AND LALVERS’,
NCOLNS INN ARC

 
 
 
  

KD 1554.L43

LL

 

 

  
    

“Daniell dew Practice.
High Court of Gkancery, with some Observations on the Pleadings i in that Court.
By the late EDMUND ROBERT DANIELL, Barrister-at-Law. Fourth Edition,
with considerable Alterations and Additions, incorporating the Statutes, Orders,
and Cases to the present time; and Braithwaite’s Record and Writ Practice;
together with references to a Companion Volume of Forms and Precedents. By LHO-
NARD FIELD and EDWARD CLENNELL DUNN, Barristers-at-Law, with the
assistance of JOHN BIDDLE, of the Master ofthe Rolls’ Chambers, 2 vols, 1865-7,
Price £4. 4s. cloth.

** The Editors of the epresent, edition deserve the praise at least of having constituted a ma;
_.—hifieent and almost ct storehouse, and the practising lawyer who does not read, but ate
Kees consults, will regar at as a mine in which he may dig for the precious ore, and will appre-
-elate properly the laborious accuracy which oh gives him in a single minute the result of many
hours’ resear epintd 7 dive ests and less complete treatises. It contains, with one exception
which proves the vuleall the materials for forming » conclusion on ‘any;point of procedure,
and forms, point of view, as perfect a compendium of the en pepe ubeet as could be
i oe ortdi P= Law Journal, Fa 25, 1867.

   
  

sa

 

 

 

a Treatise: 0 i: ‘the Law’ of Executors ‘aa ‘and. Adminis-

 

 

 

The Practice of the . Referees’ Gourts,} Par el; ament,

in regard to-Engin ering. Details, Hfficiency of Works, and Pah ‘and Water and
Het: “Gas Bills; with a Chaptér- dn Claims to Compensation, By JOHN. SHIRESS
Wass, oie of the Mi dis as Barrister-at- Law: an. 8yo: “1866: “Price 21s.,
cloth lettere “ae

-Griffith’s Law and Practice in Bankruptcy ; with an
Appendix of Statutes, Orders, Forms, and Fees. Partly founded on the eleventh
edition of Archbold’s Treatise. By WILLIAM DOWNES GRIFFITH, Esq.,
assisted by C, A. HOLMES, Esq., Barristers-at-Law. In 2 vols., royal 8vo, 1867.
Price £2. 10s., cloth.

Arrangements with Debtors and Creditors under
- “the Bankruptey Act, 1861. A Collection of Precedents, with an Introduction and
-. Notes, and a Digest of Cases. By J. P. DE GPX, of Lincoln’s Inn, Hsq., one of her
 Majesty’s Counsel, and RICHARD HORTON SMITH,.of Lincoln’s Ton, Hsq.,

_ Barrister-at-Law. Royal 80. 1867, Price18s},¢loth. =

Smith’s Compendium - of the Liaw of Real and Per-

SONAL PROPERTY. A Compendium of the Law of Real and Personal Property,

~ connected with ‘Conveyancing; designed ‘as'a comprehensive Second Book for Stu-

~ dents,.and_as-a- Digestrof the most useful learning for Practitioners. By JOSIAH W.

- “SMITH, Esq. B. .., one of her, Majesty’s Counsel. Third Hdstion, “In. l«thick
Vols Byoe 1 fice 35s., cloth, :

it aia of Equity J urisprudence, 1866

fi quity. Jurisprudence, founded on ‘ Story’s Commentaric¢s/-an

 

   
  
   
    
 

 

 

  
 

  

 

ecurring: “in-Chancery and Conveyancing, and in the General Practice of a

aentls Edigon* Sgn! 1866. Price 12s., cloth,

 

‘By, OSIAH W. ‘SMITH, Hsq., B.C.L., one of her Moonee © Counsel, ‘

Cornell University Library

hie Santee af the »

 TRATORS. By the Right “Hon: Sir EDWARD VAUGHAN WILLIAMS- (late
one ofithe Judges of her May s Court of Common: Pleas): Sixth’ ‘Hdition. In2 =’
yols., royal:8vo.- 1866s: 3. 15g, clothw 3

— A ay

risdiction,’ and comprising, in a small compass, the Points “6 Bae :

wii

ag

 

  
  
   
THE LAW OF CONTRACTS.
THE
ELEMENTS

OF THE

LAW OF CONTRACTS.

BY

STEPHEN MARTIN LEAKE,

—
OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW.

LONDON:
STEVENS AND SONS, 26, BELL YARD.
LINCOLN’S INN.
1867.
LAT

PRINTED BY J. E, TAYLOR AND co.,;

LITTLE QUEEN STREET, LINCOLN’S INN FIELDS.
PREFACE.

THERE are so many treatises already existing on the law
of Contracts, that some explanation, if not apology, may
reasonably be expected from one who proposes to add to
the number.

The present work professes to treat of the elementary
rules and principles of the law of contracts, exclusively of
the detailed applications of that law to specific matters ;
such applications of the law being referred to only occa-
sionally, as subsidiary to the main object of the work, for
the purposes of proof, argument, and illustration.

It is in this respect essentially different from all those
treatises on the law of contracts which treat exclusively
or primarily, and either collectively or separately, of the
applications of the law to the various specific matters
of contract; such as the treatises on the law of vendors
and purchasers of land, the sale of goods, landlord and
tenant, carriers, insurance, bills of exchange and the like ;
and though all such works occasionally, in connection with
their immediate practical object, deal in some degree with
the general rules and principles of the law, the writer of
the present treatise is not aware of any English work un-
dertaken with the exclusive object of treating of the law of
contracts in its general and abstract form, apart from its

specific practical applications:
v1 PREFACE.

The present work has been written with that object: the
writer hag endeavoured to collect the general rules and
principles of the law of contracts, with all their details and
exceptions ; to show the grounds of authority on which they
rest, and the scope of their practical application, by means of
cases and examples selected as appropriate for that purpose;
he has also endeavoured to divide and arrange the work
methodically, according to the logical order of the subject,
in order that a proper place may be readily found for every
rule and principle ; and to carry it out with such a degree
of completeness that, it is hoped, some notice of every point
of importance may be found in its proper place.

The work is intended to form a compendium of the ele-
ments of the law of contracts: such a work, it is conceived,
may be found useful to students as an introduction to the
more elaborate treatises on the applied law, and also ser-
viceable to practitioners for occasional reference on questions
of a general character.
TABLE OF CONTENTS

a

PAGE
InrRODUCTION ‘

CHAPTER I.
THE FORMATION OF CONTRACTS.

Secrion J. § 1. Srupie Conrracts aRISING FROM AGREEMENT.

The different Kinds of Contract : , ‘ . . 7
Agreement : : 8
Promise c , ‘ 3 : 9
Consideration , ; 3 « 10
Gratuitous Promises ; ‘ : : - 10
Executed and executory Considerations 7 é . Oo
Form of Simple Contracts by Agreement : ‘ é » ji
Express and implied Contracts , ‘ . il
Contracts in Writing 3 : ‘ : 42
Offer and Acceptance of Terms . 3 ‘ 2 12
Offer unaccepted . : : . 18
Variance between Offer and Acceptance : . 14
Preliminary Negotiations ‘ 3 . , 3 . 16
Continuance of Offer. . eo ck. 3B 17
Revocation of Offer 4 ; j : ‘ 2 ; » 20
Refusal of Offer 2 ; : : ; : 20
Offer not assignable 3 : : : 23
Contracts arising upon executed Considerations. * ; 23
Consideration executed upon Request : ; i 24
Acceptance of executed Consideration . é : ‘ 2
Consideration obtained by Wrong or Fraud . 29
Part Performance of executory Consideration . 31
Complete Performance of executory Consideration 36
The Promise implied upon executed Consideration . 37
Quantum meruit and Quantum valebat : . 38

§ 2. Contracts imrLizp in Law.

Contracts implied in Law. : 3 : - 38
Money paid : : a ; 40
Express and implied Request| : . . ; . 40
vill CONTENTS.

Compulsory Payment of Liability of another
Payment by Surety ‘ ‘
Contribution between Co-debtors :

Payment of Rent of another under Distress .
Payment by Tenant of Charges on Land
Payment compelled by Wrong or Fraud
Voluntary and other Payments not recoverable
Payment must be of Money .

Money received
Money obtained by Wrong or Fraud.

Money derived from Gooda obtained by Wrong or Fraud
Involuntary Payments .
under Duress and Oppression

Legal Process. 2 - :
Extortion . z , :
Money paid under Mistake- . i

under Mistake of Law
Money paid for Consideration which has failed
Partial Failure of Consideration
Money paid under illegal Contract .
by Party not in pari Delicto
Receipt must be of Money
Account Stated .
Admission of Debt
To and by whom made
In what Form :
What Debt will support Account stated
Debts created by foreign Judgments
Grounds on which foreign Judgment may be questioned
Debts created by foreign Statutes . :

Srction II. Contracts unpER SEAL.

Contracts under Seal
Deed
Signing
Sealing
Delivery
Escrow ‘
Time of Deed taking Effect. ‘ 2
Execution of Deed in Blank .
Acceptance and Disclaimer
Deed Poll and Indenture
Bonds .
The Consideration i in Conitracts under Seal
Remedies upon Contracts under Seal
Priority in Administration of Assets
Remedy against Heir and Devisee .
Limitation of Action
Merger by Contract under Seal
Estoppel by Deed
Release or Alteration of Deed

Section III. Contracts or Recorp.

Record
Judgments
Warrant of Attor ney and Cognovit “Actionem
Remedies on Judgments—
by Execution

PAGE
41
42
43
44
44
45
46
46
47
48
50
52
52
54
56
57
59
60
62
64
66
67
68
68
69
70
71
73

75

88
89
sy

91
CONTENTS. 1x

PAGE

by Action . ‘ 3 ‘ x « 1
Effect « of Judgment upon Cause of Action—

in Merger s ‘ . i - 92

in Estoppel ‘ . 3 ‘ » 98

Effect of judgment in charging Land of Debtor. ‘ » 93

Priority in Administration of Assets : : : . 95

Recognizance F j ‘ j z . 95

Statute Merchant and Staple ‘ “ ‘ 5 D . 95

Debts created by Statutes . 5 é “ 96

Srction IV. Contracts 1n WRITING.

Contracts in Writing by Agreement of the Parties ‘i ‘ j . 97
required to be in Writing by Statute. : 3 . 99
contained in several written Documents 3 ‘ é - - 101
partly in Writing and partly parol : : - 101

Written Contract cannot be varied by extrinsic Evidence z - 103

Extrinsic Evidence admissible to provre—
the making of the Agreement . 2 = . 106
that the Writmg was not intended as a Contract : - 107
that the agreement was induced by Mistake, Fraud, or Duress - 108
that the Wr iting was signed Seely : ‘ ‘. : . 109
Usages of Trade. : : F 4 5 . 110

“to annex Incidents é z ¥ 3 és s x D2

to explain Words and Phrases 3 . : . 116

to Identify the Parties and the Matter . ‘ : . 119
Patent and latent Ambiguity . . 4 . 122
Ilegality . : ‘ . a ‘ . . 123
Construction of written Contracts : : : ; 123

Section V. Tue Stature oF Fravps.
§ 1. ConTRACTS WITHIN THE STaTUTE.

Promise by Executor or Administrator to answer out of his own Estate 125

Promise to pay Debt of Testator or Intestate . : . . 125
Promise to pay Legacy or distributive Share of Estate . 8 - 126
Promise to answer for the Debt, Default, or Miscarriages of another . 126
There must be a separate Liability of another . 126
Promises made in Consideration of discharging the Debtor . 128
Promises made to Promisee who is not the Creditor . . 129
Default and Miscarriages : : : ; . 129
Consideration not required to be in “Writing 7 130
Agreement upon Consideration of Marriage é - P . 130
Mutual Promises to marry. : : P z - 1380
Representations made to induce Marriage : - 130
Contract or Sale of any Interest in Land ; ‘ 3 : 131
Tenancies and Occupation of Land s if ‘ ‘ ‘ . 1381
Mortgages and Equity of Redemption . a ‘ ‘ 132
Shares in Companies holding Land 2 : : ; z - 182
Fixtures - : : . 133
Emblements and Produce of Land ; ; : 2 si » 133
Licenses to enter Land . 134
Agreement not to be performed within one Year from the making thereof 135
Contracts which may be performed within the Year ‘ : 186
Contracts determmable within the Year . ‘ : 5 . 137
Contracts for the Sale of Goods of the Value of £10 x 137

Lord Tenterden’s Act, as to Contracts for the ee of Goods to
be delivered . 137
x CONTENTS.

PAG

substituting Value for Price. “ : : . . 138
Shares in Companies . ‘ é 2 138
Emblements and Produce of Land . z : 7 138
Fixtures . : 3 . 138
Contracts for Work in making Goods : . 138
Sales including several Articles. . . 140

§ 2. Forms anp ConDITIONS REQUIRED BY THE Statute or FRravups.

Memorandum or Note in Writing under ss. 4 and 17 141
What Note sufficient . g : ‘ ‘ 141
When Note may be made ; ; 143
Contents of Note . . . 143

must show a complete Contract 143
must contain the Contract actually made 147

Signature of Party charged . : . 148
of Party charging not vequired ‘ * 150
by Agent of Party charged . 160

Acceptance and Receipt of Goods under s. 17 . 153
The Acceptance . : ‘ . 154
The Delivery and Receipt of the Goods A . 156

Constructive Delivery :—
Where the Goods are in Possession of the Buyer ‘ . 156

Where the Goods remain in the Possession of the Seller . 157
Where the Goods remain in the Possession ofan Agent . 159
Acceptance and Receipt of part of the Goods 3 : : 189
Earnest or part Payment . - . 160

§ 3. Errecr or THE Statute oF Fraups.

Effect upon Contracts within the Statute . . 161
Effect as to the Property in Goods sold by Contract within the Statute . 162
Contracts partly within the Statute . 164
Effect after Execution of the Contract in Whole orin Part. : 165
Effect of part Performance in Equity ; 3 ; x . 167

Section VI. § 1. Mistaxn.

Mistake : : . 168

Mistake of one Party, not known to the other , . 168

Ground for refusing specific per formance in Equity : 170

known to the other : : : , : » EL

Mistake common to both Parties . : : . ATZ

in expressing the Agreement , 172

Ground in Equity for refor ming or setting aside the Contr act 6174

in matter inducing the Agreement . 3 : . 176

as to the application of the Agreement . : . 178

Mistake as matter for pleading at Law upon Equitable Grounds 180
§ 2. Fraup.

Fraud . : . Isl

by Misrepresentation of Fact ; ; 199

by Concealinent of Fact. : Z : . 183

Fraudulent Intention . . . . é . 186

Fraud inducing the Contract: : é ¢ . 182

Fraud by a Stranger to the Contract ‘ . 191
CONTENTS.

by Agent ofa Party.
Avoidance of Contract induced by Fraud ‘
Etfect of Avoidance of the Contract upon the Rights of the Parties
upon the Rights of ‘third Parties acquired under the Contract
Contracts with Warranties of, or conditional upon the Truth of Repre-
sentations . . ‘ ‘
Contracts of Sale with Warranty
Contracts of Insurance
Contracts of Guarantee .
Relief in Equity against Fraud —.
Fraud as matter for Pleading at Law upon Equit able Gr ounds

§ 3. Durzss.

Duress to the Person—
by Violence
by Threats. .
Duress of Goods :

Agreement made under, i is not voidable
Money obtained by, is recoverable . ,
Duress must be the Act of a Party to the Contract

Contract induced by Duress on third party
Avoidance of Agreement induced by Duress .
Relief in Equity against Duress

CHAPTER II.

PARTIES TO CONTRACTS.

Section J. Or Parties 1n GENERAL.

Number of Parties
Joint Contracts
Joint Debtors
Liability of surviving Joint Debtor
Joint Creditors :
Right of surviving Joint Creditor
Several Contracts. . ‘
Joint and Several Contracts
Several persons cannot be entitled both Jointly and. Severally .
Construction of Contracts as to Joint and Several Parties
As to Joint or Several Liability
As to Joint or Several Rights
Rights of Joint and Several Parties as between themselves
Contract affects parties only, as to Right or Liability under it
Construction of Contracts in Writing as to Parties
Contracts expressed to be made évfer partes

Section II. Capaciry or Parris.

Contracts with Infants
Liability of Infant on Contracts
for Wrongs
for Fraud inducing Coutract 3
on Obligations incident to Property
Money paid by Infant under a Contract, when recoverable
Ratification of Contract after full age

1
PAGE
192
193
195
196

198
198
199
202
204
205

206
206
206
207
207
208
208
209
209

210
212
213
215
215
216
216
217
217
217
218
218
220
221
223
223

226
226
226
227
227
228
229
Xl CONTENTS.

of Liability incident to Property
Limited and conditional Ratification
Right of Infant on Contract .
Contract of Infant for Necessaries
What are Necessaries.
Securities given by Infant for ‘Debt for Necessaries
Contracts with married Women :—
Liability of married Woman on Contract
for Wrongs
for Fraud inducing a Contract
when Husband civilly dead
as sole Trader in London ‘ ‘
Effect of Separation, Divorce, and Order of Protection .
Power of charging her separate property in Equity
Right of married Woman, upon Contract made with her
Contracts with Husband and Wife jointly
Contracts in which Wife is meritorious cause of Action
When Husband may join Wife in suing
When Wife may sue alone, subject to Plea in Abatement
Authority of Wife to contract as Agent for Husband
Authority presumed from Cohabitation
to what, it extends
of Woman living as Wife without Marriage
Revocation of 2
Authority of Wife to bind Husband for Necessaries upon his refusal to
maintain her
Wife having sufficient Funds .
Adultery of Wife . ‘ : P
What are Necessaries  .
Ratification by Husband of Contracts made by Wife without “Authority
Contracts with Persons in a state = Insanity :
Insanity Z
Liability on Contracts made in state of Insanity
on Contracts for Necessaries
Intoxication a
Contracts with Corporations :
Form of Contracts by Corporations
Common seal 5 .
Corporate name . 7
Statutory forms of Contracts
Exceptions to general rule requiring Common Seal.
Bills of exchange and Promissory Notes
Ordinary trading Contracts
Contracts of common Necessity
Contracts for ordinary Services
Use and occupation of Land
Contracts implied in Law :
Contracts arising upon executed Considerations
Effect of Corporation suing upon executory Contract
Rules of equity as to Contracts of Corporations
Powers of Corporations to contract
Contracts ultra vires
The Agents appointed to act for Cor porations
Directors under the Companies Clauses Act
their Powers of contracting
Directors under the Companies Act . .
How far persons dealing with Directors are affected with notice of
their powers
Ratification by Company of unauthorized Contract
Contracts made by Promoters of Company

PAGE
230
231
231
232
232
234

234
235
235
236
236
236
238
240
240
240
240
241
242
243
243
243
243

243
244
245
246
246

247
247
247
249

250
250
251
251
251
252
253
254
CONTENTS. Xill

Ssction III. Princrpan anp AGENT.

PAGE
Appointment of Agent . : i 3 - : : . 265
Power of Attorney é : : . ; 2 2 . 265
Authority in Writing . : . ‘ a . 9 . 266
Implied Authority i : ‘ i ‘ . 266
Authority arising from Necessity i , ‘ ‘ ; i . 267
Ratification of assumed Authority . 2 ‘ - 268
Extent of Authority . ‘ : ‘ . 270
Construction of written authority ‘ ; : : . ‘ . 270
General authority . ‘ z 5 . 271
Particular restrictions of general authority : : s . 272
Particular authority : i é é : : . 273
Broker . e j ‘ : é ‘ : . 274
Factor . 3 ; ‘ ‘ i 5 . 275
Del credere Agent . : ‘ : . 276
Partners ; : : : j é . 277
Master and Servant : F . 283
Execution of Agency . : . é 5 . 284
Joint Authorities 3 - 7 ‘4 : . 284
Contracts under Seal. 3 : ; i . 285
Simple Contracts , . 285
Delegation of Authority : : : : . 284
Revocation of Authority ‘ ‘ ‘ . . 286
Authority coupled with interest, irrevocable : 4 . . 286
Notice of Revocation, when necessary. : ‘ : . 288
Revocation by Death. 288
Construction of Contracts as to Principal or Agent being the actual
party . 289
Contracts under Seal and in Writing Z ‘ ‘ . 290
Bills of Exchange and Notes . 3 293
Extrinsic Evidence not admissible to discharge party to written
Contract : : . 294
Contracts not in Writing ‘ ; 4 . 295
Liability of Principal on contract of Agent. 296

Extrinsic Evidence admissible to charge Principal on written Contract 297
Exception as to Bills and Notes and Contracts under seal 298

Condition that Principal is not prejudiced by being se . 299
Charging Principal discharges Agent - . 300
Right of Principal upon Contract of Agent . 300
Extrinsic Evidence admissible to entitle Principal ¢ on Written Con-
tract. - 302
Exception as to Bills and Notes and Contracts under Seal 302
Condition that other partiy not prejudiced es the claim of the
Principal 303
Claim of Principal discharges liability to Agent ‘ : * . 804
Contract by party as Agent who is himself the Principal ‘ 7 . 805
Where no Principal named in the Contract. : 2 . 804
Where a Principal is named . . 806
Contracts made by an Agent for a named Principal without authority . 3807
Implied Warranty of assumed Authority : ‘ . 807

CHAPTER III.
THE MATTER OF CONTRACTS.

Section I. Tor CoNsIDERATION.

The Matter of Contracts , ‘ 3 . 809
The Consideration ‘ ‘ . ‘ . 3810
XIV CONTENTS.

in simple Contracts

in Contracts under Seal é

in Bills of Exchange and promissory Notes
Adequacy of the Consideration
Good and valuable Considerations
Rule that Consideration must move from the Plaintiff
Executed and executory Considerations
Past Consideration
Consideration of previous Moral Obligation
Consideration of previous Legal Obligation
Impossible Consideration
Illegal Consideration
Consideration partly void
Failure of Consideration
Matter of the Consideration z

Forbearance of Rights or Claims

Equitable Rights . ;

Pretended and supposed Rights

Disputed and Doubtful Rights
Doctrines of Equity respecting the Consideration .

Section IJ. Tur Promise.

Absolute Promise

Conditional Promises
Condition precedent
Condition subsequent

Promise conditional upon Lapse of Time
upon a certain Event
upon an uncertain Event
upon the Will or Act of the Promiser
upen an Act of a third Party
upon Request or Demand
upon Notice of some matter .

Construction of Contracts as to Conditions Precedent
Dependent and independent mutual Promises
Rules derived from times of Performance of the Promises
Rules derived from the matter of mutual Promises

Performance of Conditions Precedent
Partial Performance
Excuses of Performance
Pleading Performance and excuses of” Conditions precedent

Alternative Promises. : . :
Right of Election of Alternative
Election once made is ee
Notice of Election ‘

Effect of Impossibility of one ; Alternative

Sgection III. Impossipte Contracts.

Impossibility of Performance
Physical Impossibility
Practical Impossibility .
Impossibility arising by the Act of God
Legal Impossibility
Impossibility at the Time of Contracting
known to the Parties
Legal Impossibility presumed to be known
unknown to the Parties
Contracts conditional upon assumed Possibility

PAGE
310
310
311
311
312
313
313
314,
314
318
321
322
322
323
323
324,
326
326
329
330

356
357
357
358
358
358
359
359
360
360
CONTENTS.

Impossibility subsequent to Contracting
Contract in general not dischar, zed
Contracts conditional upon continued Possibility
Impossibility caused by the Promisee
Impossibility caused by the Law
Impossibility relative to the Promiser
Undertakings for the Act of another
Impossibility of one of alternative Promises
at time of contracting
subsequently supervening
after Election made
Effect of the Consideration being or becoming impossible of Perform-
ance : : $

Section [V. Innecan Contracts.

Illegality
by the Common Law
by Statute .
Effect of Penalties
Wagering Contracts
Securities for Money won by Wagering
Wagering Policies of Insurance é
Wagers on the price of Public Stocks
Sale of public Offices
Contracts in consideration of resigning public ‘Offices
Contracts for the Commission of Wrongs and Offences
Compounding Wrongs and Offences
Maintenance and Champerty .
Contracts in Restraint of Trade
Contracts infringing regulations of Trade
Contracts by disqualified Persons
Trading with an Enemy
Effect of War upon previous Contract
Contracts in restraint of Marriage
Contracts to procure Marriage
Separation Deeds
Immoral Contracts :
Contracts made for illegal purpose
Goods sold for illegal purpose
Premises let for illegal purpose
Money lent for illegal purpose
Money paid for illegal purpose
Contracts in fraud of a third Party
Arrangements with Creditor in fraud of other Creditors .
Effect of Ilegality in avoiding Contract :
Illegal Consideration
Extrinsic Evidence admissible to show legality
Effect of Illegality after Execution of Contract
Money paid as Consideration of Illegal Contract may be recovered
not after Execution of the Contract ‘
except by party not in pari delicto
Effect of Illegality in part of the Consideration
in part of the Promise
Effect of Ilegality arising subsequently to the Contract

xV

PAGE
361
362
364
366
367
368
369
371
371
371
374

375

376
376
376
376
377
378
379
381
381
382
383,
383
885
387
392
304
395
3807
398
398

399
400
400
401
402
402
402
403

405
405
405
107
407
407
409
410
411
Xvl CONTENTS.

CHAPTER IV.

THE DISCHARGE OF CONTRACTS.
Section I. DiscHarGEe or Contracts By AGREEMENT.

Discharge of Contracts

Discharge of simple Contracts by Agreement
Contracts in Writing.
Contracts within the Statute of Frauds
Bills of Exchange and Promissory Notes

Discharge of Contracts under Seal by Agreement
Discharge of Conditions precedent to Covenant
Parol agreement waiving terms of deed . :

Contracts reserving Option to rescind in certain events .

Sxction II. Atreration oF Written InstruMENT.

Alteration by one of the Parties

by a Stranger
Material Alterations
Immaterial Alteratious . 3
Effect of Alteration in avoiding an Instrument

as to Rights vested previous to the Alteration
Alteration by Accident or Mistake 3 F
Alteration by Consent of both Parties

upon change of Intention

to Correct Mistake in the Instrument

while the Instrument remains in fieri .
Party producing Instrument bound to explain an ‘Alteration
Loss of Written Instrument ‘

of Negotiable Instrument

Section III. Perrormance oF Contract.

Performance :
Tender of Performance .
Performance must accord with the ‘Terms of the Contract
Performance in particular Cases :—
Contracts to pay Money
Payment in Satisfaction
Contracts for the Sale of Goods,—
as to the Quantity to be delivered
as to the Quality of the goods
Contracts for the Sale of Land,— .
as to Title
as to description of Land
Time of Performance
Where no time expressly appointed
Construction of Contracts as to time

Meaning of terms “ forthwith,” “ from the date,” “yonth,” ete.

Relief in Equity against Lapse of Time
Where Time is of the Essence of the Contract
Place of Performance .

PAGE
413
413
414
415
418
418
419
420
421

424
425
425
427
428
429
430
430
430
430
432
433
433
434

435
435
435

136
436

437
438
439
439
439
440
443
444
444
447
AdS
448
CONTENTS.

Section IV. Tenper.

Tender s .
Plea of Tender
Continued Readiness to pay 5
Payment into Court of Sum tendered
When Tender may be made .
Debts of indefinite Credit
How Tender may be made
In what Coin
Amount to be Tendered
Tender must be unconditional ‘
To and by whom Tender may be made .

Section V. BreacH or Contract.

Breach of Contract
Acts equivalent to Breach
Promiser disabling himself from Performance »
Promiser refusing to perform
Refusal not accepted as Breach
may be retracted before Acceptance
waives Conditions precedent
Discharge of Right of Action for Breach

Section VI. Accorp anp SATISFACTION.

Accord and Satisfaction
of Specialty Debts ‘

What may be given and accepted i in Satisfaction
ee in Satisfaction § . a

New Contract accepted in Satisfaction. 2 : .

Adequacy of the Satisfaction immaterial

Accord without Satisfaction is inoperative

By and with whom Accord and Satisfaction may be made

Section VII. Payment.

Payment in Performance of Contract
in Satisfaction of Breach
Payment of Specialty Debts
Transactions equivalent to Payment
Payment of smaller Sum than the Debt .
Setting off cross Items in account
Bill or Note taken on account of the Debt
in Satisfaction of the Debt F
where Debtor primarily liable on the Security |
where Debtor secondarily liable :
Loss of Security taken.
Bill or Note taken for Specialty Debt
Goods taken in Payment
Payment according to Direction of Creditor
Receipt given by Creditor
Receipt under Seal .
Payment to one of joint Creditors
by one of joimt Debtors
by Agent : : : ‘
by Stranger , i ; : : ‘ ‘
to Agent ‘ : ‘ : ‘ ;
bh

XVil

PAGE
461
452
452
453
454
454
455
456
457
458
459

460
460
462
462
463
464
464
465

465
466
167
4b7
467
468
468
470

471
471
473
474
474
475
476
477
478
478
480
481
481
ds2
483
485
486
487
487
487
488
xvill CONTENTS.

Appropriation of Payments
Right of Debtor to appropriate Payment
Presumptive Appropriation
Right of Creditor to appropriate
In favour of what Debts
When it arises
Appropriation by Law

Section VIII. Revease.

Release of Right of Action
must be under Seal
requires no Consideration .
operates in Estoppel :
Parol Waiver of Bills and Notes
Effect of parol Release in a Aga
Conditional Release
Construction of Release
Release of one of Co-debtors
Reservation of Right against other Co-debtors
Release by one of Co-creditors :
Release in Fraud of third Party
by one Co-creditor in Fraud of others
by Trustee in Fraud of cestui que trust
Replication upon equitable sala to Plea of Release
Release obtained by Fraud .
Covenant not to sue :
not to sue one of Co-debtors .
not to sue for limited Time

Section IX. Mercer anp Estopre..

Merger of inferior in higher Remedy
The Remedies must be co-extensive
as to the Debt
as to the Parties
Merger by Judgment recovered against Defendant
against one of joint Debtors ‘
Estoppel by Judgment against Plaintiff’
by the Issues decided in a Suit
Effect of another Action pending .
Foreign Judgment against Defendant
against Plaintiff

Section X. ARBITRATION AND AWaRrD.

Discharge of Right of Action by Arbitration and Award
by Performance of Award
by Award without Performance.
Award is conclusive as to Rights referred
Modes of enforcing Award .
Pendency of Arbitration before Award
Agreement to refer to Arbitration
does not oust Jurisdiction of Court
Action may be brought upon .
Specific Performance of, refused
Staying Proceedings after :
Arbitration as to Debt or Damages stipulated for as Cini pr ecedent

PAGE
491
491
491
494
494
496
496

497
498
498
498
499
499
499
500
500
501
562
502
502
502
503
503
504
504
505

506
506
507
507
508
509
510
511
513
514
514

515
515
CONTEN'TS.

Sxcrion XI. Srarures or Limrrarion.

Statutes limiting Actions :—
on simple Contracts
on Contracts by Specialty
on Debts by Statute .
Disabilities excepted by the Statutes
affecting Plaintiffs :
affecting Defendants
When the Statutes of Limitation begin to run
Effect of the Statutes
Renewal of simple contract Debts _
by Promise or Acknowledgment
Conditional and limited Promise
by Payment of Part of Debt
by Payment of Interest
Renewal constitutes a new Cause of Action
applies only to Debts
Renewal of Specialty Debts .. :
Renewal of Liability by one of joint Debtors

does not renew the Debt against the other joint Debtor 3

Capacity of Iufant and married Woman to renew Debt .

Section XII. Ser-orr.

No Right of Set-off at Common Law
Right of Set-off in Equity
Statutes of Set-off .
Set-off of mutual Debts
available only by Plea .
What Debts may be the Subject of Set off
Claims for Damages 5
Claims which may be framed either for Debt or Damages
Claims partly for Debt and partly for seas
Debts barred by Statute of Limitation
Debts discharged by Bankruptcy
Debts for which Debtor has been taken in Exccution
The Debts must be mutual .
Joint and several Debts .
Debts due from several Plaintiffs j joining 3 in Action .
Debts to or from Husband and Wife i
to or from Executors and Administrators
to or from Testator or Intestate
to or from Bankrupt
to or from Companies
to or from Trustee

Set-off of mutual Credits with Bankrupt , ; : :

What are mutual Credits

Section XIII. Banxruprey.

Bankruptcy discharges all Claims proveable
The Order of Discharge .
Adjudication and Proof of Debt alone no ? Discharge
What Claims are proveable in Bankruptcy
Debts contracted after Act of Bankruptcy —.
Debts not payable at Time of Act of ae
Debts payable by Instalments
Annuities 3 .

b2

X1X

PAG
521
o21
oe
524.
524
525
526
529
5381
5381
534
536
539
541
542
542,
543
544
5A

545
540
545
546
546
5AT
547
549
549
550
5900
550
550
550
551.
551
551
552
502
552
553
553
554

555
556
556
556
556
556
558
558
xXx CONTENTS.

PAGE
Policies of Insurance. é 5 a : 3 : . 559
Debts paid by surety or bail . : zi A é 3 . 559
Debts payable upon a Contingency . - : 2 é ‘ . 560
Liability to pay Money upon a Contingency . . : fs . 560
Premiums upon Policy of Insurance . ‘ . 561
Liability on Contract for unliquidated Damages ‘ ‘ .. 562

CHAPTER V.
DAMAGES.

The Damages recoverable for Breach of Contract : ‘ « 564
General Damage . - a : ; ; ‘ 5 . 565
Nominal Damage . j : : 5 : - 567
Special Damage : : : é : $ - 569

Rule in Hadley v. Baxendale : a % 7 562

Contracts with liquidated es and Penalties . , ; . 573
Relief against Penalty . 3 ‘ . : : . 577
Specific Performance. » 577
Construction of Contracts as to liquidated Damages and Penalties . 578

Rules for distinguishing them . Fi é ‘ ‘ . 580

Interest, when recoverable at Common Law . 5 ‘ ‘ ij . 584
not recoverable unless Intention appears 3 3 2 . 584
recoverable on Bills and Notes 3 : i ; s 3 585
on Bonds, Mortgages, etc. . : 5 : . O85
according to usual course of dealing : 3 . 585

Compound Interest . ‘ . = . . 587
When in nature of Debt or Damages. é : ; 557

Interest under the Statute 3&4 Wm.IV.c. 42. : OST

must be assessed as Damages . . : 5 as7T
‘Jury may refuse. PS : 588
Cases within the Statute : 7 : : 2 . 588

Interest upon Judgment Debts. : : 7 3 ‘ 588

Interest proveable in Bankruptcy . ‘ a : . 588

Damages recoverable in particular Actions :—

On Contracta for Sale of Goods. 5 : . 589
for not paying the Priee . b : 3 - 589

for not accepting the Goods ‘ : é A . 589

for not delivering the Goods. : . : : . 590

For breach in not delivering specific Chattel 2 j ‘ : . 592
Execution for Delivery of ‘ 3 ‘ é 592

For breach of Warranty of specific Goods . ‘ 3 ‘ » 593
of Quality of Goods : : , j ; SO

On Contracts for Sale of Land - ; ‘ z : 595
On Covenants for Title ‘ : . 596
Costs of Actions caused by Breach of Contract : : - 597

CHAPTER VI.

ASSIGNMENT OF CONTRACTS.
Suction I. Assianmenr By Act on AGREEMENT OF THE PaRtins

Contracts not assignable at Common Law
Assignment of Contracts in Equity
Specific Performance in favour of Assignee
Assignee may sue in his own name .

601
601
Guz
602
CONTENTS.

Consideration necessary to support Assignment
Form of equitable Assignmeut
Notice to Debtor necessary to complete Title of Assignee |
Assignee takes subject to quities : ‘
Equitable Assignment recognised in Law
is a valid Consideration for a Promise
Forbearance by Assignee is a valid Consideration
Assignor is Trustee for Assignee
Rights of Assignee protected . é
may be asserted in Pleading on equitable ground
Assignment of Debt by Agreement of all the Parties
Right of Assignee under the new Agere
Consideration of the Agreement
Assignment of Debt for Money received 3
Kifect of Order upon Debtor to pay to another
Assignment of Liability for a Debt ;
New Debtor accepted in place of original one .
Contracts assignable in Law .
Bills of Exchange .
Promissory Notes .
Title of Indorsee not affected by equities
Bills of Lading
Property assignable by ‘
Statute rendering the Contract assignable
Title of Indorsee : ;
Bail Bonds assignable by Statute
Replevin Bond
Administration Bond

Section II. Covenants ANNEXED TO Estates In Lanp.

Covenants annexed to, or running with, Estates in Land
Benefit of Covenant may be ‘annexed to Estate
Burden of Covenant cannot be annexed, except in Leases
Assignee with Notice bound in Equity
Covenants between Lessor and Lessee
annexed to the Term by Common Law
annexed to the Reversion by Statute
Privity of Estate and Privity of Contract : :
What Covenants may be annexed to Estates in Land. : 7
Covenants relating to the Land ‘
Covenants collateral to the Land
Covenants for Title ‘
Covenants in Leases to pay Rent, to renew, insure, ete.
To what Estates Covenants may be annexed . ss
Estates in Fee and for Years
Incorporeal Hereditaments
Equitable Estates .
Reversion by Estoppel 2
Covenants cannot be annexed to Goods .
Who may be entitled or liable as Assignees
Grantee, Devisee, Heir, or Executor ‘
Assignee must take same Estate to which Covenants are annexed
On Leases made under Powers : . : q i
On Mortgages :
On Assignment of Part of Reversion
On Assignment of Part of Term.
Assignee not liable after Assignment by him

XXL
PAGE
603
603
603
604
605
605
605
605
606
606
607
608
609
609
609
610
611
611
611
612
612
612
613
613
614
614
614
615

615
615
615
616
617
617
617
618
618
618
619
619
620
622
622
623
623
623
624
625
625
625
626
627
627
628
629
XxX CONTENTS.

PAGK
Assignee not entitled or liable for Breach of Covenant before Assign-
ment tohim  . ‘ é ‘ . 629
Liability of Lessee after Assignment ofTem. . . . 629
Right of Lessor after Assignment of Reversion é : 629
Srcrron III. Asstenment or Conrracts By Marntace.
Marriage assigns to Husband the rights of Contract of Wife . 630
Husband must join Wife in suing . 4 : » 630
may sue alone on negotiable Tnstrument ; ‘ : . 630
Wife may sue alone, subject to Plea in Abatement . . + 631
Marriage assigns to Husband the Liabilities of Wife. : : . 631
Husband must be sued jointly with Wife ‘ 3 . 631
Wile may be sued alone, subject to Plea in Abatement ‘ . 631
Effect of Death of Husband, Wife surviving . ; ; ; - 632
upon rights of Contract of Wife 4 ‘9 4 632
upon Liabilities . : ‘ : ‘ . 632
Effect of Death of Wife, Husband surviving : . 633

Reduction into Possession by Husband of rights of Contract of Ww ife 633
Bankruptcy of Husband transfers his right in Wife’s Contracts to his

Assignees . ‘ : 635
discharges Debts of Wife for which ‘he was liable. : z 635
Divorce - ‘ . 63d

Section IV. Asstanment or Contracts By Dearu.

Right of Executor upon Contracts of deceased a F . 636
Liability of Executor upon Contracts of deceased . 4 ‘ . 636
Liability of Heir and Devisee on Contracts binding the heir . , 637
Action given by Statute against Heir and Devisee . . A . 637
Real Estate made Assets for Payment of Debts. 5 638
Covenants annexed to real Estate pass with the Land. 639
When Executor may sue for Breach in Lifetime of Deceased . 639
Contracts for Sale of Lands pass to Executorin Law. . 640
Effect of, in Equity : . j i : - . 641
Bills of Exchange and Promissory Notes . 5 , : . G41
Indorsement by Executor . : 4 3 641
Joint Contracts, Right and Liability of Survivors % é é 642
Contracts discharged by Death of Party ‘ . 642
Contracts relating to the Person and personal Qualities : : . 62

Section V. AssiGNMENT BY BanKRUPTCY.

Rights of Contract of Bankrupt vest in Assignees . : : a 644
Rights of Action of Bankrupt vest in Assignees. : ‘ . 645

except those for personal Injury. ‘ : e i - 646
Executory Contracts of Bankrupt F a . : 647

Assignees may complete and recover upon A : . : - G47
Contracts involving personal Skill or Qualities 7 ‘ . . - 648
Contracts to which Bankrupt entitled only as Trustee. - 649

Debts assigned by him before Bankruptcy . ‘ A e . 649
Debts in the Order and Disposition of Bankrupt . . . ‘ . 650
Contracts made after Bankruptey . . ‘ 2 is a . 650

Right of uncertificated Bankrupt upon . c : ‘ » 651
TABLE OF CASES.

Abbot v. Smith, 214.

Abbott v. Greenwood, 338.

v. Hendricks, 106.

v. Hicks, 560.

v. Sworder, 332.

Abbotts v. Barry, 52.

Abel v. Sutton, 279.

Acebal v. Levy, 121, 144, 148, 150,
155.

Adams v. Bankart, 280.

v. Dansey, 129.

v. Gibney, 620, 626.

v. Lindsell, 17, 18.

—— v. Ready, 92.

— v. Richards, 199, 593.

—— »v. Royal Steam Packet Co., 363.

—— v. Wordley, 105.

Addinell’s Case, 15.

Addison v. Gandasequi, 295, 297.

Agar v. Atheneum Ass. Co., 262.

v. Macklew, 518.

Aggs v. Nicholson, 294.

Agricultural Cattle Ins. Co. o. Fitz-
gerald, 429.

Aguilar v. Aguilar, 239.

Aiken v. Short, 59.

Albretcht v. Sussman, 396.

Alchorne v. Gomm, 627.

Alcinous v. Nigreu, 397.

Alder v. Boyle, 179, 358.

v. Keighley, 565.

Alderson, Ex p., 603.

v. Langdale, 426.

Aleberry v. Walby, 241.

Alexander v. Barker, 301.

». Burchfield, 480.

v. Dowie, 470.

v. Gibson, 274, 284.

v. Mackenzie, 294.

v. Vane,

v. Worman, 8.

Allan v. Sundius, 111, 114.

 

 

 

 

 

 

 

 

 

 

 

Allanson v. Atkinson, 51.

Allen v. Bennett, 101, 141, 142, 144.

v. Cameron, 63, 589.

—~— v. Harris, 468.

v. Hearn, 377.

—— v. Milner, 515.

— v. Pink, 108, 108.

—— v. Sea Fire Ass. Co., 263.

Alliance Bank v. Broom, 325.

Allies v. Probyn, 470.

Alner v. George, 484, 606.

Alsager v. Currie, 555, 558.

Alvanley v. Kinnaird, 170.

Amory v. Brodrick, 352, 461.

Amos v. Smith, 539.

Ancona v. Marks, 269.

Anderson v. Fitzgerald, 201.

—— v. Hayman, 126.

v. Hillies, 477.

—— v. Martindale, 216, 219, 222.

—— v. Radcliffe, 386.

v. Scot, 154, 155.

v. Thornton, 484.

Andree v. Fletcher, 66, 407.

Andrew v. Hancock, 45.

v. Macklin, 502.

v. Pearce, 626.

Andrews v. Belfield, 335.

v. Hawley, 49.

—— v. Smith, 126.

Ankerstein v. Clark, 240.

Annandale v. Harris, 400.

Anonymous, 136, 260, 283, 634.

Ansell v. Baker, 508.

Anstee v. Nelms, 122.

Antoine v. Morshead, 395, 396, 397.

Antrobus v. Smith, 331.

Aplin v. Capes, 605.

Appleby v. Dods, 35.

v. Meyers, 366.

Appleton v. Binks, 223, 285, 2u0
298, 370.

 

 

 

 

 

 

 

 

 
XX1V

Appleton v. Campbell, 401.

Archer v, Baynes, 146.

v. Marsh, 391.

Arden v. Sharpe, 282.

Argoll v. Cheney, 430.

Arnold v. Bainbrigge, 550.

—- v. Mayor of Poole, 255, 494,

— v. Revoult, 240, 241.

Arnott v. Holden, 561.

v. Redfern, 584.

Arnsby v. Woodward, 423.

Arvis v. Stukeley, 50.

Arthur v, Barton, 267.

Artis, Hw p., 558.

Ashbee v. Pidduck, 215.

Ashby v. Ashby, 635.

v. Janes, 70, 72, 476, 493, 539.

Ashcroft v. Morrin, 144, 147.

Ashfield v. Ashfield, 230.

Ashley v. Killick, 318.

Ashmole v. Wainwright, 53, 57, 208.

Asprey v. Levy, 45.

Astey v. Emery, 139.

Astley v. Reynolds, 53, 457.

v. Weldon, 575, 580, 582, 583.

Atherfold v. Beard, 377.

Atkins v. Banwell, 46, 316.

v. Farr, 398.

v. Hill, 316.

». Owen, 67.

Atkinson v. Bayntun, 329.

v. Bell, 139.

v. Lord Braybrooke, 74, 584.

— v., Denby, 54, 67, 404, 409.

v. Elliott, 554.

v». Hawdon, 426.

—— v. Jones, 586.

v. Ritchie, 368, 411, 412.

— v. Settre, 329,

v. Smith, 348.

Atkyns v. Kinnier, 390, 392, 583, 584.

v. Pearce, 245.

Atlee v. Backhouse, 50, 53, 54, 207,
208, 330.

Attenborough v. London, 392.

v. Mackenzie, 488.

Attorney-General v. Sitwell, 162, 176.

Attwood v. Emery, 444.

v. Munnings, 270, 294.

v. Small, 189, 190, 192.

v. Taylor, 588.

Atwood v. Partridge, 562.

Atwooll v. Atwooll, 548.

Aubert v. Gray, 396.

Aulton v. Roberts, 50.

Auriol v. Mills, 629.

Austin v. Mills, 91

Australian Royal Mail Steam Nay.
Co. v. Marzetti, 253.

Australian Steain Co, ce. Maunsey, 260,

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CASES.

Aveline v. Whisson, 77, 81, 85.
Avery v. Bowden, 463, 464.
Ayles v. Cox, 410.

Aylett v. Ashton, 238.

Ayloffe v. Scrimpshire, 505.
Ayre’s Case, 192.

Ayrey v. Davenport, 509.

Back v. Owen, 337.

Backhouse v. Ripley, 114.

Badeley v. Vigurs, 628.

Baglehole v. Walters, 186.

Bagot (Lord) v. Williams, 512.

Bailey v. Bidwell, 311.

v. Bodenham, 480.

v. Croft, 324.

v. Haines, 26.

—- v. Harris, 376.

—— v. Sweeting, 140, 146, 164.

. Wilkins, 42, 272.

Baillie v. Moore, 470.

Bain v. Cooper, 500.

Bainbridge v. Firmstone, 312.

v. Pickering, 233.

v. Wade, 121.

Baines v. wing, 273.

Baker v. Dening, 149.

— v. Dewey, 485, 498.

», Greenhill, 45.

v. Heard, 69.

v. Langhorn, 292.

— v. Paine, 175.

v. Townsend, 383.

v. Walker, 325, 481.

v, White, 398.

Baldey v. Parker, 140, 159.

Balfour v. Ernest, 260, 262.

Ball v. Dunsterville, 77.

v. Stone, 175.

Bally v. Wells, 623.

Balme v. Hutton, 51.

Banfield v. Tupper, 539.

Bamford v. Burrell, 556, 557.

Bampton v. Paulin, 128.

Banbury v. Lisset, 334.

Banister v. Scott, 562.

Bank of Australasia v. Harding, 51+.

— v. Nias, 75, 514.

Bank of England v. Anderson, 253.

Bank of Ireland 8, Evans Charitie
260.

Bankart v. Bowers, 348.

Bannerman v. White, 199, 438, 593.

Barber v. Brown, 58, 61.

v. Fox, 125, 327, 328.

—— v. Lamb, 514.

v. Pott, 56.

—- v. Richards, 198.

Barclay v. Gooch, 47.

Barden v. Keverberg, 236.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
TABLE OF CASES.

Bardwell v. Lydall, 492.

Barfoot v. Goodall, 279.

Bargate v. Shortridge, 264.

Baring v. Corrie, 274, 275, 308, 489.

Barker v. Hodgson, 368.

v. M‘Andrew, 445.

v. Richardson, 502, 503, 606.

Barkworth v. Young, 130, 142, 148,
149, 372, 373, 374.

Barlow v. Bishop, 240.

Barnes v. Brathwaite, 57.

Barnett v. Brandao, 611.

Barr v. Gibson, 178, 360.

Barrell v. Trussell, 325.

Barrett, £a p., 5538.

v. Deere, 489.

Barrow v. Arnaud, 589, 590.

Bartholomew v. Markwick, 32.

Bartlett v. Pentland, 272, 491.

v. Purnell, 151, 152.

v. Vinor, 376.

v. Wells, 227.

Bastifell v. Lloyd, 362.

Batard v. Hawes, 43.

Bate v. Payne, 41.

Bateman v. Mayor of Ashton-under-
Lyne, 258.

v. Mid-Wales Ry. Co., 259.

v. Phillips, 302.

v. Pinder, 541, 542.

Bates v. Townley, 46, 70.

Bathe v. ‘laylor, 430, 431.

Batterbury v. Vyse, 3:.7.

Battley v, Faulkner, 521, 529.

Batty v. Marriott, 378.

Bauerman v. Radenius, 606.

Baxendale v. Eastern Counties Ry.
Co., 57.

v. Great Eastern Ry. Co., 53.

v. Great Western Ry. Co., 53, 57.

v. Seale, 177, 179.

Baxter v. Burfield, 643.

v. Nurse, 443.

v. Earl of Portsmouth, 248.

Bayley v. Homan, 469.

Bayliffe v. Butterworth, 271, 272.

Baylis v. Dineley, 230, 234.

Bayne v. Walker, 365.

Beale v. Nind, 531.

Bealy v. Greenslade, 539.

Beard v. Webb, 2386.

Beaumont v. Brengeri, 158.

v. Dukes, 183.

—— »v. Greathead, 472, 487, 567, 568.

v. Reeve, 317, 399.

Beavan v. M‘Donnell, 247, 248.

Beckham v. Drake, 98, 222, 223, 225,
297, 298, 583, 646, 649.

Beckwith v. Bullen, 548.

Bedford (Earlof) v. Bp. of Exeter, 513.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

XXV

Beech ». Jones, 599.

Beecham v. Smith, 217.

Beeston v. Collyer, 135, 443.

Behn v. Burness, 199, 342, 350.

Beldon v. Campbell, 267, 604.

Bell v. Banks, 508.

v. Carey, 554.

—— v. Free, 584.

v. Gardiner, 59.

v. London and North-Western
Ry. Co. 608, 604.

—— v. Nixon, 212, 284.

—— v. Reid, 396.

v. Smith, 385.

Belshaw v. Bush, 470, 176, 488, 499,
506.

Belworth v.. Hassell, 440.

Bendix v. Wakeman, 241, 680, 632.

Bennett v. Daniel, 91.

Bennett College v. Carey, 448.

Bensley v. Bignold, 394.

Bentall v. Burn, 159.

Bentley v. Mackay, 175.

Berkeley v. Elderkin, 91.

v. Hardy, 223, 265, 285, 290, 298.

Berrington v. Phillips, 587.

Berry v. Da Costa, 566.

Berwick ». Horsfall, 123, 270.

Berwick (Mayor of) v. Oswald, 419.

Beswick v. Swindells, 84, 367.

Betterbee v. Davis, 458.

Betts v. Burch, 575, 576, 577, 579,
583.

-— v. Kimpton, 633.

Bevans v. Rees, 457, 458.

Beverley v. Lincoln Gas Co., 37, 250,
252, 254, 256.

Bevins v. Hulme, 489.

Bianchi v. Nash, 37.

Bickerton v. Burrell, 306.

Bickford v. Parson, 617, 630.

Biddle v. Levy, 29.

Bidgood v. Way, 240, 242.

Bidwell v. Catton, 328.

Biggs v. Lawrence, 401.

v. Wisking, 140, 160.

Bigland v. Skelton, 367.

Bienold v. Waterhouse, 279.

Bilbie v. Lumley, 56, 60.

Bill v. Bament, 143, 153, 156, 159.

v. Darenth Valley Co., 263.

Binnington v. Wallis, 399.

Birch v. Depeyster, 112, 549.

v. Earl of Liverpool, 137.

—— v. Stephenson, 582.

Bird v. Boulter, 151.

-—— v. Brown, 268.

v. Gammon, 128, 534.

v. Peagrum, 634.

—— v. Randall, 214, 577, 580.

 

 

 

 

 

 

 

 

 

 
XXVl

Birkenhead Ry. Co, v. Pilcher, 228.

Birkmyr v. Darnell, 126.

Birks v. Trippet, 337.

Bishop v. Church, 551.

v. Rowe, 480.

Bissill v. Williamson, 513.

Bittleston v. Timmis, 552, 555.

Bize v. Dickason, 58.

Blachford v. Preston, 381.

Blackburn v. Smith, 63, 194.

Blackett v. Royal Exchange Assur-
ance Co., 114.

Blackie v. Pidding, 434.

Blackstone v. Wilson, 404.

Blades v. Free, 22, 243, 288, 307.

Blair v. Bromley, 529.

v. Ormond, 482, 527, 539, 543.

Blake’s case, 89, 418, 466, 467, 473.

Blakesley v. Smallwood, 552.

Blanckenhagen v. Blundell, 612.

Bleaden v. Charles, 45, 599.

Bleakley v. Smith, 148.

Blenkiusop v. Clayton, 158, 161.

Bloxam v. Morley, 648.

v. Sanders, 648.

Blyth v. Lafone, 518.

v. Smith, 598.

Boaler v. Mayor, 508.

Bodenham v. Purchas, 493.

Bodger v. Arch, 539.

Bog Lead Mining Co. v. Montague, 13.

Bohn v. Burness, 199.

Boileau v. Rutlin, 512.

Bold v. Hutchinson, 130.

v. Rayner, 16, 118, 276.

Bolland v. Nash, 555.

Bolton v. Bp. of Carlisle, 430.

v. Hillersden, 268, 288, 284.

—— v. Lancashire and Yorkshire Ry.
Co., 163.

Bonafous v. Rybot, 581.

Bond v. Gibson, 279.

v. Simmonds, 632.

Bone v. Eckless, 65.

Boone v. Eyre, 348, 350.

Boorman v. Nash, 562, 565, 589, 647.

Boraston v. Green, 115.

Borell v. Dunn, 332.

Borradaile v. Brunton, 569.

Borries v. Hutchinson, 572, 591.

Borrowman v. Rossel, 180.

Bosanquet v, Wray, 495.

Bostock v. Jardine, 61.

Bottomley v. Brooke, 553, 607.

v. Fisher, 293, 298.

Boulton v. Jones, 16, 23, 28, 306.

v. Dobree, 395.

». Prentice, 244.

Bourne v. Mason, 222.

v, Seymour, 118, 437.

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CASES.

Bousfield v. Barnes, 582.

v. Wilson, 66, 406.

Boussmaker, Lx p., 397.

Bowdell v. Parsons, 352, 461.

Bowen v. Morris, 292.

v. Owen, 459.

Bower v. Cooper, 440.

Bowerbank v. Monteiro, 105.

Bowes v. Croll, 344,

— v. Foster, 484.

Bowker v. Burdekin, 78.

Bowlby »v. Bell, 138.

Bowles v. Orr, 75.

v. Round, 440.

Bowman v. Nichol, 431.

Bowry v. Bennet, 400, 401.

Box v. Day, 398.

Boyd v. Hind, 110, 319, 468.

v, Lett, 347.

v. Moyle, 314.

v. Robins, 334, 561.

wv. Siffkin, 341:

Boydell v. Drummond, 101, 135, 143,
542.

Boyman v. Gutch, 439.

Boys v. Ancell, 579, 583.

v. Ayerst, 150.

Boyson v. Coles, 197.

Boyter v. Dodsworth, 50.

Bracegirdle v. Heald, 135, 136.

Bradburne v. Botfield, 217, 220.

v. Bradburne, 322.

Bradbury v. Emans, 340.

v. Morgan, 644.

Bradley v. Bardsley, 431.

v. Holdsworth, 182.

Bradshaw v. Bennett, 586, 595.

—— v. Bradshaw, 45, 403, 405.

Brady v. Oastler, 565, 567, 591.

v. Todd, 274, 284.

Bramley v. Chesterton, 573.

Bramwell v. Eglington, 481.

Brandao v. Barnett, 611.

Brandon r. Nesbitt, 395, 396, 397.

v, Newington, 458.

v. Seott, 486, 187,

Brandt v. Heatig, 636.

Branscombe v. Scarbrough, 83, 577
580, 586.

Brashford v. Buckingham, 240.

Brassington v. Ault, 636.

Braunstein v, Accidental Death Ins,
Co., 336, 519, 520.

Brayshaw v. Eaton, 233.

Brecknock Navigation v. Pritchard
363.

Breckon v. Smith, 69.

Bret v. J. 8., 312.

Brettel v. Williams, 142, 277, 279,

Brewer v. Dew, 646.

 

 

 

 

 

 

 

 

 

 

 

 

 

 
TABLE OF

Brewer v. Sparrow, 48.

Brewster v. Kitchin, 411.

Briddon v. Great Northern Ry. Co.,
358.

Bridge v. Cage, 320.

Bridges v. Berry, 479.

—— v. Fisher, 402, 405.

v, Potts, 421.

Briggs, Lx p., 194.

v. Calverly, 465.

Brighty vr. Nor.on, 444.

Brill v. Crick, 105.

Brind v. Hampshire, 610.

Bringloe v. Goodson, 626.

Brisbane v. Dacres, 56, 60.

Bristow v. Eastman, 226.

v. Towers, 395.

— v. Wood, 616.

British Empire Ass. Co. v. Browne, 80.

British Empire Shipping Co. v Somes,
39.

Brittain v. Lloyd, 25, 41.

Britten v. Hughes, 404.

Brockwell’s case, 192.

Brodie v. St. Paul, 101.

Brogden v. Marriott, 337.

Bromage v. Lloyd, 642.

Brook v. Rounthwaite, 183.

Brooke v. White, 333.

Brooker v. Scott, 233.

Brooks v. Bockett, 72.

v. Mitchell, 455.

v. Stuart, 499, 501.

Broom v. Hall, 598, 599.

Broughton v. Manchester Waterworks
Co., 252, 235.

Brown v. Ackroyd, 246.

». Andrew, 212, 285.

v. Byers, 278.

v. Byrne, 110, 111, 1138, 117.

v. De Winton, 210.

v

v

v

 

 

 

 

 

 

. Duncan, 376.

. Harraden, 311, 441, 612.
. Hodgson, 46, 296.

—- v. Howard, 528.

v. Langley, 105.

v. Mayor of London, 367.

v. Overbury, 62, 520.

v. Price, 568.

v. Royal Ins. Co., 355, 362, 364,
5

 

v, Shuker, 638.

v. Tibbits, 548, 550.

». Wotton, 509.

Browne v. Hare, 8.

v. Joddrell, 247.

v. Savage, 604.

Browning v. Morris, 66, 408, 409.
v. Stallard, 126.

Bruce v. Jones, 582.

 

 

 

 

 

 

CASES. XXV11

Bruce v. Hunter, 587.

v. Nicolopulo, 445.

Brutton v. Burton, 89.

Bryan v. Child, 91.

Bryant v. Flight, 9, 335.

Brydges v. Lewis, 617.

v. Walford, 58.

Buchanan v. Findlay, 62.

v. Rucker, 75.

Buck v. Hurst, 69, 71.

v. Lee, 604.

Buckland v. Johnson, 509.

—— v. Papillon, 602, 620.

Buckle v. Mitchell, 313.

Buckley, Lx p., 218, 282.

Buckmaster v. Russell, 535.

Bufe v. Turner, 202.

Bullen v. Sharp, 277.

Buller v. Plunkett, 604.

Bullock v. Dommitt, 368.

Bunn v. Guy, 328, 3yl.

Burch v. Leake, 234.

Burchfield v. Moore, 61, 425, 426, 428,
429.

Burges v. Wickham, 103, 119, 120.

Burgh v. Legge, 69.

v. Preston, 504.

Burghart v. Angerstein, 233.

v. Hall, 233.

Burke v. Jones, 530.

Bwleigh v. Stott, 544.

Burmester v. Hogarth, 70.

v. Norris, 278.

Burn v. Boulton, 540.

v. Carvalho, 603.

v. Miller, 33.

Burnard v. Haggis, 226.

Burnell v. Brown, 440.

Burrell v. Jones, 293.

Burrett v. Booty, 245.

Burrough v. Moss, 240, 551.

Burroughs v. Lock, 188.

Burton v. Barclay, 626.

Bushel v. Wheeler, 156.

Bushell v. Beavan, 128, 568.

Busk v. Walsh, 66, 407.

Butcher v. Steuart, 121, 128, 329.

Butler and Baker’s case, 81.

Buttemere v. Hayes, 131, 161.

Buxton v. Bedal, 137.

Byrom v. Thomson, 431.

 

 

 

 

 

 

 

 

 

Cadaval, Duke de, v. Collins, 55.
Caddick v. Skidmore, 132.

Cage v. Acton, 83, 631.

Cahill v Dawson, 286.

Caine v. Coulton, 455, 457, 476, 482.
Caines v. Smith, 352, 461.

Calder v. Rutherford, 215.

Call v. Dunning, 107.
.

Xxvill

Callaghan v. Callaghan, 331.

Calland v, Loyd, 50.

Callander v. Howard, 72, 475.

Callonel v. Briggs, 34:7.

Callow v. Lawrence, 488.

Callowel v. Clutterbuck, 557.

Callum v. Leeson, 588.

Calton v. Bragg, 584.

Calverley v. Williams, 175.

Calvert v. Baker, 69, 426.

Cameron v. Smith, 585, 587, 588.

Camidge v. Allenby, 479.

Campanari v. Woodburn, 22, 289,
365, 643.

Campbell v. Christie, 426.

v. Fleming, 49, 193.

-— v. Hicks, 300.

v. Jones, 346, 348.

gee aa 615, 617, 620, 622.

Can v. Read, 486. ,

Canham v. Barry, 103, 189, 369.

v, Kust, 629, 636.

Cannam v. Farmer, 236.

Cannan v. Bryce, 402.

-—— v. Wood, 482.

Cannock v. Jones, 343.

Capner v. Mincher, 105.

Capper v. Dando, 338.

Card v. Hope, 382.

Cardwell v. Lucas, $5.

Cariss v. Tattersall, 431, 433.

Carlos v. Fancourt, 335.

Carnes v. Nisbett, 390, 578.

Carpenter v. Buller, 88.

v. Marnell, 606, 649.

v, Thornton, 73, 91.

Carr v. Hinehliff, 303.

v. Jackson, 305.

Carrington v. Roots, 134, 185, 162.

Carrol v. Blencow, 236.

Carter v. Boehm, 184, 199.

v, Carter, 44.

— v. Crick, 438.

—— v. Dean of Ely, 257.

—— v. James, 512.

—v

v

 

 

 

 

 

 

 

 

. Ring, 338.
. Toussaint, 156, 159.
v. Whalley, 280.
. Barber, 467, 468.
Castelli v. Boddington, 548, 606, 650.
Castle v. Sworder, 158.
Caswell v, Coare, 593.
Catesby’s case, 446, 447.
Caton v. Caton, 130, 167.
Cattell v. Corrall, 439.
Catterall v. liindle, 277, 490, 491.
Cattley v. Arnold, 623.
Catton v. Simpson,426.
Caudell v. Shaw, 236.
Cavendish v. Geaves, 553.

 

 

TABLE OF CASES.

Cawthorn v. Cordrey, 135.

Cazenove v. British Equitable Ass.
Co., 201.

Chamberlain v. Williamson, 365, 642,
644.

Chambers v. Manchester and Milford
Ry. Co., 258, 259.

v. Miller, 59, 471.

Champion v. Plummer, 144.

v. Short, 33.

—— v. Terry, 480.

Chandelor v. Lopus, 10.

Chandler v. Vilett, 521, 524.

Chanter v. Hopkins, 170, 199.

v. Leese, 216, 222,

Chaplin v. Clarke, 15.

—- v. Rogers, 158.

Chapman v. Beecham, 446.

v. Callis, 101.

—— v. Gwyther, 445.

— v. Hicks, 453.

—— v. Milvain, 225.

v. Speller, 60.

Chappel v. Comfort, 613.

Chapple v. Cooper, 233.

v. Durston, 550.

Charnley v. Grundy, 434.

v. Winstanley, 461.

Charrington v. Laing, 580.

Chater v. Becket, 164.

Checchi v. Powell, 634.

Cheetham v. Ward, 470, 500.

Cherry v. Heming, 77, 187.

Chesman v. Nainby, 391, 411.

Chesterfield (Earl of) v. Bolton, 363.

Chesterfield Silkstone Colliery Co.,
Hawkins, 223, 22+.

Chesterman v. Lamb, 593.

Child v. Hardyman, 244.

Childs v. Monins, 126, 641.

Chilliner v. Chilliner, $4, 577, 580.

Chinery v. Viall, 590.

Chippendale v. Thurston, 355.

v. Tomlinson, 651.

Chisman v. Count, 69.

Chowner v. Baylis, £9.

Christie v. Borelly, 349.

Church 7. Imperial Gas Co., 250, 252,
254, 257.

Churcher v. Stringer, 587.

Clapham v. Langton, 120.

——- v. Shillito, 190.

Clarance v. Marshall, 49, 61,

Clare rv. Maynard, 593.

Clark v, Alexander, 70, 475, 476, 539.

v. Bulmer, 37.

—— v. Grant, 17-4.

—— v. Hooper, 541.

— v. Hougham, 529, 533.

—- v. Malpas, 332.

 

 

 

 

 

 

 

 

 
TABLE OF CASES.

Clark v. Piggott, 427,

Clarke v. Cuckfield Union, 254, 257.
v. Dickson, 194, 195.

—— v. Fell, 547, 549.

— v. Powell, 275.

 

v. Roystone, 115, 116.

v. Watson, 337.

v. Westrope, 32, 336.

Clarkson v. Edge, 578.

Clay v. Southern, 292.

v. Yates, 33, 139.

Clayton’s case, 445, 493, 496, 497.

Clayton v. Ashdown, 231.

v. Gosling, 558.

v. Gregson, 117.

». Kynaston, 500.

Cleave v. Jones, 537.

Clement v. Gunhouse, 77.

Clements v. Welles, 616, 617.

Clementson v. Blessig, 395, 397.

Clerke ». Martin, 311, 612.

Clifford v. Parker, 431, 433.

Clinan v. Cooke, 145.

Close v. Phipps, 53.

Clowes v. Higginson, 103, 179.

Clutterbuck v. Coffin, 321.

Coates v. Coates, 530.

zt, Lewes, 490.

—— v. Wilson, 233.

Coates v. Chaplin, 163.

Cobb v. Becke, 285.

Cobbold v. Caston, 139.

Cobham v. Holcombe, 225.

Cochran v. Retberg, 18, 446.

Cochrane v. Green, 304, 468, 483,
553, 607, 608, 611.

v. Willis, 177, 327.

Cock v. Richards, 398.

Cockburn, Lx p., 224.

v. Alexander, 113, 566.

Cockell v. Gray, 446.

v. Taylor, 332.

Cockerell v. Aucompte, 118, 437.

v. Van Diemen’s Land Co., 590.

Cocking v. Ward, 72, 131, 165, 166,
167.

Cockran v. Irlam, 286.

Cockrill v. Sparkes, 535, 544.

Cocks v. Masterman, 60.

—— v. Nash, 499, 501.

Cockshott v. Bennett, 403.

Cockson v. Cock, 621.

Coffin v. Cooper, 448.

Coges v. Bernard, 358.

Cohen v. Armstrong, 229.

Colburn v. Patmore, 44, 383.

Cole v. Blake, 459.

v. Parkin, 430, 431.

—— v. Saxby, 231.

Coleman v. Waller, 403.

 

 

 

 

 

 

 

 

 

 

 

 

Xx1x

Coles v. Hulme, 173, 179, 358.

—— v. Sims, 577, 578, 616.

». Trecothick, 149, 332.

—— v. Turner, 336.

Collard v. South-Eastern Ry. Co., 571.

Collen v. Wright, 307, 599.

Collingbourne v. Mantell, 469.

Collins v. Blantern, 86, 383, 405.

v. Collins, 545.

v. Godefroy, 320.

v. Jones, 555.

—- v. Matthew, 74.

v. Prosser, 218, 429.

Collinson v. Pattrick, 330, 332.

Collyer v. Willock, 539.

Colman v. Sarrel, 331.

Colson v. Carr, 322.

v. Welch, 549.

Colyear v. Countess Mulgrave, 332.

Compton v. Collinson, 239.

Conan v. Kemise, 628.

Congham v. King, 628.

Congleton (Mayor of) v. Pattison, 621.

Connor v. Martin, 240.

Conway v. Gray, 396.

Cooch v. Goodman, 77, 85, 224.

— v. Maltby, 452, 453.

Cook v. Field, 385.

—— v. Jennings, 35, 370.

v. Hopewell, 472.

— ». Lister, 418, 488, 499.

v. Wright, 330.

Cooke v. Clayworth, 249.

v. Oxley, 21.

v. Seeley, 301.

— v. Wilson, 289, 291.

Coombe’s case, 285, 290.

Coombe, Fr p., 132.

v. Greene, 343.

Coombs v, Dibble, 378.

Coombs, Re, 57.

Coombs v. Bristol and Exeter Ry.
Co., 155, 163, 164.

Coope v. Cresswell, 334, 543.

Cooper v. Asprey, 56.

v. Elston, 138, 160.

— v. Jarman, 641.

— v. Law, 486.

— v. Lloyd, 243, 245.

—— v. Parker, 475.

—— v. Shuttleworth, 518.

—— v. Smith, 145.

Cope v. Rowlands, 376, 394.

——— v. Thames Haven Dock Co.,
251, 252, 256.

Copper Miners’ Co. v. Fox, 254, 257.

Coppin v. , 632, 633.

—— v. Craig, 305.

v. Walker, 305.

Coppock v. Bower, 384.

 

 

 

 

 

 

 

 

 

 

 

 

 

 
XXX

Corbet Davies, Jn re, 508.

Corbett v. Poelnitz, 239.

Cordwell v. Martin, 431.

Cordwent v. Hunt, 418.

Cork v. Baker, 130.

Cork & Bandon Ry. Co. v. Cazenove,
228, 230, 231.

-— v. Goode, 75, 96, 522.

Corner v. Sweet, 506.

Cornfoot v. Fowke, 184, 187, 193.

Cornforth v. Rivett, 549.

v. Smithard, 536.

Cornish v. Abington, 8.

Cornu v. Blackburne, 396.

Cornwallis v. Savery, 577.

Corpe v. Overton, 228.

Cort v. Ambergate Ry. Co., 351, 352,
465.

Cory v. Cory, 250.

Cotes v, Davis, 240.

Cothay v. Fennell, 301.

Cottam v. Partridge, 476, 521, 539.

Cotterel v. Hooke, 558.

Cotton v. Godwin, 452, 455.

v. Thurland, 65.

Courtenay v. William, 530.

Cousins v. Nantes, 377, 379.

Couturier v. Hastie, 127, 176, 360.

Coward, In goods of, 236.

Cowell v. Edwards, 43.

Cowie v. Halsall, 426.

v. Stirling, 211.

Cowper v. Smith, 501.

Cox v. Hickman, 277, 278.

v. Liotard, 559.

v. Middleton, 191, 205, 440.

v. Midland Ry. Co., 268.

v. Mitchell, 513.

v. Prentice, 57.

—— v. Troy, 8.

v. Walker, 593.

Crampton v. Walker, 548, 549, 550.

Cranley v, Hillary, 337, 449, 450.

Crawford v. Stirling, 548.

Creswick v. Woodhead, 636.

Cripps v. Hartnoll, 129.

Crisp v. Gamel, 323.

Croft v. Lumley, 8, 491.

Crofton v. Poole, 651.

Crook v. Stephen, 502.

Crooke v. M‘Tavish, 446.

Crookewit v. Fletcher, 342.

Crookshank v. Rose, 406, 410, 496.

Cropp v. Hambleton, 449.

Crosbie v. Tooke, 602.

Crosby v. Wadsworth, 134, 135, 162.

Cross v. Cheshire, 41, 45.

v. Eglin, 118, 437.

v. Williams, 214.

Crotty v. Hodges, 426.

 

 

 

 

 

 

 

 

 

 

 

TABLE OF

 

CASES.

Crouch v. Fastolfe, 449.

Crow v. Falk, 445.

v. Rogers, 221, 313.

Crowe ». Clay, 434, 480.

Crowfoot v. Gurney, 604.

Crowther v. Farrer, 319, 320, 326,
469, 475.

Croydon Hospital v. Farley, 251.

Cuff v. Penn, 416.

Cumber v. Wane, 468, 47+.

Cumberlege v. Lawson, 170.

Cumming v. Bedborough, 45.

v. Ince, 209.

Cundell v. Dawson, 393.

Cundy v. Marriott, 479.

Cunliffe v. Harrison, 437.

Curlewis v. Clark, 468.

Curling v. Shuttleworth, 439.

Currie v. Anderson, 154, 155.

Curtis v. Hannay, 593.

—— v. Pugh, 154, 155.

— v». Rickards, 70.

v, Spitty, 628.

Cusack v. Robinson, 155.

Cuthbertson v. Irving, 623, 624.

Cutler v. Southern, 310.

Cutter v. Powell, 35.

Cuxon v. Chadley, 468, 608, 611.

 

 

 

Da Costa v. Davis, 371.

v. Jones, 377.

Dails v. Lloyd, 57, 71.

Dalby v. India Life Ags.
379, 381.

Dallman v. King, 335.

Dalton v. Gib, 233.

v, Midland Counties Ry. Co., 242.

v. Whittem, 123.

Dalzcll v. Mair, 484.

Dane v, Kirkwall, 247.

Dangerfield v. Thomas, 606, 649.

Danube und Black Sea Ry. Co. v.
Xenos, 462, 163, 464, 165.

Darbishire v. Parker, 341.

Darlington Joint Stock Banking Co.,
Ex p., 283.

v. Hamilton, 439.

D’Arnay v. Chesneau, 606, 649, 650.

Darnley (Earl) x. London, Chatham, &
Dover Ry. Co., 448.

Daubuz v. Morshead, 396.

David v. Ellice, 611.

Davidson v, Cooper, 424, 425, 426.

v. Stanley, 266.

v. Wood, 244, 245, 267.

Davies v. Cooper, 332.

v. Edwards, 538.

—— v. Humphreys, 43.

v. Penton, 575, 577,

583.

 

Cneerer

 

 

 

 

 

 

 

579, 580,
TABLE OF CASES.

Davis v. Cary, 367.
v. Dodd, 319.
— v. Gyde, 481.
— v. Jones, 109.
— v. Mason, 390.

 

v. Reyner, 126, 324, 326.

v. Shepherd, 177.

v, Smyth, 585, 589.

v. Symonds, 103.

Dawes v. Peck, 296.

Dawson v. Collis, 199, 421, 594.

v. Linton, 45.

—— v. Prince, 240.

—— v. Wrench, 339, 340.

Day v. Carr, 56.

v. Hemming, 394.

—— v. Padrone, 633.

—— v. Pargrave, 240.

Dean v. James, 457, 604.

v. Newhall, 504.

Dearle v. Hall, 604.

De Begnis v. Armistead, 402.

De Bernales v. Fuller, 584.

v. Wood, 586, 595.

De Bernardy v. Harding, 32.

De Biel v. Thompson, 131, 167.

De Cosse Brissac v. Rathbone, 75.

Deeks v. Strutt, 73, 126.

De Havilland v. Bowerbank, 584.

De Hoghton v. Money, 331.

De Medina v. Grove, 55, 92.

Denby v. Moore, 45, 56, 60.

Dendy v. Powell, 547.

Dent v. Dunn, 587.

Denton v. Great Northern Ry. Co., 13.

v. Macneil, 183.

.v. Rodie, 282, 585, 587.

Deposit Life Ass. Co. v. Ayscough,
194,

v. De Mattos, 499, 503, 607.

Derby (Earl of) v. Taylor, 625, 628.

Derby Canal Co. v. Wilmot, 250.

Derisley v. Custance, 625.

Derry v. Duchess Mazarine, 236.

Deslandes v. Gregory, 291.

Devaux v. Conolly, 60, 63.

Dew v. Parsons, 57.

De Wahl v. Braune, 236.

Dick v. Tolhausen, 92.

Dicker v. Jackson, 346.

Dickinson v. Angell, 92.

v. Burrell, 386.

v. Hatfield, 534.

— ». Lilwall, 272.

v. Valpy, 278, 280.

Dickson v. Cass, 555.

v. Evans, 555.

Digby v. Atkinson, 363.

Diggle ». London and Blackwall Ry.
Co., 252, 254.

 

 

 

 

 

 

 

 

 

 

 

 

 

XXxi

Dillon v. Coppin, 331.

Dimech v. Corlett, 342.

Dingle v. Hare, 272, 594.

Dingwall v. Dunster, 418.

Dixon ». Clark, 452, 453, 454, 458.

—— v. Fletcher, 437.

—— v. Nuttall, 528.

—— v. Parkes, 454, 472, 586 587.

Dobell v. Hutchinson, 101, 141, 142,
448.

v. Stevens, 191.

Dobie v. Larkan, 441, 454.

Dobson v. Collis, 187.

v. Espie, 414.

Dodsley v. Varley, 156.

Doe v, Allen, 122.

v. Bancks, 423.

v. Benson, 105.

v. Birch, 424.

— v. Burt, 122.

—— v. Dobell, 421.

v. Durnford, 107.

v. Hiscocks, 119, 122.

v. Hopkinson, 105.

—— v. Knight, 78, 80, 81.

—— v. Lea, 105.

v. Oliver, 88.

—— v. Ongley, 623.

-—— v. Pitcher, 410.

—— v. Reid, 621.

v, Rouse, 122.

v. Rugeley, 367.

v. Shaweross, 449.

— v. Smith, 421, 620.

v. Smyth, 81.

v. Stanion, 439.

v. Taniere, 256.

v. Westlake, 122.

Doggett v. Catterms, 379.

Dolman v. Nokes, 186.

Done v. Walley, 43,

Donellan v. Read, 131, 136, 137.

Doogood v. Rose, 346, 34:7.

Doughty v. Bowman, 619.

v. Neal, 370.

Douglas v. Forrest, 74.

—— v. Patrick, 459.

Dowell v. Dew, 602.

Dowling v. Ford, 539.

Down v. Halling, 52.

v. Hatcher, 319, 468, 474.

Downes v. Richardson, 432.

Downman v. Williams, 293.

Drain v. Harvey, 180.

Drake v. Beckham, 646.

v. Mitchell, 481, 506, 508.

Drayton v. Dale, 651.

Dresser v. Norwood, 303.

Drew’s Estate, In re, 616.

Drewe v. Corp, 440.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
XXX1l

Drinkwater v. Goodwin, 274, 304,
305, 489.

Driver v. Burton, 43.

Drummond »v, Duke of Bolton, 372,
373.

Drysdale v. Mace, 191.

Dublin and Wicklow Ry. Co. v. Black,
230, 231.

Duckworth v. Alison, 573.

Duddell v. Simpson, 423.

Duignan v. Walker, 392.

Duke v. Andrews, 15.

v. Barnet, 439.

Dumpor’s case, 620.

Duncan v. Benson, 42.

v. Lowndes, 279.

v. Skipwith, 62.

v. Topham, 19, 20, 444.

Dunlop v. Higgins, 17, 18, 19, 20.

Dunmore v. Alexander, 20.

Dunn v. Murray, 516.

Dunnage v. White, 250.

Dunston v. Imperial Gas Co., 256.

Duranty’s case, 192.

Durham (Earl) v. Legard, 177.

Durrell v. Evans, 141, 148, 151.

Dutton v. Poole, 222.

— v. Solomonson, 296, 333.

Duvergier v. Fellows, 359.

Dyer v. Best, 523.

v. Bowley, 44.

v. Hargrave, 191.

v. Pearson, 266.

Dykes v. Blake, 440.

 

 

 

 

 

 

 

Earle v. Hopwood, 386.

v. Oliver, 318.

Early v. Garrett, 187.

East Anglian Ry. Co. v. Eastern
Counties Ry. Co., 259.

East India Co., Kx p., 557.

East London Waterworks Co. v.
Bailey, 252, 254, 257.

Easterby v. Sampson, 619.

Eastern Counties Ry Co. v. Hawkes,
259.

Eastmure v. Laws, 512.

Eastwood v. Kenyon, 129, 161, 314,
316.

v. Lever, 616.

Eaton v. Bell, 587.

v. Jaques, 625.

Eccleston v. Clipsham, 215, 219.

Eckstein v. Reynolds, 458.

Edan v. Dudfield, 153, 156.

Eden v. Blake, 102.

Edgecombe v. Rodd, 383.

Edge v. Strafford, 132.

Edger v. Knapp, 43.

Edie v. East India Co., 252, 611.

 

 

 

 

TABLE OF CASES.

Edmeads yv. Newman, 49.

Edmunds v. Bushell, 273.

v. Groves, 378, 379.

Edwards v. Baugh, 328,

v. Grand Junction Ry. Co., 264.
v. Great Western Ry. Co., 588.
v. Jones, 331, 603.

v. Kelly, 128.

v. Lowndes, 73.
v. M‘Leay, 185.
v. Martin, 604.
v. Martyn, 632.
v
v
v

 

 

 

 

tt

 

|

. Scarsbrook, 51.

. Scott, 604, 650.

. Towels, 245,
v. Vere, 584.
Egerton v. Mathews, 150.
Egremont (Earl of ) v. Keene, 623.
Ehrensperger v. Anderson, 62, 67.
Eichholz v. Bannister, 60, 198.
Eland »v, Karr, 549.
Elkin v. Baker, 607.
Ellard v. Landaff, 185.
Ellen v. Topp, 348, 350, 420.
Elliott v. Clayton, 651.
—— v. Ince, 248, 249.
—— v. Thomas, 159, 160, 161.
Ellis v. Hamlen, 29,
v. Thompson, 121.
Ellison v. Ellison, 331.
v. Elwin, 635.
Elmore v. Kingscote, 144, 147.
v. Stone, 157.
Elves v. Crofts, 389, 390, 391.
Elworthy v. Bird, 383.
Emblen v. Myers, 566.
Emly v. Lye, 280, 282, 298.
Emmerson’s case, 177.
Emmerson v. Heelis, 133, 140, 150

151, 266.

Emmet v. Dewhirst, 416.
England v. Davidson, 320.
Ernest v, Nicholls, 260, 262.
Errington ». Aynesly, 363.
Esposito v7. Bowden, 397.
Etherington v. Parrot, 244,
Evans v. Collins, 187.
—v. Edmonds, 188.
v. Evans, 291.
v. Jones, 377.
—— v. Judkins, 459.
v. Powis, 467, 468, 475.
—— v. Prosser, 54:7.
—— v. Roberts, 133, 134, 138.
v. Tweedy, 530.
v. Williams, 95.
Everett v. Collins, 477, 478.
v. Desborough, 202.

—— v. Robinson, 533.
—— v. Robertson, 535.

 

 

 

 

 

>

 

 

 

 

 

 
TABLE OF CASES.

Evelyn v. Chichester, 227, 231.
Ewart v.Cochrane, 122.

FExall v. Partridge, 42, 44, 46, 47.
Eyles v. Ellis, 483.

Eyton v. Littledale, 547.

Fagg v. Dobie, 629.

Fair v. M‘Iver, 555.

Fairlie v. Christie, 426.

v. Denton, 601, 608, 609.

Fairman v. Oakford, 443.

Faith v. Richmond, 280, 281.

Faithorne v. Blaquire, 237.

Falkner v. Earle, 113.

Fallowes v. Taylor, 84, 385.

Falmouth (Earl) v. Roberts, 428, 433.

(Earl) v. Thomas, 73, 184, 167.

Fdnnin v. Anderson, 510, 526.

Farebrother v. Simmonds, 152.

Farina v. Horne, 159.

Farmer v. Robinson. 153.

v. Russell, 66, 406.

Farnsworth v. Garrard, 29.

Farquhar v. Farley, 586, 595.

v. Morris, 586.

Farr v. Ward, 585, 589.

Farrant v. Olmius, 582.

Farrar v. Deflinne, 279.

v. Hutchinson, 483.

Faulkner v. Lowe, 211, 335.

Favenc v. Bennett, 490, 497.

Faviell v. Eastern Counties Ry. Co.,
255.

Fawcett v. Cash, 443.

Fawkes v. Lamb, 103, 112, 292.

Fearn v. Cochrane, 476.

Featherstone v. Hutchinson, 409.

Featherstonhaugh v. Lee Moor Porce-
lain Clay Co., 260.

Feize v. Thompson, 569.

Felthouse v. Bindley, 14, 163.

Fenn v. Harrison, 271, 274, 284.

Fenton v. Emblers, 136.

v. Holloway, 249.

Feret v. Hill, 182, 195.

Ferguson v, Carrington, 30.

v. Clayworth 632.

v. Mahon, 75.

Fergusson v. Norman, 393.

Ferrand v. Bischofishein, 303.

Fesenmayer v. Adcock, 70.

Fessard v. Mugnier, 450, 451.

Field v. Allen, 551.

— v. Carr, 493.

—— v. Lelean, 110, 113.

v. Robins, 487.

Fife v. Clayton, 175.

Filmer v. Burnby, 98.

Finch v. Brook, 456.

—— v. Miller, 459.

 

 

 

 

 

 

 

 

 

 

XXXiil

Findon v. Parker, 385, 386.
Finlay v. Bristol and Exeter Ry.
Co., 256.

Firbank v. Bell, 610.

Fish v. Kempton, 3038, 304, 489.

Fisher v. Hall, 324.

v, Marsh, 291, 296.

v. Pyne, 24, 26.

—— v. Samuda, 512.

Fishmongers’ Co, v. Robertson, 257.

Fitch v. Jones, 378, 474.

Fitt v. Cassanet, 352, 414.

Fitzgerald v. Dressler, 127.

Fitzherbert v. Mather, 199.

Fitzmaurice v. Bayley, 145, 147, 152.

Flarty v. Odum, 381.

Fleming v. Fleming, 122.

Flemyng v. Hector, 278, 283.

Fletcher v. Ashburner, 641.

v. Dyche, 551, 573, 581.

v. Marshall, 62.

—~- v. Tayleur, 565, 592.

Flight v. Bolland, 231.

-—— v. Booth, 440.

v. Clarke, 401.

—— v. Glossopp, 616.

—— v. Leman, 385.

— ». Reed, 318.

Flindt v. Waters, 397.

Florence v. Jennings, 511.

Flureau v. Thornhill, 596.

Foley v. Addenbrooke, 219, 2

Forbes v. Marshall, 281.

v. Peacock, 486.

Ford v. Beech, 499, 504, 515.

—v. Earl of Chesterfield, 5Su.

v. Dornford, 550.

v. Noll, 459.

v. Tiley, 461.

v. Yates, 102, 104.

Fordley’s case, 355.

Fores v. Johnes, 400.

Forster v. Taylor, 376, 393.

v. Wilson, 555.

Forsyth v. Bristowe, 541, 543.

Fortescue v. Barnett, 331.

Forth v. Stanton, 125, 126, 605.

Forward v. Pittard, 358.

Foster v. Allanson, 72, 73.

v. Bates, 269.

—— v. Charles, 186, 187.

—— v. Colby, 614.

— v. Dawber, 418, 483, 499, 537,

612.

v. Green, 50.

v. Jolly, 105.

—— »v. Ley, 41.

—— v. Stewart, 30.

—— v. Weston, 585, 586.

Fowkes v. Manchester Lifo Ass., 201.
e

 

 

 

 

 

20, 628,

 

 

|

 

 

 

 

 
XXxiv

Fowle v. Freeman, 98.

Fowler v. Scottish Life Ass. Co., 175.
Fox v. Clifton, 277.

v. Mackreth, 186.

v. Nott, 614.

— »v. Scard, 578.

Foxwist v. Tremame, 636.

Foy v. Bell, 484.

France v. White, 234, 235, 550, 631.
Francis v. Hawkesley, 535.

v. Wigzell, 238.

Franklin v. Miller, 348.
Franklyn v, Lamond, 140, 296.
Franks, Ex p., 236.

Fraser v. Pendlebury, 54.
Frayes v. Worms, 514.

Frazer v. Hatton, 321.

Freake v. Cranefeldt, 526, 530.
Free v. Hawkins, 105.
Freeman v. Baker, 17. *
v. Cooke, 8.

v. Taylor, 342.

Freme v. Wright, 439.

French v. Andrade, 551.

v. French, 71.

v. Macale, 574, 577, 582.
v. Patten, 414.

Frend v.\Dennett, 251.

Fricker v. Tomlinson, 143, 161.
Frontin v. Small, 285.

Froset v. Walshe, 79.

Frost v. Beavan, 248.

Frowd, Ex p.,192.

Fruhling v. Schroeder, 584.

 

 

 

 

 

 

 

 

Fry v. Chartered Bank of India, 613.

Fryer v. Roe, 69.

Fulham v. Down, 53.

Fuller v. Redman, 95.

v. Wilson, 193.

Furness v. Meek, 109, 110, 124.
Furtado v. Rodgers, 396, 398.
Fyson v. Chambers, 651.

 

Gabay v. Lloyd, 272.

Gabriel v. Dresser, 469.

Gage v. Aston, 83, 631.

Gainsford v. Carroll, 590.

Gale v. Reed, 389.

Galsworthy v. Strutt, 584.

Galton v. Hancock, 87.

Galway v. (Lord) Matthew, 218, 278,
279, 281, 282.

Gamba v. Le Mesurier, 396, 398.

Gantt v. Mackenzie, 585.

Garbutt v. Watson, 138, 139.

Gardner v. Baillie, 271.

v. M’Mahon, 533.

—— v. Walsh, 426.

Gardom v. Lee, 423.

Garforth v. Bradley, 634.

 

 

TABLE OF CASES.

Garforth v, Fearon, 382.

Garland v. Carlisle, 51.

Garrard v. Cottrell, 26, 43.

v. Frankel, 171, 176.

—— v. Giubelei, 631.

v. Grinling, 174.

Garrett v. Handley, 302.

Garton v. Bristol and Exeter Ry. Co.,
53, 57.

Gascoyne v. Edwards, 515.

Gaskell v. Gaskell, 332.

v. King, 410.

Gaslight Co. v. ‘Turner, 401.

Gaston v. Frankum, 238.

Gaters v. Madeley, 630, 632, 634.

Gatty v. Field, 65, 66, 407.

Gaussen v. Morton, 287.

Geary v. Physic, 76.

Gee v. Lancashire and Yorkshire Ry.
Co., 571, 573.

v. Pack, 492.

Geere v. Mare, 404, 405.

Gell v. Burgess, 472.

General Discount Co. v. Stokes, 334,
561.

General Steam Nay. Co. o. Guillou
93, 51+.

v. Slipper, 361.

George v. Claggett, 303.

Gibbins v. N. E. Metrop. As. District,
98, 99.

Gibbons v. Vouillon, 499, 500, £06.

Gibbs v. Gray, 118, 437.

v. Merrill, 316.

v. Southam, 338.

Gibson v. Bell, 554.

—— v. Carruthers, 602, 647, 648, 649.

v. Dickie, 400.

—— v. Holland, 142.

—— v. Overbury, 659.

—— v. Spwrier, 440.

—— v. Winter, 491, 503.

Gifford v, Whittaker, 470.

Gilbert v. Sykes, 136, 377.

Giles v. Edwards, 60.

v. Giles, 346.

Gilkes v. Leonino, 341.

Gillard vy. Brittan, 590.

Gingell v. Purkins, 67.

Gipps v. Hume, 399.

Girardy v. Richardson, 401.

Giraud v, Richmond, 135, 415, 416

Glaholm », Hays, 342.

Glaysher, Lx p., 516.

Glengall (Earl) ». Barnard, 152.

Glover v. Hackett, 145.

Glyn v. Baker, 52.

v. Thomas, 56.

Glynn v. Thorpe, 89.

Goate v. Goate, 535.

 

 

 

 

 

 

 

 

 

 
TABLE OF CASES,

Goddard's case, 78, 445.

v. Cox, 492, 493.

—— v. Hodges, 495.

v. Ingram, 544.

Godefroy v. Jay, 567.

Godfrey v. Saunders, 286.

Godsall v. Boldero, 381.

Godts v. Rose, 1138.

Goldshede v. Cottrell, 467, 477, 478.

— v. Swan, 121.

Goldstone v. Osborne, 519.

Gompertz v. Denton, 50, 63, 195, 198,
414, 421, 438, 593.

Good v. Cheesman, 319, 468.

v. Elliott, 377.

Goode v. Harrison, 231.

Goodall v. Lowndes, 65, 67.

Gooduy v. Colchester, 257.

Goodland v. Blewith, 459.

Goodman v. Chase, 128.

Goodtitle v. North, 563.

Goodwin v. Cremer, 472.

v. Noble, 625.

v. Culley, 533.

Goodyear v. Mayor of Weymouth,
337.

Goom v. Aflalo, 142, 151, 275, 276,

Gordon v. Ellis, 486, 550.

—— (Lord) v. Marquis of Hertford,
174.

v. Sea Fire Ass. Co., 263.

v. Strange, 482.

v. Swan, 584, 585.

Gore v. Gibson, 247, 249.

Gorman v. Salisbury, 417.

Gorrissen v. Perrin, 341.

Gorsuch v. Cree, 205.

Gorton v. Gregory, 625.

Gosbell v. Archer, 152, 595.

Goss v. Lord Nugent, 414, 415, 416.

Gough v. Findon, 71.

Gould v. Coombs, 426.

Gouldsworth v. Knights, 623.

Govier v. Hancock, 245.

Gowan v. Forster, 538.

Grady’s case, 264.

Graeme v. Wrougliton, 382.

Grafton v. Armitage, 139.

v. Eastern Counties Ry. Co. 336.

Graham v. Allsopp, 45, 552.

v. Dyster, 52, 275, 286.

v. Graham, 79.

v. Musson, 144, 151, 152.

v. Partridge, 546.

Granger v. George, 528.

Grant v. Fletcher, 15, 146, 275, 276.

v. Maddox, 115, 117, 358.

~— v. Royal Exchange Ass. Co.,
48.

Graves v. Key, 483, 488.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

XXXV

Graves v. Legge, 272, 341, 350.

Gray v. Briscoe, 440, 597.

Great Western Ry. Co. v. Redmayne,
571.

Greaves v. Ashlin, 104.

v, Wilson, 422.

Green v, Attenborough, 480.

v. Bicknell, 562.

—— v. Cresswell, 127, 129.

v. Davies, 69, 70.

v, Farmer, 545.

v. Gosden, 190.

v. James, 629.

v. Kopke, 296.

v. Mules, 35.

—— v. Price, 388, 391, 411, 584.

v. Saddington, 131, 165.

Greenleaf v. Barker, 323,

Greenshields v. Crawford, 119.

Greenslade v. Dower, 280.

Greenwood, Ex p., 263.

v. Bishop of London, 410.

Greet v. Webb, 561.

Gregory v. Hurrill, 529.

Gregson v. Ruck, 16, 146, 276.

Grenfell 7. Girdlestone, 533.

Greningham v. Ewer, 354, 355, 358,
372. '

Gresty v. Gibson, 224, 500.

Grey v. Ellison, 211.

v. Hesketh, 371.

Griffenhoofe v. Daubuz, 44.

Griffith v. Spratley, 382.

v. Young, 166.

Griffiths 7. Owen, 473, 569.

v. Perry, 476, 591.

Grimman v. Legge, 36.

Grindell v. Godmont, 246.

Grissell v. Robinson, 41, 42.

Groom v. Mealey, 552.

v. West, 549, 554.

Grove v. Dubois, 289, 292.

Gudgen v. Besset, 78.

Guerreiro v. Peile, 275.

Gulliver v. Cosens, 56.

Gully v. Bishop of Exeter, 313

Gumm v. Tyrie, 212.

Gunmakers’ Co. v. Fell, 387.

Gurney v. Womersley, 60.

Gurrin v. Kopera, 224.

Guthing v. Lynn, 323, 358.

Guthrie v. Armstrong, 212, 284.

Guyard v. Sutton, 242.

Gwyn v. Godby, 587.

Gwynne v, Davy, 420, 421.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Habberton v. Wakefield, 55.
Haddon v. Ayers, 219.
Hadley v. Baxendale, 569, 570, 571,
572, 573.
2
XXXVI

Hadley v. Clarke, 398.

v. Green, 511.

Haigh v, Brooks, 121, 312, 329.

v. North Bierley Union, 264.
Haldane v. Johnson, 449, 450.
Hale v. Rawson, 341.

Hales v. Freeman, 41.

 

 

 

Halford v. Kymer, 380.
Halhead v. Young, 173.
Hall v. Ashurst, 293.

v. Betty, 439.

v. Cazenove, 78, 79, 107, 359.
v. Flockton, 467.

v. Lund, 122.

v. Mayor of Swansea, 256.

v. Odber, 74.

v. Potter, 398.

v. Smith, 282.

v. Warren, 248.

v. Wright, 364.

Hallen v. Runder, 133, 138.
Halsey v. Grant, 440.

Hamber v. Roberts, 119.

Hambly ». ‘Trott, 48.

Hamelin v. Bruck, 431.

Hamersley v. De Biel, 130.

LETTE ETT

 

Hamilton v. Grainger, 249, 303, 401.

 

v. Spottiswoode, 603, 609, 610.
v. Watson, 203, 204.
Hamlet v. Richardson, 55.

 

Hamlin v. Great Northern Ry. Co.

566, 572.
Hammond v. Messenger, 603.
—— v. Toulmin, 562.
Hamper, Ex p., 277.
Hancock v. Caffyn, 44, 646.
v. Field, 498.
Hands v. Burton, 482.
v, Slaney, 233.
Hankey v. Smith, 554.
Hanks v. Palling, 439.
Hanmer v. White, 92.
Hansard v. Robinson, 434, 611.
Hauslip v. Padwick, 595, 56.
Hanson v. Armitage, 155.
v. Roberdeau, 296.
Harbert’s case, 86, 215.
Harcourt v. Wyman, 241.
Hardcastle v. Netherwood, 548.
Harding v. Ambler, 498.
Hardingham v. Allen, 458.
Hardman v. Bellhouse, 62, 466, 483.
v. Booth, 16, 197, 306.
Hardy v. Bern, 577.
Hare v. Llenty, 480.
v. Rickards, 586.
Hargreaves v. Mitchell, 530.
v. Parsons, 129.
Harley v. Greenwood, 513, 556.

 

 

 

 

 

 

v. London & N. W. Ry. Co., 443.

 

 

TABLE OF CASES.

Harley v. King, 629.
Harman v. Kingston, 397.

v. Reeve, 138, 165, 166.
Harmer v. Priestley, 452.
Harnor v. Groves, 68, 104.
Harper v. Williams, 293.
Harrhy v. Wall, 404.
Harrington v. Long, 385.
Harris v. Carter, 321.

v. Dreesman, 363.

v. Goodwyn, 498.
y. Huntbach, 127.
v. James, 556.

v. Lee, 246.
v.
Vv.
v.
v.

 

 

Reynolds, 517.
Rickett, 103, 108, 110.
Saunders, 74.
Wall, 230.
v. Watson, 321.
Harrison v. Cage, 130.
Cotgreave, 234.
v, Eivin, 149.
v. Fane, 233, 234.
v. Guest, 332.
v. Jackson, 266, 277, 280.
v. Wright, 574.
v. Alexander, 279, 468, 611.
v. Bush, 155.
v
v
v.
Vv.
Ue
v.

WEE TTI

 

 

-

 

||

 

Har

+

 

Mills, 33, 437.
Minors, 126.
Nash, 482, 538.
Prater, 233.
Prendergast, 532, 533, 534,
Sattley, 155.
v. Stephens, 541, 630, 633, 634.
Hartland v. Jukes, 455, 527.
Hartley v. Cummings, 389.
v. Herring, 565.
—— v. Pehall, 621.
—— v. Ponsonby, 321.
—— v. Rice, 377, 398.
v. Wharton, 230.
Harvey v. Gibbons, 359, 375.
— v. Grabham, 415, 416.
— v. Johnston, 13, 18.
v, Towers, 311.
Haslcham v. Young, 280.
Hastelow v. Jackson, 65.
Hastings v. Whitley, 390.
Hatchett v. Baddeley, 234, 236.
Hathaway v. Barrow, 5.8.
Hatsall ». Griffith, 215.
Hatton v. Royle, 28v.
Haule v. Hemyng, 339.
Hawes v. Armstrong, Lit.
v, Forster, 276.
Hawken v. Bourne, 277, 278, 279.
Hawkes v. Saunders, 316, 317.
Hawkins v. Rutt, 482.
v, Whitten, 555.

LITT

 

 

 

 

 

 
TABLE OF CASES,

Hawley v. Beverley, 42.

Hawtayne v. Bourne, 267, 278.

Hay v. Ayling, 379.

Haycraft v. Creasy, 187.

Haydon v. Williams, 484, 581, 534,
536.

Hayes v. Warren, 315.

Hayward v, Young, 390.

Hazard v. Treadwell, 267, 283, 288.

Hazelgrove v. House, 500.

Head v. Baldrey, 164.

v. Diggon, 20, 22.

Heald ». Kenworthy, 295, 299.

Healey v. Spence, 419.

Heard v. Stamford, 633.

v. Wadham, 419.

Hearne v. Tenant, 447.

Heath v. Chilton, 636.

v. Hall, 603.

Heatley v. Thomas, 238.

Hebdon v. West, 380, 381.

Hedley v. Bainbridge, 280.

Heinekey v. Earle, 8, 414.

Hellings v. Shaw, 531.

Helps v. Clayton, 233, 631.

v. Winterbottom, 333, 528.

Helyear ». Hawke, 274, 284.

Hemingway v. Hamilton, 183.

Hemming v. Hale, 285.

Hemp v. Garland, 527.

Ifenderson v. Australian Royal Mail
Steam Nay. Co., 253.

—— v. Barnewell, 286.

v. Henderson, 74, 75, 91.

v. Royal British Bank, 108.

v. Stobart, 467, 468.

». Wild, 483, 486.

Henfree v. Bromley, 425.

Henkle », Royal Exchange Ass. Co.,
175.

Henley v. Soper, 74, 92.

Henman v. Dickinson, 433.

Henniker v. Wigg, 493.

Henry v. Earl, 472.

v. Goldney, 513.

Henwood v. Oliver, 459.

Herbert v. Pigott, 502.
v. Salisbury & Yeovil Ry. Co.,

81

2

 

 

 

 

 

 

 

 

 

 

 

v. Sayer, 651.

Herries v. Jamieson, 214, 587.
Herring v. Dorrell, 329.
Heseltine v. Siggers, 138.
Hesketh v. Fawcett, 458.
Hewlins v. Shippam, 184.
Heyman v. Neale, 275.
Heyworth v. Knight, 99.
Hibbert v. Shee, 438.
Hibblewhite v. M‘Morine, 80, 81.
Hick v. Phillips, 440.

 

XXXvil

Hickey v. Burt, 503.

Hicks v. Mareco, 584.

Hidson v, Barclay, 502.

Tligeen’s case, 506, 507, 508.

Higgins v. Pitt, 54, 66, 67, 404, 408,
409,

v. Sargent, 584, 585.

v. Scott, 530.

—— v, Senior, 119, 294, 295, 298,
302.

Higginson v. Clowes, 179.

Higgons v. Burton, 197.

Highmore v. Primrose, 68.

Hilhouse v. Davis, 584.

Hili, He p., 558.

v. Fox, 402.

—— v. Grange, 449.

—— v. Gray, 184.

v. Halford, 335.

v, Patten, 431, 432.

v. Perrott, 29.

—— v. Saunders, 240.

—— v. Smith, 62, 549.

Hillman v. Uneles, 470.

Hills v. Street, 57.

Hilton v. Eckersley, 392.

Hinde v. Whitehouse, 1382, 139, 151,
160.

Tindley v. Marquis Westmeath, 244,
398.

Hinton v. Acraman, 560.

Hipwell v. Knight, 447.

Hirschfield v. Smith, 427.

Hitehcock v. Coker, 312, 387, 388,
389.

v. Giddings, 177.

—— v. Humfrey, 338, 340.

Hitchin v. Groom, 173.

Hoad v. Grace, 314.

Hoadley v. M‘Laine, 144, 147.

Hoare v. Graham, 105.

v. Rennie, 348, 351, 437.

Hobson wv. Trevor, 577.

Hoby v. Roebuck, 131, 137.

Hochster v. Delatour, 462, 464.

Hodges v. Hodges, 28, 244.

v. Karl of Litchfield, 586, 595,
596, 507.

Hodgkinson v. Fletcher, 214.

Hodgson v. Anderson, 128, 609, 610.

— v. Davies, 112.

v. Johnson, 131, 165.

v. Le Bret, 159, 160.

v. Sidney, 646.

Hodsoll v. Stallebrass, 567.

Hodson v. Terrill, 65.

Tloe’s case, 4Y8.

Hogan v. Page, 586.

Hogg v. Skeen, 282.

v. Snaith, 270.

 

 

 

 

 

 

 

 

 

 

 

 

 
XXXVHi

Holding v. Pigott, 115.

Holford v. Hatch, 625, 628.

Hfolland v. Eyre, 14.

Holliday v. Atkinson, 311.

Hollis’s case, 530.

Holman v. Johnson, 401, 405.

Holme v. Guppy, 367.

Holmes v. Bell, 507, 508.

v. Blogg, 229, 230.

.v, Jaques, 211.

— v. Kerrison, 528.

— v. Mitchell, 145.

— v. Tutton, 305.

v, Williamson, 43.

v. Wood, 241, 242.

Holt v. Brien, 214, 247.

v. Clarencieux, 231.

— v. Ely, 49.

Homershamv. Wolverhampton Water-
works, 251.

Homfray v. Scroope, 526.

Honeyman v. Marryat, 21, 23, 99.

Honner v. Morton, 635.

Hood v. Aston, 283.

v. Grace, 121.

v. Oglander, 171.

Hooper v. Stephens, 481, 538.

v. Treffry, 43.

Hope v. Hope, 245.

Hopkins v. Grazebrook, 596.

v. Logan, 70, 315.

—_ v. Prescott, 381, 382, 409, 410.

v. Tanqueray, 17, 198.

Hopkinson v. Lee, 220.

Hopper v. Richmond, 585.

Horn v. Bensusan, 548.

Hornby v. Lacy, 274, 277, 489.

Horner v. Flintoff, 579, 583.

v. Graves, 387, 388, 390.

Hornsby v. Lee, 635.

Horsfall v. Fauntleroy, 299.

v. Hey, 133, 138.

v. Thomas, 186.

Horton v. Riley, 45, 54, 67, 405, 409.

v. Sayer, 517, 519.

Horwood »v. Heffer, 211.

Hosken v. Sincock, 452.

Hotham v. East India Co., 351.

Hotson v. Browne, 102, 107, 124,
170.

Hough v. May, 476, 482.

Houghton v. Matthews, 274.

Houliston v. Smyth, 241.

Houriet v. Morris, 396.

Hovenden »v. Annesley, 530.

How v. Greek, 85.

Howard v. Baillic, 271.

v. Brownhill, 73.

v, Chapman, 490.

—— v. Hopkyns, 577.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CASES.

Howard v. Oakes, 240, 632.

v. Shepherd, 613.

v. Wood, 50.

v. Woodward, 84, 577, 578,
580.

Howcutt v. Bonser, 533, 543.

Howden v. Haigh, 401.

Howe v. Palmer, 159.

—— vr. Synge, 411.

Howell v. George, 171.

— ¥v. M‘Tvers, 603.

v. Young, 528.

Howlett v. Tarte, 512, 513.

Hoy v. Smythies, 423.

Hubert v. Treherne, 148, 149.

Huckman v. Fernie, 202, 380.

Hudson v: Bilton, 609.

v, Clementson, 117.

v Fawcett, 587.

v. Granger, 274, 305.

v. Revett, 78, 80, 432, 433.

Tughes v. Done, 393.

v. Graeme, 307, 599, 600.

v. Humphreys, 348, 370, 393.

v. Palmer, 424.

v. Thorpe, 68.

Hull ». Pickersgill, 269.

Hulle v. Heightman, 35.

Hulme v. Muggleston, 552, 553.

v. Tenant, 238.

Tlulse v. Hulse, 314, 327.

Humble v. Hunter, 303.

v. Mitchell, 132, 138.

Hume v. Bentley, 489.

v. Bolland, 67.

v. Hinton, 126.

v. Peploe, 337, 441, 451.

—- v. Pocock, 439.

Humfrey v. Dale, 110, 111, 295.

Hunt v. Bate, 31.

—— v. De Blaquiere, 245, 246.

— v. Hecht, 155.

—— v. Hunt, 399.

— v. Massey, 230.

—— v. Silk, 62, 194.

v. Swaine, 327.

Tunter v. Bowes, 584.

— v. Gibbons, 527, 530.

—— v. Hunt, bh

v. Prinseps, 35.

Hunting v. Sheldrake, 637.

Hurst v. Hurst, 575.

v. Usborne, 342.

Husband v. Davis, 486, 187.

Huscombe v. Standing, 20s,

Hussey v. Crickett, 377.

Hutchings v. Smith, 635.

Hutchinson xv. Heyworth, 603, 604,
609, 610. z

—- v. Reid, 548, 554.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
TABLE OF CASES.

Hutchinson v. Sturges, 551.

—— v. Sidney, 548.

Hutchison v. Bowker, 14, 111, 118,
119, 124.

Hutton o. Eyre, 504.

—— v. Warren, 110, 115.

Hybart v. Parker, 222.

Hyde v. Johnson, 265, 533.

—— v. Watta, 424,

v. Wrench, 23.

Hyleing v. Hastings, 531, 534.

 

Idle v. Thornton, 341.

Iggulden r. May, 620.

Imperial Gas Co. v. London Gas Co.,
529.

Inchbald v. oe Neilgherry Tea
Company, 3

Ingledew v. neaglis 234.

Inglis v. Haigh, 521.

Inman v. Stamp, 132.

Innell v. Newman, 503, 606.

Innes v. Stephenson, 487.

Irving v. Manning, 380, 582.

v. Veitch, 68, 538.

Isberg v. Bowden, 304, 553, 607.

Isherwood v. Oldknow, 626.

v. Whitmore, 456.

Israel v. Douglas, 609.

Ivens v. Butler, 632.

 

 

Jackson v. Allaway, 347.
v. Cobbin, 320.
—— v. Forster, 648.
—— v. Lomas, 403.

v. Lowe, 142, 146.
—— v. Warwick, 312.
Jacob v. Hart, 481.

v. Lindsay, 485.
Jacobs v. Fisher, 70, 71.
Jacomb v. Harwood, 486.
James v. Chapman, 140.
—— v. Child, 495.

—— v. Cotton, 36.

—— v. Isaacs, 488.

—— v. Morgan, 369.
—— v. Vane, 452, 453.
--— v. Williams, 476.
Jaques v. Withy, 550.
Jardine v. Payne, 69.
Jayne v. Hughes, 78.
Jeakes v. White, 132, 439.
Jee v. Thurlow, 399.
Jefferys v. Gurr, 41, 256.
v. Jefferys, 330, 331.
Jeffreson v. Morton, 94.
Jeffs v. Day, 607.

Jell v. Douglas, 216.
Jenkins v. Biddulph, 598.
— v. Hiles, 448.

 

 

 

 

 

XXX1X

Jenkins v. Hutchinson, 307.
—— v. Morris, 281.
—— v. Power, 484.
v. Reynolds, 144, 145.
Jenner v. Morris, 24-4, 246, 547.
Jenney v. Andrews, 239.
Jennings v. Broughton, 183, 190.
—— v. Brown, 317.
—— v. Rundall, 226.
—— v. Throgmorton, 401.
Jervois v. Duke of Northumberland,
439.

Fesse v. Roy, 35.
Jezson v. Solly, 613.
Jessop v. Lutwyche, 402.
Jeudwine v. Agate, 577.
Jewry v. Busk, 28.
Jewsbury v. Newbold, 243.
Johnson vz. Baker, 78.
v. Barratt, 502.
—— v. Blenkinsopp, 114, 422.
—— »v. Clay, 452.
—— v. Dodgson, 141, 148, 153, 161.
—— v, Gallagher, 238.
. Goslett, 61.
v. Hudson, 376, 394.
. Lansley, 66, 406.
—— v. Lucas, 242.
—— v. Macdonald, 341.
—— v. Medlicott, 250.
—— v. Pye, 227.
~—— v. St. Peter’s, Hereford, 629.
—— v. Spiller, 563.

— v. Sumner, 244, 245, 267.
fe ohnston »v. Nicholls, 314.
—— v. Usborne, 274, 275.
Johnstone v. Hudlestone, 421.
Jolly v. Rees, 243.
—— v. Young, 118, 446.
Jonassohn v. Young, 351.
Jones v. Arthur, 437.
v. Ashburnham, 126,324,327, 329
—-- v. Barkley, 344, 343, 351.
—— v. Broadhurst, 488, 470.
. Carter, 601.
—— v. David, 468.
—— v. Edney, 440.
—— v. Flint, 133, 134.
. Giles, 393.
. Green, 582.
—— v. Harris, 239.
—— v. Herbert, 502.
—— v. How, 369, 372, 373.
—— vr. Hughes, 540.
—— v. Jones, 119, 432.
—— v. Keen, 185.
—— v. King, 639, 641.
—— v. Littledale, 294, 295.
v. Morris, 44.
v. Nanney, 153.

 

 

 

 

 

 
xl TABLE OF CASES.

Jones v. Newman, 122.

—- v. Owen, 458.

v. Pope, 97, 522.

—— v. Provincial Ins. Co., 200, 201,
202.

—— v. Robinson, 222.

—— v. Ryde, 60.

—— v. Ryder, 70.

—— v. Simpson, 610.

—— v. Smith, 236.

—— v. Tanner, 73, 126.

—— v. Waite, 319, 399, 409.

—— v. Yates, 486.

Jordan v. Norton, 14.

Jorden v. Money, 131.

Joseph v. Knox, 269.

Josling v. Irvine, 590, 600,

—-v. Kingsford, 438.

Joule v. Taylor, 472, 569.

Jourdain v. Wilson, 622.

Joynes v. Statham, 174.

Judson v. Bowden, 346.

Julian v. Shobrooke, 334.

 

Kain v. Old, 17, 198.

Kaye v. Brett, 483, 489.

v. Dutton, 315, 327.

—— v. Waghorn, 418, 419.

Kearon v. Pearson, 362, 363.

Kearslake v. Morgan, 476.

Keates v. Earl Cadogan, 184, 186.

Keating v. Irish, 449.

Keech v. Hall, 627.

Keegan v. Smith, 245.

Keightley v. Watson, 217, 219, 220.

Keir v. Leeman, 383.

Kellner v. Le Mesurier, 396. '

Kelly v. Solari, 59.

v. Webster, 131.

Kemble v. Farren, 577, 579, 580, 583.

Kemp »v. Balls, 472.

v. Finden, 43.

—— v. Waddingham, 95.

——v. Watt, 488, £77, 611.

Kempson, Lx p., 561, 592.

Kempson v. Boyle, 16, 276.

Kennaway v. Treleavan, 25.

Kennedy v. Brown, 71.

». Lee, 13, 17.

Kennerly v. Nash, 432.

Kensington v. Inglis, 395.

Kenworthy v. Schofield, 101, 139,
143, 148, 151, 152.

Kern v. Deslandes, 613.

Kerrison v. Cole, 410.

Kershaw v. Cox, 431.

v. Ogden, 154,

Ketley’s case, 227, 230.

Ketsey’s case, 227, 230.

Keyes v. Elkins, 501, 505.

 

 

 

 

 

 

Keys v. Harwood, 32.

v. Williams, 603.

Kiddill v. Farnell, 288.

Kidwelly v. Brand, 448.

King v. Alston, 50.

v. Gillett, 414.

v. Hoare, 93, 214, 509, 511.

—— v. Hobbs, 326.

». Jones, 639.

v. Sears, 322.

—- v. Thom, 641.

Kingdon v. Nottle, 639, 640.

Kingsford v. Merry, 196, 197.

Kingston’s case, Duchess of, 88.

Kingston v. M‘Intosh, 584.

Kington v. Kington, 337, 455, 471.

Kinnerley v. Hossack, 550.

Kinnersley v. Mussen, 8¥.

Kintrea v. Preston, 605.

Kirby v. Duke of Marlborough, 442,
495.

Kirk v. Blurton, 280.

v. Bromley Union, 337.

Kirkham v. Marter, 130.

Kirton v. Braithwaite, 455, 459.

v. Wood, 69.

Kirwan v. Kirwan, 611.

Kisch v. Central Venezuela Ry. Co.,
183, 191.

Kitchen v. Bartsch, 651.

v. Buckley, 220.

Knibbs v. Hall, 56.

Knight v. Barber, 99, 138.

v. Burgess, 649.

v. Cambers, 402.

v. Clements, 433.

v. Hipwell, 447.

Knights v. Quarles, 640, 641.

Knill v. Williams, 431.

Knowles v. Michell, 68, 72, 167.

Knox v. Bushell, 246.

Koster v. Eason, 289, 292.

Kymer v. Suwercropp, 299.

 

 

 

 

 

 

 

 

 

 

 

 

Lacon v. Hooper, 446.

Lacy v. Kinaston, 50 !.

Laing v. Chatham, 547.

v. Meader, 459.

Laird v. Pim, 351.

Lamb’s case, 370.

Lamb v. Bunce, 27.

Lamert v. Heath, 60, 64.

Lamiue v. Dorrell, 50.

Lampet’s case, 601.

Lampleigh v. Brathwait, 24,311, 315.

Lampon v, Corke, 485, 500,

Lamprell v. Billericay Union, 33
255, 257, 887, 494. :

Lane v. Bennett, 525.

v. Burghart, 128.

 

 
TABLE OF CASES.

Lane v. Hill, 69, 569.

v. Ironmonger, 24:3.

Lang v. Gale, 173, 446.

Langhorn v. Cologan, 425.

Langton v. Hughes, 400.

— v. Lazarus, 426.

Larkin v. Marshall, 632.

Lassence v. Tierney, 167.

Laughter’s case, 358, 372, 373.

Laughton ». Taylor, 513.

Laurence v. Twentiman, 364.

Lavery v. Turley, 167. '

Lavie v. Phillips, 236.

Law v. Hodson, 393.

v. Hudson, 376.

v. London Indisputable

Policy Co., 381.

v. Wilkin, 28.

Lawes v. Purser, 64.

Lawrence v. Knowles, 648.

Laws v. Rand, 480.

Laycock v. Pickles, 72.

Laythoarp v. Bryant, 143, 150, 323.

Layton v. Pearce, 354.

Lazarus v. Cowie, 488.

Leadbitter v. Farrow, 293.

Leaf v. Tuton, 162,

Lean v, Schutz, 234, 236.

Leaper v. Tatton, 531.

Le Bret v. Papillon, 397.

Lechmere v. Fletcher, 509, 533, 534,
535, 541.

Le Compte, Ze p., 558.

Lee v. Armstrong, 634.

v. Bullen, 292.

v. Griffin, 22, 139.

—~ v. Jones, 203, 204.

v. Muggeridge, 316.

v. Nixon, 218.

v, Risdon, 133.

v. Wilmot, 533.

Leeds v. Lancashire, 105.

Lees v. Whitcomb, 144.

v. Whiteley, 604.

Le Fevre v. Lloyd, 293.

Leftley v. Mills, 441.

Legh v. Legh, 503, 606.

v. Lillie, 486, 574, 575.

Leicester v. Rose, 404.

Leideman v. Schultz, 117.

Leifchild’s case, 260, 310.

Leigh v. Lillie, 436, 574, 575.

v. Paterson, 463, 590.

Leightly v. Clouston, 48.

Leighton v. Wales, 391, 579.

Lekeux v. Nash, 629.

Lemere v. Elliott, 71.

Lennard v. Robinson, 291.

Leroux v. Brown, 162.

Leslie v. Guthrie, 606.

 

 

Life

 

 

 

 

 

 

 

 

 

 

 

 

xli

Lester v. Garland, 446.

Lett v. Morris, 603.

Leverson v. Lane, 283.

Levy v. Green, 13, 16, 437.

v. Pyne, 266, 280.

-— v. Yates, 402.

Lewes v. Ridge, 629.

Lewis v. Campbell, 25, 39, 41, 46, 620.

— v. Hammond, 57.

v. Jones, 182, 408, 474.

—— v. Lee, 237.

v. Lyster, 467, 477.

—— v. Nicholson, 298, 307.

v. Peake, 593, 598.

Lexington v. Clark, 164.

Lickbarrow v. Mason, 618, 614.

Lidderdale v. Duke of Moutrose, 381.

Lidlow v. Wilmot, 244.

Lievesley v. Gilmore, 516.

Lightfoot v. Heron, 250.

v. Tenant, 400, 401.

Lightly v. Clouston, 30,

Lilley v, Hewitt, 338.

Lilly v. Hays, 609.

Lillywhite v. Devereux, 153, 157.

Lindenau v. Desborough, 199, 200, 202.

Lindley v. Lacey, 103, 108, 110.

Lindon v. Hooper, 48, 56, 61.

Lindus v. Melrose, 2 4.

Linnegar v. Hodd, 325.

Linscll v. Bonsor, 533.

Litt v. Martindale, 49.

Littler v. Holland, 418, 419.

Liverpool Adelphi Loan Ass. v. Fair-
hurst, 227, 235.

Liverpool Borough Bank». Eccles, 150.

Liversidge v. Broadbeut, 609, 610.

Livingston v. Ralli, 518.

Livingstone v, Whiting, 475.

Llewellyn v. Llewellyn, 330.

Lloyd v. Ashby, 282.

v. Collett, 447.

v. Crispe, 370.

—— v. Guibert, 42.

—— v. Johnson, 400, 401.

—— v. Maund, 531, 534.

Load v. Green, 196.

Lobb ». Stanley, 148.

Lock v. Furze, 565, 597.

Lockett v. Nicklin, 101, 102.

Lockwood v. Salter, 635.

Loder v. Kekule, 594, 595.

Lodge v. Dicas, 468, 611.

Logan v. Hall, 600.

London and Birmingham Ry. Co. »v.
Winter, 174.

London Dock Co. v, Sinnott, 250, 254,
353.

London Gas Co. v. Vestry of Chelsea,
257, 349.

 

 

 

 

 

 

 
xl

Longchamps v. Kenny, 46.

Longridge v. Dorville, 327, 329, 330.

Lord v, Hall, 286.

Loring v. Warburton, 56.

Lorymer v. Smith, 199, 438.

Lovatt v. Hamilton, 341.

Lovell v. Walker, 234, 631.

Lovelock v. Franklyn, 461.

Loveridge v. Cooper, 604.

Lowe v. London and North-Western
Ry. Co., 256.

v. Peers, 398, 574, 575, 581, 582.

v. Steele, 472.

Lowndes v. Lane, 190.

Lowry v. Bourdieu, 64, 65, 66, 407.

Lowther v. Lowther, 332.

Loyd v. Lee, 327.

Lubbock v. Tribe, 46.

Lucas v. Bristow, 118.

—— v. De la Cour, 302.

». Godwin, 33, 36.

v. Jumes, 15, 149.

Luce v. Izod, 181.

Lucena v. Craufurd, 269, 380.

Luckie v. Bushby, 548.

Lucy, Er p., 329.

Lucy v. Levington, 6 10.

Ludlow (Mayor of) v. Charlton, 250,
252, 255, 257.

Lyall v. Edwards, 181.

Lynn’s (Mayor of) case, 251.

Lyun v. Bruce, 467, 469.

Lysney v. Selby, 191.

Lyth v. Ault, 468.

Lythgoe v. Vernon, 48.

 

 

 

 

Maberley v. Robins, 584, 586, 595.
—— vv. Sheppard, 153, 158.
M‘Andrew v. Chapple, 342.
Macbryde v. Weekes, 194, 448.
M‘Call v. Taylor, 211.
Maclae v. Sutherland, 281, 282.
Maclean v. Dunn, 152, 268.
M‘Clure v. Dunkin, 584, 586.
M‘Combie v. Davies, 275.
M‘Connell v. Hector, 396.
M‘Culloch v. Gregory, 423.
Macdonald v. Longbottom, 120.
M‘Fadden. v. Jenkyns, 330, 332, 603.
Macfarlane ». Giaunocopulo, 300.
M‘Gowan v: Smith, 603, 604.
M‘Intosh v. Great Western Ry. Co.,
337.
M‘Intyre v. Miller, 488.
M‘Tver v. Richardson, 13.
M‘Kellar v. Wallace, 72.
M‘Kinnell ». Robinson, 02.
Mackintosh v. Trotter, 133.
M'Neilage ». Holloway, 210, 630.
M‘Neill v. Reid, 370.

TABLE OF

 

CASES.

Madeley v. Booth, 440.

Magee v. Atkinson, 294, 295.

Magrane v. Archbold, 578.

Mahony v. Kekule, 291, 296.

Maillard v. Duke of Argyle, 477.

Main’s case, 351, 352, 460.

Mainwaring v. Brandon, 598.

v. Leslie, 245.

Malcolm v. Scott, 610.

Malden v. Fyson, 596, 597.

Malins v. Freeman, 170.

Mallalieu v. Hodgson, 403.

Mallam v. Arden, 356.

Mallan v. May, 117, 387, 389, 390,
392, 411.

Mallett v. Bateman, 127.

Malpas v. London & South-Western
Ry. Co., 102.

Maltby v. Murrells, 337, 455.

Manby v. Cremonini, 353.

v. Scott, 234, 243, 244,

Mansell v. Burredge, 218.

Manser’s case, 577.

Manser v. Back, 171.

Maples v. Pepper, 561.

Mardall v. Thellusson, 552.

Mare v. Charles, 294.

Marlow ». Pitfield, 234,

v. Smith, 439.

Marriott v. Hampton, 55.

Marryotts v. White, 492.

Marsden v. Moore, 346.

Marsh v. Hutchinson, 236.

v. Keating, 49, 51.

v. Pedder, 477.

Marshall, Ex p., 560.

Marshall v. Broadhurst, 643.

—— v. Lynn, 415, 416.

— v. Poole, 585, 589.

—— v. Rutton, 237,

—— »v. Wilson, 69, 71, 72.

Martin v. Andrews, 61.

v. Brecknell, 492.

—— v, Crump, 216.

—— v. Hewson, 65.

—— v. Mitchell, 150.

—-— rv. Morgan, 59.

—— v. Pycroft, 103, 174, £76.

Martyn v. Hind, 222.

——v. Williams, 622, 623.

Marvin v. W: allace, 158.

Marzetti v. Williams, 12, 567, 368.

Mason v. Armitage, 171.

—— v. Booth, 432.

——v. Morgan, 240.

—— v. Rumsey, 281.

—— v. Whitehouse, 189.

Massey v. Johnson, 132, 167, 466, 473.

Master v. Miller, 191, 326, 124, 426,
429, 605,

 

 

 

 

 

 
TABLE OF CASES.

Masters, Re, 386.

Masters v. Ibberson, 191.

Mather v. Lord Maidstone, 311.

Mathew v. Blackmore, 37.

Mathewson’s case, 218, 429,

Matson v. Wharam, 126.

Maugham v. Hubbard, 485.

—— v. Sharpe, 224.

Maunsell ». White, 9.

Mavor v. Pyne, 31, 135.

Maw v. Ulyatt, 547.

Mawson »v. Blane, 230.

Maxwell v. Jameson, 47.

May v. Chapman, 198.

Mayfield v. Wadsley, 134, 165, 494.

Mearing v. Hellings, 66.

Mechelen v. Wallace, 131, 164.

Megginson v. Harper, 5-41.

Mellish v. Motteux, 185.

Mendel, Ex p , 562.

Menetone v. Athawes, 365.

Mennett v. Bonham, 395.

Mercer v. Irving, 579, 584.

Meredith v. Meigh, 155.

Meres v. Ansell, 103.

Merryweather v. Nixan, 44.

Metters v. Brown, 88.

Meus v. Bell, 604.

Mews v. Carr, 151.

Meyer v. Everth, 17, 104,

—— v. Haworth, 237.

Meynell v. Surtees, 18, 28, 602.

Middleditch v. Ellis, 71, 72,

Middlemore v. Goodale, 615, 620, 622.

Middleton v. Gill, 585.

Midland Ry. Co. v. Pye, 238.

Milbourn v. Ewart, 83, 631.

Miles v. Gorton, 648.

—— v, Williams, 635.

Miller v. Atlee, 62.

—— v. Woodfall, 211.

Mills v. Alderbury Union, 58.

—— v. Barber, 311.

—— v. Bayley, 336.

—— v. Blackall, 25.

—— v. Fowkes, 491, 495, 496, 497,
510.

—— v. Ladbroke, 220.

Miln v. Prest, 334.

Milner », Field, 29, 336.

—— v. Milnes, 234, 630, 631.

Milnes v. Branch, 623.

—— v. Duncan, 58.

Milvain v. Mather, 553.

Minshall v. Lloyd, 133.

Minshull v. Oakes, 619.

Mitcalfe v. Hanson, 561.

Mitchell v. Cragg, 474.

—— v. Reynolds, 387.

Mitchinson v. Hewson, 63], 633.

 

xlii

Mitford v. Mitford, 635.

Mizen v. Peck, 244, 243.

Moens v. Heyworth, 200.

Moffat v. Parsons, 455, 459.
Moffatt v. Laurie, 35.

Moggridge v. Jones, 346.

Moller v. Lambert, 224,

—— v. Young, 613.

Mollett v. Wackerbarth, 424,425, 428.
Molton v. Camroux, 247, 248, 249.
Mondel v. Steel, 512, 589.

Money v. Jorden, 9, 192.

Monk v. Sharp, 606.

Montacute v. Maxwell, 130, 131.
Montague v. Benedict, 243, 247.
Montefiori v. Montefiori, 130, 192.
Moodie v. Bannister, 543.

Moore v. Bushell, 610.

—— v. Campbell, 109, 276, 417, 438.
v. Clementson, 303.

—— v. Garwood, 15,61, 101,124
—— v. Metropolitan Sewage Co., 553.
—— v. Pyrke, 44, 47.

More v. Morecomb, 370, 372.
Morehouse v. Colvin, 9.

Morgan v.- Birnie, 336,

—— v. Gath, 437.

—— v. Knight, 651.

——- v. Painter, 631.

—— v. Palmer, 57.

—— v. Pike, 80, 85.

—— v. Rhodes, 602.

—— v. Sykes, 164.

Morley v. Attenborough, 60, 198.
—— v. Boothby, 145, 324.

—— v. Cook, 423.

—— v. Culverwell, 488.

—— v. Frear, 501, 505.

—— v. Ingles, 518.

—— v. Morley, 522.

Morrell v. Frith, 532, 534.

—— v. Wootten, 603, 610.
Morris v. Cleasby, 277, 304.

—— v. Mellin, 91.

—— v. Norfolk, 234,

Mortimer v. Gell, 402.

—— v. Mortimer, 399.
Mortimore v. Wright, 28.
Morton v. Burn, 25, 326, 605.
-—-— v, Lamb, 347.

—— v. Tibbett, 154.

Moseley v. Cressey’s Company, 61.
—— v. Hanford, 105.

Moses v. Macferlan, 39, 47, 48.
Moss v. Smith, 235, 357.

Mostyn v. Fabrigas, 618.
Motteux v. London Ass. Co., 175.
Moulsdale v. Birchall, 326.
Mountstephen v. Brooke, 214, 533.
Mowat v. Londesborough, 61.

 
xliv

Mozley v. Tinkler, 13.

Mucklow v. Mangles, 137.
Mullett v. Mason, 594.

Mumford v. Gething, 120.
Muncey v. Dennis, 115.

Munro v. Butt, 29.

—— v. De Chemant, 243.
Murly v. M‘Dermott, 122.
Murray v. Barlee, 238, 239.

v. East India Co., 252, 585.
». Earl Stair, 78.

—— v. Mann, 187, 192, 198.
—— v. Parker, 122, 175.
Musgrave v. Drake, 282.
Muskett v. Hill, 623.

Mussen v. Price, 333.

Myers v. Sarl, 111, 114, 117, 118.
—— v. Watson, 183.

 

 

Nash v. Armstrong, 325, 420.
—— v. Hodgson, 496, 540.
National Assur. Ass. v. Best, 568.
National Exchange Co. v. Drew, 189.
Neale v. Ratcliff, 3438, 350.

—— v. Wyllie, 600.

Neap v. Abbott, 179.

Neate v. Harding, 49.

Neill v. Whitworth, 342.

Neilson v. Harford, 119, 123.
Nelson v. Serle, 126.

—— v. Stocker, 227.

Nelthorpe v. Holgate, 602.

Nerot v. Wallace, 323, 360, 375.
Ness v. Angas, 242.

Neve v. Hollands, 541, 545.
Neville v. Wilkinson, 130, 192.
Newhall v. Holt, 70.

Newman v. Newman, 410.
Newmarch v. Clay, 492, 493.

Newry and Enniskillen Ry. Co. 2.

Coombe, 228.
Newsome »v. Coles, 279.
—— v. Graham, 61.
Newton v. Blunt, 513.
—— v. Boodle, 632.
—— v. Conyngham, 588.
—— v. Marsden, 398.
Nichol v. Bestwick, 434, 590.
—— v. Godts, 438.
Nicholl v. Bromley, £38.
Nicholls v. Diamond, 281, 294.
—— v, Maynard, 581.
—— v. Stretton, 391, 392, 411.
Nichoison v. Bower, 155, 160, 163.
—— v. Bradfield Union, 254, 438.
—— v. Gooch, 66, 406.
—— v. Revill, 470, 501.
—— v. Ricketts, 280.
Nicklin v. Williams, 567.
Nicol’s case, 192, 166, 467, 173.

TABLE OF

 

CASES.

Nicoll v. Greaves, 422.

Niell v. Morley, 249.

Nightingale v. Devisme, 67.

Noble v. Bank of England, 434.

—— v. National Discount Co., 609.

—— v. Ward, 415, 416, 417.

Noke v. Awder, 620, 622.

Nordenstrom v. Pitt, 587.

Norman ». Phillips, 155, 156.

—— v. Thomson, 319.

Norfolk Ry. Co. v. M‘Namara, 506,
507.

North v. Wakefield, 501.

North British Ins. Co. v. Lloyd, 203,
204.

North-Western Ry. Co. v. M‘Michael,
227, 228.

Northampton Gas Light Co. v. Par-
nell, 80.

Northumberland (Duke) v. Errington,
218.

Norton v. Ellam, 333, 337, 455, 527.

—— v. Fazan, 243.

—— v. Herron, 290.

—— v. Seymour, 280.

Norval v. Pascoe, 622, 623, 628.

Norwich (Mayor of) v. Norfolk Ry.
Co., 258.

Nosotti v. Page, 472.

Notley v. Buck, 51.

Novelli v. Rossi, 75, 430.

Nowlan v. Ablett, 114, £22, 444.

Nunn v. Fabian, 167.

Nurse v. Craig, 245.

—— v, Wills, 241.

Nye v. Moseley, 400.

Oakden v. Pike, 448.

Oates v. Hudson, 54.

Odell v. Wake, 629.

Odes v. Woodward, 287.

Offley v. Clay, 488.

Offord v. Davies, 25.

Ggilvie v. Foljambe, 122, 148.

O’Hanlan v. Great Western Ry. Co.,
571, 591.

O’Herlihy v. Hedges, 602.

Okill v. Whittaker, 178.

Oldershaw v. King, 324.

Ollivant v. Bailey, 170, 199.

Oliver v. Fielden, 342.

—— v. Woodroffee, 23-4.

Ollive v. Booker, 342.

O’Mealey v. Wilson, 396.

Onslow v. Corrie, 629.

Oriental Inland Steam Co. v. Briggs,
15. ie

Orme v. Broughton, 641.

—— v. Galloway, 319.

Omnes v. Beadel, 209.
TABLE OF CASES.

Ormrod v. Huth, 10, 187, 198.
Orrell v. Coppock, 329.
Osborne v. Williams, 408.
Oughton v. Seppings, 51, 56.
Outhwaite v. Luntley, 431.
Overend Gurney and Co., In re, 553
Overton v. Harvey, 510.

Owen v. Challis, 47.

—— v. Daries, 249.

—— v. Homan, 203, 506.
—— v. Van Uster, 281, 29 4.

v, Wilkinson, 551.

Owens v. Dickinson, 238.
Owenson v. Morse, 476.
Oxendale v. Weiherell, 33, 437.
Oxley v. James, 623.

Ozard v. Darnford, 245.

 

Page v. Adam, 428.
v. Newman, 585.

Paine v. Strand Union, 255.
Palk v. Force, 394.

Palmer v. Edwards, 628.

—— v. Temple, 511.

Palyart v. Leckie, 66, 407.
Paradine v. Jane, 362.
Pargeter v. Harris, 618, 623, 624.
Parmiter v. Parmiter, 533, 534.
Parnham v. Hurst, 650.
Parker v. Beasley, 292.
—— v. Crole, 51, 563.
v. Great Western Ry. Co., 57.
—— v. Ibbetson, 9, 111, 114, 115,

119, 124, 422.

—— v. Norton, 51, 563.
—— v. Patrick, 197.
—— v. Staniland, 134.

--~ v, Wallis, 154.
—— v. Winlow, 290, 291, 362.
v, Wise, 601.
Parkes v. Smith, 516.
Parkin v. Carruthers, 279.
—— v. Thorold, 447, 448.
Tarkinson v. Collier, 114.
—— v. Lee, 438.
Parry v. Great Ship Co., 436.
—-— v. Nicholson, 433.
v. Roberts, 62.
Parson v. Sexton, 335.
Parsons v. Alexander, 378.
—— v. Thompson, 382.
Parton v. Crofts, 142, 146, 276.
Partridge v. Bank of England, 490.
Pasley v. Freeman, 187.
Paterson v. Gandasequi, 297.
Patmore v. Colburn, 414.
Paton v. Rogers, 448.
Patrick v. Sheddon, 74.
Paul v. Nurse, 620, 629.
Pawle v. Gunn, 166.

 

 

 

 

 

xlv

Paxton v. Popham, 86, 401, 405.
Payler v. Homersham, 404, 500.
Payne v. Cave, 13, 20.

v. Chapman, 55.

—— v. Haine, 120.

—— v. Rogers, 503.

—— rv. Wilson, 325.

Paynter v. Williams, 27.
Peacock v. Harris, 69.

—— v. Jeffery, 550.

—— v. Penson, 183.

—— v. Pursell, 479.

Pearce v. Brooks, 400, 401.
—— v. Davis, 476.

 

~Pechell v. Watson, 385.

Peek v. North Staffordshire Ry. Co.,
101.

Peeters v. Opie, 346.

Pellecat v. Angell, 401.

Pellew v. Wonford, 446.

Pemberton v. Vaughan, 389.

Penfold v. Abbott, 620, 626.

Penkivil v. Connell, 281.

Penley v. Watts, 600.

Pennell v. Walker, 518.

Penniall v. Harborne, 436.

Peuny v. Porter, 356.

Perez v. Oleaga, 180.

Perham v. Raynal, 543.

Perkins v7 Kempland, 558.

Perring v. Hone, 426.

Perry v. Attwood, 71, 476.

v. Slade, 69, 70.

Perrymun’s case, 79.

Petch v. Lyon, 71.

Peter v. Compton, 136.

Peters v. Anderson, 491, 495.

—— v. Fleming, 233, 234.

Petre (Lord) v. Eastern Counties
Ry. Co., 264.

Petrie v. Bury, 80, 81, 216.

—— v. Nuttall, 88.

Phelps v. London and North-West-
ern Ry. Co., 572.

Phillimore v. Barry, 142, 149.

Phillips v. Bistolli, 153, 154, 169.

v. Briard, 113.

—— v. Clagett, 502, 503, 504, 606.

—— v. Clift, 81.

—— v. Ward, 510, 511.

Philliskirk v. Pluckwell, 241.

Philpot v. Briant, 125.

—— v. Wallett, 130.

Philipott v. Adams, 74.

v. Jones, 406, 496, 497.

Phillpotts v. Clifton, 458.

—— v. Evans, 464, 589, 590.

Pickard v. Bankes, 67.

v. Seers, 8.

Pickering v. Busk, 266, 272

 

 

 

 
xlvi

Pickering v. Dowson, 17, 198.

Pidcock v. Bishop, 204.

Piddington v. South-Eastern Ry. Co.,
57.

Pierce v. Fothergill, 585.

Pierson v. Dunlop, 334.

Pigot’s case, 410, 424, 425, 427,
429.

Pigot v. Cubley, 455.

Piggott v. Rush, 524.

v. Thompson, 222, 223.

Pilbrow v. Pilbrow’s Atmospheric
Ry. Co., 193.

Pilkington v. Scott, 312, 388, 389.

Pillans v. Mierop, 10, 311, 324.

Pince v. Beattie, 386.

Pinder v. Barr, 50.

Pinkerton v. Caslon, 574.

Pinnel’s case, 468, 474.

Pistor v. Cater, 85.

Pitcher v. Bayley, 46.

v. Roberts, 588.

Pitman v. Woodbury, 85.

Pitt v. Coomes, 55.

v. Smith, 249.

Pittam v. Foster, 541, 545.

Pitts v. Beckett, 142, 148, 151, 276.

Planché v. Colburn, 31.

Plaskett’s Estate, Re, 400.

Player v. Blandy, 454.

Plimley v. Westley, 476.

Plomer v. Long, 492, 495.

Plummer v. Woodburne, 514.

Pole v, Harrobin, 208.

— v. Leask, 277.

Polglass v. Oliver, 457.

Polhill v. Walter, 8, 186, 187, 308.

Pollock v. Stables, 42.

Pontifex v. Wilkinson, 351.

Poole v. Hill, 346, 347.

v. Tumbridge, 337, 441, 450,

454.

Pooley v. Harradine, 221.

Pope v. Gardland, 191.

Poplett v. Stockdale, 383, 400.

Pordage v. Cole, 344, 346, 347.

Porritt ». Baker, 394.

Porter v. Cooper, 68.

—— v. Taylor, 486.

Portman v. Middleton, 373, 592.

Portmore (Ear) of) v. Bunn, 623.

Pott v. Clegg, 530.

—— v. Flather, 589.

v. Lomas, 603, 606, 610.

Potts v. Bell, 395.

Poulter v. Killingbeck, 166.

Poulton v. Lattimore, 63, 589.

Pounsett ». Fuller, 596.

Pow v. Davis, 307, 599.

Powel v. Little, 489.

 

 

 

 

 

 

TABLE OF CASES.

Powel v. Milbank, 50.

Powell v. Divett, 425.

—— v. Duff, 79.

—— v. Edmunds, 102, 104.

—— v. Graham, 644.

—w— v. Horton, 117.

—— v. Jessop, 132.

—— v. Rees, 51.

Power v. Butcher, 47, 484.

Powis v. Harding, 198.

Powles v. Innes, 605.

Pownal v. Ferrand, 41, 43, 46.

Pratt v. Hobhouse, 67.

v. Vizard, 54.

—— v. Willey, 490.

Prebble v. Boghurst, 577.

Prescott v. Flinn, 266.

Preston v. Chrismas, 467.

v. Liverpool, Manchester, etc.,

Ry. Co., 259.
—— v. Merceau, 105.
Pritchard v. Merchants’
Soe., 177, 201.

Proctor v. Sargent, 387, 390, 391.

Prole v. Soady, 181.

Propert v. Parker, 148.

Pro:ser v. Edmonds, 386.

Price v. Barker, 501, 504.

v. Dyer, 417.

—— v. Easton, 221, 313, 608.

—— v. Great Western Ry. Co., 586.

—— v. Green, 411.

. Hewett, 227.
v. Lea, 160.
v. Ley, 175.
v. Moulton, 506, 507.

—— v. Neale, 60.
v
v
v

 

 

Life

Tns.

 

. North, 177.

. Price, 340, 450, 478.

. Richardson, 145.

—— v. Seaman, 326, 605.

—— v. Shute, 213.

—— v. Taylor, 293.

Prickett v. Badger, 32.

Prince v. Prince, 251.

Prince of Wales Ass. Co. v. Harding,
262, 263.

Prior v. Hembrow, 4.

Pritchard v. Merchants’
surance Soc., 361.

Pritchet v. Boevey, 595, 600.

Puckford », Maxwell, 476.

Pugh v, Duke of Leeds, 446,

v. Stringfield, 215, 216, 219.

Pullin v. Stokes, 325.

Pulsford v. Richards, 188, 189, 192.

Pulvertoft v. Pulvertoft, 313, 330,

Purchell v. Salter, 303.

Purdew v. Jackson, 633, 635.

Pust v. Dowie, 350.

Life As-

 
TABLE OF

Pym v. Campbell, 98, 109.
Pyrke v. Waddingham, 439.

Quarles v. Capell, 87.
Queiroz v. Trueman, 52, 275.

Rabone v. Williams, 303.

Rackham v. Marriott, 534.

Radcliffe v, Warrington, 447.

Radford v. Smith, 337.

Raffles v. Wichelhaus, 179.

Raikes v. Todd, 492.

Railton v. Mathews, 203.

Raleigh v. Atkinson, 274, 287, 314.

Ramazotti v. Bowring, 304, 490.

Rambert v. Cohen, 485.

Ramsbottom v. Gosden, 174.

Ramsgate Victoria Hotel Co. v. Gold-
smid, 18.

Ramuz v. Crowe, 434, 480.

Randall v. Moon, 472, 488.

v. Morgan, 9, 180.

v. Raper, 594, 600.

v. Rigby, 623, 629.

Randegger v. Holmes, 518.

Randell v. Trimen, 307, 598.

Randle v. Gould, 399.

Ranelagh (Lord) v. Melton, 448.

Ranger v. Great Western Ry. Co.,
580.

Rann v. Hughes, 98, 125, 143, 318,
324,

Raper v. Birkbeck, 430.

Rawlings v. Bell, 187.

Rawlins v. Wickham, 189.

Rawlinson v. Clarke, 419, 584.

v. Oriet, 513.

Rawson v. Johnson, 347.

—— v. Walker, 105.

Rawstorne v. Gandell, 502, 503, 606.

Raymond ». Fitch, 619, 640.

Rayment v. Minton, 348.

Rayner v. Grote, 306.

Read v. Brookman, 433.

—— v. Goldring, 459, 487.

—— v. Hutchinson, 30.

—— v. Legard, 244, 248.

—— v. Nash, 130.

—— v. Pope, 91.

—— v. Rann, 33, 35.

Reader v. Kingham, 129.

Reay v. Richardson, 110.

Rede v. Farr, 338, 424.

Redpath v. Wigg, 307.

Reed v. Deere, 414.

--— v. James, 52.

—— v. Key, 380.

Rees v. Berrington, 221.

—— v. Watts, 552.

Reeves v. Hearne, 469, 470, 538.

 

 

 

 

 

 

CASES. xlvii

Reeves v. Watts, 224,

Reffell v. Reffell, 78.

Reg. v. Chawton, 173, 446.

—— v. Justices of Cumberland, 255.

~-— v. Hughes, 89.

—— v. Mills, 49.

—— v. Saddlers’ Co., 195.

—— v. St. Paul’s, Covent Garden, 77.

—— v. Mayor of Stamford, 255.

—— v. Stoke-upon-Trent, 114.

Reid v. Dreaper, 295.

—— v. Hoskins, 397, 463, 46.4.

—— v. Teakle, 243.

Reilly v. Jones, 583.

Reimers v. Druce, 75,

Reindel v. Schell, 579, 583.

Reis v. Scottish Equitable Ass. Co.,
201.

Remon v, Hayward, 73.

Renaux v. Teakle, 243.

Reniger v. Fogossa, 469.

Reuss v. Picksley, 107, 143, 150.

Reuter v. Electric Telegraph Co., 253,
264.

Rew v. Pettet, 540.

Rex v. Dodderhill, 443.

—— v. Flintan, 245.

—— v. Haughley, 251.

—— v. Northwingfield, 399, 405.

—— v. Southerton, 206.

Reynell v, Sprye, 188, 191, 386, 408.

Reynolds v. Beerling, 547.

—— »v. Bridge, 579, 582, 583, 584.

—— v. Davies, 340, 450.

—— v. Fenton, 75.

--—v. Wheeler, 43. .

Rhodes v. Rhodes, 584.

—— v.Smethurst, 526.

Ricardo v. Garcias, 514.

Rice v. Baxendale, 571, 591.

Rich v. Jackson, 105, 176.

Richards v. feather, 213, 215.

—— v. James, 547.

—— v. Porter, 145.

—— v. Richards, 585, 632.

Richardson v. Barnes, 436.

—— v. Capes, 621.

—-— v, Chasen, 595, 600.

—— v. Dunn, 599.

—— v. Hall, 631.

—— v. Horton, 638.

—— v. Jackson, 459.

—— v. Jenkins, 87.

—— pv. Langridge, 145, 147, 113.

—— v. Mellish, 327, 329, 352, 567.

Richbell v. Alexander, 635.

Ricketts v. Bennett, 278.

—— v. Weaver, 640.

Rickford v. Ridge, 480.

Ricord v. Bettenham, 396.
xlyii

Ridd v. Moggridge, 541.
Riddle v. Grantham Canal Nav.. 92.
Ridgway v. Wharton, 98, 101, 141,
142, 143,
Ridley v. Plymouth Grinding Co.,
262, 26 L.
—— v. Ridley, 136.
Ridout v. Bristow, 106, 126.
—— v. Brough, 552.
Rigby, Zn re, 95.
Rigge v. Burbidge, 512, 589.
Right v. Darby, 421.
Riley v. Horne, 358.
Ring v. Roxbrough, 322.
Ripley v. M‘Clure, 352, 464, 465,
590.
Rippinghall v. Lloyd, 339, 356, 358,
365, 422.
Risbourg v: Bruckner, 296.
Ritchie v. Atkinson, 36, 348.
—— v. Smith, 401.
Rivers v. Griffiths, 453.
Roach ». Wadham, 626.
Roberts v. Barker, 116.
v. Berry, 447.
v. Brett, 344, 345, 444.
v. Davey, 423.
v. Hardy, 396.
— v. Smith, 9, 335.
v. Snell, 627.
v. Tucker, 136, 137, 141.
v. Watkins, 337.
v. Wyatt, 422.
Robertson v. Jackson, 117.
— v. Struth, 75.
Robins v. May, 335.
Robiuson’s case, 96, 523.
Robinson v. Cook, 458.
v. Gleadow, 297.
v. Great Western Ry. Co., 103.
v. Hardman, 596.
». Harman, 565.
—— v. Hawksford, 480.
v
0.
v

 

 

 

 

 

 

 

 

 

 

. Judkins, 225.
v. Page, 417.

. Read,:477, 478.
vo. Rudkins, 119.
—— v. Rutter, 305.
—— v. Stone, 641.
—— v. Touray, 432.

 

 

—-— 2, Vale, 563.

—— v. Lord Vernon, 504.
v. Ward, 458.

Robson v. Drummond, 303.

—— v. Eaton, 489.

—— v. Luscombe, 193.

—— v. Oliver, 479.

Rochester (Dean of) v. Pierce, 256.
Roden v. Ryde, 119.

Rodgers v. Maw, 44, 47, 51.

 

TABLE OF CASES.

Rodgers v. Nowill, 565.

Rodham v. Morley, 522.

Rodick v. Gandell, 603.

Rodwell v. Phillips, 133, 134.

Roe v. Doe, 421.

——v. Hayley, 620.

Roffey v. Greenwell, 585.

Rogers v. Hadley, 103, 108.

—— v. Humphreys, 626, 627.

—— v. Langford, 61, 479.

—— v. Spence, 645, 646.

Rogerson v. Ladbroke, 547.

Roles v. Rosewell, 577.

Rolfe v. Flower, 611.

—— v. Peterson, 582.

Rolin v. Steward, 568.

Rolt v. Cozens, 325, 346.

—— v. Watson, 480.

Rondeau v. Wyatt, 139, 142, 147.

Roots y. Lord Dormer, 140.

Roper v. Bartholomew, 580.

—— v. Holland, 73.

—— v. Lendon, 517, 519.

Roscorla v. Thomas, 314, 315.

Rose v. Bowler, 240.

—— v. Clarke, 603.

—— v. Cuninghame, 142.

—— v. Hart, 554.

—— v. Poulton, 80, 85.

—— v. Savory, 71, 72.

—— v. Sims, 554.

Rosewarne v. Billing, 402.

Ross, Ex p., 580.

Ross v. Thwaite, 114.

Rosseter v. Cahlman, 393.

Routh v. Macmillan, 271, 342.

—— v. Thompson, 269.

Routledge v. Burrell, 101.

—— v. Grant, 14, 21,

Row v. Dawson, 602, 603.

Rowley v. Rowley, 399.

Rowntree v. Jacob, 485, 498.

Royal British Bank v. Turquand,
262.

Ruddock’s case, 502.

Rudge v. Birch, 553, 607.

Rugg v. Minett, 365.

Rumsey v. North-Eastern Ry. Co.
30.

Rusby v. Scarlett, 283.

Russel v. Russel, 132.

Russell v. Viscount Bandiera, 337,
367, 420.

—— v. Bangley, 490.

—— v. Bell, 29, 555.

—— v. Niemann, 366.

—— v. Pellegrini, 518.

—— v. Smyth, 7-4.

—— v. Thornton, 13.

Rutland’s case (Countess of), 88, 103,

?
TABLE OF CASES.

Ryall v. Rowles, 604, 605.
Ryalls v. Bramall, 637.
Ryan v. Sams, 243.

Sacheverell v. Froggatt, 620, 626.

Saddler v. Leigh, 304.

—— v. Robins, 74.

Sainsbury v. Matthews, 133.

St. Saviour’s Southwark v. Smith, 629.

Sainter v. Ferguson, 388, 390, 578,
579, 584.

Sandars v. St. Neots Union, 25-4.

Sanders v. Coward, 84, 522, 527.

v. Rodway, 399.

v. Vanzeller, 613.

Sanderson v. Bell, 489.

—— v, Symonds, 427, 428.

Sandilands v. Marsh, 280.

Sandrey v. Michell, 615.

Sands v. Clarke, 351.

Sansom v. Rhodes, 443.

Sapsford v. Fletcher, 44.

Sard v. Rhodes, 467, 477.

Sargent v. Morris, 296.

Sarl v. Bourdillon, 141, 144, 147.

Saunders v. Topp, 155.

—— v. Wakefield, 145.

Saunderson v. Griffiths, 270.

—— v. Jackson, 141, 149.

—— v. Piper, 174.

Savin v. Hoylake Ry. Co., 412.

Sawtell v. Loudon, 432.

Saxon Life Assurance Soc., Re, 178.

Saxty v. Wilkin, 482.

Scadding v. Eyles, 72.

Scarpellini v. Atcheson, 632, 633.

Schmaling v. Tomlinson, 16.

Schmalz v. Avery, 306.

Schneider v. Heath, 184, 186.

—— v. Norris, 75, 141, 149.

Schofield v. Corbett, 552.

Scholey v. Mearns, 606.

—— v. Walton, 475, 538.

Schondler v. Wace, 648.

Scorell v. Boxall, 134.

Scotson v. Pegg, 321.

Scott v. Avery, 517, 519.

—— v. Corporation of Liverpool, 336,
517, 519, 520.

—— v. Eastern Counties Ry. Co.,
138, 160.

—— v. Gillmore, 393, 410.

—— v. Godwin, 216.

—— ». Hanson, 183.

—— v. Irving, 272, 491.

v. Littledale, 169, 438.

—— v. Miller, 67.

—— v. Pilkington, 74, 75.

—— v. Porcher, 603, 610.

—— v. Scott, 192.

 

 

 

 

xlix

Scott v. Lord Seymour, 513.

—— v. Surman, 62, 274.

—— v. Uxbridge & Rickmansworth
Ry. Co., 459.

Scottish N. KE. Ry. Co. v. Stewart, 258.

Seaborne v. Maddy, 28.

Seager v. Aston, 530.

Seago v. Dean, 72, 167.

Seagrave v. Union Marine Ins. Co.,
380.

Searles v. Sadgrove, 458.

Seaton v. Benedict, 243, 2.47.

Seddon v. Tutop, 513.

Seeger v. Duthie, 342, 548.

Selby v. Selby, 148.

Seligmann »v. Le Boutillier, 518.

Sellick ». Trevor, 439.

Sells v. Sells, 170,

Selway v. Fogg, 29, 30, 31, 52, 193.

Semenza v. Brinsley, 3038.

Semple v. Pink, 324.

Sentance v. Poole, 247.

Serle v. Waterworth, 126.

Seton v. Slade, 447, 575, 581.

Sewell v. Evans, 119.

—— v. Raby, 609.

Shackell v. Rosier, 44, 322, 383, 385,
409.

Shadwell v. Shadwell, 130, 321.

Shand v. Sanderson, 614.

Shapland v. Smith, 439.

Sharland v. Leifchild, 439.

Sharp v. Waterhouse, 615, 622.

Sharpe v. Gibbs, 508.

Shattock v. Shattock, 238, 239.

Shaw v. Holland, 590.

—— v. Jakeman, 429.

—— v. Marquis of Worcester, 580.

—— v. Picton, 67, 492.

—— v. Thackray, 249, 250.

—— v. Woodcock, 53.

Shears v. Jacob, 260.

Sheffield Canal Co. v. Sheffield and
Rotherham Ry. Co., 23.

Sheldon v. Cox, 37.

Shelton v. Livius, 102, 134.

Shepeler v. Durant, 397.

Shepherd v. Hills, 75, 97, 528.

—— v. Keatley, 439.

—-—- v. Mackoul, 246.

Sherrington v. Yates, 634, 635.

Sherry v. Oke, 595.

Shrewsbury & Birmingham Ry. Co. r.
London & N. W. Ry. Co., 258.

Shield v. Wilkins, 361.

Shipton ve. Casson, 33.

Shirley v. Davis, 170.

—— v. Stratton, 185.

Shirreff v. Wilks, 283.

| Shore v, Wilson, 119.

d
i TABLE Of CASES.

Shoreditch (Vestry of) v. Hughes, 423.

Short v. Kalloway, 599, 600.

—— v. M‘Carthy, 528, 542.

v. Simpson, 614.

—— v. Spackman, 289, 292.

—— v. Stone, 352, 461.

Shortrede v. Cheek, 120.

Shrewsbury v. Blount, 187.

Shrewsbury (Earl) v. North Stafford-
shire Ry. Co., 259, 264.

Shubrick v. Salmond, 362.

Sibley v. Fisher, 433.

Siboni v. Kirkman, 365, 642.

Sibree v. Tripp, 474, 475, 478.

Sicklemore v. Thistleton, 338, 340.

Siddall v. Raweliffe, 512.

Sidwell v. Mason, 534.

Sievewright v. Archibald, 15, 141,
142, 146, 151, 275, 276.

Siffkin v. Walker, 298.

Siggers v. Hvans, 81.

—— v. Lewis, 44].

Sikes v. Wild, 596.

Silk v. Osborn, 651.

Sillem v. Thornton, 202.

Sills v. Laing, 46.

Simmonds v. Swaine, 355, 371.

Simmons v. Heseltine, 439.

Simon v. Lloyd, 478.

—— v. Motivos, 139.

Simons v. Johnson, 500.

v. Patchett, 307, 565, 596.

Simpson v. Clayton, 620.

—— v. Eggington, 488.

—— v. Fogo, 75.

—— v. Lamb, 34, 386.

—— v. Margitson, 118, 446, 447.

—— »v. Penton, 126.

——v. Westminster Palace Hotel Co.,
260.

Sims v. Bond, 301.

v. Brittain, 301.

—— v. Brutton, 489, 539.

Simson v. Ingham, 491, 493, 494, 496.

Sinclair v. Bowles, 35, 598.

Singleton v. Barrett, 70.

Skaife v. Jackson, 483.

Skeate v. Beale, 54, 206, 207, 312, 330.

Skingley, Re, 363.

Skinner v. Stocks, 300.

Slack v. Lowell, 585.

Slade’s case, 39.

Slark v. Highgate Archway Co., 252.

Sleigh v. Sleigh, 26, 43, 46,

Shm v. Croucher, 188.

Slingsby’s case, 217, 219.

Slipper ». Stidstone, 551.

Sloman v. Walter, 575.

Sloper v. Cottrell, 634.

Smart v. Chell, 313, 319, 326.

 

 

 

 

Smart v. Harding, 131.

v. Nokes, 476.

—— v. Sandars, 274, 286, 287, 288.
Smeed v. Foord, 572, 592.
Smethurst v. Mitchell, 299.

—-— vv. Taylor, 273.

Smith v, Abbot, 334.

v. Algar, 325.

—— v. Bank of Scotland, 203, 204.
—— v. Battams, 485.

—— v. Bickmore, 65.

—— v. Birmingham Gas Co., 255.
—— v. Braine, 311.

—— v. Bromley, 54, 67, 408.

—— », Cartwright, 255.

—— v. Compton, 597.

. Cul, 45, 54, 67, 405, 409.

. Dickenson, 579.

. Ferrand, 477, 478.

. Goldsworthy, 225.

v. Harrison, 185.

—— v. Hodson, 555.

—— v. Mawhood, 376, 394.

——- v. Mercer, 60.

—— v. Monteith, 206, 208, 326, 328,

 

 

eeee

 

—— v. Neale, 137, 150.

—— v. Nicholls, 74, 93.

—— v. Nicolls, 509, 513, 514.
—— v. Nightingale, 610.

—— v. Page, 72, 319, 476.
——, Plomer, 235,

—— v. Pococke, 530.

—— v. Reese River Co , 188.
—— v. Sieveking, 613.

—— v, Howell, 600.

—— v. Hudson, 155, 163.
—— v. Hull Glass Co., 262, 264.
—— v. Jameson, 486.

—— v. Jeffryes, 104, 123, 179.
—— v. Jones, 39.

—— v. Kendall, 441.

—— v. Lindo, 42, 272, 394.
—— v. Lovell, 470.

. Manners, 455.

—— v. Mapleback, 504.

—— v. Sleap, 54.

—— v. Smith, 604.

—— v. Stafford, 631.

v. Surman, 133, 134, 188, 146,

 

 

v. Thomas, 565.

*, Thompson, 120, 122.
——v. Thorne, 534.

—— v. Trowsdale, 418.

—— v. Vertue, 334.

—— v. Walton, 105.

—— v. White, 400, 401.

—-- v, Wilson, 111, 117, 351.
—-- v. Woodfine, 566.
Mss fs

TABLE OF CASES. li

Smout v. Ilbery, 22, 288, 307, 308.

Smurthwaite v. Wilkins, 614.

Smyth v. Anderson, 295, 299.

Snelling v. Lord Huntingfield, 135.

Snook v. Mattock, 92.

Snow »v. Franklyn, 418.

Snowdon v. Davis, 54, 56.

Solly v. Forbes, 501.

v. Rathbone, 286.

Solvency Mutual Guarantee Co. ».
Freeman, 180.

Somerset v. Cox, 604.

Sorsbie v. Park, 219.

Souch v. Strawbridge, 136, 166.

Souter v. Drake, 439.

South, Ex p., 603.

South Carolina Bank v. Case, 281.

South Staffordshire Ry. Co. v. Burn-
side, 334, 560.

South Wales Ry. Co. v. Wythes, 518.

South Yorkshire Ry. Co. v. Great
Northern Ry. Co., 258.

Southampton (Lord) v. Brown, 223.

Southby v. Wiseman, 283.

Soward v. Palmer, 479.

Sowdon v. Mills, 567.

Sowerby v. Butcher, 293.

Sparenburgh v. Bannatyne, 396.

Spark v. Heslop, 600.

Sparrow »v. Paris, 579, 581.

Spartali v. Benecke, 110, 112, 113.

Spence v. Chodwick, 368.

Spencer’s case, 615, 617, 618, 619,
620, 624, 625, 629.

Spencer v. Demett, 556.

v. Parry, 41, 46.

Spering v. Spering, 399.

Spicer v. Burgess, 432.

v. Cooper, 117.

Spiller v. Westlake, 346.

Spittle v. Lavender, 291, 296.

Splidt v. Bowles, 624.

—— v. Heath, 368.

Spong v. Wright, 533, 534.

Spragg v. Hammond, 56.

Spry v. Emperor, 50.

Sprye v. Porter, 385, 647.

Spybey v. Hide, 453.

Stackhouse v. Barnston, 530.

Stackwood v. Dunn, 550.

Stadhard v. Lee, 335.

Stafford (Mayor of) v. Till, 256.

Stagg v. Elliott, 294.

Standen v, Chrismas, 617.

Standish v. Ross, 58, 67.

Stanger v. Miller, 555.

Stanley v. Chester and Birkenhead
Ry. Co., 264.

—— v. Jones, 385.

Stanton v. Collier, 646.

 

 

 

 

Stanton v. Styles, 512.

—— v. Tattersall, 440.

Stapleton v. Stapleton, 332.

Starey v. Barns, 558.

Startup v. Cortazzi, 590.

v. Macdonald, 435, 441, 442,
443, 448, 451, 456.

Staunton v. Wood, 444.

Stavers v. Curlinz, 344, 348, 349,
350.

Stead v. Dawber, 416.

v. Poyer, 466.

v. Salt, 280.

Steele v. Haddock, 180.

—— v. Harmer, 499.

—— v. Williams, 57.

Steer, In re, 8.

Steinman v. Magnus, 319, 474.

Stephens, Ex p., 545.

v, Reynolds, 280, 281.

—— v. Wilkinson, 590.

Sterne v. Beck, 580.

Stevens v. Austen, 439.

—— v. Bagwell, 385.

—— v. Benning, 602.

v. Webb, 371.

Stevenson v. Lambard, 618, 628.

Stewart v. Aberdein, 272, 490, 491.

—— »v, Aston, 195.

—— v. Cauty, 589.

Stilk v. Myrick, 321.

Stindt v. Roberts, 613.

Stirling v. Maitland, 462.

Stockbridge v. Sussams, 547.

Stockdale v. Dunlop, 14, 163.

Stoessiger v. South-Hastern Ry. Co.,
211,

Stokes v. Cox, 202.

v. Lewis, 29.

—— v. Moore, 148, 149.

—— v. Russell, 630.

Stone v. Bale, 78.

—— v. Godfrey, 178.

—— v. Marsh, 49, 51.

—— v. Rogers, 36.

Stones v. Dowler, 101.

Storer v. Gordon, 368.

Stourton v. Meers, 448.

Stoveld v. Eade, 493.

Stowell v. Robinson, 415.

Stracey v. Deey, 303.

Straton v. Rastall, 60, 484.

Stray v. Russell, 64, 272, 371.

Streatfield v. Halliday, 217.

Street v. Blay, 50, 63, 198, 199, 121,
438, 589, 593.

—-— v. Rigby, 518.

Streeter v. Horlock, 36.

Stretton v. Busnach, 236.

Strickland v. Turner, 176, 361.

 

 

 

 

 

 
lit TABLE OF CASES.

Strong v. Hart, 477.

—— v. Harvey, 459.

Strutt v. Smith, 30.

Stubbin v. Heintz, 283.

Studholne v. Mandell, 370, 373.

Sturdy v. Arnaud, 475.

Sturgeon v. Wingfield, 623.

Sturtevant v. Ford, 612.

Styles v. Wardle, 446.

Sully v. Frean, 195.

Summers v. Solomon, 267, 283.

Sunderland Marine Ins. Co. v. Kear-
ney, 225.

Sutton v. Morgan, 585.

—— v. Page, 475.

—— v. Tatham, 272.

Swain v. Morland, 51.

—— v. Shepherd, 296.

Swainsland v. Dearsley, 170, 171.

Swan, Lv p., 80, 288.

Swan v. North British Australasian
Co., 80.

—— v. Steele, 280.

Swatman v. Ambler, 85.

Sweet v. Lee, 135, 150, 166.

Sweeting v. Halse, 414.

—— v. Pearce, 271, 272, 490, 491.

Sweetland v. Smith, 595.

Swinyard v. Bowes, 480.

Syers v. Jonas, 112.

Sykes v. Dixon, 144.

v. Giles, 490.

Symonds v. Atkinson, 50, 52.

 

Talbot v. Hodson, 77.

Tallis v. Tallis, 388, 390.

Tamvaco v. Simpson, 53.

Tanner v. Christian, 290.

— v. Smart, 532, 533, 534, 541.

—— v. Smith, 422.

Tappenden v. Randall, 64, 377, 407,
584,

Tarleton v. Allhusen, 481.

—— v. Shingler, 432.

Tarrabochia v. Hickie, 342.

Tasker v. Shepherd, 289, 365, 643.

Tate v. Hilbert, 331.

—— v. Williamson, 186.

Tatem v. Chaplin, 621.

Tatlock v. Harris, 608, 609, 611.

Taw v. Bury, 78.

Taylor, Bx p., 229,

Taylor v. Aston, 188.

—— v. Brewer, 9, 335.

—— v. Bullen, 186.

—— v. Caldwell, 362, 36-4, 365, 366.

—— v. Crowland Gas Co., 395.

—— v. Dulwich Hospital, 257.

—— v. Great Indian Peninsular Ry.
Co., 80.

 

Taylor v. Great Northern Ry. Co., 358,
443,

—— v. Hare, 64.

—— v. Higgins, 47.

—— v. Hilary, 127, 414.

—— v. Holt, 588.

—— v. Laird, 28.

—— v. Lendey, 62, 65.

—— v. Manners, 499.

—— v. Shum, 629.

—— v. Stray, 272.

—— v. Wakefield, 157.

—— v. Zamira, 44.

Teal v. Auty, 69, 134, 165.

Teede v. Johnson, 180, 500.

Tegetmeyer v. Lumley, 552.

Tempest v. Fitzgerald, 156, 159.

—— v. Kilner, 132, 138, 590.

Tenant v. Elliott, 66, 406.

Terry v. Duntze, 419.

Thame v. Boast, 472.

Thames Haven Dock Co. v. Hall, 255.

Thames Ironworks Co. 0. Royal Mail
Co., 420.

Thimbleby v. Barron, 505.

Thistlewood, Ex p., 558.

Thistlewood v. Cracroft, 66, 406.

Thomas v. Blackman, 13.

—— v, Cadwallader, 343, 349.

—— v. Cook, 129.

—— v. Evans, 456.

—— v. Fredricks, 518.

—— v. Hawkes, 71.

—— v. Heathorn, 478.

—— v. Shillibeer, 611.

v, Thomas, 323.

—— v. Williams, 127, 128, 164.

Thompson v. Brown, 420.

—— v. Charnock, 517.

v. Davenport, 295.

—— v. Dominy, 601, 613.

—— v. Hakewill, 220, 618, 628.

—— v. Hudson, 580.

—— v, Lack, 501.

—— v. Leach, 80.

—— v. Percival, 468, 611.

Thomson v. Davenport, 297, 299, 300.

—— v. Redman, 548.

Thornborough v. Whitaker, 369.

Thornbury v. Bevill, 17, 21.

Thorne v. Smith, 476, 487.

Thornett v. Haines, 49.

Thornton v. Charles, 142, 276.

—— v. Jenyns, 314.

—— v. Kempster, 15, 276.

Thorpe v. Coombe, 528.

—— v. Thorpe, 62, 326, 549.

Thunder v, Belcher, 627.

Thurman v. Wild, 470.

Thurnell v. Balbirnic, 336.

 

 
TABLE OF CASES.. lai

Thursby v. Plant, 618, 629.

Thurston v. Mills, 51.

Tibbits v. George, 603, 604.

Tidey v. Mollett, 343.

Tidmarsh v. Grover, 427.

Timmins v. Gibbins, 61, 67.

Timmis v. Platt, 641.

Timson v. Ramsbottom, 604.

Tinckler v. Prentice, 442, 449.

Tindal, Ex p., 644.

Tippets v. Heane, 537.

Tobacco Pipe Makers’ Co. v. Loder,
96, 523.

Todd v. Emly, 278.

—— v, Kerrich, 422, 444.

—— v. Maxfield, 556.

—— v. Reid, 490.

—— v. Stewart, 98, 512.

Toker v. Toker, 330.

Tomkinson v. Staight, 153.

Tomlinson v. Bentall, 27.

Toms v. Wilson, 444.

Tooley v. Windham, 327.

Topham v. Braddick, 338.

—— v. Morecraft, 73, 126.

v. Duke of Portland, 398.

Toppin v. Field, 561.

—— v. Lomas, 132.

Topping, Ex p., 535, 538.

Totterdell v. Fareham Blue Brick Co.,
262.

Toussaint v. Martinnant, 42.

Towers v. Osborne, 137.

Townsend v. Crowdy, 57, 59.

Townshend (Marquis) v. Stangroom,
171.

Traherne v. Gardner, 57.

Traill v. Baring, 183, 188.

Tredwen v. Bourne, 278.

—— v. Holman, 519.

Tremeere v. Morison, 625.

Trew v. Burton, 427.

Trier v. Bridgman, 612.

Trower v. Newcombe, 183.

Trueman v. Hurst, 71, 234.

—— v. Loder, 103, 110, 119, 272,
287, 298.

Tucker v. Barrow, 68, 69.

Tuckey v. Hawkins, 84, 527.

Tufnell v. Constable, 331, 370, 499.

Tulk v. Moxhay, 616.

Tullett v. Armstrong, 238°

Tupper v. Foulkes, 76, 78.

Turner, In re, 95.

v. Collins, 474,

—— v. Harvey, 185.

—— v. Hayden, 441, 450, 4£0.

—— v. Reynall, 394,

—— v. Rookes, 246.

—— v. Stones, 61, 479.

 

 

 

Turner v, Trisby, 233.

—— v. Vaughan, 400.

Turney v. Dodwell, 538.
Turpin v. Chambers, 422.
Tweddle v. Atkinson, 222 312.
Twopenny v. Young, 508.
Twynam v. Pickard, 627.

Tye v. Fynmore, 17, 104.
Tyler v. Bland, 458.

Tynan v, Bridges, 498.

Udell v. Atherton, 184, 192.

Uhde v. Walters, 117.

Underhill v. Devereux, 96.

Underwood v. Nicholls, 490.

Union Bank of Manchester v. Becch,
501.

Unity Joint Stock Banking Ass., Hx
p, 227.

Usparicha v. Noble, 395.

Utterson v. Vernon, 562, 563.

Unwin v. Leaper, 54, 408.

Valente v. Gibbs, 445.

Valpy v. Manley, 538, 56.

—— v. Oakley, 476, 590, 591.
—— v. Sanders, 49.

Vancouver v. Bliss, 439.
Vandenbergh v. Spooner, 144.
Vanquelin v. Bouard, 75.

Van Sandau v. Corsbie, 563.
Vansittart v. Vansittart, 239.
Van Toll v. South-Eastern Ry. Co., 8.
Van Wart v. Woolley, 480.
Varney v. Hickman, 65.
Vaughan v. Hancock, 131.
—— v. Vanderstegen, 238, 239.
Verev. Ashby, 269, 279, 282.
Vernon v. Keys, 182.

——»v, Smith, 619, 620, 621.
Vice v. Fleming, 278.

Victors v. Davies, 26.

| Vigers v. Pike, 190, 194.

Vine v. Mitchell, 184.

Violett v. Sympson, 529.
Vlierboom v. Chapman, 36.
Vooght v. Winch, 98, 510.
Vorley v. Barrett, 180.

Vyse v. Wakefield, 339, 356, 357.
Vynior’s case, 286.

Vyvyan v, Arthur, 621.

Wade's case, 441, 442, 456, 457.
Wade v. Simeon, 328.
Waddington v. Bristow, 133.

v. Oliver, 437.

Wadham v. Marlow, 629.

Wain v. Bailey, 434.

v. Warlters, 148, 144, 145.
Wainman v. Kynman, 537.

 

 
liv TABLE OF CASES.

Wait v. Baker, 296.

Waite v. Jones, 409.

Waithman v. Wakefield, 247.

Wake v. Harrop, 106, 119, 181, 291,
294,

—— v. Tinkler, 553, 607.

Wakefield v. Newbon, 54.

Walcot v. Goulding, 577.

Walker’s case, 629.

Walker v. Barnes, 585.

—— v. Butler, 537, 540.

v. Chapman, 65.

—— v. Clements, 550.

—— v. Constable, 132, 151, 584.

—— v. Hatton, 599, 600.

—— v. Moore, 596.

—— v. Nevill, 500, 506.

— v. Nussey, 161.

v. Perkins, 399.

—— v. Rostron, 610.

—— v. Witter, 74.

Wallace v. Kelsall, 470, 486.

Waller v. Lacy, 496, 533, 534.

Wallis v. Day, 389.

— »v. Littell, 109.

Walmesley v. Cooper, 504.

Walsh v. Fussell, 621.

v. Whitcomb, 287.

Walstab v. Spottiswoode, 61.

Walter v. Cubley, 427, 432.

Walton v. Hastings, 432.

—— v. Mascall, 337, 338.

—— v. Waterhouse, 362.

Warburg v. Tucker, 561.

Ward v. Byrne, 388, 389.

—— v. Day, 355.

v. Evans, 268, 283, 490.

—— v. Londesborough, 61.

—— (Lord) v. Lumley, 429.

Warden v. Jones, 131.

Waring v. Favenck, 300.

Warlow »v. Harrison, 20.

Warner v. M‘Kay, 304.

v. White, 373.

—— v. Willington, 101, 142, 144,
147, 150.

Warre v. Calvert, 567.

Warrington v. Larly, 426,

—— v. Furbor, 338.

Warwick v. Bruce, 134, 231.

-—— v. Slade, 153.

Warwicke v. Noakes, 482, 483.

Waterhouse v. Keen, 57.

—— v. Skinner, 317.

Waters v. Earl of Thanet, 529, 534,
541.

--— v. Tompkins, 492, 537.

Watkins ». Maule, 642.

Watson v. Karl Charlemont, 61.

—— v. King, 288.

 

 

 

 

 

 

Watson v. Pears, 446.

v. Spratley, 132.

—— v. Swann, 269.

Watters v. Smith, 487.

Watts v. Friend, 138.

—— v. Porter, 604.

Waugh v. Bussell, 427.

—— v. Carver, 277.

—— v. Cope, 495, 537.

Way v. Hearne, 120, 174, 190, 203.

Wayman». Hilliard, 69.

Waymell v. Reed, 401.

Weatherall v. Geering, 602.

Weatherby v. St. Giorgio, 486.

Webb »v. Brook, 396.

—— v. Fairmaner, 446.

—— v. Plummer, 115, 116.

—— v. Russell, 615, 618, 626, 627.

—— v. Spicer, 105, 504, 505.

Webber v. Maddocks, 432.

—— v. Stanley, 119.

Webster v. Seckamp, 267.

—— v. Webster, 131, 399, 604.

Wedlake v. Hurley, 610.

Weeks v. Maillardet, 79, 433.

Wegener v. Smith, 613.

Welby v. Drake, 474.

Weld v. Baxter, 624.

Welford v. Beazely, 142, 149.

Welland Ry. Co. v. Blake, 75, 523.

Weller v. Baker, 241.

Wells v. Forster, 381.

v. Girling, 403.

—w— v. Hopkins, 438, 594.

v. Horton, 136.

—— v. Malbon, 237, 635.

—— v. Maxwell, 447.

—— v. Wells, 326.

—— v. Williams, 395, 397.

Wennall v. Adney, 316, 318.

Wentworth v. Bullen, 90.

v. Chevill, 96, 334, 522.

—— v. Cock, 612, 643, 644.

—— v. Tubb, 248.

Werner v. Humphreys, 22, 643.

West v. Blakeway, 418, 419.

Western v. M‘Dermot, 616, 621.

Westhead v. Sproson, 25.

Westlake v. Adams, 64, 312.

Weston v. Collins, 343.

—— v. Downes, 198, 438, 593.

Westropp v. Solomon, 25, 41, 60.

Wetherell v. Jones, 376, 405.

—— v. Julius, 646, 647.

—— 1. Langston, 80, 81, 215, 216,
601.

Wharton ». Mackenzie, 233, 234.

—— v. Walker, 609, 610.

Whatman v. Gibson, 616.

Wohceateroft r. Tickman, 278.

 

 

 

 
TABLE OF CASES. lv

Wheatley v. Slade, 171.
—— v. Williams, 69, 70.
Wheeler v. Collier, 144.

Wheelton v. Hardisty, 192, 200, 201,

202.

Whelpdale’s case, 209, 213.

Whistler v. Forster, 605, 612, 642.

Whitcher v. Hall, 221.

Whitcomb v. Whiting, 487, 543.

White v. Beeton, 350.

—— v. Bluett, 327.

—— v. Carmarthen & Cardigan Ry.
Co., 259.

—— v. Corbett, 334, 561.

—— v. Cuyler, 265, 285, 290, 508.

—— v. Garden, 196.

—— v. Proctor, 151, 152.

—— v. Woodward, 314,

Whitehead v. Howard, 542.

—— v. Tattersall, 516.

—— v. Tuckett, 271, 272, 273.

—— v. Walker, 528.

Whitelock v, Musgrove, 119.

Whitham (In the goods of), 636.

Whitlock’s case, 626.

Whitlock v. Underwood, 443.

Whitmore v. Gilmour, 649, 651.

Whittaker v. Howe, 391.

Whyman v. Garth, 107.

Wickham v. Harding, 518.

Widders v. Gorton, 481.

Wigg v. Shuttleworth, 411.

Wigglesworth v. Dallison, 115.

Wilcox v. Storkey, 516.

Wild v. Williams, 504.

Wilde v. Clarkson, 83, 472, 567, 577,
580, 586.

—— »v. Fort, 448,

—— v. Gibson, 187, 188.

—— v. Waters, 133.

Wilkinson v. Byers, 319, 320, 326,
475.

—— v. Candlish, 489.

—— v. Evans, 141, 147.

—— v. Gaston, 446.

—— v. Godefroy, 62.

—— v. Johnson, 60, 430.

— — v. Lindo, 500, 502.

—— v. Lloyd, 371.

Wilks v. Atkinson, 138, 139.

—— v. Back, 285, 290.

Willatts v. Kennedy, 324.

Willes v. Greenhill, 604.

Williams v. Bosanquet, 625, 627, 628.

—— v. Burgess, 160.

—— v. Burrell, 596, 626.

—— v. Carwardine, 13.

—— v, Chambers, 651.

—— v, Evans, 490.

—— v. Everett, 610.

 

Williams v. Flight, 548.

—— v. Griffiths, 495, 532, 533, 539,
540.

—— v. Harding, 96.

—— v. Hayward, 623.

—— v. Hedley, 54, 65, 67, 408.

‘—— Jones, 73, 91, 104, 135, 395, 405,

443,
—— v. Lake, 144.
v. Leper, 128.
—— v. Lloyd, 358, 365.
—— v. Millington, 305, 490.
—— v. Moor, 229.
—-— v. Protheroe, 387.
—— v. Rawlinson, 492, 495.
—— v. Reynolds, 591.
—— v. Smith, 544.
—— v. Walsby, 486.
—— v. Wheeler, 162.
—— v. Williams, 18.
Williamson v. Barton, 289, 296.
—— v. Clements, 323.
—— v. Dawes, 236.
—— v. Henley, 385.
-—— v. Naylor, 530.
—— v. Watts, 234.
Willins v. Smith, 544.
Wills v. Baldwin, 402.
—— v. De Castro, 501, 505.
—— v. Dyson, 278.
—— v. Newham, 537.
—— v. Peckham, 320.
Willison v. Patteson, 395, 396, 397.
Willson v. Smyth, 245.
‘Wilmot v. Coventry, 257.
—— v. Smith, 489.
v. Wilkinson, 439.
Wilson v. Coupland, 609.
—— v. Hart, 617, 619.
—— v. Kearse, 229.
—-- v. Lancashire and Yorkshire Ry.
Co., 571.
—— v. Mushett, 399.
—— v. Nelson, 582.
——v. Ray, 56, 66, 405, 406.
—— v. Short, 386.
—— v. Tumman, 268, 269.
—— v. West Hartlepool Ry. Co., 257.
—— v. Wilson, 70, 71, 173, 399.
—— v. Zulueta, 296.
Wiltshire v. Sims, 272.
Winch v. Keeley, 605, 607, 649.
Windsor’s case (Dean of), 619.
Wing v. Mill, 27.
Winne v. Bampton, 257.
Winter v. Brockwell, 134.
v. Trimmer, 574.
Wintle v. Crowther, 283.
Withers v. Bircham, 642.
—— v. Reynolds, 347.

 

 

 
lvi TABLE OF CASES.

Withington v. Herring, 270.

Wittersheim v. Lady Carlisle, 528.

Wolff v. Koppell, 127.

—— v. Oxholm, 412.

Wollaston v. Hakewill, 625, 628.

Wontner v. Shairp, 15.

Wood v. Barker, 404.

—— v. Benson, 126.

—— v. Copper Miners’ Co., 517.

—— v. Dwarris, 201.

—— v. Leadbitter, 134, 135.

—— v. Manley, 135.

—— v. Medgley, 99.

v. Scarth, 171.

—— v. Smith, 552.

Woodbridge v. Spooner, 105.

Woodhouse v. Shipley, 398.

Woodland v. Fear, 60, 61.

Woodman v. Chapman, 633.

Woodward v. Gyles, 578, 582.

Woollam v. Hearn, 176.

Woolley v. Smith, 562, 563.

Wootton v. Steffenoni, 618.

Worley v. Harrison, 335.

Worsley v. Wood, 101, 336.

Worth, £x p., 192.

Worthington v. Grimsditch, 475, 493,
538.

—— v. Wigley, 481.

Wray v. Milestone, 68, 73, 469.

Wright v. Acres, 474.

 

 

Wright ». Burroughes, 627.

—— v. Chard, 239.

—— v. Dannah, 152.

—— v. Fairfield, 645, 646.

—— v. Howard, 440.

—— v, Laing, 406, 496, 497.

—— v. Leonard, 227, 235.

—— ». Stavert, 132.

Wrightup v. Chamberlain, 599.

Wyatt v. Marquis of Hertford, 484,
487.

—— v. Hodson, 487, 544.

Wyllie v. Wilkes, 575.

Wyun v. Morgan, 448.

—— v.8hropshire Union Ry.Co., 412.

Xenos v. Wickham, 78.

Yates v. Cole, 628.

—— v. Freckleton, 489.
—— v. Hall, 396.

—— v. Nash, 211.

—— v. Pym, 118.

Yeates v. Groves, 603.
Yellowby v. Gower, 626.
Yeomans v. Williams, 499.
Young v. Bank of England, 535.
—— v. Cole, 60.

—— ov. Hughes, 615.

—— v. Winter, 561.
THE LAW OF CONTRACTS.

INTRODUCTION.

Tur Legal Rights comprehended in the term Property, used
with its largest meaning as including according to the lan-
guage of the English law all real and personal estate, are
commonly divided by jurists into the two classes of Rights
to Things and Rights against Persons, or, using the more
familiar terms of the civil law, jura in ren and jura in
personam (a).

Rights to Things, jura in rem, have a material subject as Rights to
land or goods, and are exercised upon the subject by using T™ss
: . Z jurain rem.
or disposing of it according to the measure and extent of
the right. The right subsists in the owner by virtue of a
correlative negative legal duty, imposed generally upon all
persons to forbear from interfering with the owner in the
use or disposal of the subject in any manner permitted by
his right ; and the full exercise and enjoyment of the right
by the owner does not require the active intervention of any

other determinate person. An infringement of the right by

(a) Mackeldey, Lehrbuch des Ré- § 95; Austin’s Jurisprudence, 2nd
mischen Rechts, § 15; Warnkeenig, ed., Ixxvii, xcv ; 2 ib. 32; 3 ib. 189;
Commentarii Juris Romani Privati, Maine’s Ancient Law, 315.

B
Rights
against per-
sons, jura
wm per-
sonam.

Jura ad
rem.

2 INTRODUCTION.

any determinate person constitutes an injury, for which the
law provides a remedy by action (a).

Rights against a Person, jura in personam, have for their
subject an act of some certain and determinate person, as
the delivery of goods, the payment of money, the doing or
not doing of some particular thing by that person, and are
exercised by requiring him to perform the act which forms
the subject of the right. This right subsists by force of a
correlative positive legal duty imposed upon the determinate
person to act in the manner prescribed ; and the exercise
and enjoyment of the right depends immediately upon his
due performance of that duty. The right is secured by law
by means of an action given for any deviation from that per-
formance which forms the subject of the right (0).

The term jura ad rem is sometimes used with the same
meaning as the term jura in personam, and it involves a
special conception of that class of rights which requires to
be noticed. <A jus in personam, as above described, signifies
that the owner of the right is entitled to some act or per-
formance of another. Now, if the act or performance, which
is the subject of the jus in personam, consists in the delivery
of some thing to the owner of the right, the right may be
regarded as a right to acquire that thing by means of the
delivery; and upon the completion of the delivery the
owner becomes actually possessed of the thing, and is in-
vested with a jus in rem in respect of it. This inchoate
right to a thing, or right to acquire a thing by means of
the act of another person, is called a jus ad rem. It may
therefore be explained to be a jus in personam, im which the
act forming the subject of the right consists in the delivery
of a thing, viewed in regard to its ultimate result as produc-
ing a right to the thing to be delivered. The jus ad rem by
the process commonly known as a reduction into possession
results in a jus in rem (c).

(a) Mackeldey, § 208; Warnkenig, Ixxvii; 3 ib. 189; Savigny, Obliga-
§ 95; Austin’s Jur. Ixxvii, Ixxx; 3 tionenrecht, § 2.
ib. 189. (c) Warnkcenig, § 404; 3 Austin’s

(b) Mackeldey, §§ 15, 329; Warn- Jur. 191-197.
keenig, §§ 95, 404; Austin’s Jur.
INTRODUCTION. 3

The terms jus in personam and jus ad rem were not used in Obdligatio.
the ancient Roman law sources, but are of modern inven-
tion. The kind of right included in the term jus in personam
was designated in the ancient Roman law by the term obli-
gatio (a). Obligatio was defined in the ancient Roman law
as “Juris vinculum, quo necessitate adstringimur alicujus ret
solvende secundum nostree civitatis jura.’ The term obligatio
was used for all the connections of “ the chain of law’”’ bind-
ing the one person to the other. It indicated, as occasion
required, either the right of the creditor at one end of the
chain, or the correlative duty of the debtor at the other end
of the chain. It was also used to denote the source of fact
from which the legal connection arose ; and in a still nar-
rower sense it denoted the instrument or document, where
such existed, by which the connection was created, or in
which the evidence of the connection was preserved (b).

An originating cause is necessary to create a jus in per- Rightsaris-

sonam or legal obligation between two persons, and is found #5 4) ond.
in some act of the persons, or in some fact or transaction ¢ 4elicto.
affecting both, upon which the law operates by attaching the
right on the one side and the correlative duty on the other.
The originating causes of obligation have been arranged by
jurists, following the system of the Roman law, in the two
principal classes of contracts and wrongs, coutractus and
delictum. And obligations according to the Roman law,
and subsequently jura in personam, have been classified ac-
cording to their source or origin, as arising ew contractu or
quasi ew contractu, and ea delicto or quasi ev delicto (c).

A delictum or quasi delictum here included amongst the
sources of obligation consists, speaking generally, in an
infringement of some pre-existing right, and creates an
obligation by producing a right of action for the injury.

The delictum by infringing the right destroys it, at least to
the extent of the infringement, and converts it into a right
in the person injured to sue for redress from the wrong-

(a) Warnkenig, § 404; Austin’s (b) Mackeldey, § 329; Warnkenig,

Jur. lxxvii, lsiii; 2 ib. 832; 3 ib. §§ 404, 406; Maine’s Ancient Law,
186-197 : and see as to the terms jus 323, 324.

in rem and jus in re, ib.; Warnkeenig, (c) Warnkeenig, § 405; Maine’s
§ 95. Ancient Law, 328, 324.

B2
= INTRODUCTION.

doer by process of law. Rights arising ea delicto are
instituted for the purpose of securing other rights from
injury and remedying the violation of them, and for this
reason have been called sanctioning and remedial or second-
ary rights ().

The sources of obligation comprised in the terms e# con-
tractu and quasi ex contractu are original and independent
sources, having no reference to, or dependence upon, other
pre-existing rights. For this reason the rights arismg from
these sources have been classed as primary rights. The
term quasi ea contractu was used to denote various trans-
actions originating obligations which could not be included
in the term ex contractu, in consequence of the exclusively
consensual character attributed to the transactions desig-
nated as contracts in the Roman law (b). It may be noticed
that the class of rights arising ex delicto is wide enough to
include the remedial right which arises upon the infringe-
ment of a right ex contractu or breach of contract (¢).

Rights arising ew contractu and ea delicto also differ essen-
tially in the nature of the act or performance which forms
the subject of the right. The performance which forms the
subject of a right or obligation ex contractu is certain. It
is prescribed with certainty in the transaction by which the
right is created, and it is capable of an exact discharge by
the person on whom it is incumbent. On the other hand,
the subject of a right or obligation ew delicto, namely, the
measure of redress to be adjudged by law for an injury, can
only be ascertained by regular process of law, unless the
parties themselves come to an accord respecting it; and it
is not capable of being ascertained and discharged at the
mere will of the person liable. A debtor can pay or tender
the exact amount of his debt when it is due, and so dis-
charge his obligation; but a person guilty of an assault,
trespass, or breach of contract, incurs a lability to make
compensation which he cannot estimate and discharge at his
option. If an injured person declines to come to terms
respecting the exact measure of his right to redress, he can-
not be deprived of his recourse to the law. The measure of

(a) Austin’s Jur. Ixxv, lxxxix, xevili. (0) Tb. Ixxv, Ixxviii, Ixxxix. (c) Ib. ¢, ci.
INTRODUCTION. 5

the obligation is ascertained by the judgment of a court, and
then, but not before, the party subject to the obligation is in
a position to discharge his liability (a).

The classes of rights distinguished as arising ev contructu Contracts.
and ex delicto may respectively be represented in the English
law with sufficient accuracy by the expressions rights arising
from contract and rights of action. The term contract in
the English law is used with a meaning wide enough to in-
clude the sources of all the rights against the person which
have been described as primary, in contrast with those de-
scribed as secondary or remedial. It is also used, and per-
haps more accurately, to denote the legal rights themselves
which spring from those sources. In the latter sense, like
the term obligatio, it is used to indicate not only the bond of
law arising between and connecting the two parties to the
contract, but also, as occasion requires, the right on the one
side and the legal duty or liability on the other, which are
comprised in the contract.

Rights of action are produced by a wrong done by a per- Rights of
son to some pre- -existing right of another, sil consist in the ““"™
right to sue for rellnens fori the wrong-doer by regular
process of law. They correspond, for the most part, with
the obligations or jura in personam arising ew delicto, and
which have been described as secondary or remedial. Rights
of action are classified in the English law, according to the
nature of the right infringed, into those arising from breach
of contract and those arising from tort,—meaning by the
latter term an injury to some right, of property or of the
person, which has not arisen from a contract (b).

By the law of England, the subjects of property are dis- or
tributed into two kinds: things real and things personal ; Hahie of

which are subject to rules of law peculiar to each kind. Real Togtishy e

property includes, speaking generally, all the rights of pro- lw.

(a) Warnkeenig, §§ 96, 157. B, where the statement of causes of

(6) Austin’s Jur. xcix; 3 Black- action ane arranged i in two classes, as
stone’s Com. 117; aud see The Com- being “‘on contracts,” or “for wrongs
mon Law Procedure Act, 1852, sched. —inclependent of contract.”
Division of
the subject.

6 INTRODUCTION.

perty of which the subject is land; personal property in-
cludes the rights of which the subject is goods and chattels.
Personal property is further distinguished as being in posses-
ston, where a person has not only the right to but also the
actual possession of the subject of property,—or in action,
where a person has only the bare right without actual pos-
session, but may obtain the possession by an action or suit
at law, whence the term “choses in action” is applied to
that kind of property. Under this system rights arising
out of contract and rights of action, as described above, are
not property in possession, but are included in the kind of
property denoted by choses in action (a).

It is proposed to treat of the law of contracts in the fol-
lowing chapters (b) :—
Chap. I. The formation of contracts.
» II. The parties to contracts.
», LILI. The matter of contracts.
» IV. The discharge of contracts.

», WV. The damages payable upon breach of contract.
» VI. The assignment of contracts.

(a) 2 Blackstone’s Com. 16, 389, 397, 442. () And see the Table of Contents.
CHAPTER I.
THE FORMATION OF CONTRACTS.

Section I.—§ 1. Simpne Conrracts arisinc From AGREEMENT.

 

ASTOOMEND 6 si ccinanyrauemnecaaed eas 7 ABPECMENE vcshnscgnianmesaneuss vis 1l
Promise : Offer and Acceptance of Terms 12
Consideration Contracts upon Executed Consi-

Form of Simple Contracts by derations .........cceceecece ees 23

Cowrracts in the English law are generally divided into The diffe.
three kinds, distinguished by their different modes of for- aes
mation,—namely, Simple Contracts, Contracts under Seal,

and Contracts of Record. Itis proposed to treat of them

in the above order, commencing with Simple Contracts,
because the rules and principles relating to the formation of
contracts of that kind are of a less technical and more ele-
mentary character than those relating to the other kinds of
contract. :

Simple contracts may be divided into two classes, ac-
cording to the sources or causes from which they arise,—
namely, simple contracts arising from agreement, and simple
contracts arising independently of agreement, the latter of
which classes is commonly known as contracts implied in
law (a).

(a) Compare the terms ex contractu gations couventionnelles ;”’ and t. 4,
and quasi ex contractuinthecivillaw; ‘Des engagements qui se forment
see 3 Austin’s Jur. 133, 223; Maine’s sans convention.” And see post, Chap.

Ancient Law, 344; also Code Civil, I, Sect. I, § 2, “ Contracts implied in
1.3, t. 3,“ Des contrats ou des obli- law.”
Agreement.

-effect

8 CHAP. I. FORMATION OF CONTRACTS.

Agreement consists in two persons being of the same
mind concerning the matter agreed upon. The state of
mind or intention of a person, being impalpable to the
senses, can be ascertained only by means of outward expres-
sions, as words and acts. Accordingly, the law judges of
the state of mind or intention of a person by outward ex-
pressions only, and thus excludes all questions concerning
intentions unexpressed. It imputes to a person a state of
mind or intention corresponding to the rational and honest
meaning of his words and actions; and where the conduct
of a person towards another, judged by a reasonable stan-
dard, manifests an intention to agree in regard to some
matter, that intention is established in law as a fact, what-
ever may be the real but unexpressed state of his mind on
the matter (a). Agreement further imports that there
should be a mutual communication between the parties of
their intentions to agree. Consequently the law judges of
an agreement between two persons exclusively from those
expressions of their intentions which are communicated
between them; and an intention not so communicated,
though expressed by other means, as by a communication to
a third person, is immaterial to the question of agreement (0).
In judging of intention from a person’s words and conduct,
where his acts are inconsistent with his words, the former
are in general accepted asa more reliable guide to the inten-
tion than the latter; and the conduct may in some cases
determine the intention even in opposition to the words,—
according to the maxim, “non quod dictum sed quod faetum
est wspicitur”’ (c).

Agreement, as a juridical fact, has a varied and extensive
in creating, modifying, and extinguishing rights
throughout all branches of law; and in the law of contracts

it is efficacious not only in creating simple contracts, but

(a) Cornish v. Abington, 4 H.& N.
549; 28 L. J. Ex. 262; Alexander
vy. Worman, 6 H. & N. 100, 112; 30
L. J. Ex. 198, 202; Van Toll v.
South-Lastern Ry. Co,,12 C. BL N.S.
75; 31 L. J.C. P. QA ; Pothill v.
Waller, 3B. & Ad. 114; Pickard v.
Seers, 6 A. & Kt, 469; Freeman y.
Cooke, 2 Ex. 654.

(b) See Cor v. Troy, 5 B. & Ald.
474; Heinckey vy. Earle, 8 E.& B.
410; Browne v. Hare, 3 I. & N. 484,
495 ; 27 L. J. Ex. 372, 376.

(c) Co. Lit. 36a; Croft v. Lumley,
6 H. L. C. 672,722; 27 L.J.Q.B
321, 337; Zn re Steer, 3H. & N. 594;
28 L. J. Ix. 28
SECT. I. § 1, SIMPLE CONTRACTS ARISING FROM AGREEMENT. 9

also in varying and rescinding them. Agreement is also an
element in the formation of contracts under seal, though it
appears therein only through certain prescribed formalities.

In an agreement as the source of a legal contract, the
matter agreed upon must import that the one party shall be
bound to the other in some act or performance, which the
latter shall have a legal right to enforce. The signification
of an intention to do some act, or observe some particular
course of conduct, made by the one party to the other, and
accepted by him, for the purpose of creating a right to its
accomplishment is called a promise (a). The parties to a pro-
mise are respectively called the promiser and promisee,
which expressions also serve to designate the parties to a
contract founded on an agreement containing a promise.
When ax action is brought upon such a contract the pro-
misee and promiser appear respectively in the positions of
the plaintiff and the defendant, and are commonly referred
to in those characters.

Promissory expressions reserving an option as to their
performance do not constitute a promise, and are not suflfi-
cient to create a contract. Thus, where an employer engages
a servant upon the terms of paying the servant such remu-
neration as the employer shall please, the employer is not
bound in law to pay anything (b). A person, in answer to
a suitor for his daughter, wrote, ‘I shall allow her the
interest on £2000, whether she remains single or marries; if
the latter, I may bind myself to do it, and pay the principal
at my death to her and her heirs.” This was construed not
to import an intention to give a binding promise, and conse-
quently was held not to create a contract (¢). Upon the
principle that expressions not intended to be binding do not
constitute a promise, it is held that commendatory expres-
sions concerning the quality of goods made upon a negotia-

(a2) 1 Austin’s Jur. 279; Maine’s
Ancient Law, 323 ; Pothier, Obl., §§ 3,
4; Code Civil, § 1101.

(b) Taylor v. Brewer, 1 M. & 8.
290; Roberts v. Smith, 4 H. &N,
315; 28 L. J. Ex. 164; and see
Bryant v. Flight, 5 M. & W. 114;
Parker y. Thbetson, + 0. BLN. 8, 346;

27 L. J.C. P. 236.

(ec) Randall v. Morgan, 12 Ves.
67; and see similar examples in
Maunsell v. White, 4 H. L. C. 1039 ;
Money v. Jorden, 15 Beay. 872; 5 H.
L. C. 185; Morehouse v. Colvin, 15
Beay, 341.

Promise,
Considera-
tion.

Gratuitous
promises.

Executed
and execu-
tory con-
sideration.

10 CHAP, 1. FORMATION OF CONTRACTS.

tion for sale, without intending to warrant the quality, do
not create a contract of warranty ;—according to the maxim
of the civil law, simplex commendatio non obligat (a).

It is further necessary in the English law that an agree-
ment, in order to create a legal contract, should include in
the matter agreed upon, besides a promise, what is called a
consideration for the promise. The consideration may be
described generally as some matter agreed upon as a return
or equivalent for the promise made, showing that the pro-
mise is not made gratuitously. A gratuitous promise, or
one agreed upon without any consideration for it, unless
made with certain formalities to be noticed presently, is void
of legal effect (b).

The object of requiring a consideration for a promise, as a
condition of creating a legal contract by agreement, seems
to be to secure a test that the parties have the intention of
making a binding engagement, and are not using promissory
expressions without any serious intention of engaging them-
selves to a contract. The fact of bargaining and giving
an equivalent for the promise serves to show that the parties
act with deliberation, and in the expectation that the trans-
action shall be binding.

Gratuitous promises, which are excluded by this rule from
becoming contracts by mere agreement, are not altogether
prohibited by English law. They may be made legally bind-
ing by using proper formalities, prescribed with the same
view of securing deliberation and certainty, as will be seen
in treating of contracts under seal, to which the doctrine of
consideration does not apply. In the case of Pillans v.
Mierop (c) the question was raised whether mere writing
was a sufficient solemnity to create a valid contract without
a consideration, and was decided in the negative.

The consideration of a promise may be executed or execu-
tory. An executed consideration is some act performed or
some value given at the time of making the promise and in

(a) Chandelor vy. Lopus, Cro. Jac. see post, Chap. I, Sect. VI, “ Fraud.”
2; 1 Smith’s L. C. 5th edit. 160; and (4) Plowden, 308; Pillans vy. Mie-
seo Ormrod v. Huth, 14 M. & W. — rop, 3 Burr. 1670.

651; as to fraudulent representations (c) 3 Burr. 1670.
SECT. I. § 1. SIMPLE CONTRACTS ARISING FROM AGkEENENT. 11

return for the promise then made. An executory considera-
tion is a promise to do or give something in return for the
promise then made. The contract with an executory con-
sideration consists of a promise given for a promise, and
comprises two promises,—the one promise forming the con-
sideration for the other, and conversely. With respect to
such contracts it is only necessary at present to observe,
that either promise may be regarded for the time being as
the consideration for the other (a).

An agreement satisfying the above-mentioned conditions,
that is to say, containing a promise made by the one party
for a valid consideration and agreed to by the other party,
creates a contract by force of the mere agreement without
other formality. The contract so created is a simple contract.

A simple contract is not required by law to be made in Form of
any particular form or with any particular solemnities, ser
except in a few instances to be noticed presently where by agree-
writing and signature are required; but it is left open to a
proof by any facts which are admissible and sufficient to
establish the agreement according to the general rules of evi-
dence and procedure. Hence the words and acts of the
parties, which are the evidences of their agreement, consti-
tute in general the only fori in which the contract created
by the agreement appears. Some distinctions and observa-
tions, however, of a general character have been made
respecting the formation of agreements, which require here
to be noticed.

Simple contracts created by agreement are sometimes Express
distinguished, according to the manner in which the agree- per a
ment is formed, as express and implied. The only differ-
ence between an express and implied agreement is in the
mode of substantiating it. An express agreement is proved
by express words, written or spoken, stating an actual

(a) Contracts of these two kinds
are respectively distinguished in the
civil law by the names wnilatera/ and
bilateral or synallagmatic. In the
former only one of the contracting
parties binds himself to the other, as

ina loan of money; in the latter each
of the contracting parties binds hitn-
self to the other, as in the contract of
sale. Pothier, Obl. par. 9; Code
Civil, § 1102, 1103; 1 Austin’s Jur.
297,
Contracts
in writing.

Offer and
acceptance
of terms.

12 CHAP. I. FORMATION OF CONTRACTS.

agreement; an implied agreement is proved by circum-
stantial evidence showing that the parties intended to
contract (a). Agreements may also be of a mixed character
in respect of the mode of making them, that is to say, partly
expressed in words and partly implied from acts and circum-
stances. No distinction, except in the nature of the proof,
arises from agreements being express or implied.

It is necessary here to notice that the term implied in Jaw
is used to denote the class of simple contracts raised by law
from facts and circumstances independent of agreement,
and in which an agreement or promise, if implied at all, is
an implication of law only, and has no existence in fact ()).
In the above passages the term “implied” is used to de-
scribe an agreement which has an actual existence in fact,
but which appears from circumstantial evidence and not in
express terms.

Simple contracts arising from agreement are frequently
expressed in writing, and are in some instances required by
law to be expressed in writing. They do not on that account
constitute a distinct kind of contract, but are subject to the
same rules of law as other simple contracts. The fact of
their being written, however, renders them subject also to
the rules of evidence relating to written documents ; and the
discussion of those rules in their bearing upon written con-
tracts as a class, including therein other contracts besides
simple contracts, is of sufficient importance to require treat-
ment in a separate space (c).

An agreement must necessarily be made in the form, or
what is equivalent to the form, of an offer of the matter or
terms of the agreement on the one side, and an assent to or
acceptance of those terms on the other side, as in the fol-
lowing examples :—At a sale by auction each bidding is an
offer of a price for the article put up for sale ; and these bid-
dings may be successively made until one is accepted by the

(a) See Murzetli y. Williams, 1 B. (6) See ante, p..7 5 and posé, p. 39.
& Ad. 415, 423, 428; and sec 1 Austin’s (c) Sec post, Chap. I, Sect. IV,
Jur., 356, 377 ; Maine’s Ancient Law, — “‘ Contracts in writing.”

B44.
sEcT. 1. § 1. SIMPLE CONTRACTS ARISING FROM.AGREEMENT. 13

fall of the hammer, when the agreement is complete (a).
The sending an order for goods to a merchant or tradesman
is in effect an offer to purchase; and the sending the goods
is an acceptance of the offer, and creates a contract of sale (b).
The publication of an advertisement offering a reward for
information respecting a loss or a crime is an offer to any
person who is able to give the information asked; and the
acceptance of it by giving such information creates a valid
contract (c). The time tables published by a railway com-
pany are a promise that the trains will run as advertised,
offered to all persons who apply in a regular manner to be
carried by them (d).

A correspondence between two parties by letter may con-
tain an agreement which will produce a contract as binding
as if drawn up in articles and signed by the parties as suck ;
but there must be found in the correspondence a proposal
of terms, met by such final acceptance as imports a consent
of both parties. The same construction must be put upon a
letter, or a series of letters, that would be applied to the
case of a formal instrument, the only difference between
them being, that a letter or a correspondence is generally
more loose and inaccurate in respect of terms, and creates a
greater difficulty in arriving at a precise conclusion (¢).

An offer unaccepted, or, what amounts to the same thing,
of which the acceptance is not communicated to the party
making it, does not constitute an agreement (f).
fendant sent to the plaintiff a letter offering to guarantee to
the plaintiff the debt of a third party, and the plaintiff,
though he gave credit to the third party on the faith of such
guarantee, did not communicate his acceptance of it to the
defendant; it was held that there was no contract, and that
the plaintiff could not maintain an action upon the letter (4).

(a) Payne v. Cave, 3 T. R. 148.

(b) See Harvey v. Johnston, 6 C.
B. 295, 304; and see Levy v. Green,
8 E. & B. 575, cited post, p. 16.

(c) Williams v. Carwardine, 4 B.
& Ad. 621.

(d) Denton v. Great Northern Ry.
Co.,5 E. & B. 860; 25 L. J. Q. B. 134.

(e) Kennedy v. Lee, 3 Mer. 441,

451; and see Thomas vy. Blackman,
1 Coll. 301; The Bog Lead Mining
Co. v. Montague, 10 C. B. N.S. 481,
491; 30 L. J. C. P. 380.

(f) Russell v. Thornton, 10 Ex.
323; 4H. & N.788; 30 L. J. Ex. 69.

(9g) M‘Iver v. Richardson, 1 M. &
8. 557; Mozley v. Tinkler,1 C.M.
& R. 692.

Offer un-
accepted,

The de- °
Variance
between the
terms of-
fered and
accepted,

14 CHAP. I. FORMATION OF CONTRACTS.

A person wrote a letter to another offering to purchase of him
a horse, and stating that if he received no answer he should
assume that his offer was accepted, to which letter no answer
was returned; it was held that the letter unanswered did
not constitute an agreement, and that a person in making
an offer has no right to put upon another the burden of
notifying his refusal by letter or otherwise (a).

The contract arising from an agreement dates from the
acceptance, and not from the offer of the terms. Accord-
ingly, under a contract of sale passing the property in the
goods sold the title of the purchaser dates, not from his
offer to purchase, but from the acceptance of the offer; and
therefore he cannot sue for a conversion of the goods com-
mitted before the acceptance though after the offer (b).

Where there is a variance between the terms offered and
the terms accepted there is no agreement, or consensus ad
idem, without which there can be no contract. As in the
following cases:—The defendant offered to purchase the
plaintiff’s house, with possession on the 25th July, and the
plaintiff accepted the offer with possession on the Ist
August (c). The defendant offered by letter to buy a mare
of the plaintiff upon his giving a warranty of her beng
quiet in harness, and the plaintiff wrote in answer agreeing
to sell the mare and warranting her quiet in double har-
ness (d). The defendant offered by letter to sell the plain-
tiff a certain quantity of ‘ good” barley, the plaintiff by
letter accepted the offer for “ fine” barley, and it appeared
that by the usage of the trade the expressions good and fine
meant different qualities of barley (ce). The defendant
offered to purchase the lease of a house of the plaintiff on
certain terms, and the plaintiff consented on the same
terms to grant the plaintiff an underlease (f). Upon a
treaty for an underlease a memorandum of terms proposed
by the lessee stipulated that it should contain all usual

(a) Felthouse v. Bindley, 11 C. B. (d) Jordan v. Norton, 4 M. & W.
N.S. 869; 31 L. J. C. P. 204. 155.

(4) Felthouse v. Bindley, supra; (e) Hutchison vy. Bowker, 5 M. &
and see Stockdale vy, Dunlop,6M.&  W. 535.
W. 224. (f) Holland v. Eyre, 2 8. & 8.
(c) Routledge v. Grant, 4 Bing. 660. 194.
SECT. I. § 1. SIMPLE CONTRACTS ARISING FROM AGREEMENT, 15

covenants and also the covenants in the leases of the ground-
landlord, and the proposed lessee wrote on the memoran-
dum that he agreed thereto, subject to there being no-
thing unusual in the lease of the ground-landlord (a). In
all,the above cases it was held that there was no binding
agreement, because of the variance between the terms pro-
posed and accepted.

The plaintiff applied by a letter in the prescribed form to
the provisional committee of a railway company for an allot-
ment of shares, undertaking to accept the shares and to pay
when required the deposit thereon; the company informed
the plaintiff by letter that they had allotted him the shares
upon condition that the deposit was paid on a certain day,
in default of which the allotment would be forfeited ; it was
held that the letter of allotment not being an unconditional
acceptance of the offer made by the letter of application, the
two did not constitute a valid contract (b). So, where to a
similar letter of application an answer was sent by a letter
allotting the shares, but the letter was headed “not trans-
ferable,” it was held that this term qualified the accept-
ance of the defendant’s offer, and that there was no con-
tract (¢). Where to a similar application an answer was
returned that the shares had been allotted, and that the
memorandum and articles of association must be signed,
and in default thereof the shares and deposit would be for-
feited, it was held that there was no complete contract to
take the shares (d).

In contracts of sale conducted through a broker as the
agent of both buyer and seller, if the bought and sold notes
delivered by the broker to the respective parties vary in
their terms, they will not serve to establish a contract (e),
as where the two sale notes varied in the description of the
goods (f),and where they varied as to the mode of payment,
the one stating it to be by ready money and the other by

(a) Lucas v. James, 7 Hare, 410. Briggs, 31 L. J. C. 241; and see
(8) Wontner v. Shairp, 4 C. B. Moore v. Garwood, 4 Ex. 681.
404, 441; and see Addinell’s Cuse, 1 (e) Grant v. Fletcher, 5 B. & C.

L. R. Eq. 225; 35 L. J. C. 75. 436; and see Sievewright v. Archi-
(c) Duke v. Andrews, 2 Ex. 290: bald, 17 Q. B. 103.
and see Chaplin v. Clarke, 4 Ex. 403. (f) Thornton v. Kempster, 5 Taunt.

(d) Oriental Inland Steam Co. vy. 786.
Prolimi-
nary nego-
tiations.

16 CHAP, I. FORMATION OF CONTRACTS.

bill (a). In a case where the bought and soid notes varied
in several expressions, evidence was admitted of the mercan-
tile meaning of the expressions in order to reconcile the two
notes (0).

The defendant sent a written order for goods addressed to
a perscn with whom he had been in the habit of dealing, and
the plaintiff, who had succeeded that person in the business,
executed the order without giving notice to the defendant
that the goods were not supplied by the person to whom the
order was addressed ; it was held that there was no con-
tract with the plaintiff, because the defendant had never
intended to contract with him (ce). An order was sent for
certain goods, and goods were sent agreeing with the order,
together with other goods not ordered, in one parcel and
with one invoice; the court was equally divided upon the
question whether, under the circumstances, there was a
binding contract to pay for the goods ordered, or whether
the purchaser might refuse the whole of the goods sent, and
not merely those not ordered (d).

A variance between the offer and acceptance may be
caused by the matter containing a term of ambiguous mean-
ing, and the two parties accepting it with different meanings.
There is then an apparent agreement; but each party in
fact mistakes the meaning of the other, and it is open to
each party to explain the meaning with which he accepted
the term, in order to show that there was no real agreement
between them (e).

Terms offered and representations made during the nego-
tiation for a contract, which are not comprehended in the
matter of the final agreement, are excluded from the con-
tract. The defendant represented to the plaintiff that a horse
which he was about to sell by auction was sound, and the
next day the plaintiff, relying on the representation, purchased

(a) Gregson v. Ruck, 4 Q. B. 737. — Hardman v. Booth, 1 H. & C. 803;
(6) Bold v. Rayner, 1M. & W.  32L.J3.Ex.105; Schmaling v. Thom-
343 ; see post, Chap. I, Sect. IV,  linson, 6 Taunt. 1:17.
“ Contracts in Writing:” and see (d) Levy v. Green, 8B. & B. 575.
Kempson v. Boyle, 34 L. J. Ex. 191. (e) See post, Chap. I, Sect. VI,
(c) Boulton vy. Jones, 2H. & N. “Mistake.”
564; 27 L. J. Ex. 117; and see
SECT. I. § 1. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 17

the horse at the auction at which it was put up for sale,
without a warranty; it was held that the representation of
the defendant formed no part of the contract. According
to Maule, J., “the contract commenced when the horse was
put up for sale, and ended when he was knocked down to
the highest bidder,” and thus excluded the representation,
which was not made pending the contract (a). Upon the
negotiation for a sale of goods a sample was exhibited, but
a contract was afterwards made in writing describing the
goods by kind and quality without referring to the sample;
it was held to form no part of the contract that the goods
should agree with the sample (b). Upon treaty for the sale
of a ship it was represented as copper fastened, but in the
written contract of sale it was not so described; it was held
that no warranty to that effect could be implied from the
previous representation (c).

But fraudulent representations made with the intention of
inducing the other party to enter into the agreement may
become material, as giving ground for avoiding the contract
or for an action of fraud; and such representations, though
not absolutely fraudulent in law, may be material in equity, as
affecting the right of the party making them to specific per-
formance of the contract, or as founding a claim against him
to make them good (d).

The offer of a contract necessarily precedes the acceptance Continu-
by some interval of time; and, as it must continue open until i ha
the acceptance, it 1s sometimes necessary to determine how
long it continues open, and how it may be put an end to.

An offer may in express terms limit its own continuance,
and it then comes to an end by mere lapse of time. Thus, an
offer by letter is sometimes made conditionally upon receiv-
ing an answer by return of post (e). Offers not expressly
limited are in general made upon the implied condition that

they shall be accepted within a reasonable time (/), and if

(a) Hopkins v. Tanqueray,15 C.B. (d) See post, Chap. I, Sect. VI,
130; 23 L. J. C. P. 162. “Fraud.”

(b) Tye v. Fynmore, 3 Camp. 462 ; (e) Adams y. Lindsell, 1 B. & Ald.
Meyer v. Everth, 4 Camp. 22. 681; Dunlop v. Higgins, 1 H. L. C.

(c) Pickering v. Dowson, 4 Taunt. 381.
799; Kain v. Old, 2 B. & C. 627; (f) See per Lord Eldon, Kennedy
Freeman v. Baker, 5 B. & Ad. 797. vy. Lee, 3 Mer. 441, 454; Thornbury

c
Offer by
letter.

Acceptance
by letter.

18 CHAP. I, FORMATION OF CONTRACTS.

not accepted within a reasonable time may be treated as
at an end (a). Application having been made for shares in
a company in accordance with their published prospectus on
the 8th of June, no allotment was made in answer to the
application until the following 28rd of November ; it was
held that the allotment was not made within a reasonable
time, and therefore that the applicant was not bound to
accept the shares allotted, although he had not expressly
withdrawn his application (5).

An offer by letter or other communication between dis-
tant parties continues open until the arrival of the letter or
other communication in due course at its destination (c).
If the delivery of the letter of offer is delayed by the
default of the sender, the offer is extended until its arrival.
The defendants by letter offered to sell certain goods to the
plaintiffs, receiving an answer by return of post; the letter was
delayed in consequence of the defendants having addressed it
incorrectly, and the letter of the plaintiffs by return of post
accepting the offer did not arrive until later than it would
have done if the letter of offer had been correctly addressed ;
in the meanwhile the defendants not hearing from the
plaintiffs had sold the goods to another person; it was
held that there was a binding contract,—the Court saying
that as the delay in notifying the acceptance arose entirely
from the mistake of the defendants, it was to be taken as
against them that the plaintiffs’ answer was received in
course of post (d). Where an offer-was made by letter
without requiring an answer by return of post, it was held
that a notification of acceptance sent by post on the day of
the receipt of the offer, though not by the next post, was
sufficient (e).

Where the proposal sent by letter is accepted by letter,
the contract is complete on the posting of the letter of
acceptance. In the case of Adams v. Lindsell (f), the defen-

v. Bevill, 1 Y. & C. Ch. 554; Meynell infra.

vy. Surtees, 1 Jur. N. 8. 737; 25 L. J. (d) Adams y. Lindsell, 1 B.& Ald.
C. 257, 259. 681

(a) Williams v. Williams, 17 Beav. (e) Dunlop v. Higgins, 1H. L. C.
213 881.

