(IJornpll iLlaui ^rl^onl iCibrary Cornell University Library KD 1554.L43 1892 3 1924 022 217 065 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924022217065 9 & 120, CHANCERY LANE, LONDON. NOW READY. Vols. t. & ii.: Abandonment— AnflEiiDifiENT. Hoyal 8vo., bound in half vellum. Price 25s. per Vol., net. RULING CASES: AREANGED, ANNOTATED, AND EDITED BY ROBERT CAMPBELL, M.A., Of Lincoln's Inn, Barrister-at-Law, Advocate of the Scutch Bar. ASSISTED BY OTHER MEMBEKS OP THE BAB. WITH AMERICAN NOTES By lEVING BEOWNE, Formerly Editor of the American Reports, ^e. 83" Subscribers for Five Volumes in advance will be entitled to them at £ 1 per Volume. {4;_ PLAN OF THE WORK. It is intended in this Work to collect and arrange in alphabetical order of subjects the useful authorities of English Case Law on points of general application. The matter under each alphabetical heading is arranged in sections, in an order indicated at the commencement of the heading. The more important and Euhng Cases are set forth at length, subject only to abridgment where the original report is unnecessarily diffuse. The effect of the less important or subordinate cases is stated briefly in the Notes. The aim of the Work is to furnish the practitioner with English Case Law in such a form that he will readily find the information he requires for ordinary purposes. The Ruling Case will inform him, or refresh his memory, as to the principles ; and the Notes will show in detail how the principles have been applied or modified in other oases. The American Notes, by Mr. Ieving Bbowne, are intended primarily for American use; but it is also considered that, particularly on some points which have been much discussed in American Cases, they may be of consider- able value to practitioners here and in the colonies. Each volume of the Work will contain an Alphabetical Table of Cases reported or referred to ; and when the Work is complete there will be a General Index of Subjects as well as a Table of Cases for the whole. It is estimated that the Work will be cnrried out in about 25 Volumes , of the size of an average volume of the " Law Eoportf.. " (about 800 pages), and issued at the rate of 5 volumes per annum. *.;i:* Prospectus, with Specimen Pages, gratis on application. *** All Standard Law Works are kept in stock, in law calf and other liinditifs. LAW OF CONTRACTS THIRD EDITION BY THE SAME AUTHOR, AN BLEMEirTABY SIQEST OF TEE LAW OF PEOPEETY IN LAND. Vol. I. containing : — ■ Paet I.— the SOXJRCES OP THE LAW. Freehold Tenure ; — Customary Tenure ; — Uses ; — Trusts and Equitable Estates. Pabt II.— estates in land. Fee Simple ; Eee Tail ; Terms of Tears ; Condi- tional Limitations ; — Equitable Estates ; Charges and Mortgages ; — Remainders ; Eeversiona ; and Executory Devises ; — Powers ; — Perpetuities and Accumulations ; — Priorities. Vol. II. containing : — USES AND PROFITS OF LAND. Part I. — Boundaries of Land ; Possessory Eights and Liabilities of Tenants ; — Timber ; Crops ; Minerals ; Game ; — Fixtures and Heirlooms ; — Inland Waters ; Sea and Sea Shore ; and Fisheries. Paet II. — Easements; — Profits a prendre; Commons; and Rents ; — Public Rights ; Highways ; and Local Customs. Each Vol. forms a separate Treatise, and may he had separately at the net price of I6s., or the two Vols, price £1 : 6s. A DIGEST PRINCIPLES LAW OF CONTRACTS BY S. MARTIN LEAKE BAREISTER-AT-LAW, THIRD EDITION LONDON: STEVENS AND SONS, LIMITED, 119 & 120, CHANCEEY LANE, Safe '§viMh^ns mii ^ssluUm, 1892. LONDON : PBIHTED BY 0. F. BOWOKTH, QEEAT NEW STEEET, FETTEE LANE, E. C. PREFACE. — ♦ — ._^ Requests for a new edition of this w<^k which have reached the editor have led to the conclusion that it has been more used in the practice of the profession than in the study of the law, for which, as originally prepared, he thought it might, perhaps, be useful. Therefore, in this new edition, he has endeavoured to revise the work strictly for the service of the profession, with the single aim of presenting a convenient Digest of the Leading Principles of the Law of Contracts as derived from judicial exposition. S. M. L. March, 1892. • a2 TABLE OF CONTENTS. PbEPACT! Table oi' Cases Paet I. FORMATION OF CONTRACTS. Chap. I. SIMPLE CONTRACTS. Sect. I. — CONTEAOTS POEMED BY AOEEEMENT. § 1 . Principles of Agreement ... .1 § 2. Agreement appKed to Contracts . . ..11 § 3. Contracts with executed considerations . . 36 Sect. II. — CONTEAOTS IMPLIED IN LaW. § 1 . Detts for Money paid . . . . . hi § 2. Debts for Money received . . . .70 § 3. Debts implied upon Accounts stated . . . 97 § 4. DebtsimpliedfromJudgmentsof Inferior andPoreign Courts . . . . . .104 Chap. II. CONTRACTS UNDER SEAL 112 Chap. III. CONTRACTS OF RECORD . . . .132 Chap. IV. CONTRACTS IN WRITING-. Sect. I. — AOEEEMENTS IN WeITINO .... 145 II. — Admission op Exteinsio Evidence . . .153 III. — Consibuotion op Conteacts in Weiting . .184 Vm TABLE OF CONTENTS. Chap. V. THE STATUTE OF EBATJDS. paoe Sect. I. — OONTEAOTS WITHIN THE STATUTE . . . . 201 II. — FOEMS KEaulEED BY THE STATUTE . . • 224 III. — Opeeation of the Statute' . . . . 261 Chap. VI. CAUSES VITIATINa AaEEEMENT. Sect. I.— Mistake ....... 262 II. — Feaud and Miseepeesentation. §1. Contracts induced by Fraud . . . . 291 § 2. Warranties and Contracts of Insurance . . 330 Sect. III.— DuEESS ahd Undue Inixttenoe . . . . 350 Part II. PARTIES TO CONTRACTS. Chap. I. PEnSTOIPLES OF THE LAW OP PARTIES . . 362 Chap. II. PEINCIPAL AND AGENT. Sect. I. Peinoiples or the Law oe Aqenoy . . . . 387 II. Paeties to Conteaots of Aqents . . 412 III. Genebal Aoents ... . . 433 Chap. III. CAPACITY OF PAETIES. Sect. I. PoLiTicAi Status . . . 461 II. Infants ... . . 466 III. Maeeied Women ... . . 478 IV. Inbanitt and Intoxication . . . 501 V. COEPOEATIONS AND COMPANIES . . . 606 Part m. MATTER OF CONTRACTS. Chap. I. THE CONSIDERATION .... 526 II. THE PROMISE 649 III. IMPOSSIBILITY OF PERFORMANCE . . .690 IV. ILLEGALITY 620 TABLE OF CONTENTS. IX Paet IV. DISCHARGE OF CONTRACTS. PAOB Chap. I. EESOISSION BY NEW AGEEEMENT . . .681 II. ALTERATION AND LOSS OF WRITTEN INSTRU- MENT 696 III. PERFORMANCE OF CONTRACT . . . .709 IV. TENDER . . . 739 V. BREACH OF CONTRACT . ... 748 VI. ACCORD AND SATISFACTION . . . 755 VII. PAYMENT IN SATISFACTION . . . .762 VIII. RELEASE 794 IX. MERGER AND ESTOPPEL . . . .804 X. ARBITRATION AND AWARD . . . 816 XI. STATUTES OF LIMITATION . . . .827 XII. SET-OFF AND COUNTERCLAIM . . . 867 XIII. BANKRUPTCY . . . . 884 Paet Y. REMEDIES FOR BREACH OF CONTRACT. Chap. I. DAMAGES AND INTEREST. Sect. I. PEINOIPLEa OF THE LaV OF DAMAGES . . . 897 II. Application to Contbaots . . . .911 III. LiairiDATED Damaqes and Penalxt . . . . 933 rv. Inteeest ....... 943 Cbap. II. SPECIFIC PERFORMANCE AND INJUNCTION. Sect. I. JuBiSDicnoN m Specific Peeeobmance . . . 959 11. Application of Specific Peefoemance . . . 976 TABLE or CONTENTS. Part VI. ASSIGNMENT OF CONTRACTS. Chap. I. PRINCIPLES OF ASSIGNMENT . . . .996 II. ASSIGNABLE CONTBACTS 1016 III. COVENANTS EUNNING WITH LAND . . . 1037 IV. ASSIGNMENT BY MARRIAGE . . . . 1065 V. ASSIGNMENT AT DEATH .... 1072 VI. ASSIGNMENT IN BANKRUPTCY . . . 1091 INDEX ... U07 TABLE OF OASES («). Aas V. Benham, 458. Abbot V. Greemrood, 560. V. Smith, 372, 373. Abbott V. Bates, 10, 165. V. Hendricks, 156. f . Paratt, 1085. Abbotts V. Barry, 43. Aberaman Iron Works v. Wickens, 88, 259, 285. Abinger v, AsMon, 970. AbonlofE V. Oppenheimer, 110. Abrey v. Crux, 166, 162. Aoatos i>. Bums, 51, 450. Aoebal v. Levy, 180, 230, 233, 237. Ackerman v. Ehrensperger, 947. AoMand v. Lutley, 729. Aokroyd v. Smith, 1043. A'Court V. Cross, 853. Acton V. Woodgate, 836. Adam's case, 22. Adam's Policy Trusts, Re, 656. Adam ii. Newbigging, 326. Adams, i. g., 187. Re, 1044. V. Bankart, 456. V. Dansey, 208. V. Gibney, 199. V. Lindsell, 26. V. North Scotland Ry., 818. V. Richards, 335. 1). Royal MaU Co., 600. V. Weare, 279. V. Wordley, 165, 156. Adamson's case, 774. Adamson, Exp., 380, 891, 892. D. Jarvis, 5, 39, 408, 443. V. Newcastle Steam Co., 615. Adderley v. Dixon, 964. Addinell's case, 18. Addison v. Cox, 1006, 1009. V. Gandasequi, 417. Addlestone Linoleum Co., Re, 11h. Adey v. Arnold, 126, 197. AdMas V. Arcedeckue, 60. V. Parrington, 889. Adlard ». Booth, 50. Adnam v. Sandwich, 862. Adsetts V. Hives, 116, 705. Agar V. Atbenseum Life Ass., 521. Agar-EUis ». LasceUes, 663. Aggs V. Nicholson, 423. Agra and Masterman's Bank, Exp., 399, 1008. Re, 12, 764. V. Leighton, 48, 874. Agricultural Ins. i>. Fitzgerald, 702. Aguilar v. Aguilar, 486. Aheam v. Bellman, 582. Aiken v. Short, 84. Aitchison v. Lohre, 42, 655. Akerman, Re, 850. Albert v. Grosvenor Investment Co., 692. Albion Ass., Re, 453. Albion Steel and Wire Co. *. Martin, 411. Albreoht v. Sussman, 464. Alciator «. Smith, 463. Alcinbrook v. Hall, 665. Alcinous V. Nigreu, 463. Alcock V. Smith, 1000, 1018. Aldborough v. Trye, 355. Alder v. Boyle, 47, 444. Alderson i). Langdale, 700, 772. V. Maddison, 212, 664. Alderton v. Archer, 33, 162, 237. (a) The whole work having been kept in type until completion, by special favour of the printer, all the important cases upon the subject to the end of the year 1891, and some later oases which have been published whilst the sheets were passing through the press, wUl be found in the above Table. xu TABLE OF CASES. AldouB V. Comwell, 698, 699. Aldridge v. Aldridge, 662. Aleberry v. Walby, 489. Alewyn v. Pryor, 572, Alexander v. Barker, 420. V. Burchfield, 773. V. Campbell, 341. V. Mackenzie, 396. v. Mills, 716. V. Sizer, 423. V. Vanderzee, 173, 714. V. Vane, 38, 39, 256. Alison's case, 87, 812. Alkins V. Jupe, 674. Allam, i;xp., 528. Allan V. Liverpool, 213. 1). Simdius, 166, 168. AUanson v. Atkinson, 74. Allard, Hxp., 669. Alloard v. Skinner, 78, 79, 360. AUoock V. Moorhouse, 1042. AJlen, Se, 211. V. Bennet, 226, 228. V. Cameron, 91, 899, 907. 1). Carter, 140. V. Coltart, 600, 1028. V. Dundas, 1073. V. Harris, 757. V. Heam, 623, 649. V. Jackson, 659. V. Milner, 818, 819. V. Pink, 159. V. Eichardson, 88, 285. V. Soutbampton, 1005. V. Taylor, 639. AUetson v. Chicbester, 1008, 1009. AlHred i). AHfred, 102. Allfrey v. Allfrey, 837. AJlbusen v. Brooking, 204. V. Malgarejo, 33. AlHanoe Bank v. Broom, 542. V. Carey, 176, 833. V-. Kearsly, 370, 455. Allies V. Probyn, 758. AUin ». Crawsbay, 274. Allison V. Bristol Marine Ins., 90, 665. Allkins V. Jupe, 663, 654. Alloway d. Le Steere, 878, 881, 1099. AJlsopp V. Wbeatcroft, 634. Almada Co., Me, 288, 775. Alsager v. Currie, 880, 889. Altbam's case, 796, 797. Alvanley v. Kinnaird, 266. Alvarez v. Prieto, 176, 642. Ambrose v. Kerrison, 57. Ambrose Lake Co., Se, 365, 668. Amicable Ass. v. BoUand, 657. Amory v. Brodrick, 580. V. Meryweather, 666, 671. Amos V. Smith, 766, 859. Amott V. Holden, 842. Ancaster v. Mayer, 130. Anchor Ins. Soo., He, 286, 686. Ancona v. Marks, 391, 393. Anderson's case, 20, 312. Anderson, JExp,, 141. V. Commercial Union Ass., 688, 617. V. Fitzgerald, 346. ■ V. Hayman, 206. V. HiHies, 769. V. Martindale, 376, 381. V. Morice, 32, 343, 653. V. Ocean Co., 66, 448. V. Oppenheimer, 928. V. Pacific Ins., 296, 341. V. Eatcliffe, 633. V. Scot, 246. V. Weston, 730. Anderton's Contract, Be, 583. Andress' case, 775. Andrew, Sx p., 746. V. Aitken, 720, 1039, 1063. V. Pearce, 1060, 1055. Andrews v. BeMeld, 565. V. Hawley, 72. V. Salt, 663. V. Smith, 206. AngeU V. Duke, 163, 216. V. Haddon, 836. Anglo-Danubian N. McLacblan, 171. Ankerstein ». Clark, 489. Annandale v. Harris, 660. Annen v. Woodman, 343. Anonymous Cases, 219, 689, 617, 730, 733. Ansell V. Baker, 805. Anstee v. Nelms, 179. Anstey i\ Marden, 207. Anthony, Be, 130. Antoine v. Morshead, 464, 465. ApUn V. Cates, 1006. Applehee, Be, 1088. Appleby v. Dods, 62. V. Franklin, 71. V. Johnson, 16. V. Myers, 60, 61, 609, 619. Appleton r. Binks, 400. V. Campbell, 664. Appleyard's case, 774, 775. Aptborpe v. Apthorpe, 625. Arbib and Class, Be, 924. Arbuokle r. Cowtan, 626. TABLE OF CASES. XIU Aicedeckue v. Howard, 61, Archbold v. Scully, 842. Archer v. Baynes, 234. V. Hudson, 78. V. James, 646. Arden v. Arden, 137, 1008. J). Pullen, 304. V. Sullivan, 1042. Argoll D. Cheney, 697. Aris V. Orchard, 15, 32, 33. ArkwrighttJ. Newbold, 299, 312, 326. Arlington v. Merricke, 695. Armstrong, Se, 490. V. Stokes, 417, 419, 424. Amal, Exp., 1099. Amison v. Smith, 141, 298, 308, 313, 314, 315, 324, 326. Arnold, Se, 719. V. Amoldj 316, 949, 990. V. Bainbrigge, 871. V. Cheque Bank, 76, 1023. V. Mayor of Poole, 7, 513, 514, 792. V. Eevoult, 489. V. Woodhams, 486. Amot's case, 775. Amot ». Briscoe, 318. Amott V. Eedfem, 953. Amsby v. Woodward, 583. Arris v. Stukeley, 73. Arthur, Se, 596, 606. V. Barton, 448. ArundeU v. BeU, 971. V. Phipps, 966. Ash V. Pouppeville, 763. Ashbee v. Pidduck, 374. Ashbumer v. SeweU, 720, 721. Ashbuiy v. Watson, 522. Ashbury Railway Carriage Co. v. Eiche, 192, 507, 508. Ashby V. Asbbv, 1085. V. Day, 1079. V. James, 101, 767. Ashcroft V. Crow Colliery Co., 597, 600. 1). Morria, 230. Ashdown v. Ingamells, 908, 1094. Ashendon v. London & B. Ey., 604. Ashfield V. Ashfleld, 471. Ashforth v. Eedford, 173. Ashley's case, 324. Ashley v. Pooock, 139. Aahlin v. Lee, 842, 862. Ashling V. Boon, 778. Ashmole ». Wainwright, 81, 352. Ashton V. Corrigan, 964. v. Treestun, 797. V. Stock, 75, 1040. Ashworth v. Munn, 956. Asiatic Bank Co., Se, 508, 521. Askew V. Thompson, 966. Aspden v. Seddon, 1049. Asphaltic Co., Se, 1011. Aaprey v. Levy, 59. Astey V. Emery, 221. Astle V. Wright, 53. Astley V. Gurney, 881. V. Eeynolds, 77, 745. V. Weldon, 938, 941. Astrup, Hxp., 746. Athenaeum Asa. v. Pooley, 1012. Atherfold v. Beard, 649. Atkins V, Arcedeckne, 384. V. BanweU, 69, 536. V. Farr, 658. V. Owen, 97. V. Tredgold, 863. V. Wardle, 423, 432, 511, 617. Atkinson v. Baynton, 544. V. BeU, 222. V. Bradford B. &., 848. V. Braybrooke, 945, 953. V. Coteaworth, 428. V. Denby, 79, 669. V. ElKott, 880. 1). Hawdon, 701, 772. V. Eitohie, 598, 612, 615. V. Settree, 644. V. Smith, 570. Atkyns v. Kinnier, 636, 638. V. Pearce, 497, 498. Atlantic Mutual Ins. v. Huth, 450. Atlee 1), Backhouse, 73, 77, 78, 352, 353, 543. Attenborough v. Mackenzie, 787. i>. St. Katharine Docks, 327. Att.-Gen. v. College of Physicians, 642. V. Davy, 519. V. Piahmongers' Co., 834. V. Gaskill, 514, 517. V. Great Eastern Ey., 507, 609. V. Great Northern Ey., 508. 1). Guano Co., 1062. V. Leicester, 782. V. Nethercote, 952. f . Newcastle, 506. V. Eay, 284. V. TomUne, 270. Attorneys Act, £e, 633. Attwater, Hxp., 1093. Attwood V. Emery, 729. V. Munnings, 394. V. SeUar, 65, 177. v. Small, 313, 316. «. Taylor, 940, 944, 946, 957. Attwooll V. AttwooU, 764. Atwood V. Chichester, 478, 479. V. Maude, 53. Aubert v. Gray, 616. XIV TABLE OF CASES. Augers ». Keen, 695. August, Tte, 177, 450. Aulton V. Atiiiis, 997. V. Koberts, 73. Auriol V. Mills, 200. Austerberry v. Oldham, 1039, 1049, 1063. Austin V. Bethnal Green, 512, 513. V. MUls, 105, 813. Australian Clipper Co. v. Maunsey, 610. Australian Mail Co. v. Marzetti, 512. Australian Nav. v. Morse, 450. Aveline v. Wiisson, 113, 203. A.Yeij V. Bowden, 753. V. Langford, 636, 639. V. White, 274. Ayerst v. Jenkins, 660, 676. Ayles V. Cox, 718. Aylesford i>. Morris, 354, 355, 356. Aylett V. Ashton, 484, 994. AylofEe v. Scrimpshire, 799. Ayr Harbour v. Oswald, 507. Ayre's case, 319. AjTey V. Davenport, 808. Azemar v. Casella, 338. Babbage v. Conlbum, 821. Baboock v. Lawson, 327. Bach V. Owen, 250. Backhouse v. Charlton, 454. D. MeUor, 730. V. Eipley, 169. Badoock, He, 211, 272. Badeley v. Consolidated Bank, 137, 376, 383, 452, 453. V. Vigurs, 1057. Baglehole v. Walters, 300, 301. BagnaU «'. Carlton, 299, 304, 359, 411. Bagot V. Easton, 321. V. Williams, 807. Bagueley «. Hawley, 332. Bahia and San Francisco By., £e, 1013, 1035. Bahin v. Hughes, 62. Baildon v. Walton, 857. Bailey's Trusts, 137. Bailey v. Bailey, 107, 108. V. BidweU, 628. V. Bodenham, 774. V. Croft, 532. 4). Finch, 838, 869, 875, 877. V. Harris, 622. V. Johnson, 879. V. Maoaulay, 40. V. Piper, 993. Bailey v. Sweeting, 223, 225, 226, 233. V. Wilkins, 39. BaiUie v. Moore, 758. Baily, JExp., 26. V. De Crespigny, 593, 606, 612, 1053, 1061. Bain v. Cooper, 797, 802. V. Fothergm, 925. V. Kirk, 552. Baiubridge v. Firmstone, 534. V. Pickering, 475. V. Wade, 181. Baiubrigge v. Brown, 359. Baines v. Ewing, 447. V. Geary, 638. «'. Swainson, 435. Baird's case, 1084. Baird v. Fortune, 179. V. WiUs, 460. Baker's case, 472. Baker, Hxp., 562. , Se, 834, 836, 850. V. Baker, 503. V. Cartwright, 300. V. Dening, 236. V. Dewey, 778. V. GreenhiU, 66. V. Heard, 98, 101. V. Hedgeoock, 638. V. Holfezapffel, 598. V. Nottingham Bank, 1035. V. Paine, 270. V. Painter, 798. V. Sampson, 496. V. Smith, 546. ». Townsend, 628. V. Walker, 541, 768, 770. V. White, 658. V. Yorkshire Fire Ass., 159, 237, 816. Balbimie, Se, 670. Baldey v. Parker, 222, 223, 242, 243, 247. Baldwin ». London C. &D. Ry., 922. ». Useful Knowledge Soc., 968. Balfour v. Cooper, 966. V. Ernest, 520. V. Sea Fire Ass., 3, 541. Ball, JSzp., 71. V. DunsterviUe, 113. V. Storie, 157, 270. V. Warwick, 630. Ballard v. Marsden, 96, 878. V. Shute, 949. Bally V. WeUs, 1046, 1049. Bahnanno v. Lumley, 994. Bamfield v. Tapper, 868. Bamford v. Shuttleworth, 94, 783. Bampton v. Paulin, 208. TABLE OF CASES. XV Banbury v. Lisset, S53. Banco de Portugal v. Waddell, 371, 896. Bangor, Bishop of v. Parry, 1055. Banister, Re, 302, 318, 718, 981. Bank of Australasia v. Harding, 814. V. Nias, 109, UO, 111, 814. Bank of England v. Vagliano, 76, 363, 1018, 1020. Bank of Hindostan, Ee, 945. V. Alison, 286. V. Smith, 697, 698. Bank of Ireland i>. Evans' Charities, 518. Bank of N. S. Wales v. O'Connor, 740. Bank of Scotland v. Dominion Bank, ■783. Bankart v. Bowers, 570. Banks, Hxp., 1105. V. Crossland, 218. Banner, Exp., 141, 440, 544, 812. V. Berridge, 834, 854. V. Lowe, 943. Bannister v. Breslauer, 418. Bannerman v. White, 335, 337. Banque Jacques Cartier v. Banque d'Epargue, 391, 392. Barber v. Backhouse, 647. V. Brown, 84. V. Callow, 220. V. Eox, 205, 543. V. Gregson, 484. V. Lamb, 109, 807, 814. V. Maokrell, 945. • V. Meyerstein, 1028, 1029. V. Pott, 82. Barclay v. Messenger, 726, 727. V. Eaine, 1043. Barden v. Keyerberg, 489. Bardwell v. Lydall, 789. Barfoot v. GoodaU, 457. Baring v. Corrie, 426, 427, 434, 436. !). Stanton, 410. Barker's Estate, Re, 531. Barker ». Eirt, 104. V. Cox, 994. V. Furlong, 443. V. Hodgson, 614. V. Janson, 283, 286, 654. ». Keate, 546. ». Richardson, 802. V. St. Quintin, 794. V. Stone, 118. ». Wiudle, 575. Barkworth v. Young, 146, 225, 226, 235, 617, 618. Barlow's Will, Re, 604. Barlow v. Teal, 583, 733. Barlowe v. Browne, 93, 96. Barnard, Re, 422, 465. Bamed'B Banking Co., Re, 117, 606, 608, 619. Barnes v. Brathwaite, 81. V. Toye, 476. V. Wood, 993, 994. Bamett's case, 882, 883. Bamett, Exp., 868, 881. V. Bouch, 445. i>. King, 888. V. London & N. W. Ey., 466. V. South London Tram. Co., 319. Bamsley v. Taylor, 48. Baron v. Husband, 93. Barough v. White, 742. Barr v. Gibson, 286, 595. Barrell, Exp., 88. V. Truesell, 210. Barret t). Blagrave, 960. V. Glubb, 625. Barrett, Exp., 876. V. Hartley, 366. V. JeTiaj, 345. Barrow's case, 775, 951. Barrow, Exp., 638. V. Amaud, 912. V. Dyster, 164, 167, 441. V. Isaacs, 198, 312, 556, 979. Barrow Investment Co., Re, 774. Barry, Exp., 1101. Barter, Exp., 1093, 1097. Bartholomew v. Markwiok, 46. Bartlett, Re, 308. • V. Hodgson, 198. V. Pentland, 167, 446, 784. V. Pickersgiil, 240. ». Purnell, 238. V. Vinor, 621. V. Wells, 470. Bartley v. Hodges, 895. Barton ». Fitzgerald, 188, 189, 190, 195. V. Gainer, 1002. V. London & N. W. Ry., 1073, 1085. V. North Staffs. Ry., 838, 1073. Bartrum v. Caddy, 787. Barwick v. Buba, 753. V. EngUsh J. S. Bank, 94, 299, 318_, 319. Barwioke v. Reade, 625. Barwis, Exp., 888. Baskcomb v. Beckwith, 281. Bass, Exp., 741. Bassett v. Bassett, 686. Bastifell v. Lloyd, 600. Bastin v. BidweU, 667, 568, 748. Batard v. Hawes, 61. Bate V. Payne, 56. Bateman's case, 790. XVI TABLE OF CASES. Bateman's Trusts, 465. Bateman v. Mid-Wales Ey,, 611. V. Phillips, 230, 422. V. Pinder, 856. v. Ross, 662. Bates, Exp., 888. V. Hewitt, 339, 340, 341. V. Townley, 68, 104, 819. Batesou v. Gosling, 800, 801. Bath's case, 507. Bath, Exp., 954. Bathe v. Taylor, 704. Batthyany v. "WaUord, 1076. Batson v. Newman, 660, 672. Batten, Se, 369, 698. Batterhury v. Vyse, 668. Battley v. FauUmer, 828, 846. Batty V. Marriott, 650. Baum, Exp., 629, 891. Baumann v. James, 149, 160, 227. BaumvoU Manufaotur v. Gilohrest, 447. Baxeudale v. Bennett, 118. V. Harvey, 344. V. London C. & D. Ey., 931. V. Seale, 266, 373, 285. Baxter v. Brown, 217. V. Burfield, 1083. V. ConoUy, 542, 971. V. Gray, 3. 1!. Nurse, 585. V. Portsmouth, 603. Bayley, Exp., 92. V. Homan, 639, 757. i>. WilMns, 438. BaylifiEe v. Butterworth, 167, 437. BayUs v. Dineley, 466, 468, 471. Bayne v. Walker, 610. Bayaton v. Morgan, 1058. Bazeley v. Eorder, 41, 497, 498. Beak v. Beak, 1003, 1004, 1078. Beale, Se, 462. Bealey v. Greenslade, 8S8. Beardman ii. Wilson, 1052. Beam v. Webb, 490. Beasley v. Koney, 485, 487. Beattie v. Ebury, 4, 293, 432, 623. Beauchamp v. Winn, 289. Beaufort v. Glynn, 962. Beaumont v. Bramley, 270, 271, 274. V. Brengeri, 245. V. Dukes, 295, 981. V. Greathead, 763, 780, 908, 910. V. Reeve, 536, 637, 660. Beavan v. M'Donnell, 502. Beaver v. Lane, 489. Beazley v. Soares, 972. Bechervaise v. Lewis, 872, 876. Beck's case, 19. Beck V. Pierce, 844, 866, 1068, 1069. Beckett v. Addyman, 30, 61, 380, 1079. V. Tasker, 481. V. Tower Assets Co., 191, 777. Beckham t,. Drake, 145, 370, 412, 413, 420, 421, 422, 1094. Beckwith v. Bullen, 446. Beoquet v. MacCarthy, 110. Beddall v. Maitland, 871. Bedford v. DeaMn, 771. Bedford Ry. v. Stanley, 524. Bedfort v. British Musexmi, 987. Bedow's case, 121. Beech v. Jones, 40, 931. Beecham v. Smith, 377, 378. Beechey v. Brown, 300. Beeching v. Westbrook, 100. Beeley v. Wingfield, 628. Beer v. London Hotel Co., 230. V. Walker, 336. Beeston v. Beeston, 652, 676. V. Collyer, 218, 585. Beetham, Ee, 269. Begbie v. Crook, 119. V. Phosphate Manure Co., 90, 534, 668. Behn v. Bumess, 338, 674. Beioley v. Carter, 716. Belding v. Read, 974. Beldon v. Campbell, 448. Belfour v. Weston, 698. Bell's case, 760. Bell, Be, 837. V. Antwerp Line, 34, 734. V. Banks, 805, 808. V. Buckley, 772, 788, 790. V. Gardiner, 83, 86, 263. V. Holtby, 716. V. Ingestre, 161. V. Nixon, 398. V. Reid, 465. V. Stocker, 1067, 1069. Bellairs v. BeUairs, 659. V. Tucker, 298. Bellamy, Re, 782, 785. i>. Davey, 1029, 1096. V. Debenham, 15, 30, 720. BeUhouse v. Mellor, 730. BeUlngham v. Clark, 376. BeUringer v. Blagrave, 982. Belshaw v. Bush, 768, 770, 786, 799. Belworth v. Hassell, 718. Bendix v. Wakeman, 488, 1066. Benecke i>. Prost, 409. Benham v. Broadhurst, 369. V. United Guarantee Co., 349. Beningiield v. Baxter, 358. Beularig, The, 61. Bennett v. Brumfitt, 236. TABLE OF CASES. XVU Bennett v. Daniel, 134. V. Gramjee, 1095. V. Neale, 135. Bensley v. Bignold, 622, 6i5. Benson v. Lamb, 727. Bent V. Wakefield Bank, 12, 541. Bentall v. Burn, 248. Bentley, Ex p., 774. V. GrifBn, 499. 11. Maokay, 266, 270, 273, 532. V. Manchester By., 143, 821. V. Vilmont, 329. Benwell, Exp., 1105. V. Inns, 636, 037, 937. Benyon v. Nettlefold, 660, 672. Berdan v. Greenwood, 763. Beresford v. Browning, 375. Bergheim v. Blaenavon Iron Co., 933, 940. V. Great Eastern Ey., 605. Bergmanu v. Maomillan, 1000. Berkeley v. Elderkin, 105. V. Hardy, 368, 388. Berridge v. Berridge, 60, 384. ■ V. Man Ins., 654. Berrington v. Phillips, 950. Berry v. Da Costa, 903. Berthon v. Cartwright, 368. Berwick v. Horsfall, 185, 394. V. Oswald, 692. Besant, &e, 663. . V. Besant, 662. V. Cross, 155, 156. V. Wood, 492, 663, 979. Besley v. Besley, 199, 284, 286. Bessela v. Stern, 210. Best's Settlement, 272. Best ». Hamand, 717, 982. V. Hill, 867. Beswick v. Swindells, 123, 197, 612. Bethel], He, 840, 843, 855. V. Clarke, 1096. Betteley v. Stainsby, 890. Betterbee v. Davis, 745. Bettini v. Gye, 566, 567. Betts V. Burch, 936, 938, 942. V. Gibbins, 39, 40, 408. V. Kimpton, 1070. Beulah Park Estate, Re, 946, 956. Bevan, Ex p., 967. V. Delahay, 169. V. Hill, 706. Bevans v. Rees, 745, 746. Beverley's case, 505. Beverley v. Lincoln Gas Co., 46, 612, 615. Bevins v. Hulme, 784. Beyer v. Adams, 662. Beyfus and Masters, Re, 718, 721. Beynon v. Cook, 355, 357, 955. L. Beynon v. Godden, 450. Bhugwandass v, Netherlands India Ins., 342. Bianohi v. Nash, 46. Biekerdike v. Bollman, 662. Biokertou v. Burrell, 429. ■ V. Walker, 779, 1012. Biokford v. Parson, 1040, 1042, 1058. Bidder v. Bridges, 765. Biddle v. Bond, 443. ■ ». Levy, 43. Biddlecombe v. Bond, 188. Bldgood V. Way, 488, 489. Bidwell V. Catton, 644. Biederman ». Stone, 659. Biffen v. Bignell, 496, 496. Bigg*. Strong, 391. v. Whisking, 223, 248. Bigge V. Parkinson, 334, 337. Biggs V. Bree, 784. V. Lawrence, 664. Bignold, Re, 966. 1). Waterhouse, 457. Bilbie v. Lumley, 86. Bilborough v. Holmes, 686. Bill V. Bament, 226, 241, 247, 248. V. Cureton, 531. BiUing V. Southee, 78. Bindley v. MuUoney, 661. Bingham v. Bingham, 284. V. Stanley, 662, 653. Binksf. Eokeby, 720, 991. Binnington v. Wallis, 660. Bians v. Eisher, 756. Birch, Re, 560, 834. V. Earl of Liverpool, 220. V. Stevenson, 934. Birchall, Re, 119. Bird's Trusts, 276. Bird V. Barstow, 482. ■ V. Boulter, 238, 239. V. Brown, 390. V. Gammon, 207. V. Peagrum, 488. . V. Randall, 373, 936. Birkenhead Ey. v. Pilcher, 471. Birkley v. Presgrave, 65. Birkmyr v. Darnell, 206. Birks v. Trippet, 559. Birmingham Bank, Ex p., 399, 402. Birmingham Canal Co. «). Cartwright, 212. Birmingham Estates Co. v. Smith, 870. Birmingham Gas Co. v. Ratcliff, 43. Birmingham Land Co. v. L. & N. W. Ey., 971. Birrellv. Dryer, 172, 188, 194, 277. Bishop, Exp., 58, 68, 946. V. Balkis Co., 210, 310, 318. h xvm TABLE OF CASES. Bishop V. Church, 876. V. Curtis, 1074. V. Kitchin, 635. V. Rowe, 771. V. Taylor, 556, 1061. Biasell v. Jones, 669. Bissioks V. Bath Coll. Co., 80. Bissill V. Williamson, 815. Bittleston v. Timmis, 880. Bittlestone r. Cooper, 97. Bize V. Diokason, 83. Blaohford, Re, 835. V. Preston, 624. Black's case, 883. Black V. Homersham, 967. Blackhum v. Scholes, 398, 421. V. Smith, 91, 326. — — !). Vigors, 340. Blackburn Building Soc. v. Cunhffe, 57, 522. Blackett v. Bates, 825, 969, 977. V. Royal Exchange Ass., 169. Blackie v. Bidding, 707. Blacklow V. Laws, 726. Blackmore v. Yates, 511. Blackstone v. Wilson, 670. Blades v. Free, 31, 406, 493, 494. Blagden v. Bradbear, 223, 228. Blair v. Bromley, 456, 846. ■ V. Ormond, 842, 859, 861. Blake's case, 131, 692, 756. Blake, Exp., 1100. V. Albion Ass., 72, 318. Blakeley Ordnance Co., Re, 1012. Blakemore, Ex p., 888. Blakesley v. Smallwood, 877. Blakey v. Dinsdale, 250. i\ Latham, 107. Blanohard, Re, 1102. Blanchet v. Powell's Coll., 1029. Blanchett, Exp., 1000. Blaney v. Heudrick, 946. Bleaden i>. Charles, 40, 69. Bleakley v. Smith, 234. Blenkinsopp v. Clayton, 246, 249. Blewitt, /. g., 236. Blight V. Page, 614. Bloomer f. Bernstein, 571. 11. Spittle, 271. Blore V. Ashby, 409. V. Sutton, 231, 257, 986. Blount V. Burrow, 1003. Blower v. Great Western Ry., 604. Bloxam's case, 22. Bloxam v. Sanders, 247, 646, 1096. Bloxsome v. Williams, 32. Bluck V. Capstick, 53. V. Grompertz, 236, 705. Blumfield's case, 808. Blundell, Re, 403. BlundeU v. Brettargh, 822. Blyth V. Birmingham Waterworks, ,093. V. Carpenter, 914. V. FJadgate, 62, 380, 454, 458, 809. V. Smith, 931. Boaler v. Mayor, 805. Boast 1). Firth, 577, 607. Boatwright v. Boatwright, 835, 836, 847, 862. Bobbett V. Pinkett, 76, 1022. Boddington, Re, 191. V. Castelli, 1103. V. Clariat, 491. V. Schlencker, 773. Boden v. French, 173, 183, 397. Bodenham «'. Purchas, 790. Bodger ». Arch, 859, 866. Bodman, Re, 1034. Boehm, I.g., 190. V. Wood, 726, 727. Boileau v. Rutlin, 812. Bold V. Hutchinson, 211, 272. V. Rayner, 18, 173, 189. Bolingbroke v. Kerr, 1085. BoUand v. Nash, 880. BoUond, Exp., 528, 1106. Bolton V. Bp. Carhsle, 697, 702. V. Bolton, 469. V. Buckenham, 693, 799. V. Lambert, 147, 393. I/. Lancashire and Yorkshire Ry., 261. V. Madden, 533, 545. V. Salmon, 694. V. Tomlin, 151, 203, 204, 219. Bonar v. Maodonald, 695. Bond V. Gribson, 457. v. Rosling, 204. V. Walford, 682, 684. Bone v. Eckless, 672, 676. BonelH's Tel. Co., Re, 399, 521. Bennett v. Sadler, 296. Bonnewell v. Jenkins, 147. Bonomi v. Backhouse, 846, 904. Bonser v. Cox, 380, 693. Booker, Re, 456. Boone r. Eyre, 666, 567. Boor, Re, 143. Boorman r. Nash, 912, 1096. Boot r. Wilson, 1058. Booth 1'. Hutchinson, 881. ''• Leycester, 815, 945. V. Pollard, 970. V. Smith, 59. Boraston ». Green, 169. Borell r. Daun, 535. Borradaile r. Brunton, 916. Berries v. Hutchinson, 916. TABLE OF CASES. XIX Borries v. Imperial Ottoman Bani, 425, 427. Borrowman v. Drayton, 713. V. Free, 715, 742, 7.il. Bos V. Helsham, 88, 824. Bosanquet i). Wray, 791. Boatock V. Jardine, 87. V. North Staffs. Ey., 509. Boston Fishing Co. v. Ansell, 410. Boswell V. Coaks, 305, 306. Bottle v. Knocker, 531. Bottomley's case, 399, 403. Bottomley v. Fisher, 423. V. Forbes, 168. i>. NuttaU, 417, 768, 769, 771. BottreU v. Summers, 778. Boulter, Re, 190, 234, 270, 271. Boulton V. Dobree, 463. V. Hillersden, 390. • V. Jones, 20, 401, 429, 999. V. Prentice, 494. BourdiUon v Roche, 456, 785. Bourdin v. G-reenwood, 857. Bourne v. Gathffe, 593, 736. V. Seymour, 712. Bournemouth Com. v. Watts, 515. Boursot V. Savage, 993. Bousfield v. Barnes, 654. V. Creswell, 445. V. Wilson, 675. Boussmaker, Exp., 464, 648. Boutts V. EUis, 1003. Bowdell V. Parsons, 581, 749. Bowden, Re, 835. Bowen v. Hall, 368. V. Morris, 417. V. Owen, 745, 746. Bower ». Cooper, 718. Bowerbank v. Monteiro, 155. Bowes, Re, 1053, 1082. V.Foster, 159, 776. V. Heaps, 356. 1). Law, 1062. V. Shand, 173, 185, 336, 714. Bowker v. Burdekin, 115. V. Evans, 1076. Bowlby V. BeU, 222. Bowles V. Orr, 110. Bowman v. Hyland, 584. V. Nichol, 704. Bowring v. Shepherd, 438. Bowyear v. Pawson, 871. ». Woodman, 831. Boyd V. Brooks, 1088. V. Hind, 162, 539, 739. V. Lett, 570. • V. Moyle, 9. V. Robins, 889. V. Siffikin, 572. Boydell v. Drummond, 218, 228, 852. Boyle's case, 26. Boys, Re, 791. V. Ayerst, 237. Box V. Day, 589, 934. Boxall V. BoxaU, 1073. Boyse, Re, 662, 843. Boyter v. Dodsworth, 73. Bozon V. Farlow, 971. Brace v. Wehnert, 969. Braoegirdle v. Heald, 218, 219. Braoewell v. Williams, 543, 544. Bradbumi). Foley, 166, 169. Bradburne v. Botfleld, 378, 381, 382. Bradbury v. Emana, 560. V. Morgan, 1079. Braddick v. Thompson, 692. Bradford Bank v. Briggs, 1007. Bradford v. Symondson, 92, 283, 342. • V. Williams, 574. V. Young, 176. Bradlaugh v. Newdigate, 630, 632. Bradley v. Bardsley, 704. V. Benjamin, 580. V. Holdsworth, 217, 218. V. James, 837, 860. Bradshaw v. Beard, 57, 474. V. Bradshaw, 669, 670. V. Lancashire & Torkshire Ry., 1075, 1076, 1077. Brady ». Oastler, 899. 1). Todd, 396. Brampton & Longton Ry., Re, 524. Bramwell v. Eglinton, 770. V. Lacy, 1048. Branch v. Ewington, 474, 576. Brandao v. Barnett, 166. Brandon v. Curling, 613, 616, 648. V. McHenry, 141. 1). Nesbitt, 648. V. Newington, 740. . V. Scott, 779, 780. Brandram v. Wharton, 858. Brandt v. Heatig, 1074. V. Lawrence, 714. Brangwin v. Perrot, 935. Branscombe v. Scarbrough, 123. Branthwait v. Cornwallis, 805. Brashford v. Buckingham, 488. Brassington v. Ault, 1085. Braun v. Weller, 140. Brauustein v. Accidental Death Ins., 555, 820. Brayshaw v. Eaton, 475. Breadalbanes. Chandos, 272. Brecknock Nav. v. Pritchard, 699. Breokon v. Smith, 103, 104. Bree v. Holbeck, 89. Breese ». Owens, 813. Brent's case, 546. Breton's Estate, Re, 1002. 62 XX TABLE OF CASES. Brett's case, 22. Brett, Exp., 295. V. Clowser, 88. V. Jackson, 889. Brettel v. Williams, 229, 451, 456. Brewer v. Broadwood, 722. V. Brown, 281, 990. V. Bew, 1094. V. Sparrow, 75, 393. Brewster v. Kitohin, 679, 1039, 1050, 1051. Brice 4). Bannister, 998, 999, 1005, 1006, 1009, 1012. • V. Stokes, 780. Briddon v. Great Northern Ky., 693. Bridge v. Cage, 541. Bridger's case, 19. Bridger v. Savage, 652, 675. Bridges ». Berry, 771. V. Fisher, 666, 671. v. Garrett, 773, 783, 786, 1103. V. Potts, S82. Bridgman v. Dean, 100. Brier v. Evison, 403. Brigg's case, 317, 323. Briggs and Spicer, Se, 716. Briggs V. Calverley, 743. V. Wflson, 860, 866. Bright's Trusts, 1008. Bright-Smith, Re, 190. Brighty v. Norton, 729. Brigstocke, Exp., 742. . V. Smith, 853. Brill V. Crick, 155. Brindley «. Cilgwyn Co., 1096. Bringloe v. Goodson, 1055. Brinsmead ». Harrison, 807, 808 . Brisbane v. Dacres, 85. Bristol, Dean of v. Jones, 569. Bristol ff. Wilsmore, 295. Bristol Bank v. Midland Ry., 1028. Bristol Bread Co. i. Maggs, 15, 29, 30, 234. Bristow V. Eastman, 470. . V. Towers, 648. V. Whitmore, 394, 448. Britain v. Eossiter, 218, 251, 255, 256, 259. Britannia Eire Ass., Re, 371. British Columbia Mill Co. v. Nettle- ship, 902. British Empire Ass. v. Browne, 119. British Empire Co. ■». Somes, 43. British Equitable Ins. i/. G. W. Ey., 312, 346, 1031. British Farmers' Co.. Re, 774. British India Co. c. Inland Kevenue, 1005, 1034. British Linen Co. v. Drummond, 832. British Mutual Bank v. Chamwood Ry., 318, 319. British Provident Life Ins., Re, 522. British Tel. Co. v. Colson, 23, 24, 25. British Wagon Co. i>. Lea, 20, 999. Brittain i>. Lloyd, 38, 56, 69. Britten v. Hughes, 668, 670. Brittlebank v. Goodwin, 834. Brocklebank, Exp., 476. Brockwell's case, 318, 319, 320. Brockwell v. BuUook, 503. Broderick, Exp., 259. Brodie v. Howard, 451. V. St. Paul, 151, 257. Brogden v. Marriott, 557. V. Metrop. Ry., 15, 21, 23, 24, 159. Bromage v. Lloyd, 1018, 1078. Bromley v. Brunton, 1003. V. Smith, 355. Brook V. Hook, 154, 392, 627. Brooke v. Enderby, 790. V. Haymes, 56, 795. ■ V. Hewitt, 1097. V. Rounthwaite, 297. V. White, 551. Brooker i). Scott, 473. V. Wood, 664. Brookes v. Drysdale, 196. Brookman's Trusts, 586, 587, 618. Brookman v. Rothschild, 430. Brooks, Ex p., 1101, 1102. r. Blackburn Bg. Soc, 509, 510. V. Beckett, 100. V. Jennings, 198. V. Mitchell, 723, 742. V. Stuart, 795. V. Sutton, 795. Broom v. HaU, 932. Broome v. Monck, 1080. Brothwick v. Walton, 34. Broughton v. Manchester Water- works, 511. Brown, Re, 86. V. Ackroyd, 498. V. Adams, 791. i\ Andrew, 398. V. Brine, 545. V. Byers, 454, 459. V. Byrne, 164, 168, 172. V. De Wintou, 363. V. Edgington, 333. V. Great Eastern Ry., 560. V. Great Western Ry., 82. 4>. Harraden, 527. V. Hodgson, 67. V. Howard, 845. V. Johnson, 573. V. Kough, 440. TABLE OF CASES. XXI Brown v. Langley, 149, 156. V, Mayor of London, 613. V. Mckinally, 82. V. MuUer, 687, 751, 912. V. Overbury, 95, 821. V. PoweU Coal Co., 447. V. Boyal Ina., 588, 599, 617. V. Shuker, 128. V. Symonds, 685. V. Tanner, 575. V. Tombs, 401. Browne and "Wingrove, Re, 887, 954. V. Carr, 694. V. Hare, 2. V. Joddrell, 601. ■ V. Knill, 698. V. McCUntook, 324. V. Powell, 80. -V. Price, 41, 909. ». Savage, 1010. V. Warner, 204. Browning v. Morris, 676. V. Paris, 866. V. Prov. Ins. of Canada, 446. V. Stallard, 207. B. Wright, 190, 195. Brownlie v. Campbell, 263, 302, 303, 308, 309, 310, 311, 312. Bruce v. Hunter, 957. ■ V. Jones, 654. Brunsden v. Humphrey, 811. Brunswick v. Crowl, 641. «j. King of Hanover, 461. Brunton v. Electrical Engineering Corp., 1034. Bryan v. Child, 134. Bryant and Bamingham, Se, 716. V. Busk, 717, 979. V. Flight, 3. V. Herbert, 910. V. Richardson, 473. Brydges v. Lewis, 1042. V. Walford, 83. Bryson v. Whitehead, 635, 972. Buocleuch D. Metrop. Bd., 903. Buchanan v. Findlay, 74, 92. V. Morgan, 950. f. Rucker, 110. Buck V. Hurst, 99, 103. V. Robson, 144, 1005. Buokland v. HaE, 979. V. Papillon, 1001, 1044, 1045. Buckle V. Fredericks, 1062. V. Knoop, 167, 168. V. Lordonny, 821. V. Mitchell, 531, 536. Buckley, Exp., 454, 455. Buckmaster v. Harrop, 260, 1080. V. Russell, 854, 865. Buckworth v. Simpson, 1042. Budgett V. Binnington, 601. Buenos Ayres Ry. v. G-. N. Ry. of Buenos Ayres, 177. Bufe V. Turner, 344. Bull V. Price, 47, 444. BuUen v. Denning, 196. V. Sharp, 451. BuUer v. Harrison, 94. D. Plunket, 1009. Bullock ». Caird, 372. i>. Dommitt, 698. Bulmer, Ex p., 677. V. Korris, 217. Bunn V. Uuy, 637. Bunuey v. Poyntz, 769, 770. Bunting v. Sargent, 865. Burbridge v. Manners, 723. Burch V. Leake, 479. Burchell v. Clark, 120, 191, 274. Burchfield v. Moore, 89, 700, 701, 704. Burden, Exp., 7bS, 939. Biirdiok v. Garriok, 834, 837, 838, 847, 848, 945, 968. Burges v. Wiokham, 153, 157, 180. Burgess's case, 319, 328. Burgess v. Eve, 30, 348, 682, 1079. Burgh V. Legge, 101. Burghart v. Angerstein, 475. i>. Hall, 474. Burke v. Jones, 836. V. South Eastern Ry., 13. Burkinshaw v. Nicolls, 776. Burkitt V. Blanshard, 860. Burleigh v. Stott, 863. Burlinson v. Hall, 999. Burls V. Smith, 459. Burmester v. Hogarth, 103. V. Norris, 459. Burnt). Boulton, 788, 791, 792, 860. • — - V. Carvalho, 1004. V. Miller, 42, 50. V. Morris, 75. Bumaby v. Equitable Reversion Soc, 469. Bumand v. Rhodocanaohi, 65, 654. Burnard v. Haggis, 470. Bumby v. BoUett, 334. Burnell v. Brown, 720. Burnes v. PenneU, 320. Burnett v. Lynch, 1059. Burnley Coop. Soc. v. Casson, 474. Burns v. Bryan, 378. Burrell, Exp., 294, 669. V. Jones, 416. Burrett v. Booty, 496. Burroughs v. Moss, 488, 874. Burrow v. Scammell, 279, 983, 993. Burrowes v. Lock, 4, 311. Burrows v. March Gas Co., 916. xxu TABLE OF CASES. Bureill v. Tanner, 178, 482. Burt V. Gray, 1052. V. Trueman, 1012. Burton V. Barclay, 1056. V. English, 65, 195, 603. V. Great Northern Ry., 27, 30. V. Pinkerton, 52, 678. . V. Sturgeon, 490. Bushell f. Beavan, 209, 210, 909. V. Wheeler, 244. Busk V. Spenoe, 573. V. "Walsh, 672, 673. Butcher v. Stewart, 181, 207, 644. Bute V. Kyder, 190. V. Thompson, 589, '596, 617. Butler V. Baker, 118. V. Butler, 62, 479, 491, 1066, 1067, 1070. v. Cumpston, 483, 486. . •». Hohson, 1106. V. Mulvihill, 505. V. Wearing, 74. V. Wigge, 196. Buttemere t>. Hayes, 212. Butterfield v. Heath, 546. Button V. Thompson, 62, Buxton V. Bedal, 221. V. Cornish, 166. V. Lister, 965. V. Rust, 227, 233. Bwloh-y-Plwm Co. v. Baynes, 322. Bygrave v. Metrop. Board, 14. Byrd V. N'unn, 252. Byrne v. Schiller, 91. V. Van Tienhoven, 24, 28. Byrom v, Thompson, 704. CahaUero v. Henty, 303, 317, 727, 992. OabeU v. Vaughan, 372. Caddick v. Skidmore, 217. Cadman v. Homer, 981. Caerleon Co. v. Hughes, 816. Cagoi". Acton, 123, 1066, 1067. CahiU V. CahiU, 479, 492. V. Dawson, 403. V. London & N. W. Ry. Co., 44. Caine v. Coulton, 743, 744, 773. ■ V. Horsfall, 187. Gaines v. Smith, 581, 750. Caird v. Moss, 79, 269, 270. Calaminus ii. Dowlais Iron Co., 588, 713. Caloraft 4). Roebuck, 991. Calder i>. Dobell, 415, 416, 419, 421. V. Rutherford, 374. Caldwell, Exp., 1101. Caledonian By. v. North British Ry . , 187. Calisher's case, 883. Calisher v. Forbes, 1006. Oalland v. Loyd, 73. Callander v. Hawkins, 748. CaUeuder v. Howard, 101, 766. V. Lagos, 894. t>. WaUingford, 62, 384. Calliaher v. Eisehoffshelm, 643. Callonel v. Briggs, 670. Callow V. Lawrence, 787. Calton ». Bragg, 945, 946. Calverley v. Williams, 266, 268. Calvert v. Baker, 101. Calye's case, 170. Camac v. Warriner, 333. Cambefort v. Chapman, 375, 768, 808. Camberwell Bg. Soc. v. HoUoway, 716, 719. Cambridge v. Dennis, 695. Cameron and Wells, Re, 646. V. Smith, 944, 946, 947, 948. Camidge v. Ailenby, 771. Caminada v. Hulton, 649, 651. Cammell c. Sewell, 110. Campanari v. Woodbum, 407. Campbell's case, 610. Campbell, Ex p., 1089. V. Christie, 699. *'. Fleming, 323. V. Graham, 877, 935. . V. Hicks, 425. V. Hooper, 504. . V. Im Thurn, 769. V. Jones, 665, 666. V. Lewis, 1038, 1043. V. BothweU, 384. r. Strangeways, 730, 732. Can r. Read, 782. Cane v. Chapman, 96. Canham v. Barry, 163, 592. ». Rust, 1048, 1058, 1069, 1074. Cann v. Cann, 290, 990. Cannam v. Farmer, 486. Cannan v. Brice, 622, 666. V. Reynolds, 811. f. Wood, 767. Canning v. Farquhar, 312, 347. Cannock r. Jones, 121, 197, 569. Cannon v. Smalley, 603. Cape Breton Co., Se, 369. Capel r. Sims Co., 299, 316, 319, 320, 526, 955. Caplen's Estate, Re, 531. Capper's case, 472. Capper o. Daudo, 560. V. Wallace, 574. TABLE OF CASES. Cappur ». Harris, 967. Card V. Hope, 624. Garden v. General Cemetery Co., 524. Cardigan v. Armitage, 196. CardweU v. Martin, 706. Carey v. Barrett, 539, 670. CargiU v. Bower, 320, 323. Cargo ex Argos, 460, 615. Cargo ex Laertes, 343. Caringtou v. "Wycombe, 509. Carisbrook, The, 601. Cariss V. Tattersall, 703, 704. Carlisle, Se, 824. Carlos V. Fancourt, 527, 553. Carlyon ». Trusoott, 781. Carmarthen Ky. v. Manchester and M. Ry., 773, 777. Carnegie v. Conner, 713. Carnes ». Nisbett, 634, 936. Carpenters). Buller, 131. V. Deen, 191. V. MarneD, 1102. V, Thornton, 107. Carr v. Edwards, 945. V. Hmchclifle, 427. V. Jackson, 419, 429. V. London & N. W. Ky., 4. V. Martinson, 95, 821. V. Wallachian Co., 683. Garrard v. Meek, 766. Carrington v. Roots, 214, 215, 251. Carter, Sxp., 1095, 1104, 1105. . Se, 851. ». Boehm, 300, 339. V. Carter, 851. V. Crick, 278, 337. V. Dean of Ely, 515, 519, 726. V. Dobell, 416. V. James, 812. V. Ring, 560. V. Scargill, 578. v. Silber, 469. V. Tonssaint, 246, 247. V. WhaUey, 454, 457. V. White, 59, 118, 363, 385, 563. V. WiUiams, 1064. • V. "Wormald, 757. Cartmell's case, 403. Gartwright v. Cartwright, 661. a. Hately, 93. Carus-Wilson, Se, 825. Caryalho v. Bum, 1103. Gary v. Dawson, 889. Case V. Barber, 759. ■ V. Davidson, 1062. Cassaboglou !;. Gibbs, 440, 919. Casseres v. Bell, 463. Casson V. Roberts, 87, 88. Castellain v. Preston, 63, 64, 658, 720. Castle V. Playford, 609. • V. Sworder, 245, 246. f. Wilkinson, 994. Castlegate Co. r. Dempsey, 601. Castling v. Aubert, 208. Castriquef. Imrie, 100, 109, 175. Caswell V. Coare, 918. Catesby's case, 733. Cathcart, Se, 603. Catling J). King, 146, 230, 252, 371. Cato V. Thompson, 316, 720, 991, 992. Caton J'. Caton, 211, 212, 234, 236, 267, 269. V. Rideout, 489. Catt». Tourle, 637, 951, 973, 1062. CatteraU v. Hindis, 426, 441, 784. Catton V. Bennett, 318. V. Simpson, 701. Caudell V. Shaw, 490. Gaughey». Gordon, 151, 1026. Cave V. Hastings, 149, 227. V. Mackenzie, 240. Cavendish v. Geaves, 875, 1011. Cavendish-Bentinck v. Eenn, 359. Cawthorn d. Cordrey, 218. Cayley v. Walpole, 15. Cazenove v. British Equit. Ass., 346. Central Ry. Venezuela v. Kisch, 297, 298, 317. Chadwick v. Maden, 413, 1001. Challinor, £xp., 529. Chalmers, :Exp., 572, 764, 1096. Chaloner v. Bolckow, 679. Chamberlain v. Napier, 176. ■ V. Stoneham, 541. V. Williamson, 606, 1083. Chambers v. Manchester and M. Ry. , 511. ■ 41. MiUer, 84, 762. Champion v. Plummer, 229. V. Short, 48. V. Terry, 707, 772. Chandelor v. Lopus, 6. Chandler v. VUett, 828, 839. ChaDnell v. Ditchbum, 865. Chanter ». Hopkins, 333, 336. V. Leese, 375, 381. Chapleo v. Brunswick Bg. Co. 94, 318, 509, 520. Chaplin v. Clarke, 19. ■ V. Rogers, 246. Chapman r. Beecham, 733. • V. Biggs, 483. V. Chapman, 192. ■ V. Cottrell, 33. . V. Great Western Ry,, 610, 736. f. Gwyther, 335, 585. XXIV TABLE OF CASES. Uhapman i>. Hicks, 740. V. Milvain, 367. V. Shepherd, 438. V. Shilhto, 316. 1). Speller, 86, 332. V. "Withers, 610. Uhappell, Se, 37. V. Comfort, 1026. V. North, 823. Chappie V. Cooper, 473, 474. V. Durston, 871. Charing Cross Bk., Ex p., 529. Charkieh, The, 462. Charles v. Blackwell, 396, 423, 773, 783, 1023. Charlesworth v. Holt, 662. Charlton v. Durham, 782. Charnley v. Grundy, 707. Charrington v. Laing, 133. Charters. Charter, 182. Chartered Bk. of India v. Dickson, 561, 742, 843. 'V. Netherlands India Steam Nav. Co., 602. Chasca, The, 603. Chasemore v. Turner, 853, 855. Chatenay v. Brazilian Tel. Co., 174, 176, 394, 738. Chater v. Becket, 252. Chatteris, Exp., 79. Chattock i>. MuUer, 240, 986. Chawner v. Cummings, 646. Cheale v. Kenward, 534, 967. Cheeseman, v. Exall, 332. Cheetham v. Ward, 799, 1088. Cherry v. Boultbee, 878. V. Col. Bk. of Australasia, 431, 523. V. Fleming, 113, 219, 220. V. Thompson, 752. Cheshire Lines Co. v, Lewis, 150, 190, 204. Chesman v. Nainby, 638. Chesterfield's Trusts, 958. Chesterfield v. Bolton, 698. V. Janssen, 354, 3o6, 357. Chesterfield Coll. v. Hawkins, 368, 369. Chesterman v. Lamb, 918. Chetham v. Hoare, 847. Chichester v. Hill, 76. Chifleriel, Me, 898, 993. Child D. Morley, 41. V. Stenning, 905, 926, 928. V. Thorley, 874. Childs V. Monins, 205, 1078, 1086. Chillinert). Chilliner, 124, 937, 938. Chilton V. Carrington, 740. China Steamship Co., Re, 1012. ■ V, Commercial Aes., 339. Chinery v. ViaU, 917. Chinnery v. Evans, 862. Chlnnook v. Ely, 148. V. Sainsbury, 404, 968. Chisman v. Count, 99. Chissum V. Dewes, 634, 972. Chorley v. Boloot, 642. Chowne v. Baylis, 72. Christiansborg, The, 815. Christie v. Barker, 59. ■ V. Borelly, 566. Christofferson v. Hawsen, 418. Christy r. Row, 61. Chubb V. Stretch, 1069. Church V. Imperial Gras Co., 512. Churoher v. Stringer, 943. ChurchiU, Re, 385. Churton v. Douglas, 972. Chynoweth's case, 325. Citizens' Bk. Louisiana v. Bk. New Orleans, 5, 1005. City of Mecca, The, 110. City Bank t). Barrow, 435. City Discount Co. v. McLean, 791. Clack 4). "Wood, 577. Clapham v. Langton, 181, 343. V. ShOlito, 315. Clarance v. Marshall, 72. Clare v. Lamb, 88, 284, 302. V. Maynard, 918. Claridge v. S. Staffs. Tram. Co., 610. Clark V. Alexander, 100, 767. V. Bulmer, 46. V. Clark, 358, 662. V. Cort, 875. V. CuUen, 135. • V. Hooper, 866. V. Hougham, 846, 865. «. Lazarus, 547. V. Metrop. Gas Co., 848, 1073. v. Piggott, 699. Clarke, Re, 664, 974. v. Abingdon, 936. V. Bickers, 375, 379. V. Birley, 27, 30, 693, 694. V. Bradlaugh, 732. V. Callow, 252. V. Cuckfield, 613. V. Dickson, 323, 325, 326. V. Fell, 867, 870. V. Grant, 158, 163, 254, 980. V. Price, 968. V. Ramuz, 988. V. Roche, 1023. V. Roystone, 170. V. Watson, 557. V. Westrope, 557, 612. V. Willott, 716. r. Wright, 646. r. Torke, 811. TABtB OF CASES. XXV Clarkson v. Henderson, 958, Clayf. Crofta, 181. ■ D. Yates, 47, 222, 678. Olaydon v. Green, 719. Clayton's case, 731, 787, 790, 793. Clayton v. Ashdown, 476. V. Gosling, 890. V. Gregson, 165, 172. V. Illingworth, 965. v. Josling, 843. V. Leech, 149, 279, 284, 286, 302. V. Wilton, 546. Cleather i>. Twisden, 456. Cleave v. Jones, 857. Cleaver v. Mutual Life Ass., 626, 657. Clegg V. Hands, 1047, 1048, 1060, 1062. V. Rowland, 1087. Cleland, Exp., 875. Clement v. Cheesman, 1003. V. Gunhouse, 113. Clements i). Matthews, 974. V. Norris, 456, 973. V. Welles, 1062, 1063. Clementson v. Blessig, 613. Clerk V. Wright, 260. Gierke t). Martin, 527. Clermont ji. Tasburgh, 315, 981. Cleworth v. Pickford, 868. Clifeord i>. Burton, 499. V. Parker, 703. V. Watts, 589, 594, 596, 598. Clifton V. Cockburn, 290. Climpson v. Coles, 216. CHnan i>. Cooke, 231, 259, 985. Clinch V. Financial Corp., 508. Clink V. Eadford, 418. CKpsham v. Vertue, 573. Close V. Phipps, 77. Clough v. Lambert, 631. V. London & N. W. Ey., 295, 321, 322, 323, 327. Clowes V. Brooke, 473. V. Higginson, 154, 266, 276, 985. Clubb V. Hutson, 627. Clugas V. Pampeluna, 664. Clun's case, 586. Clutterbuok v. CofSn, 539. Coats V. Boswell, 305. Coate's case, 137, 774. Coates V. Coates, 850. V. Collins, 596. -. V. Wilson, 473. Coats V. Chaplin, 261. Coatsworth v. Johnson, 204, 979. Cobb, Bxp., 629. V. Becke, 93, 401. Cobbold». Gaston, 221. Cobequid Ins. v. Barteux, 449. Cobham v. Dalton, 892. Cochran v. Retberg, 172. Cochrane v. Green, 760, 875, 1014. i>. Moore, 248. V. WnUs, 284. Cock V. Richards, 356, 658, 934. Cockburn, Mx p., 369. Cockburn v. Alexander, 168, 195, 899. V. Edwards, 358, 767, 930. CockeU V. Gray, 172. • V. Taylor, 63.5. Cooker's case, 685. Cockerell v. Aucompte, 460, 712. V. Van Diemen's Co., 914. Cocking V. Pratt, 285. V. Ward, 100, 212, 265, 257. Cockran v. Irlam, 401. OockriU v. Sparke, 864, 864. Cockroft V. Black, 1088. Cocks, Ex p., 629. V. Masterman, 89. V. Nash, 795. Cockshott V. Bennett, 669. Cockson 4). Cock, 104 7. Coddington r. Paleologo, 671, 713. Coganj). DufBeld, 272. Coggs V. Bernard, 610. Cohen v. Armstrong, 466. . V. Hale, 773. V. Kittell, 652. V. Mitchell, 1105. V. South Eastern Ry., 176, 177, 605. Cohn V. Davidson, 343. Coker, Exp., 892. Colbum V. Patmore, 62, 626. Cole V. Blake, 746. V. Gibson, 659. V. North Western Bank, 389, 436. V. Parkin, 704. ■ • V. Sims, 937, 1061, 1062. Coleman v. Birmingham, 41. V. Riches, 318, 397. Coles «>. Barrow, 1106. V. Bristowe, 438. ■ V. Bnlman, 57. V. Hulme, 190, 191, 273, 691. V. Pack, 9, 181, .541. . V. Pilkington, 258, 546. f. Trecothiek, 235, 535. ■ V. Turner, 555. CoUard v. South Eastern Ry., 920. Collen V. Wright, 430. Collett V. Dickenson, 486. Colley V. Streeton, 908. Collier v. Jenkins, 719. CoUingbourne v. Mantell, 758. Collinge v. Heywood, 844. XXVl TABLE OF CASES. Collingridge v. Royal Exchange Ass. , 657. Collins V. Benning, 844. V. Blantern, 125, 183, 626, 627, 672. V. Castle, 1060. V. ColUns, 764, 824. t'. Godefroy, 541. • V. Jones, 880. V. Locke, 640, 820. V. Plumb, 973. V. Prosser, 379, 700, 799. V. Stimson, 1105. CollisD. Emett, 118. Collison «). Barber, 956. CoUyer v. Fallon, 626. i>. Isaacs, 889, 974. V. Willook, 859. Colman v. Eastern Co. Ey., 508. v. Barrel, 530. Colonial Bank v. Cady, 117. V. Exchange Bank, 95, 421. t>. Hepworth, 118. V. Whinney, 1101. Colonial Ins. v. Adelaide Ins., 18, 270. Coltman, He, 665. Columbine v. Chichester, 982. Colvin V. Buckle, 844. Colyear v. Mulgrave, 365. Comfort V. Betts, 999. Commercial Bk. of S. Australia, He, 910, 967. Commercial Steam Co. v. Boulton, 172, 732. Commercial Union v. IJister, 63. Commings v. Heard, 817, 818. Commins«. Scott, 230, 240, 371. Commissioners of Stamps v. Hope, 34, 806. Companari i>. Woodbum, 31. Compton, £e, 1089. 2,. Bagley, 727, 924. Concha v. Concha, 812. V. Murietta, 175. Conflans Quarry Co. v. Parker, 707. Congham v. King, 1057. CoDgleton V. Pattison, 1043, 1048, 1049. Conolan v. Leyland, 486, 826. Conquest's case, 685. Consolidated Co. v. Curtis, 443. Const V. Harris, 973. Constitution, The, 462. Contract Corporation, Jile, 512. Con^way v. Gray, 616. Cooch V. Goodman, 113, 120, 203, 518. Cook's case, 750. Cook V. Fearn, 270, 272. . V. Field, 634. Cook V. Fowler, 133, 944, 963, 956. V. Gregson, 126. V. Hopewell, 763. V. Jennings, 51. V. Lister, 688, 787. V. "Ward, 398. V. Wellock, 1104. V. Wright, 543. Cooke, Mp., 1104. V. Chilcott, 962, 1039. 1!. Clayworth, 505. V. Cooke, 819. f . Esohelby, 427. V. GiU, 33, 34. v. Hemming, 20, 1101. V. Lamotte, 78, 79, 357, 360. V. Oxley, 29. ». Petty, 386. v. Seeley, 370, 420, 455. V. Stephen, 802. V. Wilson, 413. Coombe's case, 399. Coombe, Ex p., 213. V. Greene, 569. Coombes v. Bristol & Ex. E.y., 243, 261. r. Dibble, 650. Coombs, Ee, 81. i\ Coombs, 850. r. Wilkes, 228, 230. Coope t). CressweU, 127, 653, 862. Cooper, Ex p., 646, 1000. V. Asprey, 80. V. Cooper, 176. V. Crane, 351. V. Elston, 221, 248. . V. Evans, 162. V. Jarman, 1081. ■ V. Lloyd, 493, 497. . r. Lond. & B. Ey., 942. V. Metrop. Board, 972. V. Parker, 765. i\ Phibbs, 284, 289. V. Prichard, 892. V. Shuttleworth, 821, 824. V. Simmonds, 1074. V. Simmons, 607, 1083. V. Slade, 623. !'. Smith, 234. V. T-wibill, 1048. V. Waldegrave, 957. Cope V. Albinson, 22. V. Eo-wlands, 621. V. Thames Haven Ey., 513. Copin *'. Adamson, 109, 176. Copland v. Laporte, 378, 379. Copper Miners' Co. v. Fox, 508, 514. Coppock i\ Bower, 624. Corbett, Ex p., 375, 1100. v. Brown, 314. TABLE OF CASES. XXVll Corder v. Morgan, 367. Cordingley v. Cheesebrough, 992. Cordova Gold Co., Ee, 775, 952. Cordwell v. Martin, 704. Cordwent v. Hunt, 692. Cork V. Baker, 210. V. RusseU, 138. Cork and Bandon E.y. v. Cazenove, 471, 472. V. Goode, 143, 831. Cork and Toughal Ry., Ee, 58, 511, 621, 671. Corkling ». Massey, 145, 674. Corner v. Sweet, 798. Cornfoot V. Fowke, 300, 319. Cornforth v. Kiyett, 870. V. Smithard, 853, 856. Comisli 1). Abington, 2. Cornwall v. Hawkins, 468. Corpe V. Orerton, 477. Cort V. Ambergate Ry., 579, 763. Cory V. Bristow, 213. V. Burr, 616. V. Cory, 360. i>. Patton, 342. V. Thames Ironworks, 915, 917. Coslake v. Till, 727, 971. CoBsman v. West, 564. Costa Rica v. Brlanger, 462. Costigan v. Hastier, 984. Cote, Sxp., 30. Cotes V. Davis, 488. Cothay v. Fennell, 421. V. Murray, 686. Cottami;. Partridge, 100, 101, 767. CottereU v. Jones, 630. Cotton V. Godwin, 740, 742. ». Thurland, 649. CottreU's Estate, Be, 476. Couch V. Tregonning, 1059. Couldrey v. Bartrum, 765 Coulthart «). Clementson, 31, 1079. Counsell v. London & W. Loan Co., 191. County Life Asso., Ee, 521. Coupe Co. V. Maddick, 610. Courtenay v. Williams, 850, 851. Courthope v. Daniel, 271. Courtney i>. Taylor, 102, 197, 806. Cousins, Ee, 1044. V. Nantes, 649, 653. Coutts v. Acworth, 531. Couturier v. Hastie, 206, 283, 695. Coventry's case, 21, 430. Coventry v. Gladstone, 1028. Coverdale v. Eastwood, 211, 564. Cowan's Estate, Me, 483, 652. Cowan V. Braidwood, 110. V. MUboum, 622, 666, 667, 670. V. O'Connor, 33. Coward v. Gregory, 562, 569, 906, 929, 1059. Cowbridge Ry . , iJe, 138. Cowell V. Edwards, 61. Cowie V. Halsall, 701. Cowles V. Gale, 727. Cowley 11. Watts, 15. Cowper V. Green, 543, 797. V. Harmer, 505. V. Smith, 801. Cox V. Bennett, 483. V. Bruce, 397, 448. V. Dolman, 831. i>. Hickman, 452. . V. Middleton, 231, 232, 316, 718. V. Midland Ry., 390. V. Mitchell, 816. V. Prentice, 83, 94, 783. V. Tory, 2, 30, 33. i>. Walker, 918. . V. Watson, 734. Cox & Neve, Ee, 717, 1061, 1063. Coxhead v. Mullis, 469. Crabtree v. Poole, 1001. CracknaU «). Janson, 114, 131. Cragoei;. Jones, 694, 800, 801, 893. Craig V. Phillips, 304, 525. Crampton v. Ridley, 37. . V. Varna Ry., 515, 964. V. Walker, 40. Crane v. Powell, 150. Cranley v. Hillary, 736. Craven v. Smith, 132. Crawcour «. Salter, 160, 1102. Crawford v. Forshaw, 1073. V. Toogood, 727. Crawley's case, 22. Crawshay, Ee, 974. Crawshay v. Maule, 1084. Craythome v. Swinburne, 60, 61. Crears v. Burnyeat, 542. V. Hunter, 642. Credit Co. v. Pott, 628, 766. Green v. Wright, 586. Cressington, The, 602. Cripps V. Davies, 864, 866. V. HartnoU, 208. i>. Reade, 87, 284. Crockford v. Winter, 945. Croft V. Graham, 356. . 1!. Lumley, 2, 787. Crofton V. Poole, 1105. Crook V. Seaford, 616. Crooke v. McTavish, 732, 733. Crookewit v. Pletcher, 573. Crooks V. Allan, 66. Crookshank v. Rose, 792. Croome v. Lediard, 168. Cropper v. Cook, 229, 437. Crosbie, Ex p., 886. I XXVIU TABLE OF CASES. Crosbie v. Tooke, 979, 1001, 1067. Crosby v. Wadsworth, 214, 215. Cross V. Bedingfield, 948. V. Cheshire, 66. V. Eglin, 174, 712. V. Sprigg, 795, 796. V. WilKams, 370, 459. Crossley, Re, 847, 892. V. Elsworthy, 531. V. G-lasgow Ass., 1031. V. Mayoock, 17, 147, 148. Crouch V. Credit Fonoier, 166, 997, 1012. V. Tregonning, 198. Crow V. Rogers, 365, 533. Crowder v. Stewart, 1088. Crowe V. Clay, 707, 772. V. Price, 625. Crowhurst ». Laverack, 540. Crowley v. Cohen, 341. V. Vitty, 212. Crown Bank, Se, 508. Crowther v. Elgood, 442. ». Parrer, 638, 539, 544, 758. Croydon G-as Co. v. Dickinson, 694. Croydon Hospital v. Parley, 517. Crozier v. Pilling, 784. Cruikshank v. Floating Bath Co., 817. Crumble v. Wallsend Loc. Bd., 846. Crumhn Viaduct Co., Re, 1102. Cruse V. Paine, 438, 559, 967, 968. Cruttwell V. Lye, 633, 634, 972. Cuckson V. Stones, 607. Cuddee v. Rutter, 967. Cuff V. Peun, 691. Cull V. Sarmin, 274. CuUen V. Butler, 192. Cullerne v. London & Sub. Bg. Soc. 607. Culley ». Chapman, 497. Cullingworth v. Loyd, 670. Cumber i>. "Wane, 765. Cumberland, Re, 768, 911. Cumberlege v. Lawson, 162. Cuming v. Hill, 474. Cumming v. Bedborough, 67, 68. V. Ince, 354. Cunard v. Hyde, 666. Cundell v. Dawson, 645. Cundy V. Marriott, 772. Cunliffe ». Harrison, 712. Cunningham, Re, 456. V. Dunn, 597, 601, 615. Cunninghame v. Glasgow Bank, 374. Curfew, The, 182. Gurlewis v. Clark, 756, 765. Currey, Re, 482. Ourrie v. Anderson, 244. Currie v. Misa, 768. Curtis's case, 472. Curtis V. Hannay, 918. V, Rickards, 103. V. Spitty, 1057. V. Williamson, 416. Curtius V. Caledonian Ins., 1031. Curwen v. Milbum, 851. Cusack 1!. Robinson, 241. Cuthbert v. Cumming, 177. V. Robinson, 180. Cuthbertson v. Irving, 1050. Cutler V. North London Ry., 604, 605, 606. V. Powell, 52. 4). Southern, 563. Cutts V. Thodey, 726, 1001. V. Ward, 646. Cuxon V. Chadley, 760, 1014. Da Costa v. Jones, 650. V. Simmonds, 616. Dagenham Dock Co., Re, 937, 939. Dahl V. Nelson, 574, 600, 737. Dails V. Lloyd, 83, 94, 102. Daintree v. Hutchinson, 174. Dakin v. Oxley, 907. Dalby v. India Ins., 655, 656. Dale, Exp., 1104. V. Hall, 603. V. Hamilton, 217. V. Sollet, 868. DaUman v. King, 655. D' Alton 1). D'Alton, 663. Daltou V. Gib, 475. V. Midland Ry., 488. V. Whittem, 75, 216. DalzeU v. Mair, 777. Dames and Wood, Re, 584. Danby v. Coutts, 394. Dane v. Kirkwall, 501. Dangerfield v. Thomas, 1103. D'Angibau, Re, 387. Daniel 4). Ferguson, 962. Daniell v. Sinclair, S3, 289, 958. Daniels i). Harris, 181, 343. Danube Ry. v. Xenos, 752. Darbey v. Whitaker, 822, 971. Darby v. Darby, 217. D'Arc V. London & N. W. Ry., 604. D'Arcy v. Tamar Ry. Co., 399, 518, 519. Dai-ley Main CoU. v. Mitchell, 846. Darlington v. Hamilton, 722. Darlington Banking Co., E.v p., 458. Darlington Waggon Co. v. Harding, 817, 825. ° Darlow v. Edwards, 48. TABLE OF CASES. XXIX D'Amay v. Chesneau, 1103. Darnell v. Williams, 547. DarreU v. TibHtts, 63, 64. Dartmouth v. Silly, 696. Dashwood v. Jermyn, 6, 211, 532, 654. Daubuz V. Morshead, 464, 466. Dauglish. v. Tennent, 668. Davenport v. The Queen, 2. Davey v. Shannon, 218, 219. Da-ridson v. Cooper, 697, 698. V. G-wymne, 576, 578. V. Stanley, 389, 423, 454. — — ■ V. Wood, 495, 496, 498, 600. Davies' case, 22. Davies v. Davies, 621, 633, 634, 639. V. Edwards, 858. V. Humphreys, 61, 845. V. London & Prov. Ins., 282, 312, 360, 677. V. MoVeagh, 573, 600. V. Makuna, 642. V. National Ins., 169, 339, 342. Davis, Ex p., 474. , He, 830, 834. V. ArtingstaU, 443. V. Gary, 613. V. Clarke, 422. V. Dodd, 538, 706. V. FlagstafE Mining Co., 811. V. Freethy, 633, 1007. V. Garrett, 603. V. Gyde, 770. V. Hedges, 91, 907. V. Howard, 56, 438. V. Jones, 161. v. Marlborough, 626. • V. Mason, 636. V. Morier, 85. V. Eeyner, 205, 642. r. Shepherd, 285. V. Smyth, 911, 947. V. Starr, 824. V. Stephenson, 651. Davis and Cavey, Re, 720, 924, 991, 992. Davison, Re, 809. V. Donaldson, 424, 425. Daw V. Herring, 582. Dawdy, Re, 824. Dawes' case, 551. Dawes, Ex p., 189. V. Creuke, 491. ». Harness, 322. V. Peck, 414, 715. V. TredweU, 196, 198. Dawkins v. Antrobus, 460. V. Penrhyn, 833, 849, 850. Dawson ». Beeson, 634. V. CoUis, 336. Dawson v. Dyer, 568. V. Fitzgerald, 820. V. Kearton, 530. i>. Linton, 66. V. Prince, 488. J). Wrench, 652, 661, 663. Day V. Carr, 80. V. Hemming, 646. . V. Luhke, 719, 727. V. McLea, 767, 788. V. Padrone, 488. V. Pargrave, 1070. . V. Wells, 240, 267. V. Woolwich B. S., 785. Dean v. James, 745. V. Maodowell, 458. V. Newhall, 799. Dear v. Verity, 163. Deare v. Soutten, 476, 498. Dearie, Exp., 1000. V. Hall, 1006. Dearsly v. Middleweek, 62. De Beauvoir v. Owen, 833. De Begnis v. Armistead, 665. Debenham v. Mellon, 493, 494. De Biel v. Thompson, 212. De Bussohe v. Alt, 391, 402, 403, 411, 794. De Cadaval v. Collins, 80. De Cordova v. De Cordova, 878. De Cosse Brissac v. Eathbone, 109. DecroLK v. Meyer, 553, 1017. Decks V. Strutt, 96, 205. Deerhurst, Ex p., 661. , Be, 141, 1000. DefEeU v. White, 160. De Francesco v. Bamum, 467, 474, 960. De Greuchy v. Wills, 1069. De Haber v. Queen of Portugal, 461. De Hoghton v. Money, 367, 631. De la Touche's Settlement, 274. Dela Vega v. Vianna, 176. Delhasse, Ex p., 452, 453. Delves v. Delves, 308. De Mattes v. Gibson, 961, 970, 1052. V. North, 653. V. Saunders, 874, 879. De Mautort v. Saunders, 420. De Medina v. Grove, 79, 141. V. Norman, 974. De Mesnil v. DaMn, 77. De Mestre v. West, 531, 545. Den V. Hopkinson, 733. Denaby Coll. v. Manchester S. & L. By., 81. Denby v. Moore, 82. Dendy v. Henderson, 637, 638. V. NichoU, 583. V. Powell, 870. XXX TABLE OF OASES. Denham, Re, 320. Denne v. Light, 984. Dennett v. Atherton, 928, 1039, 1063. Denny v. Hancock, 3, 266, 281. Denoon v. Home Ass., 655. Dent V. Bennett, 78, 79, 360. 41. Clayton, 274. V. Dunn, 707, 944. Denton v. Great Northern Ry., 13. V. Maoneil, 298. V. Eodie, 947. V. Stewart, 982. Deposit Life Ass. v. Ayscough, 322. De Pothonier v. Mattos, 802. Depree v. Bedborough, 88. Derby v. Taylor, 1052. Derby Canal Co. v. Wilmot, 511. De Riooi v. De Kicoi, 818. Dering v. WLnohUsea, 60, 384. Derisley v. Custanoe, 1054. De Eoo V. Foster, 470. De ilos' Trusts, Re, 196. Derry ». Daohesa of Mazarine, 490. V. Peek, 293, 310, 320. De Ruvigne's case, 411. Deslandes v. Gregory, 413. De Souza v. British S. Africa Co., 975. Deutsche GeseUschaft v. Briscoe, 823, 826. Devala Gold Mining Co., Re, 319. Devaux v. ConoUy, 86, 92, 899. Deverill v. Burnell, 588, 589, 899. De Visme v. De Visme, 949. Dew V. Parsons, 80. De Waal v. Adler, 723. V. Braune, 489. Dewdney, Exp., 850. Dewhurst, Exp., 1105. 'De "Worms v. Mellier, 558. Dick ». Tolhausen, 108, 141. Dicken v. Neale, 907. Dicker v. Jackson, 565, 567. Dickin, Exp.. 435, 791, 1103. Dickinson v. Angell, 135. V. Burrell, 631. i>. Dodds, 7, 28, 29, 31, 32. V. Jardine, 64. V. LUwaU, 398, 437. V. Teasdale, 835, 802. V. Valpy, 464. Dickson i). Oass, 880. D. Great Northern Ry., 604. V. Renter's Tel. Co., 431. V. Swansea Ry., 1013. V. Ziziuia, 337. Dietrichsen v. Cabbum, 961, 977. Digby V. Atkinson, 599. Diggie V. Blackwall Ry,, 612. i>. Higgs, 660, 673. Dignam v. Baily, 886, 889. Dilkes V. Broadinead, 645. Dillon, Re, 1003. V. Coppin, 114. Dimmock v. Hallett, 296, 297, 307. Dimsdale v. Dimsdale, 360, 361. Dines v. Wolfe, 95, 821. Dingle v. Hare, 437, 919. Diuham v. Bradford, 821, 823. Di Sora «. Phillips, 174. Ditcham v. Worrall, 469. Ditohburn v. Goldsmith, 650. Dix V. Great Western Ry., 367. Dixon, Exp., 395, 425, 426, 434. Re, 486. V. Clark, 739, 740, 741, 745. V. Muoklestone, 213. V. NuttaU, 843. V. Parkes, 741, 944, 948. V. Renter's Tel. Co., 25. V. Sadler, 344. DobeU V. Hutchinson, 228, 719, 990. V. Stevens, 316. Dobie V. Larkan, 741. Dobsou V. CoUis, 220. V. Espie, 686. Dodds, Re, 114, 888. Dodsley v. Varley, 242, 247. Doe i>. Bancks, 583. V. Benjamin, 731. V. Benson, 733. V. Bingham, 116, 702, 705. 1). Birch, 683. V. Bridges, 143. V. Burt, 179. V. Carter, 1097. V. Catomore, 703. V. Courtenay, 683. V. Crago, 284. V. Day, 731. V. Evans, 630. V. FUliter, 930. V. Gladwin, 710. 1). Godwin, 188, 276. V. Knight, 1 14. V. Laming, 213. V. Lea, 733. V. Manning, 531. V. Martin, 187. V. Oliver, 131. V. Pitcher, 678. V. Poole, 683. v. Reid, 1048. V. Shawcross, 736. V. Smith, 1046. V. Smyth, 119. V. Taniere, 614. p. Ulph, 594. V. Webster, 180. V. Wittcomb, 706. TABLE OF CASES. XXXI Doef. WrigM, 141. Doggett V. Catterms, 651. Doherty v. Allman, 960. DoUand v. Johnson, 139. Dolling V. Evans, 232, 591, 718, 985. Dolman v. Nokes, 305. Doloret v. Rothschild, 727, 967. Dolphin V. Aylward, 137. Donellan v. Read, 212, 216, 219, 220. Donnell v. Bennett, 961. Doogood V. Rose, 565. Doolan v. Midland Ry., 608. Dormer v. Knight, 188. Doughty?;. Bowman, 1043, 1047. V. Neal, 592. Douglas V. Forrest, 106. V. Holme, 103. 1}. Patrick, 743, 745, 747. Dover d. Child, 814. Dowell V. Dew, 1001. DowHng V. Ford, 859. Down V. Hailing, 77. V. Hatcher, 765. Downes v. Graaebrook, 364. V. Green, 656. V. Richardson, 706. V. Ship, 20, 317. Downman v. Williams, 415. Downs V. Collins, 973, 1084. Downshire v. Sandys, 3. Dowse's case, 684. Dowse V. Gorton, 1086. Doyle 11. Glasgow Ass., 555. V. Kaufman, 849. Dracaohi v. Anglo-Egypt Co., 1024. Drage v. Hartopp, 1073. Drake, Hxp., 807. V. Beckham, 1094. «. Mitchell, 140, 768, 807. Drant v. Brown, 149. Draycott v. Harrison, 484. Drayton v. Dale, 1104. Dresser v. Norwood, 427. Drew's Estate, Be, 1040. Drew V. Nunn, 405, 494, 503. V. Willis, 137. Drewe v. Corp, 718, 991. Dreyfus V. Peruvian Guano Co., 106, 955. Drinkwater v. Goodwin, 425, 434. Driver v. Burton, 59. Druiffi V. Parker, 269, 271. Drummond v. Bolton, 617. V. Van Ingen, 337. Drury v. Defontaine, 646. 11. Macnamara, 204. Drysdale v. Mace, 303. Dublin Ry. v. Black, 472. Dubout V. Maopherson, 34. Duckettv. Gover, 518. Duokmanton v. Duckmanton, 587. Duckworth, Se, 883. Duddell V. Simpson, 584. Dudgeon v. Pembroke, 186, 344, 667. Dufaur v. Professional Ass., 667. DufB's case, 18, 1085. Executors, Se, 32. DuffeU V. Wilson, 45. Duffield 11. Elwes, 1003. V. Scott, 563. Dufouroet v. Bishop, 64. Dugdale v. Lovering, 39, 40, 408. Duignan v. Walker, 638. Duke V. Andrews, 19. ■ V. Barnett, 717. ■ V. Littleboy, 640. Dumpor's case, 1046. Duncan v. Benson, 66, 449. V. Cannan, 176. V. Chamberlayne, 1009. V. Dixon, 468, 469. ■ V. Hill, 438. v. Lowndes, 466. V. New South Wales Bk., 384. V. Skipwith, 93. V. Topham, 24, 728. Duncombe v. Brighton Club, 951. Duncuft V. Albrecht, 967. Dundee Ry. Co., Se, 106. Dunkirk CoU. Co. v. Lever, 817, 906. Dunlop V. Higgins, 24, 26. Dunmore v. Alexander, 31. Dunn V. Flood, 979. V. Murray, 818. V. Wyman, 162. Dunnage v. White, 289. Dunning, Se, 1088. Dupleix V. De Roven, 106, 833. Duppa V. Mayo, 214, 215, 736. Duranty's case, 320. Durham v. Durham, 503. V. Fowler, 348, 349. ■ V. Legard, 285, 993. Durrant v. Eccles. Comm., 84. Durrell v. Evans, 226, 239. Duthie 1). Hilton, 576. Dutton V. Marsh, 423. V. Solomonson, 551, 715. • V. Thompson, 360. Duvergier v. Fellows, 594, 595, 672. Du Vigier v. Lee, 830. Dyerf. Best, 832. 11. Hargrave, 315, 988, 990, 992. V. Pearson, 389. Dykes v. Blake, 303, 720, 991. Dyson i>. London & N. W. Ry., 44. xxxii TABLE OF CASES. Eadiet). Addison, 17, 147, 556, 657. Eads V. Williains, 728, 988. Eaglesfieldw. Londonderry, 288, 294. Eardley v. Knight, 958. Earle v. Hopwood, 633. V. Oliver, 537. V. Peale, 475. Earlyti. Garrett, 88, 89, 302,331,332. . 1). Rathbone, 190. East and West Inda Docks v. Kirk, 826. East Anglian Ry. it. Eastern Co. B.J., 509,520. East End Bg. Soo. v. Slack, 1000. East London Union v. Metrop. Ry., 567, 924. East London Waterworks v. Bailey, • 511, 612. East of England Banking Co., JRe, 2, 947. Eastabrook v. Soott, 669, 670. Easterley v. Pullen, 865. Eastern Counties Ry. v. Hawkes, 964. Eastland v. Burohell, 493, 496. Eastmure ». Lawes, 812. Easton«!. London J. S. Bk., 167,1036. V. Pratohett, 6. Eastwood V. Kenyon, 8, 207, 208, 537. Eaton V. Baaker, 617. . V. Bell, 945, 957. V. Lyon, 184. Ebbett's case, 472. Eberle Hotel Co. v. Jonas, 879, 880. Ebrard v. Gassier, 463. Ebsworth and Tidy's Contract, Se, 399, 720. EbswortlnJ.Allianoe Marine, 654,657. Ecclesiast. Commiss. v. Merral, 514. V. North Eastern Ry., 608, 795, 847. Ecoleston v. Clipsham, 376, 380. Eckstein v. Reynolds, 746. Edan v. Dudfield, 245. Eden, Hx p., 474. V. Blake, 162, 164. , V. Ridsdale's Lighting Co., 411. Edevain v. Cohen, 808. Edgcombe v. Rodd, 627. Edge V. Boileau, 568, 928. V. Strafford, 203, 204, 212. Edgell ». Day, 94, 410. Edger v. Knapp, 69. Edgington v. Fitzmaurice, 294, 315. Edgware H. Bd. v. Harrow Gas Co., 534. Edie V. East India Co., 166. — — V. Kingsford, 155. Edmeads v. Newman, 72. Edmonds, Mp., 1086. Edmonds v. Robinson, 53. Edmunds v. Bushell, 396. V. Downes, 855, 886. V. WaUingford, 66, 67. V. Waugh, 830. Edward v. Cheyne, 489. Edwards, JSx p., 94. Edwards v. Aberayron Lis. Soc, 819. V. Baugh, 543. V. Brown, 264. V. Burt, 355. V. Coombe, 759. V. Grand Junction Ry., 524. V. Great Western Ry., 951. V. Hall, 217. V. Hancher, 769, 776. V. Hodding, 95. • V. Jones, 155, 531, 1002, 1003. V. KeUy, 208. V. Lowndes, 96. V. M'Leay, 302. V. Ronald, 894. V. Soarsbrook, 74. V. Towels, 495. V. Vere, 945. V. Warden, 944. ■ V. West, 609, 668, 726. V. Wickwar, 717. Edwiok V. Hawkes, 710, 1048. Egerton v. Brownlow, 625, 626. V. Matthews, 231, 236. Egmont V. Smith, 988. Ehrensperger v. Anderson, 93, 97. Eichholz V. Bannister, 86, 331, 332. Eland v. Karr, 870. Elbinger Gesellsohaft v. Armstrong, 902, 914, 915. V. Claye, 416, 417. Elborough v. Ayres, 630, 632. Blderton v. Emmens, 196, 906. Eldridge v. Burgess, 1095. Eley V. Positive Security Ass., 220, 226, 366. Elkington's case, 775. Ellard v. LlandaflE, 305. EUen 1}. Topp, 577, 678. Elliott). Clayton, 1105. V. Merryman, 781, 782. Elliott ». Freeman, 274. V. luoe, 502, 504. V. Johnson, 1042, 1046. V. Royal Exch. Ass., 820. V. Thomas, 223, 248. V. Turner, 189. V. Turquand, 407, 880, 881. EUis V. Barker, 358. V. ElUs, 475. V. Emmanuel, 385, 893, 894. r. Hamlen, 42, 49. r. McHenry, 109, 140, 798. 894 895. TABLE OF CASES. XXXIU EIUb v. Mortimer, 555. V. Rogers, 285, 303, 580, 716, 718, 720. V. Thompson, 180, 724. V. Wilmot, 694. Ellison V. Ellison, 530, 531. EUston V. Deacon, 458. Elmore v. Kingscote, 230, 233. V. Stone, 245. Elmslie v. Corrie, 886. Elphiok V. Barnes, 555, 610. Elphinstone v. Monkland Co., 938, 1001. Elsam V. Denny, 787. Elseo. Else, 717. Elton V. Curteis, 958. Elves V. Crofts, 634, 637. Elvy 1). Norwood, 831. Elworthy v. Bird, 628. Emblen v. Myers, 903. Emblin v. DartneU, 735. Emdeuv. Carte, 1094, 1105. Emerson v. Lashley, 99, 107. Emery v. Day, 840. V. Emery, 495. V. Wase, 403, 657. Emly V. Lye, 422, 455. Emma Mming Co. v. Grant, 359, 411, 891. f. Lewis, 359, 411. Emmerson's case, 286. Emmerson „. Heelis, 214, 223, 237, 238. Emmerton v. Matthews, 300, 334. Emmet's Estate, Se, 957, 958. Emmett v. Dewhurst, 690. Empress Engineering Co., Se, 366, 368, 392, 524. Engelbaok v. Nixon, 1106. EngeU V. Fitch, 926. England, The, 451. England v. Curling, 973. ■ V. Davidson, 541. V. Marsden, 67. Englefield CoU., Se, 411. English Channel Co. -n. Eolt, 509. English & Foreign Credit Co. v. Arduin, 15. Enthoven*. Hoyle, 103, 116. Ehtwistle, Jie, 435. 1). Davis, 217. Epery v. Cowlard, 682. Era Ins. Soc, 286. Erlanger ii. New Sombrero Co., 324, 359. Ernest v. Nioholls, 508, 519. Errington ■v. Aynesly, 122, 599, 935, 969. ErsMne v. Adeane, 163, 220. Esoott {'. Gray, 366, 459. L. EsdaUe v. Stephenson, 991. Esposito V. Bowden, 613, 647, 648. Essex V. DanieU, 87, 785, 924. Etherington v. Parrott, 493. European Bank, Me, 1018. European Central Ey., Be, 807, 953. European Soc. Acts, Be, 508. Evans, Se, 1086. V. Bicknell, 4, 210. V. Bremridge, 162, 380, 693. i>. Davis, 583. V. Edmonds, 309. V. Evans, 414, 442. V. Hallam, 74. V. Hooper, 366, 533. V. Jones, 626, 649. v. Llewellyn, 360. V. Nicholson, 33. V. Powis, 758, 759. V. Prothero, 226, 778. J). Koherts, 214, 221. D. Eoe, 157, 218, 585. V. SmaUoombe, 522. i>. Williams, 139. V. Wood, 967. Evelyn v. Chichester, 471. Everett 4). Collins, 771, 773. v. Desborough, 347. V. Robertson, 856. Ewing V. Osbaldiston, 676. Exall V. Partridge, 67. Exchange Bkg. Co., Be, 775. V. Blethen, 115. Express, The, 615. Exton V. Scott, 114. Eyre and Leicester, Be, 824. Eyre v. Forbes, 624. V. M'DoweU, 137. V. Popham, 401. Eyton, Be, 62, 812. V. Littledale, 870, 871. Fain v. Ayers, 1043. Fair v. Mclyer, 875. Fairclough v. Marshall, 1055. Fairlie v. Christie, 698. V. Denton, 414, 1014. V. Fenton, 436. Fairman v. Oakford, 585. Fairtitle v. GUbert, 520. Faith V. Richmond, 454. FaithfuU, Be, 108. Faithome v. Blaquire, 490. Falcko V. Gray, 535, 966, 986. V. Scottish Imp. Ins., 41, 42, Falkner v. Earle, 168. Fallowes v. Taylor, 627. Falmouth v. Roberts, 699, 703. V. Thomas, 100, 214, 253. XXXIV TABLE OF CASES. Family Endowment Soo., Re, 685. Fane v. Fane, 289. Fannin v. Anderson, 840. Farebrother v. Gibson, 313. V. Simmonds, 239. Farhall v. FarhaU, 1085, 1086. Farina v. Home, 248. Farman, Re, 1003. Farmer v. Kobinson, 240. V. Russell, 675. Famswortli v. Garrard, 42, 53. Farquhar v. Farley, 925. V. Morris, 948. Farr (J. "Ward, 911, 947. FarraU v. Hidditoh, 196, 198. Farrant v. Obnius, 934. Farrar v. Cooper, 826. V. Farrars, 357, 365. ■ ■ V. Hutchineon, 776, 780. V. Wiuterton, 1081. Farrer ». Close, 639. V. Lacy, 442. Farrow v. "Wilaon, 607, 1083. Faulder v. Silk, 502. Faulkner v. Lowe, 654, 594. Faure Electric Co., Re, 520. Faveno v. Bennett, 793. Faviell v. Gaskoin, 169. Fawoett and Holmes, Re, 302, 721, 1047, 1063. Fawcett v. Cash, 585. V. Holmes, 989. Fawcus V. Sarsfield, 344. Fawkes v. Lamb, 165, 168, 436. Fayle v. Bird, 735. Fazakerley v. Knight, 117, 797, 798. Feam v. Cochrane, 769. V. Lewis, 853. Feamside v. Flint, 829. Fearon J). Aylesford, 566, 661. Featherstone v. Wilkinson, 906. Featherstonliaugli v. Lee Moor Co., 507. V. Turner, 53. Fechter v. Montgomery, 962. Feilden v. Slater, 1062, 1063. Feise v. Wray, 440. Feize v. Thompson, 908. Felgate's case, 703. Fell V. Parkin, 416. Fellowes v. Gwydyr, 21, 401, 429. Fellows V. Thornton, 135. Fells V. Eead, 967. Felthouse v. Bindley, 16, 32, 260. FendaU v. Goldsmid, 491. Fenn v. Harrison, 396. FenueU v. Kidler, 646. Fennings v. Humphery, 962, 963. Feuton v. Emblers, 219. V. Holloway, 605. Fenwlck V. Bulman, 1001. V. Sohmalz, 600. Feret v. HUl, 296, 666, 667. Ferguson v. Carrington, 44, 295. ». Mahon, 110. V. Spencer, 895. V. Wilson, 519, 982. Fergusson v. FyfEe, 176, 957. Ferns v. Carr, 92. Ferrand v. BisohofBsheim, 427. Ferrao's case, 774. Ferrer's case, 810. Fesenmayer v. Adcock, 103. Fessard v. Mugnier, 735. Fewings, Exp., 807, 953. V. Tisdal, 48. Fidgett V. Penny, 101. Field V. Bezant, 870. V. Carr, 790. V. Lelean, 168, 670, 724. V. Kobins, 780. Fielden v. Marshall, 363, 422. Fife V. Clayton, 269. Fildes V. Hooker, 984, 995. Financial Corp. v. Lawrence, 890. Finch V. Boning, 747, 785. V. Brook, 743. V. Finch, 833, 957. V. Miller, 746. V. Underwood, 568, 1045. Findlay, Exp., 954. Findon ». Parker, 632. Fine Art Soo. -o. Union Bank, 76, 1036. Finlay v. Bristol & Exeter Ry., 515. V. Chimey, 606, 1083. Finley, Ee, 1099. Firbank «. Humphreys, 293, 431, 932. Firth, Exp., 529. V. Midland Ry., 567, 683, 822, 970, 982. Fischelsi. Scott, 572. Fish V. Kempton, 426, 427, 434. Fisher v. Apollinaris Co., 628. V. Bridges, 669. V. Drewett, 47, 444. V. Keane, 460. V. Liverpool Marine Ins., 342. V. Marsh, 414, 415, 442. !'. Mowbray, 466, 475. V. Payne, 37. V, Richardson, 542. V. Smith, 403, 406. — ; — V. Val de Travers Co., 932. Fishmongers' Co. v. Robertson, 7, 514. ' ' Fitch V. Fitch, 274. V. Jones, 652. V. Sutton, 765. TABLE OF CASES. XXXV Fitt V. Cassanet, 579, 687. Fitzgerald v. Chapman, 490. V. Dressier, 208. V. Fitzgerald, 1067. Fitzgerald's Trustees v. MeUersh, 949. Fitzherbert v. Mather, 340. Fitzmaxuioe v. Bayley, 231, 237. Flanagan v. Great WestemRy., 359. Flarty v. Adlum, 625. Flatau, £e, 107, 134. Fleet V. Murtou, 414, 415, 436, 441. V. Perrins, 488, 1065, 1070. Fleetwood v. Hull, 1048. Fleming v. Fleming, 182. Flemyng ». Hector, 459. Fletcher's case, 22. Fletcher, Hxp., 870. V. Ashburner, 1080. V. Bowsher, 301. V. Dyche, 871, 933. V. Fletcher, 114, 531, 1002. V. Krell, 300. V. Marshall, 92. V. Sondes, 592, 625. V. Tayleur, 911, 915. FHght V. Barton, 317. V. BoUand, 476. 1). Booth, 720, 721. V. Clarke, 666. V. Glossopp, 1040. V. Gray, 156. V. Leman, 630. V. Keed, 537. Flindt V. Waters, 464, 648. Flint V. Barnard, 886. V. Brandon, 971. V. Flemyng, 364. Flitoroft's case, 520, 837. FKtters v. AUfrey, 814. Flood V. Patterson, 840. Florence v. Jennings, 807, 944. Florence Land Co., Jte, 510. Flower, Se, 782. V. Buller, 231, 481, 485. V. Hartopp, 719. V. Lloyd, 140, 810. V. Marten, 795. V. Sadler, 72, 627, 628. Flureau v. Thomhill, 925. Foakes v. Beer, 539, 765. Foley V. Addenbrooke, 382, 1057. V. Fletcher. 196. V. Hill, 838, 945. Follit V. Koetzow, 540. Fontaine's case, 106. Foot V. Baker, 665. Forbes' claim, 344. Forbes v. Jackson, 384. V. Marshall, 454. Forbes v. Peacock, 781. Ford, mp., 1106. V. Beech, 189, 798, 799. V. Chesterfield, 939. V. Cotesworth, 566, 697, 600, 601, 615, 723. V. Kettle, 160. V. TUey, 581, 749. V. Yates, 151, 157, 724. Ford and Hill, Se, 303. Fordham v. Wallis, 850, 862, 866. Fordley's case, 587. Fordyce v. Ford, 718, 991. Fores v. Johnson, 626. Forster v. Mackreth, 454. V. Taylor, 621. V. Wilson, 875, 880. Forsyth v. Bristowe, 858, 861, 862. Fortescue v. Bamett, 1005. Forth V. Stanton, 205, 206. Forward?). Pittard, 170, 593, 603. Forwood V. North Wales Ins., 664. V. Watney, 824, 825. Foster, lixp., 551. V. AUanson, 101, 103. V. Bates, 392. V. Blackstone, 1006. V. Cockerell, 1006. V. Colby, 575, 1026. V. Dawber, 686, 688, 776, 858. V. Dodd, 544. V. Gamjee, 1095. V. Green, 73, 93. V. Jolly, 156. V. Ley, 56. V. MacMnnou, 264. V. Parker, 562. V. Stewart, 43. V. Wheeler, 556, 985. V. Weston, 945, 948. FothergOI's case, 774. Fothergill v. Rowland, 961, 966. Foulkes V. Metrop. Dist. Ry., 414. Fountaine a. Carmarthen Ry., 511, 520. Fowell V. Tranter, 188, 287, 582. Fowkes V. Manchester & London Ass., 194, 346. Fowle V. Freeman, 147, 236. Fowler's case, 278. Fowler V. Knoop, 1026, 1027. V. Monmouth Ry. Co., 641. V. Scottish Equitable Lis., 265. Fox V. Bp. Chester, 625. V. Mackreth, 305, 306. f. Nott, 1024, 1027, 1028. ». Wright, 355. Fragano v. Long, 715. Frame v. Dawson, 258. Frances. Clark, 117. c2 XXX VI TABLE OF CASES. France v. Dutton, 237. V. Gaudet, 915. V. White, 873. Francesco v. Massey, 418. Francis v. Cookrell, 333. V. Dodsworth, 871. J). Grover, 187, 831. V. Hawkesley, SSi. V. Wigzell, 484. Frank Mills Co., Be, 469. Frank v. Edwards, 695. Franklin v. Lord Brownlow, 978. V. MiUer, 578. Franklyn v. Lamond, 223, 442. V. Tuton, 970. Franks, Hx p., 489. Frasert). Cooper, 518. V. Ehrensperger, 826. V. Hatton, 639. V. Jordan, 694. V. Pendlebury, 77. Frayes v. Worms, 814. Frazer v. Cuthbertson, 451. V. Telegrapli Co., 578. Freake v. Cranefeldt, 836, 847. Freakley v. Fox, 1088. Free v. Hawkins, 155, 157. Freeman v. Baker, 16. . ■ e. "Bernard, 819. ». Cooke, 2, 5. V. Cox, 98. V. Jeffries, 82, 85, 817, 818. V. Lomas, 867, 871, 875, 877. V. Eead, 729, 733. V. Staoey, 828. i>. Taylor, 573. Freeth v. Burr, 571. Freme v. Wright, 717. Fremoult v. Dedire, 211, 645. French v. Andrade, 872. V. Campbell, 123, 612. V. Gerber, 418. V. Hope, 779, 1012. V. Macaie, 937. V. Newgass, 574. V. Patten, 687, 705. Frend v. Buckley, 721. Freshfield's Trusts, Se, 1007. Fricker v. Thomlinson, 241. Frier v. 'Roe, 842. Frisby, Se, 829, 863, 864. Frith D. Forbes, 435. V. Guppy, 815. Frontin v. Small, 368. Froset t). Walshe, 116. Frost «. Beavan, 502, 504. V. Knight, 750, 761, 752, 903. Frowd's case, 320. Frowde v. Williams, 453. Fruhling r, Schroeder, 945. Fry V. BeU, 777. V. Chartered Bk. of India, 1026. V. Lane, 356, 360. V. Tapson, 403. Fryer v. Boe, 101. Fuentes v. Montis, 404, 436. Fuller, Fxp., 78. V. Abrahams, 308. V. Eedman, 139. Fullwood f. Fullwood, 834. Furber, Sxp., 948. Furness v. Meek, 162, 185. FumivaE v. Coombes, 190, 193, 412, 518. Furtado v. Eodgers, 616, 648. Fatcher v. Futcher, 252. Gabarron v. Kreeft, 1028. Gabay v. Lloyd, 167, 446. Gabriel v. Blankenstein, 1100. V. Dresser, 757, 758. Gadd V. Houghton, 414. Gaetano, The, 449. Gainsford v. Carroll, 912, 914. Gale V. Capem, 865. 41. Gale, 367, 546. V. Lewis, 1009. V. Squier, 721. ». Williamson, 535, 536. GaUin v. London & N. W. By., 605. Galmoye v. Cowan, 482, 483. Galsworthy v. Strutt, 934, 940. Galtou V. Hancock, 128. Galway v. Matthew, 455, 457. Gamba v. Le Mesurier, 648. Games v. Bonnor, 716, 717, 833, 949. Gamon v. Vernon, 1057. Gandy v. Adelaide Ins., 340, 341. V. Gandy, 367, 662. Gantt V. Mackenzie, 947. Garbutt v. Watson, 221, 222. Garden v. Bruce, 844. Gardiner, Se, 490. V. Gray, 336. Gardner v. Baillie, 394. !>. Grout, 248. V. Lachlan, 413, 1009. V. London C. & D. %., 969. f . MoMahon, 854. r. Parker, 1003. V. Treechman, 151, 1026. V. Walsh, 701. Gardom v. Lee, 584. Gaxforth v. Fearon, 624. Garland, Kvp., 1086. V. Beverley, 190. V. Jacomb, 451, 458. Gamett, Se, 794. TABLE OF CASES.' XXXVll Garnett v. Aoton, 1080. V. Bradley, 135. Garrard, £xp., 1010. V. Cottrell, 40. V. Dinorten, 530. V. Frankel, 268, 273. V. Grinling, 269. V. Lauderdale, 786, 836. V. Lewis, 118, 186, 701. Garrett v. Handley, 420. Garston Co. v. Hickie, 574, 602. Gartside v. Silkstone CoU., 161, 511, 732. Gascoyne v. Edwards, 819. Gaskell v. King-, 678. Gaskin v. Balls, 962, 1062. Gas Light Co. v. Towse, 925. V. Turner, 183, 666, 667. Gaston v. Frankum, 484. Gatera v. Madeley, 488, 1070. Gath V. Lees, 588. Gathercole v. Smith, 870. Gatty V. Field, 673. V. Fry, 1023. Gauntlett v. Carter, 187. Gaussen v. Morton, 407. Gay V. Lander, 363. Geake v. Jackson, 790. • V. Koss, 950, 951. Geary t). Physic, 113. Gebruder Naf v. Ploton, 77. Gee, Se, 1053. V. Lancashire Ey., 901, 902, 922. V. LiddeU, 850. V. Pack, 789. V. Pearse, 728. Geere v. Mare, 669, 671 . Geipel v. Smith, 614, 615; General Auction Co. v. Smith, 509. General Credit Co. r. Glegg, 940. General Discount Co. v. Stokes, 890. Gen. Finance Co. v. Liberation Soo., 1061. Gen. Horticult. Co., Se, 1007. General Eolllng Stock Co., He, 837. General South American Co., -ffi(S, 510, 957. General Steam Nav. v. Gouillou, 814. V. Eolt, 694. . V. Slipper, 597. Genese, Me, 492. George, He, 550, 561, 688, 742. V. Clagett, 426. Gerard v. Lewis, 997. German Mining Co., He, 459. German v. Chapman, 191, 987. Gething v. Keighley, 102, 837. Gibb V. Mather, 735. Gibbin v. MoMuUen, 610, Gibbins v. Metrop. Asylum District, 148. Gibbon v. Budd, 38, 643. V. Mendez, 576. V. Young, 168. Gibbons f . Caunt, 290. V. Vouillon, 798. Gibb's case, 509. Gibbs and West's case, 883. Gibbs V. Cruikshank, 904. V. Fremont, 957. V. Gray, 712. V. Guild, 846, 847. . r. Harding, 661. V. Messer, 178. t'. Societedes Metaux, 176, 895. V. Southam, 560. Gibert 4). Gonard, 1104. Gibson, i:xp., 686. Se, 503, 504. V. BeU, 880. V. Carruthers, 1096, 1097, 1098. V. D'Este, 303, 720. V. Goldsmid, 980, 981. V. Hickson, 245. V. Holland, 226. V. Jeyes, 78, 79, 358. V. Lawson, 639. V. Small, 343, 344. f . Spurrier, 720. Giener v. Meyer, 176. Gifford V. Whittaker, 758. Gilbert v. Endean, 305, 306. i;. Sykes, 649. Gilbey, Hx p., 759, 893. Gilchrist, £x p., 485. GOes V. Bourn, 728. V. Edwards, 86. V. Giles, 565, 580. Gilkes V. Leonino, 30, 573. Gill's case, 882. Gill, i:xp., 47 i. V. Barron, 895. V. Manchester Ey., 604. Gillard v. Brittan, 917. Gillespie, Se, 880, 910. V. Glasgow Bank, 374. . r. Hamilton, 1084. Gillett V. Mawman, 50. Gilliat ». Gilliat, 307. V. Eoberts, 248. Gih'oy V. Stevens, 958. Gingell v. Purkins, 97, 766. Girardy v. Eiohardson, 664. Giraud v. Eichmond, 218, 689. Girdlestone v. Brighton Aquarium, 142, 811. Gladstone r. King, 340. Glaholm V. Hays, 573, 578, Glasier v. Eolls, 310, xxxvm TABLE OF CASKS. Glasscock v. BaUs, 723, 742, 787. Glazebrook v. Woodrow, 567. Glegg v. Eeee, 786. Glen V. Lewis, 345. Glenfruin, The, 343. Glengal v. Barnard, 235. Gloag and Miller, Be, 718, 720. Gloucestershire Bank v. Phillipps, 483. Glover «). Hackett, 68, 210, 231. V. Moore, 1008, 1101. Glyn V. Baker, 76. V. B. & W. India Docks, 1029. Glynn v. Thorpe, 132. Goate V. Goate, 854. Godardi). Gray, 109, 111, 175. Goddard's case, 115, 731. Goddard v. Cox, 788. — — ■ V. Hodges, 791. V. Ingram, 855. »j. Jeffreys, 263, 266, 279, 281, 313, 314. • V. O'Brien, 765. Godefroy v. Jay, 908. Godfrey v. Poole, 531. 1). Saunders, 402. ■ V. Tucker, 136. V. "Watson, 135. Godin V. London Ass., 63. Godsall V. Boldero, 655. Godts V. Rose, 725. Godwin v. Brind, 237, 445. . • V. Francis, 226, 235, 239, 445, 925, 926, 932. Golding, JExp., 1029. Goldshede v. CottreU, 769. V. Swan, 181, 193. Gomersall, Se, 629. Gompertz v. Bartlett, 89. V. Denton, 91, 334. Goooh's case, 472. Good, Mp., 777, 781, 800. V. Cheesman, 759. ■ V. Elliott, 649. Goodall V. Lowndes, 628. V. Skelton, 250. Gooday v. Colchester, 515. Goode V. Harrison, 457, 471. Goodison v. Nunn, 567. Goodland v. Blewith, 747. Goodman v. Chase, 207. V. Pocook, 48, 906. V. Robinson, 1000. Goodright v. Vivian, 1048. Goodtitle v. Bailey, 193. V. North, 891. Goodwin V. Cremer, 763. . V. Eoharts, 76, 166, 1000, 1035, 1036. Goodyear v. Weymouth, 658. Goom V. Aflalo, 227, 238. Gordillo v. Weguelin, 948. Gordon «).. Calvert, 1078. V. Ellis, 426, 457, 458, 779, 873. V. Gordon, 290. V. G. W. Ry., 604. V. Hertford, 269. V. James, 785. f. Snber, 171. ». Strange, 744. • ■ V. Swan, 946. Gore V. Gibson, 501, 605. Gorely, :Ex p., 598. Gorgier v. Mieville, 1036. Gorman v. Salisbury, 691. Gorringe v. IrweU. Works, 1005, 1101, 1102. Gorrissenv. Perrin, 572. Gorst V. Lowndes, 729. Gorton V. Gregory, 1052. Gosbell V. Archer, 88, 235, 238, 254, 925. Goss V. Lord Nugent, 687, 689, 691. Gough V. Fiudon, 99. Gould V. Barnes, 371. V. Haynes, 646. Gourlay v. Somerset, 822, 823, 980, 986. Gover's case, 525. Gover, Bxp., 304. Government Fire Ins., i2«, 914. Government Security Co. v. Demp- sey, 775, 883. Govier t>. Hancock, 497. Gowan v. Forster, 869. 4). Wright, 134. Gowland v. De Faria, 355, 357. Grady's case, 522. Graeme t). Wroughton, 624. Grafton v. Armitage, 222. r. Eastern Co. Ry., 557. Graham v. Allsopp, 66, 878. ■ i\ Campbell, 909. V. Dyster, 435. • V. Graham, 116. V. Johnson, 543, 1012. V. Musson, 229, 239, 240. — — ■ V. Oliver, 994. V. WUcookson, 767. Grain's ease, 684. Grainger v. Hill, 351. Granger v. George, 846. V. Worms, 719. Grant, Rr p., 438. Grant r. Coverdale, 600. V. Easton, 104, 106. V. Fletcher, 18, 227. V. Grant, 182. t>. Maddox, 172. v. Munt, 304, 990. TABLE OF CASES. XXXIX Grant v. Norway, 396, 447. V. Switchback Ry. Co., 522. Gratitudine, The, 449, 460. Gratton, Sx p., 735. Gravely v. Bernard, 124, 633, 634, 636. Graves, JSx p., 465. V. Key, 776. V. Legge, 437, 573, 738. V. "Weld, 214. Gray v. Biscoe, 927. V. Carr, 418, 419, 1026. V. Cox, 336. V. Fowler, 684, 930. V. Mathias, 660. V. Pearson, 366. V. Kaper, 423. V. Seokham, 385, 894. V. Smith, 148, 217, 972. • V. Webh, 870. Greaner, Exp., 735. Great BerUn Steamboat Co., JJ«, 673, 674. Great Britain Steamship Ins. v. WylUe, 369, 371. Great Eastern Ey. v. Turner, 508, 1102. Great Northern By. and Sanderson, Se, 984. V. Shepherd, 44. - — ■ V. Swaffield, 390. 1). Witham, 12, 27, 30. Great Western By. v. Bagge, 414. V. Bunch, 606. 1>. Cunliffe, 410. V. McCarthy, 605. V. Sutton, 80, 81. V. Eedmayne, 920. V. Eous, 188. Great Wheal Polgoath Co., Ee, 359. Greaves, Ue, 834, 836. V, Ashlin, 157. D. Longster, 250. V. Wilson, 583. Grebert-Borgnis «. Nugent, 902, 915. Green v. Attenborough, 702. V. Bartlett, 444. V. Baverstock, 306. v. Beach, 34. V. Cresswell, 208, 209. V. Davies, 98, 100. V. Duukett, 80, 352, 353. V. Gosden, 314. V. Greenbank, 470. V. Humphrys, 853. V. James, 1058. V. Kopke, 417. V. Low, 982. V. Mules, 47, 444. V. Paterson, 546. Green v. Pole, 826. V. Saddington, 212, 263. V, Sevin, 727. ». Smith, 879, 982. V. Wynn, 801. Greenaway v. Adams, 982. 1>. Hart, 1055. Greene v. West Cheshire By., 970. Greenshields v. Crawford, 178. Greenslade v. Dower, 464. Greenwood v. Bishop of London, 679. V. Sutcliffe, 740, 746. V. Turner, 965. Greer v. Poole, 177. Gregory v. Hurrill, 846. V. MigheU, 257, 822. V. Williams, 365, 368. V. Wilson, 979. Gregson, Re, 877. v. Buck, 18, 227. Greig v. Talbot, 692. Grell V. Levy, 622, 630. Grenfell v. Dean of Windsor, 626. Greningham v. Ewer, 586. Gresty v. Gibson, 797. Gretton v. Mees, 99. Grey v. Ellison, 364. i>. Hesketh, 592, 625. V. Pearson, 187. Grioe v. Kenriok, 428, 443. ■ V. Richardson, 247, 1096. GrifEenhoofe v. Daubuz, 67. GrifBn v. Weatherby, 1005, 1015. GrifBth's case, 686. Griffith V. Young, 256. Griffiths V. Dudley, 621. V. Jones, 279. V. Owen, 910. . V. Perry, 768, 913. Grigg V. National Ass., 247. GrUl V. General Coll. Co., 602. Grimman v. Legge, 52. Grimoldy V. WeUs, 241, 338, 714. GrindeU v. Godmond, 498. Grisaell's case, 883. Grissell v. Bristowe, 438. V. Robinson, 56, 568. Grizewood v. Blane, 649. Groom v. Mealey, 878. V. West, 880. Grove v. Dubois, 207, 441. Groves v. Groves, 985. V. Loomes, 1049, 1063. Guardian Building Soc, Re, 609. Gudgen v. Besset, 115, 161. Guerriero v. Peile, 434. Guest V. Cowbridge By., 139. V. Homfray, 728. «). Smythe, 358. Guidon v. Bobson, 375, 382. xl TABLE OF CASES. GruU V. Lindsay, 207. Gulley V. Bishop of Exeter, 535. GuUiachen v. Stewart, 419, 1026. GuUiTer v. Coeens, 80. Gnmm v. Tyrie, 186, 364. Gunmakers' Co. v. Fell, 640. Gunn's ease, 22. Gunn v. Bolckow, 768, 769. V. Roberts, 448. Gunnestad «. Price, 192. Gunnis v. Erhart, 164. Gumey v. Behrend, 1029. V. Evans, 453, 454. v. Womersley, 89. Gurrin v. Kopera, 369. Guthing V. Lynn, 547, 591. Guthrie v. Annstrong, 399. Guy V. Churchill, 631, 632. Guyard v. Sutton, 488. Guyer o. The Queen, 645. GwiUim V. Daniel, 712. Gwyu V. Godby, 945. Gwyim V. Lethbridge, 269. Gwynne v. Davy, 692. Gylbert v. Fletcher, 474. Gyles V. Hall, 734, 944. H. V. W., 661. Habberton v. Wakefield, 79. Habershon's case, 774. H'addou v. Ayers, 380. V. Haddon, 662. Hadley v. Baxendale, 901, 922. V. Clarke, 613. V. Green, 810, 811. Hagedom «. OHverson, 391. Hagg 1). Darley, 635, 972. Hague V. French, 724. Haigh V. Brooks, 181, 193, 533, 543. V. De la Cour, 654. V. North Brierley, 513. V. Royal Mail. Co., 605. Haldane v. Johnson, 736. Hale V. Boustead, 892. V. Rawson, 572, 595. Hales V. Freeman, 66. Halford v. Kymer, 656. Halhead v. Young, 268. Halifax Bank*. Gledhill, 531. Halifax Union v. Wheelwright, 1020, 1023. Hall, i:xp.,2lS, 1005. Sf, 776. and Barker, He, 49, 844. 1). Ashurst, 415. V. Bainbridge, 114, 116. V. Ball, 120. V. Betty, 8, 721, HaUv. Cazenove, 115, 160, 594, 731. i V. Chandless, 705. V. Dyson, 629. V. Ewin, 1052, 1062. V. Flookton, 758. V. Fuller, 701, 702. 1). Hardy, 825. ■». Jupe, 449. ». Kitchin, 445. ». Levy, 798, 810. V. Lund, 180. V. North Eastern Ry., 605. V. Odber, 107. D. Palmer, 114, 660. V. Potter, 669, 660. V. Pritchett, 651, 552. V. Swansea, 515. V. Warren, 502, 504. V. Wright, 607, 723. Hallaa v. Robinson, 974. Hallen v. Runder, 216. Hallett's Estate, Se, 3, 791, 1104. HaUett, He, 1104. . V. Hallett, 876, 887. Halliday, i:xp., 1096. HaUows V. Femie, 20, 312, 315, 317. Halsey v. Grant, 718, 721, 988, 991, 995. Halstead v. Skelton, 735. Hamber v. Roberts, 178. Hambly v. Trott, 71, 1076. Hamelin it. Brack, 704. Hamer v. Sharp, 237, 444. Hamilton's Ironworks, Jie, 609, 510. Hamilton, He, 476. ». Chaine, 529. V. Grainger, 605, 664. V. Hamilton, 469. V. Hector, 663. V. Houghton, 956. V. Mohun, 660. V. Pandorf, 602. V. Spottiswoode, 1014. r. Thames Ins., 344. V. Watson, 347. Hamlet v. Richardson, 79. Hamlin v. Great Northern Ry., 900, 903, 905, 923. Hamlyn v. Betteley, 529, 766. f . Wood, 197, 612, 750, 904. Hammersley v. De Biel, 211, 212, 225, 554. Hammond v. Bussey, 901, 931. V. Messenger, 1000. V. Schofield, 372, 809. V. Smith, 855. Hampden v. Wallis, 98. V. Walsh, 649, 651, 672. Hamper, Hxp., 461. Hampshire v. Wickens, 556, 1045. TABLE OF CASES. xli Hancock, He, 851. ■ V. Cafifyn, 1093. V. Keld, 796. V. Smith, 791. Hand v. HaU, 203. Hands V. Burton, 7G7. v. Slaney, 473. Hanington v. Duchatel, 624. Hankey i\ Smith, 880. Hanley v. Pearson, 270, 271, 272. Hanmer v. White, 135. Hanner v. Morton, 357. Hansard v. Robinson, 706, 707. HansKp t>. Padwick, 924. Hanson v. Koyden, 540. Harhen v. Phillips, 114. Harbert's case, 126. Haroourt v. "Wyman, 489. Harding, Ex p., 379. V. Ambler, 778, 795. V. Harding, 96, 998. V. Howell, 531. V. Metrop. Ry., 965. Hardingham v. Allen, 745. Hardman v. Bellhouse, 93. V. Booth. 21, 329. V. Child, 583, 584, 720, 1039. Hardy v. Caley, 782. V. Fothergill, 888, 889. V. Ryle, 848. Hare v. Burgess, 1044. V. Henty, 774. V. Horton, 116. V. Rickards, 947. Hargreave v. Smee, 181, 194. V. Spink, 76. Hargreaves v. Michell, 835. V. Parsons, 207. V. Thompson, 924, 925, 956. Harington v. Hoggart, 95, 442. Harker v. Edwards, 39, 438. Harland ii. Binks, 786. Harley v. King, 1059. Harlock v. Ashberry, 862. Harman's ease, 684. Harman v. Johnson, 456. V. Kingston, 464. f. PoweU, 1048. V. Reeve, 221, 253, 255, 266. Harmer v. Priestley, 740. Harms v. Parsons, 637. Harnett v. Baker, 718. V. Yielding, 959, 979. Harnor v. Groves, 91, 154, 325. Harold, Exp., 891. Harper v. Davis, 763. V. Godsell, 394. V. WiUiams, 415, 946. Harrald, -Re, 875. Harrhy v. Wall, 117, 670, 798. Harrington v. Hoggart, 410. V. Kloprogge, 678. V. Long, 630, 632. V. Victoria Dock, 409. Harris' case, 19, 24, 25, 27. Harris, Re, 604, 836. V. Brisco, 630, 632. 1). Carter, 539. V. Dreesman, 600. ■ V. Fawcett, 1079. V. Fleming, 34. . V. Goodwyn, 693, 794. V. Great Western Ry., 13, 14. V. Hnntbach, 206. V. Jacobs, 601. V. Lee, 498. V. Morris, 497. V. Nickerson, 12, 27. V. Osboum, 49, 844. V. Peppereli, 268. V. Petherick, 135. V. Quine, 833, 844. V. Reynolds, 819. i>. Rickett, 154. V. Saunders, 106. V. Scaramanga, 177. V. Truman, 1101, 1104. V. Tubb, 546. V. Venables, 647. V. Wall, 468. ■ V. Watson, 539. Harrison's case, 19. Harrison, Ee, 1088, 1089. V. Allen, 946. V. Cage, 210, 545, 723. V. Elwin, 236. V. Fane, 473. V. Guest, 535. V. Harrison, 236, 986. V. Jackson, 463. V. James, 53. V. Muncaster, 595, 900, 928. V. Wright, 936. narrower ». Hutchinson, 340. Harry v. Davey, 367. Harsant v. Blaine, 945. Hart's case, 472. Hart V. Alexander, 457, 686. V. Bush, 243. V. Hart, 493, 662, 663, 986. V. Herwig, 966. . V. Mills, 48, 712. 1). Minors, 96. V. Nash, 859. V. Prater, 473. V. Prendergast, 853. V. Sattley, 243. V. Standard Ins. Co., 173, 188. V. Stephens, 866, 1065, 1070. V. Swaine, 89, 302, 309, 718. xlii TABLE OF CASES. Hart «!. Windsor, 199, 304. Hartaa v. Ribbons, 39, 438. Hartland v. Jukes, 843. Hartley's Trusts, 48, 602. Hartley v. Cummings, 7, 635. V. Manton, 797. V. Pousonby, 540. V. Rice, 660, 659. V. Wharton, 468. Harvey v. Barnard's Inn, 148. i>. Gibbons, 594, 618. 1!. Grabham, 689, 690. V. Johnston, 12, 545. V. Municipal Bg. Soc, 778. V. Young, 296. Harward's case, 22. Haslam v. Sherwood, 594. Hasleham i). Young, 456. Hassell v. Long, 695. Hastelow v. Jackson, 649, 672. Hastie's case, 890. Hastings, Re, 125, 484, 866. V. Whitley, 634. Hatch V. Hatch, 360. Hatchard v. Mege, 1075. Hatchett v. Baddeley, 489, 490. Hatsall V. GrifBth, 383. Hatten v. Russell, 726, 727. Hatton, Re, 769. V. Haywood, 138. . • V. Royle, 456. Havelock v. Geddes, 578. Havens v. Middleton, 710. Havey v. Young, 5. Hawes v. South Eastern Ry., 920. Hawkeu v. Bourne, 451, 457, 469. Hawkes v. Saunders, 536, 537. Hawkes worth v. ChafEey, 148. Hawkins v. Maltby, 438, 967. V. Rutt, 772. V. Walrond, 1047. V. Whitten, 880. Hawksworth v. Handsworth, 663. Hawley v. Beverley, 59. Hawtayne v. Bourne, 459. Hay's case, 410. Hay V. Ayling, 653. Haycraft v. Creasy, 4, 6. Haydon v. WUHams, 225, 706, 853, 855, 856. Hayes v. BickerstafBe, 568. V. Warren, 8. Haygarth v. Waring, 304, 306. Hayman, Ex p., 453. • V. Flewker, 435. Hayn v. Culliford, 447, 603. Haynes v. Haynes, 14. Hayton v. Irwin, 168, 574, 737. Hayward, Ex p., 118. . V. Ribbans, 141. Hayward u. Young, 636. Haywood v, Brunswick Bg. Soc, 1039, 1060, 1063. V. Cope, 985. V. saber, 1045. Hazard v. TreadweU, 389. Hazelgrove v. House, 797. Head's Trustees, Re, 116. Head v. Baldry, 253. V. Diggon, 29. V. TattersaU, 335, 585, 610. Heald v. Kenworthy, 424. Healey i). Spence, 765. V. Storey, 423. ' Heap V. Harris, 350, 356. Heaphy v. HiU, 728. Heard v. Pilley, 240. V. Stamford, 1067. V. Wadham, 567, 577, 755. Heartley v. Nicholson, 531, 1002. Heath v. Bindley, 407. V. Chilton, 1085. V. Crealock, 131. Heather v. Webb, 538, 886. Hebb's case, 22, 28. Hebblethwaite v. Peever, 830. Hebdon v. West, 655, 656, 657. Hedges v. Horsfall, 228. Hedgly, Re, 128. Hedley v. Bainbridge, 454. V. Pinkney Co., 343. Heilbut V. NeviU, 74, 458. Heilbutt V. Hickson, 283, 334, 338, 714, 920. Heinekey v. Earle, 684. Heinrich Biom, The, 448. Holder, Ex p., 94. Helling v. Lumley, 984. Helps V. Clayton, 474, 1067. V. Winterbottom, 551, 686, 844. Hemery v. Worssam, 350, 361. Hemming, Ex p., 892. V. Hale, 401. V. Trenery, 703. Hemp V. Garland, 842. Henderson, Re, 106, 107. . ■ V. Australian Mail. Co., 612. V. BarnewaU, 239. V. Comptoir D'Escompte, 1024. V. Folkestone Water Works, 86. V. Henderson, 107, 109. • V. Lacon, 298, 314, 320, 328. • V. RothschUd, 93, 786. V. Royal British Bank, 328. V. Stevenson, 14. v. Stobart, 758, 760, 765, 799. Hendricks v. Australian Ins., 177. Hendry v. Turner, 457. Henfree v. Bromley, 697. Henkel v. Pape, 25. TABLE OF CASES. xliii Henkle ;'. Royal Exchange Ass., 269, 270. Henley v. Soper, 107. Henman v. Dickinson, 703. Henniker v. Wigg, 791. Henning's case, 561. Henty v. Schroder, 983. Henwood v. Oliver, 746. Hepburn, Se, 835. Hepworth v. Heslop, 530. Herbert v. Cooke, 108. V. Salisbury By., 940. V. Sayer, 1104. Hercules Ins., Re, 1013. Hercy v. Birch, 973. Hereford & S. "W. Wagon Co., Se, 411, 524. Herefordshire Banking Co., Se, 947. Heritage v. Paine, 439. Hermann v. Hodges, 964. V. Jeuohner, 626, 674. Hem v. Nicholls, 318. Herries v. Jamieson, 373, 943. Herring v. Dorrell, 544. Hertford v. Boore, 728. Hertford Union v. Kimpton, 143. Hervey Bathurst v. Stanley, 196. Heseltine v. Siggers, 189, 222. Hesketh v. Fawcett, 740, 745. Hesse v. Stevenson, 190. Hetherington v. Groome, 560. . V. Longrigg, 98. Heugh V. London & N. W. Ey., 736. Hewer, Ex p., 190. Hewett V. Barr, 849. Hewitson v. Sherwin, 108. Hewitt, Se, 128. V. Kaye, 1003. Heyman v. European Central Ey., 314, 324. Heys V. TindaU, 444. Heywood v. Mallalieu, 303, 720. V. Pickering, 774. Heyworth v. Henderson, 336. V. Hutchiuson, 91, 335. V. Knight, 148, 164, 395, 397, 437. Hibblewhite v. M'Morine, 116, 117, 121, 222, 974. Hibbs 11. Eoss, 447, 451. Hick V. Eodocanachi, 601. HicMe V. Eodocanachi, 65, 364. Hickman v. Haynes, 691, 913. V. TJpsaU, 73, 84. V. Walker, 848. Hicks V. Mareco, 945. Hidson v. Barclay, 800. Higgen's case, 804, 805, 807, 808, 810, 813. Higgins r. Burton, 329. Higgins V. Pitt, 669. V. Samels, 316. V. Sargent, 946, 950. V. Scott, 851. V. Senior, 179, 230, 240, 413, 421. Higgins and Hitchman, Re, 720, 991. Higgins and Percival, Se, 583. Higginson v. Clowes, 269, 276, 986. ■ ■ V. Simpson, 649. Higgona v. Burton, 21. Higga V. Assam Tea Co., 1013. Highmore v. Primrose, 98. Hill's case, 374. HiU V. Barclay, 971, 979. V. Boyle, 631. V. Browning, 645. V. Buckley, 285, 989. V. Fox, 652, 653, 665. V. Grange, 736. V. Gray, 302. V. Halford, 553. — - V. Patten, 687, 705. V. Perrott, 43. V. Eoyds, 93, 1004. V. .Saunders, 489. V. Smith, 92. V. South Staffordshire Ey., 945, 946, 950. V. Wilson, 8, 51, 156. Hillman r. Mayhew, 748, 960. HOIs V. CroU, 961, 977. V. Street, 80. V. Sughrue, 600. Hilton V. Eckersley, 640. V. Woods, 630. Hinchcliife v. Barwick, 335, 585. Hinde v. Gray, 637. V. LiddeU, 906, 914. V. Whitehouse, 223, 228, 248. Hindlaugh v. Blakey, 1017. Hindley v. Haslam, 49, 870. ■ V. Westmeath, 495, 661. Hindmarsh, Re, 838. Hine v. Campion, 308, 310. Hingston v. Wendt, 450. Hinton r. Acraman, 124. f. Sparkes, 87, 942. Hipgrave v. Case, 962. Hipwell V. Knight, 726. Hire Purchase Co. v. Richens, 672. Hirsohfield v. London & B Ey 264, 294, 318. V. Smith, 699, 701, 737. Hirschman v. Budd, 701, 703. Hirst V. Tolson, 92. Hitchcock V. Coker, 533, 634, 636. V. Humfrey, 563. Hitchman v. Stewart, 61, 62, 946. Hoadw. Grace, 9, 181. xliv TABLE OF CASES. Hoadly v. M'Laine, 230. Hoare v. Graham, 155, 156. f. NiUett, 485, 809. V. Eennie, 570. Hobbs V. Henning, 666. 1). London & S. W. Ry., 900, 903, 923. V. Midland By., 509. Hobday v. Peters, 358, 360, 484. Hoblyn v. Hoblyn, 360. Hobson, Se, 138. . V. Bass, 386. V. Cowley, 686. V. Trevor, 937. Hoby V. Birch, 883. 1). Roebuck, 216, 220. Hooh V. Boor, 823. Hoohster v. Belatour, 750, 751. Hoddel ». Pugh, 1081. Hodgens v. Hodgens, 41. Hodges V. Hodges, 41, 483, 486. . V. Horsfall, 160, 276. V. Litchfield, 924, 930. Hodgkinson v. Pletoher, 496. V. Kelly, 438. Hodgson, Se, 375, 457, 809, 878. V. Anderson, 207, 1014. V. Coppard, 1040. V. Davies, 167. V. Johnson, 212, 253. V. Le Bret, 242. V. Sidney, 1095. V. Temple, 664. V. Williamson, 484, 485, 496, 500. V. Wood, 927. Hodkinson v. London & N. W. Ry., 606, 736. HodsoU V. Baxter, 104. V. Stallebrass, 904. Hodson V. Mochi, 874. Hoe's case, 796. Hogan V. Page, 948. Hogarth v. Latham, 118, 455. V. Millar, 575. t!. Wherley, 389, 783. Hogg P. Skeen, 458, 528. V. Snaith, 394. Hoghton V. Hoghton, 360. Holder v. Soulby, 170. Holdemess v. Eankin, 1101. Holdioh's case, 750. Holding f. Elliott, 152, 159, 421. V. Pigott, 169. Holdsworth «i. Wilson, 930. Hole V. Bradbury, 999. Holford V. Hatch, 1052. V. Parker, 115. HoU V. Hadley, 844. HoUand v. Eyre, 18. Holland V. Holland, 126. V. RusseU, 94, 783. V. Worley, 983. Holliday v. Atkinson, 537. HoUingshead, Se, 862, 864. Hollins V. Eowler, 21, 329, 437, 443. Hollis V. Carr, 121, 199. V. Claridge, 77. V. Palmer, 866, 869, 944. HoUoway v. Berkeley, 1057. V. York, 960. Holman v. Johnson, 664, 671. Holme V. Branskill, 386, 694. . V. G-uppy, 611. V. Hammond, 462, 608, 1084. Holmes, Se, 1006. . V. Bell, 805. V. Blogg, 477. V. Buckley, 1049. ■ V. Eerrison, 843. V. MackreU, 852, 857. V. Mitchell, 231. V. Newcastle Abattoir Co., 507. V. Symons, 890. V. Tutton, 428, 443. V. Wood, 488. Holroyd v. Marshall, 974. Holt, Se, 558. V. Brien, 494, 496, 499. V. Collyer, 172, 188. V. Ely, 72, 95, 421. V. Everall, 656. V. Holt, 1081. V. Ward, 466, 476. Holtby V. Hodgson, 483, 841. HoltzapfEel v. Baker, 598, 599. Holyday v. Morgan, 301, 332. Homersham v. Wolverhampton Waterworks, 513. Homfray v. PothergiU, 973. V. Scroope, 840. Honck V. MuUer, 571, 588, 713. Honduras Ry. v. Lefevre, 431. Honey, i:xp., 377, 379. Houeyman v. Marryat, 16, 148. Hood V. Barrington, 230, 371. «'. Newby, 886, 1092. ■ V. North Eastern Ry., 970. • • V. Oglander, 280. Hooper, i:xp., 213. Se, 498. V. Brodrick, 960. V. Clark, 1047, 1049. V. Exeter, 81. 1). Keay, 790, 793. V. Loudon & N. W. Ry., 414. V. Marshall, 888. V. Smart, 9931 V. Stephens, 859. V. Treifry, 59 TABLE OF CASES. xlv Hooper v. WiUiams, 363. Hope, Se, 641. V. Gibbs, 197. V. Hope, 497, 622. Hopkins v. Grazebrook, 925. ■;;. Logan, 36, 101. V. Presoott, 624, 677. V. Tanqueray, 15. Hopkioson J). Forster, 1021. V. Lee, 381. V. Lovering, 1058, 1099. Hopper, Se, 824. V. Bumess, 61, 449. • V. Eiohmond, 947. Hopwood V. Whaley, 1053. Hordern «). Commeroial Union Ins., 182. Horford v. "Wilson, 444, Horn V. Anglo- Australian Ass., 657. Hornby v. CardweU, 1059. V. Close, 639. V. Lacy, 434, 441. Home, Se, 1034. V. Midland Ky., 902, 923. V. Rouquette, 168, 737. V. Wingfield, 717. Homer v. Tlintoff, 938. V. Graves, 637. Homiblow v. Shirley, S95. Homidge v. Wilson, 1054. Homsby v. Bird, 375. V. Raggett, 651. Homsey Local Board v. Monarch Building Society, 841. Horrooks v. Rigby, 993. Horsey v. Graham, 179, 212. Horsfall v. Fauntleroy, 425. V. Halifax Bank, 1011, 1013. V. Hey, 221. ». Thomas, 301. Horsley v. Price, 574. Hort's case, 684. Horton, Se, 641. V. Riley, 59, 670. V. Sayer, 820. Horwell v. London Omnibus Co., 62. Hosken v. Sincock, 740. Hoskins v. Holland, 1000. Hotham v. East India Co., 579, 580. Hotson V. Browne, 151, 159. Hough V. Manzanos, 414. V. May, 744, 746. V. Wiudus, 136. Houghton V. Kceuig, 120. V, Matthews, 434. Houlder v. Merchants' Ins., 737. Houldsworth v. Evans, 522. V. Glasgow Bank, 319, 328. Houliston 1). Smyth, 495. llouriet v. Morris, 465. Household Fire Ins. v. Grant, 24. Houstown V, Sligo, 812. Hovenden v. Annesley, 834. Hovil V. Pack, 45, 393. How V. Greek, 120. Howard's case, 403. Howard v. Baillie, 391, 395. V. Brownhill, 96, 101. V. Chapman, 783. V. Hopkyns, 937. V. Lovegrove, 931. V. Maitland, 928. 1). Oakes, 1070. V. Patent Ivory Co., 392, 510, 522. V. Shepherd, 1025. V. Steward, 395. V. Wood, 73. ■ V. Woodward, 124, 937. Howarth v. Brearley, 642. Howoutt V. Bonsor, 861. Howden v. Haigh, 669. V. Simpson, 623. Howe V. Hunt, 984. V. Palmer, 247. V. Smith, 88, 249, 924. V. Synge, 678. Howell V. Coupland, 596. V. George, 279, 280. . V. Metrop. Ry., 552, 567. V. Richards, 190. ■ V. Young, 845, 846. Howland v. Norris, 925, 988, 990, 991. Howlett V. Tarte, 812. Howson V. Hancock, 673. Hubback, Se, 1089. Hubbard v. Goodley, 870. Hubbersty v. Ward, 396, 447. Hubbuck V. Helms, 1034. Huber v. Steiner, 832, 833. Hubert v. Moreau, 236. V. Treheme, 235. Suckle V. Wilson, 821. Huckman v. Fernie, 347. Huddleston v. Briscoe, 15. Hudson, Sxp., 629. Se, 3, 218, 531. V. Bilton, 93, 1014. V. Buck, 557. V. Clementson, 173. V. Cook, 718, 991, 1080. V. Ede, 600. V. Eve, 177. V. Fawcett, 943. V. Granger, 425, 434. V. HiU, 573. V. Midland Ry., 605. V. Revett, 114, 115, 116, 705. V. Temple, 726. xItI TABLE OF CASES. Hudson V. Tooth, 188. Hufier V. Allen, 79, 80. Huggins, JExp., 461, 625. Hughes v. Coles, 835. V. Done, 644. V. Graeme, 431, 931, 932, 966. V. Humphreys, 576, 647. — — V. Jones, 992. V. Metrop. Ry., 971. V. Morris, 259. ' V. Paramore, 854. - V. Parker, 718. V. Thorpe, 98. . V. Twisden, 313, 456. V. Wynne, 835, 935. Hughes-HaUett v. Indian Mammoth Co., 62. Hugill V. Masker, 260. Huguenin v. Baseley, 79. Hulkes, Me, 957. Hull and Barnsley Ey., JRe, 1034. Hull V. Pickersgill, 393. HuUe V. Heigh tman, 52. Hulme V. Muggleston, 880. . ■ V. Tenant, 479, 485. Hulse i>. Hulse, 8, 534. Humble ». Hunter, 421, 422, 429. V. Mitchell, 221. Hume V. Bentley, 722. V. Bolland, 97. ». Peploe, 741. V. Pocock, 302, 717. . • V. Somerton, 849. Humfrey i>. Dale, 164, 178, 416. Humphreys v. Green, 269, 554. V. Jones, 854. ■ 1). Piatt, 39. Hunt V. Bate, 37. V. De Blaquiere, 495, 496, 497. V. Great Northern Ky., 646. V. Hecht, 243. V. Hunt, 86, 492, 661, 662. . . V. Massey, 468, 730. V. Silk, 91, 326. V. South Eastern Ky. 683. ■ V. Wimbledon, 515, 517. Hunter, Exp., 924. V. Atkins, 367, 360. V. Daniel, 632. V. Edney, 503. V. Gibbons, 846. . V. Hunt, 60. V. Nockolds, 830. V. Northern Ins., 730. V. Prinsep, 51, 76. V. Walters, 264, 779. V. Toung, 1087. Hunting V. Sheldrake, 127. Huntley v. Sanderson, 844. Hurlbutt and Ohay tor' s Contract, 296 . Hurst V. Great Western Ry., 13. V. Hurst, 689, 934, 936. V. Jennings, 134. V. XJsbome, 573, 574. Husband v. Davis, 779, 780. Husoombe v. Standing, 353. Hussey v. Christie, 448. V. Criokitt, 649. . -v. Horne-Payne, 15, 17, 234, 557, 689. Hutoheson v. Eaton, 166, 414, 436, 818. Hutchings v. Humphreys, 983. Hutchins v. Scott, 275, 699, 702. Hutchinson, Ex p., 20. — V. Gillespie, 108. V. Heyworth, 1014. ■ V. Sturges, 876. V. Tatham, 415. V. Wilson, 364. Hutchison v. Bowker, 17, 165, 173. Huth V. Lamport, 66. Hutley V. Hutley, 630, 632. Hutton V. Bullock, 417, 418, 439. V. Eyre, 56, 799. V. Warren, 164, 169. Hybart v. Parker, 366. Hyde v. Bank of England, 517. . ■ V. Dean of Windsor, 606. V. Skinner, 1044, 1074. f . Warden, 198, 556, 984, 1047. V. Watts, 728. V. Wrench, 30, 31. Hydraulic Eng. Co. v. McHafSe, 729, 901, 916. Hyleing v. Hastings, 855. Hylton V. Biscoe, 983. Hyman v. Nye, 605. Ibbetson, Exp., 1008, 1100, 1101. Ibbett V. De la Salle, 39. Ida, The, 449. Idle V. Thornton, 572. Iggulden V. May, 965, 1044. lUidge, Re, 128, 139, 1088, 1089. Imperial Bank v. London & St. Kath. Docks, 248, 384, 415, 1029. Imperial Credit Ass. v. Coleman, 957. Imperial Gas Co. v. London Gas Co., 846. Imperial Land Co., Re, 411. Imperial Marine Ins. v. Fire Ina. Corp., 169. Imperial Mercantile Credit v. Cole- man, 359. Imperial Wine Co., Re, 750. Inoe Hall Co. v. Douglas Co., 882. Inchbald v. Western Neilgherry Tea Co., 47. TABLE OF CASES. xlvii India & London Aes., Me, 685. Ingham v. Primrose, tl8. Ingle V. Richards, 848. Ingledew v. Douglas, 475. Inglis ». Battery, 15, 153, 155, 187, 600. V. Stock, 32, 260. Inman v. Stamp, 212. Innell v. Newman, 802. Innes v. Dunlop, 1000. i: Munro, 155. Inns of Court Hotel, JRe, 510. Insley v. Jones, 951. International Contract Co., Se, 413, 954. International Ins., Se, 685. lonides ». Pacific Ins., 265, 270, 275, 341, 343. V. Pender, 339, 341, 345, 654. Ireland v. Livingston, 397, 440. Irish, Se, 634. Imham v. Child, 158, 288. Irvine v. Union Bank of Australia, 521, 522. V. "Watson, 416, 419, 424. Irving, Se, 1008, 1101, 1102. V. Manning, 654, 941. V. Veitch, 98, 859. Irwin J). Sanger, 641. Isaac, He, 479, 482. Isaacs V. Green, 369. V. Royal Ins., 730. Isaacson v. Harwood, 103, 126, 197, 806. Isherg V. Bowden, 428, 873, 874. Isherwoodi;. Oldknow, 1055. V. Whitmore, 714, 743. Israel v. Douglas, 1014. Ivens V. Butler, 1067. V. Elwes, 197. Izon V. Gorton, 598. Jack V. Kipping, 882. Jackman v. Mitchell, 629, 669. JacJtson's Sale, He, 726, 993. Jackson, Ex p., 629. , Re, 376, 780. V. Allaway, 570. V. Bridge, 1083. V. Cobbin, 539. V. Davison, 629. v. Duchaice, 668. V. Everett, 135. V. Hudson, 422. 1!. Jackson, 822. V. EJniger, 376. V. Lomas, 669. V. Lowe, 226, 227, 233. Jackson v. North Eastern Ry., 197, 806, 1095. ■ V. Ogg, 844. V. Turquand, 18. V. Union Ins., 574, 602, 614. Jackson and Oakshott, Se, 584. Jacob V. Hart, 704. V. Lindsay, 778. Jacobs, Exp., 893. V. CreditLyonnais, 175, 176, 614. V. Fisher, 99, 103. 1). Richards, 502. Jacomb v. Harwood, 782. Jaoquet v. Jacquet, 835. Jakeman v. Cook, 638. James, Ex p., 86, 1011. V. CMld, 792. V. Cotton, 53. v. Emery, 382. V. Griffin, 243. V. Isaacs, 786. V. James, 826. ■ V. Kerr, 360, 630. . ■ V. Lichfield, 303, 992. v. Rice, 213. V. Shore, 223. 41. Smith, 240, 252. V. Spicer, 1088. V. Vane, 740. V. Williams, 768. Jameson v. Brick and Stone Co., 1104. V. Swainstone, 446. Janes v. "Whitbread, 371. Japp V. Campbell, 451. Jaques v. MOlar, 231, 732, 926. Jardiue v. Payne, 104. Jarrett v. Hunter, 230, 371. Jarvis, Exp., 286. Jay, Ex p., 629. V. Robinson, 481, 483, 1069. Jaynes ji. Hughes, 115, 731. Jeakes v. White, 716. Jebsen i\ East India Docks, 907, 908. Jee V. Thurlow, 661, 662. Jeffoock's Trusts, Re, 506. JeflEerys v. Fairs, 279, 596. V. Jefferys, 124, 529, 536. JefEreson v. Morton, 126, 136. Jeffrey v. Neale, 67. Jeffreys v. Gurr, 515. Jeffryes v. Agra Bk., 1012. Jeffs v. Woods, S77. Jegon V. Vivian, 75. Jell V. Douglas, 376. Jenkins v. Briaut, 127. V. Hutchinson, 430. V. Morris, 456, 502. V. Perry, 956. V. Power, 666, 777. xlviii TABLE OF CASES. Jenkins v. Tucker, 57, 474. Jenkinson, He, 1101. Jenks V. Turpin, 651. Jenner v. Jenner, 190. v. Morris, 494, 498, 870. V. Smith, 223, 248. V. Turner, 659. Jennings v. Broughton, 316, 324. r. Brown, 540. V. Johnson, 633, 641. V. Rigby, 139. V. Eundall, 470. V. Throgmorton, 664. Jervis v. Berridge, 234. V. Wolferstan, 1087. Jesse V. Roy, 52. Jessel ji. Bath, 186, 447. Jessopp V. Lutwyche, 651, 665. Jeudwinei;. Agate, 124, 936. Jewry v. Busk, 3. Jewsbury v. Mummery, 108, 140. V. Newbold, 493, 499. Johannesburg Hotel Co., Se, 775. Johns V. James, 786. Johnson, Exp., 528. Ee, 785, 1086. Johnson and Tustin, S.e, 717. Johnson v. Asenton, 402. V. Baker, 115. V. Blenkinaopp, 171. V. Burges, 1086. V. Credit Lyonnais, 435. V. Dodgson, 226, 234, 235, 243. V. Gallagher, 479, 484. ■ ■ V. Goslett, 87. V. Johnson, 88. V. Lancash. and Yorsksh. Ey., 917. V. Lansley, 652. V. Legard, 546. V. Lucas, 489. V. Lyttle's Agency, 867. V. Macdonald, 572. V. Machielson, 176. V. Pye, 470. V. Raylton, 167, 337, 714, 999. V. Eobarts, 838. V. RoyalMaUSteamPacketCo., 66,68. V. St. Peter's, 1054, 1058. V. Shrewsbury & B. Ry., 968, 969. 1!. Skafte, 66, 891. V. Sumner, 495, 496. V. Wild, 60. Johnston v. Hogg, 616. V. Kershaw, 397, 440. V. Nicholls, 9. V. Usborne, 434, 436, 437. Johnstone v. Cox, 1006, 1009. Johnstone v. Hudleston, 733. V. Mappiu, 212, 259, 1002. V. Marks, 475. V. Milling, 751, 752. Joiner v. Weeks, 908, 929. Joint Stock Discount Co. v. Brown, 508. JolifEe V. Baker, 89, 296, 989. Jolly V. Eees, 494. V. Young, 172. Jonassohn v. Young, 571. Jones, Exp., 470, 471,490. Jones, Re, 641, 1089, 1090, 1105. Jones V. Adamson, 600. ■ V. Arthur, 744. V. Ashbumham, 205, 532, 543, 544. V. Barkley, 672. V. Bone, 1062. V. Bright, 336. - — ■ V. Broadhurst, 787. V. Carter, 583, 997. V. Clifford, 284, 718. V. Cuthbertson, 488, 874, 1065. V. David, 757. ■ V. Edney, 720. V. Flint, 214, 215. V. Foxall, 957, 958. V. Giles, 647. V. Gordon, 528, 629. V. Green, 934. V. Harris, 486. V. Heavens, 639, 937. V. Holm, 573, 602. V. Hough, 909. V. How, 592, 618. . • V. Hughes, 865. ■ V. Huxtable, 645. . V. Jones, 178, 254, 659, 705, 817, 979. V. Just, 332, 333, 336. • V. Keen, 305. V. King, 927. V. Lees, 635. V. Littledale, 152, 159, 416, 421, 436. V. Lloyd, 682. V. Marshall, 644. V. Merioneth Bg. Soc, 360, 627, 628. V. Morgan, 591. t>. Morris, 66. V. Mossop, 875. V. Nanney, 240. ■ V. Nicholson, 192. V. North, 640, 973. V. Orchard, 40. V. Padgett, 337, 714. V. Pope, 143, 831. v. Provincial Ins., 345, 346. TABLE OF CASES. xlix Jones V. Pugh, 398. V. Eimmer, 280, 317. ■ V. Kobinson, 382. V. Eyde, 89. V. Ryder, 100, 856. V. St. John's Coll., 658, 699, 611, 683, 868, 933. , V. Selby, lOOi. V. Simes, 1076. V. Tanner, 96, 205. V. Thompson, 552. V. Victoria Graving Dock Co., 147, 148, 226, 227, 235. V. "Waite, 539, 647, 661, 677. V. Watts, 722. V. Williams, 931. Jones-Lloyd, £e, 775. Jordan v. Sawkius, 690. Jorden v. Money, 3, 5, 212. V. Norton, 17, 396. Joseph V. Lyons, 974. Josling V. Irvine, 912. V. Kingsford, 336, 338. Joule V. Taylor, 763, 910. Jourdain v. Wilson, 1048. Joyce V. Eealm Ins. Co., 186. Joyner v. Weeks, 899. Joynes v. Statham, 267, 269. Judd V. Green, 356, 1012. Judson V. Bowden, 566. Julian V. Shobrooke, 553. Julius V. Bp. of Oxford, 622. Jung V. Phosphate Co., 382. Kaiu V. Old, 16. Kaltenback v. Lewis, 417, 436. 1!. Mackenzie, 564. Karnak, The, 449. Kathleen, The, 61. Kay V. Meld, 177, 600. V. Wheeler, 602. Kaye v. Brett, 784. V. Button, 36, 642. V. Waghorn, 692. Keane v. Boycott, 466. Kearley v. Thomson, 83, 629, 672, 673, 676. Kearou v. Pearson, 593, 600. Kearslake v. Morgan, 768. Kearsley v. Cole, 801. -^ V. Oxley, 1053. Keat V. Allen, 660. Keates v. Lord Cadogan, 302, 303, 304. V. Lyon, 1060. Keats V. Keats, 497. Keay v. Fenwiok, 394, 424, 771. Keech v. Hall, 1055. Keegan v. Smith, 496. Keenan v. Handley, 645. Keene v. Beard, 1021. V. Biscoe, 939. V. Keene, 944, 947, 955. Keightley v. Watson, 378, 380. Keir V. Leeman, 627, 628. Keith V. Burrows, 364, 1027, 1052. Kekewich v. Manning, 6, 631, 1002. Kell V. Nainby, 370. V. Nokes, 962. Kellner v. Le Meaurier, 648. Kellook V. Enthoven, 890. Kelly V. Sootts, 452. V. Solari, 83, 85. V. Webster, 212, 213, 256. Kelner v. Baxter, 392, 393, 523. Kelsey v. Dodd, 362, 369, 684. Kelson v. Kelson, 535. Kemble v. Farren, 933, 938, 939, 941. V. Kean, 968. Kemp, Sxp., 1101. V. BaUs, 763, 786. ». Bird, 1047. V. Falk, 1029. V. Finden, 60. V. HaUiday, 65. V. Rose, 558. V. Sober, 960. V. Waddingham, 139. V. Watt, 760. Kempsou v. Ashbee, 359. V. Boyle, 18. Kendall). Wood, 72, .82, 468. Kendall r. Hamilton* 372, 373, 375, 416, 420, 809. V. London & S. W. Ey., 604. Kennaway v. Treleavan, 12. Kennedy v. Brown, 37, 100. V. Green, 779. V. Lee, 15. V. Panama Mail Co., 287. Kennerly v. Nash, 706. Kenuey v. Wexham, 964. Kensington Station Act, He, 552, 840. Kensington v. Inglis, 648. Kent's case, 775. Kent V. Freehold Laud Co., 296, 298, 299, 314, 328. V. Thomas, 889. Kent Tramways Co., Se, 624. Kenworthy v. Schofield, 223, 228, 237, 240. Keppell V. Bailey, 1040. Kern v. Deslandes, 1027. Kemagan v. Williams, 507. Kerr's Policy, Ee, 949, 955. Kerrison v. Cole, 679. 1 TABLE OF CASES. Kershaw v. Cox, 704. V. Matthews, 1084. V. Ogden, 241, 242, 260. Ketley's case, 471. Kevau v. Crawford, 545, 766. Key V. Eradshaw, 658. V. Cotesworth, 185. Keyes v. Elkins, 798, 800. Kibble, Exp., 141, 467, 468. - — ■ V. Gough, 242. Kidd V. Boone, 125, 126, 805, 806. V. Walker, 953. Kiddell v. Bumard, 332. Kidderminster v. Hardwiok, 7, 613, 514 515 Kiddiil V. Famell, 408. Kiddle v. Lovett, 333, 919. Kidner v. Keith, 115. Kidston V. Empire Ins. Co., 172. Kill V. HoUister, 819. Kilvert's Trusts, 182. Kimber v. Barber, 296, 411, 430. Kimberley v. Dick, 558. V. Jennings, 983. King's Leaseholds, Re, 204, 232, 546. King ». Alstone, 73. ■ V. Basingham, 488. V. Bellord, 387. v. Dickeson, 1062. V. George, 192. V. GiUett, 682, 686. V. Hamlet, 356. . V. Hoare, 140, 372, 807, 808. V. Jones, 845, 1059, 1082. V. King, 326. V. Lucas, 481. V. Sears, 547. V. Thorn, 1077, 1078, 1085, 1086. V. Wigston, 474. . V. Wilson, 727, 989, 992. V. Zimmerman, 707, 708. King, The v. Dodderhill, 585. V. Flintan, 497. V. Hampreston, 585. V. Haughley, 618. . V. Mitcham, 585. V. Northwingfield, 672, 677. —^ — V. Peck, 1083. V. Skiplam, 730. V. Southerton, 351. V. Whitnash, 192. Kingdon v. Nottle, 845, 926, 927, ' 1059, 1082. Kingsford v. Merry, 327, 328. Kingsman v. Kingsman, 93, 467, 469, 1065. Kingston's case. Duchess of, 131, 813. Kingston, Ex p., 838. Kingston v. Mcintosh, 960. V. Pierrepoint, 626. . V. Preston, 565. Kingston-upon-HuU v. Fetch, 148. Kington v. Kington, 559, 742, 762. Kinnaird v. Trollope, 740, 743. V. Webster, 789. Kinnerley v. Hoesaok, 868, 873. Kinnersley v. Mussen, 133, 134. Kintrea v. Preston, 722. Kirby v. Marlborough, 789. Kirk, Exp., 797. V. Bell, 399. V. Blurton, 454. V. Bromley Union, 257, 569, 964. V. Todd, 1075. . V. Unwin, 274. Kirkham v. Marter, 209. Kirkpatrick v. S. Austr. Ins., 788. Kirton ». Braithwaite, 743, 747, 785. V. ElUott, 471. TCirwan r. Kirwan, 686. Kisch V. Central Ey. of Venezuela, 298. Kish V. Cory, 418. Kitchen v. Bartsch, 1104. V. Buckley, 382. V. Shaw, 192. Kitchin v. Hawkins, 788. Kleinwort v. Cassa Marittima, 449. • V. Shepard, 192, 616. Kloebe, Re, 1087. Knapman v. Wreford, 878. KnatchbuU v. Grueber, 980, 990. Knight's case, 1056. Knight, Ee, 203. V. Barber, 149, 222. i>. Bowyer, 633. V. Burgess, 1097. V. Cambers, 652, 665. V. Clements, 703. • V. Faith, 564. . V. Hunt, 669. Knights V. Quarles, 1076, 1080. Knill V. Williams, 704. Knowles v. Houghton, 076. ■ V. MicheU, 98. Knowbnan v. Bluett, 219, 255, 256. Knox ('. Bushell, 475, 498. V. Gye, 834, 838. Knye v. Moore, 660. Kong Magnus, The, 834. Kopitoff V. Wilson, 343. Koster v. Eason, 446, 447. Kreeft v. Thompson, 448.' Krehl V. Burrell, 960. V. Central Gas Co., 1093. Kreuger v. Blanck, 713. Kronheim r. Johnson, 228, 1002. Kymer v. Suwercropp, 424 . TABLE OF CASES. li Latouchere v. Dawson, 634. V. 'Whamoliffe, 460. Lacey v. HiU, 438, 790. Laoon v. Hooper, 733. Ladd V. Lynn, 498. Laddy v. Peard, 430. Lady well Mining Co. v. Brookes, 359, 411. Laiue, Ee, 377. Laing v. Chatham, 870. . V. Fidgeon, 333, 336. V. Hollway, 172, 732. Lainson v. Tremere, 131. Laird v. Birkenhead JEly., 615. ». Km, 567, 579, 924. Lake v. Craddock, 217. Lakeman v. Mountstephen, 206. Lamare v. Dixon, 295, 304, 981. Lamb's case, 592. Lamb, Exp., 728. — V. Brewster, 67, 157. ■ ■ V. Bruce, 274. ». Biince, 40. V. Great Northern By., 646. Lambert v. Taylor, 465. Lambum v. Cruden, 62. Lamert v. Heath, 90. Lamine v. Dorrell, 74. Lampleigh v. Brathwait, 8, 37. Lampon v. Corke, 778. Lamprell v. Billerieay Union, 513, 515, 518, 792. Lancashire & Torks. Ry. v. Gridlow, 922, 952. V. Greenwood, 81. Lancaster Bk., Exp., 836. Lancaster v. De Trafford, 985. •. • V. Sharpe, 1026. Land Credit Co., Ee, 521. V. Permoy, 373. Landowners' Co. o. Ashford, 521. Lane, Re, 858. V. Bennett, 840. V. Burghart, 207. V. Cotton, 23. V. Hill, 98, 908. V. Ironmonger, 493. V. Newdigate, 962, 971. Lang, Exp., 889. V. Gale, 732, 733. Langford v. Taylor, 250. Langham v. East Wheal Mining Co., 20, 299, 317. Langhorn v. Cologan, 698. Langton v. Carleton, 585. V. Goole, 274. V. Hughes, 664. . V. Waite, 438. Larios v. Gurety, 910, 964. Lassence v. Tierney, 259. Latch i>. Latch, 1073. V. Wedlake, 162, 379. Latouche v. Latouohe, 485, 856, 866. Latter v. Braddell, 351. Laughter's case, 587, 617. Laugh ton v. Taylor, 815. Laurie v. Soholefield, 181. Laveroni ». Drury, 602. Lavery v. Pursell, 215, 230, 258, 963. V. Turley, 250, 254, 757. Lavie v. Phillips, 490. Law V. Garrett, 823, 824. V. Law, 624. ■ V. London Indisputable Co., 655, 657. V. Redditch, 933, 938. V. "Wilkin, 41. Lawes v. Lawes, 683. V. Purser, 90. Lawrance v. Norreys, 847. Lawrence v. Knowles, 1096. V. Walmsley, 663, 694. Lawrie v. Lees, 113, 985. Laws V. Rand, 773. Lawson v. Wright, 62. Lawton v. Campion, 289. V. Elmore, 322. Laycook v. Pickles, 100, 102. Laythoarp v. Bryant, 7, 236, 532. Layton v. Pearce, 586, 588. Lazarus v. Andrade, 974. = V. Cowie, 787. Lea V. Whitaker, 89, 942. Leach V. Mullett, 719. Leadbitter v. Parrow, 422. Leader v. Moody, 960, 983, 1040. Leak J). Driffield, 481. Lean v. Sohutz, 490. Learoyd v. Brook, 92, 577. Leask v. Scott, 1029. Leatham v. Amor, 974. Leather Cloth Co. v. Hieronymus, 233, 692, 711, 715, 737. V. Lorsont, 636. Leathley u. Spyer, 181. Leavesley, Re, 137, 503. Lebeau v. Gteu. Steam. Net., 922, 1030. Le Blanch v. Granger, 961. Leblanche v. London & N. W. By., 13, 906. Le Bret v. Papillon, 464. Lechmere v. Eletcher, 808, 854, 856. Leduo v. Ward, 603, 1026. Lee, Exp., 648. V. Abdy, 34, 1000. V. BuUen, 447. V. GaskeU, 216. V. Griffin, 50, 222. V. Jones, 347, 348. d2 Ui TABLE OF CASES. Lee V. LancasMre and T. Ry., 776. v. Lester, 123, 764. V. Muggeridge, 636. V. Nixon, 378. V. NuttaU, 1089. • -v. Page, 53, 819. V. Eisdon, 216. V. Sankey, 782. «. Wilmot, 853. Lee and Chapman's Case, 876, 883. • and Hemingway, Me, 818. Leech v. Sohweder, 977, 1039; Leeds v. Burrows, 868. V. Cheetham, 598. V. Lancashire, 155. Leeds Bank v. Walker, 89, 702. Leeds Building Co. v. Shepherd, 380. Leeds E.y. v. Feamley, 471. Leeke's case, 22. Leeming v. Murray, 1094. Lees V. Patterson, 80. V. Whitoomb, 7, 230. Leftly V. MUls, 723. Legal V. MiUer, 690. Legg V. Goldwire, 272. Leggott V. Barrett, 148, 634, 972. V. Great Northern Ry., 812. «. Metrop. Ry., 988. 1}. Western, 137. Legh V. Legh, 802, 997. Lehmann v. M'Arthur, 556. Leicester v. Rose, 669. Leideman v. Schultz, 173. Leifohild's case, 535. Leigh, Se, 469. V. Dickeson, 42, 59, 1057. V. LiUie, 588, 589, 711, 934. V. Paterson, 687, 724, 753. . V. Thornton, 828. Leighton v. Wales, 636. Lekeux v. Nash, 1058. Le Loir v. Bristow, 868. Lemaine v. Staveley, 236. Leman i>. Fletcher, 643. V. Houseley, 642, 643. • V. Yorkshire Waggon Co., 1102. Lemere v. Elliott, 99, 103. Le Mesurier v. Vaughan, 276, 341. Leming V. Snaith, 712. Lempriere v. Lange, 470, 471. Lennard v. Robinson, 413. Lennox, Exp., 134. Lenzberg's Policy, Re, 669. Lepine, Re, 767, 1087. Leroux v. Brown, 176, 252. Leslie, Ex p., 628. , Re, 41, 59, 68. V. Fitzpatrick, 467. V. Tompson, 992, 989, 993. Lester v. Foxcroft, 258. Lester v. Garland, 729. Lethbridge ff. Mytton, 927. Levasseur v. Mason, 138, 139. Leverson v. Lane, 458. Levita's case, 22. lievj V. Green, 12, 18, 48, 712. V. Walker, 972. v. Yates, 594. Lewes !;. Ridge, 1058. Lewin v. Wilson, 863. Lewis, Re, 641. V. Bond, 979. V. Brass, 148. V. Bright, 622. ■ V. Campbell, 38, 54, 55, 69. V. Buncombe, 831. v. Freke, 956. V. Great Western Ry., 13, 173. V. James, 966. V. Lee, 490. ». Leonard, 886. . 1). McKee, 1027. . ». Nicholson, 15, 414, 417, 431. V. Peake, 918, 930. V. Ruoker, 655. Lexington v. Clark, 252. Leyland v. Ilhngworth, 297. Leyman v. Latimer, 465. Lichfield Union v. Greene, 771. Lickbarrow v. Mason, 1024. Lidderdale v. Montrose, 625. Lidgett V. Secretan, 654. Lievesley v. Gilmore, 825. Lightfoot V. Heron, 505. V. Tenant, 664, 667. Lightly V. Clouston, 43. Lilley v. Douhleday, 900. V. Rankin, 652. Lilly V. Hays, 93, 632, 1015. V. Smales, 932. Lillywhite v. Devereux, 244, 245. Lindenau v. Deshorough, 345. Lindley v. Laoey, 163. Lindo V. Lindo, 797. Linden v. Hooper, 72, 80. Lindsay v. Cundy, 21, 76, 278, 329. Lindsay Petroleum Co. v. Hurd, 296, 324, 326. Lindus V. Bradwell, 422, 488, 499. V. Melrose, 423. Line V. Stephenson, 199. Linnegar i'. Hodd, 540. Linsell V. Bonsor, 858, 865. Linton v. Linton, 889. Lintott's case, 950, 952. Lishman v. Christie, 448, 1029. IK Northern Marine Ins., 342. Lister, Re, 653, 665. !■. Hodgson, 530. !'. Stubbs, 409, 410. TABLE OF CASES. liii Lister v. Van Haansbergen, 418. Litchfield v. Greene, 7B9. Litt r. Martindale, 72. LittlechQd v. Banks, 742. Littler v. Holland, 692. Liver Alkali Co. v. Johnson, 593, 603. Liverpool Adelphi Ass. v. Fairhurst, 486. Liverpool Borough Bank v. Eccles, 236. V. Walker, 809. Liverpool Corn Trade v. London & N. W. Ky., .82. Liverpool Credit Co. «. Hunter, 110, 363. Liverpool Stores Ass., Re, 398. Liversidge v. Broadbelt, 1014. Livingston v. Kalli, 822. Livingstone v. Whiting, 766. Lizzie, The, 449. Llaneliy Ey. v. London & N. W. Ry., 535, 581. Llewellin, Re, 78. Llewellyn v. Llewellyn, 543. . ■ V. Rutherford, 972. ■ V. Winokworth, 389. Lloyd V. Ashby, 454, 455, 458. r. Banks, 1008. V. Burrup, 96, 142. V. Collett, 728. V. Crispe, 87, 592. V. Dimmack, 893, 904, 1059. V. Fleming, 1033. V. Guihert, 66, 174, 175, 176, 177, 449, 738. V. Johnson, 664. :;. Learing, 967. ■ V. London C. & D. Ry., 621, 960. V. Pughe, 488. Lloyd Edwards, Re, 951. Lloyds V. Harper, 368, 1078. Llynvi Coal Co., Exp., 1100. Loadt). Green, 295, 328, 1102. Loane v. Casey, 1089. Lobb V. Stanley, 234, 236, 856. Lock );. Furze, 200, 898, 928. Lockett V. Nicklin, 151, 157, 160, 234, 241, 724. Lockhart v. Falk, 418, 933. Lockyer i'. Ferryman, 812. Loder v. Kekule, 912, 919, 920. Lodge V. Dioas, 760. LofEt V. Dennis, 598. Logan V. Hall, 1060. V. Wieuholt, 937. London Ass. v. Mansel, 345. London Bk. of Australia v. Lempriere, 485. V. White, 957. London & Birmingham Bk., Re, 551. London & Birmingham Ry . v. Winter, 163, 254, 269, 516, 980. London & Bombay Bk., if«, 371, 485. V. Narraway, 875. London & Brighton Ry. v. Watson, 44. London Celluloid Co., Re., 775. London C. & D. Ry. v. S. E. Ry., 821, 943, 944, 960, 951, 955. London Commiss. of Sewers v. Gel- latly, 812. London & County Bk. v. Groome, 77, 1021. V. Loudon & Hate Bk., 76, 1035. . V. RatoHfPe, 790. V. Terry, 789. London Dock Co. v. Siimot, 512. London Financial Ass. v. Kelk, 507, 508. London Founders' Ass. v. Clarke, 87, 90, 659. London Gas Co^ v. Chelsea, 666. London Guarantee Co. v. Fearnley, 567. London Hotels Co., Re, 954. London & Leeds Bk., Re, 313, 328. London, Mayor of v. Cox, 34. V. Southgate, 963, 969, 983. London & N. W. Ry. ii. Buckmaster, 213. V. Evershed, 81. V. Glyn, 657. V. Price, 508. London & Prov. Bankf. Bogle, 1069. London School Board v. Wright, 43, 143. London & S. W. Bk., Exp., 399. London & S. W. Bk. v. Wentworth, 118. London & S. W. Ry. v. Blackmore, 797. V. Flower, 561, 562. ». Gomm, 1038, 1063. London & Staffs. Bk., Re, 769. London & Stafford Ins., Re, 317. London Steamship Ins. v. Grampian Co., 63. London Syndicate v. Lord, 98, 104. London Tramways Co. v. Bailey, 558, 821. London Wharf Co., Re, 952. London cfe Yorkshire Bank v. Pritt, 124, 937. Long 1). Bowring, 937. V. GrevUle, 858. V. Millar, 160. )). Ovenden, 966. Longohamps v. Kenny, 67. Longdendale Cotton Co., Re, 976, liv TABLE OF CASES. Longman v. East, 817. Longridge v. Dorville, 643. , Lord V. Hall, 402, 499. V. Midland Ry., 13. V. Stephens, 982. Loring V. Davis, 397, 438. V. Warburton, 80. Lorymer v. Smith, 714. Lound v. G-rimwade, 627, 677. Lovatt V. Hamilton, 672. Lovell V. London C. & D. E,y., 606. V. Walker, 479, 1067. Lovelock V. Franklyn, 580, 749. Loveridge v. Cooper, 1006. Levering, Mxp., 1101. Lovesy v. Smith, 360. Low V. Bouverie, 4, 310, 311, 312, 1010. Lowe V. Dixon, 61. V. Fox, 698. . V. London & N. W. Ry., 516. V. Peers, 658, 934, 936. V. Peskett, 1089. V. Walter, 585. Lowes V. Lush, 978. Lewis V. Eumney, 850. Lowndes i>. CoUens, 947, 955. V. Lane, 316. Lowrey v. Barker, 52, 1100. Lowry i>. Bourdieu, 83, 86, 672, 674, 676. Lowther v. Heaver, 204, 788. V. Lowther, 966. Lubbock, Exp., 954. V. Tribe, 69, 99. Luoan, Be, 124, 530, 985. Lucas V. Bristow, 173. V. Comerford, 969, 1046, 1053. V. De la Cour, 420, 421. V. Dicker, 1093. V. Dixon, 225, 226. • V. Godwin, 45, 46. V. Harris, 625. . 0. James, 17, 30, 187, 236, 304. V. Jones, 97, 766. V. Wilkinson, 786, 787. Lucena v. Crawford, 393, 653, 654. Lucy, Bxp., 543. i>. Levington, 927, 1082. 4>. Mouflet, 338, 714. Ludbrook «. Barrett, 558. Luddy V. Peard, 306, 401. Luders v. Anstey, 211, 545. Ludlow V. Charlton, 512, 513. Luke 1). Kensington Hotel Co., 162. Luker v. Dennis, 334, 336, 1048, 1062. Lukey v. Higgs, 984, 1062. Lulham, Re, 546. Lumley v. Gye, 368. — V. Musgrave, 944. Lumley v. Wagner, 961, 968. Lumsden's case, 472. Lury «. Pearson, 823. Lush's Trusts, 487. Lutsoher v. Comptoir d'Esoompte, 1028. Luxmore v. Eobson, 929. Lyall V. Edwards, 795. Lybbe v. Hart, 1047. Lyde v. Mynn, 964. Lydney Iron Co. v. Bird, 359, 411. Lyell V. Kennedy, 175, 393, 630, 837. Lyle V. Richards, 179, 182, 185. Lynch, Exp., 470. V. Dunsford, 340, 341. Lynu V. Bruce, 757. Lynne's case. Mayor of, 617. Lyon's Trusts, Re, 190. Lyon V. Johnson, 823. Lyons ». HofEnung, 1096. Lysaght ». Edwards, 988, 1080, 1081. Lysney v. Selby, 316. Lyth V. Ault, 760. Lythgoe V. Vernon, 75. Lyttleton v. Cross, 1087. Maber v. Maber, 776, 859, 860. Maberley v. Robins, 88. V. Sheppard, 242, 246, 247. M'Andrew v. Chappie, 673. Macartney v. Garbutt, 463. McBain ». Wallace, 1101. Macbeath v. Haldiman, 417. Macbryde v. Weekes, 323. McCabe v. Bk. of Lreland, 810. M'Call V. Taylor, 363. McCanoe v. London & N. W. Ry., 921. McCartan v. N. E. Ry., 13, 605. McCawley v. Eurness Ry., 605. McClatchie v. Haslam, 360, 628. M'Clean v. Kennard, 371, 380, 608, 1084. Macclesfield v. Davis, 966. McClure v. Dunkin, 936, 948, 953. M'Combie v. Davies, 435. McConnel v. Murphy, 187, 195, 712. McConnell v. Hector, 464. Maccord v. Osborne, 468. McCuUooh, Exp., 895. Macdonald !>. Carington, 871, 877, 1086. . V. Jacquah Mining Co., 871. V. Law Union Ins., 119,346, 370. V. Longbottom, 180. V. Whitfield, 60. Macdougall v. Gardiner, 518. 1'. Robertson, 406. TABLE OF CASES. Iv McDowall's case, 760. McEntire v. Potter, 1093. MoEwan v. Orombie, 871. M'Ewen's case, 890. Maofarlane's case, 888. Maofarlane v. Griaunooopulo, 424. V. Lister, 78, 1013. V. Norris, 871, 879, 881. McG-owan v. Dyer, 318. V. Middleton, 870. V. Smith, 1005, 1006. Maogregor v. Deal Ey., 509, 520. V. Maogregor, 218, 219. V. McGregor, 492, 661. M'Henry v. Da-ries, 485. V. Lewis, 815. Mollwraitli v. Green, 764. M'lutosli 1). Great "Western Ey., 558. Mclntyre «. Belcher, 197, 612. V. MiUer, 787. M'lver V. Eiehardson, 21. Mackay, Sxp., 629. V. Commercial Bank, 318. V. Dick, 566, 579. Mackenna v. Partes, 53. Mackenzie, Ex p., 883. V. British Linen Co., 392, 627. V. ChQders, 1038, 1060. V. Coulson, 16, 270, 273, 343. V. Hesketh, 266, 993. V. Whitworth, 341, 342. McKewan's case, 61. McKewan v. Sanderson, 629, 669. Maokie v. Herbertson, 546. Maokill V. Wright, 576. M'Kinnell v. Eobinson, 665. MoKinnon v. Armstrong, 880. Mackuitosh v. Marshall, 317. ■ ■ V. Trotter, 215. Maolae v. Sutherland, 454, 455. M'Laren v. Baxter, 369. McLean's case, 411. McLean v. Clydesdale Bk., 1021. V. Dunn, 237, 391. V. McKay, 1062. Maclure's case, 750. Maclure, Exp., 197, 904. McMahon v. Burchell, 877. ». Field, 900, 923. M'Manus v. Bark, 538, 686, 758. McManus v. Cooke, 215, 258, 259. McMurray v. Spioer, 179, 232, 727, 728. McMyn, Re, 386, 474. Macnee v. Gorst, 436. McNeUage v. HoUoway, 488. MoNiell's case, 324. McPherson v. Watt, 306, 430. M'Queen v. Earquhar, 989. McEae, Re, 375. M'Swiney v. Eoyal Exchange Ass., 342. Maddever, Re, 834. Maddison v. Alderson, 3, 6, 38, 251, 254, 257, 259. Madeley v. Booth, 718, 991. Madell v. Thomas, 191. Madrazo v. Willes, 623. Magdalena Nav. Co. v. Martin, 462. Magee v. Atkinson, 416, 436. V. LaveU, 179, 186, 190, 191, 942. Maggi, Re, 140. Magnay v. Edwards, 381, 1042. Magnus v. Bk. of Scotland, 810. ■ V. Queensland Bk., 782. Mahony v. East Holyford Mining Co., 521. V. Kekule, 417. Maillard v. Argyll, 769. V. Page, 155, 156. Main's case, 580, 749. Mainprice v. Westley, 307, 404. Mainwaring v. Brandon, 931. V. Leslie, 495. V. Sands, 497. Mair v. Himalaya Tea Co., 969. Maitland's case, 472. Maitland v. Chartered Bk. of India, 12. MaMn v. Watkinson, 561, 562. Malcolm v. Scott, 93, 1014. Maiden v. Fyson, 930. Malins v. Freeman, 265, 280, 505. MallaUea v. Hodgson, 668, 669. Mallam v. Arden, 587. Mallan •(-. May, 187, 188, 633, 636, 638. Mallett V. Bateman, 209. MalUng V. Graham, 695. Malpas V. London & S. W. Ey., 152. Maltby v. MurreUs, 561, 843. Mammoth Co., Be, 834. Manby v. Manby, 849. V. Scott, 494. Manchester and London Ass., Re, 685. Manchester and Oldham Bank, Re, 117. Manchester S. & L. Ey. v. Brooks, 872. V. Brown, 605. V. Denaby Coll., 81. V. North Wagon Co., 191, 777. Manchester Warehouse Co. v. Carr, 304, 662, 569, 698, 599. Manderf. Faloke, 1061. Mangles ». Dixon, 1011. Mann's case, 472. Mann r. Nunn, 163, 216, Ivi TABLE OF CASES. Manners v. Johnson, 903, 909, 960, 962, 970, 1062. Manninpr, Se, 841. V. Phelps, 830. V. Purcell, 651. Mansel v. Norton, 1047. Mansell v. Burredge, 379. Manser v. Back, 266, 267, 404, 443. Manson v. Thacker, 88. Maplebaok, Se, 628. Marabita v. Imp. Ottoman Bk., 1028. Marbella Iron Co. v. AUen, 108. Maroussen v. Birkbeok Bk., 702. Mardall v. TheUusson, 877. Mare v. Charles, 422. ■ V. Sandford, 669. Margetson v. Glynn, 192. «>. Wright, 301, 330. Maria v. Hall, 465. Marino's case, 117. Mark Lane, The, 42. Marks V. Feldman, 74. ■ V. Hamilton, 657. Martwick ii. Hardingham, 407. Marlow v. Bitfield, 476. Marman's Trust, lie, .504. Marriott v. Hampton, 79. Marryat v. Marryat, 102, 197, 806, V. Wilson, 465. Marryatts f . White, 788. Marsden's Estate, Se, 952. Marsden v. Moore, 567. Marsel v. Norton, 169. Marsh and Granville, Se, 546, 717. Marsh V. Hutchinson, 489. V. Jones, 923. ■ V. Keating, 74. Marshall, Exp., 890. V. Berridge, 231, 265, 266, 732, 985, 986. . V. Broadhurst, 1079. 1'. Colman, 973. V. Crutwell, 489. • V. Green, 215, 243, 246, 260. V. Hopkins, 72. V. Lynn, 689. v. Marshall, 492, 662. V. Boole, 911, 946, 947. V. Button, 478. V. Schofield, 598. Marshfleld, Se, 830, 831, 851. Martin t". Andrews, 81. V. Beauchamp, 810. V, Soulanger, 818. V. Brecknell, 789. V. Crompe, 376, 382. V. Gale, 475. V. Hewson, 651. V. Mitchell, 237, 978. Martin v. Morgan, 72, 84. V. Nutkin, 960. V. Pycroft, 157, 164, 254, 980. ». Keid, 245. ■ ■ V. Smith, 204. Martindale v. Falkner, 844. V. Smith, 917. Martineau ti.Kitching, 609, 657. Martinson v. Clowes, 364. Martyn v. Clue, 669, 1046. . V. Wilhams, 1041, 1046, 1049. Marvin t). Wallace, 245, 247. Marzetti v. Wilhams, 10, 908. Mason v. Armitage, 240, 280. V. Bradley, 701. 4). Cole, 178, 180. V. Harris, 518. V. Mitchell, 491. V. Morgan, 488. V. Ramsay, 455. V. Sainsbury, 63. J). Whitehouse, 785. Mason and Tiimer, Se, 78. Maspons v. Mildred, 417, 420. Massey 1). Johnson, 213, 756, 757. ■ V. Sladen, 729. Master v. Hansard, 1060. V. MiUer, 320, 542, 696, 700, 701, 997. Masters v. Ibberson, 320. Mather, Exp., 666, 671, 674, 677. V. Maidstone, 628. Mathew v. Blackmore, 46, 807. Mathewman's case, 485. Mathews v. Keble, 935. Mathewson's case, 378, 700. Matson v. Booth, 705. ■ V. Wharam, 209. Matthew, Exp., 768. ». Northern Ins., 197, 1031. Matthews r. Baxter, 505. V. Walwyn, 1005. ». Whittle, 1069. Matthiessen v. Lond. & Co. Bank, 1023. Mattock V. Kinglake, 567. Maugham v. Hubbard, 778. V. Sharpe, 370. Maulever v. Hawxby, 274. Maund's case, 736. Maund v. Mason, 41. Maunsell v. White, 3, 554. Mavor v. Pyne, 46, 218, 256. Mavro v. Ocean Marine Ins., 177. Maw V. Jones, 577, 904. r. Pearson, 782. Mawson v. Blane, 468. • V. Fletcher, 583. Maxted v. Paine, 438, 439, 568. Maxwell v. Jameson, 69. TABLE OF CASES. Ivii -May, Ee, 492, 811, 813, 1089. V. O'NeUl, 637. V. Thomson, 15, 148, 971. Mayd v. Field, 48.5. Mayfield v. Wadsley, 214, 253, 792. Mayhew v. Crickett, 693. Maynard's case, 774. Mayor v. Collins, 467. Mead, Se, 1003. Meade v. Roberts, 34. Meadows v. Tanner, 307. Meakin v. Morris, 466, 467. Mearea, Re, 503. Mearing v. Hellings, 651. Mecheleni). Wallace, 212, 253. Medawar v. Grand Hotel Co., 170. Meek v. Kettlewell, 531. V. "Wendt, 431. Megginson v. Harper, 865. Meggy f. Imperial Disc. Co., 1106. Megrath v. Gray, 875, 879. Melboum, Exp., 176. Melhado *. Porto Alegre Ry., 366, 392, 523, 524. MeUershs. Brown, 831, 948. MeUish v. Motteaux, 300. Melliss V. Shirley Loo. Bd., 515, 517, 622. Mellor V. Daintree, 190. Menetone v. Athawes, 51. Meniaeff v. Reade, 682. Menier v. Hooper's Tel. Co., 518. Mennett v. Bonham, 649. Mercantile Bank v. Gladstone, 364, 406, 448. Mercantile Marine Ins., Re, 890. V. Titherington, 730. Mercer v. Irving, 936, 938, 940. Merceron v. Dowson, 1057. Merchant Banking Co. v. Phoenix Co., 167. Merchant Shipping Co. v. Armitage, 576, 951. Merchants' Trading Co. i). Banner, 970. Meredith v. Footner, 499. ■ V. Meigh, 243, 244. Meres v. Anaell, 153. Merest v. Harvey, 903. MerriU v. Frame, 199. Merryweather i). Nixan, 62, 408. Mersey Steel Co. v. Naylor, 571, 713, 751, 879, 882. Metcalfe, Re, 263. V. Britannia Ironworks, 52, 736, 737. V. Shaw, 499. Metropolitan Bk., Re, 399. V. Heiron, 411, 834, 837, 847. Metrop. Coal Ase., Re, 298, 312, 320, 915, 955. Metrop. Dist. Ey. v. Sharpe, 930. Metrop. Ry. v. Defries, 326, 988. Metters v. Brown, 131. Meux ('. Bell, 1009, 1010. Mews V. Carr, 238. Meyer f. Decroix, 553, 1017. V. Dresser, 166, 176, 177, 576, 868, 871, 907. V. Everth, 15, 154. V. Haworth, 497. V. RaUi, 106, 111, 450. MeyerhofB v. FroehHoh, 855. Meynell v. Surtees, 20, 26, 32. Michell «). Michell, 483. Middleditoh v. ElUs, 103. Middlemore J". Goodale, 1038, 1043. Middleton v. Brown, 534, 535, 636, 986. V. Pollock, 867, 871, 875, 877. Middlewood v. Blakes, 341. Midgleys v. Lovelace, 1058. Midland Banking Co. c. Chambers, 385, 894. Midland Ins. Co. v. Smith, 64, 71. Midland Ry. v. G. W. Ry., 509. V. Pye, 491. Migotti V. ColviU, 730, 734. Milan Trams. Co., Re, 876, 1011. Milboum v. Bwart, 123, 1067. MUdmay's case, 536. MUdmay v. Hungerford, 287. Mildred v. Maspons, 427. Miles' Claim, 422, 455. MUes, Exp., 440. V. Bough, 398. V. Gorton, 247, 768, 769, 1096. V. New Zealand Co., 219, 260, 543. Milford Docks, Re, 551, 567. Millard v. Harvey, 499. Millen v. Brash, 906, 914. Miller's case, 685. Miller, Re, 888. 1!. Atlee, 868, 871. i>. Cook, 365, 356. • V. DeU, 660, 846. v. Douglas, 104. V. Miller, 838. «. Newman, 440. V. Race, 76. V. Thompson, 363. ■ V. Woodfall, 364. Millership «;. Brooks, 115. Millett V. Coleman, 814. Milligan v. Cooke, 994, 995. MilUngton v. Loring, 903. MiUs, Exp., 452. V. Auriol, 1058. Iviii TABLE OF CASES. Mills V. Bailey, 569. V. Barber, 527. V. Blaokall, 37, 578. V. Charlesworth, 246. ■e. Dunham, 193, 634, 635. V. East London Union, 613. V. Powkes, 791, 792, 793, 851, 860. t). Fox, 211. V. Haywood, 683, 728, 988. V. Ladbroke, 381. Milu V. Prest, 653. Hilner's Settlement, Re, 483. Milner, Re, 669. . V. Field, 557. ■ 41. Rawlings, 79. Milnes v. Branch, 1039, 1050. 1). Duncan, 83. V. Gery, 657, 822. Milroy v. Lord, 531, 1002. Milsom V. Hay ward, 946. Milvain v. Perez, 418. Milward v. Littlewood, 597. Mineral Water Co. v. Booth, 640. Minn V. Truscott, 980. MinshuU v. Oakes, 1038, 1046, 1047. Mirams, Ee, 626. Misa V. Currie, 89. Missouri Steam Co., Re, 176, 622, 623. Mitchell's case, 472, 890. Mitchell, Re, 403. V. Homfray, 78, 360, 361. ' V, Lancashire &Torks. Ry., 604. i\ Neale, 400. V. Reynolds, 633. Mitchell and Izard, Re, 826. Mitcheson ». OUver, 447. Mitchinson v. Hewson, 1067. Mizen v. Pick, 494, 496. Mody V. Gregson, 337. Moeser v. Wisker, 87. Moffatt V. Dickson, 564. ■ ■ V. Parquhar, 669. V. Laurie, 47, 564. r. Parsons, 743, 747. Moggridge v. Jones, 668. Mogridge, Re, 19. Mogul Co. 'i>. Macgregor, 640. Moline, Mx p., 723. Moller V. Lambert, 370. V. Young, 1026. MoUett V. Robinson, 166, 436, 437, 439. V. Wackerbarth, 698, 699. MoUwo V. Court of Wards, 452. Molton J). Camroux, 501, 505. Mondel v. Steel, 907. Monetary Advance Co. v. Cater, 191. Monk v. Cooper, 598. Monk V. Whittenburg, 435. Monro v. Taylor, 719, 949, 990. Montacute v. Maxwell, 211, 267. Montagu, Re, 664. Montague v. Benedict, 41, 499. ■ 1). Flockton, 960, 961. V. Perkins, 118. V. Tidoombe, 191. Montefiori ». Lloyd, 181. v. Montefiori, 211. Montgomerie v. "United Kingdom Ass., 422. Monypenny v. Monypenny, 196. Moodie «>. Bannister, 861, 865. Moody and Yates, Re, 558, 683. Moon V. Raphael, 910. Moore, iSe, 958. V. Bushell, 93, 1004. 1). Campbell, 18, 160, 162, 237, 689, 713. V. Clementson, 427. . V. Darton, 1003. ». Davis, 452. V. Explosives Co., 298. V. Garwood, 87, 151, 186. • V. Harris, 564. V. Knight, 835, 847. V. Moore, 1003. f. North Western Bk., 1007. . ■ V. SheUey, 729. V. Woolsey, 657. Moore and De La Torre's case, 298, 314. Moravia v. Sloper, 108. Mordaunt v. Monoriefie, 503. Morehouse v. Colvin, 3. Moreton v. Holt, 105. Morgan, Exp., 131, 813. Re, 1086, 1099. V. Bain, 671, 572, 684, 754. V. Birnie, 557. V. Davies, 583, 733. V. Elford, 75, 410. ■ V. Gath, 712. V. Griffith, 163. ». Hardy, 908, 929. V. Jones, 948. . V. Knight, 1106. . V. Lariviere, 461. V. Mihnan, 267. V. Minett, 79, 368. 1>. Painter, 1066. V. Palmer, 80. V. Pike, 119. V. Ravey, 170. • V. Rhodes, 979, 1001, 1097. V. Rowlands, 807, 858. V. Steble, 1095. V. Sykes, 261. Morier, Ex p., 875, 877. TABLE OF CASES. lix Morison V. Thompson, 410. Morley v. Attenborough, 86, 331, 332, 336. V. Boothby, 532. V. Cook, 584. V. Culverwell, 787. V. Frear, 799. V. Morley, 829. i. Rennoldson, 659. Morphett V. Jones, 257, 259. Morrell v. Cowan, 9, 27, 231, 482, 485. V. Fisher, 191. V. Frith, 853. V. Wootten, 1004. Morris's Estate, J2«, 1088, 1089. Morris «i. Cleasby, 428, 441. 41. Colman, 961. V. Dixon, 856. V. Levison, 713. V. Martin, 497. V. Salberg, 74, 391. — — 1!. WUson, 149. Morrison v. Moat, 972. V. Universal Ins., 317, 321, 323, 324, 341, 342. Morse v. Merest, 726, 822. Mors le Blanch v. Wilson, 932. Mortimer r. Bell, 307. ■ V. GeU, 665. V. McCaUan, 415, 438. Mortimore v. Wright, 41. Mortlook V. Buller, 280, 535, 718, 721, 982,^91,993. Morton's case, 1013. Morton, i:xp.,128. V. Bum, 540, 542. V. Lamb, 670. . V. Tibbett, 241, 244, 247. Moseley v. Cressey's Co., 87. V. Hanford, 156. V. Eendell, 1073, 1085. Mosely v. Virgin, 969. Moser, Se, 1099. Moses V. Maoferlan, 54, 55, 71, 79, 82, 140. Moss D. Hall, 693, 799, 800. V. James, 692. V. Smith, 591. - — V. Sweet, 555. Moase v. Killick, 625. Mostyn v. Fabrigas, 462. V. Mostyn Coal Co., 199, 268, 269, 302. Motion V. Moojen, 1095. Motteux V. London Ass., 270. Mouflet v. Cole, 638. Monle V. Garrett, 56, 57, 1059. Movilsdale v. Birchall, 542. Moulson, He, 160. Mountford v. Harper, 773. Mountstephen v. Brooke, 372, 865. Moualey v. Ludlam, 170. Mouys V. Leake, 626, 679. Mowatt V. Castle Steel Co., 114. v. Londesborough, 87, 805, 951. Moxhay v. Inderwick, 984, 1062. Moxon :;. Payne, 360. Moyoe v. Newington, 327, 329. Mozley v. Tinkler, 22. Mucklow V. Mangles, 221. Mudford's case, 775. Mudge 1). Rowan, 888. Muggeridge, He, 144. Muir V. Crawford, 801. Muirhead, Jixp., 108. Mulkem v. Lord, 821. MuUens v. Miller, 319. Mullett V. Mason, 919. Mulliner V. Florence, 171. Mullins V. Howell, 266. Mumford v. Gethmg, 180, 636, 637. Muncey v. Dennis, 170. Munday v. Asprey, 232. Mundy j;. JoUiflfe, 258. Municipal Bg. Soc. v. Kent, 821. V. Kichards, 821. Munro v. Butt, 42, 49. V. De Chemant, 494, 495. Munroe p.'Pilkington, 738. Murly V. M'Dermott, 179. Murphy v. Boese, 226, 239. V. Glass, 876. Murray v. Earl Stair, 115. V. East India Co., 394, 848, 1077. V. Mann, 318, 334. V. Parker, 271. V. Eeeyes, 629. V. Scott, 509. Musgrave v. Pulido, 462. Musketti). BHl, 1049. Mussen v. Price, 651, 911. Mustapha v. Wedlake, 1004. Mutrie v. Binuie, 815. Mutual Aid Bmlding Soc, He, 509. Mutual Life Ass. v. Langley, 1007 1008. Mutual ProT. Soc. v. MacmiUan, 408. Mycock V. Beatson, 88. Myers v. Myers, 682. V. Perigal, 217. V. Sari,- 169, 172. V. Watson, 296, 980, 981. 1). WiUis, 447. Naden, JExp., 888. Nairn v. Prowse, 545. Nant-y-Glo Co. v. Grove, 411. ix TABLE OF CASES. Naoroji c. Bk. of India, 881. Napier, The, 64. Nash J). Armstrong, 131, 693. V. Hodgson, 788, 792, 860. Nassau Co., Re, 472. Natal Investment Co., Re, 1011, 1012. National Ass. v. Best, 909. National Bank v. Silke, 1017, 1021, 1022. National Building Soo., Re, 609. National Coffee Co., Re, 431, 932. National Exchange Go. v. Drew, 313. National Merc. Bk., Exp., 529. V. Hampson, 425. National Provincial Asa., Re, 685. National Provincial Bk., Exp., 385, 893, 894. V. Harle, 999. V. Jackson, 113. V. Marshall, 937. National Savings Bk. v. Tranah, 770. Naylorf. GoodaU, 179, 232, 982, 993, 994. Neal, Exp., 888. Neale ». Mackenzie, 979, 983. i> RatclifEe, 669, 578. Neate v. Harding, 71, 74. V. Marlborough, 136. Neath Building Soc. v. Luce, 57, 510. Nedham's case, 1087, 1088. Needham v. Bremner, 497, 812. NeUl V. Whitworth, 573. Neilsen v. Wait, 601. Neilson v. Harford, 185. • V. James, 166, 167. V. Mossend Iron Co., 582. Nelson v. Bridport, 174. V. Duncombe, 503. V. Serle, 206, 543, 1086. ■ ■ V. Stocker, 469. Nelthorpe v. Holgate, 300, 401, 994, 1000. Nene Valley Commiss. v. Dunkley, 228. Nerot V. "Wallace, 594, 618. Nesbitt V. Lushington, 192. V. Meyer, 986. Nesham v. Selbv, 228, 231, 233. Nettebohn v. Eiohter, 603. Neve V. Hollands, 866. Nevill's case, 801. Nevill V. Snelling, 356. Neville «. Wilkinson, 211. Newall V. Nati nal Bk., 877. V. Tomlinson, 83, 94. Newbattle, The, 462. Newbiggin's Estate, 504. Newbould v. Smith, 860, 862. New Brunswick Ry. v. Conybeare, 296, 319. New Brunswick Ry. v. Muggeridge, 968, 973. Newby v. Sharpe, 613, 667, 680. Newcastle Fire Ins. v. Macmorran, 344. Newcombe v. De Roos, 23, 30, 32. New Eberhardt Co., Re, 151, 159, 236. Newell 1!. Radford, 180, 229. V. Van Praagh, 769. Newfoundland Gov. v. Newfound- land Ry., 868. Newhall v. Holt, 102. Newington v. Levy, 798, 812. Newington Loo. Bd. v. Cottingham Loc. Bd., 612, 679. Newitt, Exp., 629. NewLandAss. andFagence, Re, 1 106. Newlands v. Nat. Accident Ass., 319. Newman, Re, 891 , 933, 938, 941, 942. V. Newman, 678, 679, 1031. V. Rogers, 727. Newmarch v. Brandling, 962. V. Clay, 788, 790. New Quebrada Co. v. Carr, 871, 879. Newry Ry. v. Coombe, 471. Newsome v. Graham, 83. Newstead v. Searles, 546. Newton, Exp., 890. ■ V. Marsden, 659. New Tork Bowery Ins. -i). New York Ins., 345. New Zealand Co. v. Watson, 93, 403, 417. Niohol's case, 766. Nicholi). Bestwick, 706, 912. ■ V. Godts, 337. Nicholl V. Bromley, 560. • V. Chambers, 719. V. Jones, 487, 661. NichoUs V. Diamond, 422, 455. V. Stretton, 637, 638. Nichols V. Evens, 98, 763. V. Marsland, 693. Nicholson, Exp., 669. ■ Re. 78. V. Bower, 242, 243, 248, 260, 261. V. Bradfield, 513, 712. ■ V. Chapman, 42. V. Drury Building Co., 491. V. Gooch, 675. V. Revill, 760, 799. V. Ricketts, 456. V. Smith, 726, 1044. Nickalls v. Merry, 439. Nickels v. Hancock, 825. Nioklin v. Williams, 904. Nicol's case, 18, 316, 319, 320. Niool V. Nicol, 662. NiooU V. Penning, 1048, 1062. TABLE OF CASES. 1x1 NicoU V. Greayes, 171. NieE V. Morley, 502, 504. Nielson v. Wait, 173, 574. Niemann v. Niemann, 456. Nind V. Marshall, 190. Nitro-Phosphate Co. v. London & K. Docks, 593, 598. Nives V. Nives, 965. Noble V. Bk. of England, 708. V. Edwardes, 725, 924. • V. Kennaway, 340. V. Ward, 251, 689, 691. Noel V. Weston, 400. Noke's case, 199. Noke V. Awder, 1038. Nokes V. Kilmorey, 727. Nordenstrom v. Pitt, 943. Norfolk V. Worthy, 94. Norfolk %. V. MoNamara, 805, 806. Norman v. Binnington, 602, 603. ■ V. Phillips, 243, 244. V. Thompson, 539. V. ViUars, 491. Norris v. Aylett, 808. V. Jackson, 970. North f. Bassett, 1015. V. Wakefield, 800. North Australian Co., Re, 411. North British Ins. v. Lloyd, 347, 348. • V. London Ins., 63, 610, 658. V. MofEat, 657. North of England Ins. v. Archangel Ins., 1032. V. Armstrong, 63, 654. North West Transport Co. v. Beatty, 359, 365. North Western Ry. t>. McMlchael, 471. V. Whinray, 695. Northampton Gas Co. v. Parnell, 119. Northcote ». Doughty, 469. Northen's Estate, Re, 274. Northern Assam Tea Co., Re, 1013. Northumberland «. Errington, 379. Northumberland Hotel Co., Re, 258, 392, 523. Norton i). EUam, 550, 561, 742, 745, 843. V. Fazan, 497. «;. Florence Land Co., 815, 1034. ■ V. London & N. W. Ky., 509. V. Seymour, 455. V. TurviU, 485. Nerval «>. Pascoe, 1041, 1049, 1057. Norwich Equit. Ins., Re, 883. Nosotti V. Page, 763. Notara v. Henderson, 450. Notting Hill, The, 921. Nottingham Brick Co. v. Butler, 302, 303, 1060. Nouaille v. Flight, 984, 995. Nouvion «;. Freeman, 106, 109. NoveUi V. Eossi, 110. Nowlan v. Ablett, 171, 686. Noyes v. Crawley, 101, 838, 849. Nugent V. Smith, 344, 593, 603, 604. Nuun V. Fabian, 258. Nurse v. Craig, 496. V. Seymour, 981. Nutbrown v. Thornton, 966, 967. Nye V. Moseley, 660. Nyholm, JEx p., 91. Oakden v. Pike, 717, 726. Oakes v. Turquand, 20, 299, 328. Gates 1>. Hudson, 94. Obee V. Bishop, 834. Ocean Ins. v. Leslie, 369. Ochsenbein J). Papelier, 110. Ockenden v. Henly, 87, 88, 924. O'Connor v. Spaight, 212. Odell, Exp., 191. Odes J). Woodward, 407. Odessa Tramways Co. v. Mendel, 668, 670. Offley V. Clay, 499. Offord V. Davies, 27, 30, 1079. Ogden «;. Benas, 1023. V. Fossick, 969, 977. Ogilvie D. Currie, 324, 326. V. Foljambe, 179, 232, 234. Ogle!). Vane, 691, 913. Oglesby v. Tglesias, 418. O'Hanlan v. Great Western Ey. , 921 . O'Herlihyv. Hedges, 1001. OkiU V. Whittaker, 286, 287. Old V. Robson, 640. Oldenburgh, /. g., 175. Oldershaw ». King, 541. Oldfield V. Round, 303, 316, 720. Oldham v. Oldham, 407. ■ ■ V. Ramsden, 651. Oli-per V. Fielden, 573. V. Hunting, 149, 227. V. Woodroffe, 467, 475, 476. Olley V. Fisher, 269. OUivant v. Bailey, 333. OUive V. Booker, 574. O'Mealeyt;. Wilson, 464. Onions v. Cohen, 930, 977, 995. Onslow's Trusts, 468. Onward, The, 449. Onward Building Soc, Re, 286, 968. Oom D. Bruce, 85, 92, 283, 666. Ooregum Gold Co. v. Roper, 775. Openheimer v. Levy, 463. Opera Co., Re, 86, 1034. Orange and Wright, Re, 993. Orchis, The, 66. Ixii TABLE OF CASES. Oriental Bani, Me, 405, 407. Oriental Finance Corp. i>. Overend & Co., 695. Oriental Steam Co. v. Briggs, 19, 968. Orme v. Brougtton, 1080. V. Galloway, 539. Ormes v. Beadel, 350. Ormrod v. Hutli, 6, 331. O'Rorke i). Boliubroke, 356. Orpen, Re, 836, 850, 878. Orrell v. Ooppook, 206, 643. Ortigosa v. Brown, 118. Ortner v. Pitzgibbon, 481. Orwell CoU. Co., Ee, 810. Osbaldiston v. Askew, 989. Osborn's case, 273. Osborn v. Gillett, 71, 1083. ■ V. Guy's Hospital, 3. Osborne v. Rowlett, 716. V. Williams, 359. Osmond v. Fitzroy, 356, 504. Oswald V. Berwick, 695. Ottaway v. Hamilton, 498. Oughton V. Sepplngs, 74. Oulds V. Harrison, 652. Overend, Gurney & Co., Re, 1011, 1018. Overton v. Harvey, 810. Owen V. Challis, 71. ■ V. Davies, 504. V. Delamere, 1086. V. Homan, 347, 801, 804, 806, 808. . ■ V. Eouth, 914. V. Thomas, 179, 232. V. Van TJster, 455. V. Wilkinson, 377, 871. Owens V. Denton, 674, 767, 792. Owston V. Ogle, 383. Oxendale v. Wetherell, 48, 712. Oxford Building See, Re, 380, 520. Oxford V. Provand, 578, 969, 980. Oxley V. James, 1051. Ozard v. Damford, 495. Packer v. Gibbins, 599. Padwick v. Piatt, 1000. V. Scott, 877. V. Stanley, 384. Pagani, Re, 502. Page V. Morgan, 241, 242. V. Newman, 945. Paget 1). Ede, 975. V. Foley, 830. V. Marshall, 268. Pagin's case, 776. Paice V. Walker, 414. Paine r. Hutchinson, 968. Paine v. Meller, 609, 610, 719. V. Slater, 105. V. Strand, 513. Painter v. Newby, 994. Paley v. Field, 789. Palliser v. Gurney, 480; Palmer v. Bate, 625. t). Edwards, 1057. V. Johnson, 88, 149, 279, 721. V. Locke, 123, 717, 1101. t>. MaUet, 382, 639. ». Naylor, 192. V. Temple, 88, 810. Palyart v. Leckie, 673. Panama Tel. Co. v. Indiambber Tel. Works, 409, 611. Paradine ». Jane, 598. Parana, The, 921. Pardee v. Price, 96, 101. Pare v. Clegg, 836. Parfitt V. Chambre, 934, 938. V. Jephson, 308. Pargeter v. Harris, 1041, 1050. Paris Rink Co., Se, 630, 631. Parker, Re, 665, 892. ■ V. Beasley, 447. «. Butcher, 940. . ■ V. Crole, 891. V. Gossage, 188. V. Great Western Ey., 81. V. Ibbetson, 165, 171, 585. V. Lechmere, 488. V. Lewis, 663, 931. ■ V. Mackenna, 409, 411. -i). Norton, 891. . — - V. Palmer, 336, 338, 715. V. South Eastern Ry., 13, 159. ■ V. Staniland, 214. V. Stones, 1002. V. TasweU, 204. «i. Wallis, 241. • V. Whyte, 1063. V. Winlow, 600. Parker and Beech, Re, 780, 782. Parkes v. Prescott, 396. • V. Smith, 818. Parkhurst v. Smith, 189. Parkin v. Thorold, 727. Parkinson v. Colher, 169. V. Lee, 300, 332, 337. . V. Potter, 462. Parlemente Beige, The, 462. Parmiter v. Parmiter, 856. Parnham v. Hurst, 1103. Parr v. LiUiorap, 740. ■ V. Winteringham, 821. Parrott, Re, 114. Parry v. Great Ship Co., 710. V. Nicholson, 703. V. Roberts, 93. TABLE OF OASES. Ixiii Parson's case, 472. Parsons v. Alexander, 650. V. Sexton, 555. V. Thomson, 624. Partington r.Att.-Gen., 1070. Parton v. Crofts, 227, 231. Partridge v. Bank of England, 1035. Pasley v. Freeman, 4, 292, 331. Patent Pile Co., Re, 610. Patent Ploor Cloth Co., Re, 760, 904. Patent Gun Cotton Co. v. WUson, 76, 1023. Paterson v. Gandasequi, 417. V. Long, 367. Patman v. Harland, 722, 1062, 1063, 1064. Patmore v. Colbum, 683. Paton V. Kogers, 992. Patria, The, 177, 616. Patrick, Re, 531, 997, 1002, 1003, 1005. V. Milner, 725, 726, 727. . V. Sheddon, 107. Pattinson v. Luckley, 42, 697, 702. Paul, Re, 169. Pauli!. Dod, 46, 768, 911. V. Nurse, 1046. V. Paul, 631. Paull v. Simpson, 1054. Pavy's Felted Fabric Co., 435. Pawle's case, 324. Pawle V. Gunn, 68, 69, 255, 256. Pawsey v. Armstrong, 452. Pawson V. Brown, 675. Paxton V. Newton, 971. V. Popham, 125, 183, 672. Payler v. Homersham, 190, 797. Payne, Exp., 1093. Payne v. Brecon, 679. r. Cave, 11, 27. V. Chapman, 79. V. Haine, 178, 180, 197. V. Leconfield, 396, 442. V. Mortimer, 530. V. Eodgers, 802. V. Wilson, 541. Paynter v. James, 575, 730. V. Walker, 873. V. Williams, 40. Peace v. Hains, 795. Peacock, Exp., 889. Peacock v. Bell, 33. • ■ V. Benson, 984. V. Evans, 355. V. Harris, 99. V. Penson, 295, 981, 993. V. PurseU, 769, 771. Pearoe, Exp., 888. J). Brooks, 664, 667. V. Watts, 591, 986. Pearl v. Deacon, 384, 789. Pearly v. Smith, 943. Pears v. Laing, 862. Pearse's Claim, 771. Pearse v. Morrioe, 120. Pearson, Exp., 715. V. Goschen, 448. V. Pearson, 633. V. Scott, 426, 427, 438, 783, 784. Pease ». Gloaheo, 327, 1029. Peat V. Jones, 879, 882. Peate v. Dicken, 149, 646. Pechell V. Watson, 630. Peek's case, 28. Peek i>. Gurney, 292, 297, 299, 320, 324, 1074. V. Larsen, 1027. • ■ V. Matthews, 987. V. North Staffs. Ry., 13, 604. Peel's case, 20. Peel V. Thomas, 459. Peers v. Lambert, 719, 990. Peeters v. Opie, 46, 665, 579. Pegg V. Wisden, 726. Pegler v. White, 985. Peiroe v. Corf, 228, 234, 238. Pellas V. Neptune Ins., 1033. Pellatt's ease, 19, 22, 775. Pellecat v. AngeU, 664. Pellew V. Wousford, 729. Pelton V. Harrison, 481, 482, 483. Pemberton v. Vaughan, 634. Pender v. Lushington, 518. Penfold v. Abbott, 200. PenMvil v. Cornell, 423. Penley v. Watts, 1059. Penn v. Baltimore, 976. Pennell v. DefEeU, 791. Penney, Ex p., 967. Penniall v. Harborne, 710. Penny v. Brice, 848. V. Porter, 588. Penrose v. Martyn, 423. Pentelow's case, 28. Peroival v. Dunn, 1005. Percy, Re, 956. V. Clements, 1014. Perham v. Eaynal, 863. Perkins, Re, 1007. V. Ede, 990. Perrett's case, 19. Perrin v. Lyon, 659. Perring v. Hone, 701. Perry v. Attwood, 99, 102, 767. V. Bamett, 39, 166, 167, 438, 665. V. Slade, 99. Perryman's case, 116. Peru Republic v. Dreyfus, 462. V. Peruvian Guano Co., 462. Ixiv TABLE OF CASES. Peru Republic v. Weguelin, 462. Peruvian Guano Co. v. Bookwoldt, 815. Peruvian Ry. Co. v. Thames Ins. Co., 511, 517. Petoh V. Lyon, 99, 104. Peter v. Compton, 218, 219. Peters v. Anderson, 791. V. Fleming, 473, 474. Peto V. Brighton and Tunbridge Ry., 969, 978. V. Brighton and Uckfield Ry., 962. r. Reynolds, 363. Petre v. Duncombe, 946, 955. Petrie J). Bury, 119, 375. Petty V. Cooke, 780. ■ V. Styward, 376. Peytoe's case, 757, 767. Pharmaceutical Soo. v. London Sup- ply Ass., 506, 643. V. Wheeldon, 643. Phelps V. Comber, 440. V. Hid, 603. Philips i>. Philips, 835, 836, 855. PhiUimore v. Barry, 228, 236. Phillips V. Allan, 895, 896. V. Bamett, 490. V. Beale, 850. ' . ■ v. BistoUi, 242, 243, 247. V. Briard, 168, 445. V. Caldcleugh, 717. V. Glagett, 802, 803. V. Clift, 577. V. Eyre, 462. . V. Foxall, 299, 347, 348. r. Henson, 213. V. Hewston, 96, 203. - — -v. Homfray, 71, 75, 305, 945, 950, 1076. V. London & S. W. Ry., 903. V. Miller, 303, 1043. V. Silvester, 988. V. Ward, 811. «. Warren, 776. Phillipson v. Hayter, 493. Philliskirk v. Pluckwell, 488. Phillpottj). Adams, 106. Phillpotts V. Chfton, 745. V. Evans, 687, 753. Philp v. Squire, 368. Philpot V. Briant, 205. V. Wallet, 210. Philpott V. Jones, 644, 792. Philpotts V. Reed, 895. Phipps V. Jackson, 970. v. Lovegrove, 1010. V. Tanner, 273. Phoenix Bessemer Steel Co., Re, 191, 572, 684, 754. Phosphate of Lime Co. i>. Green, 522. Phosphate Sewage Co. v. Hartmont, 325, 359, 410, 411, 810. Picard v. Hine, 479, 484. Pickard v. Banks, 97. V. Sears, 5. Picker D. London & Co. Bank, 1036. Pickering, Exp., 890. V. Barkley, 602. V. Busk, 389, 434. V. Dowson, 15, 16. V. Ely, 968. . !). Ilfracombe Ry., 678, 679, 1007. V. Stephenson, 507. Pickup V. Thames Ins., 343. Pidoock V. Bishop, 348. Pierce i>. Fothergill, 947. V. Jersey Waterworks, 520. Pieroy, Ex p., 365. r. Fynney, 458, 779, 784, 802, 873. V. Toung, 824, 825. Pierson v, Dunlop, 653. Piggottt). Stratton, 2, 163, 981, 1043. Pigot's case, 264, 696, 697, 698, 699, 700. Pigot V. Cubley, 743. Pigott, Re, 965. 