(b) Ramsgate Victoria Hotel Co. v. (f) 1B. & Ald. 681; and see per
Goldsmid, 1 L. Rep. Ex. 109. Wilde, O.J., Harvey v. Johnston, 6
(c) See Adams y. Lindsell, cited C.B. 295, 304.
SECT. I. § 1. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 19

dants having written to the plaintiffs a letter offering a sale
of wool, after the letter of acceptance was posted and before
its delivery, sold the wool to another person. In an action
for not delivering the wool, it was contended on behalf of
the defendants that there could be no binding contract
until the answer was actually received, and before then the
defendants had retracted their offer by selling the wool to
other persons. But the Court said, that if that were so, no
contract could ever be completed by the post. For if the
defendants were not bound by their offer when accepted by
the plaintiffs till the answer was received, then the plaintiffs
ought not to be bound till after they had received the notifi-
cation that the defendants had received their answer and
assented to it. And soit might go on ad infinitum. The
defendants must be considered in law as making, during
every instant of the time their letter was travelling, the
same identical offer. to the plaintiffs; and then the con-
tract is completed by the acceptance of it by the latter.
In the case of Potter v. Sanders (a) the vendor of an estate
accepted an offer made by letter for the purchase of it by
a letter posted on one day and delivered the next. On the
latter day the same estate was sold by an agent of the ven-
dor to another party. Upon the question of priority be-
tween the two purchasers Vice-Chancellor Wigram decided
that it was unnecessary to inquire whether the letter of
acceptance was delivered before the other contract was
made. The delivery of the letter, he said, was merely
the completion of an act by which the vendor had bound
himself the day before; and the vendor, when he put into
the post office the letter to the plaintiff, did an act which,
unless it were interrupted in its progress, concluded the
contract between himself and the plaintiff.

The acceptance is complete and the contract valid upon
the due posting of the letter of acceptance, notwithstanding
delay, or even entire failure in arriving at its destination,
provided such delay or failure has not been occasioned by a
wrong address of the letter, or other default in the party
sending it (b). Ina case on appeal to the House of Lords

(a) 6 Hare, 1. 881; Duncan vy. Topham, 8 C. B.
(0) Dunlop v. Higgins, 1 H.L. 0. 225.
c 2
Revocation
of offer.

20 CHAP. I. FORMATION OF CONTRACTS.

against a decree of the Court of Session, it appeared that a
letter was sent offering a sale of goods, which was accepted
by a letter duly posted for that purpose ; but the letter of ac-
ceptance not arriving in regular course of post by reason of
delays in the post office, not occasioned by any default in
the sender, the owner of the goods refused to supply them ;
it was held that the contract was complete upon the posting
of the letter of acceptance, and that the seller of the goods
was liable for not delivering them according to the con-
tract (a). The defendant by letter offered to buy goods of
the plaintiff, and the plaintiff duly posted a letter accepting
the offer, but the letter never reached its destination ; it was
held that the contract was nevertheless complete, and the
defendant was bound to accept delivery of the. goods accord-
ing to the contract (2). In a case before the Court of Ses-
sions in Scotland, a letter accepting a proposed contract
was posted, and a subsequent letter recalling the acceptance
was also posted and arrived at the same time with the
previous one; the judges of the Court of Session, reversing
the judgment of the Court below but not unanimously, held
that there was no contract (c).

The party making an offer of a contract is at liberty to
revoke it by a notice to that effect given to the other party
at any time before it is accepted (d). Thus, in sales by
auction, either seller or bidder may withdraw their respec-
tive offers before the hammer falls (e). As an offer may be

(a) Dunlop v. Higgins, supra.

(6) Duncan vy. Topham, 8 C. B. 225.

(ec) Dunmore vy. Aleander, 9 Shaw
& Dnnlop, 190.

(d) According to Pothier, an offer
of a contract sent by letter may be
withdrawn by the mere sending of a
subsequent letter stating a change of
mind, provided only it is sent before
the first can have arrived, although it
may not arrive until after the first is
received and answered; so that al-
though on receipt of the first letter,
and in ignorance of the change of mind
conveyed by the second, an answer is
sent accepting the offer, there is no
contract, because there is no agree-

ment. The passage from Pothier to
this effect (contrat de vente, ». 32)
has been cited by some writers as in
accordance with English law (see
Chitty, Contr. 7th edit. 12; Head v.
Diggon, 3M. & R. 97,100, n. c), but
it is here submitted that it is incon-
sistent with the decisions above cited,
and contrary to principle in regard-
ing as the test of agreement the ab-
stract intentions of the parties in-
stead of the expressions of intention
ao between them (see arte,
p: 8).

(e) Fayne v. Cave, 3 T. R. 148 ;
Warlow v. Harrison, 1 E. & KE. 295;
28 L. J. Q. B. 18.
SECT. 1. § 1. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 21

withdrawn, so it may be varied at any time until it has been
actually accepted (a). Where negotiations ensued upon an
offer with a view to an alteration of its terms, the party
making the offer was held entitled to withdraw pending the
negotiations before any terms had been finally acceded to (b).

An offer which in its terms allows a certain time for
acceptance, may be withdrawn during that time before
acceptance (c). In the case of Cooke v. Oxley (d) the plain-
tiff in his declaration stated that the defendant proposed to
the plaintiff to sell and deliver certain goods upon certain
terms, if the plaintiff would agree to purchase them upon
the terms aforesaid, and would give notice thereof to the
defendant before the hour of four in the afternoon of that
day ; the plaintiff then averred that he did agree to pur-
chase the goods aforesaid, and did give notice thereof to the
defendant before the hour of four in the afternoon of that
day, and proceeded to charge a breach by the defendant
in not delivering; after verdict for the plaintiff, the declara-
tion was held bad in arrest of judgment on the ground that
it did not contain an allegation of a contract. It was said
that the defendant was not bound to continue his offer until
four o’clock because it was not made upon any consideration,
and there was no averment that he in fact continued his
offer at the time it was accepted, so that no agreement was
alleged as a matter of fact. It may be remarked that the
facts alleged, in the absence of proof of dissent by the de-
fendant, might have been sufficient for a jury to infer the
fact that the defendant’s offer continued open when the
plaintiff accepted it, so as to establish a complete agreement
between them; but such fact could not be imported into
the declaration without an allegation to that effect.

The defendant offered to purchase a house of the plain-
tiff and to give him six weeks for a definite answer ; it was
held that the defendant might retract his offer at any time
during the six weeks before it was accepted (e). The de-
fendant made a written offer to the plaintiff to sell him cer-

(a) Honeyman v. Marryat, 21 Beavy. (c) Cooke v. Oxley, 3 T. R. 653;
14. Routledge v. Grant, 4 Bing. 653.

(2) Thornbury v. Bevill,1 Y. & C. (2d) 3 T. R. 653.
h. 554,

Cc (e) Routledgev. Grant, 4 Bing. 653,
Revocation
by death.

Refusal of
offer,

22 CHAP. I. FORMATION OF CONTRACTS.

tain wool, with three days grace from the date to make up
his mind; within the three days the plaintiff went to the
defendant to accept the offer, when the defendant said that
he had offered the-wool to another, and declined the sale; it
was held that there was no contract, because, when the
plaintiff signified his acceptance of the offer, the defendant
did not then agree (a).

An offer is revoked by the death of the party proposing
it. Accordingly, a person having authorized a supply of
goods from a tradesman for the use of his family during his
absence, and having died while absent, the tradesman was
held to have no claim against his executor for goods supplied
after his death (b). A person authorized the plaintiff to
endeavour to sell a picture upon the terms that if he suc-
ceeded he should be paid £100, and died before the picture
was sold; it was held that the employment was revoked, and
that the plaintiff could not upon the sale of the picture
recover the £100 against the representative of the em-
ployer (c). A person having ordered of the plaintiff a set
of artificial teeth to be made and fitted died before they
were made; it was held that the order was revoked by the
death, and the plaintiff had no claim against the executor of
the deceased for the work done by him in pursuance of the
order (d).

An offer is also revoked by the death of the person to
whom it was made before acceptance. In such case the
offer cannot be accepted by the representatives of the de-
ceased (e).

A proposal is put an end to by a refusal of it. “If an
offer made is rejected, the party making it is relieved from
his liability on that offer, and the party who has rejected
the offer cannot afterwards at his option convert the same
offer into an agreement by acceptance ; for that purpose he

(a) Head v. Diggon, 3 M. & R. 97. (d) Lee v. ae + ao & Smith,
(b) Blades v. Free,9 B.& 0.167; 272; 30L.3.Q.B

and see Smout v. Tibery, 10M.& W. 1. (e) See Werner v. aise 2
(c) Campanart vy. Woodburn, 15 M. & G. 853.

C. B. 400.
SECT. 1. § 1. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 23

must have the renewed consent of the person who made the
offer” (a).

The offer of a contract can be accepted only by the party Offer not
to whom it is proposed, and cannot be assigned by him to “*8"*l’
another -without the consent of the proposer. ‘In the
simple case of an offer by A. to sell to B., an acceptance of
the offer by C. can establish no contract with A.” (0). The.
defendant sent a written order for goods addressed to a cer
tain person, and the plaintiff, who had succeeded to the
business of that person, executed the order without giving
notice to the defendant that the goods were not sent by the
person to whom the order was addressed; it was held that
there was no contract between them (c).

The process of agreement on which the contract is founded Contracts
arising

may be effected in the following manner. The offer of a con- upon exe-
tract may be made in the form of a request to perform the (uedconst
consideration, which may be accepted by a performance of

the consideration according to the request ; or the offer may

be made in the form of an offer of the consideration for ac-
ceptance, which may be agreed to by accepting the consi-
deration offered. Contracts thus formed are described as

arising upon executed considerations: in the one case the
contract is formed by a consideration executed upon request,

in the other case by the acceptance of an executed consi-
deration.

A rule has been laid down by some writers as of universal
application respecting contracts arising from executed con-
siderations, namely, that an executed consideration will not
support a promise unless the consideration was moved by a
previous request. But it is also laid down by the same
writers, that a previous request is implied by law, where a
contract arises from the acceptance of an executed consi-
deration. The implied request, here intended, is not an
inference of fact like the implied agreements mentioned

(a) Sheffield Canal Co. v. Sheffield (2) See Meynell v. Surtees, 3 Sm.
& Rotheram Ry. Co., 3 Railway Cases, & Gif. 101, 117.
121, 182; Hyde v. Wrench, 3 Beav. (c) Boulton v. Jones, 2H. & N.
334; Honeyman y. Marryat, 21 564; cited ante, p. 16.
Beay. 14,
24 CHAP. I. FORMATION OF CONTRACTS.

above (a); but it is an implication of law only, and in point
of fact is a pure fiction. The use made of this fiction, and
apparently the only use, is to preserve the universality of
the above rule, that the executed consideration must be
moved by a previous request (b). With the assistance of this
fictitious request it is seen that all agreements arising from
an executed consideration are reducible to the one form of a
request to execute the consideration, followed by the execu-
tion of it according to the request; but if the fictitious re-
quest is discarded, they will be found in fact to appear in the
two forms above given of a consideration executed upon a
request, and an acceptance of an executed consideration.

Contracts Where a request to perform the consideration is made in

ae @ manner or in terms importing a promise to pay for its

deration performance, the promise may be accepted and rendered

upon re- binding by the performance of the request, as where work

ee is done, or services are rendered, or money is paid by one
person at the request of another, with the intention that
they shall be paid for. In such cases a valid contract arises
to pay for them.

In the leading case of Lampleigh v. Braithwait (c) the
facts, as stated in the declaration, were that the defendant
having committed a felony requested the plaintiff to labour
and do his endeavour to obtain his pardon from the King,
whereupon the plaintiff did by all the means he could and
by many days’ labour do his endeavour to obtain the King’s
pardon ; and afterwards, in consideration of the premises,
the defendant promised the plaintiff to pay him. After
verdict for the plaintiff it was moved, in arrest of judgment,
that the consideration was passed before the promise was
given, and therefore the promise was void as having been
given without ‘a consideration; but the Court held that a
valid contract was created by the request of the plaintiff's
services and the rendering of the services in pursuance of
the request. The Court is further reported to have agreed
“that a mere voluntary courtesy will not have a considera-

(a) See ante, p. 11. Smith’s L. C., 5th ed., 185; Fisher vy.
(6) Chit. Contr. 5th ed., 57, 58; Pyne,1M. & G. 265, n. (0) ‘cited post,
Smith’s Contr., 3rd ed., 156, 160; pp. 26.

notes to Lampleigh v. Brathwait, 1 (c) Hobart, 105; 1 Smith, L. C.,
6th ed., 135.
SECT. I. § I. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 25

tion to uphold an asswmpsit, but if that courtesy were
moved by a suit or request of the party that gives the us-
sumpstt it will bind.” Accordingly, wherever work is done or
services rendered by one person at the request of another,
provided such work or services are not asked for and per-
formed as a gratuitous favour, a contract is formed to pay
the value (a).

A contract of guarantee is usually made in the form of a
request or offer, acceded to by performance. A person says
to another, “If you will employ this man as your agent for
a time, I will be responsible for all such sums as he shall
receive during that time and neglect to pay over to you.”
The party indemnified is not therefore bound to employ the
person designated by the guarantee, but if he do employ
him then the guarantee attaches and becomes binding on
the party who gave it (Lb). So, contracts of forbearance are
commonly made in the form of a request of forbearance upon
certain terms. The creditor is not bound to forbear, but if
he does forbear as requested, he becomes entitled to exact
the terms upon which the forbearance was asked (c).

A common example of this mode of contracting occurs
upon the payment of money by one person at the request of
another. If one requests another to pay money for him, in
a manner importing an undertaking to repay it, the amount
paid becomes a debt due to the party paying from him at
whose request it is paid,—the request to pay and the pay-
ment according to the request forming a contract to pay the
amount, which is technically described in law as a debt “for
money paid by the plaintiff for the defendant at his re-
quest ” (d). Money paid by the plaintiff, against the payment
of which the defendant has agreed to indemnify him, may
in general be recovered by the plaintiff from the defendant
as being money paid at his request, the indemnity being
treated as equivalent to a request (e). Where the defendant

head vy. Sproson,6 H. & N. 728; 30

(a) See Jewry v. Busk, 5 Taunt.
302

(6) Per Parke, B., Kennaway v.
Treleavan, 5 M. & W. 498, 501; and
see Mills v. Blackall, 11 Q. B. 358,
366; Offord v. Davies, 12 0. B. N.
8. 748; 31 L. J.C. P. 319; West-

L, J. Ex. 265.
(c) Morton vy. Burn, 7 A.& E. 19.
(d) Brittain v. Lloyd, 14M. & W.
762; Lewis vy. Campbell, 8 C. B. 541.
(e) Westropp v. Solomon, 8 C. B.
345, 369; Lewis v. Campbell, supra.
Contracts
arising
upon ac-
ceptance of

x executed
considera
tion,

26 CHAP. I. FORMATION OF CONTRACTS.

requested the plaintiff to bring an action in a matter in
which the defendant was interested, and the plaintiff incurred
costs in so doing, he was held entitled to recover the amount
as money paid at the request of the defendant (a). Where
the plaintiff has been compelled to pay an accommodation
bill accepted by him for the accommodation of the defendant,
the payment may be considered as made at the request of
the defendant, and may be recovered as money paid at his
request (6).

If a consideration is offered or performed in a manner im-
porting the intention of being paid for it, the acceptance of
the consideration imports a promise to pay for it on the
terms of the offer, as where goods are offered for sale by
the plaintiff and accepted by the defendant, or where money
is offered on loan by the plaintiff and accepted by the de-
fendant. A previous request on the part of the promiser
to perform the consideration is here immaterial, the accept-
ance of it showing a sufficient agreement on his part to sup-
port a contract.

Hence, in pleading a contract of this kind, the allegation of
a previous request, though formerly usual, is inartificial ; such
a request need neither be alleged or proved. The following
observations of Serjeant Manning on this subject, have been
pronounced by Parke, B., to be perfectly correct (c):—‘‘ The
statement, according to modern practice, of the accrual of a
debt for, or the making of a promise for the payment of the
price of goods sold and delivered, or for the repayment of
money lent, as being in consideration of goods sold and de-
livered, or money lent to the defendant, at his request, is
conceived to be an inartificial mode of declaring. Even
where the consideration is entirely past, it appears to be
unnecessary to allege a request, if the act stated as the con-
sideration cannot from its nature have been a gratuitous
kindness, but imports a consideration per se ; it bemg imma-
terial to the right of action, whether the bargain, if actually

(a) Bailey vy. Haines, 13 Q. B. 514, And see post, p. 43.
815, 832. (c) Per Parke, B., Victors vy. Da-
(6) Garrard v. Cottrell, 10Q. B. vies, 12 M. & W. 758, 759, citing the
679 ; and sce Sleigh v. Sleigh, 5 Ex. note to Fisher v. Pyne,1 M.& G. 266.
SECT. I. § 1. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 27

concluded and executed, or the loan, if made, and the monies
actually advanced, was proposed and urged by the buyer or
by the seller, by the borrower or by the lender.” ~

A mere assent to or acquiescence in the performance of ponies
the consideration may be sufficient to import an agreement fara aneeni
to pay for it. Thus, where the plaintiff, a surgeon, attended 10 Pevform-
a pauper belonging to a parish of which the defendant was sideration.
overseer, and therefore legally bound to supply the pauper
with medical attendance, it was held that the knowledge of
the overseers of the plaintifi’s attendance, and their allow-
ing him to continue his attendance after such knowledge,
was equivalent to a request to give such attendance and
imported an agreement to pay for it (a). So, where the
plaintiff, a surgeon, had attended a pauper belonging to the
parish of which the defendant was overseer, and the latter
requested the plaintiff to make out his bill to the parish and
said that he should be paid, the defendant was held liable,
Bayley, J., saying, ‘‘The conduct of the defendant as the
overseer of the parish amounted to an acknowledgment on
his part that the plaintiff had attended at the defendant’s
wish, and upon his responsibility” (0).

In the above cases the consideration performed by the
plaintiff, the surgeon, discharged the defendant, the over-
seer, from a legal duty, so that he in fact received the
benefit of the performance, a circumstance which would
greatly strengthen the inference of a promise to be drawn
from his knowledge and acquiescence. But in the case of
necessaries supplied to a child with the knowledge of the
father, but without his order or authority, there being no
legal duty in the father to maintain his child from which he
is thereby relieved, it is held that no inference of a promise
to pay for the necessaries can be drawn only from his know-
ledge of the supply. The mere moral duty of the father to
maintain his child affords no inference of a legal promise to
pay his debts. In order to bind a father in point of law

(a) Lamé v. Bunce, 4M. & 8. 275; (6) Wing v. Mill, 1 B. & Ald.
Paynter v. Williams,1C.& M. 810; 104.
and see Tomlinson vy. Bentall, 5 B. &
C. 738.
28 CHAP. I. FORMATION OF CONTRACTS.

for a debt incurred by his child, it must be proved that he
has contracted to be bound just in the same manner as such
a contract would be proved against any other person (a).

Ri paced The consideration may be executed under such circum-

sideration stances that there can be no presumption of an agreement

ua con to pay for it, in which case it will not create a contract.

tracks The plaintiff having contracted with the defendant to
command a ship for a certain voyage, abandoned the com-
mand during the voyage, but rendered services in assisting
to navigate the ship, and claimed to be paid for the services
thus rendered ; it was held that he failed in proving any con-
tract to pay for them, because they were done without the
request or knowledge of the defendant, and because the de-
fendant had not voluntarily accepted them. Pollock, C.B.,
said, “ A recognition or acceptation of services may be cok
ficient to show an implied contract to pay for them, if at the
time the defendant had power to accept or refuse the ser-
vices. But in this case it was not so. The defendant did
not know of the services until the return of the vessel, and
it was then something past which would not imply, perhaps
would not support a promise to pay for it. The benefit of
the service could not be rejected without refusing the pro-
perty itself. The ship came home, say partly by the assist-
ance of the plaintiff: what could the defendant do but re-
ceive his ship back again? There was nothing in that to
imply a contract to pay the defendant anything” (b).

The defendant having ordered goods of one person, the
plaintiff, a different person, sent the goods, and the defendant
having consumed the goods before he had notice that they
belonged to the plaintiff, it was held that he was not liable
to the plaintiff for the price, on the ground that not having
had any option of returning the goods to the plaintiff, no
agreement with him could be inferred from the acceptance
of them (c).

In the case of buildings erected upon land under alleged

(a) Mortimore v. Wright, 6M. & (b) Taylor v. Laird, 1 H. & N.
W. 482; Hodges v. Hodges, Peake, 266; 25 L. J. Ex. 329.
Ad. C. 79; Seaborne v. Maddy, 9 C. (c) Boulton v. Jones, 2 H. & N.
& P. 497; and see Law vy. Wilkin, 564; 27 L. J. Ex. 117.
6 A.& E. 718.
srcT. 1. § 1. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 29

contracts to pay for them, the inference as to the accept-
ance of the consideration drawn from keeping possession of
the buildings, is different from the case of goods and chat-
tels delivered and retained. ‘The possession of the land by
the owner necessarily involves possession of the buildings,
without allowing him any option of rejecting them. Mere
possession of land, therefore, does not raise any inference
of the acceptance of buildings placed on it by another, in a
sense implying a consent to pay for them (a).

Still less can an agreement be presumed from a considera-
tion performed against the express consent of the other
party, although he may derive some benefit from it (0).
Accordingly, where a chattel is detained under a claim of
lien against the owner, and charges are incurred in keeping
and taking care of it during the detention, no claim can be
made against the owner in respect of such charges (c).

Where the consideration has been obtained by the defen- Contracts
dant from the plaintiff by wrongful or fraudulent means, ae
the defendant cannot, in general, set up his intention to see ce
commit a wrong or a fraud in order to contradict the infer- wrong or
ence of a contract on his part to pay for the consideration. sed
The defendant by fraud procured the plaintiff to sell goods to
a third person, who was insolvent, for the purpose of getting
them into his own possession ; it was held that the plaintiff
might recover the value of the goods as tipon a sale to the
defendant, who had obtained possession of them, and that
the defendant could not be permitted to account for the pos-
session by setting up the sale to the third party, which he
had himself procured by fraud (d). The defendant enticed
away an apprentice from the plaintiffs service and appro-
priated the services of the apprentice to his own use ; it was
held that the plaintiff might waive the wrong and claim from

the defendant the value of the services which the defendant

(a) Munro vy. Butt, 8 E. & B. 738; (d) Hill v. Perrott, 3 Taunt. 274;
Ellis y. Hamlen, 3 Taunt. 52; Milner see the observation on this case by
v. Field, 5 Ex. 829; Farnsworth v. Parke, B., Selway v. Fogg, 5 M.& W.
Garrard, 1 Camp. 38. 83, 84; and see Biddle v. Levy, 1

(b) See Stokes y. Lewis,1 T. R.20. Starkie, 20 ; per Lord Abinger, C. B.,

(c) British Empire Shipping Co. Russell vy. Bell, 10 M. & W. 340,
y. Somes, E. B. & E. 353; 30 L. J. 352.

Q.B. 229.
Where con-
sideration

30

had obtained from the plaintiff’s apprentice, as having been
performed at the request of the defendant (a). The plaintiff
having taken an excursion ticket for a journey on the defen-
dants’ railway, which was subject to the express condition
that no luggage was allowed, took certain luggage with him
and had it carried on the journey; it was held, upon the
principle above stated, that he was liable to pay the usual
charge for the carriage of the mggage, as upon a contract
arising from his obtaining the benefit of the carriage, and
that the defendants had a lien upon the luggage for the
amount (b). .
But where the consideration has been obtained by the

CHAP. I. FORMATION OF CONTRACTS.

obtained by defendant from the plaintiff by means of a fraudulent con-

a fraudu-
lent con-
tract.

tract which the plaintiff is entitled to rescind on the ground
of fraud (c), the plaintiff cannot assert any other contract
than that in fact made. He must either sue upon that,
or, disaffirming it, he must sue for the fraud as a substan-
tive wrong, or for the recovery of his property obtained
by means of it (d). The plaintiff sold goods to the de-
fendant to be paid for by a bill of a third party “ with-
out recourse on the buyer in case of its not being paid ;”
the bill was worthless, as the defendant knew at the time
of the sale; it was held that, though the plaintiff might
avoid the sale and sue for the recovery of his goods, or
might bring an action for the fraud, he could not recover
in an action for goods sold to the defendant (e). The plain-
tiff having been induced by fraud to sell goods to the de-
fendant upon credit, upon discovering the fraud sued the
defendant for the price before the credit had expired; it
was held that he had misconceived his remedy; the de-
fendant was not liable according to the contract, and if the
plaintiff disaffirmed the contract the goods remained his
property (f). The plaintiff contracted to do certain work
for the defendant at a certain price upon a fraudulent mis-

(a) Lightly v. Clouston, 1 Taunt.
112; Foster v. Stewart, 3M. & 8.191.

(6) Rumsey v. North-Eastern Ry.
Co., 140. BLN. 8. 641; 32 L. J.C.
P. 244,

(c) See post, Chap. I, Sect. VI,
“Fraud.”

(d) Read y. Hutchinson, 3 Camp.

352; Ferguson v. Carrington, 9 B.
& 0.59; Strutt y. Smith, VC. M.&R.
812; Selway v. Fogg, 5 M. & W. 83.

(e) Read v. Hutchinson, 3 Camp.
852.

(f) Ferguson v. Carrington, 9 B.
& C. 59; Strutt v. Smith, 1 C. M.&
R. 312.
SECT. I. § 1. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 31

representation of the defendant as to the quantity, and
having done the work, sued the defendant for its full
value as work and labour done at the request of the defend-
ant ; it was held that there was no contract to that effect,
but that he might either claim the contract price, or might
repudiate the contract and sue the defendant in an action
for the deceit (a).

Contracts founded upon executed considerations in the Contracts
arising up-
manner above mentioned frequently arise, where a contract on part per-
with an executory consideration has been rescinded after epee
part performance of the consideration. A new contract may Ory consi-
deration.
arise upon the part performance of the consideration, in re-
spect of its having been performed upon request, or being

retained and accepted.

Under a contract with an executory consideration, if the Where de-
promiser after part performance of the consideration refuses fas
or prevents the completion, the promisee may insist upon dee
his rights under the contract, but im general he has the miser.
option to treat the contract as rescinded, and prefer a claim
upon a new contract arising in respect of the consideration
executed, as accepted by the promiser or as executed at his
request, as in the following examples:—The defendant
ordered of a publisher a work to be delivered in twenty-four
monthly parts, and after receiving eight he refused to re-
ceive more; the original contract could not be enforced be-
cause it was within the Statute of Frauds and not made in
writing; but it was held that the defendant, by accepting
and keeping the eight numbers, became lable on a new
contract to pay the value of them (b). The defendant en-
gaged the plaintiff to write a treatise for a periodical publi-
cation ; the plaintiff commenced the treatise, but before he
had completed it the defendant abandoned the publication ;
it was held that the plaintiff might treat the original con-
tract as rescinded, and sue for the value of the work already
done without completing the treatise (c). The defendant
employed the plaintiff to find a purchaser for an estate upon

(a) Selway v. Fogg, 5 M. & W. (6) Mavor v. Pyne, 3 Bing, 285.
83. (c) Planché y. Colburn, 8 Bing. 14.
32 CHAP. I. FORMATION OF CONTRACTS.

the terms of receiving a percentage on the purchase money ;
the plaintiff having found a purchaser, the defendant refused
to complete the sale; it was held that the plaintiff might
recover the value of the work and labour which he had per-
formed, as having been performed at the request of the
defendant (a). The defendants, a public company, employed
the plaintiff, a broker, to dispose of their shares on the terms
that he should be paid £100 down, and £400 in addition
upon the allotment of the whole of the shares of the com-
pany ; the plaintiff disposed of part of the shares, when the
company wound itself up and so prevented him from dis-
posing of the remainder and earning the £400; it was held
that the plaintiff was entitled to recover a part of the £400
proportionate to the work done, as having performed it at
the request of the company (b). An agreement was made
that the plaintiff should supply the defendant with board
and lodging to be paid for by certain furniture of the de-
fendant to be taken at a valuation; the defendant having
suffered the furniture to be taken in execution, and so pre-
vented the further completion of the contract, he was held
liable for the value of the board and lodging which he had
already received, as having been provided at his request (c).
By a contract made between the plaintiff and the defendant,
the plaintiff was to supply the defendant with a certain
quantity of furniture on the terms of payment, one half in
cash and the other half by bill at six months ; after delivery
of a portion under the contract, the defendant refused to
take any more; it was held that the refusal of the de-
fendant entitled the plaintiff to treat the contract for pay-
ment by bill as at an end, and at once to recover the value
of the goods received by the defendant in an action for goods
sold and delivered (d). An author employed a printer to
print a work, who printed a portion of the copy delivered
to him for that purpose, but discovering that another por-
tion offered for printing was libellous refused to print it; it

(a) Prickett v. Badger, 1C.B.N. 341.3. 0. P. 15.
8. 296; 26 L. J. C. P. 33; and see (c) Keys v. Harwood, 2 C.B. 905;
De Bernardy v. Harding, 8 Ex. 822; and see Clarke y. Westrope, 18 C. B.
22 L. J. Ex. 340. 765; 25 L. J. C. P. 287.

(6) Inehbald v. Western Neilgherry (d) Bartholemew v. Markwick, 15
Tea Company, 17 C. B. N. 8.7383; ©. B.N.8S.711; 33 L.J.C. P. 145.
SECT, T. § 1. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 33

was held that he was entitled to recover the value of his
work for the portion printed, as having been done at the
request of the defendant (a). In this case the defendant
did not in terms repudiate the contract, but prevented the
completion of it except in an illegal manner, which was
held to be equivalent to repudiation.

Similarly, upon a contract with an executory consideration, Where de-

if the promisee after part performance of the consideration

fault in
completion

refuses to complete it, the promiser may in general treat the ie oe

used by

contract as rescinded; but in such case, by retaining the misee.

part-performed consideration, he may render himself liable
upon a new contract arising from such executed considera-
tion. Thus, in contracts of sale of a certain quantity of any
article, if part only is delivered and the seller fails to deliver
the rest, the purchaser may return the part delivered ; but if
he elects to keep it after the seller has failed in performing
his contract, he is taken to consent to pay the value (0).
So, under a contract of sale of goods by description, if the
goods delivered are not according to the description they
may be returned; but if they are kept the seller may claim
their value, because as explained by Parke, J., “from the
circumstances a new contract may be implied” (+). The
defendant ordered two dozen of wine and the plaintiff sent
four ; the defendant kept a portion and sent back the rest,
and was held liable only for the portion which he kept. As
explained by Alderson, B., “The defendant had a might to
send back all; he sends back part. What is this but a new
contract as to the part he keeps?” (d). A written agree-
ment was made for the performance of certain building work
by the plaintiff for the defendant, but the agreement as to
the mode and time of buildmg was not complied with, and
the defendant acquiesced in and accepted the building in a
different form; it was held that there was a new agreement,
under which the plaintiff was entitled to recover (e).

(a) Clay v. Yates,1 H. & N. 73; (2) Hart v. Mills, 15 M. & W. 85.
25 L. J. Ex. 237. (e) Burn v. Miller, 4 Taunt. 745;

(b) See Shipton v. Casson,5B.&C. and see Lucas v. Godwin, 3 Bing.
878; Oxendalev. Wetherell,9B.&C. N.C. 737; Lamprell v. Billericay
386 ; Champion v. Short,1 Camp. 53. Union, 3 Ex. 283 ; and see ante, p. 28.

(ec) Ready. Rann, 10B. &C. 438, 441.
D
34 CHAP. I. FORMATION OF CONTRACTS.

Wherepart The original contract may in its terms provide against

perform: and exclude any claim being made for a part performance

fe of the consideration; and then, so long as the contract re-

the original Mains open and-unrescinded, the part performance must be

contract. referred to the original contract, and no new contract can
arise respecting it.

In the ordinary cases of one person employing another to
do any work or services for him, the employment cannot be
revoked before completion without reimbursing the person
employed for the labour and expense he has already in-
curred under the employment. As for instance, in the
case where an artist has been employed to paint a picture
and the employer revokes the order before the completion
of the picture, the artist would be entitled to compensation
for the labour he has bestowed and the money he has spent.
But this right must always depend upon the terms of the
contract ; and though a general employment may carry with
it the right of revocation upon payment of what has been
done under it, yet it is perfectly possible that there may be
a contract of employment of a qualified nature to the effect
that if the work is not completed there is not to be any pay-
ment. Thus, in the case of house-agents, ship-brokers, and
businesses of that kind, the employment may be revoked
without any compensation (a). The plaintiffs, carrying on
the business of clerical agents for the sale of livings upon
the terms of a fee of three guineas for entering particulars
in their books and making inquiries, and five per cent:
upon the purchase-money on effecting a sale, were employed
by the defendant to sell an advowson under an agreement
to forego their usual fee of three guineas; the defendant
having afterwards himself sold the advowson, the plaintiffs
brought an action in which they claimed to be paid for the
entry and inquiries as services rendered at the request of
the defendant ; but it was held that by the terms of their
employment such services were not to be paid for, except
in the event of their effecting a sale (b). An estate agent
was employed to sell or mortgage a house on the terms of
being paid a certain sum if successful ; the mortgage was

(a) See per Jervis, C.J., Simpson (2) Simpson v. Lamb, 17 C.B. 603;
v. Lamb, 25 L. J. C. P. 118, 116. 25 L. J.C. P. 113,
SECT. I. § 1. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 39

procured, but not through his efforts ; it was held that he
had no claim for the services rendered by him (a). The
plaintiff, a ship-broker, was employed to procure a charter
for a ship, upon the terms according to the usage of the
trade that a commission was payable if the bargain was
made, but if the bargain went off nothing was payable; the
ship-broker procured a charter, but the bargain went off;
he was held not to be entitled to any payment for his ser-
vices (4). An architect agreed to prepare plans for build-
ing on certain land, on the terms that he was to make no
charge for the plans unless the land was disposed of for
the purpose of the building, when he was to be employed as
the architect; the land having been otherwise disposed of,
it was held that he could not recover for his services (¢).
contract was made between the captain of a ship and a sailor
that the latter should be paid a fixed sum for his services
during a voyage, provided he proceeded, continued, and did
his duty as mate during the voyage ; the sailor having died
during the voyage, it was held that no wages could be
claimed either under the contract or for the services per-
formed (d). The plaintiff undertook to repair certain articles
and make them complete for £10, and did certain repairs on
them, but failed to make them complete; it was held that
he was not entitled to claim any remuneration for the work
done (e).

Upon this principle, where by charterparty the charterer
covenants to pay freight for goods to be delivered at a
certain place, and the ship is wrecked before arrival there,
he cannot be charged with freight pro ratd itineris upon a
delivery and acceptance of the goods at the place of the
wreck (f). Buta new contract to pay freight pro ratd may be
inferred from an acceptance of the goods at an interme-
diate port instead of the destined port of delivery, if such

ie Green y. Mules, 80 L. J.C. P.  Dods,8 East, 300; Jesse v. Roy, 1 C.
M. & R. 316; and see Hulle v.
*i) Read v. Rann, 10 B.& 0.488. Heightman, 2 East, 145.
(ce) Moffatt v. Laurie, 15 C. B. (e) Sinclair v. Boules, 9B. &C.
583; 24L.3.C.P.5 92.
(d) Cutter v. Powell 6 T. R. 320; (f) Cook v. Jennings, 7 T. R. 381;
8. C. 2 Smith’s L. C.1; Appleby v. Hunter v. Prinsep, 10 East, 378, 394.

p2
36 CHAP. I. FORMATION OF CONTRACTS.

acceptance was voluntary and the further carriage of the
goods was intentionally dispensed with (a).

Wherecon- Where a contract after part performance is rescinded by
aes he express agreement of the parties, the liability in respect of

agreement 1 ¢ ferred to the
oe Coat the part performance must, in general, be re

perform. agreement for rescission (0).

ance.

pal Where an executory contract has been completely per-
upon com. formed and there is left only a present money debt payable
plete per-

formance of UNder it, the law implies in point of form a new contract to
execry pay such debt as arising upon the executed consideration.
tion. The object of this implication seems to be to enable the
plaintiff for the purposes of pleading and procedure to
state his claim in the concise and general form of an tile-
bitatus count, as “for money payable for goods sold and
delivered ;” or “for goods bargained and sold;” or “for work
done and materials provided at the request of the plaintiff,”
etc., as the case may be, reserving the particular circum-
stances of the debt, if disputed, to be given in evidence (c).
The contract thus implied has been explained as follows :
—‘ The principle on which the cases have been decided, as
to the proper mode of declaring where the original contract
has been executory, but the period of credit has expired or
condition has been performed, is not that the law alters the
mode of declaring on the original contract and states it not
according to the fact, but that it conclusively infers that
simple contract to pay the price for goods sold and de-
livered, which would arise upon the facts of a sale and de-
livery without any special circumstances accompanying
them. He who seeks to disturb that inference must not
content himself with merely showing conditions or other
special provisions forming part of the contract at the time
of its being entered into; he must show them in existence
and operation at the time of action brought; if not, they

(a) Vlierboom vy. Chapman, 13 M. (c) 2 Wms. Saund. 349d, (2);
& W. 230, 238; and see Ritchie v. Streeter vy. Horlock, 1 Bing. 34, 37 ;
‘Atkinson, 10 East, 295, as to freight Stone v. Rogers, 2M. & W. 443, 448 ;
pro raté for an incomplete cargo. Lucas v. Godwin, 3 Bing. N. C. 737 ;

(2) See Grimman vy. Legge, 8 B.& See The Common Law Procedure Act,
C. 324; James v. Cotton, 7 Bing. 1852 (15 & 16 Vict. vc. 76), s. 59,
266. Sched. B.
SECT. I, § 1. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 37

may be struck out of consideration and the contract treated
as originally simple, unconditional, and executed” (a).

The following cases will serve as examples of the operation
of this principle :—The plaintiff agreed to give a horse, war-
ranted sound, in exchange for a horse of the defendant and
asum of money; the horses were exchanged, but the de-
fendant refused to pay the money on the ground that the
plaintiff’s horse was unsound ; it was held that the plaintiff
might claim the money as payable for a horse sold and de-
livered (b). The plaintiffagreed to let the defendant a mu-
sical box, on the understanding that, if it was damaged, the
defendant was to have it and pay a certain sum of money;
the defendant received the box accordingly, and it was
damaged while in his possession; it was held that the
plaintiff was entitled to claim the agreed sum as payable
for goods sold and delivered (c). The plaintiff contracted
with the defendant “to build an engine of 100-horse power
for the sum of £2500, to be completed and fixed by the
end of December,” and after completing the contract
sought to recover the price in an action for goods sold and
delivered; it was held that he could not recover, because
he had misdescribed the consideration of the debt. The
Court, in giving judgment, said, “ Whenever a simple con-
tract is executed, and terminates in a debt which it is the
duty of the defendant to pay tnstanter, it is no doubt the
subject of an indebitutus count; but the executed contract
must be described properly, and the question here is whether
it is proper to describe this as a debt for goods sold and de-
livered. We think not. The proper form of count is in in-
debitatus assumpsit for work, labour and materials” (d).

A similar implication does not arise upon a contract
created by deed or by record (e).

The promise implied from an executed consideration, The pr
whether implied from the request to perform the considera- plied in
; : ‘ tract
tion, or from the acceptance of the consideration performed, anne.

upon exe-
(a) Beverley v. Lincoln Gas Co., (d) Clark y. Bulmer, 11 M. & W. cuted con-
6 A. & EB. 829, 836. 243. siderations.
(b) Sheldon v. Cox, 3 B. & C. 420. (e) See 2 Wms. Saund. 349 4, (2) ;

(c) Bianchi y. Nash, 1 M. & W. Mathew v. Blackmore, 1 H.&N. 762 ;
545. 26 L. J. Ex. 150.
33 CHAP. I. FORMATION OF CONTRACTS.

in the absence of any express agreement respecting the
price, is a promise to pay so much money as the executed
consideration was worth, quantum meruit or quantum valebat,
according to the explanation contained in the following pas-
Quantum sage from Blackstone’s Commentaries (a) :—“ If I employ a
meruit. — nerson to transact any business for me, or perform any work,
the law implies that I undertook or assumed to pay him so
much as his labour deserved. And if I neglect to make him
amends, he has his remedy for this injury by bringing his
action on the case upon this implied asswmpsit.—But this
valuation of his trouble is submitted to the determination
of a jury, who will assess such a sum in damages as they
think he really merited. This is called asswmpsit on a quan-
tum merutt.
Quantum There is also an implied assunvpsit on a quantum valebat,
walebat. hich is very similar to the former, being only where one
takes up goods or wares of a tradesman without expressly
agreeing for the price. There the law concludes that both
parties did intentionally agree that the real value of the
goods shall be paid; and an action on the case may be
brought accordingly, if the vendee refuses to pay that
value.” ;

Cuap. I. Suct. I. § 2. Conrracts Imprrep in Law.

Contracts Implied in Law ...... 38 | Account stated...............ccceeeee 68
Money paid ..........eecseseeccn eee 40 | Foreign Judgments, etc............. 73
Money received ............00000 47

Gontiaatg Simple contracts arising independently of agreement, or

implied in

tae contracts implied in law include those transactions affecting

the two parties, other than agreement between them, upon
which the law operates by imposing a contract, that is, a lia-
bility on the one side and correlative right on the other.
The transactions between two parties, other than agree-
ment, which give rise to contracts, may be described ge-
nerally as importing that some undue pecuniary inequality
exists in the one party relatively to the other which justice

(a) 3 Bl. Com. 162, 163; and see 2 Wms. Saund. 122, 122a.
SECT. I. § 2. CONTRACTS IMPLIED IN LAw. 39

and equity require should be compensated, and upon which
the law operates by creating a debt to the amount of the
required compensation (a).

In transactions of this kind the law not only imposes a Promises
debt on the one party and creates a right in the other, but nee 7
further implies a promise to pay the debt, by means of
which implied promise the contracts thus created are assimi-
lated in form to the contracts founded on agreement and con-
taining a real promise, and are brought within the same
rules of law and are protected by the same form of action,
namely, assumpsit (b). It is necessary to distinguish the
contracts implied in law from the implied contracts described
above as founded on real agreements and promises. In the
former case the promise in point of fact is a pure fiction
which has no existence in reality. In the latter case the pro-
mise, though not expressed in words, is inferred as an ac-
tual fact from the acts or circumstances of the party on whom
it is charged (c).

Before the Common Law Procedure Act, 1852, the pro-
mise implied in law, enabling the plaintiff to sue in the form
of an action on the promise called an action of asswmpsit,
was of great practical importance. Different forms of ac-
tion could not then be joined in the same declaration ; an ac-
tion of debt could not be joined with an action of asswmpsit ;
but by means of the promise implied in law to pay the debt
the plaintiff might sue for his debt in an action of assumpsit,
in which action he might join a claim upon any other simple
contract. The procedure under the two forms of action of
debt or assumpsit was also different, particularly in respect
of the form of the judgment, and the plaintiff by means of
the promise implied in law was able to choose the form of ac-
tion which was most convenient for his particular purpose.

(a) See Moses v. Macferlan, 2 Burr.
1005, 1008, 1012; Smith v. Jones,
11 L. J. C. P. 99, 100; 6 Jur. 283,
284; per Maule, J., Lewis v. Campbell,
8 C. B. 541, 545. Contracts implied
in law are said to correspond with
the class of obligations in the Ro-
man law described as arising quasi ex
contractu. See Austin’s Jur., vol. iil.
p. 184, 221; Maine’s Ancient Law,

p. 344; As to the transactions in-
cluded in the term Quasi-Contracts,
see Mackeldey, § 457; Warnkenig,
§ 720.

(6) Moses v. Macferlan, supra ;
Slade's case, 4 Rep. 92 6; 2 TLyans’s
Pothier, 406 ; 3 Blackstone, Com. 159,
162.

(ce) See ante, p. 11.
Money
paid.

40 CHAP. I. FORMATION OF CONTRACTS.

By the amendments of the Common Law Procedure Act,
1852 (15 & 16 Vict. c. 76), all the practical importance at-
tending the different forms of action has been removed :
s. 3 renders it unnecessary to mention any form of action in
the writ of summons; s. 41 enables causes of action of
whatever kind by and against the same parties to be joined
in the same suit; s. 49 prohibits all immaterial and ficti-
tious statements in pleadings, such as “ the statement of pro-
mises which need not be proved;” ss. 98, 94, 95 extend the
same conveniences as to final judgment and the assessment
of damages to all causes of action to which they can be ap-
plied. The combined effect of these enactments is that the
substance of the cause of action in all cases is considered
irrespectively of the form in which the action is framed ; and
the doctrine of implied promises has no longer any practical
application.

Contracts implied in law may be classed under the follow-
ing general descriptions :—

Contracts arising from money paid by the plaintiff for the
use of the defendant.

Contracts arising from money received by the defendant
for the use of the plaintiff.

Contracts arising from previously existing debts :—as
upon executed considerations,—upon accounts stated,—upon
foreign judgments and other debts created by foreign law.

The payment of money by the plaintiff for the use of the
defendant, under certain circumstances and upon certain
occasions, creates a contract in law to repay the amount as a
debt, independently of any agreement between the parties to
that effect.

Where there has been an express request made by the de-
fendant to the plaintiff to pay the money for him, importing
a promise on the part of the defendant to repay the amount
to the plaintiff, and the money is paid in pursuance of the
request, the transaction then involves an actual agreement
and produces a contract in the form of a consideration
executed upon request («). Where no request in fact exists,

(a) Ante, p. 25.
sect. I. § 2. CONTRACTS IMPLIED IN LAW. 41

nor any agreement in fact respecting the payment which
gives rise to the contract, the law implies a fictitious request
on the part of the defendant for the plaintiff to make the
payment. By means of the request thus implied in law, the
plaintiff is enabled in pleading to state his claim in the
compendious form above mentioned of “ money paid by the
plaintiff for the defendant at his request,’’ instead of stating
in detail the circumstances of the payment of the money, which
raise in law the obligation of repayment ; and it is laid down
as a general rule that ‘in every case in which there has been
a payment of money by a plaintiff to a third party at the
request of the defendant, express or implied, on a promise,
express or implied, to repay the amount, this form of action
is maintainable” (a).

This contract is created in law upon an implied request Compul-
without any request existing in fact, where the plaimtiff eee
has been compelled by law to pay, or being compellable by or atitey
law has paid money which the defendant was ultimately of another.
lable to pay, so that the latter obtains the benefit of the
payment by the discharge of his lability; under such
circumstances the defendant is held indebted to the plain-
tiff in the amount (b). Accordingly, an executor who was
compelled to pay legacy duty, for which the legatee was
ultimately liable, was held entitled to recover the amount
from the legatee as money paid for his use (c). An auc-
tioneer, who was compelled to pay the auction duty upon the
sale of an estate, was held entitled to recover the amount
from his employer as money paid for his use (d). Where a
person has employed a broker to purchase shares for him,
and neglected to provide for the payment of the price, in
consequence of which the broker has been compelled ac-
cording to the usage of the share market to pay to the seller
the price, or the difference upon a re-sale, or the calls due

(a) Brittain v. Lloyd, 14M. & W.
762, 773; adopted in Westropp v.
Solomon, 8 C. B. 345, 370; Lewis v.
Campbell, 8 C. B. 541, 547.

(b) Jefferys v. Gurr, 2 B. & Ad.
833; Grissell v. Robinson, 3 Bing.
N. 0.10, 15 ; Spencer v. Parry, 3 A.
& E. 331, 338; Pownal v. Ferrand,
6B. & C. 439, 443, 445; 9D. & R.

603 ; Cross v. Cheshire, 7 Ex. 48, 45;
Hales v. Freeman, 1 B. & B. 391,
359.

(c) Foster v. Ley, 2 Bing. N.C.
269 ; Bate v. Payne, 13 Q. B. 900;
Hales v. Freeman, 1 B. & B. 391.

i (ad) Brittain v. Lloyd, 14M. &W.
62.
42 CHAP. I. FORMATION OF CONTRACTS.

upon them, as the case may be, the broker may recover the
amount so paid from his employer as money paid for his
use (a). The plaintiff employed an attorney to draw a lease
granted by him to the defendant, and was compelled to pay
the charges of the attorney upon his retainer ; the defendant
as lessee, being bound by custom to pay the expenses of the
lease, was held liable to the plaintiff for the amount as
money paid for his use (b). The plaintiff gave his accep-
tance to the defendant as security for a debt which he after-
wards discharged under a composition with his creditors ;
being afterwards compelled to pay the amount of the bill to
an indorsee, the plaintiff was held entitled to recover the
amount from the defendant as money paid to his use (¢).
Where the master of a ship has raised money on bottomry
bonds for the repair of the ship, hypothecating the cargo,
which he is entitled by maritime law to do, and the owner
of the goods has been compelled to pay money to the
holder of the bonds in order to redeem his goods, the owner
of the goods may recover the amount so paid from the ship-
owner, who was bound to deliver the goods on payment of
freight only (d). By the French law the shipowner may
free himself from all engagements of the master by the aban-
donment of the ship and freight, so that in the case of a
French ship and cargo charged with bottomry bonds, the
shipowner having discharged his liability by abandoning
the ship and freight to the bondholder, was held not liable
to the shipowner for the money paid by him to redeem his
goods from the bonds (e).

Teton Where a surety has been compelled to pay the debt which
nee he has guaranteed, the principal debtor is bound to repay

him the amount (f). Thus, if the indorser of a bill is com-
pelled to pay it by default of the acceptor, he may recover

(a) Pollock v. Stables, 12 Q. B.
765; Bailey v. Wilkins, 7 C. B. 886 ;
Smith v. Lindo, 5 C. B. N.S. 587.

(b) Grissell vy. Robinson, 3 Bing.
N.C. 10.

(c) Hawley v. Beverley, 6 M. & G.
221.

(d) Duncan v. Benson, 1 Ex. 537 ;
3 Ex. 644,

(e) Lloyd v. Guibert, 6 B. & 8.
100; 38 L. J. Q. B. 241; 1 L. Rep,
Q. B. 115.

(f) Per Buller, J., Toussaint vy.
Martinnant, 2 T. R. 100, 105; per
Lord Kenyon, C.J., Evall vy. Part-
ridge, 8 T. R. 308, 310; Alerander
vy. Fane, 1M. & W. 511.
SECT. 1. § 2. CONTRACTS IMPLIED IN LAW. 43

the amount from the acceptor as money paid to his use (a).
So, where the plaintiff, having accepted a bill of exchange
for the accommodation of the defendant, has been compelled
to pay it, he may recover the amount from the defendant as
money paid for his use (6). And where the plaintiff, having
accepted a bill in favour of the defendant for a considera-
tion which has failed, has been compelled to pay it, he may
recover the amount as money paid for the defendant (c).
But where the plaintiff drew and indorsed a bill of exchange
for the accommodation of the acceptor, and paid it to the
holder without having received notice of dishonour, under
which circumstances he was not compellable at law to do so,
it was held that he could not recover the amount from the
acceptor as money paid to his use (d).

Where several co-contractors are jointly liable for a debt ae
which should be paid by all in equal shares, and one is com- tween co-
pelled to pay the whole debt ora part greater than his share, 4"
he is entitled to recover from each of the others a contribu-
tion or share of the amount paid by him beyond his own
share (e). So, where several persons are jointly liable as co-
sureties for the debt of another, and one of them is called
upon to pay more than his share, he has a right to claim
contribution from the others (f). The plaintiff drew and
the defendant indorsed a bill of exchange for the accommo-
dation of the acceptor; the plaintiff, having been compelled
to pay the whole amount, was held entitled to sue the de-
fendant for contribution (g). Upon the death of one of
several co-contractors, the joint liability to the creditor rests
upon the survivors only and not upon them jointly with the
representative of the deceased, but the liability of each to
contribute between themselves is not thereby increased to a
greater amount than his original share (h) ; and it seems

(a) Pownal v. Ferrand, 6B.&C. 287; Done v. Walley, 2 Fx. 198.
439. (f) Davies v. Humphreys, 6 M. &

(8) Garrard v. Cottrell, 10 Q. B. W.153; Kemp v. Finden, 12 M. &
679; Driver v. Burton, 17 Q. B.  W. 421.

989; 21 L.J. Q. B. 157. (g) Reynolds v. Wheeler, 10 C. B.
(ce) Hooper v. Treffry, 1 Ex. 17. N. 8.561; 30 L. J. C. P. 350,
(d) Sleigh v. Sleigh, 5 Ex, 514. (A) Batard v. Hawes, supra ; and

(e) Holmes v. Williamson,6 M. & see Cowell v. Edwards, 2B. &P.
8.168; Edger v. Knapp,5M.& G. 268.
758; Batard y. Hawes, 2 E. & B.
44 CHAP. I. FORMATION OF CONTRACTS.

that an action for contribution would lie against the repre-
sentative of the deceased contractor (a). Between joint
wrongdoers, one of whom has been compelled to pay the
whole damage, no right of contribution arises (}).
Payment Where the plaintiff, whose goods were on the defendant’s
Pane for premises, has been compelled under a distress or threat of a
pari of distress to which his goods were liable to pay the rent of
the defendant’s premises in order to release his goods, he
may recover the amount so paid as a debt to him from the
defendant (c); but where the plaintiff’s goods were seized
as a distress for the defendant’s rent and sold by the land-
lord under the distress, it was held not to be equivalent to
a payment of money by the plaintiff so as to entitle him to
charge the defendant with money paid to his use (d). Where
the plaintiff’s goods, standing on the defendant’s premises,
were seized for a tithe rentcharge, which was charged on
the land only and not a personal liability of the defendant,
it was held that the plaintiff had no claim against the defen-
dant (e). So, where the plaintiff and the defendant were
underlessees of separate parts of premises, the whole of
which were held under one original lease at an entire rent,
the plaintiff, having been compelled to pay the whole rent
under the original lease under threat of distress, was held
not entitled to claim a proportionate part against the defen-
dant, the money not having been paid to his use (/).
Payment A tenant in the occupation of premises, who has been
Se compelled by his superior landlord, or other incumbrancer
a Se having a title paramount to that of his immediate landlord,
to pay sums due for ground rent or other like charges, is
considered as authorized by his landlord to make such pay-
ments out of the rent, and may treat the amount as paid in
discharge of so much rent due or accruing due (g). Such

(a) Ib.; Prior vy. Hembrow,8 M. 444, 448; Hancock v. Caffyn, 8 Bing.

& W. 873. 358.
(b) Merryweather v. Nixan, 8 T. (e) Griffenkoofe v. Daubuz, 5 BE. &
R. 186; and see Shackell v. Rosir, B. 746; 25 L. J. Q. B. 237.
2 Bing. N. C. 634, 648 ; Colburn v. (f) Hunter vy. Hunt, 1 ©. B. 300.
Patmore, 1 C. M. & R. 73, 83. (9) Sapsford y. Fletcher, 4 T. Ry
(e) Exall y. Partridge, 8 T. R. 511; Taylor v. Zamira, 6 Taunt.
308. 524; Dyer v. Bowley, 2 Bing. 94;

(d) Moore v. Pyrke, 11 East, 52; Carter v. Carter, 5 Bing. 406; Jones
and see Rodgers v. Maw, 15 M.& W.  v. Morris, 3 Ex. 742.
SECT. I. § 2. CONTRACTS IMPLIED IN LAW. 45

payments, if incapable of being treated as actual pay-
ment of rent, would entitle the tenant to a debt against his
landlord for money paid to his use (a). Some taxes, as
land tax, income tax, etc., it is provided by statute, if
paid by the tenant must be deducted from the next pay-
ment of rent, and if not deducted cannot afterwards be re-
covered (b).

The plaintiff delivered a bill of exchange accepted by him
to the defendant to be held for a special purpose, and the
defendant in contravention of that purpose negotiated the
bill for his own use, and the plaintiff was compelled by
the holder to pay it; he was held entitled to recover the
amount as money paid to the use of the defendant (c). The
plaintiff and the defendant being in partnership, the de-
fendant gave a promissory note, signed in the partnership’s
name, for a private debt of his own, and the plaintiff was
sued upon the note and compelled to pay it; it was held
that he might recover the amount from the defendant in an
action for money paid to his use (d). Where the defendant,
being a creditor of the plaintiff, has obtained bills from him
upon the consideration of assenting to a composition be-
tween the plaintiff and his creditors (which transaction is
held to be illegal and void, as being in fraud of the other
creditors), and the plaintiff has been compelled to pay the
bills in the hands of indorsees, he is held entitled to recover
the amount as money paid for the defendant; the payment
having been compelled by the illegal transaction, in which
though the plaintiff is involved as a party, he is not con-
sidered as in pari delicto with the defendant (e). The plain-
tiff, a carrier, delivered to the defendant by mistake goods
which had been sold and consigned to another, and in con-
sequence of the defendant wrongfully detaining the goods,
the plaintiff was compelled to pay the value of them ; it was

(a) See Graham y. Allsopp, 3 Ex. (c) Bleaden v. Charles, 7 Bing.
186,198; Baker v. Greenhill, 3 Q. 246; and see Asprey v. Lery, 16
B.148; Dawson v. Linton, 5 B.& M.& W.851.

Ald. 521. (d) Cross v. Cheshire, '7 Ex. 43,

(6) Andrew v. Hancock, 1 B. & (e) Smith v. Cuff, 6M. & 8. 160;
B. 87; Denby v. Moore,1 B.& Ald. Bradshaw v. Bradshaw, 9 M. & W.
130; Cumming v. Bedborough,15 M. 29; Horton v. Riley, 11 M. & W.
& W. 438. 492.

Payment
compelled
by wrong
or fraud of
another.
46 CHAP. I. FORMATION OF CONTRACTS.

held that the plaintiff might recover the amount so paid as
money paid for the defendant (a). So, where goods were
entrusted to the plaintiff for sale, and the defendant obtained
possession of them and wrongfully detained them, so that
the plaintiff was compelled to pay the price, it was held that
he might recover the amount as money paid for the defen-
dant’s use (0).

Voluntary A payment made voluntarily and without any legal liability
payments ov compulsion, in discharge of the debt or liability of another,
raises no implied contract for repayment (c).
Payment Where the plaintiff has been compelled to make the pay-
ie ment by his own wrongful act, he cannot claim the amount
ful act of from the defendant as having had the benefit of the payment.
cee Thus, where an officer having the custody of a prisoner for
debt suffered him to go at large, in consequence of which he
was obliged to pay the creditor himself, it was held that
he could not recover the amount from the debtor (d).
Paymentin No contract is implied in law from a payment made in
dischargeof discharge of a liability of another, which is merely a moral
gation of liability and not recognised in law (e).
cen Where the plaintiff has paid money which the defen-
bie dant is under liability to pay only by virtue of an express
defendant agreement with the plaintiff to that effect, the defendant
plaintift. can be charged only upon his express agreement, and not
upon an implied debt for money paid to his use (jf); but
the express agreement may be equivalent to an express
request to the plaintiff to pay the money, in which case the
payment may be charged to the defendant as money paid at

his request (g).

Payment This contract can only arise in respect of the payment of
must be of : .
money or Money, or what is equivalent to the payment of money.

its equiva-

lent (a) Brown y. Hodgson, 4 Taunt.188; 514, cited ante, p. 43.
and see Sills vy. Laing, 4 Camp, 81. (d) Pitcher v. Bailey, 8 East, 171.
(6) Longchamps v. Kenny, 1 Doug. (e) Atkins vy. Banwell, 2 East, 505;
437. and see ante, p. 27.
(c) Per Lord Kenyon, Eradl v. (f) Spencer v. Parry, 3 A. & Ey

Partridge, 8 T. R. 308, 310; per 331; Lubbock v. Tribe, 3 M. & W.
Bayley, J., Pownal v. Ferrand,6 B. 607.

& C. 489, 443; Bates v. Townley, (9) Lewes v. Campbell, 8 C.B. 541;
2 Ex. 152; Sleigh v. Sleigh, 5 Ex. and see ante, p. 25.
sect. 1. § 2. CONTRACTS IMPLIED IN LAW. AT

Where the plaintiff’s goods were seized as a distress for the
defendant’s rent and sold under the distress in discharge of
that liability, it was held not to constitute a payment of
money to the use of the defendant (a) ; but where the plain-
tiff’s goods were seized for the defendant’s rent, and he paid
the amount to redeem them, it was held to be recoverable as
money paid (b). Executing a covenant to pay money for
the defendant is not equivalent to payment so as to support a
claim for money paid for his use (c). Discharging the de-
fendant’s debt by giving a new security for it is not equiva-
lent to payment of money for the defendant (d). A promis-
sory note given and accepted as payment may be equivalent
to the payment of money (e).

The receipt by the defendant of money to which the plain- Money re-
tiff is entitled, under certain circumstances, creates a debt
recoverable in law, independently of any agreement between
them to that effect. The contract thus raised is technically
described in law as a debt “for money received by the de-
fendant for the use of the plaintiff;’? and the plaintiff in
pleading may state his claim generally in this form, and
need not state the special circumstances from which it
arises, reserving them to be disclosed in proof of his case, if
required (jf).

Contracts arising from agreement also frequently result in
a receipt and holding of money by the defendant for the use
of the plaintiff, as, for example, where the defendant has
been engaged by the plaintiff as agent to receive money and
to account for and pay over the amount received, and has
received money by virtue of his employment, he is bound
by the terms of his engagement to pay over to the plaintiff
the money received ; but such money being in fact received
and held by him for the use of his employer, his lability
may be concisely described in law as for money received

(a) Moore v. £yrke, 11 East, 52. (d) Taylor v. Higgins, 3 Kast, 169 ;
(6) Hevaliv. Partridge,8T.R.308; Maxwell vy. Jameson, 2 B. & Ald.
and see as to money levied under a_ 51.
Si. fa., Rodgers v. Maw, 15 M. & W. (e) Barclay v. Gooch, 2 Esp. 571.
444. (f) Moses vy. Macferian, 2 Burr.
(ce) Power v. Butcher, 10 B.& OC. 1005, 1010; Owen v. Challis, 6 C.B.
329. 115.
Money of

the plaintif

obtained by
the defen-
dant by
wrongtul or
fraudulent
means,

48 CHAP. I. FORMATION OF CONTRACTS.

by the defendant for the use of the plaintiff, without en-
tering into the particulars of the contract under which it was
received (i).

The following are some examples of this contract being
implied in law from circumstances independent of agree-
ment :—

Where the defendant has wrongfully taken the plaintiff’s
money or the plaintiff’s goods which he has turned into
money, or where the defendant has obtained the plaintitf’s
money by means of a fraud, the plaintiff has a remedy by
action for the wrong done to him, as by an action of trespass
for taking his goods or of trover for the recovery of them,
or by an action on the case for the fraud committed. The
plaintiff, however, is not always restricted to claiming redress
in the form of an action for the specific wrong done, but he
may in general, if he pleases, waive the wrong done, and
claim the amount received by the defendant as a debt for
money received for his use. The latter form of relief, while
it may sometimes be more convenient for the plaintiff, is
more favourable to the defendant, as it restricts his liability
to the money actually received, and excludes the claim for
unliquidated damages for the wrong committed by him; it
also admits the defence of set off, which cannot be pleaded
to a claim for unliquidated damages (b). If the plaintiff
waives the wrongful character of the transaction by recover-
ing the money received under it as a debt, he thereby pre-
cludes himself from taking advantage of it as a wrong.
Thus, he cannot accept the proceeds of his goods which have
been wrongfully taken and sold, as a debt, and likewise
claim damages for the injury done in the wrongful taking
and sale (c). Moreover, he cannot waive the wrong in part
only, so that having accepted of the defendant part of the
price of goods which had been wrongfully taken and sold by
the latter, he is bound to treat the balance as a debt like-
wise (d). A mere claim to a debt in respect of the value
of goods wrongfully obtained, if not acquiesced in by the

(a) See ibid. Taunt. 112.

(b) See Moses v. Macfei lan, 2 Burr. (ec) Brewer v. Sparrow, 7 B. & C.
1005, 1010; Hambly v. Trott,1Cowp. — 310.
371, 376 ; Lindon v. Hooper, 1 Cowp. (d) Lythgoe v. Vernon, 5 H.& N,

414, 419; Leightly v. Clouston, 1 180; 29 LL. J. Ex. 164,
SECT. I. § 2. CONTRACTS IMPLIED IN LAW. 49

party who has wrongfully obtained them, does not preclude
the owner from claiming the goods specifically (a).

The defendant having without any right taken and car- Money
ried away the plaintiff’s money, it was held that the plaintiff (ome foe,
might waive the wrong and recover the money as received {i plain-
by the defendant for his use (b). So, money feloniously
stolen creates a debt from the thief to the owner which
may be thus recovered, though on grounds of public policy
the felony must be prosecuted criminally before civil pro-
ceedings can be commenced (c).

Where the defendant obtained money from the plaintiff Money

obtained

by false pretences (d), and where the defendant obtained the by false
plaintiff’s money from a third party by false pretences (e), PUpees,
the plaintiff was held entitled to recover it back as money
received to his use. If a person pays money to another
who demands it under a false pretence which the former
knows at the time to be false, it is said to be doubtful
whether he can recover it in a civil action (7). In such case
the party receiving it cannot be convicted of the crime of
obtaining the money by a false pretence (g).

The defendant having obtained payment of debts due to
the plaintiff under a fraudulent misrepresentation made to
the creditors that he had authority to collect them, the
plaintiff was held entitled to recover the amount as money
received to his use (i).

Where the defendant has obtained money from the plain-
tiff under a fraudulent agreement, which the plaintiff is en-
titled to avoid on the ground of the fraud, the plaintiff
upon avoidance of the agreement may recover the amount as
money received for his use (i). As, where the defendant has
obtained the plaintiff's money in payment for goods sold

(a) Falpy v. Sanders, 5 C. B. 886.

(6) Neate v. Harding, 6 Ex. 349.

(ec) See Chowner v. Baylis, 31 L.
J.C. 757 ; Stone v. Marsh, 6 B. &C.
551; Marsh v. Keating, 1 Bing. N.
C. 198.

(d) Holt v. Ely, 1 E. & B. 795; and
see Ldmeads v. Newman, 1B. & C. 418.

(e) Litt v. Martindale, 18 OC. B. 314.

(f) Per Bramwell, B., R. v. Mills,
26 L. J. M. C. 79, 80.

(g) R. v. Mills, supra.

(h) Andrews v. Hawley, 26 L. J.
Ex. 323; and see Clarance y. Mar-
shall, 2 C. & M. 495, 503.

(i) Thornett v. Haines, 15M. & W.
367; and see Campbell v. Fleming,
1A.&E. 40. As to when an agree-
ment may be avoided on the ground
of fraud, see post, Chap. I, Sect. VI,
“ Fraud.”
50 CHAP. I. FORMATION OF CONTRACTS.

by means of a fraudulent warranty, and the plaintiff has
avoided the sale on the ground of the fraud, he may recover
the money from the defendant as received for his use (4).

~~ oe . Where the defendant has wrongfully taken fees appertain-
Pace ing to the plaintiff’s office, the plaintiff, actually holding the
wrongfully

received by Ofice and being rightly entitled to the office and the fees, may
the defend- recover the amount taken as money received to his use (0).

on A mere claimant of the office who is not in possession can-
not maintain an action to recover the fees and profits taken
by the person actually in possession, in the form of money
received for his use(c). Gratuities given to the person actu-
ally performing the office cannot be recovered (d).

Money Where a third party has obtained the plaintifi’s money

ene wrongfully and paid it to the defendant, the plaintiff may

lently ob- recover the amount from the defendant, unless he received

tained from

plaintiff! by the money from the third party bond jide and under a bind-
ae ae ing contract (e). The wife of the plaintiff deposited money
pad ae belonging to her husband with the defendant, a banker, in
“the name of her son who was then an infant; the plaintiff
was held entitled to recover the amount from the banker as
received for his use, because the wife had no authority so to
dispose of the money and the contract with the bankers on
behalf of the infant was not binding (f). A third party
having taken the plaintiff’s money paid a debt of his own
with it ; it was held that the plaintiff could not recover the
amount from the creditor who had received it in discharge

of the debt (yg).

Money de- Where the defendant has wrongfully obtained the plain-
oe tiff?s goods and converted them into money, the plaintiff
Se may waive the wrong and recover the proceeds of his goods
Hee te my received for his use (h). Accordingly, stock in

(a) Street v. Blay,2 B. & Ad. 456;

(d) Boyter v. Dodsworth, 6 T. R.
Gompertz v. Denton, 1 C. & M. 207. 681

(6) Howard vy. Wood, Sir T. Jones,
126; Arris v. Stukeley, 2 Mod. 260;
Spry v. Emperor, 6 M. & W. 639;
King v. Alston, 12 Q. B. 971; Pinder
v. Barr, 47. & B. 105; Aulton v.
Roberts, 2H. & N. 432; 26 L. J.
Ex. 380.

(ce) Powel y. Milbauk, 1 T. R.
399 (d).

(e) See Calland v. Loyd,6M.& W.
26; per Parke, B., Atlee v. Back-
house, 3 M. & W. 633, 640, 648 ;
Symonds v. Atkinson, 1. H. & N.146;
25 L. J. Ex. 313.
(f) Callandv. Loyd, 6 M.&W. 26.
(9) Foster v. Green, 7H.& N. 881;
31 L. J. Ex. 159.
(4) Lamine v. Dorrell, 2 L. Raym.
secT. I. § 2. CONTRACTS IMPLIED IN LAW. 51

the funds belonging to the plaintiff having been sold by a
member of the defendant’s firm under a forged power of
attorney, and the price paid to the firm, the plaintiff reco-
vered the amount as money received to his use (a). Where
a person had wrongfully worked coal under the plaintiffs
land and sold it, after his death his administrator was held
liable for the money received by such sale (b). The plaintiff
having delivered to the defendant a bill of exchange for the
special purpose of presenting it when due and receiving
the amount and remitting it,to the plaintiff, the defendant
contrary to that purpose discounted the bill before it was
due, and applied the money to his own use; it was held that
the plaintiff had the option of bringing an action of trover
for the bill or suing for the amount as money received to
his use (c). The plaintiff’s broker having wrongfully sold
out stock of the plaintiff, it was held that the plaintiff
might sue the broker for wrongfully selling the stock con-
trary to orders, or might sue for the proceeds of the stock
received by the broker, as a debt (d).

A sheriff’s officer having wrongfully seized the goods of
the plaintiff under a ji. fa. against a third party, and having
sold the goods and received the price, the plaintiff was held
entitled to recover the amount as money received for his
use (¢). A sheriff took in execution goods of a bankrupt
which had vested in the assignees by reason of a previous
act of bankruptcy, and sold them after notice of the act of
bankruptcy ; the assignees were held entitled to recover the
price as money received for their use (7). The value of the
goods after the seizure, but before sale, could not be re-
covered as money received (y); but where the goods were
taken by the judgment creditor under a bill of sale from

1216 ; Oughton v. Seppings, 1B. e (e) Oughton v. Seppings, 1 B. &

Ad. 241 ; Rodgers v. Maw, 15 M. Ad. 241
W. 444, "448 ; and see Allanson v. (f) Notley v. Buck, 8B. & C. 160;
Atkinson, 1M. & 8. 583. Balme vy. Hutton, 9 Bing. 471; Gar-

(a) Stone v. Marsh, 6 B. & C. land v. Carlisle, 4 Bing. N.C. 7;
551; Marsh v. Keating, 1Bing.N.C. and see 12 &13 Vict. c. 106, 8.133;

198. Edwards v. Scarsbrook, 3 B. & 8.
(6; Powell v. Rees, 7 A. & EH. 426. 280; 32 L. J. Q. B. 45.
(c) Parker v. Norton, 6 T. R. 695. (g) See Thurston v. Mills, 16 East,
(4) Parker v. Crole, 5 Bing. 63. a Swain vy. Morland, 1B. & B.
3

E2
52 CHAP, I, FORMATION OF CONTRACTS.

the sheriff for a certain sum after an act of bankruptcy, the
assignees were held entitled to recover that sum, though no
money actually passed (a).

The defendant fraudulently induced the plaintiff to sell
goods to another who could not pay for them, for the pur-
pose of reselling them and paying over the proceeds to the
defendant ; the defendant was held liable for the proceeds of
the sale as money received for the plaintiff’s use (0).

Proceedsof Where a third party has wrongfully taken the plaintiff’s

Se iGliy goods and transferred them to the defendant (such goods

wee by not being negotiable securities and being transferred other-

party. wise than by a sale in market overt), and the defendant has
converted them into money, the plaintiff may charge him
with the amount as money received for his use (v). The
plaintiff consigned goods to a broker for sale, who instead
of selling them pledged them with the defendant, which
he had no right to do, and the defendant sold them to
realize his advances; it was held that the plaintiff might
recover the proceeds of the goods from the defendant as
money received (d). The plaintiff had lost a check on a
banker, which was found by a third party and transferred
to the defendant in payment of goods, who presented it to
the bankers and received the amount, the check being five
days overdue at the time when the defendant received it;
it was held that he had uo title to it, and that the plaintiff
might recover from him the amount as money received for
his use (e).

Money ob- Where money has been obtained by the defendant from
tained from

the plainti the plaintiff by violence or threats of violence, or by any
by compul- kind of compulsion or oppression sufficient to render the
payment involuntary, the plaintiff may recover the amount
as a debt for money received for his use.
Money ob- Money procured by the defendant from the plaintiff by
tained froin z c i
theplaintif duress to his person, as by imprisonment or threats, also
by duress money obtained by duress of goods or other property, that
y ye 8 property,
(a) Reed vy. James, 1 Stark. 134. and see Symonds v. Atkinson, 1 H. &
(b) Abbotts vy. Barry, 2B. & B. N. 146; 25 L. J. Ex. 313.
369; and see per Maule, B., Selway (d) Graham v. Dyster, 6 M. & 8S.
y. Fogg, 5 M. & W. 83, 84. 1; Queiroz v. Trueman, 3 B. & C. 342.
(c) Glyn v. Baker, 13 Fast, 509; (e) Down v. Halling, 4B. & C.330.
SECT. I. § 2. CONTRACTS IMPLIED IN LAW. 53

is to say, by wrongfully taking or withholding the goods or to his per-
other property from the owner or by threatening his pro- eae
perty with injury, may be recovered as money received for
his use (a). The plaintiff having pawned some plate to the
defendant offered to redeem it, tendering £4, being the
amount due upon it ; but the defendant refused to deliver the
plate unless the plaintiff paid £10, and the plaintiff paid
£10 and took the plate, and sued the defendant for the ex-
cess in the payment; the Court said, “This is a payment by
compulsion ; the plaintiff might have such an immediate
want of his goods that an action of trover would not do his
business. We must take it he paid the money relying on
his legal remedy to get it back again” (0).

* The defendants, common carriers, refused to deliver the
plaintif’s goods which they had carried for him except on
payment of an excessive charge, which he paid to regain
possession of his goods; the plaintiff was held entitled to
recover the excess above the fair charge as having been ob-
tained by the wrongful detainer of his goods (c). So, a
shipowner having detained goods which he had carried
under an unfounded claim for freight, the owner of the
goods, having paid the freight to recover the goods, was held
entitled to recover the amount in an action for money
received (cd).

If a mortgagee claims more than is due upon a mortgage
under threat of a sale, and the mortgagor in order to pre-
vent a sale and to recover the property pays the whole
amount claimed, he may recover the amount paid beyond
what is due as money received by the mortgagee for his
use (ec). So, where a mortgagor paid to the mortgagee a
sum of money beyond what was due under the mortgage,
in order to obtain the execution of an assignment of the

& Exeter Ry. Co., 4 H. & N. 33;

(a) Shaw v. Woodcock, 7 B. & C.
28 L.J. Ex.169; Baxendale v. East-

73; Atlee v. Backhouse, 3 M. & W.
633, 650. See per Lord Kenyon,
Fulham y. Down, 6 Esp. 26, 2, cited
by Tindal, C.J., Valpy v. Manley, 1
C. B. 594, 603; and see post, Chap.
I, Sect. VI, ‘‘ Duress.”

(b) Astley v. Reynolds, Str. 915.

(c) Ashmole v. Wainwright, 2 Q.
B. 837; and see Garton v. Bristol

ern Count. Ry. Co.,4.C. B. N. 8. 63;
27 L. J. C. P. 187; Baxendale v.
Great Western Ry. Co., 32 L.3.C.P.
225; 33 2b. 197.

(d) Tamvaco v. Simpson, 19 0. B.
N.S. 453; 341. Jd. ©. P. 268.

(e) Close v. Phipps,’7 M. & G. 586.
Money ob-
tained | by
oppression.

Money ob-
tained by
compulsion
of legal
process.

54 CHAP. I. FORMATION OF CONTRACTS.

mortgage which the mortgagee had agreed to make, it was
held that he might recover the amount (a). A mortgagee
by delivering the title-deeds to his attorney cannot give
him a lien for his charges as against the mortgagor, and if
the attorney asserts such lien, the mortgagor, having paid
the demand in order to regain his deeds, may recover the
amount from the attorney (0).

Money paid to redeem goods wrongfully detained is
recoverable from the person so obtaining it, although he
acted as an agent in the transaction and has paid the
amount over to his principal (c).

Where there is any other consideration for the payment
besides the delivery of the goods detained, as the compro-
mise of some doubtful or uncertain claim to the goods, the
payment is made upon a valid agreement and the money
cannot be recovered back (d). An agreement induced by
duress of goods cannot be avoided merely on the ground of
such duress (e).

Money obtained by a creditor from his bankrupt debtor
as the consideration for giving his concurrence to the cer-
tificate (f) ; money obtained by a creditor from his insolvent
debtor as the consideration for executing a composition
deed (g) ; money obtained from the defendant in a penal
action as the consideration for withdrawing the action (h),
are considered as obtained by the exercise of oppression
and are recoverable as money received for the use of the
party paying. In the above cases the payments were made
for an illegal object, but the defendants, having acted under
compulsion, were held nevertheless entitled to recover (").

Money. which has been paid under the compulsion of legal
process, cannot, in general, be recovered back in a new ac-

(f) Smith v. Bromley, 2 Doug.

(a) Fraser v. Pendlebury, 31 L. J.
C. P.1.

(b) Pratt v. Vizard, 5 B. & Ad.
808 ; Wakefield v. Newbon, 6 Q. B.
276.

(ce) Snowdon v. Davis, 1 Taunt.
359; Smith vy. Sleap, 12 M. & W.
585; Oates v. Hudson, 6 Ex. 346.

(d) Atlee v. Backhouse, 3 M. & W.
633; Skeatev. Beale, 11 A. & E. 983.

(e) £b.; and see post, Chap. I,
Sect. VI, ‘‘ Duress.”

696, n.

(9) Higgins v. Pitt, 4 Ex. 312;
see Smith v. Cuff, 6 M. & 8.160;
Horton v. Riley, 11 M. & W. 492;
Atkinson v. Denby, 6 H. & N. 778;
30 L. J. Ex. 361.

(h) Williams vy. Hetley, 8 East,
378 ; and see Unwin v. Leaper, 1 M,
& G. 747,

(é) See post, p. 66.
SECT. I. § 2. CONTRACTS IMPLIED IN LAW. 55

tion so long as the original process stands, although the
money might not have been justly payable and although the
process might have been irregularly or wrongfully issued ;
for the validity of the original legal proceedings cannot be
questioned in a new action (a). The plaintiff had been sued
by the defendant for a debt which he had paid, but being
unable to prove the payment by reason of not being then
able to find the receipt was compelled to pay the amount
again ; it was held that he could not upon finding the re-
ceipt recover back the amount from the defendant as money
received to his use (b). Where a writ has been issued in an ac-
tion against a person for the recovery of money and he pays
it without defending the action, he cannot afterwards bring
an action to recover such money back (c). So, money levied
by a regular execution under a judgment valid on the face
of it cannot be recovered back in an action for money had
and received, on the ground that the judgment was signed
or execution issued fraudulently for a larger amount than
was then due (d). But where the plaintiff had been arrested
on mesne process at the suit of the defendant, who had sued
out the process knowing at the time that he had no claim
and merely for the purpose of obtaining the arrest, and the
plaintiff had paid a sum of money to obtain his immediate
discharge and afterwards procured the process to be set
aside for irregularity, it was held that he might recover the
amount in an action for money received, the compulsion
being merely under the colour of legal process (e). The re-
medy for the abuse of legal process is to apply by motion
to the summary jurisdiction of the Court in which the pro-
ceedings were taken, to set aside or amend the proceedings,
if there be any ground for such application (/).

But if the act of compulsion is not authorized by the pro-
cess, an action may be maintained to recover the money paid

(a) Marriott v. Hampton, 7 T. R. (d) De Medina v. Grove, 10 Q. B.
269; 2 Smith’s L.C. 5thed. p. 356; 152.
De Medina v. Grove, 10 Q. B. 152; (e) Duke de Cadaval v. Collins, 4
Habberton v. Wakefield,4 Camp. 58; <A. & E. 858.
and see Duke de Cadaval v. Collins, (f) See De Medina v. Grove, 10
4A. & HB, 858. Q. B. 152; Pittv. Coomes,2 A.& E.
(6) Marriott v. Hampton, supra. 459; Payne v. Chapman, 4 A. & E.
(ce) Hamlet vy. Richardson, 9 Bing. 364; Habberton v. Wakefield, 4
644. Camp. 58.
56 CHAP. I. FORMATION OF CONTRACTS.

under the compulsion, because the validity of the process
is not thereby questioned.. Where under a writ of fi. fa.
against a third party the goods of the plaintiff were seized,
and he was compelled to pay a sum of money to re-
cover possession of his goods, it was held he might re-
cover the amount as money received for his use (a). It
seems that the plaintiff in such case could not prevent or
resist the seizure of his goods by the sheriff acting bond
jide in the execution of his duty without being guilty of a
contempt of court (0).
ee Upon the same principle if the defendant has exercised a
under adis- right of distress by taking the plaintiff’s cattle or goods,
wees which is a species of legal process, and the plaintiff has paid
money to recover his goods, he cannot claim it back as
money received for his use and dispute the distress in that
form of action. If the distress is wrongful, his proper course
is to replevy the goods or to bring an action for the wrong-
ful taking, If some money is due under the distress, he
may tender the amount due and so render the further pro-
secution of the distress wrongful (c).
Voluntary If a mere claim is made upon a person without any legal
payment of proceeding, and he pays it with full knowledge of all the
claim. circumstances of the claim and without any compulsion or
necessity, although the claim was unfounded and he might
have successfully resisted it, such payment is held to be
voluntary and cannot be recovered back (d).
Money ob- | Money extorted by a person as the consideration for doing
tune fa. What he is otherwise legally bound to do is also considered
pare as obtained by compulsion, and may be recovered as a debt
tion for do- for money received: as excessive charges paid to a railway

ing what hi ; 3 .
Bes ely company without which they refused to carry or deliver up

bound todo.

(a) Snowdon v. Davis, 1 Taunt.  v. Thomas, 11 Ex. 870; 25 L. J. Ex.
859; Falpy v. Manley, 10. B.594; 125; Loring v. Warburton, E. B. &
and see Oughton v. Seppings, 1 B.&  E.507; 28L. J. Q. B. 31.

Ad. 241; cited ante, p. 51. (d) Spragg v. Hammond, 2B. &B.

(4) Cooper v. Asprey, 3 B. & 8. 59; Denby v. Moore,1 B. & Ald.
932; 32 L. J. Q. B. 209; dissenting 123; Wilson v. Ray, 10 A. & E. 82;
from Day v. Carr, 7 Ex. 883. Barber v. Pott, 4H. & N. 759; 28

(c) Lindon v. Hooper, 1 Cowp. IL. J. Ex. 381; Bilbie v. Lumley, 2
414; Knibbs v. Hall, 1 Esp. 84; ast, 469; Brisbane vy. Dacres, 5
Gulliver v. Cosens, 1 C. B.'788; Glyn Taunt. 1438.
SECT. I. § 2. CONTRACTS IMPLIED IN LAW. 57

after carriage the plaintiff’s goods (a); money paid to the
mayor of a borough as fees to obtain a publican’s licence,
which the mayor ought to have granted without fee (b) ; ex-
cessive fees paid under protest to the steward of a manor for
admission to copyholds, to which admission was refused
without the payment (c); an excessive charge paid to’ an
arbitrator for obtaining an award from him (d).
Money paid upon an illegal claim for fees made under Money ots

ained by

colour of an office, may be recovered back, as excessive illegalclaim

for tees

fees paid to a sheriff upon the execution of a warrant (¢) 5 under co-
excessive charges paid to a broker for levying a distress (f) ; ur of am

? office.

fees illegally taken by a parish clerk for making extracts
from the register (g) ; toll illegally taken by a toll-collector

at a turnpike (h).

Money paid under a mistake may sometimes be recovered Money paid

back.

der a

The mistake which may entitle the plaintiff to Mistake.

recover back money paid to the defendant must be such as
to create a supposed liability in the plaintiff to pay the
money to the defendant which in reality does not exist (i).
The plaintiff bought a bar of silver of the defendant by
weight, and by an error in assaying it paid him fora greater
weight of silver than it contained; he was held entitled to
_recover the excess as money received for his use (j). Money
paid by the plaintiff to the defendant as due upon the basis
of erroneous accounts, which upon a true statement of
account is found not to be due, may be recovered back as

money received for the use of the plaintiff (A).

(a) Parker vy. Great Western Rail-
way Company, M. & G. 253; Ash-
mole v. Wainwright, 2 Q. B. 837;
Piddington v. South-Eastern Railway
Company, 5 C. B. N. 8. 111; 27 L.
J. C. P. 295; Garton v. Bristol and
Exeter Ry. Co., 28 L. J. Ex. 169;
4H. & N. 33; Baxendale v. Eastern
Counties Ry. Co., 4 C. B. N.S. 63;
Baxendale v. Great Western Ry. Co.,
82 L. J.C. P. 225; 33 2b. 197.

(b) Morgan v. Palmer, 2B. & C.
729.

(ce) Traherne v. Gardner, 5 E. &
B. 913; 25 L.J.Q. B. 201.
(d) Barnes v. Brathwaite,2 H. &

A tenant,

N. 569, and see Re Coombs, 4 Ex.
839.

(e) Dew v. Parsons, 2 B. & Ald.
563.

(f) Hills v. Street, 5 Bing. 37.

(g) Steele v. Williams, 8 Ex. 625,

(h) Lewis v. Hammond, 2B. & Ald.
206; Waterhouse v. Keen, 4 B. & C.
200.

(z) As to the effect of mistake in
avoiding agreements see Chap. [,Sect.
VI, “ Mistake.”

(7) Cox v. Prentice, 3 M.&S8. 344.

(4) Dails v. Lloyd, 12 Q. B. 5381;
Townsend v. Crowdy, 8 C. B. N. 8.
477; 29 L. J. C. P. 300.
58 CHAP, I. FORMATION OF CONTRACTS.

Moneypaid under a landlord who held an estate for lives in the premises,

under a
mistake,

having paid rent after the determination of the landlord’s
estate by the expiration of the lives, in ignorance that the
lives had expired, was held entitled to recover the amount
so paid (a). The plaintiff having indorsed to the defendant
a bill of exchange, afterwards paid him the amount of the
bill under the supposition that it was void for want of a
sufficient stamp; but upon the fact being discovered that
the bill had been drawn in Ireland and that the stamp was
sufficient for a bill drawn there, it was held he was entitled
to recover from the defendant the amount paid under such
mistake as to the validity of the bill (b). The plaintiff was
surety to the guardians of an union for the due accounting
of their treasurer for monies received by him, and paid to
the guardians the amount of a claim made by them for a
balance due from their treasurer, in ignorance of the fact
that the monies of the union had always been paid into a
bank employed by them which had failed, and had not in
fact been received by the treasurer; it was held that upon
these facts the plaintiff was not hable for the amount and
might recover it from the guardians as having been paid
under a mistake (c). A sheriff who has seized goods in
execution and paid over the proceeds to the judgment
creditor, in ignorance of the fact of a previous act of bank-
ruptcy of the judgment debtor, and has been subsequently
compelled to pay the amount to the assignees of the bank-
rupt, may recover the proceeds paid to the judgment creditor
as money received to his use (¢). The plaintiff, an insurance
broker, paid to the assignees of a bankrupt underwriter the
full amount of a debt owing by him to the underwriter for
premiums, having at the time a debt owing to him from the
underwriter for losses upon policies which he was therefore
entitled to set off in account; he was held entitled to recover
back the amount which he might have set off, as having paid
it under a mistake (e).

(a) Barber v. Brown, 1 0. B. N.S. (d) Brydges v. Walford, 6 M. &8.
121; 26L. J.C. P. 41. 42; Standish v. Ross, 3 Ex. 527.
(b) Milnes v. Duncan, 6 B.& C. 671. (e) Bize v. Dickason, 1 T. R. 285.

(ce) Mills vy. Alderbury Union, 3  Thenature of the mistake is not stated
Ex, 590. in the report, but it seems to have been
SECT. I. § 2. CONTRACTS IMPLIED IN LAW. 59

If the mistake occurs and causes the payment, it is imma- Money paid
terial that it arose from negligence or want of diligent Mie,%
inquiry on the part of the plaintiff, or from forgetfulness, or
that he had the means of knowledge (a). Money paid by
the plaintiff under a supposed obligation to pay it, in forget-
fulness of a material fact which had extinguished the obliga-
tion, may be recovered back; as where the directors of an
insurance office paid the amount of a life policy in forgetful-
ness of the fact that a default had been made in payment of
the annual premium, upon which they had on a former occa-
sion decided that the policy had lapsed, they were held
entitled to recover the amount (b). But “if the money is in-
* tentionally paid without reference to the truth or falsehood
of the fact, the plaintiff meaning to waive all inquiry into it
and that the person receiving shall have the money at all
events, whether the fact be true or false, the latter is cer-
tainly entitled to retain it”’ (c).

If the mistake is in a matter which merely affects the
motives of the plaintiff in paying the money, and does not
affect his obligation to the defendant to pay it or the right
of the defendant to receive it, the plaintiff is not entitled to
recover the amount. Thus, where the plaintiff took security
for an advance to a person upon property, subject to a pre-
vious charge for a debt due from the same person to the
defendant, which the plaintiff paid off under the supposition
that the property had really belonged to that person, but it
turned out that he never had any title to the property, 1b was
held that the plaintiff could not recover the amount so paid
to the defendant in discharge of his debt (d). Where a
banker paid a customer’s check to the bearer in ignorance
of the fact that at the time he had no assets of the customer
in his hands, he was held not entitled to rescind the pay-
ment and recover the money paid (e).

If a person voluntarily pays a claim made upon him Mistake of
law.

a misconception as to his right to set
off the debt. See 4M. & G. 17,
note (d).

(a) Per Parke, B., Kelly v. Solari,
9M. & W. 54, 58; Bell v. Gardiner,
4M.&G.11; Vownsend v. Crowdy,
8C.B.N.8. 477.

(2) Kelly v, Solari, 9M. & W. 54.

(c) Per Parke, B., Kelly v. Solari,
9M. & W. 54, 59; and see Townsend
v. Crowdy, 8 C. B. N.S. 477.

(d) Athen v. Short, 1 H. & N. 210;
25 L. J. Ex. 321.

(e) Chambers v. Miller, 13 C. B.
N.S. 125; 32 L. J.C. P. 30; and see
Martin v. Morgan, 1 B. & B. 289.
60 CHAP. I, FORMATION OF CONTRACTS.

which he might have successfully resisted, having full know-
ledge of all the circumstances but being under a mistake as
to the law, he cannot merely on that account recover the
amount paid (a).
Money paid
for a consi-
deration

which has
failed,

Where the plaintiff has paid money to the defendant for
a consideration which afterwards fails, the plaintiff has a
right to recover it back as money received to his use (b). If
the plaintiff has paid the price of goods sold to him by the
defendant, which the defendant fails to deliver, the plaintiff
may, generally speaking, rescind the contract of sale and re-
cover back the money (¢). So, if a person sells goods as
his own which are not his own, and the true owner subse-
quently claims them from the purchaser, the purchaser is
entitled to recover the price from the seller as having been
paid for a consideration which has failed (d).

So, the plaintiff is entitled to recover from the defendant
the price paid for railway scrip which turns out to be
forged (e); and he may recover money paid for forged bills or
bank notes (f). Money paid in discharge of a forged bill
may be recovered, if the forgery is discovered and notice of
it given to the party who presented the bill in time to enable
him to secure his rights against prior parties by giving the
necessary notices of dishonour ; for the holder of a bill is en-
titled to know on the day when it becomes due whether it is
an honoured or a dishonoured bill (y). The acceptor of a
forged bill cannot recover the money paid in discharge of his
own acceptance (i). Where the plaintiff paid the defendant
the price of a certain number of bonds of a foreign country,
and the defendant delivered documents which were defective
and worthless, the plaintiff was held entitled to recover the
amount paid (i). If a person gives change for a bank note

(a) Bilbie v. Lumley, 2 Hast, 469 ;

Denby v. Moore, 1 B. & Ald. 123;
Brisbane vy. Dacres, 5 Taunt. 143. See
ante, p. 56.

(2) See Straton v. Rastall, 2T. R.
366, 369.

(c) Giles v. Hdwards, 7 T. BR. 181;
Devaux vy. Conolly, 8 C. B. 610.

(d) Eichholz v. Bannister, 3.4L. J.
C. P. 105; and see Morley v. Atten-
borough, 3 Wx. 500, 51-14; Chapman v.
Speller, 14. B. 621.

(e) Westroppv. Solomon, 8C.B.345.

(f) Jones v. Ryde, 5 Taunt. 488 ;
Gurney v. Womersley, 4 BE. & B. 1384
Woodland v. Fear, 7 &. & B. 519, 522.

(9) Wilkinson v. Johnson, 3B. &
CO. 428; Cocks v. Masterman, 9BE&
C. 902; Smith v. Mercer, 6 Taunt. 76.

(h) Price v. Neale, 3 Burr. 1354;
and see Smith v. Mercer , supra.

(i) Young v. Cole, 3 Bing. N. OC,
724; and see Lamert y. Heath, 15
M. & W. 486, cited post, p. 64.
t
SECT. I. § 2. CONTRACTS IMPLIED IN LAW. 61

and the bank stops payment before it can be presented, he Moneypaid
may recover the amount provided he gives due notice and ae ae
returns the note (a) ; and so if a person cashes a cheque on a pith has
banker, which on due presentment is dishonoured (b).

Money given as the consideration for a bill of exchange,
which has been avoided by a material alteration (c) ; depo-
sits paid on scrip for shares in a proposed railway, which
turns out abortive (d); deposits on shares in an abortive
cost-book mine (e); the conduct money paid to a witness
with a subpoena, whose attendance became unnecessary and
was countermanded, and who did nothing under the sub-
peena (f),—may be recovered as money received for the use
of the party making such payments.

The plaintiff instructed the defendant, a broker, to pur-
chase for him certain goods and paid him a sum of money
on account of the price ; the defendant having made a con-
tract not according to his instructions and on which the
plaintiff had no remedy, it was held that the plaintiff might
recover the money as having been paid for a consideration
which entirely failed (q).

The plaintiff having paid rent to the defendant for the oc-
cupation of land supposed to belong to the defendant, was
afterwards ejected by the rightful owner and compelled to
pay mesne profits for the same period of occupation ; it was
held that he might recover the amount of rent paid as
money received for his use, the defendant not asserting any
title to the land (h). It is a rule of law that the title to land
cannot be tried under a claim for money received (i).

Upon the same principle, where an agent receives money

(a) Turner v. Stones, 1D. & L.
122; and see ltogers v. Langford, 1
Cc. & M. 637; Timmins v. Gibbins,
18 Q. B. 722.

(6) Woodland vy. Fear,7 E. & B.
519; 26L. J. Q. B. 202.

() Burchfield v. Moore,3 E. & B.
683

(d) Moore v. Garwood, 4 Ex. 681 ;
Watson vy. Earl Charlemont, 12 Q. B.
856; Walstad v. Spottiswoode, 15M.
& W. 501 ; Ward vy. Londesborough,
12 OC. B. 252; Mowatt v. Londesbo-
rough, 4B, &B.1; and see Moseley v.

Cressey’s Company,1 L. Rep. Eq. 405.

(e) Johnson v. Goslett, 27 L. J.C.
P. 122; 30. B. N.S. 569; 25 L. J.
C. P. 274; 27 tb, 122.

(f) Martin v. Andrews, 7 E. & B.
1; 26L.J.Q. B. 39.

(g) Bostock v. Jardine, 3 H. & C.
700; 34 L. J. Ex. 142.

(4) Newsome v. Graham, 10 B. &
C. 234; and see Barber v. Brown,
10. B.N.S.121; 26L. J.C. P. 41,

(i) See ib.; Clarance v. Marshall,
20. &M. 495 ; Lindon v. Hooper,
Cowp. 414.
Partial fail-
ure of con-
sideration.

62 CHAP. I. FORMATION OF CONTRACTS.

from his principal under instructions to dispose of it in a
particular way, and wholly refuses to do so, it may be reco-
vered as a debt for money received (a). So, if the money is
received by the agent under a revocable authority, the prin-
cipal after a revocation of the authority may recover it in
this manner (0).

But as long as the agency subsists and is not repudiated
or revoked the claim of the principal against the agent for
any breach of instruction rests upon the express agreement
between them (c). The plaintiff had paid money to a stake-
holder to abide the event of a horse race, which was to be
decided by the stewards ; a dispute arose as to the winner,
which was not decided by the stewards ; it was held that the
plaintiff could not recover his money unless he showed a de-
cision in his favour, or that a decision had become altogether
impracticable or impossible (d).

The failure of the consideration must be complete in order
to entitle the plaintiff to recover the money paid for it.
The plaintiff having paid a sum of money under a con-
tract by which he was to have immediate possession of a
house of the defendant, and the defendant was to put the
house in repair and grant a lease of it, and the plaintiff
having taken possession of the house, the defendant failed
to repair or grant the lease; it was held that the plaintiff
was precluded from recovering his money as upon a failure
of consideration, because he had received a part of the con-
sideration in the occupation of the house (e). The plaintiff
purchased a piece of land of the defendant and paid part of
the purchase money and took immediate possession, and the
defendant subsequently failed in giving a good title ; it was
held that the plaintiff could not recover the purchase money
he had paid, as he had received part of the consideration in

(a) Scott v. Surman, Willes, 400,
404; Thorpe v. Thorpe, 3 B. & Ad.
580 ; Buchanan v. Findlay, 9 B. & C.
738; Ehrensperger v. Anderson, 3
Ex. 148, 158.

(b) Taylor v. Lendey, 9 East, 49 ;

Parry v. Roberts, 3 A. & E, 118;-

Fletcher v. Marshall, 15 M. & W.
755.
(ce) Ehrensperger vy. Anderson, 3
1

Ex. 148 ; and see Miller vy. Atlee, 3
Ex. 799, 801; Hardman y. Bell-
house, 9 M. & W.596 ; Hill v. Smith,
12 M. & W. 618; Dunean v. Skip-
with, 2 Camp. 68.

(d) Brown v. Overbury, 11 Ex.715;
25 L. J. Ex. 169; see also Wilkinson
vy. Godefroy, 9 A. & E. 536,

(e) Hunt v. Silk, 5 East, 783.
SECT. I, § 2. CONTRACTS IMPLIED IN LAW. 63

the possession of the land (a). Under a contract of sale of
flour the defendant having delivered certain flour to the
plaintiff, the latter used half a sack and complained to the
defendant that it was not according to the contract ; he after-
wards used two sacks more and sold one; it was held he
could no longer recover back the price on the ground of
failure of consideration by reason of the goods not answer-
ing the description (0).

Where a. specific article is sold with a warranty of its
quality, a breach of the warranty does not entitle the pur-
chaser who has paid the price to recover it as upon a
failure of consideration ; his only remedy is in an action for
damages for breach of warranty (c). Though, if the price
has not been paid and he is sued for it, he is entitled to set
up the breach of warranty in reduction of damages; and
the agreed price will be reduced by an amount sufficient to
compensate for the breach of warranty (d).

But where the consideration is severable, so that the
money paid for a portion of it may be ascertained, a partial
failure may entitle the plaintiff to recover the part of the
money paid in respect of the part of the consideration which
has failed. The plaintiff ordered in writing of the de-
fendant a certain weight of particular goods, and paid the
price ; the defendant sent goods of the description ordered
and which with the packages made up the weight ordered,
contending that the packages were to be weighed in; the
plaintiff disputing this contention brought an action for
money received for his use in respect of so much of the
price paid as was attributable to the defective weight of
goods, and the terms of the order being construed in his
favour he was held entitled to recover (e).

Partial fail-
ure of se-
verable con-
sideration.

The plaintiff cannot recover his money upon the ground Where

of a failure of consideration, if he has obtained the specific
consideration which he bargained for, although it turns out

plaintiff
obtains the
considera-
tion bar-

to be of no value. Where the plaintiff paid money to the gained for.

(a) Blackburn v. Smith, 2 Ex. 783. (d) Ib. ; Allen v. Cameron, 1 C. &

(b) Harnor v. Groves, 15 C.B.667; M. 840; Poulton y. Lattimore, 9 B.
24 L. J.C. P. 53. & C. 259.

(ec) Gompertz v. Denton, 1C. & M. (e) Devaux v. Conolly, 8 C. B. 640.

207; and see Street v. Blay, 2B. &
Ad. 456,
Failure of
considera-
tion by de-
fault of
plaintiff.

Money
paid under
an illegal
contract.

64 CHAP. I. FORMATION OF CONTRACTS.

defendant in consideration of the defendant executing a
deed which the plaintiff knew to be void for want of a proper
stamp, it was held that he could not recover it back (a). So,
where the plaintiff paid money for the use of a patent which
was afterwards discovered to be invalid, it was held that he
could not recover the money upon the ground of failure of
consideration (b). The plaintiff purchased certain scrip cer-
tificates of shares in a railway company, which the directors
repudiated as having been issued without their authority,
and the plaintiff brought an action to recover back the price
on the ground that the scrip was not genuine; it was held
that the question for the jury was not whether the scrip in
question was genuine, but whether it was what the plaintiff
intended to buy as such scrip (c).

Where the failure of the consideration is caused by the de-
fault.of the plaintiff, he cannot recover the money paid for
it. The plaintiff purchased from the defendant shares in a
joint-stock bank, which it became the duty of the plaintiff
as purchaser to get registered in his own name; the plain-
tiff neglected to apply for registration, and the bank having
failed he claimed a return of the money paid for the shares
as upon a total failure of consideration; but it was held he
could not recover, because he had failed to obtain a com-
plete transfer of the shares by his own default (/).

Where money has been paid under an illegal contract,
the contract, so long as it remains executory, may be re-
scinded, and the money may be recovered as a debt for
money received (e). Money paid as the consideration for a
bond, given to secure an illegal wager on the amount of hop
duties, was held to be recoverable before the wager was de-
termined (jf). So, a sum of money paid by a person as the
consideration for procuring him a place in the customs, the
place not having been procured, was held to be recover-

(a) Westlake vy. Adams, 5 C. B. (d) Stray v. Russell, 1 E. & BE. 888;
N. 8. 248, 266. 916; 28 L. J. Q. B. 279; 29 id. 115.
(6) Taylor v. Hare, 1B.& P.N.R. (e) Lowry v. Bourdieu, Doug. 470;
260; and see Lawes v. Purser,6 EH, Tappenden v. Randall, 2B.&P. 467.
& B. 930; 26 L. J. Q. B. 25. . a Tappenden vy. Randall, 2 B. &

(c) Lamert v. Heath, 15 M. & W.
486.
sect. 1. § 2. CONTRACTS IMPLIED IN LAW. 65

able (a). The plaintiff had paid a sum of money to be ap-
plied to the use of the poor, in consideration of the with-
drawal of a prosecution against him; it was held he might
countermand the application of the money before it had
-been executed, and recover it back (b). The owner of a
ship authorized the captain to sell it to the Turkish Go-
vernment, and in order to effect a sale to apply a part of
the purchase-money in paying bribes to the ‘Turkish offi-
cials ; the sale having been effected and the price paid to
the captain, the owner was held entitled to revoke the
authority to pay the bribes and recover the whole sum,
such bribes being illegal as a fraud on the Turkish Govern-
ment (c).

Money deposited with a stake-holder upon an illegal
wager may be reclaimed at any time before it is paid over
according to the event (d). The law on this point was ex-
plained by Littledale, J., as follows :—“‘ If two parties enter
into an illegal contract and money is paid upon it by one to
the other, that may be recovered back before the execution
of the contract, but not afterwards. In the case of persons
entering into such a contract and paying money to a stake-
holder, if the event happens and the money is paid over
without dispute, that is considered as a complete execution
of the contract, and the money cannot be reclaimed ; but if
the event has not happened, the money may be recovered.
With respect to a stake-holder there is a third case, viz.
where the event has happened, but before the money has
been paid over one party expresses his dissent from the
payment. Under such circumstances he may recover it;
and perhaps it may then be said, that although the event
has happened, yet the contract is not completely executed
until the money has been paid over, and therefore the party
may retract at any time before that has been done”? (e).

(a) Walker v. Chapman, cited by
Buller, J.. in Lowry v. Bourdieu,
2 Doug. 471.

(8) Taylor v. Lendey, 9 East, 49;
and see Williams v. Hedley, 8 Fast,
378, cited post, p. 67; Goodall v.
Lowndes, 6 Q. B. 464.

(ce) Bone v. Eckless, 5H. & N. 925;
29 L, J. Ex. 438.

(d) Cotton v. Thurland,5 T. R. 405;
Smith v. Bickmore, 4 Taunt. 474;
Hodson vy. Terrill, 1 C. & M. 797;
Gatty v. Field, 9 Q. B. 431; Martin
v. Hewson, 10 Ex. 737; Varney v.
Hickman, 5 C, B. 271.

(e) Hastelow v. Jackson, 8 B.& C.
221, 226.
Where
plaintiff
not in part
delictowilh
defendant.

66 CHAP. 1, FORMATION OF CONTRACTS.

But it has been suggested in a more recent case that the
right to reclaim the money from the stake-holder after the
event has happened, though before it has been paid over,
might not be admitted by a court of error (a).

Where the plaintiff has paid money as the consideration
of a contract which he is entitled to rescind on the ground
of illegality, he must give notice to the other party that he
rescinds the contract before he can maintain an action to
recover the money (8).

Money paid under an illegal contract cannot in general
be recovered back after the contract has been completely
executed. Money lost at illegal gaming and paid cannot be
recovered back (c). The plaintiff being about to compound
with his creditors, in order to induce the defendant to
accept the composition gave him a bill for the balance of
his debt, which was illegal as being in fraud of the other
creditors; but having paid the bill when due, it was held
that he could not recover the amount (d). A premium
paid on a policy of insurance upon a ship, made without
interest and therefore illegal, was held not to be recoverable
after the ship insured had arrived safe, because the contract
was no longer executory (e).

Where money has been paid in execution of an illegal
contract to an agent for one of the parties, the latter may
recover it from his agent, who cannot set up the illegality
of the original contract in answer to his claim, although
such illegality might have been a bar to an action on the
original contract (f).

But the plaintiff may recover money paid under an illegal
contract after execution of the contract, if in paying the
money he was not wm puri delicto with the recciver (7).

(a) Mearing v. Hellings,14M.& 87. R. 266.

W. 711, 713; and see Buskv. Walsh,
4 Taunt. 290, 292 (a).

(b) Palyart v. Leckie, 6 M. & 8.
290; Gatly v. Field, 9 Q. B. 431;
and see Busk v. Walsh, 4 Taunt. 290,

(ec) Thistlewood v. Cracroft, 1 M.

& 8. 500,
(d) Wilson v. Ray, 10 A. & EF. 82.
(e) Lowry vy. Bourdieu, 2 Doug.
468; and see Andree vy. Fletcher,

(f) Tenant vy. Elliott, 1BL& P.8;
Farinev v. Russell, 1 B. & P. 296;
Bousfield y. Wilson, 16 M. & W. 185;
and see Nicholson v. Gooch,5 E.& B.
999; 25 L. J. Q. B. 187, 147; John-
son v, Lansley, 12 C. B. 468 ; post,
Chap. TIT, Sect. TV, “ Ilegality,”

(g) Per Lord Mansfield, Brown-
ing y. Morris, 2 Cowp. 790, 792;
Higgins v. Pill, Ex. 312,324,”
SECT. I. § 2. CONTRACTS IMPLIED IN LAW. 67
Thus, a bankrupt who has paid money to obtain the concur-
rence of a creditor to his certificate (a); an insolvent who
has paid money to one of his creditors to induce him to
execute a composition deed (b); a defendant in a penal ac-
tion who has paid money to compound the action contrary
to the statute 18 Eliz. c. 5, s. 4, which prohibits the composi-
tion of penal actions by the informer or plaintiff (c),—have
been held entitled to recover the money so paid, because
from the circumstances of hardship in which they stood
they were not considered to have acted in pari delicto with
the defendants, who had taken advantage of their circum-
stances to extort the money (d).

The contract implied from the receipt of money for the The receipt
use of another can arise only in respect of money or what is pee hoe
equivalent to money; a check on a banker (e), country bank its a
notes (f) unless dishonoured (g), foreign money (h), sums”
allowed in account (7), sums accounted for by an agent to
his principal as received (j), have been considered as money
for this purpose.

East India stock transferred to the defendant and stand-
ing in his name () ; a bill of exchange drawn by the defen-
dant, of which it was not shown that he had received the
amount (1); a bill of exchange received by the defendant
and paid in to his banker, before it was due (m),—have
been considered not to be money for this purpose. Goods
received by the defendant cannot be treated as money until
he has sold them and turned them into money (i).

(a) Smith v. Bromley, 2 Doug.
696, n.

(6) Higgins v. Pitt, 4 Ex. 312; see
Smith v. Cuff, 6M. & 8. 160; Hor-

(g) Timmins vy. Gibbins, 18 Q. B.
22,

(h) Ehrensperger vy. Anderson, 3
Ex. 148.

ton v. Riley, 11 M. & W. 492; Atkin-
son v. Denby, 6H. & N. 778; 7 ib.
934 30L. J. Ex. 361; 31 ib. 362.

(c) Williams v. Hedley, 8 East,
378; and see Unwin vy. Leaper, 1 M.
& G.747 ; Goedall v. Lowndes, 6 Q.
B. 464.

(d) See post, Chap. III, Sect. IV,
“ Tilegality.””

(e) Pratt v. Hobhouse, 4 Bing. 173.

(f) Pickard v. Bankes, 13 East, 20.

(i) Standish v. Ross, 3 Ex. 527;
Gingell v. Purkins, 4 Ex. 720.

(7) Shaw v. Picton, 4 B.& C.715;
and see Hume v. Bolland,1C. & M.
130.

(kt) Nightingale vy. Devisme, 5 Burr.
2589.

(1) Scott v. Miller, 3 Bing. N. C.
811.

(m) Atkins v. Owen, 4A. & EF. 819.

(n) See ante, p.51, (g).

B2
Contracts
implied
from pre-
viously ex-
istingdebts.

Account
stated,

Admission
of debt of
certain
amount,

68 CHAP. I. FORMATION OF CONTRACTS.

There are some cases where, it being established upon
other grounds that a debt already exists between the parties,
the law implies a new contract to pay it for the purpose of
supplying an additional or more convenient remedy. Such
contracts are implied :—

Where an executory simple contract has been completely
performed, except leaving a present money debt payable
under it. This contract has been already noticed as arising
upon the executed consideration (a).

Upon accounts stated.

Upon judgments of foreign courts, and other debts created
by foreign law.

Upon an acknowledgment made by the defendant to the
plaintiff of money due from him to the plaintiff, a simple
contract to pay ib is implied in law, which may be charged
as a distinct cause of action, and is described as “ for money
found to be due from the defendant to the plaintiff on an
account stated between them” (b). ‘An account stated,”
it is said, “is nothing more than the admission of a balance
due from one party to another; and that balance being due
there is a debt. The statement of the account and admission
of the balance implies a promise in law to pay it” (c).

In order to constitute an account stated, there must be a
statement of some certain amount of money being due. A
letter of the defendant to the effect that he thinks he is in-
debted in a certain amount is not sufficient (d). An admis-
sion by the defendant to the effect merely that he had re-
ceived a sum of money on account of the plaintiff, and not
that it was a subsisting debt, was held insufficient (e). So,
the admission of money being due, without specifying ex-
pressly or by sufficient reference a definite amount, is not
sufficient ; and in an action brought upon such admission the
plaintiff would not be entitled to recover even nominal

(a) See ante, p. 36. cedure Act, 1852, 15.&16 Vict. ¢. 76
(5) Knowles v. Michell, 13 East, sched. B.
249; Highmore v. Primrose, 5 M. & (c) Per Lord Abinger, Irving v.
8. 65; Porter v. Cooper, 1 C. M. &  Vettch, 3 M. & W. 90, 106.
R. 387; Wray v. Milestone, 5 M. & (d) Hughes vy. Thorpe,5 M. & W.
W.21; and see 2 Wms. Saunders, 656.
122 (c); and the Common Law Pro- (e) Tucker v. Barrow, 7 B. & 0.623.

»
SECT. I, § 2. CONTRACTS IMPLIED IN LAW. 69

damages (a). So, an admission of liability to a claim for
unliquidated damages, as the liability of a surety, will not
support an account stated (0).

The plaintiff having demanded a certain sum from the de-

fendant in respect of an asserted claim, the defendant offered
to pay a smaller sum; it was held that such offer was not an
acknowledgment of a debt on which an account stated
could be founded (c). The defendant, having been shown
an account of the plaintiff containing several items, objected
to one item only; it was held that there was evidence of an
account stated by him as to the items not objected to (d).
The defendant, having received an account of the plaintiff
against him, wrote a letter enclosing £5, and saying he
should have the remainder next week, it was held there was
evidence of an account stated as to the balance (e). A pro-
missory note dated August 8, 1844, for a sum which was
described in the note to be the amount of interest due up to
the 6th of July, 1844, on a previous note for a stated amount,
was held to be evidence of an account stated respecting the
amount of the previous note (/).

An acknowledgment of a debt payable at a future date, or Debts pay-
in a certain event, also constitutes an account stated, upon o
which however the liability is not absolute until the time
of payment has arrived, or the event has happened (g). A
bill of exchange or a promissory note, payable at some
period after date, operates as an account stated of this kind
between immediate parties to it (h).

An admission of debt, in order to constitute an account To and by
stated, must be made to the creditor himself or to his agent, eae
and is not sufficient if made to a stranger (i); and it must Pe stated.

(a) Teal v. Anty, 2 B. & B. 99;
Green vy. Davies, 4 B. & C. 235;
Kirton v. Wood, 1 M. & Rob. 253;

Lane v. Hill, 18 Q. B. 262; 21L.J.

Q. B. 318.

(b) Marshall v. Wilson, (Fx. Ch.
Tr.) 14 W. BR. 699; see Buck v.

Hurst, L. Rep. 1 C. P. 297.

(ce) Wayman v. Hilliard, 7 Bing.101.
(d) Chisman v. Count, 2 M. & G.

307.

(e) Peacock vy. Harris, 10 Kast, 104.

(f) Perry v. Slade, 8 Q. B. 115.

(9) Wheatley v. Williams, 1 M. &
W. 533; and see Baker v, Heard, 5
Ex. 959, 966; Calvert v. Baker, 4
M. & W. 417; Burgh v. Legge, 5 M.
& W. 418.

(A) Wheatley v. Williams, supra ,
Fryer v. Roe, 12 C. B. 437,

(i) Tucker v. Barrow, 7 B. & OC.
623; Breckon vy. Smith, 1 A. & B.
488 ; Jardine vy. Payne, 1B. & Ad.
663.
70 CHAP. I. FORMATION OF CONTRACTS.

be made by the defendant himself or by his agent. The
award of an arbitrator awarding a sum due will not con-
stitute an account stated, because an arbitrator is not an
agent for that purpose (a).

Tarwhnk The admission of debt, constituting an account stated,
formac- may be in writing or by mere oral statement; and the exis-
count may y 8 J . ‘

be stated. tence of an admission in writing does not exclude evidence

of an admission of the same debt made by oral statement (0).
A bill of exchange or promissory note is evidence of an
account stated between immediate parties to the instrument,
but not between remote parties (c); it is not admissible
evidence unless properly stamped (d). An I. O. U. is evi-
dence of an account stated with the person to whom it is
addressed (e) ; and if it bears no address, then presump-
tively with the holder, in the absence of evidence to the
contrary (f).

An account stated respecting a debt which has not accrued
due within six years of the action brought for its recovery,
must be in writing signed by the party chargeable thereby,
under Lord Tenterden’s Act, 9 Geo. IV. c. 14, s. 1, which
requires the acknowledgment of debt to be made in that
form in order to take the debt out of the operation of the
Statute of Limitations (7); but where an account is stated
respecting debts on both sides, and it is agreed that the
cross demands shall be set off and a balance stated, it is no
objection to such account that some of the earlier items were
barred by the Statute of Limitations, and that there is no
valid acknowledgment within Lord Tenterden’s Act, be-
cause the agreement to set off operates as payment of the
items to which it applies (h).

A simple contract is not implied im law, as upon an ac-

(a) Bates v. Townley, 2 Ex. 152.

(4) Singleton v. Barrett, 2C.& J.
368 ; Newhall v. Holt, 6 M. & W. 662.

(c) Wheatley v. Williams, 1M. &
W. 533; Burmester v. Hogarth, 11
M. & W. 97.

(d) Green v. Davies, 4 B. & C. 235;
and see Singleton v. Barrett, 2 C. &
J. 368.

(e) Jacobs vy. Fisher, 1 C. B.178;
Wilson v. Wilson, 14 0. B. 616.

(f) Curtis v. Rickards, 1M. & G.
46; Fesenmayer v. Adcock, 16 M. &
W. 449.

(g) Jones v. Ryder, 4 M. & W.32;
Clark vy. Alexander, 8 Scott, N. R.
147; and see Hopkins vy. Logan, 5 M.
ch 241, 248; Perryy. Slade, 8 Q.B.
115.

(h) Ashby v. James, 11 M. & W.
542; Clark v. Alexander, 8 Scott,
N. BR. 147, 165.
SECT. I. § 2. CONTRACTS IMPLIED IN LAW. “1

count stated, upon an acknowledgment of money being due
under a contract under seal («); nor upon an acknowledg-
ment made under seal.

An account stated alone is not conclusive, but is merely What debt
prima facie evidence of liability in the party admitting the ae :
debt; and in an action brought upon an account stated, the wernt
existence or validity of the debt respecting which it was
stated may be disputed. Thus, the defendant charged upon
an account stated may obviate its effect by showing that
there was a mistake in the statement of the account (l)); or
that the account was stated upon the supposition that the
debt was due, whereas in fact it was not due (c); or that
the account was stated respecting a debt not then due, as an
I. O. U. given as security for a prospective debt (d); or that
the debt was claimed under a contract void for want of con-
sideration (e) ; or that the debt was claimed under a contract
of which the consideration had failed (f); or that the debt
stated in the account on which the defendant is charged
was not due from the defendant in his own right, or that it
was not due to the plaintiff in his own right (g); or that the
account was stated in respect of a lability for unliquidated
damages, as the liability of a surety for a default of the prin-
cipal debtor (hk). Upon a loan of money, the debtor and a
surety signed and delivered to the creditor a document to
the effect, “We jointly and severally owe you £— ;’’ it was
held to be evidence of an account stated against both, and
that the effect of it against the surety was not avoided by
showing that he contracted the debt only as surety (i).

So, it may be shown that the debt stated in the account
was void because upon an illegal consideration (j); that the
account was stated respecting a debt claimed as remunera-
tion for the professional services of a barrister (k); that the

(a) Middleditch y. Ellis, 2 Ex. 623. (f) Jacobs vy. Fisher, 1 OC. B. 178;

(b) See Trueman y. Lurst,1 T. R. Wilson v. Wilson, 14 C. B. 616.
40,42; Thomas v. Hawkes, 8 M. & (g) Petch y. Lyon, 9 Q. B. 147.
W. 140; Perry v. Attwood, 6 KE. & (h) Marshall v. Wilson, (Ex. Ch.
B. 691; Dails v. Lloyd, 12 Q. B. Ir.) 14 W.R. 699.
531, (it) Buck v. Hurst, L. Rep. 1 C. P.

(ec) Gough v. Findon, 7 Ex. 48. 297. :

(d) Lemere vy. Elliott, 6 H. & N. (j) Rose v. Savory, 2 Bing. N. C.
606; 30 L. J. Ex. 350. 145.

(ce) French v. French, 2 M. & G. (4) Kennedy v. Broun, 13 C. B.
644. N.8. 677; 32 L. J.C. P. 187,
Balance of
cross ac-
counts.

Debt within
the Statute
of Frauds.

72 CHAP. I. FORMATION OF CONTRACTS.

account was stated respecting a debt claimed for the profes-
sional services of an attorney, for which no bill of costs had
been delivered (a).

Where the plaintiff charges the defendant upon an ac-
count stated, founded on an account rendered by the de-
fendant containing items on both sides and striking a ba-
lance, the plaintiff may dispute the items entered against
him in the account, so as to charge the defendant with
the full amount of the items entered in his favour (b) ;
but where an account is stated respecting items on both
sides, and an agreement is further made that the items on
one side shall be set off against the items on the other,
such an agreement respecting the cross demands is equiva-
lent to payment, and extinguishes the debts to the amounts
set off against each other (c). Where upon such statement
of cross demands a balance is struck and agreed upon, the
discharge of the other items is a sufficient consideration to
support the debt for the balance, though the account might
have contained claims for which an action would not le (d) ;
and upon such a statement of account, setting off the items
against each other, it is no objection to the claim for the
admitted balance of the account that some of the items were
barred by the Statute of Limitations (e) ; or that some of the
items were due by contract under seal (f).

It is no answer to an account stated admitting a debt,
that the debt was due under a contract within the Statute of
Frauds, of which there was no memorandum in writing, if
the consideration for the debt was completely executed at
the time of stating the account (q); but if the account was
stated before the consideration was executed, the debt, being
due under the contract only and not in respect of the exe-

(a) Seadding v. Eyles, 9 Q. B. 858 ; (c) Ashby v. James, 11 M. & W.
Brooks v. Bockett, 9 Q. B. 847. 542; see ante, p.70.

(6) Rose v. Savory, 2 Bing. N. C. (f) Foster v. Allanson, 2 T. R.
145. 479; and see Middleditch v. Ellis,

(c) Ashby v. James, 11 M. & W. 2Ex. 623.
542; Callander v. Howard, 10 C. B. (g) Cocking v. Ward, 1 C. B. 858;

290; and see M‘Kellar v. Wallace, Knowles v. Michel, 13 East, 249;
8 Moore, P. C. 378, 401; Sinith v. Seago v. Deane, 4 Bing. 459; and see
Page, 15M. & W. 683. Laycock vy. Pickles, 4 B. & 8. 497;
(d) Laycock v. Pickles, 4B. & 8. 33 L.J.Q.B. 43; Alarshall v. Wil-
497; 33 L. J. Q. B. 43. son, (Ex. Ch. Iv.) 14 W. R. 699.
SEcT. I. § 2. CONTRACTS IMPLIED IN LAW. 73

cuted consideration, is not recoverable, by reason of the
statute (a).

The legal effect of an account stated is not avoided by Equitable
showing that the debt admitted was due from the defendant a
as trustee, and one for which the only previous remedy was
in equity (b). The defendant held goods upon trust to
sell and account to the plaintiff for the proceeds, and after
selling the goods and repaying an amount advanced by hin
on the security of the goods admitted a balance due to the
plaintiff; it was held that the plaintiff might recover the
balance in an action upon the account stated (c). So, where
upon dissolution of a partnership the partners account to-
gether and strike a balance in favour of one of them, he may
recover it in an action upon such statement of account (d).
So, if an executor or administrator states an account with a
legatee or person entitled to a distributive share of the
deceased’s estate, admitting that he has received the amount
of such legacy or share and holds it for the use of the
legatee or person entitled, he may render himself hable
upon such admission to an action at law for money received
or upon an account stated, although as executor or adminis-
trator he could not be sued at law for a legacy or distribu-
tive share (e).

Where a Court of competent jurisdiction adjudges a sum ae oe
of money to be paid, a debt or contract to pay it is created felon judas
thereby. The judgment may be enforced by the ordinary ™™*
process of the Court ; or it may in general be treated as a
distinct contract, on which a new action may be brought (/f).

The contract created by the judgment of a Court of Record

is a contract of record (q).

(a) Lord Falmouth v. Thomas, 1
C, & M. 89.

(b) Remon v. Hayward, 2 A. & E.
666; Roper v. Holland, 3 A. &E.99;
Howard v. Brownhili, 23 L. J. Q. B.
23. A count for money received will
also in general lie against a trustee
after an acknowledgment by him that
he has received money, and holds it
for the use of the cestui que trust.
Ib.; and see Edwards y. Lowndes,

1E. & B. 81, 89.

(c) Howard vy. Brownhill, supra.

(d) Foster vy. Allanson,2T.R. 479;
Wray v. Milestone, 5 M. & W. 21.

(e) See Deeks y. Strutt, 5 T. BR.
690; Jones v. Tanner,7 B. & C. 542;
Topham v. Morecraft, 8 E. & B. 972.

(f) Williams v. Jones,18M. & W.
628, 638, 634; Carpenter v. Thorn-
ton, 3 B. & Ald. 52, 57.

(g) See posé, p. 89.
74 CHAP. I. FORMATION OF CONTRACTS.

Upon the same principle, where the judgment of a foreign
or colonial Court has adjudicated a certain sum of money to
be due from one person to another, a debt or contract to pay
the amount is created, which may be enforced by an action
in the Courts of this country (a). The judgment not being
matter of record in this country, the debt created by it here
is a simple contract debt ; and there is no difference between
colonial and other foreign judgments in this respect (0).

The judgments of the Irish and Scotch Courts are consi-
dered as foreign judgments and raise an implied contract to
pay the amount of the judgment, upon which an action may
be maintained in the English Courts (¢). Also, an action
may be maintained upon a decree of a colonial Court of
Equity, ordering the payment of money (d). An action will
lie in the English Courts upon a decree of the Court of
Session in Scotland, in a suit for a divorce, awarding
costs (¢), if the amount of costs is finally ascertained (/).

Judgment ‘The judgment of the foreign Court must be final, and

final and fur create a certain debt, in order to support an action in this

eae country (g). A foreign judgment ordering the defendant to
pay a certain sum to the plaintiff on a certain day, first de-
ducting thereout the defendants’ costs to be taxed by the
proper officer, was held not to raise an implied contract to
pay until taxation of the costs, because until then there was
no final judgment for a certain amount (h) ; but the pendency
of an appeal in the foreign Court is no bar to such action,
though it may afford ground for the equitable mterposition
of the Court in this country, in which the action is brought,
to stay proceedings (7).

Groundson A fintal judgment of a foreign Court is taken to be conclu-

(a) Walker v. Witter, 1 Doug. 1, Henderson v. Henderson, 6 Q. B. 288.
5; Hall vy. Odber, 11 East, 118, 124; (e) Russell vy. Smyth, 9 M. & W.
Atkinson vy. Lord Braybrooke, 4 810.

Camp. 380; Russell v. Smyth, 9 M. & (f) See Sadler v. Robins, 1 Camp.
W. 810; Smith v. Nichols,3 Bing. 253; Patrich v. Sheddon, 2 FE. & B.

N. C. 208, 221. 14; 22 L. J. Q. B. 283.
(6) Philpott v. Adams, 7H. & N. (9g) Sadler v. Robins, 1 Camp. 253 ;
888; 31 L. J. Bx. 421. Patrick vy. Sheddon, 2 BE. & B. 14;
(ce) Collins vy. Matthew, 5 East, 22 L. J.Q. B. 283.
473; Harris v. Saunders, 4 B. & CO. (h) See id.
411; Douglas v. Forrest, 4 Bing. 686. (@) Scott v. Pilkington, 2B. & 8.

(d) Sadler vy. Robins, 1 Camp. 253, 11; 31 L.J3.Q. B. 81.
254; LMenley v. Soper, 8 B. & C.16;
SECT. I. § 2. CONTRACTS IMPLIED IN LAW. 75

sive between the parties upon the merits of the matter adju- reign judg-
dicated upon; consequently in an action founded upon it in Ce
this country, no defence can be raised which was open to the tm
defendant in the original suit (a). But in such action the
defendant may avoid the effect of the foreign judgment by
showing a want of jurisdiction in the foreign Court (d) ; that

he was not summoned and had no notice of the proceed-

ings in the suit, which was contrary to natural justice () ;

that the judgment was obtained by fraud (d); that there

is a manifest error on the face of the judgment, showing

the conclusion to be erroneous either in law or in fact; and

for this purpose the reasons assigned in the judgment and
forming part of it may be examined (e), as where the judgment
appeared to have decided according to the law of the wrong
country, or to have mistaken the law of another country (/);

but it is not open to show by extrinsic evidence that the
foreign Court has come to an erroneous conclusion either in

law or in fact as to the matter adjudicated upon (y), or that

fresh evidence has been discovered since the judgment, show-

ing it to be erroneous (i).

A debt created by foreign or colonial statutes may be en- OS
forced in this country as a simple contract debt, asa debt for aes ae
calls by a company founded on colonial Acts (7) ; though a ™**
debt arising under an Act of Parliament in this country, as
a debt for calls under the Companies Clauses Consolidation

Act, is treated in general as a specialty debt (7).

(a) Henderson v. Henderson, 6 Q.
B. 288; Bank of Australasia vy. Nias,
16 Q. B. 717; De Cosse Brissac v.
Rathbone, 6H. & N. 301; 30 L. J.
Ex. 238; and see 2 Smith’s L. C. 5th
ed. 686.

(b) See Robertson v. Struth, 5Q.B.
941 ; Vanquelin v. Bouard, 33 L. J.
C. P. 78.

(c) Buchanan v. Rucker, 1 Camp.
63; 9 East, 192; Ferguson v. Mahon,
11A.&E.179; Reynolds y. Fenton,
3 C. B. 187.

(d) Bowles v. Orr, 1 Y.& C. Ex.
464.

(e) Simpson v. Fogo, 1 J. & H.18;

1H. & M.195; 29 L. J. C. 657 ; 32
2b. 249; Reimers v. Druce, 23 Beav.
150; 26 L.J. C. 196.

(f) 16.; and see Scott v. Pilkington,
2B. &8. 11,41; 31L.J.Q. B. 81,
89; Novelli v. Rossi, 2B. & Ad. 757.

(g) De Cosse Brissac v. Rathbone,
6H. & N. 301; 30 L. J. Ex. 238.

(4) De Cosse Brissac v. Rathbone,
supra.

(i) Welland Ry. Co. v. Blake, 6 Il.
& N. 410; 30 L. J. Ex. 161.

(j) Cork and Bandon Ry. Co. v.
Goode, 13 C. B. 826; 22 Li. J. C. P.
198; and see Shepherd v. Hills, 11 Ex.
55; 25L. J. Ex. 6; post, p. 96.
Contracts
under seal.

Deeds.

Signing.

76 ‘

Cuapr. I. Sect. II. Contracts unDER SEAL.

 

Contracts under Seal .............76 | The Consideration ............6+ 84
Deed, Execution of Ses Priority in Administration of
ES CLOW oj ssnina se sca ceosnisatheoon civ ASSOES na cigctccaaes Vaccine serena 86
Acceptance and Disclaimer....,. 80 | Remedyagainst Heirand Devisee 86
Deed Poll, Indenture ............ 81 | Limitation, Merger, Estoppel,
Bonds acacaex aaecanneetiheinni 82 CLC caasiciiensgigttiore n'a csintotete otimtleetafe 8

Conrracts under seal are formed by a deed sealed and de-
livered. They involve the element of agreement inasmuch
as the parties by executing the deed agree to the matter of
the contract; but they derive their legal effect solely from
the formality of the deed which is used to witness the agree-
ment, and not from the mere fact of agreement as in the
case of simple contracts («).

In general it is optional with the parties to put agree-
ments into the form of a deed under seal. But agreements
relating to some matters are required by statute to be made
by deed. Thus, certain leases are required by the statute
8 & 9 Vict. c. 106, s. 3, to be made by deed. A gratuitous
promise, that is, one made without a consideration, must be
made by deed in order to give it validity (0).

* A deed is a writing or instrument written upon paper
or parchment, sealed and delivered, to prove and testify the
agreement of the parties whose deed it is to the things con-
tained in the deed. . .. A deed cannot be written upon
wood, leather, cloth or the like but only upon parchment or
paper, for the writing upon them can be least vitiated, al-

‘tered or corrupted” (c). The contents of a deed may be

written or printed, in ink or in pencil (d). A deed is sub-
ject to all the rules of law relating to written documents (e).

The execution of a deed consists of sealing and delivery.
Signing a deed, though usual, is no part of the formality at
common law (f).° It is made necessary in some instances
by particular statutes, and sometimes by the special terms of

(a) See ante, p. 11. CO, 234, 237.
(4) See ante, p. 10, and post, p. 84. (e) See post, Chap. I, Sect. IV,
(c) Sheppard’s Touchstone, p. 50; “‘ Contracts in Writing.”

Co. Lit. 35 6. (f) Sheppard’s Touchstone, by

(d) See Schneider v. Norris;2 M. Preston, p. 56; Tupper vy. Foulkes,
& 8. 286; Geary v. Physic, 5 B. & 9C.B.N.S. 797, 803.
SECT. II. CONTRACTS UNDER SEAL. 77

the authority or power in pursuance of which the deed is
executed. The Statute of Frauds, which requires contracts
relating to certain matters to be made in writing and signed,
does not apply to contracts under seal; therefore contracts
under seal, though relating to matters within that statute, do
not require to be signed in addition to the ordinary formali-
ties of the execution of the deed (a).

The ceremony of sealing is sufficiently performed if a
seal or other instrument be impressed on the deed with an
intent to seal it, although no impression appear ; and a deed
purporting to have been sealed and delivered, in the ab-
sence of evidence to the contrary, will be presumed to have
been properly sealed (b). An instrument purporting to be
signed only and not sealed, and which in fact was signed
only and not sealed, or intended to be sealed, as a deed, was
held to be merely a simple agreement, notwithstanding a
seal appeared opposite the signatures of the parties (¢).

One seal will serve for several persons, if it sufficiently
appears to have been intended and used as the seal of
each (d) ; but a seal used and intended for the seal of one
person only will not afterwards supply the want of sealing
by another (ce). Certain parties to a deed were described
therein as members of a corporation, and the deed purported
to be made and executed by the corporation and was sealed
with a seal purporting to be the seal of the corporation ; it
was held that such seal could not be taken as the seal of
those parties as individuals, so as to entitle them to be con-
sidered as parties to the deed in their individual character
and to sue upon the deed in their individual capacity (f).

Delivery is necessary to complete the execution of a deed
and to render it binding. Delivery may be effected by
merely handing over the possession of the deed to the other
party, or by authorizing the other party to take possession
of the deed. It may also be effected by giving the posses-

(a) Aveline v. Whisson,4M.&G. ment v. Gunhouse, 5 Esp, 83.
801; and see Cooch v. Goodman, 2 (c) Clement v. Gunhouse, 5 Esp. 83.
Q. B. 580, 597 ; Cherry v. Hemming, (d) Ball v. Dunsterville, 4 T. R.
4 Ex. 631, 636. 313.

(b) See R. v. St. Paul’s Covent (e) Cooch v. Goodman, 2 Q. B.
Garden, 7 Q. B. 232, 238, (d); Tal- 580, 598.
bot v. Hodson, 7 VYaunt. 251; Cle- J) Cooch v.Goodman, 2 Q. B. 580.

Sealing.

Delivery.
78 ‘ CHAP. I. FORMATION OF CONTRACTS.

sion of the deed to a stranger for the use and benefit of the
other party, the intention being sufficiently expressed se
delivery to a stranger without any explanation of intention
would be inoperative (a). Delivery may also be effected by
mere words expressive of intention, although the party
making the deed retains it in his own possession (b). A
delivery may be evidenced by an acknowledgment by the
party whose deed it is that it is valid and operative (c).

The delivery of a deed may be made upon a condition, so
that the delivery is not complete and the deed is not bind-
ing until the condition is fulfilled. A deed so delivered
upon a condition is called an escrow (scriptum or writing) (d).
The condition on which the delivery depends may be ex-
pressly stated at the time of executing the deed, or it may
be inferred from the circumstances attending the execu-
tion (ce). A delivery as an escrow may be effected though
the party executing the deed retains it in his own posses-
sion, and it may be effected by delivery of the possession of
the deed to a third party; but it is said that it cannot be
effected by delivery of the possession to the party to whom
the deed is made, because such a delivery is an absolute de-
livery if made without words, and if made with words pur-
porting to control the absolute effect, the words are con-
trary to the act, and therefore of no effect, according to the
maxim non quod dictum est, sed quod factuin est inspicitur (f).

Escrow.

Time of A deed takes effect from the time of delivery. A deed is
oes presumed to have been delivered and to take effect from its
date; but it may be shown by extrinsic evidence that the
deed was delivered and became operative on a different day
from that on which it bears date (q). Thus, a deed of charter-

(a) Co. Lit.36 a; Shepp. Touch.
57, 58; Doe d. Garnons v. Knight,
5 B. & C. 671.

(b) Doe d. Gurnons v. Knight, 5 B.
& C. 671; and see Xenos v. Wick-
ham, 14C. B.N.S. 4385; 31 L.J.C.
P. 364; 33 ib. 13.

(c) Tupper v. Foulkes,9 C. BLN.
8.797; 80 L. 3.0, P. 214; Hudson
v. Revell, 5 Bing. 368.

(d) Co, Lit. 836 @; Shepp. Toueh. p.
58; Murrayv.Eurt Stair, 2 B.&U. 82.

(¢) Murray v. Barl Stair, 2 B. &

C. 82; Bowker v. Burdekin, 11 M. &
W.128; Gudgen v. Besset, 6 E. & B.
986; 26 L. J. Q. B. 36.

(f) Co. Lit. 36a; Shepp. Toueh.
59; but see Johnson \. Baker, 4 B.
& Ald. 410; Hudson \. Revell, 5
Bing. 368, 387.

(9) Goddard's case, 2 Co. Rep. 4b;
Taw v. Bury, Dyer, 1678; Stone v.
Bale, 3 Lev. 318; Hall v. Cazenove,
‘A East, 477; Jayne vy. Hughes, 10
Ex. 150; 24 L. J. Ex. 115; and see
Reffelly, Reffell, li. Rep. 1 Prob. 139.
SECT. II. CONTRACTS UNDER SEAL. 79

party was dated 6th February, and contained a covenant
that the ship should sail on or before the 12th February, but
the deed was not in fact executed until the 15th March; it
was held that it might be averred and proved when the deed
was in fact executed; and that the covenant for the ship to
sail on a previous day, having then became impossible, formed
no part of the contract («).

Upon delivery of an escrow and performance of the con-
dition the deed becomes effective from the date of the ori-
ginal delivery ; so that if a bond is delivered as an escrow,
and before the performance of the condition the obligor and
and obligee die, yet on the performance of the condition it
becomes an effective bond and charges the assets of the
deceased obligor ; and so, if a woman before marriage delivers
a bond upon condition and afterwards marries, whereby she
loses her capacity to contract, and after marriage the condi-
tion is performed, the bond is valid and takes effect from the
original delivery (0).

A deed executed in blank, that is, completely sealed and Execution
: : ce : s : +4 of decd in
delivered with an omission of a material particular, is void, plank.
and cannot be made good by subsequently filling in the
blank without a re-execution, or what is equivalent thereto (c).
Thus, a bail bond executed originally without a condition, and
having the condition afterwards inserted, was held void (d).
A deed was executed referring to a schedule annexed, but the
schedule was omitted; it was held that the deed was void
without the schedule, and that the annexation of the sche-
dule subsequently to the execution did not render it effec-
tive (ec). By arailway Act the sale of shares was required
to be by writing under the hands and seals of the parties ; it
was held that a deed was necessary, which must be complete
at the time of delivery, and consequently an instrument exe-
cuted by the vendor with the name of the purchaser left in
blank, which was afterwards filled up by a third party to

(a) Hall v. Cazenove, 4 East, 477. (c) Shepp. Touch. by Preston, 54.
(b) See Graham v. Graham 1 Ves. (d) Powell v. Duff, 3 Camp. 181.
jun. 272, 274, citing Perryman’s case, (e) Weeks vy. Maillardet, 14 East,

5 Co. Rep. 846, and Froset y. Walshe, 568.
Bridg. 51.
Acceptance
of contract
under seal.

80 CHAP. I. FORMATION OF CONTRACTS.

whom it was delivered for that purpose was void (a). Where
a deed contained a blank for a sum of money intended to be
afterwards ascertained and inserted, which was afterwards
done with the assent and in the presence of all parties, the
deed was held valid on the ground that there was no com-
plete execution until the blank was filled in (6). An agent
who is authorized to fill up and execute a deed which is pre-
viously incomplete, so as to render it effective, must be ap-
pointed by deed in the same manner as an agent appointed
to execute a deed in the first instance (c). In arecent case
in which it appeared that a person had executed a deed in
blank and by his alleged negligence had enabled another
person to fill it up and use it in an unauthorized manner, the
opinion was expressed by some of the judges that he might
be estopped by his conduct from denying the validity of the
deed, as against the parties claiming under it; but the ma-
jority of the judges seemed to be of a contrary opinion, on
the ground that the doctrine of estoppel did not apply to
the execution of a deed (d).

The acceptance of a contract under seal is presumed, if
nothing appear to the contrary (ce). Hence a party may in
general sue upon a contract under seal without having exe-
cuted it (f). The presumption of acceptance is said to be
founded on the principle that a man will accept that which
is for his benefit; but it has been extended to the case of
deeds containing onerous charges and liabilities on the part of
the acceptor. In a recent case the Court in delivering judg-
ment said :—‘* Almost every conveyance in truth entails some
charge or obligation which might be onerous in the way of
covenant or lability ; and we think it much safer that one

(a) Hibblewhite v. M‘Morine, 6 M.
& W. 200; and see Tayler v. Great
Indian Peninsular Ry. Co., 28 L. J.
C. 285.

(b) Hudson v. Revett, 5 Bing. 368.

(c) Hibblewhite v. M‘Morine, 6 M.
& W. 200.

(d) Ev p. Swan, 70. B. N.S. 400 ;
Swan v. North British Australasian
Co., 7. & N. 603; 2H. & C.175;
31 L. J. Wx. 425; 32 1b. 273.

(e) See Thompson v. Leach, 2 Ven-
tris, 198; Petrie v. Bury, 3 B. & C.
353, 355; Doed. Garnons v. Knight,
5 B. & C. 671, 692.

(f) Rose v. Poulton, 2B.& Ad. 822;
Morgan v. Pike, 14 C0. B. 473; and
see Wetherell v. Langston, 1 Ex. 634,
643; British Empire Ass. Co. v.
Browne, 12 C. B. 723; Northampton
Gas Light Co. v. Parnell, 15 0. B.
630, and see post, p. 85.
SECT. II]. CONTRACTS UNDER SEAL. 81

general rule should prevail, than that the Courts should be
asked in each particular instance if the deed may not be
considered onerous, and that doubts should be raised as to
the particular moment at which the deed operates by the
assent of the grantee ”’ (a).

A party may disclaim the benefit of a contract under pisclaimer.
seal (b). Such disclaimer may be made by any sufficient
words or acts, and does not require any particular form or
manner of proof (c). It must in substance be clear and un-
equivocal (7). If a contract is made with two jointly and
not severally, and one disclaims, the right to sue on it is
not thereby vested in the other so as to entitle him to sue
alone (e).

A deed poll is a deed made by one party only ; an inden- Deed poll.
ture is a deed made between two or more parties. An inden-
ture is so called because it was formerly the practice to make
a part or original copy of the deed for each of the parties
on the same parchment, and then to separate them by an
indented division, so that on subsequently comparing the
parts they might be identified by the fitting of the indented
edges (f). A deed poll was so called because the edge was
polled or cut even. By 8 & 9 Vict. c. 106, s. 5, it is enacted
that a deed executed after the 1st of October, 1845, purport-
ing to be an indenture, shall have the effect of an indenture
although not actually indented.

The terms indenture, deed, or writing obligatury import a
deed under seal (g). A statute required that certain con-
tracts should be made in writing under the hands and seals
of both parties; it was held that it was intended and re-
quired that they should be made by deed (i).

Indenture.

(a) Siggers v. Evans, 5 BE. & B.
367, 383.

(6) See Butler and Baker's case,
3 Co. 26 6; Doe d. Garnons v.
Knight, 5 B. & C. 671, 694. '

(e) See the authorities collected in
Davidson’s Conveyancing, 2nd ed. 5th
vol. p. 1073, n. (a).

(d) See Doe d. Smyth v. Smyth,
6B. & C. 112.

(e) Wetherell v. Langston, 1 Ex.
634; and see Petrie v. Bury, 3 B. &
C. 355; post, Chap. IT, Sect. I.

(f) Shepp. Touch. 50; 2 Bl. Com.
295

(g) See 1 Wms. Saund. 291 (1);
Aveline vy. Whisson, 4 M. & G. 801,
804; Phillips v. Clift, 4H. & N.168.

(hk) Hibblewhite v. M‘Morine, 6
M. & W. 200.

G
Covenant.

Bonds.

82 CHAP. T. FORMATION OF CONTRACTS.

A promise contained in a deed is called a covenant, also a
special contract or contract by specialty ; and the parties to
a covenant are called respectively the covenantor and the
covenantee.

A bond is a deed wherein a party acknowledges himself
to be bound to another in a certain sum of money to be paid to
him. It is sometimes called an obligation in a special sense
of that word. The parties to a bond are called respectively

Single bond the obligor and the obligee (a). A bond containing merely

and bond
with con-
dition.

Common
money
bond.

Bond with
special con-
dition.

Relief
against
penalty of
bond.

such acknowledgment is called a single bond; but there
may be appended to it a condition that upon the perform-
ance of a certain act the bond is to be void, otherwise
to remain in full force, and it is then called a bond with
a condition (b). The debt acknowledged by the bond
is commonly fixed at a larger sum than the equivalent
of the condition, and so operates to secure its performance,
and is called the penal sum or penalty.

Common money bonds are made subject to the condition
to pay a sum of money with interest at a certain day, on
payment of which at the day the bond is to be void, other-
wise it is to be forfeited. In such bonds the penalty or sum
acknowledged in the bond is generally fixed at double the
amount in the condition. Any other matter may be made
the subject of the condition, as the performance of the cove-
nants in a deed, the faithful performance of an office by the
obligor, or by a third party; such bonds are called bonds
with special conditions.

By the common law the whole penalty became forfeited
and was recoverable upon breach of the condition, according
to the literal meaning of the bond. The Courts of Equity,
however, gave relief against the forfeiture at law, upon pay-
ment of the amount really due under the condition, or of the
damages arising from the breach of the condition. A power
of granting similar relief in certain cases has been given to
the Courts of Law by statute.

Common money bonds with a penalty, which by strict law
were forfeited by non-payment of the money ad diem ac-
cording to the condition, are now subject to the statute 4&5

(a) Shepp. Touch. 367; 2 Bl. Com. 340. (6) Ibid.
SECT. II, CONTRACTS UNDER SEAL. 83

Anne, c. 16, s. 12, by which it is provided that where an ac-
tion is brought upon any bond witha condition to make void
the same upon payment of a lesser sum at a day or place
certain, if the obligor have before the action brought paid
the principal and interest due by the condition, though such
payment was not made according to the condition, yet it
may be pleaded in bar of such action and shall be as effectual
a bar as if the money had been paid according to the con-
dition. The same statute, s. 18, allows the defendant in an
action on a common money bond, who has not paid the
amount due under the condition of the bond before action,
to bring the principal and interest with costs into Court in
full satisfaction and discharge of the bond; and by the
23 & 24 Vict. c. 126, s. 25, the payment into Court may be
pleaded in the action (a).

Bonds with special conditions are now subject to the
statute 8 & 9 Will. III. c. 11, the effect of which is to re-
strict the amount recoverable at law under the bond to the
damages for the breaches of the conditions which can be
proved to have been broken, and to allow the judgment
for the penalty to remain only as a security against further
breaches (4). But the obligor is not answerable in the whole
for more than the amount of the penalty (¢ (c).

Hence a bond with a condition, in effect, binds the Fffect of
obligor to the performance of the condition, as if he had a A
aun, himself by a covenant to perform it; the bond being
for some purposes a more convenient en. for creating the
liability.

No action can be maintained upon the bond until a breach
of the condition ; for the bond, it is said, “is a thing in
action and executory, whereof no advantage can be taken
until there be a default in the obligor” (d). And accordingly
it is held that a bond with a condition creates a debt, not
payable absolutely, but payable only on the contingency of
a breach of the condition (e) ; and in an action on the bond,

(a) See Bullen & Leake, ‘Prece- nalties, post, Chap. V, “Damages,”
dents of Pleading,’ 2nd edit. p. 96. (d) Co. Litt. 206 a.
(8) See Lbid, (e) Cagev. Acton, 1 L. Raym.515 ;
(ce) Wildev. Clarkson,6T.R. 303; 8. C. nom. Gage v. Aston, 1 Salk.
Branscombe vy. Scarbrough, 6 Q. B. 325; Milbourn v. Ewart, 5 'l. R. 381.
13. And see as to relief against pe-
a2
Specific
perform.
ance of con-
dition of
bond in
equity.

Considera-
tion not
necessary
in contracts
under seal.

Gratuitous
promises.

Failure of
considera-
tion,

84 CHAP. I. FORMATION OF CONTRACTS.

a plea showing that the condition has not not been broken
is a good plea (a). So also, asa cause of action on the
bond first accrues upon a breach of the condition, the Statute
of Limitation begins to run only from that date, and only
as to that breach; and a new breach gives a new cause of
action (b).

So in equity, bonds with special conditions are considered
according to the intention of the parties, as agreements
having the primary object of carrying out the condition,
which may be enforced specifically, if the matter of the con-
dition is within the jurisdiction of the Court; and they are
not, in general, considered as giving an option of forfeiting
the penalty instead of performing the condition (c).

Contracts under seal have certain peculiar incidents, of
which the following are the most important :—In contracts
made by deed under seal, a consideration is not essential to
give validity to the promise, as it is in the case of simple
contracts (d). The object of the rule with simple contracts
is to ensure an intention on the part of the promiser that
his promise should be binding, and to avoid giving effect to
promissory expressions which are not sointended. The same
security is not required for contracts under seal, because a
deliberate intention to make a binding promise seems to be
sufficiently ensured by the formalities required to be gone
through in the execution of a deed (e).

It follows from a consideration not being essential in a
contract under seal, that it is possible to make a gratuitous
promise, or one without any consideration, in a manner
which shall be binding on the promiser, by using the form
of a deed; although such a promise cannot be validly made
in the form of a simple contract (f).

As a consideration is not essential to the validity of a
covenant or promise made under seal, the failure of the con-

(a) Beswick vy. Swindells,5B.& Ad. sen. 528; Howard y. Woodward, 34
914; 3 A. & E. 868. L. J.C. 47.

(6) Sanders vy. Coward, 15 M. & (d) 2 Bl. Com. 446; Fallowes vy.
W. 48; Tuckey v. Hawkins, 4C.B. Taylor, 7T. R.475, 477 ; ante, p. 10.
655. (e) See Plowden, 308.

(¢) Challiner y. Chilliner, 2 Ves. (f) See ante, p. 10.
SECT. 17. CONTRACTS UNDER SEAL. 85

sideration, if in fact one exists, is not, in general, material
to the validity of the covenant. Hence, in a deed between
two parties containing covenants on both sides, although
the covenants on the one side may form in fact, and may be
stated to be, the consideration of the covenants on the other
side, if the one party has executed the deed but the other
party has not, the former may be bound by the covenants
which he has executed although he has no remedy by action
against the other party.

But in such case the mutual covenants may be so de-
pendent on one another, either from the nature of their
matter or by the construction of their terms, as to render the
covenants on the one side conditional on the validity, or the
performance, of the covenants on the other side ; and then the
covenants on the one side are not absolutely binding until
the fulfilment of the condition by the execution of the
deed, or by the performance of the covenants on the other
side (w). Thus, covenants in leases which depend on the
interest in the lease and are made because the covenantor

has that interest—such as those to repair and pay rent °

during the term,—are not obligatory if the lessor does not
execute, not because the lessor is not a party, but because
that interest has not been created to which such covenants
are annexed, and during which only they operate; the
foundation of the covenant failing, the covenant fails also.
Unless there be a term granted, a covenant to repair during
the term is void ; but with respect to collateral covenants not
depending on the interest in the land, it is otherwise, and
they are obligatory (0).

Though in a contract under seal the existence of a con-
sideration is immaterial, yet if a consideration for the con-
tract in fact exists, it must be a lawful one ; and if the con-
sideration is unlawful the contract is void, and the illegality

(a) Rose v. Poulton, 2B. & Ad. Cardwell v. Lucas, 2M. & W.111;
822; Pitman v. Woodbury, 3 Ex. 4, Swatiman v. Ambler, 8 Ex. 72; and
11; Morgan v. Pike, 14 C.B.473; see Pistor v. Cater, 9 M. & W. 315;
Northampton Gas Light Co. v. Par- Cooch v. Goodman, 2 Q. B. 580;
nell, 15 C. B. 630; and see astode- Aveline v. Whisson, 4 M.& G. 801;
pendent covenants, post, Chap. TI, How v. Greek, 3 H.& 0. 391; 341. J.
Sect. IT. Ex. 4.

(b) Pitmany. Woodbury, 3 Ex. 4;

Illegality
of consids-
ration,
Priority of
contracts
under seal
in adminis-
tration of
assets.

Remedy
against
heir and
devisee.

86 CHAP. I. FORMATION OF CONTRAC'IS.

of the consideration may be alleged and proved even in con-
tradiction of the written language of the deed (a).

A contract under seal is considered as of a higher nature
than a simple contract in respect of having better remedies
annexed to it.

In the administration of the legal personal assets of a de-
ceased debtor contracts under seal are entitled to priority
over simple contracts ; so that an executor or administrator
is bound to discharge bonds, covenants, and other contracts
under the seal of the deceased, out of such assets before lia-
bilities created by simple contract (b). In the administration
of the equitable assets, that is, such assets as can be reached
only by means of a Court of Equity, there is no priority ; but
such assets are applied in discharging all liabilities pari
passu (c).

If in a contract under seal the covenantor or obligor ex-
presses that he binds himself and his heirs, upon his death
his heir becomes hable by the common law to discharge the
contract to the extent of the lands or real assets descended
to him from the covenantor or obligor (d). A coutract which
bound the heir taking lands by descent did not at common
law give any remedy against a devisee of the lands; this
was altered by the 3 Wm. & M. c. 14, for which the statute
] Wm. IV. c. 47 has been substituted. These statutes have
given a hke remedy against a devisee to the extent of the
lands devised (e). A creditor of the deceased by a debt
binding the heir may proceed primarily against the heir or
devisee in respect of the real assets of the deceased, not-
withstanding the rule that the personal estate is the primary
fund for the payment of debts; such rule applying only in
equity, between the real and personal representatives of the
deceased, and being enforced by entitling the heir or devisee
in equity, after payment of the debt, to stand in the place

(a) Collins +. Blantern, 1 Smith’s Williams Ex. 5th ed. 1526; and see
L. C. 5th ed., 310; Paxton v. Pop- post, Chap. VI, Sect. III, “ Assign-
ham, 9 East, 408; and see post, ment of Contracts upon Death.”

Chap. TIT, Sect. TV, “ Tlegality.” (e) As to the remedies against the
(b) See Wms. Ex. 5th ed. 909. heir and devisee, see Bullen & Leake,
(c) See 2b. p. 1520. , Pree. Pl. 2nd ed. 145.

(d) Harbert’s case, 3 Co. Rep. 12 a;
SECT. Il. CONTRACTS UNDER SEAL. 87

of the creditor to reimburse himself out of the personal es-
tate in the hands of the executor (a).

If the covenantor or obligor binds himself only and does
not particularly express in the contract that he binds his heirs
also, there is no remedy by action against the heir or devisce
taking the land of the deceased covenantor or obligor, the
only remedy by action being against the executor or admin-
istrator m respect of the personal estate as in the case of a
simple contract, though the contract, being under seal, is en-
titled to be discharged out of the legal personal assets in
priority to simple contracts.

But by the statute 3 & 4 Wm. IV. c. 104, the real assets Real assets
of a deceased debtor are now charged in equity with the eae
payment of all his debts whether created by simple contract Saat
or by contracts under seal, with areservation of the priority contracts.
of contracts under seal in which the heirs are bound (4). The
statute enacts to the effect that when any person shall die
entitled to any real estate which he shall not by his last will
have charged with the payment of his debts, the same shall
be assets to be administered in Courts of Equity for the pay-
ment of the just debts of such persons as well debts due on
simple contract as on specialty ; and that the heir or devisee
of such debtor shall be liable to the same suits in equity at
the suit of the creditors of such debtor, whether creditors by
simple contract or by specialty, as the heir or devisee of any
person was before the passing of that Act lable to at the
suit of creditors by specialty in which the heirs were bound ;
provided always that in the administration of assets by
Courts of Equity under that Act, all creditors by specialty
in which the heirs are bound shall be paid the full amount
of the debts due to them before any of the creditors by simple
contract or by specialty in which the heirs are not bound shall
be paid any part of their demands.

Another superiority in contracts under seal over simple period of

i i ieS 18 Ol limitation
contracts in respect to their remedies is given by the statutes , a

of limitation. Where the cause of action arises out of ai tmabtenader
seal.

(a) Quarles v. Capell, Dyer, 204, (6) See Richardson v. Jenkins, 1
b; Galton v. Hancock, 2 Atk. 424, | Drewry, 477.
426.
Merger.

Estoppel by
deed.

Release and
alteration of

deed,

Record.

'

88 CHAP, I. FORMATION OF CONTRACTS.

contract under seal, the period of limitation is, in general,
twenty years; where it arises out of a simple contract, the
period, in general, is six years («).

There are some peculiar doctrines affecting contracts un-
der seal which it is sufficient here merely to mention.

A contract under seal being considered as of a higher na-
ture than a simple contract operates in law in merger of
a simple contract on the same matter ; that is to say, if a bond
or covenant under seal is given to secure a simple contract
debt, the simple contract security is merged in the contract
under seal and is thereby extinguished, according to a ge-
neral rule of law that a party, by acquiring a security of a
higher nature in legal operation than the one he already
possesses, merges and extinguishes his legal remedies upon
the minor security (d).

The doctrine of estoppel applies to all the recitals and
statements made by a party in a deed under his hand and
seal, and by virtue of it such recitals and statements are
held conclusive against the party, and he is estopped from
denying their truth, in any legal proceedings taken upon the
deed between the same parties and in the same right, or
those claiming through them ; but the estoppel does not ex-
tend to proceedings or purposes collateral to the deed (c).

A contract under seal can be released, rescinded, or altered
only by deed (d).

Cuar. I. Secr. IIT. Contracts or Rucorp.

   

RECO, 1.2 sidauereamecdioeacouaiieen OPACHON. seeseves caecaucece

Judgment Effect in charging Land

Warrant of Attorney and Cog- Priority of Judgment Debt.
TOV UL cssccnetaaeyeranaecwmeninantaare Recognizance ..........ccceeceeee

Remedies upon Judgment......
Effect of Judgment upon Cause

A RECORD is an entry in rolls

(a) See post, Chap. IV, Sect. XI,
“Statutes of Limitation,”

(4) See post, Chap. IV, Sect. X,
“« Merger.”

(c) Doe d. Christmas v. Oliver,
2 Smith’s L. C. Sth ed. 634; Du-

  

Statute Merchant and Staple... 95
Debts created by Statute

of parchment of the acts and

chess of Kingston's case, ib. 642;
Letriev, Nuttall, V1 Ex. 569 ; VWetters
v. Brown, 1 H. & C. 686; 32 L. J.
Ex. 138 ; Carpenter v. Buller, 8 M.
& W. 209.

(@) Countess of Rutland’s case, 5
¥

SECT. III. CONTRACTS OF RECORD. 89

proceedings of a Court of Record. A record is conclusive
proof of its contents, and no averment or evidence is ad-
missible to contradict it. But the existence of a record may
be denied; and the fact so disputed is then tried, not as
facts ordinarily are tried by jury, but by inspection of the
rolls of the Court, in order to see whether there is such re-
cord as is alleged and what are its contents («). The enrol-
ment or entry in the roll of the Court is essential to consti-
tute the record and to give it its peculiar efficacy (b).

Contracts by record comprise Judgments, Recognizances,
and Statutes merchant and staple.

The judgment of the Court in an action, when final, is Judgments
entered upon the roll of the Court containing the record of
the action. Where the judgment decides that the plaintiff
shall recover against the defendant a certain sum of money
as debt, or damages, or costs of suit, a contract is created by
the judgment whereby the defendant is bound to pay that
sum. So, where judgement is given for the defendant, and
a sum of money is awarded by the judgment to be paid by
the plaintiff to the defendant for his costs of suit, the judg-
ment creates a contract for the payment of that sum (c).

A judgment, being a simple mode of embodying a con-
tract, attended with easy proof and convenient remedies, is
sometimes used for that purpose by agreement between the
parties without any previous litigation ; also, where a suit
has been commenced and is pending, the parties may come
to an agreement respecting the entry up of judgment, and
the terms on which it is to be enforced.

A warrant of attorney is an instrument in writing, usu- Warrant of
ally under seal (¢), giving authority to enter up judgment antomey.
against the party executing it, without process; it is com-
monly made subject to a defeasance prescribing the terms
and conditions upon which the judgment may be entered

Co. Rep. 26 a; Blake’s case, 6 Co. (b) Glynn v. Thorpe, 1B. & Ald.
Rep. 43 6; and see post, Chap. 1V, 153.
Sect. I. (c) 2 Bl. Com. 465.

(a) 3 Bl. Com. 331; Co. Lit. 117 4; (d) It need not be under seal, ex-

260 a@; as to what are Courts of cept as to an authority to release
Record, see 7.; Reg. v. Hughes, L. errors. Kinnersley v. Mussen, 5 Taunt.
Rep. 1 P. C. 81, 87. 264; Brutlon v. Burton, 1 Chit. 707.
Cognovit
actionem.

90 CHAP. I. FORMATION OF CONTRACTS.

and execution taken out. A cognovit actionem ig a an in-
strument in writing, confessing the cause of action in a pend-
ing suit, which authorizes the plaintiff to obtain judgment ;
it may also be made subject to terms and conditions con-
trolling its application.

The judgment, whether given with the consent of the
parties or in imvitum, must be entered according to the
forms and course of procedure of the Court in which it is
entered up, and is accompanied with the regular incidents
and consequences of a judgment; but a warrant of attorney
or cognovit actionem authorizing the entering up of a judg-
ment may be made subject to any terms or conditions which
the parties agree upon as to the entering up of the judg-
ment and putting it into execution, and thus create a bind-
ing contract between the parties which in effect modifies
and controls the judgment and the execution upon it accord-
ing to the terms of the instrument (a).

These instruments are subject to certain statutory recula-
tions. The statute 1 & 2 Vict. c. 110, s. 9 enacts “ that no
warrant of attorney or cognovit actionem given by any per-
son shall be of any force, unless there shall be present some
attorney of one of the superior Courts on behalf of such per-
son, expressly named by him and attending at his request, to
inform him of the nature and effect of such warrant or cog-
novit before the same is executed; which attorney shall
subscribe his name as a witness to the due execution there-
of, and thereby declare himself to be attorney for the person
executing the same and state that he subscribes as such
attorney.”

By the statute 3 Geo. IV. c. 39, ss. 1, 2, 3, a warrant of
attorney or cognovit actionem, and the judgment and execu-
tion thereon, is to be deemed fraudulent and void against the
assignees in bankruptcy of the party executing it, unless it
shall have been filed under that Act within the space of
twenty-one days from the execution thereof, or unless judg-
ment shall have been signed or execution issued on it within
the same period (6).

And by the same statute, s. 4, ‘If such warrant of attor-

(a) See Wentworth v. Bullen, 9 B. (4) See 12 & 13 Vict. c. 106, s. 186.
& C. 810, 848,
SECT. III. CONTRACTS OF RECORD. 91

ney or cognovit shall be given subject to any defeasance or
condition, such defeasance or condition shall be written on
the same paper or parchment on which such warrant of
attorney or cognovit actionem shall be written before the
same shall be filed, otherwise such warrant of attorney or
cognovit actionem shall be null and void to all intents and
purposes.” This section is interpreted as rendering the
instrument void only against the assignees in bankruptcy,
like the former sections, and not void between the parties
to it (a).

A judgment may be enforced by taking out execution ac- The reme-
cording to the regular course of procedure. In the superior ede
courts execution may, in general, issue within six years from execution.
the recovery of the judgment without a revival of it; but
after the lapse of that interval, or upon the death of either
of the parties, the judgement must be revived before execu-
tion can regularly issue (0).

A judgment may also be treated as a distinct contract on Action on
which a new action may be brought (¢). An action of debt i atl
would formerly lie upon a judgment of the ancient county
courts (cd); but it is held that an action will not le upon a
judgment of a county court established by 9 & 10 Vict.

c. 95, because such an action would be inconsistent with,
and defeat the provisions of that statute as to the remedy
on the judgment (e); nor can an action be brought in a
county court on a judgment of a superior court (f). A de-
cree of a court of equity to pay a sum of money founded on
equitable grounds only, as a decree in a suit for the specific
performance of an agreement, does not create a contract on
which an action at law will

(a) Morris v. Mellin, 6 B. & C.
446, Holroyd, J., dissentiente ; Ben-
nett v. Daniel, 10 B. & C. 500,
Parke, J., dissentiente; see Bryan v.
Child, 5 Ex. 368. As to warrants of
attorney and cognovits see 2 Chitty’s
Practice, 12th ed., 942, 949; Dixon’s
Lush’s Practice, p. 800.

(b) C. L. P. Act, 1852, s. 128.
The mode of reviving a judgment is
by writ of revivor or by a suggestion
entered upon the roll. C. L, P. Act,

lie (g).

1852, s. 129.

(ce) Williams y. Jones, 138 M. & W.
628, 633, 634.

(d) Read v. Pope, 1C.M. & R.
302; Williams v. Jones, 13M. & W.
628.

(e) Berkeley v. Elderkin, 1 BE. &
B. 805; 22 L. J. Q. B. 281; Austin
y. Mills, 9 Ex. 288; 23 L. J. Ex. 40.

(f) 19 & 20 Vict. c. 108, 8. 27.

(g) Carpenter v. Thornton, 3 B. &
Ald. 52; and see Henderson v, Hen-

The judgments of
Effect of
judgment
in merger o:
the cause of

action.

, on which it is founded.

92 CUAP. I. FORMATION OF CONTRACTS.

foreign courts (including Irish, Scotch, and colonial judg-
ments) are not records in this country and have not the
same effect; but where they establish a debt between the
parties an action may be brought to recover the amount as
a simple contract debt (a).

The right to bring a new action upon a judgment is
qualified by the statute 43 Geo. IIT. c. 46, s. 4, which enacts
“that in all actions upon any judgment recovered, the
plaintiff in such action on the judgment shall not recover or
be entitled to any costs of suit, unless the Court in which
such action on the judgment shall be brought, or some judge
in the same Court shall otherwise order.’? Such an order
will not, in general, be made where the plaintiff might have
realized his judgment by execution or otherwise (0).

The record of a judgment is conclusive as to its contents ;
consequently, in an action on a judgment, matter forming
ground of error in the judgment cannot be pleaded by way
of defence («) ; nor can the pendency of proceedings in error
be pleaded in bar to an action on a judement (d) ; but the
record may be amended or set aside by the Court which
made it, or by the Court of error, upon sufficient grounds and
upon regular proceedings being taken for that purpose (¢).

A judgement merges or extinguishes the cause of action
“Tf there be a breach of contract
or wrong done or any other cause of action by one against
another, and judginent be recovered in a court of record,
the judgment is a bar to the original cause of action, because
it is thereby reduced to a certainty and the object of the
suit attained so far as it can be at that stage, and it would
be useless and vexatious to subject the defendant to another
suit for the purpose of obtaining the same result ; hence the
legal maxim, ‘ transit in rem jucdicatam’—the cause of ac-

derson, 6 Q. B. 288, 296; Henley v.
Soper, 8 B. & C. 16, 20.

(a) See ante, p. 74.

(b) Hanmer v. White, 12 M. & W.
519; Adams v. Ready, 6 H. & N.
261; Dickinson v. Angell, 3 B. & 8S.
840; 32 L. J. Q. B. 183; and sce
further as to this section 1 Chitty’s
Practice, 12th ed., 494: Lush’s Prac-

tice by Dixon, 897.

(ec) Dick v. Tolhausen, 4 H. & N.
695.

(d) Snook v. Mattock, 5 A. & E.
239, 248 ; Riddle vy. Grantham Canal
Nav., 16 M. & W. 882.

(ec) Per Lord Mansfield, C.J., 2
Burr. 1005, 1009; and see De Medina
«. Grove, 10 Q. B. 152,
SECT. III. CONTRACTS OF RECORD. 93

tion is changed into matter of record, which is of a higher
nature, and the inferior remedy is merged in the higher” (a).
If another action is brought for the same cause, the judg-
ment recovered against the defendant in respect of that
cause of action may be pleaded in bar in the second ac-
tion (b).

So, a judgment recovered against the plaintiff in an action, Effect of
if the judgment be given upon the merits of the case, aL
operates as an estoppel against the plaintiff bringing another
action for the same cause, and may be pleaded in bar to
such action (c).

By the statute 1 & 2 Vict. c. 110, s. 18 it is enacted to Effect of

the effect, that a judgment entered up against any person in ig ee
any of the superior courts at Westminster shall operate as lands of
a charge upon all lands, tenements, and hereditaments to insais
which such person shall at the time of entering up such
judgment or at any time afterwards be entitled, and shall
be binding as against the person against whom judgment
shall be so entered up, and against all persons claiming
under him after such judgment ; and every judgment credi-
tor shall have the same remedies in a court of equity against
the hereditaments so charged as he would be entitled to in
case the judgment debtor had power to charge the same,
and had by writing under his hand agreed to charge the
same, with the amount of such judgment debt and interest
thereon. The same statute, s. 19, provides that no judg-
ment shall by virtue of that Act affect any lands, tenements,
or hereditaments as to purchasers, mortgagees, or creditors,
unless and until such judgment shall have been registered
in the manner therein provided ; and the statute 3 & 4 Vict.
c. 82, s. 2 further provides that no judgment shall by virtue
of the above Act affect any lands as to purchasers, mortga-
gees, or creditors unless and until registration, “ any notice
of any such judgment to any such purchaser, mortgagee, or
creditor in anywise notwithstanding.”

(a) Per Parke, B., King v. Hoare, (c) Vooght v. Winch, 2 B. & Ald.
13 M. & W. 494, 504. 662; General Steam Navigation Co.
(b) Smith v. Nicholls, 5 Bing. N.C. v. Guillow, 11 M. & W. 877.
208, 220; Todd v. Stewart, 9Q.B. 759.
94 CITAP. I. FORMATION OF CONTRACTS.

The statute 18 Vict. c. 15, s. 4 enacts that no judgment
which might be registered under the said Act 1 & 2 Vict.
c.110 shall affect any lands, tenements, or hereditaments, at
law or in equity, as to purchasers, mortgagees, or creditors,
unless and until it shall have been registered according to
that Act, any notice notwithstanding. This enactment takes
away the effect which the judgment had against purchasers,
mortgagees, or creditors without registration, independently
of the statute 1 & 2 Vict. c. 110.

By the statute 2 & 3 Vict. c. 11, s. 4 it is enacted that all
judgments registered under the 1 & 2 Vict. c. 110 shall
after the expiration of five years be null and void against
lands as to purchasers, mortgagees, and creditors, unless re-
registered within five years in the manner therein provided.

By the statute 23 & 24 Vict. c. 38, s. 1 it is enacted
that no judgment to be entered up after the passing of that
Act shall affect any land as to a bond fide purchaser for va-
luable consideration or mortgagee, whether such purchaser
or mortgagee have notice or not of such judgement, unless
a writ or other due process of execution of such judgment
shall have been issued and registered as therein provided,
and shall be executed and put in force within three months
from the time when it was registered.

And the statute 27 & 28 Vict. c. 112, s. 1, in order to
assimilate the law affecting freehold, copyhold, and lease-
hold estates to that affecting purely personal estates in
respect of future judgments, enacts that no judgment to be
entered up after the passing of that Act shall affect any land,
until such land shall have been actually delivered in execu-
tion by virtue of a writ of eleyit or other lawful authority in
pursuance of such judgment.

Revival of Upon the death of a judgment debtor his real assets may

judgment

against heir.

be charged in execution by taking the proper proceedings
to revive the judgment against the heir and tenants of the
lands ; but the heir is chargeable as tenant of the lands only
« and not as heir, and is not liable to an action on the judg-
ment as he is on a contract under seal of the ancestor in
which he is expressly named (a).

(a) See ante, p. 86; Jeffreson v. Chitty’s Practice, 12th ed., 1127,
Morton, 2 Wms. Saund. 7 (4) ;
SECT. JI]. CONTRACTS OF RECORD. 95

A judgment also gives the judgment creditor priority in Priority of
the administration of the assets of the deceased judgment {adeno
debtor over creditors by contracts under seal and by simple
contracts (a) ; subject to the statute 23 & 24 Vict. c. 38, s. 3,
which enacted to the effect that no judgment which had not
then been or which should not thereafter be registered,
under the Acts in force for that purpose, so as to bind lands
as against purchasers, mortgagees, or creditors, should have
any preference against heirs, executors, or administrators in
their administration of their ancestor’s, testator’s, or intes-
tate’s estates (0b).

N

Recogni-
zance.

A recognizance is a writing obligatory acknowledged be-
fore a judge or other officer having authority for that pur-
pose, and enrolled in a Court of Record. It is conditioned
to secure various objects, as to appear at the assizes, to
keep the peace, to become bail for the defendant in an
action. A recognizance is proved by the record, and the
remedy upon it is by writ of scire facias or by action. It
operates as a charge upon the lands of the party bound
from the time of enrolment on record; and it takes pre-
cedence in the administration of assets after judgment debts,
but before contracts under seal (c).

Statutes merchant, statutes staple, and recognizances in Statute
the nature of a statute staple were acknowledgments of yerchen®
debt made in writing before officers appointed for that pur- ee as
pose, and enrolled of record. They bound the lands of the zance inna-
debtor ; and execution was awarded upon them upon default (uo aoe
in payment without the ordinary process of an action. These
securities were originally introduced for the encouragement
of trade, by providing a sure and speedy remedy for the re-

covery of debts between merchants, and afterwards became

& Sm. 324; 34 L. J.C. 661; Kemp v.

(a) Williams on Executors, 5th
ed., 898 ; 2 Bl. Com. 511.

(b) See Fuller v. Redman, 26 Beav.
600; 29 L. J. C. 324; In re Rigby,
33 L. J. ©C.149; In re Turner, 33 L.
J. 0.232; Evans vy. Williams, 2 Drew.

Waddingham, L. Rep. 1 Q. B. 355;
35 L. J. Q. B. 114.

(e) Bacon, Abr. tit. “ Execution”
(B); 2 Bl. Com. 341; Williams
FExecutors, 5th ed., 905,
Debts cre-

ated by sta-

tute.

96 CHAP. I. FORMATION OF CONTRACTS.

common assurances, but have now become obsolete and
therefore require no further mention («).

Debts are sometimes created by statutes, as debts for
penalties imposed by penal statutes and payable to an in-
former or to a party grieved, debts for calls under the Joint
Stock Companies Acts, debts for tolls payable under statutes,
and others. Such debts cannot strictly, in respect of their
origin, be referred to either of the forms of contract recog-
nized by common law, which are mentioned above. Being
the creatures of statute law, their form and incidents are
those imposed by the statute which creates them, and must
be sought in the particular provisions of the statute (0).

Accordingly, it has been held that an action by a company
for calls under the Companies Clauses Consolidation Act is
not an action on a contract without specialty within the
meaning of the Statute of Limitations (21 Jac. I. c. 16, s. 3)
presonibing six years as the limit for such actions (c) ; and
it has also been held that such calls are to be allowed as
specialty debts in the administration of the debts of a de-
ceased shareholder (d).

It was held in the full Court of Appeal in Chancery that
a call made upon a member of a company as a contributory’
under the provisions of the Winding Up Act of 1848 (11 &
12 Vict. c. 45, s. 83) did not take priority as a specialty debt
over simple contract debts in the administration of assets (e).
“The Joint Stock Companies Act, 1887,” 20 & 21 Vict.
c. 14, s. 13, enacted that calls made on a contributory should
be deemed to be specialty debts due from such contributory
to the company; and “ the Companies Act, 1862,” 25 & 26
Vict. c. 89, s. 75, has enacted to the same effect.

A debt for calls by a company founded on colonial sta-

(a) As to these forms of contract v. ges 13 C. B. 826.

see Bacon, Abr. tit. “ Execution” B ; . Wentworth v. Chevill, 26 L. J.
Underhill v. Devereux, 2 Wms.Saund. — C. 760.
68 ; Williams’ Executors, 5th ed., 905. (e) Robinson's ease, 3 Sm. & Gif.

(b) As toa debt under a bye-law, 272;6D.M.& G. 572; 26L. J.C.
see Tobacco Pipe Makers’ Co.v. Lo- 95; see as to this liability, Williams
der, 16 (). B. 765. v. Harding, Law Rep. 1 H.L. 9.

(ce) Cork § Bandon Railway Oo.
= SECT. IV. CONTRACTS IN WRITING. 97

tutes, so far as it is recognized in this country, is a simple
contract debt (a).

An action under the statute 1 Ric. II. c. 12, which gave to
creditors an action of debt against the sheriff upon the escape
of a prisoner out of execution to recover the sum for which he
was charged in execution (since altered by statute 5 & 6 Vict.
c. 98, s. 31, to an action only for the damages sustained),
was held not to be an action on contract without specialty,
and so not barred by the 21 Jac. I.'c. 16, 8. 3 after six
years ()). An action for tolls payable under a statute by the
owners of shipping passing a harbour was held to be an
action on a specialty within the meaning of the Statute of
Limitations, 3 & 4 Wm. IV. c. 42, s. 3, which might be
brought at any time within twenty years (c).

Caapr. I. Szction IV. Contracts in Writtna.

 

Contracts made in Writing by ' duced by Mistake, Fraud,
Agreement of the Parties... 98 Or Diiress jor scteyesing . 108
Contracts required by Statute that a written Contract was
to be made in Writing ...... 99 signed conditionally ..,... 109
Contracts contained in several Extrinsic Evidence admissible
written Documents ......... 101 of Usages of Trade
Contracts partly in Writing to annex Incidents ...
and partly by Parol ......... 101 to explain Terms ............
Contract in Writing cannot be Extrinsic Evidence admissible
varied by extrinsic Evidence 103 to identify the Parties ...... 119
Extrinsic Evidence admissible to identify the Matter of the
to prove CONGACE  snasitnamnas: Ansan 119
the making of the Contract 106 | Extrinsic Kvidence admissible
that the Writing was not in- of DMegality os. ev seecrayevene 123
tended as a Contract ..... 107 | Construction of Written Con-
that the Contract was in- EEA CUS scjacioas exlnqavigtarsagiinices 123

Conrracts in writing are not recognized by the common Contracts
law as a distinct form of contract. All contracts except ™ *"""®
simple contracts are necessarily contained in a written form.
Simple contracts arising from agreement may be made in
the form of writing ; but whether they are so or not, they
are all called by the general term parol contracts, importing

(a) See ante, p. 75. (c) Shepherd vy. Hills, 11 Ex. 55;
(6) Jones v. Pope, 1 Wms. Saund. 25 L. J. Hx. 6,
37.
98 CHAP. I. FORMATION OF CONTRACTS.

that they are made by mere agreement and not by deed
under seal (a).
Gsatnees If the parties come to an agreement with the intention
ae oy and upon the understanding that their agreement is to be
agreement reduced into writing, and that they are not to be bound
one pr until it is reduced into writing, there is no contract between
them until the writing is drawn up and assented to by both
as their agreement. But if the parties come to a final
agreement as to the terms, they may be bound by that
agreement, though they intend to reduce the terms into
writing for the purpose of becoming bound in a more formal
manner, or for the purpose of preserving a memorial of the
terms, or for any purpose other than that of making the
writing exclusively their agreement (0).

Whether the parties intend to make no agreement until
the writing is drawn up, or whether they intend to make a
perfect agreement to be afterwards reduced into writing, is
a question of fact. But the circumstance, that the parties
do intend a subsequent writing to be drawn up, is said to
be strong evidence that they do not intend to be bound by
the preliminary agreement as to the terms (c).

The vendor and purchaser of an estate came to an agree-
ment as to the terms, which were written down on paper ;
the vendor signed the paper but the purchaser did not, and
in the same paper the vendor subjoined a letter to his soli-
citor desiring him to prepare a proper agreement for the
purchaser and him to sign; it was held that the original
agreement was binding on the vendor notwithstanding the
intention to have a more formal agreement (d). The pur-
chaser of an estate wrote to the vendor offering a certai
price, and the vendor replied: “ We accept your offer. If
you approve of the enclosed sign the same, and we will on
receipt of the deposit sign you a copy ;’’ it was held that

(a) Rannv. Hughes, 7 T. R. 350 (a); (2) See Ridgway v. Wharton, 6H.
Beckham vy. Drake, 9M. & W. 79, 1. C. 238, 264, 268, 305; Fowle v.
92; Pym v. Campbell, 6 HE. & B.  Freemun, 9 Vesey, 351; Gibbins v.
370, 374. The term parol meaus North-Eastern Metropolitan Asylum
by word of mouth, as distinguished Destrict, 11 Beav.1. 7
from written, except when used, as (¢) See Ridgwayv. Wharton, supra;
above, to denote simple contracts by and see Filmer y. Burnby, 2M. & G.
agreement not under seal. See 3 529.

Bl. Com. 367. (d) Fowle v. Freeman, 9 Ves, 851.
SECT. IV. CONTRACTS IN WRITING. 99

the two letters constituted an agreement which was bind-
ing, though it was intended to be carried into effect by a
more formal document, and though such document was
never signed (a). The terms of a contract of sale having
been settled between two brokers, the communication finally
accepting the terms concluded with the words “ contract in
due course ;”? it was held that these words did not import
that there should be no contract until a formal contract was
drawn up and delivered, but only an intention to set out the
terms more fully for further security, and that the accept-
ance was absolute notwithstanding this intention (0).

The parties may also validly agree to make or sign a
written document to be drawn up and to contain certain
terms then settled; but an agreement to enter into a writ-
ten contract, the terms of which are to be afterwards settled
between the parties, does not bind the parties to anything (c).
A person, having received an offer to sell an estate, returned
an answer that he accepted the offer, subject to the terms
of a contract bemg arranged between his solicitor and the
seller ; it was held that there was no contract (d). A memo-
randum to the effect that A. had paid £50 as a deposit and
in part payment of £1000 for the purchase of a house, “the
terms to be expressed in an agreement to be signed as soon
as prepared,” was held to create no binding contract, be-
cause the conditions of sale were to be subject to a future
agreement (e).

The reduction of an agreement into writing was held to
subject the document to be stamped as an agreement,
though the agreement was binding before the reduction into

writing (/).

By the statute law contracts relating to some matters are Sane
required to be made in the form of writing, with or without steno

other formalities ; and contracts relating to some matters be made in

writing.
are admitted to proof only by written evidence.
(a) Gibbins v. North-Eastern Me- (d) Honeyman v. Marryat, 21
tropolitan Asylum District, 11  Beav.14; 26L.J.C.619; 6 H.L.C.
Beay. 1. 112.
(6) Heyworth v. Knight, 17 C. B. (e-) Wood v. Medgley, 5 DeG. M.
N.S. 298; 33 L. J. C. P. 298. & G. 41.

(c) See Ridgway v. Wharton, 6 H. (f) Knight v. Barber, 16 M. & W.
L. C. 238, 305. 66.
H2
Contracts
within the
Statute of
Frauds.

Promises
within
Lord Ten-
terden’s
Act.

100 CHAP, I. FORMATION OF CONTRACTS.

The Statute of Frauds, 29 Car. II. c. 3, passed “ for the’
prevention of fraudulent practices which are endeavoured to
be upheld by perjury or subornation of perjury,” by the
4th section, after enumerating several classes of contracts,
enacts to the effect that “ no action shall be brought whereby
to charge”? any person upon such contracts ‘unless the
agreement upon which such action shall be brought, or some
memorandum or note thereof, shall be in writing and signed
by the party to be charged therewith, or some other person
thereunto by him lawfully authorized.’ The 17th section re-
lates to contracts for the sale of goods for the price of £10
sterling or upwards, and enacts that no such contract shall
be allowed to be good except the buyer shall accept part of
the goods, or give something in earnest to bind the bargain
or in part payment, or “unless some memorandum or note
in writing of the said bargain be made and signed by the
parties to be charged with such contract, or their agents
thereunto lawfully authorized.”

The contracts affected by the Statute of Frauds and the
formalities required by, and the effect of the statute are treated
in the following section. It may be here remarked that, under
the statute, it is not necessary that the contracts within it
should have been originally made in writing and signed ; but
it is sufficient, in general, that written evidence of the con-
tract be produced, in order to maintain an action upon it.
Hence, if the parties have signed a certain writing as their
contract, that writing alone becomes the contract by virtue
of their agreement, and it will also satisfy the requirements
of the statute in the matter of evidence. Where no such
written agreement has been made by the parties, the party
seeking to establish the contract must resort to writings,
such as letters and memoranda, which will enable him to
satisfy the requirements of the statute.

By the 9 Geo. IV. c. 14 (Lord Tenterden’s Act), s. 1, it is
required that a promise to pay a debt barred by the Statute
of Limitations should be made in some writing to be signed
by the party chargeable thereby (a). By the same Act, s. 5,
it is required that a promise made after full age to pay any

(a) See post, Chap. IV, Sect. XJ, ‘ Limitations.”
SECT. IV. CONTRACTS IN WRITING. 101

debt contracted during infancy should be made by some
writing, signed by the party to be charged therewith (a).

Contracts
contained.
in several
written do-
cuments.

Several separate documents may together constitute a
written agreement, if a sufficient connection between them
appears by internal reference. Thus, a policy of insurance,
referring to printed proposals of the terms on which policies
are offered, includes the printed proposals as part of the
policy (6). Separate documents forming parts of an agree-
ment, but requiring extrinsic evidence to connect them, will
not constitute a written agreement; because the agreement
is not completely contained in the written documents alone,
but partly in the extrinsic evidence which is necessary to
connect them (c).

The written memorandum of agreement required to sa-
tisfy the Statute of Frauds may be contained in several do-
cuments, provided they are sufficiently connected together
by internal reference (d). But several written documents,
requiring parol evidence to supply the connection between
them in order to make out the contract, are not sufficient to
satisfy the statute (¢).

An agreement of which the terms appear partly in writing Contracts
and parily from parol evidence is not a written agreement, La gs e
and is not subject to any of the peculiar incidents of written wring and
agreements ; all the circumstances of an agreement so made Seni ne
may be taken into consideration in order to determine the ¢™°
matter of it, and even to modify the part which is in writ-
ing (f).

At a sale by auction the auctioneer having signed the
printed catalogue containing the conditions of sale as the

Warner v. Willington, 3 Drew. 523;

(a) See post, Chap. II, Sect. I,
“ Infancy.”

(6) Worsley v. Wood, 6 T. R. 710;
Routledge vy. Burrell, 1H. Bl. 254.

(c) See Brodie v. St. Paul, 1 Ves.
Jun. 326; Chapman v. Calis, 9C.
B. N. 8. 769; 30L. J.C. P. 241;
Peek v. North Staffordshire Ry. Co.,
1E.B. & £. 958; 29 L. J. Q. B.97

(d) Allen v. Bennet, 3 Taunt. 169 ;
Dobell vy. Hutchinson, 3 A. & H. 355 ;

25 L. J. OC. 662; Itdgway v. Wharton,
6H. L. C. 238; 27 L. J. C. 46.

(e) Boydell y. Drummond, 11 East,
142 ; Kenworthy v. Schofield, 2B. &
C. 945; and see post, Chap. I, Sect.
V, “Statute of Frauds.”

(f) Lockett v. Nicklin, 2 Ex. 93;
Stones v. Dowler, 29 L. J. Ex. 122;
Moore v. Garwood, 4 Ex. 681.
Rules of
law affect -
ing written
contracts.

102 CHAP. I, FORMATION OF CONTRACTS.

agent of both the parties, it was held that that document
contained the terms of the contract, and that those terms
could not be varied by evidence of verbal alterations in the
conditions of sale made by the auctioneer at the time of the
sale (a); but where a lot was knocked down to a bidder
without any written contract, a statement of the auctioneer
varying the description in the printed catalogue, was held
admissible to show that the article sold was that described
by him, although it did not correspond with the description
in the catalogue ().

The defendant ordered goods of the plaintiff by letter not
mentioning any time for payment, the plaintiff sent the goods,
and in an action for the price gave the letter in evidence as
proving a contract which imported payment on delivery ; it
was held that the defendant might show by parol evidence
that the order was given upon the terms of six months
credit, which had been agreed upon previously to writing
the letter (c).

A parol agreement was made between the plaintiff and the
defendants, a railway company, for the carriage and delivery
of goods at a eertain place beyond their line, and a consign-
ment note was signed by the plaintiff in which it was ex-
pressed that the goods were to be sent to the terminus on
the defendants’ line; it was held that parol evidence was
admissible to prove the entire contract, because it was not
intended that the note should contain exclusively the con-
tract (d).

But where a written proposal signed by the defendant was
adopted in terms by the plaintiff, though not in writing, it
was held that evidence of what passed at the time of making
the proposal was not admissible for the purpose of varying
the construction of the writing (e).

Ifa contract is in fact reduced into writing, whether it is
required to be made in that form by a statute or not, and

(a) Sheltony. Livius,20.&J. 411; Western Ry. Co., L. Rep.1C. LP. 336;
and see Powell v. Hdmunds, 12 East,6. 35 L. J.C. P. 166.

(6) Eden vy. Bluke, 13 M. & W.614. (e) Hotson vy. Browne, 9 C.B.N.S.

(ec) Lockett vy. Nicklin, 2 Ex. 98; 442; 30 L. J. C. P. 106. In such
and see Ford v. Yates, 2M.&G.549, case there is wu sufficient note of the
cited post, p. 104. agreement to satisfy the Statute of

(d) Malpas y. London and South- Frauds; sce post, p. 150.
SECT. IV. CONTRACTS IN WRITING. 103

whether it is a contract under seal or a simple contract, it
becomes subject to the particular rules of law applicable to
written instruments; but the fact of the contract being in
writing does not otherwise affect the contract, or modify the
rules of law to which it is subject.

It is a general rule of law respecting contracts in writing
that the writing agreed upon by the parties as containing the
terms of their contract becomes the only admissible evidence
of the contract; such contracts cannot be varied by ex-
trinsic evidence (a). The reason of this rule is, that it
would be contrary to the agreement of the parties to admit
any other evidence of the contract than the writing agreed
upon by them as containing it. If the parties have drawn
up a writing without intending that it should constitute an
agreement between them, or without intending that it should
contain the whole agreement between them, the reason of
the rule, and therefore the rule itself, does not apply to such
writing (0).

The terms and incidents which are impliedly contained in
the terms of a written contract, though not expressly written
in the contract, are equally within this rule with the expressly
written terms of the contract, and cannot be contradicted or
qualified by external evidence (c).

The same rule is applicable to written contracts in
equity (d).

The following are some examples of the application of the
above rule :—A sale of goods being made by written con-
tract, containing a description of the goods to be delivered
without any reference to sample, evidence that a sample was
exhibited at the time of sale is not admissible, either to
show that the seller was entitled to deliver goods answering

(a) Countess of Rutland’s case, 5
Rep. 26 a; Meres v. Ansell, 3 Wils.
275; Trueman vy. Loder, 11 A. & E.
589, 597; Canham v. Barry, 15 C.
B. 597; 24.3. C. P. 100; Robinson
v. Great Western Ry. Co. 35 L. J. 0.
P. 128.

(b) Allen v. Pink, 4M. & W. 140 ;
Harris vy. Rickett, 4 H. & N.1; 29
L. J. Ex. 197; Rogers v. Hadley, 2

H. & ©. 227; 32 L. J. Ex. 241; Lend-
ley v. Lacey, 17 C. B. N. 8. 578; 34
L.J. 0. P.7.

(c) Per Blackburn, J., Burges v.
Wickhan, 33 L. J. Q. B. 17, 28;
Fawkes v. Lamb, 31 L. J. Q. B. 98.

(d) Davis v. Symonds, 1 Cox, 402 ;
Clowes v. Higginson, 1 V. & B. 524,
526; Martin v. Pycroft, 2 De G. M.
& G. 785; 22 L. J.C. 94.

Contract in
writing
cannot be
varied by
extrinsic
evidence.
Contract
in writing
connot be
varied by
extrinsic
evidence,

104 CHAP. I, FORMATION OF CONTRACTS.

the sample but not answering the description (w), or to show
that the purchaser was entitled to refuse goods delivered
answering the description but not answering the sample ().
Upon a sale of potatoes the written contract described them
as “ Ware potatoes ;” evidence was not admitted to show that
the purchaser in fact contracted for the best quality of Ware
potatoes (c). So, upon asale of flour the written contract de-
scribed it as “ Whites X. 8. ;’”’ evidence was not admitted to
show that the purchaser had stipulated for flour of the same
quality as had been delivered to a third person(d). If a writ-
ten contract for the sale of goods specifies no time for deliver-
ing them, it is not competent for the seller to give parol evi-
dence that it was agreed as a condition of the sale that the
goods should be taken away immediately (e). A written con-
tract was made for the sale of goods, mentioning the goods
and the price but fixing no time for payment or delivery,
and therefore by construction of law importing a sale for
ready money; it was held that evidence was not admissible
to show that by the usual course of dealing between the par-
ties the goods were sold on credit of six months (/). Upon
a sale by auction of the timber growing in a certain close
a written contract was made in accordance with the con-
ditions of sale, which did not state anything respecting the
quantity of the timber; evidence was held inadmissible to
show that the auctioneer at the time of the sale warranted
acertain quantity (y). A written agreement having been
made purporting to create a present partnership between
an attorney and a person not then properly qualified to act
as an attorney, which consequently was illegal and void,
parol evidence was held inadmissible to show that the agree-
ment was not intended to take effect until the latter party
should be duly admitted (i).

A lease for a term to commence at Michaelmas, made
since the Act of Parliament for altering the style, means
New Michaelmas, and extrinsic evidence is not admissible

(a) Tye v. Fynmore, 3 Camp. 462. (e) Greaves vy. Ashlin, 8 Camp.

(b) Meyer v. Bverth, 4 Camp, 22. 426.

(c) Smith v. Jeffryes, 15 M. & W. (f) Ford v. Yates, 2M. & G@. 549.
561 (g) Powell vy. Edmunds, 12 East, 6.

(d) LTarnor vy. Groves, 16 C.B. 667. (2) Williamsy. Jones, 5 B.& C.108.
105

to show that Old Michaelmas was intended (a); but under a
demise not in writing commencing from Lady Day it was
held to be matter of evidence that the parties meant Old
Lady Day (b). If a written demise makes no mention of
ground-rent or land-tax, evidence is not admissible to show
that it was orally agreed that the tenant should pay it (c).

The contracts of the parties appearing upon bills of ex-
change or promissory notes cannot be varied by external
evidence. In an action on a promissory note or bill of ex-
change the defendant cannot give in evidence, that he put
his name to the note under a parol agreement with the
plaintiff that it should be renewed, and payment should not
be demanded when it became due (/). In an action against
the indorser of a promissory note, evidence that by a parol
agreement, made at the time of indorsing, he had waived his
right to notice of dishonour was held inadmissible (e). So,
a parol agreement, that’a promissory note purporting to be
payable on demand should not be payable until the death of
the maker, was held not admissible to contradict the written
tenor of the note (f). In an action by the drawer against
the acceptor of a bill of exchange payable at a certain date,
the defendant cannot give evidence of a parol agreement
that it was not to be payable except in a certain event (1).

But a written agreement referring to a bill or note and
made contemporaneously with it may, in effect, amalgamate
the two instruments in one agreement, as between the par-
ties to the agreement, and so qualify their rights as ap-
pearing on the bill or note taken by itself (1); but such
agreement will not affect the rights of indorsees taking the

SECT. IV. CONTRACTS JN WRITING.

(a) Doe d. Spicer vy. Lea, 11 Kast,
312; and see Szth v. Walton, 8 Bing.
235.

(6) Doe d. Halli vy. Benson, 4 B. &
Ald. 588; Doe d. Peters v. Hopkin-
son, 3D. & R. 507.

(c) Preston v. Merceau 2 W. Bl.
1249; Rich v. Jackson, 6 Ves. 334,
n (87).

(d) Hoare v. Graham, 3 Camp. 57.

(e) Free v. Hawkins, 8 Taunt. 92.

Cf) Woodbridge vy. Spooner, 3 B.&
Ald. 233; and see Moseley v. Han-

ford, 10 B. & C. 729.

(g) Adams v. Wordley, 1 M. & W.
874; and see Brill v. Crick, 1 M.
& W. 232; Capner v. Mincher, 13
M. & W. 704; Rawson v. Walker,
1 Stark. 361; Foster v. Jolly, 1 C. M.
& R. 703.

(h) See ante, p.101; Bowerbank vy.
Monteiro, 4 Taunt. 814; and see
Webb v. Spicer, 13 Q. B. 886; Leeds
vy. Lancashire, 2 Camp. 205; Brown
v. Langley, 4 M. & G. 466,

Contract
in writing
cannot be
varied by
extrinsic
evidence.
106 CHAP. I. FORMATION OF CONTRACTS.

bill or note without notice and without being affected with
the equities of the previous parties.

The consideration for a bill of exchange or promissory
note need not appear expressly on the face of the imstru-
ment, but may be proved, if required, by extrinsic evi-
dence (a) ; and it may also be proved by extrinsic evidence
that the instrument was given without consideration, or that
the consideration for which it was given has failed. If, how-
ever, a consideration is expressed on the face of the instru-
ment, evidence cannot be given in variance of such expressed
consideration, though it may be shown to have failed (0).

For what Extrinsic evidence is admissible for many purposes con-

Miieee nected with a written contract, without infringing the ge-

ore neral rule that it is inadmissible to vary the writing.

acess Extrinsic evidence is necessarily admissible to prove that

making the the written document has been agreed to by the parties as

agreement. containing the contract (c). In the case of a deed this
is proved exclusively by means of the sealing and de-
livery (d). In the case of simple contracts it is commonly
proved by the signatures of the parties appended for that
purpose; and in contracts relating to some matters signa-
ture is required by statute. Proof of the signature of
the party is presumptive proof of his consent to the terms
of the document signed. This presumption may, however,
be rebutted by showing, that the writing was signed only
conditionally, and was not to be treated as binding until
fulfilment of the condition; or that it was signed for
some other purpose than becoming bound by it; or that it
was not intended to contain the complete agreement of the
parties (e).

The signature of the parties is not essential to constitute
awritten agreement unless required by some statute ; if the
terms of an agreement are put into writing and the writing
is accepted by the parties as their agreement, though their
assent is not evidenced by signature, nevertheless the agree-

(a) See post, Chap. III, Sect. I, (c) See per Bramwell, B., Wake v.
“ Consideration.” Harrop, 6 Tl. & N, 768, 774; 301. J.
(b) Ridout v. Bristow, 1 0. & J. Vx. 273, 277.
231; Abbolty. Hendricks, 1M. & G. (d) See ante, p. 76.

791, Byles on Bills, 8th ed. 77, 90. (e) See post, p. 107, 109.
SECT. IV. CONTRACTS IN WRITING. 107

ment is a written agreement, and is subject to the rules of
evidence affecting written agreements (a).

The execution or signature by the parties of a written
instrument is sometimes attested by a witness, who signs an
attestation appended to the instrument for that purpose.
This mode of attestation is in some cases required by law;
where not so required, it may be adopted at the will of
the parties. It was formerly a general rule of law that in
order to prove an instrument so attested the attesting wit-
ness must be called, if possible, to prove the execution (0);
but by the C. L. P. Act, 1854, s. 26, ib has been enacted
that “It shall not be necessary to prove by the attesting
witness any instrument to the validity of which attestation
is not requisite; and such instrument may be proved by
admission, or otherwise, as if there had been no attesting
witness thereto.”

Extrinsic evidence is also admissible to show when the
agreement was made; and such evidence is admissible al-
though the written agreement itself contains a date. Thus,
where a deed of charterparty purported on the face of it to
have been executed on a certain date, it was held that the
parties might aver and prove that it was in fact executed on
a different date («).

Where the parties sign a written document purporting in
its terms to be a contract between them, but do so for some
purpose other than that of being bound by the written docu-
ment as a contract, parol evidence is admissible to show the
purpose for which they signed the document, in order to
avoid the inference that they are bound by it; as, where a
contract was made for the sale of certain goods at a price to
be subsequently ascertained in a certain manner, and for
some collateral purpose a written contract was drawn up
and signed in which a nominal price was inserted, but it
was agreed at the time that it was not to be binding, it was
held that evidence might be given to show that the written

(a) Hotson v. Browne,9C.B.N. Doe v. Durnford, 2 M. & 8. 62, 64;
8. 442; 80 L. J. C. P. 106; see Reuss Whyman v. Garth, 8 Ex. 808.
vy. Picksley, L. R. 1 Ex. 342; post, (c) Hall v. Cazenove, 4 East, 477 ;
p. 150. and see ante, p. 78.

(6) Call v. Dunning, 4 Bast, 58 ;

Attesta-
tion.

Extrinsic

evidence to

show that
written do-
cument was
signed
without in-
tention of
making a
contract.
Extrinsic
evidence
admissible
to prove
mistake,
fraud, and
duress.

Extrinsic
evidence
admissible

108 CHAP. I. FORMATION OF CONTRACTS.

document was not intended to contain the real contract be-
tween the parties (a). The plaintiff bought a horse of the
defendant with a verbal warranty and paid for it, and the
defendant then gave the plaintiff a written memorandum
as follows :—“ Bought of (the defendant) a horse for
the sum of £ ,’ which was signed by the defendant ; it
was held that the paper having been meant merely as a me-
morandum of the transaction or an informal receipt for the
money, and not as containing the terms of the contract it-
self, parol evidence might be given of the warranty, although
not mentioned in the memorandum (8).

Extrinsic evidence is admissible to show that a written
document was not intended to contain the whole agree-
ment of the parties (c). By a written memorandum an agree-
ment was made to assign certain specified property as se-
curity for a loan, but no mention was made of a bill of sale of
all the borrower’s property, which it was in fact agreed orally
at the time should form part of the security ; it was held that
evidence might be given to show that the bill of sale was
given as security for the loan although the written agree-
ment was silent respecting it, because the written agreement
was not intended to contain the whole agreement of the
parties (d).

 

 

Evidence is admissible to prove that an agreement entered
into in fact between the parties was induced by the fraud or
duress of one of the parties committed upon the other, or, in
some cases, that it was induced by a common mistake of both
parties ; the effect of such circumstances being to vitiate the
agreement and render it void or voidable in law. The rules
of law affecting agreements made under the influence of
mistake, fraud, or duress are treated separately in a fol-
lowing section (e).

A written agreement not under seal may be signed or
agreed to conditionally, in analogy with the delivery of a

_ (a) Rogers v. Hadley, 2. & C. 28 L. J. Ex. 197; and sce Lindley
227; 32 L. J. Ex, 241. Lacey, 34 L. 5. C. P. 7.

(b) Allen vy. Pink, 4M. & W. 140. (d) Harris vy. Richett, supra.

(ec) Harris vy. Rickett, 4 WI. & N.1; (e) Chap. I, Sect. VI, posé, p. 168.
SECT. IV. CONTRACTS IN WRITING. 109

deed as an escrow (a) ; and extrinsic evidence is admissible to prove

. : that written
to show that a written document, purporting to be a bind- aoreement
ing agreement, was signed or agreed to upon the express was signed

terms that it should not operate as a present contract, but a
should become so only upon the happening or fulfilment of
some condition (8).

An agreement in writing for a tenancy at a certain rent
for sines years, not saying from what time, was signed by
both landlord and tenant, but it was agreed verbally at the
time of signing that the rent was not to commence until
certaim repairs were completed; it was held that the parol
agreement was admissible in evidence to show that the
written agreement was not intended to operate until the re-
pairs were completed, and that, the repairs not having been
completed, no rent was due under it (c). The defendant
signed a written agreement for the absolute purchase of a
share of a patent for an invention ; it was held that evidence
was admissible to show that he signed the agreement upon
the condition that a third party should approve of the in-
vention, and that upon the disapproval of that party there
was no binding contract (d). A written agreement was made
by which the defendant agreed to transfer a farm to the plain-
tiff upon certain specified terms, and at the same time an
oral agreement was made that the written agreement was to
be void if the landlord did not consent to the transfer ; it was
held that evidence of the oral agreement was admissible to
show that the written agreement was conditional upon the
landlord’s consent, and that upon the refusal of his consent
the agreement was inoperative (e).

If a party to a contract signs a written document contain-
ing the terms, but on the condition that he is not to be bound
by it until it is signed by the other party, there is no binding
contract until the other party has signed (/') ; so, where several
creditors of a debtor agree to sign a composition deed upon

(a) See ante, p. 78. 370; 25 L. J. Q. B. 277.

(b) See the cases cited in the fol- (e) Wallis v. Littell, 11 C. B.N.S.
lowing notes. 369; 31 L. J. C. P. 100.

(e) Davis y. Jones, 17 C. B. 625 ; (f) Moore v. Campbell, 10 Ex. 323;
25 L. J.C. P. 91. Furness v. Meek, 27 L. J. Ex. 34.

(d) Pym y. Campbell, 6 ¥. & B.
Extrinsic
evidence
admissible
to show
that con-
tract is
made sub-
ject to
usage.

of trade.

110 CHAP. I. FORMATION OF CONTRACTS.

the understanding that they are all to sign it, the signature
of one is conditional upon those of the rest and is not bind-
ing until all have signed (4). A charterparty was signed
by the shipowner and returned to the broker in a letter
which contained an express stipulation that the counterpart
with the merchant’s signature should be sent to him; it was
held that the latter was admissible and sufficient to show
that the contract was conditional upon the counterpart being
sent (6).

Upon the same principle a preliminary agreement, made
respecting the terms upon which a written agreement is to
be signed, may be separately proved and enforced, although
not referred to in the written agreement (c).

Extrinsic evidence is admissible to show that the parties
to a written agreement have contracted upon a common basis
of usage or custom, peculiar to the trade, or business, or
place, with which their contract is connected; so that they
have impliedly consented to be bound by certain usual or
customary terms and conditions not mentioned in their agree-
ment, or have accepted certain terms and phrases used in
their agreement with a special meaning (d).

“Tn contracts, as to the subject matter of which a known
usage prevails, parties are found to proceed with the tacit
assumption of these usages; they commonly reduce into
writing the special particulars of their agreement, but omit
to specify these known usages which are included, however,
as of course by mutual understanding ; evidence therefore
of such usages is receivable. The contract in truth is
partly express and in writing, partly implied or understood
and unwritten” (e).

Terms founded on usage or custom can be introduced

(a) See Reay y. Richardson, 2 C.
M. & R. 422; Boyd v. Hind, 1 HW. &
N. 938; 25 L. J. Ex. 246; 26 ib.
164.

(6) Furness vy. Meek, 27 L. J. Ex.
34.
(ce) Lindley v. Lacey, 17C. B. N.S.
578; 34L.J3.C. P. 7; and sce J/ar-
ris vy. Rickelt, 4 U.& N.1; 28 L. J.
Tx. 197.

(d) Hutton vy. Warren, 1 M. & W.
466, 475; Truman v. Loder, 11 A. &
HE. 589, 598; Spartali v. Benecke, 10
C. B. 212, 222; Humfrey v. Dale,
7E.& B. 266; 26 L. J. Q. B. 137;
27 ib. 350; Field v. Lelean,6 H. & N.
617; 30 L. J. Ex. 168.

(ce) Brown v. Byrne, 3K. & B. 708,
715; 23 L. J. Q. B. 313, 316.
.

SECT. IV. CONTRACTS IN WRITING. 111

into a written contract in the above manner only so far as
they are consistent with the written terms. If the usage
or custom proposed to be proved is repugnant to or incon-
sistent with the written contract, the writing, as expressing
the intention of the parties, must prevail to the exclusion of
the usage or custom, and the evidence is not admissible.
‘Merely that it varies the apparent contract is not enough
to exclude the evidence, for it is impossible to add any ma-
terial incident to the written terms of a contract without al-
tering its effect more or less («).”’

There seems to be no distinction in this respect between
contracts made by deed under seal and contracts made by
simple agreement in writing. Evidence of this kind has
been admitted where the contract was under seal (0).

Whether a written contract in its terms admits the
annexation of incidents by the extrinsic evidence of usage,
or 1s inconsistent with and exclusive of such incidents, is a
question of the construction of the terms of the written
contract ; if 1s a question for the Court to decide and must
not be submitted to the jury. The province of the jury is
restricted to finding the fact of the written agreement and
the fact of the usayve (c). It seems also that the circum-
stances under which the agreement is made, with reference to
the usage, are matters of fact to be found by the jury ; for,
if the agreement is not made in the ordinary course of
trade or business in which the usage prevails, the usage does
not attach to the agreement (d).

The intention of the parties to exclude the usage of trade
from a written agreement, made in the course of that trade,
must appear in the terms of the writing, and cannot be
shown by extrinsic evidence. Upon a contract made in
writing for the sale of rum, which contained no mention of
warehouse rent, it was held that evidence was admissible to
show that by custom of the trade a certain allowance for

(a) Browny. Byrne, 3 BE. & B. 703, (ce) Parker v. Ibbetson, 4 C. B.N.
715; 23 L. J. Q. B. 313, 316; Hum- 8. 346; and see Hutchisonv. Bowker,
Srey v. Dale, 7 E. & B. 266, 274; 26 5 M. & W. 535.

L. J. Q. B. 137, 140. (d) See per Pollock, C.B., Adlan v.

(6) Smith v. Wilson, 3 B. & Ad. Sundius, 1 H. & C. 128, 132; 31 L.
728; Myers v. Sarl, 3H. & B. 306; J. Ex. 307, 318; per Byles, J., Parker
30 L. J. Q. B. 9. v. Ibbetson, 4 C. B. N.S. 346, 356.
Evidence of

usage ad-
mitted to
annex inci-
dents to
contracts,

1]2 CHAP. I. FORMATION OF CONTRACTS.

warehouse rent was incorporated in all such contracts, but
that evidence was not admissible to show that, though the
contract was silent as to any allowance of rent, the parties
had by word of mouth agreed to make an allowance dif-
ferent from the customary allowance («).

In an action upon a contract of sale of tobacco, evidence
was held admissible to show that in the tobacco trade it
was an established usage that all sales were made by sam-
ple, though not expressed to be so in the bought and
sold notes (b) ; so on the sale of West India rum, that one
month’s warehouse rent was allowed by usage of the
trade (c). On a contract of sale of goods made bya broker
in the City of London and contained in the broker’s notes,
which specified that the goods were to be paid for by bill,
evidence was admitted to show that by the usage of trade
in the City the vendor under such contract, if not satisfied
with the credit of the purchaser, might rescind the contract
within a reasonable time ; but evidence was not admitted to
show that by the term ‘‘ bill” in the bought and sold notes
was meant “approved bill,” that is to say, a bill which the
vendor might approve or not at his pleasure (d).

A written contract for the sale of certain goods at a cer-
tain price contained the stipulation “ to be paid for by cash
in one month less 5 p. c. discount,’ and made no express
mention.of the time for delivery; it was held that upon the
true construction of the contract there was a present sale of
the goods witha deferred day of payment, and that the pur-
chaser was entitled to call for the delivery of the goods at
any reasonable time within the month without tendering
the price, and, consequently, that a usage of the trade, by
which the vendors under such contracts were not bound to
deliver the goods without receiving payment, was inconsis-
tent with and excluded by the terms of the contract, and not
admissible in evidence (e). But upon a sale of mining shares
made between two brokers by bought and sold notes which,

(a) Fawkes v. Lamb, 31 L.5.Q.B. (ce) Fawkes y. Lamb, 31L.5.Q.B.
98; but see Birch v. Depeyster, 4 98.
Camp. 385. (@) Hodgson y. Davies, 2Camp. 530.
(4) Syers v. Jonas, 2 Ex, 111. (e) Spartali y. Benecke, 10 C. B.
)

a
SECT. IV. CONTRACTS IN WRITING. 113

after specifying the shares and the price, contained the stipu-
lation “for payment half in two and half in four months,”
and made no mention of the time of delivery, in an action
for not accepting the shares, it was held that evidence was
admissible of a usage amongst brokers in mining shares, that
upon contracts for the sale of such shares the delivery of
the shares takes place at the time appointed for payment and
cannot be demanded before (a).

In a written contract, payment primd fucie means pay-
ment in cash ; but it is open, in general, to show a usage
for a certain credit ; so also, for a certain allowance of dis-
count. ‘Thus, where a bill of lading provided in terms for
the delivery of the goods at Liverpool on payment of freight
at a certain rate per pound, evidence was admitted of a mer-
cantile custom at that port, in the trade from American
ports, to allow a deduction of three months’ discount from
the freight (0).

A charterparty expressly stated the rates of freight for
certain articles and, amongst others, specified the rate per
pound for pressed wool and also for unpressed wool; it
was held that parol evidence was not admissible to show
that by the custom of the place of loading the cost of press-
ing wool was to be borne by the shipowner (c). A charter-
party contained the stipulation “the ship to be consigned
to the charterer’s agents in China free of commission on
that charter ;” it was held that evidence was not admissible
to show that by-mercantile usage under such charters the
charterers’ agents became entitled to procure the charter
for the return voyage, or to be paid their commission if a
charter was not obtained by them (d). <A ship-broker
having introduced to another broker a ship for charter
upon the terms, set out ina written agreement, that the
commission upon obtaining the charter for the ship was to
be divided between them, it was held that evidence was

extends to rew ports, as they are

(a) Field v. Lelean, in Ix. Ch. 6
Falkner vy. Earle, 3 B. & 8.

H. &N. 617; 30 L. J. Ex. 168; and
see Spartali v. Benecke, supra ; Godts
vy. Rose, 17 C. B. 229; 25 L. J.C.
P. 61.

(6) Brown v. Byrne, 3 BE. & BE. 708 ;
23 L. J. Q. B. 313. This custom

opened.
360; 82 L. J. Q. B. 124.

(ce) Cockburn v. Alexander, 6 C. B.
791.

(d) Phillips v. Briard, 1 H. & N,
21; 25 L. J. Ex. 233.

I
Evidence
of usage to
annex inci-
dents to
contracts.

114 CHAP. I. FORMATION OF CONTRACTS.

admissible of a custom among ship-brokers that such an
agreement extended to renewals of the charter after the ex-
piration of the first charter (a).

Upon a policy of insurance on goods on board a vessel, in
general terms, evidence is admissible of usage that the
policy does not apply to goods stowed on deck, or in an un-
usual-manner (2). But in a policy of insurance upon “ ship,
boats, and other furniture,’ evidence was not admitted to
show that by usage of underwriters boats slung on the out-
side of the ship were not included in the policy (c). Upon
a policy of insurance upon ship and goods which expressed
“that the insurance on the said ship shall continue until
she is moored twenty-four hours, and on the goods until
safely landed ;”’ it was held that evidence was not admis-
sible of a usage that the insurance on the goods, as well as
on the ship, continued only until twenty-four hours after
mooring (d).

The engagement of a domestic servant is subject to the
well-known custom, presumptively included in the contract,
that the servant may be dismissed after a month’s warn-
ing, or upon payment of a month’s wages (e). So, in en-
gagements of service in particular trades and businesses,
a custom in the trade or business to determine the contract
by notice is impliedly incorporated into the contract, unless
the express terms of the contract are so inconsistent with
the custom as to exclude it (7); so, a custom in a particular
trade that upon a yearly hiring certain holidays should be
allowed (g). An agreement was entered into in writing for
the engagement of an agent in a mercantile business at a
salary of £150 a year, containing a proviso that if at the
end of the year the employer was satisfied with the amount
of business done he would make an addition of £30 to the

(a) Allan v. Sundius, 1 H. & C. (a) Parkinson v. Collier, Park on
123; 31 L. J. Ex. 307. Marine Ins., 7th ed., 470.

(b) Ross v. Thwaite; Backhouse v. (e) Nowlan v. Ablett, 2 C. M. &
Ripley, 1 Park on Marine Ins., 7th RB. 54.
ed., 26. (f) Parker v. Ibbetson, 4 C. BLN.

(c) Blackett v. Royal Exchange 8. 346; 27 L. J.C. P. 2386; and sce
Assurance Co., 2 Tyrwh. 266; 2 C. Johnson vy. Blenkinsopp, 5 Jur. 870.
& J. 244; and see per Cockburn, C. (g) R.v. Stoke-upon- Trent, 5 Q.B.
J., Myers v. Sarl, 8 KE. & E. 306, 308.
317; 30L.J.Q. B. 9, 13.
SECT. IV. CONTRACTS IN WRITING. 115

stipulated salary ; it was held that this proviso did not ex- Evidence
clude the application of a custom in the trade to determine of uss? '?
a yearly hiring by a month’s notice at any time (a). Upon dents to
an engagement in writing of an actor to perform at a theatre ee
at a weekly salary for three years, evidence was admitted

that by the usage of the theatrical profession the salary was

to be paid only during the time the theatre was open for
performance (b).

Upon the same principle, leases of land and agreements
between landlord and tenant in particular localities are
impliedly subject to the customs of the country there
prevailing respecting the tenancy and cultivation of the
land (c). Thus, an outgoing tenant may be entitled by the
custom of the country to the way-going crop, that is to say,
the crop sown during the tenancy and left standing and
growing at the expiration of the tenancy, although the lease
or agreement is silent respecting such right (d) ; or an out-
going tenant, on quitting possession, may be entitled by the
custom of the country to be paid by the landlord, or incom-
ing tenant, a reasonable allowance for the cultivation of the
land during the last year of the tenancy (e). But the cus-
toms of the country as to cultivation and tenancies of land
cannot be annexed to leases and agreements between land-
lord and tenant, if the terms of the lease or agreement are
so Inconsistent with the custom as to show that the parties
intended to exclude the custom (f). Where the lease makes
express provision for the way-going crop, the outgoing
tenant does not become entitled to it under the custom of
the country (g). Where the lease specified the payments to
be made to the outgoing tenant at the time of quitting,
amongst which an allowance for foldage was not included,
it was held that he was not entitled to such allowance by
the custom of the country, because the terms of the lease

(a) Parker v. Ibbetson, 4C. B.N. (d) Wigglesworth v. Dallison, Doug.
8. 346; 27 L. J. C. P. 236. 201; 1 Smith’s L. C. 5th ed. 520.
(b) Granty. Maddor,15M.&W.737. (e) Hutton y. Warren, 1 M. & W.
(ce) Wigglesworth v. Dallison, 1 466.
Smith, L. C. 5th ed. 520, and notes; (f) Webbv. Plummer, 2B, & Ald.

Hutton v. Warren, 1 M. & W. 466; 746; Clarke v. Roystone, 13M. &W.
Muncey v. Dennis, 1 H. & N. 216; 752.
26 L. J. Ex. 66; Holding v. Pigott, (g) See Boraston v. Green, 16 East,
7 Bing. 465. 71.

12
116 CHAP. I. FORMATION OF CONTRACTS.

Evidence were inconsistent with and excluded the custom (a). So,
ae where by the written terms of the tenancy it was stated that
ee. a certain amount of manure had been placed upon the land,
“and the tenant agreed to leave the land when given up by
him in the same state as when taken, or allow a valuation to
be made, it was held that the tenant could not be charged
with the manure left to him on the land according to the
custom of the country, because the express terms of the
agreement were inconsistent with the custom (b). Where
by the custom of the country the outgoing tenant was bound
to leave the manure on the land and was entitled to be paid
for it by the landlord or incoming tenant, and by the terms
of a lease it was expressly provided that the tenant on quit-
ting should leave the manure on the land, but no provision
was made for payment, it was held that the custom was
excluded, and that the tenant was not entitled to payment

for the manure left (c).

Upon this principle, upon Bills of Exchange and Promis-
sory Notes, which expressly fix certain days for payment,
additional ‘“ days of grace ”’ are allowed for payment by the
usance of many localities; and evidence is admissible to
show the usance at the place of payment. In England the
law merchant respecting bills and notes is judicially noticed,
and the usance of three days admitted, without proof; but
foreign usances must be proved (dl).

Extrinsic Upon the same principle, if in a particular trade, or busi-

aes ness, or place, certain words and phrases have acquired by
3 . . ora .

plain the usage a peculiar meaning different from the ordinary mean-

eee : ing, and a written contract is made with reference to such
phrases. trade, business, or place, extrinsic evidence is admissible to
show the peculiar meaning of the words used in the con-
tract. “ Mercantile contracts are very commonly framed in
a language peculiar to merchants; the intention of the
parties, though perfectly well known to themselves, would

often be defeated if this language were strictly construed

(a) Webb v. Plummer, 2 B. & Ald. (c) Roberts v. Barker.1 C. & M. 808.

46. (d) See a list of forvign usances in

‘ (2) Clarke v. Roystone, 13 M.& W. Chitty on Bills of Exchange, 10t1 ed.
52, 255.
117

according to its ordinary import in the world at large ; evi-
dence therefore of mercantile custom and usage is admitted
in order to expound it and arrive at its true meaning.”—
“Neither in the construction of a contract among mer-
chants, tradesmen, or others, will the evidence of usage be
excluded because the words are in their ordinary meaning
unambiguous ; for the principle of admission is that words
perfectly unambiguous in their ordinary meaning are used
by the contractors in a different sense from that.”—“ In
such cases the evidence neither adds to, nor qualifies, nor
contradicts the written contract; it only ascertains it by
expounding the language” (a).

Accordingly, on a lease of a rabbit warren containing a ~
covenant by the lessee that he should leave on the warren
10,000 rabbits, evidence was admitted to show that by the
custom of the district 1000 rabbits meant 1200 (6). Ona
policy of insurance on a voyage “to any port in the Baltic,”
evidence was admitted that by mercantile usage the Gulf of
Finland was considered as within the Baltic (c). Evidence
was admitted to show the meaning of the word “ level” in
a lease of coal mines (d). Evidence is admissible to explain
the phrase in a charterparty ‘to load in regular turn” (¢) ;
and the phrase “in turn to deliver” (jf).

A contract in the words ‘sold fourteen pockets Kent
hops at 100s.” was construed, upon explanation by parol evi-
dence of usage, to mean at 100s. per cwt (gy) ; so it was held
that a contract for “mess pork of Scott & Co.” might
be explained to mean “ mess pork manufactured by Scott &
Co.” (h). A contract for palm oil contained the provision
“wet dirty and inferior oil, if any, at a fair allowance” ;
evidence was admitted of the usage of the trade to determine
what proportion of the oil might be wet dirty and inferior

SECT. IV, CONTRACTS IN WRITING.

(a) Brown v. Byrne,3 E. & B. 703,
715,716; 23 L. J. Q. B. 313, 316;
and see Mallun v. May, 13 M. & W.
511, 517; Grant v. Maddox, 15 M.
& W. 737,745 ; Myers v. Sarl, 3 KE.
& E. 306, 315, 319; 30 L. J. Q. B.

12, 14.

2 Smith vy. Wilson, 3 B & Ad.

a Uhde v. Walters, 3 Camp. 16.

(d) Clayton v. Gregson, 5 A. & E,
302.

(e) Letdemanvy. Schullz, 14 C. B.38;
23 L. J.C. P.17; Hudsonv. Clement-
son, 18C B.2138; 25 L. J.C. P. 234.

(f) Robertson v. Jackson, 2 C. B.
412.

(q) Spicer v. Cooper, 1 Q. B. 424.

(hk) Powellv. Horton, 2 Bing. N.C.
668.
Evidence
of usage to

118 CHAP. I. FORMATION OF CONTRACTS.

within the terms of the contract (a). Where the defendant

explain the Offered the plaintiff by letter to sell a certain quantity of

meaning of ¢¢

terms.

good” barley, and the plaintiff wrote accepting the offer
as for “fine” barley, evidence was admitted to show the
meaning of the terms “good” and “fine” barley in the
trade ; and as the meanings by trade usage differed, there
was no valid contract (b).

But on a contract of sale of “prime singed bacon,” evi-
dence was held inadmissible to show that by a usage of
trade bacon with an “ average taint”’ answered the descrip-
tion of “ prime singed bacon” (c). The expressions “ more

or less,” and “about,” annexed to the quantity stated in a

contract, being words of general import, it 1s said, cannot
be explained by evidence of mercantile usage (d) ; such ex-
pressions are construed to denote reasonable limits of al-
lowance according to the circumstances of the particular
case (e).

The usage of a particular trade, business, or place, may be
applied to show the meaning of the term “ month”’ as used in
a written contract. The term is taken prima facie in law
to mean lunar month, unless the context requires a different
construction ; but by evidence of usage it may be shown that
calendar month was intended (f). So, evidence of usage was
admitted to explain that “days” mentioned in a bill of
lading meant working days (g). A building contract under
seal stipulated that weekly accounts of the work done should
be delivered to the architect every Monday next ensuing
the performance of such work ; it was held that evidence
was admissible that by the usage of the building trade
“weekly accounts”? meant accounts of the day-work only,
and not of the work capable of measurement (h).

The meaning of the terms, as explained by usage, is a
question of fact for the jury ; but, the terms used being thus

(a) Lueas y. Bristow, 27 L.d.Q. 387; Cockerell v. ducompte, 2 C. B.

B. 364. N.8. 410; 26 L. J.C. P. 194; Gibbs
(b) Hutchisonv. Bowker,5M.&W.  v. Gray, 26 L. J. Ex. 286.

535; and sce Bold v. Rayner, 1 M. (f) Jolly v. Young, 1 Esp. 186;

& W, 343, Simpson v. Aargitson, 11 Q. B. 23.
(c) Yates vy. Pym, 6 Taunt. 446. (g) Cochran vy. Relberg, 3 Fsp. 121,
(d) Cross v. Hglin, 2 B. & Ad. 106. (2) Myers v. Sarl, 3 E. & EK. 306;

(e) Bourne vy. Seymour, 16C.B. 3801. 5.Q.B. 9.
SECT. IV. CONTRACTS IN WRITING. 119

ascertained, the construction of the writing in other respects
is a question for the Court (a).

Extrinsic evidence is necessarily admissible to show the Extrinsic
i : : evid
facts and circumstances under which a written contract was jamicsible

made, and is to be performed, with a view to the application ‘° show the
application
ot the con-

of the contract (8).

Extrinsic evidence is necessary to show the identity of the ae sa
persons charged with the contract with the parties named identity of
and intended in the written document (c). An identity of es
name is, in general, sufficient primd facie proof of this fact (d).

Where the writing is made inter partes, that is to say,
expressly names the parties to the agreement, the existence
of other parties is impliedly excluded, and evidence is not,
in general, admissible to make a person liable on such a
written agreement who was not described as a party to it;
for that would be contrary to the rule that extrinsic evidence
is not admissible to alter the effect of a written instru-
ment (e). Extrinsic evidence is sometimes admissible to
show that parties to a written contract were agents for
other parties, in order to give the benefit of the contract to
the principal or to charge him with the liability, such evi-
dence being consistent with the writing (f), but not to dis-
charge the party who appears on the face of the instru-
ment as personally contracting, for that would contradict the
writing (y).

Extrinsic evidence is admissible and necessary to ascer- To identify

tain and identify the matter of the contract. hy Seales
e con-

tract.

(a) Hutchison v. Bowker, 5 M. &
W. 535; and see Neilson v. Harford,
8 M. & W. 806, 823; and Parker
v. Ibbetson, 4C. B.N. 8. 346; 27
L. J.C. P. 236.

(6) Per Blackburn, J., Burges v.
Wickham, 33 L. J. Q. B. 17,28; and
see Doe v. Hiscocks, 5 M. & W. 363,
368 ; Webber v. Stanley, 16 C.B.N.S8.
698, 751; 33 L. J.C. P. 217, 220;
per Parke, B., Shore v. Wilson, 9 Cl.
& Fin 355, 556.

(c) See Whitelock v. Musgrove,
10. & M. 511; Trueman vy. Loder,
11 A. & B, 589, 594.

(d) Sewell v. Evans; Roden v. Ryde,
4 Q. B. 626; and see Hamber v.
Roberts, 7 C. B. 861; Jones v. Jones,
9M. & W. 75; Greenshields v. Craw-

ford, 9M. & W. 314.

(ce) Robinson v. Rudkins, 26 L. J.
Fx. 56; and see post, Chap. II,
Sect. I, “ Parties to Contracts.”

(f) Trueman vy. Loder, 11 A. & EF.
589.

(g) Higgins v. Senior, 8 M. &
W. 834, 844; but sec in equity,
Wakev. Harrop, 6 H.& N. 768; 30
L. J. Ex. 273; and see post, Chap.
‘JI, Sect. TIT, “Principal and Agent.”
Evidence
to identify
the matter
of the con-
tract,

120 CHAP. I. FORMATION OF CONTRACTS.

A written contract dated 24th October purported to
indemnify against a bill described as payable three months
from that date; evidence was admitted to show that there
was such a bill as described but dated 25th October, and
that that was the bill to which the indemnity was intended
to apply, notwithstanding the discrepancy in date (a). In

‘a written agreement the consideration was stated to be for

the plaintiff “to withdraw the promissory note; it was

held that the plaintiff might identify by parol evidence the
particular promissory note intended by the agreement in
order to support the consideration as stated, and to show
that he had withdrawn it (b).

In an action upon a contract for the sale of wool, the con-
tract being contained in letters in which the wool was men-
tioned merely as ‘‘ your wool,” evidence was admitted
for the purpose of identifying the wool (¢). So, under a
contract to enter ‘your employ,” extrinsic evidence was
admitted to identify the particular employment to which
the agreement referred (¢d). Extrinsic evidence of the sur-
rounding circumstances was admitted to explain the mean-
ing of a written order to an agent to apply a remittance of
money “to business purposes,” and in order to ascertain
whether it included an appropriation of a portion to the
payment of the agent’s own salary (¢).

Upon the same principle, under a written contract by a
tenant to keep the demised premises in repair, the state and
age of the premises must be inquired into in estimating the
extent of the repairs contracted to be done (f). In a policy
of insurance on a ship for a voyage, importing a warranty
of seaworthiness, parol evidence is admissible to show the
known character of the ship and voyage, in order to ascer-
tain what constitutes seaworthiness on the particular occa-
sion (g). Where a contract imports a performance, as a
delivery of goods, within a reasonable time, extrinsic evi-

(a) Way v. Hearne,13C0.B.N.8.  N.8.305; 29 L. J. O. P. 105.

292; 82 L. J.C. P. 84. (e) Smith v. Thompson, 8 C. B. 4b.
(b) Shortvede v. Check, 1 A. & B. 57. (f) Payne v. Haine, 16M. & W.
(©) Macdonald v. Longbottom, 1B. 541.

& K 977, 987; 28 L. J.Q B. 298; (g) Burges v. Wickham, 33 L. J.

29 L. J. Q. B. 256. .. BL 17; Clapham vy. Langton, 34
(d) Mumford y, Gething,7 C. Py L.J. Q. B. 46.

bro
SECT. IV. CONTRACTS IN WRITING. 121

dence of the circumstances under which the contract was Evidence
made, and in which it is to be performed, is admissible to {?{tenuly.
determine what is a reasonable time for the performance of Pe con-
the contract (a). So, a “reasonable price”? means “sucha
price as the jury shall, under all the circumstances, decide to

be reasonable” (b).

Upon a guarantee in writing in the following terms, “ In
consideration of your being in advance to L. in the sum of
£10,000 for the purchase of cotton, I hereby give you my
guarantee for that amount on their behalf,” it was held that
evidence was admissible to show that a future advance was
contemplated, so that the consideration expressed for the
guarantee was valid (c). So, upon a guarantee stating “in
consideration of your having this day advanced to” etc.,
evidence was admitted to show that the advance was not
a past one, but was made simultaneously with the making
of the guarantee, so that the consideration was valid (d).
Where a guarantee was given in the following terms, “I
hereby guarantee the payment of any sum or sums of money
due to you from” etc., it was held that the circumstances
that a guarantee for goods was then contemplated, and that
no goods had been delivered and no money was due at the
time of the guarantee, were admissible to explain that the
consideration was valid as being for future advances (e).

The above decisions upon guarantees seem very narrowly
to avoid infringing the rule against explaining a written
instrument by parol evidence. Such contracts are re-
quired to Le in writing by the Statute of Frauds; but
by the enactment of the Mercantile Law Amendment Act
1856 (19 & 20 Vict. c. 97, s. 3) they are not to be deemed
invalid by reason only that the consideration does not ap-
pear in writing or by necessary inference from a written
document. Since that enactment the question in the above
cases, as to supporting the consideration for the guarantee
by parol evidence, can no longer arise.

(a) Ellis v. Thompson, 3M. & W. (d) Goldshede vy. Swan, 1 Ex. 154.
445, (e) Bainbridge v. Wade, 16 Q. B.
(b) Acebal v. Levy, 10 Bing. 376, 89 ; and see similar guarantees, Bud-
383. cher vy. Steuart, 11 M. & W. 857;

(c) Haigh vy. Brooks, 10 A.& H. Hood v. Grace,7 H. & N, 494; 31
09. L, J. Ex. 98.
Evidence
to identify
the matter
of the con-
tract.

Latent
ambiguity.

122

CHAP. I. FORMATION OF CONTRACTS.

Upon the same principle, in conveyances and contracts
relating to real property evidence of the state of the subject
of property is admissible to show what is granted, or de-
mised, or contracted for (a) ; as the rule is sometimes stated,
“Whether parcel or not of the thing conveyed is always
matter of evidence (4). Upon a written contract for the
sale of “Mr. O.’s house,” parol evidence was held admissible
to show to what house the contract related (c). Upon an
agreement in writing for a lease, parol evidence was ad-
mitted to show that “land tax’? meant a charge equivalent
to a redeemed land tax (d).

The principle in question may be exemplified by the
admissibility of evidence to explain a will for the purpose of
applying the will to the circumstances according to the
intention of the testator. If a man devise land to his
cousin John,” and it appears that he has two cousins
named John, extrinsic evidence is admissible to show to
which of them he meant the land to go. So, if a testator
devise his “ manor of A.,” having at the time two manors of
A., extrinsic evidence is admissible to show which manor he
intended (e).

An ambiguity of the above kind, arising from the circum-
stances to which the instrument is applied and not appear-
ing in the instrument itself, is called a latent ambiguity, to
distinguish it from a patent ambiguity, which is a doubt
apparent on the face of the instrument. For example, upon
a devise “to one of the sons of J. 8.” an ambiguity mani-
festly appears on the face of the instrument as to which son
of J. S.is intended. Extrinsic evidence is not admissible to
explain a patent ambiguity, because the language of the
written instrument cannot be varied by extrinsic evidence (f).
A latent ambiguity has been described to be ‘where it is

(a) Ewart y. Cochrane, 4 Macq. (d) Murray v. Parker, 19 Beav.305.

Se. App. 117; 7 Jur. N.S. 925;
Hall vy. Inund, 1 H. & C. 676; 32
L. J. Ex. 113.

(6) Per Buller, J., Doe v. Burt, 1
T. R. 701, 704, and see -tastee v.
Nelms, 1 H. & N. 225; 26 L. J. Ex.
5; Murly v. M‘Dermot!, 8 A. & E.
138.

(ce) Ogilvie y. Foljambe, 8 Mer. 53.

(e) Per Maule, J., Smith v. Thomp-
son, 8 C. B. 44, 59; and see Jones vy.
Newman, 1 W. Bl. 60; Doe v. Allen,
12 A. & E.451; Doe v. Hiseocks, 5
M. & W. 363; Doe v. Rouse, 5 C. B.
422; Doe v. Westlake, 4B. & Ald. 57;
Fleming y. Fleming, 1 HW. & C. 242;
31 L. J. Ex. 419.

(f) See ib. and see ante, p. 103.
SECT. TV. CONTRACTS IN WRITING. 123

shown that words apply equally to two different things or
subject matters; and then evidence is admissible to show
which of them was the thing or subject matter intended” (a).

Extrinsic evidence is also admissible to show that an Extrinsic

ae i d
agreement is illegal by reason of any of those matters which earls
render an agreement void on the ground of illegality (6). Sone.

“The construction of a contract in writing, as of all written The con-
instruments, belongs to the Court alone, whose duty it is to S7yfho" of

construe all such instruments as goon as the true meaning ee
of the words in which they are couched and the surround- the Court
ing circumstances, if any, have been ascertained as facts by ir oa
the jury; and it is the duty of the jury to take the con-
struction from the Court, either absolutely, if there be no

words to be construed, as words of art or phrases used in
commerce, and no surrounding circumstances to be ascer-

tained, or conditionally, when those words or circumstances

are necessarily referred to them”? (c).

Where a written document has been lost, and secondary
evidence is given of its contents, it is the province of the
judge and not of the jury to construe the meaning of the
instrument from the evidence of its contents (d).

The question whether a written contract admits the an-
nexation of incidents by the extrinsic evidence of usages or
customs of the trade or place in reference to which it is
made, or whether it is inconsistent with and exclusive of
such incidents, is a question of the legal construction of the
written instrument, which belongs to the Court to decide
and must not be submitted toa jury. It is for the jury to
find the fact of the written agreement and the fact of the
usage, and it is for the Court to decide whether the usage is
annexed to and forms part of the contract. So, it is for the
Court to decide whether evidence is admissible to explain
the technical or mercantile meaning of terms and phrases
used in a written agreement, and how far a written agree-

(a) Per Alderson, B., Sinilh v. (c) Neilson v. Harford, 8M.&W.
Jeffryes, 15 M. & W. 561, 562. 806, 823.
(b) See post, Chap. III, Sect. LV, (d) Berwick vy. Horsfall, 4 C. B.

* Tllegality.” N.S. 450. 27 L. J.C. P. 198.
Contracts
within

the Statute
of Frauds,

124 CHAP. I. FORMATION OF CONTRACTS.

ment may be explained by evidence of the external circum-
stances with which it is involved (a).

Where awritten contract signed by one of the parties was
sent by him enclosed in a letter explaining the conditions on
which he had signed it, it was held that the effect of the letter,
as showing a conditional contract only, was a question for
the Court to decide upon the construction of the letter (4).

If the evidence of a contract does not consist of written
documents alone, but also of other matters of fact, it becomes
a question for the jury, and not for the judge, what was the
contract made (c).

Cuap. I. Secr. V. Toe Srarure or Fravps.—
§ 1. Contracts witHIN THE STATUTE.

Promise by Executor or Ad- Contract concerning an In-
MUNIStLACOE sacsoscerenssronedscs 125 terest in Land...... ........... 131

Promise to answer for Debt, Agreement not to be per-
Default or Miscarriage of formed within a Year ..... .. 135
AMOUNEY chi daienesdinc swngunes 126 | Contract for the Sale of Goods

Agreement in Consideration of the Value of £10......... 137
Of Marriage .oicctccsseetiese 130

Tue sections of the Statute of Frauds, 29 Car. II. c. 3, relat-
ing to contracts are the fourth and the seventeenth sections.

The fourth section enacts ‘ that no action shall be brought
whereby to charge any executor or administrator upon any
special promise to answer damages out of his own estate ;
or whereby to charge the defendant upon any special pro-
mise to answer for the debt, default or miscarriages of an-
other person ; or to charge any person upon any agreement
made upon consideration of marriage ; or upon any contract
or sale of lands, tenements or hereditaments, or any interest
in or concerning them; or upon any agreement that is not
to be performed within the space of one year from the
making thereof; unless the agreement upon which such ac-
tion shall be brought, or some memorandum or note thereof
shall be in writing, and signed by the party to be charged

(a) Parker v. Ibbetson, 4 C. B. N. (ce) Moore v. Garwood, + Ex. 681;
8. 346; Hutchison y. Bowker, 5M. and see ante, p.101; Hotsonv. Browne,
& W. 535. 9 C. BL N.S. 442; 30 L. J. C. P.

() Furness v. Meck, 27 L.J3.Ex.34. 106.
sect. Vv. § 1. CONTRACTS WITHIN THE STATUTE OF FRAUDS. 125

therewith, or some other person thercunto by him lawfully
authorized.”

The seventeenth section enacts “ that no contract for the
sale of any goods, wares and merchandises for the price of
ten pounds sterling or upwards shall be allowed to be good,
except the buyer shall accept part of the goods so sold and
actually receive the same, or give something in earnest to
bind the bargain or in part of payment, or that some note or
memorandum in writing of the said bargain be made and
signed by the parties to be charged by such contract, or
their agents thereunto lawfully authorized.”

It is proposed to consider :—§ 1. The contracts within the
meaning of these sections.—§ 2. The forms and conditions
required by these sections in order to take such contracts
out of ‘their operation.—§ 3. The effect of these sections
upon contracts coming within their operation.

Special promise by executor or administrator to auswer
damages out of his own estate.

The executor or administrator of a deceased person, ag Promise by
such, is liable to answer damages in respect of the liabilities en.
of the testator or intestate euly to the extent of the assets tr to.sn-

which come to his hands, to be administered in due course ; ee ke
but he may give a special promise to answer such damaees pe ee
out of his own estate. Such a promise is within the statute,
and, in addition to the requirements generally necessary to
render it binding as a contract, must satisfy the forms re-
quired by the statute ().

A promise by an executor or an administrator to pay a
debt of the testator or intestate out of his own estate is void,
unless made upon a sufficient consideration. A promise to
pay as executor is merely an acknowledgment of his liability
in that character, and does not bind him personally (4). For-
bearance by a creditor of the deceased’s estate to sue the
executor or administrator, as such, would form a sufficient

consideration to support a promise made by the executor or

(a) Rann v. Hughes, 7T. R. 350, Williams’ Executors, 5th ed. 1610;
(a); and see Philpot v. Briant,4 Forthv. Stanton, 1 Wms. Saund. 210;
Bing. 717; 1 Wms. Saund. 211 (2). notes to Barber vy. Fox, 2 1b. 187 b.

(b) Rannv. Hughes,7 T. R.350, (a);
126 CHAP. I. FORMATION OF CONTRACTS.

administrator, in his own right, in respect thereof (uv). A pro-
missory note given by executors in the following form :—“‘ as
executors we severally and jointly promise to pay, etc. on
demand together with lawful interest for the same,” was held
to render the executors personally liable ; because the stipu-
lation for interest imported payment at a future day, and a
corresponding forbearance as a consideration (0).

An executor or administrator cannot be sued at law for a
legacy or distributive share of the deceased’s estate, the only
remedy being in a court of equity; and a promise by the
executor and administrator to pay such legacy or share would
be void unless made upon a valid consideration (¢). For-
bearance of a suit for a legacy has been held a sufficient
consideration to render a promise by the executor to pay the
legacy, made in respect of such consideration, binding upon
him personally (d); and if the executor or administrator
admits to the legatee or person entitled that he has received
the money and holds it for the use of the latter, he may be-
come liable upon such admission to an action at law for
money received or upon an account stated (e).

Special promise to answer for the debt, default or miscar-

riages of another person.
Promise to There must be a separate liability in the other person
answer for which the promise answers for. Thus, if goods are sold by the

delenit ot plaintiff to another, who becomes debtor for the price, and
of anothee, the defendant promises to pay that debt, the promise is
within the statute (f) ; but if goods are supplied to another
upon the sole credit of the defendant and upon his sole pro-
mise to pay for them, the promise is not within the statute,

because there is no lability of another answered for (g) ; so

(a) See the cases cited in Williams’ (e) Hart vy. Minors, 2 C. & M. 700;
Executors, 5th ed. 1612; Humev. Hin-  Tophamvy. Morecraft, 8 BE. & B. 972;
ton, cited in Jones v. Ashburnham, 4 and see ante, p. 73.

East, 455, 464. (f) Matson y. Wharam,2T. R. 80;
(6) Childs v. Monins,2 B. & B. Anderson v. Hayman, 1 H. Bl. 120.
460; and see Ridout v. Bristow, 1 CO. (g) Simpson vy. Penton, 2 C. & M.
& J. 231; Serle v. Waterworth,4M. 430; Andrews v. Smith, 2 C. M.&R.
& W.9; Nelson v. Serle, ib. 795. 627; and see Wood v. Benson, 2 C.

(c) Deeks vy. Strutt, 5 T. R. 690; & J. 95; Birkmyr v. Darnell, Salk.
Jones v. Tanner, 7 B. & C. 542. 27; 1 Smith’s L. C. 5th ed. 262;

(d) Davisy. Reyner,2 Lev.3; and = Forth v. Stanton, 1 Was, Saund. 211 ;
see Decks v. Strutt,5 T. R. 690, 693. Browning y. Stallard, 5 ‘Vaunt. 450,
SECT. v. § 1. CONTRACTS WITHIN THE STATUTE OF FRAUDS, 127

also, if goods are supplied to another upon the terms of pay-
ment by a bill accepted by the defendant (a). A promise
to pay for goods supplied to an infant, not being necessaries,
is not within the statute, because the infant is not liable (8).

The plaintiff had sold goods to another who had sold them
to the defendant, but the plaintiff retained a lien upon the
goods for the original contract price, and thereupon it was
agreed between the plaintiff and the defendant that in con-
sideration of the plaintiff giving up his lien on the goods the
defendant would pay the plaintiff the price; it was held
that such contract did not constitute the undertaking of the
debt of another within the statute (c). Anagreement that in
consideration that the plaintiff would sell and deliver certain
goods to the buyer, the defendant would discount the accept-
ances of the buyer of bills drawn by the plaintiff for the
price, and protect the plaintiff from the bills when they be-
came due, was held to be within the statute (d).

The undertaking of a del credere ageut, whereby he be-
comes responsible to his employer for the solvency of the
persons with whom he deals, is not within the statute, being
a guarantee of his own conduct in making sales and accept-
ing purchasers, and not a promise to answer for the debt of
another person, though in the event 1t may become so (e).

The debt, default or miscarriage of another person in-
tended by the statute may be future or contingent, and it is
not necessary that it should have become absolute at the
time of making the promise to answer for it; thus, a pro-
mise to answer for the debt of another for goods to be sup-
plied to him in future is within the statute (/).

A promise by the defendant to give a guarantee for another
is as much within the statute as the guarantee itself (g). But
a promise to procure a guarantee for the debt of another is

(a) Taylor v. Hilary, 1C. M. & R.
741

iO Harris vy. Huntbach, 1 Bur.
373

(c) Fitzgerald v. Dressler, 7 C. B.
N. 8. 374; 29L. J. C. P. 113; and
see 1 Wms. Saund. 211 e (note).

(d) Mallett v. Bateman, 1 H. & R.
109; 33 L. J. C. P. 243; 35 7b. 40;
L. R. 1 C. P. 163.

(ce) Couturier vy. Hastie, 8 Ex. 40;
22 L. J. Ex. 97; and see per Cowen,
J., Wolff v. Koppell, 5 Hill, N. Y.
Rep. 458, cited 7b.

(f) See Thomas vy. Williams, 10
B. & C. 664; and see Green v. Cress-
well, 10 A. & B. 453, 459.

(g) See Mallett y. Bateman, 1 H.
& R..109; 35 L. J.C. P. 40; LR.
10. P. 163.
Promise to
answer for

in conside-
ration of

the debtor.

128

CHAP. I. FORMATION OF CONTRACTS.

not within the statute, though the guarantee itself would be.
A ship-owner, whose ship had been chartered, refused to let
it sail until he obtained security for the freight, whereupon
the defendant promised, in consideration of the plaintiff al-
lowing the ship to sail, to procure a third party to sign a
written guarantee for the freight for which the charterer
would be liable; it was held that the promise of the de-
fendant was not within the statute (a).

A promise made by the defendant to pay the debt of an-
debt made Other, in consideration of the latter being discharged from the
debt, is not within the statute, because there remains no
discharging separate liability of another for which the defendant pro-
mises to answer (b); as, a promise by the defendant to pay
a debt of another, who has been taken in execution for it,
on condition of his discharge, because by the discharge

from execution the original debt is extinguished (c).

So,

where a landlord, entitled to distrain his tenant’s goods
for arrears of rent, assigns his lien upon the goods to an-
other who, in consideration thereof, promises to pay the rent,
the promise is not within the statute; because the debt
for rent is suspended by the landlord’s having recourse

to his right of distress (d).

But a promise, made in con-

sideration of the landlord abandoning a distress for rent due
from his tenant, to pay the rent then due, and also to gua-
rantee future rent from the tenant for which the landlord
could not then distrain, was held to be within the statute ; be-
cause the tevant continued liable for the future rent (e).
So, where an assignment of a debt is accepted in discharge
of a debt owing from the assignor to the assignee, and the
debtor promises to pay the assignee instead of his original
creditor, the assignor, such promise is not within the sta-
tute, because the debt of the assignor to the assignee is

thereby extinguished (/).

(a) Bushell v. Beavan, 1 Bing. N.
C. 103.

(b) Seel Wms. Saund. 211 8, (/) ;
211 e.

(ce) Goodman v. Chase, 1B. & Ald.
297 ; Bird v. Gammon, 3 Bing. N.C.
§83; Butcher vy. Steuart, 11 M. &
W. 857; and see Lane v. Burghart,
1 Q. B. 933.

(d) Williams vy. Leper, 3 Burr.
1886; Edwards y. Kelly, 6 M. & 8.
204; Bampton y. Paulin, 4 Bing.
264.

(e) Thomas y. Williams, 10 B. &
C. 664.

(f) Hodgson y. Anderson, 3 B. &
C. 842; and see post, Chap. VI,
“ Assignment of Debt.”
sEct. v. § 1. CONTRACTS WITHIN THE STATUTE oF FRAUDS. 129

The statute intends only promises made to the person Promise to
to whom another is liable for the debt, default or miscar- font ie
riage for which the promise answers. A promise made to 'e Pr
a debtor to answer for the debt for which he himself is thecreditor,
liable is not within the statute (2). A promise made to a
person to indemnify him against the costs of an action which
he might become liable to pay is not within the statute (b),
The defendant assigned to the plaintiff the benefit of a con-
tract which he had made with another, and guaranteed to
the plaintiff the due performance of the contract ; the pro-
mise of the defendant was held not to be within the statute,
because the liability guaranteed by it was not owed to the
plaintiff (c).

An indemnity given to a person for becoming bail for
the appearance of another on a criminal charge is not
within the statute, because there is no debt or duty owing
from the person bailed to the person who becomes bail (d).
But an indemnity given to the surety in a bail bond in a
civil action was held to constitute a promise within the sta-
tute to answer for the default of the principal debtor ; which
decision, it seems, is to be supported, if at all, on the ground
that in civil proceedings there is a legal duty in the person
bailed towards his bail to keep him harmless by surrendering
or paying the debt (¢). The plaintiff, the bailiff of a county
court, having arrested a person for non-payment of a judg-
ment debt, released him upon the promise of the defend-
ant to pay the plaintiff the amount on a certain day or sur-
render the debtor; it was held that the promise was not
within the statute, because the debt answered for was not
owing to the promisee (/').

The terms default and miscarriayes comprehend wrongful pemutand
acts creating a liability for damages which are not breaches ee
of contract. Thus, a person having wrongfully damaged

(a) Thomas vy. Cook, 8 B. & C. 32 7b. 381.
928; Eustwood v. Kenyon, 11 A. & (e) Green v. Cresswell, 10 A. & E.
B. 438. ° 453; and see Cripps v. Hartnoll,
(6) Adams v. Dansey, 6 Bing. 506. supra; Reader v. Kingham, 13 C. B.
(c) Hargreaves v. Parsons,13M. N.S. 344, 355; 32 L. J.C. P. 108,
& W. 561. 110. .
(ad) Cripps v. Hartnoll, 2 B. & 8. (f) Reader v. Kingham, 13 C. B.
697; 478.414; 31L.3.Q.B.150; N.S. S44; 321. J.C. P. 108.

K
Considera-

tion for the -
promise not in ques

130

CHAP. I. FORMATION OF CONTRACTS.

the plaintiffs horse, a promise by the defendant to the
plaintiff to pay the damage was held to be a promise within

the statute (a).

A declaration alleged that the defendant

promised the plaintiff to pay a sum of money, in considera-
tion of the plaintiff withdrawing the record in an action of
assault brought by the plaintiff against another ; the promise,
as alleged, was held not to be within the statute, on the
ground that it did not appear that the latter person had
committed the assault or was lable for damages (0).
Contracts containing promises within the description here

tion have been excepted from the operation of the

required to statute, so far as the consideration is concerned, by the Mer-
cantile Law Amendment Act 1856 (19 & 20 Vict. c. 97) 8.3,

appear in
writing.

Agreement
made upon

considera-

which provides that such contracts,

satisfying the require-

ments of the Statute-of Frauds in other respects, shall not
be deemed invalid by reason only that the consideration for
the promise does not appear in writing (c).

Agreement made upon consideration of marriage.
Agreements consisting of mutual promises to marry are

held not to be here intended (d).

An agreement to pay

tion ofmar- money, or make a settlement, in consideration of marriage is

riage.

Represen-
tations
made to

induce mar- takes

viage.

within the statute (e).

If a person in order to induce a marriage makes a re-
presentation of facts, upon the faith of which the marriage

representation (/).

place, he is held bound in equity to make good the
The liability of the person making

such representation rests upon the ground that it would
be a fraud if the facts were not as represented, and not
upon the ground of contract; therefore it is not required
that the representations should be in writing under the

(a) Kirkham vy. Marter, 2 B. &
Ald. 613.

(6) Read v. Nash, 1 Wils. 305.

(c) See post, p. Lis.

(d) Harrison v. Cage, 1 L. Raym.
386; Cork v. Baker, 1 Strange, 34,
overruling Philpot v. Wallet, 3 Lev.
65.

(ce) Montacute- vy. Maxwell, 1 P.
Wms. 618; 1 Str. 236; Randall v.
Morgan, 12 Ves. 73; Barkworth v.

Young, 4 Drew. 1; 26 L. J. C. 153;
Shadwell v. Shadwell, 9 C. B. N.S.
159; 30 L.J. C. P. 145; Catonv. Caton,
34 L. J.C. 564; L. Rep. 1 Ch. Ap.
13
(f) Montefiori v. Montefori, VW.
Bl. 368; Neville v. Wilkinson, 1 Bro.
C. C. 543; Hamersley v. De Biel,
wWCc.e& EF. "15; 3 Beay. 469 ; Bold y.
aie, 5 De G. M. & ‘: 558 ;
24 L. J. C. 285; 25 2d. 598.
SECT. v. § 1. CONTRACTS WITHIN THE STATUTE OF FRAUDS. 131

statute in order to render him responsible for them (w).
But representations respecting matters of future intention
to be performed upon a marriage are equivalent to pro-
mises, and are within the statute; consequently writing
is necessary to establish them, notwithstanding the mar-
riage may have taken place upon the faith of their perform-
ance (6).

Contract or sale of lands, tenements or hereditaments, or
any interest in or concerning them.

A contract to take or give the tenancy of a house (c) ; a Contract or
contract by the plaintiff to surrender a tenancy in favour of Se ofmy
the defendant and to endeavour to prevail on the landlord land. _
to accept him as tenant (d); a contract to assign a te- gee
nancy (e); a contract to give up immediate possession of pation ot
a house which the person occupied under an agreement for
a lease (f); a contract for the sale of a business, as a milk-
walk, or a brickyard, with possession of the premises where
it is carried on (q), come within this description.

An agreement made between a lessor and a lessee of
premises, pending the lease, for the former to lay out a sum
of money in improvements, and the latter to pay a sum
every year in addition to the rent, was held not to be
within the statute; because no additional interest in the
land was given to the lessee beyond his previous interest
under the lease, nor was any additional interest in the land
given to the lessor, the annual payment not being in the
nature of rent reserved, or charged upon the land (h).

An agreement for apartments in a house which, if exe-
cuted, would create a tenancy of the apartments is within

(a) Ib.; Jorden v. Money, 5 H. L.
C. 185; 23 L. J. C. 865; Prole v.
Soady, 2 Giff.1; 29 L. J. C. 721.

(b) Jorden v. Money, supra; Mou-
tacute v. Maxwell, 1 P. Wms. 618;
Warden v. Jones, 23 Beav. 487; 2
De G. & J. 76; 26 L. J. C. 427; 27
ib. 190 ; andsce De Biel v. Thompson,
3 Beav. 469; Webster v. Webster, 27
L. J.C. 115.

(c) Mechelen vy. Wallace, 7 A.&H.
49 ; Vaughan vy. Hancock, 3 0. B. 766.

(d) Cocking v. Ward, 1 C. B. 858.

(e) Buttemere v. Hayes, 5M.& W.
456.

(f) Kelly v. Webster, 12 C. B. 283.

(9) Smart v. Harding, 15 C. B.
652; 24 L. J.C. P. 76; Hodgson v.
Johnson, T. B. & E. 685; 28 L. J.
Q. B. 88; and see Green v. Sadding-
ton, 7 E. & B. 503.

(h) Hoby v. Roebuck, 7 Taunt.
157; Donellan v. Read, 3B. & Ad.
899.

K 2
Auction,

Mortgages,

Shares in
companies.

132 CHAP. I. FORMATION OF CONTRACTS.

the statute (a); but an agreement merely for board and
lodging, not stipulating for the tenancy of any specific room,
is not within the statute (0).

A sale of land by auction is a contract within the
statute (c).

The equity of redemption of land which has been mort-
gaged is an interest in land within the statute, and a con-
tract made respecting it must be in writing (d). An equit-
able mortgage by deposit of title deeds is not within the
statute, and creates an interest in the land in equity without
any written evidence of the contract, because the contract is
executed by the deposit of the deeds (e); but an agreement
to make an equitable mortgage by deposit of deeds is within
the statute, and is not binding unless in writing (f).

A contract for the purchase of a bond granted by the
Westminster Improvement Commissioners under a statute,
which gave to the bondholder the benefit of a mortgage of
the lands purchased by the commissioners, was held to be
within the statute (g).

A contract to pay the costs of investigating the title to
land upon a proposed mortgage, in case the title should turn
out defective, was held not to be within the statute (h).

A share in a joint stock company or co-partnership, where
real estate is held by the company, or by trustees for the
purposes of the company, but the shareholders as such have
no specific interest in the land, being entitled only to a share
of the profits to be made by the business, is not an interest
in land within the statute ; as a share in a joint stock bank-
ing company holding real estate (i), a share in a railway
company (j), a share in a cost-book mining company (/) ;

(a) Inman vy. Stamp, 1 Stark. 12;
and see Edge v. Strafford, 1 0. & J.
391.

(0) Wright v. Stavert, 2 E. & E.
721; 29L. J. Q. B. 161.

(c) Walker v. Constable, 1 B. & P.

(9) Toppin v. Lomas, 16 C, B. 145;
24L. J.C. P. 144.

(h) Jeakes v. White, 6 Ex. 873.

(i) Humble v. Mitchell, 11 A. & E.
205.

306; Hinde v. Whitehouse, 7 East,
558.
. (d) Massey v. Johnson, 1 Ex, 241,
255.
(e) Russel v. Russel,1 Bro.C.C. 269;
1 White & Tudor, L. C. 2nd ed. 541.
(f) Ex parte Coombe, 4 Madd. 249.

(j) Tempest v. Kilner, 3 C. B. 249;
Bradley v. Holdsworth, 3 M. & W.
422.

(kt) Watson v. Spratley, 10 Ex.
222; 24 L. J. Ex. 53; Powell y,
Jessop, 18 C. B. 336; 25 L. J. C. P.
199; and see Caddick v. Skidmore,
2DeG@.&J, 52; 27 L. J. C. 153.
SECT. v. § 1. CONTRACTS WITHIN THE STATUTE OF FRAUDS. 133

and such shares are not within the description of “ goods,
wares, and merchandise,”’ contained in the 17th section (a).

The property in fixtures, that is to say, things annexed to Fistures,
the freehold but subject to a right of removal in the tenant,
while they remain fixed to the land, constitutes an interest
in land; so that such fixtures cannot be recovered in an
action of trover (4); nor can the price of them be recovered
under a count for goods sold and delivered (c) ; after sever-
ance they become goods and chattels (d). The right of
removing fixtures is not an interest in land within the sta-
tute, and may be assigned without writing (e); nor is it
within the description of ‘ goods, wares, and merchandise,”
contained in the 17th section of the statute (f).

The sale of emblements, or the annual growing crops gmble.
sown by the tenant of land (g), is not considered as a contract men's a

: ‘he produce

concerning an interest in the land for the purpose of the of land.
statute (1). An agreement for the sale of a growing crop
of potatoes ig not a contract for an interest in land within
the fourth section of the statute (2) ; so, a sale of growing
crops of corn (j); but these contracts are within the 17th
section of the statute as being sales of goods (k). It has
been held that a contract for the sale of growing crops of
hops was not merely a sale of goods, but gave an interest
in the land within the fourth section (1); also that a sale of
a growing crop of turnips was within the fourth section (i);
but these cases, it is said, would now probably be decided
differently (1).

A contract for the sale of a growing crop of grass, being
a natural and permanent crop and not coming within the

(a) See post, p. 138.

(b) Minshall v. Lloyd, 2 M. & W.
450; Mackintosh v. Trotter, 3 M.& W.
184; Wildev. Waters, 16 C. B. 637.

(ce) Lee v. Risdon, 7 Taunt. 188 ;
Hallen v. Runder, 1 C. M. & R. 266,
276.

(d) Ib.; Dalton v. Whittem, 3Q.B.
961.

(e) Hallen v. Runder, supra.

(f) b.; and see Horsfall v. Hey,
2 Ex. 778.

(g) See Co. Lit. 55 a, 6; Williams
Ex. 5th ed. 630.

(2) 1 Wms. Saund. 277 6, n. (f).

(2) Evans v. Roberts, 5 B. & C. 829;
Sainsbury v. Matthews, 4 M. & W.
343.

(j) Jones v. Flint, 10 A. & EB. 753.

(k) Post, p.1388; Evans v. Roberts,
supra; and see Smith v. Surman, 9
B. & C. 561.

(1) Waddington v. Bristow, 2 B.
& P. 451.

(m) Emmerson v. Heelis, 2 Taunt.
38.
(n) See Evans v. Roberts, 5B. & C.
829, 835; Rodwell v. Phillips, 9 M.
& W. 501, 503; Jones v. Flint, 10
A. & E. 753, 759,
Licenses to
enter land.

134 CHAP. I. FORMATION OF CONTRACTS.

description of emblements, is a contract for an interest in
land within the statute and must be in writing (a); so, a
contract for the sale of a growing crop of trees or under-
wood (b). A contract for the sale of crops of fruit, growing
on fruit trees, was held to be a contract for the sale of an
interest in land within the Stamp Act (¢).

Where a contract is made for the tenancy or possession
of land, together with the growing crops left upon the land,
and the benefit of work, labour, and materials, previously
expended in tilling the land, though the crops and tillages
may be agreed to be paid for at a separate valuation, they
are considered as forming part of the land, and the contract
must be in writing (d).

A contract for the sale of the produce of land, to be taken
as goods, does not give any interest in the land, though it
is not severed from the land at the time of the contract; as
a contract for the sale of potatoes, then being in the ground,
at so much per sack, or so much per acre (¢). A contract
for the sale of timber at so much per foot, being the produce
of certain trees then growing, when they should be cut down,
was held not to be a contract for the sale of the growing
trees, and therefore not to give any interest in the land (/).
A contract for the right to feed cattle on certain land was
held to be a contract for the agistment of cattle, and not to
give an interest in the land (9).

Such contracts are not brought within the fourth section,
as giving an interest in land, merely because they give to
the purchaser a license to come upon the land to take the
produce (1). A license to enter land conveys no interest in
the land ; it only renders the entry lawful which would other-

wise be unlawful (i).

(a) Crosby v. Wadsworth, 6 East,
602; Bvans v. Roberts, 5 B. & C.
829, 832; Shelton v. Livius, 2 C. &
J. 411; Carrington y. Roots, 2 M.
& W. 248.

(4) Scorell v. Boxall, 1 Y. & J.
396; Teal v. duty, 2B. & B. 99.

(c) Rodwell vy. Phillips, 9M. & W.
501.

(2) Earl Falmouth y. Thomas, 1
C. & M. 89; and sco Mayfield v.
Wadsley, 3 B. & C. 357.

A parol license coupled with a valid

(e) Parker v. Staniland, 11 East,
862; Warwick y. Bruce, 2 M.& 8.
205.

(f) Snnith v. Surman, 9B. & C. 561,

(g) Jones v. Flint, 10 A. & E. 753.

(A) See Smith v. Surman, 9 BL & CO.
561, 5738.

(i) Wood v. Leadbitter, 13 M. &
W. 8388, 844; and see Winter y.
Brockwell, 8 Kast, 308, 310 (a) ; Hew-
lins v. Shippam, 5B. & C, 221.
SECT. V. § 1. CONTRACTS WITHIN THE STATUTE oF FRAUDS. 135

grant is irrevocable, by reason of the grant which the grantor
cannot defeat (a) ; thus, where a quantity of hay, bemg upon
a person’s land, was sold by him upon the terms that the pur-
chaser might enter upon the land to remove it when he liked
within a certain time, the license to enter the land was held
to be irrevocable () ; but where an agreement was made
without writing for the sale of a growing crop of grass, with
liberty to enter the land for the purpose of cutting and taking
it, the license was held to.be revocable, because the vendor
could not be charged with such a contract without writ-

ing (c).

Agreement that'is not to be performed within the space of
one year from the making thereof.

By this description is intended such contracts as are inca- Agreement
pable of being completely performed within the year (d)}. A Seen
contract of service for a term of more than a year is within - .
the statute (e). A contract for a year’s service, to commence
at a future day, cannot be performed within the year and is
within the statute (f). Where parties after a yearly hiring
continue the service by common consent without express
agreement, a fresh hiring for a year is implied from the ex-
piration of the first year, and such hiring is not within the
statute (9).

A contract to pay an annuity for five years is within the
statute (h) ; so, a contract for a partnership for ten years (7).

A contract contained in a prospectus to publish by subscrip-
tion a series of prints of scenes from Shakespeare’s plays,
seventy-two in number, to be published in parts containing
four prints at the price of three guineas, one part at least to
be published annually, was held to be a contract not to be
performed within a year (j). A contract by which the incum-

(a) Wood vy. Leadbitter, 18 M.& Ald. 722; Snelling v. Lord Hunting-

W. 838, 845.

(6) Wood v. Manley, 11 A. & E. 37.

(ec) Carrington v. Roots, 2M. & W.
248 ; ante, p. 133; and see Crosby v.
Wadsworth, 6 East, 602.

(d) See Boydell vy. Drummond, 11
East, 142.

(e) Giraud vy. Richmond, 2 C. B.
835.
(f) Bracegirdle v. Heald, 1 B. &

field, 1 C. M. & R. 20; and see Caw-
thorn v. Cordrey, 13 C. B. N. 8. 406;
82 L. J. C. P. 152.

(7) Beeston v. Collyer, 4 Bing.-309.

(A) Sweet v. Lee, 3M. & G. 452.

(i) Williams v. Jones, 5 B. & OC.
108, 110.

(7) Boydell v. Drummond, 11 Fast,
112; and see Mavor y. Pyne, 3 Bing.
2805.
Contract
which may
be perform-
ed within
the year.

136 CHAP. I. FORMATION OF CONTRACTS.

bent of a parish engaged a curate, to be paid by an annual
grant made by a society, and undertook to apply in each
and every year according to the rules of the society for the
payment of the grant to the curate, was held to be within
the statute (a).

Contracts which may be performed within the year are not
within the statute; and contracts, the performance of which
depends upon a contingency which may happen within the
year, are not within the statute. A promise to pay money
upon the return of a ship, which might return within a year,
was held not to be within the statute, although the ship in
fact did not return within two years (6). So, an agreement in
which the defendant promised for one guinea to give the
plaintiff so many at the day of his marriage was held not to
be within the statute, though the marriage did not take place
within a year (c). So, an agreement to leave money by
will (d) ; a promise by a person that his executor shall pay
a sum of money (e); and a contract to pay a guinea a day
during the life of a person (f), are not within the statute. A
contract by the defendant to pay the plaintiff one guinea per
month for the maintenance of a child, to continue so long as
the defendant should thisk proper, was held not to be with-
in the statute (g).

The statute includes only those contracts which cannot be
performed within a year on either side ; contracts which may
be performed within the year on one side, though they can-
not be performed within the year on the other side, are not
within the statute; thus, a contract for the sale of goods to
be delivered in six months, and to be paid for in eighteen
months, would not be within the statute (hk). A contract for
the sale and assigninent of a patent, to be paid for by pay-
ments at periods extending beyond a year, is not within the
statute, because it is capable of being performed by the

(a) Roberts v. Tucker, 3 Ex. 632. (f) Gilbert v. Sykes, 16 East, 150,

(6) Anonymous, 1 Salk. 280. 154.

(c) Peter v. Compton, Skinner, 358 ; (9) Souch vy. Strawbridge, 2 C. B.
1 Smith’s L. C. 5th ed. 283. 808.

(d) Fenton vy. Emblers, 3 Burr. (h) Per Abbott, J., Bracegirdle v.
1278; Ridley v. Ridley, 34 L. J.C. Heald, 1 B. & Ald. 722, 727; per
462. Parke, J., Donellan v. Read, 3 B. &

(ce) Wells v. Horton, 4 Bing. 40. Ad. 899, 903.
Sect. v. § 1. CONTRACTS WITHIN THE STATUTE oF FrauDs. 137

seller within the year (a). So, a contract between a landlord
and tenant for the landlord to lay out £50 in improvement
of the premises, no time being given for so doing, and the
tenant to pay £5 a year increased rent during the remainder
of the term, was held not within the statute (6d).

A contract which cannot be performed within the year is Se
not taken out of the operation of the statute by reason that be put an
it may be defeated, or put an end to, within the year (c). ies
Thus, a contract for the hire of a carriage from a coachmaker
for five years for an annual payment, but which by the custom
of the trade is determinable at any time within that period
on payment of a year’s hire, is within the statute (d). A
contract of service determinable by three months’ notice be-
fore a certain date, otherwise to continue for another twelve
months, was held within the statute (e),

Contract for the sale of goods of the value of £10.
The contracts affected by the 17th section are contracts elem
“for the sale of any goods, wares, and merchandises, for the of goods of
: : the value of
price of ten pounds sterling or upwards.”? Lord Tenterden’s £10,
‘Act, 4 Geo. IV. c. 14, s. 7, after reciting this section of the
statute, and that it had been held that it did not extend
to certain executory contracts for the sale of goods which
nevertheless were within the mischief thereby intended to
be remedied, and that it was expedient to extend to such
executory contracts, enacted “ that the said enactment shall
extend to all contracts for the sale of goods of the value of
ten pounds sterling and upwards, notwithstanding the goods
may be intended to be delivered at some future time, or may
not atthe time of such contract be actually made, procured,
or provided, or fit or ready for delivery, or some act may be
requisite for the making or completing thereof, or rendering
the same fit for delivery”? (/).

(a) Cherry v. Heming, 4 Ex. 631 ; (d) Birch v. Earl of Liverpool, 9
Smith v. Neale, 2 C. B. N.S. 67; 26 B.& C. 392.
Ie ol, CAE, 145, (e) Dobson v. Collis,1 H. & N.81;

(2) Donellan v. Read, 3 B.& Ad. 25 L. J. Ex. 267.
899; and see Hoby v. hoebuck, 7 (f) As to contracts of this kind be-
Taunt. 157. fore Lord Tenterden’s Act see Towers
(ec) Per Alderson, B., Roberts vy.  v. Osborne, 1 Str. 506; Mucklow v.
Tucker, 3 Ex. 632, 643. Mangles, 1 Taunt. 318; Buxton y. Be-
Shares in
companies.

Emble-
ments.

Produce of
land,

Fixtures.

Contracts
for work
and labour
in making
goods,

138 CHAP. I. FORMATION OF CONTRACTS.

The 7th section of Lord Tenterden’s Act and the 17th
section of the Statute of Frauds are to be read and con-
strued together (a); and one effect of the more recent
enactment is to substitute the words “ value of ten pounds”
for the words “‘price of ten pounds” in the 17th section of
the Statute of Frauds (8).

Shares in a joint stock banking company are not “ goods,
wares, or merchandises,’”’ within the section, being mere
choses in action and incapable of delivery (c). A contract
for the sale of railway shares, or railway scrip, is not within
the section (d); so, a contract for the sale of foreign stock (e).

The sale of emblements, or the annual growing crops sown
by the tenant of land, (which is not considered to be a con-
tract within the 4th section as concerning an interest in the
land) is held to be a sale of goods within the 17th sec-
tion (f). The sale of the produce of land, to be taken as
goods, though it is not severed from the land at the time of
sale, is held not to be a contract concerning an interest in
the land within the 4th section of the statute, but a contract
relating to the sale of goods within this section (g) ; as a
sale of timber at a certain price per foot, being the pro-
duce of certain trees then growing, when they should be cut
down (h); so, a sale of a crop of seed to be sown and pro-
duced on certain land at so much per bushel (7).

The right to remove fixtures does not come within the
description of goods, wares, and merchandises, within this
section, nor is it an interest in land within the fourth (/).

Contracts for work and labour, though expended in mak-
ing goods for the employer, are not contracts for the sale of
goods within the statute. Thus, a contract with a person to

dal, 3 Hast, 308, seeming to hold them
not within the statute; and Cooper v.
Elston, 7 T. R. 14; Wilks v. Athin-
son, 6 Taunt.11; Garbutt v. Watson,
5 B.& Ald. 613; Smith v. Surman,
9 B. & C. 561, holding the contrary.

(a) Scott v. Bastern Counties Ry.
Co., 12 M, & W. 33, 38.

() Sve Harman v. Reeve, 18C. B.
587; 25 L. J. C. P. 257.

(ce) Humble v. Mitchell, 11 A. & E,
205.

(d) Tempest v. Kilner, 3 C. B. 249;

Bowlby v. Bell, 3 C. B. 284; Knight
vy. Barber, 16 M. & W. 66.

(e) Heseltine v. Siggers, 1 Ex. 856.

(f) Evans y. Roberts, 5 B. & C.
829; and see ante, p. 133.

(g) See ante, p.134; Sith v. Sur-
man, 9 B. & C. 561.

(h) Smith v. Surman, supra.

(*) Watts v. Friend, 10 B. & OC.
446.

(7) See ante, p. 183; Hallen v.
Runder, 1 C. M. & R. 266; and see
Horsfatl v. Hey, 2 Ex. 778.
SECT. V. § 1. CONTRACTS WITHIN THE STATUTE OF FRAUDS. 139

make an article with the materials of the employer is a con-
tract for work and labour, and not within the statute (a).
A contract with a person to work up his own materials in mak-
ing an article, and to deliver it, may be a contract for work
and labour and the materials incident to the employment, or
a contract for the sale of goods, according to the circum-
stances (b) ; thus, a contract with an attorney to prepare a
deed (c), a contract for contriving a machine for a certain
purpose (d), a contract with a printer to print a book (e),
are contracts for work and labour and materials, and not for
the sale of goods, and are not within the statute. A con-
tract for the manufacture of a machine (j'), a contract with
a tailor or shoemaker for the making of articles of their
trade (g), a contract with a miller for a quantity of flour
which he had to grind (1), a contract to make a set of
artificial teeth to fit the mouth of the purchaser (i), a con-
tract with an artist for a work of art (7), are not contracts
for work and labour, but for the sale of goods when com-
pleted.

A contract for the sale of goods at a certain price, includ-
ing the carriage and delivery of them at a certain place, is
within the statute (k). Where a carrier was employed by a
purchaser of goods to buy them for him, and to carry and
deliver them, the contract was held not to be within the
statute (J).

A sale of goods by auction is within the statute (mm). Asien:
_ The statute applies only to contracts for the sale of goods vate of the
of the value of ten pounds sterling and upwards (n). If one-8eds sold.

(a) Per Bayley, J., Atkinson v. (h) Garbutt v. Watson, 5 B. & Ald.
Bell, 8 B. & C. 277, 2838. 613; and see Wilks y. Atkinson, 6

(4) Ib. and see Lee v. Griffin, 1B. Taunt. 11; Rondeau v. Wyatt, 2 H.
& 8. 272; 30 L. J. Q. B. 252. Bl. 63, 67.

(c) See per Erle, J.. Grafton v. (4) Lee v. Ne 1B. & 8. 272;

Armitage, 2 C. B. 336, 339; per 3801.3. Q. B. 2)
Blackburn, J., Lee v. Griffin, 1 B. & (7) Lee v. Gr ‘fin, supra ; but see

8. 272, 277. per Pollock, C.B., Clay v. Yates, 1
(d) Grafton v. Armitage, 2 C.B. H.& N.73, 78; 25 L. J. Ex. 237, 239.
336. (k) Astey v. Emery, 4M. & 8. 262.
(e) Clay v. Yates,1 H. & N. 73; (2) Cobbold vy. Caston, 1 Bing. 399.
25 L. J. Ex. 237. (m) Hinde v. Whitehouse, 7 Fast,
(f) Atkinson v. Bell, 8B.& C.277; 558; Kenworthy v. Schofield, 2 B. &
see Grafton v. Armitage, supra. C. 945; overruling Simon v. Motivos,

(g) Per Coltman, J., Grafton v. 1 W. Bl. 599; see ante, p, 182.
Armitage, 2 C. B. 336, 341. (n) See ante, p. 188.
Sales of
several
articles.

Forms an

140 CHAP. I, FORMATION OF CONTRACTS.

contract is made for the sale of several articles, the value of
which collectively is above ten pounds, though the value of
each article separately may be less than ten pounds, the con-
tract is within the statute (a).

A purchase of various articles in a shop on one occasion
at separate prices was held to be one contract, and, the
articles together being above the value of ten pounds, within
the statute (6). Ata sale by auction each lot sold is a dis-
tinct contract, and if the same person buys several lots, each
of less value than ten pounds, his contracts are not within
the statute, though collectively the value of the lots may be
above ten pounds (c). The parties may subsequently treat
the several sales as one entire contract by entering them
altogether as one contract in a written memorandum (d).
Whether a sale of several articles forms one contract or
several seems, in general, to be a question of fact for the
decision of the jury (e).

Cuar. I. Szor. V. § 2. Forms anp Conpitions Requirep
BY THE STATUTE OF FRauDs.

Memorandum in Writing un- Signature by Agent ............ 150
der ss. 4and 17... Acceptance and Receipt of
When it may be made ........ Goods under 8.17 ............
Contents A Earnest or Part Payment
Signature by Party charged ... 148

 
    

q THe fourth section enacts ‘ that no action shall be brought

conditions y Whereby to charge” any person upon any of the contracts of

require!

the statute, the kinds therein described, ‘‘ unless the agreement upon

\

which such action shall be brought, or some memorandum
or note thereof shall be in writing, and signed by the party
to be charged therewith, or some other person thereunto by
him lawfully authorized.”

The seventeenth section enacts “ that no contract’ of the

(a) Baldey v. Parker, 2 B. & C. 37. (d) Franklyn v. Lamond, 4 0. B,.
(b) 1b.; and see post, p. 160. 637 ; and see Biggs v. Wisking, 14
(c) Emmerson vy. Heelis, 2 Taunt. C. B. 195.

38; Roots v. Lord Dormer, 4B. & Ad. (e) Sce ane vy. Sweeting, 9 C.B.

77; James v. Chapman, 1 Stark. 427. N.S, 843
Sect. v. § 2. FORMS REQUIRED BY THE STATUTE OF FRAUDS. 141

kind therein described “ shall be allowed to be good, except
the buyer shall accept part of the goods so sold and actually
receive the same, or give something in earnest to bind the
bargain or in part payment, or that some note or memoran-
dum in writing of the said bargain be made, and signed by
the parties to be charged by such contract, or their agents
thereunto lawfully authorized.”

It is proposed to treat first of the requirements of the sta-
tute respecting the note or memorandum in writing com-
mon to both sections, and then-to treat in order of the other
modes of exception provided in the seventeenth section,
namely, the acceptance and receipt of part of the goods sold,
and the giving of something in earnest or in part payment.

The statute does not require that the contracts to which it Memoran-
relates should be originally made in writing. If the parties ae
have originally made their contract in writing, that writing
alone contains the contract by virtue of their agreement (a) ;
and it also, if signed, satisfies the requirements of the sta-
tute. If they have not made their contract in writing, the
plaintiff, seeking to charge the defendant with it, must resort
to written documents signed by him, as letters, memoranda,
etc. containing the terms of their contract, in order to satisfy
the requirements of the statute (0).

A letter, the contents of which ascertain and identify the What kina
agreement, will serve this purpose ; so, a letter referring to owuine
another document containing the terms of the contract (c) ;
an invoice or bill of parcels signed by the party to be
charged (d) ; a memorandum of the contract entered by one
of the parties in his own book kept m his own possession (e) ;
an order book of a tradesman containing a list of articles
ordered and signed by the purchaser (/).

(a) See ante, p. 100.

(0) Sievewright v. Archibald, 17 Q.
B. 103, 107, 114; Roberts v. Tucker,
3 Bx. 632, 641,

(ce) Saunderson v. Jackson, 2 B. &
P. 238; Allen v. Bennet, 3 Taunt.
169; Dobell v. Hutchinson, 3 A. & KB.
355; Ridgway v. Wharton, 6 H. L.
C. 238. ‘

(d) Saunderson v, Jackson, 2B. &

P. 238; Schneider v. Norris, 2M. &
S. 286; Durrell v. Evans, 1 H. & C.
174; 31 L. J. Ex. 337; Wilkinsonv.
Evans, L. Rep. 1 C. P. 407; 35 L. J.
C. P. 224.

(e) Johnson v. Dodgson, 2 M.& W,
653.

(f) Sarl vy. Bourdilion, 1 C. BLN.
8.188; 26L. J. ©. P. 78,
Memoran-
dum con-
tained in
several
writings.

142 CHAP. I, FORMATION OF CONTRACTS.

Brokers’ bought and sold notes are sufficient, unless they
disagree in their terms (a) ; one of such notes is sufficient
though the other is not produced, and it will be presumed
that they agree (b) ; the entry of the contract in the brokers’
own book is sufficient to charge the parties in the absence
of the bought and sold notes (ce).

An affidavit sworn to and signed by the defendant in
another cause was held to be a sufficient memorandum of the
terms of an agreement mentioned in it which had been pre-
viously made by parol (d).

So, a letter written by one of the parties to his own solicitor
or agent, or a correspondence between the party and his
agent containing the terms of the contract (e).

The note or memorandum may consist of several docu-
ments, if they are sufficiently connected together by internal
reference. A letter written after a sale by auction, acknow-
ledging the sale and referring to the conditions of sale, was
held to incorporate those conditions with the letter, so as to
constitute a memorandum of the contract sufficient to charge
the party signing it, though he did not sign the conditions
separately(f). A letter referrmg to a memorandum of agree-
ment, and supplying certain particulars in which the me-
morandum was deficient, was held jointly with the memo-
randum to satisfy the statute (g). A correspondence between
the parties by letters sufficiently connected together by their
contents, and containing the terms of the contract, consti-
tutes a sufficient note in writing (h).

But several documents cannot be connected by external
evidence for the purpose of making a note or memorandum

and see Welford v. Beazely, 3 Atk.

(a) Goom y. Aflalo, 6 B.& 0.117 ;
503; Rose v. Cuninghame, 11 Ves.

Sievewright y. Archibald, 17 Q. B.

103.

(b) Parton v. Crofts, 16C. B.N.S.
11; 33L.J. C. P. 189.

(c) See per Parke, B., Thornton v.
Charles, 9 M. & W. 802, 807; Pitts
v. Beckett, 18 M. & W.743, 746 ; per
Lord Campbell, C.J., Sievewright v.
Archibald, 17 Q. B. 103, 124.

(d) Barkworth vy. Young, 4 Drew. 1;
26 L. J. C. 153 ; and sce Rondeau v.
Wyatt, 2 WH. Bl. 63.

(e) Gibson v. Holland, 1 H. & R.
1; 35L.3.0.P.5;L.R.10.P.1;

550; Barkworth v. Young, 4 Drew.
I, 13.

(f) Dobell vy. Hutchinson, 3 A.&E.
355 ; and see Phillimore v. Barry, 1
Camp. 513; Ridgway v. Wharton,
6H. L. C. 238; 27 L. J. C. 46.

(g) Allen v. Bennet, 3 Taunt. 169 ;
Brettel v. Williains, 4 Ex. 623; TFar-
ner v. Willington, 3 Drew. 523; 25
L. J. C. 662.

(h) Allenv. Bennet, 3 Taunt. 169 ;
Jackson vy. Lowe, 1 Bing. 9,
SECT. V. § 2. FORMS REQUIRED BY THE STATUTE OF FRAUDS. 143

to satisfy the statute (a). A party signed his name in a
book as a subscriber to a work to be published according to
a printed prospectus, but the signed book contained no refer-
ence to the prospectus ; it was held that there was no signed
memorandum of the contract (b). A sale by auction took
place according to printed conditions of sale, and a memo-
randum in writing was made of the sale of a lot without in-
cluding or referring to the conditions ; it was held that they
could not be connected by external evidence (c).

' Itis sufficient if there isa memorandum of the contract
at the time of action brought, though none existed at the
time of making the contract ; but a memorandum made after
the commencement of an action upon the contract is not
sufficient to maintain the action (d). Where an agreement
was made in consideration of marriage within the statute,
and the marriage took place, a memorandum made after the
marriage was held sufficient (e). An agreement or proposal
of an agreement in writing, signed by the party charged
before it was accepted by the other party, is sufficient (/).

The note or memorandum, both under the 4th and under
the 17th sections, must contain the terms of a complete con-
tract between the parties; and if any essential term is
wanting, the memorandum is insufficient (9) ; for the sta-
tute operates upon the evidence of contracts only, and does
not render them enforceable in any case in which at common
law they would not have been so (hk). Hence the writing
must contain the names of the two contracting parties, the
matter of the contract, comprising the consideration and the
promise, and must import an agreement of the parties to the
same terms (t).

A memorandum of a contract of sale in which the name

(a) See Ridgway v. Wharton, 3 (f) Reuss y. Picksley, L. R. 1 Ex.
DeG. M. & G. 677, 694. 342.

(6) Boydell y. Drummond, 11 Fast, (g) Wain vy. Walters, 5 East, 10 ;
142. 2 Smith’s L. C. 5th ed. 208; per

(c) Kenworthy v. Schofield,2B.& Bayley, J.. Kenworthy v. Schofield, 2
C. 945. B. & C. 945, 947.

(d) Bill v. Bament, 9 M. & W. 36; (h) Rannv. Hughes, 7 Bro. P. CO.
and see Fricker v. Thomlinson,1M.& 650; 7 V. R. 350, (a).
G. 772, 774. (t) See Laythoarp v. Bryant, 2

(e) Barkworth v. Young,4Drewry, Bing. N. C. 735, 742.
1; 26 L. J. O. 153, 157.

When the
memoran-
dum may
be made.

Contents of
the memo-
randum.

The me-
morandum
144 CHAP. I. FORMATION OF CONTRACTS.

must con- of the buyer or of the seller does not appear is not sufficient,
ee ¢ nor is the other party chargeable thereby, although it is
a par- signed by him (a). A memorandum as follows :—“ A. agrees
; to buy the marble purchased by B., etc.” was held not suffi-
ciently to designate the name of B. as the seller (4). So, a
written guarantee signed by the defendant, but in which the
name of the party to whom it was made did not appear, was
held insufficient (c). A memorandum of agreement for a lease
signed by the lessee, but in which the name of the lessor did
hot appear, was held to be insufficient ; but it was also held
that the deficiency was supplied by a letter from the lessee
referring to the memorandum and mentioning the name of
the lessor (d). The defendant purchased goods of the plain-
tiff and wrote his name in the order book of the plaintiff
before the list of articles ordered, and the name of the plain-
tiff appeared on the fly-leaf of the book; it was held that
there was a sufficient memorandum containing the names of

both the parties to charge the defendant (e).
The me- A written document which does not show either in express
morandum terms, or by necessary implication, a valid consideration for
Lat the promise is not a sufficient memorandum of a contract (/).
tion and Thus, a written document in which the defendant agreed to

e pro-

remain with the plaintiff for two years to learn a business was
held insufficient, for not stating an engagement by the plain-
tiff to teach, or any other consideration (q). A contract of sale,
not mentioning the price, would import a sale at a reasonable
price, and would be a sufficient memorandum, provided no
other price had in fact been agreed upon (). So, an order for
goods “on moderate terms” is a sufficient memorandum of
a contract to that effect (i). An agreement fora lease in which

mise.

(a) Champion v. Plummer, 1 B. &
P.N. R. 252; Wheeler v. Collier, M.
& M. 123; Graham v. Musson, 5 Bing.
N. C. 603.

(b) Vandenbergh v. Spooner, L.
Rep. 1 Ex. 316.

(c) Williams v. Lake, 2 E. & E.
349; 29 L. J. Q. B. 1.

(d) Warner v. Willington, 3 Drew.
523; 25 L, J. C. 662; and see Allen
v. Bennet, 3 Taunt. 169.

(e) Sarl vy. Bourdillon, 1 C. BLN.
8.188; 26 L, J. C. P. 78.

(f) Wain v. Warlters, 5 East, 10;
2 Smith’s L. C. 5th ed. 208; Jenkins
vy. Reynolds, 3B. & B.14; Hawes v.
Armstrong, 1 Bing. N. C. 761, 765.

(g) Lees v. Whitcomb, 5 Bing. 34 ;
and see Sykes v. Dixon, 9 A. & E. 693.

(h) Elmore vy. Kingscote, 5 B. & C.
583; Acebal v. Levy, 10 Bing. 376,
383; Hoadly y. M‘Laine, 10 Bing.
482. ‘

(i) Asheroft v. Morrin, 4 M. & G.
450.
SECT. V. § 2. FORMS REQUIRED BY THE STATUTE OF FRAUDS. 145

the term is not mentioned would not be sufficient, unless it
could be presumed to be a letting from year to year («).

Guarantees or “ promises to answer for the debt, default, The consi-_

. . : , deration of

or miscarriages of another person,” have been recently ex- 4 gnarantee
cepted from the rule requiring that the consideration for the See
promise should appear inthe memorandum ()). By the Mer- writing.
cantile Law Amendment Act, 1856, 19 & 20 Vict. c. 97, s.
3, it is enacted that “no special promise to be made by any
person after the passing of this Act to answer for the debt,
default, or miscarriage of another person, being in writing and
signed by the party to be charged therewith or some other
person by him thereunto lawfully authorized, shall be deemed
invalid to support an action, suit, or other proceeding to charge
the person by whom such promise shall have been made, by
reason only that the consideration for such promise does not
appear in writing, or by necessary inference from a written
document.”? Under this section the consideration of the
contract may be proved by parol evidence ; but the promise
must still be complete in the writing, and the parol evidence
admissible to prove the consideration cannot be used to ex-
plain the written promise (c). A written guarantee is held
not to be exempt from an agreement stamp merely by reason
of the consideration being proved by parol evidence, instead
of being included in the writing (d).

The writing must show an agreement of both the parties The me-
to the same terms. A letter of the defendant admitted giving mondm™
an order for goods as entered in writing by the seller, but am agree-
asserted an additional term as to the time of delivery ; it was Tea pase
held not to be a sufficient memorandum of a contract (e). So, bt oe
the plaintiff having sold certain timber to the defendant wrote
him a letter specifying the terms of the sale and requesting

him to pay for it, to which the defendant replied by letter

vy. Reynolds, 3 B.& B.14; Price v.

(a) Clinan v. Cooke, 1 Sch. & Lef.
22; Fitzmaurice v. Bayley, 8 E. &
B. 664; 27 L. J. Q. B. 143; and see
Richardson vy. Langridge, 4 Taunt.
128.

(b) See ante, p. 121; and see the
cases before that statute; Wain v.
Warlters, 5 East, 10; Morley v.
Boothby, 3 Bing. 107; Saunders v.
Wakefield, 4B. & Ald. 595; Jenkins

Richardson, 15 M. & W. 539.

(¢) Holmes v. Mitchell, 7 C.B. N.
8. 361; 28 L. J. C. P. 301.

(d) Glover v. Hackett, 2H. & N.
487; 26 L. J. Ex. 416.

(e) Cooper v. Smith, 15 East, 103 ;
and see Richards v. Porter, 6 B. & C.
437.
146 CHAP, I. FORMATION OF CONTRACTS.

asserting that the sale was conditional upon the quality of
the timber ; it was held that there was not a sufficient memo-
randum of a contract (a). The plaintiff charged the defendant
with a sale of specific barrels of flour and sent him an invoice
containing the description and price, and the defendant an-
swered by letter that he bought the flour by sample with which
the flour sent did not agree; there was held to be no sufhi-
cient memorandum (b). Where a contract is made through
brokers’ bought and sold notes, and the notes materially
differ from each other, they are not a sufficient memorandum
of a contract (c); but where a broker’s note sent to one
party, though varying, from that sent to the other, agrees
with the contract actually made, it seems that it would be a
sufficient memorandum of that contract (d) ; and where one
of the notes only is produced as evidence of the contract, it
‘will be assumed that it agrees with the note not produced,
and is sufficient to satisfy the statute (e).

a If the writing admits the contract charged, it is immaterial

ing liabi: that it also repudiates liability under it for a reason not

Hig affecting the admission of the contract. The plaintiff wrote
to the defendant a letter referring to the terms of a contract
made with him for the sale and delivery of certain goods,
and complaining of the quality of the goods already delivered ;
the defendant answered by a letter not disputing any of the
terms mentioned, but asserting that he had performed the
contract as far as it had gone and was ready to perform the
remainder ; the letters were held to be a sufficient memoran-
dum of the contract to charge the defendant (f). A letter
from the defendant referring to a purchase of goods from
the plaintiff, but refusing to accept or pay for them on the
ground that the carrier had damaged them in the transit, was
held sufficient to satisfy the statute (7). The defendant wrote
on the back of the invoice sent with the goods to the effect
that the goods had arrived, but that they were badly crushed,

(a) Smith v. Surman, 9B.&C.561. — chibald, supra.

(b) Archer vy. Baynes, 5 Tix. 625. (e) Parton v. Crofts, 16 C. B.N.S.
(ce) Grant y. Fletcher, 5 B. & C. 11; 33 L.J. C. P. 189.
436; Gregson v. Ruck, 4Q. B. 737 ; (f) Jackson vy. Lowe, 1 Bing. 9.
Sievewright v. Archibald, 17 Q. B. (9g) Bailey v. Sweeting, 9 C.B. N.
103, ante, p. 15. 8. 843; 301. J.C. P. 150.

(d) Per Erle, J., Sievewright v. Ar-
¢

SECT. V. § 2. FORMS REQUIRED BY THE STATUTE oF FRAUDS. 147

and therefore he returned them, and signed his name ; it was
held that there was a sufficient memorandum (a). <A letter
from the defendant referring to a written memorandum of
agreement previously made, and begging to withdraw it,
would, it seems, be sufficient (b). An answer by a defendant
to a billim Chancery admitting an agreement charged, but
pleading the Statute of Frauds, was held insufficient to charge
the defendant in an action upon the same agreement (c).

The writing must not only contain a complete contract, but The me-
must contain the contract in fact made; and a defendant ae
charged with a contract contained in a writing signed by him ya
may show by extrinsic evidence that such contract is not the made.
contract which he in fact made. Thus, a letter written by the
defendant admitting the purchase of a horse from the plain-
tiff, but not mentioning any price, was held to be an insuf-
ficient memorandum of the contract actually made to buy
the horse at a price agreed upon (d). But where a contract
was made for the sale of goods without fixing any price, and
which therefore amounted in law to a contract of sale at their
reasonable value, a memorandum in writing of the contract
not mentioning any price was held sufficient (ce). A letter
containing an agreement to let premises, but not stating the
duration of the term, was held an insufficient memorandum
of a contract to let for a certain term (f); it might be a suf-
ficient memorandum of a letting from year to year (g). A me-
morandum of the sale of an article described as “acandle-
stick complete” was held a sufficient memorandum of the
contract to satisfy the statute, though it was also agreed as
part of the contract that certain additions should be made to
the article to render it complete, which were not mentioned
in the memorandum (i).

A contract was made for the sale by the plaintiff to the de-
fendant of certain goods at the then shipping price, and the

(a) Wilkinson v. Evans, L. Rep.

1C.P.407; 35 L. J. C. P. 224.

(6) Warner v. Willington, 3 Drew.

528; 25 L. J. C. 662.

(c) Rondeau y. Wyatt, 2 H. Bl. 63.
(d) Elmore vy. Kingscote, 5 B. & C.

583.

(e) Hoadley v. M‘Laine, 10 Bing.

482; Asheroft v. Morrin, 4 M. & G.
450 ; and see ante, p. 144.

(f) Fitzmaurice v. Bayley, 8E.&B.
664; 27 L. J. Q. B. 148.

(g) Lb.; and see Richardson y. Lang-
ridge, 4 Taunt. 128.

(h) Sarl vy. Bourdilion, 1 0.B.N.8.
188 ; 26 L. J. C. P. 78.

2
The memo-
randum
must he
signed by
the party
charged,

148 CHAP. [. FORMATION Of CONTRACTS.

defendant subsequently wrote a letter to the plaintiff contain-
ing a complete acknowledgment of the contract except that
it was silent as to the price ; it was held that the defendant
could not be charged upon this letter with the contract as
made, because the letter imported a sale at a reasonable
price and not at the shipping price ; also that the defendant
could not be charged upon the letter with a contract of sale
at a reasonable price, because he might show by parol evi-
dence that the contract in fact made was for a sale at the
shipping price (a).

At a sale by auction upon certain conditions a note of
the contract was made by writing the price and the pur-
chaser’s name in the catalogue opposite the lot purchased by
him ; the conditions were not annexed to the catalogue or re-
ferred to therein; it was held that the note was not suffi-
cient as it did not contain the contract actually made (4).
So, where a sale of goods was made with a stipulation as to
their condition, the broker’s sale-note omitting the condi-
tion was heid not to be a sufficient memorandum of the
contract (c).

The name of the party inserted in any part of the writing,
in amanner to authenticate it, is a sufficient signing to sa-
tisfy the statute (d). Thus, the forms “ Mr. A. presents his
compliments, etc.” (e); “Mr. A. has agreed with, etc.’ (/),
have been held sufficient. The subscription to a letter
“your affectionate mother,” without signature of the name,
was held not sufficient (g). A memorandum of a contract
of sale written by the defendant in a book of his own in the
form, “Sold J. D.” (the defendant’s name) etc., was held
to be sufficiently signed by him, though his name did not
appear elsewhere in the memorandum (A); so, a bill of par-
cels delivered by the defendant to a buyer of goods, in

(a) Acebal v. Levy, 10 Bing. 376. 1 Cox, 219.
(b) Kenworthy v. Schofield, 2 B. (e) Ogilvie v. Foljambe, 8 Mer. 53.
& C. 945. (f) Propert v. Parker, 1 R. & M.
(c) Pitts v. Becketl,13 M. & W.743. 625; Bleakley v. Smith, 11 Sim. 150.
(d) Johnson v. Dodgson, 2 M. & (g) Selby v. Selby, 3 Mer. 2.
W. 653, 659; Hubert vy. Treherne, (2) Johnson vy. Dodgson, 2 M. &
3 M. & G. 743; and see Lobb v. W. 653; and see Durrell y. Evans,
Stanley, 5Q.B.574; Stokes vy. Moore, 1H. & C.174; 311. J. Ex. 337.
SECT. v. § 2. FORMS REQUIRED BY THY STALUTE OF rRaups. 149

which the defendant’s name was printed at the commence-
ment as the seller (a).

Articles of agreement were formally drawn up, containing
the names of the several contracting parties in the commence-
ment, and concluding “as witness our bands,” but no sig-
natures were appended ; it was held not sufficiently signed
within the statute, because the form of the instrument
showed that it was intended that the names of the parties
should be subscribed, and that the insertion of the names
in the body of the instrument should not operate by way
of signature (b). The name of the party occurring in a
note of the agreement, drawn up as instructions to an at-
torney to prepare a lease, was held not to be a signature
within the statute (c).

The defendant previously to the marriage of the plaintifi’
with her daughter had verbally agreed to give her a mar-
riage portion of £1000, and articles were executed settling
the £1000; the defendant was not a party to the articles,
but signed them as a witness, knowing their contents; the
signature was held sufficient to satisfy the statute (d).

The initials of the name of a party used for the purpose
of authenticating the memorandum are a sufficient signing ;
as where an auctioneer wrote in the catalogue the imitials
of the name of a purchaser against the lot purchased by
him (e). Signing with a mark is sufficient (jf). The sig-
nature may be printed (g). A signature in pencil of a me-
morandum written in ink would be sufficient, unless it ap-
peared that the pencil marks were made for the purpose of
deliberating upon the points marked, and not of finally au-
thenticating the document (i).

A deed is valid if duly sealed and delivered, and does not

(a) Saunderson v. Jackson,2B.& 9 Ves. 234, 250.
P. 238; Schneider v. Norris, 2M. & (e) Phillimore v. Barry, 1 Camp.

8. 286. 513. ; :
(b) Hubert v. Treherne, 3M. & G. (f) Schneider v. Norris, 2M. & 8.
743. 286, 289; Baker v. Dening, 8 A. &

(c) Stokes v. Moore, 1 Cox, 219. EB. 94; and see Harrison v. Elvin,
(d) Welford v. Beazely, 3 Atk. 3Q.B. 117.

503; cited by Kindersley, V.C., (g) Schneider v. Norris, 2M. & 8.
Barkworth vy. Young, 4 Drew.1,14; 286.
26 L. J. C. 153, 158; and see per (h) Lucas v. James, 7 Hare, 410,

Lord Eldon, Coles y. Trecothick, 419.
The memo-
randum
need not be
signed by
the party
charging
the con-
tract.

Signature
by agent.

150 CHAP. I. FORMATION OF CONTRACTS.

require to be signed by the party to be charged under the
Statute of Frauds, although it relates to a matter within the
statute (a).

It is sufficient under the statute that the note or me-
morandum of the agreement in writing be signed by the
party to be charged therewith, and it is not necessary
that the agreement or consent of the other party to the
writing should be proved by writing or signature; hence a
plaintiff may be able to charge the defendant upon a con-
tract, wpon which the defendant would fail to charge the
plaintiff in an action for want of a note or memorandum in
writing signed by him (4). But if a party to a contract
signs a document in a manner sufficient to bind himself,
but upon the condition that he is not to be bound unless
the other party also signs it, there is no valid contract until
it is signed by both parties (c).

Specific performance will be decreed in equity in favour
of a party who has not signed a written memorandum of
the contract against a party who has signed; but in equity
the former by filing his bill submits to the jurisdiction of
the Court, and is compelled to perform the contract on his
part im order to entitle him to specific performance from the
other (7). And in an action at law, it is necessary for the
plaintiff to show the performance on his part of all such
parts of the contract as constitute conditions precedent to
the liability of the defendant (e).

The memorandum may be signed by an agent of the
party thereunto by him lawfully authorized. The authority
of an agent to sign for his principal under the 4th and 17th
sections of the statute may be conferred without writing (f).

(a) See ante, p. 77 n. (a).

(b) Egerton v. Mathews, 6 Fast,
307; Laythoarp vy. Bryant, 2 Bing.
N. C. 735; Sweel v. Lee, 83M. & G.
452, 462 (a) ; Smith v. Neale, 20. B.
N.S. 67; 26 L. J.C. P.148; Warner
v. Willinglon, 3 Drew. 523; Liver-
pool Borough Bank v. Heeles, 4 A. &
N. 139; 28 L. J. Ex, 122; Reuss v.
Picksley, L, R. 1 Ex. 312.

(©) Sev ante, p. 109.

(d) Martin v. Mitchell, 23. &W.
413, 426; Boys \. -fyerst, 6 Madd.
316, 324; and see Warner y. Wil-
lington, 3 Drew. 523, 532.

(c) See post, Chap. III, Sect. IT.

(f) Emmerson v. Heelis, 2 Taunt.
38, 46; per Tindal, C.J., Acebal vy.
Levy, 10 Bing. 376, 378. he first
and third sections of the statute, re-
lating to the creation of estates and
interests in land, expressly require
SECT. V. § 2. FORMS REQUIRED BY THE STATUTE oF rRaups. 15]

A broker employed by both buyer and seller is the agent
of both parties to sign a contract made within the scope of
his employment (a). The defendant, having bought goods
from the agent of the seller, requested him to write a note
of the contract in his, the buyer’s book, which the agent
did, and signed it with his own name; it was held that
there was no evidence that the defendant authorized the
agent to sign for him, and that he was not bound by the
signature (b). Upon a sale of goods by the factor of the
plaintiff to the defendant, the factor drew up a note of the
sale in which he entered the name of the defendant as pur-
chaser, and delivered it to the defendant, who requested an
alteration to be made in it, which was done, and then ac-
cepted it ; it was held that there was evidence of an autho-
rity in the factor to write the defendant’s name (c).

An auctioneer is presumptively the agent for both the
seller and the purchaser for the purpose of signing a memo-
randum of a sale by auction (¢) ; but only during the auction,
so that the authority was held not to extend to signing a
contract for some unsold lots sold by the auctioneer to the
defendant by private contract after the auction was over (e).
An auctioneer’s clerk who is employed to write down the
names of the purchasers is considered as authorized by
them to do so(f). The owner of goods, put up to auction,
having made a private agreement with the bidder as to the
terms on which he might pay the purchase-money, it was
held that the auctioneer was not authorized by the bidder
to bind him to the published conditions of sale as to the
mode of payment (9).

A solicitor employed to write down the terms of an agree-
ment, as instructions for preparing a formal document, was

the authority of the agent to sign the (d) Walker vy. Constable, 1B. & P.
writing within those sections to be 806; Kenworthy v. Schofield, 2 B. &
conferred in writing. C. 945, 947; Emmerson v. Heelis,

(a) Goomy. Aflalo,6 B. & C.117; 2 Taunt. 38; White v. Proctor,
Pitts v. Beckett, 13 M. & W. 743; 4 Taunt, 209; Hinde v. Whitehouse,
Sievewright v. Archibald,7 Q. B. 103. 7 East, 558.

(b) Graham v. Musson, 5 Bing. (e) Mews v. Carr, 1 H. & N. 484
N. C. 603. 26 L. J. Ix. 39.

(c) Durrell v. Evans, 6H. & N. Cf) Bird v. Boulter, 4B. & Ad. 443.
660; 1 AH. & C. 174; 30 L. J. Ex. (9g) Bartlett v. Purnell, 4A. & E.
254; 31 ib. 337. 792.
Signature
by agent.

152 CHAP. I. FORMATION OF CONTRACTS.

held not to be thereby constituted the agent of the parties
to bind them by his signature of their names in the docu-
ment (a).

One of the contracting parties cannot act as agent of the

other contracting party to sign the contract for him (0).
So, where the auctioneer himself sues as principal party to
the contract for the price of the goods sold, which in ge-
neral he may do, he cannot avail himself of his authority,
as auctioneer, to sign the purchaser’s name to the contract
of sale, in order to charge the purchaser on the contract
with himself (c). But the auctioneer’s clerk, employed at the
auction in writing down the purchasers’ names, may be
agent for the purchaser so as to charge him by his signa-
ture in an action brought upon the contract by the auc-
tioneer (d).
» Where an agent professes to sign for a principal, but
without authority, a subsequent ratification of the signature
by the principal is equivalent to a previous authority (¢).
Upon a sale by auction a memorandum of the contract was
drawn up and signed by the purchaser, and also by the
auctioneer’s clerk expressly “as witness ;”’ it was held that
this signature by the clerk, excluding the character of agent,
was not sufficient to charge the vendor, and could not be
supported by a subsequent recognition (/f).

If the agent is duly authorized, the signature of his own
name will bind the principal (4).

The authority of the agent to sign may be countermanded
at any time before the signing iscompleted. The defendant
having authorized a broker to sell goods for him and the
broker having sold them to the plaintiff, before the sale note
was made out the defendant countermanded the authority of
the broker ; it was held that the contract could not be en-

(a) Larl of Glengal vy. Barnard, (e) Maclean v. Dunn, 4 Bing. 722;
1 Keen, 769. Filzmaurice v. Bayley, 8 E. & B.
(6) Wright v. Dunnah, 2 Camp. 661; 26 L. J. Q. B. 115; 27 %. 143.
208; Farebrother v. Simmonds, 5 B. (f) Gosbell v. Archer, 2A. & FE.

& Ald. 333, 335. “This is very 500.
doubtful law.” Blackburn’s Contract (g) Whitey. Proctor, 4 Taunt. 209;

of Sale, p. 76. Kenworthy v. Schofield, 2 B.&C. 945;
(c) Farebrother v. Simmons,5 B. and sce Graham v. Musson, 5 Bing.
& Ald. 333. N.C. 603.

(7) Birdy, Boulter, 4B. & Ad, 418.
SECT. v. § 2. FORMS REQUIRED BY THE STArurE or Fraups. 153
forced (a). Ata sale by auction, after a lot has been knocked
down to a purchaser he may countermand the auctioneer’s
authority to sign the contract for him (b).

The 17th section excepts from its operation the cases Aceeptanea
in which “the buyer shall accept part of the goods so sold ite
and actually receive the same,” so that upon an acceptance under 17th
and receipt of goods being established, the contract of psn
sale under which they were received is not affected by the
statute. The defendant having accepted and received cer-
tain goods above the value of £10, it was held that the plain-
tiff might prove by parol evidence a contract of sale to the
defendant for ready money ; although the defendant asserted
that he accepted and held the goods by agreement as security
for a previous debt (c). The acceptance and receipt of the
goods sold, like the memorandum in writing, must take place
before an action is brought, in order to obviate the effect of
the statute upon the contract in that action (d).

In order to constitute an acceptance and receipt within
the statute there must be a delivery of the goods by the
vendor, with an intention of vesting the right of possession
in the vendee ; and there must be an actual acceptance by
the latter, with an intention of taking to the possession as
owner (e). Such delivery and acceptance are matters of fact to
be found by the jury (f). At asale of goods by auction upon
the conditions that the buyer was to pay 30 per cent. of the
price upon being declared the highest bidder, and the resi-
due before the goods were removed, a lot was knocked down
to the defendant and handed to him immediately without
any payment, and the defendant shortly after returned it,
alleging that he was mistaken in the price at which it was
knocked down to him; it was held to be a question for the
jury whether there had been a delivery by the seller and an
acceptance by the buyer with an intent to transfer the right

(a) Farmer v. Robinson, 2 Camp.
339, note; and see Warwick v. Slade,

3 Camp. 127.

(b) See Jonesv. Nanney,1M‘Clel. 25.
(ce) Tomkinson v. Staight, 17 C. B.

697; 25 L. J.C. P. 85.

(d) Billy. Bament,9 M, & W. 36,

40; ante, p.143.

(e) Phillips v. Bistolli, 2 B. & C.
511 ; Maberley v. Sheppard, 10 Bing.
99, 102.

(f) 16.; Edanv. Dudfield,1 Q. B.
302, 307 ; Lillywhite vy. Devereux, 15
M. & W. 288, 291.
Acceptance
ofthe goods.

154 CHAP. I, FORMATION OF CONTRACTS.

of possession (a). Upon a sale of goods, then being in the
seller’s warehouse, the buyer took away a portion, but imme-
diately sent it back stating that the goods were of inferior
quality ; it was held that there was evidence for the jury of
an acceptance and receipt within the statute ().

Upon a sale of unascertained goods by description and
quantity it was formerly held that the statute intended such
an acceptance as amounted to an acknowledgment by the
buyer of a performance of the contract by the seller as to
the goods delivered, and precluded him from afterwards
objecting to the quantity and quality of the goods (c). But
according to more recent decisions there may be an accept-
ance and receipt of goods by a buyer within the Statute of
Frauds, although he has done nothing to preclude himself
from objecting that they do not correspond with the con-
tract (d). So, there may be an acceptance of the gcods
sufficient to satisfy the statute, though not sufficient to pre-
clude the buyer from suing the seller for non-delivery (e) ;
or tv enable the seller to sue the buyer in an action for
goods sold and delivered (f). Upon a sale of goods by
sample the seller delivered the goods to a carrier named by
the buyer, and the buyer resold the goods by the same sample
and directed the carrier to convey them to the sub-pur-
chaser, who rejected them as not according with the sample;
it was held that there was sufficient evidence of an accept-
ance within the statute to admit parol evidence of the con-
tract, though the buyer nught still object that the goods
delivered did not agree with the sample (g). So, where
goods were delivered on board a ship to the order of the
defendant, who received the bill of lading and dealt with it
as owner of the goods, ib was held that there was evidence

(a) Phillips vy, Bistolli,2 B. & C. Crompton, J., Currie v. Anderson,
511. 2 H.& E, 592, 600; 29 L. J. Q. B.
(b) Kershaw v. Ogden, 3 11. & C. 87, 90.

717; 34 L. J. Ex. 159. (e) Anderson y. Scot, 1 Camp. 235,
(e) Hanson v. Armitage, 5 B. & note.
Ald. 557, 558; Sinith +. Surman, 9 (f) Per Patteson, J., Curtis y. Pugh,
B. & U. 561, 577, (a). 10 Q. B. 111, 114.
(d) Morton v. Tibbett, 15 Q. B. 428; (9) Morton v. Tibbett, 15 Q. B. 428.

Parker vy, Wallis, 5 BE. & B. 21; per
SECT. V. § 2, FORMS REQUIRED BY THE STATUTE OF FRAUDS. 155

of an acceptance within the statute (a). The buyer under a
contract for the sale of goods of a certain description having
received the goods delivered into his warehouse, unpacked
the whole, and considering it inferior to the description re-
packed it and returned it; it was held that such dealing
with the goods, not being with the intention of taking pos-
session, did not alone constitute an acceptance (b).

The acceptance of the goods may be made while they
remain in the possession of the seller and before the actual
delivery and receipt, which however are also necessary to
satisfy the statute (c). Thus, where the buyer selected the
specific goods to be delivered under the contract, and they
were afterwards delivered to a carrier appointed by the
buyer to receive them, it was held that there was an accept-
ance within the statute before the delivery (d).

A carrier appointed by the buyer to receive the goods
from the seller and carry them, or a warehouseman or
wharfinger appointed by the buyer to receive the goods, is
not in general authorized to accept them within the statute ;
so that upon a sale of unascertained goods a delivery by the
seller to the carrier, or wharfinger, or warehouseman, ap-
pointed by the buyer does not alone, without any act of
acceptance by the buyer, satisfy the statute (e). A delivery
of such goods to a railway company to be forwarded to a
station specified by the buyer, which are duly forwarded and
lie at the orders of the buyer, does not alone satisfy the
statute (f). The delivery and receipt of such goods on
board a ship chartered by the buyer for the purpose of carry-
ing them is not an acceptance by him (g); but the buyer
may receive and so deal with the bill of lading as to be
equivalent to an acceptance of the goods (h).

(a) Currie v. Anderson, 2 EB. & E.
592; 29 L. J. Q. B. 87; and see
Meredith v. Meigh, 2 EH. & B. 364.

(b) Curtis v. Pugh, 10 Q. B. 111.

(ce) Cusack v. Robinson, 1 B. & 8.
299; 30 L. J. Q. B. 261.

(d) Ib.; and see Saunders v. Topp,
4 Ex. 390.

(e) Hanson v. Armitage, 5 B. &
Ald. 557; Johnson v. Dodgson, 2 M.
& W. 653; Hunt v. Hecht,& Ex. 814,
Meredith v. Meigh, 2 KH. & B. 364;
overruling Hart vy. Sattley, 3 Camp.

528; Hart v. Bush, E. B. & EH. 494

27 L. J. Q. B. 271.

(f) Norman v. Phillips, 14 M. &
W.277; Smith v. Hudson, 34 L. J.
Q. B.145 ; and see Coombs v. Bristol
and Exeter Ry. Co.,3 H. & N. 510
27 1, J. Ex. 401; Nicholsonv. Bower,
1E. & E.172; 28 L. J. Q. B. 97.

(g) Acebal v. Levy, 10 Bing. 376.

(h) Currie vy. Anderson, 2 EH. & E.
592; 29 L. J. Q. B. 87; and see
Meredith y. Meigh, 2 E.& B. 364.
Delivery
and receipt
of the
goods.

Construc-
tive deli-
very and
receipt.

Where the
goods are
in the pos-
session of
the buyer
at the time
of the sale.

156 CHAP. I. FORMATION OF CONTRACTS.

If the buyer retains the goods for an unreasonable time
after delivery without communicating to the seller his inten-
tion to refuse them, it is evidence of his acceptance of the
goods (a). Thus, where the goods were delivered at a ware-
house by the order of the buyer, who saw them there and
told the warehouseman that he would not take them, but
made no communication of his refusal to the seller until the
end of five months, it was held that there was evidence
proper for a jury to consider of an acceptance (b).

The receipt of the goods imports a delivery of possession
to the buyer ; there is no change of possession or receipt of
the goods within the statute while the seller retains his lien
for the price (c). The plaintiff sold goods to the defendant
which were accepted by the defendant and removed to his
warehouse, but by a term of the contract of sale they were
not to be removed from thence until paid for ; it was held that
the seller retained no lien on the goods, but had merely the
personal contract of the buyer not to remove them, and
therefore the receipt was complete within the statute (d).

There may be a constructive delivery and receipt of the
goods without any actual change of possession, by a mere
transfer of the right to which the possession is referred.

‘Where the possession is already in the buyer, the delivery
may be effected by a transfer of the right of possession to the
buyer, as owner. Goods of the plaintiff being in the hands of
the defendant for the purpose of being sold, it was agreed
between them that the defendant should buy them himself ;
he afterwards sold them to a third party ; it was held that
there was evidence within the statute of a receipt and accept-
ance of the goods by the defendant (c). The defendant being
in the occupation of a furnished house as tenant to the plain-
tiff, it was agreed between them that the plaintiff should sell
the furniture to the defendant ata valuation ; after the valua-

(a) Bushelv. Wheeler, 15 Q. B.  & Ald. 855; Maberley v. Sheppard,
442; Normany. Phillips, 14.M.& W. 10 Bing. 99, 101, Bill v. Bament, 9
277. M. & W. 36.

(b) Bushel v. Wheeler, supra. (d) Dodsley v. Varley, 12 A. & EB.

(ce) Tempest v. Fitzgerald, 3 B.& 682.

Ald. 680; Carter v. Toussaint, 5 B. (e) dan y. Dudficld, VQ. B. 302.
sucr. Vv. § 2. FORMS REQUIRED BY THE STATUTE OF FRAUDS. 157

tion was made the defendant refused to complete the pur-
chase, and gave the plaintiff notice to remove the furniture,
but he continued tenant of the house, and continued to hold
the furniture until he removed it toa broker’s and gave no-
tice to the plaintiff of the removal; the Court held that there
was no evidence of acceptance by the defendant, but said
‘that if it appears that the conduct of a defendant in deal-
ing with goods already in his possession is wholly inconsist-
ent with the supposition that his former possession continues
unchanged, he may properly be said to have accepted and ac-
tually received such goods under a contract so as to take the
case out of the operation of the Statute of Frauds, as for in-
stance if he sells or attempts to sell goods, or if he disposes
absolutely of the whole or any part of them, or attempts to
do so, or alters the nature of the property, or the like” («).
The plaintiff being in possession of goods of the defend-
ant under a contract of hiring, it was agreed without writing
that the plaintiff might purchase them if he pleased at the
termination of the hiring, but was not to take them till the
money was paid; at the expiration of the hiring the plain-
tiff tendered the price, but the defendant refused it and de-
nied the validity of the bargain, whereupon the plaintiff
claimed the goods and proceeded to take them as his own
under the sale ; it was held that there was no delivery and
receipt within the statute, because the assumption of posses-
sion by the plaintiff was wrongful and without the consent of
the defendant (b).
Where the goods remain in the actual possession of the Where the
seller, the delivery may take place by a transfer of the right 80487)
of possession to the buyer, and by the seller consenting to Poe
hold them as his agent. The defendant purchased some horses seller.
of the plaintiff, and requested the plaintiff to keep them for
him at livery, which the plaintiff acceded to and so kept
them for him; it was held that there was a delivery and
receipt sufficient to satisfy the statute (c). A complete bar-
gain having been made for the sale of a horse, the seller,
before delivering the horse, asked the buyer to lend him the

(a) ae y. Devereux, 15 M. 765.
W. 285. (ce) Elmore vy. Stone, 1 Taunt.
(2) Taylor vy. Wakefield, 6 E.&B. 458.
Where the
goods re-
main in the
possession
of the seller.

158 CHAP. I. FORMATION OF CONTRACTS.

horse for a journey, which the defendant assented to ; it was
held that there was a sufficient delivery and receipt, for that
after the sale the seller held possession of the horse as bor-
rower from the owner and not as himself the owner (a). Upon
a sale of a stack of hay standing on the seller’s premises, the
sale of part of it by the buyer to another and the taking
away of that part by him was held to amount to a delivery
and receipt (4). After a sale of a horse, then being in a
stable in: the possession of the seller, the buyer brought a
person to see it and offered to sell it him, but he declined on
the ground of an unsoundness which he discovered, where-
upon the buyer refused to complete his purchase ; it was held
that there was some evidence to go to a jury of a delivery
and receipt (c). The defendant bought a carriage in the shop
of the plaintiff and requested the plaintiff to keep it for him,
he making occasional use of it and returning it to the shop
of the plaintiff; it was held that there was a sufficient delivery
and receipt (d). The defendant ordered some casks of spirits
of the plaintiff, who was a spirit merchant and kept a bonded
warehouse for his own and other persons’ goods, the spirits
were to be kept in bond in the plaintiff’s warehouse until
wanted, the plaintiff sent the defendant an invoice specify-
ing the casks sold and entered the casks in their books as
the defendant’s, and the defendant afterwards asked the
plaintiff to take back the goods or to resell them for him ;
it was held that there was evidence of a delivery and receipt
by the conversion of the possession of the plaintiff as owner
into a possession as agent for the buyer (e).

On the other hand it has been held that there was no evi-
dence of such constructive delivery and receipt in the follow-
ing cases :—The plaintiff contracted with the defendant to
build him a waggon, and while the waggon was in progress
the defendant employed a workman upon it to fix on the
ironwork and a tilt (f):—The defendant purchased several

(a) Marvin v. Wallace, 6 E. & B. (e) Castle v. Sworder, 6 H. & N.

726; 25 L. J. Q. B. 369. 828; 30 L. J. Ex. 310, reversing S.
(b) Chaplin v. Rogers,1 East, 192. C. in Exchequer 5 H. & N. 281; 29 L.
(c) Blenkinsop v. Clayton,7 Taunt. J. Ex. 235.

597. (f) Maberley v. Sheppard, 10 Bing.
(d) Beaumont v. Brengeri,5 C.B. 99.

301.
SHCT. V. § 2. FORMS REQUIRED BY THE STATUTE Or FRAUDS. 159

articles at a tradesman’s shop, some of which he marked with
a pencil, others were measured and cut off larger bulks in
his presence; the goods were afterwards sent to his house
but he refused to accept them (#) :—Upon a contract of sale
of twelve bushels of tares, being part of a larger bulky the
buyer requested they might remain in the seller’s possession
until wanted for sowing; the seller measured out twelve
bushels and set them apart with orders that they should be
delivered to the purchaser when called for (b). There can be
no delivery and receipt within the statute so long as the seller
retains the actual possession of the goods sold with a right
of lien for the price (c).

Where the goods at the time of the sale are in the posses- Where the
sion of an agent of the seller, the delivery may be effected a he
by a transfer of the right of possession to the buyer, and by ae ok
the agent continuing to hold them as his agent; for which
purpose the assent of the agent is necessary. The plaintiff
sold to the defendant a hogshead of wine then lying in the
London Docks, and gave him a delivery order; it was held
that this was not sufficient to satisfy the statute, and that
there could not be any actual receipt of the wine by the
vendee until the dock company accepted the order for de-
livery, and assented to hold the wine as the agents of the
vendee (d). And where the buyer accepts a delivery order
for the goods and keeps it for an unreasonable length of
time, it will not alone effect a delivery and receipt of the
goods, although the retaining of the order may be evidence
of an acceptance (e).

By the terms of the statute acceptance and receipt of part Acceptance
of the goods sold is sufficient to except the contract of sale cao
from its operation. The acceptance and receipt of a sample the goods

is sufficient part acceptance, if the sample forms part of

(a) Baldey v. Parker, 2B.& C.37;  & Ald. 855; ante, p.156.

and see Hodgson v. Le Bret, 1 Camp. (d) Bentall y. Burn, 3 B. & C. 423 ;
233; Elliott v. Thomas,3 M.& W. and see Bill vy. Bament, 9 M. & W.
170, 177. 35; Farina vy. Horne, 16 M. & W.

(6) Howe v. Palmer, 3 B.& Ald. 119.
21. (e) Farina vy. Home, 16 M. & W.
(c) Tempest v. Fitzgerald, 3B.& 119; and see ante, p. 156.
Ald. 680; Carter v. Toussaint, 5 B.
Acceptance
and receipt
of part of

the goods
sold.

Giving
something

160 CHAP. I, FORMATION OF CONTRACTS.

the goods sold (a) ; but not, if the sample is not part of the
goods sold (b). Taking a sample out of the goods delivered
for the purpose of examining the quality with a view to
acceptance, does not alone operate as an acceptance, and the
buyer may afterwards repudiate the contract (c).

Where an order is given for several kinds of goods, or
a purchase is made of several parcels of goods in a manner
constituting one contract, the acceptance and receipt of
one kind, or of one parcel of the goods, is sufficient to take
the whole contract out of the operation of the statute (d).
An order was given for goods, some of which were ready
made and the rest were to be manufactured, and the
former goods were delivered and paid for; it was held
that there was one contract for all the goods, and that the
requirements of the statute respecting it were satisfied by
the acceptance and receipt of the goods delivered (e). The
defendant gave an order to the plaintiff’s traveller for goods
of a certain kind, and at the same time made an offer to take
other goods, which offer was then referred to the plaintiff;
the plaintiff sent all the goods, and the defendant kept those
of the former kind but refused the latter ; it was held that
there were two separate contracts, and that the acceptance
of the one kind of goods did not except the contract for the
other kind from the operation of the statute (f).

By a verbal contract plaintiff agreed to sell to the defend-
ant a mare for £20, subject to the condition that if it should
prove in foal defendant would on receiving £12 from plaintiff
return it on request ; it was held that there was one entire
contract, which was excepted from the operation of the statute
by the delivery of the mare, and that the plaintiff might sue
the defendant for refusing to return the mare on payment of
£12, without a note or memorandum in writing (q).

The 17th section also excepts from its operation the cases

(a) Hinde v. Whitehouse, 7 East, 1 Camp. 233; Biggs v. Whisking, 14
58.

5 C. B. 195; see ante, p. 140.

(6) Cooper v. Elston, 7 T. R. 14. (e) Scott v. Eastern Counties Ry.
(c) Nicholson v. Bower,1 El.& El. Co. 12 M. & W. 33.

172; 28 L. J. Q. B. 97. (f) Price v. Lea, 1 B. & C. 156.
(d) Liliolt v. Thomas, 3 M. & W. (yg) Williams y. Burgess, 10 A. &

170; overruling Hodgson v. Le Bret, . 499.
SECT. V. § 3. EFFECT OF THE STATUTE OF FRAUDS. 161

in which “the buyer shall give something in earnest to bind in earnest
the bargain or in part payment.’ A mode of striking fleemeehs
bargain, said to be customary in the north of England, by the

buyer drawing a shilling across the hand of the seller, was

held not to take the case out of the statute, as it did not
amount to payment of the shilling even for a moment (qa).

The plaintiff, being indebted to the defendant, verbally sold

to him goods by sample to an amount exceeding the debt,

and it was agreed as part of the bargain that the plaintiff’s

debt should go in part payment of the price of the goods;

the goods were sent, but the defendant refused to accept

them as being inferior to sample ; it was held that there was

no part payment within the statute, but only an agreement

for part payment contained in the contract itself ().

Cuap. I. Sucr. V. § 3. Errecr or tae Stature or Fravps.

Effect upon Contracts within its the Statute 0.0.0... eee 164
Operation vcs ccoseviceracerenses 161 | Upon Contracts after Execution

As to the Property in Goods in Whole and in Part....... 165
sold under such Contracts... 162 | Effect of Part Performance in

Upon Contracts partly within PEQUity,  gaecncaicciginmaiivneaetanidos 167

Tux operation of the statute is expressed in different words Effect of
in the two sections. By the 4th section it is enacted that eoairn

“no action shall be brought whereby to charge” a person eee
upon any contract of the kinds therein described ; by the tion.
17th section it is enacted that no contract of the kind therein
described “ shall be allowed to be good.”

Under either section the defendant in an action may deny
making the contract by pleading the general issue or a tra-
verse of the contract charged, and avail himself of the
defence that the contract comes within the operation of the

statute (c). A special plea in an action on a contract, that

(a) Blenkinsop v. Clayton,7 Taunt. 653; Lilliott v. Thomas, 3 M. & W.
Zs 170; Buttemere v. Hayes,5 M.&W.
(b) Walker v. Nussey,16 M.& W. 456; Eastwoody. Kenyon, 11 A. & E.

302. 438 ; Fricker v. Thomlinson, 1 M. &
(c) Johnson y. Dodgson,2M.&W. G. 772.

M
162 CHAP. J. FORMATION OF CONTRACTS.

Bie of the contract is one within the Statute of Frauds and does not
‘satisfy the formal conditions required to except it from the
operation of the statute, used to be held bad on special
demurrer before the Common Law Procedure Act, 1852,
15 & 16 Vict. c. 76, s. 51, whereby objections by special
demurrer were taken away (a). Such pleas, though now
admissible, are not necessary, the general issue, as above
stated, being sufficient to raise the defence of the statute.
If the defendant raises no issue upon the contract pleaded,
he is taken to admit it as charged, and has no further
opportunity of objecting that it is within the statute (0).

If no action can be brought upon a contract by reason of
the statute, the contract cannot be made available in a plea,
replication, or any other pleading (¢).

A contract purporting to give an interest in land within
the 4th section of the statute, as a contract for the purchase
of a growing crop of grass with liberty to go on to the land
for the purpose of cutting it, and of which there is no signed
note in writing, may operate as a license for the buyer to
enter upon the land, so as to render the entry lawful until
such license is revoked; but it cannot be made available by
way of contract to maintain an irrevocable license, or for any
other purpose (d).

The 4th section of the statute, enacting that “no action
shall be brought” upon any of the contracts therein de-
scribed unless there is a note or memorandum in writing as
therein required, is held to apply also to procedure ; and,
therefore, an action cannot be brought upon a foreign con-
tract which falls within the description in that section, with-
out the note or memorandum in writing, although it may
be valid according to the law of the place where it was

made (e).
Effect of A contract for the sale of goods coming within the opera-
the statute
(a) Leafy. Tuton, 10M. & W. 393; (d) Carrington v. Roots,2 M.& W.
Reade v. Lamb, 6 Ex. 130. 248; Crosby v. Wadsworth, 6 East,
(2) Per Alderson, B., Attorney- 602; and see ante, p. 134.
Gen. v. Sitwell, 1 You. & Coll. Ex. (e) Leroux v. Brown, 12 C. B. 801;
559, 577, 583. 22 L.J.C.P.1; and see Williams vy.
(c) Carrington v. Roots,2M.&W. Wheeler, 8 C. B. N.S. 299.
248.
SECT. V. § 3. EFFECT OF THE STATUTE orf FRAUDS. 163

tion of the 17th section is not effectual alone to pass oe Gide a
property in the goods to the buyer: thus, the buyer of goods sold.
goods under a contract which was not allowed to be good
by reason of the statute was held not to have an insurable
interest in the goods, and consequently not entitled to re-
cover upon a policy effected by him upon the goods (a).
And the buyer of goods under a contract within the opera-
tion of the statute was held not to be entitled to sue for a
conversion of the goods by a third party, although before he
began his action, but after the conversion was committed,
he obtained a memorandum in writing sufficient to take the
contract out of the operation of the statute (0).

Upon a sale of goods within the statute without a written
memorandum, the goods were delivered according to the
contract, when the buyer being in bankrupt circumstances
refused to accept them ; it was held that the property in the
goods never vested in him, and consequently his assignees
had no title to them against the seller (c). Under a similar
contract the goods having been delivered and lying at a
railway-station at the order of the buyer, the seller, in con-
sequence of the bankruptcy of the buyer, before any act of
acceptance of the goods by him, countermanded the deli-
very; it was held that the property never passed to the
buyer, and that his assignees had no claim to the goods (d).

Where goods are sold under a contract within the opera-
tion of the statute, and are delivered to a carrier named by
the buyer, as thereby no property vests in the buyer, he is
not competent to sue the carrier for loss of or injury to the
goods (e) ; im such case the carrier is liable to the consignor
only (f); and the consignee cannot acquire a right to sue
the carrier by making a part payment, or a part accept-
ance, or obtaining a memorandum in writing sufficient to

(a) Stockdale v. Dunlop, 6M. & and Yorkshire Ry. Co., L. R.1 C. P.
W. 224. 431.

(b) Felthouse v. Bindley, 11 C. B. (e) Coombs v. Bristol and Exeter
N. 8.869; 31 L. J.C. P. 204. Ry. Co., 3 H. & N.510; 27 L. J.
(ce) Nicholson v. Bower,1 El1.&E1. Ex. 401; see ante, p. 155.
172; 28L.J. Q. B. 97. (f) Ib.; and see Coatsv. Chaplin,

(d) Smith v. Hudson, 34L.3.Q. 3 Q. B. 483.
B. 145 ; and see Bolton v. Lancashire

M2
Contracts
partly with-
in the sta-
tute and
partly not.

164 CHAP. I. FORMATION OF CONTRACTS.

except the sale of the goods from the operation of the sta-
tute, after the happening of the loss or injury and the ac-
cruing of the cause of action (a).

Where a contract is, in respect of its matter, partly within
the statute and partly not within the statute, and does not
satisfy the conditions required to except it from the opera-
tion of the statute, it cannot be enforced as to that part
which is not within the statute (b). The plaintiff charged
the defendant upon a contract within the operation of the
4th section, that in consideration that the plaintiff would re-
lease a debtor, the defendant promised to pay the debt, and
also the expenses which the,plaintiff had incurred in seeking
to recover it; it was held that the contract was indivisible,
and that the plaintiff could not maintain an action to recover
the expenses without showing a memorandum in writing (c).
The plaintiff having taken the goods of his tenant as a dis-
tress for rent then due, the defendant promised the plaintiff,
in consideration of his abandoning the distress, to pay the
rent then due, and also the rent that would become due
at the Michaelmas following; it was held that the pro-
mise was entire, and the part as to the future rent being
within the 4th section of the statute, the plaintiff could not
maintain an action upon the contract to recover the past
rent without showing a proper memorandum (d). <A con-
tract, that in consideration that the plaintiff would hire of the
defendant a house and furniture, the defendant promised to
send in furniture into the house, was held to be inseparable ;
and as it was within the statute in respect of the house, the
plaintiff could not sue the defendant for a breach in not
sending in the furniture without a memorandum in wri-
ting (e). The plaintiff agreed to sell to the defendant a

(a) Morgan v. Sykes, citedin Coats Thomas y. Williams, 10 B. & C. 664;
vy. Chaplin, 3 Q. B. 483, 486; per and see Head v. Baldrey,6 A. & LB.
Pollock, C. B., Coombs y. Bristol and 459.

Exeter Ry. Co, 3 H. & N. 510, (ce) Chater v. Becket, 7'T. R. 201.
515; 27 L. J. Ex. 401, 402; per (d) Thomas y. Williams, 10 B. &
Willes, J., Batley v. Sweeting, 9C.B. —C. 664.

N.S. 843, 856. (e) Mechelen y. Wallace,7 A. &E.

(b) Lexington v. Clark, 2 Vent. 49.

223; Chater vy. Becket, ’7'T. R. 201;
shor. v. § 3. EFFECT OF THE STATUTE OF FRAUDS. 165

mare and foal, and keep and feed them at his own ex-
pense until the following Michaelmas, and also to keep and
feed another mare and foal of the defendant for six weeks,
and the defendant agreed to take the mare and foal and pay
to the plaintiff the sum of £30; it was held to be one con-
tract, and as it appeared that the value of the mare and foal
was above £10, the contract was within the statute (7).

The defendant, being about to take possession of a farm
of which the plaintiff was the previous occupier, bargained
with him without writing for the sale of the crops, and also
of the dead stock, at distinct prices; it was held that the
plaimtiff might recover the price of the latter, notwithstand-
ing the contract for the crops might be for an interest in
land, as they were distinct contracts (b). The defendant
sold to the plaintiff the possession of a shop and slaughter-
house for £37, and it was agreed that in case a license to
use the slaughter-house should be refused, the defendant
would repay to the plaintiff £10; the plaintiff having taken
possession and paid the price, the license was refused, and
he sued the defendant for the £10; it was held that be
might maintain the action without a written memorandum,
because there were substantially two contracts, and the one
sued on was not within the statute (c).

The execution of the contract, so far as the matter of it is Effect of
within the statute, does not take the contract out of the ope- se.
ration of the statute, so as to admit of an action upon it in ae
respect of the part remaining executory, although that part whole and
taken alone does not relate to a matter within the statute (d). la
The plaintiff agreed to give up the tenancy of a farm to the
defendant, in consideration of which the defendant promised
to pay the plaintiff £100 when he should become such tenant ;
the defendant having obtained the possession of the farm as
tenant, the plaintiff brought an action on the contract to

recover the £100; it was held that the plaintiff could not

(a) Harman v. Reeve, 18 C.B.587; 503, Crompton, J., dissentiente ; and
95 L. J. C. P. 257. see Hodgson v. Johnson, KE. B. & BE.
ae Mayfield v. Wadsley,3 B.&C. 685, 690; 28 L. J. Q. B. 88, 90.

(a) Cocking v. Ward, 1 0. B. 858 ;
et Green vy. Saddington,7E.&B. Teal v. Auty,2 B. & B. 99.
Effect of
the statute
after execu-
tion of the
contract.

166 CHAP. I. FORMATION OF CONTRACTS.

maintain the action without showing a memorandum of the
contract in writing (a).

But it seems that a plaintiff might in some cases recover
upon a contract implied from the execution of the conside-
ration, where he could not recover upon the original contract
by reason of the statute (0). The defendant being tenant
to the plaintiff, it was agreed without writing that, if the
plaintiff would consent to an assignment of the tenancy to
a third party, the defendant would pay to the plaintiff £40
out of the sum of £100 which the new tenant was to pay
him for the assignment; the assignment having been com-
pleted and the money paid to the defendant, it was held
that the plaintiff might recover his share as money received
to his use, although the original agreement as relating to
an interest in land came within the operation of the sta-
tute (c). The plaintiff let land to the defendant on the
terms of being paid a moiety of the crops instead of rent ;
it was afterwards agreed that the defendant should keep
the crops and pay the plaintiff the value of the moiety, and
the crops were appraised between them for the purpose of
ascertaining the amount ; it was held that the plaintiff might
recover this sum as the price of the moiety ofsthe crops
sold to the defendant, although the original agreement con-
cerning the land was not in writing (d).

Whatever is done in execution of a contract within the
operation of the statute is valid, although the contract may
be incapable of being enforced by reason of not satisfying
the requirements of the statute. Thus, a person, having
paid money under a contract within the statute which he
cannot enforce for want of a written memorandum, is not,
on that account, entitled to recover it back (e). An agent,
having paid money by authority of his principal in discharge
of a contract within the statute, which could not have been
enforced by action, may recover the amount from the prin-
cipal (f).

An agreement was made to discharge a debt by giving up

(a) Coeking v. Ward, 1 ©. B. 858. (d) Poulter vy. Killingbeck, 1 B. &
(b) Souch v. Strawbridge, 2C. B.  P. 397.
808, 814; Harman vy. Reeve, 18 C. B. (e) Sweet v. Lee, 3 M. & G. 452.
587, 598, 596; see ante, p. 36, 72. (f) Pawle vy. Guan, 4 Bing. N. C.
() Grifith vy. Young, 12 Kast, 5138. 445.
suct. v. § 3. EFFECT OF THE STATUTE OF FRAUDS. 167

possession of a public house and stock in trade to the cre-
ditor, and the agreement was executed by delivery up and
acceptance of the possession; it was held that, though the
agreement could not have been enforced for want of evidence
to satisfy the statute, it might be proved without writing for
the purpose of showing the discharge of the debt (a).

So, the effect of an account stated, admitting a debt and
raising an implied contract to pay it, cannot be obviated by
showing that the account was stated respecting a debt due
under a contract within the operation of the statute, if the
consideration of the debt has been completely executed (b) ;
but the effect of such an account stated may be obviated by
showing that it was stated respecting a debt under a contract
within the operation of the statute which was executory at
the time of stating the account (c).

In equity part performance of the contract in a material Effect of
particular takes the contract out of the operation of the sta- Part Pe
tute, upon the ground that it would effect a fraud, if after one equity.
party has performed an agreement on his side, the other party
should refuse performance of it under a plea of the sta-
tute (d).

A marriage taking place in pursuance of a parol agreement
made in consideration of marriage is held not to be a part
performance within the rule of equity (ec); a marriage set-
tlement made in pursuance of such agreement is such a part
performance (/).

Part performance by the party to be charged will not take
a case out of the operation of the statute within the rule of
equity (9).

There is no similar doctrine in law respecting part per-
formance of the contract (i); but the 17th section, relating

(a) Lavery v. Turley, 6 H. & N. (e) Lassence v. Tierney, 1 Mac. &
239; 80 L. J. Ex. 49. Gord. 551, 571; Caton v. Caton, 34

(b) Cocking v. Ward,1 C. B. 858; L. J.C. 564; 35 ib. 292; L. Rep. 1
Knowles v. Michel, 13 East, 249; Ch. Ap. 137.

Seago v. Deane, 4 Bing. 459 ; and see (f) De Biel v. Thompson, 3 Beav. i
ante, p. 72. 469.

(e) Earl Falmouth vy. Thomas, 1C. (y) Caton v. Caton, L. R.1 Ch. Ap.
& M. 89. 187; 35 L. J. C. 292.

(d) Story, Equity Jur. § 759, 760 ; (h) See Massey v. Johnson, 1 Ex.

Nunn v. Fabian, L.R.1 Ch. Ap. 35; = 241, 252.
35 L. J.C. 140.
Mistake.

Mistake of
one party
not known
to the
other.

168 CHAP. I. FORMATION OF CONTRACTS.
to contracts for the sale of goods above the value of ten
pounds, expressly excepts from its operation those cases in
which there has been a part acceptance of the goods sold,
or a part payment of the price (a).

Caap. I. Sucr. VI. § 1. Mistaxs.

Mistake! siciewusextay aravoiemonreas 168 | Of both Parties, in a Matter

Of one Party, not known to inducing the Agreement ... 176
thevother® ios cisccassstessavaves 168 | Of both Parties, as to the Ap-

Of one Party, known to the plication of the Agreement 178
OEY svivss cesnraarcavenarede sien 171 | Mistake as Matter for Plead-

Of both Parties, in expressing ings at Law upon equitable
the Agreement ..........00.4. 172 Grounds ssicicrovsuseeseeaaees 179

In contracts founded on agreement, whether simple con-
tracts or contracts under seal, the agreement, apparently
complete and sufficient to establish the contract, may be
vitiated by causes influencing the agreement, which under
certain conditions may render it void of legal effect. The
causes which may thus qualify the legal effect of an appa-
rently valid agreement are mistake, fraud, and duress.

Mistake is occasioned by the ignorance or misconception
of some matter, by reason of which the agreement appa-
rently made is not the agreement intended to be made, or is
one which would not have been made but for the mistake ;
and the question arises as to the effect of such mistake upon
the operation of the agreement in creating a contract.

The mistake may be that of one party only ; or there may
be a mistake of both parties respecting the same matter
and thus there arise two different conditions of the ques-
tion, which are governed by considerations of a different
character.

The mistake of one party only is attended with different
consequences accordingly as the other party is, or is not, cog-
nisant of the mistake.

The law judges of an agreement between two persons ex-

(a) See ante, p. 159, 160.
scr, vi. § 1. MISTAKE. 169

clusively from those expressions of their intention which are
communicated between them () ; consequently, an agreement
cannot be affected by the mistake of either party in express-
ing his intention or in his motives, of which the other party
has no knowledge, and the party who’has entered into an
agreement under such mistake is bound by the agreement
actually made, and cannot assert his mistake in avoidance of
the agreement.

The defendant sold to the plaintiff a hundred chests of tea
out of a specific cargo, to be equal to a sample shown at the
time of the sale, which the defendant then believed to be a
sample of the cargo, but which was not in fact a sample of
that cargo, but of a different tea; it was held that the de-
fendant had not the right of avoiding the contract by giving
notice to the plaintiff of the mistake respecting the sample ;
and in an action for not delivering the tea, a plea on equita-
ble grounds to the effect that he had given notice of the mis-
take and of his intention to treat the contract as void on
account of the mistake, was held a bad plea (0).

Atasale by auction a lot was knocked down to the de-
fendant at the price of eighty-eight guineas, and delivered to
him immediately ; shortly after receiving the articles, he
stated that he supposed the bidding had been forty-eight
guineas and refused to accept them ; it was held that he
might set up this mistake in order to show that his accept-
ance of the goods was not such an acceptance of the owner-
ship as was required by the Statute of Frauds in order to
charge him with the contract without a memorandum in
writing (c). In this case, it will be observed, the question
was whether parol evidence of the contract was admissible,
and not whether a mistake of one party only could be as-
serted for the purpose of escaping from a contract made by
him. If the contract could have been proved, the defendant,
it is submitted, would have been held bound by the bidding
which he had in fact made.

Upon this principle, in the case of a written agreement,
it is not competent for either of the parties to avoid its effect

(a) See ante, p. 8. (c) Phillips v. Bistolli, 2 B. & C.

(6) Scott v. Littledale, 8 E.& B. 511; ante, p. 153.
815; 27 L. J.Q. B. 201.
Mistake in
motive of

party.

Specific
perform-
ance
refused on
ground of
mistake.

170 CHAP. I, FORMATION OF CONTRACTS.

by merely showing that he understood the terms in a different
sense from that which they bear in their grammatical con-
struction and legal effect (a).

Where a party is mistaken in his motive for entering into
a contract, or in his expectations respecting it, such mistake
does not affect the validity of the contract. Ifa person pur-
chases a specific article, believing that it will answer a par-
ticular purpose to which he intends to put it, and it fails to
do so, he is not the less, on that account, bound to pay for
it (b). A person executed a deed in the belief that another
person would also execute it, but did not deliver it as an es-
crow conditional upon such execution, and was not betrayed
into executing it by any fraud or misrepresentation ; he was
held bound by the deed, although the person expected by
him to execute failed to do so (¢). A person being desirous
of becoming a freeholder of Hssex contracted to purchase a
house on the north side of the river Thames, which he sup-
posed to be in that county but which proved to be in Kent;
the contract was held binding, and he was compelled in
equity to complete the purchase (d).

A Court of Equity will in some cases refuse to grant a
plaintiff the peculiar remedy of specific performance of a
contract which the defendant has entered into under a mis-
take, although the plaintiff was not privy to the mistake or
implicated in its origin; but a Court of Equity will not
rectify or rescind a contract merely on the ground of a mis-
take of one of the parties in making it (e). Thus, specific
performance was refused in the following instances :—against
the purchaser of a lot at an auction, who had by mistake
bid for and bought a different lot than that which he had
intended (f) ; against a vendor who had reserved a bidding
for the protection of the estate, but his agent by mistake
omitted to bid, and the estate was knocked down at a

(a) See ante, p. 103; and see Hotson 678; 7 Ves. 270; but see 1 Bro. C. C.
y. Browne, 9 C. BLN. 8. 442; 30 L. 440 (2).
J.C, P. 106. (e) Alvanley v. Kinnaird, 2 Mac. &
() Chanter v. Hopkins,4.M.& W. G.1; Sells v. Sells, 1 Drew. & Sm.
399; Ollivant vy. Bayley, 5 Q. B. 288. 42; 29 L. J.C. 500; Swaisland vy.
(c) Cumberlege v. Lawson, 10. B.  Dearsley, 29 Beay. 430; 30 L. J. Cy
N.8. 709; 26 L. J.C. P. 120. 652.
(1) Shirley y, Davis, ciled 6 Ves. (f) Malins v. Freeman, 2 Keen, 25.
sect. vi. § 1. MisraKn. 171

smaller price than he intended (a); against a vendor, where
before the sale by auction the printed particulars and con-
ditions of sale had been altered in writing in a material
point, of which the purchaser was not aware, and the
auctioneer by mistake signed the contract on a copy of the
particulars which, had not been altered (b); against the
vendor of an estate who had contracted to sell under the
mistaken notion that he was the owner of the fee, but who
had only a limited estate (c); against a vendor who had
agreed by mistake to sell the whole of an estate, of which he
was entitled only to a part (d); against a landlord who had
agreed to let a farm, a particular portion of which he had
not intended to include in the lease (ec) ; against a landlord
who had signed an agreement for a lease in which he had
omitted by mistake to specify that he required a premium
of £500 for the lease {f).

Where the mistake of the one party is known to the other Mistake of
at the time of making the contract, the fact that the latter re
knows of the mistake may have an important effect upon the other
the validity of the contract.

If he has himself by misrepresentation caused the mistake
for the purpose of obtaining the contract, his conduct may
amount to fraud, which is the subject of separate considera-
tion (9).

If he knows of the mistake of the other party but is not
responsible for causing it, and m making the agreement is
merely silent respecting it, the question seems to depend
upon the nature of the mistake.

If the mistake is in the expression of the agreement, it
would seem that he could not hold the other party to an
expression of intention which he knew to be not in accord-
ance with his real intention, and, in equity at least, the agree-
ment would be held to be void (h).

(a) Mason v. Armitage, 13 Ves. 25. (e) Marquis Townshend vy. Stan-
(b) Manser v. Back, 6 Hare, 443; groom, 6 Ves. 328.
andsee Swaislandv. Dearsley, 29 Beav. (f) Wood v. Scarth, 2K. & J. 33.
430; 30 L. J. C. 652. (g) Post, Chap. I, Sect. VI, § 2.
(ce) Howell v. George, 1 Madd. 1; (h) See Garrardy. Frankel,30 Beav.

and see Hood v. Olander, 34 Beav. 4145; 31 L. J. C. 604; cited post,
518, 519; 34 L. J. C. 528, 529. p. 176.
(d) Wheatley v. Slade, 4 Sim. 126.
Mistake
common to
both parties

Mistake of
both parties
in express-
ing the

agreement.

172 CHAP, I. FORMATION OF CONTRACTS.

If the mistake is not in the agreement itself, but in some
fact materially inducing the agreement, the question seems
to depend upon the nature of the contract. In contracts
relating to certain matters the one party is bound to inform
the other party of all he knows concerning the matter of the
contract so as to prevent all mistake or misapprehension in
the latter party ; thus, in contracts of insurance it is a con-
dition of the contract that the insured should inform the
insurer of every circumstance material to the risk insured
against, and the concealment by the insured of any such
circumstance, however innocent, avoids the contract (a).
But unless the nature of the contract imports such a con-
dition, the mere knowledge in the one party of a mistake in
the other party, without frand, seems, in general, to con-
stitute no sufficient ground in law for avoiding their agree-
ment (0).

Both parties may be involved in a mistake respecting the
same matter. Such mistake may occur in the expression of
their agreement, or in some matter inducing their agree-
ment, or in some matter to which the agreement is to be
applied ; which cases require separate consideration.

A mistake may be made by both parties in expressing
their agreement, where the parties, having agreed upon cer-
tain terms, further agree to reduce those terms into writing,
and to be bound by the written document as containing the
terms of their agreement, but an error is made in reducing the
terms into writing, so that the writing agreed upon as conclu-
sive between them does not contain the agreement intended
to be made. The rule of law here applies that the agree-
ment in writing cannot be varied by external evidence ;
consequently, the parties are bound in law by the written
document which they have accepted as their agreement (c).

The plaintiff made a written agreement with the defend-
ant to do work for him in certain houses “in South Street
and Southampton Street,” and brought an action upon the
agreement, stating it in the declaration according to its
terms ; under the plea of non assuimpsit it was held that the
plaintiff was entitled to the verdict on proof of the written

(a) See post, p. 199. (6) See post, p. 184. (c) See ante, p. 103.
SECT. VI. $1. MISTAKE. 173

agreement, and that evidence was not admissible on the part
of the defendant to show that the word ‘‘and”’ was inserted
by mistake, and that the agreement really intended to be
made was for work in houses “in South Street, Southampton
Street’ (a). A policy of insurance was made on the profits
of a cargo to be carried by a particular ship “ beginning the
adventure from the loading on board the ship;” the plain-
tiff was not permitted to vary the terms of the policy by a
correspondence, showing that the contract was intended to
include an insurance against the profits being lost by reason
of aloss of the ship during her voyage to the port of load-
ing, although the premium was at a higher rate than would
have been charged for an insurance not covering such
risk (b).

Where the mistake in a written agreement is so obvious
on the face of it as to leave no doubt of the intention of the
parties without the assistance of external evidence, the con-
tract is construed according to the obvious intention of the
parties. Accordingly, where it was manifest on the face of an
instrument that one name had been written by mistake for
another, the Court read the instrument with the mistake cor-
rected (c). So, where ina bond the condition was written
that it should be void if the obligor did “not” pay a sum of
money, the Court recognized the “ not” as inserted by mis-_
take, and read the bond without it («).

A bond stated that the obligor became bound in 7700,
without adding any denomination, but the condition showed
that the bond was given to secure the payment of certain
sums of money, reckoned in pounds sterling, in manner
therein mentioned ; the Court held that the intention suffi-
ciently appeared from the whole bond, that the obligor should
become bound in 7700 pounds sterling, and that the word
“pounds ” might be supplied (e). So the word “ month” ina
written agreement, which prima fucie means lunar month, has
been construed by the context as meaning calendar month (f).

(a) Hitchin v. Groom, 5 C. B. 515. (d) Case cited by Lord St. Leo-
(6) Halhead v. Young, 6 E.& B. ~ nards, 23 L. J. C. 697, 708.

312; 25 L. J. Q. B. 290. (e) Coles v. Hulme, 8 B. & C. 568.
(ce) Wilson v. Wilson, 23 L. J. C. (f) Lang v. Gale, 1 M.& 8.111;

697. R. v. Chawton, 1 Q. B. 247.
Rules of
Equity as
to agree-

174
A bill of exchange was headed with the figures £245 and

was drawn upon a stamp sufficient for that amount, but was
expressed in words in the body of the bill to be drawn for
two hundred pounds; it was held to be a bill for £200, and
evidence was not admitted to show that it was intended to
be for £245 and that the words ‘‘and forty-five” were
omitted by mistake (a). An agreement dated 24 October

CHAP. 1. FORMATION OF CONTRACTS.

referred to a bill of exchange “ payable at three months from

this date,” and it appeared there was a bill of exchange
dated 25 October and agreeing in all other respects with the
description of the bill referred to in the agreement; it was
held that the bill was sufficiently identified in the agree-
ment (bd).

Where the parties themselves subsequently alter the
agreement so as to make it conform with their original in-
tention, extrinsic evidence is admissible to explain the al-
teration and to show that the agreement as originally
framed did not accord with the real agreement (c).

The strict rule of lawis largely tempered by the doctrines
and practice of the Courts of Equity; for a Court of Equity

menis con- will not enforce a contract which has been drawn up by mis-

taining a
mistake.

take in terms not in conformity with the real agreement ot
the parties; and will in some cases reform or set aside the
mistaken agreement.

The defence that the contract sought to be enforced is not
in conformity with the real agreement, but has been drawn
up incorrectly by mistake, may be set up in answer to a bill
for specific performance (d). In such case, if the plaintiff
will not accept specific performance with the variation in the
agreement set up and proved by the defendant, his bill is
dismissed ; but if he is willig to adopt the variation, he
may havea decree (e) ; and specific performance of the agree-

(a) Saunderson v. Piper, 5 Bing.

N. C. 425.

(b) Way v. Hearne, 13 C. B.N. 8S.

292; 32 L. J.C. P.34.
(c) See post, Chap. IV, Sect. II,
“ Alteration of Written Instrument.”
(d) Joynes v. Statham, 3 Atk. 388;

Garrard v. Grinling, 2 Swanst. Zid;

Lord Gordon v. Marquis of Hertford,
2 Madd. 106.

(e) Clark v. Grant, 14 Ves. 519;
Ramsbottom v. Gosden, 1 V. & B. 165;
London and Birmingham Ry. Co. v.
Winter, Cr. & Ph. 57; Martin vy.
Pysroft 2DeG. M. & G@. 785; 22
L. J. C. 94,
SECT. v1. § 1. MISTAKE.

175

ment with the variations proved, may be decreed at the in-
stance of the defendant without a cross bill (a).

Upon sufficient proof of the mistake and of the agree-
ment really made, a Court of Hquity exercises a jurisdiction
to rectify the contract, and to enforce it in its corrected
state (b). In the exercise of this jurisdiction a Court of
Equity necessarily receives evidence of the real agreement
in variation of the terms of the written agreement (c).

“Tn the ordinary case of rectifying mistakes in an instru-
ment where it is sought to alter the instrument in any pre-
scribed or definite mode, the mistake must be the concurrent
mistake of all the parties. In such cases it is necessary to
prove not only that there has been a mistake in what has
been done, but also what was intended to be done, in order
that the instrument may be set right according to what was
really so intended; for in such a case, if the parties took
different views of what was intended, there would be no con-
tract between them which could be carried into effect by
rectifying the instrument” (d).

Where a document has been signed as an agreement in a
common mistake as to its contents, and it appears that no
real agreement was come to between the parties according
to which it might be rectified, the Court will set it aside (e).
An agreement for a lease was drawn up and signed stating
two different sums for the rent in different parts of the agree-
ment, the larger sum being that previously settled and in-
tended to be inserted ; afterwards the lease was drawn up
as agreed, but stated the smaller sum as the rent, and was
executed by the lessor in ignorance of the mistake, and by
the lessee with knowledge of it; it was held that the lease
could not be rectified against the lessee, because the agree-
ment for the lease contained contradictory statements, as to
the amount of the rent, but that the lessee should have an

(a) Fife v. Clayton, 13 Ves. 546.

(b) See Henkle v. Royal Eachange
Ass. Co., 1 Ves. Sen. 317; Baker v.
Paine, 1 Ves. Sen. 456; Motteur v.
London Ass. Co., 1 Atk. 545.

(c) Ball vy. Storie, 1 Sim. & Stu.
210, 219.

(d) Per Turner, L. J., Bentley v.

Mackay, 31 L. J. C. 697, 709; per
Romilly, M. R., Murray v. Parker,
19 Beav. 305, 308.

(e) Ib.; Calverley v. Williams, 1
Ves. Jun. 210; Price v. Ley, 32 L.
J. C. 580; Fowler v. Scottish Life
Ass. Co., 28 L. J. C. 225,
Mistake of
both parties
in matter
inducing
the agree-
ment.

176 CHAP. I. FORMATION OF CONTRACTS.

option to take a corrected lease, or to give up the one exe-
cuted, paying for the use and occupation of the premises up
to that time at the higher rent ().

Where the contract is within the Statute of Frauds, the
real agreement cannot, in general, be proved without satis-
fying the requirements of that statute (b) ; but it has been
held to be no objection to a claim for specific performance
of a written contract, that a provision was verbally agreed
to which was not inserted in the writing, if the plaintiff will
consent to the performance of the omitted term (c).

Where the agreement is induced by a mistake common to
both parties, without which mistake the agreement would not
have been made, the question arises whether the agreement
is made absolutely, or only conditionally upon and with re-
ference to the state of circumstances supposed by mistake,
so that upon the real state of circumstances the agreement
is moperative and void.

A contract was made for the sale of acargo, then supposed
to be on board a ship on its voyage, but which, unknown to
both parties, had ceased to exist at the time of the sale; it
was held that the contract imported the condition that the
cargo was in existence, and that, this not being the case, the
contract was void, and the vendor could not recover the price
from the purchaser (d). A contract of sale of an annuity
during the life of a person was held to be conditional upon
the annuitant being alive at the time of the sale ; so that, he
having previously died and the purchase money having been
paid in ignorance of that fact, it was held that the sale was
void, and that the purchaser was entitled to recover back his
money (e). A policy of insurance was renewed during the
days of grace allowed after the expiration of the policy by
the payment and acceptance of the premium, both parties
being ignorant that the life insured had previously died

(a) Garrard v. Frankel, 30 Beav. & G. 785; 22 L. J. C. 94; and see

445; 31 L. J. C. 604. Fry on Specific Performance, § 519-
(b) See Aédé. Gen, v. Sitwell, 1 You. 535.

& Coll. Ex. 559, 583; Rich v. Jackson, (d) Couturier vy. Hastie, 9 Ex. 102;

4 Bro. C. C. 514; 6 Ves. 334 (37); 5 H. L. C. 673; 25 L. J. Ex. 253,

Woollam vy. Hearn, 7 Ves. 211. (e) Strickland v. Turner, 7 Ex.
(ce) Martin v. Pycroft,2 De G.M. — 208.
sect. vi. § 1. MISTAKE. 177

during the days of grace; it was held that the renewal, being
conditional upon the insured being then alive, was void (a),
and that the insurer might recover back the premium as hay-
ing been paid under a mistake of fact (b).

An agreement was made for the sale of a remainder in
fee expectant on an estate tail, and an absolute bond was
given to secure the purchase money ; at the time of the sale
the tenant in tail had suffered a recovery and destroyed the
remainder, of which both parties were ignorant ; a Court of
Equity held the agreement void and cancelled the bond,
upon the ground that the parties had contracted upon the
supposition that a recovery had not then been suffered (c).
An agreement was made between the assignee of the tenant
for life of an estate and the person entitled in remainder
respecting the timber on the estate, under the supposition
that the tenant for life was then alive and entitled to cut the
timber, but in fact he was then dead; it was held that the
agreement was void both in equity and at law (d).

The plaintiff contracted with the defendant for the pur-
chase of an estate, which was supposed by both the parties,
and was described in the agreement to contain 21,750 acres,
but in fact contained only 11,814; it was held that the
contract could not be enforced on either side (e). So, where
a contract was made for the sale of a manor described as
embracing a particular parish, and supposed by both parties
to do so, and it was subsequently discovered that it included
waste lands beyond the parish which neither party contem-
plated to be within the subject of the purchase, the Court
held that the contract could not be enforced in a manner to
include those lands (7). So, an agreement for the sale of
shares in a company, made in ignorance that a petition for
winding up the company had been presented, was held not
to be enforceable, so as to make the purchaser a contribu-

tory (q).

(a) Pritchard v. Merchants Life
Insurance Soc. 3 C. B. N. 8. 622; 27
L. J. C. P. 169.

(b) Per Byles, J., 2d.

(c) Hitehe ck v. Giddings, 4 Price,
135.

(d) Cochrane v. Willis, 35 Li. J. C.
36; L. R.1 Ch. Ap. 58.

(e) Earl of Durham v. Legard, 34
L. J. C. 589; and see Price v. North,
2 You. & Col. Ex. 620; Davis v.
Shepherd, L. R. 1 Ch. Ap. 410.

(f) Baxendale v. Seale, 19 Beav.
601.
(g) Emmerson’s case, L. R. 1 Ch.
Ap. 433.

N
178 CHAP. I!. FORMATION OF CONTRACTS.

But the contract may be unconditional, although the
parties are under a mistake respecting some matter which
induces the contract. Thus, the defendant by deed sold and
assigned a ship to the plaintiff, and covenanted that he then
had power to sell the ship ; the plaintiff sued the defendant
for a breach of this covenant, and it appeared that the ship
was a wreck at the time of the sale, of which both parties
were ignorant; the Court held that the contract was absolute,
and if the ship had ceased to exist as a ship at the time of
the sale the covenant was broken, but if it then still existed
as a ship, however damaged, there was no breach, as the
covenant imported no obligation with respect to the condi-
tion of the ship (a).

Upon the sale of a specific lease of premises which both
parties supposed to be for a certain term, but which was
afterwards discovered to be for a longer term and of greater
value, it was held that there was no mistake as to the sub-
stance of the thing sold and a Court of Equity refused, after
a lapse of time, to give any relief to the vendor (8).

Agreement It seems that a common mistake of a matter of law indu-

induced by _.- a, é ‘

mistake of Cling an agreement would modify its effect in equity, as ap-

pothparties plied to the true state of the law, upon the same principle as

law, a common mistake upon a matter of fact; and that a Court,
-of Equity would grant relief against an agreement made
under such circumstances (c).

Mistake of | Where an agreement is capable of being applied to diffe-

bothperties rent things or in different ways, and is accepted by each

- application party with a different application, there is no real agreement

agreement. between them and consequently no contract. It is not
competent to a party to an agreement to assert an applica-
tion of the agreement inconsistent with the terms agreed
upon as expressing the common intention; but he is at
liberty to show that it was understood by him to apply in a
manner consistent with its terms, but different from the
application accepted by the other party.

(a) Barr v. Gibson, 3 M. & W. 390. (c) Re Saron Life Assurance Soc.

(6) Okill vy. Whittaker. 1 DeG@.& 23.&H. 408; 32 L. J.C. 206; and
Sm. 83; 2 Phil. 338, see the passages Stone v. Godfrey,5 De G.M.& G.
from the Digest cited by V.C. Knight 76; 23 L. J. C. 769; Story Eq. Jur.
Bruce in this case. § 125-138.
sect. vi. § 1. MISTAKE. 179

In such cases the agreement is said to contain a latent Latent
ambiguity, or one which appears only in the course of apply- *™?&y-
ing it. ‘A latent ambiguity is where it is shown that words
apply equally to two different things or subject-matters; and
then evidence is admissible to show which of them was the
thing or subject-matter intended” (a).

What is called a patent ambiguity, that is, a doubt or Patent
uncertainty appearing in the terms of the agreement as ex- 8")
pressed by the parties themselves, cannot be altered or
explained by extrinsic evidence; and if it is incapable of a
rational interpretation, the agreement, at least to the extent
of the ambiguity, is necessarily void (0).

A contract was made for the sale by the plaintiff to the
defendant of a cargo of cotton “to arrive ex Peerless from
Bombay,” and it appeared that there were two ships named
Peerless then sailing from Bombay, and the plaintiff meant
one and the defendant meant the other; it was held that
there was no contract; and in an action for not accepting
the cargo of cotton by the one ship Peerless, a plea that the
defendant meant another ship Peerless, and that the plaintiff
was not ready to deliver cotton from that Peerless, was held
a good plea (c).

Upon a sale of land by auction the particulars and condi-
tions of sale were so worded that it was doubtful whether
the timber on certain lots was included in the price of the
lot or was to be valued separately, the plamtiff asserting the
one construction and the defendant the other; specific per-
formance in either view was refused, upon the ground that
“if the one intended to sell upon one set of terms as he
conceived them, and the other intend to buy according to a
different set of terms, there was in reality no agreement be-
tween them”? (d).

Since the admission of pleadings upon equitable grounds Mistake as

in actions at law under the C. L. P. Act, 1854, s. 83-86, a peaieae

(a) Per Alderson, B., Smith v. C. 906; 33 L. J. Ex. 160.
Jeffryes, 15 M. & W. 561, 562. (d) Higginson v. Clowes, 15 Ves.
(5) See Coles v. Hulme,8 B.&C. 516; Clowes v. Higginson, 1 Ves. &
568; dider v. Boyle, 4 C. B. 635; Beav. 524; and see Neap v. Abbott,
and see ate, p. 122. . Coop. 333; Baxendale vy. Seale, 19
(c) Raffles v. Wichelhaus, 2 H.&  Beav. 601,
n2
180 CHAP. I. FORMATION OF CONTRACTS.

at law upon mistake in an agreement may in some cases be set up in an

equitable
grounds.

action at law. The courts of law allow pleadings upon
equitable grounds only where by the judgment at law they
can do complete and final justice, and settle all the equities
between the parties ; and, therefore, having no jurisdiction
to pronounce conditional judgments, or to impose or enforce
special terms upon the parties, they allow pleadings upon
equitable grounds only where a Court of Equity upon the
same circumstances would decree an absolute, unconditional,
and perpetual injunction to stay the proceedings at law (a).

Hence, a mistake in an agreement, of the kind in which the
relief in equity would be by reforming the agreement, cannot
be relied on as ground for an equitable pleading ; because
the Court of Law cannot apply the proper remedy (b). Ac-
cordingly, a plea on equitable grounds that the defendant
accepted a bill under a mistake as to the date was not
allowed (c); and a replication on equitable grounds that a
release by deed was executed in mistake of its legal effect
was held bad on demurrer (d).

But where a contract containing a mistake in its terms has
been completely executed according to the terms intended
by the parties, so that no object remains to be served by
reforming the contract, the mistake may be relied upon as
matter for an equitable pleading in answer to the contract, if
alleged according to the written terms (e). So also, where
it would be useless to reform the contract according to the
terms intended by reason of lapse of time or other circum-
stances having rendered a further performance of it imprac-
ticable, the mistake may form an absolute and conclusive
answer to the contract in an equitable pleading (f).

Where the mistake is of that kind that equity would
grant an absolute injunction, it affords a complete answer to
an action on the contract, and is a sufficient ground for an

(a) See Bullen & Leake, Prec. Pl. (d) Teed v. Johnson, 11 Ex. 840;
2nd ed. 486. 25 L. J. Ex. 110.
(b) Perez v. Oleaga, 11 Ex. 506; (e) Steele v. Haddock, 10 Ex, 643;

25 L. J. Ex. 65; Solvency Mutual  Vorley v. Barrett, 1 C. B. N.S. 225;

Guarantee Co. v. Freeman, 7H.& NN. 26L.3.C. P.1.

17; 31 L. J. Ex. 197. (f) Borrowman v. Rossel, 16 C. B.
(ce) Drainv. Harvey, 17 C.B.257; = N.S. 58; 33 L. J.C. P. 111.

25 L. J.C. P. 81.
SECT. VI. § 2. FRAUD. 181

equitable pleading. Thus, an equitable plea to an action on
a contract that the defendant was intended by both parties
to sign it only as agent in order to bind his principal, and
that he signed it in a manner to make himself personally
liable by mistake, was held tobe a good plea (a). So, a
replication on equitable grounds to a plea of a release, that
the release was worded to include the claim sued for by a
mistake, was held gogd (b). In an action on a deed of dis-
solution of partnership in a business, for a breach of cove-
nant in practising the business in a certain district, a plea
upon equitable grounds, that the covenant was worded by
mistake and contrary to the intention of the parties so as
to include the district in which the breach of covenant was
charged, was allowed, as showing grounds for a perpetual
injunction against the action (c).

Cuap. I. Szor. VI. § 2. Fravp.

BAU eae vesicin gawes ve nsaneruarvaws 181 | Effect of Avoidance on Rights
by Misrepresentation......... 182 of the Parties.................. 195
by Concealment ......... ..... 183 | Effect of Avoidance on Rights
Fraudulent Intention ......... 186 of Third Parties.,............. 196
Fraud must induce the Con- Contracts with Warranties,
UTC Ee scmvmasnsrsanragmmsaactian vo 189 and Contracts conditional
Fraud by a Stranger to the upon Representations ...... 198
Contract .......... cee eee 191 | Relief in Equity against Fraud 204
by the Agent of a Party...... 192 | Pleading Fraud at Law upon
Avoidance of the Contract on Equitable Grounds ....,.... 205
the ground of Fraud......... 193

AN agreement, apparently complete and sufficient to create
a contract, may be vitiated by fraud ; and a party to an agree-
ment may avoid its effect by showing that he was induced
to make the agreement by the fraud of the other party.
The question here arises as to what constitutes such fraud
as entitles the party defrauded to avoid the effect of his
agreement, and under what circumstances, and with what
consequences such avoidance may take place.
Fraud, in general, consists in inducing a person to act Fraud.

upon some untrue statement or representation intentionally

(a) Wake v. Harrop,6 H. & N. 387; 30 L. J. Ex. 193.
768; 1 H.& OC. 202; 30 L. J. Ex. (c) Luce v. Izod, 1 H. & N. 245;
273; 31 id. 451. 25 LJ. Ex. 307.

(b) Lyall v. Edwards, 6 H. & N. :
182 CHAP. I. FORMATION OF CONTRACTS.

made for that purpose. In fraud, there is necessarily a mis-
take or misapprehension in the party defrauded, which alone
would not vitiate his dealings with others; but there is the
additional circumstance that the party with whom he deals
intentionally causes the mistake for the purpose of effecting
the dealing, and this precludes the party so occasioning the
mistake from holding the other bound by it (a).

Misrepre- | ‘The misrepresentation by which the fraud is effected must
8 . . :
fact, be respecting some matter of fact. A misrepresentation of

a matter of law is not a sufficient foundation to. constitute
fraud in law, because the law is presumed to be equally
within the knowledge of all. Thus, the misrepresentation of
the legal effect of a written agreement, which a party signs
with a full knowledge of its contents, is not a sufficient
ground in law for avoiding the agreement (b). But if a
person in dealing with another misleads him, or takes advan-
tage of his ignorance respecting his legal position and rights,
though there may be no legal fraud, the case may come within
the jurisdiction exercised by Courts of Equity to prevent im-
position (c).
Misrepre- A misrepresentation of a matter of intention not amount-
geniation al ing to a matter of fact, though it may have influenced the
agreement, is not a sufficient ground for avoiding the legal
effect of the agreement. Where the plaintiff was induced
to grant the defendant a lease of certain premises upon a
representation by him that he intended to use the premises
for a stated purpose, whereas he intended to use them and
did use them for a different and illegal purpose; it was held
the misrepresentation did not entitle the plaintiff to avoid
the lease (d). Upon a contract of sale, a misrepresentation
made by the purchaser to the seller, that certain partners
of the purchaser, interested in the purchase, would not con-
sent to his giving more than a stated sum for the subject
of sale, was held not sufficient ground to entitle the seller
to avoid the sale (e).
So, if a party to an agreement, at the time of making it,

(a) See ante, p. 171. (d) Feret v. Till, 15 C. B. 207;
(2) Lewis v. Jones, 4B. & C. 506. 23 L. J. C. P. 185. 5

(c) See Story, Eq. Jur. § 117-138. (e) Vernon vy. Keys, 12 East, 632.
SECT. VI. 4§ 2. FRAUD. 183

has the intention of breaking it when made, the agreement
is not thereby vitiated and the contract is not the less bind-
ing; if the intention is carried into effect, there is a breach
of contract attended with the usual liability for a breach (a).
_ Although representations of mere intention made at the
time of the agreement for the purpose of inducing it are
immaterial to the validity of the agreement in law, they are,
in general, held binding in equity; and the Court will, ac-
cording to the circumstances, refuse specific performance of
the agreement or rescind it, if the expectations raised by
such representations are not satisfied (bd).

Exaggerated commendations of the subject of the agree- Exagge-
ment of a general character, and not embodying specific re- "4 °°™
presentations of fact, are not, in general, sufficient ground tions.
for avoiding the effect of the agreement. Thus, a represen-
tation made upon the sale of an advowson that “ a voidance
was likely to occur soon ;”(¢) and a representation upon the
sale of land that it was ‘‘ uncommonly rich water mea-
dow ;” (d) although they were found to be exaggerated re-
presentations, were held not to be sufficient ground for
refusing specific performance of the contracts induced by
them. But where upon a sale of growing timber the trees
were represented as of an average size of fifty feet, which in
fact averaged only thirty-five, specific performance was re-
fused (e). A prospectus of a mine containing statements
respecting the general appearance and promise of the mine,
expressed in glowing and exaggerated colours, was held in
equity not to be a sufficient ground of fraud (/).

Fraud may be effected by an active concealment of a fact Conceal

ment of
fact.

(a) Hemingway v. Hamilton, 4M.
& W.115.

(0) Beaumont v. Dukes, 1 Jac. 422;
Myers v. Watson, 1 Sim. N.S. 523;
Peacock v. Penson, 11 Beav. 355;
Trail v. Baring, 33 L. J. C. 521.

(ec) Trower vy. Newcombe, 3 Mer.
704.

(d) Scott v. Hanson, 1 Sim. 13.

(e) Brook v. Rounthwaite, 5 Hare,
298.

(f) Jennings v. Broughton, 17 Beav.
234; 5 De G. M. & G. 126; and see

Kisch vy. Central Ry. Co. of Venezuela,
34 L. J.C. 545, 552, where Turner, L.J.
observed, “It is so universally known
and understood that the prospectus
of a company never, in fact, contains
a strictly accurate account of its pro-
spects and advantages, that the vali-
dity of bargains founded on such in-
strument cannot properly be tried by
so severe a test as may be applied in
other cases.” This observation was
adopted by the M. R. in Denton v.
Macneil, L. R. 2 Hq. 355.
Conceal-
ment of fact

184 CHAP. I. FORMATION OF CONTRACTS.

material to be known by the other party, without any express
representation respecting it. As, where a person sold a
vessel with all faults, and before the sale took her from the
ways on which she lay, and kept her afloat in a dock, in
order to prevent an examination of her bottom which he
knew to be unsound, the purchaser was held entitled to
avoid the contract on the ground of fraud (a). So, where a
person sold a log of mahogany, having turned it so as to
conceal a hole in the underneath side (0).

As to the effect of mere silence without active conceal-
ment, Lord Mansfield laid down the following as the go-
verning principles applicable to all contracts and dealings :
—‘ Good faith forbids either party, by concealing what he
privately knows, to draw the other into a bargain from his
ignorance of that fact and believing the contrary. But
either party may be innocently silent as to grounds open
to both to exercise their judgment upon. ‘ Aliud est celare ;
aliud, tacere: neque enim id est celare quicquid reticeas ; sed
cum quod tu scias, id ignorare emolumentt tut causa velis eos,
quorum intersit id scire.’ This definition of concealment,
restrained to the efficient motives and precise subject of any
contract, will generally hold to make it void, in favour of
the party misled by his ignorance of the thing concealed”? (c).

The defendant bought a picture of the plaintiff under a
delusion as to the ownership of it, and the agent of the
plaintiff employed to sell the picture was aware of the de-
lusion of the defendant and took advantage of it in effect-
ing the sale; Lord Ellenborough held that the defendant
might avoid the contract on the ground of fraud (d). A
debtor compounded with his creditor, knowing that the
latter was under a false impression as to the value of his
estate; Tindal, C.J., held that the creditor might avoid the
composition and recover his debt in full (e). The defendant

(a) Schneider v. Heath, 3 Camp.
506.

(6) See Udell v. Atherton, 7 U.N.
172; 30 L. J. Ex. 337.

(c) Carter v. Boehm, 3 Burr. 1905 ;
18mith’s L.C. 5th ed. 472; see Cicero
de Off. lib. iii, cap. xiii, ciled more

fully hy Lord Abinger in Cornfoot v.
Fowke, 6 M. & W. 358, 380.

(d) Hill vy. Gray, 1 Stark. 434;
explained in Keates v. Earl Cadogan,
10 C. B, 591, 600.

(e) Vine v. Mitchell, 1 Moo. &
Rob, 337.
SECT. VI. § 2, FRAUD. 185

purchased a policy of insurance from the plaintiff, having
ascertained that the person whose life was insured was dan-
gerously ill, and without communicating that fact to the
plaintiff, who was not aware of it; Rolfe, B., held that the
plaintiff might avoid the sale and recover the policy (a).
The interest of a husband in reversionary property of his
wife, which from its nature was subject to the contingency
of the wife surviving her husband before a reduction into
possession and also to the claim of the wife for a settlement,
was offered for sale, and the purchaser knowing the fact of
the wife’s death, obtained a purchase of the property from
the vendors, who were ignorant of the death ; the Court of
Chancery set aside the sale (b), So, where a lessee for lives
obtained an agreement for a renewal of his lease, knowing
but suppressing the fact that the surviving life for which he
held was in evtrenis, a,Court of Equity refused to grant
specific performance of the agreement (c), Where an alleged
interest in certain property was sold by auction, and the
vendor knew at the time of the sale that the interest sold
was of no value, though he made no representation of the
value, the purchaser having no means of ascertaining whether
it was of any value or not, the sale was set aside in equity (d).
Upon the treaty of a sale of marsh land the vendor industri-
ously concealed the circumstance that it required a large
annual outlay for the repair of a river wall; specific perform-
ance was refused against the purchaser (e). The defendant
sold and conveyed an estate to the plaintiff, knowing at the
time but concealing the fact that part of the land was an
encroachment upon a common to which he had no title, the
Court set aside the sale as having been effected by fraud (f).

Conceal-
ment of fact

Upon this principle it seems that a person knowingly selling

selling a chattel with a latent defect, without disclosing it
to the buyer, is guilty of a fraud, which would entitle the
buyer to avoid the sale (yg). But he may expressly stipulate

(a) Jones v. Keen, 2 Moo. & Rob. (e) Shirley v. Stratton, 1 Bro. C. 0,
348. 440.

(0) Turner v. Harvey, 1 Jac. 169. (f) Edwards vy. M‘Leay, Coop.
(ce) Ellurd v. Llandaff,1 Ball & 308.

B. 241. (g) See Mellish v. Motteux, Peake,
(d) Smith v. Harrison, 26 L. J.C. 115. §
412.

chattel with
latent defect
Selling

chattel with

patent
defect.

Fraudulent

intention.

186 CHAP. 1, FORMATION OF CONTRACTS.

that the buyer is to take the chattel with all faults; it is then
immaterial how many faults exist within the knowledge of
the seller, unless he uses some artifice to disguise them, and
to prevent their being discovered by the buyer (a).

If a person sells a chattel with a patent defect in it, and
the buyer has an opportunity of inspecting it, the seller
does not commit a fraud by not pointing out the defect (b).
So, the owner of a house which is out of repair is not bound
to inform a proposed tenant of the state of repair which the
tenant can examine into himself; and if the owner lets the
house, knowing it to be unfit for habitation by reason of its
ruinous state, without communicating that fact to the tenant,
the latter is not, therefore, entitled to avoid the letting on
the ground of fraud (c).

On the occasion of a sale it is not, in general, the duty of
the purchaser to inform the vendor of the circumstances he
may be acquainted with, which may make it desirable for
him to purchase the property (d). Accordingly, where a
first mortgagee with a power of sale, having made an ad-
vantageous contract for the sale of the mortgaged property,
purchased the interest of a second mortgagee, who supposed
the property was insufficient for both mortgages, without
informing him of his contract, the transaction was held valid,
and the first mortgagee was held entitled to retain the whole
of the proceeds of the sale (ce).

An intention to deceive is a necessary ingredient of fraud;
and when a person makes a false statement to another for
the purpose of inducing the other to act upon it, the inten-
tion to deceive depends upon his knowledge or belief respect-
ing the falsehood of the statement. If he knows the state-
ment to be false, or if he does not believe it to be true, the
law imputes to him a fraudulent intention (/).

(a) Baglehole vy. Walters, 3 Camp. (d) See per Lord Thurlow, L. C.,
154; Schneider v. Heath, 3 Camp. Fox v. Mackreth, 2 Bro. C. C. 400,
506; and see Zaylor v. Bullen, 5 Ex. 420; Dolman vy. Nokes, 22 Beav. 402;

779. Tate v. Williamson, L. R. 1 Eq. 528.
(0) Horsfall v. Thomas, 1H. & C. (e) Dolman v. Nokes, supra.
90; 31 L. J. Ex. 322. (f) Foster v. Charles, 6 Bing. 396;

(c) Keates y. Earl Cadogan, 10C. 7 Bing. 105; Polhill v. Walter, 3 B.
B. 591, & Ad. 114,
SECT. vi. § 2. FRAUD. 187

Formerly the opinion prevailed with some judges that if a Fraudulent
person induced another to act by a false statement, he was '™“""°™
equally responsible for the falsehood of the statement whe-
ther he believed it to be true or not; and if he made the
statement with a belief in its truth, he was described as
committing “legal without moral fraud,” which they held
sufficient to vitiate an agreement, or to give a cause of action
for the damages caused by it. But it has been decided that
this opinion is erroneous, and that a fraudulent intention, as
above described, is essential in order to constitute such fraud
as 1s recognised in law (a).

The phrase “legal without moral fraud” is still some-
times used to express the case of a person acting in such a
manner and under such circumstances that a fraudulent
intention is imputed to him, although he was not in fact
instigated by a morally bad motive: for instance, where the
defendant had accepted a bill of exchange in the name of the
drawee, purporting to do so by procuration, knowing that
in fact he had no such authority, but fully believing that
the acceptance would be sanctioned and the bill paid by the
drawee, and the drawee repudiated the acceptance, the jury
negatived a fraudulent intention in fact; but the Court held
that the defendant had committed a fraud in law, by making
a representation which he knew to be untrue, and which he
intended others to act upon (4).

The fraudulent intention does not necessarily include an
intention to benefit the party making the representation, or
au intention to injure the party to whom the representation
is made (c).

If a person makes a statement of fact, in the belief that it
is true, though it is not true in point of fact, there is no
fraudulent intention (d). And a fraudulent intention can-

(a) See Cornfoot v. Fowke,6 M. &
W. 358; Evans v. Collins, 5 Q. B.
804; and the notes to Pasley v. Free-
man, 2 Smith’s L. C. 5th ed. 68.

(bd) Polhill v. Walter, 3 B. & Ad.
114; per Parke, B., Murray v. Mann,
2 Ex. 538, 541.

(ce) Foster v. Charles, 6 Bing. 396 ;
7 Bing. 105; per Lord Campbell,

Wilde v. Gibson, 1 H. L. C. 605, 633.

(d) Ormrod v. Huth, 14 M. & W.
651, 664; Hayeraft v. Creasy, 2
East, 92; Rawlings v. Bell, 1 C.B.
951, 959; Cornfoot v. Fowke, 6 M.
& W. 358; Early v. Garrett, 9 B.
& C. 928; Shrewsbury v. Blount, 2
M. & G. 475; Evans v. Collins, 5 Q.
B. 804.
188 CHAP. I. FORMATION OF CONTRACTS.

Fraudulent not be imputed to a person by reason merely of his having

intention.

constructive notice that a representation made by him is
untrue, where he has: no actual knowledge that it is un-
true (a). But a fraudulent intention is established if a per-
son makes a statement false in fact without believing it to
be true, although he may not have positive information that
it is false (b). Where a person was induced to take shares
in a company by a prospectus issued by the directors con-
taining false statements, which the directors stated in an
affidavit they believed to be true, a Court of Equity granted
an injunction to restrain an action for calls upon the shares,
because it did not appear that the directors had any reason-
able ground for believing the statement to be true (c).

Where a person makes a statement, false in fact, which he
believes to be true, if he at some former time knew the truth
respecting the matter and ought to have remembered it, but
forgot it at the time of making the statement, it is held in
equity to be equivalent to a fraud and vitiates an agreement
induced by the statement (d).

Where a person makes a statement false in fact, which at
the time he believes to be true, but afterwards discovers that
it is false, if after he has become aware that his statement
was false he suffers the other party to continue in error and
act in the belief of his statement, this, from the time of the
discovery, becomes a fraudulent misrepresentation, even
though it was not so originally (e). So, where a statement
is made which is true at the time of making it, but which
becomes falsified by change of circumstances to the know-
ledge of the party making it, if he does not inform the other
party of the change, it is equivalent to a wilful misrepresen-
tation and will vitiate an agreement induced by it (/).

If a person is under a special duty to give correct infor-
mation to another, and makes a statement which is in fact
false, though he is not aware that it is false and believes it

(a) Wildev. Gibson, 1 H.L.C.605. 470; Pulsford v. Richards, 17 Beav.
(6) Taylor v. Ashton, 11M. & W. 87, 94; Slim v. Croucher, 2 Giffard,
401, 415; Hvans v. Edmonds, 13 C. 387; 29 L. J.C. 278.
B. 777, 786. (e) See Reyneld v. Sprye,1 De G.
(c) Smith v. Reese River Co., L. M. & G.660, 709,
Rep. 2 Eq. 264. (f) See Traill v. Baring, 33 L. J.
(d) Burroughs vy. Lock, 10 Ves. OC. 521.
SECT. v1. § 2. FRAUD. 189

to be true, it is equivalent to a fraud, in that he cannot take
advantage of the statement, and a contract made with him
on the faith of it may be set aside. Where a partner ina
bank, treating with a person about joining the partnership,
made a statement respecting the affairs of the bank which
was in fact false, though he was ignorant of the falsehood,
the contract to join the partnership was set aside, on the
ground that the partner making the statement-was bound,
in relation to the incoming partner, to know the state of the
partnership affairs, and to give correct information (a).

There are some contracts, as contracts of insurance, which
are made on the basis of the truth of the statements of one
of the parties ; and such contracts are avoided by misrepre-
sentation or concealment of a material fact, without any frau-
dulent intention (0).

The fraud must be respecting a fact which materially m- Trand in-
ucing the
duces the agreement. contract.
The phrase of the civil law “dans locum contractui”’ has
been frequently adopted to describe the necessary materiality
of the fraud ; and it has been interpreted by saying that the
fraud must consist in “the assertion of a fact on which the
person entering into the contract relied, and in the absence
of which it is reasonable to infer, that he would not have en-
tered into it; or the suppression of a fact the knowledge of
which, itis reasonable to infer, would have made him abstain
from the contract altogether” (c).
The defendant became surety for a loan advanced by the
two plaintiffs, who represented that it was made by a joint-
stock loan company regularly constituted with certain stated
rules, but in fact it was lent by the two plaintiffs only, who
called themselves such company, which did not otherwise
exist ; it was held that the misrepresentation respecting the
existence and constitution of the company was immaterial,
and was not the real inducement to contract, which was to

(a) Rawlins v. Wickham, 1 Gif- 87, 96; and see per Lord Cranworth,
fard, 355; 3 De G. & J. 304; 28 L. National Exchange Co. vy. Drew,
J.C. 188. 2 M‘Q. 103, 120; Attwood vy. Small,

(b) See post, p. 199. 6 Cl. & Fin. 232, 444, 395; Cankam

(c) Pulsford v. Richards, 17 Beav.  v. Barry, 15 C. B. 597.
190 CHAP. I. FORMATION OF CONTRACTS.

Fraudin- obtain the loan for the accommodation of the borrower (a).

ducing the ay ae :

contract. The plaintiff, for a particular purpose, was party to a false
representation of another person’s accounts, whereby the
latter appeared to havea balance in his favour ; subsequently,
for the different purpose of getting an execntion out of the
house of the latter, he joined in a bill, upon an indemnity
given him by the defendant, who was then cognizant of the
state of accounts previously represented, but not of the true
state of accounts ; it was held that the false representation
not having been made with reference to the transaction in
question, and not having influenced the defendant, the con-
tract was not obtained by fraud (6).

Where, notwithstanding misrepresentations made by the
one party, the other relies upon his own information and
judgment, and not upon the representations made to him,
the agreement is not in fact induced by fraud, and cannot
be avoided on that ground (ce).

Whatever misrepresentation is contradicted by the actual
knowledge of the other party cannot have induced the con-
tract, and therefore cannot be ground for avoiding it (d). So,
“af the means of investigation and verification be at hand,
and the attention of the party receiving the representations
be drawn to them, the circumstances of the case may be
such as to make it incumbent in a court of justice to impute
to him a knowledge of the result, which upon due inquiry
he ought to have obtained, and thus the notion of reliance
on the representations made to him may be excluded” (e).
Misrepresentations were made respecting the value of a
mine in which the plaintiff bought shares, but he himself
visited the mine, and examined into its condition ; it was
held that he had not relied on the representations and was
not entitled to avoid his contract on the ground that they
were false (f). Where an estate put up for sale was described
as in a ring fence, the purchaser, having inspected the estate

(a) Green v. Gosden, 3M. & G. G. M. & G. 126, 131; Lowndes y.

446 Lane, 2 Cox, 363 ; Vigers v. Pike,
@) Way vy. Hearne, 110. B.N.8. 8 Cl & F. 562, 650.
774; 32L. J.C. P. 34. (e) Clapham v. Shillito, 7 Beav.

(0) Clapham vy. Shillito, 7 Beav. 146, 149; Attwood v. Small, 6 CL &
146; Attwood v. Small, 6 Cl. & F. 232. F. 232.
(d) Jennings v. Broughton, 5 De (f) Jennings v. Broughton, supra.
SECT. VI. § 2. FRAUD. 191

before he purchased, was held bound to complete, notwith- Fraud in-
, Bie ducing the
standing the description was false (a). contract.
Mere constructive notice, as of the contents of a deed
mentioned in the conditions of sale, is not sufficient to ex-
clude the purchaser from asserting that he relied on an ex-
press representation made to him respecting its contents (b).
But upon the sale of leaseholds it is the duty of the pur-
chaser to inquire into the terms of the original lease; and
therefore he cannot resist performance on the ground of
misrepresentations respecting those terms (c).
Where a person in fact relies upon misrepresentations
made t» him for the purpose of deceiving him, he may be
entitled to avoid the agreement which he is thereby induced
to make, notwithstanding he had the means of obtaining in-
formation of the truth which he did not use. In an action
for fraudulently inducing a sale of land by misrepresenting
the value of the rents, Holt, C.J., said, “If the vendor
gives in his particular of the rents, and the vendee says he
will trust him and inquire no further, but rely on his par-
ticular ; then if the particular be false, an action will lie ; but
if the vendee will go and inquire further what the rents are,
then it seems unreasonable he should have any action, though
the particular be false, because he did not rely upon the par-
ticular” (d). So, where the purchaser of a public house re-
lied on misrepresentations of the seller as to the business
done, which he might have tested by the seller’s books, he
was held to be entitled to avoid the sale (e).

A contract between two parties cannot be avoided by one Fraud by a
of them on the ground that he was induced to make it by §7ser ©
the fraud of a third party, in which the other party to the tract.
contract was not implicated (f).

Where a person has been induced to take shares in a

(a) Dyer v. Hargrave, 10 Ves. 505.

(b) Drysdale v. Mace, 2 Sm. &
Gif. 225; Kisch v. Central Ry. Co.
of Venezuela, 34 L. J. C. 545.

(ce) Pope y. Garland, 4 Y. & Col.
Ex. 394.

(d) Lysney v. Selby, 2 L. Raym.
1118, 1120; and see Reynell v. Sprye,

1 De G. M. & G. 660, 710; 21 L.
J. C. 633, 655; Cor v. Middleton,
2 Drewry, 209; 23 L. J.C. 618.

(e) Dobell v. Stevens, 3 B. & C.
623.

(f) Masters v. Ibberson, 8 OC. B.
100; and see per Buller, J., Master
y. Miller, 4 T. R. 320, 337.
Fraud by
agent of
one of the
parties.

192 CHAP. I. FORMATION OF CONTRACTS.

company by false and fraudulent representations emanating
from the company or for which it is responsible, he may avoid
the contract on the ground of fraud (a) ; but if he has been
induced to take shares from the company by fraudulent re-
presentations made by some person, not being an agent
of the company authorized to make any representation or
authorized to deal on behalf of the company, although he
may have a right of action against the person who made the
false representations, he is bound by his contract with the
company and cannot repudiate the shares (b). So, if a per-
son has been induced to buy shares in a company from the
holder of them, by false and fraudulent representations ema-
nating from the company, he cannot avoid his purchase or
repudiate his shares (c).

So in equity, “in the case where the false representation
is made by one whois no party to the agreement entered into
on the faith of it, the contract cannot be avoided, and all
that equity can then do is to compel the person who made
the representation to make good his assertion so far as this
may be possible” (d).

Where one of the parties acts in the matter of the agree-
ment through an agent, duly authorized in that behalf, and
the agent induces the agreement by a fraud committed upon
the other party, the agreement may be avoided against the
principal, although he did not authorize the fraud and was
not cognizant of it (e).

Where an agent employed to make a contract for his prin-
cipal, without the authority or knowledge of his principal,
made an untrue statement which induced another to contract,

(a) Brockwell’s Case, 4. Drew. 205 ;
26 L. J. C. 855; Ayre’s Case, 25
Beay. 513; 27 L. J. C. 579; Ev p.
Frowd, 30 L. J. C. 822.

(b) Brockwell’s Case, 4 Drew. 205,
213; 26 L. J. C. 855, 860; Nicol’s
Case, 3 De G. & J. 387; 28 L. J.C. 257.

(c) Bx p.Worth,4 Drew. 529; 23 L.
J.C. 589; Duranty’s Case, 26 Beav.
268; 28 L. J.C. 37.

(d) Pulsford vy. Richards, 17 Beav.
87, 95; and see Montefiori v. Monte-
fiori, 1 W. Bl. 363; Neville v. Wil-
kinson, 1 B. C. C. 543; Scott v. Scott,
] Cox, 366; Moncey v. Jorden, 15 Beay.

%

372, 378.

(e) Attwood y. Small, 6 Cl. & F.
F. 232, 448; Wheelton v. Hardisty,
8 E. & B. 232, 260; Murray v. Mann,
2 Ix. 588; Brockwell’s Case, 4 Drew.
205, 212; 26 L. J. 0. 855, 856. In
a recent case the judges of the Court
of Exchequer were equally divided
upon the question whether the prin-
cipal is liable to an action for the unau-
thorized fraud of his agent committed
in the course of the transaction.
Udell vy. Atherton, 7 H. & N. 172;
30 L. J. Ex. 337, where see all the
authorities on this point cited.
SECT. VI. § 2. FRAUD.. 193

but did so without any fraudulent intention and believing the
statement to be true, it was held that the contract was bind-
ing, and-could not be avoided on the ground of fraud, al-
though the principal was aware of the truth respecting the
matter (a).

Where an agreement has been induced by the fraud of one
of the parties upon the other, the party defrauded has the
right of avoiding the agreement upon the discovery of the
fraud ; but, subject to the exercise of such right, the agree-
ment is binding. So, a deed of which the execution has been
induced by fraud is not therefore void; but the party de-
frauded may at his election treat it as void (b). In an action
on a contract, in order to enable the defendant to assert an
avoidance of the contract on the ground that it was induced
by fraud, the defence of fraud must be specially pleaded (c).

If a party who has been induced to enter into an agree-
ment by the fraud of the other party, after discovering the
fraud, treats the agreement as binding, he loses his right of
avoiding it. A person was induced to purchase shares in a
company by misrepresentations of the seller, some of which
he afterwards discovered to be fraudulent, but he continued to
deal with the shares as his own ; he was held to be precluded
from avoiding the sale, and it was also held that the subse-
quent discovery of a new incident in the fraud served only
to corroborate the original fraud, but did not revive the
right of avoidance which he had waived (d). The plaintiff
was induced to undertake certain work for the defendant at
a certain price upon a fraudulent representation of the de-
fendant as to the quantity of the work, and after discovering
the fraud continued and completed the work ; it was held
that he could not avoid the contract and claim payment from
the defendant according to the value of the work, but could
only claim according to the terms of the contract (e).

(a) Cornfoot v. Fowke, 6 M. & W. (c) Reg. Gen. 8 T. T. 1853; and
858, Lord Abinger, C.B. dissentiente; sce Robson v. Luscombe, 2 D. & L.
and see Fuller v. Wilson, 3 Q. B.58, 859.

68, 1009. (d) Campbell vy. Fleming,1 A. & E.

(6; Per Maule, J., Pilbrow vy. Pil- 40; and see Hr p. Briggs, L. Rep. 1
brow’s Atmospheric Ry. Co. 5C.B. Eq. 483; 851. J. C. 320.

440, 453. (e) Selway v. Fogg, 5 M. & W. 83.

0

Avoidance
of contract
induced by
fraud.
194 CHAP. I, FORMATION OF CONTRACTS.

Avoidance So, where one party, after full knowledge of the misrepre-

naa sentations alleged to have been made, gave notice to the

ees other party that he insisted on the performance of the con-
tract by a certain time, otherwise he should consider it at an
end, and offered to perform his part of the contract, he
was held in equity to have precluded himself from resisting
specific performance on the ground of fraud (a); and
where the plaintiffs sought to avoid an agreement for the
lease of a mine on the ground of fraudulent misrepresenta-
tions of its value, having continued to work the mine after
full knowledge of all the circumstances of the fraud, they
were held not to be entitled to relief ()).

The agreement cannot be avoided upon the discovery of
the fraud, if it has then been so far acted upon and per-
formed, or if the circumstances have so far changed, that the
parties can no longer be restored to the original position in
which they were at the time of the agreement being made,
or if they are not so restored (c). Accordingly, in an ac-
tion by a public company against a shareholder for calls, a
plea, that the defendant was induced to become a share-
holder by the fraud of the plaintiffs, was held bad, as ad-
mitting that the defendant was still a de facto shareholder ;
and it was said that to make the plea good, if it could be
made good at all, it ought to have alleged that he had not
taken any benefit as a shareholder, and that as soon as he
discovered the fraud he disaffirmed the transfer to him, and
gave up the shares, and ceased to be a shareholder (d). The
plaintiff took shares in a mining company on the cost book
principle, which he continued to hold and upon which he
received the dividends; afterwards the company was regis-
tered as a joint stock company with limited liability and an
order was made for winding up the latter company, and pend-
ing the proceedings the plaintiff discovered that he had been
deceived into taking the shares by the fraudulent misrepre-

a Macbryde v. Weekes, 22 Beavy. EH. B. & E.148; 27 L. J. Q. B. 223;
and see Hunt vy. Silk, 5 East, 449 ;
em) Tigers v. Pike, 8 Cl. & F. 562. = Blackburn v. Sinith, 2 Ex. 783.
(c) Deposit and General Life Ass. (d) Deposit and General Life Ass.
Co. v. Ayscough, 6 HE. & B. 761; 26 Co. v. ee 6 E.& B. 761; 26
iL. J.Q. B. 29; Clarke v. Dickson, L.J.Q.B.
sucr. vi. § 2. FRAUD. 195

sentation of the directors; it was held that he could not re-
pudiate the shares and recover the original price paid for
them on the ground of the fraud, because it was no longer
possible for him to return the shares in their original state, or
reinstate the parties in their original positions (a).

In the case of an agreement for a lease induced by a fraud
upon the landlord, it was held that whilst the agreement was
executory the landlord had a right, on discovering the fraud
to exercise his option to avoid the agreement, but that,
after letting the tenant into possession and executing the
lease, he could not avoid the agreement and turn the tenant
out of possession (2). In an action upon the acceptance of
a bill of exchange the defendant pleaded that the bill was ac-
cepted by him in payment of a ship sold to him by the plain-
tiff, and that he was induced to purchase the ship by false
and fraudulent representations of the plaintiff respecting the
state of the ship ; the plea was held bad, because it appeared
from it that the defendant still had the ship (c).

Although from the causes above mentioned it may be
no longer open to the party defrauded, upon the discovery
of the fraud, to avoid the agreement, he may have his
remedy for the fraud by a special action upon the case to
recover the amount of damages occasioned by it, treating
the fraud as a substantive cause of action (¢).

The effect of the avoidance of an agreement on the ground
of fraud is to place the parties in the same position as if it
had never been made; and all rights which were transferred
or created by the agreement are revested or discharged by
the voidance.

Thus, a person who has been induced to buy goods by the
fraud of the seller may avoid the contract of sale and return
the goods, and recover back the money paid for the price as
money received by the seller for his use (e). So, a person who

(a) Clarkeyv. Dickson, E. B.& E. 8 Irish C. L. Rep. 35.

148; 27 L. J. Q. B. 228. (ce) Sully v. Frean, 10 Ex.535.

() See per Blackburn, J., R. v. (d) See Clarke v. Dickson, HE. B. &
Saddlers Co., 32 L.J.Q. B. 337,343;  E.148; 27 L. J. Q, B. 223.
Feet y. Hill, 15 C. B.207; 23 L. J. (e) Gompertz vy. Denton, 1 C.&M.

C. P. 185; andsee Stewart y. Aston, 207; see ante, p. 49.
02

Effect of
avoidance
of the con-
tract upon
the rights
of the par-
ties.
Effect of
avoidance
of the con-
tract upon
the rights
of third
parties.

196 CHAP. I. FORMATION OF CONTRACTS.

has been induced by fraud to sell goods may avoid the contract
and recover back his goods from the buyer. A seller of goods
under a contract induced by the fraud of the buyer was held
entitled to disaffirm the contract and revest the property m
himself and recover the goods, notwithstanding the buyer
had become bankrupt and his assignees had taken posses-
sion of the goods; for the assignees took only the interest
of the bankrupt, and they could not claim the goods as hay-
ing been in the possession of the bankrupt with the consent
of the true owner, because the contract only showed a con-
sent to the bankrupt taking the profession as buyer (a).

If a person has been induced to enter into a contract by
fraud, under which he has delivered his goods or money, or
rendered his services, and he disaffirms the contract, he
cannot charge the other party with any other contract as
arising out of the transaction, but is remitted to his remedies ,
for the fraud and for the recovery of his property ()).

The rights of third parties acquired through a contract in-
duced by fraud, before avoidance of the contract, and without
participation in or notice of the fraud, cannot be affected by
a subsequent avoidance.

Thus, where a person has purchased goods from another
by means of a fraudulent sale, and before avoidance of the
contract resells them to a third party, who takes them with-
out knowledge of the fraud, the latter acquires a good title
to the goods, which cannot be defeated by the original seller
subsequently disaffirming the contract (c).

In the judgment delivered in the case of Kingsford v.
Merry (d), the effect of a fraudulent sale upon the property in
the goods sold was explained as follows :—“ It is quite clear
that when a vendee obtains possession of a chattel with the
intention, by the vendor, to transfer both the property and
the possession, although the vendee has committed a false
and fraudulent misrepresentation in order to effect a contract,
or to obtain the possession, the property vests in the vendee

(a) Load vy. Green, 15 M. & W. (c) White v. Garden, 10 0. B. 919.

216. (d) 11 Ex. 577, 579; 25 L. J. Ex.
(4) Sce the cases cited ante, p. 30. 166, 168.
SECT. VI. § 2. FRAUD. 197

until the vendor has done some act to disaffirm the trans-
action ; and the legal consequence is, that if before the dis-
affrmance the fraudulent vendee has transferred over the
whole or part of the chattel to an innocent transferee, the
title of such transferee is good against the vendor.”

The judgment of the Court of Exchequer in that case was
reversed on appeal, but without impugning the law as stated
in the passage above quoted. The Court of Exchequer had
decided the case upon the supposition that the goods had in
fact been obtained from the original owner by a contract of
sale induced by the fraud of the vendee, and that the fraudu-
lent vendee had transferred the goods before disaffirmance
of the contract to a third party who took them Loud fide and
without notice of the fraud, and that therefore the case came
within the principle of law above laid down. ‘I'he Court of
Exchequer Chamber however decided, upon the facts, that
there was not any contract of sale, but that the possession of
the goods was obtained from the original owner by a mere
fraud without any contract to support a transfer of property,
and consequently there was no title in the fraudulent trans-
feree which he could transfer to a third party (a).

The plaintiff, intending to sell goods to a certain firm,
delivered them to a person who in order to obtain the goods
had falsely represented himself to the plaintiff as a member of
the firm and authorized to buy for them, and who after receiv-
ing the goods pledged them with the defendant ; it was held
that the plaintiff was entitled to recover the goods from the de-
fendaut, because, the contract having been professedly made
with the firm, there was no contract conferring any property
on the person to whom the goods were delivered and from
whom the defendant claimed title (8).

Upon this principle, where a person has been induced to
become a shareholder of a company through fraud of the
company, he cannot, by avoiding his contract with the com-
pany and repudiating his shares, evade his liability to credi-
tors of the company who dealt with the company whilst

(a) Kingsford v. Merry, 11 Ex,  v. Coles, 6 M. & 8. 14; Higgons v.
577; 25 L. J. Ex. 166; 1 H.& N. Burton, 26 L. J. Ex. 342.
503; 26 L. J. Ex. 83; and see Par- (b) Hardman v. Booth, 1 H. & C.
ker v. Patrick, 5 T.R 175; Boyson 803; 32 L. J. Ex. 105.

~
Contracts
with war-
ranty, and
conditional
upon the
truth, of
representa-
tions.

Contract of
sale with
warranty.

198 CHAP. I. FORMATION OF CONTRACTS.

he remained a shareholder, and who were not parties to the
fraud (a). So, where a negotiable instrument is obtained by
fraud, the negotiation of the instrument gives a valid title
to a transferee, who takes it without notice of the fraud (4).

A contract may in its terms expressly warrant the truth
of representations by which it is induced; or it may be made
conditional, as to its validity, upon the truth of such repre-
sentations.

Contracts of sale are frequently made containing a war-
ranty of the title of the seller, or of the quality of the article
sold. In contracts of sale of specific chattels a warranty of
the title of the seller, or of the quality of the article, or of
any representations previously made respecting it, is not, as
a general rule, implied in law; though such warranty may
often be inferred as a fact from the nature or circum-
stances of the sale (c). The maxim caveat emptor applies ;
which means that if the purchaser is satisfied without re-
quiring a warranty of such matters he takes the risk of them
upon himself, and cannot recover upon a mere representa-
tion made by the. seller which turns out to be false, unless
he can show that the representation was not only false but
also fraudulent (d).

Where there isa warranty contained in such contract, and
the warranty is broken, the purchaser is not entitled to avoid
the contract upon the mere breach of warranty; but if a
representation is made fraudulently for the purpose of indu-
cing a contract, the consequences of the fraud are not altered
by the representation being warranted in the contract, and
the party defrauded is entitled to avoid the contract on the
ground of the fraud, notwithstanding the warranty of the
same matter (e).

(a) Henderson v. Royal British (d) Pickering y. Dowson, 4 Taunt.
Bank,'7 EB. & B. 356; 26L.3.Q.B. 779; Kain v. Old, 2 B. & C. 627;
112; Powis vy. Harding, 1 C.B.N.S. Hopkins v. Tanqueray, 15 C.B.130 ;

533; 26 L. J.C. P. 107. 23 L. J. C. P. 1623; Ormrod vy. Huth,
(6) Barber v. Richards, 6 Ex.63; 14M. & W. 651.
May v. Chapman, 16 M. & W. 355. (e) Weston v. Downes, Doug. 23;

(ec) See Morley vy. Attenborough, 3 Street v. Blay,2 B. & Ad. 456; Gom-
Ex. 500; Eichholz v. Bannister, 17 pertz v. Denton, 1 ©. & M. 207;
C.B.N.S.708; 34 L. J.C. P. 105. Murray v. Mann, 2 Ex. 538.
SECT. VI. § 2. FRAUD. 199

A contract of sale may, however, be made conditional, as
to its validity, upon a warranty or representation respecting
the goods ; and then the breach of such warranty or repre-
sentation avoids the contract, independently of fraud (a).
The contract may also expressly provide in its terms for a
rescission of the contract, and the return of the goods and
the price, upon a breach of the warranty (6).

Upon a sale of goods, which are not specifically ascer-
tained, but are described by kind and quality, the seller
becomes bound to deliver goods answering to the descrip-
tion in the contract, and, thus, such description is substan-
tially warranted ; but in such case, if the goods delivered do
not answer the description contracted for, the buyer may
return them or refuse to accept them, not by reason merely
of a breach of warranty, as such, but because the delivery of
such goods is not a performance of the contract (c).

There are some important classes of contracts which are Contracts
made on the basis of the representations of one of the ae
parties, so that the validity of the’contract is conditional
upon the truth of those statements. In contracts of marine Marine in-
insurance the risk insured against, which forms the subject *7"°*
of the contract, is commonly described by the insured, and
is accepted by the insurer entirely upon his description.
The accuracy and completeness of the description of the
risk intended to be insured thus becomes an essential condi-
tion of the contract. The insured is bound to disclose and
truly represent all material facts within his knowledge touch-
ing the risk; and the concealment or misrepresentation of
any such fact avoids the contract, although not accompanied
with any fraudulent intention (d).

According to Lord Mansfield (e), “Insurance is a contract

(a) Bannerman v. White, 10 C.B.  Lorymer v. Smith, 1 B. & C. 1.
N.S. 844; 31 L. J. C. P. 28; and (d) See Fitzherbert v. Mather, 1
see Dawson v. Collis, 10 C. B. 523. T. R.12; Carter v. Boehm, 3 Burr.
(b) See Adams vy. Richards,2 H. 1905; 1 Smith’s L. C. 5th ed. 472;
Bl. 573. per Bayley, J., Lindenau v. Desbo-
(c) See Street v. Blay,2B.& Ad. rough, 8 B. & C. 586, 592; Behn v.
456, 463; per Lord Abinger, C.B.,  Burness, 3 B. & 8. 751, 753.
Chanter v. Hopkins, 4 M. & W. 399, (e) Carter v. Boehm, 3 Burr. 1905,
404; Ollivant v. Bayley,5 Q. B.288; 1909; 1 Smith’s L. C. 5th ed. 472.
Insurance
on life.

200 CHAP. I, FORMATION OF CONTRACTS.

upon speculation. The special facts upon which the contin-
gent chance is to be computed lie most commonly in the
knowledge of the insured only: the underwriter trusts to
his representation, and proceeds upon confidence that he
does not keep: back any circumstance in his knowledge, to
mislead the underwriter into a belief that the circumstance
does not exist, and to induce him to estimate the risk as if
it did not exist. The keeping back such circumstance is a
fraud, and therefore the policy is void. Although the sup-
pression should happen through mistake, without any fraudu-
lent intention, yet still the underwriter is deceived, and the
policy is void; because the risk run is really different from
the risk understood and intended to be run at the time of
the agreement.” And according to Parke, B. (a), “Policies
of insurance are made upon an implied contract between the
parties, that everything material, known to the assured,
should be disclosed by them. That is the basis on which
the contract proceeds; and it is material to see that it is not
obtained by means of untrue representation or concealment
in any respect.”

In a recent case in the Exchequer Chamber it was held
that in policies of insurance on life if is not an implied con-
dition of the validity of the policy that the insured should
make a complete and true representation respecting the life
proposed for insurance, but that such condition, if intended,
must be made the matter for express stipulation. Conse-
quently, an erroneous statement, not fraudulently made, and
the truth of which had not been expressly stipulated for
as a condition of the contract, was held not to avoid the
policy (4). Before this decision the opinion seems to have
prevailed that policies of insurance on life came under the
same rule as policies of insurance on ships, namely, that
they were made conditionally upon the truth and com-
pleteness of the representations respecting the risk, and
that misrepresentation or concealment of a material fact, al-
though not fraudulent, vitiated the policy (c). It is, however,

(a) Moens v. Heyworth, 10 M. & (c) Lindenau v. Desborough, 8 B.
W. 147, 154. & ©. 586; and see Jones v. Provin-
(b) Wheelton v. Hardisty,8 E.& cial Ins. Co. . 30. B. N.S. 65, 86;

B. 232; 27 L. J.Q. B. 241. 26 L. J. 0. P. 272, 274,
SECT. VI. § 2. FRAUD. 201

an implied condition that the person whose life is insured is
alive at the time of the making of the policy; aud where a
policy was made upon the life of a person who was then
dead, though neither party to the policy was aware of his
death, the policy was held void («).

In effecting policies of insurance on life it is commonly
required by the insurer that the insured shall sign a written
declaration containing certain statements respecting the life
insured, and it is expressly stipulated in the policy that
such declaration is the basis of the contract; the effect of
which is, that an untrue statement contained in the declara-
tion, though it be not fraudulent, and even though it be
not material in inducing the policy, avoids the contract (b).
Such a declaration expressly defines and limits by agree-
ment the rights of the insurers as to the communication and
materiality of facts; consequently, reticence or mistake
respecting any matter not specified in the declaration, in
the absence of fraud, does not affect the policy (c).

It is sometimes expressly agreed between the insurer and
the insured that the policy shall not be disputed on the
ground of merely untrue statements not fraudulently made ;
and then any misrepresentation or concealment undesignedly
made does not avoid the policy (d). In the case of Wood v.
Dwarris (e) an insurance company published a prospectus,
undertaking that their policies should be indisputable ex-
cept in cases of fraud, and a policy was made upon the faith
of the prospectus, but did not incorporate it; the company
was held, upon equitable grounds, to be precluded from dis-
puting the policy upon the ground merely of an untrue state-
ment, though the policy was expressed in its terms to be
made upon the condition of the truth of such statement.
But in the later case of Wheeltun v. Hardisty (f) a ditfer-

Manchester and

(a) Pritchard vy. Merchants’ Life
Ins. Soc., 3 C. B. N.S. 622; 27 LJ.
C.P. 169; ante, p. 177.

(6) Anderson v. Fitzgerald, 4 H.
L. C. 484; Cazenove v. British Equi-
table Ass. Co., 6C. B. N. 8. 437;
28 L. J. C.P. 259.

(ce) Jones v. Provincial Ins. Co.,
30. B.N. 8.65; 26 L.J. OC. P. 272.

(d) Fowkes v.
London Life Assur. Assoc., 3 B. & 8S.
917; 32 L. J. Q. B. 153.

(e) 11 Ex. 493; 25 L. J. Ex. 129.

(f) 8 E.& B. 232; 26L.5.Q.B.
265; and see Wood v. Dwarris ex-
plained by Pollock, C.B., in Reis v.
Scottish Equitable Ass. Co.. 2 H. &
N.19; 26 L. J. Ex. 279.
Insurance
against fire.

Contracts
of gua-
rantee.

202 CHAP. J. FORMATION OF CONTRACTS.

ence of opinion seems to have been entertained amongst the
judges as to the effect of such a prospectus upon a policy
incorporating or referring to it.

Where a person proposes to insure the life of another, and
for that purpose refers the insurer to the person whose life
is to be insured, and to other named persons for the in-
formation respecting the life which may be required by the
insurer, the persons thus referred to are not thereby consti-
tuted the agents of the insured in effecting the policy ; and
if their information is false and fraudulent, but not to the
knowledge of the insured, the insurer is not entitled to avoid
the policy on the ground that it was induced by the fraud
of an agent of the insured; the insured is not affected by
their statements unless it has been agreed that the policy
shall be made upon the basis of those statements («).

Policies of insurance against fire are made upon the im-
plied condition that the description of the property inserted
in the policy is true at the time of making the policy (0) ;
and it seems that there is an implied condition that the pro-
perty insured shall not be altered during the term insured
so as to increase the risk (c). It has also been said that
there is an implied condition that no material alteration
shall be made in the premises during the term insured (d).
But such conditions, if generally implied, are excluded by
the insertion in the policy of express conditions respecting
alterations in the premises insured (¢). In effecting in-
surances on property against fire, it is the duty of the in-
sured to communicate to the insurer all material facts within

his knowledge touching the property (f).

In contracts of guarantee and suretyship, as where a per-
son stands surety to a creditor for the solvency of his debtor,
or where the surety guarantees to an employer the honesty

(a) Huckman v. Fernie, 3 M.& W. (d) Stokes v. Cor, 1 H. & N. 320,
505; Wheelton v. Hardisty,8E.&B. 583; 251. J. Ex. 291; 26 2b. 113.
232; 26 L. J. Q. B. 265; explaining (e) Stokes v. Cox, supra.

Everett v. Desborough, 5 Bing. 503. (f) Bufe v. Turner, 6 Taunt. 338 ;

(6) Sillem vy. Thornton, 3E.&B. and see Lindenaw v. Desborough,
866; 23 L. J. Q. B. 362. 8B. & C. 586, 592; Jones y. Pro-

(ce) See ib. vincial Ins. Co., 3 C. B. N. 8. 65, 86.
sect. vi. § 2. FRAUD. 203

and good conduct of the person employed, the contract is in
the nature of an insurance against risk; but the same rule
does not prevail as in insurances on ships and other pro-
perty. A person who takes a guarantee for the solvency or
conduct of another is not bound to disclose all material facts
and circumstances within his knowledge respecting the
transaction guaranteed ; and the reticence or misstatement
on his part respecting such facts and circumstances, in the
absence of fraud, does not affect the validity of the gua-
rantee (a). So, in contracts of indemnity, reticence or mis-
statement must be accompanied by fraud in order to vitiate
the contract (0).

But where, upon a proposed contract of guarantee “ the
creditor describes to the proposed sureties the transaction
proposed to be guaranteed (as in general a creditor does) that
description amounts to a representation, or, at least, is evi-
dence of a representation that there is nothing in the trans-
action that might not naturally be expected to take place
between the parties to a transaction such as that decribed ;
and if a representation to this effect is made to the intended
surety by one who knows that there is something not natu-
rally to be expected to take place between the parties to
the transaction, and that this is unknown to the person to
whom he makes the representation, and that, if it were
known to him, he would not enter into the contract of
suretyship, it 1s evidence of a fraudulent representation on
his part ”’(c).

Where it had been agreed between the vendor and
vendee of goods that the latter should pay at a rate above
the market price, which extra sum was to be applied in
liquidation of an old debt due to the vendor, and a gua-
rantee was taken for the payment of the goods to be sup-
plied, without communicating to the surety the bargain as
to the price, it was held that there was a fraud on the surety

(a) North British Ins.Co.v. Lloyd, 109; Lee v. Jones, 17 C. B. N.S.
10 Ex. 523; 24 L. J. Wx. 14; andsee 482; 34L.J3.C.P.131.

Owen v. Homan, 3 Mac. & G. 378; (b) Way v. Hearne, 13 C.B. N.S.
20 L. J. ©. 314; 4 H. L. C. 997; yo2. 32... 3.6. P, 34,
Smith v. Bank of Scotland, 1 Dow. (e) Per Blackburn, J., Lee v. Jones,

272; Railton v. Mathews, 10 Cl. 170. B.N.S. 482, 503; 341. d.C.
& F. 934; Hamilton v. Watson, 12ib. PP. 131, 138.
204 CHAP. I. FORMATION OF CONTRACTS.

oe which rendered the guarantee void (a). Where a guarantee

tee Was taken by a bank for the good behaviour of an agent, it
was held that the fact that the bank knew that the principal
had misconducted himself in his office, which was not com-
municated to the sureties, was material as evidence of imaccu-
rate representation that he was trustworthy, and ought to
have been admitted to proof (b). The mere taking of a
security for a banker’s cash account, without communicating
that the principal had already overdrawn his account, was
held to be no evidence of a representation that he had not,
as under such circumstances it might reasonably be sup-
posed that he had (c).

The plaintiff, a coal-merchant, had employed an agent to
sell coals upon the terms that he was to be answerable for
the price of the coals sold by him and to pay for them
monthly, and also upon a guarantee for the due perform-
ance of his engagement to the amount of £300; afterwards
the agent becoming indebted on the coal account above
£1300, the plaintiff required further security, and an agree-
ment was made for that purpose between plaintiff and the
defendant, which recited the terms of the engagement of
the agent and the former guarantee, and provided that the
defendant should give a continuing guarantee to the plain-
tiff for three years to secure the amount of any balance
that might at any time during the three years be due from
the agent to the plaintiff; the plaintiff did not inform the
defendant that any debt was then due from the agent; it
was held by a majority of the Court of Exchequer Chamber
that there was evidence to support a verdict that the agree-
ment was obtained by fraud (d).

ae in The Courts of Equity exercise a jurisdiction to rescind
ul .
aan contracts obtained by fraud or fraudulent concealment, such

fraud. as would be sufficient to avoid the contract in a court of
law ; and the Court of Chancery will in some cases set aside

(a) Pidcock v. Bishop, 3B.&C.  F.109; see North British Ins. Co. v,
605. Lloyd, 10 Ex. 523.

(6) Smith v. Bank of Scotland, (d) Lee v. Jones, 17 C.B. N.S. 482;
1 Dow. 272. 34 L.J3.C.P. 131; Bramwell, B., and

(ce) Hamilton vy. Watson, 12 Cl. & — Pollock, C.B., dissentientibus.
SECT. VI. § 3. DURESS. 205

an agreement as obtamed under fraudulent circumstances,
where the circumstances would not be sufficient to entitle
the party in law to avoid the agreement on the ground of
fraud. The Court of Chancery will in some cases refuse the
remedy of specific performance of an agreement on account
of the fraudulent or suspicious character of the transaction
although it would not set aside the agreement (a).

The fraud, upon which a court of equity would rescind Pleading
the contract altogether, would, in general, be sufficient pues
ground for avoiding the contract at law, and would be matter eauitable
for a legal pleading. But there are cases where a court of
equity would rescind a contract for a misrepresentation
made without any fraudulent intention, im which the con-
tract could not be avoided in law; and in such cases a plea
on equitable grounds might be applicable. The fraud, which
merely disentitles a party in equity to the remedy of specific
performance, and is not sufficient ground for rescinding the
contract, leaves the party his legal rights and remedies upon
the contract, and is not matter for a pleading at law upon
equitable grounds. Where the circumstances are such that
a court of equity would rescind the contract for a misrepre-
sentation, but upon terms of restitution, the equity, beg

conditional, is not a proper equitable ground for a pleading
at law (0).

Cuar. I. Secr. VI. § 3. Doress.

Duress to the Person............ 206 | Avoidance of Agreement in-
Duress of Goods ............... 206 duced by Duress............... 209
By and on whom Duress must Relief in Equity against

be imposed. .cccssvaerse aesse os 208 DUWress acswasieauseaeversawens 209

AN agreement apparently complete and sufficient to create Duress.
a contract, may be vitiated by duress, as it is called in Eng-

lish law; that is, where one of the parties to the agreement

was induced to consent by fear and intimidation, imposed by

the violence or threats of the other party, he may avoid the
agreement.

(a) See Story Eq. Jur. §§ 184,796 ; (b) See Gorsuch v. Cree, 8 C. B.
Cox v. Middleton, 2 Drew. 209. N. 8.574; 29L. J.C. P. 308.
Duress to
the person.

Duress by
threats.

Duress of
goods.

206 CHAP. I. FORMATION OF CONTRACTS.

The duress recognized in law, as producing a sufficient de-
gree of fear to vitiate an agreement induced by it, may con-
sist in actual violence to the person, or in threats thereof («).
Duress by actual violence may consist in illegal imprison-
ment; but a legal imprisonment will not constitute duress.
In commenting on duress by imprisonment Lord Coke lays
down as follows :—“ Every restraint of the liberty of a free-
man is an imprisonment, although he be not within the walls
of any common prison.’’—“ If a man be imprisoned by order
of law, the plaintiff may take-a feoffment of him or a bond
for his satisfaction, and for the deliverance of the defendant,
notwithstanding that imprisonment, for this is not by dures
of imprisonment, because he was in prison by course of law ;
for it is not accounted in law dures of imprisonment, but
where either the imprisonment or the dures that is offered in
the prison or at large is tortious and unlawful, for evecutio
juris non habet injuriam” (b).

Duress may also consist of threats of personal violence,
which is called dures per minus. According to Lord Coke,
in order to entitle a person to avoid his own act as induced
by fear imposed by threats, ‘‘The fear must concern the
safety of the person of a man, and not his houses or goods ;
for if he fear the burning of his houses or the taking of or
spoiling of his goods, this is not sufficient, because he may
recover the same, or damages to the value, without any cor-
poral hurt. Again, if the fear do concern the person, yet
it must not be a vain fear, but such as may befall a constant
man.—Tulis enim debet esse metus qui cadere potest in virum
constantem, et qui im se continet mortis periculum et corporis
cruciatum.—Fear of imprisonment is sufficient, for the law
hath a special regard to the safety and liberty of a man”? (c).

In the case of Skeate v. Beale (d) the distinction between
duress of the person and duress of goods, as affecting agree-
ments, was explained in the judgment of the Court as fol-
lows :—“* We consider the law to be clear, and founded on

(a) 1 Blackst. Com. 131. Bracton, |. 2, fo. 16 8; per Lord El-
(2) 2 Inst. 482; and sce Smith vy.  lenborough, C.J., R. v, Southerton, 6
Monteith, 18 M. & W, 427, 412. East, 126, 140.

(c) Co. Lit. 2536; 2 Inst. 483; (d) 11 A. & E. 983, 990.
SECT. vi. § 3. DURESS. 207

good reason, that an agreement is not void because made
under duress of goods. There is no distinction in this re-
spect between a deed and an agreement not under seal ; and,
with regard to the former, the law is laid down in 2 Inst.
483, and Sheppard’s Touchstone, p. 61, and the distinction
poimted out between duress of, or menace to the person, and
duress of goods. The former is a constraining force, which
not only takes away the free agency, but may leave no room
for appeal to the law for a remedy ; a man, therefore, is not
bound by the agreement which he enters into under such
circumstances: but the fear that goods may be taken or in-
jured does not deprive any one of his free agency who pos-
sesses that ordinary degree of firmness which the law re-
quires all to exert.”? Accordingly, where the plaintiff had
seized the defendant’s goods as a distress for rent, claiming
more than was due, and the defendant, in consideration of
plaintiff withdrawing the distress, promised to pay the arrears
claimed, the agreement was held not to be voidable on the
ground of the duress of the defendant’s goods (a).

But where money is paid to release goods or property from
duress and upon no other consideration, it is considered as
an involuntary payment, and may be recovered (b). The
distinction between the cases of money obtained by duress
of goods and an agreement obtained by the same means is
pointed out by Parke, B., in his judgment in the case of
Atlee v. Backhouse (c). ‘There is no doubt that if goods
are wrongfully taken, and a sum of money is paid, simply
for the purpose of obtaining possession of these goods again,
without any agreement at all, especially if it be paid under
protest, that money can be recovered back; not on the
ground of dwress, because I think that the law is clear, al-
though there is some case in Viner’s Abridgment to the con-
trary (d), that in order to avoid a contract by reason of
duress, it must be duress of a man’s person, not of his goods ;
and it is so laid down in Sheppard’s Touchstone (e) : but the
ground is, that it is not a voluntary payment. If my goods
have been wrongfully detained, and I pay money simply to

(a) Skeate v. Beale, supra. (d) Vin. Abr. Duress, (B), 3; 1
(b) See ante, p. 52-54. Roll. Abr. 687.
(c) 3 M. & W. 638, 650. (e) P. 61.

Money ob.
tained by
duress of
goods.
By and on
whom the
duress
must be
imposed.

Davess on

third party.

Contract by

agent in-
duced by
duress on
his princi-
pal.

208 CHAP. I. FORMATION OF CONTRACTS.

obtain them again, that being under a species of duress or
constraint, may be recovered back ; but if, while my goods
are In possession of another person, I make a binding agree-
ment to pay a certain sum of money, and to receive them back,
that cannot be avoided on the ground of duress”? (a). In the
above case (b), the Commissioners of Excise had seized goods
of the plaintiff for the purpose of condemnation, and the
plaintiff, in consideration of areturn of the goods and the re-
linquishment of the proceedings for condemnation, paid the
appraised value of the goods; it was held that the money
was paid under a valid agreement made upon good consi-
deration, and the duress of the goods formed no ground for
avoiding the agreement.

The duress must be the act of the party obtaining the con-
tract, or done with his knowledge, and taken advantage of
by him, for the purpose of obtaining the agreement (c).

A contract cannot be avoided on the ground that it was
obtained by duress imposed on a third party. An action
was brought ona bond conditioned that a third party should
pay asum of money, to which the defendant pleaded that
the latter was illegally imprisoned at the instance of the
plaintiff, and the defendant entered into the bond as his
surety for the debt in order to release him from imprison-
ment; it was held that the plea was not any plea for the
surety, although it had been a good plea for the principal,
“for none shall avoid his own bond for the imprisonment or
danger of any other than of himself only” (d). It is laid down
in an old case that a person may avoid his deed if obtained by
duress imposed on his father, or his wife, but not if obtained
by duress imposed on his master or a stranger (e).

A contract may be avoided on the ground of duress, where
the contract is made by an agent of the party suffering the
duress in order to remove the duress from his principal.
The plaintiff had been confined in a private Innatic asylum,

(a) And see per Coleridge, J., Ast- 187; and see Pole vy. Harrobin, 9
more v. Wainwright, 2Q. B. 837, 846. East, 416 (@) ; Smith v. Monteith, 13

(b) Atlee v. Backhouse, supra. M.& W. 427,

(ec) 1 Rolle, Abr. 683. (e) 1 Rolle, Abr. 687 ; and see Code

(d) Husconbe v. Standing, Cro. Jac. Civil § 1113.
SECT. VI. § 3. DURESS. 209

and an inquisition of lunacy had been instituted against her
by the defendants, at which an arrangement was entered into
and signed by the plaintiffs counsel, that the defendants
should withdraw from the inquisition, and that the plaintiff
should be released from restraint upon giving up certain
deeds to the defendants; the plaintiff afterwards repudiated
the arrangement as having been induced by duress, and
brought the action for the recovery of the deeds; the Court
decided for the plaintiff, saying :—“ If her counsel acted for
her, believing her of sound mind, from the same fear of in-
convenience and disease as likely to arise from confinement
which affected the mind of their principal, their proceeding
ought to be considered as enforced by the same duress”’ (a).

An agreement induced by duress, like an agreement in- Avoidance
duced by fraud, is not absolutely void, but voidable only at oe
the election of the party intimidated (>). If a person having ee by
been constrained by duress to make a contract afterwards
voluntarily acts upon it, he thereby affirms its validity and
precludes himself from afterwards avoiding it (c). In an
action upon a contract, the defence that it was procured by

duress must be specially pleaded (d).

Courts of Equity exercise a jurisdiction to set aside con- Relief in
tracts on the ground of duress. They will also set aside ae
contracts in some cases on the ground that they were ob- duress.
tained by threats, or undue influence, or oppression, though
not amounting to legal duress ; and in some cases they will
refuse to enforce such contracts by specific performance,
though they will not set them aside, and will leave the

parties to their legal remedies (e).

(a) Cumming v. Ince,11 Q.B.112. & J. 333; 30L. J.C. 1.

(6) 2 Inst. 482; and see “ Fraud,” (2) Whelpdale’s case, 5 Co. Rep.
ante, p. 193. 119 a; Reg. Gen. 8, T. T. 1853.

(ec) Ormes vy. Beadel, 2 De G. F. (e) Story Eq. Jur. § 239.
210

CHAPTER II.
PARTIES TO CONTRACTS.

Ssction I. Or Partizs in GENERAL.

Number of Parties.... ... 210 | Construction of Contracts as to
Joint Contracts ....... ve 212 Joint and Several Parties... 217
Joint Debtors ... 213 | Rights of Joint Parties inter se 220
Joint Creditors .... ... 215 | Contract affects Parties only... 221
Several Contracts ...........- ‘... 216 | Contracts in Writing inter
Joint and Several Contracts... 217 ONCES serrincinirtentein peeareeiss 223

 

Number of EVERY contract necessarily involves two parties, one bound

parties.

to perform the contract, and the other entitled to have it
performed.

For example, in order to constitute a promissory note
there must be both a promiser and a promisee. A note in
which the maker promises to pay to himself, or to his own
order, is not a promissory note, and contains no bind-
ing engagement. An instrument so drawn is incomplete,
being in the nature of a conditional engagement, in case the
maker should afterwards indorse the note, to pay it to the
person to whom by such indorsement he should direct it to
be paid; if indorsed specially, it imports a- promise to pay
to the person to whom it is indorsed or his order; if the
maker indorses it in blank and circulates it, it becomes in
effect payable to the bearer (a).

So, a promissory note made payable nine months after
date, “to the secretary for the time being” of a society, was

(a) Brown vy. De Winton, 6 C. B, 336.
SECT. I. OF PARTIES IN GENERAL. 211

held invalid, because it did not show a certain payee («) ; and
for the same reason a bill of exchange drawn payable six
months after date, to the order of “the treasurer for the
time being” of an institution, was held invalid (6); but a
promissory note made payable “to the trustees of the N.
chapel or their treasurer for the time being”’ was held valid;
the trustees being taken to be the payees, and the treasurer
only their agent to receive payment (c). An instrument in
the form of a bill of exchange and accepted, but without
the name of either a drawer or payee, does not constitute a
binding contract, though capable of being completed by
adding the names of such parties (d).

An insurance office having two departments, one for in-
surance and the other for annuities, the latter department
effected a policy of insurance with the former, upon the life
of a person to whom a loan had been made, and who had
covenanted to pay the premiums for insuring his life; it
was held that the policy so made was a nullity, because
made by the company with themselves, and that the debtor
could not be charged with the premiums (e). So, a covenant
made by a person with himself and others jointly, to pay
money on their joint account, was held void (/).

Where a shipowner carries his own goods in his own ship,
there is no “freight”? properly so called, because there
can be no contract made by the shipowner with himself in
respect of the carriage. Hence, in such a case, the under-
writers on the ship, upon abandonment of the ship as lost,
having brought the goods to their destination, it was held
that they had no claim upon the owner for freight in respect
of the carriage of the goods to the place where the ship was
lost, notwithstanding the general rule that the abandonees
of a ship are entitled to all the freight earned by it at the
time of abandonment (7). So, the mortgagee of a ship with

(a) Cowie v. Stirling, 6 EH. & B.  Stoessiger v. South-Eastern Ry. Co.,
333; 25 L. J. Q. B. 335. 3 E. & B. 549; 23 L. J. Q. B. 293.

(6) Yates v. Nash, 8 C. B.N.S. {e) Grey v. Ellison, 25 L. J. C.
581; 29L. J. C0. P. 306. 666

(c) Holmes v. Jaques, L. Rep. 1 (f) Faulkner v. Lowe, 2 Ex. 595.
Q. B. 376; 35 L. J. Q. B. 130. (9) Miller v. Woodfall, 8 E. & B.
- (d) M'Call v. Taylor, 19 C.B.N. 493; 27 L. J. Q. B. 120.
8. 301; 84 L. J. C. P. 365; and see

P2
Joint con-
tracts.

212 CHAP. II. PARTIES TO CONTRACTS.

the freight, on taking possession of the ship, cannot claim
freight in respect of a cargo shipped by the owner, because
the owner cannot contract with himself (a).

Several persons may join in a contract on the one part or
on the other ; that is to say, in respect of the same debt or
liability more persons than one may be joined in the charac-
ter of creditor or promisee, or more persons than one in the
character of debtor or promiser, or more persons than one in
both characters. In such cases the persons jointly becoming
party to the contract, though they may have several interests
relatively to one another, are considered as united in in-
terest relatively to the other party to the contract. Con-
tracts of this kind are called joint contracts or joint debts ;
and the persons composing the respective parties thereto
are called joint creditors or joint promisees, and joint debtors
or joint promisers.

In some cases, where several persons are associated jointly
to fill an office, or authorized jointly to conduct some business,
they are all required to join in contracting, and less than
all cannot validly contract. Thus, where two persons were ap-
pointed to fill the office of clerk to trustees of a turnpike road,
it was held that they must both join in executing a contract
on the part of the trustees; Tindal, C.J., said -—‘‘ How are
we to say that if the trustees have appointed two clerks,
perhaps for the benefit of having their united judgment, the
two are not to be parties to.a contract which is to bind the
trustees ? it is like the case where two execute the office
of sheriff or bailiff” (0). The provisional committee cf a
railway company appointed eight persons as a managing
committee, with authority to carry out the scheme, but with-
out provision that any number less than the whole might act,
and six of them gave an order to the plaintiff for certain
work ; it was held that the defendaut, a member of the pro-
visional committee, was not bound by the order so given (c).

The peculiar effects of joint contracts may be considered :
—1. Where the contract is joint on the part of the promiser

(a) See Gumm v. Tyrie, 4 B. & 8. (c) Brown v. Andrew, 18 L. J. Q.
680; 33 L. Jd. Q. B. 97; 34 40.124.  _B.153; and sce Guthrie y. Armstrong,
(6) Belly. Nixon, 9 Bing. 393. 5 B. & Ald. 628.
SECT. I. OF PARTIES IN GENERAL. 213

or debtor. 2. Where the contract is joint on the part of the
promisee or creditor.

1. As to joint promisers or debtors :—If an action is to be cue
brought upon a contract made by several persons jointly, who an
are still living and are resident within the jurisdiction of the
Court, they should all be joined as defendants in the action.
If one of them is sued alone, he is not bound to answer to
the merits of the action without the rest being sued with him ;
he may plead in abatement of the writ, that is, that the
debt was due, or the promise was made by him, jointly with
another or others, who is or are still living and resident within
the jurisdiction of the Court, and not by himself alone. But
that is the only mode in which he can object to being charged
separately ; and if he pleads to the merits of the claim, as
by plea of non est fuctum or non assunpsit or the like, he
cannot raise any valid objection on the ground of others
being jointly liable with him (i).

The liability of one of joint promisers or debtors was ex-
plained by Abbott, J., as follows (L) :— By the law of Eng-
Jand, where several persons make a joint contract, each is
liable for the whole, although the contract be joint. In
Whelpdale’s case (c), the plaintiff had declared on a bond
made by the defendant, to which the defendant pleaded non
est factwm; the jury found that the bond was a joint bond,
made by the defendant and another to the plaintiff, and upon
this special verdict it was adjudged by the Court, that the
plaintiff should recover: “because when two men are
jointly bound, in one bond, although neither of them is bound
by himself, yet neither of them can say, that the bond is not
his deed ; for he has sealed and delivered it, and each of them
is bound in the whole.”’ That was a case upon a deed, but
Price v. Shute (d) was a case upon a simple contract ; and it
was there held, that although the promise was a joint pro-
mise, yet the defendant, who was sued alone, could not say
that he did not promise; and that the only way of taking

(a) Sheppard’s Touchstone, p. 376. (ec) 5 Rep. 119.
(8) Richards vy. Heather, 1 B. & (d) 5 Burr. 2618.
Ald. 29, 35,
Joint
debtors.