1). Rush, 839. V. Thompson, 366, 368. Pigott and G. W. E.y., Re, 14, 923. Pike «. Eitzgibbon, 481, 482, 484. V. Ongley, 414, 415. Pilbrow V. Pilbrow's Atmospheric Rv., 552. Pile'f. PUe, 972. Pilkington v. Scott, 635, 636. Pillans V. Van Mierop, 6, 124. Pillar V. Llynvi Coal Co., 646. Pilley V. Robinson, 373. PiUing V. Armitage, 42. Pim V. Reid, 345. Pince V. Beattie, 633. Pindar v. Barr, 73. Pink, Re, 504. V. Eleming, 900. Pinkney v. Hall, 454. Pinnel's case, 765, 794. Pinnook v. Bailey, 1008. V. Harrison, S67. Pistor r. Cater, 120. Pitman t). Woodbury, 119, 120. Pitt V. Coomes, 79. V. Dacre, 833. V. Lomas, 1005. r. Smith, 505. Pittam )'. Foster, 866. Pitts r. Beckett, 227, 234, 23 i. Planchc v. Colburn, 46, 611. TABLE OF CASES. Ixv Flasket's Estate, Re, 540. Plating Co. v. Farquharson, 631, 632. Player n. Blandy, 741. Play ford v. United Kingdom Tel. Co., 25. Plevins v. Downing, 579, 689, 691, 711, 913. Plews i\ Baker, 824. PUmley v. Westley, 771, 772. PMmmer v. Wellington, 42, 258. Plumer v. Grregory, 456. Plununer ». Woodbume, 814. Polak V. Everett, 386, 693. Pole V. Harrobin, 353. V. Leask, 388, 389, 457. Polglass V. OHver, 743, 744. PolhiU V. Walter, 431. Pollard V. Bank of England, 84. V. Clayton, 727, 728, 961, 966. PoUitt V. Porrest, 934. Pontida, The, 449. Pontifex r. Poord, 57, 929, 1060. V. Wilkinson, 579. Pool V. Pool, 406. ■ • V. Saoheverel, 631. Poole's Estate, Re, 126, 1089. Poole V. Canning, 1067. • V. HiU, 568. ■ . V. Middleton, 967. V. Poole, 835. V. Shergold, 719, 990. V. Tumbridge, 560, 735, 741. Pooley V. Driver, 452, 453. V. Harradiue, 386, 695. V. Whetham, 358. Pope, Re, 138. Poplettv. Stockdale, 626. Popple V. Sylvester, 807. Pordage v. Cole, 196, 565, 566, 567. Pomett V. White, 98. Porritt V. Baker, 645. Portarlington v. Soulby, 975. Porter v. Cooper, 99. V. Drew, 317, 1063. V. Taylor, 784. Porteus V. Watney, 1026. Portman v. Hill, 989. ■ V. Middleton, 916. Portmore V. Bunn, 1049. Portsea v. Whillier, 695. Portuguese Copper Mines, Re, 22, 391, 392, 393, 399. Posti!. Marsh, 191, 668. Postlethwaite v. Freeland, 601. Potez V. Grlossop, 730. Pott V. Clegg, 838, 844. V. Plather, 912. Potter V. Duffield, 230, 371. V. Metrop. By. 1077. V. Rankm, 563. L. Potter V. Sanders, 31, 982. Pottinger, Exp., 125, 126, 530. Potts V. BeU, 464, 647, 648. Poulter V. Killingbeok, 256. Poulton «. Lattimore, 91, 907. Poussard v. Spiers, 566, 607. Pow V.Davis, 431, 932. Powel V. Little, 784. v. MUbank, 73. PoweU, Exp., 166. V. Divett, 698. V. Duff, 116. V. Edmunds, 155. V. EUiot, 990. V. Horton, 167, 173. V. Hoyland, 351. V. Hyde, 616. V. Jessop, 217. V. Knowler, 631. V. Powell, 925. ••!;. Rees, 71, 75, 1076. 4>. Smith, 287, 391, 582. Powell Coal Co. v. TafE Vale Ey., 969. Powers. Barham, 331. V. Butcher, 69, 777. Powers, Re, 830, 864. V. Powler, 26. Powis». Maynard, 939. ■!). Smith, 381. Powles V. Innes, 1032, 1033. Powley V. Walker, 546. Powual V. Perrand, 56, 68. Prance v. Sympson, 854. Prankerd, Exp., 92. Pratt V. Vizard, 77. 1). Willey, 783. Prebble v. Boghurst, 937. Prehn v. Royal Bank of Liverpool, 905, 910. Preseott v. Plinn, 389. Preston v. Christmas, 756. V. Dania, 123, 764. V. Liverpool M. & N. Ry., 623. V. Luck, 265, 266. V. Merceau, 157. V. Perton, 805. V. Tamplin, 451. Prestwick v. Marshall, 488, 499. Price, ^a;jO., 881. Re, 1066. — V. Al Ships Ins. Co., 172. — V. Assheton, 979. V. Barker, 800. V. Berrington, 504. V. Dewhurst, 110. — ■ V. Dyer, 287, 690, 091. — ■ 1). Eastou, 365, 533. V. Great Western Ry., 948. 1). Grreen, 688, 9J0. ixvi TABLE OF CASES. Price V. Griffitli, 985. V. Hewett, 470. V. JenHns, 546. V. Kirkham, 563, 694. V. Lea, 223. V. Ley, 273. V. Livingstone, 574. V. Lorett, 625. V. Maoaulay, 990. 1). Moulton, 804, 805, 806. i>. Neale, 89. V. Nixon, 586. V. Penzance, 970. . ». Price, 770, 771. V. Salusbury, 151, 253, 985. — — • v. Seaman, 542. V. Taylor, -422. Prickett v. Badger, 47, 444. Prideaux v. Burnett, 333. V. Griddle, 774. Priestley v. Femie, 413, 415, 416, 448. Prince «. Brunatte, 499. V. Nicholson, 1087. V. Oriental Bank, 90, 94, 698. Prince of Wales Ass. i!. Harding, 521. Pring V, Clarkson, 769. Printing Registering Go. v. Sampson, 621. Prinz Heinrich, The, 448. Prioleau v. United States, 462. Prior's case. The, 1038. Prior V. Hembrow, 383. Pritchard's case, 366. Pritchard v. Merchants' Life Ass., 284, 596. Pritohett v. Boevey, 924. Procter v. Sargent, 635, 637. Proles. Soady, 211. Propert v. Parker, 234. Prosper Mining Co., Se, 459. Pressor v. Edmonds, 631. Protector Loan Co. v. Grice, 938, 939. Prothero v. Phelps, 987. Proudfoot V. Hart, 180. V. Montefiore, 339, 340. Prov. Ins. of Canada v. Leduc, 446. Prudential Ass. v. Edmonds, 555. V. Thomas, 1006. Pugh's case, 21. ' Pugh V. Duke of Leeds, 193, 731. • V. Stringfield, 380. Pulbrook V. Lawes, 2')3, 256. V. Richmond Co., 518. PuUen ff. Snelus, 252. Pulling V. Great Eastern Ry., 1075. Pulsford I'. Richards, 298, 311, 313, 314, 320. Pulvertoft V. Pulvertoft, 536. Punnett, Bxp., 629. Purdon v. Purdon, 858. Pasey v. Pusey, 967. Pust V. Dowie, 575, 579. Putnam v. Bates, 862. Pybus V. Gibb, 695. Pye, Exp.. 1002. Pyer v. Carter, 180. Pyle Works, Re, 510. Pym V. Blackburn, 266, 598. V. CampbeU, 115, 161. Pyman v. Dreyfus, 600. Pyrke v. Waddingham, 717. Quartz Gold Mining Co. v. Eyre, 930. Quebec Ins. v. Commercial Bank, 181, 343. Queen, The v. Arkwright, 730. 41. Barnardo, 663. ■ V. Berkshire, 728. V. Burgess, 627. . v. Chambers, 103. ■ V. Charretie, 624. V. Chawton, 172, 732. V. City Court, 449. ■ V. Cooper, 292. V. Cowper, 236. V. Cumberland, 514. V. Doutre, 37. V. Essex County Court, 953. r. Fobbing, 593. ■ V. Fox, 544. V. Gordon, 294. V. HaU, 623. V. Hutchings, 812, 814. V. Kent, 402. V. Lamboum Ky., 1058. V. Leresche, 496. V. Lord, 467. V. McDonald, 470. . • V. Mayor of Stamford, 513. V. Mills, 72. V. Nevill, 192. V. Peters, 742. V. Poulter, 904. ■ r. Railway Commiss. , 82. V. Reed, 506, 509. V. Rymer, 170. V. Saddlers' Co., 326. V. St. Paul's, 113. r. Silvester, 192, 646. V. Stoke-upon-Trent, 171. V. Vreones, 626. . ■ V. Wooldale, 274. Queensland Agency, Re, 110, 175. Queiroz r. Trueman, 435. Quincey v. Sharpe, S54. TABLE OF CASES. Ixvii Kabbidge, Exp., 1093, 1097, 1101. Rabone v. Williama, 426. Eackham v. Marriott, 853. RadolifEe, JRe, 1087. V. Bartholomew, 729. Eadenliuret v. Bates, 366. Eaeburu v. Andrews, 106. Raffles V. Wichelhaus, 277. Raikes v. Todd, 789. Railton v. Mathews, 347, 348. Railway AppUanoes Co., Re, 197. RaUway Time Tables Co., Be, 19, 288. Rainbow v. Juggins, 385. Rainforth, Re, 858. Rains i>. Buxton, 846. Raitt V. Mitchell, 168. Raleigh v. Atkinson, 404, 435. Ralli V. Dennistoun, 766. : V. Universal Ins., 1033. Ram Coomar i>. Chunder, 630. Ramazotti v. Bowring, 45, 426. Ramsbottom v. G-osden, 269. V. Mortley, 229, 231. Ramsden v. Dyson, 42. ». Hylton, 797. ■ V. Jackson, 530. Ramsgate Hotel Co. v. Montefiore, 26. RamsMre v. Bolton, 72. RamsMUt'. Edwards, 69, 61, 62. Ramuz v. Crowe, 706, 772. Randall©. HaU, 981. ». Lithgow, 552. V. Lynch, 601. V. Moon, 763, 787. V. Morgan, 3. ■ V. Newson, 333, 337, 916. V. Raper, 920. . ». Rigby, 1050, 1051. Randegger v. Holmes, 824. RandeU v. Thompson, 823, 826. . ■ V. Trimen, 431. Randle v. Gould, 663. Ranelagh v. Melton, 726. Ranger v. Great Western Ry., 155, 558, 938. Rankin v. Huskisson, 962. V. Potter, 563. V. Weguelia, 1003. Rann v. Hughes, 6, 145, 205, 229, 527, 542. Raper ». Birkbeok, 698. Raphael v. Thames Valley Ry., 621. RashdaU v. Ford, 288, 293, 432, 511. Rasher v. Williams, 536. Rawley -o. Rawley, 870, 871. Rawlings v. Bell, 408. . i>. Coal Consumers' Co., 627. V. Metrop. Ry., 14. EawHngs v. Morgan, 908. Rawlins v. Desborough, 347. . • V. Wiokham, 309, 317. Rawlinson v. Clarke, 692. Rawson V. Johnson, 570. V. Samuel, 867. Rawstone v. GandeU, 802. V. Parr, 374. Ray, Mxp., 880. Raymond v. Fitch, 1048. . V. Minton, 576. Rayner v. Grote, 429. V. Preston, 658, 720. V. Ritson, 339. ■ • V. Stone, 970. Read v. Anderson, 25, 39, 405, 408, 652, 665. V. Brookman, 706. V. Brown, 33, 34. . • V. Goldring, 746, 786. V. Hutchinson, 44, 772. V. Joannon, 1034. V. Legard, 494, 495, 503. V. Nash, 209. , V. Pope, 108. V. Rann, 47, 49. Reade v. Lamb, 251. Reader v. Kuigham, 207, 208. Real k Pers. Adv. Co. v. McCarthy, 62. Reay's Estate, 160. Reay v. Richardson, 162. Rede v. Earr, 563, 583. . • V. Key, 656. Redfern v. Redfem, 467. Redgrave v. Hurd, 309, 316, 317. Redhead v. Midland Ry., 605. Redondo v. Chaytor, 463. Redpath v. Wigg, 429. Reed, Ee, 21, 328. V. Deere, 688. V. Kilburn Co-op. Soc, 586. Rees V. Berrington, 384, 386, 693. ■ V. Watts, 876, 877. . ■ V. Williams, 641. Reese River Mining Co. v. Smith, 309, 321, 324, 328. Reeves v. Butcher, 841, 842. V. Heame, 757, 859. V. Slater, 371. Reffell 1!. RefEell, 160. Reid V. Dickens, 858. 1). Dreaper, 436. V. Explosives Co., 750, 906, 907. V. Hoskina, 613, 753. ■ V. Stafford Ins., 323. Reidpath's case, 24. Reilly v. Jones, 942. Reimers v. Druoe, 111, 834, 842. e2 Ixviii TABLE OF CASES. ReindeU v. SclieU, 938. Keis V. Scottish Equitable Ass., 346, 687. Eemon v. Hay ward, 96, 174. Eenals v. Cowlishaw, 1060. Renaux 1>. Teakle, 493. Reniger v. Fogossa, 757. Reupor, The, 50, 448. Reuss V. Pickeley, 151, 159, 233, 236. Reuter v. Electric Tel. Co., 512, 522. . V. Sala, 571, 712,714. Rew V. Pettet, 865. Reynard v. Arnold, 658. Reynell v. Sprye, 312, 315, 316, 631. Reynolds, iJe, 551. V. Bowley, 453. «). Bridge, 940, 941. V. Davies, 560. v. Doyle, 845. ■ V. Eeriton, 110. V. Jex, 448. V. Nelson, 727. V. Wheeler, 60. Rhoades v. Selsey, 947. Rhodes, £e, 503, 504. 1). Bate, 360. t>. Da-wson, 1092. v. Eorwood, 197, 404, 750, 904. ■ V. Rhodes, 945. . V. Smethurst, 840, 847. V. Swithenbank, 476. Rhymney Ry. v. Rhymney Iron Co. , 82, 951. Rioardo v. G-arcias, 109, 814. Rice, Se, 160, 779. V. Baxendale, 920. V. Shute, 372. Rich V. Jackson, 157. Richards v. Bluck, 588. V. Delbridge, 531, 1002. 'V. Heather, 372, 374. V. Home Ass., 22. V. Porter, 234. V. Revitt, 684. V. Richards, 947, 1070. 1). Syms, 796. 1>. Thomas, 156. Richardson's case, 178, 371. Richardson ». Barnes, 711. V. Capes, 1044. 1). Chasen, 924. V. Dii Bois, 494, 495. V. Ehnit, 14. V. HaU, 1067. V. Harris, 529, 741, 763, 766. V. Horton, 374, 546. v. Jackson, 746. V. Jenkins, 121. i>. Martyr, 553. !•. Mellish, 542, 624, 904. Richardson v. Richardson, 1002. V. Silvester, 13. «). Smith, 823, 983. V. "Watson, 587. V. "Williamson, 431, 523, V. "WilUs, 133, 143. Richdale, JEx p., 773, 1021, 1023, 1093. Riche V. Ashbury Carriage Co., 519, 522 Richmond v. White, 1089. Rickard v. Moore, 241. Ricketts v. Bennett, 459. V. Weaver, 1082. Rickford v. Ridge, 774. Ridd V. Moggridge, 856. Riddell, He, 108. Riddle v. Grantham Canal Nav. Co., 141. Ridgway, Se, 246. V. Gray, 995. V. Hungerford Market Co., 49. . V. Wharton, 147, 149, 227. Ridler, Se, 546. Ridley «>. Plymouth Grinding Co., 399, 520. i>. Ridley, 219. Ridout V. Bristow, 156, 205, 1086. V. Brough, 878. Riga, The, 448. Rigby V. Connol, 460, 639, 640. Rigge «'. Burbidge, 907. Right V. Darby, 582. Riley v. Home, 603. r. Packington, 395. RUey and Streatfield, Se, 923, 925. Ring V. Roxbrough, 547. Ripley v. Maclure, 570, 579,751,753. RippinghaU v. Lloyd, 562, 687, 692, 734. Risbourg V. Bruckner, 417. Rishton v. Whatmore, 228. Rist V. Hobson, 146. Ritchie v. Atkinson, 578. V. Smith, 666. Ritso, Exp., 134. Rivaz r. Gerussi, 339. River Steamers' Co., Se, 854. River Wear Com. i;. Adamson, 593, 698. Rivers v. Griffiths, 740. Roach V. Wadham, 1039. Roads V. Trumpington, 213. Robbias v. Pennell, 785. Roberts, Se, 238, 261, 944, 948, 955. V. Barker, 170. r. Berry, 725, 726. ■ V. Brett, 566, 728. V. Bury Commiss., 558, 611. • r. Davey, 583. TABLE OF CASES. Ixix Eoberts v. Evane, 479. V. Hardy, 464. ». Havelock, 51. V. Eoberts, 214, 975. —^ V. Smith, 3. V. Snell, 1056. V. Tucker, 220, 225, 229, 1020. v. Watkiiis, 481, 558. V, Woodward, 646. V. Wyatt, 684. Robertson, £xp., 896. V. Amazon Tug Co., 333, 569, 670. V. French, 186, 187. V. Gross, 891. V. Jackson, 173, 177. V. Struth, 109. V. "Wait, 909. Robey v. Snaefell Co., 734. Eobins r. May, 663. Robinson's case, 22, 144, 810. Robinson, Exp., 964. ■ V. Bland, 176, 622, 737, 953. V. Chartered Bank, 967. V. Cook, 746. V. Currey, 832. V. Davison, 607. V. Gee, 660. V. GleadoT, 461. V. Great "Western Ey., 182, 604. V. Harman, 898. V. Hawksford, 773. V. KUvert, 928. V. Boiights, 576. V. Mahon, 494. V. MoUett, 430, 437. V. Nesbitt, 1007. v. Ommaney, 659, 889. V. Page, 690, 691. V. Pickering, 484. V. Read, 769. V. Robinson, 899. — - V. RudHns, 178, 370. • V. Eutter, 428, 443. D. Eyall, 448. V. Touray, 704. V. Vale, 891. V. "Vernon (Lord), 803. V. Waddington, 729. V. "Wall, 307. V. "Ward, 745. Robson, Me, 1003, 1004, 1078. ■ V. Drummond, 20, 420, 999. ■ V. Eaton, 784. V. Flight, 1063. V. Ohver, 771. Rochester (Dean of) f. Pierce, 514. Eock Cement Co. v. Wilson, 231, 925, 985. Rocke, Ha: p., 74. Roddam v. Morley, 829, 861, 862. Roden v. London Small Aims Co., 277. ». Eyde, 178. Eodgers v. Maw, 69, 74. Eodick V. Gandell, 1004. Eodocauachi v. Elliott, 173, 615. ■ V. Milbum, 161, 921, 1026. EodweU V. Phillips, 214. Eoe V. Davis, 120. V. Hayley, 1046. V. Mutual Loan Fund, 6. ■ V. York (Abp.), 683, 702. Eoffey, Exp., 850. V. GreenweU, 947. ■ V. Henderson, 216. Eoger's case, 19. Eogers, Exp., 437, 649, 652. V. Challis, 964. V. Drury, 639. V. Hadley, 159. V. Humphreys, 1055. V. Ingham, 86, 288. 'v. Kingston Dock, 733. V. Lambert, 332, 443. V. Langford, 90, 771. V. Payne, 756. V. Spence, 1094. D. "Whiteley, 1021. Eokeby v. Elliot, 955. Eolfe V. Flower, 686. • • V. Peterson, 934. Eolin V. Steward, 908. RoUason v. Leon, 204. Rolls V. MiUer, 1048. V. Pearce, 1003. t!. Tate, 381. Eolph, Exp., 529. V. Crouch, 931. Rolt V. Cozens, 541, 565. Romford Canal Co., JRe, 1013. Rondeau v. "Wyatt, 222, 226. Rooko. "Warth, 1081. Rooke V. Lord Kensington, 189. V. Nisbet, 53. Eoope V. D'Avigdor, 71. Eoots V. Lord Dormer, 223. V. "Williamson, 1007. Roper, Se, 484. ■ V. Holland, 96, 101. V. Johnson, 570, 751, 912. ■ V. Lendon, 564, 819. V. "Williams, 987. Eoscorla v. Thomas, 8. Eose V. Bowler, 488. ■ ■ V. Cunyngham, 231. V. Hart, 880, 881. V. Poulton, 119, 375, 377. V. Rose, 662. V. Savory, 102. Ixx TABLE OB' CASES. Rose V. Sims, 1019. V. Watson, 259, 949. Rosenberg <). Cook, 718, 726. Eosetto V. Gumey, 450. Eosevear Clay Co., Ex p., 1096. Eosewarne v. Billing, 662, 665. Eosheri;. Williams, 531, 554. EoBS, Sx p., 836. V. Estates Investment Co., 298. V. Gutteridge, 892.' V. Parkyns, 452. ■ ■ V. Thwaite, 169. Eosseter v. Cahlmann, 177, 647. Eossi V. Baily, 140. Eossiter v. Miller, 147, 229, 230, 371. Eotherham Alum Co., Ee, 366. Eothschild v. Comey, 77. Eound V. Bell, 830. Eoiiquette v. Overmann, 168, 562, 737. Eourke v. Short, 649. Eouse and Meir, Jie, 826. Eousillon V. Eousillon, 109, 110, 622, 633, 634, 636. Eoiitli V. MaomiUan, 395, 574. V. Thompson, 393. Eoutledge v. Burrell, 150. V. Grant, 17, 29. f . Hislop, 48. V. Eamsay, 853, 854. Eoux V. Salvador, 564. Eow V. Dawson, 997, 1004. Eowe, Re, 96, 835. V. Hopwood, 468. V. London School Board, 925. Eowland and Crankshaw, Me, 453. Eownson, Ee, 68, 211, 850, 1089. Eowntree v. Jacob, 778. Eoxburghe v. Cox, 93, 1000, 1011. Eoyal Bank of Scotland ». Cuthbert, 894. Eoyal Bristol Bg. Soc. v. Bomash, 926, 988. Eoyal British Bank v. Tiirquand, 520, 521. Eoyal Exchange Co. v. Dixon, 195, 603. Eoyal Mail Co. -v. Eio Bank, 65. Eoyle V. Busby, 541. Eubery v. Stevens, 1053, 1064. Eudge V. Bowman, 286. Euffle, Exp., 889. EufBes V. Alston, 662. Eiigg V. Minett, 609. v. Weir, 689. Eule V. Jewell, 834, 838. Eumball v. Metrop. Bk., 1035. Eummens v. Hare, 1002. Eumsey v. North Eastern Ey., 44. Jlusby J). Scarlett, 389, Eusden v. Pope, 1102. Eushbrook v. Lawrence, 683, 684. Eusselt). Langstaffe, 118. V. Eussel, 213. Eussell's Policy, Ee, 1101. Eussell, Exp., 531, 629. ■ Ee, 641. V. Bandiera, 558, 611. V. Bangley, 446. V. Bell, 43, 880. -v. Niemann, 601,602,616, 1026. V. EusseU, 582, 823. V. Smyth, 106, 108. V. Wakefield Waterworks, 518. . v. Watts, 196. Eutherford, Ee, 561, 724, 843, 858. Eutland's case, 131, 153, 692. Eyan v. Sams, 494, 495. Eyder, Exp., 880. V. Wombwell, 473, 475. Eyley v. Hicks, 203. Sacheverell's case, 1055. SacheveriU v. Froggatt, 1038, 1044, 1054. Sadler i>. Leigh, 428. V. Eobins, 107. V. Smith, 95, 821. Saffron Walden Bg. Soc. v. Eayner, 432, 1008, 1009. Sahlgreen's case, 22. Sainsbury v. Matthews, 214, 221. St. Albans v. Battersby, 1048. V. ElUs, 197. . V. Shore, 719. St. Albyn i\ Harding, 355. St. Aubyn v. Smart, 784. St. Cross V. Howard, 647. St. Martin v. Warren, 124 St. Saviour's v. Smith, 1059. Sainter v. Ferguson, 636, 936, 938, 940, 963. Salamau v. Glover, 271. Sale V. Lambert, 230, 371. Salford v. Lancashire, 143, 832. ■ V. Lever, 410, 626, 808. Salisbury's case, Bishop of, 194. Salt «>. Cooper, 138. Salter v. Bradshaw, 357. Salting, Exp., 384. Saltoun V. Houston, 121. Sampson v. Easterby, 121, 198, 1043, 1046. V. Sampson, 182. Samuell r. Howarth, 693. San Eoman, The, 615. Sandars v. St. Neots Union, 513. Sandbach and Edmondson, Ee, 718. TABLE OF CASES. Ixxi Sandeman v. Sourr, 447, 448. Sander's Trusts, 786. Sander v. Heathfield, 1088. Sanders v. Coward, 123, 842. V. Maclean, 1029. V. Meredith, 858. V. Rodway, 661. V. Stuart, 902, 922. Sanderson v. Aston, 348, 695. V. BeU, 784. • 11. Berwick, 928. V. Cookermoutli Ey., 970. V. Graves, 255, 256, 683, 689. V. Symonds, 699. SandiLands, Be, 113. V. Marsh, 456. Sandill v. Franklin, 582, 732. Sandiman v. Breach, 192. Sands v. Clarke, 580. Sandys v. Florence, 170. Saner v. BUton, 190, 197, 699. Sanguinetti v. Pacific Steam Navi- gation, 419. Sankey Brook Co. v. Marsh, 882. Sansom v. Ehodes, 725. Santos V. lUidge, 623. Sara, The, 449. Sard V. Khodes, 769. Sarell v. "Wine, 866. Sargent, Ex p., 117. Sari V. BourdiUon, 180, 226, 229, 232. Sartoris, Re, 1092. Saul V. Jones, 735. Saunders v. Best, 888. V. Milsome, 126, 806. V. Topp, 241, 242. Saunderson «. Grriffiths, 391. V. Jackson, 228, 235, 236. V. Marr, 466, 475. ■ V. Piper, 183, 186, 268. . Foster, 211, 487. ~v. Madder, 651. SavUle V. Tankred, 967. Savin, Se, 954. V. Hoylake Ry., 524, 680. Sawtell i>. Loudon, 704. Sawyer D. Mawgridge, 121. Sawyer and Baring, Be, 200, 716. Saxty V. Wilkin, 767. Say V. Barwick, 605. Say and Seal's case, 274. Sayer v. Wagstaffi, 769. Sayers v. CoUyer, 987. Scadding v. Eyles, 100. Soaife v. Farrant, 170, 604, 610. Scaramanga v. Stamp, 603. Scarf V. Jardine, 389, 416, 457, 684, 686. Scarfe v. Morgan, 646, 647, 675. ScarpeUini i>. Atoheson, 843, 1070. Scattergood v. Sylvester, 329. Schaok V. Anthony, 413. Schibsby v. Westenholz, 109. SchOizzi t>. Derry, 736. SohmaHng v. Thomlinson, 20. Sohmalz v. Avery, 418, 429. Schmidt V. Eoyal Mail Co., 603. Schmitz, Ex p., 108. Schneider v. Batt, 870. • V. Heath, 299, 301. • V. Norris, 113, 226, 235, 236. Schofield V. Corbett, 876. Soholefield v. Lockwood, 274. Scholey v. 'Walton, 767, 864, 866. Schultz V. Astley, 118. Sohulze V. Great Eastern Ky., 920, 921. Schuster v. McKellar, 447. Scotson 1). Pegg, 540. Scott V. Avery, 820. V. BourdiUon, 173. V. Clifton School Board, 514. V. Eastern Co. By., 223, 248. 1). Ebury, 392, 523, 552. V. GUlmore, 644, 678. V. Godwin, 376. V. Hanson, 297, 990. V. Hastings, 137. V. Howard, 1040. V. Irving, 446, 784. V. Jones, 836, 866. D. Littledale, 277. V. Liverpool, 184, 558, 819, 821. V. Miller, 97. V. Morley, 482, 484, 486. V. Pilkington, 107, 111. V. Poroher, 1004. ■ v. Rayment, 973. V. Sebright, 351. V. Surman, 73, 92, 434, 1103. V. Tyler, 658, 659. V. TJxbridge Ry., 746. Scottish Petroleum Co., Me, 20, 312, 314, 322, 324, 328, 399. ScoveU V. BoxaU, 214. Scrimshire v. Alderton, 434. Scrivener v. Pask, 278. Scudamore v. Crossing, 536. Sculthorpe v. Topper, 470. Sea Ins. v. Hadden, 63, 66. Seaborne v. Maddy, 41. Seager v. Aston, 851. Seago V. Deane, 100, 257. Seagram v. Knight, 848, 1088. V. Tuck, 142, 837. Seagraves v. Union Marine Co., 32, 653. Seal V. Claridge, 160. Ixxii TABLE OF CASES. Seaman v. Vawdry, 720, 993. Sear v. House Property Soc, 198, 555. Searles v. Sadgrove, 745, Seaton v. Benedict, 499. V. Mapp, 195. Seddon v. Senate, 184. V. Tutop, 811. Seear v. Lawson, 631. Seeger v. Duthie, 566, 573, 907. Selby V. Jackaon, 504. — V. Selby, 236. Selig V. Lion, 1095. Seligmann v. Le Boutillier, 823. Sellick V. Trevor, 717. Sellinj). Price, 116, 698. SeUs V. Sells, 266. Selway v. Fogg, 45, 322. Semenza v. Brinsley, 425, 427. Sample v. Pink, 541. Serle v. "Waterworth, 205. Seroka v. Kattenburgh, 486. Serraino v. Campbell, 1026. Serrao v. Noel, 811. Servante v. James, 383. Seton V. Lafone, 4. «!. Slade, 725, 726, 988, 1080. Sewell V. Burdick, 1028. V. Evans, 178. Seymour v'. Bridge, 39, 167, 405, 652, 665. V. London Marine Ins., 334. V. London & Prov. Ins., 341, 666, 667. V. Pycbiau, 440. Shackell v. Hosier, 62, 547, 626, 630, 666, 677. Shackle ». Baker, 972. Shaokleford's case, 19. Shackleton i-. Sutcliffe, 720, 991. Shadforth v. Higgin, 573. Shadwell v. Shadwell, 211, 545. Shakespear, He, 481, 483. Shand v. Du Buisson, 1005. v. Grant, 94. V. Sanderson, 1026. Shardlow v. Cotterill, 150, 179, 232. Sharland v. LeifoMLd, 717. V. Spence, 891. Sbarman v. Brandt, 239, 430. Sharp V. MiUigan, 728. r. Taylor, 664, 676. V. Waterhouse, 1038, 1048. Sharpe, Se, 837. V. Foy, 469, 487. V. Gibbs, 805. V. San Paulo Ry., 559, 821. Sharpley ». Louth By., 323. Shattook V. Shattook, 484. Shaw's Claim, 680. Shaw, He, 7C2. r. Foster, 1001. t). Holland, 914. V. Johnson, 831. . ■ V. Pioton, 97, 788, 789. V. Port Phillip Co., 519. ■ V. Robberds, 346. V. Stenton, 929. V. Thackray, 505. ■ V. Woodcock, 77. V. Worcester, 133, 134. Shaw and Birmingham, Se, 949. Shears v. Jacob, 510. Sheehy v. Professional Life Ass., 107. ShefBeld's case, 320, 323. Sheffield v. Eden, 78. V. London J. S. Bk., 76, 167. Sheffield Canal Co. v. Sheffield By., 31. Sheffield Gas Co. v. Harrison, 973. Sheffield Nickel Co. v. Uuwin, 325. Shell, jBs:p., 453. Shelburne v. Biddulph, 1044. Sheldon v. Cox, 46. SheHard, Ex parte, 1005. SheUey v. Nash, 355. Sheltou V. Livius, 152, 154. Shepard, Ee, 138. Shepheard v. Walker, 728. Shepherd v. Berger, 583. V. Bristol and Exeter Ey., 736. . • V. Gillespie, 2. 1'. Harrison, 440, 1028. V. Hills, 142, 143, 831. . ■ V. Johnson, 914. V. Kain, 301. V. Keatley, 722. ■ V. Mackoul, 498. V. Norwich, 14. ■ ■ V. Pybus, 333. Sheppard v. Gilmore, 1060. Sherborn v. Huntingtower, 133. Sherrington's case, 74. Sherry, Ee, 31, 1079. V. Oke, 924. Shield V. WUkins, 697. Shine, Ee, 1105. Ship's case, 20. Ship V. CrosskOl, 292, 313, 320. Shipman v. Thompson, 876. Shipton V. Casson, 48. Shirley i). Davis, 279. V. Stratton, 303. Shirreff v. Wilks, 457. Shore 41. Wilson, 174. Shoreditoh Vestry v. Hughes, 584. Short V. M'Carthy, 845, 852. V. Simpson, 1028. V. Spackman, 428. TABLE OF CASES. Ixxiii Short J!. Stone, 581, 750. Shortredei-. Check, 150, ISl, 227. Shower v. Vanderhorst, 850. Shrapnel v. Laing-, 870. Shrewsbury v. G-ould, 197. ^ „. North Stafford Ky., 523. Shrewsbury & B. Ky. v. London & K. "W.Ey.,507. Shubriok v. Salmond, 600. Shurman i>. Sedgwick, 646. Sibbald v. HiD, 339. Sibbering- v. Earl Balcarras, 357. Sibley ii. Fisher, 703. V. Higgs, 560. Siboni v. Kirkman, 841, 1080, 1083. Sibree v. Tripp, 765, 769. Sichel v. Mosenthal, 964. Sickens v. Irving, 397. Sicklemore v. Thistleton, 189, 563. Sidaway v. Hay, 896. Siddall V. Eawchffe, 807, 808. Sidnam v. "Worthington, 37, 39. Sidwell V. Mason, 853, 864. Sievers v. Boswell, 676. Sievewright v. Archibald, 18, 225, 227, 238. Sifikin V. Walker, 455. Siggers v. Evans, 118. V. Lewis, 741. SHber Light Co. v. Silber, 518. SiUem v. Thornton, 344, 345. SiUs 1). Laing, 67. Silva's Trusts, Re, 604. Simeon i\ Watson, 607. Simmonds, JSxp., 86. V. Swaine, 616. Simmons v. Heseltine, 716. V. London J. S. Bank, 167, 914, 1035. V. EudaU, 703. Simms v. Marryat, 331. Simond v. Braddon, 573. Simonds v. White, 177. Simons v. Great Western Ey., 264. V. Johnson, 797. V. Patchett, 431, 912, 925, 926. Simpson's case, 19. Simpson v. Bloss, 676. V. Clayton, 1044. V. Crippen, 570. V, Eggington, 786. o.Fogo, 110, 111. V. Henning, 694, 761, 893. V. Lamb, 46, 47, 444, 632. V. London and N. W. Ey., 902, 922. V. Marabita, 895. V. Margitson, 172, 732. . V. Nicholls, 647. V. Penton, 68, 206, 255, 256. Simpson v. Thomson, 63, 64, 364. V. Vaughan, 374, 378. V. Westminster Hotel Co., 507. V. Yeend, 623. Sims V. Bond, 420. ■ V. Brittain, 420. V. Brutton, 456, 785. Simson r. Ingham, 787, 790, 793. Sinclair, Se, 1105. V. Baggaley, 730. V. Bowles, 50. 1). Great Eastern Ey. , S53. V. Jackson, 830. Singer Co. v. Clark, 332. Singleton v. Barrett, 100, 102, 778. V. Knight, 456. Sjoerds v. Luscombe, 614. Skaite v. Jackson, 776, 780. Skandinav, The, 576. Skeate v. Beale, 78, 80, 352, 543. Skeet V. Lindsay, 854. Skegness Tramway Co., Be, 524. SkiUett V. Eletcher, 695. Skingley, Ee, 698. Skinner v. London Ins., 569. V. Stokes, 420. Skull 4). Glenister, 179, 185. Slade's case, 55. Slater's Trusts, 356. Slater r. Jones, 769. V. Lawson, 863. Sleap V. Newman, 1054. Sleigh V. Sleigh, 40, 58, 68. Slim V. Croucher, 312. Slingsby's case, 378, 381. Slipper 1). Stidstone, 872. f. Tottenham JimctionEy., 612, 1046. Slooombe v. Glubb, 467. Sloman r. Cox, 701. V. New Zealand, 462. ». Walter, 122, 935. Small V. Gibson, 343. Smalloombe's case, 834. Smallpage's case, 176. Smart v. Obeli, 638. V. Harding, 212. V. Hyde, 585. V. Jones, 215. V. Nokes, 99, 102, 103, 772. V. Sandars, 404, 405, 406, 435. V. Tranter, 1070, 1072. Smeed v. Foord, 916. Smethurst v. Mitchell, 425. V. Taylor, 421. Smidt V. Tiden, 277. Smith and Nelson, He, 822, 824, 826. Smith's case, 297, 299, 309, 324. Smith, Mxp., 428. Ixxiv TABLE OF CASES. Smith, Ee, 96, 142, 871, 878, 892, 1099, 1101. V. Abbott, 553. V. Algar, 542. V. Arnold, 1046. • v. Baker, 74, 75. V. Bank of Scotland, 348. V. Battams, 693, 767, 778. V. Birmingham Gas Co., 513. V. Bond, 123. • 1). Braine, 528. V. Bromley, 676. V. Buchanan, 895. V. Cartwright, 613. v. Chadwick, 292, 298, 313. V. Cherrill, 546. V. Compton, 927, 931. V. Cooke, 189. V. CoweU, 138. V. Cuff, 670. V. Dart, 573, 602. ■ 4). Day, 962. V. Eggington, 1043, 1048. V. Ferrand, 769, 773. V. Green, 919. V. Gronow, 1068. i>. Harrison, 304. V. Hm, 831. V. Hodson, 45, 880. v. Howell, 931. ■ V. Hudson, 243, 261. . V. Hughes, 2, 267, 278, 282, 301, 305, 332. V. Hull Glass Co., 519, 522. V. Hurst, 136. -e. Iliffe, 270, 272. V. Jeffryes, 164, 182. V. Johnson, 818. V. Jones, 54. V. Lambeth, 213. V. Liado, 39. V, Low, 471. V. Lucas, 469. V. Manners, 742. . V. Marrable, 304, 669. V. Mawhood, 622. V. Mercer, 89, 771. V. Monteith, 353, 544. V. Morgan, 140. V. Myers, 572. V. Neale, 220, 233, 236. V. Nicolls, 140, 814. V. Page, 102, 767. V. Peat, 929. V. Peters, 657, 822. V. Plummer, 448. V. Pococke, 838. V. Pyman, 91. V. Robinson, 717. V. Roche, 640, Smith V. Sleap, 94. i>. Smith, 533, 948, 962, 1008, 1009. V. Sorby, 409. V. Sparrow, 647. V. Surman, 214, 221, 234. V. Thompson, 182. V. Thome, 853. V. Tregarthen, 447, 921, 1029. v. Trowsdale, 693, 755. V. Union Bk., 1022. . V. Vertue, 553. V. Walton, 646, 733. V. Webster, 237. V. Weguelin, 461. V. Wheatcroft, 21, 266, 269, 401. V. White, 666. V. Wilson, 164, 173, 576. f . Wood, 645. V. Woodfine, 903. Smout V. Ilbery, 406, 431, 432, 433. Smurthwaite v. WOkins, 1027. Smyth, Exp., 943. v. Anderson, 425. V. North, 1098, 1100. Sneezum, Re, 1098. SneU, Ee, 78. Snellgrove v. Baily, 1003. Snelhng v. Huntingfield, 218. . ■ V. Huutingtower, 256. V. Puliiag, 869. V. Thomas, 233, 690. Snook ». Watts, 502. SnowbaU, Ex p., 407. Snowdon, Ee, 61. V. Davis, 74, 94. Soames v. Edge, 963, 969, 983. Soblomsten, The, 51. Soc. Gen. de Paris r. G«en, 670. V. Tramways Union, 1009. V. Walker, 117, 1007, 1034. SoUy V. Forbes, 800. V. Rathbone, 401. Soltau V. De Held, 960. SoltykofE, Ee, 466, 475. Somerset, Ee, 479. V. Cookson, 966. V. Cox, 1009. Somerville's case, 16. Soper r. Arnold, 86, 88. Sorsbie v. Park, 380. Sottomayor v. De Barros, 34. Souoh V. Strawbridge, 218, 219, 255. Souter V. Drake, 721. South, Se, 138. South Blackpool Hotel Co., Ee, 883. South Carolina Bk. v. Case, 455. South of Ireland CoU. v. Waddle, 512. TAHLE OF CASES. Ixxv South Staffs. Tram. c. Accident Aes., 730. South Wales Ry. v. Redmond, 508. V. "Wythes, 822, 969, 986. South Yorkshire Ry. v. G. N. Ry., 509. Southampton v. Brown, 368. Southby V. Wiseman, 389. Southcomb v. Bp. Exeter, 728. SouthweUi). Bowditch, 184, 414, 415, 436. V. Scotter, 998, 1009. Soward v. Palmer, 771. Sowdon V. Mflls, 908. Spackman v. Evans, 522. Spaight V. Earnworth, 576. Sparenhurgh v. Bannatyne, 465. Spargo's case, 766, 774. Sparling r. Brereton, 641. Sparrow v. Paris, 938, 940. Spaixy's case, 815. Spartali v. Benecke, 168, 724. Spears v. Hartly, 851. Speck V. Phillips, 907. SpeddingtJ. Nevell, 431, 926. Speight V. Gaunt, 403. Spence v. Chodwick, 614. Spenceley v. Robinson, 728. Spencer's case, 685, 1038, 1040, 1041, 1043, 1048, 1051, 1052. Spencer v. Clarke, 1031. V. Harding, 12. V. Marriott, 199. V. Parry, 69. Spering v. Spering, 662. Spice t'. Bacon, 170. Spicer v. Burgess, 705. r. Cooper, 173. V. Martin, 163, 981, 1060. Spickernell v. Hotham, 856. Spiller V. Paris Skating Rink, 392, 523. V. Westlake, 568. Spindler v. Grellett, 735. Spittle V. Lavendar, 442. Splidt V. Bowles, 1052. V. Heath, 614. Spong «. Wright, 854. Spoor V. Green, 720, 845, 927, 1039, 1059, 1082. Spragg V. Hammond, 82. Spratt V. Hobhouse, 97. V. JejEEery, 722. Springhead Spinning Co. v. RUey, 639. Spry V. Emperor, 73. Sprye v. Porter, 631. Spurling V. Bantoft, 928. Spurr V. Cass, 370, 420, 421, 870. Spurrier v. Hancock, 719. Spyye v. Topham, 274. Squire v. Campbell, 981. Stace's case, 508. Staoey «). Elph, 119. Stacldiouse v. Bamston, 795. Stackwood v. Dunn, 872. Stadhard v. Lee, 555, 558. Stafford V. Gardner, 169. . V. TiU, 514. Stagg V. Elliott, 396. Stahlschmidt v. Lett, 850. Staines v. Wainwright, 629. Standard Co., Se, 1034. Standen v. Chrismas, 1042. Standish v. Ross, 83, 97. Stanes v. Stanes, 493. Stanger v. Miller, 879, 881. Stanley v. Chester Ry., 524. V. Dowdeswell, 16, 148. V. Jones, 631, 632. . V. Robinson, 294, 360. c. Stanley, 486, 487. Stanton v. Austin, 574. V. CoUier, 1093, 1094, 1095. V. Richardson, 575. V. Styles, 812. V. Tattersall, 281, 719. Stapilton v. Stapilton, 290. Staple of England v. Bank of Eng- land, 511, 518, 519. Stapleford Coll. Co., He, 411. Stapylton v. Scott, 279. Starey v. Barns, 889. Starr-Eowkett Building Soc, JJe, 583. Startup V. Cortazzi, 912. f . Macdonald, 709, 723, 724, 736, 739, 743. State Fire Ins., Se, 950. Staunton i>. Wood, 570, 724, 728. Stavers r. Curling, 567. Steady. Bawber, 689, 691. V. Poyer, 757. V. Salt, 456. Steam Stoker Co., Se, 744, 746. Steamship Co. Norden v. Dempsey, 173, 177. Stedman v. Gooch, 772. Steeds v. Steeds, 131, 376, 693, 756, 760, 779. Steel's case, 22. Steel V. Dixon, 60, 384. V. Lester, 451. V. State Line Co., 343, 575. Steele v. Harmer, 511. V. M'Kinlay, 209, 422, 1017. V. Mart, 731. • ■ V. Williams, 81. Steer v. Crowley, 717. Steinman r. Angler Line, 602. V. Magnus, 539, 765. Ixxvi TABLE OF CASES. Stephens, Exp., 876. , Re, 835, 836. V. Australasian Ins. , 169, 271. V. Badoock, 93, 403. V. De Medina, 568. ». Reynolds, 454, 455. V. 'Wilkinson, 917. Stemdale v. HanMnson, 790. Steme v. Beck, 939. Sterry v. Combs, 303. Stettin, The, 1028. Stevens v. Bagwell, 630. V. Benning, 999. V. Biller, 434. V. Copp, 1049. Stevenson v. Lambard, 1056, 1067. — V. McLean, 25, 28, 29, 30. . V. Mortimer, 421. V. Watson, 657. Stevinson's case, 197. Steward v. Blakeway, 217. r. Greaves, 367. Stewart's case, 20. Stewart v. Aberdein, 167, 446, 784. V. Cauty, 912. 1'. Eddowes, 159, 235, 705. V. Kennedy, 185, 265. V. Eogerson, 575, 580. V. Todd, 807. . V. West India Steamship Co., 165, 177. Stikeman ». Dawson, 316, 470, 472. StQe's case, 120. Stileman v. Ashdown, 135, 136. Stilk V. Myriok, 639. StilweU V. Wilkins, 360. Stimpson v. Wood, 497. Stirling v. Maitland, 750. Stock V. Inglis, 32. Stookdale v. Dimlop, 32, 260. Stocken's case, 951. Stooker i\ Brocklebank, 968. ■ . «'. Wedderbum, 962, 977, 978. Stookley v. Stockley, 290. Stocks V. Dobson, 1006. Stockton Iron Co., Re, 551. Stoessiger v. South Eastern Ey. Co. , 363. Stogdonj). Lee, 480, 481, 482. Stokes V. Cox, 346. ». Lewis, 43. V. Moore, 235. V. Russell, 1058. Stone, Exp., 377. , Re, 452. . ■ V. City and County Bank, 328. V. Compton, 348. V. Godfrey, 289. V. Marine Ins. Co., 283. V. Marsh, 74. Stone V. Rogers, 45. Stoneham c. Ocean Ace, Ins., 564. Stones V. Dowler, 151, 164. Stooke V. Taylor, 870. Storer v. Gordon, 368, 574. V. Great Western Ry., 970, 982. Storey v. Waddle, 960. Stornaway, The, 1027. Stott 1). Fail-lamb, 538, 768. Stoveld V. Bade, 788. Stowell V. Robinson, 689. Straoey v. Deey, 426. Strachan v. Brander, 630. v. Thomas, 830. Strang, Exp., 883. • 1). Scott, 65, 66. Strauks v. St. John, 204, 721. Straton v. Rastall, 90, 780. Stratton v. Pettit, 204. Strauss v. County Hotel Co., 170. Stray v. Russell, 87, 90. Street v. Blay, 91, 334, 336, 907. V. Rigby, 819, 822. StreUey v. Pearson, 962, 970. Stretton ». Busnach, 489. Stribblehill j>. Brett, 659. Stribley ». Imperial Marine Ins., 340, 341. Strick V. Swansea Tin Co., 640. Strickland v. Symons, 1086. V. Turner, 284, 596. Stringer v. Eng. & Scot. Ins., 564. Strong V. Bird, 766, 795, 1088. V. Hart, 769. V. Harvey, 745, 746. Stroughill V. Buck, 131. Strutt V. Farlar, 898. V. Smith, 44. Stuart V. Diplock, 639. V. London & N. W. Ry., 986. Stubb's Estate, 139. Stubbing «). Heintz, 389. Stubbs V. Holyw-eU Ry., 607, 1084. Stucley V. Bailey, 164, 178, 191, 331. Studds V. Watson, 150, 228. Studholme v. MandeU, 589, 592, 617. Stumm V. Dixon, 62. Stumore v. Breen, 448. . r. Campbell, 867, 870, 874. Sturgeon v. Wuigfield, 1050, 1051. Sturgis V. DareU, 848. Styles?'. Wardle, 731. SufEell V. Bank of England, 696, 098, 700, 702. SufBeld r. Brown, 180. Suffolk V. Cox, 1009. SuUivan, Exp., 728. v. MitcaUe, 625. Sully V. Erean, 326. Summers v. Solomon, 389. TABLE OF CASES. Ixxvii Sumner v. Powell, 374. Sunderland Marine Ins. v. Kearney, 121, 369, 413, 446, 552. Sun Fire Office v. Hart, 682. Suroombe v. Pinniger, 258. Surmau v. Wharton, 1071. Sutherland v. Briggs, 258. V. Pratt, 446. Sutton's Trusts, 838. Sutton, Exp., 402. V. Ciceri, 173. V. Morgan, 946, 947. V. Sutton, 829. V. Tatham, 437. . 1!. Temple, 167, 278, 304, 333. . • V. Toomer, 704. Svendsen v. Wallace, 65. Swain, Re, 835. Swaine v. Swaine, 1008. V. Wilson, 640. Swaisland v. Dearsley, 276. Swan, Esc p., 406. V. Barber, 364, 576, 1027. V. North British Australasian Co., 117. . V. Steele, 458. . v. Strausham, 199. Swansea v. Thomas, 200, 1056, 1058. Swatman ». Ambler, 120. Sweet V. Lee, 174, 218, 236, 254. Sweeting v. Halse, 688. V. Pearoe, 167, 446, 784. V. Turner, 11. Sweetland v. Smith, 924. Sweny v. Smith, 746. Swift f. Jewsbury, 402. V. Swift, 663. V. Winterbotham, 210. Swinbanks, Ex p., 785. Swinburne v. MUbum, 1044. Swindell v. Bulkeley, 848. Swinfen v. Chelmsford, 292. Swinyard «;. Bowes, 771. Swire f . Francis, 94, 318. V. Redman, 384, 386, 695. Syers i). Jonas, 154, 167. V. Syers, 581, 973. Sykes V. Beadon, 676. . V. Dixon, 7, 230, 636. v. Giles, 420, 442. Symes v. Hughes, 674. Symon'scaae, 472. Symons v. Rees, 811. Tadman V. D'Epineul, 974. Tailby v. Izon, 974. Tailors of Ipswich case, 640. Taite v. Gosling, 1045, 1054. Talbot V. Ford, 983. V. Hodson, 113. — — V. Shrewsbury, 72, 125. TaUey v. Great Western Ry., 605. Tallis r. Tallis, 636, 637. TampUn, S.e, 456. • V. James, 263, 266, 267, 279. Tamvaco v. Lucas, 712, 1033. V. Simpson, 81, 769. Tancredt). Delagoa Bay Ry., 999. V. Steel Co.; 174. Tanner v. Christian, 413. V. Smart, 853, 855, 856. Tapley ». Eagleton, 587. Taplin v. Florence, 404, 405. Tapp V. Jones, 552. Tappenden v. Randall, 649, 672 Tapscott V. Balfour, 573, 600. Tarleton v. Allhusen, 768. V. Shingler, 706. Tarn v. Commercial Bk., 1072. Tamer v. Walker, 12. Tarrabochia v. Hickie, 573, 576. Tasker v. Shepherd, 406, 608, 1084. . V. Small, 367. Tatam v. Hasler, 1020. Tate V. Hilbert, 1003, 1004, 1078. V. Hyslop, 339, 341. V. Wellings, 588. V. Williamson, 306, 360. Tatem v. Chaplin, 1047. Tatlucka. Harris, 1014. Tattersall v. National Steamship Co. , 575. Taunton v. Pepler, 113. Tayler v. Great Ind. Penins. Ry., 117. Taylor & Co., Ee, 78. Taylor, Exp., 462, 477. , Ee, 1003. V. Beech, 225. V. Best, 463. V. Bowers, 83, 672, 674, 776. — — V. Brewer, 3. V. Brown, 727. V. BuUen, 301. V. Caldwell, 606, 609, 610. ■ V. Chester, 664, 670, 673, 675. V. Chichester & Midhurst Ry., 623. V. Coenen, 631. V. Dulwioh Hospital, 615. V. Great Northern Ry., 723. V. Hailstone, 498. V. Hare, 90. • V. Higgins, 69. ■ V. Hilary, 206, 683. • i>. Holt, 162, 951. V. Johnston, 360. V. Jones, 32. Ixxviii TABLE OF CASES. Taylor v. Laird, 42, 49, 52. V. Lendey, 92. t'. Liverpool Steam Co., 195, 602. V. Manners, 795, 796. V. N. S. Wales Bank, 385, 694. V. NiohoUs, 33. 1). Plumer, 1104. V. Portington, 985. ■ V. St. Helena, 194. V. Shafto, 720. V. Shum, 1058. v. Stray, 39, 438. V. Taylor, 877. V. Wakefield, 245. Teal V. Anty, 98, 214, 255, 257. Teasdale v. Braithwaite, 492. Teebay v. Manchester, S. & L. Ey., 148. Teed v. Beere, 836, 837. V. Elworthy, 370. Tegetmeyer v. Ltunley, 876. Teigmnoutli Shipping Ass., Be, 100, 104. Telegraph Dispatch Co. v. McLean, 197, 612, 980. Tempest v. Fitzgerald, 247. V. Kilner, 217, 222, 914. Templeman v. Trafford, 643. Tempson v. Knowles, 544. Tenant v. EUiott, 674, 675. Tendring Union v. Dowton, 612, 1053, 1061. Tennant, Exp., 452. Tennent v. GrlasgoTv Bank, 328. Terrell, JExp., 629. Terry and White, Se, 583, 989. Tetley v. Wanless, 763, 797. Teutonia, The, 615. Thacker v. Hardy, 649, 652, 665. Thackwray, Se, 717. Thames Haven Go. v. Rose, 399. Thames and Mersey Ins. v. Hamilton, 192. Tharsis Co. v. Morel, 574, 600. Tharsis Sulphur Co. v. MoEh-oy, 155, 658, 600. . V. Morel, 574, 600. V. Soc. des Metaux, 177, 895. Thatcher v. England, 12. Thiis V. Byers, 601. Thimbleby v. Barron, 799. Thiodon f . Tindall, 310. Thistlewood v. Cracroft, 673. Thol V. Henderson, 913, 915. Thorn V. Bigland, 292. Thomas, Me, 1080. r. Alsop, 495. V. Atherton, 62, 456. . V. Brown, 82, 88, 230, 231. Thomas v. Oad-wallader, 666, 569. V. Cook, 208. V. Bering, 994. V. Edwards, 388. V. Evans, 743. • V. Fredricks, 580, 822. V. Hawkes, 99. V. Hayward, 1049. V. Kelly, 975. V. Lewis, 450. V. Owen, 180. V. Price, 486. v. Ehymney P-y., 605. V. Searles, 529. V. Shillibeer, 760. V. Thomas, 532, 537, 547. V. Williams, 52, 208, 209, 252. Thompson, Ee, 92, 479. . ■ V. Adams, 342. V. Chamock, 819. V. Cooper, 1088. V. Dominy, 1025. . V. Gardiner, 227, 238, 239. V. Gillespie, 575. V. Guyon, 979. V. HakewUl, 382, 1042, 1057. V. Hopper, 344. • V. Hudson, 789, 939. V. Lack, 800. V. Percival, 760. V. Thompson, 671. Thompson and Holt, Re, 716. Thomson's case, 19. Thomson v. Anderson, 826. V. Davenport, 414, 417, 419, 424. V. Eastwood, 357, 358. V. Thomson, 624, 676. V. Wastwood, 643. r. Weems, 345. Thorn v. City Rice MiUs, 587, 734. V. London, Mayor of, 599. Thomborow v. Whitacre, 591, 692. Thornbrough i\ Baker, 1011. Thombury v. Bevill, 7, 30. Thome r. Kerr, 128. V. Smith, 768, 780. Thomett v. Haines, 306, 307. ThornhiUs. Neats, 611, 683. Thornton v. Adams, 194. V. Charles, 227. V. Jenyns, 8. V. Kempster, 18. V. McKewan, 894. V. Maynard, 428, 787, 874. Thoroughgood's case, 264. Thorpe v. Thorpe, 92, 542, 565. Threlfall, Re, 582. V. Borwick, 171. Thrift V. Toule, 602. TABLE OF CASES. Ixxix Thunder v. Belcher, 1055. Thumell v. Balbimie, 557. Thursby v. Plant, 200, 1040, 1058. Thyatira, The, 364. Thynne v. Shove, 972. Tibbits V. George, 1006, 1009. Tidey v. MoUett, 204, 569. Tidmarsh v. Grover, 701. Tidawells, Re, 492. Tielens v. Hooper, 189, 689. Tillett V. Pearson, 138. Tilley v. Thomas, 726, 727. Tillott, Be, 1010. Tilson V. Warwick Gas Co., 143, 524. Times Life Ass., Me, 685. Timmis v. Gibbins, 90, 97. «!.. Piatt, 1077. Timson v. Kamsbottom, 1010. Tinckler v. Prentice, 736. Tindal, Sx p., 888. Tippets V. Heane, 857. Tipping V. Eckersley, 909. Tittertoni). Cooper, 1053, 1097, 1099. Tiverton & Devon Ry. v. Loosemore, 14. Tobacco Pipe Makers v. Loder, 143, 832. Todd V. Emly, 459. V. Gee, 994. V. Kerrick, 171. • V. Maxfield, 140. V. Keid, 446. V. Stewart, 140. Toftw. Stevenson, 831. Toke V. Andrews, 871. Tokert!. Toker, 531. Toleman v. Portbury, 583. Toler V. Slater, 120. Toller V. Carteret, 975. Tolson V. Sheard, 979. Tomkins v. Saffery, 629. Tomkinson r. Balkis Co., 5, 1035. -u. Staight, 241, 243. TonJinson v. Bentall, 40. V. BuUock, 730. Tompkins v. Ashby, 777. Toms V. Wilson, 729. Tomson v. Judge, 358. Tondeur, Exp., 1096. Tooker f . Smith, 204. Topham v. Booth, 860. V. Braddick, 660. V. Morecraft, 96. Tophs V. Grane, 39. Toppin V. Lomas, 213. Topping, Exp., 855, 858. Torrance v. Bolton, 88, 280, 281, 303, 316, 949. Turrington v. Lowe, 421, 439. Totterdell ». Fareham Brick Co., 521. Touche V. Metrop. Warehouse Co., 368, 524. Tourret v. Cripps, 236, 236. Toussaint v. Martinnant, 58. Touteng V. Hubbard, 613. Towers v. Osborne, 221. Towle V. National Guardian Ass., 347, 349. Townley v. Crump, 247. Townsend's case, 25, 26, 28. Townsend v. Crowdy, 83, 85. f . Wilson, 398. Townshend v. Stangroom, 158, 273. Townson v. Tickell, 118. Traheme v. Gardner, 81. Traill v. Baring, 312, 314, 342. Trainer v. Phoenix Ins., 820. Travers v. BlundeU, 190. Tredegar v. Windus, 810. Tredwen v. Bourne, 459. ■ V. Holman, 820. Trelawney v. Thomas, 946. Treloar v. Bigge, 198, 555, 556. Tremeere r. Morison, 1054. Trent & Humber Co., JJe, 915. Tress v. Savage, 204. V. Tress, 662. Trevor, Exp., 729. Trew V. Burton, 699. Trimbey v. Vignier, 176. Trimble v. Hill, 650, 673. Triquet v. Bath, 462. Troughton v. Gitley, 1106. TroweU v. Shenton, 469. Trower v. Newoombe, 297. Trueman v. Hurst, 475. V. Loder, 178, 240, 389, 405, 422. Trufort, Se, 109. Trustees' Co. v. Short, 833. Tucker's case, 22. Tucker v. Barrow, 98, 99, 104. V. Linger, 164, 166, 170. Tuokey v. Hawkins, 123, 842. Tuff, Ee, 492. TufneU V. Constable, 795. Tulk V. Moxhay, 1061. TuUy V. Howling, 573, 574. V. Terry, 922, 1030. Tupper V. Foulkes, 113, U4, 388, 391, 400. Turcan, Ee, 974, 1031. TumbuU f . Forman, 485. TumeU v. Sanderson, 818, 824. Turner, Ee, 139. V. Buck, 956. . V. Burkmshaw, 560, 945. V. Caldwell, 60S. V. Diaper, 868. . V. Goldsmith, 609, 904. Ixxx TABLE OF CASES. Turner v. Hardoastle, 917. V. Hardey, 1073. V. Harvey, 305. • V. Haydeu, 735. V. Hookey, 443. ■ V. Liverpool Docks, 716. V. ReynaU, 642. V. Robinson, 49. V. Eookes, 498. V. Samson, 562. V. Tepper, 810. V. Thomas, 426, 427, 873, 879. j>. Trisby, 474. V. Turner, 797. V. Vaughan, 660. Turner and Skelton, £e, 88. Turney v. Dodwell, 857, 859. Turpin v. Bilton, 445. V. Chambers, 583. Turquand, &p., 71, 1102. V. Board of Trade, 1092. V. Fearon, 9, 15, 146. • V. Rhodes, 285, 718. T-axtonv. Benson, 356, 1012. Tuther v. Caralampi, 935. Twaddle v. Atkinson, 365, 532, 536. Twining v. Morrice, 280, 308. Twopenny v. Young, 806. Twycross v. Dreyfus, 461. ». Grant, 525, 1074, 1075. Tvynam v. Pickard, 1056. Twyae's case, 531. Tye V. Fynmore, 15, 154. Tyers v. Rosedale Co., 691, 913. Tyler v. Bland, 740, 745. V. Yates, 356. Tynan v. Bridges, 797. Tynte, jEx p., 830. Tjrie v. JFletcher, 92. Udell V. Atherton, 299, 318. Uhde V. Walters, 172. Undaunted, The, 333. Underhill v. Devereux, 142. . V. Horwood, 162, 380. Underwood v. Nicholls, 784. Ungley v. Ungley, 211, 212, 257, 258, 718. Union Bank of Canada v. Cole, 12. UnionBankof London ti. Ingram, 940. V. Lenanton, 246. i>. Munster, 308, 320. Union Bank of iEanohester v. Beech, 801. United Kingdom Ass. v. NevUl, 422. United Merthyr Co., Se, 75. United Ports Ins., lie, 685, 882. United States v. "VVaguer, 462. Unity Bankiag Ass., Hx p., 470. Universal Banking Corp., jRe, 883. Unwiu V. Leaper, 677. Upperton v. Nickolson, 720, 726. Upton V. Ferrers, 955. Urquhart v. Macpherson, 325, 803. Usparicha v. Noble, 463, 648. Vadala v. Lawes, 110. Vale V. Oppert, 1095. Vale of Neath Coll. v. Furness, 148, 232, 237, 445. Valentini v. Canali, 477. Vallance, He, 660. — — V. Dewar, 340. Vallans v. Fletcher, 151. Vallee v. Dumerque, 109, 176. Valpy V. Manley, 74, 77. V. Oakeley, 768, 912, 913. V. Sanders, 75. Van V. Corpe, 317. Van Casteel v. Booker, 716. Van G-heluive v. Nerinckx, 139. Van Hagan, Se, 485. Van Toll v. South Eastern Ry., 13. Van Wart v. WooUey, 771. Vance v. Lowther, 700, 701. Vandenbergh v. Spooner, 229. Vanderdonokt v. Thellusson, 735. Vandespar v. Duncan, 173. Vaudyck v. Hewitt, 648, 674. Vane ». Vane, 847. Vansittart v. Vansittart, 663. Varney v. Hickman, 651. Vaughan v. Hancock, 212, 253. V. Vanderstegen, 484, 487. ■!'. Weldon, 34. VauqueUu v. Bouard, 109. Vavasour v. Krupp, 462. Veal, Se, 1003. Veitch V. Russell, 642. Venezuela Ry. v. Kisoh, 324. Vere v. Ashby, 391, 457, 458. Verlander». Eddolls, 641. Vemede v. Weber, 572. Vernon v. HaUam, 634, 635, 972 V. Keys, 3, 296, 297, 314. V. Smith, 1044, 1047, 1048. Vertue v. East Anglian Ry., 1033 Vibart v. Coles, 808, 1087. Vickers v. CoweU, 376. ■ V. Vickers, 822. Victors V. Davies, 37. Vigers v. Pike, 322. Vine, i:xp., 1094. V. Mitchell, 306. Vines r. Arnold, 811. Viney r. Bignold, 820. TABLE 01" CASES. Ixxxi Viney v. Chaplin, 785. Vint V. Hudspeth, 889. Violett V. Sympson, 846. Viret«). Viret, 211. Viyian v. Champion, 1059. Vlierboom v. Chapman, 51. Voiuet V. Barrett, 110. "Voisey, Exp., 203, 629. Vollans V. Fletcher, 18. Vooght v. Winch, 141, 813. Voss, Re, 913. Vouillonj;. States, 163, 980. VuUiamy v. Koble, 876. Vynior's case, 404, 612, 822, 826. Vyse V. Brown, 96. V. Foster, 957. V. Wakefield, 561, 562, 587, 591. Vyryan n. Arthur, 199, 1043, 1044. Waddell v. Blockey, 325, 326, 430, 912. V. Woolfe, 722. Waddington v. Bristow, 214. — V. Oliver, 712. Wade's case, 734, 743, 745. Wade V. Simeon, 544. Wadham v. Marlowe, 1046, 1097. Wadling v. Oliphant, 1105. Wadsworth v. Pickles, 886. V. Queen of Spain, 461. V. Smith, 558, 659, 821. WagstafE v. Anderson, 418. Wain V. Bailey, 707. «j. Warlters, 229, 230. Wainford v. Keyl, 486. Wainman v. Kynman, 858. Wainwright v. Bland, 346. Wait V. Baker, 716. Waithman v. Wakefield, 499. Wake V. Harrop, 163, 158, 159, 263. Wakefield v. Brown, 381, 1042. V. Newbon, 78. Waldo 1). Martin, 624. Walker's case, 200, 1068. Walker r. Barnes, 741, 947. V. Bradford Bank, 998, 999. V. Butler, 858. «. Chapman, 672. V. Clements, 871. v. Constable, 223, 945. 1). Great Western Ry., 390. V. Hatton, 929, 931, 1060. V. Hirsch, 452. V. Hobbs, 304. V. Jeffreys, 979, 980. . V. London & N. W. Ry., 558. V. Matthews, 76. V. Mottram, 634. V. Nevill, 799. L. Walker v. Nussey, 249, 254. • V. Perkins, 660. ■ V. Bostron, 1014. V. Witter, 106. Wall's case, 25. Wall V. Loudon Real Prop. Co., 898, 926. Wallace v. Hardacre, 628. V. Kelsall, 760, 779. Waller ». Lacy, 793, 854. Wallingford v. Mutual Society, 939. Wallington v. Cook, 948, 955. WaUis V. Day, 585, 635. ■ V. Hirsch, 823. V. LitteU, 161. 0. Portland, 624, 630, 632. V. Smith, 42, 909, 940, 941, 942. Walmesley v. Cooper, 799, 802. Walrond v. Walrond, 124. Walsh V. FusseU, 1049. V. Lonsdale, 204. V. Trevanion, 189. • V. WaUey, 551. V. Whitcomb, 407. Walstab v. Spottiswoode, 87. Walter v. Cubley, 704. V. Everard, 473, 474. V. James, 393, 398, 786. Walters v. Northern Coal Co., 986. V. Walters, 128, 1089. Walton 41. Hastings, 704, 706. V. Mascall, 559, 563, 947. V. Waterhouse, 598. Walwyn v. Coutts, 786. Wancke v. Wingren, 34. Wankford v. Wankford, 1072, 1087. Wanklyn i). Wilson, 98. Want 1). StaUibrass, 718, 726. Warburton v. Storr, 612, 822. Ward's case, 22. Ward V. Byrne, 634. V. Eyre, 950, 951. V. Hobbs, 301, 334. V. Hunter, 866. v.^ Lawson, 946. u." Lloyd, 627. V. Lumley, 702. V. New Zealand Bank, 383, 384, 800. V. Sharp, 358. V. Turner, 1003. Warden v. Jones, 211, 259. Warder v. Saunders, 1095. Warin v. Scott, 649. Waring'a case, 838. Waring v. Favenck, 424. V. Manchester Ry., 558, 977. V. Scotland, 718. Warlow V. Harrison, 27, 307, 404, 408. / Ixxxii TABLE OF CASES. ■Warner v. M'Kay, 425, 426. 1). ■Willington, 228, 229, 232, 233, 236. "Warrant Finance Co., Ee, 954. Warre i>. Calvert, 908. Warren, Me, 765. Warriner r. Rogers, 1002. Warrington v. Early, 701. V. Furbor, 563. Warwick v. Bruce, 214, 476. V. Slade, 240. Warwicke v. Noakes, 772. Warwicker v. Bretnall, 658. Washbourne v. Burrows, 214. Waterhouse v. Keen, 81. V. Skinner, 570. Waters, Exp., 7. ■ , Me, 956. V. Monarch Ins. 657. ■ V. Thanet, 559, 562, 846, 855, 856. V. Tompkins, 792, 857. V. Towers, 915. Watkins, Exp., 1101. . V. Maule, 1019, 1078. V. Nash, 115. Watkyns v. Eymill, 13, 14. Watling V. Horwood, 223. Watney v. Trist, 973. Watson, Exp., 58, 609, 1106. , Ee, 191, 392, 1073. V. HoUiday, 891. V. King, 406, 407. V. Marston, 266. V. Mid- Wales Ey., 876, 1011. V. Pears, 193. ■ V. Shankland, 91. V. Spratley, 217. ■ V. Swann, 393, 446. V. Woodman, 838, 864. Watters v. Smith, 780. Watts V. Brooks, 676. V. Friend, 214, 221, 249. V. Kelson, 180. V. Porter, 1007. V. Shuttleworth, 694. . V. Watts, 14. Waugh, Ee, 1093. V. Bussell, 274, 699. V. Carver, 461. V. Cope, 767, 792, 857. V. Morris, 664, 667. Way V. Hearne, 275. Wayman ». Hilliard, 98. Waymell v. Reed, 664. Wayne's Coal Co. v. Morewood, 46, 49, 561. Wayne's Iron Co. v. Morewood, 768, 907. Weall, Ee, 403. Weatherall v. Geering, 1001, 1045. Weaver, Me, 504. Webb's PoKcy, 1101. Webb's Trust, 196, 198. Webb«i. Austin, 1051. V. England, 968. V. Fairmaner, 172, 729, 732. V. Fox, 1104. ». Heme Bay Commis., 1013. • V. Hewitt, 800. V. Hughes, 726, 727. 11. Plummer, 169, 197. 1). RusseU, 1038, 1041, 1055, 1056. v. Smith, 443. V. Spicer, 118, 156, 799. V. Stenton, 483. Webber v. Lee, 215. ». Maddocks, 706. V. TiviU, 63. Webster v. Armstrong, 811, 814. V. British Empire Ass., 944, 950, 1031. V. Cecil, 267. V. Dillon, 961. V. Kirke, 843. V. Seekamp, 448. Wedgwood v. Adams, 983, 984. Wedlake v. Hurley, 93. Weed*). Ward, 817. Weeks «. Maillardet, 116. V. Propert, 431, 523. Wegener v. Smith, 1026. Weguelin v. CeUier, 364. Weidner v. Hoggett, 21. WeigaU v. Waters, 699. Weir V. Bell, 318, 320. Welby V. Drake, 765. Weld V. Baxter, 1050. Weldon v. Neal, 849. Welford v. Beazeley, 226, 235. Welland Ey. v. Blake, 144, 831. Weller r. Baker, 488. Wellesley v. Wellesley, 964. Wells V. Abrahams, 71. V. Chelmsford Loo. Bd., 990. V. Foster, 625. V. Gu-ling, 669. V. Hopkins, 336, 337. V. Horton, 219. V. Kilpin, 138. «>. Kingston-upon-Hull, 215, 613. V. Malbou, 490. V. Maxwell, 727. V. Williams, 463. Welman v. Welman, 272. Welsh Flannel Co., Ee, 952. Wenlook v. River Dee Co., 57, 507 509, 510, 522. ' TABLE OF CASES. Ixxxiii Wenman v. Lyon, 211. "WennaU v. Adney, 537. Weutworth v. Bullen, 133. V. Ohevill, 143, 831, 890. V. Cook, 1080, 1083. Werner v. Humphreys, 32, 50, 1080. West V. Baker, 879. V. Blakeway, 692. V. Dobb, 1045. ■ V. Downman, 143. V. Houghton, 909. V. SHp, 382. V. Steward, 117, 702. West of England Bank, Se, 882, 883, 1067. V. Batohelor, 1007. West India Tel. Co. v. Home & Colonial Ins., 192, 344. West London Bank v. Kitson, 293, 431, 523. V. Eeliance Soc, 1006. Westacott v. Bevan, 870. Western v. MoDermott, 960, 1061. ■ V. Eussell, 993. Western Bank v. Addie, 325. Western Wagon Co. v. West, 964, 998, 1009. Westfield v. Great West. By., 414, 610. Westhead v. Sproson, 9, 12. Westlake v. Adams, 634. Westley v. Clarke, 780. Westmeath v. Salisbury, 661. V. Westmeath, 661, 663. Westmoreland Slate Co. v. Feilden, 107, 108, 143, 805. Weston's case, 472, 559. Weston V. Collins, 567. V. Downes, 335. V. Metrop. Asylum, 583, 934. V. Savage, 87, 718. Westropp V. Solomon, 39. Westrup V. Yarmouth Steam Co., 449. Westwick v. Theodor, 577. West wood f . Secretary for India, 611. WethereU v. Jones, 622. 1>. Julius, 1094. V. Laugston, 375, 802, 997. Weymouth Steam Packet Co., Se, 776. Whaley v. Bagenal, 260. Whaley Bridge Go. i). Green, 359. Wharton v. Mackenzie, 473, 475. V. Walker, 1014. Wheal BuUer Consols, lie, 22. Wheatley v. Lane, 1074. D. Silkstoue Coal Co., 1034. ■ J,. Westminster Coal Co., 969. V. Williams, 100, 101, 103. Wheeler v. D'Esterre, 726, 985. ■ V. GiU, 956. Wheelton v. Hardisty, 346, 346, 347. Whelpdale's case, 350, 372. Whincup r. Hughes, 92, 607, 1083. Whistler v. Eorster, 1019. Whitaker, He, 6, 505, 529, 530, 537. Whitchurch v. Bevis, 257. Whitoomb v. Whiting, 863. White's case, 775. White, Uxp., 441. V. Beeton, 578. V. Bluett, 534. V. Bradshaw, 281, 719. V. Corbett, 842, 888, 889. ■ ■ V. Cordwell, 850. t>. Cuyler, 399, 498, 600, 805. V. Garden, 295, 327. V. Hunt, 1053. V. Nutt, 719. V. Proctor, 237, 238, 240. ■ V. Sealy, 935. — —V. Spettigue, 71. V. TyndaU, 378, 379. V. White, 271. V. Woodward, 9, 563. Whitehead, Exp., 211. ■ V. Howard, 852. V. Izod, 438. 1). Lord, 844. V. TattersaU, 818. V. Tuokett, 395, 437. V. Walker, 843. Whitehouse, Sc, 882, 883. Whiteley, Se, 957. Whitelook v. llusgrove, 178. Whiteman v. Hawkms, 906, 908. Whitham v. Eershaw, 899, 971. Whiting V. Burke, 60. Whitley, Se, 388, 400, 402. r. ChaUis, 972. Whitlock's case, 1052, 1055. Whitlock v. Underwood, 723. Whitmore v. GUmour, 1097, 1104, 1106. Whittaker, Exp., 295, 306. V. Howe, 637, 960, 972. V. Kershaw, 143, 479, 485, 486, 1087. WhittemoreD.Whittemore, 721, 989. Whittenbury v. Forrester, 403. AVhitwell V. Perrin, 416, 451. Whitwood Co. r. Hardman, 961. Whitworth v. Gaugain, 137. Whyman v. Garth, 160. Whyte V. Ahrens, 102, 410. V. TyndaU, 380. Wioldiam v. Wiokham, 207. Wicks, Bx.p., 1105. Widders v. Gorton, 707, 772. /2 Ixxxiv TABLE OF CASES. Wiedemann v. Walpole, 210. Wieler v. Sohilizzi, 338. "Wienholt v. Roberts, 447. Wigg V. Shuttle-worth, 678. Wiggins V. Lord, 95. Wigglesworth v. Dallison, 169. Wigaell V. Blind School, 898, 963. Wilby i>. Elgee, 542, 865. Wilcox V. Eedhead, 17, 555. Wild V. Harris, 597. ». Williams, 803. Wilde V. Clartson, 123, 763, 935. f.Fort, 87, 725. V. Gibson, 303, 310. V. Waters, 216. Wilder v. Pigott, 469. Wildes i>. Ludlow, 208. V. Russell, 73. Wilkinson's case, 20. Wilkinson v. Alston, 444. V. Anglo- CaUfornian Co., 116. V. Byera, 539, 765. V. Calvert, 682, 733. V. CandHsh, 785. V. Clements, 568, 578, 969, 978. V. Evans, 228, 233. V. Gaston, 193, 730. V. Gibson, 490. V. Godefroy, 95, 97. — V. Hall, 381. V. Johnson, 89, 698. ■ V. Eing, 436. V. Lindo, 802. V. Lloyd, 87, 90, 559. v. Torkington, 986. ■ V. XJnwin, 209, 1019. ■ V. Verity, 560, 846. V. Wilkinson, 407. Wilks V. Atkinson, 221, 222. V. Back, 400. V. Davis, 822. Willan V. WUlan, 965. Willatts V. Kennedy, 541. WiUcock V. Terrell, 625. WUles V. GreenhiU, 1010. Willesford*. Watson, 823, 824. Williams' case, 371. Williams and Stepney, Re, 817. WUliams, Exp., 629. Re, 848, 1090. V. Bailey, 353, 360, 628. . r. Baily, 662. V. BoUand, 106, 108. V. Boaanquet, 1063. V. Briscoe, 148, 985. ■ V. Bryant, 371. V. Burgess, 249. V. Burrell, 196, 199, 200, 928, 1056. V. Carwardine, 3, 12, 295. Williams t!. Chambers, 1105. V. Colonial Bank, 76, 118, 1034. «. Deacon, 783, 784. V. Earle, 929, 1043, 1045, 1046. V. Evans, 258, 442, 783. V. Everett, 93. ■ ■ V. Griffith, 101, 767, 853, 864. V. Hathaway, 193, 552, 841. V. Hayward, 1050, 1051. V. Heales, 1054. V. Hedley, 677. ■ V. James, 194, 787. V. Jones, 104, 105, 108,218,672. V. Jordan, 229. V. Lake, 229. V. Leper, 208. . ■ V. Lloyd, 610. V. Mercier, 1068. V. Millington, 441, 442, 443. r. Moor, 466. ■ V. Morris, 215. v. North China Ins., 391, 655. V. Paul, 647. ■ V. Protheroe, 632. ■ • V. Eawlinson, 789. ■ ■ V. Reynolds, 912, 913. V. Smith, 475, 866. V. Sorrell, 1005. V. Stern, 539, 692. v. Walker, 484. V. Wentworth, 503. i\ Wheeler, 252. D. Williams, 139, 972. Williamson v. Barbour, 102, 440, 837. V. Barton, 238. V. Clements, 538. V. Dawes, 490. V. Hine, 409, 450. V. Naylor, 835. V. Watts, 475. V. Williamson, 957, 1045, 1052. Willingham v. Joyce, 979. Willins i'. Smith, 475, 866. Willis V. Baldwin, 667. r. De Castro, 800. V. Newham, 857. V. Peckham, 541. V. Thorp, 646. WiUisou V. Patteson, 464. WUhuott V. Barber, 982. Willoughby, JSx p., 168, 769. r. Backhouse, 794. r. Holyoake, 485. V. Middleton, 196. r. WUloughby, 67. Wills V. Miuray, 1074. V. Nurse, 489. V. Stradling, 258. V. Sutherland, 367. Willyams v. Bullmore, 660, 677. TABLE OF OASES. Ixxxv Wilmer v. Currey, 374. Wilmot «). Rose, 1047. Wilson's ease, 472. Wason, Exp., 371, 472. V. Barthrop, 431. V. Bury, 520. V. Coupiand, 1015. V. Coxwell, 1090. V. Pinch-Hattou, 304, 569. v. Ford, 498. V. Furness Ry., 970. V. General Screw Coll., 901. V. Glosaop, 497. V. Harman, 943. V. Hart, 1047, 1061, 1063. V. Hicks, 906. V. Johnstone, 53. V. Kearse, 477. V. Keating, 412, 778. 13. Knubley, 127. V. Lancashire & Xorkshire Ry., 920. V. Lloyd, 686. V. London SteamNav. Co., 578. V. Moore, 874. V. Muskett, 662. V. Nelson, 654. ». Northampton & B. Ry., 899, 959, 970. V. Poulter, 75, 393. V. Raffalovick, 64. V. Rankin, 667. V. Ray, 82, 670. V. Screw Coll. Co., 916. V. SeweU, 683. V. Short, 430, 631. V. Smyth, 496. ■B. StrugneU, 626, 674. V. Thombury, 84. V. Tumman, 390, 391. V. Wallani, 402, 1099. • V. West Hartlepool Ry., 259, 515, 969, 977. ■ V. WiUiams, 99-5. V. Wilson, 99, 103, 273, 274, 492, 661. V. Xantho, 602. WOson & Son, lie, 824. Wiltshire v. Sims, 434. Winch V. Keeley, 1102. V. Winchester, 270, 285, 989. Winchelsea's Policy Trusts, 41, 68. WindMU Local Bd. v. Vint, 627, 628. Windle v. Andrews, 947. Windsor's case. Dean of, 1038, 1046. Wing V. Mill, 40. Winn V. Bull, 17, 147, 148. Winsmore ti. Greenbank, 368. Winstone v. Linn, 577. L. Winter, Re, 880. V. Trimmer, 936. Wintle V. Crowther, 454, 458. Witham v. Kershaw, 929. Witherby v. Raokham, 1066. Withers v. Bircham, 381. 1). Reynolds, 571. Withington v. Herring, 396. ». Tate, 785, lOO.i. Withy V. Cottle, 726, 964. Witt, Re, 434. 1). Amisa, 1003. Wittersheim v. Carlisle, 842, 843. Witton V. Bye, 796. Wolfe V. Mathews, 640. Wolfe V. Koppell, 206. V. Oxholm, 464. WoUaston v. Berkeley, 1070. V. Hakewill, 1051, 1052, 1053, 1057. Wolyerhampton Bk., Exp., 73, 677, 1104. Wolverhampton Ry. v. London & N. W. Ry., 960, 968. Wolveridge v. Steward, 121, 194, 198. Wolverton Estates, Re, 182. Wontner v. Shairp, 19. Wood's case, 19. Wood V. Akers, 873. V. Aubrey, 360. V. Barker, 669. V. Beard, 204, 232. V. Benson, 9, 209, 210, 252, 547, 678. V. Bernal, 727, 995. V. Copper Miners' Co., 819. V. Downes, 630, 632. ■ V. Dwarris, 346. V. Griffith, 825, 993. V. Leadbitter, 215. V. Manley, 215. c. Midgley, 148, 232. V. Murton, 768. V. Prlestner, 178, 181. V. Richardson, 982. V. Rowcliffe, 191, 966. V. Scarth, 164, 267, 930. V. Slack, 116, 698. V. Smith, 878. V. Tate, 514. Woodbridge v. Spooner, 156. Woodburn v. Grant, 1008. Woodgate v. Godfrey, 776. Woodger v. Great Western Ry., 922. Woodhouse v. Shepley, 356. Woodland v. Fear, 90. Woodley v. Michell, 602. Woodman v. Chapman, 1067. Woods V. De Mattos, 670. 9 Ixxxvi TABLE OF CASES. Woodward v. G-yles, 938. Wookej V. Pole, 1036. Woolcott V. Peggie, 584. Wooldridge f . Bishop, 1072. Woolfe V. Home, 442, 670, 724. WooUam v. Heam, 158, 268, 273, 280. Woollen V. Wright, 391. WooUey v. Clark, 1077. Woolveridge v. Steward, 1059. Woottom'. Staff enoni, 1041. Worcester CornExoh. Co., 511. Worley v. Harrison, 653. Worsley v. Swann, 960. V. Wood, 150, 556. . «. Worsley, 662. Worssam, Se, 358. Worth's case, 320. Worthington v. Curtis, 656, 675. V. Grimsditch, 767, 869. V. Wigley, 770. Wragge's case, 1009. Wray ». Kemp, 401. V. Milestone, 98, 101, 758. Wright's case, 314, 322, 323. Wright, Ee, 1093. V. Bigg, 23. V. Bnrroughea, 1054. V. Chard, 486. V. Colls, 87. v. Dannah, 239. V. Fairfield, 1093. V. Coff, 271. V. Hickling, 789. V. Howard, 727. V. Laing, 793. V. Leonard, 486. V. Maidstone, 708. V. Marwood, 65. V. Monarch Bg. Soc, 821. V. Newton, 87. V. New Zealand Co., 601. V. Stavert, 213. V. Vanderplank, 78, 360, 361. Wrightupti. Chamberlain, 918, 931. Wulff V. Jay, 385. Wyatt, Re, .1010. V. Hertford, 424, 777. V. Hodson, 863. V. Metrop. Board, 524. Wycombe By. v. Donnington Hos- pital, 267. Wyld V. Pickford, 170, 603. WylUe V. Wilkes, 935. Wylson V. Dunn, 227, 556. Wynch D. Grant, 126. Wynn v. Shropshire Union By-, < 680. Wynne's case, 19, 120, 286. Wynne v. Callander, 671. v. Price, 967. Xenoe«>. Wickham, 114, 445, 511. Yarrow v. Yarrow, 503. Yates, Re, 216. V. Aston, 46, 806. V. Freokleton, 785. V. Gardiner, 667. V. Hoppe, 405. V. Nash, 363. V. Pym, 173. V. Whyte, 63, 64. Yeates v. Groves, 1006. Yeatman v. Yeatman, 1074. Yellowly v. Gower, 1065. Yeomans ». Williams, 795, 796. Yewdall, Re, 894. Yglesias v. Eiver Plate Bk., 769. Yielding and Westbrook, Re, 924. York, Re, 1089. N. & B. Ry. V. Crisp, 13. Tramways Co. v. WOlows, 323, 399. Yorkshire Bank v. Beatson, 455. Wagon Co. f.Maclnre, 609, 671. Young, Exp., 384, 8i2. V. Ansten, 145, 155. V. Bank of Bengal, 881. V. Cole, 89. V. English, 788. V. Grote, 118, 701, 702. V. Higgon, 729. V. Hunter, 421. V. Kitchin, 868, 876, 907, 1011 V. Leamington, 515, 517. V. Murphy, 300. V. Rainoook, 190. V. Schiller, 159. V. Smith, 196, 198, 274. V. Timmins, 636. V. Walhngford, 1074. Zouch V. Parsons, 466. Zunz V. South Eastern By., 13. PART I. THE FORMATION OF CONTRACTS. Chapter I. SIMPLE CONTEACTS. Sect. I.— SIMPLE CONTRACTS FORMED BY AGREEMENT. § 1. Principles of Agreement. PAOE Simple contracts by agreement 1 Agreement in general — evidenoe of agreement 2 Agreement as source of contract — promises 3 Representation of fact — warranty of fact — liability for representation acted upon 3 Consideration — voluntary promises 6 Executed and executory considerations — mutual promises — past consideration 6 Form of simple contract by agreement — express and im- plied contracts — contracts implied in law 9 Contracts in writing 10 Contracts in English law have been divided into three classes, distinguished by their modes of formation : namely, Simple Contracts, Contracts under Seal, and Contracts of Kecord («). It is purposed to treat of the formation of contracts in this order ; commencing with Simple Contracts, simple because the principles of formation of contracts of that class t,y\gree- are of a less technical and more elementary character than ™'^^^- those of contracts of the other classes. — Simple contracts may again be divided into two classes, according to the mode of (rt) 2 Blackst. Com. 46.3. CONTKACTS BY AGREEMENT. Pakt I. formation : namely, simple contracts formed by agreement, and simple contracts arising independently of agreement or contracts implied in law. Agree- ment. Evidence of agree- ment. Agreement may be defined generally as consisting in two persons being of the same intention concerning the matter agreed upon. The intention of a person can be ascertained by another only by means of -outward expressions, as words and acts ; and for the purpose of agreement there must be a communication of intention between them by means of such expressions. Accordingly, the law judges of the intention of a person by outward expressions only ; and it judges of an agreement between two persons exclusively from those expressions of their intentions which are communicated between them (b). Consequently an intention not expressed or not communicated, or withdrawn before communicated, or communicated only to a third person, is, in general, in- operative and immaterial to the question of agreement (c) . The law imputes to a person an intention corresponding to the reasonable meaning of his words and actions. .And "words are to be understood in courts of justice in the sense in which the person using them wished and believed that they should be understood by the person to whom they were addressed " (d). Where acts are inconsistent with words, the former are accepted as more reliable evidence of intention than the latter ; and acts may in some cases prove the in- tention even in opposition to words, according to the maxim, "nou quod dictum, sed quod factum est inspicifur" (e). The law also imputes presumptively a rightful intention to words and acts. And "where a man does an act that may be (J) Blackturn, J., Smith v. Hughes, L. E. 6 Q. B. 607 ; 40 L. J. Q. B. 227 ; citing Freeman v. Cooke, 2 Ex. 6.54 ; and see Cornish v. AUngton, 4 H. & N. 549 ; 28 L. J. Ex. 262. (c) See Cox v. Troy, 5 B. & Aid. 474 ; Bramwell, B., Browne v. Sarc, 3 H. & N. 495 ; 27 L. J. Ex. 376 ; Shepherd v. Gilkspie, L. E. 3 Ch. 764 ; 38 L. J. G. 67 ; Re East England Sanl;'L.'&. iCh.li; 38 L. J. C. 121. [d) Campbell, L. C, Piggott v. Stratton, 1 D. P. & J. 33 ; 29 L. J. C. 9 ; see Hannen, J., Smith v. Sughes, L. B. 6 Q. B. 610; 40 L. J. Q. B. 221. (e) Co. Lit. 36 a; see Croft t. Lumley, 6 H. L. C. 672 ; 27 L. J. Q. B. 321 ; Davenport v. The Queen, L. E. 3 Ap. Ca. 131. PRINCIPLES OF AGREEMENT. rightfully performed, he cannot say that that act was in- Ch. i. tentionally and in fact done wrongfully "(/) ; according to '^°'^' the maxim, "allegam suam turpitudinem non est audiendiis."- The motive of a person in expressing an intention is in Motive, general immaterial to the question of agreement, and cannot be inquired into((/). An agreement as the source of a legal contract imports Agree- that the one party shall be bound to some performance, source of which the latter shall have a legal right to enforce. And ^°^*''^'=*- o ID Promises. the intention of the one party as to the performance, expressed to, and accepted by the other, for the purpose of creating the right, constitutes a promise. Promissory ex- pressions reserving an option as to the performance do not create a contract : as in cases of employment upon the terms of such remuneration as the employer thinks right to give (h) ; or upon the terms of being remunerated by a legacy (i) ; promissory settlements on marriage, not reduced to a formal contract, but intended merely to hold out expectations (A-) ; and subscriptions to charities, which are neither intended nor accepted as legally binding (/). Representations made by a person to another require Represen- further to be distinguished : as being representations of fact. future acts, which, if intended to be binding, constitute pro- mises strictly so-called ; and representations of matters of fact. " There is a clear difference between a representation of fact, and a representation that something will be done in the future. A representation that something will be done in (/) Jessel, M. R., He BalletCs 315; 28 L. J. Ex. 164; but see /««•!/ Estate, L. R. 13 C. D. 727; 49 L. J. v. Busk, 5 Taunt. 302 ; Brijant v. C. 428. Flight, 5 M. & "W. 114. {g) Eldon, L. C, Downshire v. (») Osborn v. GuyU Hospital, 2 Str. Sandys, 6 Ves. 114 ; per cur. Vernon 728. See Baxter v. Gray, 3 M. & G-. V. Keys, 12 East, 637 ; /) . Writing alone is not a sufficient solemnity to render a promise legally bind- ing without a sufficient consideration to support it. Thus, with negotiable instruments, as bills of exchange and pro- missory notes, though by the custom of merchants a con- sideration is presumed to exist, in the absence of proof to the contrary, yet as regards parties between whom they are proved to pass without any consideration in fact, they are void of binding effect at law and in equity (s) . The consideration of a promise maybe executed or executor i/. An executed consideration is some act performed or some value Executed and execu- tory con- siderations. (m) Fer cur. Ormrod v. Ifuth, H M. & W. 664. {x) Plowden, 308, 309 ; Knight- Bruce, V.-C, Kekewich v. Ifanning^ 1 D. M. & G-. 176 ; 21 L. J. C. 581. (y) ^oepost, p. 124. (s) Sann v. Huglws, 7 T. R. 350 ; 7 Bro. P. C. 550 ; see nUans v. ran Mierop, 3 Burr. 1663 ; per cur. Easton V. Tratchctt. 1 C. M. & E. 808 ; and see Re WliUakcr, L. B. 42 C. D. 119 ; 58 L. J. C. 487. PBINCIPLES OF AGREEMENT. 7 given at the time of making the promise and in return for Ch. ] the promise then made : as where goods are delivered, or - services rendered, upon credit, that is, upon a promise to pay for them at a future time ; or v?here money is paid in advance for a promise given. — An executory consideration is a promise to do or give something in return for the promise then made : as upon an interchange of promises to marry ; or upon an interchange of promises, on the one part to serve and on the other part to employ, in some work or business. The con- Mutual tract With an executory consideration thus comprises two promises, commonly described as viutual promises ; the one promise forming the consideration for the other, and con- versely. Consequently, contracts of this kind must be bind- ing on both parties, otherwise the consideration for one of the promises fails, and the contract is then described as being void for want of mutuality ; as in agreements for services where there is a promise to serve on the one side, but no sufficient promise to employ on the other (a) . " The neces- sity of mutuality in contracts must be confined to those cases where the want of mutuality would leave one party without a valid or available consideration for his promise" (&). Upon this principle a formal contract signed by one party only may amount to a mere offer until accepted by the other (c). It aiDPears from the nature of a consideration above de- Pastco ^^ . -1 1 1 1 • siderati scribed that the consideration must necessarily be something done or given, or promised to be done or given, at the time of the making of the promise, in return for it; and that any matter already done, given, or promised, before the making of the promise, cannot constitute a valid considera- tion. A promise made in respect of such past matter, though (a) Lees v. Whitcomi, 5 Bing. 34 ; mders, L. E. 8 Ch. 562 ; Tindal, Sukes T. Dixon, 9 A. & E. 693 ; C. J., Laythoarp \. Bryant, 2 Bmg. SartUy y. Cummings, 5 C. B. 247. N. C. 743 ; post, p. 236. (h) Per cur. Arnold v. Mayor of [c] MeHUh, L. J., Dickinson v. Toole 4 M. & G. 896 ; see Fish- Dodds, L. R. 2 C. D. 473 ; 45 L. J. mongers' Co. v. Robertson, 5 M. & G. C. 777 ; Thomhury v. Bevill, 1 T. & 131; Kidderminster -v. SardwicJce, L. C. 0. 563. E. 9 Ex. 13 ; 43 L. J. Ex. 9 ; }ixp. O , CONTRACTS BY AGREEMENT. ^■^-^'^ I- induced by the moral obligation of gratitude, or any otber motive of compensation, is purely gratuitous and voluntary ; and, therefore, it will not create a contract, unless made in an independently valid form, as by an instrument under seal {d). For example, in a case where the plaintiff charged in plead- ing, under the old system, that in consideration that he had bought a horse of the defendant at a certain price, the defen- dant promised that the horse was sound ; it was held, in arrest of judgment, that the promise was void for want of consideration, because the consideration was alleged as past before the promise was made (e). But where it was alleged in the declaration of the plaintiff that " in consideration that the plaintiff had then promised the defendant " to perform certain things, " the defendant then promised the plaintiff " to perform, etc. ; it was construed that " then " referred to the same period of time with both promises, and that they were in effect simultaneous and mutual, and therefore valid (/) . So, " if a man disburse money about the affairs of another without request, and then the latter promise that, in con- sideration of the former having laid out the money for him, he will pay him £20, that is not a good consideration, being completely executed "(//). Upon this principle a promissory note given in remuneration of past services rendered gratui- tously by the payee to the maker, cannot be enforced by the payee, for want of consideration (/;). So it was held that a sum of money accepted as a gift would not support a pro- missory note subsequently given for the amount; though upon the question whether the money previously advanced was accepted as a gift or a loan, the note would be material evidence of the latter {i) . — Upon the same principle a guarantee of past debts cannot be supported without a further considera- tion; but giving credit in future, or forbearing to sue the (d) Lampleigh v. Brathwait, Hob. 166 ; Hall v. Betty, 4 M. & G. 410. 105 ; ISmith'sL. C.,flthed.,p. 153; (j/) Tindal, C. J., Thornton v. Eastwood V. Kenyan, 11 A. & E. 438. Jenyns, 1 M. & G. 188. (e) Boscorla v. Thomas, 3 Q. B. (h) Stilse v. Siihe, 17 C. B. 711- 234. See Sayes v. IFarren, 2 Str. 25 L. J. C. P. 177. a33. (J) Sill V. Wilson, L. B. 8 Ch.888 : (/) Thornton v, Jenyns, 1 M. & G. 42 L. J. 0. 817. PRINCIPLES OF AGREEMENT. W debtor for a certain time, or any other sufficient consideration Ch. ] will support a guarantee of debts past as well as future (k). . — '. — '- Hence a written guarantee is construed as presumptively applying to future transactions in order to supply a con- sideration {I) . An agreement satisfying the above-mentioned conditions, simple that is to say, containing a promise made by the one party, tyaSe. for a vaKd consideration, and agreed to by the other party, ii^ent. creates at common law a contract by force of the mere agree- ment ; and the contract so created is a simple contract. — No Form oi special form is required by law for simple contracts ; except contrad for contracts concerning certain matters which are required by statute to be made or proved with writing and signature or other prescribed formalities. The words and acts of the parties, which are the evidence of their agreement, constitute in general the only/orw in which the contract appears. But the contract is an inference of law from the facts ; therefore in pleadings under the Judicature Acts it is not sufficient to allege merely the existence of a contract, but it is in general necessary to state the writing or other material facts from which the contract is inferred (ni). Contracts created by agreement are sometimes distinguished Express as express and' implied, according to the manner in which the contract agreement is made. An express contract is proved by words, written or spoken, expressing an agreement of the parties ; an implied contract is proved by circumstantial evidence of the agreement. Contracts 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 cir- cumstances. " The only difference between an express and an implied contract is in the mode of proof. An express (k) Wood V. Henson, 2 0. & J. 94 ; Cowan, L. R. 7 C. D. 151 ; 47 L. J. Johnston v. Nicholls, I G. B. 251 ; C. 73. Bot/d V. Moyle, 2 C. B. 644 ; White (?) Hoad v. Grace, 7 H. & N. 494 ; T. Woodward, 5 C. B. 810 ; Westheadr. 31 L. J. Ex. 98. Sproson, 6 H. & N. 728 ; 30 L. J. Ex. (m) Order XIX. r. 4 ; Tiirquand v. 265. See CoZ«s V. Pmi, L. E. 5 0. P. Fearon, 48 L. J. Q. B. 703. See 65; 39 L. J. 0. P. 63; Morrell v. post, p. 38. 10 CONTKACTS BY AGREEMENT, P-^^t I- contract is proved by direct evidence, an implied contract by circumstantial evidence. Whether the contract be proved by evidence direct or circumstantial, the legal consequences resulting must be the same" (n). An express contract neces- sarily supersedes and excludes all implication as to the matters expressed, according to the maxim, " expressum facit Contracts cessare taciturn" (o). — It is necessary here to notice that the unphea in .... p • i law. term "implied in law" is used to denote the class of simple contracts raised by law from facts and circumstances inde- pendent 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. Contracts implied in law are then con- trasted with contracts arising from agreement. In contrast- ing express and implied agreements, as above, the term "implied" is used to describe an actual agreement which appears from circumstantial evidence and not in express terms {p). Coutraots Agreements creating contracts may be expressed in writing, and in some instances are required by law to be expressed in writing. The contracts so created do not on that account constitiite a distinct kind of contract, but are subject to the same general rules of law as other simple contracts. The fact of their being written, however, renders them subject also to the rules of evidence and to the rules of construction relating to written documents. These rules in their bearing upon written contracts as a class, including therein other contracts besides simple contracts, are treated in a separate chapter (g). (m) Fa,Tke,'B., MarzetHv. Williams, (p) See ante, p. 2; and post, 1 B. & Ad. 425. p. 54. (o) See Abbott v. Jlates, 45 L. J. C. (q) See post, p. 145. P. 117. in writing. AGREEMENT APPLIED TO CONTRACTS. 11 § 2. Application of Agreement to Contracts. PAGE Contracts made by offer and acceptance of terms — pre- liminary negotiations 11 Acceptance of offer — conditional acceptance , 16 Acceptance in variation of offer 17 Acceptance by a third party — misrepresentation of per- sonality 20 Communication of acceptance — communication by post — ■ by telegrapi 21 Continuance of ofBer — offer limited to a reasonable time — to return of post — to a fixed time 25 Revocation of offer — notice of revocation — revocation of continuing offer — variation of offer — revocation of accept- ance , 27 Termination of offer by refusal — by death — by bankruptcy 3 1 Time and place of contract— jurisdiction of courts , , , 32 Althougli simple contracts arising from agreement require Appiica- in general no other formality than the facts in which the agreement agreement appears ; yet the application of agreement to the l°^°^g' various contracts in which it may be employed, follows certain general principles of a practical kind, which are useful for determining the question whether on any particular occasion a contract is created. An agreement must necessarily be made in the form, or offer and what is equivalent to the form, of an ofFer of terms on the of toms.*^^ one side, and an assent to or acceptance of those terms on the other, communicated between the parties: — as at a Saieby sale by auction each bidding is an offer of a price for the ^""^ '°°" article put up for sale ; and these biddings may be succes- sively made until one is accepted by the fall of the hammer, when the agreement is complete («). And consequently the property in a chattel sold by auction passes at the fall of the hammer, unless the conditions of sale stipulate to the contrary (b). — The sending an order for goods to a merchant Orders for or tradesman is an offer to purchase ; and the sending of the ^°° goods ordered is an acceptance of the offer, and creates (a) Fame v. Cave, 3 T. E. 148. (J) Sweeting v. Turnei; L. E. 7 Q. B. 310; 41 L. J. Q. B. 58. 12 CONTRACTS BY AGREEMENT. Paet I. Guarau- Letters of credit. Advertise- ments. a contract of sale (c). The sending of goods materially differing from the order is no acceptance {d). So a person who tenders to supply goods to another at a certain price may be bound by an order for goods given in accordance with the tender (c). — A guarantee for payment of goods sold, or for advances made to a third party, or for the services of an agent or servant, is in general a mere offer until accepted by acting upon it according to the terms ; the party guaran- teed is not bound to act upon it, but upon supplying the goods, or making the advances, or employing the agent as proposed, he accepts the offer and the guarantee attaches (/). — An open letter of credit in the common form, undertaking to honour bills of exchange to be drawn by the person to whom it is given, operates as a general offer of a contract, addressed or intended to be shown to all persons who may be willing to act upon it; which may be accepted by any such person making advances upon bills drawn in conformity with its terms and requirements {g) ; but subject to all conditions expressed in the letter as precedent to the drawing of the bills (A). — The publication of an advertisement offering a reward for information is a general 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 (/) . An advertisement of goods for sale by tender does not in general import a promise to sell to the person who makes the highest offer (A-) . And an advertisement of a sale by auc- tion does not create a contract with a person attending that all the lots advertised shall be offered for sale (/). But an advertisement of a sale, knowingly made without any power (c) Cresswell, J., Harvey \. John- ston, 6 G. B. 304. (d) levy V. Green, 8 E. & B. 675 ; 28 L. J. Q. B. 319 ; post, pp. 18, 48. (e) Great Northern Sy. Co. v. Wit- ham, L. R. 9 C. P. 16 ; 43 L. J. C. P. 1 ; post, p. 30. (/) Parke, B., Eennawny v. Tre- leavan, 5 M. & "W". SOI ; IVcsthead v. Sproson, 6 H. & N. 728 ; 30 L. J. Ex. 265 ; see post, p. 21. {q) lie Agra and Masterman^s Ban];., L. K. 2 Ch. 391 ; 36 L. J. C. 222 ; Maitland v. Chartered Bank of India 38 L. J. C. 363. (A) Union Bank of Canada v. CoU. 47 L. J. C. P. 100. (i) WiUia^ns t. Carwardine, 4 B. & Ad. 621 ; see Thatcher v. England, 3 C. B. 254 ; Taner v. TTalker, L. R. 2 Q. B. 301 ; 36 L. J. Q. B. 112; Bent V. V'akefitldBank, L. E. 4 C. P. D. 1. ik) Spencer r. Harditig, L. R. 5 C. P. 661 ; 39 L. J. C. P. 332. (J) Harris v. Nickerson, L. R. 8 Q B. 286; 42 L. J. Q. B. 171. AGREEMENT APPLIED TO CONTEACTS. 13 or intention of carrying it out, may be ground for an action Ch. i. at the suit of a person who acts upon it and incurs expense in inspecting and valuing the property (m). Upon the principle of an advertisement the time tables ^?j^^^y published by a railway company are the offer oi a contract to tickets. all persons who apply as passengers, that the trains wiU run as therein advertised, subject to the terms and conditions therein- stated (h). The tickets delivered contain the condi- tions of the contract of carriage. " Such a form constitutes the ofiEer of the party who tenders it. If the form is accepted without objection by the person to whom it is tendered, this person is as a general rule bound by its contents ; and his act amounts to an acceptance of the offer made to him, whether he reads the document or not" (o) : as the tickets de- livered to passengers on payment of the fare for the carriage of themselves and their luggage {p) ; the tickets or printed notes delivered upon the receipt of goods for carriage (q) ; or upon the receipt of goods deposited for safe custody at rail- way parcel offices (r) ; or upon the receipt of goods deposited at a repository for sale on commission (s) . But the general rule that a person accepting such ticket is presumed to be bound by the contents is subject to the condition, that the person offering the ticket has done all that is reasonably suf- ficient to give notice of the contents (^). A passenger- ticket printed on the face with names of the places, without any (ot) Sichardson y. Sihester, Jj. E. 9 [q) YorJc, N. ^ B. Sy. v. Crisp, 14 Q. B. 34 ; 43 L. J. Q. B. 1. C. B. 527 ; 23 L. J. C. P. 125. See (n) Benton v. Great Xorthern Ey. the Railway and Canal Traffic Act, Co., 5 E. & B. 860; 25 L. J. Q. B. 18.54, post, p. 604; Peek v. Xorth 134; see Hurst Y. Great Western Ey., Staffordshire Ey., 10 H. L. C. 472- 19 C. B. N. S. 310; 34 L. J. C. P. 32 L. J. Q. B. 241 ; Leiiis v. Great 264; Zoi-dY. Midland Ey., L. R. 2 C. Western Ey., L. R. 3 Q. B. D 195 • P. 339 ; 36 L. J. C. P. 170 ; Lebkinch 47 L. J. Q. B. 131. V. London and N. W. Ey., L. R. 1 C. (r) Tan Toll v. S. Eastern Ey., 12 P. D. 286 ; 45 L. J. C. P. 521 ; C. B. N. S. 75 ; 31 L. J. C. P. 241 ; McCartanY. N. Eastern Ey.jbiJj. 3. Sarris y. G. Western Ey., L. R. 1 Q. B. 441. Q. B. D. 616 ; 45 L. J. Q. B. 728 ; (o) Per cur. Watkyns y. Eymill, Parker v. S. Eastern III/ , L R 2 L. R. 10 Q. B. D. 188; 52 L. J. C. P. D. 416; 46 L. J. C. P. 768. Q. B. 121. (s) Watkyns v. Eymill. L. R. 10 {p) Zmz V. S. Eastern Ey., L. R. Q. B. D. 178 ; 52 L. J. Q. B. 121 4 Q. B. 639; 38 L. J. Q. B. 209; (<) Parker Y.h. Eastern Ey., supra; Surke V. S. Eastern Ey., L. R. 5 and see the cases abore cited. C. P. D. 1 ; 49 L. J. C. P. 107. 14 CONTRACTS BY AGREEMENT. Paet I. Compul- Boiy pur- chases of land. Contract by letters. reference to conditions printed on the back, was held insuffi- cient for this purpose (m). But a receipt note for goods de- posited, "subject to the conditions on the other side" was held sufficient (x) ; also a receipt of goods at a repository for sale "subject to the conditions exhibited on the premises" (y). The Lands Clauses Act, 1845, 8 & 9 Vict. c. 18, gives to railway companies and other public bodies compulsory powers of purchasing land for their undertakings, subject to the provisions of the Act. The statutory notice to treat for the purchase of land served upon the owner creates the relation of vendor and purchaser between the parties, from which neither can withdraw without the consent of the other ; but it does not constitute an agreement with the owner, nor does it have the consequences upon his property of a contract by agreement, because it operates without his consent and even against his will (s). And the notice to treat does not create a debt for the purchase-money capable of attachment under Order XLV. (a). But the parties may contract by agree- ment for the sale of the land, with the ordinary consequences of a contract of sale, independently of the compulsory powers {b). A correspondence between two parties by letter may eon- tain an agreement which will produce a contract as binding as if drawn up in articles and signed by the parties ; but there must be found in the correspondence, taking the whole into consideration, a proposal of terms, met by such final acceptance as imports a consent of both parties. The Court in such cases regards not the form of the agreement but the substance ; and the same construction must be put upon a letter, or a series of letters, as would be applied in the case of (m) Henderson y. Stevenson, L. E. 2 Sc. Ap. 470. [x) Harris t. G. Western My., supra. (y) Watfcyns v. Symill, supra, (z) Saynes v. Uaynes, 1 D. & Sra. 426; 30 L. J. C. 578; North, J., Shepherd v. Norwich, L. E. 30 C. D. 553; 54 L. J. 0. 1050; citing Tiverton and Devon By. v. Zoosemore, L. R. 9 Ap. Ca. 493 ; 53 L. J. C. 812. See Maiolinys v. Mttrop. Sy., 37 L. J. C. 824 ; TFaiis t. TT'ults, L. E. 17 Eq. 217 ; 43 L. J. C. 77 ; Jte Piyott and G. W. By., L. E. 18 C. D. 150; 50 L. J. G. 679. (ffl) Richardson v. Mmlt, L. E. 2 C. P. D. 9. (b) Byyrare v. Metrop. Board, L. E. 32 0. D. 147; 55 L. J. 0. 602. AGREEMENT APPLIED TO CONTRACTS. 15 a formal instrument ; the only difference is that a letter or a Ch. i. correspondence, being generally more loose and inaccurate '—^ in expression, creates a greater difficulty in arriving at the intended terms (c). Where a complete contract has been entered into in former letters, a subsequent correspondence between the parties cannot be used to contradict or vary the intention of the former contract (d). Terms offered and representations made during the nego- Prelimi- tiation of a contract, which are not contained in the final SatLns?"' agreement, are excluded from the contract (e) : — as where a person, being about to sell a horse by auction, represented to an intending buyer that the horse was sound ; who, on the next day, relying on the representation, bought the horse at the auction without a warranty ; it was held that the previous representation formed no part of the contract (/) . A person who had attended a sale by auction at which a house was put up for sale on certain conditions, but not sold, afterwards offered a price, which was accepted unconditionally ; it was held that the conditions of the auction, not having been referred to, formed no part of the contract (g). 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 (h). Upon treaty for the sale of a ship it was represented as copper fastened, but in the written (c) Eldon, L. C, Kennedy v. Lee, 3 see- Bristol Bread Co. v. Maggs, L. R. Mer. 441, 451; Euddkston v. Briscoe, 44 0. D. 616 ; 59 L. J. 0. 472 ; Bel- li Ves. 583 ; Cairns, L. C, Brogden lamy v. Bebenham, (1891) 1 Ch. 412; V. Metrop. Ry., L. R. 2 Ap. Ca. 672 ; 60 L. J. C. 166. Cayley v. Walpole, 39 L. J. C. 609 ; (e) Gibbs, C. J., Fiokering v. Bow- English and Foreign Credit Co, v. son, 4 Taunt. 786 ; Lord Blackburn, Arduin, L. E. 5 H. L. 64; 40 L. J. Fnglis v. Buttery, L. E. 3 Ap. Ca. Ex. 108 ; Sussey v. Home Fayne, L. 677. R. 4 Ap. Ca. 311 ; 48 L. J. C. 846 ; (/) Sopkins v. Tanqueray, 15 C. B. " r. Thomson, L. R. 20 CD. 705; 130 ; 23 L. J. C. P. 162 ; see Aris v. 61L.J. C. 917. As to pleading such. Orcto-ii, 6 H. &N. 160; 30L. J.Ex. contracts, see Order XIX. r. 24 ; 21. Turquand v. Fearon, 48 L. J. Q. B. (g) Cowley v. Watts, 22 L. J. C. 703 ; ante, p. 9 ; post, p. 146. 591 ; 17 Jur. 172. (d) Erie, J., Lewis r. Nicholson, 18 [h) Tye v. Fynmore, 3 Camp. 462 ; Q. B. 503 ; 21 L. J. Q. B. 313 ; but Meyer v. Fverth, 4 Camp. 22. 16 CONTEACTS BY AGREEMENT. I'ABT I. contract of sale it was not so described ; it was held that no warranty to that effect could be imported into the contract from the previous representation («). — "It is impossible to rescind or alter a contract with reference to the terms of the negotiation which preceded it"(^). But representations made with the intention of inducing the other party to enter into the contract may become material, as giving ground for avoiding the contract or for an action of fraud (l). Accept- ance of offer. Condi- tional ac- ceptance. An acceptance of the terms by the person to whom they are offered, communicated to the person making the offer, is necessary to complete the contract. An offer cannot be made in the terms that an acceptance will be assumed without com- munication. Where a letter was sent offering to buy a horse, and stating that if the writer received no answer he would assume that his offer was accepted, to which no answer was returned ; it was held that there was no contract and that the horse might be sold notwithstanding the offer ; for that a person in making an offer to another has no right " to put upon him the burden of the choice of writing a letter of refusal or being bound by the agreement proposed " {m). Where a letter was issued by a company to the shareholders stating that new shares were allotted and the certificates enclosed, with a receipt to be signed and returned, it was held that a shareholder who had taken no notice of the communi- cation was not bound to accept the shares, and could not be charged as a shareholder {n). The acceptance must be absolute and unqualified ; an acceptance which leaves any term open to future negotiation is insufficient (o) : as an acceptance of an offer to buy or to sell an estate, " subject to the terms of a contract being arranged" by a solicitor or agent {p) ; or the acceptance of a (i) Piclering v. Douson, 4 Taunt. 779 ; Kain v. Old, 2 B. & C. 627 ; Freeman v. Baker, 5 B. c& Ad. 797. {k) James, V.-C, Mackenzie v. Couhon, L. R. 8 Eq. 368. (l) Seepoii, p. 291. (m) FelthouseY. Bindley, 11 C. B. N. S. 869; 31 L. J. C. P. 204. («) Somerville's case, L. E. 6 Ch 266; 40 L. J. C. 431. (o) Appleby v. Johnson, L. R. 9 C. P. 168 ; 43 L. J. C. P. 146. [p) Soneinnan v. Marryat, 6 H. L C. 112 ; 26 L. J. C. 619 ; Stanley t. AGREEMENT APPLIED TO CONTKACTS. 17 lease " sutject to the preparation and approval of a formal Ch. i. contract " (q) ; or the acceptance of an underlease, upon the '—^ condition of there being nothing unusual in the original lease (r). An acceptance by a purchaser "subject to the title being approved" by his solicitor was held insufiBcient, as introdiicing a nevs^ term beyond what the law implies as to the investigation of title («). " The principle which governs these cases is plain. If there is a simple acceptance of an offer, accompanied by a statement that the acceptor desires that the agreement should be put into more formal terms in accordance with the offer and acceptance, the mere reference to the intention of putting the agreement into more formal terms will not prevent the court from enforcing the final agreement which has been arrived at. But if the agreement is conditional on the acceptance of some further terms spe- cified, or to be specified by the party himself or his solicitor, then there is no final agreement" {i). The acceptance must agree with the terms of the offer ; Accept- if it proposes a material variation of the terms there is no ing offer, agreement, or consensus ad idem, upon which a contract can be founded : — As an offer to purchase a house, with posses- sion on the 25th July, and an acceptance of the offer with possession on the 1st August {i(). An offer to buy a horse with a warranty of being quiet in harness, and an acceptance with warranty of being quiet in double harness {x). An offer to sell "good" barley, and an acceptance of the offer for " fine " barley, where it appeared that by the usage of the trade the expressions "good" and "fine" meant different qualities of barley [y) . An order given for certaia Dowdeswell, L. R. 10 0. P. 102. See And see Eadie v. AddUon, 52 L. J. Crossleyv. Maycoch, L. E,. 18 Eq. 180 ; C. 80. 43 L. J. C. P. 379. {t) Jessel, M. R., Crossley v. 3Iay- (q) Winn v. Bull, L. R. 7 C. D. cock, L. B. 18 Eq. 180 ; 43 L. J. 0. 29 ; 47 L, J. C. 139. See Wilcox t. 380. See post, p. 147. Redhead, 49 L. J. 0. 539. [u) Eoutledgex. Grant, 4 Bing. 660. (r) Lucas v. James, 7 Hare, 410. (x) Jordan v. Norton, 4 M. & W. (s) Mtissey v. Some Fayne, L. K. 8 156. C. D. 670 ; 47 L. J. 0. 751 ; but see («/) Hutchison v. Soivker, 5 M. & Cairns, L. C, S. C. on appeal, L. E,. W. 535. 4 Ap. Ca. 311 ; 48 L. J. C. 846. 18 CONTRACTS BY AGREEMENT. Paet I. Variance in bought and sold notes. Variance in applica- tion for and allot- ment of shares. goods, and an acceptance by sending the goods ordered together with other goods not ordered, in one parcel and with one invoice (s). An offer to purchase the lease of a house and an acceptance of the terms for an underlease («). But an offer for the insurance of a ship at and from a port was held to he completely accepted by a letter in the terms " In accordance with your written request you are hereby insured /raw the said port " ib). In the sale of goods through a broker it is the general practice for the broker to sign, and deliver to the buyer and seller, contract notes, stating the terms of the contract, which therefore must be identical except in the correlative words " bought " and " sold," and if these notes vary in any material term, there is no contract of sale and no property passes in the goods (c) : as where the two sale notes varied in the description of the goods (d) ; and where they varied as to the payment, the one stating payment on delivery and the other payment by bill(e). But the variance in such cases may sometimes be reconciled by evidence of the mercantile meaning of the terms (/) . The contract to take shares in a company is made in the ordinary course by an offer contained in a letter of applica- tion for the shares and an acceptance in a letter of allotment. The contract thus formed is afterwards executed by placing the name of the applicant upon the register ; who then, and not by force of the mere contract, becomes a shareholder of the company, with the attendant rights and liabilities ((/). If the allotment varies the terms of application, there is no contract to take the shares : as where it added a condition of forfeiture in default of payment on a certain day(7*), or in [z) Levy v. Green, 8 E. & B. 575 ; 28 L. J. Q. B. 319 ; ante, p. 12. (a) Solland v. Eyre, 2 S. & S. 194. lb) Colonial Ins. v. Adelaide Ins., L. E. 12 Ap. Ca. 128 ; 56 L. J. P. 0. 19. (c) Grant v. Fleteher, 5 B. & C. 436 ; Sievewright v. Archibald, 17 Q. B. 103. See Moore v. Campbell, 10 Ex. 323; 23 L. J. Ex. 310. (d) Thornton v. Kempstcr, 5 Taunt. 786. (e) Gregson y. Buck, i Q. B. 737. (/) Sold V. Eayner, 1 M. & W. 343 ; see Kempson v. Boyle, 3 H. & C, 763; 34 L. J. Ex. 191. See mst, p. 171. ■ {g) JVicol's case, L. R. 29 C. D. 421 Duff's case, L. E. 32 C. D. 301. (A) Vollans v. Fletcher, 1 Ex. 20 AddineU's case, L. E. 1 Eq. 225 ; 35 L. J. 0. 75 ; Jackson v. Turquand, L. E. 4 H. L. 305 ; 39 L. J. C. 11. AGREEMENT APPLIED TO CONTRACTS. 19 default of signing the articles of association («) ; or a condition Ch. i. that the shares were "not transferable "(/f); or where the '—^ application was for paid-up shares, and the allotment was of shares upon which part payment only was credited (/). A notice in the allotment that interest would be charged upon payments due on the shares after a certain date was held not to be a new term affecting the express acceptance (»j). — If the application is made upon a condition, and the shares are allotted unconditionally, there is no contract : as an applica- tion upon condition of paying calls in goods («) ; or that the applicant should have a building contract (o) ; or that the applicant should be appointed an officer of the company (j?). But the application and allotment of shares may be absolute, a,lthough coupled with a collateral agreement as to payment or otherwise (q) . And in all such cases the allottee, though not bound to take the shares, may become so by. retaining them and acquiescing in the terms of the allotment (r) . — So Tariance 1 T . . . 1 p 1 ' -t between where an application is made lor shares m a proposed com- prospectus pany according to a published prospectus, and shares are articles, allotted by the company as afterwards constituted under a memorandum and articles of association which materially vary from the prospectus, whether in the objects of the com- pany, or in the names of the directors, or in other material points, the allottee, not having notice of the variation, is not bound to accept the shares. But the allottee of shares in a company is prima facie bound by the registered memorandum and articles of association, and if after having notice he delays taking proceedings to remove his name from the (i) Oriental Inland Steam Co. v. (o) Simpson's case, Jj.'R. i Ch.lSi; Briggs, 2 J. & H. 625 ; 4 D. F. & J. 39 L. J. 0. 121. 191 ; 31 L. J. C. 241. [p] Roger's case ; Harrison's case, [k) Wontner v. Shairp, 4 C. B. 404 ; L. E. 3 Ch. 633 ; Wood's case, L. E. Duke v. Andrews, 2 Ex. 290; Chaplin 15 Eq. 236 ; 42 L. J. 0. 403; Me Mog- Y. Clarke, 4 Ex. 403. ridge, 57 L. J. 0. 932. {I) Wynne's case, L. E. 8 Ch. 1002; (q) Bridger's case, L. E. 5 Ch. 305; 43 L. J. C. 138 ; Beck's case, L. E. 9 39 L. J. C. 478 ; Thomson's case, 34 Ch. 392; 43L. J. C. 531. L. J. C. 525. {m) Harris' case, L. E. 7 Ch. 587; (r) Perrett's case, L. E. 15 Eq. 41 L. J. C. 621. 250 ; 42 L. J. 0. 305 ; see Re Rail- in) Shackleford' s case, L. E. 1 Ch. way Time Tables Co., L. E. 42 C. D. 567 ■ 35 L. J. 0. 818 ; Pellatt's case, 98 ; 68 L. J. C. 604. L. E. 2 Ch. 527 ; 36 L. J. C. 613. c2 20 CONTRACTS J!Y AGREEMENT. Paet I. register, he may be liable as a shareholder to the creditors of the company (s) . Accept- An offer can be accepted only by the person to whom it is third made and with whom it imports an intention to contract ; it ^^^ ^' cannot be assigned to another or accepted by another person, without the consent of the person making it. " In the simple case of an offer by A. to sell to B., an acceptance of the oifer by C. can establish no contract with A." (t). Where an offer of employment is made to a person by reason of his personal qualifications or circumstances, who delegates the employ- ment to another, the latter can acquire no claim against the employer by the performance of the services without his knowledge and consent (u). "In like manner, where goods are ordered of a particular manufacturer, another, who has succeeded to his business, cannot execute the order so as to bind the customer, who has not been made aware of the transfer of the business, to accept the goods. The latter is entitled to refuse to deal with any other than the manufac- turer whose goods he intended to buy " {v). In a case where the defendant sent an order for goods to a person, against whom he had a claim which could be set off against the price of the goods, and that person had assigned his business to the plaintiff, who executed the order by sending the goods, which the defendant received and consumed before having notice of the change in the business ; it was held that there was no contract with the plaintiff, who, therefore, could not sue the defendant in his own name for the price {jt). But where an (s) Ship's case; Downcs v. Ship, L. R. 3 Eq. 534. L. B. 3 H. L. 343 ; 37 L. J. C. 642 ; (t) Stuart, V.-C, Meynell v. Siir- see Ex p. Eutehinsun, 8 B. M. & G. tees, 3 Sm. & G. 117. 488 ; 26 L. J. C. 722 ; Stewart's ease, [u) Schmaling t. Thomllnson, 6 L. E. 1 Ch. 574 ; 35 L. J. 0. 73S ; Taunt. 147 ; Rolson r. Dnimmoiid, 2 Wilkinson's case, L. K. 2 Ch. 536 ; B. & Ad. 303 ; Bramwell, B., BouUon 36 L. J. C. 489 ; Feel's case, L. R. 2 v. Jones, 2 H. & N. 564 ; 27 L J Ex Ch. Ap. 674 ; 36 L. J. C. 757 ; Oakes 117. T. Turquand, L. E. 2 H. L. 325 ; 36 (v) Per cur. British Wagon Co. v. L. J. C. 949; Langham v. East JJ'heal Lea, L. E. 5 Q. B. D. 152 ; 49 L. J. Mining Co., 37 L. J. C. 253 ; Ander- Q. B. 321 ; see Cooke \. 'Memmiiia, son's case, L. E. 17 C. D. 373 ; 50 L. R. 3 C. P. 334 ; 37 L. J. C. P. 179. L. J. C. 269 ; lie Scottish Fetrolemn (x) Bonlton v. Jones, 2 H. & N Co., L. R. 23 C. D. 413; 51 L.J. C. 664; 27 L. J. Ex. 117. 841 ; Wood, V.-C, Sallows v. Fernic, AGREEMENT APPLIED TO CONTRACTS. 21 offer is made to any person who is in a position to receive Ch. i. , Sect. I. and accept it, as an advertisement or an open letter of credit, it may be accepted by any person who satisfies the conditions of the offer {y). — Upon the above principle if a person misre- Misrepre- ji- tjpji p*i' l sentation presents his personality for the purpose of induomg an accept- of per- ance of an offer purporting to come from the person repre- ^o^^^^^^y- sented, there is no contract ; as where a person ordered goods in the name of a firm, of which he falsely represented that he was a partner, and the goods were delivered to him in the name of the firm, it was held that he could not assert a contract of sale to himself for the purpose of claiming the property in the goods (s) . And if a person applies for shares in the name of another, which are allotted and registered in the name of the latter, the former is not chargeable as a shareholder, unless he intended to take the shares himself in that name {a). So where a person was iaduced to execute orders for goods by the person who gave the order taking advantage of a similarity of name and address to misrepre- sent himself as being another person, well known to the seller; it was held that there was in fact no contract of sale, and therefore no property passed, and though they were re-sold to a bona fide buyer without notice of the fraud, the seller might recover the goods {b). An acceptance which is not communicated to the person Commnni- makiug the offer will not bind him to a contract (c) : as where Scept °* the offer of a guarantee for the payment of goods to be ^^''^' suppHed to a third party is met by merely supplying the goods, without giving notice to the guarantor that his offer is accepted (c?). — Upon this principle an application for shares (y) Ante, p. 12; see Weidner v. (a) Coventry's case, (1891) 1 Ch. Soggett, L. R. 1 C. P. B. 533 ; Smith 202 ; 60 L. J. C. 186 ; FugKs case, v. Wheatcroft, L. R. 9 C. D. 223 ; 47 L. E. 13 Eq. 566 ; 41 L. J. C. 580. L. J. C. 745 ; Fellowes v. Gwydyr, 1 (J) Lindsay v. Cundy, L. E. 3 Ap. Euss. & M. 83. Ca. 459 ; 46 L. J. Q. B. 487 ; Re (z) Sardman v. Booth, 1 H. & C. Seed, L. E. 3 C. D. 123 ; 45 L. J. B. 803 ; 32 L. J. Ex. 105 ; see Biggons 120 ; see post, p. 328. V. Burton, 26 L. J. Ex. 342 ; Sollins ■ (c) Ld. Blaokbum, Brogden v. •V. Fowler, L. E. 7 H. L. 757 ; 44 L. Metrop. Sy., L. E. 2 Ap. Ca. 692. J. Q. B. 169. • [^M'lver v. Michardson, 1 M. & 22 CONTKACTS BY AGREEMENT. Pabt I. in a company must be accepted by giving notice of the allot- Notice of ment ; without which there is no contract to take the shares (e). of shar^. Registration of the applicant as shareholder alone is not suf- ficient ; for it is not his duty to search the register (/) . Where the application for shares was sent in the prescribed form to a local agent of the company, and the letter of allotment was sent to that agent; it was held not to bind the applicant, because he had not authorised the agent to receive the letter on his behalf {g) . But an unstamped letter of allotment is sufficient notice, and may afterwards be replaced by a letter of allotment properly stamped (A). And it is sufficient if the applicant is informed of the allotment, without a formal notice, as by his presence at the board when the allotment is made («). The allottee by subsequent acquiescence in the allotment may preclude himself from objecting to the want of notice (k) : as by subsequently executing a transfer of the shares to another person (l) ; or by accepting the office of director, where the shares have been allotted as qualification for that office (m). The applicant may dispense with notice by expressly agreeing to accept shares allotted, unless he receives notice of refusal to allot (n) ; or there may be a pre- vious agreement by which the company are bound to allot such shares as are applied for, and the application then makes a complete contract to take the shares without further notice (o). But " where an offer is made to another party, and in that offer there is a request, express or implied, that he must S. 557 ; Model/ t. Tinkler, 1 0. M. & {1} Crawki/'s case, L. E. 4 Cli. 322 ; E. 692 ; see Cope f. Aliinson, 8 Ex. see Ward's case, L. R. 10 Eq. 659. 185 ; 22 L. J. Ex. 37. (m) Leeke's case, L. E,. 6 Ch. 469 ; (e) See ante, p. 18. 40 L. J. C. 254; Sancarcl'scase, L r' (/) Fellait's case, L. E. 2 Ch. 527 ; 13 Eq. 30 ; 41 L. J. C. 283 ; and see 36 L. J. C. 613 ; Gn/iii's case, L. E. Srett's case, L. E. 25 C. D. 283 ■ 53 3 Ch. 40 ; 37 L. J. C. 40 ; SaMgreen's L. J. C. 343 ; Ee Wheal Bulkr Consols case, L. E. 3 Ch. 323. L. E. 38 C. D. 42 ; JRePortio,„v^e Co ' {g) Bebb's case, L. E. 4 Eq. 9 ; 36 (1891) 3 Ch. 28 ; 60 L. J. C. 556. '' L. J. 0. 748 ; Sobinson's case, L. E. (n) £loxain's case, 33 Beav 529 • 33 4 Ch. 322. L. J. C. 574 ; Cairns, L. J., FellaU's Ih) Steeps case, 49 L. J. C. 176. case, L. E. 2 Ch. 530. Fletcher's case, 37 L. J. C. 49; (o) Tucker's case, 41 L. J. C. 17; see Michards v. Some Ass., L. E. 6 Adam's case, 41 L. J. C. 270 • L e' C. P. 591 ; 40 L. J. 0. P. 290. 13 Eq. 474 ; Davies' case, 41 li. J c' (4) levita's case, L. E. 3 Ch. 36. 659. AGREEMENT APPLIED TO CONTRACTS. 23 signify his acceptance by doing some particular thing, then Ch. i. as soon as he does that thing he is bound;" as well as the party who makes the offer. If an order for goods be given Delivery of to a merchant or tradesman, requiring or authorising accept- order. ance of the order by delivering the goods in a particular manner, as to a certain carrier, or at a certain place, the delivery of the goods according to the order completes the contract without further communication ; the goods from the time of such delivery become the property of the buyer ■and are at his risk ; and he is bound to pay for them, although they never reach their ulterior destination (jj) . The acceptance of an offer of sale of land communicated to the agent for sale who made the offer is sufficient, though the agent neglects to give notice of it to the vendor (q). In oommimication by letter through the post-ofEce, the Commimi- general rule is that, as between the sender of a letter and post™ ^ the person to whom it is addressed, the post-office is the agent of the sender ; and the delivery of a letter to the post- office for transmission is no delivery to the person to whom it is addressed, until actually received by him. Therefore an acceptance of an offer by a letter sent by post is prima facie at the risk of the sender, and is not an effectual communica- tion, unless the letter is duly received (r). But if a person Authority in making an offer to another, at the same time authorises by poslb^ him, either expressly or impliedly, to send his answer by post, and if a letter accepting such offer is correctly addressed and posted, then all the conditions of acceptance are satisfied, and the contract is complete ; and it is held to be immaterial as regards the contract, that afterwards the letter is delayed or lost in transmission. "If the person addressed had ao-reed that posting a letter should suffice, like a delivery of goods to a carrier, he would be bound ; " for he would then have made the post-office his agent to receive the acceptance and {p) Ld. Blackburn, Brogdeii v. Le Itoos, 2 E. & E 271 • 29 L J Metrop. Ry., L. B. 2 Ap. Ca. 691 ; Q. B. 4 ; Bramwell, B., British 'id. see ante, p. 11. Go. t. Colson, L. B. 6 Ex 118 • 40 {q) Wright V. Bigg, 15 Beav. 592. L. J. Ex. 101 ; see Lane V. Cotton, (r) Gookburn, C. J., Newcombe v. L. Kaym. 646. 24 CONTRACTS BY AGREEMENT. Paet I. Sale of goods by post. Allotment of shares by post. the notification of it (•«). "The principle is limited in its application to cases in which by reason of general usage, or of the relations between the parties to any particular trans- actions, or of the terms in which the offer is made, the accept- ance of such offer by a letter through the post is expressly or impliedly authorised " (if) . And "when nothing more appears than that the post may be resorted to, the mere posting would not bind the person written to ; because in all cases, unless the contrary appears by express stipulation, the post may be resorted to " (m). — According to the above prin- ciples it is held upon the usual course of business between merchants at a distance that an offer by letter to buy or sell goods is completely accepted by posting a letter of accept- ance. Thus, a merchant at Glasgow sent a letter by poit to a merchant at Liverpool offering to sell a certain quantity of iron at a certain price ; this offer was delivered in due course of post to the merchant at Liverpool, who on the day of delivery, and during business hours, according to the usual practice of merchants, duly posted an answer accepting the iron ; the letter of acceptance was delayed by casualties in transmission through the post, and the merchant at Glasgow, not receiving the letter at the hour expected, assumed that his offer had not been accepted and sold the iron to another buyer ; the merchant of Liverpool brought an action upon the contract for non-delivery of the iron, and it was held that he was entitled to recover («). — So it is held that an ordinary letter of application for shares in a company is to be taken as authorising the company to send notice of allot- ment by post to the address given by the applicant at his own risk ; and that the contract to take the shares is com- pleted by the posting of a notice of allotment so addressed, though it never reaches the applicant («). D. (s) Bramwell, B., British Tel. Co. Y. Colsonf supra; Mellisli, L. J., Sarris' case, L. B. 7 Ch. 594 ; 41 L. J. C. 625 ; L. Blackburn, Srogden V. Metrop. Stj., L. B. 2 Ap. Ca. 691 ; Lindley, J., Byrne v. Van Tienhoven, L. R. 5 C. P. D. 348; 49 L. J. C. P. 316. (t) Baggallay, L. J., Household Fire Ins. v. Grant, L. E.. 4 Ex. 2'1% ; see BramweU, B., /*. 236. ((() BramweU, B., British Tel. Co. V. Colson, supra. {v) Sunlop V. Siggins, 1 H. L. C. 381 ; see Duncan v. Topham, S C. B 225. [x] MeidpathU case, L. B. 11 Eq. 86; 40 L. J. 0. 39; Boiesehold Fire AGREEMENT APPLIED TO CONTRACTS. 23 The same principles seem to apply where an offer is made Ch. i. by telegraphic message, to be accepted by the same means of ^°'^' ' communication (y). The sender of a message by telegraph Cip™™"- through the post-office is not bound by errors in the trans- telegraph, mission : as where a person sent a message by telegraph through the post-office ordering three rifles, which was delivered by a mistake in transmission as ordering t/ie rifles ; and the receiver, acting upon some previous negotiations with the sender respecting ffty rifles, sent off that number in execution of the order ; it was held that there was no contract to accept or pay for the rifles sent ; the Court saying " that the post-office authorities are only agents to transmit messages in the terms in which the senders deliver them " (z) . Where a person sent a message through a telegraph company offer- ing a price for goods, which by mistake in transmission was delivered as offering a larger price, and the receiver acted upon it by sending off the goods, which were refused at the larger price ; it was held that the receiver of the message had no remedy against the company, because they acted as agents for the sender only, without any duty to the receiver (cr) . So, where the message was delivered to a wrong person, who acted upon it, it was held that the company did not impliedly warrant the accuracy of the message, and that the receiver had no remedy against them (6). — An offer by telegraph with payment for a reply does not import, expressly or impliedly, that the sending of a reply is a condition of accepting or acting upon the offer ; it is presumptively only a request for a reply (c) . The offer of a contract is made at the time when it is Continu- ance of Jm. v. Grant, L. E. i Ex. D. 216 ; (2) Menkel t. Fape, L. E. 6 Ex. 7 • 48 L. J. Q,. B. 577 ; overruling 40 L. ,T. Ex. 15. Britiih Tel. Co. v. Colson, L. R. 6 (a) Playford t. United Kingdom Ex. 108; 40 L. J. Ex. 97; see r«i. Co., L. E. 4 Q. B. 706; 38 L J lovmsend's case, L. E. 13 Eq. 148 ; ft. B. 249. 41 L. J. C. 198 ; WalVs case, L. E. (5) Dixon v. Seuter's Tel. Co., L E 15 Eq. 18 ; 42 L. J. 0. 372 ; Harris' 3 C. P. D. 1 ; 47 L. J. C. P. 1. case, L. E. 7 Ch. 587 ; 41 L. J. C. 625. (c) HawHns, J., Read t. Anderson, M See Stevenson Y. McLean, Jj.n. L. E. 10 Q. B. D. 104; 52 L J 5Q.B. D. 351; 49L. J. Q. B. 701. Q. B. 214. 2f5 CONTKACTS ]3Y AGREEMENT. PabtI. OfCer limited to reasonatle time. Offer limited to return of post. Offer limited to fixed time. communicated ; and it must continue open at the time of the acceptance. — An offer not otherwise limited continues open for acceptance during a reasonable time, having regard to the subject and the circumstances. "It is an implied term in an offer that it shall within a reasonable time and promptly be accepted" {d). An application for shares must be accepted by an allotment within a reasonable time, dependent upon the prospectus and object of the company ; and the applicant is not bound to accept shares allotted after such time has elapsed, though he has not formally withdrawn his applica- tion (e) ; but after notice of the allotment he may become liable as a shareholder, if he does not take immediate proceed- ings to repudiate the shares (/). — An offer by letter may be limited to acceptance by return of post, and must then be accepted within that time : where a letter was sent offering a sale of goods, " receiving an answer by return of post," which letter in consequence of misdirection by the sender was delayed in transmission, and an answer was sent by the next post after delivery accepting the offer ; it was held that the contract was complete, and that as the offer was delayed by the mistake of the sender the acceptance must be taken as against him to have been made in time, though not having received an answer as expected he had sold the goods to another {g). An offer to sell goods sent by letter in the usual course of business, without expressly requiring an answer by return of post, is accepted in time by a letter posted during business hours on the day of receiving the offer, though not the next post (h) . — An offer may expressly limit the continu- ance to a fixed time («'). An agreement to carryall the goods that should be presented for carriage at a certain rate during twelve months was construed as a continuing offer that might (d) Cranworth, L. C, Mevnell v. Surtees, 25 L. J. C. 260; 1 Jui. N. S. 737 ; see Foviers v. Fotoler, 4 E. & B. 619, n. (a). U) Cairns, L. C, J?x p. Bailij, L. R. 3 Ch. 695 ; 37 L. J. C. 670 ; Rainsgale Hotel Co. v. Montefiore, L. E. 1 Ex. 109 ; 35 L. J. Ex. 90. If) Boyle's case, 54 L. J. C. 550. (g) Adams v. Lindsett, 1 B. & Aid. 681 ; see Townsend's case, L. E. 13 Eq. 148; 41 L. J. C. 198. (A) Dunlop V. Hiffffhis, 1 H. L. C. 381, cited ante, p. 24. (') See post, p. 29. AGREEMENT APPLIED TO CONTRACTS. 27 be accepted from time to time by delivering goods for carriage, Ch. i. but not otherwise binding either party {k) . A tender to supply ' goods at certain prices during twelve months is a continuing offer, which may be accepted by ordering goods from time to time during the twelve months, provided the tender is not pre- viously withdrawn (1). A guarantee for the payment of goods suppUed or of money advanced or of bills discounted for a third person duriag a certain time is a continuing offer, which, if not withdrawn, may be accepted during the time by supply- ing the goods or otherwise acting upon it according to its terms (»?). An offer may be revoked at any time by a communication BeTocatiou of such intention to the other party before an acceptance is complete : an acceptance is, in general, not complete until it is in fact communicated to the person making the oifer ; but in some cases it may be completed by merely posting a letter or doing some act authorised by the terms of the offer, with- out further communication («). — At a sale by auction either seller or bidder may retract their respective offers before the hammer falls (o). The seller may retract, though the sale be offered " without reserve " (p) ; and the bidder may retract, though it be provided in the conditions of sale that no person shall retract his bidding (q). — ^An application for shares in a company may be withdrawn at any time before the letter of allotment is duly posted, and not afterwards (r). But if the letter of allotment be misdirected, so as to delay or fail in delivery, it does not satisfy the condition of acceptance, and the appKcation may be withdrawn at any time before the {k) Burton v. G. N. By. Co., 9 Ex. (o) Bayne v. Cave, 3 T. R. 148 ; 507 ; 23 L. J. Ex. 184. ante, p. 11. {I) Great Northern By. T. Witham, {p) Warloiv v. Harrison, 1 E. & E. L. K. 9 0. P. 16 ; 43 L. J. C. P. 1. 295 ; 28 L. J. Q. B. 18 ; see Harris {m) Offord t. Davies, 12 C. B. N. S. v. Nickerson, L. R. 8 Q. B. 286 ; 42 748 ; 31 L. J. C. P. 319 ; Morrell v. L. J. Q. B. 171 ; and see "the Sale Cowan, L. E. 7 C. D. 151 ; 47 L. J. of Land by Auction Act, 1867," post, C. 73; North, J., Clarke v. Birley, p. 306. L. R. 41 C. D. 435 ; 58 L, J. C. 616 ; {q) See Sugden, V. & P. 14th ed. see post, p. 29. 14 ; Dart, V. & P. 6th ed. vol. i. 139. in) See ante, pp. 21, 23. (r) Harris' case, L. E. 7 Ch. 587 41 L. J. C. 625 ;•««<«, p. 24. 28 CONTRACTS BY AGREEMENT. PaetI. letter is actually received (.s). So, if it is addressed to a wrong person who is not authorised to receive it {t). And if the letter of allotment is not an absolute acceptance of the terms of application, and introduces new terms or conditions, the application may he withdrawn (m). Notice of The revocation of an offer, not communicated to the other revocanon. _ ' party, or not communicated to him until after he has accepted the offer, is inoperative : as in the case of a letter of revoca- tion not delivered until after the offer contained in a former letter was accepted, though posted before the acceptance {x). Where a letter was written to a merchant abroad offering goods for sale, which on receipt was accepted by telegram and letter ; and before the letter containing the offer was received the writer had posted a second letter withdrawing the offer, which was not received until after the acceptance was com- plete ; it was held that the letter of withdrawal, arriving after the acceptance, was inoperative ; and that there was no power of withdrawing the offer by the mere posting of a letter stating the change of intention [y). In a similar case, but in which the sale of goods was conducted by telegraphic com- munication, a telegram withdrawing the offer to sell was despatched before, but was not received until after, the despatch of the telegram announcing the acceptance of the buyer, and it was held to be inoperative (s) . — If an offer is in fact revoked and the other party has notice of the revoca- tion from whatever source, he cannot after such notice bind the party making the offer by an acceptance (a) . If a vendor after offering property for sale to one person sells it to another, there is in fact a revocation, but which is not opera- tive to withdraw the first offer without notice of the sale to the person to whom that offer was made ; if the first offer be accepted before such notice there would be two binding con- (s) See Townsend's case, Xi. R. 13 (x) Byrne v. Van Tmihoven, L. E Eq. U8 ; 41 L. J. C. 198. fi C. P. D. 344 ; 49 L. J. C. P. 316. (<) McWs case, L. E. 4 Eq. 9 ; 36 (j/) Bijrve t. Van Tienhoven, supra. L. J. C. 748 ; ante, p. 22. (z) Stei-enson v. Mclean, L. E. 5 [u] Ante, p. 18. See Penteloui's Q. B. D. 351 ; 49 L. J. Q. B. 701. case, L. E. 4 Ch. 178 ; 39 L. J. C. 8 ; (a) Dickinson v. Bodd, L. E. 2 C. D Feek's case, L. E. 4 Ch. 532. 463 ; 45 L. J. C. 777. AGREEMENT APPLIED TO CONTRACTS. 29 tracts against the vendor, raising a question of priority in Ch. I. equity as to the right to the specifio property (h). '. 1_1_ , The offer of a contract may be revoked, though it expressly Eevocation gives a fixed time for acceptance ; the effect of such giving ing offer. ' of time being merely to fix a limit beyond which the offer shall not continue (c). Where a written offer was [made for purchasing a house, with the condition that a definite answer should be given within six weeks ; it was held that the offer might be revoked at any time during the six weeks, and that an acceptance made after such revocation was inoperative (d). In a case in which it was stated upon the pleadings (under the old system of pleading) , that the defendant had proposed to the plaintiff to sell certain goods to him, if he would give notice of his agreement to purchase them before a certain hour, and that the plaintiff had given notice accordingly before that hour, it was held that an agreement was not sufficiently alleged, because the defendant was not bound to continue his offer, and there was no averment of the fact that he did so (c) . A continuance of the offer might have been inferred as a matter of fact from the absence of any evidence of withdrawal ; but such an inference could not be imported into the pleadings without a distinct averment ; and " all that the judgment affirms is, that a party who gives time to another to accept or reject a proposal is not bound to wait till the time expires " (/). So where a written offer was made for the sale of goods, giving three days for acceptance, and within the three days the buyer went to the seller for the purpose of accepting, when the seller said that he had offered the goods to another person, and declined the sale ; it was held that there was no contract, because at the time of the buyer communicating his acceptance of the offer the seller revoked it {g) . — Upon this principle a continuing guarantee Eevocation offered for a certain time of the current account of a debtor ?f ^°^*™'^' ramtee. {b) See Dickinson v. Dodd, supra. (/) Lush, J., Stevenson v. McLean . (c) See ante, p. 26. L. R. 5 Q. B. D. 351 ; 49 L. J. Q B. [d) EoutledycY. Grant, iB'mg. 663; 701. Bee Bristol Bread Co. v. Maffgs, L. E.. {(,) Head v. Diggon, 3 M. & E. 97. 44 C. D. 616 ; 59 L. J. C. 472. See Dickinson v. Bodds, L. R. 2 C. D {e) Cooke v. Oxleij, 3 T. E. 653. 463 ; 45 L. J. C. 777. 30 CONTRACTS BY AGREEMENT. F-^BT I- for goods sold, or for money advanced, or for bills discounted, which may be accepted by acting upon it from time to time, is revocable by notice given at any time during its continu- ance, except so far as it may have been previously acted Eeyocation upon (h). — And a tender made, in answer to an advertisement, of LGIIQ.6I* i- \ / for the supply of goods to order at fixed prices during a certain time, though accepted by the advertiser, amounts only to an offer, which may be withdrawn at any time, except as to orders previously given ; there being no obligation on the other side to give any orders [i) . Variation A.S an offer may be wholly revoked, so it may be varied at any time before acceptance; and where negotiations ensue upon an offer for modification of its terms, the offer may be withdrawn at any time during the negotiations (/c) ; but until withdrawn or varied, the original offer presumptively continues open for acceptance (J). So, a qualified acceptance is equivalent to a new offer, and may be withdrawn, as may the original offer, pending subsequent negotiations (m). Eevooation The acceptance of an offer may be withdrawn or intercepted anoe. in fact at any time before it is communicated to the other party ; but after communication it cannot be revoked without his consent. Thus, the acceptor or indorser of a bill of exchange may cancel his signature at any time before delivery of the bill («). — A letter once posted cannot be withdrawn by reason of the regulations of the post-office ; but the operation of the letter may be revoked by any other means, if possible, before it is actually dehvered (o). Thus, [h] Ante, p. 27 ; Offord v. Davies, (I) Stevenson v. McLean, L. R 5 12 0. B. N. S. 748 ; 31 L. J. 0. P. Q. JB. D. 346; 49 L. J. Q. B. 701. 319. See Beckett v. Addyman, L. R. [m) Lucas t. James, 7 Hare 410 ■ 9 Q. B. D. 783 ; 51 L. J. Q. B. 597 ; see Bristol Bread Co. v. Manns L r' Burgess v. JSve, L. R. 13 Eq. 450 ; 41 44 C. D. 616 ; 59 L. J. C. 472 ; Bel- L. J. C. 515 ; Clarke v. Birley, L. R. lamy v. Bebenham, (1891) 1 Ch 41'' • 41 CD. 435; 58 L.J. C. 616. 60 L. J. 0. 166. (i) Cfreat Northern By. v. WiHiam, (») Cox v. Troy, 5 B. & Aid 474 • L. R. 9 C. P. 16; 43 L. J. 0. P. 1 ; Exp. Cote, L. R. 9 Ch. 27; 43 L j' see Burton t. G. N. By., 9 Ex. 607 ; B. 19. 23 L. J. Ex. 184. (o) Cockbiim, C. J., Keiucombe t. (Ic) Thornbury v. Bevill, 1 Y. & C. Lie Moos, 2 E. & E. 271 ; 29 L. J. Q C. 563; Hyde v. Wrench, 3 Beay. B. 4. See .BaJjO. Cote, L. R. 9 Ch 27 • 334 ; Gilkes v. Leonino, 4 C. B. N. S. 43 L. J. B. 19. ' 485. AGREEMENT APPLIED TO CONTRACTS. 8 1 if a letter accepting a proposed contract be posted, and a Ch. i. Sect. I. subsequent letter recalling the acceptance be also posted and arrive at the same time with the former letter, there is no contract {p). — ^A revocation or change of intention as to acceptance not communicated until after the acceptance is complete is void of operation : as where the vendor of an estate accepted an offer to purchase by a letter sent by post, and in the course of the following day the estate was sold to another purchaser by an agent of the vendor in ignorance of the former sale ; it was held that the second sale could be no revocation of the acceptance of the first {q). An offer of a contract is put an end to by a refusal of it ; Eefusai of and it cannot afterwards be revived by a mere acceptance, ° '^^' without a renewed consent of the person who made it. " If an offer made is rejected, the party making it is relieved from liability on that oifer, and the party who has rejected the offer cannot afterwards at his own option convert the same offer into an agreement by acceptance ; for that purpose he must have the renewed consent of the person who made the offer "(r). An offer which has not been accepted in the lifetime of the Termina- maker is necessarily terminated by his death ; nor can the by death, representatives of the deceased be made liable upon the unaccepted offer (s) . Thus, a continuing guarantee, so far as it is a mere offer which may be acted upon, is revoked as to future action upon it, by notice of the death of the guarantor {t). So an agency or authority to contract on behalf of a person is terminated by his death, and a contract purporting to be made under it, though without notice of the death, is not chargeable against his representatives {ii). — ■ An offer is also terminated by the death of the person to (p) Dunmore t. Alexander, 9 Shaw {t) CouUhart v. Cleimntson, L. E. 5 & Dunlop, 190. Q. B. D. 42 ; i9 L. J. Q. B. 206 ; {q) Fatter v. Sanders, 6 Hare, 1. Me Sherry, L. E. 25 C. D. 692; 53 {r) Per cur. Sheffield Canal Co. v. L. J. 0. 404 ; ante, p. 29. Sheffield Ry., 3 Ky. Cas. 132 ; Ryde («) BUdes v. Free, 9 B. & C. 167 ; T. Wrench, 3 Beav. 334. Companari v. Woodburn, 15 C. B. 400; is) Mellish, L. J., Dickinson v. post, p. 406. Dodds, L. E. 2 C. T>. 475. 32 COMKACTS liY AGREEMENT. Paet I. whom it was made without having accepted it ; and in such case an acceptance by the representatives of the deceased would he inoperative, unless made upon a continuance or renewal of the offer to them {v) ; thus an offer of shares by a company to a shareholder, who dies before acceptance, cannot be accepted by the executor in his own name (x). — An offer relating to the property of a person is terminated by his bankruptcy, which transfers all his property to trustees (jj) . Time of contract. Place of contract. A contract is j)resumptively deemed to be made at the time of the acceptance which completes it, and not to relate back to the time of the offer (s). Accordingly, under a contract of sale, passing the property in the goods sold, the title of the buyer dates not from the offer made, but from the acceptance ; and therefore the buyer cannot maintain an action for any loss or injury to the goods happening before the acceptance («) . Nor, until there is a binding contract of sale, has the buyer any insurable interest in the goods sold ; and not having any present interest in the goods, he cannot insure the profits of the expected contract (b). — If the sub- ject of contract is within the Statute of Frauds, there is no available contract until the requirements of the statute are satisfied (c). A contract is presumptively made at the place of accept- ance, there being no contract until the acceptance : as where an order for work is given, and accepted by doing the work at the place required by the order (d) ; or where an order is given for goods, and accepted by delivering the goods at the place ordered (c) . In the case of contracts made by letter or (v) Werner v. Humphreys, 2 M. & G. 853. {x) Buff's Executors, Ii. E. 32 C. D. 301. (ij) Meynell v. Surtees, 25 L. J. C. 257. (s) See Dickinson v. Dodds, L. E. 2 0. D. 463; 45 L. J. C. 777. (a) Fclthouse v. Bindley, 11 C. B. N. S. 869; 31 L. J. C. P. 204. (A) Stockdale y. Dunlop, 6 M. & "W. 224 ; Seagram v. Un ion Marine Go. , L. E. 10. r.305; 3oL. J. C. P. 172; Anderson v. Morice, L. E. 1 A. C. 713 ; 46 L. J. H. L. 11 ; Stock t. inglil L.E. 12Q, B.D. 564; 53L.J. Q. B. 356 ; Inglis v. Stock, L. E. 10 Ap Oa. 263 ; 54 L. J. Q. B. 582. (c) Bloxsome v. JFilUams, 3 B. & C. 232 ; see Arts v. Orchard, 6 H. & N. 160 ; 30 L. J. Ex. 21 ; Felthouse v. Jiindleif, supra. (d) Neu-combe v. BeSoos, 2 E. &E 721 ; 29 L. J. Q. B. 4. (e) I'aylor v. Jones, L. E. I C. P. D S7; 45 L. J. C. P. no. AGREEMENT APPLIED TO COXTEACTS. 33 telegraph the place of the contract is determined by the Cn. I. Sect I place whence the acceptance is dispatched, the contract being — ^ then and there complete (/). An implied contract arising from an account stated or admission of debt contained in a lejtter arises at the place where the letter is received {g). The contracts on bills of exchange and promissory notes are created not merely by the drawing and signature, but also by the issue, and therefore become binding at the place of delivery {h). In contracts withia the Statutes of Frauds, as there is no available contract until the requirements of the statute are satisfied, the place of contract is taken to be where a written agreement or memorandum is signed, or where there is delivery of goods, or part payment {i). The place of contract is material chiefly with reference to Jurisdio- the jurisdiction of inferior courts ; in which it is necessary inferior at common law for a plaintiff to allege and prove that the °° whole cause of action took place within the jurisdiction of the court (y) ; including in the cause of action the contract and the breach and every fact material to be proved in support of the claim {h) ; and including the assignment of the contract, if the action is brought by an assignee {I). — Ey the County County Courts Act, 1888, 51 & 52 Yict. c. 43, s. 74 (repeating '^°'"'^- former enactments), an action may be commenced by leave of the judge or registrar " in the court in the district of which the cause of action or claim, wholly or in part, arose." And by the Mayor's Court Act, 1857, 20 & 21 Vict. c. elvii., Mayor's s. 12, the same terms are used to give jurisdiction. Under the above enactments the County Coxirt and the Mayor's Court have jurisdiction, if any part of the cause of action took place within the jurisdiction ; and for this purpose the (/) Cowmy. O'Connor, L. E. 20 Archer, L. E. 14 Q. B. D. 1 ; 54 Q. B. D. 640. li. J. Q. B. 12. See^xisi!, p. 251. (ff) Evans v. Nicholson, 45 L. J. (j) 1 Saund. Eep. 99, n. (3), Pea- C. P. Ill, n. (4); 32 L. T. N. S. cock v. Bell; see Cooke v. Gill, L. 778 ; TayUr y. Mcholls, L. E,. 1 E. 8 C. P. 107 ; 42 L. J. C. P. 98. 0. P. D. 242 ; 45 L. J. C. P. 455. {k) Brett, J., Cooke v. Gill, supra; Ih) Chapman v. Cottrell, 3 H. & C. Allhusen v. Malgarejo, L. E. 3 Q. B. 865 ; 34 L. J. Ex. 186 ; Cox v. Troy, 340 ; 37 L. J. Q. B. 169. 5 B & Aid. 474 ; ante, p. 30. {I) Read v. Brown, L. E. 22 Q. B. (i) Aris T. Orchard, 6 H. & N. D. 128; 58 L. J. Q. B. 120. 160 ; 30 L. J. Ex. 21 ; Alderton y. L. " 34 CONTRACTS BY AGREEMENT. Part I. offer of a contract is held to be part of the cause of action, though it was accepted and performed out of the juris- diction (m). The rule of the common law as to the whole cause of action still applies in proceedings against a garnishee by process of foreign attachment in the Mayor's Court ; and " to entitle the plaintiff to an attachment, two things must concur, viz., that the cause of action, that is, the whole cause of action, arose within the city, and that the person in whose hands the money or the goods are attached, the garnishee as he is called, resides in the city" (n). CoSt™^ By the Eules of the Supreme Court under the Judicature Acts, Order XI. r. 1, " Service out of the jurisdiction of a writ of summons may be allowed by the court or a judge whenever (amongst other cases) the action is founded on any breach or alleged breach within the jurisdiction of any con- tract wherever made, which according to the terms thereof ought to be performed within the jurisdiction ; unless the defendant is domiciled or ordinarily resident in Scotland or Ireland" (o). A contract of indemnity by a foreigner which presumptively may be demanded and paid anywhere is not within this order (^). The place of contract is also material as prima facie denoting the law by which it is to be construed and regu- lated (q) ; and the law by which the capacity of the parties to contract, as dependent upon infancy or marriage, is deter- mined (r) ; and the liability to probate duty and right to administration (s). (m) Green v. Seach, L. R. 8 Ex. (jo) Belly. Antwerp line, (1891) 1 208; 42 L. J. Ex. 151; see £ort7twicle Q. B. 103 ; 60 L. J. Q. B. 270 ; see T. Walton, 15 C. B. 501; 24 L. J. DubotitY.Macpherson,lj.'Si.2ZQ,.'B. C. P. 83 ; Eead v. Brown, supra. D. 340 ; 58 L. J. Q. B. 496. (n) Brett, L. J., Coojce v. Gill, (q) See post, -p. n 6. supra; Mayor of london v. Gox, L. E. ()■) Eldon, L. C, Meade v. Roberts 2 H. L. 239 ; 36 L. J. Ex. 225. 3 Esp. 183 ; SottomayorY. Be Barros (o) SarrisY. Fleming, L. R. 13 0. L. R. 6 P. D. 1 ; 49 L. J. P. D. 1 ; D. 208; 49 L. J. C. 32 ; see Vaughan Lee t. Abdy, L. R. 17 Q. B. D. 309.' V. 7F"eKo«, L. R. lOO.P. 47; 44L. J. (s) Commiss. of Stamps v. Bop'e C. P. 64 ; Wancke v. Wingren, 58 (1891) A. 0. 476 : 60 L J P C 44 ' L. J. Q. B. 519. ■ ■ ■ CONTRACTS WITH EXECUTED CONSIDERATIONS. 35 Ch. I. Sect. I. § 3. Contracts with Executed Considerations. PASE Considerations executed and executory — contracts witli executed considerations — considerations executed upon request 35 Money paid upon request — money paid by agents — money paid under indemnities 38 Consent to execution of consideration — goods supplied to wife or cMld 40 Consideration executed without request, or against the wiU of another 41 Consideration obtained by wrong or fraud — under a fraudu- lent contract , 43 Debt implied upon the execution of an executory considera- tion — part execution of executory consideration — where completion is prevented by party — where prevented by accident — where contract rescinded before completion . , 45 Implied promise to pay the value of an executed con- sideration 53 The consideration upon which a contract is made may be Considera tioHS 6SG" executed or executory. In the former case the consideration cuted and is executed by one party in return for the promise of the ^^^™ °^^ other ; and nothing remains to be done but to perform the promise according to its terms. In the latter the consideration is a promise made by one party in return for the promise of the other ; there are mutual promises which have to be per- formed on both sides, and the promise on one side may be dependent or conditional upon the performance on the other according to the construction of the terms («). Contracts with executory considerations or mutual pro- mises are framed in special terms expressing the intention of the parties respecting the subject-matter; as in leases, mort- gages, charterparties, policies of insurance and the various matters which may be the subject of contract. The treat- ment of these subjects in detail is beyond the scope of the present work ; but they are referred to throughout in explanation and illustration of principles. Contracts with executed considerations apply to equally various matters, but (s) See ante, p. 7 ; post, p. 664. d2 36 CONTRACTS BY AGREEMEKT. Paet I. Contracts •with executed considera- tions. they depend to a great extent upon inferences of fact which are capable of being referred to certain common forms and general rules. Contracts with executed considerations appear either in the form of a request to perform the consideration, followed by the performing of the consideration according to the request; or in the form of an offer of the consideration, followed by accepting the consideration offered. In either case there is no contract until the consideration is executed, and so long as the consideration remains executory it is voluntary and may be withheld; differing in this respect from contracts with executory considerations or mutual promises, in which the contract is complete upon the mere interchange of pro- mises, and the consideration on either side, though executory, is obligatory (i!). But the executed consideration is not a past consideration, in the sense of having been executed before the making of the promise ; the execution of the con- sideration and the making of the promise being concurrent acts ; and a promise afterwards made in respect of the same consideration, though in express terms, would be void as being made upon a past consideration (?f) . — In the leading case upon executed considerations, the declaration of the plaintiff, under the old system of pleading, alleged that the defendant having committed a felony requested the plaintiff to endeavour to obtain his pardon, whereupon the plaintiff did by all the means he could endeavour to obtain the pardon ; and afterwards, in consideration of the premises, the defendant promised the plaintiff to pay him. It was objected to this declaration, in arrest of judgment, that the consideration was alleged to have 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 vahd contract was sufficiently alleged in the request of the plaintiff's services and the rendering of the services in pur- suance of the request; and the court agreed "that a mere voluntary courtesy will not have a consideration to uphold an {I) Ante, p. 7. (m) Ante, p. 8 ; Hopkins v. Logan, 5 M. & W. 241 ; Tindal, C. J., Katie V. Dtitton, 7 M. & G. 815. CONTRACTS WITH EXECUTED CONSIDERATIONS. 37 assumpsit ; but if that courtesy were moved by a suit or Ch. i. request of the party that gives the assumpsit it "will bind" [oc). — AoocJrdingly it has been laid down as a general principle Considera- that an executed consideration will not support a promise cutedupon unless the consideration was moved by a previous request. ^^'^^^^ " But, at the same time, it is held that a previous request is implied in law, though non-existent in fact, from the acceptance of a consideration offered {y) . The import of the principle thu5 stated seems to be that in all cases the consideration must be intended on both sides as not gratui- tous or voluntary, but executed in respect of a promise ex- pressed or implied (s). And in pleading contracts of this kind, " it appears to be unnecessary to allege a request, if the act stated as the consideration cannot from its nature have been a gratuitous kindness, but imports a consideration per se ; it being immaterial to the right of action, whether the bargain, if actually concluded and executed, or the loan, if made, and the moneys actually advanced, was proposed and urged by the buyer or by the seller, by the borrower or by the lender" (a). — Upon the above principles, in the ordinary cases of goods sold and delivered, money lent, work and labour performed or services rendered, a promise to pay for the executed consideration is presumptively inferred either from a- previous request to execute it, or from a suiBcient accept- ance of it as executed (h). But the circumstances may be such that the consideration was executed without the under- standing or expectation of payment : as the professional services of a barrister, which by the usage of the English bar are honorary and do not import any legal claim for remimeration (c), but a non-professional arbitrator may claim for his services {d). And a feUow of the Eoyal College of (x) Lampleigh v. Srathwait, Ho- (a) Parke, B., Victors y. Davies, 12 bart, 105 ; 1 Smith, L. C. 9tli ed. M. & W. 759, citing Msher v. Ft/ne, 153 ; see Sunt v. Bate, Dyer, 272 a ; supra. Sidnam y. Worthington, Cro. Eliz. 42. (5) Ante, p. 11 ; Mills v. Bhekall, (y) Notes to Zampleigh v. Brath- 11 Q. B-. 358. wait 1 Smitt's L. C. supra; Smitli (c) Kennedy y. Brown, 13 C. B. on Contracts, 8th ed. 196 ; see Fisher N. S. 677 ; 32 L. J. 0. P. 137 ; The Y Fyne 1 M. & Cr. 265, n. {h). Queen Y. Soutre, L. R. 9 Ap. Ca. 745 ; ' U) Esher, M.E., Re Chappell, L. K. 53 L. J. P. 0. 86. 16 Q B D. 307 : 55 L. J. Q. B. 406. [d) Crampton v. Rtdley, L. R. 20 Q. B. D. 48. 38 CONTEACTS BY AGREEMENT. PabtI. Physicians is precluded from suing for any remuneration for professional services by a bye-law of the college {e). It may also] appear that the consideration was requested or accepted upon the express understanding that the remuneration should be left to the will of the acceptor; as in the case of services rendered upon the express terms of being paid so much as the employer shall please to give ; or in the expectation of a legacy at his death (/). Money paid upon request. Money paid by agent. A common form of executed consideration is the payment of money for another, either upon an express request, or under circumstances from which a request to pay and pro- mise of repayment may be inferred. The payment accord- ing to the request creates a debt, which is technically de- scribed as a debt " for money paid by the plaintiff for the defendant at his request." This summary form of statement was allowed under the old system of pleading in a great variety of transactions ; leaving the particulars to be supplied by order of the court, if required [g) . Under the system of the Judicature Acts it is now required that " every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim ; " and therefore a more particular statement of facts may in some cases be necessary {h) . The employment of an agent in any business which in- volves the payment of money, imports a request to him to pay the money, with a promise to repay it ; and creates a debt for the money paid in execution of the agency. The employment of an auctioneer in his business imports a request to pay the auction duty (*'). The employment of a broker to buy or sell stock or shares imports a request to make all payments required by the then existing rules of the Stock («) Post, p. 643. See the Medical Act, 21 & 22 Vict. c. 90, s. 31 ; Gib- bon V. Budd, 2 H. & C. 92 ; 32 L. J. Ex. 182. (/) Ante, p. 3 ; Maddison v. Alder- son, L. E. 8 Ap. Oa. 467 ; 62 L. J. Q. B. 737. [g) Alexander v. Vane, 1 M. cS; W. 511 ; Brittain t. lloijd, 14 M. & W. 762; Lewis V. Campbell, 8 C. B. 54l' (A) Order XIX. rr. 4, 24. (i) Brittain v. Lloyd, 14 M. & "W 762. CONTEACTS WITH EXECUTED CONSIDERATIONS. 39 Exchange, or other market in which he is employed to act, so Ch. I. far as such rules are legal and reasonable {Jc). The employ- — ^ ment of a betting agent, according to the known usage of the business, imports a request to pay the bets made by him for his employer, so far as he has himself undertaken to pay them to the winner, although they are not recoverable by the winner by law (/). A request or authority given to do any act (not being an Money act in itself illegal), which involves the person doing it in indemmty. liability to pay money presumptively imports a request to pay the money and a promise of indemnity (?«) . As in the case of an auctioneer employed to sell goods, which in fact were the property of a third party who recovered the value against him ; the auctioneer was held entitled to recover the amount as money paid for his employer («). So in the case of a sheriff having executed a writ of fi. fa. against certain goods by the special direction of the execution creditor, which did not belong to the debtor, and for taking which the sheriff was compelled to pay the true owner; but a sheriif is in general bound to execute a f. fa. at his own risk without indemnity, unless the creditor intervenes to point out the goods (o) . So a broker employed to distrain is entitled to an indemnity against the distress being wrongful ; but he is not entitled to indemnity for his own wrongful acts in executing the distress, such as taking privileged goods, unless specially directed to do so by his employer (^j). — A request to stand surety for a debt imports an indemnity by the debtor for the money paid under it (y). Q:) Saihy y. WUkins, 7 C. B. 886 ; post, p. 650. Westropp Y. Solomon, 8 C. B. 345; (m) JPercur. Toplisy. Grane,6'Bmg. Tatjhr v. Stray, 2 C. B. N. S. 175 ; N. C. 650 ; Betts y. Gibbins, 2 A. & Smith T. Lindo, 5 C. B. N. S. 587 ; E. 57 ; Bugdak y. Lovering, L. E. 10 Ferry v. Barnett, L. R. 15 Q. B. D. C. P. 196 ; 44 L. J. 0. P. 197. 388 ; 54 L. J. Q. B. 466 ; Barker v. (») Adamson v. Jarvis, 4 Bing. 66. lEdwards, 57 L. J. Q. B. 147 ; Sartas (o) Humphreys v. ]?latt, 5 Bligh, Y. Ribbons, L. E. 22 Q. B. D. 254 ; N. S. 154. 58 L. J. Q. B. 187 ; and see post, (p) Toplis v. Grane, 5 Bing. N. C. p. 437. 636 ; see Ibbett v. Be la Salle, 6 H. & (0 Bead Y. Anderson, L. E. 13 Q. N. 233 ; 30 L. J. Ex. 44. B. D. 779 ; 63 L. J. Q. B. 532 ; see (?) Sidnam v. Worthington, Cro. Seymour Y. Bridge,!^. 'R. 14 Q. B. D. Eliz. 42; see Alexander v. Vane, 1 460 ; 64 L. J. Q. B. 347 ; and see M. & W. 511. 40 CONTRACTS BY AGREEMENT. Past I. A request to draw or accept an accommodation bill im- pliedly indemnifies the drawer or acceptor for the payment, and also for the costs of an action on the bill, if he is further requested to defend such action (r). So, a request to become bail imports an indemnity for the expenses of the bail ; but not for the amount of the recognizance forfeited for non- appearance, such an indemnity being illegal (s) . A request to bring or defend an action, in which the party so requesting is interested imports an indemnity against all costs and charges incurred ; which may be recovered as a debt for money paid under the request (t). A request made to a person to detain goods which are claimed by a third party, who brings an action and recovers damages for the detention of the goods, imports an indemnity for the damages and costs paid in the action (u) . So with a request to deliver up goods claimed by a third party, who sues and recovers damages for the wrongful delivery (x). Consent to execution of consi- deration. Consent to the execution of the consideration may be equi- valent to a request or acceptance in importing a promise to pay for it. Where a surgeon, having attended a pauper, charged the overseer of the parish whose duty it was to provide the pauper with medical attendance, it was held that the knowledge of the overseer of the surgeon's attend- ance, without repudiating it, was equivalent to an acceptance of his services and rendered him liable to pay for them (//). And where under like circumstances the overseer requested the surgeon to make out his bUl to the parish, it was held that " the conduct of the overseer amounted to an acknow- ledgment on his part that the plaintiff had attended at his wish, and upon his responsibility " (z). (r) BUaden v. Charles, 7Bing. 246; Beeeh v. Jones, 5 C. B. 696 ; Garrard T. Cottrell, 10 Q. B. 679 ; see Skigh V. Sleigh, 5 Ex. 514 ; Crampton v. Walker, 3 E. & E. 321 ; 30 L. J. Q. B. 19. Is) Jones V. Orchard, 16 0. B. 614 ; 24 L. J. C. P. 229. [t) Bailey v. Macaulay, 13 Q, B. 815 ; see Garrard y. Cottrell, supra. (m) Betts V. Gibbiiis, 2 A. & E. 57. (x) BugdaU t. Lovering, L. K 10 C. P. 196 ; 44 L. J. C. P. 197. (j/) Laml V. Bunce, 4 M. & S. 275 • Faynter v. Williams, 1 C. & M. 810 ; see Tomlinson t. Bentall, 5 B. & .o' 738. (?) Wing T. Mill, 1 B. & Aid. 104. COKTRACTS WITH EXECUTEn CONSIDERATIONS. 41 TJpon this principle a husband may be charged with goods Ch. i. Sppt I supplied to his wife without his authority, upon his after- wards sanctioning the use of them («). — A father cannot be g™pi;edto charged for goods supplied to a child without his request or ^'?,^'"' authority, there being no legal duty in a father at common law to maintain his child ; and it is held that no inference of a promise to pay can be drawn from his moral duty, or from his mere knowledge of the supply ; and that in order to render a father responsible in law for a debt incurred by his child, a contract must be proved against him in the same manner as against any other person (b). Nor is the mother chargeable in respect of her separate estate (c) ; but a wife may be authorised by her position to bind her husband to pay for necessaries supplied to the children committed to her charge (d) . Money paid for another without his request, express or Considera- implied, creates no debt, although it may discharge a debt or executed liability ; for " no man can by a voluntary payment of the requeS! debt of another make himself that man's creditor, and recover from him the amount so paid " {e) . The voluntary payment of premiums on a policy of insurance in order to preserve the policy gives no claim against the insured unless paid upon his request ; nor does it create any hen upon the policy unless founded upon some duty or interest, as that of a trustee or mortgagee (/). TJpon the same principle no claim can be made for work done Services or services rendered to another without his request ; though mahout request. (a) Montague v. Benedict, 3 B. & C. L. J. M. 92. 631 ; 2 Smith's L. C, 9tli ed. 504 ; (c) Sodgens v. Sodgens, 4 CI. & F. post, p. 499. 373. (5) Mortimore Y. Wright, 6 M. & {d) Bazeleyv.Fordei;l,.'R.3Q.'B. W. 482 ; Sodges v. Hodges, Peake, 559 ; 37 L. J. Q. B. 237 ; see post. Ad. C. 79 ; Seaborne^. Maddy, 9 C. & p. 498. P. 497; Zawr. Wilkin, 6 A. & B. {e) Kenyon, C. J., Child y . Morley , 718. A parent may be charged under 8 T. R. 613; post, p. 68. the poor law with the cost of relief (/) Re Leslie, L. R. 23 C. D. 552 ; of children : 43 Eliz. c. 2, s. 7 ; see 52 L. J. 0. 762 ; Falclce v. Scottish MaundY. Mason, L. E. 9 Q. B. D. Imp. Ins., L. R. 34 C. D. 234; 66 254 ; 43 L. J. M. 62 ; and see 33 & L. J. C. 707 ; Winchelsea's Folicy, 34 Vict. c. 93, ss. 13, 14 ; Coleman v. L. R. 39 C. D. 168 ; 58 L. J. C. 20 ; Birmingham, L. E. 6 Q. B. 615 ; 50 Broune v. Price, 4 C. B. N. S. 598. 42 CONTRACTS hY AGREEMENT. Past I. Building upon the land of another. he involuntarily derives benefit from them. Thus where the captain of a ship, having contracted to take the command for a voyage at monthly wages, abandoned the command during the voyage, but afterwards having assisted to navigate the ship, claimed to be paid for his services ; it was held that, though entitled to the monthly wages accrued due before the abandonment, he could not charge for the subsequent services because they were executed without the request or knowledge of the owner of the ship, and without his voluntary accept- ance ((/). And upon this principle at common law no claim can be made for salvage services voluntarily rendered to property (7i). But by general maritime law a reasonable remuneration is allowed by the court to salvors of ships and goods from the perils of the sea, with a lien upon the property saved («'). — In the case of work done and materials provided in building upon land of another, the inference as to the acceptance of the consideration drawn from retaining posses- sion is different from that in the case of goods delivered and retained. The possession of the land necessarily involves possession of the buildings in their existing state, without allowing any option of rejecting them, and therefore without raising any inference of intention as to payment ; there must be some positive request or some ratification proved in order to create a contract to pay the value (A-) ; nor in such case would there be any lien upon the land for the value of the work and materials {I). But if a person builds upon land with the knowledge of the landlord and under a promise or expectation raised by him that he wlU. grant a certain interest in the land, the court will compel him to do so (;«). (ff) Taylor v. Zaird, 1 H. & N. 266 ; 25 L. J. Ex. 329. See Brett, M. E,., Zeigh T. Dickeson, L. R. 15 Q. B. D. 65 ; 54 L. J. Q. B. 20. (A) Nicholson v. Chapman, 2 H. Bl. 254. (i) L. Blaoktum, Aiichison v. Lohre, L. R. 4 Ap. Ca. 760 ; 49 L. J. Q. B. 123; Bowen, L. J., Falcke v. Scottish Ins., L. R. 34 0. D. 239; 66 L. J. 0. 707 ; see The Mark Lane, L. R. 15 Adm. 136. (k) Bram-svell, B., Pattinson v. Lucklcy, L. R. 10 Ex. 330 ; 44 L. J. Ex. 180. See Munro v. Butt, S E & B. 738 ; JElUs v. Hamleii, 3 Taunt. 62 ; Burn v. Miller, 4 Taunt. 745 ; Farnsworth v. Garrard, 1 Camp. 38. (0 Fry, J., TTalUs v. Smith, L. R. 21 C. D. 243 ; Cotton, L. J., Falcke Y. Scottish Ins., L. R. 34 0. D. 241. (m) Pining Y.^rmitage, 12Ves. 78; Pamsden v. Bijson, L. R. 1 H. Li. 129 ; Plimmer v. Wellington, L. R. 9 Ap Ca. 699 ; 63 L. J. P. C. 105. CONTRACTS 'WITH EXECUTED CONSIDERATIONS. 