214 CHAP. Il. PARTIES TO CONTRACTS.

advantage of the omission of the other joint contractor, was
by plea in abatement. These two cases establish this, that
proof of a joint contract is sufficient to sustain an allegation
that one contracted; and, therefore, there is no variance.”
Hence, each party to a joint contract is severally liable, in
the sense that, if sued severally and he does not plead in
abatement, he becomes liable to the creditor for the entire
debt (a).

So, where more than one of several joint contractors are
sued jointly, omitting others, the defendants may plead the
non-joinder in abatement; but, if they do not, the proof of
the joint contract is sufficient to charge them. Thus, in an
action on a bill of exchange, the declaration charged it to
have been drawn upon and accepted by the three defendants,
and it was proved to have heen drawn upon and accepted by
the three, jointly with a fourth; it was held that there was
no variance, and that the contract charged was proved (b).

The plea in abatement of the non joinder of a joint con-
tractor cannot be sustained, where the alleged joint con-
tractor is dead, or where he is not resident within the juris-
diction, or where he has been discharged from the debt by
proceedings in bankruptcy or insolvency, or where he was an
infant at the time of contracting and has since avoided the
contract, or where the debt is barred as against him by the
Statute of Limitations (c). In all which cases the person sued
may be charged by the creditor with the entire debt.

Where the joint contractors are sued jointly, and the judg-
ment passes against them jointly, though the writ of execu-
tion must follow the judgment and charge all the defendants
jointly, yet, in putting the writ in force, the whole amount
of the judgment may be levied against one separately ; con-
sequently, each joint contractor becomes ultimately liable to
the creditor for the whole, and not only for his proportion-
ate part, although the contract be joint (¢).

(a) Abbot v. Smith, 2 W.BL 947; 2nd ed. 411, 412.

see King v. Hoare, 13 M. & W. 494, (d) Per Lord Mansfield, C.J., Bird
505; Cross vy. Williams, 7H. & N.  v. Randall, 1 W. Bl. 387, 888; and
675; 31 L. J. Ex. 145. see Abbot v. Smith, 2 W. Bl. 947,

(4) Mountstephenv. Brooke,1B.& 949; per Lord Kenyon, C.J., Herries
Ald. 224. v. Jamieson, 5'T. R. 553, 556,

(ec) See Bullen & Leake, Prec, Pl.
215

The County Court Act, 9 & 10 Vict. c. 95, s. 68, enables Joint
a plaintiff to sue any one or more joint debtors without the “Pt
others, and to obtain judgment and execution against those
sued.

Upon the death of one of several joint contractors, the
lability under the contract devolves on the surviving joint
contractors or joint contractor; the representative of the
deceased cannot be sued at law jointly with the survivors.
Consequently, the whole liability ultimately devolves upon
the last surviving contractor, and after his death upon his
representatives (a). A release made to the executor of one
of joint obligors is inoperative, because upon the death of the
one the debt survived against the others (6).

Upon the death of one of several joint contractors after
judgment obtained against them, the lability upon the judg-
ment devolves upon the survivors, and execution by fi. fa. or
ca. sa, may be levied against them without reviving the judg-
ment; but the judgment, as a charge upon the real estates
of the joint contractors, remains unaltered by the death, and
the creditor may have execution by elegit against the lands
of the deceased, equally with the survivors, by reviving the
judgment against the survivors and the terretenants of the
deceased (c).

SECT. I. OF PARTIES IN GENERAL.

2. As to joint promisees or creditors :—Where the contract Joint ere-
is joint on the part of the promisees or creditors, all the per- litons.
sons entitled under it must join in suing upon it as joint plain-
tiffs (d). A disclaimer by one of the joint promisees, by a deed
to which the promiser is not also a party, will not entitle the
others of the joint promisees to sue alone upon the contract (¢).

If one of the joint promisees is omitted, and the defect ap-
pears upon the record, it may be objected to by demurrer, or

(a) See Shepp. Touch. by Preston,
p. 876; Richards v. Heather, 1B. &
Ald. 29; Calder v. Rutherford, 3 B.
& B. 302. As to the liability in equity
of the executor of a deceased joint con-
tractor, see Wms. Ex. 5th ed. p. 1577.

(b) Ashbee v. Pidduck, 1 M. & W.
564,

(c) Harbert’s ease, 3 Co. 14 a; 2
Wns. Saund. 50 a, (4) ; 72 1.

(d) Eccleston v. Clipsham, 1 Wms.
Saund. 153 ; Hatsall v. Griffith, 20.&
M.679; Pugh v. Stringfield, 30. B.N.
8.2; 476.364; 27 L. J.C. P.34, 225.

(e) Wetherell v. Langston, 1 Vx.
634.
Joint
creditors.

Several
contracts.

216 CHAP, IL. PARTIES TO CONTRACTS.

by motion in arrest of judgment, or by error (a). If the
objection does not appear upon the record, and the action
proceeds to trial, there would be a variance between the con-
tract appearing in fact and that alleged upon the record,
which, unless amended, would be ground for a nonsuit or ad-
verse verdict, and prove fatal to the plaintiff’s case (b). The
objection may be taken by the defendant at an earlier stage,
by pleading in abatement, that the promise was made to the
plaintiff and another jointly and not to the plaintiff alone, or
by giving a notice in writing to the plaintiff to the same
effect under the provision of the Common Law Procedure
Act 1852, C. L. P. Act, 1852, s. 35. The omission may be
amended by the plaintiff before trial under the provisions of
s. 84 0f the C. L. P. Act, 1852, or, unless the defendant has
previously taken the objection, at the trial under s. 35 (c).

Where one of several joint creditors or promisees dies, the
legal right under the contract devolves upon the survivors,
who only must sue upon the contract. The representative of
the deceased joint creditor or promisee cannot be joined in
suing with the survivors, nor can he sue alone (d).

Several persons may contract separately respecting the
same matter. Thus, several persons may bind themselves
severally to another im respect of the same matter or debt,
so that the creditor is entitled to claim the whole debt or
performance against each debtor separately ; or one person
may bind himself to each of several persons in respect of
the same matter or debt, so that each of such creditors is
separately entitled to claim the whole debt or performance.
The peculiar characteristic of such contracts is the identity
of the debt or matter in the several contracts; so that the
payment or performance of one of the contracts discharges
all (e).

(a) Petrie v. Bury, 3 B. & C. 353; — tindale, 1 East, 497; and see Jell v.
Pugh v. Stringfield, supra; Wetherell Douglas, 4 B. & Ald. 374; Scott v.

y. Langston, 1 Ex. 634. Godwin, 1 B. & P. 67,74.
(6) Chanter v. Leese, 4 M. & W. (e) This is called in the civil law
295. obligatio in solidum, Mackeldey § 330;
(ce) See Bullen & Leake, Prec. Pl. Warnkeenig, § 539; and see Code

2nd ed. 405. Civil, 1. 8, t.3,s. 4.“ Des obligations
(d) Martiny. Crump, 2 Salk. 444; — solidaires.” i
1 L. Raym. 340; Anderson v. Mar-
SECT. I. Of PARTIES IN GENERAL. 217

A frequent use of this mode of contracting occurs in gua-
rantees, where a principal debtor and sureties become seve-
rally bound to the creditor for the debt or matter guaranteed ;
the creditor may sue one or other of the debtor and sureties
separately for the whole amount, and payment by one dis-
charges all as against the creditor ; though, as between them-
selves, the sureties who are compelled to pay may be entitled
to recover the amount from the principal debtor, or a pro-
portionate part of it from the other sureties (a).

Several persons may enter into concurrent contracts re-
specting the same matter, binding themselves jointly as one
party, and also severally as separate parties, at the same
time ; in which case, besides the one joint contract, there
are also as many several contracts as there are separate
persons ; the debt or matter of the contract being one and
the same in all the contracts thus made. Thus, a joint and
several promissory note by several makers is equivalent to
a joint note, and as many distinct separate notes as there
are makers (4). ‘If A. and B. covenant jointly and severally,
the covenant may be joint or several, and the covenantors
may be sued either all together, or all of them apart, at the
election of the covenantee”’ (c). ‘If three be bound jointly
and severally in a bond, the obligee cannot sue two of them
only, but he must either sue them all, or each of them sepa-
rately” (d); but if two of the three obligors are sued alone,
they can object only by pleading in abatement of the action,
that there is another joint obligor (e).

But it seems that a contract cannot be so made, in re-
spect of one and the same matter, as to entitle several per-
sons under it both jointly and severally ; they must either
be entitled under it jointly only, or severally only (f).

Where several persons join in a contract in respect of the

(a) See ante, p. 42, 438. (e) See ante, p. 214; 1 Wms.
(b) Beecham v. Smith, E.B.& FE.  Saund. 1544; 291 g.
442; 27 L. J.Q. B. 257. (f) Slingsby’s case, 5 Co. 186;
(c) Shepp. Touch. by Preston,  Bradburne v. Botfield, 14M. & W.
p- 166, 180, 376. 559, 573; Heightley v. Watson, 3 Ex.

(d) Per Buller, J., Streatfield v. 716, 723.
Halliday, 3 'T. R. 779, 782.

Joint and
several con-
tracts.

Construc-

tion of con-
tracts as to
joint and
several
parties,

As to joint
or several
liability.

As to joint
or several
rights.

218 CHAP. II. PARTIES TO CONTRACTS.

same matter, the question whether they do so jointly as one
party, or severally as distinct parties entering into several
contracts, or, in the case of the persons bound, jointly and
severally, making a joint contract and several distinct con-
tracts at the same time, depends on the intentions of the
parties, as manifested in the evidence of the contract. Some
rules for the construction of contracts in this respect have
been laid down by the authorities.

1. With respect to the liability of several persons under
the contract, it ig laid down in Sheppard’s Touchstone as
follows :—“If two, three, or more bind themselves in an
obligation thus, obligamus nos, and say no more, the obliga-
tion is and shall be taken to be joint only and not several ;
but if it be thus obligamus nos et utrumque nostrum, or obli-
gamus nos et unumquemque nostrum, or obligamus nos et quem-
libet nostrum, etc., in all these cases the obligation is both
joint and several.—But the more proper form is ‘ We bind
ourselves, our heirs, executors, and administrators, and each
of us bindeth himself, his heirs, executors, and administra-
tors” (a). Hence, in written contracts the language used is the
primary guide to the meaning ; but it is not always conclu-
sive. The language is sometimes ambiguous, and often not
exclusive of an intention of contracting in either way; in
which case the sense must be derived from the interests and
relations of the parties as appearing in the contract (b). The
words of a deed executed by several parties were, “‘ we bind
ourselves and each of us for himself for the whole and entire
sum of £1000 each ;” the instrument was held from the con-
text to constitute a several bond by each of the parties for
a several sum of £1000, and not a joint bond (c).

2. With respect to the right of several persons under
such contracts a rule of construction has been adopted to
the following effect :—A contract will be construed to be
jot or several according to the interests of the parties, if
the words are capable of that construction, or even if not

(a) Shepp. Touch. by Preston,  son’s case, 5 Co. 23; Duke of North-
p- 375. umberlandy. Errington, 5 T. R, 522;
(b) See Lee y. Nixon, 1 A. & BE. Mansell v. Burredge, 7 T. R. 352
201, 208. Lord Galway v. Matthew, 1 Camp.

(ce) Collins vy. Prosser, 1B. &C. 403; Ex p. Buckley, 14 M. & W.
682; and see otherexamples, Mathew- 469.
SECT. I. OF PARTIES IN GENERAL. 219

inconsistent with it; if the words are ambiguous or will Construc-
admit of it, the contract will be joint if the interest be joint, elena
and it will be several if the interest be several (a). But amelie,
contract entered into with several persons, in respect of the

same matter or interest, cannot by any words be made so as

to entitle them both jointly and severally (6).

An estate was conveyed to several persons jointly, and
the grantor covenanted with those persons, e¢ cum quolibet
eorum, that he had a good title; it was held that, the in-
terest of the covenantees being joint, the covenant was joint
and not several, and that the words cwm quolibet eorum were
void of effect; and it was laid down that if a grantor by
deed conveys several estates to several persons severally,
and covenants with them, et cum quolibet eorum, that he had
title, the covenant is several by reason of the several in-
terests of the covenantees (c). One of the parties to a deed
“covenanted and agreed to and with the other and others
of them respectively, and his and their respective executors
and administrators, etc.,” and the interest of the cove-
nantees in the matter of the covenant was joint; the cove-
nant was construed to be made with them jointly and not
severally, so that one of them could not sue alone (d).
The defendant covenanted with A., his executors, adminis-
trators, and assigns, and also with B. and his assigns, to
pay an annuity to A. during B.’s life; it was held that the
legal interest was joint, though the benefit was for A. only,
and, therefore, the covenant was joint and not several, so
that after A.’s death the right of action survived to B.
solely, and the administrator of A. could not sue upon the
covenant (é).

By a deed made between the plaintiff and H. of the one
part and the defendant of the other part, after reciting an
agreement for a loan on mortgage of a sum of money then

(a) Shepp. Touch. by Preston, p. Ayers, 1 E.& E.118; 28 L.J.Q.B.
166; Eccleston v. Clipsham,1 Wms. 105.

Saund. 153; Sorsbie v. Park, 12 M. (b) Ante, p. 218 (f).

& W. 146; Keightley v. Watson, (ce) Slingsby’s case, 5 Co. 18 .

3 Ex. 716, 722; Foley v. Adden- (d) Eccleston v. Clipsham,1 Ws.
brooke, 4Q. B. 197; Pugh v. String- Saund. 153.

field, 3 OC. B. N.S. 2; 426. 364; (ce) Auderson v. Martindale, 1 East,

27 L. J. OC. P. 34, 225; Haddon v. 497.
2

20 CHAP. II. PARTIES TO CONTRACTS.

in plaintiff’s hands as trustee for H., the defendant cove-
nanted ‘ with the plaintiff, his executors, etc., and also, as a
distinct covenant, with H. his executors, etc.,” to pay in-
terest on the loan until repayment of the principal; it was
held that the covenantees had a joint interest, and, there-
fore, the covenant was joint only and not several (a). Ina
deed in which the defendant covenanted with one of the
parties, and “as a separate covenant” with another of the
parties, and the interests of those parties were several, the
covenants were construed to be several (b). The defendant
by a deed covenanted “ with each of the said parties thereto
of the third part;” it was held that the covenant was in
point of form several, and, the interest of the covenantees
being also sufficiently several to support a several covenant,
ib was so construed (c).
If tenants in common demise jointly and the lessee cove-
nants to repair, the interest of the lessors in the covenant is
joint, and they must join in suing upon it (d).

Rights of
jointparties -
as between J

The rights and liabilities of persons who have contracted

ointly or severally respecting the same matter, as between

themselves. themselves, depend upon the relation in which they stand,
and the agreement or understanding upon which they have
joined in the contract ; the contract itself, in general, is in-
dependent of such relation or agreement. Thus, in con-
tracts of guarantee made between a creditor and the prin-
cipal debtor and his sureties, which have been referred to
above as a common application of this mode of contracting,
the principal debtor and the sureties are, usually, all made
debtors in equal degree to the creditor, who may recover the
whole debt against all or any of them. As between them-
selves, however, the principal debtor is solely hable; and if
the surety is called upon by the creditor to pay any part of
the debt, he may, upon payment, recover the amount from

the principal debtor.

2

(a) Hopkinson v. Lee, 6 Q. B. 964.

(0) Keightley v. Watson, 3 hx.716.

(ce) Mills v. Ladbroke,7 M. & G.
18

(d) Kitchen vy. Buckly, 1 Ley.109 ;

So, where there are several sureties

T. Raym. 80; Foley y. Addenbrooke,
4 Q. B.197; Thompson v. Hakewill,
19 C. B. N.S. 718; 35 L. J.C. P.18;
and see Bradburne vy. Botfield, 14 M.
& W. 559.
SECT. I. OF PARTIES IN GENERAL. 221

who are all primarily liable for the whole debt to the credi-
tor, and one of them is called upon to pay, each of the
other co-sureties becomes rateably indebted to him for con-
tribution (a).

The principal contract may, however, in some cases be
affected by the rights and relations of the several parties
who join in it; as in the case of the relation of principal and
surety existing. between them, the creditor is bound, upon
principles of equity, to abstain from any dealing with the
debtor which may affect the liability of the surety, or preju-
dice his position. Thus, if the creditor binds himself to give
time to the princinal debtor, without the consent of the
surety, the latter is thereby discharged (0).

The legal effect of a contract is, as a general rule, confined A contract
to the parties to it. A contract cannot create a right or a a
liability in a person who is not a party. only.

In the case of Crowe v. Rogers (c), the declaration charged
as a contract between the plaintiff and the defendant, that
one H., being indebted to the plaintiff in a certain sum, it
was agreed between H. and the defendant that the defendant
should pay the debt to the plaintiff in consideration of H.
conveying to the defendant a house, and the plaintiff claimed
payment of the debt from the defendant; upon demurrer the
Court held the declaration bad, because it stated the agree-
ment to be between H. and the defendant, and the plaintiff
was a stranger to the contract. In Price v. Haston (d), the
contract was stated in the declaration to be, that W., being
indebted to the plaintiff, agreed with the defendant to work
for him at certain wages and leave the amount in his hands,
in consideration of which the defendant promised to pay the
debt to the plaintiff; after verdict for the plaintiff, judgment
was arrested on the ground that the plaintiff was a stranger
to the contract ; Littledale, J., said, ‘no privity is shown
between the plaintiff and defendant. This case is precisely
like Crowe v. Rogers and must be governed by it.”

(a) See ante, p. 43. 431 ; 26L.J.Q. B.156; see Whitcher
(b) Rees v. Berrington, 2 Ves. jun. v. Hall, 5 B. & C. 269.
540; 2 White & Tudor, L. C. 2nd ed. (ec) Strange, 592.

814; Pooley v. Harradine, 7 F. & B. (d) 4B. & Ad. 433.
A contract
alfects
parties
only.

222 CHAP. IL, PARTIES TO CONTRACTS.

Certain commissioners let tolls to the defendant at an
annual rent, which the defendant agreed in writing to pay
to the treasurer of the commissioners; it was held that as
the contract was made with the commissioners, and not with
the treasurer, an action could not be brought by the trea-
surer in his own name to recover the tolls (a). The partners
in a cost-book mine agreed that the amount of calls due
from any one of them should be considered as a debt due to
the purser, who should have power to sue for it; but it was
held that such agreement gave the purser no right of action,
as he was merely a servant of the company, and no party to
the agreement (b). Where a contract is made with several
persons jointly, to pay money to one of them only, the right
against the debtor accrues to the joint parties to the con-
tract, and not severally to the person to whom the money is
to be paid ; and all the persons to whom the promise was
made must join in suing upon it, although one only was to
receive the money (¢).

An exception to this rule occurs with simple contracts,
(other than bills of exchange and promissory notes,) in
which the actual party to the contract is an agent for an un-
disclosed principal ; under such contracts the principal, sub-
ject to certain conditions, may-be entitled to claim the be-
nefit of the contract or may be charged with the liability (d).

There are some old decisions to the effect that a stranger
to the contract may maintain an action upon it, if he stand
in such a relationship to the contracting party, that it may
be considered that the contract was made for his benefit ; as
in the case of a contract made with a father to pay money
to his son or daughter, it was formerly held that the son
or daughter might sue upon the contract (e); but no modern
case can be found to support such an exception to the gene-
ral rule. In the recent case of Tweddle v. Atkinson (f), it

(a) Pigott v. Thompson,3 B. & P. (d) Beckham vy. Drake, 9 M & W.
147. 79; 2H.L.C. 579; post, p. 296, 300.
(6) Hybart v. Parker, 4 C. B. N. (e) Bourne v. Mason, Vent. 6;
8. 209; 27 L. J. C. P. 120. Dutton v. Poole, 2 Lev. 211; and see

(ec) Chanter v. Leese, 4 M. & W. per Lord Mansfield, Martyn vy. Hind,
295; and see Jones y. Robinson, 1  Cowp. 487, 443.

x 454; Anderson v. Martindale, (f) 1 B.& 8. 393; 830 L. J. Q. B.

East, 4.97. 265.
SECT. I. OF PARTIES IN GENERAL. 223

appeared that, after a marriage, the fathers of the husband
and wife agreed together to pay each a sum of money to the
husband, and they also agreed that the husband should have
full power to sue for the money; it was held, nevertheless,
that the husband, being no party to the agreement, could
not sue upon it.

The question who are the parties to a contract, where the Contracts
contract is made in writing, is, in general, determined by the ne
written terms. Where an indenture is made inter partes, Pte
the express mention of the parties to the contract negatives
the existence of any other parties. Those persons only can
acquire a right or incur a liability, or can sue or be sued
under the indenture, who are named or described in it as
parties (a). An indenture of lease was expressed to be made
between ‘ A. for and on behalf of B. on the one part and C.
on the other part,” and A. executed the deed in his own
name; it was held that B. could not maintain an action
upon the covenants in the deed, although the covenants were
expressed to be made by C. to and with B (b). A. and B.
by indenture demised to D., who by the same deed cove-
nanted with A. B. and EH. (E. not being named amongst
the parties to the deed), to pay rent to E., to repair, etc. ;
it was held that E., being a stranger to the deed, could not
join with A. and B. in an action for non-performance of the
covenants (c).

A composition deed specified the parties of the first part
as “the several persons whose names and seals are sub-
scribed and affixed in the schedule hereunder written, being
creditors executing these presents ;’”? it was held that credi-
tors who did not execute the deed were not parties to the
deed within the above description, and could not take ad-
vantage of the covenants, although expressed to be made
with the parties of the first part and all other creditors, and

(a) 2 Inst. 673; see the note to (b) Berkeley v. Hardy, 5 B. & C.
Pigott v. Thompson, 3 B. & P. 147, 355; and see Appleton v. Binks, 5
149 (a); Beckham v. Drake,9M.& East, 148.

W. 79, 95; Chesterfield Silkstone (ce) Lord Southampton v. Brown,
Colliery Co.v. Hawkins, 3H.&C.677; 6B. & C. 718.
841. J. Ex. 121.
Contracts
in writing
inter
partes,

224 CHAP. IT. PARTIES TO CONTRACTS.

so were not on an equality with the executing creditors ;
and that therefore the deed was not valid against non-exe-
cuting creditors, under the Bankruptcy Act, 1861, s. 192 (a);
but upon a similar deed expressly made with “ all the cre-
ditors ” and in which the debtor covenanted with each cre-
ditor severally, it was held that all the creditors were parties
to the deed, and could sue upon the covenants (b).

Ifa deed is made in the name of a corporation and sealed
with the common seal, members of the corporation cannot
sue upon it in their individual characters, though they are
mentioned by name in the deed as parties in their official
capacity, because they are not parties to it individually (c).

But parties to a deed may be designated by the name or
description which they use for their trade or business, with-
out mentioning their own proper names. Thus, where a
deed was made with “The City Investment and Advance
Company,” and it appeared that two individuals carried on
a business in that name and were intended in the deed by
that description, it was held that they were parties to the
deed in their individual characters (d). So, where a bond
was made in favour of “ Widow Moller and Son,” the plain-
tiffs, who were proved to be the persons meant by that name,
were held entitled to sue upon it (e). In a composition deed
made between the debtor of the one part and “ all the cre-
ditors”’ of the other part, the creditors were held to be suf-
ficiently designated as parties, and entitled to sue upon the
covenants made by the debtor with the creditors (f).

Where a covenant is made in the form of a deed poll,
which does not contain any formal statement of the parties
to whom it is made, the covenantee appears as a party to
the covenant merely from the designation of him by the co-
venantor ; and it is not necessary that the covenantee should
be named, but he may be designated by a sufficient de-

(a) Chesterfield and Midland Silk-
stone Colliery Co. v. Hawkins, 3 H.
& C. 677; 384L. J. Ex. 121; Gurrin
vy. Kopera, 3H. & C. 694; 341. J.
Ex. 128; and see Ex p. Cockburn,
33 L. J. B. 17.

(b) Gresty v. Gibson, 4H. & C. 28;
L. Rep. 1 Ex. 112; 35 L. J. Ex. 74;
Reeves v. Walts, L. R. 1 Q. B. 412;

35 L. J. Q. B. 171.
(c) Cooch v. Goodman, 2 Q. B. 850
(d) Maugham y. Sharpe, 17C. B.
N.S. 443; 384 L. 5.0. P. 19.
(e) Moller y. Lambert, 2Camp. 548.
(7) Gresty v. Gibson, 4H. & C.
28; L. Rep. 1 Ex. 112; 35 L. J. Ex.
74; Reeves v. Watts, L. Rep.1Q. B.
412 ; and see supra.
SECT. I. OF PARTIES IN GENERAL.

lo

25

scription. A policy of insurance was made in the form of a Contracts
deed poll, in which the insurers covenanted to pay the loss »,w"tne
and damage insured against, without specifying the cove- partes.
nantee by name; it was held that the parties interested in

the insurance were sufliciently designated to entitle them to

sue upon the covenant (a).

A simple contract in writing, expressed to be made inter
paites, also impliedly excludes all partiés not named or de-
scribed in it as such ; for to admit evidence to make a person
a party to such an agreement who was not so named or de-
scribed in it, would amount to altering the effect of a written
instrument by extrinsic evidence (b). But with simple con-
tracts, except bills of exchange and promissory notes, if the
persons named or described as the actual parties are agents
for others whose names do not appear, extrinsic evidence may
be admissible in order to entitle the principal to the benefit
of the contract or to charge him with the liability (¢).

An exception to the rule that no person can sue upon a
deed or agreement titer partes, except the parties to it, has
been made by some statutes relating to public companies
and other public bodies; for instance, by the Joint Stock
Banking Companies Act, 7 Geo. IV. c. 46, s. 9, all proceed-
ings at law or in equity, for or on behalf of such copartner-
ships, are to be prosecuted in the name of one of the public
officers of the copartnership ; and under this Act it is held
that upon a covenant made to covenantees by name, as
trustees of the company, the company is bound to sue by
its public officer, and cannot sue otherwise (d). Another
exception has been made to this rule by the Act to amend
the law of real property (8 & 9 Vict. c. 106) which enacts
by s. 5, “that under an indenture, executed after the
1st October, 1845, the benefit of a covenant respecting any
tenements or hereditaments may be taken, although the
taker thereof be not named a party to the same indenture.”

(a) Sunderland Marine Insurance 79;2H.L. C. 579; post, p. 297, 302.

Co. v. Kearney, 16 Q. B. 925; 20L.J. (d) Chapman vy. Milvain, 5 Ex. 61;
Q. B. 417. aud see like exceptions under other

(b) Robinson v. Judkins, 26L. J. statutes, Smith v. Goldsworthy, 4 Q.
Ex. 56. B.480; Cobham v. Holcombe, 8 C. B.

(c) Beckham vy. Drake, 9M. & W. N.S. 815.
Q
Liability of

infant on
contracts.

Liability of

infant for
wrongs.

226 CHAP. II. PARTIES TO CONTRACTS.

Cuap. II. Secor. Il. Capacrry or Parties.

ATLANES ss canavedeancnwvieniinsions 226 | Persons in a State of Insanity... 247
Married Women .............44 234 | Corporations............006 cesses 250

A pERson is presumed by law capable of being party to a
contract until the contrary appears; but persons in some
states or conditions, as infants, married women, and persons
in a state of insanity ; and persons of certain kinds as cor-
porations, are affected by law with various degrees of inca-
pacity in that respect, the nature and effect of which have
now to be considered.

Contracts with infants.

An infant, or person under the age of twenty-one years,
cannot validly bind himself to another by contract, except
for necessaries suitable to his age, condition, and wants. A
contract made by an infant, except for necessaries, may be
avoided by him on the ground of his infancy ; and in an ac-
tion brought against him upon the contract, he may defend
himself by pleading specially that at the time of making it
he was an infant (a).

The defence of infancy cannot be pleaded in actions for
wrongs independent of contract; but it may be pleaded in
all cases where the cause of action is substantially founded
on a contract, though the declaration might be framed in the
form of tort instead of in contract; so that the plaintiff can-
not indirectly make the defendant liable on a contract made
during infancy by merely changing the form of his declara-
tion (b). But where the defendant has wrongfully obtained
money of the plaintiff under such circumstances that the
plaintiff is entitled to waive the wrong, and claim restitution
of the money under an implied contract in an action for
money received for his use, it has been held that the defend-
ant cannot plead infancy in such action (c).

(a) See Reg. Gen. 8, T. T. 1853. C. B.N. 8.45; 32 L. J. OC. P. 189.
(b) Jennings v. Rundall, 8 T. R. (ec) Per Lord Kenyon, Bristow v.
335 ; and see Burnard vy. Haggis, 14 Eastman, 1 Esp.172; seo ante, p. 48.
SECT. IT. CAPACITY OF PARTIES. 227

Where an infant has induced another party to contract Liability of
with him by a fraudulent representation that he was of full pee.
age, he is not estopped from asserting his infancy in order gueet by
ie avoid the contract ; nor can he be charged with the lone”
which may arise from the invalidity of the contract, as damage
caused by his fraudulent representation, in an action founded
on the fraud as a substantive wrong (a). In an action at law
upon the contract, to which infancy is pleaded, the fraudu-
lent misrepresentation does not constitute matter for repli-
cation upon equitable grounds ; for infancy is an answer in
equity, as well as at law, to any proceeding upon the con-
tract (b). But a Court of Equity will not allow the legal
privilege of infancy to be used for the purpose of fraud, and
will compel restitution of what has been obtained by an
infant through a contract induced by the fraudulent repre-
sentation that he was of full age (¢).

Where a person by means at a contract becomes possessed Liability of

of real estate or other permanent property to which certain ere
obligations are incident, he remains lable to those obliga- property.
tions as long as he continues possessed of the property ; and
he cannot avoid them simply on the ground that he was an
infant at the time of making the contract under which he
has acquired the property; in order to discharge himself
from such obligations he must not only disaffirm the con-
tract, but must also disclaim, and get rid of the property.
Thus, if an infant lessee takes possession, he becomes lable
to the rent and other obligations incident to the estate, so
long as he remains in possession, and until he disagrees to
the estate (d).

So, in an action against the registered holder of shares in
a railway company for calls due upon the shares, the plea
that when he was registered as the holder of the shares, and

(a) Johnson v. Pye, 1 Lev.169; 1 Banking Ass..3 De G. & J. 68; 27 L.
Keb. 913; Price v. Hewett, 8 Ex. J.B. 33; and see Nelson v. Stocker,
146 ; and see Liverpool Adelphi Loan 4DeG. & J. 458; 28 L. J.C. 760.
‘Ass. v. Fairhurst, 9 Ex. 422; Wright (d) Kirton v. Eliott, 2 Bulstr. 69 ;
vy. Leonard, 11 C. B.N.8. 258; 30L. 8. C. nom. Ketley’s case, Brownl. 120;

J. C. P: 365. Ketsey’s case, Cro. Jac. 320; and see
(6) Bartlett y. Wells, 1 B. & 8. North Western Ry. Co.v. M‘Michael,
836; 31 L. J. Q. B. 57. 5 Ex. 114,126; Evelyn v. Chichester,

(c) Ib.; Ex p. Unity Joint Stock 3 Burr. 1717.
Q 2
Money paid

by infant
under a
contract.

228 CHAP. Il, PARTIES TO CONTRACTS.

when he ‘became indebted, he was an infant, was held bad ;
because it showed that the interest in the shares remained
vested in him, and the obligation to pay was incident to the
interest in the shares (a). Nor, in such case, is it sufficient
for the defendant to plead, besides the infancy at the time of
acquiring the shares, that he had derived no advantage from
them, and had never ratified or confirmed the purchase of
them (0).

But where the defendant, charged by a railway company
with calls on shares, pleaded that he became the holder of the
shares under the subscription contract, and that at the time
of contracting he was an infant, and that while he was an
infant he repudiated the contract, and gave notice to the
company that he held the shares at their disposal, the plea
was held good; because it showed that the defendant had
done all he could to disclaim the shares, and that his name
remained on the register only by the fault of the plaintiffs
in n0t striking it out (c).

Where an infant has paid money under a contract for
which the consideration remains executory, he may repu-
diate the contract and recover the money paid, as upon an
entire failure of consideration (d). Thus, a minor having
signed a written agreement to purchase a share of a business
at a certain price, and to pay down part of the purchase
money as a deposit, which was to be forfeited on breach of
the agreement, he was held entitled on coming of age, hav-
ing then taken no benefit under the agreement, to repudiate
it altogether, and to recover the amount of the deposit, in
an action for money received for his use (e).

But if the infant has in part received the consideration,
though he may disaffirm the contract, he cannot recover
the money paid under it, because the failure of consideration
is not complete. Thus, an infant having paid a sum as a
premium for a lease, which he enjoyed during his minority,
but avoided after coming of age, it was held that, though

(a) Cork and Bandon Ry. Co. v. (c) Newry and Enniskillen Ry. Co.
Cazenove, 10 Q. B. 935; Birkenhead  y. Coombe, 3 Ex. 565.
Railway Co. v. Pilcher, 5 Ex, 121. (d) See ante, p. 60.

(b) North-Western Ry. Co. vy. (e) Corpe v. Overton, 10 Bing. 252.

M‘Michael, 5 Vix. 114.
SECT. Il, CAPACITY OF PARTIES. 229

he might avoid the lease and escape the burden of the rent
and covenants, he could not recover the sum paid as a pre-
mium, because he had partially enjoyed the consideration for
it (a) ; and where an infant had paid a sum of money for ad-
mission into a partnership and had executed the deed of part-
nership and acted as partner, receiving money out of the pro-
fits, he was held not to be entitled to recover the money (8).
So, though an infant who buys things, not necessaries, can-
not be compelled to pay for them ; yet, having paid for them,
he cannot recover back the money (c).

A person after attaining the age of twenty one years may Ratification
ratify and confirm a contract made by him during infancy, a at
and so make it absolutely binding (d). “‘The principle on
which the law allows a party, who has attained his age of
twenty-one years, to give validity to contracts entered into
during his infancy is, that he is supposed to have acquired
the power of deciding for himself, whether the transaction
in question is one of a meritorious character, by which in
good conscience he ought to be bound” (e).

By Lord Tenterden’s Act, 9 Geo. IV. c. 14, s. 5, it is
enacted, “‘ that no action shall be maintained whereby to
charge any person upon any promise made after full age to
pay any debt contracted during infancy, or upon any ratifi-
cation after full age of any promise or simple contract made
during infancy, unless such promise or ratification shall be
made by some writing signed by the party to be charged
therewith.” The Mercantile Law Amendment Act, 1856,
19 & 20 Vict. c. 97, has not taken away the necessity of
the ratification being signed by the party himself; although
it has done so in the analogous case of promises to pay debts
barred by the Statute of Limitations, by giving effect to such
promises when signed by an agent of the party (/).

The ratification of a promise made during infancy has

(a) Holmes v. Blogg, 8 Taunt. 508. 724; Williams v. Moor, 11M. & W.
(b) Ex p. Taylor, 8 De G. M. & = 256, 266.

G. 254; 25 L. J. B. 35. (e) Williams v. Moor,11 M. & W.
(ec) Per Lord Kenyon, Wilson v. 256, 264.
Kearse, Peake Ad. Ca. 197. (f) See 8.13; post, Chap. IV, Sect.

(d) Cohen vy. Armstrong, 1M.&S. XT, “ Limitations.”
230 CHAP. Il. PARTIES TO CONTRACTS.

ee been compared to the ratification of an act of an agent, and

fulluge. it has been laid down that, apart from Lord Tenterden’s
Act, “any act or declaration which recognises the existence
of the promise as binding is a ratification of it, as, in the
case of agency, anything which recognises as binding an
act done by an agent, or by a party who has acted as agent,
is an adoption of it;” and that under Lord Tenterden’s
Act, “ any written instrument signed by the party,-which in
the case of adults would have amounted to the adoption of
the act of a party acting as agent, will in the case of an
infant who has attained his majority amount to a ratifica-
tion” (a). A writing signed by the defendant containing an
admission of the debt, was held sufficient to satisfy the sta-
tute, although without address, or date, and not stating the
amount of the debt, or the name of the creditor, these
matters being supplied by parol evidence (4). A ratifica-
tion will be presumed to have been made after full age in’
the absence of evidence to the contrary (c). If the original
contract made by the infant was by deed, it can only be
ratified by deed, or by something amounting to an estoppel
in law of as high authority as the deed itself (d).

Ratification In cases where the infant has by means of contract become

of liability i d : he gcat aie Mee

incident fo possessed of property having obligations and liabilities inci-

property dent to it which he might disaffirm on coming of age, he
should do so within a reasonable time, otherwise the fact of
retaining possession of the property may operate as a con-
firmation of the transaction (e). Thus, an infant who takes
a lease of land, by continuing in possession after coming of
age, affirms the contract, and is liable for the rent and cove-
nants (f). So, if an infant makes a lease, and accepts rent
after coming of age, he thereby.affirms the lease, and pre-
cludes himself from avoiding it on the ground of infancy (y).

(a) Harris vy. Wall,1 Ex.122,1380; 10 Q. B. 985; Holmes v. Blogg, 8
and see Mawson v. Blane, 10 Ex. 206. Taunt. 35.

(b) Hartley v. Wharton, 11 A. & E. (f) Kirton vy. Eliott, 2 Bulstr. 69;
934; Hunt v. Massey,5 B.& Ad. 902. 8S. C. nom. Ketley’s case, Brownl.
(c) Hartley v. Wharton, supra. 120; nom. Hetsey’s case, Cro. Jac.

(d) Baylis ¥. Dineley,3M.&8.477. 320; see Baylis vy. Dineley, 3 M. & 8.
(ce) See ante, p. 227; Dublin & 477, 481.
Wicklow Ry. Co. v. Black,8 Ex. 181; (9) Ashfield v. Ashfield, Sir W.
Cork § Bandon Ry. Co. vy. Cazenove, Jones, 157.
SECT. II. CAPACITY OF PARTIES. 231

An infant who has been admitted to a copyhold estate, and
has retained possession after coming of age, affirms the
admittance, and is liable for the fines due upon it (a). An
infant who was registered as the holder of shares in a com-
pany, by permitting his name to continue registered after
he came of age, was held to have ratified his ownership of
the shares (6). So, an imfant member of a partnership, who
did nothing to disaffirm the partnership upon coming of age,
was held to continue as partner, and to be liable on contracts
subsequently made by the firm (c).

The ratification may be made upon a condition or to a Limitedand
limited extent. Thus, a person may promise to pay a debt Songitional
incurred during infancy “ when he is able ;”? and such new
promise is binding upon him conditionally on his becoming
able to pay (d).

A contract made with an infant, although voidable by the right of
infant, is binding on the other party to it until avoided; and peel
it cannot be avoided by him on the ground of the infancy of
the person with whom he has contracted. In an action
on a contract: containing mutual promises of marriage, the
defendant pleaded the infancy of the plaintiff; but the
Court held that the contract was not void, but only voidable
at the election of the infant; and that, though the infant has
the privilege of election, the party with whom he has con-
tracted has not, but is bound to the infant (ec). It is not
necessary for an infant to wait until he comes of age in
order to bring an action upon a contract; he may sue upon
it, by his next friend, during his minority (f). But a Court of
Equity will not grant specific performance of a contract in
favour of an infant, because the remedy is not mutual (g) ;
after the infant has come of age and has adopted the con-
tract, he may obtain specific performance (/).

(a) Evelyn v. Chichester, 3 Burr. (d) Cole v. Saxby, 3 Esp. 160.
1717. (e) Holt v. Clarencieux, 2 Str.

(0) Cork & Bandon Ry. Co. v. 987. :
Cazenove, 10 Q. B. 985; and see (f) Warwick v. Bruce,2 M.&8.
Dublin § Wicklow Ry. Co.v. Black, 205.

8 Ex. 181. (g) Flight v. Bolland, 4 Russ. 298.
(ce) Goode v. Harrison, 5 B. & Ald. (h) Clayton v. Ashdown, 9 Vin. Abr,
147. 393, pl. 4.
Contract of
infant for
necessaries,

232 CHAP. IT. PARTIES TO CONTRACTS.

An infant may validly contract to pay for necessaries sup-
plied to him suitable to his condition in life. ‘An infant
may bind himself to pay for his necessary meat, drink, ap-
parel, necessary physic, and such other necessaries, and
likewise for his good teaching or instruction, whereby he
may profit himself afterwards” (a).

The principles upon which the law determines what are
necessaries for which an infant may validly contract to pay
are explained in the judgment in the case of Chapple v.
Cooper, as follows :— Things necessary are those without
which an individual cannot reasonably exist. In the first
place, food, raiment, lodging, and the like. About these there
isno doubt. Again, as the proper cultivation of the mind is
as expedient as the support of the body, instruction in art
or trade, or intellectual, moral, and religious information
may be a necessary also. Again, as man lives in society,
the assistance and attendance of others may be a necessary
to his well-being. Hence attendance may be the subject of
an infant’s contract. Then the classes being established,
the subject-matter and extent of the contract may vary
according to the state and condition of the infant himself.
His clothes may be fine or coarse according to his rank ; his
education may vary according to the station he is to fill;
and the medicines will depend on the ills with which he is
afflicted, and the extent of his probable means when of age.
So, again, the nature and extent of the attendance will de-
pend on his position in society ; and a servant in livery may
be allowed to a rich infant, because such attendance is com-
monly appropriated to persons in his rank of life. But in
all these cases, 1t must first be made out that the class itself
is one in which the things furnished are essential to the
existence and reasonable advantage and comfort of the infant
contractor. Thus, articles of mere luxury are always ex-
cluded, though luxurious articles of utility are in some cases
allowed. So, contracts for charitable assistance to others,
though highly to be praised, cannot be allowed to be bind-
ine, because they do not relate to his own personal adyan-

(a) Co. Lit. 172 a.
SECT. II. CAPACITY OF PARTIES. 233

tage. In all cases there must be personal advantage from
the contract derived to the infant himself” (a).

In accordance with the above principles, it has been de-
cided that, a livery for a servant may be necessary for an
infant requiring such an attendant (b); a horse may be
necessary (c); regimental clothes may be necessary for an
infant who is a member of a volunteer corps (d); dinners
supplied to an undergraduate at the university at his private
rooms are prima facie not necessaries (e).

As the law permits an infant to make a valid contract of
marriage, all necessaries furnished to his wife and children
are, in point of law, necessaries for the mfant; and a con-
tract for necessaries supplied to an infant’s wife and legiti-
mate children is good, and cannot be avoided on the ground
of infancy, any more than a contract for food or education
supplied to the infant himself (f/f). So, an infant may
validly contract for the funeral of his deceased wife, as a
necessary ; and so, likewise, may an infant widow validly
contract for the funeral of her deceased husband (g). A
marriage settlement suitable to her estate and condition is
necessary for an infant upon her marriage; and if she retains
a solicitor to prepare it, the liability to pay his bill is trans-
ferred by the marriage to the husband (jh).

An infant may contract a debt for necessaries, notwith-
standing he has a sufficient income to supply himself with
ready money (i) ; and the party supplying necessaries to an
infant is not, as a general rule, bound to inquire into his
circumstances before giving credit to him (7); but the fact
of the infant being properly provided with any article is
material with regard to the question of the necessity of a
further supply of the same article (hk).

(a) 13 M. & W. 252, 258; and see

Peters v. Fleming, 6 M. & W. 42;
Wharton v. Mackenzie, 5 Q. B. 606.
(b) Hands v. Slaney, 8 'l'. R. 578.
(ec) Harrison v. Fane, 1 M. & G.
550;- Hart v. Prater, 1 Jur. 623.
(d) Coates v. Wilson, 5 Esp. 152.
(e) Brooker v. Scott, 11 M. & W.67;
Wharton v. Mackenzie, 5 Q. B. 606.
(f) Chapple v. Cooper,13 M.& W.
252, 259; and see Turner v. Trisby,
1 Stra. 168.

(9) Chapple v. Cooper, 13M. & W.
252.

(h) Helps v. Clayton, 17 C. B.N.S.
558; 34L. J.C. P.1.

(() Burghart v. Hall, 4 M. & W.
727.

(7) Brayshaw v. Eaton, 5 Bing.
N. C. 231; Dalton v. Gib, 5 Bing.
N, C. 198.

(k) Bainbridge v. Pickering, 2 W.
Bl. 1325; Burghart v. Angerstein, 6
C. & P. 690,
234 CHAP. II. PARTIES TO CONTRACTS.

Whether articles supplied are necessary or not, within
the above description, is a question of fact for the jury to

decide (a).
Securities An infant cannot be charged on a bill of exchange accepted
ry te by him even for necessaries (2) ; nor on an account stated in
necessaries. respect of a debt due for necessaries (c) ; nor can an infant
bind himself by executing a cognovit (d), or a bond (e), for a
debt due for necessaries. Where an infant borrowed money
for the purpose of providing himself with necessaries, and
afterwards devised his lands to trustees for payment of his
debts, the debt contracted during infancy was held to be

within the trust (f).
Contracts with married women (q).
Liability of | A married woman is legally incapable during marriage of

ee making a contract to bind herself personally (h).

ee By the rules of procedure in actions at law a wife cannot
her. sue or be sued alone without joining her husband as a joint

party with her, except where her husband is civilly dead (i).
If she sues or is sued alone, and the objection arises only on
the ground of the irregularity of procedure in not joining
the husband, and not upon the merits of the action, as where
the action is upon a contract made by the wife before mar-
riage, the objection can only be taken by a plea in abate-
ment (j) ; but if a married woman is sued alone upon a con-
tract made after marriage, the defence that she is incapable
of binding herself by contract is a defence upon the merits
of the action, and may be pleaded in bar (i). A married
woman cannot be sued jointly with her husband on promises

(a) Peters v. Fleming,6 M. & W. (g) As to the effect of marriage upon
42; Harrisonv. Fane,1M.&G.550; contracts previously made, see post,
Wharton vy. Mackenzie, 5 Q. B. Chap. VI, Sect. II, “ Assignment of

606. Contracts by Marriage.”

(6) Williamson v. Watts, 1 Camp. (2) See the second resolution of all
552; and see Harrison y. Cotgreave the judges in Manby v. Scott, 2
4.C. B. 562. Smith’s L. C. 5th ed. 375; Morris v.

(ce) Trueman v. Hurst, 1 T. R.40; Norfolk, 1 Taunt. 212; France y.
Ingledew v. Douglas, 2 Stark. 36. White, 1M. & G. 731.

(d) Oliver vy. Woodroffe, 4 M. & (i) Hatchett vy. Baddeley, 2 W. Bi.
W. 650. 1079, 1082 ; Lean v. Schutz, 2 W. Bl.

(e) Co, Lit. 172 a; Baylis vy. Dine- 1195, 1199.
ley, 3M. & 8. 477, 482. (J) Milner v. Milnes, 3 T. R. 627 ;

(f) Marlow v. Pitfield, 1 P. Wm. Lovell v. Walker, 9 M. & W. 299.
558. (kh) Burch vy. Leake,7 M. & G. 377.
SECT. Tl. CAPACITY OF PARTIES. 235

made after the marriage, because from her incapacity of
contracting it is impossible she can be bound (wu). The
defence of coverture must be specially pleaded (8).

In the case of a contract made with a married woman,
which is executory on her part, as she is incapable of bind-
ing herself, the contract is void for want of consideration ;
thus, where a person delivered furniture to a married woman
under a contract of hire, it was held that the contract was
void and did not divest him of the present right to the pos-
session of the goods, which, therefore, could not be taken in
execution at the suit of the husband’s creditors (c).

A married woman, being unable to contract, cannot re-
new her liability for a debt incurred before marriage, so as
to take it out of the operation of the statutes of limitation (d).

“ As a general rule, a married woman is answerable for Contract
her wrongful acts, including frauds, and she may be sued in Se
respect of such acts, jointly with her husband, or separately married
if she survives him. Inasmuch, however, as she is not liable eats
upon her contracts, the common law, in order effectually
to prevent her being indirectly made lable, under colour of
a wrong, exempts her from liability, even for fraud, where it
is directly connected with the contract with the wife, and
is the means of effecting it, and parcel of the same trans-
action” (e). Thus, an action will not le against husband and
wife for a fraudulent representation by the wife that she was
unmarried, whereby the plaintiffs were induced to take her
promissory note (f). Where the wife fraudulently repre-
sented that a bill of exchange was accepted by her husband,
whereby the plaintiff was induced to discount it, the Court
was equally divided as to whether an action would he; the
judges on the one side holding that the fraudulent repre-.
sentation was in the nature of a warranty or contract, and
the judges on the other side holding that it was not con-
nected with any contract (g). Where a married woman
ji (a) See Francev. White, 1M.&G. Fairhurst, 9 Hx. 422, 429; 23 L. J.

31

Ex. 168,165; see Wright v. Leonard,
(b) Reg. Gen. 8,T.T. 1853; Moss 11 C. B. N.S. 258, 266; 30L. J.C. P.

v. Smith, 1 M. & G. 228. 365, 367.
(c) Smith v. Plomer, 15 East, 607. (f) Liverpool Adelphi Loan Ass. v.
(d) See post, Chap. IV, Sect. XI,  Fatrhurst, 9 Ex. 422.

“ Limitations.” (g) Wright v. Leonard, 11C.B.N.

(e) Liverpool Adelphi Loan Ass.y. 8. 258; 30 L. J.C. P. 365.
Liability of

married wo-
man, when
husband is
civilly dead.

As sole
trader by
custom of
London.

Effect of
separation
by agree-
ment,

236 CHAP. II. PARTIES TO CONTRACTS.

signed a promissory note with the description “ widow,” it
was held that such representation did not bid her by way
of estoppel, but that under the plea of coverture she might
prove that she was married at the time of making the
note (a).

If the husband is civilly dead, the wife may sue or be
sued alone and acquires a capacity to make a contract
which binds herself personally (b). The husband is deemed
to be civilly dead, and the wife may be sued alone on her
contract, where the husband is under sentence of transpor-
tation (c) ; and, formerly, the husband was so deemed, when
he was professed in religion (d).

A married woman does not acquire a separate capacity by
reason of her husband being an alien, though he resides
abroad (e); nor by his becoming an alien enemy (f); nor by
his becoming bankrupt, and absconding to avoid surrender-
ing, and residing abroad (q).

By the custom of the City of London a married woman
may carry on business as a sole trader in the city, and may
bind herself by contracts made in the way of the business ;
but the husband must be joined in an action against her,
even in the city courts (1).

A man and his wife cannot by any act or agreement
change their legal relationship and character, so as to en-
able the wife to contract and render her liable to an action,
as if she were sole and unmarried. Accordingly, a wife,
living apart from her husband under a deed of separation
by which her husband had secured to her a separate main-

(a) Cannam v. Farmer, 3 Ex. 698.
_ (0) Co. Litt. 1826; Hatchett vy.
Baddeley, 2 W. Bl. 1079, 1082; Lean
v. Schutz, 2 W. BI. 1195, 1199;
Jones v. Smith, 83 M. & W. 526, 527.
Under such circumstances she may
be made bankrupt, see Bx p. Franks,
7 Bing. 762; and may make a will,
In the goods of Coward, 34 L:.J.P.120.

(ce) Carrol vy. Blencow, 4 Esp. 27 ;
see Lx p. Franks,7 Bing. 762; In the
Goods of Coward, 34 L. J. P. 120

(d) Co. Litt, 132 &.

(e) Strefton vy. Busnach, 1 Bing. N.
C.139; Barden y, Keverberg, 2M. &
W. 61, 64.

(f) De Wahl vy. Braune, 1H.&N.
178; 25 L. J. Ex. 343; see Derry v.
Duchess of Mazarine, 1 L. Raym.
147 ; Salk.646 ; Barden v. Keverberg,
2M. & W. 61, 65.

(9g) Willamson v. Dawes, 9 Bing.
292; and see Alarsh v. Hutchinson,
2B. & P. 226.

(h) Beard vy. Webb, 2B. & P. 93;
and see Caudell v. Shaw, 47. R. 361;
a married woman, as a sole trader in
London, may become bankrupt, and
her assignees are entitled to her trade
effects and debts. Lavie v. Phillips,
3 Burr. 1776.
SECT. II. CAPACITY OF PARTIES.

Lo

37
tenance, was held not to be liable on a contract made by
her (a) ; and a wife, who had separated from her husband
and was living in open adultery, was held not liable on a
contract made by her in that state (b).

A sentence of divorce @ mensa et thoro pronounced in the
Ecclesiastical Court did not affect the legal incapacity of
the wife to bind herself by contract (-). The Divorce and
Matrimonial Causes Act, 20 & 21 Vict. c. 85, took away the
jurisdiction of the ecclesiastical courts in matrimonial mat-
ters, and established the Court for Divorce and Matrimonial
‘ Causes, which has power under the Act, in certain cases, to
declare a marriage to be dissolved; the effect of which is to
restore the wife to the position of a single woman (d) ; and
the Court has power, in certain other cases, to pronounce a
decree for a judicial separation.

By that Act, s. 26, it is enacted that “in every case of a
judicial separation, the wife shall, whilst so separated, be
considered as a feme sole for the purposes of contract, and
wrongs and injuries, and suing and being sued in any civil
proceeding; and her husband shall not be liable in respect
of any engagement or contract she may have entered into,
or for any wrongful act or omission by her, or for any costs
she may incur as plaintiff or defendant ; provided, that where
upon any such judicial separation alimony has been decreed
or ordered to be paid to the wife, and the same shall not be
duly paid by the husband, he shall be lable for necessaries
supplied for her use.”

By the same Act, s. 21, it is enacted to the effect that a
wife deserted by her husband may obtain an order of a ma-
gistrate or of the Court protecting her earnings and pro-
perty, acquired since the commencement of such desertion,
from her husband and all creditors and persons claiming
under him, and such earnings and property shall belong to
the wife as if she were a feie sole. And “ the wife shall
during the continuance of such order of protection be and
be deemed to have been, during such desertion of her, in

(a) Marshall vy. Rutton, 8T. R. (c) Faithorne v. Blaquire, 6 M.&8.
5415. . 73; Lewis v. Lee, 3 B. & C. 291.

(6) Meyer vy. Haworth, 8 A. & E. (d) See Wells v. Malbon, 31 Beav.
467. 48; 31 L. J. 0. 344,

Divorce.

Judicial
separation.

Order of
protection
of property.
Effect of
contracts
upon her
separate
property

in equity.

238

the like position in all respects, with regard to property and
contracts, and suing and being sued, as she would be under
this Act if she obtained a decree of judicial separation.” An
order of protection obtained by a wife under this section,
though it protects the property acquired by her since the
commencement of the desertion, does not entitle her to main-
tain an action commenced before the date of the order (a).

CHAP. II. PARTIES TO CONTRACTS.

In equity a married woman may have property settled
to her separate use, which she may dispose of in the same
manner as if she were a feme sole. In exercise of her right
of disposing of her separate property she may charge it with
the liability to satisfy contracts made by her; and an en-
gagement or security entered into by her, showing an in-
tention to charge her separate property, will have that
effect (b).

It is presumed, in general, that a contract or engage-
ment made by a married woman in writing imports an in-
tention to charge her separate estate, otherwise the writing
would have no meaning; if not in writing, it must be proved
that the engagement was entered into with an intention on
the part of the married woman of charging her separate
estate, in order to render it subject to the liability (c). Thus,
the bonds, bills of exchange, and promissory notes of a mar-
ried woman, are presumptively payable out of her separate
estate (a).

The separate estate of a married woman has been held
liable to the payment of her solicitor’s bill of costs imcurred
upon her retainer (e); also for rent under an agreement
made by her to take a lease of a house(f). But it seems
that the separate estate of a married woman cannot be

(a) Midland Ry. Co. v. Pye, 10 C.
B.N.8.179; 30 L.J. C. P. 314.

(6) Hulme v. Tenant, 1 Bro. C. C.
16; Francis v. Wigzell, 1 Madd. 258,
261; Aylett v. Ashton, 1 My. & Cr.
105, 111; Owens v. Dickinson, Cr. &
Ph. 48; Shattock v. Shattock, L. Rep.
2 Eq. 182; 3851. J. C. 509.

(c) See Heatley v. Thomas, 15 Ves.
596; Shattock vy. Shattock, L. Rep.
2 Hq. 182,192; 85 LJ. C. 509, 515;

Vaughan v. Vanderstegen, 2 Drew.
165, 180; 23 L. J. C. 793, 798;
Johnson v. Gallagher, 30 L. J. C. 298.
(d) Tullett v. Armstrong, 4 Beay.
319, 323; sce cases cited by L. J.
Turner in Johnson vy. Gallagher, 30
L. J. C. 298, 306.
oon Murray v. Barlee,3 M. & K.

(f) Gaston v. Frankum, 2 De G.
& Sm. 561,
SECT. II. CAPACITY OF PARTIES. 239

charged with contracts implied in law against her without
any specific engagement on her part, as an implied contract
to repay money received by her for the use of another (a).

If a married woman has property settled to her separate
use for life only with a general power of appointment by
deed or will, she must duly exercise the power in order to
charge the property after her death, otherwise the property
will pass as in default of appointment; and the execution of
the power will operate only according to the terms of the
instrument of execution, so that her debts and engagements
are not charged upon the property unless she has so ap-
pointed. The mere execution by a married woman of a ge-
neral power by will does not render the property assets for
payment of creditors, as in the case of such execution of a
power: by a person other than a married woman (0).

Upon the death of a married woman possessed of sepa-
rate property absolutely, it seems that the debts and en-
gagements charged upon it are payable, as charges, in order
of priority, and not pari passu, as in the course of adminis-
tration of assets (c).

In equity, a married woman may contract with her hus-
band in respect of her separate estate, and in reference to
any matter as to which she can be regarded for the purpose
of the contract as in the position of a feme sole (d).

The doctrine that a married woman having separate pro-
perty could bind herself by contract at law was laid down
and acted upon by Lord Mansfield, C.J. (c), but overruled
by the unanimous decision of all the judges in the case of

Marshall vy. Rutton (f).

A person may become bound by a contract made with a Rights of
married woman ; and the husband acquires the right to in- med

| rs woman
tervene and claim the performance of it. under
(a) Jones v. Harris, 9 Ves. 486; (c) Shattock vy. Shattock, L. Rep.
Aguilar vy. Aguilar, 5 Madd. 414; 2 Eq. 182,194; 35 L. J. C. 509, 516.
Wright v. Chard, 4 Drew. 673; 29 L. (d) Vansittart v. Vansittart, 4 K.
J.C. 82. & J.62; 27 L. J. 0. 222.

(0) Vaughan v. Vanderstegen, 2 (e) Corbett v. Poelnitz, 1T. R. 5,
Drew. 165; 23 L. J. C. 793; Shat- adhered to in Compton vy. Collinson,
tock v. Shattock, L. Rep. 2 Eq. 182; 2 Bro. C. C. 377, 885; 1H. Bl. 334,
365 L. J. C. 509; see Jenney v. An- (f) 8 T. R. 545; see Murray v.
drews, 6 Madd. 264. Barlee, 3 M. & K. 209, 221.
contracts
made with
her (a).

Contract
made with
husband
and wife
jointly.

Where

wife may be

joined with
usband in

suing upon

contract.

240 CHAP. II, PARTIES TO CONTRACTS.

The husband may sue alone upon contracts made in favour
of his wife during the coverture (9); as, upon a bond given
to the wife the husband may sue during the coverture in his
own name (sc). So, upon a promissory note made to a
wife in her name during the coverture the husband may
sue in his own name only (d); and the husband alone can
indorse it (e); the wife cannot indorse it in her own name,
and can indorse it in her husband’s name only as his agent
and with his authority (f).

On a bond or covenant made to both husband and wife
jointly, the husband may sue alone (g). On a bond given

‘to a husband and his wife, as administratrix of a deceased

person, it was held that the husband might sue alone as if
the bond were made to himself (hk). A lease was made by
a husband and wife, and the covenants were made to them
jointly ; it was held that the husband might sue alone upon
the covenants, as being in legal effect made to himself
alone (i).

Where the promise is made to the wife upon a conside-
ration moving from her, or, as it is termed, where the wife
is the meritorious cause of action, the husband may assent
to give the wife an interest in the contract, and join her in
the action (7). A promise was made to a married woman,
in consideration that she should cure a certain wound, to
pay unto her £10; it was held that the wife might be joined
in the action, because the consideration was a performance
by her ; and that the action would survive to the wife upon
the death of the husband (s). A husband and wife declared

(a) As to the effect of marriage
upon contracts previously made, see
post, Chap. VI, Sect. I], “ Assign-
ment of Contracts by Marriage.”

(2) See Bidgood v. Way, 2 W. BL.
1236, 1239.

(c) Day v. Pargrave, cited 2M. &
8. 396.

(d) Burrough y. Moss, 10 B. & C.
558 ; and see Howard v. Oakes, 3 Ex.
136, 140; and see Af‘ Neilage v. Hol-
loway, 1 B. & Ald. 218.

(e) Mason y. Morgan, 2A. & E.
ra Dawson vy. Prince, 27 L, J. C.
169,

(f) Connor v. Martin, 1 Str. 516;
Barlow y. Bishop, 1 East, 432; and
see Cotes vy. Davis, 1 Camp. 485.

(g) Arnold vy. Revoult, 1B. & B.
443; Ankerstein v. Clark, 4T. R.
616.

(h) Ankerstein v. Clark, supra.

(i) Arnold vy. Revoult, supra; see
Hill y. Saunders, 4 B. & C, 529.

() See Bidwood +. Way, 2 W. Bl.
1236, 1239; Rose v. Bowler, 1 H. Bl.
108, 114.

(k) Brashford vy. Buckingham, Cro.
Jac. 77.
SECT. II. CAPACITY OF PARTIES. 241

as joint plaintiffs upon a promise made in consideration of
a cure done by the wife, and also in a second count for the
price of medicines, etc., provided ; upon a general demurrer,
it was held that the wife could not join, for that she was not
the sole cause of the action, because the medicines, etc.,
were the husband’s own property ; but that if the action had
been brought for the labours of the wife only, she might
well have joined (a).

So, a promissory note made to a wife in her own name is
presumed to be made upon a consideration moving from her,
and the husband may join the wife in suing upon it (b).
On a covenant made to the husband and wife in a lease of
the wife’s lands, the wife may be joined in the action (c);
but where a lease of the wife’s lands was expressly made
by the husband alone, it was held that the wife could not
be joimed (d). A promise was made to a husband and wife
in consideration of their forbearance to proceed upon a cog-
novit given in a previous action in which the wife had been
joined as co-plaintiff; it was held that the wite, being to
the extent of her interest in the consideration the merito-
rious cause of action, she might be joined with the husband
in an action on the promise (ce).

Where a promise is made to the wife upon a considera- When wife

: 5 ‘ . may sue
tion moving from her, as in the cases above cited, she may alone.
sue alone, subject to being met by a plea in abatement on
the ground of the irregularity of procedure in a married
woman suing without joming her husband; but her cover-
ture forms no defence to the action upon the merits and can-
not be pleaded in bar (jf). Thus, on a covenant to pay an
annuity to a married woman, she may sue alone; and the co-
verture of the plaintiff is matter only for plea in abatement,
and cannot be pleaded in bar (g). So, on a promissory note
given to a wife in her own name only, she may sue alone,
subject only to a plea in abatement of the non-joinder of her

(a) Holmes v. Wood, cited in (d) Harcourt v. Wyman, 3 Ex. 817.

Weller v. Baker, 2 Wils. 414, 424. (e) Nurse v. Wills, 4 B. & Ad.
(b) Philliskirk v. Pluckwell,2M. 739; 1 A. & E. 65.
& 8. 393. (f) See ante, p. 234.

(ce) Aleberry v. Walby, 1 Str. 229; (g) Bendix v. Wakeman, 12 M. &
and see Arnold v. Revoult, supra. W. 97.
R
242 CHAP, II, PARTIES TO CONTRACTS.

husband (a). A married woman bought railway stock with
money earned by herself, and had it transferred to her own
name ; it was held that she might maintain an action against
the railway company for the dividends, and that, the com-
pany not having pleaded the non-joinder of her husband in
abatement, she was entitled to recover (0).

Whenwite Ifthe promise is made to the wife, merely as agent for

cannot sue. the husband and for his use and benefit, as where the con-
sideration for the promise is the property, goods, or money
of the husband, he is solely entitled to it in his own right,
and can sue only in his own name, and the wife cannot be
joined (¢). In an action brought by husband and wife on a
promise made to them jointly in respect of the use and occu-
pation of land, judgment for the plaintiffs was reversed in
error upon the ground that the declaration was bad in not
stating any interest of the wife in the land, and that no in-
tendment could be made to that effect, even after judg-
ment (d). So, husband and wife cannot jointly sue upon an
account stated, unless it is averred and proved to have been
stated concerning a debt due in right of the wife, or for
which she was the meritorious cause of action (e).

anton Though a wife is incapable of making a contract to bind
or wile to . a . .
contract herself personally, she is, in some cases, invested with au-
as agent for

hustand, thority to contract as agent for her husband (f). The hus-
2 band is not bound by a contract made. by his wife without
authority, expressed or implied; and the party seeking to
charge him with contracts made by his wife must show that

she was invested with authority so to bind him.
A wife may acquire authority to bind her husband in two

ways :—

1. During cohabitation with her husband she has a pre-

(a) Guyard vy. Sutton, 3 C. B. 153. (e) Johnson vy. Lucas, 1 E. & B.
(b) Dalton v. Midland Counties 659.
Ry. Co., 13 C. B. 474; and see Ness (f) The authority of a wife to
vy. Angas, 3 Ex. 805. contract on behalf of her husband be-
(c) See Holmes vy. Wood, cited in longs, strictly speaking, to the sub-
2 Wils. 424; Bidgood v. Way,2W. ject of agency, which is treated here-
Bl. 1236 ; Johnson vy. Lucas,1 4H. & after (see p. 265) ; but it is thought
B. 659. more convenient to place it here in
(d) Bidgood y. Way, 2 W. Bl. connection with the personal capacity
1236. of a married woinan,
SECT. 11. CAPACITY OF PARTIES. 243

sumed authority to contract for him in those matters which
are entrusted to her management.

2. If the husband refuses to maintain her, unless for a
sufficient cause, she becomes invested by law with an au-
thority to supply herself with necessaries upon his credit.

1. A wife, during cohabitation with her husband, has a pre- Authority
sumptive authority to contract for her husband in all matters Rs"
which are usually entrusted to a wife, as for the supply of habitation.
goods for the use of herself and household suitable to the
condition in which they live (a). Similarly, a woman living
with a man, as his wife, and represented by him to be his
wife, though they are not married, is presumed to have au-
thority to bind him by her contracts for articles suitable to
that station which he permits her to assume (4). <A wife
who is permitted by her husband to remain the mistress of
his establishment, though he has separated from her, has
the same authority (c).

The authority of the wife arising from mere cohabitation Revocation
may be revoked by the husband ; and it is sufficient if such %, ee
revocation is notified to the wife sathout notice of it reach-_
ing the party dealing with her (d).

The existence of the authority of the wife during cohabi-
tation is a question of fact for the jury to decide; but there
is a presumption in favour of the authority in the absence of
evidence to the contrary (e).

2. A wife may also have authority to bind her husband Authority
from necessity. This necessity arises where the husband fails Seas
in his duty to maintain his wife, and she has no funds to essaries.
maintain herself. A husband is bound by law to maintain
his wife in a manner suitable to his station in life (f) ; and if
he fails to supply such maintenance, except under certain

(a) Montague v. Benedict, 2 Smith,
5th ed. 408; Seaton v. Bene-
dict, ib. 415; Lane v. Ironmonger,
13 M. & W. 368; Reid v. Teakle,
13 C. B. 627; Renaux v. Teakle, 8 Ex.
680; Jewsbury v. Newbold, 26 L. J.

L. C.,

Ex. 247.

(b) Munro vy. De Chemant, 4 Camp.
215; Blades v. Free, 9 B. & C. 167;

and see Ryan v. Sams, 12 Q. B. 460.

(ec) Norton v. Fazan,1 Bos. & P.

226; explained by Willes, J., Cooper
y. Lloyd, 6 OC. B. N.S. 519, 521.

(d) Jolly v. Rees, 15 C. B. N.S.
628; 38 L. J.C. P. 177. Byles, J.,
dissentiente, as to the validity of the
revocation without notice to the other
party.

(e) See the cases cited above.

(f) See the first resolution agreed
by all the judges in Manby v. Scott,
2 Smith’s L. C., 5th ed. 375.

R2
244, CHAP. Il. PARTIES TO CONTRACTS.

circumstances which justify him in withholding it, his wife
has an authority to pledge his credit to procure it, which is
based upon necessity (a). As long as the husband is able
and willing to maintain his wife in his own house, there is
no necessity for her seeking maintenance elsewhere, and she
has no authority to pledge his credit to obtain it (b).

Where the conduct of the husband is such as to compel
the wife to leave his house, it is equivalent to a refusal on
his part to maintain her there ; and, unless she is provided
with a sufficient maintenance, she is entitled to pledge his
credit for necessaries elsewhere (c). Thus, where she leaves
the husband’s house under a reasonable apprehension of per-
sonal violence, she is so entitled (d); and it seems that the
husband, by living in adultery with another woman in the
house, would justify his wife leaving it, and entitle her to
pledge his credit for necessaries (e). Where the husband
was unable himself to maintain his wife, by reason of being
confined in a lunatic asylum, it was held she had an autho-
rity to pledge his credit for necessaries (/).

The authority of the wife, arising from the refusal of the
husband to maintain her, to provide herself with necessaries
upon his credit cannot be revoked or extinguished by the
husband, even by an express notice to the person who sup-
plies her with necessaries (g).

Where wife The wife is under no necessity, and has no authority in
as. law to pledge her husband’s credit, if she has m fact suffi-
cient funds to provide for herself necessaries suitable to her

condition in life (h).

(a) Manby v. Scott, 1st resolution
supra; Read v. Legard, 6 Ex. 636;
20 L. J. Ex. 309; Johnson v. Sumner,
3H. & N. 261; 27 L. J. Ex. 341.

(b) Child v. Hardyman, 2 Sty.
875; Hindley v. Marquis of West-
meath, 6 B. & C. 200; Johnson v.
Sumner, 3H. & N. 261, 266 ; 27 L. J.
Ex, 341, 344,

(ec) Per Lord Kenyon, Hodges v.
Hodges, 1 Esp. 441; Boulton v. Pren-
tice, 2 Str. 1214; 8. C. Selwyn’s N.
P. 12th ed. 334,

(a) Houliston v. Smyth, 3 Bing.
127.

(e) Ib. 130; dissenting from Hor-

A decree for alimony obtained by the

wood v. Heffer, 3 Taunt. 421.

(f) Read v. Legard, 6 Ex. 636; and
see Davidson vy. Wood, 32 L. J. C.
400.

(g) Boulton v. Prentice, 2 Str.
1214; Selw. N. P. 12th ed. 334; and
see Etherington v. Parrot, 1 Salk.
118 ; per Lord Campbell, L.C., Jen-
ner v. Morris,3 De G. F. & J. 45,51;
30 L. J. C. 361, 362.

(2) Hodgkinson v. Fletcher, 4 Camp.
70; Liddlow v. Wilmot, 2 Stark. 82;
Holt v. Brien, 4 B. & Ald. 252;
Mizen v. Pick, 3 M. & W.481 ; John-
son vy. Sumner, 3 H. & N. 261; 27 L.
J. Ex. 341.
SECT. II. CAPACITY OF PARTIES. 245

wife is held to be primd facie evidence that the sum is sufficient
in amount, the decree being founded on proof given to the
Court of the situation in life of the parties (a). An agree-
ment made between the husband and wife, upon a separation
by mutual consent, as to the amount of her allowance is
primé facie evidence of its sufficiency; and the husband
cannot be charged without proof of its insufficiency (0).

But if the alimony under the decree, or the allowance un-
der the agreement, is not paid, the wife is under a necessity
to pledge her husband’s credit for her maintenance, and has
authority to do so (cj. Where a husband on separation from
his wife transferred property to trustees for her separate use,
but it did not appear that the trustees had accepted the
property, or that’the wife had received any of it, the hus-
band was held liable for necessaries supplied to her (d); and
where the wife’s separate property is not sufficient to af-
ford her proper maintenance, the husband is bound to con-
tribute (e).

A husband is not bound to maintain his wife after she has aauttery of
committed adultery (f); and if he refuses to maintain her, wife.
she has no authority in law to pledge his credit for her main-
tenance (g).

Where the wife is living separate from her husband, Necessity
there is no presumption that she has authority to bind ean és
him, even for necessaries; and it lies upon the party seek- proved.
ing to charge the husband for necessaries supplied to her
to prove that she has not in fact sufficient means to pro-
vide herself with necessaries, and is livmg apart from her
husband under such circumstances as entitle her to render

him liable (i).

(a) Willson vy. Smyth,1 B. & Ad. see Hope v. Hope, 27 L. J.P. & M. 43.

801. (g) Govier v. Hancock, 6 T. R. 603;
(b) Johnson v. Sumner, 3H. & N. Atkyns v. Pearce, 2 C. B. N.S. 763 ;

261; 27 L. J. Ex. 341. 26 L. J. C. P. 252; Cooper v. Lloyd,
(c) Nurse v. Craig, 2B.&P.N.R. 6C.B.N.S. 519.

148 ; Hunt v. De Blaquiere, 5 Bing. (h) Per Abbott, C.J., Mainwaring

550; and see Keegan v. Smith, 5 B.&  v. Leslie, M.& M.18; 2 0. & P.507;

C. 375. Edwards v. Towels, 5 M. & G. 624;

(d) Burrett v. Booty, 8 Taunt. 343,  Ozard v. Darnford, 1 Selw. N. P.
(e) See Davidson v. Wood, 32L.J. 12th ed. 381; Mizen v. Pick, 3M. &

C. 400. W.48] ; Johnson v. Sumner, 3H. &N.
(f) BR. v. Flintan, 1 B. & Ad. 227; 261; 27 L. J. Ex. 311.
What are
necessaries.

Ratifica-
tion by

246 CHAP. II. PARTIES TO CONTRACTS.

Where a wife is entitled to procure her necessary main-
tenance at her husband’s expense, the question may arise as
to what are necessaries for which he may be charged, and is
one of fact to be decided by the jury (a). Furniture for a
house may be necessary for a wife in a station of life requir-
ing her to live in a furnished house ()). Where it became
necessary for a wife to exhibit articles of the peace against
her husband, it was held that he was liable for the costs of
an attorney employed by her on that occasion (¢) ; and that
an allowance made to her for maintenance could not be con-
sidered as applicable to that purpose (d). A prosecution of
the husband for an assault on his wife was held to be a
matter for which the husband could not be made lable to
pay the cost (e). The costs of a proctor, employed by a wife
in prosecuting a suit against her husband for a divorce on
the ground of cruelty, may be recovered as a necessary, if
there was reasonable cause for the suit (f).

A husband is not liable at law for money lent to his wife,
though it was borrowed, and afterwards applied by her for
the purpose of paying debts previously contracted for neces-
saries, or for the purpose of procuring necessaries for which
she might have pledged his credit (g). A wife was requested
by her husband to join him abroad, and borrowed money to
enable her to pay her passage, which she did; it was held
that the lender could not recover the amount from the hus-
band (h). But in Equity, if a person lends money to a wife,
being then entitled to charge her husband for necessaries,
and she expends it in necessaries ; or if a person pays money
in discharge of the debts for necessaries supplied to the wife,
he is entitled to charge the husband with the amount so lent
or paid (i).

A husband may become liable upon contracts made by his

(a) Hunt v. De Blaquiere, 5 Bing. (f) Brown v. Ackroyd, 5 E. & B.
550. 819 ; 25 L. J. Q. B. 193.
(6) Hunt v. De Blaquiere, supra. (9g) Knox v. Bushell, 3 C. B. N.S.
(c) Shepherd y. Mackoul, 3 Camp. 334.
326. (kh) Ib.
(d) Turner v. Rookes, 10 A. & E.47. (2) Harris v. Lee,1 P. Wms. 482 ;

(ec) Grindell v. Godmond,5 A.& EB. Jenner v. Morris,3 DeG. F. & J. 45;
755. 30 L. J. C. 361.
SECT. II. CAPACITY OF PARTIES. 247

wife, in excess of her authority, if he subsequently ratifies yusband of
them (a). Thus, the husband may become liable to pay Wiles con-
for articles ordered by his wife, without his authority, if he
sanctions the use of them; and a husband may be taken to

have sanctioned the use of, and so become liable for articles

of dress or jewellery which his wife has ordered upon his

credit, by seeing her wear them without disapprobation (0).

So, where he has control over the goods improperly ordered

by his wife, and does not return them (c). The husband may

ratify the contract conditionally ; and he then becomes lia-

ble only upon fulfilment of the condition; as, where goods

had been supplied to his wife without his authority, and he
subsequently promised to pay for them if he was not arrested,

it was held that the creditor could charge him only subject

to the condition as to the arrest (d).

Contracts with persons in a state of insanity.

A person may be afflicted with mental insanity to such a Insanity.
degree as to render him incapable of understanding the
matter of an agreement ; but he is presumed by law to be of
sound mind and capable of understanding an agreement until
the contrary appears. Hence, every person, in his dealings
with another, is entitled to consider him of sound mind, and
capable of contracting, until he. has notice to the contrary.
But if a person enters into an agreement with another,
knowing him to be at the time of unsound mind, and thereby
incapable of understanding the agreement, he cannot en-
force such agreement; if he brings an action upon it, the
defendant may avoid its effect by pleading that he was in-
sane at the time of making the agreement, and thereby in-
capable of understanding it, to the knowledge of the plain-
tiff (e).

A lunatic may be charged upon his contracts for neces-

(a) See post, p. 268. (e) Sentance v. Poole, 3 C. & P.1;
(b) See Montague v. Benedict, 3B. Browne v. Joddrell, 3 C. & P. 30;
& C.631; Seatonv. Benedict,5 Bing. Dane v. Kirkwall, 8 C. & P. 679;
28; 2 Smith, L. C. 5th ed. 408, 415. Molton v. Camrour, 2 Ex. 487, 501;
(c) Waithman v. Wakefield, 1Camp. Beavan v. M‘Donnell, 9 Kx. 309; 10
120. Ex. 184; and sce Gore v. Gibson, 13
(d) Holt vy. Brien, 4B. & Ald. 252. M. & W. 623.
Insanity,

248 CHAP. II. PARTIES TO CONTRACTS.

saries supplied to him suitable to his condition and wants,
notwithstanding the party supplying them had notice of his

insanity (a) ; the maintenance of his wife is a necessary for

which a‘lunatic may be so charged (0).

In the case of Molton v. Camroua, a lunatic had purchased
certain annuities for his life of an assurance company which,
at the time, had no knowledge of his unsoundness of mind ;
it was held that, after his death, his personal representatives
could not avoid the transaction, and recover back the pre-
miums paid for the annuities. In that case the Court founded
their judgment chiefly on the circumstance that the contract
had been completely executed, so that the parties could not
be restored to their original position (¢).

In the case of Beavan v. M‘Donnell, the plaintiff had en-
tered into an agreement with the defendant for the pur-
chase of an estate on certain conditions, under which he had
paid a deposit, and the defendant had delivered an abstract
of title and was ready and willing to complete the sale; at
the time of making the agreement the plaintiff was insane
and incapable of understanding the meaning of it, but the
defendant was not aware of his insanity ; it was held, upon
the principle of Molton v. Camroua, that the plaintiff was
not entitled to avoid the contract and recover back the
amount of the deposit (d). In the same case (e), upon the issue
whether the defendant had notice of the insanity of the
plaintiff, it was held that evidence of insane conduct, both
before and after the signing of the contract, was admissible
to show that the nature of the insanity was such that the
defendant must have been aware of its existence.

A court of equity will not grant specific performance of a
contract made by a person in a state of insanity, although the
other party had no notice of the insanity, and took no advan-
tage of it (f) ; but the Court will not set aside a contract on
the mere ground of the insanity of one of the parties, the

(a) Baxter y. Earl of Portsmouth,
5 B. & C. 170; and see Wentworth v.
Tubb, 1 You. & Col. C. C. 171.

(6) Read v. Legard, 6 Kx. 636.

(ec) Molton v. Camrouz, 2 Ex. 487;
affirmed in Ex. Ch. 4 Ex. 17; and see
Elliott vy. Ince,7 De G.M. & G. 475,

487 ; 26 L. J. C. 821, 824.

(d) 9 Ex. 309; 23'L. J. Ex. 94.

(e) Beavan v. M‘Donnell, 10 Ex.
181; 23 L. J. Ex. 327.

(f) Hall v. Warren, 9 Ves. 605 ;
and see Frost v. Beavan, 17 Jur. 369 ;
22 L. J. C. 638.
SECT. II, CAPACITY OF PARTIES. 249

other party having dealt with him on the faith of his beiug of
competent understanding (a). The Court will grant specific
performance of a contract made during a lucid interval,
notwithstanding subsequent insanity, provided the remedy
can be given ; no act of the insane person being required, as
a conveyance, which the plaintiff is not willmg to dispense
with (6).

A person who is deprived of his reason by intoxication is
regarded by law, as to his capacity of contracting, in much
the same light as a person of unsound mind. Ifa person,
at the time of making an agreement, is so intoxicated as to
be incapable of understanding the meaning of it, the other
party being aware of his state, he may afterwards avoid the
agreement, and may answer an action brought against him
upon it, by the plea that he was intoxicated at the time of
making it, to the knowledge of the plaintiff (c). ‘‘ There is
this distinction,” it has been observed, ‘‘ between the case
of lunacy and that of intoxication : in the latter case the in-
capacity of the party is patent,—in the former, it may not
be in the least degree visible” (d).

It is said that a person may be liable for the price of
actual necessaries supplied to him whilst in a state of in-
toxication (e).

The principles upon which equity deals with contracts
made by a person when in a state of intoxication have been
explained by Sir W. Grant, M.R., in the following terms (/):
—“A court of equity ought not to give its assistance to a
person who has obtained an agreement, or deed, from an-
other, in a state of intoxication; and, on the other hand,
ought not to assist a person to get rid of any agreement, or
deed, merely upon the ground of his having been intoxi-

(a) Niell v. Morley, 9 Ves. 478; 33; Fenton v. Holloway, 1 Stark. 126,
and see Elliott v. Ince, 7 De G. M. & (d) Per Alderson, B., Molton v.

G. 475, 488; 26 L. J. C. 821, 825. Camroux, 2 Ex. 487, 491.

(0) Ib.; Owen v. Davies, 1 Ves. e) See Gore v. Gibson, 18 M. &
sen. 82. W. 623, 627.

(ec) Gore v. Gibson, 13M. & W. (f) Cooke y. Clayworth, 18 Ves. 12,

623; Hamilton v. Grainger,5 H.& 15; and see Shaw v. Thackray,
N. 40; and see Pitty. Smith, 3 Camp. 18m. & Gif. 537, 540.

Intoxica-
tion,
Corpora-
tion.

Common
seal.

250

cated at the time (a): I say merely upon that ground; as,
if there was, as Lord Hardwicke expresses it in Cory v.
Cory (b), any unfair advantage made of his situation, or, as Sir
Joseph Jekyll says in Johnson v. Medlicott (c), any contriv-
ance or management to draw him into drink, he might be a
proper object of relief in a court of equity.” Acting upon
these principles, the Court has refused to set aside an agree-
ment merely upon the ground that the plaintiff was intoxi-
cated when he made it, where it did not appear that he
was deprived of his reason, or that any unfair advantage was
taken of his condition (d) ; and the Court has decreed spe-
cific performance of an agreement against a party who was
in a slight degree intoxicated when he made it (e).

CHAP. II. PARTIES TO CONTRACTS.

Contracts with corporations.

A corporation is an artificial person created by law, bear-
ing a distinctive name, and having perpetual succession ;
and one of the capacities of a corporation is to have a
common seal, by which alone it can manifest its inten-
tion (f).

Hence, as a general rule, a corporation can make an agree-
ment only by writing under its common seal (gq). The
agreement of a corporation is valid upon the affixing of the
seal, and does not require a formal act of delivery like the
deed of an individual (#); but the affixing of the seal must
be done with the intention of rendering the instrument ef-
fective ; and in a case where the seal of a corporation was
ordered to be affixed to a conveyance, and the order was
accompanied with a direction to the clerk of the corporation
to retain the deed in his hands until certain accounts were
settled, it was held that the affixing of the seal did not
render the instrument immediately operative (i).

chise,” (F.) 12,13; Bererley v. Lin-

(a) Dunnage v. White, 1 Swanst.
37.

(6) 1 Ves. 19.

(c) 3 P. Wms. 130.

(d) Cooke v. Clayworth, 18 Ves. 12.

(e) Lightfoot v. Heron, 3 You. &
Col. Ex. 586; Shaw v. Thackray,
18m. & Gif. 537.

(f) 1 Bl. Com. 467, 475.

(g) Comyw’s Digest, tit. “ Fran-

coln Gas Co.,6 A. & E. 829, 844;
Church v. Imperial Gas Co., 6 A. &
E. 846, 861; Mayor of Ludlow v.
Charlton, 6 M. & W. 815, 823;
London Dock Co. vy. Sinnott, 8 E. &
B. 347; 27 L. J. Q. B. 129.

(h) Ante, p.77; 2 Roll. Abr. 23, 24.

(i) Derby Canal Co. y. Wilmot,
0 Kast, 360,
SECT. II. CAPACITY OF PARTIES. 251

A corporation can contract only by the corporate name. Corporate
Thus, where a corporation was created by the name of “ the ™"”
Guardians of the Poor” of a certain place, a deed purport-
ing to be made by “ the directors and acting guardians of
the poor,” and sealed with the corporate seal, was held not
to bind the corporation (a).

Corporations established by Act of Parliament are fre- statutory
quently invested with powers of contracting, exerciseable fms of
in the manner and with the forms prescribed by the special,
or general Act by which they are created and regulated ;
and in such cases, the manner and form of contracting pre-
scribed in the Act are sufficient and must be strictly fol-
lowed (8).

“The general rule of law is that a corporation contracts Exceptions
under its common seal; as a general rule, it is only in that setts 8:
way that a corporation can express its will or do any act. tpquiring
That general rule, however, has from the earliest traceable mon seal.
periods been subject to exceptions, the decisions as to which
furnish the principle on which they have been established,
and are instances illustrating its application, but are not
to be taken as so prescribing in terms the exact limit that
a merely circumstantial difference is to exclude from the ex-
ception. This principle appears to be convenience amount-
ing almost to necessity. Wherever to hold the rule appli-
cable would occasion very great inconvenience, or tend to
defeat the very object for which the corporation was cre-
ated, the exception has prevailed; hence the retainer by
parol of an imferior servant, the doing of acts very fre-

(a) R. v. Haughley, 4 B. & Ad. rated under the Joint Stock Com-

650; Mayor of Lynn’s case, 10 Co.
123; Croydon Hospital v. Farley,
6 Taunt. 467.

(2) Cope v. Thames Haven Dock
Co,, 3 Ex. 841; Homersham v. Wol-
verhampton Waterworks, 6 Ex. 137,
142; Frend v. Dennett, 4 C. B. N.S.
576; 27 L. J. C. P. 314. See the
mode of contracting provided for joint
atock companies subject to the Com-
panies Clauses Consolidation Act, 1845,
8 Vict. c. 16, s. 97 (post, p. 261) ;
and the mode of contracting provided
for joint stock companies incorpo-

panies Act, 1856, 19 & 20 Vict. c. 47,
s. 41. The latter Act has been re-
pealed by the Companies Act, 1862,
25 & 26 Vict. c. 89, s. 206, but with a
saving of rights and privileges acquired
under it, amongst which is.held to be
the power subsisting in a company
registered under the repealed Act of
making contracts in the manner pro-
vided by that Act. Prince v. Prince,
L. Rep. 1 Eq. 491. The Companies
Act, 1862, provides no special modes
of contracting.
Bills of ex-

change and

promissory
notes.

252 CHAP. II, PARTIES TO CONTRACTS.

quently recurring, or too insignificant to be worth the
trouble of affixing the common seal, are established excep-
tions ; on the same principle stands the power of accepting
bills of exchange, and issuing promissory notes, by com-
panies incorporated for the purposes of trade, with the rights
and liabilities consequent thereon” (a).

These exceptions have been classed under two heads :—
“ First, when the acts done are such as the corporation, by its
very constitution is appointed to do ; as in the case of trading
corporations, whose duty, by their very appointment, bemg
to draw bills of exchange, they may do it without affixing
the common seal. Secondly, when the acts are required for
convenience ; as where either the acts are trivial in their
nature, and of frequent occurrence, so that the doing them
in the usual way would be inconvenient or absurd; or such
that an overruling necessity requires them to be done at
once ; in that case, also, the corporation may proceed by
parol, instead of affixing the seal according to the proper
and regular course”’ (0).

Accordingly, where a company, like the Bank of England
or East India Company, is incorporated for the purposes of
trade, it results from the very object of its incorporation
that it has power to accept bills or issue promissory notes
in the usual form, without seal; for it would be impossible
for such companies to go on without such power (c). But if
the Act of Parliament, incorporating a company, does not
contain any power enabling it to become party to bills of
exchange or promissory notes, and there is nothing in the
purposes of the incorporation from which such power can be
implied, the power does not exist (d). A company, incor-

London

(a) Church v. Imperial Gas Co.,
6 A. & E. 846, 861; “to every word
of this we entirely subscribe” per cur.
Mayor of Ludlowv. Charlton, 6 M.
& W. 815, 822; and see Beverley v.
Lincoln Gas Co.,6 A. & EB. 829, 844;
Cope v. Thames Haven Co., 3 Ex.
841, 844.

(6) Per Alderson, B., Diggle v.
London and Blackwall Ry. Co., 5 Ex.
442, 450; and see Mayor of Ludlow v.
Charlton, 6 M. & W. 815, 821; East

Waterworks Co. v. Bailey,
4 Bing. 283, 287.

(ce) Murray v. East India Co., 5B.
& Ald. 204; and sce Edie vy. East
India Co., 5 Burr. 1216; Broughton
v. Manchester Waterworks Co., 3 B.
& Ald.1; East London Waterworks
Co. v. Bailey, 4 Bing. 283, 288.

(d) Broughton v. Manchester Water-
works Co.,3 B. & Ald.1,12; Slark
v. Highgate Archway Co., 5 Taunt.
792.
SECT. II. CAPACITY OF PARTIES. 253

porated for the purpose of supplying the inhabitants of a
place with water, was held not to be impliedly authorized to
make promissory notes or to accept bills of exchange (a).

By “the Companies Act 1862” (25 & 26 Vict. c. 89),
passed for the incorporation and regulation of trading com-
panies, it is expressly provided, (by s. 47), that “a promis-
sory note or bill of exchange shall be deemed to have been
made, accepted, o indorsed on behalf of any company un-
der this Act, if made, accepted, or indorsed in the name of
the company by any person acting under the authority of the
company, or if made, accepted, or indorsed by or on behalf
or on account of the company, by any person acting under
the authority of the company.”

The capacity of a corporation to make bills or notes is sub-
ject to the provisions of the several Acts passed for protect-
ing the privileges of the Bank of England; the general
effect of which, as regards corporations, seems to be that it
is not lawful for a corporate body, carrying on the business of
banking within sixty-five miles of London, to make bills or
notes payuble to bearer on demand (0b).

An incorporated company, established for the purpose of
carrying passengers and cargo to Australia, was held bound
by an agreement, not under seal, undertaking to pay for
bringing home one of the vessels of the company (c). And it
was held that the same company might sue upon a contract
for the supply of provisions for the use of passengers on
board the ships of the company, though made by an agree-
ment not under seal (d). A company, incorporated for the
purpose of maintaining a communication between places by
telegraph, contracted with a person to pay him a commission
on messages sent by him through the company’s lines ; it was
held to be no objection to the validity of such contract that
it was not under the seal of the company (e). A company

(a) Broughtony. Manchester Water- (c) Henderson vy. Australian Royal
works Co., supra. Mail Steam Navigation Co.,5 E.& B.
(b) See 39 & 40 Geo, TIT. c. 28,8. 409; 24L. J. Q. B. 322.
15; 7 Geo. IV. c. 46,8.1;3 & 4 (d) Australian Royal Mail Steam
Wm. IV. c. 98, s. 83; 7 & 8 Vict. Navigation Co. v. Marzetti, 11 Ex.
c. 32, s. 26, Chitty’s Statutes, tit. 228; 24 L. J. Ex. 273.
“Bankers ;” and see Bank of Eng- (e) Reuter v. Electric Telegraph
land v. Anderson, 3 Bing. N. C. 589, Company, 6 E. & B. 341; 26 L. J.
and the cases there cited. Q. B. 46.

Ordinary
trading
contracts.
254 CHAP. II. PARTIES TO CONTRACTS.

for making and supplying gas incorporated by a local Act,
not containing special provisions respecting contracts, was
held competent to make a valid contract with an individual
to supply him with gas, without affixing the seal of the com-
pany (w). So, a gas company was held liable for the price
of gas-meters sold and delivered to the company, though
not contracted for under seal (6).

A company, incorporated by charter for the purpose of
mining and dealing in copper, was held incompetent to con-
tract without seal for a supply of iron bars, such contract
not being within the scope of the charter or connected with
the business of dealing in copper (c). A contract with a
railway company for relaying the permanent way and alter-
ing the gauge of the line, in order to adapt it for the use of
locomotive instead of stationary engines, was held not to be
a contract of such a kind or upon such an occasion as might
be made without the seal of the company (d). A contract
made by a waterworks company for the manufacture and de-
livery of iron pipes at certain stated periods, was held not
to be valid unless under the seal of the company (e). An
agreement by the London Dock Company for a contract for
cleansing their docks was held not to be a contract in the
ordinary way of their trade, and to require the solemnity of
a seal (f).

Contracts Corporations, in general, may also make many contracts
Pee ee of common and ordinary occurrence, necessary for carrying
dinary ne- Out the objects of the corporation, in the usual form of such
cessity- contracts, and without affixing the seal of the corporation (9).
Thus, the guardians of a poor law union, (who are incor-
porated by the statute 5 & 6 Wm. IV. c. 69,) have power to
contract by parol for the supply of goods and for the work
necessary for the union workhouse (h); but the Court of

(a) Church v. Imperial Gas. Co., 6 (f) London Dock Co. y. Sinnott, 8

A. & EH. 846. KE. & B. 347; 27 L. J. Q. B. 129.

(4) Beverley v. Lincoln Gas Co., 6 (9g) Clarke v. Cuckfield Union, 21
A. & E. 829. L. J. Q. B. 349, 352.

(ce) Copper Miners Co. v. Fox, 16 Q. (h) Sandars v. St, Neots Union, 8
B. 229. Q. B. 810; Clarke v. Cuckfield Union,

(d) Digyle v. Blackwall Ry. Co.,5 supra; Nicholson v. Bradfield Union,
Ex. 442. L. R. 1 Q. B. 620; 35 L. J. Q. B.176;

(e) East London Waterworks vy. see Haighv. North Bierley Union, E.
Bailey, 4 Bing. 283. B. & E. 873; 28 L. J. Q. B. 62.
SECT. II. CAPACITY OF PARTIES. 255

Exchequer has held that the guardians of a Poor Law Union
are not liable for work done in building the workhouse under
a contract not under seal (a). And the guardians of a poor
law union cannot bind themselves by an order not under seal
for making a survey and map of a particular parish in the
union, because such map is not incident to the general
purposes of the union for which the guardians are incor-
porated (6). A municipal corporation cannot enter into a
contract to pay a sum of money for making improvements
within the borough except under the common seal (¢).

A corporation may contract without seal for ordinary and Contracts
trifling services (d). But a corporation, in general, cannot oa
appoint an attorney except under the corporate seal; and ae. ats
an attorney, whose appointment is not under the serponsite agents, ete.
seal, cannot recover his costs against the corporation (e). The
City of London appoints an attorney every year in open
Court, which appointment is recorded (f). An Act of Parlia-
ment incorporating a railway company gave power to the di-
rectors ‘‘ to appoint and displace any of the officers of the
company ;”’ it was held that the appointment of an attorney
to the company need not be under seal (q).

An agreement by a municipal corporation with the town
clerk to increase his salary, instead of giving him compen-
sation for certain abolished offices to which he was entitled,
was held not to be valid unless executed under seal (h). The
appointment by a municipal corporation of a coal-meter,
being an office to which certain dues were attached, was held
to require the corporate seal (i). The appointment by a
railway company of an agent to negotiate with another com-
pany for a lease of the line, not being under seal, or in the

(a) Lamprelly. Billericay Union, 3 Dock and Ry. Co. v. Hall, 5 M. & G.

Ex. 283. 274; Faviell v. Eastern Counties Ry.
(6) Paine v. Strand Union,8Q.B.  Co., 2 Ex. 344.

326. (f) Arnold vy. Mayor of Poole, 4M.
(ce) Mayor of Ludlow y. Charlton, & G. 860, 882.

6M. & W. 815. (g) BR. v. Justices of Cumberland, 17

(d) Com. Dig. Franchises, (F) 13 ;
Smith v. Birmingham Gas Co.,1 A. &
E. 526.

(e) Arnold v. Mayor of Poole, 4
M.& G. 860; and see Thames Haven

L. J. Q. B. 102.

os R.v. Mayor of Stamford, 6 Q.
B. 4

() ane, Cartwright, 6 Ex. 927 ;
20 L. J. Ex, 401.
Use and oc-
cupation of
land.

Contracts
implied in
law.

Contracts
arising
upon exe-
cuted con-
sideration.

256 CHAP. II. PARTIES TO CONTRACTS.

form expressly provided in their Act for the contracts of the
company, was held not to be valid, because it was for a pur-
pose not in the ordinary course of their business (a). A re-
solution passed at a meeting of an incorporated trading
company, not under seal, that a remuneration of one guinea
should be allowed to every director for every attendance at
courts and committees, was held not to entitle a director to
sue the company for such remuneration for his attend-
ances (d).

A corporation may maintain an action to recover a rea-
sonable satisfaction for the use and occupation of land,
held and occupied by the permission of the corporation, with-
out a demise under seal (¢) ; and a corporation is also liable
to pay such reasonable satisfaction for the use and occupation
of land, actually held and occupied by the corporation (d) ;
but the occupation of the land, or the payment or acceptance
of rent, by a corporation does not operate as evidence of a
demise, asin the case of an individual; because, as a general
rule, a corporation cannot contract concerning an interest in
land except by an instrument under seal (e).

A corporation may become liable upon a contract imped
in law, as for money received for the use of the plaintiff, in
respect of money belonging to the plaintiff wrongfully ob-
tained and withheld by the corporation (f); and upon an
implied contract to repay money paid by the plaintiff for the
use of the corporation (4).

In matters not within the above exceptions, and concern-
ing which a corporation cannot contract without seal, the cor-
poration does not become liable upon an implied contract by
reason of the consideration having been executed in their
favour, and the corporation having accepted and had the

(a) Cope vy. Thames Haven Dock A.& E. 829, 841; Lowe v. London and

and Ry. Co., 3 Ex. 841.

(b) Dunston v. Imperial Gas Co., 3
B. & Ad. 125.

(c) Dean of Rochester v. Pierce, 1
Camp. 466 ; Mayor of Stafford v. Till,
4 Bing. 75; and see Doe dem. Pen-
nington v. Taniere, 12 Q. B. 998.

(d) Beverley v. Lincoln Gas Co., 6

North-Western Ry. Co., 18 Q. B. 632 ;
21L.J.Q B. 361.

(e) Finlay v. Bristol and Exeter
Ry. Co., 7 Ex. 409 ; 21 L. J. Ex.117.

(f) Hall v. Mayor of Swansea, 5
Q. B. 526; sce ante, p. 47.

(g) Jefferys v. Gurr, 2B. & Ad. 833;
see ante, p. 41.
SECT. II.

benefit of it (a).

CAPACITY OF PARTIES.

257

But in matters not falling within any of

the above exceptions, if the consideration is executed on the
part of the corporation, and the persons who are parties to
the contract with the corporation have received the benefit
of the consideration moving from the corporation, those per-
sons may, in general, be sued by the corporation upon the
contract arising from the executed consideration (6).
In the case of a contract, put in suit by a corporation, Contracts

which is executory on the part of the corporation, it has

with execu-
tory con-

been suggested “that their suing upon the contract would sideration.
amount to an admission on record by them that such con-
tract was duly entered into on their part, so as to be obliga-
tory on themselves; and that such admission on the record
would estop them from setting up as an objection, in a
cross action, that it was not sealed with their common seal’? (c).

The same rule, that a corporation must contract under gontacts
seal, is followed in equity. Thus, a Court of Equity refused a corpora-

ions 1n

specific performance of a contract to renew a lease by an equity.
ecclesiastical corporation, evidenced by an entry of a reso-
lution to that effect in their books, upon the ground that
the corporation was not bound unless their agreement was
made by a deed or writing with the corporate seal affixed
to it (d) ; but a Court of Equity will decree specific perform-
ance of a contract against a corporation after part perform-
ance of it by the other party, though not evidenced by the
seal of the corporation, or with the proper formalities required
by its constitution, on the ground that it would be fraudu-
lent for the corporation afterwards to refuse performance
by reason of there not being a binding contract (e).

The contracts of corporations are also limited, in respect py vors of

(a) Church v. Imperial Gas Light
Co., 6 A. & BE. 846; Mayor of Ludlow
vy. Chariton, 6 M. & W. 815; Lam-
prell v. Billericay Union, 3 Ex. 283 ;
Clarke v. Cuckfield Union, 21 L.J.Q.
B. 349,351; per Wiles, J., London Gas
Co.v. Vestry of Chelsea, 8 C. B. N.S.
215, 231.

(6) Fishmongers’ Co. v. Robertson, 5
M.& G.181,192; Hast London Water-
works v. Bailey, 4 Bing. 283, 287.

corpora-

(c) Fishmongers’ Co. v. Robertson, tions to

5 M. & G. 131, 192; but see Copper Contract.
Miners’ Co. vy. Fox, 16 Q. B. 229, 237.
(d) Carter v. Dean of Ely, 7 Sim.
211; and see Taylor v. Dulwich Hos-
pital, 1 P. Wms. 655; Winne v.
Bampton, 3 Atk. 473.
(e) Wilson v. West Hartlepool
Ry. Co., 34 L. J. C. 241; see Wilmot
v. Coventry, 1 Y. & C. Ex. 518;
Gooday v. Colchester, 17 Beav. 132.

8
Powers of
corpora-
tions to
contract,

Contracts
ultra vires.

258 CHAP. II. PARTIES TO CONTRACTS.
of their matter, by the powers of the corporation, given either
in express terms or by implication in the instrument of in-
corporation ; for corporations exist for no other purpose and
have no greater capacity or powers than are conferred by
their creation, and contracts which exceed the limits of those
powers are void.

“Generally speaking, all corporations are bound by a
covenant under their corporate seal, properly affixed, which
is the legal mode of expressing the will of the entire body,
and are bound as much as an individual is by his own deed.
—But where a corporation is created by an Act of Parlia-
ment for particular purposes, with special powers, another
question arises: their deed, though under their corporate
seal, and that regularly affixed, does not bind them, if it
appear by the express provisions of the statute creating
the corporation, or by necessary or reasonable inference
from its enactments, that the deed was wltra vires, that is,
that the legislature meant that such a deed should not be
made” (a). And it is said that “ when the legislature con-
stitutes a corporation it gives to that body prima facie an
absolute right of contracting. But this prima facie right
does not exist in any case where the contract is one which,
from the nature and object of incorporation, the corporate
body is expressly or impliedly prohibited from making; such
a contract is said to be ultra vires” (d).

Accordingly, a railway company, incorporated by Act of
Parliament for the purpose of making a particular railway, and
invested with all the powers necessary for that purpose, were
held not to have power to covenant with another railway com-
pany to take a lease of their railway, and to pay the costs of
certain bills then pending in Parliament for authorizing exten-
sions and branches of the railway leased; and the covenant
made to that effect was held void, as being beyond the scope

(a) Per Parke, B., South Yorkshire
Ry. Co. v. Great Northern Ry. Co.,
9 Ex. 55, 84; 22 L. J. Ex. 305, 314;
adopted by the Court in Chambers v.
Manchester & Milford Ry. Co.,5 B.
& 8. 588; 33 L. J. Q. B. 268; see
per Erle, J., Mayor of Norwich v.
Norfolk Ry. Co., 4B. & B. 397, 413 ;

241. J. Q. B. 105,111; Bateman v.
Mayor of Ashton-under- Lyne, 3 H. &
N. 323; 27 L. J. Ex. 458, 463.

(6) Per Cranworth, L.C., Shrewsbury
S Birmingham Ry. Co. v. London &
NW. Ry. Co., 26 L. J. C. 482, 498;
per L. Wensleydale, Scottish NE.
Ry. Co .v. Stewart, 8 Macq. 382, 415.
SECT. II, CAPACITY OF PARTIES. 259

of the authority conferred by the Act of incorporation (a).
So, a covenant executed by a railway company to pay a sum
of money, which the promoters of the company had agreed
should be paid to a landowner for his countenance and sup-
port to their bill, was held to be ultra vires of the company,
and could not be enforced against them (6). But a contract
by an existing railway company, who had applied to Parlia-
ment for an Act to make a branch line, to purchase land
which they would require for that line, was held to be a con-
tract in furtherance of the general objects of the company and
not wlira vires; and the company were held to specific per-
formance, though they had afterwards determined not to
make the branch line (c).

A railway company incorporated by Act of Parliament
were authorized by their Act to borrow money to a certain
amount by mortgage, when their whole capital was sub-
scribed for; the company borrowed money otherwise than
by mortgage, and when part only of the capital had been
subscribed for, and in order to secure this debt they executed
bonds under the seal of the company acknowledging the debt
to be owing to the creditor and covenanting to pay it; it was
held that such bonds, though duly executed in point of form,
were invalid, because executed for the illegal purpose of bor-
rowing money which the company were not empowered to
borrow (d). But it has been held that bonds of a similar
nature executed by a railway company, might be lawfully
issued in payment to a contractor for the works under his
contract, although the company had not any borrowing
powers (e). A railway company has no power to accept
bills of exchange for any purpose, even under seal (/).

A contract by an incorporated trading company to pur-

-chase the goodwill of the business of another company,

Hawkes,5H.U. C. 331; 24, L. J.C.601.

(a) East Anglian Ry. Co. v. East-
(d) Chambers v. Manchester & Mil-

ern Counties Ry. Co.,11 C. B. 775;

21 L. J.C. P. 23.

(b) Earl of Shrewsbury v. North
Staffordshire Ry. Co., 35 L. J.C. 156;
L. Rep. 1 Eq. 593; and see Preston
vy. Liverpool, Manchester, § Newcastle
Ry. Co.,5 H. L. C. 605.

(ce) Eastern Counties Ry. Co. v.

ford Ry. Co.,5 B. & 8. 588; 33 L. J.
Q. B. 268.

(e) White v. Carmarthen & Cardi-
gan Ry. Co., 33 L, J. C. 93.

(f) Bateman vy. Mid-Wales Ry. Co.,
35 L. J. C. P. 205; L.R.1C. P. 499;
ante, p. 252.

gs 2
Corpora-
tion must

contract by

agent duly
authorized.

The Com-
panies
Clauses
Consolida-
tion Act.

260 CHAP. II, PARTIES TO CONTRACTS.

is not within the ordinary powers of the directors (a). A
company formed for the object of manufacturing articles by
machinery, for which a patent had been granted, were held
to have power to purchase the patent (b). A company, in-
corporated for the working, preparation, and sale of china
clay and its products, and for carrrying on mining opera-
tions incidental to that business, were held to be empowered
to make a valid mining lease for twenty-one years of the
whole of the property and works of the company, which
they had failed to work successfully (c). So, a trading com-
pany may give a bill of sale as security for a debt (d).

A corporation can affix its corporate seal, or contract with-
out seal, only by some agent, duly authorized in that behalf.
Where a person, pretending to be, but not really beimg, the
mayor of a municipal corporation, put the corporation seal to
a deed, it was held that it did not thereby become the deed
of the corporation (e). Where an agent, entrusted with the
custody of the seal of a corporation, applied it without
authority to a power of attorney for selling stock and ob-
tained the proceeds, it was held that the corporation was
not bound by the unauthorized use of the seal, and that the
sale of the stock was invalid (f).

The authority to affix the corporate seal is generally given
and defined by the charter or statute of incorporation.

Joint stock companies constituted for making railways
and for other undertakings of a public nature are generally
incorporated by a special Act of Parliament, and regulated
by “the Companies Clauses Consolidation Act, 1845,” (8
Vict. c. 16), the provisions of which are incorporated in the
special Act, so far as they are applicable. That Act provides
generally for the appointment of directors, (ss. 81-89) who,
either by themselves or by committees of directors appointed
by themselves, have the management and superintendence

(a) Ernest v. Nicholls,6 H. L. C. LL. 0.712;29L. J.C. 561; Australian
401 ; and see Balfour y. Ernest,5 C. Steam Co. v. Maunsey, 4K. & J. 733.
B.N.8. 601; 28 L J.C. P. 170. (d) Shears v. Jacob, 35 L. J. C. P.

(b) Leifchild’s case, L. R.1 Eg. 231. 241; L. R. 1. P. 513.

(c) Featherstonhaugh v. Lee Moor (e) Per Holt, O.J., anon. 12 Mod.
Porcelain Clay Co.,L. R.1 Eq. 318; 423.

35 L. J. C. 84; and see Simpson v. (f) Bank of Ireland y. Evans Chari-
Westminster Palace Hotel Co.,8 H. ties, 5 H. L. C. 389.
SECT. II. CAPACITY OF PARTIES. 261

of the affairs of the company, and exercise all the powers of
the company, subject to the provisions of that and the spe-
cial Act (s. 90).

By s. 97 the power to make contracts on behalf of the
company may be exercised as follows :—‘‘ With respect to
any contract which, if made between private persons, would
be by law required to be in writing, and under seal, such
committee or the directors may make such contracts on be-
half of the company in writing, and under the common
seal of the company, and in the same manner may vary or
discharge the same :—With respect to any contract which, if
made between private persons, would be by law required to
be in writing, and signed by the parties to be charged there-
with, then such committee or the directors may make such
contract on behalf of the company in writing, signed by such
committee or any two of them, or any two of the directors,
and in the same manner may vary or discharge the same :
—With respect to any contract which, if made between pri-
vate persons, would by law be valid although made by parol
only, and not reduced into writing, such committee or the
directors may make such contract on behalf of the company
by parol only, without writing, and in the same manner may
vary and discharge the same.”

Joint stock companies incorporated and regulated by “ the The Com-
Companies Act, 1862,” 25 & 26 Vict. c. 89, which applies to Pago sii
trading companies in general, are also managed by directors,
who exercise all the ordinary powers of the company, subject
to the provisions of the general Act, and of the articles of as-
sociation of the company. This Act does not contain any
special provisions as to the exercise of the powers of the
company to contract; but leaves it to be regulated by the
articles of association (a).

In dealings with a joint stock company so incorporated Notice of
the public are deemed to have notice of the Act of Parlia- pe aaa

4 of corpora-
ment, and the registered articles of association, which define tos.

(a) See ss. 14, 15; 1st sched. Table
A, regulations 55, 66-71. “The

Consolidation Act, 1845, s. 97, supra.
and see the Act for the Registration

Joint Stock Companies Act, 1856,” 19
& 20 Vict. c. 47, repealed by the above
Act, contained a provision (s. 41) as
to the contracts of the company similar
to that in the Companies Clauses

of Joint Stock Companies, 7 & 8 Vict.
c. 110 (repealed by ‘“‘the Joint Stock
Companies Act, 1856”) s. 44, as to
the requisites of contracts made by
companies under that Act.
262 CHAP. II. PARTIES TO CONTRACTS.
Notice of
the powers
of corpora-
tions,

the purposes for which the company is incorporated, and the
powers of the directors; and all persons who contract with
the directors are taken to be cognizant of the extent of the
authority so conferred upon them. The company, or whole
body of shareholders, can be charged with the contracts
made by the directors only when the latter have strictly fol-
lowed the provisions which regulate their authority (a).

But though parties dealing with jomt stock companies
may be taken to know all the limitations of the authority of
the directors prescribed by the general Act and the articles
of association of the company, they are not taken to know
all the acts and proceedings of the company and of the
directors ; and they are entitled to assume, as against the
company, that all meetings have been duly held, and all
proper resolutions passed, and necessary acts done, in order
to appoint the directors or other agents of the company,
and to give them the powers which they assume to exercise
consistently with the constitution of the company (b). By
the deed of settlement of a joint stock company, registered
under the 7 & 8 Vict. c. 110, the directors were authorized
to borrow under the common seal of the company such
sums as should from time to time by a resolution passed
at a general meeting of the company be authorized to be
borrowed; it was held that persons lending money to the
directors on bond under the common seal of the company
had a right to infer that such a meeting had been held, and
such a resolution passed, as were requisite to authorize the
directors to borrow the money ; and in an action on the bond,
the plea that no such resolution was passed was held bad (¢).

(a) Ridley v. Plymouth Grinding
and Baking Co., 2 Ex.711; Smith v.
Hull Glass Co., 11 C. B. 897 ; Balfour
v. Hrnest, 5 C. B. N.S. 601; 28 L. J.
C. P. 170; per Lord Wensleydale,
Lirnest v. Nicholls, 6 H. L. C. 401,
419. These and the following cases
occurred under the Act for the regis-
tration of joint stock companies, 7 & 8
Vict. c. 110 (since repealed), and with
reference to the registered decd of set-
tlement of the company required by
that Act; but they seem to be equally
applicable in principle to joint stock
companies as at present constituted.

() Smith vy. Hull Glass Co., 11 C.
B. 897, 927; Royal British Bank v.
Turquand, 5 E. & B. 258; 6 Ib. 327;
25 L. J. Q. B. 317; Agar +. Athe-
neum Ass. Co., 3 C. B. N.S. 725;
27 L. J.C. P. 95; Prince of Wales
Ass. Co. v. Harding, E. B.& E. 183;
27 L. J. Q. B. 297, 309; Totterdell
v. Fareham Blue Brick § Tile Co.,
35 L. J. C. P. 278.

(ce) Royal British Bank vy. Tur-
quand, 5 BE. & B. 248; 6 ib. 327;
24 L. J. Q. B. 327; 25%b. 317; Agar
v. Atheneum Life Ass. Co., 3 C.B.
N.S. 725; 27 L. J. 0. P. 95,
SECT. II, CAPACITY OF PARUIES. 263

Some of the provisions in the articles of association of a
joint stock company may be directory only, and intended to
operate only as between the directors and the shareholders,
and may not constitute conditions to the exercise of the
powers of the directors, or to the validity of their acts as re-
gards the public. The non-observance of these provisions
might be a breach of duty on the part of the directors, but
would not necessarily invalidate their dealings with third
parties as against the company (a). The deed of settlement
of a joint stock insurance company registered under the
7 & 8 Vict. c. 110, provided that ‘the common seal shall
not be affixed to any policy, except by an order signed by
three directors and countersigned by the manager ;” it was
held that a policy to which the common seal had been af-
fixed by the proper officers, in apparent conformity with the
deed of settlement, was not rendered void as against the
company by want of such an order to affix the seal (0).
So, a provision in the deed of settlement of a company re-
gistered under the 7 & 8 Vict. c. 110, that bills of exchange to
be issued by the directors should be so issued as to be bind-
ing on the company and on the shareholders to the extent
of the shares held by them, and not further, was held not to
limit the liability of the company on bills issued by the
directors in conformity with the Act (c).

Where a contract has been made fora company by persons Ratifea-

not duly authorized in that behalf, or without the observance ton of un-
authorized

of the formalities necessary to bind the company, such con- or informal
tract may be afterwards ratified by the company, or by direc- POOR
tors or other persons duly authorized for that purpose on

(a) Prince of Wales Ass. Co. v. M.& G, 459; 23 L.J.C. 966. These
Harding, BE. B. & BE. 183, 214; 27. cases were decided upon the prin-
J. Q. B. 297, 807; and see Bill v. ciple that the limitation of the lia-
Darenth Valley Ry. Co. 1H. & N. _ bility of shareholders was contrary to
805; 26 L. J. Ex. 81. the general law of partnership, and

(b) Prince of Wales Ass. Co. v. void as against the public. Com-
Harding, W. B. & E. 183; 27 L. J. panies with limited liability were le-

Q. B. 297. galized by “the Companies Act,
(c) Allen v. Sea Fire Ass. Co.,9 C. 1856,” 19 & 20 Viet. c. 47, repealed by
B. 574; Gordon y. Sea Fire Ass. Co., “the Companies Act, 1862,” 25 & 26

1H. & N. 590; 26 L. J. Ex. 202; Vict. ¢. 89, under which they may now
and see Ex p. Greenwood, 3DeG. be constituted.
Contract-
ing by an
agent.

264 CHAP. II. PARTIES TO CONTRACTS.

behalf of the company, provided it is a contract within the
powers of the company to make (a).

Jt has been decided that contracts made by the promoters
of a railway or other company, on behalf of such company,
with the object of obtaining the Act of Parliament by which
the company is to be formed, and of which the company ob-
tains the benefit, are binding, in equity, upon the company
after its formation (b); but the propriety of this decision
has been much questioned (c). A company does not become
bound by, nor can it adopt or ratify, a contract made on its
behalf by the promoters, respecting any matter which is
ultra vires of the company (d).

Caap. IL. Szcr. III. Principat anp AGENT.

 

Contracting by Agent ..,...... 264 | Construction of Contracts as
Appointment of Agent ......... 265 to whether the Principal
Ratification of Assumed Au- or the Agent is the ac-
ChOR by: sc sevionasomaesecncaiien 268 tual Party 00... cece 289
Extent of Authority ............ 270 Liability of Principal upon
General and Particular Contract made by Agent 296
Agents Right of Principal upon
Factor Contract made by Agent 300
Broker Contract made by a Party
Partner ... as Agent, who is himself
Master and Servant ......... 283 the Principal ............... 305
Execution of Agency ... . 284 Contract made by Agent
Revocation of Authority 286 without Authority......... 307

 

A person capable of making a contract may appoint an
agent to make the contract for him. It is not essential that
the agent should be capable of making the contract in his
own right, if the principal who appoints him, is capable (e) ;
but it is necessary that the agent should be capable of con-
tracting in order to become responsible to his principal for
the proper discharge of the agency.

(a) Ridley v. Plymouth Baking Co.,
2 Ex. 711; Smith v. Hull Glass Co.,
11 C. B. 897; 21 L. J. ©. P. 106;
Reuter v. Electric Telegraph Co.,6 EK.
& B. 341; 26 L.J.Q. B.46; and see
Bargate v. Shortridge, 241, J.C. 457;
Grady’s case, 32 L. J. C. 326, 328.

(b) Edwards v. Grand Junction Ry.
Co., 1 My. & Cr. 650; Stanley v.

Chester and Birkenhead Ry. Co.,
3 My. & Cr. 773; Lord Petre v.
Eastern Counties Ry. Co., 1 Railway
Ca, 462.

(ce) See Earl of Shrewsbury v. North
Staffordshire Ry. Co., L. R. 1 Eq. 593,
616

(a) Ib.

(e) See Co. Lit. 52 a, 2.
SECT. III. PRINCIPAL AND AGENT. 265

In general, all contracts and promises may be made through
an agent properly authorized to contract for his principal.
An exception formerly occurred in promises to renew debts
barred by the Statute of Limitations ; which promises were
required by Lord Tenterden’s Act, 9 Geo. IV. c. 14, s. 1, to
be in writing, signed by the party chargeable thereby, and
were held to be not sufficient, if signed by an agent of the
party instead of the party himself (a); but by the Mercantile
Law Amendmient Act, 1856, 19 & 20 Vict. ¢. 97, s. 13, such
promises may now be signed by an agent of the debtor. An
exception still occurs in the ratification after full age of a
promise made during infancy, which by Lord Tenterden’s
Act, s. 5, must be by writing signed by the party to be
charged therewith ; and the Mercantile Law Amendment Act
has not in this case removed the necessity of the ratification
being signed by the party himself.

No particular form is required generally by law for the ap- Appoint-
pointment of an agent to make a contract. The authority oa
may be given in express terms, either written or spoken ; or
it may be implied from the acts and dealings of the parties,
or from their relationship, character, or employment : for in-
stance, the relationship of husband and wife (b), and of part-
ners, the employment of a person of a recognized profession,
orin a particular business, import an agency for certain pur-
poses, and to a certain extent, and so constitute various
modes of appointing an agent.

But in some cases and for some purposes particular forms Power of
are required by law for the appointment of an agent. Thus, “7:
the authority to execute a deed must be given by a deed (c).

This rule applies even between partners, who have a general
authority to bind one another by simple contract in partner-
ship-transactions ; “‘a general partnership agreement, though
under seal, does not authorize partners to execute deeds for
each other, unless a particular power be given for that pur-

(a) Hyde v. Johnson, 2 Bing. N. of in connection with the capacity of
. 776. a married woman, ante, p. 242.

(6) The authority of a wife, as (c) White v. Cuyler, 6 T. R.176;
agent for her husband, has, in defer- Sheppard’s Touchstone, 57 ; Berkeley
ence to the usual practice, been treated v. Hardy, 5 B. & C. 355.

C
Authority
in writing.

Implied
authority.

266 CHAP. II. PARTIES TO CONTRACTS.

pose (a).”” An authority given to an agent to execute a deed
for the principal is commonly called a letter of attorney or
power of attorney.

Under the Statute of Frauds, 29 Car. II., c. 3. 8.1 & 3,
relating to the creation, assignment, and surrender of leases,
and estates and interests in land, it is required that agents
to be appointed to effect such transactions shall be authorized
by writing. Under the 4th section, relating to the contracts
therein described, and the 17th section, relating to contracts
for the sale of goods, though it is required that there be a
memorandum of such contracts in writing and signed by the
party to be charged therewith or his agent lawfully autho-
rized, the mode of authorizing the agent is left open, and it
may be made in any sufficient manner (0).

Authority may be impliedly given by the acts of the prin-
cipal without an express order, as in the following cases :—
If the owner of goods sends them to another, whose com-
mon business it is to sell goods, it is evidence of an authority
to sell them for him; so, if he sends goods to an auction
room, or if he sends a horse to a repository for sale, it can
only be implied that he sends them for the purpose of sale.
«Where the commodity is sent in such a way and to such
a place as to exhibit an apparent purpose of sale, the prin-
cipal will be bound, and the purchaser safe (c).”” Where
the owner of goods entrusted them with a broker whose
ordinary business it was to buy and sell goods of that kind,
it was held that the broker was impliedly authorized to sell
them (d). The effect of the acts of the principal in giving
such authority is a question of fact for the jury (e).

An authority may be impliedly created by an habitual
mode of dealing; as, if a person has been in the habit of
allowing another to draw and indorse bills for him, and has
paid bills so drawn and indorsed, a continued authority
may be implied to act as on previous occasions (f). So, ifa

(a) Harrison y. Jackson, 7 T. R. (d) Pickering v. Busk,15 East, 38.
207, 210. (e) Dyer vy. Pearson, 3B. & C. 38.
(b) Emmerson v. Heelis, 2 Taunt. (f) Prescott v. Flinn, 9 Bing. 19 ;

38, 46; ante, p. 150. and see Davidson v. Stanley, 2M. &
(ce) Pickering v. Busk, 15 Kast, 38, G. 721; Levy v. Pyne, Car. & Marsh.
43. 453.
SECT. Il]. PRINCIPAL AND AGENT. 267

person has been in the habit of paying for goods ordered by
another upon his credit, an authority to pledge his credit in
future may be implied (a).

In some exceptional cases circumstances of sudden ne- ey
cessity or emergency create, or enlarge, an agency for the sees
occasion to contract on behalf of the person whose interests
are involved. The master of a ship, upon an occasion of ne-
cessity arising during the voyage when he cannot communi-
cate with his employer, acquires authority to do such repairs,
and to obtain such supplies and services, and to make such
payments, as are necessary and proper for the prosecution of
the voyage, and, for these purposes, to pledge the credit, or
raise money upon the credit of his employer (). Another
instance occurs in the case of bills of exchange which are
protested for non-acceptance or non-payment; any person
may accept or pay such a bill supra protest for the honour or
on behalf of the drawer or other party to the bill, and is
authorized to do so by the law merchant, upon the necessity
of the case, and may recover his expenses against the party
on whose behalf he has acted (c). To these instances may
be added the case of a husband turning away his wife, or
compelling her by his misconduct to live separate from him,
without an adequate maintenance ; the wife is then invested
by necessity with an authority to pledge the husband’s credit
in order to obtain the means of subsistence (d).

But themere necessity of a person’s affairs, however urgent,
does not, in general, give any authority to another to con-
tract on his behalf (ec). An accident happening upon a rail-
way does. not authorize a station master or other servant
of the company to engage a surgeon on behalf of the com-
pany to attend the wounded passengers ; and, therefore, a
surgeon who had been called to attend a passenger, under
such circumstances, by one of the servants of the railway

(a) See Hazard v. Treadwell, 1 Str. (c) See Byles on Bills, 8th ed. 248,
506; Summers v. Solomon, 7H.&B. 248; Chitty on Bills, 10th ed. 237,338.
879; 26 L. J.Q. B. 301. (d) Johnson v. Sumner, 3H. & N.

(b) Webster v. Seekamp, 4 B.& 261; 27 L. J. Ex. 341; and see Da-
Ald. 352; Arthur vy. Barton,6M.&  vidson vy. Wood, 32 L. J. C. 400; see
W. 1388; Hawtayne v. Bourne, 7M. ante, p. 248.

& W. 595, 599; Beldon v. Campbell, (e) See Hawtayne v. Bourne 7M.
6 Ex. 886. & W. 595.
Ratifica-
tion of
assumed
authority.

268 CHAP. II, PARTIES TO CONTRACTS.

company was held not to be entitled to recover his charges
against the company (a).

Where a person assumes to contract as agent for a prin-
cipal without any authority to do so, the principal may
affirm the contract by a subsequent ratification of that as-
sumed authority; and the principal is then bound by the
contract, and entitled to the benefit of it, to the same extent
as if made by his authority previously given (b). The ratifi-
cation of an assumed authority has been explained as follows:
— The doctrine, ‘Omnis ratihibitio retrotrahitur et mandato
equiparatur, is one intelligible in principle, and easy in its
application, when applied to cases of contract. If A. B., un-
authorized by me, makes a contract on my behalf with J. 8.,
which I afterwards recognise and adopt, there is no difficulty
in dealing with it as having been originally made by my autho-
rity. J. 8. entered into the contract on the understanding
that he was dealing with me, and when I afterwards agreed
to admit that such was the case, J. §. is precisely in the
position in which he meant to be; or, if he did not believe
A. B. to be acting for me, his condition is not altered by
my adoption of the agency, for he may sue A. B. as princi-
pal, at his option, and has the same equities against me, if I
sue, which he would have had against A. B.” (c).

A subsequent ratification is sufficient under the provision
of the Statute of Frauds, which requires a memorandum of
the contract in writing signed by the party or “by his agent
thereunto lawfully authorized.’ It has been observed that
“the subsequent sanction of a contract, signed by an agent,
takes it out of the operation of the statute more satisfactorily
than an authority given beforehand. Where the authority
is given beforehand, the party must trust to his agent; if it
be given: subsequently to the contract, the party knows that
all has been done according to his wishes” (d).

(a) Cox v. Midland Ry. Co., 3 Ex. (ce) Bird v. Brown, 4 Ex. 786, 798 ;
268. as to the rights and liabilities of an
(>) Per Holt, CJ., Bolton v. undisclosed principal referred to in the
Hillersden, 1 L. Raym. 224; 3 Salk. latter alternative of the above pas-
234; Ward v. Bvans, 2 Salk. 442; 2 sage, see post, p. 296, 300.

L. Baym. 928; IWilson vy. Tumman, 6 (d) Maclean v. Dunn, 4 Bing. 722,
M. & G. 286, 242. 727; and see ante, p. 152.
SECT. ITI, PRINCIPAL AND AGENT. 269

The subsequent ratification may be valid although the
principal was not aware of the transaction until after it took
place; and the ratification may be made after an action has
been commenced upon the contract in the name of the
principal (a).

The subsequent ratification may in some cases be equiva-
lent to a prior authority, where the agent professes to act
for persons filling a certain character, although the actual
persons are not then ascertained or are unknown to him (0).
Thus, an administrator, after taking out letters of adminis-
tration, may ratify a contract made before the letters were
taken out by an agent acting avowedly on account of the
estate of the intestate (c). Upon this principle, it is said
that policies of insurance may be effected in respect of the
interest of persons who could not be named at the time,
provided they were such as were.contemplated at the time of
making the policy, and intended to come within it (d). But,
where a broker, having effected a general policy with the
defendant on goods ‘to be valued and declared as interest
might appear,” and having afterwards received an order
from the plaintiff to insure certain goods for him, indorsed a
declaration of the plaintiff’s goods on the policy, it was held
that the plaintiff could not sue on the policy, because it had
not been made with him, nor on his behalf, and was not in-
tended at the time it was made to be so applied (e).

“The rule as to ratification applies only to the acts of one
who professes to act as the agent of a person who afterwards
ratifies” (f). A written agreement was made purporting to
be between an agent on behalf of the wife of the plaintiff of
the one part, and the defendant of the other part; it was
held that the plaintiff was not entitled to ratify the agree-
ment, and join his wife in suing upon it: according to the
judgment of Holroyd, J., “If the agent at the time when

(a) Ancona v. Marks, 7 UW. & N.
686; 31 L. J. Ex. 163.

(b) Foster v. Bates, 12 M. & W.
226, 233 ; and see Hull v. Pickersgill,
1 Bro. & B. 282.

(ce) Foster v. Bates, 12 M. & W. 226.

(d) Per Erle, CJ., Watson v.
Swann, 11 ©. B. N.S. 756, 769; 31

L. J. C. P. 210, 213; and see Lucena
y. Craufurd, 2 B. & PLN. R. 269;
Routh v. Thompson, 11 East, 428; 13
East, 274.

(ce) Watson v. Swann, supra.

(f) Per Parke, J., Vere v. Ashby,
10 B. & C. 288, 298 ; Wilson v. Tum-
man, 6 M. & G. 236, 242.
Extent of
authority.

Construc-
tion of
written
authority.

270 CHAP. II, PARTIES TO CONTRACTS.

he made the agreement had professed to have authority to
act for the husband, then the subsequent ratification would
have been a recognition of the authority which the agent
assumed to have when he made the agreement; but here the
husband never previously authorized the agent to make the
agreement on his behalf, nor is he named as a party for
whom the latter professed to act” (a).

Where the authority of the agent is given in express
terms, written or spoken, the nature and extent of authority
is defined by the terms expressed. Where the authority is
implied, the relationship, or employment, or circumstances
from which it is implied define the nature and extent of the
authority.

The construction of a power of attorney, and of all other
written authorities, is for the Court; and where the original
document has been lost and secondary evidence given of the
contents, the construction of the contents so proved is for
the Court (4). The giving of an authority to an agent by
a written document imports, generally, that the extent of
the authority is defined exclusively in the writing; conse-
quently no extrinsic evidence is admissible to vary it (c).
But this general rule is subject to exceptions, analogous
to those laid down with respect to agreements in writing ;
thus, where terms are used with reference to particular
usages of trade, or where agents are employed under a
particular designation or character, or for a particular de-
finite purpose, extrinsic evidence may be given to explain
the usage of trade, or the recognized character of the agent,
or the purpose for which he is authorized to act (d).

Powers of attorney are construed strictly; terms of ge-
neral authority contained in them are restricted by the par-
ticular terms or purpose of the instrument (¢). A power
of attorney to receive all money due to the principal, and to
transact all business for him, was held not to authorize the
agent to indorse bills received in payment (f). A power of

(a) Saundersony. Griffiths, 5 B. & (d) Ante, p. 110.

C. 909. ‘ (e) Attwood v. Munnings,7 B.& C.
(b) Berwick y. Iorsfall, 4 C.B. 278; Withington v. Herring, 5 Bing.
N. 8. 450. 442, 456.

(ce) Hogg v. Snaith, 1 Taunt. 347. (f) Hoggv. Snaith, 1 Taunt.3 17,350.
SECT. III. PRINCIPAL AND AGENT. 271

attorney given by an executrix to act for her as executrix
was held not to authorize the accepting of bills for debts
due from the testator, so as to charge her in her own
right (a). But “an authority given by a power of attorney
necessarily includes medium powers, though they are not ex-
pressed, that is, all the means necessary to be used in order
to obtain the accomplishment of the principal power”? (0).
A power of attorney authorizing the agent ‘‘to charter a
ship, or employ her in such manner as he should think pro-
per, and generally to act for and represent the owners in
relation to the ship as fully as if the owners were personally
present,” was held to give authority to the agent to bind
the owners by a warranty in a charterparty that the ship was
Al at Lloyd’s; and the owners were heldsliable for a breach
of such warranty (c).

With reference to the extent of the authority of an agent, General
a distinction is drawn between a general and a particular or Tone ae
special authority, and between general and particular or
special agents. The former expression includes brokers,
factors, partners, and all persons employed in certain recog-
nized characters and businesses, the extent of authority
being settled by the character or business in which they are
employed; the latter denotes an agent appointed for a
single particular purpose, not filling any recognized charac-
ter or profession, the extent of whose authority is defined
precisely by the terms of his appointment (d).

If a principal employs an agent in a particular trade or General
business in which there are established usages regulating “thority.
the agency, the authority of the agent presumptively in-
cludes and is regulated by such usages (ec). Thus, when a
principal authorizes an agent to sell goods for him, he au-
thorizes him to give all such warranties as are usually given

(a) Gardner v. Baillie, 6 T. R. (d) See Whitehead v. Tuckett, 15
591; and see Howard v. Baillie, 2 Fast, 400, 408; per Buller, J., Fenn
H. BL 618. y. Harrison, 3 T. R. 757, 762.

(5) See Howard v. Baillie, 2 H. (e) Bayliffe v. Butterworth, 1 Ex.
Bl. 618, 619. 425, 429 ; Sweeting v. Pearce, 7 C. B.

(c) Routh v. Macmillan, 2H. & C0. N.S, 449, 482; 29 L. J.C. P. 265,
750; 33 L. J. Ex. 38. 271.
Particular
instruc-
tions re-
stricting
general au-
thority.

272 CHAP. II. PARTIES TO CONTRACTS.

in the particular trade or business (a). Ifa person employs
a broker on the London Stock Exchange, he impliedly
gives him authority to deal according to the. rules and
usages there established. Accordingly, he authorizes the
broker to pay the price of purchases made for him (4), and
to pay the loss on contracts made for him which he fails
to complete (c). So, a person who employs a broker to
sell shares on the Stock Exchange of Liverpool gives him
authority to deal according to the usage there established (d).
A person who employs a broker to effect an insurance at
Lloyd’s, is not bound by the usages prevailing amongst
brokers and underwriters doing business there, with which
he is not acquainted ; because they are the usages of a par-
ticular house only,’ and not general usages of the business
in London (e) ; but if he employs a broker there with know-
ledge of the usages he is bound by them (f).

A general authority is also subject to all the restrictions
and limitations which are usual in the particular business.
Thus, a broker employed to sell stock cannot sell it upon
credit without a particular authority to that effect, it being
unusual for brokers to do so (g). So, an authority to sell
goods given to a broker in the Irish provision trade was
held to be restricted by the usage of the trade to the day on
which it was given (h).

Where an agent is employed with a general authority,
particular instructions given to him by his principal, or pri-
vate dealings between them limiting the general authority,
but of which the party dealing with the agent has no notice,
are ineffectual to restrict the apparently general authority as
against the latter party (é). Accordingly, a letter of instruc-

(a) Dingle v. Hare,7 C. B.N.S.
145; 29 L. J. C. P. 143.

(6) Smith vy. Lindo, 4C. B. N.S.
395 ; Taylor v. Stray, 2C.B. N.S.
175,197; 26 L. J. C. P. 185, 287;
and see Bailey v. Wilkins, 7 0. B.
886 ; Stray v. Russell, 1 Ki. & EB. 888,
916; 28 L. J. Q. B. 279; 29 ib.115.

(ce) Suttonv. Tatham, 10 A. & BE. 27.

(d) Bayliffe v. Butterworth, 1 Ex.
425; andsee Graves v. Legg, 2 U1. &
N. 210; 26 L. J. Ex. 316.

(e) Gabay v. Lloyd, 3 B. & C. 793;

Bartlett v. Pentland, 10B. & C. 760;
Scott v. Irving, 1 B. & Ad. 605;
Sweeting vy. Pearce,7 CO. B.N.S8. 449;
9 ib. 5384; 29 L. J.C. P. 265; 307d.
109.

(f) Stewart v. Aberdein, 4 M. &
W. 211.

(g) Wiltshire y. Sims, 1 Camp. 258.

(4) Dickinson v. Lilwall, 4 Camp.
279.

(2) See Pickering v. Busk, 15 East,
38; Whitehead v. Tuckett, 15 Fast,
400; Truemany. Loder, 11 A.& E.589,
SECT. MI. PRINCIPAL AND AGENT. 273

tions sent by the principal to a commission agent employed
to sell goods for him, relative to the sale, but not communi-
cated to the purchaser, was held not to be admissible as evi-
dence respecting the terms of the contract of sale made by
the agent (a). The defendant employed an agent in the
management of a business, to which the drawing and ac-
cepting of bills of exchange was incidental, but instructed
him not to accept bills; the defendant was held liable upon
bills accepted by the agent in the name in which the busi-
ness was carried on (b). But if it is usual in a particular
business for the authority of the agent to be limited, the
party dealing with the agent is bound by the limit of the
authority actually imposed ; as where an insurance broker
at Liverpool was authorized by the defendant to underwrite
policies of marine insurance in his name to an amount not
exceeding £100 on each vessel, and the broker underwrote
a policy for the plaintiff for £150, it being well known that
at Liverpool such brokers generally act under a limited au-
thority as to the amount for which they can sign their prin-
cipal’s name, though the exact limit is not publicly known,
it was held that the defendant was not lable on the policy,
made by the broker in excess of his authority (¢).

A particular agent constituted for a particular purpose, Particular
and with a limited and circumscribed power, cannot bind the ee
principal by any act in which he exceeds his authority ; a per-
son dealing with such an agent is bound to ascertain the ex-
tent of his authority, and cannot charge the principal with a
contract exceeding the authority actually given. Thus, where
a servant was authorized by his master, who was not a re-
gular horsedealer, to sell a horse with an express order not
to sell it under a certain sum, and the servant, notwithstand-
ing, sold it for a less sum, it was held that the master might
repudiate the sale and recover back the horse (d). So, a
servant authorized by his master to sell and deliver a horse
on one particular occasion, the master not being a horse-
dealer, is not by law authorized to give a warranty ; and the

(a) Smethurst v. Taylor, 12 M. & (e) Baines v. Ewing, L. R. 1 Ex:

W. 545. 320; 35 L. J. Ex. 194.
(b) Edmunds v. Bushell, L. R. (d) Case cited in Whitehead v.-
1Q.B.97; 35 L. J. Q. B. 20. Tuckett, 15 East, 400, 407.

1
Factor.

DTA
al CHAP. Il. PARTIES 10 CONTRACTS.

master would not be bound by a warranty, unless he in
fact authorized it to be given (a). But the servant of a
horsedealer or livery stable-keeper employed by his master
to sell a horse in the course of his business, would by law
have the authority to bind his master by a warranty (0).
And it seems that a servant sent to sell a horse in a fair or
other public mart, where the usual course of business is for
the person in possession of the horse to have all the powers
of an owner in respect of the sale, would have such au-
thority (ce).

A factor is an agent of a general character, to whom
goods are consigned for sale by merchants residing abroad
or at a distance from the place of sale. The recognized
character of a factor includes an authority to sell the goods
in his own name (d) ; also to sell upon credit without any
special authority to do so (¢); to receive payment for the price,
and give a discharge to the buyer (/).

A factor has a lien upon the goods in his hands, and also
upon the price in the hands of the buyer after sale, for ad-
vances made to his principal, and for the general balance of
account with his principal arising out of his employment (q);
his lien on the goods for advances does not give him an irre-
vocable authority to sell, against the orders of his prin-
cipal, unless the advances have been made upon a special
agreement to that effect (h). But after parting with the
possession of the goods to a buyer he has a right of pay-
ment to the extent of his lien, notwithstanding notice given
by the principal to the buyer not to pay him (:).

(a) Brady v. Todd, 9 C. B. N.S.
592; 30 L. J. C. P. 223.

(b) Brady v. Todd, 9 C. B.N. 8.
592,604; explaining Helyearv. Hawke,
5 Esp. N.C. 72; Alexander v. Gib-
son, 2 Camp. 55D.

(ec) Brady v. Todd, 9 C. B. N.S.
592, 606 ; and see Fenn y. Harrison.
37. R. 757, 760.

(d) Baring v. Corrie, 2B. & Ald.
137; Johnston v. Ushorne, 11 A. &
E. 549.

(e) Scott v. Surman, Willes, 400,
407; and see 1 Camp. 259 n.

(f) Drinkwater v. Goodwin, Cowp.
251, 255; Hornby v. Lacy, 6 M. &
8. 166, 172.

e% ‘Houghton v. Matthews, 3 B. &

485; Baring v. Corrie, 2 B. &
Ala. 137; Drinkwater v. Goodwin,
Cowp. 251.

(h) Raleigh v. Atkinson, 6 M. &
W. 670; Smart \. Sandars, 5 C. B.
895.

(i) Houghton v. Matthews, 3 B.
& P. 485, 489; Drinkwater v. Good-
nt Cowp. 251 ; Hudson v.Granger, 5

B. & Ald. 27.
SECT. III. PRINCIPAL AND AGENT. 275

A factor, at common law, was not authorized to pledge
the goods, and did not by such unauthorized act convey any
right in the goods even to the extent of his lien (a); but by
the effect of some modern statutes validity is given to pledges
of goods made by agents entrusted with the possession of
the goods in certain cases (b). He has no authority to barter
the goods for other goods instead of selling them for money; ~~
and the principal may recover back the goods from the per-
son to whom they have been delivered under such contract
of barter (c).

A broker is an agent whose business is to buy and sell Broker.
goods for his employers, and differs from a factor in not
being entrusted with the possession of the goods, and not
having authority to sell in his own name (d).

It is the duty of the broker to enter and sign the contracts
made by him in his broker’s book ; and this entry, if made,
constitutes a binding contract between the parties. Until
recent times this duty was scrupulously performed by every
broker; and signed copies of the contract so entered, called
the bought and sold notes, were sent by him to his princi-
pals, by way of information that he had acted upon their
instructions, but not as the actual contract which was to be
binding between them. But the broker now omits to enter
and sign any contract in his book, and still sends the
bought and sold notes as before (e).

If the contract.is not entered in the broker’s book, the
bought and sold notes sent by him are sufficient evidence of
a binding contract (f); and it has been held that, if a con-

(a) M‘Combie v. Davies, 7 East, 5;
Graham vy. Dyster, 6 M. & 8.1;
Queiroz v. Trueman, 3 B.& C. 342.

(b) See 4 Geo. IV. c. 83; 6 Geo. IV.
94 (commonly called the Factors’
Act); and 5 & 6 Vict. c. 39; as to
these statutes see Chitty’s Stat. tit.
“Factors ;’? 1 Smith’s L. C. 5th ed.
740-745.

(ce) Guerreiro v. Leile, 3B. & Ald.
616.

(d) Baring v. Corrie, 2B. & Ald.
137; Johnston v. Usborne, 11 A. &
EB, 549.

(e) Per Lord Campbell, C.J.,
Sievewright v. Archibald, 17 Q. B.
103, 125; 20 L. J. Q. B. 529, 538;
Abbott, C. J., Grant v. Fletcher, 5 B.
& C. 436, 437; Heyman v. Neale, per
2 Camp. 337. See the bond required
upon admission as broker in the City
of London, Clarke v. Powell, 4B. &
Ad. 846 ; and see the statutes relating
to brokers, ib.; Chitty’s Statutes, tit.
“ Brokers.”

(f) Goom v. Aflalo, 6 B. & C.
117; Stevewright v. Archibald, 17
Q. B. 103.

T2
276 CHAP. II, PARTIES TO CONTRACTS.

Broker. tract is made and entered in the broker’s book, and bought
and sold notes have been delivered importing a different
contract, the acceptance of those notes by the parties with-
out objection may constitute evidence of a new contract made
between them according to their terms (a).

If the bought and sold notes vary they are not evidence
of any contract between the parties (d) ; but either note alone
is sufficient evidence of the contract, in the absence of proof
of variance in the other and of any other proof to the con-
trary (c). A variance between the bought and sold notes,
caused merely by using different expressions, which accord-
ing to mercantile usage bear substantially the same mean-
ing, may be reconciled by evidence of such usage (d).

A broker is authorized to make and sign the contract for
his principal in a manner to satisfy the Statute of Frauds (¢) ;
and the signed entry of the contract in his book would be
a sufficient memorandum of a sale of goods within the 17th
section (f). The bought or sold note would also be a suffi-
cient memorandum (q) ; but it is open to the party so charged
to show that the note produced does not agree with the con-
tract really made (h). In the case of Sievewriyht v. Archi-
bald (/) the two sale notes produced in evidence varied in
their terms, but one of them agreed with the contract as
charged; Erle, J., held that evidence was admissible to
show that the contract really made agreed with that note, so
as to render it a sufficient memorandum of the contract ;
but the other judges held that if there appears a material
variance between the bought and sold notes, they cannot be
used as a memorandum within the statute.

Deleredere A del credere commission imports that the agent guaran-

agent.

(a) Hawes vy. Forster, 1 M. &
Rob. 368, explained by Parke, B.,
in Thornton v. Charles, 1 M. & W.
802, 807 ; and see Sievewright v. Ar-
chibald, 17 Q. B.103; 20 L. J.Q.B.
529.

(6) Ante, p.15; Lhornton v. Kemp-
ster, 5 Taunt. 786 ; Grant v. Fletcher,
5 B. & C. 436; Gregson v. Ruck, 4
Q. B. 737; Sievewright vy. Archibald,
17 Q. B. 103.

(c) Parton v. Crofts, 16 C. BLN.
8.11; 831. J.C. P. 189.

(d) Bold vy. Rayner, 1 M. & W.
343 ; Kempson v. Boyle, 34 L. J. Ex.
191; ante, p. 116.

(e) See ante, p. 141.

(f) Sievewright v. Archibald, 17Q.
B. 108 ; 20 L. J. Q. B. 529.

(g) £b.; Goom vy. Aflalo, 6B. & C.
117; Parton vy. Crofts, 33 L. J.C. P.
189.

(h) Pitts vy. Beckett, 13 M. & W.
743.

(4) Supra ; and see Moore v. Camp -
bell, 10 Kx. 823; 23 L. J. Ex. 310.
SECT. IIT. PRINCIPAL AND AGENT. 277

tees the due payment of the price of the goods sold by him
for his principal (a); but it is held not to be a promise to
answer for the debt of another within the Statute of
Frauds (6). It does not at all vary the rights and relation
between the principal and the buyer of the goods (ec).

Tt is a legal incident of partnership that each partner is Partners.
an agent of all to carry on the partnership business in its
ordinary course, and has authority, for and on behalf of all, Authority
to make such contracts as are necessary, proper, and cus- 2 ats
tomary in the conduct of the partnership business (d). This en
general authority does not extend to contracts under seal, ship.
for the execution of which on behalf of the partners an
authority under seal is necessary ; and “ a general partner-
ship agreement, though under seal, does not authorize the
partners to execute deeds for each other, unless a particular
power be given for that purpose”’ (ce).

In the case of Wangh v. Carver it was laid down that a
person taking a share of the profits of a business became
lable, by operation of law, to the debts of the business,
upon the principle that by taking a part of the profits he
took from the creditors a part of that fund which is the pro-
per security to them for the payment of the debts; but it is
now recognized that the true question, with reference to the
hability of a person charged as a partner with the partner-
ship debts and contracts, is whether the business is carried
on on his behalf, and that the participation in the profits,
though an important element in determining that question,
is not in itself decisive (f).

Where the partnership has a peculiar character pub- Partner-

ships ex-
celudin,
(a) Morris v. Cleasby,4 M.& $. 158, 158. authority,
566, 574. (e) Harrison v. Jackson, 7 T. BR.
(b) Ante, p. 127. 207, 210.
(ec) Morris v. Cleasby, supra; (f) Waugh v. Carver, 2H. Bl. 235;

Hornby v. Lacy, 6 M. &8. 166; Cat- 1 Smith’s L. C. 5th ed. 818; and see
terall vy. Hindle, L. R.1C.P.186,191; Er p. Hamper, 17 Ves. 412; Cor v.
35 L. J. C. P. 161, 168. Hickman, 8 H. L. C. 268; Bullen v.

(d) Hawken v. Bourne,8 M.& W. Sharp, L. R. 1 C. P. 86; and see 28
703, 710; Fox v. Clifton, 6 Bing.776,  & 29 Vict. c. 86, expressly providing
795; Brettel v. Williams,4Ex. 623; that participation in profits, upon
per Blackburn, J., Cor v. Hickman, loans and under certain other cireum-
8 H.L. C. 268, 279; 30 L. J.C. P. — stances thereinspecified, shall not con-
125,128; Pole v. Leask, 33 L.J.C. — stitute a partnership.
Partner-
ships ex-
eluding
authority,

Revocation
and restric-
tion of au-
thority of
partner.

278 CHAP. II, PARTIES TO CONTRACTS.

licly known and recognized, the general agency of each
partner on behalf of the firm may be excluded by the cha-
racteristic constitution of the partnership. Such is the case
with mining adventures conducted on the cost book prin-
ciple. ‘ The business of such mines is carried on quite dif-
ferently from that of an ordinary trading firm. Regular calls
are made, as money is wanted for the purpose of the partner-
ship, which are paid down; and the directors have only
authority to manage the concern with the funds so supplied,
but not to pledge the credit of individual shareholders” (a).
In a club conducted on ready money principles, the com-
mittee appointed to manage its affairs were held not to be
authorized to pledge the personal credit of the members for
the things supplied to the club and used by them (0).

In the recent case of Cox v. Hickman, the business of an
insolvent was carried on by trustees under a deed of assign-
ment for the benefit of creditors, providing for the carrying
on of the business by the trustees, and for the division of

the profits rateably amongst the creditors until their debts

were paid ; it was held in the House of Lords that the cre-
ditors executing the deed were not liable, as partners, for
debts contracted by the trustees in the name and for the pur-
poses of the business (c).

The general authority of a partner may be revoked by an
express notice to that effect given to the person dealing with
the partner assuming to exercise such authority (d). But
“any restriction which, by agreement amongst the part-
ners, is attempted to be imposed upon the authority which
one possesses as a general agent for the other, is operative
only between the partners themselves; and does not limit
the authority as to third persons, who acquire rights by its
exercise, unless they know that such restriction has been

(a) Ricketts v. Bennett, 4 C. B. (b) Flemyng v. Hector, 2M. & W.
686, 701; see further as to the liae 172; and see Todd vy. Lmly, 7 M. &
bility of adventurers in mines, Dickin- | W. 427.
son v. Valpy, 10 B.& C.128; Zved- (ce) Cox v. Hickman, 8 H. L. ©.
wen v. Bourne, 6 M. & W. 461; 268; 9 C.B.N.8.47; 30.L. J. C.P.
Hawlaynev. Bourne, 7M. & W. 595 ; 125; Wheatcroft v. Hickinan, ib.
Hawken v. Bourne, 8 M. & W. 7038; (d) Willis v. Dyson, 1 Stark. 164;
Burmester vy. Norris, 6 Ex. 796; Galway v. Matthew, 10 East, 264;
Brown v. Byers, 16M. & W. 252. Pice v. Fleming, 1 Y. & J. 227, 230.
SECT. III]. PRINCIPAL AND AGENT. 279

made” (a). The authority is also put an end to by a disso-
lution of the partnership ; but if the business is continued in
the name of the old firm, the original partners may continue
liable to persons dealing with the firm, unless the notice of
their retirement, or of the dissolution of the partnership as
regards them, is made sufficiently public, as by notice in the
‘Gazette,’ or other sufficient means, brought home to such
persons (0).

Even if a partner exercises his authority in fraud of the
other partners, his contract binds them, unless the party with
whom he deals colludes with him in the fraud, or has notice
of it; as where a partner purchases goods on the partner-
ship account, and converts them to his own separate use, the
other partners are liable for the price, unless the seller col-
ludes in the fraud upon them (c); and where a partner,
having authority to negotiate bills on behalf of the partner-
ship, indorsed bills in the partnership name to a banker for
discount, and applied the proceeds to other than partnership
purposes, the other partners were held liable on the bills (@).

The authority of one partner to bind another by con-
tracts is limited to matters within the general scope of the
partnership business or the particular purpose for which
they are partners (e). Thus, one partner is not, in general.
entitled to give a guarantee in the partnership name for a
debt for goods supplied to a third person (f) ; and it was held
that such a guarantee was not justified merely on the ground
that it was conducive to the partnership purposes, as where
it was given in favour of a person with whom the partner-
ship had contracted for work for which the goods were sup-
plied (q).

A guarantee given by one of a firm of attorneys for the
debt and costs in an action brought against a client, in con-

(a) Hawken v. Bourne, 8 M. & W. (c) Bond vy. Gibson, 1 Camp. 185 ;
703,710; see ante, p. 272. and see Bignold v. Waterhouse. 1 M.
(b) Abel v. Sutton, 8 Esp. 108; &S. 255.
Parkin vy. Carruthers, 3 Esp. 248; (d) Vere v. Ashby, 10 B. & C. 288;
Newsome v. Coles, 2 Camp. 617; see post, p. 282.
Barfoot v. Goodall, 3 Camp. 147; (e) Brettel v. Williams, 4 Ex. 623,
Farrar vy. Deflinne, 1 C. & K. 580; 680.
Galway v. Matthew, 10 East, 264 ; (f) Ib.; Duncan vy. Lowndes, 8

Hart v. Alexander, 2M. & W. 484; Camp. 478. a
and see Dixon on Partnership, 504. (g) Brettel v. Williams, supra.

Contracts
yy one
artner in

fraud of the

others.

Authority
limited by
the pur-
poses of the
partner-
ship.
Authority
of partner
as to bills

and notes.

280 CHAP. IJ. PARTIES TO CONTRACTS.

sideration of his discharge from custody was held not to be,
within the usual course of the business of attorneys and not
binding on the firm (a); but a guarantee may be so con-
nected with a partnership transaction as to come within the
authority of a partner (4). One partner has no implied
authority to bind the rest by a reference to arbitration re-
specting partnership matters (c).

Where it is necessary or usual in the conduct of the
partnership business, as is generally the case in commercial
partnerships, to draw, accept, or indorse bills of exchange
or promissory notes in the name of the firm, each partner
has authority to do so (d). One of a partnership of attorneys
has no implied authority to bind his partners by putting the
name of the firm to a negotiable instrument ; because it is
not necessary or usual in the business of attorneys to be-
come parties to such instruments (e). So, such authority
does not exist, because not necessary or usual, in partner-
ships for carrying on mining (f), or farming business (9).

The authority of a partner to bind his partners by signing
negotiable instruments may be exercised in the names of all
the individual partners (4); or by using the partnership
name, which will bind those persous whom in fact it repre-
sents (i); but the partners cannot be charged on instru-
ments of that kind signed by one partner in his own name
only, or by a name not representing the partnership (/).

Where the partnership name was “J. B.” only, and one
of the partners accepted a bill in the name of “J. B. & Co.,”
it was held that, as it was not accepted in the name autho-
rized by the partnership, the other partner was not bound (k).

(a) Haslehamv. Young, 5 Q. B. 833.

(8) See Sandilands vy. Marsh, 2 B.
& Ald. 673; Dixon on Partnership,
290.

(ce) Adams v. Bankart,1C.M. &R.
681; Stead v. Salt, 3 Bing. 101;
Hatton v. Royle, 3 H. & N. 500; 27
L. J. Ex. 486.

(d) Per Lord Kenyon, C.J., Harri-
son v. Jackson, 7 T. R. 207, 210;
Swan v. Steele, 7 East, 210, 213; Né-
cholsonv. Ricketts, 2 EH, & B. 497, 524;
29. J. Q. B. 55, 64.

(e) Hedley v. Bainbridge, 3 Q. B.

316 ; Levy v. Pyne, Car. & M. 453.

(f) Dickinson v. Valpy, 10 B. & C.
128 ; ante, p. 278.

(g) Per Littledale, J., Dickinson vy.
Valpy, 10 B. & C. 128, 188; and see
Greenslade v. Dower, 7 B. & C. 635.

(h) Norton v. Seymour, 3 C. B.792.

(2) Carter vy. Whalley, 1 B. & Ad.
11; Stephens v. Reynolds, 5 H. & N.
518; 29 L. J. Ex. 278.

(7) Emly v. Lye, 15 East, 7; Kirk
v. Blurton, 9 M. & W. 284; Faith v.
Richmond, 11 A. & EB. 339.

(&) Kirkv. Blurton, 9 M. & W. 284.
SECT. III. PRINCIPAL AND AGENT. 281

Partners in a business carried on under the name of “ The
Newcastle and Sunderland Wallsend Coal Company’’ were
held not to be bound by a note drawn by one of them in the
name of “The Newcastle Coal Company” (a). ‘The pro-

“prietors of the Union Bank of Calcutta’? was held to be a
sufficient designation, in the signature to a note, to bind a
partner in “The Union Bank of Calcutta” (b). So, a note
signed by directors ‘‘ for themselves and other shareholders
of the Royal Bank of Australia” was held sufficient to bind
the partnership called “The Royal Bank of Australia’? (c).
In such cases it is a question for the j jury whether the desig-
nation used, though slightly inaccurate, is substantially thet
of the firm (d).

The name of one partner may represent a firm, so that the
other partners may be bound by a negotiable instrument
signed by that partner’in his own name in the course of the
business (¢). If a bill of exchange is addressed to a firm
and accepted by a partner in it on behalf of the firm, he
binds himself as a member of the firm, although he may
have no authority to bind the other partners (f).

A partner, in the exercise of his authority to bind his
co-partners, can only bind them jointly, and cannot, by any
instrument, make them separately lable. Hence, a bill or
note made by a partner on behalf of the partnership in a
joint and several form binds the partners jointly only, and is
void as a several security (g). Such an instrument will bind
partners severally who sign it in their own right (kh). A
promissory note in the form “I promise to pay,” etc. signed
by a partner in his own name, but expressly as agent for the
partnership, is a joint note binding all the partners (7), and

(a) Faith v. Richmond, 11 A. & E.
339.

(b) Forbes v. Marshall, 11 Ex. 166.

(ce) Maclaev. Sutherland, 3 BH. & B.
1; 23 L. J. Q. B. 229.

‘@) Faith v. Richmond, supra; and
see Stephens v. Reynolds, 5 5 H.& N.
513; 29 L. J. Ex. 278.

(6) South Carolina Bank v. Case,
8B. & C. 427; see Stephens v. Rey-
nolds, 5 H: & N. 518; 29 L. J. Ex. 278.

(f) Owen v. Ton Uster, 10 C. B.
318; and see Nicholls v. Diamond, 9

Ex. 154; as to the effect of the accept-
auce by a partner in his own name
only of a bill drawn on the firm, see
Mason v. Rumsey, 1 Camp. 384;
Jenkins v. Morris, 16 M. & W. 877;
19 & 20 Vict. c. 97, 8.6; Dixon on
Partnership, p. 281.

(g) Maclae v. Sutherland, 3H. & B.
1; 23L. J. Q. B. 229.

(2) Ib.; Penkivil vy. Connell, 5 Ex.
381.

(*) Lord Galway v. Matthew, 1
Camp. 403.
Awhority
of partner
as to bills
and notes.

282 CHAP. II. PARTIES TO CONTRACTS.

does not bind severally the partner who signed, because he
signed only as agent (a).

Where one of several partners, having authority to raise
money for the use of the firm, did so by drawing bills of
exchange in his own name only as security for the loan to
the firm, it was held that, though the other partners were not
liable on the bills, they might be sued for the money lent (0);
but where a partner raised money by discount of his own
bill, the party who advanced the money was held not to be
entitled to charge the firm with the amount as money re-
ceived to his use, merely by reason of the money having been
applied to the use of the partnership (c).

Where one partner uses his general authority to negotiate
bills or notes in fraud of the partnership, the instruments
negotiated by him are valid against the other partners in
the hands of a holder who takes them without notice of the
fraud ; as where a banker discounted bills indorsed in the
partnership name by one of the partners, who afterwards
misapplied the money, the banker, who did not know of his
intention to misapply the money, was held entitled to re-
cover on the bills against the other partners (d). But in an
action brought by the holder of such an instrument against
the other partners, proof that the instrument was negotiated
in fraud of the partnership casts upon the plaintiff the
burden of proving that he gave value for the instrument,
according to the general rule applied to bills proved to be
tainted with fraud in their inception (e).

Ifa person takes a partnership bill, knowing it to have
been negotiated by one of the partners without authority or
in fraud of the partnership, he cannot charge the other
partners (f). If a separate creditor of one partner takes
from him a partnership bill for his own separate debt, know-
ing it to be given without the consent of the other partners,

(a) Ex p. Buckley, 14M. & W. 469;
overruling Hall v. Smith, 1 B. & C
407.

(6) Denton v. Rodie, 3 Camp. 493 ;
Maclae v. Sutherland 3 E. & B. 1;
23 L. J. Q. B. 229.

(c) Emly v. Lye, 15 East, 7.

(d) Vere vy. Ashby, 10 B. & C. 2885

and see Lloyd v. Ashby, 2B. & Ad. 23.

(e) Hogg v. Skeen, 18 C. B. N.S.
426; 34 L. J. C. P. 158; differing
from Musgrave v. Drake, 5 Q. B. 185.

(f) Lord Galway vy. Matthew, 1
Camp. 403; 10 East, 264; Arden v.
Sharpe, 2 Esp. 524; and see Byles on
Bills, 8th ed. 43.
SECT. II], PRINCIPAL AND AGENT. 283

it is void as being a fraud upon the other partners ; and the
mere fact of a partner giving a partnership bill for his sepa-
rate debt raises a presumption that it is an unauthorized
act (a).

In the relation of master and servant there is no implied Master and
authority in law in the servant to bind the master by con- oo
tracts (b). Thus, “if a man sends his servant with ready
money to buy goods, and the servant buys upon credit, the
master is not chargeable” (c). So, if a master is accus-
tomed to deal with a person through his servant with ready
money, he is not bound to pay credits made by the servant
without authority (d).

But the master is bound by his usual mode of dealing with Saas
others through his servant ; thus, “if a servant usually buy rors halbi-
for his master upon credit, and takes up things for his own per i
use in his master’s name, the master is lable” (e). One in- servant.
stance of agency of a servant recognized by the master to
purchase goods on his credit has been held sufficient to make
the master liable for the subsequent orders of the servant,
until the authority was known to have been withdrawn (f).

A servant entrusted with the management of a shop of the
defendant was in the habit of ordering goods for the supply
of the shop from the plaintiff, who came to take such orders
and delivered the gocds at the shop, which the defendant
paid for ; it was held that there was evidence of a general
authority in the servant to order such goods from the plain-
tiff on his master’s credit, and that the defendant was lable
to pay for goods, though obtained by the servant from
the plaintiff elsewhere than at the shop, and though the

servant absconded with them (4).

(a) Shirreff v. Wilks, 1 East, 48 ;
Leverson vy. Lane, 13 C. B. N.S. 278;
82 L. J. C. P.10; Ev p. Darlington
Joint Stock Banking Co., 34 L. J
Bankr. 10; and see Hood v. Aston, 1
Russ. 412; Wintle v. Crowther, 1 C.
& J. 316.

(6) Bolton v. Hillersden, 1 L.
Raym. 224; Ward v. Evans, 2 Salk.
442; 2.1L. Raym. 928; Flemyng v.
Hector, 2M. & W. 172, 181.

(c) Per Holt, 0.J., Anow., 1 Shower,

95; Stubbing v. Heintz, 1 Peake, 66 ;
and see per Lord Abinger,C.B., Hector
v. Flemyng, 2 M. & W. 172, 181.

(d) Southby v. Wiseman, 3 Keb.
625; Rusby v. Scarlett, 3 Esp. 76.

(e) Per Holt, C.J., Bolton v. Hil-
dersden, 1 L. Raym. 224; 3 Salk. 234;
Anon. 1 Show. 95.

(f) Hazard v. Treadwell, 1 Str.
506. :

(g) Summers v. Solomon, 7E. & B.

879; 26 L. J. Q. B. 301.
Ratifica-

tion of ser-
vant’s con-

tract.

Execution
of agency.

Joint au-
thorities.

284 CHAP. IJ. PARTIES TO CONTRACTS.

A servant employed by his master on one particular occa-
sion to sell and deliver a horse is not by Jaw authorized to
bind his master by a warranty (a) ; but the servant of a horse-
dealer, or livery stable-keeper, authorized by his master to
sell a horse would be invested with an apparent authority
to sell the horse with a warranty, such being an ordinary
way of selling in his master’s business; and an express di-
rection to him not to warrant would not affect the validity of
a sale to a purchaser who had no notice of it (b).

A master may also become bound by ratifying the con-
tract made by his servant on his behalf; as, if the master were
to accept the goods bought by his servant on credit, know-
ing them to be so bought, or otherwise take the benefit of
the contract, he would be bound (c).

In the execution of an agency the authority should b
strictly followed.

If an authority or power of attorney is given to several
persons jointly, without providing that some only of them
may act, they must all join in executing it; if it is given to
them jointly and severally, they must either jomtly or se-
verally act under it (d). A power of attorney was given to
fifteen persons, jointly and severally, to execute such policies
as they, or any of them, should, jointly or severally, think
proper; it was construed to be a power given to all, or any
of them, to sign such policies as all, or any of them, should
think proper, so that an execution by four jointly was held
valid (e). The clerk to trustees of a turnpike road was au-
thorized by statute to sign contracts for the letting of the
tolls, and two persons were appointed to fill the office of
clerk ; it was held that both must join in executing such
a contract (f). The defendant, a member of a provisional
committee of a railway, joined in a resolution appointing

(a) Brady v. Todd, 9 C. B. N. 8. (c) Per Holt, C.J., Bolton: v. Hil-
592; 301. J. C. P. 223. lersden, supra; and see ante, p. 268.
(b) Helyear v. Hawke, 5 Esp. 72; (d) Co. Lit. 181 6; Com. Dig. At-

Alexander v. Gibson, 2 Camp. 555;  torney, C. 11; see Guthrie y. Arm-
Fenn v. Harrison, 3 T. R. 757,760; — strong, 5 B. & Ald. 628.

and see Brady y. Todd, supra; ante, (e) Guthrie v. Armstrong, supra.
p. 274. (f) Bell v, Nixon, 9 Bing. 393.
SECT. [11. PRINCIPAL AND AGENT. 285

eight persons as a managing committee, with authority to
carry out the scheme, but not authorizing any number of
them less than the whole to act ; it was held that the defend-
ant was not liable on a contract made by six only of the
managing committee (a).

A power of attorney to contract by deed is properly exe-
cuted by making and executing the deed in the name of the
principal (b). An execution in the form “ For A. B. (the
principal) C.D. (the attorney) ” was held sufficient to de-
note an execution for the principal (¢). An attorney under
a power to execute a lease demised in his own name to the
defendant, reserving the rent to the principal, to whom also
the defendant covenanted to pay the rent; it was held that
the deed was void as a lease, and that the attorney could not
sue upon the covenant because not made with him (d).. A
deed described the defendant as a party for and on behalf of
another, and purported that the defendant, for and on be-
half of that other, covenanted with the plaintiff, and the de-
fendant executed the deed with his own seal and in his own
name; he was himself held liable upon the covenants (e).

The authority to make a simple contract may be executed

8
in any form sufficient for the simple contract in question (f). frecta;

Contracts
under seal.

ple con-

It is a general rule that an authority given to an agent Delegation

cannot be delegated to another ;—expressed in the maxim
“delegata potestas non potest delegari.” This maxim ap-
plies ‘where a man employs an agent, relying on his pecu-
har aptitude for the work entrusted to him.—But where the
act to be done is of such a nature that it is perfectly indif-
ferent whether it is done by A. or by B., and the person
originally entrusted remains liable to the principal by whom-
soever the thing may be done, the maxim has no applica-
tion” (q).

eo

“A principal employs a broker from the opinion he enter-

(a) Brown y. Andrew, 18 L.J.Q. 2. Raym. 1418; and see Berheley vy,

B. 153. Hardy, 5 B. & C. 355,

(b) Coombe’s case, 9 Co. 76 b; (¢) Appleton v. Binks, 5 Wast, 148,
White v. Cuyler, 6 T. R.176 ; and see (f) As to the parties, see p. 289.
Berieley v. Hardy, 5 B. & C. 355. (g) Per Williams, J., Hemming v.

(e) Wilks v. Back, 2 East, 142. Hale, 7 C. B. N. 8. 487, 498; see

(d) Frontin v. Sinall, 1 Str. 705; Cobb v. Becke, 6 Q. B. 930, 936.

of au-
thority.
Revocation
of autho-
rity.

286 CHAP. Il. PARTIES TO CONTRACTS.

tains of his personal skill and integrity ; and a broker has
no right without notice to turn his principal over to another
of whom he knows nothing” (a). The plaintiff consigned
goods to a factor for sale, who not being able to advance
the freight and duties, employed the defendant to do so and
to sell the goods; it was held that the defendant acquired
no authority to deal with the goods, and that the plaintiff
was entitled to recover from him the full value of the goods
without any deduction for his advances (b). If goods are
consigned to co-factors to sell, one of them may deliver the
whole management of the goods and of the sale to the
other; but both remain liable to the principal (¢). The
question whether an agent instructed to effect a policy of in-
surance can delegate his authority to another agent was dis-
cussed in a recent case but was not decided (d).

A wife, entrusted with the general management of her
husband’s business and the drawing, accepting, and indors-
ing bills in his name, employed a third person in her pre-
sence and by her direction to indorse a bill in the husband’s
name ; it was held that this was not a delegation of the
authority, but that it was a question of fact for the jury
whether the indorsement so made was within the extent of
the authority (e).

An authority is, in general, revocable by the donor of
it (f). But “where an agreement is entered into on a suffi-
cient consideration, whereby an authority is given for the
purpose of securing some benefit to the donee of the autho-
rity, such authority is irrevocable. This is what is usually
meant by an authority coupled with an interest, and which
is commonly said to be irrevocable” (g). In the case of
Smart v. Sandars, goods were consigned to a factor for sale
with a general authority for that purpose, and the factor

(a) Per Lord Ellenborough, C.J., (d) Cahill v. Dawson, 3 C. BLN.
Cockran v. Irlam, 2M. & 8.301,303; 8.106; 26L. J. C. P. 253.
Henderson v. Barnewell, 1 Y. & J. (e) Lord v. Hall, 8 C. B. 627.

387. (f) Tynior’s case, 8 Co. Rep. 82

(6) Solly v. Rathbone, 2 M.&8. a; Smart v. Sandars, 5 C. B. 895,
298; and see Cockran v. Irlum, ib. 916.
301; Graham vy. Dyster, 6 M. & 8.1. (g) Smart v. Sandars, 5 C. B. 895,
(ec) Godfrey v. Saunders, 3 Wil- 917.
son, 73.
SECT. If]. PRINCIPAL AND AGENT. 287

subsequently made advances to his principal on the credit
of the goods, but without any stipulation that his authority
to sell should be irrevocable ; it was held that his authority
did not become irrevocable by reason merely of the unpaid
advances, and that he had no right to sell the goods con-
trary to the orders of his principal on the latter neglecting
on request to repay the advances (a).

So, with powers of attorney; “in general, they are re-
vocable from their nature: but there are these exceptions
—where a power of attorney is part of a security for money,
there it is not revocable: where a power of attorney was
made to levy a fine, as part of a security, it was held not to
be revocable: the principle is applicable to every case where
a power of attorney is necessary to effectuate any security ;
such is not revocable” (b). A debtor, in order to discharge
the debt, executed a power of attorney to his creditor au-
thorizing him to sell certain lands and receive the purchase-
money ; it was held that the authority, being coupled with
an interest, could not be revoked (c).

But where a principal has been in the habit of dealing
with others in certain matters through a particular agent,
he cannot effectually revoke the authority by notice to the
agent only, without a sufficient notification of the revocation
to the parties with whom the agent has been authorized to
deal on his behalf; and he will be bound by the contracts
of his agent with those parties until they have notice of the
revocation (d). Upon this principle, a partner retiring
from a firm continues lable on the contracts made with
the firm, until he has given sufficient notification to the
world of his retirement (¢}; and a master who has accre-
dited a servant to a tradesman to order goods in his
name, and has recalled the authority from the servant with-
out giving notice to the tradesman, is estopped from deny-

(a) Smart v. Sandars, 5 C.B. 895; Odes v. Woodward, L. Raym. 849.
and see Raleigh v. Atkinson,6M.& . (c) Gaussenv. Morton, 10 B. &O.

W. 670. 731.

(6) Per Lord Kenyon, Walsh v. (d) Trueman v. Loder, 11 A. & E.
Whitcomb, 2 Esp.N.P.565; Gaussen 589.
vy. Morton, 10 B. & C. 731; Smart v. (e) See ante, p. 279.

Sandars, 5 C. B. 895, 917 n. (a);
Revocation
by death of
principal.

288 CHAP. II. PARTIES TO CONTRACTS.

ing the authority of the servant to bind him with that trades-
man (a).

The authority of an agent to contract is revoked by the
death of the principal. A power of attorney is instantly re-
voked by the death of the grantor, and a contract after-
wards made under the authority given by it, though with-
out notice of the death, is void (5); and a power coupled
with an interest, which is irrevocable by the person grant-
ing it, is necessarily revoked by his death; for no valid act
can be done in the name of a dead man (c).

The ordinary powers of attorney to transfer stock in the
books of the Bank of England, and to receive dividends, con-
tain a clause to the effect that, in case of the death of the
donor, the power, as to all matters done after his decease by
virtue thereof, should, so far as the Governor and Company of
the Bank of England are concerned, be as binding on his exe-
cutors and administrators as the same would have been upon
him, if living, unless notice in writing of his death should
have been previously given to the said Governor and Com-
pany. ‘This clause operates as a contract with the Bank of
England that the authority shall be irrevocable until notice
of the death; and seems to preclude all question as to the
validity of a transfer made in pursuance of the power after
the death, but before notice of it (d).

The authority which a married woman may have, in the
absence of her husband, to pledge his credit for necessaries
supplied to her is revoked by his death ; and the executors
of the husband are not liable for necessaries supplied to the
wife upon his credit after his death, although before notice
of it had been received (e). ‘Nor is the wife liable, in such
case, for the goods supplied to her upon the credit of her
husband, because she contracted merely as agent, and did
not pledge her own credit (f).

An agent employed to sell certain goods for his principal,

(a) Per Erle, CJ., Lv p. Swan, (c) Watson vy. King, 4 Camp. 272.
70. B. N. 8. 400, 482; 30 L. J, (d) Seo Kiddill vy. Farnell, 26 L.
C.L.113, 118 ; Hazard v. Treadwell, J.C. 818.

1 Str. 506. (e) Blades vy. Free, 9 B. & C. 167.

(b) Watson v. King, 4+ Camp. 272; (f) Smout v. Ilberry, 10 M. &
and see the cases cited in Smart v. W.1.

Sandars, 5 C. B. 895, 917 n. (a).
SECT. III. PRINCIPAL AND AGENT. 289

sold them after the death of the principal ; it was held that
he had no claim against the administrator for the remune-
ration stipulated for with the deceased, because his autho-
rity to sell was revoked by the death (a). A contract made
by a firm consisting of two partners for the employment of
an agent in their business for a period of four years, was
construed as subject to the condition that all the parties so
long lived, and was held to have been extinguished by the
death of one of the partners (6).

Where a contract is made by an agent acting for a prin- Construc-
cipal, the question frequently arises whether, in relation to [rot com

the other contracting party, the agent or the principal is whether |
._ the princi-

the actual party to the contract; for where the contract is pal or the
so made that the agent is the party to it, the agent, though *2ent isthe
an agent only, is primarily entitled to sue and liable to be party.
sued upon it; but where it is so made that the principal is
the party to it. though it is made through an agent, the
principal, and not the agent, is entitled to sue and liable to
be sued upon it (c).

Upon principles of law hereafter to be explained, where
the agent is the actual party to the contract and primarily
hable or entitled under it, the principal may in some cases,
and under certain conditions, stand in the place of the agent
to be charged with the liability, or to claim the benefit of
the contract (cd).

The question whether the agent or the principal is the
actual party to the contract, is, in the case of written con-
tracts, a question of construction; in the case of unwritten
contracts, a matter of inference from the circumstances of

the contract (e).

In the case of written contracts, the parties to the con-
tract are determined by the writing, which cannot be con-
tradicted or varied by extrinsic evidence. The general rule is
that a person contracting in his own name must be taken

(a) Campanari v. Woodburn, 15 112; Koster v. Eason, 2M. & 8.112;

C. B. 400; 24 L. J. C. P. 13. Short v. Spackman, 2 B. & Ad. 962.
(8) Tasker v. Shepherd, 6H. &N. (d) See post, p. 298, 300.
575; 30 L. J. Ex. 207. (e) See IFilliamson v. Barton, 7 H,

(c) See Grove v. Dubois, 1 T. RK. & N.899; 311. J. Ex. 170.
U
Contracts
under seal.

Simple con-
tracts in
writing.

290 CHAP. II. PARTIES TO CONTRACTS.

to be a party to the contract unless it appears expressly
upon the face of the contract that he does not contract per-
sonally ; and words of description merely denoting his cha-
racter of agent and not exclusive of personal liability are in-
sufficient for this purpose (a).

A deed, executed by the defendant, purported to be made
between the plaintiff of the one part and the defendant
by his own name and description, (for and on the part and
behalf of A.,) of the other part, and expressed that the de-
fendant, for himself, his heirs, executors, etc., on the part
and behalf of the said A., covenanted with the plaintiff; it
was held that the defendant was personally liable on the
covenant (b). And under an indenture expressed to be made
by A., for and on behalf of B., of the one part, and exe-
cuted by A., it was held that B. was not a party and could
not maintain an action, although the covenants were ex-
pressed to be made with B. (c). In the execution of a deed
by an agent for a principal (for which purpose a power of
attorney or authority under seal is necessary) the proper
way is to use the name of the principal (d). An execu-
tion in the form “ For A. B. (the principal) C. D. (the at-
torney)”? was held sufficient to constitute an execution for
the principal (e).

A written memorandum of agreement was expressed to
be made between the defendant, for and on the part of an-
other named person, of the first part, and the plaintiff of the
second part, whereby the defendant agreed to let certain
premises to the plaintiff for a term, at a rent to be paid to
the defendant for the use of the said other person, and the
agreement was signed by the defendant in his own name
without any reference to his principal; the defendant was
held personally liable upon the agreement (f). An agree-
ment was expressed to be made between the defendant, and
the plaintiff, “ on behalf of the Geelong and Melbourne Rail-

(a) Cooke vy. Wilson, 1C. B. N.S.  Coombe’s case, 9Co.76 db; ante, p.285.
158; 26 LL. Jd. 0, P. Iss Parker ¥. (e) Wilks v. Back, 2 Fast, 142.
Winlow, 7 i. & B. 912, 949. (f) Tanner v. Christian, 4 EB. & B.

(0) Appleton y. Binks, 5 East, 148, 591; 24 L. J. Q. B. 91; and see

(c) Berkeleyy. Hardy, 5 B.& C.355,. Norton v. Herron, 1 C. & P. 648;

(@) White vy. Cuyler,6T. R176; TR. & M. 229.
SECT. III. PRINCIPAL AND AGENT. 291

way Company,” for the carriage of goods of the company
in a ship of the defendant, and the agreement was signed
by the plaintiff in his own name without reference to his
principals, it was held that he was entitled to sue, and liable
to be sued, personally on the contract (a). A charterparty
was made by the defendant in which he was described as
“agent for”? a named principal, but which he signed with
his own name merely, he was held personally bound (0).
An agreement for a charterparty was expressed to be made
between the plaintiff and the defendants, without any refer-
ence to the latter acting as agents only, and was signed
by the defendants in their own names, with the addition
“by authority of and as agents for” a named principal ; the
defendants were held to have made themselves personally
liable (c).

On the other hand, a written contract expressed to be
made between V. and the plaintiff, whereby the plaintiff
engaged to serve V. for a certain period, and signed by the
defendant with his own name “for V.” was held not to
render the defendant liable as a contracting party (d). So,
a charterparty expressed to be made by G. “as agent to S.,”’
and signed “for 8. of etc. G. as agent,’ was held not to
render G. liable (e). Lands were let by auction under condi-
tions which stated the letting to be by the plaintiffs “ auc-
tioneers,”’ and one of the conditions was that the rent should
be paid into the hands of the plaintiffs, and at the foot of
the conditions was written “approved of the above condi-
tions by me,”’ after which was signed the name of the owner
of the lands; it was held that the conditions imported a let-
ting by the auctioneers acting as his agents only, and that
they could not maintain an action upon the conditions in
their own names (f). A written agreement for the sale of
certain lands of a borough purported to be made between

(a) Cooke v. Wilson, 1 C. B. N.S. (d) Mahony v. Kekulé, 14 C. B.
153; 26 L. J. C.P. 15. 390; 23 L. J. C. P. 54.
(b) Parker v. Winlow, 7 E. & B. (e) Deslandes v. Gregory,2 BU. &E.

942; 27 L.J.Q.B.49;andsee Wake 602, 610; 29 L. J. Q. B. 93; 30 ib.
v. Harrop,6 H.&N.768;1H.&C. 36.

202; 30 L. J. Ex. 278; 31 i. 451; (f) Hvans v. Evans, 3 A. & E.132;
ante, p. 181. and see Fisher v. Marsh, 34 L. J. Q.

(c) Lennard v. Robinson, 5 H.&B. B.177; Spittle v. Lavender, 2B. &B,
125; 24L. J. Q. B. 275. 452.

v2
Contracts
with
brokers.

Contracts
with
partners.

Contracts
with
solicitors.

292 CHAP. II. PARTIES TO CONTRACTS.

A. B., and C. D., “ mayor of the said corporation, on behalf
of himself and the rest of the burgesses and commonalty of
the borough,” and was signed “C. D. mayor ;” it was held
that CO. D. acted only as agent, and was not entitled to sue
upon the contract (a).

Where brokers, employed to buy or sell goods, enter into
written contracts in their own names, they are, in general,
to be considered as contracting parties, and primarily en-
titled to sue or be sued, though they are known to be
brokers acting for a principal. Upon a purchase made by
the plaintiffs, as brokers, the bought and sold notes were
made out in the form ‘ Bought for Messrs. 8.” (the plaintiffs)
“of Mr. W. 8.” (the defendant) ; it was held that the plain-
tiffs might sue for non-delivery of the goods, although their
principal repudiated the contract made by them ()). Upon
a broker’s sale-note delivered to the purchaser in the terms,
“JT have this day bought, in my own name for your account
of A. Thompson, etc.,”’ it was held that the broker was not
the contracting party and could not maintain an action for
the price of the goods (c).

Insurance brokers effecting policies of insurance in their
own names are, in general, to be considered as contracting
parties (d). Upon a policy of insurance effected by an in-
surance broker, “‘as agents as well in own name as for and
in the name of any person to whom the same doth apper-
tain,” it was held that the broker was entitled to the benefit
of the policy against the underwriter (e).

If some members of a partnership enter into a written
contract, on account of the partnership business, in their
own name, they are entitled to sue and liable to be sued
upon it, as being the actual parties to the contract (f).

An undertaking given by solicitors for their client in the
following terms, “‘we as solicitors to ete., undertake ete.,”’

(a) Bowen v. Morris, 2 Taunt. 374. Baker v. Langhorn, 4 Camp. 896; 2
(4) Short v. Spackman, 2 B.& Ad. Marshall, 215; 6 Taunt. 519.
962. (e) Leev. Bullen, 8 E. & B. 692 (a);
(c) Fawkes v. Lamb, 31 L.J.Q.B. 27 L. J. Q. B. 161; but see Baker v.
98. Langhorn, 2 Marshall, 215; 6 aunt.
(d) See Grove v. Dubois, 1 T. R. 519.
112; Koster v. Eason, 2 M. & 8.112; (f) Clay v. Southern, 7 Ex. 717;
Parker v. Beasley, 2M. & 8.4238; 21 L. J. Ex. 202.
SECT. III. PRINCIPAL AND AGENT. 298

was held to bind the solicitors personally (w). So, an under-
taking contained in a letter written by a solicitor in the fol-
lowing terms, “I undertake to pay on behalf of” ete., was
held to render the solicitor personally liable (¥). But in
Downman v. Williams (c), a letter in the terms, “I undertake
(on behalf of E. and Co.) to pay etc.” was held to import an
undertaking as agent only, which did not render the writer
personally liable, and the Court said that the above terms
seemed in their natural meaning to point rather to a promise
made by one person as agent for another than as intended
to bind the party speaking in the character of a principal;
for, upon the latter supposition, there would appear to be no
reason whatever for mentioning the name of the principal.
So, a letter by an attorney consenting to certain terms “ on
behalf of” his chents was held to constitute a contract as
agent only and not to create a personal liability (d).

It is a general rule, that a person who puts his name to a Bills of ex-
bill of exchange or a promissory note thereby makes him- ee
self personally liable, unless he states upon the face of the notes.
bill that he subscribes it for another or by procuration of
another, or uses some words exclusive of his own personal
lability (e). Trustees of a building society who made a
promissory note in their own names, though they described
themselves in the note as trustees of the society, were held
personally liable (f). So, where a joint and several pro-
missory note was made by two persons, described as
“directors,” and by the defendant as “ secretary,’ of a
building society, the defendant was held personally liable (9).
Where a bill of exchange was drawn upon the purser of a
mining company in his own name and he accepted it in the
form “ Accepted for the company, A. B. purser,” it was
held that he was personally lable, though he was not a
member of the company; because he had not expressed

(a) Burrell vy. Jones, 3 B. & Ald. 47. (e) Leadbitter v. Farrow, 5M. & 8.
(s) Hally. Ashurst,1C.&M.714; 345; Le Fevre v. Lloyd, 5 Taunt. 749;
and see Harper v. Williams,4Q.B. Sowerby v. Butcher, 2 C. & M. 368.

219. (f) Price v. Taylor, 5 H, & N. 540;
(c) 7 Q. B. 103, 109. 29 L. J. Ex. 331. :
(d) Lewis v. Nicholson, 18 Q. B. (g) Bottomley vy, Fisher, 1 H. & C.

503; 21 L. J. Q. B. 311. 211; 81 L. J. Ex. 417.
294 CHAP, Il, PARTIES TO CONTRACTS.

in his acceptance a sufficient disclaimer of personal
liability (a).

But bills and notes drawn, accepted, or indorsed by a
person who on the face of the instrument professes to act by
procuration, as by using the term “ per proc.,’”’ do not bind
the agent; they import that he acts under authority, and
are binding on the principal, if the authority can be
proved (0). Where a bill of exchange was addressed to a
mining partnership by its name, and was accepted by the
manager in his own name with the addition “ per proc. the
mining company,’ and the manager was himself a

member of the partnership, he was held to have bound him-
self as such, though he had no authority to accept for the
other partners (c). A promissory note signed by two
directors of an incorporated joint stock company and made
in the form “ we two directors of the society, by and on be-
half of the said society, promise to pay,” etc., and sealed
with the seal of the company, was construed to import to
bind the company only and not the parties signing it, who
therefore were not liable upon it personally (d).
Extrinsic Where an agent contracts in writing, so as to make him-
ee self personally liable, he cannot relieve himself from liability
admissible by evidence that he contracted as agent for a principal, or
ischarge :
aparty to even that the other party knew he was acting as agent at
contract, the time of contracting, for such evidence would tend to
contradict the written agreement (e). So also, a party to a
written contract cannot relieve himself from liability to the
other party merely by evidence that the other party appear-
ing on the contract was an agent for another (f/f).
A broker making a written contract for the sale of shares
in his own name, is personally lable though he may be known
to be a broker; and evidence of a custom of a particular place

to send in brokers’ notes without disclosing the principals,

 

(a) Mare v. Charles, 5 EF. & B. 165; 25 L. J. Ex. 348; and sce

978; 25 L.J.Q. B. 119. Lindus vy. Melrose, 3H. & N.177;
(0) Attwood vy. Munnings,7B.&C. 27 L. J. Ex. 326.

278; Alexander v. Mackenzie, 6 C. B. (e) Magee v. Atkinson, 2 M. & W.

766; Slagg v. Hlliolt, 12 C. BL. N.S. 440; Jones v. Littledale, 6 A. & EB.

373; 31 L.J3.C. P. 260. 486 ; Higgins v. Senior, 8 M. & W.

(c) Owen. Vau Uster, 10C.B. 318; 884; and see Wake y. Harrop, cited
see Nicholls v. Diamond, 9 Ex. 154. ante, p. 181.
(d) lggs v. Nicholson, 1 H. & N. (f) Lb.
SECT. III. PRINCIPAL AND AGENT. 295

was held inadmissible to relieve the broker from liability ().
So, a broker selling goods and making out the written con-
tract in his own name as seller is personally bound, and can-
not discharge himself by showing that the buyer knew he
was selling the goods as agent for another (0). A broker
upon a sale of goods gave to the buyer an invoice in which
he described himself as the seller ; it was held that he was
conclusively bound by that representation, and that evidence
was not admissible to show that he was known at the time
of the sale to be selling as agent only (c). Where a broker
signed a sale-note purporting that he had bought for a prin-
cipal, but without naming the principal, it was held that
evidence was admissible of a usage of the trade, by which,
if a broker did not disclose the name of his principal within
a reasonable time, he was himself regarded as the principal,
and that under such usage the broker became liable as pur-
chaser (d).

Where the contract is not reduced into writing, the ques- Contracts
tion whether the agent or the principal is the actual party to a ld
it depends upon the facts and circumstances by which the
contract is established. The question can arise only where
the other contracting party is acquainted with the name of
the principal and has the opportunity of contracting with
him directly instead of with the agent; for if the other party
has no knowledge of the principal, it must be presumed that
he primarily credits the agent, and not the principal (e).

Where a British merchant is buying for a foreigner, ac- Contracts
cording to the general understanding of merchants, the credit oe
is considered to be given to the British buyer, and not to principal.
the foreigner (f). This is not a rule of law; it is merely a
presumption of fact arising from the improbability that the

(a) Magee vy. Atkinson, 2M.& W. 187; 27 2b. 390.
440. (e) See Addison v. Gandasequi, 4
(b) Higgins v. Senior, 8 M. & W. Taunt.574; 2 Smith’s L. C. 5th ed.
834; Reidv. Dreaper,6H.&N.818; 302.
30 L. J. Ex. 268. (f) Thompson vy. Davenport, 9 B.
(c) Jones v. Littledale,6 A. & E, & C.78, 87, 88; and see per Parke, B.,
486. Heald v. Kenworthy, 10 Ex. 739, 743;
(d) Humfrey v. Dale, 7 BE. & B. per Maule, J., Smy?h v. daderson, 7
266; E.B.& HW. 1004; 26L.3.Q.B. C. B. 21, 33.
Sales by
auction,

Contracts
with car-
riers.

Liability of

principal
upon con-

296 CUAP. II. PARTIES TO CONTRACTS.

credit should be given to the foreigner, and if the contract
is made expressly with the foreigner and not with the agent,
the latter is not liable (a).

At a sale by auction a person bidding and giving his own
name as purchaser is primd facie the contracting party ; but
if he was bidding as agent for another and known to be so
to the auctioneer or to the seller, it may be a question of
fact whether the sale was made with the agent or with the
principal (b). Ifthe auctioneer sells without at the time of
the sale disclosing the name of his principal, he contracts
personally, and may sue or be sued in his own name (c).

In contracts made with carriers for the carriage of goods,
it is often a question whether the consignor or the consignee
is the party to the contract and entitled to sue the carrier or
liable to be sued by him. In general, the consignor in em-
ploying the carrier is merely the agent of the consignee,
who is the actual party to the contract, for whose benefit it
is made, and for whom the goods are carried (d); but where
the contract is expressly made with the consignor only, or

-on his account and for his benefit only, he is the party to

the contract, and the consignee cannot sue or be sued (e).

Where the agent is the actual party to the contract, and
primarily liable to be sued, the principal may also be charged

tractmade upon it, under certain circumstances, and subject to certain

by agent.

exceptions and conditions.

“Tt is a general rule, that if a person sells goods, (sup-
posing at the time of the contract he is dealing with a prin-
cipal), but afterwards discovers that the person with whom
he has been dealing is not the principal in the transaction,
but agent for a third person, though he may in the mean-
time have debited the agent with it, he may afterwards re-

(a) Mahony v. Kekulé,14C.B.390; 687; Fisher v. Marsh, 34 L. J. Q. B.
Green v. Kopke, 18 C. B. 549; 25 177; see Spittle v. Lavender, 2B. &B.
L. J. C. P. 297; and see Wilson v. 452; 5 Moore, 270.

Zulueta, 14 Q. B.405;19 L.J.Q. B. (d) Dawes v. Peck, 8 T. R. 330;

49; Risbourg v. Bruckner, 38 C.B.N.8. Dutton v. Solomonson, 3 B. & P. 582 ;

812; 27 L. J.C. P. 90. Wait vy. Baker, 2 Ex. 1, 7; Brown
(4) Williamson v. Barton, 7. & — vy. Hodgson, 2 Camp. 36.

N. 899; 31 L. J. Ex. 170. (e) Sargent y. Morris, 3 B. & Ald.

(¢) Hanson vy. Roherdeau, 1 Peake, 277; Joseph v. Knox, 3 Camp. 320 ;
163; Franklyn vy. Lainond, 4 C. B. Swain y. Shepherd, 1 M. & Rob. 223.
SECT. III. PRINCIPAL AND AGENT. 297

cover the amount from the real principal ; subject, however,
to this qualification, that the state of the account between
the principal and agent is not altered to the prejudice of the
principal” («). So also, although the seller at the time of the
dealing for the goods was informed that the buyer was an
agent dealing for another, if he was not informed who the
principal was, so as to give him the means of electing be-
tween them which he would debit with the price, he may
afterwards, upon discovery of the real principal, charge him
with the price (>). ‘ On the other hand, if at the time of the
sale the seller knows, not only that the person who is no-
minally dealing with him is not principal but agent, and also
knows who the principal really is, and, notwithstanding all
that knowledge, chooses to make the agent his debtor, deal-
ing with him and him alone, then, according to the cases of
Addison v. Gandusequi (ec) and Paterson v. Gandasequi (dl),
the seller cannot afterwards, on the failure of the agent,
turn round and charge the principal, having once made his
election at the time when he had the power of choosing be-
tween the one and the other” (e).

Upon this principle it is held that, if a contract be made
by some members of a partnership in a partnership matter,
but in their own names, all the members of the partnership
may be charged upon it as principals, although the other party
to the contract did not know who they were (f). So, where
the part owner of a ship instructed a broker to effect an insur-
ance upon the whole of it, which he did and debited that
part owner with the amount of the premiums, and the other
part owners afterwards had notice of the insurance and as-
sented to it, it was held that the broker might charge all the
part owners jointly with the premium, as having jointly au-
thorized the insurance (9).

Even where an agreement is made in writing between
two parties, extrinsic evidence is admissible to show that one

(a) Per Lord Tenterden, C.J., Thomson v. Daverport, 9 B. & C. 78,
Thomson v. Davenport, 9 B. & C.78, 863 and see per Littledale, J., 24. 90 ;

86. 2 Smith’s L. C. 5th ed. 309.
(6) Thomson v. Davenport, supra. (f) Beckhamvy. Drake, 9 M.& W.
ce) 4 Taunt. 574. 79; ante, p. 277.
(d) 15 East, 62. (g) Robinson vy. Gleadow, 2 Bing,

(e) Per Lord Yenterden, CJ., N.C. 156.

Contracts
in writing.
Bills of ex-
change and
promissory
notes.

Contracts
under seal.

298 CHAP. II, PARTIES TO CONTRACTS.

of the contracting parties, was agent for a principal, and
acted as such in making the contract, for the purpose of
charging the unnamed principal with the lability. “This
evidence does not contradict the written instrument, for it
does not deny that it is binding on those whom, on the face
of it, it purports to bind; but shows that it also binds an-
other, by reason that the act of the agent in signing the
agreement in pursuance of his authority is, in law, the act
of the principal” (a). And where the contract is such as is
required to be made in writing and signed by the party or
his agent, within the Statute of Frauds, and the contract is
made and signed by the agent in his own name, the un-
named principal may be charged upon it (8).

«The case of bills of exchange is an exception which
stands upon the law merchant; and promissory notes an-
other, for these are placed on the same footing by the statute
of Anne. In neither of these can any but the parties named
in the instrument, by their name or firm, be made liable to
an action upon it.” Consequently, if a person uses his own
name as party upon such instruments, though he acts as
agent for a principal, the liability is exclusively his, and the
principal cannot be charged (c). If he uses his own name ex-
pressly as agent only, signing per procurationem, or on behalf
of others, he is not personally liable, unless he is himself a
principal whom he professes to bind, because he does not
name himself as party (d).

Contracts under seal are another exception; for it is a
rule of law with contracts under seal, that no person can
sue or be sued upon such instruments, unless they are ex-
pressly named, or sufficiently designated therein as par-
ties (e). The agent can bind the principal only by an exe-
cution in the name of the principal, and by virtue of an au-
thority given by the principal under seal (/).

(a) Higgins v. Senior, 8M. & W.
834, 844; Trueman v. Loder, 11 A.
& E. 589; Beckham v. Drake, 9 M.&
W.79; 2H. L. CO. 579.

(b) Higgins v. Senior, 8M. & W.
834, B44; ante, p. 152.

(c) Per Parke, B., Beekham v.
Drake, 9 M. & W.79, 96 ; Siffkin v.

Walker, 2 Camp. 308; Emly v. Lye,
15 East, 7; Bottomley v. Fisher, 1H.
& C. 211; 31 LJ. Ex. 417.

(d) Bee ante, p. 29-4.

(e) Appleton v. Binks, 5 East, 118 ;
Berkeley v. Hardy, 5 B. & C. 355;
ante, p. 228,

(f) -lute, p. 265, 285.
SECT. 1II. PRINCIPAL AND AGENT. 299

The above right to charge the unnamed principal, upon a
contract which has been made with the agent alone, is sub-
ject to the condition that the principal is not prejudiced
thereby ; and it is barred by circumstances which render it
inequitable to charge him (a).

Thus, where goods are sold to an agent for the real buyer,
and the seller takes the bills of the agent in payment, he
thereby makes it the duty of the principal to remit funds to
the agent to meet the bills and is taken to authorize him to
do so, and the seller cannot charge the principal after such
remittance is made, though the bills may be dishonoured (6).
The plaintiff advertised goods for sale by auction upon cer-
tain conditions, one of which was that payment should be
made by bills at three months, and the defendant employed a
broker to bid for him, who became a purchaser and was al-
lowed by the plaintiff to take the goods without giving bills ;
the defendant paid the broker on the supposition that he
had given bills according to the conditions; it was held
that the plaintiff, having led the defendant to suppose that
he had taken bills from the broker, was precluded from
charging him as principal after payment to the broker (c).
Where the seller, after discovery of the real principal, and
after the day of payment had passed, delayed for a long time to
make any claim against the principal, and thereby induced him
to suppose that the agent only was treated as liable, and to
give the agent bills for the amount of the debt, which were
negotiated and subsequently dealt with on the supposition
that the agent only was lable, it was held that the seller
was thereby precluded from charging the principal (d).

But a mere payment by the principal to the agent does not
discharge him as against the creditor; unless such payment
was authorized or induced by the representations or conduct
of the creditor ; it being the duty of the debtor to inquire
after and pay the right person (¢). The circumstance that

(a) Thomson vy. Davenport, 9 B. & an ey y. Fauntleroy, 10 B,

C. 78, 86, 88; Smyth v. Anderson, 7 755.

C. B. 21, 36; Smethurst v. Mitchell, = Smethurst v. Mitchell, 1B. & E.
1H. & B, 622, 630; 28L. J. Q. B. 622; 28L. J. Q. B. 241.

241, 246. - (e) Kumer v. Suwercropp, 1 Camp.

(b) Smythy. Anderson,7 C. B. 21. 109, 112; Lcald v. Kenworthy, 10

Condition
that prin-
cipal is not
prejudiced
by

being
her ged.
Charging
principal
discharges
agent.

Right of
principal
upon con-
tract made
by agent.

300 CHAP. Il. PARTIES TO CONTRACTS.

the agent had money of the principal in his hands with
which he might have paid the debt, but did not, and which
was lost through his insolvency, does not preclude the cre-
ditor from resorting to the principal for payment, although
he may have previously applied to the agent for payment (a).
So, the principal is not discharged merely by reason of his
having a right of set-off against the agent (b). The principal,
having bought goods through an agent, left them in his hands
for resale, and they were sold by him, but the price was
lost through the insolvency of the buyer; it was held that
the original seller was not precluded by such circumstance

‘from afterwards charging the principal (c).

If the creditor, having contracted with an agent, after dis-
covery of the principal elects to charge him, he cannot after-
wards resort to the agent (d).

Where the agent is the actual party to the contract and
entitled to sue upon it, the principal may in some cases, and
under certain conditions, intervene and claim the benefit.

One of several joint owners of goods, acting for all, sold
them to a purchaser who did not know that other persons
had any interest in the transaction; it was held that ail
the owners might join in suing for the price; and the Court
said “the action may be maintained either im the name of
the person with whom the contract was actually made, or in
the name of the parties really interested” (e). A person
bought goods in his own name only, but himself and two
others were jointly interested in the purchase ; it was held
they might all join im suing the vendor for a breach of the
contract; and it was laid down by the Court that “if an
agent makes a contract in his own name, the principal may
sue and be sued upon it; for it is a general rule, that when-
ever an express contract is made, an action is maintainable

Ex. 739; 24 L. J. Ex. 76, 77; and (c) Campbell v. Hicks, 28 L. J. Ex.
see Campbell vy. Hicks; Mucfarlane 70.
v. Giaunocopulo, 3 H. & N. 860; 28 (d) See Thomson v. Davenport, 9

L. J. Ex. 72. B. & OC. 78; 2 Smith’s L. C. 5th ed.
(a) Mucfarlane v. Giaunocopulo, 309.
supra. .  (e) Skinner vy. Stocks, 4B. & Ald.

(b) Waring v. Favenck,1 Camp, 85. 487.
SECT. IlI. PRINCIPAL AND AGENT. 301

upon it, either in the name of the person with whom it was
actually made, or in the name of the person with whom, in
point of law, it was made” (a). So, upon a loan of partner-
ship money advanced by one partner as agent for the firm,
all the partners may, in general, sue for its recovery (0) ;
and where partnership money is deposited with a banker to
the account of one of the partners, the banker may be liable
to an action at the suit of all, if the partner in opening the
account was acting as agent for the partnership ; though the
mere fact of the money being partnership property would
not be sufficient to establish the agency (¢).

In the case of Sims v. Bond (d) it appeared that the ma-
naging owner of a ship having received money on account
of the freight paid it into an account kept in his own name
by the defendants as bankers, and the question was whe-
ther the plaintiffs, who were other part owners of the ship
could sue the bankers upon the transaction as for money
lent upon their account; the Court said: “It is a well esta-
blished rule of law, that where a contract, not ynder seal,
is made with an agent, in his own name, for an undisclosed
principal, either the agent or the principal may sue upon
it; the defendant in the latter case being entitled to be
placed in the same situation, at the time of the disclosure
of the real principal, as if the agent had been the con-
tracting party. This rule is most frequently acted upon in
sales by factors, agents, or partners, in which cases either
the nominal or real contractors may sue; but it may be
equally applied to other cases; and we do not say that
where a person lends money nominally on his own account,
but really on account of, and as the loan of another, the
real lender may not sue for the money. But where money
is lent by another in his own name, the plaintiff, who
alleges that he was in reality the lender, must prove that
fact distinctly and clearly. He must show that the loan,
though nominally that of another, was really intended to
be his own.””—This it was held that the plaintiffs in the case

(a) Cothay v. Fennell, 10 B. & C. (ce) Cooke v. Seeley, 2 Ex. 746;
671. Sims v. Brittain, 4 B. & Ad. 375;
(b) Alexander v. Barker, 2C.&J. Sims v. Bond, 5 B. & Ad. 389.
133. (d) 5 B. & Ad. 389.
Right of
principal
upon con-
tract made
by agent.

302 CHAP. Il. PARTIES TO CONTRACTS.

had failed to do; they only showed that the money was their
property.

One of a firm of partners, acting for the firm, advanced a
loan of money and took a guarantee for the payment con-
tained in a letter written by the defendant to him alone ; it
was held that all the partners might join in suing upon the
guarantee (a).

Where an agreement is made in writing between two
parties, extrinsic evidence is admissible to show that one of
the contracting parties was agent for a principal and acted
as such agent in making the contract, in order to give the
benefit of the contract to the unnamed principal; and this
evidence in no way contradicts the written agreement (b) ;_
such evidence is admissible where the contract is required
to be in writing by the Statute of Frauds (c). An excep-
tion occurs with bills of exchange and promissory notes
upon which by the law merchant no person can claim but
the parties named in the instrument; though the party en-
titled upon such instrument be an agent, the action must
be brought in his name and cannot be brought in the name
of the principal who is not a party (d). Another exception
occurs with contracts under seal (e).

The right of the principal to imtervene and claim the
benefit of the contract made by his agent may be excluded
by the terms or circumstances of the contract expressly re-
stricting the title under it to the actual party. As, where a

’ contract was made by one of several partners in his in-

dividual capacity, who at the time declared that he alone
was interested in it, it was held that the other partners
could not join in an action upon such a contract, although
they might be jointly interested (7). So, a person contract-
ing with another in consideration of the known personal
capabilities or character of the latter, cannot be made liable
to another person for whom the latter was in fact acting as

(a). Garrett vy. Handley, 4B. & C. East, 272.

664. (d) Sce ante, p. 298.
(b) Higgins vy. Senior, 8M. & W. (e) Sce ante, p. 223, 298.
834, 844; and sec anle, p. 297. (f) Lucas v. De la Cour, 1M. &

(c) Ib.; Bateman vy. Phillips, 15 8.219.
SECT, III. PRINCIPAL AND AGENT. 303

agent (a). Where a person executed a charterparty in which

he was described as “ owner of the ship,” it was held that
evidence was not admissible to show that he was not owner,

but contracted merely as agent of the owner, in order to
entitle the real owner to sue upon the charterparty (4) ;

and it was said that, if the contract had been made in the
agent’s name merely, without describing himself as owner,

it might have been shown that he was agent only, and that

the plaintiff was the principal (c).

The right of an unnamed principal to intervene and claim Condition

the benefit of the contract made by his agent is subject to hat the

ae : other party
the condition that the other party to the contract is not pre- is not pre-

judiced thereby. se araee
Thus, if an agent, entrusted with the possession of goods P# suns-
by the owner, sells them as his own, and the buyer does not
know that he is an agent in the transaction, though the real
principal may intervene and bring an action in his own name
against the buyer for the price of the goods, yet the buyer
may set off in such action any debts previously due to him
from the agent against the demand of the principal (d).
But if the buyer knows at the time of the sale that the ap-
parent seller is an agent, though he may not know who the
principal is, he is not entitled to set off the debts due to
him from the agent against the demand of the real prin-
cipal ce). And if the buyer deals through an agent, the
knowledge of such agent that the goods are not the goods
of the apparent seller is equivalent to knowledge of that
fact in the buyer, and disentitles him to the set-off (f).
As a factor is authorized to receive payment for goods
sold by him for a principal, payment to the factor is a good
discharge to the buyer against a subsequent demand by

(a) See Robson v. Drummond, 2 B. (e) Moore v. Clementson, 2 Camp.
& Ad. 303. 22; Baring v. Corrie, 2 B. & Ald.
(6) Humble vy. Hunter, 12 Q. B. 187; Fish vy. Kempton, 7 C. B. 687;
310. Ferrand v. Bischoffsheim, 4C.B.N.S8.
(c) Per Patteson, J., ib. p. 316. 710; 27 L. J. C. P. 802; Semenza

(d) Rabone vy. Williams, 7 T. R.  v. Brinsley, 18 C. B. N. 8. 467; 34
360 n. (a); Stracey v. Deey, ib. 361 L.J.C.P. 161.
n. (ce); George v. Claggett, ib. 359; (f) Dresser v. Norwood, 14 C. B.
Carr v. Hinchliff, 4 B. & OC. 547; N.S. 574; 17 ib. 466; 82L. J.C. P.
Purchell v. Salter, 1 Q. B. 197. 201; 34 7b. 48.
Claim ot
principal
discharges
liability to
agent.

304 CHAP. Il. PARTIES TO CONTRACTS.

the principal, although the buyer in dealing with the factor
had notice that he was acting for another, and could not
enforce against the principal a set-off of debts due from
the factor (a). In a recent case it appeared that the plain-
tiff carried on the business of a wine merchant by a clerk,
who conducted the business as apparent owner, and in the
course of the business sold and delivered goods to the de-
fendant in part satisfaction of a debt owing from himself to
the defendant; it was held that the liability of the defendant
to the plaintiff for the price of the goods so sold depended
not merely on the question whether the plaintiff was the real
owner of the business, but upon the question whether the
plaintiff had enabled the clerk to hold himself out as the
owner, and whether the defendant had dealt with him as
such, in which case the plaintiff, if he adopted the contract
of his agent, must take it subject to the agreement of set-off
and would not be entitled to recover the price (6).

The intervention of the principal to take the benefit of
the contract discharges the right of action at the suit of the
agent (c). So, if the broker who has sold goods for a prin-
cipal without disclosing his name, afterwards gives the name
of the principal and refers the buyer to him for completion,
the buyer becomes debtor to the principal and his liability
to the agent is discharged; and it makes no difference in
this respect that the agent is acting under a del credere com-
mission by which he is personally responsible to his princi-
pal for the price (d). So, payment by the debtor to the
principal is, in general, a discharge as against the agent ;
but in an action brought by the agent the defendant cannot
set-off at law a debt due from the principal, because not
a debt due from the plaintiff to the defendant within the
terms of the statute of set-off (e) ; such a set-off might, how-
ever, be made available upon equitable grounds (/).

A factor who has a lien on the price of the goods sold for

(a) Drinkwater v.Goodwin, 1 Cowp. ie Morris v. Cleasby, 4 M. & 8.
251; Warner v. M‘Kay,1 M.& W. 566
591; explamed in Fish v. Kempton, (c) Isberg v. Bowden, 8 Ex. 852.
7 C. B. 687. (f) See 17&18 Vict. c. 128, s. 83 ;
(b) Ramazotti v. Bowring, 7C.B. Cochrane v. Green, 9C. B.N.S. 448
N.S. 851; 29 T.. J. C. P. 30. 30 L. J.C. P. 97; post, me IV

(ec) Sadler v. Leigh, 4 Camp. 195. — Sect. XII, “ Set- off.”
SECT. III. PRINCIPAL AND AGENT. 305

his balance of account against his principal, acquires thereby
the right to enforce payment to himself in opposition to the
principal to the amount of the lien; and a payment by the
buyer to the factor to the amount of the lien is a discharge
of the debt of the buyer, notwithstanding notice of revoca-
tion of the authority of the factor to receive payment (a).
So, an auctioneer, having a lien on the price of the goods for
his charges, may maintain an action to recover it in his own
name; and a plea of payment to the principal, not showing
that the lien of the auctioneer has been satisfied, is no de-
fence to the action by him (b).

If a person describes himself as contracting as agent with- Contractby
out naming his principal, and is in fact himself the principal, Lon ht

he may, in general, be charged with the liability upon the : nee
contract, or claim the benefit of it as principal. A charter- pal.
‘party made between the plaintiff, the shipowner, and the
defendant, the charterer, in the usual form contained the
following clause, “This charterparty being concluded by
(the defendant) on behalf of another party resident
abroad, it is agreed that all liability of the former ceases as
soon as he has shipped the cargo,’”’ but no party was named
on whose behalf the charterparty was made; it was held
that the plaintiff might show that the defendant was in fact
the owner of the goods, and the principal for whom they
were carried, in order to charge him in an action upon the
charterparty for the freight (c). Upon a similar charter-
party which was expressed to be made between the defend-
ant of the one part and the plaintiff “as agent of the
freighter” of the other part, and in which it was stipulated
that “being concluded on behalf of another party it is
agreed that all responsibility on the part of (the plaintiff)
cease as soon as the cargo is shipped,” but no person was
named in the charterparty as freighter ; 1t was held that
the plaintiff, who, it appeared, was in fact himself the real

 

 

(a) Drinkwater v. Goodwin, Cowp. 954, commenting upon Coppin vy,
251; Hudson v. Granger,5B.& Ald. Walker, 7 Taunt. 237, and Coppin
27. v. Craig, 7 Taunt. 243; Holmes v,

(b) Williams v. Millington, 1 H. Tutton, 5 HE. & B. 65.

Bl. 81; Robinson v. Rutter, 4H. &B. (ce) Carr y. Jackson, 7 Ex. 382.

x
Contract by
party as
agent who
is himself
the princi-
pal.

306 CHAP. If. PARTIES TO CONTRACTS.

freighter, and not merely an agent in the matter, was en-
titled to sue as principal for a breach of the charterparty,
and that the limitation of his responsibility applied only to
his character as agent, and that as principal his responsi-
bility continued after the cargo was shipped (q).

Where a person makes a contract expressly as agent for
another person named as principal in the contract, but is
himself the real principal, it seems, as a general rule, that
he is not entitled to show himself to be the real principal
and sue in his own name (b). The plaintiff contracted with
the defendant in writing for the purchase of an estate, ex-
pressly as agent for another person named in the contract
as principal, but without any authority from the latter, and
being himself the real principal in the transaction, and paid
a deposit in part payment of the purchase money; it was
held that he could not maintain an action to recover the
deposit, without giving notice to the defendant of his real
position as principal (c). The plaintiff made a written con-
tract for the sale and delivery of goods to the defendant, in
which he described himself as agent for a named principal,
and the defendant after having full knowledge that the
plaintiff was not an agent as described, but was the real
principal in the transaction, accepted a part delivery of the
goods from the plaintiff and paid for them; it was held that
he could not afterwards refuse to receive and pay for the
remainder, and that the plaintiff might sue in his own name
for his default in doing so (d).

A trader, carrying on business in the name of A. & Co.,
executed for the benefit of his creditors an inspectorship
deed, which appointed the defendants imspectors, and al-
lowed the trader to carry on his business under their con-
trol; the defendants signed an order to the plaintiff for
goods for the use of the business in the form “for A. & Co.;”
the plaintiff sent the goods and sued the defendants for the
price; it was held that the defendants had not rendered

(a) Schmalz vy. Avery, 16Q.B.655; Booth, 1H. & C. 803; 32 L. J. Ex.
20 L. J. Q. B. 228; 35 L. J. Ex. 211. 105.

(b) See Bickerton v. Burrell, 5 M. & (c) Bickerton v. Burrell, 5 M.& 8.
8.383; Rayner v. Grote, 15M.& W. 383.
359; Boulton v. Jones, 2 H. & N. (d) Rayner vy. Grote, 15 M. & W.
564; 27 L. J. Ex.117; Lardmany. 359.
‘SECT. III. PRINCIPAL AND AGENT. 307

themselves liable by their signature, because they expressed
themselves as signing for a named principal, and, therefore,
they could be charged only as the real principals carrying on
the business of A. & Co.; but that by the terms of the deed
they were not coustituted principals in the business (a).

Where a person makes « contract expressly as agent for Contract
another person named as principal, without any authority to se Oe
do so, and not being himself the principal, he cannot be eeu
charged upon the contract either as party to it, or as princi- -
pal (b). The defendant made a charterparty in the name of
another and signed it as agent without authority to do so,
and the supposed principal repudiated the contract; it was
held that the agent could not be charged personally in an
action upon the contract, though he knew that he had no
authority to make it (c). So, where a husband went abroad,
leaving his wife with authority to order goods on his credit
for the use of herself and family, and died during his absence,
whereby the authority ceased, and the wife until she received
notice of his death continued to order goods as before; it
was held that she was not liable for the goods supplied after
her husband’s death, but before notice of it, because she
had not pledged her own credit (i) ; nor could the executor
of the husband be charged for the goods, because the au-
thority to order them was revoked by his death (e).

But where a person assumes to contract for another as
his agent, he impliedly warrants to the other contracting
party that he in fact possesses the authority which he as-
sumes to exercise; and if he does not possess the au-
thority assumed, he is liable to an action for the breach of
such warranty (f). Ifa person assumes to make a contract

(a) Redpath v. Wigg, L. R.1 Ex. v. Patchett, 7 E. & B. 568; 26 L.
35. J. Q. B. 195; Collen v. Wright, 7

(8) Lewis v. Nicholson, 18 Q. B. E. & B. 301; 27 L. J. Q. B. 215,
508; 21 L. J. Q. B. 811; and the in the Exchequer Chamber, Cock-

cases cited infra. burn, C.J., dissentiente, being of
(c) Jenkins v. Hutchinson, 13 Q.B. opinion that there is no such implied
744., warranty,and that the pretended agent

(d) Smout v. Ilbery,10M.&W.1. can be made liable only on the ground

(e) Blades v. Free, 9 B. & C. 167. of fraud. Pow v. Davis, 1E. B. & 8.

(f) Randell v. Trimen, 18 C. B. 220; 80 L. J. Q. B. 257; Hughes v.
786; 25 L. J. OC. P. 307; Simons Graeme, 33 L. J. Q. B. 335.
x2
308 CHAP. II. PARTIES TO CONTRACTS.

eis as agent for another, knowing that he has no such authority,

agent with- he also becomes liable to an action for the damages conse-
oe quent upon his false and fraudulent representation (a). The
defendant accepted a bill “ by procuration of”? the drawee,

* knowing that he had no authority to do so, and the drawee
repudiated the acceptance; it was held that the indorsee,

who had sued the drawee and been nonsuited, though he

could not charge the defendant as acceptor, might maintain

an action against him for falsely representing that he had

authority to accept by procuration (8).

(a) Polhill y. Walter, 3 B. & Ad. —(B) Polhill v. Walter, 3 B. & Ad.
114; Smout vy. Iibery,10M.& W.1,9. 114; ante, p. 187.
3809

CHAPTER III.
THE MATTER OF CONTRACTS:

Sxcrion I. Tur CoNSIDERATION,

     

The Matter of Contracts ...... 3809 Consideration of previous
The Consideration,—when ne- Legal Obligation............ 818
GEBSAPY,..aJcepnsiaaiavansaeniternasi 310 Impossible Consideration ... 321
Adequacy of Consideration ... 311 Illegal Consideration ........ 322
Good and Valuable Considera- Consideration partly void... 322
CONS sariisiasswndadiads ooseaurtaaton 312 Failure of Consideration... 323
Consideration must move from Matter of the Consideration 323
the Promisee .............:066 313 Forbearance of Rights .., 324
Executed and Executory Con- Equitable Rights ......... 326
siderations .............45 vee 813 Pretended Rights ......... 827
Past Consideration wae 814 Disputed Rights............ 329
Consideration of previous Doctrines of Equity respect-
Moral Obligation ............ 815 ing the Consideration...... 830

In contracts which are founded upon agreement the matter Tre matter
of the contract is comprised in the terms of the agreement. of con-
The matter of the agreement may be varied according to the

object to be effected; and contracts may be specifically dis-
tinguished, according to the matters and purposes to which

they are applied ;—as, contracts of sale, of land, or of goods ;
contracts between landlord and tenant; contracts of bail-

ment; of carriers; contracts of insurance; of guarantee ;

bills of exchange and promissory notes ; and others..

The general rules and principles of the law of contract
receive a particular application in each distinct species of
contract ; and the investigation in detail of that application
constitutes the law of that species of contract. Such de-
The consi-
deration.—
When ne-
cessary.

Simple con-
tracts.

Contracts
under seal.

310 CHAP. III. THE MATTER OF CONTRACTS.

tailed investigation is the proper subject of separate treatises,
and is not within the limits of an elementary treatise, which
is concerned only with the general rules and principles of
the law of contract, and their general application. The
matter of a contract, however, is subject to various modifi-
cations and considerations of a general character, attended
with general results and consequences, and independent of
the specific application or purpose of the contract; and
these general characteristics of the matter of a contract re-
quire here to be noticed.

The matter ofan agreement creating a contract, it has been
shown, consists in a promise, and, if the promise is given
for a consideration, in the consideration for the promise (a).
The consideration and the promise, as forming the matter of
the contract, may be conveniently treated of separately.

The consideration is the equivalent or return for which the
promise is given; and in the English law it is a necessary
element in an agreement, besides the promise, in order to
create a contract by mere agreement. The object of this re-
quirement is to avoid the risk of giving a binding effect to
promises made inadvertently, and without an obligatory in-
tention ; and with this object the law provides that all pro-
mises not made by way of bargain, in return for a valid con-
sideration, are void of effect as simple contracts (0b).