43 Still less can any promise be presumed from a considera- Oh. I. tion performed against the will of the other party, though he may derive benefit from it (n) . Where goods are detained deration adversely to the owner, and charges are incurred in the ^^Ij^g^'^ detention, no claim can be made against the owner in respect the win of of such charges ; as, where a shipwright detained a ship in his dock under a lien for repairs, it was held that he could not charge the shipowner with rent for the occupation of the dock (o). Upon this principle the fees for tuition of a child at a public elementary school are not recoverable by action as a debt, because the attendance, being compulsory, can raise no inference of a promise to pay(/)). A person cannot allege that he obtained the consideration by Consi- wrong or fraud in order to contradict the inference 'of a pro- ottained mise on his part to pay for it. In the case of goods wrong- ^JfYaudf fully or fraudulently obtained, the rightful owner may in general waive the wrong and bring an action for goods sold and delivered upon an implied promise to pay the value (q) . Where a person, having a house with gas laid on in the usual way, fraudulently abstracted gas from the main before passing through the meter, it was held that the gas company were entitled to charge for the gas, as sold and delivered by them ; and that in estimating the quantity the defendant might be charged with the greatest amount that could have passed into the house in the given time, according to the maxim omnia prcesmnuntur contra spoliator em ir). Where a person had en- ticed away an apprentice and appropriated his services, it was held that the master of the apprentice might waive the wrong and claim the value of the services as if accepted under a contract to pay for them(s). — Upon this principle a pas- senger, travelling by an excursion train by which no luggage [ri) See StoTtes v. Lewis, 1 T. K. 20. Biddle v. Levy, 1 Starlde, 20 ; Rmsell (o) British Empire Co. v. Somes, E. v. Bell, 10 M. & W. 352. B. & E. 353 ; 30 L. J. Q. B. 229. (r) Birmingham Gas Co. v. Ratcliff, {p) London School Boards . Wright, L. R. 6 Ex. 224 ; 40 L. J. Ex. 136. L. R. 12 Q. B. D. 578 ; 53 L. J. (s) Lightly v. Clouston, 1 Taunt. Q. B. 266. 112 ; Foster v. Stewart, 3 M. & S. {q) Sill V. Ferrott, 3 Taunt. 274 ; 191. Abbotts V. Barry, 2 B. & B. 369 ; 44 COJJTEA.CTS BY AGREEMENT. Paet I. Consi- deration was allowed, and taking luggage with him, was held liahle to pay for the carriage, as having accepted the services of the railway in carrying it it). So it seems if a passenger by an ordinary train, by which only the usual personal luggage of passengers is carried free of charge, takes an excessive quantity, or takes merchandise with him as passenger's lug- gage, he may be charged for the carriage {u). If a passenger travels on a railway without paying his fare, the company may waive the wrong and sue for the ordinary fare as a debt ; but they cannot claim as a debt the extra fare imposed by a bye-law as a penalty (v). But where the consideration has been obtained by means obtained of a Contract with the other party, though induced by fraud, fraudulent the latter cannot assert any other contract than that in fact made. He may affirm that contract, or, disaffirming it, he may recover his property; or he may recover damages for the fraud treated as a substantive wrong (x) . Where a person has been defrauded into selling goods on credit, he cannot by reason of the fraud sue for the price before the credit has expired ; though he may be entitled to treat the sale as a nullity, and claim a return of the goods (y). Where goods were sold to be paid for by a bill of exchange without re- course to the buyer, who knew at the time of the sale that the bill would not be paid ; it was held that though the seller might avoid the sale and claim back his goods, or might sue for damages for the fraud, yet he could not charge the buyer for the price of the goods in an action of debt (s). Where a person had been induced to take a contract to do work for another at a fixed price by a fraudulent misrepresentation of the quantity of the work and after discovering the fraud completed the work and charged the real value ; it was held (t) Sumsey v. N. E. My., 14 0. B. N. S. 641 ; 32 L. J. C. P. 244. (m) See Great Jforthern Sy. Co. v. Shepherd, 8 Ex. 30; 21 L. J. Ex. 286 ; Cahilly. L. ^- N. IF. Ry. Co., 16 C. B. N. S. 154 ; 30 L. J. 0. P. 289. (») London ^ Srighton Ry. v. Wat- son, L. E. 4 C. P. D. 118 ; 48 L. J. C. P. 316 ; see Dyson v. i. # N. W. Ry., L. R. 7 Q. B. D. 32 ; 50 L. J. M. 78. (j) &eepost, pp. 322, 326. [y) Ferguson v. Carrinqton, 9 B. & C. 59 ; see Strutt v. Smith, 1 C. M. & R. 312. iz) Read v. Hutchinson, 3 Camp. 352. ^ CONTRACT'S WITH EXECUTED CONSIDERATIONS. 45 that he could charge no other than the contract price ; though Ch. i. on discovering the fraud he might have ahandoned the con- tract, and recovered damages for the fraud (a). — So, where Goods goods wrongfully obtained have been sold, the rightful owner obtained ■*" may disaffirm the sale and recover his property ; or he may ^^^ ^°^^' affirm the sale, as if made on his behalf, and claim the contract price ; but he cannot charge the buyer with any other contract, in respect of his acceptance of the goods, than that which he has in fact made (6). Where an executory contract has been completely per- Debtim- formed on the one part, and there is left only a present execution^ money payment on the other, the plaintiii may state his to/Tonsi- claim in the general form of a debt founded upon the exe- deration. cuted consideration : as a debt " for money payable for goods sold and delivered ; " or " for work and labour done upon request," or " for money paid upon request," &c., as the case may be, reserving the particular circumstances of the debt, if disputed, to be given in evidence (c). "The principle 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 delivered, which would arise upon the facts of a sale and delivery with- out any special circumstances accompanying them. He who seeks to disturb that inference must not content himseK 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 may be struck out of con- sideration and the contract treated as originally simple, (a) Selway v. Fogg, 5 M. & "W. 83. P. 30. See Buffell v. Wilson, 1 Camp. 401. (c) 1 Wma. Saimd. 269 * ; Stone v. («) SmithY.Sodson,iT.B,.2n; 2 Sogers, 2 M. Sc W. 443; Zucas v. Smith's L. C. 9th ed. 138 ; seeSovUv. Godwin, 3 Bing. N. C. 737. See ante, Fack, 7 East, 166 ; Samazotti v. £oto- p. 37. ring, 7 0. B. N. S. 851 ; 29 L. J. C. 46 CONTRACTS BY AGREEMENT. ^■"'Ti- unconditional, and executed" (c?). — The principle does not apply to contracts created by deed or by record, for whicli at common law distinct forms of action were provided (e). Partexe- Upon the same principle a debt may arise upon a part considera- executed Consideration ; as having been executed upon re- *'™' quest, or as having been accepted and retained under circum- stances importing a promise to pay for it. The question of a debt thus arising upon a part executed consideration may occur : where the further execution of the consideration has been prevented by the default of one or other of the parties ; or where it has been prevented by accident without default of either ; or where it has been dispensed with by their Where mutual consent. — Where after part execution of the conside- completion .ti i i j • • n ^ prevented ration by the one party the completion is refused or prevented y a pa y. ^^ ^^^ other, the former may insist upon his rights under the contract ; but he may in some cases have the right of election to treat the contract as rescinded and to charge the other party with a present debt for the part executed consideration. As where under a contract for the sale of goods upon credit, after delivery of some of the goods the buyer wrongfully refuses to receive more ; the seller may treat the contract as rescinded and charge the buyer with a present debt for the goods delivered (/) . So in the case of an artist employed to paint a picture, or an author employed to write a book, if the employer wrongfully revokes the employment before comple- tion, he may be charged with a present debt for the work then executed {(/) . So where a stockbroker was engaged by a company to dispose of shares upon the terms of being paid a fixed sum upon the allotment of the whole, and after he had disposed of some the company prevented the disposal of the rest by a voluntary winding-up ; he was held entitled to {d) For cur. Severley v. Lincoln Gas Ex. 150 ; Tates v. Aston 4 Q B Co., 6 A. & E. 836; Tindal, 0. J., 182. ' Lucas T. Godwin, 3 Bing. N. C. 743 ; (/) Bartholomew v. MarT^wick 15 see Sheldon v. Cox, 3 B. & C. 420 ; 0. B. N. S. 711 ; 33 L. J. 0. P. 145. JBianchi v. Nash, 1 M. & "W. 645 ; See Mavor v. Ti/ne, 2 Bino-. 285 ' Clark y. Buhner, 11 M. & W. 243; TT^at/ne^s Coal Co.\. Morewood'iQ'L 3^ Faul V. Dod, 2 C. B. 800. Q. B. 746. ' (e) See 2 Wms. Saund. 349 b, (2) {: p. Bishop, L. K. 15 C. D (m) BuUer, J., Tovssaint -v. Martin- 400; 50 L. J. C. 18. DEBTS FOR MONEY PAID. 69 agreement without indorsement does not entitle the surety to Ch. I. notice of dishonour unless expressly stipulated for (6). — A party who has giyen a hill of exchange or promissory note Nation Ml'. for accommodation, that is, without consideration (c), or for a consideration or purpose which is satisfied or has failed, leaving the parties in the same position as upon an accommo- dation bill (d) ; if compelled to pay, may recover the amount as money paid for the party accommodated. So, if a party holding a bill or note for a special purpose, wrongfully nego- tiates it in fraud of that purpose, the party thereby compelled to pay the bill, may recover from him the amount as a debt for money paid for his use (e). Where several persons are co-debtors for the same debt or Contrfbu- liabHity, which as between themselves is payable in several between shares, and one is compelled to pay the whole, or a part "o-iiettors. greater than his share, he is entitled to recover from each of the others a contribution, or proportion of the excess beyond his own share as a debt for money paid (/) : as where one of several owners of land subject to a rent-charge is made to pay the whole, he has a right of contribution from the others (^). Contribution between co-owners of land subject to tithe rent-charge is given by statute (A) . Where tenants in common are under liability to repair, and one of them has executed and paid for the repairs, he has a right of contribu- tion from the other ; but if a tenant in common, under no liability, voluntarily repairs, he cannot charge his co-tenant (i). Where several persons were underlessees at distinct rents of separate parts of premises, the whole of which were held under one lease at an entire rent, and one was compelled under threat of distress to pay the whole rent to the superior (S) Carter v. White, L. E. 25 0. D. L. R. 31 0. D. 100 ; 55 L. J. C. 81. 666 ; 54 L. J. C. 138, post, p. 562. (y) Booth v. Smith, L. R. 14 Q. {c) Driver V. Burton, no,. S. 989; B. D. 323; 64 L. J. Q. B. 119; 21 L. J. Q. B. 157 ; see Sawley v. Christie v. Barker, 53 L. J. Q. B. Beverley, 6 M. & G. 221. 537. {0} Hoopers. Treffry, 1 Ex. 17. (h) 5 & 6 Vict. o. 54, a. 16. (e) Bleadenv. Charles, 1'Bing. 246; (i) Zeiyh v. Didceson, L. R. 15 Sorton V. Biley, 11 M. & W. 492; Q. B. D. 60; 54 L. J. Q. B. 18. see Asprey v. Levy, 16 M. k'W . 851. See Pearson, J., Re Leslie, L. E. 23 (/) Tindal, C. J., Bdger v. Enapp, C. D. 564 ; 62 L. J. C. 766. 5 M. & G. 758; EamsMll v. Edwards, 60 CONTBACTS IMPLIED IN LAW. Paet I. Contribu- tion be- tween co- sureties. landlord, it was held there was no right of contribution between the underlessees, there being no community of interest ; the only remedy being against the lessor who was discharged by the payment (l). Where several persons are co-sureties for the same debt, and one of them is called upon to pay more than his share, he has ^jrwwd facie, and subject to any special agreement between them, the right to contribution from the others proportionately to the amounts for which each is a surety (m). He is also entitled to share any securities which any co-surety may have taken from the principal debtor (ii) ; and any securities which the principal creditor may have taken (o). The fact of several persons being sureties for the same debt presumptively creates the relation of co-sureties with the right of contribution, though they are bound by different instruments and in different amounts and at different times, and unknown to one another ; and the fact of suretyship may be proved by evidence extrinsic to the written instru- ments (p). Where several persons sign a bill of exchange for the purpose of securing a debt, their relation infer se as prin- cipal and sureties may be shown in order to displace or qualif}' their relative rights and liabilities apparent upon the face of the bill : as where one person draws and another indorses a bill of exchange for the accommodation of the acceptor, their relation as co-sureties maj^ be shown in order to claim contribution (q) ; and where several persons indorse a bill successively as co-sureties of the same debt (r) . — But the implied liabilities of co-sureties may be qualified by express contract : thus, if a surety contract to pay the debt only in default of the principal debtor and of the other sureties, he is (?) Milliter V. Runt, 1 C. B. 300 ; see ante, p. 57, Johnson v. TJ^ild, L. K. 44 C. D. 146 ; 69 L. J. C. 322. (m) Dering v. Whichihea, 1 Cox, 318 ; 1 W. & T. L. 0. 6th ed. 114 ; Eldon, L. C.| Crnytliorne v. Swin- burne, 14 Ves. 164; Fry, J., Steele V. Dixon, L. R. 17 C. D. 825; 50 L. J. C. 691; Kemp v. Finclen, 12 M. &W. 421. («) Steele v. Dixon, supra ; Serridge V. Berridge, L. R. 44 C. D. 168 ; 59 L. J. C. 533. (o) Arlkins v. Arcedecliie, L. R. ''4 C. D. 709 ; 53 L. J. C. 102 ; see post, p. 384. (p) Dering x. Winekilsea, supra; Whiting T. Butke, L. R. 10 Eq. 539- 6 Ch. 342. (c?) Reynolds v. Wheeler, 10 C. B N. S. 661 ; 30 L. J. 0. P. 350. ()■) Macdonald v. Whitjkld, L. R. 8 Ap. Oa. 733 ; 62 L. J. P. C. 70. DEBTS FOR MONEY PAID. €1 a surety for the other sureties, but not a co-surety, nor liable Ch. i. Sect II to them for contribution («). Where several persons being respectively sureties for different debts of the same debtor entered into a written agreement to supply funds for dis- charging all the debts in equal shares, it was held that the agreement applied only to the discharge of the debts ; leaving them liable for contribution inter se in proportion to the original debts (t) . Upon the death of one of several co-debtors or co-sureties, Death of though the joint liability to the creditor may rest upon the ot'co*- survivors only, the liabihty to contribution is not increased surety, beyond the original share ; and an action for contribution may be brought against the executor of the deceased (li) . But in the case of a continuing guarantee the executor of a surety is not in general liable to contribute to advances made after notice given of the death of the surety (;r). — If one of insolvency co-sureties becomes insolvent, the contribution of the others surety, is increased by his share. " In equity, those who can pay must not only contribute their own shares, but they must also make good the shares of those who are unable to furnish their own contribution." At law, no allowance was made for the inability of some to pay their shares, but the rule of equity now prevails in all cases {y) . A surety has no claim against a co-surety until he has Accrual of paid more than his proportionate share of the principal debt, " '^™' or more than his proportion of what the sureties can ever be called upon to pay; payment of his share or of less than his share gives him no claim, unless it operates in discharge of the whole debt, or unless the whole debt is othervrise dis- charged, leaving no further liability on the sureties (2). Nor has a surety any claim to have a judicial declaration of (s) Craythorne v. Swinlurne, 14 Vea. see ante, p. 31. 160. (y) Per cur. Lowe v. Dixon, L. E. [t) Arcedeckne v. Howard, 45 L. J. 16 Q. B. D. 458 ; Cowell v. Edwards, C. 622. 2 B. & P. 268 ; Hitchman v. Stewart, (u) Batard v. Sawes, 2 E. & B. 3 Drew. 271 ; 24 L. J. C. 690 ; see 287 ; 22 L. J. Q. B. 443 ; RamsMU v. McKewan's case, L. K. 6 C. D. 447 ; Edicards, L. E. 31 C. D. 100 ; 55 46 L. J. C. 819. L. J. C. 81. (a) Davies v. Sumphreys, 6 M. & (x) Beckett v. Addyman, L. K. 9 Gr. 153 ; Ee Snowdon, L. R. 17 0. D. Q. B. D. 783 ; 51 L. J. Q. B. 597 ; 44 ; 60 L. J. C. 540. 62 CONTRACTS IMPLIED IN LAW. Part I. Contribu- tion between joint "wrong- doers. indemnity before any liability has arisen whioh can give right to an action {a). But in an action against a surety, a co-surety may be brought in by notice to defend, who may then avail himself of all defences of the surety (6). The claim of a surety for contribution entitles him to a complete indemnity and carries interest (c). There is no right of contribution betvreen persons who are all liable for the same wrongful act ; they are severally liable though they may be sued jointly ; and if one is compelled to pay the whole amount of damages, he cannot recover con- tribution or indemnity from the others (c?). So in an action for a wrongful act the defendant is not allowed to bring in another defendant by a third party notice (e). And one defendant cannot sue another for a contribution to the costs of an action to which both are liable (/). — In cases of breach of trust there may be contribution, according to the circum- stances, between those co-trustees who have concurred in ii{g). And by the Directors' Liability Act, 1890, 53 & 54 Yict. c. 65, s. 5, a director who has become liable to make any payment for untrue statements in a prospectus under that Act is entitled to contribution " as in cases of contract " from any other person who would have been liable to make the same payment (/;) . Contribu- tion be- tween 00- insurers. Where several insurers insure the same risk to the same person, they are presumptively entitled to contribution pro (a) HughesSalhtt v. Indian Mam' moth Co., L. E,. 22 0. D. 561 ; 62 L. J. C. 418 ; see Fry, J., Butler v, Sutler, L. E. 5 C. D. 558. [h) Catlender v. Wallingford, 53 L, J. Q. B. 569. (c) Lawson v. Wright, 1 Cox, 275 Sitehman v. Stewart, 3 Drew. 271 24 L. J. C. 690. {d) Merryiveather v. IN'ixan, 8 T. R, 186 ; Lyndhurst, C. B., Colburn v, Patmore, 1 C. M. & R. 73 ; Tindal, 0. J., Shackell t. Hosier, 2 Bing. N. G. 648 ; Thomas v. Atherton, L. R. 10 C. D. 185; 48 L. J. C. 370. ■ (•(!) Horn-ell v. London Omnibus Co., L. R. 2 Ex. D. 365 ; 46 L. J. Ex. 700. (/) Bearshj v. Middletceelc, L. R. 18 C. D. 236; 50 L. J. C. 777; Jessel, M. R., Seal <^- Fers. Adv. Co'. T. McCarthy, L. R. 18 0. D. 368 ; 49 L. J. 0. 615 ; see Stumm v. Dixon L. R. 22 Q. B. D. 529 ; 68 L. J. Q B 183. ■ (17) Samskill v. JSdu'ards, L. R 31 CD. 100 ; 55 L. J. C. 81 ; JBahinY Sitghes, L. R. 31 C. D. 390 ; 55 L J C. 472 ; Re Eyton, L. R. 45 C. D 468 ; 59 L. J. C. 733 ; Bhjth v. Flad'. gate, (1891) 1 Cli. 337 ; 60 L. J C 66. (A) See^os^, p. 310. DEBTS FOR MONEY PAID. 63 raid to satisfy the loss against wliicli they have all insured ; Ch. i. Sect II so that if one insurer pays the whole loss, he stands in the '■ — '- place of the insured to claim contribution from the other insurers ii) . It is immaterial to the right of contribution that the insurances are not all in the same name if they are all in the same interest ; but no contribution arises between insurers who insure the same risk to several persons independently and without any relation between them upon which to found such claim {h) . Nor is there any right of contribution between insurers of different subjects against the same risk, where payment upon one does not diminish the loss on the other ; as in the case of insurances upon a ship and the freight [l). An insurer of property against risks of loss or damage, on Subroga- being compelled to pay the insured, is subrogated to him, insurer to that is, is considered in equity as standing in his place, for ™^'^® ■ the purpose of pursuing his remedies for the loss against any other person primarily liable, to the extent of the interest insured ; upon the principle that, insurance being a contract of indemnity only, the insured shall not under any circum- stances recover more than his loss (;») . As in the case of an insurance upon a ship which is lost in a collision caused by the negligent navigation of another ship the property of a third party («) ; or of an insurance of premises destroyed by fire caused by the wilful or negligent act of a third party (o) ; or of an insurance of demised premises from damage which the tenant is under covenant to restore (jo) ; or of an insurance of goods in a warehouse for the safety of which the warehouse- man is responsible to the owner {q) ; or of an insurance upon (i) Mansfield, C. J. ,ffo««v.i;oM*)« strmg, L. B. 6 Q. B. D. 244; 39 L. Ass., 1 Burr. 492; Mellish, L. J., J. Q. B. 81 ; -where both ships are in North British Ins. Y. London Ins., Ij. fault, see London Steamship Ins. t. R. 5 C. T>. 583 ; 46 L. J. C. 537. Grampian Co., L. K. 24 Q. B. D. 663 ; (Je) North British Ins. t. London 59 L. J. Q. B. 649. Ins., supra. (o) Commercial Union v. Lister, L. m See Sea Ins. v. Sadden, L. E. E. 9 Ch. 483 ; 43 L. J. C. 601 ; see 13 Q. B. D. 705 ; 53 L. J. Q. B. 252. Darrell v. Tibbitls, L. E. 5 Q. B. D. (?k) Mason v. Sainsbury, 3 Dougl. 560 ; 50 L. J. Q. B. 33. 61 ; Simpson v. Thomson, L. E. 3 Ap. (;;) Darrell v. Tibbitts, supra. Ca. 279 ; Castellani -v. Preston, 'L.'R. {q) &ee North British Ins. v. London 11 Q. B. D. 380 ; 62 L. J. Q. B. 366. and Globe Ins., L. E. 5 C. D. 576 ; 46 (m) Yates r. Whyte, 4 Bing. N. C. L. J. 0. 537. 272 ; North Mngland Ins. v. Arm- 64- CONTRACTS IMPLIED IN LAW. Paet I. goods lost at sea for which the shipowner is liable (r) ; or oi an insurance of cargo which is lost hy jettison for which there is a claim for general average (s) ; in all which cases the insurer having paid the insured is considered as having paid, the money for the party primarily liable and may recover it, through the remedy of the insured, as money paid for his use. — The insurer has the same remedy as the insured, and if the latter can make no claim neither can the former : as where the ship insured was lost by a collision at sea with another ship of the same owner, it was held that the underwriter, who had paid for a total loss, had no claim, because the insured could have no action against himself (t). So where property insured against fire was wilfully burnt by the wife of the insured, it was held that the insurer had no remedy against the wife (?() . Money Where the insured himself has recovered the loss from the rGCcivGQ. by iusured party primarily liable, the insurer is thereby discharged ; and oiinsui 1. y j^^ j^^^ already paid the insured for the loss before such xecovery, he may claim a return of the amount as being money received for his use {.f). The principle includes all rights of the insured, whether arising from property, contract or from wrong, and whether satisfied or not, that serve to diminish the loss insured : as where the owner of a house, which he had insured, contracted to sell it to a purchaser without refer- ence to the insurance, retaining a lien for the purchase- money ; and the house was afterwards damaged by fire, and the insurance paid ; upon payment of the purchase-money in full, it was held that the insurer was entitled to claim the benefit of the payment in discharge of the insui-ance (i/). But where insurance was made upon ship and cargo against war risks, and loss paid under it ; and afterwards by treaty (>•) Wilson T. Eaffaloviclt, L. E. 7 («) Midland Ins. Cu.r. Smit>i L R Q. B. D. 553 ; Dufourcet v. llishop, 6 Q. B. D. 561 ; 50 L J 6 B 329' L. R. 18 Q. B. D. 373 ; 56 L. J. Q. {x) Tatos v. TTImte, 4 Biiu- N c' B. 497. 272 ; Darrell v. Tibhits, L. E?.5 q' b' (s) Diclcinson v. Jardhir, L. R. 3 C. D. 560 ; 50 L. J. Q. B. 33 ■ Diifoum'c P. 639 ; 37 L. J. C. P. 321. v. Sisliop. supra; The Napier 1, R [t) Simpson T. Thomson, L. R. 3 6 Ad. 76 ; 49 L. J. Ad. 23. ' ' ' Ap. Ca. 279. (ij) Castellani v. Preston, supra. DEBTS FOR MONEY PAID. 65 with a foreign governraent a sum of money was appropriated Ch. i. to indemnify such losses so far as they were not insured ; it '■ — 1- was held that the insurer who had paid for a total loss had no claim against a sum paid out of the fund to the insured, because it was a pure gift (a). An underwriter on a ship has no claim to money received by the shipowner from an insur- ance upon the fi-eight, because the subjects of insurance are distinct, and the payment upon loss of freight does not dimiaish the loss on the ship {b) . General average in maritime law is the contribution from General the several owners of a ship and cargo to the loss of a portion which is sacrificed in time of danger for the safety of the whole, as in the case of cargo jettisoned. The person upon whom the sacrifice falls is entitled to call upon the others whose property is saved for a general average contri- bution, adjusted according to value ; which he may recover in * an action at common law for money paid (c) . And it is said, the principle of general average, derived from the mari- time law, applies to all other cases of voluntary sacrifice for the common benefit (f/). An extraordinary expenditure incurred in saving the whole is as much a sacrifice as if goods or money's worth were thrown away (e). Goods, such as specie, which on account of their intrinsic value have been removed from a ship on approach of danger for their own safety and not for the common safety of all, do not contribute to the general average (/). The shipowner has a lien for the general average upon the whole cargo ; and it is his duty to (a) Burnandr. Shodoeanachi, L. K. («) Blaokbiim, J., Kempy. Salli- 7 Ap. Ca. 333. day, 6 B. & S. 746 ; 34 L. J. Q. B. (4) Sea Ins. v. Badden, L. K. 13 242. Q B D. 706; 53 L. J. Q. B. 252. (/) Soyal Mail Co. v. Sio Sank, See Sickie v. Rhodocanachi, 4 H. & L. B. 19 Q. B. D. 362 ; 57 L. J. N. 455 ; 28 L. J. Ex. 273. Q. B. 31. See further as to general U) Birkley t. Fresgrave, 1 East, average, Atticood v. Sellar, L. R. 6 220; Rmjal Mail Co. v. Sio Bank, Q. B. D. 289; 49 L. J. Q. B. 515; L B 19 Q. B. D. 362 ; 57 L. J. Wright v. Marwood, L. B. 7 Q. B. Q. B, 31 ; Strang v. Scott, L. B. 14 D. 62 ; 50 L. J. Q. B. 643 ; Burton Ap. Ca. 601 ; 59 L. J. P. 0. 1. v. English, L. B. 12 Q. B. D. 218 ; (dj Ld Blackburn, Anderson v. 52 L. J. Q. B. 390 ; Seendsen v. Ocean Co., L. B. 10 H. L. 114 ; 54 Walhce, L. E. 10 Ap. Ca. 404 ; 54 L. J. Q, B. 192. L. J- Q- B. 497. 66 CONTRACTS IMPLIED IN LAW. Paet I. enforce it by having an adjustment made of the contribution and collecting the amount, or taking reasonable security for it before delivering the goods to the consignees {g). mdS^"* Where a person has been compelled to pay the debt of restraint of another by a legal restraint of his goods for the debt, he may recover the amount as a debt for money paid (A) : as where the owner of a cargo is compelled to pay bottomry bonds, by which ship and cargo are hypothecated by the master for necessary repairs of the ship ; he may recover the sum paid from the shipowner, who is bound to deliver the cargo on payment of freight only («) . Where the mortgagee of a ship on taking possession was compelled to discharge a maritime lien for wages of crew due by a former possessor, he was held entitled to recover the amount from the latter as money paid for his use (/.;) . Distress of TJpon this principle, where an under-tenant pays the rent rent or due to the Superior landlord under a distress or threatened of another, distress upon his goods, he may recover the amount from his immediate landlord as a debt for money paid to his use ; or he may treat the payment as made by the authority of the latter and deduct the amount from the rent due or accruing due to him (/). So aU. other charges upon the land against which the landlord is bound to protect the tenant, if paid by the tenant, give him a claim against his landlord as for money paid to his use ; and may be treated as actual pay- ment of rent ; as the charge of repairing a bridge ratione tenurce {m) ; or a charge under a local drainage Act («) . (g) Crooks v. Allan, L. R. 5 Q. B. (k) Johnsmi v. Soijal Mail Co., L. D. 38 ; 49 L. J. Q. B. 201 ; Suih v. R. 3 C. P. 38 ; 37 L. J. C. P. 33 ; Lamport, L. R. 16 Q. B. D. 735 ; 55 see The Orchis, supra. L. J. Q. B. 239 ; Strang t. Seott, L. (I) Jones y. Morris, 3 Ex. 742 ; see R. 14 Ap. Ca. 601 ; 59 L. J. P. C. 1. Graham v. Allsopp, 3 Ex. 198 ; John- {h) Per our. Edmunds v. Walling- son v. Skafte, L. R. 4 Q. B. 705 ; 38 ford, L. R. 14 Q. B. D. 814 ; The L. J. Q. B. 318. See the Act to Orchis, L. R. 15 Adm. 38 ; 59 L. J. protect the goods of lodgers against Adm. 31. distress, 34 & 35 Vict. o. 79. (i) Duncan r. Benson, 3 Ex. 644; («;,) Saker v. Greenhill, 3 Q. B. see Ilot/d v. Ouibert, L. R. 1 Q. B. 148. 115 ; 33 L. J. Q. B. 241. (n) Dawson v. Linton, 5 B. & Aid. 521. DEBTS FOR MONEY PAID. 67 Some taxes charged upon land by statutory provision, as Ch. i. the income tax and land tax, when paid by the tenant, must -^^ — ~ be deducted from the next payment of rent, and are not otherwise recoverable from the landlord, except by special agreement (o).— The Tithe Commutation Act, 6 & 7 Will. 4, D;istres3 0. 71, s. 80, expressly entitled every tenant or occupier who rent- should pay any such rent-charge to deduct the amount "^^^s^- thereof from the rent payable by him to his landlord ; but the tenant might waive this statutory right by agreement in his lease (p) . Under the above Act the only remedy of the tithe-owner was by distress or by occupation of the land; and if the owner of the goods was compelled to pay to redeem his goods from a distress, he had no claim against his land- lord for the money paid, because it did not discharge the latter from any liability ; the owner of the goods, if also tenant, might deduct the payment from his rent; if not tenant, he had no remedy {q). By the Tithe Act, 1891 (54 & 55 Yict. c. 8), tithe rent-charge is made payable by the owner of the land, and the occupier is discharged from all liability for the rent-charge as such. Where the owner of goods leaves them upon the premises Distress of of another at his request and for his benefit, as in the case of f remises of a carriage left with a carriage builder in the way of his trade, ^'i°t^'^'^- and they are there distrained for rent, which the owner is obliged to pay to recover his goods, he can claim the amount as money paid for the use of the tenant (r). But if the owner of goods leaves them upon the premises of another voluntarily and for his own benefit only, and they are there distrained for rent, he is considered as having taken upon himself the risk of distress, and he can make no claim for the amount (s). (o) Gumming v. Sedhorough, 15 M. Willoughby v. Willoughby, i Q. B. & W. 438 ; Lamb v. Brewster, L. E. 687. i Q. B. D. 607 ; 48 L. 3. Q. B. 421. (»•) Exall v. Partridge, 8 T. R. 308. [p) Jeffrey v. Neale, L. B. 6 C. P. (s) England v. Marsden, L. K. 1 0. 240 ; 40 L. J. C. P. 191. P. 529 ; 35 L. J. 0. P. 259 ; but see (j) Griffenhoofe t. Baubm, 5 E. & Edmunds v. Wallingford, L. B. 14 Q. B. 746 ; 25 L. J. Q. B. 237. See B. D. 816. 6 & 7 Will. 4, c. 71, s. 67 ; and see f2 68 CONTRACTS IMPLIED IN LAW. another. Paei I. A voluntary payment of the debt of another, without Voluntary request, and under no legal liability or compulsion, gives no thJS*of claim for the money paid against the person whose debt is discharged. " By the law of this country, difEering, it is said, in that respect from the civil law, nobody can make himself the creditor of another by paying that other's debt ♦ against his will or without his consent ; that is expressed by the common formula of the claim for money paid for the defendant's use, at his request. That is the general rule ; but it is subject to this modification, that money paid to discharge the debt of another cannot be recovered unless it was paid at his request, or under comjmlsion, in respect of a liability imposed upon that other "(i!). Accordingly, where a person has voluntarily paid the premiums necessary to keep up a policy of insurance, without having any request, contract, duty or interest to do so, he can make no claim for the money paid against the owner who takes the benefit of it ; nor does he acquire any lien upon the policy for the money paid {u). "Where a tenant, having paid the property tax assessed on his tenement, paid his landlord the rent in full without deducting the tax, it was held to be a voluntary payment as regards the tax, not recoverable as a debt for money paid (x). Where a party to a bill of exchange who is discharged from liability by default of notice of dishonour pays the bill, it is a voluntary payment which he cannot recover agaiast the party primarily liable (y). And a payment made by a person under a contract which could not be charged against him for want of evidence to satisfy the Statute of Frauds, would, it seems, be considered as voluntary for this purpose (s). A debt cannot be charged agaiast a person for money paid Payments in dis- [t) Fer cur. Johnson v. Moyal Mail Go., L. R. 3 C. P. 43 ; 37 L. J. C. P. 48 ; Bates v. Toximley, 2 Ex. 164 ; Thesiger, L. J., Mxp. Bishop, L. R. 15 C. D. 417 ; 60 L. J. C. 18 ; SUigh T. Sleigh, 5 Ex. 514 ; ante, p. 58. (m) Re Leslie, L. E. 23 C. D. 652 ; 62 L. J. 0. 764 ; Falclce v. Scottish Imperial Ins. ,11. R. 34 C. D. 234 ; 56 L. J. C. 707 ; TTinchelsea's Trusts, L. E. 39 C. D. 168. {x) Gumming r. Bedhorough, 15 M. & W. 438 ; see ante, p. 67. (y) Skigh v. Sleigh, supra. (a) See Simpson v. Benton, 2 C. & M. 430; Baule v. Gun?!, 4 Bing. N. C. 446 ; Glover v. Sackett, 2 H. & N. 487 ; 26 L. J. Ex. 416 ; Re Rownson, L. E. 29 0. D. 358 ; 54 L. J. C. 960. DEBTS FOR MONEY PAID. 69 on aocount of a mere moral obligation or duty on his part, Ch. I. which does not discharge him from a legal liability ; unless ^°'^' paid at his express request (a) . If there is a request in fact, ^^^^i °* "it is wholly immaterial whether the money is paid in dis- obligation, charge of a debt due, or as a loan or gift ; on which two latter suppositions the defendant is relieved from no liability by the payment. The request to pay and the payment according to it constitute the debt"(&). — Nor can a debt be Pavment charged against a person as an implied debt for money paid express where there is an express contract between the parties ; for "'°'^*'^*°*- the liability is then chargeable only according to the con- tract, which excludes any implied debt independent of the contract. But such contract may operate in its terms as a request in fact to pay the money, and a claim may then be supported, in point of form, as a debt for money paid accord- ing to the request (c). The implied debt for money paid may arise from trans- Trans- actions which are equivalent to the payment of money; as equivalent where goods are taken in execution for debt, or are taken in pa^^nf distress for rent and sold to pay the sum due ; there being no distinction for this purpose between money paid by the produce of goods sold and money paid to prevent a sale (d) . But where the plaintiff has only given security for money, as a bill, bond, or covenant, he cannot charge the defendant for money paid to his use until the security has been paid (e) . (a) EUenborough, G. J., AtJcins y. v. Camphell, 8 C. B. 541; and see Jla7zweli, 2 East, 506 ; see Luhhock v. ante^ pp. 38, 55. Tribe, 3 M. & W. 607. {d) Soclgers v. Maw, 15 M. & "W. [b] Per cur. Briitain v. Lloyd, 14 444. M. & W. 773 ; Pawle v. Gimn, 4 (e) Taylor v. Siggins, 3 East, 169 ; Bing. N. 0. 445. Maxwell v. Jameson, 2 B. & Aid. 51 ; («) Spencer v. Parry, 3 A. & E. Poioer t. Butcher, 10 B. & C. 329. 331 ; Lubbock v. Tribe, supra; Leiois 70 CONTRACTS IMPLIED IN LAW. Paet I. Debts for money re- ceived to the use of another. § 2. Debts for Money Received. pAau Debts for money received to the use of another '0 Money obtained by wrong or fraud — following money obtained wrongfully '1 Money obtained by the wrongful conversion of goods — waiver of wrong— following goods obtained wrongfully.. 73 Money obtained by compulsion — duress of person and of property — undue influence '^ Money obtained by compulsion of legal process — distress . . 79 Money extorted for performance of legal duty — excessive and illegal fees and charges 80 Money paid voluntarily — for illegal consideration 82 Money paid in mistake of fact — mistake of law — mistake of court 83 Money paidfor consideration whichfails — subsequent failure of consideration — partial failure of consideration — appor- tionment of consideration 86 Money received by agent from his principal — money re- ceived by agent for a principal — money received by a stakeholder — money received by trustee — by executor . . 92 Transactions equivalent to receiving money 96 Where money has been received by a person under cir- cumstances or ujion occasions, which require, upon priaciples of justice and equity, that it should be paid over to another, a debt is implied in law to that effect independently of agreement. The debt implied was technically charged in pleading at common law as payable "for money received by the defendant for the use of the plaintiff." The advantages of this technical form of claim are : " that the plaintiff need not state the special circumstances from which he concludes that, ex cequo et bono, the money received by the defendant ought to be deemed as belonging to him; he may claim generally " that the money was received to his use," and make out his case at the trial. This is equally beneficial to the defendant ; it is the most favoui'able way in which he can be sued. He can be liable no further than the money he has received ; and against that he may go into every equit- able defence upon the general issue ; he may claim every equitable allowance ; in short, he may defend himself by everything which shows that the plaintiff, ex cequo d bono, is DEBTS FOK MONEY KECEIVED. 71 not entitled to the whole of his demand, or to any part of Ch. i. it"(/). This general mode of pleading is now suhjeot to '■ — - the rules of the Judicature Act, which require that " every pleading shall contain a statement in a summary form of the material facts on which the party pleading relies" (g). — Contracts arising from agreement may also result in a receiving of money to the use of another ; as in the case of an agent in the course of his agency receiving money to be accounted for to his principal. Where a person has been wrongfully or fraudulently de- Money ob- prived of the possession of money, he has a remedy by action wrong or for the specific wrong or fraud, or he may in general waive *''^"'i- the wrong, and claim the sum received by the wrong-doer as a debt. — Money feloniously stolen may be claimed as Money a debt from the thief; the owner being entitled "either to ftoiet?'''^'' bring trover or trespass for taking the particular coin, or to waive the tort and sue for money had and received " (A) . In cases of felony there is a rule of law, " that no action can be maintained for a civil injury resulting to the plaintiff from a felonious act of the defendant, until pubho justice has been vindicated by a prosecution of the criminal" (*'). But the objection under this rule applies only to actions brought by the person directly injured by the felonious act, whose duty it is to prosecute, against the criminal himself {k) ; and the objection cannot be taken by pleading, or upon the evi- dence at the trial, but only by an application to the court to stay the proceedings (/) . On conviction of felony the goods of the felon vested in the Crown by forfeiture at common (/) Mansfield, C. J., Moses v. L. B. 6 Q. B. D. 561 ; 50 L. J. Q. B. Macferlan, 2 Burr. 1010; Owen v. 329. Chains, 6 0. B. 115. [Ic) White v. Spettigue, 13 M. & W. {g) OrderXIX.j.-. 4;seeffHte, p. 38. 603; Osborn t. Gilleit, L. R. 8 Ex. (A) Parke, B., Neate t. Harding, 88 ; 42 L. J. Ex. 53 ; Ex p. Ball, Jj. 6 Ex. 351 ; per cur. Samily v. Trott, E. 10 C. D. 667 ; 48 L. J. B. 67 ; 1 Cowp. 376 ; Powell v. Hees, 7 A. & Applehj v. Franklin, supra. E. 426 ; Fhillips v. Somfray, L. E. [I) JFells v. Airahams, L. E. 7 Q. 44 CD. 694; 59 L. J. C. 547; (1892) B. 552; 41 L. J. Q. B. 306 ; Foope W. N. 4. v. B'Avigdor, L. E. 10 Q. B. D. 412 ; H) Wills, J., Appleby v. FranMin, see Ex p. Turquand, L. E. 9 0. D. L. E. 17 Q. B. D. 95 ; 55 L. J. Q. B. 704 ; 48 L. J. B. 67 ; Ex p. Fall, 129 ; see Midland Ins. Co. v. Smith, 72 CONTRACTS IMPLIED IN LAW. Fam I. law ; but tlie debt for the money stolen was held to be a sufficient consideration to support a previous assignment oi Money ob- property to secure it (m). — Where a person has been induced. fakepre'^ to pay monoy by false pretences, he may recover it back in tences. ^^ action for money received to his use («). If he paid the money knowing the pretence to be false, the receiver cannot be convicted of the crime of obtaining money under false pretences ; and it is said to be doubtful whether the money XjQder a gould be recovered back in a civil action (o). — Where a person fraudulent ^ • i i ' A A i- contract, has paid money under a contract which he was inducea to make by fraud, he may in general avoid the contract and recover the money as a debt for money received to his use ; but whilst the contract remains open he cannot so claim the money (p). Money Upon like principles where a person has wrongfully ob- wrongfuily tained the money of another from a third party, knowing at thiS^ the time to whom it belongs, the rightful owner may recover party. -^ ^g ^ ^^-^j. |qj, j^gney received to his use {q) : as where a person has obtained payment of another person's debts, by fraudulently representing to the debtors that he had autho- rity to collect them (r) ; where a person has knowiugly re- ceived partnership money in payment of the private debt to him of one of the partners (s) ; where a person has collected rents by falsely assuming to act as agent for the landlord ; but if the rents were demanded under an adverse title with- out any assumption of agency, the sum cannot be claimed as a debt, until the claimant has established his title by proper proceedings (t) . And where rents have been received under a mistaken title, they may be recovered as money (ot) Ohowne v. Btiyhs, 31 Beav. 351 ; Mills, 26 L. J. M. C. SO. 31 L. J. C. 757 ; Flower v. Sadler, L. (jo) See ante, p. 44 ; post, p. 322. B. 10 Q. B. D. 672. See the Act for (j) Zitt v. Marfmdale, 18 C. B. the ahoKtion of forfeiture for felony, 314. 33 & 34 Vict. 0. 23. (r) Andrews v. Sawley, 26 L. J. («) Edmeads v. Newman, 1 B. & C. Ex. 323. 418; Martin v. Morgan, 1 B. & B. (s) Kendal r. JFbof?, L. R. 6 Ex D 289 ; see Eoli v. Ely, 1 E. & B. 795 ; 243 ; 39 L. J. Ex. 167. Mamshire v. Bolton, L. R. 8 Eq. 294 ; [t] Clarance v. Marshall, 2 C. & M. 38 L. J. C. 594; Elahe i. Albion 495; Marshall y. Hopkins, 15 East" Ass., L. R. 4 C. P. D. 94 ; 48 L. J. 309 ; Lmdon v. Sooper, 1 Cowp. 414 ; C. P. 169. see Talbot v. Shrewsbury, L. R. 14 (0) Bramwell, B., The Queen v. Eq. 603, DEBTS FOR MONEY RECEIVED. 73 received («) . Where a person has wrongfully taken the fees Ch. i. of an office of which another person is the rightful holder, the latter may recover the amount as money received to his J^i^^' use («). But he cannot in right of his office recover gratuities taking fees given to the person actually performing the duties of the office («/). And it seems that a mere claimant to the office, not duly invested, cannot recover the fees in this form, but must resort to his specific remedy to recover the office by mandamus or otherwise (s). But money wrongfully obtained and paid away, by reason Following of its quality of currency, cannot be followed and claimed wrongfully against a person who has received it bond fide in payment of obtained a debt, or upon a valid consideration or contract, or, it seems, away. by way of gift ; unless he received it with notice that it was wrongfully obtained («). If received by a person merely as agent or bailee for safe keeping, he may be charged with it so long as it remains in his hands ; or if he has paid it away after having notice of the claim, {b). Money paid to a banker is received upon a contract of loan, and the banker is liable only to the customer from whom he received the money bona fide as his own (c) . Where a person has wrongfully obtained goods and eon- Money ob- verted them into money, the owner of the goods may waive -songful the wrong and recover the proceeds in an action for money of'SioS"'' received to his use. " If a man's goods are taken by an act of trespass, and are subsequently sold by the trespasser and turned into money, he may maintain trespass for the forcible injury; or, waiving the force, he may maintain trover for the wrong ; or, waiving the tort altogether, he may sue for (m) Eichnan t. XTpsall, L. E. 4 C. 260 ; Howard v. TVood, Sir T. Jonea, D. 144 ; 46 L. J. C. 245. 126 ; 2 Leo. 245 ; Wildes v. Russell, (x) Spry T. Emperor, 6 M. & W. L. E. 1 C. P. 722 ; 35 L. J. M. 241. 639; King r. Alston, 12 Q. B. 971 ; {a) Fercur. Scottv. Surman,Wiiles, Pindar v. Barr, 4 E. & B. 105 ; 24 404 ; Fosters. Green, 7 H. & N. 881 ; li. J. Q. B. 30 ; Aulton v. liaberts, 2 31 L. J. Ex. 159 ; see Calland v. H. & N. 432 ; 26 L. J. Ex. 380. Loyd, 6 M. & W. 26 ; Exp. Wolver- (y) Boyter v. Eodsworth, 6 T. E. hampton Bank, L. E. 14 Q. B. D. 34. 681. (*) Atlee\. Backhouse, 3 M. & W. (z) See Fowel v. Milbank, 1 T. E. 633 ; and see post, p. 94. 399 {d) ; Arris v. Stukeley, 2 Mod. (c) See Calland v. I^oyd, supra. 74 CONTRACTS IMPLIED IN LAW. PaetI. money had and received" {d). So where bills of exchange or other securities are wrongfully converted into money, the owner may waive the wrong and claim the proceeds as money received to his use (e) . Accordingly, where one of the part- ners in a firm of hankers sold the stock of a customer under a forged power of attorney and received the price to the account of the firm, it was held that the owner of the stock might recover the proceeds as a debt for money received by the firm for his use (/). Where goods are seized and sold under a writ of execution which are not the property of the execution debtor, the owner of the goods may recover the proceeds of the sale from the sheriff, or his oflBcer, or the execution creditor, as the case may be, as money received to his use {g). — Where the goods of a bankrupt have been assigned after an act of bankruptcy, or by way of fraudulent preference, the trustee in bankruptcy may treat the trans- action as void and recover the goods or their value ; or, if the goods have been sold, he may claim the proceeds as money received to his use {h). So if the goods of a bankrupt have been seized and sold in execution, after notice of an act of Proceeds bankruptcy (/). — Upon the same principle, if trees have been wrongfully vTrongfuUy cut down and sold, the owner may waive the •wrong and claim the proceeds of the timber as a debt(y). Where coal has been wrongfully severed and sold by the owner of an adjoining mine, the owner of the coal may claim the proceeds as money received to his use ; but by waiving the wrong he is bound to allow a deduction fi'om the price for (d) Per cur. Eoclgers v. Maw, 15 M. (A) Marks v. Feldmaii, L. E. 4 Q B few. 448 ; Parke, B., JSfeater. Sard- 481 ; 39 L. J. Q. B. 10 ; Seilhit y. inff, Ex. 351 ; lanrine v. Borrell, 2 Ner'iU, L. E,. 5 C. P. 478 ; 39 L. j! Ld. Raym. 1216; but see ff»fe, p. 44. C. P. 245; Smith v. Baker L. E s' («) Buchanan v. Faullaij, 9 B. & C. C. P. 350 ; 42 L. J C P ' 155 ■ see 738. 46 & 47 Vict. c. 62, ss. '47,' 48 ' (/) StoneY. Marsh, 6 B. & C. 551 ; (t) 46 & 47 Vict. c. 52, ss. 45, 46 Marsh v. Keating, 1 Bing. N. C. 198. See Edwards y. Scarsbrook, 3 B '& s" (g) Snowdony. Davis, 1 Taunt. 359 ; 280 ; 32 L. J. Q. B. 45 ; Ei- p. Mocke' Omjhtony. Scppings, 1 B. & Ad. 241 ; L. E,. 6 Ch. 795 ; 40 L. J. B. 70 • ralpy y. Manleij, 1 0. B. 594; see Eransy. JSallam, !,.'&.& Q.'s'.Tli'- AUanson v. Atkinson, 1 M. & S. 583 ; 40 L. J. Q. B. 229 ; Btdler y. TTear- Morris y. Salbcrg, L. R. 22 Q. B. D. ing, L. R. 17 Q. B.'d. 182. 614 ; 58 L. J. Q. B. 275. [j) Sherrington's case, Saville, 40 cited 1 Cowp. 376. ' DEBTS FOR MONEY RECEIVED. ~ 75 the actual costs of raising the coal (k). Where fixtures have Ch. I. been wrongfully severed and sold, the owner may recover the ■ '■ — - proceeds as money received for his use (l). And the same principle seems to apply to the proceeds of a sale of land or real property obtained from the owner by wrong or fraud («*). If the owner of the property that has been wrongfully Waiver of sold accepts payment of the proceeds of the sale, or any part ^ ^™°s- thereof, from the wrong-doer, he so far waives the wrong and adopts the sale that he cannot afterwards bring an action for damages (w) ; nor, after recovering the proceeds of the sale, can he claim for the value of the goods in excess of that amount (o). A mere demand of the proceeds of sale which is refused does not waive the wrong ; and the owner upon the refusal may bring an action for damages or for the spe- cific recovery of the goods (p). The waiver of the wrong by taking the proceeds of the wrongful sale of goods extends only to the claim for damages, and has not the further effect of a precedent consent : as where the master of a ship upon the ship being wrecked sold the cargo instead of forwarding it to its destination, it was held that the owner of the cargo might claim the proceeds of the sale without any deduction for freight pro rata, for which he would have made himself liable by consenting to the sale (q). Property in goods may be followed and claimed from a Following receiver, though he received possession without notice of a wrongfully defect of title ; and if the goods have been converted by him oiitiimed. the rightful owner may claim the proceeds as money received to his use (r) : as where an agent holding a postal order for his priacipal paid it in to his own account at his banker, who converted it into money with which he credited the account. (k) Fowell V. Sees, 7 A. & E. 426 He United Merthyr Co., L. B. 15 Eq. 46 ; J'egon v. Vivian, L. R. 6 Ch. 742 40 L. J. C. 389 ; Phillips v. Eomfray. L. B. 6 Ch. 770 ; 59 L. J. C. 547 (n) Brewer v. Sparrow, 7 B. & C. 310 ; Lythgoe v. Vernon, 5 H. & N. 180 ; 29 L. J. Ex. 164 ; see Wihon t. T. Foulter, 2 Strange, 859 ; Burn v. Morris, 2 C. & M. 679. Ashton V. Stock, L. E. 6 C. D. 719. (o) Smith v. Baker, L. B. 8 0. P. [1) Coleridge, J., -OaZtowT. Whittem, 350 ; 42 L. J. C. P. 155. 3 Q. B. 966. [p) Valpy v. Sanders, 5 0. B. 886. (m) Malins, V.-C, Morgan v. El- (q) Stmterv. Frinsep,Wlii!ist,S1S; ford, L. B. 4 C. D. 352. see ante, p. 51. (r) Glyn v. Baker, 13 East, 609, 76 CONTRACTS IMPLIED IN LAW. Part I. it was hold that the principal, as being the rightful owner of the order, might recover the proceeds from the banker («). Where a bill of exchange payable to order was stolen and transferred with a forged indorsement to a banker who pre- sented it and received payment ; it was held that the right- ful owner might recover the money from the banker as received to his use, because the forged indorsement did not Sale in transfer any property in the bill {t). — Exception is made of orertf the sale of goods in market overt in the usual course of trade, which at common law gives a good title to a buyer who takes them bona fide and without notice of any defect (m). By the statute 24 & 25 Vict. c. 96, s. 100, the property in stolen goods sold in market overt is restored to the original owner upon conviction of the thief ; but the restored title dates only from the time of the conviction, and does not entitle the owner to charge intermediate purchasers {v). — Negotiable Exception is also made of negotiable instruments, as bills ments. of exchange and promissory notes, which by the custom of merchants presumptively import a good title in the holder during the currency of the instrument («). But an overdue bill ceases to be negotiable as conferring a good title, and " no person who takes it can acquire or give a better title than that which the person from whom he took it had"(y). A banker's cheque payable on demand is not considered as overdue until after a reasonable time for presentment has elapsed, which depends upon the circumstances of the case as giving cause for suspicion and inquiry ; and when the right- (s) Fine Art Soc. y. Union Bank, T>. 109 ; 51 L. J. Q. B. 243 ; and see L. R. 17 Q. B. D. 705 ; 56 L. J. Q. Chichestm- v. Hill, 52 L. J. Q. B. 160. E. 70. ix) Miller v. Mace, 1 Burr. 452 ; 1 (i) Arnold T. GJieque Banh, L.E.I Smith's L. C. 9tli ed. 491 ; Goodwin r C. P. D. 578 ; 46 L. J. C. P. 562 ; Eobarts, L. B. 1 Ap. Ca. 476 ; 45 L. see Bobhett v. Pinkett, L. E. 1 Ex. J. Ex. 748 ; London S; Co. Bank v. D. 368; 45 L. J. Ex. 555; Patent London ^ Plate Bk.,lj. E. 21 Q B Gun Cotton Co. Y. ^Ti^son, 49 L. J. 0. D. 535; 57 L. J. Q. B. 601; see P. 713 ; but see Bank of England v. Sheffield v. Land. J. S. Bank L R Tagliam, (1891) Ap. Oa. 107 ; 60 L. 13 Ap. Ca. 333 ; 67 L. J. C. 986 ; J. Q. B. 145. Williams v. Colonial Bank, L. E. 38 (u) See Bargrcave v., S^ink, (1892) C. D. 383 ; 57 L. J. C. 826. 1 Q. B. 26. (y) The BiUs of Exchange Act, (v) Lindsatj v. Cundy, L. E. 1 Q. 1883, 45 & 46 Vict. c. 61, s 36 • B. D. 348; 46 L. J. Q. B. 381; Byles onBUls, 15thed. 190 ; seems/ Walker v. Matthews, L. E. 8 Q. B. p. 1018. DEBTS FOE MONEY RECEIVED. 77 ful owner of a clieque has lost it or has been wrongfully Ch. i. deprived of it, his right to recover the cheque or its proceeds '- — - from the holder depends upon whether the latter took it before or after such reasonable time had elapsed (z) . Money wrongfully obtained by means of unlawful com- Money ot- pulsion or extortion of any kind may be recovered back as a compui-'' debt for money received : as money extorted by duress of the ^'°°- Tj nT PRR or person, that is to say, by imprisonment, or threats of im- the person, prisonment or of personal injury. Where a person was arrested under a writ of capias directed against another person, and was obliged to pay the sum indorsed upon the writ in order to obtain his release ; it was held that he might recover it back from the sheriff as money received to his use, though it had been paid into court and paid out to the execution creditor (a). — Money extorted by duress of goods Duress of or other property, that is, by withholding the possession of ^^"^^'^ ^' property wrongfully taken or detained, or by threatening injury to property, may be thus recovered back (b) ; as where goods are detained under an unfounded or excessive claim of lien, which is paid to redeem them (c) ; and the owner cannot obtain an order for delivery up of goods detained under a claim of lien, under Order L. r. 8, without paying into court the whole amount claimed, though it exceeds the value of the goods (rf). — Where the solicitor of a mortgagee threatened to sell the mortgaged property unless the mortgagor would pay certain charges in excess of what was properly due, the mortgagor having paid the sum demanded in order to prevent the sale, was held entitled to recover back the excess (e). So where a solicitor, who had acted for both parties in effecting («) Down V. Sailing, 4 B. & C. 330 MothscMld V. Corney, 9 B. & C. 388 London ^ Co. Bank v. Groome, L. R, 8 Q. B. D. 288 ; 51 L. J. Q. B. 224 [a) Be Mesnil v. Dalcin, L. E.. 3 Q, Manley, 1 C. B. 594. (c) Astley t. Reynolds, Strange, 915 ; HoUis v. Claridge, i Taunt. 807 ; Fratt v. rhard, 5 B. & Ad. 808. B. 18 ; 37 L. J. Q. B. 42 ; and see {d) Oeh-uder Naf t. FMon, L. R. post, p. 361. 25 Q. B. D. 13 ; 59 L. J. Q. B. 371 . (4) Bayley, J., Shaw v. Woodcock, [e) Close t. Fhipps, 7 M. & G. 686. 7 B. & C. 84 ; Parke, B., Atlee v. See Fraser v. Pendlehiry, 31 L. J. C. Backhouse, 3 M. & "W. 660 ; Valpy v. P. 1. 78 CONTRACTS IMPLIED IN LAW. Paet I. Money ob- tained by undue influence. a mortgage, detained, the deeds from the mortgagee upon a claim of lien for charges against the mortgagor (/) ; and where after paying ofi a mortgage [for the mortgagor,^ he detained the deeds upon a claim of lien for charges against the mortgagee (^). The lien of a solicitor extends only to his taxable costs, charges and expenses, and not to advances on loan or for other purposes ; and by taking a security for his costs and charges, he presumptively abandons his lien (h). — But money paid in compromise of a bona fide claim of right to detain the goods, and not merely to release them from unlawful detention cannot be recovered back ; it is then paid under a valid contract for a good consideration {i), and duress of goods or property, not affecting the person, is not sufficient to entitle a person to avoid a contract upon the ground that he was induced to enter into the contract by such compulsion; duress of the person only being sufficient compulsion in law to give the right of avoiding a contract induced by it (/) . Money obtained by the moral duress of undue influence may be recovered back ; and in certain personal relations there is presumed in law to exist an influence, which, if exer- cised to obtain a gift or benefit, vitiates the transaction and renders it voidable ; unless the recipient can rebut the pre- sumption of influence (Ji) : as in the case of a gift from a child to his parent, or from a ward to his guardian (/) ; a gift from a patient to his physician or medical adviser {m) ; a gift to a spiritual adviser or director (w) ; a gift from a debtor to a creditor to induce him to consent to a composition with the (/) Re Snell, L. E. 6 C. D. 105 ; 46 L. J. C. 627 ; Ite Mason and Turner, L. E. 10 C. D. 729 ; 48 L. J. C. 193 ; Exp. Fuller, L. R. 16 C. D. 617 ; 50 L. J. C. 448 ; Be Nicholson, 53 L. J. C. 302 ; see Macfarlane v. Lister, L. E. 37 C. D. 88 ; 57 L. J. C. 92. (g) Wakefield v. Newbon, 6 Q. B. 276 ; Me Llewellin, (1891) 3 Ch. 145 ; 60 L. J. C. 732 ; see Sheffield v. Eden, L. E. IOC. D. 291. (/() Ee Taylor ^ Co., (1891) 1 Ch. 590; 60 L.J. C. 525. (») Atlee V. Backhouse, 3 M. & W. 633. (j) Parke, B., Atlee v. Backhouse, 3 M. & W. 650 ; Skeate v. Beale, H A. & E. 983 ; and see post, p. 351. {k) Eldon, L. C, Gibson v. Jeyes, 6 Ves. 276 ; Cooke t. Lamotte, 15 Beav. 234 ; 21 L. J. C. 371 ; and see post, p. 354. (I) Archer -v. Hudson, 7 Beav. 551; Wright v. Vanderplank, 8 D. M. & G. 133; 25 L.J. C. 753. (»i) Ecnt T. Bennett, 4 M. & Cr. 276 ; Billing v. Southee, 9 Hare, 534 • 21 L. J. C. 472 ; Mitchells. Somfray, L. E. 8 Q. B. D. 587 ; 60 L. J. Q. B. 460. (n) See Allcard r. Skinner, L. E 36 0. D. 145; 66 L. J. C. 1062. DEBTS FOK MONEY RECEIVED. 79 other creditors (o). In the case of solicitors it is a positive Ch. i. rule of law " that while the relation of solicitor and client -^^ — '- subsists the solicitor cannot take a gift from his client" (p). — It is further " competent to a court of equity to take away from third persons the benefit which they have derived from the undue influence of others" (g). And "the relief stands upon a general principle, applying to all the variety of rela- tions in which dominion may he exercised by one person over another " (r) . Money obtained by compulsion of legal process cannot, in Compui- the absence of fraud, be recovered back in an action between legai the same parties so long as the process stands; though 1 * under seal. CONTRACTS UNDER SEAL. 113 " A deed is a ■writing or instrument written upon paper Chap. ii. or parchment, sealed and delivered, to prove and testify the Deed. 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, altered, or corrupted " (c) . The contents of a deed may be written or printed, in ink or in pencil {d). — Signing a deed, though signing. usual, is no part of the formality at common law (vw{z). The condition may be expressly declared, or it may sufficiently appear from the circnmstances attending the delivery (a). Delivery as an escrow may be made whilst the party retains the deed in his own possession, or upon delivery of the possession to a third party, or to the solicitor of the other party to the deed (b) ; but not, it is said, upon delivery of the possession to the other party himself, because mere words of condition will not control the absolute act, of delivery, according to the maxim non quod dictum est, sed quod factum est inspicitnr{c). After a deed has been delivered as (i!) Goddard's case, 2 Co. 4 b; S'all Fym v. Campbell, 6 E. & B. 370 ; 25 V. Cazenove, 4 East, 477. L. J. Q. B. 277 ; post, p. 161. (w) Mall V. Cazenore, supra. (a) Johnson v. Baker, 4 B. & Aid. (x) Jaynes v. Hughes, 10 Ex. 430 ; 440 ; Murray v. Earl Stair, 2 B. & C. 24 L. J. Ex. 115. 82 ; JBoiiker v. Burdekin, 11 M. &W. («/) Wilkinson t. Anglo- CaJifornian 128 ; Gudgen y. Besset, 6 E. & B. 986 ; Co., 18 Q. B. 728 ; 21 L. J. Q. B. 26 L. J. Q. B. 36. 327 ; Exchange Blc. v. Blethen, L. R. (i) Watkins v. Nash, L. R. 20 Eq. 10 Ap Ca. 293 : 64 L. J. P. C. 27. 262. (2) Co. Litt. 36 a ; Shepp. Touch. (c) Co. Litt. 36 a ; Shepp. Touch. p. 58 ; Murray v. Earl Stair, 2 B. & 69 ; SolfordY. Parker, Hob. 246 ; see C. 82 ; Millership v. Brooks, 5 H. & Hudson v. Ecvett, 5 Bing. 387 ; Wat- 's. 797 ; 29 L. J. Ex. 369 ; Kidner kins v. Nash, supra. V. Keith, 15 0. B. N. S. 35. See i2 116 CONTEACTS UNDER SEAL. Paet I. Escrow takes effect from delivery. Execution of deed in blank. an escrow, the fact of possession of it by the other party is presumptive evidence that the condition has been satisfied, and that the delivery is complete (f/).— Upon performance of the condition an escrow becomes effective as a deed from the date of the original delivery; so that if a bond be delivered as an escrow, and before performance of the condition the obligor and obligee die, yet on the performance of the con- dition it becomes an effective bond and charges the assets of the deceased obligor; and so, if a woman before marriage deliver a bond upon condition and afterwards marry, whereby she loses her capacity to contract, and after marriage the condition is performed, the bond is valid and takes effect from the original delivery (e). A deed delivered with a material part of the contents left in blank or omitted is necessarily void ; and it cannot be completed by subsequently filling in the blank, without a re-delivery or what is equivalent to it(/) ; but an acknow- ledgment of the deed after the blanks have been filled up operates as a re-delivery {g) . As a bail bond executed before the condition was fiUed in (A) ; a debenture under the seal of a company issued with a blank for the name of the payee (?) ; a deed covenanting for the delivery up of certain articles " as per schedule annexed," to which no schedule was annexed at the time of execution (/i-) ; a deed of composition expressed to be made with the creditors named in a schedule, to which no schedule was annexed until after execution (/) . — But a deed with blanks may operate so far as the blanks are imma- terial to its operation; as where the date only is left in blank (m) ; and where the blank affects one of several parties only, it may operate as to the others (m). A composition deed signed by a creditor with a blank for the amount of his {d) BarcY. Horton, 5 B. & Ad. 715 ; see Ball v. Bainbridge, 12 Q. B. 699 ; ante, p. 114. («) Graham v. Oraham, 1 Vea. jun. 275 ; Ferryman's case, 5 Co. Si b ; frosetv. Tl'alshe, Bridg-. 61. (/) Shepp. Touch. 54; Perkins, s. 118; Hihblewhite v. M'Morine, 6 M. & W. 200. (ff) Budson V. Scvctt, 5 Bing. 372. {/>) Powell v.Diif, 3 Camp. 181. 21 L. 568. w 36 L. L. R. 130. ('») («) 672. Enthoven v. BoyU, 13 C. B. 373 : J. 0. P. 100. Weeks v. Maillardet, 14 East, Selfm V. Price, L. R. 2 Ex. 189 ; J. Ex. 93 ; see rFood v. Slack, 3 Q. B. 379 ; 37 L. J. Q. B. Adsetts V. Bivcs, 33 Beav. 62. Doe V. Bingham, i B. & Aid. CONTKACTS UNDER SEAL. 117 debt, "was held to operate as a valid release for the amount of Chap. ii. debt due upon the account taken between him and the debtor (o). An assignment to trustees for the benefit of the creditors named in the schedule, to which no schedule was annexed was held to operate effectually as a conveyance to the trustees (^j). A transfer of shares, if transferable by deed only, by a Transfer of deed executed in blank as to the name of the transferee, or wank. the number and description of the shares, is void of effect in conveying the legal title to the shares ; nor can it be made effective by filling up the blanks without a re-delivery, or without an authority to do so under seal (g) ; and the prac- tice of the Stock Exchange to deliver transfers of shares with a blank for the name of the purchaser, to be filled up by the purchasing broker, is not allowed to prevail against the rule of law(r). — But a transferee who fills up the blanks with his own name and procures registration as shareholder becomes liable as such to the company and their creditors (s) ; and a transfer of shares in blank may give an equitable title to registration, according to the terms of the agreement to transfer them, subject to prior equities {t). — If the shares be transferable without a deed a transfer in blank will impliedly authorise the transferee to fill in the blanks for the purpose intended; and where by the articles of the company a transfer of shares may be made by an " instrument in writing," it is not necessary that it should be made by deed ; although the practice of the company has been to require a deed (««) . And in such case it is immaterial as regards the authority (o) Sarrhy v. Wall, 1 B. & Aid. (s) Se Burned' s Banking Co., L. R. 103 ; Fazakerley v. Knight, 6 E. & B. 3 Ch. 105; Re Manchester and Oldham 795 ; 26 L. J. Q,. B. 30. Bank, 64 L. J. C. 926. (») West Y. Steward, 14 M. & W. (t) Societe Generate de Paris v. 47. Walker, L. R. 11 Ap. Ca. 20; 55 (j) Hibblewhite v. 31'Morine, 6 M. L. J. Q. B. 169 ; Colonial Bank v. & W. 200 ; Tat/ler v. Great Indian Cady, L. R. 15 Ap. Ca. 268 ; 60 L. Peninsula My., 4 D. & J. 559; 28 J. C. 131. L. J. C. 709 ; Swan v. Worth British (u) Ma: p. Sargent, L. R. 17 Eq. Australasian Co., 2 H. & C. 176 ; 32 273 ; 43 L. J. C. 425 ; see Marino's L. J. Ex. 273 ; see France t. Clark, case, L. R. 2 Ch. 596 ; 36 L. J. C. Ij. R. 26 C. D. 257 ; 53 L. J. C. 585. 468 ; Be Manchester and Oldham Bank, ()•) TaylerY. Great Indian Peninstda iupra. By., supra. 118 COJiTKACTS UNDEK SEAL. Paet I. and operation of the instrument of transfer, that it is made and sealed in the form of a deed (a;) .—The instrument, though duly filled in, gives only an equitable title to the tifror note ^^^^es, until completed by registration under it (y).— Upon in blank, the same principle the signing and delivery of a negotiable instrument, as a stamped bill of exchange or promissory note, •with a blank for the sum payable, imports an authority to the party to whom it is delivered to fill it up and issue it with any sum warranted by the stamp (z) ; and though it be filled up by any other person, and without authority, it will be valid in the hands of a bona fide holder for value {a). Accei^t- ance of contract under seal. Dis- clauner. The acceptance of a contract under seal is presumed, if nothing appear to the contrary ; and the deed is operative and binding from the time of delivery, though the other party had then no notice of it {b). The presumption of acceptance is founded on the principle that a person will accept that which is for his benefit ; but with conveyances of property it is extended to such as contain onerous charges of covenants or liabilities (c) ; and " a man may be bound by the covenants of a deed in which he is described as a party, though he does not execute it, if he assent to it and take a benefit under it"(rf). — A party may disclaim the benefit of a deed ; and such disclaimer may be made by deed, or by any words or acts that sufiiciently show an intention to disclaim (e). (.t) Ortigosa v. JBrown, 47 L. J. C. 168. {y) Colonial Banlc v. Hepivorth^ L. E. 36 G. D. 36 ; 56 L. J. C. 1089 ; WiUlams v. Colonial Banh^ L. H. 38 G. D. 388 ; 57 L. J. G. 826. (=) Bills of Exchange Act, 1882, 45 & 46 Vict. 0. 61, s. 20 ; Byles on Bills, 84, 181, 9th ed. ; Collis v. Emett, 1 H. Bl. 313; Itiissd y. Laiigstaffe, Uougl. 614 ; see Ex p. IlaijR-nrd, L. R. 6 Ch. 546 ; 40 L. J. B. 49. As to bills accepted with a blank for the drawer, see Ilogarili, v. Lathatn, L K 3 Q. B. D. 643 ; 47 L. J, Q. B. 339 \ London ^- fi. )V. Bank v. Wmticoitii, L. R. 5 Ex. D. 96 ; 49 L. J. Ex. 657 ; Carter v.- Tflute, L. R. 25 C. D. 666 ; 54 L. J. G. 13S. {a) Schull: v. Astlcy, 2 Bing. N. C. 544 ; Ingham v. Friiiirose, 7 C. B. N. S. 82 ; 28 L. J. G. P. 294 ; Montague v. Perkins, 23 L. J. C. P. 188 ; Garrard V. Lewis, L. R. 10 Q. B. D. 30. But see I'oting v. Grote, 4 Bing. 253 ; Barker \. Stone, 9 Ex. 684 ; 23 L. J. Ex. 201 ; Baxendale v. Bennett, L. R. 3 Q. B. D. 525 ; 47 L. J. Q. B. 624. (i) See ante, p. 114, n. (o). [e) Co. Lit. 231 a. Per cur. Siggers V. Ecans, 6 E. & B. 383 ; 24 L. J. Q. B. 310. {d) Per car. TFeU v. Spicer, 13 Q. B. 893. (e) See Butler v. Baker, 3 Go. 26 b ■ Tou-nwn v. Ticket!, 3 B. & Aid. 31 ; CONTKACXS UNDER SEAL. 119 Hence a party to a deed may sue upon a covenant con- Chap. ii. tained in it without having executed it himself, and without Deed any other evidence of acceptance (/) ; as a mortgagee suing ^y^oue^'^ a mortgagor without having executed the mortgage deed (g). party only. And a corporation or company may sue upon a covenant in a deed without executing it, although a special form of execu- tion be required by statute to bind themselves (h). But the party so claiming as covenantee must accept the covenant, subject to all the conditions and provisoes expressed or im- plied in the deed, whether he has bound himself by executing it or not ; and it may be a condition precedent that the deed shall be executed by both parties (i). — Hence also in a deed containing covenants on both sides, though the covenants on the one side may be stated to be the consideration of the covenants on the other side, the party who has executed the deed may be bound, while the other party who has not exe- cuted the deed is not bound, for a covenant binds without consideration Ik). But in such case the mutual covenants Dependent covenants. may be so dependent on one another, either from their nature or by construction of their terms, as to render the covenants on the one side conditional upon the validity, or the perform- ance, of the covenants on the other side ; and then the cove- nants on the one side are not absolutely binding until the fulfilment of the condition by the execution of the deed, or the performance of the covenants on the other side. Thus, " with respect to leases by indenture the covenants 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 Doe V. Smi/th, 6 B. & C. 112 ; Beffiie 12 C. B. 723 ; 22 L. J. 0. P. 61. V. Croek, 2 Bing. N. C. 70; Slacei/ v. (J) Mmdonald v. law Union Ins., Elph, 1 M. & K. 198 ; Re Birchall, L. B. 9 Q. B. 332 ; 43 L. J. Q. B. L. R. 40 C. D. 436. 132 ; see Northampton Oas Co. v. (/) Petrie T. Bury, 3 B. & C. 353 ; Farncdl, 15 C. B. 630 ; 24 L. J. C. P. Rose V. Poulton, 2 B. & Ad. 822. GO. {g) Morgan v. Pike, \i C. B. 473 ; [k) Per cur. Pitman v. Woodburij, 3 23 L. J. C. P. 64. Ex. 11 ; see Northampton Gas Co. v. [h) British Empire Ass. v. Browne, Parnell, supra. 120 CONTEACl'S UNDER SEAL. Pabt I. are annexed, and during wHoli only they operate. Unless there be a term, a covenant to repair during the term is void. But with respect to collateral covenants not depend- ing on the interest in the land, it is otherwise, and they are obligatory "(/). Indenture. AH deeds are either indentures or deeds poll. An inden- ture is a deed made between two or more parties; and it is so called because it was formerly the practice to make an original copy of the deed for each of the parties on the same parchment, and then to separate them by an indented divi- sion, so that on subsequently comparing the parts they might be identified by the fitting of the indented edges (>»). The practice of indenting has fallen into disuse, and now by 8 & 9 Yict. 0. 106, s. 5, it is enacted " that a deed executed after the 1st of October, 1845, purporting to be an indenture, shall have the efEect of an indenture although not actually indented "(») . In the case of a material variance in the contents of the two parts of an indenture there is no valid contract (o) ; but a mere clerical mistake may be read as corrected by the context [p). — Leases are usually made by indentures of lease and counterpart ; the lessor executes the lease, which conveys the interest in the land, and delivers it to the lessee, whose property it becomes ; the counterpart is executed by the lessee and delivered to the lessor, and is the security to him for the covenants and conditions and powers of re-entry (^). The lessor may prove the contents of the lease by the counterpart, or, if the lessee refuses to produce the lease, by parol evidence (r). Lease and counter- part. {I) Per cur. Pitman v. Woodbury, 3 Ex. 11 ; Swatman v. Ambler, 8 Ex. 72 ; 22 L. J. Ex. 81 ; Sow v. Greek, 3 H. & C. 391 ; 34 L. J. Ex. i ; Toler V. Slater, L. E. 3 Q. B. 42 ; 37 L. J. Q. B. 33 : see Pistor v. Cater, 9 M. & W. 315; Cooch v. Goodman, 2 Q. B. 680; lloucjhUm v. Kamig, 18 C. B. 235; 25 L. J. 0. P. 218; and see poxt, p. 5fi4. (/«) Co. Lit. 143 a; Lit. s. 373; Shepp. Touch, 50, in) See Stile'' s ease, 5 Co. 20 h. (o) TTi/iine's ease, L. R. 8 Ch. 1002; see ante, p. 17. (p) Biirehell v. Clarl;, L. R. 2 C. P. D. 88;46L. J. C. P. 115; see post,--p. 274. (j) Hall V. Pall, 3 M. & a. 242. (r) Eoe V. Daeis, 7 East, 363; Pear^e v. JUrrice, 3 B. & Ad. 396 ; JIiill V. Sail, iiipra ; Houghton v. I^wnig, 18 C. B. 235 ; 25 L. J. C. P. 218; see Purc/iell v. Clark, supra. <;ONTRACTS UNDER SEAL. 121 A deed poll is a deed made by one party only ; and it is so Chap, ii. called because the edge is polled without indenting («). In a Deed poll, contract by deed poll, the promisee does not appear formally as a party to the deed, but is identified only by name or designation in the body of the deed ; he is entitled to take the benefit of the deed, but subject to the conditions and provisoes therein expressed (t). Policies of insurance on ships and goods are commonly made in the form of a deed poll, purporting to be made for the benefit of all the persons interested in the property insured («() . The terms indenture, deed, or icriting obligatory import in general a deed under seal(r). The Act of a railway com- pany requiring that transfers of shares should be made by writing under the hands and seals of the parties was held to intend an instrument, with all the incidents of a deed {x) . Under articles of a company permitting the transfer of shares to be made by an " instrument in writing " a deed is not necessary {y). — A promise contained in a deed is specially Coveuant. called a covenant, also a special contract or contract by specialty. " No precise form of words is necessary to constitute a cove- nant ; any words in a deed which show an agreement to do a thing make a covenant " (s). A bond is a deed wherein a party acknowledges himself Bond, to be bound or indebted to another in a certain sum of money. It is sometimes called an obligation in a special sense of the word ; and the parties are called respectively the obligor .and the obligee (a). — A bond containing such Single acknowledginent simply is called a single bond; but there may be appended to it a condition that upon the performance (s) A«te, p. 120, n. (m). {z) Per cur. Wolveridge v. Steward, It) Sunderland Marine Ins. v. Kear- 1 C. & M. 657 ; Parke, B., Cannock v. ney, 16 Q. B. 925; 20 L. J. Q,. B. Jones, 3 Ex. 237. SeeBolUsr. Carr, 417; see BMfe, p. 118. 2 Mod. 91; Saltoun v. Houston, \ («) Sunderland Marine Ins. t. Kear- Bmg. 433 ; Sampson T. Easterbij, 9 neij, supra; see 28 Geo. III. c. 56, B. & C. 505 ; Q'&i-Dg. Mi; Richardson a. 1 ; post, p. 369. t. Jenkins, 1 Drew. 477 ; and see {v) See 1 Wms. Saund. 291 (1). post, p. 196. (x) Hibblewhite t. M'Morine, 6 M. (a) Shepp. Touch. 367 ; Sawyer v. & W. 200. Maivc/ridge, 11 Mod. 218 ; see Bedov/s {y) Ante, p. 117. case, 1 Leon. 25. 122 CONTRACTS UNBEE SEAL, Paet I. Bond with condition. Common money tond. Special condition. Belief against penalty. Belief Tinder 4 & 5 Anne, c. 16. Payment post diem. Payment into Court. 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. And the debt acknowledged by the bond, being fixed at a larger sum than the equivalent of the condition, for the purpose of securing its performance, is called the penal sum or penalty. — Common money bonds are bonds with 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, otherwise it is to be forfeited. In such bonds the penalty acknowledged to be due is generally fixed at double the sum secured. The con- dition may be adapted to secure any other matter : as the performance of the covenants in a deed, the faithful discharge of an office, or the rendering of accounts, upon satisfaction of which the bond is declared to be void ; 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 construction of the bond. But the Court of Chancery gave relief against the forfeiture at law upon payment of the amount really due, or of the damages actually arising from the breach of the con- dition {b). A power of granting similar relief in certain cases is given to the Courts of law by the following statutes. Common money bonds with a penalty, which by strict law were forfeited by non-payment of the money ad diem accord- ing to the condition, are subject to the statute 4 & 5 Anne, c. 16, s. 12. This statute enacts that in an action upon a bond with a condition to pay a lesser sum at a day or place certain, payment before the action of the principal and interest due, though not made according to the condition, may be pleaded in bar of such action as effectually as if the money had been paid at the day and place according to the condition. The same statute, s. 13, enables the defendant in an action upon any such bond with a penalty to bring into Court all the principal money and interest due on such bond together with costs in full satisfaction and discharge of the bond ; and under the Judicature Acts, Order XXII. r. 1 the (J) Sloman v. Walter, 1 Bro. C. C. 418 ; 2 White & Tudor, L. C, 6th ed., 1257; En-ingtonY.Aynesl!/, 2 Bro. CONTRACTS UNDER SEAL. 123 payment into Court may be pleaded in tlie action ; and under Chap. il. Order XIX. r. 3, a set off may be pleaded {c). Bonds with special conditions are subject to the statute Belief 8 & 9 Will. III. c. 11, which applies "in aU actions on any g'&^Will. bond, or on any penal sum, for non-performance of any ^' ''• ^^■ covenants or' agreements in any deed or writing contained." This statute restricts the amount recoverable at law to the damages for the breaches of the conditions or agreements which the plaintiff shall assign and prove ; and it allows the judgment for the penalty to remain only as a security against further breaches {d). — A bond conditioned for payment of a sum by instalments, during the currency of the instalments, is within this statute, and not within the above statute of Anne {e). A bond conditioned lor payment of a sum on a certain day and interest in the meantime on certain days, after the lapse of the day for payment of the principal becomes a bond within the statute of Anne ; and it is not necessary to assign breaches of the condition under the statute of Will. III. (/). Hence a bond with condition binds the obhgor to the Effect of performance of the condition with the same effect as a condition, covenant in similar terms ; no action can be maintained upon the bond until a breach of the condition, and no more can be recovered than the damages sustained by the breach [g) ; but the amount of damages is presumptively limited to the amount of the penalty (/?). In an action on the bond, a plea denying or excusing the breach is a good plea (?) ; the Statute of Limitation begins to run from the breach, but only against that breach; and a new breach gives a new cause of action (Ji). So in bankruptcy the penalty of a bond is not proveable as a debt, but only the liability incurred for (c) Bulleu & L. Precedents of Falmer v. Loclce, L. E. 15 C. D. 297. Pleading, -tth ed. "Bonds." And (h) Wildev. Clarkson, 6 T.B,. 303; see post, p. 764. Branscombev. Scarbmigh, 6 Q. B. 13. {d) See ibid. ; and see post, p. 93.3. See poU, p. 93.5. [e) Freston v. Daiiia, L. E. 8 Ex. (i) See French v. CampbcU, 2 H. 19 ; 42 L. J. Ex. 33. Bl. 163 ; Beswick v. Saindells, 3 A. ('/) Smith V. Fond, 10 Bing. 125 ; & E. 868. see Fee v. Zeiter, 7 C. B. 1008. {k) Sanders v. Coward, 15 M. &W. {(/) Co. Lit. 206 a ; Cage v. Acton, 48 ; Tuckey v. JSau-kins, 4 C. B. 655. 1 il. Eaym. 516 ; Milbourn v. Ewart, See post, p. 842. 5 T. R. 381 ; see Jessel, M. E., 124 CONTKACTS UNDER SEAL. Paet I. Specific perform- ance of condition. a breach of the condition (/). — Bonds with special conditions are also construed and applied in equity according to the intention of the parties, merely as securities for the agree- ment expressed in the recitals and condition of the bond ; and therefore may he enforced by specific performance or injunction (w). And in such oases the obligor is not allowed the option of forfeiting the penalty instead of performing the condition ; thoiigh the specific relief given may be of greater value than the penalty of the bond (n). Considera- tion in contracts under seal. Voluntary covenants. Effect in equity. Contracts made by deed under seal do not require a con- sideration to give validity to the promise in the same sense as simple contracts by agreement. With the latter the conside- ration is made a necessary condition, as proof of the intention that the promise shall be binding, and to avoid giving effect to promissory expressions which are not so intended. With contracts under seal, a deliberate intention to make a binding promise is presumed from the formalities required in the execution of a deed. — Hence a voluntary promise, that is, one that is gratuitous or without consideration, may be made binding in the form of a covenant by a deed under seal ; though such a promise cannot be made binding in the form of a simple contract (o). Equity follows the law in this respect and allows a voluntary covenant full legal effect. But the Courts in administering equity, though they cannot set aside or restrict the legal operation of a contract merely upon the ground that it is voluntary, yet refuse to apply the auxiliary remedies of specific performance or injunction, or any other purely equitable remedies (p) ; also by the rules of equity in the administering of assets voluntary bonds and covenants are postponed to all debts founded upon valuable (l) St. Martin v. Warren, 1 B. & Aid. 491 ; Sinton v. Acraman, 2 C. B. 367. ()«) Chininer v. GMllmer, 2 Ves. Ben. 528; Howard v. ll'oothcard, 34 L. J. C 47 ; Gravely v. Bernard, L. E. 18 Eq. 518 ; 43 L. J. C. 659 ; London a)td Yorkshire Bank v. Frltt, 56 L. J. C. 937 ; and see post, p. 937. {n) lb. ; Jeudwinc v. Aaate, 3 Sim. 141. (o) See ante, p. 6 ; Plowden, p. 308 ; Wilmot, J., PiUans t. Van Mierop, 3 Burr. 1670. {p) Jeffenjs v. Jeferys, Cr. & Ph. 138; H'alrondw JValrond, Johns. 18; 28 L. J. 0. 97 ; Be Lncau, L. E. 45 C. D. 470 ; 60 L. J. C. 40 ; and see post, p. .j'29. CONTRACTS UNDER SEAL. 125 consideration ; and the same rule applied in bankruptcy until Chap. Ii. abolished by the Bankruptcy Act, 1869, s. 32 (repealed and re-enacted by the Bankruptcy Act, 1883, s. 40), which pro- vides that, save certain excepted debts, " all debts provable in the bankruptcy shall be paid pari passu" {q). — Although the Illegalcon- existence of a consideration is not essential in a contract under seal, yet if a consideration in fact exists, it must be lawful. If the consideration is unlawful the contract is void ; and the illegality of the consideration may be alleged and proved even in contradiction to the written terms of the deed (r). Debts created under seal, or specialty debts, at common Priority of law had priority over simple contract debts in the administra- under seal tion of the personal assets of the deceased debtor ; and the tration of ' executor or administrator was bound to discharge all specialty a-^sets. debts of which he had notice before debts arising from simple contracts (.s). This priority was taken away by the statute, 32 & 33 Yiot. 0. 46, enacting that " in the administration of the estates of every person who shall die on or after 1st Jan., 1870, no debt or liability of such person shall be entitled to any priority or preference by reason merely that the same is secured by or arises under a bond, deed, or instrument under seal, or is otherwise made or constituted a specialty debt ; but all creditors of such person, as well specialty as simple contract, shall be treated as standing in equal degree, and be paid accordingly out of the assets of such deceased person, whether such assets are legal or equitable "(<) . Rent is a specialty debt within this statute and is theref9re deprived of its former priority (it). In the administration of kgal personal assets, comprising Legal and all such assets as the executor can reach virtute officii, whether assets. by law or in equity, the rule of equity followed the \a,w{x). [q) Ex p. Fottinger, L. R. 8 C. D. (t) As to judgment debts, see post, 621 ; 47 L. J. B. 43. p. 139. (r) Collins v. ^lantern, 2 Wils. 341 ; («) SeSastings, L. R. 6 0. D. 610 ; 1 Smith's L. C. 9th ed. 398; Faxton 47 L. J. C. 137 ; see Kidd v. Boone, V. Popham, 9 East, 408. See post, L. R. 12 Eq. 89 ; 40 L. J. C. 531 ; p 672. Talbot v. Shrewshury^ L. R. 16 Eq. ' («) "Wms. Ex. 5th ed. 909. 26 ; 42 L. J. C. 877. {x) "Wms. Ex. 5th ed. 890, 1520 ; 126 CONTKACTS UNDER SEAL. Past I. But equity does not recognise any debt as a specialty which is not a specialty at law. A claim for money due from a trustee, though the trust was created and accepted by deed under seal, is not entitled to any priority, unless there is a covenant to pay it(?/). A covenant to execute a deed which would create a specialty debt itself creates a specialty debt : as a covenant to execute a mortgage deed with all usual powers and covenants, which would include a covenant for payment of the debt(s); and a covenant to execute a lease with usual covenants, including a covenant to pay the rent («) . — In the administration of equitable assets, comprising all such assets as the general creditor can reach only through a court of equity and not through the executor, no priority is allowed ; they are applied in discharging all liabilities pari passu {h), except that voluntary debts are postponed to those incurred for valuable consideration (c). Eemedies against real estate. Contracts "binding heirs. At common law a creditor could not levy execution against the real estate of his debtor during his life,, or after his decease. The statute West. 2, 13 Edw. I. c. 18, by the writ of elegit, first subjected the land of a debtor to execution upon a judgment against him((i). — But if a person by a deed under seal bound himself " and his heirs," or covenanted for himself " and his heirs," thereby expressly charging his heir with the debt or covenant, the heir became chargeable to the full value of all the land which the ancestor left to descend to his heir; and which were, therefore, called assets by descent {e). By the Statute of Frauds, 29 Car. II. c. 3, s. 10, which extended execution against equitable estates generally, trust or equitable estates of inheritance were declared to be assets Cook V. Grcgsan, 3 Drew. 549 ; 25 L. J. C. 706. (y) Holland v. Bolland, L. R. 4 Ch. 449 ; 38 L. J. C. 398 ; Adey v. Arnold, 2 D. M. & a. 432 ; Isaacson v. Ear- wood, L. R, 3 Ch. 225 ; 37 L. J. C. 209 ; JTynch v. Grant, 2 Drew. 312 ; 32 L. J. C. 834. iz) Saunders v. Milsome, L. E. 2 Eq. 673. (a) Kidd V. Soone, L. K. 12 Eq. 89 : 40 L. J. C. 531. • (b) See Re Poole's Estate, L. E. 6 C. D. 739 ; 46 L. J. C. 803. (f) See E.r p. Pottingcr, ante, p. 124. ^ {d) See post, p. 135. («) Ilarbert's case, 3 Co. 12 a; see notes to Jeffreson v. Morton, 2 Wms. Saund. 7 ; Bullen & L. Prec. PI 4th ed, pp. 194, 205. CONTRACTS UNDER SEAL. 127 by descent, and the lieir was made chargeable with the obli- Chap. ii. gation of his ancestors by reason of such assets as fully as if the estate at law had descended to him in like manner as the trust. And by s. 12, estates jmr autre vie were made charge- able in the hands of the heir, if they came to him by special occupancy, as assets by descent, as in the case of lands in fee simple. The creditor by specialty had no remedy against a devisee statute of of the land, until the passing of the statute 3 W. & M. c. 14 devises. (known as the statute of fraudulent devises). This statute enacted, as to bonds and specialties binding the heirs, that all dispositions of land by will shall be deemed and taken; as against such creditors, to be fraudulent and void, s. 2 ; and that such creditors shall have an action of debt upon their bonds and specialties against the heir of the obligor and the devisee jointly, s. 3. An exception is made of devises or dispositions by will for the payment of debts, s. 4. This statute was repealed by the statute 1 Will. lY. c. 47, and re- enacted in similar terms ; but with an extended operation to covenants as well as debts, to which the former Act was restricted, ss. 2, 3 (/) ; and in the case of there not being any heir at law, enabling the creditor to sue the devisee solely, s. 4c {g). — At common law the heir was not liable, if he had Plea of bond fide aliened the lands descended before the commence- descent. ment of the action against him ; he might then plead ricns per descent, that is to say, that he had not any lands of the ancestor at the time of suing out the writ. But by the above statutes he was made answerable to the value of the lands so aliened ; and it was provided that the plaintiff might reply to the plea of riens per descent, that the defendant had lands from his ancestor before the writ brought; and thereupon judgment might be given and execution awarded to the value of the lands, as if the debt were his own. The devisees were made similarly chargeable, notvrathstanding they had aliened (/) Wilson V. Kmilky, 7 East, 128; L. J. C. 114. Jenkins v. Briant, 6 Sim. 603 ; Coope (g) Hunting v. Sheldrake, 9 M. & v. Cresswell, L. K. 2 Ch. 106 ; 36 W. 256. 128 CONTRACTS UNDER SEAT,. Paet I. the lands before the action was brought (A). The liability of the heir or devisee therefore became a personal liability- limited to the value of the estates, chargeable only against their personal estate and not as a specialty debt against their real estate generally, nor specifically against the real estate descended or devised, which they were free to sell and alienate (z). — The creditor may follow the real estate or the proceeds in the case of the bankruptcy of the heir or devisee, or it seems in case of a voluntary alienation by them without Exonera- consideration (k). — The creditor may proceed against the heir tionofreal ,. ^'., ,. ,i i . assets by or devisee notwithstandmg there may be personal assets soniTity! unadministered ; for the rule that the personalty is the primary fund for the payment of debts applies only in equity in distributing the charge of debts between the real and per- sonal representatives, entitling the heir or devisee who has been compelled to pay the specialty debts to be reimbursed out of the personal estate, as against the next of kin or the residuary legatee ; and the Court will marshal the assets in order to apportion the debts to the respective funds (/). — Contracts Contracts under seal in which the obligor or covenantor binds heirs. Hmsclf Only, and does not expressly bind his heirs also, gave no remedy against the heir or devisee at common law ; the only remedy being against the executor or administrator in respect of the personal assets, but with priority over simple contracts (w) . By the Conveyancing Act, 1881, 44 & 45 Vict. c. 41, s. 49, a covenant and a contract under seal and a bond or obligation under seal, made after the commencement of this Act, though not expressed to bind the heirs, operates in law to bind the heirs and real estate, as if heirs were expressed ; if a contrary intention is not expressed, and subject to the terms and provisions therein contained. (A) 3 W. & M. c. 14, ss. 5—7 ; 1 see Re lUidge, L. R. 27 C. D. 482 ; Will. IV. c. 47, ss. 6-8 ; see 2 53 L. J. 0. 991. Wms. Saund. 8, n. ; Brown v. Hhuker, (k) Ex p. Morton, 6 Ves. 449. 1 C. & J. 583. [l) GaUon v. Sancock, 2 Atk. 424 ; (j) Thome y. Kerr, 2 K. & J. 54 ; Wms. Ex. 8th ed. 1699 ; JJ'alters v. 25 L. J. C. 67 ; Me Hedghj, L. B. 34 Wallers, 18 C. D. 187 ; 50 L J. C. D. 379; 56 L. J. C. 360; con- C. 819 ; see i?(^ JTcuiV/, 61 L. J.C. 76. seqnently the heir had a right of {»«) Co. Lit. 209 a ; 383 b ; 386 a ; retainer for his own specialty debt ; see ante, p. 125. CONTRACTS UNDER SEAL. 129 The right of charging the real assets of a deceased debtor Chap. ii. was extended to debts of all kinds by the statute 3 & 4 Real estate Will. TV. c. 104 (Sii- John Eomilly's Act), enacting,, "that TetuTty*' ■when any person shall die seised of or entitled to any estate *°^^^^^i or interest in lands, tenements, or hereditaments, corporeal or incorporeal, or other real estate, whether freehold, customary- hold, or copyhold, which he shall not by his last will have charged with or devised subject to the payment of his debts, the same shall be assets to be administered in Courts of Equity for the payment of the just debts of such person, as well debts due on simple contracts as on specialty ; and that the heir or heirs at law, customary heir or heirs, devisee or devisees of such debtor shall be liable to all the same suits in equity at the suit of any of the creditors of such debtor, whether credi- tors by simple contract or by specialty, as the heir or heirs at law, devisee or devisees of any person or persons who died seised of freehold estates was or were before the passing of this Act liable to in respect of such freehold estates at the suit of creditors by specialty in which the heirs were bound ; provided that in the administration of assets by Courts of Equity under and by virtue of this Act, all creditors by spe- cialty 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 "(w). — The Priority of priority reserved in the proviso to specialty debts in which d^bts'taken the heirs are bound, together with the general priority of '^^^^^ specialty debts in the administration of assets at law and in equity, was taken away by the statute 32 & 33 Yict. c. 46, already cited (o). — Land or real estate charged by will with Land or devised subject to the payment of debts, excepted from the will with operation of the above Acts, becomes equitable assets, and is §ebt^™*° therefore administered in equity in discharge of all creditors pari passu, without any priority or preference [p) . («) As to the effect of this statute, (o) Ante, p. 125. see Wms. Ex. 8th ed., pp. 1697, [p) See ante, p. 126. 1720. L. K 130 CONTRACTS UXDEE SEAL. Paet I. The statute 17 & 18 Viot. o. 1 13 (Locke King's Act) enacted L^^d ' that land, as between the different persons claiming through iiaWe to'^ or under the deceased owner, shall be primarily liable to the debts^and P^Ji^ient of all mortgage debts charged upon it at the time charges. of Ms death, unless he shall have by will or deed signified an intention to the contrary; and that the heir or devisee shall not be entitled to have the mortgage debt discharged out of the personal or other real estate. By 30 & 31 Vict. 0. 69, s. 2, this enactment was extended to " any lien for unpaid purchase-money upon any lands purchased by the testator." And by 40 & 41 Yict. c. 34, s. 1, it was extended to lands of any tenure, and to any equitable charge, and to the estates of intestates {p). Limitation Contracts under seal have a further superiority over simple upon con- Contracts in respect of the period of limitation for actions. seaf. ^^ ^^ Where the cause of action arises upon a 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 [q). — Some other doctrines peculiar to contracts under Merger. geal may here be mentioned : a contract under seal, being attended with superior remedies, operates ia law in merger of a simple contract on the same matter ; that is to say, if a bond or covenant under seal be given to secure a simple con- tract debt, the simple contract is merged in the contract under seal and is thereby extinguished, according to a general 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 secu- ?'deed^ rity (r).— The doctrine of estoppel applies to the recitals and statements made by a party to a deed under seal ; they 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 in the same right, or those [p) See notes to Ancaster v. Mayer, 23. 1 White & Tud. L. C, 6th ed. (y) See post, p. 828 p. 723; Se Anthony, (1892) W. N. ()•) ?>eepost, p. 804. CONTKACTS rNDEE SEAL. 131 claiming through them (.s). The estoppel does not extend to Cblaf. Ii. proceedings by a party in a different right (t) ; nor to pro- ceedings by persons not parties nor claiming through parties to the deed {u) ; nor to proceedings for purposes collateral to the deed, though for such purposes the contents of the deed may be evidence (;r) . The effect of a deed in estoppel is also restricted to such recitals and statements as are intended to be agreed upon as true against one or other of the parties ; and this intention is to be gathered from the construction of the deed (y). — It is also a general rule of law that a contract Deed under seal cannot be varied or discharged by a simple agree- varied by ment not under seal ; as expressed in the maxim, unumquod- ^'^^ement. que dissohn eo Ugamine quo ligatum est. But such an agreement may be effectual in equity to restrict or oppose the legal operation of the deed (z). (s) Co. Lit. 352 a ; see Doe v. Oliver, a.ni. Duchess of Kingston's ease, 2 Smith, L. C, 9th ed. 803; Lainson T. Tremere, 1 A. & E. 782. [i) Metiers T. Brown, 1 H. & 0. 686; 32 L. J. Ex. 138. {u) Heath v. Crealock, L. E. 10 Ch. 22; 43 L. J. 0. 169; Cracknall t. Janson, L. R. 11 C. D. 1. {x) Carpenter v. BuUer, 8 M. & W. 209 ; Ex p. Morgan, L. E. 2 C. D. 72 ; 45 L. J. B. 36. (v) Strovgliill^.Buok, 14 Q. B. 781 ; 49L. J. Q. B. 209. (2) See^osi, p. 692 ; Miitland's case, 5 Co. 26 a ; Blake's case, 6 Co. 43 b ; JYash V. Armstrong, 10 C. B. N. S. 259 ; 30 L. J. C. P. 286 ; Steeds v. Steeds, L. K. 22 Q. B. D. 537 ; 58 L. J. Q. B. 302. k2 132 Chapter III. PaetI. Contracts of record. JudgmeDt dett. CONTRACTS OF EECOED. PAOE Contracts of record — judgments 132 Judgment by consent — warrant of attorney — cognovit ac- tionem — judge's order 133 Action on judgment — costs of action 134 Execution — writ oi fieri fMias — of elegit 135 Judgment charged upon land under ehgit — under 1 & 2 Vict, c. 110 — registration of judgment and writ— equitable execution 136 Priority of judgment debt in administration of assets— judg- ment against executor , 139 Effect of judgment in merger of debt— effect in estoppel . . 140 Eecognizance — statutes merchant and staple 141 Debts created by statute — debt on foreign statute 142 Contracts of record comprise Judgments, Eecognizances, and Statutes merchant and staple («) . — A record is a memorial or entry of the acts and proceedings of a Court of Record. The enrolment or entry in the roll of the Court is essential to constitute the record and to give it special efficacy (S) ; and the Court has power at all times to inspect its own records (c) . A record is conclusive of its contents, and admits no averment or proof to the contrary. If an alleged record he denied, the fact is tried by the mere production and inspection of the court roll, from which it appears whether there is the record alleged and what are the contents id) . The judgment in an action in a Court of Record, when final, is entered upon the roll of the Court containing the record of the action. A judgment that the plaintiff shall {a) 2 Blackst. Com. 466. (e) Craeen v. Smith, L. E. 4 Ex. (J) Glynn v. Thorpe, 1 B. & Aid. 146 ; 38 L. J. Ex. 90. 153. {d) Co. Litt. 117 b, 260 a. JUDGMENT DEBTS. 133 recover against the defendant a sum of money as debt, or Chap. hi. damages, or costs of sxiit, creates a debt ; wMch is therefore a debt or contract of record. So a judgment for the defendant, that he shall recover a sum of money for his costs of defence, creates a debt of record {e) . Judgments of Courts not of record, and judgments of foreign and colonial Courts, have been already treated as creating simple contract debts (/). A judgment, being a simple mode of securing a debt Judgments attended with easy proof and convenient remedies, may be 5"^°°'™ ■ used for this purpose by agreement without previous litigation ; also after the commencement of an action, the parties may come to an agreement as to the entry of judgment, and the terms on which it is to be enforced. — A warrant of attorney Warrant of is an instrument in writing, usually under seal, giving ^ °™®y- authority to enter judgment against the party executing it without process ; and it may be,. made subject to a defeasance containing the terms and conditions upon which the judgment may be entered and execution issued (g). A cognovit actionem Cognovit , .. .,. {* • i_i r»i* actionem. is an instrument m writing, coniessmg the cause oi action in a pending suit, and authorizing the plaintifE to enter judg- ment ; it may also be made subject to terms and conditions controlling its application. Also a judge's order may be judge's made by consent, authorizing the plaintiff to enter judgment °^ ''^' against the defendant in an action, forthwith or at a future time, and subject to terms of defeasance or condition. — The judgment entered by consent under these instruments is attended with the regular incidents of a judgment as if entered in invitum ; but the terms of the defeasance or condition con- trol the execution according to the intention of the parties ; and the Courts exercise an equitable jurisdiction to apply the judgment and execution accordingly (h). These instruments are not within the statute 8 & 9 WiU. III. c. 11, which (e) See ante, pp. 104, 108 ; Michard- {h) Parke, B., WentwortJiY.BuUen, son v. TFillis, L. K. 8 Ex. 69 ; 42 L. J. 9 B. & C. 840 ; Charrington v. Laing, Ex. 15. 6 Bing. 242 ; 8haw v. Worcester, 6 (/) See ante, p. 104. Bing. 385 ; SherbornY. Himtingtower, (g) Kinnersley T. Mussen, 5 Taunt. 13 C. B. N. S. 742 ; Cook v. Fowler, 264; see Chitty's Practice and Forms. L. E. 7 H. L. 27, 134 CONTRACTS OF RECORD. Part I. requires the plaintiff in an action on any penal suna to assign breaches («).— The Debtors Act, 1869, 32 & 33 Yict. c. 62, s. 24, provides "that a warrant of attorney or cognovit actionem shall not be of any force, unless there is present some attorney of one of the superior Courts on behalf of such person, to inform him of the nature and effect of such warrant or cognovit before the same is executed ; which attorney shall subscribe his name as a witness to the due execution thereof." By sect. 26, it must be filed within twenty-one days from the execution as required by the statute 3 Geo. IV. c. 39 ; and any defeasance or condition must be written on the same paper or parchment before the filing thereof, otherwise the warrant or cognovit shall be void (/c) . By sect. 27, a judge's order by consent to enter judgment must be filed within twenty-one days of the making of the order, otherwise the judgment, and any execution . thereon is void creditors (l). against Action on judgment. Costs of action. A judgment for payment of a certain sum of money may be treated as a distinct debt or claim upon which a new action may be brought (>«) . And it is prima facie a good petitioning creditor's debt in bankruptcy, without the consideration being stated, and though stated erroneously; but which may be inquired into on behalf of the bankrupt's estate {n) . — But the right to bring a new action upon a judgment is qualified by the statute 43 Geo. III. c. 46, s. 4, which enacts " that in aU 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." An order will not be made where the plaintiff might have realized his judgment by exeou- (i) See ante, p. 123 ; Kinnersley v. JIusseit, 6 Taunt. 264 ; Shaiv v. IFor- cester, 6 Bing. 385 ; see Jlitrst v. Jennings, f; E. & 0. 650. (/c) Siirst V. Jennings, 5 B. & C. 650 ; Bennett v. Daniel, 10 B. & 0. 600. [l) Bnjcin f. Child, 5 Es. 3GS ; Gov>an T. TJ'righf, L. R. IS Q. B. D. 201; 56 L. J. Q. B. 131. {m) See aiile, p. 125. {n) Ex p. Ritso, L. R. 22 C. D. 529 62 L. J. C. 535 ; Exp. Lennox, L. B 16 Q. B. D. 315; 55 L. J. Q. B. 45 Se Elataii, L. R. 22 Q. B. D. 83 ; see post, p. 141. JUDGMENT DEBTS. 135 tion (o). The statute applies only to judgments recovered by Chap. III. plaintiffs, and not to judgments against plaintiffs for costs (p) ; and it does not apply to an action including other causes of action besides the judgment (17). The costs seem now to be subject to the larger discretion given to the Court by the Judicature Acts, Ord. LXV. r. 1 (r) . A judgment is enforced in the ordinary course of procedure Execution, by execution ; and judgments of inferior Courts may be re- moved into the High Court for the purpose of execution (s). Execution cannot issue after six years from the judgment ■without leave of the Court (i!). Where judgment has been obtained against a firm an action may be brought upon the judgment against a member of the firm ; though Ord. XLII. r. 10, enables execution to be issued against him (u). By the common law a judgment creditor may have execu- By writ of tion, by the writ of _fieri facias, of all the goods and chattels J""^-'"""^- of the judgment debtor ; including chattels real and estates for years in land. But at common law no execution could be had of the land or real estate of the judgment debtor, beyond taking the present profits until satisfaction of the debt under the writ of levari facias. Execution against the possession of the land was first given in the statute of Westm. 2 (13 Edw. I. c. 18) by the writ of elegit, which originally re- Writ of quired the sheriff to deliver to the judgment creditor, besides the goods and chattels, one-half of the freehold land of the debtor (being the proportion of freehold land over which a tenant had then any power of alienation), to hold to him and his assigns until the debt should be levied upon a reasonable valuation {x). The Statute of Frauds, 29 Car. II. c. 3, s. 10, (0) Samner v. White, 12M. &W. (s) See ante, p. 105; Eanmer v. 519. White, supra. Ip) Bennett v. Neale, 14 East, 343. (t) Order XLII. rr. 22, 23 ; see (o) Jackson v. Everett, 1 B. & S. Fellows v. Thornton, L. R. 14 Q. B. 857 ; 31 L. J. Q. B. 59. D. 335 ; 53 L. J. Q. B. 279. ()•) L. Blackburn, Garnett v. Brad- (m) Clark v. Cullen, L. R. 9 Q. B. ley, L. R. 3 Ap. Ca. 944 ; 48 L. J. D. 355. Ex. 186 ; see Dickinson v. Angell, 3 (x) 3 Blaokst. Com. 417; Hard- B. & S. 840 ; 32 L. J. Q. B. 183 ; -wieke, L. C, Stileman v. Ashdown, 2 JSarris v. Petherick, L. R. 4 Q. B. D. Atk. 609 ; see Godfrey v. Watson, 3 611 ; 48 L.J: Q. B. 521. Atk. 517. 136 CONTRACTS OF EECORD. Paet I. Execution against real assets. extended the writ to all such lands as any other persons might be seised or possessed of in trust for the judgment debtor, and by the 1 & 2 Vict. c. 110, s. 11, the writ of elegit was extended to " all such lands, including lands of copyhold or customary tenure, as the person against whom executioa is issued, or any person in trust for him shall have been seised or possessed of at the time of entering up the judgment, or at any time afterwards, or over which such person shall have any disposing power for his own benefit." — By the Bankrupt Act, 1883, it is enacted that a writ of elegit shall not extend to goods (y). Upon the death of a judgment debtor his real assets may be charged in execution to the same extent by taking pro- ceedings to revive the judgment against the heir and tenants of the lands ; but the heir is then charged as tenant of the lands only and not as heir ; he is iiot liable to an action on the judgment as he is on a contract under seal of the ancestor in which he is expressly named (s). Judgment charged upon land under elegit. Under 1 & 2 Vict. 0. 110. The judgment operated as a hen or charge upon land at law, to the extent that it could be taken under the writ of elegit. And the Court of Chancery aided the legal execution vdth equitable remedies, as by appointing a receiver or by ordering a sale of the land, instead of the satisfaction at law out of the rents and profits (re) . — And by the above Act (1 & 2 Yict. c. 110), s. 13, it was expressly enacted that a judgment against any person in any of the Superior Courts shall operate as a charge upon all lands to which such person shall at the time of entering up the judgment, or at any time afterwards be entitled for any estate or interest, or over which such person shall have any disposing power for his own benefit ; and that every judgment creditor shall have the same remedies against the hereditaments so charged as he (j/) 46 & 47 Vict. 0. 52, s. 146 ; Hough V. Windus, L. R. 12 Q. B. D. 224; 63 L. J. Q. B. 165. (z) See ante, p. 126; Stileman v. Jishdown, 2 Atk. 608 ; Jeffreson v. Morton, 1 Wnis, Saund. 7, n. (4). {a) Stileman v. As/idowii, supra; see Mate v. Marlborough, 3 M. & Cr. 407 ; Smith v. Surxf, 10 Hare, 30 • 22 L. J. C. 289 ; Godfrey v. Tucker, 33 Beav. 280 ; 33 L. J, C. 569. JUDGMENT DEBTS. 137 would be entitled to in case the person had power to charge Chap. III. the same, and had by writing agreed to charge the same with the amount of such judgment debt and interest. And by ss. 14, 15, a judgment creditor is enabled to obtain a charging order on stock and shares in public funds and public com- panies belonging to a judgment debtor, with the same reme- dies as " if such charge had been made in his favour by the judgment debtor "(6). — Under this Act a judgment creates judgment no charge beyond the beneficial interest which the debtor is beneficial entitled rightfully to dispose of ; it therefore gives no priority i»t^''«st over a prior equitable charge created by the debtor (c) ; nor even over a voluntary conveyance previously executed {d) ; nor can a judgment creditor obtain priority over a prior assignee or claimant by giving earlier notice to the trustee or legal owner of the fund (e). — By the same Act, s. 19, together Eegistra- with subsequent Acts, it was fm-ther provided for the pro- judgment tection of purchasers, mortgagees and creditors of the judg- ^^^ '""'• ment debtor, that the judgment should not affect the lands as against them, either by force of the writ of elegit or as a charge under the Act, unless duly registered and re-registered every five years ; and by 23 & 24 Vict. c. 38, ss. 1 , 2, unless a writ or other due process of execution has been issued and registered and executed within three months. — Lastly, by the 27 & 28 Vict. c. 112, in order " to assimilate the law affect- ing freehold, copyhold, and leasehold estates to that affecting purely personal estates in respect of future judgments," it is enacted by s. 1, that " no judgment, statute, or recognizance, to be entered up after the passing of this Act shall affect any land (of whatever tenure) until such land shall have been actually dehvered in execution by virtue of a writ of elegii or other lawful authority in pursuance of such judgment, statute or recognizance" (/). By s. 3, "every writ or other (}) Zeaaoit V. Western, L. E,. 12 38 0. D. 238; Byre v. M'Bou-ell, 9 Q. B. D. 287 ; 53 L. J. Q. B. 316 ; H. L. C. 619. Drew T. TFillis, (1891) 1 Q. B. 450 ; {dj Dolphin v. Aijiward, L. K. 4 60 L. J. Q. B. 264 ; Ee Leavesley, H. L. 486. (1891) 2 Ch. 1 ; 60 L. J. 0. 385. (e) Scott v. Hastings, i'S.. & J. 633; (e) Whitworth t. Gaugain, 1 Phill. Arden v. Arden, L. R. 29 C. D. 702 ; 728 ; see Coate'scase, 46 L. J. C. 367 ; 54 L. J. C. 666. See joosi!, p. 1007. Badeley-v. Consolidated Bank, L. R. (/) See Baikg's Trusts, 38 Jj. J. C. 138 CONTRACTS 01'' RECORD. Past I. process of execution of any such judgment, by virtue wliereof any land shall have been actually delivered in execution, shall be registered in the manner provided by the Act, 23 & 24 Vict. c. 38"; "and no other or prior registration of such judgment shall be necessary for any purpose." And by s. 4, "every creditor to whom any land of his debtor shall have been actually delivered in execution by virtue of any such judgment, and whose writ or other process of execution shall be duly registered, shall be entitled to obtain from the Court of Chancery, upon petition in a summary way, an order for the sale of his debtor's interest in such land " in manner therein provided. Equitable jf +}^q interest of the debtor in the land be incapable of execution. _ _ ... actual delivery in execution, as an estate in remainder {g) , or an equity of redemption or other merely equitable interest (/;), the judgment creditor becomes entitled to have "equitable execution," that is, he may apply to the Court for relief, and, if the case admits, he may obtain an order for a receiver or for a sale («'). Such order operates as an actual delivery in execution under 27 & 28 Yict. c. 112, and gives priority over a subsequent purchaser without notice {Ji). Registration of the writ or process of execution, under s. 3, is not necessary to secure the charge upon the land ; it is only necessary for obtaining an order of sale under s. 4, to realise the charge (/). — ^ Where the land is already delivered in possession under a writ of execution, the judgment creditor with a later writ cannot have a sale under s. 4 ; he must fii-st apply to redeem and remove the prior writ, and then apply for a sale (ni). The priority between judgment creditors is determined by 237 ; Cork v. Sussell, L. R. 13 Eq. 75 ; 50 L. J. Q. B. 38 : Salt v. Coope,- 210 ; 41 L. J. C. 226 ; He Hobson, L. R. 16 C. D. 544 ; 50 L J C o'q L. R. 33 C. D. 493 ; 55 L. J. C. 754. See Re Shepard, L. R. 43 C D 131 ■ {g) Re South, L. R. 9 Ch. 369 ; 43 59 L. J. C. 83 ; Lcvasscur v :Hason L- J. C. 441. (1891) 2Q.B. 73; 60L. J. Q.B. 659. (h) Hatton V. Hayiuood, L. R. 9 (k) Hattoii v. Samcood L R 9 Ch. 229 ; 43 L. J. C. 372 ; Wells v. Ch. 229 ; 43 L. J. C 37-' • Re Povc Kilpin, L. R. 18 Eq. 298 ; 44 L. J. C. L. R. 17 Q. B. D. 743'-' 55 L j' 184 ; Til Utt^ Pearson 13 L.J. C. (.3. Q. B. 522. See Salt v. Cooper, supra. {i) Aiiglo-Itahan Bank v. Davie.'^, (I) /,',. Pope, supra L. 11. 9 0. D. 275 ; 47 L. J C. 833 ; («) Me Cowbridye Ru., L R 5 En Smith V. rwell, L. R. 6 Q. B. D. 413 ; 37 L. J. C 909 ^" JUDSMENT DEBTS. 189 the dates of delivering the writs to the sheriff for execution («). Chap. hi. The title to the property under an order for a receiver dates from the time when the order was made (o). A judgment creditor at common law had an absolute Priority of priority in the administration of the legal assets of the debt, deceased debtor, which the administrator was bound to recog- nise, being presumed in law to have notice of it as matter of record (yj). Now by the statute 23 & 24 Vict. c. 08, s. 3, following previous statutes, it is enacted that no judgments, not registered under the Acts in force for that purpose, " shall have any preference against heirs, executors, or administrators in their administration of their ancestor's, testator's or intestate's estates." And the enactment is con- strued as extending to creditors and depriving the judgment of priority against any other debts in the administration of assets unless registered {q). It applies to County Court judg- ments which can be removed into the superior Court and there registered (r). — This enactment does not extend to judgment judgments recovered against the executor or administrator, executor. who necessarily has notice of them (s) ; and who is bound to give priority to those amongst creditors of equal degree who recover judgments against him (.s), according to the dates of their judgments (t). This priority is not taken away by the statute 32 & 33 Vict. c. 46, in abolishing priority between specialty and simple contract debts in the administration of estates {11) ; nor is it taken away by the Jiidicature Act, 1875, s. 10, in providing that in the administration of assets the same rules shall prevail " as to the respective rights of secured (n) Guest Y. Cowhridge Ry., L. R. L. J. 0. 991. 6 Eq. 619 ; 37 L. J. C. 909. (r) Ro Turner, supra; ante, p. 10.3. (o) Levasseur v. Mason, mpra. (s) Ashley v. Pococlc, 3 Atk. 308 ; \p) WaiiamsonEx. 8th ed. 1000; Jennings t. Rigly, 33 Beav. 198; 33 Tuller V. Redman, 26 Beav. 600 ; 29 L. J. C. 149 ; see Re Stubbs' K'.lntc, L. J. C. 324; Evans v. Williams, 2 L. R. 8 C. D. 154 ; 47 L. J. C. 671. Dr. & Sm. 324; 34 L. J. C. 661. (I) DolUind v. Johnson, 2 Siu. & [q) Re Turner, 33 L. J. C. 232; GifE. 301 ; 23 L. J. C. 636. KempY, JVaddingham, L. R. 1 Q. B. (m) Williams v. Williams, L. R. 15 355; 35 L. J. Q. B. 114 f Van Eq. 270; 42 L. J. 0. 158; ante, Gheluive v. Nennelix, L. R. 21 C. D. p. 125 ; see Re Stubbs' Estate, supra. 189 ; 51 L. J. 0. 929 ; R>' Illidge, 53 140 CONTRACTS OF EECOKT). Pakt I. and unsecured creditors " as in bankruptcy ; such judgment creditor not being a secured creditor (a;). Effect of judgment m merger of debt. Effect of judgment in estoppel. The judgment of a Court of Eecord merges or extinguishes the cause of action on which it is founded. " If there he a breach of contract or wrong done or any other cause of action by one against another, and judgment 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 Jitdicatam,' the cause of action is changed into matter of record, which is of a higher nature, and the inferior remedy is merged in the higher " (y). If another action is brought for the same cause, the judgment already recovered against the defendant may be pleaded in bar (s). The judgment of an inferior Court or of a foreign Court has not this operation, and cannot be so pleaded (a) . Hence also the judgment operates in estoppel, that is, is conclusive between the parties upon the matter adjudicated ; which thereby becomes res Judicata, and cannot be again litigated between the same parties ; nor can a party bring an action to set aside a judgment upon grounds which re-open the matter adjudicated (i). In an action on a judgment the defendant cannot plead any matter of defence which he might have pleaded in the original action (c) ; as a discharge in bankruptcy or by a deed of composition (d). He cannot plead (:r) Smith v. Morgan, L. R. 5 0. P. D. 337 ; 49 L. J. C. P. 410 ; Ee Maggi, L. E. 20 C. D. 545 ; 51 L. J. C. 560. (,v) Per air. King v. Soare, 13 M. & W. 504 ; see Drake v. Mitchell, 3 East, 258 ; post, p. 807. (z) Todd V. Stewart, 9 Q. B. 759. («) Smith V. Nicolh, 5 Bing. N. C. 208 ; see post, pp. 813, 814. (i) Mansfield, C. J., Moses v. Mac- ftrlan, 2 Burr. 1009 ; see Flotver v. Lloyd, L. R. 10 C. D. 327 ; and see post, p. 811. (c) Per ear. KllisY. MeSenn/, L. R. 6 C. P. 238; 40 L. J. C. P. 109; Jeinbury v. Mammery, L. R. 8 C. P. 56 ; 42 L. J. C. P. 22. {d) Tudd V. Maxfcld, 6 B. & C. 105 ; Brann v. Tl'etlcr, L. R. 2 Ex. 183; 36 L. 3, Ex. lUO ; see Eossi v. Baily, L. R. 3 Q. B. 621 ; 37 L. J. Q. B. 204 ; Allen V. Carter, L. R. 5 0. P. 414 ■ 39 L. J. C. P. 212. RECOGNIZANCES. 141 the pendency of an appeal, though he may apply to stay pro- Chap. hi. ceedings upon that ground (e). Nor can he plead any matter which forms a ground of error in the judgment, hut he must resort to a writ of error (/) ; nor can he plead the pendency of a writ of error {g), for the record can be amended or set aside only by the Court which made it, or by a Court of error upon sufficient grounds, and upon regular proceedings being taken for that purpose (Ji). But in proceedings in bankruptcy against the judgment debtor the consideration for a judgment debt may be inquired into, because the interests of the other creditors are concerned (?) ; and if the proof of the considera- tion is rejected the judgment debt is baiTed {k). — Upon the Judgment same principle a judgment recovered against the plaintiff plaintiff, upon the merits of the case is conclusive and operates in estoppel to preclude him from bringing another action for the same cause {I). But where one of several plaintiffs died pending the action, judgment against the others was held to be no estoppel against the executor of the deceased (w). A recognizance at common law is an obligation in the form Eeoogni- Z3/I1C6 of an acknowledgment of a debt, made before a judge or other officer having authority for that purpose, and enrolled in a Court of Record. The debt is acknowledged to be due to the crown, or to an officer, or to the plaintiff in an action, and is conditioned to secure various objects, as to appear at the assizes, to keep the peace, to become bail, to act as re- ceiver in an action. A recognizance is not made under seal ; it is proved by the record, and may be put in suit by writ of scire facias upon the record or by an action of debt («) . A [e) See ante, p. 107, n. (c). Anderson, L. R. 14 Q. B. D. 606 ; 54 (/) Dick T. Tolhausen, 4 H. & N. L. J. Q. B. 383. 695. (k) Brandon v. McSenry, (1891) 1 [g) Doe V. Wright, 10 A. &E. 763 ; Q. B. 538 ; 60 L. J. Q. B. 448 ; £e Siddle T. Grantham Canal Nav. Co., Deerhurst, 60 L. J. Q. B. 411. 16 M. & W. 882. (I) Fer cur. Vooght v. Winch, 2 B. {h) SieeSaywardY.Sibbans,i'Ea.st, & Aid. 663. See^Josi!, p. 810. 310 ; De Medina v. Grove, 10 Q. B. (m) Arnison v. Smith, L. R. 40 C. 152. D. 567; 68 L. J. C. 335. (i) Ex p. Kibble, L. R. 10 Gh. 373 ; (m) Bacon, Abr. tit. "Execution " 44 L. J. B. 63 ; Exp. Banner, L. R. (B) ; 2 Blackst. Com. 341 : WilUams' 17 C. D. 480 ; 51 L. J. C. 300 ; Exp. Executors, 8th ed. 1010. 142 CONTRACTS OF RECOKD. 'P-^Tl. recognizance formerly operated as an immediate charge upon all the lands of the party from the time of enrolment on record ; but by the statute above cited, 27 & 28 Vict. c. 112, s. 1, no judgment, statute or recognizance entered up after the passing of that Act affects any land until such land has been actually delivered in execution (o). A recognizance enrolled takes precedence in the administration of assets after judgment debts, but before contracts under seal (p) ; and money due under it is a debt of record until the recognizance is vacated, as money due from a receiver under recognizance to account {q). Statute Statutes merchant, statutes staple, and recognizances in and statute the nature of a statute staple were acknowledgments of debt s ap e. made in writing before officers appointed for that purpose, and enrolled of record. They bound all the lands which the debtor had at the time of making them ; and execution was awarded upon them upon default in payment without further process or proof. These securities were originally introduced for the benefit of trade by securing debts between merchants, and afterwards became common assurances, but have now become obsolete (r). Detts created by statute. Kemedies. Debts created by statute take their form and incidents from the provisions of the particular statute upon which they are founded: as debts for penalties imposed by penal statutes and made due and payable to an informer or to a party grieved (s) ; debts for tolls payable under statutes (t) ; debts for money received under statutory authority for payment over to others {u). " Where an Act of Parliament creates a duty or obligation to pay money, the money may be recovered by action, unless some provision to the contrary is contained (o) See ante, p. 137. [p] Williams' Ex. supra; see Se Smith, L. B. 2 Ex. D. 47 ; 46 L, J. Ex. 73. (?) Seagram v. Ttick, L. E. 18 C. D. 296; SOL. J. C. 572. ()•) See Bacon, Abr. tit. "Execu- tion" (B.); 2 Blaclist. Com. 160; I'liderJiill v.Deveren.r, 2 Wms. Saund. (s) Girdlestone v. Brighton Aqua- rium, L. K. 4 Ex. D. 107 ; 48 L. J. Ex. 373. m Shepherd v. SiUs, 11 Ex. 55: 25 L. J. Ex. 6. (m) Lloyd V. Burrup, L. E. 4 Ex. 63; 38 L. J. Ex. 25. DEBTS BY STATUTE. 143 in the Act " («). " And where an Act creates an ohligation, Chap. hi. and enforces the performance in a specified manner, it is a general rule that performance cannot be enforced in any other manner" {y). But whether the Act in giving a special remedy excludes the remedy by action, or thereby gives a cumulative remedy, is a question of construction depending upon the terms and general purpose of the Act (z). — A statutory Specialty obligation to pay money is in general a debt by specialty within the Statute of Limitations, 3 & 4 Will. IV. o. 42, s. 3, which prescribes twenty years as the limit for actions of debt upon any specialty {a). Accordingly an action by a railway company against a shareholder for calls, under the Companies Clauses Act, s. 26, was held to be within this statute and limited to twenty years (6). But an action for a penalty under a bye-law of a chartered company was held to be " grounded on a contract without specialty " within the Sta- tute of Limitations, 21 Jac. I. c. 16, and therefore limited within six years (c) . And an action given to a local autho- rity to obtain contribution out of a county fund was held to be an action on the case within the same statute (d). — The Debt for Companies Act, 1862, 25 & 26 Yict. c. 89, s. 16, provides that " all moneys payable by any member to the company in pur- suance of the conditions and regulations of the company, shall be deemed to be a debt due from such company and to be in the nature of a specialty debt." Accordingly, a debt for calls had priority as being a specialty debt in the ad- ministration of the assets of a deceased shareholder (e) ; but there is no debt until a call is made (/). Also the liability [x] Fer cur. Shepherd v. Sills, 11 Ch. 27 ; 60 L. J. C. 680. Ex. 55 ; 26 L. J. Ex. 6 ; Tilson t. (a) Jones t. Fope, 1 "Wms. Saund. Wartcick Gas Co., 4 B. & C. 962; 37; Shepherd y. Sills, WEs.. bo ; 2a Richardson v. Willis, L. R. 8 Ex. 71 ; L. J. Ex. 6 ; post, p. 828. 42 L. J. Ex. 68. {i) Cork % BandonSij. v. Goode, 13 [y) Fer cur. BoeY. Bridges, 1 B. & C. B. 826 ; 22 h. J. C. P. 198. Ad. 859; -H. 151; 54 L. J. Q. B. 515; 442; 30 L. J. C. P. 106; Reussv. see Caughey v. Gordon, L. E. 3 C. P. T'ichsley, L. E. 1 Ex. 342 ; 35 L. J. D. 419; iJo v. 158 CONTRACTS IN WEniNG. Paet I. Evidence to found eqnitable jui-is- diction. suit for specific performance against the purchaser of the estate, evidence was not admitted on his behalf to prove that an exchange of estates, and not a sale, was intended ; such evidence being at variance with the absolute terms of the written contract (/*) . — But where the jurisdiction of equity extends beyond that of law, as in the correction or cancella- tion of contracts, or in enforcing specific performance, evidence of the extrinsic circumstances that call for or oppose the exercise of the jimsdiction becomes necessarily admissible. " It cannot be said that because the legal import of a written agreement cannot be varied by parol evidence, intended to give it another sense, therefore in equity, when once the Court is in possession of the legal sense, there is nothing more to inquire into. Fraud is a distinct case and perhaps more examinable at law; but all the doctrine of the Court as to cases of unconscionable agreements, hard agreements, agree- ments entered into by mistake or surprise, which therefore the Court will not execute, must be struck out, if it is true, that because parol evidence should not be admitted at law, therefore it shall not be admitted in equity, upon the question whether, admitting the agreement to be such as at law it is said to be, the party shall have a specific execution, or be left to that Court, in which, it is admitted, parol evidence cannot be introduced" (i). Extrinsic Extrinsic evidence is admissible for many purposes affect- admissible, ing the validity and obligation of a written contract without varying the contents, and therefore without infringing the To prove^ above general rule : — Extrinsic evidence is necessarily admis- agreement. sible to prove the act of agreement, that is, that the writing was in fact agreed to by the parties as expressing their con- tract (y). In the case of a deed this is proved exclusively by means of the sealing and delivery (/.■) . In the case of simple (A) Croome v. Ledinrd, 2 M. & K. 251. ()■) Thurlow, L. C, Iriiham t. Child, 1 Bro. C. C. 93 ; Eldon, L. C, Townshend v. Stmigroom, 6 Ves. 333 ; Grant, M. R., Jfoollam v. Hcarn, 7 Ves. 219 ; Clnrkc v. Grant, U Ves. 519 ; Croome v. Ledinrd, 2 M. & K. 260. (,/) Bramwell, B., Walce v. ffarrop, 6H. &N. 774; SOL. J. Ex. 277. (A-) See nnte, p. 113; post, p. 263. ADMISSION OF EXTRINSIC EVIDENCE. 159 contracts it may be proved by the signatures of the parties Ch. ly. appended for that purpose ; and in contracts relating to some matters signature is required by statute (/) . Where signature is not required a writing may be proved as the agreement of the parties by some act of acceptance, as where a proposal in writing by one party is accepted and acted upon by the other (»?) . And in such case extrinsic evidence is admissible to prove the act of agreement, and what was the condition of the vyriting at the time of agreement («) . Signature is presumptive evidence of assent to the document Signature, signed ; but the presumption may be rebutted by extrinsic evidence explaining the intention and purpose of the sig- nature : as that the name of a party was signed as agent only, though appearing in the writing as principal, upon an understanding with the other party that he should not be bound as principal (o) ; that an invoice of goods sold was signed as agent only to receive payment for the convenience of the buyer, and not as seller (^j) ; that an agreement was signed by a party in his own right as well as professedly as agent for another party {q). So evidence was admitted to show that a writing purporting to be a contract of sale was signed for a collateral purpose and not as the real contract, and that the price inserted was a merely nominal price pending the ascertainment of the real price (r) ; that an invoice of goods was signed upon a pretended sale in order to protect the goods against creditors (s) ; that a writing purporting to state the terms of sale of a horse was signed as a receipt only,- and therefore did not exclude a parol warranty given at the time of sale {t) ; that the writing was signed as a proposal (I) See post, p. 224. (o) JFake v. Sarrop, 1 H. & C. (m) See ante, p. 151 ; post, p. 185. 202 ; 31 L. J. Ex. 451. Brogden v. Mctrop. Sy., L. E,. 2 Ap. (^j) Solclinij v. Elliott, 5 H. & N. Ca. 666 ; Mellish, L. J., ParJcrr v. 117 ; 29 h. J. Ex. 134 ; see Jones v. South East. Eij., L. E. 2 C. P. D. Eitiledale, 6 A. & B. 486. 421; see Eeuss v. Ficksley, L. R. 1 (q) Young v. Schiller, L. E. 11 Q. Ex. 342; 35 L. J. Ex. 218; post, B. D. 651. p. 233; ReKcw Eberhardt Co., L. E. (r) Rogers v. Hadletj, 2 H. & C. 43 C. D. 118 ; 59 L. J. C. 73 ; Baker Til ; 32 L. J. Ex. 241. V. Yorhs. Fire Ass., (1892) 1 Q. B. 144. (s) Bowes v. Foster, 2 H. & N. 779 ; in) Stewart v. Edrlowes, L. E. 9 27 L. J. Ex. 262. C P. 311 ; 43 L. J. C. P. 204. (*) Allen v. Pinlc, 4 M. & W. HO. 160 C0N111A.CTS IN WRITINO. Part I. Attesta- tion. Attesting witness. Date of agreement. only, which had not been duly accepted (««) ; that an order for goods was signed in pursuance of a previous parol agreement of the terms of sale, and not as containing the contract {x). The signature and execution of a written instrument may be attested by a witness, who signs a form of attestation appended for that purpose ; and in some cases such attesta- tion is required by statute ; where not so required, it may be adopted at the will of the parties (y). The party iu signing attests the writing as his agreement; and the witness in signing attests the signature of the party (z) ; a party cannot himself act as the attesting witness {a) . — It was formerly a general rule of law that in order to prove an attested instru- ment, whether required by law to be so or not, the attesting witness must be called, if possible, to prove the execution {b) ; but by the 0. L. P. Act, 1854, s. 26, it was enacted, that " it shall not be necessary to prove by the attesting witness any instrument to the validity of which attestation is not requi- site ; and such instrument may be proved by admission or otherwise, as if there had been no attesting witness there- to " (c). A deed or writing thirty years old is said to prove itself ; it presumptively requires neither attesting witness nor any other witness to signatures and handwriting {d). Extrinsic evidence is also admissible to show the time of the signature or other act of agreement ; and such evidence is ad- missible though the written agreement itself contains a date. Although a deed under seal purports to have been executed on a stated date, the parties may aver and prove that it was in fact executed on a different date (e). Where two deeds (u) Moore V. Campbell, 10 Ex. 323; 23 L. J". Ex. 310. (x) Lockett V. Nicklin, 2 Ex. 93. [y] See ante, p. 114. (z) Willes, J., Deffell v. White, L. R. 2 C. P. 147. {a) Seal v. Claridge, L. R. 7 Q. B. D. 519; 50 L. J. Q, B. 316. (*) Whijman v. Garth, 8 Ex, 803. See Taylor on Evidence, 5S 1637 — ■ 1643. (o) See Xeat/s Estate, I Jvir. N. S. 222; Craueoiir v. Salter, L. R. 18 C. D. 36 ; Se Sice, L. R. 32 C. D. 35 ; 65 L. J. C. 799. See Bills of Sale Act, 1882, s. 10 ; Se Moulson, 51 L. J. C. 823 ; Ford v. Kettle, L. R. 9 Q. B. D. 139; 51L. J. Q. B. 658. [d) Taylor on Evidence, §§ 74, 75, p. 105, 6th ed. (e) Hall V. Cazeiiore, 4 East, 477 ; see Seffell v. Se/fell, L. R. 1 Prob. 139 ; ante; p. U4 ; post, p. 730. ADMISSION OF EXTRINSIC EVIDENCE. 161 relating to the same matter are dated as executed on the same Ch. rv. day, the Court construes them, as regards priority, according — ^^ — '- to the intention expressed therein ; but if necessary will in- quire which of them was first executed (/) . Extrinsic evidence is admissible to show that a writing, Affreement pui'porting to be a binding agreement, was signed or agreed uponcon- to conditionally, that is, upon terms that it should not operate ^itio"- as a contract until the fulfilment of a stated condition, or the happening of a given event. "It is in analogy with the delivery of a deed as an escrow ; it neither varies nor con- tradicts the writing, but suspends the commencement of the obligation " (g). Accordingly, evidence was admitted to prove that an agreement, which purported to create an immediate tenancy at a certain rent, was signed upon the condition that it was not to take effect until certain repairs were completed ; so that, though the tenant had entered and occupied, the repairs not having been completed, the rent could not be claimed under the agreement (A) . So evidence was admitted to prove that a written agreement to transfer the tenancy of a farm was subject to the condition of the landlord giving his consent ; which was construed as a condition precedent suspending the operation of the agreement and not a condi- tion subsequent in defeasance of it (/). And evidence was admitted to show that an agreement for the purchase of a patent was signed upon the condition of the invention being shown to and approved by a third party (/). — The same principle apphes to bills of exchange and promissory notes as between immediate parties ; and evidence may be given that the bill or note was signed or indorsed and delivered upon condition, in the manner of an escrow, so as not to take effect until the condition is satisfied (k) . But conditions not (/) Gartside v. Silkstone Coll., L. p. 115. E. 21 C. D. 762 : 51 L. J. C. 828. (A) Daeis v. Jones, supra; see Gud- (ff) Fer cur. Wallis v. Littell, 11 genv.Besset, 6 E. & B. 986 ; 26 L. J. C. iB. N. S. 369 ; 31 L. J. C. P. 102 ; Q. B. 36. Davis Y. Jones, 17 C. B. 625 ; 25 L. J. (i) Wallis v. littell, supra. C. P. 91 ; Ft/m v. Campbell, 6 E. & B. {J) Fym v. Campbell, supra. 370 ; 25 L. J. Q. B. 277. See ante, (/.■) Fell v. Iiu/estre, 12 Q. B. 317 ; L. M 162 COMTRACTS IN WRITING. Paet I. expressed in the instrument itself have no operation against an indorsee or transferee taking it for value and without notice (/) . Conditioa Upon the same principle one of the parties may sign an of other '- '■ >- n-j.j.i-vl+'l parties agreement upon the condition that he is not to be bouna until signing. .^ .^ signed by the other party («). Where a charter-party was signed ty the shipowner and returned to the broker in a letter requesting to have the counterpart with the merchant's signature, it was held, the construction of the letter being for the Court, that the contract was conditional upon the counter- part being sent (w) . So where several persons are intended to join in the contract in the same interest, the signature or execution by one of them may from the circumstances of the case be conditional upon the execution by all the others (o) ; as where creditors enter into a composition with the debtor upon the usual understanding that all are to join and be bound by the composition (p) . And where it has been agreed that several persons shall contract as co-sureties for the debt of another and one of them signs upon that understanding, but the others refuse ; though he may be bound at law unless he sufficiently express the condition of his signature, yet he would be relieved in equity ; as it is against the intended agreement that he should be solely responsible without any right of contribution (g). Extrinsic ^^ agreement may be made contemporaneously with a evidence of ^ ^ *^ ± j collateral written Contract as part of the transaction, but without being incorporated with it ; such agreement is then collateral to the written contract and may be proved by extrinsic evidence, Abrey v. Ciifx, L. R. 5 C. P. 37 ; 39 Co., L. R. 7 C. D. 789. See post, L. J. C. P. 9. See Bills of Exchange p. 379. Act, 1882, s. 33. (p) Eeay v. Richardson, 2 C. M. & [l) Byles on Bills, 96, 146, 9th ed. ; E. 422 ; see Soyd v. EnuJ, 1 H. &N. ante, p. 155. 938 ; 26 L. J. Ex. 164 ; Diiiui y. (m) Moore Y. Camphell, 10 Ex. 323 ; Wijman, 81 L. J. Q. B. 623. 23 L. J. Ex. 310. See Ahhrtony. {g) Eldon, L. C, Unikr/iU! y. Sor- Arehor, L. R. 14 Q. B. D. 1 ; 54 wood, 10 Ve.s. 225 ; Eraris v. Brcm- L. J. Q. B. 12. ridge, 8 D. M. & G. ir2 ; 23 L. J. C. (n) Furness v. Meek, Tt L. J. Ex. 334 ; see Cumberlcriex. Laws,,,,, I 0. B. 34 ; post, p. 185. N. S. 709 ; 26 L. J. C. P. 120 ; Cooper [o) Latch V. Wedlah; 11 A. & E. v. F.ruus, L. R. 4 Eq. 45 ; 36 L. J. 959. See Luke v. Kensington Hotel C. 431. ADMISSION OF EXTRINSIC EVIDENCE. 168 " No doubt, as a rule of law, if parties enter into negotiations Ch. iv. affecting the terms of a bargain, and afterwards reduce it . '■ — into writing, verbal evidence will not be admitted to intro- duce additional terms into the agreement ; but, nevertheless, what is called a collateral agreement, where the parties have entered into an agreement for a lease or for any other deed under seal, may be made in consideration of one of the parties executing that deed ; unless, of course, the stipulation con- tradicts the terms of the deed itself" (r). Thus, where in Agree- merits negotiation for a lease the lessor promised that he would kill collateral down the game during the term, but refused to^ make it a special provision in the lease, which reserved the game to the lessor ; and in consideration of the promise the lessee executed the lease; it was held that there was a binding contract collateral to the lease, which might be separately proved and enforced (s). So where the lessor of a house promised that if the lessee would take a certain lease he would do certain repairs and provide certain furniture ; it was held that the promise operated as a distinct contract collateral to the written lease, and might be proved by parol evidence (i) . And a representation made by a lessor upon granting a lease, that he was restricted from building on the adjacent land was enforced against him upon parol evidence, as being a contract collateral to the lease (««). — A collateral agreement in variance of the terms of a written contract is also available in equity in answer to a claim for specifio per- formance of the contract according to the written terms; and the plaintiff must submit to the collateral agreement or have his claim dismissed (x) . Thus in the case of a contract for a (r) Mellish, L. J., Ilrskine v. (t) Angell v. Duke, L. E. 10 Q. B. Aieane, L. K. 8 Ch. 766 ; 42 L. J. 0. 174 ; 44 L. J. Q. B. 78 ; Mann v. 851 ; per cur. Lindley t. Lacey, 17 J^unn, 43 L. J. C. P. 241. C. B. N. S. 678 ; 34 L. J. C. P. 7. (k) Figgott t. Siratton, I D. P. & J. See Maule, J., Canham v. Sarry, 16 33 ; 29 L. J. C. 1 ; Spicer v. Martin, C. B. 597 ; 24 L. J. 0. P. 100 ; and L. R. 14 Ap. Ca. 12 ; 68 L. J. 0. see ante, p. 154. 309. (s) Erskine t. Adeane, L. E. 8 Ch. {x) Clarke v. Grant, 14 Ves. 519 ; 766 '; 42 L. J. C. 849 ; Morgan y. London and JB. Jig. v. Winter, Cr. & Griffith, L. E. 6 Ex. 70 ; 40 L. J. Ph. 61 ; see Bear v. rerity, 38 L. J. Ex. 46. C. 486 ; Vouillon v. States, 25 L. J. C. 875. M 2 164 CONTRACTS IN WRITING. P^i^T I- lease, with a collateral agreement to pay a sum of money as premium for the lease, it was held that the lessee was entitled to claim the lease only upon the terms of paying the pre- mium, and not otherwise (y). Extrinsic Extrinsic evidence is admissible to show that a contract in usage oi Writing was made subject to a usage or custom of the trade, or business to which the contract relates ; impliedly binding the parties to certain usual or customary terms and conditions not mentioned in the writing. " In 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 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" (s). The effect of the terms in- troduced by usage is the same as if they were written in the contract («). The principle is not confined to mercantile contracts, but is applicable to any contract as to which there is a usage, and whether it be a simple contract in writing or Usage re- a contract under seal (6). "But in these cases a restriction is contract, established that the evidence received must not be of a par- ticular which is repugnant to or inconsistent with the written contract. Merely that it varies the apparent contract is not enough to exclude the evidence, for it is impossible to add any material incident to the written terms of a contract without altering its effect more or less." " To fall within the exception of repugnancy the incident must be such as, if expressed in the written contract, would make it insensible or inconsistent" (c). Thus where by an indenture of appren- {y) Martin -v. Pycroft, 2 D. M. & (4) Parke, J., Smitl, v. Wilson, 3 G. 785; 22 L. J. C. 94. See Wood B.&Ad.728; TiielrrY. linger L. R. V. Scarth, 2 K. & J. 33. 8 Ap. Ca. 508 ; 52 L. J. C 941. (z) PercurBroionY. Byrne, 3 E. (c) Per c„r. Brown v. Byrne, supra ; & B. 715; 23 L. J. Q. B. 316; a.udi Hum frey x. Dale, ll ScB '^U- Sutton V. Warren, 1 M. & W. 475. 26 L. J." Q. B. 140 ; see Tuehcr y. la) SeeSeywortkv. jLniffht,n C.B. linger, supra ; Barrow t. Si/ster L N. S. 298; 33 L.J. C. P. 298. R. 13 Q. B. D. 635. ADMISSION OF EXTBINSIC EVIDENCE. 165 ticesliip the master covenanted to supply "necessaries" to an Ch. iv. ^^ -^ Sect. II. apprentice, he was not allowed to assert a usage to charge for certain of the necessaries, which he had so covenanted to supply gratis (d). "It is also an elementary proposition, that a custom of trade may control the mode of performance of a contract, hut cannot change its intrinsic character. It may regulate as extrinsic what is done in the market where the contract does not provide otherwise. It cannot overrule what is agreed upon between the parties, whether intrinsic or extrinsic "(e). The intention of the parties to exclude a usage of trade, or Intention to vary its effect, must appear in the writing ; parol evidence eluding is not admissible for that purpose. Thus, where by custom of usage^'*'"'^ the trade a certain allowance is made to the buyer of goods for warehouse rent, parol evidence is not admissible to show that he agreed for an allowance differing from the trade allowance (/). On the other hand the contract may expressly include a usage it would not otherwise be subject to ; as in the case of a bill of lading containing the stipulation, "average to be adjusted according to British custom," which is a custom differing from the general usage (r/). — Whether the written contract is so inconsistent with the usage as to exclude the evidence, is a question of construction, and therefore a question for the Court and not for a jury ; the province of the jury being restricted to finding the fact of the written contract and the fact of the usage (A). But where the written contract is consistent with the usage, it must further be found as a fact that it was made vsdth reference to the usage, under all the circumstances ; for, if the contract is not made in the ordinary course of the trade or business in which the usage prevails, the usage presumptively does not attach (i) . (d) Abbott V. Jiates, 45 L. J. C. P. 19 ; post, p. 177. 117. (A) Farker v. Ibbetsoii, 4 C. B. N. S. (e) "Willea, J., Mollett v. liobinson, 346 ; 27 L. J. C. P. 236 ; Hutehison L. R. 5 C. P. 656 ; 39 L. J. C. P. v. Bou-ker, 5 M. & W. 535 ; see post, 295. p. 184. (/) Fmvkes t. Lamb, 31 L. J. Q. B. (i) Pollock, C. B. , Allan v. StincUus, 98. 1 H. & C. 132 ; 31 L. J. Ex. 313 ; [g) Stewart v. West India Steamship Byles, J., Farker v. Ibbetson, supra; Co., L. K. 8 Q. B. 88 ; 42 L. J. Q. B. Clayton v. Grcgson, 6 A. & E. 302. 166 CONTRACTS IN WRITING. Usage con- trary to law. Pabt I. Under a reference to arbitration of "all disputes arising on the contract," it was held that to inquire into an alleged usage affecting the terms of the contract was beyond the jurisdiction of the arbitrators ; being an inquiry as to what was the contract, and not a dispute arising on the contract (A-) . Usage must in all cases be consistent with law ; no usage can be set iip as binding by contract which is contrary to the general law : as a usage for the debentures of a company to be treated as negotiable (/) ; or a usage for the consignee of goods under a bill of lading to have the value of missing goods deducted from the freight of the goods delivered (m) . Nor can usage ever prevail against a statute {»). — ^Usage must also be reasonable : an alleged custom that a landlord is not liable to pay for the tillages left by an outgoing tenant, but that compensation can only be claimed against an in- coming tenant, was held unreasonable and void {o) . — A usage need not be immemorial; it is sufficient if its existence is proved with certainty, and that it is presumptively known to the contracting parties (p). The custom of merchants m certain matters, as the negotia- merchants. tion and othcr incidents of bills of exchange, is ascertaiaed by the decisions of the Courts, and judicially noticed without proof, and thus becomes part of the general law ; and evidence of particular usages of merchants, however extensive, is not admissible to the contrary (q). And it is said "that a mer- cantile custom may be so frequently proved in Courts of law, that the Courts will take judicial notice of it, and it becomes part of the law merchant " (/•) . Merchants dealing in a particular trade or business are The cus' torn of Notice of usage. [Jc] JTutchcson v. Eaton^ L. R. 13 Q. B. D. 861, Fry, J., dissentknte. [I) Crouch V. Credit Fo72eier, L, K. 8 Q. B. 374; 42 L. J. Q. B. 183. (m) ilci/er v. Dresser, 16 C. B. N. S. 646; 33 ij. J. C. P. 289. («) Neihon v. James, L. R. 9 Q. B. D. 546 ; 51 L. J. Q. B. 369 ; Per;// v. Barnett, L. E. 15 Q. B. D. 388 ; 54 L. J. Q. B. 466. (o) Bradbnrnc v. Foleij, L. E,. 3 C, P. D. 129 ; 47 L. J. C. P. 334. (p) Per cur. Crouch v. Credit Fonder, L. R. 8 Q. B. 386; Jessel, II. R., Tucker v. Ziiiffer, L. R. 21 C. D. 34; see Fxp. FoweU, L. R. 1 C. D. 501; 45 L. J. B. 100. [q) Per cur. Fdie v. Fast India Co., 2 Burr. 1228 ; L. Campbell, Braiidao T. Harnett, 3 0. B. 530 ; per eitr. Goodwin V. Subarts, L. R. 10 Ex. 346. See Bills of E.xoliansje Act, 1882, 45 i: 46 Vict. c. 61, s. 97 (2). (r) Per cur. F.e p. Poicell, L. R. 1 G. D. 506; 45 L. J. B. 100. ADMISSION OF EXTRINSIC EVIDENCE. 167 presumed to know the general usages of the trade (s) . And Ch. IV. a person dealing through a broker on the Stock Exchange is '. — 1 impliedly bound by the rules of the Exchange, as regards the agency of the broker and the contracts made by the broker on his behalf ; so far as such rules are reasonable and agree- able to law {t). But a person by employing a broker to effect marine insurances at Lloyd's, is not impliedly bound by usages of that house which are not known to him ; because they are the usages of a particular house only and not general usages of the business («). If with knowledge of the usages he employs a broker there, he is bound by them (») . So a usage of money-lenders in the City of London to pledge a customer's securities for the general balance of their own account with their banker, is not binding upon the customer without notice of the usage (;r). Subject to the above principles evidence of usage is admitted Usages to introduce additional terms and conditions into a written tSma'and contract, as in the following cases : — In sales of goods, a '=°''•) Wiggle5ivorthY.Dallison,T)ougl. Bee Mutton y. Warren, supra. 201 ; 1 Smith's L. C, 9th ed., 569 ; 170 CONTRACTS IN WRITING. Common carriers. P-^itT I. leave the land in the same state as when taken, it was held that a custom to charge for the manure left was excluded {y) ; so where the lease expressly provided that the tenant on quitting should leave the manure on the land, and made no provision for payment (s). By the custom of cultivation the tenant may be entitled to drain the land and charge the landlord with the cost upon quitting («) ; and the tenant may be entitled to pick stones off the land in the customary process of cultivation and to sell them {b). A common carrier employed to carry goods is presumptively subject to the duties and liabilities attached to the employ- ment by the custom of the realm, which is judicially noticed at common law ; as the duty of carrying and delivering all goods offered within a reasonable time and for a reasonable charge, with the liability of insuring the safety of the goods during the carriage (c). And a person who describes his business as carrying for all persons to all parts of the kingdom, in the absence of special agreement, presumptively under- Imikeeper takes the same liabilities as a common carrier (cl) . — Also by general custom judicially noticed, an innkeeper is bound to receive and entertain every person who offers himself as a guest ; provided there is room for him, and provided that he is fit to be received and ready to pay for his entertainment (e). The innkeeper is also bound to take care of the goods of a guest received by him, though not to insure them against accidents ; and he is therefore liable for negligence iu this respect of himself or his servants (/). This liability is now restricted and regulated by the statute 26 & 27 Vict. c. 41 ((/). (!/) Clarke v. Roystone, 13 M. & "W. 752. (z) Moherts v. Barker, 1 C. & M. 808 ; see Mmicey v. JJcunis, 1 H. & N. 21G ; 26 L. J. Ex. 66. (a) Mon^leij v. LufUam, 21 L. J. Q. B. 64. (b) Tucker y. Linger, L. R, 8 Ap. Ca. 508; 52 L. J. 0. 941. (c) Forwards. Pittard, 1 T. R. 27 ; IFyld V. richford, 8 M. & W. 443 ; &ee post, p. 603. id) Per eitr. Seaife \^. Farrani, L. E. 10 Ex. 358 ; 44 L. J. Ex. 36. [e) The Queen v. Symer, L. E. 2 Q. B. D. 136 ; 46 L. J. M. 108 ; S'lndi/s V. Florence, L. E. 3 Q. B. D. 484 ; 47 L. J. Q. B. 700. (/) Ca lye's case, 8 Go. 32 ; 1 Smith's L. C. 105, 6th ed. ; Moryanv. Sarei/, 6 H. & N. 265 ; 30 L. J. Ex. 13i ; see IFolder r. Soulbi/, 8 C. B. N. S. 254 ; 29 L. J. C. P. 246 ; S/rauss v. Voiinty Hotel Co., L. E. 12 Q. B. D. 27 ; 63 L. J. Q. B. 25. {g) See Spice v. Paeon, L. E. 2 Ex. D. 463 ; 46 L. J. Ex. 713 ; Medatcar V. Grand Kotel Co., (1891) 2 Q. B. 11 ; 60 L. J. Q. B. 209. ADMISSION OF EXTRINSIC EVIDENCE. 171 In compensation for -wMch liability the innkeeper has a lien Ch. iv. upon all goods brought by a guest within his care for the amount of his charges for entertaining the guest (A). And by "the Innkeepers Act, 1878," he is now enabled to enforce his lien by selling the goods in the manner therein provided («). — The engagement of a domestic servant is subject to the Domestic custom judicially noticed, that the servant may be dismissed servants, after a month's warning, or upon payment of a month's wages. This custom is held to apply to a head gardener {i) ; to a huntsman (/); not to a governess (m) . And in engage- ments of service in particular trades and businesses, a custom to determine the contract by notice is impliedly incorporated, unless the terms of the contract are inconsistent with the custom («). So with a custom in a particular trade that upon a yearly hiring certain holidays should be allowed (o) . An engagement at a yearly salary, stipulating for an increase at the end of a year, was held not to exclude a custom to determine the hiring by a month's notice at any time(p). Evidence of usage is also admissible to show that words and Usages phrases in a written contract have a special or technical ^rdsaSd meaning in the trade or business to which the contract relates, pi"^ases. differing from the ordinary meaning. " Mercantile con- tracts 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 according to its ordinary import in the world at large ; evidence therefore of mercantile custom and usage is admitted in order to expound it and arrive at its meaning. — Neither in the construction of a oon- (/i) Threlfall v. Boriiicl; L. E. 10 870. Q. B. 210 ; 44 L. J. Q. B. 87 ; Angus (I) KicoHv. Greaves, 17 C. B. N. S. V. McLachlan, L. R. 23 C. D. 330 ; 52 27 ; 33 L. J. C. P. 259. L. J. C. 587; Gordon v. Silber, L. R. (;») Todd v. Kerrick, 8 Ex. 151 ; 25 Q. B. D. 491 ; 59 L. J. Q. B. 22 L. J. Ex. 1. 507. («) Farkerv. Ibbetson, i C. B. N. S. (i) 41&42Viot. c. 38; seeJff/(??(»CT- 346; 26 L. J. 0. P. 236; and see V. Florence, L. R. 3 Q. B. D. 484 ; 47 Johnson v. Blenkinsopp, 5 Jur. 870. L. J. Q. B. 700. (o) The Queens. Stoke-upon-Trent, (/c) Nou'lanY. Ahlett, 2 C. M. & R. 5 Q. B. 303. 54 ; see Johnson y. Blenkinsopp, 5 Jur. (p) Farker v. Ibbetson, supra. 