Contracts made in the form of a deed under seal, or created
by record do not require a consideration. The formality of the
contract alone gives sufficient security of a deliberate inten-
tion and renders the promise legally binding. Hence, gra-
tuitous promises, which are not given, by way of bargain,
for a consideration, though they cannot be made binding in
the form of asimple contract, may be rendered obligatory by
using the form of a contract under seal. A deed may also
be used to give effect to an agreement containing a valid
consideration ; and in such case, if the deed does not state
the consideration, or does not state it completely, the par-
ties may prove the consideration, if required, by extrinsic
evidence, provided it is not mconsistent with the deed (c).

(a) See ante, pp. 9, 10. (ce) Ante, p. 84; Leifchild’s case,
(b) Ante, p. 10, L. R. 1 Eq. 321.
SECT. I. THE CONSIDERATION. 311

An apparent exception to the rule that a consideration is Bills of cx-
essential in simple contracts arising from agreement occurs ae
in bills of exchange and promissory notes. Bills of exchange missory
by the custom of merchants are valid without the considera- oe
tion appearing in express terms on the face of the instru-
ment (a); and promissory notes are placed on the same foot-
ing with bills of exchange, in this respect, by the statute 3
& 4 Anne, c. 9; so that the payee or indorsee of a promis-
sory note may maintain an action upon it, in the same man-
ner as upon a bill of exchange, without allegation or proof of
a consideration for the promise (3).

A consideration is really necessary in these contracts, as

it is in all other simple contracts arising from agreement ;
but a bill cf exchange or a promissory note raises a prima
Jucie presumption of value received for it, sufficient to sus-
tain the promise, without further proof of consideration (c).
The original negotiation and every indorsement of these in-
struments is presumed to have been made for value, until
such presumption is rebutted by proof to the contrary (d).
Consequently, if the consideration of a bill of exchange or
promissory note is put in issue, the onus probandi lies on the
party denying the consideration (e). There is a rule of law,
however, that proof of fraud or illegality in the inception of
the bill, or that it has been lost, or stolen, will turn the pre-
sumption the other way, and will compel the holder to prove
that he gave consideration for it (f).

The adequacy of the consideration, in point of value, as;‘/dequacy

i romise 18 i ial in Englis _ of the con-
an equivalent for the promise is immater J glish law Ce

The parties are at liberty to make what bargains they please ;
and, provided the consideration agreed upon is such that the
law can recognize its existence, the adequacy of it in value

(a) Pillans y. Mierop, 3 Burr. 1672, (e) Mills v. Barber, 1 M. & W.
1674; and see ante, p. 106. 425. i

(b) See Clerke v. Martin, 2 L. (f) Mills v. Barber, 1 M. & W.
Raym. 757; Brown v. Harraden, 4 425, 432; Bailey v. Bidwell, 13 M.
T. R. 148; Byles on Bills, 8th ed. & W. 73; Smith v. Braine, 16 Q. B.
108. 244; 20 L, J. Q. B. 201; Harvey
(c) Per Abbott, C.J., Holliday v. Vv. Towers, 6 Ex. 656; Mather v. Lord
Atkinson, 5 B. & C. 501, 503. Maidstone,1 C. B. N.S. 273; 26 L,

(@) See Byles on Bills, 8thed.108. J.C. P. 58; and see ante, p. 282.
Adequac
of the a
sideration,

Good and
valuable
considera-
tions.

312 CHAP. III. THE MATTER OF CONTRACTS.

as a return for the promise is left wholly to the estimation of
the parties to the agreement (a).

The consideration that the plaintiff would give up to the
defendant a document, purporting to be a guarantee, was
held sufficient, notwithstanding the document intended in
the agreement and given up to the defendant was invalid as
a guarantee; the Court saying that they could not inquire
into the object or motive of the defendant in wanting the
document (). The execution by the plaintiff of an inden-
ture of apprenticeship for binding the defendant’s son to
him as apprentice, was held to be a sufficient considera-
tion for an I. O. U. given by the defendant to secure the
premium, although the indenture was void by the statute
8 Anne, c. 9. s. 38, for not truly setting forth the considera-
tion (c). The consideration that the plaintiff consented to
allow the defendant to weigh two boilers of the plaintiff was
held sufficient; because the defendant could not have ob-
tained it without the plaintiff’s consent, and the Court could
not inquire into his reasons for wanting it, or what benefit
he expected to derive (d).

For some purposes what is called a good or meritorious con-
sideration is recognized as distinguished from a valuable one.
According to Blackstone “ a good consideration is such as that
of blood, or of natural love and affection,—being founded on
motives of generosity, prudence, and natural duty.”

The phrase “ good consideration,” as thus explained, im-
ports merely the motive of natural affection towards rela-
tions, and excludes the element of compensation or equiva-
lent for the promise which is essential to constitute a legal
consideration. Hence a promise impelled by a good considera-
tion only is a gratuitous promise (e).

(a) Per Alderson, B., Pilkington v.
Scott, 15 M. & W. 657, 660; Hitch-
cock v. Coker, 6 A. & E. 438, 456;
Skeate v. Beale, 11 A. & EH. 983, 992.

(6) Haigh v. Brooks, 10 A. & BH. 309.

(4) Westlake v. Adams, 5 C. B. N.
8. 248 ; dissentiente Williams, J.; and
see Jackson v. Warwick, 7 T. R. 121.

(d) Bainbridge v. Firmstone,8 A. &
EE, 743.

(e) 2 Bl. Com. 297; Story, Eq. Jur.

§ 354; and see Bret v. J. S., Cro.
Eliz. 756; Tweddle vy. Atkinson, 1 B.
& S. 393, 398. It seems that the only
purpose for which a good considera-
tion may be effectual is to support a
covenant to stand seised to uses;
see 2 B]. Com. 337 ; Shep. Touch. 512;
Hayes’ Introd. to Convey., 5th ed. 102.
Deeds made upon good consideration
only are considered as merely volun-
tary and are held void as against cre-
SECT. I, THE CONSIDERATION. 313

It is sometimes laid down as a distinct rule that “the The con-
consideration for a promise must move from the plaintiff’ Sdction |
than which, it is said, “no rule is more clear in law” (a). In from the
the case of Price v. Waston the declaration stated that W. P. mane
owed the plaintiff £13, and that in consideration thereof
and that W. P. had promised the defendant to work for
him at certain wages and leave the amount in his hands,
the defendant promised to pay the plaintiff the sum of £13 ;
upon demurrer, the declaration was held bad, because “‘ it did
not show any consideration for the promise moving from
the plaintiff to the defendant” ()). The meaning of which
rule seems to be that the matter of the consideration must
be done or suffered by the promisee himself, or, if by a
third party, at the request and by the procurement of the
promisee, and as the agreed equivalent for the promise ;
and, with this meaning, the rule seems to import no more
than is necessarily implied in the conception of a considera-
tion for the promise as already explained (c).

The consideration of a promise may be some matter exe- Executed
cuted or done at the same time as the promise is given, ee
and in return for which it is given; as goods sold and de- erations.
livered, work performed, money paid or lent, etc.; or it may
be a promise to perform some matter in return for the pro-
mise then given, as a promise to deliver goods, or perform
work, or pay money, etc. In the former case the considera-
tion is called an executed consideration ; in the latter it is
called an executory one (d).

It is important to observe the distinction between a con-
tract containing an executory consideration, and a mere
offer or proposal of a contract upon a consideration then
executory which first becomes a complete contract by the
performance of the consideration ; as where a request is
made to perform the consideration upon certain terms,
which may be accepted by a performance of the considera-
ditors and bond fide purchasers for and see 2 Wms. Saund. 1379.
value, 2 Bl. Com.297 ; Gully v. Bishop (0) Price vy. Easton, 4B. & Ad.
of Exeter, 10B. & C. 584, 606; Pul- 433; and see Crow v. Rogers, 1 Str.
vertoft v. Pulvertoft, 18 Ves. 84; 592; cited ante, p. 221; and see the
Buckle v. Mitchell, ib. 100 ; Story, Eq. rule there stated as to parties.

Jur. §§ 3538, 425. (ce) See ante, p. 10.
(a) Smart v. Chell, 7 Dowl. 781; (d) See ante, p. 10.
Past con-
sideration,

314 CHAP. III. THE MATTER OF CONTRACTS.

tion aecording to the request (a). In the latter case there
iS no contract until the consideration is executed ; and in
the meantime the request or offer of the contract may be
withdrawn. In the former case there is a binding contract
independent of the execution of the consideration ; the pro-
mise of performance and not the performance constituting
the consideration, and the contract consisting of promises
on both sides, which cannot be withdrawn after they have
been mutually exchanged.

So far as regards the matter of the consideration, as
heing executed or executory, it may be observed that what-
ever matter, if executed, is sufficient to form a good exe-
cuted consideration, if promised, is sufficient to form a good
executory consideration; so that the distinction of executed
and executory consideration has no bearing upon the question
of the sufficiency of any particular matter to form a consi-
deration.

A matter executed and past before the time of making
the promise cannot constitute a valid consideration ; for to
give a promise in return for a past matter only, must neces-
sarily be a voluntary and gratuitous act (b). In the case of
Roscorla v. Thomas, the declaration, stating that in conside-
ration that the plaintiff had bought a horse of the defend-
ant at a certain price, the defendant promised that the
horse was sound, was held bad; because the sale of the
horse alleged to be the consideration for the promise was
stated as past before the promise was made (c). Upon the
same principle past debts are not a sufficient consideration
for a guarantee of such debts; but giving credit in future,
or any other sufficient consideration, will support a promise
to guarantee all debts past as well as future (d). A promis-
sory note, given as a reward for past services which had
been rendered gratuitously, was held not to be binding (e).

(a) See ante, p. 24. 7 (c) Roscorla y. Thomas, 3 Q. B.
(b) See Lampleigh v. Brathwait, 284.
Hob. 105; 1 Smith, L. C. 5th ed. (d) Johnston vy. Nicholls, 1 C.B. 251;

p- 185; Hunt v. Bate, Dyer, 272a; Boyd v. Moyle, 2C. B. 614; White v.
Eastwood v. Kenyon, 11 A. & E. 438, Woodward, 5 C. B. 810; Hoad v.
452; per Tyndal, C.J., Thornton v. Grace,7 H.& N.494; 31 L.J. Ex. 98.
Jenyns, 1 M. & G. 166,188; Raleigh (e) Hulse vy. Hulse, 17 C. B. 711;
v. Athinson, 6 M. & W. 670. 25 L. J. OC. P.177,
SECT. I. THE CONSIDERATION. 315

It may here be noticed that where a contract is made
upon an executed consideration, either by the consideration
being executed upon request, or by the acceptance of the
executed consideration, the consideration is not executed
and past before the promise is made; but the execution of
the consideration and the making of the promise are re-
garded in law as concurrent acts (a). In such contracts the
only binding promise is that expressed or implied at the
time of the execution of the consideration ; and a promise
subsequently made, in respect of the same consideration,
however expressed, would be void, as being made on a past
consideration ; the only effect such a promise could have,
would be by way of admission of the prior liability (b). A
declaration, charging a debt for work and labour done by
the plaintiff for the defendant, in consideration whereof the
defendant afterwards promised to pay, was held bad, be-
cause it stated a past consideration, and did not show that
the consideration was executed at the request of the de-
fendant, or was accepted by him (c). In the case of Lamp-
leiyh v. Brathwait (d) the declaration claimed for services
rendered by the plaintiff at the request of the defendant,
alleging that afterwards, in consideration thereof, the de-
fendant promised, etc.; and it was held good, because the
services rendered at the request of the defendant implied a
promise to pay for them, and the subsequent promise, which
alone would not have been binding, merely related back to
the original request.

The doctrine prevailed for some time in the English law Promise to
that an express promise to perform a previously existing te
moral obligation created a valid contract without any con- moral obli-
sideration of value; and the contract was then said to be oe
made upon a moral consideration. But it is clear that a
promise, if moved by a sense of moral obligation only, is,
strictly speaking, gratuitous; and it has been at length de-

cided that no contract arises, in general, in such case.

(a) See ante, p. 28. (c) Hayes v. Warren, 2 Strange,
(b) Hopkins v. Logan, 5 M.& W. 933. 2
241; Kaye v. Dutton, 7M. & G.807 ; (d) 1 Smith’s L. C. 5th ed. 185;

815; Roscorlav. Thomas, 3 Q.B.234. ante, p. 24.
Promise to
perform
previous
moral obli-
gation,

316 CHAP. III. THE MATTER OF CONTRACTS.

It was said by Lord Mansfield, C.J., that “ where a man
is under a moral obligation, which no court of law or equity
can enforce, and promises, the honesty and rectitude of
the thing is a consideration” (a). The case of Leev. Muqge-
ridge (6) continued for some time to be the leading authority
upon this point: a woman, married and, therefore, incom-
petent to contract, gave a bond for repayment by her exe-
cutors, of money advanced at her request to her son-in-law.
After her husband’s death she promised in writing that her
executors should settle the bond. It was held that that
promise was binding upon her executors. Mansfield, C.J.,
said ‘‘It has been long established, that where a person is
bound morally and conscientiously to pay a debt, though
not legally bound, a subsequent promise to pay will give a
right of action. The only question, therefore, is whether
there appears a good moral obligation. Now I cannot con-
ceive that there can be a stronger moral obligation than is
here stated. Here is a debt, created at the desire of the
testatrix, lent in fact to her, though paid to her son-in-law.
After her husband’s death, she, knowing that this bond had
been given, that her son-in-law had received the money and
had not repaid it, knowing all this she promises that her
executors shall pay. If then it has been frequently decided
that a moral consideration is a good consideration for a pro-
mise to pay, this declaration is clearly good.”

This doctrine after prevailing for some time and causing
much uncertainty and confusion in the law of simple con-
tracts was finally overruled in the case of Hastwood v.
Kenyon (c). The question there arose, upon a motion in
arrest of judgment, whether the declaration showed a suffi-
cient consideration for the promise. It stated, in effect,
that the plaintiff had voluntarily acted as guardian and
agent for the defendant’s wife while she was a minor and
unmarried, and had yoluntarily expended money for the
improvement of her estate, and had obtained the money for

(a) Hawkes y. Saunders, Cowp.  v. Banivell, 2 East, 505, 506,
289, 290; and see Athins v. Hill, (6) 5 Taunt. 36.
Cowp. 284, 289; per Mansfield, C.J., (ec) 11 A. & E. 488; and sce
Gibbs v. Merrill, 3 Taunt. 307, 311 ; Wennall vy. Adney, 3 B. & P. 249,
per Lord Ellenborough, C.J., Atkins note (@).
SECT. I. THE CONSIDERATION. 317

that purpose by borrowing it upon his promissory note, and
that the defendant’s wite had received the benefit of the
expenditure, and after she came of age promised to pay the
note, and after the marriage with the defendant, in con-
sideration of the premises, the defendant promised to pay
the note. It was argued for the plaintiff that the declara-
tion disclosed a sufficient moral consideration to support the
promise; but the Court, in a judgment in which all the
authorities on the subject were reviewed, refused to acknow-
ledge the doctrine that a moral obligation is a sufficient
consideration for a subsequent promise, and held the decla-
ration to be bad, because it stated no consideration but a
past benefit, not conferred at the request of the defendant,
In commenting on the doctrine in question they said :—
“The doctrine would annihilate the necessity for any con-
sideration at all, inasmuch as the mere fact of giving a pro-
mise creates a moral obligation to perform it. The enforce-
ment of such promises by law, however plausibly reconciled
by the desire to effect all conscientious engagements, might
be attended with mischievous consequences to society ; one
of which would be the frequent preference of voluntary
undertakings to claims for just debts. Suits would thereby
be multiplied, and voluntary undertakings would also be
multiplied, to the prejudice of real creditors” (a). The law
has since been considered as settled in accordance with this
judgment (b).

There-are some instances of promises which used to be
referred to the principle of previous moral obligation, and
which were still held to be binding, although that principle
was rejected. Lord Mansfield gave the following, amongst
other instances, as applications of the principle, namely :—
A promise in renewal of a debt barred by the Statute of
Limitations,—a promise after full age to pay a debt con-
tracted during infancy,—a promise by a person formerly
bankrupt to pay a debt discharged by his certificate (c).
The efficacy of such promises is now referred to the principle
that a person may renounce the benefit of a law made for

(a) 11 A. & EH. 450. 495, 591.
(b) Beaumont v. Reeve, 8 Q. B. 483, (c) Hawkes v. Saunders, Cowp. 289,

487; Jennings v. Brown, 9 M. & W. 290.
Promise to
perform
previous
moral obli-
gation.

318 CHAP. Ill. THE MATTER OF CONTRACTS.

his own protection ; it was laid down “that where the con-
sideration was originally beneficial to the party promising,
yet if he be protected from liability by some provision of the
statute or common law, meant for his advantage, he may
renounce the benefit of that law; and if he promises to pay
the debt, which is only what an honest man ought to do, he

_ is then bound by the law to perform it”? (a).

Promise to
perform
previous
legal obli-
gation.

Promises to pay debts barred by bankruptcy were deprived
of all binding effect by the Bankrupt Law Consolidation Act,
1849, 12 & 18 Vict. c. 106, s. 204, repealed but re-enacted
in substance by the Bankruptcy Act, 1861. By the latter
Act, 24 & 25 Vict. c. 184, s. 164, it is enacted that “ After
the order of discharge takes effect, the bankrupt shall not
be liable to pay or satisfy any debt claim or demand prove-
able under the bankruptcy, or any part thereof, on any con-
tract, promise, or agreement, verbal or written, made after
adjudication.”? The above enactment, it may be observed,
prevents any liability to pay debts proveable under the bank-
ruptcy arising from contracts promises or agreements, even
when made upon a new and valid consideration; so that a
bankrupt cannot by any mode contract to pay a debt dis-
charged by bankrupty (0).

Promises to pay debts barred by the Statutes of Limita-
tion, and promises to pay debts contracted during infancy
are treated more appropriately in connection, respectively,
with the subjects of the limitation of actions on contracts,
and the effect of infancy on the capacity to contract (c).

An express promise to perform a previous legal obligation
if made gratuitously and without some new consideration
to support it, does not alone create any new obligation.
Thus, if a person promises to pay in one right what he was
previously lable to pay in another, as if a person promise to
pay as his own debt, a debt due from him as executor only,
such promise is not binding without a new consideration (cl).

(a) Earle v. Oliver, 2 Ex. 71, 89; (ec) See post, Chap. IV, Sect. NTI,
Flight v. Reed, 1 HW. & OC. 718,716; “Statutes of Limitations;” ante,
32 L. J. Ex. 265, 268; Wennaliv. Chap. II. Sect. II, “Capacity of
Adney, 3 B. & P. 219, note (a). Parties,” p. 229.

(b) Ashley vy. Killich,5 M. & W. (d) Rann v. Hughes, 7 T. BR. 350
509. (a) ; ante, p. 125.
SECT. I. THE CONSIDERATION. 319

So, if a person being liable to another for unliquidated
damages for an injury, promises to pay him a certain
sum of money, such promise is merely gratuitous and void,
unless made upon some consideration, as of a release of
the right of action for damages or of staying proceedings
in such action (a). A promise to pay a bill of exchange
which had been accepted by the defendant was held invalid,
there being no new consideration to support the promise,
notwithstanding the bill had been lost, and therefore could
not be put in suit (0).

Conversely, the performance of, or a promise to perform, Considera-
what a person is under a previous legal obligation to per- se oe ee
form forms no new matter for a consideration and cannot °bligation.
support a promise. Thus, thé payment of a debt which a
person is under a legal obligation to pay will not support
a promise made to him in consideration of his so doing (¢).
So, if a debt from its nature carries interest, an agreement
for the creditor to give an extended time for payment in
consideration of the debtor paying the interest during that
time, is void for want of consideration (d).

So, payment of part of a debt is alone no consideration
for the discharge or forbearance of the residue (e). But in
arrangements made between a debtor and his creditors to
pay a composition for his debts, the giving up a part of
their claims by the other creditors is a valid consideration
for each one giving up a part of his and accepting the com-
position in lieu of the whole; and so the payment or promise
to pay the composition becomes a good consideration for the
agreements of the creditors (f). Where an action has
been commenced for an unliquidated demand, payment by
the defendant of an agreed sum in discharge of such demand
is a good consideration for a promise by the plaintiff to

(a) Smart v. Chell, 7 Dow]. 781; (e) Down v. Hatcher, 10 A. & E.
and see Wilkinson v. Byers,1 A. &E. 121; Smith v. Page, 15 M. & W. 683 ;
106; Crowther v. Farrer, 15 Q. B. and see post, Chap. IV, Sect. VII,

677. “¢ Payment.”
(8) Davis v. Dodd, 4 Taunt. 602. (f) Steinman v. Magnus, 11 East,
(c) Jones v. Waite,5 Bing. N.C. 390; Good v. Cheesman, 2 B. & Ad.
341, 356. 328; Norman v. Thompson, 4 Ex.

(d) Orme v. Galloway, 9 Ex.544; 7555; Boyd v. Hind, 1 H.’& N. 938,
23 L. J. Ex. 118. 947; 26 L. J. Ex. 164, 166.
Considera-
tion of pre-
vious legal
obligation,

320 CHAP. III, THE MATTER OF CONTRACTS.

stay proceedings and pay his own costs; and according to
Littledale, J., upon the authority of the case of Reynolds v.
Pinhowe (a), even in the case of a liquidated demand the
payment of such demand would be a good consideration for
the same promise (6).

A promise to pay a witness at a trial compensation for his
loss of time, in consideration of his attendance and evidence,
is void ; because the witness is bound by law upon his sub-
poena to attend and give evidence, without any other charge
than for his expenses (c). A promise to pay money to a
sheriff, in consideration of his doing that which he is bound
by law to do without remuneration, as executing a writ of
elegit, is void (d). The defendant offered a reward to who-
ever could give him such information as would lead to the
conviction of a felon, and the plaintiff, a police constable,
gave the required information and claimed the reward; the
defendant disputed the plaintiff’s right to claim the reward

‘on the ground that he was legally bound as constable to

give information, so that there was no consideration for the
defendant’s promise to pay him; but the Court held that as
there might be information which the defendant was not
bound as a constable to give, there might be a sufficient
consideration to support the promise (e).

So, generally, where a contract is complete and binding,
however it arose, a promise by one of the parties to perform
what he is bound to do by the contract is not a sufficient con-
sideration to support a new promise by the other party (/).
‘Where seamen have bound themselves by articles of agree-
ment to serve for a whole voyage, the mere performance of
their duties during the voyage forms no consideration for
promises of increased pay; so, where some of the crew of
a ship had deserted, a promise made by the captain to the
remainder of the crew, who were before bound by articles
of agreement to complete the voyage, to give them increased

(a) Cro. Eliz. 429. (ad) Bridge v. Cage, Cro. Jac.

(6) Wilkinson v. Byers, 1 A. & BE. 1038.
106 ; and see Crowther v. Farrer, 15 (e) England vy. Davidson, 11 A. &
Q. B. 677. E. 856.

(ec) Willis vy. Peckham, 1 B. & B. (f) Jackson v. Cobbin, 8M. & W.
oe Collins v. Godefroy, 1B. & Ad. 790.

0.
SECT. I. THE CONSIDERATION. 321

wages merely for continuing the voyage was held void for
want of consideration (a). But seamen are not bound to
continue a voyage under circumstances dangerous to lite;
so, where in consequence of desertions it became dangerous
to continue the voyage, the remaining seamen, not being
bound to proceed, were at liberty to make a new contract
stipulating for increased pay ().

Ifa man has already contracted with another to do a cer-
tain thing, he cannot make the performance of it a conside-
ration for a new promise to the same individual; but where
there has been a promise to one person to do a certain thing,
it is possible to make a promise to another to do the same
thing, which may form a valid consideration in a contract
with that other. As, where the plaintiff had contracted
with another to deliver coals to the defendant, and after-
wards by another contract made with the defendant, in
consideration that the plaintiff would deliver the same coals
to the defendant, the defendant promised the plaintiff to
unload and discharge the coals in a certain manner, the
consideration was held sufficient to support the promise of
the defendant (c).

If money is paid to induce a person to do what he is under
a previous legal obligation to do, the payment is, in general,
considered as an involuntary payment, and the money may
be recovered back (d).

Where the consideration of a contract is executory, that Tee's
is to say, in the form of a promise, it must, as a general eas
rule, be possible of performance ; for a consideration, im-
possible of performance, would be equivalent to none. The
effect of impossibility of performance upon an agreement, both
where it exists at the time of making it, and where it super-

venes subsequently, is treated of in a separate section (¢).

(a) Stilk v. Myrick, 2 Camp. 317;
Harris vy. Watson, Peake, 72; Frazer
v. Hatton, 2 C. B.N. 8.512; 26 L.
J. C. P. 226; and see Clutterbuck v.
Coffin, 3 M. & G. 842; Harris v.
Carter, 3 E. & B. 559; 23 L. J. Q. B.
295. é

(6) Hartley v. Ponsonby, 7 BH. & B.

872; 26L. J. Q. B. 322.

(c) Scotson v. Pegg, 6 H. & N. 295 ;
80 L. J. Ex. 225; and see Shadwell
y. Shadwell, 9 C. B. N. 8. 159; 30
L. J. C. P. 146.

(d) See ante, p. 56.

(e) Post, Chap. ITI, Sect. IIT, “ Im-
possible Contracts.”

Y
322 CHAP, III. THE MATTER OF CONTRACTS.

(legal cons The consideration for a promise must also be legal; a

eee promise founded on an illegal consideration is void. There
is no difference, in this respect, between considerations
executed and executory ; a matter which is illegal is equally
inefficacious to support a promise both before it is executed
and after complete execution. The effect of illegality in the
matter of a contract is treated in a separate section (a).

oe Where the alleged consideration of a promise is partly

void. void, but on grounds not tainted with illegality, if a suff-

cient consideration remains, the contract is good and the
promise binding; so where one promise is alleged to be
made upon several considerations, and one or more of them
is void, or insufficient in matter of form, yet if one of such
considerations is good the promise will be supported (b).
In the case of Shackell v. Rosier, Tindal, C.J., said :-—
“‘When a promise rests on two considerations, one of which
is impossible or unintelligible, you may reject the impossible
or unintelligible, and resort to that which is possible and
plain. But all the books take a distinction as to the case
where part of the consideration is illegal.” In that case the
contract between the plaintiff and the defendant was that,
in consideration of the plaintiff publishing a libel and de-
fending an action for its publication, the defendant promised
to indemnify the plaintiff from the costs; the consideration
being illegal, at least so far as regarded the publication of
the libel, the contract was held altogether void, and the
plaintiff not entitled to recover on the indemnity (c).

If in a declaration a material part of the consideration is
alleged untruly, or is omitted, or is not proved, it would
create a variance which, if not amended, would be a ground
of nonsuit (d). Where the contract was stated in the decla-
ration to be the sale of a horse for £63, and the considera-
tion proved was that the plaintiff should pay that sum, and

(a) Post, Chap. III, Sect. IV, “ T-
legal Contracts’? ; where see also as
to the effect of illegality of part of the
consideration.

(6) Bradburne v. Bradburne, Cro.
Eliz. 149; Colson vy. Carr, Cro, Eliz.

848; Ring v. Roxbrough,2 C. & J.
418 ; King v. Sears, 2 C. M. & R. 48.
(¢) Shackell v. Rosier, 2 Bing. N.C.
634.
(@) See Colson v. Carr, supra; 1
Chitty on Pleading, 7th ed. 304,
SECT. I. THE CONSIDERATION. 328

if the horse was lucky should give the defendant £5 more or
the buying of another horse, it was held to be no variance ;
Lord Tenterden, C.J., said :—“ The substantial and opera-
tive part of the consideration is sufficiently alleged in the
declaration.—The remaining part is much too loose and
vague to be considered in a court of law” (a).

In contracts with an executory consideration, if the per- paiture ot
formance or fulfilment of the consideration forms a condition cosidera-
precedent to the liability under the contract, the failure of
the consideration discharges that liability. If the perform-
ance or fulfilment of the consideration does not form a con-
dition precedent to the liability under the contract, but
consists of an independent promise, the failure in the per-
formance of the consideration does not affect the lability on
the other side, and has the effect only of a breach of the
contract, giving a right of action for damages (9).

Where money has been paid for a consideration which
entirely fails, the money may, in some cases, be recovered
back (c).

The matter of the consideration required to support a Matter of
promise must consist of some benefit or advantage to the ‘he en
promiser, or some loss or disadvantage to the promisee, in
return for which the promise is made (d). The following
definition of a consideration was adopted by Tindal, C.J., in
the case of Luythoarp v. Brird person‘ It is defined to be
any act of the plaintiff fronthe defendalefendant or a stranger
derives a benefit or advayould support labour, detriment, or
inconvenience sustainedhe debt ( Fs f, however small the
detriment or imconveniply to the magisizch act is performed
or inconvenience sufferd child against thf with the consent,
express or implied, ot for a promise ¥ OF in the language

(a) Guthing v. Lynn. 2 B. & Ad
232; and see Thomas v. Thomas, 2
Q. B. 851; Crisp v. Gumel, Cro. Jac.
128.

(6) See post, p. 344, as to dependent
and independent promises.

(c) See ante, p. 60.

(a) Greenleaf v. Barker, Cro. Fiz.

193 ; see per Buller, J., Nerot v. Wal-
lace, 3 T. R. 17, 24; per Lord Ellen-
borough, C.J., Bunn v. Guy, 4 East,
190, 194; Williamson vy. Clements, 1
Vaunt. 523.

(e) 3 Scott, 238, 250, quoting Sel-
wyn’s N. P. tit. Assumpsit, 8th ed.
p. 47; 2 Wms. Saund. 187 h.

y2
324 CHAP. II], THE MATTER OF CONTRACTS.

of pleading, at the special instance and request of the de-
fendant.”

The matter of the consideration may tend to the benefit
of the defendant, or of a third party, or may not be be-
neficial to anybody; the mere fact of the promiser him-
self obtaining no benefit in return for his promise is im-
material, provided he has made the promise in order to ob-
tain the consideration from the plaintiff, and-as the agreed
equivalent for it (a). For example, in contracts of gua-
rantee “itis enough if the person for whom the guarantor
becomes surety derives a benefit, or the person to whom
the guarantee is given suffer inconvenience, as an induce-
ment to the surety to become guarantee for the principal
debtor” (4).

What matters will serve to form the consideration for a
promise may be conveniently shown by some of the deci-
sions concerning the sufficiency of considerations.

Forbear- Forbearance of legal proceedings by a person entitled to
Halon sue, fora certain sp ~-_— 444 3 a valid consideration for
claims. a promise (ec) ; fork geod ep pe alaintiff, who was merely

a receiver appoir pgaretl ve gowepf Chancery, was held a
good considerati 1 fO ka yey the defendant to pay
the debt (d). F cal ° egg editor to sue an executor
for a debt of hir * fue * 2 certain time was held a
LW mt

valid consideration. 9 any sromise by the executor to
pay the debt himseh: _-: |?) he af

A guarantee of a recover or ed to be made “in consi-
deration of your for miesal Pa for immediate payment
of the debt,” not) ¥¢ omitted, or » J, was held to be made
upon a sufficient ¢ a uot amend yas considered as im:
porting a forbearan r Pe UEP CONMACD ® ..onable time (f). A

guarantee was made GF a: esse tot £6-» consideration of the
*“e plaintiff she

(a) See per Yates, J., Pillans ~ ~~ (d) Ib.
Mierop, 3 Burr. 1663, 1673; per (e) Fisher v. Hall, Cro. Jac. 47
Lord Ellenborough, O.J., Jones v. and see Rann v. Hughes, 7 T. R.
Ashburnham, 4 Wast, 455,463; Builey 350n. (a); Davis v. Reyner, 2 Lev. 3;

v. Croft, 4 Taunt. 611. ante, p. 125.
2 Morley v. Boothby, 3 Bing. 107, (f) Oldershaw v. King, 2H. & N.
113 517; 27 L. J. Ex. 120; but see

(c) Willatts y, Kennedy, 8 Bing. 5. Semple v. Pink, 1 Ex. 74,
SECT. I. THE CONSIDERATION. 825

plaintiff forbearing to take any proceedings against the
debtor (no time being specified), the defendant guaranteed
to the plaintiff payment of the debt upon a fixed day; it
was held that the guarantee imported a forbearance to sue
the debtor until the day fixed, and that such forbearance
was a condition. precedent to the liability upon the gua-
rantee (a). A promissory note given for an existing debt is
evidence of an agreement to suspend the remedy for the
debt until the note is due, which is a sufficient consideration
to support the note (lb). A creditor applied to his debtor
for security for the debt, and in consequence of the appli-
cation the debtor promised to give certain security ; it was
held that, though there was no promise by the creditor to
abstain from suing for any given time, yet the effect being
that the debtor did in fact receive the benefit of some de-
gree of forbearance, there was sufficient consideration to
support the promise, and the creditor was entitled to the
benefit of the promised security (c).

A parol undertaking not to enforce the covenants in a
deed executed by the defendant, is a good consideration for
a promise of the defendant, although such undertaking,
not being under seal, has no legal effect upon the deed, and
does not release the covenants; for an action might be
‘maintained for a breach of such undertaking (d).

Forbearance by the plaintiff to sell the goods of a third
person under a bill of sale, or to execute a writ of fi. fa.
against the goods of a third person, is a sufficient conside-
ration for a promise by the defendaxt to pay the debt (e) ;
and such considtration would support a promise to pay even
a larger amount than the debt (/').

Forbearance to apply to the magistrates for an order of
affiliation of a bastard child against the defendant was held
a valid consideration for a promise to pay for its mainte-
nance (q).

(a) Payne v. Wilson, 7 B. & C. (d) Nash v. Armstrong, 10 C. B.
423; Rolt v. Cozens, 18 C. B. 673; N.S. 259.
25 L. J.C. P. 254. (e) Barrell v. Trussell, 4 Taunt.
(8) Baker v. Walker, 14M.& W. 117; Pullin v. Stokes, 2 H. BI. 312.
‘465. (f) Smith v. Algar, 1 B. & Ad.

(c) The Alliance Bank v. Broom, 603. ;
2 Dr. & Sm. 289; 34 L. J. C. 256. (g) Linnegar v. Hodd, 5 C. B. 437.
Equitable
rights as
matter of
considera
tion.

Pretended
and sup-
posed
nights.

326 CHAP. III, THE MATTER OF CONTRACTS.

The release of a right of action for unliquidated damages
for a tort is a valid consideration for a promise to pay a
fixed cum (a). So, to stay proceedings in an action then
pending, or a promise to stay proceedings in such action, is
a sufficient consideration for a promise by the defendant (b).

The discharge of the defendant from arrest forms a valid
consideration for a promise by him, if the arrest was legal (¢).

Equitable rights, that is to say, such as are enforced only
in a court of equity, are recognized in courts of law as pro-
viding sufficient matter for the consideration of a contract,
in respect of the forbearance, release, or assignment of such
rights (d). In the case of a mortgage, courts of law will
take notice that the mortgagor has an equity of redemption
in Chancery, so far as to recognize a release of the equity
of redemption as a valid consideration (¢). Forbearance of
a suit for a legacy, which cannot be recovered in law and
therefore is merely an equitable claim, was held a valid con-
sideration to charge an executor upon his own promise to
pay it (f).

Though a contract, as a general rule, is not assignable at
law, so as to enable the assignee to sue upon the contract
in his own name, it is assignable in equity so as to enable
the assignee to enforce the contract in the name of the as-
signor; and courts of law recognize such assignment as
affording a valid consideration (g). Thus, the assignment
of a debt, though of uncertain amount (h), and the assign-
ment of the benefit of a contract for the purchase of land is a
valid consideration (7). Forbearance by the assignee of a
contract, although his right is only equitable, is recognized
at law as a valid consideration, as forbearance by the as-
signee of a bond (J).

A consideration consisting of a release, assignment, or

(a) See Smart v. Chell, 7 Dowl. (f) Davis v. Reyner, 2 Lev. 3.
781; Wilkinsonyv. Byers, 1 A.&E.106. (g) Per Buller, J., Master v. Miller,

(6) Crowther v. Farrer, 15 Q.B.677. 4 T. R. 320, 341.

(c) King v. Hobbs, Yelv. 26; Sinith (A) Moulsdale vy. Birchall, 2 W.

v. Monteith, 13 M. & W. 427. Bl. 820. :
(d) Wells vy. Wells, 1 Vent. 40. (i) Price v. Seaman, 4 B. & C.
(e) Thorpe v. Thorpe, 1 L. Raym. 525.

663. (j) Morton vy. Burn, 7 A. & E. 19.
SECT. I, THE CONSIDERATION. 327

forbearance, must be grounded on a valid right, legal or Ea aee a
equitable, or at least upon a doubtful claim to a right; ipa
mere pretended claim, or a claim to what does not amount "8>"*
to a right, is not a sufficient ground for such a consideration.

The surrender of a tenancy at will is not a valid conside-
ration, because a tenancy at will is no right at all, being
determinable by a word at the will of the landlord (a). A
release by the plaintiff of all interest in an estate, reserving
his lien, where it appeared that he had no interest other
than a lien, was held not a sufficient consideration (b). The
withdrawal of complaints by a son against his father, re-
specting the manner in which the father had distributed his
property, was held no consideration to support a promise by
the father (c). A promissory note given for future services
which the payee was expected to render, but which he was
not under legal obligation to render, was held void for want
of consideration (d). An agreement made between the as-
signee of the tenant for life of an estate and the remainder-
mau, in consideration of the former forbearing from cutting
the timber, which it turned out he had no right to do in
consequence of the death of the tenant for life, unknown to
both parties, before the date of the agreement, was held
void for want of consideration (e).

Forbearance to sue where there is no cause of action is
not a sufficient consideration ; as, forbearance to sue a widow
upon a promissory note made while under coverture (/) ;
forbearance to sue an heir on the bond of his ancestor m
which he was not bound (yg). A declaration, which alleged,
as the consideration for the promise, the forbearance by the
plaintiff of a debt, but in which it did not appear that there
was any one liable and capable of being sued for the debt,
was held bad on demurrer (2). A declaration alleged merely
a dispute whether the defendant was indebted to the plain-

(a) Richardson v. Mellish, 2 Bing.
229, 244; Longridge v. Dorville,
5 B. & Ald. 117, 123.

(0) Kaye v. Dutton, 7 M. & G. 807.

(c) Whitev. Bluett, 23 L. J. Ex. 36.

(d) Hulse v. Hulse, 17 C. B. 711;
25 L. J.C. P.177.

(e) Cochrane v. Willis, L. R. 1 Ch.

Ap. 58; 35 L. J. C. 36.

(f) Loyd v. Lee, 1 Str. 94.

(g) Hunt v. Swaine, 1 Lev. 165;
Barber vy. Fox, 2 Wms. Saund. 136;
and see Tooley v. Windham, Cro.
Eliz. 206,

(h) Jones v. Ashburnham, 4 East,
455.
Pretended
and sup-
posed.
rights.

328 CHAP. II, THE MATTER OF CONTRACTS.

tiff, not stating any ground of dispute, and charged, as a
consideration for the defendant’s promise, that the plaintiff
promised not to sue the defendant for the debt in dispute ;
the declaration was held bad as not showing a sufficient
consideration (a). Where an action has been commenced,
and a promise has been made in consideration of its for-
bearance, it is presumed against the promiser to have been
well founded; “ for suits are not presumed causeless, and
the promise argues cause, in that he desired to stay off the
suit’’()). Therefore, the promiser has to rebut this presump-
tion and show that the consideration was defective by rea-
son of there being no good or doubtful cause of action for-
borne, in order to discharge himself from the promise.

In the case of Barber v. Fox (c), the declaration charged a
promise by an heir to pay a bond of his ancestor, in conside-
ration of the forbearance of an action brought against the
heir upon the bond, but it did not appear in the declaration
that the heir was bound by the bond; after verdict for the
plaintiff, it was held that the Court could make no intend-
ment to that effect, and, therefore, there appeared to be no
cause of action to support the forbearance alleged as the
consideration for the promise. In Wade v. Simeon (d), the
declaration charged a contract made upon the consideration
that the plaintiff would forbear proceeding in an action
which he had then commenced against the defendant, and
the plea alleged that the plaintiff never had any cause of
action against the defendant in respect of the action in the
declaration mentioned, which the plaintiff at the time of the
commencement of the action well knew; upon demurrer
the plea was held good, Tindal, C.J., saying :—“ In order to
constitute a binding promise, the plaintiff must show a good
consideration, something beneficial to the defendant, or de-
trimental to the plaintiff. Detrimental to the plaintiff it
cannot be, if he has no cause of action : and beneficial to the
defendant it cannot be ; for, in contemplation of law, the de-
fence upon such an admitted state of facts must be successful,

(a) Edwards v. Baugh, 11M. & — leith, 13 M. & W. 427, 440,
W. 641. (c) 2 Wms. Saund. 136,
(4) Bidwell v. Catton, Hob. 216; (d) 2C. B. 548.
cited per Parke, B., Smith v. Mon-
SECT. I. THE CONSIDERATION. 329

and the defendant will recover costs, which must be assumed
to be a full compensation for all the legal damage he may
sustain ; the consideration therefore altogether fails.”

The discharge of a prisoner from arrest, where the im-
prisonment is not legal and regular, is not a valid conside-
ration; but an arrest will be presumed lawful and regular
until the contrary is proved. Where a person makes a pro-
mise in consideration of the release of another from arrest,
it is incumbent on him to show that the arrest was illegal,
or malicious and without reasonable or probable cause, in
order to avoid the promise for want of consideration; in
an action upon a promise made upon the consideration of
the plaintiff discharging a third party whom he had arrested
upon a capias, a plea alleging only that the plaintiff had no
cause of action against the person arrested, but not stating
that the plaintiff knew that fact, was held bad (a). A pro-
mise to pay the debt of a deceased debtor in consideration
of the creditor forbearing to arrest the dead body was held
void, because such arrest would have been illegal, and there-
fore the forbearance of it formed no consideration (b).

Where there is some doubt, or dispute, or uncertainty as Disputet
to a right, the release, or forbearance, or settlement of it may inne
form the matter for a valid consideration. In the case of a
tenancy at will, if there be any doubt respecting the term
whether it be a tenancy at will or for a certain term, the
surrender of the tenancy will form a sufficient considera-
tion (c) ; the release of a prisoner arrested for debt under
a writ, which might have been set aside for irregularity,
forms a valid consideration (d). The giving up a suit insti-
tuted to try a question respecting which the law is doubtful,
or is supposed by the parties to be doubtful, is a good con-

sideration for a promise (e).

5B. & A. 117, 123.

(a) Smith v. Monteith, 13M. & W.
(d) Butcher v. Steuart, 11M.& W.
857.

427; and see Atkinson v. Bayntun,
1 Bing. N. C. 444; <dAthinson v.
-Settree, Willes, 482; Herring v. Dor-
rell, 8 Dowl. 604.

(b) Sce Jones v.

(e) Longridge v. Dorville, 5 B. &
Ald. 117; Haigh v. Brooks, 10 A. &

Ashburnham, EE. 309,325, 330; Orrell v. Coppock,

4 East, 455, 465.
(ce) Richardson v. Mellish, 2 Bing.
229, 244; Longridge v. Dorville,

26 L. J.C. 269; He p. Lucy, 4 De
G. M. & G. 356; 22,L. J.C. 732,
Disputed
and doubt-
tul rights.

Equity will

not enforce
contracts
without
considera-
tion.

330 CHAP. Ill. THE MATTER OF CONTRACTS.

Forbearing to sue for a claim bond fide made, respecting
which a reasonable doubt exists, although no proceedings
have been commenced, is a good consideration (a). Where
there was a dispute between the parties respecting the ba-
lance of mutual accounts, and it was agreed that they should
give up their respective claims, and that one should pay
the other a sum of money, the agreement was held to con-
tain a sufficient consideration for the promise to pay (b).

Where the plaintiff had seized the defendant’s goods as
a distress for rent, some rent being due, though the amount
was disputed, the withdrawal of the distress was held a good
consideration for the promise of the defendant to pay a cer-
tain sum (c). So, where the plaintiffs had detained the de-
fendant’s ship under a claim for a collision which was dis-
puted, the release of the ship was held a good consideration
for a promise of the defendant to pay the damages sus-
tained (d). The commissioners of excise had made a seizure
of spirits belonging to the defendant and had commenced
proceedings for their condemnation ; the restoration of the
spirits and the relinquishment of the suit for condemnation
was held to be a good consideration for the payment by the
defendants of the value (e).

The Courts of Equity will not grant specific performance
of contracts without consideration. In the case of simple
contracts, if a consideration be wanting, there is no contract,
either at law or in equity ; and equity will not supply the de-
fect of the consideration. In the case of contracts under seal,
no consideration is necessary to create a binding contract ;
but if the contract isvoluntary and not based on consideration,
the Court will not assist it with specific performance ; though
it will not interpose to set it aside merely on that ground (/).
By an indenture made with trustees, a father, in considera-

(w) Cook v. Wright, 1 B. & 8. (e) Atlee v. Backhouse, 3 M. & W.
33

559; 30 L. J.Q. B. 321. 633.
(6) Llewellyn v. Llewellyn, 3 D. & (f) Pulvertoft v. Pulvertoft, 18 Ves.
L. 318. 84, 99; Jefferys v. Jefferys, 1 Cr. &
(c) Skeate vy. Beale, 11 A. & E. Ph, 188; Collinson v. Pattrick, 2
983. Keen, 123, 134; M‘Fadden v. Jen-

(d) Longridge v. Dorville,5 B.&  kyns, 1 Have, 458, 461; Toker vy.
Ald. 117. Toker, 32 L. J. C. 322, 325.
SECT. I. THE CONSIDERATION. 331
tion of natural love and affection for his daughters, conveyed
certain freehold and covenanted to surrender certain copy-
hold estates to the trustees upon trusts for the benefit of his
daughters; the Court decreed the execution of the trusts
with regard to the freeholds, because the title of the trus-
tees to the freeholds was complete by the conveyance, but
refused to enforce the covenant to surrender the copyholds
because it was voluntary (a). So with a covenant to transfer
stock, if it rests in covenant and is purely voluntary, a court
of equity will not execute such voluntary covenant; but if
the party has completely transferred the stock, though it is
voluntary, yet the legal conveyance being effectually made,
the equitable interest will be enforced (4).

Upon the same principle Courts of Equity will not enforce
imperfect gifts : as, a check given gratuitously and not pre-
sented before the death of the donor (c); an assignment of
a bond without consideration (d) ; an assignment of stock or
shares by a deed in consideration of natural love and affection
and for the benefit of a child, without a legal transfer of the
stock (e) ; a voluntary agreement to grant an estate. made
only for the purpose of giving the grantee a qualification for
Parliament (f); but where the gift is complete, or the con-
tract executed, a court of equity will not interfere with the
transaction merely upon the ground that it was voluntary
and without consideration (g). Thus, a purchaser for value of
an interest in land cannot require a voluntary deed or agree-
ment affecting the estate to be delivered up to him to be
cancelled (h).

The Courts of Equity will not supply a defect in a volun-
tary appointment in execution of a power, except in favour
of a wife or child (7). So, the Courts of Equity will not

(a) Jefferys v. Jefferys, supra.

(b) Colman v. Sarrel, 3 Bro. C. C.
12; 1 Ves. jun. 50; Ellison v. Elli-
son, 6 Ves. 656, 661; 1 White &
Tudor, L. C. 2nd ed. 199.

(c) Tate v. Hilbert, 2 Ves. jun. 111.
Whether such check is valid at law
against the executor, sce id.

(d) Edwards v. Jones, 1 Myl. & Cr.
226; and see Tufnell v. Constable, 8
Sim. 69.

(e) Dillon v. Coppin, 4 My. & Cr.
647; and see Antrobus v. Smith, 12
Ves. 39.

(f) Callaghan y. Callaghan, 8 Cl.
& Fin. 374.

(g) De Hoghton v. Money, L. Rep.
1 Eq. 154,158 ; Fortescue v. Barnett,
3 My. & Cr. 36; explained-in Zd-
wards v. Jones, 1 M. & Or. 226, 239.

(h) De Hoghton vy. Money, supra.

(i) Sugden on Powers, 8th ed. 554.
Absolute
promise.

332 CHAP, III. THE MATTER OF CONTRACTS.

execute imperfect voluntary declarations of trust (a). But
a declaration of trust is considered in a court of equity as
equivalent to a transfer of the legal interest in a court of
law; and if the transaction by which the trust is created is
complete, it will not be disturbed for want of considera-
tion (8).

The adequacy of the consideration is not regarded in
equity any more than at law; and mere inadequacy of the
consideration is not a ground upon which the Courts of
Equity will rescind a contract, or even refuse a decree for
specific performance (c). But great inadequacy of considera-
tion may afford evidence of fraud or imposition ; and upon
that ground relief might be granted (d).

Cuap. II]. Sect. II. Taz Promrissz.

Absolute and Conditional Pro- Construction of Contracts as
WAISES: eceunintaciraraqaesasonics 332 to Conditions Precedent 341
Promises Conditional upon Dependent and Independ-
Lapse of Time............... 333 ent Promises ............ 344
upon a Certain or Uncertain Performance of Conditions
BIVOnt . censian vanesonaguaas 334 Precedent ............... 350
upon the Will or Act of the Excuses of Conditions
PHOMISER sos sns te sgacenoncens 335 Precedent ...........0... 351
upon the Will or Act of a Pleading Performance and
Third Party v.00... 336 FEXCUs8 eS) oy cecesneva sige 352
upon Request or Demand... 337 Alternative Promises ......... 353
upon Notice wo... 338 Election of alternative ... 054

THE promise may in its terms be absolute or conditional.
An absolute promise is one of which the performance is
due immediately, and independently of any event; as a
debt due and payable at the present time. Sucha debt, for

(a) Gaskell v. Gaskell, 2 Y. & J. v. Spratley, 1 Cox, 883; Abbott v.
502; Colyear v..Countess Mulgrave, Sworder, 4 De G. & 8. 448 ; Harrison
2 Keen, 81. v. Guest, 6 De G.M. & G. 424.

(b) Collinson v. Pattrick,2 Keen,  . (d) Lb.; and see Lowther vy. Low-
123, 1384; M‘Padden v. Jenkyns, 1 ther, 13 Ves. 95, 103; Borell v.
Hare, 458, 1 Phil. 153; Stapletony. Dunn, 2 Hare, 440, 450; Davies y.
Stapleton, 14 Sim. 186. Cooper, 5 M. & Or. 270; Cockell v.

(c) Story, Eq. Jur. § 244; Coles v. Taylor, 15 Beav. 103 ; Clark vy. Mal-
Trecothich, 9 Ves, 234, 246; Griffith pas, 31 Beav. 80.
SECT. II. THE PROMISE. 333

example, arises upon a sale of goods for ready money; or on
a promissory note payable on demand (a).

A conditional promise is one of which the performance is Conditional
not due immediately, but becomes so only after a lapse of P°'"**
time, or upon the happening of some event, certain or un-
certain. The lapse of time and the happening of the event Condition
are then called conditions precedent, in reference to the lia- ne
bility for performance of the promise.

A promise is also sometimes called conditional, when it is Condition
subject to cease or be discharged by the happening of some S¥»sequent.
event ; which is then called a condition subsequent. Such
is a bond, according to its literal construction, being the ac-
knowledgment of a debt due from the obligor to the ob-
ligee, conditioned to be void on the performance of some act,
or the happening of some event. The legal effect, however,
of a bond is to secure the performance of the act, or the
happening of the event, stipulated for in the condition ; and,
in substance, it constitutes a liability to pay, conditional on
a breach of the condition, and the amount payable is re-

stricted in law to the damages occasioned by the condition
broken (6).

Contracts may be conditional upon mere lapse of time ; Promise
thus, debts payable at a future time are subject to the con- oe
dition precedent that the specified time must elapse before °f time
the debt becomes absolutely due and payable. A debt of
this kind is called debitum in preesentt, soluvendum in futuro ;
for example, a debt arising upon a sale of goods with a
fixed period of credit given for payment ; a debt upon a bill
of exchange, or promissory note, payable at a specified time
from the date. Where goods are sold upon a contract to
pay for them by a bill, and a bill is given, the price can-
not be recovered until the period of the bill has elapsed ; but
if default is made in giving the bill, a breach of contract is
committed for which an action will le at once, the plaintiff
being entitled to recover the present value of such a bill (c).

(a) See Norton v. Ellam,2M.& Dutton v. Solomonson, 3 B. & P. 582;

W. 461. Brooke v. White, 1B. & P.N.R. 330;
(b) See ante, p. 83. Helps v. Winterbottom, 2B. & Ad.
(c) Mussen v. Price, 4 East, 147; 431.
Promise
conditional
upon a cer-
tain event,

Promise
conditional
upon an
uncertain
event,

304

Contracts may be conditional upon the happening of some
event the happening of which is certain but the time of hap-
pening of which is uncertain, as a post obit bond. A cove-
nant by a person for the payment of a sum of money three
months after his death, was held to be a debt within the
statute 3 W.& M.c. 14, which charges devisees of Jand with
the specialty debts of the testator in the same manner as
heirs (a).

Contracts may be conditional upon the happening of some
event which is altogether uncertain: as, contracts of imsu-
rance against losses by perils of the sea, or by fire; contracts
of guarantee (b); the contract of a shareholder in a company
to pay calls as they may happen to be made by the com-
pany ().

A bill of exchange may be accepted payable upon any
condition, provided the holder will take such an acceptance ;
and then it is not absolutely due until the condition is satis-
fied (d). Thus, an acceptance of a bill upon arrival of a
cargo (e), an acceptance “ to pay as remitted for” (f), “to
pay when goods consigned were sold” (g), ‘when a navy
bill was paid’’ (A), have been held to be conditional accept-
ances which become absolute upon the fulfilment of the con-
dition. An acceptance of a bill payable on giving up the
bill of lading for certain goods was held to import the con-
dition that the bill was not payable without giving up the
bill of lading, but not the further condition that the bill of
lading should be given up on the day when the bill became
due (2). A bill of exchange may also be indorsed condition-

ally (J).
But a bill or note cannot be drawn payable on a contin-

CHAP. ITI. THE MATTER OF CONTRACTS.

(d) See Byles on Bills, 8th ed. 178 ;

(a) Coope v. Cresswell, L. Rep. 2
Chitty on Bills, 10th ed. 201 ; Smith

Eq. 106; 35 L. J. C. 496.

(6) See Boyd v. Robins, 5 C. B.
N.8. 597; 28 L.3.C. P.73; White
v. Corbett, 1B. & E. 692; 28 L. J. Q.
B. 228.

(c) South Staffordshire Ry. Co. v.
Burnside, 5 Ex. 129; 20 L. J. Ex.
120; General Discount Co. v. Stokes,
17 C. B. N.S. 765; 34 L. J.C. P. 25;
and see Wentworth v. Chevill, 26 L.
J. C. 760.

vy. Vertue, 9 C.B.N. 8. 214; 30 L.
J.C. P. 56.
(e) Afiln v. Prest, 4 Camp. 393.
(f) Banbury v. Lisset, 2 Str. 1211.
(g) Smith vy. Abbot, 2 Str. 1152;
Julian v. Shobrooke, 2 Wils. 9.
(A) Pierson v. Dunlop, Cowp. 571.
(i) Smith v. Vertue, supra.
(7) See Byles on Bills, 8th ed: 141;
Chitty on Bills, 10th ed. 166,
’

SECT. II, THE PROMISE. 335

gency, of which the happening is altogether uncertain ; it
may be drawn payable on a future event of certain occur-
rence, so that the money must become payable eventually,
but not on an uncertainty, without forfeiting the character
of a bill or note (a). Such an instrument would not be
negotiable ; and the ordinary presumption of consideration
in favour of bills and notes would not arise upon it, so that
in an action brought upon it, the consideration must be
alleged and proved (0).

The promise cannot be conditional on the mere will of the Promise
party making it, for by promising to do a thing only in case cee
it pleases himself, by the very terms of the promise he is not w1!l or act

bound at all; so, a covenant amounting in terms to a pro- He ae
mise by a person to pay money to himself was held to be no
contract (c). Agreements for service where the remunera-

tion is left to the discretion of the employer do not give rise

to any contract (d).

Contracts may be made to pay for work subject to its being
done to the satisfaction or approval of the employer; in
which case, the right of approval on which the contract is
dependent must, in general, be exercised in a reasonable,
and not arbitrary or capricious manner (e). But it may be
stipulated that the satisfaction or approval shall be quite
arbitrary ; and then the only restriction upon the right of
approval is that it must be exercised in good faith, and not
merely for the purpose of defeating the contract (f). A
policy of surance was made with a company against rail-
way accidents, subject to the condition that before payment
of the sum insured the claimant should furnish to the direc-
tors of the company such evidence or information as the
directors should think necessary to establish the claim; this
was construed to mean such evidence as the directors might

(a) Carlos v. Fancourt, 5 T. R. 290; Bryant v. Flight, 5 M. & W.
482; Hill v. Halford,2B.&P.413; 114; Roberts v. Smith, 4 H. & N.
Worley v. Harrison, 3 A. & B.669; 315; 28 L. J. Ex. 164.

Robins v. May, 11 A. & E. 213; and (e) Dallman vy. King, 4 Bing. N.C

see Chitty on Bills, 10th ed. 87; 105; Parson v. Seaton, 40. B. 899.
Byles on Bills, 8th ed. 84. (f) Andrews v. Belfield, 2 C. B.
(6) Ib. N.8.779; Stadhard v. Lee, 3B. &

(ce) Faulkner vy. Lowe, 2 Ex. 595. 8. 364; 32 L. J. Q. B. 75.
(d@) Taylor v. Brewer,1 M. & 8.
Promise
conditional
upon an act
of a third
party.

336 CHAP. Il], THE MATTER OF CONTRACTS.

reasonably, and not such as they might unreasonably and
capriciously require (a).

A promise may be made conditional upon the promiser
doing an act which is discretionary in him, the object thereby
effected being that the promiser must either abstain from
doing the act or perform the promise.

A promise may be made conditional upon an act of a third
party; and the condition must be satisfied in order to render
the promise absolute. A policy of fire insurance was con-
ditioned that the minister of the parish should give a certi-
ficate as to the character of the insured and the bond fide
nature of the loss; it was held that the insured could not
recover without such certificate, although the minister un-
reasonably refused to give it (b). Upon an agreement to
purchase goods at a valuation to be made by two specified
valuers, it was held that the purchaser could not be charged
with the price until the goods had been valued by both
valuers pursuant to the agreement, though one of them
refused to act (c). Upon an agreement to do work to be
paid for by measurement to be settled by a person named
in the agreement, such measurement was held to be a con-
dition precedent to the claim for payment, and not a mere
reference of the matter to an arbitrator which could be re-
voked by the employer (d).

Upon an agreement to do certain building work to be
paid for at a certain price upon receiving a certificate in
writing of an architect named of his approval of the works,
it was held that no claim could be made by the builder until
the certificate was given (e). If the architect or surveyor
wrongfully and improperly refuses to give such certificate,
the builder does not thereby acquire any right of action

(a) Braunstein v. Accidental Death
Insurance Co., 1 B. & 8. 782; 31
L. J. Q. B. 17; and see Coles v.
Turner, L. R. 1 CO. P. 373; 85 L. J.
C. P. 169.

(6) Worsley v. Wood, 6 T. R. 710.

(ec) Thurnell vy. Balbirnie, 2 M. &
W. 786 ; and see Clarke v. Westrope,
18 C. B. 765; 25 L. J. C. P. 287.

(d) Mills v. Bayley, 2H. & C. 36;
32 L. J. Ex. 179.

(e) Morgan v. Birnie, 9 Bing. 672 ;
and see similar contracts in Milner v.
Field, 5 Ex. 829 ; Graftonv. Eastern
Co. Ry., 8 Ex. 699; Scott v. Corpora~
tion of Liverpool, 1 Giff 216; 3 De
G. & J. 384; 27 L. J. ©. 641; 28 L.
J. C. 230.
SECT. Il. THE PROMISE. 837

against the employer (a); but if the architect improperly
neglects to certify in collusion with or by the procurement
of the employer, an action may lie against the employer as
for a fraud (b). A certificate of an architect does not neces-
sarily import a certificate in writing; but a parol approval
will satisfy the condition of a certificate, unless a written
certificate is expressly stipulated for, in which case the con-
dition must be satisfied by producing a written certificate (c).

The plaintiff purchased a horse of the defendant for Is.,
upon the condition that if the horse should trot eighteen
miles in an hour to the satisfaction of a certain person ap-
pointed as judge of the performance the plaintiff should pay
£200 for the horse; the judge having refused to attend
without any default in the plaintiff, the plaintiff was held
entitled to the delivery of the horse for the 1s. (d).

A contract is sometimes made conditional upon a request Promise
or demand of performance; and then the making of the en -
request or demand is necessary to render the contract abso- quest of
lute, and in an action fora breach of the contract the request
or demand must be alleged and proved (e).

A present debt is payable without any demand from the
creditor to the debtor (f). Parties primarily liable on mer-
cautile instruments, as the acceptor of a bill of exchange, or
the maker of a promissory note, are bound to pay the holder,
when the instrument becomes due, without any demand (9).

A promissory note payable on demand is a present debt,
and is payable without any demand (h), But if such instru-

(a) Clarke v. Watson, 18 C.B.N. (e) Bach v. Owen, 5 T. R. 409,

8. 278; 34L. J.C. P. 148.

(0) Batterbury v. Vyse,2 H.& C.
42; 32-L. J. Ex. 177; and see
M'‘Intosh v. Great Western Ry. Co., 2
Mac. & Gord. 74.

(c) Roberts v. Watkins, 14 C. B.
N. 8. 592; 82 L. J. C. P. 291; Lam-
prell v. Billericay Union, 3 Ex. 283 ;
Russell v. Viscount Bandiera, 13 C.
B. N.S. 149; 32 L. J. C. P. 68; and
see Kirk v. Bromley Union, 2 Phil.
640; Goodyear v. Mayor of Wey-
mouth, 35 L. J. C. P. 12.

(d) Brogden v. Marriott, 2 Bing.
N. C. 478.

cited and explained in Radford v.
Smith, 3 M. & W. 254; Birks v.
Trippet, 1 Wms. Saund. 36 6; and
cases there cited; 1 Chit. Pl. 7th ed.
339.

(f) Cranley v. Hillary, 2M. & 8.
120, 122; per Parke, B., Kington v.
Kington, 11 M. & W. 233, 235.

(g) Hume v. Peploe, 8 East, 168;
Poole v. Tumbridge, 2M. & W. 223;
and see Walton v. Mascall, 18 M. &
W. 452.

(A) Maltby v. Murrells, 5H. &N.
813; 29 L. J. Ex. 377; Norton v.
Ellam, 2 M. & W. 461.

“
Promise
conditional
upon notice.

338 CHAP, HI. THE MATTER OF CONTRACTS.

ments are made specially payable at a particular place only,
presentment for payment at that place is necessary (a).

If a bond is conditioned for the payment of a sum of
money on demand, a demand must be made before the bond
is forfeited and an action can be brought upon it (Db) ; but on
a bond conditioned for payment of money, without any sti-
pulation for a demand, a demand is not required, and the
condition is broken by non-payment, although no demand is
made (¢).

If a warrant of attorney be given for payment of money
on demand, an actual demand is necessary ; and proceed-
ings taken under it-without such demand will be set aside (d).
A person having executed a warrant of attorney to secure
the re-transfer, upon demand, of stock lent to him, became
insane ; it was held that a demand made to him in that state
was ineffectual (e).

A surety is not entitled to a demand for payment upon
the default of the debtor, unless he has expressly stipulated
for it (f) ; and in order to charge a surety upon a contract of
guarantee a request to the debtor to pay is not necessary,
where it is not necessary to charge the debtor (4).

If a factor, receiving goods for sale on commission, con-
tracts to account on demand, a demand of an account is ne-
cessary in order to charge him in an action for not account-

ing (h).

A contract is sometimes made conditional upon notice of
some matter being given; and then notice must be given
accordingly, in order to render the promise absolute, and
must be alleged and proved in an action brought upon it (7).
A party contracting to do an act upon the happening of
some event is not, in general, entitled to notice of that event

(a) Byles on Bills, 8th ed. 196,198. 8.9; Hitchcock v. Humfrey, 5 M. &

(b) Carter v. Ring, 3 Camp. 459. G. 559.

(c) Gibbs v. Southam, 5 B. & Ad. (g) Rede v. Farr, 6 M. & 8.121;
911. Lilley vy. Hewitt, 11 Price, 494; War-

(d) Nicholl v. Bromley,2 B. & B. — rington v. Furbor, 8 East, 242; Wal-
464; Abbott v. Greenwood, 2Jur.989. ton y. Mascall, 13 M. & W. 452.

(e) Capper v. Dando, 2 A. & HB. . (h) Topham vy. Braddick, 1 Taunt,
q 2

(f) Sicklemorev. Thistleton,6M.& (i) 1 Chit. Pl. 7th ed. 387,
‘SECT. II. THE PROMISE. 339

as a condition precedent to his liability, unless he has ex-
pressly stipulated for it; but in some cases it is necessarily
implied from the nature of the transaction that notice should
be given, although not expressly stipulated for (a).

The general rule as to the cases where notice is impliedly
required has been laid down as follows :—“ That where a
party contracts to do a certain thing in a certain specific
event with which he can make himself acquainted, he is not
entitled to any notice, unless he stipulates for it; but when
it is an event which lies within the peculiar knowledge of the
opposite party, then notice ought to be given him” (bj). It
is also laid down as a rule that if the matter does not lie
more properly in the knowledge of one of the parties than
the other, notice is not requisite (¢).

A buyer promised to pay for barley as much as the seller
sold it for to any other man ; the seller was held bound to
give notice before he could call upon the buyer to pay, be-
cause the person to whom the barley was to be sold was
altogether at the option of the seller, who might sell it to
whom he pleased (d). The defendant covenanted not to do
anything whereby an insurance, to be effected on his life by
the plaintiff at any office which the latter should choose,
should be avoided or prejudiced ; it was held that the de-
fendant was not bound by this covenant until the plaintiff
had given him notice that he had chosen an office, and had.
effected a policy (ec). By a contract for the sale of land the
vendor covenanted that he would deduce a good title and pro-
duce the deeds to verify it on a certain day at one of three
places mentioned ; it was held to be incumbent on him to
give notice to the vendee at which of the three places he would
be ready to produce his title, and that, not having done so,
he was liable for a breach of covenant in not producing the
deeds, notwithstanding the non-attendance of the vendee (f).

(a) Per Parke, B., Vysev. Wake- Ex. 359, 362.

field, 6M. & W. 442, 453. (d) Haule v. Hemyng, Cro. Jac. 422,
(b) Per Lord Abinger, C.B., Vyse cited 6 M.& W. 454.

v. Wakefield, 6 M. & W. 442, 452. (°) Vyse v. Wakefield, 6 M. & W.
(c) 1 Wms. Saund. 117 a, n. (2); 2 442

ib. 62 a; 1 Chit. Pl. 7th ed. 337 ; ) mages y. Lloyd, 5 B. &

per Parke, B., Dawson v. Wrench, 3 Ad.
a2
Promise
conditional
upon no-
tice,

340 CHAP. III. THE MATTER OF CONTRACTS.

On a policy of insurance on a ship it is held not to
be a condition precedent to the liability of the under-
writer that the insured should give him notice of the
loss ; whether or no the ship was damaged by storms being
a fact as much within the knowledge of one party as the
other (a).

“If a man is bound by obligations or covenants or pro-
mises to do a thing on the performance of an act by a
stranger notice need not be alleged, for it lies in the defend-
ant’s knowledge as much as the plaintiff’s and he ought to
take notice at his peril ’’(b). Ifa man be bound to another
to indemnify him against the acts of a third person, no no-
tice is necessary to be given by the obligee to the obligor of
those acts (c). Soit is held, with respect to guarantees, that
no notice is necessary (d) ; unless the surety has stipulated
expressly for it (e).

Notice of an award is not a condition precedent to the ha-
bility to perform it, because both parties may equally take
notice of it; if, however, it be provided that the award
should be notified to the parties, it is no award until notice
be given (f). Notice is necessary in order to proceed
against a party by attachment for contempt in not performing
an award (9).

Upon a bill of exchange accepted payable to the drawer
or his order, and upon a promissory note made payable to
the payee or his order, no notice of indorsement need be
given to the acceptor or maker; he is bound himself to find
out the holder and pay him when the instrument is due (h).
But the parties secondarily liable, as the drawer or indorser
of a bill of exchange, or the indorser of a promissory note,
are entitled to have the instrument duly presented for pay-
ment, and to receive notice of dishonour, which is a matter
peculiarly within the knowledge of the holder (i); and the

(a) Dawson vy. Wrench, 3 Ex. 359. &8.9.
(6) 2 Wms. Saund. 62a; and cases (f) 2 Wms. Saund. 62, n (4).

there cited. (g) Ib. 62 a, n (e).
(c) Cutler vy. Southern, 1 Wms. (h) Reynolds y. Davies, 1B. & P.
Saund. 115. 625 ; Bradbury v. Emans, 5 M. & W.

(2) Per Parke, B., Dawson v. 595; Price v. Price, 16 M. & W. 282,
Wrench, 3 Ex. 359, 362; Hitchcock y. 242.
Humfrey, 5 M. & G. 559. (@) 2 Wms. Saund. 62 a, n (d) ;
(e) Sicklemore vy. Thistleton, 6 M. Byles on Bills, 8th ed. 186, 251.
SECT. II. THE PROMISE. 341

notice of dishonour must be given within a reasonable time,
which depends upon the circumstances of each case (a).

Questions of construction often arise as to whether the Construc-
language of a contract imports a condition precedent to the te"
lability or not, of which the following cases may be cited as et

- 1008
examples = precedent.

A contract for the sale of goods, “on arrival by a certain

ship,”’ is held to be conditional upon the arrival of the goods
on board the ship, so that if the ship arrives without the
goods, or if the ship is wrecked, the seller is not bound (8).
So, upon a contract for the sale of goods, ‘to arrive by a
certain ship,” the arrival of the goods in the ship is a con-
dition precedent (c). Such a contract does not amount to a
warranty on the part of the seller that the goods should arrive
if the vessel arrives, but to a contract for the sale of goods at
a future period subject to the double condition of the arrival
of the vessel, with the specific cargo on board (d). But upon
a contract for the sale of goods to be delivered “on the
safe arrival of a certain ship,” it was held that the arrival
of the goods was not a condition precedent as the arrival of
the ship was; and the contract to deliver became absolute
upon the arrival of the ship, although without the goods on
board (e). A contract of sale of goods to arrive by a ship
to be named “upon shipment of the goods,” or “ by the
next mail,” is conditional, as to the liability of the buyer to
accept the goods, upon the naming of the ship according to
the contract (f).

In a contract for the sale of cotton from ships arriving at
a port, the expression, “the said cotton to be taken from
the quay,” was construed to be a stipulation for the seller’s
benefit only, compelling the purchasers, if required, to take
the cotton from the quay, but not a stipulation as to the

(a) Darbishire vy. Parker, 6 Hast, (e) Hale vy. Rawson, 4 CO. BLN.
3; Byles on Bills, 8th ed. 261. 8. 85; 27 L. J. C. P. 189; and see

(b) Boyd v. Siffkin, 2 Camp. 326;  Gorrissen v. Perrin, 2C. B. N.S. 681;
see Idle y. Thornion, 3 Camp. 274. 27 L. J.C. P. 29.

(ce) Lovatt vy. Hamilton, 5 M. & (f) Graves v. Legge, 9 Ex. 709;
W. 639; Johnson v. Macdonald,9M. 11 Ex. 642; 23 L. J. Ex. 228; 267d.
& W. 600. 316 ; Gilkes v. Leonino, 4C.B.N. 8.

(a) Ib. 485.
Coustrue-
tion of con-
tracts as to
conditions
precedent.

342

CHAP. Ill, THE MATTER OF CONTRACYS.

place of delivery forming a condition precedent to the pur-
chaser’s liability to accept the cotton (a).

A stipulation in a charterparty that the vessel shall sail
on or before an appointed day, is held, in general, to be a
condition precedent to the liability of the charterer to per-
form the charterparty (6); so, a stipulation that the ship
shall be ready on or before an appointed day («). But the
stipulation that the ship shall sail with convenient speed, or
within a reasonable time, or direct to the port of loading, is
held not to be a condition precedent, as to the time of sail-
ing (d) ; though, if by reason of a breach of such stipulation
the object of the voyage would be wholly frustrated, the
charterer might be excused from the performance of the
charterparty on his part (e).

In a charterparty the ship was described as “ now at sea
having sailed three weeks ago ;” it was held that the liability
of the charterer to load was conditional upon the truth of
that statement (f). So, the description in a charterparty
of the ship as “ now in the port of Amsterdam” was held to
constitute a condition precedent to the obligation of the
charterer (q).

The description of the ship in a charterparty as being Al
is a warranty of the ship being of that class at Lloyd’s, and
constitutes a condition precedent to the liability of the char-
terer to load (A); but such description only warrants the
class at the time of making the charterparty, and does not
warrant the continuance of the class (i). The representa-
tion that the ship is tight, staunch, and strong, is not a
condition precedent (j).

Upon a covenant in a lease to expend a sum of money in

204, 205.
(f) Ollive v. Booker, 1 Ex. 416.
(g) Behn v. Buraess, 1 B. & 8.
877; 3 /b. 751; 31 L. J. Q. B. 73;
32 7b. 204, explaining Déimech v. Cor-
lett, 12 Moore, P. C. C. 199.

(a) Neill v. Whitworth, 18 C.B.N.
8. 485; 34 .L. J.C. P. 155.

(b) Glaholm v. Hays, 2 M. & G.
257; Crookewit v. Fletcher, 1H. &
N. 893; 26L. J. Ex. 153.

(c) Oliver v. Fielden, 4 Ex. 135;
Seeger v. Duthie, 8 C. B. N.S. 45.

(d) Larrabochia v. Hickie,1 H. &
N. 183; 26 L. J. Ex. 26 ; ‘Andrew v.
Chapple, 35 L. J. C. P. 281; and see
Freemanv. Taylor, 8 Bing. 124.

(e) Ib.; and see Behn v. Burness,
3B. &8. 751, 758; 32 L. J. Q. B.

(h) Ollive v. Booker, 1 Ex. 416;
and see Routh v. Macmillan, 2H. &
C. 750; 33 L. J. Ex. 38.

() Hurst v. Usborne, 18 C. B. 144;
25 L. J. C. P. 209. -

(J) TLarrabochia vy. Hickie, 1 H. &
N. 183; 26 L. J. Ex. 26.
SECT. Il. THE PROMISE. 343

repairs under the direction and with the approbation of a Construe-
surveyor to be appointed by the lessor, the appointment of {ion of en-
the surveyor is a condition precedent to the liability to re- conditions
‘ - a precedent.
pair (a). So, upon a covenant in a lease for the lessee to
repair, the lessor allowing and assigning timber for that
purpose, the assigning of the timber by the lessor is a con-
dition precedent to the liability of the lessee (b). An agree-
ment was made by a tenant’ to keep certain premises in re-
pair, the same being first put into repair by the landlord; it
was held that the repair of the whole by the landlord was a
condition precedent which he must perform before he could
recover for non-repair of any part of the premises (c). By a
written agreement the plaintiff undertook to do certain re-
pairs to a house and “to complete the work necessary by
the 14th June next,” and the defendant, ‘‘ in consideration
of these conditions being fulfilled,” agreed to take the house
for three years, the rent to begin from Midsummer next; it
was held that the completion of the whole work by the
plaintiff in the time specified was a condition precedent to
the liability of the defendant to take the house (d).
A lease contained a covenant by the lessor, that if the
lessee should be desirous at the expiration of the term to -
purchase the premises, and should give to the lessor six
months’ notice of such desire, and should pay to him £2000,
the lessor would sell and convey the premises to the lessee ;
the lessee gave the notice, but did not pay the £2000 ; it
was held that the payment of the £2000 was a condition
precedent to the right of purchase, and the money not having
been paid, he was not entitled to specific performange (e).
By an indenture the plaintiff covenanted that he would
“forthwith” do certain things on his part, and the defend-
ant covenanted to make certain payments upon the perform-
ance of those things, and it was agreed that to secure the
true performance of the covenants the plaintiff and the de-
fendant should within ten days from the execution of the

(a) Coombe v. Greene,11M.& W. and see Cannock v. Jones, 3 Ex. 233.

480. (d) Tidey v. Mollett,16C.B.N.S.
(b) Thomas v. Cadwallader, Willes,,, 298; 33 L. J. C. PB. 235.
496. (e) Weston y. Collins, 384 L. J. C.

(c) Neale v. Ratcliff, 15Q.B. 916; 353.
Dependent
nd inde-

pendent

promises.

344, CHAP. Il]. THE MATTER OF CONTRACTS.

indenture give to each other bonds in a penal sum; it was
held that the giving the bonds was a condition precedent to
the right to performance on either side, and that the term
“ forthwith”? must be construed as subject to such condition
precedent (a).

The defendant agreed to grant the plaintiffs a lease of
certain premises for five years, during which the plaintiffs
were to expend money in certain buildings, and the defendant
agreed to repay to the plaintiffs the money so expended at
the expiration of the term; the plaintiffs occupied during
the five years and expended the money in the manner
agreed upon, but no lease was granted ; it was held that the
granting of the lease by the defendant was not a condition
precedent to his liability to repay the money, Crompton, J.,
saying that it would require strong words to render an act
to be done by the defendant a condition precedent to his
hability (2).

In contracts containing executory considerations, that,is
to say, in which a promise on the one side is given in con-
sideration of a promise on the other, the mere promise, and
not the performance of it, constitutes the consideration
strictly so called; and the obligation of the one promise
may be quite independent of the performance of the other (c¢).
But when the matter of such mutual promises is examined,

-it may appear, upon the correct construction of their terms,

that the obligation of the one promise is made expressly or
impliedly conditional upon the due performance of the other ;
and then the performance of the promise, constituting the
executory consideration, is a condition precedent to the ha-
bility to perform the other promise: in the latter case the
mutual promises are called dependent, and in the former
they are called independent.

In the case of Jones v. Burkley, Lord Mansfield, C.J., in
delivering the judgment of the Court, expressed himself to
the following effect :—‘‘ There are three kinds of covenants :
1. Such as are called mutual and independent, where either

(a) Roberts v. Brett, 6 C. B.N.S.  (b) Bowes v. Croll, 6 E. & B. 235.
611; 20 i. 148; 341. 3.0. P. 241. (c) See ante, p. 10.
SECT. Il. THE PROMISE. 345

party may recover damages from the other for the injury
he may have received by a breach of the covenants in his
favour, and where it is no excuse for the defendant, to al-
lege a breach of the covenants on the part of the plaintiff.
2. There are covenants which are conditions and dependent,
in which the performance of one depends on the prior per-
formance of another, and, therefore, till this prior condition
is performed, the other party is not liable to an action on
his covenant. 3. There is also a third sort of covenants,
which are mutual conditions to be performed at the same
time ; and, in these, if one party was ready, and offered, to
perform his part, and the other neglected, or refused, to
perform his, he who was ready and offered has fulfilled his
engagement, and may maintain an action for the default of
the other; though it is not certain that either is obliged to
do the first act.” His Lordship then proceeded to say, “‘ that
the dependence or independence of covenants was to be col-
lected from the evident sense and meaning of the parties,
and that, however transposed they might be in the deed,
their precedency must depend on the order of time in which
the intent of the transaction requires their performance ’’(«).

Tt has also been laid down as a rule of construction that
«Where from a consideration of the whole instrument
it is clear that the one party relied upon his remedy and not
upon the performance of the condition by the other, such
performance is not a condition precedent. On the other hand,
where it is clear that the intention was to rely on the per-
formance of the condition, and not on the remedy, the per-
formance is a condition precedent”? (6).

The following rules of construction, as to the intention of putes of
the parties, have been deduced from the times appointed Coy
the performance of the respective covenants or promises. from the
“Tf a day be appointed for payment of money, or part of it, nee ie
or for doing any other act, and the day is to happen, or may sr i
happen, before the thing which is the consideration of the
money, or other act, is to be performed, an action may be

(a) Jones v. Barkley, 2 Doug. 38 Bing. N. C. 355, 368.
684, 690; and see Pordage v. Cole, (b) Per Jervis, O.J., Roberts v.
1 Wms. Saund. 3206, and the autho- Brett, 25 L. J.C. P. 280, 286; 18 C.
rities there cited; Stavers v. Curling, B. B61, 573.
Rules of
construc-
tion of mu-
tual pro-
mises.

346 CONTRACTS.

brought for the money, or for not doing such other act be-
fore performance; for it appears that the party relied upon
his remedy and did not intend to make ‘the performance a
condition precedent ; and so it is where no time is fixed for
performance of that which is the consideration of the
money or other act ”’ (a).—‘‘ But when a day is appointed for
the payment of money, etc., and the day is to happen after
the thing which is the consideration of the money, etc., is
to be performed, no action can be maintained for the money,
etc., before performance” (6).—‘ Where two acts are to be
done at the same time, as where A. covenants to convey an
estate to B. on such a day, and in consideration thereof B.
covenants to pay A. a sum of money on the same day,
neither can maintain an action without showing performance
of or an offer to perform his part, though it is not certain
which of them is obliged to do the first act; and this par-
ticularly applies to all cases of sales ”’ (c).

Accordingly, in contracts for the sale of land in which the
conveyance of the estate and the payment of the money are
to be concurrent acts, the readiness and willingness of the
vendor to convey the estate is a condition precedent to the
liability of the purchaser to pay the price; and it is a good
plea to an action for the price that the plaintiff was not
ready and willing to convey (d). But if im carrying out the
contract the purchaser gives a bill or note for the price, he
cannot afterwards refuse to pay it because the vendor re-
fuses to convey the estate ; he is left to his remedy upon the
contract, unless the contract has been altogether rescinded,
so that there is a total failure of consideration for the bill (e).
So, in contracts for the sale of land, unless expressly stipu-
lated to the contrary, it-is for the purchaser to tender a con-
veyance ; and if he has omitted to do so without sufficient

CHAP. II. THE MATTER OF

(a) Pordage v. Cole, 1 Wms. Saund.
320 b. rule 1; and authorities there
cited ; Campbell v. Jones, 6 T. R.
570; Dicker v. Jackson, 6 C. B.108 ;
Judson vy. Bowden, 1 Ex. 162.

(2) Pordage vy. Cole, 1 Wws.
Saund. 320 c. rule 2, and the authori-
ties there cited; Rolt v. Cozens, 18
C. B. 673; 25 L. J. C. P. 254.

(c) Pordage v. Cole, 1 Wms. Saund.

320 e. rule 5; and the authorities
there cited ; Peeters v. Opie, 2 Wms.
Saund. 352 (8); Doogood v. Rose, 9
C. B. 182; Giles v. Giles, 9 Q. B.
164.

(d) Marsden y. Moore, 4 H. & N.
500; Poole v. Hill,6 M. & W. 835.

(e) Moggridge v. Jones, 14 Fast,
486 ; Spiller v. Westlake, 2B. & Ad.
155.
SECT. 1f. THE PROMISE. 347

excuse, he cannot maintain an action against the vendor for
not completing (a).

In executory contracts for the sale of goods, in general,
the buyer, claiming the delivery of the goods, must show
that he is ready to receive and pay for them (b). So, the
seller must show that he was ready and willing to deliver the
goods, as a condition precedent to his charging the buyer
with not accepting and paying for them (c). It is not neces-
sary that the buyer should actually tender the money (d), or
that the seller should actually tender the goods (¢), in order
to satisfy the condition of readiness and willingness to pay
for, or deliver the goods. By a written agreement the de-
fendant agreed to deliver straw to the plaintiff at the rate of
three loads in a fortnight until a stated time, and the plaintiff
agreed to pay to the defendant a certain sum per load “ for
each load of straw so delivered’’ during the time; this
agreement was construed to mean that each load was to be
paid for on delivery, and, on the plaintiff refusing so to pay
the defendant was held not bound to deliver (/).

A further rule of construction is derived from the con- Rule of
nexion of the matter of the mutual covenants or promises, (oiU™
as being wholly or in part the consideration of each other. meester
Thus, the rule is laid down that “‘ where mutual covenants of mutual
go to the whole consideration on both sides, they are mutual Premises:
conditions, the one precedent to the other; but where a
covenant goes only to a part of the consideration, there a
remedy lies on the covenant to recover damages for the
breach of it ; but it is not a condition precedent” (g). By an
indenture of apprenticeship the apprentice was placed with
an auctioneer, appraiser, and corn-factor to serve him and to
learn his business; afterwards the master having given up
the business of corn-factor the apprentice left him; in an
action by the master for the desertion of the apprentice, it

(a) Poole v. Hil/,6 M.& W.855, 942; Boyd v. Lett,1 C. B. 222.

841; and see Doogood vy. Rose, 9 C. (d) Rawson vy. Johnson, 1 Fast,
B. 182. 208.

(b) Callonel v. Briggs, 1 Salk. 112 ; (e) Jackson v. Allaway; Boyd v.
Mortonv. Lamb, 7 T.R.125; Water- Lett, supra.
house v. Skinner,2 B. & P. 447; Raw- (f) Withers v. Reynolds, 2 B. &
son v. Johnson, 1 East, 203; Withers Ad. 882.
y. Reynolds, 2 B. & Ad. 882. (g) Pordage v. Cole, 1 Saund. 820

(c) Jackson vy. Allaway,6M.&G. — ¢, rules 3 & 4, and cases there cited ;
Rules of
construc-

348 CHAP. II]. THE MATTER OF CONTRACTS.

was held that the exercise and teaching of the three trades

tion of mu. Was an entire and indivisible consideration for the service of

tual pro-
mises.

the apprentice, and therefore, a condition precedent to his
liability to serve, and that the relinquishment of one of the
trades was a good answer to the action (a). So, under an
indenture of apprenticeship, the willingness of the appren-
tice to be taught is a condition precedent to the liability of
the master on his covenant to teach (6). By a written
agreement the plaintiffagreed to sell goods to the defendant,
to be paid for by taking goods of the defendant at a certain
price, and by drawing for the balance at three months ; it
was held that the sales were mutually dependent, so that the
plaintiff could not sue for the non-delivery by the defendant
to him, without averring and proving a delivery or tender
by him to the defendant (c). An agreement was made that
the defendant should sell to the plaintiff certain land with
the coal mines under it at a certain price, and that the defen-
dant should buy of the plaintiff all coal that he might from
time to time require at the market price; it was held that
these were dependent terms, and that the plaintiff could not
sue the defendant for not buying coal, without being ready
and willing to purchase the land (d).

By a charterparty it was agreed that the master of the
ship should load a complete cargo of certain articles, and
deliver the same on being paid freight at certain stipulated
rates ; it was held that the delivery of a complete cargo was
not a condition precedent to the right of the master to re-
cover freight at the stipulated rates for such cargo as he had
loaded and delivered, and that the freighter was left to his
remedy in damages for not loading a full cargo (e). The
plaintiffs, a gas company, contracted for the supply of gas
to the public lamps of the defendants’ parish, and covenanted

_to light the lamps at a certain time and continue them

Boone v. Eyre, 1 H. Bl. 273; Camp-  C. 680; Rayment v. Minton, 35 L. J.

bell v. Jones, 6 T. R. 573; Ritchiev. Ex. 153.

Atkinson, 10 East, 295, 306 ; Stavers (ce) Atkinson vy. Smith, 14M. & W.

vy. Curling, 3 Bing. N. ©. 355, 368; 695.

Ellen vy. Topp, 6 Ex, 424, 441; and (d) Bankart v. Bowers, L. R. 1 C.

see Hoare vy. Rennie, 29 L. J. Ex. P. 484.

73 ; Frankliny. Miller, 4 A. & E. 599. (e) Ritchie v. Atkinson, 10 East,
(a) Ellen vy. Topp, 6 Ex. 424. 295.

(b ) Hughes v. Humphreys, 6 B. &
SECT. II. THE PROMISE. 349

lighted during a certain time, and that the gas should be of
a certain quality and a certain quantity ; and the defendants
covenanted to pay a certain sum per annum for each lamp so
lighted ; it was held that the complete performance of all the
covenants of the plaintiffs was not a condition precedent to
their right to be paid for gas supplied (a).

But where the covenants or promises, of which one is the
consideration for the other, have in their subject matter no
connexion to one another, so that the damages for the breach
of the one may be quite different from the damages for the
breach of the other, the performance of the one is not a con-
dition precedent to the performance of the other (b). The
plaintiff guaranteed to the defendant that certain bills of
exchange should be paid by the acceptors at maturity, in
consideration of which the defendant guaranteed to the plain-
tiff that certain goods sold by the plaintiff should be paid for
by the purchaser; it was decided that the promises in the
contract were independent promises, and the difference in the
damages for a breach of the two promises was relied on show-
ing such intention in the parties (c).

The above rules are only indicative of the intention of the
parties generally, and in any case give way to a contrary
intention clearly expressed. The parties to a contract may
undoubtedly, if they think proper, agree that any matter shall
be a condition precedent, “‘and if words are used in the con-
tract so precise, express, and strong that such intention and
such intention only, is compatible with the terms employed,
however inconsistent it may be with general principles of
reasoning’, a Court can only give effect to such declared inten-
tion of the parties” (d). The defendant covenanted that, “the
plaintiff well and truly performing all and everything on his
part to be performed,” he the defendant would perform his
covenant ; it was held that though the performance of the
plaintiff’s covenants was made a condition precedent to the
defendant’s liability according to the strict technical frame

(a) London Gas Light Co. v. Vestry (ce) Christie v. Borelly, supra,
of Chelsea, 8 C. B. N.8. 215. (2) See Stavers v. Curling, 3 Bing.

(0) Thomas v. Cadwallader, Willes, N. C. 355, 369; per Williams, J.,
496, 499; Christie v. Borelly,7 0.B. Christie v. Borelly, 7 C. B. N.S. 561,
N.S. 561; 29 L. J. C. P. 163, 567.

Rules of
construc-
tion of mu-
ae. ae
350 CHAP, II]. THE MATTER OF CONTRACTS.

of the agreement, yet the words used might give way to an
obvious intention to the contrary, which was allowed to pre-
vail (a). So, where the defendant’s covenant was made “ on
the performance of the terms and conditions on the part of
the plaintiff,” the intention of the parties, otherwise expressed,
that the performance of the plaintiff should not be a condition
precedent, was allowed to prevail (b).

Perform- Conditions precedent must be performed and satisfied in

oe “ order to render the conditional promise or liability absolute,

precedent. and to entitle the promisee to the performance of such pro-
mise (c). A partial performance of a condition precedent,
in general, is not sufficient to render the promise absolute.
Thus, where the plaintiff let to the defendant a messuage
with outbuildings belonging thereto, and the defendant
agreed to keep in repair the said messuage and buildings,
on condition of the same being first put into repair by the
plaintiff, and the plaintiff, having put part only of the pre-
mises in repair, sued the defendant for non-repair, it was
held that he was not entitled to recover, even for the non-
repair of the part which he had put in repair (d).

Partialper- But after the plaintiff has performed his contract in a

formance of substantial part and the defendant has accepted and had the

precedent. benefit of such part performance, the defendant may thereby
be precluded from relying upon the non-performance of the
residue as a ground for refusing performance on his part.
In such case he must perform the contract on his part, and
is left to his remedy by action for damages in respect of the
defective performance on the part of the plaintiff (e). So,
where the plaintiff is ready and willing to perform his part of
the contract substantially, but fails in a small matter, or to a
small extent, which does not go to the root of the considera-
tion, the defendant may nevertheless be bound to perform
the contract on his part. The plaintiff contracted to supply

(a) Boone v. Eyre, 1H. BL 273. Graves v. Legg, 9 Ex. 709, 717; 23
(b) Stavers v. Curling, 3 Bing. N.  L. J. Ex. 228, 231; Behn v. Burness,
C. 355. 3B. & 8.751, 755; 32 L. J. Q. B.
(ce) See post, Chap. IV, Sect. III, 204, 206; Whitey. Beeton,7 H.&N.
“ Performance.” 42; 80 L. J. Ex. 373; Pust v. Dowie,

(d) Neale v. Ratcliff, 15 Q. B.$16. 5 B. & 8. 20, 33; 32 L. J. Q. B.179,
(e) Ellen y. Topp, 6 Tex, 424,441; 84 2b. 127.
SECT. II. THE PROMISE. 351

as many cargoes of coal as could be carried by a ship of
the defendant to a certain place during nine months, and
the defendant contracted to send the vessel and to purchase
the coal; it was held that the defendant was not entitled to
leave off sending the ship for cargoes, merely because the
plaintiff had sent some coal which was not equal to sample,
or because he had delayed the vessel in loading (a). The de-
fendant bought of the plaintiffs a large quantity of Swedish
iron, to be shipped from Sweden in the months of June,
July, August, and September, in about equal portions each
month, and the plaintiffs shipped only a small portion in
June, not being nearly the portion stipulated for in that
month; it was held that the defendant was not bound to
accept the smaller quantity, or any subsequent quantity ten-
dered, as the plaintiff had substantially failed to perform his
part of the contract, which formed a condition- precedent to
the contract of the defendant (b).

The performance of a condition precedent may be dis- Excuses of
pensed with or excused, so as to render the conditional Ce
lability absolute without performance. Where the perfor- se
mance of the contract by the plaintiff forms a condition *
precedent to the liability of the defendant, and the plaintiff
is ready and offers to perform his part, but the defendant
refuses to accept it, the liability of the defendant becomes
absolute without performance (c). So, if the defendant by
his own neglect or default prevents the performance of a
condition precedent to his liability, it may be equivalent to
performance in rendering his lability absolute (d).

If a man binds himself to do a certain act which he after-
wards renders himself unable to perform, he thereby dis-
penses with the performance of conditions precedent to the
act which he has so rendered himself unable to perform (e).

In Main’s case (f) the defendant leased land to the plaintiff,

(a) Jonassohn v. Young, 4 B.& 8.  v. Ambergate Ry. Co., 17 Q. B. 127;

296; 32 L.J.Q. B. 385. 20 L. J. Q. B. 460.
() Hoare v. Rennie, 5 H.& N.19; (d) Hotham vy. East India Co., 1
29 L. J. Ex. 73. T. R. 638; and see Pontifex v. Wil-
(e) Jones v. Barkley, 2 Doug. 684;  kinson, 1 C, B. 75.
and see Smith v. Wilson, 8 East, 437 ; (e) Sands v. Clarke,8 C.B.751, 762.

Laird v. Pim, 7 M. & W. 474; Cort (f) 5 Co. Rep. 20 d.
Excuses of
perform-
ance of con-
ditions pre-
cedent.

Pleading
perform-
ance and
excuse of
conditions
precedent.

352 CHAP. TI]. THE MATTER OF CONTRACTS.

and covenanted that at any time upon surrender of the lease
he would grant a new one, and afterwards levied a fine of the
land to a stranger; it was held that although by the words
of the indenture the plaintiff ought to do the first act, that
is to say, to make the surrender, yet, when the defendant
disabled himself from taking the surrender and making a
new lease according to the covenant, he broke his covenant
without any surrender made. In the same case it was
resolved, “if a man seised of lands in fee covenants to en-
feoff J. S. of them upon request, and afterwards he makes a
feoffment in fee of the said lands, J. S. shall have an action
of covenant without request ’’(a). Upon a sale of hay by the
defendant to the plaintiff, the defendant promised to deliver
it to the plaintiff and suffer him to take it away as he wanted
it, when requested; the defendant, having afterwards sold
and disposed of the hay to other persons, was held hable
upon his contract with the plaintiff without any request for
the hay being made (b). If a man promises to marry a
woman and then marries another, by so disabling himself
from performing his promise, he dispenses with a request to
perform it, or the lapse of an appointed or reasonable time
for performing it, or any other matters which might other-
wise be conditions precedent to his liability on his pro-
mise (c).

A notification by the defendant that he will not perform
his contract, made before the time for performance arrives,
is not alone binding upon him so that he cannot withdraw
it; but it operates, until withdrawn, to dispense with the
performance of conditions precedent by the plaintiff (d).

Before the receut amendments in Common Law Procedure
ib was necessary for a party asserting any right in pleading
to aver with certainty and with particularity the performance
and fulfilment of all conditions precedent to the alleged right:
thus, the plaintiff in an action on a contract was obliged to

(a) Main’s case, 5 Co. 20 6. (d) Ripley v. M'Clure, 4 Ex. 345;

(6) Bowdell vy. Parsons, 10 Fast, Cort v. Ambergate Ry. Co..17 Q. B.
359; and see Amory v. Brodrick, 5 127; 20 L. J. Q. B. 460; and see
B. & Ald. 7712, Fitt v. Cassanet, 4 M. & G. 898; and

(ce) Short v. Stone, 8 Q. B. 358; — see post, Chap. TV, Sect. IV, “ Breach
Caines v. Smith, 15 M. & W. 189. of Contract.”
SECT. II. THE PROMISE. 353

aver with particularity the happening of every matter requi-
site to shew that the promise charged had become absolute
and the defendant liable for the breach of it ; and the defen-
dant, almost as a matter of course, denied every allegation of
performance contained in the declaration. This practice
necessitated a prolixity and particularity in pleading which
in many cases was unnecessary, and tended to raise ques-
tions, as to the materiality and performance of conditions,
foreign to the real question in dispute between the parties (a).

By the C. L. P. Act, 1852, s. 57, it is enacted that “it
shall be lawful for the plaintiff or defendant in any action to
aver performance of conditions precedent generally, and the
opposite party shall not deny such averment generally, but
shall specify in his pleading the condition or conditions pre-
cedent the performance of which he intends to contest.”
Under the practice, as thus amended, there is no longer any
necessity to particularize in the first instance what are con-
ditions precedent and to aver the performance of them spe-
cifically ; but it is left for the opposite party to meet the
general averment of performance by a specific denial of the
performance of such conditions as he deems material to the
alleged right and relies upon in answer to it. The rest,
which are not called in question, are left unnoticed.

Where a condition precedent has not been performed and
the party relies upon some matter of excuse for the non-
performance, he cannot, in respect of that condition, avail
himself of the general averment of performance ; for such
averment, to the extent of the condition in question, would
not be true; he must state the matter of excuse in the first
instance (b). The excuses of conditions cannot be averred
in a general form similar to that allowed for performance,
but must be averred with particularity (c).

The promise may be to perform a single act, or all of Alternative
several acts conjunctively, or one or other of several acts promises.
alternatively ; in the latter case, the question may arise

(a) See First Report of Common gate Ry. Co., 17 Q. B. 127; 20 L. J.
Law Commissioners, p. 25. Q. B. 460.
(0) Co. Lit. 304 a; Manby v. Cre- (c) London Dock Co. v. Sinnott, 8
monini, 6 Ex. 808; Cort v. Amber- Th. & B. 3447.
2A
Right of
election of
alternative.

354 CHAP. III. THE MATTER OF CONTRACTS.

whether the choice of the act to be performed is reserved to
the promiser or to the promisee. This is a question of con-
struction depending upon the intention expressed in the
language of the contract.

Upon this question Lord Coke lays down as follows :—
“In case an election be given of two several things, al-
ways he, which is the first agent, and which ought to do the
first act, shall have the election. As if a man granteth a
rent of twenty shillings or a robe to one and to his heirs, the
grantor shall have the election; for he is the first agent, by
payment of the one, or delivery of the other. So if a man
maketh a lease, rendering a rent or a robe, the lessee shall
have the election causd qué supra. But if I give unto you
one of my horses in my stable, there you shall have the
election; for you shall be the first agent by taking or
seizure of one of them. And if one grant to another twenty
loads of hazel or twenty loads of maple to be taken in his
wood of D., there the grantee shall have election; for he
ought to do the first act, scil. to fell and take the same” (a).
And it has been laid down as a general rule, that “ the per-
son who is to perform one of two things in the alternative
has the right to elect” (b). But it seems that such rules are
not of universal application; they are laid down as according
with the intention of the parties in most instances, but must
give way to an expression of intention to the contrary.

The following cases may be cited as examples of the con-
struction of contracts with alternative promises :—In the
case of Greningham v. Ewer (c) a bond was conditioned for
the obligor to deliver to the obligee certain securities, or to
execute such a release of them as should be devised by the
obligee before Michaelmas; and it was held that the obligor
had the option to do either, and that the obligee was bound
to tender the release in order to give him the option. In
the case of Bassett v. Bassett (cd) a bond was conditioned to
grant an annuity of £20 to the obligee within six months of
the death of A. if the obligee should require the same, or to
pay the obligee a sum of £300; it was held on the authority

(a) Co, Lit. 145 a. (ec) Cro. Eliz. 896, 539.
(2) Layton y. Pearce, 1 Doug. 15. (d) 1 Mod. 264; 2 2b. 200.
SECT. Il. THE PROMISE. 355

of Greningham v. Ewer that the obligor had the option as to
which he would perform and that the obligee was bound to
demand the annuity, and not having done so the obligor was
discharged. In Fordley’s case (a) a bond was conditioned
for the obligor, at a certain time and place, “to pay £20 or
deliver ten kine at the then choice of the obligee;” it was
held that the obligor was bound to tender both at the time
and place, for the obligee to make his choice. In Chippen-
dale v. Thurston (b), a borrower of money agreed to reinvest
it in Consols. in the name of the lender or to repay it in
Bank of England notes, on the lender giving him six
months’ notice in writing to that effect; Parke, J., decided
that whether the stock should be replaced, or the loan be
repaid in money was in the option of the lender.

In some cases the alternative character of the promise is
ouly apparent, existing in form of words only and not in
substance. Thus, where an award directed that a sum of
money should be paid or secured to be paid by the defen-
dant to the plaintiff, the construction was held to be that
the defendant should pay the money unless the plaintiff
should please to accept security instead; an alternative
which would have been open without any express direction
from the arbitrator (c). Of this character are those con-
tracts which stipulate that the party shall do a certain act
or pay a certain sum of money, but which are construed as
intending the payment of money to be by way of penalty
only to secure the performance of the act, and not as an
alternative which may be adopted instead of performance (d).

An election once made is binding, and the promise is Election of
thenceforth single to perform the alternative chosen; accord- mee
ing to the maxim, Quod semel placwit in electionibus, amplius
displicere non potest (ec). The defendant demised a house to
the plaintiff reserving rent, “to be paid quarterly or half-
quarterly if required,” and received the rent quarterly for a
year ; the Court held, without deciding whether the landlord

(a) 1 Leon. 68. penalties, post, Chap. V.

(6) 4C. & P. 98. (e) Co. Lit. 146 a; Brown v. Royal

(c) Simmonds y. Swaine,1 Taunt. Jus. Co.. 1 BE. & E. 853; 28 L. J. Q.
549. B. 275; and see Ward v. Day, 4 B.

(d) See as to such contracts with & 8. 337; 33L.J.Q.B.3.
2a2
356 CHAP, IIT. THE MATTER OF CONTRACTS.

had made his election by the previous receipts of rent, that
he could not distrain for a half-quarter’s rent without a pre-
vious notice (a). But though after election made the liability
may be absolute to perform the alternative chosen, in an
action upon the contract the declaration must allege the
contract in the alternative according to the fact, and state
the election made ; thus, upon a contract for the purchase
of 100 bags of wheat, 40 or 50 of which were to be delivered
on one market day, and the remainder on the next market
day, the plaintiff cannot declare as upon an absolute con-
tract for the delivery of 40 bags on the first day, though the
election was made and 40 bags were then in fact delivered ;
but the contract must be stated in the alternative according
to the original terms of it (0).

Notice of Where the plaintiff has the election between two acts to

election. he performed by the defendant, the exercise of his elec-
tion and notice of its exercise to the defendant is a con-
dition precedent to his charging the defendant with non-
performance (c). Where a vendor of land covenanted with
the vendee that he would deduce a good title and produce
the deeds at one of three places named, it was held that he
was bound to give notice to the vendee at which of the
three places he would be ready to do so (d).

Where one The effect of one of the alternative promises being, or

a subsequently becoming, impossible is treated of in the fol-

sible. lowing section,

Cuap. III. Sror. III. Impossiste Contracts.

   

Impossibility, nature of......... caused by the promisee
physical impossibility ‘ caused by the law ............
legal impossibility ............ Impossibility relative to pro-
Impossibility at time of contract MNISER secs ashshiupneanracatdieds 368
known to the parties......... 359 | Impossibility of one of alterna-
unknown to the parties,..... 360 tive promises ............66000 371
Subsequent impossibility ...... 361 | Impossible consideration ...... 375

ppessi: ‘Tu promise or undertaking expressed in the terms of the
Ivy 0} . *
performing agreement may be impossible of performance; and the ques-

thecontract
(a) Mallamy. Arden, 10 Bing.299.  W. 442, 454, 456; ante, p. 339.

(b) Penny v. Porter, 2 East, 2. (d) Rippinghalt Ye Lloyd, 5 B.&
(c) See Fyse v. 1% ahefield, 6M.& Ad. 742
SECT. III. IMPOSSIBLE CONTRACTS. 357

tion may arise as to the effect of such impossibility. The
impossibility may be absolute, that is, herent in the nature
of the matter promised, or it may exist only relatively to the
ability and peculiar circumstances of the promiser. The
impossibility may be an impossibility of fact, existing in the
nature of things; or it may be a legal impossibility, created
by law. The impossibility may exist at the time of making
the agreement; and in such case it may be known, or not
known to the parties ; or it may be first produced by events
subsequent to the agreement. The impossibility of perfor-
mance may affect the promise, or the consideration for the
promise. These variations in the nature and circumstances
of the impossibility produce various modifications in the
question as to its effect, which require to be severally con-
sidered.

A thing is absolutely impossible which the laws of nature Physical
will not allow to be done: quod natura fiert non concedit. bikty.
What may be called practical impossibility is placed on Practical
the same footing in law with absolute impossibility. It has a
been thus described: “In matters of business a thing is
said to be impossible when it is not practicable ; and a thing
is impracticable when it can only be done at an excessive or
unreasonable cost. A man may be said to have lost a shil+
ling, when he has dropped it into deep water; though it
might be possible, by some very expensive contrivance, to
recover it” (4). Whether a promise is reasonable or not,
provided it be reasonably practicable, is immaterial. “When
a person enters into a contract, he is bound to perform it,
whether reasonable or not. An obligation imposed by law
is necessarily both reasonable and practicable ; but a person
may undertake by agreement to do any particular act, and,
if it is not reasonable, it is his own fault for entering into
such a contract” (b). A promise must, however, be reason-
ably certain; if the parties have expressed themselves in
their agreement in such uncertain terms, that it is impos-

(a) Per Maule, J., Moss v. Smith, M. 73, 74.
9 C. B. 94, 103; cited by Cresswell, (4) Per Rolfe, B., Pyse v. Wake-
J.0., V—— v. H—, 30 L. J. P.& field, 6 M. & W. 442, 456.
Impossi-
bility by
act of God.

Legal im-
possibility.

Impossi-
bility at
time of con-

358 CHAP, II]. THE MATTER OF CONTRACTS.

sible to give them any definite meaning, the agreement is
necessarily void (a).

The phrase “impossibility arising by the act of God” is
used on some occasions as denoting a kind of impossibility
having peculiar incidents and consequences (b). Certain
accidents as death, tempest, etc., seem to be intended by
the phrase. It is obvious, however, that all such accidents
are referable to natural and not to supernatural causes, and
therefore they are all events, which, though beyond the con-
trol, are within the possible contemplation of the parties,
and might be and often are provided for in their agreement.
The contract of a carrier, by the common law, insures the
goods carried, except against two events—namely the act
of God and the king’s enemies, “both,” it is said, “so well
known to all the country where they happen, that no person
would be so rash as to attempt to prove that they had hap-
pened when they had not” (c). The specific events, however,
excepted from the carrier’s insurance as being acts of God,
must be ascertained from the decisions respecting them (d).

An act or undertaking may be absolutely impossible in
regard to its legal effect or operation, that is to say, it
may import to have or produce a legal effect or operation
which the law does not admit of. Impossibility of this
kind may be called legal impossibility.. It differs from ille-
gality in that it relates only to the legal effect which the
act purports to have, and not to the question whether the
act itself is allowed or forbidden by law (e).

Where an absolute impossibility of performance exists at
the time of making the agreement the general rule seems to

(a) Guthing v. Lynn, 2 B. & Ad.
232; per Lord Tenterden, C.J., Coles
y. Hulme, 8 B. & C. 568, 573; per
Alderson, B., Grant v. Maddox, 15
M. & W. 737, 743; Alder v. Boyle,
40. B. 635; see ante, p. 179.

(2) See Co. Lit. 206 a; Laughter’s
case, 5 Co. Rep. 21 6; Cro, Eliz. 398 ;
Greninghamv. Ewer, Cro. Eliz. 396 ;
Williams v. Lloyd, Sir W. Jones, 179;
Chit. Contr. 7th ed. 647.

(c) Riley v. Horne, 5 Bing. 217,

220; and see Coggs v. Bernard,
1 Smith’s L. C. 5th ed. 171; Forward
y. Pittard, 1 T. R. 27,

(d) See Chitty and Temple on Car-
riers, 36; Powell on Carriers, 73;
and see Forward vy. Pittard,1T. R.
27, 33; Briddon v. Great Northern
Ry. Co., 28 L. J. Ex. 51; Taylor v.
Great Northern Ry. Co., L. Rep. 1
C. P. 385; 35 L. J. C. P. 210.

(e) See examples of legal impos-
sibility, post, p. 359.
SECT, III. IMPOSSIBLE CONTRACTS. 359

be that there is no contract. The impossibility may be tracting,—
known or not known to the parties at the time of making 9° ea
the agreement. Where the impossibility is known to the

parties at the time of making the agreement, it seems ob-

vious that there can be no intention of performing it on the

one side, and no expectation: of performance on the other,

and therefore the essentials of a valid promise are wanting.

The impossible act cannot form the matter for a promise, or

for the consideration of a promise (a). A deed of charter-

party, containing a covenant that the ship should sail on her

voyage on or before the 12th of February, was executed on

the 15th of March; it was held that the covenant, being
impossible at the time when the deed took effect, became

wholly nugatory, and could not be understood ag having

formed any part of the contract between the parties (0).

So, where the matter of the agreement is legally impos- Legal im-
sible, which both parties are presumed in law to know, no PosPility
valid contract can arise from such agreement. A  pro- contract
mise made by the defendant in consideration that the”
plaintiff who was bailiff to J. S. would discharge the de-
fendant from a debt which he owed to J. S., was held void,
because the consideration was impossible; for the plaintiff
could not legally discharge a debt due to his master (c). A
bond was given conditioned for the payment to the obligee
of a sum of money, upon his procuring subscribers for 9000
shares in a company to be formed for the purpose of taking
an assignment of certain patents; the patents, however,
contained a proviso that they should be void if assigned to
more than five persons; consequently, the condition was
impossible in law, and the bond was held to be void (d).

An agreement was made between the plaintiffs and the
defendant as follows: in consideration that the plaintiffs,
who were assignees of a bankrupt, would forbear to examine
the bankrupt touching certain sums he was charged with
having received and not accounted for, and that the com-
missioners of bankruptcy would likewise forbear and desist
from taking such examination, the defendant promised the

(a) See ante, p. 9, 10. (4) Duvergier vy. Fellows, 5 Bing.
(b) Hall vy. Cazenove, 4 East, 477. 248; affirmed in error, 10 B. & C.
(c) Harvey vy. Gibbons, 2 Lev. 161. 826.
Impossibi-
lity at the
time of con-
tracting,
not known
to the par-
ties.

360 CHAP. III. THE MATTER OF CONTRACTS.

plaintiffs to pay them the sums in question ; the contract
was held invalid upon grounds stated by Lord Kenyon, C.J.,
as follows :—“ The ground on which I found my judgment
is this, that every person who in consideration of some ad-
vantage, either to himself or to another, promises a benefit
must have the power of conferring that benefit up to the
extent to which that benefit professes to go; and that not
only in fact but in law. ‘Now the promise made by the as-
signees in this case, which was the consideration of the de-
fendant’s promise, was not in their power to perform, be-
cause the commissioners had nevertheless a right to ex-
amine the bankrupt, and no collusion of the assignees could
deprive the creditors of the right of examination which the
commissioners would procure them” («).

Where the parties are in ignorance that the performance
agreed upon is impossible, they are under a common mis-
take as to a matter of fact which induces them to make the
contract. In such case the question may arise upon the
construction of the terms of the contract whether it has been
made expressly or impledly conditional upon the sup-
posed state of facts, so as not to be applicable to the real
state of facts, or whether one of the parties has undertaken
the responsibility of performance at all risks and in all
events (0).

Thus, upon the sale of a cargo of goods, which at the
time of the sale was supposed to be on its voyage, but which
unknown to both parties. had been then éntirely lost, it was
held that the contract imported the condition that the ship
or goods were then in existence (c). Upon the sale of a
ship the vendor covenanted that he had then power to sell
the ship; it was held that the covenant was not conditional
upon the existence of the ship, and would be broken, if the
ship had ceased to exist at the time of the sale, although
both parties might have been ignorant of it (d). So, the
sale of a life annuity was held to be conditional upon the
annuitant being alive at the time of the sale; and the life

(a) Nerol v. Wallace, 3 T. R. 17. 5 H. L. C. 673; 25 L. J. Ex. 253.
(b) See ante, “ Mistake,” p. 176. (¢) Barr \. Gibson, 3 M. & W.
(ec) Couturier v. Hastie, 9 Ex.102; 390.
SECT. III. IMPOSSIBLE CONTRACTS. 361

having in fact ceased before the contract was made, it was
held to be void and the purchase-money recoverable (a). The
renewal of an insurance of a life was held to be conditional
upon the insured being then alive, and he being then dead,
though unknown to the parties, it was held void ()).

The plaintiff made a charterparty with the defendant, by
which it was agreed that the plaintiff’s ship should proceed
to a port named, or so near thereto as she could safely get,
and there load a full cargo with which she was to sail, the
cargo to be loaded at the merchant’s risk and expense. The
ship having received the cargo on board, it was found im-
possible for it when laden to cross the bar of the port, of
which neither party were previously aware; the captain
thereupon landed part of the cargo and required the de-
fendant to reship it outside the bar, which he refused to do,
and the ship sailed with only a part of the cargo; it was
held that the plaintiff had no claim for the whole freight,
nor for damages from the defendant for refusing to ship a
full cargo (c). If the plaintiff had been aware that the ship
could not cross the bar with the cargo on board, he might
have, in the first instance, demanded the cargo to be shipped
outside, being as near as the ship could safely get to the
port for the purpose of the voyage (d).

Where the performance of the promise becomes abso- esse
supse-

lutely impossible subsequently to the making of the con- quent to
tract, and there ig no express provision in the agreement to oo
meet such an event, the general rule seems to be that the
contract remains binding notwithstanding the supervening
impossibility. This is a rule of construction founded on the
grammatical meaning of the general undertaking contained
in the agreement, but it gives way to an implication of a con-
trary intention. The question whether the contract remains
applicable to the subsequent impossibility, or on whom the
consequences of such impossibility shall fall, depends upon
the intention of the parties, as collected from their agree-

(a) Strickland v. Turner,7 Ex. 208. (c) General Steam Navigation Co.
(6) Pritchard v. Merchants’ Life  v. Slipper, 11 C. B. N.S. 493; 31
Assurance Soc. 3 0. B. N. 8. 622; LL. J.C. P. 185.
27 L. J. C. P. 169. (d) Shield v. Wilkins, 5 Ex. 80-4.
Impossibi-
lily subse-
quent to
contract-
ing.

362 CHAP, II], THE MATTER OF CONTRACTS.

ment. The agreement may show the intention to contract
with reference only to a particular state of facts then exist-
ing, and not with reference to any different state of facts ;
or it may show the intention to bind the promiser for the
act or performance in all events, or to limit his responsibi-
lity to certain events only, and to except others. These are
questions of construction ; and where it cannot be implied
that the parties have contemplated and provided for the
impossibility arising, the above general rule, founded on the
absolute language of the agreement, seems to apply.

Accordingly, it has been frequently laid down to the
effect that where there is an absolute 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 contract has
become unexpectedly burthensome, or even impossible (a).

In an action on a charterparty, (not containing any ex-
ceptions) against the master of the ship for not proceeding
to the port of loading, the defendant pleaded that it was im--
possible for him to do so by reason of contrary winds and
bad weather; the plea was held bad on demurrer, Lord
Mansfield saying that the defendant by the charterparty be-
came the insurer of the risk of his reaching the port of load-
ing (b). So, where a shipowner undertakes to take his ship
to a certain port or wharf, and is prevented by the state of
the tides, the delay is at his cost; and demurrage is not
chargeable until the ship reaches the wharf (c).

By a charterparty, the freighters contracted to load a full
cargo of coals at a certain port in the customary manner ; it
was held that this meant a loading within a reasonable time
according to the usage of the port, and the freighters were
not excused by extraordinary casualties, connected with the
railway and the collieries, which prevented them procuring
the coals for loading; and it was said that the freighters

(a) 1 Roll. Abr., tit. Condition v. Pearson, 7H. & N. 386; 31 L. J.
(G.1); Puradine v. Jane, Aleyn, 27; 9 Tix. 1,

notes to Wallon v. Waterhouse, (2) Shubrick vy. Salmond, 3 Burr.
2 Wms. Saund. 420 ; Taylor vy. Cald- 1637.
well, 3B. & 8.826; 32L.3.Q.B. (ce) Parker v. Winlow,7 EB. & B.

164; Brown v. Royal Ins. Co. 1B. 942; 27 L. J. Q. B.49; Bastifell v.
& E.853; 28L.J.Q.B.275; Kearon Lloyd, 1 H.& C.388; 31 L.J. Ex, 413.
SECT. III. IMPOSSIBLE CONTRACTS. 363

should have protected themselves by some stipulation, if
they intended to relieve themselves from the consequences
of fortuitous impediments to the due performance of their
contract (a). A charterer having by charterparty contracted
to load a ship with a full cargo of coal with the usual des-
patch ; the term “usual despatch”? was held to mean the
usual time necessary for a cargo provided ready for loading,
and the charterer was not excused because he was prevented
from providing a cargo for loading by a severe frost which
closed up the access to the colliery by a canal (b). But where
a charterparty was made of a similar kind for loading coal
at a particular colliery, and at the time of making it both
parties were aware that the colliery was not at work for
want of repairs, but expected it to be at work in a short
time, it was held that the freighter was not liable for the
delay in loading occasioned by the want of repair of the col-
liery, and that it was sufficient if he loaded within a rea-
sonable time after the colliery got to work, the contract
having been intended to apply to the known state of things
at the colliery at the time (c).

Upon this principle, a lessee of a house who covenants
generally to repair, is bound to rebuild it, if it be burned by
an accidental fire (d). Ona covenant to build a bridge and
to keep it in repair for a certain time the covenantor was
held bound to rebuild the bridge, although after the original
building it had been destroyed by an extraordinary flood
without any default on his part (¢). A contract was made to
build a. bridge on a certain site and maintain it for seven
years, and it appeared to be impossible to build a bridge that
would stand on that site; the contractor was held hable for
damages (f). An insurance company contracted to reinstate
a house which had been damaged by fire, and subsequently
the commissioners of sewers ordered the house to be taken

(a) Adams v. Royal Mail Steam
Packet Co., 5 C. B. N.S. 492.

(4) Kearonv. Pearson, 7H. & N.
386; 31 L. J. Ex. 1.

(c) Harris v. Dreesman, 23 L. J.
Ex, 210.

(d) Earl of Chesterfield v. Bolton,
Comyns, 627 ; Bullock v. Dommitt, 6

T. R. 650; Digby v. Atkinson, 4
Camp. 275 ; Re Skingley,3 Mac. & G.
221; 20 L. J. C. 142.

(e) Brecknock Navigation v. Prit-
chard, 6 T. R. 750; and see Dyer, 33
@ (10).

(f) Errington vy. Aynesly, 2 Bro.
C. C. 341.
I mpossibi-
ity subse-
quent to
contract-
ing.

Contracts
conditional
upon con-
tinued pos-
sibility of
perform.
ance.

364 CHAP. III. THE MATTER OF CONTRACTS.

down as dangerous, from defects not caused by the fire ; the
company were held bound by their contract notwithstanding,
and a plea that the commissioners had caused the house to
be pulled down was held bad on demurrer (a). In an action
for breach of a promise to marry, the defendant pleaded
that after making the promise he became through disease
incapable of marriage without danger to his life; but the
plea was held no defence to the action (b).

The case of Lawrence v. Twentiman (c) has been sometimes
cited to the contrary effect ; it is reported as follows :—“ If
a man covenant to build a house before such a day, and the
plague appears there before the day and continues until
after the day, that will excuse him from the breach of
covenant in not doing it before the day, for the law will not
compel him to risk his life; but he must do it afterwards.”
This case has been explained upon the ground that time was
not of the essence of the contract, so that it was a contract
to build the house within a reasonable time; and it was said
that unless it could be so explained, or unless some statute
rendered the building illegal by reason of the plague in the
neighbourhood, the case could not be sustained” (2).

On the other hand, contracts may be made conditional
upon the continued possibility of performance. Agreements
sometimes occur which are absolute in their terms and con-
tain no express reservation of particular events which may
render the performance impossible, but which from their
nature sufficiently denote an intention of the parties that
they shall apply only to a particular state of things contem-
plated by the parties, and that they shall not apply in certain
events which render the performance impossible; and in
such agreements a condition is implied that they shall be
void under those circumstances to which they are manifestly
not intended to apply (e).

Contracts having for object some performance or matter

(a) Brown v. Royal Ins. Co., 1 EH. & (c) 1 Roll. Abr. p. 450, pl. 10.
E, 853; 28 L. J. Q. B. 275 ; Erle, J., (d) See per Lord Campbell, O.J.,
dissentiente. Hall v. Wright, E.B.& E. 746, 762 ;
(2) Hall v. Wright, B. B. & BE. per Martin, B., 2d. 790.
746, 765; 27 L. J. Q. B. 345; 29 (e) Taylor v. Caldwell, 3 B. & S.
ib. 43. $26, $33 ; 32 L. J. Q. B. 164, 166.
SECT. III. IMPOSSIBLE CONTRACTS. 365

which is strictly personal to the parties are commonly made
upon the implied condition that they should be binding only
so long as the parties live, though made without any express
qualification to that effect ; and the death of a party, render-
ing the object of the contract impossible, at the same time
puts an end to the contract (a). Thus, a contract to marry
is impliedly conditional upon the continued existence of the
parties ; and the executor of a deceased party acquires no
right, and sustains no Hability under the contract, even for
a breach committed before the death (vb). Contracts of
agency or for personal services are, in general, revoked by
death ; and the executor of the agent or contractor cannot
be sued upon them, except for breaches committed before the
death (c). A contract made by the plaintiff with a firm con-
sisting of the defendant and his partner, for employment as
their agent during four years, was held to be subject to the
implied condition that all the parties so long lived, and to
be terminated by the death of the defendant’s partner (d).
Contracts of bailment of goods, as, wpon loan, or for work
to be done upon them, are commonly made upon the implied
condition of the continued existence of the thing delivered ;
and if the return of the thing becomes impossible because
it has perished, without any fault of the bailee, he is ex-
cused from the performance of the promise to re-deliver the
chattel, according to the maxim, “res perit domino” (e).
The plaintiff delivered a horse to the defendant who pro-
mised to re-deliver it on request, and the horse having died
before request, the defendant was held to be excused (/).
The plaintiff and the defendant entered into an agreement
for giving a series of concerts at a music hall, by which the
defendant undertook to provide the hall, and the plaintiff

(a) 2 Wms. Ex. 5th ed. 1560; 575; 30 L. J. Ex. 207.

Taylor v. Caldwell, 3 B. & 8. 826, (e) Laylor v. Caldwell, 3 B. &S.
835; 32 L. J. Q. B. 164, 167. 826, 838; 32 L. J. Q. B. 164, 168 ;

(b) Chamberlain v. Williamson, 2 Williams v. Lloyd, Six W. Jones, 179 ;
M. & 8. 408. Menetone v. Athawes, 3 Burr. 1592 ;

(c) 2 Wms. Ex. 5th ed. 1560; per Rugg v. Minelt, 11 East, 210; Bayne
Parke, B., Siboni v. Kirkman, 1M.&  v. Walker, 3 Dow. 233, 238; Jones
W.418,423; Campanariv. Woodburn, on Bailments, 119; Story on Bail-
15 C.B. 400. ments, §§ 25, 26, 426, 437.

(d) Tasker v. Shepherd, 6 H. & N. (f) Williams v. Lloyd, supra.
366 CHAP, III. THE MATTER OF CONTRACTS.

was to provide the rest of the entertainment, but before the
time appointed the hall was destroyed by fire ; it was held
that the contract was conditional upon the existence of the

hall, and was put an end to by its destruction, and, there-

Subsequent
1mpossl-
bility
caused by
the pro-
misee.

fore, no action would lie against the defendant for not pro-
viding the hall (a). The plaintiff contracted to erect cer-
tain machinery in a building of the defendant, and whilst
the works were in progress, the building was destroyed by
an accidental fire; it was held to be an implied term of
the contract on the part of the defendant that the build-
ing should continue suitable for the reception of the ma-
chinery, which was not excused by the fire, and that he
was lable to compensate the plaintiff for the value of the
work done (8).

Charterparties and contracts for the carriage of goods in
ships, being peculiarly liable to be interfered with in their
performance by occurrences over which the shipowner has
no control, generally contain an exceptive clause guarding
him from liability for such occurrences. The common form of
this clause runs as follows:—“ The act of God, the king’s
enemies, fire and all and every other dangers, and accidents
of the seas, rivers and navigation of what nature and kind
soever excepted” (c). The contract of carriers within the
realm is by common law and without any express stipula-
tion subject to the exception of loss or damage happening
by the act of God or the Queen’s enemics (d). In the lease
of a house containing a covenant to repair it is common to
except casualties by fire or tempest, in the absence of which
exception, the lessee would be bound to repair whatever da-
mage happened to the premises by fire or otherwise (e).

If the promisee has himself caused the impossibility of
performance the promiser is excused. ‘‘ In all cases where
a condition of a bond, recognizance, etc., is possible at
the time of the making of the condition, and before the
same can be performed the condition becomes impossible by

(a) Taylor vy. Cauldwell, 3B. & 8. (ec) As to this clause see Russell y.
826; 32 L. J. Q. B. 164. Niemann, 34 L. J.C. P. 10.
(b) Appleby v. Meyers, 35 L, J. C. (d) See ante, p. 358.

P. 295; L.R.10C.P. 615. (e) See ante, p. 363.
SECT. III. IMPOSSIBLE CONTRACTS. 367

the act of the obligee, then the obligation is saved” (a),
* And so itis if A. be bound to B. that J. 8. shall marry
Jane G. before such a day, and before the day B. marry
with Jane, he shall never take advantage of the bond; for
that he himself is the mean that the condition could not be
performed” (b). By a contract for work it was agreed that
the work should be finished by a certain day, and if not, a
penalty of so much a day should be paid for each day beyond ;
the employer was held not to be entitled to claim the penalty
for delay caused by his own interference (c). The promiser is
not excused by an impossibility caused by himself (d).

If the supervening impossibility is caused by the law the subsequent
performance is excused (ec). A bond was conditioned that eae
the treasurer of certain turnpike roads should account for by thelaw.
and pay all monies coming to his hands as treasurer accord-
ing to the direction of the then general turnpike Act; this
Act having been subsequently repealed, and the condition
as to accounting according to it having thereby become im-
possible through the act of Legislature, it was held that
the condition was saved (jf). The Corporation of London,
empowered by various Acts of Parliament relating to the
River Thames, borrowed money on the security of bonds
conditioned for the payment of certain yearly sums out of
the tolls.and duties granted and made payable by virtue of
the said Acts ; by the Thames Conservancy Act, subse-
quently passed, all the right of the Corporation under the
former Acts as well as the power to receive and apply the
tolls abovementioned were taken away from the Corpora-
tion and vested in a new body called the Conservators of
the Thames ; it was held that, the performance of the con-
dition having been rendered impossible by the Act of Par-
liament, the obligation was discharged (9).

Impossibility occasioned by the acts or law of a foreign
state does not excuse the performance, unless excepted in

(a) Co. Lit. 206 a. 436 ; Beswick v. Swindells, 3 A. & B.

(b) Co. Lit. 206 bd. 868, 883.

(c) Holme v. Guppy, 3M. & W. (e) Doe v. Rugeley, 6 Q. B. 107.
887 ; Russell v. Bandiera, 13 0. B.N. (f) Davis v. Cary, 15 Q. B. 418.
8.149; 32 L. J. C. P. 68. (g) Brown v. Mayor of London,

(d) Bigland y. Skelton, 12 East, 9C.B.N.S. 726; 31L. J.C. P. 280.
Impossi-
bility rela-

368 CHAP. III. TITE MATTER OF CONTRACTS.

the contract. Thus, to an action for not delivering goods
sold to be shipped at a foreign port it was held to be no
defence that the goods had been confiscated by the foreign
government as British property (a). So, it was held no de-
fence to an action on a charterparty for not providing a
cargo at a foreign port, that an infectious disorder prevailed
there and all intercourse was prohibited by the law of the
place ; Lord Ellenborough said: “The question here is, on
which side the burthen is to fall. If indeed the performance
of this covenant had been rendered unlawful by the govern-
ment of this country, the contract would have been dissolved
on both sides, and the defendant, inasmuch as he had been
thus compelled to abandon his contract, would have been
excused for the non-performance of it, and not liable to
damages. But if in consequence of events which happen at
a foreign port, the freighter is prevented from furnishing
a loading there, which he has contracted to furnish, the
contract is neither dissolved, nor is he excused for not per-
forming it, but must answer in damages” (0).

In an action by the freighter for not delivering goods
under a contract of affreightment whereby the defendant
promised to safely carry and deliver the goods of the plain-
tiff, the act of God, the Queen’s enemies, fire, and all dan-
gers of seas, rivers, and navigation excepted, the defendant
pleaded that the goods were seized and confiscated in a
foreign port as contraband by the law of the foreign coun-
try ; this plea was held bad on demurrer, the obstacle to
performance not coming within any of the matters ex-
cepted (c). Where a charterparty was made for the carriage
of goods from a port of a foreign country (the restraint of
princes and rulers excepted), the apprehension of an ex-
pected hostile embargo on British shipping in the foreign
port was held to be no excuse for the master of the ship
leaving the port without the cargo («/).

If the act is not absolutely impossible, but impossible only

(a) Splidt v. Heath, 2 Camp. 57 (c) Spence v. Chodwick, 10 Q. B.
n.(a); and see Atkinson y. Ritchie, 10 517 ; and sce Storer v. Gordon,3 M.
East, 530. & 8. 308.

®) Barker vy, Hodgson, 3 M. & 8. (d) Atkinson vy. Ritchie, 10 East,
267. 530.
SECT. III. IMPOSSIBLE CONTRACTS. 369

relatively to the power and circumstances of the promiser, tive to the
such impossibility is, in general, immaterial, and the pro- ’°""™
miser responsible for the non-performance, whether the im-
possibility exists at the time of making the contract, or sub-
sequently supervenes. Thus, aperson incurring a debt may
be, or may become, unable to pay it for want of money; but
he is not on that account excused from his contract. “A
man may contract to do that which he cannot be sure that
he will'be able to do; a man may, if he chooses, covenant
that it shall rain to-morrow, and if it does not, he has broken
his covenant” (a). In the old case of Thornborow v. Whit-
aker (b) ,the contract was, in consideration of £5, of which half-
a-crown was paid down and the rest to be paid on perform-
ance by the defendant, the defendant promised to deliver to
the plaintiff two grains of rye on the following Monday,
four grains on the Monday after, and so on, doubling the
number every other Monday for a year, and the defendant
demurred to the declaration on the ground that the contract
was impossible; the Court seemed to think that it was only
impossible with respect to the defendant’s ability, which
was not such an impossibility as would make the contract
void, and said that the words ‘every other Monday’ must
be construed every next Monday but one, which would
bring the contract nearer to the defendant’s ability of per-
formance ; the counsel for the defendant, perceiving the
opinion of the Court to be against his client, offered the
plaintiff his half-crown and costs, which was accepted,
and so no judgment was given. In the similar old case of
James v. Morgan (c), the contract was to pay for a horse a
barleycorn a nail, doubling it every nail, which came to 500
quarters of barley, there being thirty-two nails in the shoes
of the horse ; the judge directed the jury to give the plain-
tiff the value of the horse in damages, which they did, but
on what grounds this direction was given does not appear.

Promises or undertakings for the acts or conduct of a Under.
third person which are beyond the control of the promiser, Fe
may be impossible of performance relatively to him, but are third party.

(a) Per Maule, J., Canham v. B.1,9.
Barry, 15 ©. B. 597, 619; 24 L. J. (0) 2 L. Raym. 1164,
C. P. 100, 106; Jones ¥. How, 9 C. (ce) 1 Levinz. 111,
28
370 CHAP, III. THE MATTER OF CONTRACTS.

Undertak- nevertheless binding ; and if there is any default in the act

ing for the

actofathira OT Conduct for which he has undertaken to be responsible,

party.

his contract is broken (a). In Lambh’s case (6) a bond was
conditioned for the obligor to give to the obligee such a re-
lease as by the judge of the Prerogative Court should be
thought meet, and the judge did not appoint or devise any
release ; the bond was held to be forfeited, for the obligor
was bound to procure the judge to have devised a release.
So, a covenant to enfeoff a third person is not discharged
by his refusal to accept livery of seisin(c). So, a bond
or covenant undertaking to pay a sum of money, to be fixed
by the valuation of a third person, is not excused by reason
of that person refusing to make a valuation (d). The de-
fendant, the lessee of a mill, covenanted to leave the mill-
stones in as good condition as he found them, or to pay
to the plaintiff so much as they should be damnified, the
damage to be estimated by A. and B. who viewed them
when the defendant first entered; in an action on the co-
venant for leaving the millstones damnified, the defendant
pleaded that A. and B. had not estimated the damages ; the
plea was held bad on demurrer, on the ground that it was
for the defendant to procure the estimation, otherwise he
would be liable for the damages (e).

A contract for the sale of a leasehold interest by a lessee,
who holds under a lease containing a covenant not to assign
without licence of the lessor, is binding, though it cannot
be performed without the licence of the lessor; and the
vendor is held bound to obtain the licence, although the
purchaser, at the time of contracting, had notice of the
covenant in the lease (f). A contract made by one of the
partners in a firm with a stranger to take him into the
partnership is binding, although it is impossible for him to
perform it without the consent of the other paréners (4).

(a) Doughtyv. Neal, 1 Wms.Saund. (d) More Morecomb, Cro. Eliz.
214; Appletonv. Binks, 5 Kast, 148; 864; Studholme .. Mandell, 1 L.
see Hughes v. Humphreys, 6B. & C.  Raym. 279.

680, 686; Tufnell v. Constable, 7 A. (e) Studholme y. Mandell, 1 L.
& E. 798. Raym. 279; and see More v. More-
(b) 5 Co. 28 d. comb, Cro. Eliz. 864; Moor, 645.

(c) Per Lord Kenyon, Cook vy. Jen- (f) Lloyd v. Crispe, 5 Taunt. 249.

nings, 7 'T. R. 381, 384. (9) WNeill v. Retd, 9 Bing. 68.
SECT. Ill. IMPOSSIBLE CONTRACTS. 371

The defendant who had sold shares in a mining company,
which could only be transferred with the approval of the di-
rectors, was held bound to procure the assent of the direc-
tors; and, the directors having refused their assent, he was
held liable for a breach of his contract («).

In the case of a resignation bond given by the incumbent
of a living, it was held that the bishop’s refusal to accept
the resignation was no excuse for the incumbent not re-
signing ; for that he had undertaken to resign, which implies
acceptance, without which the resignation is not complete ()).
The defendant undertook to pay £35 on an appointed day,
or in default thereof to surrender the person of a debtor to
the sheriff, and the defendant offered to surrender the debtor,
but the sheriff refused to take him; it was held by Parke,
B., that the contract was broken, and that the defendant was
responsible for the non-surrender (c).

If a man binds himself to perform one of two things, of Despont
which one is then possible, and the other impossible, he Mitsnn tive
must perform that which is possible (d). Accordingly, where P"°™s*s-
a bond was conditioned to pay to the plaintiff a certain sum
on or before the 10th January, or if default should be made
in such payment to surrender to the plaintiff a prisoner who
had been taken in execution at the plaintiff’s suit, and whom
the plaintiff had discharged upon procuring the bond as se-
curity for his debt, the Court held that the part of the
condition which was to render a prisoner in execution who
had been once discharged was legally impossible and void,
and therefore, as the other part had not been performed, the
bond was forfeited (ce). So, if an award directs one of two
things to be done in the alternative, and either of the two
is impossible or uncertain, it is incumbent on the party to
perform the other of them (/).

Where one of two alternative promises becomes subse- Subsequent
impossi-

(a) Wilkinson y. Lloyd,7 Q.B. 27; (d) Da Costa v. Davis, 1 B. & P.
and see Stray v. Russell, 1 E.&E. 242

888,916; 28 L.J.Q.B.279; 29%. — (e) Da Costav. Davis, 1B. & P.
115. 242.
(b) Grey vy. Hesketh, Ambler, 268. (f) Simmonds v. Swaine, 1 Taunt.

(c) Stevens v. Webb, '7 C. & P, 60. 549.
2B 2
372 CHAP. II. THE MATTER OF CONTRACTS.

bility of one quently impossible, the other may or may not remain bind-

of alterna-
tive pro-
mises,

ing according to the construction of the contract as to the
intention of the parties. It has been attempted to find a
general rule to meet such cases, but without a satisfactory re-
sult (a); and in the case of Barhworth v. Young (b), Kindersley,
V.C., after consideration of the authorities, said :—“It ap-
pears to me that it is improper to lay down any universal
proposition either way ; but that the principle to be applied
in each case is, that it must depend on the intention of the
parties to the bond or covenant or agreement, such intention
to be collected from the nature and circumstances of the
transaction and the terms of the instrument; and this, at
least, I think, will hardly admit of contradiction, that if the
Court is satisfied that the clear intention of the parties was,
that one of them should do a certain thing, but he is allowed
at his option to do it in one or other of two modes, and one
of these modes became impossible by the act of God, he is
still bound to perform it in the other mode.”

In Laughter’s case (c) a bond was conditioned that if a
husband should aliene his wife’s land, he would either convey
to her land of equal value, or leave her by will an equal sum
of money ; the husband aliened the lands and afterwards the
wife died, leaving the husband surviving, so that the alterna-
tive of leaving the money by will became impossible ; it was
held that the condition was not broken: according to the re-
port of Coke the reason of the judgment was “ that where a
condition of a bond consists of two parts in the disjunctive,
and both are possible at the time of the bond made, and
afterwards one of them becomes impossible by the act of
God, the obligor is not bound to perform the other part.”
So, the plaintiff, having arrested a debtor at his suit, at re-
quest of the defendant released him from custody upon the
defendant giving the plaintiff a bond, conditioned to pay the
plaintiff £70 before the 25th December or to surrender the
debtor before that day into custody in the said action; im an

(a) See Laughter’s case, 5 Co. 21 cases collected in Jones y, How, 9 C.
&; Cro. Eliz. 398; Greningham vy. B.1.
Ewer, Cro, Eliz. 396; More v. More- (6) 4 Drewry, 1, 25; 26L. J.C.
combe, Cro. Eliz. 864; Drummond vy. 1538, 163.
Duke of Bolton, Sayer, 243; and the (c) 5 Co. 21,8.
SECT. ITI, IMPOSSIBLE CONTRACTS. 373

action on the bond, the defendant pleaded that before the Subsequent
said 25th December the debtor died, and upon demurrer piilty of al-
judement was given for the defendant on the authority of temative
Laughter’s case (a). oe
In a subsequent case, however, it was said by the Court
that “the rule and reason in Laughter’s case ought not to
be taken so largely as Coke has reported it, but according
to the nature of the case ;” and it was stated that the judges
who had decided Lauyhter’s case had denied that they laid
down such arule as Coke had reported ; yet the whole Court
held that the case of Lawyhter was good law (b). So, where
A. in consideration ‘of £100 bound himself in a bond con-
ditioned either to make a lease for the life of the obligee be-
fore such a day, or to pay him £100, and the obligee died
before the day, it was adjudged that the obligor should pay
the £100 (c). The plaintiff sued upon a bond, reciting the
intended marriage of the plaintiff, and conditioned that de-
fendant should pay to the plaintiff or to her children by her
intended husband £3000 within six months after the defend-
ant should become the Duke of Bolton ; the defendant pleaded
that the plaintifi’s husband died without having any child
before the defendant became Duke of Bolton, and relied
upon the doctrine laid down by Coke in Laughter’s case; but
the Court denied that doctrine to be law, and held that, con-
struing the condition of the bond according to the intention
of the parties, the plea was bad (d).
In the case of Jones v. How, a father upon the marriage
of his daughter covenanted with her husband by deed or will
to give, leave, and bequeath to his daughter an eighth part
(that being an equal share with his other children), of all the
real and personal estate of which he should die seised or
possessed ; the daughter died in the lifetime of her father,
without issue, and the father did nothing in performance
of the covenant; upon a case sent from the Court of

(a) Warner v. White, Sir T. Jones, 4 Drew. 1, 24; 26 L. J. C.153, 163.
5, (ce) See per Treby, C.J., Studholme
(b) See Studholme v. Mandell, 1 L. v. Mandell, 1 L. Raym. 279; Salk.
Raym. 279; Drummond v. Duke of 1470.
Bolton, Sayer, 243 ; and see per Kin- (d) Drummond v. Duke of Bolton,
dersley, V.C., Barkworth v. Young, Sayer, 248.
374 CHAP, Ill, THE MATTER OF CONTRACTS.

Subsequent Chancery for the opinion of the Court of Common Pleas,

impossi-
bility of
alternative
promise,

Impossi-
bility of
alternative
promise
after elec-
tion.

the Court certified that there was no cause of action upon
the covenant, but assigned no reasons for the certificate (a).
In the similar case of Barkworth v. Young (b), a father on
the marriage of his daughter promised her husband that he
would at his death leave to his daughter an equal share of
his property with his other children; the daughter died in
the lifetime of her father, leaving issue which survived him;
the father died having made a will leaving all his property
to other children to the exclusion of the daughter; upon a
bill claiming the benefit of the promise against the father’s
estate, the Court treated the promise as an alternative one
which was capable of being performed in two ways: either
by bequeathing to his daughter by will an equal share, or
by dying intestate and leaving her to share equally with his
other children under the statute of distributions; by the
death of the daughter in the lifetime of her father the latter
mode of performing the promise became impossible, but, as
she left children who survived her father, it was possible for
him to have made a bequest to his daughter by will which
by virtue of the 83rd section of the Wills Act, 1 Vict. c. 26,
would not have lapsed, but would have taken effect as if the
death of the daughter had happened immediately after his
death. The Vice-Chancellor Kindersley was of opinion that
it was manifestly the intention of the parties that im one way
or other the daughter should have an equal share of the tes-
tator’s property, and if the testator was prevented even by
the act of God from performing his’ obligation in one way,
he was bound to perform it in the other way which was pos-
sible, and he decreed accordingly (c).

Where the contract is to perform one of two alternatives
at the election of one of the parties, and the election is
made, the contract becomes single and absolute to perform
the alternative chosen; and if, after the election is made,
the alternative chosen becomes impossible, the lability of
the party bound depends upon the principles already stated

(a) 90. B.1; Wigram, V.C., con- (b) 4 Drew. 1; 26 L. J. C. 153.
firmed the certificate, see S.C. 7 Hare (c) See the observations of Kin-
267; 19 L. J, 0.324; 90. B.19(@).  dersley, V.C., cited ante, p. 372.
SECT. ITI. IMPOSSIBLE CONTRACTS. 375

respecting subsequent impossibility (a). An insurance com-
pany, having insured certain buildings against fire by a policy
reserving to them the option either to reinstate the premises
injured or to pay the loss, upon,a fire happening, chose the
former alternative; the buildings were subsequently ordered
to be taken down by the public authorities as being in a
dangerous condition, but such condition was not caused by
the fire ; the company were, nevertheless, held bound by the
alternative they had chosen, and became liable in an action
for not reinstating the premises (b).

In contracts containing an executory consideration, or in Considera-
which a promise is given for a promise, the impossibility of ee
performance may be incident upon the consideration of the formance.
contract ; and the question will then be as to the effect of the
impossibility upon the promise made in respect of such con-
sideration (c).

A promise which, at the time of making it, is void by rea-
son of impossibility of performance cannot form a sufficient
consideration for a contract (d).

A promise which is possible and valid at the time of mak-

ing it would form a sufficient consideration to support a
contract, though it might become subsequently impossible.
The contract might be made conditional on the continued
possibility of performance, and then, upon the event of the
impossibility occurring, the contract would be void (e); or the
performance of the consideration might be made a condition
precedent to the promise made in respect of it, and then the
promise would fail by reason of the non-performance of the
condition precedent, in the event of such condition becoming
impossible of performance (/).

(a) See ante, p. 361. Nerot v. Wallace, 3 T. R. 17; cited
(b) Brown v. Royal Ins. Co., 1 ante, p. 360.

E. & E. 853; 28 L. J. Q. B. 275. (e) See ante, p. 364.
(ec) See ante, p. 11. (f') See ante, p. 344.

(d) Harvey v. Gibbons, 2 Lev. 161;
376 CHAP. Ill. THE MATTER OF CONTRACTS.

Cuap. III. Secr. LV. Inteca, Contracts.

 

WME BALI seclocenacnenraceerieeaes 376 | Immoral contracts............... 399
Wagering contracts ., 26 oe made for illegal pur-
Sale of public offices ............ BBL | pose 2... eee eee eee teens 400
Contracts for the committing Contracts | in fraud of a third

or compounding of wrongs PALLY sseoersieniassavensen ener 402

and offences ........cceeee 382 | Effect of illegality in avoiding
Maintenance and champerty .. 385 CONTAC siessvncrarmnemaians 405
Contracts in restraint of trade 387 | Effect after execution of the
Contracts infringing laws of CONGTACE . ios5 seceeesraiven season 405

PACES 5 vsesiconasinpronsiansnrs tae 392 | Money paid as consideration

Trading with enemy............ 395 of illegal contract ............ 407
Contracts in restraint of mar- Effect of partial illegality...... 409
TVASS! winsgersanaiwaansarad sans 398 | Effect of subsequent illegality 411

Ilegality. Ip there is anything unlawful in the matter or purpose of
an agreement it is void on the ground of illegality, and can-
not give rise to a contract. A matter may be illegal by
force of the common law or of the statute law.

Bythecom. The common law forbids generally such matters as are

mon aw. Contrary to morality and public policy; but the particular in-
stances in which it will avoid agreements upon those grounds
must be sought in the decisions of the Courts.

By statute The statute law expresses its commands and prohibitions

ie in written language, upon the construction of which it is to
be determined whether a particular agreement is forbidden
or not.

Matters The statute law sometimes imposes a penalty on a parti-

pie cular matter without further expressly restraining it; it is
then held, as a general rule, that such a penalty implies a
prohibition, and that an agreement concerning the matter
so prohibited is void for illegality (a). Acts of Parliament
sometimes impose a penalty or prohibit a matter for some
particular purpose only, as for the purpose of protecting the
revenue, and without intending the prohibition to have any
further operation; an agreement concerning such matter
may be held to be valid, although a party to it may incur
a penalty or commit an offence against the statute (b). In

(b) Johnson vy. Hudson, 11 East,

(a) Bartlett v. Vinor, Carthew,
180; Wetherell v. Jones, 3 B. & Ad.

252; Law v. Hudson, 2 Camp. 147;

11 East, 300; Cope v. Rowlands, 3
M&W. 149 ; "Forster v. Taylor, 5 B.
& Ad. 887.

221; Brown v. Duncan, 10 B. & C.
93 ; "Smith Vv. Mawhood, 14M. & W.
452 ; 3; Bailey v. Harris, 12 Q. B. 905.
SECT. IV. ILLEGAL CONTRACTS. 377

such cases the question arises upon the construction of the
Act of Parliament, whether the Legislature means to prohibit
the contract made or not; if it does, the purpose of the
Legislature, whether that of the revenue or otherwise, is im-
material,—the contract is legal and void, and no right of
action can arise out of it (a).

The following are some of the principal matters which
have been declared to be illegal by the statute or the com-
mon law in cases where agreements made concerning them
have been called into question, and decided to be void, on
the ground of illegality.

A wager is a contract conditional upon an event in which Wagering
the parties have no interest, except that which they create °"™™"*
by the wager. At common law wagers were not unlawful
and might give a good cause of action (b) ; but there were
wagers upon some subjects, which, upon grounds of public
policy, the law refused to recognise. Thus, wagers which
affected the interests or feelings of other persons were held
void in law, as a wager respecting the sex of another per-
son (c); a wager as to the duration of the life of Napoleon
Bonaparte was held void, as tending to encourage his
assassination (d) ; a wager on the conviction or acquittal of a
prisoner upon his trial on a criminal charge was held void
as tending to pervert the course of public justice (e); a
wager on the event of an election was held void (f); so,
a wager upon the future amount of a branch of the public
revenue (q) ; a wager made by a person that he would not
marry within six years was held void, as tending to dis-
courage marriage (/).

The statute 8 & 9 Vict. c. 109, s. 18, enacts “that all
contracts or agreements, whether by parol or in writing, by
way of gaming or wagering, shall be null and void; and
that no suit shall be brought or maintained in any Court of

(a) Ib. (d) Gilbert v. Sykes, 16 East, 150.

(b) Good v. Elliott, 3 T. R. 693 ; (e) Evans v. Jones, 5 M, & W. 77.
Cousins v. Nantes, 3 Taunt. 513, 515; (f) Allen v. Hearn, 1'T. R. 56.
Hussey v. Crickitt, 3 Camp. 168; (g) Atherfold v. Beard, 2 T. R.
Dalby v. India Life Ass. Co..15C0.B. 610; Tappenden v. Randall, 2 B. &
365, 387; 24 L. J.C. P. 2, 6. P. 467.

(ce) Da Costa v. Jones, Cowp. 729. (h) Hartley v. Rice, 10 East, 22.
Wagering
contracts.

Securities
for money
won by

wagering.

Securities
for money
won by
gaming.

378 CHAP. II]. THE MATTER OF CONTRACTS.

law or equity for recovering any sum of money or valuable
thing alleged to be won upon any wager, or which shall
have been deposited in the hands of any person to abide
the event upon which any wager shall have been made;
provided always that this enactment shall not be deemed to
apply to any subscription or contribution for any plate,
prize, or sum of money to be awarded to the winner of any
lawful game, sport, pastime, or exercise.” The proviso in
this section applies where two persons only, being the
actual players at the lawful game, subscribe a sum of money
to be paid to the winner, and protects the transaction from
the effect of the previous enactment (a). It does not apply
to a race between two horses upon the terms that both
horses should become the property of the owner of the win-
ning horse (b).

The above statute placed all wagers in the same position :
though not declared to be illegal in the sense of being for-
bidden or visited with a penalty, they were rendered void of
legal effect. Hence, under this statute securities, as bills or
notes, given in payment of or to secure money won by wager-
ing, are given for money not recoverable by law, which is
equivalent to being’ given without a valid consideration. The
consequence, in the case of bills or notes, is that they cannot
be enforced by a holder, to whom they can be proved to have
been negotiated without consideration; but they are not
affected by the general rule as to bills tainted with illegality
in their inception, which requires that a subsequent holder,
upon proof of the illegal inception of the instrument, should
show that he gave value for it (c).

Bills, notes, and other securities for money won by or lent
for gaming come under the operation of other statutes. By
the statute 9 Anne c. 14, s. 1, it was enacted ‘that all
notes, bills, bonds, etc. or other securities given or executed
by any person, where the whole or any part of the conside-
ration of such securities shall be for any money or other
valuable thing whatsoever, won by gaming or playing at

(a) Batlyyv. Marriott,5C.B.818; Ex. 248; 35 L. J. Ex. 167.
and sce Parsons vy. Alexander, 5 IB. & (c) Fitch v. Jones, 5 E. & B. 238;
B. 263; 24 L. J. Q. B. 277. 24 L. J. Q. B. 293; and see Edmunds
(b) Coombes y. Dibble, L, Rep. 1, v. Groves, 2 M. & W. 642.
SECT. IV. ILLEGAL CONTRACTS. 379

cards, dice, tables, tennis, bowls, or other game or games
whatsoever, or by betting on the sides or hands of such as
do game at any of the games aforesaid, or for the repaying
any money knowingly lent or advanced for such gaming or
betting as aforesaid, shall be utterly void and of none effect.”
And by the statute 5 & 6 Wm. IV. c. 41, s. 1, it is enacted
that all such notes bills and securities, instead of beg abso-
lutely void, ‘‘ shall be deemed and taken to have been made,
drawn, accepted, given, or executed for an illegal conside-
ration.” The statute 8 & 9 Vict. c. 109, s. 15, repealed so
much of the above statute of Anne as was not altered by the
statute of Wm. IV., that is, all of the statute except the por-
tion is above stated. The effect of these statutes is that bills
and notes given for the considerations stated therein are
illegal, and therefore void, except in the hands of a bond fide
holder without notice (a); and the illegal inception of the
instrument requires proof of the consideration (b).
Wagering policies of insurance made without any interest Wagering

in the event insured, as a policy made upon a ship, “ interest eset
or no interest,’”’ were valid contracts by the common law ().
By 19 Geo. I. c. 37, s. 1, it was enacted “ that no assurance
or assurances shall be made by any person or persons, bodies
corporate or politic, on any ship or ships belonging to his
Majesty or any of his subjects, or any goods, merchandises,
or effects, laden or to be laden on board of any such ship or
ships, interest or no interest, or without further proof of in-
terest than the policy, or by way of gaming or wagering, or
without benefit of salvage to the assurer; and that every
such assurance shall be null and void to all intents and pur-
poses.” Though a policy of insurance upon a ship without
any interest in itis void under this enactment, the interest in-
sured in a policy may be valued in the policy at a fixed sum
independently of its real value, and the insured would be
entitled to recover such fixed sum for a total loss, or a pro-

(a) Hay v. Ayling, 16 Q. B. 423; Doggett v. Catterms, 34L. J.C. P. 46.

and see Byles on Bills, 8th ed. 128; (6) Edmunds vy. Groves, 4M. & W.
and see further as to betting and the 642. :
recovery of money deposited on a bet, (c) Cousins v. Nantes, 3 Taunt. 513,

16 & 17 Vict. c. 119, 8.4, 5, the Act 515; and see Dalby v. India Ass. Co.,
for the suppression of betting-houses, 15 C. B.365; 24 L. J.C. P. 2, 6.
Wagering
policies of
insurance.

380 CHAP. III. THE MATTER OF CONTRACTS.

portional part of it for a partial loss (a). ‘ Valued policies,
though frequently in effect wagering policies, have been per-
mitted, because it has been supposed that the convenience of
them is greater than would result from the prohibition of
them ”’ (6).

The statute 14 Geo. ITI. c. 48, enacted :—By s. 1, “ that
no insurance shall be made by any person on the life of any
person, or on any other event or events whatsoever, wherein
the person for whose use, benefit, or on whose account such
policy shall be made shall have no interest, or by gaming, or
wagering ; and that every assurance made contrary to the
true intent and meaning hereof shall be null and void to
all intents and purposes whatsoever.’’—By s. 3, © that in all
cases where the insured hath interest in such life or lives,
event or events, no greater sum shall be recovered or re-
ceived from the insurer or insurers, than the amount or value
of the interest of the insured in such life or lives, or other
event or events.”

Under this statute it is held that a husband has an insur-
able interest in his wife’s life, and the wife in her husband’s
life (c) ; but the interest of a father in the life of a child is
not sufficient alone to support an insurance on the child’s
life (¢). A creditor promised his debtor that he would not
enforce payment of the debt during his life, but without any
consideration or any circumstance to make the promise
binding ; it was held that the debtor did not acquire by the
promise an insurable interest in the life of the debtor (e). A
contract of employment at a fixed salary for a certain num-
ber of years was held to give the employed an insurable in-
terest in the life of his employer (/).

The statute is satisfied if there is a sufficient interest in
the life insured at the time of effecting the surance; and
the amount is recoverable, although the interest may cease

(a) Irving v. Manning, 6 C. B. 391. (c) Reed v. Key, Peake’s Add.
As towhat constitutes an insurable in- Cases, 70 ; Huckmany. Fernie, 3 M. &
terest. see Seagrave v. Union Marine W.505.
dns. Oo., L. Rep. 1 C, P. 305, 319; 35 (d) Halford y. Kymer, 10 B. & C.
L. J. C. P. 172, 176, and the cases 724.
there cited. (e) Hebdon vy. West,3 B.& 8.579 ;

(b) Per Lord Eldon, Lucena v. 32 L. Jd. Q. B. 85.

Craufurd, 2B. & P. N. RB. 269, 822. (Sf) Hebdony, West, supra.
SECT. IV. ILLEGAL CONTRACTS. 381

before the determination of the policy (a). If the imsured
insures the same interest with several insurers, he can only
recover upon the whole the value of his interest ; and if he
has received the whole amount from one insurer, he is pre-
cluded by the 3rd section of the above statute from recover-
ing any more from the others (b).

The 7 Geo. IT. c. 8, s. 1, (commonly called Sir John Bar- Wagers on
nard’s Act) enacted that all wagers, and contracts in the na- ite ne
ture of wagers, relating to the present, or future price, or stocks.
value of any public, or joint stock, or other public securities
should be void, and subjected such contracts to various penal
and other consequences rendering them illegal. This statute
has recently been repealed by the statute 23 Vict. c. 28, leav-
ing such contracts in the same condition as other wagering
contracts, which are simply void under the statute 8 & 9
Vict. c. 109, above cited.

The traffic in public offices is unlawful at common law, as Sale of pub-
being against public policy, and is also provided against by the olives
statutes ; consequently, no valid contract can arise out of a
transaction tainted with such illegality (c). The defendant,
in consideration of £5000, promised to procure the command
of a ship in the Hast India Company’s service for another,
and to repay the same sum when any other person should be
appointed ; the contract was held void on the ground of the
illegality in the sale of the appointment, so that an action
would not lie against the defendant for not repaying the
money (d). The defendant covenanted, in consideration of
the sale to him of shares in a ship in the Hast India Com-
pany’s service, to permit the plaintiffs, the vendors of the
shares, to manage the ship and appoint the officers ; it was

tit. “Sale of Offices”; Hopkins v.

(a) Daiby v. India and London In-
Prescott, 4 C. B. 578, and the cases

surance Co.,15 C. B. 865; 24 L. J.

C. P. 2; overruling Godsall v. Boldero,
9 East, 72; 2 Smith’s b. C. 5th ed.
222; Law v. London Indisputable
Life Policy Co. 1K. & J. 223; 24
L. J. C. 196.

(b) Hebdon v. West, 3 B.& 8.579;
82 L. J. Q. B. 85.

(ce) See 5 & 6 Ed. VI. c. 16; 49
Geo. III. c. 126; Chitty’s statutes,

there cited. As to the sale and assign-
ment of public salaries and pensions,
see, Marty y. Odlum, 3 T. R. 681;
Lidderdale v. Duke Montrose,4 T. R.
248 ; Wells v. Foster, 8M. & W.149;
and authorities collected in Story Eq.
Jur. §§ 1040 d,—1040 f.

(d) Blachford vy. Preston, 8 T. R.
89.
Sale of pub-
lic offices,

The com-
mitting of
wrongs and
offences.

382 CHAP, III. THE MATTER OF CONTRACTS.

held upon the same grounds, that this covenant was illegal
and could not be enforced (a). Where a similar contract was
made with reference to the command of a ship chartered by
the East India Company, but the company were informed of
the whole transaction and approved of it, the contract was
held to be valid (8).

Contracts made in consideration of the resignation of, or
to procure the resignation of, public offices are also illegal.
The plaintiff, holding an office in a government dockyard,
made an agreement with the defendant, that in consideration
of the plaintiff procuring himself to be superannuated, the
defendant would, in case he succeeded the plaintiff, pay him
a certain share of the annual profits of the office; the agree-
ment was held illegal and void, Lord Loughborough, C.J.,
saying :—‘‘ The consideration here was that the plaintiff re-
presented himself as unfit for future service and entitled toa
pension for the past. Now the representation was either
true or false. If true the plaintiff did nothing for the de-
fendant, all he did was for his own ease and advantage ; if
false the public is deceived, the pension misapplied, and the
service injured” (c). A bond given to secure a sum of
money, being the contribution of an officer of a regiment in
the Hast India Company’s service towards a sim of money
subscribed by officers of the regiment to buy out a senior offi-
cer, was held invalid, on the ground that the money was
subscribed for the illegal purpose of procuring an officer to
resign his commission (d). An agreement made in consi-
deration of the plaintiff resigning the office of distributor of
stamps and collector of assessed taxes, and endeavouring
to procure the defendant to be appointed thereto, was held
illegal and void (e).

The commission of public offences, or private injuries, is

obviously illegal, and will not form valid matter for the con-
sideration or the promise. Thus, a printer cannot recover

(a) Card v. Hope, 2 B. & C. 661. 1 H. Bl. 327.

(b) Richardson vy. Mellish, 2 Bing. (d) Graeme v. Wroughton, 11 Ex.
229. 146; 24 L. J. Bx. 265.
(ce) Parsons v. Thompson, 1 H. Bl. (e) Hopkins v. Prescott, 4 C. B.

822; and see Garforth vy. Fearon, 578.
SECT. IV. ILLEGAL CONTRACTS. 383

the price of printing a libellous work (a). So, a promise
made, in consideration of a person publishing a libel, to in-
demnify him from the costs and damages in an action brought
against him for publishing the libel is void (4).

Compromises by private persons of prosecutions for The com-
felonies, misdemeanours, and public offences are illegal, and ae -
agreements comprising such compromises are, in general, offences.
void. In the case of Keir v. Leeman (c), the Court in deliver-
ing judgment said :—“ The principle of law is laid down by
Wilmot, C.J., in Collins v. Blantern (d), that a contract to
withdraw a prosecution for perjury, and consent to give no
evidence against the accused, is founded on an unlawful con-
sideration and void. On the soundness of this decision no
doubt can be entertained, whether the party accused were
innocent or guilty of the crime charged. If innocent, the
law was abused for the purpose of extortion ; if guilty, the
law was eluded by a corrupt compromise, screening the cri-
minal for a bribe.’ After reviewing the authorities the
Court proceeded to say :—‘‘ The result of the cases makes
it clear that some indictments for misdemeanour may be
compromised, and equally so that some cannot (e).—We
shall probably be safe in laying it down that the law will
permit a compromise of all offences, though made the sub-
ject of a criminal prosecution, for which offences the injured
party might sue and recover damages in an action. But, if
the offence is of a public nature, no agreement can be valid
that is founded on the consideration of stifling a prosecution
for it.”

In the case of Keir v. Leeman the alleged contract was,
that in consideration that the plaintiff, being the prosecutor
of an indictment against the defendant for an assault and
riot, and the obstruction of a public officer, would not pro-
ceed further on the indictment, the defendant promised to

(a) Poplett v. Stockdale,1 R.&M. UL. C. 5th ed. 310.
337. (e) See Baker v. Townsend, 7 Taunt.
(6) Shackell y. Rosier, 2 Bing. N. 422; Hdgcombe v. Rodd, 5 East, 294 ;
C. 634; and see Colburn vy. Patmore,  Elworthy v. Bird, 2 Sim. & Stu. 372,
10. M. &R. 73. in which an agreement was enforced
(c) 6 Q. B. 308. which involved the compromise of an
(d) 2 Wils. 341, 349; seel Smith’s indictment for assault.
Compound-
ing public
oflences,

884 CHAP, UI. THE MATTER OF CONTRACTS.

pay him a sum of money; the contract was held invalid, as
founded on an illegal consideration, for the offence being not
confined to personal injury, but accompanied with riot, and
the obstruction of a public officer in the execution of his
duty, which were matters of public concern, was not legally
the subject of compromise. Upon error brought in this
case (a), the judgment of the Court of Queen’s Bench was
affirmed, but with the following observations by the Court of
error upon the law :—* It is very remarkable what very little
authority there is to be found, rather consisting of dicta
than decisions, for the principle that any compromise of a
misdemeanour, or indeed of any public offence, can be other-
wise than illegal, and any promise founded on such a consi-
deration otherwise than void. If the matter were res integra,
we should have no doubt on this point. We have no doubt
that, in all offences which involve damages to an injured
party for which he may maintain an action, it is competent
for him, notwithstanding they are also of a public nature,
to compromise or settle his private damage in any way he
may think fit. It is said, indeed, that in the case of an
assault he may also undertake not to prosecute on behalf of
the public. It may be so; but we are not disposed to ex-
tend this any further.”

In the case of Coppock v. Bower (b), an action was brought
on a promise to pay money in consideration of not proceed-
ing with a petition presented to the House of Commons
against the return of a member on the ground of bribery ;
it was held that the consideration was illegal and the con-
tract void; such petition, according to Lord Abinger, C.B.,
“is a proceeding instituted not for the benefit of the indi-
viduals, but of the public—and the only interest in it which
the law recognizes, is that of the public.” <A bond recited
that the defendant had been guilty of erecting nuisances,
and that the plaintiff, who was clerk of the peace, had by
order of Quarter Sessions prepared bills of indictment
against the defendant, and consented not to prefer the
same upon the defendant entering into the bond, which
was conditioned that if the defendant removed the nui-

(az) 9Q. B. 871. (b) 4M, & W. 361,
385

sances the bond should be void; it was held that the bond
was legal, and might be enforced upon a breach of the con-
dition (a).

SECT. IV. ILLEGAL CONTRACTS.

The maintenance of a suit, without having any interest in
the matter of the suit; also bargaining for a share in the
matter of a suit in consideration of maintaining it, which
is called champerty, are offences at the common law (bd);
and agreements embodying transactions of that kind are
void (c). An agreement between the plaintiff and the de-
fendant that legal proceedings should be taken by the de-
fendant for the recovery by him of certain property, and
that the plaintiff should supply him with evidence that
should be sufficient to enable him successfully to recover it,
and, in consideration thereof, that the plaintiff should have
a portion of the property, if recovered, was held void, as
amounting to that species of maintenance which is called
champerty, namely, the unlawful maintenance of a suit in
consideration of a bargain for a part of the thing, or some
profit out of it (d). But an agreement to furnish evidence
where no suit was pending, and without any stipulation that
a suit or proceedings should be instituted, though bargain-
ing for a portion of the property in case the title to it should
be established, would be valid (e).

An assignment by a seaman of part of his prize money,
pending the prize suit, to his prize agents, upon considera-
tion of their carrying on the suit and indemnifying him
against the costs and charges, was declared to be void, as
amounting to that species of maintenance which is called
champerty (f). An agreement undertaking the ascertain-
ment and establishment of a right to property for another,

(a) Fallowes v. Taylor, 7 T. RB.
475.

(2) Co. Lit. 368 6; 4 Bl. Com. 135;
Pechell v. Watson, 8 M. & W. 691;
Flight v. Leman, 4 Q. B. 883; Cook
v. Field, 15 Q. B. 460, 471; Stanley
vy. Jones, 7 Bing. 369, 377; Findon v.
Parker, 11 M. & W. 675, 682.

(ce) See Bell v. Smith, 5 B. & C.
188; Williamson v. Henley, 6 Bing.
299; Stanley v. Jones, 7 Bing. 369 ;

Shackell v. Rosier, 2 Bing. N. C. 634;
Harrington v. Long, 2 My. & K. 590;
Story, Eq. Jur. § 10409; 1048 ef seq. ;
and see the cases cited in Coop. C.P.
338.

(d) Stanley v. Jones, 7 Bing. 369 ;
Sprye v. Porter,7 EB. & B. 58; 26
L. J. Q. B. 64.

(e) Tb.

(f) Stevens v. Bagwell, 15 Ves.
139.

20

Mainte-
nance and
champerty.
Mainten-
ance and
champerty.

386 CHAP. II, THE MATTER OF CONTRACTS.

which was supposed to be uncertain and obscure, on the
terms of paying all the costs and having half the property
obtained, was held illegal and set aside in equity, as at least
savouring of champerty (a). The assignment of a right
which can only be reduced into possession by a suit, as, a
right to property to be derived from setting aside a trans-
action on the ground of fraud, is also void in equity, as
savouring of champerty (0).

An agreement by an attorney, to save a party harmless
from the costs of an action, in consideration of his retaining
half of the sum to be recovered, was held illegal and void (¢).
The purchase by the attorney of the plaintiff in a suit of the
whole or part of the property to be recovered in the suit,
pendente lite, is illegal and void (d). Where the attorney,
having the conduct of a suit, after verdict but before judg-
ment, purchased the benefit of the verdict of the plaintiff,
the purchase was held void (e). A contract between the
plaintiff in a suit and his attorney that the attorney should
advance money for the conduct of the suit, in consideration
of receiving, over and above his legal costs and charges, a
sum of money according to the interest and benefit to be
recovered in the action, was held void (f). So, a stipulation
by the attorney for the plaintiff in a suit that he should have
£5 per cent. commission on the gross amount of property
recovered, in addition to his costs, was held void (g). But
it is not illegal for the attorney to take a security upon the
property to be recovered in the action for past advances
made towards the prosecution of the suit (h).

An agreement between several persons to combine in
resisting actions brought against each of them, founded upon
claims of the same nature, does not amount to maintenance
and is not illegal (¢). An agreement enabling the purchaser

(a) Reynell v. Sprye,1 De G. M. (e) Ib.
& G. 660; 21 L. J. C. 633. (f) Earle v. Hopwood, 9 C. B.
(6) Prosser y. Edmonds, 1 Y.& N.S. 566; 30L.J. 0. P. 217.
Coll. Ex. 481; and see Wilson y. (9) Pince v. Beattie, 32 L. J. 0.734,
Short, 6 Hare, 866; Dickinson v. (h) Anderson v. Radcliffe, E. B. &
Burrell, L. Rep. 1 Eq. 337. E. 806 ; 819; 28 L. J. Q. B. 32; 29 id.
(c) Re Masters, 4 Dowl. 18. 128.

(d) Stimpson v. Lamb, 7 HE. & B. (¢) Findon vy. Parker, 11 M. & W.
84; 26 L.Jd.Q.B, 121, 675.
Q

SECT. IV. ILLEGAL CONTRACTS. 387

of an estate to recover for rent due, and injuries done to it,
previously to the purchase, and to use the seller’s name to
bring actions for that purpose, was held not to constitute
champerty (a).

A contract which restrains one of the parties entirely from Contracts
carrying on his trade or business, or which restrains him ¢f eae
from carrying on his trade or business within certain limits
of an unreasonable extent, is void on the ground of public
policy. ‘The rule, as laid down by Lord Macelesficld and
Lord Chief Justice Willes (b), is, that total restraints of
trade, which the law so much favours, are absolutely bad,
and that all restraints, though only partial, if nothing more
appear, are presumed to be bad; but if the circumstances
are set forth, that presumption may be excluded, and the
Court are to judge of those circumstances, and determine
whether the contract be valid or not (c). Contracts in re-
straint of trade are, in themselves, if nothing shows them
to be reasonable, bad in the eye of the law” (d).—“It is on
erounds of public policy alone that these contracts are sup-
ported or avoided. Contracts for the partial restraint of
trade are upheld, because it is for the benefit of the public
at large that they should be enforced ;—Such is the case of
the disposing of a shop in a particular place, with a contract
on the part of the vendor not to carry on a trade in the same
place ;—And such is the class of cases of a tradesman,
manufacturer, or professional man, taking a servant or
clerk into his service, with a contract that he will not carry
on the same trade or profession within certain lunits”’ (e).

Before the case of Hitchcock v. Coker a notion prevailed
that the restraint, in order to be allowed by law, must not
only be reasonable in extent, but must also be supported
by an adequate consideration given for it, that is to say, a
consideration equal in value to that which the party re-

(a) Williams vy. Protheroe, 5 Bing. (d) Mallan vy. May, 11 M. & W.
309. 653, 664; Horner v. Graves,7 Bing.
() Gunmakers’ Co.v. Fell, Willes, 735,744; see per Maule, J., Proctor

vy. Sargent, 2 M. & G. 20, 37.

388.
(c) Mitchell v. Reynolds, 1 P. Wms. (e) Mallan y. May, 11 M. & W.
181; 1 Smith, L. C. 5th ed. 340. 658, 665.

Ae?
Contracts
in restraint

of trade,

388 CHAP. II]. THE MATTER OF CONTRACTS.

strained loses by the restraint under which he places him-
self; but that doctrme was overruled in the above case,
where it was decided to be sufficient that there was a legally
valid consideration, and that the value of it as an equivalent
to the restraint was a matter to be left to the agreement of
the parties, and one which could not be inquired into by the
Court (a).

What degree of restraint is reasonable is to be gathered
from the following judicial opinions :—‘‘ We do not see how
a better test can be applied to the question whether reason-
able or not, than by considering whether the restraint is
such only as to afford a fair protection to the interests of
the party in favour of whom it is given, and not so large as
to interfere with the interests of the public. Whatever re-
straint is larger than the necessary protection of the party
can be of no benefit to either, it can only be oppressive ;
and if oppressive, it is, in the eye of the law, unreasonable.
Whatever is injurious to the interests of the public is void,
on the grounds of public policy.—The application of the
rule can only be at last with reference to the particular
case”’ (0).

In the case of Ward v. Byrne (c), Parke, B., reduced the
above test to a more practical form :—‘“ A restraint prohi-
biting a party from carrying on trade within certain limits
of space would be good, and a contract entered into for the
purpose of enforcing such an agreement as that would be
valid; and the limit of the space is that which, according to
the trade he carries on, is necessary for the protection of
the party with whom the contract is made; and all the
cases cited appear to turn on the question as to the limit
of space within which the restriction should extend. Now
where a limit as to space is imposed, the public, on the one
hand, do not lose altogether the services of the party in
the particular trade,—he will carry it on in the same way

(a) Hitchcock y. Coker,6 A.& EB. Q. B. 185, 190.
438, 456; and see per Alderson, B., (0) Per Cur. Horner v. Graves, 7
Pilkington v. Scott, 15 M. & W.657, Bing. 735, 743; Hitchcock v. Coker,
660; per Parke, B., Green v. Price, 6 A. & EB. 488, 454; Tallis v. Tallis,
13 M. & W. 695, 698; Sainter v. 135. & B. 391, 410; 22 L. J. Q. B.
Ferguson, 7 C. B. 716; Tallis vy. 185, 190.
Tallis, 1 BH. & B, 391, 410; 22 L. J. (c) 5 M, & W. 548, 561.
389

elsewhere ; nor within the limited space will they be de- Contracts
prived of the benefit of the trade being carried on, because ae
the party with whom the contract is made will most pro-

bably within those limits exercise it himself. But when a
general restriction, limited only as to time, is imposed, the

public are altogether losers, for that time, of the services of

the individual, and do not derive any benefit whatever in
return: and looking at the authorities cited upon this sub-

ject, it does not appear that there is one clear authority in

favour of a total restriction on trade, limited only as to

time.” :

Accordingly, a restriction of carrying on trade, unlimited
in point of space, however limited in point of time, is, in
general, held to be unreasonable, as being more extensive
‘than the interest of the party with whom the contract is
made can possibly require (a). Where a person makes an
engagement with an employer to work for him at a certain
trade or business, and restrains himself from carrying on
that trade or business for any other person or in any other
way during the employment only, the restraint, so modified,
is binding (0).

It is no objection to a stipulation in restraint of trade,
reasonably limited in point of space, that it is unlimited in
point of time (c). It is not unreasonable that the duration
of the restriction should not be limited to the life of the
person for whose benefit it is made, or to the time during
which he may carry on the business, as it may be neces-
sary, in order to secure the value of his business to a pur-
chaser or to his representatives after his death, that the
restriction should continue for the whole life of the party
upon whom it is imposed (d). Accordingly, a bond to the
effect that the obligor should not practise as a surgeon at a
certain place at any time without the consent in writing of

SECT. IV. ILLEGAL CONTRACTS.

(a) Ward v. Byrne, 5 M. & W.
548; and see Mallan v. May, 11M.
& W. 653, 664.

(b) Pilkington vy. Scott, 15 M.&
W. 657; Hartley v. Cummings, 5 C.
B. 247; Wallis v. Day, 2 M. & W.
273, where the cngagement and re-
straint was for life; and see Gale v.

Reed, 8 East, 80.

(ce) Hitchcock v. Coker,6 A. & E.
438 ; Pemberton v. Vaughan, 10 Q.
B. 87; Elves v. Crofts, 10C. B. 241,
259.

(d) Hitchcock v. Coker, 6 A. &
E. 488; Pemberton v. Vaughan; 10
Q. B. 87. ‘
390 CHAP. II]. THE MATTER OF CONTRACTS.

Contracts the obligee, was held not to be restricted to the life of the

in restraint

of trade.

obligee, but to extend to that of the obligor (a). So, a cove-
nant on the assignment of the premises and the goodwill
of a trade that the seller would not at any time thereafter
carry on the same trade within five miles of the premises,
was held not to cease upon the covenantee ceasing to carry
on the business (b).

The duration of the restraint may, however, sometimes
be material in deciding upon the unreasonableness of a con-
tract of this kind ; “ for, although where it is once held thata
restriction is unreasonable in point of space, the shortness
of the time for which it is imposed will not make it good,
yet where the question is, whether the restraint is unrea-
sonable or not, in point of space, that which would be un-
reasonable were it to continue for any length of time, may
not be so when it is to last only for a day or two”’ (¢).

It is a question of law for the Court to determine in each
particular case whether the restraint be reasonable or not (d).
The following are some instances, besides those above
cited, in which the Courts have given decisions upon con-
tracts in restraint of trade:—A contract by a surgeon or
apothecary not to practise for fourteen years within ten
miles of a certain place was held reasonable (e) ; so, a con-
tract in the same business not to practise within twenty
miles of a certain place (f). A contract in the same business
not to practise or reside within two anda half miles of a
certain house in London, was held reasonable and obliga-
tory, both as to the practice and the residence (g). A con-
tract not to practise as a dentist in London was held rea-
sonable (/); but a contract not to practise as a dentist within
100 miles of York was held unreasonable and void (’).—A
contract not to practise as an attorney and solicitor in

(a) Hastings v. Whitley, 2 Ex. 611.

(b) Elves v. Crofts, 10 C. B. 241;
and see per Wilde, C.J., Sainter v.
Ferguson,'7 ©. B. 716, 718.

(c) Per Tindal, C.J., Proctor v.
Sargent, 2M. & G. 20, 33.

(d) Per Cur. Mallan vy. May, 11
M. & W. 653, 665; Zallis v. Tallis,
If. & B. 391, 413; 22 L. J. Q. B.
185, 191.

(e) Daris v. Mason, 5 T. R. 118.

(f) Hayward v. Young, 2 Chit.
407; and see Sainter v. Ferguson,
70. B. 716; Carnes vy. Nisbett, 31
L. J. Ex. 273.

(g) Atkyns v. Kinnier, 4 Ex.776.

(A) Mallan v. May, 11M. & W.
653.

(t) Horner v. Graves, 7 Bing. 735.
SECT. IV. ILLEGAL CONTRACTS. 891

London and within 150 miles was held good (a); and a con- Contracts
tract not to practise as an attorney and solicitor in any part 0% restraint
of Great Britain for twenty years was held good by Lord
Langdale, M.R. (b).—A contract not to exercise the business
of a carrier between London and certain places in Norfolk and
Suffolk, was held good (c) ; so, a contract not to run a stage-
coach on a certain road between certain hours (d).—A con-
tract not to carry on the business of a cowkeeper within
five miles of a spot in London was held reasonable (e) ; so,
a contract not to carry on the trade of a butcher within five
miles of a certain place (f).—A covenant not to carry on the
trade of a perfumer within the cities of London and West-
minster, or within the distance of 600 miles from the same,
was held to be unreasonable and void, as to the restriction
beyond the cities of London and Westminster (q).

A bond restraining the obligor from carrying on a trade
within half a mile of the house of the obligee, or of any
other house that the obligee his executors or administrators
should remove to for the purpose of the said trade, seems to
have been considered void as to the latter part, as possibly
extending over the whole country (A). By articles of agree-
ment between the plaintiff and the defendant, in which the
defendant.agreed to become assistant to the plaintiff in his
business of surgeon-dentist for a term of four years, the de-
fendant covenanted that after the expiration of the term he
would not carry on that business in London, or in any of
the towns or places in England or Scotland where the
plaintiff might have been practising before the expiration of
the defendant’s service; it was held that the covenant as to
London was valid, but that the rest of the covenant was
void as imposing an unreasonable restraint, exceeding what
the interests of the plaintiff could reasonably require, and
giving him the power of preventing the defendant from

(a) Bunn v. Guy, 4 Hast, 190. (e) Proctor v. Sargent, 2 M. &
(b) Whittaker v. Howe, 3 Beav. G. 20.

383 ; see Nicholls v. Stretton, 10 Q. (f) Elves v. Crofts, 10 C. B. 241.

B. 346, 353. (g) Green v. Price, 13M. & W.
(ec) Archer v. Marsh, 6 A. & E. 695; 16 id, 346. :

959. (h) Chesman v. Nainby, 2 L. Raym.

(d) Leighton v. Wales,3M.& W. 1456.
545.
Contracts
in restraint
of trade.

Contracts
infringing
regulations
of trade.

392 CHAP. ITI, THE MATTER OF CONTRACTS.

practising anywhere (a). A covenant by an attorney’s ar-
ticled clerk not to act as attorney for any person who had
already been, or who thereafter should become a client of
the plaintiff, was held to be unreasonably large, but valid
as to the persons who were clients before and during the
defendant’s articles (b).

An agreement not to practise as an attorney within seven
miles from the plaintiff’s office, was construed as intending
that the distance should be measured in a straight lme upon
a horizontal plane, and not by the nearest practicable mode of
access (c). Upon a covenant by the defendant not to prac-
tise as a surgeon or reside within two miles and a half of a
certain house in London, “ measuring by the usual streets
or ways of approach thereto,” it was held that the plaintiff
was entitled to have the distance measured, not by the
most frequented public ways, but by any of the usual public
ways, and that the defendant, by residing in a house beyond
that distance if measured by the most frequented public
thoroughfare, and within it if measured by a thoroughfare
less frequented, had committed a breach of the covenant («/).

A bond entered into by the mill-owners of a certain dis-
trict, conditioned to carry on their works in regard to wages,
and the engaging of labourers, and times of work, according
to the resolutions of a majority of the mill-owners during a
period of twelve months, was held void, as being in restraint
of trade, and so contrary to public policy (e).

Some particular trades and businesses are regulated by
special statutes, which must be observed in all contracts
made in such trades and businesses, of which the following
are examples :—The business of a pawnbroker is regulated
by the Pawnbrokers Act, 39 & 40 Geo. III. c. 99; and if a
pawnbroker lends money upon the security of goods, with-
out giving a note as required by s. 6 of that Act, the con-
tract is void, and he cannot recover the loan (f); and, the

(a) Mallan vy. May, 11M. & W. (d) Atkyns v. Kinnier, 4 Ex. 776.
653 (e) Hilton v. Eckersley, 6 E. & B.
x Nicholls vy. Stretton, 10Q.B. 47,66; 25 L. J. Q. B. 199.
(f) "dtlenborough y. London, 8 Ex.
are Duignan y. Watker, 1 Johns, 661.
446; 28 L. J. C. ban
393

contract being void, the pawnbroker’s lien on the goods for
the amount of the loan is void also (a).—The statute 17
Geo. IIT. c. 42, ss. 1, 2 enacted that bricks shall be made of
a certain size, and imposed a penalty for default; the
plaintiff having sold and delivered bricks which were under
the statutable size, it was held that he could not recover the
price (4).—The statute 1 & 2 Vict. c. ci. s. 8 enacted that
upon a sale of coals delivered within twenty-five miles of the
general post office, the seller should deliver to the purchaser
a ticket in a certain form, and in default of so doing should
be lable to a penalty of £20; it was held that a seller of
coals, having neglected to deliver a ticket with certain coals
sold and delivered, could not recover the price (c).—The
statute 36 Geo. III. c. 86, s. 3 enacted that every farmer, etc.,
shall pack butter for sale in vessels marked and branded as
required by the Act, under a penalty of £5 for every default;
it was held that the Act prohibited the sale of butter in
vessels not properly marked, and a farmer having sold
butter in such vessels, the sale was void, and he could not
recover the price (d).—By the statute commonly called the
Tippling Act, 24 Geo. IT. c. 40, s. 1, amended by 25 & 26
Vict. c. 38, the sale on credit of spirits in quantities of less
value than twenty shillings to be consumed on the premises
is prohibited; consequently, a debt for spirits sold contrary
to the Act is void and cannot be recovered (e).—By 9 Geo.
IV. c. 61, s. 18, the sale of exciseable liquors sold by retail to
be consumed on the premises can only be carried on upon
premises duly licensed; consequently, a sale of such liquors
upon unlicensed premises is void (f).—By the statute.5 & 6
Wm. IV. c. 63, s. 3, regulating the imperial standard of
weights and measures for the sale of goods, the use of
weights and measures different from the imperial standard
is prohibited; consequently, contracts for the sale of goods
by weights and measures contrary to the statute are void (q).

SECT. IV. ILLEGAL CONTRACTS.

(a) Fergusson v. Norman, 5 Bing.
N.C. 76; 6 Scott, 794.

(b) Law vy. Hodson, 2 Camp. 147 ;
11 East, 300.

(c) Cundell v. Dawson, 4 C. B.376.

(d) Forster v. Taylor, 5 B. & Ad.
887.

(e) Hughes v. Done, 1 Q. B. 294;

Scott v. Gilmore, 3 Taunt. 226; and
see post, p. 410.

(f) Hamilton v. Grainger, 5 H. &
N. 40.

(9) Rosseter v. Cahlman, 8 Ex. 361;
Jones v. Giles, 10 Ex. 119; 11 Ex.
393 ; Hughes v. Humphreys, 3 VE. &
B. 954.
Contracts
by disquali-
fied per-
sons.

394 CHAP. ITI, THE MATTER OF CONTRACTS.

—A printer cannot recover the price of printing a book un-
less he has complied with the provisions of the statute 39
Geo. III. c. 79, s. 27, by affixing his name to it (a) ; nor can
he recover the price for printing unless his printing press
is duly registered as required by statute (b).—The sale of
game is regulated by ] & 2 Wm. IV. c. 32, and a contract
made contrary to the provisions of that statute is void (¢).

Persons carrying on certain trades and businesses are re-
gulated by special statutes ; and the contracts made by them
in those trades and businesses, without conforming to such
statutes, are illegal and void, of which the following are
examples :—By the statute 6 Anne, c. 16, it is required that
all brokers within the City of London shall be duly licensed ;
and if a person exercises the business of a broker without
being licensed according to the statute, he cannot maintain
an action for his services and commission (d).—The statute
46 Geo. III. ec. 48, s. 5, enacts that no person shall exercise
the calling of an appraiser or act as such without taking out
a license; consequently, it is held that if a person acts as
an appraiser without being licensed as required by the statute
he cannot recover the remuneration for his services (e).—A
manufacturer of and dealer in tobacco, not duly licensed as
required by the statute 6 Geo. IV. c. 81, cannot recover the
price of tobacco sold by him (f).—The Medical Act, 21 &
22 Vict. c. 90, s. 382, enacts that no person shall be entitled
to recover any charge for medical or surgical advice, atten-
dance or medicine, unless he shall prove upon the trial that
he is registered under that Act. This enactment does not
render the contract by an unregistered practitioner void, but
only requires him to register and prove his registration at
the trial; if he can prove this, it is no objection to his claim,
that he was not registered at the time of giving his atten-
dance and advice, or even when he issued the writ in the
action (9).

(a) Bensley v. Bignold,5 B.& Ald. 395; 27 L. J. C. P.196, 335.
335. (e) Palk v. Force, 12 Q. B. 666.

(b) Day v. Hemming, 9 W. BR. Q. (f) Smith v. Mawhood, 14 M. & W.
LB. 703. 452; and see Johnson vy. Hudson, 11

(ce) Porritt v. Baker, 10 Ex. 759. East, 180.

(d) Cope v. Rowlands, 2 M. & W. (9) Turner vy. Reynall, 14.0. B. N.

149; Sintth vy. Lindo, 4 0. B.N.S. 8.328; 321.0. C. P. 164.
SECT. IV. ILLEGAL CONTRACTS. 395

By the statutes regulating the practice of attorneys, they
are required to be admitted and enrolled as attorneys and to
take out a stamped certificate; and if a person acts or does
business as an attorney, without having qualified himself
according to those statutes, he is not entitled to recover
any fee or reward for the services rendered or the business
done (a). By the Act for consolidating and amending the
laws relating to attorneys and solicitors (4), an attorney who
permits his name to be used for the profit of an unqualified
person, or does any act to enable an unqualified person to
act as an attorney, is able to be struck off the roll; by
virtue of this enactment it is held that an agreement by an
attorney to take into partnership in the business a person
not admitted as an attorney is void on the ground of ille-
gality (c). The statute 44 Geo. III. c. 98, s. 14, imposes a
penalty upon persons drawing conveyances or deeds, except
those who are properly qualified by law for that purpose ; it
was held that a person not properly qualified could not re-
cover for his services in drawing and preparing conveyances
and deeds (d).

Trading with an enemy without the license of the Crown Trading
is illegal; and the contracts made with an enemy during ee
war are void (ce).

A policy of insurance on ships or goods of an enemy is
illegal (f). So, a policy of insurance on goods bought by a
British subject in an enemy’s country, and shipped from
a port of that country in a neutral ship, was held illegal
and void (g). A contract of insurance on a foreign ship

or goods against British capture is illegal; and every in-

(a) See 6 & 7 Vict. c. 78, ss. 2, 26,
35 ; 23 & 24 Vict. c. 127, 8. 26.

(6) 6 & 7 Vict. c. 73, 8. 32, re-
enacting 22 Geo. II. ¢. 46, s. 11.

(c) Williams v. Jones, 5 B.&C. 108.

(d) Taylor v. Crowland Gas Co.,10
Ex. 293.

(e) Potts v. Bell, 8 T. R. 548;
Willison v. Patteson, 7 Taunt. 489 ;
and see per Gibbs, C.J., Antoine v.
Morshead, 6 Taunt. 237, 239; Cle-

mentson v. Blessig, 11 Ex. 135, 141,
n (a); aa to the license of the Crown
see Wells v. Williams, 1 L. Raym.
282; 1S8alk.46 ; Kensington v. Inglis,
8 East, 273 ; Usparicha v. Noble, 13
East, 332; Mennett vy. Bonham, 15
East, 477; Boulton v. Dobree, 2
Camp. 163.

(f) Bristow v. Towers, 6 T. R. 35 ;
and see Brandonv. Nesbitt, 6 TV. R.23.

(9) Polts vy. Bell, 8 V. R. 548.
Trading
with an
enemy.

396 CHAP. IIT. THE MATTER OF CONTRACTS.

surance on a foreign ship or goods impliedly excepts such
capture (a).

A contract made by an agent in this country on behalf of
a foreign enemy is illegal; and the agent cannot recover
upon it, though it was made in his own name, and though
the principal was indebted to him in a greater amount than
the value of the contract (6).

A British subject, or the subject of a neutral state, volun-
tarily residing in a hostile country and trading there, is in
the same position, in this respect, as an alien enemy, and
contracts made with him are illegal (c). A prisoner of war
detained in a hostile country is not in the same position,
and has been held liable on a bill accepted by him whilst a
prisoner (d). A prisoner of war in this country was held
entitled to recover upon a contract for services rendered by
him whilst a prisoner (e). A British subject, domiciled in a
foreign neutral state, is so far assimilated to a subject of
that state that he may lawfully trade with another foreign
state, though the latter state is at war with this country ;
and his contracts made in the course of such trade will be
recognized here (f); and it seems that, if domiciled in a
hostile state, he may lawfully trade with a neutral state (9).

A ransom bill given to an enemy to redeem a ship or
goods captured in war was valid, and an action might be
brought upon it after the return of peace, until the passing
of a statute by which such contracts were rendered illegal
and void, unless in the case of extreme necessity to be al-
lowed by the Court of Admiralty (h).

It is arule of law that an enemy cannot sue in the courts

(a) Furtado v. Rodgers, 3B. & P.
191; Kellner v. Le Mesurier, 4 East,
396; Gamba v. Le Mesurier, 4 Hast,
407. Whether the insurer is liable for
capture by the government of the
foreigner insured, see Conway v.
Gray, 10 Kast, 536; Aubert v. Gray,
3B. & 8. 163, 169; 32 L. J. Q. B. 50.

(2) Brandon vy. Nesbitt, 6 T. R. 23.

(c) Willison v. Patteson, 7 Taunt.
439; M‘Connell vy. Hector, 3 B. & P.
113; O'Mealey v. Wilson, 1 Camp.
482; and sce Roberts v. Hardy, 3 M.
& 8. 533; Albretcht y. Sussman, 2V.

& B. 323.

(d) Antoine v. Morshead, 6 Taunt.
237; Daubuz vy. Morshead, 6 Taunt.
332.

(e) Sparenburgh v. Bannatyne, 1
B. & P. 1638.

(f) Bell v. Reid, 1M. & 8. 726.

(g) Hourtet vy. Morris, 3 Camp.
303.

(hk) 22 Geo. III. c. 25; 45 Geo. ITT.
c. 72; see Ricord vy. Bettenham, 3
Burr. 1734; Cornu v. Blackburne,
Doug. 641; Yates v. Hall, 1 T. R.
73; Webb v. Brooke, 3 Taunt. 6.
SECT, IV. ILLEGAL CONTRACTS. 397

of this country during the continuance of war (a), except by Trading

with an
license from the Crown (b) ; therefore, an enemy, during enemy.
war, cannot commence an action on a contract entered into
before the war began, nor continue an action commenced
before the war began (¢).

The plea that the plaintiff has become an enemy since the
making of the contract is not a plea in bar, but only a plea
in abatement of the action, showing the disability of the
plaintiff to sue during the continuance of the war (d). Upon
this principle, an enemy was admitted to prove a debt under
a bankruptcy, the dividend being reserved (e). The plea, that
the plaintiff was an enemy at the time of making the contract,
is a plea in bar, because a contract with an enemy is illegal
and void (f) ; and a contract made with an enemy during war
does not become valid upon the return of peace (g).

The declaration of war may make the performance of a
previous contract illegal, and so discharge the contract ;
thus, a charterparty to load a cargo at a foreign port was
held to be discharged by a declaration of war, because it be-
came impossible for the charterer to provide the cargo with-
out trading with the enemy (h). The defendant undertook
to pay for goods to be shipped by the plaintiff to a subject
of a foreign country, with which country war was subse-
quently declared, but by an order in council the shipping of
goods to that country was allowed for six months after the
declaration of war, within which time the plaintiff shipped
the goods; it was held that there was no illegality in per-
forming the contract and that the defendant was liable to
pay forthe goods shipped (‘).

(a) See per Gibbs, O.J., Antoinev. L. J.C. P. 140.

Morshead, 6 Taunt. 237, 239; Alci- mt Ex p. Boussmaker, 13 Ves.

nous v. Nigreu, 4 EB. & B, 217 ; 24 L.

J.Q. B. 19. eR Ante, p. 395; Brandon vy. Nes-
(t) Wells v. Williams,1 L. Raym. itt, 6 T. R. 23.

282; 1 Salk. 46. @) Willison v. Patteson, 7 Taunt.
(ce) Le Bret v. Papillon, 4 Hast, 439

502. (h) Esposito v. Bowden, 4 EH. & B.

(d) Harman v. Kingston, 3 Camp. 963; 7 ib. 763; 24. J. Q. B. 210;
150,153; Flindt v. Waters, 15 Kast, 27 ib. 17; and 86 Reid vy. Hoskins, 5
260; the Court refused to allow a E.& B.729; 6H. & B. 258; 25 L.
defendant to plead such a plea after J. Q. B. 55; 26 70. 5.
accepting terms to plead issuably. (i) Clementson v. Blessig, 11 Ex.
Shepeler v. Durant, 14 C, B. 582; 28 185,
Restraint
of mar.
riage.

398 CHAP. III], THE MATYER OF CONTRACTS.

A charterparty was made for the carriage of goods from a
port of this country to a foreign port, and before sailing an
embargo was laid by the government of this country on
shipping proceeding to the foreign port until further order
of council ; it was held that the embargo only suspended, and
did not dissolve the contract ; and that when the embargo
was removed the validity of the contract was restored (a).
An insurance on foreign ships or goods is rendered illegal and
void, as against British capture, by a declaration of war
with the foreign country (d).

Restrictions on the freedom of marriage are contrary to
public policy, and agreements creating such restrictions are
void. A covenant uot to marry with any person besides the
covenantee, there being no promise to marry the covenantee,
nor any reciprocal promise to marry on the part of the co-
venantee, was held void upon this ground (c). A bond given
by a widow, conditioned to pay a sum of money in case she
should marry again, was held void (d). A wager made by
a person that he would not marry within six years was held
to be void, on the ground that it operated in restraint of
marriage (ec). Buta restriction against marriage with one
specified person is not illegal (/').

A contract to procure, or bring about a marriage is-void ;
accordingly, a bond conditioned to pay £500 within three
months after the obligor should be married to a certain lady
of fortune, being made for the purpose of procuring such
marriage, was decreed in equity to be void (9),

A deed made in order to provide for the future separa-
tion of husband and wife is illegal (h); but a deed made
upon the occasion of an actual separation, providing for the

(a) Hadley v. Clarke, 8 T. R. 259. (f) Topham v. Duke of Portland,
(b) Furtado vy. Rodgers, 3B. & P. 32 L. J.C. 81, 92; and see further as
191; Gamba v. Le Mesurier, 4 Haat, to contracts in restraint of marriage,
407 ; ante, p. 396. Atkins y. Farr, 1 Atk. 287; Wood-
(ec) Lowe v. Peers, 1 Burr. 2225. house v. Shipley, 2 Atk. 535; Box v.
(d) Baker vy. While, 2 Vern, 215; Day, 1 Wils. 59; Cock v. Richards,
see Newton v. Mursden, 2 J. & HW. 10 Ves. 437.
356; 31 L. J. C. 690. (y) Hall v. Potter, 3 Lev. 411.
(e) Hartley vy. Rice, 10 Hast, 22 ; (h) Lindley v. Marquis of West-
see ante, p. 377. imeath, 6 B, & C. 200.
SECT. IV. ILLEGAL CONTRACTS. ~ 399

rights and liabilities of husband and wife living separately,
is not illegal (a).

The Court of Chancery will decree specific performance of
an agreement to execute a lawful deed of separation (6),
and will enforce the covenants in such separation deed (c). A
covenant by the husband not to sue for the restitution of
conjugal rights is a lawful and usual covenant in such
deed (d), and will be enforced in equity by injunction (e).
But in the Divorce Court, following the law of the Necle-
siastical Courts, deeds providing for husband and wife
living separately are held illegal, and are not recognized (f);
and an agreement to live separate is no answer to a suit for
restitution of conjugal rights (g) ; but an agreement not to
institute proceedings in the Divorce Court is a bar to a suit
for divorce in respect of previous misconduct (h).

The compromise of a suit for a divorce in consideration
of a sum of money to be paid to the petitioner by the co-
respondent is against public policy ; and the Court of Chan-
cery will not entertain a bill for the specific performance of
such a contract (i).

Agreements concerning certain matters have been held Immoral
void, as being contrary to the rules of morality; thus, go
promise made by a man to a woman in consideration of
future illicit cohabitation is void(j). A promise made in
consideration of the cessation of illicit cohabitation is void
for want of consideration (k); so also, a promise made in
consideration of past illicit cohabitation, or as a compensation
for past seduction (1). In the two latter cases the promises

(a) Jones v. Waite, 5 Bing. N. C.
341; Wilson v. Mushett, 3 B. & Ad.
743; Randlev. Gould, 8 E. & B. 457 ;
27 L. J. Q. B. 57; Jee v. Thurlow,
2B. & C. 547.

(6) Wilson vy. Wilson, 5 H. L. C.
40; 23 L. J. C. 697.

(c) Sanders vy. Rodway, 16 Beav.
207; 22 L. J. C. 230; Webster v.
Webster, 4 De G. M. & G. 487;
22 L. J. C. 837.

(@) Wilson v. Wilson, 5H. L. C.
40; 23 L.J. C. 697.

(¢) Hunt vy. Hunt, 31 L. J. C. 161.

(f) Mortimer v. Mortimer, 2 Hage.
318; and see Hunt v. Hunt, 31 L. J.
C. 161, 177.

(g) Spering v. Spering, 32 L. J. P.
& M. 116.

(2) Rowley v. Rowley, 33 L. J. P.
& M. 54,

(‘) Gipps v. Hume, 31 L. J.C. 87.

(7) R. v. Northwingfield, 1 B. &
Ad. 912; Walker v. Perkins, 1 W.
Bl. 517; 3 Burr. 1568.

(k) Binnington vy, Wallis, 4 B. &
Ald. 650. ;

(2) Beaumont vy. Reeve, 8 Q. B. 483.
4.00 CHAP. IIT, THE MATTER OF CONTRACTS.

are void, not on account of the illegality of the consideration,
but on account of the absence of all consideration ; therefore a
bond given under similar circumstances would be valid (a).
A bond given by the father of illegitimate children to the
mother to secure her an annuity, in consideration of her
giving up the care and custody of the children, was held to
be founded on a valid consideration, and not to be a volun-
tary bond (b).

Upon similar grounds a printseller cannot recover the
price of libellous and immoral publications sold by him (¢) ;
and a printer cannot recover the price of printing a libellous
and immoral work (d).

Contracts An agreement in which no illegality appears and of which

made for an

illegal pur- Neither the consideration nor the promise in itself imports

Poze any illegality, may, nevertheless, be made for an illegal pur-
pose; and the agreement, though unobjectionable in its
terms, is then rendered void by the illegality of the purpose
for which it is made. There must be a participation in the
illegal purpose for which the agreement is made in order to
deprive a party of the benefit of it; but a knowledge of the
illegal purpose is, in general, a sufficient ground to infer
such participation, and it is not necessary that he should
have stipulated for a share of the profits, or for payment
out of the profits to be made in carrying out the illegal
purpose (¢).

If goods are sold for the purpose of being used in an un-
lawful manner the contract of sale is void, and the seller
cannot recover the price. A druggist who had sold and de-
livered to a brewer certain articles to be used in the manu-
facture of beer contrary to the statute 42 Geo. III. c. 38,
was held not to be entitled to recover the price (f). So,

(a) Annandale vy. Harris, 2 P. (e) Lightfoot v. Tenant, 1B. & P.
ee 432; Gibsonv. Dickie, 3 M.& 551, 557; Pearce v. Brooks, L. Rep.
. 463; Nye v. Moseley,6 B.&C. 1 Ex. 213; 35 L. J. Ex. 134; and
ae Turner v. Vaughan, 1 Wils. 339. see Bowry v. Bennet, 1 Camp. 348;

(0) Re Plasketl’s Estate, 30L.5.C. Lloyd y. Johnson, 1 B. & P. 340;
606. Smith vy. White, Th, Rep. 1 Eq. 626 ;

(c) Fores v. Johnes, 4 Esp. 97. 35 La J. CG 454.

(d) Poplett v. Stockdale, Ry. & (f) Langton v. Hughes, 1M. &8.
Moo, 337, 593.
SECT. IV. ILLEGAL CONTRACTS. 401

the price of goods sold for the purpose of being used in the
business of a brothel (a), or the price of goods sold or let to
a prostitute for the purpose of carrying on her trade, can-
not be recovered (b).

A contract for the sale of goods made for the purpose of
smuggling them from abroad into this country in contra-
vention of the revenue laws is void, and the price cannot be
recovered (¢) ; but it is said to be a principle of law that no
country takes notice of the revenue laws of another, and
accordingly it has been held that if a sale of goods is made
abroad for the purpose of smuggling them into this coun-
try, the seller may sue in this country for the price (d) ; un-
less he is an actual participator in the act of smuggling, as
where the seller packed the goods in a particular manner
required for that purpose (e). A bond was held void which
had been given to secure the price of goods sold for the pur-
pose of sending them to a foreign port and there reshipping
them for trade to the East Indies, without the license of the
East India Company required by law for such trade (f).

An action of covenant for the rent of premises was held
not maintainable, because the premises were demised for the
express purpose of being used for an illegal object (g). So,
a guarantee for rent of premises, let for the purpose of retail-
ing excisable liquors without license, was held void (h).
If lodgings be let for the purpose of enabling a prostitute to
carry on her trade, an action cannot be maintained for the
rent (2). A lessee having assigned his lease absolutely,
knowing that the assignee intended to use the house as a
brothel, was held not entitled to recover, on a covenant of
indemnity contained in the assignment, the amount which
he had been compelled to pay for dilapidations at the ex-
piration of the lease (j). An action of covenant for pay-

(a) Hamilton vy. Grainger, 5 H. &
N. 40; Bowry v. Bennet, 1 Camp.
348 ; Lloyd v. Johnson, 1 B. & P.340.

(b) Pearce v. Brooks, L. Rep. 1 Ex.
213; 35 LJ. Ex. 134.

(c) Biggs v. Lawrence, 31. R. 454.

(d) Holmanv. Johnson, 1 Cowp. 341;
Pellecat v. Angell, 2C.M. & BR. 311.

(e) Waymell v. Reed, 5 T. BR. 599.

(f) Lightfoot v. Tenant, 1B. & P.
5b1 ; Paxton v. Popham, 9 East, 498.

(g) Gaslight Co. v. Turner, 5 Bing.
N.C. 666; Flight v. Clarke, 18 M.&
W. 155.

(hk) Ritchie v. Smith, 6 C. B. 462.

(8) Girardy vy. Richardson, 1 Esp.
13, and see Lloyd v. Johnson, 1 B. &
P. 340; Appleton v. Campbell, 2.C. &
P. 347 ; Jennings v. Throgmorton, Ry.
& M. 2651.

(7) Smithy, White, L. Rep. 1 Eq.
626; 385 L. J. C. 454.

2D
Contracts
made for

402 CHAP, III]. THE MATTER OF CONTRACTS.

ment of money was held to be met by a plea, that the

illegal pur- MOney was the purchase-money of land sold to the de-

poses,

Contracts
in fraud of
a third
party.

fendant for the purpose of being resold by the latter in an
illegal lottery (a).

Upon the same principle money lent for an illegal pur-
pose cannot be recovered; as, money lent for the purpose
of carrying on an unlicensed theatre (b) ; money lent for the
purpose of settling losses on illegal stock-jobbing transac-
tions (¢); money lent for the purpose of playing at an il-
legal game (d); but money lent to pay bets or losses at
gaming lost to a third person, other than the lender, may be
recovered (e). If the loan is void by reason of the illegal
purpose, so that the money cannot be recovered on the con-
tract of loan, a bond or other security given for the loan is
also void (jf).

Money paid by the plaintiff at the request of the de-
fendant in execution of an illegal purpose cannot be re-
covered (9). Money paid at the request of the defendant in
execution of wagering contracts void under 8 & 9 Vict. c.
109, s.18, but not otherwise illegal, may be recovered (h).

If the purpose of the agreement is to defraud or injure a
third party, it is illegal and void. The plaintiff had contracted
with Government to keep horses for the army, and the
defendant had contracted with Government to supply them
with forage; it was then agreed between the plaintiff and
the defendant that in consideration of the plaintiff not draw-
ing the forage, the defendant promised to pay the plaintiff
a certain sum for every ration of forage so left ; the contract
was held void, the consideration etre illegal as a mode of
cheating the Government (7).

(f) Cannan vy. Bryce, 3 B. & Ald.
179, 185.
(g) Cannan v. Bryce, 3 B. & Ald.

(a) Bridges vy. Fisher, 3 HE. & B.
642; 23 L. J. Q.B. 276.
(0) De Begnis v. Armistead, 10

Bing. 107; and see Levy v. Yates,
8A. & E. 129.

(c) Cannan v. Bryce,3 B. & Ald.
179; and see Mortimer vy. Gell, 4 C.
B. 543.

(a2) M‘Kinnell v. Robinson, 3M. &
W. 434.

(e) Hill y. Fox, 4H, & N. 359,

179; M‘Kinnell v. Robinson, 3 M. &
W. 434.

(hk) See ante, p.377; Jessop v. Lut-
wyche, 10 Ex. 614; Knight v. Cam-
bers, 15 C. B. 562; Rosewarne v. Bil-
ling, 15 C. B. N.S. 316; 33 L. J. C.
P. 55.

(i) Willis v. Baldwin, 2 Doug. 450.
SECT. IV. ILLEGAL CONTRACTS. 408

Where an arrangement is come to between an insolvent
debtor and his creditors to accept a composition for their
debts and release the debtor, if any one of the creditors sti-
_ pulates with the debtor for a greater share of his debt, or for
farther security, than the other creditors receive, so that the
debtor is not discharged by him upon the same terms as by
the other creditors, such stipulation is illegal and void, as
being a fraud upon the other creditors (a). Arrangements
between creditors and an insolvent debtor have been thus
described :—‘ Each creditor consents to lose part of his debt
in consideration that the others do the same, and each cre-
ditor may be considered to stipulate with the others for a
release from them to the insolvent in consideration of the
release by him. Where any creditor, in fraud of the agree-
ment to accept the composition, stipulates for a preference
to himself, his stipulation is altogether void ” (b).

Accordingly, a note obtained by one of the creditors from
the debtor for the balance of his debt beyond the amount of
the composition, in consideration of his executing the deed
of composition, was held void, as a fraud upon the rest of
the creditors (c) ; so, a note given under similar circum-
stances by the debtor and by a third party as surety, was
held void against the surety (d) ; and a guarantee by a third
party to the creditor for the full amount of his debt, in con-
sideration of his executing the composition deed, was held
void (e). In order to induce the creditor to agree to the
composition a third party gave him a bill for an additional
amount, and afterwards, in order to secure the payment of
that bill, the debtor by a separate deed assigned to the cre-
ditor a policy of insurance and covenanted to keep up the
assurance; it was held that the deed was void by reason of
the original illegal purpose which it was intended to carry

(a) Cockshott v. Bennett, 2 T. R. (c) Cockshott v. Bennett, 2 T. R.
463; Jackson v. Lomas, 4T.R.166; 763; Mallalieu v. Hodgson, 16 Q. B.
per Bayley, J., Lewis v. Jones,4 B.& 689. io
C. 506, 511; Coleman v. Waller, 3 (d) Wells v. Girling, 1 B. & B.

Y. & J. 212. 447 ; and see Bradshaw v. Bradshaw,
(0) Per Evle, J., Mailaliew v. Hodg- 9M.& W. 29.

son, 16 Q. B. 689, 711; 20 L.J. Q. (e) Coleman v. Waller, 3 Y.& J.

B. 339, 347. 212.

2pn2
Contracts

in fraud of

third
party.

40-4 CHAP. Ill. THE MATTER OF CONTRACTS.

out (a). A secret bargain whereby a bankrupt who had com-
pounded with his creditors agreed to pay one creditor in full,
in consideration of his becoming surety for payment of the
composition, was set aside in equity as a fraud upon the other
creditors (b).

The same consequence follows where, upon the making of
a composition deed, a creditor stipulates privately for a col-
lateral security either from the debtor or a third party, be-
yond what is agreed for by the other creditors by the terms
of the composition, although the security be not for a greater
amount than the composition (c).

In such cases the whole transaction is legal and void, and
the creditor who stipulates, as part of his agreement in exe-
cuting the composition, to have a greater amount, or greater
security, than the other creditors, cannot recover even the
amount of the composition (d). So, where a composition deed
is executed by creditors on the understanding that the debtor
is released from all his debts, and a creditor signs for certain
debts only reserving others, he cannot afterwards recover the
latter, because such reservation is in fraud of the other cre-
ditors (e). The transaction is also void as against the debtor,
who has given any such fraudulent preference to a creditor
to induce him to execute a composition deed ; so that where
the debtor sued the creditor upon a covenant contained in
the deed to indemnify him against outstanding bills, it was
held that the creditor might plead the fraud in answer to
the action (f).

But the debtor being under compulsion and so not in
pari delicto with the creditor, may reclaim money paid to
the creditor to induce him to execute the deed (q); and if he
has been compelled to pay bills or notes given by him to
the creditor for the same illegal purpose, and negotiated

(a) Geerev. Mare,2 H. & C. 339;

33 L. J. Ex. 50.

(b) Wood v. Barker, L. R. 1 Eq.

139; 35 L. J.C. 276.
(c) Leicester v. Rose, +: East, 372.
(d) Howden y. Haigh, 11 A. & Bi.
1033.

(ce) Britten v. Hughes, 5 Bing. 460 ;

and see Payler v. Homersham, 4 M.&
8. 423 ; Harrhy v. Wall, 1B. & Ald.
108 ; Blackstone v. Wilson, 26 L. J.
Ex. 229,

(f) Miggins v. Pitt, 4 Ex. 312.

(g) Atkinson v. Denby ,6H. &N.
778; 7 ib.934; 30 L. J. oie. 361; 31
ib. 362; 3 ante, p. 67; post, p. 407.
SECT. IV. ILLEGAL CONTRACTS. 4.05

by the creditor, he may recover the amount from the cre-
ditor («).

The effect of illegality in the matter or purpose of an agree- Effect of.
ment, of the kinds described above, is to render the agree- ae ie
ment wholly void of legal effect ; and no right or action can the con
be founded upon it (b). The effect of the illegality is the
same, in whatever form the proposed contract is framed,
whether it is in the form of a simple contract, or of a con-
tract under seal; if the contract is made in the form of a
bond and the condition is illegal, the bond is void (c).

With respect to the consideration of a contract, it is equally
required to be legal, whether it is executory, i.e. a matter
promised, or whether it is executed, 7.c. a matter performed ;
if the matter, promised or performed, is illegal, it will not
support a binding promise. Though a contract under seal
does not require a consideration to support it, and it is not
necessary that one should appear in the written terms of the
contract, yet, if in fact there was a consideration for the
contract, it must be a lawful one, otherwise the contract is
void (d).

All the circumstances connected with a contract may be Extrinsic
examined in order to show its illegality, though the contract °Y4ene?,
in its terms is apparently unimpeachable. Where a contract i tee
is made in writing, and even where it is made by deed’
under seal, and contains no apparent illegality in its terms,
extrinsic evidence is admissible in variance of its terms to

show that the transaction was illegal and void (e).

If a party voluntarily performs an illegal contract which ee e

he might have successfully resisted on the ground of the afterexecu-
tion of the
contract.
(a) Sinith v. Cuff, 6 M. & 8. 160; (d) Ante, p. 85. ;
_andsee Wilson v. Ray, 10 A. & BH. 82; (e) Collins v. Blantern, 1 Smith, L.

Bradshaw vy. Bradshaw, 9 M.& W.  C. 5th ed. 310; Paxton vy. Popham,

29; Horton v. Riley, 11M. & W. 9 East, 408; Williams v. Jones, 5 B.

492; ante, p. 45. & C.108; R. v. Northwingfield, 1 B.
(2) Holman v. Johnson, 1 Cowp. & Ad. 912; Bridgesy. Fisher, 3 E.&

341, 343; MWetherell v. Jones, 3B.& B. 642; 23L.J5.Q.B. 276; Geere

Ad. 221, 226. vy. Mare, 2H. & C. 339; 33 L. J. Ex,
(ce) Co. Lit, 206 b. 50.
Effect of
illegality

after exe-

cution of
contract.

4.06 CHAP. III. THE MATTER OF CONTRACTS.

illegality, he cannot afterwards rely on the illegality for the
purpose of avoiding his performance of the contract. Thus,
money fairly lost at illegal gaming, and paid, cannot be re-
covered back (a). The plaintiff being about to make a com-
position with his creditors, in order to induce the defendant
to subscribe the deed, gave him a bill for the balance of his
debt, (which was illegal as being in fraud of the other credi-
tors,) and paid it voluntarily to the defendant ; it was held
that he could not recover back the amount (0).

If a debtor owes the same creditor two debts, one arising
out of a legal contract, and the other out of a contract void
for illegality, and makes a payment without specifically ap-
propriating it to either debt, the creditor may exercise his
right of appropriation by applying it to the debt arising out
of the illegal contract (c) ; but if neither creditor nor debtor
appropriates the payment, the law appropriates it to the debt
recognized by law (d).

So, if in execution of an illegal agreement money is paid
to an agent for one of the parties and is received by the
agent for his use, that party may recover it from the agent,
who cannot set up the illegality in the original contract in
answer to the claim (e). Thus, a broker, having effected a
policy of insurance on a ship for an illegal voyage, and hav-
ing received the amount from the underwriters upon the
loss of the ship, was held bound to pay over the amount to
the shipowner notwithstanding the illegality of the policy (f).
So, an agent who has sold goods for his principal, and re-
ceived the price, is bound to pay it over to his principal,
although the contract of sale was illegal and void (g). So,
where two persons joined in an illegal wager which they
won, and the whole amount was paid to one of them, the
other was held entitled to recover his share from the one
who had received the whole (h).

(a) Thistlewood v. Cracroft, 1M. (e) See ante, p. 66.
& S. 500. (f) Tenant v. Elliott, 1B. & P. 3.
(6) Wilsonv. Ray, 10 A. & EH. 82 ; (9) Farmer v. Russell, 1 B. & P.
ante, p. 56. 296; Bousfield v. Wilson, 16 M. &
(c) Philpotty. Jones,2A.&K.41; W.185; and see Nicholson v. Gooch,
Crookshank v. Rose, 5 O. & P. 19. 5 E.& B. 999; 25 L. J. Q. B. 187, 147.
(2) Wright v. Laing, 3 B. & C. (2) Johnson vy. Lansley, 12 C.B.

165 ; and see post, p. 496. 468.
SECT. iV. ILLEGAL CONTRACTS. 407

Whilst an illegal agreement remains executory, the party
who has paid money as the consideration of it may repudiate
the agreement and reclaim the money. A wagering contract
was made by the plaintiff paying the defendant a sum of
money in consideration of the defendant binding himself to
pay the plaintiff an annuity of a certain sum until the duties
on hops reached a certain amount; it was held that, the
contract being illegal, the plaintiff might demand and recover
back the sum paid by him (a). So, money deposited with
a stake-holder upon an illegal wager may be reclaimed at
any time before it is paid over according to the event (0).

The plaintiff, having paid money as the consideration of a
contract which he is entitled to rescind on the ground of
illegality, must give notice to the other party that he rescinds
the contract and reclaims his money, before he can maintain
an action to recover it (c).

But after the contract has been executed, the money paid
as the consideration of it can no longer be recovered. Where
the plaintiff paid a premium for a wagering insurance upon
a ship in which he had no interest, it was held that, after
the ship had safely completed the voyage insured, he could
not recover back the premium (d). So, it was held that the
premium for the re-assurance of a ship, which is unlawful
by 19 Geo. IT. c. 37, after the loss of the ship, could not be
recovered back (e).

There are some cases where a person having paid money
as the consideration for an illegal contract, which has been
executed, is nevertheless entitled to reclaim the money on
the ground that he is not equally guilty (in pari delicto) with
the other party to the illegal agreement who has received
the money, and therefore may repudiate the contract as
against that party. “The rule is, in pari delicto potior est
conditio defendentis; where the contract is executed, and
the money paid in pari delicto, this rule certainly holds;
and the party who has paid it cannot recover it back. For

(a) Tappenden v. Randall,2 B.& 290; Gatty v. Field, 9 Q. B. 431;
P. 467; and see the cases cited ante, and see Busk v. Walsh, 4 Taunt. 290.
p. 64. (d) Lowry v. Bourdieu, Doug. 468.

(b) See ante, p. 65. (e) Andree v. Fletcher, 3 T. R.

(ce) Palyart vy. Leckie, 6 M.& 8. 266.

Money paid
as the con-
sideration of
an illegal
contract.

Afierexecu-
tion of the
contract.

Where the
parties are
not in pari
delicto.
Money
paid under
illegal con-
tract re-
coverable
by party
not in pari
delicto,

408 CHAP. III. THE MATTER OF CONTRACTS..

instance, in bribery, if a man pays a sum of money by way
of a bribe, he can never recover it in an action; because
both the plaintiff and the defendant are equally criminal. But
where contracts or transactions are prohibited by positive
statutes, for the sake of protecting one set of men from
another set of men; the one, from their situation and con-
dition, being liable to be oppressed or imposed upon by the
other; there, the parties are not in pari delicto; and in
furtherance of these statutes, the person injured, after the
transaction is finished and completed, may bring his action
and defeat the contract. For instance, by the Statute of
Usury, (repealed by the 17 & 18 Vict. c. 90,) taking more
than 5 per cent. is declared illegal, and the contract void ;
but the party injured may bring an action for the excess of
interest” (a).