172 COKTRACTS IN WRITING. Paet I. tract among merchants, 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 con- tradicts the written contract; it only ascertains it by ex- pounding the language", (17). Words Accordingly, the term "month" in a written contract, by usage, which prima facie means a lunar month, may be shown by usage of the particular trade or business to mean a calendar month (r) ; and in mercantile instruments, as bills of exchange, a month is taken by the law merchant to mean a calendar month («). So evidence was admitted to show that in a charterparty or in a bill of lading the term " days " was intended to mean working days [t) ; that in a theatrical engagement at a weekly salary during three years, the year meant only that portion of the year during which the theatre was kept open (m) ; and that in a building contract " weekly accounts " meant accounts of day work only, and not of measurement work (a-). — Under a policy of insurance evidence was admitted to show that " any port in the Baltic " included the Grulf of Finland (y) ; and whether " the St. Lawrence " meant the river or the gulf of St. Lawrence (s). A warranty against "particular average" was explained by the usage of underwriters, not to include charges incurred to avoid a loss (ffl) ; or a charge for general average (i) . . Particular [q) Per cur. Brown y. Byrne, 3 E. L. E. 10 Q. B. 346; Laing v. Soll- & B. 716 ; 23 L. J. Q. B. 316; Claxj- way, L. E. 3 Q. B. D. i37; i7 L. J. ton V. Grcgson, 5 A. & E. 302 ; Myers Q. B. 512. V. Sari, 3 E. & E. 306 ; 30 L. J. Q. B. (») Grant v. Maddox, 15 M. & W. 12; Fry, J., Holt v. Collyer, L. E. 737. 16 G. D. 720. (,r) Myers v. Sari, 3 E. & E. 306 ; ()■) Jolly V. Young, 1 Esp. 186 ; 30 L. J. Q. B. 9. Simpson v. Margitson, 11 Q. B. 23; {y) Uhde\. Walters, 3 Camp. 16. Cochcll V. Gray, 3 B. & B. 186 ; but [z) Birrell v. Dryer, L. E. 9 Ap. see post, p. 732. Ca. 345. (s) See Littledale, J., The Queen (a) Kidston t. Empire Ins. Co., L. v. Chawton, 1 Q. B. 250 ; irebh v. E. 1 C. P. 535. Fairmaner, 3 M. & AV. 476. (J) Price \. A\ Ships Ins. Co., (t) Cochran v. Rellier,/, 3 Esp. 121. L. E. 22 Q. B. D. 195; 58 L. J. See Commercial Steam Co. v. Boiilton, Q. B. 269. ADMISSION OF EXTRINSIC EVIDENCE. 173 average upon "com" was explained by usage not to extend C!^-^- to rice (c) ; and a warranty against " iron cargo " was ex- '- — - plained to include steel (li). So with a contract to carry goods excepting " statuary" (e). — The phrases occurring in a charter- party " to load in regular tiirn," and " in turn to deliver," may be explained by the usage of the port (/) ; so also the phrase " arrived in port" (17); and " so near as the ship can safely get" {h) ; and the course of a voyage insured described as from Shanghai to London may be shown by usage to include the overland transit («'). — So with the delivery of goods to a railway company to be carried at "owner's risk"(y). In contracts of sale of goods evidence of usage is admitted Sale of to explain words and phrases descriptive of the goods in the plained by- trade : as « mess pork of Scott & Co." (k) ; " prime bacon " (/) ; ^"^X, °^ " good " barley and " fine " barley (w) ; " best palm oil, in- ferior at a fair allowance " (n) ; " pockets " of hops (0) ; "thousand" of rabbits as meaning one hundred dozen (7-;) ; also such expressions in contracts of sale as " expected to arrive " (g) ; " for shipment in June and July " (r) ; to be paid for in " from six to eight weeks " (s) ; at such price as will realise so much "net cash "(;!). The expressions " more or less," and " about," annexed to the quantity stated in the contract, do not require evidence in explanation, they pre- («) Scott V. Bourdillon, 2 B. & P. L. E. 3 Q. B. D. 195 ; 47 L. J. Q. B. N". R. 213. 131. [d) Hart v. Standard Ins. Co., (i) Towellv. Morton, 2 Smg.l>l.G. L. E. 22 Q. B. D. 499; 68 L. J. 668. Q. B. 284. {I) Yates v. Pym, 6 Taunt. 446. («) Sutton V. Ciceri, L. E. 15 Ap. [m) Hutchison v. Bowker, 5 M. & Ca. 144 ; see Yandtspar v. JJuncan, W. 535. (1891) W. N. 178. (k) Lucas v. Jlristow, 3 E. B. &E. (/) Robertson v. Jackson, 2 C. B. 907 ; 27 L. J. Q. B. 364. 412; Leideman v. SchuUz, 14 C. B. (o) Spicer v. Cooper, 1 Q. B. 424. 38; 23 L. J. C. P. 17; Hudson v. [p) Smith v. Wilson, 3 B. & Ad. Clementson, 18 0. B. 213 ; 25 L. J. 728. C. P. 234. {q) Bold V. Sai/ner, 1 M. & W. 343. (y) Steamship Co. Borden v. Demp- (r) j^Llexandcr v. Vanderzee, L. E. sey, L. E. 1 0. P. D. 654 ; 45 L. J. 7 C. P. 530 ; see Bowes v. Shand, L. C. P. 764. E. 2 Ap. Ca. 455 ; 46 L. J. Q. B. (A) Nielsen v. Wait, L. E. 16 Q. B. 561. D. 67. (s) Ashforth v. Eedford, L. E. 9 (i) Modocamchi v. Elliott, L. E. 8 0. P. 20 ; 43 L. J. C. P. 57. C. P. 649 ; 42 L. J. 0. P. 247. {t) Boden v. French, 10 C. B. 886 ; {j) Leu-is V. Great Western Ily., 20 L. J. C. P. 143. 174 CONTRACTS IN 'WEITING. PaetI. sumptively import In themselves some reasonable limits of allowance to be determined by the Court upon the circum- stances {ii) ; or they may mean merely an estimate of the quantity required for certain work otherwise definitely fixed in the contract («). Evidence of The evidence of experts or skilled witnesses is admissible fnte?p*^et° ^° decipher and explain a written contract, which is written writing. [^ cipher, or in shorthand, or with abbreviations, or otherwise in a manner to be illegible by the Court ; and it may be referred to a jury, upon such evidence, to find the words of the writing (y). It is for the Cornet to read the writing if they can, without putting it to the jury ; and abbreviations and clerical errors which are obvious upon the face of the writing may be supplied and amended by the Court in reading it (s). — The evidence of an interpreter is admitted for translating a contract or words written in a foreign lan- guage ; and the construction of foreign written contracts is for the Court, after taking evidence of the translation, of the technical or peculiar meaning of words, and of the foreign law and foreign rules of construction, as distract matters of fact (ff ) . Foreign Extrinsic evidence of foreign law. Extrinsic evidence is admitted of foreign law, where the parties have contracted with reference to that law. Foreign law is not judicially noticed,' but must be alleged and proved in judicial proceedings as matter of fact by the parties them- selves ; and it must be decided by the Court upon the evidence produced (5) . If alleged and not denied it must be taken to be in fact as alleged (c). "All that can be required of a tri- bunal adjudicating on a question of foreign law is to receive (!() Cross Y. lEglin, 2 B. & Ad. 106 ; see post, p. 712. [x) Tancred v. Steel Co., Xi. H. 15 Ap. Ca. 125, (j/) Taylor on Evidence, \ 1159, p. 980, 8th ed. ; Wigram on Ex- trinsic Evidence, Prop. IV. See Shore v. Wihan, 9 CI. & F. 566 ; Sweet v. Lee, 3 M. & G. 460 ; Bain- tree V. Knichinson, 10 M. & W. 89. (z: See poit, pp. 190, 273 ; Eemon V. Rayu-ard, 2 A. & E. 666, n. (a). (a) Hi Sora v. Phillips, 10 H. L. 0. 62-t ; 33 L. J. C. 129 ; CAateiia,/ v. Brazilian Td. Co., (1891) 1 Q. B. 79 • 60 L. J. Q. B. 295. (b) Kelson v. Bridport, 8 Beav. 527. (c) Per cur. Zloi/dv. Guibcrt, L. R. 1 Q. B. 119; 35 L. J. Q, B. 74. ADMISSION OF EXTBINSIC EVIDENCE. 175 and consider all the evidence as to it which is available, and bond Ch. IV. Sect II. fide to determine on that, as well as it can, what the foreign '■ — 1 law is " id). " A party who relies upon a right or an exemp- tion by foreign law is bound to bring such law properly before the Court and to establish it in proof, otherwise the Court, not .being entitled to notice such law, must proceed according to the law of England " {e). — By the 24 Vict. c. 11, " an Act to afford facilities for the better ascertainment of the law of foreign countries," it is provided that in an action in any of the superior Coiu-ts, the Court may remit a case with questions for the opinion of a foreign Court, for the ascertain- ment of the law of the foreign State, where there has been a convention with that State for the purpose. The certificate of an ambassador in England of a foreign country is admis- sible evidence of the law of that country (/). The House of Lords as Court of Appeal from judgments of English, Irish, and Scotch Courts, takes judicia;l notice of the law of those countries without evidence [g). " It is open in all cases for parties to make such agreement Contracts as they please as to incorporating the provisions of any foreign porating law with their contracts. What is to be the law by which faw'^"^ a contract, or any part of it, is to be governed or applied, must always be a matter of construction of the contract itself, as read by the light of the subject-matter and of the sur- rounding circumstances" (A). "It is generally agreed that Lex loci the law of the place where the contract is made is ^j/'^wd," that which the parties intended, or ought to be presumed to have adopted as the footing upon which they dealt, and that such law ought therefore to prevail in the absence of circum- stances indicating a different intention, as for instance, that the contract is to be entirely performed elsewhere, or that the subject-matter is immoveable property situate in another (d) Fer cur. Castrique v. Imrie, if) I. ff. Oldenburgh, 53Tii. J.Vrdb. L. R. 4 H. L. 414 ; 39 L. J. C. P. 46. 350. See Godard v. Gray, h. R. 6 (y) Cooper v. Cooper, L. E. 13 Q. B. 139 ; 40 L. J. Q. B. 62 ; Condia Ap. Ca. 88 ; Ld. Selborne, Zi/ell v. T. Murietta, L. R. 40 C. D. 543 ; Be Kenned,/, L. E. 14 Ap. Ga. 449. Queensland Age>icy, {1?,%\)W.'S.20&. (A) Per cur. Jacobs v. Credit Lyon- {e) Fer cur. Lloyd y. Guibert, L. R. nais, L. E. 12 Q. B. D. 599 ; 53 L. 1 Q. B. 129 ; 35 L. J. Q. B. 80. J. Q. B. 158. 176 CONTRACTS IN WRITING. P-^itJ I- country, and so forth; whioh latter, though sometimes treated as distinct rules, appear more properly as exceptions to the more general one, by reason of the circumstances indicating an intention to be bound by a law different from that of the Lex fori, place where the contract is made" («). — The remedy is regu- lated in all oases by the law of the country in which proceedings are taken, or lcxfori{li) ; and the rules of the court as to pro- cedure and evidence apply in that country only and not beyond. Construe- — A contract drawn in the technical language of the law of a contracts foreign country presumptively intends that it should be con- cation^f '' strucd and operate according to the law of that country (/). foreign jj^^^ « j^f ^jj^g contract is to be carried out in whole or in part in another country, that part of it which is to be carried out in that other country, unless something appears to the con- trary, is taken to have been intended to be carried out according to the laws of that country" (»?). A contract drawn in a foreign country and language, in a special English form, may show the intention of being an English contract {n) . And a contract under seal made in a foreign country, where such contract is not specially recognized, is presumptively attended in an English Court with all the incidents of that class of contract (o). A person in taking shares in a foreign company becomes subject to the foreign law in all matters incident to the company {p). The contract may expressly exclude aU foreign law as in the contract of a seaman engaging not to sue for wages in any foreign port {q) ; and a foreigner may («) Fer cur. Zlot/dy. Guibcrt, L. R. (/) Duncan v. Cannan, 23 L J C 1 Q. B. 122; 36 L. J. Q. B. 76; 265; Chamberlain t. Ifapier, L. K. SoUnson v. Bland, 2 Burr. 1077 ; 1 15 C. D. 611 ; 49 L. J. C. 628 ; see W. Bl. 256 ; Fergusson v. Fiiffe, 8 CI. Cohen v. South Ristern Rj/., L. R. 2 & P. 121; Jacobs v. Credit Lyonnais, Ex. D. 253; Bradford v. Young, supra ; Re Missouri Steamship Co., L. L. R. 29 C. D. 617. R. 42 C. D. 321 ; 58 L. 3. C. 721 ; (m) Esher, M. R., Chatenay v, Gibbs V. Soeiete des Metaux, L. R. 25 Brazilian Tel. Co., (1891) 1 Q B 83 Q. B. D. 399; 59 L. J. Q. B. 510. 60 L. J. Q. B. 297. (k) Be la Vega v. Vianna, 1 B. & (h) Smallpagc's case, L, R. 30 0. D Ad. 284 ; Trimbey v. Vignier, 1 Bing-. N. C. 151 ; Leroux v. Broion, 12 C. B 801 ; 22 L. J. C. P. 1 ; post, p. 252 Meijer v. Dresser, 16 C. B. N. S. 646 : 33 L. J. C. P. 289: Alnirez v. Prieto, 16 C. B. N. S. 578 ; 33 L. J, C. P. 262 ; Ex p. Mclbourn, L. R, 598; 55 L. J. C. 116 (o) Alliance Bank v. Carey, L. R, 5 C. P. D. 429 ; 49 L. J. C. P. 781. {p) Vallce V. Dumergue, 4 Ex. 190 Cnpin V. Adam.'son, L. R. 1 Ex D 17; 45 L. J. E.^. 15. {q) Johnson t. .l[at!iiehon, 3 Camp, 6 Ch. 64 ; 40 L. J. B. 25. 44 ; Giener v. Meyer, 2 H. Bl. 603 ADMISSION OF EXTRINSIC EVIDENCE. 177 contract to be subject to the jurisdiction of English law as to Ch. iv. the construction of the contract and as to the service of legal '■ — - process (r). The Courts have prima facie jurisdiction over persons in this country in respect of rights arising out of foreign contracts ; though the construction and application of the foreign contract is regulated by foreign law (s). A charter-party is presumptively to be construed and Charter- applied, as to loading, according to the law and usage of the port of loading [t) ; as to delivery, according to the law and usage of the port of delivery {ii) ; as to arrival in port, ac- cording to the custom of the port regulating the time and place at which a ship is considered to have arrived {x). A. charter-party of a foreign ship, ia the absence of other indica- tion of intention, is presumptively regulated by the law of the country to which the ship belongs (y) . So a contract for delivery of goods abroad must be performed according to the law of the place of delivery (z). — In marine insurance a Marine general average loss is presumptively to be adjusted at' the port of discharge, according to the law and usage of that place (a) ; but the contract may expressly stipulate for adjustment according to a particular law or custom (b). insurance. Extriasic evidence is necessarily admissible to show the Extrinsic evidence f apply the contract. facts and circumstances with reference to which the written appiy^the ° (r) Tharsis Sulphur Co. v. Soe. des 3 Adm. 437; 41 L. J. Adm. 23; The Metaux, 68 L. J. Q. B. 435. August, (1891) Adm. 328 ; 60 L. J. (s) Buenos Ayres My. v. Q. N. Ey. Adm. 57. of Buenos Ayres, L. E. 2 Q. B. D. (z) Rosseter v. Cahlmann, 8 Ex. ,210 ; 46 L. J. Q. B. 224. 361 ; 22 L. J. Ex. 128 ; see Cohen v. {t) Cuthhert v. Oumming, 10 Ex. S. E. My., L. B. 2 Ex. D. 263 ; 46 815 ; 24 L. J. Ex. 311 ; JSudson v. L. J. Ex. 417. JSve, L. K. 3 Q. B. 412; 37 L. J. (a) Simonds v. -White, 2 B. & C. Q. JB. 166. See Eay v. JField, L. E. 805 ; Harris v. Scaramanga, L. E. 7 10 Q. B. D. 241 ; 62 L. J. Q. B. 17. C. P. 481 ; 41 L. J. C. P. 170 ; Mavro («) Mobertson v. Jackson, 2 C. B. v. Ocean Marine Ins. Co., L. E. 10 412; see Meyer y. Dresser, 16 C. B. C. P. 414 ; 44 L. J. C. P. 229. See N. S. 646 ; 33 L. J. C. 289. Attwood v. Sellar, L. E. 4 Q. B. D. {x) Steamship Co. Norden v. JOemp- 363 ; 49 L. J. Q. B. 615. sey, L. E.,1 C. P. D. 654 ; 45 L. J. (J) Stewarts. West India Steamship C. P. 764. Co., L. E. 8 Q. B. 88 ; 42 L. J. Q. B. (jf) LloydY. Guibert, L. E. 1 Q. B. 191 ; ante, p. 165 ; HendricksY. Aus- 115; 35 L. J. Q. B. 74. See Greer iralian Ins., L. E. 9 0. P. 460; 43 V. Boole, L. E. 5 Q. B. D. 272 ; 49 L. J. C. P. 188. See Grcir v. Boole, L. J. Q. B. 463 ; The Batria, L. E. supra. L. N 178 CONTRACTS IN WRITING. P-^^'r I- contract was made, for the purpose of properly construing and applying the words (J). Accordingly it is said, "we not only may, but must, in the case of every contract, have evidence who are the parties to it, and what are the circum- stances to which it relates" ( 356 ; Coleridge, C. J., Mai/ee v. (q) Saunderson x. Piper. 5 Bino- ZavelL L. E. 9 0. P. 113 ; 43 L. J. N. C. 425 ; ante, p. 183. SeeGaT- ^- ^' 131' rard v. Zeiois, L. E. 10 Q. B. D. 30, CONSTKUCTION OF CONTRACTS IN WRITING. 187 of obliteration, as lead pencil, a preliminary question may Ch. iv. arise, whether the part capable of obliteration is intended to remain part of the document, or merely as matter for further deliberation {r) . Words deleted and initialed form no part of the contract, and cannot be read for the purpose of con- struing it(«). — In deeds and other legal documents, also in Punctua- Acts of Parliament, it is not usual to insert stops or marks of punctuation ; and the Court must read them with such stops as will give effect to the intention appeariag upon the whole instrument {t) . If, however, stops, or capital or italic letters, or inverted commas, or any significative marks are introduced, they must be allowed their proper effect in construing the instrument (u). So the punctuation and other marks in original wills may be referred to for the purpose of construing the meaning (ic) . Some rules and maxims are laid down in general terms for Constmc- the construction of written contracts (y) : — The leading rule cordingto of construction is that a written contract is to be construed in ^^f^'^ the ordinary literal meaning of the words used. "In all contracts where the meaning of language is to be determined by the Court, the governing principle must be to ascertain the intention of the parties through the words they have used. This principle is one of universal application " (z) . The words used are presumptively to be understood in their plain ordinary and popular meaning ; technical words used in technical subjects are to be understood in their proper technical meaning ; and mercantile terms used in mercantile contracts are to be understood in their ordinary mercantile meaning («). And such meaning must be applied, though it {r) Francis V. Grover, 5 Hare, 39; (y) Sheppard's Touch, by Preston, see Lucas v. James, 7 Hare, 419 ; p. 88. I.ff. Adams, L. R. 2 Prob. 367 ; 41 (z) Fer cur. McConnel y. Murplii/, L. J. P. 31. L. E. P. C. 218 ; L. Wensleydale, (») Inglis v. Buttery, L. K. 3 Ap. Grey v. Pearson, 6 H. L. C. 61 ; 26 Ca. 552. L. J. C. 481 ; L. Blackburn, Cale- (c) Kenyon, C. J., -Doe v. Martin, donian Fy.Y. North JBritishSy., L. R. 4 T. E.. 65. 6 Ap. Ca. 131. (;() SeeGauntlettv. Carter, 17Beav. (a) Tcr cur. Sohertson v. French, 4 686 ; 23 L. J. C. 219. East, 135 ; Mallan v. May, 13 M. & («) HawMns on WUls, 7. W. 517; Pollock, 0. B., Caine v, 188 CONTRACTS IN WRITING. I'Ai'T I. may in fact not be the meaning contemplated by the parties at the time of making the contract ; unless a different mean- ing can be drawn from other parts of the contract (b). — Accordingly a contract for the supply of goods terminable on the "insolvency" of the buyer, was construed according to the ordinary meaning of insolvency, that is, an inability in fact to pay debts ; and not the technical meaning of in- solvency by statute (e). A covenant in a separation deed that the wife should not "associate" with a named person was construed literally to include all intercourse whatsoever, and not to be restricted to criminal intercourse (rf). A contract stipulating against carrying on a business "in London," was construed in the proper literal meaning of "The City of London;" there being nothing in the contest, or in the usage of the business, requiring a different mean- ing (e). A warranty in an insurance against "iron" cargo was construed in the ordinary generic meaning of "iron," as including steel (/). Upon the same principle, a proviso for re-entry in a lease expressed to take effect upon breach of any of the covenants " hereinafter contained," was construed literally as applicable only to covenants following the proviso, though there were not any such in the lease, and not to preceding covenants (g) . A lease expressed to be deter- minable in seven or fourteen years, "if the parties should so think fit," was construed literally as determinable only by the consent of both parties (A). And a deed of assignment of a debtor's business upon trust to carry on and sell the business, and to divide the profits and proceeds of sale amongst all the creditors in proportion to the amount of their debts, was construed, according to the natural meaning of the language, not to admit of any resulting trust for the Horsfall, 1 Ex. 522 ; Fry, J., Salt v. 417. Collt/er, li. R. 16 C. D. 720 ; 50 L. J. {e) Jlallan r. Mai/, 13 M & W C. 311. See ante, p. 171. 611 ; and see mid.w'n x. Tooth L r' (J) Westbury, L. C, Great IFestern 3 Q. B. D. 46 ; 47 L. J. Q B 18 ■ Jii/. V. Soiis, Ij. R. i H. L, 659 ; see JUn-elt r. Dri/er, L. R. 9 Ap Ca' 34o' Barton Y. Fitzgerald, 16 East, 530. (/•) Hart v. Standard In^ L R [c] Parker v. Gossage, 2 C. M. & 22 Q. B. D. 499 ; 5S L. J. Q 'b 284' R. 617; see Siddkcombe t. Bond, 4 [g] Doe v. Godwin, i M. & S. 265. A. & E. 332. (/() Fou-elt v. Tranter, 3 H. & c" {d) Dormer Y. Knight, 1 Taunt. 458; 34 L. J. Ex. 6. See posi!, p. 287. CONSTRUCTION OF CONTKACfS JN WEITING. 189 debtor in respect of a surplus produced by the profits and Cn. iv. sale over the amount of the debts in full («') . — By the same '. — '- rule, upon a question arising as to the meaning of the word "or" in a contract, it is to be ooostrued in its ordinary and proper sense, as a disjunctive particle ; unless the context or the facts to which the contract is applied require it to be construed as a conjunctive particle equivalent to "and"; or as merely identifying the connected terms (A). A concurrent leading ^rule of construction, which may Construe- sometimes operate exceptionally to the former, is that the cording to particular words of the contract are to be construed with §ftention. reference to the intention drawn from whole ; as expressed in the maxim " rerba intentiofii debent inservire" (I). " It ought to receive that construction which its language will admit of and which will best effectuate the intention of the parties, to be collected from the whole of the agreement ; and greater regard is to be had to the clear intention of the parties than to any particular words which they may have used in the expression of their intent "(w). — According to this rule cove- Operative nants, releases and other operative parts of deeds are to be stricted by construed with reference to the recitals of the object and '^^''i*^'^- intention, unless the words used admit of no doubt as to the operation (n). "If the recitals are clear and the operative part is ambiguous, the recitals govern the construction. If the recitals are ambiguous and the operative part is clear, the operative part must prevail. If both the recitals and the operative part are clear, but they are inconsistent with each other, the operative part is to be preferred "(o). A deed of conveyance may thus be restricted in operation by the recital of what is intended to be conveyed {p) ; and a release in (i) Smith V. Cooke, (1891) Ap. Ca. 6 M. & S. 12. 297 ; 60 L. J. C. 607. (m) Per cur. Ford v. £eech, 11 Q. B. {/c) Bold T. Sayner, 1 M. & ~W. 866 ; see Eeseltine v. Singers, 1 Ex 343 ; JElKoit t. Turner, 2 C. B. 446 ; see Tielens t. Hooper, 5 Ex. 833. (I) Willes, 0. J., Parkhurst v Smith, Willes, 332; EUenborough C. J., Barton v. Fitzgerald, 15 East, 541 ; and see Sicklemore v. Thistleton [n) Per cur. Walsh v. Trcvanion. 15 Q. B. 750. (o) Esher, M. R., Fx p. Fawes, L. E. 17Q. B. D. 286. {p) Sookev. Lord Kensington, 2 K. 190 CONTRACTS IN WKITING. Paet I. Correction of mis- takes. False de- scription. general terms may be restricted in operation to the debts recited {q) . So the express restrictions in some of the cove- nants in a deed, as to the persons or acts covenanted against, may be construed to extend to other covenants which in terms appear unrestricted, in favour of the general intention of the whole instrument and in order to preserve the eilect of the restrictions (r). A covenant for quiet enjoyment in absolute terms was construed as impliedly subject to the right of the lessor to enter and do repairs under another covenant of the lease (s) . It may be referred to this rule that obvious mistakes in a written instrument, such as clerical or grammatical errors, misspelling, misnomer and the like, may be read as corrected by the context {t) ; also words obviously omitted may be sup- plied {n) ; and words which are obviously repugnant or in- sensible may be rejected (v). — If the subject of contract be sufficiently identified by name or otherwise, an additional description which is simply false and inapplicable may be rejected; as expressed in the lasixims falsa demonstratio iioii nocet cum de corpore constat, aild Veritas nominis tollit error em demonstrationis ; maxims which also have frequent application in the construction of wills (.-r). So where a person is accu- rately named or identified, with an additional false descrip- tion (y) . But if the question is between construing the words as a restrictive limitation or as a false description, the former & J. 753 ; 25 L. J. G. 795 ; Joiner v. Jennet; L. E. 1 Eq. 361 ; 35 L. J. C. 329. (q) PayUr v. Somersham, 4 M. & S. 423 ; and see post, p. 797. (r) Per cur. Browning v. Wright, 2 B. & P. 13 ; Miidv. Marshall, 1 B. & B. 319 ; see Hesse v. Stevenson, 3 B. & P. 565; Jlouell V. Michards, 11 East, 642 ; Barton v. Filzgcrnhl, 15 East, 530 ; Young v. Eaincock, 7 C. B. 340. (s) Saner v. Bilton, L. R. 7 C. D. 824 ; 47 L. J. C. 267. (i!) See post, p. 273. (m) Coles V. Mulme, 8 B. & C. 568 ; post, p. 273. See Mcllor v. Daintree, L. R. 33 C. D. 198 ; 56 L. J. C. 33 ; Ex p. Hewer, L. R. 21 C. D. S71 ; 51 L. J. C. 904. (v) Furnivally. Coombes, 5 M. cS: G-. 736 ; Cheshire Lines v. Zeicis, 50 L. J. C. P. 121. See J. g. Boehm, (1891) P. 247; 60 L. J. P. 80. (x) Bacon's Maxims, reg. 25, Law Tracts, p. 102 ; .Va„cc v. Larell, L. R. 9 C. P. 107; 43 L. J. C. P. 131; Se Boulter, L. R. 4 C. D. 241 ; 46 L. J. B. 11 ; Travers x. Bhmdell, L. R. 6 C. D. 436 ; Re Bright-Smith, L. R. 31 CD. 314; 55 L. J. C. 365; Early v. Mathbone, 57 L. J. C. 652 ; see post, p 275. {!/) Garland v. Bercrlei/, L. R. 9 C. D. 213; 47 L.J. C. 7l'l ; Re Lyon's Trusts, 48 L. .T, C. 245 ; Bute v. Ryder, L. R. 27 C. D. 196 ; 53 L. J. G. 1090, CONSTKUCTION OF CONTRACTS IN WRITING. 191 construction prevails ; according to tlie maxim, non accipi Ch. iv. debent verba infakam demonstrationem, qucB competunt in limi- '- '- tationem veram (s) . A bill of sale of " all the household goods and furniture of every kind and description whatsoever in the said house, more particularly mentioned and set forth in an inventory of even date " was held not to he " a case of false demonstration, but a restriction of the operative words ; so that nothing passed except what was specified in the inventory " (a). Upon the same principle if several deeds or writings are Several connected as parts of one contract, they are to be construed construed with reference to one another and to the general intention (b) . ^^^ '^^' Thus, a bond and the condition of defeasance are to be con- strued together as one contract (c) ; and a lease and counter- part, being in the same terms or intended so to be, make but one deed in law, and a mistake or ambiguity in one may be read as corrected by the other {d). So with contracts by letter, each letter must be construed with reference to the whole correspondence (c) . — Consequently, if several documents construed together operate as a bill of sale, it is held that they must be duly registered under the Bills of Sale Acts (/). And if a collateral contract construed together with a regis- tered bill of sale operates as a defeasance of the latter, the bill of sale is void because not complete {g). It is a rule of construction that general words are to be con- (z) Bacon's Maxims, reg. 13, La"w Stucley v. Bailey, 1 H. & N. 405 ; 31 Tracts, p. 76 ; per cur. Morrell v. L. J. Ex. 483. Fisher, 4 Ex. 604 ; Magee v. lave!/, (/) iijD. Odell, L. R. 10 0. D. 76; supra ; Me Boddington, L. E. 25 C. D. 48 L. J. B. 1 ; Manchester, S. ^- L. 685 ; 63 L. J. 0. 475. Ry. v. North Central Wagon Co., (a) Wood V. Rowdiffe, 6 Ex. 407 ; L. E. 13 Ap. Ca. 554 ; 68 L. J. C. see German v. Chapman, L. R. 7 C. D. 219 ; see Re Watson, L. R. 25 Q. B. D. 271 ; 47 L. J. C. 260. 27 ; 69 L. J. Q. B. 394 ; Madell v. (4) See ante, p. 149 ; Montague v. Thomas, (1891) 1 Q. B. 230 ; Beckett Tidcombe,2Veim. 619; Rostv. Marsh, v. Tower Assets Co., (1891) 1 Q B L. E. 16 C. D. 395 ; 50 L. J. C. 287 ; 638 ; 60 L. J. Q. B. 493. Jessel, M. R., Re Phcenix Bessemer (g) 41 & 42 Vict. o. 31, s. 10 (3) ; Steel Co., 44 L. J. C. 683. Counsell v. London ^ W. Loan Co., (c) CohsY.Sulme, 8 B. & C. 568. L. R. 19 Q. B. D. 512; 66 L. J. (d) See ante, p. 120 ; Burchell v. Q. B. 622 ; Monetary Advance Co. v. Clark, L. R. 2 C. P. D. 88 ; 46 L. J. Cater, L. R. 20 Q. B. D. 785 ; see C. P. 115 ; post, p. 274. Carpenter v. Been, L. R. 23 Q. B. D. (e) See ante, pp. 14, 149 ; and see 566. 192 CONTKACTS IN WRITING. Paet I. General "words re- stricted to things ejusdem strued in application to the particular purpose for wHcli they are used ; according to the maxim verba generalia restringuntur ad habilitatem rei velpersonm (h). — Hence general words follow- ing an enumeration of specific things are to be construed as in- cluding and restricted to things ejusdem generin with those before specially enumerated ; a rule which is frequently exemplified in the construction of statutes {i), and of wills {k). Accord- ingly, a company constituted for the purpose of carrying on the business of " mechanical engineers and general contrac- tors " was held to be restricted in their powers of con- tracting, to matters connected with the business of mechanical engineers (/). A policy of marine insurance stating amongst perils insured, " restraint of kings, princes, and people of what nation, condition, or quality soever," was construed as including people collectively or their ruling powers only, and not individual people (/»). A policy in the ordinary form against perils of the sea, and " all other perils and losses that should come to the said goods, ship, &c.," is construed to cover other cases of a like kind with perils of the sea : as the ship being destroyed by another ship in mistake for an enemy (m) ; and in the case of a steamship, it covers the perils of navigation by steam, as an explosion of the boiler (o). ISo " perils of the seas, pirates, and aU other perils," was held to include a seizure of the ship by passengers on board, as being either a direct act of piracy or an act ejusdem generis (fj). Construc- tion in It is a rule of construction, concm'rent with the above, that [h) Bacon's Maxims, Reg. 10 ; Cleasby, B., Gunnestadv. Price, L. R. 10 Ex. G9 ; 44 L. J. Ex. 45 ; Marget- son V. Glynn, (1892) "W. N. 9. (i) Sctndiman y. Breach, 7 B. & C. 97 ; The King v. Whitnash, 7 B. & C. 696 ; Kitchen v. Shaw, 6 A. & E. 729 ; The Queen v. NeviU, 8 Q. B. 452 ; The Queen v. Silvester, 33 L. J. M. 79. {k) King v. George, L. R. 5 C. D. G27 ; 46 L. J. C. 670 ; Chapman v. Chapman, L. R. 4 0. D. 800 ; 46 L. J. C. 104. (I) Ashbury Ma'tlway Carriage Co. V. Siche, L. R. 7 H. L. 653 ; 44 L. J. Ex. 185. (m) NesUit v. Lushington, 4 T. R. 783. {n) Cullen v. Butler, 6 M. & S. 461. (o) West India Tel. Co. v. Some and Colonial Ins., L. R. 6 Q. B. D. 61 ; 60 L. J. Q. B. 41 ; see Thames and Mersey Ins. v. Hamilton, L. R. 12 Ap. Ca. 484; 66 L. J. Q. B. 626. (p) Palmer t. Xaylor, 10 Ex. 382 ; 23 L. J. Ex. 323 ; see Jones v. Kiehot.inii, 10 Ex. 28 ; 23 L. J. Ex. 330 ; Ktrunvort v. Shepard, 1 E. & E. 447; 28 L. J. Q. B. 147. CONSTRUCTION OF CONTRACTS IN -WEITINO. 193 between different meanings that is to be preferred which Ch. iv. tends to support the contract ; according to the maxim, Verba '- — ' ita sunt intelUgenda, ut res magis valeat quam jjereat {q). Thus, validity? the expression "from the day of the date," which is ^rw;^ facie exclusive of the day, may be construed as including it, if necessary to render the contract valid (r) . A statement of the consideration of a contract which might be construed in the past or present tense, as in consideration of "having agreed " or " having advanced," &c., will be taken as referring to a transaction simultaneous with the promise in order to support it, and not to a past transaction which would defeat it (s). Where the parties named in a deed covenanted in a manner which purported to bind them in a corporate capacity as churchwardens and overseers, it was held that inasmuch as they had no corporate capacity to contract to the effect intended, the deed must be construed as binding them per- sonally ; and an express proviso against any personal liability was rejected as repugnant to their covenant (i). — ^And " it is a general rule, that whensoever the words of a deed, or of the parties without deed, may have a double intendment, and ^he one standeth with law and right, and the other is wrongful and against law, the intendment that standeth with law shall be taken ; " as expressed in the maxim, Ea est accipienda inter- pretatio quce ritio caret (u). A rule of construction, subordinate to those above mentioned, Words ,..p ••iiji j_ construed requires that an ambiguity of expression is to be taken most strictly strongly against the party using it ; as expressed in the maxim, pf^on Verba fortius accipiuntur contra proferentem. This rule is the ^^^ last to be resorted to, and is never to be relied upon but where all other rules of construction fail. It is applicable, (?) Bacon's Maxims, Tracts, p. 46; see ante, pp. 8, 181. Sheppard's Touchstone, 87 ; Mans- (0 Furnivall v. Coomhes, 6 Bing. field, C. J., Goodtitkx. BaiUij, Cowp. N. C. 736 ; 6 Scott, N. K. 522 ; ante, 600. p. 190 ; and see Williams v. Hath- (r) Fitgh v. Suite of Leeds, Cowp. moay, L. R. 6 0. D. 544. 714; TTilkinson v. Gaston, 9 Q. B. (w) Co. Litt. 42 a; Bacon's Maxims, 137 • Watson Y. Pears, 2 Camp. 296. Tracts, p. 47 ; Kay, J., Millsr. Dun- Is) Baigh v. Brooks, 10 A. & E. ham, (1891) 1 Ch. 590 ; 60 L. J. C. 309 ; Goldshede v. Suan, I Ex. 154 ; 367. L. O 194 CONTRACTS IN WRITING. Pabt I. according to its purport, only to such words as can be attri- buted exclusively to the one party, and not to words that are the common language of both parties («). Thus, a guarantee for the supply of goods contained in a letter written by the surety to the creditor was construed most strongly against the writer, as constituting a continuing guarantee and not con- fined to one occasion only {y). A policy of life insurance, which is ordinarily prepared by the insurance office in the form of a deed poll, is construed most strongly against the company ; and a policy expressed to be made upon the basis of a declaration of particulars, and subject to the condition that if any statement in the declaration was untrue the policy should be void, was construed to refer in the condition only to statements intentionally untrue, and not to statements merely incorrect (z) . But the risk in an insurance being accepted upon the description given by the insured, who is required to give a full and accurate description, the policy in that respect is construed most strictly against the insured («) . Appiica- This rule is therefore chiefly applicable in construing grants, grants. pleadings, and other instruments, in which the words may be imputed to the grantor or to the one party only (6). Accord- ingly, a distinction is taken between an indenture and a deed poll, for the words of an indenture executed by both parties may be considered as the words of both ; but in a deed poll, executed only by the grantor, they are the words of the. grantor only (c). And " though the indenture contains the language of both parties, in the granting part the words are those of the grantor, which are to be taken most strongly against himself ; " and therefore the habendum may be used to qualify the general terms of the grant {d) . Also the covenants (x) Bacon's Maxims, reg. 3, Tracts, Thornton y. Adams, 5 M. & S. 40. pp. 42, 46; Sheppard's Touchstone, As togrants, seeWilles, J., TTUliams 87, 88 ; 2 Blackst. Com. 380. v. James, L. R. 2C. P. 581 ; 36 L. J. (ij) HargreavcY. Smee, 6Bmg. 244. C. P. 259 ; Jessel, M. E., Taylor v. (z) Fowkesv. Manchester and London St. Selcns, L. E, 6 D 270- 46 Ass., 3 B. & S. 917 ; 32 L. J. Q. B. L. J. C. 857. 1°3., „. „ „ ., „ W Co. Lit. 230b; 2 Blackst. Com. (a) Btrrell v. Drtjer, L. E. 9 Ap. 380. Ca. 345 (i) Co. Lit. 303 b; 10 Co. 69 a, 1 C.'&M.'cV/. Bishop of Salisburifs case; Bayley, J., (d) Per cur. JTolmidffc v. Stenard, CONSTRUCTION OF CONTRACTS IN WRITING. 195 ' of the grantor are to te taken most strongly against himself, Ch. IV. due regard being paid to the intention as collected from the '- ^ whole context of the instrument (e) . But with written contracts, the expressions of which are Contracts agreed to by both parties, and cannot be imputed to the one common more than to the other, the rule finds no application ; and it parties, seems rather that an ambiguity is to be construed most strictly against the promisee and in favour of the liberty of the promiser ; for to the extent of such construction only can it be said with certainty that the promiser has agreed to be bound ; and beyond that, any ambiguity patent upon the face of the instrument would be void of effect. Accordingly " where a stipulation is capable of two meanings equally con- sistent with the language employed, that shall be taken which is most against the stipulator and in favour of the other party " (/). The condition of a bond is construed in favour of the obKgor (g) . Restrictive conditions of sale are construed in favour of the purchaser (A) . And "generally speaking, where there axe several ways in which the contract might be performed, that mode is adopted which is the least profitable to the plaintiff, and the least burthensome to the defendant " (i) . — Upon the same principle an exception from an absolute Exceptions promise is to be construed strictly, and extends only so far as strictly, it is expressed with clearness and certainty. Thus, the excep- tion in a bill of lading of loss by " thieves " was construed to apply only to thieves from without and not to thieves within the ship who were under the control of the master (J) . A stipulation in a charter-party that deck cargo should le carried " at merchant's risk," was held to except only the liabilities of the shipowner as carrier, but not a claim 'for general average for the jettison of deck cargo (k). Upon the (e) Sheppard'a Touchstone, p. 166 ; (/i) Knight-Bruce, V.-C, Seatoii v. Eldon, L. C, Browning v. Tl^right, 2 Mapp, 2 Coll. 0. C. 562. B. & P. 22; Bayley, J., Barton y. {i)Ma,ule, J. ,Cockiu>-nY. Alexander, Fitzgerald, 15 East, 546. 6 C. B. 814. (/) Fer cur. McConnel v. Murphy, (/) Taylor v. Liverpool Steam Co., L. E,. 5 P. C. 219 ; Brett, M. R., L. R. 9 Q. B. 546 ; 43 L. J. B. 205. Burton v. English, L. R. 12 Q.B.D. (k) Burton v. English, L. R. 12 Q. 220 ; 53 L. J. Q. B. 135. B. D. 218 ; 53 L. J. Q. B. 133 ; see [c/) Per cur. Butler v. Wigge, 1 Foi/al Exchange Co. v. Di.i(m,'L.'R. 12 Wms. Saund. 66. Ap. Ca. H ; 66 L. J. Q. B. 266. 02 196 CONTKACTS IN WKITIKG. Paet I. same principle an exception from an absolute grant is con- strued strictly against the grantor {I). Construc- tive cove- uants and contracts. It is a principle of construction that " any words in a deed or written contract which show an agreement to do a thing make a contract. It is always matter of construction to dis- cover what is the sense and meaning of the words employed hy the parties — in some cases it is discovered from one single clause ; in others it is only to be made out by the comparison of different and perhaps distant parts of the same instrument. But after the intention and meaning of the parties is once ascertained, and the agreement is once inferred from the words employed in the instrument, all difSculty which has been encountered in arriving at such meaning is to be entirely disregarded. The legal effect and operation of the covenant whether framed in express terms, or whether the covenant be matter of inference and argument, is precisely the same ; and an implied covenant, in this sense of the term, differs nothing in its operation or legal consequences from an express cove- nant" (m). Thus, if it be agreed between A. and B. that B. shall pay A. a sum of money /or his land, and both parties seal the agreement, there is a covenant by A. to convey the land, for "agreed" is the word of both(«). And in general, a deed in which "it is agreed and declared" that property shall be settled or dealt with in a certain manner is con- strued as a covenant by all the parties executing, accord- ing to their several interests, that the provisions of the deed in regard to the property shall be carried out(o). (0 Sheppard'a Touch. 100; 10 Co. 106 b; per cur. Cardigan v. Armitage^ 2 B. & C. 207 ; BuJkn y. Doming, 5 B. & C. 842. But see BramweU, B., Folei/ T. Fletcher, 3 H. & N. 781 ; 28 L. J. Ex. 106 ; Servey Bathurst v Stanley, L. E, i C. D.'281 ; 46 L. J, C. 162. (>«) Per cur. Williams v. Bnrrcll, ] C. B. 429 ; Sheppard's Toucli. p. 162 and see L. Blackburn, EussiH v Watts, L. E,. 10 Ap. Ca. 611 ; Momj- ptnny v. Monypenny, 9 H. L. C. 114; 31 L. J. C. 269 ; Brookes v. Drysdale, L. E. 3 C. P. D. 52. (n) Pordage v. Cole, 1 "Wms. Saund. 320. See per cur. Flderton v. Jlmmens. 6 C. B. 175. (o) Wood, V.-C, Willonghby v. Middleton, 2 J. & H. 344 ; 31 L. J. C. 683 ; Jessel, M. E., Dau'cs v. Tred- well, L. E. 18 C. D. 359 ; Ee Be Eos' Trusts, L. E. 31 C. D. 81 ; 65 L. J. C. 73; per cur. Farrall v. Silditeh, 5 G. B. N. S. 854 ; see Tomig v. Smit!,, L. E. 1 Eq. 180 ; Webb's Trust, 46 L. J. C. 769. CONSTRUCTION OP CONTRACTS IN WRITING. 197 Upon this principle a simple acknowledgment of a debt in Ch. iv. a deed under seal prima facie imports that it must be paid '- '- and therefore a covenant to pay it ; but if it appears to be made for a special purpose, as a mortgage or security or trust, the effect will not be extended beyond the purpose intended (/7). So an agreement to sell a business upon the terms of the buyer paying the seller one fourth part of the earnings of the business annually during four years was con- strued to import a contract by the buyer to continue the business during the four years (?).— In leases, a covenant by Covenants the lessee to repair the demised premises " the said premises being previously put in repair " by the lessor, imports a covenant by the lessor to put the premises into repair (r). And a covenant " that the lessee shall repair, provided that the lessor shall allow timber " imports a covenant by the lessor to allow timber (s) . A covenant by the lessee to " keep " premises in repair imports putting them in repair (i^). A covenant to plough and cultivate the demised premises, " ex- cept the rabbit warren and sheep walk," was held to import a covenant not to plough the latter (is). And a covenant by the tenant " that he shall at all times during the term fold the flock of sheep which he shall keep upon the de- mised premises upon such parts where the same have been usually folded," was held to import a covenant to keep a flock of sheep upon the premises and fold them there {x). — " But it must be clear that the words are intended to { p) Courtney v. Taylor, 6 M. & Gr, 851 ; Marryai v. Marryat, 28 Beav, 224 ; Ii-ens v. Sims, 24 L. J. C. 249 Adey v. Arnold, 2 D. M. & G. 432 Isaacson v. Sarwood, L. R. 3 Ch 225; 37 L. J. C. 209; Jackson v North Eastern Ey., L. E. 7 C. D 673; 47 L. J. C. 303; Matthew v Forwood, L. R. 1 Ap. Ca. 256; 47 L. J. H. L. 396 ; Ee Eailway Ap- pliances Co., L. K. 38 C. D. 597 ; 57 L. J. C. 1027; Samlyn y. Wood, (1891) 2 Q. B. 488 ; 60 L. J. Q. B. 734. (r) Cannock v. Jones, 3 Ex. 233. (s) Sheppard's Touch. 162. Northern Ins., L. R. 9 C. D. 80 ; 47 {t) Payne v. Saine, 16 M. & W. L. J. C. 562. 541 ; see Saner v. Silton, L. R. 7 C. {q) Mclnttjre v. Beklur, 14 C. B. D. 815 ; 47 L. J. C. 267. N. S. 654 ; 32 L. J. C. P. 254 ; Tele- (m) St. Albans v. Ellis, 16 East, graph Despatch Co. r. McLean, L. E. 35? ; and see Stevinson's case, 1 Leon. 8 Ch. 658 ; see Beswick v. Swindells, 324. 3 A. & E. 868 ; Exp. Maclure, L. R. {x) Webb v. Flummer, 2 B. & Aid. 6 Ch. 737 ; 39 L. J. C. 685 ; Sope v. 746 ; and see Shrewsbury v. Gould, 2 Giibs, 47 L. J. 0. 83 ; Shodes v. B. & Aid 487. 198 CONTRACTS IN WRITING. Part I. Covenant imported in recital. operate as an agreement, and not merely as words of con- dition or qualification" {y). A covenant by the lessee not to assign the demised premises without the consent of the lessor, " such consent not being arbitrarily withheld," is construed, not as importing a covenant by the lessor against withholding his consent arbitrarily, but only as a conditional covenant of the lessee (s). And an assignment of a lease, subject to the payment of the rent and the performance of the covenants contained in the lease, does not import a covenant by the assignee ; who is impliedly liable to indemnify the assignor only so long as he remains in possession as assignee (a). The terms of a recital in a deed may import a covenant. Thus, where a lease, after reciting an agreement that the lessee should pull down an old building and erect a new one, contained an express covenant by him to keep and leave such new building in repair, it was held that there was a con- structive covenant by the lessee to erect the building according to the recital {h) . A recital in a composition deed, that the debtor had agreed to pay a given composition to all his creditors, was held to amount to a covenant on which a creditor might sue for his composition (c). — But " the recital of an agreement does not create a covenant where there is an express covenant to be found in the witnessing part relating to the same subject matter " (d). And " the Court ought to be cautious in spelling a covenant out of a recital of a deed ; because that is not the part of a deed in which covenants are usually expressed" (e). Covenants " A Covenant in law is an agreement which the law infers («/) Fer cur. Wolveridffe v. Steward, 1 C. AM. 657. (z) Treloar v. Bicf^e, L. R. 9 Ex. 151 ; 43 L. J. Ex. 95. See Si/de v. Warden, L. E. 3 Ex. D. 72 ; 47 L. .T. Ex. 121 ; SearY. Souse Property Soc, L. R. 16 C. D. 387 ; SO L. J. C. 77 ; Marrowv. Isaacs, (1891) 1 Q. B. 417 ; 60 L. J. Q. B. 179 ; eeepost, p, 555. (a) Woheridge v. Steward, supra ; see Crouch v. Trogonning, L. K. 7 Ex. S8 ; 41 L. J. Ex. 97 ; post, p. 1059. (A) Sampson v. Eastcriij, 9 B. & C. 505 ; 6 Bing. 644. (c) Brooks V. Jennings, L. E. 1 C. P. 476. (rf) Jessel, M. R., Sau-es v. Trcd- well, L. R. IS C. D. 359 ; Young v. Smith, L. R. 1 Eq. 180; Webb's Trust, 46 L. J. C. 769. (f) Per eur. Farrall v. Si/ditch, 5 C. B. N. S. 854 ; Bartktt v. Hodgson, 1 T. R. 42. CONSTRUCTION OP CONTRACTS IN WRITING. 199 or implies from the use of certain words having a known Ch. iv. legal operation in the creation of an estate, so that, after they have had their primary operation in creating the estate the J^J^/^ ™ law gives them a secondary force, by implying an agreement on the part of the grantor to protect and preserve the estate so by those words already created" (/). Thus at common law the word " give," the appropriate word of feoffment or conveyance of a freehold estate implied in law a warranty or covenant for title (g) . But this covenant was taken away by statute 8 & 9 Vict. c. 106, s. 4, enacting " that the word ' give,' or the word ' grant ' in a deed shall not imply any covenant in law in respect of any tenements or hereditaments." — In a lease by deed the words "demise," "let," or any equivalent operative words sufficient to make a lease for a term of years, imply a covenant in law for title, and for the quiet enjoyment of the demised premises during the term {/>). But an express covenant to the like effect supersedes or quali- fies the implied covenant, according to the maxim, expressum facit cessare taciturn ; and it is usual for the lessor by express covenant to limit the liability to his own acts (;) . A covenant in law is implied upon the part of the lessee from the words " yielding and paying " used in the reservation of rent (Ji). A covenant in law, as the covenant for quiet enjoyment Limitation implied in the word " demise," is limited to the estate of the covenants, lessor and ceases with the determination of that estate ; there- fore on a demise for years by a tenant for life, which is deter- mined by his death, no action can be maintained on the covenant in law against the executor of the lessor (/) ; and on a demise from year to year by a lessee for years, no action can be maintained on the covenant in law for ejectment by ,(/) Per cur. Williams v. Burrell, I (i) Merrill v. Frame, i Taunt. 329 ; C. B. 429, citing Co. Lit. 139 b. Line v. Stephenson, 5 Bing. N. C. (g) Co. Lit. 384 a; Noke's case, 4 183 ; 7 Scott, 69; see Spencer v. Co. 81a; Shepp. Touch, by Preston, Marriott, 1 B. & C. 457; Besleij v. 181, 184. Beshy, L. E. 9 C. D. 103. (A) lb. ; per cur. Hart v. Windsor, {k) Knoli, L. C, Hollis y. Carr, 2 12 M. & W. 85 ; Brett, J., Mostyn v. Mod. 92 ; 1 Wms. Saund. 241 c, West Mostyn Coal Co., L. R. 1 C. P. n. (d) ; Vyvyan v. Arthur, 1 B. & C. D. 152 ; 45 L. J. C. P. 401 ; Adams 410. See post, p. 1044. V. Gihney, 6 Bing. 656. (J) Swan v. Strausham, Dyer, 267 a; Adams v. Gihney, 6 Bing. 656. 200 CONTRACTS IN WRITING. Paet I. Covenants impUed under the Convey- ancing Act. the reversioner upon the expiration of the lease (m) . "Whereas a covenant in fact, though arising by construction only, has no such implied limitation, but presumptively covers the whole term demised (m). Also the liability of the lessee upon mere covenants in law is limited to his retaining the privity of estate with the lessor, and ceases upon an assignment of the lease to another person ; an express or constructive covenant continues according to its terms notwithstanding such assign- ment (o). By the Conveyancing Act, 1881, 44 & 45 Yict. c. 41, s. 7, it is enacted that — (1.) " In a conveyance there shall, in the several cases in this section mentioned, be deemed to be in- cluded, and there shall in those several cases by virtue of this Act be implied, a covenant to the effect in this section stated." The section proceeds to set out at length the covenants for title, quiet enjoyment, further assurance, &c., which are to be implied in the several cases respectively, of purchase, lease, mortgage, settlement, &c., as therein mentioned (p). {m) Tenfold v. Aliliott, 32 L. J. Q. B. 67. (n) Williams v. Burrell, 1 C. B. 402; Lock v. Furze, 19 C. B. N. S. 96; 34 L. J. C. P. 201. (o) Walker's Case, 3 Co. 22 a ; see Auriol T. Mills, 4 T. K. 94 ; 1 Wms. Saund. 241 c, Thursiy v. Plant ; Swansea v. Thomas, L. E. 10 Q. B. D. 48 ; 52 L. J. Q. B. 340. [p) See Se Sauyer and Baring's Contract, 53 L. J. C. 1104. 201 Chapter V. THE STATUTE OF FEAUDS. Sect. I.— CONTRACTS WITHIN THE STATUTE. PAGE The Statute of Frauds, sections affeoting contracts 201 Leases — lease by deed — agreement for lease 202 Promise by executor to answer out of his own estate .... 205 Promise to answer for debt, default, or miscarriage of another 206 Agreement upon consideration of marriage 210 Contract or sale of interest in land 212 Contract not to be performed within a year 218 Contract for the sale of goods of the value of 10? 220 The enactments of the Statute of Frauds, 29 Car. II., c. 3, The which affect contracts are the 1st, 2nd, 3rd, 4th, and 17th (in of Frauds, the Revised Statutes 18th) sections : — S. 1. " For prevention of many fraudulent practices which are commonly endea- voured to be upheld by perjury and subornation of perjury, be it enacted, — that all leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments made or created by livery of seisin only or by parole, and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorised by writing, shall have the force and effect of leases or estates at will only, and shall not either in law or equity be deemed or taken to have any other or greater force or effect, any con- sideration for making any such parole leases or estates, or any former law or usage to the contrary notwithstanding." — S. 2. " Except nevertheless all leases not exceeding the term of three years from the making thereof, whereupon the rent 202 STATUTE OF FRAUDS. Paet I. reserved to the landlord duiing such term shall amount unto two third parts at least of the full improved value of the thing demised." — 8. 3. "And moreover that no leases, estates, or interests, either of freehold or terms of years, or any un- certain interest not being copyhold or customary interest of, in, to or out of any messuages, manors, lands, tenements, or hereditaments shall be assigned, granted or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting, or surrendering the same, or their agents thereunto lawfully authorised by v^riting, or by act and operation of law." S. 4. " 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 promise to answer for the debt, default or miscarriages of another 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 agree- ment 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." S. 17. " 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 -nTiting of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." Leases. The sections 1, 2, 3, relate primarily to the creation and transfer of estates and interests in land, a subject which does not fall within the scope of this work. They are here noticed CONTRACTS WITHIN THE STATUTE. 203 because they include leases, which operate by way of contract Ch. v. between landlord and tenant, besides demising the land. '—^ Also these sections require formalities which are for the most part similar to those of the 4th and 17th sections, and they are so far subject to the same construction. By s. 1, all leases are required to be put in writing and Lease ty signed by the parties making the same ; except, by s. 2, leases not exceeding the term of three years from the making thereof, whereupon the rent reserved amounts unto two third parts at least of the full improved value. And by the statute 8 & 9 Vict. 0. 106, s. 3, " a lease required by law to be in writing of any tenements and hereditaments shall be void at law unless made by deed." Leases made by deed under the latter enactment do not require to be also signed under the former (a) . — Leases not exceeding three years from the making Lease not thereof, within the above exception of s. 2, are held to be three ™^ thereby also excepted from the 4th section of the statute, y^^^- which requires writing and signature for contracts concerning interests in land ; such leases may therefore still be made as at common law without deed or writing {h) . The exception includes all leases which do not necessarily exceed the term of three years ; a lease which may last for less than three years, though it may last longer, is within the exception (c). It includes leases for a term to commence at a future time, provided the term does not extend beyond three years from the making of the lease (d). A lease for a term of less than three years, with a right in the lessee by giving notice to continue it beyond three years, is within the exception (e). A lease which is ineffectual as such, because not made by Agreement deed, may operate as an agreement for a lease and will be so construed, if capable of that construction ; it may thus support (a) Cooch V. Goodman, 2 Q. B. 580 ; C. 121. Aveline v. Whisson, 4 M. & G-. 801. [d) Byley v. Sicks, 1 Strange, 651 ; ib) Edgey. Strafford, 1 0. & J. 391 ; per cur. Edge v. Strafford, 1 C. & J. Bolton V. Tonilin, 6 A. & E. 856. 396 ; Bolton v. Tomlin, supra. (c) Cotton, L. J., Ex p. Voisey, re (e) Hand v. Hall, L. R. 2 Ex. D. ■ •■ L. R. 21 0. D. 464 ; 52 L. J. 365 ; 46 L. J. Ex. 603. 204 STATUTE OF FRAUDS. PaktI. an action for not accepting or not granting the lease, or for any other breach (/) ; or an action for specific perform- ance (g). And since the Judicature Acts have given the same remedies in all Divisions of the Court, a tenant entitled to specific performance of an agreement for a lease stands in the same position as to rights and liabilities as if the lease had been executed (/«) . The agreement may also serve to regu- late the conditions of a tenancy subsisting in fact upon an entry and occupation under it, though not effective in creating the term of years agreed upon («'). — But an agree- ment for a lease must satisfy the requirements of the 4th section of the Statute of Frauds in regard to 'writing and signature, as being a contract concerning an interest in land ; or, it may be, an agreement not to be performed within a year ; whether the lease do or do not exceed the term of three years within the exception of the 2nd section. " The effect of the Statute of Frauds, as far as it applies to parol leases not exceeding three years from the making, is this, that the leases are valid, and that whatever remedy can be had upon them in their character of leases may be resorted to ; but they do not confer the right to sue the lessee for damages for not taking possession " (k) . And where a parol agreement is made for such a lease, and a tenancy is created by entry and payment of rent, the agreement may regulate the terms and conditions of the tenancy, though as a mere parol agreement it could not be enforced (/). (/) Sondv. Sosling, 1 B. &S. 371 ; 50 L. J. C. P. 121. 30 L. J. Q. B. 227 ; EoUasm^. Leon, (A) Jessel, M. E., Walsh v. Lons- 7 H. & N. 73 ; 31 L. J. Ex. 96 ; see dale, L. R. 21 C. D. 14 ; 52 L. J. C. Stratton v. Fettit, 16 C. B. 420 ; 24 2 ; Lotvther r. Heaver, L. R. 41 C. D. L. J. C. P. 182 ; Drury v. Mac- 264 ; 58 L. J. C. 485 ; see Allhusen namara, 5 E. & B. 616 ; 25 L. J. Q. B. v. Brooking, 63 L. J. C. 622 ; Coats- 5 ; Stranks v. St. John, L. R. 2 C. P. worth v. Johnson, 55 L. J. Q. B. 220. 376; 36 L. J. C. P. 118; per cur. (j) Tress v. Savage, 4 E &B 36- Tideij V. Mollett, 16 C. B. N. S. 298 ; 23 L. J. Q. B. 339 ; Mar/in v Smith 33 L. J. C. P. 237. L. R. 9 Ex. 50 ; 43 L. J. Ex. 42'; {g) Far/cer v. Taswell, 2 D. & J. see Tooket- t. Smith, 1 H. & N. 732. 559 ; 27 L. J. G. 812 ; see Broicne v. {k) Fer cur. Edge v. Strafford, 1 C. TVarner, 14 Ves. 156; King's Lease- & J. 391. holds, L. R. 16 Eq. 521 ; Wood v. {V) Bolton v. TomVui 5 A & E Beard, L. R. 2 Ex. D. 30 ; 46 L. J. 856. Ex. 100 ; Cheshire Lines Co.-y. Lewis, CONTRACtS WITHIN THE STATUTE. 205 Section 4. Special promise hy executor or administrator to Ch. v. ansircr damages out of his own estate. The executor or administrator of a deceased person, as Special such, is liable to answer damages in respect of the liabilities executor. of the testator or intestate only to the extent of the assets which come to his hands, to be administered in due course ; and a promise to pay, as executor, is merely an acknowledg- ment of his liability in that character, and does not bind him de bonis propriis, that is, out of his own estate. But he may give a special promise to answer such damages out of his own estate ; and such promise must satisfy the requirements of the statute, in addition to the necessary conditions of a binding contract (ni). — The promise must be made upon a valid consideration ; and forbearance by a creditor of the deceased to sue the executor would form such a considera- tion (w) . A promissory note given by executors in the form : "as executors we severally and jointly promise to pay, etc., on demand, with interest," was held to render the executors liable de bonis propriis ; because it operated as an admission of assets, and also because the payment of interest, which was not a liability of the testator's estate, imported corre- sponding forbearance as a consideration (o). — An executor or Promise to administrator cannot be charged with the payment of a legacy ordistibu"- or distributive share as a debt, the proper remedy being ti™ share, by a suit for the administration of the estate ; and a special promise to pay out of his own estate must satisfy the require- ments of the statute and must also be made upon a valid consideration (p). Forbearance to sue for a legacy is a suf- ficient consideration for a promise by the executor to pay the amount de bonis propriis (q). If the executor admit to the {m) Sann v. Hughes, 7 Bro. P. C. (o) Childs t. Mmiins, 2 B. & B. 550 ; 7 T. E. 350 ; Fhilpot v. Briant, 460 ; see Ridout y. Bristow, 1 C. & J. 4 Bing. 717 ; 1 Wms. Saund. 211 (2), 231 ; Serle v. Waterworth, 4 II. & "W. Forth V. Stanton; Williams' Exe- 9; Nelsony. Serle, ib. 195. outers, 8tli ed. 1783. (p) DeeTts v. Strutt, 5 T. E. 690 ; («) 2 Wms. Saund. 137 b, Barber Jones v. Tanner, 7 B. & C. 542; see V. -Fo^; Williams' Executors, 8th ed., Fhillips v. Hewiton, 11 Ex. 699 ; 25 supra ; Jones v. Ashburnham, 4 East, E. J. Ex. 133. 455. (?) Davis v. Seyner, 2 Lev. 3 ; and see Decks v. Strutt, 5 T. E. 693. aunther. 206 STATUTE OF FRAtTDS. Pabt I. legatee that he has received the money and holds it for his use, he may he charged upon such admission with a debt for money received, or upon an account stated (r) ; but it seems that the admission, implying a promise to pay, must be made in a form to satisfy the statute. Section 4. Special promise to answer for the debt, default or miscarriages of another person. Promise to There must be a debt or liability of another person vs^hich the debt of promise answers for ; it is not sufficient that the promise is made for the benefit of another, or that the consideration passes to him, if he is not also liable {s). Thus, a promise to pay the debt for goods sold to another or for work done upon his credit is within the statute ; but a promise to pay for goods or work supplied to another upon the credit of the promiser only is not within the statute, because there is no debt of another {t). A promise to pay for goods supplied to an infant, not being necessaries, is not within the statute, because the infant is not liable (ii). And the statute does not apply to a debt for which the promiser himself is liable, though the payment of it may exonerate another {x). Upon the same principle a warranty by an agent of his authority to contract a debt or liability for another, as by ordering goods or work on his account, is not within the statute, because it only guarantees that the principal is bound, not that he wUl pay the debt (y) . And the engagement of an agent with a del credere commission, by which he guarantees the perform- ance of contracts made for his principal, is held not to be within the statute, though it may result in payment of the debt of another (s). (»■) -See ante, pp. 96, 101. & E. 627 ; Mountstephen y. Lakeman, (.f) L. Selborne, Lakeman^. Mount- L. R. 7 H. L. 17; 39 L. J. Q. B. 275. Stephen, L. E. 7 H. L. 24 ; 39 L. J. («) Sarris v. Huntbach, 1 JBm-r! Q- B. 275. 375 ; see post, p. 467. {t) Fer cur. Birltmi/r v. JDamell, (i) Orre/l v. Coppock, 26 L J Salk. 27 ; 1 Smith's L. 0. 9th ed. 269. 334 ; Forth v. Stanton, 1 Wms. Saund. (;/) lakeman v. Mountstephen, L E. 211 (2) ; Anderson v. Hai/man, 1 H. 7 H. L. 17 ; 39 L. J. Q. B. 275 Bl. 121 ; Simpson v. Penton, 2 C. & (;) Couturier v. Bastie S Ex ' 40 • M. 430 ; Taylor v. miarii, 1 C. M. & 22 L. J. Ex. 97 ; citing- V'olf v E. 741 ; Andrews t. Smith, 2 C. M. Koppell, 5 Plill, N. y. Rep. 458 • CONTRACTS WITHIN THE STATUTE. 207 For the same reason a promise to pay the deht of another Ch. v. in consideration of his discharge from the deht is not within ^^' the statute {a) ; as a promise to pay the debt of a person who fo^^gfiJera^ had been taken in execution on condition of his discharge tion of from custody, because the original debt was thereby estin- oi dettor. guished (i). So, upon a transfer of a sale of goods from one buyer to another with the consent of all parties, the promise of the new buyer to pay the price instead of the former, who is discharged, is not within the statute (c). A promise to pay a composition on the debts of another in consideration of the creditors assigning their debts to the promisor is not within the statute, because it amounts to a purchase of the debts, and not a promise to pay them {d). So, where an assignment of a debt or an order for payment upon the debtor is accepted in discharge of a debt of the assignor to the assignee, a promise by the debtor to pay the assignee instead of his original creditor is not within the statute, because it is a promise to pay his own debt and not that of his creditor, which is discharged (e) . The statute applies only to debts and liabilities due to the Debts due promisee himself ; promises to answer for debts or liabilities party. due to a person other than the promisee are not within the statute (/). Thus where a person assigns the benefit of a debt or contract to which he is entitled and which he guarantees to the assignee, his guarantee is not within the statute, because the debt or liability is due to himself and not to the assignee {g) . A promise made to the bailifE of a County Court, in consideration of his releasing a debtor from arrest, to pay the debt, was held not to be withia the statute, Wickham v. Wickham, 2 K. & J. (d) Anstey v. Mardm, 1 B. & P. N. 478 ; see per cur. Grove v. Dubois, 1 R. 124. T. B. 115 ; post, p. 441. [e) Hodgson v. Anderson, 3 B. & C. (a) See 1 Wms. Saund. 211b, (/), 842 ; per cur. Gull -7. Lindsay, 4 Ex. 211e. 52. (i) Goodman v. Chase, 1 B. & Aid. (/) Per cur. Eastwoody. Kenyan, 11 297 ; Bird v. Gammon, 3 Bing. N. C. A. & E. 446 ; Bargreaves v. Parsons, 883 ; Sutcher v. Steuart, 11 M. & W. 13 M. & W. 570 ; Erie, C. J., Reader 857 ; and see Lane v. Burghart, 1 Q. v. Kingham, 13 C. B. N. S. 344 ; 32 B. 933 ; 3 M. & G. 597. L. J. C. P. 108. (e) Browning v. Stallard, 5 Taunt. {g) Eargreaves v. Parsons, supra. 450. 208 STATUTE OF FRAUDS. Pakt I. Debts due ty the promisee. Indemni- ties. Promise resulting in discharge of debt. because there was no debt or liability to the bailiff to whom the promise was made (/*).— Also a promise of indemnity or promise to answer for a debt or liability due by the promisee himself is not within the statute («) : as a promise to pay a promissory note which the promisee had made to another person (/;:) ; a promise to indemnify against the costs of an action to be brought or defended by the promisee (^).— So 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(«;). But an indemnity given to the surety in a bail bond in a civil action was held within the statute, 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 (w). A promise is not brought within the statute merely because it results in discharging the debt or liability of another, where such is not the primary object or intention : as a promise to pay off a lien on property which the creditor holds for the debt of another, in consideration of his giving up possession, though the payment of the lien would prima facie discharge the debt (o) ; a promise by a sub-purchaser of goods to pay off the lien of the seller for the original price, in order to obtain possession of the goods sold (p) ; a promise to a landlord to pay out a distress levied upon goods for the rent of another, in consideration of his giving up possession of the goods, though payment according to the promise would discharge the rent {q) ; but if the promise extends to pay future rent, which could not be charged upon the goods distrained, it is within the statute (r). (h) Reader v. Kingham, supra. (i) Thomas v. Cook, 8 B. & C. 728 ; Wildes V. Ludloiv, L. R. 19 Eq. 198; 44 L. J. C. 341. (/c) Eastwoods. Kenyon, 11 A. &E. 438. (Z) Adams v. Dansey, 6 Bing. 506. (ni) Cripps v. HartnoU, 4 B. & S. 414; 32 L. J. Q. B. 381. (h) Green v. CresswcU, 10 A. & E. 453 ; and see Cripps v. SartnoU, supra ; Header v. Kmgham, supra. (o) Castling v. Aubert, 2 East, 325. (jo) Fitzgerald v. Dressier, 7 C. B. N. S. 374; 29 L. J. C. P. 113. (?) Williams \. Leper, 3 Biirr. 1886; Edwards v. Kelly, M. & S. 204 ; Bampton v. Faulin, 4 Biug. 264. ()■) Thomas v. Williams, 10 B. & C. 664 ; post, p. 209. CONTRACTS WITHIN THE STATUTE. 209 A promise to answer for future or contingent debts of Ch. v. 1 . . . . Sect I. another is within the statute : as a promise to answer for a deht for goods to be sold to him on the faith of such JeW™^ promise (s) ; a promise to discount bills to be accepted by another in payment of goods to be supplied to him upon credit of the bills {t) ; a promise to answer for the rent of another accruing due in future (u) . A promise to answer for a debt which is past at the time of making the promise must be supported by a new consideration (*). — A promise to give Guarantee. a guarantee for the debt of another is as much within the statute as the guarantee itself (y). But a promise to procure another person to sign a guarantee for the debt of another is not within the statute, though the guarantee would be (2) . The guarantees of parties to bills of exchange and negotiable instruments, as that of the drawer or indorser for payment of the acceptor, are created and regulated by the custom of merchants independently of the Statute of Frauds ; but a contract to guarantee a bill which does not appear upon the face of the bill itself is within the statute and must be proved by writing signed (a) . The terms default and miscarriage comprehend wrongful Default acts creating a liability for damages which are not breaches carriage. of contract ; as a default in surrendering to bail in a civil action (b) ; or a liability for damages wrongfully done to the goods of the promisee, which the promiser undertakes to answer for(c). A promise, in consideration of staying an action of trespass against another, to pay a stated sum and the costs of the action, was held to be an original liability and not a promise to answer for another within the statute id) . By the Mercantile Law Amendment Act, 1856 (19 & 20 Considera- Vict. c. 97), s. 3, it is enacted that no promise to answer for promise. (5) Per cur. Green v. Cressioell, 10 (z) Bushell -v. Beavan, IBing. N. C. A. & E. 459 ; Matson v. Wharam, 2 103. T. K. 80. (a) Steele v. M'Kinlay, L. R. 5 Ap. (t) Mallett T. Bateman, L. R. I 0. Ca. 754 ; see Wilkinson v. Unwin, L. P. 163 ; 35 L. J. C. P. 40. R. 7 Q. B. D. 636 ; 50 L. J. Q. B. (««) Thomas v. Williams, 10 B. & C. 338. 664. (i) See ante, p. 208, n. (n). {x) Wood V. Benson, 2 0. & J. 93. [c) Kirkham v. Marter, 2 B. & Aid. (y) Per cur. Mallett y. Bateman, L. 613. E. 1 C. P. 170 ; 35 L. J. 0. P. 42. {d) Eead v. Nash, 1 Wils. 305. L. P 210 STATUTE OF FRAUDS. I'AETi. the debt, default, or miscarriage of another person, which satisfies the requirements of the statute as to writing and signature, "shall he deemed invalid to support an action, suit, or other proceeding to charge the person hy whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing, or hy necessary inference from a written document." But a valid consideration is necessary to support the promise (e). Eepresen- Promises to answer for another are further provided for by to credit of the statute 9 Geo. IV. c. 14 (Lord Tenterden's Act), s. 6, ano er. ^-^^^ „ ^^ action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods, unless such representation or assurance be made in writing signed by the party to be charged therewith." The liability for a representation made to another with the intention that he should act upon it depends upon the fraudulent effect of such representation, if untrue, and not upon contract ; and the liability therefore does not requii'e a consideration to support it (/). Section 4, Agreement made upon consideration of marriage. Agreement Agreements consisting of mutual promises to marry are sideration held not to be here intended ; therefore they do not require ria^e"' written evidence under this statute {cj). By a recent Act the testimony of a party to an action for breach of promise of marriage is made admissible, provided that it is " corrobo- rated by some other material evidence in support of such promise" iji). — An agreement to give money, or land, or a (e) Barrett v. Trussell, 4 Taunt. Q. B. 565; and see /losC, pp 310 40'' •ir">, ^'5?,-^"t^''^/- ^'^"''""^ ^ ^™^- (^) ^"'-'-'^o,! V. Cave, 1 L. Raym'. N. C. 103; JFood y. Benson, supra; 386; 5 Mod. -112- C„rk v Baker 1 and see Glover v. Buchit, 2 H. & N. Strange, 34 ; overrulin.' PhiJvot \ 487 ; 26 L. J. Ex. 416 ; post, p. 231. JFalk^ 3 Le;. 6S " ^ (/) See ante, p. 4; Eldon, L. C, (A) 32 & 33 Vict. o. 68, s 2 • see Mratis T. Bicliiell, 6 Vea. 186; Swifl Besselax. Stem L. R 2 C P d'26')- y mnMoi/^mJ.. R. 9 Q. B. 301 ; 46 L. J. C. P. 467 '; TTu-demann v! 43 L. J. y. B. 56 ; Btsliop v. Balhs TFalpoIe, (1891) 2 Q B 534 • fiO T. T Co., L. R. 25Q. B.D.612; 69L.J. Q. B. 762. > '"^- ^- °'^* ' ''^ ^- J- CONTRACTS WITHIN THE STATUTE. 211 house, or to make a settlement or a will, in consideration of Ch. v. marriage, is within the Statute of Frauds (;') ; and marriage is ■ '— an acceptance of such agreement, and is equivalent to a con- sideration of value (y). An agreement of this kind cannot be enforced against a person or as a charge upon his estate, unless it satisfies the requirements of the statute (k). But a memorandum of the agreement in writing made after the marriage is sufiicient to satisfy the statute (/) . Agreements for marriage settlements of personal chattels are expressly excepted from the Bills of Sale Acts {in). If a person in order to induce a marriage make a representa- Eepresen- tion of facts, upon the faith of which the marriage takes induce place, he may he bound to make good the representation («). ™'^™'^se. The liabiKty in such case rests upon the ground that he would be guilty of a fraud, or at least would have caused a mistake in another to the material alteration of his position, if the facts were not as represented, and not upon the ground of contract ; therefore it is not required that the representa- tion should be in writing under the statute in order to charge him with the consequences (o). But representations of future intentions, as of making a settlement or will, made upon con- sideration of marriage, if intended to be binding, being equivalent to promises, are within the statute ; consequently writing is necessary to estabhsh them, notwithstanding the marriage may have taken place upon the faith of their per- formance {p) ; for marriage alone does not constitute such (i) Montacute v. Maxwell, 1 P. 776 ; see Tie Hownson, L. E. 29 C. D. Wins. 618 ; I Str. 236 ; Caton r. 358 ; 54 L. J. C. 950. Caton, L. R. 1 Ch. 137 ; 34 L. J. C. [l] Sammersley t. De Bid, 12 CI. 564 ; Goverdale v. Eastwood, L. E. 15 & ]?. 45. Eq. 121; 42 L. J. C. 118; TJngleij (m) TFcnm™ v. JyoH, (1891) 1 Q. B. T. Ungleij, L. R. 5 C. D. 887 ; 46 634 ; 60 L. J. Q. B. 663. L. J. C. 854 ; see He Allen, 49 L. J. C. («) Savage v. Foster, 9 Mod. 38 ; 555. Montefiori v. Moniefiori, 1 W. Bl. (/) FremouU t. Dedire, 1 P. Wms. 363 ; Neville v. JFilkinson, 1 Bro. 429 ; Zuders v. Ansteij, 4 Ves. 501 ; C. C. 543 ; Bold v. Sufchinson, 5 Shadwell v. Shadwell, 9 C. B. N. S. De G. M. & G. 558 ; 25 L. J. C. 159 ; 30 L. J. C. P. 145 ; Re Badeock, 598 ; Mills r. Fox, L. K. 37 C. D. L. R. 17 C. D. 361 ; Tiret v. Virct, 153 ; 57 L. J. C. 56. 50 L. J. C. 69 ; and see post, p. 545. (o) See ante, p. 4 ; Prok v. Soady, (k) Ex p. Whitehead, L. E. 14 2 Gifl. 1 ; 29 L. J. 0. 721. Q. B. D. 419 ; 54 L. J. Q. B. 240 ; (p) Montaeute t. Maxwell, 1 P. Dashwood v. Jermyn, L. R. 12 C. D. Wms. 618 ; Warden v, Jones, 2 DeG. p2 212 STATUTE OF FEAUDS. Paet I. part performance of a parol contract as will take it out of the operation of the statute upon equitable grounds (q). Contract or sale of interest in lani. Parol lease. Contract lor lodgings. Section 4. Contract or sale of lands, tenements or heredita- ments, or any interest in or concerning them. The following contracts are within this description : — A contract to give or take a lease or tenancy of a house or land (r) ; or to assign a lease or tenancy (s) ; or to surrender a tenancy to the landlord in favour of another {t) ; or merely to give up possession of a house to another (m) ; or to increase or reduce rent reserved or charged upon land {x) ; or to make a disposition of land by will (y) ; or the sale of a business, together with possession of the premises where it is carried on (s) ; or a contract to procure a lease or interest in land for another, though the contractor himself has no interest, and acts merely as agent («) . An offer to sell, and the exercise of an option to pur- chase land is within the statute, and is not effectual unless made in writing signed {b) . — A parol lease within the exception of section 2 of the statute, upon entry of the lessee, is valid ; but as a contract concerning an interest in land it is within the above description, and no action can be brought upon it against the lessee for not taking possession (c). — A contract for the exclusive possession of a specific part of a house or premises, as the ordinary contract for lodgings, is within the statute (d) ; but a contract for a mere license to reside in or & J. 76 ; 27 L. J. C. 190 ; Be Bid v. Thompson^ 3 Beav. 469 ; SammersUy Y. Be Biel, 12 CI. & F. 45 ; Johnstone V. Mappin, 60 L. J. C. 241 ; and see Jorden v. Money, 5 H. L. C. 185 ; 23 L. J. 0. 865. ((f) Caion V. Cafon, supra; U}igley v. Unyleij, supra. See post, p. 259. (»■) Mechekn v. Wallace, 7 A. & E. 49 ; J'auffham. Hancock, 3 C. B. 766. (s) Buttemere v. Hayes, 5 M. & W. 456. {t) CocUng v. Ward, I C. B. 858. («) Kelly y. IFehler, 12 C. E. 283; 21 L.J. C. P. 163. (x) O'Connor Y. Spaight, 1 Soh. & Lef . 306 ; see Bonellan v. Read, 3 B. & Ad. 899 ; Croioley v. VUty, 7 Ex. 319. iy) Alderson v. Maddison, L. K. 5 Ex. D. 293 ; 8 Ap. Ca. 467 ; 50 L. J. Q. B. 466. (z) Smart v. Harding, 16 G. B. 652 ; 24 L. J. C. P. 76; Hodgson v. Johnson, E. B. & E. 085 ; 28 L. J. Q. B. 88 ; see Green v. Saddington, 7 E. & B. 503. (a) Horsey Y. Graham, L. R. 5 C. P. 9 ; 39 L. J. C. P. 58. (i) Biriningham Canal Co. v. Cayf- ivright, L. R. 11 C. D. 421 ; 48 L. J. C. 552. (c) See ante, p. 203. (rf) Btman v. Stamp, 1 Starkie, 12; Edge v. Strafford, 1 C. & J. 391. ■ CONTRACTS WITHIK THE STATUTE. 213 use premises, or a specific part of premises, not involving the Ch. v. exclusive possession, as a contract for board and lodging in '—^ the house of another, is not within the statute (e) ; in the latter case the landlord retains the legal possession, and the licensee cannot maintain an action of trespass or any action depending on possession (/). Equitable interests in land are vdthin the statute ; as the Equitable interest of a purchaser under a contract of sale, or of a lessee under an agreement for a lease (g) ; the beneficial interest in a mortgage or charge upon land (h) ; the equity of redemp- tion of a mortgage («') ; an equitable charge upon rent (k) . — An equitable mortgage by deposit of title deeds is an excep- Equitable tion ; it is taken out of the statute because the contract, as ^ ° ' regards the deposit, is performed, and parol evidence is admissible to explain the possession of the deeds and the terms upon which they are held (1). But an agreement to make an equitable mortgage by deposit of deeds is within the statute, and must be evidenced by writing signed (iii) . Also further charges upon an equitable mortgage by deposit are not within the statute and may be created without writing ; as they are supported by the continued possession of the deeds (n) . Further advances cannot be charged upon a legal mortgage without the written evidence required by the statute ; because the deeds are held by the legal mortgagee in right of ownership and not merely as depositee (o). The sale of emblements or crops produced by cultivation. Sale of em- fnictiis industriales, though in a growing state and intended (e) Wright v. Stavert, 2 E. & E. (A) Toppin v. Zomas, 16 C. B. 145 ; 721 ; 29 L. J. Q. B. 161. See Doev. 24 L. J. C. P. 144. Laming, 4 Camp. 77 ; JJindley, J., {») Ftr cur. Massci/ v. Johnson, 1 Ihillips v. Sensm, L. B. 3 C. P. D. Ex. 255. 32. (^•) ^2:j9. 1/«Z?, L.R. IOC. D. 615; (/) See Roads v. Trumpington, L. 48 L. J. B. 79. B. 6 Q. B. 56 ; 40 L. J. M. 41 ; [l) Sussel v. Sussel, 1 Bro. C. C. London f N. W. My. v. Buckmaster, L. 269 ; 1 "White & T. L. C. 6th ed. 773 ; K. 10 Q. B. 70 ; 44 L. J. M. 29 ; Allan see post, p. 258. v. Liverpool, L. K. 9 Q. B. 180 ; 43 [m) Ex p. Coomhe, 4 Madd. 249 ; L. J. M. 69 ; Oory v. Bristow, L. R. see Bixon v. Muclcleston, L. R. 8 Ch. 2 Ap. Ca. 262 ; Smith v. Lambeth, 155 ; 42 L. J. C. 210. L. R. 10 Q. B. D. 327 ; 51 L. J. M. (h) James v. Sice, 5 D. M. & a. 106. 461 : 23 L. J. C. 819. (g) Kelly v. Webster, 12 C. B. 283 ; (o) Fxp. Hooper, 1 Mer. 7. 21 L. J. C. P. 163. 214 STATUTE OF FEAIDS. Paet I. Natural crops. Crops sold with the land. Produce sold as goods. to remain on the land until maturity, is held not to be a sale of any interest in land within this section ; but it is held to be a sale of goods within the 17th section of the statute {p) : as a sale of a growing crop of corn {q) ; or of a growing crop of potatoes (r). — The sale of a growing crop of grass, being a natm-al produce of permanent pasture, not included in the description of emblements, is a contract for an interest of land, and must be in writing (s). So a contract for the sale of ■growing trees or underwood (;!), and for the sale of the growing crop of fruit on fruit trees {u). — Where the growing crops are sold or relinquished with the possession as appur- tenants of the land, though at a separate valuation, as in contracts between landlord and tenant or between an outgoing and incoming tenant, in which there is no interest in the crops created distinct from the land, the contract is entire and concerns an interest in land within the statute (.r). — But a contract for the sale of crops or produce of land, whether emblements or not, to be delivered or taken as goods, without the intention of passing any interest or property until sever- ance, is not within this section, but is merely a sale of goods : as a contract for the sale of potatoes or other produce, then being in the ground, to be taken by the buyer immediately at so much per bushel or per acre (y) ; or to be left and taken by the buyer when ripe at so much per bushel (s). So a contract for the sale of the timber in trees then standing, at so much per foot, or at a fixed price, whether to be cut by the seller or the buyer {a). (p) Post, p. 221. See Co. Lit. 56 a, b ; 1 Wms. Saund. 277 b, n. (/), Dtippa V. Mayo. {q) Jones v. Flint, 10 A. & E. 753 ; overruling; Waddington v. Brisiow, 2 B. &P. 451; and Emmerson v. Ecclis, 2 Taunt. 38 ; see Parke, B., Eodwcll V. Phillips, 9 M. & W. 503. (»•) Pvans V. Eoberts, 5 B. & C. 829. (s) Crosby v. iradsnorth, 6 East, 602; per Bayley, J., Praiis v. Poberts, 5 B. & C. 832 ; Carriiiqloii v. Pools, 2 M. & W. 248 ; eeo Graves v. Weld, 5 B. & Ad. 105. (l) Scorell v. Po.rall, I Y. & J. 39C; Teal V. Aiily, 2 B. & B. 99. («) Podwcll V. Phillips, 9 M. & "SV. 501. (j-) Falmouth v. Thomas, 1 C. & M. 89 ; Mai/feld v. IJ'adilm, 3 B. & C. 365. See Bills of Sale Acts, 1S7S, 1882 ; Poberts \. Roberts. L. R. 13 Q. B. D. 794; 53 L. J. Q. B. 313. (y) Parker v. Staiiilaiid, 11 East, 362 ; iraruiel- t. Britee, 2 M. & S. 205 ; per cur. Washboimte t. Burrows, 1 Ex. 116. {:■) Sainsbiiry v. Matlheus, 4 M. & W. 343 ; Ifatts v. Friend, 10 B. & C. 446. (a) Smith V. Siirman, 9 B. & C. 561 ; 1 Wnis. Saund. 277 b, n. (/), CONTRACTS WITHIN THE STATUTE. 215 A contract for a profit d prendre, as a riglit to taking game, Cu. v. is within the statute (b) ; and a right of entering upon land and taking part of the soil(<'). A sale of the feed of a pasture /p-cndre. to be taken by the cattle of the buyer is a profit a 'prcmh'e within the statute ; but a contract by the owner of the pasture to agist cattle, that is, to take them in to feed, imports no interest in land and is not within the statute [d). A contract for an easement over land, as an easement of Easements light, is within the statute (e). — But a contract for a mere licenses, license to enter and use land, importing no interest in the land, is not within the statute (/) ; as a contract for the use of a graving dock for the repair of a ship ; and an action will lie for not admitting the ship into the dock under such con- tract, though not in writing (^7) . A license is reyooable, unless coupled with a valid grant of property (li) ; as in the case of a sale of goods lying upon the seller's land with license to the buyer to enter and take the goods, in which case the seller cannot countermand the license (*) ; but such a license is not implied by law in a sale of the goods (/r). Upon the sale of a growing crop of grass by parol with license to enter to cut and take it, the license is revocable ; because the seller cannot be charged upon such a contract without writing ( T) . A contract for the sale of the building materials of a house, to be taken down by the buyer, and cleared off the ground within a certain time, was held to be a contract for an interest in land within the statute, which could not be enforced without writing (tn). The property in tenant's fixtures, that is, in things annexed Fixtures, to the freehold subject to a right of removal in the tenant, so Duppa V. Mayo; Marshall v. Green, (ff) Wells t. Kingston-uponSull, L. R. 1 C. P. r>. 35 ; 45 L. J. C. P. L. E. 10 C. P. 402 ; 44 L. J. C. P. 133; see Later ij Y. I'urstU, L. R. 39 257. C. D. 508 ; 57 L. J. C. 570. (h) Per ear. Wood v. Leadiitter, 13 ib) Webber v. Lee, L. R. 9 Q. B. D. M. & W. 845. See ante, p. 212. 315 ; 51 L. J. Q. B. 485. (i) Wood-^. Uanleij, 11 A. & E. 34. [e) Smart v. Jones, 15 C. B. N. S. (k) Williams v. Morris, 8 M. & W. 717; 33 L. J. C. P. 154. 488. (d) Jones v. Flint, 10 A. & E. 753. (l) See ante, p. 214 ; Crosii/ t. (e) McManus t. Cooke, L. R. 36 Wadsioorlh, 6 Ea.st, 602 ; Carr'mgton C. D. 681 ; 56 L. J. C. 662. v. Hoots, 2 M. feW. 248. (/■ See a«fe p. 213, n. (c). ini) Latery t. Pursell, L. R. 39 CD. 508; 57 L.J. 0. 570. 216 STATUTE OF FRAUDS. Paet I. Collateral agreement for build- ing or repair. Partner- ship in laud. long as they remain fixed, is, for most purposes, an interest in land («). And a license by a landlord to an outgoing tenant to leave fixtures on the demised premises after the expiration of the term and to enter and take them is an interest in land which requires a grant under seal (o) . But the right of a tenant to remove fixtures during his term is not an interest in land within the statute ; and where an outgoing tenant re- linquishes his right of removing fixtures to the landlord or to an incoming tenant for a valuation, such coiitract is not within this section and does not require a memorandum in writing ; nor is such contract within the description of " goods, wares and merchandise" contained in the 17th section (p). Fixtures by severance become goods and chattels for all legal purposes {q). And fixtures assigned or charged sepa- rately are within the Bills of Sale Acts (r). A contract by a landlord pending a lease to lay out money in buildings, repairs, or improvements is not within the sta- tute, because the buildings become part of the land demised and confer no additional interest on the tenant ; and a contract by the tenant to pay an additional sum with the rent is not within the statute, unless the sum is charged upon the land as rent, so as to enlarge the interest of the land- lord («). A collateral agreement that in consideration of accepting a lease or tenancy upon certain terms the landlord will do repairs or put in furniture is not within the statute, because not importing any obligation to take or give the lease or tenancy {t). A contract of partnership is not brought within the statute merely by reason that the object of the partnership involves (») Mackintosh v. Trotter, 3 M. & W. 184 ; irdde v. TVaters, 16 C. B. 637 ; 24 L. J. C. P. 193 ; Eojfetj v. Henderson, 17 Q. B. 574 ; 21 L. J. Q. B. 49 ; see Lee v. Eisdon, 7 Tannt. 188. (o) Eoffey v. Henderson, sitprn. (p) Ilallen v. Sunder, 1 C. M. & R. 266 ; Lee v. Gaskell, L. R. 1 Q. B. D. 700 ; 45 L. J. Q. B. 540. See post, p. 221. [q) Balton v. WlMtem, 3 Q. B. 961. (r) Tie Yates, 38 C. D. 112 ; 67 L. J. C. 697 ; Climpson v. Coles, 58 L. J. Q. B. 346. (s) Mann v. Xi(nn, 43 L. J. C. P. 241 ; Hobi/v. £oel>Hc/c, 7 Taunt. 157; Ihne/laii v. Eead, 3 B. & Ad. 899. (t) Mann v. Xiinn, 43 L. J. C. P. 241 ; Angell v. Duke, L. R, 10 Q. B. 174; 44 L. J. Q. B. 78; see ante, p. 163. CONTRACTS WITHIN THE STATUTE. 217 the possession and use of land ; though in the result it may Ch. v. confer an interest in the real assets acquired under it {u). . '—^ But a contract for a partnership in a mine belonging to one of the contracting parties, which would give the other party an interest in the mine, was held to be within the statute («). Where the real property of a partnership is vested in the partners, for a legal or equitable estate, the interest of each partner is during the partnership an interest in land within the statute («/) . But if the real estate be held by some of the partners, or by other persons, upon trust for partnership pur- poses only, and the partners, as such, have no interest except in a share of the profits made, the interest of a partner is not an interest in land within the statute (s) ; as the share of a partner in a cost book mining company («) . Upon the dis- . solution of a partnership there is an implied trust for conver- sion of the assets into money, for the purpose, after paying the partnership debts, of distribution amongst the partners, and the share of each is considered as personal estate (b). But an agreement to witlidraw from a partnership, importing that the retiring partner must assign to the continuing partners his share in the real assets, is within the statute (c). Shares in joint-stock companies, or other incorporated Shares in bodies holding real estate for the purposes of their trade or hoMing^^^ business, are generally such as to give the shareholders no ^^°'^' interest in the land, but only a share of the profits made, and are therefore not within the statute (d) ; as shares in a rail- way company (e). By the Acts for the regulation of joint- {u) Dalev. Hamilton, 5 Hare, 369. (b) See 1 White & Tud. L. C. 6th {x) Caddick v. Skidmore, 2 D. & J. ed. 217, Lake v. Craddock ; Darby t. 62 ; 27 L. J. C. 153. Darby, 3 Drew. 495 ; 25 L. J. C. («/) See Baxters. Broicn, 7 M. &Gr. 371 ; Steward v. Slakeway, L. R. 4 198. Ch. 609. See the Partnership Act, (z) Per cur. Watson v. Spratley, 10 1890, s. 22. Ex. 222 ; 24 L. J. Ex. 63. {c) Gray v. Smith, L. K. 43 0. (a) Watson v. Spratley, supra ; 208 ; 59 L. J. C. 145. Poicell T. Jcssop, 18 C. B. 336 ; 25 {d) Per cur. Watson v. Spratley, L. J. C. P. 199. See Myers v. supra. See BulmerY. Mrris, SO li. J. Perigal, 11 C. B. 90; 21 L. J. C. P. C. P. 25. 217 ; Edwards v. Eall, 6 D. M. & Gr. (e) Bradley v. Holdsworth, 3 M. & 84 ; Entwistle v. Davis, 36 L. J. 0. W. 422 ; Tempest t. Kilner, 3 C. B. 826. 249. 218 STATUTE 01'' fKAims. Pabt I. stock companies it is provided in general terms that the shares shall be personal estate and not of the nature of real estate, and therefore they are not within the statute (,/). And shares of the above kinds are not within the description of " goods ■wares and merchandise " contained in the 17th section of the statute ((/). Section 4. Agreement that is not to be performed wilhin the space of one year from the making thereof. Agreement This description comprises contracts which are incapable performed of beiug com|)letely performed within the year (/*) ; as a year. contract to take in a literary work to be published periodically in parts extending over more than a year, and to be paid for as the parts are delivered («') ; a contract to pay an annuity for five years (li) ; a contract for a partnership for ten years {I) ; an agreement to subscribe a sum of money to a charity to be paid in five yearly instalments (»«). — A contract of service for a term of more than a year is within the statute {n) ; so a contract for a year's service, to commence at a future day (o) ; but a contract for a year's service to commence the next day is not within the statute, because the day of making the contract is not reckoned {p>). Where the parties after a yearly hiring continue the service without express agreement, a fresh hiring for a year is implied from the expiration of the first year, which is not within the statute (§■) . — An agreement for a lease for more than a year, or for a year commencing (/) See the Companies Clauses (I) See TTiUiams v. Jones, 5 B. & Consolidation Act, 1845, 8 & 9 Vict. C. 110. 0. 16, s. 7; the Companies Act, 1862, [m) Ee Sudsan, 6i L. J. C. 811. 25 & 26 Vict. c. 89, s. 22 ; and see («) Giraud v. Sichmond, 2 C. B. Bradley v. Soldsworth, supra. 835. (g) Seeposi, p. 221. (o) Braagirdlo v. JSeald, 1 B. & (h) Peter v. Compton, Skinn. 353 ; Aid. 722 ; 'Snelling v. Lord Hunting- 1 Smith, L. C. 9th ed. 359 ; Souch v. field, 1 C. M. & R. 20 ; Erans v. Soe, Strau'bridge, 2 C. B. 808 ; Macgregor L. R. 7 0. P. 138; Sritain v. Rossiter, T. Macgregor, L. R. 21 Q. B. D. 424 ; L. R. 11 Q. B. D. 123 ; 4S L. J. 67 L. J. Q. B. 591 ; disapproving Q. B. 362 ; see Ban/cs v. Grassland, Dairy v. Shannon, L. R. 4 £x. D. L. R. 10 Q. B. 97 ; 44 L. J. M. 8 ; 81 ; 48 I.. J. Ex. 469. Oawthorn v. Cordrnj, 13 C. B. N. S. (i) Boydell t. Drummond, 11 East, 406 ; 32 L. J. C. P. 152. 142 ; Mamr v. Fync, 3 Bing-. 285. (;;) Willes, J., Oawthorn v. Cordrcy, (Jc) Sweet V. Lee, 3 M. & G. 462. supra; see Britain v. Sossiter, supra. (q) Beeston v. CoUyer, 4 Bing. 309. CONTRACTS WITHIN THE STATUTE. 219 at a future day is within the statute, and must be in writing ; Ca- V. though an actual lease for a term within the exception of the 2nd section may be made by parol (r). Contracts which may possibly be performed within the Contract . , which may- year are not withm the statute : as a contract to pay money be per- upon the return of a ship which might return within a year, within the though the ship in fact did not return within two years («) ; y®^'-'' a contract to pay a sum of money to a person on the day of his marriage, though the marriage did not take place within a year {t) ; a contract to leave money by will {u) ; and a promise by a person that his executor shall pay a sum of money {x). A promise by a person to pay another so much a year for the maintenance of his children was held not to be within the statute because not binding for any definite time, but continuing only so long as both parties pleased {//). So an agreement between husband and wife for a separation, and for the husband to allow the wife a weekly sum for the maintenance of herself and children, was held not to be within the statute (z) . A contract not to set up a trade within a certain distance, unlimited in point of time and therefore pre- sumptively during the joint lives of the parties, was held to be within the statute (a) . Contracts which may be performed within the year on one side only, though they cannot be performed within the year on the other side, are not within the statute (b) ; as a contract for the sale of goods to be delivered in six months, and to be paid for in eighteen months (c). A contract for the sale and assignment of a patent, to be paid for by instalments extending beyond a year, is not within the (r) Bolton V. Tomlhi, o A. & E. {z) Ilacgregor v. Mmcjregor, L. R. 856 ; see ante, pp. 203, 212. 21 Q. B. D. 424 ; 57 L. J. Q. B. (s) Anonymous, 1 Salk. 280. 591. \t) Feler V. Comjiton, Skinner, 353; [a) Jia.-w'kms, J., Davei/ v. Shannon, 1 Smith's L. 0. 9tli ed. 359r L. R. i Ex. D. 81 ; 48 L. J. Ex. («) Fenlon v. JSmblers, 3 Burr. 459 ; disapproved Macgregor r. Mac- 1278 ; Ridley v. Sidley, 34 L. J. G. gregor, supra. 462. (b) Cherry v. Seming, 4 Ex. 631 ; {x) Wells V. Ilorton, 4 Bing. 40. Miles v. Mew Zealand Co., L. R. 32 (V) luiowlman v. Bluett, L. R. 9 C. B. 266 ; 55 L. J. C. 801. Ex. 307 ; 43 L. J. Ex. 150 ; Souoh v. (e) Abbott, J., Braoegirdle v. Beald, Strawhridge, 2 C. B. 808. 1 B. & Aid. 727 ; Parke, J., Donellan V. Bead, 3 B. & Ad. 903. 220 STATUTE OF FKAUUS. Past 1. statute, because it may be performed by the seller within the jea,v{d). So, a contract between a landlord and tenant for the landlord to lay out 501. in improvement of the premises, no time being fixed for so doing, and the tenant to pay 51. a year in addition to the rent during the remainder of the term, was held not within the statute (c). A contract to execute a lease for a term of years, upon a parol agreement of the lessor to keep down the game during the term, was held to be taken out of the statute by the execution of the lease (/). Contracts j^ contract which cannot be performed within the year is not G,6x6S>S1dI6 ^ 1ft within the taken out of the statute by reason that it may be defeated or ^^'^^' put an end to within the year : as 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 (g) ; a contract of service for a term of more than a year, though determinable by notice within a year {h). An agreement with a solicitor that he should do all the business of a com- pany, and should not be removed unless for misconduct, was held to be withiu the statute, though terminable for miscon- duct («). Section 17. Contract for the sale of any goods, wares and merchandises for the price of ten pounds sterling or upwards. Contract Lord Tenterden's Act, 9 Geo. lY. c. 14, s. 7, extended the of'^goods!' ^ ^^^^^ 0^ contracts here described " 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 at the time of such contract be actually made, procured, or provided, or fit or ready for deli- very, or some act may be requisite for the making or com- pleting thereof, or rendering the same fit for delivery (/.■). — (d) Cherry v. Scming, i Ex. 631 ; & C. 392 ; see Barber t. Callow, L. E. Smith Y. Neale, 2 C. B. N. S. 67 ; 26 2 C. P. D. 558. L. J. C. P. 143. (h) Dobson v. Collis, 1 H. & N. 81 ; (e) Sonellan v. Head, 3 B. & Ad. 25 L. J. Ex. 267 ; see Roberts v. 899 ; and see Boby v. Jiotbuci, 7 Tucler, 3 Ex. 632. Taunt. 157. (4) Eley v. Posith-e Securitii Ass. (/) Erskine v. Adeaiie, L. E. 8 Ch. Co., L. E. 1 Ex. D. 20 ; 45 L J Ex 756 ; 42 L. J. G. 849 ; ante, p. 163. 58. [ff) Ilbrkv. Earl of I.im-pool, 9 H. {k) As to contracts of this kind CONTllACTS WITHIN THE STATUTE. 22 This enactment sulDstitutes the words " value of ten pounds " Ch. v. Sect I for the "price of ten pounds" ; and therefore if no price be fixed in the contract to determine the value, it is a question th^ goods of fact whether the goods sold are of the value of ten pounds, ^°^^- so as to bring the contract within the statute {I). A contract of sale at a certain price is not taken out of the statute by reason of the price being enhanced by the carriage and deli- very of the goods at a certain place {m). But the employ- ment of a carrier as an agent to buy goods, and to carry and deliver them to the employer is not a contract within the statute (m). The sale of emblements or growing crops, which is not a Emble- contract within the 4th section of the statute, is a sale of ™ goods within the 17th section (o). And the sale of any pro- duce of land to be taken as goods without giving any interest in the land, though not severed from the land at the time of sale, is a contract for the sale of goods within this section (p) : as a sale of timber in standing trees at so much per foot (q) ; or the sale of a crop of potatoes to be taken when ripe at so much per sack (r) ; or a sale of a crop of seed to be produced on certain land at so much per bushel (s). — Where an out- Fixtures, going tenant relinquishes his right to remove fixtures to the landlord or to an incoming tenant for a valuation, the contract is not within this section ; nor is it a contract concerning an interest in land within the 4th section (t). — Shares in a joint Shares, stock banking company are not " goods, wares, or mer- chandises," within the section, being choses in action and incapable of delivery (m). For the same reason railway before Lord Tenterden's Act, see (n) Cobbold v. Casion, 1 Bing. 399. Towers v. Osborne, 1 Str. .506 ; Muck- (o) Erans v. Roberts, 5 B. & C. 829 ; lowv. Mangles, 1 Taunt. 318 ; Siixton and see mite, p. 213. V. Bedal, 3 East, 303, seeming to hold [p) See ante, p. 214. them not -within the statute; and (j) ) : as where the goods have been cut o£E the bulk [k) Lockett T. Nicklin, 2 Ex. 93 ; And see Saunders v. Topp, 4 Ex. 390. Tomkinson v. Staight, 17 C. B. 697 ; («) Morion t. Tihlett, 15 Q. B. 25 L. J. C. P. 85. 428 ; Parker v. WalUs, 5 E. & B. 21 ; [l) Parke, B., Bill t. Bament, 9 Page v. Morgan, L. R. 15 Q. B. D. M. & W. 41 ; see FHcker v. Thomlin- 228 ; 54 L. J. Q. B. 434. son, 1 M. & G. 772; and see ante, {o) Sickard v. Moore, 38 L. T. p. 226. ^ N. S. 841 ; Grimoldy v. Wells, L. K. (m) Per cur. Cusack v. Robinson, 1 10 C. P. 391 ; 44 L. J. C. P. 203. B. & S. 299; 30 L. J. Q. B. 261. {p) Casacky. Robinson, supra ; Eer- L. 11 242 STATUTE OF FRAUDS. Paet I Receipt. Eefusal to receive. by order of the buyer, or have been marked by him for the purpose of identification (?) ; and where a certain number of sheep were selected and counted by the buyer and afterwards delivered into his field (r). Where unascertained goods are bought by verbal contract to be delivered according to sample or description, an examination by the buyer of goods delivered under the contract for the purpose of ascertaining whether they satisfy the contract is held to be an acceptance withia the statute, as admitting that the goods are delivered under a contract which justifies such dealing with them ; and though the goods are afterwards rejected, the contract may be proved by parol evidence (s). The actual receipt requires a delivery and taking possession of the goods as a matter of fact. " In order to satisfy 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 the intention of taking to the -jDossession as owner " (t) ; as where the goods were loaded into the buyer's cart sent by him to take them away (u) . Where at a sale of goods by auction with the condition of payment before removal a lot was knocked down to a bidder and handed to him, which he retained a short time and then returned, alleging a mistake in the bidding ; it was held there was no delivery or receipt of pos- session, as there was no intention in the seller to give up his lien for payment (;■). Groods were sold upon the terms that they might be removed to a warehouse of the buyer for the purpose of warehousing and packing, but not to be removed thence without payment of the price ; it was held that the delivery and receipt of possession was complete ; for that the seller retained no possession or lien, relj'ing only upon the promise not to remove the goods (?r) . — If the buyer refuses shaw T. Offden, 3 H. & C. 717 ; 34 L. J. Ex. 159. (q) Hodgson v. Lc Bret, 1 Camp. 233 ; JSaldcii v. Farker, 2 B. & C. 37. ()■) iSiimidei-s v. Topp, i Ex. 390. (s) Faffc V. Morgan, L. E. 15 Q. B. D. 21^8; 64 L. J. Q. B. 434; KilUe V. Gotigh, 38 L. T. N. S. 204 ; SCO Kie/iolion v. J!"ircr, 1 E. & E. 172; 28 L.J. Q. B. 97. (<) Fer cur. Fhillips v. BistoUi, 2 B. & C. 513 ; and see per cur. Maberley V. Shrppnrd. 10 Bing. 102. (n) luTskaw V. Ogdcn, 3 H. & C. 717; 34 L. J. Ex. 159. (r) FhiUips V. BistoUi, 2 B. & C. 51 i ; Bee post, p. 247. (»•) SodsJeyx. Varley,12A.. &E. 632. FORMS EEQUIRED BY THE STATUTE. 243 to" receive the goods he cannot be charged with a parol Ch. v. contract, notwithstanding a previous acceptance {x). The motive of refusal is not material ; as where the buyer having become insolvent refuses to receive the goods in order to restore them to the seller instead of taking them for the benefit of creditors («/). And the effect of the refusal is inde- pendent of the truth or sufficiency of the reason alleged : as that he made a mistake in buying them, or that the goods are not the same as he bought, or that they do not satisfy the contract (s). If he accepts and receives the goods in fact, it is immaterial that he disputes the terms on which he is charged as receiving them ; for the contract is then withdrawn from the statute and may be proved by parol evidence {a). The delivery of the goods to a carrier or to a warehouse- Receipt by . , . carrier or man or wharfinger appointed by the buyer, and the receipt agent. of the goods by such agent, though it may discharge the contract of the seller, does not alone constitute an acceptance or actual receipt by the buyer within the statute ; such agents having no general authority beyond the carriage and custody of the goods [b) . And the delivery of the goods by the carrier at their destination where they lie at the disposal of the buyer, is not alone sufficient (c) ; as goods carried on a railway and delivered at a station named by the buyer, where they lie at his orders {d). Until acceptance and receipt the property does not pass ; the goods remain at the risk of the seller, and he may retake possession of the goods as against the buyer or his trustee in bankruptcy, though they have been carried to their destination and are no longer in tramitu (e). If the buyer after the goods have been de- {x) BaUey v. Farlcer, 2 B. & C. 37. B. 271. Seepost, p. 715. (ij) Nicholson v. Boioer, 1 E. & E. (c) Hunt v. Hecht, 8 Ex. 814 ; 22 172 ; 28 L. J. Q. B. 97 ; see James t. L. J. Ex. 293. Griffin, 2 M. & "W. 623. (d) Norman v. Phillips, U M. & "W. (z) Fhillips V. BistolU, 2 B. & C. 277. 611 ; Johnson v. Dodgson, 2 M. & W. (e) Coombes v. Bristol ^ Exeter Si/., 653. 3 H. & N. 510 ; 27 L. J. Ex. 401 ; («) Tomkinson t. Staight, 17 C. B. Nichohon v. Bower, 1' E. & E. 172 ; 697 ; 26 L. J. C. P. 85. 28 L. J. Q. B. 97 ; Smith v. Hudson, (i) Meredith v. Meigh, 2 E. & B. 6 B. & S. 431 ; 34 L. J. Q. B. 145 ; 364 ; 22 L. J. Q. B. 403 ; overruling see Marshall v. Green, L. R. 1 0. P. Mart V. Sattlei/, 3 Camp. 528 ; Hart B. 35 ; 45 L. J. 0. P. 163 ; and see V. Bush, E. B. & E. 494 ; 27 L. J. Q. post, p. 261. r2 244 STATUTE OF FRATJUS. Paet I. livered to his carrier or agent deals with them as owner, as by reselling to another, or by altering the destination, he may be taken to have accepted and received them, without an actual receipt into his own possession (/). So though acceptance of the bill of lading of goods shipped for carriage would not be sufficient, yet the consignee may so deal with it as to preclude himself from disputing that he has accepted and received the goods as owner [g). So if the buyer, know- ing the goods to be in the possession of his carrier or ware- houseman and lying at his disposal, does not notify to the seller within a reasonable time his refusal of them, he may be taken to have accepted and received them [h). Construc- tive de- livery and receipt. Where the goods are in posses- sion of the buyer. There may be a constructive delivery and receipt sufficient to satisfy the statute by a transfer of the right of possession, without any change of possession in fact. This may occur under the following conditions : — where the possession is already in the buyer, but not the right of possession, which is then transferred to him ; — where the possession remains in the seller, but the right is transferred ; — where the possession remains in a third party, and the right is transferred. Where the goods are already in the possession of the buyer in right of the seller, a constructive delivery and receipt may be effected by the parties consenting to a change of the pos- session to the buyer in his own right. "If it appears that the conduct of a person in dealing with goods already in his possession is wholly inconsistent with the supposition that his former possession continues unchanged, he may properly be said to have accepted and actually received such goods under a contract, so as to take the case out of the operation of the Statute of Frauds ; as, for instance, if he sells or attempts to sell the goods, or if he disposes absolutely of the whole or of any part of them, or attempts to do so, or alters the nature of the property, or the like"(i). Thus, where the goods (/) Morton v. Tihbett, 15 Q. B. 428 ; Currie v. Anderson, 2 E. & E. 592; 29 L. J. Q. B. 87. (g) Meredith v. Meigh, 2 E. & B. 364 ; 22 L. J. Q. B. 403 ; Currie v. Anderson, 2 E. & E. 592 ; 29 L. J. Q. B. 87. (h) Bushell v. Wheeler, 15 Q. B. 443 ; see Norman v. PhiUips, 14 M. & W. 277. (j) Per cur. LiUiiwhite V. Devereux, 15 M. & W. 291. FORMS EEQUIKEU BY THE STATUTE. 2-15 were in the possession of a person as agent for sale, and it Cn. v. was verbally agreed between him and the owner that he '■ — '- should buy them himself, and he thereupon resold them to a third party ; it was held that there was sufficient evidence of an acceptance and receipt to charge him as the buyer {k). Where a person in the possession of a house and furniture as tenant for hire agreed with the owner of the furniture to buy it at a valuation, but upon the valuation being made refused to pay it and gave notice to the owner to remove the furniture ; it was held that there was no evidence of an acceptance and receipt, as the continued possession was refer- able to the hiring and not to the sale (/) . A constructive delivery and receipt may also take place wterethe where the goods remain in the actual possession of the seller, main in the by a transfer of the right of possession with the consent of of thf^""^ both parties. " The question then arises whether the posses- seller, sion which actually remained in the seller was a possession in the seller by virtue of his original property in the goods, or whether it had become a possession as agent and bailee of the buyer ; if the latter, there was a constructive possession, and, through it, a constructive acceptance by the buyer "(»«). Where a person bought horses of a livery stable keeper and requested him to keep them at livery, which he assented to and charged the buyer with the keep ; it was held that there was an effectual change of possession and an acceptance and receipt by the buyer (w). Where a person having sold a horse requested the buyer to lend it to him for a journey, which the buyer assented to ; it was held to be an acceptance and receipt of the horse within the statute ; for the lending of the horse operated a change of the possession (o) . So where a person bought a carriage and requested the seller to keep it for him, which he consented to do, the buyer using it when he required (p). A merchant who also kept a bonded (k) Edan v. Dudfield, 1 Q. B. 302. 730 ; 31 L. J. C. P. 126 ; Gibson t. [l) Lillyv'hite v. Dei-ereux, 15 M. & Hickson, 56 L. J. Q. B. 119. W. 285. See Taylor v. Wakefield, 6 [n) Elmore v. Stme, 1 Taunt. 458. E. & B. 765. (o) Marvin v. Wallace, 6 E. & B. {m) Cockburn, C. J., Castle T. 726 ; 25 L. J. Q. B. 369. Sworder, 6 H. & N. 828 ; 30 L. J. (p) Beaumont y. Brengeri, 5 C. B. Q. B. 312, citei post, p. 246. And 301. see Martin v. Reid, 11 C. B. N. S. 246 STATUTE OF FKAtJUS. ^^'^^ I- warehouse having sold some casks of spirits upon credit, to lie in bond until wanted, sent an invoice to the buyer speci- fying the casks and entered them in his hooks as sold to the buyer, by which entry he was precluded from removing them out of bond ; it was held that there was evidence of an acceptance and receipt (q). Upon the sale of a stack of hay standing upon the seller's land, the resale of part by the buyer and the removal of that part, was held to be evidence of an acceptance and receipt of the whole (r) ; but a mere resale without- any delivery seems not to be sufficient («). Where trees standing on the seller's land were sold as timber for immediate removal, and the buyer cat down some and sold the top and lop, it was held there was a sufiicient accept- ance and receipt, though there was no actual removal from the land (f). — In the case of an execution levied upon the goods of the seller the custody of the sheriff does not divest his possession, which he may deliver to a buyer subject to the execution, and the buyer having accepted and received the goods so in custody of sheriff acquires a good title against a subsequent execution {u) . insufa- On the other hand it was held in the following oases that cient con- , . , structive there was no evidence oi acceptance and receipt : — where a leceip . person bought a horse and requested the seller to keep it for him and put it out to grass, and the seller put it out in his own name (») ; where a person ordered a waggon to be built for him, and while it was in progress upon the builder's pre- mises employed a workman of his own to fix on the ironwork and a tilt with his own materials {x) ; where a person bought several articles at a shop, some of which he marked and some were measured and cut off larger pieces ia his presence ; but upon the goods being sent to him he refused to receive (y) Castle v. iSworder, 6 H. & N. p. 214. 828 ; 30 L. J. Ex. 310 ; see Anderson {it) Union Sank of London v. Ze- V. Scot, 1 Camp. 235 ; Re Kidijmiy, nanton, 47 L. J. Q. B. 409 ; see Milh L. E. 15 Q. B. D. 447 ; 54 L. J. v. Charks worth, L. R. 25 Q. B D Q. B. 570. 421 ; 59 L. J. Q. B. 530. (r) Chaplin v. Sogers, 1 East, 192. [v) Carter y. Tomsaint, 5 B. & (.s) See Blenkinsopp v. Clayton, 7 Aid. 855. Taunt. 697. Ix) Maherhy v. Sheppard, 10 Bins'. (t) itarshall y. Green, Jj.U.XG. v. 99. D. 35 ; n L. J. C. V. 153 ; sec ante, rOEMS EJ5QU1EED BY THE STATUTE. 247 them (y). Where a person bought a certain quantity of Cn. V. tares out of a larger bulk which he had before seen and '- — ~ approved, to remain in the seller's possession until wanted ; and the seller afterwards measured out the quantity and set them apart with orders that they should be delivered to the buyer when called for ; the buyer not having assented to such specific appropriation, it was held that there was no delivery and receipt (s) . — The seller's lien for the price depends upon Seller'slien his retaining the right of possession ; therefore " as long as the vendor retains his right of lieu over the whole of the commodity sold, there has been no such delivery and accept- ance as the statute intended "(a). Where a horse was sold for a ready money price and the buyer used it, but requested the seller to keep it for a time when he would fetch it away ; it was held that the seller retained his lien and that there was no delivery (J). Upon a sale upon credit for immediate delivery, though the goods may remain in the actual posses- sion of the seller, there is no lien whilst the credit lasts ; but a right of lien arises upon the insolvency of the buyer, analo- gous to the right of stoppage in transitu in the case of goods delivered to a carrier (c). Where the goods at the time of the sale are in the posses- Where the sion of a bailee or agent of the owner a constructive delivery in posses- and receipt may be elfected by all the parties, namely, the agent. ^^ seller, the buyer, and the actual possessor consenting that the right of possession shall be transferred, and that the actual possession shall be held no longer for the seller but for the buyer (d) . The concurrence of all the parties is necessary ; Delivery a mere delivery order given by the seller to the buyer is no (y) Saldey v. Farher, 2 B. & 0. [b) Tempest v. F.lzcjeraU, 3 B. & 37 ; see Bill v. Bament, 9 M. & W. AH. 680 ; see Carter v. Toiissaint, 5 36. B. & Aid. 855. (2) Howe V. Fahner, 3 B. & Aid. [c) Fer cur. BloxamY. Sanders, 4 B. 321, explained in Morton v. Tiibett, & C. 949 ; Townley v. Crump, 4 A. & 15 Q. B. 435. ' E. 58 ; Miles v. Gorton, 2 C. & M. (a) Holroyd, J., Baldey v. Farher, 504 ; see Grice v. Richardson, L. R. 2 B. & C. 44 ; per cur. Maberley v. 3 Ap. Ca. 319 ; 47 L. J. P. C. 48. Sheppard, 19 Bing. 101 ; Fhillips v. (d) See Blackburn on Sale, p. 248, BistoUi, and Dodsley y. Varley, cited cited Ex p. Barrow, 46 L. J. B. 73 ; ante, p. 242 ; Coleridge, J., Marvin Grigg v. National Ass., (1891) 3 Ch. T. Wallace, 6 E. & B. 726 ; 25 L. J. 206 ; 61 L. J. C. 11. Q. B. 370. 248 STATUTE OF FKAUDS. Paet I. receipt by the latter until communicated to the agent and accepted by him as transferring the possession ; nor is a mere delivery order given by the seller to the agent, until com- municated by the latter to the buyer (e) . And a warrant given by a warehouseman or wharfinger to the owner of goods, undertaking to deliver the goods to him or his assignee, which the owner on selling the goods assigns to the buyer, is no receipt by the latter, until the holder of the goods has notice of the assignment and agrees with the buyer to hold for him as owner (/). Acceptance Acceptance and receipt of part of the goods sold is and receipt rr> • ^ tn i ■ p i of part of sufficient to except the sale from the operation of the statute ; goo s so . ^^^ ^ sample of the goods is sufiicient, if it be delivered and accepted as part of the bulk (g) ; but the presumption is that a sample is merely a specimen of the goods contracted to be Acceptance delivered, and not part of the bulk (/i) . — Where an order is of goods . 1 • 1 1 • under given for Several articles, or a purchase is made of several contracts, parcels or kinds of goods at the same time under one contract for the whole, the acceptance and receipt of one article or of one parcel or kind of the goods is sufiicient to take the whole contract out of the statute («) ; as where four pockets of hops were sold at the same time at a price per hundredweight agreed upon in consideration of taking the whole, two of which were accepted on the spot and the other two were reserved for future delivery according to sample (A-). Whether a sale of several articles at the same time forms one contract or several contracts is a question of fact already noticed (/). A contract having been verbally made for the sale of a mare for 20/., but upon the terms that if the mare should prove to («) BentallY. Burn, 3 B. & C. 423 ; 340 ; see Xicholmu v. Boti-er 1 E & see Bill^r. Bameni, 9 M. & W. 36 ; E. 172; 28 L. J. Q. B. 97. CocAiYoie T. Jl/oor«, L. E. 25 Q. B. D. [h) Cooper y. Ehton 7 T R 14 57 ; 29 L. J. Q. B. 377. (i) Elliott x. Thomas, 3 M." & W. (/) Farina v. Home, 16 M. & W. 170 ; Bigg t. IFhislcing, 14 C. B. 195; 123 ; see Imperial Bank v. London Scoli v. Eastern Counties Rii 12 M JDoeks, L. R. S C. D. 195 ; 46 L. J. & W. 33. C. 335. (k) Jenner v. Smith, L. R. 4 C. P. [g) Hinde v. Whlteliouse, 7 East, 270. 5.'y8 ; GiUiat v. Roberts, 19 L. J. Ex. U) See ante, p 222 410 ; Gardner v. Grout, 2 C. B. N. S. FORMS REQUIRED BY THE STATUTE. 249 be in foal the buyer would on receivine' 121. from the seller Ch. v. . - Sect. II. return it on request; it was held to be one entire contract, '- — '- and not separate contracts of sale and resale, and that the acceptance and receipt of the mare took the whole contract out of the statute (m) . The 17th section also excepts from its operation the cases in Earnest which " the seller shall give something in earnest to bind the payment, bargain or in part payment." Earnest and part payment, it is said, are two distinct things ; but earnest may also avail as part payment. Earnest is lost if the party fails to perform the contract, and is presumptively brought into account as payment, if he performs it. " The expression in the contract that the money is paid ' as a deposit and in part payment of the purchase-money,' relates to the two alternatives, and declares that in the event of the purchaser making default the money is to be forfeited, and that in the event of the purchase being completed the sum is to be taken in part payment" (n). A mode of striking a bargain said to be customary in places, 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 does not amount to giving anything even for a moment (o). Part payment must be in acknowledgment of a contract, Part leaving it open to prove what the contract is; part payment for P^^™™ ■ part of the goods charged, but with a repudiation of the bar- gain as to the rest is not sufficient. Where goods were sold uporf the terms that a debt due from the seller to the buyer should be set off as part payment of the price, and when the goods were sent the buyer refused to receive them ; it was held that, the discharge of the debt resting only in agreement until completion of the contract, there was no part payment within the statute (p) . The completion of such an agree- ment by delivery and receipt of the goods would operate effectually in discharge of the debt, and might be proved for (m) Williams v. Burgess, 10 A. & (o) Blenkinsop v. Clayton, 7 Taunt. E. 499 ; see TTatts v. Friend, 10 B. & 597. C. 446. [p) Walker t. Nussey, 16 M. AW. in) Fry, L. J., Bowe v. Smith, 302, L. R. 27 C. D. 102; 53 L. J. C. 1055. 250 STATUTE OF FRAUDS. property. P-^^T I- that purpose, although the agreement was within the statute and could not have been enforced (q). ^ffectra Earnest or part payment changes the property in the goods according to the terms of the contract; though the delivery may be future (r) ; and though the goods may remain subject to a lien for the price (s) ; and the seller cannot resume the property and sell to another without notice to the buyer and demand of payment, upon refusal of which he may rescind the contract {t) . Upon a contract of exchange of goods with a sum of money to be paid for equality of exchange, and the payment of one halfpenny in earnest to bind the bargain, it was held that the property in the goods at once vested in the respective parties ; and therefore the one party might claim delivery of the goods from the other, without any delivery or offer of delivery on his part (m) . (q) Zavery v. Turky, 6 H. cfe N. 10 March, 1885. 239; 30 L. J. Ex. 49. See post, (s) Zanffford v. Tat/lor, 6Moi. 162; p. 254. Goodall v. Skeltmi, 2 H. Bl. 316. (?■) Ulahey v. Dinsdale, 2 Cowp. (i) Langford v. Taylor, supra. 664 ; see Greaves v. Lorigster, Times, \u) Bach v. Owen, 5 T. R. 409. 251 Sect. III.— OPERATION OP THE STATUTE OE EBAUDS. PAQE The statute operates upon the evidence — foreign con- tracts — pleading the statute 251 Contracts partly within the statute— contracts partly in writing 252 Operation of the statute upon executed contracts — opera- tion upon part executed contracts — dehts implied upon executed consideration 254 Operation of the statute in equity — where possession of land given under contract — alteration of existing pos- session — possession of title deeds , 257 Effect of part performance — payment of purchase money . , 259 Effect of the statute upon property in goods sold 260 The operation of the statute is expressed in different words in the several sections. By the 4th section it is enacted that " no action shall be brought whereby to charge " a person upon any contract within that section. By the 17th section it is enacted that no contract within its description " shall be allowed to be good." But the operation of the statute upon the contract is held to be the same under both sections. " It Statute is now finally settled that the true construction of the Statute upon the of Frauds, both the 4th and the 17th sections, is not to'render '^"'ie"'=e- the contracts within them void, still less illegal, but is to render the kind of evidence required indispensable when it is sought to enforce the contract "(«) . And if no action can be brought upon a contract for want of evidence to satisfy the statute, it cannot be made available between the parties by way of plea, or replication, or counterclaim, when properly put in issue by the opposite party (b). — Upon the above con- Foreign contracts. (a) Ld. Blackburn, Maddison v. {b) Carrington v. Moots, 2 M. c& W. Ald',rson, Ii. E. 8 Ap. Ca. 488; 52 248; see EeadeY. Lamb, 6 Ex. 130 ; L. J. Q. B. 737; see per mr. Britain Nobler. Ward, L. R. 1 Ex. 117; 2 V. Rossiter, L. R. 11 Q. B. D. 123 ; ib. 135 ; 36 L. J. Ex. 91 ; see ante, p. 48 L. J. Ex. 362. 33 ; post, p. 688. 25-2 STATUTE OF FRAUDS. Paet I. The statute must be pleaded. struction of the statute, that it operates upon the evidence only, (which is matter of procedure regulated by the lex fori and not by the lex loci contractus,) it follows that a foreign contract is within the operation of the statute ; and that if it is of a description to which the statute applies, it cannot be enforced in the courts of this country, unless the requirements of the statute in respect of evidence are satisfied (c) . Under the Judicature Acts the Statute of Frauds must be specially pleaded {d). It must not be pleaded inferentially, but with a distinct reference to the statute (e) ; nor in general terms, but with a distinct statement of the point in which it operates upon the contract charged (/). It is not necessary to plead the particular section relied on ; but a defendant who pleaded one section only was not allowed to set up a defence under another [g) . Contracts partly within the statute. The statute operates to prevent any action upon a contract, though part of the contract may not be within it ; and even though that part may have been executed : as a promise, ia consideration of staying proceedings against a debtor, to pay the debts and the costs of the proceedings ; which is within the statute as to the debt only, but will not support an action for the costs unless evidenced by writing and signature {h). And a verbal promise, in consideration of releasing a distress for the rent of another, to pay the rent due and also future rent, being within the statute as to the future rent, cannot be enforced for the recovery of the rent due {i). And a con- tract for the sale of goods to the value of 10/., together with other things not within the statute, for a certain price, was "held to be an entire contract upon which no action could be (c) Leroux v. Brown, 12 C. B. 801 ; 22 L. J. C. P. 1 ; but see Willes, J., Williams v. Wheeler, 8 C. B. N. S. 316. {S) Order XIX. rr. 15, 20 ; Order XXV. i'. 1 ; see Catling v. King, L. R. 5 0. D. 660 ; 46 L. J. 0. 384 ; Futcher ■V. Futcher, 50 L. J. 0. 735. (e) Clarke v. Clloir, 46 L. J. Q. B. 53; BtjrdY. Kmiii, L. R, 7 C. D. 284; 47 L. J. C. 1. (/) ru//eii V. Snehis, 48 L. J. 0. P. 394. {g) James v. Smith, (1891) 1 Ch^ 384. (/() Lexington y. Clark, 2 Vent. 223 ; Chatcr v. Becket, 7 T. R. 201. (i) Thomas v. Williams, 10 B. & C. 664 ; ante, p. 208 ; Lyudhurst, C. B., Wood V. Benson, 2 0. & J. 98. OPERATION OF THE STATUTK. 253 brought for the price without evidence in writing (k). — Upon Ch. v. the same principle a parol contract made for the letting of a house upon the terms of the landlord sending in furniture was held to be an entire contract ; upon which, being within the statute as to the house, no action could be brought for not sending in the furniture (/). And a parol letting of a house upon the terms of the tenant paying the cost of altera- tions and taking the furniture at a valuation, could not be put in action for the furniture and costs of alterations (m). And where land was let on lease together with the crops and tillages to be paid for at a valuation ; it was held that crops and tillages passed with the land, and could not be charged separately without a contract in writing (-«). And where an incoming tenant agreed verbally with the outgoing tenant for the possession of the land and that the latter should settle with the landlord for the rent due, it was held to be an entire contract, upon which the incoming tenant could not bring an action to recover the past rent for which he had been distrained by the landlord (o) . But where an incoming tenant contracted with the outgoing tenant for the sale of the crops, and also of the dead stock, at distinct prices ; it was held that there were distinct contracts, and that an action might be brought for the price of the latter which had been accepted, though the sale of the former was within the statute (p). Contracts partly in writing and partly by parol, or con- Contracts tracts in writing with parol variations, are equivalent as writing" regards the rules of evidence to parol contracts, and may be met by the defence of the statute (q) . Contracts in writing with collateral parol contracts concerning the same matter cannot be met directly by the statute ; and the collateral parol agreement may be charged in answer to a claim for (k) Harman t. Eeeve, 18 C. B. 587 ; (o) Hodason v. Johnson, E. B. & E. 25 li. J. C. P. 257. See Read v. 685 ; 28 L. J. Q. B. 88 ; but see Baldry, 6 A. & E. 459. Fulbrook v. Latves, L. E. 1 Q. B. D. 11) MecheUn v. Wallace, 7 A. & E. 284 ; 45 L. J. Q. B. 178 ; post, 49. p. 256. [m) Vaughan v. Hancock, 3 0. B. (p) MayfieldY. Wadsley, 3B. & C. 766. 357 ; and see Qreen v. Saddington, 7 (),) Falmouth v. Thomas, 1 C. & M. E. & B. 503. 89. (?) See «Kfe, p. 161 ; Turner, L. J., Price T. Saltisbury, 32 L. J. C. 452. 254 STATUTE OF FRAUDS. Pabt I. specific performance, notwitlistanding the statute ; and specific performance of the written contract will he granted only upon the terms of admitting and performing the parol agree- ment {r). In the case of a written contract for a lease, with a parol agreement to pay a certain sum as a premium, it was held that the statute could not he pleaded hy the lessor ; but that the lessee, submitting to pay the premium, was entitled to specific performance (s) . Operation of the statute upon executed contracts. But the contract is not a nullity ; it exists as a fact which the Court can take cognizance of for other purposes than those above stated ; and all acts done under it may be referred to the contract for their legal validity and efficacy {t). Money paid by a party under such contract cannot be recovered back so long as the other party is ready and willing to execute the contract, and there is no failure of the consideration for the payment (u) . Where a promissory note was given in payment of the purchase money of land, it was held to be no defence to an action on the note that there was no memorandum in writing of the contract of sale, without showing further that the vendor had refused performance on his part (a;). So a purchaser having paid the deposit on a contract of sale cannot repudiate the contract and claim a return of the deposit, merely on the ground that there is no written evidence of the contract (y) ; but if the vendor fails to make a title or refuses to complete, the purchaser is then entitled to the deposit upon the failure of consideration as money received to his use (s). Upon the same principle where a debtor agreed verbally with his creditor to give up to him the possession of a house in discharge of the debt and the possession was given up accord- ingly, the debt was discharged {a). And an agent employed ()•) Clarice v. Grant, 14 Ves. 519 ; Martin v. Pyeroft, 2 D. M. & G. 785 ; 22 L. J. C. 94 ; London ^ B. Eij. v. Winter, Cr. & Ph. 62 ; see ante, p. 163. (s) Martin v. Fycroft, supra. (() Selborne, L. C, Macltlison v. Alderson, L. E. 8 Ap. Ca. 475. («) Stoeet V. Lee, 3 M. & G. 452 ; Thomas v. Srowii, L. R. 1 Q. B D 714; 45 L.J. Q. B. 811. (.r) /ones v. Jones, 6 M. & "W. 84. (y) Thomas v. Broivn, supra. (s) Gosbell T. Archer, 2 A. & E. 500. [a) Latent v. Tm-leij, 6 H. & N 239 ; 30 L. J. Ex. 49 ; see Walker v. Nussei/, 16 M. & W. 302. OPERATION OF XHE STATUTE. 255 to buy goods for another and to pay the price, may recover Oh. v. the money so paid at the request of his employer, though the '■ — - contract for the goods did not satisfy the statute (i) . Upon the same principle a contract concerning an interest in land within the statute, as the sale of a growing crop of grass to be taken by the buyer, though not available as a contract for want of evidence to satisfy the statute, may be put in evidence as a licence to enter upon the land, in defence to an action of trespass (c). And an express contract within the statute, though it may not be chargeable in an action, serves to prevent any different contract being charged respecting the same matter, or any different presumption being raised from acts done in pursuance of the contract (d). Execution of the contract does not take it out of the opera- Operation tion of the statute, as to any part remaining executory, executed except under the equitable doctrine of part performance ; and <=""*'''*''*■ the Judicature Acts have made no difference in this respect (e). Thus in the case of an agreement to sell or transfer an interest in land for a promised sum of money, the interest having been transferred according to the agreement, the promise to pay cannot be charged upon the contract without written evidence to satisfy the statute (/). — But an implied Dettim- debt may arise upon the executed consideration of a contract executed within the statute, according to the general principles relating t^m? ^^^' to executed considerations {g). As where goods are sold and delivered or work done under the contract, the price may in general be recovered under an implied debt arising from the acceptance of the executed consideration (A). And where a party after accepting part performance of the consideration repudiates the contract and relies upon the statute, the other (*) Fawle V. Gunii, 4 Bing. N. C. v. Webster, 12 0. B. 283 ; 21 L. J. 445; Bee Simpson v. Penton, 2 C. & C. P. 163; see Sanderson v. Graves, M. 430. L. R. 10 Ex. 234 ; 44 L. J. Ex. 210. (c) Ante, p. 215. (g) See ante, p. 45. (d) Britain V. Eossiter, L. E. 11 (A) Souch v. Strawbridge, 2 0. B. Q. B. D. 123 ; 48 L. J. Q. B. 362. 808 ; Knowlman v. Bluett, L. E. 9 Ex. {e) See post, p. 259; Britain v. 307; 43L. J. Ex. 150 ; Jervis, C J., Rossiter, L. R. 11 Q. B. D. 123 ; 48 Barman v. Meeve, 18 C. B. 587 ; 25 L. J. Q. B. 362. L. J. 0. P. 259; and eee Bram- {/) Teal V. Auty, 2 B. & B. 99 ; well, B., Sanderson v. Graves, L. E Cocking v. Ward, 1 0. B. 858 ; Kelbj 10 Ex. 238 ; 44 L. J. Ex. 210. 256 STATUTE OF FKAtRS. Paet I. Money paid. Money received. Account stated. party may rescind the contract and charge Mm for the part executed consideration which he has received and kept(i). So in the case of a contract of service to continue for more than a year and a wrongful dismissal during the service, the servant may recover for the executed service though he cannot sue for the wrongful dismissal without proving a contract in writing {k) . But so long as a contract subsists no new con- tract can he implied from acts done under it, and such acts must he referred to the contract only(/). — Upon this prin- ciple where a contract imports an indemnity for expenses under it, and no action will lie upon the contract for want of written evidence, the expenses incurred and paid may be charged as an implied debt arising from the payment ; the contract operating as a request to make the payment («). And a verbal giiarantee of a debt, though within the statute, may operate as a request in fact to pay it, so as to entitle the surety to recover the payment from the principal debtor (»). — Where money has been received under a verbal contract within the statute by one of the parties to be paid over to the other, it may be claimed by the latter as an implied debt for money received to his use ; and the verbal contract may be proved to explain the terms on which the money was re- ceived (o) . As where a tenant agreed verbally with his land- lord that, in consideration of the landlord's consent to an assignment of the tenancy, he would pay over a certain sum out of the premium to be received from the incoming tenant ; upon payment of the premium, the landlord was held entitled to recover the sum agreed in an action for money received to his use {p) . — And a party may become bound by an account (») Mavor v. Fyne, 3 Bing. 285 ; ante, p. 46 ; Knoivtman v. Bluett, supra ; Karman v. Heeve, supra. [k] Snellwg v. Hunting tower, 1 C. M. & E. 20 ; Britain t. Eossiter, L. R. 11 Q. B. D. 123 ; 48 L. J. Ex. 362. {I) Britain v. liossiter, supra; ante, p. 255. (m) Ante, p. 39 ; see Fawle v. Gunn, 4 Bing. N. C. 445 ; Knowlman T. Bluett, L. B. 9 Ex. 307 ; PtilbrooJc Y. Zawes, L. R. 1 Q. B. D. 290 ; 45 L. J. Q. B. 178. (re) Alexander v. Vane. 1 M. & W. 611 ; see Simpson v. Benton, 2 C. & M. 430. (o) Grijith V. Young, 12 East, 513 ; see Sanderson v. Graces, L. K. 10 Ex. 234 ; 44 L. .T. Ex. 210. (p) Griffith V. Young, supra; see Boulter t. Killingieck, 1 B. & P. 397. OPERATION OF THE STATUTE. 257 stated respecting money paid under a contract within the Ch. v. «/ J: Sect. III. statute ; though the money could not be recovered under the '■ — '- contract for want of evidence to satisfy the statute (q). The construction and operation of the statute is the same Operation in equity as at law ; unless there is some special equitable statute in ground for taking a case out of its operation (/■). The mere ®i^^*y- want of writing cannot be made the ground of jurisdiction ; and there is no fraud in merely taking advantage of the statute («). But where it is part of the agreement that it should be put in writing, which is prevented by fraud, it is said that there is equitable ground for relief against the statute by admitting parol evidence (t). Exception has been made in equity in the case of contracts Where concerning interests in land within the 4th section of the sta- of land tute, where possession of the land contracted for has been in fact ^^er delivered and accepted under the contract ; in which case the contract. Court will receive evidence of the contract without regard to the statute in order to carry out the terms upon which posses- sion was given. The principle of the exception is that posses- sion of land of another is presumed not to be wrongful, but by agreement ; and therefore it is necessary to inquire into the agreement in order to limit the possession according to its terms and conditions (u). Thus the admission of a tenant into possession under an agreement for a lease takes the agreement out of the statute and admits parol evidence of the terms for the purpose of enforcing the lease (x). The posses- sion of a house was held to admit parol evidence of an agree- ment to grant the possession for life in consideration of the (q) See ante, p. 100 ; Teal v. Auit/, {fj Thurlo-w, L. C, Whitchurch v. 2 B. & B. 99 ; Seago t. Seane, 4 JBevis, 2 Bro. 0. C. 565 ; see Parker, Bing. 459; Cocking \. Ward, 1 C.B. L. C, Moniacute \. Maxwell, 1 P. 858. Wms. 618 ; Pr. Ch. 526. (r) BuUer, J., Brodie v. St. Paul, (u) Plutner, M. K., Morphett v. 1 Vea. jtm. 333 ; Cran-worth, L. C, Jones, 1 Swanst. 181 ; Grant, M. R., Caton V. Caton, L. R. 1 Ch. 146 ; 34 Gregory v. Mighell, 18 Ves. 383 ; L. J. C. 564. Jessel, M. R., TJngley v. Ungley, L. (s) Cottenham, L. C, Kirlc v. R. 5 C. D. 890 ; 46 L. J. C. S54. Bromley Union, 2 Phill. 648; Sel- [x) Gregorys. Mighell, supra; Mor- bome, L. C, Maddison v. Alderson, phctt v. Jones, supra; see Blore v. L. R. 8 Ap. Ca. 474 ; 32 L. J. Q. B. Sutton, 3 Mer. 237 : Morgan v. Mil- 737. m««, SD.M.&G. 24; 22 L. J. C. 897. L. S 258 STATUTE or FRAUDS. Faet I. payment of the ground rent and taxes {ij). And where a father verbally promised in consideration of his daughter's marriage to give her a house, and upon the marriage taking place put her in possession ; it was held that the promise was taken out of the statute and might be proved by parol evi- dence in support of the possession (0). — But the jurisdiction thus exercised by the Court over the possession of land does not enable the Court, in an action upon a contract within the statute, to give damages for a breach, instead of the specific redress by conforming the possession to the terms of agree- ment («). Alteration The continuance of a tenant in possession is presumptively 01 existing 1.11 . ni. . «. possession, referable to a contmuance of his tenancy and is not sufficient to take an alleged new agreement out of the statute (J). Nor are acts which are referable to an existing tenancy sufficient ; as cultivating the ground and doing ordinary repairs (c). But an alteration in the possession which is unequivocally referable to a new agreement is sufficient : as the payment of an increased rent (d) ; draining the land and laying down pasture (e) ; laying out money in buildings and improvements (/) ; sub-letting to a new tenant who lays out money in improvements vnth the knowledge of the landlord {g) ; altering buildings so as to acquire a new ease- Possession ment of light (li) . — Upon the same principle the delivery and deeds. possession of title deeds, as security for a debt, creates an equitable mortgage upon parol evidence of the intention of the deposit («'). But the mere continuance of the custody of (2/) Coles T. PilMngton, L. E. 19 L. J. C. 140. Eq. 174; 44 L. J. C. 381. [e) Mmidy t. JolUffe, 5'M. & Cr. («) Vngley v. Tlngley, supra; Sur- 167. emtbe v. Pinnigcr, 3 D. M. & d. 671 ; (/) lester v. Foxcroft, Colles, P. C. 22 L. J. C. 419. 108 ; 1 White & T. L. C. 6th ed. (a) Se Northumberland Hotel Co., 881 ; Sutherland v. Briggs, 1 Hare, L. E. 33 0. D. 16; Lavery^. Pursell, 26; per em: Plmmer v. Wellinqton, L. B. 39 C. D. 308 ; 57 L. J. C. 670 ; L. E,. 9 Ap. Ca. 710 ; 63 L J P C post, p. 963. 105. (J) Loughborough, L. C, IFills v. (g) TTilliams v. Evans, L. E 19 Stradling, 3 Ves. 381 ; Grant, M. E., Eq. 547 ; 44 L. J. C. 319. Frame v. Dawson, 14 Ves. 388. (A) MeJ/aims v. Cooie,' L. E 35 (c) Frame v. Dawsnn, supra. C. D. 681 ; 66 L. J. C 66" ■ ante (d) Wills V. Stradling, 3 Ves. 378 ; p. 216. ' Kiiiiu V. Faiian, L. E. 1 Ch. 35; 35 (i) ^inl,; p. 213. OPERATION OF THE STATUTE. 259 deeds, already in possession in another right, does not admit Ch. v. parol evidence of a new agreement to create an equitable '- — - mortgage or charge upon them (k). The atove exception of contracts concerning land from the Effect of operation of the statute, where possession has been delivered Jormance. and accepted, has been referred to the general principle of equity that where one party has performed the contract wholly or partially on his part, it would operate as a fraud if the other party could refuse performance on the ground of the statute ; the giving and acceptance of possession being considered as part performance (/). But the principle of part performance thus stated is not appHed to any other contracts within the statute than those concerning the pos- session of land (««). It does not apply to a contract of service not to be performed within a year, which is not taken out of the statute by service rendered under it (n) ; nor to a contract in consideration of marriage, which is not taken out of the statute by performance of the marriage (o) ; nor to contracts to answer for the debt of another, though performed by the party guaranteed giving credit {p) . — Payment of the Payment purchase money under a contract of sale of land has no effect money or in taking the contract out of the statute (q) ; but the pur- chaser acquires a lien upon the land for the sum paid ; or may recover it as money received to his use, upon failure of the consideration (r). And payment of the expenses pre- {k) Ex p. Broderich, Me Seetham, Jones, 2 D. & J. 76 ; 27 L. J. 0. 190 ; L. R. 18 Q. B. D. 766; 56 L. J. CatmY. Caton, L. R. 1 Ch. 137; 35 Q. B. 635. L. J. C. 292 ; Johnstone t. {T) Plumer, M. R., Morphett v. 60 L. J. C. 241. Jones, 1 S-wanst. 181; Turner, L. J., {p) Ld. Blackburn, Waddison v. Wilson V. West Hartlepool Ey., 2 D. Alderson, L. R. 8 Ap. Ca. 490. J. & S. 475 ; 34 L. J. C. 241. (q) Clinan v. Cooke, 1 Sclt. & Lef. (m) Britain v. Eossiter, L. R. 11 40 ; Knight-Bruce, li. J., SugAesy. Q. B. D. 123 ; 48 L. J. Q. B. 366 ; Morris, 2 D. M. & G. 356 ; see Bum- Selbome, L. C, Maddison t. Alder- phreysY. Green, L. R. 10 Q. B. D. son, L. R. 8 Ap. Ca. 474; Ld. Black- 148 ; 52 L. J. Q. B. 140 ; Selborne, bvim, ib. 489 ; but see Kay, J., L. C., Maddison v. Alderson, L. E. 8 McManus v. Cooke, L. R. 35 C. D. Ap. Ca. 478. 681 ; 56 L. J. C. 662. (r) Ante, p. 87 ; Eose v. Watson, in) Britain v. Eossiter, supra. 10 H. L. C. 672 ; 33 L. J. C. 385 ; (o) Ante, p. 211 ; LassenceY. Tier- Cairns, L. C, Aberaman Iron Works neij, 1 Mao. & G. 551 ; Warden v. v. Wiekens, L. R. i Ch. 109. s2 260 STATUTE OF FRAUDS. Paet I. paratory to completion have no efieot in taking the contract ' out of the statute ; as the expenses of surveying and valuing, of preparing and examining abstracts of title, and other expenses of a similar kind incurred upon the supposition of a valid contract (s). So with payment of the auction duty, which is a condition imposed upon the bidding, and not an act in performance of the contract (i!) . — With contracts for the sale of goods within the 17th section, part performance is expressly provided for by the statute, which excepts the cases where the buyer shall accept part of the goods or give some- thing in earnest or in part payment (m). Operation A contract for the sale of goods wathin the 17th section statute which does not satisfy the requirements of the statute is not property in effectual to pass any property in the goods to the buyer {x). goods sold, jjg cannot maintain an action for a wrongful conversion of the goods until the statute is satisfied and the contract capable of being proved ; nor is it sufficient to have obtained a memo- randum in writing after the conversion was committed [y). Consequently the buyer under such contract has no insur- able interest, and cannot recover upon a policy then effected by him upon the goods ; nor will an acceptance and receipt of part of the goods after the loss has occurred, though it may take the contract out of the statute from that time be effectual to support his claim (2) . — But if a buyer, having obtained a delivery order, resells the goods and transfers the order, the sub-vendee may obtain a good title under the Factors Act, though the origiaal sale was within the statute (a). And a verbal contract within the statute may be set up as giving a priority of claim to the property affected by it against a third party, who, not beiag personally charged upon it, cannot plead the statute (b). (s) WhaleyY.Sagenal, 1 Bro. P. C. (y) Felthouse v. Bindky, H C. B. 345 ; Clerk y. Wright, 1 Atk. 13. N. S. 869 ; 31 L. J. C. P. 204. [t) Buckmaster v. Barrop, 7 Ves. (z) Stockdak v. Diatlop, 6 M. & "W. 341. 224. See Inglis v. Stock, L. R. 10 (m) See ante, p. 248. Ap. Oa. 263 ; 54 L. J. Q. B. 582. {x) Nicholson v. Bower, 1 E. & E. (ff) SngUl v. Masker, L. K. 22 Q. 172 ; 28 L. J. Q. B. 97 ; see Kershaw B. D. 364 ; 58 L. J. Q B 171 ■ 40 V. Ogden, 3 H. & G. 717 ; 34 L. J. & 41 Vict. o. 39, s. 4. Ex. 159 ; Marshall v. Green, L. E. 1 (b) North, J., Miles v. New Zealand 0. P. D. 35 ; 45 L. J. C. P. 153. Co., L. R. 32 C. D, 279. Upon the same principle a buyer under such a contract Ch. v. OPERATION OF THE STATUTE. 261 oae principle a buyer under such a contract cannot in general sue the carrier, to whom the goods have been delivered by his order, for a loss of or injury to the canier to goods ; the carrier is liable to the consignor only ; nor can ^^^^_ °^ the liability be changed, nor a new liability created, by acceptance, or payment, or a memorandum in writing, made after the happening of the loss or injury complained of (c). And the seller, although he has delivered the goods to a carrier for the buyer, and they have been carried to their destination, may, at any time before an actual acceptance and receipt of the goods, retake possession of them {d). The question of property may arise between the seller and Bank- the trustee in bankruptcy of the buyer. "Where goods sold buyer, within the statute without a written memorandum were delivered according to the contract, and the buyer, finding himself in insolvent circumstances, refused to receive them ; it was held that the property in the goods never vested in him, and consequently his assignees in bankruptcy had no claim (e) . And where under a like contract the goods had been delivered at a railway station to the order of the buyer, who became bankrupt before any receipt of the goods ; it was held that the seller might rescind the delivery and reclaim his goods, and thereby exclude the claim of the assignees (/) . — A note or memorandum in writing of a sale of goods vnthin Bank- the 17th section of the statute, where there has been no sd?erf ° acceptance or payment by the buyer and the goods remain in the possession of the seller, is held to be an " assurance of personal chattels " within the Bills of Sale Acts, and there- fore requires registration in order to pass the property as against the trustee in bankruptcy and execution creditors of the seller {g). (c) Coats r. Chaplin, 3 Q. B. 483 ; (/) Smith v. Hudson, 6 B. & S. Morgan t. Sylies, cited ib. 486 ; Coombs 431 ; 34 L. J. Q. B. 145 ; see Solton V. Bristol ^- Exeter My., 3 H. & N. v. Lancashire ^ Yorkshire Uy. Co., 610 ; 27 L. J. Ex. 401. L. E. 1 C. P. 431 ; 35 L. J. C. P. (d) See ante, p. 243, n. («). 137. (e) Nicholson t. Sower, 1 E. & E. [g) Ee Roberts, L. E. 36 G. D. 196 ; 172 ; 28 L. J. Q. B. 97. 56 L. J. C. 952. 262 Chapter VI. CAUSES VITIATING AGREEMENT. Sect. I.— mistake. PAGE Mistake — modes of affecting agreement 262 Mistake in the act of agreement — in execution of deed — in bidding at auction 263 Mistake in expressing the agreement— of one party only — of one party known to the other 265 Mistake in expressing agreement common to both parties — ■ rectification of ■written agreement — setting aside agree- ment 268 Apparent mistake corrected by construction — mistake appearing in applying agreement — ambiguous expres- sions — latent ambiguity , 273 Mistake in facts inducing the agreement — ^mistake of one party — mistake of one party caused by the other — or known to the other — mistake conunon to both parties . . 277 Mistake in matter of law — mistake as to private rights . . 287 Paet I. An agreement, apparently complete and sufficient to create a Causes Contract, may be affected by causes which under certain Tere^ent conditions render it void or voidable of legal effect. These causes are classed under the heads of Mistake, Fraud, and Duress or undue influence, and are so treated in the three sections of this chapter. Mistake. Mistake is occasioned by ignorance or misconception of some matter, under influence of which an act is done; so that the intention and legal consequence presumptively attributable to the act are rebutted or modified by evidence Of law. of the mistake. — Mistake may occur ia a matter of law or in a matter of fact. But every person is presumed to know the law ; and a party cannot in general allege ignorance or mistake of law in avoidance of his acts or contracts. The Of fact. application of this principle is treated hereafter («). — Mistake in a matter of fact may in general be alleged in avoidance of [a] See post, p. 287. MISTAKE. 263 the consequences of acts and agreements ; but a person is not ch. vi. allowed to allege mistake in a matter of fact which it was his ^™' duty to know, or which, having the means of knowledge, it was wilful or negligent for him not to know; for in such cases knowledge is imputed to him (b). Mistake affecting agreements may be distinguished as Modes of 8iff6c1)iii&r follows : — It may affect the act of agreement, so that a party agreement, appears to agree when in fact he does not ; or it may affect the expression of the terms of agreement, which therefore express incorrectly or insuflQciently the actual intention ; or it may occur in the facts and circumstances which form the inducement to the agreement, so that the agreement made is not intended to apply to the actual facts and circumstances. — Further distinctions appear in the effect of mistake in the above cases : where the mistake is that of one party only, known or not known to the other ; and where it is a mistake common to both parties. A person may always dispute the act charged against him Mistake in as importing agreement ; he may show that it was done with aoreement. a different intention and under circumstances which do not render him responsible for the other party accepting it as agreement. Even in the case of agreements in writing and deeds signed and sealed, though a party cannot vary the written terms, he may contradict or qualify the extrinsic act of signing or sealing, which is the evidence of agreement (c). As if a person intending to sign an agreement as an attesting witness signs it by mistake in the wrong place as a party to be bound, the signing is a mere accident attended with no legal effect {d). If a person who is unable to read is informed of the con- Execution tents of a deed or writing by another person reading or ex- ^iti^g.""^ plaining it to him, and it is read or explained erroneously, he (b) Lord Blackburn, Brownie v. CD. 215; Goddard \: Jeffreys, 51 • 7, L. R. 5 Ap. Ca. 952, citing L. J. C. 58. Tindal, C. J., Bell v. Gardiner, 4 (c) See ante, ^. 158. M & G-. 24 ; James, L. J., Re Met- (d) BramweU, B., Wake^. Barrop calfe, L. K. 13 0. D. 236 ; 49 L. J. 6 H. & N. 768 ; 30 L. J. Ex. 277. C. 236 ; Tamplin v. James, L. R. 15 264 CAUSES VITIATING AGREEMENT. Faet I. may deny that it is his deed ; for it is at the risk of the party to whom the deed is made, being present, that the true efEect be declared to him, if required; but if he do not require it, he is bound by the deed(e). So "if several bonds are ■written upon one piece of parchment and one of them only is read to the obligor, and he, being a man not lettered, seals and delivers the deed, it is good for that which is read, and ab initio void for the others." And " if there are two abso- lute and distinct clauses in a deed, and the one is read to the party not lettered and the other not, the deed is good for the clause which was read, and ab initio void for the residue." A deed or bond consisting of an entire sum, and read to the obligor, being himself unable to read, for a less sum, and executed by him, is void for the whole (/). Where a person signed an instrument which he was then told and believed was a guarantee, but which was in fact a bill of exchange to which his signature appeared as the indorsement; it was held that inasmuch as he did not intend to sign a bill, he was not bound ; and consequently, unless guilty of such negligence as would preclude him from asserting the mistake, he was not liable as indorser even to a bona fide holder for value {g). — But if a person executes a deed knowing the contents, though mistaken in the legal effect, he cannot deny the execution; if he was induced to execute it by fraudulent misrepresentation of the effect, the deed may be voidable by reason of the fraud, but it is not void (A). And a person cannot deny the execution of a deed or instrument merely upon the ground that it is used for a different purpose than Bidding at he intended («'). — Upon the same principle in the case of a mistake. ^ bidder at an auction buying one lot, which he did not intend to bid for, in mistake for another lot, the Court refused to compel him to complete the purchase, leaving the vendor to («) ThoroughgoocV s case, 2 Co. 9a; C. P. 704; 38 L. J. C. P. 310. 11 Co. 27 i, Piffot's ease; Simons v. (A) Edwards v. Brown, I C & J Great West. Sy., 2 C. B. N. S. 620 ; 312 ; BirschJieU v. London J- B. Sy', aeeper cur. Foster v. Mackinnon, L. R. L. R. 2 Q. B. D. 1 ■ 46 L J O b' 4 C. P. 711 ; 38 L. J. C. P. 370. 94. ..«».. (/) 11 Co. 27 b, Pigofs ease. (i) Sunter v. JT'alters, L. E. 7 Ch. (g) Foster v. Mackinnon, L. E. 4 75 ; 41 L. J. 0. 175. MISTAKE. 