Other instances occur in the following cases :—Where the
creditor of a bankrupt obtains money from a person as the
consideration for forbearing to oppose, or for consenting to
the allowance of the discharge of such bankrupt, or for for-
bearing to petition for the recall of the same, which is for-
bidden by statute ; the money so obtained may be recovered,
although the payment of it was contrary to the statute, and
although the bankrupt has had the benefit of his dis-
charge (b).— A person, having been sued in a qui tam action
for penalties, paid a sum of money to the informer in order
to compromise the action; it was held that he might re-
cover back the money so paid, because, though the composi-
tion of the action was illegal, he was not in pari delicto with
the informer in respect of such illegal composition (c).—A
debtor being about to compound with his creditors, under a
secret agreement with one of them paid him a sum of money,
over and above the composition, as consideration for his sub-
scribing to the deed ; it was held that though the agreement
was illegal as being in fraud of the other creditors, yet the

(a) Per Lord Mansfield, Browning (b) Smith v. Bromley, 2 Doug. 696 ;
vy. Murris, 2 Cowp. 790, 792; and see Browning vy. Morris, 2 Cowp. 790,
Higgins v. Pitt, 4 Ex, 312, 324; 792; 24 & 25 Vict. c. 134, s. 167.
heynell v. Sprye,1 De G. M. & G. (ce) Williams vy. Hedley, 8 East,
660, 679; 21 L. J. C. 633, 651; 378; Unwinv. Leaper, 1M. & G. 747;
Osborne vy, Williams, 18 Ves. 879. see ale, p. 383.
SECT. IV. ILLEGAL CONTRACTS. 4.09

debtor was entitled to recover the money, because not in pari
delicto with his creditor (2). And where under similar cir-
cumstances the debtor, instead of giving money, gave the
creditor his promissory note, which the creditor negotiated
and the debtor was compelled to pay to the holder, it was
held to amount to the same thing, and that the debtor was
entitled to recover the sum from the creditor (8).

But the circumstance that one of the parties to an illegal
agreement is not in pari delicto with the other, though it
may entitle him to repudiate the agreement and recover
back money paid to the other party as the consideration for
the illegal act or promise, will not entitle him to enforce an
executory part of the agreement against the other party (c).
Thus, where a composition deed was entered into between a
debtor and creditors, and a secret arrangement was made
with one of the creditors in fraud of the others, it was held
that neither the debtor nor the creditor could sue upon the
covenants in the deed (4).

If the consideration is in part illegal, as where several Effect of |

matters together form the consideration, and one or some of ee
them are illegal, the promise given for such consideration is consider
wholly void; for it is impossible in such case to apportion
the weight of each part of the consideration in inducing the
promise. According to Tindal, C.J.:—If either part of
the consideration be illegal, the whole falls to the ground ;
for a party cannot enforce a contract where the considera-
tion is illegal, either in the whole or in part: [Featherstone
v. Hutchinson (e) is a direct authority on that point. There,
a promise by defendant to pay a sheriff the debt of his
prisoner, in consideration of the prisoner’s being set at
large, and paying the defendant two shillings, was held void
as to the whole” (the former part of the consideration being
contrary to the statute 23 H. VI.) (/).

(a) Atkinson y. Denby, 6 H.&N. (d) Higgins v. Pitt, 4 Ex. 312;
4778; 7ib. 984; 30 L. J. Ex. 361; ante, p. 404.
31 ib. 362; see ante, p. 404. (e) Cro. Eliz. 199. ;

(b) Sinith v. Cuff, 6 M. & S. 160; (f) Waite v. Jones, 1 Bing. N. C.
Horton v. Riley, 11 M. & W. 492; 656, 662; and see Jones v. Waite, 5
ante, p. 40. Bing. N. C. 341, 351; Shackell y¢.

(c) See per Lord Mansfield, Brown- — Rosier, 2 Bing. N. C. 634, 646 ; Hop-
ing v. Morris, 2 Cowp. 790, 793. kins v. Prescott, 4 C, B. 578.
410 CHAP. 1[]. THE MATTER OF CONTRACTS.

A bill of exchange was given in consideration partly for
spirituous liquors sold in a manner contrary to the statute
24 Geo. II. c. 40, s. 12, and partly for money lent; Mans-
‘field, C.J., said: “The statute makes the consideration
illegal, not merely void ; and the security is entire and can-
not be apportioned; and since it is partly given for an illegal
consideration, the whole bill is void” («). The plaintiff, who
had carried on the business of a law stationer and held the
office of distributor of stamps and collector of assessed taxes,
made an agreement for the sale of his business to the defen-
dant to the effect, that in consideration of the sale of his
business of a law stationer,’and that he would resign the
offices of distributor of stamps and collector of taxes and
endeavour to procure the defendant to be appointed to
those offices, the defendant promised to pay £300 in manner
therein mentioned ; it was held that the part of the con-
sideration relating to the sale of the offices was illegal, and
therefore the promise was void, and no action could be
maintained upon it (4).

Effect of _ Where an agreement contains several promises, or a pro-

ee ee mise to do several matters, and some of the matters pro-

promise. mised are illegal, the illegal promises only are void for the
illegality, and the promises which can be separated from
the illegality may be enforced (c). ‘‘ Where the condition
of a bond consists of several different parts, and some of
them are lawful and the others not, it is good for so much
as is lawful, and void for the rest”’ (d).

A lease contained a covenant by the lessee to pay the
property tax imposed on the premises, which was illegal and
void by the statute 46 Geo. III. c. 65, s. 115; it was held
that the illegality did not affect other independent covenants
in the lease, such as that for payment of rent (e). A deed
contained a covenant to pay £300 and interest, and also a
covenant to pay the property tax payable for the said £300 ;

(a) Scott v. Gillmore, 3 Taunt. 226; see Gueenwood v. Bishop of London,
see per Lord Tenterden, C.J., Crook- 5 Taunt. 727; Doe d. Thompson v.
shank v. Rose, 5C.& P.19;1M.& Pitcher, 6 Taunt. 359; Aerrison v.

Rob. 100. Cole, 8 East, 231.
(6) Hopkins vy. Prescott, 4C. B. (d) 1 Wms. Saund. 66, n. (4) ; New-
578 man v. Newman, 4M. & 8. 66.

() Pigot’s case, 11 Coke, 26 6; and (e) Gaskell y. King, 11 East, 165.
SECT. Iv. 411

although the latter covenant was illegal and void under the
above statute, the former was held good (a). A deed grant-
ing an annuity contained a covenant to pay the annuity,
without deduction in respect of the property or income tax ;
the covenant was held good for the payment of the annuity,
though void to the extent of the deductions of the tax (0).

Where a person contracts not to exercise a trade within
specified limits, which are reasonable, and also within other
specified limits which are unreasonable in extent, the con-
tract, as to the latter part, is void, but as to the former it is
valid (c). In such contracts it is a question of construc-
tion, whether, from the language used, the covenant be
capable of division (cd).

ILLEGAL CONTRACTS.

A contract, legal at the time of making it, which becomes Effect of
subsequently illegal by a change in the law, is, in general, ee
discharged by such illegality (e). According to Holt, C.J. ; to contract-
—‘ The difference where an Act of Parliament will amount
to a repeal of a covenant and where not is this: where a
man covenants not to do a thing which was lawful for him
to do, and an Act of Parliament comes after and compels
him to do it, there the Act repeals the covenant; and vire
versa, if he covenants to do a thing which is lawful, and an
Act of Parliament comes in and binders him from doing it,
the covenant is repealed(f). But where a man covenants
not to do a thing which was unlawful at the time of the co-
venant, and afterwards an Act makes it lawful; the Act
does not repeal the covenant”? (q).

The defendants covenanted with the plaintiff that they
would not raise or lower the level of a certain lake belong-
ing to the plaintiff, from which they had the right to draw
water, beyond certain specified limits; an Act of Parlia-
ment subsequently passed for the erection of certain works
by the defendants, which rendered it necessary for them to

(d) Price v. Green, 16M. & W.

(a) Wigg v. Shuttleworth, 13 East,
87

(6) Howe v. Synge, 15 Hast, 440.

(c) See ante, p. 390 ; Chesman v.
Nainby, 2 L. Raym. 1456; Mallan
v. May, 11 M. & W. 653; Nicholls v.
Stretton, 10 Q. B. 346 ; Green v. Price,
13 M. & W. 695; 16 M. & W. 346.

346, 353.

(e) Atkinson v. Ritchie, 10 East,
530, 534; and see the cases cited
ante, p. 867.

(f) Dyer, 27, pl. 178 ; 28 a, pl. 186.

(g) Brewster v. Kitchin, 1 Salk.
198; 1 L. Raym. 317, 321.
412 CHAP. I1]. THE MATTER OF CONTRACTS.

raise the level of the water in the lake beyond the limit

sul ot weed specified in the covenant; it was held that an action would

not lie against them for a breach of covenant in doing that
which the legislature obliged them to do, and that it must be
assumed that due provision had been made for compensating
the plaintiff for any loss occasioned by the intervention of
the legislature (a). A private Act of Parliament is in the
nature of an agreement between the parties, and an agree-
ment may be made in derogation of it, provided it be not
inconsistent with the public interest. Thus, where the
plaintiff had agreed with the promoters of a railway bill to
bear the costs of obtaining and passing the bill, and the bill
was passed with the usual clause charging the costs on the
company, it was held that the plaintiff continued bound by
his agreement to bear the costs of obtaining the bill and could
not recover them against the company under the Act (b).

“Tf from a change in the political relations and circum-
stances of this country with reference to contracts lawfully
made at the time, they have become incapable of being car-
ried into effect without derogating from the public duty
which a British subject owes to his sovereign and the state ;
the non-performance of such contracts is not only excus-
able, but a matter of duty on the part of the subject” (c).
Thus, a declaration of war renders illegal the performance of
a contract which involves trading with the enemy, and dis-
charges the contract (d).

An illegality supervening by the law of a foreign country
does not excuse a breach of the contract; the foreign law
may render it impossible in fact for the party to perform his
contract, but such impossibility offers no excuse for the non-
performance (e). It is no answer to an action of debt against
a foreigner, that the debt had been confiscated and paid to
the government of the foreigner during a time of war with
this country ; the only effect of war upon previous contracts,
recognized by the law of nations, beimg to prohibit payment
while the war continues (/').

(a) Wynn v. Shropshire Union 530, 534.

Railways and Canal Co., 5 Hx. 420. (d) See ante, p. 397. —
(b) Savin v. Hoylake Railway Co., (e) Sce ante, p. 368.
L. Rep. 1 Ex. 9; 35 L. J. Ex. 52. (f) Wolff v. Orholm, 6 M. & 8.

(c) Alkinson v. Ritchie, 10 Wast, 925 and sce ante, p. 397.
13

CHAPTER IV.
THE DISCHARGE OF CONTRACTS.

Section I. Discoarce or Conrracts By AGREEMENT.

Discharge of Contracts ......... 413 Bills of exchange and Pro-
Discharge of Simple Contracts missory Notes ............ 417
by Agreement..............+ 413 Discharge of Contracts under
Contracts in Writing ...... 414 Seal by Agreement ......... 418

Contracts within the Statute Contracts reserving an option
OLETAUdS  scccoramaarortays 415 to rescind in certain Events 421

Berore the performance of a contract is due, it may be Discharge
discharged by an agreement of the parties, rescinding or °C?
altering its terms; a contract in writing may also be dis-
charged by the alteration or cancellation of the written in-
strument which embodies the contract (c).

When the contract is due, it may be discharged by an
exact performance of the terms ()). A default in the perform-
ance or breach of the contract also puts an end to it, in the
sense that, to the extent of the breach, it converts the con-
tract into a right of action for damages for the breach (c) ;
the right of action arising upon a breach of the contract
may then be discharged in various ways (d).

A simple contract may be discharged at any time before Discharge
opus Sota e pe
the performance of it is due by a new binding agreement, ° aariehd
rescinding or altering its terms. Thus, where two per- agreement:
sons have contracted mutual promises to marry, by a mu-

tual agreement not to marry they may discharge each other

te See post, p. 424. (ce) See post, p. 460.
O See post, 435. (d) See post, p. 465.
Discharge
of simple

‘contracts

by agree-

ment,

Contracts
in writing.

414, CHAP. IV. THE DISCHARGE OF CONTRACTS.

of those promises (a). The defendant guaranteed to the
plaintiff the payment of goods to be supplied by him toa
third person ; afterwards and before any breach of this gua-
rantee it was agreed between the plaintiff and the defendant
that the plaintiff should supply goods to the same person,
and that such goods should be paid for at the end of three
months by a joint bill at four months accepted by the de-
fendant, and this agreement was accepted by the plaintiff
in discharge of the guarantee ; the substituted contract was
held to discharge the guarantee and to be an answer to an
action brought upon it (b).

After a breach of contract has been committed the con-
tract can no longer be discharged by mere agreement not
under seal; the breach of the contract produces a right of
action which can only be discharged, in the manner of agree-.
ment, by a release under seal (c), or by an accord and satis-
faction (d), that is, by an agreement for satisfaction of the
breach accompanied with actual satisfaction.

A new agreement in discharge of a previously existing
simple contract must satisfy all the requirements of law ne-
cessary to create a binding contract. It may be made in
the form of a contract under seal, or by parol agreement,
and in the latter case it must contain a sufficient conside-
ration, and, must be made by mutual consent (e).

A contract originally put im writing merely by agreement
of the parties, and not in pursuance of a requirement of law,
may be altered or discharged by parol agreement without
writing (f). Where a second agreement has been made in
variation of the first, it has been held that the fact of the first
agreement having been varied is sufficient to defeat an ac-
tion upon that agreement, although the second agreement
may not be admissible in evidence for want of a stamp (9).

(a) King v. Gillett,7 M. & W.55. son v. Espie, 2H. & N. 79; 26 L. J.

(b) Taylor v. Hilary, 1C.M.&R. Ex. 240; Heinekey v. Earle, 8E.& B.
741; and see Patmore v. Colburn, 410,427; 28 L. J. Q. B. 79.

1C.M. & R. 65. (f) Goss v.Lord Nugent, 5 B. & Ad.
(c) See post, 497. 58, 65.
(d) See post, 465. (9) French v. Patten, 9 East, 351 ;

(e) Gompertz v. Denton, 1 C. & M. 1 Camp. 72; Reed v. Deere, 7B. & C.
207 ; Fitt v. Cassanet,4M.&G.898; 261; Sweeting v. Halse, 9 B. & C.
King v. Gillett, 7M. & W.55; Dob- 365.
SECT. I. DISCHARGE OF CONTRACTS BY AGREEMENT. 415

If the original contract was such as to require the form of
writing, as a contract within the Statute of Frauds, the sub-
sequent contract altering or modifying it, is also subject to
the statute, and must be made in the form of writing (a).

An agreement in writing was made for the sale of land,
being a matter within the Statute of Frauds; it was afterwards
discovered that a good title could not be made to part of the
land, and it was then verbally agreed to waive the title to
that part; in an action brought by the vendor for the pur-
chase money, charging the contract as altered, it was held
that parol evidence was not admissible to show the waiver of
the title to part of the land, because the effect of such waiver
was to substitute anew contract, which, beg a contract for
the sale of land, was required by the Statute of Frauds to be
proved by writing only (b).

There is no distinction in this respect between different
parts of the contract, as being more or less essential or ma-
terial: ‘‘ everything for which the parties stipulate as form-
ing part of the contract must be deemed to be material’? (e) ;
nor can any distinction be drawn between those terms of the
contract which relate to matters which itis necessary to agree
upon in writing, and those terms which, if they stood alone,
might have been agreed upon without writing. If all the
terms together form one contract, an alteration in any of
them is an alteration of the whole contract and must be in
writing: as, where a contract was made concerning a lease
of land with a sale of the straw upon the land, the latter to
be valued in a certain way, and subsequently an alteration
was verbally agreed upon as to the mode of valuing the
straw ; it was held that such alteration of the agreement
without writing was invalid (d).

So, in a written contract for. the sale of an interest in land
within the Statute of Frauds, the day for the completion of
the purchase cannot be waived by oral agreement and another
day substituted (e). Ona sale of goods above the value of
£10 within the 17th section of the Statute of Frauds by a

a) Goss v. Lord Nugent, 5 B. & (c) Per Parke, B., Marshall y.
a La Giraud v. Richmond,2C.B. Lynn, 6 M. & W. 109, 117,
835; Noble v. Ward, 4H. & C. 149; (d) Harvey v. Grabham,5 A.& E.61,
L. Rep. 1 Ex. 117; 35 L. J. Ex. 81. (e) Stowell vy. Robinson, 3 Bing. N.
(b) Goss y. Lord Nugent, supra, C. 928.

Contracts
within the
Statute of
Frauds.
Waiver of
contract
within the
Statute of
Frauds.

416 CHAP. IV. THE DISCHARGE OF CONTRACTS.

written contract, a subsequent enlargement of the time for
the delivery of the goods, or payment of the money, is a sub-
stitution of a new contract for the former, which cannot be
proved by parol evidence (a). Where a person guaranteed a
composition to the creditors of a debtor who should sign a
deed of release on a certain day, such guarantee being a con-
tract within the 4th section of the Statute of Frauds, it was
held that any alteration in the day appointed for signing
must be proved in writing (b). <A contract for services, not
to be performed within a year, within the fourth section of
the Statute of Frauds, provided for payment of the salary
yearly ; it was held that evidence was not admissible to show
that it was afterwards verbally agreed to pay the salary
quarterly (c).

In the case of Gtoss v. Lord Nugent, where the contract
in question was one for the sale of lands within the Statute
of Frauds, it was observed by the Court :— “that the
statute does not say in distinct terms that all contracts
or agreements concerning the sale of lands shall be in
writing ; all that it enacts is, that no action shall be brought
unless they are in writing. And as there is no clause
in the Act which requires the dissolution of such contracts
to be in writing, it should rather seem that a written
contract concerning the sale of lands may still be waived
and abandoned by a new agreement not in writing, and so
as to prevent either party from recovering on the contract
which was in writing. It is not, however, necessary to give
an opinion upon that point, as this is not a waiver and aban-
donment of the whole written agreement, but only a part of
it; and the question is, what is the effect of that” (d). In that
case it was decided that the waiver of a part of the agree-
ment was equivalent to making anew agreement concerning
the same matter, and that no action could be maintained
upon the agreement in its altered state unless the whole was
in writing (@).

(a) Marshall v. Lynn, 6 M. & W. (c) Giraud y. Richmond, 2 C. B. 835.
109, overruling Cuff v. Penn, 1 M.& (d\ Goss vy. Lord Nugent, 5B. &
§. 21; Stead v. Dawber, 10 A.& E, “Ad. 58, 65; and see Harvey v. Grab-
57; Noble v. Ward, 4 WU. &C.149; ham, 5 A. & E.61; Taylor on Evi-
L. Rep. 1 Ex. 117; 35 L. J. Ex. 81. dence, 4th ed. 972.

(b) Emmet y. Dewhirst, 3 Mac. & (e) See Goss y. Lord Nugent, cited
G. 587; 21 L. J. C. 497. ante, p. 415.
SECT. I. DISCHARGE OF CONTRACTS BY AGREEMENT. 417

But it has also been decided that the parol waiver or al-
teration of part of a written contract, which is required by
law to be in writing, cannot be set up in answer to an action
upon the contract m its original form. ‘Thus, in the case of
Moore v. Campbell, under a contract for the sale of goods,
which was required by the Statute of Frauds to be in writ-
ing, the goods were to be delivered from a quay, and it was
afterwards verbally agreed that the goods should be ware-
housed instead of being delivered from the quay; in an ac-
tion by the buyer for non-delivery of the goods, the seller
pleaded that before breach the agreement was mutually re-
scinded, and contended that the alteration of the contract as
to the delivery of the goods operated as a new contract
which was necessarily a waiver or discharge of the old
one and supported the plea of rescission; but the Court
said :— We do not think that this plea was proved by the
evidence. The parties never meant to rescind the old agree-
ment absolutely, which this plea, we think, imports. Whether
a new valid agreement thus substituted for the old one be-
fore breach would have supported the plea we need not in-
quire, for the agreement was void, there being neither note
in writing, nor part payment, nor delivery, nor acceptance of
part or all’? (a). In the case of Noble v. Ward, a contract
for the sale of goods within the Statute of Frauds having
been made in writing duly signed, a subsequent agreement
was made without writing whereby the time for delivery was
extended ; it was held, that the latter agreement, not satis-
fying the requirements of the statute, could not be allowed
to be good for any purpose; and therefore it could not be
set up either as varying or rescinding the first contract,
which, consequently, might be charged in an action accord-
ing to its original terms (b).

A parol discharge of a contract in writing within the Sta-
tutes of Frauds is a sufficient ground for dismissing a bill in
equity for specific performance (¢).

(2) Moore v. Campbell, 10 Ex.323; 240; Price v. Dyer, 17 Ves. 364;
23 L. J. Ex. 310. Robinson v. Page, 3 Russ. 119; see

(b) Noble v. Ward, 4H. & C. 149; Sugden, Vendors and Purchasers, 14th
L. Rep. 1 Ex.117; 35 L. J. Ex. 81. ed., p. 168. é

(ce) Gorman y. Salisbury, 1 Vern.

25
418 CHAP. IV, THE DISCHARGE OF CONTRACTS.

ee Bills of exchange, which are necessarily made in writing,
bedis- by the law merchant may be discharged by the holder, be-
cee a *y fore or after the instrument becomes payable, by express
waiver. renunciation or waiver, without writing and without any

consideration (a) ; and by the effect of the statute 3 & 4

Anne, c. 9, promissory notes are placed on the same footing

as bills of exchange in this as well as other respects (0).
ieeonge A contract under seal cannot be altered or discharged by
wach aN agreement not under seal; a deed under seal is necessary
aa for that purpose, according to the maxim, wnwmquodque
ment.

dissolvi eo ligamine quo ligatum est (c).

In an action for a breach of covenant in a lease whereby
the defendant covenanted that he would erect a thrashing
mill during the term, the defendant pleaded that during the
term and before commencing to build the mill the plain-
tiff desired him not to build it until he should be requested
to do so by the plaintiff, and he also pleaded that he com-
mitted the breach of covenant by the leave and license of
the plaintiff; both pleas were held bad on the ground that
a covenant under seal could not be discharged by parol (¢).
So, in an action upon a covenant in a lease to yield up at
the expiration of the term all erections and improvements
upon the premises erected or made during the term, charging
as a breach the removal of a greenhouse erected during
the term, the defendant pleaded an agreement by which
the lessor promised him that, if he should erect the green-
house during the term, he should be at liberty to remove it
at the expiration of the term; the plea was held bad for
the same reason (e). The defendant by deed assigned his
business of a surgeon to the plaintiff, and covenanted with
the plaintiff not to carry on or exercise the profession of a

(a) Dingwall v. Dunster, Doug.
247; Chitty on Bills, 10th ed. 207;
Byles on Bills, 8th ed. 182; Foster v.
Dawber, 6 Ix. 839, 851 ; per Willes,
J., Cook vy. Lister, 138 C. BL N.S. 543,
593; 32 L. J. C. P. 121, 126.

(0) Foster v. Dawber, 6 Ex. 839,
853.

(c) Blake’s case, 6 Rep. 43 6;

Snow vy. Franklyn, 1 Lutw. 358;
Kaye v. Waghorn, 1 Taunt. 428;
Littler v. Holland, 3 I’. R. 590; West
y. Blakeway, 2 M.«& G. 729,751; see
Smith v. Trowsdale, 3 E. & B. 83.

(d) Cordwent v. Hunt, 8 Taunt.
596.

(e) West v. Blakeway, 2M. & G.
729.
SECT. I. DISCHARGE OT CONTRACTS BY AGREEMENT. 419

surgeon within certain specified limits ; on several occasions
he visited sick persons within the limits at the request of
the plaintiff, and it was contended that these visits were a
breach of the covenant, which could not be discharged
by a parol license or request; but it was held that they did
not constitute a breach of the covenant, because they were
not an exercise of the profession by him, but by the plaintiff
through his means (a).

Upon the same ground, in an action on a covenant by
the defendant .to pay the plaintiff a sum of money six months
after notice in writing given to the defendant, a plea that,
before breach, the defendant satisfied the plaintiff’s claim
by delivering to him goods was held a bad plea (b). So, a
plea to an action on a covenant under seal that, before
breach, the defendant delivered to the plaintiff, and the
plaintiff accepted, a bond or deed in satisfaction and dis-
charge of the covenant is a bad plea, as amounting to a dis-
charge of the covenant by parol agreement (c).

So, a condition precedent to a covenant in a deed cannot pischarge
be altered or discharged by a parol agreement ; though it ofcondt.
i ‘lons prece:
may be excused on the ground of the performance being re- dent toa
fused, or prevented, or rendered impossible by the cove- i
nantee (d). The defendant covenanted to pay a sum of
money for the building of certain houses by the plaintiff by
a certain day, which the plaintiff failed to do within the
time; it was held that the plaintiff could not recover on
the covenant of the defendant, although it had been ver-
bally agreed between them that the time for building the
houses should be enlarged, and the houses had been built
within the enlarged time (e). By a charterparty made under
seal the shipowner covenanted to carry a cargo to London
and there deliver it, and the freighter covenanted to pay
freight upon delivery of the cargo in London ; before sailing,

(a) Rawlinson v. Clarke, 14M.& 14. & B. 295.
7

W. 187. (d) Heard v. Wadham, 1 East, 619 ;
(6) Healey v. Spence, 8 Bx. 668; West v. Blakeway, 2M. & G. 729,
22 L. J. Ex. 249. 751.
(c) Kay v. Waghorn, 1 Taunt. (e) Littler v. Holland, 3 T. R. 590;

428; Mayor of Berwick y. Oswald, see Terry v. Dunize, 2 H. Bl. 389.
° 262
Effect of
parol
agreement
varying the
terms of a
deed.

420 CHAP. IV. THE DISCHARGE OF CONTRACTS.

by verbal directions, Liverpool was substituted for London
as the port of delivery, and the shipowner performed the
voyage and delivered the cargo at Liverpool; it was held
that he was not entitled to sue on the covenant to pay
freight on delivery in London (a). By indentures of ap-
prenticeship the defendant placed his son as an appren-
tice to the plaintiff as an auctioneer and cornfactor, to learn
his trade and serve him as an apprentice, and the defendant
covenanted that his son should not absent himself from the
service; the plaintiff, with the consent of the defendant,
ceased to carry on the trade of a cornfactor; it was held
that the carrying on and teaching all the trades was a con-
dition precedent to the covenant of the defendant, and could
not be affected by a parol consent, and that the plaintiff
could not recover on the covenant for the desertion of the
apprentice (4). By an agreement under seal the plain-
tiff agreed to build a ship for the defendants according to
specification for a fixed price, and it was stipulated that any
alterations to be required by the defendants during the
building should not be made by the plaintiffs unless on the
authority in writing of the defendants directing the altera-
tions, and specifying the amount to be allowed for the
same; the plaintiffs having made snch alterations at the
request of the defendants, but without written orders, it
was held that the plaintiffs could not recover the costs of
the alterations under the contract, because there could be
no dispensation of the stipulation requiring written autho-
rity by mere verbal agreement (¢).

A parol agreement varying the terms of a deed, though
it has no legal effect upon the deed, may create a valid
simple contract, for a breach of which an action may be
brought (d). An agreement was made between the plain-
tiff and the defendant that the plaintiff should not enforce

(a) Thompson v. Brown, 7 Taunt. Russell v. Viscount Sa Da Bandiera,
656. 13 C. BN. 8.149; 32L. J.C. P. 68;

(b) Eilen v. Topp, 6 Ex. 424. See ante, p. 337, n. (¢).

(c) Thames Lronworks Co. v. Royal (d) Nash v. Armsirong, 10 C. B.
Mail Steampacket Co., 18 C. B. N. N.S. 259; 80 L. J. C. PL. 286;
8. 3858; 31L.3.C. P. 169; and see Gwynne vy. Davy, 1 M.& G, 857.
SECT. I. DISCHARGE OF CONTRACTS BY AGREEMENT. 421

the covenants. in a deed, previously executed between the
parties, in consideration of which the defendant promised to
pay a sum of money; it was held that the promise was
made upon a good consideration and was binding (a). A
parol agreement altering or discharging a contract under
seal might, under certain circumstances, afford equitable
grounds for an injunction against an action upon the con-
tract so altered or discharged, and, if it afforded grounds
for an absolute and perpetual injunction, might be pleaded
as a defence upon equitable grounds to an action at law;
thus, in the case of a promise being made in consideration
of the promisee not enforcing a covenant in a deed against
the promiser, a complete performance of the promise would
seem to afford a good defence upon.equitable grounds to
an action on the covenant (5).

An agreement may in its terms provide for its becoming
void in a certain event, or it may reserve to one or other of
the parties an option to rescind it in a certain event, in
which cases the contract may become void, or be rescinded,
according to its terms, without any further agreement be-
tween the parties. Thus, in a contract for the sale of a
chattel with a warranty, if it be stipulated that upon a
breach of the warranty the purchaser may rescind the con-
tract, he may then, upon such breach, return the chattel and
recover the price, which he could not do in the absence of
such express stipulation (¢).

Contracts for the tenancy of land are commonly made de-
terminable by a notice to quit to be given by one, or either,
of the parties; thus, a tenancy from year to year, in the
absence of any agreement to the contrary, is determinable
by either party giving to the other notice to quit half a year
before the expiration of the current year of the tenancy (//).

Contracts of service are commonly made determinable by

(a) Nash v. Armstrong, supra.

(b) Per Willes, J., Nash v. Avin-
strong, 10 C. B. N.S. 259.

(ce) Gompertz v. Denton, 1 C. &
M. 207; Street v. Blay, 2 B. & Ad.
456 ; Dawson v. Collis, 10 C. B. 523 ;
see ante, p. 198. .

(d) Right v. Darby, 1 T. BR. 159;
Johnstone v. Hudlestone, 4 B. & C.
922; Roe d. Durant v. Doe, 6 Bing.
574; Doe d. Williams v. Smith, 5 A.
& EB. 350; and see Doe d. Robinson
v. Dobell, 1 Q. B. 806; Bridges v.
Potts, 33 L. J. C. P. 338.

Contracts
reserving an
option to
rescind

in certain
events.
Contracts
reserving
option to,
rescind in
certain
events.

422 ‘CHAP. IV. THE DISCHARGE OF CONTRACTS.

notice to be given by either party to put an end to the en-
gagement. In the hiring of menial or domestic servants
the contract is by custom determinable by a month’s notice
on the part of the servant, and by a month’s notice or pay-
ment of a month’s wages on the part of the master (a). In
the absence of express stipulation to the contrary, this
custom applies to the engagement of a head-gardener (0);
of a person hired to assist in garden and stables (c); of a
huntsman (d); not to the engagement of a governess (e).
So, in engagements of service in particular trades and busi-
nesses, the custom in the trade or business to determine
the contract by notice is incorporated into the contract,
unless the express terms of the contract exclude the cus-
tom (f).

Agreements for the sale of land are often made determi-
nable in the case of difficulties arising as to their completion.
A proviso in a contract of sale of land, that if the vendor
cannot deduce a good title, or the purchaser shall not pay
the money on a certain day, the contract shall be void, in
general, gives an option to either party to rescind the con-
tract upon the specified default of the other, but does not
enable either to take advantage of his own wrong by avoid-
ing the contract upon his own default (4).

Under a condition of sale that, if the purchaser should
raise objections to the title which the vendor should not be
able or willing to remove, the vendor should be at liberty
to rescind the contract, the vendor has an option to rescind
the contract, upon such objections being insisted on ; but he
must exercise such option bond fide and upon reasonable
grounds. He is bound to answer the requisitions of the pur-
chaser in order to give him an opportunity of accepting the
title () ; and the purchaser is entitled to waive the objection

(a) Nowlan vy. Ablett,2C.M.&R. 8. 346; 27 L. J. C. P. 286; ante,
Bk p. 114.

(b) Nowlan vy. Ablett, supra. (g) Roberts v. Wyatt, 2 Taunt. 268 ;

(c) Johnson y. Blenkensopp, 5 Jur. epee y. Lloyd, 5 B. & Ad. 742,
870. 49.

(d) Nicoll v. Greaves, 17 C. B. N. (hk) Greaves vy. Wilson, 25 Beavan,
8. 27; 33L. J. C. P. 259. 290 327 L.J. OC. 546 ; Turpin v. Cham-

(e) Todd v. Kerrich, 8 Ex. 151. bers, 29 Beav. 104; 30 L. J. C. 470;

(f) Parker y. Ibbetson, 40. B. N. andsee Lanner vy. Smith, 10 Sim. 410 ;
SECT. I. DISCHARGE OF CONTRACTS BY AGREEMENT. 423

on finding that the vendor is unable or unwilling to remove Contracts

it (a).

Where the condition was that, in case of any objections ™
or requisitions being delivered with which the vendor should e
be unable or unwilling to comply, the vendor should have the
option to rescind the contract, “notwithstanding any attempt
made to remove or comply with any such objection or requi-
sition,” it was held that the vendor might exercise the op-
tion of rescinding, notwithstanding attempts made to answer
the requisitions, provided it was exercised within a reason-
able time (6). Under conditions similar to those above
mentioned the option may be exercised after the day speci-
fied for the completion of the contract (c). But where the
vendor, upon being applied to, expressly refused to rescind
the contract, insisting that he could make a good title and
that he would enforce the contract, it was held that he could
not afterwards elect to rescind under such condition (d).

A lease of mines, reserving a royalty rent for every ton
of coal raised, contained a proviso that the lease should be
void if the tenant ceased working for two years ; it was held
that the lease was voidable only at the option of the lessor,
and that the tenant could not avoid it by his own default (ec).
A lease contained a proviso that if the rent should be in
arrear for twenty-one days, or if any of the covenants should
be broken, the term thereby granted should be void, and it
should be lawful for the landlord to re-enter; it was held
that a breach of covenant rendered the lease voidable only
at the option of the landlord, and that he waived his right
to avoid it by a subsequent receipt of rent (f). So, a proviso
in a lease for years that, if the rent shall be unpaid for forty
days, the lease shall be void, does not make it voidable by
the lessee upon default in payment of the rent, but only

Gardom v. Lee, 3 H. & C. 651; 341.

J. Ex.118; Morley v. Cook, 2 Hare,
106; Page v. Adam, 4 Beay. 269;
M‘Culloch v. Gregory, 1K. & J. 286,
295.

(a) Duddell v. Simpson, L. Rep. 1
Hg. 578; 35 L. J. C. 451.

(6) Vestry of Shoreditch v. Hughes,
17C.P. N.S. 187 ; 33 L.J.C. P. 349.

(c) 1b.; Hoy v. Smythies, 22 Beav.
510.

(d) Gardom v. Lee, 3 H. & C. 651 ;
34. L. J. Ex. 113.

(e) Doe d. Bryan v. Bancks, 4 B.
& Ald. 401; and see Roberts v. Davey,
4B. & Ad. 664.

(f) Arnsby v. Woodward, 6 B. & C.
519.

eserving

option to

escind in

certain

‘vents.
A24 CHAP. IV. ‘HE DISCHARGE OF CONTRACTS.

~ makes it voidable against him (a). By an agreement for a
tenancy the tenant was to erect a shop-front, and if he did
not within three months, the agreement was to be null and
void; it was held to be voidable in such event at the elec-
tion of the lessor only (b).

By a deed of composition and release between the defend-
ant and his creditors, the defendant covenanted, amongst
other things, to insure his life for £1000 for three years for
the security of his creditors, with a proviso that in case he
should make default in such insurance the deed should be
utterly void to all intents and purposes ; it was held that upon
such default the deed was voidable only at the option of the
creditors, but that the plaintiff, a creditor, having accepted
a benefit under it after such default, could not afterwards
avoid it (c).

Cuap. IV. Szcr. II. Atreration of Warrren Instrument.

 

 

Alteration by one of the Par- Alteration by Accident or Mis-
MLOS oh a seteaan ies Worse elas 424 RICG cco osc sae acim eee ares 430
by a Stranger .......... ... 425 | Alteration by Consent of both
Material Alterations 425 PAR OB ccupid cavities. nce aahaneutves 430
Immaterial Alterations......., 427 | Party producing Instrument bound
Effect of Alteration in in avoiding to explain Alteration
an Instrument . sveseeee 428 | Loss of Instrument ...............

Alteration Tp a deed is altered in a material point by the obligee or
by one ns
party with- covenantee, without the consent of the other party, as by an

out the con-
sent of the Wterlineation, addition, erasure, or by drawing a pen through

other. a line or a word, the deed is thereby avoided (d) ; and fhie
same rule extends to contracts in writing not under seal (c).
The object of this rule is said to be to deter persons from at-
tempting fraud by means of alterations in documents (/).

If a deed or written contract is altered in a material point

(a) Rede v. Farr, 6 M. & 8. 121. Sheppard’s Touchstone, 68, 69.
(5) Doe d. Nash v. Birch, 1 M. & (e) Master v. Miller, 4 T. R. 820;
W. 402. 5 ib. 367; Davidson v. Cooper, 13 M.
(c) Hyde v. Watts, 12 M.& W.  & W. 348, 352; Mollett v. Wacker-
254; and see Hughes v. Palmer, 19C. — barth, 5 C. B. 181, 194.
B.N.S8. 398; 841. J. C. P. 279. (f) Master y. Miller, 4 T. R. 320,
(d) Pigot’s case, 11 Co. Rep. 27a; 329, 345.
SECT. II. ALTERATION OF WRITTEN INSTRUMENT. 4.25

by a stranger to the contract, without the knowledge of the Alteration

promisee, but whilst the instrument is in his possession or
under his care, the instrument is thereby avoided (a). This
rule is founded on the principle that a party who has the
custody of an instrument made for his benefit is bound to
preserve it in its original state (b).

An alteration made by a stranger, whilst the document is
not in the care and custody of the party claiming the benefit
of it; does not affect its legal validity. An award having
been made and signed ready for delivery, the umpire before
delivery altered the sum awarded ; it was held that the alte-
ration of the award by the umpire after his authority was at
an end was the same as if it had been made by a stranger,
and that the award remained good for the original sum (¢).

What are material alterations will appear from the follow-
ing decisions :—An alteration in a sale note of goods made
by the seller, without the consent of the buyer, adding the
words, “such part as may be damaged to be taken at such
allowance as shall be settled by two experienced brokers,”
was held to be a material alteration which avoided the con-
tract (d). A sale note of goods by sample was altered by
the buyer, without the consent of the seller, mserting after
the word sample the words “ of their own manufacture ;” it
was held that, whether those words had reference to the bulk
of the goods or to the sample only, the alteration was ma-
terial and avoided the contract (e).

A policy of insurance on a ship and cargo in general
terms was altered, after the underwriter had signed it and
without his consent, by the insertion by the insured of cer-
tain specific goods ; the alteration was held to be material and
to avoid the policy (f). So, where the insured, after subscrip-
tion by the underwriter and without his consent, altered the
time of warranty of sailing of the ship insured, it was held

(a) Pigot’s case, 11 Co. Rep. 276; (c) Henfree v. Bromley, 6 East, 309,
Davidson v. Cooper, 11M. & W.778; (d) Powell v. Divett, 15 East, 29.
13 ib. 343. (e) Mollett v. Wackerbarth, 5 OQ.

(b) Davidson v. Cooper, 13 M.& W. 3B. 181.
843,352; Burchfield v. Moore, 3U. & (f) Langhorn vy. Cologan, 4 Taunt.
B. 683, 687. 330.

by a stran-

er.

Material
alterations.
Material
altcrations.

426 CHAP. IV. THE DISCHARGE OF CONTRACTS.

that the alteration was material, and the underwriter dis-
charged from the contract (a) ; and where a policy of insur-
ance for a voyage to Portsmouth was altered, with the con-
sent of some of the underwriters, by inserting after Ports-
mouth the words “or Weymouth,” it was held that the
alteration avoided the policy against an underwriter who was
ignorant of the alteration (0).

An alteration of a guarantee not under seal, by the addi-
tion of a seal to the signature of the defendant, so as to
make it purport to be the deed of the defendant, was held
to be a material alteration which vitiated the instrument (c).

The alteration of the date of a bill of exchange is a ma-
terial alteration which, if not made with the consent of all
parties, avoids the bill (d). So, the alteration of a joint pro-
missory note into a joint and several promissory note, with-
out the consent of one of the makers, was held to avoid it
against him (¢). The alteration of a joint and several pro-
missory note by the addition of another maker was held to
be material, and to discharge a previous maker, without
whose consent the note was so altered(f). The addition of
a memorandum written in a corner of a promissory note
without the consent of the maker, “interest to be paid at £6
per cent. per annum,” was held to be a material alteration
which vitiated the note (9).

The addition to the acceptance of a bill of exchange of
the words “payable at A.,”’ without the consent of the
acceptor, is a material alteration and avoids the bill; for it
purports that the bill may be presented at a place which the
acceptor did not intend (h). For the same reason, the alte-
ration of a bill accepted payable at B. & Co.’s, by substitut-
ing E. & Co.’s for B. & Co.’s, without the consent of the

(a) Fairlie v. Christie, '7 Taunt.
416.

(b) Campbell v. Christie, 2 Stark. 64.

(ce) Davidson vy. Cooper, 11 M.& W.
778; 13 ib. 343.

(d) Master vy. Miller, 4T. R. 320;
and see Alderson v. Langdale, 3B. &
Ad. 660; Atkinson vy. Hawdon, 2 A.
& E. 628; Langton v. Lazarus, 5 M.
& W. 629.

(e) Perrving v. Hone, 4 Bing. 28,

(f) Gardner vy. Walsh, 5 E. & B.
83, overruling Catton v. Simpson, 8 A.
& E. 136; and see Gould y. Coombs,
1C. B. 543.

(9) Warrington vy. Early, 2H. &B.
763

(2) Burchfield v. Moore,3 EH. & B.
683; 23 L. J. Q. B. 261; Cowie v.
Halsall, 4 B. & Ald. 197; Calvert v.
Baker, 4 M. & W. 417; and sec
Crotty v. Hodges, 4 M. & G. 561.
SECT. Il. ALTERATION OF WRITTEN INSTRUMENT. 427

acceptor, was held to be material and to discharge the
acceptor (a). But the addition to the acceptance of a bill,
made by the acceptor himself at the request of the payee, of
the words “ payable at A.” was held not to be so material
an alteration as to make it a new bill requiring a new stamp,
because such alteration did not restrict the acceptance (8).

An alteration of a bill drawn and accepted payable in
France, by the holder inserting a fixed rate of exchange for
the payment, was held to be such a material alteration as
avoided the bill (c). An alteration of a blank indorsement
into a special indorsement in favour of the holder is not
material and does not avoid the instrument (d).

On the other hand, an alteration which is wholly immate- Tera ia
rial does not affect the validity of the instrument (e); as“ ee
in the following cases :—In a bond made to the plaintiff,
who was sheriff of the county of Oxford, but was not so
described in the bond, the words “ Sheriff of the county of
Oxford ”’ were added to the name of the plaintiff, after the
delivery of the bond; it was held that the alteration was in
a point not material, and therefore did not avoid the instru-
ment (f). The defendant gave a bond to the plaintiff con-
ditioned to pay £100 by six equal payments of £16. 18s. 4d.
on the 8rd October in every year until the full sum of “ one
pounds” was paid; the bond was left in the custody of a third
person, who had drawn it, and who afterwards without the
knowledge of either party interlined the word “hundred”
between “one” and “ pounds;”’ it was held that the altera-
tion was immaterial and did not avoid the bond, because it
did not alter the manifest meaning of it (7). An alteration
of an instrument by correcting the Christian name of a per-
son, which had been incorrectly stated in the instrument,
was held immaterial and not to vitiate the instrument (h).
The defendant was tenant to the plaintiff of a farm from

(a) Tidmarsh y. Grover, 1M.&8. L. Rep. 1 C. P. 340, 353.
735. (e) Sanderson v. Symonds, 1B. & B,
(6) Walter v. Cubley, 2.C. & M. 151. 426. —
(ce) Hirschfield v. Smith, L. Rep. 1 (f) Pigot’s case, 11 Co. Rep. 26 b.
C. P. 340; 85 L. J. C. P. 177. (9) Waugh v. Bussell, 5 Taunt. 707.
(d) Clark y. Piggott, 1 Salk. 126 ; (h) Trew v. Burton, 1 C. & M.
12 Mod. 193; Hirschfield v. Smith, 533,
428 CHAP. [V. THE DISCHARGE OF CONTRACTS.

year to year upon certain terms as to the mode of tillage
contained in a written agreement which had been signed by
him, and which appeared to have been altered by changing
the term of years mentioned in it from seven to fourteen ; it
was held that as the contract of the parties incorporated
only so much of the written instrument as was applicable to
a yearly holding, the duration of the term was immaterial,
and the alteration in it did not affect the contract (a).

A policy of insurance on a ship for a certain voyage and
“during her stay”’ at certain ports, gave in express terms
liberty “to sell, barter, load, and unload goods at all the
ports ;”? the insured added the words “and trade’ after
“stay” and submitted the alteration to the underwriters,
some of whom assented to it, and others refused their as-
sent; in an action against one who refused, it was held that
the alteration was immaterial, and that it did not avoid the
policy (0).

In Pigot’s case (c) it is laid down that “if the obligee
himself alters the deed, though it is in words not material,
yet the deed is void;” and it is laid down in Sheppard’s
Touchstone to the same effect that “if the alteration be
made by the party himself that owneth the deed, albeit it
be in a place not material, and that it tend to the advantage
of the other party, and his own disadvantage, yet the deed is
hereby become void” (d). But it does not appear that there
are any decisious which support this proposition to its full
extent; and the case of insurance above cited seems to
establish the contrary (e).

Effect of An instrument vitiated by alteration is void altogether, so

alteration ep : :

in avoiding that it is no longer available even as to those of its terms

the insttu- which are not affected by the alteration (f). Thus, a bill of
exchange having been altered by inserting the words “ pay-
able at A.” without the consent of the acceptor, though the

effect of such words did not restrict the general acceptance,

(a) Earl Falmouth v. Roberts, 9 (d) Shepp. Touch. p. 69.

M. & W. 469. (e) Sanderson vy. Symonds, supra.
(6) Sanderson v. Symonds, 1 B. & (f) Mollett v. Wackerbarth, 5 C.B.
B. 426. 181, 193; per Maule, J., Burchfield

(e) 11 Co, 27 6. y. Moore, 3 H. & B. 683.
SECT, II. ALTERATION OF WRITTEN INSTRUMENT. 429

yet the acceptance was held to be wholly avoided (a). So it
was laid down in Pigot’s case (b), ‘if a deed contains divers
distinct and absolute covenants, if any of the covenants are
altered by addition, interlineation, or rasure, this misfeas-
ance ex post facto, avoids the whole deed.”—“ If two are
bound in a bond, and afterwards the seal of one of them is
broken off, this misfeasance ex post facto avoids the whole
deed against both’’(c). But if several persons covenant or
bind themselves severally to pay several distinct sums, it is
as several deeds written in one and the same piece of parch-
ment ; and the breaking off of the seal of one does not affect
the instrument in respect to the others (d).

Where the acceptance of a bill of exchange is avoided by
an alteration subsequently made, an indorsee taking the bill
after the alteration, though without notice of the alteration,
and though he gave value for it, cannot recover against the
acceptor (ce).

A deed which has been avoided by an alteration, though
it may cease to have any operation in respect of pending
obligations which would have arisen from it had it remained
unaltered, may nevertheless be available to prove a right or
title created by it previous to the alteration (f). Thus, the
deed of settlement of a company executed by the defendant
was materially altered, and it was held that though the
liability of the defendant under the deed might be extin-
guished, the deed might nevertheless be given in evidence to
prove the fact of the defendant being a shareholder, without
any explanation of the alteration (g). A deed of demise con-
taining covenants was cancelled after entry and the accrual of
rent, and it was held that though the cancellation might ex-
tinguish the covenants, the deed was still available to show
what estate passed under it, and to support an action for the
rent reserved on the demise (hk). A bill of sale of goods was

(a) Burchfield v. Moore, supra. & B. 683.

(2) 11 Co. Rep. 28 db, (f) See Shaw v. Jakeman, 4 East,

(c) Tb. 201.

(d) Mathewson’s case, 5 Co. 24; (g) Agricultural Cattle Ins. Co. v.
Collins v. Prosser, 1 B. & C. 682. Fitzgerald, 16 Q. B. 432.

(e) Master v. Miller, 4 T. R. 320; (h) Lord Ward v. Lumley, 5 H. &

5 ib. 367 ; Burchfield v. Moore,3 H.  N. 87; 656; 29 L. J. Ex, 322.

Altered
instrument
available to
prove pre-
vious right.
Alteration
by accident
or mistake.

Alteration
by consent
ot both
parties.

430 CHAP. IV. THE DISCHARGE OF CONTRACTS.

altered after execution by disannexing the inventory of the
goods and replacing it with a fair copy; it was held that the
property in the goods passed under the bill of sale and re-
mained in the assignee, and that the filing of a copy of the bill
of sale under the Bills of Sale Act, 17 & 18 Vict. c. 36, was
valid, notwithstanding the previous alteration of the bill (a).

An alteration may be accounted for and explained on the
ground of accident, and evidence may be adduced to show
the original state of the instrument (d) ; thus, a deed from
which the seal had been torn off by a child was held to re-
main valid (c) ; so, a deed of which the seal was eaten off
by rats (d). So, it may be shown that the alteration was
made by mistake (e).

An alteration made in a written agreement by the consent
of both parties, upon a change of intention respecting their
contract, becomes a new agreement, and supersedes the
agreement first made (/).

But where the instrument, as first executed, was not
what. the parties meant to execute, and was not in the state
in which it was at first intended to be, and the alteration is
made only to put it in the state in which it was originally
intended to have been, this is not the case of substituting
a new and second contract in the place of a preceding
effectual one, upon a change of intention in the parties; but
merely making the contract what it was originally intended
to have been (q).

The distinction between an alteration made for the pur-
pose, or with the effect, of substituting a new agreement for
the original one, and an alteration made merely for the pur-
pose of correcting a mistake in the original agreement, has
a peculiar importance where the agreement is of a nature
to require a stamp; because in the former case the new

(a) Green v. Attenborough, 3 H. & (e) Raper v. Birkbeck, 15 Kast, 17;

C. 468; 34 L. J. Ex. 88. TVilkinson v. Johnson, 3 B. & C. 428 ;
(2) Sheppard’s Touchstone, 69. Novelli v. Rossi, 2 B. & Ad. 757.
(ce) Argoll vy, Cheney, Palm. 402, 403. (f) See ante, p. £13.
(d) Bolton v. Bishop of Carlisle, (g) Cole v. Parkin, 12 East, 471,

2H. Bl. 259, 263. 475; Bathe vy. Taylor, 15 East, 412.
SECT. II. ALTERATION OF WRITTEN INSTRUMENT. 431

agreement would require a new stamp (a) ; in the latter the
original stamp is sufficient for the corrected agreement, un-
less the correction itself has altered its nature to that of an
agreement requiring a different stamp (0).

A promissory note was originally expressed to be made
“for value received,’ but subsequently altered by agree-
ment of the parties by adding the words “for the goodwill
of the lease and trade of Mr. F. K., deceased ;”? it was held
to require a new stamp, because the words added made a
material ateration in the note and were not originally in-
tended to be inserted (c). A bill of exchange was drawn
and accepted on the lst August and was kept by the
drawer for twenty days, when it was agreed by the drawer
and acceptor that the date should be altered to the 21st
August, and the bill was altered accordingly by the drawer
and negotiated, but without a new stamp; it was held that
the bill by the alteration became a new bill, and required a
new stamp (d).

A bill of exchange drawn on the 3rd April was dated by
mistake the 3rd March instead of the 3rd April, and was
accepted in that form; afterwards by consent of all par-
ties the date was altered to the 3rd April as originally in-
tended ; it was held that, as the alteration was in further-
ance of the original intention of the parties and to correct a
mistake, it did not make the instrument a new bill and a
new stamp was not required (e). A bill of exchange was
intended to be drawn payable to order, but by mistake the
words “or order”? were omitted; after indorsement tlte
mistake was discovered,. and was corrected by the consent
of all parties ; it was held that a new stamp was not neces-
sary (f). A memorandum added to the acceptance of a bill
of exchange by the acceptor at the request of the payee

(a) Bowman v. Nichol, 5T.R. 537; and see Cordwell y. Martin, 1 Camp.
Hill v. Patten, 8 East, 373; Knill v. 79; 9 Hast, 190; Outhwaite v. Lunt-
Williams, 10 East, 431. ley, 4 Camp. 179.

(b) Cole v. Parkin, 12 East, 471; (e) Jacob v, Hart, 6 M. &8. 142;
and see Hamelin v. Bruck,9Q.B. Clifford v. Parker, 2 M. & G. 609.
306 ; Bradley v. Bardsley, 14M. & (f) Kershaw yv. Cox, 3 Esp. 246 ;
W. 873. Q cited in Bathe v. Taylor, 15 East, 417;

(c) Knill v. Williams, 10 East,431. Byrom v. Thomson, 11 A. & E. 31;

(d) Bathe y. Taylor, 15 East,412;  Cariss v. Tattersall, 2 M. & G. 890.
Alteration
by consent
ot both par-
ties.

432 CHAP. IV. THE DISCHARGE OF CONTRACTS.

making it payable at a certain place, as it does not restrict
the acceptance, is not such an alteration as makes it a new
bill and requires a new stamp (a).

A policy of insurance in which the name of a wrong ship
has been entered by mistake may be afterwards rectified
without a new stamp (b) ; but a policy of insurance cannot
be altered by the parties agreeing to insert a new subject of
insurance, without a new stamp as upon a new policy (¢).
A policy of insurance, through a misunderstanding by the
broker of the instructions of his principal, had been made on
“ship and outfit” instead of on “ship and goods,” and
afterwards with the consent of the underwriters it was al-
tered to “ship and goods,” but without a new stamp; it
was held that the insured could not recover upon the policy
as on “ship and goods” for want of the proper stamp (d) ;
nor could he recover upon the policy as originally made on
“ship and outfit,” because it had been superseded by the
new policy on “ ship and goods” (e).

So long as the contract remains incomplete, or, as it is
called, in fiert, the parties may make what alterations they
please; and as the stamp is not in use until the contract is
complete, any alteration within the scope of the stamp will
not render a new stamp necessary (f}. Bills of exchange and
promissory notes remain i fiert until the lability is complete,
and until then they may be altered without a new stamp (9).
An accommodation bill or note is not considered as issued
until it is in the hands of some person entitled to recover
upon it; therefore until such issue it may be altered by the
parties without a new stamp (h).

A deed was executed with a blank left for a sum of
money to be afterwards ascertained and inserted, and the
blank was afterwards filled up with a certain sum by con-

(a) Walter v. Cubley, 2C.&M.
151.

(b) Robinson v. Touray, 1M. & 8.
217.

(ce) Will vy. Patlen, 8 East, 373;
and see French v. Patten, 1 Camp. 72.
(@) Hill v. Patien, 8 Bast, 373.

(e) French y. Patten, 9 Kast, 351;
1 Camp. 72; see Sawtell vy. Loudon,
5 Taunt. 359,

(f) Jones v. Jones, 1 C0, & M. 721;
Spicer v. Burgess, 1 C. M. & R. 129;
Hudson v. Revett, 5Bing. 368 ; Ma-
son v. Booth, 5 M. & 8. 228.

(g) Webber vy. Maddocks, 3 Camp.
1; Hennerly vy. Nash, 1 Stark. 452;
Walton v. Hastings, 4 Camp. 223.

(h) Downes v. Richardson, 5 B. &
Ald. 674; Tarleton v. Shingler, 7 C,
B. 812.
433

sent and in the presence of all parties, the deed was held to
be valid on the ground that there was no complete execu-
tion until the blank was filled in («). A deed was executed
by the defendant whereby he covenanted to deliver up to
the plaintiff certain articles “as per schedule annexed” ; at
the time of the execution of the deed there was no schedule
annexed, but it was annexed after the execution by an agent
of both parties; it was held that the schedule formed no
part of the deed (0).

SECT. IJ. ALTERATION OF WRITTEN INSTRUMENT.

Where a written document is produced containing a ma- Party pro-
terial alteration, it lies upon the party producing it to ex- eee
plain the alteration, so as to show that it does not affect the ae
validity of the instrument in respect of the issue which it is the altera-
produced to prove (c) ; but he is not bound to account for al- cae
terations which are not material to that issue (d). In an
action on the acceptance of a bill of exchange in which the
defendant pleaded a traverse of the acceptance, the plain-
tiff put in the bill, which appeared to have been altered
from “three”? months to “ two ” months, but offered no evi-
dence to account for the alteration; it was held that the
jury could not, on mere inspection of the bill, decide whether
it was altered at the time of making, and that the plaintiff

must be nonsuited (e).

In general, the loss of a deed or written agreement does Loss of
not affect the right of a party arising out of the contract pina
contained in it, further than occasioning a difficulty of proof. ment.
He is entitled, upon proof of the loss, to give secondary
evidence of the contents of the instrument (f); and such

evidence is admissible even in the case of a written con-

(a) Hudson v. Revett, 5 Bing.
368, where see the observations of
Best, C.J., as to the effect of an alte-
ration of a deed with the assent of
parties, p. 388; and see as to the
execution of a deed with a blank to
be afterwards filled up, ante, p. 79.

(6) Weeks v. Maillardet, 14 East,
568.

(c) Henman v. Dickinson, 5 Bing.
183; Knight v. Clements, 8 A. & KE.
215, 220; per Parke, B., Earl Fal-

mouth vy. Roberts, 9M. & W. 469,
471; Parry v. Nicholson, 13 M. & W.
778,779; Cariss v. Tattersall, 2M.
& G. 890; Clifford v. Parker, 2 M.
& G. 909. :

(d) Sibley v. Fisher, 7 A. & BH. 444.

(e) Knight v. Clements, 8 A. & E.
215; and see Clifford v. Parker, 2
M. & G. 909.

(f) Read v. Brookman, 3 T. R.
151; see Taylor on Evidence, 4th ed. |
414.

25
434 CHAP. IV. THE DISCHARGE OF CONTRACTS.

tract within the Statute of Frauds (a), or of a written pro-
mise to pay a debt barred by tho Statute of Limitations (b),
which are required by those statutes to be in writing.

Loss of An exception to the general rule occurs in the case of

pesotiable negotiable instruments, which are regulated by the custom
of merchants. The holder of a negotiable bill or note can-
not insist upon payment without producing and offering to
deliver up the instrument (c). The same rule does not
apply to a non-negotiable bill or note (d) ; but it applies to
a negotiable bill or note, although, when lost, it was in a
non-negotiable state, as a bill or note payable to order
and lost before indorsement (ce). In an action brought
upon a bill or note, the defence that the instrument is lost
must be specially pleaded, and if merely the making of the
instrument is denied, upon the trial of such issue the or-
dinary rule applies, that upon satisfactory evidence being
given to account for its non-production, secondary evidence
of its contents is admissible (f).

Courts of equity, however, grant relief against the loss
of a negotiable instrument by compelling the party liable
upon it to pay, upon the loser giving to him a sufficient in-
demnity against future claims (g); and now a similar relief
may be obtained by the loser in the Courts of Common Law,
under the C. L. P. Act, 1854, 17 & 18 Vict. c. 125, s. 87,
whereby it is enacted that “in case of any action founded
upon a bill of exchange, or other negotiable instrument, it
shall be lawful for the Court, or a judge, to order that the
loss of such instrument shall not be set up, provided an in-
demnity is given, to the satisfaction of the Court, or judge,
or a master, against the claims of any other person upon
such negotiable instrument”? (/).

(a) See Nichol v. Bestwick, 28 L. J. (e) Ramuz vy. Crowe, 1 Ex. 167.
Ex. 4. (f) Blackie y. Pidding, 6 C. B.

(6) Haydon v. Williams, 7 Bing. 196; Charnley vy. Grundy, 14 0. B.
163. 608.

(ec) Hansard vy. Robinson, 7B. & (g) See Hansard v. Robinson, 7 B.
C. 90; Ramuz v. Crowe,1 Ex. 167; & C. 90,95; Byles on Bills, 8th ed.
Crowe v. Clay, 8 Ex. 295; 9 Fx.604. 354.

(d) IVainy. Bailey, 10 A. & E. 616; (h) See Noble vy. Bank of England,
Charnley vy. Grundy, 14 C. B. 608. 2H. & C. 355; 33 L. J. Ex. 81.
SECT II]. PERFORMANCE OF CONTRACT. 435

Cuar. IV. Szor. III. Perrormancr or Conrracr.

Performance .............00cce ees 435 | Time of Performance............ 440
Tender of Performance......... 435 Where no Time appointed 443
Performance in particular In- Construction of Contracts as
stances :— Go UMS! sah cowiaucsomanees 444
Payment of Money ......... 436 Relief in Equity against
Sale of Goods ............0.c00- 437 Lapse of Time ............ 447
Sale of Land ..........cc.ce 439 | Place of Performance ......... 448

A Conrract may be discharged by performance. A promise Perform.
may be capable of performance, independently of any act or *"**
concurrence on the part of the promisee, or it may be inca-
pable of complete performance without some act or concur-
rence on his part ; thus, if a person undertakes to pay money
or deliver goods to another, he engages to do an act which
he cannot completely perform without the concurrence of the
other party in accepting the goods or the money (a).

Where the performance of the promise is independent of
the concurrence of the promisee, the promiser is bound to
the promisee for its complete performance at all events,
although it may depend upon the concurrence of a third
party over whom the promiser has no control (/)).

Where the performance of the promise is dependent Tender’of

‘ perform-

upon the concurrence of the promisee, and cannot be com- ance.
pleted without some act on his part, the promiser is not re-
sponsible for the promisee withholding his concurrent act ;
in such case the promiser discharges his liability by doing
all that is necessary on his part, so that the promisee has
the opportunity of accepting a complete performance (c).

The performance which is necessary to discharge a con- Perform-
tract must be in strict accordance with the terms of the con- {ust

tract, as appears in the following instances — ing tothe
A covenant to insure is broken if the premises are left in contract.
part uninsured for any time, although afterwards wholly in-

sured, and although no loss has occurred from the defective

(a) See Startup v. Macdonald, 6 (4) See ante, p. 369.
M. & G. 593, 610. (e) See “ Tender,” post, p. 451.

28 2
436 CHAP. IV. THE DISCHARGE OF CONTRACTS.

insurance (a). A covenant to insure in the names of certain
persons was held not to be performed by an insurance
effected in those names jointly with that of the coven-
antor (b). A contract providing for keeping up the insurance
of a ship was held to be broken by failing to keep the ship
actually insured for three days, although the usual slip for
the insurance had been delivered by the underwriters, in ac-
cordance with which the policy was afterwards executed, and
no loss was sustained by the omission (c).

In an action for a breach of a covenant in a farming lease
in selling a quantity of farmyard manure and allowing it to
be carried off the premises, the defendant pleaded that he
brought back a greater quantity of manure and of better
quality in place of that carried off; but the plea was held
bad as substituting a performance different from that con-
tracted for (d).

Where a party had contracted to deliver up a lease, it was
held that he did not perform his contract by delivering it up
cancelled with the seal cut off, although the term had ex-
pired and the instrument had no further operation (e).

Perform. In a contract to pay money the debtor performs his pro-
ance ofcon- mise by paying the money at the time and in the manner re-
pay money. quired by the terms of the contract ; the performance of a
contract to pay money is commonly known by the term pay-
ment. The term payment is also used to designate the
giving and acceptance of money in satisfaction of debts,—
not in strict performance of the contract to pay them, but
after a default has been made in payment according to the
contract, and a right of action has consequently accrued for
the breach of contract; the payment is then made in satis-
faction of the right of action. Payment in satisfaction will

(a) Penniall vy. Harborne, 11 Q. B. (b) Penniall v. Harborne, 11 Q. B.
368 ; relief may be obtained against a 368.

forfeiture for breach of a covenant to (c) Parry vy. Great Ship Company,
inaure against loss by fire whereno 4B.&8. 556; 33 L.J.Q. B. 41.
loss has happened, in certain cases, (d) Leigh v. Lillie,6 H. & N. 165;

under the statutes 22 & 23 Vict.c.35, 30. J. Ex. 25.
8. 4,6; and the C. L. P. Act, 1860, 23 (e) Richardson vy. Barnes, 4 Ex.
& 24 Vict. c. 126, 8. 2. 128.
SECT. III. PERFORMANCE OF CONTRACT. 437

be treated of amongst the modes of discharging rights of
action arising out of contracts after breach (a).

Besides the mere delivery of money, there are other trans-
actions which may become by agreement of the parties equi-
valent to payment, and may be so called, as a set-off of mu-
tual debts, delivery of goods instead of money, etc. ; these
will be more conveniently noticed, once for all, in treating
of payment in satisfaction (4),

Upon a contract for the sale and delivery of goods the sidan:
seller must deliver the exact quantity contracted for, and ance of con-
does not perform the contract on his part by delivering epee
larger quantity which he insists upon the buyer accept-,800ds,as to
: ee 4 ; quantity
ing (c) ; in such case the buyer is, in general, entitled to re-
fuse the whole (d). So, if the seller delivers a smaller quan-
tity of goods than is contracted for in discharge of his con-
tract, it is not sufficient, and such smaller quantity may
be refused by the purchaser (e) ; but if the purchaser ac-
cepts the quantity delivered, the seller is entitled to recover
from him the price of the goods so accepted (f).

In contracts for the sale of goods the quantity of goods to
be delivered is sometimes specified with the addition “ more
or less;” in such cases the quantity which the seller may de-
liver in fulfilment of his contract has certain reasonable
limits of allowance according to the circumstances of each
case (g); so, in a contract to deliver “about” a specified
quantity of goods (h). Under a contract to sell and deliver
a certain quantity of goods then being in a warehouse in
Liverpool, the giving a delivery order of “about” the quan-
tity, evidence being admitted of a usage of warehousemen

(a) See post, Chap. IV, Sect. VIT, 9B. & C. 386; Hoarev. Rennie, 5 H.

“ Payment.” & N.19; 29 L. J. Ex. 73.
(6) See post, p. 474. (f) Morgan v. Gath, 3 H. &C.
(ce) Cross v. Eglin, 2B. & Ad. 106; 748;34 L.J. Ex. 165.

Dixon v. Fletcher, 3 M. & W. 146; (g) See Cross vy. Eglin, 2 B. & Ad.

Hart v. Mills, 15 M.& W. 85; and 106; Cockerell v. Aucompte, 2 C. B.
see Cunliffe v. Harrison, 6 Ex. 903. N.S. 440; 26 L. J. C. P. 194 ; Gibbs
(d) 1b.; Levy v. Green, 8 E.& B.  v. Gray, 2H. & N. 22; 26 LJ. Ex.
75; 27 LJ. Q. B. 111; 2825. 319. 286.
(e) Waddington v. Oliver, 2 B. & (h) Bourne v. Seymour, 16 C. B.
P.N.R. 61; Ovendale vy. Wetherell, 337.
As to the
quality of
the goods.

438 CHAP, IV, THE DISCHARGE OF CONTRACTS.

there not to accept delivery orders in any other form, was
held to be a sufficient performance (a).

Upon a contract for the sale and delivery of goods the
seller must also observe any warranty or stipulation as to
the quality of the goods. Upon a contract of sale of a spe-
cific chattel the promise of the vendor is performed by the
delivery of the chattel sold, although there may be defects
in the chattel; the vendor is not responsible for defects, un-
less he has been guilty of fraud, or has warranted the qua-
lity of the chattel (b). If the contract contains a warranty by
the seller of the quality of the chattel, a mere breach of the
warranty does not entitle the purchaser to refuse or return
the chattel, unless he has specially stipulated in the contract
for the right to do so, or has made the contract conditional
upon the warranty; but it only gives him a right of action
for the breach of warranty (c).

Upon a contract for the sale of goods by description or
sample the seller must deliver goods agreeing with the de-
scription or sample by which they are sold (d) ; and if the
goods do not agree with the description or sample, the pur-
chaser may refuse to accept them (¢). The plaintiff, having
contracted to supply coals to the defendant of a certain de-
scription, delivered some of that description and some of an
inferior quality mixed together ; it was held that as they were
mixed, the whole of the coals were to be considered as not
according to the contract, and the defendant was entitled to
refuse to accept them (f). On a sale by sample without a
warranty, the contract is discharged by delivery of goods
corresponding with the sample, and the purchaser, in the
absence of fraud, is not answerable for any defect in the
goods, provided they agree with the sample (4).

v. Hingsford, 13 C. B. N.S. 447; 32
L. J.C. P. 94.
(e) Street v. Blay, 2 B. & Ad. 456,

(a) Moore v. Campbell, 10 ix. 323 ;
23 L. J. Ex. 310.

(4) See ante, p. 185, 198.

(c) Weston v. Downes, Doug. 23 ;
Street vy. Blay,2 B. & Ad. 456; Gom-
perlz v. Denton, 1 C. & M. 207;
Dawson v. Collis, 10 C. B. 523; Ban-
nevrmanv. While, 10 C. BL N.S, 844;
311.3. C. 2. 28 ; see anfe, p, 198, 199.

(d) Hibbert v. Shee, 1 Camp. 1138 ;
Nichol y. Gudts, 10 Ex, 191; Josling

463; Lorymer v. Smith, 1B. & C.1;
Wells v. Hopkins, 5 M. & W. 7.

(f) Nicholson vy. Bradfield Union,
L.R. 1 Q. B. 620; 35 L. J. Q, B. 176.

(g) Parkinson v. Lee, 2 East, 314 ;
Carter vy. Crick, 4 I. & N. 412; 28
L. J. Ex. 238 ; and see Scott v. Little-
dale, 8 I. & B. 815.
439

Upon a contract for the sale of land, in the absence of Perform.
express conditions to the contrary, the vendor must make a ee
good title to the land (a). A court of equity will not com- se of land.
pel a purchaser to take a doubtful title (b) ; and it has been
held in a court of law that a good title to be made under
a contract for the sale of land means not merely a good legal
title, but such a title as a court of equity would require as
sufficient ground for compelling specific performance against
the purchaser (c).

A purchaser agreeing to take the vendor’s title “ without

dispute” is precluded, both at law and in equity, from rais-
ing any objection to it (d). So, where the purchaser agrees
to take such title as the vendor has, he is not entitled to a
better one (e). So, if he agrees to take a title commencing
from a certain deed, he may be precluded from claiming an
absolutely good title (f). Upon a sale of a fee-farm rent,
subject to the condition that no evidence was to be required
of the payment and no objection taken in consequence of the
non-payment, the purchaser was held not entitled to object
that it was extinguished under stat. 3 & 4 Wm. IV. c. 27,
s. 34, by reason of not having been paid for twenty years (4).
Where by the conditions of sale of a lease, it was provided
that the lessor’s title should not be produced or inquired
into, the purchaser was precluded from objecting to the
lessor’s title (i).

On a contract for the sale of land by description the pro-
perty proposed to be conveyed must agree with the descrip-
tion of the property contracted for; and if it does not, a

SECT. Il]. PERFORMANCE OF CONTRACT.

(a) Hall v. Betty, 4 M. & G. 410;
Souter v. Drake, 5 B. & Ad. 992;
Doe vy. Stanion, 1M. & ‘W. 695, 701.

(6) Marlow v. Smith, 2 P. Wms.
198 ; Shapland v. Smith, 1 Bro. C. C.
45; Vancouver v. Bliss, 11 Ves. 458,
465; Jervoisev. Duke of Northumber-
land, 1 IJ. & W. 559; Pyrke v. Wad-
dingham, 10 Hare, 1.

(c) Jeakes v. White, 6 Ex. 873;
and see Boyman v. Gutch, 7 Bing.
379; Curling vy. Shuttleworth, 6 Bing.
121; Simmons v. Heseltine, 5 C. B.
N. 8.554; 28 L. J.C. P. 129; Stevens
y. Austen, 30 L. J. Q. B. 212.

(d) Duke v. Barnet, 2 Coll. C. C.
337.

(e) Wilmot v. Wilkinson, 6 B.& OC.
506; Freme v. Wright, 4 Madd. 364;
Cattell vy. Corrall, 3 Y.& C. Ex. 418;
Hume v. Pocock, L. Rep. 1 Eq. 423;
ib. 1 Ch. Ap. 879; 35 L. J. O. 781.

(f) Sharland v. Leifchild, 4C. B.
529; and see Sellick vy. Trevor, 11 M.
& W. 722.

(9) Hanks v. Palling,6 HW. & B. 659.

(h) Hume v. Bentley, 5 De G. &
Sm. 520; and see Darlington v. Ham-
ilton, Kay, 550; Shepherd v. Neatley,
1C0.M.&R.117.
Time of per-
formance.

440 CHAP. 1V. THE DISCHARGE OF CONTRACTS.

court of equity will not, in general, enforce the contract (a).
Under a contract of sale of freehold land the purchaser can-
not be compelled to take copyhold (0), or leasehold (c) ; so,
if he has contracted for copyhold, he cannot be compelled to
take freehold (d) ; so, if he has contracted for a certain term
of years, he cannot be compelled to take an appreciably shorter
term (c), or an underlease (f). Where land was sold and con-
veyed with a covenant that it was freehold, but it proved to
be copyhold, it was held that the covenant was broken (g).
A contract for the purchase of certain land prima facie would
mean the purchase of the fee simple; but if the purchaser
knew that the vendor had not such an estate, and did not
profess to have a fee simple, then the contract might import
such interest as the purchaser knew the vendor had; if the
purchaser had no such knowledge, he might exercise an
option of taking such estate as the vendor had, but could
not be compelled to take any other estate than that which
he contracted to purchase (h).

A contract for the sale of land is not satisfied by convey-
ing land subject to rights of which the purchaser had no
notice, as a right of sporting (7), or a right of common (J),
or aright of way (k); but where a right of way over land
contracted to be sold was obvious, consisting of a road
through it, the purchaser was held bound to complete the
purchase (1).

The performance must take place at the time appointed
by the contract. Thus, the acceptor of a bill must pay the
amount on the day the bill becomes due, and cannot dis-
charge himself by a tender of the amount on a subsequent
day, unless such tender is accepted in satisfaction by the

(a) Stanton v. Tattersall, 15m. & (f) Madeley v. Booth, 2 De G.&
G. 529; and see Flight v. Booth, 1 8. 718.
Bing. N. C. 370; Jones v. duney, 3 (g) Gray v. Briscoe, Noy. 142.
Camp. 285. (4) Per Kindersley, V.C., Coz v.

(6) Hick v. Phillips, Pr. Ch. 575. Middleton, 2 Drewry, 209.

(c) Drewe v. Corp, 9 Ves. 368; (t) Burnell vy. Brown, 1 Jac. & W.
Wright v. Howard, 1 Sim, & Stu. 168

190. (7) Gibson v. Spurrier, Peake, Ad.
(d) Ayles v. Cox, 16 Beav.23; and Ca. 49.
see Bower v. Cooper, 2 are, 408. (4) Dykes v. Blake, 4 Bing. N. C.

(e) Halsey v. Grant, 13 Ves. 73; 463.
Belworth vy. Hassell, 4 Camp. 140. (1) Bowles y. Round, 5 Ves. 508.
SECT. III. PERFORMANCE OF CONTRACT. 441

payee (w). By the custom of merchants three days of grace
are allowed on bills of exchange and promissory notes be-
yond the time appointed in them for payment, before they
are reckoned to be overdue (b) ; and bills payable in foreign
countries are allowed similar additional times, according to
the usance of the place of payment (c). The drawer or in-
dorser of a bill undertakes to pay the amount immediately
upon notice of dishonour being given ; and upon default an
action is maintainable immediately (d).

Where a certain space of time is allowed for the perform-
ance of the contract, as a day or several days, it is sufficient
if the performance be completed before the end of the last
day (e). In the case of a bill of exchange the acceptor has
the whole of the last day until twelve o’clock at night to
pay it (f).

If the performance is such that it requires the concurrence
of the promisee to complete it, the promiser must tender all
that is to be done on his part at a convenient interval before
the expiration of the time in order to allow the promisee to
complete it by acceptance. Ifa sum of money is to be paid
on a certain day, he must tender it a sufficient time before
midnight for the other party to receive and count it; or if
goods are to be delivered, he must tender them so as to allow
sufficient time for examination and acceptance of them (9).

If a certain place is fixed for the performance, the attend-
ance of both parties at that place is necessary to complete
the performance; but for the convenience of both parties,
and that neither may give longer attendance than is neces-
sary, the law fixes a particular time at which the presence of
each shall be sufficient. It is enough if each party be at the
place at such convenient time before sunset on the last day
limited as that the act may be completed by daylight; and

(a) Hume v. Peplve, 8 East, 168 ; (e) Sheppard’s Touch. 378 ; Leftley
Poole v. Tumbridge, 2 M. & W. 223; — v. Mills, 4 T.R.170; Starlup v. Mac-
Dobie v. Larkan, 10 Ex. 776; and see donald,6M. & G. 598, 602, 619.
Turner v. Hayden, 4B. & C.1; and (f) Per Parke, B., Startup v. Mae-

see post, ‘“'Tender,” p. 454. donald, 6 M. & G. 593, 602; and see
(0) Brown v. Harraden, 4 T. R.  Leftley v. Mills, 4 T. R. 172.

148; Smith v. Kendall, 6 T. R. 123. (g) Wade’s case, 5 Co. Rep. 114
(c) See ante, p. 116. a; Startup v. Macdonald, 6M. & G.

(d) Siggers v. Lewis,1 C.M.& BR. 593.
370.
442 CHAP, IV. THE DISCHARGE OF CONTRACTS.

econ if the promiser tender to the promisee there, if present, or,

ance. if absent, be ready at the place to perform the act within a
convenient time before sunset for its completion, it is suffi-
cient. Ifit happen that both parties meet at the place at
any other time of the last day, or upon any other day within
the time limited, and a tender is made, it is sufficient (a).

This distinction is said to prevail in all the cases: — Where
a thing is to be done anywhere, a tender a convenient time
before midnight is sufficient ; where the thing is to be done
at a particular place, and where the law implies a duty on
the party to whom the thing is to be done to attend, that
attendance is to be by daylight, and a convenient time be-
fore sunset” (b).

“If a man be bound to pay twenty pound at any time
during his life at a place certain, the obligor cannot tender
the money at the place when he will, for then the obligee
should be bound to perpetual attendance, and therefore the
obligor, in respect of the uncertainty of the time, must give
the obligee notice that on such a day, at the place limited,
he will pay the money, and then the obligee must attend
there to receive it.—The same law it is if a man make a
feoffment in fee upon condition, if the feoffor at any time
during his life pay to the feoffee twenty pound at such a
place certain, that then etc. In this case the feoffor must
give notice to the feoffee when he will pay it, for without
such notice as is aforesaid, the tender will not be sufficient.
But in both these cases, if at any time the obligor or feoffor
meet the obligee or feoffee at the place, he may tender the
money”? (c).

A contract was made for the sale of ten tuns of oil to
be delivered to the purchaser within the last fourteen days
of March; the seller tendered the oil late on the 31st day
of March, the buyer being at his warehouse at that time, and
there being sufficient time before midnight for the buyer
to examine, weigh and receive the oil; it was held that the
seller had satisfied the contract on his part, although the

(a) Co. Lit. 202 a; Wade's case, 598, 624.
5 Co. Rep. 1l4a; Tinckler v. Pren- (2) Per Parke, B., Startup v. Mac-
tice, 4 Taunt. 549; per Parke, B., donald, 6 M. & G. 598, 625.
Startup vy. Macdonald, 6 M. & G. (ce) Co. Lit. 211 «.
443

jury found that by reason of the lateness it was an unrea-
sonable time of day for the tender of the oil (a).

SECT. 111. PERFORMANCE OF CONTRACT.

Where money is to be paid, or goods are to be delivered, Where no
or any other act is to be done, and no time is appointed for Banus
that purpose, the law implies that it is to be done at a rea- di
sonable time according to the circumstances (b). Thus,
where a vendor is bound by conditions of sale to deduce a
good title, but no precise time is fixed within which it is to
be done, he is not in default until after the lapse of a rea-
sonable time (c). A common carrier of goods, in the ab-
sence of express stipulation as to the time of delivering the
goods, contracts to carry and deliver the goods within a
reasonable time, having regard to all the circumstances of
the case (d). A written agreement for a partnership, no
time for its commencement being mentioned in the instru-
ment, was held to constitute a partnership commencing
immediately from the date of the agreement (ec). A bill
or note, not expressing any time for payment, is payable on
demand (/).

In some cases where the time is not expressly settled in
the terms of the contract, it is fixed by implication of law
arising out of the matter of the contract; thus, a general
letting of land, at a yearly rent, without any mention of the
duration of the term, creates a tenancy from year to year,
determinable by six months’ notice on either side before the
end of a current year (g). A contract of service for an in-
definite time is generally presumed, as a matter of fact, to
be a contract for a year; but there is no inflexible rule of
law to that effect (kh). In the hirmg of menial or domestic

(f) Whitlock. v. Underwood, 2 B.

(a) Startup vy. Macdonald, 6 M. &
. 593. & C. 157.

G

(b) Per Rolfe, B., Startup v. Mac-
donald, 6M. & G. 593, 610.

(c) Sansom v. Rhodes, 6 Bing. N. C.
261.

(d) Hales v. London and North-
Western Ry. Co., 4 B.& 8. 66; 32 L.
J. Q. B. 292; Taylor v. Great North-
ern Ry. Co.,L. Rep. 1 C. P. 385; 35
L. J. ©. P. 210.

(e) Williamsy. Jones, 5B. & C.108.

(9) Richardson v. Langridge, 4
Taunt. 128,131; see 14 M. & W. 687.

(A) See per Lord Ellenborough,
R. v. Dodderhill, 3 M. & 8. 248, 245 ;
per Heath, J., Richardson v. Lang-
ridge, 4 Taunt. 128, 131; Beeston v.
Collyer, 4 Bing. 309 ; Fawcett v. Cash,
5 B.& Ad. 904; Baxter v. Nurse,
6M. &G. 935; Latrman v. Oakford,
5 H. & N.635; 29 L, J. Ex. 459.
4A CHAP. IV. THE DISCHARGE OF CONTRACTS.

servants if no time is specified, the contract is by custom
determinable by a month’s notice on either side (a).

Ces A contract appointed to be performed “directly ’”’ was

ion of con- : .

tracts as to Construed to mean as soon as practicable, or by the earliest

eae opportunity ; it was said that it did not necessarily mean

anee, immediately, but that it comprehended a certain space of
time ; and it was held not to be properly described by
the phrase “within a reasonable time,” as it meant a less
protracted interval (b). So, a contract to be performed
“forthwith”? was held not necessarily to mean immedi-
ately (c). Upon a contract to deliver goods “ forthwith,”
the price to be paid within fourteen days from the making
of the contract, it was held that the parties intended the
goods to be delivered within the fourteen days (d). A con-
tract by a manufacturer to execute an order for iron hoops
“as soon as possible,” was held to mean as soon as he
could, and without unreasonable delay, regard being had to
his means of business and orders in hand, and without re-
gard to the means of getting them elsewhere (e).

A covenant in a bill of sale of goods to pay the sum se-
cured ‘immediately on demand” was construed to mean
within a reasonable time after demand, to be allowed for
the debtor to get the movey, and to seek the creditor or
some one authorized to receive it (f). So, where in a bill
of sale it was provided that, if the sum secured was not re-
paid at the time appointed by a notice to be given in writing,
the grantee might enter and seize and sell the goods, it was
held that the notice must allow a reasonable time for pay:
ment, and that, under the circumstances, half an hour’s no-
tice was not reasonable (4).

Where a charterparty provides that the ship shall pro-
ceed to a port for cargo and then proceed on her voyage

(a) Nowlan vy. Ablett,2 C. M. & (d) Staunton v. Wood, 16 Q.B. 638.

R. 54; odd v. Kerrich, 8 Ex. 151; (e) Attwood v. Emery, 1 C. BLN.
and see anfe, pp. 114, 422. 8.110; 26 L. J. C. P. 73.
(6) Duncan vy. Topham, 8 C. B. (f) Toms v. Wilson, 4 B. & 8.
225. 442, 455 ; 32 L. J. Q. B. 33; 382.
(c) Roberts y. Brett, 20 C.B.N.S. (g) Brighty v. Norton, 3B. & 8.

148; 341. J.C. P. 241. 305; 32 L. J. Q. B. 38.
SECT. III. PERFORMANCE OF CONTRACT. 445

with such cargo, the commencement of the voyage is when
the ship starts for the port of loading; and consequently
any exceptions in the charterparty of dangers of the seas
and navigation apply to that portion of the voyage, as well
as after the cargo is on board (a). A warranty given on
the sale of a horse in the form ‘“ warranted sound for one
month” was construed to mean a warranty that the horse
was sound at the time of the sale, provided complaint of un-
soundness was made within one month (0).

A deed, in general, bears a date, and it is common in the
contents of the deed to refer to the date for the purpose of
the computation of time. Where a deed has no date, or an
impossible date, and in the deed reference is made to the date,
that word is construed to mean the time of the delivery of
the deed; but where there is a sensible date, that word oc-
curring in other parts of the deed means the day of the
date, and not of the delivery. “If a lease be made by in-
denture, bearing date the 26th May, etc., to have and to
hold for twenty-one years from the date, or from the day of
the date, it shall begin on the 27th day of May. If the
lease bears date the 26th May, etc., to have and to hold
from the making hereof, or from henceforth, it shall begin on
the day on which it is delivered, for the words of the inden-
ture are not of any effect till the delivery, and thereby from
the making, or from henceforth, take their first effect. But
if it be a die confectionis, then it shall begin on the next
day after the delivery. If the habendwm be for the term of
twenty-one years, without mentioning when it shall begin,
it shall begin from the delivery, for then the words take
effect, as is aforesaid. If an indenture of lease bear date
which is void or impossible, as the 380th of February or
the 40th of March, if in this case the term be limited to
begin from the date, it shall begin from the delivery, as if
there had been no date at all’”’(c). In general, a party
executing a deed agrees that the date therein mentioned

(a) Barker vy. M‘Andrew, 18 C.B. B.N.S. 270; 28 L. J.C. P. 229.
N.S. 759; 84L. J. C. P.191; Bruce (b) Chapman v. Gwyther, L. Rep.
v. Nicolopulo, 11 Ex. 129; 4 lide it Q.B.463; 35 L. J. Q. B. 142.

Ex. 321; and see Crow vy. Falk, (c) Co. Lit. 466; Clayton’s case,
8 Q.B. 467 ; Falente vy. Gibbs, 6 C. 5Co.1 ; Goddard’s case, 2 Co. 5.
Construc-
tion of con-
tracts as to
time.

446 CHAP. IV. THE DISCHARGE .OF CONTRACTS.

shall be the date for the purposes of computation (a). A
covenant to pay a sum of money with interest “on the 29th
day of February now next ensuing” was construed to refer,
not to the February in the year next ensuing, (such year

not being a leap year), but to the 29th February in the next

ensuing leap year (4). Where contracts are appointed to be
performed “ from the date,” or “from the day of the date,”
or “ from” or “ until’’ some act or event, there appears to
be no general rule as to including or excluding the day
pointed at; but the computation is to be made accord-
ing to the reason and circumstances of the particular con-
tract (c).

The term “ month,” used in a contract, is to be taken as a
lunar month or a calendar month according to the inten-
tion of the parties; but the term is taken primd facie to
mean a lunar month, unless the context shows that it was
intended to mean a calendar month (d); except in the case
of mercantile instruments, where the months are taken by
the law merchant to be calendar months (e). LHvidence of a
usage in a particular trade, business, or place, is admissible
to show that the word, as used in a written contract, means
calendar month(f); so, that the word “days” means
working days (g).

In Acts of Parliament the term “ month” was construed
at common law to mean a lunar month, unless the context
showed that a calendar month was intended (.) But this rule
has been reversed by the statute 13 Vict. c. 21, s. 4, which
enacts “that in all Acts the word ‘ month’ shall be taken
to mean calendar month, unless words be added showing

(a) Per Bayley, J., Styles v. Wardle,
4B. & C. 908, 911.
(6) Chapman v. Beecham, 3 Q. B.
23.

(c) Pugh v. Duke of Leeds, 2 Gowp.
714; Wilkinson v. Gaston, 9 Q. B.
137; Webb v. Fairmaner, 3M. & W.
473 ; Lester v. Garland, 15 Ves. 248 ;
Pellew vy. Wonford, 9 B. & C. 134,
143; per Lord Ellenborough, Wat-
son v. Pears, 2 Camp, 294, 296.

(d) Lang v. Gale, 1 M. & 8. 111;
Cockell v. Gray, 3B. & B.186; RB. v.
Chawton, 1 Q. B. 247; Simpson v.
Margitson, 11 Q. B. 23.

(e) Per Littledale, J., R. v. Chaw-
ton, 1 Q. B. 247, 250; “there is no
difference in this respect between
what is called close credit, that is on
payment by bills, and the case of
open credit.” Per Parke, B., Webb
v. Fairmaner, 3 M. & W. 473, 476.

(f) See Simpson vy. Margitson,
11 Q. B. 23; Jolly v. Young, 1 Esp.
186.

(9) Cochran v. Retberg, 3 Esp. 121;
and see ante, p. 118.

(h) Crooke v. M‘Tavish, 1 Bing.
307 ; Lacon v. Hooper, 6 T. R. 224;
see Catesby’s case, 6 Co. 62.
SECT. III. PERFORMANCE OF CONTRACT. 44.7

lunar month to be intended.” In ecclesiastical matters the
term month primd facie means calendar month (a).

The construction of contracts with regard to the time of Relief in
performance is the same in equity and at law; but in some ey auis
cases where a default is made in performance of the contract not of the
at the time appointed which would operate as a breach of the con-
the contract at law, a court of equity will relieve against the sc
legal consequences of such default, or grant a specific per-
formance of the contract notwithstanding the default, upon
equitable terms ; insuch cases equity is said to consider the
time as not of the essence of the contract (0).

Thus, in the case of mortgages, courts of equity, regard-
ing the substance of the contract to be the pledge of the
estate for the debt, treat the time appointed in the mort-
gage deed for the repayment of the money, in default of
which the estate becomes forfeited at law, as not being of
the essence of the contract, and grant relief against the for-
feiture upon repayment of the debt and interest (c). So, in
the ordinary case of the sale and purchase of an estate, in
which a particular day is appointed for the completion of the
purchase, courts of equity consider that, the general ob-
ject of the contract being only the sale of the estate for a
given sum of money, the particular day named is not of the
essence of the contract, and that the stipulation means, in
substance, that the purchase shall be completed within a
reasonable time, regard being had to all the circumstances of
the case (d).

At law, if upon the sale of an estate the contract ig not
completed in any point by the time appointed, there is a
breach of the contract for which an action will lie, notwith-
standing that the party in default may subsequently, and

(a) Simpson v. Margitson,11Q.B. Thorold, 16 Beay. 59, 68.
23, 29; Catesby’s case, 6 Co. 62. (d) Seton v. Slade, 7 Ves. 265;

(b) Lloyd v. Collett, 4 Ves. 690; 4 2 White & Tudor, L. C. 3rd ed. 468;
Bro. C. C. 469; Hipwellv. Knight,1 per Alderson, B., Knight v. Hipweil,
Y. & Coll. 415; Parkin v. Thorold, 1 Y. & C. 415; Radcliffe v. War-
16 Beav. 59; Roberts v. Berry, 3 De  rington, 12 Ves. 326; Hearne v.
G. M. & G. 284, 289. Tenant, 13 Ves. 287; per K. Bruce,

(c) See per Alderson, B., Hipwell UL. J., Wells v. Maxwell, 33 L. J. C.
v. Knight, 1 Y. & C. 415; Seton v. 44, 49; Roberts v. Berry, 16 Beay.
Slade, 7 Ves. 265, 273; Parkin v. 31;3DeG.M.& G. 284.
Relief in
equity
against
lapse of
time.

Place of
perform.
ance.

448 CHAP. IV. THE DISCHARGE OF CONTRACTS.

even before action brought, be able and willing to complete
the contract (a). But in equity upon a bill for specific per-
formance of a contract for the sale of land, the Court directs
an inquiry as to the title, and the vendor, on the one hand, is
bound to make out a good title upon such inquiry, and, on
the other, is not precluded from exacting performance, if he
succeeds in then making a title, by reason of not having
been able before to do go (b).

Time is held to be of the essence of the contract in equity
in cases of direct stipulation to that effect, as where the par-
ties to the contract introduce a clause expressly stating that
time is to be of the essence of the contract; and it is also
held to be of the essence of the contract where the circum-
stances of the case necessarily show it to be so, as where the
matter of the contract is required for immediate use, or is of
a terminable or fluctuating character, or value (c). By the
conditions of sale of an estate it was stipulated that all ob-
jections to the title should be sent in within twenty-eight
days after the delivery of the abstract, and all objections not
made within the same time should be considered as waived ;
it was held that the time mentioned was of the essence of
the contract, although the condition did not expressly so sti-
pulate (d).

If no certain place is appointed for the performance of a
contract, the promiser is bound at his peril to find the pro-
misee within the time limited, if he be within the four seas,
in order to complete the performance (e). It is laid down
by Littleton, that the obligor of a bond conditioned for the
payment of money at a particular day, is bound to seek the

(a) Wilde v. Fort, 4 Taunt. 334;
Dobell v. Hutchinson, 3 A. & BE. 355.

(4) Bennett College v. Carey, 3 Bro.
C. C. 390; Jenkins vy. Hiles, 6 Vea.
846; Wynn v. Morgan, '7 Ves. 202;
Paton v. Rogers, 6 Madd. 256; see
Stourton v. Meers, cited 2 P. Wms.
630 ; Coffin v. Cooper, 14 Ves. 205.

(c) Parkin v. Thorold, 16 Beav. 59;
Earl Darnley vy. London Chatham and
Dover Ry. Co., 33 L. 5.0.9; Mac-

bryde v. Weekes, 22 Beav. 533; Lord
Ranelagh v. Melton, 34 L. J. C. 227.

(d) Oakden v. Pike, 34 L. J. C. 620,
where see the remarks of Kindersley
V.C. upon the practice of the Court
in relieving parties from the effect of
their contracts in regard to time.

(e) Sheppard’s Touch. 186, 378;
Kidwelly v. Brand, Plowden, 71; per
Parke, B., Startup v. Macdonald, 6
M, & G. 593, 624.
7

SECT. III. PERFORMANCE OF CONTRACTS. 4A9

obligee, if he be in England, and at the set day to tender
him the money, otherwise he shall forfeit the bond (a).

In the case of a feofiment in mortgage “ the feoffor must
tender the money to the person of the feoffee, and it is not
sufficient for him to tender it upon the land; otherwise it is
of a rent that issueth out of the land. But if the condition
of abond or feoffment be to deliver twenty quarters of wheat
or twenty loads of timber or such like, the obligor or feoffor
is not bound to carry the same about and seek the feoffee,
but the obligor or feoffor before the day must go to the feoffee,
and know where he will appoint to receive it, and there it
must be delivered, and so note a diversity between money
and things ponderous or of great weight”? (b).

Where rent is reserved upon a demise, at common law the
lessee has until the last moment of the day to pay the rent ;
and if he tender it to the lessor personally a convenient time
before midnight, he is not liable to an action (c). But it is
competent to the lessee to protect himself from a forfeiture
for breach of a condition in nonpayment of rent, and it would
seem also from an action of debt for the rent reserved, by
being ready on the land at the door of the mansion house,
or the place most notorious, a convenient time before sunset
for the rent to be counted over and received, and remaining
there during that time, though the lessor be not there to
receive it (d). And at common law, in order to entitle a
lessor to re-enter and avoid the lease for forfeiture by breach
of the condition for the payment of rent, it is incumbent on
the lessor to demand the rent upon the land at the most no-
torious place on the day when it becomes due, a sufficient
time before sunset to admit of the payment being made (e).
But “a covenant for the payment of rent, at the time and in

(a) Litt. s. 340; and see Cranley
y. Hillary, 2 M. & 8.120, 122.

(b) Co. Litt. 210 b.

(ce) Keating v. Irish, 1 Lutw. 593 ;
Cropp v. Hambleton, Cro. Eliz. 48;
Co, Lit. 202 a; 211 a.

(d) Hill v. Grange, Plowd. 173;
Crouch vy. Fastolfe, T. Raym. 418 ;
Tinekler v. Prentice, 4 Taunt. 549.

(e) Co. Lit. 2014; 1 Wms. Saund.
286 b, (16) ; and see Haldane v. John-

son, 8 Ex. 689, 694; 22 L. J. Ex.
264, 265; and see the statute 4 Geo.
TI. ¢. 28, 8. 2, re-enacted by C. L. P.
Act, 1852, 15 & 16 Vict. 76, s. 210,
enabling the landlord to proceed in
ejectment upon his right of entry, in
certain cases, without a formal demand
of the rent. Doe d. Lawrence v. Shaw-
cross, 8 B. & C. 752; and see as to
proceeding in the County Court, 19 &
20 Vict. c. 108, s. 52.
26
Place of

perform.

ance,

450 CHAP. IV. THE DISCHARGE OF CONTRACTS.

the manner reserved, when no particular place of payment
is mentioned, is analogous to a covenant to pay a sum of
money in gross on a diay certain, in which case it is incum-
bent upon the covenantor to seek out the person to be paid,
and pay or tender him the money, and for the simple rea-
son, that he has contracted so to do” (a).

If a person makes a promissory note, or accepts a bill of
exchange generally, without restricting the place of payment,
he is bound to find out the holder when the bill or note is
due, and tender payment; he is not entitled to have it pre-
sented at any particular place for payment, nor is he entitled
to notice of indorsement, if it has been indorsed (4); but the
maker of the note, or acceptor of the bill may expressly qua-
lify his liability in this respect, and restrict it to payment
at a particular place (c).

Where a debtor entered into a composition with his credi-
tors whereby it was agreed that he should pay a certain com-
position upon their debts to be secured by promissory notes,
it was held that the debtor was bound to tender the promis-
sory notes to each creditor, and that a creditor to whom he
had omitted to tender the notes was not precluded by the
agreement from recovering the original debt, although he
might have received his notesif he had applied for them (d).

The duty of the debtor to seek the creditor in order to
pay him, where no particular place is agreed upon for pay-
ment, continues only whilst the creditor remains within the
realm of England; the debtor is not bound to go abroad to
seek his creditor, and if the creditor by going abroad pre-
vents the tender being made to him, the debtor is excused (e).
But in the case of a foreign contract, the performance of which
is not so restricted, the fact of the creditor being abroad is
no excuse for the debtor not tendering to him the perform-

(a) Haldane v. Johnson, 8 Ex. 689 ;

22 L. J. Ex. 264.

(b) Reynolds v. Davies, 1 B. & P.
625; Turner v. Hayden, 4 B.& 0.1;
per Parke, B., Poole v. Tumbridge, 2
M. & W. 228, 225; Price v. Price, 16
M. & W. 232, 242.

(c) As to the manner of accepting

bills payable at a particular place only,

see 1 & 2 Geo. IV. c. 78; Byles on

Bills, 8th ed. 180, 198.

iw Cranley vy. Hillary, 2 M. & 8.
(e) Co. Litt. 210 3.; Shepp. Touch.

378 ; and see Fessard v. Augnier, 18

C. B. N.S. 286; 341.3. 0. P. 135.
SECT. IV. TENDER. 451

ance which he has stipulated for (a). Thus, where the de-
fendant being indebted to the plaintiff, a foreigner resident
abroad, in a debt contracted abroad, made a deed of compo-
sition with his creditors whereby he undertook to pay a cer-
tain composition in the pound to his creditors, it was held
that he was not excused from tendering the amount of the
composition to the plaintiff by reason of the plaintiff being
resident abroad (4).

Cuap. IV. Sect. IV. Tenner.

Tender ... 451 | How Tender may be made.,..,. 455
Plea of Tender ........:006s0000 452 | Amount to be tendered......... 457
Continued Readiness to pay... 452 | Tender must be unconditional 458
Payment of Sum into Court... 453 | To and by whom Tender may

When Tender may be made ., 454 DE WMACE wise jcananass wesaaconnsos 459

   

Wuere the performance of the contract is dependent upon Tender.
some act of the promisee and cannot be completed without

his concurrence, if the promiser does everything on his part
necessary to a complete performance, but the promisee re-

fuses to concur in what is necessary on his part, the promiser

is discharged from liability for the non-completion of the
contract (c).

“Tn every contract by which a party binds himself to
deliver goods, or pay money, to another, he in fact engages
to do an act which he cannot completely perform without
the concurrence of the party to whom the delivery or pay-
ment is to be made. Without acceptance on the part of
him who is to receive, the act of him who is to deliver or
pay can amount only to a tender. But the law considers a
party who has entered into a contract to deliver goods or
pay money to another as having substantially performed it,
if he has tendered the goods or money to the party to whom
the delivery or payment was to be made” (d).

(a) Fessard v. Mugnier, 18 C. B. (c) See ante, p. 435.
N.S. 286; 34 L. J. C. P. 125. (d) Per Rolfe, B., Startup v. Mac-
(6) Ib. donald, 6 M. & G. 593, 610.

2a2
Plea of ten~
der in bar

of an action
for the debt.

Continued
readiness to
pay after
tender.

452 CHAP. IV. THE DISCHARGE OF CONTRACTS.

The term tender is specially applied to the discharge of
money debts, and in this application has a definite technical
meaning.

It was formerly held that a plea of tender was not in bar
of the action, but in bar of the damages only, because the
plea admitted the existence of the debt (a) ; but the con-
trary has since been decided, and it seems to be now clearly
settled that a plea of tender constitutes a complete answer
to the action. ‘The principle of the plea of tender is, that.
the defendant has been always ready to perform entirely the
contract on which the action is founded; and that he did
perform it, as far as he was able, by tendering the requisite
money ; the plaintiff himself precluding a complete perform-
ance by refusing to receive it.” It thus shows that the
plaintiff might have obtained what he claims without an
action, and that the action was unnecessary (0).

Tender has the same effect in equity of placing the credi-
tor in the wrong by his refusal, and making him liable for
the expense of the consequent litigation ; thus, a mortgagee,
who refuses a tender of the amount due, must pay the costs
of the redemption suit rendered necessary by his refusal (c).

The debtor, notwithstanding the refusal of his tender,
must continue ready and willing to pay on demand; and the
plea of tender, besides averring that the defendant tendered
the debt at the time when it became due, must also aver
that the defendant always was and still is ready (towjours
prist and uncore prist) to pay the debt (d). ‘ With respect to
the averment of fowjours prist, if the plaintiff can falsify it,
he avoids the plea altogether; therefore if he can show that
an entire performance of the contract was demanded and
refused, at any time when by the terms of it he had a right
to make such a demand, he will avoid the plea” (e). Readi-
ness before the time of performance is immaterial, inasmuch

(a) Johnson v. Clay, 7 Taunt. 486, 569; 22 L. J. ©. 1041; Hosken v.
487 ; Cooch v. Maltby, 23 L.J.Q.B. — Sincoch, 84 L. J. C. 435.

305. (d) Divon vy. Clark, 5 ©. B. 365,
(b) Divon v. Clark, 5 C. B. 365, 377.

377; James v. Vane, 2 FE. & TE. 883; (e) Dixon v. Clark, 5 C. B. 363,

29 LJ. Q. B. 169. 378; Cotton v. Godwin, 7 M. & W.

(c) Harmer y. Priestley, 16 Beay. 147.
SECT. LV. TENDER. 4538

as the creditor has no right to demand performance until the
appointed time.

If a tender has been duly made and refused, and the
creditor relies upon a subsequent demand and refusal in
order to show that the debtor did not continue ready and
willing to pay the debt, he must show that he demanded the
correct sum due; for a demand and refusal of a larger sum
would not be evidence of an unwillingness of the debtor to
pay the correct sum. So, where to a plea of tender the plain-
tiff replied a subsequent demand and refusal, it was held to
be incumbent on him to prove that after the tender admitted
in his replication, he demanded of the defendant the exact
sum specified in the plea as having been tendered (a).

The tender and continued readiness to pay exonerates the Payment
debtor from liability for the non-payment of the debt; but ro court
it does not discharge the debt, which remains still due and dered.
owing. Hence, the plea of tender must not only aver a
tender on the day when the debt was due and a subsequent
continual readiness to pay, but must be accompanied by a
payment into court of the money tendered. The defendant,
if he can maintain the plea, will then be entitled to judgment
against the plaintiff for his costs of defence (b). If the de-
fendant pleads a tender without paying the money into court,
the plaintiff is entitled to judgment for the amount of debt
to which the tender is pleaded, as being admitted to be due
and not paid (c).

As the plea of tender, if successful, shows that the action
was unnecessary and defeats it, the money paid into court
under the plea of tender, though it is taken out by the plain-
tiff, is not to be considered as money recovered by him in
the action; and therefore it cannot be reckoned towards the
amount of the sum recovered for which the plaintiff would
be entitled to sue in the superior courts instead of the county
courts, or for which he would be entitled to have his costs
taxed upon the higher scale (¢).

(a) Spybey v. Hide, 1 Camp. 181; (c) Chapman vy. Hicks, 2 C. & M.
and see Rivers v. Griffiths, 5 B. & 633.
Ald. 630. (d) James v. Vane, 2 EH. & EB. 883;

(6) Dixon vy. Clark, 5 C, B. 365, 29 L.d. Q. B. 169, overruling Cooch
377. vy. Maltby, 23 L. J. Q. B. 305,
When ton-
der may be
medo.

Debts of
indefinite
credit.

A154 CHAP. IV. THE DISCHARGE OF CONTRACTS.

If the debt be payable on a day certain, the debtor is
bound to tender on the precise day; and if he does so, and
the creditor refuses to receive the debt, the debtor is dis-
charged from the consequences of default in payment, pro-
vided he continues ready and willing to pay the money on
demand (a).

Thus, the acceptor of a bill of exchange or the maker of a
promi-sory note must tender the amount to the holder upon
the day when the instrument becomes due (b). “A plea by
the acceptor of a bill, or the maker of a note, of a tender post
diem is bad, notwithstanding the tender is of the amount of
the bill or note, with interest from the day-it became due up
to the day of the tender, and notwithstanding the plea alleges
that the defendant was always ready to pay, not only from
the time of the tender, but also from the time when. the bill
or note became payable” (c).

So, a covenant to pay on a certain day carl be discharged
only by actual payment or tender on that day; although, if
the party afterwards chooses to receive the money, that may
be pleaded by way of accord and satisfaction (d).

Payment post diem discharges a money bond by force of
the statute 4&5 Anne, c. 16, 5.12; but this enactment does
not enable the obligee to tender payment post diem; the
obligee may refuse a tender made post diem, and bring his .
action on the bond (e).

Debts may be contracted with an indefinite credit, which
the creditor may put an end to at any time either by a de-
mand of payment, or by commencing an action for the debt ;
and until the credit is so determined, the debtor, having
been always ready and willing to pay, may pay or tender
the amount of his debt in performance of his contract at
any time. Thus, a promissory note payable on demand is,
in general, due and payable at once without demand; and

(a) Poole v. Tumbridge, 2M. & W.
223, 225; Dixon v. Clark, 5 C. B.
365, 379; Dobie v. Larkan, 10 Ex.
776, 779.

() Hume v. Peploe, 8 East, 168 ;
Poole v. Lumbridge, 2M. & W. 223;
Dobie v. Larkan, 10 Ex. 776; see
ante, p. 440,

(c) Hume vy. Peploe, 8 East, 168;

Poole v. Tumbridge, 2 M.& W. 228 ;
Dixon v. Clark, 5 C. B. 3865, 379.

(d) Per Parke, B., Poole vy. Tum-
bridge, 2 M. & W. 228, 226; and see
post, p. 471.

(e) 2 Wms. Saund. 48 3, n. (%) ;
Player vy. Blandy, 10 Mod. 26;
Dixon v. Parkes, 1 Esp, 110; see
post, p. 478.
SECT. IV. TENDER. 455

the right of the creditor to sue upon it is so far complete at
the date of the note, that the Statute of. Limitation runs
against him from that date (a). But such a note ig not
considered as overdue so as to affect an indorsee with its
equities (0) ; and a tender of the amount of the note with
interest may be made at any time before it is actually de-
manded, or an action is brought upon it (c).

So, to actions framed in the general form of indebitatus
counts, the defendant may plead that he was always ready
to pay and that he tendered before suit; and it lies upon
the plaintiff to reply the facts showing that the debt was
payable upon a particular day, or that it was otherwise such
that the tender pleaded was not applicable (d). To an ac-
tion for money received by the defendant to the use of the
plaintiff, the defendant may plead that he was always ready
to pay and did pay when requested (e).

In such cases, unless the credit has been put an end
to by a demand for payment, the tender of payment may
be made at any time before process has actually issued.
Where the plaintiff had instructed an attorney to bring an
action for the debt, who had applied for process, it was held
that such facts afforded no replication to the plea of a
tender made before the process issued (/).

Where goods were pledged to secure a loan of money
lent for an indefinite time upon interest payable monthly,
and the lender gave notice to the borrower to pay a certain
amount, beg more than was then due for principal and
interest ; it was held that the notice, demanding an exces-
sive amount, was ineffectual to terminate the credit, so as
to justify the lender in selling the pledge upon default in

payment (9).

A tender must be made in such a manner and under such ee ey
be made.
(a) Maltby v. Murrells, 5H.& N. 8. 632; 28L. J. C. P. 220.
813; 29 L. J. Ex. 377; Norton v. (e) Kington vy. Kington, 11M. &
Eliam, 2M. & W. 461 ; and see W. 233.
Hartland vy. Jukes, 1 H. & C. 667 ; (f) Briggs v. Calverly, 8 T. R.
32 L. J. Ex. 162. 629 ; Moffat v. Parsons, 5 Taunt.
(0) Brooks v. Mitchell,9 M.& W. 307; and see Kirton v. Braithwaite,
15. 1M. & W. 310; Caine v. Coulton, 1
(c) Norton v. Ellam, supra; Cotton H.& C. 764; 32 L. J. Ex. 97.
v. Godwin, 7M. & W. 147. (9) Pigot v. Cubley, 15 C. B. N.S,

(d) Smith v. Manners,5C.B.N. 701; 83 L. J.C. P. 134.
How ten-
der may be
made.

In what
coin.

456 CHAP. IV. THE DISCHARGE OF CONTRACTS.

circumstances that the party entitled under the contract may
have an opportunity of seeing that what is presented for his
acceptance is really what he stipulated to have (a). “In
order to constitute a sufficient tender of money in payment,
there must be an actual production of the money, or a dis-
pensation of such production, actual or implied.—Great
importance, it was said by Lord Mansfield, attaches to the
production of the money, as the sight of it might tempt the
creditor to yield”? (b).

Money is not properly tendered when locked up in a box,
so that the party to whom it is offered cannot open it and
examine the contents. But a tender of a large sum of
money in purses or bags, being the usual manner of carry-
ing money, and which the creditor might open, if he pleased,
was held to be a good tender, provided the sum was cor-
rect (c). And so, a tender of. goods is not properly made
by an offer to deliver closed casks, said to contain the goods,
but the contents of which are not allowed to be seen and
examined (d).

A tender in payment of a money debt must be made in
the current coin of the realm (ce). By the 56 Geo. III. ec.
68, s. 11, it is enacted that “the gold coin of this realm
shall be the only legal tender for payments (except as there-
inafter provided) within the United Kingdom of Great
Britain and Ireland.’ And by s. 12 it is enacted that. no
tender of payment of money made in the silver coin of this
realm of any sum exceeding the sum of forty shillings at any
one time shall be reputed a tender in law, or allowed to be
a legal tender within the United Kingdom of Great Britain
and Ireland, either by tale or weight.” By “the Colonial
Branch Mint Act, 1866,” 29 & 30 Vict. c. 65, power is
given to Her Majesty by proclamation to declare that gold
coins made at colonial branch mints are to be a legal tender
for payments within any part of Her Majesty’s dominions

(a) Per Rolfe, B., Startup v. Mac- (c) Wade's case, 5 Co. Rep. 114 4;
donald, 6 M. & G. 593, 610; Isher- Co. Lit. 208 a.
wood vy. Whitmore, 10 M. & W. 757; (d) Isherwood v. Whitmore, 11 M.
Id 1d, 347, & W. 347.

(6) Finch v. Brook, 1 Bing. N.C.253, (e) See Wade's case, 5 Co. Rep.

257; Thomas y. Evans, 10 East 101. = 114 a.
SECT. IV. TENDER. 57

specified in such proclamation. No tender of payment can
be made in copper coin, where the amount of the debt is
such that it may be paid in gold or silver (a). By the
3.& 4 Will. IV. c. 98, s. 6, it is enacted that “ A tender
of the note or notes of the governor and company of the
Bank of England expressed to be payable to the bearer on
demand shall be a legal tender to the amount expressed in
such note or notes, and shall be taken to be valid as a
tender to such amount for all sums above five pounds on all
occasions on which any tender of money may be legally
made, so long as the Bank of England shall continue to pay
on demand their said notes in legal coin.”

Although a good tender ought to be made in the coin
of the realm and the money ought to be produced, yet the
party to whom the tender is made may make good what
would otherwise be insufficient by relying on a different
objection. If he claim a larger amount and give that as a
reason for not accepting the money, he cannot afterwards
object that the money was not produced, nor can he object
that it was offered in paper. If he object to accept the sum
tendered because it is in paper which he is not bound to re-
ceive, he gives the party tendering an opportunity to make
his tender in coin; but if he puts his refusal upon a dif-
ferent ground, he waives the objection as to the quality of
the tender (6). Accordingly, a tender in country bank notes,
or by a check on a banker, is good, if the creditor only ob-
jects to the amount and not to the quality of the tender (c).

A tender of a larger sum of money than is due is good; amount to
and the creditor ought to accept so much of it as is due to be ter
him (d). So, the production of money to a larger amount
than is due, with a request to the creditor to take what is
due, is a good tender (e). But the tender of a larger sum

than is due, with a demand of change, is not a good tender,

(2) 2S8tephen’s Blackstone, 5thed., Caine v. Coulton, 1 H. & C. 764;
542

82 L. J. Ex. 97.
(B) Per ae B., Polglass v. (d) Wade's case, 5 Co.115 a; Dean
Oliver, 2 C. & J. 15. v. James, 4B. & Ad. 546; Astley vy.

(e) Polglass y. Oliver, 20.&J3.65; Reynolds, 2 Str. 915, 916.
Jones y. Arthur, 8 Dowl., 442 ; and see (e) Bevans v. Rees, 5 M. & W. 306
4.58 CHAP. IV. THE DISCHARGE OF CONTRACTS.

Amount of if the creditor refuses to give change, and objects to take

tender.

the money on that account (a).

Tender of a smaller sum, made in respect of a single en-
tire claim of a larger amount, is inoperative ; the creditor
not being bound to accept less than his whole demand (0b).
The debtor is not entitled to apply a set-off in reduction of
the amount due upon a single entire demand, so as to make
a tender of the residue sufficient; a set-off, in the absence
of agreement respecting it, being available only by virtue of
the statute 8 Geo. II. c. 24, in case of the creditor bringing

an action (c).

A plea of tender pleaded to part of the general claim in

an indebitatus count is admissible, because the claim may

be composed of various debts, and therefore the tender may
have been well made in respect of a single distinct debt (d) ;
and if in fact it is not so, and the tender made was ozly
sufficient to satisfy part of an entire demand, the plea may
be met by a replication to that effect (e). A plea of tender
to part of the claim under several indebitatus counts is
also admissible, and will be applied according to the evi-

dence (f).

A debtor being indebted in respect of several distinct
contracts to the same creditor, may make a tender in re-
spect of any one of them, specifying on which account the
tender is made. If he tenders without appropriating the
amount to a particular debt, and it is not sufficient to cover

all, it is not a good tender (9).

Tender If the tender is made upon a condition which the creditor

must be un-
conditional

has a right to object to, itis not a good tender (k). Thus,

if it is made upon the condition that the creditor by ac-
cepting it shall admit that no more is due in respect of the

(a) Betterbee v. Davis, 3 Camp.
70; Robinson v. Cook, 6 Taunt. 336.
(6) Dixon vy. Clark, 5 C. B, 365.

(ec) Searles v. Sadgrove, 5 BE. & B.
639 ; 25 L. J.Q. B. 15; Phillpotts
v. Clifton, 10 W. R. Ex. 135; and
see post, Chap. IV, Sect. XI, “ Set-
off.”

(d) Jones v. Owen, 5 A. & BH. 222;
Brandon v. Newington, 3 Q. B. 915;

Hesketh v. Fawcett, 11 M. & W. 356.
(e) Zyler v. Bland, 9 M. & W. 238;
Searles v. Sadgrove, 5 E. & B. 639;
25 L. J. Q. B. 15.
(f) Robinson v. Ward, 8 Q. B. 920.
4 (9) Hardingham y. Allen, 5 C. B.
93.
(h) Eckstein v. Reynolds,7 A. & B.
80; per Maule, B., Bevans y. Rees, 5
M. & W. 306, 309.
459

debt for which it is tendered, it is not a good tender (a). A
tender of a quarter’s rent coupled with a demand of a re-
ceipt to a particular day, it being disputed whether one or
two quarters’ rent was due, was held not to be a valid
tender (b). It has been held that an offer to pay the money
upon the creditor giving the debtor a receipt is not a good
tender (c) ; but if no objection is made on that account, and
the creditor refuses the money on account of claiming more
to be due, he cannot afterwards object to the tender because
a receipt was required as the condition of payment (d). The
debtor, after paying the debt, if it is above the sum of £2, is
entitled by statute to demand a receipt properly stamped (e).
A tender made “under protest” is valid; the effect being
not to impose a condition on the acceptance of the money,
but merely to obviate any effect the payment, without pro-
test, might have as an admission of the validity of the
claim (f).

SECT. IV. TENDER.

Tender to one of several joint creditors, or by one of seve- To and by
ral joint debtors, is a valid tender (g). ae
Tender of the debt may be made by any one acting on ™d
behalf of the debtor; or by any one professing to act on his
behalf, if the tender is afterwards adopted and ratified by the
debtor (h). And tender may be effectually made to any one

authorized to receive payment of the debt (2).

(a) Evans v. Judkins, 4 Camp. 156 ;
Strong v. Harvey, 3 Bing. 304; Ford
vy. Noll, 2 Dowl. N. 8.617; and see
Henwood vy. Oliver, 1 Q. B. 409;
Bowen v. Owen, 11 Q. B. 130.

(b) Finch v. Miller, 5 C. B. 428.

(c) Cole v. Blake, Peake, 179;
Laing v. Meader, 1 C. & P. 257.

(d) Richardson v. Jackson, 8 M.&
W. 298.

(e) 43 Geo. III. c. 126, 8.5; 16
&17 Vict. c. 59, ss. 2, 3.

(f) Scott v. Uxbridge § Rickmans-
worth Ry. Co., L. R.1 C. P. 596; 35
L. J.C. P. 2938.

(g) Douglas v. Patrick, 3 T. R.
683 ; and see post, Chap. IV, Sect.
VII, “ Payment.”

(kh) Ready. Goldring, 2 M.&8. 86.

(i) Goodland v. Blewith, 1 Camp.
477; Kirtonv. Braithwaite, 1M.&W.
810; Moffat v. Parsons, 5 Taunt. 307 ;
Anon. | Esp. 349; and see post, Chap.
IV, Sect. VII, ‘‘ Payment.”
Breach of
contract.

Acts equi-
valent to
breach of
contract.

Breach by
promiser
disabling
himself
from per-
formance.

460 CHAP. 1V. THE DISCHARGE OF CONTRACTS.

Cuap. IV. Sect. V. Breaco or Conrracr.

Breach of Contract ...........666 460 Promiser Refusing Perform-
Acts equivalent to Breach :— BUCO vintieanmonaeasmaannmnaners 462

Promiser Disabling himself Discharge of Right of Action
from performance ......... 460 for Breach ........c6cceeeee 465

A sruacH of contract converts the right to performance
created by the contract into a right of action for damages
for the non-performance ; so far as it extends, it renders the
strict performance of the contract impossible, and puts an
end to the contract, except for the purpose of maintaining
the right of action for the breach. In some cases where the
contract may be performed in substance notwithstanding
the breach, Courts of Equity will grant a specific perform-
ance of the contract upon equitable terms ; but, in general,
where a court of equity refuses to decree specific perform-
ance, the ouly right remaining under a contract after a breach
is the right of action for damages.

A breach of contract consists in any deviation from the
exact course of performance stipulated for in the terms of
the contract (2). There are also some acts which, though
strictly speaking not deviations from the performance of the
contract, yet, being the same in effect, are held to be equi-
valent tu a breach ; as, where, before the time of perform-
ance arrives, the promiser disables himself from performance,
or absolutely refuses performance of his promise.

An act of the promiser which disables him from the per-
formance of his promise before the time of performance
arrives may be equivalent to a breach, and render him hable
to an immediate action. In Muii’s case it was resolved,
that if a man seised of lands in fee covenants to enfeoff J. 8.
of them upon request, and afterwards he makes a feoffment
in fee of the same lands to another, J. S. shall have an action
of covenant without request ()). A person entitled to lands
in reversion, expectant upon a lease, agreed that he would
grant a lease for a certain term as soon as they should come

(a) See ‘Performance of Contract,” (b) 5 Co. Rep. 21 a@; and sce ante,
ante, p, 435. p. 351,
SECT. V. BREACH OF CONTRACT. 461

into possession, and before that time he granted a lease of
the lands to another for the same term; it was held that,
having put it out of his power to perform his agreement, he
was liable to an action for the breach, although the first lease
had not expired (a). So, if a person contracts to sell speci-
fic goods and deliver them upon request, and before request
made he sells and delivers them to another, he is at once
liable to an action at the suit of the first buyer, and no re-
quest to deliver is necessary (0).

If a man promises a woman to marry her and marries
another, he is at once liable to an action for breach of pro-
mise of marriage; and by the act which disables him from
the performance of his promise he dispenses with the re-
quest to perform it, or the lapse of an appointed or reason-
able time for its performance, or any other matters which
may have been stipulated for as conditions precedent to his
liability ; and it is immaterial whether the person whom he
has married rewains still alive, the contract having been
once broken (c). A woman before her marriage covenanted
with the plaintiff to leave certain matters in difference be-
tween them to arbitration and to abide the award, and be-
fore the award was made married, and thereby incapacitated
the arbitrator from making any award to bind her; it was
held that she thereby broke her covenant (d).

The defendant covenanted that he would at the request of
the plaintiff avow and confirm all actions which the plaintiff
should bring in respect of a bond of which the defendant
was obligee without releasing the same; the defendant having
released the bond, it was held that he had disabled himself
from avowing an action on the bond, and was lable for a
breach of his covenant, without any request of perform-
ance (e). An insurance company in consideration of a sum
of money paid by the plaintiff to the company, appointed a
person as agent to the company, and covenanted with the
plaintiff, that in case the company should at any time dis-

(a) Ford v. Tiley, 6 B. & C. 325; Caines v. Smith, 15 M. & W. 189.

see Lovelock v. Franklyn, 8 Q. B. 371. (d@) Charnley v. Winstanley, 5
(b) Bowdell y. Parsons, 10 East, East, 266.
859. (e) Amory v. Brodrick, 5B. & Ald.

(c) Short v. Stone, 8 Q. B. 358; 712.
462 CHAP. IV. THE DISCHARGE OF CONTRACTS.

place that person from his appointment as agent, they would
repay to the plaintiff the money so paid by him; the com-
pany having afterwards transferred their business to another
company, it was held that they had thereby displaced the
agent by rendering it impossible to continue him in their
employment, and were bound to repay the sum of money to
the plaintiff (a).

Breach by If before the time appointed for performing the contract
paflsing to has arrived the promiser wholly refuses to perform it, the
Berens promisee may be entitled to treat such refusal as an imme-
diate breach of the contract, and to commence an action for
damages in respect of it (b). The plaintiff agreed to enter
the services of the defendant, and the defendant agreed to
employ him, as a courier from an appointed future day for
three months certain, and before the appointed day the de-
fendant wholly refused to employ the plaintiff according to
the agreement; it was held that upon the refusal by the de-
fendant to employ, the plaintiff was entitled to bring an ac-
tion immediately, and was not bound to wait until after the
day agreed upon for the commencement of the employment
had arrived (c). A contract was entered into between the
plaintiffs and an agent of the defendant for the carriage of
the plaintiffs’ goods in a vessel of the defendant, and before
the day appointed for the shipment of the goods the defend-
ant wrote to inform the plaintiffs that he did not hold him-
self responsible, as the agent had no authority to act in his
name ; the plaintiffs wrote im answer that they should make
other arrangements and hold the defendant responsible for
the consequence, and they proceeded to negotiate a new con-
tract with another person for the carriage of their goods ;
on the day appoimted by the first contract for the shipment,
and before the new contract was completed, the defendant
informed the plaintiffs that he was ready to take the goods ;
it was held that upon the original denial of the contract
by the defendant the plaintiffs were entitled to treat the

(a) Stirling v. Maitland, 5 B.& 8. Co. v. Xenos, 11 C. B. N. 8. 152; 18
840; 34 L. J. Q. B.1. ib. 825 531 L. J.C. P. 84, 284.

(6) Hochster v. Delatour, 2B. &B. (c) Hochster v. Delatour, 2 E. & B.
678; Danube and Black Sca Railway €78; 22 L.J.Q. B. 455.
SECT. V. BREACH OF CONTRACT. 463

contract as broken by acting upon that denial and making
new arrangements for the carriage of their goods, and they
were entitled to sue the defendant for not receiving the goods
according to the contract (a).

If before the time appointed for performing the contract Refusal
has arrived the promiser refuses to perform it, but the pro- a -
misee declines to treat such refusal as a breach, and con- breach.
tinues to insist upon the performance of the contract, he is
precluded from afterwards treating such refusal as a breach.
By acharterparty it was agreed that the plaintiff’s ship should
proceed to Odessa and there load a cargo from the defendant
within a certain number of days; while the days for loading
were running the defendant told the master of the ship that
he should be unable to provide a cargo and advised him to
go away, but the master declined to do so and continued to
insist upon having a cargo in fulfilment of the charterparty ;
afterwards and before the days allowed for loading had ex-
pired war was declared between England and Russia, which
rendered it illegal for the defendant to procure a cargo as
agreed; it was held that the-master not having treated the
refusal of the defendant as a breach of the contract before
the contract was discharged by the declaration of war, the
defendant was not liable to an action (6).

The defendant having contracted to sell a certain quantity
of goods and deliver them at an appointed time, before that
time arrived announced his refusal to proceed with the con-
tract; it was held that the buyer was not bound to accept
such refusal, but was entitled to insist upon the due perform-
ance of the contract, and, the price of the goods having
risen, he was entitled to damages measured by the price at,
the time appointed for delivery and not by the price at the
time of the refusal of the defendant (c). So, where the de-
fendant contracted for the purchase of certain goods to be de-
livered at a certain place and before the. time arrived for the
delivery of the goods, the market having fallen, gave the
seller notice that he would not accept the goods if they were

(a) Danube and Black Sea Ry. Co. kins, 6 B. & B. 958, 961; 25 L. J. Q.
y. Xenos,11C. B. N.S. 152; 137. B. 49,55; 267d. 3, 5; ante, p. 397.
825; 831 L. J.C. P. 84, 284. (c) Leigh v. Paterson, 8 Taunt.

(b) Avery v. Bowden; Reid y. Hos- 540.
Refusal to
perform
may be re-
tracted be-
fore accept-
ance,

Refusal to
perform
waives
conditions
precedent.

A464 CHAP. IV. THE DISCHARGE OF CONTRACTS.

delivered, it was held that the notice of refusal amounted to
nothing unless acted upon by the seller, and that the defend-
ant was liable to damages measured by the market price of
the goods at the time for delivery, and not at the time of his
giving notice of refusal to accept them (a).

A refusal to perform the contract made by a party at any
time before the performance on his part is due, if not treated
by the other party as a breach of the contract, is, in effect,
merely an expression of an intention to break the contract,
and may be retracted (4) ; until retracted, it is evidence of a
continual refusal down to and inclusive of the time appointed
for performance (c); after such refusal has been treated as a
breach of the contract by the promisee, it is no longer com-
petent for the promiser to withdraw his refusal and offer to
perform the contract ; although the time appointed for ac-
tual performance may not have arrived (d).

The promisee has not a right, before the time for perform-
ance has arrived, to demand and have a distinct answer
whether the promiser will perform the contract or not (¢).

A refusal to perform the contract by one party, so long as
it remains unretracted, discharges the other party from the
performance of all acts which he would otherwise be bound
by the contract to perform, and so may operate as an excuse
for the non-performance of conditions precedent to the ha-
bility of the party refusing (f). The plaintiff contracted with
the defendant for the sale of a cargo of tea to be delivered.
on arrival from the ship to the defendant at a certain price
payable after delivery ; before the arrival of the cargo the
defendant repudiated the contract and refused to perform it,
and it was held that this refusal, not having been retracted,
discharged the plaintiff from a delivery of the tea upon its
arrival, and rendered the defendant liable for a breach of

(a) Phillpotts vy. Evans,5 M. & W. (d) Danube and Black Sea Ry.
A475. Co, % Lewes, 11 C. B. N.S. 162: 13.

(b) Phillpottsv. Evans,5M.& W. ib. 825; 31 L. J. ©. P. 84, 284;
475; Ripley y. M‘Clure, 4 Ex. 345, — Hochster v. Delatour, 2 E. & B. 678;
359; Avery v. Bowden, Reid v. Hos- 22 L. J. Q. B. 455.
kins, 6 E. & B. 958, 961; 25 L. J. Q. (e) Ripley v. M‘Clure, 4. Ex. 345.
B. 49, 55; 26 2b. 3, 5. (f) See ante, p. 351; Ripley v.

(c) Ripley v. M‘Clure, 4 Ex. 345,  M‘Clure, supra; Danube and Black
359. Sea Ry. Co. v. Xenus, supra.
SECT. VI. ACCORD AND SATISFACTION. 465

contract in not accepting the tea, without such delivery («).
Upon a contract for the manufacture and delivery of goods,
the buyer, after accepting and paying for a portion of the
goods, gave notice to the seller not to make any more, as
he would not accept or pay for them; it was held that the
seller might sue for a breach of the contract in refusing to
accept the rest of the goods contracted for, without continu-
ing to manufacture and tender them (b).

The right of action for damages arising out of a breach Discharge
of contract, in common with rights of action arising from %uebtot
wrongs of other kinds, may be discharged by proceeding: to breach.
judgment in the ordinary course of procedure appointed
in the courts of law for that purpose; and the judgment
may be satisfied and discharged by execution. The law of
Practice and Procedure, regulating the course of actions, is
not’within the scope of the present work, and the reader is
referred to works specially devoted to that subject; but
besides the ordinary mode of proceeding to judgment and
execution, there are other modes of discharging rights of
action, which, so far as they relate peculiarly to rights of
action arising out of contracts, may be considered to be
within the scope of the present work, and are, therefore,
treated of in the following sections.

Cuap. IV. Sect. VI. Accorp AND SATISFACTION.

Accord and Satisfaction......... 465 | Accord without Satisfaction
of Specialty Debts ......... 466 inoperative ...........0.:00 468

What may be given and ac- By and with whom it may be
cepted in Satisfaction...... 467° MAS aye “Hever swiwinsewennes & 470

A rigut of action for a breach of contract cannot be dis- Accord and
charged by any payment or performance, or tender of pay- ae
ment or performance by the promiser without the consent

and acceptance of the promisee; for the promisee, after

breach, becomes entitled to damages, to be assessed by pro-

cess of law, and is not bound to accept any tender or offer

(a) Ripley v. M‘Clure, supra. Danube and Black Sea Ry. Co. v.
(8) Cort v.Ambergate Ry.Co.,17Q. Xenos, supra; 11 C.B. N.S. 152;
B. 127; 20 L.J.Q. B. 460; andsee 13 2b. 825; 31 L.J.C. 84, 284.
H
Accord and
satisfaction
of specialty

debts.

466 CHAP. IV. THE DISCHARGE OF CONTRACTS.

made by the promiser in satisfaction of his claim for dama-
ges (a). He may, however, agree to do so; and an agreement
to accept something in satisfaction, accompanied by the de-
livery or performance of what is so agreed upon, satisfies
and discharges his right of action. Such an arrangement is
called in technical language an accord and satisfaction, and,
when complete, forms a good defence to an action.

By the accord the parties agree upon a sum of money or
other matter to be given and accepted as compensation for
the breach, instead of the damages recoverable by process
of law; and by the execution of the accord, that is, by the
actual delivery and acceptance of the matter agreed upon,
the right of action is satisfied and discharged.

Accord and satisfaction after breach is, in general, a good
defence to an action for a breach of any contract, whether
made by parol or by specialty (b). But by the common law
a debt acknowledged as due under seal, as a single bond, or
covenant to pay a present money debt, or a bond after for-
feiture, could not be discharged by accord and satisfaction,
and could be avoided only by matter of as high a nature, as
by an acquittance under seal.

According to the resolution reported in Blake’s case,
“there is a difference when a duty accrues by the deed in
certainty tempore confectionis scripti, as by covenant, bill, or
bond, to pay a sum of money, there this certain duty takes
its essence and operation originally and solely by the writ-
ing; and, therefore, it ought to be avoided by a matter of
as high a nature, although the duty be merely in the per-
sonalty ; but when no certain duty accrues by the deed, but
a wrong or default subsequent, together with the deed, gives
an action to recover damages which are only in the per-
sonalty, for such wrong or default accord with satisfaction
is a good plea (c).”” In accordance with this resolution of
the Court, in the case at bar, which was an action for a
breach of covenant in not repairing a house, to which the

(a) See ante, p. 4; Hardman v. (c) Blake’s case, 6 Co. 43 3;
Bellhouse, 9 M. & W. 596; Steady. Nichol’s case, 5 Co. 48 a; Massey
Poyer, 1 C. B. 782. v. Johnson, 1 Ex. 241, 253; see as to

(6) Blake’s case, 6 Co. Rep. 43 3. payment of bonds, etc., post, p. 473.
SECT. VI. ACCORD AND SATISFACTION. 467

defendant pleaded an accord and satisfaction, it was held
that as the covenant did not give the plaintiff at the time of
the making of it any cause of action, but the wrong or de-
fault after in not repairing the house together with the deed
gave an action to recover damages for default of reparations,
the defendant’s plea was good (a). But to an action on a
bond without any condition, a plea of accord and satisfac-
tion, not by deed, was held bad (b). Upon the same prin-
ciple in Nichol’s case (¢), in an action of debt on a single bill,
payment, without an acquittance under seal, was held to be
no plea, because the single bill remained in force.

By agreement of the parties anything may be given or What may
done and accepted in satisfaction of a right of action: thus, 2? give"
accord and satisfaction may be made by delivery and accept- cepted in

ance of goods ; by work or services performed; or by pay- ae
ment of an agreed sum of money. Payment of a debt or
liquidated money demand, accepted after it is due, operates

in satisfaction of the right of action for such debt or de-
mand, and not in performance of the contract (d).

A mere agreement to do certain things, and not the actual New con-
performance of them, may be accepted in satisfaction of Bh ts acougtad
right of action; so that if the agreement accepted in satis- in satistac-
faction is not performed, the only remedy is by an action for
the breach of it, and there remains no recourse to the original
right of action, which is altogether discharged (ce). The new
agreement must create a binding contract and give a right
of action in case of its non-performance, otherwise it would
form no satisfaction of the original right of action, without
actual performance (/).

Thus, a bill of exchange or promissory note may be given
and accepted in absolute satisfaction and discharge of a debt,
and not merely as a conditional payment defeasible by dis-
honour of the instrument (9).

(a) Blake's case, supra.

(b) Prestonv. Christmas, 2 Wils.86.

(ec) 5 Co. 43 a.

(d) See “ Payment,” post, p. 471.

(e) Evans v. Powis, 1 Ex. 601;
Hall vy. Flockton, 14 Q. B. 380; 16
Q. B. 1039; 19 L. J. Q. B.1; 20
ib, 208.

(f) Case v. Barber, T. Raym. 450;
Henderson v. Stobart, 5 Ex. 99; and
see Lynn v. Bruce, 2 H. Bl. 317.

(g) Sard vy. Rhodes, 1 M. & W.
153; Lewis v. Lyster, 2 C. M. &R.
704; Goldshede v. Cottrell, 2 M. &
W. 20; and see “ Payment,” post, p.

4.77.
2H 2
468 CHAP. IV. THE DISCHARGE OF CONTRACTS.

Where a composition agreement is made between a debtor
and his creditors whereby the debtor binds himself to pay a
proportion of the debt of each creditor, and the creditors
accept such composition agreement in satisfaction of their
debts, those debts are thereby discharged; and the new
agreement alone, without payment, affords a good answer
to an action by a creditor upon the original liability (a).

The liability of a third party may be taken in satisfaction
of the debt of the original debtor, under a valid agreement
between all the parties to that effect (b). So,the separate habi-
lity of one of several joint debtors may be accepted in satis-
faction and discharge of the joint liability of all (c). So,
where the plaintiff is himself indebted to a third party, the
defendant, by agreement between all parties to that effect,
may take upon himself the debt of the plaintiff in satisfac-
tion of his own debt to the plaintiff (d).

Adequacy In general, the intrinsic value of the matter or thing

Fa ong given or done in satisfaction of the right of action is imma-
terial in law; it is settled by agreement of the parties as the
equivalent or consideration for the discharge of the right of
action (e). But in the case of a payment made in satisfaction
of a money debt, the acceptance of a smaller sum is no satis-
faction of a debt of larger amount, without some additional
consideration for giving up the residue (/).

eso The accord alone, being merely the agreement of the

means parties as to the matter to be given or done, and accepted, in
is inopera- satisfaction of the right of action, while it remains unexe-

ne cuted, does not affect the right of action (g). Notwithstanding
an accord has been come to respecting a proposed mode of

(a) Good v. Cheesman, 2 B. & Ad. (d) Cochrane v. Greene, 9 C. B.
328; Evans vy. Powis, 1 Ex. 601; N.S. 448; 30 L. J.C. P. 97; and seo
Boyd v. Hind, 1 H. & N. 938, 947; post, Chap. VI, “ Assignment of Con-
26 L. J. Ex. 164, 166. tracts.”

(5) Case v. Barber, T. Raym. 450 ; (e) See ante, p. 311; Pinnel’s case,
Henderson vy. Stobart, 5 Ex. 99; and 5 Co. Rep. 117 a; Curlewis vy. Clark,
see Cuwon v. Chadley, 3 B. & C.591; 3 Ex. 375; Cumber v. Wane, 1 Strange,
Hart vy. Alexander, 2 M. & W. 484; 426; 1Smith’s L. CO. 5th ed. 288; Lyth
Kemp v. Watt, 15 M. & W. 672. v. Ault, 7 Ex. 669; 21 L. J. Ex. 217.

(ec) Thompson v. Percival, 5 B. & (f) 2b.; Down v. Hatcher, 10 A.
Ad. 925; Lyth v. Ault, 7 Ex. 669; & HW. 121; and see post, p. 474.

21 L. J. Ex. 217; overruling Lodge v. (g) Allen v. Harris, 1 L, Raym.
Dicas, 3 B. & Ald. 611. 122; Jones v. David, 5 T. R. 141.
SECT. VI. ACCORD AND SATISFACTION, 469

satisfaction, and the defendant may be willing and offer to
execute it, the plaintiff may, at any time before it has been
executed, commence an action (a). Nor is a mere accord
unexecnted binding on the debtor go as to give a right of
action to the creditor for its non-performance (b). But an
agreement made between the plaintiff and the defendant,
that an action, previouly brought by the plaintiff against the
defendant, should be settled, and all proceedings therein
stayed, and that the defendant should pay the plaintiff a
sum of money, was held to be a mutually binding agree-
ment upon which an action might be brought in case of a
breach on either side ; although it might not, until per-
formed by the defendant, constitute a defence to the pre-
vious action (c).

An agreement between a creditor and a debtor, that the
creditor should take payment in goods to be delivered
by the debtor, was held to be no answer to an action for
the debt, unless the goods had been actually delivered and
accepted in satisfaction of the debt (d). So, a plea that it
was agreed that the plaintiff should take out his debt in
beer, and that the defendant was always ready and willing
to carry out the agreement on his part, was held a bad
plea (e). Soa plea, to an action for a breach of contract in
not delivering timber, that the plaintiff agreed to accept
other timber instead of that contracted for, and that the
defendant tendered such other timber, which the plaintiff
refused to accept, was held to be a bad plea, as showing an
accord without satisfaction (f). In an action to recover a
debt, the plea stated an agreement between the plaintiff
and the defendant that in consideration that the defendant
would secure the debt by executing a mortgage when called
upon to do so, payable by annual instalments, the plaintiff
promised that no proceedings should be taken in respect of
the debt, unless default were made in payment of the instal-

(a) Bayley v. Homan, 3 Bing. N.C. (d) Wray v. Milestone, 5 M. & W.
915, 920. 21; Collingbourne v. Mantell, 5M. &

(6) Lynn v. Bruce, 2 H. Bl 317; 9 W. 289.
Reeves v. Hearne,1 M. & W. 3238; (e) Collingbourne v. Mantell, 5 M.
see Reniger v. Fogossa, Plowd. 5, 6. & W. 289. :

(ce) Crowther v. Farrer, 15 Q. B. (f) Gabriel v. Dresser, 15 C. B.
677. 622; 24L, J.C. P. 81.
470 CHAP. 1V, THE DISCHARGE OF CONTRACTS.

ments, and that the defendant had always been ready to
execute the mortgage; it was held a bad plea as being
merely an accord without satisfaction (a). So, a plea stat-
ing an agreement to the effect that the defendant would
give the plaintiff authority to collect debts owing to the de-
fendant, and satisfy his cause of action from the proceeds,
and that the plaintiff might have collected the debts, but
neglected to do so, was held bad as showing an accord with-
out satisfaction (6).

Where an accord had been come to as to the mode of
satisfying a debt, but remained unexecuted, it was held that
as the right of action for the debt had not been affected by
the accord, the period of limitation continued to run against
it from the time it originally accrued (c).

By and Accord and satisfaction made with, and accepted by, one
with whom of several joint creditors discharges the debtor as against
ae a all (d). Accord and satisfaction made by one of several
parties jointly lable, and accepted by the creditor, dis-
charges all the parties (e).

Accord and satisfaction made by a stranger on account
of the debt may be adopted by the debtor in discharge of
his liability (/).

made,

(a) Allies v. Probyn, 2 C. M.& R. (e) Nicholson v. Revill, 4 A. & E.
408. 675; and see Hillman yv. Uncles,

(b) Gifford v. Whittaker, 6 Q. B. Skinner, 391; Thurman v. Wild, 11
249; and see Baillie vy. Moore, 8 A. & HE. 452, 460; per Eyre, CJ.,
Q. B. 489. Cheetham v. Ward, 1B. & P. 630, 633;

(c) Reeves v. Hearne,1 M.& W. and see by and to whom payment may
323; see post, p. 526. be made, post, p. 486.

(d) Wallace vy. Kelsall, 7 M. & W. (f) See Jones v. Broadhurst, 9 C. B.

264; Smith v. Lovell, 10 C. B. 6, 23;
Alexander vy. Dowie, i H. & N. 152;
25 L. J. Ex. 281.

173, 193; Belshaw v. Bush, 11 C. B.
191, 207; Thurman vy. Wild, 11 A.&
E. 452; post, p. 487.
SECT. VII. PAYMENT. 471

Cuap. IV. Secr. VII. Payment.

Payment in Performance of Goods taken in Payment.,. 481
Contract: x. assayeraciqass. &4 471 Payment according to di-

in Satisfaction of Breach ... 471 rections of Creditor...... 482

of Debts by Bond and Cove- Receipt by Creditor ......... 483

DAME <2 casnnteGuniesngarnes 473 Receipt under Seal ........., 485
Transactions equivalent to To and by whom Payment

Payment :— may be made ,,,............ 486
Payment of Smaller Sum Appropriation of Payments :—
than the Debt ............ 474, Right of Debtor to Appro-

Setting off Cross Items in PTIAGC vo: szypdiectonstbonnatales 491
AccoUntcss sssavverszensears 475 Right of Creditor to Appro-

Bill or Note taken for the PMSUC: ccscrommacacnermensans 494

Debt ie: decmenecesonconnag 476 Appropriation by Law ...... 497

A conrract to pay money is discharged by paying the Paymentin
money at the time and in the manner appointed by the Po.
contract. If the creditor refuses to accept the payment so tact.
offered, the debtor may discharge himself from lability by

a tender of payment. The payment or tender of payment

is then made in performance of the contract, and no breach

of contract occurs (a).

If the debtor does not pay or tender the money at the Payment
time and in the manner appointed, he commits a breach of = S*tis*
the contract. The right of the creditor under the contract breach.
is thereby converted into a right of action to recover da-
mages for the breach. The debtor can no longer, strictly
speaking, discharge his lability by merely tendering the
amount of the debt to his creditor; for the creditor is no
longer bound to accept the tender, but may insist on his
right of action for damages, and his consent to accept pay-
ment in satisfaction of his claim is necessary in order to dis-
charge the liability of the debtor. The payment, if accepted,
is then made not in performance of the contract, but in sa-
tisfaction of the right of action arising from the breach
of it (b).

The right of action for a mere money debt has this pecu-
liarity, that the amount of damages recoverable is liquidated
or certain. The measure of the damages is the amount of

(a) See ante, p. 436. 234; per Williams, J., Chambers v.
(4) See ante, p. 467; per Parke, B., Miller, 13 C. B. N. 8. 125, 134 32 L.
Kington y. Kington, 11M. & W. 233, J.C. P. 30, 33.
A72 CHAP. IV. THE DISCHARGE OF CONTRACTS.

the debt together with the amount of interest, if any in-
terest is payable; but the debtor, by wrongfully detain-
ing a mere money debt beyond the time when it is due, does
not render himself liable for any pecuniary consequences
which may happen to the creditor by reason of his special
circumstances, which were not referred to or contemplated
in the original contract (a). Hence the damages for the mere
detention of the debt are, in general, what are called “no-
minal damages,’ which are described as meaning in fact
“a sum of money that may be spoken of, but that has no
existence in point of quantity.” The existence of nominal
damages in point of law is, however, important, because it
entitles a creditor, in certain cases, to stand upon his strict
right to bring an action, and to recover therein a verdict and
his costs (4).

If the creditor, being entitled to claim his debt to-
gether with nominal damages for its detention, before ac-
tion brought, accepts the amount of his debt, he cannot
afterwards commence an action for the nominal damages
alone (¢). But where payment of the debt only has been
made after an action has been commenced by the creditor
to recover it, the latter is entitled to maintain his action for
nominal damages and the costs of his suit; the payment
made after action being taken into account as against the
debt only, and not as necessarily covering the damages for
the detention of the debt (d). Where payment is made and
accepted, after action brought, in satisfaction of debt, da-
mages, and costs, the creditor’s claim is completely satisfied
and discharged, and there is a complete defence to the
action arising after the commencement of the suit (e).

Money demands differ im this respect from claims for the
detention of goods which a person is bound to deliver; for

(a) See post, Chap. V. “ Damages.”

(2) See per Maule, J., Beaumont
v. Greathead, 2 C. B. 494, 499;
Wilde vy. Clarkson, 6 T. R. 803;
Joule v. Taylor, 7 Vix. 58.

(c) Beaumont v. Greathead, 2 C.

J. Ex.71; Goodwin v. Cremer, 18 Q.
B. 757 ; 22 L. J. Q. B. 30; Kemp v.
Balls, 10 Ex. 607; Lowe v. Steele,
15 M. & W. 380; Randall vy. Moon,
12 C.B. 261.

B. 494; and see Dixon y. Parkes,
1 Esp. 110.

(d) Nosotti v. Page, 10C. B. 643;
Cook v. Hopewell, 11 Ex. 555; 25 L.

(e) Thame v. Boast, 12 Q. B. 808;
Gell v. Burgess, 7 C. B. 16; and see
Henry v. Earl, 8 M. & W. 228; and
Cook v. Hopewell, 11 Ex. 555; 25 L.
J. Ex. 71.
SECT. VII. PAYMENT. 473

the wrongful detention of goods entitles the claimant to sub-
stantial damages ; a subsequent delivery of the goods does
not affect the claim for the detention, and is considered
only in mitigation of the damages (qa).

By the common law a debt acknowledged as due under pyymentin

seal, as a single bond, or a bond with a condition after for- oe
ebts by

feiture, or a covenant to pay a present money debt, could bond and
not be discharged by mere payment in satisfaction ; such °°"
debts could be discharged only by matter of as igh a na-
ture, as by an acquittance under seal (0).

But by the statute 4 & 5 Anne, c. 16, s. 12, it was enacted
that “Where any action of debt shall be brought upon any
single bill, or where any action of debt, or scire facias, shall
be brought upon any judgment, if the defendant hath paid
the money due upon such bill or judgment, such payment
shall and may be pleaded in bar of such action or suit; and
where an action of debt is brought upon any bond which
hath a condition or defeasance to make void the same upon
payment of a lesser sum at a day or place certain, if the
obligor, his heirs, executors or administrators have, before
the action brought, paid to the obligee, his executors or
administrators, the principal and interest due by the defea-
sance or condition of such bond, though such payment was
not made strictly according to the condition or defeasance,
yet it shall and may nevertheless be pleaded in bar of such
action, and shall be as effectual a bar thereof, as if the
money had been paid at the day and place according to the
condition or defeasance, and had been so pleaded.” This en-
actment does not enable the obligee to discharge his lability
by tender of payment post diem, if refused by the obligor (c).

And by s. 18 of the same statute it is enacted, ‘‘ that if. at
any time pending an action upon any such bond with a
penalty, the defendant shall bring into the Court where the
action shall be depending all the principal money and in-
terest due on such bond, and also all such costs as have been

e See Griffiths v. Owen, 13M. & Blake’s case, 6 Co. Rep. 486; and
see Massey v. Johnson, 1 Ex. 241, 253.
i * Nichol’s case, 5 Co. Rep. 43 a; (ec) See ante, p. 454.
Transac-
tions con-
stituting

payment.

Payment of
smaller
sum than
the debt.

474, CHAP. IV. THE DISCHARGE OF CONTRACTS.

expended in any suit or suits in law or equity upon such
bond, the said money so brought in shall be deemed and
taken to be in full satisfaction and discharge of the said
bond, and the Court shall and may give judgment to dis-
charge every such defendant of and from the same accord-
ingly.” This enactment is practically superseded by the
Common Law Procedure Act, 1860, 23 & 24 Vict. c. 126,
s. 25, which enacts that “‘ in any action brought upon a bond
which has a condition or defeasance to make void the same
upon payment of a lesser sum at a day or place certain,
with a penalty, it shall be lawful for the defendant, by leave
of the Court, or a judge, and upon such terms as they or he
shall think fit, to pay into Court a sum of money to an-
swer the claim of the plaintiff in respect of such bond ; and
such payment into Court shall be made and pleaded in like
manner and according to the provisions of the “ Common
Law Procedure Act, 1852,” and the like proceedings may be
had and taken thereupon as to costs and otherwise.”

Certain transactions may by agreement of the parties be
made equivalent to payment, and are so regarded in law, of
which the following are examples :—

Payment of a smaller sum in satisfaction of a greater
liquidated debt, only operates as a discharge pro tanto, and
cannot in law discharge the whole debt without some valid
consideration for abandoning the residue (a). But pay-
ment of a smaller sum may amount to a discharge of a
larger debt, where it is made under a valid agreement to
that effect; as, where it is agreed to be paid at an earlier
day (b) ; where it is agreed to be paid by a third party (¢) ;
or where it is paid as a composition for the debt under an
arrangement between the debtor and his creditors (d).

(a) Pinnel’s case, 5 Co.Rep.117a; Vins, 20 L. J. Q. B. 259; 2L.M.&
Cumber vy. Wane, 1 Strange, 426, P. 99.
1 Smith’s L. C. 5th ed. 288 ; Fitch v. (6) Pinnel’s case, 5 Co. Rep. 117 4;
Sutton, 5 Hast, 230; Sibree v. Tripp,  Sibree v. Tripp, 15 M. & W. 28, 31,
15 M. & W. 23, 30, 38, 87; Wright 34; Fitch v. Sutton, 5 East, 230, 233.
v. deres, 6 A. & E. 726; Down vy. (c) See Lewis v. Jones, 4B. & C.
Hatcher, 10 A. & E.121; Mitchelly. 506, 513; Welly v. Drake, 1 C. &
Cragg, 10M. & W. 367, 871; see re- PP. 557.
marks of Erle, J., in Durner vy. Col- (d) Steinman vy. Magnus, 11 East,
SECT. VII. PAYMENT. A475

Payment of a smaller sum in satisfaction of a larger
amount claimed for an unliquidated demand may operate as a
valid discharge (a) ; so, payment of a smaller sum, under an
agreement to abandon a defence to an action and pay costs,
may be pleaded in satisfaction of a larger demand (b). A
negotiable security for a smaller amount given and accepted
in satisfaction of a larger debt will operate effectually in dis-
charge of it (c).

Where an account is stated between two parties respect- Setting off
ing items due on both sides of the account, and it is agreed 218s items
between them that the items admitted on the one side shall
be set off against the items admitted on the other, so as to
leave the balance only due and payable, the transaction is
equivalent to payment of the debts so set off (d). “ The way
in which an agreement to set one debt against another of
equal amount, and discharge both, proves a plea of payment
is this: if the parties met, and one of them actually paid
the other in coin, and the other handed back the same iden-
tical coin in payment of the gross debt, both would be paid.
When the parties agree to consider both debts discharged
without actual payment it has the same effect, because in
contemplation of law a pecuniary transaction is supposed to
have taken place by which each debt was then paid”’(e). A
written memorandum of such a transaction, constituting a
payment by a set-off of cross debts, is a receipt and requires
a receipt stamp (/).

A payment thus effected has the full effect of payment in
taking a debt out of the operation of the Statute of Limita-
tions (9); but the mere existence of items on both sides in

390; Evans v. Powis, 1 Ex. 601,
606.

(a) Wilkinson v. Byers, 1 A. & WH.
106 ; Sibree v. Tripp, 15M. & W. 23,
36; and see ante, p. 319.

(b) Cooper v. Parker, 15 C. B.

822; 23 L. J. C. P. 41; and see -

Crowther v. Farrer, 15 Q. B. 677;
ante, p. 469.

(c) Sibreev. Tripp, 15 M. & W. 23;
see post, p. 478.

(d) Sutton v. Page, 3 C. B. 204;
Callander y. Howard, 10 C. B. 290;
see Clark y. Alexander, 8 Scott, N. R.
147, 163.

(e) PerLord Campbell, C.J., Living-
stone v. Whiting, 15 Q. B. 722, 723;
see Sturdy v. Arnaud, 3'T. R. 599.

(f) Livingstone v. Whiting, supra.

(g) Scholey v. Walton, 12 M. & W.
510; Worthington v. Grimsditch, 7
Q. B. 479; and see post, p. 538,
Bill or note
taken on
account of
the debt.

476 CHAP. IV. THE DISCHARGE OF CONTRACTS.

an open account, there being no agreement to set them off
against one another in payment, is ineffective in discharging
the items, or in preventing the operation of the Statute of
Limitation (a). Where some of the earlier items admitted
on one side are barred by the Statute of Limitation, they
are effectually paid by the items allowed against them on the
other side, and the claim for the balance is not affected by
the statute (b).

As an account stated respecting a debt is not conclusive
as to the amount, a payment of the amount stated in ac-
count is no answer to a claim for a larger sum in respect of
the same debt, but operates as payment only to the amount
of the sum paid (c).

A negotiable security, as a bill of exchange or promissory
note, may be given and taken for and on account of a simple
contract debt and will operate as a conditional payment, that
is, a payment if the security is paid when due (d) ; such pay-
ment, however, is defeasible by the dishonour of the security,
so that if the security is not paid at maturity there is no dis-
charge, and the original debt remains in force (e). So, the
giving and taking of a negotiable check on a banker for and
on account of a debt is equivalent to payment, until it has
been presented for payment and refused (f). If the security
is duly paid the transaction is equivalent to payment of the
original debt, and should be pleaded as a discharge by
payment (g). While the negotiable security given for and
on account of the debt is running, and until it has arrived
at maturity, it suspends the right of action, and affords a

(a) Cottam v. Partridge, 4M. & G.
271.

(e) Puckford v. Maxwell, 6 T. R.
52; Owenson v. Morse, 7 T. R. 64;

(0) Ashby v. James,11 M. & W.
542; Clark v. Alexander, 8 Scott, N.

R. 147, 165.

(c) See ante, p. 71; Smith v. Page,
15 M. & W. 683; Perry v. Attwood,
6 E.& B. 691; 25L. J. Q. B. 408.

(d) Kearslake v. Morgan, 5 T.R.
518; Belshaw v. Bush, 11 C. B.191,
202, 204; and see James vy. Williams,
13 M. & W. 828; Plimley v. Westley,
2 Bing. N. C. 249.

Valpy v. Oakeley, 16 Q. B. 941;
Griffiths v. Perry, 1 E. & E. 680 ; 28
L. J. Q. B. 204.

(f) Per Patteson, J., Pearce v.
Davis, 1 M. & Rob. 365; and see
Hough v. May, 4 A. & BE. 954; Caine
v. Coulton, 1 H. & C. 764; 32 L. J.
Ex. 97.

(gy) Fearn v. Cochrane, 40. B. 274;
Thorne v. Smith, 10 C. B. 659; see
Smart vy. Nokes, 6M. & G. 911.
SECT. VII. PAYMENT. 477

good defence to an action to recover the debt, which must
be pleaded specially according to the facts (a).

A bill of exchange or promissory note may be given and Bill ornote
taken in satisfaction and discharge of a debt, so as to operate Ken ™
as an absolute, and not merely as a conditional payment; the of the debt.
risk of the dishonour of the instrument then rests upon the
creditor and not upon the debtor, and the subsequent dis-
honour does not revive the original debt (b). Thus, where the
defendant pleaded that the plaintiff accepted a promissory
note in satisfaction and discharge of the debt sued for, the
replication of the plaintiff, that the note was not paid when
due, was held bad (c).

Whether a security is given and accepted in satisfaction
and discharge of a debt or merely on account of a debt, that
is to say, whether it is given and accepted, as an absolute or
a conditional payment, depends on the intention shown by
the parties in the transaction, and is a question of fact (d).
An allegation in a plea, that bills were taken “in payment
of” a debt, does not necessarily mean that they were taken
in satisfaction of it, but is open to the construction that they
were taken “ for and on account ” of the debt (e); so, an al-
legation that a bill was given in “ discharge” was held to
import no more than that the bill was given “ for and on ac-
count of” the debt (f). If the creditor has the offer of cash
in payment of his debt, but takes a bill in preference and
for his own accommodation, it is equivalent to payment in
cash, and is an effectual discharge of the debt; and upon
dishonour of the bill the creditor cannot have recourse to his
original claim (g). But where it merely appears that the cre-
ditor has taken a bill, and does not appear that he had the
choice of cash instead, it is presumed that the bill is taken
as payment only conditionally upon its being paid ; and upon
its dishonour the creditor retains his remedy for his original

(a) See Bullen and Leake, Prec. Pl. M. & G. 40.

2nd ed. 464. (f) Kemp v. Watt, 15 M. & W. 672.
(b) Sard v. Rhodes, 1M. & W. 153 ; (g) Marsh v. Pedder, 4 Camp. 257;
Lewis v. Lyster, 2 C. M. & R. 704. Strong v. Hart, 6 B. & C.160; Smith
(c) Ib. v. Ferrand, 7 B. & C.19; Anderson

(d) Goldshede v. Cottrell, 2 M.& _ v. Hillies, 12 C. B. 499; see Everett
W. 20. y. Collins, 2 Camp. 515 ; Robinson v.
(e) Maillard v. Duke of Argyle, 6 Read, 9 B. & C. 449.
Taking se-
curity for
smaller sum
than the
debt.

Taking se-
curity on
which
debtor is
primarily
liable.

Taking
security on
which
debtor is
secondarily
liable.

478

debt (a). Taking a check of the debtor himself upon a
banker, for immediate payment, in preference to cash, does
not preclude the creditor resorting to his original claim, if
the check is duly presented and dishonoured ; for it is ac-
cepted merely as a particular form of cash payment (5).

As the actual payment of a smaller sum in discharge of a
debt of larger amount can only operate as payment pro tanto,
and cannot operate as a discharge of the whole, soa security
for a smaller amount given and taken for and on account of
a larger debt cannot operate as a conditional payment for
more than the amount will cover (c) ; but a negotiable se-
curity for a smaller amount may be taken in satisfaction and
discharge of a larger debt, and will operate effectually in dis-
charge of it (¢).

If the debtor is himself primarily liable on the bill or note
given on account of the dzbt, as being acceptor of the bill
or maker of the note, and so bound himself to pay it at ma-
turity, it ig necessary for him to allege and prove, in answer
to an action for the debt, that the instrument is not yet due,
or, if overdue, that the plaintiff has indorsed it away so as to
render him liable upon it to a third party, or other circum-
stances excusing the non-payment of it. Thus, a plea, merely
stating that the defendant delivered to the plaintiff for and
on account of the debt a promissory note payable to plain-
tiff’s order six months after date, and not stating that the
note was still running, or any excuse for non-payment, was
held bad on demurrer (¢).

If the defendant is only secondarily liable, as drawer or
indorser of a bill, or indorser of a note, the mere giving of
such instrument to the plaintiff for and on account of the
debt is a sufficient primd fucie defence, even if it is overdue ;
and it lies upon the plaintiff to allege and prove the dishon-
our of it (f). And in such case the plaintiff is bound to take
all'the steps necessary to obtain payment and to secure the

CHAP. 1V. THE DISCHARGE OF CONTRACTS.

(a) Robinson v. Read, 9 B. & C.

449.

(6) Fverett v. Collins, 2 Camp. one
explained in Smith v. Ferrand, 7 B. &
C. 19, 25,

(c) Ante, p. 474; Thomas vy. Hea-

thorn, 2B. & C. 477.

(a) Sibree y. Tripp, 15 M. & W. 23+
(e) Price v. Price, 16 M. & W. 232;
and see Goldshede v. Cottrell, 2 M. &
W. 20; Simon v. Lloyd, 2 ©. "M. GR.

187.

aaa? Pricey. Price, 16 M. & W. 232,
SECT. VIl. PAYMENT. 479

rights of the defendant upon the instrument, in case of its
dishonour ; he is bound to present it for payment when due,
and, if dishonoured, to give due notice of dishonour ; and if
by the neglect of the plaintiff to do this the defendant is
deprived of his rights upon the instrument, he is discharged
from liability not only upon the instrument, but also for the
original debt (a).

The debtor gave to his creditor for and on account of the
debt promissory notes payable to bearer on demand of a
bank which had then, unknown to the parties, stopped pay-
ment; the creditor did not circulate the notes nor did he
present them for payment, but some days afterwards re-
quired his debtor to take back the notes, which he refused
to do; it was held that the creditor by his neglect to pre-
sent the notes for payment, and give notice of the non-
payment to the debtor, had discharged the debtor from
liability (4). In a similar case where the promissory notes
of a bank, payable to bearer on demand, were delivered for
and on account of a debt, the bank having previously
stopped payment without the knowledge of the parties, and
the creditor before a reasonable time for presenting the notes
discovered the insolvency of the bank, and within a reason-
able time after such discovery gave his debtor notice of it
and offered to return the notes, it was held that the creditor
might recover upon his original debt (¢). Where the bill
indorsed by the debtor to the creditor was valueless for want
of a sufficient stamp, it was held that notice of dishonour
was unnecessary, and that the creditor, though he had given
no notice, might recover his original debt (d).

If the debtor pays his creditor by a check or order on a
banker for the payment of money, the check must be pre-
sented within a reasonable time, after which the creditor
holds it at his own risk against the insolvency of the banker ;
and if in consequence of his neglect to present the check the

(a) Bridges v. Berry,3 Taunt.130; 373; and see Rogers v. Langford, 1
Soward v. Palmer, 8 Taunt. 277; C.& M. 637.

Camidge v. Allenby, 6 B. & C. 378, (c) Robson vy. Oliver, 10 Q. B. 704;
382; Peacock v. Pursell, 14 C. B. Turner vy. Stones, 1 D. & L. 122.
N. 8. 728; 32 1. J. C. P. 266. (d) Cundy vy. Marriott, 1B. & Ad.

(b) Camidge y. Allenby, 6B. & C. 696.
480 CUAP. IY. TITE DISCHARGE OF CONTRACTS.

money is lost, the debtor is discharged. The day after the
receipt of the check is held, in general, to be the reasonable
time for presentment, or, if the parties are at a distance, for
posting it for presentment (a). A bill of exchange accepted
generally, but payable at a banker’s, has not the same effect
in throwing the risk upon the holder after the bill is due,
because the holder, though authorized, is not bound to pre-
sent it at the banker’s (0).

If the debtor is not a party to the bill or note given for
and on account of the debt, he is not entitled to notice of
dishonour, nor does the negligence of the creditor in deal-
ing with the instrument affect him, or prevent the debt from
reviving upon dishonour of the instrument ; thus, where a
bill was drawn by the creditor upon and accepted by a third
party for and on account of the debt, upon dishonour of
the bill the creditor was held entitled to recover his debt
without any notice to the debtor (c). So, where the bill
was drawn and accepted by strangers and indorsed by the
drawer to the creditor for and on account of the debt, the
dishonour of the bill was held to revive the debt, although
no notice of dishonour was given either to the debtor, or to
the drawer (d).

Loss of The creditor may lose his remedy for the debt, by the loss
negoteble of a negotiable instrument taken by him from the debtor on
a account of the debt; as, where the creditor took from his
debtor a bill of exchange indorsed by him in blank, and lost
it, it was held that he could not sue for his original debt (e).
So, where the debtor accepted a bill payable to his creditor’s
order, the creditor having lost the bill could not sue for his
debt (f); and it was held to be immaterial that the creditor
had not indorsed it before the loss (g). In a case where the
lost bill got back to the possession of the debtor, it was held

(a) Alexander v. Burchfield, 7 M. (d) Bishop v. Rowe, 3 M.& S. 362;
& G. 1061; Robinson v. Hawksford, and see Van Wart y. Woolley, 3 B.
9 Q. B. 52; Laws vy. Rand, 27 L. J. & CO. 439.

C. P. 76; Bailey v. Bodenham, 16 (e) Champion v. Terry, 3 B. & B.

C. BLN. 8S. 288; 83 L. J.C. P. 252; 295; and sce ante, p. 434.

see Rickford vy. Ridge, 2 Camp. 537 ; (7) Crowe v. Clay, 9 Ex. 604.

Hare y. Henty, 30 L. J. C. P. 302. (9) Crowe v. Clay, supra; and see
(6) Turner v. Hayden, 4B. & C.1.  Ramuz v. Crowe, 1 Ex. 167 ; overrul-
(c) Swinyard vy. Bowes,5M.&S8.62. ing Rolt v. Watson, 4 Bing. 273.
SECT. VII. PAYMENT. 481

that the creditor was no longer bound by the payment by
the bill, and might resort to his original debt (a). The loser
of a negotiable instrument may obtain relief in equity, or
under the Common Law Procedure Act, 1854, 17 & 18
Vict. c. 125, s. 87, upon giving a sufficient indemnity to the
parties liable on the instrument (b).

A negotiable security given merely on account of a spe- Bill or note

en for a

cialty debt has no effect in discharging it, or in suspend- specialty
ing the remedy upon it, until such security is actually ila
paid(c). Thus, a promissory note given on account of rent
due under a demise does not extinsutsh the claim for rent
nor suspend the right of distress, the rent (whether the de-
mise be by parol or deed) being a debt of equal degree with
a debt by specialty (d). So, the giving of bills of exchange
on account of money due under a bond conditioned for
the payment of money constitutes no defence to an action
on the bond (e). A bill of exchange given on account of a
debt covenanted to be paid, and secured by a bill of sale,
does not suspend the debt, or the right to take possession
under the bill of sale (f). And if a bill be given on
account of a debt due under a covenant to pay money,
and judgment be recovered on the bill, it is no defence to
an action on the covenant ; for the judgment alone, though
it merges the security, is no payment without execution, and
the covenant remains unsatisfied (7). A promissory note
given on account of a judgment debt does not suspend the
remedy on the judgment; but it is not, on that account,
without a consideration to support it, for the agreement by
the judgment debtor to suspend his remedy, evidenced by
his taking the note on account of it, is a sufficient considera-
tion (h). ‘

If it is agreed between the creditor and the debtor to take Goods

goods at a fixed value in payment of so much of the debt, Hae’

(a) Widders vy. Gorton, 1 0. B. N. (f) Bramwell vy. Eglington, 5 B. &
8.576; 26L.J C. P. 165. 8. 39; 33 L. J. Q. B. 1380.

(6) See ante, p. 434, (9) Drake v. Mitchell, 3 East, 251 ;

(c) Davis v. Gyde,2 A. & EB, 623. and see Tarleton v. Allhusen, 2 A. &

(d) Davis v. Gyde, supra. EE. 32.

io Worthington v. Wigley, 3 Bing. (2) Baker vy. Walker, 14M. & W.
N. C. 454. 465.

21
Payment
according
to direc-
tions of the
creditor.

482 CHAP. IV. THE DISCHARGE OF CONTRACTS.

the delivery and acceptance of the goods may be regarded as
payment in discharge of the debt (a). The delivery of goods
agreed to be taken by the creditor as equivalent to money
has the effect of part payment in preventing the operation of
the Statute of Limitation (b). The delivery of goods agreed
to be taken as an equivalent for money is also held to be a
payment within the enactment of the bankruptcy law, which
protects bond fide payments against the consequences of any
prior act of bankruptcy of the debtor of which the creditor
at the time of receiving payment had no notice (c).

If the creditor requests his debtor to pay the debt in a
particular manner, and the debtor pays it accordingly, it is a
good payment and discharges the debt; as, where the cre-
ditor wrote to his debtor at a distance requiring him to re-
mit the balance of his account, and the defendant remitted a
bank bill which was retained, though the amount was ob-
jected to, it was held that there was sufficient proof of pay-
ment of the amount of the bill (d). If the creditor directs
his debtor to remit the money in bills by post, and the debtor
does so in the regular manner, and it is lost, the debtor is
discharged (e). If the debtor sends a check, without au-
thority from his creditor to remit in that form, the creditor
is not bound to accept it as payment, and may commence an
action without sending it back (f). So, where the debtor sent
a post office order, without authority or request to remit in
that form, it was held not to be payment, and that the cre-
ditor was not obliged to send the order back (g). If the cre-
ditor requests his debtor to pay the money to a banker and
he does so, that constitutes a good payment; so, where the
debtor kept an account at the banker’s to whom he was re-
quested to pay the debt, and by his instructions the sum was

(a) See Hands vy. Burton, 9 East, 465; and see B. L. C. Act, 1849, s.
849; Saaty v. Wilkin, 11M. & W. 183.

622. (d@) Caine vy. Coulton, 1 H. & C.
(6) Hart v. Nash,2 0. M.& R. 764; 382 L. J. Ex. 97.
337 ; Hooper v. Stephens, 4 A. & E. (e) Per Lord Kenyon, Warwicke v.

71; Blair v. Ormond, 17 Q. B. 423; Noakes, Peake, 67; Hawkins v. Rutt,
20 L. J. Q. B. 444; and sce post, ib. 186.

p- 538. (Sf) Hough v. May, 4 A. & E. 954.
(c) Cannan v. Wood, 2M. & W. (9) Gordon v. Slrange, 1 Ex. 477.
SECT. VII. PAYMENT. 488

transferred from the credit of his own account to that of his
creditor, it was held to be a good payment, though the banker
failed the next day and before the creditor received notice of
the transfer (a). ‘Though no special directions are given about
the mode of payment, if it is made in the usual way of busi-
ness, the debtor is discharged (b). An order or authority
given by a creditor to his debtor to pay the debt to a third
person, if acted upon, operates as a payment of the debt ;
but the order alone does not affect the right of the creditor
to sue for the debt (c).

A written receipt ov admission by the creditor of the pay- Receipt
ment of the money is pi imd fucie evidence against the creditor 84" PY
that the amount stated in itwas paid; but, unless it is executed
with the formality of a deed, it is not conclusive evidence,
and it is competent for the creditor to adduce other evidence
to contradict, or explain it, and to show that the money was
not in fact paid (d). Accordingly, it was held that a receipt
on the back of a bill of exchange might be explained by
evidence showing that the payment acknowledged was made
not in discharge of the bill, but as the purchase money for
it, so that it remained negotiable (¢). In an action brought
by two co-trustees for the recovery of money, for which the
defendant produced a receipt signed by one of the plaintiffs,
it was held that this was not conclusive, and that evidence
was properly admitted to show that the giving of the receipt
was a fraud on the cestui que trust, and that the money had
not in fact been paid (f). In an action by partners brought
to recover a debt, they are not concluded by a receipt signed
by one of them, but may give evidence to show that the re-
ceipt was given by the one in fraud of the others (gy). So,
where two persons were charged with money upon a receipt
signed by both, it was held to be competent for one of them

(a) Eyles v. Ellis, 4 Bing. 112 ; and (d) Graves vy. Key, 3 B. & Ad.3138,
see per Alderson, B., Kayev. Brett,5 318 (a); Foster v. Dawber, 6 Ex.

Ex. 269, 273. 839.

(b) Per Lord Kenyon, Warwicke (e) Graves v. Key,3 B. & Ad. 318.
y. Noakes, Peake, 67; and see Hard- (f) Skaife v. Jackson, 3 B. &C.
man v. Bellhouse, 9 M. & W. 596. 421. ;

(c) Cochrane v. Green, 9 C. B. N.S. (9) Farrar v. Hutchinson, 9 A. & E.
448 ; 30 L. J. C.P. 97; and see‘ As- 641; Henderson v. Wild, 2 Camp.
signment of contracts.” Chap. VI. 561.

2 1-2)
Receipt
given by
creditor.

484 CHAP. IV. THE DISCHARGE OF CONTRACTS.

to discharge himself by showing that the other in fact re-
ceived all the money (a). The plaintiff, in order to protect
his goods from his creditors, made a colourable sale of them
to the defendant by delivering to him possession together
with a priced invoice and a receipt for the price ; it was held
that he was not afterwards concluded by these documents as
against the defendant, but might show the real nature of the
transaction and recover his goods (6).

The usual formal acknowledgment in a policy of marine
insurance of the receipt of the premium is conclusive on the
underwriter as against the assured, because in the recog-
nized course of business between underwriters and brokers
a running account is kept, in which the underwriter accepts
the broker as his debtor, and the assured is authorized to
give credit to the broker upon the faith of such receipt;
the broker is entitled to recover from the assured the
amount of the premiums for which he is debited by the un-
derwriter, although there has been no actual payment; but
as between the broker and the underwriter, the same receipt
may be disputed (c). And in general, if the creditor gives an
agent of the debtor a receipt for money due from the debtor,
on the faith of which he deals differently with his agent, the
debtor is discharged, though the creditor was not actually
paid in money (d).

By the 16 & 17 Vict. c. 59 a stamp-duty of ld. is
charged upon a ‘‘receipt or discharge given for or upon the
payment of money amounting to £2 or upwards,” and by
the 43 Geo. III. c. 126, s. 5, a person who shall have paid a
debt may require the receiver to give a written acknowledg-
ment of the receipt of the money upon a stamped receipt,
and demand payment of the amount of the stamp duty, under
a penalty of £10 for refusing (e). By the Stamp Acts a re-
ceipt lable to the duty cannot be given in evidence, or ad-
mitted to be good or available in law, or equity, unless pro-

(a) Stratonv. Rastall,2 T. R. 366. Jenkins v. Power, 6 M. & 8. 282, 287;

(0) Bowes v. Foster,2H.&N.779; Power v. Butcher, 10 B. & C. 329;

os L. J. a? 262; overruling Alner vy. Anderson y, Thornton, 8 Ex. 425, 428.

eorge, 1 Camp. 392. (d) Wyatt v. Marquis of Hertford

(ce) Dalzell vy. Muir, 1 Camp. 532, 3 East, 147. ene ae
534. (a); Foy v. Bell, 3 Taunt. 498 ; (e) Sve ante, p. 459.
SECT. VII. PAYMENT. 485

perly stamped; but the payment may be proved by other evi-
dence, notwithstanding an unstamped receipt in writing was
given ; and the unstamped receipt may be used to refresh the
memory of a witness who is called to prove the payment (a).

A receipt, or acknowledgment of payment, made under Receipt
seal and with the formalities of a deed operates as an es- “4
toppel in law on the party executing it, that is, it is conclu-
sive according to the terms of the deed, and cannot be con-
tradicted by other evidence (b). A deed contained a recital
that it had been agreed to pay a certain sum of money, and
subsequently contained an acknowledgment “ of the said
sum being now so paid as hereinbefore is mentioned ;” it was
held that the acknowledgment was qualified by the recital
to which it referred and which stated only an agreement to
pay, and not an actual payment of the sum, and that evi-
dence was admissible to show that in fact it never had been
paid (c). Upon the execution of a deed of purchase, ac-
knowledging the receipt of the consideration money, it was
agreed that payment should be made by the delivery of
goods or the doing of work instead of the money ; it was
held that, though the payment acknowledged in the deed
could not be disputed, yet that the agreement might be
supported by considering it as equivalent to a return of the
money so acknowledged to have been paid in consideration of
the goods agreed to be delivered, or the work agreed to be
done, and that such agreement not being inconsistent with
the deed, was admissible in evidence (d).

The receipt of money which is usually indorsed on the
back of a deed involving a money consideration, not being
executed as part of the deed, does not operate as an es-
toppel; it is a receipt or admission in writing not under
seal, which is primd facie evidence of payment, but the
truth of which may be disputed (e).

(a) Rambert v. Cohen, 4 Esp. Smith v. Battams, 26 L. J. Wx. 232.
213; Jacob v. Lindsay, 1 East, 460; (e) Lampon v. Corke, 5 B. & Ald.
Maugham vy. Hubbard, 8B. & C.14. 606; and see as to the effect in equity

(b) Rowntree vy. Jacob, 2 Taunt. of the receipt in the deed, and the re-
141. ceipt usually indorsed upon it, Hayes’

(c) Lampon v. Corke, 5B. & Ald. Conveyancing, 5th ed. v. 2, p. 21, n.
606. (28) ; Davidson’s Prec. Conv. 2nd ed.

(d) Baker v. Dewey, 1B.&C.704;  v. 1, p. 65.
486 CHAP. IV. THE DISCHARGE OF CONTRACTS.

Seen Payment in satisfaction, or accord and satisfaction, made
creditors. to one of several joint creditors discharges the debt at law

against all, because it is a rule of law that if one of the
plaintiffs is barred he cannot recover jointly with the others
in rescission of his own act (a); and where the creditor who
had accepted the payment had died, it was held that the
surviving joint creditor was not entitled to sue after his
death (b). It is immaterial at law, in this respect, that the
joint creditors are trustees of the money to be paid (¢).

It is a general rule in equity that a debtor, having notice
of a trust affecting the money, cannot discharge himself by
payment otherwise than to the persons beneficially entitled ;
but trustees may be expressly or impliedly invested with
power to give receipts, with the effect of discharging the
debtor from seeing to the application of the money, so that
persons claiming beneficially under such trusts must claim
subject to the receipts so given. The receipts of trustees,
in order to discharge the debtor, must be in accordance
with the power with which the trustees are invested (/).

Payment of a debt due to a partnership to one of the
partners discharges the debt, because each partner is a ge-
neral agent for the others in all matters within the scope of
the partnership (e). Payment to one of several executors,
or administrators, of a debt due to the estate discharges the
debtor, because each has authority to collect and receive
debts(f). Payment to one of the assignees of a bankrupt’s
estate of a debt due to the estate is a good discharge in
law (g) ; but Lord Hardwicke held it not to be a discharge
in equity, because the assignees are joint trustees (h). Where
money has been deposited in a bank on a joint account, the

(a) Wallace v. Kelsall,7 M.&W. ed. 310; Davidson’s Pree. Conv.

261; and see as to the rule of law
Jones v. Yates, 9 B. & C. 532, 538;
Gordon v. Ellis, '7 M. & G. 607, 622 ;
per Byles, J., Cooper v. Law, 6 C. B.
N. 8. 502, 512; Brandon v. Scott,
7H. & B. 234; 26L. J. Q. B. 163.

(b) Husband vy. Davis, 10 C. B.
645.

(ce) Husband v, Davis, supra.

(d) See Weatherby v. St. Giorgio,
2 Hare, 624; Forbes v. Peacock,
12 Sim. 528; Lewin on Trustees, 4th

2nd ed. y. 3, p. 162.

(e) See Henderson v. Wild, 2 Camp.
561; Porter v. Taylor, 6 M. & 8.
156; Gordon v. Ellis, 7 M. & G. 607 ;
Dixon on Partnership, p. 245.

(f) See Can v. Read, 3 Atk. 695 ;
Dyer, 236; Jacomb vy. Harwood,
2 Ves. 265; 2 Wms. Ex. 5th ed. 851.

(g) Per Lord Kenyon, C.J., Smith
v. Jameson, 1 Esp 114; Williams v.
Walsby, 4 Esp. 220.

(2) Can vy. Read, 3 Atk. 695.
SECT. VII. PAYMENT, 487

banker is not discharged by payment to one of the deposi-
tors, without the authority of the others («) ; but, after such
payment to one, an action could not be maintained against
the banker by all the depositors jointly, because the one
who had received the money would be disqualified from
suing ; the bankers, however, might be proceeded against
in equity as trustees for all the depositors, and would be
liable for the breach of their trust (4).

Where several debtors are lable in respect of the same
debt, whether jointly or severally, payment of the debt by
one discharges all (c) ; thus, payment by one of joint makers
of a promissory note discharges the other joint makers (d).
Where the creditor sued one of two joint debtors and, upon
payment of a part of the debt by him, stayed proceedings
in that action, it was held that the creditor might neverthe-
less sue the other joint debtor for the residue of the debt (e).

A payment by one of several parties liable for the same
debt of part of the debt, or of interest, was formerly so far a
payment for all that it took the debt out of the Statute of Limi-
tation as against all (f) ; but by the Mercantile Law Amend-
ment Act, 1856, 19 & 20 Vict. c. 97, s. 14, it was enacted
in reference to the Statutes of Limitation that “no co-con-
tractor or co-debtor, executor or administrator, shall lose
the benefit of the said enactments, so as to be chargeable in
respect or by reason only of payment of any principal, in-
terest, or other money, by any other or others of such co-
contractors or co-debtors, executors or administrators ”’ (q).

Payment by an agent properly appointed for that purpose
is equivalent to payment by the debtor, and discharges the
debt (h).

Payment by a stranger of the debt of another, purporting
to be made on behalf of the debtor and subsequently adopted

(a) Per Lord Tenterden, C.J., (e) Watters v. Smith, 2B. & Ad.
Innes v. Stephenson, 1 M. & Rob. 889; Field v. Robins, 8 A. & EH. 90.
145; and see per Maule, J., Husband (f) Whitcomb v. Whiting, 2 Doug.

v. Davis, 10 C. B. 645, 650. 652; Wyatt v. Hodson, 8 Bing. 309.
(2) See Brandon v. Scott, 7E.& (g) And see “Statutes of Limita-
B. 234; 26L. J. Q. B. 163. tion,” post, p. 544.
(c) Beaumont v. Greathead, 2 C. (A) head vy. Goldring, 2M. &S. 86;
B. 494. andsee Wyatt v. Marquis of Hertford,

(d) Jb.; Thorne v. Smith, 10 C.B. 3 East, 147.
659.

Payment by
one of joint
debtors.

Payment
by an
agent.

Payment by
a stranger.
Payment to
an agent.

488 CHAP. IV. THE DISCHARGE OF CONTRACTS.

by the latter, will operate as payment by the debtor him-
self (a). The payment made by a stranger on behalf of the
debtor, but without his prior authority, may be adopted by
the debtor after the commencement of a suit brought for
the recovery of the debt(b). Payment or satisfaction by a
stranger, without the prior authority or subsequent adoption
of the debtor, has been held not to discharge him from the
debt (c); but this doctrine has been questioned, as being
contrary to the maxim of the civil law: “ debitorem igna-
rum, seu etiam invitum, solvendo liberare possumus” (d).

A payment may be made by a third party in purchase of
the debt and for the purpose, of having it assigned to him-
self; in which case the debt is not discharged, but is kept
alive notwithstanding the payment (e). In the case of bills
of exchange, payment made by the acceptor before the
bill is due may be in purchase of the bill, and he may re-
issue it (f). Payment by the drawer before, or after, the bill
is due may be in purchase of the bill, and he may re-
issue it(g). Payment by the drawer or indorser of a bill
of exchange does not necessarily operate to discharge the
acceptor and destroy the title of the holder, because it
may have been made on account of their respective distinct
liabilities only (h).

Payment may be made to an agent duly authorized to
receive payment. Payment to the wife of the creditor is not
a discharge unless she was authorized by him to receive pay-
ment of the debt (i).

A factor who is entrusted with the possession of goods to
sell for his principal, and has authority to sell them in his
own name, is authorized to receive the price ; and payment

(a) Co. Lit. 207 a ; Jones v. Broad-
hurst, 9 C. B. 173, 193; Belshaw v.
Bush, 11 C. B. 191; 22 L. J. C. P. 24.

(6) Belshawv. Bush, supra; Simpson
v. Eggington, 10 Ex. 845 ; 24. J. Ex.
312.

(c) Jones v. Broadhurst, 9 C. B,
173, 193; James v. Isaacs, 12 C. B.
791; 22L. J.C. P. 73.

(d) See per Willes, J., Cook v.
Lister, 13 C. B. N. 8. 548, 594; 32
L. J. C. P. 121, 126.

(e) M'Intyre v. Aliller, 18 M. & W.

725; Graves vy. Key, 3 B. & Ad.
313; and see Chap. VI. “ Assign-
ment of Contracts.”

(f) Morley v. Culverwell, 7 M. &
W.174; Attenborough v. Mackenzie,
25 L. J. Ex. 244.

(g) Callow v. Lawrence, 3 M. & 8.
95; Lazarus vy. Cowie, 3 Q. B. 465.

(2) Jones v. Broadhurst, 9 C. B.
173 ; Randall vy. Moon, 12 C.B. 261;
and see Cook y. Lister, 13 C. B. N.S.
643 ; 32 L. J. 0. P. 121.

(4) Offley v. Clay, 2 M. & G. 172.
SECT. VII. PAYMENT. 489

to him, at any time before the principal intervenes to revoke
his authority, discharges the buyer (a) ; but a broker, not
being entrusted with the possession of goods, nor authorized
to sell them in his own name, is not, in general, authorized to
receive payment (6).

An attorney retained to sue for a debt has authority to
receive payment; and, so long as his retainer continues,
payment to the attorney discharges the defendant (c); so,
the attorney for the defendant is authorised to receive costs
awarded to the defendant (d). But an agent employed by
an attorney in an action to carry on the proceedings in the
action is not authorised to receive payment; and payment
to such agent does not discharge the defendant in the
action (e). The possession of a mortgage deed by an agent,
with authority to receive the interest, does not import an
authority in him to receive payment of the principal (/).

If a shopman is accustomed to receive money over the
counter, such payment to him binds the principal; but if
the shopman so authorized to receive payment takes money
elsewhere than in the shop, that payment is not good (gq).
Payment to a person sitting in a counting-house and appa-
rently intrusted with the conduct of the business is a good
payment, because the debtor has a right to suppose that the
creditor will not allow persons to be on his premises and
interfere with his business without authority (1). Such
implied authority, however, extends only to the receipt of
payments in the way of the business, and not to collateral
transactions (t). In general, if a principal has allowed his
agent to deal in his own name, and the agent has dealt as
principal in the contract without notice to the other party of
the real principal, or that he was acting merely as an agent,

(a) Drinkwater v. Goodwin, 1 (¢) Yates v. Freckleton, 2 Doug.
Cowp. 251, 256; Hornby v. Lacy,6 622

M. & 8. 166,172; Fish v. Kempton, (f) Wilkinson v. Candlish, 5 Ex.
7 C. B. 687. 91; Sims v. Brution, 5 Ex. 802.

(6) Baring v. Corrie, 2 B. & Ald. (9) See Kaye v. Brett, 5 Ex. 269,
137; see ante, 274, 275. 278, 274.

(ce) Powel vy. Little, 1 W. BI. 8; (h) Barrett v. Deere,1 M. & M.

and see Bevins y. Hulme, 15M. &W. 200; and see Wilmot v. Smith, 1M.
88, 96; Robson v. Eaton, 1T. R.62. & M. 238.

(d) Mason v. Whitehouse, 4 Bing. (2) Sanderson v. Bell,2 C. & M.
N. C. 692. 804.
Payment
to agent.

490 CHAP. IV. THE DISCHARGE OF CONTRACTS.

payment to the agent before such notice discharges the
debt (a).

The authority of an auctioneer depends upon his instruc-
tions, and, in general, is contained in the conditions of sale,
which prescribe his authority to receive payment (l). If an
auctioneer is employed to sell goods for ready money, he is
the agent of the vendor to receive the money (c). Where
the conditions of sale provided that part of the purchase
mouey was to be paid down as a deposit and the residue to
be paid at a future day, it was held that the auctioneer was
authorised to receive the deposit money only, and not the
residue, and that the payment to him of the residue did not
discharge the purchaser (d). Where by the conditions of
sale a deposit was to be paid at once, and the remainder of
the purchase money upon delivery of the goods, it was held
that the auctioneer was not authorized to receive payment
by bill, and that a bill having been so given, the subsequent
payment of it in cash after notice of revocation of the auc-
tioneer’s authority did not discharge the buyer (e).

An authority to receive payment prima facie authorizes
receiving payment in money only (f). Authority to receive
payment in money does not, in general, import authority to re-
ceive a bill of exchange, or promissory note, or other security
for the debt (g) ; or to receive payment in goods (h) ; or by
a set-off in account between the agent and the debtor (i) ;
or by returning the agent’s own check which the debtor had
previously cashed for him (j) ; and the debtor is not dis-
charged by such dealings with the agent.

A factor, who has a general authority to receive payment
for goods sold by him for his principal, cannot bind the prin-

(a) Coates v. Lewes, 1 Camp. 444;
Favene vy. Bennett, 11 East, 36;
Ramazotti v. Bowring, 7 C. B. N.S.
851; 29 L. J. C. P. 80; and see ante,
p- 303, 304.

() Sykes v. Giles, 5 M.& W. 645.

(c) Per Parke, B., b. 650; TFU-
liams v. Millington, 1 1. Bl. 81, 85.

(d) Sykes v. Giles, 5 M. & W. 645.

(e) Williams y. Evans, L, Rep. 1
Q. B. 352; 35 L. J. Q. B. 111.

(Sf) See Sweeting v. Pearce, 9 C. B.
N. 58. 584; 30 L. J.C. PB. 100; Cat-

terall v. Hindle, L. Rep. 10. P. 186;
35 L.J. O. P. 161.

(9) Wardy. Evans,2 L.Raym. 928;
Sykes v. Giles, 5 M. & W. 645; Part-
ridgev. Bank of England, 9 Q.B. 396.

(2) Howard v. Chapman, 4 0.& P.

608; Prati v. Willey, 2U. & P.350.

(‘) Russell v. Bangley, 4 B. & Ald.
395; Todd v. Reid, 4B. & Ald. 210;
Slewart v, Aberdein, 4M. & W. 211,
228; Cablerail v. Hindle, supra.

(j) Underwood v, Nicholls, 17 C. B.
239; 25 L. J.C. P. 79.
eo
SECT. VII. PAYMENT. 491

cipal by a settlement of accounts with the buyer in which a
previous advance from the buyer to the factor was taken as
payment (a). An insurance broker employed to collect and
receive the money due upon a policy is held bound to receive
it in money, and is not warranted in setting it off in account
between himself and the underwriter, according to the usage
of Lloyd’s, which does not bind the insurer unless he has
notice of it; so that such setting off in account is no dis-
charge of the underwriter against the claim of the insured (4);
but where the insured had notice of such customary mode
of dealing it was held to bind him (c).

Where the same debtor owes several distinct debts to the Appropria.
i 7 a tion of pay-
same creditor, and a payment is made, the question may ments.
arise as to which debt the payment is to be appropriated to,
and in whom lies the right of appropriation.

It is a general rule that the debtor, m making a payment, Right of
may appropriate it to whichever debt he pleases: ‘ Quid- es
quid solvitur, solvitur in modum solventis” (d). “ There igs Payment.
an established maxim of law that, when money is paid, it is
to be applied according to the expressed will of the payer,
not of the receiver. If the party to whom the money is

_ offered does not agree to apply it according to the expressed
will of the party offering it, he must refuse it, and stand upon
the rights which the law gives him” (e).—‘‘ What the party
receiving the money says to the contrary is immaterial.
The maxim of law as well as of reason and good sense is,
‘Non quod dictum sed quod fuctum est inspicitur’ ” (f).

The appropriation of a payment to a particular debt may
be inferred from the circumstances and mode of making the
payment, though not declared in express terms by the

(a) Catterall v. Hindle, L. Rep.1 596; per Bayley, J., Simsony. Ingham,
C. P. 186; 35 L. J. C. P. 161. 2B. & C. 65, 72; per Tindal, CJ.,

(b) Sweeting v. Pearce,9 C.B.N. Mills vy. Fowkes, 5 Bing. N. C. 455,
8. 534; 30 L. J.C. P. 109; Bartlett 461.

y. Pentland, 10 B. & ©. 760; Scott v. (e) Croftv. Lumley, 5 BE. & B. 648,

Irving, 1 B. & Ad. 605; Gibson v. 680; 25 L. J. Q. B. 73, 84; 8. C. in

Winter, 5 B.& Ad. 96. error, 6 H. L. C. 672; 27 L. J.Q. B.
(e) Stewart v. Aberdein,4M.& W. 321.

211. (f) Per Martin, B., 1.6 H.L.C.

(d) Peters v. Anderson, 5 Taunt. 722; 27 L. J. Q. B. 337.
Right of
debtor to

@
492 CHAP. IV. THE DISCHARGE OF CONTRACTS.

debtor at the time of making it (a). Thus, if a debtor is

appropriate Indebted to his creditor in a debt in his own right, and also

payment.

in another debt in a different right, as executor, and makes
a general payment, he is taken to make it in discharge of
the debt in his own right (b). A payment made to the
exact amount of one of the debts is evidence of an appro-
priation of the payment by the debtor to that debt; so,
payments with discount allowed are presumptively made on
account of debts for which discount might be claimed, in-
stead of those for which the time of credit had expired (c).

A composition of so much in the pound paid by a debtor
to his creditors is a specific appropriation of so much in re-
spect of every pound of every debt, and a creditor receiv-
ing such composition on all his debts, cannot appropriate
the whole amount to some of the debts in preference to the

others ; so that, if any portion of his debts is guaranteed, he

must allow the composition in reduction of that portion and
charge the surety only for the difference (d). So, a dividend
in bankruptcy must be appropriated rateably in discharge of
all the debts on which it is paid (e).

A debtor was indebted on two accounts one of which was
secured by a surety, and in consequence of an application
for payment made by the creditor and by the surety paid a
sum of money without an express appropriation ; it was held
from the circumstances to have been appropriated to the ac-
count for which the surety was liable and for which the ap-
plication had been made (f). But the mere circumstance
that one of the debts is guaranteed by a surety raises no
presumption of appropriation of a payment to that debt, even
in favour of the surety (q).

Two parties between whom cross debts existed stated an
account respecting their debts and struck a balance in favour

(a) Newmarch v. Clay, 14 East, 489; Geev. Pack, 33 L. J. Q. B. 49.

239; Shawv. Picton, 4B. & C.715; (e) Martin v. Brecknell, 2 M. &S.

and see Waters y. Tompkins,2.0.M. 39; Raikes v. Todd, 8 A. & K. 846.

& R. 728, 726. (f) Shaw v. Picton, 4B. & CO. 715.
(b) Goddard v. Cou, 2 Str. 1194. (g) Plomer v. Long, 1 Stark. 153 ;

(c) Marryatts y. White, 2 Stark. Kirby v. Duke of Marlborough, 2 M.
02 & 8.18; Williams vy. Rawlinson, 8

102.
(d) Bardwell y. Lydail,7 Bing. Bing. 71.
SECT. VII. PAYMENT. 493

of one of them ; it was held to be evidence of an agreement
betwen them to appropriate the items on the one side, item
by item, to the satisfaction pro tanto of the items on the
other side, notwithstanding some of the earlier items were
barred by the Statute of Limitation, so that the balance re-
mained due and unaffected by the statute (a). Where the
several debts form the separate items of one general ac-
count, as a banking account, “ there is no room for any other
appropriation than that which arises from the order in which
the receipts and payments take place and are carried into the
account ; presumably it is the sum first paid in that is first
drawn out; it is the first item on the debit side of the ac-
count which is discharged or reduced by the first item on
the credit side; the appropriation is made by the very act
of setting the two items against each other. Upon that
principle, all accounts current are settled and particularly
cash accounts”? (0).

The plaintiff, having taken bills for goods sold to the de-
fendants which were dishonoured, afterwards sold other
goods to them and delivered up the dishonoured bills, receiv-
ing in exchange good bills, more than sufficient to cover the
first debt, but not sufficient to cover the new one in addition ;
it was held that the delivery up of the dishonoured bills
was evidence of an appropriation of the new bills in pay-
ment of the debt for which they had been given, and that
one of the defendants who was originally a partner with the
others, but had ceased to be so when the new debt was in-
curred, was discharged from lability by the payment (c).
Where one of several partners dies, and the surviving part-
ners continue their dealings with a particular creditor, and
the latter joins the transactions of the old and new firm in
one entire account, the payment subsequently made by the
surviving partners without specific appropriation are pre-
sumptively applicable to the debts of the old firm, because it

(a) Ashby v. James, 11M.& W. — Ingham,2 B.& C. 65; and see Stoveld
542; and see Worthington v. Grims- v. Hade, 4 Bing. 154; Field v. Carr,

ditch, 7 Q. B. 479. 5 Bing. 13; Henniker vy. Wigg, 4 Q.
(b) Per Sir W. Grant, Clayton’s B. 792.
case, 1 Merivale, 572; Bodenham v. (ec) Newmarch vy. Clay, 14 East,

Purchas, 2B. & Ald. 39; Simson y. 239.
49-4, CHAP. IV. THE DISCHARGE OF CONTRACTS.

is to be presumed that all the parties have consented that it
should be considered as one entire account, and that the
death of one of the partners has produced no alteration (a).

Right of If the debtor makes a payment generally on account of

pe: his debts, without appropriating it, expressly or impliedly,

pele pay- in payment of a particular debt, the creditor has the right

: of appropriation :—“ Quidquid recipitur, recipitur in modum

recipientis’? (b). The defendant, being indebted for goods

delivered to his wife dum sola, and also for goods delivered to

himself after his marriage, made a payment without any spe-

cific appropriation ; it was held the plaintiff might apply the

payment to the discharge of the debt contracted by the de-
fendant’s wife dum sola (c).

The plaintiff, who had acted as the attorney for a cor-
porate body, without an appointment under the corporate
seal, had claims against the corporation for costs, some of
which he could enforce, and some of which he could not en-
force by reason of the want of a valid appointment; it was
held that he might appropriate money, which had been paid
to him generally on account, to the latter claims (/). But
where the plaintiff had claims against a corporation for build-
ing works done for them under a contract under seal, some
of which he could recover under the contract, but some,
being for extra work, he could not recover for want of a
written authority by the architect as required by the contract,
although the architect had authorized such extra works, it was
held that he could not appropriate a payment to the claim
for extra works ; and the Court laid down that “ the doctrine
as to the appropriation of indefinite payments did not au-
thorise a creditor to apply a payment to what did not con-
stitute. any legal or equitable demand against the party
making the payment” (e). So, where an attorney delivered a

(a) Per Bayley, J., Simson vy. Ing- & C. 357, 362.

ham, 2B. & C. 65, 72. (ec) Goddard vy. Cox, 2 Strange,
(b) Goddard vy. Cow, 2 Strange 1194; sce anfe, p. 492.

1194; Newmarch v. Clay, 14 Kast, (d) -Arnold v. Mayor of Poole, +

239, 213 (a); per Bayley, J., Simson, M. & G. 860.

v. Ingham, 2 B. & ©. 65, 72; per Ab- (e) Lamprell v. Billericay Union,
bott, C.J., Mayfield vy. Wadsley, 3B. 3 Ex. 283, 307.
SECT. VII. PAYMENT. . 495

bill containing some items which were taxable and some not
taxable, and the client made a payment on account, it was
held that the attorney could not appropriate the payment to
the taxable items, leaving the balance due for the non-taxable
items, so as to avoid taxation on all (a).

The creditor may appropriate such payment to the debt
for which he has inferior security ; as, of two debts, one by
contract under seal and the other by simple contract, he may
appropriate the payment to the debt by simple contract, pre-
serving his remedies for the specialty debt (b). So, of two
debts, one guaranteed and the other not, he may appropriate
the payment to the latter; and that, although at the time of
taking the guarantee he did not inform the surety of the ex-
istence of the other debt (c).

The creditor may apply such unappropriated payment in
discharge of a purely equitable debt, as a debt arising out of
a partnership transaction, in preference to a legal debt, and
may then sue his debtor at law for the legal debt (d).

If there be debts, some barred by the Statute of Limita-
tion and some not, and the debtor makes a payment with-
out appropriating it, the creditor may appropriate it to the
debts barred by the statute (¢). The appropriation by the
creditor of an indefinite payment to a debt barred by the
statute does not constitute such a part payment of that debt
as will take it out of the operation of the statute; for in
order to have that effect the payment must be specifically
appropriated by the debtor in discharge of part of a larger
debt, so as to operate as an admission of the balance re-
maining due(f). A debtor being indebted upon three
promissory notes, two of which were barred by the Statute
of Limitation, the creditor applied for imterest, and the
debtor paid a sum on that account generally, which the cre-

(a) James v. Child, 2 Cr. & J. 678. 455, 462 ; but see Goddard v. Hodges,
| (6) Peters v. Anderson, 5 Taunt. 1 OC. & M. 33. .
596. ; (e) Mills v. Fowkes, 5 Bing. N.C.
(c) Kirby v. Duke of Marlborough, 455; Williams v. Griffith,5 M. & W.
2M. & 8. 18; Plomer v. Long, 1 300. :
Stark. 153; Williams v. Rawlinson, (f) Mills vy. Fowkes, 5 Bing. N.C.
3 Bing. 71. 455; Waugh v. Cope, 6M. & W. 824;
(d) “Bosanquet v. Wray,6 Taunt. see “ Statutes of Limitation,” post,
597; Mills v. Fowkes, 5 Bing. N.C. p. 540.
Right of
ereditor to
appropriate
payment,

Appropria-
tion of pay-
ment by
law.

496 CHAP. IV. THE DISCHARGE OF CONTRACTS.

ditor applied to the note not barred by the statute; it was
held that though the mere appropriation by the creditor did
not revive the latter note against the debtor, yet the circum-
stances of the payment showed that the debtor paid the in-
terest on account either of all three notes, or of the latter
only, and therefore that the latter note was revived by the
payment (a).

The defendant, being indebted to the plaintiff for goods
sold, and also for spirits supplied in quantities not amount-
ing to 20s. at a time, for which the plaintiff was prohibited
from suing by the Tippling Act, 24 Geo. II. c. 40, s. 12,
paid the plaintiff a sum without any specific appropria-
tion; it was held the plaintiff might apply the unappro-
priated payment to the claim for spirits (b). In such case,
if neither debtor nor creditor appropriated the payment, the
law would appropriate it to the valid debt (c).

The right of the creditor to appropriate only arises upon
the debtor omitting to exercise the right on his part; so
that when the money comes into the hands of the creditor
from another source without the knowledge of the debtor,
and without his having had any option of appropriating, the
creditor has no right to appropriate (d). Thus, an attorney
having received money on account of his client for damages
recovered in an action, it was held that he had no right to
appropriate the sum in payment of demands against his
client which were barred by the Statute of Limitation (e).
The creditor may make the appropriation at any time after
receiving the money, and is not bound by an intended ap-
propriation, until it has been communicated to the debtor ( f).

If neither the debtor nor the creditor make any appro-
priation, the law, in general, appropriates the payment to

(a) Nash v. Hodgson, 6 De G. M. & (f) Simson v. Ingham, 2B. & C.
G. 474; 25 L. J. C. 186. 65; per Tindal, C.J., A/i7/s v. Fowkes,
(b) Philpott vy. Jones, 2 A. & E. 5 Bing. N. C, 455, 462; per Taun-
41; Crookshank vy. Rose, 5C.&P.19; ton, J., Philpott v. Jones,2 A. & E.

see ante, p. 393. 41, 44.“ According to the civil law,
(c) See Wright v. Laing, 3B.& the election was to be made at the
C. 165; post, p. 497. time of payment; as well in the case

(@) Waller v. Lacy, 1M. & G.54, of the creditor as in that of the
70. debtor :” per Sir W. Grant, M.R.,
(e) Waller v. Lacy, 1M. & G. 54. — Clayton’s case, 1 Mer. 572.
SECT. VITI. RELEASE. 497

the earlier debt (a). A buyer, being indebted to the same
broker for two parcels of goods sold for different principals,
made a payment to the broker to an amount greater than
either debt, but not equal to the sum of both, and without
any specific appropriation to either; the broker having be-
come insolvent before payment over, it was considered that
the justice of the case required that the payment should be
apportioned between the two principals, leaving them re-
spectively entitled to recover only the balance of their debts
from the buyer (6). As between two debts, one arising out
of a lawful contract, the other out of a contract void for ille-
gality, a payment not specifically appropriated by either party,
will be appropriated by law to the debt recognized by law ;
thus, there being two distinct debts, one for goods sold, the
other for money lent on a usurious contract, and a payment
having been made without a specific appropriation to either :
debt by debtor or creditor, it was held that the law would
afterwards appropriate such payment to the debt for goods
sold (¢).

Cuap. IV. Sect. VIII. Retzase.

Release of Right of Action

must be under Seal .
Conditional Release ....
Construction of Release

.. 497
498
.. 499
500. |

Release of one of Co-Debtors 500
by one of Co-Creditors 502

Fraudulent Release ,,,.

Covenant not to Sue

 

   

Tue right of action for a breach of contract may be dis- Release of
charged by release under seal. The term release is generally oe
applied to the discharge of the right of action, after a breach

of contract ; it is also sometimes applied to the discharge of

a contract by consent before a breach; but the discharge

of a contract by consent before a breach may be more
correctly termed a rescission of the contract (d). A gene-

rai release of all actions and demands was held not to

(a) Per Tindal, C.J., Wills v.
Fowkes, 5 Bing. N.C. 455, 461. The
civil law, it is said, applies the pay-
ment to the more burdensome of two
debts where one is more burdensome

burden; Zé., per Sir William Grant

M.R., Clayton's case, 1 Mer. 572.
(6) Favenev. Bennett, 11 East, 36.
(c) Wright vy. Laing, 3 B. & C.

165; see Philpott v. Jones, 2A.&E.

than the other, and to the earlier
debt only where they are of equal

41, ante, p. 496.
(d) See ante, p. 413.

2K
498 CHAP. IV. THE DISCHARGE OF CONTRACTS.

extend to a covenant before breach, because at the time of
the release there was no right of action or demand in re-
spect of the covenant (w). Such a release will discharge a
bond conditioned to pay a sum of money at a future time,
although when the release was given the time for payment
had not arrived and the obligee had no right of action (4).
It will also discharge a present debt payable at a future
time (c). A release of all covenants is a good discharge of
a covenant before it is broken (d).

sheet A simple contract, before breach, may be rescinded and

under discharged by a simple agreement of the parties without a

— deed under seal; but a contract under seal, before breach,
cannot be rescinded or discharged without a deed (e). After
breach, the right of action, whether arising from breach of
simple contract or contract under seal, may be discharged
by a release under seal or by accord and satisfaction; but
it cannot be discharged by a parol release, or by a simple
agreement not under seal (/).

eee A release under seal, being subject to the rules-regulating

quire con- contracts under seal, does not require a consideration to sup-

sideration. hort it ; and the acceptance of the release by the releasee is
presumed (q).

Release _ A release, as being under seal, also operates in law as an

i nag estoppel on the party executing it, according to its terms (i).
Upon the completion of a sale a deed of conveyance of the
property was executed by the vendor whereby he released
the purchaser from all claim in respect of the purchase, and
all monies due in respect thereof; it was held that he was
thereby estopped from claiming an additional sum, although
the sum actually paid, by reason of an error in calculating
interest, was less than what had been agreed upon as the
price (i). In an action on a bond brought against one of
two joint obligors, the defendant pleaded that the plaintiff

(a) Hancock v. Field, Cro. Jac. 170; (f) Harris v. Goodwyn, 2M. & G.
Hoe’s case, 5 Co. 71; Co. Lit. 292d. 405; see ante, p. 414.
(b) Co. Lit. 8. 512; sce Tynan v. (g) See ante, p. 84, 88.
Bridges, Cro. Jac. 300. (hk) Rowntree vy. Jacob, 2 Taunt.
(e) Co. Lit. 292 6. 141; Baker v. Dewey, 1B. & C. 704;
(d) Ib. cited ante, p. 485.

(e) See the cases cited, ante, p. 418, (*) Harding v. Ambler, 3M. & W.
note (ec). 279.
SECT. VIII, RELEASE. 499

had released the bond to the other obligor, and the plaintiff
replied that the release was executed on the understanding
by the defendant that the release should not operate in his
discharge ; the replication was held bad, because it set up
matter at variance with the terms of the plaintifi’s deed of
release (a).

An exception to the rule that a right of action for breach Discharge

: of bills and

of contract cannot be discharged by a release or agreement notes by
not under seal occurs with the contracts formed by bills of eae
exchange and promissory notes, which are regulated by the
custom of merchants: the liability upon these instruments,
both before and after they have become due and payable,
may be discharged by the holder by express renunciation
or waiver, without deed and without consideration (b).

A release, or agreement amounting to a release, made Release in
upon good consideration, though not under seal, is effectual te:
in equity, and might be pleaded in an action at law as a ™t
defence upon equitable grounds (c); but a voluntary release
without deed, and without consideration, is equally invalid
in equity and at law (i). A representation by the creditor
to his debtor of his intention to release the debt, though not
made under seal, if acted upon by the debtor, may become

binding’ upon the creditor in equity (e).

A release may be in its terms conditional upon the hap- Conditional
‘ : - release.
pening of a given event (jf). By a deed of arrangement
between a debtor and his creditors, it was agreed that the
debtor should have a letter of license to carry on his trade
for five years, and that, if any creditor during the continuance
of the license should molest or interfere with the debtor,
the latter should be discharged from the debt of that cre-
ditor ; a creditor, party to the deed, having sued the debtor

(a) Cocks v. Nash, 9 Bing, 341; and and see Taylor v. Manners, L. R.
see Brooks v. Stuart, 9 A. & EH. 854. 1 Ch. Ap. 48; 35 L. J. C.128.

(6) Byles on Bills, 8th ed. 182; (d) Tufnell y. Constable, 8 Sim.
Foster v. Dawber, 6 Ex. 839, 846, 69; see Taylor v. Manners, supra.
851; and see Steele v. Harmer, 14M. (e) Yeomans v. Williams, L. R.
& W. 831; Cook y. Lister, 13. C.B. 1 Eq. 184; 35 L. J. C. 283.

N.S. 543, 593; 32 L. J.C. P. 121, (f) Gibbons v. Vouillon, 8 C. B.
126; ante, p. 417. 483; and see Mord v. Beech, 11 Q. B.

(c) See De Pothonier v. De Mattos, 852, 872; and see Belshaw v. Bush,
E. B. & E. 461; 27 L. J. Q. B. 260; 11 C. B. 191, 202, 204.

2x2
Construc-
tion of re-
lease.

Release of
one of co-
debtors.

500 CHAP. IV. THE DISCHARGE OF CONTRACTS.

within the five years, it was held that the release thereby
became absolute, and was pleadable in bar to the action (a).
So, where a deed of composition expressly provided that if
an action should be brought by one of the creditors within
a certain time, the deed might be pleaded in bar or in dis-
charge of such action, it was held that, upon a creditor
bringing an action within the time, the proviso operated to
discharge the action and might be pleaded in bar (b).

General words of release may be qualified by the previous
recitals in the deed; thus, where the deed recited .that the
releasee had agreed to pay a sum of money to the releasor,
and then proceeded to release the sum ‘so paid as herein-
before mentioned,”’ it was held that the words of the release
were qualified by the recital referred to, which stated only
an agreement to pay and not an actual payment of the
money, and that the releasor was not estopped from alleging
that it had never been paid (c). So, the general words of a
release may be restrained by the recital of the particular
class of debts to which alone it is intended to apply (d).
A release of all actions whatsoever was held to be restricted
in effect by the recital stating that the deed was intended
to apply only to actions then depending (ce). A general re-
lease in a composition deed is construed as restricted to
debts and liabilities which are the proper subjects of the com-
position (f). A general release, executed by a person who
has a separate debt owing from the debtor, and who is also a
joint creditor with others in respect of a debt owing from the
same debtor, imports a release of the separate debt only (9).

Where several debtors are jointly, or jointly and severally,
liable for one and the same debt, the release of one of the
co-debtors, in general, operates as a release of all (h). The

(a) Gibbons vy. Vouilion, 8 C. B. 483. we Simons v. Johnson, 3 B. & Ad.
(6) Walker v. Nevill, 3 H. & C.
403; 34L. J. Ex. 73. Mop Hazelgrove v. House, 35 L. J.
(c) Lampon v. Corke, 5B. & Ald. Q.B.1; L.R.1Q.B. 101; Gresty
606. Y. Gibson, L. R.1 Ex. 112; 56 Lod.

(d) Payler v. Homersham, 4M. & Ex. 74.
8. 423; Wilkinson v. Lindo, 7 M. & (9) Per Lord Abinger, C.B., Bain
W. 81; Bain v. Cooper, 9M. & W. vy. Cooper, 9 M. & W. 701, 707.
701; see Teede v. Johnson, 11 Ex. (2) Co. Lit. 232; Clayton v.
640; 25 L. J. Ex. 110. Kynaston, 2 Salk. 57k: Cheetham y.
SECT. VIII. RELEASE. 501

original contract may expressly reserve to the creditor a
power of releasing one of the debtors without discharging
the co-debtors, and then, in accordance with their contract,
notwithstanding the release of one, the rest remain liable (a).

The release of one of several co-debtors may also be
qualified in its terms by an express reservation of the right
of action of the creditor against the other creditors. The
plaintiff executed a deed of release to one of two makers of
a joint and several promissory note, and the deed contained
an express clause that the release should not operate to dis-
charge any one jointly lable to the plaintiff with the releasee;
it was held that it did not release the other maker of the
note (b). So,a release of one of two parties who had entered
into a joint and several covenant, accompanied by a proviso
that the release should not prejudice the right of the cove-
nantee to enforce the covenant against the other, was held
not to affect the liability of the other covenantor (c). So,
a release of one of two obligors of a joint and several
bond, subject to a similar proviso, does not release the co-
obligor (d). The qualification of the release must be con-
tained in the same deed, and cannot be introduced by ex-
trinsic evidence (e). |

The plaintiff released one of two partners who were in-
debted to him by a deed of release containing a proviso
that it should not prejudice his claim against the other
partner, and that in order to enforce that claim it should be
lawful for the plaintiff to sue both partners jointly; it was
held that he might sue both jointly, and that in such action
the deed could not be pleaded as a release by the party to
whom it was given (f). Such a deed might be pleaded in
bar to an action by the creditor against the debtor alone
in whose favour the deed was executed (y). A deed of

Ward, 1B. & P. 630, 633; Nichol- (ce) Thompson v. Lack, 3 C. B. 540.
sony. Revill, 4 A. & E. 675, 683; (a) Price v. Barker, 4 E. & B. 760.
and see Cocks v. Nash, 9 Bing. 341 ; (e) Cocks v. Nash, 9 Bing. 341;
Brooks vy. Stuart, 9 A. & E. 854; Brooks v. Stuart, 9 A. & E. 854;
cited ante, p. 499. cited, ante, p. 499.

(a) Cowper v. Smith, 4M. & W. (f) Solly v. Forbes, 2 B. & B. 38;

519; Union Bank of Manchester v. and see Willis v. De Castro, 4C. B.
Beech, 3H.&C. 672; 34L. J. Ex. 133. N.S. 216; post, p. 505.

(b) North v. Wakefield, 13 Q. B. (gy) Keyes v. Elkins, 5 B. & 8.240;
536, 31h. J.Q.B 28,
Release by
one of co-
creditors.

Release in
fraud of

third party.

Release by
trustee in
fraud of
cestui que
trust.

502 CHAP. 1V. THE DISCHARGE OF CONTRACTS.

composition by a debtor under the Bankruptcy Act, 1861,
containing a release by his creditors without a reserve ©:
remedies against sureties, is not binding on creditors who
do not execute it, if it appears that such creditors are
secured by sureties for their debts, and therefore cannot be
pleaded in an action by such creditor against the debtor, or
against any joint debtor with him (a).

A release of a debt or cause of action by one of several

co-creditors, in general, discharges the debtor as against
all (0).

If a release is executed by one of several joint creditors
in collusion with the debtor, in order to defraud the other
creditors, the court will exercise its summary jurisdiction to
prevent it being pleaded in bar of an action brought in the
names of all the joint creditors (c). The court will interfere
only in a case of fraud; if one of several co-plaintiffs, inter-
ested in the cause of action, executes a release to the de-
fendant without consideration, the court cannot, merely on
that account, interfere to prevent such release from being
pleaded (d). So long as a person has an interest, however
small it be, it is sufficient to enable him to release an action
in which he is a plaintiff (e).

Where the creditor holds the debt as trustee for a third
person, and an action is brought in his name as nominal
plaintiff in respect of the legal interest in the debt, the
person beneficially interested being no party to the action,
the release of the trustee or nominal plaintiff on the record
would be an effectual answer to the action, although given
without any privity or consent on the part of the cestu: que
trust. But the court will exercise a summary jurisdiction to
prevent a release, executed by a trustee or mere nominal
plaintiff, being used fraudulently to defeat the action which

(a) Andrew v. Macklin, 6 B. & 8. es Phillips v. Clagett, 11 M.& W.
201; 34 L. J. Q. B. 89; Hidson v:
Barclay, 3H. & C.9, 361; 34 L. J. @ Per Parke, B., Rawstorne v.
Tix. 217; Johnson v. Barratt, 4H. Gandell, 16 M. & W. 304, 308;
& C.16; L.R.1 Ex. 65; 35 L. J. Jones v. Herbert, 7 Taunt. 421; Her:

Tex. 15. bert v. Puen, 20. & M. 384; Crook
(6) Ruddock’s case, 6 Rep. 25; vy. Stephen, 5 Bing. N.C. 688.
Wilkinson v. Lindo, '7 M. & W. 81. (e) Per Parke, B., Rawstorne v.

(c) Barker v. Richurdson, 1Y.& 3. Gandell, 15 M. EW. 3804, 307.
503

is brought for the benefit of the cestui que trust (a). In
the common case of the assignee of a debt using the name
of the assignor in an action to recover the debt, the court
will not allow a release of the debt executed by the assignor
to be set up to defeat the action (2). So, in the case of a
wife separated from her husband and using his name in an
action to recover a debt to which she is beneficially entitled,
the court will not allow a release by the husband to be
pleaded (c). It seems that in some cases the courts of law
have set aside the release itself; but it is said that this has
been per incuriam, and that the courts of law have no autho-
rity to set aside the release; all they can do is not to allow
the release to be pleaded (cd).

Since the C. L. P. Act, 1854, ss. 83, 85, has permitted Replication
pleadings on equitable grounds a release given by one co- ed
plaintiff collusively with the defendant in fraud of the other equitable
co-plaintiffs, if pleaded, may be met by an equitable repli- ;
cation of the fraud; so likewise, a plea of a release by a
trustee, or nominal plaintiff, may be met by a replication
on equitable grounds that it was given to the defendant
collusively, and in fraud of the party beneficially interested,
who is the real plaintiff in the action. In the case of De Po-
thonier v. De Mattos (e), a replication upon equitable grounds
to pleas of release and payment, that the plaintiff had as-
signed the debt, and that, after notice of the assignment
to the defendant, the release was given and the payment
made in order to defraud the assignee, who was suing in the
name of the assignor for his own benefit only, was held good
on demurrer.

If the release is obtained by a fraud of the debtor upon Release

the releasing creditor, without collusion on the part of the oo by

SECT. VIII. RELEASE.

(a) Hickey v. Burt, 7 Taunt. 48 ;
and see Payne v. Rogers, Doug. 407 ;
Gibson v. Winter, 5 B. & Ad. 96.

(b) Legh v. Legh, 1 B.& P. 447 ;
per Parke, B., Rawstorne v. Gandell,
15 M. & W. 304, 307; and see
Phillips v. Clagett, 11 M. & W. 84;
De Pothonier v. De Mattos, E. B. &
E. 461; 27 L. J. Q. B. 260.

(ce) Innell y. Newman, 4 B. & Ald.
419.

(4) Per Parke, B., Phillips v.
Clagett, 11 M. & W. 84, 93; see
Payne v. Rogers, Doug. 407 ; where
a tenant, the nominal plaintiff, having
given arelease to the defendant, the
court ordered it to be given up on au
application by the landlord on whose
behalf the action was brought; and see
Barker v. Richardson, 1 Y. & J. 362.

(e) E. B. & E. 468; 27 L.J.Q.B.
260.
Covenant
not to sue.

Covenant
not to sue
one of co-
debtors.

504 CHAP. IV. THE DISCHARGE OF CONTRACTS.

latter, and is pleaded as a defence, it may be met by a repli-
cation of fraud as in the case of a release obtained by fraud
from a single creditor; and there is no occasion for summary
interference by the court to set aside the plea, or for an equi-
table replication (a).

A covenant under seal made by a creditor to his debtor,
covenanting absolutely not to sue for a particular debt or
breach of contract, does not in terms release the right of
action, and only purports to render the covenantor liable
for suing in breach of the covenant; but between the
two parties to the covenant, where the damages recover-
able in an action brought for suing contrary to the covenant
would be equal in amount to the debt or damages recover-
able in the action covenanted to be forborne, if an action be
brought in breach of the covenant, the covenant not to sue
may be pleaded as a defence, upon the principle of avoiding
circuity of action, that is, im order to avoid the recovering a
sum of money in one action, which may be recovered back
in another action between the same parties. The covenant
not to sue becomes thus, in effect, equivalent to a release, and
in pleading may be so treated (6). A covenant not to sue,
in order to operate as a release upon the ground of avoiding
circuity of action, must be between the same parties as the
original right of action (c).

A covenant not to sue one of several persons jointly liable,
though it may be pleaded as a release by the covenantee,
does not operate as a release of the others (d). So, a cove-
nant by one of several joint creditors not to sue the debtor
does not discharge the debt as against the creditors jointly,
but only gives the debtor a right of action against the cove-
nantor, if he breaks his covenant (e).

A composition deed made between a debtor and his

(a) Wild y. Williams,6 M. & W. Morley v. Frear, 6 Bing. 547, 554;

490; per Parke, B., Phillips v. Cla-
gett, 11 M. & W. 84, 93; and see
Robinson v. Lord Vernon, 7 0. B. N.
8. 231; 29 L. J. C. P. 185.

(6) 2 Wms. Saund. 47 g g; per
Buller, J., Smith v. Mapleback,1 T.
T. 441, 446; Burgh v. Preston, 8
R. R. 483, 486; per Tindal, C.J.,

Ford vy. Beech, 11 Q. B. 852, 871.

(c) Webb v. Spicer, 13 Q. B. 886.

(d) Lacy v. Kinaston, 1 L. Raym.
690; Dean v. Newhall, 8 T. R. 168;
Hutton vy. Eyre, 6 Taunt. 289 ; Price
v. Barker, 4 E. & B. 760.

(e) Walmesley v. Cooper 11 A. &
E. 216.
SECT. VIII. RELEASE. 505

creditors coutaining a release of the debtor, but with a re-
serve of the remedies of the creditors against other persons
jointly liable with the debtor, is construed, as against the
joint debtors, merely as a covenant not to sue the debtor,
so that the joint debtors are not thereby discharged, and
in an action against them cannot plead it as a release of the
debt (a). But as against the debtor with whom the cove-
nant is made, if sued alone, such a deed is effectual as a re-
lease and may be pleaded in bar of the action (b). A deed
of composition made by a debtor under the Bankruptcy Act,
1861, containing a release of the debtor, without preserving
the remedies of the creditors against other persons jointly
liable with the debtor, does not become binding by force of
the act against non-executing creditors, in case there be
such persons jointly liable with the debtor (c).

A covenant not to sue for a limited time does not operate Covenant
as a release, even between the parties to it, and is not avail- fected
able as a defence on the ground of avoiding circuity of time.
action, but operates merely as a covenant, for breach of
which the covenantee may bring his action for damages (d).
So also, a covenant not to sue until the happening of a
certain event (e). A covenant not to sue on a bond during
the life of the obligor, except in case of assignment for
the benefit of the assignee, was held to be no answer to
an action by an assignee of the bond in the name of the
obligee (f). So, a simple contract engaging to suspend
the remedy on a previous contract for a limited time,
does not operate as a discharge or suspension pleadable in
bar, but only gives a right of action for damages for its
breach (g).

But a covenant not to sue for a limited time, with a con-
dition that, if a suit be brought before the time, the right
of action shall be forfeited, operates as a discharge by force
of the condition, if the action be brought within the time,

(a) Willis v. De Castro, 4 C.B. 573; Carth. 63; Thimbleby v. Bar-

N.S. 216. ron, 3 M. & W. 210; 2 Wms. Saund.
(b) Keyes v. Elkins, 5 B.& 8.210; 150 a.

341. J. Q. B. 25. (e) Webb v. Spicer, 13 Q. B. 886.
(c) See ante, p. 502 (a). (f) Morley v. Frear, 6 Bing. 547.

(d) Ayloffe v. Scrimpshire, 2 Salk. (g) Ford v. Beech, 11 Q. B. 852.
Merger.

506 CHAP, [V. THE DISCHARGE OF CONTRACTS.

and may then be pleaded in bar to the action (a). A deed
of composition between a debtor and his creditors contained a
covenant on the part of the creditors not to sue before a cer-
tain date, and that the deed might be pleaded as a bar or in
discharge of every action brought contrary to the true intent
and meaning of the deed; it was held, in an action brought
by a creditor within the time, that the covenant not to sue
for a limited time, being accompanied by the express pro-
vision that during the limited time it might be so pleaded,
was pleadable in bar to the action (0).

Cuap. IV. Secor. IX. Murcer anp Esropret.

Merger of inferior in higher Estoppel by Judgment against
RO MOMY  wiciacsacsiotinerenna 506 Blaintill’ iyisnrsimadaeasecet 510
Remedies must be co-exten- Action pending ........0..00000. 513

BIVE: cicsonncasmcanmmnanaiine 507 | Foreign Judgment against De-

Merger by Judgment against fondant -riescaermeyseteias

 

Defendant ........0.. 00... 508 against Plaintiff...

It is a general rule of law that a party by taking or acquir-
ing a security of a higher nature in legal operation than the
one he already possesses merges and extinguishes his legal
remedies upon the minor security or cause of action; that
is to say, if a bond or covenant is taken for a simple con-
tract debt, the remedy upon the simple contract is extin-
guished; andif a judgment is recovered in an action brought
upon a simple contract, or bond, or specialty debt, the origi-
nal right of action is merged in the judgment, which, being
matter of record, is of a higher nature (c). The merger or
extinguishment of the inferior security takes place by mere
operation of law, independently of any intention of the parties
that the higher security should operate in satisfaction or dis-
charge of the inferior security (d).

(a) Gibbons v. Vouillon, 8 C. B. Owen v. Homan, 3 Mac. & G. 378,
483 ; cited ante, p. 500; Belshaw v. 407; 20 L. J. C. 314, 323; Price v.

Bush, 11 C. B. 191, 202, 204, Moulton, 10 C. B. 561, 572, 573.

(6) Walker v. Nevill, 3 OH. & C. (d) Pricey. Moulton, 10 C. B. 561;
403; 34 L. J. Ex. 73; and see per Lord Truro, L.C., Owen v. Ho-
Corner v. Sweet, 35 L. J. C. P. 151. man, 3 Mac. & G. 378, 408; 20 L. J.

(c) Higgen’s case, 6 Co. 45 6;  C. 314, 324; per Parke, B., Norfolk
Drake v. Mitchell, 3 Wast, 251,259; Ry. Co. v. M'Namara, 3 Ex. 628, 632.
SECT. IX. MERGER AND ESTOPPEL. 507

In an action brought to recover a debt upon a simple con-
tract the defendant pleaded that, in pursuance of an agree-
ment to that effect, he executed an indenture whereby he
covenanted with the plaintiff to pay him the debt; the plea
was held good, although it contained no allegation that the
indenture was accepted by the plamtiff in satisfaction of the
debt, Maule, J., saying: ‘ It does not merge or extinguish
the debt ; but it merges the remedy by way of proceeding
upon the simple contract.—The intention of the parties has
nothing to do with that.—The policy of the law is, that there
shall not be two subsisting remedies, one upon the covenant,
and another upon the simple contract, by the same person
against the same person for the same demand” (a).

It is a necessary condition of the merger that the two The reme-
£48 ‘ : -___ dies must
securities be co-extensive, that is to say, that the superior pheco-exten-

security be made for the same identical debt, and between on bt to
the same parties, as the inferior security. Thus, if a bond
for a limited amount is given to secure a simple contract
debt for money then owing, and such further sums as should
be afterwards advanced to an indefinite amount, there is no
merger (b). So, where a banker, upon opening an account
with a customer, took from him a bond to secure his current
balance of account, it was held that such bond did not merge
the remedy by simple contract for future advances (c).
It has been laid down that a merger may operate in re-
spect of part of an entire debt; but this seems still to be
doubtful (d). A merger in a higher security may be pleaded
as to part of an indebitatus count, because several distinct
debts may be claimed under such count; if the plaintiff
wishes to object that the part pleaded to was part of an
entire and indivisible debt, he should plead a replication to
that effect (e).
The supericr security must also be between the same andas to
parties as the inferior security in order to operate in merger Repeats

(a) Price v. Moulton, 10 C. B. 561. (d) Higgen’s case, 6 Co. 45 a; cited

(b) Norfolk Ry. Co. v. M‘Namara, by Jervis, O.J., Price v. Moulton, 10
3 Ex. 628. G. B. 561, 570.

(ce) Holmes v. Bell,3 M. & G. 213; (e) See Price v. Moulton, 10 C. B.

Price v. Moulton, 10 C. B. 561, 572. 561, 570.
508 CHAP. IV. THE DISCHARGE OF CONTRACTS.

of it. Thus, a superior security given by a third person, as
surety for the debt, does not, by operation of law, extinguish
the remedy against the principal (a); and a superior security
given by the debtor to a third person, as trustee for the
creditor, does not effect a merger of the liability to the
creditor (b). So, a bond given by a debtor with a surety,
to secure a simple contract debt, was held not to effect a
merger of the debt secured ; because the parties to the se-

curities were not the same (c).

One of two makers of a

joint and several promissory note gave to the holder a deed
of mortgage to secure the amount, with a covenant to pay
it; it was held that the other maker of the note was not
thereby discharged, because the remedy given by the spe-
cialty security, being confined to one of the debtors only,
was not co-extensive with that which the creditor had upon

the note (d).

A judgment recovered upon the collateral security for a
debt, though it may merge that security, does not operate to
change the original debt or cause of action. Thus, where
a bill of exchange was given on account of a debt due under
a covenant, and judgment was recovered in an action brought
upon the bill, it was held that the judgment alone, without
satisfaction, though it merged the remedy upon the bill,
was no bar to an action upon the covenant (e).

A new security which is not co-extensive with a prior one,
though it does not by mere operation of law, independently
of the intention of the parties, effect a merger, yet, by agree-
ment of the parties may be given and accepted in satisfac-
tion, and so operate as a discharge ; and an inferior security
may by agreement be given and accepted in satisfaction of
a right of action on a contract of a higher nature (/).

Merger by In Higgen’s case (g) the plaintiff brought an action on a
Judgment ond, to which the defendant pleaded a judgment previously

recovered

(a) White v. Cuyler, 6 T. R. 176.
(6) Bell v. Banks, 3M. & G. 258.
(c) Holmes vy. Bell, 3 M.& G. 218.
(d) Ansell vy. Baker, 15 Q. B. 20;
Sharpe v. Gibbs, 16 ©. B. N. 8. 527;
Boaler v. Mayor, 19 0. B.N.8. 76;

34 L. J.C. P. 230; and see Twopenny
v. Young, 3 B. & C. 208.

(e) Drake v. Mitchell, 3 East, 251.

(f) See ante, p. 467.

(9) 6 Co. 45 6; and see re Corbet
Davies, 1 Weekly Notes, 321.
SECT. IX. MERGER AND ESTOPPEL. 509

recovered on the same bond, and it was resolved, “ that as against de.

long as the judgment remains in force, he cannot have an ac-
tion upon the same bond ; for as he who has a debt by simple
contract, and takes a bond for the same debt, or any part of
it, the contract is determined, so when a man has a debt ona
bond, and by ordinary course of law has judgment thereon,
the contract by specialty, which is of an inferior nature, is by
judgment of law changed into a matter of record, which is
of a higher nature. ”

This doctrine has been further explained as follows :—“ If
there be a breach of contract, or wrong done, or any other
cause of action by one against another, and judgment be re-
covered in a court of record, the judgment is a bar to the ori-
ginal cause of action, because it is thereby reduced to a cer-
tainty, and the object of the suit attained, so far as it can be
at that stage ; and it would be useless and vexatious to sub-
ject the defendant to another suit for the purpose of obtain-
ing the same result. Hence the legal maxim, “ transit in
rem judicatam,’—the cause of action is changed into matter
of record, which is of a higher nature, and the inferior re-
medy is merged in the higher” (a).

A judgment recovered against one of two joint debtors is
a bar to an action against the other (b); but a judgment
against one of two joint and several debtors lable for the
same debt is no bar to an action against the other, unless
the judgment has been satisfied ; so long as any part of the
debt remains due, the other may be sued (c).

With respect to joint debtors of whom one or more is out
of the jurisdiction, the Mercantile Law Amendment Act,

(a) King v. Hoare, 13 M. & W.
494, 504; Brown v. Wotton, Cro. Jac.
73; Lechmere v. Fletcher, 1 C. & M.
623, 634; Smith v. Nicolls, 5 Bing.
N. C. 208, 220.

(b) King v. Hoare, 13 M. & W.
494; and see Buckland v. Johnson,
15 C. B.145; 23 L. J. C. P. 204.

(c) Ayrey v. Davenport, 2 B. & P.
N. BR. 474; Lechinere v. Fletcher, 1
C. & M. 623, 685; and see King v.

Hoare, 13M.& W.494, 505. In actions
for wrongs independent of contract a
judgment recovered against one of
several joint wrongdoers is, without
satisfaction, a bar to an action against
the others for the same cause ; Brown
v. Wotton, Cro. Jac. 73; and see
King v. Hoare, 13M. & W. 494, 504 ;
yet the joint wrongdoers are separately
liable, and if sued separately cannot
plead in abatement.

fendant.

Judgment
recovered
against one
of joint
debtors.
Estoppel
by judg-
ment
“against
plaintiff.

510 CHAP. IV. THE DISCHARGE OF CONTRACTS.

1856, 19 & 20 Vict. c. 97, s. 11, enacts that a person enti-
tled to a cause of action against two or more joint debtors
“shall not be barred from commencing and suing any ac-
tion or suit against the joint debtor or jomt debtors who was
or were beyond seas at the time the cause of action or suit
accrued after his or their return from beyond seas, by reason
only that judgment was already recovered against any one
or more of such joint debtors who was not or were not be-
yond seas at the time aforesaid.” Before the passing of the
above Act the Statute of Limitation did not begin to run in
favour of joint debtors, of whom one or more were beyond
seas, until his or their return («); but by the 11th section of
the above Act the time begins to run in favour of those joint
debtors who are not beyond seas from the time of the ac-
cruing of the cause of action, notwithstanding some of the
joint debtors are beyond seas. It has thus been made ne-
cessary for the creditor to sue those joint debtors who are
not beyond seas promptly ; and in order to preserve the re-
medy against those who are beyond seas upon their return,
the above enactment obviates the effect of a previous judg-
ment against a joint debtor.

A judgment recovered against the plaintiff in an action is
conclusive between the parties as to all matters adjudicated
upon; and the plaintiff is thereby estopped from disputing
the same matters im a fresh action; so that in an action
brought by the plaintiff upon the same cause which has been
decided against him by a judgment upon the merits in a pre-
vious action, the defendant may plead the judgment by way
of estoppel (0).

In order that the judgment in the former action may
operate as an estoppel against the plaintiff bringing another
action against the defendant for the same matter, the judg-
ment must have proceeded upon grounds which, as decided,
are a valid defence to the second action, and not merely upon
grounds which are peculiar to the form or circumstances of

(a) Fannin v. Anderson, 7Q.B. 662; Overton v. Harvey, 9 C. B.324;
811; see post, p. 526. see Phillipsy. Ward, 2 H. &C. 717;
(b) Vooght v. Winch, 2 B.& Ald. 831. J. Ex. 7.
SECT. IX. MERGER AND ESTOPPEL, 511

the first action, and which may not affect the second (a).
Thus, where the plaintiff had failed in a former action from
having misconceived the form of his action, it was held he
might bring another action in the proper form for the same
cause (b). So, where a defendant relies upon an estoppel
against the plaintiff by reason of a judgment recovered
against him in a previous action brought by him for the same
cause against a joint contractor with the defendant, he must
show that the previous judgment was obtained upon grounds
affording a common defence to all the joint contractors, as it
might have proceeded upon grounds peculiar only to the de-
fendant in that action and not available by the others (c).
If the plaintiff fails in the former action because it was pre-
maturely brought, he is entitled to bring another action
when his cause of action is complete ; as, where the purchaser
of an estate sought to recover his deposit before the contract
was rescinded, and failed on that ground, he was held entitled
to recover it in another action brought after a recission of
the contract (d). So, an action brought for the price of goods
before the credit had expired would not prevent a recovery
for the same goods after that period (ce). The plaintiff dis-
counted a bill for the defendant upon the defendant signing
a distinct undertaking to pay interest at a certain rate on
the bill, if not paid at maturity ; the plaintiff sued the defend-
ant in an action upon the bill only and recovered judgment,
and afterwards brought another action upon the agreement
for the interest ; it was held that the judgment recovered in
the action upon the bill was no answer to the action for the
interest which accrued due previously to the judgment, be-
cause the plaintiff could not have recovered such interest in
the former action (f).

“ The facts actually decided by an issue in any suit cannot
be again litigated between the same parties, and are evi-
dence between them, and that conclusive, for the purpose of
terminating litigation ; and so are the material facts alleged

(a) Hadley v. Green, 2 C.&I.374; (a) Palmer v. Temple,9 A. & EB.
see Phillips v. Ward, 2H.&0.717; 508.
82 L. J. Ex. 7. (e) Tb. 521.

(b) Hadley v. Green, supra. (f) Florence v. Jennings, 2 C. B.

(c) Phillips v. Ward, supra. N. 8.454; 26 L. J. C. P. 274,
612 CHAP. IV. THE DISCHARGE OF CONTRACTS.

cea by one party, which are directly admitted by the opposite

recovered, party, or indirectly admitted by taking a traverse on some
other facts, but only if the traverse is found against the
party making it” (a).

Upon this principle where the defendant in an action has
pleaded a set-off which has been decided against him upon
the merits, and afterwards brings an action in respect of the
same claim, he may be met by a plea in estoppel of res judi-
cata (b). And if in an action for the price of goods sold
the defendant seeks to reduce the price by the diminution of
value caused by a breach of warranty of the quality of the
goods, he is estopped from afterwards recovering the same
amount as damages for the breach of warranty in a cross
action; he may bring a cross action for special damages
arising from the breach of warranty, which could not be
allowed in reduction of the price in the former action (c). In
an action to recover a debt the plaintiff proved his claim to
a certain amount, but omitted proof of a further amount
which he was then aware of and might then have recovered ;
it was held that he could not maintain a second action for
the amount omitted (d). So, where the plaintiff has recovered
judgment in a previous action for part only of the debt
claimed, the judgment is a bar to a second action brought
for the same debt (e). So, a party was held to be estopped
by the verdict against him on a plea of set-off, although he
offered no evidence in support of the claim of set-off (f). The
plaintiff, having brought a former action against the defend-
ant claiming on a promissory note and also for goods sold,
upon a writ of inquiry after judgment by default proved
for the amount of the note only, and brought a second ac-
tion for the goods sold; the defendant pleaded the recovery
of damages in the former action, to which plaintiff replied.

(a) PerParke, B., Boileauy. Rutlin,
2 Ex.665, 681; per Willes, J., Howlett
y. Tarte, 10 C, B. N. S. 813, 826; see
Carter v. James, 138°M, & W.137.

(b) Eastmure y. Laws, 5 Bing. N.
C. 444; Stanton v. Styles, 5 Ex. 578.

(c) Per Lord Ellenborough, Fisher
y. Samuda, 1 Camp. 190; Mondel v.

Steel, 8M. & W. 858; Rigge v. Bur-
bidge, 15 M. & W. 598.

(a) Lord Bagot v. Williams, 3 B.&
C. 235.

(e) Siddall v. Raweliffe,10.&M.
487; Todd v. Stewart, 9 Q. B. 759.

(f) Eastmure y. Laws, 5 Bing. N.
C. 444.
SECT, IX. MERGER AND ESTOPPEL. 513

that the cause of action was not the same for which the
damages had been recovered; it was held that upon that
issue the plaintiff was entitled to a verdict (uw). The defendant
in a second action at the suit of the same plaintiff was held
not to be estopped from pleading a defence, which was not
inconsistent with the facts found against him, or admitted by
him, in the former action, merely by reason of hishaving omitted
to plead it in that action, to which it was applicable (0).

The commencement and pendency of an action, before it Action
has arrived at judgment, does not merge or extinguish the ?™""&
cause of action; and the pendency of an action in one
court cannot be pleaded in bar to an action brought for the
same cause in another court; it may, however, be pleaded in
abatement, upon the principle that a person ought not to be
twice vexed for the same cause (c).

The pendency of an action in an inferior court (d), or ina
foreign court (e), cannot be pleaded in abatement to an action
in a superior court. The pendency of an action in a superior
court affords no bar to proceedings in the county court for
the same cause (/).

The pendency of an action against the defendant, sued °
jointly with another for the same demand, may be pleaded in
abatement of an action against the defendant solely (9) ; and
an action against a sole defendant may be pleaded in abate-
ment of an action against the same defendant sued jointly
with another for the same cause (/); but the pendency of
an action against one of two joint contractors sued alone
cannot be pleaded in abatement of an action against the
other joint contractor sued alone (7) ; although a judgment

(a) Seddon v. Tutop, 6 T. R. 607. yv. Nicolls, 5 Bing. N. C. 208; Scott

(2) Howlett v. Tarte, 10 C. B.N.
8. 813; 31 L. J.C. P. 146.

(ce) Earl of Bedford v. Bishop of
Exeter, Hob. 187; per Bayley, J.,
Harley v. Greenwood, 5 B. & Ald. 95,
101; see Henry v. Goldney, 15 M. &
W. 494.

(d) Laughtonv. Taylor,6 M. & W.
695.

(e) Cou v. Mitchell,’7 C. B. N. S.
55; 29 L. J.C. P. 33; and see Smith

y. Lord Seymour, 1 H. & C. 219; 31
L. J. Ex. 457; 32 ib. 61.

(f) Bissill v. Williamson, 7 H. &
N. 391; 31 L. J. Ex. 131.

(9) Earl of Bedford v. Bp. Exeter,
Hob. 187.

(h) Ib.; Rawlinson vy. Oriet, 1 Show.
73.
(4) Henry v. Goldney, 15M. & W.
494; and see Newton v. Blunt, 3 C. B.
675.

21
:
514 CHAP. IVY. TIE DISCHARGE OF CONTRACTS.

recovered against the one joint contractor is a bar to an
action against the other (a).

seovetae A judgment recovered against the defendant in a foreign

ee court of justice does not operate in this country as a merger

defendant. of the original cause of action; it does not entitle the plain-
tiff to execution here, or give him any higher security ; and,
if not followed by satisfaction, it affords no defence to an
action on the original cause (b). If the sum awarded by the
foreign judgement is paid, the original cause of action is
thereby discharged, and the payment of the amount of the
judgment forms a good defence (c).

A final judgment of a foreign court is conclusive between
the parties on the merits, and, as establishing a debt be-
tween the parties, will form a distinct ground of action in
an English court; in such action the defendant cannot avail
himself of any defences upon the merits which might have
been pleaded in the original action in the foreign court (d).

Foreign A final judement against the plaintiff in a suit brought by

ee him in a foreign court, being conclusive as to the merits, is,

plaintiff. go far, an estoppel against his suing for the same cause of
action in the courts of this country (e).

Cuap. IV. Szcr. X. Arbitration AND AWARD.

Award respecting cause of Agreement to refer...........0... 517
ACHOMY, 6.5 aiciacreionsaasedmaiisnined 515 | Arbitration as a Condition pre-
Pendency of Arbitration ... .. 516 cedent in a Contract ......... 518

Arbitration A RIGHT of action may be referred to arbitration instead of
the regular course of procedure; this may be done by agree-
ment of the parties, or, in some cases, by a compulsory

(a) King v. Hoare, 13 M. & W. (d) See ante, p. 74; where sce also
49-4; ante, p. 509. as to the grounds on which foreign
(b) Smith v. Nicolls, 5 Bing. N.C. judgments may be questioned.
208; Bank of Australasia v. Harding, (e) Plummer v. Woodburne, 4 B. &
9 C. B. 661; Bank of Australasia vy. C.625; and see General Steam Nav.
Nias, 16 Q. B. 717. Co. v. Guillou, 11 M. & W. 877;

(ce) Barber v. Lamb, 8 C.B.N.8. Ricardo v. Garcias, 12 Cl. & F. 368;
95; 29 L. J.C. P. 234. Frayes v. Worms, 10 C. B. N.8. 149.
SECT. X. ARBITRATION AND AWARD. 515

order of the court or a judge, upon the application of either
party (a). :

An award duly made respecting a cause of action referred Award per-
to arbitration, if followed by performance of the award, is a cents
complete satisfaction and discharge of the cause of action.

An award alone without performance may be a discharge Award un-
of the cause of action, where it appears, from the nature of P~™
the reference and of the award made in pursuance of it, that
the award alone supersedes the cause of action referred and
operates in discharge of it. Where the award, being duly
authorized by the agreement of reference, changes the nature
of the original demand, and substitutes a different right, as,
where it awards the payment of a certain sum of money in
lieu of a mere claim for damages, the award alone, in gene-
ral, discharges the cause of action upon which it was made,
without performance of it, and is a good defence to an action
brought for the original cause. But where the award does
not vary the nature of the original cause of action or destroy
its original quality, as where the amount only of a debt is
referred, and the award merely ascertains the amount and
directs that it shall be paid, and the money payable under
the award is nothing but the original debt so ascertained in
amount, the award alone, without performance, does not dis-
charge the original cause of action, and is no defence by way
of plea (b). An action for a breach of a covenant in a lease
by not repairing was referred to arbitration, and in pursu-
ance of the reference it was awarded that the defendant
should pay £5, and should put the premises in repair and
leave the same at Lady Day; it was held that the award alone
discharged the claim for damages arising out of the breach
of covenant, and that an action brought for the breach of
covenant was sufficiently met by a plea of the award, with-
out an allegation that it was performed (c).

An award, so long as it remains unimpeached, concludes Avard is

: 3 2 2 , conclusive
the rights of the parties respecting which the reference is as to the

made; as, where it is awarded that no debt or performance ao
(a) C.L.P. Act, 1854, 17 & 18 Vict. (b) Allen v. Milner, 2 C. & J. 47.

c. 125, s. 3; see Chitty’s Practice, (c) Gascoyne v. Edwards, 1 Y.&

12th ed. p. 1631; Lush’s Practice, by J. 19; cited and explained in Allen

Dixon, p. 1037, 1068. y. Milner, 2 0. & J. 47, 53.

212
Enforcing
award, by
action.

By attach-

ment.

Pendency
of arbitra-
tion,

516 CHAP, IV, THE DISCHARGE OF CONTRACTS.

is due, the reference and award is a good answer to an
action upon the alleged right (a). Where the amount of
damages accruing from a breach of covenant was referred to
an arbitrator, it was held, in an action on the covenant, that
the arbitrator’s award was conclusive as to the amount of
damages, unless the award itself could be impeached (0).
The award is conclusive as to all matters within the scope
of the reference, and which might then be brought forward ;
and if upon the reference one of the parties omits then to
prefer his claim respecting such a matter, he cannot after-
wards make it the subject of a fresh action (c).

An award may be enforced by an action upon the agree-
ment to perform the award, where such an agreement is
contained, expressly or impliedly, in the reference to arbi-
tration (d) ; and, in some cases, it may be enforced by a
bill for specific performance in equity.

Where the reference is made a rule of court, the award
may be enforced by attachment ; and, if it be an award to
pay money or costs, it has the effect and the remedies of a
judgment, by the 1 & 2 Vict. c. 110, s. 18, and may be en-
forced by execution. The C. L. P. Act, 1854, 17 & 18 Vict.
c. 128, s. 17, provides that “every agreement or submis-
sion to arbitration by consent, whether by deed or instru-
ment in writing not under seal, may be made a rule of any
one of the Superior Courts of law or equity at Westminster,
on the application of any party thereto, unless such agree-
ment or submission contain words purporting that the
parties intend that it should not be made a rule of court.”
This provision does not apply to a submission to arbitration
not contained in a written instrument (¢).

The commencement and actual pendency of an arbitration
respecting a debt or right of action in pursuance of an agree-
ment to refer, before an award is made, is no answer to

(a) Parkes v. Smith,15Q.B.297. 442; 34L. J. Ex, 41; see Wileor v.
(b) Whitehead v. Tattersall, 1 A.  Storkey, L. R. 1 C. P. 671; see fur-
& i. 491. ther as to the modes of enforcing an
(c) Dunn v. Murray, 9B. & C. 780. award Russell on Awards, 3rd ed. p.
(d) Lievesley v. Gilmore, L. R. 504, 578; Chitty Pract. 12th ed. p.
1C. P. 570; 35 L. J.C. P. 351. 1692; Lush’s Pract. by Dixon, p.
(ce) Ev p. Glaysher, 3 H. & C. 1062.
SECT. X. ARBITRATION AND AWARD. 517

an action for the recovery of the debt or damages (a) ; nor
does it afford a good matter of defence to — action upon
equitable grounds (d).

A mere agreement to refer disputes to arbitration, al-
though contained as a stipulation in the terms of a contract
at the time of making it, with reference to the possible dis-
putes which might arise upon it, does not, in general, oust
the jurisdiction of the court to entertain an action for a
breach of the contract, and does not constitute any ground
of defence to such action (r).

A charterparty contained a covenant, that in case any
difference should arise between the parties respecting aly
part of the agreement it should be settled by three arbitra-
tors, to be chosen as therein mentioned; in an action on
the charterparty the defendant pleaded the covenant to
refer and that he had offered to refer the matter according
to the covenant, but that the plaintiff refused ; it was held
that the plea was bad, and that an action might be brought,
notwithstanding the covenant to refer to arbitration (d).
A lease of a coal mine contained an agreement between the
parties that, if any difference should arise between them
touching any matter expressed in the deed, it should be
settled by two arbitrators to be appointed as therein men-
tioned, it also contained mutual covenants to obey and per-
form the award and not to bring any action without first
submitting all matters to arbitration; it was held that the
agreement and covenants to refer did not oust the jurisdic-
tion of the court, and could not be pleaded in bar to an
action for a breach of a covenant of the lease (e).

A covenant or agreement to refer disputes to arbitration
may form a binding contract, and, if broken, may give ground
for an action for the breach; although such covenant or

(a) Harris v. Reynolds,7Q.B.71. 25 L. J. Ex. 308; 5 H. L. C. 811;
(2) Wood v. Copper Miners Co. Scott v. Corporation of Liverpool, 3

17 C. B. 561; 25 L. J.C. P. 166. De G. & J. 334, 368; 28 L. J. C.
(c) Thompson v. Charnock, 8T.R. 230, 238.

139; Horton v. Sayer, 4 H. & N. 643; (d) Thompson v. Charnock, 8'T.R.

29 L. J. Ex. 28; Roper v. Lendon,1 139.

EK. & E. 825; 28 L. J. Q. B. 260; (e) Horton v. Sayer, 4 H. & N.

and see Scott vy. Avery, 8 Ex. 487; 618; 29 L. J. Ex. 28.

oe
to refer to
arbitration

Action for
breach of
agreement

to refer.
518 CHAP. IV. THE DISCHARGE OF CONTRACTS.

agreement does not oust the jurisdiction of the ordinary

legal tribunals to entertain an action respecting the matters

in dispute which are agreed to be referred, and constitutes

no answer or defence to an action brought respecting those

matters (#). An action for a breach of a covenant or agree-

ment to refer disputes to arbitration would not, in general,

serve any useful purpose, as the damages could only be nomi-

nal; unless the performance of the agreement was secured

by a stipulation for liquidated damages in case of breach (b).

A court of equity will not entertain suits for the specific

performance of such agreements; nor is an agreement

to refer a dispute to arbitration a good answer to a bill in
equity respecting the matter referred (c).

Staying By an enactment of the C. L. P. Act, 1854, 17 & 18 Vict.

ae c. 125, s. 11, ‘ whenever the parties to any deed or instrument

ment to in writing shall agree that any then existing or future diffe-

‘ rences between them shall be referred to arbitration, and

any one of the parties so agreeing shall nevertheless com-

mence any action at law or suit in equity against the other

party or parties in respect of the matter so agreed to be re-

ferred, it shall be lawful for the court in which the action or

suit is brought, or a judge thereof, on application by the

defendant, upon being satisfied that no sufficient reason

exists why such matters cannot be or ought not to be re-

ferred to arbitration according to such agreement, and that

the defendant was at the time of bringing such action or

suit, and still is, ready and willing to join and concur in all

acts necessary and proper for causing such matters so to be

decided by arbitration, to make a rule or order staying all

proceedings in the action or suit, on such terms as to costs

and otherwise, as to such court or judge may seem fit” (d).

Aybitration It may be validly stipulated as part of a contract that,

made a on z ‘ “
condition Pefore any right of action can arise under the contract, it

(a) Livingston v. Ralli, 5 B.&B. 28. & 8S. 418.
132; 241. J. Q. B. 269; see Thomas (d) See Russell v. Pellegrini, 6 E.
v. Fredricks, 10 Q. B. 775 ; Cooperv. & B. 1020; Pennell vy. Walker, 18
Shuttleworth, 25 Li. J. Ex. 114. C. B. 651; Blyth v. Lafone,1 E.& E.
(b) See Street v. Rigby, 6 Ves. 814. 435; 28 L. J. Q. B. 164; Wickham
(c) Street v. Rigby, 6 Ves. 815;  v. Harding, 28 L. J. Ex. 215; Ran-
South Wales Ry. Co. v. Wythes, 5 De degger v. Holmes, L. R. 1 0. P. 679;
G.M. & G. 800; Agar v. Macklew,  Seligmann v. Le Boutillier, ib. 681.
SECT. X. ARBITRATION AND AWARD. 519

shall be a condition precedent that the sum to be claimed, or precedent
the amount of damages to be recovered, shall be settled by ™ nes
a reference to arbitration, and then the settlement by arbi-
tration becomes a condition precedent which must neces-

sarily be fulfilled before a right of action upon the contract

can arise (a).

A policy of insurance on a ship contained the condition
that the sum to be paid for loss or damage should be settled
in a specified manner, and if a difference should arise rela-
tive to the settling any loss or damage, or any other matter
relative to the insurance, it should be settled by arbitrators
appointed in manner therein mentioned, and it was pro-
vided that no action should be brought on the policy until
the matters in dispute should have been referred to and de-
cided by the arbitrators, and then only for such sum as the
said arbitrators should award, and the obtaining the decision
of such arbitrators was declared in the policy to be a condi-
tion precedent to the right to maintain any action or suit ; it
was held that the condition was legal, and that no action could
be maintained until it had been fulfilled (6). A policy of in-
surance against fire contained the condition, that in case any
difference or dispute should arise between the insured and
the company touching the loss or damage, such difference
should be referred to arbitration, and the award of the arbi-
trators be conclusive on all parties ; it was held that the re-
ference to arbitration of the amount of the loss was not a
condition precedent to the right to sue on the policy, and did
not oust the jurisdiction of the court in such action (¢).

By a policy of insurance against death or injury by acci-
dent the insurers were to pay such sum by way of compen-
sation as should appear just and reasonable and in propor-
tion to the injury received, such sum to be ascertained in case
of difference in the manner provided by the conditions in-

(a) Scott v. Avery, 5H. L.C.811; — of Liverpool, 8 De G. & J. 334.

8 Ex. 487; 25 L. J. Ex. 308; per () Scott v. Avery, 8 Ex. 487; 5
Bramwell, B., Horton v. Sayer,4H. H. UL. C. 811; 25L.J. Ex. 308 ; and
& N. 643, 651; 29 L. J. Fx. 28, 33; see Goldstone v. Osborne, 2 C. & P.
Braunstein v. Accidental Death Ins. 550; Tredwen v. Holman, 1 H.& C.
Co., 1 B.& 8.782; 31L.J5.Q.B.17; 72; 31 L. J. Ex. 398.

Roper v. Lendon, 1 BE. & E. 825; 28 (c) Roper v. Lendon, 1B. & EB. 825;
L. J. Q. B. 260; Scolt v. Corporation 28 1.. J. Q. B. 260.
Ke
520 CHAP. 1V. THE DISCHARGE OF CONTRACTS.

dorsed upon the policy, one of which conditions was that in
case of difference of opinion as to the amount of compensa-
tion the question should be referred to arbitration ; it was held
that, a difference having arisen, the reference to arbitration
to settle the amount became a condition precedent to the
right of action for compensation (a). At a horse race, it was
a condition that the stewards should decide who was the
winner, and in case of any dispute the decision of the
stewards should be final; it was held that a decision of the
stewards in favour of the plaintiff was a condition precedent
to his claiming the stakes as winner, and that, failing to
show such a decision, though he claimed to be in fact the
winner, he must be nonsuited (b).

A contract for the performance of certain works to be paid
for in a certain manner contained a proviso that no sum
should be considered due, nor should the contractor make
any claim on account of any work executed by him, unless
the engineer of the works should certify the amount thereof
and that the contractor was reasonably entitled thereto; it
was held that the claim of the contractor was left entirely to
the judgment of the engineer, and that no right at law or in
equity could arise without his decision (c).

Cuap. IV. Szor. XI. Srarures or Limrration.

   

Statutes limiting Actions :— Renewal of Simple Contract
on Simple Contracts......... 521 Debts :—
on Contracts by Specialty... 521 by new Promise............... 531
on Debts by Statute ......... 522 by conditional and limited
Disabilities excepted by the PROMISE 55 sssaescc seweccea ces 534
Statutes :— by Payment ........ .. 536
affecting Plaintiffs............ Effect of Renewal 541
affecting Defendants.. Renewal of Specialty Debts 542
When the Statutes begin ‘to Renewal by one of Joint-Debt-
TUN ae atdvoaruieccatsineenmade tear 526 OVS), date wideinGraiokatetaca st 543
Effect of the Statutes ........... 529 | Capacity of Partyto renewDebt 544

Statutesof THE right of action for a breach of contract may be barred
Limitation py the Statutes of Limitation, which prescribe a certain

(a) Braunstein v. Accidental Death 25 L. J. Ex. 169.
Insurance Co.,1 B. & 8.782; 31 L. (ce) Scott v. Corporation of Liver-
J. Q. B. 17. pool, 3 De G. & J. 834; 28 L. 5. 0.
(6) Browny. Overbury, 11 Ex.715; 230.
SECT. XI. STATUTES OF LIMITATION. 521

limit of time from the vesting of the right of action within
which the action must be commenced.

The principal enactments respecting the limitation of ac- Simple con-
tions upon contracts are the following :-—Actions founded trhets.
upon simple contracts are included, with other actions, in the
statute 21 Jac. I. c. 16, s. 3, which, so far as it relates to
simple contracts, enacted ‘that all actions of account and
upon the case, other than for such accounts as concern the
trade of merchandise between merchant and merchant, their
factors ‘or servants, all actions of debt grounded upon any
lending or contract without specialty, all actions of debt
for arrearages of rent,—shall be commenced and sued within
the time and limitation hereafter expressed, and not after,
that is to say, the said actions upon the case, and the said
actions for account, and the said actions for debt,—within
six years next after the cause of such actions or suit, and not
after.”’ The actions upon the case in the above enactment
include actions of asswnpsit, which is the form of action ap-
propriate for a breach of a simple contract other than a mere
debt (a). The exception of actions of account between
merchants has been repealed by the Mercantile Law Amend-
ment Act, 1856, 19 & 20 Vict. c. 97, s. 9 (8).

Actions founded upon contracts under seal and by spe- Contracts
cialty are limited by the statute 3 & 4Wm. IV. c. 42, s. 3, pe ae
which enacted “ that all actions of debt for rent upon an in- cialty.
denture of demise, all actions of covenant or debt upon any
bond or other specialty, and all actions of debt or scire fa-
cias upon any recognizance, and also all actions of debt upon
any award where the submission is not by specialty, or for
any fine due in respect of any copyhold estates, or for an
escape, or for money levied on any fiert factas, and all ac-
tions for penalties, damages, or sums of money given to the
party grieved by any statute now or hereafter to be in force,
—-shall be commenced and sued within the time and limita-
tion hereinafter expressed and not after; that is to say, the
said actions of debt for rent upon an indenture of demise, or
covenant, or debt upon any bond or other specialty, actions

(a) Battley v. Faulkner, 3 B. & (b) See Inglis v. Haigh, 8M. & W.
Ald. 288, 294; Chandler v. Vilett, 2 469 ; per Tindal, C. J., Cottam v, Par-
Was. Saund. 120. ridge, 4M. & G. 271, 283.
Debts
created by
statute.

ctr

22 CHAP. IV. THE DISCHARGE OF CONTRACTS.

of debt or scire facias upon recognizance, within twenty
years after the cause of such actions or suits, but not after ;
the said actions by the party grieved, within two years after
the cause of such actions or suits, but not after; and the
said other actions within six years after the cause of such
actions or suits, but not after; provided that nothing herein
contained shall extend to any action given by any statute
where the time for bringing such action is or shall be by any
statute specially limited.”

Before the passing of this statute, contracts by specialty
were presumed by law to have been satisfied, if it did not
appear that something had been done within twenty years to
acknowledge them; and, accordingly, in actions upon such
contracts, the Court would direct the jury to presume satis-
faction in the absence of proof of such acknowledgment.
The above enactment put an end to the doctrine of presump-
tive satisfaction, and substituted a peremptory bar to actions
on contracts by specialty after twenty years, subject to the
express provision as to acknowledgment contained in the oth
section of the statute (a).

Actions for debts created by statutes are, in general, con-
sidered as founded on specialty, and are subject to the limi-
tation of the above enactment (4) ; thus, an action by a com-
pany for calls under “ the Companies Clauses Consolidation
Act, 1845,” (8 Vict. c. 16, s. 25), was held not to be an ac-
tion on a contract without specialty within the meaning of
the before mentioned Statute of Limitation of James which
prescribed six years as the limit for bringing such actions (¢) ;
and it has also been held that such calls constitute specialty
debts in the administration of the estate of a deceased share-
holder (d). “The Joint Stock Companies Act, 1857,” (20
& 21 Vict. c. 14, s. 13), expressly enacted that calls made
under that statute on a contributory in the process of
winding up a company should be deemed to be specialty
debts due from such contributory to the company; and

(a) Post, p. 542; Sanders v. Coward, (b) Sce Jones v. Pope, 1 Wms.
15 M. & W. 48, 57; Morley v. Morley,  Saund. 86; ante, p. 16.
5 De G. M. & G. 610, 625; 25 L. J. (ec) Cork and Bandon Ry. Co. v.

C.1,6; Roddam v. Morley, 2 K.& Goode, 13 ©. B. 826.
J. 336, 312; 25 L. J. C. 329, 331; 1 (d) Wentworth y. Chevill, 26 L.
De G.&J.1. J. UC. 760.
SECT. XI. STATUTES OF LIMITATION. 523

“the Companies Act, 1862,” (25 & 26 Vict. c. 89, s. 70)
repealing the former Act, has enacted to the same effect (a).
An action for tolls payable under a statute by the owners of
shipping passing a harbour was held to be an action on a
specialty within the above section, which might be brought
at any time within twenty years (0).

By the statute 31 Eliz. c. 5, s. 5, “all actions for any for-
feiture upon any penal statute made or to be made, the
benefit and suit whereof is or shall be by the said statute
limited to the Queen, her heirs or successors, and to any
other which shall prosecute in that behalf, shall be had,
brought, sued, or commenced, by any person that may law-
fully pursue for the same as aforesaid, within one year next
after the offence committed or to be committed against the
said statute.’ This statute is held to apply to actions given
to informers for the benefit of themselves alone, as well as to
actions by informers qui tam, the benefit whereof is limited
to the Queen and to the informer (¢). Actions for penal-
ties, damages, or sums of money given to the party grieved
by any statute must be commenced within two years after
the cause of such actions under the above cited enactment of
3&4 Wm. IV. c. 42, 8. 8.

An action of debt for a penalty due under a bye-law made
by virtue of a charter is held to be an action grounded upon
a contract without specialty, and is barred by 21 Jac. I.
c. 16, s. 3, if not commenced witbin six years after the
penalty becomes payable (¢4). An action for calls by a com-
pany established under a statute of a colonial legislature is an
action on a simple contract (e).

By the statute 21 Jac. I. c. 16, s. 4, and the statute
3&4 Wm. 1V., c. 42, s. 6, with respect to the causes of
action to which they respectively refer, it is enacted to the
effect that if in any of such actions judgment for the plaintiff
is reversed in error, or judgment arrested after verdict for

Penalties.

(a) See Robinson’s case, 3 Sm. & 152; 35 L. J. Ex. 105.
Giff. 272; 6 De G. M. & G. 572; 26 (d) Tobacco Pipe Makers Co. v.

L. J. C. 95; ante, p. 96. Loder, 16 Q. B. 765; 20 L. J. Q. B.
(b) Shepherd v. Hills, 11 Ex.55; 414.
25 L. J. Ex. 6. (ce) Welland Ry. Co. v. Blake,6 Hi.

(ec) Dyer v. Best, L. Rep. 1 Ex. & N. 410; 301. J. Ex, 161.
Disabilities
excepted
by the sta-
tutes,—
affecting
plaintiffs.

524 CHAP. IV. THE DISCHARGE OF CONTRACTS.

the plaintiff, the plaintiff may commence a new action within
a year, and not after.

There are some special circumstances occasioning a dis-
ability in the plaintiff or defendant of suing or being sued at
the time when the cause of action accrues, which the Statutes
of Limitation have excepted from their general operation.

As regards the plaintiff :—-By the statute 21 Jac. I. c. 16,
(cited above as limiting actions founded upon simple con-
tracts), s. 7, it is provided “that if any person or persons
that is or shall be entitled to any such actions (enumerating
them) be or shall be, at the time of any such cause of
action given or accrued, within the age of twenty-one years,
Jfeme covert, non compos mentis, imprisoned, or beyond the
seas, then such person or persons shall be at liberty to
bring the same actions, so as they take the same within
such times as are before limited, after their coming to or
being of full age, discovert, of sane memory, at large, or re-
turned from beyond the seas, as other persons having no
such impediments should have done.” Actions on the case
on assumpsit, which are included in the limiting clause, are
not mentioned in the enumeration of the actions in the
above saving clause ; they are, nevertheless, held by judicial
decisions to be within it (a).

By the statute 8 & 4 Wm. IV. c. 42, (cited above as li-
miting actions founded upon contracts by specialty), s. 4,
the same circumstances of disability as those above men-
tioned in the statute of James, with the exception of im-
prisonment, are, in similar terms, excepted from the limit-
ing operation of the statute.

By the Mercantile Law Amendment Act, 1856, 19 & 20
Vict. c. 98, s. 10, the privilege under the above statutes of a
plaintiff who is imprisoned, or beyond seas, of being exempt
from their operation is taken away, and it is enacted that
no person or persons who shall be entitled to any action, with
respect to which the period of limitation is fixed by the above
statutes, “shall be entitled to any time within which to com-
mence and sue such action or suit beyond the period so fixed

(a) Chandler y, Vilett, 2 Wins. Saund, 120; Piggott v. Rush, 4 A. & KH. 912.
SECT. XI. STATUTES OF LIMITATION. 525

for the same by the enactments aforesaid, by reason only of
such person, or some one or more of such persons, being at
the time of such cause of action or suit accrued beyond the
seas, or 1mprisoned.”’

As regards the defendant :—By the statute 4 Anne, c. 16, Disabilities
s. 19, it is enacted “that if any person or persons against ee
whom there is or shall be any cause of action (amongst
others) of account, or upon the case, or of debt grounded
upon any lending or contract without specialty, of debt for
arrearages of rent (which causes of action are specified in
the above statute 21 Jac. I. c. 16, s. 3), shall be at the time
of any such cause or suit or action given or accrued, beyond
the seas, then such person or persons who shall be entitled
to any such suit or action shall be at liberty to bring the
said actions against such person or persons after their re-
turn from beyond the seas, so as they take the same after
their return from beyond the seas within such times as are
respectively limited for the bringing of the said actions by
the said Act made in the 21 Jac. I.” The 4th section of
the 3 & 4 Wm. IV. c. 42, contains a similar provision with
respect to actions on specialties accruing against persons
beyond the seas.

With reference to the expression “ beyond the seas” used
in the above statutes, the 3 & 4 Wm. IV. c. 42, s. 7, enacts
“that no part of the United Kingdom of Great Britain and
Treland, nor of the Islands of Man, Guernsey, Jersey, Al-
derney, and Sark, nor any islands adjacent to any of them,
being part of the dominions of his Majesty, shall be deemed
to be beyond the seas within the meaning of this Act, or the
Act passed in the twenty-first year of the reign of King
James the First, intituled “ An Act for Limitation of Ac-
tions and for Avoiding of Suits in Law.” And by the
Mercantile Law Amendment Act, 1856, (above cited) s. 12,
the same definition is enacted respecting the expression
“beyond the seas” as used in the above statute of Anne
and that Act (a). :

Under the above statute of Anne, s. 19, it was held that,

(a) See Lane y. Bennett, 1M. & W. 70.
When the
Statutes of
Limitation
begin to
run,

526 CHAP. IV. THE DISCHARGE OF CONTRACTS.

if one of several joint debtors was beyond seas at the time of
the accrual of the cause of action, the Statutes of Limitation
did not begin to run until his return, though the others
remained within the jurisdiction(«). But by the Mercantile
Law Amendment Act, 1856, 19 & 20 Vict. s. 11, itis enacted,
with respect to the causes of action which are subject to
the limitations of the above enactments, to the effect that,
in the case of joint debtors, the statute shall operate as
to such as are not beyond the seas, but shall not operate
as to such as are beyond the seas; and, in order to pre-
vent the remedy of the creditor against a debtor who is be-
yond the seas being barred by a judgment against a joint
debtor who is not beyond the seas, it is provided to the
effect that he shall not be barred from suing the joint
debtor who was beyond seas at the time the cause of action
accrued, after his return, by reason only that judgment was
already recovered against a joint debtor who was not be-
yond seas at the time aforesaid.

The exception from the operation of the Statutes of Limi-
tion by reason of the disabilities above mentioned is con-
fined to the cases in which the disability exists at the time
the cause of action first accrues; where the statute has once
begun to operate upon a right of action no subsequently
supervening disability will suspend its operation (b). So,
it is no answer to a plea of the Statute of Limitation that
after the statute had begun to run, the debtor within the
six years died, and that an executor of his will was not
appointed until after the expiration of six years, and that
the action was commenced within a reasonable time after
probate was granted to the defendant (c) ; nor is there any
relief in equity under such circumstances (d).

The Statutes of Limitation begin to run from the time
when the cause of action first accrues and the action might
be commenced, subject to the above provisions in the sta-

(a) Fannin vy. Anderson, 7 Q, B.811. (c) Rhodes v. Smethurst, 4M. &
(b) Rhodes vy. Smethurst, 6M. & W. 42; 6M. & W. 351.
W. 351; Homfray v. Scroope, 13 Q. (@) Freake v. Cranefeldt, 3 My. &
B. 509, 512. Cr, 499,
SECT. XI. STATUTES OF LIMITATION. 527

tutes respecting disabilities. This time is fixed, in the case
of actions founded upon contracts, by the breach of the
contract which creates the cause of action.

In the case of a single bond the cause of action is com-
plete from the time of execution, and the action must be
brought within twenty years from that date but not after.
In the case of a bond subject to a condition the cause of
action accrues when the condition is first broken, and the
statute does not begin to run until that date (a) ; and where
there are several conditions in a bond, or several covenants
in the same instrument to do various things, every distinct
breach gives a new cause of action, against which the sta-
tute begins to run from the date of the breach on which it
is founded (b). In the case of a simple contract to pay a
sum of money by instalments, and upon default in pay-
ment of one instalment the whole to become due as if all
the periods had expired, it was held that upon the first de-
fault a cause of action accrued for all that then remained
due of the whole debt, and that after six years from that
date no action could be brought for any part of the debt (c).

Upon a bill of exchange or other mercantile instrument
of that kind, the cause of action accrues when the instrument
is due and unpaid; and the statute, in general, runs from
that time. A promissory note payable on demand being a
present debt due and payable at once without demand, the
Statute of Limitation runs from the date of the note (cd);
but where a promissory note payable on demand was given
as a security for future advances upon a banking account, it
was held that the statute did not begin to run until the ac-
count was closed and the credit determined (e). The holder
of a bill of exchange upon default in acceptance acquires an
immediate right of action against the drawer, and does not
acquire a fresh right of action on the non-payment of the bill
when due; the Statute of Limitation, therefore, begins to
run against him from the former, and not from the latter

(a) Sanders v. Coward, 15M. & W. (ce) Hemp v. Garland, 4Q. B. 519.
48; Tuckey v. Hawkins, 4 C. B. 655. (d) Norton v. Ellam, 2M. & W.
(b) Sanders v. Coward, 15 M. & 461; see ante, p. 337.
W. 48; Blair v. Ormond, 17 Q. B. (e) Hartland v. Jukes, 1H. & C:

423, 438; 20 L. J. Q. B. 444, 453. 667; 32 L. J. Ex. 162.
Where
cause of ac-
tion un-
known.

528 CHAP. 1V. THE DISCHARGE OF CONTRACTS.

period (a). A bill drawn payable at, or after, sight must be
presented before a cause of action can arise, and the statute
does not begin to run until the bill has been presented and
become due (0).

In the case of debts arising from contracts giving a fixed
period of credit, the statute begins to run against an action
for the debt from the time when the credit expires and the
money is to be repaid, but not before (c). On a sale of
goods, if credit is given for a certain time and payment to
be then made by a bill at a further interval of time, a right
of action for the price of the goods sold and delivered first
accrues at the time appointed for the maturity of the bill,
and an action may be brought within six years from that
time (d). Where an indefinite credit is given, which the cre-
ditor may put an end to at any time by demand of payment,
or by commencing an action, the statute begins to run from
the time the debt is first due and an action might be
brought, although the debtor is not in default so long as
the credit is continued, and may discharge himself by ten-
dering payment at any time before it is demanded (e).

The Statute of Limitation runs against the claim, not-
withstanding that the creditor was not aware of the accrual
of his right of action (/). Where an attorney was sued for a
breach of his undertaking to search at the Bank of England
to ascertain whether stock was standing in a certain name,
and the omission to search took place more than six years
before the action, but was not discovered by the plaintiff until
within six years, it was held that the action was barred by
a plea of the Statute of Limitation (g). So, in the case of
a right of action accruing against a debtor who is resident
abroad, the statute begins to run from the date of his re-
turn into England, although the creditor may not be aware

(a) Whitehead vy. Walker, 9 M. &

. 506.

(b) Holmes v. Kerrison, 2 Taunt.
323; Thorpe v. Coombe, 8 D. & R.
347; Dixon v. Nuttall, 1C. M. & R.
307.

(c) See ante, p. 833; Wittersheim
v. Lady Carlisle, 1 H. Bl. 631 ; Helps
v. Winterbottom, 2 B, & Ad. 431..

(d) Helps v. Winterbottom, supra.

(e) See ante, p. 454.

(f) Short v. M‘Carthy, 3B. & Ald.
626; and see Brown vy, Howard, 2 B.
& B.73; Granger v. George, 5 B. &
C. 149.

(9g) Shortv. M‘Carthy, 3B. & Ald.
626; and see Howell vy. Young, 5 B.
& OC. 259.
SECT. XI. STATUTES OF LIMITATION. 529

of his return (a), Where a debtor renewed his liability by a
promise to pay when he was able, it was held that the sta-
tute began to run against the new promise from the time
when the debtor first became able to fulfil it, although the
creditor was ignorant of that fact (0).

So, the statute runs, although the cause of action is fraudu- Where
lently concealed from the creditor by the debtor (c). Such a
fraudulent concealment will not support a replication upon duently |
equitable grounds to a plea of the statute (d). But a Court
of Equity may give relief on the ground of the fraud, and the
lapse of time, as a bar to such relief, will run only from the
discovery of the fraud (e).

The statute runs from the time the breach of contract is Where spe-
complete and gives a right of action, although special damage Gialdarege
caused by such breach of contract may occur subsequently, sequently.
and the plaintiff, at the time of the accrual of the cause of
action, may not be fully aware of the damage consequent
upon it (f).

When the statute has once begun to run, it continues to
run, and is not stopped by any supervening disability, or
other circumstance preventing the creditor from bringing an

action (q).

The Statutes of Limitation discharge the right of action Effect of
by affording an absolute bar to an action brought beyond the Bias
the time prescribed by the statutes. The defence of the Limitation.
Statutes of Limitation must be specially pleaded; and the
defendant cannot avail himself of it without a plea, although
it may appear upon the record, or upon the evidence of the
plaintiff, that the action was brought beyond the prescribed

limit of time (h). The Statutes of Limitation do not affect

(a) Gregory v. Hurrill,5 B.& C. 161.5. C. 105. As to the accrual of
Al, the right to bring a suit in equity for
(b) Waters v. Earl of Thanet,2Q. the recovery of any land or rent of
B. 757. which a person may have been de-
(c) Clark v. Hougham, 2 B.& C.  prived bya concealed fraud, see 3 & 4
149; Imperial Gas Co. v. London Ww. IV.c. 27,8. 36.

3

Gas Co., 10 Ex. 39; 23 L. J. Ex. (f) Battley v. Faulkner, 3 B. &
303. Ald. 288 ; and see Violett v. Sympson,
(d) Hunter v. Gibbons, 1H. & N. SE. & B. 344; 27 L. J. Q. B. 138.

459; 26 L. J. Ex. 1. (g) See ante, p. 526.
(e) Blair v. Bromley, 5 Hare, 542 ; (h 2 Wms. Saund. 63 a.

2
Effect in
Equity.

530 CHAP. IV. THE DISCHARGE OF CONTRACTS.

any pledge or lien upon property which the creditor may
hold as security for the debt, or for the due performance of
the contract (a).

Courts of Equity have no jurisdiction to relieve against
the operation of the Statutes of Limitation upon legal
claims (6). The Statutes of Limitation, in general, do not
apply to equitable claims, as trusts and claims for account ;
though Courts of Equity act sometimes by analogy to the
Statutes of Limitation in refusing to entertain equitable
claims on the ground of lapse of time and acquiescence (c).
Thus, money deposited with a banker constitutes in lawa
loan to the banker, which cannot be recovered after six years
without some renewal of liability (¢); but in equity the
banker would be held to remain a trustee of the amount for
the depositor (e). A devise or charge of real estate for the
payment of debts creates a trust for the benefit of the cre-
ditors against which the statute does not operate (f) ; but
such devise or charge will not revive a debt previously
barred, unless such debt is particularly directed to be paid (g).
A general direction in a will of personal estate to pay debts
does not prevent the operation of the statute (h).

After an adjudication of bankruptcy against a debtor, the
effect of which is to transfer all his estate in trust for his
creditors, the Statutes of Limitation do not operate upon
the right of creditors to prove their debts; they may prove
at any time after adjudication, unless the right to recover
debts was barred before adjudication (7).

A legacy left by the creditor to the debtor may be set-off
by his executor against a debt barred by the Statute of Limi-
tation (j ). :

(a) Higgins v. Scott, 2 B. & Ad.
413; Seager v. Aston, 26 L. J. C.
809.

(b) Hovendenv. Annesley, 2 Sch. &
Lef. 607, 630; Story, Eq. Jur. § 1520;
Hunter vy. Gibbons, 1 H. & N. 459;
26 J. J. Ex.1; cited ante, p.

(e) Story, Eq, Jur. §§ 1520, 15204; ;
Stackhouse vy. Barnston, 10 Ves. 453,
466 ; Smith v. Pococke, 2 Drew. 197;
23 L. J.C. 545.

(d) Potty. Clegg, 16 M. & W. 321.

(e) Hollis’s case, 2 Vent. 345.
(f) Hargreaves v. Michell, 6 Mad.
326

(9) Burke v. Jones, 2 Ves. & B.
275; and see Williamson v. Naylor,
3 Y. & C. Ex. 208, 210 (a).

(2) Freake v. Cranefeldt, 3 My. &
Cr. 499 ; Evans v. Tweedy, 1 Beav. 55.

(2) Ex. p. Ross, 2Glyn & Jam. 46.

(7) Courtenay v. William, 3 Hare,
539; Coates v. Coates, 33 Beay. 249 ;
33 L. J.C, 448,
SECT. XI. STATUTES OF LIMITATION. 581

The liability for a debt may be renewed by the debtor so Renewal of
as to take it out of the operation of the Statutes of Limi- s™ple con.
tation. —by pro- :

In the case of simple contract debts within the Statute of acknow-
James, the liability may be renewed by an express acknow- ledement.
ledgment or promise to pay the debt; and before Lord
Tenterden’s Act, 9 Geo. IV. c. 14, a mere verbal acknow-
ledgment or promise, without writing, was sufficient for that
purpose. By that Act, s.1, it was enacted, “that in ac-
tions of debt, or upon the case, grounded upon any simple
contract, no acknowledgment or promise by words only
shall be sufficient evidence of a new or continuing contract,
whereby to take any case out of the operation of the Statutes
of Limitation, unless such acknowledgment or promise shall
be made in some writing to be signed by the party charge-
able thereby.”

The effect of Lord Tenterden’s Act has been explained as
follows :—‘‘ That statute did not intend to make any altera-
tion in the legal construction to be put upon acknowledg-
ments or promises made by defendants, but merely to re-
quire a different mode of proof; substituting the certain evi-
dence of a writing, signed by the party chargeable, instead
of the insecure and precarious testimony to be derived from
the memory of witnesses. To inquire, therefore, whether in
a given case the written document amounts to an acknow-
ledgment or promise is no other inquiry than whether the
same words, if proved before the statute to have been spoken
by the defendant, would have had a similar operation and
effect ” (a).

Soon after the passing of the Statute of James the Courts
held that any admission by the debtor that the debt was un-
paid prevented the operation of the statute, and renewed his
liability from the date of the admission ; so that such an ad-
mission, even when accompanied by a repudiation of hability,
orarefusal to pay, or a denial of the debt, was held sufficient
to defeat the statute (b). Modern decisions have considerably

(a) Per Tindal, C.J., Haydon vy. 16 East, 420 ; Hyleing v. Hastings, 1
Williams, 7 Bing. 163, 166. L. Raym. 389; per Gibbs, O.J., Hel-

(b) Per Buller, J., Lloyd v. Maund, lings v. Shaw, 7 Taunt. 608, 612;
2 'T. RB. 760, 762; Leaper v. Tatton, Beale v. Nind, 4 B. & Ald. 568.

2m 2
Renewal of

simple con-
tract debt
by promise
to pay.

532 CHAP. IV. THE DISCHARGE OF CONTRACTS.

modified the older ones ; and it is now settled that an admis-
sion by the debtor of the debt remaining unpaid is not suffi-
cient to renew the liability of the debtor, unless it is accom-
panied with a promise to pay it, or unless it is so unequivocal
and unreserved that a promise can be implied therefrom (a).
A promise to pay the debt is necessary in all cases in order
to take the debt out of the statute and to revive the liability ;
but such a promise may in some cases be implied from a
simple and absolute acknowledgment of liability (2).

The case of Tanner v. Smart may be considered as the
leading case on this point ; in which Lord Tenterden, C.J.,
in delivering the judgment of the court, said :—“‘ There are,
undoubtedly, authorities that the statute is founded on the
presumption of payment, that whatever repels that presump-
tion is an answer to the statute, and that any acknowledg-
ment which repels that presumption is, in legal effect, a
promise to pay the debt; and that, though such an acknow-
ledgment is accompanied with only a conditional promise or
even a refusal to pay, the law considers the condition or
refusal void, and considers the acknowledgwent of itself an
unconditional answer to the statute ;” the judgment went
on to decide that a new promise to pay is essential to defeat
the operation of the statute, and explained the proper effect
to be given to a mere acknowledgment thus :—‘‘ Upon a
general acknowledgment, where nothing is said to prevent
it, a general promise to pay may, and ought to be implied;
but where the party guards his acknowledgment, and accom-
panies it with an express declaration to prevent any such
implication, the rule, erpresswm facit cessare tacitum, ap-
plies” (c). In that case the acknowledgment proved was
in the terms, “‘I cannot pay the debt at present, but I will
pay it as soon as I can,” and it was held not to be sufficient
to take the case out of the statute, without proof of the de-
fendant’s ability to pay (d). The principles laid down in the
case of Tanner v. Smart have been adopted in all subse-

(a) Per Parke, B., Morrell v. Frith, dergast, 14 M. & W.741, 746.
3M. & W. 402, 405; per Parke, B., (ec) Tanner vy. Smart, 6 B. & C.
Williams v. Griffith, 3 Vix. 335, 342. 603, 604.

(4) Per Rolfe, B., Hart v. Pren- (d) Tanner vy. Smart, supra.
SECT. XI. STATUTES OF LIMITATION. 533

quent decisions; and the previous decisions inconsistent Renewal of

: ; le con-
with them are now considered as overruled (a). tact debt
As the law is now settled for simple contract debts, that PY er

the acknowledgment, in order to prevent the operation of
the statute, must be such that a promise to pay may be im-
plied from it, it is necessary that the acknowledgment be
made to the creditor himself as promisee, and not to a third
person, for an acknowledgment to a third person, in gene-
ral, would not import a promise to the creditor (b). It
seems that an acknowledgment made to a person benefi-
cially entitled to the debt, would not be effectual to renew
the debt vested in the nominal creditor as trustee, unless
made to that person as agent for such trustee (¢).

Under the above section of Lord Tenterden’s Act requir-
ing the acknowledgment to be signed by the party charge-
able therewith, an acknowledgment signed by an agent of
the debtor was held sufficient (d). But by the Mercantile
Law Amendment Act, 1856, (19 & 20 Vict. ¢. 97,) s. 18, it
is enacted, in reference to the above section of Lord Tenter-
den’s Act, that ‘(an acknowledgment or promise made or
contained by or in a writing signed by an agent of the party
chargeable thereby, duly authorised to make such acknow-
ment or promise, shall have the same effect as if such writ-
ing had been signed by such party himself.”

It is not necessary that the precise amount of the debt or
balance remaining due should be stated in the acknowledg-
ment or promise; the particular debt admitted and the
amount may be ascertained by extrinsic evidence (e). Thus,

(a) Per Parke, B., Hart v. Pren-
dergast, 14 M. & W. 741, 745; per
Tindal, C.J., Linsell v. Bonsor, 2
Bing. N. C, 241, 244; Hverett v.
Robertson, 1 KE. & E. 16; 28 L. J.
Q. B. 23; Leev. Wilmot, 35 L. J. Ex.
175; L. R. 1 Ex. 364.

(b) Tanner v. Smart, 6 B. & C.

603; Grenfell v. Girdlestone, 2 Y. &
C. Ex. 662 ; Howcutt v. Bonser, 3 Ex.
491, 500; Goodwin v. Culley, 4 H.
& N. 373, 380. The decisions to the
effect that an acknowledgment to a
third party is sufficient (Mountste-
phen v. Brooke, 3 B. & Ald. 141;

Clark v. Hougham, 2 B. & C. 149)
were prior to the case of Tanner v.
Smart. See the acknowledgment of
specialty debts, post, p. 543.

(c) See Parmiter v. Parmiter, 1 J.
& H. 135; 30 L. J. C. 508.

(d) Hyde v. Johnson, 2 Bing. N. C.
776

(e) Lechmere v. Fleteher,1C.& M.
623 ; Spong v. Wright, 9 M. & W.
629, 683; Gardner v. M‘ Mahon, 3
Q. B. 561; Williams v. Griffith, 3
Ex. 335, 343; Howeutt v. Bonser,
3 Ex. 491, 496; Waller vy. Lacy, 1
M. & G. 54.
534 CHAP. IV. THE DISCHARGE OF CONTRACTS.

Renowal of an acknowledgment of “a balance,” or of a “bill,” being

simple con- : : : :
tract debt Cue is sufficient (a). An acknowledgment or promise which
by a amounts to a promissory note is not admissible in evidence

to take the debt out of the statute unless duly stamped (D).

The construction of a written document, as containing an
acknowledgment or promise sufficient to renew the liability,
is a question of law for the court, and not a question to be
submitted to the jury (c).

It has been held that an acknowledgment of the debt,
accompanied by an expression merely of hope or expectation
of being able to pay it, sufficiently excludes the inference of
a promise, and does not take the debt out of the operation
of the statute (d).

A letter from the alleged debtor to the creditor requesting
him to send in any bill or demand against him, and saying
that, “if just,” he would pay it, was held not to be a suffi-
cient acknowledgment of a debt to take it out of the sta-
tute (ec). A letter written by the debtor acknowledging the
receipt of a bill sent and containing a promise to pay it, ‘if
correct,” was held sufficient to take the debt out of the
statute (jf).

Conditional
and limited
promise or
acknow-
ledgment.

The liability of the debtor may be renewed upon a condi-
tion, or to a limited extent, by an acknowledgment or pro-
mise made to that effect, which operates according to its
terms (g). A promise by the debtor to pay the debt, as soon
as he is able, renews the debt conditionally upon his becom-
ing able to pay it ; and upon that condition being satisfied
the promise becomes absolute (h). A promise by a debtor,

(a) Dickinson v. Hatfield, 1 Moo.
& R.141; Waller v. Lacy, 1 M. &
G. 54.

(0) Parmiter v. Parmiter, 13. & H.
135; 30 L. J. C. 508.

(c) Morrell v. Frith, 3 M. & W.
402; dissenting from Lloyd v. Maund,
2T. R. 760; and see Bird v. Gammon,
3 Bing. N.C. 883.

(d) Hart v. Prendergast, 14M. &
W. 741; Smith v. Thorne, 18 Q. B.
134; Rackham v. Marriott, 1 H. &
N. 234; 2 H. & N. 196; 25 L. J.
Ex. 324; 26 ib. 315; diéssentiente
Bramwell, B., see Sidwell vy. Mason,

2 7. & N. 306, 310; 26 L. J. Ex.
407, 409.

(e) Spong v. Wright, 9 M. & W.
629.

(f) Sidwel? v. Mason, 2 H. & N.
306; 26 L. J. Ex. 407.

(9) Hyleing v. Hastings, 1 L.
Raym. 389; Tanner v. Smart, 6 B.
& C. 603; Haydon v. Williams, 7
Bing. 163 ; Lechmere vy. Fletcher, 1
C. & M. 623.

(h) Lanner vy. Smart, 6 B. & C.
603 ; Haydon v. Williams, 7 Bing.
163; Waters v. Earl of Thanet, 2
Q. B. 757.
SECT. XI. STATUTES OF LIMITATION. 535

who is jointly liable with others, to pay his proportion of
the debt renews his liability to the extent of his proportion
only (a).

A proposal made to pay a debt in a particular manner, as
by setting it off against a debt due to the debtor, is an ac-
knowledgment of the debt for the purpose of that proposal
only and does not defeat the statute, and, if not acceded to,
is not binding (b). So, an acknowledgment of a debt con-
tained in an offer to pay it by annual instalments, which was
not accepted by the creditor, was held not sufficient to de-
feat the statute (c).

A petition to the Court of Bankruptcy by a debtor stat-
ing that he is unable to pay his debts in full and proposing
to assign all his estate to be distributed amongst his creditors
in full satisfaction of his debts, is not an acknowledgment of
the debts set out in the schedule to his petition sufficient to
take such debts out of the operation of the statute, because
it is restricted to the purpose for which it is made (d). So,
the insertion of a debt in the schedule to a deed of inspector-
ship executed for the purpose of administering the estate of
the debtor, although the schedule be verified by the affidavit
of the debtor, is not a sufficient acknowledgment to take the
debt out of the operation of the statute (¢). The defendant
and another had given to the plaintiff a joint and several
promissory note, and, the other joint maker having made an
assignment for the benefit of his creditors, the defendant
signed and sent a letter to the plaintiff, im which he con-
sented to the plaintiff receiving a dividend under such as-
signment, and agreed that his so doing should not prejudice
his claim against the defendant for the same debt ; it was
held that the effect of the letter was limited to the object
for which it was intended, and did not operate as an acknow-
ledgment to take the debt out of the operation of the Statute
of Limitation (f/f).

(a) Lechmere v. Fletcher,1C.&M. N.S. 745.

623. (d) Everett v. Robertson, 1 BE. & E.
(b) Goate v. Goate, 1H. & N.29; 16; 28 L. J. Q. B. 23.

Francis v. Hawkesley, 1 H. & HE. 1052 ; (ec) Ex p. Topping, 34 L. J.B. 44.

28 L. J. Q. B. 370. (f) Cockrillv. Sparkes, 1 H.& C.

(c) Buckmaster y. Russell, 10 C.B. 699; 32 L. J. Hx. 115,
Renewal of
liability by
part pay-
ment,

536 CHAP. IV. THE DISCHARGE OF CONTRACTS.

It is said that, in construing a written acknowledgment
as conditional, there must be taken into consideration the
difference between such an acknowledgment made before
the debt is barred by the statute, and one made after it has
been so barred. In the latter case the debtor is in a posi-
tion to couple any promise he makes with a condition; in
the former case, having no right to impose terms of any
kind, he cannot be supposed to have had any intention of
imposing a condition, and the reasonable construction of
his acknowledgment is that it is not conditional (a). Where
an action is brought upon the original liability within the
six years of its accruing due, a conditional promise to pay
the debt may operate as an admission of the debt suffi-
cient to support the action; “for a promise to pay, whe-
ther absolute or conditional, does necessarily include an
acknowledgment of the debt; and where the defendant is
charged on his own original liability he cannot limit the
effect of any acknowledgment which he makes by adding
to it any new condition. But where the action is brought
after six years, and the subsequent acknowledgment of
the defendant is the very ground of his action, the plain-
tiff must take it altogether as he finds it, and cannot
use the acknowledgment without annexing the qualification
also”? (0).

A debtor may also renew his liability, so as to take his
debt out of the operation of the Statute of Limitation, by a
part payment of it, or by a payment of interest due upon it.

Lord Tenterden’s Act (9 Geo. IV. c. 14, s. 1) does not
affect the evidence of this mode of reviving the liability, for
after enacting, as above, that no acknowledgment by words
only shall be sufficient evidence of a new contract, unless
made in some writing to be signed by the party chargeable,
it proceeds to provide expressly, “that nothing herein con-
tained shall alter, or take away, or lessen, the effect of any
payment of any principal, or interest, made by any person.”
It was at first decided, under this statute, that payment of

(a) See Cornforth v. Smithard, (b) Haydon \. Williams, 7 Bing.
5H. & N.18; 29 L. J. Ex. 228, 3, 168.

»
SECT. XI. STATUTES OF LIMITATION. 537

a debt or interest, when proved by a verbal admission of
the debtor, was an acknowledgment by words only within
the enactment, and required to be made in some writing
signed by the debtor (a). But this decision was subse-
quently overruled, and it is now held that an admission by
the debtor of part payment, or payment of interest, is not
within the enactment, and may be proved by words only
without writing (0).

The payment, in order to operate as a renewal of liability,
must be made on account of the debt in question, and must
be made as part payment of a greater sum due in respect of
that debt; it must amount, in fact, to an admission that a
larger sum is then due in respect of the debt in question,
so that from such admission a promise to pay the balance
remaining due may be implied (c). Part payment of a ba-
lance of account may be sufficient to take the account out
of the operation of the Statute of Limitation, though no
precise sum is then stated and agreed upon by the parties
as the balance then due (d).

The acknowledgment which is founded upon the part pay-
ment, like an acknowledgment by words only, must not be
qualified by any circumstances or exceptions which might
obviate the inference of a promise of the debtor to pay the
residue of the debt. The mere fact of part payment does
not necessarily take the case out of the statute ; but the cir-
cumstances must be such as to warrant the jury in inferring
a promise to pay, and must be laid before the jury for that
purpose (ce). Where the debtor clearly intends by his pay-
ment to pay the whole debt in full, his paynient cannot be
construed into an acknowledgment of a larger sum being
due and a promise to pay it (f).

The payment of a dividend by the assignee of an insol-
vent under an order of the Insolvent Court is not sufficient
to take the case out of the Statute of Limitation, either

(a) Willis v. Newham, 3 Y. & J. (d) Walker v. Butler, 6 E. & B.
518; Waters v. Tompkins, 2C.M.& 506; 25 1. J. Q. B. 377.

723, 725. (e) Wainman v. Kynman, 1 Ex.
ry Cleave v. Jones, 6 Eix. 573. 118, 121.
(c) Tippets v. Heane,1C.M.& R. (f) Foster vy. Dawber, 6 Ex. 839,
252; Watersv. Tompkins, 2C.M.& Zi 853.
723; Waugh v. Cope, 6 M.& W. 82:
Transac-

tions equi-

valent to
payment.

538 CHAP. IV. THE DISCHARGE OF CONTRACTS.

as against the other makers of the note, or as against
the insolvent himself (a). So, the payment of a dividend,
under a deed executed for the purpose of administering the
debtor’s estate amongst his creditors, is not a sufficient
part payment to take the debt out of the operation of the
statute (d).

Whatever is accepted by agreement in reduction of the
debt, as equivalent to payment, is sufficient to take the debt
out of the operation of the Statute of Limitation; as, a
delivery and acceptance of goods in part payment of the
debt (c). A mere agreement to deliver goods in payment
without an actual delivery and acceptance, being only an
accord without satisfaction, is not equivalent to payment (d).

The giving of a bill or note in satisfaction or on account
of a larger debt will operate as an acknowledgment by way
of part payment so as to revive the debt; and the revived
right of action dates from the delivery of the bill or note,
and not from its maturity, and whether it be subsequently
honoured or not (e).

Payment by allowance of a set-off in account is sufficient
to renew the liability for the balance of the debt above the
set-off. Where an account settled between two parties con-
tained an item on one side of interest on a promissory note,
it was held the payment of interest thus made was sufficient

- to renew the liability on the note (f). So, where in accounts

between two parties the interest payable on certain debts on
one side was balanced from time to time against rents and
tithes payable on the other, it was held that the debts upon
which the interest was so paid were taken out of the opera-
tion of the statute (g). Where an account is stated respect-
ing items on both sides, which it is agreed shall be set off
against each other so as to leave the balance only due and
payable, and some of the earlier items stated in the account

(a) Davies v. Edwards, '7 Fix. 22. 507; Irving v. Veitch, 3 M. & W. 90,

(6) Ex p. Topping, 34 L. J. B. 44. 98; Turney v. Dodwell, 3 E. & B.

(c) Hart v. Nash, 2C.M. & RB. 186; 23 L. J. Q. B. 137; see ante,
337; Hooper v. Slephens,4.A.& HE.  p. 476.

71; see “ Payment,” ante, p. 474. (f) Scholey v. Walton, 12 M.& W.
(d) Reeves vy. Hearne, 1 M. & W. 10.
323; see ante, p. 468. (9) Worthington vy. Grimsditch,7 Q.

(e) Gowan y. Forster, 3 BL & Ad. B. 479.
SECT. XI. STATUTES OF LIMITATION. 539

are more than six years old, they are nevertheless effectually
paid by the items set against them and the balance remains
unaffected by the Statute of Limitation (a). But a mere
open account between two parties, without any agreement
that the items on the one side shall be considered as pay-
ment for the items on the other, will not prevent the ope-
ration of the statute against the items entered in the ac-
count (6).

An agreement between the creditor and the debtor, that
the former should retain towards payment of his debt a
weekly sum payable by him to the debtor for board and
lodging, was held to be equivalent to payment in acknow-
ledgment of the debt (c). An agreement that the expenses
of the maintenance of the creditor’s child by the debtor
should go towards the interest of a promissory note of the
debtor was held to be equivalent to payment of the interest,
so as to take the note out of the statute (d). Trustees lent
money, settled to the separate use of a wife, to her husband,
and by agreement of all parties the wife gave receipts to the
trustees for the interest; although no money passed, this
was held to amount to payment of the interest sufficient to
revive the liability of the husband (¢).

Payment of interest on a debt, in general, amounts to an Renewalof
acknowledgment that the debt is due, and takes the debt ete a of
out of the operation of the statute (f). Payment of the prin- mterest.
cipal does not take the case out of the statute, as regards
the claim for interest; payment of the principal being no
acknowledgment that the interest is owing, nor raising any
implied promise to pay it (7). Payment of interest on a
debt keeps alive all the securities held by the creditor for
the same debt (h).

Where a debtor, owing several debts to the same creditor, Effect of

makes a payment generally, without expressly appropriating Seem

(a) Ashby v. James, 11M. & W. 241. J. Ex. 19.
542; Clark v. Alexander, 8 Scott, (e) Amos v. Smith, 1 H. & C. 238 ;
N. R. 147; see ante, p. 70. 31 L. J. Ex. 423.

(0) F illiams v. Griffiths, 2. C.M. & (f) Bamfield v. Tupper, 7 Ex. 27 ;
R. 45; Cottam vy. Partridge, 4M.& Bealy v. Greenslade, 2 C. & J.61;

Ga. 271. see Sims v. Brutton, 5 Hx. 802.
(ce) Blair v. Ormond, 17 Q. B. 423 ; (g) Collyer v. Willock, 4 Bing. 313.
20 L. J. Q. B. 444. (h) Dowling v. Ford, 11 M. & W.

(@) Bodger vy. Arch, 10 Ex. 338; 320.
by debtor
owing seve-
ral debts.

Payment

by agent.

540 CHAP. IV. THE DISCHARGE OF CONTRACTS.

it to any one debt, the effect of the payment, as an acknow-
ledgment of any or all of the debts, depends upon the special
circumstances of the payment, from which the intention of
the debtor is to be gathered (a).

Under such circumstances, it is a general rule that the
creditor may appropriate the payment to any of the debts ;
and he may appropriate it to a debt already barred by the
Statute of Limitation (b). But the appropriation of the
payment to a particular debt by the creditor alone, without
the knowledge and consent of the debtor, does not operate
as an acknowledgment of that debt by the debtor, and does
not furnish any ground for implying on his part a new pro-
mise to pay the remainder of it (c).

The plaintiff claimed two debts of the defendant, one of
which the defendant denied altogether, and the other he
admitted, but relied on the statute as a bar; it was held
that, there being only one debt admitted by the defendant,
there was evidence that payments made by him, though not
expressly appropriated, were made on account of the debt
admitted, so as to take it out of the operation of the sta-
tute (d). A payment was made on account of interest gene-
rally, without appropriation to an particular debt, there
being at the time three debts due, two of which were barred
by the statute ; it was held that the effect of the payment
of interest was, at least, to revive the third debt, for it must
have been made either on account of all the debts, or on ac-
count of the debt not barred (e).

Part payment or payment of interest, made by an agent
duly authorized to make the payment, is a sufficient acknow-
ledgment to revive the debt (f). Where a wife, without
the privity of her husband, made a payment of interest on a
promissory note made by her before marriage, it was held
that such payment did not take the note out of the statute
either against the wife or the husband, because the wife as

(a) See Walker v. Butler,6 HE. & 25 L. J. C. 186.

B. 506, 510; 25 L. J. Q. B. 377, 378. (d) Burn v. Boulton, 2 C. B. 476.

(b) Ante, p. 495; Mills v. Fowkes, (c) Nash v. Hodgson, 6 De G. M.
5 Bing. N. C. 455; Williams v. & G. 474; 25 L. J. C. 186; ante,
Griffith, 5 M. & W. 300. p. 496.

(ec) Mills v. Fowkes, supra; Nash (f) Rew v. Pettet, 1 A. & EB. 196;
v. Hodgson,6 De G. M. & G. 474; Jones v. Hughes, 5 Ex. 104.
SECT. XI. STATUTES OF LIMITATION. 54)

@ married woman was incompetent to renew her liability,

and the husband was not affected by the payment made by

the wife without his authority (a). In the case of a mort-

gage debt secured by a covenant in the mortgage deed, it

was held that payment of interest to the mortgagee by the
assignee of the equity of redemption was sufficient to take

the mortgage debt out of the statute as against the mort-

gagor (b). An acknowledgment by payment of part of the Paymentto
debt, or of interest, may be inferred from a payment to an ae
agent authorized to receive the money (c).

The renewal of the liability to pay a simple contract debt Renewal of
is considered as a new cause of action, dating from the time f7P's er
of the renewal (d). If the renewal is conditional, the new givesa new

f ‘ pee : cause of ac-
cause of action is not complete until the condition is sa- tion.
tisfied. It is usual to frame the declaration upon the ori-
ginal debt, leaving the renewal and the satisfaction of the
condition, if any, to be proved in evidence; but the new
promise may be stated in the declaration conditionally ac-
cording to its terms, with averments of the satisfaction of
the condition, and of all matters of fact necessary to show
that the debt is revived absolutely (e). The issue taken on
the plea of the statute, that the cause of action accrued
within six years before the commencement of the suit, is
maintained in the affirmative by proof of the lability being
absolutely renewed within that time (/).

As the renewal of liability is, in effect, a new cause of
action, it must be complete before the action is brought. A
renewal of a debt barred by the statute by acknowledgment,
or part payment, made after an action is commenced to re-
cover the debt, is not sufficient to defeat the operation of
the statute against that action ; for it will not support the
issue taken on the plea of the statute that the cause of

(a) Neve v. Hollands,18 Q.B.262; Foster, 1 B & C, 248, 250; Bateman

21 L. J. Q. B. 289. y. Pinder, 3 Q. B. 574.
(b) Forsyth v. Bristowe, 8 Ex. 347 ; (e) See Lechmere y. Fletcher, 1 C.
22 L. J, Ex. 255. & M. 628; Watersv. Earl of Thanet,
(c) Clark v. Hooper,10 Bing. 480; 2 Q. B. 757.
Megginson v. Harper, 2 C. & M. 322 ; (f) See Lanner v. Smart, 6B. &O.
Hart v. Stephens, 6 Q. B. 937. 603, 606; Ridd v. Moggridge, 2 H. &

(d) Per Abbott, C.J., Pittam v. N. 567.
542 CHAP, 1V. THE DISCHARGE OF CONTRACTS.

action accrued within six years before the commencement
of the suit (a).

Renewal The doctrine of a renewal of liability against the operation

appliesoaly of the Statute of Limitation, applies only to actual debts. “If
a man acknowledges the existence of a debt barred by the
statute, the law has been supposed to raise a new promise
to pay it, and thus the remedy is revived ; but no such effect
can be given to an acknowledgment, where the cause of
action arises from the doing, or omitting to do some act, at
a particular moment, in breach of a contract” (6). And it
seems that, in such case, an express promise to be respon-
sible for the previous breach of contract, unless made upon
a new consideration, could not be supported as a new cause
of action (c).

Renewal of Debts by specialty also may be renewed, against the ope-

apenley ration of the statute, by acknowledgment. The modes of
renewing simple contract debts rest upon judicial decisions,
though in some respects regulated by statute ; but the modes
of renewing debts by specialty are regulated entirely by sta-
tute. By the 3 & 4 Wm. IV. c. 42, 8.5, itis enacted, as a pro-
viso to the operative clause above cited (d), “that if any
acknowledgment shall have been made, either by writing
signed by the party liable by virtue of such indenture, spe-
cialty, or recognizance, or his agent, or by part payment or
part satisfaction on account of any principal or interest
being then due thereon, it shall and may be lawful for the
person or persons entitled to such actions to bring his or
their action for the money remaining unpaid and so acknow-
ledged to be due within twenty years after such acknow-
ledgment by writing or part payment or part satisfaction as
aforesaid ; — and the plaintiff or plaintiffs in any such ac-
tion on any indenture, specialty, or recognizance, may, by
way of replication, state such acknowledgment, and that
such action was brought within the time aforesaid, in answer
to a plea of this statute.”

my Bateman v. Pinder, 8 Q. B. (c) Short v. M‘Carthy, 3B. & Ald.
626 ; Whitehead v. Howard, 2B. &
fe Per Lord Ellenborough, C.J.,  B. 372.
Boydell v. Drummond, 2 Camp. 157, (d) Sect. 3; see ante, p. 521.
162.
SECT. XI. STATUTES OF LIMITATION. 543

The acknowledgment intended under this section is not
such an acknowledgement as is required for simple contracts,
which must import a promise to pay and create a new cause
of action ; but any acknowledgment of the existence of the
debt, whether it does or does not amount to a promise to
pay, is sufficient, and enables the creditor to bring his ac-
tion for the original debt, within twenty years after such
acknowledgment (a). And as it is not necessary that the
acknowledgment should be such as to import a promise to
pay the creditor, it seems that an acknowledgment made
to a third person would be sufficient to satisfy the purpose of
the statute and to revive a specialty debt ()).

Where the party originally liable, the debtor himself, is
dead, there may be three parties, each of whom is liable to
the claims of a specialty creditor,—the executor in respect
of the personalty, the trustees in respect of the real estate
devised for payment of debts, and the beneficial devisee in
respect of the real estate beneficially devised ; and upon the
language of the Act it has been decided that each of them
is a party liable within the meaning of the 5th section; and
that a payment or an acknowledgment by any one of them
is a payment by the party liable by virtue of the specialty,
and entitles the creditor to bring his action against all the
parties liable within twenty years after such acknowledg-
ment (c).

The renewal of liability under this section applies only to
money remaining unpaid and acknowledged to be due, and
not to liability for breaches of covenants, or of conditions of
bonds, not resulting in money debts (d).

With respect to acknowledgment and payment by one of Renewal by
several joint debtors, the law formerly was that acknow- (ne ofjoint
ledgment or payment by one revived the debt against all (e) ;

(a) Moodie v. Bannister, 4 Drew. Cresswell, L. Rep. 2 Eq. 106; 35 L.
432; 28 L. J. C. 881; ante, p. 532. J.C, 496.

(6) Moodie v. Bannister, supra ; (d) Blair v. Ormond, 17 Q. B. 423 ;
ante, p. 533; and see Howcutt v. 20 L. J. Q. B. 444; and see as to
Bonser, 5 Ex. 491, 500; Forsyth v. simple contracts, ante, p. 542.
Bristowe, 8 Ex. 347; 22 L. J. Ex. (e) Whitcomb v. Whiting, Doug.
255. 652; 1 Smith, L. C., 5th ed., 555;

(c) Per Kindersley, V.C., Coope v.  Perhain v. Raynal, 2 Bing. 306.
544 CHAP. IV. THE DISCHARGE OF CONTRACTS.

Renewal, and where several persons were jointly and severally liable

y one of

joint for the same debt, the acknowledgment or payment of one

debtors. revived not only the joint liability, but also the several lia-
bility of each (a).

Lord Tenterden’s Act, 9 Geo. IV. c. 14, s. 1, enacted
that “‘ where there shall be two or more joint contractors,
or executors, or administrators of any contractor, no such
joint contractor, executor, or administrator, shall lose the
benefit of the said enactments or either of them so as to be
chargeable in respect or by reason only of any written ac-
knowledgment or promise made and signed by any other
or others of them :—provided always, that nothing herein
contained shall alter or take away or lessen the effect of
any payment of any principal or interest made by any per-
son whatsoever.”

The effect of a payment in renewing the lability of a joint
debtor remaining unaltered by this enactment (l), by the
Mercantile Law Amendment Act, 1856, 19 & 20 Vict. c. 97,
s. 14, it was enacted, in reference to the provisions of
the Acts 21 Jac. I., c. 16, s. 8, and 3 & 4 Wm. IV., c. 42,
s. 3, that “when there shall be two or more co-contractors
or co-debtors, whether bound or hable jointly only or jointly
and severally, or executors or administrators of any con-
tractor, no such co-contractor or co-debtor, executor or admi-
nistrator, shall lose the benefit of the said enactments or any
of them, so as to be chargeable in respect or by reason
only of payment of any principal, interest, or other money,
by any other or others of such co-contractors or co-debtors,
executors or administrators” (c).

Capacityof As an infant may contract a debt for necessaries supplied
peice” to him during infancy, so he may, during infancy, renew his
liability for such debt and take it out of the operation of the

Statute of Limitation (d).
A married woman, being incapable of contracting, is in-
capable of making a new promise to renew her liability for

(a) Burleigh v. Stott, 8B.& C.36; OC. 699; 32 L. J. Ex. 118.

Goddard v. Ingram, 3 Q. B. 839. (d) Willins vy. Smith, 4 B. & B.
(6) Wyatt v. Hodson, 8 Bing. 309. 180; 8. C. nom. Williams v. Smith,
(c) See Cockrill v. Sparkes, 1H.& 241.5. Q. B. 62; ante, p. 232.
SECT. XII. SET-OFF. 545

a debt incurred by her before marriage; accordingly, an
acknowledgment of the debt made by a joint contractor
with her during the marriage was held not to renew the
joint debt (a). So, payment of interest by the wife during
the marriage, without the privity of her husband, was held
not to renew such debt as against the wife or against the
husband separately ; but it was said that such payment, if
made by the husband or with his authority, might support
the inference of a promise by him to pay the debt in con-
sideration of forbearance (0).

Cuap. IV. Secor. XII. Setr-Orr.

Right of Set-off......... ee. 545 | The Debts must be Mutual ... 550
Statutes of Set-off............... 545 | Set-off of Mutual Credits with
What Debts may be Set-off... 547 Bankrupt scsiccsisnesoorseses 553

By the common law if two persons were mutually indebted Right of
in distinct debts no right of set-off existed independently of °°"
agreement ; a set-off of the debts could be effected only by
special agreement made by the parties for that purpose. The

rule of equity followed the law, unless there was some pecu-

liar connection between the debts, beyond the mere fact they
were mutual, on which the relief could be founded (c), Ac-
cording to Lord Mansfield, “natural equity says, that cross
demands should compensate each other, by deducting the less

sum from the greater; and that the difference is the only sum
which can be justly due. But positive law, for the sake of

the forms of proceeding and convenience of trial, has said
that each must sue and recover separately, in separate ac-
tions ”’ (d).

This natural equity was first recognized by positive law in Statutes of
the case of the bankruptcy of one of the parties mutually eee
indebted, in order to obviate the hardship of the other party
having to pay his debts in full to the assignees of the bank-
rupt, whilst he had a claim against the bankrupt for debts of

(a) Pittam v. Foster, 1B. & C. 248. see Ew p. Stephens, 11 Ves. 24.

(0) Neve v. Hollands, 18 Q. B. (d) Green v. Farmer, 4 Burr. 2214,
262; 21 L. J. Q. B. 289. 2220; and see Collins y. Collins, 2

(c) Story, Eq. Jur. §§ 1484, 1485; Burr. 820, 826.

2N
546 CHAP. IV. THE DISCHARGE OF CONTRACTS.

Statntes of an equal or greater amount for which he would only be en-

set-off,

titled to a dividend under the bankruptcy (a).

The right of set-off applicable to debts in general was
first given’ by the statute 2 Geo. IT. c. 22, s. 18, which en-
acted that “ where there are mutual debts between the plain-
tiff and the defendant, or if either party sue or be sued as
executor or administrator, where there are mutual debts be-
tween the testator or intestate and either party, one debt
may be set against the other.’”’ This enactment was made
perpetual by the statute 8 Geo. II. c. 24, s. 4, and bys. 5 of
that statute it was further enacted “that mutual debts may
be set against each other, notwithstanding that such debts
are deemed in law to be of a different nature ; unless in cases
where either of the said debts shall accrue by reason of a
penalty contained in any bond or specialty, and in all cases
where either the debt for which the action shall be brought,
or the debt intended to be set-off against the same, shall ac-
crue by reason of any such penalty, the debt intended to be
set off shall be pleaded in bar, in which plea shall be shown
how much is truly and justly due on either side; and in case
the plaintiff shall recover in any such action or suit, judg-
ment shall be entered for no more than shall appear to be
truly and justly due to the plaintiff, after one debt being set
against the other as aforesaid.”

The right of set-off given by the statute arises only in case
of an action brought by one of the parties to the mutual
debts; in such action the defendant may set-off debts due
to him from the plaintiff im discharge of an equal amount of
therdebt sued for, and, if the debts thus set-off are equal to
the whole amount of those claimed by the plaintiff, there is a
complete defence to the action. By a rule of Court the de-
fence of a set-off must be specially pleaded, otherwise the de-
fendant is not allowed the benefit of it (0).

A set-off cannot be made available except by plea in an ac-
tion. A debtor is not entitled to apply a set-off in reduction

(a) See the statutes 4 Anne, c. 17, 1849, 12 & 18 Vict. c. 106, ». 171,
s. 11, and 5 Geo. II, c. 30, ». 28, re- cited, post, p. 553.
enacted in the same terms by the (2) 8 Reg. Gen. T. T. 1853; Gra-
Bankrupt Law Consolidation Act, ham v. Partridge, 1M. & W. 395.
SECT. XII, SET-OFF. 547

of the amount of his debt, and tender the balance only (a).
So, a debtor is not entitled to apply a set-off against a debt
for which his creditor holds a lien on property, so as to dis-
charge the property from such lien (0).

The defendant in an action is not obliged to avail himself
of a set-off to which he may be entitled ; he may reserve it
for the subject of a cross action ; or he may avail himself of
it, by way of set-off, in any subsequent action which the
plaintiff may bring agairist him (v). So, a set-off in respect
of an equitable debt which might have been pleaded to an
action at law for defence on equitable grounds may be re-
served, and asserted in a subsequent proceeding in a Court
of Equity (d).

The set-off must be due at the time of action brought, and
continue due until the time of trial. Debts accruing due
after the commencement of the suit are not within the sta-
tute, and cannot be pleaded in bar of the further mainten-
ance of the action (e) ; as a promissory note falling due (/),
or a judgment recovered, after the commencement of the
suit (g) ; and the debt must continue due up to the time of
the trial (h). Where a debt accrued due from the plaintiff to
the defendant after judgment recovered in the action, a Court
of Equity refused an injunction to restrain proceedings on
the judgment on the ground of set-off (2).

The right of set-off exists solely by force of the statute, Whatdebts
and, therefore, only in cases, according to the words of the re aT
‘statute, “ where there are mutual debts between the plaintiff set-off

and the defendant.””? In construing the statute the rule has
been laid down, that it applies only where the claims on both

sides are liquidated debts, or money demands, which can be

(a) Ante, p. 458, (c). Richards v. James, 2 Ex. 471.
(6) Clarke v. Fell, 4 B. & Ad. (f) Rogerson v. Ladbroke, 1
404, Bing. 93.

(c) See Laing v. Chatham, 1 Camp. (g) See Reynolds v. Beerling, 8 T.
252; per Lord Campbell, L.C., Jenner BR. 188.
y. Morris, 3 De G. F. & J. 45, 54; 30 (h) Dendy v. Powell,3 M. & W.

Ih J. GC. 361, 368. 442; Eyton v. Littledale, 4 Ex. 159;
(d) Jenner v. Morris,3 De G. F.& and see Stockbridge v. Sussams, 3 Q.
J.45; 30 L. J. C. 361. B. 239.
(e) Evans v. Prosser, 3'T. R. 186 ; (i) Maw vy. Ulyatt, 31 L. J. C. 33.

2n2
What debts
may be the
subject of
set: off.

548 CHAP. IV. THE DISCHARGE OF CONTRACTS.

ascertained with certainty at the time of pleading and with-
out a jury, and that it is not applicable where the claim on
either side is for unliquidated damages (a).

According to this rule the following claims have been de-
cided not to be within the statute ; and they can neither be
set-off against otherdebts, nor have otherdebts set-off against
them :—The claim against a surety upon a guarantee for the
debt of a third person (b). A claim under a contract of in-
demnity against actions, damages and costs (c) ; except as
to the claim for costs and expenses actually paid or incurred
to a liquidated amount (d). A claim by an accommodation
acceptor of a bill of exchange against the person for whose
accommodation it was accepted, to be indemnified against
having been compelled to pay the bill (e); except as to the
amount of the bill and interest, which is a liquidated
sum (f). A claim for not accepting a bill of exchange for
the price of goods sold according to the contract of sale, be-
fore the credit given by the bill has expired (g). A claim for
damages by the master of a ship against the charterer for
delaying the ship ; not being demurrage for which the price
is fixed by the terms of the charter-party (h). A claim against
an underwriter on a policy of marine insurance for a loss (:);
an adjustment of the loss at a fixed sum before action does
not render a set-off admissible, if the action is brought upon
the policy for unliquidated damages, because the adjustment
operates only as an admission, and prima facie evidence,
of the amount of the loss (j). A set-off may be pleaded

(a) Per Tindal, C.J., Morley v.
Inglis, 4 Bing. N. C. 58, 71; Hard-
castle vy. Netherwood, 5 B. & Ald. 98,
95.

(0) Crawford v. Stirling, 4 Esp.
206; Morley v. Inglis, 4 Bing. N.C.
58; Williams v. Flight, 2 Dowl. N.
8.11; and see Hutchinson v. Sidney,
10 Ex. 438.

(ce) Atwooll v. Atwooll, 2 E. & B.
23; 22 L. J. Q. B. 287.

(d) Brown vy. Tibbits, 11 C. B. N.
8. 855; 31 L.J. C. P. 206.

(e) Hardcastle vy. Netherwood, 5 B.
& Ald. 93.

(f) Crampton v. Walker, 3 E. &
E. 321; 30 L. J. Q. B. 19.

(9g) Hutchinson vy. Reid, 3 Camp.
329.

(h) Seeger v. Duthie, 8 C. B.N.
8. 45; 29 L. J.C. P. 253; and see
Horn v. Bensusan, 9 CO. & P. 709.

(t) Grant v. Royal Exchange Ass.
Co. 5 M. & 8. 439; Thomson vy. Red-
man, 11M. & W. 487; Castelli v.
Boddington, 1 E. & B. 66, 879; 22
L. J. Q. B. 5; Beckwith v. Bullen, 8
E. & B. 682; 27 L. J. Q. B. 162.

(j) Luckie v. Bushby, 13 ©. B.
864; 22 L. J.C. P. 220.
SECT. XII. SET-OFF. 549

to a debt, notwithstanding the defendant contracted to pay
it in ready money (a).

There are certain cases in which the plaintiff may frame Claims
his cause of action as a claim for unliquidated damages for {hich may

be framed
a wrong, or may waive the wrong and claim a liquidated either for

debt or sum of money, being the money received by the de- as
fendant by means of the wrong; and thus, upon precisely
the same state of facts, the plaintiff may exclude or admit a
set-off being pleaded against his claim according to the
ground chosen by him for his cause of action (6). The plain-
tiff remitted to the defendant a bill of exchange for the special
purpose of paying the amount over to a third person on the
plaintiff’s account, and the defendant discounted the bill, but
did not pay over the proceeds according to his instructions ;
it thus became open to the plaintiff to bring a special action
for the breach of the undertaking of the defendant, or to
claim the proceeds of the bill as money received by the de-
fendant to his use, and he adopted the latter form of ac-
tion ; it was held that the defendant might plead a set-off in
the action, although he would not have been able to do so
‘in an action framed for the breach of contract (¢). But
where the claim of the plaintiff is substantially a debt, and
he has no option to treat it otherwise, he cannot by merely
framing his action for a breach of a special contract, claim-
ing damages instead of a liquidated debt, exclude the de-
fendant from the benefit of a set-off (d).

Where the claim of the plaintiff consists partly of a liqui- Claims
dated debt and partly of unliquidated damages, the de- Rory fer
fendant may sever so much of the plaintiff’s claim as is partly for
liquidated, and plead a set-off as to that portion (ce). In an eee
action by the accommodation acceptor of a bill of exchange
for indemnity, claiming the amount of the bill and interest

(a) Eland v. Karr, 1 East, 375 ; (ce) Thorpe v. Thorpe, 3 B. & Ad.
Cornforth v. Rivett, 2 M.& 8.510; 580. i
see Clarke v. Fell, 4 B. & Ad. 404. (d) Birch v. Depeyster, 4 Camp.

(b) See ante, p. 48; Thorpe v. 885 ; and see Groom vy. West, 8 A. &
Thorpe, 3 B. & Ad. 580; Colson v. E. 758; Crampton v. Walker, 3 B. &
Welch, 1 Esp. 379 ; Hill v. Smith, 12 E. 321; 30L. J.Q. B. 19.

M. & W. 618, 631. (e) Crampton v. Walker, supra.
550 CHAP. IV. THE DISCHARGE OF CONTRACTS.

which he had been compelled to pay and also special da-
mage in payment of the costs of an action, a plea of set-off
confined to the amount of the bill and interest was held
good (a). In an action for indemnity against costs in an
action, claiming a certain sum as costs paid, a plea of set-
off may be pleaded to that part of the claim (0).

Deli bantedl A debt barred by the Statutes of Limitation before the
UW
ol Limita. Commencement of the suit will not support a plea of set-

tion.

off (c); but the statute must be pleaded specially in replica-
tion to a plea of set-off of such debt, and cannot be made
available under a mere traverse of the debt (d).

So, a debt discharged by bankruptcy before action can-
not be set-off; and that answer to the set-off must also be

Debt dis-
charged by
bank-

ruptcy. —_ specially replied (e).

Debt dis- A debt may be the subject of a plea of set-off, although

ee the debtor has been taken in execution for it, and remains
in custody; but not after the debtor has been discharged
from execution (f ).

The debts The debts must be mutual, that is, between the same

must be parties in the same right. In an action brought by the

Joint and plaintiff for a debt to which he is solely entitled the de-

debts. fendant cannot set off a debt due to him from the plaintiff

jointly with another; and this objection may be raised
under a traverse of the set-off (g). So, in an action brought
by all the partners of a firm for a debt due to the firm, the
defendant cannot set-off a debt due to him from one of the
partners separately (2); unless under a special agreement
with all to that effect (‘). But a defendant may plead that
the debt sued for was due from himself and another jointly,
and aset-off of debts due to them jointlyfrom the plaintiff (/);
and a defendant may set-off a debt due upon a joint and

(a) Crampton v. Walker, 3B. & E.

321; 30 L. J. Q. B.19.

(6) Brown v. Tibbits, 11 C. B.N.

8. 855; 31 L. J.C. P. 206.

(c) Walker v. Clements, 15 Q, B.

1046.

(d) Chapple v. Durston, 1C.& J.1.

(e) Ford v. Dornford, 8 Q. B. 583.
(f) Jaques vy. Withy, 1 T. R. 557 ;

Peacock v. Jeffery, 1 Taunt. 426.
(g) Arnold v. Bainbrigge, 9 Ex.
153. :

(h) France v. White, 6 Bing. N. C.
33; Gordon y. Ellis, 2 C. B. 821.
(@) See Kinnerley vy. Hossack,
2 Taunt. 170. ,
‘ (J) Stackwood v. Dunn, 3 Q. B.
22,

-
SECT. XII, SET-OFF. 551

several promissory note made to him by the plaintiff and
others (a), or a joint and several bond (J). Also a debt due
to or from the survivor of joint creditors or debtors may
be set-off against a debt to which he was originally a sole
party (c).

By the C. L. P. Act, 1860, 23 & 24 Vict. c. 126, s. 19, Hetue by
“ Every action may be brought in the name of all the persons plaintiffs,
in whom the legal right may be supposed to exist ; and judg- pie
ment may be given in favour of the plaintiffs by whom the titled.
action is brought, or of one or more of them, or, in case of
any question of misjoinder being raised, then in favour of
such one or more of them as shall be adjudged by the Court
to be entitled to recover.” And by s. 20, “ Upon the trial
of such cause a defendant who has therein pleaded a set-off
may obtain the benefit of his set-off by proving either that
all the parties named as plaintiffs are indebted to him, not-
withstanding that one or more of such plaintiffs was or were
improperly joined, or on proving that the plaintiff or plain-
tiffs who establish their right to maintain the cause is or are
indebted to him.”

Debts in respect of which a husband and wife must be Debts to or
made joint parties in an action cannot be set off against Pm 3 B's
debts to which the husband is a sole party. Where the wife.
husband has the right of suing either in his own name or of
joiming that of his wife, by suing in his own name he would
let in a set-off in respect of debts due from him alone, and
by suing in the name of himself and wife he would let in a
set-off of debts due from himself and her in her right (d).

If a person is a party to an action in a representative Debts to or

a. from exe-
character, as an executor or administrator, a plea of set-off tors and ad-
is not admissible in respect of debts to which he is a party oe
in his own right (e). And conversely, if a person is a party
to an action in his own right, a plea of set-off is not admis-
sible in respect of debts to which he is a party in the cha-

racter of executor or administrator (/ ).

(a) Owen v. Wilkinson, 5 OC. B.N. (d) See ante, p.240; Burrough vy.
8. 526; 28 L. J.C. P. 3. Moss, 10 B. & CO. 558; Field v- Allen,

(8) See Fletcher v. Dyche, 27. R.32. YM. & W. 694.

(ec) Slipper v. Stidstone, 5 T. RB. (e) Bishop v. Church, 3 Atk. 691.
493; French v. Andrade, 6T. R. 582; (f) Hutchinson vy. Sturges, Willes

see ante, p. 215. 251, 263.
Debts to or
from a tes-
tator or in-
testate.

Debts to or
from bank-
rupt.

Debts to or
from com-
panies.

552 CHAP. IV. THE DISCHARGE OF CONTRACTS.

The statute of set-off expressly provides that “ If either
party sue or be sued as executor or administrator, where
there are mutual debts between the testator or intestate and
either party, one debt may be set against the other.” It
has been decided that in order to become the subject of set-
off within the statute, the debts must have been due to or
from the testator or intestate in his lifetime, and that debts
accruing to or against the executor or administrator since
the decease, cannot be set-off against the debts accrued in
the lifetime of the testator or intestate. Thus, in an action
by an executor or administrator for money received by the
defendant for the use of the plaintiff, as executor or admi-
nistrator, and upon accounts stated between them, the de-
fendant cannot set-off debts due to him from the testator
or intestate in his lifetime (a). So, in an action against an
executor for a debt due to the plaintiff from the testator,
the defendant cannot set-off a debt which accrued due to
him, as executor, since the death of the testator (b). But
in an action by or against an executor, if it appears on the
pleadings that the debts sued for were those of the testator
in his lifetime, the set-off may be supported as within the
statute ; as perhaps in the case of a debt due upon an ac-
count stated with the executor in respect of such debts (c).

Where assignees of a bankrupt sue upon causes of action
accruing to them as assignees since the bankruptcy, the de-
fendant cannot set-off debts due to him from the bankrupt
before the bankruptcy (d). But under the mutual credit
clause of the Bankrupt Law Consolidation Act, 1849, it is
held that if the assignees sue in respect of a credit given to
the defendant by the bankrupt before the bankruptcy, though
accruing due to them since, a set-off in respect of a credit
given to the bankrupt may be pleaded (e).

Upon the winding up of a company with limited liability

(a) Tegetmeyer v. Lumley, Willes, 5th ed. 1700, 1767.
264, n.; Schofield v. Corbett, 11 Q. B. (d) Ridout vy. Brough, Cowp. 133 ;
759; Reesv. Watts,9 Ex.696; 11Ex. Groom v. Mealey, 2 Bing. N. C. 188;

410; 25 L. J. Ex. 30. Wood vy. Smith, 4 M. & W. 522; and
(6) Murdall v. Thellusson, 18Q.B. seeGrahamv Allsopp, 3 Kx. 186.
857; 6 BH. & B. 976. (e) See post, p.553 ; Hulme v. Mug-

(c) Ib.; Blakesley vy. Smallwood, gleston, 3 M. & W. 30; Bittleston
8 Q. B.538; and see 2 Wms. Exors. — v. Témmis, 1 C. B. 389.
SECT. XII. SET-OFF. 553

under “the Companies Act, 1862” (25 & 26 Vict. c. 89),
a shareholder, being also a creditor of the company, is not
entitled to set-off the amount of calls which have been
made upon him against the dividend payable upon his debt
against the company, but must pay the calls before he has
any right to receive a dividend with the other creditors ;
in the case of a company not limited, under the 101st sec-
tion of the statute, a contributory may be allowed by way
of set-off any monies due to him from the company on any
independent dealing or contract with the company, but not
any monies due to him as a member of the company in re-
spect of any dividend or profit(a). In an action against
an incorporated company or the public officer of a banking
company, the defendants may plead a set-off in respect of
calls due from the plaintiff to the company ()).

Since the Common Law Procedure Act, 1854, 17 & 18 Vict. Debts to or
c. 128, s. 83, admitting pleadings on equitable grounds, it en mus
has been decided that a plea of set-off on equitable grounds
may be pleaded in respect of a debt due from the plaintiff
to a trustee for the defendant; and hence it seems that a
similar plea in respect of a debt due from the real plaintiff
on whose behalf the nominal plaintiff is suing as trustee,
would be admissible (c). Before that statute the defendant
could not plead that the plaintiff sued as trustee on behalf
of a third person, and a set-off in repect of a debt due to
the defendant from the latter (d) ; nor could the defendant
plead a set-off of a bond given by the plaintiff to a third
party and assigned to the defendant (¢).

By the Bankrupt Law Consolidation Act, 1849, 12 & 18 get-ofror
Vict. c. 106, s. 171, repeating previous enactments, it is Mutual cre:

pe its with

provided “ that where there has been mutual credit given by bankrupt.

the bankrupt and any other person, or where there are mu-
tual debts between the bankrupt and any other person, the

(a) In re Overend Gurney and Co., 8. 448; 30 L. J.C. P. 97; and see
35 L.J. 0.752; L.R.1Ch. Ap.528; Cavendish v. Geaves, 24 Beav. 163.
see Ex p. Barrett, 34 L. J.B. Al. (d) Isberg v. Bowden, 8 Ex. 852,

(2) Moore v. Metropolitan Sewage overruling Bottomley v. Brooke and
Co., 3 Ex. 333; Milvain v. Mather, Rudge v. Birch, cited in 1 T. R. 621,
5 Ex. 56. 622. |

(c) Cochrane v. Green, 9 C. B. N. (e) Wake v. Tinkler, 16 Kast, 36.
Set-off of
mutual cre.
dits with
bankrupt.

554 CHAP. IV. THE DISCHARGE OF CONTRACTS.

Court shall state the account between them, and one debt
or demand may be set against another, notwithstanding any
prior act of bankruptcy committed by such bankrupt before
the credit given to or the debt contracted by him, and what
shall appear due on either side on the balance of such ac-
count, and no more, shall be claimed or paid on either side
respectively ; and every debt or demand hereby made prove-
able against the estate of the bankrupt may also be set off
in manner aforesaid against such estate; provided that the
person claiming the benefit of such set-off had not, when
such credit was given, notice of an act of bankruptcy by
such bankrupt committed.”

Mutual credits under this section include a wider range
of liabilities than the mutual debts which may be set-off
under the general statute ; they include all credits which
from their nature must terminate in debts (a). But a claim
for unliquidated damages arising from a breach of contract
with the bankrupt is not a credit within the enactment (b).

A claim for the price of goods sold to the bankrupt on
credit, before the credit hag expired, may be set-off under
the section in an action brought by the assignees against
the seller for a debt due to the estate (¢). So, in an action
by the assignees against the defendant for not accepting a
bill of exchange in payment of goods sold to him by the
bankrupt in pursuance of the contract of sale, the claim was
held to be a credit given by the bankrupt to which the de-
fendant might plead a set-off in respect of debts due from
the bankrupt (d). But a similar claim for the price of goods
sold, before the credit has expired, is not a debt within the
general statute of set-off (¢).

Taking an acceptance of the bankrupt from a third person,
is a giving credit within the statute (f). The defendant
having taken the acceptance of the bankrupt before bank-
ruptcy and indorsed it away, but it having been returned to
him after the bankruptcy, it was held to be a credit within

(a) Rose v. Hart, 8 Taunt. 499; (d) Gibson vy. Bell, 1 Bing. N. C.
2 Smith’s L. C. 5th ed. 251. 713; Groom vy, West, 8 A. & E.758.

(b) Bell v. Carey, 8 C. B. 887; (e) See ante, p. 548; Hutchinson
Rose vy. Sims, 1 B. & Ad. 521. v. Reid, 3 Camp. 329.

(c) Atkinson vy. Elliott, 7 'T. R. 378. (f) Hankey vy. Smith, 3'T. R. 507.
SECT, XIII. BANKRUPTCY. 505

the statute which might be set-off (a). Taking the accept-
ances of third persons by indorsement from the bankrupt is
a giving credit, which may be set-off against a debt due to
the bankrupt (4). " Taking the notes of a banker who had
stopped payment, without notice of an act of bankruptcy,
was held to constitute a valid credit which might be set-off
against a debt owing to the banker (c). The acceptance or
indorsement of a bill of exchange for the accommodation of
the bankrupt is a giving of credit to him within the sta-
tute, which may be the subject of a set-off (d).

A composition deed under the Bankruptcy Act, 1861, ss.
192,197, has a similar effect to an adjudication of bankruptcy
dating from the registration of the deed, so that in an ac-
tion by the trustees under such deed against a debtor of the
bankrupt, the defendant may set-off all debts proveable
against the estate, and all credits given to the bankrupt,
under the above section of the Bankrupt Law Consolidation
Act; thus, rent, being proveable for a proportionate part
up to the day of adjudication under the Bankruptcy Act,
1861, may be set-off, in such action by the trustees, for a pro-
portionate part up to the registration of the deed (e).

Cae. IV. Seor. XIII. Bankruptcy.

Discharge by Bankruptcy of What Claims are proveable in
Claims proveable ..,......... 555 Bankruptcy szcsasecveysnese 556

Tus discharge of debts and liabilities arising from contract Discharge
by bankruptcy is now regulated by “the Bankruptcy Act, ae
1861,” 24 & 25 Vict. c. 1384. By s. 161, it is enacted that, all claims
“The order of discharge (substituted by this Act for the ens

certificate of conformity, granted with the same effect under

(a) Collins v. Jones, 10 B. & OC. R.57; Fair v. M‘Iver,16 East, 130;
9777 ; Bolland v. Nash, 8B.&C.105. Forster v. Wilson, 12 M. & W. 191.

(b) Alsager v. Currie, 12 M. & W. (d) Smith v. Hodson, 4 T. R. 211;
751; see Young v. Bank of Bengal, Hulme v. Muggleston, 3 M. & W. 30;
1 Moore, P. C. 150. Russell v. Bell, 8 M. & W. 277;

(ce) Hawkins v. Whitten,10 B.&  Bitlleston v. Tinmis, 1 C. B. 389.

C. 217; Dickson v. Cass, 1 B. & Ad. (e) Stanger vy. Miller, L. Rep. 1

343; and see Dickson v. Evans, 6'l. Ex. 58; 35 L. J. Ex. 49,
Claims
proveable
in bauk-
ruptcy.

Debts con-
tracted

556 CHAP. 1V. THE DISCHARGE OF CONTRACTS.

the Bankrupt Law Consolidation Act, 1849, 12 & 13 Vict.
c. 106) shall, upon taking effect, discharge the bankrupt
from all debts, claims, or demands, proveable under his
bankruptcy, save as herein provided (the saving refers to
the cases under s. 159, in which the order of discharge may
be made subject to conditions); and if thereafter he shall be
arrested, or any action shall be brought against him for any
such debt, claim, or demand, he shall be discharged upon
entering an appearance, and may plead in general that the
cause of action accrued before he became bankrupt.”

By force of the above enactment the order of discharge
operates to discharge all debts, claims, and demands prove-
able under the bankruptcy, and may be pleaded in bar to
any action brought for them. It may be pleaded to actions’
commenced before the order was obtained (a); but if the
bankrupt neglects to plead it, and the plaintiff obtains judg-
ment, it cannot be pleaded to an action afterwards brought
upon the judgment (b). A mere adjudication of bankruptcy
against the defendant and proof of his debt by the plaintiff
under the bankrupty is no defence to an action for the debt
either on legal or equitable grounds, but is only ground for
an application to the Court to stay proceedings in the ac-
tion (¢).

What debts, claims, and demands, are proveable under
the bankruptcy and, therefore, discharged by the order (those
being convertible terms (d), are further particularly described
in other sections of the Act (see the Bankruptcy Act, 1861,
ss. 144-156), and in previous enactments (see the Bankrupt
Law Consolidation Act, ss. 172-181). The full discussion of
those enactments is beyond the scope of the present work,
and will be found in works especially devoted to the law of
bankruptcy; it will be sufficient here to notice generally
some of the principal claims arising from contracts which,
being proveable, are discharged by bankruptcy.

Formerly, a debt contracted subsequently to the act of

(a) Harris v. James, 9 Fast, 82. Spencer v. Demett, 4 H. & O. 127 335
(b) Todd y. Maxfield, 6B. &C.105. LJ. Ex. 73; L. Rep. 1 Ex. 123.
(ec) 12 & 13 Vict. c. 106, s. 182; (d) Bamford v. Burrell, 2 B. &

Harleyyv. Greenwood, 5 B.& Ald. 95; = P.1, 11.
SECT. XIII. BANKRUPTCY. 557

bankruptcy was not proveable (a). But now by “ the Bank- after act of
rupt Law Consolidation Act, 1849,? 12 & 13 Vict. c. 106, fie
s. 165, (mcorporating 46 Geo. III, c. 185, s. 2), it is enacted
“that every person with whom any bankrupt shall have
really and bond fide contracted any debt or demand before the
issuing of the fiat or the filing of the petition for adjudica-

tion of bankruptcy shall, notwithstanding any prior act of
bankruptcy committed by such bankrupt, be admitted to
prove the same, as if no such act of bankruptcy had been
committed, provided such person had not, at the time the
same was contracted, notice of any act of bankruptcy by
such bankrupt committed.”

Formerly, also, only debts absolutely due and certain in
amount before the act of bankruptcy, (or subsequently to
46 Geo. III, c. 135, before the filing of the petition) could
be proved ; consequently, debts payable at a time then future,

.and debts payable upon a condition or contingency not then

fulfilled, and liabilities not then liquidated and ascertained,
were not proveable, and therefore not discharged by the
bankruptcy ; but by various enactments from time to time
made these various kinds of debts have, for the most part,
been rendered proveable, and are now discharged by a cer-
tificate or order of discharge in bankruptcy.

A debt payable at a future time which has not elapsed Debts not
at the time of the act of bankruptcy, as a bill or note Peyape*,
not then due, was originally not proveable (b) ; but now by aad of
the Bankrupt Law Consolidation Act, 1849, s. 172, (fol- ruptey.
lowing 7 Geo. I. c. 31), it is enacted “ that any person who
shall have given credit to the bankrupt upon valuable
consideration for any money or other matter or thing what-
soever which shall not have become payable when such
bankrupt committed an act of bankruptcy, and whether
such credit shall have been given upon any bill, bond,
note, or other negotiable security, or not, shall be enti-
tled to prove such debt, bill, bond, note or other security,
as if the same was payable presently, and receive divi-

\) Bamford v. Burrell, 2B. & in 2 Str. 867 ; Ex p. East India Com-
pany, 2 P. Wins. 395.
i Callowel vy. Clutterbuck, cited
Debts pay-
able by in-
stalments.

Annuities.

558 CHAP. IV. THE DISCHARGE OF CONTRACTS.

dends equally with the other creditors, deducting only there-
out a rebate of interest for what he shall so receive at the
rate of five pounds per centwm per annum, to be computed
from the declaration of a dividend to the time such debt
would have become payable according to the terms upon
which it was contracted.” Under this enactment a bill of
exchange is proveable against the bankrupt drawer and he
is discharged from the same, although at the time of the
bankruptcy the bill had not been refused payment by the
acceptor (a). A promissory note expressed to be made for
value received and payable with interest twelve months after
notice was held to be proveable under the bankruptcy of
the maker, so that the maker was discharged by his certifi-
cate, although no notice had been given at the time of the
bankruptcy ()). The rebate of interest to be deducted ap-
plies only to the dividends received, and not to the amount
of the debt to be proved (c).

Debts payable by instalments are provided for by the
Bankruptcy Act, 1861, 24 & 25 Vict. 134, s. 151, which
enacts that “if any bankrupt shall have contracted before
the filing of a petition for adjudication, any debt payable by
way of instalments, the creditor may prove for the amount
of such instalments remaining unpaid at the time of such
petition.” 2

An annuity creditor under a mere personal contract, not
charged upon land, could formerly prove only for the arrears
of the annuity due at the time of the act of bankruptcy,—the
payments accruing afterwards becoming a debt after the
bankruptcy, unless the annuity was secured by a bond, and
the bond had become forfeited before the act of bankruptcy,
when the penalty might be proved as a legal debt, and the
annuitant was allowed to recover to the value of the annuity,
to be proved as the debt (d). Now by the Bankrupt Law
Consolidation Act, 1849, s. 175, (following the 6 Geo. IV.

(a) Starey v. Barns, 7 East, 435 ; (d) See Ex p. Artis, 2 Ves. sen.
and see Alsager v. Currie, 12M.&W. 489; Perkins v. Kempland, 2 W. BI.
751. 1106 ; Cotterel vy. Hooke, Doug. 97;

(6) Clayton v. Gosling, 5 B.&C. Ex p. Le Compte, 1 Atk. 251; Ex p.
360. Thistlewood, 19 Ves. 236.
(c) Ex p. Hill, 2 Deac. 249.
SECT. XIII. BANKRUPTCY. 559

c. 16, s. 54, and the 49 Geo. ILI. ¢. 121, s. 17), it is enacted
“that any annuity creditor of any bankrupt, by whatever
assurance the same be secured, and whether there were or
not any arrears of such annuity due at the bankruptcy, shall
be entitled to prove for the value of such annuity, which
value the Court shall ascertain, regard being had to the ori-
ginal price given for such annuity, deducting therefrom such
diminution in the value thereof as shall have been caused by
the lapse of time since the grant thereof to the date of the
fiat or the filing of the petition for adjudication of bank-
ruptcy.”

Policies of insurance, also bottomry and respondentia Policies of

bonds, being contingent debts, formerly were not proveable peer
unless the contingency happened before the bankruptcy ; but
by the Bankrupt Law Consolidation Act, 1849, s. 174, (fol-
lowing the 19 Geo. II, c. 82, s. 2, and the 6 Geo. IV. ¢. 16,
s. 53), it is enacted “that the obligee in any bottomry or
respondentia bond, and the assured in any policy of insur-
ance, made upon good and valuable consideration, shall be
admitted to claim, and after the loss or contingency shall
have happened, to prove his debt or demand in respect
thereof, and receive dividends with the other creditors, as
if the loss or contingency had happened before the issu-
ing of the fiat or the filing of the petition for adjudication of
bankruptcy against such obligor or insurer.” Policies of
insurance upon lives are within this enactment ().

With respect to contracts of suretyship the Bankrupt Law Debts paid
Consolidation Act, 1849, s. 173, enacts “‘ that any person cb ea or
who at the time of issuing the fiat, or of filing a petition for bankrupt.
adjudication of bankruptcy, shall be surety or lable for any
debt of the bankrupt, or bail for the bankrupt, either to the
sheriff or to the action, if he shall have paid the debt, or any
part thereof in discharge of the whole debt, (although he
may have paid the same after the issuing of the fiat or the
filing of the petition for adjudication of bankruptcy), if the
creditor shall have proved his debt under the bankruptcy,
shall be entitled to stand in the place of such creditor as to
the dividends and all other rights under the bankruptcy

(a) Cox vy. Liotard, 1 Doug. 166.
560 CHAP. IV. THE DISCHARGE OF CONTRACTS.

which such creditor possessed or would be entitled to in re-
spect of such proof; or if the creditor shall not have proved,
such surety or person liable, or bail, shall be entitled to prove
his demand in respect of such payment as a debt under the
bankruptcy, not disturbing the former dividends, and may
receive dividends with the other creditors, although he may
have become surety, liable or bail as aforesaid, after an act
of bankruptcy committed by the bankrupt, provided that
such person had not, when he became such surety or bail,
or so liable as aforesaid, notice of any act of bankruptcy by
such bankrupt committed.”

Debts pay- Debts payable upon a contingency, in general, were ad-

ableupon ® mitted to proof by 6 Geo. IV. c. 16, s. 56, repeated by the

gency. § Bankrupt Law Consolidation Act, 1849, s. 177, which enacts,
‘that if any bankrupt shall, before the issuing of the fiat or
filing of a petition for adjudication of bankruptcy, have con-
tracted any debt payable upon a contingency which shall not
have happened before the issuing of such fiat or the filing of
such petition, the person with whom such debt has been con-
tracted may, if he think fit, apply to the Court to set a value
upon such debt, and the Court is hereby required to ascertain
the value thereof, and to admit such person to prove the
amount so ascertained and to receive dividends thereon ; or
if such value shall not be so ascertained before the con-
tingency shall have happened, then such person may, after
such contingency shall have happened, prove in respect of
such debt, and receive dividends with the other creditors,
not disturbing any former dividends; provided such person
had not when such debt was contracted, notice of any act
of bankruptcy by such bankrupt committed.”

Liability to In the construction of this enactment a distinction has

pay money been taken: between contingent liabilities which may never

ecaey.<. become debts, and debts payable on a contingency ; and it
has been held that the latter only are proveable under it (a).
Liabilities of the former kind are provided for by s. 178,
which enacts “That if any trader who shall become bank-
rupt after the commencement of this Act shall have con-

(a) Hinton vy. Acraman, 2 C. B. N.C. 578; South Staffordshire Ry.
367, 409; Ea p. Marshall, 1 Ment. Co. v. Burnside, 5 Ex. 129.
& Ayr. 145 ; Abbott v. Hicks,5 Bing.
SECT. XIII. BANKRUPTCY. 561

tracted, before the filmg of a petition for adjudication of
bankruptcy, a liability to pay money upon a contingency
which shall not have happened, and the demand in respect
thereof shall not have been ascertained before the filing of
such petition, in every such case, if such liability be not
proveable under any other provision of this Act, the person
with whom such lability has been contracted shall be ad-
mitted to claim for such sum as the court shall think fit;
and after the contingency shall have happened, and the de-
mand in respect of such liability shall have been ascertained,
he shall be admitted to prove such demand, and receive
dividends with the other creditors, and, so far as practicable,
as if the contingency had happened and the demand had
been ascertained before the filing of such petition, but not
disturbing former dividends, provided such person had not,
at the time such liability was contracted, notice of any act
of bankruptcy by such bankrupt committed ; provided also,
that where any such claim shall not have, either in whole or
in part, been converted into a proof within six months after
the filing of such petition, it may, upon the application of
the assignees at any time after the expiration of such time,
and if the court shall think fit, be expunged, either in whole
or in part, from the proceedings ”’ (a).

Where the defendant by deed assigned a policy of insu- Premiums
rance on his life to the plaintiff to secure a debt, and cove- ae
nanted to pay the annual premiums, and also that, if he rance.
made default, the plaintiff might pay the premiums for the
purpose of keeping up the policy, and that the defendant
would on demand pay to the plaintiff the money so paid, it
was held that, as to premiums becoming due after the bank-
ruptcy of the defendant, the liability of the defendant on
those covenants was not proveable as a liability to pay money
upon a contingency within the above section (b). To meet

(a) As to when this section is ap-
plicable, see Maples v. Pepper, 18
C. B. 189; 25 L. J.C. P. 243; ar-
nott v. Holden, 18 Q. B. 595; Boyd
y. Robins, 5 C. B. N. 8. 597; 28
L.J.C.P.73; White v. Corbett, 1 B.
& E. 692; 28 L. J. Q. B. 228; Greet
vy. Webb, 5 H.& N. 601; General Dis-
count Co, vy. Stokes, 17 C. B. N.S.

765; 34. J.C. P. 25; Hx p. Kemp-
son, 34 L. J. Bankr. 21.

(b) Toppin v. Field, 4 Q. B. 386;
Young v. Winter, 16 C. B. 401; 24
L. J.C. P. 214; Warburg v. Tucker,
5. & B. 384; E. B.& BE. 914; 24
J. Q. B. 317; 28 id. 56; affirmed
H. L. in Mitcalfe v. Hanson, 35 L.
Q. B. 225; L, R. 1 H. L. 242,

20

L.
in
J.
562 CHAP. 1V. THE DISCHARGE OF CONTRACTS.

this particular case it was enacted by “the Bankruptcy Act,
1861,” s. 154, that “If any bankrupt shall at the time of
adjudication be liable by reason of any contract or promise
to pay premiums upon any policy of insurance, or any other
sums of money, whether yearly or otherwise, or to repay to
or indemnify any person against any such payments, the
person entitled to the benefit of such contract or promise
may, if he think fit, apply to the court to set a value upon
his interest under such contract or promise, and the court is
hereby required to ascertain the value thereof, and to admit
such person to prove the amount so ascertained, and to re-
ceive dividends thereon.”
Liabilityon 1b was formerly necessary that a demand, in order to be
ona for broveable, should in all cases be ascertained in amount, or
dated da- capable of being ascertained in amount without the inter-
mages. 2 ‘ ‘ eer
vention of a jury, and not a mere claim for unliquidated
damages (a). But by “the Bankruptcy Act, 1861,” s. 153,
it is enacted that ‘If any bankrupt shall at the time of
adjudication be liable, by reason of any: contract or promise,
to a demand in the nature of damages which have not been
and cannot be otherwise liquidated or ascertained, it shall
be lawful for the court acting in prosecution of such bank-
ruptcy to direct such damages to be assessed by a jury,
either before itself or in a court of law, and to give all neces-
sary directions for such purpose; and the amount of damage,
when assessed, shall be proveable as if a debt due at the
time of the bankruptcy ; provided that in case all necessary
parties agree, the court shall have power to assess such
damages without the intervention of a jury or a reference to
a court of law.’

A demand for damages consequent on a breach of con-
tract committed after adjudication cannot be proved under
this section,(b). A demand for damages for any other cause
than a contract or promise within the above section, as for a

(a) Utterson vy. Vernon, 3 T. R. Bing. 209; Weolley v. Smith, 3 C. B.
5389; 4 ib. 570; Banister v. Scott, 610.
6 T. R. 489; Hammond v. Toulmin, (b) Ex p. Mendel, 1 De G.J.& 8.
7 T. BR. 612; Boorman v. Nash, 9 330; 33 L. J.B. 14; Ex p. Kempson,
B. & 0.145; Green v. Bicknell, 8 A. 341, J. B. 21.
& E. 701; Atwood y. Partridge, 4
SECT. XIII. BANKRUPTCY. 563

trespass committed, is not proveable, unless judgment has
been signed in an action for such demand, constituting a
debt contracted, before the filing of the petition (a).

In those cases where a plaintiff has the option of suing in
an action of tort for damages for a wrong committed by the
defendant, or of waiving the wrong and claiming the pro-
ceeds of the wrong in the hands of the defendaut as a debt,
if the plaintiff chooses to enforce his claim for damages,
the defendant cannot plead his bankruptcy, because a de-
mand of that nature is not proveable, and, therefore, not
discharged by bankruptcy (b); but if the plaintiff frames
his demand as a debt, the bankruptcy of the defendant is a
good defence, because such debt is proveable (c). Whenever
a claim is discharged by bankruptcy, all the right to special
damage, being accessory to and consequential on the claim,
is also barred (d).

(a) Robinson v. Vale, 2 B. & C.  Crole, 5 Bing. 63.
762. (c) Johnson vy. Spiller, 1 Doug.
(b) Ante, p. 48; Parker vy. Norton, 167; and see Woolley v. Smith, 3 C.
6 T. R. 695; per Buller, J., Utterson B. 610, 618, 622.
v. Vernon, 3 T. R. 539, 548; Good- (d) Van Sandaw vy. Corsbie, 3 B
title v. North, 2 Doug.584; Parkeryv. & Ald. 18.

202
Damages
recoverable
for breach
of contract.

Or
oa
Sg

 

CHAPTER V.
DAMAGES.
Damages for Breach of Con- Interest at Common Law...... 584
GEGb: cieiceunsentivn saa neanent 564 by Statute 0.0... ccc eee 587
General Damage .... : Damages on Contracts for the
Nominal Damage sale of Goods ............... 589
Special Damage............... j for Non-delivery of specific
Liquidated Damages and Pe- Mattel ache hecklers 92
TANGER tone eanedeasneleoemes 573 for Breach of Warranty... 593
Relief against Penalty ...... 575 on Contracts for the Sale
Construction of Contracts OF Landy. <accaswascianeten sae 595
as to liquidated Damages for Costs of Actions caused
and Penalties ............... 578 by Breach of Contract ... 597

A Breaca of contract, so far as it extends, converts the
right to the performance of the contract into a right to da-
mages, or compensation in money, for the non-performance,
to be ascertained and recovered by means of an action, un-
less the parties can agree as to the satisfaction of such right.
The right of action for damages, in point of form, is regu-
lated by the Law of Procedure, which is beyond the scope
of this treatise. The damages, forming the substance of the
right, are measured and ascertained’ in amount according
to general rules and principles of law, some of which are
common to all rights of action, and some are peculiar to
those arising from breach of contract, and may, therefore,
be here noticed.

The damages recoverable in an action are commonly, and
conveniently, distinguished in law, as general and special
damages; the former being the necessary and immediate
loss occasioned by the breach of contract or other injurious
act; the latter comprising the loss which may follow as a
565

CHAP. V. DAMAGES.

special consequence of the breach of contract or injurious
act, beyond its necessary and immediate effect.

It is a rule of pleading, that if special damage is in-
tended to be claimed, it must be stated with particularity in
the declaration ; but general damage requires no particular
mention (a). The object of this rule is to give notice to
the defendant of the nature and extent of the claim made
against him, in respect of the special consequences of the
injury, of which he might not otherwise be aware, in order
that he may be prepared to meet that claim. The claim of
general damages is sufficiently made known in the state-
ment of the jury, which imports all its necessary and im-
mediate effects (+). The plaintiff is not allowed to prove
for any special damage which is not claimed with sufficient
particularity in the declaration (c).

Im actions for breach of contract, the general damage is General

commonly described as the loss sustained by the plaintiff
from the non-performance of the contract; the benefit which
the plaintiff would have received if the contract had been
kept is the measure of damages if the contract is broken (d).
This rule is said to be correctly laid down by Parke, B.,
thus :— The rule of the common law is, that, where a party
sustains a loss by reason of a breach of contract, he is, so
far as money can do it, to be placed in the same situation,
with respect to damages, as if the contract had been per-
formed” (e). But such damage is to be ascertained by a
jury according to certain rules of law (f).

In actions for breach of contract the damages are con-
fined to those matters of loss and detriment caused by
the breach of contract which are in their nature capable of

(a) See Boorman v. Nash, 9 B. &
C. 145, 152; Rodgers v. Nowill, 5 C.
B. 109.

1b) Smith v. Thomas, 2 Bing. N.C.
372, 380.

(c) 1 Wms. Saund. 248 e, n. (5);
Hartley v. Herring, 8 T. R.130 ; and
see Bullen and Leake, Prec. Pl., 2nd
ed., p. 8.

(d) Alder v. Keighley, 15 M. &
W. 117, 120; Fletcher v. Tayleur,

17 C. B. 21; 25 L. J.C. P. 65; per
Erle, J., Simons v. Patchett, 7 E.& B.
564, 573.

(e) Per Parke, B., Robinson v. Har-
man, 1 Ex. 850, 855; see Lock v.
Furze, L. R.1C. P. 441, 450, 453;
35 L. J. C. P.141, 148, 144.

(f) See per Bramwell, B., Prady e
v. Oastler, 3 H. & C. 112,124; 33 L.
J. Ex. 300, 304.

amage.
General
damage.

566 CHAP. V. DAMAGES.

being specifically stated and appreciated in value; no da-
mages can be awarded for the disappointment, or annoy-
ance to the feelings, caused by the breach of contract (a).
There is a distinction in this respect between actions for
breach of contract and actions for wrongs done to the per-
son or property. In the case of wrongs of the latter kind,
generally speaking, “‘ the damages are entirely with the jury,
and they are at liberty to take into consideration the injury
to the party’s feelings, and the pain he has experienced, as
for instance the extent of violence in an action of assault;
and many topics and many elements of damage find place in
an action for tort, which have no place whatever in an ordi-
dinary action of contract’? (6).—‘ The case of a contract to
marry has always been considered a sort of exception, in
which not merely the loss of an establishment in life, but,
to a certain extent, the injury to a person’s feelings in re-
spect to that particular species of contract, may be taken
into account”? (c).

It is further said that, ‘‘ generally speaking, where there
are several ways in which the contract might be performed,
the damages are to be estimated according to that mode
which is least profitable to the plaintiff and the least bur-
thensome to the defendant”’ (d).

The consideration given for a promise, for breach of which
damages are claimed, is, in general, immaterial to the ques-
tion of the amount of damages; thus, in an action for not
delivering goods according to contract, upon the question of
damages, it was held to be immaterial and inadmissible for
the plaintiff to prove that the price agreed for was greater
than the market price by reason of the undertaking of the de-
fendant to deliver the goods at the time specified, the only
question being the loss sustained by the non-delivery, which
depended solely upon the market price of the goods at the

(a) Hamlin vy. Great Northern Ry.  Co., 26 L. J. Ex. 20, 23; 1H. & N.
Co, 1H. & N. 408; 26 L. J. Ex. 20, 408, 410; per Willes, J., Smith v.
(6) Hamlin v. Great Northern Ry.  Woodfine, 1 C. B. N. S. 660, 668;
Co., 26 L. J. Ex. 20,23; 1H. & N. Berry v. Da Costa, L. Rep. 10. P.
408, 410; and see Hmblen v. Myers, 331; 35 L J.C. P. 191.
6H. & N. 54; 30L. J. Bx. 71. (d) Per Maule, J., Cockburn v.
(c) Hamlin v. Great Northern Ry. Alexander, 6 C. B. 791, 814.
CHAP. V. DAMAGES. 567

time when the contract was broken (a). But where money
has been paid as the consideration for a promise which has
wholly failed, as a general rule, the money so paid may be
recovered under an implied contract to that effect (6).

There may be claimed and assessed as damages, not only
the loss which has already actually accrued, but also the
prospective loss which it is reasonably certain will happen
im futuro (c); for example, where the costs of an action oc-
casioned by the defendant’s wrong are recoverable as da-
mage, the liability to pay such costs, before they are actu-
ally paid, may be assessed (d).

Every breach of contract, as being an infringement of a Nominal

‘ 2 i ‘ x. ¢ ped amare.
right, imports some damage in law; so that, if the plaintiff 7
sueceeds in establishing a breach of contract, but fails in
showing any appreciable damage in fact occasioned by it, he
is nevertheless entitled in law to judgment for damages,
which, as they exist only in name and not in amount, are
called nominal (e). ‘“ Nominal damages, in fact, mean a
sum of money that may be spoken of, but that has no exist-
ence in point of quantity.” They have also been called “a
mere peg on which to hang costs,” meaning thereby that
the plaintiff may be entitled to sue for nominal damages for
the purpose only of recovering his costs (f).

In an action for the non-payment of a debt or liquidated
demand in money the general measure of damages is the
amount of the debt or demand, together with the amount of
interest, if any interest is payable. The damages for the
mere detention of the debt beyond the day of payment are
nominal ; that is to say, the creditor is entitled to bring an
action for the detention of the debt, but is not entitled to
recover more than the amount of the debt and interest, and

(a) Brady v. Oastler, 3 H. & C. (e) Marzetti v. Williams, 1B. &
112; 33 L. J. Ex. 300. Ad. 415; Wilde v. Clarkson, 6 T. R.
(6) See per Martin, B., 7b.; andsee 303; Warre v. Calrert, 7 A. & E.
ante, p. 60. 143; per Tindal, C.J., Godefroy v.

(ce) Richardson v. Mellish,2 Bing. Jay, 7 Bing. 413, 419; Sowdon v.
229; Nicklin v. Williams, 10 Ex. Alills, 30 L. J. Q. B. 175. :
259; Hodsoll v. Stallebrass, 11 A. & (f) Per Maule, J., Beaumont v.
E. 301. Greathead, 2 C. B. 494, 499; and see

(d) See post, p. 600. ante, p. 472.
Nominal
damage,

568 CHAP. V. DAMAGES.

the costs of the action. If he accepts payment of the debt
before commencing an action, he cannot afterwards com-
mence an action to recover nominal damages merely for the
detention (a); but if he accepts payment after commencing
an action, he is entitled to continue the action in respect of
the nominal damages, in order to recover the costs of his
suit; unless the payment was accepted in satisfaction of his
entire claim, including such damages and costs, in which
case his right of action is completely discharged (0).

In an action by a customer against a banker for refusing
to cash the customer’s check, when he was supplied with
funds for that purpose, the customer is entitled, at least, to
nominal damage, although he may not be able to prove any
real loss (c); but the jury may give him substantial damages
without proof of actual loss (d). In an action brought by
the plaintiff to recover damages for the breach by the de-
fendant of a promise to procure a third party to sign a cer-
tain written guarantee to the plaintiff, where it appeared
that the guarantee, even if signed, would have been void
and of no avail to the plaintiff, so that he sustained no
actual damage by reason of its not having been signed, it
was held that the defendant was liable for the breach of
contract, but to the extent of nominal damages only, upon
the principle above stated (ec). The defendant by deed as-
signed to the plaintiff a policy of insurance as collateral
security for a mortgage and covenanted to pay the premiums,
and in case he should not, that it should be lawful for the
plaintiff to do so and add the premiums to the mortgage
debt, but the defendant did not covenant to repay otherwise
such premiums to the plaintiff; the defendant havig made
default in paying the premiums, the plaintiff paid them,
and sued the defendant fora breach of covenant ; it was held
that he could recover only nominal damages (/).

The plaintiff in an action in a local court, having a jurisdic-

(a) Beaumont v. Greathead, 2 C. B. (e) Bushell vy. Beavan, 1 Bing. N.
494, C. 103,

(0) See ante, p. 472. (f) Brown v. Price, 40. B. N.S.

(ce) Marzetti v. Williams, 1 B. & 598; 27 L. J. ©. P. 290; and see
Ad. 415. National Assurance Ass. v. Best, 2

(d) Rolin vy. Steward, 14C. B. 595. H. & N. 605; 27 L. J. Ex. 19.
CHAP. V. DAMAGES. 569

tion limited to cases in which the sum or damages recovered
did not exceed £50, recovered judgment for a debt of £50,
together with a sum for damages and costs; it was held that
the sum recovered in the action was the debt of £50, and
that the damages recovered for the detention, being merely
nominal damages awarded for the purpose of carrying costs,
did not increase the sum recovered beyond the limits of the
jurisdiction (a).

If the plaintiff proves a cause of action entitling him to
some damages, but the jury are unable to ascertain the
amount, the Court will permit the plaintiff to enter a verdict
for nominal damages (b). But in an action on an account
stated respecting a debt, the amount of which was uncertain,
it was held that the plaintiff was not entitled even to nomi-
nal damages, because a certain amount is essential in order
to constitute an account stated (c).

A debt or liquidated money demand differs in this respect
from a claim for the detention of goods; the wrongful de-
tention of goods entitles the owner to substantial damages,
and a subsequent delivery of the goods does not affect the
claim for the mere detention, and operates only in mitiga-
tion of the damages claimed for the va.ue of the goods (d).

Special damage includes the loss which follows the breach Special

of contract as a special consequeuce under the circumstances
of the case, over and above the necessary and immediate
effects which are included in the general damage. Thus,
in an action for the breach of warranty of a cable sold by the
defendant to the plaintiff, which the plaintiff lost together
with an anchor fastened to it, the plaintiff was held entitled
to recover for the loss of the anchor as special damage, over
and above the loss of the cable (e).

The following rule has been laid down in the case of
Hadley v. Baxendale (f), with reference to the special conse-
quences of a breach of contract for which the party breaking

(a) Joule v. Taylor, 7 Ex. 58. (d) See Griffiths v. Owen, 13 M. &
(b) Feizev. Thompson,1 Taunt.121. W. 58.
(c) Lane v. Hill, 18 Q. B. 252; (e) Borradaile v. Brunton, 8 Taunt.

21 L. J. Q. B. 318; and see ante, p. 535.
68. (f) 9 Ex. 341.

damage.
Special
damage.

570 CHAP. V. DAMAGES.

the contract may be held liable :—“ Where two parties have
made a contract which one of them has broken, the damages
which the other party ought to receive in respect of such
breach of contract should be, either such as may fairly and
reasonably be considered as arising naturally, 7.e., according
to the usual course of things, from such breach of contract
itself, or such as may reasonably be supposed to have been
in the contemplation of both parties, at the time they made
the contract, as the probable result of the breach of it. Now,
if the special circumstances under which the contract was
actually made were communicated by the plaintiff to the
defendant, and thus known to both parties, the damages
resulting from the breach of such a contract, which they
would reasonably contemplate, would be the amount of in-
jury which would ordinarily follow from a breach of contract
under the special circumstances so known and communi-
cated. But, on the other hand, if these special circum-
stances were wholly unknown to the party breaking the
contract, he, at the most, could only be supposed to have
had in his contemplation the amount of injury which would
arise generally, and in the great multitude of cases not
affected by any special circumstances, from such a breach
of contract. For, had the special circumstances been known,
the parties might have especially provided for the breach of
contract by special terms as to the damages in that case ;
and of this advantage it would be very unjust to deprive
them.”’

In the case of Hadley v. Baxendale, the owner of a mill
employed a carrier to convey a broken shaft belonging to -
the mill to be delivered to an engineer for the purpose of
being repaired, and the carrier committed a breach of con-
tract by delaying the carriage, thereby causing a delay in
repairing the shaft, and the stoppage of the mill; it was
held that the mill owner was not entitled to recover from
the carrier compensation for the loss occasioned by the
stoppage of the mill, as damage caused by his breach of con-
tract in delaying the carriage of the shaft, because the stop-
page of the mill was not contemplated by the parties in making
the contract as a consequence of the breach, and the special
CHAP. V. DAMAGES. 571

circumstances by which it was brought about were not com- Special

municated to or known by the carrier («).

The rule laid down in the case of Hudley v. Bawendale has
been adopted in the following cases :—In actions against
carriers for the non-delivery of goods, it may be assumed,
in general, to be within their contemplation that goods sent
may be intended for sale, and accordingly they are held re-
sponsible for the market value of the goods at the time and
place at which they ought to have been delivered; so that
in case of delay the loss sustained by a fall in the market is
recoverable as damage, without any special notice to the
carrier that the goods were intended for sale (b). But the
carrier is not, in general, responsible for the failure of any
peculiar purpose for which the goods are intended, of which
he has no notice {¢). Thus, in an action against a carrier
for delay in delivering bales of cotton sent by him, it was
held that the plaintiff was not entitled to recover, as the
natural consequence of such delay, the loss arising from the
stoppage of his mill for want of cotton to work (d). So,
where the plaintiff sent goods by the defendants’ iailway to
a particular place, intending them to be sold there by his
traveller, who went to meet the goods, but failed to receive
them by reason of the delay of the defendants in the de-
livery, whereby the sale was frustrated ; it was held that the
plaintiff could not recover as damages the loss of profit
which he might have made by the sale through his traveller,
because such profit depended on circumstances peculiar to
the plaintiff (e). So, in an action by a passenger against a
carrier for failing to carry him to the end of the journey, it
was held that, though he was entitled to recover the costs
of completing the journey, he could not recover as damage

(a) Hadley v. Baxendale, 9 Ex. 8.484; 341. J. Q. B. 154,
Al. (ce) Wilson v. Lancashire & York-
(6) Collard v. South-Eastern Ry. shire Ry. Co., supra; Great Western
Co.,7 H.& N. 79; 30L. J. Ex.393; Ry. Co. v. Redmayne, L. Rep. 1 C. P.
Wilson vy. Lancashire & Yorkshire 329. .

3

Ry. Co.,9 C. B. N.S. 682; 30 Ind. (d) Gee v. Lancashire & Yorkshire
C. P. 232; Rice v. Barendale,7 H. fy. Co., 30 Li, Ts Ex. 11.
&N. 96; 80L. J. Ex. 8371; O Hun- (e) Great Western Ry. Co. v. Red-

lan v. Great Western Ry. Co.,6B.& mayne, L. Rep. 1 C. P. 329.

damage.
Special
damage.

572 CHAP. V. DAMAGES.

the loss sustained through the special purpose of his journey
being frustrated by reason of the delay (a).

The defendant contracted to sell and deliver to the plain-
tiff certain goods at an appointed time, knowing that they
were intended for exportation to a foreign market, but de-
layed the delivery of the goods until a season at which it was
necessary to pay higher rates of freight and insurance for
exportation to that market; it was held that the increased
expenses of exportation were recoverable as damages (b).
So, where goods were contracted to be delivered which the
seller knew were intended to be sold again, and he failed to
deliver them; there being no market at which the buyer
could replace the goods, he was held entitled to recover
as special damage his loss of profit on resales which he was
unable to complete (c). The plaintiff, a farmer, contracted
with the defendant for the delivery of a threshing machine
at an appointed time, for the purpose of threshing his wheat
out in the field, of which the defendant had notice; in con-
sequence of delay in delivering the machine the wheat was
injured by exposure to the weather and the plaintiff was ob-
liged to carry and stack it and dry it in a kiln; in an action
for the delay in the delivery of the machine it was held, ex-
pressly in accordance with the rule laid down in Hadley v.
Baxendale, that the plaintiff was entitled to damages in re-
spect of the injury to the wheat and the additional expenses
incurred (d). The plaintiff having contracted with a third
party to repair a machine by an appointed time, contracted
with the defendant for a necessary part of the machine to
be suppled at a time which would enable him to complete
the repair, but he did not inform the defendant of the special
purpose for which he required it; the defendant fail-d in
supplying the piece of machinery according to his coutract,
in consequence of which the plaintiff failed in completing
the repairs which he had contracted to do and was compelled

(a) Hamlin vy. Great Northern Ry. (b) Borries v. Hutchinson, 18 C. B.
Co., 1 H. & N. 408; 26 L.J. Ex.20; N.S. 445; 34 L. J.C. P. 169.
and see Phelps v. London § North- (c) Borries v. Hutchinson, supra.

Western Ry. Co,, 19 C. B. N. 8. 321; (ad) Smeed v. Foord, 28 L. J.Q B.
34.L. J. UC. P. 259. 178; LE. & E. 602.
CHAP, V. DAMAGES. 573

to pay damages for his breach of contract ; it was held that,
according to the rule laid down in Hadley v. Baxendale, he
could not recover such damages against the defendant (a).

It has been suggested, as an addition to the rule laid down
in Hadley v. Bawendale, that after the contract has been
made, but in the course of the performance of it and before
it is actually broken, one of the parties may give notice to
the other of the special consequences which will happen
upon his breach of contract, and so fix him with the damages
which he may occasion by persisting in breaking the con-
tract after such notice (6).

An agreement may contain a promise or undertaking of a Contracts
certain act or matter, and also an express stipulation that in With ia-+
case of a breach of the promise or undertaking a fixed sum mage mee
of money shall be payable; which sum will be considered ° ,
in law, according to the nature of the case, either as liqui-
dated damages recoverable in full, or as a penalty imposed
to secure the performance of the contract.

Familiar instances of liquidated damages occur in build-
ing contracts in which the builder contracts to complete the
building in an appointed time or to pay a stipulated daily or
weekly sum for delay beyond the time appointed (c) ; and in
charterparties in which a certain sum is agreed to be paid
daily for demurrage (d). A familiar use of a penalty occurs
in bonds, in which instruments the penalty to be forfeited
upon a breach is generally fixed at double the amount of the
sum secured by the condition of the bond (e).

A contract may merely stipulate that in case of one of the
parties doing a certain act he shall pay a fixed sum of money,
without any absolute promise on his part respecting such
act ; the act in question is then not in itself a breach of the
contract, but merely the condition precedent on which the
money becomes payable, and the only breach of such con-

(a) Portman v. Middleton, 4 C. B. (c) Fletcher v. Dyche, 2 T. R. 32;
N.S. 322; 27 L. J.C. P. 231. Duckworth vy. Alison, 1 M. & W.
(6) Per Bramwell, B., Geev. Lan- 412.
cashire and Yorkshire Ry. Co., 30 L. (d) See per Buller, J., Fletcher v.

J. Ex. 11,16; and see Bramley v. Dyche, 2 T. R. 32, 37.
Chesterton, 27 L. J. C. P. 28. (e) See ante, p. 82.
Liquidated
damages
and penal-
ties.

574 CHAP. V. DAMAGES.

tract is in not paying the money (a). A farming lease con-
tained a covenant that the lessee would not sell or carry
away from the demised premises any hay, straw, or manure,
without the consent of the lessor, under the increased rent
of £10 for every ton so sold or carried away; in an action
upon that covenant it was alleged as a breach that the lessee,
without the consent of the lessor, did sell and carry away
hay and straw from the demised premises ; it was held that
the breach was not well assigned because the lessee had a
right so to carry away the hay and straw upon payment of
the increased rent, and the claim of the lessor was not for
unliquidated damages for a breach of covenant, but only for
the increased rent (0).

The above distinctions in contracts with a stipulated sum
payable on doing a certain act have been pointed out by
Bramwell, B., as follows :—‘‘ There are three classes of co-
venants of this sort: first, covenants not to do particular
acts, with a peualty for doing them ;—secondly, covenants
not to do an act, with liquidated damages to be paid if the
act is done ;—and, thirdly, covenants that acts shall not be
done, unless subject to a certain payment”? (c).

Where the contract contains an absolute covenant or pro-
mise respecting a certain matter, together with a stipulation
for a fixed sum to be paid on a breach, as a penalty or liqui-
dated damages according to the nature of the case, upon a
breach of the contract the plaintiff, in general, has an elec-
tion ; he may either bring an action for the fixed sum stipu-
lated for in that event, or bring an action for the specific
breach of the covenant or promise without reference to the
sun. stipulated for, and in the latter form of action the plain-
tiff may recover the damages assessed by the jury, which
may be greater or less than the stipulated sum (d). A lessee
covenanted that he would not lop any tree and if he did that

(a) Legh v. Lillie, 6 H.& N.165; Peers, 4 Burr. 2225, 2228 ; Harrison

30 L. J. Ex. 25. v. Wright, 13 East, 343; Pinkerton
(b) Legh v. Lillie, supra. v. Caslon, 2 B. & Ald. 704; Winter
(ce) Legh v. Lillie, 6 H. & N. 165, v. Trimmer, 1 W. Bl. 395; and see

171; 30 L. J. Ex. 25, 28. per Sir E. Sugden, L. J. 0. ; French

(d) Per Lord Mansfield, Lowe v. vy. Macale, 2 Dru. & W. 269, 274.
575

CHAP. V. DAMAGES.

he would pay a penalty of £20 besides the value of the tree ;
in an action on that covenant it was charged as a breach that
the lessee lopped the trees, but no breach was charged in
non-payment of the stipulated money ; it was held that under
the breach as framed the plaintiff was seeking to recover un-
liquidated damages, and that, upon a verdict in his favour, he
was not entitled to recover the stipulated amount, but only
the damages found by the jury (a).

By the common law a sum of money contracted to be paid Relief
upon a breach of the contract was recoverable in full accord- ee
ing to the terms of the contract, whether it was in the na-
ture of liquidated damages or of a penalty, and no distinc-
tion was made between them ; but in the case of a penalty,
the Courts of Equity have always exercised a jurisdiction to
relieve against the judgment at law upon payment to the
plaintiff of the sum really due, or the amount of damages
actually sustained by the breach of contract ; and the statute
law has placed a similar restriction upon the claim of the
plaintiff in the Common Law Courts (0).

Common money bonds are now regulated, in this respect, Common
by the statute 4 & 5 Anne, c.16. By s. 12 of that Act aa
payment made post diem may be pleaded in bar to an action
on such bond, and is as effectual a bar thereof as if the
money had been paid at the day and place according to the
condition of the bond; and by s. 13 of that Act combined
withthe Common Law Procedure Act, 1860, 23 & 24 Vict. c.

126, s. 25, payment into Court of the principal and interest
due may be made and pleaded in any action upon such
bonds (c).
Bonds with special conditions, and all agreements and Bondswith

. . 7 ]
covenants with a penal sum to be forfeited on breach, are ov Gitions

per Littledale, J., Davies v. Penton,

(a) Hurst v. Hurst, 4 Ex. 571; 19
L. J. Ex. 410, explained in Legh v.
Lillie,6 H. & N.165 ; 30 L. J. Ex. 25.

(b) Per Lord Mansfield, Lowe v.
Peers, 4 Burr. 2225, 2228; Wyllie
vy. Wilkes, 2 Doug. 519, 522; see
Seton v. Slade, 7 Ves. 265, 274; Astley
vy. Weldon, 2 B. & P. 346, 350, 354. ;

6B. & C. 216, 224; per Bramwell, B.,
Betts v. Burch, 4 H. & N. 506, 510;
28 L. J. Ex. 267, 269; Slomanv.
Walter, 1 Bro. C. C. 418; and the
notes to 8. C. in 2 White & Tudor, L.
C. 8rd ed. 991.

(c) See ante, p. 473.
and agree-
ments
with
penalty,

576 CHAP. V. DAMAGES.

regulated by the statute 8 & 9 Wm. III. c. 11 (a). By that
statute, s. 8, it is enacted “ that in all actions upon any bond,
or on any penal sum for non-performance of any covenants,
or agreements, in any indenture, deed, or writing contained,
the plaintiff may assign as many breaches as he shall think
fit, and the jury, upon trial of such action, shall assess not
only such damages and costs of suit as have heretofore been
usually done in such cases, but also damages for such of the
said breaches so to be assigned, as the plaintiff upon the
trial of the issues shall prove to have been broken, and that
the like judgment shall be entered on such verdict as here-
tofore hath been usually done in such like actions; and if
judgment shall be given for the plaintiff on a demurrer, or
by confession, or nihil dicit, the plaintiff upon the roll may
suggest as many breaches of the covenants and agreements
as he shall think fit, upon which shall issue a writ to the
sheriff of that county where the action shall be brought, to
summon a jury to appear before the justices or justice of
assize or nisi prius of that county (or now by the 3 & 4 Wm.
IV. c. 42, s. 16, before the sheriff), to “ inquire of the truth
of every one of those breaches, and to assess the damages
that the plaintiff shall have sustained thereby.’ The section
then provides, that in case the defendant shall pay into
Court the damages assessed for the breaches, together with
the costs of suit, a stay of execution of the said judgment
shall be entered upon record ; or if the plaintiff shall be paid
or satisfied by execution all such damages so assessed to-
gether with his costs, the defendant shall be thereupon dis-
charged from the said execution, which shall likewise be
entered upon record; “but, notwithstanding, in each case
such judgment shall remain as a further security to answer
to the plaintiff such damages as may be sustained for further
breach of any covenant in the same indenture, deed or
writing contained, upon which the plaintiff may have a scire
facias upon the said judgment.”

Accordingly the judgment is entered in the usual form for
the whole penalty and costs, with the addition “that the

(a) 1 Wms. Saund. 58; per Bramwell, B., Betts v. Burch, 4 H. & N. 506,
510; 28 L. J. Ex. 267, 269.
CHAP. V. DAMAGES. 577

plaintiff have execution against the defendant of the damages
aforesaid to £ by the jury assessed according to the sta-
tute” (a). But the obligee of a bond cannot recover more
than the amount of the penalty upon a breach of the condition
of the bond (0).

At the common law, the plaintiff, in claiming the penalty,
could only assign a single breach, otherwise his pleading
was open to the objection of duplicity, because he claimed the
same thing, namely, the penalty in respect of each breach (c) ;
but the above statute, 8 & 9 Wm. III. c. 11, enables him
to assign as many breaches as he shall think fit. The pro-
ceeding under the statute is compulsory ; the plaintiff must
either assign or suggest breaches, as the case may be,
and can recover damages only for the breaches assigned or
suggested (d). Where the sum fixed as payable upon breach
of the agreement is in its nature a penalty, the parties can-
not evade the operation of the statute by calling it ‘“ liqui-
dated damages,” or by any expression of intention that it
should be recovered in full (e).

Courts of Equity will, im general, enforce a contract by Specific
specific performance or injunction, notwithstanding it is by ee
the same contract agreed that a fixed sum shall be paid of eon.
upon a breach, unless it appears to be the intention of the penalty.
contract that the party is to be at liberty to do the act if he
pays the money (f). Thus, Courts of Equity will enforce
specifically an agreement embodied in a penal bond, condi-
tioned to make a settlement of land(g); and a contract for the
sale of land, with a stipulation that if either party break
the contract he shall pay £100 (h); and a covenant not to

 

(a) See Chitty’s Forms, 10th ed., Ex. 267, 269; Kemble v.

Farren,

544.

(6) Wilde v. Clarkson, 6 T. R. 308 ;
Branscombe vy. Scarbrough, 6 Q. B.
13; and see Bird v. Randall, 3 Burr.
1345 ; 1 W. Bl. 387.

(ec) Manser’s case, 2 Co. Rep. 4.4;
Cornwallis v. Savery, 2 Burr. 772.

(d) Roles v. Rosewell, 5 T. R. 538 ;
Hardy v. Bern, 5 T. R. 636; Walcot
v. Goulding, 8T. R. 126.

(e) See Davies v. Penton, 6 B. & C.
216; per Bramwell, B., Betts v.
Burch, 4H. & N. 506, 511; 28 L. J.

6 Bing. 141; see post, p.579.

(f) Per Sir E. Sugden, L.C., French
vy. Macale, 2 Dr. & Wa. 269, 272,
284; and see Coles v. Sims, 5 De G.
M.&G.1,9; 23 L. J. C. 258, 259;
Howard v. Woodward, 34 L. J. C.
47.

(g) Hobson v. Trevor, 2 P. Wms.
191; Chilliner v. Chilliner, 2 Ves.
sen. 528; Prebble v. Boghurst,
1 Swan. 309, 328 ; Jeudwine v. Agate,
3 Sim. 141.

(h) Howard v. Hopkyns, 2 Atk. 371.

2p
Construc-
tion of
contracts
as to liqui-
dated da-
mages and
penalty.

578 CHAP. V. DAMAGES.

build on certain land subject to a penalty for breach of the
covenant (a). A solicitor’s clerk, having agreed with his
employer not to carry on the business of a solicitor within
fifty miles of a given place, executed a bond, the condition
of which, after reciting such agreement, provided that if he
did carry on the business within the specified distance, and
paid the sum of £1000 as liquidated damages, the bond
should be void; the Court granted an injunction to re-
strain the clerk from practising within the specified dis-
tance, the employer undertaking not to sue the clerk upon
the bond (8).

If the plaintiff has stipulated for a certain performance,
and in case of breach for the payment of liquidated damages,
he cannot claim both the liquidated damages, and also an
injunction to restrain the breach (c); and if the defendant
has stipulated for the option either to perform the contract,
or to pay a sum of money instead of performance, he can-
not be compelled in equity to specific performance (d).

The distinction in legal effect between liquidated damages
and a penalty, namely, that the amount of the former may
be recovered in full, while the latter is only a security for the
damages actually sustained, renders it important to deter-
mine whether, in any particular contract, a sum agreed upon
to be paid upon a breach is of the one kind or of the other.
This is a question of law, depending upon the matter of the
agreement, and is not affected by the terms in which the
parties have expressed their intention as to the payment of
the sum upon breach of the contract; for the question pre-
supposes such intention to be expressed, and the legal effect
of the statute upon a penalty cannot be avoided by any
expression of intention to the contrary ; whether there ap-
pears in the contract an intention that a fixed sum shall be

(a) Coles vy. Sims, 5 De G.M. & 158, 778; 30 L. J. Ex. 348; Sainter
G.1; 23 L. J. C. 258. v. Ferguson, 1 Mac. & G. 286; 19 L.
(b) Howard v. Woodward, 34L.3J. J.C. 170; Fox vy. Scard, 33 Beay.
C. 47 ; and see Fox v. Scard,33 Beay. 327, 328.
327; Clarkson v. Hdge, 33 Beav. 227 ; (d) Woodward v. Gyles, 2 Vern.
33 L. J. C. 443. 119; Magrane v. Archbold, 1 Dow.
(c) Carnes v. Nisbett, 7H. & N. 107; Sainterv. Ferguson, supra.
CHAP. V. DAMAGES. 579

payable on a breach, is a preliminary question depending
upon the construction of the contract (a).

An agreement contained a clause, that if either party
should neglect or refuse to fulfil the said agreement, or any
part thereof, or any stipulation therein contained, such party
should pay to the other party the sum of £1000, to which
sum it was thereby agreed that the damages sustained by any
such omission, neglect, or refusal should amount, and which
sum was thereby declared by the parties to be liquidated and
ascertained damages, and not a penalty or penal sum or in
the nature thereof; it was held, notwithstanding those ex-
pressions, that the sum was in its nature a penalty, and,
consequently, the plaimtiff was entitled only to the damages
actually sustained (5) And in numerous other cases the
courts have held the sum stipulated to be paid on breach of
the agreement to be, from the nature of the case, a penalty,
notwithstanding the strongest language showing an inten-
tion that it should be paid in-full as hquidated damages (c).

On the other hand, there are numerous cases in which the
parties have used the term “ penalty,’ which seems prima
facie to import a forfeiture rather than a valuation of da-
mage ; yet the courts have held that the stipulated sum was
from the nature of the case to be considered as liquidated
damages and recoverable in full (d).

Bonds present no difficulty so far as regards the penal
sum in which the obligor is bound, the form of the instru-
ment clearly denoting that such sum is a penalty to se-
cure the matter contained in the condition. The action
on a bond is always, in point of form, for the recovery of
the penal sum ; and, therefore, though the plaintiff is re-
stricted by the statute to the recovery of the damages sus-
tained by reason of the breaches alleged and proved, he can

(a) See ante, p.573 ; per Bram- 390; Davies v. Penton, 6 B. & C. 216 ;
well, B., Betts v. Burch, 4H.&N. Horner v. Flintoff, 9M. & W. 678;
506, 511; 28 L. J. Ex. 267, 270; Reindel v. Schell, 4 C. B. N. 8. 97;
Mercer v. Irving, E. B. & E. 563; 27 27 L. J.C. P. 146.

L. J. Q. B. 291; and see per Erle, J., (d) Sainter v. Ferguson, 7 C. B.
Reynolds v. Bridge,6 EH. & B. 528, 716; Leighton v. Wales, 3M. & W.
543; 26 L. J. Q. B. 12, 17. 545: Sparrow v. Paris, 7H. & N.

(b) Kemble v. Farren, 6 Bing. 141. 594; 31 L. J. Ex. 137; and see
(ce) Boys v. Ancell, 5 Bing. N.C. Smith v. Dickenson, 3 B. & P. 630

2Pe2
Rules for
distin-
pushing
etween
penalty and
liquidated
damage :—
where the
contract is
for a matter
of certain
value,

rb

580 CHAP. V. DAMAGES.

in no case recover more than the penalty (a). But if a sum
is named in the condition of a bond as payable upon a
breach, the question may arise respecting that sum, and
will be subject to the same principles of Jaw as on contracts
in other forms (0).

A cognovit or warrant of attorney to enter up judgment
for a fixed sum with a defeasance conditioned for the per-
formance of certain matters is open to the same question ;
but those instruments are held not to be within the above-
mentioned statute of 8 & 9 Wm. III. requiring the sugges-
tion of breaches ; the courts of common law, of their own
proper jurisdiction, restrict the execution under them to the
just amount(c).

Where the contract is for a matter certain in value, as
the payment of a debt or liquidated money demand, and
the sum fixed to be paid on breach is greater or less than
the amount of such debt or demand, the sum is, in general,
to be treated as a penalty by which the contract is secured,
and not as liquidated damages (d). But where a mortgage
debt was made payable by instalments, with a proviso that
in case the instalments were not punctually paid, the full
amount of the debt should immediately become payable, it
was held that the proviso was not in the nature of a penalty,
and the Court of Chancery refused to grant relief against it (e).
So, where a mortgagee agreed to take a smaller sum in dis-
charge of the whole debt upon payment on a given day, the
mortgagor was held not to be entitled to any relief in equity
against default in payment on the day fixed ( f).

Where a mortgage is made reserving a certain rate of in-
terest, with a proviso that upon default in punctual payment

(a) See ante, p. 577; Wilde v. Clark-
son, 6 T. R. 393; Branscombe v.
Scarbrough, 6 Q. B. 13; and see
Bird v. Randall, 3 Burr. 1345 ; 1 W.
Bl. 387.

(4) See Roper vy. Bartholomew,
12 Price, 797 ; Ranger v. Great West-
ern Ry. Co., 5 H. L. C. 72, 105; Chil-
liner v. Chilliner, 2 Ves. sen. 528;
Howard vy. Woodward, 34 L. J. C.
47.

(c) Charrington vy. Laing, 6 Bing.

242; Shaw v. Marquis of Worcester,
6 Bing. 385; Chitty’s Practice, 12th
ed., 948. :

(d) Astley vy. Weldon, 2B. & P.
346, 354; Kemble v. Farren, 6 Bing.
141, 148; Davies v. Penton, 6 B. &
C. 216, 223

(e) Sterne v. Beck, 1DeG. J. &
8. 595; 32 L. J. C. 682.

(f) Ford v. Earl of Chesterfield,
19 Beav. 428 ; see Thompson v. Hud-
on, L, R. 2 Eq. 6'2.
CHAP. V. DAMAGES. 581

a higher rate of interest shall be paid, the increase of in-
terest is considered as a penalty, and courts of equity re-
licve against a forfeiture, upon the debtor paying the in-
terest at the lower rate, with interest upon it for the delay,
so as to put the other party in the same position as if it had
been paid punctually (a); but if a mortgagor agrees to
pay a certain rate of interest, and the mortgagee agrees to
take less if it is paid punctually, that is a valid agreement
against which no relief is given (b). Ina contract for the
sale of land it was agreed that the purchaser should pay
interest on the purchase-money at 4 per cent. from the
time of taking possession until a fixed day, and after that
day at 5 per cent. if the purchase-money should not then
be paid, and after another fixed day at 8 per cent.; it was
held that the increased interest was not in the nature of a
penalty, but must be paid in full (c).

Where the contract is for a matter of uncertain value, a Where the
sum fixed to be paid on breach may be liquidated damages, foals
and not a penalty, as in the following cases :—The defendant oftmeertain
promised the plaintiff not to marry any other person than
her, and, if he did, to pay her £1000 within three months ; the
plaintiff was held entitled to recover the whole sum as liqui-
dated damages (d). A builder contracted to complete cer-
tain building work in a limited time, and that, if he did not,
he would pay £10 for every week after the expiration of the
time limited until it should be completed ; it was held that
such weekly payments were recoverable in full as liquidated
damages (e). On a guarantee that a certain vessel should
sail with or before any other vessel then in the berth, “un-
der penalty of forfeiting one-half of the freight,” another
vessel having sailed first, it was held that one-half of the
freight could be recovered as liquidated damages (/).

The excessive amount of the sum payable on the breach
of an agreement is not of itself conclusive of its character

(a) Nicholls v. Maynard, 3 Atk. 2 Kq, 221, 224,

519, 520; Seton v. Slade, 7 Ves. 265, (c) Herbert v. Salisbury and Yeovil
273. Ry. Co., supra.
(2) Ib. ; Bonafousv. Rybot, 3 Burr. (d) Lowe v. Peers. 4 Burr. 2225

1870, 1375; Davidson’s Prec. Conv., (e) Fletcher v. Dyche, 2T. R. 82.
2nd edit. v. ii. p. 585; Herbert v. (f) Sparrow v. Paris, TH. &N,
Salisbury and Yeovil Ry. Co.,L. Rep. 594; 31 L. J. Ex 137
582 CHAP. V. DAMAGES.

Rules for of a penalty ; for where the damages are uncertain the par-

distin- ; : 5 ‘

guishing ties may assess them at their own valuation, and there is no

fone standard by which they can be pronounced excessive (a).

damage, Upon covenants in a lease binding the lessee not to plough
meadow land or the like, and if he does to pay an increased
rent for every acre of such land converted into tillage, the
increased rent is recoverable in full (b). But upon a covenant
in a lease not to burn any part of the lands demised under a
penalty of £10 per acre, to be recovered as the reserved rent
for every acre so burned; the stipulated sum was held to be
a penalty to secure the fulfilment of the covenant and an in-
junction was granted to restrain a breach; and it was ob-
served that the intention not to allow the act appeared from
one sum being payable, and not a continued reservation of
additional rent as in the above cases (c).

Sunilarly, in policies of marine insurance the parties may
agree upon the value to be put upon the ship or goods in-
sured, which sum the insured becomes entitled to receive
upon a total loss, or a proportionate part of it upon a partial
loss, irrespectively of the real value of the subject insured ;
notwithstanding such contracts are generally described as
contracts of indemnity (d). And in other contracts of indem-
nity the amount of damages may, in general, be fixed by
agreement in the contract (c).

Wherethe | Where the contract provides for the performance of se-
contract i veral matters of various kinds, some capable of accurate
matters. valuation and some not, and a fixed sum is agreed to be
paid upon breach of the contract in any particular, such
sum is, in general, to be regarded as a penalty to secure
the performance of the contract; but, if all the several
matters stipulated for are of uncertain value, the sum fixed

(a) Per Lord Eldon, O.J., Astley (c) Per Sir E. Sugden, L. C. Ix,
v. Weldon, 2 B. & P. 346, 351; per French v. Macale, 2 Dr. & Wa. 269.
Coleridge, J., Reynolds v. Bridge, 6 E. (d) Irving v. Manning, 6 C. B. 391.
& B. 528, 540; 26L. J. Q. B. 12, 16. (e) Ib. p. 422; and see as to the

(b) Lowe v. Peers, 4 Burr, 2225, measure of damages recoverable on a
2228; Woodward v. Gyles, 2 Vern. valued policy, Bousfield v. Barnes, 4
119; Birch v. Stephenson, 3 Taunt. Camp. 228; Bruce v. Jones, 1H. & C.
469; Farrantv. Olmius,3 B.& Ald. 769; 32 L. J. Ex. 132; as to what is
692; Rolfe v. Peterson, 2 Bro. P. C. a valued policy, see Wilson v. Nelson,
436; Jones v. Green, 3 Y. & J. 298. 5 B.& 8. 354; 33 L. J. Q. B. 220.
CHAP. V. DAMAGES. 583

as payable upon a breach may be regarded as liquidated
damages and may be recoverable in full (a).

A contract was made between the manager of a theatre and
an actor for the services of the latter during a certain period,
containing various stipulations as the times and manner of
the performances, and the regulations of the theatre, and the
payment of his salary at so much per night, and containing
a clause that if either party should neglect to fulfil the said
agreement, or any part thereof, such party should pay to the
other the sum of £1000; it was held that the sum was a
penalty, and not liquidated damages, because it was not
limited to be paid upon breaches of an uncertain nature and
amount, but extended to the breach of any stipulation by
either party, including the neglect to pay a day’s salary (6).
By an agreement the defendant agreed to grant a lease, and
the plaintiff agreed to execute a counterpart and pay the ex-
penses, and for the true performance of the agreement each
of the parties bound himself in the penalty of £500 to be re-
covered against the defaulter as liquidated damages ; it was
held that this sum was a penalty, because it was annexed to
the non-payment of the expenses as well as the non-execu-
tion of the lease on the part of the plaintiff, and therefore
the plaintiff could not recover it in full against the defendant
upon a refusal to grant the lease (c). An agreement was
made for the purchase of the stock in trade and effects of a
public house at a valuation, the goods to be valued and pos-
session given on or before a fixed day, and containing a
clause, that in the event of either party not complying to
every particular of the agreement he should forfeit and pay
the sum of £50 and all expenses attending the same ; it was
held that the sum named was a penalty and not liquidated
damages (d).

>

(a) Astley v. Weldon, 2 B. & P.
and see Astley v. Weldon, 2B. & P.

(6) Kemble v. Farren, 6 Bing. 141;

346; Davies v. Penton, 6B. & C. 216;
Kemble v. Farren, 6 Bing. 141; Hor-
ner v. Flintoff, 9 M. & W. 678; per
Parke, B., Atkyns v. Kinnier, 4 Ex.
776, 783; per Alderson, B., ib. 784;
per Coleridge, J., Reynolds v. Bridge,
6 E.& B. 528, 541; 26 L. J. Q. B.
12, 16; Betts v. Burch, 4H. & N.
506; 28 L. J. Ex. 267.

346; Beckham v. Drake, 8 M. & W.
846, 853; Reindel v. Schell, 4 C. B.
N.8.97; 27 L. J.C. P. 146.

(c) Boys v. Ancell, 5 Bing. N.C.
390.

(d) Betts v. Burch, supra ; and see
Davies v. Penton, 6 B. & C. 216; see
Reilly v. Jones, 1 Bing. 302.
Interest.

Under con-
tracts at
common
law.

584 CHAP. V. DAMAGES.

Upon agreements for the sale of a trade or business, con-
taining terms restraining the seller from carrying on the
same business within certain limits, or interfermg with the
customers, and other terms of a like kind, intended to secure
the transfer of the business, with a stipulation for the pay-
ment of a fixed sum in case of breaking any of such terms,
such sum is, in general, considered as liquidated damages,
and not as a penalty, and is recoverable in full upon a breach
of the agreement (a).

Interest upon a debt, or money demand, may be payable
under the contract, or it may be recoverable as damages,
either at common law or under the statute 3 & 4 Wm. IV.
c. 42, ss. 28, 29.

By the common law, if the contract is silent respecting in-
terest, it is presumed, in general, that it is not intended to
be paid, and it cannot be claimed either as debt or damages.
Thus, interest is, in general, not recoverable upon a claim
merely for money lent (6) ; or for the price of goods sold (c).
So, upon the principal sum payable under a policy of insur-
ance interest was not recoverable before the statute 3 & 4
Wm. IV. c. 42, s. 29 (d). Interest is not recoverable upon
a debt founded only on a contract implied in law, as for
money received by the defendant for the use of the plaintiff ;
or for money paid for the defendant upon his implied re-
quest (e); or upon the debt created by a foreign judgment (/),
unless the judgment itself carries interest (g). And the same
rule prevails in equity (i).

(a) Green vy. Price, 13M. & W. 695 ;
Rawlinson v. Clarke, 14M. & W. 187;
Galsworthy vy. Strutt, 1 Ex. 659;
Atkyns v. Kinnier, 4 Ex. 776 ; Sainter
v. herguson, 7 C. B. 716; and see 8.
C.19 L.J C.170; Reynolds v. Bridge,
6 E. & B.528; 26L. J. Q. B. 12;
Mercer vy. Irving, B. B. & E. 568 ; 27
L. J. Q. B. 291.

(6) Calton v. Bragg, 15 East, 223 ;
Edwards v. Vere, 5 B. & Ad. 282.

(c) Gordon vy. Swan, 12 East, 419.

(d) Kingston v. . ‘Intosh, 1 Camp.
518; Higgins v. Sargent,2 B. & C.
348.

(e) IWather vy, Constable, 1 B. & P.

306; Tappenden v. Randall, 2B. & P.
467, 472; De Havilland v. Bower-
bank, 1 Camp. 50; De Bernales y.
Fuller, 2 Camp. 426; Maberley v.
Robins, 5 Taunt. 625; Fruhling v.
Schroeder, 2 Bing. N.C. 77 ; Hicks v.
Mareco, 5 C. & P. 498.

(f) Hunter v. Bowes, cited in Hil-
house v. Davis, 1 M. & 8S. 169, 173;
Atkinson v. Lord Braybrooke, 4
Camp. 380.

(g) See M‘Clurev. Dunkin, 1 East,
436; Arnott v. Redfern, 3 Bing. 353,

(h) Bell v. Free, 1 Swanst. 90; and
see Rhodes v. Rrodes, Johns. 633 ; 29
L. J.C, 418.
CHAP. V. DAMAGES. 585

There was no exception to the common law rule by reason
of the instrument being in writing («) ; or by reason of a day
being fixed for payment (b); or by reason of the contract being
under seal (c).

Exceptions to the rule occur with certain mercantile in- Interest
struments, as bills of exchange and promissory notes, upon (oi
which by mercantile usage interest is allowed without any ex- struments.
press reservation or agreement to that effect (d). If a bill or
note is expressly made payable “with interest,” interest may
be claimed according to its terms from the date of the bill or
note (e). If the interest is not expressly made payable in the
instrument, it is recoverable as damages and only from the
time the bill or note becomes due (f). The drawer or in-
dorser can be charged with interest only from the time of his
receiving notice of dishonour (g). If the instrument is pay-
able on demand, interest is recoverable only from the time
of demand, or from the commencement of an action, which
operates as a demand (h).

Upon a contract to give a bill or note, interest is recoverable Upon con-
in the same manner as if the bill or note had been given (‘). etl a
Thus, where goods are sold under a contract to pay for them nte.
by bill and no bill is given, the amount of interest which
would have become due upon such bill, if given, may be re-
covered as part of the price of the goods (j). So, where
money was lent upon the the intended security of a bill of
which the acceptance was refused, it was held that interest
might be charged upon the loan (k). So, upon a guarantee
of the payment of a bill or note interest may be reco-

(a) Pagev. Newman,9 B. & C. 378. Company, 5 B. & Ald. 204.

(b) Gordon v. Swan, 12 East, 419 ; (g) Walker v. Barnes, 5 Taunt.
Foster v. Weston, 6 Bing. 709. 240.

(c) See Higgins v. Sargent, 2B. & (h) Pierce v. Fothergill, 2 Bing. N.
C. 348, 351. C. 167; see ante, p. 455.

(d) Per Abbott, C.J., Higgins v. (2) Sutton v. Morgan, 5 Taunt. 758.
Sargent, 2B. & C. 348, 349. (7) Slack v. Lowell, 3 Taunt. 157 ;

(e) Roffeyv. Greenwell, 10 A.& E. Middleton v. Gill, 4 Taunt. 298;
222; Richards vy. Rickards, 2 B. & Marshall v. Poole, 13 East, 98; Farr
Ad. 447; Hopper v. Richmond, 1 v. Ward, 3 M. & W.25; Davis y.
Stark. 507. Smyth, 8 M. & W. 399.

(f) Gantt v. Mackenzie, 3 Camp. (k) Denton v. Rodie, 3 Camp. 493,
51; and see Murray v. East India 496.
Interest on
bonds.

Interest
upon mort-
gages, etc.

By usual
course of
dealing.

586 CHAP. V. DAMAGES.

vered in the same manner as upon the instrument gua-
ranteed (a).

On a bond in a penal sum conditioned for the payment of
a smaller sum, interest is payable on the sum secured by the
condition without an express reservation of interest, because
the penal sum is regarded as the debt (4); but no greater
sum is recoverable for the principal and interest than the
amount of the penalty (c). Ona single bond without con-
dition interest was not recoverable at common law (d). Where
payment post diem was made by the obligor of a bond and
accepted by the obligee, it was held that, as such payment
was a bar to an action on the bond by the statute of Anne,
the obligee could not afterwards recover interest for the de-
lay in payment, because there remained no right of action to
which such interest could be appended as damages (e).

Upon a mortgage deed containing a covenant to pay the
principal and interest on a certain day, but no covenant to
pay interest after that day, interest after default in payment
on the day cannot be claimed as part of the debt, but may
be recovered as damages, because the deed shows the in-
tention of the parties that it should be a debt bearing in-
terest (f). In an action against the vendor of land for a
breach of contract in not completing the purchase, interest
on the deposit money paid by the purchaser may be claimed
and recovered as special damage for the loss of the use of
the money (g) ; but it cannot be recovered in an action
claiming merely to recover the deposit as money received for
the use of the plaintiff (h).

Interest may become payable according to a customary
course of dealing between the parties, showing that it was

(a) Per Tindal, C.J., Hare v. Rick- (f) 1 Wms. Saund. 201 n. (7);
ards,7 Bing. 254, 256. Atkinson v. Jones, 2 A. & E. 439;
(6) Farquhar vy. Morris, 7 T.R. Price v. Great Western Ry. Co., 16
124; see Cameron v. Smith,2 B. & M.& W. 244.
Ald. 305, 308. (g) De Bernales v. Wood, 3 Camp.
(c) Wilde v. Clarkson, 6 T.R.303; 258; Farquhar v. Farley, 7 Taunt.
M‘Clure v. Dunkin, 1 East, 486; 592; Hodges v. Earl of Litchfield, 1
Branscombe v. Scarbrough, 6 Q.B.13. Bing. N. C. 492.
(d) Hogan v. Page, 1 B. & P. 337; (h) See ante, p. 584; Maberley v.
Foster v. Weston, 6 Bing. 709. Robins, 5 Taunt. 625; Bradshaw v.
(e) Dixon v. Parkes,1 Esp. 110; Bennett, 5 C. & P. 48,
see ante, p. 473.
CHAP. V. DAMAGES. 587

intended by them that interest should be paid (a) ; and even
compound interest may be charged according to a custom-
ary course of dealing (0).

Interest which is reserved or agreed for in the terms of Interest as
the contract is recoverable as a debt (). Interest which is a
not so reserved or agreed for is not a debt, but is recoverable
only as damages ; accordingly, it was held that interest on
an overdue bill of exchange, which did not in terms reserve
interest, could not be added to the amount of the bill, so as
to constitute a good petitioning creditor’s debt in bank-
ruptcy (d). A tender of a debt duly made prevents any
claim for interest arising after the tender (e).

By the statute 3 & 4 Wm. IV. c. 42, s. 28, it is enacted Interest
“that upon all debts or sums certain, payable at a certain Unde the,
time or otherwise, the jury on the trial of any issue or any aul
inquisition of damages, may, if they shall think fit, allow “~~
interest to the creditor at a rate not exceeding the current
rate of interest from the time when such debts or sums cer-
tain were payable, if such debts or sums be payable by virtue
of some written instrument at a certain time, or if payable
otherwise, then from the time when demand of payment
shall have been made in writing, so as such demand shall
give notice to the debtor that mterest will be claimed from
the date of such demand until the term of payment ; pro-
vided that interest shall be payable in all cases in which it
is now payable by law.”

Interest under this statute can be claimed only through
the intervention and allowance of a jury. Thus, the plain-
tiff in an action, having agreed to refer his claim without any
stipulation for the referee to allow the interest which a jury
might have given him, was held to have lost his claim to
it(f). So, a mere claim for interest under the statute was

(a) Bruce v. Hunter, 3 Camp. 467; W. 723.

Denton v. Rodie, 3 Camp. 493, 496 ; (d) Cameron v. Smith, 2 B. & Ald.
Gwyn v. Godby, 4 Taunt. 346. 805; and see Dixon v. Parkes, 1 Esp.
(6) Bruce v. Hunter, supra; and 110; cited ante, p. 586; Churcher v.
- see Eaton v. Bell, 5 B. & Ald. 34. Stringer, 2 B. & Ad. 777.
(ce) Herries v. Jamieson, 5 A (e) Dent v. Dunn, 3 Camp. 296.
553; Hudson vy. Fawcett, 7 M.& G. (f) Berrington v. Phillips, 1 M. &

348; Nordenstrom v. Litt,13 M.& W. 48.
Interest
upon judg-
ment debts.

Interest
proveable
in bank-
ruptcy.

588 CHAP. V. DAMAGES.

held not to be a debt for which a defendant could be held to
bail (a). The jury may, if they think fit, refuse to allow
interest (b).

A letter asking for the loan of a sum of money until a
specified day, which was acceded to by lending the money,
was held not to constitute a debt payable by virtue of a writ-
ten instrument within the meaning of the statute, because
the writing alone did not create the coutract (c). Over-
charges exacted by a carrier for the carriage of goods create
a debt which is sufficiently certain for the allowance of
interest after a demand in writing under the statute (d).
Interest payable by the terms of a written instrument at a
certain time is a debt upon which the jury may, if they think
fit, allow interest (e).

The statute 1 & 2 Vict. c. 116, s. 17, enacts “ that every
judgment debt shall carry interest at the rate of four pounds
per centum per annum from the time of entering up the judg-
ment until the same shall be satisfied, and such interest
may be levied under a writ of execution on such judgment.”
A judgment against the plaintiff for costs carries interest
under this section (f).

In the case of bankruptcy it is provided by the Bank-
rupt Law Consolidation Act, 12 & 13 Vict. c. 106, s. 180
(following the language of the 3 & 4 Wm. IV. c. 42, s. 28
cited above) “that upon all debts or sums certain, payable at
a certain time or otherwise, whereupon interest is not re-
served or agreed for, and which shall be overdue at the filing
of the petition for adjudication of bankruptcy and proveable
thereunder, the creditor shall be entitled to prove for inter-
est, to be calculated at a rate not exceeding four pounds per
centum per annum up to the date of the filing of such peti-
tion from the time when such debts or sums certain were
payable, if such debts or sums be payable by virtue of some
written instrument at a certain time, or if payable otherwise,

(a) Callum v. Leeson, 2 C. & M. (d) Edwards v. Great Western Ry.
406. Co., 11 C. B. 588.

(b) Attwood v. Taylor,1 M. & @. (e) See Attwood v. Taylor, 1M. &
279; see per Bayley, J., Cameron vy. G. 279.
Smith, 2B. & Ald. 305, 308. (f) Pitcher v. Roberts, 2 Dowl.

(c) Taylor v. Holt, 3 H.& C.452; N.S. 394; Newton v. Conyngham, 17
34 L. J. Es. 1, L. J.C. P. 288,
CHAP. V. DAMAGES. 589

then from the time when demand of payment shall have been
made in writing, so as such demand shall give notice to the
debtor that interest will be claimed from the date of such
demand until the time of payment.”

Upon contracts for the:sale of goods the breaches for Damages
which damages are recoverable may be, on the part of the ee
buyer, in not,.paying the price, or not accepting the goods, of sale of
and on the part of the seller, in not delivering the goods ac- a
cording to the contract.

In an action for not paying the price of goods sold the For not

amount recoverable is, in general, the price agreed upon in frye" -
the contract; the damages merely for detaining the price
beyond the day appointed for payment are nominal (wu).
Where by the terms of the contract the goods are to be paid
for by a bill of exchange and the bill is not given, interest
may be recovered upon the amount of the bill, as if it had
been given, as part of the price of the goods (b). If the
goods have been sold with a warranty, the buyer on being
sued for the price may give evidence of the breach of war-
ranty in reduction of damages, and the contract price will be
reduced by the diminution in value owing to the defect war-
ranted against (¢). But the buyer cannot, in further reduc-
tion of the price, give evidence of special damages caused by
the breach of warranty, though he might be entitled to re-
cover such damages in an action upon the warranty (@).

The measure of damages in an action for not accepting For not ac.
goods under a contract of sale is the difference between the fae ie
contract price and the market price of similar goods at the
time when they ought to have been accepted (e). The
buyer cannot avoid the consequences of a falling market, by
merely giving notice of his intention not to accept the goods

(a) See ante, p. 472, 567.
(b) Marshall v. Poole, 13 East, 98 ;

858; Rigge v. Burbidge, 15M. & W.
598.

Farr v. Ward, 3 M. & W. 25; Davis

v. Smyth, 8 M. & W. 399; see ante,

p. 585.

(c) Street v. Blay, 2 B. & Ad. 456 ;
Allen v. Cameron, 1 C. & M. 832;
Poulton v. Lattimore, 9 B. & C. 259.

(d@) Mondel v. Steel, 8 M. & W.

(e) Boorman vy. Nash, 9 B. & C.
145; Phillpotts v. Evans, 5 M.& W.
475; Barrow v. Arnaud, 8 Q. B. 595,
610; and see as to damages for not
accepting shares Stewart vy. Cauty,
8 M. & W. 180; Pott vy. Flather,
16 L. J. Q. B. 366.
Damages
for not de-
livering
goods under
contract of
sale.

bt

590 CHAP. V. DAMAGES.

at the time appointed ; but the damages are measured by the
market price at that time notwithstanding such notice (a).
If there is no difference proved between the contract price
and the market price, only nominal damages can be re-
covered (b).

In an action for not delivering goods under a contract of
sale, the price remaining unpaid, the measure of damages is
the difference between the contract price and the market
price at the time appointed for delivery (c). And the
damages are to be measured by the market price at that
time, notwithstanding that the seller may have before given
notice of his intention not to deliver the goods (d). Where
the property in the goods has passed under the contract, and
the seller has been guilty of a wrongful conversion of the
goods before delivery, as by reselling them, so that he could
not recover the price, the buyer cannot by suing for the
wrongful conversion recover greater damages than in an
action for the breach of contract in not delivermg the
goods (ec). But if, after delivery of possession of the goods
to the buyer, the seller wrongfully retakes the goods, the
buyer may recover the full value in an action for the wrong-
ful taking, the seller having his remedy for the price under
the contract (f). Where there is no difference between the
contract price and the market price at the time for delivery,
the damages for not delivering the goods are only nomi-
nal (g).

If the price has been paid, the buyer is entitled to recover
the full market value of the goods at the time appointed for
delivery ; and so also, if the price has been paid by a bill
which is not due and payable until after the time appointed

(a) Phillpotts v. Evans, supra;
Ripley v. M‘Clure, 4 Ex. 345; and
see Leigh v. Paterson, 8 Taunt. 540;
ante, p. 463.

(b) See Valpy v. Oakeley, 16 Q. B.
911; 20 L. J. Q. B. 380.

(ec) Gainsford v. Carroll, 2 B.& C.
624; Startup v. Cortazzi, 2 C. M. &
R. 165; Barrow v. Arnaud, 8 Q. B.
595, 609; Josling v. Irvine, 6 H.
N. 512; 30 L. J. Ex. 78; and see a
to shares, Shaw v. Holland, 15 M.

3 C.

&
as
&
W. 136; Tempest v. Kilner, 3 B.

253; Cockerell v. Tan Diemen’s Land
Co., 18 C. B. 454.

(d) Leigh v. Paterson, 8 Taunt.
540; and see Phillpotts v. Evans, 5
M &W. 475; ante, p. 463.

(e) Chinery v. Viall, 5 H. & N.
288 ; 29 L. J. Ex. 180.

(f) Stephens v. Wilkinson, 2 B. &
Ad. 320, Gillard v. Brittan, 8 M. &
W. 575.

(9) roe Oakeley, 16 Q. B. 941 ;
20 L. J. Q. 880; see Nichol y.
Bestwick, 28 L z. Ex. 4.
CHAP. V. DAMAGES. 591

for delivery of the goods; but, if such bill is subsequently
dishonoured, the buyer is in the same position as if the price
had not been paid, and can recover only the difference be-
tween the contract price and the market price at the time
appointed for delivery (a). If the price was agreed to be
paid before the time appointed for delivery, and the buyer
makes default in payment, the seller is excused from de-
livery (0).

The buyer cannot, in general, recover, as damages for the
non-delivery of the goods, the loss of profit on a resale made
by him at a higher price than the market price at the time
appointed for delivery (c). The buyer is not entitled to
damages beyond the market value of the goods at the time
appointed for delivery by reason of an increased price having
been agreed upon in consideration of the goods being de-
livered at that time (d).

Where there is no market at which the buyer could pro-
cure goods of the like kind to supply the place of those con-
tracted for, the seller may become liable for the special
damage caused under the circumstances by his default in
delivering the goods. Thus, where goods were sold for the
purpose of selling again, which the seller knew, upon default
in delivering the goods, there being no market at which the
buyer could procure the like goods, he was held entitled to
recover as damages the loss of profit on resales which he was
unable to complete (e). Upon this principle in an action
against a carrier for not delivering goods at the proper time
and place according to the contract, the measure of damages
being the value of the goods at that time and place, if there
is no market at that place to regulate the value, the value
must be ascertained by taking the price at the place of
manufacture, together with the cost of carriage and a rea-
sonable allowance for importer’s profit (f).

(a) Valpy v. Oakeley, 16 Q. B. 112; 33 L. J. Ex. 300; see ante,
941; Griffiths v. Perry, 1 E. & BE.  p. 566.

680; 28 L. J. Q. B. 204. (e) Borries vy. Hutchinson, 18 C. B.
(b) Ib.; and see ante, p. 347. N.S. 445; 84 L. J. C. P. 169; see
(c) Williams v. Reynolds, 34 L. J. ante, p 572.

Q. B. 221; and see Borries v. Hutchin- (f) O'Hanlan v. Great Western

son, 18 O.B. N.S. 445; 34L.5.0.P. Ry. Co.,6 B.& 8. 484; 341. J. Q. B.

169. 154; Rice v. Baxendale,7 H. & N.

(d) Brady v. Oastler,3 H. & C. 96; 30 L. J. Ex. 371; ante, p. 571.
Damages
for non-
delivery of
specific
chattel.

Execution
for specific
delivery of
goods sold
instead of

damages,

592 CHAP. V. DAMAGES.

In an action for the breach of a contract to deliver a
specific chattel the measure of damage, it has been sug-
gested, should be governed by a similar rule to that which
governs the measure of damages for the breach of a con-
tract to pay money. In the latter case, whatever may
be the amount of inconvenience sustained by the plain-
tiff, the measure of damages is limited to the interest of
money only; so in the former case the measure of damages
should by analogy be fixed to the average profit made by
the use of such a chattel (a). Accordingly, in an action
for the non-delivery of a ship at the time contracted for,
the difference between the probable earnings of the ship,
if delivered at the time contracted for, and the actual
earnings when delivered, was held to be a correct mea-
sure of damages (b). Where a specific chattel is con-
tracted for with reference to a special purpose, known to the
person contracting to deliver it, upon default in delivery he
may become liable for special damage caused by the want of
it, according to the rule laid down in the case of Hadley v.
Bazendale (ec).

By the Mercantile Law Amendment Act 1856, 19 & 20
Vict. c. 97, s. 2, it is provided that “in actions for breach
of contract to deliver specific goods for a price in money, on
the application of the plaintiff, and by leave of the judge be-
fore whom the cause is tried, the jury shall, if they find the
plaintiff entitled to recover, find by their verdict what are
the goods in respect of the non-delivery of which the plain-
tiff is entitled to recover, and which remain undelivered ;
what, if any, is the sum the plaintiff would have been liable
to pay for the delivery thereof; what damages, if any, the
plaintiff would have sustained if the goods should be de-
livered under execution, and what damages if not so de-
livered ; and thereupon, if judgment shall be given for the
plaintiff, the court or a judge shall have power to order exe-
cution to issue for the delivery, on payment of such sum,
if any, as shall have been found to be payable by the plain-
tiff as aforesaid, of the said goods without giving the de-

(a) Fletcher vy. Tayleur, 17 C. B. (c) Cited ante, p. 569; see Smeed
21; 25 L. J.C. P. 65. v. Foord, and Portman vy. Middleton,
(6) Fletcher v. Tayleur, supra. cited ante, p. 572.
CHAP. V. DAMAGES. 593

fendant the option of retaining the same upon paying the
damages assessed.”

Upon a contract of sale of a specific chattel with a war- Damages
ranty, the measure of damages for a breach of the warranty joe yon
varies according to whether the chattel has been returned or ohnemraeys
kept. The chattel can be returned only where the contract goods
provides for a return of the chattel in the event of a breach
of warranty, or where the seller agrees to take it back, or
where the sale was effected by a fraudulent warranty and the
buyer has repudiated it on that ground (a). If the chattel
has been returned, the measure of damages is the amount of
price which was paid for it, unless it was returned under
terms agreed upon to a different effect. If the chattel is
kept, the measure of damages is the diminution in value
owing to the defect warranted against (0).

If the buyer has resold the chattel with a similar warranty
at an advanced price, the loss of profit cannot, in general, be
recovered; but it seems that such sale would be evidence
of the value of the chattel if it had been sound; and similarly,
if he has resold it after discovery of the breach of warranty
at a diminished price, such sale would be evidence of the real
value of the chattel (c). The buyer of a horse with a war-
ranty resold it. with a similar warranty, and, having been
sued for a breach, offered the defence of the action to the
seller and, receiving no answer, defended the action himself ;
it was held that he might charge the seller with the costs of
defending the action as special damage caused by his breach
of warranty (d). The buyer may, in some cases, after the
discovery of a breach of warranty and offering the seller to
return the chattel, if he refuses to take it back, charge
against him as damage the expenses incurred in keeping the
chattel for a reasonable time until it can be disposed of (e).

(a) Street v. Blay, 2B. & Ad. 456 ;
Weston v. Downes, Doug. 23; Gom-
pertz v. Denton, 1 C. & M. 207; see
Adams vy. Richards, 2 H. Bl. 5738;
Bannerman v. White, 10 C. B. N.S.
844; 31 L. J. C. P. 28; ante, p. 198,
438,

(6) Caswell vy. Coare, 1 Taunt. 566 ;

Curtis v. Hannay, 3 Esp. 82; Clare
vy. Maynard, 6 A. & E.519; Cox v.
Walker, 6 A. & E. 5238 (a).

(ce): Clare v. Maynard, 6 A. & HB.
519.

(d) Lewis v. Peake, 7 Taunt. 153.

(e) Caswell v. Coare, 1 Taunt. 566 ;
Chesterman vy. Lamb, 2 A. & EK. 129.

2Q
594 CHAP. V. DAMAGES.

If the warranty is fraudulent, the defendant is responsible
for the consequences of the plaintiff acting upon the faith of
the warranty ; thus, where the defendant sold to the plaintiff
a cow, and fraudulently warranted it to be sound, when he
knew it to have an infectious disease, and the plaintiff placed
it with other cows, which caught the disease and died, the
plaintiff was held entitled to recover as damages the value
of all the cows (a).

pee Upon a contract for the sale and delivery of goods of a
of warranty described quantity and quality, the seller is bound to deliver
ae goods answering to the description contracted for, which he
goods. substantially warrants; the delivery of goods of an inferior
description by the seller is a breach of the contract for which
the buyer may maintain an action (b). If the buyer has re-
fused to accept the inferior goods, which he may do, the
measure of damages in such action is the value of goods of
the description contracted for at the time appointed for de-
livery, irrespectively of the contract price, or the difference
between that value and the contract price, accordingly as he
has or has not paid the price. If the buyer has accepted the
goods, the measure of damages is the difference between the
value of goods of the description contracted for and the value
’ of those actually delivered and accepted (c).

If at the time of the sale the seller knew that the buyer
was buying for the purpose of resale, he may also be liable
for the special damage occasioned to the buyer by reason of
his not being able to complete such resale through the in-
feriority of the goods delivered (d). Where the subject of
the sale and warranty was seed-barley of a particular de-
scription, and the buyer resold it with a similar warranty,
and consequently became liable to compensate the sub-pur-
chasers for their loss in using the barley for seed as war-
ranted, it was held that such liability was a consequence of
the breach of warranty which the buyer might claim against
the seller as damages (e).

(a) Mullett v. Mason, 35L.5.C.P. 128; 27 L.J3.0.P.27; Dingle v. Hare,

299; L. Rep. 1 C. P. 559. 7 C0. B.N.8.145; 29L.J.C. P. 143.
(2) Wells v. Hopkins, 5 M.& W.7; (d) See Dingle v. Hare, supra; and

and see Dawson v. Coliis,10 0. B. see ante, p. 572,

523; ante, p. 438. (e) Randall v. Raper, E. B. & EB.

(c) Loder v. Kekule,3 C.B.N.S8. 84; 27 L. J. Q. B. 266,
CHAP. V. DAMAGES. 595

If the buyer, having accepted the goods, is sued for the
price, he may show in reduction of damages the difference
in value between the goods delivered and those contracted
for, and diminish the price by that amount (a). If the
buyer refuses the goods as not answering the description
bought, he may recover the price previously paid as an im-
plied debt for money received for his use (b).

In an action by the purchaser of land against the vendor Damages
for default in completing the purchase by reason of a defect rae
in the title, the purchaser is entitled to recover as damages "4.
the costs of investigating the title and of endeavouring to
procure a good title, including the expense of comparing
deeds, of searching for judgments, and of journeys for that
purpose (¢); and it is sufficient if a liability for such costs
has been incurred, though they have not been paid before
the action (d), if such liability is properly charged in the
declaration (e). He may also recover his deposit money and
interest on the deposit money as special damage (f). If the
purchaser is unable to prove the contract, as for want of a
written memorandum to satisfy the Statute of Frauds, or if
he treats the contract as void or rescinded, he can recover
his deposit as an implied debt for money received to his use ;
but he cannot recover interest upon it in that form of action,
nor can he recover the expenses he has incurred about the
purchase (g). He cannot recover as damages expenses in-
curred by him in the negotiation of the contract or before
the execution of it; nor the expense of a survey of the
estate; nor the expense of a deed of conveyance prepared
before ascertaining the state of the title (h); nor can he re-
cover the costs of raising the purchase money in readiness for
payment, nor interest upon it while lying idle (i); but it

(a) See ante, p. 589.

(b) See ante, p.60; and see Loder
v. Kekule, 3 C. B. N. 8. 128, 139.

(c) Hodges v. Earl of Litchfield,
1 Bing. N. C. 492; Hanslip v. Pad-
wick, 5 Ex. 615.
¥ (d) Richardson v. Chasen, 10 Q. B.

56

(e) Ib.; and see Pritchet v. Boevey,
1C. & M. 775.
(f) De Bernales y. Wood, 3 Camp.

258; Farquhar v. Farley,7 Taunt.
592; Hodges v. Earl of Litchfield,
supra.

(g) Gosbellv. Archer, 2 A. & E.500;
Maberley v. Robins, 5 Taunt. 625;
Bradshaw v. Bennett, 5C. & P. 48.

(k) Hodges v. Earl of Litchfield,
supra.

(i) Hanslip v. Padwick, 5 Ex. 615 ;
Sweetland v. Smith, 1 OC. & M. 585;
see Sherry v. Oke, 3 Dowl. 349.

2Q 2
Damages
oncontracts
for sale of
land,

Damages
on cove-
nants for
title.

596 CHAP. V. DAMAGES.

seems that he may recover for the expenses incurred in pre-
paring, stamping, and entering into the agreement (a).

The purchaser cannot claim the costs of a Chancery suit
brought by him against the vendor for specific performance,
and dismissed for defect of title without costs (6); nor the
extra costs of a Chancery suit brought against him by the
defendant and dismissed with costs (c). The purchaser can-
not claim damages for the loss of his bargain, where the
vendor fails to complete by reason of a defect in his title,
provided the vendor has acted bond fide and had reasonable
ground for supposing that he had a good title (d). But
where the vendor contracts to sell an estate, knowing at the
time that he has no title, he is then liable to make good the
loss of bargain (ec). So also, if he fails to complete from any
other cause than defect of title (f). The purchaser cannot
recover as damages the. profits which would have accrued to
him from a resale of the property which he made before the
title was discovered to be defective, nor the expenses of such
resale, nor the expenses of the sub-purchaser for which he
became liable (y).

If the contract has been completed by an actual convey-
ance of the land sold, and the purchaser, having been evicted
by a claimant with a better title, sues the vendor on the
covenant for title contained in the deed of conveyance, the
measure of the damages is the value of the estate ; thus, in an
action for a breach of the covenant for quiet possession con-
tained in a lease, the lessee having been evicted, the measure
of damage was held to be the value of the unexpired part of
the term together with the amount recovered against the
lessee by the evictor for mesne profits (hk). So, where the
plaintiff, being in possession of premises under a lease, ob-
tained a new lease in reversion with a covenant for quiet

(a) Hanslip v. Padwick, 5 Ex. 615. (e) Hopkins vy. Grazebrook, 6 B. & C.

(b) Malden v. Fyson, 11 Q. B. 292. 31; Robinsony. Hardman, 1 Ex. 850.

(ec) Hodges v. Earl of Litchfield, (7 ) See per Campbell, C. J., Simons
1 Bing. N. C. 492 ; see post, p. 597. vy. Patchett, 7 BE. & B. 568, 572.

(d) Flureau v. Thornhill, 2 W. Bl. (9) Walker v. Moore, 10 B. & C.

1078 ; Pounsett v. Fuller,17 CO. B. 416; and see Hanslip vy. Padwick,
660; 25 L. J. C. P. 145; Sikes yv. supra.

Wild, 1B. & 8. 587; 30 L. J. Q. B. (2) Williams v. Burrell, 1 C. B.
325; 32 id. 376. 402.
CHAP. V. DAMAGES. 597

possession, and it turned out that the lessor had no power to
grant such lease, and the plaintiff took another lease from
the real owner on less favourable terms, the measure of da-
mages was taken to be the difference of value between the
two leases (a). Where an estate was sold and conveyed with
a covenant that it was freehold, and it proved to be copyhold,
the measure of damage for the breach of covenant was held.
to be the difference in value by reason of the difference in
tenure (b). Where the defendant had conveyed land to the
plaintiff and covenanted for a good title, and the plaintiff,
being sued by a claimant under a better title, compromised
the action for a sum of money, the plaintiff was held entitled
to recover that sum and the costs of the action as damages
for the breach of covenant (c).

The costs of an action or other legal proceedings incurred Costs of ac-

by the plaintiff in consequence of a breach of contract by ie Beas
the defendant may in some cases be recovered as special asdamages.
damage. The decision of the Court in which an action or
suit is brought, as to the incidence of the costs, is final and
cannot be questioned by the same parties in another action.
Thus, the purchaser of land, having brought a suit for spe-
cific performance against the vendor which was dismissed for
defect of title without costs, was held not entitled to recover
his costs of suit as special damage in an action against the
vendor for not making a good title, because the adjudication
of the Court of Chancery that the costs should not be paid
by the defendant, could not be disputed in another court (d).
So, it was held that the plaintiff in an action for a breach of
contract could not recover as special damage the extra costs
beyond those taxed and paid to him in a suit in Chancery
which had been brought against him by the defendant for
specific performance of the contract and dismissed with costs,
because the adjudication of the Court of Chancery was con-
clusive as to the amount to which he was entitled (e).

(a) Lock v. Furze, 19 C. B. N.S. (c) Smith v. Compton, 3 B. & Ad.
96; 84 L. J. C. P. 201; 35 46.141; 407.
L. Rep. 1 C. P. 441. (d) Malden v. Fyson, 11 Q. B. 292.

(b) Gray v. Briscoe, Noy. 142. (e) Hodges v. Karl of Litchfield,
598 CHAP. V. DAMAGES.

If the action was brought by or against a third party as a
consequence of the default of the defendant and the plaintiff

as damages. was justified in bringing or defending the action, the costs

may, in general, be recovered against the defendant as spe-
cial damage. The plaintiff, having bought a horse from the
defendant with a warranty, resold it with a similar warranty,
not knowing that it was unsound, and being sued for a breach
of the warranty gave notice of the action to the defendant
and offered him the defence of it; the defendant gave no
answer and the plaintiff defended the action and had to pay
costs; it was held that he was entitled to recover such costs
as damage in an action for the defendant’s breach of war-
ranty {a). The plaintiff, as broker for the defendant, entered
into a contract for the purchase of goods, which the defend-
ant afterwards repudiated, and the plaintiff, being sued for
the breach of contract in not accepting the goods, with the
knowledge of the defendant defended the action and had to
pay and incur costs ; it was held that he was entitled to recover
the costs as damages in an action against the defendant upon
his contract to indemnify him in acting as broker (8).

The plaintiff, relying on the representation of the defend-
ant that he was authorized to order goods for another, sup-
plied the goods according to the order and brought an action
against the alleged principal for the price, in which he failed
because the defendant had not the authority represented,
and was obliged to pay the costs; it was held that he might
recover those costs as damages in an action against the
defendant for the breach of warranty of his authority as
agent (c). In a similar action against an agent who had
falsely represented that he had authority as agent for another
to contract to grant a lease to the plaintiff, it was held that
the costs of a Chancery suit for specific performance insti-
tuted against the alleged principal in reliance upon the de-
fendant’s representation of authority and in the absence of

1 Bing. N. C. 492; and see Hathaway Taunt. 202; Blyth v. Smith, 5 M. &
v. Barrow, 1 Camp. 151; Sinclair v. G.405; post, p.599.

Eldred, 4 Taunt. 7; Jenkins vy. Bid- (6) Broom v. Hall,7 C. B. N.S.
dulph, 4 Bing. 160. 503.
(a) Lewis v. Peake, 7 Taunt. 153; (ce) Randell v. Trimen, 18 C. B.

and see Mainwaring y. Brandon, 8 786; 25 L. d. C. P. 807.
CHAP. V. DAMAGES. 599

any notice from him to the contrary, and which was dismissed
upon the ground of his want of authority, might be recovered
as damages, although no notice was given to the defendant
before instituting the suit (a).

The costs of an action cannot be recovered as special Costs of ac-
damages unless the plaintiff was justified upon reasonable fom when
grounds in bringing or defending the action (4). Thus, where ae oe
the acceptor of a bill for the accommodation of the drawer,
having been compelled to pay it, sues the drawer for an in-
demnity, he cannot claim as damages the costs of defending
an action upon his acceptance, because he ought to have paid
it without action (c). The plaintiff bought a horse of the
defendant with a warranty, and having resold it with a similar
warranty was sued for a breach and defended the action, but
it appeared that he might have known by a reasonable exa-
mination of the horse that it was unsound before defending
the action ; it was held that the costs of the defence were
occasioned by his own imprudence, and could not be charged
as special damage consequent upon the defendant’s breach of
warranty (d). The plaintiff had been let into possession of
premises by the defendant under a supposed authority in
him to let them on behalf of the owner, but upon a mere
verbal agreement for a lease for seven years, and the owner
afterwards brought ejectment against him and recovered the :
premises ; it was held that he could not charge the defendant
with the costs of defending the ejectment as damages caused
by his breach of warranty of authority, because the defence
must necessarily have failed by reason of the agreement for
the lease being merely verbal (e).

Where the action, the costs of which are claimed as da-
mages, was brought in respect of acts for which the plain-
tiff was in whole or in part independently responsible, he
cannot recover the costs of such action (f). Thus, where a

(a) Collen v. Wright, 7 EH. & B. (c) Beech v. Jones, 5 OC. B. 696.
301; 26 L. J. Q. B. 147; 27 ib. 215 ; (d) Wrightup v. Chamberlain, 7
and see Hughes v. Graeme, 331. J. Scott, 589.

Q. B. 335; ante, p. 307. (e) Pow v. Davis, 1 B. & S. 220;
(b) See Broom vy. Hall, 7C.B.8. 30 L. J. Q. B. 257.

503; Richardson v. Dunn,8 C.B.N. (f) Short v. Kalloway, 11 A. & Ei.

8.655; 30L.J3.C.P.44; Bleaden 28; Walker v. Hatton, 10 M.& W.

v. Charles, 7 Bing. 246. 249.
600 CHAP. VY. DAMAGES.

lessee, being under a covenant to repair and having granted
an under-lease subject to a similar covenant, was sued for a
breach of the covenant and had to pay the costs of the ac-
tion, it was held that the loss was attributable to his own
breach of covenant, and could not be recovered as damages
in an action against his underlessee (a).

Where the costs of an action are recoverable as special
damage caused by the breach of contract of the defendant,
the plaintiff may charge not only the costs as taxed between
party and party, but also his own costs as taxed between at-
torney and client (2). The liability to pay costs, although not
yet paid, is sufficient to sustain the claim of the plaintiff to
recover the amount as special damage, if the costs when paid
would be recoverable as such (c); but the lability must be
properly described as a liability in the declaration (d).

(a) Penley v. Watts, 7 M. & W. (c) Smith v. Howell, 6 Ex. 730;
601; Walker vy. Hatton, 10M.& W. Randall v. Raper, E. B. & E. 84; 27
249; overruling Neale v. Wyllie, 3 L.J. Q. B. 266; Spark v. Heslop, 1
B. & C. 5383; and see Logan v. Hall, BE. & EH. 563; 28 L. J.Q. B. 197;
4. C. B. 598; Smith vy. Howell,6 Ex. Josling v. Irvine,6 H. & N. 512; 30
730; Short v. Kalloway, 11 A.& BE. UL. J. Ex. 78.

28. (d) Pritchett v. Boevey,1 0. & M.

(b) Hughes v. Graeme, 33 L.J.Q. 775; and see Richardson v. Chasen,
B. 335. 10 Q. B. 756.
601

CHAPTER VI.
ASSIGNMENT OF CONTRACTS.

Ssction I. Assignment oF Contracts By AcT oR
AGREEMENT OF THE PartiEs.

Contracts not assignable at

Common Law...... stan tease 601
Assignment of Contracts in
EOQuity adeeed awasnos avestowaye 601

Equitable Assignment recog-
nized in Law
Assignment by Agreement of

605

all the Parties.............06. 607
Assignment of Liability ...... 610
Contracts assignable at Law ... 611

Bills of Exchange
Promissory Notes ....
Bills of Lading ....... ae
Bail Bonds, @hOsns cosaveses

 

An assignment of the rights or liabilities arising out of con-
tracts may occur :—by act or agreement of the parties ;—by
the assignment of estates in land to which covenants are
annexed ;—by marriage operating upon the contracts of the
wife ;—by the death of one of the parties transferring the
estate of the deceased to his representatives ;—by bank-
ruptey—which modes of assignment will be treated in order

in the following sections.

By the common law a chose in action, under which class Contracts
of rights is included the right arising from a contract, and sce
the right of action for the breach of a contract, is, in ge- common

neral, not assignable by the party entitled (a).