265 his legal remedy for any damages caused by negligence of the Ch. vi. purchaser (7f). '—^ Where there is a mistake in the expression of the agree- Mistake in ment, the effect is different in the case of the mistake of one of the ' party only, and in that of a mistake common to both. — For ^s^^^™^"*- the simple case of a mistake of one party only in the expres- one party, sion of the agreement, it is sufScient to recur to the ele- mentary principle that the law judges of the matter of an agreement exclusively from the expressions of intention which are communicated between the parties. Consequently, as a general rule, an agreement is not affected by the mistake of either party in expressing the terms, of which the other party has no notice or intimation (/). In the case of an agreement in writing this is no more than an application of the general rule that the written terms cannot be varied by extrinsic evidence of intention (m) ; and it is the duty of the Court in general to construe and apply an agreement in writing without regard to the views of either party respecting the meaning (w). — Where a person intending to insure goods by one ship by mistake insured them by another, the under- writer, having taken the name and particulars of the ship from the insured, was held under no obhgation in respect of the ship intended to be, but not in fact, insured ; though if the ship or voyage insured were sufficiently identified, a mere misnomer of the ship would be immaterial (o). Where an insurance company granted a policy upon a life according to the terms of the proposal sent in by the insured, which con- tained a condition exempting the insurer from liability under the special circumstances of the death, the insured was held to be precluded from alleging that the condition was inserted by mistake, there being no mistake of the company or in the policy (i)). {/c) Malins v. Freeman, 2 Keen, 25 ; Stewart v. Kennedy, L. E. 15 Ap Ca po^t, p. 280. 108. (Vj See ante, p. 2. (o) lonides v. Pacific Ins., L. E. 6 {m) See ante, p. 153. Q. B. 674 ; seepost, p. 275. (n) Marshall T. Berridge, L. E. 19 (p) Fowler y. Scottish Equitable C. D. 233 ; 31 L. J. C. 329 ; Fres- Ins., 28 L. J. C. 225. ion V. Luck, L. K. 27 C. D. 497; 266 CAUSES VITIATING AGREEMENT. Paet I. Specific perform- ance of agreement with mis- take. Mistake ground for refusing specific perform- ance. The Court cannot grant specific performance of an agree- ment according to the intention of a party instead of the expression of his intention; or rectify an agreement upon a mistake of one of the parties only, because in such case there would be no real agreement by which to rectify it (q). Where a vendor by mistake has included in the contract of sale property not intended to be sold, the Court cannot compel the purchaser against his will to complete the sale exclusive of that property (r) . Though in some cases where the mistake is not material, as a small difference in quantity, the Court will grant specific performance with compensation for the deficiency (s) . Where a party claims specific per- formance of a contract upon a construction which is decided against him, he may in general waive his construction and obtain performance according to the construction found by the Court or that admitted by the defendant {t) . But if he has insisted and acted upon a mistaken construction the Court may refuse to grant performance in any form and dismiss the action (u) . On the other hand the Court will not grant specific per- formance against a party who was under a material mistake in expressing the agreement, where there is some reasonable ground for the mistake, or great hardship in enforcing it; but will give the other party only the damages he has sustained by reason of the mistake (x). Accordingly the Court in general refuses specific performance against a vendor who has by mistake included in the contract property which he did not intend to sell (y). And specific performance was iq) Pym v. Blaelciurn, 3 Ves. 34 ; Sells V. Sells, 1 Dr. & S. 42 ; 29 L. J. O. SOO ; Bentleij v. Machay, 31 Beav. 143 ; 31 L. J. C. 697. Seepost, p. 269. (r) Alvanley v. Kinnaird, 2 Mac. &a. 1. (s) See^os*, pp. 989, 992; McXenzie v. Sesketh, 47 L. J. C. 231. {t) Preston M. Luck, L. R. 27 C. D. 497. (!() Clowes T. Higginson, 1 V. & B. S24 ; Marshall v. Berridge, L. R. 19 C. D. 233; 31 L. J. C. 329; see Smith V. Wheatcroft, L. R. 9 C. D. 223 ; 47 L. J. C. 745. James, L. J., Benny v. Hancock, L. R. 6 Ch. 13. (x) Wigram, V.-C, Manser t. Back, 6 Hare, 447 ; Jessel, M. R., Mullins V. Howell, L. R. 11 C. D. 766 ; 48 L. J. C. 679; see TTatson v. Marston, 4 D. M. & G. 230 ; Tamp- Un y. James, L. R. 15 C. D. 215 ; Goddard v. Jeffreys, 61 L. J. C. 58. iy) Caleerley t. IVilliams, I Ves. jun. 210; Ba.rendalev. Scale, 19 Beav. 601 ; 24 L. J. C. 385 ; post, p. 285. See Alvanley v. Kinnaird, supra. MISTAKE. 267 refused against a vendor who had instructed his auctioneer Ch. VI. to sell suhject to the reservation of a right of way, but the '—^ auctioneer by mistake signed the contract upon particulars of sale which omitted the reservation (z) ; so where there was a mistake of the auctioneer as to the reserved price (a) . Where an offer was made by letter to sell at a price written as 1,250/. in mistake for 2,250/., which was accepted by letter, the Govixt refused to enforce the contract at the written price, the vendor having given notice of the mistake immediately upon discovery (b). So specific performance was refused of an agreement for a lease in which the lessor omitted by mistake the payment of a premium (c) . Where the reversion of land leased at a rent was sold, the vendor supposing that he would retain the rent (which was incident to the reversion), as well as the purchase-money, it was held that the purchaser could not have specific performance upon any other terms (i^). — The Court in refusing specific performance on the ground of the mistake of the party charged must give the other party the damages, if any, which he has sustained by reason of the mistake (e) . " The promisor is not bound to fulfil a promise in a sense Mistake of in which the promisee knew at the time the promiser did not known'^to intend it. And in considering the question in what sense a ^^^ °"'^^'" promisee is entitled to enforce the promise, it matters not in what way the knowledge of the meaning in which the promiser made it is brought to the mind of the promisee, whether by express words, or by conduct, or previous dealings, or other circumstances. If by any means he knows that there was no real agreement between him and the promiser, he is not entitled to insist that the promise shall be fulfilled in a sense to which the mind of the promiser did not assent" (/). A knowledge of the mistake not only will (z) Manser v. Bach, supra. (d) Wycombe My. v. Sonnington \a) Day v. Wells, 30 Beav. 220. Eospital, L. E. 1 Ch. 268. [b] TVebster v. Cecil, 30 Beav. 62. (c) Tamplin v. James, L. K. 15 [c) Wood V. Soarth, 2 K. & J. 33 ; C. D. 215. and see Joynes v. Statham, 3 Atk. (/) Hannen, J., Smiths. Eughes, 388. L. R. 6 Q. B. 597 ; 40 L. J. Q. B. 221. 268 CAUSES VITIATING AGREEMENT. PaetI. disentitle the party to specific performance, as in the cases above stated, but may also be a ground for setting aside the contract altogether, unless he will consent to rectify the mistake {g) . — Where the rent was entered in a lease by mistake at a less sum than agreed to the knowledge of the lessee, but the lessor executed the lease in ignorance of it ; it was held that the lessee must either give up the lease, or take a corrected one at the higher rent (Ji). Where land was sold by auction according to an advertisement describing it by mistake as including a certain parcel, but the purchaser had been supplied with a particular description of the land excluding that parcel, it was held that he could not enforce the sale according to the description of the advertisement (i). So where the purchaser prepared a conveyance including property which was not included in the plan furnished to him by the vendor, and the vendor executed the conveyance in the mistake that it agreed with the plan, the Court ordered that the conveyance should be annulled with a return of the purchase-money, unless the purchaser would take it as recti- fied Qc) . Where a lessor granted a lease of land, knowing that as to part he had no title, and the lessee took the lease in ignorance of the defect of title, it was held that the lessee had an election either to have the lease annulled, or to take the part for which title could be given with damages for the rest under the covenant for title (l). Mistake in expression of agree- ment common to both parties. By the rule of common law a written contract as expressed by the parties could not be varied by extrinsic evidence of intention, for the purpose of correcting mistakes in the ex- pression {m). But the Court of Chancery administered relief against such'mistakes by conforming the performance to the real agreement, and if necessary by rectifying the written {g) Paget t. Marshall, L. E. 28 CD. 255; 54 L.J. 0. 575. (A) Garrard v. Franlccl, 30 Beav. 445 ; 31 L. J. 0. 604 ; see Woollam T. Hearn, 7 Ves. 211. (J) Caherkij v. Williams, 1 Ves. jun. 210. (Ic) Harris v. Pejjperell, L. R. 5 Eq. 1 ; and see Paget v. Marshall, supra. {I) Mosti/n r. Mostyn Coal Co.,!,. R. 1 C. P. D. 145 ; 45 L. J. C. P. 401. {ill] See ante, p. 153 ; Saunderson T. Piper, 5 Bing. N. C. 425; ante, p. 186 ; Halheady. Young, 6 E. & B. 312 ; 25 L. J. Q. B. 290. MISTAKE. 269 contract, and incidentally thereto by restraining proceedings Ch. vi. Spot I at law upon the contract as written (w). Now under the '-^ Judicature Acts all divisions and judges of the Court exercise the same equitable jurisdiction ; but " there shall be assigned (subject as aforesaid) to the Chancery Division of the said Court : all causes and matters for {inter alia) the rectification, or setting aside, or cancellation of deeds or other written instruments" (o). — In the exercise of equitable jurisdiction evidence of a common mistake of both parties in expressing their agreement is generally admissible for all purposes. If Specific a plaintifE claims specific performance of a contract in the ance. terms in which it is drawn up, the defendant may resist the claim by showing that it was drawn up by mistake and does not represent correctly the terms of agreement (p) . If it appears from the evidence of the defendant what the. real agreement was, the plaintiff must submit to take specific per- formance of the agreement so proved, or his claim will be dismissed (g). And if he refuses to take it as proved, the Court may grant specific performance at the instance of the defendant, without putting him to the expense of a cross action to rectify the vn-iting (r) . There is an original jurisdiction in equity to rectify a Eectifica- written contract containing a mistake of both the parties in written expressing the agreement, and to make it accord with the ^°^ ^^'^ ' agreement intended to be expressed («). A plaintiff may claim rectification of a contract together with specific per- formance of the contract as rectified {t) ; and a defendant may claim rectification by counterclaim or by a cross action (w) . (n) See Druif v. Farker, L. R. 5 62 ; Fry, J., Smith v. Wheatcroft, Eq. 131 ; 37 L. J. C. 241 ; post, L. R. 9 C. D. 227 ; 47 L. J. C, p. 271. 745. (o) Judicature Act, 1873, ss. 24 34 ; see Mostyn v. Mostyn Coal Co. L. R. 1 C. P. D. 145 ; 45 L. J. C. P 401. (p) Joynes v. Statham, 3 Att. 388 Garrard v. Grinling, 2 Swanst. 248. (q) Eamsiottom v. Oosden, 1 V. & B, 165 ; Gordon v. Eertfm-d, 2 Madd. 106 ; Cottenham, L. C, Zm^don # 33 C. D. 30; 55 L. J. C. 854 Birmingham Ry. v. Winter, Cr. &Ph. (r) Mfe T. Clayton, 13 Ves. 546 Gwynn v. Lethhridge, 14 Ves. 585 see Higginson v. Clowes, 15 Ves. 616, (s) Hardwicke, L. C, Senkle v, Royal Exchange Ass., 1 Ves. sen. 318 {«) OUey T. Fisher, L. R. 34 C. D 367 ; 56 L. J. C. 208. (u) Kay, J., Cuird y. Moss, L. E, 270 CAUSES VITIATING AGREEMENT. Paet I. " 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 reaUy so intended " («) ; and for this purpose the Court necessarily receives evidence of the true agreement in contradiction of the written agreement {y), and parol evidence of the mistake is admissible to rectify the writing, though the contract is one required to be proved by writing by the Statute of Prauds (z). — The Court will grant the relief to a plaintiff who himself drew the instrument with the mistake («) ; and can grant it upon the uncontradicted evidence of the plaintiff alone (i). But an action cannot be brought to rectify a contract, after a former action upon the contract which has proceeded to judgment and satisfaction, without the question of mistake or rectification having been raised (c) . Eectiflca- In the case of a policy of marine insurance varying from policy. the preliminary slip or memorandum of the terms agreed upon, the question arises whether the variation is by mistake or intentional, and if it is by mistake the Court will rectify the policy by the slip, and although a loss has intervened {d). Where the slip for the insurance of a ship described the risk as beginning at and from a named port, and the policy by mistake described it as from the port only ; the policy was rectified so as to cover a loss at the port (e) . Under an open policy of insurance upon goods to be declared as shipped in order of shipment, it was held that the insured might, according to a usage of merchants and underwriters, correct a (x)'i:axnev,'L.3.,BentleyY.Mackat/, 666; 44 L. J. C. 755; SanUy v. 4 B. F. & J. 286 ; 31 L. J". C. 709 ; Pearson, L. E. 13 C. D. 545; Cook v. James, V.-O. , Mackemie 7. Coulson, Fearn, 48 L. J. C. 63. L. R. 8 Eq. 375 ; post, p. 273. (c) Ca\rd v. Moss, L. B. 33 C. D. {y) Hardwicke, L. C, Baker v. 22; 55 L. J. C. 854 ; see Att.-Gen. Paine, 1 Ves. sen. 457 ; Eldon, t. Tomline. L. E. 7 C. D. 388. L. C, Beaumont t. Bramley, T. & R. (d) Mackenzie v. Coulson, L. R. 8 53; Grant, M. E., Winch v. Win- Eq. 368; see lomdes v. Pacific Ins. Chester, 1 V. & B. 378. See ante, Co., L. E. 7 Q. B. 517. P- 158. («) Motteux t. London Ass. Co., 1 («) ie« Boulter, L. E. 4 G. D. 241 ; Atk. 546 ; see Henkle v. Poyal JEx- 46 L. J. B. 11 ; ante, p. 234. change Ass., 1 Ves. sen. 318; Colonial 'a) Ball V. Storie, 1 Sim. &S. 210. Ins. v. Adelaide Ins., L. R. 12 Ap /)) Smith V. Ilife, L. E. 20 Eq. Ca. 128; 56 L. J. P C 19 MISTAKE. 271 mistake in tlie order of declariag the shipments after a loss Ch. vi. had become known, so as to bring the goods within the insurance (/). — A bill of exchange, drawn in renewal of a BUiof former bill between an indorsee, drawer, and acceptor, had by mistake the name of the indorsee inserted in the place of drawer, in which form the bill was accepted and indorsed to him ; and an action commenced by him as indorsee having been met by the defence that his name appeared on the bill as drawer, he sued in equity for rectification of the instru- ment, and for an injunction against the defence at law ; and the Court held that, the remedy failing at law, the bill must be rectified (g). A deed of conveyance will be rectified which has been Eeotifioa- drawn by mistake to convey a part only of the property sold convey- instead of the whole ; and the Court held that an order for rectification indorsed upon the deed was effectual to pass the legal estate without a conveyance of the other moiety (h) . So an appointment by a deed poll was rectified which by mistake included the whole property within the power instead of part only(«). So in proceedings in bankruptcy where a memorandum of mortgage misdesoribed the property, which was otherwise specifically identified, the Court ordered that the document must be treated as rectified so as to give the security intended (A-). — The Court rectified a lease by making the lessee Leases. liable for land tax according to the written agreement for the lease (1). And a lease of a house "together with all lights and easements thereto belonging," was read with the addition of a proviso contained ia the agreement for the lease, excluding any right to light over the adjacent property of the lessor, in an action against the latter for obstruction of the light (m). — (/) /Stephens v. Australasian Ins., (i) Wright v. Goff, 22 Beav. 207; L. B. 8 C. P. 18; 42 L. J. 0. P. 12. 25 L. J. C. 803. See Cotirthope v. (g) Druiff Y. Parher, L. K. 5 Eq. Daniel, 2 H. & M. 95. 131 ; 37 L. J. C. 241. (k) He Soulier, L. K. 4 C. D. 241 ; (A) White Y. While, L. E. 15 Eq. 46 L. J. C. 11. 247 ; 42 L. J. C. 288 ; see Manley y. (l) Murray v. Farker, 19 Beav. Pearson, L. R. 13 C. D. 549 ; Beaumont 305. V Bramley, T. & E,. 41 ; Bloomer v. (m) Salaman v. Glover, L. E. 20 Spittle, L. E. 13 Eq. 427 ; 41 L. J. Eq. 444 ; 44 L. J. C. 551. C. 369. 272 CAUSES VIT1ATINC+ AGREEMENT. Paet I. Marriage settle- mfents. Setting aside contract where no real agreement. Marriage settlements are rectified upon the following prin- ciples : — If articles are drawn up, and a settlement afterwards made before marriage without reference to the articles, in ease of difference between them, the settlement would presumptively avail, as being the later document and made while the parties are still at liberty to make a new agreement ; but it is admissible to prove by evidence that the settlement was intended to follow the articles, and that the difference was a mistake, and the settlement may then be rectified. If, however, the settlement expressly purports to be made in pursuance of the articles, that is sufficient without further evidence, and the difference between them will be rectified. If articles are made before marriage and the settlement is made after, and not in conformity with the articles, although not expressed to be made in pursuance of the articles, the Court will rectify the settlement, because upon the face of it not what the parties were bound to («). The Court will rectify a settlement of the wife's property in which the ultimate limitation, upon the death of the husband without issue, is made to her heir or next of kin, instead of to herself ; as being presumptively against the intention (o) ; and for a similar reason a voluntary settlement of family estates by a father and son, without providing any powers of jointuring or portioning, was rectified by inserting a power of revoca- tion, with the view of making a new settlement with all proper powers {p). Where it appears that no real agreement existed between the parties, the Court cannot rectify the written contract • but if necessary may set it aside. " Courts of equity do not rectify contracts; they may and do rectify instruments purporting to have been made in pursuance of the terms of contracts. But it is always necessary for a plaintig to show (o) Smith T. Ihfe, L. E. 20 Eq. 666 ; a L. J. C. 755 ; Sanlei, v. Pmrsoii, L. E. 13 C. D. 645 ; Cook v Fearn, 48 L. J. C. 63. See Best's Settlement, L. K. 18 Eq. 686 ; 43 L. J. C. 545. (p) Jfelman r. JFeluian, L. E, 15 C. D. 570 ; 49 L. J. C. 736. («) Zeff^ v. Goldwire, Ca. temp. Talbot, 20 ; 1 White & Tud. L. 0. 6tli ed. p. 17 ; Breadalbane v. Chan' clos, 2 M. & Cr. 711 ; Bold y. Hutch- inson, 5 D. M. & G. 568 ; 26 L. J. C. 598 ; Cof/an v. Duffield, L. R. 2 C. D. 44 ; 45 L. J. G. D. 307; Be Badeock, L. R. 17 C. D. 361. MISTAKE. 273 that there was an actual concluded contract antecedent to the Ch. vi. instrument which is sought to be rectified; and that such '—^ contract is inaccurately represented in the instrument. It is impossible for the Court to rescind or alter a contract with reference to the terms of the negotiation which preceded it" (q). And "if the parties took different views of what was intended, there would be no contract between them which could be carried into effect by rectifying the instru- ment" (r). — Accordiugly, where an agreement was drawn up for the lease of land described as " in the occupation of S.," both parties having in fact agreed that some land should be taken from that occupation, but without agreeing as to the quantity or place ; the Court refused to rectify the agree- ment according to the views of either party, or to grant specific performance as it stood (s). Where it appeared that one party intended to purchase a property at the price of £2,500, and the other party, having a lease with the option of purchase for £2,000, intended to sell his lease and option for £500 ; and an agreement was drawn up purporting to buy and sell the lease and option for £2,500 ; it was held that as the agreement expressed the intention of neither party it must be set aside (t). A mistake in the expression of a written contract which is Apparent apparent upon the face of the instrument without extrinsic corrected evidence may be rectified by the context ; and the contract is struction. construed in accordance with the obvious intention, both at law and in equity (u) . — Upon this principle in construing bonds : — in the penalty of a bond the word " pounds " was supplied to the number given, the condition of the bond being to pay pounds sterling {x) ; the condition of a bond to {g) James, V.-C, MaeJcetizie v. (s) Toionshend v. Stanp-oom, 6 Yea. Couhon, L. R. 8 Eq. 373. 328. (»•) Turner, L. J., Bentley v. [t) Price v. let/, i Giff. 235 ; 32 Mackmj, 4 D. F. & J. 286 ; 31 L. J. L. J. C. 530. C. 709; Romilly, M. R., Baxendale (u) 10 Co. 133 a, Osborn's case; v. Scale, 19 Beav. 601 ; 24 L. J. C. Wilson v. Wilson, 5 H. L. C. 40; see 388; and see Woollam v. Seam; ante, -p. WO. Garrard v. Frankel, ante, p. 268. [x) Coles v. Knlme, 8 B. & C. 568; see Fhipps v. Tanner, 5 C. & P. h. 274 CAUSES VITIATING AGKEEMENT. -Pabt I. pay " one pounds " was read as " one hundred pounds " (z) ; "the condition of this xjbligation shall be void " was read "this obligation " shall be void («) ; and the condition of a bond to be void " if the obligor did pay " was read " did not pay " (i). So the date of a promissory note was read as corrected by a contemporaneous memorandum made by the drawer upon the note stating the day of falling due (c). Where in a series of deeds relating to the same transaction, £1,200 was written in one instance instead of £1,400, the Court read it correctly without a suit to rectify the mistake (d). And a lease for ) the term of 94 years " at a rent payable " during the said term of 91 years hereby demised" was construed by the counterpart to mean a term of 91 years only (e). — Where there is an apparent mistake in the name of a person, or where the name of one person has been written in mistake for that of another, the Court wiU. read the instrument with the mistake corrected (/) . So where the name of the grantor was omitted in the operative pai-t of a deed {g) ; and where the name of the obligee was omitted in a bond (//) ; and where the name of one estate was written for another by a clerical mistake made in adapting a similar clause to both estates («'). — Upon the same principle a deed may be construed and read as corrected by the recitals of the intention (j) ; and words and clauses may be omitted or inserted to carry out the obvious intention, upon the pre- sumption of a mistake in drawing the deed (k). Thus in a marriage settlement the word " heirs " was added throughout (z) TFaui/hv. Susseil, blannt. 707. Kirlc v. U>iwin, 20 L. J. Ex. 345; [a] Maulever v. Eawxby, 2 Wms. TFilson v. TTilsoii, 5 H. L. C. 40 ; 23 Saund. 78 ; 1 Mod. 35 ; see Aveiy v. L. J. G. 697. White, 1 L. Raym. 38. (17) Saij and Seal's case, 10 Mod. (5) L. St. Leonards, TFilson v. 46 ; Bmt v. Clayton, 33 L. J. C. 503. Wilson, 23 L. J. C. 703. {h) Langton \. Goole, 3 Lev. 21. (c) Fiteh V. Fitch, 5 E. & B. 238 ; (i) Ee Xorthen's Estate, L. R. 28 24 L. J. Q. B. 293; see Lamb v. C. D. I.'i3 ; 54 L. J. C. 273. Bnwe, 45 L. J. Q. B. 538. {j) Eldon, L. C, Beaumont v. (cT) Scholejield^. Loclaoood, 32 Beav. Brawley, T. & R. 5'' ■ Toung v 436 ; 33 L. J. C. 106. See Elliott v. Smith, L. R. 1 Eq. 180. Freeman, 7 L. T. N. S. 715. (/,■) James, V. C, Be La Toiiche's {c) Burchell v. Clark, L. R. 2 0. Setthiimit, L. R. 10 Eq 603- 40 L P. D. 88 ; 46 L. J. C. P. 115. J. C. S,5 ; see Allin v. Crausha,,, 9 (/) Cull V. Sarmlii, 3 Lev. 66; Hare, KS2 : 2lL. J. C. 873; andsee Spyu Y. Topham, 3 East, 115; The (i,ite, p. 272, notes (0), (u). QiieiH V. WooMale, 6 Q. B. 549; MISTAKE. 275 in the limitations of the real estate, as being obviously Ch. vi. necessary to support the trusts (/). But where a lease, after '-^ setting out certain covenants of the lessee, went on to provide for a right of re-entry by the lessor if any of the covenants " hereinafter contained " on the part of the lessee should be broken, and there were no further covenants on the part of the lessee; the Court refused to reject the words " hereinafter contained " for the reason that the mistake might have been in the omission of the covenants (»»). Upon a like principle where an obvious mistake appears in Mistake applying the contract to the facts the instrument will be m appl-y- construed and applied according to the intention : as where ^ol^act an agreement bearing a certain date referred to a bill of exchange " payable at three months from this date," and it appeared that the only bill applicable bore a different date (») ; and where an agreement to let a house described it by a number, and it appeared that the house intended bore a different number (o). So in the case of insurance of a ship, if the ship is sufficiently identified a mistake in the name is immaterial (^). And generally, where the subject of con- tract is sufficiently ascertained a mere error of description, falsa demonstratio, may be rejected or corrected in the appli- cation (§'). A written contract may be expressed in such general or Ambiguous ambiguous terms as to admit of different constructions ; in sions. which case, though the written contract must be applied, if possible, according to its terms, it is open to either party to allege, consistently with the terms, that he accepted the con- tract with a different construction to that charged by the other party, so that there is no real agreement between them. And extrinsic evidence of the mistake is thus admissible to {t) Bird's Trusts, L. E. 3 C. D. 809. 214. (p) Le Mesurier v. Vaughan, 6 («;) Doe T. Godwin, 4 M. & S. 265. East, 382 ; see lonidesY. Facijiclns., [n) Way v. Bearne, 13 C. B. N. S. L. E. 7 Q. B. 517 ; 41 L. J. Q. B. 292 ; 32 L. J. 0. P. 34. 190 ; ante, p. 265. (o) Hntchim v. Scott, 2 M. & W. (?) See ante, p. 190. 276 CAUSES VITIATING AGREEMENT. Paet I. prevent the contract being enforced against the intention of either party (r). — Thus where the particulars of a sale by auction were ambiguous as to including or excluding the timber, and the vendor and purchaser accepted them with the different meanings, it was held that specific performance could not be decreed upon the construction of either party («). Where a contract was made for the sale of the reversion of an undivided moiety of an estate, describing the property as then let at a certain rent, but leaving it doubtful whether the half or the whole of the said rent was incident to the reversion, the Court refused specific performance according to the construction of the vendor of a sale of half the rent, upon the ground that the purchaser believed that he had purchased the whole (t). Latent ^ written agreement, though expressed in certain and ambiguity. ° . „ unambiguous terms, yet m reference to the facts may be found to admit equally two different applications. There is then a latent ambiguity which may be explained by extrinsic evidence of the intention of the parties as to the application of the contract ; and if it appears that each party mistook the intention of the other, and that they intended different things by the same expression, then the basis of agreement fails and the contract is void {u) . — Thus, where an agreement was made for a lease of premises " as per plan agreed upon," and it appeared that two plans had been inspected, but neither finally accepted by both parties; it was held that there was no agreement which could be specifically en- forced (a;). Where a contract was made for the sale of a cargo " to arrive ex Peerless from Bombay," and it appeared that there were two ships of that name then arriving from Bombay, and that the buyer meant the one, and the seller meant the other ; it was held that there was no contract, and in an action for not accepting the cargo, a plea that the seller was not ready to deliver the cargo which arrived by the ship ('■) See ante, p. 183. U) Swaisland y. JDearsley, 29 Beav. (s) Higginson v. Clowes, 15 Ves. 430 ; 30 L. J. C. 652. 516 ; Clowes v. Sigginson, 1 V. & B. («) See ante, p. 182. '''24- \x) Sodges v. Borsfall, 1 Euss. & M. 116. MISTAKE. 277 intended by the buyer was held a good plea (y). The master Ch. vi. of a ship chartered it to a broker upon certain terms as to freight ; who again chartered it in his own name to a shipper upon different terms; the shipper loaded a cargo and took bills of lading from the master conditioned for " freight pay- able as per charter-party " ; each of them intended the bill of lading to refer to his own charter-party and knew nothing of the other ; it was held that " the bill of lading being ambiguous and equally capable of being applied to the one charter-party as to the other, could not be a contract or evidence of a contract between the parties " ; and that for the same diversity of intention there was no implied liability to the master to pay a reasonable freight (s) . A mistake may be made in some fact or circumstance, Mistake . , . . of fact collateral to the agreement itself, which materially induces inducing one or both of the parties to make the agreement, so that in mentf^^^' reference to the real facts and circumstances, the intention of agreement fails ; the consequences of which are different where the mistake is that of one party only, and where it is common to both parties. — The mistake of a party in some Mistake fact or circumstance which may have induced him to make ^^7! the agreement, if it does not enter into the agreement as a condition or warranty, and if the other party is not implicated in the mistake, is immaterial to the validity at law and cannot be alleged in avoidance of the agreement : as where a sale was made of a hundred chests of tea out of a certain cargo, warranted equal to a sample shown at the time of the sale, which the seller then mistook for, but which was not in fact, a sample of that cargo («) ; where a builder took a contract for work to be completed for a certain sum, upon an erroneous statement of the quantities which had been, taken out by the architect, the employer not knowing or being responsible for (i/) Safflcs V. V'ichelhaus, 2 H. & Arms Co., 46 L. J. Q. B. 213; Birrell C. 906 ; 33 L. J. Ex. 160. v. Dryer, L. E. 9 Ap. Ca. 346; ante, (z) Smidt V. Tiden, L. R. 9 Q. B. p. 17:2. 446; 43 L. J. Q. B. 199. See other (a) Seott v. Littledale, 8 E. & B. examples, Roden v. London Small 815 ; 27 L. J. Q. B. 201. 278 CAUSES VITIATING AGKKEMENT; ^-^^^ ^- the mistake (a) ; wliere a person applied for shares in a company under a mistaken belief that he required them to qualify himself as a director, and upon the winding up of the Mistake in company was made a contributory (b). — Where a person buys goods. an article upon his own opinion as to its nature, or quality, or adaptability to some purpose, which proves to be mistaken, his mistake, unless induced by the seller, is immaterial to the validity of the contract : as in the case of a person buying a horse without warranty, believing it to be sound or useful for some special purpose, and the horse turns out unsound or not equal to the expectation; and in the case generally of the sale of a specific chattel in its then state and condition without warranty, which is found to have a latent defect (c) . Thus, where a sale of oats was made by a sample which the buyer, a trainer of horses, supposed to be old oats and there- fore suitable for his purpose, nothing being said at the time about the quality of the oats ; it was held that unless the seller understood the buyer to stipulate as to the quality of the oats the sale was good, though the oats were in fact new Mistake in and not suitable to the purpose of the buyer {d). — Upon the party. Same principle a mere mistake as to the identity of the person with whom a contract is in fact made is immaterial to the validity, in the absence of fraud or misrepresentation inducing the mistake ; so that in the case of a sale of goods to a person under a mistake as to his identity the property would pass, unless the buyer knew that the seller did not intend to sell to him(e). If the contract was not in fact offered to the party in question, so that there was an original variance between the person to whom the oiler was addressed and the person purporting to accept it, there would in fact be no agreement to found a contract (/). Speoifio The mistake of. a party in a matter inducing his ao-reement perform- ° ° (a) Scrivener Y. Pask, L. R. 1 C. P. 715. (S) Fowler's ease, L. R. 14 Eq. 316; 42 L. J. 0. 9. (c) Parke, B., Sutton v. Temple, 12 M. & W. 64. {d) Smith V. Hunhes, L. R. 6 Q. B. 597; 40 L. J. Q. B. 221; ante, p. 267. See Carter t. Criek, i H. & N. 416; 28 L.J. Ex. 238. (f) See Lindsa,/ v. Ciindij, 2 Q. B D. 96 ; 46 L. j. Q. B. 233, ante, p. 21. (/) See ante, p. 20. MISTAKE. 279 affords in general no answer to a claim for specific perform- Ch. vi. ance : as where a purchaser bought a house under the mistake that it was situated in a particular county, of which he wished granted, to become a freeholder {g) ; where a purchaser bought land in the mistaken expectation of procuring a consent which was required for building on it (A) ; where a purchaser was under a mistake of his own, that a piece of land occupied with the land sold formed part of it {i) ; where a vendor had made a mistake in the valuation of timber, which was sold by auction with the land at a fixed price (A) ; where a lessee agreed to take a mining lease at a fixed rent and royalties under the mistaken supposition that a vein of coal existed in the demised land, there being no warranty or misrepresenta- tion as to the existence of the coal (/) ; where a lessor agreed to let land under the mistake of being entitled to the entirety instead of an undivided moiety only, specific performance was decreed as to the moiety with corresponding abatement from the rent {m) . But where a lessor granted an under- lease for a longer term than he possessed, under a mistake as to the duration of his term, it was held that the lessee, who might have inquired into the lessor's title, had no claim for compensation or damages {n). But the Court may refuse specific performance against a Specific jjarty who was induced to enter into the contract by mistake ance of some material fact, where there would be hardship amount- ing to injustice in enforcing it; though the other contracting party was not implicated in the mistake, nor aware of it ; leaving the latter to recover damages for any loss he may have sustained (o) : as where a vendor sold land under the mistake ig) Shirley v. Davis, cited by {m) Bnrrow v. Scammell, L. E. 19 Eldon, L. C, 6 Ves. 678 ; 7 Ves. C. D. 175 ; 31 L. J. C. 296. 270. («) Clayton v. Leech, L. E. 41 C. D. (A) Adams v. Weare, 1 Bro. 0. 0. 103. See Palmer v. Johnson, L. E. 667. 13 Q. B. D. 351 ; 63 L. J. Q. B. (i) Stapylton v. Scott, 13 Ves. 425 ; 348. Tamplin v. James, L. E. 16 C. D. (o) Plumer, M. E., Howell r. 215. George, 1 Madd. 11; James, V.-C, ik) Griffiths v. Jones, L. E. 15 Tamplin v. James, L. E. 15 C. D. Eq. 279; 42 L. J. 0. 468. 221; Kay, J., Goddard v. Jeffreys, [l] Jefferys v. Fairs, L. E. 4 C. D. 61 L. J. 0. 59. Seeposi, p. 983. 448 ; 46 L. J. 0. 113. refused. 280 CAUSES VITIATING AGREEMENT. Part I. Mistake of fact caused ty the other party. Specific perfoim- ance refused. that he was selling in his own right and would be entitled to the purchase naoney absolutely; whereas he would be entitled only as trustee for re-investment (p) ; where trustees sold for a very inadequate price in mistake of the real value through the negligence of their surveyor in withholding a valuation (q) ; where the vendor had instructed an agent to make a reserve bidding, who by mistake omitted to bid (r) ; and where a purchaser at an auction purchased a lot in mistake for the one he intended to purchase (s). If the mistake is as to the power of the party to complete the contract^ the Court must refuse specific performance on account of his incapacity to perform it (t). If the mistake which induced the contract was caused by the other party intentionally or unintentionally, or if the other party knew of the mistake without having caused it, different questions arise. If the mistake was caused inten- tionally by a misrepresentation made for the purpose of inducing the contract, it is a fraud, the consequences of which are treated in the next section (u) . — If the mistake was caused unintentionally, but by negligence of the other party or of his agent, or by any means for which he is responsible, the Court will refuse him specific performance of the contract, and in some cases will rescind it altogether {x) : as where leasehold property was sold under particulars of sale omitting mention of a substantial ground rent, specific performance was re- fused (y). Where a purchaser bought a building lot upon an estate according to a plan annexed to the partictilars of sale, and with the condition that no public-house should be built upon the estate ; and the plan omitted a plot reserved by the vendor for building a public-house; it was held that the {p) Howell V. George, supra; Sood V. Oglander, 34 Beav. 513 ; 34 L. J. C. 528. {q) Moriloclc t. SuUer, 10 Ves. 292. (r) Mason v. Armitage, 13 Ves. 26 ; see Twining v. Morriee, 2 Bro C. C. 326. (s) Malins v. Freeman, 2 Keen, 25; ante, p. 264. (t) See post, pp. 979, 982. (m) See post, p. 292. (x) Jessel, M. E., Jones v. Simmer, L. E. 14 C. D. 592; 49 L. J. C. 775. See TFoollam v. Hearn, 7 Yes. 211 ; Torrance v. Bolton, L. E. 8 Ch. 118; 42 L, J. C. 177. (»/) Jones V. Simmer, supra. MISTAKE. 281 vendor must either admit the restrictive condition to extend Cn. vi. to the plot reserved, or must have his bill for specific per- 1^ formance dismissed (k). So where a purchaser was misled as to the boundary of the property sold by the plan prepared by the vendor's surveyor (re). But where a person bought a house described as 39, Regency Square, Brighton, without further inquiry about the situation, he was compelled to take the house known and identified by that description, although it was situated not in the square but in the adjoin- ing street (b). And a misstatement of the length of term held by a tenant of the land sold, which did not appear to the disadvantage of the purchaser, was held no ground for refusing specific performance to the vendor (c). — Where pro- Contract perty was advertised for sale absolutely, and at the auction conditions of sale were for the first time produced and read to the efPect that it was subject to mortgages, a purchaser who bnug^- in ignorance of the conditions was held entitled to have the contract rescinded, upon the ground that he was misled into it by the mode of conducting the sale («f). And where the property was described as "inclosed by a wall" fronting a public road, and in fact the wall was not part of the property and severed it from the road, the purchaser was held entitled to have the contract rescinded (e). The mistake of one of the parties as to a fact inducing Mistake his agreement may be known to the other party, without known to his causing it or being responsible for it ; in which case the larhr*''^'^ validity of the contract will depend upon circumstances. If a person contract with another, knowing him to be under a mistake, without informing him, and it is understood on both sides that the contract is made upon the tacit basis of the mistake, it would be equivalent to a fraudulent induce- ment, and would entitle the other party to avoid the con- (z) JBaskcomh v. Beclcwith, L. E. 1 Sm. & GifE. 529. 8 Eq. 100 ; 38 L. J. C. 536. {c) Goddard v. Jeffreys, 51 L. J. C. (a) Denmj v. Sancoclc, L. E. 6 Ch. 67. 1 ; 40 L. J. C. 193. (d) Torrance v. Bolton, L. R. 8 (b) White V. Bradshaio, 16 Jurist, Ch 118; 42 L. J. C. 177. 738, cited in Benny t. Hancock, (e) Brewer v. Brown, L. E. 28 supra ; and see Stanton v. Tattersall, C. D. 309 ; 64 L. J. C. 605. 282 CAUSES VITIATING AGREEMENT. PaetI. tract (e). But if it be clearly understood that the mistaken party is acting upon his own judgment, without any common understanding with the other party, his mistake would afford no sufficient ground for avoiding the contract : as in the case above cited, where new oats were spld by sample without any other representation as to their quality, which the buyer bought in mistake for oats to serve his special purpose as a trainer of horses, nothing being said at the time about old oats ; it was held that the passive acquiescence of the seller in the mistake of the buyer did not entitle the latter to avoid the contract ; that there was no legal obligation on the seller to inform the buyer that he was under a mistake, not induced by the act of the seller ; and that there was no common understanding that the sale was for old oats. But it was said that "If the buyer had said anything which showed that he was not acting on his own inspection and judgment, but assumed as the foundation of the contract that the oats were old, the silence of the seller, as a means of misleading him, might have amounted to a fraudulent concealment, such as would have entitled the buyer to avoid the contract" (/). — In some contracts, which are therefore called contracts uberrimce fidei, it becomes the duty of the one party to inform the other of every material fact within his knowledge of which the other party is not already informed, so as to prevent any ignorance or mistake in the latter ; and the communication of all material facts is a condition of the validity of the contract. Such are contracts of insurance against risks, in which it is the duty of the insured to describe fully and correctly the risk; also partnerships; compositions with creditors ; and contracts offered by the prospectus of a company ; in which everything must be communicated which it is material for the parties to know (Ji) . Contracts iiberrimce fidei. Mistake Where there is a mistake of both parties in a fact (e) See post, p. 299. {/) Smith V. Hughes, L. R. 6 Q. B. 597 ; 40 L. J. U. B. 221 ; see Couk- bum, C. J., lb. ; andsee««te, p. 278. (A) See post, pp. 297, 338, 668 ; Fi-y, J., Davies v. Land. ^- Prov. Ins., L. R. 8 C. D. 474 ; 47 L. J. C. 514. JtlSTAKE. 283 materially inducing the agreement, the effect depends upon Ch. vi. whether the agreement is to be taken absolutely according to its terms ; or whether it is to be taken as impliedly condi- parties tional upon the supposed state of facts, and intended to take |^/^°*jj effect only upon that supposition, so as to be inoperative theagree- and Yoid with reference to the real facts and circumstances, as in the following cases : — A contract for the sale of the Contracts f. 1 . t t 1 J^ *i_ conditional cargo 01 a ship, supposed to be then on its voyage, was upo^ held to import the condition of the cargo being then in j^^j^"'*'^'^ existence, so that, the cargo being then lost, the con- tract was void («). So a time policy upon a ship made ia ignorance of the then loss of the ship is void ; but if the ship exists, there is no implied condition of its state, and the policy attaches for the full value insured (k). A policy on goods on a voyage " lost or not lost " attaches, though the goods, unknown to both parties, have arrived safely; and the premium is chargeable (/). An insurance of goods on a voyage, made in ignorance that it was illegal by reason of war having been declared at the port of sailing, was held void, and the premium paid recoverable back(/«). A voyage policy, made in ignorance that the ship had previously arrived at the port of destination, is an insurance of the unknown risk, and the premium paid is not recoverable as upon a void policy (n). Upon the same principle, where a contract was made for the supply of an article according to a sample, which contained a latent defect unknown to both parties; it was held that the contract was to be taken, as intended by the parties, according to the sample as supposed to be sound, and without regard to the defect (o). And in the case of a sale of forged documents and securities, which both parties suppose to be genuine, the sale is void and the price paid may be recovered back(p). — Upon the same Contracts conditional upon life. (i) Couturier v. Bastie, 9 Ex. 102 ; (m) Oom v. Bruce, 12 East, 225. 5 H. L. 0. 673 ; 25 L. J. Ex. 253. («) Stone v. Marine Ins. Co., L. R. [k) Barkers. Janson, L. E. 3 C. P. 1 Ex. D. 81 ; 45 L. J. Ex. 361. 303- 37 L. J. G. P. 105; post, (o) Heilbutt v. Riekson, L. R. 7 p. 286. C. P. 454 ; 41 L. J. C. P. 228. (l) Bradford v. Si/mondson, L. E. {p) See ante, p. 89. 7 Q. B. D. 456 ; 50 L. J. Q. B. 583. 284 CAUSES VITIATING AGREEMENT. Pabt I. principle a contract for the sale of a life annuity is con- ditional upon the annuitant being alive at the date of the contract ; and the purchase money paid in ignorance of his death maybe recovered back(/). A grant of an annuity made upon the basis of a statement by the grantee of the age of the nominee, if the statement is erroneous though un- intentionally so, is void and the payments on both sides may be recovered back (g) . The renewal of a policy upon the life of a person is conditional upon the then continuance of the life ; and the person having before then died, unknown to both the parties, the policy is void and the premium return- able (A) . An agreement made between the assignee of a tenant for life and the remainderman respecting the timber on the estate, which the tenant for life was entitled to cut, in ignorance of the fact that he was then dead, was held void, because intended to take effect only upon the supposition of his being alive (/) . Where rent was paid and received for the occupation of land under a lease for lives in ignorance of the death of the persons upon whose lives the lease depended, it was held that no implication of a new tenancy could arise Mistake as from Such receipt of rent (/c) . — A common mistake of both parties as to the title of property sold may be asserted in avoidance of a contract of sale, notwithstanding a condition in the contract precluding any investigation of the title ; as where in fact the property belonged to the purchaser and not to the seller as supposed (/). And a common mistake of this kind may be available for rescinding the • conveyance after completion of the contract, though in general after completion the only remedy of a purchaser in respect of title is upon the covenants for title, if any, given by the vendor {m). if) Strickland v. Turner, 7 Ex. [1) Jones v. CHfford, L. R. 3 C. D. 208. 779; 45 L. J. C. 815; Cooper v. (y) Att.-Gen. v. Bay, L. R. 9 Ch. Fhibbs, L. R. 2 H. L. U9. 397 ; 43 L. J. C. 478. (m) Btngham v. Bingham, 1 Ves. (A) Pritchard v. Merchants' Life sen. 126; Cripps v. Beadc. 6 T R Ass., 3 C. B. N. S. 622; 27 L. J. 606; see Clare v. Lamh, L. R 10 C. P. 169. C. P. 334; 44 L. J. C. P. 177; (i) Cochrane v. Willis, L. R. 1 Ch. Besleij v. Bcslei/, L. R. 9 0. D. 103 ; 58 ; 35 L. J. C. 36. Clayton v. Leech, L. R. 41 C. D. 103 '; (Ic) Doe V. Crago, 6 C. B. 90. and see ante, p, 88. MISTAKE. 285 A contract for the sale of a tuildiDg lease, made in ignorance Ch. vi. of both parties that it was subject to restrictive covenants '-^- contained in a former conveyance, was held to he void (w). — A contract of sale of an estate may be void by reason of a Mistake ia mistake of both parties as to the acreage, to the extent of ment. rendering the contract in efEect substantially different to that intended; as where an estate was sold as containing 21,750, which in fact, unknown to the parties, contained only 11,814 acres (o). A slight mistake in the quantity may be made a matter of compensation at a rateable value and upon equit- able terms {p). And a sale of land described as containing "by estimation" so many acres "more or less," or with similar qualifying words, imposes on the purchaser the risk of a slight deviation from the quantity named, and pre- cludes him to that extent from objecting that he was mis- taken in the quantity (g) . Where an agreement was made for a lease of minerals described as included within a fault "supposed to run in the direction shown upon the plan," and supposed to include a stated number of acres " or there- abouts " ; and in working the minerals a fault was discovered running in a different direction to that supposed and includ- ing a much greater area ; it was held that the agreement could not be enforced according to that state of facts (r) . — Mistake in Where an agreement was made for the sale of a manor with all the lord's rights, in ignorance of both parties that the manor included valuable wastes and other rights ; it was held that the purchaser could not have specific performance, except with exclusion of those rights (s). So an agreement for the division of an intestate's estate which was made under a material mistake as to the value was set aside {t) ; and an («) mis v. Bogers, L. K. 29 C. D. (?) Winch v. Winchester, 1 V. & B. 661 ; see Allen v. Richardson, L. B. 376 ; Cranworth, L. C, Bmis v. 13 C. D. 624 ; 49 L. J. C. 137. Shepherd, L. E. 1 Ch. 416. (o) Durham v. Legard, 34 Beav. (r) Davis v. Shepherd, L. E. 1 Ch. 611 ; 34 L. J. C. 589 ; see Aberaman 410 ; 35 L. J. C. 881. Ironworks v. Wiokens, L. E. 4 Ch. (s) Baxendale v. Scale, 19 Beav. 101 ; TurquandY. Shades, 37 L. J. C. 601 ; 24 L. J. C. 385. 830. {t) Cocking v. Pratt, 1 Ves. sen. {p) Sill V. Buckley, 17 Ves. 394; 400. see post, p. 988. 286 CAUSES VITIATING AGREEMENT. Contracts indepen- dent of mistake. Paet I. agreement between a creditor and the trustee of a bankrupt in settlement of the debt, both parties being in ignorance of concealed property of the bankrupt (m). So an agreement to buy shares in a company, in ignorance that a petition for winding up the company had been presented, was held void {x) ; and an agreement to take shares in a company issued upon the basis of an amalgamation with another com- pany, which was then supposed to be valid but afterwards set aside as ultra vires {y). On the other hand, though the parties may be under a mistake, their contract may be made unconditional, and independent of the real state of facts : as where a ship was sold and assigned by a deed in which the seller covenanted that he then had power to sell ; and it appeared that the ship had become a vrreok at the time of the sale, of which both parties were ignorant ; it was held that the covenant was absolute, and that if the ship had ceased to exist at the time of the sale there was a breach of the covenant ; but if it still existed as a ship, however damaged, there was no breach, for the covenant imported no warranty as to the condition of the ship [z) . Where the residue of a lease was sold and conveyed, which by a mistake in the date of commencement was twelve years longer than supposed at the time of the sale ; the Court refused to re-open the transaction, the intention being to convey the entire lease (a). So where an underlease was granted, under a mistake, for a longer term than the lessee possessed, it was held that the underlessee, who might have inquired into the title, had no claim to compensation or damages (J) . — The sale of a specific chattel, if it be accurately Sale of specific chattel. [u) Ex p. Jarvis, L. E. 10 C. D. 179 ; 48 L. J. B. 45. [x) Emmerson^ s case, L. R. 1 Ch. 433 ; 36 L. J. C. 177. See Rudge v. Boioman, L. R. 3 Q. B. 689; 37 L. J. Q. B. 193 ; Me Onward Build- ing Soc, (1891) 2 Q. B. 463 ; 60 L. J. Q. B. 752. [y] Bank of Sindostan v Alison, L. R. 6 C. P. 222 ; 40 L. J. C. P. 117 ; ll'i/me's case, L. R. 8 Ch. 1002. Sec He Anchor Ins. Nnc- Era Ins. Soc, 1 T>. J. & S. 29 ; 32 L. J. C. 206. (c) Barr v. Gibson, 3 M. & "W. 390 ; see Barker v. Janson, L. R. 3 C. P. 303 ; 37 L. J. C. P. 105 : ante, p. 283. (a) Okill V. JThitiaker, 1 D. & Sm. 83 ; 2 Phill. 388. (b) Besley v. Beslcy, L R. 9 C. D. 103 ; Clayton v. Leech, L. R. 41 0. D. 103 ; ante, p. 279. MISTAKE. 287 identified in substance, is absolute, and independent of any Ch. vi. mistake or erroneous supposition respecting the qualities and accidents of the article (c). " For example where a horse is bought under a belief that it is sound, though it may be clear that both vendor and purchaser thought they were deal- ing about a sound horse and were in error, yet the purchaser must pay the whole price, unless there was a warranty ; and even if there was a warranty, he cannot return the horse and claim back the price, unless there was a condition to that effect in the contract" (rf). And where new shares were ofPered by a company and accepted, under the mistaken supposition that the company had obtained a contract requir- ing an extension of their business ; it was held that the con- tract to take the shares was absolute, for that the mistake did not affect the substance or validity of the shares (e) . The parties are understood to contract upon the common Mistake in basis of the general law, equally known to both, so that a law. mistake of law can never be alleged by one party in avoid- ance of his agreement, unless the other party was implicated in causing the mistake (/). Thus, where a lessor contracted to grant a lease for seven or fourteen years, which by a general rule of legal construction gives the option to the lessee, he could not allege in answer to a claim for specific performance that he understood and intended the option to be with the lessor ; the mistake being not as to the terms, but as to the legal effect, which he was bound to know (g). Where tenant for life of a copyhold estate contracted for the purchase of the reversion in fee, with the object of destroying an intervening contingent remainder ; it was held that his mistake in supposing that the law of freehold tenure applied to copyholds was no ground for relief against the purchase (h) . (c) Knight-Bruce, V.-C, Okill v. (/) See post, p. 292. Wkittaker, 1 D. & Sm. 86. {ji) Powell r. Smith, L. E. 14 Eq. {d) Per cur. Kennedy v. Panama 86 ; 41 L. J. C. 734 ; Grant, J[. R. Mail Co., L. R. 2 Q. B. 587; 36 Price y. Dyer, \1Ye&.Z6Z; see Powell L. J. Q. B. 263, citing Streets. Blay, v. Tranter, 3 H. & C. 458 ; 34 L. J. see a)tie, p. 91, post, p. 335. Ex. 60 ; nntc, p. 188. [e) Kennedy v. Panama, ^c., Mail (/() MildmayY. Siinfferford,2'Vera. Co., supra. 243. 288 CAUSES VITIATING AGEEBMENT. Part I. So a person who has become a shareholder in a company in respect of shares illegally issued at a discount, though he could not have been compelled to accept them, cannot allege his ignorance of the law in relief of the liability to pay the full amount of the shares (/.). — Upon the same principle a person who has paid money with a full knowledge of the facts, but under a mistake of law as to his liability to pay it, or as to the legal validity of the consideration for which he pays it, has in general no claim to recover it back either at law or in equity (^). — A mistake of both parties as to the legal meaning or construction of the terms of a written contract is equivalent to a mistake in the expressions used, and may be alleged in answer to a claim upon the contract as it stands, or for the purpose of rectifying it ; the parties cannot be held to a contract the effect of which was not intended by either of them(««). But where a deed of grant of anannmty was drawn in absolute terms, excluding a clause of redemp- tion under the mistaken suppositii)n that the legal effect of inserting it would be to render the deed void ; it was held that the grantor could not allege the mistake against an assignee of the annuity who took it without notice of the mistake («). Mistake as Private rights of property, though they are the result of righS™ ^ rules of law, or depend upon rules of law applied to the con- struction of legal instruments, are generally to be considered as matters of fact ; and if parties contract under a common mistake of their relative and respective rights, the contract is liable to be set aside as inapplicable to the state of rights really existing. Accordingly it is said that " in the maxim ignorantia juris hand cxcusat, the word y«s is used in the sense of denoting general law, the ordinary law of the coimtry ; but when the word -jm' is used in the sense of denoting a (k) He Eailwaii Time Tables Co., 2 Eq. 750; 35 L. J. C. 769- Hanlei- L. B. 42 C. D. 98 ; 58 L. J. C. 504 ; JieU v. Londonderry, L. E 4 C D Re Aimada % TirUo Co., L. R. 38 693. C. D. 415 ; 57 L. J. C. 706. („,) See ante, p. 268 (0 See««/f, p. 85; James, V.-C, {») Iniliam v. C/ii'ld, 1 Bro C Rogers v. Iiigkam, L. E. 3 C. D. C. 92. , ■ . 355 ; and see RnshdciU v. Ford, L. R. MISTAKE. 289 private right, tliat maxim has no application" (o). — Thus Ch. vi. "where a deed was executed for the purpose of determining the interests under a will, and it appeared upon the face of the deed that the parties were mistaken in their rights, the Court refused to enforce it{p). Where an agreement was made between the tenant for life and the portioners of a settled estate under the mutual mistake that upon the con- struction of the settlement the portions were a present charge, the Court having decided that they were not chargeable until the death of the tenant for life set aside the agreement (q) . And a re-settlement of family estates by the father tenant for life and the son tenant in tail, made upon the supposition that the father had a power of charging the estates with portions, which he purported to release, was set aside as founded upon mistake (r). So a mortgage account, which had been settled with compound interest and half-yearly rests under the mutual mistake that such was the legal effect of the mortgage deed, was re-opened by the Court and settled at simple interest (s). But if the parties enter into an agreement for the purpose Settling of settling their rights with fuU knowledge of the doubts rights. arising upon them, the Court will enforce such agreement : " Parties may be erroneously advised as to the law, but they may be told on what circumstances the question of law depends, and in what mode it may be tried, and they may determine (whether the advice they receive be well or ill founded) whether they will give up the question in favour of the party with whom it arises" (^). — Upon this principle Family " where family agreements have been fairly entered into meats. without concealment or imposition on either side, with no («) L. Westbtiry, Cooper v. Phibbs, [q) Lawton v. Campion, 18 Beav. L. K. 2 H. L. 170 ; Earl Beauchamp 87 ; 23 L. J. 0. 505. V. Winn, L. E. 6 H. L. 234; per cur. ir) Fane v. Fane, L. R. 20 Eq. Daniell v. Sinclair, L. R. 6 Ap. Ca. 698. 190. And. Bee post, p. 293. (s) Daniell v. Sinclair, L. R. 6 Ap. (p) Dunnage v. White, 1 Swanst. Ca. 181 ; 50 L. J. P. C. 50. 137 it) TumeTjIj. 3., Stone-v. Godfret/, 5 D. M. & a. 76 ; 23 L. J. C. 774. L. U 290 CAUSES VITIATING AGREEMENT. ^^"^ ^- suppression of what is true, or suggestion of what is false, then, although the parties may have greatly misunderstood their situation and mistaken their rights, a Court of Equity will not disturb the quiet which is the consequence of that agreement" (m). (u) Ulionjlj. C, Gordon V. Gordon, 6tli ed. ; Gibbons v. Caunt, 4 Ves. 3 Swanst. 463 ; see Cann v. Cann, 1 840 ; Stockley v. Stoekley, 1 V. & B. P. Wnis. 723 ; Stapilton v. Stapilion, 31 ; Clifton v. Coclcbwn, 3 M. & 1 Atk. 2 ; 2 White & T. L. C. 920, K. 99. 291 Sect. II. FRAUD AND MISREPRESENTATION. § 1. Contracts induced by Fraud or Misrepresentation. PAOE Misrepresentation — fraudulent intention 292 Misrepresentation of fact — of law — of intention — of motive — of opinion — prospectus of company 292 Concealment — non-disclosure — selUng chattel with latent defect — non-disclosure by vendor of real estate — by pur- chaser 299 Employment by vendor of bidder at auction — Sale of Land by Auction Act — purchaser deterring bidders 306 Misrepresentation with knowledge of fact — in ignorance of fact — in belief of its truth — in forgetfulness of fact — change of circumstances affecting truth of representation. 308 Materiality of representation in inducing contract — partial misrepresentation 313 Misrepresentation made to persons having knowledge — re- liance upon representation — constructive knowledge .... 315 Contracts obtained by fraud of agent — limits of autho- rity — directors and agents of company— fraud of third party 318 Election to avoid contract induced by fraud — modes of ^ election — election to affirm contract — delay in election . . 320 Restitution of rights upon avoidance of contract — return of goods sold — possession of land — action for fraud .... 324 Rights acquired by third parties under voidable contract — goods obtained by false pretences — restitution of pro- perty 326 An agreement, apparently complete and sufficient to create CIh. vi. a contract, may be vitiated by fraud, entitling a party to '■ — - avoid its effect by showing that he was induced to agree by the fraud of the other party. The questions here to be considered are : what constitutes such fraud as entitles the party to avoid his agreement ; and under what circumstances, and with what consequences, such avoidance takes place (a). — {a) This section is confined to the made in fraud of a third party, a effects of fraud and misrepresenta- stranger to the agreement, is affected tion operating between the two par- by the fraud in a different manner ; ties to an agreement. An agreement the agreement is then made for a u2 2i)2 CAUSES VITIATING AGREEMENT. Misrepre- sentation PaetI. The defect in the agreement consists in the one party inducing the other to agree by some misrepresentation or untrue statement intentionally made for that purpose. It necessarily involves a mistake in the party so induced ; which, as affecting him only, woTold not vitiate his agreement ; but there is the additional circumstance that the other party causes the mistake for the purpose of inducing the agree- ment, and the party causing the mistake is therefore precluded from holding the other bound (b) . The misrepresentation may be made by express words or by conduct ; the question in each case being, what was the meaning intended to be Fraudulent conveyed (c) . — A misrepresentation thus made for the purpose of inducing an agreement is described in law as "fraudulent" ; but in actions or proceedings taken to avoid an agreement so obtained it is sufficient to allege the facts and circumstances which render the agreement voidable in law, without alleging or proving as a fact a fraudulent motive or intention beyond that of obtaining the agreement. " If the facts create a fraud it is unnecessary to allege the fraudulent intention ; nor will the word 'fraud' create fraud, if the facts do not establish it" ((i). The misrepresentation maybe made with the motive of benefiting the party by his acting upon it, and yet be not the less fraudulent in its legal effect (e). Misrepre- sentation of fact. Misrepre- sentation of law. The misrepresentation by which the agreement is effected ■ must be of a matter of fact ; a misrepresentation of a matter of general law, or a promise to do something at a future time, or a statement of motive or of opinion, is not in general a sufficient ground to vitiate an agreement. — The law in general fraudulent and, therefore, illegal purpose, and is absolutely void by reason of the illegality of the trans- action. See post, p. 667. As to the contract or debt implied in law from the obtaining money by fraud, see ante, p. 71. (4) See ante, p. 277. («) See ante, p. 2 ; per em: The Queen v. Cooper, L. R. 2 Q, B D. 510; 46 L. J. M. 219. {d) Eomilly, M. K., Shipy. Cross- kill, L. R. 10 Eq. 85 ; 39 L. J. C. 553 ; Buller, J., Pasleij v. Freeman, 3 T. R. 60 ; Parke, B., Thorn v. Big- land. S Ex. 725 ; per cur. Swinfen v. Chelmsford, 5 H. & N. 890 ; 29 L. J. Ex. 382 ; as to an action for fraud, Bee post, pp. 310, 326. {e) RomiUy, M. 'R.,Fee/c v. Gurneij, L. R. 13 Eq. 113 ; 43 L. J. 0. 19 ; L. Blackburn, Smith y. Chadwick, L. R. 9 Ap. Ca. 201 : 53 L. J. C. 879. CONTRACTS INDUCED BY FRAUD. 203 is equally witMn the knowledge of all ; and therefore a re- Ch. vi. Sect. II. presentation or statement of a mere matter of law made to a — '- person who has equal means of knowing what the law is, though erroneous, is not a sufficient ground for avoiding an agreement. Thus where directors borrowed money upon the bond of the company, which they represented to be valid, but which was ultra vires of the company and therefore void, they were held not responsible for the representation, because it was a matter of law, and made to a person who was equally informed of the facts, and to whom they held no fiduciary position (/). And where an agent in a recognized legal position as the director of a company represents that he has authority by virtue of his office to bind the company, which is a matter of general law, the party to whom such represen- tation is made must accept it at his own risk (g) . But a representation by directors of their powers under a private Act of Parliament is a representation of fact, as to the Act and its contents, for which they are held responsible (A). So where an agent represents himself to be authorized under a power of attorney which is shown to the other party, the extent of his authority depends upon the construction of the power, and not upon his assertion respecting it(»). But where a person in a position of trust or authority or duty relative to another exerts an undue influence to impose upon him an erroneous view of the law, it may be a ground in eqiiity, equivalent to fraud, for avoiding the transaction (/.•) . — Matters of private right, though depending upon rules of law Private and legal rules of construction, are in general to be considered "^ as matters of fact, in reference to the doctrines of mistake and fraud ; and, therefore, the misrepresentation of the legal effect of a deed or written agreement, made for the purpose of inducing another person to sign it, would be sufficient (/) Mashdall v. Ford, L. E. 2 Eq. (A) West London Bank v. Kitson, 760; 35 L. J. C. 769. ?,ee Firbank L. B. 13 Q. B. D. 360; 53 L. J. V. Svmphreys, L. R. 18 Q. B. D. 54 ; Q. B. 346 ; see Derry t. Peek, L. K. 56 L. J. Q. B. 57. 14 Ap. Ca. 337 ; 68 L. J. C. 864. (o) Beattie v. Eiury, L. E. 7 Ch. (i) Mellish, L. 3.,BeattieY.Ebury, 777; lb. 7 H. L. 102; 41 L. J. C. L. E. 7 Ch. 800. 804. W See post, p. 357. tion. 294 CAUSES VITIATING AGKEEMENT. Pabt I. ground for avoiding the agreement (/). "A statement of fact which involves, as most facts do, a conclusion of law, is still a statement of fact and not a statement of law"; such are state- ments concerning personal status, the possession of property and other matters of private right (m). Misrepre- A representation of intention as to some future act which of inten- is not performed, though it may have induced the agreement, is not in general a sufficient ground for avoiding it; for a repre- sentation that something will be done in the future is equiva- lent to a promise, and the promisee may take the security of a valid contract for the performance. Therefore " it is always necessary to distinguish, when an alleged ground of false re- presentation is set up, between a representation of an existing fact which is untrue, and a promise to do something in future, and to consider what the bargain is" (ii). But a representa- tion may be made of an intention of a party at the time of contracting as of an existing matter of fact, and as a material inducement to the other party to make the contract ; and if such representation is false, it may be sufficient ground for avoiding the contract (o). Where a borrowing company induced a loan by a prospectus stating the object of the loan to be for improving the buildings and extending the business of the company, whereas it was in fact intended to apply the money to the discharge of previous liabilities ; the company having failed, the directors who issued the prospectus were held liable for the misrepresentation as fraudulent (p). So a lender who represented that he "was prepared to pay" a certain sum of money to the borrower on the latter signiag a promissory note, whereas he was not prepared and did not in fact intend to pay it, was held guilty of obtaining the note by false pretences (?).— Upon this principle a person offer- ing to buy goods must be taken impliedly to represent that {I) See ante, p. 288 ; SirschJieM v. L. E, 1 C. D. 552 ; 45 L. J. B. 70. London ^- Brighton Ri/., L. R. 2 See ante p 3 ^- ^- ^;./'e,® ^ ^- ?-,.^- ^^' W ^ov7e^;-L.3.,BdgmgtonY.Fitz- ante, p. 264 ; Stanletj v. Jiobuuoii, 1 maiirice, L. R. 29 C D 483 • 55 L T Kuas. &M. 527. C. 650. ■ ^- 1^^ , ao u. j. («) Jesse\, M n Eagles^eld v. (p) Hdgington y. Fltzn,aunce,snpra. Londonderry, J. U 4: C. D. ,02. (5) The Queen t. Gordon, L. R. 23 («) Melhsh, L. J., Lx p. BurreU, Q. B. D. 354 : 58 L J M 117 CONTRACTS INDUCED BY FRAUD. 295 he intends to pay for them, and if he buys with the precon- Ch. vi. ceived intention of fraudulently obtaining the goods by means '- — - of the sale without paying for them, the seller may avoid the sale and recover back the goods from the buyer, or from any person to whom he has transferred them with notice of the sale {)') . Where a trader bought goods at an auction without disclosing the fact that bankruptcy proceedings were then pending against him ; it was held that the mere omission of the buyer to disclose his circumstances was not sufficient evidence of a fraudulent intention not to pay for the goods ; and that consequently the property vested in the trustee in bankruptcy ; but it was said that the buyer " must be taken to have made an implied representation that he intended to pay for them, and if it were clearly made out that at that time he did not intend to pay for them, a case of fraudulent misrepresentation would be shown "(s). — Upon the same Effect on principle where a vendor or lessor induces a sale or lease by perform- representation of his intention to make improvements, such as '^^'^'^' roads and buildings, affecting the property and its value," the Court wUl not give him specific performance unless he makes good his intention. And plans produced at the time of con- tracting showing the improvements operate as representations of the intention (t). On the other hand the purchaser or lessee may claim specific performance with compensation for the intended improvements (m). A misrepresentation of the motive or object in making a Misre^re- contract affords no ground for avoiding it; the motive in of'motiTre. making a contract being in general immaterial («) . Thus a false statement by a purchaser that an intended partner of his would not consent to give a larger price, was held not to affect the sale, though the buyer afterwards charged the pro- ()•) Bristol V. Wilsmore, 1 B. & 0. 45 L. J. B. 17. 514; Ferguson v. Carrington, 9 B. & (<) Beaumont^. Duhes, 1 Jac. 422; C. 59 ; Load y. Green, 15 M. & W. Myers v. Watson, 1 Sim. N. S. 523 ; 216 ; White v. Garden, 10 C. B. 919; see Lamare v. Dixon, L. K. 6 H. L. 20 L. J. C. P. 166 ; Clouffh v. london 414 ; 43 L. J. C. 203. ^ N. W. My., L. E. 7 Ex. 26 ; 41 L. (m) Beaeoch v. Benson, 1 1 Beav. 355 ; J. Ex. 17. aeepost, p. 981. (s) Mellish, L. J., Sxp. Whiltaker, [x) Williams v. Carwardine, 4 E. & L. B.. 10 Ch. 446 ; 44 L. J. B. 11 ; Ad. 619 ; ante, p. 3. see Ex p. Brett, L. R. 1 0. D. 151 ; 296 CAUSES VITIATING AGREEMENT. Paut I. Represen- tation of opinion. Eepresen- tation of value. perty to his partner at a larger price ; the Court describing it as only " a falsely alleged reason for the limited amount of his own offer " (y). So where a lessee contracting for a lease stated that he intended to use the premises for a certain lawful purpose, and afterwards used them for a different and unlaw- ful purpose, the lessor was not entitled to avoid the lease and recover the possession (z). Matters of opinion, stated merely as such, though erroneous, afford no ground for avoiding an agreement : as in the case of an insurance of a ship made upon a letter from the master expressing his opinion of the safety of a port (a). So the statement in the prospectus of a railway company, that there was no probability of any rival line being carried out, was held to be a mere conclusion of general opinion, and not such a misrepresentation of fact as would avoid a contract to take shares made upon the faith of it {b) . — Upon this principle a seller incurs no liability by a bare assertion of the value of property offered for sale ; for it is said to be the buyer's folly to give credit to such assertion (c) . And where it was stated in particulars of sale that the property was " of estimated annual value of 400/.," and such an estimate was in fact made, though evidence was given of the value being only 200/., it was held that there was no such misstatement as would give a claim for compensation (d). But a false statement by the vendor of the price that he gave for the property would be misrepresentation of a fact, giving ground for avoiding the purchase (e) ; and so a false statement of the rent at which the property had been let (/). On the other hand, a buyer is not liable for misrepresenting the seller's chance of sale, or («/) Vernon v. Kei/s, 12 East, 632 ; 4 Taunt. 488. (z) Feret v. Sill, 15 C. B. 267 ; 23 L. J. C. P. 185. See Bonnett v. Sadler, 14 Ves. 526. (a) Anderson v. Padfie Ins. Co., L. R. 7 0. P. 65. (4) New Brunsuicli Ri/. Co. v. Conyleari; 9 H. L. C. 711 ; 31 L. J. C 297. {e) Harvey v. Young, Tely. 21. {d) Hiirlbutt and Chaytor'' s Contract, 57 L. J. C. 421. See per cur. JoMe T. JBalier, L. R. 11 Q. B. D. 273 : 52 L. J. Q. B. 609. (e) Kent t. Freehold Land Co., L. E. 4 Eq. 588 ; per cur. Lindsay Fetroleum Co. v. Su>d, L. E. 5 P. C. 243. See Eimher v. Barber, L. E. 8 Ch. 56. (/) DimmocJc v. Hallett, L. R. 2 Ch. 21 ; 36 L. J. C. 146. CONTKACTS INDUCED BY FEAUD. 297 the prolDability of his getting a better price for his commodity Ch. vi. than that offered (g). Representations in vague and general terms in commen- Expres- dation of the subject of agreement, not importing definite general statements of fact, are not sufficient ground for avoiding dation. the agreement ; nor in general for refusing specific per- formance : as the representation by a vendor that land was " uncommonly rich water meadow " {h) ; or that it was " fertile and improvable " («') ; or upon the sale of an advow- son, that "a voidance was liiely to occur soon"(A-). "A vague statement of the above kind ought to put a purchaser upon inquiry ; and if he chooses to buy on the faith of such a statement without inquiry, he has no ground of com- plaint "(/). — But a representation upon a sale of growing timber that the trees were of an average size approaching fifty feet of timber, it appearing in fact that they averaged less than thirty-five, was held to be a sufficiently definite misrepresentation of fact to disentitle the vendor to specific performance (m) . And a description of property as " well supplied with water," where the only supply was from water- works upon payment of a rate, was held to be a representa- tion of fact and not of opinion, and sufficient to avoid the sale (h). The prospectus of a company generally contains represen- Prospectus tations made on behalf of the company for the inducement of paay™" the public to take shares ; and if it misrepresents any material fact, or conceals any fact material to be known, there is suffi- cient groimd upon which a shareholder may avoid his contract to take shares or may apply to have the list of shareholders rectified by the removal of his name (o). " It is essential that (ff) Fer eur. Vernon v. Keys, 12 (m) Leyland v. Illingioorth, 2 D. F. East, 638, cited ante, p. 296. & J. 248 ; 29 L. J. C. 611. (A) Scott T. Sanson, 1 Sim. 13. (o) Turner, L. J., Smith's ease, [i) Diimnock v. Sallett, supra. L. R. 2 Ch. 609 ; 36 L. J. C. 619 ; {k) Trower t. Newcombe, 3 Mer. S. C, L. B. 4 H. L. 64; Central Ry. 704. of Venezuela v. Kisch, L. R. 2 H. L. (?) Turner, L. J., Simmoek v. 99 ; 36 L. J. C. 849 ; Peek v. Gurney Sallett, L. R. 2 Ch. 27 ; Trower v. L. R. 6 H. L. 377. See The Com- Newcombe, supra. panies Act, 1867, s. 38, post, p. 524; (m) Lord Brooke y. Bounthxoaite, 5 and The Liability of Directors Act Hare, 298. 1890, post, p. 310. ' 298 CAUSES VITIATING AGREEMENT. Past I. there should be uberrima fides, a most complete disclosure of the facts on the part of those who induce the public to invest their money " {p). But a merely exaggerated statement of the prospects and advantages of the company, resting in opinion only and not misrepresenting any precise or definite fact, wiU not entitle a shareholder to avoid his contract (?). The construction of a prospectus is for the Court and not for the jury ; and a shareholder cannot claim relief for his own mistakes in reading the meaning (r) . A party complaining of fraud must have taken the words in a sense they are capable of bearing, and which is the meaning put upon them by the Court (s). — Upon these principles a prospectus stating that more than half the proposed capital had been subscribed, when in fact it had been merely subscribed by an agent under an arrangement for allotment to future applicants without any liability on his part, was held to be materially fraudulent {f) ; so a prospectus stating, contrary to the fact, that certain per- sons named were directors (u) ; or that the directors had taken a large amount of shares («') ; but the omission in a prospectus to state the fact that the directors had taken a large amount of shares was held to be immaterial (*) . A prospectus of a company for constructing a foreign railway was held to be fraudulent in omitting to state that the concession was in fact to be purchased for a large sum, and in stating that they had made a contract for the required works " at a price consider- ably within the available capital " which in fact exhausted the capital (y). So a statement that an agreement had been (p) "Wood, V.-C, Soss T. Estates (t) Soss v. Estates Investment Co Investment Co., L. R. 3 Eq. 136 ; 36 L. E. 3 Ch. 682 ; 37 L. J. C. 873 ; L. J. C. 56; Chelmsford, L. C, see ^raison v. &«itt, L. R. 41 C. D. Central Ei/. of Fenezuela v. Kisch, 348. L. E. 2 H. L. 1 13 ; 36 L. J. 0. 852. («) Be lletrop. Coal Ass., L. B. 59 {q) Turner, L. J., Kisch v. Central L. J. C. 281 ; post, p. 312. Ey. of Venezuela, 34 L. J. C. 552; {i>) Kent y. Freehold Land Co., Jj.'R. Denton v. Mncneil, L. R. 2 Eq. 355 ; 4 Eq. 688 ; Henderson v. Zacon, L. R. Eellairs v. Tucker, L. R. 13 Q. B. D. 5 Eq. 249 ; see Moore ^- Ee la Torre's 662. case, L. R. IS Eq. 661 ; 43 L. J. C. (r) Moore y. Explosives Co., i^lj. J. 751. Q- B. 235. (x) Fuhford v. Eiehards, 17 Beav. (s) Fer cur. Smith v. Chadwiek, 87 ; 23 L. J. C 559 L. R. 20 C. D. 73 ; 51 L. J. C. 697. (y) Central Sailu-ay of Venezuela y. Kiseh, L. R. 2 H. L. 99. CONTRACTS INDUCED BY FRAUD. 299 made to sell mines to tlie company at a certain price, whereas Ch. vi. the agreement in fact was for a much larger price (s) ; a state- ment that a certain sum was paid to a vendor as the price of property sold to the company, whereas a large part of the sum was promotion money paid to promoters who were not vendors (a) ; and a prospectus representing that a business about to be purchased by the company was in a flourishing condition, whereas in fact it was insolvent and worthless {b). The active concealment of a material fact has the same Conoeai- effect as an express misrepresentation in avoiding an agree- material ment induced by it : as where a person sold a vessel with all faults, and before the sale had placed her afloat in a dock for the purpose of preventing an examination of the bottom, which he knew to be unsound, the sale was held to be void- able (c) ; and where a person in order to sell a log of maho- gany turned it so as to conceal a hole in the underneath side (d) . The non-disclosure of a material fact of which the other Non-dis- party is known to be ignorant may, under the circumstances, material of the case, be equivalent to an active concealment ; for it may have the effect of impliedly representing that the fact does not exist, or of rendering the facts disclosed absolutely false (c). The general principle has been thus stated: " Good faith forbids either party, by concealing what he privately knows, to draw the other party into a bargain from his igno- rance 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. This definition of conceal- (z) Langham v. East Wheal Mining (c) Schneider v. Heath, 3 Camp. Co., 37 L. J. C. 253. 506. (a) Kent v. Freehold Land Co., L. [d) Xldell v. Atherton, 7 H. & N. E. 4 Eq. 688 ; Bagnall v. Carlton, 172 ; 30 L. J. Ex. 337. L. R. 6 C. D. 371 ; 47 L. J. C. 30; (e) Chelmsford, L. C, Peek v. Capel V.Sims Co., 57 L. J. C. 713. Gurney, L. R. 6 H. L. 391; 43 See Arkwright Y. Newbold, L. R. 17 L. J. C. 19; Blackburn, J., Fhillips C. D. 301 ; 50 L. J. C. 372. v. Foxall, L. R. 7 Q. B. 679 ; 41 L. J. (J) Oakes v. Turqtuind, L. R. 2 H. Q. B. 293 ; Barwiek v. English Joint L. 325 ; 36 L. J. C. 949 ; see Feek v. Stock Bank, L. R. 2 Ex. 259 ; 36 Gurney, L. R. 6 H. L. 377 ; 43 L. J. L. J. Ex. 174 ; James, L. J., Ark- C. 19 ; Smith's case, L. R. 4 H. L. wright v. Kewbold, L. E. 17 C. D. 64. 317; SOL. J. C. 372. 300 CAUSES VITIATING AGREEMENT. 'P^ti. ment restrained to the efHoient 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 con- cealed" (/). — Mere non-disclosure, apart from circimistances importing a duty of informing the other party or rendering the fact material for him to know, is not suflBcient ground for avoiding a contract. Where a governess had been en- gaged under a written agreement in which she was described as " spinster," it was held that the mere non-disclosure of the fact that she had been married and divorced, was not mate- rial (g). So with a promise to marry, it was held to be no ground for avoiding the contract that it had not been dis- closed that the promisee was at the time of the promise under a pre-contract to marry another person {h) ; or that the pro- misee had at one time been insane and confined in a lunatic asylum («'). But a promise to marry a woman is impliedly conditional upon the fact of her being chaste, and therefore the non-disclosure of immoral conduct would render the contract voidable (Jc). In contracts of insurance generally, it is a duty of the insured to disclose all facts material to the risk insured ; and non-disclosure, without further evidence of fraudulent intention vitiates the contract (l). SeiUng A person knowingly selling a chattel with a material ^th latent intent defect, without disclosing it to the buyer, entitles the defect. tuyer to avoid the sale ; though upon the sale of a specific chattel there is in general no implied warranty against latent "^withaii *^®^^°*^ ('")• ^^® seller may expressly stipulate that he sells faults." "with all faults;" it is then immaterial what faults exist, even to the knowledge of the seller, unless he fraudulently conceals the faults (w). Thus the sale of a horse "with all (/) Fer cm: Carter v. Boehm, 3 (k) Cookbum, C. J., Beechey t. Burr. 1910 ; Abinger, C. B., COT-»/boi! Srown, supra; Young y Murahu 3 V. Fmvlce, 6 M. & W. 380 ; Knight- Bing. N. C. 54. Bruce, V.-C, Nelthorpe v. Solgale, 1 [1] See ante, p. 282 • post p 338 Coll. C. C. 221. (,„) Kenyon, C. J., MeUish v. Mot- (g) Fletcher Y. lurll, 42 L. J. Q. B. teaux, Peake, 115 ; per cur. Parkinson 55- ^ V. Lee, 2 East, 324 ; Bmmerton v. (A) Beecheij v. Brown, E. B. & E. Matthews, 7 H. & N" 584 ■ 31 L J 976 ; 29 L. J. Q. B. 105. Ex. 139 ; see a.s to warranties, post, (t) Baker v. Cartwright, 10 C. B. p. 331 », pusi, N. S. 124 ; 30 L. J. C. P. 364. («) Baglehole v. TValters, 3 Gamp. CONTRACTS INDUCED BY FRAUD. 301 faults " is Talid, thoua-li latent defects are known to the Ch. vi. . . Sect. II. seller (o). And animals may be sold in a market "with all '■ — - faults," though known to the seller to he affected with a contagious disease, and though sending such animals to market is prohibited by statute under a penalty; any repre- sentation of soundness that might be implied from such conduct being excluded by the express terms of sale {p). But the chattel must answer to the description by which it is sold ; as the sale of a vessel described as " copperfastened," to be taken "with all faults, without allowance for any defects whatsoever," which was construed to mean only such defects as were consistent with the description, and not to exclude a misdescription in the vessel not being " copperfastened "(g) . Where a vessel was sold under the description of "teak built, A 1, etc." to be taken "with all faults and without any allowance for any defect or error," the additional stipulation against "error" was held to extend to errors of description, and the seller was not responsible for the ship not being as described (r) . — The sale of a chattel with a patent defect, Patent where the buyer has the opportunity of inspecting it and relies upon his own judgment, is valid, and the passive acquiescence of the seller in the erroneous judgment or self- deception of the buyer does not entitle the latter to avoid the sale (s) . Even an express warranty does not in general include defects apparent to the buyer at the time of the sale (^). — But if the seller knows the buyer to be acting Mistake of under a mistake concerning the subject of sale, and does not kliomi to undeceive him, the silence of the seller, as a means of mis- ^®^®'^- leading him, may amount to a fraudulent concealment and entitle the buyer to avoid the sale(t«). Where a person 154 ; Schneider v. Seath, 3 Camp. (r) Taylor t. Sullen, 5 Ex. 779 • 506 ; ante, p. 299. 20 L. J. Ex. 21. (o) EUenborough, C. J., BaglehoU (s) Horsfall t. Thomas, 1 H. & C. T. Walters, supra. 90 ; 31 L. J. Ex. 322 ; Smith v. (p) Ward T. Eoihs, L. E. 4 Ap. Hughes, L. E. 6 Q. B. 597 ; 40 L J Ca. 13 ; 48 L. J. Q. B. 281 ; post, Q. B. 221 ; ante, p. 278. p. 334. (t) Margetson v. -Wright, 7 Bing. (q) Shepherd v. Kain, 5 B. & Aid. 603 ; see per cur. Kolyday v. Morgan 240 ; see Fletcher v. Bowsher, 2 Stark. 1 E. & E. 1 ; 28 L. J. Q. B. 9. ' 661. (m) Cookbum, C. J., Smith r. Hughes, supra. 302 CAUSES VITIATING AGREEMENT. PabtI. Non-dis- closure by vendor of real estate. Defect in title. Charges andincum- Ibrances. employed to sell a picture had refused to state the name of the owner, and after becoming aware that the buyer was under a delusion as to the ownership which enhanced the price, did not remove the delusion, but took advantage of it to eilect the sale, it was held that the buyer might avoid the sale as induced by fraud {x) . Upon the same principles applied to a sale of land or real estate, the non-disclosure by the vendor of a material defect known to him in the title, or in the subject of sale, or of any other material fact, would in general entitle the purchaser to avoid the sale ; and notwithstanding conditions of sale expressly providing against the effect of errors and omissions upon the validity of the sale [y) ; or expressly requiring facts to be assumed which the vendor knows to be false (2) . Thus, where a vendor did not disclose that he had no title to part of the land sold, which he knew to be an encroachment upon a common, the sale was annulled and vendor ordered to repay the purchase money and all costs and expenses («) . And where the lessor of a mine did not disclose the fact that a material portion of the mine was under land between high and low water mark to which he had no title, the lease was set aside at the suit of the lessee, who had no means of knowing the defect (b). But in the absence of fraud the purchaser must accept the title and property at his own risk, and after taking the conveyance his only remedy is upon the covenants for title contained in the deed ; or upon special stipulations against defects of title or errors of description, if any, contained in the contract of sale(c). — The non-disclosure by the vendor of mortgages, charges, or incumbrances upon (x) EUenborough, C. J., Sill r. Gray, 1 Stark. 434 ; Jervis, C. J., Keates v. Lord, Cadogan, 10 C. B. 600. iy) Nottingham Brick Co. v. JButhr, L. R. 16 Q. B. D. 778; 65 L. J. Q. B. 280 ; see Mc Faivcett and Holmes, L. R. 42 C. D. 150; 58 L. J. C. 763. (z) Be Banister, L. R. 12 C. D. 131 ; 48 L. J. C. 834. (a) Edwards v. M'Leay, Coop. 308; 2 Swanst. 287 ; see Hart v. Swain, L. R. 7 0. D. 42; 47 L. J. C. 6. (J) Mostyn v. West Mostijn Coal Co., L. R. 1 0. P. D. 145 ; 45 L. J. C. P. 401. (c) Early v. Garrett, 9 B. & C. 928; Iliimc v. Pocock, L. R. 1 Ch. 379 ; 35 L. J. G. 731 ; Selborne, L. C, Brounlic v. Campbell, 5 Ap. Ca. 937 ; Ld. Blackburn, lb. 949 ; Clare y. Lumb, L. R. 10 C. P. 334 ; 44 L. J. C. P. 177 ; Clayton y. Leech, L. R. 41 C. D. 103; and see ante, pp. 88, 284. ^ ' CONTRACTS INDUCED BY FKAUD. 303 the property sold, hj whioli the purchaser is misled, is ground Ch. vr. for avoiding the sale {d) : as where the vendor represented '. — '- the property to he subject to an annuity, without disclosing the fact that it was granted for four lives (e) ; where the vendor concealed the fact that the property was subject to a large anmial charge for the maintenance of a river wall (/) ; and where an estate is sold without disclosing the fact that it is subject to a public right of way or other easement {g), or to covenants restrictive of the use (/*). But a vendor was held excused from disclosing a claim which had been made against the property and not pursued; though afterwards prosecuted against the buyer («'). — Upon the same principle Eights and a vendor is bound to inform the purchaser of special rights tenants. and equities of tenants in possession of the property sold, the constructive notice arising from the state of the possession having no application between vendor and purchaser ; as in the case of a vendor of a public-house, who described it as in the occupation of a tenant, without stating that it was under lease to a brewer for an unexpired period of eight years, and therefore was refused specific performance against a purchaser who bought it for his business of a brewer without notice of such lease (k). — Upon the letting of a house, the lessor is not Defects in bound to inform a proposed tenant of the state of repair, p™™^^^- where the latter can examine it himself; and though the lessor knew it to be unfit for habitation by reason of defec- tive repair, provided there was no concealment, the lessee is not entitled to avoid the lease (l). And generally upon a {d) Torrance v. Bolton, L. K. 8 Ch. (A) Nottingham Brick Co. v. Sutler, 118 ; 42 L. J. C. 177 ; ante, p. 281 ; L. E. 16 Q. B. D. 778 ; 55 L. J. see Sterrt/ v. Combs, 40 L. J. C. 695 ; Q. B. 280 ; see Mlis v. Sogers, L. R. and see 22 & 23 Vict. c. 35, s. 24 ; 29 C. D. 661 ; ante, p. 285. He Ford and Sill, L. R. 10 0. D. (i) Brownlie v. Campbell, L. E. 6 365 ; 48 L. J. C. 327. Ap. Ca. 925 ; see Heywood \. Mal- ic) Drysdale v. Mace, 2 Sm. & G-. lalieu, supra. 225 ; 23 L. J. C. 518. (k) Caballcro v. Senty, L. R. 9 Ch. {/) STiirley v. Stratton, 1 Bro. C. 447 ; 43 L. J. C. 635, disapproving C. 440. James t. Lichfield, L. R. 9 Eq. 61 ; ig) Gibson v. B'Este, 2 T. & 0. 39 L. J. C. 248 ; see Phillips v. 542 ; see Wilde v. Gibson, 1 H. L. C. Miller, L. R. 10 C. P. 420 ; 44 L. J. 605 ; Oldjield v. Round, 6 Ves. 508 ; C. P. 265. Dykes v. Blake, 4 Bing. N. C. 463 ; (Z) Keatesw. MarlCadogan, 10 C. B. Heywood v. Mallalieti, L. R. 25 C. D. 591. 357; 53 L.J. C. 492. 304 CACSES VITIATING AGREE M EXT. Past I. Value of property sold. Non-dis- closure by purchaser. letting of a house or land, there is no implied condition or warranty that it is then fit for habitation or for any other purpose for which it is taken (m), or that it wiU continue so during the term (w) . But in the letting of a furnished house for immediate habitation, it is held to be an implied condition that the house, including the drains and furniture, are then in a habitable state (o). The fact of a purchaser buying in ignorance of a material defect may be a defence to a bill for specific performance ; though the circumstances may not entitle him to avoid the contract (p) . And a positive represen- tation made as to the state -of repairs upon the sale or lease of a house may be a ground in equity for requiring the vendor to make good the representation or to allow compensation for defects (q). — A vendor is in general under no obligation to disclose the price at which he has himself purchased or con- tracted to purchase the subject of sale (r) ; but if he mis- represents the price given, it is a fraud upon the purchaser (s) ; and if he stands in a fiduciary relation to the purchaser, as trustee or agent, he is bound to the fuUest disclosure (t) . Nor does a vendor in general incur any liability by assert- ing a mere opinion of the value of the property not amount- ing to an intentional misstatement («). But where a vendor put up for sale by auction property described as an interest in a partnership, knowing that it was worth nothing, and it was bought by a purchaser in ignorance of the circumstances that rendered it of no value, the sale was set aside (x). A purchaser is not bound to give the vendor information [m] Keaies v. Cadoffan, supra ; Siti ton T. Temple, 12 M. & W. 52 ; Hart v. Windsor, 12 M. & "W. 68 ; Man Chester Warehouse Co. v. Carr, L. E, 5 C. P. D. 507 ; 49 L. J. C. P. 809. in) Arden v. PuUen, 10 M. & "W, 321. (o) Smith V. Marrable, 11 M. &"W, 5 ; Wilson v. Finch-Satton, L. R. 2 Ex. D. 336 ; 46 L. J. Q. B. 489 See the Housing of the Working Classes Act, 1885 (48 & 49 Vict, o. 72), s. 12 ; Walker ^r. Eobbs, L. R. 23 Q. B. D. 458 ; 59 L. J. Q. B. 93 and see post, p. 569. [p) Lucas V. James, 7 Hare, 410 see ante, p. 281. (q) Grant v. Hunt, Coop. C. C. 173 ; lamare v. Dixon, L. E. 6 H L. 414 ; 43 L. J. C. 203. (;■) Fxp. Gover, L. E. 1 C. D. 182 ; 45 L. J. C. 83 ; Oraig v. Phillips, L. E. 3 C. D. 722 ; 46 L. J. C. 49. (s) See ante, p. 296, u. («). (t) Bagnall \. Carlton, L. E. 6 C D. 371 ; 47 L. J. C. 30 ; and see post, p. 305. (m) See ante, p. 296 ; and see Say- garth V. Wearing, L. E. 12 Eq. 320 • 40 L. J. C. 577. (x) Smith 7. Sarrison, 26 L. J. C. CONTRACTS INDUCED BY FRAUD. 305 of the value of his own property, because it is a matter pre- Ch. vi. sumptively -within the knowledge and judgment of the vendor : aa where the purchaser knows there is a mine under it, and the vendor makes no inquiry (y) ; and where a first mortgagee with power of sale purchased the interest of a second mort- gagee at a reduced sum without disclosing that he had arranged for a sale of the property at a price sufficient to cover both mortgages (s). — But this rule has a restricted application, and non-disclosure by the purchaser of a material fact, of which he knows the vendor to be ignorant, may avoid the sale : as where the purchaser bought a reversionary interest, knowing, but not disclosing the death of the tenant for life, of which he knew the vendor to be ignorant (a) ; where a lessee for lives contracted for the renewal of the lease, knowing at the time and not disclosing the fact that the surviving life was at the point of death (b) ; where a person purchased a policy of insurance, having ascertained that the person whose life was insured was dangerously ill and without disclosing that fact to the seller (c) ; where a purchaser of a life interest, having obtained medical reports upon the life, showed the vendor the unf avoiurable reports and suppressed all that were favourable (d) ; where colliery owners purchased the adjoining land without disclosing that they had already wrongfully worked coal from it through their own colliery (e) ; and where a debtor obtained a composition for his debt by not disclosing that he had recently come into property by the death of his father, whom he represented as refusing to help him (/). — If the purchaser stands in a fidu- Purchaser Clary relation to the vendor, ne is bound to communicate ail relation. information concerning the value of the property which is (y) Thiirlow, L. C, Fox v. Mac- (b) Ellard v. Llandaff, I Ball &B. kreth, 2 Bro.C. C. 420; Eldon,L.C., 241. Turner T. Harvey, Jac. 178 ; Cook- (e) Eolfe, B., Jones \. Keen, 2 M. burn, C. J., Smith v. Bughes, L. B. & Rob. 348. 6 Q. B. 604 ; Hatherley, L. C, (rf) Boswell v. Coaks, L. R. 27 C. FhilUps V. Somfratj, L. R. 6 Ch. D. 424 ; 54 L. J. C. 347 ; Coaks v. 779. Boswell, L. R. 11 Ap. Ca. 232. {z) Dolman v. Nokes, 22 Beav. 402. (e) Phillips v. Somfray, L. E. 6 (a) Eldon, L. C, Turner T. Savvey, Ch. 770. Jac. 178. {/) Gilbert v. Endean, L. E. 9 C. D. 259. L. 306 CAUSES VITIATING AGREEMENT. PabtI. Credit of purchaser. material for the seller to know: as where a person, being consulted by another as to the payment of his debts, pur- chased his property, having first obtained a valuation which he did not disclose {g) ; where the vendor being ignorant of the property relied upon the valuation of the purchaser who knew the property, which he misrepresented at much less than the real value {h) ; where an agent to sell, representing that he sold to another, concealed the fact that he was himself the purchaser (/) ; where the solicitor of a bankrupt purchased from the trustee in bankruptcy without disclosing the information he had acquired of the title and value of the property {k) ; but a solicitor to a party to a suit who obtains leave to bid at a sale under order of Court, is in the position of a stranger and is not bound to any fuller disclosure (^). — A purchaser is not in general bound to disclose the state of his pecuniary credit : thus, a purchaser buying goods in the way of his trade is not bound to disclose the fact that proceedings in bankruptcy are then pending against him upon a debtor's summons {m). But if a debtor compounds with his creditors, knowing them to be under a false impression as to the value of his property, and without disclosing the true state, the composition may be avoided and the creditors remitted to their original claims («). Employ- ment "by vendor of bidder at auction. In sales by auction, before the " Sale of Land by Auction Act, 1867," upon the condition that " the highest bidder shaU be the purchaser," Courts of law held that the employment by the vendor of a " puffer," or agent to bid for the vendor, without disclosing the fact, was a fraud which entitled the purchaser to avoid the sale (o). Courts of equity followed the common law as to bidding merely to enhance the price, but seem to have allowed the employment of a bidder for the {(/) Tate T. WiUiamson, L. K. 2 Ch. 55 ; see Fox v. Maclcreth, 2 Bro. 0. C. 400; 1 W. & T. L. C. 6tli ed. 141 ; and see ant(\ p. 304. (A) Haygarlli v. TFeanng, L. E. 12 Eq. 320; 40 L. J. C. 577. (i) McPhersmi y. Walt, L. R. 3 Ap. Ca. 254. {k) Luddij V. Peard, L. R. 33 0. D. 500; 53 L. J. C. 884. (0 Boswell V. Coaks, L. K. 23 C. D. 302 ; 62 L. J. C. 465. (m) Ex p. JThitta/M; L. E. 10 Ch. 446 ; 44 L. J. B. 91 ; ante, p. 295. («) Tindal.C.J., Vine v. Mitchell,! M. & Rob. 337 ; see Gilliert v. Endean, supra. [o) Green v. Baverstock, 14 C B N. S. 204; 32 L. J. C. P. 181; Thornett v. Maims, 16 M. & W. 367. CONTRACTS INDUCED BY FRAUD. 307 purpose of protecting the property, without disclosing it; C!h. vi. though the employment of more persons than one for this purpose, being unnecessary, was deemed to he fraudulent {p). In order to remove any conflict between the Courts of law ^aie of and equity upon the matter the " Sale of Land by Auction Auction Act, 1867," 30 & 31 Yict. o. 48, s. 4, enacted, " that from '^'*- and after the passing of this Act, whenever a sale by auction of land would be invalid at law by means of the employment of a pufEer, the same shall be deemed invalid in equity as well as at law." — The announcement that property is to be Sale ^ '■ "without sold by auction " without reserve," imports that there shall reserve." be no bidding directly or indirectly on the part of the vendor; and the employment by him of any bidder at a sale under such conditions without notice is fraudulent (j). The above Reserved Act requires, by sect. 5, " that .the particulars or conditions of sale by auction of any land shall state whether such land will be sold without reserve or subject to a reserved price, or whether a right to bid is reserved; if it is stated that such land will be sold without reserve or to that effect, then it shall not be lawful for the seller to employ any person to bid at such sale, or for the auctioneer to take knowingly any bidding from any such person." A distinction is thus made between a reserved price and a reserved right to bid ; and under condi- tions stating the former only, it is not competent for the vendor to employ a person to bid up to the reserved price (r). But under a sale by order of Court " without reserve, but with liberty to the parties interested to bid," it was held that the mortgagee in possession, who conducted the sale, might bid up to the amount of his charge without affecting the validity of the sale (s). — By sect. 6, "where any sale by auction Reserved of land is declared either in the particulars or conditions of SI. (p) Mortimer v. Bell, L. E. 1 Ch. Harrison, 1 E. & E. 309 ; 29 L. J. 10 ; 35 L. J. C. 35. Q. B. 14 ; Mainprice v. Westlei/, 6 B. [q) Cottenham, L. C, Robinson v. & S. 420 ; 34 L. J. Q. B. 229 ; post, Wall, 2 Phill. 375 ; Meadows v. Tan- p. 404. ner, 5 Madd. 34 ; see Parke, B., (r) Gilliat v. Gilliat, L. R. 9 Eq. Thorneit v. Eaines, 15 M. & W. 372. 60 ; 39 L. J. C. 142. As to the liability of the auctioneer (s) Dimmoclcy. Hallett, L. E. 2 Ch, in advertising a sale by auction 21 ; 36 L. J. C. 146. "without reserve," see Warlow v. x2 308 CAUSES VITIAllKG AGKEEMENT. PaetI. such sale to be subject to a right for the seller to bid; it shall be lawful for the seller or any one person on his behalf to bid at such auction in such manner as he may think proper." The auctioneer bidding for the seller, besides the seller who has reserved a right to bid, will render the sale voidable (i!) . — Sect. 7 provides that the practice of the Court of opening the biddings on any sale shall be discontinued, unless on the ground of fraud or improper conduct in the management of Purchaser the Sale (u). — On the other hand, if a purchaser procure a sale bidders. to himself by fraudulently or wrongfully deterring other persons from bidding, the vendor may avoid the sale (a:). Where the purchaser employed the vendor's agent to bid for him, which deterred other persons from bidding who sup- posed him to be bidding for the vendor, it was held sufficient ground for refusing specific performance (y). — The employ- ment of a bidder at a sale by auction by a third party without the knowledge of the vendor is immaterial to the validity of the sale ; and in the ease of a sale by a mort- gagee, at which the mortgagor without his knowledge em- ployed a bidder to enhance the price, the mortgagee was held entitled to enforce the sale (z). Misrepre- sentation with knowledge of the fact. Misrepre- sentation in ignorance of fact. Where a person makes a representation to another for the purpose of inducing a contract, if it is proved to be untrue to his knowledge, an intention to deceive is presumed to exist, and the contract is voidable (a). Any inquiry into the belief of the person is then excluded (i) ; and the ulterior motive for making such representation is immaterial, though it be made with the motive and in the expectation of benefiting the person to whom it is made (c).— And for the purpose of inducing a contract "if persons take upon themselves to make (i!) farJUtY. Jephson, 46 L. J. C. P. 529. (m) See Delves v. Delees, L. R. 20 Eq. 77 ; lie Bartleit, L. R. 16 C. D. 561 ; 50 L. J. C. 205. isc) Fuller t. Abrahams, 3 B. & B. 116. (i/) Twining v. Mori ice, 2 Bro. C. C. 326. (a) Union Sank of London v. 3Iiiii- ster, L. E. 37 C. D. 51 ; 57 L. J. C. 124. {a) Halsbury, L. C, Arnison \. Smith, L. E. 41 C. D. 368 ; Ld. Blackburn, Brownlie v. Campbell, L. R. 6 Ap. Ca. 950. (A) Sinev. Campion, L. R. 7 0. D. 344. (f) See ante, p. 292. CONTRACTS INDUCED BY FRAUD. 309 assertions as to which they are ignorant whether they are Cs. vi. . • • Sect. II.' true or false, they must in a civil point of view he held as responsible as if they asserted that which they knew to be untrue;" and the contract thereby induced is voidable (c?). Where two partners in a bank joined in inducing another to become a partner by presenting to him a statement of the affairs of the bank which was false to the knowledge of one of them, but not to the knowledge of the other ; it was held that the incoming partner was entitled to rescind the contract and to claim restitution against both ; as regards the innocent partner it was held to be "at least a representation of a fact of which he knew nothing whatever, whether it was true or not ; and if on the treaty for a purchase, one party makes a representation, he cannot be afterwards heard to say that he knew nothing about the matter ; nor can he be allowed to retain any benefit which he might have acquired from the representation which he has made"(^^). Upon this principle where a vendor without inquiry sold land under a repre- sentation that it was freehold, which was in fact copyhold, the purchaser was held entitled to have the conveyance set aside and the purchase money and his expenses returned (/). So, a representation made in a prospectus of a company being untrue in fact, it is immaterial, as regards the right of a shareholder who was thereby induced to take shares to have his name removed from the register, whether the directors when they issued the prospectus believed it to be true or not ; though that might be material in proceedings against the directors {g). But an untrue representation made with belief of its Represen- truth, though it may be sufficient ground for avoiding a belief of contract obtained upon the faith of it, is insufficient to ^'^*''"*'^- support a substantive action of deceit for damages against the (d) Ld. Cairns, Reese Siver Mrning Ld. Blackburn, Brownlie v. Campbell, Co. V. Smith, L. K. i H. L. 79 ; 39 L. B. 5 Ap. Ca. 953. L. J. C. 849 ; Maule, J., Evans t. (e) Itawlins v. Wickham, 2 D. & J. Edmonds, 13 C. B. 786; 22 L.J. C. P. S04 ; 28 L. J. C. 188. 211, cited by Fry, J., HartY. Su-aine, (/) Eart v. Swaine, L. R. 7 C. D. L. R, 7 0. D. 46 ; 47 L. J. C. 6 ; 42 ; 47 L. J. C. 6. Jessel, M. R., Sedgmvev. Surd, L. {(/) Cairns, L. J., Smith' s case, L. R. 20 C. D. 13 ; 51 L. J. C. 117 ; R. 2 Ch. 615 ; 36 L. J. C. 619. 310 CAUSES VITIATING AGEEEMEST. Paet I. party making it ; because in order to support such action at common law it is held necessary that the false statement should he made fraudulently, that is, at least without an honest belief in its truth {h). " The authorities," it is said, "establish the Action for following propositions : — First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shown that a false representation has been made knowingly; or without belief in its truth; or recklessly, careless whether it be true or false, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial" («'). The burden of proving fraud in an action of deceit lies upon the plaintiff ; and it is not sufficient to prove that there existed no reason- able grounds for belief in the truth of a false representation ; unless the absence of belief, as the ingredient of fraud, is found as a distinct fact resulting therefrom [k). But it is said that the question to be determined upon the evidence of the grounds of belief, as the test of the representation being fraudulent, is "whether a reasonable man would be Kkely under the circumstances so to believe" (?). Proof of actual knowledge excludes all question of belief (m) ; but con- structive knowledge of the truth is not sufficient ground for presuming a fraudulent intention, the means of knowledge for this purpose not being deemed the same as knowledge (»). Liability of The liability of directors of a company for the statements Act. in a prospectus is now expressly defined by " the Directors' Liability Act, 1890," 53 & 54 Vict. c. 65, which enacts (A) Berri/ v. JPeek, L. E. U Ap. L. J. C. 594. Ca. 337; 58 L. J. C. 864; Glasier v. {k) Beirij v. P«/,-, supra; Glasier iJoiis, L.E. 42 CD. 436; 58 L.J. C. v. liolb, L. E. 42 C. D. 436; 58 820 ; see Buhop v. Balkis Co., L. E. L. J. C. 820. 25 Q. B. D. 512 ; 59 L. J. Q. B. (?) Ld. Hersohell, Derrij v. Peek, 672 ; ThiodoH v. Tindall, 60 L. J. Q. L. E. 14 Ap. C. 380 ; 58 L. J. C. 890. B. 526. (in) Sine v. Campion, L. R. 7 C. D. (0 Ld. Hersohell, Berry v. Feik, 344. L. E. 14 Ap. Ca. 374 ; 58 L. J. G. (n) WUde v. Gibson, 1 H. L. C. iZli; per cur. Angus Y.CliJlurd,(\%%\) 605; Ld. Blackburn, Urounlie v. 2 Ch. 449 ; 60 L. J. C. 443 ; see J.uw CampbsU, L. E. 5 Ap, Cii. 952 V. JBoui-erie, (1891) 3 Ch. 82 ; 60 COMTRACl'S INDUCED BY FKAUD. 31 1 (sect. 3) to the effect that every director and promoter of a com- Ch. "VI. pany, and every person who has authorised the issue of a pro- ^ — - speotus inviting suhscriptions for shares or debentures, " shall be liable to pay compensation to all persons who shall subscribe for any shares or debentures on the faith of such prospectus for the loss or damage they may have sustained by reason of any untrue statement in the prospectus;" unless it is proved "that he had reasonable ground to believe and did believe, that the statement was true " (o). Sect. 4 provides indemnity to any person whose name is used in the prospectus as a director without his authority. And sect. 5 gives a right of contribution between co-directors who are equally liable for the untrue statement. A representation made by a person in forgetfulness of the Misrepre- truth may make him responsible as if he made it with know- in forget- ledge of the truth, so far as to avoid a contract induced by it. thetruth. " The mere fact of forgetfulness by a man who has known a certain fact, who is asked whether that fact has happened or not and says positively that it did or did not, cannot possibly be an excuse; because if he had spoken the simple truth he would have said, 'I do not recollect whether it is so or not;' he takes upon himself the responsibility of a positive state- ment, upon the faith of which he knows that the other man is going to deal for valuable consideration "(^;). Upon this principle where the trustee of a fund represented to a pro- posed assignee that the assignor was entitled to the fund and could make the assignment, forgetting that he had received notice of a prior incumbrance, it was held that he was estopped from asserting the prior incumbrance against the claim of the assignee {q). And where a person represented to a lender of money that he would grant a lease to the bor- rower to be assigned as security, in forgetfulness of the fact that he had before granted a lease of the same property to another, he was held responsible for the repayment of the (o) See the Companies Act, 1867, 17 Beav. 94 ; 22 L. J. C. 662 ; low B. as, post, p. 524. V. Bouverie, (1891) 3 Ch. 82; 60 L. {p) Selborne, L. C, Brownlie v. J. C. 594. Campbell, L. K. a Ap. Ca. 936 ; (q) JBurrowes v. Lock, 10 Ves. 470. Eomilly, M. B., Fulsford t. Sichards, See post, p. 1010, n. { >^- - CONTRACTS INDUCED BY FRAUD. 3 15 fraudulent as against the promoters or directors issuing the Ch. vi. , ^ Sect. II. prospectus [p). A representation as to one of several matters which is Partial material, or a representation ■which is untrue m a material sentation. part may vitiate the whole agreement ; " for where a party has induced another to act on the faith of several representa- tions, any one, of which he has made fraudulently, he cannot set up the transaction by showing that every other repre- sentation was truly and honestly made " (g) ; without further proviag that the agreement was induced by those only, to the entire exclusion of that which is fraudulent (r). It is sufficient to avoid an agreement that a misrepresentation has contributed to induce it, though it was not the sole induce- ment (s). And though the misrepresentation is partial only in its effect, the party so obtaining a contract is not entitled to conform the terms to the true state of facts and so enforce it against the will of the other party; for that would be equivalent to making a new contract {t). A misrepresentation made to a person which is contradicted Misrepro- by his own knowledge cannot in fact have induced the contract to person and therefore cannot be ground for avoiding it ; and where jj^^^dgc the means of knowledge are at hand and the attention of the °^ *^^ f^*^'- party is called to them, the circumstances of the case may be such as to require that a knowledge should be imputed to him which he ought to have obtaiaed (m) ; as where a farm was sold under the description of being in a " ring fence," and the purchaser who lived in the neighbourhood must have known that it did not lie in a ring fence (x) ; and where a meadow was sold without stating that there was a public footpath across it, which the purchaser who occupied the (p) See the Companies Act, 1867, (»•) Turner, L. J., Mcol's case, 3 o. 38, citei post, p. 524. D. & J. 387 ; 28 L. J. C. 270. (j) Cranworth, L. J., Reynell v. (s) Edgington v. Fitzmnitrice, L. R. Sprije, 21 L. J. C. 660; Wood, V.-C, 29 C. D. 459 ; 55 L. J. C. 650. Sallows T. Fcrnie, L. R. 3 Eq. 539 ; (t) Clermont v. Tashurgh, 1 Jac & 36 L. J. C. 273 ; Halsbury, L. C, W. 112. Arnison v. Smith, L. R. 41 C. D. {u) Lang-dale, M. R., Clapham v. 369. ShiUito, 7 Beav. 149. {x) Dyer v. Margrave, 10 Ves. 505. 316 CAUSES VITIATING AGKEEMENT. Faet I. adjoining house and land must have known {y). So where the purchaser of mines or other property has made a full inspection and examination himself (z) ; but a cursory ex- amination by an inexperienced person would not necessarily fix such person with knowledge {a). And the knowledge of a party as to the truth of a matter, is quite immaterial, if the other party has expressly guaranteed it in the con- tract {b). Reliance Qn the other hand, where a party in fact relies upon the represen- representation, as intended by the party making it, he is in tation. general entitled to avoid the agreement, notwithstanding there were means of information (c). He is presumed to have acted upon the representation, as against the party who made it ; and the burden of proof lies upon the latter to show, not only that he had the means of information, but that he relied upon his own information or judgment, and was not in fact misled by the representation [d). "Where a party relies upon concealment or non-disclosure to avoid his agreement he must prove his own ignorance of the matter, and that it is not imputable to his own fault or negligence (e). — Upon the above principles the contract has been held voidable : where the purchaser of a reversionary estate relied upon the false state- ment of the vendor of the rents, without himself inquiring of the tenants (/) ; where a lessee agreed for the lease of a house upon a representation of the lessor that it was sub- stantial and well built, without himself inspecting it {g) ; where a purchaser relied upon maps and plans of the property produced by the vendor, in which there was a material error {h) ; (y) Oldfield-v. Bound, 5 Ves. 508. Co., 57 L. J. C. 717. (z) Attwood T. Small, 6 CI. & F. (d) Torrance v. BoHon, L. E. S Ch. 232; Lowndes Y. lane, 2 Cox, 363; 118; 42 L. J. C. 177 ; Redgrare t. Jennings v. Broughton, 5 D. M. & G. Kurd, L. R. 20 C D 1 ■ 51 L J C 126; 23 L. J. C. 939. 113. (a) Higgins v. Samels, 2 J. cfe H. («) 'Kjaght-'&Tnce.Y.-C., Stikeman 460 ; see Redgrave v. Hurd, L. E. 20 v. Dawson, 1 D. & Sm. 108. C. D. 1 ; 51 L. J. C. 113. (/) Lysneyv. Selby, 2 Ld. Raym. (b) Cato V. Thompson, L. E. 9 Q. 1118; seeDobellv. Stereiis. 3 B &C B. D. 616. 623. (c) Chapman y. Shillito, 7 Beav. (g) Cox v. Middleton, 2 Dre-w. 209 • 146 ; Cranworth, Jj. J., Seynell v. 23 L. J. C. 618 ' Sprge, 1 D. M. & G. 710; 21 L. J. (/,) Arnold y^ Arnold, L. E 14 C C. 663 ; Kekewich, J., Capel v. ;Si«!5 D. 270. COXTRACTS INDUCED BY FRAUD. 317 where the sale of a business was efEected by misrepresentation Ch. vi. SSOT 11 of the value, though the purchaser had access to the books and '- — ^ accounts («). So an underwriter is entitled to rely upon the representations of the shipowner, though he has the means of correct information in Lloyd's Shipping List ; for there is no presumption of his knowledge of the contents in favour of the insurer {k). And a shareholder in a company may repudiate his shares upon the ground of fraudulent statements in the prospectus, though it refers to reports and information to be obtained at the office which disclose the truth (/). The pro- spectus of a company, referring to the articles of association as open to inspection, may be construed as explaining and correcting a doubtful or ambiguous statement by the articles (»j) ; but it cannot thereby counteract a positive misstatement (»). The doctrine of constructive notice, which operates against Construc- a purchaser for the protection of the rights and equities of third parties, does not apply between vendor and purchaser, to correct a misrepresentation or non- disclosure of a material fact (o) . Upon the sale of a lease a misrepresentation of the contents by the vendor is not obviated by constructive notice of the contents in the purchaser {p). In contracts for an underlease the proposed lessee is affected with constructive notice of the covenants of the original lease, but as against the proposed lessor he may rely upon a positive representation made as to such covenants {q) . And upon the same principle if a party to a deed misrepresents the legal effect for the purpose of inducing another to execute it, who in fact does (i) Rawlins v. Wicltham, 3 D. & J. Wlieal Co., 37 L. J. C. 2-53 ; Downes 304 ; 28 L. J. C. 188 ; Redgrave v. v. Ship, L. K. 3 H. L. 343 ; 37 L. J. Surd, L. R. 20 C. D. 1 ; 51 L. J. C. C. 642. 113. (o) Jessel, M. R., /onssT. JSJ»H»»e)-, (i) Morrison v. Universal Marine L. R. 14 C. D. 590 ; 49 L. J. C. 775 ; Jns. Co., h. R. 8 Ex. 40; 42 L. J. see Re London and Stafford Ins., Jj.'R. Ex. 17 ; Mackintosh v. Marshall, 11 21 C. D. 149 ; 53 L. J. C. 78. M. ScW. 116. (p) Jones v. Rimmer, supra; see (1) Central Venezuela Ry. v. Kisch, Caballero v. Menty, L. R. 9 Ch. 447 ; L. R. 2 H. L. 99. 43 L. J. C. 635 ; ante, p. 303. {m) Sallows v. Fernie, L. R. 3 Ch. (?) Van y. Corpe, 3 M. & K. 269 ; 477. Fliyht v. Barton, ib. 282 ; see Porter (n) Brigg's case, L. R. 1 Eq. 483 ; t. Drew, L. R. 5 C. P. D. 143 ; 49 35 L. J. C. 320 ; Langham v. East L. J. C. P. 482. 318 CAUSES VITIATING AGREEMENT. Past I. execute it upon the faith of the representation without reading the contents, the latter may avoid the deed (r). Contract obtained by fraud of agent. Limits of authority. A contract ohtained for a principal by an agent by means of fraud or misrepresentation is voidable against the prin- cipal, as if he had obtained it himself by the same means ; although such means were used by the agent without the authority or knowledge of the principal ; for a person cannot retain any benefit obtained by the fraud of his agent («). An action will lie against the principal to recover damages caused by the fraud of the agent committed in the course of the agency or employment, although the fraud was not known to the principal (t). And an action will lie to recover money received by the principal under a contract obtained by fraud of his agent, committed under such circumstances (t«) . — ^The principal is not responsible for representations of his agent made without his authority and beyond the scope of the agency (cc) . But the agent is personally Hable for his own fraud, whether acting for and by the authority of his prin- cipal or not (y) . In a case where an agent employed to let a house represented to the person who agreed to take it, that there was no objection to the house; whereas there was in fact the objection of a nuisance existing in the neighbour- hood, which the lessor knew of, but the agent did not ; it was held that there was no ground for avoiding the agreement : the Court agreed that if the principal had authorized the statement which he knew to be false, or if he had purposely (r) Hirschfleld v. L-. i- S.By.,'L.'R. 2 Q. B. D. 1 ; 46 L. J. Q. B. 94 ; ante, p. 294, n. {I). (s) Holt, G. J., Sern v. Nicholh, 1 Salk. 289 ; Murratj v. Mann, 2 Ex. 540; Kindersley, V.-C, BrockioeWs case, 4 Drew. 212 ; 26 L. J. C. 856 ; see Weir t. Bell, L. R. 3 Ex. T>. 238 ; 47 L. J. Ex. 704 ; Re Banister, L. E. 12 C. D. 131; 48 L. J. C. 837. (i) Udell V. Aiherton, 7 H. & N. 172 ; 30 L. J. Ex. 337 ; Barwick v. Mnglish Joint Stock Bank, L. E,. 2 Ex. 269 ; 36 L. J. Ex. 147 ; Mackay v. Commercial Bank, L. R. 6 P. C. 394 ; 43 L. J. P. C. 31. (t() Blake y. Albion Ass., L. R. 4 C. P. D. 94; 48 L. J. C. P. 169; Swire v. Francis, L. R. 3 Ap. Ca. 106 ; 47 L. J. P. C. 18 ; Chapleo v. Brunswick Building Soc, L. R. 6 Q B. D. 696 ; 50 L. J. C. P. 372. (.r) Cokinan v. Riches, 16 C. B. 104; 24 L. J. C. P. 125 ; McGowan v. Dyer, 8 Q. B. 141 ; British Mutual Bank v. C'hurmcood Ry., L. R. 18 Q. B. D. 714 ; 56 L. J. Q. B. 449 ; see Bishop V. Balkis Co., L. R. 25 Q. B. D. 512 ; 59 L. J. Q. B. 565. {y) Amot V. Briscoe, 1 Yes. sen. 95 ; see Catton v. Bennett, L. R. 26 C D 161 : 63 L. J. C. 685. CONTKACTS INDUCED BY FRAUD. 319 employed an agent ignorant of the truth in order that such Ch. vi. Sect II. agent might make the false statement believing it to be true, he would be guilty of a fraud; but the majority of the Court held that the simple facts that the principal knew of the existence of the nuisance, and that the agent who did not know of it represented that it did not exist, were not suffi- cient to avoid the agreement (s). But as a principal is held responsible for fraud committed by his agent, though without his knowledge, in a matter within the scope of his employ- ment, it seems that he should also be held responsible for the representations of his agent in such matters, as if made by himself («). Upon the above principles a company or corporate body is Directoia generally responsible for the misrepresentations of directors pany. and agents made in the exercise of their offices : a person induced to apply for shares by such misrepresentations may avoid his contract with the company (b) ; and may recover back money received by the company under such contracts (c) ; but if he retains the shares he has no remedy against the company (d). The company are not responsible for misrepre- sentations made by directors or other agents beyond the scope of their office or authority ; and shares contracted for under such inducements cannot be repudiated as against the company (e) : as in the case of the speech of the chairman to a meeting of shareholders, which is not addressed to the public as an inducement to take shares, but is a confidential state- ment to the company (/). — The directors and agents who issue fraudulent misrepresentations are themselves personally {zj Cornfooi y. Fowke, 6 M. & W. 713. 358, Atinger, C. B., diasentiente. (d) Cairns, L. C, Souldsworih v. [a) WiUes, J., Barwick t. English Glasgow Bank, L. R. 5 Ap. Ca. 325 ; Joint Stock Bank, L. R. 2 Ex. 262 ; see Burgess' scase,'L.'B..\5 CD 507; Bee Mullens y. Miller, L. R. 22 C. D. 49 L. J. C. 541. 194. («) Mcol's ease, 3 D. & J. 387 ; 28 (b) Brocku-ell's ease, 4 Drew. 205 ; L. J. C. 257 ; Newlands v. National 26 L. J. 0. 855 ; Ayre'scase, 25 Beav. Accident Ass., 54 L. J. Q. B. 428 ; 513 ; 27 L. J. 0. 579 ; New Bruns- British Mutual Bank v. Charnwood wick By. V. Conybeare, 9 H. L. C. Sy., L. R. 18 Q. B. D. 714; Barnett 711 ; 31 L. J. C. 297 ; and see Bar- v. South London Tramways Co., L. R. wick V. English Joint Stock Bank, 18 Q. B. D. 815 ; 56 L. J. Q. B. 452. supra. (/) Ee Eevala Gold Mining Co., {c) Capet Y. Sims Co., 57 L. J. C. L. E. 22 C. D. 593 ; 62 L. J. C. 434. 320 CAUSES VITIATING AGREEMENT. Part I. Contract induced by fraud of a third party. liable to the persons to whom they are addressed and who are deceived by them ; and the remedy against the directors and that against the company, if any, may be prosecuted concur- rently ($r). But directors are not liable for representations made by co-directors or other ofl&cers, which they have not themselves expressly or tacitly authorised or adopted (A). An agreement cannot be avoided by a party upon the ground that he was induced to agree by the fraud of a third party in which the other party to the agreement was not implicated (-/). For this reason a contract cannot be avoided for the fraud of an agent in a matter which is beyond the scope of his employment : thus a shareholder in a company cannot repudiate his shares upon the ground that he was induced to take them by unauthorised misrepresentations of directors or agents of the company, though he may have a remedy against the latter personally for fraud (^). And although a company is responsible for misrepresentations made in a prospectus issued by them, a person who is thereby induced to buy shares from a third party is not entitled to avoid the sale and repudiate the shares as against the seller (/). Upon this principle where a mortgagee sold the mortgaged property by auction, and the mortgagor without his knowledge employed a bidder at the auction to enhance the price, it was held that the buyer could not take advantage of the fraud to avoid the sale (w). Election to avoid contract. A party who has been induced to make a contract by the (ff) Capel V. Sims Co., supra; Sen- derson t. Zacon, L. E. 5 Eq. 249 ; see Ship v. Crosskill L. R. 10 Eq. 73 ; 39 L. J. C. 550 ; Peek t. Gumey, L. K. 6 H. L. 377 ; 43 L. J. C. 1 9 ; Sernj t. Peek, L. R. 14 Ap. Ca. 337 ; 68 L. J. C. 864 ; and see the Directors' Liability Act, ante, p. 310. (h) Weir v. Bell, L. E. 3 Ex. D. 238; 47 L. J. Ex. 754; Cargill v. Sower, L. R. 10 C. D. 502; 47 L. J. C. 649 ; Se Denham, L. R. 25 O. D. 752. (i) Bailer, J., Master v. Miller, 4 T. R. 338; Masters v. Ibberson, 8 C. B. 100; BeePiilsfordr. Richards, 17 Beav. 94 ; 22 L. J. C. 562 ; ii;« Metrop. Coal Ass., (1892) W. N. 29. {k) Barnes v. Pennell, 2 H. L. C. 497 ; Frowd's case, 30 L. J. C. 322 ; Kindersley, V.-C, BrockwelVs case, 4 Brew. 205 ; 26 L. J. C. 860 ; XicoVs case, 3 D. & J. 387; 28 L. J. C. 257; Sheffield's case, Johns. 451 ; 28 L. J. C. 325 ; see ante, p. 319. (0 Burantifs case, 26 Beav. 268 ; 28 L. J. C. 37 ; Worth's case, 4 Drew. 529 ; 28 L. J. C. 589 ; Peek v. Gumey, L. R. 6H. L. 377; 43 L. J. C. 19. («;) Tliiion Bank of London v. Mun- ster, L. R. 37 C. D. 51 ; 57 L. J. C. 124 ; ante, p. 308. CONTRACTS INDUCED BY FRAUD. 321 fraud or misrepresentation of the other party, under the ^'^■^h above conditions, acquires the right, on discovering the truth, to elect whether he -will affirm or avoid it ; but the contract continues valid until he determines his election. " So long as he has made no election he retains the right to determine it either way ; subject to this, that if in the interval whilst he is deliberating, an innocent third party has acquired an interest, or if in consequence of his delay the position even of the wrong-doer is affected, it- will preclude him from exercising his right to resciad ; and lapse of time without rescinding will furnish evidence that he has deter- mined to affirm the contract " (m) . — He may determine his Mode of ^ ' . election. election by express words or by some unequivocal act, under circumstances which render such words or act binding (o) . He may also bring an action claiming to have the contract rescinded and restitution ; in which case the rescission by order of the Court relates back to the commencement of the action which determines his election (p) . But he cannot assert any other contract than that in fact made ; he cannot disaffirm that contract and charge an implied contract as arising upon the executed consideration (j) . — He may also Plea of claim to avoid the contract by way of defence to any action or legal proceeding brought upon it ; for " the mere fact that the party to the fraud has issued a writ and commenced an action before the rescission is not such a change of position as would preclude the defrauded party from exercising his election to rescind" (r). The plea at common law is in the general form " that the defendant was induced to make the contract by the fraud of the plaintiff;" but the plea in that form, in order to make it a good plea, is taken to include an allegation that the defendant elects to avoid the contract; and it is necessary to prove some act of avoidance in support (») Per cur. Clough v. L. ^- JST. W. i H. L. 64 ; 39 L. J. C. 849. See Ml/., L. E. 7 Ex. 35 ; 41 L. J. Ex. Bagot t. £aston, L. R. 7 C. D. 1 ; 47 22 ; adopted in Morrison v. Universal L. J. C. 225. Ins., L. &. 8 Ex. 204 ; 42 L. J. Ex. {q) Ante, p. 44. 119; see^os*, pp. 323, 324. (r) For cur. Morrison v. Universal (o) Cora. Dig. "Election," cited Ins., L. E. 8 Ex. 205; 42 L. J. Ex. in Clough v. L. # N. IV. Rtj., supra. 119, following Clough v. L. ^ N. W. {p) Reese River Co. y. Smith, L. R. By., supra. L. Y 322 CAUSES VITIATING AGREEMENT. Past I. of it, as the return of goods sold or such other unequivocal Disclaimer act as the case may require («). — Where the contract results pert^?" in investing the party with property to which hahilities are incident, as an allotment of shares in a company, it is neces- sary in order to discharge himself from liability, not only to rescind the contract, but also to disclaim the property. Accordingly, in an action against a shareholder in a company for calls, a plea alleging merely that he was induced to become a shareholder by fraud is insufficient, as admitting that he is still a shareholder and subject to calls ; it is neces- sary further to allege that as far as possible he has disclaimed the shares (t). The effect of disclaiming the shares upon the ground of a fraudulent allotment is to discharge the liabUity ab initio; and a shareholder was held entitled to the full benefit of such discharge, though, in ignorance of the fraud, he had accepted a cancellation of the shares upon other grounds (u) . Affirmance If the party, upon discovering the fraud, affirms the tract. contract by some unequivocal act, he cannot afterwards revoke his election : according to the maxim, quod semel placidt in electionibus amplius dispKcere non potest (x). "Where a person was induced to undertake work for another for a certain sum upon a fraudulent misrepresentation of the quantities, and after discovering the fraud continued and completed the work ; it was held that he could claim payment only accord- ing to the contract price (y). Where a person had been induced by fraudulent misrepresentations to take a lease of a mine, and had continued to work the mine after discovery of the truth, he was held to have lost the right of disclaiming the lease (s) . Where the party defrauded, after full know- ledge of the fraud, gave notice that he insisted on the per- (5) Dawes v. Harness, L. R. 10 C. (m) Wright's case, L. R. 7 Ch. 55 : P. 166 ; 44 L. J. C. P. 194 ; see 41 L. J. C. 1. ZrtiriOTjr. J?(';«o)r, 27 L. J. Ex. 141. (j) Co. Lit. 146 a; Cora. Dig'. (<) Deposit Life Ass. v. Ayscoiigh, Election : per cur. Cloiiqh v. L & X. 6 E. & B. 761 ; 26 L. J. Q. B. 29; W. Ry., supra. JBic/ch-y-Flum Co. v. Baynes, L. E. 2 (y) Selwati v. Foaa, 5 M. & W 83- Ex. 324; 36 L. J. Ex. 183. See Se see ante, -p. ii. Scotiish Petroleum Co., L. R. 23 C. D. (z) Tigers v. Fih, 8 CI. & F. 562. 413 ; 51 L. J. 0. 841. CONTRACTS INDUCED BY FRAUD. 323 formance of the contract by a certain time, otherwise he Ch. vi. Sect. II. should consider it at an end on the ground of the delay, he '■ — - was held to have affirmed the contract, though it was not afterwards performed within the time stated («) . — Upon this principle a person who has been induced to take shares in a company by misrepresentations in the prospectus, and after discovering the truth exercises the rights of a shareholder, cannot disclaim the shares and get his name removed from the register : as where he has contracted to sell the shares {b) ; or has accepted dividends (c) ; or has done any other unequi- vocal act of ownership (d). — And the party who has once determined his election to affirm a fraudulent contract cannot afterwards avoid it upon the discovery of additional incidents of fraud; the effects of such discovery being only to cor- roborate the fraud which has been waived and not to revive the right of avoidance (e). But the disaffirmance of a contract in fact may be supported by any grounds of fraud subsequently discovered (/). Delay in determining his election may operate presump- Delay in filsctiou tively in affirmance. " Lapse of time without rescinding will furnish evidence that he has determined to affirm the contract ; and where the lapse of time is great, it probably would in practice be treated as conclusive evidence to show that he has so determined" (p»). "But in every case, if an argument against relief which otherwise would be just is founded upon mere delay, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party, and cause a balance of justice or injustice in (a) Macbryde v. Weekes, 22 Beav. B. D. 685 ; 51 L. J. Q. B. 409 ; Reid 533. V. Stafford Ins., 53 L. J. 0. 351. (b) Brigg^s case, L. B. 1 Eq. 483. (e) Campbell v. Fleming, 1 A. & E. (e) Sheffield's case, 1 Johns. 431 ; 40. 28 L. J. C. 325 ; Clarke v. Dickson, (/) Wrighfs ease, L. E. 7 Ch. 55 ; E. B. & E. 148 ; 27 L. J. Q. B. 223. 41 L. J. C. 1. {d) Sharpleij v. Loitth Si/., L. E. 2 (g) Fer cur. Cloiigh t. L. f N. W. C. I). 663; Cargill v. Boioer, L. K. Sy., supra; adopted in Morrison v. 10 C. D. 502 ; 47 L. J. C. 649 ; York Universal Ins., supra; ante, p. 321, Tramways Co. v. Willows, L. K. 8 Q. n. («). y2 324 CAUSES VITIATING AGRfiEMBXT. Pakt I. taking the one course or the other, so far as relates to the remedy " {h). "Where a contract of insurance is voidable for concealment, if the insurer by delaying his election prevented the insured from insuring elsewhere, he would be held bound by the insurance («) . Upon this principle a shareholder who, having been induced to take shares by the fraud of the com- pany, applies to the Court to have his name removed from the register, should do so promptly, and in case of delay his application will in general be refused {k). But " it is difficult to lay down any general rule as to the time within which objections of this character should be made the ground of repudiation of shares after they have once been discovered ; in every case attention must be paid to the circumstances" {I). A delay pending the hearing and decision of the case of another shareholder in the same position, which is agreed to be taken as a representative case, does not prejudice the party, although a winding up order has intervened {m). — Notice Delay is not imputable against the party defrauded until he has knowledge of the fraud, or at least such means of know- ledge as he wae bound to avail himself of («) . And it lies upon the party against whom the fraud is estabhshed and who charges the delay, to prove the knowledge in the other party and the time of acquiring it (o). Delay is no answer to a substantive action for damages caused by fraud, at law or in equity, except under the Statute of Limitations {p). Eestitution Avoidance of the agreement involves a restitution of the of rights (/() Per cm-. Lindsay Petroleum Co. L. E. 9 Eq. 263 ; 39 L. J. C. 394 ; V. Surd, L. E. 5 P. C. 240 ; McXieU's case, L. E. 10 Eq. 503 ; 39 Ld. Penzance, Erlanger y. New Som- L. J. 0. 822 ; Se Scottish Petroleum brero Co., L. E. 3 Ap. Ca. 1231. Co., L. E. 23 C. D. 413 • 61 L J C ,.,„,.. „ . , , g^j_ (n) Srownc v. McClintock, L. E. 6 H. L. 456 ; Ld. Selborne, Erlanger (i) See Harrison v. Universal Ins. supra. (/c) Ogiloie V. Currie, 37 L. J. C H. L. 99 ; Smith's case, L. E. 2 Cli 604 ; 36 L. J. C. 618 ; Heyman v. European Ry., L. E. 7 Eq. 154. il) Cairns, L. C, Ogilvie v. Currie^ supra; Turner, L. J., Jennings \ Broughton, 5 D. M. & G. 140. (m) Pawls'' s case, L. E. 4 Ch. 497 541 ; Venezuela Sy. y. Kisch, L. E. 2 v. Xew Sombrero Co., L. E. 3 Ad Oa xj T. no. .c.,..-//.'.. ........ T T> o m, 1961 (o) Lindsay Petroleum Co. v. Surd, L. E. 5 P. C. 221 ; Rersc Siver Co. v. Smith, L. E. 2 Ch. 604 ; 36 L. J. C. 18 ; Halsbury, L. C, Arnison v. Smith, L. E. 41 C. D. 370. [p) Pcvk V. Gurney, L. E. 6 H. L. 38 L. J. C. 318 ; see Ashhy's case, 377 ; 43 L. J. C. 19 CONTRACTS INDUCED hY FRAUD. 325 parties to their original rights and property ; it can be Ch. vi. eifeoted only upon this condition, and therefore only so long '- — '- as such restitution is possible {q). " A contract voidable for avoidance fraud cannot be avoided when the other party cannot be 1-^^°^' restored to his status quo. !For a contract cannot be rescinded in part and stand good for the residue. If it cannot be re- scinded in toto, it cannot be rescinded at all ; but the party complaining of the non-performance, or the fraud, must re- sort to an action for damages " {r). Thus if a person induced by fraud to buy goods can return Eetum of the goods, he may recover back the price paid, or if he bought on credit he may refuse payment ; but if he cannot or does not return the goods he must pay the price or their value is). And if a biU is given for goods sold and delivered the buyer cannot avoid the bill on the ground of the sale being fraudulent so long as he retains the goods (i!). — So a Repudia- shareholder who has been induced to take shares by fraud of shares, the company must disclaim the shares and get his name removed from the register [u) . If the shares have been con- verted into new shares or otherwise materially changed so that they cannot be restored in the same state, he cannot avoid his original contract («) . — But if the subject of frau- dulent sale be practically valueless, as a concession from a foreign government that had become forfeited before sale, there is nothing to return, and the sale may be avoided {y) . And upon the sale of a business which is insolvent and which afterwards fails, so that there is nothing to restore, the contract may be avoided, and the money paid as the price recovered back (z). — Where the purchaser of the lease of a house had (?) Ld. Cranwortli, Western Bank 667 ; 24 L. J. 0. P. 53 ; ante, p. 91 ; T. Addie, L. E. 1 So. Ap. 164 ; Waddell v. Blockey, L. H 4 Q. B. Bramwell, L. J., Cltynoveth's case, D. 678; 48 L. J. Q. B. 517. L. B. 15 C. D. 20; see TIrquhart v. (t) Sully y. Frcan, 10 Ex. 535. Macpherson, L. E. 3 Ap. Ca. 831. (u) See ante, p. 322. (r) Fer cttr. Sheffield Nickel Co. v. [x] Clarke ■v. Dickson, supra; TFes- Vnwin, L. R. 2 Q. B. D. 214 ; 46 tern Bank v. Addie, L. K. 1 So. Ap. L. J. Q,. B. 299, citing Clarke v. 164. Dickson, 1 E. B. & E. 148 ; 27 L. J. (y) Phosphate Co. t. Sartmont, Q. B. 223 ; post, p. 326. L. R. 5 0. D. 394. (s) Crompton, J., Clarkey. Dickson, (z) Adam v. Newligging, L. R. 13 supra ; see Harnor v. Grores, 15 0. B. Ap. Ca, 308 ; 57 L. J. C. 1066, 326 CAUSES VITIATING AGREEMENT. PaetI. of land under the contract. Action for fraud. Rights of third taken possession, it was held at common law that he could not afterwards avoid the contract and reclaim the purchase-money, because " the intermediate occupation was a part execution of the agreement, which was incapable of being rescinded ;" and " where a contract is to be rescinded at all, it must be rescinded in toto, and the parties put in statu quo" [a). So where a deposit was paid upon a sale of land with immediate posses- sion, the purchaser having taken possession, was precluded from avoiding the contract and claiming back the deposit (6). — But in equity the mere possession of the property taken under a contract of sale, which is vitiated by fraud or other sufficient cause, the situation of the parties having in no substantial way been altered, does not preclude the purchaser from claiming a rescission of the contract ; and the Court will order a rescission of the sale and a reconveyance of the property upon equitable terms (c). And the Court can give compensation for the possession had, if necessary, by order- ing an account of the rents and profits taken, or the payment of an occupation rent (d). Although from the causes above-mentioned it is no longer open to the party defrauded to avoid the agreement, he may have a remedy for the fraud by action for damages or compen- sation for the loss occasioned by it, provided the fraud amounts to a substantive cause of action against the party who com- mitted it (e) . But in such action he cannot recover any damages which might have been prevented by avoiding the contract when he had the opportunity, if any, of which he did not avail himself; as the loss upon shares which he might have repudiated before they fell in value, or the dete- rioration of goods which he might have returned (/). The avoidance of a fraudulent contract is subject to any V. Sadlers' Co., 10 H. L. C. 404 ; 32 L. J. Q. B. 343. See ante, p. 310. (/) Or/ili'ie V. Ctirrh; 37 L. J. C. 541; JTaddill r. lUockeij, L. R. 4 Q. B. D. 078 ; 48 L. J. Q. B. 517 ; see Arkuright v. Xewbold, L. R. 17 C. D. 317 ; 49 L. J. C. 684 ; Ammn v. Smith, L. R. 41 C. D. 348. (a) Sunt V. Silk, 5 East, 449. (4) Blackburn v. Smith, 2 Ex. 783. (c) Lindsay Petroleum Co. v. Surd, L. R. 5 P. C. 240. (d) See Kmg v. King, 1 M. & K. 442 ; Uetrop. Ry. v. Defries, L. R. 2 Q. B. D. 189. («) Campbell, C. J., Clarke v. Diek- son, supra; Blackburn, J., The Queen CONTRACTS INDUCED BY FRAUD. 327 rights -whioh have been acquired under it by third parties Ch. vi. without notice of the fraud. Thus if a person, having bought goods by means of a fraud upon the seller, resells them to a under third party, who takes them bona fide and without notice of contract. the fraud, the latter acquires a good title to the goods which cannot afterwards be defeated by the original seller (g). " It Sub-pur- cll£LS6r of is quite clear that when a vendee obtains possession of a goods. chattel with the intention by the vendor to transfer both the property and the possession, although the vendee has com- mitted a false and fraudulent misrepresentation in order to effect a contract or to obtain the possession, the property vests in the vendee until the vendor has done some act to disaffirm the transaction ; and the legal consequence is, that if before the disaffirmance 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" {h). The same rule applies in favour of a third party to whom the goods have been pledged, or who has taken a lien or equitable charge upon the goods from the fraudulent buyer, without notice of the fraud («). But a person taking the goods or any interest in them from the fraudulent buyer with notice of the fraud, can acquire no better title than the latter can give, and the seller may avoid the contract and recover back the goods from him at any time {h) . — In the case of the Trustee in bankruptcy of the fraudulent buyer, vesting the property of ruptcy. Ihfijbankrupt in the trustee, the latter acquires no better title than the bankrupt, and the seller may avoid the sale and recover back the goods from the trustee who has taken posses- sion under the bankruptcy ; nor can the trustee claim to retain the goods as having been in the possession of the bankrupt with the consent of the true owner, for the seller never consented to any other possession in the bankrupt Ig) White v. Garden, 10 0. B. 919 ; Moyce v. Newington, L. R. 4 Q. B. D. 20 L. J. C. P. 166. 35 ; 48 L. J. Q. B. 125. (A) Fer cur. KingsfordY. Merry, W (i) Attenhorough v. St. Katharine Ex.577; 25L.J.EX.166; seePeaseY. Docks, L. B. 3 C. P. D. 450. Gloahec, L. E. 1 P. 0. 219; Sabcook (k) Ghiigh v. L. ^ if. W. Rij., L. T. Lawson, L. R. 6 Q. B. D. 284 ; E,. 7 Ex. 26 ; 41 L. J. Ex. 17. 49 L. J. Q. B. 408 ; and see per cur. 328 CAUSES VITIATING AGREEMENT. Paet I. Creditors of com- pany. Goods obtained by false ^ pretences. than in the right of buyer, and he does not resume the position and rights of owner until disaffirmance of the sale (/). — Upon the same principle of saving the intervening rights of third parties, a shareholder who has been induced to take shares by a fraudulent prospectus or representations of the company, cannot repudiate the shares and claim the removal of his name as a shareholder, after creditors have acquired rights against the existing shareholders as appearing on the register {m). Therefore, a shareholder cannot claim to have his name removed after a petition for winding up, whether for a compulsory or voluntary winding up («) ; or after the company have declared themselves insolvent and stopped payment, though no petition for vnnding up has been presented (o). But an action commenced by a share- holder for the removal of his name is not barred by a petition for winding up afterwards presented and an order made upon it pending the action {p). Such shareholder has no remedy for the fraud against the assets of the company, or against the other shareholders and contributories, in the course of the winding up [q). Where the possession of goods is obtained from the owner by a mere fraud without any contract to give a title, the fraudulent possessor can transfer no title to another, and the owner may recover back the goods from a third party, though he bought them without notice of the fraud (r) : as where a person obtained possession of goods under the fraudulent misrepresentation that he was authorized to buy them for a principal, to whom the sale purported to be made, it was held (I) Load T. Green, 15 M. & W. 216 ; see Me Seed, L. R. 3 C. D. 123 ; 45 L. J. B. 120. (m) Cairns, L.C., Tennenty. Glas- gow Bank, L. E. i Ap. Ca. 621. («) Oakes v. Turquand, L. R. 2 H. L. 326 ; 36 L. J. C. 949 ; Eenty. Freehold Land Co., L. R. 3 Ch. 493 ; 37 L. J. C. 603 ; Si07W v. City and County Bank, L. R. 3 C. P. D. 282 ; 47 L. J. C. P. 681 ; Re Scottish Petro- leum Co., L. R. 23 C. D. 413. (o) TennentY. Glasgow Bank, supra; see Llenderson v. Soyal British Bank, 7 E. & B. 356 ; 26 L. J. Q. B. 112 ; Re London and Leeds Bank, 56 L. J. C. 321. [p) Henderson v. Laeon, L. R. 5 Eq. 249 ; Reese River Co. v. Smith, L. R. 4 H. L. 64 ; 39 L. J. C. S49. (q) Burgess's ease, L. R. 15 C. D. 507 ; 49 L. J. C. 541 ; Houldsicorth V. Glasgow Bank, L. R. 5 Ap. Ca. 317. . ()■) Kingsford v. Merry, 1 H. & N. 603; 26 L. J. Ex. 83; Re Reed, supra. CONTRACTS INDUCED BY FRAUD. 329 that there was in fact no contract to support the possession, Ch. vi. and the owner might recover the goods from a transferee to whom the fraudulent possessor had sold or pledged them with- out notice of the fraud (s) ; so where a person by misrepre- senting himself to he a member of a firm to whom the owner of goods intended to sell them obtained delivery to himself, and then pledged them with a third party (t) ; so where a person obtained the possession of goods by taking ad- vantage of a similarity of name and address to misrepre- sent himself to be a person known to the seller, and supposed by him to order the goods and to whom he intended to deliver them [ii). — In the ease of the owner of goods prosecuting and Eestitution obtaining a conviction of the person obtaining the goods by perty. false pretences, it is expressly provided by the statute, 24 & 25 Vict. c. 96, s. 100, that "the property shall be restored to the owner ; " and this enactment is held to apply where the goods have been obtained by means of a fraudulent contract, and even against a buyer from the fraudulent purchaser, who bought without notice of the fraud (x) . The statute applies without an order of the Court for restitution of the property, and though an order is refused (y). {s) Sii/ifins Y. Surton, 26 li. J ."Es.. (ic) Bcntley v. Yilmont, L. E. 12 342 ; ^o«i«.s T. J()W?«-, L. R. 7 H. L. Ap. Ca. 471; 57 L. J. Q. B. 18; 757 ; 44 L. J. Q. B. 169. OYQYm^-^^MoyceY.Newington^ supra; if) Kardman v. Sooth, 1 H. & C, see Lindsay v. Cimdy, supra. And seo 803 ; 32 L. J. Ex. 105. 24 & 25 Vict. o. 96, s. 100 ; ante, p. 76 (m) Lindsay v. Cundy, L. R. 2 Q. B. (y) lb.; Scattergood v. Sylvester, ] o D. 96 ; 46 L. J. Q. B. 233. Q. B. 506. 330 CAUSES VITIATING AGKEEMENT. § 2. Warranties and Contracts of Insurance. PAGE Sales with -warranty 330 Sale of specific goods — warranty of title — warranty of quality — articles sold for particular purpose — articles sold for food — breach of warranty — rescission on breach. 331 Sale of goods by description — implied warranty that goods are merchantable — express warranty of quality — accept- - ance of goods delivered 335 Contracts of marine insurance — nondisclosure of material facts — nondisclosure by agent — matters known to under- writer — materiality of information — insurance by slip — warranty of seaworthiness 338 Fire insurance — alteration in property insured 344 Life insurance — on basis of declaration — indisputable policies — continuance of declaration — declaration by re- ferees 345 Guarantees — nondisclosure of material fact — guarantee of honesty — of debt — guarantee upon basis of declaration . . 347 'P^^''^ I- Contracts may specially provide against misrepresentation, or failure of a representation upon wliicli they are founded, by means of a warranty ; thereby superseding by agreement the general principles of fraud and misrepresentation above stated. And some, contracts from the nature of the subject impliedly extend the ground and effect of representations beyond those general principles ; as contracts of insurance and guarantee. These contracts are here made the subject of separate treatment. Sales with Contracts of sale may expressly or impliedlv warrant the warranty. in . , i. j ^ truth of representations made concerning the subject of sale : as by warranty of the title of the seller or of the quality of the thing sold ; for breach of which the remedy is by action upon the contract independent of any question of fraud. The warranty dispenses with inquiry into the intention or knowledge of the warrantor ; but it leaves that inquiry open in regard to fraud and its consequences (a). It is not (a) See ante, p. 4; post, p. 334, n. (z) ; Tindal, C.J., Margetson v. TTrwht 7 Bing. G05. ■ ' WARRANTIES. 331 essential that the word "■warrant" or any other particular ^^-T,^' expression should be used in order to make a warranty; "any affirmation at the time of a sale is a warranty, provided it appear on evidence to have been so intended" (b). It is a question of fact in each case upon the construction of the words used and of the circumstances, whether such an in- tention is expressed (c). On the other hand even an express warranty in absolute terms may be construed as not applying to a defect which is apparent to the buyer at the time of sale (d). Upon the sale of specific goods there is no warranty of the Sale of title of the seller, or of the quality of the goods, or of any goods, representation made concerning them, in the absence of stipulation to that effect. The maxim of caveat emptor Maxim of applies, which means that unless the buyer requires a war- emptor. ranty of such matters he takes aU. risk upon himself ; and he has no remedy against the seller for representations which turn out to be untrue, unless he can show them to be not only untrue, but also fraudulent according to the doctrines above stated (e). But as regards warranty of title, the above general rule is Warranty subject to many exceptions arising from the circumstances of the sale (/). "Usage of trade would be sufficient to raise the inference ; and without proof of such usage the nature of the trade may be enough to lead to the conclusion that the person carrying it on must be understood to engage that a buyer shall enjoy that which he buys, as ' against aU persons" {g). Accordingly "if articles are bought in a shop, professedly carried on for the sale of goods, the shopkeeper must be considered as warranting that those who purchase wUl have a good title. In such a case the vendor sells ' as his own,' and that is equivalent to a warranty" [h). In the case (5) BuUer, J., FasUy v. Freiman, Huth, 14 M. & W. 664 ; Morley v. 3 T. E. 57. Attenborough, 3 Ex. 510. [e] Power v. Barham, 4 A. & E. (/) Campbell, 0. J., Simms v. Hi; StucleijY. Bailey, I'B-.&.G.iOo; Marryat, 17 Q. B. 281; 20 L. J. 31 L. J. Ex. 483. Q. B. 458. {(J) See ante, -p. 301, n. (<). {y) Per eur. Morley y. Attenborough, (e) Littledale, J., Early v. Garret, 3 Ex. 513. 9 B. & C. 932 ; per cur. in Ormrod v. (A) lo. 613 ; Eichholz v. Bannister, 332 CAUSES VITIATING AGEEBMENT. Paeti. of an ordinary pledge the pledgor impliedly warrants that the property is his own or that he has the authority of the owner to pledge it ; and the undertaking of the pledgee to deliver it back to the pledgor is subject to the latter having the title warranted ; and if that fails the pledgee may restore the property to the true owner (/). But a pawnbroker selling an article by auction as a forfeited pledge is taken to represent only that the article was pledged to him and is irredeemable, and his warranty is limited to that effect (g'). And a sale of goods seized under an execution is held to import no warranty of title (h). — "If the vendor of a chattel at the time of the sale either by words affirms that he is the owner, or by his conduct give the purchaser to understand that he is such owner, then it forms part of the contract, and if it turn out that in fact he is not the owner, the considera- tion fails, and the money paid by the purchaser can be re- covered back" {i). But if there is no warranty of title, some circumstances must be shown to entitle the buyer to recover for money had and received (/ ) . Warranty Upon a Sale of specific goods, there is in general no implied warranty that the article sold is of a particular quality, or will answer a particular purpose {k). Thus upon the sale of a horse there is no warranty of soundness or capacity, unless some representation was made that can be construed as a warranty (l). And upon the sale of an article of a specifically defined kind, as the "Patent smoke consuming furnace " of a certain raventor, if an article of the kiad is supplied, there is no warranty that it will answer 17 C. B. N. S. 708 ; 34 L. J. C. P. {j) Ferciir. Morlei/v. Attmiorough, 105. 3 Ex. 514 ; see ante, p. 86. (/) Cheeseman-v.Exall, 6 Ex. 344; (k) Fer air. Morleyy.Attmborough, per cur. Singer Co. v. Clark, L. R. 5 3 Ex. 513 ; per cur. Jones v. Just, Ex. D. 42 ; 49 L. J. Ex. 226 ; see L. R. 3 Q. B. 202 ; 37 L. J. Q. B. Sogers v. Lambert, (1891) 1 Q. B. 95; Cookburn, C.J. , &nia v. ifu^/ies, 318 ; 60 L. J. Q. B. 187. L. R. 6 Q. B. 603 ; 40 L. J. Q. B. [ff) Morley v. Attenborough, supra. 225. (A) Chapman v. Speller, 14 Q. B. {I) Per cur. Parkinson v. lee, 2 621 ; see Bagueley v. JJawley, L. R. East, 323 ; Littledale, J., Early \. 2 0. P. 625 ; 36 L. J. C. P. 328. Gairet, 9 B. & C. 932. As to un- (i) Erie, C. J., Eichhok T.Bannis- soundness, see Parke, B., Xiddellv. ter, 17 C. B. N. S. 708; 34 L. J. Murnard, 9 M. & W. 669 ; Sohjday^r. C. P. 107. Morgan, 1 E. &E. 1 ; 28 L. J. Q. B. 9. WARRANTIES. 833 the purpose described ; of wHcli the buyer takes the risk (in) . Ch. vi. Also as a general rule if a person contracts for the hire or '- — ^ use of a specific article, there is no implied warranty by the owner that it is fit for the purpose for which it is required ; he undertakes to deliver it in the state agreed for ; but the hirer, obtaining the thing agreed for, takes the risk of its fitness and efficiency for his purpose : as in the case of a person undertaking to perform a certain Yoyage with a certain vessel, which, by reason of the state of its engines, unknown to both parties, was unfit for the voyage (w). — But if a Articles contract be made to supply an article for a required purpose, particular that purpose being the essential matter of the contract, the seller is then bound to supply an article reasonably fit for the purpose, and is considered as warranting that it is so (o). Accordingly, the maker and seller of an article of general use, as a barge, or a carriage, or saddle, or the like, impliedly warrants it to be reasonably fit for the ordinary and proper use of such article {p). Nor is there any exception as to latent and undiscoverable defects that render it unsuitable for such purpose : as where a carriage builder supplied to a customer a pole for use in a carriage which broke in use, though it did not appear that he had been negligent in making it, or that there was any particular defect (17). And upon this principle a person who supplied a stand at a race- course for the use of persons who paid for admission was held impliedly to warrant to them that the stand was reasonably fit for their use (;-). A dealer in articles of food, as a butcher, impliedly war- Articles rants that the articles supplied by him to customers are food. (m) Chanter v. SopMns, 4 M. & W. 202 ; 37 L. J. Q. B. 95. 399; Prideaux v. Burnett, 1 C. B. {p) LaingT. Fidgeon,&T&xmt.Wi; N. S. 613; see Camao-v. Warriner, 1 Shepherds. Pyius, 3 M. & G. 868; C. B. 367. Parke, B., Sutton v. Temple, 12 M. & [n) Robertson v. Amazon Tug Co., W. 64. L. &. 7 Q. B. D. 598 ; 51 L. J. Q. B. (. 455; 46 L. J. Q. B. 305. Morice, L. E. 10 C. P. 58 ; 44 L. J. {d) The Glenfruiu, L. E. 10 Adm. C. P. 10 ; Clapham v. Langton. 5 B. 103 ; 54 L. J. Adm. 49 ; Cargo ex & S. 729 ; 34 L. J. Q. B. 46 ; Quebec Laertes, L. E. 12 Adm. 187 ; 56 L. J. Ins. T. Commercial Bank,- Jj. E. 3 P. Adm. 108. 344 CAUSES VITIATING AGREEMENT. PaetI. ence in this respect whether at the time of effecting the policy the ship is at sea, or whether the ship is then in port and undergoing repairs in preparation for the intended voyage (e). But the insurer is not liahle for loss or damage attributable in fact to the unseaworthiness or other inherent vice of the ship or subject of insurance, and not to the perils insured against (/) ; nor for loss happening by perils insured against, if caused by the owner knowingly sending the ship to sea in an unseaworthy condition (g) . But he is liable for a loss caused by a peril insured against, as the explosion of the boiler of a steamship, though consequent upon its unsea- worthy condition, if it was not known to the insured (h) . Insurance Upon the same principles in effecting insurances upon fire. property against fire, it is the duty of the insured to com- municate to the insurer all material facts within his know- ledge concerning the risk ; and it is an implied condition of the contract that the description of the property given by the insured is true and complete. This condition is usually expressly declared in the policy to be the basis of the con- tract («). — The test of materiality is whether the error or omission of description is such as would vary the premium required {F). But if a particular description or represen- tation is expressly made the basis of the contract, that con- dition must be satisfied, whether the deviation be in fact material or not(/). And in such case it is sufficient if that condition be satisfied ; for an express condition excludes any implication beyond its terms (?») . Upon a re-insurance it was held material to disclose that the owner of the property (e) Gibsonv. Small, supra; Dudgeon ^ Col. Ins., 6 Q. B. D. 51 ; 50 L. J. V. Fembroke, L. R. 2 Ap. Ca. 284'; 46 0. P. 41 ; see Hamilton v. Thames Ins., L. J. Q. B. 409. L. R. 17 Q. B. D. 195. (/) Ilixon V. Sadler, 5 M. & W. (t) £iife v. Tiinin; 6 Taunt. 338 ; 405 ; 8 ib. 895 ; Fawciis v. Snrsjield, see Sillemx. Thornton, 3 E. &B 866 • 6 E. &B. 192; 25L. J. Q. B. 249; 23 L. J. Q. B. 362. Dudgeon v. Pembrolce, supra; Nugent (k) See Forbes' claim, L. R. 19 Eq v. Smith, L. R. I 0. P. D. 423 ; 46 485 ; 44 L. J. C. 761. L. J. C. P. 697. {I) Ld. Eldon, Newcastle Fire Ins. {g) Thompson v. Hopper, 6 E. & B. y. Macmorran, 3 Bow, 255. 937 ; 27 L. J. Q. B. 441. („,) Daxendale v. Harvey, 4 H. & (A) West India Tel. Co. v. Home N. 450 ; 28 L. J. Ex. 236. CONTRACTS OF INSTJRAKCE. 345 insured had before had several fires, in all of which he was Ch. vi. Sect. II. insured to a large amount (w). An alteration in the subject of insurance during the cur- Alteration rency of a policy does not affect the policy otherwise than that iSsured!'^ ^ if it in fact occasions the loss the policy does not apply ; for the loss is then due to a risk not insured, and in such case it would require to be proved clearly that the loss was occa- sioned exclusively by the risk insured (o). But it is usually made an express condition of the policy that if any alteration be made by which the risk is increased, or any other kind of alteration, the same must be notified to and allowed by the insurer, otherwise the policy will be void ; in which case any alteration of the kind stipulated, not duly notified and allowed, would avoid the policy, whether in the event it caused a loss or not ; and any implied condition respecting alterations is excluded by the express terms (jtj). In life insurance, as in marine and fire insurance, the Lifeiu- principle applies, that all material facts must be disclosed and represented truly to the underwriter {q). But according to Declara- the ordinary practice of life insurance the insured is required basis of to make and sign a written declaration giving certain specified information concerning the life insured, and it is expressly stipulated that such declaration is true and is to be taken as the basis of the contract ; the effect of which is that if there is anything untrue in that declaration, whether to the knowledge of the insured or not, and whether material or not, it avoids the contract (r). On the other hand, such («) New York Sowery Ins. v. New Eeid, 6 M. & G-. 1. York Ins., 17 Wend. 359, cited by (?) Bayley, J., Litidenau v. Des- the Court in lonides v. lender, L. R. borough, 8 B. & C. 686 ; Campbell, 9 Q. E. 538. C. J., Wheelton v. Hardisty, 8 E. & (o) Willes, J., Stokes v. Cox, 1 H. B. 232 ; 26 L. J. Q. B. 276 ; per cur. & N. 5S3 ; 26 L. J. Ex. 114 ; Sillem Jones v. Provincial Ins., 3 C. B. N S V. Thornton, 3 E. & B. 866; 23 L. J. 86; 26 L. J. C. P. 274; Jessel, M.R., Q. B. 362. london Ass. v. Mansel, L. K. 11 C. D. (p) Barrett v. Jermy, 3 Ex. 535 ; 367; 48L. J. C. 331; Ld. Blackburn, Glen V. lewis, 8 Ex. 617 ; 22 L. J. Thomson v. Weems, L. E. 9 Ap Ca Ex. 228 ; Stokes v. Cox, 1 H. & N. 684. 533; 26 L. J. Ex. 113; as to the ()■) Ld. Blackburn, Thomson v. materiality of alterations, see Shaiv Weems, L. R. 9 Ap. Ca. 671 ; Ander- M.Robberds, 6 A. & E. 75 ; Pimy. son v. Fitzgerald, 4 H. L. C. 484; Uisurance. 346 CAUSES VITIATING AGREEMENT. PaetI. deolaration expressly defines and limits by agreement the rights of the insurer as to the communication and materiality of facts ; and excludes any effect upon the contract from misrepresentation or non-disclosure of a matter not specified in the declaration, unless fraudulent (s). Thus where the policy was construed to provide only against intentional mis- statements, the effect as a condition was limited accordingly, and the policy was not voidable for untrue statements, unless Indisput- wilful and designed (t). — Where an insurance company pub- policies, lished a prospectus of their terms stating that all insurances effected with them should be indisputable except in case of fraud, and an insurance was made upon the faith of the prospectus, but without incorporating it ; it was held upon equitable grounds that the company were precluded from disputing the policy upon the ground of a merely untrue representation in the declaration upon which it was based, though the policy was expressly made conditional upon the truth of the deolaration (ii). Fraud would vitiate it not- withstanding the deolaration is satisfied, upon the principles Contmuing applicable to contracts induced by fraud («). — The declaration deciara- agreed upon as basis of the contract is taken as continuing up to the time of executing the policy, so that any inter- mediate change of circumstances rendering it untrue must be communicated ; as where the declaration gave the name of the latest medical attendant of the insured, and before com- .pleting the policy he consulted another medical attendant whose name was not given, it was held that the declaration had become untrue and avoided the contract (y). And where the deolaration stated that the insured was in good health, and before payment of the premium, when the insurance was to Cazenove v. British Equit. Ass., 6 C. 25 L. J. Ex. 129 ; see per mr. SeisY. B. N. S. 437 ; 28 L. J. C. P. 259 ; Scottish Equitable Ass., 2 H. & N. 19 ■ Macdonald v. Law Union Ins., L. R. 26 L. J. Ex. 280 ; and see Wlnellon 9 a. B. 328; 43 L. J. Q. B. 131. v. Sardisty, 8 E. & B. 232; 27 L. J. (s) Jones Y: Provincial Ins., 3 0. B. Q. B. 241. N. S. 65 ; 26 L. J. C. P. 27. (x) TTaimmght y . Bland, 1 M. & (t) Fou-kes Y. Manchester Ass., 3 B. W. 32. & S. 917 ; 32 L. J. Q. B. 153 ; ante, {y) British Equitable Ins. y. G. W. p. 194. By., 38 L. J. C. 314, cited ante, (u) froorf V. i)««)T!s, 11 Ex. 493 ; p. 312. CONTKACTS OF INSURANCE. 347 commence, he fell into tad health, it was held that the insurer Ch. vi. ... Skct II might refuse to accept the premium or to issue a policy (z' — Where a person, proposing to insure the life of another, Deciara- refers the insurer to that person or to others for the declara- referees. tion required, the persons thus referred to are not therehy constituted his agents in making the declaration ; and he is not affected hy false or fraudulent statements therein made without his knowledge («) ; unless the policy is expressly made conditional upon the truth of the declaration (b) . Guarantees are contracts of insurance of the capacity, or Guaran- honesty, or solvency of a person, either generally or with reference to some particular employment, debt or transaction. -But it is "not a correct proposition that the same rule pre- Yails in case of guarantees as in insurances on either ships or lives, in which it is a settled rule that all the material cir- cumstances known to the insured are to be disclosed, though there should be no fraud in the concealment" (c). The Non-dis- avoidance of a contract of guarantee by the no n- disclosure of material a material fact depends in each case upon whether, having regard to the nature of the transaction and the relation of the parties, the fact not disclosed is impliedly represented not to exist (d). Thus in the case of a bank taking a guarantee for the cash account of a customer, there is no misrepresenta- tion impKed in the bank not disclosing the fact of the customer having overdrawn his account, as it might reason- ably be supposed under the circumstances that he had done so (e). But where a bank takes a guarantee for continuing an agent in their employment, the non-disclosure of the fact of his having already misconducted himself in the employ- (z) Canning v. Farquhar, L. R. 16 (c) Fer cur. North Sritish Ins. v. Q. B. D. 727 ; 55 L. J. Q. B. 225. Lloyd, 10 Ex. 523 ; 24 L. J. Ex. 14 ; (a) Muchnan v. Fernie, 3 M. & W. see Truro, L. C, Owen v. Soman, 3 505 ; Wheelton v. Hardisty, 8 E. & B. Mac. & G. 378. 232 ; 26 L. J. Q. B. 265 ; see ante, [d] Eailton v. Mathews, 10 01. & p. 320. F- 934 ; Blackburn, J., Lee v. Jones, (b) Everett v. Bcsborovgh, 5 Bing-. 17 0. B. N. S. 600 ; 34 L. J. C. P. 603 ; Rawlins t. Beshorough, 2 Moo. 139; Fhilnps v. Foxall, L. E. 7 Q. B. & Rob. 328 ; see Towle v. National 679 ; see ante, p. 299. Guardian Ass., 30 L. J. C. 900. (e) Samilton v. Watson, 12 CI. & F. 934. 348 CAUSES VITIATING AGREEMENT. Pabt I. ment is an implied representation that he is trustworthy, as it would be presumed that they would not continue to employ Guarantee an agent whom they knew to be untrustworthy (/). — So, generally, the employment of a person in a position of trust under a guarantee of his honesty imports a representation to the surety that the person is honest, so far as the employer knows, and the non-disclosure of a fact materially affecting his honesty would avoid the guarantee ; as in taking a guarantee of an agent whose duties are to receive and account for money, without disclosing the fact that he was then in arrear in his accounting to a. large amount ((/). And in the case of a continuing guarantee, if the employer after dis- covering that the servant or agent is guilty of dishonesty continues the employment, without the knowledge and eon- sent of the surety, the latter would be discharged of sub- sequent liability ; for the surety upon learning the dishonesty would be entitled to put a stop to the guarantee {h) . Guarantee Where a guarantee was given for a certain sum upon the representation that the whole sum was then advanced to the debtor upon the security of the guarantee, when in fact a large part of it was retained by the creditor in payment of a prior debt, it was held to be a fraud upon the surety entitling him to avoid the guarantee {i). So where a guarantee was given for the price of goods sold, and it was agreed between the buyer and seller that the sum stated in the guarantee should be sufficient to cover a prior debt besides the price of the goods (A). But upon taking a renewed guarantee for a debt, the non-disclosure of the circumstance that the debt had been previously guaranteed, and that the previous surety was withdrawing his suretyship, was held not to be fraudulent against the new surety (/). (/) Smith T. Bank of Scotland, 1 C. 515 ; Durham v. Fowler, L. E 22 Dow, 272. Q. B. D. 394 ; 58 L. J. Q. B. 246. (y) Zee v. Jones, 17 0. B. N. S. (j) Stone v. Compton, 5 Bing. N C 482; 34 L. J. C. P. 131. 142. (A) Phillips V. Foxall, supra; San- (k) Fidcock v. Bishop, 3 B. & C. derson v. Aston, L. E. 8 Ex. 73 ; 42 605. L. J. Ex. 64 ; see Ld. Eldon, Railton (?) North British Ins. v. Zloud 10 V. Mathews, 10 CI. & P. 943 ; Burgess Ex. 6J3 ; 24 L J Ex 14 Y. Eve, h. E. 13 Eq. 450 ; 41 L. J. CONTRACTS OF INSURANCE. 3i9 A guarantee may be given upon the express condition that Cn. vi. a full and true declaration is made of all the circumstances 1 , . n 1 i / • i.1 Guarantee required to be known as the basis of the contract, (as is the upon basis general practice in policies of life insurance,) in which case tioQ, a misrepresentation or non-disclosure within the condition avoids the guarantee independently of fraud (?») . Under a guarantee upon such condition, it was stated in the required declaration that the person guaranteed, a tax gatherer, would render accounts weekly, such being then in fact his duty ; and it was held that there was no misrepresentation sufficient to avoid the guarantee by reason of the fact that such mode of accounting was not subsequently carried out; and that there was no warranty to that effect (n). (m) Totole y. National his., 3 Giff. (w) Toioley. National Ins., supra; 42: 30 L.- J. C. 900; see ante, p. Senhamv. United Guarantee Co., 1 'Ex. 345. 744 ; 21 L. J. Ex. 317 ; see Durham V. FowUr, supra. 350 CAUSES VITIATING AGREEMENT. Sect. III.— DXJBESS AND UNDUE INFLUENCE. PAOE Agreements induced by duress — duress of the person — threats 350 Duress of goods — money obtained by duress of goods — legal restraint of goods 351 Duress by third party — on third party— contract by agent induced by duress on principal 353 Agreements induced by undue influence"; — agreement with expectant heir — Kale of reversion — agreement in fraud of ancestor — confirmation of agreements with heir or re- versioner 354 Agreements with persons in fiduciary relation : — trustees — solicitors — directors of company 357 Agreements with parent or guardian — agreements under special relations of influence 359 Agree- An agreement apparently complete and sufficient to create Sliced by' ^ contract may be vitiated by duress, that is, where one party duress. ^^^ heeu induced to consent by fear imposed by the violence or threats of the other party. An agreement induced by duress, like an agreement induced by fraud, is not absolutely void, but voidable only at the election of the party intimidated (a). If the latter after the duress is removed voluntarily acts upon the agreement, he thereby confirms it and precludes himself from afterwards avoiding it (6). In an action upon a contract the defence that it was procured by duress must be specially pleaded (c). Duress of The duress recognized in law, as producing a sufficient degree of fear to vitiate an agreement, may consist in actual violence to the person, or in threats thereof {d) . — Illegal im- prisonment constitutes duress of the former kind ; and "every (a) 2 Inst. 482; as to election, see (c) TFhelpdale's case, 5 Co. 119 a; ante, p. 320. Order XIX. r. 15 ; seeffeap r. Harris, (A) Ormes v. Beadel, 2 De G-. F. & L. R. 2 Q. B. D. 630 ; 46 L. J. Q. B. J. 333 ; 30 L. J. C. 1 ; see Hemeryy. 761. Worssam, 51 L. J. 0. 669. {d) 1 Blackst. Com. 131. the person. DURESS. 351 restraint of the liberty of a freeman is an imprisonment, Ch. vi. . Sect III although he be not within the walls of any common prison." '- — ^ But legal imprisonment will not constitute duress. "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 imprison- ment ; for it is not accounted in law duress of imprisonment, but where either the imprisonment or the duress that is offered in the prison or at large is tortious and unlawful, for executio juris non habet injuriam" {e). The abuse of legal imprisonment is for this purpose equivalent to illegal imprison- ment ; as where a writ of cainas for a debt was used to compel the defendant by duress of the imprisonment to give up certain goods, it was held that the taking of the goods was wrongful and the owner might recover them back in an action without demand (/). Duress may also consist of threats of personal violence. Duress ty But "the fear must concern the safety of the person of a * ^^'^' man ; and not his houses or goods, because he may recover the same, or damages to the value, without any corporal hurt. Again, if the fear do concern the person, yet it must not be a vain fear, but such as may befal a constant man. Fear of imprisonment is sufficient, for the law hath a special regard to the safety and liberty of a man" {g). But it seems that the fear must be estimated with regard to the age, sex and condition of the person threatened, so far as known to the party using the threats {h). " An agreement is not void because made under duress of Duress of goods. There is no distinction in this respect between a deed and an agreement not under seal ; and with regard to the former the law is laid down, and the distinction pointed out between duress of, or menace to the person and duress of (e) 2 Inst. 482. 140. (/) Grainger Y. Hill, i'Bi-ag.'S.C. (h) Butt, J., Scott y. Sebright, L. 212 ; see Poivell v. Eoyland, 6 Ex. 67. E. 12 P. D. 21 ; 56 L. J. P. D. 12 ; [g) Co. Litt. 2.53 b; 1 Inst. 483 ; see Latter ¥. Braddell, 50 L. J. C. P. Bracton, L.2,fo. 164; EUenborough, 448 ; Cooper v. Crane, (1891) P. 369. C. J., The King v. Southerton, 6 East, 352 CAUSES VITIATING AGREEMENT. PaktI. goods (i). The former is a constraining force wMch 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 injured does not deprive any one of his free agency who possesses that ordi- nary degree of firmness which the law requires all to exert" (k). In the case of a distress taken for rent, upon which the tenant agreed in consideration of a withdrawal of the distress to pay the sum claimed ; it was held that he could not avoid the agreement upon the ground that the claim was in excess of the rent due and that he was induced to agree in order to prevent the sale of his goods (/). Money But where money is paid to release goods or property from ty duress duress without any other "consideration, it may be recovered ^°° ^' back as a debt, as having been obtained by compulsion (»;). " 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 aU, especially if it be paid under protest, that money can be recovered back ; not on the ground of duress, because the law is clear, that in order to avoid a contract by reason of duress, it must be duress of a man's person, not of his goods («) ; but the ground is, that it is not a voluntary payment. If my goods have been wrongfully detained, and I pay money simply to 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 agreement to pay a certain sum of money and to receive them back, that cannot be avoided on the ground of duress" (o). Thus where the Commissioners of Excise had seized goods for the purpose of condemnation, and the owner, in conside- (i) 2In8t.483; Sheppard's Touohst. 52 L. J. Q. B. 435. 61- (k) Sheppard's Touchst. 61; see (k) Per cur. Skeatev. Beale, 11 A. Vin. Abr. Duress, (Bl 3- 1 Roll & E. 990. Abr. 687. ' ^ ^' ' (I) Slceatey.Bmle supra. („) Parke, B., AtleeY. BacJchouse, (m) See ante, p. 77 ; see Oreat v. 3 M. & W. 650 ; per cur. AshmoleY Dmkett, L. E. H Q. B. D. 275 ; Wainwright, 2 Q. B. 846 DURESS. 353 ration of a return of the ffoods and the relinquishment of the Ch. vi. , . . Sect III 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 consideration, and the duress of the goods formed no ground for avoiding the agreement {p). — Money paid to redeem goods from legal restraiat, as where Legal re- they have been seized by legal process and are in the custody goods. of the law, is not recoverable as a payment under duress (§■) ; also bills or securities given to redeem the goods under such circumstances are valid (r). The duress must be the act of the party himself, or imposed Duress ty with his knowledge and taken advantage of by him, for the party. purpose of obtaining the agreement ; duress by a third person would not avoid a contract made with a party who is not cognizant of it(s). — Nor can a contract be avoided on the Duress ground that it was obtained by duress imposed on a third party. party. Thus a bond given by a surety for the debt of another, in order to obtain his release from imprisonment, is valid, although the imprisonment was illegal; "for none shall avoid his own bond for the improvement or danger of any other than of himself only" (t). But a simple agreement made in consideration merely of discharging a person from arrest, where the arrest is illegal and without any reasonable and probable cause, is void for want of such a consideration as can be recognized in law (m). — But it seems that a person may avoid his deed if obtained by duress imposed on his parent, or wife, or child, as well as if the duress had been on his own person (x) . A contract made by an agent of the party sufEerins- the Contract 1 • 1 i 7i n PI- • • 1 • ty agent duress m order to remove the duress irom his principal is induced by voidable. Thus where in the course of proceedings in lunacy principal! (p) Atlee V. Backhouse, supra. East, 416 (a). (q) Seeante, p. 79 ; Green v. Duckett, (m) iSinith v. Monteith, 13 M. & W. supra. 427. (r) Ziverpool Credit Co. t. Hunter, {x) 1 EoUe, Abr. 687 ; Bacon's L. E.. 3 Ch. 479 ; 37 L. J. C. 386. Maxims, Tracts, 86 ; see Williams v. (s) 1 BoUe, Abr. 688. Saylet/, L. R. 1 H. L. 200 ; 35 L. J. (t) Suscomie V. Standing, Cro. Jao. C. 717. 187 ; and see Pole y. SarroUn, 9 i- A A 354 CAUSES VITIATING AGEEEMENT. PabtI. against a person who was confined in an asylum, her counsel made an agreement that in consideration of her release from restraint she would give up certain deeds ; it was held that she might repudiate the agreement as induced hy duress ; the Court saying, " If her counsel acted for her, helieving her of sound mind, from the same fear of inconvenience and disease as likely to arise from confinement which afEected the mind of their principal, their proceeding ought to be considered as enforced by the same duress " (y). TJndue The Court of Chancery, besides a concurrent iurisdietion influence. . . .... in cases of legal duress, exercised an extended jurisdiction to grant relief in various cases of pressure which did not amount to duress at common law. Agreements between persons in certain relative positions are treated in equity as presump- tively made under an undue influence of one party upon the will of the other ; " and when the relative position of the parties is such as prima facie to raise this presumption the transaction cannot stand, unless the person claiming the benefit of it is able to repel the presumption by contrary evidence, proving it to have been in point of fact fair, just, and reasonable " (s) . :^sreement ^^ agreement with a person in the position of an expectant peotant heir, upon the credit of his expectancy, whether the property be actually charged or not, raises a presumption of undue influence and advantage, which the party claiming the benefit must be prepared to rebut («). And "the phrase expectant heir (with reference to the doctrine in question) is u^ed as including every one who has either a vested remainder or a contingent remainder in a family property, including a remainder in a portion as well as a remainder in an estate, and every one who has the hope of succession to the property of an ancestor, either by reason of his being the heir apparent or presumptive, or by reason merely of the expectation of a [y) Cummmg v. Ince, 11 Q. B. 112. field v. Janssen, 2 Ves. sen. 157 (z) Selborne, L. C, Aylesford v. {a) Chesterfield v. Janssen, 2 Ves. Morris, L. E. 8 Oh. 489 ; 42 L. J. C. sen. 125 ; 1 White &T L C 6tlied 648, citing Hardwicke, L. C, Chester- 624 ; AxjUsford v. Morris, 'supra reversion. UNDUE IKFLUENCE. 355 devise or bequest on account of the supposed or presumed Ch. vi. affection of his ancestor or relative. More than this, the ^ — '- doctrine as to expectant heirs has been extended to all reversioners and remaindermen " (6) . Thus, where a person entitled to settled estates in remainder upon the death of his father, but having no present property, borrowed money upon bills at a rate of interest and discount exceeding sixty per cent, from a money lender who knew his circumstances ; the Court, holding that the transaction was prima facie induced by the necessity of his position and the credit of his expectations, required the lender to prove that it was fair and reasonable ; and on failure of such proof decreed the bills to be deKvered up on payment of the sums advanced with interest at the rate of five per cent, (c) . In the case of contracts for the sale or charge of rever- Sale of sionary interests Courts of equity applied the above doctrine by means of a strict rule, imposing upon the purchaser the burden of proving that he gave full value ; upon failure of which they held the property to be redeemable by the rever- sioner upon repayment of the consideration with interest (d) . The purchaser at a sale by auction was excepted from this rule, because the price at an auction was taken as evidence of the full market value (e). — This rule was altered by statute 31 Yict. c. 4, the "Act to amend the law relating to Sales of Reversions," enacting, by sect. 1, that " No purchase, made bond fide and without fraud or unfair dealing, of any rever- sionary interest in real or personal estate shall hereafter be opened or set aside merely on the ground, of undervalue ; " and by sect. 2, "The word 'purchase' in this Act shall include every kind of contract, conveyance, or assignment under or by which any beneficial interest in any kind of property may be acquired." — The statute is restricted to the (b) Jessel, M. E., Beynon r. Cool:, L. J. 0. 18 ; St. Albijn \. Harding, Jj. B. 10 Ch. 391 ; Miller v. Cook, 27 Beav. 11; AUborough v. Trye, 7 L. E. 10 Eq. 641 ; 40 L. J. C. 11. CI. & F. 436 ; Edwards v. Burt, 2 (c) Aylesford v. Morris, supra ; D. M. & G. 55 ; 22 L. J. C. 215 ; Beynon v. Cooh, supra. Slater's Trusts, L. E. 11 C. D. 227 ; (d) Peacock v. Evans, 16 Ves. 512 ; 48 L. J. C. 473. Gowland v. Be Faria, 17 Ves. 20; {e) Shelley -y. Nash, 3 Madd. 232; Bromley v. Smith, 26 Beav. 644 ; 29 see Fox v. Wright, 6 Madd. 111. A a2 356 CAUSES VITIAIING AGREEMENT. PaetI. ground of undervalue, and has not altered the general doctrine of the Court as to granting relief on other grounds ; as to which undervalue still remains an important considera- TJsurious tion though no longer in itself sufficient (/). — A similar consideration applies to the repeal of the usury laws ; " that one effect of such repeal was to bring into operation to a greater extent than formerly that principle of the Court which prevented any oppressive bargain " (ff) . Agreement Fraud, except as a presumption from the use of influence, ancestor, is not a necessary condition of relief (h). But agreements with expectant heirs may also be void upon the ground that they operate in fraud of those persons from whom the expectations are derived. The transaction being concealed from the ancestor or other present owner of the property, he may thereby be misled and induced to dispose of it in a manner resulting for the benefit of a stranger, instead of the person intended ; and the agreement would then be void as operating in fraud of a third party («). Upon this principle contracts of marriage involving the disposal of expected pro- perty and concealed from the parents or others having the disposal of it may be set aside (A-) . So with a loan advanced upon extortionate interest to a person having no property of his own, upon the sole credit and with the object that his parents or relations would be compelled to pay it to avoid exposure and bankruptcy (l) . But if the transaction was in fact known to the ancestor or parent, it cannot be avoided as being a fraud upon him ()«). Confinna- The expectant heir or reversioner, after coming into pos- agreement. (/) Selborne, L. C, Aylesford v. (i) Osmond v. Fitzroy, 3 P. "Wms. Morris, L. R. 8 Oh. 490 ; 42 L. J. C. 129 ; Hardwicke, L. C, Chesterfield 548 ; TyUvY. Yates, L. K. 6 Ch. 669 ; v. Janssen, 2 Ves. sen. 157 ; Selborne, 40 L. J. C. 768 ; Judd v. Green, 45 L. C, Aylesford v. .Vorris, L. E. 8 L. J. G. 108 ; O'Rorke v. Bolinbroke, Ch. 492 ; Heap v. Jlarris, L. R. 2 Q. L. R. 2 Ap. Ca. 834 ; Fry v. Zaiie, B. T>. 630 ; 46 L. J Q B 761 L. R. 40 C. T>. 312; 58 L. J. C. 113. {k) Woodhouse v. Shepley, 2 Atk. (y) Stua,it,Y.-G., Harrettv. Hart- 635; see Cock v. Richards, 10 Ves. ley, L. R. 2 Eq. 795 ; Miller v. Cook, 437 ; Turton v. Benson, 1 P. Wms L. R. 10 Eq. 641 ; 40 L. J. C. 11 ; 496. Croft T. Graham, 2 D. J. & S. 155. (1) Nevlll v. Snelliny, L. R. 15 0. (A) Selborne, L. C, Aylesford v. D. 679; 49 L. J. C. 777. Morris, L. R. 8 Ch. 491 ; Bowes v. (m) Kina v. S'aiiiht 2 M & K "--,3 V. &B. 117. 456; 3 CI. &F. 218. UNDUE INFLUENCE. 357 session and after the pressure has been removed and with Cn. vi. full knowledge of his rights, may confirm the contract and bar the claim to relief. Where a person gave a post obit bond contingent upon his expectations under the will of a relation, and after acquiring the property gave another bond in abso- lute terms upon the cancellation of the former, he was held to have affirmed the origiaal transaction and barred all claim to relief (w). Delay in seeking relief cannot be imputed as an objection so long as the property remains in expectancy only and the consequent state of pressure continues (o). But after the property has come iato possession, delay imports acquiescence and operates in confirmation of the transaction and in bar of relief (p). The principle applies in all cases of persons dealing with Agreement others to whom they stand in a recognized fiduciary relation ; persons in as trustees vdth beneficiaries, solicitors with clients, parents reiationT with children, guardians with wards, and the like ; in which cases the presumption of undue influence arises in law, and it lies upon such a person to prove that he took no advantage of his position or influence {q). — " There is no rule of law Trustee, which says that a trustee shall not buy trust property from a cestui que trust ; but it is a well-known doctrine of equity, that if a transaction of that kind is challenged in proper time, a Court of equity will examine into it, and will throw upon the trustee the onus of proving that he gave fuU value and that all information was laid before the cestui que trust when it was sold " (r). Accordingly, a bargain between the trustee of a legacy and the legatee for payment of a less sum than the legacy in composition of an unfounded dispute as to his [n) Chesterfield v. Jansmn, 2 Vea. 735. sen. 125 ; 1 White & T. L. C. 483. (?) Brougham, L. C, Bunter v. (o) Gowlandr.De Faria, 3V. &B. Atkins, 3 M. & K. 135; Eomilly, 25; Sann'erY. Morton, 3 Ruas. 65; M. E., Coolre v. Lamotie, 15 Beav. Jeasel, M. E., Beijnm. y. Cook, L. E. 234; 21 L. J. C. 377. 10 Ch. 393. (r) Cairns, L. C, Thomson y. East- ( p) See Salter v. JBradshaw, 26 wood, L. E. 2 Ap. Ca. 236 ; see Far- Beav. 161 ; 28 L. J. 0. 426 ; Sibber- rar v. Farrars, L. E. 40 0. D. 395 ; ing Y. Earl Balcarras, 3 D. & Sm. 58 L. J. C. 185. 358 CAUSES VITIATING AGEEEMENT. P-tBTi. right, was held wholly Toid («). And where a trustee for sale took the property to himself at a certain price, and sold it again at an advanced price, the first sale was held void and he was held trustee for the price obtained at the second sale {t). The same principle applies to an executor purchasing the assets of his testator or the interest of a legatee [u). But a trustee who disclaims the trust or an executor who disclaims the executorship is under no disability as to subsequent trans- SoUcitor. actions («). — " There is no rule that a solicitor may not pur- chase his client's property even while the relation subsists between them ; but the omts is thrown upon the solicitor to show that everything is perfectly fair ; and that the vendor knew what he was doing, and that the full price was given, and that no advantage was taken of the character of soli- citor " (y). The same principle applies to a solicitor taking a mortgage from his client, which he must take in the usual form and subject to the usual mode of accounting ; and where in such mortgage the power of sale was made exerciseable without notice, he was held liable for the loss and expenses caused by a sale (s). And there is a rule of law that while the relation of solicitor and client continues the solicitor cannot take any gift from his client, such a gift being abso- Director of lutely void (fl). — The director of a company is ia a fiduciary position in relation to the company, and a sale or transaction between them may be avoided upon the above principles and the director held liable to refund all benefits and profits obtained under it ; the burden being upon the director to prove that the transaction was fair and that no advantage (s) Thomsons. Eastwood, supra; see son v. Judge, 3 Drew. 306 ; 24 L. J. Ellis V. JBarher, L. B. 7 Ch. 10-t ; 41 C. 787 ; Hobday v. Fctcrs,' 2% Beav'. L. J. C. 64. 354 ; 29 L. J. C. 780. See post, p. 632. (t) Fox v. Maolcreth, 2 Bro. C. C. (z) Cockhurn v. Edwards L E, IS 400 ; 1 W. & T. L. C. 6th ed. 141. C. D. 449 ; 51 L. J. C 46 ; see Eooleif (u) Bening field Y . Baxter, L. R. 12 v. Whetham, L. K. 33 C. D 111 ■ 55 Ap. Ca. 167 ; 66 L. J. P. 0. 13 ; see L. J. G. 899; Wttrd\. Sharp, 53 L. J Me Worssam, 51 L. J. C. 669. C. 313. [x) Clark v. Clark, L. R. 9 Ap. Ca. (a) Tomson v. Judge, 3 Drew. 306 • 733 ; 53 L. J. P. C. 99. 24 L. J. C. 785 ; Morgan y. m,u-tt, L (;/) Eldon, L. C, Gibson v. Jeges, E. 6 0. D. 646; see Guest v. Smi/the 6 Ves. 271 ; Kindersley, V.-C, Tom- L. R. 5 Ch. 651 ; 39 L. J. C. 636. ' UNDUE INFLUENCE. 359 was taken of his position (6). But the company with full g'J'^-^Jj knowledge may ratify the transaction ; and the director, - being a shareholder, may Yote upon the question of ratifica- tion (c). — The promoter of a company, for the purpose of Promoter, selling property to it, stands in a similar fiduciary position, and is hound to create a board of independent directors, and to communicate to them all material information regarding the property and its value («?). "The term promoter is a term not of law, but of business, summing up ia a single word a number of operations by which a company is generally brought into existence " (e). Agreements between a child and parent or guardian or Agreement person in loco parentis are presumptively affected by undue parent or influence and therefore voidable ; and the burden is thrown ^^ ^' upon the parent, and any person claiming under him, to show that the child acted freely and with independent advice ; and the same rule applies with persons of full age, so long as they are not emancipated from parental control (/). A security given by a person under age for a loan to her stepfather, with whom she was living, was held presump- tively void as obtained by undue influence ; and a subsequent renewal of the security when of age, but under the same influence and vrithout full information of its invalidity, was held to be no confirmation and invalid (g) . A gift to a parent or guardian is not absolutely void ; but whilst parental (b) Fer cur. Xortli West Transport L. R. 29 C. D. 795 ; 54 L. J. C. 822 ; Co. V. Beatiy, L. E. 12 Ap. Ca. 593 ; LadyicM 2Iining Co. v. Sroolccs, L. B.. Imperial Mercantile Credit v. Coleman, 35 C. D. 400 ; 56 L. J. C. 684. L. E. 6 H. L. 189 ; 42 L. J. C. 644; («) Bowen, J., Whaley Bridge Co. Flanagan v. Great Western Eg., L. R. v. Green, L. R. 5 Q. B. D. Ill ; 49 7 Eq. 116; 38L. J.C. 117 ; Cfl»CT(iM7i L. J. Q. B. 326; and see Emma Bentinck t. Fenn, 57 L. J. C. 652. Mining Co. v. Lewis, L. R. 4 Q. B. (c) North West Transport Co. v. D. 396 ; Be Great Wheal Polgoath Co., Beatty, supra. 53 L. J. C. 42 ; Lydney Iron Co. t. (d) Cairns, L. C, Erlanger v. New Bird, L. R. 33 C. D. 85 ; 55 L. J. C. Sombrero Co., L. R. 3 Ap. Ca. 1236 ; 875. 48 L. J. C. 73 ; Phosphate Sett-age Co. (/) Osborne v. Williams, 18 Ves. V. Sartmont, L. R. 5 C. D. 394; 46 379; Bainbriggev. Brown, L. R. 18 L. J. C. 661; Bagnallv. Carlton, L. C. D. 188; 50 L. J. C. 622. R. 6 C. D. 371 ; 47 L. J. C. 30 ; (g) Eempson v. Ashbee, L. R. 10 Emma Mining Co. v. Grant, L. R. 11 Ch. 15 ; 44 L. J. C. 195. C. D. 918 ; see Be Cape Breton Co., 360 CAUSES VITIATING AGKEEMENT. PaetI. influence lasts it lies upon the parent to prove that it was made -with full knowledge and -with free will {h). The Court will not set aside a proper and reasonable settlement of family- property upon the mere ground that parental authority was exerted to induce its execution («') ; but the Court may rectify it by depri-dng the parent of any undue benefit to be taken under it {k) . Special The same general principle applies " to all the variety of relations of,. .,.,,.. , ._, influence, relations m which dominion may be exercised by one person over another " {I): as in the case of dealing with a person who is illiterate and ignorant of business and who has no independent ad-viser {m) ; or with a person who is imder such pecuniary necessity as not to be a free agent (w) ; and where a son had forged his father's name to bills, and security for the amount was taken from the father under threat of a prosecution (o) ; also in the case of gifts taken by a medical adviser from his patient (p) ; and a gift to a religious association from a member, who is bound by the rules to poverty and obedience, and excluded from external advice {q) ; and in any case of a confidential adviser taking a benefit from the person dependent upon his ad-vice (r). — The trans- actions in such cases are in general voidable only, and not absolutely void ; and they may be confirmed after the relation (A) Turner, L. J., Wright y. Van- Jac. 280 ; Stanley v. Eohinson, 1 !R. & derplank, 8 D. M. &G-. 133 ; 25 L. J. M. 527 ; Cooke v. Lamotte, 15 Beav. C. 763 ; see Match v. Hatch, 9 Yes. 234 ; 21 L. J. C. 371 ; Fry v. Lane, 292 ; Taylor v. Johnston, L. E. 19 0. L. E. 40 C. D. 312 ; 58 L. J. C. 113. D. 603 ; 61 L. J. 0. 879 ; Dutton v. (n) Wood y. Aubrey, 3 Madd. 417 ; Thompson, L. B. 23 C. D. 278 ; 52 James v. Eerr, L. R. 40 C. D. 449 ; L. J. C. 661. 58L. J. C. 355. (i) Hardwioke, L. C, Cory v. Cory, (o) Williams v. Saiky, L. B. 1 H. 1 -y-ea. sen. 19 ; Hoghton t. Eoghton, L. 200 ; 35 L. J. C. 717 ; see Davies 15 Beav. 278 ; 21 L. J. C. 482 ; J)ims- v. lond. ^- Prov. Ins., 8 C. D. 469 ; 47 dale T. Dimsdale, 3 Drew. 656; 25 L. J. C. 511 ; Jones v. JJerioneth J}g. L. J. C. 806. Soc, (1891) "W. N. 191 ; JJcClaichie v. (k) Hoblynr. Sol/lyn, L. B. 1 C. D. Saslam, ib. ; post, p. 027. 200. [p) Dent v. Bennett, 4 M. & Cr. (I) Cottenham, L. C, Dent r. Ben- 269; Mitchell v. Somfray, L. B. 8 nett, 4 M. & Cr. 277 ; see Rhodes v. Q. B. D. 587 ; 50 L. J. Ex. 460. Bate, L. E. 1 Ch. 252; 35 L. J. C. {q) Alkaid v. Skinner, L. E. 36 267 ; Hobday y. Peters, 28 Beav. 354 ; C. D. 145 ; 56 L. J. 0. 1052. 29 L. J. C. 780 ; Lovesy v. Smith, ()•) Hunter v. Atkins, 3 M. & K L. B. 15 0. T>. 656 ; 49 L. J. C. 809. 113 ; Tate t. Williamson, L. E. 2 Ch. (m) £vans v. Llewellyn, 1 Cox, 333 ; 65 ; Moxmi v. Fayne, L E 8 Ch 2 Bro. C. C. 150 ; Stihoell v. Wilkins, 881 ; 43 L. J. C. 240. UNDUE INFLUENCE. 361 of influence has ceased (s) . And tlie party seeking to set Ch. vi. aside the contract must be in a position to restore the other '. — L party to his original position ; otherwise the Court will not set it aside (t). (s) Mitchell v. Somfray, supra ; {t) Bimsdale v. Dimsdale, 3 Drew. Wright V. Vanderplanlc, 8 D. M. & 556 ; 25 L. J. C. 806 ; Semery y. G. 133 ; 25 L. J. 0. 753 ; see ante, Worssom, 51 L. J. 0. 669. p. 367. 362 PART II. PARTIES TO CONTRACTS. Chapter I. PEINOIPLES OF THE LAW OF PAETIES. PAQE Contract requires two parties — where same person as debtor and creditor — same person as buyer and seller 362 Effect of contract as to third parties — trustee and cestui que irtist — liability of third party 365 Indenture inter paries — deed poll — simple contract in writing 368 Designation and identification of parties 370 Joint debtors — non-joinder of co-debtor — eui-viving lia- bility upon death of joint debtor 372 Joint creditors — non- joinder of co-creditor — surviving right upon death of joint creditor , 375 Joint and several contracts — joint and several debtors — joint and several creditors 376 Construction of contracts as to joint and several liability — as to joint and several rights 378 Rights of joint parties inter se — principal and surety — right of surety to securities for the debt — discharge of surety by dealings with principal 383 Contract EvERY contract necessarily requires two parties, a promiser requires ^^^ ^ promisse, at the time of making it ; a contract cannot parties. -j^^ made -with a non-existent person, as the future owner of an estate («). But the offer of a contract may be such as to leave it open for acceptance by any person interested, who then becomes a party by satisfying the conditions of the offer and accepting the terms : as in the case of an advertise- («) Jessel, M. R., Kelscij v. Dodd, 52 L. J. C. 39. PRINCIPLES OF THE LAW OF PARTIES. 363 ment offering a reward, which is accepted by the person Chap. I. performing the services for which the reward is offered {b) ; or a letter of credit which operates as a contract to honour the bills drawn under it, made with whomsoever may take the bills upon the credit of it (c). — A negotiable instrument, as a bill of exchange or a promissory note, may be made payable to bearer, who becomes party to the contract by holding the instrument ; but " where a biU is not payable to bearer, the payee must be named or otherwise indicated with reasonable certainty "((^). "A bill may also be made payable to the holder of an office for the time being "(c); and "where the payee is a fictitious or non-existent person the bill maybe treated as payable to bearer "(/). A pro- missory note drawn payable to the maker's own order is an incomplete instrument, until indorsement; it then becomes a valid note payable to the indorsee or his order; or if indorsed in blank and delivered, it is payable to the bearer (g). And an instrument in the form of a bill of exchange, addressed to and accepted by a person, but not containing the name of either a drawer or payee, is an incom- plete instrument until the name of a payee is supplied by the person authorised to do so (A) . The same person cannot be both debtor and creditor ; and Same generally where the characters of debtor and creditor become debtor and united in the same person in his own right the debt is '''^®'^*°'^'- extinguished. Where a company having two departments, one for loans and the other for insurance, effected an insurance by the one department vsdth the other to secure a loan, it was held to be a mere formality without legal effect; and the (5) See ante, p. 12. (y) Sooper v. Williams, 2 Ex. 13 ; (e) See ante, p. 12. Brown v. De TFihton, 6 0. B. 336 ; \d) Bills of Exchange Act, 1882, Gay v. Lander, ib. 361. o. 7 (1). (A) M'OallT. Taylor, 19 0. B. N. S. [e) Ib. 8. 7 (2) ; see Yates t. Nash, 301 ; 34 E. J. C. P. 365 ; see Miller 8 C. B. N. S. 581 ; 29 L. J. C. P. v. Thmnpson, 3 M. & G. 576 ; Relden 306. T. Marshall, 9 0. B. N. S. 606; (/) Bills of Exchange Act, 1882, Stoessigery. South East. Sij. Co., 3 E. s. 7 (3) ; see Bank of England v. Vag- & B. 649 ; 23 L. J. Q. B. 293 ; Feto liana, (1891) Ap. Ca. 107 ; 60 L. J. t. Meynolds, 11 Ex. 418 ; 23 L. J. Ex Q. B. 146. 98 ; Carter v. White, L. R. 25 C. D. 666; 54 L.J. C. 138. 364 PARTIES TO CONTRACTS. Part II. Shipowner carrying his own goods. Same person as buyer and seller. company could not charge the borrower as for an insurance which he had agreed to pay(i). So a creditor, or trustee, or agent having authority to insure, who acts as his own insurer cannot charge for premiums as if an insurance had heen legally effected (/i-) . Where a shipowner carries his own goods there is no " freight " properly so called, because he cannot contract with himself ; but only an increased value in the goods due to the carriage. Therefore a purchaser, or mortgagee, or under- writer, taking possession of the ship during the voyage, cannot claim accruing freight in respect of such goods, as being a claim incident to the ship ; they can only claim for subsequent freight, if the goods are carried to their destiaa- tion(Z). And if the shipowner, selling his goods during the voyage, delivers to the buyer bills of lading expressed to be for delivery on payment of freight at a certain rate, the so called freight is only part of the price deferred until delivery, for which the owner retains a lien ; but to which a mortgagee in possession of the ship can make no claim {m). An indorsee of such bill of lading takes it subject to the freight expressed in it as the condition of claiming delivery of the goods (m).. And under an insurance on " freight," the shipowner or his assignee may recover the profit or increased value due to carriage of his own goods (o). Upon the same principle a transaction in which the same persons appear as buyers and sellers is void: a trustee or mortgagee acting under a power of sale cannot be both buyer and seller ; and the sale is void, though he fixes the price at the full value {p). And where the sellers formed themselves (») Gretj V. Ellison, 1 Giff. 438 ; 25 L-. J. C. 666. {k) Hutchinson v. Wilson, 4 Bro. C. C. 488. {I) Miller Y. Woodfall, 8 E. & B. 493 ; 27 L. J. Q. B. 120 ; see Hickie V. Eodocanachie, 4 H. & N. 455 ; 28 L. J. Ex. 273 ; Gumm M.Tyrie, 4 B. & S. 680 ; 34 L. J. Q. B. 124 ; Mer- cantile Bank v. Gladstone, L. R. 3 Ex. 233; 37 L. J. Ex. 130; Ld. Blackburn, Simpson v. Thomson, L. R. 3 Ap. Oa. 292. See post, p. 1062. (»«) Xeith V. Burrows, L. E. 2 Ap. Ca. 636 ; 46 L. J. C. P. 801 ; Swan V. Barber, L. R. 5 Ex. D. 130 ; 49 L. J. Ex. 253. (h) Wegtielin v. CelUer, L. E. 6 H. L. 286; 42 L.J. C. 758. (o) Flint Y. Flenumg, 1 B. & Ad. 45 ; CampbeU, C. J., Miller v. Wood/all, supra; see The Thyatira, L. R. 8 Adm. 155 ; 52 L. J. Adm. 85. {p) Doicnes \. Grazehrook, 3 Mer. 200 ; Martinson v. Clowes, L R 21 CD. 8^7; 51 L.J. C. 594. PRINCIPLES OF THE LAW OF PARTIES. 365 into a company to act as buyers at an enhanced price, the Chap, i. transaction was held void ; and they were held not accountable inter se for the nominal price {q) . But " a sale by a member of a corporation to the corporation itself is iu every sense a sale valid in equity as well as in law "; and such a sale is war- ranted by an ordinary power of sale (r). And a director of a company may sell in his own right to the company ; and he may vote as a shareholder at a meeting held to ratify the Contracts affect the parties only ; a contract can create no Effect of . 11 T 1 -Ti ' T * t I 1 'I 1 contract as right or liability m a person who is not a party to it; unless totMrd he can claim or be charged through a party, as in the case of P^"*^^- a cestui que trust claiming through a trustee ; or a principal claiming or being charged through an agent {t) . " "Where two persons, for valuable consideration between themselves, covenant to do some act for the benefit of a mere stranger, that stranger has not a right to enforce the covenant against the two, although each one might against the other" (if). And a contract between two persons that one shall pay a debt of the other gives no right to the creditor, unless he is a party to the contract (a;) . Where the fathers of a newly- married couple, by way of post-nuptial settlement, agreed together that each should pay a sum of money to the husband ; and further, that the husband should have " full power to sue the said parties in any court of law or equity for the afore- said sums," it was held that the husband, being no party to the contract, could not sue in his own right (y). — Upon this Articles of principle it was held that the articles of association of a com- of com- pany appointing a certain person to be solicitor of the com- ^^^^' pany, not removable except for misconduct, operated by way (?) Se Ambrose ZaTce Co., L. E. («) Langdale, M. R., Colyear v. 14 0. D. 390 ; 49 L. J. C. 497. Mulgrme, 2 Keen, 98 ; Ex p. Piereij, [r) Fer eur. Farrar v. Farrar, L. E. L. B. 9 Ch. 33 ; 43 L. J. B. 9. 40 C. D. 410 ; 58 L. J. 0. 185. {x) Crow t. Rogers, Str. 592 ; Price (s) North JFest Transport Co. v. v. JSciston, 4 B. & Ad. 433 ; see Featty, L. E. 12 Ap. Ca. 689 ; ante, Gregory v. Williams, 3 Mer. 582. p. 359. (y) Tweddle \. Atkinson, 1 B. & S. {<) See ante, p. 20 ; post, pp. 367, 393 ; 30 L. J. Q. B. 265. 387. 366 PARTIES TO CONTRACTS. ^■^^1' "• of contract between the shareholders only, and gave no right to the solicitor to sue for wrongful dismissal (s) ; and that articles of association providing that the company should pur- chase a mine at a stated price created no contract with the vendor (a) ; and that articles of association providing for the payment of the preliminary expenses by the directors gave no right of action to the promoter who incurred the expenses ; unless a fund was appropriated in trust against which he could claim (b). appointed Upon the same principle it is not oomjDctent for the parties to sue. to a contract to nominate a person not being a party to bring actions in his own name on behalf of parties : as in the case of commissioners of a district letting tolls at an annual rent " to be paid to the treasurer of the commissioners," it was held that the contract, being with the commissioners only, gave no right of action to the treasurer (c). And where a mutual insurance association appointed a manager to sign policies and to demand and sue for premiums and contributions, it was held not admissible " to substitute a person as nominal plaintiff in lieu of the person whose rights have been violated " (d). So the rules of a cost book mining company providing " that calls in arrear shall be considered debts due to the purser " did not give power to the purser to sue for calls (e) ; but the Stannaries Act, 1869, 32 & 33 Yict. c. 19, s. 13, enables the purser for the time being of the company to sue a shareholder for calls as the nominal plaintiff for the company (/). The Joint Stock Banking Companies Act, 7 Greo. lY. 0. 46, s. 9, also provides that all proceedings at law or in equity are to be prosecuted in the name of one of the public officers of the company appointed for that pur- (z) Met/ T. Positive Security Ass., {c) FigottY. Thompson, 3 B. & P. li. R. 1 Ex. D. 88; 45 L. J. Ex. Ii7 ; see SadcuJiifi-st y. Sates. 3 Biao-' 451. 463. ° (rt) Pritchard's case, L. K. 8 Ch. [d) Gray v. Pearson, L R 5 C P 956 ; 42 L. J. 0. 768. 568 ; Pvans v. ffooper, L. R. 1 Q. B. (J) Melhado v. Porto Alegre By., D. 45 ; 45 L. J Q B 206 L. R. 9 0. P. 603 ; 43 L. J. C. P. (e) ffybartv. Parker, 4 c'. B. N. S. 253 ; Be Empress JEngineering Co., L. 209 ; 27 L. J. C. P. 120. R. 16 CD. 125; Be Sotherham Alum (/) See Escott v. Grau 47 T, T Co.,L. R. 25 0. D. 103; 53L.J.C. 0. P. 606. "' y, *< -Li. o. 290 ; and Bee post, p. 624. PRINCIPLES OF THE LAW OF PARTIES. 3 67 pose (g). Under this Act it is held that though a covenant Chap. i. is made to covenantees by name on behalf of the company, the action must be brought in the name of the public officer (A). The same principle applies in equity, and " generally to a Parties bill for a specific performance of a contract the parties to the contract only are the proper parties; and persons strangers to the contract, and therefore neither entitled to the right nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it " (^). Accordingly the purchaser from a mortgagor of a mortgaged estate may sue the vendor for specific performance •without joining the mortgagee as a party, though his concur- rence may be necessary to the conveyance (A), and a mort- gagee selHng under a power of sale may sue the purchaser for specific performance without joining the mortgagor (/). — But if the contract though in form with a named person is Trustee intended to secure a benefit to another as cesttci que trust, the ^ue trust. latter may sue in his own right to enforce the contract («). Thus in a separation deed between husband and wife, in which covenants are made by the husband with a trustee for the benefit of the wife, the wife is entitled to sue ; but a covenant by the husband with the trustee to provide for the maintenance of the children does not give the children any right to sue, or to compel the trustee to sue on their behalf (w). Children are entitled to claim in their own right the benefits contracted for them in the marriage settlement of the parents ; and in the settlement upon the second marriage of one of the parents (o). Where two parties agree to pay a sum of money in trust for a third party, the latter may sue in equity ia his (ff) See 25 & 26 Viet. u. 89, soh. 3, {I) Carder v. Morgan, 18 Ves. 344 ; part 2 ; 27 & 28 Viot. u. 32. see Sarr;/ v. Davey, L. R. 2 Ch. D. (A) Chapmany. Milvain, i'Ex. 61; 721; 45 L. J. C. 697; see Order Wills T. Sutherland, 5 Ex. 715; "SNl.v. II; Dixy. Great Western Ry , Steward v. Greaves, 10 M. & W. 711. 55 L. J. C. 797. (i) Cottenham, L. C, Tasher y. (m) Gotton,Zi. J., Gandt/y. ffandu, Small, 3 M. & Or. 69 ; Paterson v. L. R. 30 C. D. 67 ; 54 L. J. C. 1154. Long, 5 Bear. 186 ; De Soghton v. (») Oandy y. Gamdy, supra. Money, L. E. 2 Ch. 164. (o) GaU y. Gale, L. E. 6 C. D. [k) Tasher v. Small, supra. 144 ; 46 L. J. 0. 809. 368 PARTIES TO CONTRACTS. Liability of third party. PaktII. own name to enforce the contract between them {p). And a trustee suing upon a contract on hehalf of his cestui que trust may recover all damages sustained by the latter, as if he had sued in his own person (q). Although a person cannot be charged with any liabiKty_ upon a contract to which he is not a party, he is bound so far to respect the rights of the parties that he may become liable to an action for an injurious interference with the contractual relations created between them : as for enticing away and harbouring another person's wife (r) ; or for enticing away, harbouring, or seducing a servant or apprentice (s) ; or for inducing a person to break a contract of special personal service to another; as an engagement of a professional singer (t), or an engagement for exclusive service in a special manufacture (««). Indenture inter Composi- tion deed. In an indenture or deed made inter partes, the formal statement of the parties by name or description impliedly excludes any other parties ; and those persons only who are so named or described can acquire a right or incur a HabUity, or can sue or be sued under the deed (x). In an indenture of lease at common law a person not named as a party could not sue upon the covenants, though expressly made to him (y) ; nor could such person join with parties in suing upon the covenants, though expressly made to all of them jointly (s). — ^Where a composition deed described the parties of the one part as " the several persons whose names and seals are sub- scribed and affixed in the schedule hereunder written, being {p) Alvanley, C. J., Pigott v. Thompson, 3 B. & P. 149 ; Gregory v. Williams, 3 Mer. 582; Touehe v. Metrop. Warehouse Co., L. E. 6 Ch. 671 ; see Empress Engineering Co., L. K. 16 C. D. 125. (q) Lloyd's v. Harper, 'L. K. 16 C. D. 290 ; 50 L. J. C. 141. (r) Winsmore v. Greenhank, Willes, 577 ; see Fhilp v. Squire, Peake, 116 Serthon v. Cartwright, 2 Esp. 480 see 20 & 21 Viet. o. 85, s. 59. (s) See Bullen & Leake, Prec. PI. 462, 4th ed. (0 Lumley v. Gye, 2 E. & B. 216 ; 22 L. J. Q. B. 463. (m) Bowen v. Hall, L. R. 6 Q. B. D. 333 ; 50 L. J. Q. B. 305, Cole- ridge, C. J., dissentiente. {x) Co. Litt. 231 a ; per cur. Storer T. Gorcion, 3 M. & S. 322 ; ChesterJieU Colliery v. Hawldns, 3 H. & C. 677 : 34L. J. Ex. 121. (y) Berkeley y. Hardy, 5 B. & C. 355 ; see Frontin v. Small, 2 Ld. Eaym. 1418 ; 1 Str. 705. (2) Southampton v. Brown, 6 B. & C. 718. PRINCIPLES OF THE LAW OF PARTIES. 369 creditors executing these presents," it was held that creditors Chap. i. who did not execute the deed were not parties and could not sue upon the covenants, though they were expressed to be made with all the creditors ; and consequently the deed was not valid in bankruptcy against non-executing creditors, who were not upon equality with the others («). But where such deed is expressly made with " all the creditors," or in terms including all creditors as parties, it is so far valid that all the creditors can sue upon the covenants (b). — An exception was Covenants made to the above rule by the Act to amend the law of real realty. property (8 & 9 Yict. c. 106) enacting, s. 5, " that under an indenture, executed after the 1st October, 1845, an immediate estate or interest in any tenements or hereditaments, and the benefit of a condition or covenant respecting any tenements or hereditaments may be taken, although the taker thereof be not named a party to the same indenture." But he must be a person existent at the time and capable of taking the benefit (c) . Where a covenant is made in the form of a deed poll. Deed poll, which does not contain any formal statement of parties, the covenantee appears as a party merely from the name or de- scription of him in the covenant ; and -it is sufficient if he is ascertained in that manner (« v. Naiiibi/, 10 B. & C. 20 ; Teed v. M- worth}/, 14 East, 210 ; MoUer v. Zam- iert, 2 Camp. 548. («) Cooke V. Sceleij, 2 Ex. 746 ; "Willes, J., Alliance Bank v. Kearsly, L. R. 6 C. P. 438 : 40 L. J. C. P. 263. PRINCIPLES OF THE LAW OF PARTIES. 371 between them (o). — A person may be bound by a contract Chap. I. made in a mistaken or assumed name ; and may be charged with it in an action upon sufficient allegation and proof of identity [p). Where a person purchased shares in a company and executed the transfer deed and registered the shares in an assumed name, he was held to be the contracting party and liable to be placed upon the list of contributories in his own name (q) ; but not in a case where the purchaser of the shares used another person's name with the intention of vesting the shares in that person (r). — The parties to a contract may be sufficiently described as "the creditors" of a person (s) ; or as "the executors" of a person ; and then all the executors who prove become parties (t). In a contract of sale the vendors may be sufficiently described as " the pro- prietors" of the property sold, because they maybe identified by that description (u) ; or as " the trustee under a trust for sale"(a;). But the description of "vendors" was held not to be a sufficient description within the Statute of Frauds, because it left it quite open to parol evidence to show who was the party selling (y) . In an ordinary policy of mariue insm'ance the parties are described as "the assured," meaning the persons interested in the named ship (2). Several persons may Join as party to a contract on the one joint part or on the other ; that is to say, in respect of the same P^'*"^^- (0) Sxp. Wilson, L. E. 7 Cli. 490 ; (t) Sood v. Lord Barringtmi, L. E. Banco de Fortugalw. Waddell, L. K. 6Eq. 218 ; JK'Cfeam v. JesMsri, L. R. 5 Ap. Ca. 161 ; 49 L. J. B. 33. 9 Ch. 336 ; 43 L. J. C. 323. {p) Gould V. Barnes, 3 Taunt. 504 ; (m) Sale r. Lambert, L. E. 18 Eq. explained in Williams v. Bryant, 6 1 ; 43 L. J. C. 470 ; Commins v. Scolf, M. & W. 447 ; see Seeves v. Slater, 7 L. E. 20 Eq.. 11 ; 44 L. J. 0. 563 ; B. & C. 486 ; Janes v. Whitiread, 11 Eossiter v. Miller, L. E. 3 Ap. Ca. C. B. 406 ; 20 L. J. C. P. 217 ; see 1124; 48 L. J. C. 10 ; see ante, ante, p. 178. p. 230. {q) Richardson' s case, L. E. 19 Eq. [x) Catling v. King, 46 L. J. C. 588; 44 L. J. C. 252. 384. (r) Williams' case, L. E. 1 C. D. (y) Potter v. Buffield, L. E. IS Eq. 576 ; 45 L. J. C. 48 ; Ee London ^ 4 ; 43 L. J. 0. 472 ; see Eossiter v. Bomiay Batik, L. E. 18 C. D. 581 ; Miller, supra ; Jarrett v. Hunter, L. 50 L. J. C. 557 ; see Ee Britannia Fire E. 34 C. D. 182 ; 56 L. J. C. 141 ; Ass., (1891) 1 Ch. 202 ; 60 L. J. C. and see ante, p. 230. 186. (z) Oreat Britain Steamship Ass. v. (s) See ante, p. 369. Wyllie, L. E. 22 Q. B. D. 710; 58 L. J. Q. B. 614 ; ante, p. 369. br2 1ART1E3 TO CONTRACTS. Paet II. Joint debtors. Non- joiuder of joint debtor. debt or liability several persons may join in the character of debtor, or in the character of creditor. In such cases the persons who are jointly party to the contract, whether as joint debtors or as joint creditors, though they may have several interests relatively to one another, are united in interest relatively to the other party. — " Where several per- sons make a joint contract, each is liable for the whole, although the contract be joint." For if one of the joint contractors be charged separately in an action, whether upon a joint bond or covenant or upon a simple contract, he cannot say that the bond was not his deed, nor that he did not promise; consequently "proof of the joint contract is suffi- cient to sustain the allegation that one contracted, and therefore there is no variance " (a) . So where several of joint contractors are sued jointly omitting others ; and accordingly, "if the obligee proceed upon a joint bond, there is no difference between suing tiw only of three joint obUgors, and one only of tuv joint obligors" {b). And an action on a bill of exchange against three defendants charging them as acceptors is supported by proof of a bill drawn upon and accepted by them jointly with another person (c). But "it is the right of persons jointly hable to pay a debt to insist upon being sued together" (rf). At common law if one of joint contractors was sued alone he might plead in abatement of the writ the non- joinder of the other parties jointly liable with him. This was the only mode of taking the objection ; it could not be pleaded in bar, and by plead- ing to the merits of the action the objection of non- joinder was waived (e). The plea in abatement was required to state the joint contractors who must be sued, in order to give the plaintiff a better writ, and was not available unless this («) AWoott, J ., Sichards V. Beather, 1 B. & Aid. 35 ; Whelpdale' s case, 5 Co. 119 ; Bicev. Shute, 5 Burr. 2613 ; per cur. King v. Soare, 13 M. & W. 605 ; see Hammond \ . Schofield, (1891) 1 Q. B. 453 ; 60 L. J. Q. B. 539. (i) 1 Wms. Saund. 291 h, Gabelly. Vaughan. {c) Moimtstephen v. Brooke, 1 B. & Aid. 22t. (d) Cairns, L.O., Kendall w. Hamil- ton, L. R. i Ap. Ca. 515 : 48 L. J. C. P. 705. (e) Abbot V. Smith, 2 "W. Bl. 947 ; Cabell V. Vaughan, 1 Wms. Saimd. 291 ; see Bullock v. Caird. L. R. 10 Q. B. 276; 4 4 L. J. Q. B. 124 TRINCIPLES OF THE LAW OF PARTIES. 373 could be done ; consequently it could not be pleaded where Chap. i. the alleged joint contractor was dead, or was not resident within the jurisdiction, or where he had been discharged by bankruptcy or insolvency, or was protected by the Statutes of Limitation, or was under incapacity of contracting, as an infant or married woman (/). — Now under the Judicature Acts, by Order XXI. r. 20, "No plea or defence shall be pleaded in abatement." And by Order XVI. r. 11, " The Court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court or a judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out ; and that the names of any parties, whether plaintiffs or defen- dants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the case or matter, be added." Under this rule a defendant has the same right to have an alleged joint contractor joined as he had at common law under a plea in abatement (g). — The judgment and writ Execution of execution charge all the defendants jointly, and the whole jf^T con- amount may be levied against one separately ; consequently '^''''*°'^- each joint contractor becomes ultimately liable to the creditor for the whole, and not only for his proportionate part, though the contract be joint (k). But he is presumptively entitled to contribution from the joint contractors, and therefore it is material for him to have them joined in the same action and bound by the same judgment (i). Upon this principle joint shareholders in a company, upon a winding up, become liable as contributories, each for the whole amount of calls, and not (/) 3 & 4 Will. IV. c. 42, ss. 8, 9 ; (A) Mansfield, C. J., Bird v. San- Bee Bullen & L. Precedents of Plead- dall, 1 W. Bl. 388 ; per cur. Abbot v. ings, 3rd ed. 471, 476. Smith, 2 W". Bl. 949 ; Kenyon, C. J., {ff) CedmSjlj. G. , JTendallv. ITainil- Serries v. Jamieson, 5 T. R. 566; ton, L. R. 4 Ap. Ca. .516 ; 48 L. J. see Land Credit Co. v. Fermoy, L. R. C. P. 705 ; Filley v. Robinson, L. R. 20 5 Ch. 323 ; 39 L. J. C. 477. Q. B. D. 155 ; 67 L. J. Q. B. 54. (i) See ante, p. 69. 37J: PARTIES TO CONTRACTS. I'^BT II. proportionally according to their number ; though they may he liable for contribution wfer se (/c). fiabmt^"^ Upon the death of one of several joint contractors, the upon death legal liability under the contract devolves on the survivors ; debtor. and the representative of the deceased cannot be sued at law either alone or jointly with the survivors. Consequently the whole legal liability ultimately devolves upon the last surviv- ing contractor, and after his death upon his representatives [I). So the liability of joint shareholders in a company upon the death of one survives to the other ; and the representative of the deceased cannot be charged {m). And upon this principle a release made to the executor of one of joint obligors is in- operative, because upon the death of the one the debt survived Liability of against the others [n) . — The liability in equity presumptively equity. foUows the legal form of the contract in this respect, and devolves exclusively upon the survivors or survivor ; for " where the obligation exists only by virtue of the contract, its extent can be measured only by the words in which it is conceived "(o). But there may be equitable grounds for treating the liability as several as well as joint, and for hold- ing the estate of the deceased contractor liable ; as where the intention of the parties was that the contract should be joint and several, and it was drawn as joint only by mistake; or where there were antecedent several habilities which could he enforced in equity independent of the joint instrument (7^). The contracts of partners, which are presumptively joint in law, are joint and several in equity, in that creditors are allowed to prove against the estate of a deceased partner, and if necessary to take proceedings for the administration of his estate, as a consequence of the equitable principle that between partners [k) Cunninghame v. Glasgow JBanlc, («) Ashbee x. Pidduclc 1 M & W. L. E. 4 Ap. Ca. 607 ; Gillespie v. 564. ' Glasgow Bank, L. E. 4 Ap. Ca. 632. (o) Grant, M. E., Sumner v. Pou-ell, (I) Richards v. Heather, 1 B. & 2 Mer. 30 ; T. & E. 423 ; Rawitone Y. Aid. 29; CaJderv. Rutherford, 3 B. & 2'arr, 3 Euss. 639 ; IFilmerY Carreii -^•,^?^V_r„, T -r, „„., . 2 De G. & Sm. 347; Richardson y. [m] Hill's case, L. E. 20 Eq. 585 ; Horloii, 6 Beav. 185. 44 L. J. C. 423. (^) Simpson v. Vaiighau, 2 Atk. 31 ; see Rawstonc v. Parr, supra. PKINCIPLES OF THE LAW OF PARTIES. 375 there is no survivorship of the partnership estate {q). "Whilst Chap. I. the partners are living and the partnership continues a joint contract is treated in equity as at law, as joint according to its terms ; so that a judgment recovered in an action against one of the partners discharges the liability of the others as against the creditor (r). And a lease to joint lessees with joint covenants by them, will not be treated as several in equity, after the death of one, merely because they were partners and used the premises for partnership purposes (s). Where the contract is made with several persons as joint J'oint creditors, they must all join in suing as joint plaintiffs. Joint covenantees may join in suing, though they have not all or any of them in fact executed the deed ; for their acceptance of it is presumed if nothing appear to the contrary (t) . But if the contract purports and is intended to, be made with certain covenantees jointly, the disagreement or disclaimer of one or more of them, to which the covenantor is not also a party, does not convert it into a contract with the others or entitle them to sue (m). Where a contract of sale purported to be made with certain named persons as vendors, some only of whom signed it, it was held that those who signed could not sue alone for specific performance {x). Nor can one of joint covenantees assign his right to sue to the other, so as to entitle him to sue alone («/). — If one of joint creditors is Non- omitted as plaintiff and the action proceeds to trial, there is if'^oiift a variance between the contract charged and that appearing creditor. in fact, which, unless amended, is groTm.d for a nonsuit or adverse verdict (2). At common law the objection of the [q] James, L. J., Beresford v. see Sx p. Coriett, h.^R. liC.X). 122; Browning, L. R. 1 C. D. 34 ; 45 L. J. 49 L. J. B. 74. C. D. 36 ; Re Hodgson, L. B. 31 C. D. [t) See ante, p. 118 ; Rose t. Poiil- 177 ; 55 L. J. 0. 241 ; Re McEae, ton, 2 B. & Ad. 822. L. R. 25 C. D. 16 ; 53 L. J. 0. 1132. (ti) Petrie v. Burij, 3 B. & C. 353 ; [r) Kendall v. Hamilton, L. R. 4 Wetherell-v. Langston, 1 Ex. 634. Ap. Ca. 504 ; Camiefort v. Chapman, (x) Hornsby v. Bird, 38 L. J. C \j. B. 19 Q. B. D. 229; 56 L. J. 244. Q. B. 639; &ee Badeley y . Consolidated (y) Fer cur. WefherellY. Langston Bank, L. R. 34 0. D. 556 ; 67 L. J. 1 Ex. 645. C. 468. (z) GuidmiY. Robson, 2 Cavm^. ?,02\ (s) Clarke v. Bickers, 14 Sim. 639 ; Chanter v. Leese, 4 M. & W. 295 ; 1 376 PARTIES TO CONTKACTS. Death of joint creditor. Paet II. non- joinder of a co-plaintifi might also be taken by demiirrer or by a plea in abatement. Now under the Judicature Acts, the Court or a judge may amend the misjoinder or non- joinder of parties at any stage of the proceedings ; but no person can be added as plaintiff without his own consent in writing thereto (a). Upon the death of one of several joint creditors the legal right of action remains in the survivors, who must plead the joint contract according to the fact, with an averment of the death; and upon the death of the last survivor, it devolves upon his personal representative (b) . By the Conveyancing Act, 1881, 44 & 45 Yict. c. 41, s. 60, a contract or obligation under seal made with two or more persons jointly to pay money or to do any act to them or for their benefit shall imply an obligation to do the act to or for the benefit of the survivors of them, and to any other person to whom the right of action devolves ; but only so far as a contrary intention is not expressed. — In equity the survivor having obtained pay- ment may be accountable to the executor of the deceased, as is in general the case with partnership debts (c) . And with mortgages made to several persons jointly, though the right to the debt survives at law yet in equity they are presump- tively entitled in equal shares, and the representative of a deceased mortgagee is a necessary party to a foreclosure or redemption (d) ; unless the money is expressed to be advanced upon a joint account, which rebuts the presumption as be- tween the mortgagees and the mortgagor, and vests the right of suit in the survivor (c) . Survivor account- able in equity. Joint and several contracts. Several persons may bind themselves concurrently for the Wms. Saund. 154a, EceleUoiiY. CHp- shmn ; Abbott, C. J., JcH v. Douglas, 4 B. & Aid. 375. {a) Order XVI. rr. 11, 12; ante, p. 373 ; Jackion v. Kruger, 54 L. J. Q. B. 466. (J) Martin v. Crompe, I Ld. Raym. 340 ; Salk. 444 ; Anderson v. Martin- dak, 1 East, 497 ; Jell v. Douglas, i B. & Aid. 374 ; Scott v. Godwin, 1 B. & P. 67 ; BeUingham y. Clark, 1 B. & S. 332. ((') See Martin v. Crompe, supra. [d] Tettxj v. Styu-ard, 1 Ch. Rep. 31 ; Tickers v. Cowell, 1 Beav. 52y ; see Steeds v. Steeds, L. E. 22 Q B D. 537 ; 58 L. J. Q. B. 302. {e) Ee Jackson, L. R. 34 C. D. 732 ; 56 L. J. C. 693 ; see the CouTey- anoing Act, 1881, s. 61. PRINCIPLES OF THE LAW OF PARTIES. 377 same debt or matter, so that the creditor can claim the Chap. i. whole debt or performance against each debtor separately; or one person may bind himself to each of several persons for the same debt or matter, so that each can separately claim the whole debt or performance. The special cha- racter of such contracts is the identity of the debt or matter ; so that the payment or performance by one of the several debtors, or to one of the several creditors, discharges all the contracts. Such contracts occur in guarantees, where a principal debtor and sureties become severally bound to the creditor for the debt or matter guaranteed, and payment by one discharges all as against the creditor; though, as between themselves, the sureties who are compelled to pay may recover the amount from the principal debtor, or a proportionate part of it from the other sureties (/). Several persons may also enter into concurrent contracts Joint and respecting the same matter, bindiag themselYes j'ointli/ as one debtors, party, and also severally as separate parties; in which case, besides the one joint contract, there are also as many several contracts as there are separate parties ; 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 ; upon which the holder may sue separately {g). And upon bankruptcy of joint and several debtors the creditor is entitled to prove against their joint estate and the separate estate of each (A). Consequently, where several persons covenanted by deed jointly and sever- ally to several persons jointly, and one of the persons appeared as party on both sides ; it was held that, though the joint covenant was void on that account, and the several covenant of that party was also void, yet the several covenants of the other parties were distinct covenants and not thereby affected («) . — (/) See ante, p. S8 ; post, p. 178 ; 41 L. J. E. 9. 383. (A) Bankruptcy Act, 1869, s. 37 ; (g) BeechamY. Smith, E. B. & E. Ex p. Honey, supra; JEx p. Stone, 442 ; 27 L. J. Q. B. 257 ; Owen v. L. R. 8 Ch. 914 ; 42 L. J. B. 73 ; Jie Wilkinson, 5 C. B. N". S. 526; 28 L. J. laine, 56 L. J. Q. B. 153. C. P. 3 ; Ux p. Honetj, L. E. 7 Ch. (J) RoseY. Poulton, 2 B. & Ad. 822 ; 378 PARTIES TO CONTRACTS. PaetII. But it is a rule of law that a contract cannot be made by Joint and any words however strong joint and several on the part of creditors, the covenantees or promisees, in respect of one and the same matter so as to entitle them to sue both jointly and severally; because " an interest could not be granted jointly and sever- ally." Hence the same covenant cannot be treated as joint or several at the option of the creditors; they must be entitled either jointly only or severally only {k). — Under the Judicature Acts, Order XVI. r. 1, "All persons may be joined as plaintiffs in whom the right to any relief claimed is said to exist, whether jointly, severally or in the alterna- tive." And by r. 6, " the plaintiff may, at his option, join as parties to the same action all or any of the persons sever- ally, or jointly and severally, liable on any one contract, including parties to bUls of exchange and promissory notes." Construe- Where two or more persons join ia contracting, the ques- traots as to tion whether they do so jointly, or severally, or, in the ease several'' of &.^iox^, jointly and severally, depends upon the intention liability, expressed in the contract; and some rules have been laid down for the construction of contracts in this respect : — With respect to the liability of two or more persons, a written con- tract is construed according to the primary meaning of the words used. If the writing purports simply that the parties bind themselves or covenant, without more, the obligation or covenant is joint only and not several {I). If it purports that they bind themselves or covenant severally, the liability is several only {m). If it purports that they bind themselves jointly and severally, or bind themselves and each of them, or covenant for themselves and each of them, using both joint and several words, the liability is both joint and several («). The proper form of a joint and several obligation is said to see Heecham Y. Smith, supra ; and. see Copland v. Zaporte 3 A. & E 617 • ante, p. 363. JF/iite v. Tyndall, L. K. 13 Ap Ca' (Jc) Per cur. Slingsli/i case, 5 Co. 263 ; 57 L. J. P. 0. 114. 19 a ; Bradburne v. Botfleld, 14 M. & (»«) Matthewson's ea^e, 5 Co 22 b • W. 673 ; Eolfe, B., Keightleyr. JFat- Zee v. Nixon, 1 A. & E. 201 ' ' son, 3 Ex. 726 ; and see post, p. 380. («) Burns v. Bryan L. K 12 At) (I) Simpson v. Tau^Jian, 2 Atk. 31 ; Ca. 184. > • • a- PRINCIPLES OF THE LAW OF PARTIES. 379 te, " "We bind ourselves, our heirs, executors, and adminis- Chap. I. trators, and each of us bindeth himseK, his heirs, executors, and administrators" (o). Where a document, as a guarantee or promissory note, is signed in the name of a firm, and also in the names of the several individual members of the firm, it presumptively creates a joint liability of all, and a several liability of each ; otherwise the signatures of the individual members would have no effect (p). — If the language of the Conatmo- contract is ambiguous, and not exclusive of an intention of cordiigto contracting in either form, the intention may be derived from "i*^''^^*- the interests and relations of the parties. Thus where a bond was executed in the terms " we bind ourselves and each of us for himself for the whole sum of 1,000/. each," it was con- strued according to the object and context of the bond to constitute a several bond of each and not a joint bond (5'). A covenant in a lease by the lessee and a surety that they would pay the rent, and further that the lessee would repair, the coA'enant was held to be joint according to the words both as to the rent and as to the repair (r) . In a lease to two as tenants in common, at a single rent, the covenant by the lessees " for themselves, their executors, administrators and assigns, that they or one of them would pay the rent " was taken to be joint according to the words and not to be severed by the several interests (s) . — "Where a contract purports and is in- Condition tended to be the joint contract of several persons, of whom partiS aU one or some only execute it, the execution is presumptively s'S^^S- conditional upon all the persons executing it as intended, and it is not binding until all have executed {t). "In such a case, unless there is something special, the man who bad become so severally bound, has a right to have that bond delivered up ; for his intention was not to become a mere several obligor, but to be a joint and several obligor, and the (0) 1 "Wms. Saund. 154 a, n. {!>) ; [q) Collins v. Frosser, 1 B. & C. see Northumberland v. Errington-, 5 682. T. E. 522 ; Mansell v. Burredge, 7 (r) Copland v. Zaporte, 3 A. & E. T. R. 352. 517 ; see Clarke v. Bickers, 14 Sim. {p) Exp. Sarding, L. B. 12 0. D. 639. 564 ; 48 L. J. B. 116 ; Ex p. Eoney, (s) White v. Tyndall, supra. L. E. 7 Cli. 178 ; 41 L. J. B. 9. {t) Latch v. Wedlake, 11 A. & E. 959 ; see ante, p. 1G2. 380 PARTIES TO CONTR VCTS. Implied contracts. Paet II. rights are different both at law and equity ; for if he is only a several obligor he has no remedies over against any one ; but if he is a joint and several obligor or only a joint obligor, there is a right of contribution against the other sureties in equity "(t<). A joint and several continuing guarantee, after the death of one of the sureties, continues as a several guarantee of the survivor for advances subsequently made under it («) . — In debts implied in law for money paid or obtained by wrong or fraud there is no division of liability between the wrongdoers ; every person participating in the wrong is liable to make good the whole, with no right of contribution between them. They may be sued jointly or severally ; and in the case of a partnership matter or joint estate benefited by the transaction, recovery may be had against the joint estate, though all the partners or joint owners did not participate in the wrong {y). A similar rule applies to the liability of trustees arising from a breach of trust (z). As to the rights of two or more persons as creditors, a con- tract with several persons, in respect of the same matter, cannot by any words be made so as to entitle them both jointly and severally [a) ; and the general rule is that the contract will be construed to be joint or several according to the interests of the parties, if the words are capable of that construction, or even if they are not iaconsistent with it ; the contract will be joint if the interest be joint, and it will be several if the interest be several {h). — Accordingly in a conveyance of an estate to several persons jointly, the cove- Construc- tion as to joint and several rights. (m) Eldon, L. C, JJnderhillY.Sor- wood, 10 Ves. 226 ; see McClean v. Eennard, L. R. 9 Ch. 336 ; 43 L. J. C. 323 ; Bonser v. Cox, 4 Beav. 379 ; Evans v. Brembridge, 2 K. & J. 1 74 ; 25 L. J. 0. 334. {x) Beckett v. Addyman, L, R. 9 Q. B. D. 783 ; 51 L. J. Q. B. 597. iy) Per cur. Ex p. Adamson, L. E. 8 C. D. 820 ; 47 L. J. C. 103 ; see ante, p. 62. [a) lb.; see Re Oxford Building Soc, L. E. 35 C. D. 502 ; 66 L. J. C. 106 ; Leeds Building Co. v. Shepherd, 67 L. J. C. 46 ; Bh/th v. Eladgate, (1S91) 1 Ch. 337 ; 60 L. J. C. 06. (a) Ante, p. 378. (6) Ecr eiir. Sorsbie v. Park, 12 M. & W. 157 ; Parke, B., Keightley v. TTatson, 3 Exch. 722 ; see Eccleston V. Clipsham, 1 Wms. Saund. 153 ; Pugh v. Stringfield, 3 C. B. N. S. 2 ; 4 ib. 364 ; 27 L. J. C. P. 34, 225 ; Saddon v. Ayers, 1 E. & E. 118 ; 28 L. J. Q. B. 105; Ld. Herschell, While v. Tyndall, L. E. 13 Ap. Ca. 277. PRINCIPLES OP THE LAW OF PARTIES. 381 nants for title, though expressed to he made with the grantees Chap. i. and with each of them, follow the interest and are joint and not several, the words " with each of them " being taken as surplusage ; and in a conveyance of several estates to several persons, covenants for title expressed in similar terms follow the interest and are several and not joint (c). In a grant of two annuities to two persons severally, a covenant with them to pay the annuities, though expressed as a joint covenant, was construed to be several according to the interests ; and the executor of one who had died was entitled to sue(rf). But a covenant with two covenantees to pay an annuity to one of them is a joint covenant, because there is a separate interest in one only ; and upon the death of one the covenant survives {e). Where money was advanced by a trustee upon a mortgage, to which the cestui qne trust was made a party, and the covenant to repay the money was expressed to be made with the trustee, " and also as a distinct covenant" with the cestui que trust ; it was held that the covenant was joint, because the trustee had no separate beneficial interest (/) . And it seems, generally, that if any of the parties named as covenantees have no separate interest, the covenant must be taken as joint in order to include them ; because it cannot be taken as separate in some only to the exclusion of others {g). So a bond or covenant or agreement made with two or more persons to pay a sum of money to one of them is joint ; and upon the death of the person in whom only the beneficial interest is, it survives to the other obligees (/*) . — If tenants in Covenants common join in making a lease for years reserving an entire tenants in rent, they must join in suing for the rent and upon the cove- <=°™™°"- nant to pay the rent ; but if they lease their respective shares with separate reservations of rent, they must sue separately (i) . Upon covenants to repair or for other matters concerning the (c) Slingsby's ease, 5 Co. 18 b ; see W. 659 ; see Wakefield v. Brown, 9 Mills V. Ladbroke, 7 M. & G. 218. Q. B. 209 ; Magnay v. Edwards, 13 {d) Withers v. Bircham, 3 B. & C. C. B. 479 ; 22 L. J. C. P. 170. 254. (A) Rolls Y. Yate,Yebr. 177; Chanter (e) Anderson v. Martindale, 1 East, T. Zeese, 4 M. & W. 295. 497. (») Litt. s. 316 ; Fowls v. Smith, 5 (/) Mopkinson v. Lee, 6 Q. B. 964. B. & Aid. 860; Tindal. C. J., Wilkin- Iff) Bradburne\. Botjield, 14 M. & son v. Sail, 1 Bing. N. C. 717. 382 PARTIES TO CONTRACTS. Paet II. Contracts with partners. Joint em- ployment of agent, &o. entire reversion of the premises, they must join in suing in respect of their common interest ; and upon the death of one of the tenants in common his representative must join with the survivors in suing for breaches of such covenants subsequent to the death {k). If tenants in common join in selling their respective shares, the contract to pay them the' purchase money is several in interest, and each may sue for his own share {I). But if persons having several interests in a subject of sale join in selling without apportionment of their interests in the price they must all join in suing upon the contract of sale (m) . — Contracts with partners are, in general, joint by reason of their joint legal interest in the partnership assets, and all the partners must join in suing at law; upon the death of one the right survives with the joint interest, and the survivor alone can sue ; but he is accountable in equity to the representative of the deceased partner (ii). Upon the sale of a partnership business, upon the terms of paying to each partner the amount of his separate share, each partner may sue alone (o) . Where partners in a business engaged an assistant upon the terms that he would not at any time carry on the same business at the same place, it was held that the partners had a joint interest in the restrictive agreement during the partnership, and several interests after dissolution of the partnership, with several rights of action for a subse- quent breach (/;). — Upon a joint employment of an agent all the principals, or the survivors of them, must join in suing (g). And " if two tenants in common make a bailifi, and one of them dieth, the survivor shaU have the action of accoimt, for the action was joint"(r). Where the owners of a ship in several shares jointly employed a broker to sell it, it was held (k) Kitchen v. jBucMey, T. Raym. 80 ; 1 Lev. 109 ; see Bradburne t. Botfield, 14 M. & W. 559 ; FaUij v. Adienhrooke, i Q. B. 197 ; Thompson V. Hakeivill, 19 0. B. N. S. 713; 35 L. J. 0. P. 18. U) Jaiws v. JSmery, 8 Taunt. 245 ; 6 Price, 533. (»h) Jung T. Phosphate Co., 3 C. B. N. S. 139; 37 L. J. C. P. 73. («) Mm-tinx. Crompe, 1 Ld. Eaym. 340 ; Hardwioke, L. C, JTcstY. Skip, 1 Ves. sen. 242 ; Guidon v. Sobson, 2 Camp. 302 ; see ante, p. 376. (o) Jones V. Sobinson, 1 Ex. 454. {p) Falmer v. MalM, L. K. 36 C. D. 411; 57 L.J. C. 226. (y) Martin t. Crompe, supra. ()•) Co. Litt. 198 a. PEINCIPLES OF THE LAW OF PAKTIES. 383 that they must all join to sue the broker for the purchase Chai'. i. money (s). "Where a master of a ship or a ship's husband contracts with the owners to make an account of the profits and divide the amount amongst the several owners, the interest and right of action of each owner is several {t) . The rights and liabilities of persons who have contracted EigMa jointly or severally, as between themselves, depend upon the parties relation in which they stand, and the agreement upon which "''"' *^* they have joined in the contract. Where two or more persons join in contracting debts for the benefit of all, as for goods supplied or for work done, though each may be liable for the whole to their creditor, yet as between themselves they would presumptively be bound to contribute rateably, and upon the death of one his representative would remain liable to the others ()<). Thus partners who have jointly contracted for the benefit of the firm, as between themselves, are liable and entitled according to their agreed shares in the partnership {x) . In contracts of guarantee and suretyship, the principal Principal debtor and the sureties are usually aU made debtors, joLutly ^" ^^^ ^' and severally, in equal degree to the creditor, who may re- cover the whole debt against all or any of them. But as between themselves, the principal is solely liable ; and if a surety is called upon by the creditor to pay any part of the debt, he becomes entitled to an indemnity in full from the principal debtor (y). As between the sureties, if one of them is called upon to pay more than his share of the debt, he becomes entitled to claim a rateable contribution from the others (s). Under the Judicature Acts, Order XVI. r. 48, in an action by the creditor against a surety the defendant may bring in as third party the principal debtor or a co- surety for the purpose of claiming indemnity or contribution ; (s) SatsallY. Griffith, 2 0. & M. (j/) Anie, p. 58 ; see Stirling, J., 679. Badeley v. Consolidated Bank, L. E. [t) Oioston T. Ogle, 13 East, 538 ; 34 0. D. 556. Servante y. James, 10 B. & C. 410. (z) Ante, p. 60 ; see Ward v. Meto («) Fer cur. Frior v. Sembrow, 8 M. Zealand Sank, L. R. 8 Ap. Ca. 755 ; & W. 889 ; see ante, p. 59. 52 L. J. P. C. 65. {x) See ante, p. 376, n. (}). 38 i PARTIES TO CONTRACTS. Pabt II. Eight of surety to securities. who may then defend the action, and is bound by the judg- ment («). Unless brought in as a party he is not bound by the proceedings, and may afterwards dispute the debt (b). A surety who is compelled to pay the debt, becomes entitled to the benefit of all the remedies and securities which the creditor has against the principal debtor, whether the surety knew of them or not at the time of contracting (c) ; including all securities which the creditor may have acquired since the time of contracting {d) ; and all securities which the creditor may have against a co-surety (c). A surety is also entitled to all securities which any co-surety may have acquired from the principal debtor (/). And a surety has also the right to require the creditor to sue the principal debtor as soon as the debt is due ; and, if he refuses, to pay it himself, and, upon giving indemnity for costs, to sue the debtor and enforce all securities against him in the right and name of the creditor {g) . — ^Upon the above principle a surety for the price of goods sold, on paying the price to the seller, becomes entitled to his lien upon the goods for the price ; and it seems also to his right of stoppage in transitu {h). The indorser of a bill as surety for payment by the acceptor is entitled to securities deposited by the acceptor with the holder (?) . A surety having paid a judgment obtained against himself and co-sureties may enforce it against the co-sureties for contri- bution in the name of the creditor without an actual assign- ment ; and he is entitled to all the priorities which the [a) Callender v. Wallingford, 53 L. J. a. B. 569. [b) Ex p. Young, L. R. 17 C. D. 668 ; 50 L. J. C. 824. [c) Deringv. Winchilsea, 1 W. & T. L: C. 6tli ed. 114 ; see TFard y. New Zealand Bank, L. K. 8 Ap. Ca. 765 ; 52 L. J. P. C. 65 ; Ex p. Salting, L. R. 25 C. D. 148 ; 53 L. J. C. 415 ; and see the Mercantile Law Amend* ment Act, 1856, s. 5. {d) Pearl v. Deacon, 1 De G-. & J. 461; 26 L. J. C. 761; Campbell \. Eothwell, 47 L. J. 0. P. 144 ; Forbes V. Jackson, L. R. 19 C. D. 615 ; 51 L. J. C. 690. («) See TFard v. Neto Zealand Bank, supra. (/) fiteelv. Dixon, L. R. 17 C. D. 825 ; 60 L. J. C. 591 ; Atkins v. Arce- decknc, L. R. 24 C. D. 709 ; 53 L. J. C. 102 ; Bcrridge v. Berridge, L. R. 44 C. D. 168 ; 59 L. J. C. 533. [g) Padioick v. Stanley, 9 Hare, 628 ; 22 L. J. C. 184 ; per ciir. Swire T. Redman, L. R. 1 Q. B. D. 541 ; see notes to Sees v. Berrinqton. 2 w' &T. L. C. 6th ed. 1106. (A) Imperial Bank v. London and St. Katherine Docks. L. R 5 C D 195 ; 46 L. J. C. 335. (i) Duncan v. New South TTales Bank, L. R. 6 Ap. Ca. 1 ; 50 L. J. C. 355. PRINCIPLES OP THE LAW OF PARTIES. 385 creditor would have had (k). And upon the same principle, Chap. I. in the case of the bankruptcy of the principal debtor the surety becomes entitled to stand in the place of the creditor to claim a dividend upon so much of the debt as he is liable for and has been called upon to discharge (/) ; unless, being surety to a limited amount only, he has expressly agreed to allow the creditor to keep the dividend upon the whole of his debt (;;*). — If the creditor releases or loses or depreciates any Loss of SGCUTltlG^ remedies or securities to which the surety would become entitled upon payment of the debt, the surety is discharged from liability to the amount by which such securities are lost or depreciated («) . If a security becomes valueless without default of the creditor, as a policy of insurance which the debtor allows to lapse, the surety is not discharged (o). Mere forbearance of the creditor to sue the debtor is immaterial, though the Statute of Limitations has run against it, because the surety himself might have paid ofE the debt and sued in name of the creditor {p). And the creditor is entitled to give up his securities to the trustee in bankruptcy of the debtor, in order to prove for his whole debt, without discharging the sureties (q). If the creditor has notice, at the time of contracting or Creditor afterwards, that persons who join as co-debtors to him stand rights of in the relation of principal and surety to one another, he is ^^^ ^' bound in equity to regard the rights of the surety so far as to abstain from any dealing with the principal debtor which might preiudicially affect the position of the surety. And if Surety dis- ,11., T 1 • j_ • 1 ,, •, , , chargedby the creditor under such circumstances agrees with the debtor alteration for any material alteration of the debt or duty guaranteed, ° "^ ' *y- as by extending the time of payment, varying the mode of (k) Me MoWyn, L. R. 33 C. D. 575 ; L. R. 17 C. D. 98. Bee post, p. 894. 55 L. J. G. 845; see Be Churchill, (n) Wulffv. Jay, L. R. 7 Q. B. Ii. R. 39 C. D. 174 ; 58 L. J. C. 135. 756 ; 41 L. J. Q. B. 322 ; see Taylor {I) Sobson v. Bass, L. R. 6 Ch. t. New South Wales Sank, L. R. 11 792 ; Gray t. Seclcham, L. R. 7 Oh. Ap. Ca. 596 ; 55 L. J. P. C. 47. 680 ■ 46 L. J. 0. 281 ; Ellis v. Em- (o) Rainbow v. Juggins, Xi. R. 6 Q. manuel, L. R. 1 Ex. D. 157 ; 46 L. B. D. 422 ; 49 L. J. Q. B. 718. J. Ex. 25. {p) Carter v. White, L. R. 25 C. D. (m) Midland Banking Co. \. Cham- 666 ; 54 L. J. 0. 138. bers, L. R. 4 Ch. 398 ; 38 L. J. C. (?) Sainbow v. Juggins, supra. 478 ; Ex p. National Provincial Bank, L. C C 386 PARTIES TO CONTRACTS. Part II. accounting or the like, without the consent of the surety and without reserving his rights, the surety is discharged {>•). In such cases "if it is not self-evident that the alteration is un- substantial, or one that cannot be prejudicial to the surety, the Court will not, in an action against the surety, go into an inquiry into the effect of the alteration " ; the surety being the sole judge whether he will remain liable (-s). But if the relation of principal and surety is first created by agreement between the co-debtors after the making of the joint contract, and without the concurrence of the creditor, it will not, merely by being brought to his notice, affect his rights against them as originally contracted {t). (r) ReesY. Barrington^ 2 Ves. jun. B^Q post^ p. 693. 540 ; 2 White & Tud. L. C. 6th ed. (s) Cotton, L. J., Solme v. Brun- 1106 ; Pooleij v. EarracUne, 7E. &B. skill, L. E. 3 Q. B. D. 495 ; 47 L.J. 431 ; 26 L. J. Q. B. 156 ; PoUk v. Q. B. 610. Everett, L. E. 1 Q. B. D. 669 ; 46 L. J. if) Swire v. Redman, L. E. 1 Q. B. Q. B. 218 ; see Coolce v. Petty, L. K. 6 D. 536. Q. B. 790 ; 40 L. J. Q. B. 281 ; and 387 Chapter II. PEINCIPAL, AND AGENT. Sect. I.— PRINCIPLES OF THE LAW OF AaENCT. PAGE Appointment of agent to contract — contracts imder seal — simple contracts 387 Presumptive agency — agency of wife — of servant — agency from necessity 388 Ratification of assumed agency — profession of agency — existence and capacity of principal — ratification relates bank to the contract 390 Extent of authority of agent — construction of written . authority — general and particular agents 394 Execution of agency — joint and several agents — directors of company 396 Form of execution — contracts under seal — simple contracts. . 399 Delegation of authority — agency not involving a discretion — employment of sub-agent 401 Revocation of agency — authority coupled with interest — notice of revocation — revocation by death — bankruptcy- powers of attorney 403 Indemnity of agent 408 Execution of agency in fraud of principal — agent account- able for profits of agency — commission and profit on sales — directors and promoters of companies 409 A PERSON capable of contracting may in general appoint Appoint- an agent to contract for him. It is not necessary that the agent, agent should be capable of contracting in his own right in order to bind the principal ; an infant or a married woman may act as agent ; but an agent must be capable of contract- ing in his own right in order to become responsible to his principal for the proper execution of the agency, so far as such responsibility depends upon contract («). — " The burden (a) Co. Lit. 52 a. See James, L. J., L. J. C. 756 ; King v. Bellord, 1 H. & Re D'Anffibau, L. R. 15 0. D. 246 ; 49 M. 343 ; 32 L. J. C. 646. CC2 388 PRINCIPAL AND AGENT. Paet II. Contracts under seal. Contracts not under seal. Statute of Frauds. Presump- tive agency. of proof is on the person dealing with anyone as an agent, through whom he seeks to charge another as principal. He must show that the agency did exist, and that the agent had the authority he assumed to exercise, or otherwise that the principal is estopped from disputing it" (b). In contracts under seal, the authority to execute for a party to the deed must be given by an instrument also under seal ; which is commonly called a power or letter of attorney (c) ; and if the deed is disputed, the authority must be proved as well as the execution under it ; but an admission of the prin- cipal that it is his deed dispenses with further evidence (d). The memorandum of association of a company is not a deed, though it has a statutory effect as a deed, and it may be executed by an agent without authority under seal (e). In contracts not imder seal, no particular form of appoiat- ment is generally necessary. By the Statute of Frauds, ss. 1 and 3, relating to the creation, assignment, and surrender of leases and estates and interests in land, it is required that agents shall be " thereunto lawfully authorised by writing." By the 4th and I7th sections relating to the contracts therein specified, though there is required a memorandum in writiag signed by the party or his agent, it is sufficient that the agent be " thereunto lawfully authorised " (/). An agency may be created in express terms, by writing or by parol ; or it may be presumed from the circumstances and conduct of the parties ; and " where one has so acted as from his conduct to lead another to believe that he has appointed someone to act as his agent and knows that that other person is about to act on that behalf, then, unless he iaterposes, he wiU in general be estopped from disputing the agency, though in fact no agency really existed {g). Thus, if a person sends goods to an auction room, or to a repository for sale, or to a (4) Ld. Cran-worth, Fole v. Leash, 33 L. J. C. 162 ; Parke, B,, Thomas v. Edwards, 2 M. & W. 216. (c) Co. Lit. 52 a; Bm-keUy v. Hardy, 5B. &C. 355. SeeiJosi!, p. 400. (d) Tupper v. Foulkes, 9 C. B. N. S. 797; 30 -L. J. C. P. 214; ante, p. 114. {e)Se TThitky, L. R. 32 C. D. 337; 55 L. J. C. 540. (/) See ante, p. 237. iff) Ld. Cranwortli, Pole v. Leask, 33 L. J. C. 162. PRINCIPLES OF THE LAW OF AGENCY. 389 factor or broker whose business it is to sell such s-oods, he is Ch. II. Sect I presumed to authorise a sale (h). But a wharfinger or ware- '--^ houseman whose business is the custody of goods only has no such apparent authority to sell goods deposited with him (^') ; and the deposit of goods at a warehouse in the name of a person as apparent owner would not give a presumed authority to sell (Ja). So an authority or agency may be presumed from From previous dealings of the principal ; as the paying of bills or dealS".^ cheques which purported to be signed by an agent on his behalf (/) ; or buying and selling goods through a person professedly acting as his agent ; and in such cases the agency is presumed to continue until notice is given to the con- trary [m). An agency may be presumed or implied from the relation Agency of the parties ; as in the case of a wife who has a presumptive authority during cohabitation to act as agent for the husband in domestic matters ; and when separated under certain cir- cumstances is invested by law with an authority to pledge his credit for her maintenance (n). — So the relation of partners imports a general agency in each partner with reference to the partnership business (o) . — In the mere relation of master Agency of and servant there is no general authority in the servant to bind the master by contracts on his behalf ; so that " if a man sends his servant with ready money to buy goods, and the servant buys upon credit, the master is not chargeable." But the master is bound by his usual mode of dealing with others through his servant ; so " if a servant usually buy for his master upon credit, and takes up things for his own use in his master's name, the master is liable " {p). And the master (h) Ellenborough, 0. J., Pichering 589 ; Summers v. Solomon, 7 E. & B. V. Busk, 16 East, 43. 879 ; 26 L. J. Q. B. 301 ; Pole v. ii) Cole T. North Western Bank, L. Leask, 33 L. J. C. 155 ; Scarfs. Jar- E. 10 C. P. 354. dine, L. R. 7 Ap. Ca. 345 ; 51 L. J. {k) Dyer v. Pearson, 3 B. & C. 38. 0. 612. \l) Freicott v. Flinn, 9 Bing. 19 ; (n) See post, p. 493. LleuelbjuY. Winekworth, 13 M. ftW. (o) See post, p. 451. 598 ; see Davidson v. Stanley, 2 M. & (p) Holt, C. J., 1 Shower, 95 ; G. 721 ; Bogarth v. Wherley, L. K. Stubbing v. Seintz, 1 Peake, 66 ; 10 C. P. 630 ; 44 L. J. C. P. 330. Riisby v. Scarlett, 3 Esp. 76 ; Southby (m) Hazard v. Treadwell, 1 Str. v. Wiseman, 3 Keb. 625; Hazard v. 506; Trueman y. loder, 11 A. & E. Treadu-i II, Summers y. Solomon, supra. 390 PEIKCIPAL AND AGENT. Past II. Agency implied from necessity. Ratifica- tion of assumed agency. would be bound by receiving goods bought for him on credit, with notice of the credit {q). In some exceptional cases an authority is implied in law from the necessity of the occasion to contract on behalf of the person whose interest is concerned. The master of a ship, upon a necessity arising during the voyage, becomes autho- rised to pledge the credit of the owner for repairs, and for such supplies and services as are necessary for the prosecution of the voyage ; and even to sell the ship or the cargo (r). And a common carrier by land, upon an emergency happen- ing, becomes agent by necessity for the owner to take care of the goods, and to pledge his credit for that purpose (s). The exigency of a railway accident was held not to authorise a stationmaster of the company to engage a surgeon to attend wounded passengers ; and the surgeon having attended under such circumstances could not recover his charges from the company [t). But the general manager of a railway company has authority to engage a medical man on behalf of the com- pany, to attend a servant of the company injured by an accident on their railway («). — By the law merchant, upon the necessity of the case any person may accept or pay a bill of exchange supra protest, for the honour of the drawer, and may charge him with indemnity as if he had given authority to do so ix) . Where a person professes to contract as agent for a princioal without having authority, the principal is not boimd ; but by a subsequent ratification of the authority he may become bound, to the same extent and with the same consequences as if the contract had been originally made with his authority : as expressed in the maxim, Omnis ratihabitio rctrotrahitur et man- dato ceqviparatur {>/). By acting upon the contract, and in some cases by mere acquiescence or not disavowing it within (2) Soutton V. HiUersden, \ Ld. Kaym. 225 ; 3 Salk. 234. (r) See post, p. 449. (s) Great Northern My. v. Swajfield, L. R. 9 Ex. 132 ; 43 L. J. Ex. 89. [t) Cox V. Midland Ry., 3 Ex. 268. (h) JTalker v. Great TTesiern Sy., L. R. 2 Ex. 228 ; 36 L. J. Ex. 123. (.■!-■) Bills of Exchange Act, 1882, ss. 66—68. (i/) Per ear. Bird t. Sroicii, i Ex. 798 ; and see per car. TT'ikon v. Turn- man, 6 M. & Gr. 242. PRINCIPLES OF THE LAW OF AGENCY. 391 a reasonable time, he is taken to ratify it (s) ; but acquiescence Ch. ii. and ratification must be based upon a full knowledge of the — ^ facts (a). — The principal may also claim the benefit of a con- tract professedly made on his behalf ; and though it was made without his knowledge (6). And ia the case of a policy of insurance made without authority on behalf of another, and a loss supervening, the principal may claim the benefit of the policy after notice of the loss (c). — The subsequent ratification Eatifioa- of the agency is sufficient to satisfy the Statute of Frauds, statute of which requires signature by the party or " by his agent there- ^'^^^'^• unto lawfully authorised." And it is said that " the subse- quent ratification 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). Subsequent ratifica-, tion is sufficient and dispenses with proof of prior authority, though the prior authority is required to be given in writing, or under seal (e). The principle of ratification only applies where the agent Profession has professed to contract for the person who afterwards rati- ° '^s " y- fies (/). "Where the agent, in a written agreement, professed to contract on behalf of a married woman, it was held that the husband could not by a subsequent ratification acquire any right under it, because he was not named as the party for whom the agent acted (g). Hence the principle of rati- fication does not apply to a forged signature, because the (z) Biffg V. Stronff, 3 Sm. & G-. 592 ; Co., L. E. 1 Q. B. T>. 757. Fowell V. Smith, L. R. 14 Eq. 85 ; 41 (d) Best, C. J., Madran v. Dunn, L. J. C. 734. See Re Portuguese 4 Bing. 727 ; ante, p. 237. Copper Mines, L. E. 45 C. D. 16 ; 50 (e) Tupper v. Foulkes, 9 C. B. N. L. J. C. 813. S. 797 ; 40 L. J. C. P. 214 ; ante, {a) Per cur. De Bussche v. Alt, L. p. 388. E. 8 C. D. 313 ; per cur. Banque (/) Wilson v. Tumman, 6 M. & Gr. Jacques Cartier T. Banqued'Mpargne, 236; Parke, J., Vere v. A-shhy, 10 L. E. 13 Ap. Ca. 118 ; 57 L. J. P. 0. B. & C. 298. See Morris v. Satierg, 46. L. E. 22Q. B. D. 614; 58L. J. Q. (S) Jncona v. Marks, 7 H. & N. B. 275 ; iTooUen v. Wright, 1 H. & 686 ; 31 L. J. Ex. 163 ; post, p. 393. 0. 5.54 ; 31 L. J. Ex. 513. (e) Eagedorn v. Oliverson, 2 M. & (g) Saunderson v. Griffiths, 5 B. & S. 485 ; Williams v. North China Ins. 0. 909. 392 PRINCIPAL AND AGENT. Part II. Existence and capa- city of principal. Principal ascertained by interest. forger represents the signature to be that of the principal himself without any profession of agency {h) ; but the per- son whose name is signed may adopt the signature as his own and accept the liabUity («'). It is also necessary that the professed principal should be in existence and ascertained at the time of the contract made, in order that the ratification of a then existing agency may be possible ; a contract purporting to be made on behalf of a proposed company not then in existence is void and incapable of ratification by the company as afterwards incorporated {k). And the contracts of promoters on behalf of a proposed com- pany, to pay the preliminary expenses of formation, cannot be made binding by the company when formed by mere rati- fication, without a new contract to that effect (/). But the special Act of the company may authorise the payment of such expenses and may render the payment obligatory (m) . — The principal must also be capable of making the contract in order to be able to ratify it ; and the contract must be one within his capacity at the time it is made (»). — But in some cases it is sufficient if the agent professes to act for some existing capacity or interest, which is recognized in law, though the person to fill it is not ascertained until after- wards ; as in the case of the administrator of an intestate's estate, whose title upon appointment relates back to the death, and who therefore can ratify a contract made pro- fessedly on behalf of the estate before his appointment ; but he is not bound to do so (o) . And the agency of a property continued after the death of the owner professedly on behalf (A) Brook V. Sook, L. R. 6 Ex. 89 ; 40 L. J. Ex. 50 ; Martin, B., dis- sentiente. (i) Ld. Blackburn, McXenzie v. British Linen Co., L. R. 6 Ap. Ca. 99. See Bills of Exchange Act, 1882, 8.24. (k) Kclner v. Baxter, L. K. 2 C. P. 174 ; 36 L. J. 0. P. 94 ; Ee Korth- umberland Hotel Co., L. R. 33 C. D. 16 ; Howard v. I'atciit Ivory Co., L. R. 38 C. D. 156; 57 L. J. C. 878. (;) Scott T. Ebury, L. R. 2 C. P. 255 36 L. J. 0. P. 161 ; SpWer v. Paris Skating Rink, L. R. 7 0. D. 368 ; Re lEmprrss Engineering Co., li, R. 16 CI). 125. (m) JUel/iado v. Porto Alegre Ry., L. R. 9 0. P. 503 ; 43 L. J. C. P. 253 ; see ante, p. 336 ; post, p. 523. [n) Re Portuguese Copper' Mines, L. R. 45 C. D. 16 ; 68 L. J. C. 813 ; see Banque Jacques Cartier v. Banque d'Eparqne, L. R. 13 Ap. Ca. Ill ; 67 L. J. P. 0. 46. (o) Foster v. Bates, 12 M. & W. 226 ; Re Watson, L. R. 19 Q. B. D. 234 ; 56 L. J. Q. B. 619. PRINCIPLES OF THE LAW OF AGENOy. 393 ^of the heir, may be ratified by the heir upon becoming ch. ii. ascertained, eo as to entitle him to claim rents previously ^'^' '" collected (p). An executor may ratify an act done professedly on behalf of the estate, as having title by the will from the death of the testator((?). And the trustee of a bankrupt, ■whose title when appointed vests by relation from the adju- dication of bankruptcy, is enabled to ratify an act done on behalf of the estate before his appointment (r). — Upon the insurance same principle, a policy of insurance may be made on be- of person half of persons interested, who are not named at the time of interested. effecting the insurance, but who are ascertained through the interest insured (s). But the parties must be interested within the meaning of the policy and at the time when it was made (t). The ratification relates back to the original making of the Eatifica- contract and confirms it from that time ; and though the back to other contracting party before the ratification has withdrawn '""'*^*''*- his consent (ti). And the ratification will support an action previously brought upon the contract in the name of the principal, though without his knowledge ; as where bills were indorsed to a person and delivered to an agent who received them on his behalf and commenced an action upon them in his name as indorsee, which he adopted and ratified pending the action (x). But before ratification takes place, the unau- thorised contract may be rescinded by mutual agreement of the agent and the other contracting party, leaving nothing for a subsequent ratification to operate upon (y). — The prin- cipal in ratifying the contract must accept it in its integrity, he cannot ratify part and repudiate the rest (s). And by afiBrming the agency he becomes liable to the agent for his {p) Zyell -1. Kennedy, L. E. 14 C. 756 ; 31 L. J. C. P. 210. D. 437 ; 59 L. J. Q. B. 268. (m) Bolton v. Lambert, L. K. 41 C. (y) Willes, J., Kelner v. Baxter, D. 295 ; 58 L. J. C. 426. See He L. B. 2 C. P. 184 ; 36 L. J. 0. P. 98. Portuguese Copper Mines, supra. ()■) See Wilson v. Boulter, 2 Str. [x) Ancona v. Marks, 7 H. & N. '859; Bull v. Piclcersgill, 1 B. & B. 686; 31 L. J. Ex. 163 ; mite, p. 391.' 282. («/) Walter v. James, L. K. 6 Ex. (») South V. Thompson, 13 East, 124 ; 40 L. J. Ex. 104. '274 ; lucena T. Crawford, 2 B. & P. (z) Wilson v. Boulter, 2 Str. 859; N. K. 269 ; see ante, p. 369. Hovil v. Back, 7 East, 166 ; Brewer (t) Watson V. Swann, 11 C. B. N. S. v. Sparrow, 7 B. & C. 510. 394 PRINCIPAL AND AGENT. Past II. commission and for his charges in carrying out the con- tract (a) . Extent of authority. Construc- tion of written authority. Powers of attorney. The nature and extent of authority of an agent is defined either by the express terms in which it is given, or hy the circumstances or conduct from which it is implied. — The construction of a power of attorney and of all written autho- rities 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 {h). An authority given in writing is presumptively contained exclusively in the writing ; and the general rule applies that no extrinsic evidence is admissible to vary the writing (c). — Powers of attorney are construed with reference to the special purpose for which they are expressed to be given ; and accordingly terms of general authority are taken as restricted to that purpose {d). A power of attorney in general terms, without limitation of time, was construed as limited by the recital that the principal was going abroad and desirous of appointing an attorney during his absence (e). A power of attorney given abroad to contract in England must be con- strued, as to the authority given, according to English law (/). A general power to receive all payments for the principal does not authorize the indorsiag and negotiating on his behalf of bills received in payment {g). A power of attorney given by an executor in general terms to act in the administration of the testator's estate does not authorize the accepting of bills for debts due from the testator, so as to make the exe- cutor personally liable {h). But "an authority given by a power of attorney necessarily includes medium powers, though (a) Keay y. Fenwiclc, L. R. 1 C. P D. 745 : Bristow v. TFhitmore, 9 H L. C. 391; 31 L.J. C. 467. (i) Berwick v. Sorsfall, 4 C. B. N S. 450 ; ante, p. 185. (e) Eogg v. Snaith, 1 Taunt. 347 see ante, p. 153. {d) Altwood y. Munnings, 7 B. cSfc 278 ; Harper v. Godsell, L. E... 5 Q B. 442 : 39 L. J. Q. B. 185. (e) Danhxj v. Coutts, L. B. 29 C. D. 500; .54 L. J. C. 577. (/) Chatenay v. Brnziliaii Tel. Co., (1891) 1 Q. B. 79; 60 L. J. Q. B. 295. (17) Sogy V. Siiaith, 1 Taunt. 347 ; Murray v. Bast India Co., 5 B. &Ald. 204. [h) Gardner v. BailUe, 6 T. R. 591 ; see Howards. BalUh, 2 H. Bl. 618. PRINCIPLES OF THE LAW OF AGENCY. 395 they are not expressed, that is, all the means necessary to be Ch. II. used in order to obtain the accomplishment of the principal '—^ power " (i). A power of attorney authorising the agent " to charter a ship, and generally to act for and represent the owners " was held to authorise making a charterparty with a warranty of the ship's class (7c). Agents are distinffuished in respect of authority as general General J i- 1 ■ -I i. mi, 4! •^ ^ . and par- and particular or special agents. The former expression tioular includes brokers, factors, partners, and all persons employed ^^^^ in a business or filling a position of a generally recognized character, the extent of authority being apparent from the nature of the employment or position ; the latter denotes an agent appointed for a particular occasion or purpose, limited by the appointment (l). A general agent has, in relation to the party contracting with him, the full apparent authority due to his employment or position ; and the principal is bound by his acts within that authority, notwithstanding he has imposed special restrictive limits which are not known to the other contracting party. A particular or special agent is agent for the occasion only, and has no apparent authority beyond the limits of his appointment; and the principal is not bound by his acts in excess of those limits, whether the other contracting party knew of them or not{m). For example, the servant or agent of a horse dealer employed in the ordinary conduct of the business of horse dealing, may bind his principal by a sale with a warranty, by reason of his apparent general authority to act in the business ; and though he has express orders, unknown to the buyer, not to warrant («) . But the servant or agent of a person who does not carry on the business of horse dealing, employed on a particular occasion to sell a horse, cannot bind his prinbipal by a warranty without a special authority ; the buyer would («) .Per cur. Soward v. BailUe, 2 H. 2 0. P. 536 ; 36 L. J. C. P, 204 ; Bl. 619. -E^ p- Dixon, L. B. 4 C. D. 133. (k) South V. Maemillan, 2 H. & C. Byles, J., Hey worth v. Knight, 17 750 ; 33 L. J. Ex. 38. B. N. S. 298 ; 33 L. J. C. P. 303. (?) See post, p. 433. {n) Howard y. Sheward, L. R. 2 0. (m) Whitehead v. Tuckett, 15 East, P. 148 ; 36 L. J. 0. P. 42. 400 ; see Eileij v. Fackington, L. K. 396 PIUNCIPAL AND AGENT. Past II. take a warranty subject to the risk of proving that the prin- cipal had in fact given authority to warrant ; and if the seller should repudiate the warranty of his agent the sale would be void (o) . So if a person sends an agent to buy a horse on the terms of receiving a warranty, and the agent accepts the horse without a warranty, or with an imperfect warranty, there is no sale to bind the principal, and the horse may be returned (^j). — Upon the same principle, an agent employed to manage a business, to the carrying on of which it is incidental to draw and accept bills, binds the principal by signing bills in his name although he is privately instructed not to do so (q). But an agent expressly instructed to get a particular bill discounted without indorsement, can- not bind his principal by an indorsement (r). Upon a similar principle a letter of credit giving a general power to raise money to a stated amount charges the principal with money raised by bills drawn upon him beyond that amount from a person who had no notice of former advances («) . — A sig- nature purporting to be " by procuration," is held to be notice of a special authority, and the holder of such a bill must prove the authority and the proper exercise of it in order to recover against the principal {f). Execution In the execution of an agency the authority must in general agency. ^^ gtrictly foUowed ; and the principal is not bound by acts of his agent beyond the scope of his authority [ii). The master of a ship, who has a general authority to receive goods and sign bills of lading for goods received, cannot bind the shipowner by signing bills of lading for goods not received (x) ; nor by statements in the biU of lading respecting the quality (o) Smdi/ V. Todd, 9 C. B. N. S. 766 ; Sfaffff v. Elliott, 12 C. B. N. S. 692 ; 30 L. J. G. P. 223 ; see Fayne 373 ; 31 L. J. C. P. 260 ; see Charles T. Leconfield, 51 h. J. Q. B. 642. v. JJlackwell, L. R. 2 C. P. D. 151 ; (p) Jordan v. Norton, 6 M. & W. 46 L. J. C. P. 368. This rule is 155. enacted in the Bills of Exchange Act, (q) Edmunds t. Bushcll, L. R. 1 Q. 1882, s. 25. B. 97 ; 35 L. J. Q. B. 20. (m) Byles, J., Farkes v. FrescoU, (r) Fenn \. Sarrison, 3 T. R. 757. L. R. 6 Ex. 182 (s) WithingtonY. Herring, b'Buig. (x) Grant y. Nonc((ij,\0O.'B.&Q5; 442. 20 L. J. C. B. 93 ; Subbersty v. JTard, [t) Alexander v. Mackenzie, 6 0. B. 8 Ex, 330 ; 22 L. J. Ex. 113. PRINCIPLES OF THE LAW OP AGENCY. 397 of goods reoeiTed ; suoL. acts teing beyond the general and Ch. II. apparent authority of a master of a ship (y). For the same '■ — reason the charterer's agent for providing cargo at the port of loading cannot bind his principal by contracting with the master of the ship to take a different cargo or for a different Toyage than that stipulated in the charterparty (s). So, a ■wharfinger is not bound by a receipt for goods given by his agent, where no goods were in fact delivered into his custody (fl) . But it is sufficient if the execution of the agency is sub- Substantial 1 n „ . execution. stantially within the authority given : as a purchase of 94 bales of cotton by a commission agent in execution of an order to buy ,100 bales ; or a purchase of 400 tons of sugar under an order to buy 500 tons ; the state of the market at the place and time not admitting of a purchase of the whole quantity required at once, nor of completing the quantity (b). And it is sufficient if the contract made by the agent be in effect the same as if made in the precise words of the authority, where the omissions or variations can be supplied and reconciled by the incidents annexed to the contract by the usages of the trade (c) . — If an authority is given in such Ambi- ambiguous terms as to admit of different meanings, and Authority, the agent bond fide acts upon it in one meaning, the principal cannot repudiate the act as unauthorised because he intended the order to be taken in another meaning (of). — "A broker Varying with an undisclosed principal may vary the terms of payment ^''"^ '""' after the sale is completed. The principal may intervene at any time before payment, but not to rescind what was done before. But if a man sells goods acting as a broker, the moment the sale is completed he ia functus officio. The terms of the contract cannot then be altered except by the authority («/) Cox T. Bruce, L. E. 18Q. B. D. J. Q. B. 201. 147; 56L. J. Q.B. 121; iJosi, p. 447. (cj Meyworth y. Knight, 17 0. B. (z) Sickens v. Irving, 7 0. B. N. S. N. S. 298 ; 33 L. J. C. P. 298 ; see 165 ; 29 L. J. C. P. 25. ante, p. 164. {«) Coleman v. Riches, 16 C. B. 104 ; {d) Ld. Chelmsford, Irelandy. Zii'- 24 L. J. C. P. 125. ingston, L. R. 5 H. L. 416 ; Chitty, J., (J) Johnston v. Kershaw, L. R. 2 Loring t. Davis, L. K. 32 0. D. 631 ; Ex. 82 ; 36 L. J. Ex. 44 ; Ireland r. see Boden v. French, 10 C. B. 886 • Livingston, L. B. 5 H. L. 395 ; 41 L. 20 L. J. C. P. 143. 398 PRINCIPAL AND AGENT. Paetii. of the prmoipar'(e). And an agent professing to act for a principal, but without authority, may rescind or vary the contract at any time hefore the principal intervenes to ratify Time of i]^q contract (/). — An agency must be executed within the execution. ^"^ ' o j ■ « ^ i . time limited, if any, for the exercise oi the authority. A general authority given to a broker in a particular trade may be limited by the usage of the trade to the day on which it is given ; and a contract afterwards made is not binding upon the principal (g). Joint and If a power of attorney or other authority to contract be given to several persons jointly, they must all join in the execution ; if it be given to them jointly and severally, they must either all act jointly, or each act severally, but some only cannot join in acting (A). And therefore an authority which is exclusively joint will not survive upon the death of one of the persons to whom it is given ; unless it is also given to the survivors ; and unless it is a power incident to a joint interest which survives with the interest («') . Where two persons were appointed to fill the office of clerk to the trustees of a turnpike road with power to sign contracts for letting the tolls ; it was held that they must both join in executing such a contract (A'). Where the provisional committee of a projected railway company appointed eight persons as a managing committee with authority to carry out the scheme, without giving authority to any less number, it was held that a contract made by six only of the managing committee was not binding upon the principals (l). Where a statutory board delegated their powers to a committee under their Act, it was held that the committee must act jointly and could not apportion the powers between them, nor act validly by less than their whole number (w) . But a power of attorney (e) Ellenborough, 0. J., Blackburn L. J. 0. 624. T. Schoks, 2 Camp. 343. (j) Co. Lit. 113 a, 181 b ; Jones v. (/) Walter v. James, L. R. 6 Ex. Ftigh, 2 Salk. 465 ; Toionsendr. TTll- 124 ; 40 L. J. Ex. 104 ; see ante, son, 1 B. & AJd. 608. p. 393. {li) Bdl Y. Ifi.foii, 9 Bing. 393. (g) Dickinson v. Lilwall, 4 Camp. See Miles y. Bough, 3 Q. B. 871. 279. {I) Brown t. Andrew, 18 L. J. (h) Co. Lit. 181 b ; Hargrave's Q. B. 153. note (2) to Co. Lit. 62 b. See Keke- (m) Cook v. TTard, L. R. 2 C. P. D. wich, J., Re Liverpool Stores Ass., 59 255 ; 46 L. J. 0. P. 564. PRINCIPLES OF THE LAW OF AGENCY. 399 given to fifteen persons, jointly and severally, to execute such Ch. il. policies as they (»• any of them, should think proper, was con- '—^ strued to be co-extensive with the discretion, so that an execution by four only was valid in). — ^Du-ectors are appointed J^"o^°" and empowered according to the constitution of the company, panies. and all must attend board meetings ; unless a less number is expressly authorised and required to act for the company (o) . If a less number than is so required attend a board meeting they cannot make a valid contract (|j). Where the constitu- tion of a company requires that there shall be a certain number of directors at least, any less number, though the whole number then existing, cannot bind the company by allotting shares or executing contracts on their behalf {q) ; unless it is expressly provided that in case of vacancies the continuing directors shall have power to act(r). Where directors are required to act jointly, they cannot validate a contract by executing it some on one occasion and some on another occasion (s). — The same priaciples apply to official liquidators appointed under the Companies Act, 1862, s. 133 it) . And liquidators in whom property is vested must all join in conveying the legal title (m). Where an agent has authority to do any act he ought to Form of do it in the name of the principal who gave the authority («), '^^^^ °"' — ^In contracts made by indenture inter partes under a power contracts of attorney, the principal must be named as a party to the '°^^^^ ^^^^■ deed, otherwise he could not sue or be sued upon it ; and the deed must be signed and executed in the name of the prin- (») Guthrie v. Armstrong, 5 B. & (s) H'Arcy v. Tamar Ey. Co., Aid. 628. L. R. 2 Ex. 158 ; 36 L. J. Ex. 37 ; (o) Re Fortitguese Copper Mines, but see Re Bonelli's Telegraph Co., . L. R. 42 0. D. 160 ; 58 L. J. C. 813. L. E. 12 Eq. 246 ; 40 L. J. C. 567. {p) Ridley v. Flymouth Grinding (t) Ex p. Birmingham Bk., L. R. Co., 2 Ex. 711. 3 Ch. 651 ; 37 L. J. C. 905 ; Ex p. (q) Eirk v. Bell, 16 Q. B. 290; London § S. W. Bk., 36 L. J. C. " y's case, L. R. 16 C. D. 681 ; 807 ; Ex p. Agra f Masterman's Bk.. 50 L. J. C. 167; see Thaines Baven L. R. 6 Ch. 206; Re Metropolitan Bk., Co. y. Rose, 4 M. & G. 552. L. R. 2 Ch. D. 366 ; 45 L. J. C. 525. . (>•) York Tramway Co. v. Willows, [u) Re Ebsworth ^ Tidy's Contract, L. R. 8 Q. B. D. 685 ; Re Scottish L. E. 42 C. D. 23; 58 L. J. C. 665. Fetrolmm Co., L. R. 23 0. D. 413; {x) Coombe's case, 9 Co. 76 b; per 51 L. J. 0. 841. cur. White v„ Cuylcr, 6 T. R. 176. 400 PRINCIPAL AND AGENT. PaetII. cipal (y). The proper and usual form of executing suolideed is by signing " A.B. (the principal) by CD. (the attorney) ;" but the form, " C. D. for A. B." is sufScient, or any equiva- lent form in which the name of the principal is signed as such (a), and the name of the principal only may be signed •without referring to the agency {a). A person who is named as party to a deed and executes it in his own name is per- sonally bound, though he is described in the deed as acting and covenanting on behalf of another named person {b). By the Conveyancing Act, 1881, s. 46, " the donee of a power of attorney may execute or do any assurance, instrument or thing in or with his own name or signature and his own seal, where sealing is required, by the authority of the donor of the power," as effectually " as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof." But it must appear on the face of the instrument that he executes as attorney (c). The Court will not compel a purchaser to take a conveyance executed by attorney {d) . In simple contracts the agent may contract in the name of his principal and is then himself no party to the contract ; as by signing the name of the principal only ; or by signing his own name " by procuration," or as agent for the named prin- cipal (e) . Where both names are mentioned in the contract it may be a question whether the one or the other or both are parties to the contract ; and the question depends upon the construction of the terms with reference to the circimi- stances (/). — Also in simple contracts an agent may contract in his own name, without disclosing his principal, in which case no question arises as to the party on the face of the contract ; but the principal may be entitled to intervene to claim the rights of the contract, and may be charged with the liabilities ; except with bills of exchange and promissory notes, Simple contoacts, Non- dis- closure of principal. {!/) Ante, pp. 368, Z&%; post, p. 412. (z) Wilks V. Back, 2 East, 142; see Tupper v. Foulkea, 9 C. B. N. S. 797; SOL. J. C. P. 214. («) Be WhitUij, L. B. 32 0. D. 337: 55 L.J. C. 540. (S) Appleton v. Sinks, h East, 148. (c) Cotton, L. J., Me TFhitley, L. R. 32 C. D. 338. {d) Hardwioke, L. C, MitcheU v. Ncale, 2 Ves. sen. 681 ; 2^061 v. Weston, 6 Madd. 50. («) See ante, p. 396. (/) See post, p. 412. PRINCIPLES OF THE LAW OF AGENCY. 401 ■which by the law merchant are restricted in their effect to Ch. ii. . Sect. I. the persons appearing to be parties on the face of the instru '—^ ment (g). The non-disclosure of a principal is in general immaterial to the Talidity of the contract ; but it may become material by the special circumstances of the case ; as where it is known to the contracting agent that the other party has a personal objection to dealing with his principal, or that he has special intention of dealing with himself as the apparent principal {h). — A misrepresentation by a person that he is Misrepre- contracting for a principal, when in fact he is actiag for him- of prin- self , may be material : as where the other contracting party "^* ' has a set-off against the supposed principal which induces the contract (i) ; or where a solicitor purchases from his own client under a representation that he is acting for a third party (k) . But where the personality of the contracting party is not a material element in inducing the contract, such a misrepre- sentation would not affect its validity {1} . It is a general rule that an agent cannot delegate his Deiega- authority to another without a special authority to do so, authority, as expressed in the maxim " delegata potestas non potest dele- gari"; and this rule applies strictly wherever the agency involves a trust or discretion in the agent, for the exercise of which he is personally selected (m). A factor or broker employed to sell goods for his principal cannot delegate his commission to another ; and a sale by a sub-agent would be wrongful and void agaiast the principal, who might recover the goods or their value, without regard to any dealings between him and the original agent (») ; or he might affirm M See post, pp. 419, 420. {[} Fellowes v. Gicydyr, I M. & K. (A) Eyre t. Popham, 1 Bro. C. C. 83 ; ante, p. 21 ; Smith v. Wheat- 95, n. ; Knight-Bruce, V.-C, Nel- croft, supra. thorpe v. Holgate, 1 CoU. C. C. 220 ; \m) Per cur. Cobb v. BecTce, 6 Q. B. Smith V. Wheatcroft, L. R. 9 C. D. 936 ; Williams, J., Hemming \. Sale, 223 ; 47 L. J. 0. 745. 7 0. B. N. S. 498 ; see Wray v. Kemp, (i) Boulton T. Jones, 2 H. & N. 564 ; L. R. 26 0. D. 169. 27 L. J. Ex. 117 ; post, p. 429. {n) Solly t. Bathbone, 2 M. & S. (A) Luddy t. Peard, L. E. 33 C. D. 298 ; Cockran v. Irlam, ib. 301. 500 ; 55 h. J. 0. 884. L. D D 402 PRINCIPAL AND AGENT. Pabt II. Agency'not involving discretion. Act of signing. Statutory acts. Employ- ment of sub-agent. the transaction and claim any profit made by tlie sub-agent, beyond his proper remuneration and charges (o). A consign- ment of goods to two factors jointly to sell imports that one of them may delegate the commission to the other ; but not so as to discharge his liability to account, and to answer for the acts of the other, without an express consent of their principal to that effect {p). But if the agency involves no exercise of discretion and it is immaterial whether it be done by one person or another, or if the discretionary part of the agency is exercised by the party to whom it is entrusted, a mere act, as the signing of a name, may in general be delegated to and performed by the hand of another ; as where a creditor under a composition deed telegraphed to his agent to sign the deed, who in turn required his clerk to sign it, the signature was held to be that of the principal {q) . And an agent having authority to draw bills or notes may direct another person to sign the name of the principal upon a particular instrument of that kind [r) ; as where a clerk of a firm signs for the firm in the common course of business (s). — A statute may require a personal signature by the hand of the party himseK ; as Lord Tenter- den's Act, 9 Geo. IV. c. 14, s. 6, which requires that any representation made concerning the character of another shall be " made in writing signed by the party to be charged therewith " {t). But unless restricted by statute a party may sign by an agent by the general rule of common law (it). An agent employed for a particular business is impliedly authorised to employ such qualified sub-agents as are generally required in that business ; as the brokers or auctioneers required in selling different kinds of property, stock brokers, insurance brokers, valuers and the like; and in such case (o) DeBussche v. AU, L. B. 8 C. D. 286; 47 L.J. C. 387. (p) Godfrey v. Saunders, 3 Wils. 73 ; see per cur. ib. 111. [q) Johnson v. Ascnion, L. E. 4 Ex. 107 ; 38 L. J. Ex. 76 ; see Brown v. Tombs, (1891) 1 Q. B. 253; 60 L. J. Q. B. 38. (r) Lord v. Ball, 8 C. B. 627. (s) Ex p. Sutton, 2 Cox, 84 ; see Ex p. Birmingham Banking Co., L. R. 3 Ch. 651 ; 37 L. J. 0. 905. (0 Ante, p. 210 ; Blackburn, J., The Queen v. Kent, L. R. 8 Q. B 307 ; 42 L. J. M. C. 113 ; Swift v. Jewshury, L. R. 9 Q. B. 301 ; 43 L. J. Q. B. 66 ; see Wilson v. Willani, L. R. 6 Ex. D. 155 ; 49 L. J. Ex. 437. (m) Me Whitley, L. R. 32 C. D. 337 : 55 L. J. C. 540. PKINCIPLES OF THE LAW OF AGENCY. 403 " the sub-agent becomes as responsible to the principal for the Ch. ii. due discharge of the duties of his employment as if he had — — '^- been appointed agent by the principal himself "(*). But the principal cannot charge a sub-agent with money received to his use merely by reason of his having received it to the use of his employer, whose duty it was to account for it as agent of the principal {y) . The sub-agent, after notice of the principal, can acquire no rights against the agent in dero- gation of the rights of the principal; as a right of set off against the agent (s) . But the sub-agent retains the rights incident to his employment as against the principal notwith- standing the dealings between the latter and his agent ; as the lien of an insurance broker for premiums and commissions upon policies effected by him, which cannot be defeated by payment of the principal to his agent (a). — Upon the above Trustees principle trustees, executors, and persons filHng similar offices cutors! ' may employ professional or skilled agents to do all such business as requires such agency ; they are allowed to charge payment of such agents in account, and are not responsible for their def aidts i£ properly employed {b) . — The same prin- Directors ciple applies to directors of companies. They may execute the ordinary business of the company by properly qualified sub-agents ; but they cannot delegate matters entrusted to their own discretion, as the allotment of shares (c) ; or the buying of shares in the company {d) ; or the making of calls and enforcing forfeiture for non-payment (e) . The authority of an agent is in general revocable by the Eevocation of agency. (x) Per cur. De Bussche v. Alt, L. {a) Fisher v. Smith, L. E. 4 Ap. R. 8 C. D. 310 ; Gibbs, C. J., Whit- Ca. 1 ; 48 L. J. Ex. 411. tenbury v. Forrester, 6 M. & S. 7, ji. ; (i) Speight y. Gaunt, L. E. 9 Ap. Fmery v. Wase, 5 Ves. 848 ; 8 ib. Ca. 1 ; 53 L. J. C. 419 ; Srier r. 518 ; but see New Zealand land Co. v. Frison, L. R. 26 C. D. 238 ; Fry v. L. R. 7 Q. B. D. 374 ; 50 Tapso7i, L. R. 28 C. D. 268 ; 54 L. J. of com- pany. L. J. Q. B. 433. 0. 224 ; see Se Mitchell, 54 L. J. C. (y) Stephens^. Badcock, 3 B. & Ad. 342; Se Blundell, L. R. 40 C. D. 370 ; 354 ; see ante, p. 93. 67 L. J. 0. 730 ; Re Weall, supra. (z) Cahill T. Dawson, 3 C. B. N. S. [c) Soward^s case, L. R. 1 Ch. 561. 106 ; 26 L. J. C. P. 253 ; see lie (d) Cartmell's case, L. R. 9 Ch. 691 ; Weall, L. R. 2 0. D. 674 ; 68 L. J. 43 L. J. C. 688. C. 713. («) Botiomleifa case, L. R. 16 C. D. 681 ; 60 L. J. C. 167. dd2 404 PKINCIPAL AND AGENT. Part II. principal at any time before it is executed (/). — The authority Factor. of a factor intrusted with goods for sale may be revoked at any time before the goods are sold, and though the factor has made advances to his principal; such advances entitle him to a lien, but do not render his authority irrevocable, so as to justify a sale against the orders of the priacipal upon his default in payment ; unless the advances were made upon an express agreement to that effect {g). And a factor, after revocation of his authority, ceases to be an agent intrusted with goods for sale, so as to be enabled to make a valid pledge of the goods under the Factors Auctioneer. Act (/i). — The authority of an auctioneer employed to sell goods may be revoked by the owner at any time before a sale is completed ; and though the auctioneer was commis- sioned to sell " without reserve," and has advertised the sale to be so made (i). And the revocation is valid against a person buying without notice of it (A-). The owner cannot revoke after a lot has been knocked down to a buyer ; but he may revoke the authority of the auctioneer to sign a contract within the Statute of Frauds so as to make him charge- able {I). — An agency is also revoked by the principal selling the goods or subject of agency, or otherwise disposing of the business in which the agent is employed {m) . " Where an agreement is entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, 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. But this doctrine applies only where the authority is given for the purpose of beiag a security, or as a part of the security ; not to cases where Authority coupled with interest. (/) VyniorU case, 8 Co. 82 a. (g) Raleigh v. Atkinson, 6 M. & W. 670 ; Smart v. Sandars, 5 C. B. 895 ; see Chinnoelc v. Sainsiury, 30 L. J. 0. 409. (A) Fuentes t. Montis, L. R. 4 C. P. 93 ; 38 L. J. C. P. 95 ; post, p. 436. (i) Taplin t. Florence, 10 0. B. 744 ; fFarlow v. Sarrison, 2 E. & E. 295 ; 29 L. J. Q. B. 14 ; Mainprice v. Westley, 6 B. & S. 420; 34 L. J. Q. B. 229. See the Sale of Land hy Auction Act, 1867, ante, p. 307. (h) jVaimer v. Sack, 6 Hare, 443. (l) See ante, p. 240. (»h) Rhodes v. Foru-ood, L. E. 1 Ap. Ca. 256 ; 47 L. J. Ex. 396. PRINCIPLES OF THE LAW OF AGENCY. 405 the authority is given independently and the interest arises Ch. ii. afterwards and incidentally only. As for instance in the '—^ case of goods consigned to a factor for sale. That confers an implied authority to sell. Afterwards the factor makes advances. This is not an authority coupled with an interest; hut an independent authority and an interest subsequently arising. The making of such an advance may be a good consideration for an agreement that the authority to sell shall be no longer revocable ; but such an effect will not arise independently of agreement " (»). But " if a principal employs an agent to do a legal act the doing of which may in the ordinary course of things put the agent under an obligation to pay money to another on account of his prin- cipal; and the agent before revocation acts upon the authority and incurs the obligation, the authority ceases to be revoc- able" (o). Thus an authority given to a betting agent to make bets for his principal, as it implies an authority to pay the bets if lost, on making the bets becomes irrevocable, and the agent may pay the bets and recover the amount from the principal (p). If the principal has represented that a person is his agent Notice of i-iini. 1 1 revocation. with authority to contract on his behalf, as may happen by an habitual course of dealing through such agent, he cannot effectually revoke the agency as against persons with whom he has so dealt without giving them notice of the revocation ; and he may be bound by their dealings with the agent con- tinued after revocation of the agency but before receiving notice (q) . Upon this principle a retiring partner may be estopped from denying the authority of the continuing partners to bind him by contracts with customers of the firm who have no notice of the dissolution of partnership ; and a master who has accredited a servant to a tradesman (n) Per cur. Smart v. Sandars, 5 dissenting. See Seymour v. Bridge, C. B. 917; see Taplin t. Florence, L. R. 14 Q. B. D. 460; 54 L. J. supra; Yates v. Boppe, 9 0. B. 541. Q. B. 347. (o) 'S.a.wixns, 3., Mead V. Anderson, (q) Trueman v. Loder, 11 A. & E. L. R. 10 Q. B. D. 107 ; 52 L. J. 689 ; Drew t. Nunn, L. K. 4 Q. B. D. Q. B. 214. 661 ; 48 L. J. Q. B. 691 ; see Ee (p) lb., affirmed L. E. 13 Q. B. D. Oriental Bank, L. R. 28 C. D. 634 ; 779 ; 53 L. J. Q. B. 532 ; Brett, M. R., 54 L. J. C. 322. by death. 406 PRINCIPAL AND AGENT. Pakt II. to order goods in his name may be liable for orders given to the tradesman before notice of the revocation of the autho- rity (r). So where a ship is sold during a voyage, the master may bind the new owner by continuing to act under his prior orders, though they are of an exceptional character, until he has notice of the change of ownership (s). Eevocation The authority of an agent is revoked by the death of the principal; and a contract afterwards made by the agent, though without notice of the death, is void (f) . The autho- rity which a wife may have, in the absence of her husband, to pledge his credit for necessaries is revoked by his death ; and the executors of the husband are not liable for neces- saries supplied to the wife after his death, though before notice of the death had been received (m). Nor in such case is the wife liable for the goods supplied to her upon the credit of her husband, if she contracted merely as his agent and did not pledge her own credit (*). — So a contract of employment or service is in general revoked by the death of either of the contracting parties. The retaiaer of a soK- citor is revoked by the death of his client ; and he cannot claim items of costs incurred after the death, though ia a pending suit and without notice of the death (y). An engage- ment by a firm of two partners of an agent in their business for a term of years was construed to be subject to the con- dition that the parties should so long live, and was held to be discharged by the death of one of the partners and eon- sequent dissolution of the firm (s). — "Where a person was employed to sell a picture for the owner upon certain terms of remuneration and the owner died before the sale was effected, it was held that the employment was revoked, and that by selHng after his death the agent could not entitle himself to claim the stipulated remuneration, though he {r) See post, p. 457; Erie, C. J., J. n. J:x p.Sican, 7 C. B. N. S. 432 ; 30 („) Blades v. Free, 9 B. & C. 167 • L. J. C. P. 118. post, p. 494. (s) Mercantile Bank v Gladstone, {,■) Smout y. liber;/, 10 M. & W. 1. /A ■ n^^""- V" h ^- ^''- ^^°- (i') -fo"^ ''■ ^"0'' 68 L. J. Prob. 67. (t) Watson V. X»«^ 4 Camp. 272 ; {,) TasJcer v. Shepherd, 6 H. & N. see note (a) Smart v. Sandars, 5 C. B. 375 ; 30 L. J. Ex 207 • see nost 917 ; Matdongall y. Robertsoi,, 2 Y. & pp. 608, 1084 ' * ' PRINCIPLES OF THE LAW OF AGENCY. 407 might make a claim for the value of his services, if the Ch. ii. Sect !■ administrator of the deceased owner adopted and confirmed '- the sale (a). — And an authority coupled with an interest, which is irrevocable pending the interest, is revoked by death ; for no valid act can be done in the name of a dead man ; as a power of attorney given to a creditor to sell property in discharge of his debt (ft) ; or a power of attorney to enter up Judgment (c). The authority of an agent is also revoked by bankruptcy EeTocation of the principal, vesting all his property in the trustee from the mptcy. act of bankruptcy ; except as to dealings with the agent with- out notice of an act of bankruptcy (d). So the liquidation of a company and the appointment of liquidators Tevokes the authority of the directors {e) ; and the bankruptcy of a partner dissolves the partnership and revokes the authority of the partner to act for the firm (/) . According to the above principles a power of attorney Powers of under seal, as being a mere authority, is in general revoc- able ; btit where it is part of a security for money or is given to effectuate a security, being then coupled with an interest, it is not revocable (g). A power of attorney given by a debtor to his creditor authorising him to sell land in discharge of the debt is not revocable, because an authority coupled with an interest (A). — The ordinary power of attorney adopted by the Bank of England, to transfer stock and re- ceive dividends, contains a stipulation that, in case of the death of the grantor, the power should, so far as the Bank are concerned, be binding on his executors and adminis- trators, unless notice in writing of his death should have (a) Campanari v. ffoodiurn, 15 C. (e) Be Oriental Bank, L. R. 28 C. B. 400 ; 24 L. J. C. P. 13. D. 634 ; 54 L. J. C. 322. (b) Watson v. Kinff, i Camp. 272. (/) The Partnership Act, 1890, (c) Seath v. Bindley, 2 A. & E. s. 33. 365 ; see Odes v. Woodward, 2 L. {g) Kenyon, C. J., Walsh v. Whit- Kaym. 766. comb, 2 Esp. 665. See Wilkinson v. (d) Ex p. Snowball, L. E. 7 Ch. Wilkinson, 3 Swanst. 527; Oldham y. 534 ; 41 L. J. B. 49 ; Markwick v. Oldham, L. E. 3 Eq. 404. Bardingham, L. R. 15 C. D. 339 ; (A) Gaussen v. Morton, 10 B. & C. see Elliott v. Turquand, L. R. 7 Ap. 731. Ca. 79; 51 L. J. P. 0. 1. 408 PRINCIPAL AND AGENT. _FAitT II. been previously given to the Bank(«). — The Conveyancing Act, 1881, s. 47, protects " any person making or doing any payment or act in good faith in pursuance of a power of attorney " from liability by reason of the donor having pre- viously died, or become lunatic, or bankrupt, or revoked the power, unknown to such person ; but with a reservation of any right against the payee of any person interested in any money so paid (/«). And by the Conveyancing Act, 1882, ss. 8, 9, a power of attorney given for valuable consideration " expressed to be irrevocable," and a power of attorney " expressed to be irrevocable for a fixed time therein spe- cified, not exceeding one year from the date," in favour of a purchaser, shall not be revoked by the donor, or by the death, marriage, lunacy, or bankruptcy of the donor. Indemnity ^ principal in employing an agent is impliedly bound to indemnify him against all payments made and liabilities incurred by him in the proper execution of the agency (/). And " every man who employs another to do an act which the employer appears to have a right to authorise him to do undertakes to indemnify him for all such acts as would be lawful if the employer had the authority he pretends to have"(»w). But there is no indemnity against wrongful acts, the agent in such case being a joint wrongdoer with his principal (m) . So the revocation of an agency imports an implied promise to pay compensation for services under it, as having been rendered at the request of the principal (o) ; and the principal cannot revoke an authority under which a liability has been incurred, in breach of his indemnity {p). — (;) See Kidd'dl t. Farnell, 3 Sm. & Bing. 72 ; Denman, C. J., BeiU v. Gif. 428 ; 26 L. J. C. 818. GibUns, 2 A. & E. 75 ; SugdaU t. (Ic) See 22 & 23 Vict. c. 35, s. 26 ; Lovering, L. R. 10 C. P. 196 ; 44 L. Sinisee Mutual Frovident Soc. v. Ufac- J. C. P. 197. millan, L. R. 14 Ap. Ca. 696. (ij) Jlernjwcather v. XLvaii, 8 T. R. {I) See ante, p. 39 ; Betta v. Gii- 186 ; see ante, p. 62 ; RawUngs v. bins, 2 A. & E. 57 ; Warhw v. Sar- Bell, 1 C. B. 951 rison, B. & E. 295 ; 29 L. J. Q. B. (o) See ante, p. 46. !*• ^ \p) Read t. Anderson, 10 Q. B. D. ()«) Per cur. Adamson v. Jarvis, i 100 ; 52 L. J. Q. B. 214 ; ante, p. 405. PRINCIPLES OF THE LAW OF AGENCY. 409 If an agent is charged personally in an action for an act Ch. ii. done in pursuance of his agency, he may serve upon his principal a notice of claim to indemnity, and thereby make him a party to the proceedings under the Judicature Act, Order XYI. r. 48 {q). " Any surreptitious dealing between one principal and the Execution agent of another principal is a fraud on the latter"; -which in fraud of entitles him to avoid a contract made through such agency (}•). ^""'''p Where a company contracted for certain works to be done under the direction and certificate of their own engineer ; and the contractors engaged the same engineer without the know- ledge of the company to do the works ; it was held that the company might recover back money paid under the contract as having been obtained by fraud (s). And any contract made vsdth an agent on his own account which tends to influ- ence his execution of the agency is void as being a fraud on his principal (t) . " An agent cannot be allowed to put himself in a position Promts o' . . . . . . agency. in which his interest and his duty will be in conflict " ; and therefore any profit made by an agent in the execution of his agency must be accounted for to the principal, who may claim it as a debt for money received to his use (u). A gratuity given to an agent for the purpose of influencing the execution of his agency vitiates a contract subsequently made by him, as being presumptively made under that influence («) ; and a gratuity to an agent after the execution of the agency must be accoimted for to his principal ; as in the case of an agent or servant employed to make payments accepting a (^) Benecke v. Frost, L. K. 1 Q. B. [t) Harrington v. Victoria Dock, L. D. 419 ; 45 L. J. Q. B. 693. See K. 3 Q. B. D. 649 ; 47 L. J. Q. B. Blore T. Ashhy, L. R. 42 C. D. 682 ; 594. 58 Ii. J. C. 779. (m) Caims, L. C, barker v. Mac- {r) James, L. J., Panama Tel. Co. kenna, L. E. 10 Ch. 118 ; 44 L. J. C. T. India Rubber Works, L. R. 10 Ch. 425. See Lister v. Stubbs, L. R. 45 526 ; 45 L. J. C. 125 ; Cotton, L. J., C. D. 1 ; 59 L. J. C. 570 ; William- Zister v. Stubbs, L. E. 45 C. D. 12 ; son v. Sine, (1891) 1 C. 390 ; 60 L. J. 69 L. J. C. 570. C. 123. (i) Panama Tel. Co. v. India Subber {x) Smith v. Sorby, L. R. 3 Q. B. Works, supra. D. 552. 410 PRINCIPAL AND AGENT. Commis- sion or proiit on Pabt II. discount or present from the creditor {y). If an agent stipu- lates with a contractor for a commission upon the work to be done for his principal, he must account for the commission, Customary and it is ffood ground for his dismissal (s) . — But an agent is allow- no 1 . T. auces. entitled to retain for his own use allowances wnicn are cus- tomary in the business and known to the principal as a recognised mode of remuneration : as the customary commis- sions and discount received by an insurance broker in dealing with underwriters (a) ; and the interest and profit made by an auctioneer on a deposit paid to him as stakeholder to abide the completion of the sale (b). Upon the same principle where an agent employed to buy or sell for his principal is paid a sum of money or commission by the other party upon effecting a sale, the principal may claim the money from his agent ; or he may avoid the sale as fraudulent and recover back money which has been paid under it (c) ; or he may sue the agent and the other party, jointly or severally, to recover damages for the fraud in inducing the sale {d). In such cases the agent becomes in- debted to his principal for the money received, but he cannot be charged as trustee of the money, or in respect of the investments made with it (e) . Where an agent for the sale of an estate colludes with a purchaser for the purpose of sell- ing it to a sub-purchaser at an advanced price, the agent may be charged with the excess in the price obtained at the sub- sale (/). An agent instructed to sell subject to a reserved price is not justified in taking to the goods himself as buyer, without notice to and consent of his principal ; and he may (j/) llellish, L. J., Half s case, L.E.. 10 Ch. 603; 44 L. J. C. 721. (z) Boston Fishing Co. v. Ansell, L. K. 39 C. D. 339. [a) Great Western S.y. v. Cunliffe, L. K. 9 Ch. 625; 43 L. J. C. 741 ; Baring v. Stanton, L. E. 3 C. D. 502. {b) Harrington v. Hoggart, 1 B. & Ad. 577 ; ]Kst, p. 442 ; see Edgell t. Da;/, L. R. 1 0. P. 80; 35 L. J. 0. P. 7. [c) ITorison v. Thompson, L. E. 9 Q. B. 480 ; 43 L. J. Q. B. 215 ; ptrr cur. Phosphate Sewage Co. v. Sart- mont, L. E. 5 C. D. 457 ; see Whyte v. Ahrens, L. R. 26 C. D. 717; 54 L. J. C. 145. ((Z) Salford v. Lerer, (1891) 1 Q. B. 168; 60 L. J. Q. B. 39. (f) Lister V. Stubis, L. E. 45 C. D. 1; 59 L. J. C. 570. (/) Morgan v. Elford, L. R. 4 0. D. 352. PRINCIPLES OF THE LAW OF AGENCY. 