The rights arising out of

(a) Co. Lit. 2144; 2320 ; 2 Black-
stone’s Com. 442 ; Lampet’s case, 10
Co. 48 a; Parker v. Wises6 M. & S.
239; Fairlie v. Denton, 8B. & C. 395 ;

law.

a contract are, in effect, as- Assign-
ment of
contracts in

Thompson v. Dominy, 14M. & W. oe
403 ; Jones v. Carter, 8 Q, B. 134;
Wetherell vy. Langston, 1 Ex. 634,

643,
602 CHAP. VI. ASSIGNMENT OF CONTRACTS.

Assign-  signable in equity; an equitable assignment of a chuse in ac-

ment of . : . :

contracts in “10n being in the nature of a declaration of trust by the party

equity. having the legal right, and an agreement on his part to
permit the assignee to make use of his name to enforce it (a).

A court of equity will decree specific performance of a
contract in favour of an assignee of the benefit of it. Thus,
the assignee of a contract for the purchase of land may ob-
tain specific performance against the vendor (b). So, the
assignee of an agreement for a Jease may enforce the grant-
ing of the lease; but the lessor is entitled to have the
covenants executed by the person with whom the original
agreement was made (c); he cannot, in general, object that
that person has become insolvent (d). If the lease agreed
for is to be subject to a proviso against assignment, the
assignee of the agreement cannot enforce it against the
lessor (e).

Contracts in which the personal acts and qualities of one
of the contracting parties form a material ingredient are, in
general, not assignable; thus, a contract by a publisher
with an author to publish a work was held not assignable
by the publisher to another, without the consent of the
author, in consequence of the personal trust placed in the
publisher by the author (/).

A mere offer of a contract made to a person, before ac-
ceptance, is not assignable even in equity (9).

In equity the assignee may sue in his own name, and en-
force the contract directly against the other contracting
party, making him, as well as the assignor, if necessary, a
party to the bill (kh). But a court of equity will not enter-
tain a suit by the assignee of a debt, where he can enforce

(a) Butler’s note to Co. Lit. 2832; 504; see Buckland v. Papillon, L.
Row v. Dawson, 1 Ves. sen. 331; Rep. 1 Eq. 477; 35 L. J. C. 887; 1
2 White & Tudor, L. C., 3rd ed. 667. Weekly Notes, 377.

(4) Nelthorpe v. Holgate, 1 Coll. (f) Stevens v. Benning, 1K. & J.
C. C. 208. 168; 24 L. J.C. 153; see per Lord

(c) Crosbie v. Tooke, 1M. & K.  Abinger, O.B., Gibson v. Carruthers,
431; Morgan vy. Rhodes, 1M.& K. 8M. & W. 821, 343.

435; Dowell v. Dew, 1 Y. & C. C. (9g) Meynell v. Surtees, 3 Sm. &

345 ; and see O’ Herlihy v. Hedges, Gill. 101, 117; ante, p. 23.

1 Sch. & Lef. 123. (h) Stery, Eq. Jur. 1057; Nel-
(d) Crosbie v. Tooke, supra. thorpe v. Holgate, 1 Coll. C. C. 203,

(e) Weatherall v. Geering, 12 Ves. 217.
603

it at law in the name of the assignor, unless there are spe-
cial circumstances obstructive of the right of the assignee,
which the courts of law are not adequate to remove (a).

A court of equity will not assist an assignee of a chose in
action unless the assignment was made upon a valid con-
sideration (0).

An equitable assignment may be made without any deed Form of
or writing, by any words or acts showing aclear intention to ese
assign (c). An order made by a creditor upou his debtor ™™*
to pay the whole, or a portion of the debt, to another would
amount in equity to an assignment of the debt to the per-
son in whose favour it is made and to whom it is given. A
trust would thereby be created in favour of the equitable as-
signee of the fund, and would constitute an equitable lien
upon it(d). Such an order made in writing might constitute
a bill of exchange and require a stamp; without which it
would be inadmissible in evidence (ec). An order made on
a debtor to pay the debt to a third person, but not commu-
nicated to the latter, is inoperative until acted upon by
the debtor, and may be revoked (f).

The assignment is complete, as between the assignee and Notice of
the agsignor, without any notice to the debtor; but the as- a
signment is not complete as against the debtor until no-
tice (g). This notice need not be given in any formal
manner, or with the express purpose of completing the as-
signment ; notice of the assignment, however acquired, being
sufficient to affect the debtor with the trust, and the manner
or purpose of giving or obtaining the notice being imma-

SECT. I. BY ACT OR AGREEMENT OF THE PARTIES.

(a) Story, Eq. Jur. § 1057@; authorities there cited; Yeates v.

Hammond v. Messenger, 9 Sim. 327;
Keys v. Williams, 3 Y. & C. Ex. 462,
466; Rose vy. Clarke, 1Y. & C. C.
534.

(b) Edwards v. Jones, 1 My. & Cr.
226; M‘Fadden v. Jenkyns, 1 Hare,
458, 461; and the cases there cited ;
and see ante, p. 330.

(c) Row v. Dawson, 1 Ves. sen. 331;
2 White & Tudor, L.C., 3rd ed. 667 ;
Howell v. Maclvers, 4 T. BR. 690;
Heath v. Hall, 4 Taunt. 326; Tibbits
vy. George, 5 A. & H. 107; Story, Eq.
Jur. § 1047.

(d) Story Eq. Jur. § 1044, and

Groves, 1 Ves. jun. 280; Hz p. Al-
derson, 1 Madd. 53; Ex p. South,
3 Swanst. 392; Lett v. Morris, 4 Sim.
607; Burn v. Carvalho, 4 My. & Cr.
690, 702; Rodick v. Gandell, 1 De G.
M.&G.763; Bellv. Londonand North-
Western Ry. Co., 15 Beav. 548.

(e) Pott v. Lomas, 6 H. & N.529;
30 L.J. Ex. 210; Hutchinson v. Hey-
worth, 9 A. & B. 375; Hamilton v.
Spottiswoode, 4 Ex. 200; and see
M‘Gowanv. Smith, 26 L. J. C. 8.

(f) Scott v. Porcher, 3 Mer. 652;
Morrell v. Wootten, 16 Beav. 197.

(g) Story, Eq. Jur. § 1057.
Notice of
assignment.

Assignee
takes sub-
ject to
equities.

60-4 CHAP. VI. ASSIGNMENT OF CONTRACTS.

terial (a). Notice to one of several joint debtors or co-
trustees is, in general, sufficient, so long as he continues a
joint debtor or trustee (b) ; unless the one having notice is
himself the assignor (c). Mere notice to the debtor, without
concurrence or consent on his part, is sufficient to effect an
assignment of the debt in equity ; after notice of the assign-
ment he cannot refuse to be bound by it (d).

Until the title of the assignee is perfected by notice to
the debtor of the assignment, a subsequent assignee may
acquire a priority of right by giving prior notice of his as-
signment, or the debt may be discharged by a bona fide pay-
ment to the original creditor (e). As the debtor would be
justified in paying to, or to the order of, the assignor be-
fore notice, the debt or contract is held to remain until such
notice in the order and disposition of the assignor with
the consent of the assignee, so that in case of his bank-
ruptcy it would pass to his assignees under the statute (f).
After notice to the debtor, the debt is no longer in the
order and disposition of the assignor, and his assignees in
bankruptcy acquire no claim (g). Notice of an assignment of
a debt or fund given to the debtor or trustee, before the
money is actually due, or the relation of trustee is created,
is ineffectual to give priority over a previous assignment (/).

The assignee of a chose in action also takes it subject to
all the equities of the debtor or trustee against the assignor,
existing at the time of the assignment; as a right of set-

(a) Smith v. Smith, 2 ©. & M. 231;
Meux vy. Bell, 1 Hare, 73; Edwards

Porter, 3 E. & B. 743; 23 L. J. Q°
B. 345.

v. Scott, 1 M. & G. 962 ; 2 Scott,N. R.
266; Tibbits v. George, 5 A. & EH.
107.

(6) Smith v. Smith, 2 0. & M. 231;
Meuz vy. Bell, 1 Hare, 73; Timson v.
Ramsbottom, 2 Keen, 35.

(c) Browne v. Savage, 4 Drewry,
635; Willes v. Greenhill, 29 Beav.
376.

(d) Tibbits v. George, supra;
M‘Gowan v. Smith, 26 L. J. C. 8;
Belcher v. Campbell, 8 Q. B. 1, 11;
Bell v. London and North-Western
Ry. Co., 15 Beav. 548.

(e) Story, Eq. Jur. § 1057 ; Dearle
v. Hall, 3 Russ. 1; Loveridge v.
Cooper, 3 Russ. 30; sce Watts v.

(f) 12 & 13 Viet. ¢. 106, s. 125;
Ryall v. Rowles, 1 Ves. sen. 348;
2 White & Tudor, L. C. 3rd ed. 670 ;
Dean vy. James, 1 A. & E. 809 (a);
Buck v. Lee, 1 A. & E. 804; Belcher
v. Campbell, 8 Q. B. 1; Edwards v.
Martin, L. R. 1 Eq.121; 35 L. J.C.
186; Lees v. Whiteley, L. R. 2 Hq.
143; 35 L. J. C. 412.

(9) Crowfoot v. Gurney, 9 Bing.
372; Hutchinson y. Heyworth, 9 A.
& E.375.

(h) Buller vy. Plunkett, 1 Johns.
& H. 441; 30 L. J. C. 641; Webster
y. Webster, 31 Beav. 393; 31 L. J. C.
655 ; Somerset v. Cox, 33 Beav. 634;
388 L. J. C. 490,
SECT. I.

BY ACT OR AGREEMENT OF THE PARTIES. 605

off against the debt (a). If a person takes a negotiable in-
strument which is transferable by indorsement only, with-
out that formality, he is in the position merely of an equi-
table assignee, and is affected with all the equities which
attached to the instrument in the hands of the assignor (b).
Where the assignee of a debt gave notice of his claim to the
debtor and demanded payment, but the assignor disputed the
alleged assignment, it was held that the debtor was justified
in paying his original creditor, until the assignee obtained
an injunction (c).

The courts of law recognize the validity of equitable as-

signments of contracts for many purposes. An assignment

Equitable
assignment
of contracts

of a chose in action has always been held a good considera- Ss ae

tion for a promise (d). Thus, the benefit of a contract may
be sold, and the assignment of the contract forms a valid
consideration for a promise to pay the price, which may be
recovered in an action at law (e). The forbearance by the as-
signee of a bond to sue the obligor is a good consideration
for a promise by the obligor, on which the assignee may
maintain an action in his own name (/).

After the assignment of a contract the assignor may main-
tain an action on the contract as trustee for the assignee’ and
for his benefit; thus, the assignor of a ship, together with a
policy of insurance upon it, may sue upon the policy as
trustee for the assignee, although he retains no interest in
the ship or the policy (g). If, after an assignment of the
beneficial interest in the contract to the assignee, the assig-
nor becomes bankrupt, the contract does not pass to his as-
signees in bankruptcy, who take only his beneficial estate ;
but the right of action remains vested in him as trustee for
the benefit of the assignee (h). In such action, a plea of the

(a) Story, Eq. Jur. § 1047; Ryall
y. Rowles, 2 White & Tudor, L. C.,
3rd ed., 670, 736.

(b) Whistler v. Forster, 14C. B.N.
S. 248; 32 L. J.C. P. 161; see post,
p. 612.

(ce) Aplin v. Cates, 30 L. J. C. 6.

(d) Per Buller, J., Master v. Miller,
4T. R. 340, 341.

(e) Price v. Seaman, 4 B. & C.
525; see Kintrea vy. Preston, 1 H. &
N. 357; 25 L. J. Ex. 287.

(f )Morton v. Burn, 7 A. & E. 19;
and see Forth v. Stanton, 1 Wms.
Saund. 210.

(g) Powles v. Innes, 11M. & W.
10.

(h) Winch v. Keeley, 1 T. R. 619.
Equitable

606 CHAP. VI. ASSIGNMENT OF CONTRACTS.

plaintiffs bankruptcy would be met by a replication that be-

assignment fore the bankruptcy he had assigned the debt, and that the

recognized
in law.

May be
pleaded on
equitable
grounds,

defendant had notice of the assignment (a). So, after such
an assignment the assignees in bankruptcy cannot maintain
an action upon the contract assigned, even for the benefit of
the assignee of the contract (2) ; and an action by the assig-
nees would be met by a plea that the bankrupt had assigned
away the debt before the bankruptcy (c). Notice of the as-
signment to the debtor before the bankruptcy would be ne-
cessary to complete the title of the assignee as against the
assignees of the bankrupt assignor, for until such notice was
given the debt would remain in the order and disposition of
the bankrupt, and his assignees in bankruptcy would become
entitled (d).

In an action brought in the name of the assignor of a con-
tract, as trustee for and for the benefit of the assignee, the
courts of law will protect the rights of the assignee and
prevent collusion between the assignor and the debtor to de-
feat those rights ; thus, if the assignor after assignment of
the debt, in collusion with the debtor to defeat the right of
the assignee, executes a release to the debtor, or accepts
payment from him, the Court will not allow such release or
payment to be pleaded (e).

Formerly in such action the assignee could only apply to
the summary jurisdiction of the Court to protect his equita-
ble rights against the legal rights of the parties to the action,
and could not assert his rights upon the record(f). But
since the C. L. P. Act, 1854, 17 & 18 Vict. c. 125, s. 88-86,
has admitted pleadings on equitable grounds, the rights of
the assignee, who is the real plaintiff, may also be asserted

(a) Dangerfield v. Thomas, 9 A. & (e) Legh v. Legh, 1B. & P. 447;
EB. 292; D’Arnay v. Chesneau, 13M. and see Lnnell v. Newman, 4 B. & Ald.
& W. 796; Castelli v. Boddington, 1 419; Barker v. Richardson, 1 Y. &
E. & B. 66, 879; Monk v. Sharp, 2 J. 362; Phillips v. Clagett, 11M. &
H. &N. 540; 27 L. J. Ex. 29. W. 84; Rawstorne v. Gandell, 15 M.

(0) Carpenter v. Marnell, 3 B. & & W.304; ante, p. 502.

P. 40. (7) Zb.; and see Scholey v. Mearns,

(c) Leslie v. Guthric, 1 Bing. N.C. 7 East, 148, 153; Alner v. George, 1
697 ; see Pott v. Lomas,6 H. & N. Camp. 392; Bauerman vy. Radenius,
529; 30 L. J. Ex. 210. 7 T. R. 663; 2 Smith’s L. C. 5th ed.

(d) See ante, p. 604, 342.
SECT. I. BY ACT OR AGREEMENT OF THE PARTIES. 607

upon the record, where there is the opportunity ; thus, to an
action brought for the benefit of the assignee of a contract
in the name of the assignor to which the defendant pleaded
a-discharge by the plaintiff before breach, and also payment,
it was held to constitute a good replication on equitable
grounds that the discharge was given, and the payment
made, after notice to the defendant of the assignment, and
with the intention of defrauding the assignee (a). So, if
the assignor attempts to recover the debt for his own benefit,
the debtor may assert the rights of the assignee; thus, to
an action for a debt it is a good plea on equitable grounds,
that the plaintiff had assigned the debt to a third party, who
gave notice of the assignment to the defendant, and that
the assignor was not suing for the benefit of the assignee, or
with his consent (0).

It was also formerly held that the debtor, when sued at law
by the assignor for the benefit of the assignee, could not plead
that the assignee was the real plaintiff, for the purpose of
claiming a set-off against him (c); nor could a defendant
plead a set-off in respect of a debt of the plaintiff which had
been assigned to him (d). But since the admission of plead-
ings on equitable grounds, under the C. L. P. Act, 1860,
as above mentioned, it has been decided that a defendant
may plead, on equitable grounds, a set-off in respect of a
debt due from the plaintiff to a trustee for the defendant (e) ;
therefore it seems probable that a defendant would be al-
lowed to plead on equitable grounds a set-off in respect of a
debt due to him from the person for whose benefit the no-
minal plaintiff is suing as trustee.

The assignment of a debt may be effected in law, so as to Assignment
give aright of action to the assignee, by means of a bind- Coane
ing agreement between the assignor, the assignee, and the fall the

debtor, to the effect that the debt shall be discharged as eae

(a) De Pothonier v. De Mattos, EH. im Winch v. Keeley, 1 T. R. 619, 621,

B. & E. 461; 27 L. J. Q. B. 260. and Rudge v. Birch, ib. 622.
(2) Jeffs v. Day, L. Rep. 1 Q. B. (d) Wake v. Tinkler, 16 East, 36.
872; 35 L. J. Q. B. 99. (e) Cochrane v. Green, 9C0.B.N.8.

(c) Isberg v. Bowden, 8 Ex. 852; 448; 30 L. J. C. P. 97; and see
overruling Bottomley v. Brook, cited Elkin vy. Baker, 31 L. J. C. P. 177.
Assign-
ment of
debt by
Sagres
of all the
parties,

608 CHAP. VI. ASSIGNMENT OF CONTRACTS.

against the assignor or original creditor, and a new liability
created for the debt in favour of the assignee. Such an as-
signment frequently takes place for the purpose of the assignor
paying a debt due from himself to the assignee, which case
has been put thus: ‘“ Suppose A. owes B. £100, and B. owes
C. £100, and the three meet, and it is agreed between them
that A. shall pay C. the £100; B.’s debt is extinguished, and
C. may recover that sum against A. (a).”? Where a similar
relation existed between A., B., and C., and at A.’s request C.
charged B.’s debt to A., in an account sent in to him, it was
held that this was not sufficient to show that C. had dis-
charged B., or that A. had rendered himself liable to C. for
B.’s debt (lb). Ina similar relation between the parties, it
was agreed between A. and B., that A., instead of paying B.,
should pay B.’s debt to C.; it was held that C., being no
party to this agreement, acquired no right of action against
A.(c). So, where B. sued A., and A. pleaded that, at re-
quest of B., he agreed with C. to pay him instead of B., the
plea was held bad as not showing that B.’s debt to C. was
discharged (d).

Under such assignment as is above described, whereby
the debtor undertakes to become liable to the assignee in-
stead of the assignor, the assignee can sue the debtor only
as,and when, the assignor might have sued him ; thus, where
the creditor of the defendant assigned his debt to the plain-
tiff, and the defendant agreed to the assignment and under-
took to pay it to the plaintiff, but it appeared that the debt
was one payable by instalments upon the completion of cer-
tain building works by the creditor, who had not yet entitled
himself to recover it, it was held that the plaintiff was not
entitled to recover (e). So, if the assignment of the debt
is made conditionally, or if the debtor agrees to the assign-
ment of the debt only conditionally, and contracts with the
assignee to pay it only upon certain conditions, the assignee
is entitled accordingly, and can recover against the debtor

(a) Per Buller, J., Tatlockv. Har- 433; ante, p. 221.

ris, 3 T. R. 174, 180. (d) Cochrane v. Green, 9 C.B.N.S.
(b) Cuxon y. Chadley, 3 B.& C. 448; 30 L. J.C. P. 97.

591. (e) Fairlie y. Denton, 8 B. & C.
(ce) Price v. Easton, 4 B. & Ad. 395.
SECT. I. BY ACT OR AGREEMENT OF 1HE PARTIES. 609
only upon the conditions being satisfied, and when the debt
has thereby become absolute (a).

The liability of the debtor to the assignee at law, being Considers-
founded upon a new contract, and not on mere notice of the ee
assignment as in equity, there must be a sufficient consi-
deration to support the promise of the debtor to pay the as-
signee ; for unless made upon some valid consideration such
promise would not be binding (b). If, as in the case above
supposed, A. owes B. £100, and B. owes C. £100, and it is
agreed between them that A. shall pay C. the £100, and that
B’s. debt shall be discharged, the discharge of B. by C. is
the consideration for the promise by A. to pay C.; so, for-
bearance by the assignee to sue the assignor for a debt, or
giving additional time or credit to the assignor would con-
stitute a sufficient consideration to support the agreement of
the parties (c).

Where the debtor is indebted to the assignor for money Assign.
received to his use, the assent of the debtor to the assign- see
ment of the whole, or a certain amount of the debt, ex- ceived.
pressed to the assignee, operates as an effectual appropria-
tion of the money to the use of the assignee, and entitles
the assignee to recover such money from the debtor as re-
ceived for his use (d). But where the debt assigned is nota
claim for money received for the use of the assignor, or is
an undefined part of a claim for money so received, the
debtor becomes liable to the assignee only according to the
special terms of the agreement in which he promises to pay
him the debt (e).

An order by a creditor upon his debtor requiring him to o;aer upon
pay the whole or a portion of the debt to another person, debtor to

d
pay to an-
other.

(a) Wilson v. Coupland, 5 B. &
Ald. 228; Hudson v. Bilton, 6 E. &
B. 565; 26 L. J. Q. B. 27; and see
Sewell vy. Raby, 6 M. & W. 22;
Hamilton v. Spottiswoode, 4 Ex. 200.

(b) Liversidge v. Broadbent, 4H. &
N. 603; 28L. J. Ex. 332.

(c) Per Buller, J., Tatlock v. Har-
ris, 83 T. R.174, 180; ante, p. 608;
Wharton v. Walker, 4 B. & C. 163,
166; Hodgsonv. Anderson, 3 B. &C.
842,856; Hutchinson vy. Heyworth, 9

A. & E. 375, 403; and see Hamilton
vy. Spottiswoode, 4 Ex. 200, explained
in Liversidge vy. Broadbent, supra.

(d) See ante, p. 47; Israel vy.
Douglas, 1 H. Bl. 239; Wilson v.
Coupland, 5 B. & Ald. 228; Lilly
v. Hays, 5 A. & E. 548; Noble v.
National Discount Co. 5H. & N.
225; 29 L. J. Ex. 210.

(e) Per Littledale, J.. Wharton v.
Walker, 4 B. & C. 163, 166; and see
Fairlie v. Denton, 8 B. & C. 395.

2R
610 CHAP. VI. ASSIGNMENT OF CONTRACTS.

Order upon given by the creditor to that person for a valid consideration,

debtor to
pay to an-
other,

Assign-
ment of
liability.

would alone amount in equity to an assignment of the debt,
and upon preseutment or notice of it to the debtor would
become binding upon him (a). But in law, if such order is
presented, the debtor, though justified in paying according
to the order, is not bound to do so ; and until he enters into
a valid agreement with the assignee to pay him, he remains
liable to the original creditor only, who may revoke the order
before it has been acted upon (b). After the debtor has
made a valid engagement with the assignee to pay him ac-
cording to the order, the creditor can no longer revoke the
order (c). An order made by the creditor on the debtor to
pay another person, but not communicated to the latter, al-
though it may justify the debtor in acting upon it, may be
revoked, even in equity, at any time before it is executed, or
some engagement is entered into with the third person to
execute it (d).

An order in writing given by a creditor upon his debtor
in favour of a third party may amount to a bill of exchange,
and is then not admissible in evidence without a stamp (e).
The promise of the debtor to pay the debt to the assignee
instead of the assignor, where the assignment is made in
discharge of a debt due from the assignor to the assignee,
does not for that reason become a promise to pay the debt
of another within the Statute of Frauds (f).

Similarly, the ability for a debt, though not assignable
by the act of the debtor alone, may be effectively transferred
by a binding agreement of all the parties, to the effect that
the original debtor should be discharged and the new debtor

(a) See ante, p. 603.

(6) Williams v. Everett, 14 East,
582; Wharton v. Walker, 4B. & C.
163; Wedlake v. Hurley, 1 C.& J.
83; Brind vy. Hampshire, 1M. & W.
365; Malcolm v. Scott, 5 Ex. 601;
see S. C. 3 Mac. & G. 29; Moore v.
Bushell, 27 L. J. Ex. 3 ; Liversidge v.
Broadbent, 4H. & N. 603; 28 L. J.
Ex. 332.

(ce) Hodgson v. Anderson, 3 B. & C.
842; Hutchinson v. Heyworth, 9 A. &

E. 375; Walker v. Rostron, 9 M. &
W. 411; Hamilton y. Spottiswoode,
4 Ex. 200.

(d) Scott v. Porcher, 3 Mer. 652;
Morrell v. Wootten, 16 Beav. 197.

(e) Smith v. Nightingale, 2 Stark.
375; Firbank v. Bell, 1 B. & Ald.
36; Jones v. Simpson, 2 B. & C.
318; Pott v. Lomas, 6 H. & N.529;
30 L. J. Ex. 210; ante, p. 603.

(f') Hodgson v. Anderson, 3 B. &
C, 842; ante, p. 128.
SECT. I. BY ACT OR AGREEMENT OF THE paRTiEs. 611

accepted in his place. Thus, in the case above supposed of
A. being indebted to B. and B. to C., by agreement of all
the parties the debt of B. to C. may be discharged and A.
may be accepted by C. as debtor in his place (a). A transfer
of liability frequently occurs upon a change in a firm of
partners, when the debts of the old firm may, by the agree-
ment of all the three parties,—the creditor, the old firm, and
the new firm,—be effectually transferred to the new firm, so
as to render the new firm liable to the creditor in substitu-
tion of the old firm, and to discharge the latter (b). And
even when the only change in the firm is the retirement of
one of the partners, the transfer may be effected, by the
creditor accepting the liability of the continuing partners in
discharge of the original joint liability of all (c).

There are some contracts which are exceptional to the Contracts
general rule of the common law, and are assignable, so that ay naa
the assignee is entitled to sue upon them in his own name ;
of which the following are instances.

The contracts arising on bills of exchange are an excep- Bills of ex-
tion to the general rule that a contract is not assignable, ™"&
founded on the custom of merchants (d). The custom of
merchants or the law merchant is judicially ascertained and
recognized without proof; and evidence of particular usage
of merchants is not admissible to the contrary (e). By the
law merchant a bill of exchange made payable to order is
assignable by indorsement, so as to vest the right of pay-
ment in the indorsee and entitle him to sue upon it; a bill
of exchange made payable to bearer, or a bill of exchange
made payable to order, and indorsed in blank, is assignable

(a) Per Buller, J., Tatlock v. Har-
ris, 3 T. R.174, 180; and see Cuxon
v. Chadley, 3 B. & C. 591; Kemp v.
Watt, 15 M. & W. 672; Cochrane v.
Green, 9 C. B. N. 8. 448; 80 L. J.C.
P. 97.

(6) Hart v. Alexander, 2 M. & W.
484; and see Rolfe v. Flower, L.
Rep. 1P. C. 27.

(ec) Thompson v. Percival, 5 B. &
Ad. 925; Kirwan v. Kirwan, 2 0. &
M.617; Lythy. Ault, 7 Ex. 669 ; 21

L. J. Ex. 217, overruling Lodge v.
Dicas, 5 B. & C. 196, and David v.
Zillice, 5 B. & CO. 196; and see
Kirwan v. Kirwan, 2 C. & M. 617;
Thomas v. Shillibeer, 1 M. & W. 124;
and see ante, p. 468.

(d) See Hansard v. Robinson,7 B.
& C. 90, 94.

(e) Edie v. East India Co.,2 Burr.
1216; Barnett v. Brandao, 6 M. &
G. 630, 665 ; Brandao v. Barnett, 3
C. B. 519, 530, 535.

2 R 2
Promissory
notes.

Title of in-
dorsee not
affected by
equities,

Bills of
lading.

612 CHAP, VI. ASSIGNMENT OF CONTRACTS.

by mere delivery, and conveys the right to the holder for the
time being; unless a bill of eolanee is made payable to
order or to bearer, it is not assignable (a).

At common law promissory notes were considered merely
as evidence of a debt; the promisee could not sue upon the
promise therein contained without proof of a consideration
for the promise ; and such instruments were not assignable
within the custom of merchants (l). By the statute 4 Anne,
c. 9, it was enacted that such notes “ shall be assignable or
indorsable over in the same manner as inland bills of exchange
are or may be according to the custom of merchants.” The
effect of this statute is to place bills of exchange and pro-
missory notes on precisely the same footing with respect to
their negotiability (c).

The assignment of a negotiable instrument by the custom
of merchants is more effectual than the mere assignment of
a chose in action in equity, in that, if taken bond fide and
for value, and before it is due, it gives the holder a good
title, notwithstanding any defects in the title of previous
holders of which he has no notice at the time of taking it;
but if a person takes a negotiable instrument without value,
or when overdue, or with notice, he takes it subject to all the
equitable rights of previous parties to the instrument, which
have arisen respecting it (d). Where a person took an in-
strument, which was negotiable by indorsement only, by
mere delivery without indorsement, it was held that he was
in the position of a merely equitable assignee, and subject
to all the equities of the maker of the instrument against
the assignor, and that his title could not be made good by
a subsequent formal indorsement, after notice of such equi-
ties ; so that, the instrument having been obtained from the
raaker by fraud, he could not recover upon it (e).

A. bill of lading is the document signed by the master

(a) Byles on Bills, 9th ed. p. 80, (c) See Foster v. Dawber, 6 Ex.
142. 839, 853 ; Byles on Bills, 9th ed. p. 5.
(b) Clerke v. Martin, 2 L. Raym. (a) See ante, p. 604; per Cresswell,

ae and see per Lord Kenyon, J., Slurterant v. Ford, 4 M. & G. 101,
Brown vy. Harraden, 4'T. R. 148,151; 106; Byles on Bills, 9th ed. p. 117,
Trier vy. Bridgman, 2 East, 359; 161.

Blanckenhagen y. Blundell, 2 B. & ©) Whistler vy. Forster, 140. B.
Ald. 417. N.S. 248; 32 L. J.C. P. 161.
SECT. [. BY ACT OR AGREEMENT OF THE PARTIES. 613

of a ship upon the shipment of goods for carriage, acknow-
ledging the receipt of the goods, and undertaking to de-
liver them to the consignee, or his assigns, upon payment
of freight as stipulated for in the document. By the common
law the assignment of the bill of lading transfers the pro-
perty in the goods to the assignee (@); but the contract ex-
pressed in the bill of lading was not assignable at common
law, so that the assignee or indorsee of the bill of lading
could not sue the master of the ship upon it (4); nor could
the assignee or mdorsee of the bill of lading, as such, be
sued upon the contract contained in it. If the assignee
of the bill of lading claimed and accepted the goods under
it, such acceptance of the goods would be evidence of a con-
tract by him to pay freight and other charges according
to the terms of it (c); and if the bill of lading expressed
that the freight or other charges should be payable “as
per charterparty,” the assignee receiving the goods under
the bill of lading might become bound by the charterparty,
so far as it was incorporated by reference in the bill of
lading (d).
By the statute 18 & 19 Vict. c. 111, for amending the law Contract in

relating to bills of lading, it is now enacted, s. 1, that Pi a lads

“every consignee of goods named in a bill of lading, and able by in-
A : : .  dorsement.

every indorsee of a bill of lading to whom the property in

the goods therein mentioned shall pass, upon or by reason

of such consignment or indorsement, shall have transferred

to and vested in him all rights of suit, and be subject to the

same liabilities in respect of such goods as if the contract

contained in the bill of lading had been made with him-

self.” By s. 2, it is enacted that ‘ nothing herein contamed

shall prejudice or affect any right of stoppage i trunsitu,

(a) Lickbarrow v. Mason, 2T. RB.
63; 6 East, 21; 1 Smith, L.C., 5th
ed. 681 until complete delivery of the
goods, Meyerstein v. Barter, L. R. 2
C. P. 38.

(b) Ib.; Thompson v. Dom'ny,
14M. & W. 403; Howard v. Shep-
herd, 9 C. B. 297.

(c) Jesson v. Solly, 4 Taunt. 52;
Stindt v. Roberts, 5 D. & L. 460;
17 L. J. Q. B. 166; Moller v. Young,

5 BE. & B. 755; 25 L. J. Q. B. 94;
Chappel v. Comfort, 10 C. B. N.S.
803; 31 L. J. C. P. 58.

(d) Sanders vy. Vanzeller, 4 Q. B.
260; Wegener v. Smith, 15 C. B.
285; Smith v. Sieveking, 4 KE. & B.
915; 5 26.589; 24 L. J. Q. B. 257,
and see Kern v. Deslandes, 10 C.
B. N.S. 205; 80 L. J. CO. P. 297;
Fry v. Chartered Bank of India, 35
L.J.C. 2. 806; L. Rep. 1 C. P. 689.
614 UHAP, VI. ASSIGNMENT OF CONTRACTS.

or any right to claim freight against the original shipper
or owner, or any liability of the consignee or indorsee, by
reason or in consequence of his being such consignee or in-
dorsee, or of his receipt of the goods by reason or in con-
sequence of such consignment or indorsement.”

aye The indorsee of a bill of lading, taking it bond fide and

pill oflad- Without notice, becomes entitled to the goods, freed from

ings the right of stoppage in transitu, and all other rights and
charges against the goods, or in respect of the carriage, ex-
cept those specified in the bill of lading (a). The rights
and liabilities of the indorsee under the bill of lading con-
tinue only so long as he is the holder, and cease upon in-
dorsement of the bill to another (4). But the original shipper
does not get rid of his liability to pay freight by indorse-
ment of the bill of lading (c); unless the shipowner accepts
an indorsement conditional upon discharging him (d). It
seems that the indorsement of a bill of lading will pass to
the indorsee the right of action for a breach of the contract
contained in the bill of lading which has occurred before the
indorsement (e).

Bail bond, A bail bond taken in an action is assignable by the sta-
tute 4 Anne, c. 16, s. 20, enacting that the sheriff or officer
taking bail, at the request and costs of the plaintiff in such
action, shall assign to him the bail-bond by indorsing the
same ; and the assignee may bring an action and suit there-
upon in his own name.

Replevin Formerly replevin bonds were given to the sheriff, who

bond. s see. i
granted replevins; and, if it became necessary to put the
bond in suit, the sheriff assigned the bond to the other
party to the replevin under the statute 11 Geo. II. c. 19,
s. 23. But since the Act 19 & 20 Vict. c. 108 (amending
the County Courts Acts), s. 63-66, the authority to grant
replevins is transferred to the registrar of the county
courts, and the replevin bond is given to the other party in

(a) Lickbarrow v. Mason, supra ; (c) For v. Nott, 6 H. &N. 630;
Foster v. Colby, 3H. & N. 705; 28 3801L.J. Ex. 259.
L. J. Ex. 81; Shand v. Sanderson, (2) Lewis v. MW Kee, 36 L. J. Ex. 6;
4H. & N. 381; 28 L. J. Ex. 278, L. Rep. 2 Ex. 37.

(0) Smurthwaite vy. Wilkins, 11 C. (e) Short v. Simpson. L, Rep. 1 C.

B.N.S. 842; 81 L. J.C. P. 214. P. 248; 35 L. J. C. P. 147.
SECT. II. COVENANTS ANNEXED TO ESTATES IN LAND. 615

the action or proceeding (s. 70). The registrar is required
to approve of the bond, but is no party to it; and, therefore,
no assignment in necessary.

Administration bonds given to the judge of the Court of Adminis-
Probate under the statute 20 & 21 Vict. c. 77, s. 81, are bond
made assignable upon breach by order of the Court to some
person named in such order, who may sue on the bond in
his own name both at law and equity as trustee for all per-
sons interested (a).

~Cuap. VI. Szcr. II. Covenants Annexrep to Estares In

Lanp.
Covenants annexed to Estates What Covenants may be an-
AN LAME: seacias acgitios eaves 615 nexed to Estates in Land 618
Covenants with the owner To what Estates Covenants
of Estate .......:cceccceseeeee 615 may be annexed .............. 622
Covenants between Lessor Who are entitled or liable as
ANA LESSCC a5, y.09 00 cacoxwrees 617 ASSIQNCES 0... ee ceee eee ten eee 625

Covenants of a certain kind may be annexed to estates in Covenants
land, so that the benefit or the burden of the covenant passes eae
to an assignee of the estate ; the covenants are then said to withestates

1 in land.
run with the land.

In general, if a covenant of this kind is made with the covenants
owner of an estate in land, the benefit of it passes by as- ee.
signment with the estate of the covenantee (b). It is not estate.
necessary to this result that the covenantor should have
conveyed the land to the covenantee, or should have had
any connection with the land; he may be a stranger to the
land, except through the covenant (ce); but it is essential
that the covenantee should be the owner of the estate in
order that the covenant may become annexed to it (d).

It seems that the burden of a covenant of this kind made

by the owner of real estate does not pass with the estate to

(a) See 8. 83; Sandrey v. Michell, (ce) See Spencer’s case, 1 Smith’s L.
3B. &8. 405; 32 L.J.Q. B. 100; C. 5th ed. 43, 60; Sharp _v. Water-
and see 21 & 22 Vict. c. 95, 8.15; house,7 E. & B. 816; 27 L. J. Q. B.

Young v. Hughes, 4 H. & N. 76; 70.
28 L. J. Ex. 161. (d) Co. Lit. 885 a; Webb v. Russell,

(b) Middlemore v. Goodale, Cro, 3. R. 393; 1 Smith’s L. C. 5th ed.
Car. 503; Campbell v. Lewis, 3B. & 62.
Ald. 392.
616 CHAP. VI. ASSIGNMENT OF CONTRACTS.

the assignee, except in the case of covenants in leases (a).
The proprietor of a theatre covenanted with the plaintiff to
allow him to have the free use of two of the boxes at the
theatre for a certain period, and afterwards assigned his
estate in the theatre to the defendant; it was held that the
covenant was merely a personal covenant and did not run
with the estate, as it did not pass an interest in any spe-
cific part of the theatre, or a licence to enter and continue on
any specitic part (2).

Assignee But the assignee of property, taking it with notice that

ea oa the assignor has entered into covenants affecting the pro-

equity.  perty, may be held bound by those covenants in equity.
Thus, the purchaser of land with notice that the vendor had
entered into restrictive covenants as to building, or carrying
on trades, or the mode of using or enjoying the land, will
be restrained from infringing such covenants, at the suit of
the parties with whom, or for whose benefit, they were
made (c). So, where a person contracted to purchase land
and afterwards obtained notice that the vendor had pre-
viously covenanted not to build upon it, it was held that he
could not be compelled to specific performance of his con-
tract, because, if he took the land, he would be bound by the
covenant (d). Where land is sold in plots for building, and
the vendor grants each plot subject to a covenant by the
purchaser of that plot restrictive of the mode of building
upon it, equity will enforce the covenant in favour of and
against the assignee of any of the plots (e).

Constructive notice is sufficient to charge the purchaser of
land with the burden of covenants affecting it; and, in
general, a purchaser of freehold or of leasehold estates is
bound to inquire into the title of his vendor, and will be
affected with notice of what appears upon the title, if he

(2) See 1Smith’s L.C.,5thed,p.68— 2 Ph. 774; 18 L. J. C.83; Coles v.
74, where the point is discussed and Sims,5 De G.M. & G1; 23 L. J.C.
the authorities collected; and see In 258; Eastwood v. Lever, 33 L. J. C.
re Drew's estate, L. R. 2 Eq. 206; 85 355; Clements v. Welles, L. Rep. 1
L. J. C. 845. Fq. 200; 35 L. J.C. 265.

(b) Flight v. Glossopp, 2 Bing. N. C. (d) Bristow v. Wood, 1 Coll. 480.
125. (e) Western v. M‘Dermot, L. Rep.

(ec) Whatman +. Gibson, 9 Sim. 1 Eq. 499; 35 L. J. CO. 190; 36 id.
196; Tulk v. Moxhay, 11 Beay.571; 763; Eastwood v. Lever, supra.
SECT. If. COVENANTS ANNEXED TO ESTATES IN LAND. 617

does not so inquire; and this rule applies to a tenant taking
a term of years, or a tenancy from year to year (a).

By the common law covenants of a kind capable of Covenants
running with the land, made between lessor and lessee of a
land, pass to the assignee of the term, so that he is liable to lessee
be sued and entitled to sue upon such covenants (b). But
according to the better opinion, such covenants in leases by
the common law were not assignable with the reversion; and
to remedy the inconveniences arising from this state of the law
the statute 32 Hen. VIII. c. 34 was passed, by which such cove-
nants between lessor and lessee were also made or declared
to be assignable with the reversion, so that the benefit and
the burden of them pass to the assignee of the reversion (c).

By that statute, after reciting “that by the common law Annexed to

no stranger to any covenant could take advantage thereof, ‘eversionby
but only such as were parties or privies thereto,” it is enacted,
(s. 1) to the effect that all persons, being grantees, or as-
signees of any reversion, shall have like advantage against
the lessees, their executors, administrators, and assigns, by
entry for non-payment of the rent, or for doing waste, or
other forfeiture, and by action only, for not performing other
conditions, covenants, or agreements, expressed in the in-
dentures of leases, as the said lessors and grantors might
have had. And bys. 2, itis enacted to the effect that all
lessees and grantees of lands or other hereditaments for
terms of years, life, or lives, their executors, administrators,
or assigns, shall have like action and remedy against all
persons having any gift or grant of the reversion of the lands
and hereditaments so letten, or any parcel thereof, for any
condition or covenant expressed in the indentures of their
leases, as the same lessees might have had against the said
lessors and grantors. ‘This statute applies only to leases by
deed (d) ; and it applies only to covenants of the kind which
may run with the land (e).

(a) Wilson v. Hart, L. Rep. 1 Ch. (c) See Bickford v. Parson, 5 0. B.
Ap. 463; 35 L. J.C. 569; Clements 920,930; 1 Wms. Saund. 240a,n. (a).
v. Welles, L. Rep. 1 Eq. 200; 35 (d) Brydges v. Lewis, 3 Q. B. 608 ;
Thad: 265. Standen v. Chrismas, 10 Q. B. 185;

(b) Campbell v. Lewis, 3 B.& Ald. and see Bickford v. Parson, supra.
393. (e) Spencer's cuse, 5 Co. 16.
618 CHAP. VI. ASSIGNMENT OF CONTRACTS.

Coren If the covenant in the lease is not made with the person
with rever- entitled to the reversion it is not assignable; thus, where
sioner. a mortgagor and mortgagee joined in leasing the mortgaged
premises, and the covenants by the lessee were made with
the mortgagor only, it was held that the assignee of the
mortgagee was not entitled to sue upon them (a). So, where
a lease was made by a mortgagor, in which the previous
mortgage was recited, so that there was shown to be no
reversion in the mortgagor even by estoppel, the covenants
were held to be not assignable (b). So, if a husband and
wife, being seised in right of the wife, lease, and the cove-
nants are made with the husband only, they will not run
with the reversion (c); and if tenants in common severally
demise their undivided interests, and the covenants are
made with both jointly, or if joint tenants demise, and the
covenants are made with one severally, it seems that such
covenants are not assignable with the reversion (d).
Distinction The right and liability of the assignee of the lessee upon
between covenants running with the land arises at common law out

privity of : rae :
estate and of his privity of estate with the lessee, a legal consequence
P y 9 g q

Pear : of which is that all the actions by and against such assignee
upon the covenants annexed to the term are local; but it is
held that the statute 32 Hen. VIII. c. 34, transfers the pri-
vity of contract, consequently the actions by and against
the assignee of the lessor, which are given by the statute,
are transitory (e). The distinction is important in reference

to the venue in such actions (f).

Whatcovee It is laid down that when the covenant extends to a thing

pants may in esse parcel of the demise, it is annexed and appurtenant

i hal in to the thing demised, and shall go with the land (9) ; as, if
the lessee covenants to repair the premises demised, the
covenant is annexed to the estate'in the premises and shall

(a) Webb v. Russell, 3 T. R. 3938. (e) Stevenson v. Lambard, 2 East,
a Pargeter vy. Harris, 7 Q. B. 575,580; Tuursby v. Plant, 1 Wms.

Saund. 240 a, n. (a); Mostyn v.
‘O, a ee Sleffenoni, 12 M.& = Fabrigas, 1 Smith’s L. C. 5th ed.

W.1 607, 635; see Bullen & Leake, Prec.
id See per Parke, B., id. p. 134; Pl. 2nd ed. 183.
and see Thompson v. Hakewill, 19 (7) See id.

C. B.LN.S. 713; 35 L. J.C, P.18, 22. (g) Spencer's case, 5 Co. 15.
619

bind the assignee (a) ; and such a covenant extends to new
buildings erected during the term, which the assignee be-
comes liable by the covenant to repair as part of the demised
premises (b). A covenant in a lease of mines to build a
new smelting mill, and keep it in repair, and so leave it at
the expiration of the term, was held to be a covenant run-
ning with the term and the reversion, as tending to the sup-
port and maintenance of the premises, and the assignee of
the reversion was held entitled to sue for a breach of the
covenant (c).

If the covenant concerns a thing which was not im esse at Covenants
the time of the demise made, as a covenant to build a wall oe
upon part of the demised premises, the covenant is not
annexed and will not bind the assignee. It was resolved,
however, that such a covenant, if made by the lessee for
him and his assigns, would bind the assignee by the express
words (d). “ But although the covenant be for him and his
assigns, yet if the thing to be done be merely collateral to
the land, and doth not touch or concern the thing demised
in any sort, there the assignee shall not be charged. Asif
the lessee covenant for him and his assigns to build a house
upon the land of the lessor which is no parcel of the demise,
or to pay any collateral sum to the lessor or to a stranger, it
shall not bind the assignee” (ce). A covenant not to cut
down trees upon land during the currency of a lease, in
which the trees were not included, is collateral to the land
demised and does not pass with the land or the reversion (/).

The ordinary covenants for title in a conveyance will run Covenants
with the land, so that the benefit of them passes to successive oats:
owners of the estate. So, the ordinary covenants in a lease

SECT. II. COVENANTS ANNEXED TO ESTATES IN LAND.

(a) Spencer’s case, 5 Co. 15; Dean
& Chapter of Windsor’s case, 5 Co. 24.

(6) Minshull y. Oakes, 2 H.& N.
793; 27 L. J. Ex. 194.

(ce) Easterby v. Sampson, 9B. & C.
505; 6 Bing. 644.

(d) Spencer’s case, supra, 2nd
Resolution; and see Doughty v.
Bowman, 11 Q. B. 444; Wilson v.
Hart, L. Rep. 1 Ch. Ap. 468; 35
L. J. C. 569. No reason is given for
the alleged difference where the as-
signs are named; and it seems that

the capacity of a covenant to be as-
signed with the land depends mainly,
if not entirely, upon the natuve of the
covenant, and not upon whether the
assions are named: see Minshull v.
Oakes, 2 H. & N. 793; 27 L. J. Ex.
194.

(e) Spencer's case, supra; and see
Vernon v. Smith, 5 B. & Ald.1,7;
Raymond vy. Fitch, 2 C.M. & R. 588,
599.

(f) Raymond v. Fiteh, 2 C. M. &
R. 588, 599.
Covenants
in leases.

620 CHAP. VI. ASSIGNMENT OF CONTRACTS.

for quiet enjoyment, and for further assurance, will run with
the land and with the reversion (a). So, the warranty or
covenants implied in words of demise (b) ; which implied
covenants, however, extend no further than the estate of
the lessor (c).

A covenant in a lease to pay the rent reserved runs, as
to the burden of it, with the term, and, as to the benefit of
it, with the reversion (d). A covenant in a lease for re-

newal at the end of the term will run with the land and with

the reversion (¢) ; and so will a proviso for determining the
term at the option of either party (f). A covenant for re-
newal of a lease does not import that the renewed lease is to
contain a similar covenant (g). A covenant in a lease not
to assign or underlet, or not to do so without the consent of
the lessor, does not run with the term; if the lessor grants
the term subject to the condition that it shall cease if the
lessee assigns, an assignment by the lessee will be void ; but
if the lessor restrains the lessee from assigning by covenant
only, though the lessee by assigning commits a breach of
covenant, the assignment is not void, and the assignee is not
bound by the covenant (i). If an agreement is made for a
lease to be granted subject to a condition or covenant against
assignment, an assignee of the benefit of such agreement
could not enforce specific performance of it against the
lessor (¢).

A covenant in a lease to cultivate the land demised in a

(a) Middlemore v. Goodale, Cro.
Car. 503; Noke v. Awder, Cro. Eliz.
373, 436; Lewis v. Campbell, 8 Taunt.
715; Campbell v. Lewis, 3 B. & Ald.
392 ; Spencer’s case, 1 Smith, L. C.,
Sth ed. 43, 53.

(0) Spencer’s case, supa; Shep-
pard’s Touchstone, by Preston, p. 181,
n. (3): by the 8 & 9 Vict. c, 106,
s. 4, “the word ‘give’ or the word
‘grant’ in a deed executed after 1
Oct. 1845, shall not imply any cove-
nant in law, in respect of any tene-
ments or hereditaments.”

(ec) Adams v. Gibney, 6 Bing. 656 ;
Penfold vy. Abbott, 3% L. J. Q. B. 67.

(d) Sacheverell vy. Froggatt, 2Wus,
Saund. 367 a.

(e) Vernon v. Smith, 5 B. & Ald. J,

11; Roe d. Bamford v. Hayley, 12
East, 464, 469; Simpson v. Clayton,
4 Bing. N. C. 758.

(f') Roe d. Bamford-v. Hayley,
supra.

(g) Iggulden v. May,2 B. & P.
N. R. 419; see 8. C.Y¥ Ves. 325.

(h) Paul y. Nurse, 8 B. & C. 486;
see Doe d. Cheere v. Smith, 5 Taunt.
795; as to conditions not to assign
without licence, and the effect upon
such conditions of giving a licence to
assign, sec Dwmpor’s case, 4 Co. 119;
1 Smith's L. C. 5th ed. 28; 22.&23
Viet. ¢. 85, 8. 1.

(t) Weatherall y. Geering, 12 Ves.
504; sce Buckland vy. Papilion,L. Rep.
Liq. 477; 35 L.d. C. 387; 1 Weekly
Notes, 377.
SECT. II. COVENANTS ANNEXED TO ESTATES IN LAND. 62]

particular manner will run with the land (a) ; so, a covenant
not to carry on a particular trade upon the premises (b) ; so,
a covenant not to build on a certain spot (c). A covenant to
reside on the demised premises runs with the land and binds
the assignees of the lessee (d). A covenant in a lease to
keep the premises insured against fire, where the sum in-
sured is to be laid out in rebuilding or repairing the pre-
mises, is a covenant that runs with the land (e).

A covenant by the lessce of a mill, for himself and his as-
signs, not to hire persons to work in the mill who were set-
tled in other parishes, was held not to run with the land so
as to bind the assignee of the lessee (f). The lessee of a
public house covenanted with the lessors to take all his beer
of them or their successors in their trade of brewers ; the
lessors afterwards assigned their premises and trade, and the
assignees removed the plant and carried on the trade of
brewers elsewhere; the Court held, without deter mining
whether such a covenant was generally capable of running
with the land, that as the satienese had ceased to carry on
the trade of the lessors, to which only the covenant applied,
they had no claim for a breach of the covenant (g).

The owner of a mill and of certain land granted a lease
of the land, upon the terms of the lessee yielding and pay-
ing rent, and also doing suit to the mill of the lessor by
grinding all the corn there that should grow upon the de-
mised land; it was held that the doing suit to the mill was
in the nature of a rent reserved, and incident to the rever-
sion at common law, and that the implied covenant to render
it ran with the land and the reversion so long as the owner-
ship of the mill and the land belonged to the same person,
and, consequently, the assignee of the reversion in both
could sue upon it (2). A grant or demise for a term of years
of a licence to dig for and carry away china clay in certain

(a) Cockson v. Cock, Cro. Jac. (f) Mayor of Congleton v. Pattison,
25. 10 East, 130 ; and see Walsh v. Fus-
(b) Mayor of Congleton v. Pattison, sell, 6 Bing. 163, 169.
10 East, 130, 138. (g) Doe v. Reid, 10 B. & C. 849;
(c) See Weston v. M‘Dermott, 1. R. see Hartley v. Pehall, Peake, 178.
1 Kq. 499; 35 L. J. C.190. (h) Vyvyan v. Arthur,1 B. & C.

(d) Tatemy. Chaplin, 2 H. BI.133. 410; see Richardson y. Capes, 2 B. &
(e) Vernon vy. Smith,5 B.& Ald.1.  C. 841.
To what
estates
covenants
may be an-
nexed.

622 CHAP. VI. ASSIGNMENT OF CONTRACTS.

land contained a covenant by the grantee to pay compensa-
tion to the grantor for all such parts of the land as he might
injure by digging ; the covenant was held to run with the
land and with the reversion, so that the assignee of the grantor
was entitled to maintain an action for a breach (a2). And
in a similar case, the assignee of the grantee was held lable
under such covenant (b).

A covenant by a lessor to supply the premises demised,
being a house, with water was held to be a covenant run-
ning with the land, upon which the assignee of the lessee
might sue the reversioner (c). A covenant with the owner
of land to supply pure water for the cattle on the land runs
with the land, so as to give a right of action for a breach tq
the devisee of the land (d).

The benefit of a covenant, capable of running with an
estate in land, may be annexed to an estate in fee; and ina
lease the benefit or burden of such a covenant may be an-
nexed to the term and to the reversion (ce). The owner of
an estate in fee granted it to another, with a covenant for
further assurance ; the assignee of the grantee was held en-
titled to the benefit of the covenant and to maintain an ac-
tion upon it against the grantor(f). The defendant, possessed
of premises for a term of years, assigned them to another for
the residue of the term, leaving no reversion, and covenanted
for quiet enjoyment, and the assignee assigned them to the
plaintiff; it was held that the covenant ran with the term,
and that the plaintiff, as assignee of the term, was entitled to
sue upon it (g). Ifa tenant from year to year demises for a
term of years he does not thereby assign the whole of his
interest, which is for an indefinite period, determinable by
notice to quit, and may last longer than the term, and du-
ring the continuance of his tenancy, there is a reversion to

(a) Martyn v. Williams, 1 H.&N. (e) See ante, p. 615; Middlemore v.
817; 26 L. J. Ex. 117. Goodale, Cro. Car. 503; Noke v.

(6) Norval y. Pascoe, 384 L. J. Awder, Cro. Eliz. 373; Campbell v.
C. 82. Lewis, 3 B. & Ald. 392.

(ve) Jourdain v. Wilson, 4 B. & Ald. (f) Middlemore v. Goodale, Cro.
266. Car. 503.

(d) Sharp v. Waterhouse, 7 EB. & (g) Campbell v. Lewis, 3B. & Ald.
B. 816; 27 L. J. Q. B. 70. 392.
SECT. II. COVENANTS ANNEXED TO ESTATES IN LAND. 623

which the covenants in the lease are annexed and which will
pass to an assignee (qa).

A covenant contained in a lease of tithes, to take the tithes Incorporeal

in kind, was held to run with the lease of the tithes and bind ee
the assignee (b) ; and a covenant in a lease of the tolls of a
market will run with the tolls demised by the lease (c). So,
a covenant may be annexed to the grant of a licence to make
a channel for supplying water to a mill (d) ; and to the grant
of a licence to dig for minerals (ec). But a covenant cannot
be annexed to a rent issuing out of land. The owner of
lands in fee conveyed them to the use that he, his heirs,
and assigns might have a certain rent issuing out of the
premises, and subject thereto, to the use of the defend-
ant, his heirs, and assigns, and the defendant covenanted
with him, his heirs, and assigns to pay the said rent, and
to build certain messuages on the premises for better se-
curing the said rent, and the owner of the rent afterwards.
demised the rent to the plaintiff for a term of years; it was
held that the covenant did not run with the rent, and that
the plaintiff was not entitled to sue upon it (f).

A covenant cannot be annexed to a merely equitable Equitable
estate, as that of a mortgagor ; so, where a mortgagor leased, “™**
and it appeared on the face of the deed that he had only the
equity of redemption in the land, it was held that the co-
venants were not annexed to his interest, and his assignee
could not maintain an action upon them (q).

A reversion by estoppel will carry with it the covenants in Reversion
a lease, and the assignee of such reversion may sue upon the Py estoppel.
covenants (i). The execution of an indenture of lease cre-
ates a reversion by estoppel in the lessor as against the lessee,

(a) Oxley v. James, 13 M. & W.
209 ; and Cattleyv. Arnold, 1J. & H.
651; 28 L. J. C. 352.

(0) Bally v. Wells, 3 Wils. 25.

(c) Hart of Egremont v. Keene,

411; see Randall v. Rigby, 4 M.
& W. 130, 1385; Williams v. Hay-
ward, 1H. & HE. 1040; 28 L. J. Q. B.
374,

2 Jones Ex. Ir. 307.

(d) Earl of Portmore v. Bunn, 1 B.
& C. 694.

(e) Muskett v. Hill, 5 Bing. N. C.
694, 708; Martyn v. Williams, 1 H.
& N. 817; 26 L. J. Ex. 117; Norval
y. Pascoe, 34 L. J. C. 82.

(f) Milnes v. Branch, 5 M. &8.

(9) Pargeter y. Harris, 7 Q. B.
708.

(hk) Gouldsworth v. Knights, 11M.
& W. 337; Sturgeon v. Wingfield, 15
M. & W. 224; Doe d. Prior v. Ongley,
10 C. B. 25; Cuthbertson y. Irving,
4H. & N, 742; 6 2b. 185; 28 L. J.
Ex. 306 ; 29 ib. 485.
' Reversion
by estoppel.

Covenants
cannot be
annexed to
goods,

624 CHAP. VI. ASSIGNMENT OF CONTRACTS.

according to the terms of the indenture. If the lessor’s
title is recited in the deed, the lessee, executing the deed,
is estopped from denying such recital; if the lessor’s title
does not appear in the deed, the lessee is estopped from
alleging that the lessor had no estate in the premises, nil
hubuit in tenementis, and the reversion thus arising by es-
toppel i in the lessor is prima facie a reversion in fee simple,
which, as against ‘the lessee, will pass to an assignee, or
devisee, or by descent to an heir (a). The lessee may rebut
the vind facie presumption of the reversion being in fee
simple by evidence consistent with the estoppel, as that the
reversion is an estate for life or for years, but not by evi-
dence that the lessor had no estate at all, because such evi-
dence would be inconsistent with the estoppel (b). If it
appears in the deed that the Jessor had no reversion at all,
as ina lease by a mortgagor which recites the previous
mortgage, the parties are estopped from setting up any re-
version to which the covenants could be annexed (c).

A covenant cannot be annexed to goods, so as to be as-
signable with the property in the goods. So, it was re-
solved, ifa man leases sheep or other stock of cattle, or
any other personal goods, for any time, and the lessee cove-
nants for him and his assigns at the end of the term to de-
liver the like cattle or goods, and the lessee assigns the
goods over, this covenant shall not bind the assignee (d).
So, a covenant in a charterparty to pay freight is not an-
nexed to the property in the ship, so as to pass to the as-
signees of the ship, in the same manner as covenants are
said to run with land (ce). So, ina lease of certain premises
together with moveable articles for the purpose of carrying
on a trade, with a covenant by the lessor that if the articles
of the same kind left by the lessee at the-end of the lease
should exceed a certain value the lessor should pay the ex-
cess, it was held that the covenant did not run with the
reversion, because it related to chattels, and consequently

(a) Cuthbertson v. Irving, 4H. &N. (ce) Pargeter v. Harris, 7 Q. B.708.
742; 6 2b. 135; 29 L. J. Ex. 485. (d) Spencer’s case, 5 Coke, 16;
(b) Weld v. "Baxter, 1H. & N. 8rd resolution.
568 ; 25 L. J. Ex. 214; 26 ib. 112. (e) Splidt v. Bowles, 10 East, 279.
SECT. II, COVENANTS ANNEXED TO ESTATES IN LAND. 625

that the executor of the lessor, who was also devisee of the
reversion in the premises under the will of the lessor, was
liable on the covenant only as executor de bonis testatoris,
and not de bonis propriis, as assignee of the reversion (a).

The grantee, or devisee, or heir of the reversioner, or, if een
the reversion is a term of years, the executor, are assignees or liable as
within the statute 32 Hen. VIII. c. 34, and take the benefit (Yen,
and the burden of the covenants which are annexed to the etd,
reversion (b). So, the executor or administrator of a lessee
may be charged as assignee (c); the assignees in bank-
ruptcy of the lessee, after an election by them to take the
lease, are entitled to the benefit and liable to the burden of
the covenants as assignees of the term (d).

The assignee must take the same estate to which the co-
venants are annexed. An underlessee is not liable, as an
assignee, upon the covenants in the original lease, because
he does not take the estate of the lessee to which the cove-
nants are annexed (¢). An assignee of the whole term is
liable, though he takes it by way of mortgage only, and
subject to a proviso for re-assignment on payment of the
mortgage debt (f). A lessee for lives granted all his estate
and interest in the premises to an underlessee for ninety
years, ifthe lives should so long live; it was held that this
was not an assignment of the whole estate of the lessee for
lives, because such estate, being freehold, was greater in
the estimation of law than the estate for years granted by
him, and therefore the underlessee was not liable, as as-
signee, upon the covenants in the original lease (gy). Land
was conveyed to such uses as the grantee should appoint,
and in default of such appointment to the use of the
grantee in fee, subject to certain covenants executed by him
which were of a nature to run with the land; the grantee

(a) Gorton v. Gregory, 3B. &8. (d) Goodwin v. Noble, 8 E. & B.
90; 31 U. J. Q. B. 302. 587; 27 L. J. Q. B. 204.

(0) Derisley v. Custance, 4 T. R. (e) Holford v. Hatch, Doug. 183.
75. (f) Williams v. Bosanquet, 1B. &

(ce) SeeSpencer’s case, 1 Smith, L.C.  B. 238, overruling Eaton v. Jaques,
5th ed: 43, 47; Tremeere v. Morison, Doug. 455.
1 Bing. N.C.89; Wollaston v. Hake- (g) Earl of Derby v. Taylor, 1 East,
will, 3 M. & G. 297. 502.
28
‘Who may
be entitled
or liable as
assignees.

On leases
made under
powers,

626 CHAP. VI. ASSIGNMENT OF CONTRACTS.

having exercised the power of appointment, it was held that
the appointee took the estate discharged from the covenants,
because he did not take the estate of the grantee, but took
under the appointment, which defeated the subsequent uses
to which the covenants were annexed (a). A person pos-
sessed of a term leased for a less term and assigned his re-
version, and the assignee took a conveyance in fee by which
the reversion became merged ; it was held that, the estate to
which the covenants were annexed being destroyed by the
merger, the covenants were extinguished at common law (b) ;
but the incidents to and obligations on a reversion expectant
on a lease are now preserved in case of a merger of the re-
version by the statute 8 &9 Vict. c. 106, s. 9.

Where a lease is made by a tenant for life under a power
of leasing, containing covenants made with the lessor, and
the tenant for life dies pending the lease, the remainder-
man is an assignee within the statute 32 Hen. VIII. c. 34,
and takes the benefit and the burden of the covenants an-
nexed to the reversion(¢). If the lease made in such case is
not in accordance with the power, and therefore void as
against those in remainder, though it may be good by way
of estoppel as between the parties to it, the remainderman
cannot maintain an action upon the covenants (d). And
upon the death of the lessor such lease becomes absolutely
void, so that an assignee of it under a subsequent assignment
takes no interest, and can maintain no action upon the co-
venants against the executor of the lessor (¢) ; but the lessee,
or his assignee under an assignment previous to the death
of the lessor, may charge the executor upon the express co-
venants in the lease (f); though he could not upon the co-
venants merely implied in law, because such covenants are
limited to the continuance of the lessor’s interest. (g).

(a) Roach v. Wadham, 6 Fast, 289. 4 Bing. N. C. 726.

(6) Webb v. Russell, 3'T. R. 393 ;

ae see Burton v. Barclay, 7 Bing.
45.

(ec) Isherwood yv. Oldknow, 3 M. &
8. 382; and see Rogers v. Humphreys,
4 A. & EK. 299; Whitlock’s case, 8 Co.
71a; Sacheverell vy. Froggatt, 2 Wms.
Saund. 368; Bringloe v. Goodson,

(d) Yellowly v. Gower, 11 Ex, 293 ;
24 L. J. Ex. 289,

(e) Andrew vy. Pearce, 1B. & P.
N. RB. 158.

(f) Williams vy. Burrell, 10. B.
402.

(9) Adams v. Gibney, 6 Bing. 656
Penfold v. Abbott, 32 'L. J. Q. B. 67.
SECT. II. COVENANTS ANNEXED TO ESTATES IN LAND. 627

The mortgagee of a lease is liable as assignee upon the On mort-

covenants in the lease which are annexed to the term (a). °°”
The mortgagee of an estate, upon default of the mortgagor,
is entitled to the remedies upon a lease made by the mort-
gagor before the mortgage, as assignee of the reversion ;
if a lease is made by the mortgagor alone after the mort-
gage, the mortgagee may treat the lessee as a trespasser,
but he is not entitled to the remedies upon the lease (6).
A mortgagor and mortgagee joined in leasing the mort-
gaged premises, and the covenants by the lessee were made
with the mortgagor only; it was held that they were not
annexed to the estate of the mortgagee, and that the as-
signee of the mortgagee was not entitled to sue upon
them (c).

The assignee of a particular estate in the reversion in the On —
whole premises demised, as a grantee of the reversion for part of re-
life, or for a term of years, is an assignee within the statute "7°"
82 Hen. VIII. c. 84, and is entitled to the benefit of the
covenants and conditions in the lease (¢). The assignee of
the reversion in a specific part of the demised premises is
an assignee within the statute, and is entitled to the be-
nefit of the covenants apportioned to his interest in the pre-
mises; but he cannot take advantage of the conditions in
the lease, as if a lease be of three acres reserving a rent
upon condition, and the reversion is granted of two acres,
the rent shall be apportioned by the act of the parties, but
the condition is destroyed, because it is entire (e). So, the
assignee of the reversion in a specific part of the demised
premises may maintain an action against the lessee on a co-
venant to repair for not repairing that part (f). A cove-
nant to repair in a joint demise by tenants in common runs
with the entire reversion only; so that the heir of one of the
tenants in common deceased cannot sue alone for a breach

(a)- Williams v. Bosanquet, 1 B. & (d) Co. Lit. 215 a; Wright v. Bur-
B. 238; ante, p. 625. roughes, 3 C. B. 685.

(b) Rogers v. Humphreys, 4 A. & EB, (e) Co. Lit. 215a; and see Wright
299; and see Alchorne v. Gomme, v. Burroughes, 3 C. B. 685; Twynam
2 Bing. 54; Keeh v. Hall, Doug.  v. Piekard, 2B. & Ald. 105, 112;
21; Thunder y. Belcher, 3 East, 449. Roberts v. Snell, 1 M. & G. 577.

(ce) Webb v. Russell, 3 T. R. 393 ; (f) Twynam v. Pickard, 2 B. &
and see ante, p. 618. Ald. 105.

282
628 CHAP. VI. ASSIGNMENT OF CONTRACTS.

of such covenant without joining the other tenant in com-
mon («); and upon the decease of all the tenants in common,
the representatives of all must join in an action on the co-
venant (b). Ifthe reversion in an undivided share of the
demised premises is assigned to the lessee, whereby his
term, as to that share, becomes merged in his reversion in
the same, the reversioners in the other shares of the pre-
mises, or their assignees, are entitled to sue the lessee upon
the covenants, and to recover damages in proportion to the
extent of their interest (c).

Onassign- ‘The assignee of the term in part of the demised premises

or ratPat is entitled to the benefit of the covenants, and liable to the
burden of them, so far as they extend to his part of the pre-
mises; thus, the assignee of the term in part of the pre-
mises, under an underlease of that part for the whole term,
is entitled to sue the lessor on a covenant for not finding
materials for the repairs of that part (d). So, an action of
covenant will lie against the assignee of part for not repair-
ing his part (e) ; and an action of covenant will lie against
an assignee of part for an apportionment of the rent (/).
In a mining lease granted by deed to three persons in joint
tenancy, they covenanted jointly and severally to compensate
for all surface damage; two of the three joint tenants as-
signed their interest in the demise; it was held that. the
covenant ran with the land, and that the assignee was hable
severally for the whole amount of compensation (g). But
an action of covenant cannot be maintained by the lessor
against the assignee of a part of the term in the premises ;
as an underlessee for a term short of the original term by a
day, or year, or other interval of time (h).

(a) Foley v. Addenbrooke, 4 Q. B. son v. Lambard, 2 East, 575, 580;
197. Wollaston vy. Hakewill, 3 M. & G.
(b) Thompson v. Hakewill, 19 C. 297.
B.N.S. 713; 35 L. J.C. P. 18. (f) Stevenson v. Lambard, supra ;
(c) Yates v. Cole, 2B. &.B. 660; see Curtis vy, Spitty, 1 Bing. N. C.
Badeley vy. Vigurs, 4 E. & B. 71; 756.

23 L. J. Q. B.377. (9) Norval v. Pascoe, 34 L. J. C.
(d) Palmer y. Edwards, 1 Doug. 82.
183, n. (h) Holford v. Hatch, 1 Doug.

(e) Congham vy. King, Cro. Car. 183; see Williams vy. Bosanquet, 1
222, S.C. nom. Conan v. Kemise, B. & B. 238, 261; Earl of Derby v.
Sir W. Jones, 245; cited in Steven- Taylor, 1 East, 502, ante, p. 625.
SECT. 11. COVENANTS ANNEXED TO ESTATES IN LAND. 629

An assignee of the lessee is liable upon the. covenants se
running with the land, only so long as he remains assignee ; eens.
and he | does not continue lable, at law or in equity, after he sigument,
has actually assigned away the term; though he may have
assigned it to an insolvent person, and for the mere purpose
of avoiding his liability (2). But an action may be main-
tained against him after he has assigned away the premises
for a breach committed while he was assignee (b). He is
not liable for breaches of covenant committed before the
assignment to him (c). An assignee is not liable after he
has assigned away the term, although the lease contained a
covenant not to assign without the consent of the lessor, and
no consent had been given (d). An assignee cannot main-
tain an action for a breach of covenant committed before the
assignment to him (e).

The personal lability of the original lessee on his cove- pee
nants in the lease is not got rid of by assignment, but he assignment.
may be sued notwithstanding he has assigned the demised
premises; and upon his death the liability upon his ex-
press covenants will devolve upon his executor (f). His
liabilities arising from privity of estate with the reversioner
are put an end to by assignment, and the acceptance by the
reversioner of the assignee as tenant (q).

The lessor, after an assignment of the reversion, cannot sue Right of
for a subsequent breach of a covenant which passes with the ee
reversion to the assignee (/). Under a tenancy, not created
by deed, upon the terms that the tenant should keep the
premises in repair during the tenancy the landlord may
maintain an action for a breach of the contract in not keep-
ing the premises in repair, notwithstanding he has assigned

(a) Lekeux v. Nash, 2 Str. 1221;
Taylor v. Shum, 1 B. & P. 21; On-
slow v. Corrie, 2 Madd. 330; Fagg v.
Dobie, 3 Y.& C. 96; Odell v. Wake,
3 Camp. 394.

(6) Harley v. King, 2 C.M. & RB.
18.

(0) St.Saviour’s Southwarkyv.Smith,
8 Burr. 1271; Coward v. Gregory,
36 L. J..P. 1.

(d) Paul v. Nurse, 8 B. & C. 486.

(e) Lewes v. Ridge, Cro. Eliz. 863,
cited in Canham v. Rust, 8 Taunt. 227,

231; Johnson vy. St. Peter's Hereford,
4A. & EB. 520.

(f) Thursby v. Plant, 1 Wms.
Saund. 240 a; Auriol v. Mills, 4 T.
R. 94, 98; Randall v. Rigby, 4M. &
W. 130, 133.

(g) Ib.; Wadham v. Marlow, 8
East, 314, n.; 1 H. BL 487; and see
Walker's case, 3 Co. 21; 1 Wms.
Saund. 240, 241, ¢; 2 ib. 302, n. (5).

(h) Green v. James, 6 M. & W.
656 ; and see Spencer’s case, 1 Smith’s
L. C., 5th ed. 43, 58.
630 CHAP. VI. ASSIGNMENT OF CONTRACTS.

his reversion, because the contract, not being by a lease
under seal, does not pass with the reversion (a) ; and where
the lease is by deed the lessor remains entitled to the cove-
nants which do not run with the reversion, notwithstanding
an assignment (b).

Cuap. VI. Scr. II]. Asstanmenr or Contracts BY

Marriacs.
Effect of Marriage upon Wife’s Death of Wife.........ccccccceeees 633
Contracts :— Reduction into Possession by
as to her Rights............... 630 Husbands ssicsisivesassacawneis
as to her Liabilities ...... .. 631 | Bankruptey of Husband
Death of Husband............... 632 | Divorce oo... cee eece cee eee

 

Effect of Marriage operates as an assignment in law to the husband,

aoe ies to a qualified extent, of the rights and liabilities of the wife,

contracts; arising out of contracts made before the marriage (c).

as to her Marriage is an absolute gift in law by the wife to the hus-

mshts; and of all chattels personal in possession in her own right ;
but if they be in action, as debts by obligation, contract, or
otherwise, the husband does not acquire them absolutely,
uuless he and his wife recover them, or, as it is called, reduce
them into possession (¢d). The husband must join the wife
as a party in an action upon the contracts of the wife made
before marriage, and cannot sue alone in his own name (e).
In the case of negotiable instruments held by the wife at the
time of the marriage, the husband acquires the right to trans-
fer or indorse them ; but he may sue upon them in his own
name without joining the wife, and, if transferable by in-
dorsement, without an indorsement to himself (/).

(a) Bickford v. Parson,5 C. B. 631; and see Bendix v. Wakeman,
920; and see ante, p. 617. 12 M. & W. 97; ante, p. 234. ©

(6) Stokes v. Russell, 3 T. R. 678. (f) M‘Neilage v. Holloway, 1 B.&

(ec) 2 Bl. Com. 433; 1 Roper’s Ald. 218; and see ante, p. 240; the
Husband and Wife, 2nd ed. 204. observation of Lord Ellenborough in
Contracts made with a wife after  2‘Neilage v. Holloway, that the nego-
marriage depend upon the capacity  tiable instruments of the wife vest ab-
of a married woman as a party to a solutely in the husband upon the mar-

contract. See ‘ Contracts with Mar- riage, as chattels personal in posses-
ried Women,” ante, p. 234. sion, has been pronounced to be incor-

(d) Co. Lit. 3516; 2 Blackstone, rect. See Gaters v. Madeley, 6 M. &
Com. 434). W. 423, 427; Hart v. Stephens, 6

(¢) Milner y. Milnes, 3 T. R.627, Q. B. 987, 943.
SECT. III. ASSIGNMENT OF CONTRACTS BY MARRIAGE. 631

The wife may sue alone upon contracts made with her be-
fore marriage, subject to the action being met by a plea in
abatement on the ground of the husband not being joined
as co-plaintiff; but no other objection can be taken by the
defendant on the ground of her being married («).

If the husband is himself debtor to the wife before mar-
riage, the marriage, in general, operates as a release in law
of the debt (4); but a contract between an intended hushand
and wife, by which he binds himself for the payment of
money to her after his death, is not released by the mar-
riage; the wife surviving may maintain an action upon it
against the representatives of the deceased husband (ce).

The husband becomes liable upon marriage for all the as to wife’s
debts and liabilities of the wife contracted before marriage. eee
The husband may be sued jointly with the wife upon such
debts and liabilities (d) ; but he cannot be sued alone upon
them. Ifthe husband is sued alone, the objection is matter
of substance ; if it appears upon the record, it is a good
ground of demurrer, or motion in arrest of judgment, or
error ; if it transpires upon the evidence, it is a ground of
nonsuit or adverse verdict (e). The non-joinder of the wife
cannot be amended by adding the wife as a defendant under
the Common Law Procedure Act, 1852, s. 222 (f).

The wife may be sued alone upon the liabilities contracted
by her before marriage, subject to a plea in abatement of the
non-joinder of her husband as a co-defendant; but she can-
not take any other objection on the ground of her cover-
ture (g). The wife may be taken in execution upon a judg-
ment against her, whether her husband is taken with her or
not; but the Court will, in general, discharge her, unless she

(a) Milner v. Milnes, 3 T. R. 627;
Morgan v. Painter, 6 T. R. 265; see
ante, p. 234; the husband might
bring a writ of error upon the judg-
ment; Milner v. Milnes, supra.

(6) Co. Lit. 264 6.

(ce) Milbourn v. Ewart, 5 T. R.
881; and see Sintth v. Stafford, Hob.
216; Cage v. Acton, 1 L. Raym.
515.

(d) France y. White, 1 M. & G.

731; Helps v. Clayton, 17C.B.N.S8.
558; 34L.3.C.P.1.

(e) Mitchinson v. Hewson, 7 T. R.
348; Richardson v. Hull, 1 B. & B.
50.

(f) Garrard v. Giubilei, 11 C. B.
N.S. 616; 13 7b. 832; 31 L. J.C. P.
131, 270.

(g) Milner v. Milnes, 3 T. R. 627,
631; Lovell v. Walker, 9 M. & W.
299; see ante, p. 234.
Death of
husband.

632 CHAP. VI. ASSIGNMENT OF CONTRACTS.

has separate property with which she can satisfy the judg-
ment (a).

Upon the death of the husband, leaving the wife surviv-
ing, the rights upon the contracts of the wife before mar-
riage, which have not been reduced into possession by the hus-
band in his lifetime, survive to the wife (b) ; so also with con-
tracts made in favour of the wife after marriage (c) ; and with
contracts made in favour of the husband and wife jointly (d).
Thus, a promissory note made to a wife during coverture,
survives to the wife after the death of her husband, unless
he reduces it into possession in his lifetime (e) ; and the
executors of the husband cannot sue upon such note (f). A
married woman, having lent money to her husband which
she held as an administratrix, took as security the joint and
several promissory note of her husband and two other per-
sons ; it was held that, though no action could have been
brought upon the note during the coverture, yet after the
death of the husband the note survived to the wife, and she
might sue the other makers (g). A bond given to husband
and wife, on the husband’s dying first, survives to the
wife (h). A judgment recovered by husband and wife
jointly vests in the survivor upon the death of either (7).

The lability of the husband upon the contracts of the wife
before marriage continues only during the coverture, so that
upon the death of the husband in the lifetime of the wife the
liability survives against the wife solely, and upon the death
of the wife in the lifetime of the husband the liability de-
volves upon her administrator; unless the creditor has ob-
tained judgment against the husband in the lifetime of the
wife. A Court of Equity will not relieve a surviving husband

(a) Edwards v. Martyn, 17 Q. B.
693 ; Ivens v. Butler, 7 H. & B. 159;
26 L. J. Q. B. 145; see Ferguson v.
Clayworth, 6 Q. B. 269; Newton v.
Boodle, 9 Q. B. 948; Larkin v. Mar-
shall, 4, Ex. 804,

(b) Gaters v. Madeley,6 M. & W.
423.

(c) Richards v. Richards, 2 B. &
Ad. 447, 452; per Parke, B., Bendix
v. Wakeman, 12 M. & W. 97, 99.

(d) Coppin v. ——, 2 P. Wms.
496 ; see ante, p. 216.

(e) Gaters v. Madeley, 6 M. & W.
423; Scarpellini v. Atcheson, 7 Q. B.
864.

(f) Howard v. Oakes, 3 Ex. 136.

(9) Richards v. Richards, 2 B. &
Ad. 447.

(h) Coppin v. —., 2 P. Wms. 496.

(2) Bond vy. Simmonds, 3 Atk. 21;
Coppin v. » 2 P. Wms. 496.

 
SECT. III. ASSIGNMENT OF CONTRACTS BY MARRIAGE. 633

against such judgment by reason of his not having received
any property with his wife; nor, on the other hand, will a
Court of Equity assist a creditor against a surviving hus-
band, who has become discharged from his wife’s liabilities
by her death, by reason of his having acquired her property
by the marriage (a).

Upon the death of the wife in the lifetime of the husband, Death of
the rights arising out of contracts made with her before or “™
during coverture, if not previously reduced into possession
by the husband, pass to the administrator of the wife (0).
Thus, upon a bond given to the wife during coverture, after
the death of the wife, the husband can no longer sue in his
own right, but can become entitled to sue only by obtaining
administration to the wife (c}. So, a promissory note made
to the wife before marriage, upon the death of the wife in
the lifetime of the husband, and before he has reduced it
into possession, passes to the wife’s administrator, who is the
proper party to sue upon it(d). But contracts made with
husband and wife jointly survive to the husband in his own
right upon the death of the wife (e).

Upon the death of the wife in the lifetime of the husband
the liabilities contracted by her before marriage survive
against her representatives, and her husband can be charged
only as her administrator; unless the creditor has obtained
judgment against him in the lifetime of the wife (/f).

The reduction into possession by the husband, so as to ex- Reduction.
clude absolutely the interest of the wife, consists in some it? Li
act which gives the husband the possession of the chose in ac- band.
tion, or what is equivalent thereto ; as, in the case of a debt,
the payment of the money to the husband or to his agent (9).

Money paid to the wife is regarded in law as in the posses-

(a) Heard v. Stamford, 3 P. Wms.
409; Casestemp.Talb. 173; Woodman
vy. Chapman, 1 Camp. 189; and see
Mitchinson v. Hewson,7 T. R. 348.

(6) Betts v. Kimpton, 2 B. & Ad.
273. :

(ce) Day v. Padrone, 2 M. &S. 396
n. (4).

(d) Hart v. Stephens, 6 Q. B. 937.

(e) Coppin vy. , 2P. Wms. 496 ;
and seeante, p. 216.

(f) See ante, p. 632.

(g) See 1 Roper, Husb. and Wife, 2nd
ed. 208, 222 ; and see Purdewv. Jack-
son, 1 Russ. 1; Scarpellini v. Atche-
son, 7 Q. B. 864, 875.

 
634 CHAP. VI. ASSIGNMENT OF CONTRACTS.

Reduction sion of the husband, though it is the proceeds of property
See held by trustees for her separate use; so that where the
band. wife received such money and lent it to the defendant, it
was held to have been reduced into possession, and that the
husband must sue for it in his own name only during the
coverture, and was entitled to sue in his own right after the
wife’s death (a). A promissory note had been given to the
wife before marriage, and the husband had received the in-
terest on the note during the life of the wife; it was held
that he had not thereby reduced the note into possession,
but upon the wife’s death it passed to her administrator ()).

If an action is brought in the names of husband and wife
upon a contract of the wife before marriage, and the hus-
band dies before judgment, the right of action survives to
the wife who may, by entering a suggestion of her husband’s
death upon the record, prosecute the suit to judgment for her
own sole use; and even if the husband dies after judgment,
but before execution, the benefit of the judgment will survive
to the wife (c) ; and the wife surviving is not bound by the
undertakings of the husband in the action (d). If the wife
dies in the lifetime of the husband pending such action, the
suit abates, and the benefit of the contract devolves upon
the wife’s administrator (e). If the husband in his lifetime
brings an action in his own name upon a contract im respect
of which he might have joined his wife, it is said to amount
to an election to take it himself and exclude the interest of
the wife, so that upon his death it would not survive to
her (f).

In equity, where the husband assigns a chose in action
of his wife for valuable consideration, and dies before either
he or the assignee has actually obtained possession of it,
leaving the eile surviving,—whether the chose in action was
reversionary, so that it could not have been reduced into pos-

(a) Birdy. Peagrum, 13 C. B. 639 ; (d) Lee v. Armstrong, 9 M. & W.
22 L: J. C. P.166; see Sloper v. Cot- 14:
trell, 6 KB. & B.497; 26 L. J.Q. B. 7. @) Checcht v. Powell, 6 B. & C.

(b) Hart v. Stephens, 6 Q. B. 937. 258

(ce) Gaters v. Madeley, 6 M. & W. if) Gaters v. Madeley, 6 M. &
423, 427 ; Sherrington v. Yates,12  W. 428, 426; Garforth vy. Bradley,
M. & W. 855, 865; Anon.3 Atk. 726. 2 Ves. sen. 675, 676.
SECT. IIf. ASSIGNMENT OF CONTRACTS BY MARRIAGE. 635

session, or whether it was not reduced into possession through
neglect,—in either case the wife surviving will be entitled as
against the assignee for valuable consideration (a).

Upon the bankruptcy of the husband the debts and choses Bank-
in action to which he is entitled in right of his wife become ae
vested in the assignees, who have like remedy to recover the
same in their own names as the bankrupt himself might have
had if he had not been adjudged bankrupt (b). The assig-
nees are not entitled to sue in their own names ouly for the
recovery of debts, for which the husband could not have sued
without joining the wife, as on a promissory note made to
the wife before her marriage (c); they must sue in their own
names jointly with that of the wife for the recovery of debts
in respect of which it would have been necessary for
the husband to join the wife(d). Upon the death of the
bankrupt husband before a chose in action of the wife is re-
duced into possession, the right of survivorship of the wife
prevails over the right of the assignees (e).

The bankruptcy of the husband during the marriage dis-
charges the debts of the wife for which the husband has be-
come liable by reason of the marriage, both as against the
husband and the wife (/).

Upon a divorce the wife becomes solely entitled, “ as if at Divorce.
the date of the divorce, her husband had died, and restored
her to the position of a feme sole,” to all the rights arising
out of contracts which have accrued in her right before or
during the coverture and which have not been reduced into
possession by the husband during the coverture (4).

Hornsby v. Lee, 2 Madd. 16; Sher-
rington vy, Yates, 12 M. & W. 883,
865.

(a) Filison vy. Elwin, 13 Simon,
309; Ashby v. Ashby, 1 Coll. 553;
Purdew v. Jackson, 1 Russ. 1; Hon-

ner v. Morton, 3 Russ. 65; Hutchings
v. Smith, 9 Sim. 137; Story, Eq. Jur.
§ 1412.

(6) See post, p. 615.

(c) Sherrington v. Yates, 12M. &
W. 855.

(d) Richbell v. Alexander, 10 C. B.
N.S. 324; 30 L. J.C. P. 268.

(e) Mitford v. Mitford, 9 Ves. 87;

(f) Miles v. Williams, 1 P. Wms.
249 ; Lockwood v. Salter, 5 B. & Ad.
303.

(yg) Wells v Malbon, 31 Beav. 48;
81 L.‘J. C. 344; as to the effect of
judicial separation and of an order of
protection of property under the Di-
vorce and Matrimonial Causes Act,
see ante, p. 237.
Right of
executor
upon con-
tracts of
deceased,

Tiability of

executor

636 CHAP, VI. ASSIGNMENT OF CONTRACTS.

Caap. VI. Scr. IV. Assignment or Contracts py Dzatu.

Right of Executor upon Con- Contracts concerning Land ... 640

 

tracts of Deceased ............ 636 | Bills of Exchange and Promis-
Liability of Executor............ 636 sory Notes ......... weve 641
Liability of Heir and Devisee 637 | Joint Contracts ...............21. 642

Covenants annexed to Estates

Contracts discharged by Death
in Land

gas Lea sasienaunesesaemtay 639 | OF Party sissjeicns sacewmar sera O42

AN executor or administrator becomes entitled, in general, to
all the debts and rights of contract to which the deceased
was entitled at the time of his death (a). As a contract is
not assignable at law, the executor or administrator is alone
entitled to maintain an action at lawupon a contract of the de-
ceased, although the deceased may have assigned the benefit
of it in his lifetime ; the assignee is not entitled to sue in his
own name (4). So, the executor is alone entitled at law to
maintain an action upon the contract, although the benefit of
it may have been bequeathed by the will of the deceased,
and although the executor may be bound, in the distribution
of assets, to transfer the benefit to the legatee (c).

If there be more than one executor, they jointly represent
the testator and take the legal interest in his estate ; there-
fore they must sue jointly on the contracts made with him (d) ;
but if some of the executors are omitted as plaintiffs, the
defendant can object only by a pleain abatement (e). And if
some of the executors enter ito a new contract, though in
the course of administration of the estate, they may alone
sue upon it without joining the other executors (/).

An executor or administrator is lable, in general, to the
extent of the assets which come to his hands to be adminis-

(a) 1 Wms. Ex. 5th ed. 700; 1
Wnus. Saund. 216 a, n. (1).

(6) See ante, p. 601; Brandt v.
Heatig, 2 Moore, 184.

(c) Canham v. Rust, 8 Taunt. 227.

(2) Wms. Ex. 6th ed. 818; 1692;
Foxwist v. Tremaine, 2 Wms. Saund.
212; a plea that one of the plaintiffs,
executors, had renounced was held bad,

Creswick v. Woodhead, 4 M. & G.
811; but renunciation may now be
effected under 20 & 21 Vict. c. 77,
s. 79. see In the goods of Whitham,
1 Weekly Notes, 408.
(e) Wms. Ex. 5th ed. 1693.

(f) Brassington v. Ault, 2 Bing.
177; and see Heath v. Chilton, 12
M. & W. 682.
SECT. IV. ASSIGNMENT OF CONTRACTS BY DEATH. 637

tered, upon all the contracts of the deceased remaining un-
discharged at his death (a). Accordingly, the executor or ad-
ministrator is liable, so far as he has assets, for debts of every
description due from the deceased, either debts of record, as
judgments, statutes, or recognizances ; or debts due on spe-
cial contract, as for rent or on bonds, covenants or the like
under seal; or debts on simple contracts, as notes unsealed,
and promises not in writing either expressed or implied (0).

If there be several executors, all who have proved the
will must be joined as defendants; if some only are sued,
they may plead in abatement the non-joinder of other exe-
cutors who have proved ; but it is not necessary to join those
executors who have not proved (c).

upon con-
tracts of de-
ceased.

A person may also charge his real assets in the hands of Liability

heir and

his heir or devisee by a contract under seal in which he binds ae

himself and his heirs, or covenants for himself and his heirs,
with an express designation of his heirs in the contract.
Under such contract the heir was liable by the common law
to the extent of the lands or real assets descended to him
from the covenantor or obligor; but there was no remedy
upon such contracts against a devisee of the lands (d).

The law was altered in this respect by the statute 3 Wm.
& Mary, c. 14, for which the statute 1 Wm. 1V.c. 47 has been
substituted. By s. 2 of that Act it is enacted to the effect
that all wills and testamentary dispositions of any lands
tenements or hereditaments shall be deemed, as against such
person with whom the person making any such will or tes-
tamentary dispositions shall have entered into any bond,
covenant, or other specialty binding his heirs, to be void.
And by s. 3, for the means that such creditors may be enabled
to recover upon such bonds, covenants, and other specialties,
that every such creditor shall have his action upon the said
bonds, covenants, and specialties against the heir of such ob-
ligor, or covenantor, and such devisee or the devisee of such

(a) 1 Wma. Saund. 216, n. (1); 2 Ex. 5th ed. 1750; Ryallsv. Bramall,
Wus. Ex. 5th ed. 1557. 1 Ex. 734,

(b) Ib. (d) See ante, p. 86; Hunting v.

(c) 1 Wms. Saund. 291 m;2Wms. Sheldrake, 9 M. & W. 256, 263.
638 CHAP. VI. ASSIGNMENT OF CONTRACTS.

re of devisee jointly. And by s. 4, that in case there shall not be any

devisee. heir at law against whom joiutly with the devisee a remedy
is thereby given, the creditor shall have his action against
such devisee solely (a).

By the common law the heir, when sued upon an obligation
of the ancestor, might plead riens per descent, that is to say,
that he had not any lands by descent from the ancestor at
the time of suing out the writ, and though he had aliened
the lands descended before the suing out of the writ, he was
entitled to the verdict on that issue, unless it could be proved
that he had aliened them for the purpose of defrauding the
plaintiff of his debt (b). But by the statute 3 Wm. & Mary, c.
14, s. 5 (re-enacted by 1 Wm. IV. c. 47, s. G), the heir at law
in such case was made answerable for the debts and coverants
to the value of the land so aliened by him. And by s. 6, of
the same statute (re-enacted by 1 Wm. IV. c. 47, s. 7), it is
provided to the effect that to the plea by the heir of riens per
descent the plaintiff may reply that he had lands, tenements,
or hereditaments, from his ancestor before the writ brought,
and if upon issue jomed thereupon it be found for the plain-
tiff, the jury shall enquire of the value of the lands, tenements,
or hereditaments so descended, and thereupon judgment shall
be given and execution shall be awarded to the value of
the lands as if the debt were his own. By the same statute
3 Wm. & Mary,c. 14, s. 7, (re-enacted by 1 Wm. IV. c. 47,
s. 8) it 1s enacted to the effect that devisees shall be made
liable and chargeable in the same manner as the heir at law,
notwithstanding the lands devised shall be aliened before the
action brought (c).

Real estate Contracts under seal which do not expressly bind the heir

of deceased i ; y
made assets remain, as at common law, without any remedy by action

eee against the heir or devisee, and under the above statutes
debts. contracts binding the heir were not made a charge upon the

land itself (d) ; but by the statute 3 & 4 Wm. IV. c. 104, all

(a) As to this statute see 2 Wms. of heirs and devisees and the proceed-
Saund. 8d; Chitty’s Statutes, tit. ings against them, 2 Wms. Saund. ts

Wills. 8; Bullen and Leake, Prec. Pl. 2nd
(4) See 2 Wms. Saund. 8, (n.); ed. 145, 509.
Brown v. Shuker, 1 C. & J. 583. (d) Richardson v. Horton, 7 Beay.

(c) See further as to the liabilities 112.
SECT. IV. ASSIGNMENT OF CONTRACTS BY DEATH. 639

the real estate of a deceased person has been made assets
to be administered in Courts of Equity for the payment of
his debts as well due on simple contract as on specialty,
provided that in the administration of assets by Courts of
Equity under that Act, all creditors by specialty in which
the heirs are bound shall be paid the full amount of the
debts due to them before any of the creditors by simple
contract or by specialty in which the heirs are not bound
shall be paid any part of their demands (a).

The benefit of covenants annexed to real estate or, a8 it Covenants
is called, running with the land, as covenants for title, to re- oe
pair, and the like, are assigned in law with the land to the heir
or devisee of the deceased owner, if the estate be freehold,
and to the executor, only if the estate is a chattel interest in
the land (b). Andif such covenants are broken in the lifetime
of the deceased, so that he has acquired aright of action upon
them, but no damage has accrued to his personal estate, the
right of action runs in like manner with the land (c). Accord-
ingly, where an executor brought an action upon covenants
for title contained in a conveyance of land to the testator,
charging breaches in the testator’s lifetime, but not show-
ing any damage to the personal estate, it was held that he
could not recover (d); and the devisee of the same land
having brought an action for the same breaches of the same
covenants, it was held that he was entitled to maintain the
action and to recover in respect of the deterioration in the
value of the land by reason of the defective title (e). So,
upon a covenant contained in a deed of conveyance of land
to make further assurance upon request, the heir of the
covenantee may bring an action for a breach of covenant
in refusing to make such assurance upon a request made
by the ancestor in his lifetime, whereby after the death
of the ancestor the heir was ejected (f). But it is said that
the executor may sue for a breach of covenant running
with the land, committed in the lifetime of the covenantee,

(a) See ante, p. 87. (d) Kingdon v. Nottle, supra.

(4) See ante, p. 625. (e) Kingdon v. Nottle, 4M. & 8. 53.

(c) Kingdon vy. Nottle, 1 M. & 8. (f) King v. Jones, 5 Taunt. 418;
355. Jones v. King, 4 M. & 8. 188.
640 CHAP. VI. ASSIGNMENT OF CONTRACTS.

Corennats in respect of any damage caused thereby to the personal

real estate, State (a).

Where the covenant, though concerning the realty, does
not run with the land, so that the heir or devisee cannot sue
upon it, the executor is the only party entitled to bring the
action ; as, upon a covenant in a lease not to cut trees, (the
trees being excepted from the demise, and the covenant,
therefore, being collateral and not running with the land),
the executor was held entitled to sue fora breach committed
in the lifetime of the covenantee (b); and upon a covenant
to repair contained in a lease made by a tenant for life, and
therefore expiring with his estate, the executor was held en-
titied to sue (c); nor is any special damage to the personal
estate essential to the right of action in such cases (7). So
also, where the testator had been evicted in his lifetime in
consequence of a defect in the title, so that there were no
heirs or assigns of the land, it was held that the damages
belonged to the executor who was entitled to sue upon the
covenants for title (¢).

The burden of a covenant running with the land cannot
be annexed in law to an estate in the land, except in the
case of covenants made between lessor and lessee; in
which case the burden of such covenants may be made as-
signable with the term and with the reversion; upon tne
death of the termor the burden of such covenants passes
with the term to the executor or legatee, and upon the
death of the reversioner it passes with the reversion to his
heir or devisee, or, if the reversion is a chattel interest, to
his executor or legatee (jf).

Contracts Upon a contract of sale of land the executor, and not the
ind = heir, of the deceased purchaser becomes entitled in law to

a right of action vested in the deceased for a breach by the
vendor in not completing the purchase, and may recover the
loss of interest on the deposit money, and the expenses of

(a) Kingdon y. Nottle, 1 M. & 8. (ec) Ricketts v. Weaver, 12 M. &

355, 364; 4 ib. 58, 57; Knights v. W. 718.

Quarles, 2 B. & B. 102, 105; and (d) Ib.

see Wms. Ex. 6th ed. 757. (e) Lucy v. Levington, 2 Lev. 26;
(4) Raymond v. Fitch,2 C. M.& 1 Ventr. 175.

R. 588 ; ante, p. 619. (f) See ante, p.615, 625.
SECT. IV. ASSIGNMENT OF CONTRACTS BY DEATH. 641

investigating the title (a). And the executor, and not the
heir, is entitled to a right of action vested in the deceased
against an attorney for breach of duty in investigating the
title of land conveyed to the deceased (b). It is said “ that
if a man covenant by deed to another and his heirs to infeoff
him and his heirs of the manor of D., and will not do it, and
he to whom the covenant is made die, his heir shall have a
writ of covenant upon that deed” (c); but this doctrine seems
inconsistent with the principles of law above stated.

In equity a contract for the sale of land is treated as if it
was specifically executed from the date of the contract, so
that, upon the death of the purchaser before completion, the .
equitable title to the land passes to his heir or devisee, who
may insist upon specific performance against the vendor,
and require the purchase money to be paid out of the per-
sonal estate of the deceased; and upon the death of the
vendor before completion the right to the purchase money
passes to his executor or administrator, who may insist upon
specific performance against the purchaser and require the
heir of the vendor to convey the land (d).

The executor or administrator of a deceased person be- Bills of ex-
comes entitled to the right of action upon all bills, notes, oe
and negotiable securities, of which the deceased was the 2s
holder at the time of his death (ec); and the executor or
administrator is entitled to indorse and negotiate such secu-
rities; but he would become personally liable upon such
indorsement (f). Where the deceased holder of a promis-
sory note payable to order had signed his name on the note
for the purpose of indorsement, but had not delivered it, and
his executor delivered it to the proposed indorsee but did
not indorse his name, it was held that there was no com-
plete indorsement, and the person to whom it was so de-

(a) Orme v. Broughton, 10 Bing. Tudor, L. C. 8rd_ed. p. 754; see

533. Cooper v. Jarman, L. Rep. 3 Eq. 98;
(0) Knights v. Quarles, 2 B.& B. 361. J.C. 85.

102. (e) LTimmis v. Platt, 2 M. & W.
(c) Fitz. N. B. 145, C., cited and 720. :

followed in Jones vy. King, 4M. &S8. (f) Robinson vy. Stone, 2 Strange,

188, 191. 1260; see per Buller, J., King v. Thom,

(d) Story, Eq. Jur.§ 790; notesto 1T. R. 487, 489; Childs v. Monins,
Fletcher vy. Ashburner, 1 White & 2B. &B. 460. -
T
Joint
Contracts.

Contracts

discharged

642 CHAP. VI. ASSIGNMENT OF CONTRACTS.

livered acquired no right to sue upon it (a). The holder of a
bill or note, by delivery of it for valuable consideration with-
out indorsement, may create an equitable title, which either
he or his executor may be compelled to complete (b).

Upon the death of one of several persons jointly entitled
under a contract, the legal right to sue for a breach of the
contract remains in the survivors only, whether the breach
occurred before or after the death of the joint party; the
executor or administrator of the deceased person cannot sue
either alone, or jointly with the survivors; upon the death
of the last survivor, in whom solely the right became vested,
his executor or administrator becomes entitled (+). If the
deceased person was severally entitled under a contract,
though others were also severally entitled with him, his exe-
cutor becomes entitled and may sue (d).

Upon the death of one of several persons jointly liable
upon a contract, the lability devolves upon the surviving
parties, and the representative of the deceased cannot be
sued at law joimtly with the survivors; the entire liability
ultimately devolves upon the last survivor of the persons
jointly liable, and after his death it is transferred to his exe-
cutor or administrator in the same manner as the liability
upon a contract made by him alone (e).

Contracts which depend upon the existence, or the per-

by death of Sonal qualities, skill, or services of one of the parties are, in

party.

general, discharged by the death of that party (f); as, a
contract of marriage (g). The contract of an apprentice with
his master to learn his art and serve him, without any men-
tion of executors, was held to be discharged by the death of
the master, because the apprentice is bound from a personal

(a) Bromage v. Lloyd, 1 Ex. 32. B.& C. 254.

(2) Watkins vy. Maule, 2 Jac. & (e) See ante, p. 215.
Wal. 237; and see Whistler y. For- (f) 2 Wms. Ex. 5th ed. 560; per
ster, 14 C, B. N. 8. 248; 82 L. J. Parke, B., Siboni v. Kirkman, 1M. &
C.P. 161; cited ante, p. 612. W. 418, 423; Wentworth v. Cock,

(c) Wms. Ex. 5th ed. 1689; see 10 A.& EF. 42; Beckham y. Drake,
ante, p. 216. 8 M. & W. 846, 854.

(d) Wms. Ex. 5th ed. 1691; seo (g) See Chamberlain vy. William-
ante, p. 217 ; Withers v. Bircham, 3 son, 2M.&S8. 408.
SECT. 1V. ASSIGNMENT OF CONTRACTS BY DEATH. 645

knowledge of the integrity and ability of the master (a). A
contract to build a lighthouse was held to be discharged by
the death of the contractor, as being a matter of personal
skill and science (0),

Contracts of agency, giving authority to one of the parties
to act for the other, are, in general, discharged by the death
of the principal (c). The plaintiff was employed by the
owner of a picture to sell it, upon the terms that if he suc-
ceeded he should be paid £100; the owner of the picture
died, and after his death the plaintiff succeeded in selling
the picture and claimed the £100 upon the original contract
from the defendant as administrator of his employer ; it was
held that he had no claim against the administrator, because
the contract was revoked by the death, though he might
recover for the value of his services rendered to and accepted
by the defendant (d). A contract made by a firm consisting
of two partners for the employment of an agent in their
business for a term of years, was held to be discharged by
the death of one of the partners before the expiration of the
term (e).

A person contracted to erect a certain building and died
before it was begun; it was held that his executors, having
completed the contract, might recover the price in their repre-
sentative character as executors(f). <A tailor received an
order from the defendant for a coat and died before it was
completed; it was held that his administratrix, having
finished the coat and delivered it to the defendant, who
accepted it, might sue for the price in her representative
character (9).

Where a person had contracted for the delivery to
him of a certain quantity of goods monthly until a certain
date, and for any further quantity monthly he might re-
quire, and died before the contract was completed, his ad-
ministrator was held liable for not accepting the monthly

(a) Baxter v. Burfield, 2 Strange, (e) Tasker v. Shepherd, 6 H. & N.
1266. 575; 30 L. J. Ex. 207.

(b) Cited per Patteson, J., Went- (f) Marshall vy. Broadhurst, 1 C.
worth v. Cock. 10 A. & E. 42, 45. & J. 408.

(c) See ante, p. 288. (9) Werner v. Humphreys, 2M. &

(2) Campanari vy. Woodburn, 15  G. 853.
OC. B. 400; 241. J. ©. P. 18.
2172
Contrae's

discharged

644 CHAP. VI. ASSIGNMENT OF CONTRACTS.

deliveries of the goods in pursuance of the contract after

by death of his death (w). So, where a person guaranteed the running

party.

Rights of
contract
vest in
assignees,

balance of an account for goods supplied to another, until
he gave notice to the contrary, it was held that the con-
tract was not determined by his death, and that his exe-
cutor was liable on the guarantee for goods supplied after
his death, but before any notice given of revoking the gua-
rantee (0).

A person may validly contract that his executor shall pay
a sum of money after his death, and such contract is bind-
ing upon his executor (¢), and it is a contingent liability
during his lifetime, which may be proved against his estate
in case of bankruptcy(d).

A right of action for a breach of contract in respect of
damage which is strictly personal is discharged by the death
of the party entitled thereto; as, a right of action for a
breach of promise of marriage, where there is no special
damage to the estate (e); so, a right of action for a breach of
the contract of a medical man to use due care and skill, in
respect of negligence or unskilfulness affecting the life or
health of his employer; and a right of action for imprison-
ment caused by the negligence of an attorney (/).

Cuap. VI. Srcr. V. AsstgnmEent By BANKRUPTCY.

Rights of Contract of Bank- Prustee asia cacssicrines ane yes 649
rupt vest in Assignees ...... 644] Debts, etc., in Order and Dis-
Rights of Action ...........06 645 position of Bankrupt ...... 650
Executory Contracts ............ 647| Contracts made after Bank-
Contracts of Bankrupt as PUPLCY ascireainssgeay saaniitewenaan 650

Tre rights of contract of a bankrupt, in general, become
vested in the assignees under the Bankrupt Law Consolida-
tion Act, 12 & 18 Wick, c. 160, s. 141 (following 6 Geo. IV.
c. 16, s. 63; and 1 & 2 Wm. IV.c. 56, s. 25), which as-

a” Wentworth v. Cock, 10 A. & E. (d) Ex p. Tindal, 8 Bing. 402; see
ante, p. 560.

*) Bradbury v. Morgan, 1H. & (e) Chamberlain v. TVilliamson, 2
C. 249 ; 31 L. J. x. 462. M. & 8. 408.

(e) Powell v. Graham,7 Taunt. 580. (7) 1b. p. 415 ; see post, p. 646.
Post; DP
SECT. V. ASSIGNMENT BY BANKRUPTCY. 645

signs to them all the personal estate of the bankrupt. It
enacts “‘that when any person shall have been adjudged a
bankrupt, all his personal estate and effects, present and fu-
ture, wheresoever the same may be found or known, and all
property which he may purchase, or which may revert, de-
scend, be devised or bequeathed or come to him, before he
shall have obtained his certificate (or order of discharge,
which has been substituted for the certificate by the Bank-
ruptcy Act, 1861, 24 & 25 Vict. c. 184, s. 157), and all
debts due or to be due to him, wheresoever the same may
be found or known, and the property, right, and interest in
such debts, shall become absolutely vested in the assignees
for the time being, for the benefit of the creditors of the
bankrupt, by virtue of their appointment; and after such
appointment, neither the bankrupt, nor any person claim-
ing through or under him, shall have power to recover the
same, nor to make any release or discharge thereof, neither
shall the same be attached as the debt of the bankrupt by
any person according to the custom of London or otherwise,
but such assignees shall have like remedy to recover the same
in their own names as the bankrupt himself might have had,
if he had not been adjudged a bankrupt.”—“ As the object of
this law is to benefit creditors, by making all the pecuniary
means and property of the bankrupt available to their pay-
ment, it has, in furtherance of this object, been construed
largely, so as to pass, not only what in strictness may be
called the property and debts of the bankrupt, but also
those rights of action to which he was entitled for the pur-
pose of recovering, in specie, real or personal property, or
damages in respect of that which has been unlawfully di-
minished in value, withheld, or taken from him” (a).

A right of action for unliquidated damages for a breach pionts of
of contract will pass by bankruptcy to the assignees (1). et ctl
A builder having contracted to execute certain building oo
work, contracted with the defendant for the supply of stone
for that purpose, who made default in delivering the stone

(a) Rogers v. Spence, 18 M. & W. (6) Wright v. Fairfield,2 B. & Ad.
571, 580 727.
Rights of
action of
bankrupt.

646 CHAP. V1. ASSIGNMENT OF CONTRACTS.

according to his contract, whereby the builder was unable
to complete the work; it was held that, upon the subse-
quent bankruptcy of the builder, the right of action for the
breach of contract by the defendant in not delivering the
stone passed to the assignees, who might recover all the da-
mages to which the bankrupt was entitled (a). So, a right
of action for the wrongful dismissal of the bankrupt, in
breach of a contract to employ him in a certain business
for a term of years, was held to pass to the assignees of the
bankrupt (b). A right of action by a printer against the
defendant for not delivering a printing-machine under a
contract to that effect, whereby his trade was stopped, was
held to pass to his assignees, who became entitled to re-
cover the damages sustained in the loss of business (c).
Where the bankrupt, an: undertenant, had been distrained
upon by the superior landlord for rent due from the ori-
ginal lessee, it was held that the right of action against the
latter, in respect of the distress of the bankrupt’s goods,
passed to the assignees (d). A right of action to recover a
sum of money which the bankrupt had been induced to pay
by means of a false representation was held to pass to his
assignees (e).

Rights of action for wrongs personal to the bankrupt,
for which he would be entitled to a remedy whether his pro-
perty were diminished or impaired or not, are not within
the enactment, even in cases where injuries of this kind have
been accompanied or followed by loss of property :—to this
class the action of trespass to the land, and that of trespass
to the person or goods of the bankrupt belong ; also the ac-
tion for a breach of promise of marriage; and the action
against a medical man for negligence in his professional
treatment. In such actions the primary and essential cause
of action, bemg the personal injury to the bankrupt, still
remains in him, and does not pass to the assignees (f). A

(a) Wright v. Fairfield, supra.

(b) Beckham vy. Drake, 8 M. & W.

816; 1172). 315; 2H. L. C. 579.

(c) Stanton v. Collier, 3H. & B.

274; 23 L. J, Q. B. 116.

(d) Hancock vy. Caffyn, 8 Bing.

358.

(e) Hodgson vy. Sidney, L. Rep.

1 Ex. 3138; 35 L. J. Ex. 182.

(f) Drake v. Beckham, 11 M. &
W. 315, 319; Beckham vy. Drake,
8 M. & W. 846, 854; 2 H. L. C.
579, 597, 634; Brewer v. Dew, 11
M. & W. 625; Rogers v. Spence,
13 M. & W. 571; 12 Cl. & Fin. 700;

“etherell v. Julius, 10 C. B. 267.
SECT. V. ASSIGNMENT BY BANKRUPTCY. 647

right of action against an attorney for negligence in defend-
ing an action, whereby his client suffered judgment and
was taken in execution, was held not to pass to the assig-
nees of the client upon his bankruptcy, because it wasa per-
sonal wrong, for which he would be entitled to a remedy,
irrespectively of any pecuniary loss sustained ; but the right
of action against the attorney under the same circumstances
for the pecuniary loss occasioned by the execution against
the property of the client, was held to pass to the assignees,
because such pecuniary loss was the substantial and primary
cause of action (a).

The assignees of a bankrupt are entitled, in general, to Executory
the benefit of the contracts of the bankrupt which are exe- a ae
cutory at the time of the bankruptcy; they have the right
of adopting or repudiating such contracts, according as they
may think them likely to prove beneficial or the contrary.
“Tn order to enforce these contracts itis only necessary that
the assignees should perform all that the bankrupt was
bound to perform, as precedent or contemporary conditions,
at the time when he was bound to perform them, and the
bankruptcy has no other effect on the contracts, than to put
the assignees in the place of the bankrupt, neither rescind-
ing the obligations on either side, nor imposing new ones, nor
anticipating the period of performance on either side (0).
If the assignees do all that the bankrupt ought to have
done, they may recover against the contractor the damages
which the bankrupt himself could have recovered if he had
performed his contract; if they omit to do so, they lose
the benefit of the contract, and the other contracting party
has his remedy against the bankrupt’s estate’? (c).

The assignees are not required to give express notice of
their intention to adopt the contract. All that they are
bound to do is to perform the bankrupt’s part of the con-
tract, as and when he should have done it himself. But
they may by an express waiver of the contract discharge

(a) Wetherell v. Julius, 10 0.B. 267. c) Per Parke, B., Gibson v. Car-
(8) Per Rolfe, B., Gibson v. Carru- — ruthers, 8 M. & W. 3821, 333; Boor-
thers, 8 M. & W. 321, 326. man v, Nash, 9 B. & C. 145.
Contracts
involving

648 CHAP. VI. ASSIGNMENT OF CONTRACTS.

the other party from all obligation towards them (a). In
a case where the assignees took no steps to enforce a con-
tract of the bankrupt for a long time after the bankruptcy,
it was held that there was evidence from which a jury might
infer that they had abandoned the contract (b).

Where goods-have been sold to a person who becomes
bankrupt before delivery and the vendor retains a lien on
the goods for the price, the right to the goods under the
contract of sale passes to the assignees of the bankrupt ; but
they cannot claim possession of the goods without paying the
price (c). The bankrupt, before his bankruptcy, contracted
to buy goods of the defendant to be shipped on board a ves-
sel to be chartered by him and sent to Odessa for that pur-
pose, and, having chartered and sent the vessel according to
the contract, afterwards became bankrupt ; it was held that
the defendant was not justified in refusing to deliver the
goods by reason of the bankruptcy, and that the assignees,
being ready and willing to pay for the goods, were entitled
to sue the defendant for not delivering them ().

A policy of insurance effected by a person upon his own
life, upon his bankruptcy, passes to his assignees; and where
the bankrupt, after his bankruptcy, had assigned such a policy
to a third person, who paid the premiums and upon the death
of the bankrupt received the sum insured, it was held that
the assignees might recover the amount, deducting the pre-
miums, as money received to their use (e). Assignees in
bankruptcy are not assignees within the meaning of a con-
dition in a life policy to the effect that it should be void in
case of death caused by suicide, except in the hands of bond
fide assignees; so that on the death of the bankrupt by
suicide they are not entitled to be paid the amount insured
by such policy (f).

Executory contracts in which the personal labour, skill, or
conduct of the Lankrupt forms a material part of the con-

(a) Gibson v. Carruthers, 8M. & 951; Miles v. Gorton, 2 C. & M.504.

W. 321, 329, 334. “(d) Gibson v. Carruthers, 8 M. &
(b) Lawrence y. Knowles, 5 Bing. W. 321.

N. C. 399. (e) Schondler v. Wace, 1 Camp. 487.
(c) Bloxam v. Sanders, 4 B. & C. (f) Jackson v. Forster, 1 E. & F.

941; Bluxam v. Morley,4B. & C. 463; 28 L. J. Q. B.166; 29 id. 8.
SECT. V. ASSIGNMENT BY BANKRUPTCY. 649

sideration do not, in general, pass to the assignees (a). personal
“The contract of partnership is a familiar instance ; and in *"
every case where the motive or consideration of the solvent
party was founded, wholly or in part, upon his confidence in

the skill or personal ability of the bankrupt, if the bankrupt
from his circumstances, is unable to perform his part, the
assignees are not entitled to substitute their own capacity,

or skill, or credit, for that of the bankrupt” (0). If an order

is given to build a house, and the builder, after beginning to
build it, becomes bankrupt, and the house is afterwards com-
pleted by the assignees, they may recover under the order (c).

But it seems doubtful how far the assignees would acquire
the right of completing a contract of that kind made with
the bankrupt (d).

The bankruptcy transfers to the assignees only those con- Contractsof
tracts to which the bankrupt is beneficially entitled, not Pankruptas
those to which he is entitled only as trustee; hence, if the
bankrupt before bankruptcy has assigned the beneficial in-
terest in a contract to which he was entitled, after bank-
ruptcy the right of action upon the contract remains vested
in him as trustee for the benefit of the assignee of the con-
tract, and an action upon the contract must be brought in
the name of the bankrupt, and not of his assignees in bank-
ruptcy (e). If the bankrupt has assigned a debt only as
security for a debt due from him to the assignee, and at the
time of the bankruptcy the debt secured is less than the debt
assigned, leaving a balance of the latter beneficially vested
in the bankrupt, the right of action vests in the assignees in
bankruptcy ; in such case they would sue as trustees of the
assignee of the debt in respect of the amount for which it had
been assigned as security, and they would sue in their own

(a) See Gibson v. Carruthers, 8 (d) See Knight v. Burgess, 33 L. J.
M. & W. 321, 333,343; Beckhamy. ©. 727.

Drake, 8 M. & W. 846; 11 2. 315; (e) Winch v. Keeley, 1 T. R. 619;
2H. L. C. 579. Carpenter v. Marnell, 3 B. & P. 40;

(b) Per Lord Abinger, C.B., Gibson and see Dangerfield v. Thomas, 9 A.
vy. Carruthers, 8 M. & W. 321, 343. & EH. 292; D’Arnay v. Chesneau, 13

(ec) Whitmore vy. Gilmour,12M.& M.&W. 796.
W. 808, 810.
Debts in
order and.
disposition
of bank-
rupt.

Contracts
made after

650 CLAP. VI. ASSIGNMENT OF CONTRACTS.

right in respect of the balance as forming part of the bank-
rupt’s estate (a).

Upon a policy of insurance on a cargo of goods two claims
arose, one for an average loss, and the other for a return of
part of the premiums in a certain event which happened; the
insured, having previously assigned the goods, together with
the benefit of the policy so far as concerned the goods, after-
wards became bankrupt; it was held that the right of action
in respect of the average loss remained in the bankrupt, as
trustee for the assignee of the goods, while the right of action
for the return of premiums in which the bankrupt was bene-
ficially interested passed to his assignees (9).

By the Bankrupt Law Consolidation Act, 1849, s. 125
(following previous enactments) it is enacted “that if any
bankrupt, at the time he becomes bankrupt, shall, by the
consent and permission of the true owner thereof, have in
his possession, order, or disposition, any goods or chattels
whereof he was reputed owner, the Court shall have power
to order the same to be sold and disposed of for the benefit
of the creditors under the bankruptcy.” Rights arising out
of contracts, as debts, bonds, and policies of imsurance are
within this section; therefore, where the bankrupt has as-
signed them before bankruptcy, it is necessary, in order to
complete the title of the assignee as against the assignees in
bankruptcy, that notice of the assignment should be given to
the debtor before the bankruptcy, because, until such notice
is given, the debtor would be justified in paying to the bank-
rupt or to his order, and so the debt would remain in the
order and disposition of the bankrupt within the above en-
actment; after notice of the assignment to the debtor, the
debt is nolongerin the order and disposition of the assignor,
and his assignees in bankruptcy acquire no claim (¢).

Upon contracts made with the bankrupt after bankruptcy,

bankruptcy but before certificate or order of discharge, the assignees

(a) D’ Arnay v. Chesneau, 13M. &  B.66,879; 22 L. J.Q.B.5; 23 78.31.
W. 796, 809; and sce Parnham v. (c) See ante, p. 604; and see Ed-
Hurst, 8 M. & W. 743. wards vy. Scott, 1 M. & G. 962; Gib-

(b) Castelli v. Boddington, 1 E.& son vy. Overbury 7 M. & W. 555.
SECT. V. ASSIGNMENT BY BANKRUPTCY. 651

may, in general, interpose and claim the benefit; as, upon
& promissory note made in favour of an uncertificated
bankrupt (a). So, if an uncertificated bankrupt continues to
carry on his business for profit, the assignees are entitled to
claim the proceeds (b). Where an order for work was given
.to the bankrupt after an act of bankruptcy and was com-
pleted by him as agent for the assignees at their cost and
with their materials, it was held that the assignees were
entitled to sue, as assignees, for the price of the work and
materials (c).

But with regard to such contracts, as with regard to all
property acquired after bankruptcy and before discharge,
the bankrupt retains the right, unless the assignees interpose
to claim it; he may sue on such contracts in his own name,
and it is no defence to such action that the plaintiff is a
bankrupt, unless the assignees have interfered and required
the defendant to pay to them (d). So, in the case of a second
adjudication of bankruptcy against an uncertificated bank-
rupt, it was held that all the rights of the bankrupt acquired
since his first bankruptcy, which the assignees under that
bankruptcy had not interfered to claim, were transferred to
the assignees under the second bankruptcy (¢).

(a) Kitchen v. Bartsch, 7 East, 53 ; (d) Kitchen v. Bartsch, 7 East, 53 ;
see Drayton v. Dale, 2B. & C. 2938. Silk y. Osborn, 1 Esp. 140 ; Chippen-

(6) Crofton vy. Poole,1 B. & Ad. dale v. Tomlinson, 4 Doug. 318;
568 ; Elliot v. Clayton, 16Q.B.581; Cooke’s Bank. L. 4381; Herbert v.
see Williams v. Chambers, 10 Q. B. ‘Sayer, 5 Q. B. 965; and see Fysonv.
337. Chambers, 9 M. & W. 460.

(c) Whitmore v. Gilmour, 12 M.& (e) Morgan v. Knight, 15 C. B.
W. 808. WN. 8.669; 33 L. J. C. P. 168.
658

INDEX.

(See also the Table of Contents.)

ABATEMENT.
plea in, of non-joinder of joint debtor, 213.
when inadmissible, 214.
of non-joinder of joint creditor, 216.
of the coverture of the plaintiff, 234, 241, 631.
of the coverture of the defendant, 234, 631.
of non-joinder of executor as plaintiff or defendant, 636, 637.
that plaintiff is an enemy, 397. See Enemy. :
of action pending, 513. See Action Pending.
ACCEPTANCE.
of offer of contract, 12.
variance between offer and acceptance, 14.
by letter, when complete, 10.
of contract under seal, presumed, 80.
acceptance of goods under Statute of Frauds, 153. See Frauds, Statute of.
ACCIDENT.
does not excuse performance, 362. .
accidental fire does not excuse covenant to repair, 363.
alteration of instrument caused by, 430.
loss of instrument by, 433.
ACCOMMODATION BILL.
implied indemnity of maker, 26, 43.
ACCORD AND SATISFACTION.
promisee not bound to accept satisfaction for breach, 465.
acceptance of satisfaction discharges breach, 466.
accord and satisfaction of specialty debts, 466.
what may be given and accepted in satisfaction, 467.
payment in satisfaction, 467. See Payment.
new contract accepted in satisfaction, 467.
bill or note taken in satisfaction, 467, 477.
compositions with creditors, 468.
liability of, or to, third party accepted in satisfaction, 468.
adequacy of satisfaction immaterial, 468.
payment of smaller sum alone no satisfaction of larger debt, 468, 474.
accord without satisfaction inoperative, 468.
by and with whom accord und satisfaction may be made, 470, 486.
satisfaction made by a stranger, 470, 487.
Account STaTED. :
contract implied upon, 68.
must admit a certain debt, 68.
of debts payable in future, 69.
654 INDEX.

Account Srarrp—continued.
must be made between the parties to the debt or their agents, 69.
may be in any form, 70.
effect of I. O. U. as, 70.
effect of bill or note as, 69, 70.
of debt barred by Statute of Limitations must be in writing, 70, 72.
of debt under seal, 70.
what debt will support account stated, 71.
validity of debt may be disputed, 71.
balance of cross accounts, 72.
debt under contract within Statute of Frauds, 72, 167.
equitable debts, 73.
by trustee, 73.
by executor or administrator, 73.
ACKNOWLEDGMENT,
of contract made during infancy, 229. See Infant.
of debt barred by Statute of Limitation, 531, 542. See Limitatiun.
ACTION PENDING. .
plea in abatement of, 513.
actions must be for same cause, 513.
and between the same parties, 513.
action pending in inferior court, 513.
in superior court, 513.
ADEQUACY.
of consideration immaterial, 311, 332.
except when evidence of fraud, 311, 332. See Consideration.
of satisfaction immaterial, 468. See Accord and Satisfaction.
ADMINISTRATION Bonn.
assignable by order of court, 615.
ADMINISTRATOR. See Executor.
ADULTERY,
deprives wife of authority to bind husband for her maintenance, 245.
See Husband and Wife.
ADVERTISEMENT,
contract made by, offering reward, 13.
Agent. See Principal and Agent.
to sign contract under Statute of Frauds, 150. See Frauds, Statute of.
- contract induced by fraud of, 192. See Fraud.
right of, to commission upon revocation of agency, 34.
contracts of agency revoked by death, 288, 365, 643.
liability for acting without authority, 307.
damages caused by want of authority, 598.
AGREEMENT.
contracts arising from, 7.
evidence of, in law, 8.
as source of contract, 9.
in writing, 97. See Writing.
causes which vitiate, 168. See Mistake, Fraud, Dur.ss.
ALIMONY. '
rebuts wife’s authority to pledge husband’s credit, 241.
unless it is not paid, 237, 245,
ALTERATION,
of written contract by one of the parties, 1244.
by a stranger, 425,
material alterations, 425.
immaterial alterations, 427.
effect of, in avoiding the instrument, 428.
as to rights previously acquired, 429,
by accident or mistake, 430.
by consent of both parties, 430.
cr

INDEX. 65

ALTERATION—continved.
upon change of intention, 430.
to correct mistake, 430.
while instrument is incomplete, 432.
party producing instrument bound to explain, 433.
ALTERNATIVE PROMISES, 353.
right of election of alternative, 354.
election once made is irrevocabl>, 355.
notice of election a condition precedent, 356.
effect of impossibility of one alternative, 356.
AMBIGUITY.
latent and patent, 122, 179.
evidence admissible to explain latent, 122, 179.
not admissible to explain patent, 122, 179.
contract void for, 357.
APARTMENTS.
contract for, when within Statute of Frauds, 131.
APPRAISER.
unlicensed, cannot recover commission, 394.
APPRENTICE.
person enticing away, may be charged for services rendered by, 29.
what acts of master or apprentice are conditions precedent, 3477.
contract of apprenticeship discharged by death, 642.
APPROPRIATION OF PAYMENTS.
right of debtor to appropriate payment, 491.
presumptive appropriation by debtor, 492.
right of creditor to appropriate, 494.
to what debts, 494.
when it arises and may be exercised, 496.
appropriation by law, 496.
to earlier debt, 497.
to legal debt, 497, 406.
by creditor only, does not defeat Statute of Limitation, 540.
APPROVAL,
contracts conditional upon approval, 335, 336.
approved bill, meaning of, 112.
ARBITRATION AND AWARD.
discharge of cause of action by, 514.
when award is performed, 515.
when it is unperformed, 515.
award conclusive as to rights referred, 515.
modes of enforcing award, 516.
pendency of arbitration, before award made, 516.
agreement to refer, 517.
does not oust jurisdiction of Court, 517.
specific performance of, refused, 518.
staying proceedings after, 518.
stipulation for, as condition precedent to claim for debt or damage, 518.
ARREST. 4
illegal, constitutes duress, 206. See Duress.
discharge from, when a valid consideration, 329.
forbearing to arrest body of deceased debtor not a valid consideration, 329.
set-off of debt after, 550.
ASSETS.
priority of judgment in administration of, 95.
of specialty debts, 86.
equitable assets, 86.
real estate made assets in equity for payment of debts, 87, 638.
ASSIGNEES. See Assignment.
rights of assignees to contracts of bankrupt, 644. Sce Bankruptcy.
payment to one of assignees, 486.
656 INDEX.

ASSIGNMENT.
contracts not assignable at common law, 601.
assignment of contracts in equity, 602.
specific performance in favour of assignee, 602.
assignee may sue in his own name, 602.
consideration necessary, 603.
form of assignment, 603.
order upon debtor to pay to another, 603.
notice of assignment, 603.
when debt remains in the order and disposition of the assignor, 604.
assignee takes subject to equities, 604.
equitable assignment recognised in law, 605.
is a valid consideration for a promise, 605.
assignor suing as trustee for assignee, 605.
in case of bankruptcy of assignor, 605.
rights of assignee protected at law, 606.
may be asserted in pleading upon equitable ground, 606.
assignment of debt by agreement of all parties, 607.
right of assignee under the new agreement, 608.
conditional assignment, 608.
consideration of new agreement, 609.
assignment of debt for money received, 609.
order upon debtor to pay to another, 609.
promise to pay assignee not within Statute of Frauds, 128, 610.
assignment of liability for debt, 610.
new debtor accepted in place of original one, 611.
contracts assignable in law, 611.
bills of exchange, 611.
promissory notes, 612.
title of indorsee not affected by equities, 612.
bills of lading, 612.
property assignable by, 613.
-statute rendering contract assignable, 613.
title of indorsee, 614.
bail bonds assignable by statute, 614,
replevin bonds, 614.
administration bonds, 615. .
assignment of contracts by marriage, 630. See Marriage.
assignment of contracts by death, 636. See Death.
assignment of contracts by bankruptcy, 644. See Bankruptcy.
ASSUMPSIT.
action of, for breach of simple contract, 39.
formerly could not be joined with debt, 39.
is action upon the case within the Statute of Limitation, 521.
ATTESTATION,
of written instrument, 107.
proof of attested instrument, 107.
ATTORNEY. See Power of Attorney.
appointment of, by corporation, 255.
cannot bind partner by bill or note, 280.
when personally liable on undertakings for client, 292,
contract by, to share subject of suit, 386.
contracts restraining from practising, 390, 392.
unqualified, cannot recover for services, 395.
authority of, to receive payment, 489.
of agent of attorney, 489.
AUCTION.
bidding and acceptance at, 12. -
revocation of bidding, 20.
statement of auctioneer varying conditions, 102, 104.
sale by, of land or goods, is within Statute of Frauds, 132, 139.
INDEX. 657

AvcTION—continued.
what a suflicient note within the Statute of Frauds of sale by, 143, 148.
auctioneer as agent to bind parties by signing contract, 151, 152, 153.
auctioneer’s clerk as agent, 151, 152, 153.
mistakes in sales by auction, 169, 170, 171.
when principal or agent is liable on bidding, 296.
when auctioneer may sue or be sued, 296.
authority of auctioneer to receive payment, 490.
AUCTIONEER. See Auction.
AutHority. See Principal and Agent.
AwarD. See Arbitration and Award.

Bait.
whether indemnity given to, is within Statute of Frauds, 129.
bail bond assignable by statute, 614.
debt paid by, proveable in bankruptcy, 559,
BalILMent.
contracts of, impliedly conditional upon continued existence of the thing
bailed, 365.
Bank or Encuanp.
privilege of, as to issuing bills and notes, 253.
power of attorney requiring notice to, of death of principal, 288.
tender may be made in notes of, 457.
Banker.
liable at law to depositor as for money lent, 530.
trustee in equity for depositor, 487, 530,
limitation of action for deposit, 530.
trust for depositor not affected by Statute of Limitation, 530.
liability for not paying customer's check, 568.
payment by notes of, 479.
where bank stops payment, 479.
tender by notes of, 457.
payment by placing to creditor’s account at banker’s, 482.
Banxine Company.
public officer of, entitled to sue on covenant made with company, 225.
Banxkrurrey. Sce Assignees.
discharge by, of debts proveable, 555.
plea of order of discharge, 556.
adjudication and proof alone no discharge, 556.
what claims proveable, 556.
debts contracted after act of bankruptcy, 557.
debts not payable until after act of bankruptcy, 557.
debts payable by instalments, 558.
annuities, 558.
policies of insurance, 559.
debts paid by surety or bail, 559.
debts payable upon contingency, 560.
liability to pay money on contingency, 560.
premiums on policy of insurance, 561.
unliquidated damages, 562.
right to prove debts not affected by Statutes of Limitation, 530.
‘assignment of contracts by, 644.
assignees entitled to rights of contract of bankrupt, 644,
to rights of action, 645.
except those for personal damage, 646.
executory contracts of bankrupt, 647.
assignees may complete and recover upon, 647.
or may refuse such contracts, 647.
contracts involying personal skill or qualities of bankrupt, 649.
contracts of bankrupt as trustee, 649.
2u
658 INDEX,

Banenuproy—continued. :
debts assigned by him before bankruptcy, 649.
debts in the order and disposition of the bankrupt, 650.
contracts made after bankruptcy, 650.
right of uncertificated bankrupt upon, 651.
choses in action of bankrupt’s wife, 635.
assignees must join wife in suing, 635.
wife’s right by survivorship, 635.
bankruptcy of husband discharges debts of wife, 635.
Barrister.
claim for services of, will not support account stated, 71.
Bertine. See Wagering Contract.
Bryonp Seas. ,
debtor not bound to seek creditor beyond seas, 448, 450.
except under foreign contract, 450.
definition of term, within Statutes of Limitation, 524.
exemption of plaintiff, from Statutes of Limitation taken away, 524,
exemption of defendant, 525.
debtor may plead the statute, although co-debtor beyond seas, 526.
debtor beyond seas not discharged by judgment against co-debtor, 526.
Birts or ExcuangEe anp Promissory Norss.
parties necessary in, 210.
making of, by agent, 293.
when agent personally liable, 298, 294.
signing ‘ per proc.’ 294, 298.
when principal liable, 294, 298.
consideration of, need not be expressed, 311.
need not be alleged or proved, 311.
onus probandi lies on party denying, 311.
admission of evidence to vary the contracts arising upon, 105.
agreements in writing qualifying, 105.
evidence of consideration, 106.
of want of consideration, 106.
of failure of consideration, 106.
effect of, as account stated, 69, 70.
assignment of, 611.
bills payable to order, 611.
bills payable to bearer, 611.
promissory notes, 611.
title of assignee, when affected by equities, 612.
assignment withoutindorsement of instrument payable to order,605,612
notice of indorsement not necessary, 340,
notice of dishonour, when necessary, 340.
may be drawn payable upon condition of a certain event, 334.
not of an uncertain event, 334.
conditional acceptance, 334.
conditional indorsement, 334.
time of payment, by acceptor, 440, 441.
by drawer or indorser, 441.
where no time expressed, 443.
usances as to days of grace, 116, 441.
place of payment of, 450.
tender of payment of, 454.
payment made in purchase of, 488.
discharge of, by parol waiver, 418, 499.
loss of bill or note, 434,
loser may recover, on giving indemnity, 434.
alteration in bill or note, 426.
when Statute of Limitation runs agninst, 527.
interest recoverable on, 585.
when drawn payable with interest, 585.
INDEX. 659

BILts oF Excwange and Promissory Noris—con/inued.
when payable ou demand, 585.
bill or note taken on account of debt, 476.
in satisfaction of debt, 477.
where debtor primarily liable on the instrument, 478.
where debtor secondarily liable, 478.
where debtor not a party to the instrument, 480.
loss of bill or note taken for debt, 480.
bill or note taken for specialty debt, 481.
tender of payment in bills or notes, 457.
authority of partner to bind partners by, 280.
exercised in fraud of the partnership, 282.
when company authorized to make, 252.
under the Companies Act, 1862, 253.
railway company not authorized, 259.
bills given for money won by wagering, 378.
tor money won by gaming, 378.
bills tainted with fraud or illegality in their inception, 282, 378.
require proof of consideration by holder, 311.
Brit oF Lapina, 612.
transfers property in the goods, 613.
statute rendering the contract assignable, 613.
title of indorsee, 614.
contract implied from accepting goods under, 613.
Boarp anp Lopeine.
agreement for, not within Statute of Frauds, 132.
Bown.
single bond, 82.
bond with condition, 82.
common money bond, 82.
bond with special condition, 82.
relief against penalty in money bonds, 82, 575.
plea of payment post diem, 83, 575.
payment into Court of sum due, 83,575.
tender post diem may be refused, 454.
relief on bonds with special conditions, 83, 575.
breaches must be assigned or suggested, 576.
damages for breaches proved only recoverable, 576.
judgment as security for further breach, 576.
damages not recoverable beyond the penalty, 577.
interest on, when recoverable, 586.
Boveut anp Sorp Nores. See Broker.
BREACH oF Contract, 460.
acts equivalent to breach, 460. .
promiser disabling himself from performance, 460.
promiser refusing to perform, 462.
refusal not accepted as a breach, 463.
may be retracted before acceptance, 464,
waives conditions precedent, 464.
right of action for breach, how discharged, 465.
BROKER.
authority of, 275.
how differs from factor, 275.
duty of, to enter contract in book, 275.
bought and sold notes of, 275.
when evidence of contract, 275, 276.
effect of variance between, 15, 276.
as note of sale within Statute of Frauds, 146, 276.
authority of broker to sign within the statute, 151, 276.
when personally liable or entitled on contract, 292, 295. See Principal and
agent. 2 t 2
660 INDEX,

Broxer—continued,
authority of, to receive payment, 488.
unlicensed, cannot recover commission, 394.
right of, to recover money paid in course of employment, 41.
authority of, on Stock Exchange, 272.
Buitpine Conrract.
conditional upon certificate of architect, 336.
refusal of certificate, 336.
with penalty for delay, 573, 581.
death of contractor, 643.
completion by executor, 643.
bankruptcy of contractor, 649.
completion by assignees, 649.

CaLLs.
debt for, under Companies Clauses Act, 96, 522.
under Companies Act, 1862, 96, 522.
constitute specialty debt, 96, 522.
limitation of action for, 522.
liability of infant shareholder for, 227.
Capacity.
of persons to contract, 226.
infants, 226. See Infant.
married women, 234. See Husband and Wife.
insane persons, 247. See Insanity.
corporations, 250. See Corporation.
Carrier.
whether consignor or consignee the proper party to sue the carrier, 163, 296.
not agent of buyer to accept goods within Statute of Frauds, 155.
insures the goods carried, 358.
exceptions to insurance, 358, 366.
bound to carry and deliver within reasonable time, 443.
damages recoverable for not delivering goods, 571.
for not carrying passenger, 571.
excessive charges by, recoverable as debt, 53, 56.
interest may be claimed upon, 588.
Caveat Emptor.
application of maxim, 198.
CHAMPERTY, 385. See Maintenance.
CHARTERPARTY.
time of sailing in, when a condition precedent, 342.
representations in, as to quality and position of ship, when conditions pre-
cedent, 342.
exceptive clauses in, 366, 368.
CHECK.
payment by, 476, 478, 482.
tender by, 457.
presentment of, 479.
liability of banker for refusing, 568.
Cnosr In ACTION.
division of personal property into choses in possession and choses in action, 6.
not assignable at law, GOL.
assignment of, in equity, 601. See Assignment.
assignment of, is valid consideration for promise, 326, 605.
forbearance by assignee of, is valid consideration, 326, 605.
effect of marriage upon chose in action of wife, 630.
reduction into possession by husband, 638. See Marriage.
Cognovir.
authority in, to sign judgment, 90.
may be subject to conditions, 90.
INDEX. 661

Coanovit — continued.
statutory regulations as to making and effect of. 90.
execution under, restricted to amount due, 580.
ConaBitarTion,
authority of wife presumed from, 243.
authority presumed from, without marriage, 243.
contracts for illicit, 399.
Coin.
what legal tender, 456.
CoMMENDATION,
of matter of contract, how far binding, 9, 183.
Company.
contracts of, 251. See Corporation.
power of, to make bills or notes, 252.
contracts of trading companies, 253, 259.
contracts of railway company, 258, 259. See Railway.
powers of directors of, 260.
forms of contracts by, 261.
articles of association, how far directory only, 263.
ratification of unauthorized and informal contracts, 263.
contracts with promoters of, 264.
set-off of debts in action by or against, 552.
prospectus of, when fraudulent, 183, 192.
COMPOSITION.
between debtor and creditors, 403.
agreements with one of creditors for preference, 403.
bill or note given to creditor for balance of his debt, 403.
security of third party given for balance, 403.
stipulation for further security for the composition, 404.
creditor stipulating for preference cannot recover composition, 40-4.
creditor reserving debts cannot recover, 404.
debtor giving preference cannot support the composition, 404, 409.
money paid to induce creditor to sign, 404, 408.
in discharge of bills given for that purpose, 404, 408.
payment of composition discharges debt, 474.
agreement for composition accepted in satisfaction, 468.
CoMPOUNDING OFFENCES.
contracts for, illegal, 383.
compounding misdemeanour, 383.
petition for bribery, 384.
indictment for nuisance, 384:
money paid to compound gui tam action recoverable, 67, 408.
CoNCEALMENT.
as ground of fraud, 183.
selling chattel with latent defect, 185.
duty of purchaser to inform vendor, 186.
in contracts of insurance, 199.
in contracts of guarantee, 202.
ConpirTIon.
conditional promise, 333. See Promise.
condition precedent, 333.
condition subsequent, 333.
construction of contracts as to conditions precedent, 341.
performance of conditions precedent, 350.
partial performance of, 350.
excuses of performance of, 351.
in contract under seal, cannot be discharged by parol, 419.
condition of bond, 82.
bills of exchange drawn or accepted upon, 334.
conditional tender, 458.
662 INDEX.

CoyrpDitTion—continued,
conditional payment, 476.
conditional release, 499.
contracts stipulating for arbitration as condition of claim to debt or da-
mages, 518,
CONSIDERATION.
executed and executory, 10, 313.
contracts arising upon executed considerations, 23.
upon consideration executed upon request, 24,
implied request, 23, 26.
upon acceptance of executed consideration, 26.
from assent to performance of consideration, 27.
when executed consideration will not create contract, 28.
consideration executed without consent of party charged, 28.
consideration obtained by wrong or fraud, 29.
by fraudulent contract, 30.
upon part performance of executory consideration, 31.
where default in completion caused by promiser, 31.
where default in completion caused by promisee, 33.
where part performance provided against in contract, 34.
where contract rescinded by agreement, 36.
upon complete performance of executory consideration, 36.
promise implied in contracts upon executed considerations, 37.
quantum meruit, 38.
quantum valebat, 38.
necessary in simple contracts, 310.
in bills and notes, need not be expressed, 311.
need not be alleged or proved, 311.
onus probandi lies on party denying, 311.
evidence admissible as to, 106.
need not appear in written guarantee within Statute of Frauds,
121, 130, 145.
not necessary in contracts under seal, 84, 121, 130, 145.
gratuitous promises, when binding, 10, 84, 310.
adequacy of, immaterial, 311.
good and valuable, 312.
consideration must move from the plaintiff, 313.
past matter insufficient, 314. :
previous moral obligation insufficient, 315.
previous legal obligation insufficient, 318.
impossible, 321, 375. See Impossible Contracts.
impossible at time of contracting, 359, 375.
becoming subsequently impossible, 375.
legally impossible, 359.
illegal, 822, 405. See Illegal Contracts.
consideration partly void or illegal, 322, 409.
failure of consideration, 323.
where performance of consideration a condition precedent, 323.
money paid for consideration which fails, 60, 323.
partial failure, 62.
matter of, 323.
forbearance of rights or claims, 324.
equitable rights, 326.
assignment of chose in action, 326, 605.
forbearance by assignee of, 326, 605.
pretended and supposed rights, 326.
disputed and doubtful rights, 329.
doctrines of equity respecting, 330.
voluntary contracts not enforced in equity, 330.
imperfect gifts, 331.
INDEX. 663

CoNSIDERATION—continued.
imferfect voluntary appointments and declarations of trust, 331.
adequacy immaterial except as evidence of fraud, 332.
consideration of promise immaterial in assessing damages for breach,
566.
ConsTRUCTION.
of written contract belongs to the Court, 123.
of words and phrases used in contracts. See Words,
of obvious mistake in contract, 173.
as to admissibility of usage to explain contract, 111,116, 123.
of conditions precedent, 341.
of dependent and independent promises, 344.
of stipulations for liquidated damages and penalties, 578.
of release, 500.
restriction of general release by recital, 500.
as to joint and several parties, 217.
of powers of attorney and written authorities, 270.
general authority restricted to particular purpose, 270.
authority includes all medium powers, 271.
as to whether principal or agent is the contracting party, 289.
where contract under seal, 290.
simple contract in writing, 290.
contracts with brokers, 292.
with members of partnership, 292.
with solicitors acting for client, 292.
bills and notes made by agents, 293.
signed per proc., 294.
ConTINGENCY.
promises conditional upon, 334.
debts payable upon, proveable in bankruptcy, 560.
liability to pay money upon, proveable, 560.
Contract.
meanings of the term, 5.
different kinds of, 7.
simple contracts arising from agreement, 7.
implied in law, 38.
contracts under seal, 76.
contracts of record, 88.
contracts in writing, 97. See Writing.
contracts within the Statute of Frauds, 124, See Frauds, Statute of.
CoNTRIBUTION.
right to, between co-debtors, 43.
between co-sureties, 43.
against representative of deceased co-debtor, 44.
between joint wrongdoers, 44.
CoNVEYANCER.
unqualified, cannot recover for work, 395.
CoRPORATION.
can contract only by common seal, 250.
in corporate name, 251.
statutory forms of contract by, 251.
exceptions to rule requiring common seal, 251.
bills of exchange and promissory notes, 252.
_ _ power of making, 252.
ordinary trading contracts, 253.
contracts of ordinary necessity, 254.
contracts for ordinary services, 255,
appointment of attorney, 255.
use and occupation of land, 256.
contracts implied in law, 256.
664 INDEX,

CorPoraTIoN—continued.
contracts arising upon executed considerations, 256.
effect of corporation suing upon contract with executory considera-
tion, 257.
contracts of corporations in equity, 257.
part performance of contract not under common seal, 257.
powers of corporations to contract, 257.
contracts wlira vires, 258.
agents appointed to act for corporation, 260.
powers of directors, 260.
form of contracts by directors, 261.
how far persons dealing with directors are affected by notice of
powers, 261.
ratification of unauthorized or informal contracts, 263.
contracts with promoters of company, 264.
Costs.
when recoverable as damages, 597.
decision of Court final as to, 597.
CovENANT NOT TO SUE.
when equivalent to release, 504.
covenant not to sue one of co-debtors, 504.
by one of co-creditors, 504.
covenant not to sue for a limited time, 505.
CovENANTS RUNNING WITH Lanp.
benefit of, 615.
burden of, 615.
assignee of land with notice of covenant, 616.
covenants between lessor and lessee, 617.
run with term at common law, 617.
annexed to reversion by statute, 617.
distinction between privity of estate and privity of contract, 618.
what covenants may be annexed to land, 618.
covenants collateral to the land, 619.
covenants for title, 619.
covenants in leases, 620.
to what estates covenants may be annexed, 622.
incorporeal hereditaments, 623.
equitable estates, 623.
reversion by estoppel, 623.
covenant cannot be annexed to goods, 624.
who may be entitled or liable as assignees, 625.
grantee, devisee, heir, or executor, 625.
assignee must take same estate, 625.
underlessee, 625.
remainderman on lease under power, 626.
mortgagee, 627.
assignee of part of reversion, 627.
assignee of part of term, 628. .
assignee not liable after assignment by him, 629.
liability of lessee after assignment, 629.
right of lessor after assignment, 629.
assignment of, upon death. See Death.
Coverture. See Husband and Wife ; Marriage.
plea of, by married woman, 234, 631.
to action by married woman, 241, 631.
CREDIT.
usage of trade as to, when admissible, 113.
sale of goods upon, 333.
Crops.
when an interest in land or goods within Statute of Frauds, 133.
custom of country as to allowing oulgoing tenant for, 115,
INDEX. 665

Custom. Sec Usage.
lease subject to custom of the country, 115.
as to away-going crops and allowances to outgoing tenant, 115.

Damages.
damages for breach of contract, 56 t.
general, 565.
nominal, 567.
special, 569.
must be charged with particularity, 565.
rule in Hadley v. Baxendale, 569.
damages for disappointment and injury to feelings, 566.
damages for prospective loss, 567.
consideration of promise immaterial in assessing damages for breach,
566. ;
liquidated damages and penalties, 573.
relief against penalty, 575.
in money bonds, 575.
in aa with special conditions, and contracts with penalty,
575.
specific performance of contract with penalty, 577.
construction of contracts as to liquidated damages and penalty, 578.
contracts for matter of certain value, 580.
contract for matter of uncertain value, 581.
contract for several matters, 582.
interest at common law, 584.
under the statute, 587. See Interest.
on contracts for sale of goods, 589.
for not paying price, 589.
for not accepting the goods, 589.
for not delivering the goods, 590.
for non-delivery of specific chattel, 592.
execution for specific delivery, 592.
for breach of warranty of specific goods, 593.
of description of goods, 594.
on contracts for sale of land, 595.
on covenants for title, 596.
costs of action when recoverable as damages, 597.
when not recoverable as damages, 599.
claim for unliquidated damages on contract, proveable in bankruptey, 562.
cannot be set-off, 548.
waiving claim for damages, and claiming on implied contract, 29, 48,
549, 563.
Days oF GRACE.
on bills of exchange, 116.
foreign usances as to, 116.
Draru.
assignment of contracts upon, 686.
right of executor on contracts of deceased, 636.
executors jointly entitled, 636.
non-joinder of, may be pleaded in abatement, 639.
liability of executor on contracts of deceased, 637.
non-joinder of executor who has proved aay be pleaded in abate-
ment, 637.
liability of heir and devisee on contracts binding the heir, 637.
statute giving action against heir and devisee, 637.
plea of riens per descent and issue thereon, 638.
real estate of deceased made assets for payment of debts, 87, 638.
covenants running with land, 6389.
pass with the land to heir or devisee of deceased, 639.
666 INDEX,

Deatu—continued.
or to executor, if estate is a chattel interest, 639.
rights of action on such covenants also run with the land, 639.
except in respect of damage to the personal estate, for which exc-
cutor may sue, 639.
covenants in leases running with land, 640.
contracts concerning the realty, not running with the land, pass to
executor, 640.
contracts for sale of land, pass to executor in law, 640.
effect of, in equity, 641.
bills of exchange and promissory notes, 641.
pass to executor, 641.
executor entitled to indorse, 641.
joint contracts, 642.
right and liability pass to survivors, 215, 216, 642.
contracts discharged by death of party, 642.
contract of marriage, 642.
for personal services and skill, 642.
of agency, 288, 613.
completion of contract by executor, 643.
right of action for breach of contract in respect of personal damage,
644.
DeExD.
requisites of, 76.
execution of, 76.
signing, 76.
sealing, 77.
delivery, 77.
escrow, 78.
time of taking effect, 78.
date of, 445. : one
meaning of terms “ from the date,” “from the making of,” 445.
execution of, in blank, 79.
deed poll, 81.
indenture, 81. See Indenture.
bond, 82. See Bond.
effect of deed in estoppel, 88.
contracts by, not within Statute of Frauds, 149.
parties to, 223, 224.
Det CREDERE AGENT.
guarantee of, 276. : B
not within the Statute of Frauds, 127, 277.
DELEGATION.
of authority, 285. See Principal and Agent.
DELIVERY.
of deed, 77.
of escrow, 78.
of goods under contract of sale, 156, 437.
and receipt of goods within Statute of Frauds, 156. See Frauds, Statute of.
constructive delivery, 156.
effect of delivery order, 159.
DEMAND.
promise conditional upon demand, 337.
when demand necessary, 337.
promissory note payable on demand, 337, 454.
bond conditioned for payment on demand, 338.
surety not entitled to demand, 338.
when necessary to determine credit, 454,
demand of debt after tender, 152,
Demisx. See Lease.
INDEX, 667

DEMURRAGE.
sum agreed for, recoverable in full, 573.
Derprnpent Promisms. See Promise.
when performance a condition precedent, 85, 344.
DETENTION.
of debt, damages for, 567.
of goods, damages for, 569.
DEVISEE.
liability of, for debts of testator, 86,637. Scc Heir.
Drrecrors.
powers of, 260.
contracts by, 261.
how far parties dealing with, are affected with notice of powers, 261.
DISCHARGE.
of contracts, 413
Disclamer.
of benefit of contract under seal, 81.
DisTREss.
money paid to redeem goods distrained for another’s rent, 44.
money obtained by wrongful distress, 56.
promise in consideration of withdrawal of, 330.
promise to pay rent of another upon withdrawal of, not within Statute of
Frauds, 128.
Divorce.
effect of, upon contracts and capacity of wife, 237, 635.
contracts relating to proceedings in Divorce Court, 399.
compromise of suit for, 399.
Dovsttunt Ri@uts.
as matter for the consideration of a promise, 329.
forbearance and release of, when a sufficient consideration, 330.
DvREss.
as ground for avoiding agreement, 205.
duress to the person, 206.
by violence, 206.
by imprisonment, 206.
by threats, 206.
duress of goods, 206.
not ground for avoiding agreement, 207.
money obtained by, may be recovered, 52, 207.
contract made to relieve third party from duress, 208.
contract made by agent to remove duress from principal, 208.
avoidance of agreement induced by duress, 209.
must be specially pleaded, 209.
relief in equity against duress and oppression, 209.

Earnest.
given to bind bargain, 161.
ELECTION.
right of, in alternative promises, 35-4,
once made, irrevocable, 355.
notice of, a condition precedent, 356.
EMBaRra@o.
effect of, upon charterparty, 398.
EMBLEMENTS.
contract concerning, when within Statute of Frauds, 133, 138.
Evemy.
trading with, illegal, 395.
insurance on ships or goods of, 395.
contract by agent on behalf of, 396.
contract with British subject residing in enemy’s country, 396.
668 INDEX.

Exrmy—continued.
contract with prisoner of war, 396.
ransom bill illegal, 396.
enemy cannot sue during war, 397.
plea that plaintiff an enemy, 297.
when in bar and when in abatement, 397.
effect. of declaration of war on contract, 397, 412.
EquirasLe Rieuts.
as matter for the consideration of a contract, 326.
equity of redemption an interest in land within Statute of Frauds, 132.
equitable mortgage not within the Statute of Frauds, 182.
Escrow. ‘
delivery of deed as, 78.
time of taking effect, 79.
EstToppet.
by deed, 88.
by release under seal, 4.98.
by judgment against plaintiff, 93, 510.
by issues decided in action, 511.
reversion by, 623. —
covenants annexed to reversion by, 623.
EVIDENCE.
contract in writing cannot be varied by extrinsic evidence, 103.
for what purposes extrinsic evidence admissible, 106. See Writing.
secondary evidence of lost instrument, when admissible, 433.
party producing instrument bound to explain an alteration, 433.
evidence of agency of party to contract when admissible, 297, 302.
not admissible to discharge party, 294.
admissible to charge unnamed principal, 297.
except upon bills and notes, 298.
and contracts under seal, 298.
admissible to entitleunnamed principal, 302.
except as above, 302.
EXEcuTED CONSIDERATION.
contracts arising upon, 23. See Consideration.
EXgcvTion.
of deed, 76.
in blank, 79. See Deed.
discharge from, when a valid consideration, 206, 326, 329.
set-off of debt after, 550.
on bond, for damages assessed on breaches, 576.
tor specific delivery of goods, 592.
against married woman, 631.
Exrcutor. See Death.
right of, on contracts of deceased, 636.
liability of, 637.
all must join in suing, and be sued jointly, subject to plea in abatement,
636, 637.
when entitled to sue on covenants running with land, 639.
entitled to sue upon bills and notes of which deceased was holder, 641.
to indorse bills and notes, 641.
not entitled or liable on contracts of deceased jointly with others, 642.
contracts of deceased completed by, 643.
contract that executor shall pay after death, 644.
payment to one of several, 486.
set-off of debts in actions by or against, 551.
promise to pay out of his own estate, is within Statute of Frauds, 125.
requires a valid consideration, 125.
promissory note by, 126.
liability for legacy, 73, 126.

?
INDEX. 669

Exrcuror— continued.

account stated by, respecting legacy or distributive share, 73, 126.
Exrcurory ConsIPErArion, 10,313. See Consideration.

when performance of, is a condition precedent, 85, 344,

Factor.
authority of, to sell goods, 274,
to receive payment, 274, 488.
lien of, for balance of account, 274.
pledges by, under factor’s acts, 275.
Farsr PRETENCcEs.
debt for money obtained by, 49.
Fear.
contract induced by threats, 206. See Duress.
what degree of, sufficient to avoid contract, 206.
money obtained by threats, 52.
FEEs.
obtained by usurpation of office, how recoverable, 50.
gratuities so obtained, not recoverable, 50.
debt for illegal and excessive fees, 57.
FELonyY.
debt for money feloniously stolen, 49.
telony must be prosecuted, before suing for, 49.
Ferme Covert. See Husband and Wife ; Marriage.
Fr. Fa.
money obtained by wrongful seizure under, 51, 56.
Fire.
insurance against, 202. See Insurance.
is conditional upon true description of the property, 202.
conditions as to alterations, 202.
insured bound to disclose material facts, 202.
does not excuse covenant to repair, 363.
Frrm. See Partners.
FIXTURES,
nature of, before and after severance, 138.
right of removal of, 133.
contracts concerning, when within Statute of Frauds, 133, 138.
FORBEARANCE.
contract created by forbearance upon request, 25.
of right, when a valid consideration, 324.
of equitable rights, 326.
by assignee of debt, 326, 605.
of pretended and supposed rights, not a valid consideration, 327.
forbearing to sue, where no cause of action, 327.
of disputed and doubtful rights, 329.
Forrian ConrTRACcT.
Statute of Frauds applies to, 162.
Forrian JUDGMENT.
debt created by, 73.
Trish, Scotch, and colonial judgments, 74.
grounds on which it may be questioned, 74.
when interest recoverable upon, 584.
against defendant, does not merge cause of action, 514.
against plaintiff, how far an estoppel, 514.
Forrien Law.
impossibility caused by, does not excuse performance, 367, 412.
Forrien PRINCIPAL. a7
credit presumed to be given to British agent, 295.
Forrien Statutes. :
debts created by, 75.
670 INDEX.

Forerp Instrument.
money paid as price of, 60.
in discharge of, 60.
Fravp.
as ground for avoiding agreement, 181.
what constitutes fraud, 181.
misrepresentation of fact, 181.
of law, 181.
of intention, 181.
exaggerated commendations, 183.
concealment of fact, 183.
active, 183.
passive, 183.
fraudulent intention, 187.
legal and moral fraud, 187.
belief as to the truth of matter represented, 187.
fraud inducing the contract, 189.
party relying on his own knowledge, 190.
fraud by a stranger to the contract, 191.
-fraud by agent of one of the parties, 192.
avoidance of contract induced by fraud, 193.
parties remitted to original rights, 195.
rights acquired by third parties not affected by subsequent avoid-
ance, 196.
coutracts with warranty of representations, 198.
contracts conditional upon truth of representations, 198.
contracts of insurance when vitiated by misrepresentations, 199.
of guarantee, 202.
relief in equity against fraud and imposition, 182, 204.
fraud as ground for pleading at law on equitable grounds, 205.
contract in fraud of third person, 402. See Ll/egal Contracts.
agreements in fraud of composition with creditors, 403. See Com-
position,
release in fraud of third person, 502. See Release.
release obtained by fraud, 503.
goods or work obtained by fraud, 29.
by fraudulent contract, 30.
money obtained by fraud, 48.
Fravups, Stature oF.
contracts within the statute, 124.
promise by executor to answer damage out of his own estate, 125.
See Executor.
promise to answer for debt or default of another, 126. See Guarantee.
agreement upon consideration of marriage, 180. See Marriage.
contract or sale of any interest in land, 131. See Land.
agreement not to be performed within a year, 135.
sale of goods of value of £10, 137.
forms and conditions required by the statute, 140.
memorandum or note of contract in writing, 141,
what kind of writing suflicient, 141.
several writings connected together, 142.
time of making, 143.
contents of memorandum, 143.
must contain a complete contract, 143.
the names of the parties, 144.
the consideration and the promise, 144.
consideration of guarantee need not appear, 15,
agreement of both parties {o same terms, 145,
memorandum denying lability, 146.
memorandum must agree with the contract made, 147.
INDEX. 671

Fravps, Stature or—continued.
memorandum must be signed by the party charged, 148.
what signature sufficient, 148.
need not be signed by the other party, 150.
may be signed by agent of party, 150, 266.
who authorized to sign, broker, auctioneer, solicitor, 151.
one party cannot sign as agent for the other, 152.
subsequent ratification of signature, 152.
countermanding authority to sign, 152.
acceptance and receipt of goods under 17th s., 153.
imports delivery of possession, 153.
what constitutes acceptance, 154.
delivery and receipt of the goods, 156.
constructive delivery, 156.
where goods are in possession of buyer, 156.
where goods remain in possession of seller, 157.
where goods remain in possession of agent, 159.
of part of the goods, 159.
sales including several articles, 160.
giving something in earnest or part payment, 161.
effect of the statute :—
upon contracts within its operation, 161.
defence of statute available under general issue, 161.
as to the property in goods sold, 162.
upon contracts partly within the statute, 164.
after part or complete execution of the contract, 165.
part performance in equity, 167.
account stated of debt under contract within the statute, 72,167. See
Account stated.
contract within the statute cannot be varied or waived in part by parol, 415.
whether it can be wholly waived by parol, 416.
Freieut.
proratd itineris, 35.
where ship wrecked on the voyage, 35.
where goods accepted at intermediate port, 35.
no freight where shipowner carries his own goods, 211.

Gamine. See Wagering Contracts.
contracts by way of, void, 377.
exception of prizes at lawful games, 378.
bills, notes, and securities for money won by, illegal, 378.
money lent for purpose of, 402.
money lent to pay losses at, 402.
GENERAL IssvE.
admits objection under Statute of Frauds, 161.
objection of non-joinder of joint debtor not admissible under, 213.
of non-joinder of joint creditor admissible, 215.
GIFT.
imperfect, not assisted in equity, 331.
gratuitous promise, not binding unless under seal, 10, 84, 310.
not enforced by specific performance, 330.
voluntary payment of money, not recoverable, 46, 56.
Goons. Sce Sale of Goods.
property in, under sale within Statute of Frauds, 163. ‘
distinction between contract for goods and.for work in making goods, 138,
duress of goods, 206. See Duress.
goods taken in payment, 482.
Goopwitt.
sale of goodwill of trade, 397.
stipulations not to carry on same trade, 387. See Restraint of Trade.
contracts for sale of, secured by penalty, 584.
672 INDEX.

Gratuitous Promisz. See Gift.
GUARANTEE.

acceptance of, by acting upon, 25,

promise to answer for debt of another, within the Statute of Frauds, 126.
there must be a separate liability of another, 126.
promise to give or procure guarantee, 127.
promise to pay debt in consideration of discharging the debtor, 128.
promise to pay debt, where promisee is not the creditor, 129.
indemnity to bail in‘civil or criminal proceedings, 129.
promise to answer for default or miscarriage within the statute, 129.

consideration of guarantee within the Statute of Frauds not required to be

in writing, 121, 130, 145.

joint guarantees, 217.
rights of parties inter se, 217, 220.
right of surety against principal debtor, 42, 217, 220.
right of contribution between co-sureties, 43, 217, 220.

surety discharged by creditor giving time to principal, 221.

duty of creditor as to disclosing facts to surety, 203.
concealment does not avoid guarantee, unless fraudulent, 203.
what concealment is fraudulent, 203.

surety not entitled to demand or notice of payment unless stipulated for,

338, 340.

Herr.
liability of heir on contracts of ancestor, 86, 637.
contracts under seal binding the heir, 86, 637.
statute giving action against heir and devisee, 86, 637.
plea of riens per descent and issue thereon, 638.
right and liability of, as assignee, on covenants annexed to reversion, 625,
639.
Hinine.
hirer of goods, not liable if they perish without his default, 365.
hiring of services. See Master and Servant.
Horss.
agent to sell, when authorized to warrant, 273.
damages for breach of warranty of, 593. See Warranty.
Iluspanp anp Wires. See Marriage.
wife incapable of binding herself by contract, 234.
cannot be sued alone or jointly with husband on contract made after
marriage, 234.
may be sued alone subject to plea in abatement on contract made
before marriage, 234.
not liable for contract induced by fraudulent representation that she
was unmarried, 235.
husband civilly dead, 236.
wife sole trader by custom of London, 236.
after divorce, 237.
judicial separation, 237.
order of protection of property, 237.
wife may charge by contracts her separate estate in equity, 238.
rights of wife upon contracts made with her, 239.
on contracts with husband and wife jointly, 240.
on contracts in which she is meritorious cause of action, 2-40,
when wife may be joined with husband in suin~, 240,
when wife may sue alone subject only to plea in abatement, 2 41.
when wife cannot sue, 241.
authority of wife to bind husband, 242.
authority presumed from cohabitation, 243.
exteut of, 243.
revocation of, 213.
INDEX. 673

Huspanp and WirE—continued.
authority in law to bind husband for necessary maintenance, 243.
when it arises, 244.
cannot be revoked, 244.
where wife supplied with funds, 244.
adultery of wife, 245.
no presumption in favour of, 245.
what are necessaries for wife, 246.
ratification by husband of contracts of wife, 246.
by sanctioning the use of things bought on his credit, 247.
conditional ratification, 247.
wife not agent of husband to receive payment of debt, 488.
Statutes of Limitation do not run against action accruing to married
woman, 524.
assignment of contracts by marriage, 630. See Marriage.
bankruptcy of husband, 635. See Bankruptcy.

ILLEGAL Conrract.
illegality in matter or purpose of contract, 376.
by the common law, 376.
by statute, 376.
statutes imposing penalties, 376.
wagering contracts, 377.
sale of public offices, 381.
compounding offences, 383.
maintenance and champerty, 385.
contracts in restraint of trade, 387.
contracts infringing laws of trade, 392.
trading with enemy, 395.
contracts in restraint of marriage, 398.
immoral contracts, 399.
contracts made for illegal purpose, 400.
participation in the illegal purpose, 400.
contracts in fraud of third party, 402.
effect of illegality in avoiding contract, 405.
evidence admissible to show illegality, 123, 405.
effect of illegality after execution of the contract, 405.
money paid as consideration of illegal contract, when recoverable, 64, 407.
not after execution of the contract, 407.
except by party not in pari delicto, 407.
effect of illegality in part of consideration, 409.
in part of promise, 410.
effect of illegality arising subsequently to the contract, 411.
Inmtornat Contract, 399, 401. See Illegal Contract.
contracts for illicit cohabitation, 399.
contracts in aid of immoral purposes, 401.
ImpriepD Contract, 11.
distinction between implication of law and of fact, 12.
contract implied from consideration executed upou request, 24:.
from acceptance of executed consideration, 26.
from part performed consideration, 31.
from complete performance, 36. :
when request to perform consideration implied in law, 23.
implied promise to pay value of executed consideration, 37.
contracts implied in law, 38.
implied promises, 39.
implied request to pay money, 41.
money paid, 40. See Money paid. _
money received, 47. See Money received.
account stated, 68. See Account stated.
674 INDEX.

Larposs1BLe ConTRActs.
impossibility of performing contract, 356.
physical impossibility, 357.
practical impossibility, 357.
impossibility by act of God, 358.
legal impossibility, 358.
impossibility at time of contracting, 358.
known to the parties, 359.
where matter legally impossible, 359.
unknown to the parties, 360.
contracts conditional upon supposed possibility, 360.
impossibility subsequent to contracting, 361.
contracts conditional upon continued possibility, 364.
subsequent impossibility caused by promisee, 366.
subsequent impossibility caused by law, 367.
impossibility relative to the promiser, 368.
undertaking for act of third party, 369.
impossibility of one of alternative promises, 371.
subsequent impossibility of alternative promise, 371.
impossibility of promise after election, 374. _
consideration of contract impossible of performance, 375.
IMPRISONMENT.
illegal, constitutes duress, 206. See Duress.
discharge from, when a valid consideration, 329.
InpEpitatus Count.
applicable to debt for executed consideration, 36, 37.
tender may be pleaded to, 455.
tender to part of claim in, 458.
plea of merger as to part of claim in, 455.
INDENTURE.
need not be indented, 81.
deed inter partes, 81.
impliedly excludes other parties, 223.
statute giving benefit of covenant to person not named as party, 225.
INDORSEMENT. :
of bill of exchange, 611. See Assignment, Bill of Exchange.
of bill of lading, 614. See Assignment.
notice of, to acceptor or maker of bill or note not necessary, 340.
indorser entitled to notice of dishonour, 340.
IvFant.
liability of, on contract, 226.
plea of infancy, 226.
for wrongs, 226.
for money received, 226.
on contract induced by fraudulent representation of full age, 227.
upon obligations incident to property, 227.
as holder of shares in company, 227.
money paid by infant under contract when recoverable, 228.
ratification of contract after full age, 229.
must be in writing, 229.
what sufficient, 230.
of liability incident to property, 230.
limited and conditional ratification, 231.
right of infant on contract, 231.
specific performance not granted to, 231.
contracts of, for necessaries, 232.
what are necessaries, 232.
necessaries for wife and family, 233.
securities given for necessaries, 234,
Statutes of Limitation do not run against action accruing to infant, 524.
INDEX. 675

Insaniry.
contracts with persons in state of, 247.
capacity of contracting presumed, 247.
contracts made with insane person, with notice of insanity, 247.
contracts for necessaries, 247.
when ground for avoiding contract, 248.
for refusing specific performance, 248.
incapacity caused by intoxication, 249.
Statutes of Limitation do not run against action accruing to insane
person, 524,
INSTALMENTS.
debt payable by, the whole to be recoverable on default, 527, 580.
equity will not relieve against default, 580.
Statute of Limitation begins to run from default, 527.
INSURANCE.
marine, is conditional upon truth of representations as to the risk, 199.
duty of insured to disclose all material facts, 199.
on life, not avoided by misrepresentation without fraud, 200.
implied condition that person is alive, 201, 361.
when expressly made upon basis of declaration, 201.
policies expressly made indisputable exeept for fraud, 201.
on life of another, how far affected by his statements, 202.
against fire is conditional upon the truth of the description of the pro-
perty, 202.
conditions as to alteration, 202.
duty of insured to disclose material facts, 202.
wagering policies, without interest, 379.
valued policies, 379, 582.
insurable interest in life, 380.
insuring ship or goods of enemy, illegal, 395.
amount recoverable under several insurances of same interest, 381.
interest recoverable under policy, 584.
effect of adjustment of loss, as admission, 548.
claim on policy proveable in bankruptcy, 559.
liability to pay premiums proveable, 561.
covenant to insure must be performed strictly, 435.
relief against forfeiture for breach of, 435.
when it runs with the land, 621.
INTENTION.
evidence of, 8.
unexpressed or not communicated, immaterial, 8.
promise not intended to be binding, 9.
consideration the test of binding intention, 10, 84, 310.
agreement with intention to reduce it into writing, 98.
signing writing without intention to contract, 107.
representation as to intention, not ground of fraud, 182.
when binding in equity, 131, 183.
fraudulent intention, 186. See Fraud.
giving notice of intention to break contract, 462. See Breach of Contract.
INTEREST.
When recoverable at common law, 584.
not recoverable unless intention appears, 584.
for money lent, 584.
for price of goods sold, 584.
on policy of insurance, 584.
on contracts implied in law, 584.
foreign judgment, 584.
on bills and notes, 585.
when drawn payable with interest, 585.
when payable on demand, 585.
2x2
676 INDEX,

InTEREstT—continued.
on contracts to give bills or notes, 585.
on guarantee of bill or note, 585.
on bonds, 586.
on mortgages, 586.
recoverable by usual course of dealing, 587.
where usual to charge compound interest, 587.
when in nature of debt or damages, 587.
interest under the statute, 587.
must be assessed as damages, 587.
jury may refuse, 588.
what cases within the statute, 588.
interest upon jndgment debts, 588.
interest proveable in bankruptcy, 588.
INTOXICATION.
incapacity caused by, 249.
when ground for avoiding contract, 249.
relief in equity against contracts made during, 249.
liability for necessaries supplied during, 249.
1.0. U.
effect of, as account stated, 70, 71.

JoInt Parties, 212. See Parties.
judgment against one of joint debtors bars action against the others, 509.
unless the others are beyond seas, 510, 526.
Statutes of Limitation runs in favour of joint debtor, although others
beyond seas, 510, 526.
renewal of debt by one of joint creditors, 543. See Limitation.
payment to one of joint creditors, 486.
by one of joint debtors, 487. See Payment.
set-off of joint and several debts, 550. See Set-off.
release of one of joint debtors, 500.
reserving remedy against others, 501.
release by one of joint creditors, 502.
in fraud of others, 502. See Release.
joint authority, how exercised, 284. See Principal and Agent.
JUDGMENT.
record of, 89.
debt created by, 89.
warrant of attorney to enter, 89.
cognovit actionem, 90.
execution on, 91.
action on, 91.
costs in action on, 92.
interest recoverable on, 588.
effect of, against defendant, in merger of cause of action, 92, 508.
against one of joint debtors bars action against the others, 509, 526.
unless the others are beyond seas, 510, 526.
against one of joint wrongdoers, 509.
effect of, against plaintiff, in estoppel, 93, 510.
effect of, in charging land, 93.
registration of, 93.
revival of, against heir, 94.
priority of, in administration of assets, 95.
foreign judgment against defendant, 73, 514.
against plaintiff, 414. See Foreign Judgment.

Lanp. See Sale of Land.
contract or sale of interest in, within the Statute of Frauds, 131.
contracts relating to tenancy and occupation, 131
to lay out money in improvement, 131.
INDEX. 677

Lanp—continued.
agreements for apartments of house, 131.
for board and lodging, 132.
auction of land, 132. — ~
mortgages, 132.
shares in companies, 182, 138.
fixtures, 133, 138.
emblements and produce of land, 133, 138.
license to enter land, 184, 135,162. See License.
effect of judgment in charging land, 93.
remedy for specialty debt against land, 86,637. See Heir and Devisce.
real estate made assets for payment of all simple contract and specialty
debts, 87, 638.
covenants running with land, 615. See Covenant,
Lanpitorp anp Trnant. See Lease.
LEASE.
extrinsic evidence not admissible to vary written lease, 104.
when old or new style used in, 104.
when lease subject to custom of the country, 115.
farming lease with penalty for carrying off manure, ploughing meadow,
and the like, 574, 582.
tenancy from year to year determinable by notice to quit, 421.
proviso rendering lease void or voidable, 423.
time and place for payment of rent reserved, 449.
breach of condition in non-payment of rent, 449.
covenant to pay rent, 449.
covenants running with the term, 617, 620.
with the reversion, 617, 620.
what covenants will run with the land, 620.
covenant to insure, performance of, 435.
relief against forfeiture for breach of, 435.
when it runs with the land, 621.
covenants to repair, 343.
condition precedent that lessor find material or put in repair, 343.
runs with the land, 618.
covenant to build on demised premises does not run with the land, 619.
covenants respecting cultivation, carrying on trade, etc., 621.
run with the land, 621.
lessee estopped from denying reversion in lessor, 623.
lessee bound by custom to pay expenses of lease, 42.
infant lessee, liability of, for rent and covenants, 227, 229, 230.
infant lessor, how far bound, 230.
by tenants in common jointly, right to sue on covenants, 220, 627.
by tenants in common severally, 618.
by joint tenants, 618.
Leeacy.
liability of executor for, 73, 126. :
admission by executor of money received for, 73, 126.
account stated by executor respecting, 73, 126.
Letter.
contract contained in, 13.
offer of contract by, 18.
acceptance by, 18. .
when sufficient note of contract within Statute of Frauds, 141, 142.
LIceyss.
to enter land, 134.
not an interest in lavid within Statute of Frauds, 134.
contract within the Statute available to prove license, 162.
coupled with grant, irrevocable, 134.
parol license does not excuse breach of covenant, 418.
678 INDEX.

Lizn.
of seller of goods for the price, 156.
of factor on the goods and the price for balance of account, 274, 305.
of auctioneer on price of goods for commission, 305.
of pawnbroker, 393.
not affected by Statutes of Limitation, 530.
not affected by set-off, 547.
owner of chattel not liable for charges of detention under lien, 29.
Lire.
insurance. See Inswrance.
Limitation, STATUTES OF.
statutes limiting actions on simple contracts, 521.
on contracts by specialty, 521.
for debts created by statute, 522.
for penalties, 523.
disabilities excepted by the statutes, 524.
affecting plaintiffs, 524.
infant, feme covert, non compos mentis, 524.
privilege of imprisonment and beyond seas taken away, 524.
affecting defendants, 525.
defendant beyond seas, 525.
definition of beyond seas, 525.
case of joint debtor beyond seas, 510, 526.
disability must exist at time of accruing of cause of action, 526.
statute continues to run notwithstanding subsequent disability, 526.
when the Statutes of Limitation begin to run, 526.
bonds, 527.
bills and notes, 527.
debts with fixed credit, 528.
debts of indefinite credit, 528.
where cause of action unknown, 528.
where cause of action fraudulently concealed, 529.
damage subsequently accruing, 529.
effect of the statutes, in bar of action, 529.
must be specially pleaded, 529.
no relief in equity against, 530.
do not apply to equitable claims, 530.
effect of lapse of time in equity, 530.
trusts for payment of debts, 530.
do not apply to debts proveable in bankruptcy, 530.
renewal of simple contract debts, 531.
by promise or acknowledgment, 531.
Lord Tenterden’s Act requiring writing, signed, 531.
what acknowledgment suflicient, 533.
conditional and limited promise, 584.
by part payment, 536.
’ transactions equivalent to payment, 538.
by payment of interest, 539.
effect of general payment. unappropriated by debtor, 539.
payment by agent, 540.
renewal gives new cause of action, 541.
must be complete before action brought, 541.
applies only to debts, 542.
renewal of specialty debts by acknowledgment, 5-42.
what acknowledgment sufficient, 543.
renewal by one of joint debtors does not affect the others, 543.
capacity to renew debt, of infant, 543.
of married woman, 543,
account stated respecting debt barred by, 70, 72.
debt barred by, will not support set-off, 550.
INDEX. 679

Liquipatep Damages, 573. See Damages.
Liquors.
sale of spirituous and exciseable liquors regulated by statute, 393, 410.
Loan. See Money lent.
by pawnbroker, must be according to Act, 392.
Lowpon.
custom of the City, as to married women trading, 236.
" appointment of attorney by the corporation, 255.
OSS.
of written instrument, 433.
secondary evidence, when admissible, 433.
of negotiable instrument, 434, 480.
loser may recover, on giving indemnity, 434, 481.
Lunatic, 247. See Insanity.

MAINTENANCE AND CHAMPERTY.
what constitutes, 385.
contracts involving, 385.
contracts by attorney, to share subject of suit, 386.
MarriaGe. See Husband and Wife.
assigns to husband rights of contract of wife, 630.
husband must join wife in suing, 630.
may sue alone on negotiable instrument, 630.
wife may sue alone subject to plea in abatement, 631.
releases debts due from husband to wife, 631.
renders husband liable for debts of wife, 631.
husband must be sued jointly with wife, 631.
wife may be sued alone, subject to plea in abatement, 631.
taking wife in execution, 631.
effect of death of husband, wife surviving, 632.
upon rights of contract of wife, 632.
upon liabilities, 632.
effect of death of wife, husband surviving, 633.
reduction into possession by husband of chose in action of wife, 633.
death of husband pending action, 634.
bankruptcy of husband transfers his right to wife’s chose in action to
assignees, 635.
assignees must sue jointly with wife, 635.
right of wife by survivorship prevails over right of assignees, 635.
bankruptcy of husband discharges debts of wife for which he was
liable, 635.
divorce restores wife to position of a feme sole as to her contracts, 635.
contracts made upon consideration of marriage within the Statute of
Frauds, 130.
mutual promises to marry not within the Statute, 130.
representations made to induce marriage, 130, 131,
breach of promise to marry, by marrying another, 461.
promise to marry not excused by supervening disease, 634.
right of action for breach of promise of, does not pass to executor, 365,
642, 644.
nor to assignees in bankruptcy, 646.
damages in action for breach of promise of, 566.
contracts in restraint of, 398.
contracts to procure, 398.
separation deeds, 398. = eas
agreements respecting proceedings in Divorce Court, 399.
compromise of suit for divorce, 399.
Master AnD SERVANT.
contract for service for more than a year, within Statute of Frauds, 135.
though determinable by notice within the year, 137.
680 ‘ INDEX.

Master anp Servant—continued.
contract implied from continuing in service, 135.
contracts for service determinable by notice, 421.
customs of trade as to determination of service, 114, 422.
customary engagement of domestic servants, 114, 422.
to what services it applies, 114, 422.
contracts for service determined by death of party, 365.
right of action for wrongful dismissal passes to assignees in bankruptcy,
646.
when servant authorized to bind master by contract, 283.
authority implied from habitual dealing by servant, 283.
servant entrusted with management of business, 283.
employed to sell horse, when authorized to give warranty, 284.
ratification by master of contract of servant, 284.
Mepicat Man.
cannot recover for attendance and medicine without proof of registration,
394.
right of action against, for negligence does not pass to executor, 644.
does not pass to assignees in bankruptcy, 646.
MERCHANT.
law merchant judicially noticed, 611.
evidence not admissible of usage to the contrary, 611.
bills of exchange assignable by, 611. Sce Bill of Exchange.
MERGER.
of inferior in higher remedy, 506.
the remedies must be co-extensive, 507.
as to the debt, 507.
as to the parties, 507.
by judgment recovered against defendant, 92, 508.
against one of joint debtors, 509.
of term to which covenants are annexed, 626.
statute preserving incidents and obligations of term, 626.
MISREPRESENTATION.
constituting fraud, 182. See Fraud.
as ground for avoiding insurance, 199. See Insurance.
MIsTakE.
as cause of avoiding agreement, 168.
of one party, not known to the other, immaterial, 168.
in motive of party, 170.
specific performance may be refused, 171.
of one party known to the other, 171.
when it amounts to fraud, 171.
in expressing agreement, 171.
in matter inducing the agreement, 172.
common to both parties, 172.
in expressing the agreement, 172.
cannot be shown in law, 172.
obvious mistake corrected, 173.
ground for reforming or setting aside agreement in equity, 174.
in matter inducing the agreement, 176.
contracts conditional on facts supposed, 176.
in matter of law, 178.
of both parties, as to application of agreement, 178.
latent ambiguity, 179.
patent ambiguity, 179.
when mistake available in pleading at law upon equitable grounds, 179.
money paid under, when recoverable, 57.
under mistake of law, 59. !
alteration made in instrument by mistake, 430. See Alteration.
correction of mistake in written instrument, 430,
INDEX. 681

Mowery Lent.
for illegal purpose, cannot be recovered, 402.
for gaming, 402.
to pay losses at gaming, 402.
securities for illegal loan, 402.
banker liable for deposit of customer as money lent, 530.
husband may sue alone for money lent by wife, 634.
interest not recoverable on, unless stipulated for, 584.
Mowery Parp.
at express request of defendant, 25, 40.
under indemnity, 25.
in discharge of accommodation bill, 26, 43.
upon implied request, 41.
compulsory payment of liability of another, 41.
payment of debt by surety, 42.
right of contribution between co-debtors, 43.
between co-sureties, 43.
between joint wrongdoers, 44.
payment of rent of another under distress, 44,
payment by tenant of charges on land, 44.
payment compelled by wrong or fraud, 45.
payments from which no contract implied, 46.
payment must be of money or equivalent, 46.
money paid for illegal purpose, 402.
money paid as consideration of illegal contract, 407.
interest not recoverable upon implied debt for, 584.
Money RECEIVED.
contract implied from money received for use of plaintiff, 47.
money of plaintiff obtained by wrong or fraud, 48.
money derived from goods obtained by wrong or fraud, 50.
money obtained by duress to the person or property, 52.
money obtained by oppression, 54.
money obtained by compulsion of legal process, 54.
money obtained by extortion, 57.
money obtained under a mistake, 57.
under mistake of law, 59.
money paid for consideration which has failed, 60.
partial failure of consideration, 62.
money paid under illegal contract, 64.
may be recovered while contract remains executory, 64.
not after contract is executed, 66.
_ except by person not 2m pari delicto, 66.
what is equivalent to receipt of money, 67.
interest not recoverable upon, 584.
assignment of debt for money received, 609.
Monru.
whether lunar or calendar month, 118, 446.
in general means lunar, unless context requires calendar, 118, 446.
usage admissible to show which intended, 118, 446.
in mercantile instruments means calendar, 446.
in Acts of Parliament means calendar by statute, 446.
in ecclesiastical matters means calendar, 447.
Morat Fravp, 187. See Fraud.
Mora OBLIGATION.
discharge of moral obligation of another raises no implied contract, 27, 46.
necessaries supplied to child cannot be charged to father unless ordered, 27.
promise to perform moral obligation not binding without valid considera-
tion, 315.
Morreaae. oy
equity of redemption is an interest in land within Statute of Frauds, 132.
equitable mortgage is not within the Statute, 132.
682 INDEX.

MorteacE—continued.
agreement to make equitable mortgage is within the Statute, 132.
relief in equity against forfeiture of, 447. ;
mortgage payable by instalments, the whole to be paid on default, —_re-
lief against default, 580. ; .
mortgage to be discharged by smaller sum on fixed day, no relief against
default, 580. snd
proviso for increase of rate of interest, if not punctually paid, 580.
for reduction of rate, if punctually paid, 581.
when relief granted against higher rate, 581.
interest recoverable on as damages, where not expressly covenanted, 586.
Mortvat Crevits.
set-off of mutual credits with bankrupt, 553.
what are mutual credits, 554, See Set-off
Morvat Depts.
set-off, 546. See Set-off.
MutvaL Promises. :
dependent and independent, 85, 344. See Promise.
when performance a condition precedent, 85, 344.

NECESSARIES,
contracts of infant for, 232. See Infant.
what are necessaries, 232.
securities given by infant for, 234.
father not liable for necessaries supplied to child unless ordered by him, 27.
when wife may pledge husband’s credit for, 246. See Husband and Wife.
supplied to lunatic, 247. See Insanity.
supplied to person during intoxication, 249.
NECESSITY.
circumstances of, creating agency, 267.
master of ship, 267.
acceptance or payment of bill supra protest, 267.
husband refusing to maintain wife, 267.
NEGOTIATIONS.
preliminary to contract immaterial, unless included in it, 16.
or unless amounting to fraudulent representations, 17. See Fraud.
Norice.
promises conditional upon notice, 338.
when notice a condition precedent, 339.
notice of indorsement not necessary to charge acceptor or maker of bill or
note, 340.
notice of dishonour necessary to charge drawer or indorser, 340.
contracts determinable by notice, 421, 443. : .
tenancy from year to year determinable by six months’ notice to quit,
421, 443.
contracts of service, 421, 443.
hiring of domestic servant determinable by month’s notice, 422,
443.
constructive notice that representation is false not sufficient to establish
fraudulent intention, 188. See Fraud.
or to avoid effect of relying upon the representation, 191.
notice to debtor necessary to complete title of assignee of debt, 603. See
Assignment.
notice to one of joint-debtors or co-trustees, 604.
priority of subsequent assignee with notice, 604.
a notice, debt is in order and disposition of the assignor, 604,
650. :
purchaser of land bound by notice of covenants affecting it, 616.
constructive notice sufficient to bind him, 614.
purchaser affected with notice of vendor’s title, 616.
INDEX. 683

OBLIGATION.
meanings of the term, 3, 82. See Moral Obligation.
OFrer.
of contract, 12.
acceptance of, 12, 13.
variance between offer and acceptance, 14.
continuance of, 17.
by letter, 18.
revocation of, 20.
by death, 22.
refusal of, 22.
not assignable, 23, 602.
in writing, accepted by parol, 102.
is sufficient note of contract within Statute of Frauds, 102, 150.
in writing signed before acceptance, is sufficient note within the Statute,
143.
OFFENCES.
contracts for commission of, illegal, 382.
compounding offences illegal, 383.
prosecution for perjury, 383.
for assault, 384.
for nuisance, 384.
petition for bribery, 384.
money paid to compound prosecution, when recoverable, 408.
OFFICE.
fees obtained by usurpation of, how recoverable by party entitled, 50-
gratuities given to usurper of, not recoverable, 50.
illegal and excessive fees obtained by, recoverable, 57.
persons jointly filling, must act jointly, 212.
traffic in public offices illegal, 381.
contracts for sale of, 381.
contracts for resignation of, 382.
OPPRESSION.
money obtained by, when recoverable, 54, 67.
ORDER.
payment by debtor according to creditor’s order, 482.
effect of order by creditor upon debtor in assigning the debt, 603, 610.
See Assignment.
when it amounts to a bill of exchange, 603, 610.
bills and notes payable to order, 611. See Assignment.

PaReENT.
not liable for necessaries supplied to child, unless ordered by him, 27.
PaRou.
parol contracts, 97.
meaning of term, 98 (a).
parol evidence in variance of written contract, 103. See Writing.
when contract in writing may be altered or discharged by, 414.
contract within Statute of Frauds cannot be altered or in part waived by,
415.
whether it can be wholly waived by, 416.
bills and notes may be discharged by parol waiver, 418.
contract under seal cannot be altered or discharged by parol agreement,
418.
parol license no excuse for breach, 418. :
condition precedent to covenant cannot be discharged by parol, 419.
parol agreement in variance of deed may be binding, 420.
and may be ground of equitable defence, 421.
right of action cannot be released by parol, 498.
effect of parol release in equity, 499.
684 INDEX.

PARTIES.
number of parties, 210.
contract must involve two parties, 210.
contracts defective for want of promisee, 210.
joint contracts, 212.
joint debtors, 213.
must all be sued, 213.
plea in abatement of non-joinder, 213.
judgment and execution against, 214.
liability of survivor of, 215.
joint creditors, 215.
must all join in suing, 215.
effect of omitting joint-creditor as plaintiff, 215, 216.
right of survivor of, 216.
parties contracting severally respecting same matter, 216.
joint and several contracts, 217.
construction of contracts as to joint and several parties, 218.
as to joint and several liability, 218.
as to joint and several rights, 218.
contracts construed according to the interests of the parties, 218.
payment to one of joint-creditors or by one of joint-debtors, 486. See
Payment.
rights of joint and several parties as between themselves, 220.
contract affects parties only, 221.
exception as to contract by agent on behalf of principal, 222.
who are the parties to a contract, 223.
contracts expressly inter partes, 223.
designation of parties by description, 224,
deeds poll, 224,
parties entitled by statutes, 225.
extrinsic evidence necessary of identity of parties, to written contract, 119.
when evidence admissible to show that party is agent, 119, 225. Sce
Principal and Agent.
PaRTNERS.
authority of one partner to bind the others, 277.
how far participation in profit renders a person liable as partner, 277.
partnerships excluding agency of partners, 277.
revocation or restriction of partner’s authority, 278.
dissolution of partnership, 279.
retirement of partner, 279, 287.
notice in Gazette, 279.
contracts by partner in fraud of partnership, 279.
authority limited by purposes of the partnership, 279.
authority as to bills and notes, 280.
names of partners may be used or name of firm, 280.
bills negotiated by partner in fraud of partnership, 282.
bill given by partner for separate debt, 282.
partner can bind his co-partners jointly only and not severally, 281.
infant partner, how far bound, 229, 231.
payment to one of partners, 486.
transfer of debts upon change in firm, 611.
account stated respecting balance of account between partners, 73.
PAWNBROKER.
act regulating contracts of, 392.
cannot recover money lent contrary to the Act, 392.
lien of, 393.
Payment.
in performance of contract, 471.
in satisfaction of breach, 471.
after action brought, 472.
of debts by bond or covenant, 473.
INDEX. 635

PaYMENT— continued.

payment post diem, 473.
transactions equivalent to payment, 474.
payment of smaller sum than debt, 474.
setting off cross items in account, 475.
bill or note taken for the debt, 476.
goods taken in payment, 481.
payment according to direction of creditor, 482,
receipt given by creditor, 483.
receipt under seal, 485.
to and by whom payment may be made, 486.
to one of joint-creditors, 486.
trustees, 486.
partners, 486.
executors, 486.
assignees of bankrupt, 486.
by one of joint-debtors, 487.
by an agent, 487.
by astranger, 487.
to an agent, 488.
appropriation of payments, 491. See Appropriation.
by the debtor, 491.
by the creditor, 494,
by law, 496.
payment in written contract primd facie means cash, 113.
usage of trade as to credit, 113.
payment of part of debt or interest takes debt out of the Statutes of
Limitation, 536, 5389. See Limitations.
part payment of price takes sale out of the Statute of Frauds, 161. See
Frauds, Statutes of.

PAYMENT InTO Court.

of principal and interest due on bond, 83, 575.
must accompany plea of tender, 453.

PENALTY.

whether sum payable on breach of contract is penalty or liquidated
damages, 573. See Damages.
relief against penalty for breach of contract, 82,575. See Bond ; Damages.
statute imposing penalty impliedly prohibits, 376.
statutory regulations of trade enforced by penalty, 393. *
contracts contrary to such regulations void, 393.
limitation of actions for, by informer, 523.
by party grieved, 523.
under a bye-law, 523.

PERFORMANCE.

discharge of contracts by, 435.
tender of, 435.
must accord with the terms of the contract, 435.
of contract to pay money, 436.
payment in satisfaction, 436.
transactions equivalent to payment, 437.
of contracts for sale of goods, 437.
aato quantity and quality of goods, 437. See Payment.
of contract for sale of land, 439.
as to title, 439.
as to description of land, 439.
time of, 440.
where no time expressly appointed, 443.
construction of contracts as to time, 444.
meaning of terms “forthwith”, etc., used in contracts, 44. See
Words.
686 INDEX.

PERFORMANCE—continued.
relief in equity against lapse of time, 447.
where time is of the essence of the contract, 448.
place of, 448.
duty of debtor to seek creditor, 448.
when the creditor is abroad, 450.
of condition precedent, 350.
partial performance of, 350.
excuses of performance of, 351, 352.
pleading performance and excuses of performance of, 353.
PHRASES.
used in contracts, meaning of. See Words.
PLace.
place for performance of contract, 448.
where no place appointed, debtor bound fo find creditor, 448.
under bonds, 448.
mortgages, 449.
covenant to pay rent, 449.
rent reserved payable on the land, 449.
must be demanded on the land before re-entry for forfeiture,
449.
pills and notes, 450.
when made payable at a particular place, 450.
compositions with creditors, 450.
debtor excused from tender, if creditor abroad, 450.
not under foreign contracts, 450.
Post. :
offer to be accepted by return of post, 17.
offer by letter, by what post to be accepted, 18.
contract complete on posting acceptance, 18.
delay of acceptance in post, 19.
payment of money by post, 482.
by post-office order, 482.
PowER OF ATTORNEY.
necessary for execution of deed, 265.
joint and several, how exercised, 284.
deed must be made and executed in name of principal, 285.
attorney executing in his own name, 285.
when revocable, 287.
revoked by death of principal, 288.
of Bank of England, requires notice of death, 288.
PRESENTMENT.
of bill for payment, necessary to charge drawer or indorser, 340,
of check on banker, reasonable time for, 479, 480.
consequences of neglect of, 479, 480.
PRINCIPAL AND AGENT.
contracting by agent, 264.
appointment of agent, 265.
modes of appointing, 265.
power of attorney, 265.
when writing required, 266.
implied authority, 266.
authority arising from necessity, 267.
ratification of assumed authority, 268.
extent of authority, 270.
construction of written authority, 270.
power of attorney, 270.
general and particular agents, 271.
general authority, 271.
particular authority, 273.
INDEX. 687

PRINCIPAL AND AGENT—continued.
factor, 274.
broker, 275.
del credere agent, 276.
partner, 277.
master and servant, 283.
execution of agency, 284.
joint authorities, 284.
powers of attorney, 285.
delegation of authority, 285.
revocation of authority, 286.
authority coupled with interest irrevocable, 286.
when notice of revocation necessary, 287.
revocation by death, 288.
construction of contracts as to whether the principal or the agent is the
actual party, 289.
in contracts under seal, 290.
in simple contracts in writing, 290.
contracts with brokers, 292.
partners, 292.
solicitors, 292.
bills of exchange and promissory notes, 293.
extrinsic evidence of agency not admissible to discharge party
from written contract, 294.
in contracts not in writing, 295.
contracts with foreign principal, 295.
sales by auction, 296.
contracts with carriers, 296.
liability of principal on contract made by agent, 296.
extrinsic evidence of agency admissible to charge principal on written
contract, 297.
exception with bills and notes, 297.
and contracts under seal, 297.
condition that principal is not prejudiced by being charged, 299.
charging principal discharges agent, 300.
right of principal on contract made by agent, 300.
extrinsic evidence of agency admissible to entitle principal on written
contract, 302.
exception as to bills and notes and contracts under seal, 302.
condition that other party is not prejudiced by principal suing, 303.
claim of principal discharges liability to agent, 304.
contract by party as agent who is himself the principal, 305.
where another person is named as principal, 306.
contract made by agent for another, without authority, 307.
implied warranty by agent of his assumed authority, 307.
payment by agent, 487.
to agent, 488.
authority of agent to receive payment, 488.
imports payment in money only, 490.
Principal AND SuRETY. See Guarantee.
PRINTING.
statutory regulations of, 394. . ;
printer cannot recover for printing unless he has complied with, 394.
printer cannot recover for printing libellous or immoral work, 400.
Prisoner. See Imprisonment.
of war, contracts of, 396.
Process.
money obtained under legal process not recoverable while process stands, 55.
under colour of legal process, 55.
remedy by setting aside or amending, 55.
688 INDEX.

Promise.
what constitutes, 9.
promissory expressions not intended to be binding, 9.
consideration for, 10, 309. See Consideration.
gratuitous promise, 13, 84, 31¢.
absolute and conditional promises, 332.
condition precedent, 333.
condition subsequent, 333.
promise conditional upon lapse of time, 333.
upon a certain event, 334.
upon an uncertain event, 334.
upon the will or act of the promiser, 335.
upon an act of a third party, 336.
upon request or demand, 337.
upon notice, 338.
construction of contracts as to conditions precedent, 341.
dependent and independent promises, 344.
rules derived from the time of performance of the promises, 345.
rules derived from the matter of the promises, 347.
performance of conditions precedent, 350.
excuses of performance, 351.
pleading performance and excuses of conditions precedent, 352.
alternative promises, 353.
right of election of alternative, 354.
election once made is irrevocable, 355.
notice of election, 356.
impossibility of alternative, 356, 371.
Promissory Nore. See Bill of Exchange.
payable to maker or order, 210.
to uncertain payee, 211.
on demand, recoverable without demand, 454.
amount may be tendered before demand, 455.
statute of limitation runs from date of, 455, 527.
statute placing promissory notes on same footing with bills of exchange,
612.

PROSPECTUS.
of companies, when fraudulent, 183, 192.
shareholder induced to take shares by, 192.
purchase of shares induced by, 192.

QUANTUM MERUIT.
implied promise to pay, 38.
QuIET PosskssIon.
covenant for, runs with land, 620.
damages for breach of covenant for, 596.
Qui Tam ACTION.
limitation of, 523.
money paid to compound, 67, 408.

Raitway.
offer of contract in published time-tables, 13.
debt for luggage carried by excursion train, 30.
contracts by railway company, wltra vires, 259.
bonds to secure loan in excess of borrowing powers, 259.
bonds given for debt of contractor, 259.
company has no power to accept bills, 259.
powers of directors, 260.
contracts by directors, 261.
contracts by promoters of company, 264.
Ransom Bix.
made illegal by statute, 396.
INDEX. 689

RatIFIcation.
of assumed authority of agent, 268.
of signature of agent within Statute of Frauds, 152, 268,
of contract made during infancy, 229.
must be in writing signed by party, 229.
cannot be made by agent, 229, 265.
by husband of contract of wife, 246.
of unauthorized or informal contract on behalf of company, 263.
Reat Estare.
covenants annexed to, 615. See Covenants running with Land.
effect of judgment in charging, 93.
remedies against heir and devisee, 637. See Heir; Devisee.
made assets for payment of debts, 87, 638.
See Sale of Land.
REASONABLE.
promise must be reasonably practicable, 357.
and reasonably certain, 357.
sale not stating price imports a reasonable price, 147.
contract not stating time, imports a reasonable time for performance,
443,
forbearance for reasonable time, 324.
evidence admissible to show what is a reasonable time or reasonable price,
120.
ReEceIer.
effect of receipt as admission, 483.
evidence admissible to contradict or explain, 483.
by one of several trustees or partners, 483.
receipt of premium in policy of insurance, 484.
stamp, 484.
right of debtor to demand stamped receipt after payment, 459, 484.
receipt under seal, 485.
receipt of consideration in deed, 485.
receipt indorsed on deed, 485.
RECOGNIZANCE, 95.
REcorD.
what itis, 88.
effect of, in evidence, 89, 92.
how proved, 89.
enrolment of, 89.
courts of, 89 (a).
contracts of, 89.
of judgment, 89. See Judgment.
Repvction into PossEssion.
by husband of wife’s chose in action, 633.
by assignees of bankrupt husband, 635.
REFUSAL.
of offer of contract, 22.
to pay, after tender, 453. : :
to perform contract, when equivalent to breach, 462.
when not accepted as breach, 463.
may be retracted before acceptance, 464.
waives conditions precedent, 464.
RELEASE, ‘
of contract before breach, 497. See Rescission.
of right of action for breach, 497.
must be under seal, 498.
requires no consideration, 498.
operates in estoppel, 498. ;
discharge of bills and notes by parol waiver, 499.
effect of parol release in equity, 499.
690 INDEX.

RELEASE—continued.
conditional release, 499.
construction of release, 500.
of one of co-debtors, 500.
reserving right against co-debtors, 501.
by one of co-creditors, 502.
in fraud of third party, 502.
by one co-creditor in fraud of the others, 502.
by trustee in fraud of cestui que trust, 502.
replication of fraud to plea of release, 503.
obtained by fraud on releasor, 503.
covenant not to sue, when equivalent to release, 504. See Covenant not
to sue.
Rent. See Lease.
Repatr.
covenant to, runs with the land, 618.
covenant to, conditioned upon lessor finding material or putting in repair,
343.
accidental fire does not excuse covenant to, 363.
covenants to, excepting fire and tempest, 366.
REPRESENTATION.
contracts induced by false and fraudulent, 181. See Fraud.
contracts conditional upon truth of, 198. See Fraud.
REQUEST.
executed consideration requires previous request, 23.
request implied in law from acceptance of consideration, 23.
contracts arising from consideration executed upon request, 24.
money paid upon request, 40. .
when request implied in law, 41.
promises conditional upon request, 337. See Demand.
REScISSION.
of contract before breach by agreement, 413, 497.
requirements of new agreement rescinding contract, 414.
agreement rescinding contract in writing, 414.
agreement rescinding contract within Statute of Frauds, 415.
waiver of bills and notes, 418.
rescinding contracts under seal, 418.
contracts reserving option to rescind, 421.
RESTRAINT OF MARRIAGE.
contracts in restraint of marriage, 398.
contracts to procure marriage, 398.
separation deeds, 398.
contracts concerning proceedings in Matrimonial Court, 399.
RESTRAINT OF TRADE.
contracts in restraint of trade, how far legal, 387.
reasonable restraint allowed, 388.
what restraint is reasonable, 388.
restrictions as to space, 388.
how measured, 392.
restrictions as to time, 389.
restrictions held reasonable in particular trades, 390.
REVOCATION.
of offer of contract, 20. See Offer.
of authority, 286. See Principal and Agent.
authority coupled with interest irrevocable, 286.
notice of revocation, when necessary, 287.
by death, 288.
revocation by husband of wife’s authority to pledge his credit, 243, 244,
Rewanrp.
contract by advertisement offering, 13.
INDEX. 691

Rieuts.
rights to things, 1.
against persons, 2.
ex contractu and ex delicto, 3.
of action, 5.
of action for breach of contract, 460.
how discharged, 465.

SaLE oF Goons.
Statute of Frauds as to sale of goods of value of £10, 137.
what are goods within the statute, 138.
contracts for work in making goods, 138.
sale of several articles in one contract, 140, 160.
acceptance of goods within the statute, 153. See Frauds, Statute of.
bought and sold notes, 275. See Broker.
sale of goods to be paid for by bill, 112, 333, 585.
sale of goods to be paid in cash, 112, 118.
usage of trade as to credit, 113.
usage of trade as to time of delivery, 112.
sale conditional on arrival by ship, 341.
sale impliedly conditional upon existence of the goods, 360.
sale of specific goods with warranty, 198. See Warranty.
sale of goods by description of kind and quality, 199.
selling chattel with latent defect, 185.
with patent defect, 186.
effect of fraud in sale of goods, 195, 196. See Fraud.
readiness to deliver, a condition precedent on part of seller, 347.
readiness to pay, a condition precedent on part of buyer, 347.
actual tender of goods or money not a condition precedent, 347.
performance of the contract by delivery, 437.
as to quantity of goods, 437.
as to quality of goods, 438.
sale by sample, 438.
as to time of delivery, 442.
damages for not paying price, 589.
when interest on price recoverable, 584, 585, 589.
breach of warranty may be shown in reduction of price, 589.
special damages for breach of warranty not allowed in reduction of
price, 589.
damages for not accepting goods, 589.
measured by market price at time for acceptance, 589.
damages for not delivering goods, 590.
measured by market price at time for delivery, 590.
where there is no market, 591.
special damage recoverable, 572.
loss of profits on resale when recoverable, 591.
SaLE oF Lanp.
sale of land within Statute of Frauds, 131. See Frauds, Statute of.
what acts of vendor and purchaser are conditions precedent on their parts,
346.
stipulations in contract giving option to rescind, 422.
performance of contract, 439,
as to title required, 439.
as to land to be conveyed, 429.
damages recoverable for default in making title, 595.
costs of investigating title, 595.
deposit money and interest, 595.
costs of suit for specific performance, 596.
loss of bargain, 596.
relief in equity against delay in completing, 4-47.
O92 INDEX.

Sate or Lanp—continued.
where time is of the essence of the contract, 448.
death of vendor or purchaser before completion, 640.
effect in equity as between heir and executor of deceased, 6441.
SAMPLE.
when acceptance of, satisfies Statute of Frauds, 159.
under sale by, goods delivered must agree with, 438.
Szax.
contracts under seal. 76.
of deed, 77. See Deed.
of corporation, 260. See Corporation.
SEPARATE PROPERTY.
of married woman in equity, 238.
her power of charging it by contracts, 238.
contracts in writing presumed to charge separate estate, 238.
married woman may be taken in execution in respect of, 631.
SEPARATION.
between husband and wife, by agreement, 236.
judicial separation, 237.
effect of on contracts and capacity of wife, 237.
separation deed, when legal, 398.
Servant. See Master and Servant.
SET-OFF.
no right of set-off at common law, 545.
set-off in equity, 545.
statutes of set-oll, 545.
set-off available by plea only, 546.
not available to reduce amount of tender, 546.
or to discharge lien on property, 547.
is not obligatory, 547.
must be due at time of action brought, 547.
what debts may be set off, 547.
claims for unliquidated damages, 548.
claims which may be framed either for debt or damages, 549.
claims partly for debt and partly for damages, 459.
debt barred by Statute of Limitations, 550.
debt discharged by bankruptcy, 550.
debt discharged by execution, 550.
debts must be mutual, 550.
joint and several debts, 550.
action brought by all persons in whom right supposed, 551.
debts to or from husband and wife, 551.
debts to or from executors, 551.
debts to or from testator or intestate, 552.
debts to or from bankrupt, 552.
debts to or from companies, 552.
debts to or from trustee, 553.
set-off of mutual credits with bankrupt, 553.
what are mutual credits, 554.
set-off against agent, when a defence to action by principal, 303.
payment by set-off of cross items in account, 475.
SEVERAL Contracts, 216. Sce Parties.
SHARES.
in oe holding land, not an interest in land within Statute of Frauds,
132.
in company, not goods within the statute, 138.
damages for not accepting shares sold, 589 (e).
damages for not delivering shares sold, 590 (c).
infant shareholder, liability of, 227, 231.
Suir. See Bill of Lading ; Charterparty ; Insurance.
INDEX, 693

SHOPMAN.
authority of, to receive payment, 489.
Sieanina.
of deed, when necessary, 76.
of written agreement, 106.
signing conditionally, 106, 108.
signing not required except by statute, 106.
attestation of signatnre, 107.
what sufficient to satisfy Statute of Frauds, 148, 149. See Frauds,
Statute of.
deed does not require signing within the Statute, 148.
SimpLe Coyrracts.
arising from agreement, 7. See Agreement.
form of, 11.
express and implied, 11.
in writing, 12, 97.
implied in law, 7, 38.
SMUGGLING.
sale of goods for the purpose of, 401.
SPECIALTY, 82. See Deed.
SPECIFIC PERFORMANCE.
of contract in equity, notwithstanding breach, 460.
of contract within Statute of Frands, after part performance, 176.
of agreement entered into by mistake, 170.
of agreement incorrectly drawn up, 174.
of written agreement with variation, 175.
of condition of bond, 84.
of contract with fixed sum payable on breach, 577.
contracts with option to pay money instead of performance, 577.
contracts obtained by imposition, 205.
contracts obtained by threats, undue influence or oppression, 209.
contracts made without consideration, 330.
contracts made with lunatic, 548.
contracts made during intoxication, 249.
contracts made with infant, 231.
SPIRITS.
sale of, regulated by statute, 393.
bill given for spirits sold contrary to the statute, 410.
SraKEHOLDER.
money deposited with, upon illegal wager, when recoverable, 65, 407.
Sramp.
alteration in instrument rendering new stamp necessary, 430.
STATUTE.
merchant and staple, 95.
debts created by, 96.
contracts illegal by, 376.
effect of statute imposing penalty, 376.
Stature or Fravups. See Frauds.
Srature oF Limitation. See Limitation.
Srocx.
wagers on price of public stock, 381.
authority of brokers employed on Stock Exchange, 272.
SuspstiturTED Contract. See Rescission.
Surety. See Guarantee.

Truancy. See Lease. :
of land, contracts concerning, within Statute of Frauds, 131. See Frauds,
Statute of. : : .
surrender of tenancy at will, not a valid consideration, 327, 329.
determination of, by notice to quit, 421.
694 INDEX.

Tenant. See Lease.
TENDER.
plea of tender, 452.
is in bar of action, 452.
continued readiness to pay, 452.
subsequent demand and refusal, 453.
payment into Court of sum tendered, 453.
when tender is to be made, 454.
debts payable on day certain, 454,
debts of indefinite credit, 454.
how tender is to be made, 455.
money must be produced, 456.
what coin or paper sufficient, 456.
tender in bills or notes, 457.
amount to be tendered, 457.
set-off not available in reduction of, 458.
tender to part of claim, 458.
tender must be unconditional, 458.
when receipt may be demanded, 459.
to and by whom tender to be made, 459.
tender duly made prevents claim for interest, 587.
TERMS.
used in contracts, meaning of. See Words.
Tureats. See Duress.
contract induced by, 206.
money obtained by, 52, 207.
Timez.
time of performance of contract, 440.
where a certain space of time is allowed, 441.
where a certain place fixed, 441.
where no time expressly appointed, 443,
construction of contracts as to time, 444,
meaning of terms“ directly,” “forthwith,” “from the date,” etce.,
444. See Words.
“ month,” when « lunar or a calendar month, 446.
whether old or new style used in lease, 104.
relief in equity against lapse of time, 447.
where time is of the sssence of the contract, 448.
TITLE.
vendor of land bound to make good title, 439.
good title means such as purchaser would be compelled in equity to take,
439.
stipulations limiting title to be required, 439.
damages recoverable against vendor for not making good title, 595.
when vendor contracted, knowing of defect in title, 596.
damages for breach of covenant for title, 596.
covenants for title run with the land, 619.
Tou.
illegally taken, debt for, 57.
Trave. See Restraint of Trade.
statutory regulations of particular trades, 392.
contracts contrary to, 392.
contracts by persons not licensed or qualified in their trade or busi-
ness, 394,
usage of, when admissible, 110. See Usage.
Trapina with Enemy. See Enemy.
TRUSTEE.
account stated by, of trust money received, 73.
payment to one of trustees, 486.
power of, to give reccipts, 486.
INDEX. 695

TRUSTEE—continued.
release by, in fraud of cestui que trust, 502.
set-off of debts by or against, 553, 607.
assignor of debt as trustee for assignee, 605.

Uncertainty. See Ambiguity.
contract void for uncertainty, 357.
Usace.
of trade, contracts upon basis of, 110.
evidence of, when admissible, 110.
to annex incidents to contract, 112.
to explain meaning of words, 116.
of Stock Exchange, binds party employing broker, 272.
of Lloyd’s, how far binding, 272.
USANcE.
of places, as to payment of bills and notes, 116.
UsE AnD OcouparTion.
of land, corporation may sue or be sued for, 256.

VALUATION.
contracts to pay upon valuation of third person, 336, 370.
by arbitration, as condition precedent, 519.
VALUE.
adequacy of, in consideration immaterial, 311.
in accord and satisfaction immaterial, 468.
VENDOR AND PurcHaseR. See Sale of Land; Title.
Votuntary Contract. See Consideration.
not binding unless under seal, 10, 84, 310.
not enforced in equity by specific performance, 330.
voluntary payment of mouey, not recoverable, 46, 56.

Wacerine Conrracts. See Gaming.
not illegal at common law, 377.
exceptions, 377.
made void by statute, 377.
securities for money payable under, 378.
securities for money won by gaming, 378.
wagering policies of insurance, 379.
wagers on price of public stocks, 381.
money deposited upon illegal wager, when recoverable, 65.
Waiver. See Rescission ; Release.
parol waiver of contract in writing, 414.
of contract within Statute of Frauds, 415, 416.
of bills and notes, 418, 499.
of contracts under seal, 418.
War. See Enemy.
contract becoming illegal by declaration of war, 397, 412.
WARRANT OF ATTORNEY.
authority to enter judgment, 89.
defeasance of, 82.
statutory regulations as to, 90.
jurisdiction of court to restrain execution under, to just amount, 580.
WARRANTY.
in contract of sale of goods, 198.
fraudulent, 198.
contract conditional upon, 199.
of goods by description, 199.
breach of, does not entitle buyer to rescind the sale, 63, 198.
unless warranty fraudulent, 198.
or unless option to rescind stipulated for, 421,
696 INDEX,

‘W ARRANTY—continued.
damages for breach of warranty of specific chattel, 593.
when chattel returned, 593.
when it is kept, 593.
loss of profit on resale, 593.
for fraudulent warranty, 594. coat
for not delivering goods answering the description contracted for,
594,
breach of warranty may be shown in reduction of damages in action for
price, 63, 589, 595.
special damage for breach, cannot be shown in further reduction,
589.
implied warranty by agent of assumed authority, 307.
fraudulent assumption of authority, 308.
damages recoverable against agent for breach of warranty of authority,
598. :
WEIGHT.
sale of goods by illegal weight or measure, 393.
Wire. See Husband and Wife; Marriage.
WITNESS.
conduct money paid to, after countermand of attendance, recoverable, 61.
when necessary to call attesting witness, 107.
Worps.
when evidence of usage admissible to explain, 116.
meaning of terms used in or connected with contracts :—
‘more or less’, ‘about’, 118, 437.
‘month ’, ‘days’, 118, 446.
‘forthwith’, 343.
‘usual dispatch’, 363.
‘directly ’, 444.
‘as soon as possible’, 444.
‘immediately on demand’, 444.
‘from the date’, 445.
‘from the making of’, 445.
‘from’, ‘ until,’ 446.
‘ Michaelmas’ and ‘ Lady Day’ whether old or new style, 104.
‘reasonable time’, ‘ reasonable price’, 121, 443, 444.
‘liquidated damages’ and ‘ penalty’, 577, 579.
‘approval ’, 335, 336.
‘approved bill’, 112.
‘ under protest’, 459.
Work.
contracts for, in making goods, when within Statute of Frauds, 138.
Writing.
contracts in, 97.
by agreement of the parties, 98.
by statute, 99.
Statute of Frauds, 100, 124.
Lord Tenterden’s Act, 100.
contained in several documents, 101.
partly in writing and partly by parol, 101.
proposal in writing accepted in terms, 102.
contract in writing cannot be varied by extrinsic evidence, 103.
extrinsic evidence admissible to prove
the making of an agreement in writing, 106.
that writing was signed without intending to contract, 107.
that contract was induced by mistake, fraud or duress, 108.
that contract was signed conditionally, 109.
usages of trade, 110.
to annex incidents, 112.
INDEX. 697

WRiTING—continued.
to explain terms, 116.
to identify the parties and the matter of the contract, 119.
to prove illegality, 123, 405.
construction of written contracts, 123. See Construction.
mistake in reducing agreement to writing, 172. See Mistake.

alteration or discharge of written contract by new agreement, 414. See
Rescission.
Wrone.
distinction between wrong and breach of contract, 5.
distinction as to damages, 566.
waiving wrong, and claiming on implied contract, 29, 48, 549, 563.
contract arising upon consideration obtained by wrong, 29.
debt for money obtained by, 48.
set-off of, or against, claim for wrong, 549.
discharge of, by bankruptcy, 563.

YEAR.

contract not to be performed within a year, within Statute of Frauds, 135.
See Frauds, Statute of.

Lo
S
PAGE
15.

16.

28.
44,

86.
96.
121.
122.

169.
183.

198.

219.
238.
240,
260.
271.

274.
283.
293.
331.
334,
358.
383.
392.
399.
399.
403.

415.
4238.
437,

699

ADDITIONS AND CORRECTIONS.

Note (d), add:—In re Leeds Banking Co., (Howard's case), L. Rep.
1Ch, Ap. 561; 36 L. J..C. 42; In ve Rolling Stock Co. of Ireland
(Shackleford’s case), L. Rep.1 Ch. Ap. 567; 86 L. J. C. 818.

Note (d), add :—See Levy v. Green, in the Exchequer Chamber, 28 L. J.
Q. B. 319.

Line 26 for “ defendant” read “plaintiff.”

Note (ec), add:—Englandv. Marsden, 35 L. J. O. P. 259; L. Rep. 1 ©. P.
529.

Note (d), for “Sect. III.” read “Sect. IV.”

Line 19, for “ debts”’ read “assets.”

Note (e), add :— Wood v. Proestner, L. Rep. 2 Ex. 66; 36 L. J. Ex. 42.

Note (4), add :—Lyle v. Richards, 35 L. J. Q. B. 214; L. Rep. 1 H. L.
222.

Add a note of Scrivener v. Pask, L. Rep. 1.C. P. 715.

Note (f), add:—Ross v. Estates Investment Co., 36 L. J. 0.54; L. Rep.
3 Eq. 122; Hallows v. Fernic, Weckly Notes, 1867, p. 53.

Note (a), add:—Jn re Overend, Gurney, and Co. (Peek’s case), Weekly
Notes, 1867, p. 53; notes of cases, 1867, p. 61.

Note (4), for “218 (f)” read “217 (f).”

Note (4), add:—Lr p. Matthewman, 36 L. J. C. 90.

Note (a), for “Sect. II.” read “Sect. ITI.”

Add a note of D'Arcy v. Tamar and Callington Ry. Co., 36 L. J. Ex. 37.

Note (e), add:—Treland vy. Livingston, L. Rep. 2 Q. B. 99 ; 836 L.J.Q.B.
50; Johnston v. Kershaw, Li. Rep. 2 Ex. 82; 36 L. J. Ex. 44.

Note (0), and 284 (b), add:—Howard v. Sheward, 36 L. J. C. P. 42.

Note (a), add :—£llston v. Deacon, L. Rep. 2 C. P. 20.

Note (e), add :—Gray v. Raper, L. Rep. 1 C. P. 694.

Note (g), add :—Coleby v. Coleby, L. Rep. 2 Eq. 803.

Note (a), add :—36 L, J. C. 114.

Note (a), add :—Dolling v. Evans, Weekly Notes, 1867, p. 31.

Add anote of Williams v. Bayley, 35 L. J.C. 717; L. Rep. 1 H. L. 200.

Add a note of Hornby v. Close, Weekly Notes, 1867, p. 15.

Note (¢), add :— Williams v. Baily, L. Rep. 2 Eq. 731.

Note (%), add :—L. Rep. 1 Divorce Ap. 63.

Note (0), and 404 (f), add:—Dauglish v. Tennent, 36 L. J. Q. B. 10;
L. Rep. 2 Q. B. 49.

Note (a), 416 (a), and 417 (0), add :—Noble v. Ward, aflirmed on appeal,
notes of cases, 1867, p. 64.

Note (a), add :—Duddell v. Simpson, affirmed on appeal, 36 L. J. 0. 70;
L. Rep. 2Ch. Ap. 102.

Note (g), add :—Ireland v. Livingston, L. Rep. 2 Q. B. 99; 36 L. J. Q.
B. 50.
700

PAGE

491.

491.
501.
513.
539.
543.
553.

571.
580.

590.
605.

614,
616.

617.
623.
632.

ADDITIONS AND CORRECTIONS.

Note (a), add :—See Catterall v. Hindle, on appeal, Weekly Notes, 1867,
58

Note, (e), add :—Kitchin v. Hawkins, L. Rep. 2 C. P. 22.

Line 7, for “creditors” read “ co-debtors.”

Note (d), add :—Frith v. Guppy, L. Rep. 2 C. P. 32; 36L. J. C. P. 48.

Note (e), add :—Maber v. Maber, Weekly Notes, 1867, p. 59.

Note (c), add :—Coope v. Cresswell, reversed on appeal, 36 L. J. C. 114.

Note (c), and 607 (e), add :—Agra and Masterman’s Bank v. Leighton,
36 L. J. Hx. 33; L. Rep. 2 Ex. 56.

Note (e), add:— Woodger v. Great Western Ry. Co., Weekly Notes,
1867, p. 37.

Note (f), add:—See Thompson v. Hudson, on appeal, Weekly Notes,
1867, p. 24.

Note (e), add:—Page v. Cowasjee Eduljee, L. Rep. 1 P. C. 127.

Note (a), add :—Jeffryes v. Agra and Masterman’s Bank, 35 L. J. C.
686; L. Rep. 2 Eq. 674.

Note (a), add :—Pease v. Gloahec, L. Rep. 1 P. C. 219.

Note (e), and 621 (c), add :— Western v. Macdermot, affirmed on appeal,
36 L. J. C.76; L. Rep. 2 Ch. Ap. 72.

Note (d), add :—Hlliott v. Johnson, 36 L. J. Q. B. 44.

Add a note of Hooper v. Clark, Weekly Notes, 1867, p. 17.

Note (a), add :—Poole v. Canning, Weekly Notes, 1867, p. 44.

THE END.

PRINTED BY vu. &. TAYLOR AND CO.,,
LITTLE QUEEN STREET, LINCOLN’S INN FIELDS.
cn ee ee aR ee

 

SO ER aE!
n the Debat

rd Campbell