411 he charged with the profit of a re-sale at an advance [g) . So Ch. ii. where an agent employed to buy for his principal sells his L^ own property to him at an advance of the price at which he bought it, he must account for the profit (A) ; as in the case of promoters and directors of companies buying land or mines or other property for the purpose of selling to the company at an advanced price (*) . "Where a director or promoter or agent of a company in Directors negotiating a purchase for the company accepts from the moters of vendor part of the price or any other benefit, whether in ''°™P™y- money or in paid-up shares, he must account for the value to the company (k) . And in such case the whole transaction is fraudulent and may be repudiated by the company ; and the promoter or agent can make no claim for his services (^). — Also directors of a company must account to the company for shares given them by promoters to induce them to act as directors (m) ; and for calls upon their shares which have been paid out of money of the company (n) ; and for profits made by them in getting off the shares of the company (o) ; and for profits from contracts made by them with the com- pany {j}) ; and for money received from a debtor of the company to induce the director to compromise the debt (q). (g) De Bussehe v. Alt, L. E. 8 Co. v. Hartmont, L. K. 5 C. D. 394 ; C. B. 286 ; 47 L. J. C. 387. 46 L. J. C. 661 ; Bagnall v. Carlton, (h) Kimiei- v. Barber, L. K. 8 Ch. L. E. 6 C. D. 371 ; 47 L. J. C. 30. 56. ('«) De Euvigne's ease, L. E. 6 C. D. (i) He Imperial Land Co., L. R. 4 306; 46 L. J. C. 360; Nant-y-Glo. C. D. 566; 46 L. J. C. 235; see Co. v. Grove, L. R. 12 0. D. 738; Zadywell ilining Co. Y. Brookes, ij.'R. McLean's case, 55 L. J. C. 36; see 35 0. D, 400 ; 56 L. J. C. 684. So North Australian Co., 61 L. J. C. (7c) Emma Mining Co. ^. Lewis, L. 129. E. 4 C. P. D. 396 ; 48 L. J. C. P. (n) Re EngUfieU Coll., L. E. 8 257 ; Emma Mining Co. r. Grant, L. C. D. 388. E. 11 0. D. 918; Eden v. Ridsdale's (o) Parker v. McKenna, L. E. 10 Lighting Co., L. E. 23 Q. B. D. Ch. 96 ; 44 L. J. 0. 425 ; Ue Staple - 368 ; 58 L. J. Q. B. 579 ; Lydney ford Coll. Co., 49 L. J. C. 253. Iron Co. V. Bird, L. E. 33 C. D. 85 ; (p) Albion Steel and Wire Co. v. 55 L. J. 0. 875. Martin, L. E. 1 0. D. 580 ; 45 L. J. (?) Be Hereford and South Wales C. 173. Wagon Co., L. E. 2 C. D. 621; 45 (q) Metrop. Banker. Seiron, L. E. Ij. J. 0. 461 ; see Fhosphate Sewage 5 Ex. D. 319. 412 PRINCirAL AND AGENT. Sect. II.— PARTIES TO CONTRACTS OP AGENTS. PAOB Parties to contracts of agents by deed — simple contracts — principal presumptiyely the contracting party 412 Principal and agent both contracting parties — agent liable by usage of trade — election to sue principal or agent .... 415 Agent sole contracting party — foreign principal — charter- party by agent with cesser of liability 417 Liability of undisclosed principal — right of undisclosed principal — application to contracts in writing — bills of exchange 419 Conditions of charging undisclosed principal — payment by principal in account with agent 423 Conditions of claim of undisclosed principal — payment to agent — set-off of debt of agent — notice of agency 425 Intervention of principal discharges liability to agent — payment to principal 427 Principal acting as agent on his own account — agent deal- ing with his principal on his own account 428 Contracting as agent without authority — warranty of authority — ^notice of agency 430 Pam II. Where a contract is made by an agent acting for a prin- cipal the question arises whether, in relation to the other party, the agent, or the principal, or both are contracting parties, entitled to sue and liable to be sued upon the contract. Contracts With Contracts by deed inter partes, the parties are deter- mined exclusively by the form of the instrument ; and it is immaterial that the persons named and executing as parties are described to be and act as agents for others who are named as their principals; for the principal can acquire no right, nor incur liability, unless himself named or designated as a party to the deed, and imless it is executed on his behalf with authority under seal (r). Thus where a master of a ship executes a charterparty under seal in his own name, the ship- (r) See ante, pp. 388, 400 ; Parke, 736 ; Wilson \. Keating, 4DeG. & J B., Beckham v. Drake, 9 M. & W. 95 ; 388 ; 28 L. J. C. 895. see Furnivall v. Coomhes, 6 M. & Q-. PARTIES TO CONTRACTS OF AGENTS. 413 owner for whom he acts, not being a party to the deed, Ch. ii. cannot sue upon it (s). And upon the same principle a '■ — - cestui que trust can&ot sue or be sued upon a bond or covenant made by and in the name of a trustee on his behalf (^). — In Deed poll. a deed poll only one party is formally named as such, and the covenantee is identified by the name or designation of the person for whose benefit thekfcovenant is expressed to be made (■«) . \^ A simple contract in writing expressed to be inter partes is simple '• ° Y^ -^ contracts. subject to the same construction as a deed, as to the effect of naming the parties ; though it is not, like a deed, exclusive of the rights and liabilities of principals not named in the con- tract (a-) ; " to allow evidence to be given that the party who appears on the face of the instrument to be personally a contracting party is not such, would be to allow parol evidence to contradict the written agreement, which cannot be done " {y) . — Where a written contract is not expressly made inter partes the question whether agent or principal is the contracting party is a question of construction depending upon the forms and terms of the writing (2) . In general, if a person signs a contract in his own name without qualification, he is prima facie a contracting party and is personally liable ; unless it appears clearly upon the face of the instrument that he contracts for another person («). And "persons signing a document, if they wish to exclude their own lia- bility must show that they sign for some other person ; and if it is left ambiguous on the instrument, it should be construed against the persons signing "(6). Words merely describing a person as " agent " " broker " or the Hke are not (s) SehacJc t. Anthony, 1 M. & S. {y) Per cur. Hiygins t. Senior, 8 573 ; Gardner y. Laehlan, 8 Sim. 123 ; M. & W. 844 ; see ante, p. 153. 4 M. & Cr. 129 ; see per cur. Priestley (z) Tanner v. Christian, 4 E. & E. T. Fernie, 3 H. & C. 977 ; 34 L. J. 591 ; 24 L. J. Q. B. 91 ; Lennard v. Ex. 176. Robinson, 5 E. & B. 125 ; 24 L. J. Q. {t) Ellenborough, C. J., Schack v. B. 275. Anthony, supra ; Jte International {a) Cooke v. Wilson, 1 C. B. N. S. Contract Co., L. E. 6 Ch. 525. 153 ; 26 L. J. C. P. 15 ; Chadwich v. {u) See ante, pp. 121, 369 ; Sunder- Maden, 9 Hare, 191 ; 21 L. J. 0. 876. land Ins. \. Kearney, 16 Q. B. 925; [b] Ciom^pton, iJ.,I>eslandes v. Ore- 20 L. J. Q. B. 417. gory, 2 E. & E. 602 ; 29 L. J. Q. B. («) Beckham v. Sralee, 9 M. & "W. 93. 79 ; 2 H. L. C. 579 ; see post, p. 421. 414 PRINCIPAT. AKD AGENT. Principal presump- tively the contract- ing party. Paet II. alone sufficient to exempt him from personal liability (c) ; for this purpose it must be clearly expressed that he contracts " for " or " on account of " a principal, and not on his own account {d) . In the construction of contracts made by an agent for a disclosed principal, the presumption is that the principal and not the agent is the contracting party (e). . "It is more con- sonant to the general principle of law to refer all transactions of agents to the principal on whose account they were entered into;" and according to this principle it is held that upon contracts with carriers the consignee of the goods, and not the consignor, is presumptively the party entitled to sue and liable to be sued, as being the principal for whom they are carried by the directions of the consignor acting as agent ; - but such presumption necessarily varies with the circum- stances (/). In the case of a railway company issuing tickets for carrying over the lines of other companies, the issuing company is presumptively agent for the other companies as to the carriage over their lines according to the traffic arrange- ments ; and each company, so far as it undertakes the carrying, is presumptively a principal ; while the issuing company may also appear expressly liable on the entire contract (gr) . — Upon this principle an undertaking by a solicitor on behalf of a client, for some act to be done by the latter, is construed presumptively as charging the client and not the solicitor {Ji) ; but where the solicitor of a party under- took in his own name, though he described himself as (c) Faice v. Walker, L. E. 5 Ex. 173 ; 39 L. J. Ex. 109 ; Hough v. ifa«2.j«os, L.R. 4 Ex. D. 104; 48 L.J. Ex. 398 ; Sutcheson v. Eaton, L. R. 13 a. B. D. 861. (d) Fairlie v. Benton, L, R. 1 C. P. T>. 374 ; 45 L. J. 0. P. 630 ; Gadd V. Soiighton, L. R. 1 Ex. D. 357 ; 46 L. J. Ex. 71 ; see Pike v. Ongley, L. R. 18 Q. B. D. 708 ; 56 L. J. Q. B. 373 ; Southwell v. Bowditch, L. R. 1 C. P. D. 374; 45 L. J. C. P. 630; Blackburn, J., Fleet v. JOirloii, L. R. 7 Q. B. 131 ; 41 L. J. Q. B. 49 ; and see post, pp. 415, 436. (f ) Littledale, J. , Thomson v. Daven- port, 9 B. & C. 90 ; Finns v. Fmns, 3 A. & E. 132 ; Blackburn, J., Fisher T. Marsh, 6 B. & S. 416 ; 34 L. J. Q. B. 178. (/) Iiau-es V. FecJc, S T. R. 334 ; see Great West. Sij. v. Bagge, L. R. 15 Q. B. D. 625 : 54 L. J. Q. B. 599 ; West field v. Great West. Eij., 52 L. J. Q. B. 276 ; sfie post, p. 715. ig) See Foulkes v. Metrop. Dist. Ft/. , L. R. 5 C. P. D. 157 ; 49 L. J. C.P. 361 ; Hooper t. London * ^V. W. Ry., 50 L. J. Q. B. 103. (A) iw'UT. jA'icAo&on, 18Q.B.503; 21 L. J. Q. B. 311. PARTIES TO CONTRACTS OF AGENTS. 415 solicitor of the party, to pay money with which the party Ch. il was charged, he was held personally liable (»). " An agent may make a contract by which he may become Principal personally liable, while he still makes it on benali ot ms toth con- principal, so that the other party has a choice to go against pa^iesf either the one or the other ; that is, the contract may be such as to make the principal as well as the agent himself a party to the contract " {k). "Where goods are bought by a broker, charging himself as buyer in the bought and sold notes, both broker and principal are presumptively liable, so that the seller may charge either (l). And the liability of a broker under the rules of the Stock Exchange does not exclude the liability of his principal (««) . So where goods are shipped under a bill of lading signed by the master, the shipper may charge either the master who signs the contract or the owner of the ship for whom the master acts (w) . Where the contract purports to bind the principal only, as Agent in the case of brokers' notes expressed in the terms bought or usage of sold " for," or " on account " of, a principal, the broker may ^^ ^' also be liable to his employer for the due performance of the contract by a usage of the trade ; as a usage that if the prin- cipal is not named in or at the time of the contract the broker shall be liable (o) ; or a usage that if the principal fail to pay the agent shall be liable {p). Evidence of usage of the liability of the agent is not inconsistent with the terms of a contract which purports to bind the principal ; but evidence of usage that the agent should become liable iastead of the prin- cipal would contradict such contract and is inadmissible (y). (t) Burrell v. Jones, 3 B. & Aid. 977 ; 34 L. J. Ex. 176. i7 ; SallY. Ashurst, 1 C. & M. 714 ; (o) Sumfretj v. Dale, E. B. & B. see Harper v. TFilliams, i Q. B. 219; 1004 ; 27 'L. J. Q. B. 390 ; Fleet v. Doumman v. Williams, 7 Q. B. 103. Murton, L. B. 7 Q. B. 126 ; 41 L. J. (k) Fer cur. Fliinger Gesellschaft v. Q. B. 49 ; Sutchinson v. Tatham, Claye, L. E,. 8 Q. B. 318 ; 42 L. J. L. R. 8 C. P. 482 ; 42 L. J. C. P. Q. B. 151 ; Fisher v. Marsh, supra; 260; Southwells. IBowditch, L. K. 1 Calder v. Dobell, L. K. 6 C. P. 486 ; C. P. D. 374 ; 45 L. J. C. P. 630, 40 L. J. C. P. 224. {p) Imperial Banks. Land. ^ Kath. [l) Calder v. Dobell, supra. Docks, li. E. 5 C. D. 195 ; 46 L. J. (m) Mortimer v. McGallan, 6 M. & C. 335. W. 58. (y) Pike v. Ongley, L. R. 18 Q. B. (m) Priestley v. Fernie, 3 H. & 0. D. 708 ; 56 L. J. Q. B. 673. 416 PRINCIPAL AND AGENT. Paet II. And if an agent has contracted in writing so as to make him- self personally liable, evidence of usage in discharge of his liability is inconsistent and inadmissible (r). Election Where the principal and the agent are both liable, the principal Creditor has the election which to sue. " In general the or agent. q^gg^jQjj pf election can only be properly dealt with as a question of fact ; but there may be cases in which the act of the contractee in regard to his dealings with or proceeding against the agent, with full knowledge of the facts and freedom of choice, may be such as to preclude him in point of law from afterwards resorting to the principal" (s). Where the creditor sued the contracting agent to judgment, he was taken to have made a conclusive election which precluded him from suing the principal, though the judgment failed of satisfaction through the bankruptcy of the agent ; but no legal proceeding short of judgment would have that effect (<). The filing of an affidavit of proof in bankruptcy against the agent, on which no further proceeding was taken or dividend received, was held not to preclude a subsequent action against the principal (m). Taking the contract in the name of the agent after demanding the name of the principal does not exclude the liability of the latter ; nor does a demand of pay- ment made upon the agent operate as an election to charge him only (a;). Nor does the taking of bills drawn by the agent in payment, which are afterwards dishonoured (y) . But such delay in charging the principal as would reasonably lead him to infer that the debt was paid by the agent, or that the creditor looked to the agent only, and thereby authorised him to settle with his agent, would preclude the creditor from afterwards charging the principal (s). (»■) Magee v. Aikimm, 2 M. & "W". Kenddlv. Samilton, L. R. 4 Ap Ca 440 ; Jones v. Litiledale, 6 A. & E. 614 ; 48 L. J. C. P. 705. 486 ; see a7ite, p. 413. (m) Curtis t. Williamson, supra. (s) Per cur. Curtis v. Williamson, {x) Colder v. Dobell, L R 6 C P L. R. 10 Q. B. 59 ; 44 L. J. Q. B. 486 ; 40 L. J. C. P. 224. 29 ; see Ld. Blackburn, Scarf y. Jar- {y) Whitwell t. Ferrin 4 C B Cory, L. R. 10 Q. B. 553 ; 44 L. J. (,„) Clinh M.Radford, (1891) 1 Q. B. Q. B. 205 ; Lister v. Tan. Haans- 625 ; 60 L. J. Q B 388 Icrgen, L. R. 1 Q. B. D. 269; 45 («) Per cur . French y . Gerher ,1,.^. L, J. Q. B. 495. 1 C. P. D. 744, affirmed 2 C. P. D. (I) Christofferson v. Sawsen, L. R. 246 ; 46 L J C P 3''0 7 Q. B. 609 ; 41 L. J. Q. B. 217 ; (o) Sehmak y. Aeery, 16 Q. B. PARTIES TO CONTRACTS OF AGENTS. 419 And if lie claims as consignee under a bill of lading incorpo- Ch. Ii. rating the conditions of the charterparty, the clause of cesser is not included, because inconsistent with the bill of lading {])). The clause receives the same construction in favour of a charterer who contracts in his own name ; and a waiver of the lien by the shipowner delivering the goods at his request does not revive the liability as charterer {q) . It is a general principle of law that if an agent contract personally without disclosing the agency, the principal upon being discovered may be charged ; and, on the other hand, the principal may intervene and charge the other contracting party; subject in either case to the condition of preserving the rights and equities of the party charged as against the agent. — "If a person sells goods, supposing at the time of Liability of the contract he is dealing with a principal, but afterwards closed discovers that the person with whom he has been dealing is P"""l"' • not the principal in the transaction, but agent for a third person, though he may have in the meantime debited the agent with it, he may afterwards recover the amount from the real principal; subject, however, to this qualification, that the state of the account between the principal and the agent is not altered to the prejudice of the principal " (r). And the same rule presumptively applies, where the seller knew that he was dealing with an agent, but who did not disclose the name of his principal, so that there was no opportunity of debiting the latter (s). And where the principal is named, taking the contract in the name of the agent as party does not necessarily discharge the principal {t) . — ^Upon the same principle an undisclosed or dormant partner of a firm may be sued jointly with the ostensible partners upon a contract 655; 20 L. J. Q. B. 228; Carry. Davenport,^ "R. k 0.?iG\ see per cur. Jackson, 7 Ex. 382 ; see post, p. 429. Armstrong v. 8tokes, L. E. 7 Q. B. {p) Gullisohen v. Stewart, L. K. 13 603 ; 41 L. J. Q. B. 256. Q. B. D. 317 ; 63 L. J. Q. B. 173 ; (s) Thomson v. Davenport, supra ; see Oraij v. Carr, supra. Irvine v. Watson, L. R. 5 Q. B. D. (q) Sanguinetti v. Pacific Steam 414 ; 49 L. J. Q. B. 531. Nav. Co., Ii. R. 2 Q. B. D. 238 ; 46 (i:) Calder y. Bobell, L. E. 6 C. P. L. J. Q. B. 105. 486 ; 40 L. J. C. P. 224 ; ante, (r) Tenterden, C. J., Thomson v. p. 416. E E 2 420 miNClPAL AND AGJENT. Eight of undis- closed principal Paet II. with the firm ; or the ostensible partners may be sued alone as being the actual parties to the contract {u). It is also "a well-established rule of law, that where a contract not under 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 contracting party. This rule is most frequently acted upon in sales by factors, agents, or partners, in which cases either the nominal or real contractor may sue ; but it may be equally applied to other cases" («). The rule apphes to foreign principals and agents ; but not to a foreign prin- cipal contracting through an English agent, the contract in the latter case being presumptively made with the agent exclusively of the foreign principal {//) . — Upon this principle where a loan is made of the money of a firm by one of the partners, all the partners may join in suing for it, upon proof that the money was lent upon a partnership account ; but the mere fact that the money being partnership money is not enough to entitle them to recover it, because the one partner may have taken and applied it for his own use without the knowledge of the firm or the borrower (s). So it was held that all the partners of a firm might sue upon a guarantee given to one of them to secure a loan of the partnership money (a) . So if one partner sells partnership property on behalf of the firm, all the partners may join in suing for the price ; but if he sells it as his own they cannot charge the buyer upon the contract of sale {b). And where goods are (k) Se Mautort v. Saunders, 1 B. & Ad. 398 ; Beckham v. Drake, 9 M. & W. 79 ; 2 H. L. C. 679 ; see Kendal v. SamiUon, L. R. 4 Ap. Ca. 504 ; 48 L. J. C. P. 705. (x) Per cur. Sims t. Bond, 5 B. & Ad. 393 ; Abinger, C. B., Sykes v. Gtfcs, 5 M. & W , 650 ; per cur. Spurr T. Cass, L. B. 5 Q. B. 659 ; 39 L. J. Q. B. 250. (y) Maspons v. Mildred, L. R. 9 Q. B. D. 541 ; 51 L. J. Q. B. 604 ; see ante, p. 417. (z) Sims V. Brittain, 4 B. & Ad. 375 ; Sims v. Bond, 5 B. & Ad. 389 ; Ale.vanderv. Barker, 2 C. & J. 133; Cooke v. Seelci/, 2 Ex. 746. {a) Garrett y. Sandlei/, 4 B. & C. 664, {h) Lucas V. Be la Cour, 1 M. & S. 249 ; Skinner v. Stokes, 4 B. & Aid. 437 ; see Eohon v. Brummond, 2 B. & Ad. 303. PARTIES TO CONTRACTS OF AGENTS. 421 tought by one person in his own name acting on account of Ch. ii. several others who are interested in the purchase all may join in suing the seller (c). Upon the same principle where a business is carried on by and in the name of two persons for the benefit of one of them only, he may sue alone, as being the principal, upon a contract made with both in the course of the business (d). But in all cases the principal must adopt the contract as made by his agent, though it differ in its terms from the authority given (c). — Upon a similar principle, where money of the principal has been obtained from an agent by mistake or fraud, either the principal or the agent may in general sue upon the implied contract for repay- ment (/). The rule applies in general to contracts in writing, not Contracta under seal (g), so far as is consistent with the writing ; " it is competent to show that one or both of the contracting parties were agents for other persons and acted as such agents in making the contract, so as to give the benefit of the contract on the one hand to, and charge with liability on the other, the unnamed principals ; and this evidence in no way con- tradicts the written agreement. 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 another 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). Evidence is not admissible to discharge the person who appears as party upon the written contract--(j) ; nor to contradict the writing as to the description of the party as principal : as where the (c) Cothay v. Fenndl, 10 B. & C. L. R. 11 Ap. Ca. 84. 671 ; see Young t. Hunter, i Taunt. (g) See ante, p. 412 ; Torrington v. 682. Lowe, L. K. 4 C. P. 26; 38 L. J. (i^ Spurrv. Cass, L. E. 5 Q. B. C. P. 121. 656 ; 39 L. J. Q. B. 249. (A) Fer cur. Eiggins v. Senior, 8 («) Ellentorough, C. J., Blackiurn M. & "W. 844; Parke, B., Beckham V. Scholes, 2 Camp. 343 ; Zucas v. v. Drake, 9 M. & W. 96 ; 2 H. L. C. Fe la Cour, 1 M. & S. 250 ; Smethurst 579 ; Bovill, C. J., Calder v. Fobell, ■V. Taylor, 12 M. & W. 5^5; see L. R. 6 G. P. 490; 40 L. J. C. P. 224. Humble v. Hunter, 12 Q. B. 310. (») Jones v. Littledale, 6 A. & E. (/) Stevenson v. Mortimer, 2 Cowp. 486 ; fee Holding v. Elliott, 5 H. & 805; Holt V. Fly, IE. & B. 795; N. 117; 29 L. J. Ex. 134. Colonial Bank v. Exchange Bank, 422 PRINCIPAL AND AGENT. Pabt II. party named in a cliarterparty of a sUp was described as " owner," evidence was not admitted to show that he was agent for the real shipowner, so as to entitle the latter to sue in his own name as principal (/«). So where the policies of a mutual assurance association are expressly restricted to members, a party interested as undisclosed principal cannot sue or be sued on a policy made by a member [1) . — The same principle applies with contracts required to be in writing by the Statute of Frauds ; the unnamed principal may sue and be sued upon the written contract signed by the agent in his own name {m). Bills of Bills of exchange and promissory notes are exceptions to exchange. " ■*- ^ ^ . ^ V, this rule. According to the law merchant by which they are regulated, no person can be sued unless he appears as party by name or designation on the face of the instrument ; nor can any person sue unless he is named therein as payee or promisee, or unless he becomes entitled as indorsee or bearer («). No person can accept a bill of exchange, unless he is named therein as the drawee to whom it is addressed (o) ; and any other person purporting to accept would not be liable, unless his signature could be construed as binding him to a collateral guarantee ( p) . Therefore, no person can sue or be sued as Bilissigned an undisclosed principal upon these instruments. — Hence a person who signs or accepts a bill or note in his own name, although he describes himself as agent, trustee, or the hke, is taken to be personally liable, in favour of the validity of the instrument ; unless he expressly on the face of the bill or note excludes all personal liability {q) . If the parties to a bill (Ji) HumUe v. Hunter, 12 Q. B. (o) Jackson v. Siidsoii, 2 Camp. 310. 4i8 ; Sails V. Clarke, 6 Q. B. 16 ; see [1) United Kingelom Ass. y. Nemll, Lindus v. Bradwell, 5 C. B. 583 ; L. K. 19 Q. B. D. 110; Monipomerie Fielder v. Marshall, 9 C. B. N. S. V. United Kinr/dom Ass., (1891) 1 606. Q. B. 370 ; 60 L. J. Q. B. 429. [p) Steele v. McEinlay, L. R. 5 (m) See ante, p. 240 ; Bateman v. Ap. Ca. 734 ; Be Barnard, L. R. 32 Phillips, \a East, 272; Trueman v. C. D. 447; 55 L. J. C. 935: ante Loder, 11 A. &E. 589. p. 209. («) Parke, B., Beckham -7. Drake, (k) Spiftk T. Larendar, 2 B. & B. [p) Farm- v. Lacy, L. R 31 C D 452 ; 5 Moore, 270 ; Evans t. Evans, 42 ; 55 L. J. C. 149. 3 Ad. & E. 132 ; Fisher v. Marsh, 6 [q] Si/kes v. biks,' siijira. B. & S. 411 ; 34 L, J. Q. B. 177. (r) Harington v. Hoggart, 1 B & («) Fayne t. Leconjield, 51 L. J. Ad. 577 ; ante, pp. 95 410 G- B- 6*2. (.,) See Crowther v. ' Elgo'od, L. R. 3i C. D. 691 ; 66 L. J. C. 41(3 GENERAL AGENTS. 443 such goods ; but lie has not a general lien (t). The principal Ch. il. can intervene to claim the price from the buyer only subject ■ '- — '- to the claim of the auctioneer ; and it is no answer to an action by the latter for the price of the goods, that the buyer has made payment to his principal, whilst his own claim remains unsatisfied (?«). — An auctioneer who receives posses- Selling sion of goods and sells and delivers them in the ordinary third course, if the goods are in fact the property of a third ^^"^ ^" party who has not authorised the sale, is responsible to the latter for the wrongful conversion of the property in the goods ; and though he acted in ignorance of the true owner- ship (x). But an auctioneer who sold goods which were brought into a public market by the sellers and delivered by them to the buyers was held to act merely as agent to settle the price without interfering with the property, and therefore not responsible to a third party claiming as the true owner (y). An auctioneer is entitled to indemnity from his employer for the consequences of acting upon his authority, and to be repaid the value of goods sold under the authority which has been recovered from him by the true owner (s). And if the true owner intervenes before a sale and claims the goods, the auctioneer may set up the jus tertii against any claim of his employer (re). — The authority of an auctioneer may be revoked Eevocation at any time before the sale is efEected, without notice to the rity. bidders ; and the presumptive authority of an auctioneer to sign a contract within the Statute of Frauds for both parties may be revoked by either, even after a lot has been knocked down to a bidder (6). Upon the same principle a partial re- vocation or a variation of the authority may be interposed (c ) . (i) Williams v. Millington, supra; (y) Turner v. Hocliey, 56 L. J. Wehl) V. Smith, L. R. 30 C. D. 192 ; Q. B. 301. 55 L. J. G. 343 ; see Grice v. Kenrick, (z) Adamson v. Jarvis, 4 Bing. 66 ; L. K. 5 Q. B. 340 ; 39 L. J. Q. B. 175. see Barker v. Furlong, supra. (m) Robinson v. Mutter, 4 E. & B. (a) Biddle v. Bond, 6 B. & S. 225 ; 956 ; 24 L. J. Q. B. 250 ; see Holmes 34 L. J. Q. B. 137 ; Davis v. Arting- V. Tutton, 5 E. & B. 65 ; 24 L. J. stall, 49 L. J. 0. 609 ; see Rogers v. Q. B. 316 ; ante, p. 428. Lambert, (1891) 1 Q. B. 318 ; 60 L J (.t) Barker v. Fmiong, (1891) 2 Ch. Q. B. 187. 172; 60 li. J. C. 368; Consolidated (b) See ff«?e, pp. 238, 404. Co. V. Curtis, Times L. R. 2 Mar. {c) Manser v. Baek, 6 Hare, 443 ; ■1&92 ; see lloUins v. Foioler, L. R. 7 ante, p. 267. •H.L. 757; 44 L. J. Q. B. 169. 444 PRINCIPAL AND AGENT. P^^T II- House and estate agents and other similar agents carry on House and the business of procuring tenants and purchasers of houses agent. and land and other kinds of property ; and generally upon the terms of the payment of a commission upon the rent or price obtained, in the event of the transaction being car- ried out through their services ; otherwise no charge to be payable for services rendered unless expressly stipulated for, such as registration fees, advertisements, or special inqui- ries (d) . Such an agency is revocable at any time before complete execution, and, if it is upon the above terms, -with- out compensation for the ineffective services rendered under it (e) . But if the agent executes his commission by procur- ing a tenant or purchaser satisfying all requirements, and the principal refuses or is unable to accept him, the latter is liable for the commission as if he had accepted him (/). And the agent is entitled to his commission upon the sale of an estate, though the negotiations were not completed by him, if he was the cause, through his services rendered for the purpose, of the estate being sold (g). But if his services did not cause the sale, he has no claim (h) . — A house agent charging a commission for letting a house presumptively undertakes to exercise reasonable care in procuring a proper person as tenant; and he is liable for the consequences of negligently procuring an improper person («). His employer also may refuse an improper person ; but if he accepts the person offered, with knowledge of his qualifications, he can- Authority not refuse to pay the agent's commission (/i). — The employ- ment of an estate agent with instructions to procure a pur- chaser, merely stating particulars and price of the property, gives no authority to the agent to sign a contract of sale (l). And an advertisement offering an estate for sale and referring {d) Simpson y. Zam!/, 17 C. B. 603 ; {']) AGENT. P^KT II. obtain instructions from the owner (i). "Not merely is a power given, but a duty is cast on the master in many cases of accident and emergency to act for the safety of the cargo in such manner as may be best under the circumstances; and, as a correlative right, he is entitled to charge its owner with the expenses properly incurred in so doing" (k) ; and he has a lien for such expenses upon the cargo saved (l) . If the ship becomes incapable of completing the voyage, it is the duty of the master to tranship the cargo and forward it by another vessel, provided that it is practicable to send it to its destination in a marketable state ; which depends upon its condition and the charges upon it, and the cost of tran- shipping and forwarding, compared with the value on arrival {m) . The authority of the master of a foreign ship in the above cases is presumptively regulated by the law of the country to which the ship belongs («) . Manager The manager of a ship, commonly called the ship's hus- band, is general agent of the owners in the home port for the use and employment of the ship, including repairs and outfit for voyage, engagement of master and crew, procuring cargo for freight, or letting it out on charter; but not including insurance, or borrowing money, or cancelling a charter- party (o). And in acting as agent he is not allowed to re- ceive any profit by way of commission or otherwise from brokers or others with whom he deals, for matters within the scope of his duty (p). — By the Merchant Shipping Act, 1876, s. 36, the name and address of the managing owner or of the ship's husband is required to be registered ; and such person is presumptive agent of aU the registered owners, but evidence (i) Australian Nail. V.Morse, Ij.Ji.. {m) jRosetto v. Giirneij, 11 C. B. 4 P. C. 222 ; Acatos v. Stirns, L. E. 176 ; 20 L. J. C. P 257 • Meyer t 3 Ex. D. 282 ; 47 L. J. Ex. 566 ; Ralli, L. K. 1 C. P. D. 358 ; 45 L. J. Atlantic Mutual Ins. v. HiUh, L. R. C. P. 741. 16 G. D. 474 ; see The Gratitiulwc, 3 (n) The August, (1891) Adm. S^S ; Eob. 257. 60 L. J. Adm. 57. {k) Per cur. Cargo c.t Argos, L. R. („) Abbott on Shipping, p. 62, 6 P. 0. 166 ; see NotaraY. Henderson, 12th ed. ; Thomas v. Lewis, L E, 4 L. E. 7 Q. B. 223 ; 41 L. J. Q. B. Ex. D. 18; 48 L. J. Ex. 7; see 158. See ante, p. 390. Setjnon v. Godden, L. E. 3 Ex D (I) Hingston v. Wcndl, L. E. 1 Q. 263. B. D. 307 ; 45 L. J. Q. B. 440. (p) WiUiamson v. Sine, (1891) I Oh. 390; 60 L. J. C. 123. GENERAL AGENTS. 451 is admissible tliat lie is agent only of those persons who in Ch. ii. fact appointed him {q). And a part-owner is not liable for the contracts of his co-owners or of the managing owner or ship's husband, unless he has expressly or impliedly autho- rised or sanctioned their agency on his behalf; for the co- owners of a ship are not in the relation of partners having a general authority to bind all within the scope of the part- nership business (r). A majority of co-owners are entitled to employ and manage the ship, but without the power of charging any liabiKty upon the dissenting minority (s). " One partner, by virtue of that relation, is constituted a Partners, general agent for another, as to all matters within the scope of the partnership dealings, and has communicated to him, by virtue of that relation, all authorities necessary for carry- ing on the partnership, and all such as are usually exercised by partners in that business in which they are engaged " (f). — It was formerly held that a person taking a share of the Partici^ profits of a business became liable, as a partner, for the debts, profits, upon the principle that by taking profits he took the security for the debts (tt). But it is now recognised that the liability of a partner to creditors depends upon the question "whether the trade is carried on on behalf of the person sought to be charged as a partner ; the participation in the profits being an element in determining that question, but not being in itself decisive ; the test being whether it is such a participa- tion of profits as to constitute the relation of priacipal and agent between the person taking the profits and those actually carrying on the business " (.r). An agreement to (g) Fraur v. Culhicrtson, L. R. 6 (s) Fer cur. Japp v. Campbell, 67 Q. B. D. 93; 50 L. J. Q. B. 277; L. J. Q. B. 81. see The England, L. E,. 12 Adm. 32 ; (t) Fer cur, Hawken v. Bourne, 8 Steelv. Lester, 'L.'R.Z 0.7.1). 121; M. & W. 710; per cur. Brettel v. 47 L. J. C. P. 43 ; EMs v. Ross, Williams, 4 Ex. 630 ; see Partnership Ii. E. 1 Q. B. 534 ; 35 L. J. Q. B. Act, 1890, 53 & 54 Vict. e. 39, ss. 1, 193 ; ante, p. 447. 5, 7. (r) Robinson v. Gleadow, 2 Bing. (h) Waugh v. Carver, 2 H. Bl. 235 ; N. 0. 156 ; Brodie T. Smoard, 17 1 Smith's L. C. 9th ed. 877 ; per C. B. 109 ; 25 L. J, C. P. 57 ; Freston Eldon, L. C, Exp. Hamper, 17 Ves. V. TampUn, 2 H. & N. 684 ; 27 L. J. 412. Ex. 192 ; Whiitoellv. Fcrrin, i C. B. (x) Blackburn, J., Biilkn v. Sharp, N. S. 412. L. R. 1 0. P. 112; 35 L. J. C. P. G g2 452 PRINCIPAL AND AGENT. Pabt II. share the profits of a business constitutes prim& facie the relation of partners ; notwithstanding an express disclaimer of partnership (y). But in a written agreement, though it stipulates for a share of profits, it is a question of construc- tion upon the whole agreement, whether a partnership is created (s) . — Where by a deed of assignment for the benefit of creditors the property and business of the debtor were vested in trustees, upon trust to carry on the busraess and to divide the profits rateably amongst the creditors until their debts were paid ; it was held that the creditors were not liable, as partners, for debts contracted by the trustees by reason merely of their participation in the profits; nor had they by the deed constituted the trustees their agents («). — Loans 'Qj the Partnership Act, 1890 (repealing and re-enacting of profits. 28 & 29 Vict. c. 86), s. 2, "the advance of money by way of loan to a person engaged or about to engage in any business on a contract with that person that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profits arising from carrying on the business does not of itself make the lender a partner with the person or persons carrying on the busraess or liable as such. Pro- vided that the contract is in writing, and signed by or on behalf of all the parties thereto." Sect. 5 postpones the lender to other creditors for valuable consideration in case of bankruptcy or insolvency ; a result which follows generally upon a loan of money for employment in a business, rade- pendently of the statute {b). If the contract contains terms, besides the receiving of a share of profits, which constitute a 105 ; Holme v. Sammond, L. R. 7 Ex. (z) Kelly v. Scotto, 49 L. J. C 383 • 218; 41L. J. Ex. 157; ^a:j3. rc«na«<, Walker v. Birsch, L. K. 27 C d' li. R. 6 C. D. 303 ; Mollwo v. Court 460 ; 54 L. J. C. 313 ; Badeley y. of Wards, L. R. 4 P. C. 419; Ross Consol. Sank, L. R. 38'c D 238- T. Farkyns, L. R. 20 Eq. 331 ; 44 67 L. J. C. 468. ' L. J. 0. 610. See Partnership Act, {a) Cox v. Mkkman, 8 H L C 1890,88.1,2. 268; 30 L. J. C. P. 125. {y) Jessel, M. R., Pooley v. Brker, [b) Ex p. Mills, L. R. 8 Ch 569 ■ L. R. 5 C. D. 471 ; 46 L. J. C. 467 ; JSa- p. T„„/or, L. R. 12 C d' 366 '■ Fawsey v. Armstrony, L. R. 18 C. D. lie Stone, L. R. 33 C. D. 541 • 55 698; 50 L. J. 0. 683; Moore v. Davis, L. J. C. 795 ; see Si Jieale L R 4 L. R. 11 C. D. 261 ; Ex p. Felhasse, Ch. D. 246 ■ 48 L J B 17 ' ' L. R. 7 CD. 530; 47 L.J. B. 66. • ■ • k. GENERAL AGENTS. 463 partnership, the loan is not within the Act (c) . The Act Ch. ii. applies only to loans upon the personal security of the trader, '■ — - and not to a loan upon the security of the partnership busi- ness (r?), and it does not affect securities for the loan(e). — Persons may be bound as ostensible partners by apparently Ostensible so trading, though not partners in fact inter se. Where a dormant person traded with his own property under the nominal firm ^^ of himself " and son," and the son acted in the business of the firm, it was held that there was an ostensible partnership which could be made bankrupt, and that the property became partnership assets and not several assets of the father, though there was in fact no partnership between them (/). On the other hand there may be only one ostensible partner with several dormant partners sharing the partnership property ; in which case the property cannot be claimed as the several assets of the acting partner as being the apparent owner to the exclusion of the dormant partners (g) . — As between the partners debts and losses of the partnership are presumptively borne in proportion to the shares of profits ; and they are entitled to contribution inter se in that proportion (h). The general authority of a partner does not extend to the General execution of contracts under seal, for which an authority rity— under seal is necessary ; and " a general partnership agree- Contracts ^ 1111(161* S63il. ment, though under seal, does not authorise the partners to execute deeds, unless a particular power be given for that purpose "(«'). In other respects the general authority of a partner is defined by the partnership business ; it extends and is restricted to matters necessary and usual in the ordinary conduct of the business (A) . — A partner can bind J°™'1'|-" the partners jointly only, and not severally ; and a contract partners. {c) Pooley v. Driver, L. E. 5 C. D. Cranlcshaw, L. E. 1 Ch. 421 ; see 458 ; 46 L. J. 0. 466 ; Frowde y. Gurnet/ v. Ilvans, 3 H. & N. 122 ; 27 Williams, 56 L. J. Q. B. 62. L. J. Ex. 166. (d) Ex p. DeVhmse, L. E. 7 C. D. (g) Reynolds v. Bowley, L. R. 2 611 ; 57 L. J. 0. 65. Q. B. 474 ; 36 L. J. Q. B. 247. (e) Exp. Shell, L. E. 4 C. D. 789; (A) Re Albion Ass., L. E. 16 C. D. 46 L. J. B. 63 ; JSadeley v. Gonsol. 83 ; 50 L. J. 0. 714 ; see Partner- Bank, L. E. 38 C. D. 238; 57 L. J. 0. ship Act, 1890, as. 24, 44. 468. (») Per cur. Harrison t. Jackson, 7 (/) Ex p. Sayman, L. E. 8 C. D. T. E. 210 ; see ante, p. 388. 11 ; 47 Ii. J. B. 54 ; Be Rowland ^ (k) Partnership Act, 1890, ss. 5—7. 454 PRINCIPAL AND AGENT. Past II. Bills and negotiable instru- ments. Form of partner- ship bills. purporting to bind tliem jointly and severally would be void as to the several liability (0- Nor would the partner who himself signed such contract be severally liable, if he expressly signed only as agent for the firm {m). But partners are liable jointly and severally for a breach of trust or fraud of one of the partners, in the conduct of the partnership business (n). " Partners in trade have authority, as regards third persons, to bind the firm by bills of exchange, for it is the usual course of mercantile transactions so to do ; and this authority is by the law and custom of merchants, which is part of the general law of the land " (o) . But partners in a firm of solicitors have no general authority to bind the firm by signing bills or notes, because such instruments are not required or usual in the ordinary course of the business {p) ; they may sign cheques for business payments, but not post-dated cheques, which are the same thing as bills of exchange (?) ; and the bankers are not responsible for misappropriation of the money drawn (r). For the same reason a partner in a mining com- pany (s), or in a farming business (/), presumptively could not bind the firm by signing negotiable instruments. — Part- nership bills may be signed with the correct name or designa- tion of the firm, which will bind those persons whom, as partners, it in fact represents («() ; they cannot be charged by an incorrect name, but it is sufficient that the name used, though inaccurate, be substantially correct and descriptive of the firm ix). The name of the firm m.ay be the name of the [T) Maclae v. Sutherland, 3 E. & B. 1 ; 23 L. .T. Q. B. 229 ; see Part- nership Aet, 1890, ss. 9, 12. (m) £x p. Buckley, 14 M. & W. 469. (k) Shjth T. Fladgate, (1891) 1 Ch. 337 ; 60 L. J. C. 66. (o) Per cur. Hedley v. Bainhridqc, 3 Q. B. 321 ; Pinknei/ v. Rail, 1 Ld. Eaym. 175; 1 Salk. 126. ( p) Hi'dlcy V. Baitibridge, supra ; Garland v. Jacomi, L. E. 8 Ex. 216. (j) Forster v. Maclcreth, L. E. 2 Ex. 163; 36 L. J. Ex. 94. (r) Backhouse v, Charllon, L. E. 8 0, D. 444. (s) Dickinson v. Talpy, 10 B. & C. 128 ; Brown t. Byeis, 16 M. & W. 252. (t) Grecnslade t. Dower, 7 B. & C. 635 ; Daridson v. Stanley, 2 M. & G. 721. («) Carter v. TThallcy, 1 B. & Ad. 11 ; Jrintle v. Crowthcr, 1 C. & J. 316 ; Gurnc)/ v. Frans, 3 H. & N. 122 ; 27 L. J. Ex. 166 ; Stephens v. Reynolds, 5 H. & N. 513; 29 L. J. Ex. 278. (j) Lloyd Y. Ashby, 2 B. & Ad. 23 ; Faith v. Richmond, 11 A. & E. 339 ; Kirk V. Blurton, 9 M. & W. 281 ; Forhes v. Marshall, 11 Ex. 166; Maclae v. Satherland, 3 E. & B. 1 ; GENERAL AGENTS. 455 signing partner ; in which case, if he has no separate busi- Ch. II. ness to which it could apply, it presumptively binds the '- — - firm (y). It seems that the real names of all the partners may be used, though the firm has a distinctive name (s) . As those persons only can sue or be sued upon bills and notes who appear upon the instruments as parties by their name or designation, a partner cannot bind the firm as undisclosed principals by signing his own name (a) ; unless it is at the same time the name of the firm and so used upon the instru- ment (6). But he may bind the firm by signing his own name expressly as agent on their behalf (c). — A bill drawn Aocept- upon a firm by their name or designation is sufficiently ac- partner- cepted by one of the partners signing the name of the firm or ^ '^ his own name ; any form of acceptance being sufficient if signed by a person duly authorised {d) . If not authorised, his acceptance, though purporting to be on behalf of the firm, may bind himself personally (c). Signing a bill in blank is not a mercantile transaction within the general authority of a partner : and the holder of such a bill must prove a par- ticular authority for it (/) . A partner in a meroantile firm has general authority to Bon-owing borrow money for the purposes of the business ; but this does ^°^^^' not imply authority to bind the firm by opening a banking account in his own name (g). — It is ordinary business of a Receiving solicitor to negotiate mortgages and securities for money, and "'"'^^y- to receive the money for such investments, but not to receive 23 Ij. J. Q. B. 229 ; see Partnership Maclae v. Sutherland, 3 E. & B. 1 ; Act, 1890, s. 4. 23 L. J. Q. B. 229. (y) Yorkshire Bank v. Beatson, L. (d) Mason v. Ramsay, 1 Camp. 384 ■R. 6 C. P. D. 109 ; 49 L. J. 0. P. Lloijd v. Ashiij, 2 B. & Ad. 23 380 ; see Stephens y. Reynolds, supra. Jenkins v. Morris, 16 M. & W. 877 (z) Norton v. Seymour, 3 C. B. 792; Re Barnard, L. E. 32 0. D. 447 ; 55 see Ex p. Buckley, 14 M. & "W. 469. L. J. C. 935. See Bills of Exchange (a) See ante, p. 422 ; Sifkin t. Act, 1882, a. 17. Walker, 2 Camp. 308 ; Emly v. Lye, {e) Owen v. Van TJster, 10 C. B. 15 East, 7. 318 ; Meholls v. Diamond, 9 Ex. 154 ; (b) South Carolina Bank y. Case, 8 23 L. J. Ex. 1. B. & C. 427 ; Nicholson v. Richetts, 2 (/) Sogarth v. Latham, L. R. 3 E. & E. 497 ; 29 L. J. Q. B. 55 ; Q. B. D. 643 ; 47 L. J. Q. B. 339. Miles' Claim, L. K. 9 Ch. 635; 43 [q) Alliance Bank v. Kearsley,L.'R. L. J. C. 732. 6 C. P. 433 ; 40 L. J. C. P. 249 ; see (c) Galway v. Miitlhen-, 1 Camp. CjoJce \. S:oley, 2 Ex. 746. 403 ; Exp. Buckley, U M. & TV. 469 ; 456 PRINCIPAL AND AGENT. Paet II. Guaran- tees. Restriction of autho- rity. money for investment generally upon such secm-ities at their discretion ; and therefore he has general authority to bind his firm by receipts of the former kind, but not of the latter (A). — A partner in a mercantile firm has no general authority to bind the firm by a guarantee ; but such authority may appear from a previous course of dealing, and an exercise of it may be made good by a subsequent ratification {i). A guarantee by a partner in a firm of railv7ay contractors for the payment of goods supplied to a sub-contractor of the firm, though conducive to the object of the business, was held not to bind the firm {k). A guarantee given by one of a firm of solicitors for the debt and costs of an action, in order to release a client from arrest, was held not binding upon the firm, because not within the usual business of solicitors (1). — For the same reason a partner has no general authority to bind the firm by a reference to arbitration (m) ; nor by taking a lease of busi- ness premises (w) ; nor by joining in partnership with another firm (o) ; nor by taking shares in a company {p) . Nor by a bill of sale of partnership property can he effectually charge more than his own share (g). " 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) Slair v. Bromley, 2 Ph. 354 ; Sarman v. Johnson, 2 E. & B. 61 ; 22 L. J. Q. B. 297 ; Boiirdillon v. Roclie, 27 L. J. C. 681 ; Sims v. Brutton, 5 Ex. 802 ; Plumer v. Gngortj, L. R. 18 Eq. 621 ; 43 L. J. C. 803 ; see Cleather t. Twisden, L. R. 28 C. D. 340 ; 54 L. J. C. 408 ; Eughes y. Twisden, 55 L. J. C. 481. (j) EUenborough, C. J., Duncan y. Lowndes, 3 Camp. 478 ; see Sandi- lands T. Marsh, 2 B. & Aid. 673 ; Se Booker, L. K. 14 0. D. 317; 49 L. J. C. 400. (A-) Brettel v. iniliams, 4 Ex. 623 ; see Re Cmininghmn, L. R. 36 C. D. 532; 57 L.J. C. 169. il) Sasleham t. Younq, 5 Q. B. 833. [m) Adams t. Bankart, 1 C. M. & B. 681 ; Stead v. Salt, 3 Bing. 101 ; Matton V. Eoyle, 3 H. & N. 500 ; 27 L. J. Ex. 486 ; see Thomas v. Atherton, L. R. 10 C. D. 185; 48 L. J. C. 370. (n) Clements v. Jforris, L. E. 8 CD. 129; 47 L.J. C. 546. (o) Singleton v. Knight, L. E. 13 Ap. Ca. 788. {p) Niemann v. Niemann, L. E. 43 C. D. 198 ; 59 L. J. 0. 220. (?) Be Tamplin, 59 L. J. Q. B. 194. GENERAL AGENTS. 457 made " (r). And an express revocation by a partner of the Ch. ii. general authority of his. co-partner is inoperative, unless '- — '- brought to the notice of the party dealing with the latter (s) The authority of a partner is revoked by dissolution of the Dissolution partnership upon the retirement or death of a partner ; but if ship!^"^ the business is continued in the name of the old firm, a retiring party may still be made liable to persons continuing their usual dealings with the firm upon the credit of his being a partner, until the dissolution is sufficiently brought to their knowledge {t). " The mere publication of the dissolution in the Gazette is not sufficient to affect such persons with notice ; it is necessary that actual knowledge should be brought home to the persons who had previously given credit to the firm" {v). The retirement of a partner from a bank is suffi- ciently notified to customers by a change in the names upon the printed cheques used by them («). "Where a change is made in a firm by admission or retirement of a partner, a person continuing to deal with the firm may after notice elect to charge either firm, but he cannot charge both (y) . An iacoming partner is not liable to the then creditors of the old firm, though he may have agreed with the other partners to share the debts ; and a retiring partner is not discharged from the then existing debts without the consent of the creditors (s). A partner may bind the firm under his apparent general Contracts authority, though he act in fraud of the firm, unless the other partner- contracting party has notice of the fraud ; as where a partner ^^' buys goods for the firm and applies them to his own separate use (a) ; or where he sells partnership goods and misappro- priates the price (b) ; or where he receives money in the course (r) Fer cur. Bawhen v. Bourne, 8 Partnership Act, 1890, s. 36. M. & W. 710 ; see ante, p. 395, and (x) Barfoot v. Goodall, 3 Camp, see Partnership Act, s. 8. 157. (s) Galway v. Matthew, 10 East, (y) Scarf v. Jardine, L. B. 7 Ap. 264 ; Pok v. Leask, 33 L. J. C. 155. Ca. 345 ; 51 L. J. Q. B. 612 ; post, {t) Abbott, C. J., Goode \. Sarri- p. 685. son, 5 B. & Aid. 157 ; Carter v. What- (z) Shirreff v. Wilks, 1 East, 48 ; ley, 1 B. & Ad. 11 ; see Sart t. Vere v. Ashby, 10 B. & 0. 288; see Alexander, 2 M. & W. 484. the Partnership Act, 1890, s. 17. (m) Fer cur. Be Sodgson, L. E. 31 (a) Bond v. Gibson, 1 Camp. 185 ; C. D. 184 ; 55 L. J. C. 245 ; see see Bignold v. Waterhouse, 1 M. & S. Hendry v. Turner, L. E. 32 0. D. 255. 355 ; 65 I/. J. C. 562 ; and see the (5) Gordon v. Ellis, 7 M. & Gr. 607. 458 PRINCIPAI. AND AGENT. Paet II. of partnership business and misappropriates it (c) ; or where he negotiates a bill in the name of the firm and applies the proceeds to his own use ; and though the original taker of the bill had notice of the fraud, a subsequent bona fide holder for value may charge the partners upon it {d) . A person taking the bin with knowledge of a partial misappropriation of the proceeds may recover in respect of the residue as to which he has no such knowledge (e) . But in an action against the partners proof that the bill was negotiated in fraud of the firm casts upon the holder the burden of proving that he took it for value and without notice (/). If a partner gives a bill or other joint security of the firm for his own separate debt, it is presumptively fraudulent and to the knowledge of the creditor receiving it, who therefore cannot charge the other partners unless he can prove their consent and authority [g) ; and they may recover from him the biU or its amount (A). So a partner cannot pay his separate debt with what the creditor knows to be partnership money ; nor can he agree to set ofE his separate debt against a debt due to the firm ; and the creditor so dealing with one partner remains liable to the other partners to the extent of their interest in the debt(j). And generally if a partner uses the partnership name or pro- perty for his own use in any transaction which is within the scope of the partnership business, he is bound to account to the firm for the profits {h). Paying separate debt with partner- ship assets. Cost hook mining partner- ship. A cost book mining company is a common partnership modified by custom ; in which the shareholders are partners, but with the liberty to retire at any time upon receiving (c) Blyth V. Flaclgate, (1891) 1 Ch. 337; 60 L. J. C. 66. {d) Sioan v. Steele, 7 East, 210 ; Vere v. Ashbtj, 10 B. & C. 288 ; see Zlmjd V. Ashby, 2 B. & Ad. 23. (e) Wintle v. Growther, 1 C. & J. 316 ; EUston v. Deacon, L. R. 2 C. P. 20. (/) Eogg V. Sheen, 18 0. B. N. S. 426 ; 34 L. J. C. P. 153 ; see post, p. 528. (g) Lei'crsony. Lane, 13 C. B. K. S. 278 ; 32 L. J. C. P, 10 ; Sx p. Dar- lington Banlcing Co., 34 L. J. B. 10; see Garland y. Jacomb, L. E. 6 Ex. 216 ; see Partnership Act, 1890, s. 7. (/() Heilbut V. ^WiU, L. R. 5 C. P. 478 ; 39 L. J. C. P. 245. (s) Gordon v. Ellis, 2 C. B. 821 ; Kendal v. Wood, L. E. 6 Ex. 243 ; 39 L. J. Ex. 167 ; Piercij v. Fi/nneg, L. E. 12 Eq. 69 ; 40 L. J. C. 404 ; see »os*, p. 784. (i) Aas y. Benham, (1891) 2 Ch. 244 ; see Dean v. Macdowell, L. E, 8 0. D. 345, GENERAL AGENTS. 459 or paying their proportionate shares of the balance of the Ch. Iil. then existing assets and liabilities of the partnership (l). — - The manager or purser of a cost book mine has such general authority as is usual for working the mine ; presump- tively including the buying of necessaries for the mine upon credit, for which the co-partners become liable (w) ; but not including the borrowing of money for the payment of neces- saries or for any other purposes of the mine {n). Nor does the manager acquire authority by necessity to borrow money to save the property of the mine ; as where it is distrained for wages due (o). In the ordinary clubs for social purposes, managed by a Clubs, committee of members, the authority of the committee de- pends upon the rules of the club, and if the rules provide for the payment of entrance fees and annual subscriptions and for aU charges for the use of the club by the several members, they do not in general authorise the committee to pledge the credit of the members for work done or goods supplied for use of the club (p). And those members of the committee only are liable who give or sanction the orders for goods ; as the general authority of the committee is to buy with ready money only (q). The committee of a charitable institution supported by voluntary contributions is in a similar posi- tion (r) ; and the committee of a volunteer rifle corps (s). The jurisdiction of the Courts in protection of members of voluntary clubs is founded upon the rights of the member in the property of the club ; and the Court will grant an injunction against espelHng a member, if contrary to the rules of the club or the principles of justice; but the Court wiU not review the decision of a tribunal appointed by (1) Re Prosper Mining Co., L. R. 7 the Partnership Act, 1890, s. 1. Ch. 286 ; S,e FranJe Mills Co., L. R. (o) SawtayneT. Bourne, 7 M. & W. 23 C. D. 52 ; 52 L. J. C. 457. 596 ; see Re German Mining Co., i D. (m) Tredwen v. Bourne, 6 M. & W. M. & G. 19 ; 22 L. J. 0. 926. 461 ; Eawken v. Bourne, 8 M. & "W. {p) Flemyng-v. Hector, 2 M. AW. 703; Peelr. Thomas, 15 C. B. 714; 172. 24 L. J. C. P. 86 ; see Eseott\. Gray, (?) Todd v. Mmly, 7 M. & W. 427. 47 L. J. Q. B. 606. ()■) Burls v. Smith, 7 Bing. 705. (n) Ric/cetisv.Rennett. iC.B. 686; (s) Cross y. Williams, 7 H. & N, see Brown v. Byers, 16 M. & W. 252 ; 0"o ; 31 L, J", Ex. 145. Burmester v. N'orris, 6 Ex. 796 ; seq 460 PETNCIPAL AND AGENT. PaetII. the club for that purpose, if given regularly and in good faith (t). — In a club for buying coal, the rules required that the secretary should order coal, which should be paid for by the treasurer out of a fund raised by weekly contribution, and delivered to the members severally in proportion to their contributions ; it was held that the members became per- sonally liable to the merchant for the price of the coal as ordered by the secretary (m). (<) Jessel, M. B., Eigby v. Goniiol, 17 C. D. 615 ; Sairdv. Wills, L. E. L. R. 14 C. D. 487 ; 49 L. J. C. 328 ; 44 C. D. 661 ; 59 L. J. C. 673. Labouchere t. Wharnclifie, L. B. 13 (u) Gockerell v. Aucompte, 2 C. B. C. D. 346 ; Fisher v. Emne, 49 L. J. N. S. 440 ; 26 L. J. C. P. 194. C. 11 ; Dawkins v. Antrobus, L. R. 461 Chapter III. CAPACITY OF PARTIES. Sect. I.— POLITICAL STATUS. PAGE Capacity of persons to contract 461 Foreign states and sovereigTis 461 Ambassadors 462 Aliens — alien enemy — subject adhering to enemy — ^pri- soner of war 463 Convicts 465 The parties to contracts have hitherto been considered as Capacity consisting of persons having full capacity of contracting, in- dependently of any special condition or status of the person. But special conditions affect the capacity of a person to be- come party to a contract, and modify the rights and obliga- tions arising out of contract generally. Foreign States and sovereigns, as such, are exempt from Foreign being sued in the courts of this country ; unless they appear sovereigns. and voluntarily submit to the jurisdiction (a). Hence a con- tract made with a foreign government, as a bond or debt of such government, cannot be enforced against them by muni- cipal law {b) ; nor can the contracts of a foreign government be enforced against property of such government within the jurisdiction of the Court (c) ; also the public property of a foreign State or sovereign in public use is exempt from pro- (ffl) Brunswick v. King of Sanover, B. 171 ; 20 L. J. Q. B. 488. 6 Beav. 1 ; 2 H. L. C. 1. (c) Smith v. WeguiUn, L. R. 8 Eq. ip) Jessel, M. B., Ex p. Eiirjgins, 198; 38 L. J. C. 465 ; Twycross v. L. R. 21 0. J). 90 ; 51 L. J. C. 937 ; Dreyfus, L. R. 5 G. D. 605 ; 46 L. J. De Saber Y. Queen of Portugal, and C. blO; see MorganY.Laririere, Ij.TSi. Wadsworth v. Qmen of Spain, 17 Q. 7 H. L. 423. 462 CAPACITY OV PARTIES. Paet II. ceedings in rem (d) . Foreign States and sovereigns may sue as plaintiffs in the Courts of this country in their own names, and may submit to be sued as defendants (e) ; they thereby render themselves subject to any orders or conditions vfhich the Court may deem necessary to impose for the effectual prosecution of the suit, as for the purpose of discovery, enforcing of cross claims, the recovery of costs, and the like (/). — Colonial governors have no general exemption from being sued in the courts of the colony or of this country ; and, if sued, it is for the Court to decide how far the cause of action is excused as being an act of state within the com- mission of governor (p') . — Contracts with a de facfo foreign government are held by the Courts as binding upon their successors, though the latter claim de jure by a title para- mount [li). Ambassa- The ambassadors and public ministers or representatives of a foreign State, duly accredited to the sovereign of this country, are privileged from being sued in civil actions ; and therefore contracts cannot be enforced against them in the Courts of this country, unless they voluntarily submit or appeal to the jurisdiction («'). The privilege of the ambas- sador extends to his own person, and to all the officers of the legation, and to his domestic servants, except so far as they engage in trade {k). It extends to a British subject attached to a foreign legation ; unless excluded by an express provision (d) The Parkment Bdge, L. E,. 5 Mostyn v. Fahrigas, Cowp. 170; 1 Ad. 197 ; 48 L. J. Ad. 18 ; The Con- Smith's L. C. 635, 5th ed. ; Phillips stitution, L. R. 4 Ad. 39 ; The Char- v. Ei/re, L. R. 4 Q. B. 225 ; 38 L. J. kieh, L. E. 8 Q. B. 197 ; 4 Ad. 59 ; Q. B. 113 ; Shman y. Xew Zealand, see Tacasour v. Krnpp, L. E. 9 C. D. L. E. 1 C. P. D. 563 ; 46 L. J. C P. 351. 185. («) Xlnitcd States v. Wagner, L. E. ih) Peru Sepuilic r. Perurian Guano 2 Ch. 582 ; 36 L. J. 0. 624. Co., L. E. 36 0. D. 489 ; 56 L. J. {/) Prioleaii V. United States, Ij.'R. C. 1081; Peru Republic \. Drei/ftis, 2 Eq. 659 ; 36 L. J. C. 36 ; Peru L. E. 38 C. B. 348. Mepublic V. Weffuelin, L. E. 20 Eq. (i) Magdalena Xar. Co. v. Martin, 140 ; 44 L. J. 0. 583 ; Costa Pica v. 2 E. & E. 94 ; 28 L. J. Q. B. 310. Erlanger, L. E. 1 C. D. 171 ; 45 L. (i) 7 Anne, o. 12; Mansfield, C.'j., J. C. 145 ; The Xeu'hatlle, L. E. 10 Triqiiet v. Bath, 3 Burr. 1480 ; Park- Ad. 33; 4) L. J. Ad. 16. insonv. Potter, L. E. 16 Q, B. D. [g) Miisgrare v. Piili,/u, L. E. 5 Ap. 152 ; 55 L. J. Q, B. 153. Ca. 102 ; 49 L. J. P. C. 24 ; see POLITICAL STATUS. 463 of English law(/). — Where a foreign minister of legation, Ch. ill. having been sued, entered an appearance to the action and '—^ allowed it to proceed, it was held that he had thereby sub- mitted to the jurisdiction for the purpose of the action ; and the Court refused his subsequent appHoation to stay pro- ceedings; although he would retain his privilege against execution under it (»z) . There is at the present day no incapacity, as to property Aliens. or contract, incident to the political status of an ahen, or subject of a foreign State. As to personal estate and contracts there was no incapacity or disability at common law; and the incapacity of holding real estate as against the Crown, which existed at common law, was taken away by the Naturalization Act, 1870, 33 Vict. c. 14, s. 2, enacting that "real and personal property of every description may be taken, acquired, held and disposed of by an alien in the same manner in all respects as by a natural-born British sub- ject" (h) ; except that by s. 14, "Nothing in the Act shall qualify an alien to be the owner of a British ship," A foreigner may protect his rights by suing in the Courts of this country, subject to giving security for costs if he is out of the jurisdiction ; but he is not required to give security while within the jurisdiction, though temporarily so and only for the purpose of bringing the action (o) . An alien enemy, by reason of his personal status as a •'^^™ . . . . . enemy. subject of a hostile State, is deprived of all rights of suing during the continuance of war (/:>) ; unless he has licence of the Crown to reside and enjoy his rights (j). But the fact of becoming an enemy only suspends his remedies ; and on (1) Macartney t. Oarhutt, L. E. 24 54 L. J. C. 441. Q. B. D. 368. {p) Casseres v. Bell, 8 T. E. 166 ; ()») Taylor v. Best, 14 C. B. 487 ; Alcinous v. Nigrm, 4 E. & B. 217 ; 23 L. J. 0. P. 89. 24 L. J. Q. B. 19. («) Co. Lit. 2b; 42b; 129b; 1 (?) Co. Lit. 129b; Wells v. TFil- Blackst. Com. 372 ; Openheimer -f. Hams, 1 L. Eaym. 282 ; 1 Salk. 46 Zevy, Strange, 1082. Usparicha v. Noble, 13 East, 332 (o) Eedondo v. Chaytor, L. R. 4 Boulton v. Bobree, 2 Camp. 163 Q. B. D. 453 ; 48 L. J. Q. B. 697 ; Alciator v. Smith, 3 Camp. 245. Mrard y. Gassier, L. E. 28 C. D. 232 ; 464 CAPACITY OF PARTIES. Paet II. Eights of the Crown. Incapacity of alien enemy. Subject adheiing to enemy. Prisoner of war. return of peace he resumes the rights which existed to him at the commencement of the war, and which have not been seized by the Crown during the war(^). Accordingly an alien enemy was admitted to prove a debt under a bankruptcy, the payment of the dividend being reserved {q). — The claim of the Crown to confiscate the rights of alien enemies extends only to corporeal property, and not to debts and choses in action, as to which there is only a prohibition of payment while the war continues ; nor is any further right recognised by international law. Where a foreign State upon declaring war with this country issued an ordinance confiscating all debts due to British subjects, and ordering payment to be made "to commissioners ; the payment of a debt under such order was held to be no answer to an action for the debt in this country (r).— During war an alien enemy can acquire no new rights by contract, because any trading or contracting with a person in that position is illegal (s) . An alien enemy cannot draw bills upon this country ; the acceptance of them during war would be void, and an indorsement with notice would give no claim against the acceptor [t). But it seems that an alien enemy might acquire a title to a bUl by indorse- ment, on which he might sue upon return of peace ; or which he might transfer by indorsement to another («) . A British subject, or subject of a neutral State, adhering to an enemy, as by voluntary permanent residence or by trading in the enemy's country, is in the same position in regard to disability, as an alien enemy («). — A prisoner of war detained in an enemy's country is treated as an excep- tion, and by reason of necessity may draw bills for his sub- sistence and indorse them to an enemj^, who may recover upon them after the return of peace, or may transfer them [p) Le Bret v. Fapilhn, 4 East, 502 ; Harman v. Kingston, 3 Camp. 163 ; Flindt v. IVatiTs, 16 East, ii60. [q) Fx p. Boi/ssinaker, 13 Vos. 71. {r) Wolff Y. Oxholm, 6 M. & S. 92. («) Potts V. BcU, 8 T. B. 561 ; see post, p. 047. (t) Willison V. Fiitteson, 7 Taunt. 439. {n) Antoine v. Morshcad, 6 Taunt. 237 ; Bauhis v. Morshcad, 6 Taunt. 332. (x) McCmneU v. Hector, 3 B. & P. 113 ; O^Mcaleij v. TJ'its&n, 1 Camp. 482 ; Albreeht v. Siissmaii, 2 V. & B. 323 ; see Roberts v. Bardij, 3 M. & S. 633. POLITICAL STATUS. 4tJ5 by indorsement {y). And a prisoner of war in this country Oh. hi. may recover upon a contract for services rendered by him whilst a prisoner, as wages for working a ship home (s). — A pomioiie British subject, domiciled in a neutral State, may, as subject state. of that State, lawfully trade with an enemy of this country ; and an insurance effected by him in this country of his ships or goods engaged in such trade is lawful (a) . At common law upon conviction of felony all the goods Convicts. and chattels of the felon, including debts and cJioses in action, were forfeited to the Crown as a prerogative right {b). By the 33 & 34 Yict. c. 23, s. 1, forfeiture upon conviction Forfeiture or judgment for any treason or felony is abolished. S. 6 defines the expression "convict" to mean any person against whom judgment of death or of penal servitude shall have been pronounced upon any charge of treason or felony ; and s. 8 enacts that "No action at law or suit in equity incapacity for the recovery of any property, debt, or damage shall be brought by any convict;" "and every convict shall be in- capable of alienating or charging any property, or of making any contract." — By s. 9 the custody and management of the Adminis- property of a convict may be committed to an administrator, property, in whom, by s. 10, all the real and personal property, includ- ing choses in action, shall vest. By s. 12, " The administrator shall have absolute power to let, mortgage, sell, convey and transfer any part of such property;" and by s. 14 he may pay thereout the debts and liabilities of the convict. A convict may be made bankrupt, notwithstanding the above statute (c). — The capacity of a convict as to property and contract is restored by a pardon, or by completion of the sentence imposed {d). [y) Antoine t. Morshmd, 6 Taimt. (5) Zambert v. Taylor, 4 B. & C. 237 ; Sauiuz v. Morshead, 6 Taunt. 138 ; Barmtt v. London f N. W. My., 332. 5 H. & N. 604 ; 29 L. J. Ex. 334 ; (z) Sparenhnrgh v. Bannatyne, 1 B. see JSateman's Trusts, L. E. 15 Eq. & P. 163 ; Maria v. Mall, 2 B. & P. 355 ; 42 L. J. C. 553. 236. (c) JEx p. Graves, L. K. 19 C. D. 1 ; (a) Bell T. Meid, 1 M. & S. 726 ; 61 L. J. C. 1. see Marnjat v. Wilson, 1 B. & P. 430 ; [d) Leyman v. Latimer, L. K. 3 Ilouriet v. Morris, 3 Camp. 303. " Ex. D. 352 ; 46 L. J. Ex. 765. L. H II 466 CAPACITY OF PARTIES. Liatility of infant on contracts. Void contracts. Sect. II.— INFANTS. PAOB Contracts of infant voidable— void contracts 466 The Infants Relief Act, 1874— ratification under L. Ten- terden's Act 467 Promises to marry — marriage settlements 468 Liability of infant for wrongs — money obtained by fraud — contracts induced by fraud 469 Liabilities incident to property — ^leases — shares in company 470 Contracts of infant for necessaries — what are necessaries — apprenticeship — necessaries for wife and children — securities given for necessaries — money lent 472 Eights of infant on contracts — right to sue — recovery of money paid under voidable contract 476 At common law contracts made by a person during infancy, except contracts for necessaries, were, as a general rule, void- able at his election ; and in an action upon the contract he might plead that at the time of contracting he was an infant within the age of twenty-one years ; but after attaining full age he might give validity to the contract by a new promise, or by any other sufficient act of ratification (a). — At the same time both Courts of law and equity, for the protection of infants from undue influence and oppression, laid down the principle, that a contract made by an infant which the Court can pronounce to be clearly to his prejudice is absolutely void : as a bond or any contract imposing a penalty (6) ; a contract for the payment of interest (c) ; the acceptance of a bill of exchange or making of a promissory note (d) ; an admission of debt by an account stated, or any other ad- la) Lit. s. 259; Co.Lit. 78b; I7ib; H. Bl. 75; Ellenborough, C. J., per cur. SoU V. TFard,2StTa,nge,93S; JBaylis v. DineUij, 3 M. & S. 481; .?0!(cA v.PflrsoOT, 3 Burr. 1805; Ellen- Coleridge, C. J., MeaMii v. 2Iorris, borough, C. J., Cohen v. Armstrong, L. K. 12 Q. B. D. 354 ; 53 L. J. M. 1 M. & S. 724 ; per cur. TTiUiams v. 72. Moor, 11 M. & W. 263; see Order (c) JSaylis v. Dinelei/, supra ; Fisher XIX. 15, 20. V. Mowtray, 8 East, 330. (i) F.yre, C. J., Keane v. Boycott, Id) jRe Soltykqff, (1891)1 Q.B. 413; 2 H. Bl. 515 ; Saunders,,,, v. Mai-r, 1 60 L. J. Q. B 339 INFANTS. 467 missions (e). Upon tMs principle a marriage settlement in ^^- ^^• which the husband, an infant, deprived himself of all marital — rights in the wife's property was held Toid(/). And an apprenticeship or contract for an infant to serve during a term, with liberty for the master to stop the work and wages at any time, is void (g). The Infants Belief Act, 1874, 37 & 38 Yict. c. 62, enacts by infants , . , . , Eeliei Act s. 1 that "All contracts, whether by specialty or by simple con- tract, henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants, shall be absolutely void ; provided always that this enactment shall not invalidate any contract into which an infant may, by any existing or future statute, or by the rules of common law or equity, enter, except such as now by law are voidable." S. 2 enacts that "No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age." — The latter section applies to all contracts made during infancy, including those existing at the passing of the Act and not then ratified (h) ; and it deprives any promise or ratification made after full age of all actionable effect. The first section applies only to contracts entered into by infants for money lent, goods supplied, and upon accounts stated, and makes such contracts absolutely void. Therefore all other contracts of infants which were voidable before the Act remain voidable; but they cannot be validated («) Oliver v. JFooclrofe, 4 M. & W. (si) The Queen v. Zord, 12 Q. B. 650 ; see Mayor v. Collins, L. R. 24 757 ; Mealcin v. Morris, supra ; see Q. B. D. 361 ; 59 L. J. Q. B. 199 ; Leslie v. Fitzpatrick, L. E. 3 Q. B. Eedfern v. Sedfern, (L891) P. 139; B. 229 ; 47 L. J. M. 22 ; 2)« J?™«c«sco 60 L. J. P. 9. T. JBarmim, L. R. 45 C. D. 430 ; 60 (/) Eingsman v. Kingsman, L. R. L. J. 0. 631. 6 Q. B. D. 122 ; 50 L. J. Q. B. 81. (h) Ex p. Eilhle, L. R. 10 Ch. 373 ; See Slocomie v. GUM, 2 Bro. 0. C. 44 L. J. B. 63. 545. H h2 468 CAPACITY OF PAllTiES. Ratifica- tion under L. Tenter - den's Act. P^™ 11- by promise or ratification ; and such contracts, if valid in other respects, continue valid until repudiated by plea of in- fancy or otherwise («').— A judgment by default upon a void- able contract made during infancy is rendered void by the Act as being a ratification, and therefore does not constitute a debt sufficient to support a petition in bankruptcy (Jc) ; or a charging order under 1 & 2 Yict. o. 110, s. 14 (l). The doctrine of ratification after full age, as existing before the Infants Belief Act, 1874, was subject to Lord Tenter- den's Act, 9 Geo. IV. c. 14, s. 5 (repealed by the Statute Law Revision Act, 1875), which 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 ratification 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 ratification of a promise made during infancy was compared to the ratification of an act of an agent, and any written instrument sufiicient for that pur- pose was held sufficient to ratify the contract of an infant (m). The written document was for the Court, and not the jury, to construe; and it was essential for it to contain, not merely a sufficient statement of the debt or contract, but a recognition of it as an existing liability («). A contract of an infant by deed, could only be ratified by deed, or by an estoppel in law of as high authority as the deed itself (o). toS^i^^ Mutual promises of marriage made during infancy are within the second section of the Infants Eelief Act, 1870 ; and the mere continuance of the relationship under such promises is held to operate as a ratification only, and (i) See Duncan v. Dixon, L. R. 44 C. D. 211 ; 69 L. J. C. 437. (k) Exp. Kibile, supra. (l) Onslow's Trusts, 44 L. J. C. 628; L. E. 20 Eq. 677. ()h) Tcr cur. Harris v. IVall, 1 Ex. 130; see Mawson v. Blanc, 10 Ex 206 ; 23 L. J. Ex. 342. in) Sowc V. Hopwood, L. E. 4 Q. B. 1 ; 38 L. J. Q. B. 1 ; see Sartky v. TFharton, 11 A. & E. 934 ; Hunt v. Massey, 5 B. & Ad. 902 ; Maccord v. Osborne, L. R. 1 C. P. D. 568 : 45 L. J. C. P. 727. (o) Baylis v. Dinelcij, 3 M. cfe S. 477 ; see Cornwall v. Hawkins, 41 L. J. C. 435. INFANTS. 469 is therefore void of les-al effect (q) . Any evidence of a Ch. in. . .„ . . ,. Sect. II. new contract distinct from mere ratification raises a question of fact; and where the original promise was conditional only, an absolute promise after full age was held sufficient to found a new contract (r). The appointment of the wedding day by the parties after full age, which before was inde- finite, was held to be evidence from which a jury might and ought to infer a distinct actionable contract to marry (s). — A contract or covenant for a settlement upon marriage Infants made by an infant is in general voidable by the infant settle- after coming of age ; though it is binding upon a husband of ™™*=- full age as against his marital rights to the wife's property (t) . In particular cases such a contract may be absolutely void upon the equitable ground that it is manifestly to the preju- dice of the infant («*). But a voidable contract for a marriage settlement made by an infant is not within the Infants Relief Act, s. 1 ; and therefore it is valid until repudiated {x). — By an Act to enable infants to make binding settlements on marriage, 18 & 19 Yict. c. 43, infants can make valid con- tracts for settlement of their property on marriage with the sanction of the Court. But the Court cannot compel the execution of the marriage settlement of an infant, before or after coming of age («/). Infancy is no defence to actions for wrongs independent Liability of infant f oj wrongs. of contract ; but it may be pleaded in all cases where the ™*^''* *™ cause of action is substantially founded on a contract, though the claim may be framed in the form of tort. Thus in the (q) Coxhead v. Mullis, L. E. 3 C. (m) See ante, p. 467 ; Kingsman v. P. D. 439 ; 47 L. J. C. P. 761. Singsi7ian, L. R. 6 Q. B. D. 122 ; 60 ()■) Northcote v. Doughty, L. E. 4 L. J. Q. B. 81 ; Duncan v. Dixon, C. P. D. 385. L. E. 44 0. D. 211 ; 59 L. J. C. 437. Is) Ditcham v. Worrall, L. R. 5 C. [x) Duncan v. Dixon, supra ; see P. D. 410 ; 49 L. J. 0. P. 688. Smith v. Lucas, L. E. 18 C. D. 631 ; (t) Nelson v. Stoclcer, 4 D. & J. 458 ; Wilder v. Figott, L. E. 22 C. D. 263 ; 28 L. J. C. 760 ; Sharpe v. Foy, L. E, 52 L. J. C. 141 ; Burnaiy v. Equi- 4 Ch. 35 ; Smith v. Lucas, L. E. 18 table Reversion Soc, L. E. 28 C. D. C D. 631 ; Troioell v. Shenton, L. E. 416 ; 54 L. J. 0. 467 ; Garter v. Silber, 8 C. D. 318 ; 47 L. J. C. 738 ; (1891) 3 Ch. 554 ; 60 L. J. C. 716. Hamilton V. Hamilton, (1892) "W. N. (y) -Re Leigh, L. E. 40 0. D. 290 ; 10; post, p. 476. 58 L. J. C. 306: Bolton v. Bolton, (1891) 3Ch. 270; 60 J.. J. C. 689, 470 CAPACITY OF PARTIES. Money obtained by fraud. Contract induced by fraud. Pabt II. case of a bailment of goods to an infant for use, he cannot be charged with the loss of or damage done to the goods under a claim of injury to the property, where the claim is sub- stantially for breach of a contract annexed to the bailment («) . But where an infant has obtained money by fraudulent or wrongful means, under such circumstances that the owner might waive the wrong and claim restitution of the money as an implied debt, infancy is no defence to the claim, which is substantially founded upon the wrong (b). And an infant trustee is liable for loss arising from breach of foust (c). — Where an infant has induced a contract with him by a frau- dulent misrepresentation that he was of full age, he is not precluded from pleading his infancy in avoidance of the contract ; nor does the fraudulent misrepresentation afford any answer upon equitable grounds to the plea of infancy (d). Nor can he be charged with damages caused by the invalidity of the contract in an action founded upon the fraud as a sub- stantive wrong (c). But where an infant fraudulently repre- sented himself to be of full age in order to obtain credit, and became bankrupt after full age, it was held upon equitable grounds that the debt was provable in the bankruptcy (/). An infant trading and incurring trade debts is not chargeable with fraud, as impliedly representing himself to be of age ; he cannot be made bankrupt on such debts, nor are they provable in bankruptcy (g) . Lia,bLiities An infant becoming possessed of real estate or other per- property maneut property to which obligations are incident, is liable to of infant, thosc obligations as long as he continues in possession of the («) Jennings v. Sundall, 8 T. E. 335 ; see Surnard v. Haggis, 14 C. B. N. S. 45 ; 32 L. J. C. P. 189 ; The Queen v. McDonald, L. R. 15 Q. B. D. 323. (J) See ante, p. 71 ; Kenyon, C. J., Sristow V. Eastman, 1 Esp. 172. {e) SciUthorpe v. Topper, L. E. 13 Eq. 232; 41 L. J. C. 266. (d) Bartlett v. IFclls, 1 B. & S. 836; 31 L. J. Q. B. 57; De Roo v. Foster, 12 0. B. N. S. 272. See Knight Brace, V.-C, Stikeman v. Dawson, 1 D. & Sm. 110. (e) Johnson v. Fye, 1 Lev. 169 ; 1 Keb. 913 ; Green v. Greenbank, 2 Marsh. 485 ; Price v. Seicelf, 8 Ex. 146 ; see Lempricre v. Lange, L. R. 12 C. D. 676. (/) Ex p. Unity Banking Ass., 3 D. & J. 63; 27L. J. B. 33. (g) Ex p. Jones, L. R. 18 C. D. 109; 50 L. J. C. 673; overruUng Ex p. Lynch, L. R. 2 C. D. 227 ; 45 L. J. B. 48. INFANTS. 471 property. " As the estate vests, the burthen upon it must Ch. ni. continue to be obligatory until a waiver or disagreement by '■ — '- the infant takes place, which, if made after full age, avoids the estate altogether, and revests it in the party from whom the infant purchased ; if made within age, suspends it only, because such disagreement may be again recalled when the infant attains his maiority "(/»). Thus, if an infant takes a Lease of 1 Tl "f 3 Tl f" lease of land and enters into possession, he becomes liable to the rent and other incidents of the estate, until he disagrees to it ; and by continuing in possession after full age he affirms the lease and remains absolutely liable for the rent and cove- nants during the term («). So if an infant makes a lease with a reservation of rent, and after full age accepts the rent, he affirms the lease and cannot afterwards avoid it {k) . An infant admitted to a copyhold estate, by retaining possession after coming of age, affirms the admittance and is liable for the fines due {I). — Upon a like principle if an infant enters into a partnership, and does not disaffirm the partnership upon coming of age, he becomes liable on contracts sub- sequently made with the firm upon the credit of his continu- ing a partner (m) . — The same principle applies to a registered Infant shareholder in a company, who cannot avoid his liability by holder, pleading that he contracted for the shares and became holder during infancy, without further pleading that he has dis- agreed to the contract and repudiated the shares («). And if an infant shareholder, after coming of age, accepts any benefit from the shares, or does any other act of confirmation, he may be taken to have affirmed his OAvnership; or if he delays for an unreasonable time to get his name removed (A) Fer cur. North Western Sy. v. 489. M'Michael, 5 Ex. 127. [l) Evelyn y. Chichester, 3 Burr. (i) Kirton v. Elliott, 2 Bulstr. 69 ; 1717. S. C, nom. Ketley's case, Brownl. (»») Goode v. Harrison, 5 B. & Aid. 120; Ketsey's case, Cro. Jac. 320; 147; «?!<«, p. 457, n. (e). Ellenborough, C. J., Baylis v. Sine- (n) Cork and Bandon Ry. v. Caze- ley, 3 M. & S. 481 ; Jessel, M. K., nove, 10 Q. B. 935; Newry Ry. v. Exp. Jones, L. R. 18 C. D. 117; see Coombe, 3 Ex. 565; North Western Lempriere v. Lange, L. E. 12 0. D. Ry. v. M'Michael, supra; Leeds Ry. 675. V. Fearnley, 4 Ex. 30 ; Birkenhead {/i) Ashjield V. Axhjield, Sir W. Ry. t. Pilcher, 5 Ex. 114. Jones, 157; Smith v . Low, 1 Atk. -472 CAPACITY OF PARTIES. Faet II. from the register (o). A transfer of shares to an infant or hy an infant is voidable ; but the acceptance and registration of the transferee by the company may preclude them from objecting (p). The certificate of registration of a company is not invalidated by reason that one or more of the persons who signed the memorandum of association were infants at the time signing {q). — In the case of the winding up of a company, a transfer of shares to an infant becomes abso- lutely void against the liquidator and creditors, and the transferor is placed upon the list of contributories (r) ; unless the infant shareholder has come of age and accepted the ownership of the shares before the winding up (.s). A director is held personally responsible for loss to the company caused by his allotting shares to an infant {t). Contracts of infant for neces- saries. 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, apparel, necessary physic, and such other necessaries, and likewise for his good teaching or instruction, whereby he may profit himself afterwards " (w). And the term " necessaries " here is not confined to the strict sense of such articles as are neces- sary to the support of life, but is extended to articles of use and instruction fit to maintain the particular person in the state, station and degree of life in which he is placed ; and whether certain articles are necessary or not according to the state and condition of the infant, or in the special position in which he is placed, is a question of fact that may be sub- (o) Cork and Bandon By. v. Cazenore, supra; JDublin Ry . Y . Blade , 8Ex.l81; 2'2 L. J. Ex. 94 ; BbbeU'scase, L. R. 5 Ct. 302 ; 39 L. J. C. 679 ; see Mart's case, L. E. 6 Eq. 512 ; Wilson's case, L. R. 8 Eq. 240 ; 38 L. J. C. S26 ; Baker's case, L. R. 7 Ch. 115. (p) Gooeh's case, L. E. 8 Ch. 266 ; 42 L. J. 0. 381 ; Parson's ease, L. R. 8 Eq. 656; Bee Stikeman v. Dairson, 1 De G. & Sm. 90. (q) Be Nassau Co., L. R. 2 C. B. 610: 45 L. J. C. 585. ()•) Mann's case, L. R. 3 Cli. 469 (1); Capper's case, ib. 458; Curtis' case, L. R. 6 Eq. 455 ; 37 L. J. C. 629 ; Maitland's case, 38 L. J. C. 554 ; Weston's case, L. R. 5 Ch. 614 ; 39 L. J. C. 753 ; Si/mou's ease, L. R. 5 Ch. 298; 39 L. J. C. 461. (s) Zumsden's ease, Jj. R. 4 Ch. 31 ; MiteheU'sease, L. R. 9 Eq. 363; 39 L. J. C. 199. (0 B:x p. Wilson, L. R. 8 Ch. 45 ; 42 L. J. C. 81. («() Co. Lit. 172 a. INFANTS, 473 mitted to a jury (x) ; but wkether tliere is any reasonable Ch. hi. evidence of the article being necessary is a preliminary ques- tion of law for the Court (y) . — According to the decisions, a what are To I 1 j> • J! J. • neces- iivery for a servant may be necessary for an infant m a earies. position to require such an attendant (s) ; also a watch and jewellery (a) ; and a regimental uniform for an infant member of a volunteer corps (6). Horses may be necessary for an infant, where required for his position or his health (c) ; and teaching and instruction suitable to his position are neces- saries (rf). — On the other hand it has been decided that dinners supplied to an undergraduate at the university at his private rooms (e), and the hiring and use of horses and car- riages by him, are not necessary unless special circumstances be shown ( /) ; that cigars and tobacco are prima facie not necessary {g) ; that articles of jewellery are prima facie not necessary; nor a gold cup intended for presentation to a friend (A) ; and, in general, that articles of ornament and luxury are prima facie not necessaries and require special circumstances to make them such (i). An infant may bind himself by an indenture or contract Appren- 1 10 G SiU-T) of ajjprenticeship for his instruction ; and the apprenticeship operates upon the infant by imposing a legal status or relationship to the master, and is attended with special laws and regulations by statute and custom (k) . The infant is not bound by the indenture of apprenticeship by way of contract to serve, and cannot be sued in law or equity for damages or for an injunction against a breach of the service ; for which reason the parent or some other siu'ety is usually joined in {x) Peters v. Fleming, 6 M. & W. (1891) 2 Q. B. 375; 60 L. J. Q. B. 42; per cur. Chappie v. Cooper, 13 M. 740. & W. 258; Wharton v. Mackenzie, 5 (e) Brooker t. Scott, 11 M. & W. Q. B. 606 ; Walter v. Everard, (1891) 67 ; Wharton v. Mackenzie, 5 Q. B. 2 Q. B. 369 ; 60 L. J. Q. B. 738. 606. {y) Ryder v. Wombwell, L. R. i (/) Harrison v. Fane, 1 M. & G. Ex. 32 ; 38 L. J. Ex. 8. 550. (z) Bands v. Slaney, 8 T. R. 578. (g) Bryant v. FLichardson, L. E. 3 \a) Peters v. Fleming, 6 M. & W. Ex. 93, n. (3) ; 14 L. T. N. S. 24. 42. (A) Eyderv. Wombwell, L. R. 3 Ex. (b) Coates v. Wilson, 5 Esp. 152. 90 ; 4 ib. 32; 38 L. J. Ex. 8. {c) Hart V. Prater, 1 Jur. 623 ; see («) Pyder v. Wombwell, supra. Clowes V. £7Voke, 2 Stv. 1101. (k) See Bum's Justice, Appren- {d) Per cur. Walter y. Everard, tipes ; Smith's Master and Servant. 474 CArAOlTY OF PAUTIES. Past II. the indentures who covenants OB. the infant's behalf (^). But the infant may validly covenant in the deed of apprenticeship to pay a premium for such instruction as is necessary to his position {m). An apprentice cannot avoid the apprenticeship during infancy; but he may avoid it on coming of age, unless under a special custom to bind for a longer period. But the avoidance of the apprentice does not discharge the covenant of the parent who has covenanted for him («). An apprenticeship or contract of service containing terms which are oppressive or prejudicial to the infant is wholly void against him (o). A contract of apprenticeship may be made with a trading corporation as the master (p). As the law permits an infant to marry, though he is not bound by a promise to marry, all necessaries supplied to wife and children are, in point of law, necessaries to the infant (q). Accordingly, an infant may be bound to pay for the funeral of his deceased wife ; and an infant widow for the funeral of her deceased husband (»•) . A settlement by an infant of property on marriage is in general voidable ; but a settlement by a husband in favour of an infant wife is so far a necessary for her, according to hsr state and condition, that she may validly retain a solicitor to prepare it, and become liable for the costs ; though by custom the husband is bound to indem- nify her (•?). An infant may contract a debt for necessaries, although he has a suflBoient income to pay with ready money {t) ; and the party supplying necessaries to an infant is not, as a general Neces- saries for wife and children. Infant already supplied. (I) Gylbert v. Fktoher, Cro. Car. 179 ; Branch v. Eioingion, 2 Dougl. 518 ; Kenyon, C. J., Ex p. Davis, 5 T. R. 716; De Francesco v. Barnum, L. K. 43 C. D. 165 ; 59 L. J. 0. 161. (m) Walter v. Everard, (1891) 2 Q. B. 369; 60 L. J. Q. B. 738. (m) Exp. Davis, 5 T. R. 715 ; Ex p. Gill, 7 Eaat, 376 ; Ex p. Eden, 2 M. & S. 226 ; King y. TVigston, 3 B. & C. 48"! ; Cuming v. Hill, 3 B. & Aid. 59. (o) See ante, p. 467, n. {g). {p) Burnley Coop. Boo. v. Casson, (1891) 1 Q. B. 76 ; 60 L. J. M. 69. (?) Turner v. Trisiy, 1 Stra. 168 ; per cur. Cliapple v. Cooper, 13 M. & W. 259. (r) Chappie v. Cooper, supra; see Jenkins v. Tucker, 1 H. Bl. 91 ; as to the Hahility for funeral of wife, Bradshaw v. Beard, 12 0. B. N. S. 344 ; 34 L. J. C. P. 273 ; Be McM'i/n, L. B. 33 C. D. 675 ; 65 L. J. C. 845. («) SelpsY. Clayton, 17 C. B. N. S. 553 ; 34 L. J. 0. P. 1 ; see ante, p. 468. (0 Burghart v. Sail, 4 M. & ^\ . 727 ; Parke, B., Peters v. Flcmina, 6 M. & W. 46. INFANTS. 475 rule, bound to inquire into his pecuniary circumstances before Ch. ni. giving credit (z(). But the fact of the infant being already '- — '- sufficiently supplied is material to the question of the neces- sity of charging him with a further supply at the same time ; though the party so charging him was ignorant of his existing supply (x) • as in the case of an infant living with his parents and supplied by them, or of an undergraduate at the university who is supplied with certain necessaries by his college («/). An infant cannot be charged on a bill of exchange or Securities promissory note although given in payment for necessaries (2) ; neces- nor bind himself to an amount due for necessaries by an ^'^'^'^^• account stated (a) ; nor by executing a warrant of attorney or cognovit {b), or a bond with a penalty (c) ; nor charge himself with the payment of interest {d) ; nor charge his estate by a . mortgage deed (e) for a sum due for necessaries. But an infant may take a debt due for necessaries out of the Statute of Limitations by an acknowledgment in writing signed by hun(/). — An infant cannot be charged at law for money Moneyient lent or upon any security for money lent, though for the ° ™ '^^ • purpose of expending it in necessaries (g) ; but he may be charged with an implied debt for money paid for his use, in respect of money which has been expended by another in supplying him with necessaries {h). Where an infant bor- rowed money for the purpose of providing himself with necessaries, and after attaining full age devised his lands to (u) Brayshaw v. Eaton, 5 Bing. N. (a) Tmeman v. Surst, 1 T. E. 40 ; C. 231 ; 7 Scott, 183 ; see Saltan v. Ingledew t. Douglas, 2 Stark. 36 ; Gib, 5 Bing. N. C. 198 ; 7 Scott, 117. Oliver v. Woodroffe, 4 M. & W. 653. [x) Barnes v. Toye, L. R. 13 Q. B. {ti) Oliver v. Woodrofe, supra ; D. 410 ; 53 L. J. Q. B. 667 ; John- Saunderson v. Marr, 1 H.' Bl. 7.5. stone V. Maries, 19 Q. B. D. 609 ; 57 (c) Co. Lit. 172 a ; see ante, p. 466. li. J. Q. B. 6, dissenting iiomSyder (d) Fishery. Mowlray, 8 East, 330. V. Wombwell, L. R. 3 Ex. 90 ; ib. 4 («) Martin t. Gale, L. E. 4 C. D. Ex. 42. 428 ; 46 L. J. C. 84. [y) Bainbridge v. Plelcering, 2 W. (/) IFillins, or Williams v. Smith, Bl. 1325 ; Burghart v. Angerstein, 6 4 E. & B. 180 ; 24 L. J. Q. B. 62 ; 0. & P. 690 ; Wharton v. Mackenzie, see post, p. 866. 8 Q. B. 606. (f/) Earle t. Feale, 10 Mod. 67 ; 1 («) Williamson Y. Watts, 1 Camp. Sa.lk.S87; see Knox y. Bushell, 3 G.H. 552 ; He SoUy/coff, (1891) 1 Q. B. 413 ; N. S. 334. 60 L. J. Q. B. 339. (A) Fllis v. Ellis, 5 Mod. 368 ; 12 ib. 197; 1 Ld. Eaym. 344. 476 CAPACITY or PARTIES. Paet II. trustees for payment of his debts, the debt contracted during infancy was held to be within the trust («). The Court has jurisdiction to order that debts for necessaries for the past maintenance of an infant shall be charged upon the infant's estate Qc). Maintenance gratuitously supplied by a parent to an infant cannot be claimed as a debt in the administration of his estate (/). Rights of infant on contracts. Eight to sue. Money paid by infant under a contract. A contract which is voidable by an infant is binding upon the other contracting party until avoided ; the privilege of avoidance being that of the infant only. Thus a contract of mutual promises to marry is voidable by an infant party ; but he may sue the other party for a breach of promise (/«). So a contract or settlement on marriage affecting the property of an infant wife is valid against the husband of full age, and binds his rights in the wife's property ; but such a settle- ment appears to be inoperative since the Married Women's Property Act, 1882, has deprived the husband of his marital rights of property («). — An infant may sue upon a contract during his minority (o) ; but he cannot appear in person, nor appoint an attorney, nor become liable for costs, and therefore he is required to sue by a next friend (ji). And an infant may proceed against a debtor in bankruptcy (q) . But a Court of Equity will not in general grant specific per- formance of a contract at the suit of an infant, because the remedy is not mutual until he has come of age (r). Where an infant has paid money under a contract for which the consideration remains executory, upon avoiding the contract he may recover the money, as upon an entire failure of consideration. Thus an infant having signed an (i) Marloio v. Pitjield, 1 P. Wms. 558 ; see Beare v. Soutten, L. B. 9 Eq. 161. (k) He EamiUon, L. R. 31 C. D. 291 ; 55 L. J. C. 282. (I) lie OottreU's Estate, L. R. 12 Eq. 566; 41 L. J. C. 70. Un) Holt V. Ward, 2 Strange, 937. [n) See ante, p. 4C9 ; Vaisey on Settlements, p. 34. (o) Warwick v. Bruce, 2 M. & S. 205. (p) OUrery. Woodroffe, 4 M. & W. 650 ; see Rhodes v. Swithenhnnk, L. R. 22 Q. B. D. 577 ; 58 L. J. Q. B. 287. (. 722. MAKKIED WOMEN. 479 of a married woman to contract (b). The principle of the Ch. nr. Sect III. above rules is that at common law husband and wife are '■ — - regarded as but one person, in respect of property and rights of action (c). But the Court of Chancery upon principles of equity Capacity enabled a married woman through a trustee to hold sepa- rate property, with full power of use and disposition, exclu- sively of her husband ; and therefore a married woman acquired in equity a capacity of contracting by giving her creditor a remedy against her then disposable separate pro- perty, which she was presumed to make chargeable with her contracts {d). The Court allowed a married woman to sue in respect of such property without joining her husband ; but by a next friend, in order to give security for costs. And proceedings might be taken against her to charge her separate property with her contracts without joining her husband, but joining the trustee and aU other necessary parties (e) . — Now " married women may sue and be sued as provided by the Married Women's Property Act, 1882" (/), that is, as if they were unmarried. And they are subject to the ordinary rules as to giving security for costs ((/). The Married "Women's Property Act, 1882, 46 & 46 Vict. Mamed c. 75 (consolidating and amending the law and repealing Property former Acts), enacts: — S. 1 (1) "A married woman shall be separate capable of acquiring, holding, and disposing of any real or Property, personal property as her separate property, in the same manner as if she were a feme sole, and without the interven- tion of any trustee." S. 2. Every woman who marries after {b) Burch v. Leake, 7 M. & a. 377 ; 830 ; 47 L. J. C. 469 ; Atu-ood t. Lovell r. Walker, 9 M. & "W. 299 ; Chichester, supra ; Butler v. Butler, see Order XXI. r. 20 ; ante, p. 373. L. R. 16 Q. B. D. 374 ; 55 L. J. {c) Lit. ss. 168, 291 ; Co. Lit. 3 a, Q. B. 65. 112 a; 187a, b; Selbome, L. C, (/) Order XVL r. 16; see post, Cahill V. Cahill, L. E. 8 Ap. Ca. 425. p. 480. (d) Bulme t. Tenant, 1 Bro. C. C. [g) He Isaac, L. E. 30 C. D. 418 ; 16; 1 W. & T. L. C. 6th ed. 536; 64 L. J. C. 1136; see ije Thompson, Turner, L. J., Johnson t. Gallagher, L. E,. 38 C. D. 317 ; 67 L. J. C. 3 D. F. & J. 494 ; 30 L. J. C. 306 ; 748 ; Whittaker y. Kershaw, L. E. Ficard V. Sine, L. E. 5 Ch. 274. 44 C. D. 296 ; hut see Re Somerset, {e) Bobcrts v. Bvans, L. E. 3 0. D. 66 L. J. 0. 733. 480 CAPACITY OF PAKTIES. F-^BT II- the Act shall he entitled to hold and dispose of as her sepa- rate property "all real and personal property which shall belong to her at the time of marriage or shall be acquired by or devolve upon her after marriage." S. 6. Every woman married before" the Act shall be entitled to hold and dispose of as her separate property " all real and personal property, her title to which, whether vested or contingent, and whether in possession, reversion, or remainder shall Capacity to accrue after the commencement of this Act." — >S. 1 (2). "A married woman shall be capable of entering into and render- ing herself liable in respect of and to the extent of her sepa- rate property on any contract, and of suing and being sued, either in contract or in tort or otherwise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or against her ; and any damages or costs recovered by her in any such action or proceediag shall be her separate property ; and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property." — Contracts g. J (3). "Every contract entered into by a married woman chargeatle ^ ' •' '' , on separate shall be deemed to be a contract entered into by her with prope y- jespeot to and to bind her separate property, unless the con- trary be shown." And s. 1 (4). Such contract "shall bind not only the separate property which she is possessed of or entitled to at the date of the contract, but also all separate property which she may thereafter acquire." Conditions The contract of a married woman under the Act, as before of contract, the Aot, depends for validity upon her possessing at the time of contracting disposable separate property, which she is pre- sumed to make chargeable with the contract, and it lies upon the creditor to prove that she then had such property (A). If she has no separate property at the time of contracting, or no such property as she can presumptively intend to make (A) Palliser v. Gurimj, L. R. 19 Q. B, D. .'ilO ; 56 L. J. Q. B 546- Stogdon v. Zee, (1891) 1 Q. B. 661 ; 60 L. J. Q. B. 669. MAREIED WOMEN. 481 chargeable, the contract is void and will not he chargeable Ch. hi. Sect ITI against after-acquired separate property; as in the case of '■ — - her possessing nothing but wearing apparel for herself and children («). Nor in such case can the contract be charged against her personally after the death of her husband (/). A contingent separate property is not sufficient to validate the contract ; as a trust to receive the income of policies upon the husband's life for her separate use (A). Sect. 19 of the Act expressly provides that " nothing in this Property- Act shall interfere with or affect any settlement or agree- striction ment for a settlement made or to be made, whether before yl^pation!' or after marriage, respecting the property of any married woman, or shall interfere with or render inoperative any restriction against anticipation attached to the enjoyment of any property or income by a married woman under any settlement, will or other instrument ; but no restric- tion against anticipation contained in any settlement of a woman's own property to be made or entered into by herself shall have any validity against debts contracted by her before marriage "(/). — Hence a contract of a married woman whose separate property is subject to a restriction against anticipa- tion at the time of contracting is void of effect ; and it is not chargeable against subsequently-acquired property (m) . The removal of the restraint by the death of the husband does not validate the contract (w), nor does it render the pro- perty chargeable under a prior valid contract (o) . A restraint on anticipation can only be imposed upon separate property, and it is effectual only during marriage ; and the limitation of such restraint upon property does not imply a trust for (i) Leak T. Driffield, L. K. 24 367 ; post, p. 1067. Q. B. D. 98 ; 59 L. J. Q. B. 89. (m) Soberts v. Watkins, 46 L. J. ( )■) Ortner v. Fitzaibion, 50 L. J. C. Q. B. 652 ; Fike v. Fikgiibon, L. B. 17. 17 0. D. 454 ; 50 L. J. C. 394 ; Leak {k) King v. Lucas, L. E. 23 C. D. v. Driffield, supra. 712 ; 53 L. J. 0. 64 ; Re Shakespear, («) Roberts t. Watkins, supra; see L. R. 30 C. D. 169 ; 55 L. J. C. 44 ; Stogdon\. Lee, (1891) 1 Q. B. 661 ; 60 see Floioer y. Fuller, L. R. 15 C. D. L. J. Q. B. 669. 665; 49 L. J. C. 784. (o) Beckett v. Tasker, L. R. 19 [T) As to debts contracted before Q. B. D. 7 ; Felton v. Harrison, marriage, see Faij v. Robinson, L. R. (1891) 2 Q. B. 422 ; 60 L. J. Q. B. 25 Q. B. D. 467; 59 L. J. Q. B. 742. L. 1 I 482 CAPACITY OF rA14TIES. PaetII. separate use to support it (p). Eestraint of anticipation is equivalent to restraint of alienation ; and a covenant to settle after-acquired property of the wife does not apply to property which is limited to her upon such terms (q) . Judgment against married Costs of action. Operation of judg- ment. The judgment in an action upon the contract of a married woman adjudges the sum and costs recovered against her to be payable out of her separate property and not otherwise ; and orders that execution thereon be limited to the separate property not subject to any restriction against anticipation ; unless by reason of s. 19 of the Act the property shall be liable to execution notwithstanding such restraint (r). S. 19 expressly avoids any restriction against anticipation contained in a settlement of a woman's own property made by herself against debts contracted by her before marriage (s). And it seems that a restriction so made by a woman to defeat credi- tors would be void against all debts contracted after as well as before marriage (t). — The costs of an action against a married woman are chargeable in the judgment against her separate property {u) ; or may be set off against costs payable to her (v). So also with the costs of an unsuccessful action by a married woman {w). But a married woman plaintiff can- not in general be compelled to give security for costs {x) . A plaintiff having obtained judgment may take money out of Court which was paid in by a married woman to abide the event (y). Before the Act the judgment against a married woman could be enforced only against the separate property which she was entitled to at the time of contracting and which remained available at the time of the judgment (s). Now by the Act, s. 1 (4) her contract binds not only such property (;;) Stoffdon r. Zee, (1891) 1 Q. B. 661 ; 60 L. J. Q. B. 669. (7) Se Ciiirey, L. R, 32 C. D. 361 ; fl5 L. J. C. 906. (r) rer cur. Scoil v. Morley, L. E. 20 Q. B. D. 132 ; 57 L. J. Q. B. 45. (s) See ante, p. 481. (t) ISnrsill V. Tanner, L. E. 13 Q. B. D. 691. (u) Morrell v. Cotcan, L. R. 6 C. D. 166; 47 L. J. C. 73. («>) Pelton v. Harrison, (1892) 1 Q. B. 118; 61 L.J. Q. B. 144. {w) Galmoye v. Cowan, 68 L. J. C. 769. (x) Me Isaac, 30 0. D. 418 ; 54 L. J. C. 1136 ; see ante, p. 479, n. (g). ly) Bird v. Barstow, (1892) 1 Q. B. 94. {z) Pike V. Fitzgibhon, L. E. 17 C. D. 454 ; 50 L. J. C. 394. MARRIED WOMEN. 483 " but also all separate property whioh she may thereafter Ch. III. acquire " (a) ; provided in any case that it is not subject to a '. 1 restriction against anticipation. And as to property subject to restriction against anticipation the judgment can be enforced against income whioh has been paid to the married woman and invested by her ; also against arrears of income which have accrued due and payable at the date of the judg- ment ; but not to income or proceeds accruing due since {b) . And by the Conveyancing Act, 1881, s. 39, " notwithstanding a married woman is restrained from anticipation, the Court may, if it thinks fit, where it appears to the Court to be for her benefit, by judgment or order, with her consent, bind her interest in the property." The Court will make such order for the payment of debts, where the married woman is in all other respects entitled to the fund or has the disposition of it (c). — The judgment does not extend, under s. 4, to pro- After perty acquired upon or after the death of the husband, because property, property cannot be held as separate property by an unmarried woman (cl) ; nor to separate property subject to restriction against anticipation whioh is discharged from the restriction by the death of the husband, because it then also ceases to be held as separate property (p). But the judgment extends to separate property acquired during a subsequent marriage, when the separate use is capable of attaching (/). — The judg- Attach- ment is so far personal that the creditor may attach a debt ™g^* °* due to the married woman by a garnishee order (g). A married woman may also be brought into an action by a third party notice, and charged upon a guarantee or indemnity (h). But there is no power to commit a married woman to prison (a) Ante, p. 480. Q. B. 742. (4) Butler v. Cumpston, L. R. 7 Eq. (e) Felton v. Harrison, supra. 16 ; 38 L. J. C. 35 ; Chapman v. Big(/s, (f) Jay v. Bobinson, L. R. 25 Q. B. L. E. 11 Q. B. D. 27 ; Galmoye v. D. 467 ; 59 L. J. Q. B. 367. Cowan, supra ; Cox T. Bennett, (1891) (g) Solthy v. Hodgson, L. R. 24 Q. 1 Gh. 617 ; 60 L. J. C. 651. B. D. 103 ; 59 L. J. Q. B. 46 ; see (c) Hodges v. Hodges, L. R. 20 C. Be Couan's Estate, L. R. 14 C. D. D. 749 ; 51 L. J. C. 649 ; see Miehell 638 ; 49 L. J. 402 ; Webb v. Stentoii, T. Miehell, 60 L. J. P. & M. 46 ; Re 11 Q. B. D. 518 ; 52 L. J. Q. B. 584. Milner's Settlement, (1891) 3 Ch. 647. [h) Gloucestershire BanlcT.Philtipps, (d) Be Shakespear, L. R. 30 C. D. L. R. 12 Q. B. D. 533 ; 58 L. J. Q. 169 ; 55 L. J. 0. 44 ; Felton v. Har- B. 493. rison, (1891) 2 Q. B. 422 ; 60 L. J. 1 l2 484 CAPACITY OF PARTIES. Paet II. Specific perform- ance. Injunc- tion. Power of appoint- ment. uader the Debtors Act, 1869, s. 5, for default in paying the judgment debt («). The Court cannot give judgment against a married woman personally to compel her to the specific performance of a contract : as to complete the sale or purchase of an estate (k) ; or to grant a lease (/) . But an agreement to purchase, or to take a lease, is binding in respect of her separate property, which thus becomes chargeable with the purchase-money or rent or any other debt or damages due under the agree- ment (m). — The creditor of a married woman before obtaining judgment against her has no specific charge upon her separate property ; and therefore cannot claim an injunction to restrain her dealing with it («). If she contracts other debts, her creditors do not rank in order of priority, but are entitled to be paid pari passu in the administration of her estate (o) . And her debts are subject to the Statutes of Limitation, like other debts of the same kind ; though in effect chargeable only upon her separate property ; and though there is in fact no such property chargeable when the judgment is obtained (p). By the Act of 1882, s. 4, "The execution of a general power by will of a married woman shall have the effect of making the property appointed liable for her debts and other liabilities in the same manner as her separate estate is made liable under this Act." Before this enactment the principle of equity that the exercise by will of a general power of appointment rendered the fund assets for payment of debts was held not to apply to debts of a married woman, because the fund was not her separate estate {q). Property settled (i) Scott Y. MorUy, supra ; Draycott V. Sarrison, L. B. 17 Q. B. D. 147. {k) Francis v. Wigzell, 1 Madd. 258 ; see Williams v. Walker, L. B. 9 Q. B. D. 576. (I) Ayktt V. Ashton, 1 M. & Cr. 105. ()») Gaston v. Frankum, 2 D. & Sm. 561 ; Picard v. Huie, L. B. 5 Oh. 274. [n) Hobinson v. Pickering, L. B. 16 C. D. 660 ; 50 L. J. C. 527 ; Pike v. Fitzgibbon, L. B. 17 0. D. 454 ; 60 L. J. C. 394 ; see Barber v. Gregson, 49 L. J. Ex. 731. (o) Turner, L. J., Johnson r. Galla- gher, 3 D. F. & J. 494 ; 30 L. J. C. 310 ; see Shattock v. Shattock, L. B. 2 Eq. 182 ; 35 L. J, C. 509. (;;) Me Hastings,!,. B. 35 0. D. 94; 56 L. J. C. 631 ; see Bodgson t. Williamson, L. B. 15 C. D. 37. (?) Vaiighan v. Vanderstegen, 2 Drcvr. 165 ; 23 L. J. C. 793 ; Sobday V. Vcters, 28 Bear. 354 ; 29 L. J. C. 780 ; Kay, J., He Paper, L. B. 39 0. D. 491 ; 58 L.J. 0. 215. MARPIED WOMEN. 485 upon a person for life, with a general power of appointment, Ch. hi. and the remainder in default of appointment, to the repre- '- sentatives is held to be equivalent to absolute ownership ; and property so settled to the separate use of a married woman is chargeable with her contracts (r) ; but not if the remainder is to another person (s). The Act applies to all kinds of contracts and debts of a Contracts married woman : as bonds, bills of exchange and promissory Act. notes (f) ; a contract to take shares in a company and to pay calls and all liabilities of a shareholder (m) ; including an indemnity of the transferor against calls with which he may become chargeable after the transfer (x) ; also a guarantee for goods supplied or for a loan of money to her husband (y) . Debts incurred for necessaries under circumstances in which the husband is not liable are presumptively charged upon the wife's own separate property (s). The Act has not a retro- spective effect upon contracts made before the Act came into operation ; but a consent order made since the Act to refer to arbitration an action upon such a contract is a contract within the Act, which is chargeable upon separate property (a) . A married woman may enter into a contract jointly with another person, or jointly with her husband ; and may sue or be sued as a joint plaintiff or a joint defendant, her interest being in respect of her separate property (6). — Before the Act a mar- Contracts implied in law. ()•) London Bank of Australia r. Cumpston, L. E. 7 Eq. 16 ; 38 L. J. Lempriere, L. E. 4 P. C. 572 ; 42 L. J. C. 35 ; lie London and Bombay Bank, P. C. 49 ; Mayd^. Field, L. R. 3 0. D. L. R. 18 C. D. 581 ; 50 L. J. C. 557. 587 ; 45 L. j. C. 699 ; see Hodges v. [x] Whittakcr v. Kershaw, L. R. 45 Hodges, L. R. 20 0. D. 749 ; 51 L. J. C. D. 320 ; 60 L. J. C. 9. C. 549. (y) Morrellv. Cowan, L. R. 6C. D. [s) Exp. Gilchrist, L. R. 17 Q. B. 166; 47 L. J. C. 73 ; Flower y. Bull.r, D. 521 ; 55 L. J. Q. B. 580 ; see Ue L. R. 15 C. D. 665 ; 49 L. J. C. 781. Van Hagan, L. R. 16 C. D. 18; 50 (z) Hodgsony. Williamson, L. R. 15 L. J. 0. 1 ; Wittoughhy v. Holyoahe, C. D. 87. L. R. 22 0. D. 238 ; 52 L. J. C. 331. (a) Comlan v. Leyland, L. R. 27 it) Norton y. Turvill, 2 P. Wms. C. D. 632 ; 54 L. J. C. 123 ; Turnbull 144 ; Hulme v. Tenant, 1 Bro. C. C. v. Forman, L. R. 15 Q. B. D. 234 ; 16 ; M'HenryY. Danes, L. R. 10 Eq. 54 L. J. Q. B. 489. 88; 39 L. J. C. 866; Latouche v. (*) Beasley y . Roney , (1891) 1 Q. B. Latouche, 3 H. & C. 576 ; 34 L. J. 509 ; 60 L. J. Q. B. 408 ; Hoare v. Ex. 85. Niblett, (1891) 1 Q. B. 781 ; 60 L. J. (m) Mathewman' s case, L. R. 3 Eq. Q. B. 565. 781 ; 36 i. J. 0. 90 ; see Butler v. 486 CAPACITY OF PARTIES. Past II. ried woman was not chargeable with contracts or debts merely implied in law, for which there could be no presumed inten- tion to charge her separate estate : as an implied debt for money received by her for which the consideration has wholly failed (c) ; or for money received under a mistaken claim {d) ; or for money received upon a trust, which she has misapplied to her own use («). But the Act, s. 1 (2), which renders a married woman liable to be sued, " either in contract, or in tort, or otherwise, in all respects as if she were a, feme sole," seems to include such claims as those above mentioned (/). Contracts Before the Act a married woman could not be made liable induced by .in j; j.t_ fraud. for fraudulently representing herself as a feme sole for the purpose of obtaining a contract, or it seems for any fraud in- volving the warranty of a representation ; because she would thereby be made indirectly liable for a contract ((/). But since the Act she may be charged with the contract directly, though it may be voidable at her suit by reason of the Fraud. fraud (h) . — Under the Act a married woman may be sued alone without joining her husband for wrongful acts, includ- ing fraud ; or the husband and wife may be joined in the action as at common law ; the judgment is against both per- sonally, and execution may issue against the wife's disposable separate property («). Before the Act the property of a married woman could not be charged with frauds or wrongs committed by her during the marriage ; the husband alone being liable to an execution against his property (A-). But a married woman was compelled in equity to make good false (c) Eldon, L. C, Jones v. Sarris, 266 ; 30 L. J". C. P. 367. 9 Ves. 497 ; Aguihr v. Aguilar, 5 (A) See Collett v. Dickenson, L. E. Madd. 414. 11 0. D. 687. (d) Wriffhtv. Chard, iBre-w. 673; (») Serosa \: Xattciitmyh. li.'R. 17 29 L. J. C. 82 ; see Se Dixon, L. R. Q. B. D. 177 ; S.5 L. J. Q. JB. 375 ; 35 C. D. 4 ; 56 L. J. C. 773. see AmoU v. n'oodhams, L. R. 16 (e) TFainfordv. Eeyl, L. R. 20 Eq. Eq. 29 ; 42 L. J. C. 578 ; Thomas v. 321 ; 44 L. J. C. 567. Trice, 46 L. J. C. 761 ; Stanlei/ v. (/) Ante, p. 480 ; see TVhittakerv. Stuiilci/, L. R. 7 D 689 ■ 47 L J Kershaw, L. R. 45 C. D. 320 ; 60 C. 256. ' ' L- J. C. 9. {k) TTainfordY.Scil, L. R. 20 Eq. (g) Lircrpool Adi'lphi Ass. Y. Fair- 321; 44 L. J. C. 567; see Esher hurst, 9 Ex. 429 ; 23 L. J. Ex. 165 ; M. R., Scott y. J/oj-fcy, L. R 20 Q Cannam v. Farmer, 3 Ex. 698 ; see B. D. 124 Wrii/ht V. Leonard, 11 0. B. N. S. MARRIED WOMEN. 487 representations made hj her respecting her property, and to Ch. III. dispose of the property according to the representation ; as '- — - where a married woman allowed a conveyance to be made of an estate in fee, by concealing that it was in fact a life estate only of which she had the reversion, on becoming a widow she was compelled to convey her reversion (l). Where a mar- ried woman obtained money on a mortgage of her property, by representing that she was a widow and entitled to convey it, upon her death the mortgagee was held entitled to an equitable charge upon the property as against the heir (;»). And where a husband and wife obtained money on mortgage, by concealing that it had been settled upon their marriage, the mortgagee was given priority over their rights under the settlement (h). But where a married woman mortgaged her separate property by concealing that it was settled with a restriction against anticipation, it was held that no charging order could be made upon the dividends, the restriction being absolute (o). By the Act of 1882, s. 1 (2), a married woman is made RigMs of TIP- -n • I 1 • married capable of sumg, " either in contract, or m tort, or otherwise, woman on in aU respects as if she were a feme sole;" and "any damages or costs recovered by her in any such action shall be her separate property" (jo). Before the Act a married woman acquired a right of action upon a contract only where she supplied the consideration, or, as it was said, where she was the meritorious cause of action. Upon such contract she might sue alone, subject to the irregularity of procedure in not joining her husband. The husband might sue alone in exercise of his marital right of reducing the wife's personal property into his own possession ; or he might join the wife as party, thereby admitting the interest to remain in her, in (l) Savage v. Foster, 9 Mod. 35 ; 38 L. J. C. 650. see NichoU v. Jones, L. K. 3 Eq. 709 ; (o) Stanley v. Stanley, L. R. 7 C. D. 36 L. J. C. 562. 589 ; 47 L. J. 0. 256. [m) Vaughan v. Vanderstegen, 2 ( p) Ante, p. 480 ; see Beasley v. Drew. 363 ; 23 L. J. C. 793. Money, (1891) 1 Q. B. 509 ; 60 L. J. («) Sharpe v. Fog, L. E. 4 Ch. 35 ; Q. B. 408. see Lush's Trusts, L. R. 4 Ch. 591 ; 488 CAPACITY OF PARTIES. Paet II. -whicli case the right of action would survive to the wife upon the death of the husband {q) : as in the case of a contract to pay a married woman for rendering personal skill and services (r) ; or a bond or covenant made to a married woman (s) ; or a promissory note made to a married woman ; which primA facie imports a consideration moving from her as the payee {t) ; and upon which the husband might sue in his own name or jointly with the wife (?,() ; or he might indorse the note and give a good title to the indorsee {v). An indorsement by the wife operated only by authority of the husband, and might be in her own name or his according to the authority given ix). On the other hand a married woman before the Act could not sue for the price of goods sold or for money lent by her, as all personal chattels and money in her actual possession became in law the property of her husband, and she could only deal with them as his agent (y) . But a married woman might sue for money received by a third party to her use, which had not been reduced into possession {z). Where the husband paid money into an account opened with a banker in the name of the wife, it was held presumptively to remain the property of the husband only, although payable to the wife's order until he interfered to revoke the authority (a) . And where the husband opened an account with a banker in his own and wife's name, with authority to the wife to draw, it was held [q) Per cur. Welter v. Baker, 2 Wils. (v) Mason v. Morgan, 2 A. & E. 423 ; see Bidgooi v. Way, 2 W. Bl. 30 ; Dawson v. Prince, 2D & J 41 ■ 1236 ; Base v. Bolder, 1 H. Bl. 114 ; 27 L. J. C. 169. DaltonY. Midland By., 13C. B. 474; (x) Goies v. Davis, 1 Camp. 485; 22 L. J. C. P. 178. Frcstwick v. Marshall, 7 Bing. 565 ; ()■) Brashford y. BuclAngham, Cro. Diiidus v. Bradwcll, 5 C. B. 683. Jao. 77; Holmes \. Wood, cited 2 (y) Holmes v. Wood, cited 2 "VVils. Wils. 424. 424 ; Xing v. Basingham, 8 Mod. 341 ; (s) Day V. Padrone, 2 M. & S. Bird \. Peagrmn, 13 C. B 639- 22 396 (b) ; Bendix v. Wakeman, 12 M. L. J. C. P. 166 ' & W. 97. (s) Fleet v. Bcrrios, L. R. 4 Q. B. (t) PhilUskirk v. Fluckwell, 2 K. 500 ; 38 L. J. Q. B. 257 ; Jones v. & S. 393 ; Gaters v. Madeley, 6 M. & Cuthbertson, L. K. 8 Q. b' 604 • 42 W. 426 ; Guyard v. Sutton, 3 C. B. L. J. Q. B. 221 ; see Parker v. Lech- 153. mere, L. E. 12 C. D. 256. [u) Burroughs v. Moss, 10 B. & C. {a) Lloyd v. Ptighe, L E 8 Ch 558 ; see McNeilage v. Holloway, 3 88 ; 42 L. J. C. 282 ; see Parker v.' Ex. 136. Zechmere, supra. MAKKIEU WOMEN. 489 that the balance at his death remained his property {b) . — Ch. hi. Where the wife paid income of her separate property into '- '- her husband's banking account, which he habitually drew upon for his own use, it was held presumptively a gift of such income to the husband, which could not be recalled (c). — Upon a bond or covenant made to husband and wife Contracts jointly, the husband before the Act might sue alone as band and claiming the whole interest or might join the wife as co- ^ plaintiff {d). Where a promise was made to husband and wife in consideration of forbearance of a claim in which the wife had an interest, it was held that the wife might join in an action (e). And the wife might join with her husband in suing upon an account stated with them, concerning money due to the wife in her own right, or for which she might sue in her own right (/). — Upon a lease by husband and wife of Lease ty ,1 • n , 1 1 . , . 1 , / ■, . , n 1 husband the wite s land m which the covenants are made with both, and wife, the husband might sue alone or might join the wife, but at the death of either his interest ceased ((/). So husband and wife might sue jointly for money payable for the use and occupation of the wife's land (A). But a lease made by the husband alone aifects his own interest only, and the wife could not join in suing («'). Married women before the Act under certain circumstances Special 1 • -t •!. s^ L L' 1 • • capacity of acqiiired a special capacity or contracting and smng ; as m married the case of the husband becoming civilly dead (/r) . — A married "*^°™™- woman did not acquire a separate capacity by her husband civilly being an alien, although he resided abroad (l) ; nor, it seems, ^^^^' by his becoming an alien enemy (?«) ; nor by her husband alien. (i) Marshall v. Crutwell, L. R. 20 Eill v. Saunders, 4 B. & C. 529. Eq. 328 ; 44 L. J. C. 504. (A) See Bidgood v. Way, 2 W. Bl. (c) Caton V. Sideout, 1 Mac. & G. 1236. 599 ; ISdward v. Cheyne, L. B. 13 (i) Sarcourt v. Wyman, 3 Ex. 817. Ap. Ca. 385. (k) Co. Lit. 132 a ; 133 a ; per cur. (d) AnJcerstein v. Clark, i T. K. Hatchett v. BaddeUy, 2 W. Bl. 1082 ; 616. " Exp. Franks, 7 Bing. 762 ; see ante, (e) Wills T. Nurse, 1 A. & E. 65. p. 465. (/) Johnson v. Xucas, 1 E. & B. (I) Stretton v. Busnach, 1 Bing. N. 659 ; 22 L. J. Q. B. 174. C. 139 ; Barden y. Keverberg, 2 M. & (ci) Beaver v. Lane, 2 Mod. 217 ; W. 61 ; see Marsh v. Hutchinson, 2 Aleierry v. Walby, 1 Str. 229 ; Ar- B. & P. 226. nold V. Eevoult, 1 B. & B. 443 ; see (m) See De Wahl v. Braune, 1 H. 490 CAPACITY OF PARTIES. Pabt II. becoming bankrupt, and absconding abroad (w) ; nor by living apart from her husband, though with a separate main- Separate tenanoe(o). — By the custom of London a married woman, custom of trading in the City on her sole account, may sue or be sued °° ""■ as a feme sole upon contracts concerning her trade, and may be made bankrupt ; and her trade creditors are entitled to the trade assets as against her husband (/;). The custom is con- fined to the City and the City courts ; the married woman trader cannot sue or be sued upon the custom in the superior BaiJi- courts ((7). — Except under this custom a married woman, though having separate property, could not be made bank- rupt (r). But the Act of 1882, s. 1 (5), has enacted generally that, " Every married woman carrying on a trade separately from her husband shall, in respect of her separate property, be subject to the bankruptcy laws in the same way as if she were 2, feme sole " («). Divorce. A sentence of divorce a mema et tore pronounced in the Ecclesiastical Court did not affect the status of the parties or the legal incapacity of the wife to bind herself by contract (;!). The Divorce and Matrimonial Causes Act, 20 & 21 Vict, c. 85, which established the Court for Divorce and Matri- monial Causes in place of the Ecclesiastical Courts, gave juris- diction to declare a marriage to be dissolved; the effect of which is to place the wife in the position of &feme sole with respect to property and contract {u) ; but without affecting settled rights as then existing (r). A decree nisi in a suit for & N. 178 ; 25 L. J. Ex. 343 ; Derrij Armstrong, L. E. 17 Q. B. D. 521 • V. Duchess of Mazarine, 1 L. Raym. 55 L. J. Q B 678 • S C L K 21 147 ; Salk. 646. Q. B. D. 264 ;" 57 L. J. qI B." 553 {n) Williamson v. Dawes, 9 Bmg. (t) Faithorne v. Slaqiiire, 6 M. & S. 292. 73 ; lewis v. Lee, 3 B. & C 29 1" (o) Hatchett v. Baddelei/, 2 W. Bl. (m) See IFells v. Malbon 31 Beav 1079 ; Lean v. Sehutz, 2 W. Bl. 1195. 48 ; 31 L. J. C. 344 ; inikinson v {p) Lavie v. Phillips, 3 Burr. 1776, Gibson, L. E. 4 Eq. 162 ■ 36 L j' ■where see the custom stated. C. 646. • - > (?) Caudell v. Shaw, 4 T. E. 361 ; {x) Fitzgerald v. Chapman 45 L J Seam v. Webb 2 B. & E 93 C 23 ; L.^E. 1 C. D. iesT'sZton l'. (r) Ex p. Jones, L. E. 12 0. D. Sturgeon, L. R. 2 Ch. D 318 • 4=i T, 484; 48L. J. B. 109. J. C 633 Spb Phim,l.t t> J (s Re Gardiner, L. E. 20 Q. B. D. L. E. 1 Q. B D iz"-'^U\ T'o 249 ; 57 L. J. Q. B. 149. See Re B. 277. • ^'S" . 40 -L,. J . Q. MARRIED WOMEN. 491 dissolution, before it is made absolute, does not affect her Ch. hi. position (y). A divorced wife retains her married name, as '■ '- being her name in fact, until she obtains another by reputa- tion {z) . She cannot take a legacy under a former will of the husband by the designation of his " widow" («). The same Act gives iurisdiction to decree a judicial separa- Jiniicial ?• n-T-n j'ji separation. tion ; and by s. 25, " m every case of a judicial separation, the wife shall, whilst the separation shall continue, be considered as a feme sole with respect to property of every description which she may acquire " ; also by s. 26, " for the purposes of contract, and wrongs and injuries, and suing and being sued in any civil proceeding." Property acquired during judicial separation is not bound by a covenant in the marriage settle- ment to settle all property acquired " during the coverture " {b). By the same Act, s. 21, a wife deserted by her husband may Order of obtain an order of a magistrate or of the Court for the pro- tection of her property ; which places her in the like position in all respects, with regard to property and contracts, and suing and being sued, as- she would be if she obtained a decree of judicial separation (c) . At common law, husband and wife being considered as one Contracts person, there could be no valid contract between them {cl). husband But as to the wife's separate property in equity, unless and wife, restrained from alienation, she might contract with her hus- band, and might sue or be sued by him, as a. feme sole ; and the same capacity continues with extended remedies under the Married Women's Property Act, 1882 (e). And as to legal property of a married woman in which the husband acquired a partial interest at common law, they might make a settle- ment of the property which, being supported by their (y) Norman v. ViUars, L. R. 2 Ex. N. S. 179 ; 30 L. J. C. P. 314 ; Mason D. 359 ; 46 L. J. Ex. 579. v. Mitchell, 3 H. & C. 528 ; 34 L. J. (z) Fendall v. Goldsmid, L. K. 2 P. Ex. 68 ; Nicholson v. Drury Building D. 263. Co., L. E. 7 C. D. 48 ; 47 L. J. 0. (a) Boddington v. Clariat, L. R. 25 192. 'C. D. 685 ; 63 L. J. C. 475. {d) Ante, p. 479. (b) Dawes v. Creuke, L. E. 30 C. [e) See ante, p. 479 ; Butln- v. D. 500 ; 64 L. J. C. 1096. Butler, L. E. 16 Q. B. D. 374 • 55 (c) Midland Sy. Co. v. Pye, 10 C. B. L. J. Q. B. 55. 492 CAPACITY OF PAKTIBS. Paet XI. Loan to husband. Contracts concerning conjugal rights. respective interests, was valid, not only between themselves and those claiming under them, but also as against a subse- quent purchaser for value without notice (/). — The Married Women's Property Act, 1882, enabled a married woman to acquire and hold and dispose of any real and personal property as her separate property ; and to contract with her husband in respect thereof. But by s. 3, "Any money or other estate of the wife lent or entrusted by her to her husband for the purpose of any trade or busiaess carried on by him or otherwise, shall be treated as assets of her husband's estate in case of his bankruptcy, under reservation of the wife's claim to a dividend as a creditor, after but not before all claims of the other creditors of the husband for valuable consideration have been satisfied." Under this section a loan to a husband is presumptively for his trade or business, and it lies upon the wife to prove that it was not lent for that purpose {g) ; in which case it is not within the Act (A) . The section does not apply to a loan to a firm of several partners, including the husband («). It applies in the case of bankruptcy only, and not to the administration of an insolvent estate of a deceased husband ; in which a widow, as administratrix may retain assets in full payment of the loan {k) . A wife may also contract with her husband concerning conjugal rights. They may execute a deed or agreement of separation ; and either party may enforce covenants therein, not to sue for restitution of conjugal rights (/). They may make such an agreement without the intervention of a trustee for the wife ; and the wife may sue for arrears of an allow- ance which the husband has thereby contracted to pay (in). A wife is also competent to enter into an agreement with her {/) Teasdale v. Braithwaite, L. R. 4 G. D. 85; 46 L. J. C. 396; see Cahill V. CiiJtill, L. E. 8 Ap. Ca. 420. (g) Re Genese, L. E. 16 Q. B. D. 700 ; 55 L. J. Q. B. 118. (A) He Tidsimll, 56 L. J. Q. B. 548. (i) Re Tuff, L. E. 19 Q. B. D. 88 ; 56 L. J. Q.' B. 440. (k) Re May, L. E. 45 C. D. 499 ; 60 L. J. C. 34. {I) IFikon f. jrihoii, 1 H. L. C. 538 ; 23 L. J. C. 697 ; Hunt v. Simt, i B. F. & J. 221 ; 31 L. J. C. 161 ; Marshall y. Marshall, L. E. 5 P. & D. 19 ; 48 L. J. P. & D. 49 ; Resant v. Wood, L. R. 12 C. D. 605 ; 48 L. J. C. 497, See post, p. 661. {in) McGregor v. McGregor, L. E. 21 Q. B. D. 424; 57 L. J. Q. B 691. MARRIED WOMEN. 493 husband respecting litigation between them, as a compromise Ch. hi. of a suit for divorce, or for judicial separation, or for restitu- '■ — - tion of conjugal rights ; and the Court wiU stay proceedings according to their agreement (n). A married woman is presumptively invested with a certain Contract ■^ .01 wife as authority to contract as agent for her husband (o) . It is a agent of delegated, not an inherent authority ; the wife can bind her husband only as agent, and the party seeking to charge him with a contract of the wife, must prove the authority (p). The authority may be referred to two sources : cohabitation, during which the wife is presumptively authorised to manage the domestic affairs of her husbaqd ; and necessity, caused by the husband refusing or failing to maintain the wife (q). — The husband may also give the wife special authority upon occasions ; and he may become liable upon contracts made by his wife on his behalf by subsequently ratifying them (r). Cohabitation raises a presumptive authority in the wife to Authority contract for her husband in all domestic matters ordinarily station. '^' entrusted to a wife ; as the reasonable supply of goods and service for the use of the husband, his wife, children and household; such goods and service being suitable in kind, sufficient in quantity, and necessary in fact according to the condition in which they live ; beyond which the authority does not extend («) . A wife who is permitted by her husband to remain in the possession and management of his house, and family during his absence, retains the like presumptive authority {t) . And a woman cohabiting with a man as his reputed wife, though not married, is presumed to have autho- rity to bind him for goods suitable to that position which he («) Stanes v. Stanes, L. E. 3 P. (s) jEtherington-v.Farroit,lj.JS,a,jia. 44 ; 47 L. J. P. 19 ; Sart v. Sart, 1006; Zaner.Ironmmffer, 13M. &W. L. K. 18 C. D. 670 ; 50 L. J. C. 697. 368 ; Senmi; v. Teakle, 8 Ex. 680 ; (p) See anU, p. 389. 22 L. J. Ex. 241 ; Jewshury t. New- [p] Fer air. Eastland v. Burchell, bold, 26 L. J. Ex. 247 ; Phillipson t. L. E. 3 Q. B. D. 435 ; 47 L. J. Q. Sayter, L. E. 6 C. P. 38 ; 40 L. J. B. 500 ; Selbome, L. C, Sebenham 0. P. 14. T. Mellon, L. E. 6 Ap. Ca. 31. (il) WiUes, J., Cooper v. Lloyd, 6 C. ((/) Willes, J., Cooper v. Zloyd, 6 B. N. S. 521. See Blades ». Free, 9 C. B. N. S. 521. B. & C. 167 ; Smout v. Ilberry, 10 M. (r) 8eepost, p. 499. &W. 1. 494 CAPACITY OF PARTIES. Pabt II. permits her to assume (m). — The agency of the wife presumed Revocation from Cohabitation, like any other agency, may be revoked by rity.'^ °' the husband ; and it is in general sufficient if such revocation be notified to the wife, though notice of it do not reach the party dealing with her {x). The presumptive authority of the wife is also revoked or rebutted by the husband providing her with funds sufficient to pay for the goods required with- out pledging his credit (y). But where there have been previous dealings of the same kind through the wife with the same person - acknowledged by the husband, so giving a special consent to the agency, the revocation is not effectual without notice to the person dealing upon faith in the con- tinuance of the agency (s). Upon the above principle the agency of a wife is held to be revoked by insanity of the husband which disables him from acting for himself ; but if he has previously given a special authority to the creditor to trust the v/if e, it is not revoked until notice is given of the insanity («). Authority An authority in the wife may also arise from necessity, necessity. The husband is bound by law to maintain his wife in a manner suitable to his estate and condition ; and if he fail to supply such maintenance, except under certain circumstances of justification, she becomes entitled from necessity to pledge his credit to procure it ; nor can the husband, so long as the necessity lasts, deprive her of such authority even by express prohibition to the party who supplies her (b). Where the wife is living apart from her husband, there is no presumption in favour of the authority ; and it lies upon the creditor seek- ing to charge the husband to prove the circumstances of the («) Sohinson v. Mahon, 1 Camp. p, 496. 245 ; Mimro v. JDe Chenmnt, 4 Camp. (z) See ante, p. 405 ; Mmn v Sams 215 ; Skides v. Free, 9 B. & C. 167 ; 12 Q. B. 460 ; Ld. Blaekbiim| Jit/an T. Sams, 12 Q. B. 460. Debenham v. Jlel/oii, supra. [x) Jolly V. Sees, 15 0. B. N. S. (a) Brew v. Xiiiin, L. R 4 Q B 628 ; 33 L. J, C. P. 177 ; Debenham D. 661 ; 48 L. J. Q. B. 591. ■V. Mellon, L. E,. 6 Ap. Ca. 24; 50 (i) Manhiiy. Seott, 2 Smith's L C L. J. Q. B. Ifo. 9th ed. 466 ; Soiilton v. rmilici 2 (y) Kolt V. Brien, 4 B. & Aid. 252 ; Str. 1214 ; SeadY. Legm-d, 6 Ex 036 • M.zeii V. rid.; 3 M. & W. 481 ; 20 L. J. Ex. 309 ; Campbelf C. J ' liichardsoii v. I)u Bois, L. K. 5 Q. B. Jennerx. Morris 3D F & j'51 • -in 51; 39 L. J. Q. B. 69; &ze post, L. J. C. 362. ' ' • "' ' '^" MARRIED WOMEN. 495 necessity (c). The creditor is considered as standing in the Ch. iii. wife's place as regards the claim against the husband {d). A '■ '- woman who cohabits with a man as his reputed wife, though she may have the presumptive authority of a wife during cohabitation, acquires no authority like that of a wife by desertion or separation, there being no legal duty in the man to provide her maintenance {e). Where the husband had become lunatic, and was confined in an asylum, the wife was held to have acquired of necessity authority to pledge his credit for her maintenance (/). — Where the husband by mis- Expulsion conduct compels the wife to leave his house, it is equivalent to a refusal to maintain her there, and unless she is sufficiently provided, entitles her to pledge his credit for her maintenance elsewhere ; as where the husband threatens her with personal violence ; or where he lives in the house in adultery with another woman {g) ; nor in such cases is she bound to return merely at his request upon removal of the cause of leaving {h) . A threat to provide for her in an asylum under medical advice, presumptively according to law, was held not sufiicient to compel her to leave him (*'). But so long as the husband is willing himself to maintain Voluntary . . • • liviuff the wife, there is no necessity for her to seek maintenance apart, elsewhere, and no authority to pledge his credit to obtain it {U). A wife voluntarily living apart from her husband, though with his consent, has no inherent authority to charge him with her maintenance ; she can only charge him upon an authority given or inferred in, fact ; but where the husband consents to his wife living apart, without any provision or agreement for her maintenance, it may generally be presumed Ic) Abbott, C. J., Mainwaring v. Bichardsonr. Dti JBois,'L.'R. 5 Q. B. Leslie, M. & M. 18 ; 2 C. & P. 507 ; 52 ; 39 L. J. Q. B. 69. Edwards v. Towels, 5 M. & G. 624 ; (g) HouUston v. Smyth, 3 Bing. Johnson t. Sumner, 3 H. & N. 261 ; 127 ; Sunt v. Be Blaquiere, 5 Bing. 27 L. J. Ex. 341. 550. {d) Mansfield, C. J., Ozard v. Barn- {h) Eme-ry v. Emery, 1 T. & J. ford, 1 Selw. N. P. 331, 12tli ed. 501 ; Thomas v. Alsop, L. E. 5 Q. B. {e) Ellenborough, C. J., Munro v. 161 ; 39 L. J. M. 43. Be Chemant, 4 Camp. 216 ; see Syan (i) Biffin v. Bignell, 7 H. & N". V. Sams, 12 Q. B. 460 ; ante, p. 493. 877 ; 31 L. J. Ex. 189. (/) Read v. Legard, 6 Ex. 636 ; 20 {k) Hmdley v. Westmeath, 6 B. & L. J. Ex. 309 ; Davidson v. Wood, 1 C. 200. D. J. & S. 465 ; 32 L. J. C. 400 ; sea 496 CAPACITY OF PARTIES. "Wife sup- plied with funds. Past ii. as a fact that the husband intended that she should pledge his credit (/) . If he consents to her living apart only upon the condition of not charging him, he could not be made "liable (m). And whilst they are living apart by agreement there can be no desertion by the husband to entitle the wife to obtain an order upon him to pay for her maintenance («). If the wife living apart incurs debts for necessaries for which the husband is not liable, she is presumptively taken to charge them upon her separate estate (o). — The wife is under no necessity, and consequently has no authority to pledge her husband's credit, if she is in fact provided by him with funds sufficient for her maintenance {p) ; and the cre- ditor cannot charge the husband, although at the time of dealing with the wife he had no notice of such funds [q). If the funds allowed are insufficient, the husband may be charged for the deficiency (-s) ; but an agreement made be- tween the husband and wife, upon a separation by mutual consent, as to the amount of her allowance is conclusive of its sufficiency (t) ; and a decree of the Court for the payment of a sum to the wife for alimony is evidence that the sum is sufficient {u). But if the alimony under the decree, or the allowance under the agreement, is not duly paid, the wife may be under necessity to pledge her husband's credit, and acquire authority to do so {x). A wife is not bound to charge her separate property in relief of the liability of her husband to maintain her (.r.r) . Adultery Adultery of the wife puts an end to all authority to charge (?) Per cur. Johnson v. Sumner, 3 H. & N. 261 ; 27 L. J. Ex. 344. (m) Biffen v. Bignell, 7 H. & N. 877; 31 L. J. Ex. 189. (n) See 49 & 50 Vict. c. 52 ; The Queen v. Leresche, (1891) 2 Q. B. D. 418; 60 L. J. M. 153. (o) Hodgson v. JFiUiamson, L. R. 15 C. D. 87. (p) Kodgkinson v. Fletcher, 4 Camp. 70 ; Holt V. Brien, 4 B. & Aid. 252 ; Johnson v. Sumner, 3 H. & N. 261 ; 27 L. J. Ex. 341 ; aule. p. 494. {q) Mi:cn v. Pick, 3 M. & W. 481. (a) Baker t. Sampson, 14 C. B. N. S. 383. (t) Eastland v. Burchell, L. R. 3 Q. B. D. 432; 47 L. J. Q. B. 500 ; Johnson v. Sumner, 3 H. & N. 261 ; 27 L. J. Ex. 341 ; Biffen v. Bignell, 7 H. & N. 877 ; 31 L. J. E.'c. 189. («) JTilson V. Smiith, 1 B. & Ad 801. (x) Xurse v. Craig, 2 B. & P. N". R. 148 ; Hunt v. De Blaquiere, 5 Bing. 550 ; and see ICeegan v. Smith, 5 B. & C. 375 ; Barrett v. Booty, 8 Taunt' 343; 20 & 21 Vict. o. 25. (.cj) Sacidsoii v. Wood, 1 D. J. & S 46o; 32 L. J. 0. 400. MABEIED WOMEN. 497 the husband which is incident to the conjugal relation {y) ; Cs. III. and without giving the wife the legal capacity of contract- ing personally as a single woman (z). She cannot obtain an order upon her husband for maintenance (a). And having lost her legal right to maintenance from her hus- band, she cannot recover compensation for his death by the negligence of a third party {b). It is immaterial to the liability of the husband that the creditor had no notice of the adultery at the time he supplied her with necessaries (c) ; or that the husband first compelled her to leave him by adul- tery on his part {d) ; or that he has committed adultery after her leaving him (e) . But if he connived at or condoned the adultery, the position of wife, with the authority incident thereto, remains as before (/). If the husband, knowing of the adultery of his wife, leaves her in charge of his house and family, she retains the presumptive authority incident to that position ; and he is liable for necessaries supplied to her by a person who had no notice of the adultery {g) . But he is not liable for goods supplied to the wife after adultery committed of which he was ignorant ; though the person supplying the goods was also ignorant of it {h). The necessaries for which the husband is chargeable include Neces- all reasonable expenses for the wife of a person of his estate ^^^^^" and condition (i) . A house and furniture may be necessary for a wife in a station of life requiring her to have a house of her own; also household servants, together with food and liveries for them ; and the services of a waiting-maid {k) . [y) Cockbum, C. J., Atkyns Fearce, 2 C. B. N. S. 766 ; per cur. Cooper r. Lloyd, 6 C. B. N. S. 525. (2) Meyer v. Haworth, 8 A. & £ 467. (a) Culley v. Chapman, Tu. K. 7 Q B. D. 89; 50L. J. M. 111. (i) Stimpson t. Wood, 57 L. J. Q. B, 484. (c) Morris v. Martin, Str. 647 Mainwaring v. Sands, ih. 706 ; see (A) Atkyns v. 'Pearce, supi-a. Atkyns v. Pearce, supra. ner, L. R. 1 C. P. 583 ; 35 L. J. C. P. 313. («) The King t. Flintan, 1 B. & Ad. 227. (/) Wilson V. Glossop, L. R. 20 Q. B. D. 354 ; 57 L. J. Q. B. 161 ; see Harris v. Morris, 4 Esp. 41 ; Keats v. Keats, 1 Sw. & T. 334 : 28 L. J. P. &M. 57. (g) Norton Y. Fazan, 1 B. & P. 226. (i) Per cur. Bazeley v. Forder, L. R. GonerM. Hancock, 6 T. R. 603 ; 3 Q. B. 562; 37 L. J. Q. B. 237; see Hope v. Hope, 1 Sw. & T. 94 ; 27 see ante, p. 472. Ii. J. P. & M. 43 ; Needham t. Brem- {k) Stmt t. Be Blaqi/ie,r, 5 Bing 1. K K 498 CAPACITY OF PARTIES. Part II. A wife may be entitled to charge her husband with the maintenance of his children, when properly and legally com- Costsof mitted to her care (l). — It may be necessary for a wife to ceedmgs!' exhibit articles of the peace against her husband, and he would be chargeable with the cost ; but he cannot be charged with the costs of a prosecution for an assault (m) . An. allowance made for separate maintenance cannot be con- sidered as applicable to such costs (w) . The costs of a suit for divorce may be recovered against the husband as necessary, if there were reasonable grounds for the suit ; and the costs of a suit for a judicial separation ; and the costs of a suit for restitution of conjugal rights (o). The costs of legal advice respecting her marriage settlement, and the claims of trades- men for goods supplied, and a distress levied in her husband's house in which she had been left, have been held to be chargeable against him (p). But the costs of a deed of separation cannot be charged against the husband without his Money lent Epecial authority {q). — The husband is not liable at law for money lent to his wife, though borrowed and applied by her for the procuring of necessaries for which she might have pledged his credit; or to the payment of debts previously incurred for such necessaries (r) . But in equity, if a person lends money to a wife to procure necessaries, under circum- stances in which she is entitled to pledge her husband's credit, and she expends it in necessaries ; or if a person pays money in discharge of debts for such necessaries for which the husband is liable, the husband or his estate may be charged with the sums so lent or paid (s). 650; see Sazeley v. Forder, supra; 393; 47 L. J. C. P. 725; Taylor y. White T. Cuyler, 6 T. R. 176. Hailstme, 52 L. J. Q. B. 101. {I) Bazeley v. Forder, supra; see {p) Wihon v. Ford, L. E." 3 Ex Atkyns v. Fearce, 2 C. B. N. S. 763 ; 63 ; 37 L. J. Ex. 60. 26 L. J. C. P. 252. [q) Ladd v. Lynn, 2 M. & W. 265. (m) Shepherd v. Mackoul, 3 Camp. (r) Knox v. Bmhell, 3 C B N S 326 ; Grindell v. Godmond, 5 A. & E. 334. 755. (s) Karris v. Lee, 1 P. Wms. 482 • (n) Turner v.Moolces,lQ A.. k'E.il. Jenner r. Morris, 3D P & J 45 • (o) Brown v. Ackroyd, 5 E. & B. 30 L. J. C. 361 ; Davidson v. TFood' 819 ; 25 L. J. Q. B. 193 ; Fe Hooper, 1 D. J. & S. 465 ; 32 L J C 400 • 2 D. J. & S. 91 ; 33 L. J. C. 305 ; Seare v. Soullen, L. R. 9 Eq 151 ' Otlaway v. FCamilton, L. R. 3 C. P. D. to wife. MARRIED WOMEN. 499 The hustand may give a special authority to the wife, Ch. m. beyond the presumptive authority incident to her position ; as if entrusted or permitted by the husband to carry on a f Jt^ority. trade or business on his behalf, she would have all the autho- rity which is necessary or usual in that business ; such as to receive or pay money or to order goods in the course of the business (t) ; or to draw and indorse bills and notes (m). A husband may also become liable upon contracts made by Eatifica- his wife, in excess of her presumptive authority, if he sub- husband, sequently ratifies them {x). Thus the husband may become liable to pay for articles ordered by his wife, without autho- rity, 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 disapproval {y) . So, where he has control over the goods improperly ordered by his wife, and does not return them(s). And he may ratify the purchase of goods by the wife conditionally so that the condition must be satisfied in order to charge him {a) . The husband may ratify the acceptance or indorsement of a bill by the wife in her own name, so as to become bound by it (h). And he may_ ratify a contract made by the wife for a purchase of land by taking and enjoying the possession {c). Credit may be given to the wife exclusively of the husband. Credit to who cannot then be charged ; as where a tradesman supplying ^ ^' goods to the wife takes her promissory note in payment {d). The fact of making out the account of goods sold to the wife alone in her married name, which is a usual practice, is not sufficient to show that the credit is given to her exclusively (e) . (t) Clifford V. Burton, 1 Bing. 199 ; («) Salt y. Brien, 4 B. & Aid. 252. Meredith y. Footner, 11 M. & W. 202. (A) Prestwiek v. Marshall, 7 Bing. (u) Prestwiek v. Marshall, 7 Bing. 563 ; Prince v. Brunatte, 1 Bing. N. 565 ; Lord t. Sail, 8 C. B. 627 ; see C. 435 ; Lindus v. Bradwell, 5 C. B. _ v. Clai/, 2 M. & G. 172. 583. [x) See ante, p. 390. (c) Millard v. ILarvey, 34 Beav. (?/) Montague v. Benedict, 3 B. & 237. C. 631; Seaton v. Benedict, 5 Bing. (d) Metcalfe v. Shaw, 3 Camp. 22; 28; 2 Smith, L. C. 9th ed. 512. Bentleij v. Griffin, 5 Taunt. 356. (z) Waithman v. Wakefield, 1 Camp. (e) Jewshury v. Newlold, 26 L. J, 120. Ex. 247. K k2 500 CAPACITY OF PARTIES. Pakt II. Where a married woman has authority to bind her hushand, she is presumed to intend to do so, and not to contract on her own account, in respect of her separate estate (/). And the hushand may he chargeable, though the creditor took a covenant of the wife and the security of a third party {g). But advances made to a married woman, living apart from her husband by consent, presumptively charge her separate estate (A). (/) Davidson v. Wood, 1 D. J. & S. [g) White v. Cuyler, 6 T. E. 176. 465 ; 32 L. J. 0. 400. (h) Hodgson v. Williamson, L. K. 15 C. D. 87. 501 Sect, rv.— incapacity FROM INSANITY AND INTOXICATION. PAQE Contract with person in state of insanity — insanity not known to the other party — notice of insanity 501 Insanity supervening after contract — contracts of marriage 502 Necessaries supplied during insanity 503 Effect of insanity in equity 504 Contract with person in state of intoxication 505 Every person is presumed to be of sound mind and Contract capable, in that respect, of making an agreement, until the ^nufetate contrary appear. But a person may be afflicted with mental of iiisanity- insanity to such a degree as to be incapable of understanding an agreement, and consequently incapable of binding himself by contract; and if a person enters into an agreement, knowing at the time that the other party is incapable of understanding it, there is no valid contract ; for " unsound- ness of mind would be a good defence to an action upon a contract, if it could be shown that the defendant was not of capacity to contract, and the plaintiff knew it " (a). Where a person contracts with another, without notice of Contracts any such insanity as affects his capacity to contract, the notice of ordinary presumption of sanity prevails, and the contract is "^^'^'y- valid. Thus where a person of unsound mind and incapable of managing his own affairs bought life anniiities from an insiirance company in the ordinary way of their business, without notice to the company of the insanity ; it was held that, after his death and consequent termination of the annuities, his representatives could not claim to set aside the contract upon the ground of the insanity and to recover back the amount of the purchase money (b). And where a person («) Ter cur. Molton v. Camroux, 2 623. Ex. 501 ; citing Browne v. Joddrell, 3 (i) Molton v. Camroux, 2 Ex. 487 ; C. & P. 30; Bane v. Kirkwall, 8 C. & 4 ib. 17. P. 679 ; Qore v. Gihsm, 13 M. & W. 502 CAPACITY OF PASTIES. Notice of insanity. Paet II. who was in fact insane contracted to purchase an estate, and paid a deposit, it was held that he could not recover back the money from the vendor, who had no knowledge of his incapacity, and who was willing to complete the sale (c). The presumption is in favour of sanity, and the burden of proof lies upon the party disputing it (i^). A knowledge of the insanity of a person may be imputed from the insanity being of a noticeable kind ; and acts and conduct occurring before or after the contract may show it to be of that kind(e). A commission of lunacy finding a person to be insane from a certain date is prima facie evidence of the insanity as against a person charging a contract made during the period covered by the finding ; but, being res inter alius acta as regards that party, it is not conclusive (/). — A contract may be valid, notwithstanding notice of general insanity, if made during a lucid interval. " A will executed during a lucid iaterval has been held valid and effectual to all intents and purposes for the conveyance of real and personal estate ; it must be the same as to contract or any disposition of property " (f?) . In the case of insane delusions the question is one of fact and degree, as to the effect in induciag the contract (Ji) . Lucid interval. Insanity Contracts are not in general invalidated by the subsequent subsequent ... c ^ • \ ^ to contract, insanity of one of the parties («j ; but there may be an im- plied exception of performance under such circumstances Qi). The insanity of a master does not in itself operate as a dis- missal of his servants {I). The insanity of a principal revokes the continued authority of an agent to contract on his behalf ; but a contract made with an apparently con- tinuing agent by a party having no notice of the insanity of (c) Beman v. M'Sonnell, 9 Ex. 309; 23 L. J. Ex. 94 ; see Frost v. Beavan, 17 Jur. 369 ; 22 L. J. C. 638. {d) Jacobs V. Michards, 18 Beav. 300; 23 L. J. C. 557. (e) Beavan v. M'Sonnell, 10 Ex. 184; 23 L. J. Ex. 326. (/) Faulder v. Silk, 3 Camp. 126 ; Mell V. Iforley, 9 Ves. 478 ; Grant, M. E,., Hall V. JFarreii, 9 Ves. 609; Jacobs V. Michards, supra; Snook v. TTatts, 11 Beav. 105; EUiott v. Ince, 7 D. M. & G. 475 : 26 L. J. C. 820. (17) Grant, M. K., Sallv. Warreit, 9 Ves. 610. (A) Jenkins v. Morris, L. R. 14 C. D. 674. (i) See Se Pagani, (1892) 1 Oh. 2oo. (^) ^QQpost, p. 606. [l) Sartlei/s Trusts, 47 L. J. C. 610. INCAPACITY FROM INSANITY. 503 the principal is valid (A). Judgment may be recovered Ch. iiL against a lunatic for debts incurred before the lunacy, and a '■ — - charging order obtained upon such judgment, which will charge the estate of lunatic after his death in priority to the claim of the representatives (^). — A contract to marry, as it Contracta results in imposing a status upon the parties which they riage. cannot enter into unless sufficiently sane to understand the import of their acts, becomes void by the insanity of one of the parties, because it is then impossible of performance; and it is immaterial whether the insanity existed at the time of contracting, and whether it was known or not to the other party (w). A marriage duly solemnized between com- petent parties is not affected by the subsequent insanity of one of them; but proceedings for dissolution of marriage upon sufHcient grounds may be brought and prosecuted against a party who has become insane since the marriage, though before the proceedings commenced (m). A lunatic or his estate may be charged for necessaries sup- Neees- plied to him suitable to his estate and condition, notwith- supplied standing notice of his incapacity (o) ; and the maintenance of ^J^§y. his wife is a necessary for which he may be charged {p). The costs of a commission of lunacy were held to constitute a vahd debt as having been expended for the necessary protec- tion of his person and property (q) ; including the costs of a medical witness called to prove his sanity (r) . Such commis- sion may be necessary and the costs charged against him, although he is found by the inquisition to be of sound mind(s). — A claim for necessaries supplied to a lunatic is (/c) Sreto V. Minn, L. R. 4 Q. B. D. (o) Saxter v. Fortsniouth, 5 B. & C, 661 ; 48 L. J. Q. B. 591 ; see ante, 170 ; Se Gibson, L. R. 7 Ch. 52 ; Be p. 494. Modes, L. R. 44 0. D. 94; 59 L. J {I) Re Leamsley, (1891) 2 Ch. 1 ; 0. 298. 60 L. J. C. 385; bw ante, p. 136. (p) Read v. Zeganl, 6 Ex. 636 (m) Durham v. Durham; Hunter v. ante, p. 495. JUdney ; Cannon v. Smalley, L. R. 10 {q) Williams y. Wentworth, 5 Beav, P. & M. 80. 325 ; Se Meares, L. R. 10 C. D. 552 in) Mordaunt v. Moncrieffe, L. R. 48 L. J. C. 190. 2 P. & M. 374 ; 43 L. J. P. & M. [r) Brochwell v. Bulloch, L. R. 22 49 ; Baker v. Baker, L. R. 5 P. & M. Q. B. D. 567 ; 58 L. J. Q. B. 289. 142 ; 49 L. J. P. & M. 49 ; Yarrow (s) Nelson v. Dunoombe, 9 Beav. V. Yarrow, (1892) P. b2. 211 ; Ze Cathcart, (1891) W. N. 206. 604 CAPACITY OF PARTIES. Part II. allowed by the Court as a debt chargeable against his estate Necessaries during his life ; and as a debt payable in due course of against administration after his death (t) ; but subject to the limita- estate. ^^^^ ^^ having accrued due within six years, in analogy with a legal debt (ii) . The expenses of necessaries supphed gra- tuitously and without intention of claiming repayment are not recoverable (») . The Court in managing the estate of a lunatic allows debts for past maintenance of the lunatic, his wife and children to be paid in full in priority to other creditors (y) . Effect of insanity in equity. The principles of equity as to the validity of contracts vd.th a person in a state of mental insanity are, in general, the same as at law (s) ; and the mere fact of one of the parties to the contract being insane is no ground in equity for setting aside the contract or for refusing the ordinary equitable remedies, the other party having had no notice of the insanity and deriving no inequitable advantage from it («). A sale or mortgage of land completed by a conveyance may be unimpeachable, though the vendor or mortgagor was in fact a lunatic at the time of executing it ; and the mortgagee would be entitled to foreclose the mortgage against the lunatic or his representative (b) . — So the insanity of a con- tracting party is no ground of objection to a decree for specific performance against him, provided the contract be othervdse valid and capable of specific performance (c) ; and by order of the Court the committee of a lunatic may give a discharge for the purchase-money and execute a conveyance in perform- (t) He Marman' s Trust, L. E. 8 C. D. 256 ; see Re Barlow's Will, L. E. 36 C. D. 287 ; 56 L. J. C. 881 ; Be Silva's Trusts, 57 L. J. C. 281. (m) Re Weaver, L. JR. 21 C. D. 615; Re Harris, 49 L. J. C. 327 ; see Re Gibson, L. E. 7 0. D. 62 ; Newbiggin's Estate, L. E. 36 C. D. 477 ; 56 L. J. C. 907. {x) Re Rhodes, L. E. 44 C. D. 94 ; 59 L. J. C. 298 ; see Re Weaver, supra. (y) Re Pink, L. E. 23 C. D. 577 ; 52 L. J. C. 674. (s) Per cur. Osmond v. Fitzroy, 3 P, Wms. 130. [a) Niell v. Morley, 9 Ves. 478 : Hall V. Warren, 9 Ves. 605 ; Seliy t. Jackson, 6 Beav. 192; Campbell v Sooper, 3 Sm. & Gif . 153 ; 24 L. J. C, 644 ; Crauworth, L. C, Elliott v Inee, 7 D. M. & G. 488 ; 26 L. J. C 825. [b) Price v. Berrington, 3 Mac. & G. 486 ; Campbell v. JSooper, supra. [c) Owen v. Bavies, 1 Ves. sen. 82 ; Sail T. Warren, 9 Ves. 605 ; see Frost T. Beavan, 17 Jvir. 369 • 22 L. J. C. 638. INCAPACITY FKOM INTOXICATION. 505 anee of a contract by the lunatic for the sale or disposal of Ch. hi. . Seot. IV. land {d). In some cases the Court carries out the intended '- — '- .gifts of a person who has been prevented by supervening lunacy, as in the case of a gift made by a person and secured by a voluntary promissory note, v?ho afterwards became lujiatio, and the Court ordered payment of note out of his estate {e). So the Court may continue his subscriptions to charitable institutions (/). A person who has deprived himself of reason by intoxica- Conti-act tion is in a condition, as regards the capacity of contracting, ^n in Sate analogous to that of mental insanity, and the same rules may "fjio^ ^" in general be applied ; he is " non compos mentis by his own act " {g). If a person enters into an agreement with another, knowing him to be then so far intoxicated as to be incapable of understanding the matter of the agreement, the contract is voidable by the party so iacapacitated (h) . But a person cannot avoid his own agreement merely upon the ground of the intoxication of the other party with whom he has con- tracted ; and if the latter after becoming sober ratifies the agreement, it becomes binding on both sides {i). A Court of Equity will not set aside a contract at the instance of a party merely upon the ground that he was intoxicated when he made it, where it does not appear that the other party in- duced the intoxication, or took advantage of it to obtain the agreement {I). Nor under such circumstances can a party in general resist specific performance (w). — A person in a state Necessaries of intoxication may render himself liable by an implied con- tract to pay for necessaries supplied, or necessary services ren- dered to him, whilst in that state (»). id) 16 & 17 Vict. 0. 70 (the Lunacy 137 ; see Pitt t. Smith, 3 Camp. 33 ; Regulation Act, 1853), s. 122; and Fmton v. SoUoway, 1 Stark. 126; see the Trustee Act, 1850, 13 & 14 Hamilton v. Grainger, 5 H. & N. 40. Vict. c. 60, s. 3 ; see Cowper v. (i) Matthews v. Baxter, L. R. 8 Sarmer, 57 L. J. 0. 460. Ex. 132 ; 42 L. J. Ex. 73. («) Re WTiitaker, L. K. 42 0. D. [1) Cooke y. Clai/worth, IS Yes. 12; 119 ; 58 L. J. C. 487. Say v. Barwick, 1 Ves. & B. 195. (/) Cotton, L. J., Me WTiitaker, {m) Lightfoot t. Beron, 3 Y. & C. supra. Ex. 586 ; Shaw v. Thackray, 1 Sm. & ijg) 4 Co. 124 b; Beverley'' s case; G. 637 ; see Langdale, M. B., ifafi«s per cur. Molton v. Camroux, 4 Ex. 19. v. Freeman, 2 Keen, 34. (A) Gore v. Gibson, 13 M. & W. (ra) Per cur. Gore v. Gibson, 13 M 623 ; Butler v. Mulvihill, 1 Bligh, & W. 625, 627. 506 CAPACITY OF PARTIES. Sect. V. -CORPORATIONS AND COMPANIES. PAGE Corporations — capacity of contracting 506 Contracts ultra OTres^engaging in other business — railway- companies — borrowing powers — debentures — bills of ex- change 507 General rule requiring common seal — exceptions to rule . . 511 Claim of corporation upon executed consideration — ^use and occupation of land — liability for executed consideration — effect of part performance in equity 514 Forms of contracting by statute — Companies Acts — Public Health Act 516 Contracts in corporate name — actions in corporate name — actions by members of corporation 517 Agents of corporations — majority of members — directors of company 518 Notice of powers of company — of authority of directors — of proceedings of company 520 Ratification of unauthorised contracts — ^liability of directors for unauthorised contracts , 522 Contracts of promoters of companies — preliminary expenses — contracts of promoters to be specified in prospectus . , 523 Pabt II. A corporation is an artificial person created by law, having Corpora- perpetual succession, a distinctive name, and a common *'™' seal(ffl). The word "person" is construed in law to include Capaoityto ^ Corporation, unless the contrary intention appears (6). — A contract, corporation is constituted for some special purpose for which only it exists; and the capacity of the corporation, if not expressly defined and limited by the terms of its constitution, is impliedly defined and limited by the purpose of its exist- ence, to which its funds are exclusively applicable (c) . Ac- cordingly " if on the true construction of a statute creating a corporation it appears to be the intention of the Legisla- (ffl) 1 Blaokst. Com. 467. Ca. 857 ; Se JeffeocVs Tmsts, 51 L. (jj Conveyancing Act, 1881, s. 2 Interpretation Act, 1889, s. 19 Cairns, L. C, Re Earned' s Bank, L R. 3 Ch. 114 ; see Fharmaeeutical Soo. T. London Stipply Ass., L. R. 5 Ap, J. C. 507. (c) Att.-Gen. v. Xcwcasth, L. R 23 Q. B. D. 492 ; 58 L. J. Q. B. 558 ; per cur. The Queen v. Seed, L R 5 Q. B. D. 488 ; 49 L. J. Q. B. eos'. CORPORATIONS AND COMPANIES. 507 ture, expressed or implied, that the corporation shall not enter Ch. in. into a particular contract, every Court, whether of law or '- — equity, is bound to treat a contract entered into contrary to the enactment as illegal, and therefore void" {d). — In the case Companies, of companies incorporated by registration under the Com- panies Act, 1862, the " memorandum of association," defines and limits the powers conferred and the purposes of incorpo- ration, thereby importing negatively, that nothing shall be done beyond those powers or for any other purpose than those specified (e). It is also beyond the powers of a corpo- ration or company to contract not to use the powers with which they are invested, presumptively for the public good ; as a power for the compulsory purchase of land (/). A contract which is beyond the power and capacity of the Contracts llTt'i'fj, 'O'lTCS corporation, is described as being ultra vires, and is void {g) . And any individual member of a corporate body may appeal to the Court to restrain the application of the corporate funds to any contract or purpose which is ultra vires, though a majority of members are in favour of such application (Ji). A resolution of directors which is ultra vires is simply void, and those directors who act upon it become per- sonally liable for the consequences (i). — A company con- Company » ■nni-i J../ engaging stituted for a speomed business has no power or capacity in other , • J.1 1, ■ 1 j_i • , business. to engage in any other business or employ their property for any other purpose than their own specified business {k) ; (d) Blaokbnm, J., Ashhury My. v. Siehe, L. E. 7 H. L. 672. Car. Co. T. Eiche, L. E. 9 Ex. 262 ; (A) Kernagan v. Williams, L. E. 6 L. E. 7 H. L. 673 ; 44 L. J. Ex. 185 ; Eq. 228 ; Fickering v. Stephenson, L. and see Wenlock \. River Dee Co., Ij. E. 14 Eq. 322; 41 L. J. C. 493; E. 10 Ap. Ca. 354 ; Att.-Om. v. Holmes v. Newcastle Abattoir Co., L. Great Eastern Ey., L. E. 5 Ap. Oa. E. 1 C. D. 682 ; 45 L. J. C. 383. 473. («) Cullerne v. London and Suburban [e) Cairns, L. C, Ashbury Ey. Car. Bg. Soe., L. E. 25 Q. B. D. 485. Co. V. Biche, L. E. 7 H. L. 670 ; see [k) Featherstonkaugh v. Lee Moor Wenloek v. Eiver Dee Co., L. E. 10 Co., L. E. 1 Eq. 318 ; 35 L. J. 0. 84 ; Ap. Ca. 354. see Simpson v. Westminster Sotel Co., (/) Ayr Sarbour v. Oswald, L. E. 8 H. L. C. 712 ; 29 L. J. C. 561 ; 8 Ap. Ca. 623. Bath's case, L. E. 8 C. D. 334 ; 47 (g) Cranworth, L. C, Shrewsbury L. J. C. 601 ; London Financial Ass. <£■ B. Ey. T. London # N. W. Ey., 26 v. Xelk, L. E. 26 C. D. 107 ; 53 L. L. J. C. 493; 6 H. L. C. 113. J. C. 1025. Cairns, L. C, Ashbury Ey. Car. Co. 508 CAPACITY OF PARTIES. PaetII. and if a company abandons their legitimate business to carry on a business which is ultra vires, a shareholder may claim to have the company wound up {I). A company incor- porated for the purpose of mining and selling copper ore were held incapable of dealing in iron ; and a contract for the manufacture and delivery of iron rails was held void, because not within the scope of their business (m) . A company con- stituted for the purpose of carrying on the business of " mechanical engineers and general contractors," was held to be restricted to business and contracts of a mechanical kind, and therefore incapable of contracting for the purchase of a concession and for providing funds for a foreign railway (w). So generally it is ultra vires for a company to contract for the purchase of the busiuess and goodwill of another com- pany (o) ; or to buy shares and become a shareholder in another company, unless expressly authorised to do so by its constitution (/>) . And a power of " investing in securities" does not authorise taking shares for the purpose of engaging in another business {q) ; but a company in fact registered as shareholder would become liable as a contributory in liquida- tion (r) . EaUway Upon the same principle it is ultra vires for an ordinary railway company, having no special powers for the purpose, to trade in coals is) ; or to work coal mines (t) ; or to trade with steamships to a foreign port (u) ; or to take a lease of tl) Be Crown Bank, L. R. 44 C. D. v. Turner, L. R. 8 C. D. 149 ; 42 L. 634 ; 59 L. J. C. 739. J. C. 83. (m) Copper Miners' Co. Y. Fox, \& Q,. [q) Joint Stock Discount Co. t. E. 229. Brown, L. R. 8 Eq. 381. in) Ashbunj Carriage Co. v. Siche, (»•) Me Asiatic Bank. Co., L. R. 4 L. R. 7 H. L. 653 ; 44 L. J. Ex. 185. Ch. 252 ; see Re European Soc, supra. See London Financial Ass. v. Kelk, (s) Att.-Gen. v. ff. N. Sy , 1 Dr. L. R. 26 C. D. 107 ; 53 L. J. C. & Sm. 154 ; 29 L. J. C. 794 ; see 1025. London # N. W. Sy. v. Price, L. R. (o) Clinch v. Financial Corp., Jj.'R. II Q. B. D. 485; 52 L. J. Q. B. 4 Ch. 117; 38 L. J. C. 1 ; Stace's 754. case, L. R. 4 Ch. 682 ; see Ernest v. (<) Eccles. Commiss. r. iV. i Ey , NichoUs, 6 H. L. C. 401 ; but see L. R. 4 C. D. 845. Companies Act, 1862, s. 161. (w) Colman y. Eastern Co. Sy., 10 (p) Se Barned's Bank. Co., L. R. Beav. 1 ; see South Wales Sy. v. Sed- 3 Ch. 105 ; 37 L. J. C. 81 ; Se mond, 10 C. B. N. S. 675 ; LooUm v. European Soc. Acts,'L.'R.SC.I>. 679; Midland Sy., L. R. 2 Ap. Ca. 792. 48L.J. C.I18; eee Great Eastern Sy. company. CORPORATIONS AND COMPANIES. 509 another line («) ; or to pay the costs of obtaining an Act Ch. in. for another line {y). So it is ultra vires for a railway com- '- pany having compulsory powers of taking land to take land for any other purposes than the making and carrying on the railway, as for the purpose of selling again (s) ; or having taken land, to use it for any other purposes (a) . A corporation has no power of borrowing money, unless Borrowing expressly or impliedly given in its constitution ; thus a school board, having power to raise money by rates, has no power of borrowing {b). And a benefit building society has no power of borrowing unless given by a special rule of the society (o). A company constituted for commercial or trading purposes, involving the use of money and credit, is impliedly invested with power to borrow money for the reasonable requirements of the business (c?). But an express power given of borrowing to a limited amount excludes the im- plication of any greater power (e) . A loan made to a cor- poration or company having no borrowing power, or in excess of their borrowing power is void ; and the lender is in general bound to inquire into the extent of the borrowing powers (/). And a security given for such loan under the seal of the corporation is also void [g). But where a loan made to a corporation or company having no borrowing power or in [x) East Anglian By. v. Eastern Blackburn B. S., L. R. 9 Ap. Ca. Co. My., 11 C. B. 775 ; 21 L. J. C. P. 857 ; 54 L. J. C. 376 ; Be National 23 ; and see South Yorkshire Ry. v. B. S., L. E. 5 Ch. 309 ; Se Mutual e. N. Ey., 9 Ex. 55; 22 L. J. Ex. AidB. S., L. E. 30 C. D. 434 ; 55 305; Midland Ey. v. G. W. By., L. J. C. Ill; see Be Guardian B. S., L. E. 8 Ch. 841 ; 42 L. J. C. 438 ; L. E. 23 C. D. 440. Att.-Gen. v. G. E. By., L. E. 5 Ap. (d) General Auction Co. v. Smith, Ca. 473 ; 49 L. J. C. 545. (1891) 3 Ch. 432 ; 60 L. J. C. 723. (y) Macgregow. DealBy., \&Q,.'&. («) Chapleo t. Brunswick B. S., 618 ; 22 L. J. Q. B. 69. su-pra ; Wenlock v. River Dee Co., (z) Caringtomr. Wycombe, L. E. 3 L. E. 10 Ap. Ca. 354; 57 L. J. C. Ch. 377 ; 37 L. J. C. 213 ; Bee Sobbs 946 ; see S. C, L. E. 38 C. B. 634 ; V. Midland By., L. E. 20 C. D. 418 ; 67 L. J. C. 946. 61 L. J. C. 320. (/) Chapleo v. Brunswick B. S., (a) Norton t. Z. # N. W. By., L. L. E. 6 Q. B. D. 696 ; 50 L. J. Q. B. E. 9 C. D. 623 ; 47 L. J. C. 859 ; see 372 ; see Yorkshire Wagon Co. v. Bostock Y. 2f. Staffordshire By., 4 E. Maclure, L. E. 21 C. D. 309 ; 51 & B. 798 ; 24 L. J. Q. B. 225. L. J. C. 857 ; English Channel Co. v. (i) The Queen v. Reed, L. E. 6 Q. Rolt, L. E. 17 C. D. 715. B. D. 483 ; 49 L. J. Q. B. 600. {g) Ex p. Watson-, L. E. 21 Q. B. {c) Murray t. Scott, L. E. 9 Ap. D. 301 ; 67 L. J. Q. B. 609. Ca. 519 ; 63 L. J. C. 745 ; Brooks t. 510 CAPACITV OF PARTIES. Paet II. Exercise of borrow- ing power. Deben- tures. excess of the borrowing power has been in fact expended in discharging debts and legal liabilities, the lender is entitled in equity to be subrogated to the claims of the creditors who have been paid with his money, and to charge the corporation in their place; he may charge the amount of the debts so paid as money paid for the corporation at their request {h) ; and he is also entitled to the securities which the paid ofE creditors held («'). — A corporation or company having borrow- ing power may exercise it by mortgage of their property and rights (/«) ; or by deposit of title deeds {I) ; or by giving a bill of sale (m) ; or by overdrawing their banking account, which is as much an exercise of borrowing power as any other kind of raising money (n) ; or by mortgaging their uncalled capital, under a power to that effect (o). — A corporation or company may also exercise borrowing power by issuing debentures or mortgages operating as a charge upon the undertaking and all its current property, in priority over general creditors {p) ; but subject to the power of the com- pany to dispose of the property, or to give specific charges upon it, in the ordinary course of carrying on the busi- ness (q) . A company with borrowing power may issue debentures at a discount (r) ; and may issue debentures or give mortgages as security for a past debt (s) . A company may thus pay contractors and other creditors for works done and services rendered in the execution of their undertaking by giving bonds or debentures in acknowledgment of the (A) Wenlock T. River Bee Co., L. R. 19 Q. B. D. 155 ; 56 L. J. Q. B. 589 ; Brooks V. Blaclciurn B. 8., supra; see ante, p. 57. (i) Neath B. S. v. luce, L. E. 43 C. D. 158 ; 49 L. J. C. 3. (k) Australian Clipper Co. v. Maun- sey, 4 K. & J. 733 ; 27 L. J. C. 729 ; see Howard v. Fatent Ivory Co., L. E. 38 C. D. 156 ; 67 L. J. C. 878. (Fj Re Patent File Co., L. K. 6 Ch. 83 ; 40 L. J. C. 190. (;«) Shears v. Jacoi, L. R. 1 C. P. 613; 35 L. J. C. P. 241. (n) Brooks v. Blackhtirn B. S., L. E. 9 Ap. Ca. 857 ; 54 L. J. C. 376. (o) Re ByU Works, (1891) 1 Cli. 173; 60 L. J. C. 114. (jo) Re General South Ainei-ican Co., L. R. 2 C. D. 337. Seepost, p. 1034. (y) Re Florence land Co., L. R. 10 C. D. 630 ; 48 L. J. C. 137 ; Re Hamilton's Ironicorks, L. R. 12 C. D. 707 ; see the Mortgage Debenture Act, 1865, 28 & 29 Vict. c. 78 ; 33 & 34 Vict. 0. 20 ; post, p. 1034. (f) Re Anglo-Bnniibiaii Xar. Co., L. R. 20 Eq. 339 ; 44 L. J. C. 502 ; see CampbiWs case, L. R. 4 C D. 47. (s) Re Inns of Court Hotel, L. R. 6 Eq. 82 ; 37 L. J. C. 692 ; Re latent File Co., supra. CORPORA'llONS AND COMPANIES. 511 amount of their debts, upon which the creditors may raise Ch. hi. money in payment ; and the assignees of such bonds will '. — - stand in place of the creditors in respect of the amount of debt discharged (t). But so far as such bonds or debentures or any other seciirities of a like kind are not supported by bond fide debts legitimately incurred, they are not valid in law or equity unless issued in exercise of legal borrowing power [u). A corporation or company constituted for commercial or Bills of trading purposes may have, as a necessary incident of such purposes, the implied power of drawing and accepting bills of exchange and promissory notes in the ordinary form ; as the Bank of England and the East India Company [x). But no such power is incident to an ordinary railway com- pany (y) ; or to a waterworks company (z) ; or to a cemetery company (a). By a general rule of common law a corporation can bind General itseli to a contract only by a deed or writing under the quiring the common seal (6). The affixing of the maX prima facie imports ^e^"'' the formal act of delivery which is required in the execution of a deed by a natural person ; but the seal may be affixed conditionally in a manner analogous to the delivery of a deed as an escrow (c). — The Companies Seals Act, 1864, s. 1, enables any company under the Companies Act, 1862, trans- acting business abroad, to have an official seal for use in any it) Se Cork ^ Toughal Ry., L. R. and see 7 & 8 Viot. o. 19. 4 Ch. 748 ; 39 L. J. C. 277 ; seeBlack- iz) Broughton v. Manchester Water- more T. Tates, L. R. 2 Ex. 225 ; 36 works, 3 B. & Aid. 1. L. J. Ex. 121 ; Rashdall v. Ford, {a) Steele v. Sarmer, 14 M. & "W. li. K. 2 Eq. 750 ; 35 L. J. C. 769 ; 831 ; and see Re Worcester Corn Exch. and see ante, p. 58. Co., 3 D. M. & G. 180 ; 22 L. J. C. (m) Chambers v. Manchester # Mil- 693 ; Atkins v. Wardle, 68 Xi. J. Q. B. ford Ry., 5 B. & S. 688 ; 33 L. J. 379. Q. B. 268 ; see Foimtaine v. Carmar- (}) 1 Blackst. Com. 475. then Ry., L. K. 5 Eq. 316 ; 37 L. J. [c) WiUs, J., Stapk of England v. C. 429. Rank of England, L. B. 21 Q. B. D. (x) Fer cur. East London Waterworks 165 ; 57 L. J. Q. B. 418 ; Eerby Canal T. Bailey, 4 Bing. 288. Co. v. Wilmot, 9 East, 360 ; Xenos (y) Bateman v. Mid-Wales Ry., L. v. Wickham, L. E. 2 H. L. 296 ; 36 E. 1 C. P. 499 ; 35 L. J. C. 205 ; see L. J. C. P. 313 ; Gartside v. Silkatone Feruvian Ry. Co. v. Thames Ins. Co., Co., 21 C. D. 768 ; 61 L. J, 0. 828 : L. E. 2 Ch. 617 ; 36 L. J. C. 864 ; see ante, p. 115. 512 CAPACITY OF PARTIES. Pakt II. place out of the United Kingdom ; and s. 3, to appoint an agent under the common seal to affix such official seal to any deed, contract, or instrument. Exceptions Exceptions occur to the above general rule, by reason of the particular purpose and constitution of the corporation, or Contracts upon the general ground of convenience and necessity. — A corpora- Corporation or company constituted for the purpose of carry- °"^' ing on a trade or business may make the contracts required in the course of business in the usual form of such contracts, without the corporate seal : as a contract of a colliery com- pany for the erection of pumping machinery («?) ; a contract ■with a gas company for the supply of gas meters (e), or to supply gas to customers (/) ; a contract of a telegraph com- pany with an agent for sending messages upon commis- sion {g) ; a contract by a navigation company for the supply of provisions for ships {h), or for bringing home an unsea- worthy ship [i) ; a contract of a railway company for the supply of iron rails {k) ; but a contract for making material alterations on their line in order to adapt it to a different system of locomotion was held to require the seal of the company (^). And a contract with the London Dock Com- pany for cleansing their docks was held to be a contract not within the ordinary scope of their business and therefore to require a seal {m) . Exceptions Exceptions are also made where it becomes practically sity. " necessary to dispense with the common seal ; by reason of the slight importance or frequent recurrence or immediate urgency of the occasion, not admitting of such formality («). The (d) South of Ireland Colliery v. (i) Henderson v. Australian Mail Waddle, L. B. i C. P. 617 ; 38 L. J. Co., 5 E. & B. 409 ; 24 L. J. Q. B. C. P. 338 ; overruling East London 322. Waterworks v. Bailey, 4 Bing. 283. Uc) Re Contract Corporation, L. E. {e) Beverley v. Lincoln Gas Co., 6 8 Eq. 14. A. & E. 829. {I) Siygle v. Blac/cwall Railway, 5 (/) Church V. Imperial 6 as Co., 6 Ex. 442. A. & E. 846. (m) London Doch Co. t. Sinnot, 8 (^) Reuter t. Electric Tel. Co., 6 E. E. & B. 347 ; 27 L J Q B 129 & B. 341 ; 26 L. J. Q. B. 46. (n) ler cur. Ludlow v. Charlton, 6 (A) Australian Mail Co. v. Marzetti, M. & W. 822 • Austin v Bethnal 11 Ex. 228 ; 24 L. J. Ex. 273. Green, L. R. 9 C. P. 94 • 43 L J C P. 100. ' ■ ■ ■ COIIPORATIONS AND COMPANIES. 513 guardians of a poor law union may contract by parol for the Ch. hi. ordinary provisions and necessaries for the workhouse, and '■ — - for the ordinary work and materials required ahout the building (o) ; also for the services of an accountant to audit the accounts of the union (p). But it was held that the guardians were not liable except under seal for extra work under a contract to build the workhouse, though the work was ordered by the architect and accepted by the guardians {q) ; nor for the costs of a survey and map of a parish made by their order (r). A municipal corporation, possessed of a dock for the use of the public to repair ships were held to be capable of letting the use of the dock according to the regu- lations without the corporate seal (s) . But a municipal cor- poration cannot contract without seal to let the tolls of a market (t) ; or for the erection of building improvements ia the borough (t«). — A corporation may engage a servant for Engage- common services, as a cook, or a butler, in the usual manner servants, without seal ; and may appoint a bailiff to distrain without agents.'^'' seal (a;). So railway companies are empowered to employ managers, clerks, workmen, and servants, for their ordinary business without contracting under seal(y). The appoint- ment of the clerk to a board of guardians (s), of the town clerk of a borough (a) , of a coal meter in a borough with the right to take fees for his own profit, requires the corporate seal ; because such persons are in the position of public officers and not servants of the corporation (b). The appointment of an architect by a school board was held sufficient without seal, («) Sandars v. St. Neots Union, 8 (*) Kidderminster v. Hardwiclc, L. Q. B. 810 ; Clarke v. Guckfleld, 21 L. E. 9 Ex. 13 ; 43 L. J. Ex. 9. J. Q. B. 349 ; Niehohon t. Bradjield, («) Ludlow v. Charlton, 6 M. & W. L. E. 1 Q. B. 620 ; 35 L. J. Q. B. 815. 176. {x) Smith v. Birmingham Gas Co., (p) Baigh v. North Brierley, E. B. 1 A. & E. 526 ; Tindal, C. J., Arnold & E. 873 ; 28 L. J. Q. B. 62. v. Poole, 4 M. & G. 877. ( j) lamprell v. Billericay, 3 Ex. (y) See Cope v. Thames Baven Ry. , 283 ; see Somersham v. Wolverhamp- 3 Ex. 841. ton Waterworks, 6 Ex. 137. (z) Austin v. Bethnal Green, L. R. (r) Faine t. Strand, 8 Q. B. 326. 9 C. P. 91 ; 43 L. J. C. P. 100. (s) Wells T. Eingston-upon-Sull, (a) The Queen v. Mayor of Stam- L. E. 10 C. P. 402 ; 44 L. J. C. P. ford, 6 Q. B. 433. 257. (*) Smith v. Cartwright, 6 Ex. 927 ; 20 L. J. Ex. 401. L. L L 514 CAPACITY OF PARTIES. Paet II. under the power to appoint officers provided by the Eduoa- Attorney. tion Act, 1870 {d). — A corporation cannot in general appoint an attorney without the common seal ; and an attorney who has conducted suits upon a retainer not under seal cannot recover his costs (e). But the City of London by custom appoints an attorney annually in open Court by a warrant recorded without seal (/). Companies incorporated by statute for trading purposes, as railway companies, generally have power given to retain solicitors and other like officers without a retainer under seal {g) . A corporation may validly com- promise an action without the corporate seal (A) . Claim for executed considera- tion. Use and occupation oi: land. A corporation cannot sue upon a contract not under seal, which requires a seal, whilst the consideration is executory ; but after the consideration has been executed for the benefit of the other contracting party, the corporation may charge the latter upon the implied contract arising from the executed consideration («'). — Thus a corporation, though not capable of making a demise of land without the corporate seal, may charge the occupier upon an implied promise to pay for the use and occupation of the land (/c) . And a tenancy from year to year may be created by occupation and payment of rent under a lease which is void for want of the corporate seal ; and under such tenancy the corporation may sue or distrain for the rent reserved (/). Such tenancy is held to include all such terms of the lease as are applicable to a yearly tenancy, as an agreement to keep the premises in repair (w) . On the other hand, acceptance of the rent by the corporation renders the tenancy binding against the corporation in the same manner as against other persons {n). A corporation id) Scott V. Clifton School Bd., L. E. 14 Q. B. D. 600. (e) Arnold v. Poole, 4 M. & Gr. 860. (/) Per cur. ib. 882. [ff) The Queen v. Cttmbcrland, 5 D. & L. 43; 17 L. J. Q. B. 102. (h) SeeAtt.-Gen. v. Gaskill, L. R. 22 C. D. 537; 52 L. J. C. 163. (i) See ante, p. 36 ; Pishnionijers' Co. V. Eobertson, 5 M. & Q. 131 ; Copper Miners' Co. v. Fox, 16 Q. B. 237 ; Kidderminster v. Sardwick, L. R. 9 Ex. 21 : 43 L. J. Ex. 9. (k) Dean of Socliester v. Pierce, I Camp. 466 ; Stafford t. Till, 4 Bing. 76. > o (/) irood v. Tate, 2 B. & P. N. R. 247. (m) Eccles. Commiss. v. Merral, L. R. 4 Ex. 162 ; 38 L. J. Ex. 93. («) Hoc V. laniere, 12 Q. B. 998. CORPORATIONS AND COMPANIES. 515 may also he charged for the actual use and occupation of Ch. hi. land (o) ; but not for a constructive occupation Tinder an '■ — - implied tenancy from year to year founded on the payment of rent (^). A corporation cannot be charged at law upon a contract Liability not under seal, for which a seal is necessary, though the con- cuted con- sideration has been executed for the benefit of the corpora- ^' ^^^ ^°^' tion (q). But the corporation may pay for the consideration executed under such contract ; and the objection cannot be raised by a third party who becomes rateable to the corpora- tion for the money so paid (r). The contract may be ratified after part execution of the contract, by aflSxing the seal with the consent of the other party ; because he might refuse to complete unless the seal were affixed (s) . But the- seal cannot be affixed to validate the contract after a breach by the other party, or after he has repudiated the contract {t). — A corpora- Contracts tion may be charged with a contract implied in law ; as in law. an action for money received to recover the fees of an office wrongfully taken by the corporation (u) ; or in an action to recover money paid for the use of the corporation (a-). The general rule requiring the common seal applies in equity as well as at law, and subject to the like exceptions (//). No equity arises from the mere want of a seal, without other ground for relief (s) . But the equity arising from part per- Effect of formance operates against a corporation in the same manner fomance as against an individual (a) ; and where the possession of land ™ equity, has been given and used by a party under an agreement with (o) Fer cur. Beverley v. Lincoln Gas (<) Kidderminster v. SardwicJc, L. Co., 6 A. & E. 841 ; Zowe v. L. ^ K. 9 Ex. 21 ; 43 L. J. Ex. 9. N. W. Ey., 18 Q. B. 632 ; 21 L. J. {u) Sail v. Swansea, 5 Q. B. 526 ; Q. B. 361. Bee ante, p. 73. {p) Finlay v. Bristol and Mxeter {x) Jefferys v. Ourr, 2 B. & Ad. Ry., 7 Ex. 409; 21 L. J. Ex. 117. 833. ((?) Lnmprell v. JSillericay Union, 3 (y) Taylor v. JJiilwich Hospital, 1 Ex. 283; Himt v. WimbUdon, L. E. P. Wms. 655 ; Carters. Dean of Ely, 4 C. P. D. 48 ; 48 L. J. C. P. 207 ; 7 Sim. 211 ; Gooday v. Colchester, 17 Young Y. Leamington, L. E. 8 Ap. Ca. Beav. 132. 519 ; 52 L. J. Q. B. 713. (z) Crampton v. Varna My., L. R. \r) Bournemouth Commiss. v. Watts, 7 Ch. 562 ; 41 L. J. C. 817. L. R. 14 Q. B. D. 87; 54 L. J. Q. B. [a) La'mly. Birkenhead By., Johns. 93. 500; 29 L. J. C. 218; Wilson v. (s) Mdliss T. Shirley L. B., L. R. West Hartlepool By., 2 D. J. & S. 14 Q. B. D. 911 ; 54 L. J. Q. B. 408. 475 ; 34 L. J. C. 241. L 1. 2 516 CAPACITY OF PARTIES. P-^^^ll- a corporation wMoh is not under seal, the Court will inquire into the terms of the possession and give effect to them by enforcing specific performance of the agreement (b). Where a lessee under a corporation lease without seal entered and huilt upon the demised premises with the acquiescence of the corporation, they were compelled to execute a valid lease (c). The equity arising from part performance avails equally in favour of a corporation ; and where a railway company had contracted without seal for the purchase of land, and had entered and constructed their railway upon it, it was held that they were entitled to specific performance against the vendor (d) . Forms of Special forms of contracting are prescribed or allowed by contract by , , , „ . , , , , i t -.^ statute. statute for companies and some other corporate bodies : — By The Com- The Companies Act, 1867 (construed as one with the prin- 1867. ' cipal Companies Act, 1862), s. 37, " Contracts on behalf of any company under the principal Act may be made as follows : (that is to say), 1. Any contract which if made between private persons would be by law required to be ia writing, and if made according to English law to be under seal, may be made on behalf of the company in writing under the common seal of the company ; and such contract may be in the same manner varied or discharged : — 2. 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 therewith, may be made on behalf of the company in writiag signed by any person acting under the express or implied authority of the company ; and such contract may in the same manner be varied or discharged : — 3. Any contract which if made between private persons would by law be valid although made by parol only, and not reduced into writing, may be made by parol on behalf of the company by any person acting under the express or implied authority of the company ; and such contract may in the same way be varied (J) See ante, p. 267. {d) London & B. Sy. v. Winter, Or. (c) Crook V. Seaford, L. R. 6 Ch. & Ph. 57. 551. CORPORATIONS AND COMPANIES. 517 or disoliarged" (e). — The Oompanies Clauses Consolidation Ch. in. Act, 1845, which is applied to oompanies constituted for making railways and for other public undertakings, contains panii^"™' a section to the same effect, and in nearly the same words as Clauses that above cited (/). By the Companies Act, 1862, s. 47, " a promissory note or Bflis of bill of exchange shall be deemed to have been made, accepted, and pro- or indorsed on behalf of any company under this Act, if ^otlT/ 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." This section does not give power to draw bills to companies which do not otherwise possess the power (g). By the Public Health Act, 1875, s. 173, "Any local authority Public may enter into any contracts necessary for carrying this Act Act. into execution." And by s. 174 (1), "Every contract made by an urban authority whereof the value or amount exceeds fifty pounds shall be in writing and sealed with the common seal of such authority." This enactment is imperative, and the authority cannot be charged with such contracts not sealed, though the consideration has been executed {h) . The contract must be ascertained to exceed fifty pounds in value at the time of making in order to require the seal («) ; but the seal may be afiixed afterwards when the value is ascertained (k) . The section applies only to contracts necessary for carrying the Act into execution {I). The contract of a corporation must be made in the proper Contractu] corporate name (m). A contract purporting to be made by nam™*^*^ (e) 30 & 31 Vict. c. 131, s. 37. (i) Eatony. Baslcer, L. E. 7 Q. B. (/) 8 Vict. c. 16, s. 97. D. 539 ; 50 L. J. Q. B. 444. (g) Peruvian Ey. Co. v. Thames {J;) Melliss y. Shirley Z. B.,Xi. R. Ins., L. B. 2 Ch. 617 ; 37 L. J. C. 14 Q. B. D. 911 ; 64 L. J. Q. B. 408. 864. See sects. 41, 42; Atkins v. (I) Att.-Gen. v. Gaskill, L. R. 22 Wardle, 53 L. J. C. 377 ; and see C. D. 537 ; 52 L. J. C. 163. ante, p. 423. {m) See Mayor of Zynne's case, 10 Co. (h) Huntv. Wimbledon L. .B., L. K. 122 b ; Croydon Sospital v. Farlei/, 4 C. P. D. 48 ; 48 L. J. C. P. 207 ; Taunt. 467 ; Syde v. Bank of Eng- ^ Y. Leamington, L. E. 8 Ap. land, L. R. 21 CD. 176 ; 51 L.J. 0, Oa. 517; 52 1;. J. Q. B. 713. 747. 518 CAPACITY OF PARTIES. Pabt II. officers or members of a corporation, though sealed with the corporate seal, does not bind the corporation {k). On the other hand, a contract by parties named, but expressly restricting their liability to an alleged corporate capacity, there being in fact no such capacity, was held to bind them personally, the proviso restricting their liability being rejected as re- pugnant {I). A corporation must sue and be sued in the corporate name ; and individual members or officers can in general neither sue nor be sued in their own names upon contracts made with Actions by the corporation or in respect of corporate property {in). — But individual members may sue the corporate body in respect of their own share or interest ; and may sue on behalf of all persons having the same interest (?«) ; as in an action to restrain a company from acting ultra vires (o) ; or to restrain improper or fraudulent conduct on the part of the company or of the directors or agents {p) ; or to compel the company to exercise its rights in its own name {q). A minority of members cannot use the corporate name against the wish of the majority ; but they may sue in their own names and make the corporation defendant (r). Actions in corporate name. members. Agents of corpora- tion. A corporation can contract, whether with or without seal, only through some agency ; and if the seal be affixed or a contract made in the name of the corporation without proper authority the corporation is not bound (s) . An instrument produced bearing the seal of a corporation is ^r/^wd /r/f/f taken (Ic) The King v. B'aughley, 4 B. & Ad. 650. [I) Furnivall v. Goomies, 5 M. & Gr. 736. (m) Coochv. Goodman, 2 Q. B. 580 ; Jtussellw. Wakefield JFaUrworks, L. R. 20 Eq. 474 ; 44 L. J. C. 496 ; see Duelcett y. Gover, L. E. 6 C. D. 82 ; 46 L. J". C. 407 ; Mason v. Harris, L. E. U C. D. 97 ; 48 L. J. C. 589. («) See Order XVI. r. 9 ; Fraserv. Cooper, L. E. 21 0. D. 718 ; 52 L. J. C. 684. (o) See ante, p. 507. (p) Menier v. Hooper's Tel. Co., L. E. 9 Oh. 350 ; Macdougall v. Gar- diner, L. E. 20 Eq. 383 ; L. R. 1 C. D. 18 ; Fender v. Lushington, L. E. 6 C. D. 70; 46 L. J. C. 317; Fulhrooh v. Sichmond Co., L. E. 9 C. D. 610; 48 L. J. C. 65. () Smith v. Sull Glass Co., 11 13 Q. B. D. 103 ; 53 L. J. Q. B. C. B. 897 ; 21 L. J. C. P. 106 ; Re 369. Barned's Banking Co., L. E. 3 Ch. [x) Per cur. Staple of England v. 105 ; 37 L. J. C. 81. Bank of England, supra. {c) Ld. Wenaleydale, Ernest v. (y) Att.-Gen. v. Davy, 2 Atk. 212 ; NichoUs, 6 H. L. 0. 419 ; Riehe v. Carter v. Dean of Ely, 7 Sim. 211 ; Ashbury Carriage Co., L. K. 7 H. L. Wills, J., Staple of England v. Bank 653 ; 44 L. J. Ex. 185. of England, supra. 520 CAPACITY OF PARTIES. Notice of powers of company. Past II. are bound to refund any additional proEts {d) ; and if they apply property of the company to purposes extra vires, they are responsible as for a breach of trust (e). A person contracting with a corporation or company con- stituted by a public statute is taken to have notice of their powers and capacity, and cannot charge them with contracts which are ultra vires, though sealed with the corporate seal (/). A person contracting with a registered company is taken to have notice of the memorandum and articles of association, in which the powers of the company are defined and limited {g). And a person deahng with a society constituted by rules made under statutory authority is bound to inquire into the rules and is taken to have notice of the powers given by them ; as in the case of a building society {h). — Persons contracting with directors of a company are affected with notice of their authority as limited in the articles of association, and cannot charge the company with any contract made by the directors in excess of their authority {i). Thus where the articles of association provide that business shall not be commenced untU a certain amount of shares has been subscribed, the company cannot be charged with a contract made by the directors before satisfaction of that condition {k). — But persons deahng with directors are not affected with notice of the proceedings of the company ; they are entitled to assume as against the company that all meetings have been held, and resolutions passed, and acts done necessary to appoint and qualify the directors, and to invest them with the authority which they are in fact allowed to exercise (^). Where directors are Notice of authority of direc- tors. Notice of proceed- ings of company. [d) See ante, p. 411. (e) Flitcroffs case, L. E. 21 C. D. 519 ; 52 L. J. C. 217 ; Re Oxford Building S., L. E. 35 C. D. 502 ; £e Faure Electric Co., L.E. 40 C. D. 141 ; 58 L. J. C. 48 ; see TTihon v. Sury, L.R.5Q.B.D.618; 50L. J. Q.B.90. (/) Fairtille t. Gilbert, 2 T. R. 169 ; Mast Anglian My. v. Eastern Co. Ey., U C. B. 775; 21 L. J. C. P. 23 ; Macgregor t. Deal My., 18 Q. B. 618; 22 L. J. Q. B. 69. (g) Balfour v. Ernest, 5 C. B. N. S. 601; 28 L. J. C. P. 170; S. C, 6 H. L. C. 401 ; Fierce v. Jeraeii Water- works, L. E. 5 Ex. 209 ; 39 L. J. Ex. 156. (A) Chapleo v. Brunswick B. S., L. E. 6 Q. B. D. 696; 50 L. J. Q. B. 372. (() Midley v. Plymouth Grinding Co., 2 Ex. 711 ; Wood, V.-C, Fountaine V. Carmarthen My., L. E. 5 Eq. 321 ; 37 L.J. C. 431. (k) Fierce v. Jersey Wateruorks Co., supra. {I) Moyal British Bank Y. Turquand, 6 E. & B. 327 ; 25 L. J. Q. B. 317 ; CORPOKATIONS AND COMPANIES. 521 empowered to borrow such sums as should from time to time Ch. hi. he authorised by a resolution of a general meeting, the company are bound by bonds issued by the directors in due form, although no suiBcient resolution has in fact been passed (m) ; but where the borrowing power of directors was expressly limited to a fixed amount which might be extended by a vote of shareholders at a general meeting, it was held that the company could not be bound by the directors beyond the fixed amount, without proof by the lender that an extension had been duly voted (n). Upon the same principle where the deed of an insurance office 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," a policy issued from the ofiice in the ordinary course of busLaess with the seal of the company was held valid, though there had been no such order to affix the seal (o) . So bankers of a company are justified in paying cheques presented in regular form and signed by the de facto directors of the company without inquiring into the validity of their appointment (p). And if directors are authorised to accept bills upon taking sufficient security, and bills are accepted, the holders of such bnis are not bound to inquire whether sufficient security or any security has been taken (q). — Upon a like principle, Bye-laws where the directors of a company have power from time to pany. time to make bye-laws for the regulation of the business, a person dealing with the directors is not affected by a bye-law unless it is proved that he knew of it (r). But directors taking debentures of their own company are taken to have Totterdell v. Fareham Brick Co., L. R. P. C. 86. 1 C. P. 674 ; 35 L. J. 0. P. 278 ; Se (o) Prince of Wales Ass. v. Harding, Bonelli's TeUgraph Co., L. E. 12 Eq. E. B. & E. 183 ; 27 L. J. Q. B. 297; 246 ; 40 L. J. C. 567. see Re County Life Ass., L. E. 5 Ch. (m) Eoyal British Bank v. Tur- 288; 39 L. J. 0.471. quand, supra; Agar y. Athenceum Life (p) MahonyY. East Solyford Mining Ass. Co., 3 0. B. N. S. 725; 27 L. J. Co., L. E. 7 H. L. 869. C P 95 ; see Landowners' Co. v. (q) Be Land Credit Co., Ij.'R. iCSh. Ashford, L. E. 16 C. D. 411; 50 460; 49 L. J. C. 27. L. J. C. 276. (r) Be Asiatic Banking Corp., L. R. in) Irvine v. Vnion Bank of Aus- 4 Ch. 252. tralia, L. E. 2 Ap. Ca. 366; 46 L. J. 522 CAPACITY OF PARTIES. P^^*^ 11- notice of all irregularities and defects in the issuing of them (s). Eatiflca- A contract made by directors or agents on behalf of a authorised Company without authority, or without the formalities neces- contract. ^^^^ ^^ l^j^^^j ^.j^g company, may be afterwards ratified by the company, or by directors or agents duly authorised in that respect ; provided the contract is within the power of the company to make {t). — Where goods are ordered by an un- authorised agent, and delivered and invoiced to the company and used by the directors in the business, the directors may be taken to have ratified the order and to bind the company (ti). Where a company having a general borrowing power invests the directors with a limited power only, which they exceed, the unauthorised excess of loan may be ratified by the share- holders confirming the accounts presented at a meeting of the company held after due notice (x). And ratification may be inferred generally from acquiescence of all the shareholders in the transaction after full knowledge of it and vsdth the in- tention of adopting it (y) . But a contract which is tdira rires of the company cannot be ratified even by the unanimous assent of the whole body of shareholders (z) ; as in the case of a loan beyond their borrowing powers (a) . Liability of The directors and agents who contract on behalf of a com- for uu- pany may be personally liable upon an implied warranty that contracts, they have the authority which they assume to exercise ; as where they profess to borrow money, on behalf of the eom- («) Howard v. Fatent Ivory Co., 3 H. L. 171, 249, 263 ; 37 L. J. C. L. E. 38 C. D. 170 ; 57 L. J. C. 878. 752, 793, 800 ; Phosphate of Lime Co. (t) Renter v. Electric Telegraph Co., v. Green, L. R. 7 C. P. 43 ; Grant r. 6 E. & B. 341 ; 26 L. J. Q. B. 46 ; Switchbac-lc My. Co., L. JR. 40 C. D. He British Provident Life Ins., 1 D. 135; 58 L. J. C. 211. J. & S. 604 ; 33 L. J. 0. 84. (z) Riehe v. Ashbury Carriage Co., (u) Smith V. Sull Glass Co., 11 C. L. R. 7 H. L. 653 ; 44 L. J. Ex. 185 ; B. 897 ; 21 L. J. 0. P. 106. see Ashbury v. IT'atson, L. R. 30 CD. (x) Irvine v. Union Banh of Aus- 376 ; 54 L. J. C. 985 ; Blackburn B. tralia, L. E. 2 Ap. Ca. 366. S. v. CiinUffe, L. R. 29 C. D. 910 ; (w) "Westbury, L. C, Grady's case, 54 L. J. C. 1091. 1 D. J. & S. 488 ; 32 L. J. C. 326 ; (a) IFeiilock v. Sim- Bee Co., L. E. Spademan v. Evans ; Erana v. Small- 38 0. D. 534 ; 57 L. J. C. 946. combe ; Houldsworth v. Eeans, L. E. CORPORATIONS ANII COMPANIES. 523 pany without having any borrowing power, or after the Ch. hi. borrowing powers of the company have been in fact ex- ^ — '- hausted {b) . The directors of a company, which was in- corporated under a private Act without power of accepting bills, having accepted a bill drawn on the company by their engineer for his services, were held liable to an indorsee of the bill, upon their implied representation that they were authorised to accept it for the company (c) . Upon the same principle directors by instructing the company's banker to honour the cheques of the manager or other officers of the company are taken impliedly to warrant to the banker that they have power to authorise such cheques {d). But directors, having authority to give such instructions, do not thereby impliedly guarantee the account at the bank, and the cheques drawn are cashed upon the credit of the company only (e). A. company cannot be charged with the contracts of pro- Contracts motors and others made on behalf of the company before it moters'of was formed; unless they are expressly imposed upon the <=°™P'^°y- company in the Act or constitution of the company (/). Nor can the comjDany when formed be charged upon a mere ratifi- cation of such contracts ; for ratification requires that the contract should have been originally made on behalf of an existing person then capable of contracting (g). But the company when formed may by a new agreement with the parties adopt the contracts of promoters in whole or in part (h) ; so far as they are not uUra vires of the com- pany (e). And the company when formed may become (i) See SKte, p. 431 ; Weeks y. Fro- (/) See ante, p. 366; Shrew&hury pert, L. E,. 8 C. P. 427 ; 42 L. J. C. v. N. Stafford R,j., L. R. 1 Eq. 593 ; P. 129 ; Richardson v. Williamson, 35 L. J. C. 156. L. R. 6 Q. B. 276 ; 40 L. J. Q. B. (g) See ante, p. 392 ; Kelner v. 145. JSaxter, L. R. 2 C. P. 174 ; 36 L. J. . 95; 56 L.J. C. 181. (A) Perkins, ss. 533—537 ; Brent's ease, 2 Leon. 16 ; Barker t. Keate, 1 Mod. 262 ; Fowley v. Walker, 5 T. R. 373. (i) King's Leaseholds, L. R. 16 Eq. 521. (k) Price v. Jenkins, L. R. 5 C. D. 619; 46 L. J. C. 805; see Coles y. Pilkington, L. R. 19 Eq. 174; 44 L. J. C. 381. (I) Price T. Jenkins, supra ; Ee Ziilham, 53 L. J. C. 928. (m) Sarris y. Tuhb, L. R. 42 C D 79 ; 68 L. J. C. 434 ; Re Marsh 'and Granville, L. R. 24 0. D. 11- 53 L. J. C. 84. («) Se Sidler, L. R. 22 C D 74 • 52 L. J. C. 343. THE CONSIDEKATION. 547 One and the same consideration is sufficient to support Chap. i. several distinct promises made in respect of it; and in general Considera- in a written agreement stating a sufficient consideration all voM.^'^ ^ the promises would be construed- as referable to the con- sideration (o). If the consideration expressed is divisible and partly void for uncertainty or any other reason, it may be so far rejected, and the promise supported by so much as is valid and substantial [p). If the promise consists of several matters and is divisible, the consideration may be attributable to part only, leaving the rest unsupported by any consideration. As where a guarantee was given in terms to pay for all the gas to be supplied on certain premises, and also to pay all arrears then due for gas supplied ; the only consideration being the future supply of gas, the promises were construed to be divisible ; the former was held valid in respect of any gas to be supplied under it, and the latter void as given for a past consideration {q) . So a bill of exchange may be given for sums attributable respectively to several considerations, some of which are void or have failed ; as a bill accepted for value as to a certain sum only, and for accommodation as to the residue, which, as between the immediate parties to it, is good only for the former sum('r). — "Where any part of the Considera- consideration is illegal it is not merely void and inoperative, ^°^ '^^^ ' but it generally renders the whole transaction illegal, and the promise induced in any degree by such consideration is wholly void. But if the promise be divisible and apportion- able to the several parts of the consideration, the promise so far as not attributable to the illegal consideration may be valid (s). In contracts with executory considerations, the execution of FaUure of the consideration may form a condition precedent to the liability tion. upon the promise, and the failure of the consideration then dis- (o) Harris v. Venables, L. K. 7 (?) Wood v. Benson, 2 C. & J. 94. Ex. 235 ; 41 L. J. Ex. 180'. (r) Darnell v. Williams, 2 Stark. (p) Guthing v. Lynn, 2 B. & Ad. 166 ; Barber v. Backhouse, Peake, 61 ; 232 ; Jiinff v. Roxirough, 2 C. & J. Clark v. Lazarus, 2 M. cfe Gr. 167. 418 ; King v. Sears, 2 C. M. & R. 48 ; (s) ShackellY. Rosier, 2 Bing-. N. 0. Jones v. Waile, 5 Bing. N. C. 341; 634; ane post, p. 677. Thomas Y. Thomas, 2 Q.B. 851. IN N 2 648 THE MATTER OF CON'IBACTS. Paet III. charges the promise. If the execution of the consideration does not form a condition precedent to the liability upon the pro- mise, failure of execution does not affect the promise, but has the effect only of a breach of contract, giving a claim for damages. The dependence of the promise on the one side upon the execution of the consideration on the other is, for the most part, a question of construction of the terms of the contract, which is treated hereafter in treating of contracts on the side of the promise (t). — Where money has been paid for a con- sideration which entirely fails, the money may in general be recovered back ; and a contract or debt is implied in law to that effect (m) . (t) See post, p. 564. («) See ante, p. 86. 549 Chapter II. THE PEOMISE. PAGE Absolute and conditional promises — conditions precedent and subsequent 550 Debts payable at a future time — debts payable out of special fund 551 Promises conditional upon certain or uncertain events — bills accepted or drawn upon conditions 552 Promises conditional upon will of promiser — promise to leave by will — promise conditional upon approval of the consideration — condition against assigning lease without licence 553 Promises conditional upon will or approval of third party — sale at valuation — sale on approval of title — work pay- able upon certificate — ttansfer of shares subject to approval of directors 656 Promises conditional upon demand — bills and notes 559 Promises conditional upon notice — notice of dishonour of bill — notice under guarantees and indemnities — in- surance 561 Construction of contracts as to conditions — independent, dependent, and concurrent covenants — construction re- sulting from time of performance — from the matter of the contract 56i Conditions in contracts of sale of land — leases — sales of goods — charterparties — apprenticeships , 567 Performance of conditions precedent — part performance — excuses of performance , 577 Conditions subsequent — contracts terminable at will — lease terminable by notice or condition — sale of land with con- dition for rescission — sale of goods with condition of warranty — services terminable by notice 581 Alternative promises — election in promiser — election in promisee — notice of election — election irrevocable — promise to pay money in default of performance 586 The promise in a contract may be made in express terms ; or it may be presumed from the facts and circumstances creating the contract ; or under certain circumstances it may be implied in law : these distinctions refer to the mode of 550 THE MATTER OF CONTRACTS. Pabt III, formation of, the contract and have been already noticed. The promise may be varied according to the specific object or purpose to which the contract is applied ; but it is not within the scope of the present work to treat of the law of contracts in its various specific applications. There are, how- ever, some modifications and distinctions of a general character concerning the matter of the promise which require notice. Absolute and condi- tional promises. Condition precedent. Condition subse- quent. Promises may be absolute or conditional. An absolute promise is due immediately, and independently of any event or contingency ; as a debt due and payable at the present time. Such a debt arises upon a sale of goods for ready money ; or upon a loan of money simply ; or upon a pro- missory note payable on demand, which is held to be a present debt due and payable without demand (a) . — A con- ditional promise is one of which the performance becomes due only after a lapse of time, or upon the happening of some event, certain or uncertain. The lapse of time and the happening of the event are then conditions precedent, in reference to the liability for performance of the promise. — A promise may also be conditional, as being subject to cease or be discharged upon some event or contingency, which is then a condition subsequent : as a bond with condition, which according to the literal construction is an acknowledgment of a debt due to the obligee, conditioned to be void on the performance of some act or the happening of some event. TBut the legal effect of the bond is to secure the performance or the event stipulated for in the condition ; and in substance it constitutes a liability to pay conditional on a breach of the condition ; the amount payable being restricted by law to the damages occasioned by the breach (i). Other instances of conditions subsequent occur in charterparties containing a clause of cesser of liability upon the shipment of the cargo (c) ; and in contracts reserving conditions of forfeiture or of rescission at the option of one or other of the parties (d). («) Norton v. JEllam, 2 M. & W. 461 ; Re G-eorge, L. R. 44 C. D. 627 ; 59 L. J. 0. 709. J) See ante, p. 123. \e) See ante, p. 418. \d) See^osi!, p. 583. THE PROMISE. 551 Contracts may be conditional upon mere lapse of time ; as Chat, ii. a debt payable at a future time, debitum in pnesenti sokendum Detts pay- infuturo, whicb is subject to the condition precedent that the future specified time must elapse before the debt becomes absolutely *'™®" due and payable ; as a debt for goods sold with a fixed period of credit ; a debt upon a bill or note payable at a future date. Where goods are sold upon a contract to pay for them by a bill, and the bill is given, the price cannot be recovered until the period of " the bill has elapsed ; but if the contract is broken by not giving the bill, an action lies at once to recover the present value of the bill(e). So wages may be due, though not payable imtil a future day (/) ; but there is no debt for accruing wages until earned and accrued due (. 526 ; 63 417 ; Dawson v. Wrench, 3 Ex 359 ' L. J. Q. B. 518. (s) BautY.Eirk, 18 L. J. Q B 83 THE PROMISE. 653 pay a sum of money {t). Contracts may be conditional upon Chap. il. the happening of some event or contingency which is alto- gether uncertain ; as contracts of insurance against losses by perils of the sea or by fire ; contracts of guarantee ; the con- tract of a shareholder in a company to pay calls. — A bill of ^'^^^ , , r J c J ^ ^ accepted exchange may be accepted payable upon a condition, if the upon holder will take such an acceptance ; and it is then not absolutely due until the condition is satisfied («f) : as an acceptance payable upon arrival of a cargo (») ; or upon delivery of a bill of lading (y) ; an acceptance " to pay as remitted for" (s), "to pay when goods consigned were sold " (a), " when a navy bill was paid " {b). An acceptance is prima facie general, and a qualified acceptance is construed strictly against the acceptor ; an acceptance " in favour of the drawee only" was held to be a general acceptance (c). — A Bills bill or note may be drawn payable on a future event of upon certain occurrence, so that the money must become payable *^°" °°' at a determinable future time ; but not on an uncertain con- tingency without forfeiting the character of a bill or note (d) . Such an instrument would not be negotiable; nor would it be attended with the presumption of consideration ; and an action could be brought upon it only as an ordinary agree- ment, of which the consideration must be alleged and proved (e). An instrument promising to pay, subject to the contingency of the liability ceasing upon some event, as upon the death of the payee, is a special agreement which cannot be treated as a bill or note (/). A promise cannot be conditional on the mere will of the Pron promiser ; for by promising to do a thing only in case it conditional upon win of TtTO rms fiT* (t) Coope T. Cresswell, L. R. 2 Ch. (c) Decroix v. Meyer, L. R. 25 112 ; 36 L. J. C. 114. Q. B. D. 343 ; (1891) A. C. 520 ; 59 (m) Bills of Exchange Act, 1882, L. J. Q. B. 538. d. 19. (d) Bills of Exchange Act, 1882, (x) Miln Y. Frest, 4 Camp. 393. ss. 3, 11. {y) Smith y. Vertiie, 9 C. B. N. S. [e) Carlos v. Famourt, 5 T. E. 482 • 214 ; 30 L. J. C. P. 56. Sill v. Ealford, 2 B. & P. 413 ; (z) Banbury v. lisset, 2 Str. 1211. Robins v. May, 11 A. & E. 213. (a) Smith Y. Abbott, 2 Str. 1152; (/) Worley v. Harrison, 3 A. & E. Julian Y. Shobrooke, 2 "Wils. 9. 669 ; Richardson y. Martyr, 25 Law {b) Fierson y. Dunlop, Cowp. 671. Times, 64, Q. B. 554 THE MATTER OF CONTRACTS. Pabt III. please himself he is not bound to anything. Agreements for service in -which the remuneration is left to the discretion of the employer create no binding contract (g). A covenant in terms amounting to a promise by a person to pay money to himself was held to be no contract (h). A covenant by a person to buUd such a house as he should think fit is void of effect ; and a grant of land made in consideration of such a covenant was held to be purely voluntary («'). — But a contract may be made terminable at the wiU. of one of the parties, and will be valid until so determined ; and the determination may be entirely arbitrary and without reason assigned {k). Promise j^ promisc may be made, upon a valid consideration, to ty win. make a certain disposition of property by will ; though a will is essentially a voluntary and revocable instrument (I). And though the promiser cannot be compeRed to make a wdl according to his promise ; his estate will be bound by the promise, after his death, either in damages, or specifically (m) . The promise must clearly show an absolute intention to make such a will, and not merely a present revocable testamentary intention («) . And it must be made to the promisee and accepted by him as a binding obligation (o) . A promise to make a certain disposition of land or of any interest ia land by will is within the fourth section of the Statute of Frauds and must be proved in writing (p). Promise A promise to pay for work upon condition of the work conditional i. n i i-i i £ _li '.tt upon ap- being done to the approval of the promiser is vahd ; as a con- the^consi- tract with an architect to prepare plans subject to approval (q) ; deration, or to prepare plans upon the terms of being employed as architect to carry them out if approved (r). In such cases the ((/) See ante, p. 3. L. J. Q. B. 140. (A) Faulkner v. Zowe, 2 Ex. 595. (n) Maunsell v. White, i H. L. C. (i) Sosher y. Williams, L. R. 20 1039 ; see Dashwood v. Jcrmyn, L. K. Eq. 210; 44 L.J. C. 419. 12 C. D. 776. (It) See post, p. 581. (o) Dashwoodv. Jermyn, supra. (l) JSammersley v. Se Biel, 12 01. [p) Alderson v. Maddison ; Siem- &'E.i5; CoverdaleY. Eastwood, 'L.'R. phreys v. Grem, supra: see ante, 15 Eq. 121 ; 42 L. J. 0. 118 ; Alder- p. 212. son V. Maddison, L. R. 5 Ex. D. 301 ; (j) Mofatt v. Bichson, 13 C B 8 Ap. Ca. 467 ; 50 L. J. Q. B. 406. 543 ; 22 L. J. C. P. 265. {in) Hammersley v. Be Biel; Cover- (r) Mofatt v. Laurie, 15 C. B dale V. Eastwood, supra ; Sumphrcys 683 ; 24 L. J. 0. P 66 V. Grem, L. R. 10 Q. B. D. 148 ; 52 THE PROMISE. 555 condition of approval must presumptively be exercised in a Chap, ii, reasonable, and not arbitrary or capricious manner (s). It may be stipulated that the approval shall be quite arbitrary ; and then the only restriction is that it must be exercised in good faith, however unreasonably, and not merely for the pur- pose of defeating the contract (i) . Upon the same principle policies of insurance containing the condition that the insured shall fui-nish to the insurers such evidence or information as they may think necessary to establish the claim are construed to mean such evidence only as the insurers may reasonably, and not unreasonably and capriciously require (u) . So with deeds of assignment for the benefit of creditors, requiring the creditors to verify their debts by such evidence as the trustee shall think fit («). An agreement to take a lease " provided the terms of the draft lease are reasonable in our estimation " was held to leave the terms open to further negotiation or to an absolute refusal («/). — Where goods are delivered "on approval," or " for sale or return " or on like terms, there is a^ sale conditional upon the approval of the buyer ; which is concluded by not returning the goods within the time appoiated ; or if no certain time is appointed, within a time reasonably sufficient for approval (z). And if the goods perish before approval there is no sale, and the loss falls upon the seller («). A covenant or condition in a lease that the lessee shall not Condition assign without the consent of the lessor, " such consent not being arbitrarily withheld," does not import any covenant by the lessor not to withhold his consent arbitrarily ; but if he does so, the lessee may assign without it (b). It is not a (s) Ballman v. King, i Bing. N. 0. () Smith V. Peters, L. E. 20 Eq. Eadie v. Addison, 52 L. J. C. 80. 511 ; 44 L. J. 0. 613. (?) Morgan v. Birnie, 9 Bing. 672 ; (n) Thurnell t. Balbirnie, 2 M. & Milner v. Field, 5 Ex. 829 ; Grafton W. 786 ; Clarkex. Westrope, 18 C. B. \. Eastern Co. My., 8 Ex. 699. 765; 25 L. J. C. P. 287; see ante, (»•) Clarke^. Watson, 1%C.'B.'S.S. p. 37 ; post, p. 821, n. {k). 278 ; 24 L. J. C. P. 148. N. d (o) Brogden v. Marriott, 2 Bing. (s) Stevenson v. Watson, L. B. 4 473. C. P. D. 148; 48L. J. C. P. 318. 558 THE MATl'EK OF CONTRACTS. Part III. the work, as being a shareholder in the works of a company {t). But if the architect refuses to certify in collusion with and by the procurement of the employer, an action will lie against both the employer and the architect for the fraudulent collu- sion {u). There is no claim in equity for work done upon the mere ground of refusal of the certificate, unless there is fraud or misconduct or collusion on the part of the architect in refusing it {x). Where the architect was under an agreement to the employer that the works should not exceed a certain sum, which was concealed from the builder, it was held to be so far a fraud upon the latter, as to discharge the condition and to entitle him to recover for the work done notwithstanding the refusal of a certificate [y). — Upon the same principle where a buUding contract is made determinable upon default in the builder, to be decided upon by the architect, his certificate is conclusive (s) ; and so where it is agreed that extras shall be chargeable only upon written orders of the architect {a). And where a builder imdertakes to complete works according to the order of an architect within a given time, the order is conclusive as to the possibility of completing them, and he is liable for delay (6). — A certificate of an architect does not necessarily import a certificate in writing ; a verbal certificate will satisfy the condition between the parties, unless they have expressly stipulated for a written certificate (c) ; nor will the mere want of writing give ground for relief in Certificate in "Writing. U) Sanger v. Great Western Ry., 5 H. L. C. 72. [u] Satterhury v. Vyse, 2 H. & C. 42 ; 32 L. J. Ex. 177 ; Ludbrook v. Barrett, 46 L. J. 0. P. 798 ; see Se Holt, 58 L. J. Q. B. 5. [x) M'Intosh V. Oreat Western My., 2 Mac. & G-. 74 ; Waring v. Manchester Ry., 7 Hare, 482 ; Scott v. Liverpool, 3 D. & J. 334; 28 L. J. C. 230; De Worms v. Mellier, L. K. 16 Eq. 654. (y) Kemp v. Rose, 1 Gife. 258 ; Kimberley v. Biclc, L. E. 13 Eq. 1 ; 41 L. J. C. 38. [z) Roberts y.Bii-ry Commiss., L. !R. 5 C. P. 310; 39 L. J. C. P. 129; Wadsii'orth v. Smith, L. R. 6 Q. B. 332 ; 40 L. J. Q. B. 118 ; see Stad- hard T. Ice, 3 B. & S. 364 ; 32 L. J. Q,. B. 75 ; Walker v. London # JST. W. Ry., L. R. 1 C. P. D. 518; London Tramways Co. v. Bailey, L. R. 3 Q. B. D. 217; 47 L. J. M. 3. (a) Lamprell v. Billerieay, 3 Ex. 283 ; Russell v. Bandiera, 13 C. B. N. S. 149 ; 32 L. J. C. P. 68 ; Good- year V. Weymouth, 35 L. 3. C. P. 12 ; Tharsis Sulphur Co. Y. McElroy, L. R. 3 Ap. Ca. 1040. (4) Jones v. St. John's Coll., L. R. 6 Q. B. 115; 40 L. J. Q. B. 80. (c) Roberts v. Watkins, 14 C. B. N. S. 592 ; 32 L. J. C. P. 291 ; see Re Moodi/ ^ Yates, L. R. 30 C. D. 344 ; 64 L. J. 0. 886. THE PROMISE. 559 equity (d). — The submission of work and payment under a Chap, il. contract to the certificate of a third party is not an arbitra- tion ; it cannot be revoked ; nor can it be made a rule of Court ; nor is the certificate an award, or liable to be examined as 8uch(e). A contract for the transfer of shares in a company may Transfer be conditional upon the approval of the transferee by the subject to directors, if they have a discretionary power given them by ^PrMtors."* the constitution of the company ; but in the absence of an express power to that effect they cannot refuse a bond fide transfer in the exercise of their ordinary powers (/) . According to the rules of the Stock Exchange it is presumptively the duty of the transferee to procure his registration as share- holder ; and there is no undertaking by the seller that the company shall accept the transferee [g] . If the buyer fails to obtain registration, the seller remains liable to the company ; but the buyer may expressly guarantee registration and become liable to indemnify the seller (h). A promise may be conditional upon a request or demand Promise of performance; which must then be alleged and proved in upon '"""' an action for a breach (i). A present debt of a certain demand, amount, as for money lent, or for goods sold and delivered, deMs.'' or upon a contract implied in law, is payable without de- mand ; " a request for the payment of a debt is quite imma- terial, unless the parties to the contract have stipulated that it shall be made ; if they have not, the law requires no notice or request ; but the debtor is bound to find out the creditor and pay him the debt when due" (A). So it is the duty of {d) Kirk v. Bromley Union, 2 PHU. v. Lhyd, 7 Q. B. 27 ; London Founders^ 640. Ass. V. Clarke, L. E. 20 Q. B. D. 676 ; [e) Mills Y. Bailey, 2 H. & C. 36 ; 57 L. J. Q. B. 291 ; see Skinner v. 32 L. J. Ex. 179; Wadsworth v. Zon&K 7ms., L. E. 14 Q. B. D. 882 ; Smith, L. E. 6 Q. B. 332 ; 40 L. J. 54 L. J. Q. B. 437. Q. B. 118; see Sharpey. San Paulo (A) Cruse v. Faine, L. R. 4 Ch Ey., L. E. 8 Ch. 597. 441 ; 37 L. J. 0. 711. (/) Weston's case, L. E. 4 Ch. 20 ; (i) Birks v. Trippet, 1 "Wms. 38 L. J. C. 49; see Moffatt t. Far- SaTind. 32 1. L. E. 7 C. D. 591 ; 47 L. J. (k) Parke, B., Walton v. Maseall, C. 355. 13 M. AW. 458. See Kington (ff) Biederman v. Stone, L. E. 2 0. P. Eington, 1 1 M. & "W. 235 ; Waters v 504 ; 36 L. 3. C. P. 198 : Wilkinson Thanet, 2 Q. B. 757. 560 THE MATTE It OF CONTKACTS. Paet III. Contracts to account on de- mand. Bills and notes. executors to pay debts of the testator without demand (l) . — A bond conditioned simply for the payment of money requires no demand, and non-payment is a breach of the condition ; but if the condition is for payment on demand, there is no breach until a demand is made (m). If a warrant of attorney be given for payment of money on demand, no proceedings can be taken under it without demand («). In the case of a debt of uncertain amount to be ascertained by reference to matters better known to the creditor than the debtor, a demand of the amount must be made before it can be con- sidered due, because the debtor cannot otherwise know the amount (o). Money payable on demand is not payable at a " stipulated time ;" which is required to satisfy the conditions of a bill of sale {p) . — The contract of a factor or agent, receiving money for his principal, is to account on demand, and a demand is necessary in order to charge him in an action for not accounting {q) . — So upon a bailment of goods for safe custody a demand is necessary to charge the bailee with re- delivery ; though he may be charged with a wrongful con- version of the goods or with the proceeds of a vsrongful conversion immediately and without demand (r). Parties primarily liable on mercantile instruments, as the acceptor of a bill or the maker of a note, are bound to pay the holder when the instrument becomes due, without presentment or demand. " When a party accepts a nego- tiable biU, he binds himself to pay the amount without notice to whomsoever may happen to be the holder, and on the precise day when it becomes due" (s). Notice of indorsement is not necessary (t). But if such instruments are made {I) He Birch, L. R. 27 C. D. 622 ; 6i L. J. C. 119. (m) Carter v. Sing, 3 Camp. 459 ; Gilbs V. Southam, 5 B. & Ad. 911. (m) Nickoll V. Bromley, 2 B. & B. 464 ; Abbot v. Greenwood, 2 Jur. 989; see Capper v. Dando, 2 A. & E. 458. (o) Brown v. G. E. Sy., L. R. 2 Q. B. D. 406 ; 46 L. J. M. C. 231. t p) Ueiherinqion v. Groome, L. R. 13 Q. B. D. 789; 53 L. J. Q. B. 576; Siiley t. Eigqs, L. R. 15 Q. B. D. 619; 54 L.J. Q. B. 625. ((?) Topham v. Braddieh, 1 Taunt. 572 ; Turner v. Burkinshaic, L. R. 2 Ch. 491. (r) Wilkinson v. Verity, L. R. 6 C. P. 206 ; 40 L. J. C. P. 141 : see Miller v. Dell, (1891) 1 Q. B. 468 ; 60 L. J. Q. B. 404 ; post, p. 846. (s) Parke, B., Boole v. Tumbridge, 2 M. & W. 225 ; post, p. 735. (t) Reynolds v. Davies, 1 B. & P. 625 ; Bradbury v. Emans, 5 M. c&; W. 595. THE PROMISE. 561 specially payable at a particular place only, presentment for Chap. ii. payment at that place is necessary (m). A promissory note expressed to be payable on demand is a present debt, payable witbout any demand («). A bill or note payable at a certain time after demand is not due and payable until a demand has been made and the time has elapsed (y). A promise may be conditional upon notice of some event Promise being given to the promisee ; which must be given accord- upon ingly, and must be alleged and proved in an action brought for a breach. A promise conditional upon the happening of some event does not further import the condition of having notice of that event, unless expressly stipulated for ; but in some cases it is necessarily implied from the nature of the transaction that notice should be given. The general rule is stated to be, " 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 where it is an event which lies within the peculiar knowledge of the opposite party, then notice ought to be given him" (s). If the matter does not lie more properly in the knowledge of one of the parties than the other, as where it is some act of a third party, notice is not requisite («) . The like rule applies with an obligation under a statute to be performed for the benefit of another (5). — Where 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 of the price to the buyer before he could charge him with payment (c) . Where a person covenanted not to («) Bffla of Exchange Act, 1882, field, 6 M. & W. 452 ; Makin v. ss. 19, 52 ; see post, p. 735. Watkinson, L. R. 6 Ex. 25 ; 40 L. J. {x) Norton v. EJlam, 2 M. & "W. Ex. 33. 461; MaltbyY. Murrelh, 5 H. & N. (a) 1 Wins. Saund. 117 a, n. (2); 813; 29 L. J. Ex. 377; Re George, 2 ib. 62 a; Parke, B., Dawson v. L. R. 44 C. D. 627; 59 L. J. C. 709; Wrench, 3 Ex. 362. see Chartered Bank of India t. Sick- (i) London ^ S. W. My. v. Fhwer, son, L. R. 3 P. C. 574 ; and see post, L. R. 1 0. P. D. 77 ; 45 L. J. C. P. pp. 742, 843. 54. {i/) Re Rutherford, L. R. 14 C. D. (c) Sennwg''s Case, Cro. Jac. 432, 687 ; 49 L. J. C. 654 ; post, p. 843. cited L. R. 6 Ex. 29, n. (2). (r) Abinger, C. B., Vyse v. Wake- L. O O 562 THE MATTER OF CONTRACTS. Paet III. do anything wherelDy an insurance to be effected on his life should be avoided or prejudiced, it was held that he was not bound by the covenant until he had notice of the policy, the conditions of which he was to observe {d). A vendor of land covenanted to deduce a good title and produce the deeds on a certain day at one of three places mentioned ; he was held bound to give notice of the place to the purchaser, in default of which he was liable for a breach of the covenant (c). A covenant in a lease by the lessor to keep in repair the demised premises is impliedly conditional upon notice of want of repair ; but a covenant by the lessor to put the premises in repair requires no notice (/). Where a debtor promised to pay his debt when he was able, it was held that the liability was complete as soon as he became of ability, without any implied condition to give notice to his creditor {g). Notice of The contract of the drawer or indorser of a bill or note, as disnonour of bills and surety for the acceptor or maker, is by the law merchant subject to the condition of due presentment for payment and due notice of dishonour ; such notice of dishonour to be given within a reasonable time depending upon the circumstances of the case (A) . But if the drawer or iudorser has in fact no remedy over against the acceptor or other party to the bill, the rule is excused ; as in the case of a bill accepted for his accommodation, upon which notwithstanding his apparent position on the bill he is primarily liable and notice of dis- honour is excused (i). And the condition of notice of dis- honour does not apply to the case of a surety who guarantees the due payment of a bill or note without making himself a party to the instrument ; upon such a guarantee he is liable {d) Vyse V. Wakefield, 6 M. & W. 442. (e) Rippinghall v. Lloyd, 5 B. & Ad. 742. (/) Malcin V. Watkinson, supra ; Coward v. Gregm-y^ L. R. 2 C. P. 153 ; 36 L. J. C. P. 1 ; see London % S. W. Ry. V. Flower, supra; Man~ Chester TVarehouse Co. v. Carr, L. R. 6 C. P. D. 507 ; 49 L. 3. C. P. 809. (g) Waters v. Tlianet, 2 Q. B. 757. (A) Bills of Exchange Act, 1882, ss. 45 — 60. See Ex p. Baker, L. E. 4 C. D. 795; 46 L. J. B. 60; Sou- quette v. Overmann, L. E.. 10 Q. B. 542; 44 L. J. Q. B. 221. (t) Bills of Exchange Act, 1882, ss. 28, 50 ; Bickerdike v. BoUman, I T. & 11.405; 2Smith, L. C.,9thed. 56; Turner v. Samson, L. E. 2 Q. B D. 23; 46 L. J. Q. B. 167; Fosters. Parker, L. E. 2 C. P. D. 18 • 46 L. J. C. P. 77 ; Se Boyse, L. E 33 0. D. 612; 50 L. J. C. 135 THE PKOMISE. 563 absolutely upon dishonour of the hill without any notice or Chap. ii. demand, unless he expressly stipulates for it (k). In contracts of guarantee there is no implied condition Guaran- that notice shall he given to the surety of the default of the debtor ; nor that a demand shall be made upon the principal debtor, where such demand is not necessary to charge the debtor himself (/) ; as in the above case of a guarantee of a bill or note (m). But it may be made an express stipulation that the creditor shall demand the debt of the principal, and also give notice of his default, as a condition of charging the surety («) . — In contracts of indemnity no notice of the loss or indem- damage is in general required ; unless it has been expressly so stipulated (o) ; but giving notice of the claim which is the subject of indemnity, by affording to the party indemnifying the opportunity of admittiag or defending it, may have the effect of precluding him from afterwards disputing that it was properly admitted, or properly defended or compromised, and of thereby rendering him chargeable with the costs (p). In policies of marine insurance there is in general no condi- insurance. tion that the insured shall give notice of the loss ; the damage or loss of a ship by perils of the sea being a fact as much within the knowledge of the one party as of the other (j). " However inconvenient it may be to an underwriter not to receive early notice of a loss, the assured is under no obliga- tion to give it. A notice of abandonment must be given within a reasonable time ; but notice of loss is no part of the contract, express or implied. If the underwriter wishes to have notice of a loss, he must stipulate for it in the policy "(r). Notice of abandonment is necessary for claiming a constructive (k) Warrington v. Farior, 8 East, N. S. 799 ; 31 L. J. C. P. 143. 242 ; Hitchcock y. Sumfrey, 5 M. & (o) Cutler t. Southern, 1 Wms. G. 559 ; JFaHon y. Mascall, 13 M. & Saimd. 115. W. 452 ; Carter v. White, L. E. 25 {p) Buller, J., BuffieU v. Scott, 3 C. D. 666 ; 54 L. J. 0. 138. T. R. 377 ; Meffish, L. J., Parker v. (I) Rede t. Farr, 6 M. & S. 121 ; Lewis, L. R. 8 Oh. 1058 ; see post. White Y. Woodward, 5 C. B. 810; p. 931. Frice Y. Kirkham, 3 H. & C. 437 ; 34 (?) Dawson y. Wrench, 3 Ex. 359. Ii. J. Ex. 35. (V) Lush, J., Potter v. Rankin, (m) Supra, n. (k). L. R. 5 C. P. 341 ; 39 L. J. C. P. (m) Sicklemore v. Thistleton, 6 M. & 147 ; Rankin v. Potter, L. R. 6 H. L. S. 9 ; Zawrence v. Walmsley, 12 C. B. 83. oo2 564 THE MATTER OF CONTRACTS. PaetIII. total loss, -when an actual total loss cannot be proved (s) ; and such notice must be given to the underwriter as soon as the insured has obtained sufficient information to enable him to make his election {t).—ln policies of insurance against fire it is commonly stipulated that the insured shall give notice and deliver particulars of the loss, as a condition precedent to his claim on the policy (m) ; and the time limited for the notice of loss is a material part of the condition (x). — In a policy of insurance against death by accident, providing for notice of an accident to be given within a certain time, it was held that the notice was not a condition precedent to the claim, unless made so in express terms (y). Construc- tion of mutual covenants. Indepen- dent cove- nants. Dependent covenants. Concur- rent cove- nants. In contracts containing executory considerations or mutual promises, the obligation of the one promise may be quite independent of the performance of the other. But it may appear upon the construction of the mutual promises, or from the connection of their matter, that the obligation of the one promise is expressly or impliedly conditional upon the due performance of the other ; in which case the promises are not only mutual but also dependent (z) . Hence it is said, " there are three kinds of covenants : 1. Such as are called mutual and independent, where either 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 allege 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 performance 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 cove- nants, which are mutual conditions to be performed at the (s) Boux v. Salvador, 3 Bing. N. C. 266 ; Eniffht v. Faith, 16 Q. B. 649 ; Stringer v. Bug. ^ Scot. Ins., L. R. 5 Q. B. 599; 39 L. J. Q. B. 214 ; Coss- man v. West, L. R. 13 Ap. C. 160. [t) Kaltenba^h v. Mackenzie, L. R. 3 C. P. D. 467; 48 L. J. C. P. 9 ; see Forwood v. N. Wales Ins., L. R. 9 Q. B. D. 732 ; 49 L. J. Q. B. 693. (t() Roper V. Lendon, 1 E. & E. 825 ; 28 L. J. Q. B. 260. ix) See Moore v. Harris, L. R. 1 Ap. Ca. 330 ; 45 L. J. P. C. 61. (y) Stoneham v. Ocean Ace. Ins., L. R. 19 Q. B. D. 237. {:) See ante, p. 119. anoe. THE PROMISE. 566 same time ; and, in these, if one party was ready, and offered Chap. II. 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." And the general rule of construction is : — " That the dependence or independence of covenants is to he collected from the evident sense and meaning of the parties, and however transposed they may be in the deed, their prece- dency must depend on the order of time in which the intent of the transaction requires their performance" («). — " If a day Construc- be appointed for payment of money, or part of it, or for doing ing from any other act, and the day is to happen, or may happen,' perform- before the thing which is the consideration of the money, or other act, is to be performed, an action may be brought for the money, or for not doing such other act before 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"(Z>). " But when a day is appointed for the payment of money, &c., and the day is to happen after the thing which is the conside- ration of the money, &c., is to be performed, no action can be maintained for the money, &c., before performance " (c) . " 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 particularly applies to all cases of sales " (d). {a) Mansfield, C. J., Kingston v. (c) Fordagey. Cole, 1 Wms. Saimd. Preston, cited 2 Doug. 689. 320 o, rule 2 ; see Holt v. Cozens, 18 [b) Fordage v. Cole, 1 Wms. Sannd. C. B. 673 ; 25 L. J. C. P. 254. 320 b, rule 1 ; Holt, 0. J., Thorpe v. [d) Fordage \. Cole, I Wms. Saund. Thorpe, 1 Ld. Eaym. 665 ; 12 Mod. 320 e, rule 5 ; Feelers v. Opie, 2 Wms. 461 ; see Campbell v. Jones, 6 T. R. Saund. 350; see Boogood v. Rose, 9 C. 570 ; Dicker v. Jaekson, 6 C. B. 103 ; B. 132; Giles v. Giles, 9 Q. B. 164. Jtidson V. Bowden, 1 Ex. 162. 666 THE MATTER OF CONTRACTS. Part in. But the construction mainly depends upon the matter of Construe- the mutual covenants or promises. " When two covenants ttTmatter "1 a deed have no relation to each other, the non-performance of mutaai ^f ^[jg ^^g ^q^^i^ uot j^g pleaded in bar to an action brought pronuses. '■ . . , . , for the breach of another ; for this plain reason amongst others, that the damages sustained by the breach of one such covenant may not be at all adequate to the damages sustained by the breach of the other " (e). And " when from the con- sideration of the whole instrument it is clear that the one party relied upon his remedy and not upon the performance by the other such performance is not a condition prece- dent" (/). — "When mutual covenants go to the whole con- sideration on both sides they are mutual conditions, the one precedent to the other ; but where the covenants go only to a part, then a remedy lies on the covenant to recover damages for the breach of it ; but it is not a condition precedent " {g). And " where both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carry- ing out of that thing " (h). Express The above rules are serviceable only as general indications for condi- of the intention of the parties ; and they yield to a contrary cedent.^' intention clearly expressed. " Parties may think some matter, apparently of very little importance, essential, and if they sufficiently express an intention to make the hteral fulfilment of such a thing a condition precedent, it will be one ; or they may think that the performance of some matter, apparently of essential importance and prima facie a condition precedent, (e) Willes, C. J., Thomas v. Cad- v. Jmes, 6 T. E. 573 ; Seeger v. walla4er, Willes, 499 ; see Christie v. Duthie, 8 0. B. N. S. 45 ; 30 L. J. Sorelly, 7 C. B. N. S. 661 ; 29 L. J. C. P. 66 ; London Ga-s Co. \. Chehca, C. P. 153 ; FearouY. Aylesford, L. R. 8 C. B. N. S. 215 ; Settini v. Gye, 14 Q. B. D. 792 ; 54 L. J. Q. B. 33. L. R. 1 Q. B. D. 183 ; 45 L. J. Q. B. (/) Jervis, C. J., JRoberts v. Brett, 209 ; Poiissard-v. Spiers, L. R. 1 Q. 18 0. B. 573 ; 25 L. J. C. P. 286 ; B. D. 410 ; 45 L. J. Q. B. 621. cited post, p. 728, n. (A). (h) Ld. Blackburn, Maekay v. Dick, (g) PordageY. Cole, 1 "Wma. Saund. L. R. 6 Ap. Ca. 263; see Ford v. 320 e, rules 3, 4; Mansfield, 0. J., Cotesworth, L. R. 6 Q. B. 644; 39 Boone v. Fyre, 1 H. B. 273, n. (a) ; L. J. Q. B. 188. 2 "W. Bl. 1, 314, u. (t) ; see Campbell THE PROMISK. 567 is not really vital and may be compensated for in damages " («) . Chap. ii. But the common forms of expressing a covenant or promise to be made "on the performance of all covenants, agreements, and conditions " by the other party, or " in consideration of the covenants " of the other party, or in like terms, are not conclusive, or even material ; and the intention of the parties, as appearing from the substantial matter, wiU prevail over the merely technical frame of the agreement (k). In contracts for the sale of land, the conveyance of the Conditions 111 coil"* estate and the payment of the purchase money are presump- tracts of tively concurrent and dependent acts ; whether a particular land." day be appointed for completion or not ; and readiness and williagness to complete on either side is a condition precedent to liability to complete on the other (l). An actual convey- ance of the land is a condition precedent to the claim for the purchase money ; and if the purchaser refuses to take a con- veyance, the vendor can only claim damages for the breach of contract ; he cannot claim the purchase money so long as he retains the property in the land (m) ; but he may claim specific performance of the contract to compel the purchaser to accept the conveyance and pay the purchase money (n). If the purchase money is to be paid upon an appointed day, and the time appointed for the conveyance will not or may not arrive until after that day, the conveyance is not a condition precedent to the payment, and it is sufficient that the vendor is able and willing to convey according to the contract to entitle him to claim the purchase money (o). And if the purchaser gives a bill or note or other security in payment (i) Fer cur. Bettini v. Gye, supra. L. R. 4 Ex. 309 ; 38 L. J. Ex. 225 ; . \h) Boone v. Eyre, 2 "W. Bl. 1312 ; Howell v. Metrop. Ey., L. E. 19 C. D. StarersY. Curling, Z'Biug.'S.O.Zbb; 608; 51 L. J. 0. 158; Re Milford see Bastin v. Bidwell, L. B. 18 C. D. Docks, L. E. 23 0. D. 292 ; 52 L. J. 238 ; London Guarantee Co. y. Eearn- C. 174 ; and s^e post, p. 924. ley, L. R. 5 Ap. Ca. 911. («) See^osf, p. 964. (Z) Goodison y. JVunn, 4 T. E. 761 ; (o) Fordage t. Cole, 1 "Wms. Sauud. Glazehrook v. Wooirow, 8 T. E. 366 ; 319 ; ante, p. 565 ; Mattock v. King- Heard V. Wadham, 1 East, 619 ; see lake, 10 A. & E. 50 ; Dicker v. Jack- Marsden v. Moore, 4 H. & N. 500 ; 28 son, 6 C. B. 103 ; Yates v. Gardiner, L. J. Ex. 288. 20 L. J. Ex. 327 ; see Weston v. (m) Laird v. Fim, 7 M. & W. 474 ; Collins, 34 L. J. C. 353. see Font London Xfnion v. Metrop. By., 568 THE MATTER OF CONTRACTS. Paet III. Building leases. of the purchase money, he cannot refuse payment of it when due on the ground of default in the vendor, hut is left to his remedy upon the contract ; unless there is a total failure of the consideration {p). — Upon a contract for the sale of land, unless it be expressly stipulated otherwise, the deed of conveyance is presumptively to be prepared by and at the expense of the purchaser ; and it lies upon him to tender it for execution, as a condition precedent to charging the vendor with default in completing {q) . The same rule applies to the sale of terms of years, and of shares (r). Upon granting a lease it is the custom for the lessor's solicitor to prepare the lease, at the expense of the lessee (s). — Building agreements in the ordinary form, by which the builder agrees to build houses upon the land, and the landlord agrees to grant leases of the houses to be built at separate ground rents, are pre- sumptively divisible and entitle the builder to have a lease of each house when finished, without the condition precedent of finishing all the other houses {t). The usual covenants of a lease by the lessor and lessee respectively are for the most part independent, and not con- ditional upon performance on both sides ; notwithstanding merely formal expressions to the contrary. Thus, the cove- nant of the lessor that the lessee, " paying the rent and per- forming the covenants on his part," shall quietly enjoy the demised premises is an independent covenant, upon which the lessee may recover damages, notwithstanding rent in arrear and covenants broken on his part (m). But a covenant to renew the lease, " upon paying the rent and performing the covenants " by the lessee, is dependent and conditional upon Conditions such payment and performance as expressed {x) . — A covenant repair. by the lesscB to repair, the lessor finding timber for the pur- Conditions in leases. [p) Moggridge v. Jones, 14 East, 486 ; Spiller v. Westlake, 2 B. & Ad. 155 (q) Poole V. mil, 6 M. & W. 835. (>■) Per cur. Stephens v. De Medina, 4 Q. B. 428 ; Blackburn, J., Maxted V. Paine, L. B,. 6 Ex. 164. (s) Grissell v. Pobinson, 3 Bing. N. G. 10. [t) Wilkinson V. Clements, L. R. 8 Ch. 96 ; 42 L. J. C. 38. (») Sayes v. Bickerstaffe, 2 Mod. 34 ; Dawson Y. Dyei-, 5 B. & Ad. 584 ; Edge v. Boileau, L. R. 16 Q. B D. 117; 55 L. J. Q. B. 90. (x) Bastin v. Bidwell, L. R. 18 C. D. 238; Finch -v. Underwood,!, R 2 0. D. 310; 45 L.J. C. 522. THE PKOMISE. 569 pose, is conditional upon finding the timber; but readiness Chap. il. and willingness to find it is a sufiicient performance of the condition, for it is not reasonable that the timber should be out before the lessee requires it {y). A covenant by the lessee to repair, taking upon the demised premises sufficient timber for the doing thereof, was held to be an absolute covenant, and not subject to the condition of there being sufficient timber on the premises (2) . A covenant by the lessee to expend a certain sum in repairs under the direction of a surveyor of the lessor, is conditional upon the precedent appointment of the surveyor (a) . A covenant by the lessee to repair a house and outbuildings, the same being first put in repair by the lessor, is conditional upon the whole being repaired by the lessor before he can claim for a breach of the covenant in the non-repair of a part, although that part has been put in repair {b). An agreement to take a house for three years from 24th June, with a stipulation that the land- lord should complete certain repairs before the 14th June, was held to make the completion of the repairs a condition precedent to the liability to take the house (c) . A covenant by lessor to keep the demised premises in repair during the term is impliedly subject to the condition precedent of his receiving notice of want of repair {d). — Upon the letting of Condition a furnished house for present occupation it is an implied fum^^ condition that the house and furniture are in a fit state for ^°^^^- occupation, entitling the hirer, if the condition is not satisfied, to repudiate the contract and refuse to occupy the house or to pay the rent ; as where the house and furniture were found to be so infested with vermin, or so infected from defective drain- age, as not to be habitable {e) ; but if he occupies the house it (y) Thomas y. Cadwallader, "WUles, 36 L. J. C. P. 1. 496 ; Martyn v. Clue, 18 Q. B. 681 ; (e) Tidey t. MoUett, 16 0. B. N. S. 22 L. J. Q. B. 147. 298 ; 33 L. J. C. P. 235. {z) Dean of Bristol T. Jones, 1 E. & {d) Manchester Warehouse Co. v & E. 484 ; 28 L. J. Q. B. 201. Carr, L. R. 5 C. P. D. 507 ; 49 L. J. (a) Coomie v. Greene, 11 M. & W. C. P. 809 ; ante, p. 662, n. (/). 480. (e) Smith v. Marrahle, 11 M. & "W. (S) Neale v. Eateliffe, 15 Q. B. 916 see Cannock v. Jones, 3 Ex. 233 Coward v. Gregory, L. R. 2 C. P. 153 5 ; Wilson v. Finch- Satton, L. R. 2 Ex. D. 336 ; 46 L. J. Ex. 489 ; ante, p. 304. 570 THE MATTEB OF CONTUACTS. Paet III. Conditions in con- tracts of sale of goods. Sale of goods by instal- ments. seems that there is no implied -warranty of its state upon which he can charge the owner (/). In contracts for the sale of goods the delivery of the goods and payment of the price are presumptively concurrent acts ; and readiness and willingness on both sides to perform their respective parts of the contract are mutual conditions pre- cedent (g) ; hut it is not necessary that the buyer should actually tender the money, or that the seller should tender the goods, in order to satisfy the condition sufficiently to maintain an action for not delivering or for not accepting the goods (A). If the contract expressly provides that the pay- ment is to be after delivery, an actual delivery and not mere readiness and willingness to deliver, unless such delivery is waived or refused, is a condition precedent to claiming the price (t). Where a memorandum of agreement stated that the one party bought of the other certain goods, to be paid for by selling to him certain other goods at a stated price and giving a bill for the balance ; it was held to be one entire contract, and that the sales were dependent and conditional upon each party being ready to complete on his part {Jc) . — In contracts for the sale of successive deliveries of goods at fixed periods at a certaia rate of payment, the readiness and willing- ness of the buyer to accept and pay for a deKvery is a con- dition precedent to the liability to deliver ; but the refusal to accept one delivery does not discharge the liability to make future deliveries, and is ground only for a claim for damages, unless the parties expressly stipulate that a default as to one delivery shall put an end to the contract (l). And upon the like construction a default in one delivery of the goods, in (/) Cotton, L. J., Robertson v. Amazon Tug Co., L. R. 7 Q. B. D. 610; 51 L. J. Q. B. 68. (g) Callonel v. Briggs, 1 Salk. 112 ; Morton v. Lamb, 7 T. R. 125 ; see Fields. Lelean, 6 H. & N. 617 ; 30 L. J. Ex. 168 ; Woolfe v. Homo, L. E. 2 a. B. D. 355 ; 46 L. J. Q. B. 534. (h) Eawson v. Johnson, 1 East, 203 ; Waterhouse v. Skinner, 2 B. & P. 447 ; Jaekson v. Allaway, 6 M. & Gr. 942 ; Boyd V. Lett, 1 C. B. 222. (i) BipUy V. Machire, i Ex. 345 ; post, p. 879 ; see Staunton t. Wood, 16 Q. B. 638. {k) Atkinson v. Smith, 14 M. & W. 695 ; see Bankart v. Bowers, L. K. I C. P. 484. {J) Simpson V. Crippin, L. R. 8 Q. B. 14 ; 42 L. J. Q. B. 28 ; Roper V. Johnson, L. K. 8 C. P. 167 ; 42 L. J. C. P. 65, dissenting from Hoare r. Rennie, 5 H. & N. 19 ; 29 L. J. Ex. 73. THE PROMISE. 571 respect of quantity or quality, though it may justify refusal Chap. il. to accept that delivery, does not discharge the ohligation of accepting future deliveries duly offered (m). So a mere de- fault in payment for one delivery does not discharge the seller from future deliveries, provided the buyer is ready and willing to accept and pay for them (n) ; but if the default in payment is made with the manifest intention of repudiating the con- tract, or under circumstances showing a total incapacity to perform it, the seller would be discharged (o). A written agreement, on the one part to deliver straw at the rate of three loads a fortnight during a specified period, and on the other part to pay a stated sum per load " for each load of straw so delivered •during that period," was construed to mean that each load was to be paid for on delivery, not that payment was to be postponed until all was delivered ; and, on the buyer refusing to pay except upon the latter terms, the seller was discharged from further delivery (p). Where a contract is made to take a certain quantity of goods at a certain price, to be delivered in successive instalments, the subject of contract being the whole quantity and not less, the seller is not bound to deliver less, and if the buyer refuses to take an instalment according to the contract, the seller is dis- charged from delivering the residue (q) . — In case of insolvency Insolvency of the buyer amounting to inability to pay his debts, the seller ° ^^^^' may refuse further delivery of goods until payment for goods already delivered. " In such ease the seller, notwithstanding he may have agreed to allow credit for the goods, is not bound to deliver any more goods under the contract until the price of the goods not yet delivered is tendered to him ; and if a debt is due to him for goods already delivered, he is entitled to refuse to deliver any more till he is paid the debt due for (m) Jonassohn v. Young, 4 B. & S. Morgan y. Sain, L. R. 10 0. P. 15 • 296 ; 32 L. J. Q. B. 385 ; see Coddinc/- 44 L. J. C. P. 47. ton T. Faleologo, L. E. 2 Ex. 193 ; 36 (p) Withers t. Reynolds, 2 B. & L. J. Ex. 73. Ad. 882 ; Ld. Blackburn, Mersey (n) Freeth v. Burr, L. R. 9 0. P. Steel Co. v. Naylor, supra. 208 ; 43 L. J. C. P. 91 ; Mersey Steel (y) Sonclcv. Mutter, L. R. 7 Q. B Co. T. Naylor, L. R. 9 Ap. Ca. 434 ; D. 92 ; 50 L. J. Q. B. 629 ; see 53 L. J. Q. B. 497. Renter v. Sala, L. R. 4 C. P,D. 239 ; (o) Bloomer v. Bernstein, L. R. 9 48 L. J. 0. P. 492. 0. P. 588 ; 43 L. J. C. P. 375 ; see 572 THE MATTER OF CONTRACTS. Pabt III, those already delivered, as well as the price of those still to Sale of he delivered " (r). — Contracts for the sale of goods " to arrive "°arriTe°" bj," Or "on arrival by," or "expected to arrive by," a ship named, are construed to be subject to the double condition of the arrival of the ship, and with the goods on board ; so that if the ship is lost or fails to arrive, or if the ship arrives without the goods, or if the goods are transhipped and arrive by another ship, the seller is not bound (s). "The meaning of both these expressions, to arrive, and on arrival, is precisely the same ; the word ' to ' does not mean that the goods ' shall ' arrive, but merely that they shall be sold on their arrival " (i!) . The condition of the arrival of the goods by the ship is not satisfied by the ship having goods on board answering the description, but con- signed to another person (m) ; nor by the arrival of goods of the same kind not substantially answering the description [x) ; nor, where the origiaal shipment has failed, is the contract applicable to another shipment of like description in the same ship (y). A contract for the sale of goods to arrive by a certain date makes the arrival within the date a condition precedent, and not merely an independent undertaking or Sale of warranty on the part of the seller (z). A contract for the sale goods "on ■' ^ . ^ ' _ arrival of of goods merely " on arrival of " a ship named is presump- tively not conditional upon the goods being on board; the seller warrants that the goods are shipped and is responsible if the ship arrive without them {a). So a sale of goods described as " now on passage and expected to arrive by " a ship named, the contract to be void if the ship lost, was construed to be an absolute contract to deliver such goods upon arrival of the ship {h). Upon a contract for sale of ()•) Hellish, L. J., Exp. Chalmers, N. S. 681 ; 27 L. J. C. P. 29- see L. R. 8 Ch. 289; 42 L. J. B. 37 ; Fisehel^. Scott, 15 C. B. 69. any. Sain, L. E,. 10 C. P. 15; (x) Vernede v. Weber, 1 H. & N. 4-4 L. J. C. P. 47 ; see Se Phcenix 311 ; 26 L. J. Ex. 326. Bessemer Steel Co., L. R. 4 0. D. 108 ; [y) Smith v. Myers, L. R. 5 Q. B. 46L. J. C. 115. 429; 39L. ,T. Q. B. 211. (s) Boyd V. Siffkin, 2 Camp. 326 ; (z) Idle v. Tliornton, 3 Camp. 274 ; IdleY. Thornton, 3 Camp. 274 ; Lovatt Aleioyn v. Pryor, Ry. & M. 406. V. Hamilton, 5 M. & W. 639. {a) Sale y. Raivson, 4 G. B. N. S. [t) FavkeiB. , Johnsonv.Macdonald, 85; 27 L. J. C. P. 189. 9 M. & W. 600. (4) Gorrisscn v. Perrin, 2 C B (») Oorrissen v. Perriii, 2 C. B. N. S. 681 ; 27 L. J. C. P. 29 •' see THE PROMISE. 573 goods to arrive by a ship to be named by the seller, " as soon Chap. Ii. as known to him," or " on receipt of next mail," or " as soon as the goods are shipped," the naming of the ship as agreed is a condition precedent to the liability of the buyer to accept the goods (c) . A stipulation as to the delivery of the goods, that they shoidd be taken from the quay was construed to be made in favour of the seller, obliging the buyers, if required, to take delivery from the quay ; and not a condition of accepting the goods, that they should be delivered on the quay {d). In charterparties, the stipulation that the ship shall sail for Coi^ditions '^ . '^ '■ , moharter- the port of loading (e) ; or shall reach the place of loading (/) ; parties : or shall be ready for loading (g) on or before an appointed loading : day, is a condition precedent to the liability of the charterer to load. But the stipulation that the ship shall sail for the port of loading forthwith, or with all convenient speed, or withia a reasonable time, or after completion of present voyage, is held not to be a condition precedent, for want of particularity (h) ; in such case delay or deviation is only ground for a claim for damages ; and it does not discharge the charterer, unless it is such as entirely to frustrate the object of the charterparty («). Hence an accident of naviga- tion while proceeding to the port of loading ; or an accidental fire breaking out in the ship in the course of loading, and thereby causing delay ; does not in general exonerate the charterer (k). And it seems that want of notice of the ship Simmd v. Braddon, 1 C. B. N. S. {g) Shadforth v. Siggin, 3 Camp. 324; 26 L. J. C. P. 198. 385; Oliver v. Fielden, i Ex. 135; (c) £usk V. Spence, i Camp. 329 ; Seeger t. Duthie, 8 C. B. N. S. 45 • Gilkes V. Zeonino, 4 C. B. N. S. 485 ; 29 L. J. C. P. 253. Graves v. legge, 9 Ex. 709 ; 23 L. J. (A) Surst t. Usborne, 18 C. B. 144; Ex. 228. 25 L. J. C. P. 209 ; Tarraboohia v. {d) Neill \. JFhiiworth, 18 C. B. Sickie, 1 H. & N. 183 ; 26 L. J. Ex. N. S. 435 ; 34 L. J. C. P. 153. 26 ; M' Andrew t. Chappie, L. R. 1 (e) Glaholm v. Eays, 2 M. & G. C. P. 643 ; 35 L. J. C. P. 281 ; 257; Croolceviit \. Fletcher, 1 H. & N. Hudson v. Bill, 43 L. J. C. P. 273. 893 ; 26 L. J. Ex. 153. (i) Freeman v. Taylor, 8 Bing. 124; (/) Urown V. Johnson, 10 M. & W. Clipsham t. Vertue, 5 Q. B. 265 ; see 331; Tapseott v. Balfour, Xi. E. 8 Jacksony. Union Ins., L. R. 10 C. P C. P. 46 ; 42 L. J. C. P. 16 ; Davies 125 ; 44 L. J. C. P. 27 ; Tully r T. McVeagh, L. R. 4 Ex. D. 268 ; 48 Bowling, L. R. 2 Q. B. D. 182; 46 L. J. Ex. 686 ; Smith v. Dart, L. R. L. J. Q. B. 388. 14 Q. B. D. 105 ; 54 L. J. Q. B. 121. {k) Jones v. Bolm, L. R. 2 Ex. 574 THE MATTER OP CONTKACTS. Paet III. being ready does not discharge the charterer, unless he is in fact prevented from loading by that cause (1) . Upon the same principle the stipulation that the ship shall arrive at the port of discharge or " as near as she can safely get" is a condition precedent to the liability of the charterer to unload {m). In time charters time is of the essence of the contract, and it is a condition precedent that the ship be ready in time for the charterer to have the use of the ship for the period agreed (»). Upon a charter of a ship for continuous voyages during a certain time, a continuous supply of cargoes is a condition precedent, a default in which discharges the shipowner from further performance ; so upon a charter for outward and home- ward voyages, failure to supply an outward cargo, discharges as to place the shipowner (o). — A statement in the charterparty of the place of the ship at a certain date may operate as a condition precedent to the liabihty of the charterer ; as that the ship is " now at sea having sailed three weeks ago" (p) ; or that the ship is " now in the port of A." (q) ; or " has finally sailed from port " (r). A statement that the ship was " expected to be at A." about a stated date was held to be a warranty, for Descrip- breach of which the shipowner was responsible (s). — A descrip- ship. tion of the ship as being A 1, is a warranty of the fact of her being so classed, and is also a condition precedent to the lia- bility to load ; but it is satisfied by the truth of the description at the date of the charterparty, though the ship loses that class before arrival at the port of loading (t). So the descrip- tion of the ship as being a steam ship warrants that the prin- 335; 36 L. J. Ex. 192; Jackson t. Ex. 259; 41 L. J. Ex. 164; see XInion Ins., supra. Storer v. Gordon, 3 M. & S. 308. {I) Stanton v. Austin, L. R. 7 C. P. (p) Ollive v. Booker, 1 Ex. 416. 651 ; 41 L. J. C. P. 218. (q) Behny. Burness, 3 B. &S. 751 ; (in) Bahl v. Nehon, L. R. 6 Ap. 32 L. J. Q. B. 204. Ca. 38; 50 L.J. C. 411; Capper y. {r) Price v. Livingstone, L. R. 7 Wallace, 5 Q. B. D. 163 ; 49 L. J. Q. Q. B. D. 679 ; 53 L. J. Q. B. 118 ; B. 360 ; Sayton t. Irwin, 5 C. P. D. Garston Co. v. Sickie, L. E. 15 Q. 130; Sorsleyv.JPriee, 11 Q.B.D.244; B. D. 680. 62 L. J. Q. B. 603 ; melseii v. TFait, (s) Corkling t. Massey, L. R. 8 16 Q. B D. 67 ; 65 L. J. ;Q. B. 87 ; 0. P. 395 ; 42 L. J. C. P. 153. Tharsis Sulphur Co. v. Morel, (1891) {t) Burst -7. Vshorne, 18 C. B. 144; 2 Q. B. 647. 25 L. J. C. P. 209 ; South v. M,ic- («) Tally V. Howling, L. R. 2 Q. millnii, 2 H. & C. 760 ; 33 L. J Ex E. D. 182 ; 46 L. J. Q. B. 388. 38 ; French v. Kewgass, L. R 3 C P io) Bradford v. Williams, L. R. 7 D. 163 ; 47 L, J. C. P. 361 THE PROMISE. 575 cipal motive power during the voyage should be steam (u) . Chap. ii. The description of the ship as to size and capacity is a condi- tion precedent to the obligation to load, which may, however, be satisfied with a reasonable allowance, more or less, having regard to the object of the charterparty. " A representation of this sort in a charterparty is a condition precedent or not according to whether it does or does not enter into and affect the substance of the contemplated voyage " («). — The descrip- Seaworthi- tion of the ship as being tight, staunch and strong and fitted for the voyage operates as a condition precedent to the liability to load, if the ship be in fact so unfit for the voyage or the cargo as to frustrate the object of the charterparty ; but a breach of the condition short of frustrating the charterparty would only be ground for a claim to damages (y). Seaworthi- ness and fitness of the ship for the purpose is implied in a contract for the carriage of goods in a ship (s) ; and seaworthi- ness is a condition precedent to the claim for freight payable in advance, because the freighter could not insure the risk except upon such condition («). — Under a charterparty or Conditions bill of lading payment of freight and right delivery of cargo uveiy of are presumptively concurrent acts ; and readiness to deliver paiTnent'^ and readiness to pay are mutual conditions precedent ; the o* freight. shipowner is not bound to deliver without payment and there- fore has a lien for the freight (6) . If the freight is payable " after right delivery," the complete delivery is a condition precedent and the shipowner can retain no lien (c). Where the freight was payable " within three days after arrival of ship and before delivery of the goods," it was held that the (m) Frazer v. Telegraph Co., L. E. (z.) Steel v. State Line Co., L. R. 3 7 Q. B. 566 ; 41 L. J. Q. B. 249 ; see Ap. Ca. 72 ; Tattersall t. National Sogarth v. Miller, (1891) A. 0. 48 ; Steamship Co., L. E. 12 Q. B. D. 297 ; 60 L. J. P. C. 1. 63 L. J. Q. B. 332 ; see Sogarth v. {x) Jervis, 0. 3.,Jiarlcery. Windle, Millar, supra ; and see ante, p. 343. 6 E. & B. 675 ; 26 L. J. Q. B. 349 ; (a) Thompson v. Gillespie, 8 E. & Fustv. Fowie, 5 B. & S. 20 ; 34 L. J. B. 20 ; 24 L. J. Q. B. 340. Q. B. 127 ; Mackill v. Wright, L. R. (b) Fayntery. James, L. E. 2 0. P. 14 Ap. Ca. 106. 348 ; see Stewart v. Bogerson, L. E. {y) Tarrabochia v. SicMe, 1 H. & 6 C. P. 424. N. 183 ; 26 L. J. Ex. 26 ; Stanton v. [c) Foster \. Colby, 3 H. & N. 705 ; Richardson, L. E. 9 0. P. 390 ; 43 28 L. J. Ex. 81 ; Brown y. Tanner, L. J. C. P. 230 ; in H. L. 46 L. J. L. E. 3 Ch. 597 ; 37 L. J. C. 923. 0. P. 78. 576 THE MATTER OF CONTRACTS. Fabt III, three days were allowed for the freighter to pay and take the cargo, and readiness to deliver was a condition precedent ; so that the goods having been destroyed by accident within the three days, the freighter was discharged {d). The condition of delivery of cargo is subject to losses excepted in the charter- party ; and a lump sum agreed for freight becomes payable in full upon delivery of the remainder; but if the whole cargo is lost, though by perils excepted, there can be no de- livery and the freight cannot be claimed (e). Loss or damage of cargo, not excepted in the charterparty, are ground of action or counterclaim, and cannot be deducted from the freight due upon the cargo delivered, unless under a local usage to that effect (/). Freight in the absence of special agreement to the contrary is presumptively payable on so much cargo as has been both shipped, carried and delivered ; calculated, subject to local usage, according to measurement at the port of shipment {g). Freight is presumptively condi- tional upon the completion of the voyage, though it is ex- pressed to be payable at a rate of so much per month during the voyage ; and there is no implied claim pro rata for an incomplete voyage {h). Conditions In indentures of apprenticeship, which are usually made ticeships. between the master, the apprentice, and the father of the apprentice {i), the covenant of the master to teach is con- ditional upon the continued readiness and willingness of the apprentice to learn ; and to an action for the breach of such covenant it is a good answer that the apprentice absented himself from the service without leave ih) ; or that he refused to be taught [1). On the other hand, the covenant on behalf {d) Duthie v. Hilton, L. E. 4 C. P. (gi) Spaight v. Farnworth, L. R. 5 138 ; 38 L. J. C. P. 93. Q. B. D. 115 ; 49 L. J. Q. B. 346 ; (e) Bobinson v. Knit/Ms, L. B. 8 see The Skandinav, 51 L. J. Ad. 93. C. P. 465 ; 42 L. J. C. P. 211 ; Mcr- (A) Smith v. TFilson, 8 East, 437 ; chant Shipping Co. V. Armitaffo, Jj.H. Gibbon y. Mendez, 2 B. & Aid. 17; 9 Q. B. 99 ; 43 L. J. Q. B. 24 ; Swan see ante, p. 61. V. Barber, L. E. 6 Ex. D. 130 ; 49 (i) See ante, p. 473. L. J. Ex. 253. (/f) Kughes v. Sumphrei/s, 6 B. & (/) Daiiidsonv. Givynne, 12 East, C. 680; see Branch v.' JSwington, 381; see Meyer y. Dresser, 16 C. B. Dougl. 518. N. S. 646 ; 33 L. J. C. P. 289 ; ante, {I) Raymond v. Minton, L. E 1 p. 166. Ex. 244 ; 35 L. J. Ex. 163. THE PROMISE. 677 of the apprentice to serve and learn is conditional upon the Chap. II. continued readiness and willingness of the master to teach ; and in a case where the master carried on, and covenanted to teach, three trades, it was held to be a good answer to an action for the desertion of the apprentice that the master had relinquished one of the trades (w). But the covenants are so far independent that misconduct of the apprentice, though it may be ground for a cross action upon the covenant to serve, is no answer to an action upon the covenant to teach (w) ; unless it is expressly provided in the indentures that the covenant to teach shall be conditional upon good behaviour (o), or unless the misconduct is such as to render the continuance of the apprenticeship impossible, as where the apprentice habitually stole the money taken in the business {p). The covenant that the apprentice shall serve, like all other con- tracts for personal services, is conditional upon his continued capability, and if incapacitated by illness, the performance is excused {q). Conditions precedent must be fully performed and satisfied Perform- in order to render the promise absolute ; and it lies upon the conditions promisee to prove the performance or an excuse for non- "^^^"^ ^^ ' performance (r) . It is not required in an action that the performance of all conditions precedent shall be explicitly alleged in the pleadings ; but it is required that the opposite party shall specify in his pleading any conditions the per- formance of which he intends to dispute (s). A partial or defective performance of a condition pre- Partper- cedent is in general not sufficient ; unless the condition and promise are made divisible and apportionable, as in the case of a contract for the delivery of goods or any part thereof, or (m) Ellen v. Topp, 6 Ex. 424. (p) LearoyA t. Brooh, (1891) 1 («) Winstme v. Linn, 1 B. & C. Q. B. 431 ; 60 L. J. Q. B. 373. 460 ; FhillipsY. Glift, 4 H. &N. 168 ; (?) Boast v. Mrth, L. K. 4 C. P. 1 ; 28 L. J. Ex. 153 ; see Maw v. Jones, 38 L. J. C. P. 1 ; see post, p. 607. L. R 25 Q. B. D. 107 ; 59 L. J. Q. B. (r) Heard v. Wadham, 1 East, 631 ; 642. Clack v. Wood, L. E. 9 Q. B. D. 276. (o) Westwick V. Theodor, L. E. 10 (s) Order XIX. i. 14 ; 2 Bullen & Q. B. 224 ; 44 L. J. Q. B. 110. L. Plead. 166, 4th ed. L. P P 578 THE MATTER OF CONTRACTS. PaetHI. of a covenant to build or repair several distinct houses (^). But after the one party has performed the contract in a substantial part, and the other party has accepted the benefit of the part performance, the latter may thereby be precluded from relying upon the performance of the residue as a con- dition precedent to his liability ; in such case he must per- form the contract on his part, and claim damages in respect of the defective performance (ti). "It is remarkable that according to this rule the construction of the instrument may be varied by matter ex post facto; and that which is a con- dition precedent vs^hen the deed is executed may cease to be so by the subsequent conduct of the covenantee in accepting less. This is no objection to the soundness of the rule, which has been much acted upon. But there is often a difficulty in its application to particular cases, and it cannot be intended to apply to every case in which a covenant by the plaintiS forms only a part of the consideration, and the residue of the consideration has been had by the defendant. That residue ■must be the substantial part of the contract" (x). Thus, the conditions in charterparties that the ship shall be ready for loading at a certain day or a certain place, or that the ship shall be seaworthy, which are originally conditions precedent to the obligation of the charterer, cease to be so as to pay- ment of the freight, after the loading and sailing of the ship (y). So the stipulation of loading a full cargo is not a condition precedent as to the payment of freight ^jro rata, for goods in fact shipped and carried ; the freighter having a remedy in damages, if any, for the short delivery (s) . And a stipulation in the charterparty as to the size and capacity of the ship, after loading and saihng, cannot be treated by (t) EUenborough, G. J., Sitchie v. 564. Atkinson, 10 East, 308 ; Nealey.Mat- (x) Per cur. Ellen v. Topp, supra; cliff, 15 Q. B. 916 ; Wilson t. London see Fraiikliny. Miller, 4 A. & E. 699 ; Nav. Co., L. R. 1 C. P. 61 ; 35 L. J. MiUs\. Blackall, 11 Q. B. 358 ; Carler C. P. 9 ; Willcinson v. Clements. L. R, v. Scargill, L. E. 10 Q. B. 564. 8 Ch. 96 ; 42 L. J. C. 38. ' {y) Havelock r. Oeddes, 10 East, (tt) 1 "Wma. Saunders, 320 e ; Ellen 563 ; see Davidson v. Guynne, 12 V. Topp, 6 Ex. 441 ; per eur. Oxford East, 381 ; per cur. Glaholm v. Says, T. Provand, L. R. 2 P. 0. 156 ; Vhite 2 M. & G. 268. ■v.Beelon, 7 H. &N. 42; 30 L. J. Ex. (z) Sitchie v. Atkinson, 10 East, 313; CartcrY.Scarffill, Ij.:R. 10 Q.'B. 296. THE PROMISE. 579 the charterer as a condition precedent to his liahility to pay Chap, n. freight for the cargo shipped and carried {a). Performance of a condition is excused by the refusal of Excuses of the other party to accept it. " The party must show he was ance of ready ; but if the other party stops him on the ground of precedeSf: an intention not to perform his part, it is not necessary for —refusal the first to go further, and do a nugatory act" (6). Upon an executory contract for the sale of goods, a refusal by the buyer to accept, notified by hiTn to the seller and unretracted up to the time appointed for delivery, discharges the condition precedent of delivery or further readiness to deliver, and entitles the seller to claim damages for not accepting the goods without further act on his part (c). So a request by the buyer not to deliver, or to postpone the delivery, wiU excuse delay in delivery, and the seller may recover for a sub- sequent refusal to accept ; but after default in delivery, a request by the buyer to deliver does not waive the default, and he cannot be charged, unless upon a new contract founded upon the request (d) ; so with the sale of a machine conditioned to satisfy a certain trial, if the buyer prevents the trial being made, his liability becomes absolute, and he is chargeable with the price (e). — In ordinary contracts for work and labour, the work is a condition precedent, and must be completed before the payment can be claimed (/) ; but if the employer refuses to allow the other party to do the work contracted for, the latter may claim damages without completion ; and the liability will depend upon which party was in fault in occa- sioning the contract not to be carried into effect (g). — Under a charterparty the liability to pay freight for the carriage of a cargo and delivery to the freighter at a safe wharf, becomes absolute if the freighter refuses to name a wharf for (a) Fiistv. Bowie, 5 B. &S. 20 ; 34 Cassanet, 4 M. & Gr. 898. L. J. Q. B. 127. {d) Flevins v. Downing, L. E. 1 (S) Mansfield, C. J., Jones v. Bark- C. P. D. 220 ; 45 L. J. C. P. 695. lei/, 2 Dougl. 694 ; see Hotham v. (e) MacJcay y. Dick, L. E. 6 Ap. East India Co.,. 1 T. B. 638 ; Laird Ca. 251. T. Pirn, 7 M. & W. 474. (/) Feetersy. Opie, 2 Wms. Sauild. {e) Ripley v. M'Clure, 4 Ex. 345 ; 250. CortY. Ambergate Ry., 17 Q. B. 127 ; (g) Foniifex v. Wilkinson, 1 C. B. 20 L. J. Q. B. 460; see FM y. 75. P P 2 580 THE MATTER OF CONTRACTS. Part III, delivery {h). A promise to pay a sum of money on condition of the promisee executing a release to be prepared by the promisor was held to be made absolute by the default of the latter in preparing and tendering the lease (i). And gene- rally if the promiser refuses to accept the stipulated benefit, which the promisee is ready and willing to give, he may be charged with his promise as absolute (/c) . — A condition pre- cedent which consists in some act of a third party, as the granting of a certificate or a licence, or the making of a valuation, is not excused or discharged by the refusal of such person to act in the matter {I) ; but it is dispensed with by the other party to the contract preventing its performance, so far as it may be dependent upon him, as by refusing to appoint a valuer {m). Upon an assignment of a lease, subject to ob- taining the licence of the lessor, a refusal to accept the lease dispenses with the condition of the licence, and renders the assignee liable in damages (w) . " If a man binds himself to do certain acts which he afterwards renders himself unable to perform, he thereby dispenses with the performance of conditions precedent to the act which he has so rendered himself unable to per- form" (o). Thus if a person contracts to grant an estate, or to make a lease to another upon request, or upon a tender of money, or upon surrender of a former lease, or other con- dition, and afterwards disables himself by conveying all his estate to a third party, he thereby dispenses with the re- quest or other act which would otherwise be a condition precedent to his liability, and renders himself at once liable for a breach of contract [p)- Where a reversioner contracted to grant a lease when the estate came into possession, and afterwards made a lease to another, he was held liable to an immediate action for a breach of contract without waiting Dispensa- tion of per' formance. (h) Stewart v. Mogerson, L. E. 6 C. P. 424. (i) Giles V. Giles, 9 Q. B. 164. (k) Bradley v. Benjamin, 46 L. J. Q. B. 590. (I) See ante, p. 556. {m) Sotham t. East India Co., 1 T. R. 638 ; Thomas t. Fredricks, 10 Q. B. 775. (n) Ellis V. Eogei-s, L. R. 29 C. D. 661. (o) Per cur. Sands v. Clarke, 8 C. B. 762 ; Amorij v. Brodr'ick, 6 B. & Aid. 712. &eepost, p. Oil. [p) Main's case, 5 Co. 20 b ; Zove- lock V. Franklyn, 8 Q. B. 371. THE PKOMISE. 681 for the estate to come into possession {q) . So if a person sells Chap. II. goods, to be delivered upon the request of the buyer, and afterwards sells and delivers the same goods to another person, he dispenses with the request of the former as a condition of delivery (r) . And if a man promises to marry one person and afterwards marries another, he thereby dispenses with all conditions, as to time or request or otherwise, which might have been precedent to his liability to the former (s) . Contracts may provide, .expressly or impliedly, for termina- Conditions tion by lapse of time, or by notice, or by other events ; which quent. then operate as conditions subsequent. It is said " that prima facie every contract is permanent and irrevocable, and that it lies upon a person who says that it is revocable or determin- able to show either some expression in the contract itself, or something in the nature of the contract, from which it is reasonably to be implied that it was not intended to be per- manent and perpetual, but was to be in some way or other subject to determination" [t). Accordingly, where a contract was made between two railway companies for giving to one of them running power over the lines of the other, but with- out mentioning any limit of time or any mode of terminating the power ; it was held that, considering the perpetuity of the contracting parties and of the subject-matter, the contract must have an indefinite duration, according to the prima facie construction of its terms ; and that there was no implied con- dition to terminate it by notice or othervsrise {u) . Contracts may be terminable at the will of one of the Contracts ,. , 1 • I'l 1 'Til 1 terminable parties ; as partnerships, wnicn are terminable by a partner at will. at any time, unless a definite term is fixed in the articles of partnership [x) . And a partnership continued after the term fixed without further agreement, though subject to the (?) Ford V. Tiley, 6 B. & 0. 325. Selbome, S. C, L. E. 7 H. L. 567. (r) Bowdell v. Farsons, 10 East, (u) Llanelli/ Ry. y. London ^ N. W. 359. -H^-i supra. (s) Short T. Stone, 8 Q. B. 358 ; {x) Cairns, L. C, Llanelly Ey. v. Caines v. Smith, 15 M. & "W. 189. London # N. W. Ey., L. E. 7 H. L. [t) James, L. J., Llanelly Ey. v. 660; Syers t. Syers, L. R. 1 Ap. London $ N. W. Ey., L. K. 8 Ch. Ca. 174. 949 ; 42 L. J. C. 887 ; and see Ld. 582 THE MATTER OF CONTRACTS. Pabt III. original articles so far as they are applicable, is termina'ble by either partner at will («/). A notice of dissolution once given cannot be withdrawn, nor can the partnership be restored without the consent of the other partners (z) . Where the articles of partnership provided that if the business should not be conducted to the satisfaction of one of the partners he might give notice to determine the partnership, it was held that such notice might be given arbitrarily without assigning reasons (a) . — A continuing guarantee for an indefinite period may in general be withdrawn by notice and payment of the amount then due under it (b) . An insurance terminable on return of the premium, " for any cause whatever," may be terminated by notice at the mere will of the insurer (c). Leases Leases and tenancies of land may be made terminable by ■by^Sioe. notice. Tenancies at will are terminable by notice at the will of either party (d) ; and a tenancy for a term of years or from year to year may be made terminable at will by agree- ment (e). A lease for 7, 14, or 21 years continues for those successive periods, unless the election to determine it at the end of one of the periods is duly exercised ; and the election rests presumptively with the lessee, if no intention to the contrary is expressed (/). A tenancy from year to year, in the absence of any agreement to the contrary, is by a rule of law terminable by either party giving to the other notice to determine the tenancy half a year before the expiration of the current year (g) ; which is extended to one year for ten- ancies within the Agricultural Holdings Act, 1883, s. 33, unless otherwise agreed (h). The half-year's notice required (i/) Neilson v. Mossend Iron Co., (e) Re Threlfall, L. E. 16 C. D. L. K. 11 Ap. Ca. 298 ; see Myers v. 274 ; 60 L. J. C. 320. Myers, 60 L. J. C. 311 ; DaviY. Her- (/) Fowell \. Tranter, 3 H. & C. ring, (1892) 1 Ch. 284 ; 61 L. J. C. 5. 458; 34L. J. Ex. 6; Powells. Smith, (2) Jones V. Lloyd, L. E. 18 Eq. L. E. 14 Eq. 85 ; 41 L. J. C. 734. 271 ; 43 L. J. C. 826. (g) Right v. Darby, 1 T. E. lo9 ; (a) RussellY.Russellj'L.'&.liO.'D. nee Bridges y. Potts, 17 C. B N S 471. 314 ; 33 L. J. C. P. 338 ; Sandill t. (J) Burgess v. Eoe, L. E. 13 Eq. Franklin, L. E. 10 C. P. 377 • 44 450; 41 L.J.C.515; ante,p.30,n.{;(). L. J. C. P. 216 ; Ahcarn v. Bellman, (c) Stm Fire Offiee v. Hart, L. E. L. E. 4 Ex. D. 201 • 48 L J Ex 14 Ap. Ca. 98 ; 68 L. J. P. C. 69. 681. ■ . . (d) Co. Litfc. 65 a, b. (A) Wilkinson v. Calvert, L. E. 3 rescission. THE PROMISE. 583 by law is a customary half-year, measured by the usual Chap. II. quarter days ending 29th September or 25th March (»). — Leases with conditions of forfeiture are terminable upon the Conditions •'^01 lorfei- specined default of the tenant, as for non-payment of rent, ture. not repairing, or not performing or observing other cove- nants (/i) . Such conditions render the lease voidable at the election of the lessor, who must give notice or in some other sufficient manner express his election to avoid it (I) ; but they do not enable the lessee to take advantage of his own wrong to determine the lease against the will of the lessor {m) . The forfeiture may be waived by a subsequent acceptance of rent or other unequivocal recognition of the tenancy by the lessor, after having notice of the cause of forfeiture («) ; and the production of a receipt for rent is evidence of such waiver (o) . In contracts for the sale of land it is usual to insert a con- Saleofland dition entitling the vendor to rescind the contract in case of dition for objections made to the title which he is unable or unwilling to remove {2^) . This condition must be exercised bond fide and upon reasonable grounds and not arbitrarily ; and it is held to be presumptively the duty of the vendor, notwith- standing the condition, to answer all reasonable requisitions of the purchaser as to the title, in order to give him the opportunity of waiving such objections as cannot be removed and accepting such title as the vendor can give {q). If the purchaser insist upon his requisition the vendor may within a C. P. D. 360 ; 47 L. J. 0. P. 679 ; bury, L. R. 6 Q. B. 344 ; 40 L. J. Barlow v. Teal, L. E.. 15 Q. B. D. Q. B. 125 ; see Shepherd t. Berger, 501 ; 64 L. J. Q. B. 564. (1891) 1 Q. B. 597; 60 L. J. Q. B. (») Morgan v. Davies, L. E. 3 C. 395. P. D. 260; post, p. 733. (0) Conveyancing Act, 1831, s. 3. l/c) See Evans v. Davis, L. R. 10 See Re Moody and Yates, L. E. 30 0. D. 747; 48 L. J. 0. 223; Re C. D. 344; '54 L. J. C. 886; Re Andertoti's Contract, L. E. 45 0. D. Siggins and Percival, 57 L. J. C. 807. 476. (p) Re Terry and White, L. R. 32 d) Doe V. Bands, 4 B. & Aid. 401 ; C. D. 14 ; 55 L. J. C. 343 ; Kardman Arnshy t. Woodward, 6 B. & C. 519 ; v. Child, L. E. 28 C. D. 712 ; 64 Roberts v. Davey, 4 B. & Ad. 664 ; L. J. C. 695. Jones v. Carter, 15 M. & "W. 718 ; (?) Greaves v. Wilson, 25 Beav. see Weston v. Metrop. Asylum, 9 Q. 290 ; 27 L. J. C. 546 ; Turpin v. B. D. 404 ; 51 L. J. Q. B. 399. Chambers, 29 Beav. 104 ; 30 L. J. C. (m) Rede v. Farr, 6 M. & S. 121. 470 ; Mawson v. Fletcher, L. E. 6 Ch. (n) Doe V. Birch, 1 M. & W. 402 ; 91 ; 40 L. J. Q. B. 131 ; Re Starr- Dendy v. Nicholl, 4 C. B. N. S. 376; Bowkett Bg. Soc, L. E. 42 0. D. 27 L J. 0. P. 220 ; Toleman v. Port- 375 ; 53 L. J. C. 459. 584 THE MATTEK OF CONTRACTS. Pabt III. reasonable time give an absolute notice of rescission ; and the purchaser will be thereby precluded from afterwards waiving the objection (r). On the other hand, if the vendor elects not to rescind, he is bound by his election once made ; and he may be presumptively bound by continued negotiations and delay inducing the purchaser to treat the contract as subsisting ; and " the condition once waived is gone for ever " (s) . The vendor may elect to rescind after commencing a suit for specific performance, upon an objection first made in the course of the suit ; but the suit will operate in waiver of the right as to all prior objections {t). The above con- dition does not apply to the case of a vendor selling without any title at all ; nor to objections which are made indepen- dently of the title shown by him {u) . A condition that in case the vendor fails to show a good title, or the purchaser fails to pay the money on the appointed day, the contract shall be void, is construed to give an election to the one party to rescind the contract upon the specified default of the other ; but not to entitle either to avoid the contract by a default on his own part (x) . Sale of The condition in a sale of goods with a warranty that in conditirai case of a breach of the warranty the buyer may return the goods and recover the price paid, entitles the buyer to rescind the contract ; which he could not do without such condition, except with the consent of the seller, or in a case of fraud («/). He must return the goods under the condition as soon as he reasonably can after discovery of the breach of warranty ; but if the condition provides a limited time for the return of the goods, the buyer may act upon it at any time within the limit ; and in the meantime the goods remain at the risk of ()■) Duddell V. Simpson, L. R. 2 Ch. (t) Grai/ v. Fouler, L. E. 8 Ex. lO'Z ; 36 L. J. C. 70 ; Se Dames and 249 ; 42 L. J. Ex. 161. Wood, L. R. 29 C. D. 626 ; 54 (m) Bowman v. Syland, L. R. 8 L. J. C. 771 ; see Wookott v. Feggie, 0. D. 588 ; 47 L. J. C. 581 ; see Re L. R. 15 Ap. Ca. 42 ; 59 L. J. P. C. Jackson and Oakshott, L. R. 14 C. D. 44. 851 ; 49 L. J. C. 523 ; Sardman v. (s) Wigram, V.-C, Morley v. Cook, Child, supra. 2 Hare, 106 ; Gardom v. Lee, 3 H. & (x) Uoherts y. TTmtt, 2 Taunt. C. 651 ; 34 L. J. Ex. 113 ; Shorcdilch 268 ; see ante, p. 583. Vestry v. Sughes, 17 C. B. N. S. (tj) See ante, p. 335. 137; 33 L. J. 0. P, 349, of war' ranty. THE PROMISE. 585 the seller (s). A warranty of goods is sometimes made with Chap. ii. the condition that a claim for a breach of the warranty shall be made within a limited time ; in which case if no claim is made during the time the warranty ceases ; and such condi- tion applies to breaches of warranty existing during the time, though they are not discovered by the buyer until after the time has elapsed (a) . Contracts of hiring personal services are usually made Contracts of ssrvicG terminable by a notice to be given by either party ; and in terminable some cases the condition of notice is imported into the con- ^ ^° ''*'^' tract by usage or by law, in the absence of agreement to the contrary (b) . The engagement of menial or domestic servants is by general usage terminable by a month's notice on the part of the servant ; and by a month's notice or payment of a month's wages on the part of the employer (c). A hiring of service for an undefined period at annual wages is pre- sumptively a hiring for a year, which requires no notice unless continued beyond the year {d ) ; and a hiring at monthly or weekly wages is presumptively a hiring by the month or week (c). An indefinite hiring, in the absence of any indi- cation or usage to the contrary, is terminable by a reasonable notice according to the circumstances (/). It is not illegal for a person to contract to serve in a certain employment ex- clusively for the term of his life (g). — " The relation of a master of a ship to his employer, the shipowner, is not one in which, in the case of an indefinite hiring, the law has made, nor is there any custom making, the hiring a hiring for a year or for any other definite time, nor the notice by which the (z) Sead v. Tattersall, L. K. 7 Ex. Fairman v. Oakford, 5 H. & K. 635 ; 7 ; 41 L. J. Ex. 4. 29 L. J. Ex. 459 ; Brown v. Sijmonds, {a) Smart v. Syile, 8 M. &W.723; 8 C. B. N. S. 208; 29 L. J. C. P. Chapman v. Givyther, L. B. 1 Q. B. 251 ; langton v. Carleton, L. E. 9 Ex 463 ; 35 L. J. Q. B. 142 ; see Sinch- 57 ; 43 L. J. Ex. 54. cUffe V. Barwick, L. R. 5 Ex. D. 177 ; (e) The King t. Mitcham, 12 East, 49 L. J. Ex. 495. ■ 351 ; The King v. Dodderhill, 3 M. & (*) Parlcery. Ibietson, 4 C. B. N. S. S. 243 ; £vans v. Zoe, L. E. 7 C P 346 ; 27 L. J. 0. P. 236. 138. [e) Nowlan v. Ablett, 2 C. M. & E. (/) See per cur. Seeston v. Oollger, 64 ; see ante, p. 171. 4 Bing. 312 ; Zowe v. TFalter, Times (d) The Xingy. Sampreston, 5 T. E. Eep. 23 Feb. 1892. 205 ; Fawcett v. Cash, 5 B. & Ad. 904 ; (g) Wallis v. Bay, 2 M. & W. 273 • Baxter v. Nm-se, 6 M. & G. 938 ; post, p. 635. 586 THE MATTER OF CONTE.ACTS. Paet III. service is to be determined certain " ; but the nature of the service implies a reasonable notice for its termination by either party {h) . Alterna- tive pro- mises. Election in the promiser. An alternative promise binds the promiser to the perform- ance of one or other of several matters, either at the election of the promiser or at the election of the promisee. And the general rule is that " the person who is to perform one of two things in the alternative has the right to elect" ; in the absence of any intention appearing to the contrary (?'). — The condition of a bond for the obligor to deliver to the obligee certain securities, or to execute such a release of them as the obligee should devise, was construed to give the election to the obligor, and to require a tender of the release by the obligee as a condition precedent to the election, in default of which the obligor was discharged (k). So the condition of a bond to grant an annuity to the obligee, if he should require the same, or to pay him a sum of money, was held to give the election to the obligor, the request of the obligee being a con- dition precedent to an exercise of the election (/) . A reserva- tion of rent at the four usual quarter days, or within thirteen weeks after each, was held to give the election to the lessee, as to the time of payment {m) . And an agreement for a loan of money " for the term of nine or six months " was held to give the borrower the election as to the time [ii). So a sale of goods at six or nine months' credit gives the election to the buyer ; and by not paying at the end of six months he makes his election to take credit for nine (o). A sale of goods at six months' credit and then to be paid for by a bill at two or three months, was held to give nine months' credit, before the debt for the goods accrued due {p). — A covenant to make a settlement in certain terms by deed or will was construed to leave the election in the covenantor to make it (A) Creen v. Wright, L. R. 1 0. P. D. 594. (s) Layton v. Fearce, 1 Dougl. 15 ; Giffard, L. J., Brookiiian's Trusts, L. R. 5Ch. 191. {k) GreniiKjham v. Eioer, Cro. Eliz. 396, 539. {I) Bassett v. Bassett, 2 Mod. 200. Im) Chin's case, 10 Co. 127. (n) Reed v. Killiurii Co-op. Soc, L. E. 10 Q. B. 264 ; 44 L. J. Q. B. 126. (o) Fricc V. Nixon, 5 Taunt. 338. [p) Helps V. Wintcriottom, 2 B. & Ad. 436 ; ante, p. 551 ; see Cothay v. Murray, 1 Camp. 335. THE PROMISE. 587 in either form ; so that the covenant was discharged by a will Chap. il. in the required terms of settlement, although in that form it was subject to failure by lapse (?). So where a person bound himself either to convey land to his wife, or to leave her the value by legacy, it was held that, having the election, he was discharged by the death of his wife in his lifetime (r) . — In Election the case of a gift of one of several things, as one of the horses promisee, in a stable; or a devise of one of the houses in a street, there being several of the kind in each case, the election is in the donee (s). And where a bond was conditioned for delivery to the obligee at a certain time and place twenty pounds or 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 election [t). And as a general rule, where there are two places named in a contract for payment, it is for the person to whom the payment is to be made to fix the place, and until he has elected the place, there can be no default (u). If the promisee has the election of the alternative act. Notice of he must give notice of the election made to the promisor, as a condition precedent to charging him with the promise {x) . Thus under a lease reserving rent "to be paid quarterly or half quarterly if required," it was held that the lessor could not distrain for a half-quarter's rent without previous notice to the lessee of his election to take the rent at that period (y) . A contract to deliver a certain quantity of iron, all in Novem- ber, or equally in November, December, and January at an increased price per ton, was held to give the election to the buyer ; who was bound to give notice of his election in time for the seller to execute the alternative chosen; and in (j) Broohman's Trusts, L. R. 5 Ch. (t) Fordley's case, 1 Leon. €8. 182; 39 L. J. 0. 138. (m) Thorn v. City Mice Mills, L. E. (r) Laughter's case, 5 Co. 21 b ; see 40 C. D. 357 ; .58 L. J. 0. 297. post, p. 617. («) Fercur. Vyse\. Wakefield, 6M. (s) Co. Lit. 145 a ; Duckmanton v. & W. 442 ; see Itippinghall v. Lloyd, Duckmanton, 5 H. & N. 219 ; 29 L. J. 5 B. & Ad. 742 ; ante, p. 562 ; see Ex. 132; Tapley T. Eagleton, L. R. Thorny. City Sice Mills, supra. 12 C. D. 684 ; see per cur. Richardson [y) Mallam v. Arden, 10 Bing. 299. V. Watson, 4 B. & Ad. 787. election. 588 THE MATTER OF CONTRACTS. Election irrevoc- able. Paet III. default of notice during November, the seller was discharged from delivering any portion (s). An election once made is final and irrevocable, and the promise thereupon becomes single and absolute. " Where there is an election given by a contract, and the election is made, it is the same as if there had been no election ; and the party is absolutely bound to do that which he has elected to do " {a). But in pleading the contract should be charged in the alternative according to the fact, with an averment of the subsequent election making it absolute [h) ; and if the promiser has made no election, he must be charged with a breach of both alternatives (c). — Under a policy of insurance against fire, with the condition reserving to the insurer the election to reinstate the insured premises instead of paying for the damage, the insurers having given notice that they elected to reinstate were held bound by their election ; although the premises were afterwards pulled down by the public authority as being dangerous (rf). Where a contract was made to deliver cotton in August or September at seller's option, and notice was given by him that the cotton was ready for delivery in August ; he was held bound by the notice given, and having made default in August, the buyer was discharged from accepting any later delivery' (e) . The construction of the contract may bind the promiser to a certain specified performance or to pay a certain sum of money, thereby making non-performance a condition precedent to the payment ; in which case, unless the money is construed as a mere penalty, it becomes an absolute liqui- dated debt (/). Accordingly, under an agreement to return Promises to pay in default of perform- ance. (z) Sonel; v. Muller, L. E. 7 Q. B. D. 92; 50 L. J. Q. B. 529; see Oalaminus v. Dowlais Iron Co.^ 47 L. J. a. B. 575. (a) Campbell, C. J., Brown v. Royal Ins., 1 B. & E. 853 ; 28 L. J. Q. B. 275 ; see Co. Lit. U6 a ; Mansfield, C. J., layton v. Pearce, 1 Dougl. 16. (J) Tate T. Wellings, 3 T. R. 531 ; Painij V. Porter, 2 East, 2. (c) Bichard^ v. Pluck, 6 C. B. -137 ; Leigh v. Lillie, 6 H. & N. 165 ; 30 L. J. Ex. 25. (d) Brown \. Moyal Ins., supra ; see Anderson v. Commercial Union Ass.. 55 L. J. Q. B. 146. (e) Galh v. Zees, 3 H. & 0. 558. (/) Pevcrill Y. BurneU, L. R. 8 C. P. 475 ; 42 L. J. C. P. 214 ; as to penalties, see post, p. 934. THE PKOMISE. 589 bills of exchange which were delivered for presentment or Chap. ii. to pay the amount of the bills, the promiser, on default in returning the bills, was held liable to pay the full amount, though the bills had become worthless (A). So with a bond conditioned to marry the obligee or to pay him a stated sum {i) ; and a bond to grant a lease to the obligee, or pay him a sum of money (k). So with a covenant by a lessee not to cut trees, or to pay a certain sum for each tree cut {I) ; or to leave premises in repair or to pay estimated damages (««) ; and a covenant not to carry away manure, or to pay an in- creased rent («) ; and a covenant by a lessee of minerals to work a certain quantity every year, or to pay a fixed rent (o) . Upon a sale of goods to be paid for by cash with discount, or by bill at three months, the buyer upon refusing to accept the bill, becomes at once indebted for the cash(jj). Where the grantee of a patent covenanted to pay a certaia sum in royalties, or to forfeit the patent, it was held that he was not bound absolutely to pay the money, but might alternatively forfeit the patent (q). — But in the case of a promise strictly alternative between two independent matters, if the promiser neither elects or performs either, the amount recoverable as damages is measured by the alternative which is least bene- ficial to the promisee (r). {h) Deverillv. Burnell, supra. (o) BiiteY. Thompson, 13 M. feW. (t) Box V. Say, 1 Wils. 59. 487 ; see Clifford v. Watts, L. E. 5 (k) Anon., Salk. 170 ; 1 Ld. Kaym. 0. P. 577 ; 40 L. J. C. P. 36 ; and 279. see post, p. 596. (?) Surst T. Hurst, 4 Ex. 571. (p) Zugff v. Weir, 16 C. B. N. S. (m) Studholme v. Mandell, 1 Ld. 471. Kaym. 279. [q) Tielens v. Hooper, 5 Ex. 833. (n) Zeiffh V. Lillie, 6 H. & N. 165 ; (r) Bovfll, C. J., Severill v. Surnell, 30 L. J. Ex. 25. supra ; see post, p. 899. 590 THE MATTER OF CONTRACTS. Chapter III. IMPOSSIBILITY OF PERFOEMANCE. PAQE Impossibility in fact — impossibility relative to promiser — impossibility in law — impossibility by act of God 591 Impossibility at the time of contracting : — known to the parties — legal impossibility — impossibility not known to the parties — impossibility known to one party only .... 593 Impossibility subsequent to contracting — covenants to repair — to pay rent — for building works — charterparties — exceptions in charterparties 597 Implied exceptions to carrier's liability — carriers of passen- gers ; G03 Implied exceptions of impossibility in contracts for per- sonal performances — contracts of marriage — of service — of partnership— contracts relating to specific things — sale of goods — contracts of bailment 606 Impossibility caused by promisee — by promiser 611 Impossibility caused by law — by acts of State — by acts of foreign law or State — exception of restraint of rulers . . 612 Impossibility of one of alternative promises — alternative subsequent impossibility — covenants to dispose by deed or will 616 Consideration of promise impossible ■, . . . 618 Paet III. The promise expressed in the terms of tlie agreement may Impossi- lie impossible of performance, and questions then arise as to ^erform- ^^® nature and eifect of the impossibility. The impossibility ance. may be absolute, that is, inherent in the nature of the matter promised ; or it may exist only relatively to the ability and circumstances of the promiser. The performance may be impossible as a matter of fact ; or it may be impossible only by the rules of law. The impossibility may exist at the time of contracting, either with or without the knowledge of the parties ; or it may arise subsequently to the making of the contract, and in the latter case it may be caused by events IMPOSSIBILITY OF PERFORMAKCE. 591 teyond the control of the parties, or it may he caused hy Chap. in. some act of the promiser or of the promisee. The impossi- bility may affect the promise, or the consideration for the promise. These variations in the nature and incidence of the impossibility produce corresponding modifications in its effect, which have been the subject of judicial consideration. A promise is impossible iu fact which is contrary to the i^'possi- law of nature ; and a practical impossibility, or impossibility fact, relative to existing circumstances, is equivalent for most purposes to impossibility in fact (a) . " In matters of busi- ness 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;" thus if a ship sustains such extensive damage that when repaired it will not be worth the sum spent upon it, " the repairs are, practically speaking, impossible, and it is a case of total loss "(5). Whether a promise is reasonable or not, provided it be reasonably certain and 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 reason- able, it is his own fault for entering into such a contract" (c). — But a promise must be reasonably certain ; and if the Unoer- parties have expressed the matter of their agreement in such terms. imcertain or imperfect terms that it is impossible to ascertain any definite meaning, the agreement is necessarily void ; for " in every deed there must be such a degree of moral cer- tainty as to leave in the mind of a reasonable man no doubt of the intent of the parties " (rf) . — Impossibility relative to Impossi- the ability of the promiser is immaterial to the validity of a tive to promiser. («) Holt, C. J., Thomborow v. Ves. sen. 155 ; 1 Wils. 295. Whitacre, 2 Ld. Eaym. 1165. (d) Tenterden, C. J., Coles v. (*) Maule, J., Moss v. Smith, 9 Bulme, 8 B. & C. 573 ; see Guthing C. B. 103. T. Lynn, 2 B. & Ad. 232; Boiling v. (c) Eolfe, B., Vyse v. Wakefield, 6 Evans, 36 L. J. C. 474 ; Pearce v. M. & W". 466; see Thornborow v. TFarts, L. R. 20 Eq. 492; 44 L. J. C. Whitacre, supra; Jones v. Morgan, 1 492; and see «)jte, p. 183. ijey. Ill, cited Hardwicke, L. C, 2 592 THE MATTER OF CONTRACTS. Impossi- bility in law. Paet III. contract ; as ia the case of a person contracting debts which he is or becomes unable to pay for want of money (e) ; or contracting for the happening of events over which he has no control, as that it shall rain to-morrow (/). — So a person may promise for the acts of a third party, and he will be liable in damages, though he cannot compel the performance ; as in the case of a lessee contracting absolutely to assign a lease which he cannot assign without the consent of his landlord {g) ; or a contract to procure a third party to execute a conveyance or a release (A) ; or to make a valuation («') . The incumbent of a living in giving a resignation bond im- pliedly undertakes that the bishop will accept his resignation, and the bond is forfeited if the bishop refuses his consent (A-). A promise may be impossible in law, in that it may import to have or produce a legal effect or operation which the law does not admit of. Impossibility of this kind differs from illegality in that it relates only to the legal effect which the act purports to have, and not to the question whether an act possible in itself is allowed or forbidden by law {I). Impossi- Impossibility of performance caused " by the act of Grod " is act of God. sometimes treated as a special kind of impossibility affecting the obligation of contracts [m). It is a compendious phrase including such accidents as death, tempest, and the like, which though referable to natural causes, are beyond the control and calculation of the parties ; and it is commonly used for the purpose of excepting such accidents from the contract. " The act of Grod is in some cases said to excuse the breach of a contract. This is in fact an inaccurate expression, because where it is an answer to a complaint of an alleged breach of contract that the thing done or left (e) Holt, C. J., Thornborow v. Whitacre, supra. (/) Maule, J., Jones v. How, 9 C. B. 9 ; Canham y. Barry, 15 C. B. 619 ; 24 L. J. C. P. 106. (g) See Canham v. Barry, supra; and see Lloyd v. Crispe, 5 Taunt. 249. ih) Larnh's case, 6 Co. 23 b ; Doughty v. Neal, 1 Wms. Saund. 214. (i) Studholme v. Mandell, 1 Ld. Raym. 279. (h) Grey v. Besketh, Ambler, 268 ; see Fletcher v. Sondes, 3 Bins. 501 : 9 Geo. IV. c. 94. [I) See post, pp. 694, 612. (m) Cockbm-n, C. J., Nugent v. Smith, L. R. 1 C. P. D. 429 ■ 45 L. J. C. P. 702. IMPOSSIBILITY OF PERFORMANCE. 593 undone was so by the act of God, what is meant is that it was Chap, hi. not within the contract " (m). Axid it is a rule of law that in all cases of duty or liability imposed by common law there is an implied exception of "the act of God;" but that contracts are to be construed according to their terms, without any such implied exception (o) . — The events excepted as being Events acts of God include all natural accidents, which it is prac- tically impossible to foresee or guard against ; as an extra- ordinary storm (js). "No doubt a shower is the act of God as much as a storm ; so is an earthquake in this country ; yet everyone understands that a storm, supernatural in one sense, may properly, like an earthquake in this country, be called an act of God, or vis major. No doubt not the act of God or a vis major in the sense that it was physically impos- sible to resist it, but in the sense that it was practically impossible to do so"{q). So a frost of extraordinary severity (r), an extraordinary fall of snow (s), an extra- ordinary rainfall (t), and an extraordinary high tide («.), which could not reasonably be foreseen and guarded against, are exceptional events of the above kind. A fog is an ordinary peril of navigation and not such an exceptional event («) . And fire is also considered as an ordinary pre- ventible accident (y). Where a promise is impossible in fact at the time of Impossi- making the agreement, the construction depends, in great thne^of measure, upon whether such impossibility is then known or ^g*!!" not known to the parties. Where the impossibility is known ^™''™; *° the parties. (n) Fer cut. Baily v. De Crespigny, ir) Blyth v. Birmingham Water- L. B. 4 Q. B. 185; 38 L. J. Q. B. worhs, 11 Ex. 781 ; 25 L. J. Ex. 102. 212 ; see Kearon v. Pearson, 7 H. & (o) Per cur. Nichols v. Marsland, N. 386; 31 L. J. Ex. 1. L. K. 2 Ex. D. 4; 46 L. J. Ex. 178; (s) Briddon v. 6. N. Ey., 28 L. J. see post, p. 597. Ex. 51. (p) Per cur. Nugent v. Smith, L. E. [t] Nichols v. Marsland, supra. 1 C. P. D. 434 ; 45 L. J. C. P. 697 ; (u) Nitro- Phosphate Co. v. London JRiiier Wear Com. v. Adamson, supra; S; K. Hocks, L. E. 9 C. D. 503. The Queen v. Fobbing, L. B. 11 Ap. {x) Ziver Alkali Co. y. Johnson, Ca. 449 ; 64 L. J. M. 89. L. E. 9 Ex. 338. (q) Per cur. Nichols v. Marsland, (y) Forward v. Pitiard, 1 T. E. 33 ; L. E. 10 Ex. 258 ; 44 L. J. Ex. 134. see Bourne v. Gatliffe, 7 M. & G. 850. L. Q Q 594 THE MATTER OF CONTRACTS. Paet III. to the parties at the time of makiBg the agreement, it seems obvious 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 reasonably be supposed to be the subject of a promise or of the consideration for a pro- mise (s). A covenant in a charterparty executed on the 15th March, that the ship should sail on or before the 12th of February, was held to be wholly nugatory, and therefore no part of the contract («) . A covenant in a lease, which was not executed until some years after the commencement of the term, to keep the demised premises insured during the term, was held not to attach until a reasonable time for in- suring had elapsed after the execution of the lease (i). By the common law, if the condition of a bond is manifestly impossible in fact at the time of making it, as " to go from Westminster to Rome within three hours," the condition is Legal im- yoid and the obligation single and absolute (c) . — Upon this principle, where the promise is impossible in law, both parties being presumed to know the law, there is no valid contract ; as a promise by a baihfE to discharge the promisee from a debt due to his master, which he is incapable in law of per- forming, and which therefore was held to be void(fi?). A covenant by a person to pay a sum of money to himself and others was described as senseless, and was held void by reason of the impossibility of a person paying money to himself (e). An agreement for opening a theatre at a place where by law a licence could not be obtained (/). An agreement by the assignees of a bankrupt, as the consideration for a promise to pay certain debts, that the bankrupt should not be examined concerning those debts, was held void because it was beyond their legal capacity to perform (ff) . In the case of a bond, a (z) See ante, p. 591, n. (c) ; Bing. 265. Brett, J., Clifford v. Watts, L. R. 5 {d) Sarveij v. Gibbons, 2 Lev. 161. C. P. 588. (e) Faulkner v. Lowe, 2 Ex. 695. {a) Hall T. Cazenorc, i East, 477. (/) Lerij v. Yates, 8 A. & E. 129. (b) J Ice Y. Ulph, 13 a. B. 204. (y) Ncrot v. Wallaee, 3 T. K. 17; (c) Co. Lit. 206 b ; Perkins, ss. 735, see Baslam v. Sherwood, 10 Bing. 540. 736; per ciir, Hiiiiri/ier Y. Fellows, 5 possibility. IMPOSSIBILITY OF PERFORMANCE. 595 condition impossible in law is void ; and if the bond is given Csaf. in. for an illegal purpose, the bond also is void by reason of the participation of the obligee in the illegal transaction; as a bond conditioned for the assignment of a patent to a com- pany, contrary to a provision of the patent restricting such assignment (h). The parties may come to an agreement in ignorance that ■^^]?°^\- the periormance is then impossible ; either under a common time of mistake of fact and v^ith the intention of contracting only ing not upon the supposition of the performance being possible ; or t^e^p^tles knomng the circumstances, with the intention of contracting for the performance in all events, whether possible or not. In such cases the question is whether upon the construc- tion of the agreement, as applied to the circumstances, it has been made impliedly conditional upon the possibility of performance, or whether there is an absolute unconditional contract in the terms expressed («). Thus upon the sale of a implied certain cargo of goods then supposed to be on the voyage, of possi- but which unknown to both parties had been then sold by ^^*y- reason of sea damage, it was held that the contract imported the condition that the cargo was then in existence, and under the circumstances was void {k) . But upon a contract for the sale and delivery of goods on the arrival of a certaia ship, the seller was held liable for non- delivery, though no such goods were on board ; the only condition expressed being the arrival of the ship (/). And where the vendor of a ship covenanted that he had then power to sell the ship, it was held that the covenant was absolute ; and that it was broken if the ship had ceased to exist as a ship at the time of the sale, although both parties were ignorant of it ; but that if the ship, however damaged, was then in existence, there was no breach (m). — So the sale of a life annuity is impliedly conditional upon (A) Duverffier v. Fellows, 5 Bing. 5 H. L. C. 673 ; 25 L. J. Ex. 253. 248 ; 10 B. & C. 826. {I) Sale t. Sawson, i C. B. N. S. (i) See ante, p. 283 ; Esher, M.E., 85 ; 27 L. J., C. P. 189 ; see ante, Barrison v. Muncaster, (1891) 2 Q. B. p. 572. 686. (w) Sarr v. Gibson, 3 M. & W. {k) Couturier v. Sastie, 9 Ex. 102 ; 390 ; ante, p. 286. Q Q 2 596 THE MATTER OF CONTKACTS. Paet III. the annuitant being alive at the time of the sale (m) ; and the renewal of a life insurance is impliedly conditional upon the continued existence of the life insured (o). But a covenant to insTire a life for the purpose of securing a fund for settle- ment, was held to be absolute, though the life was uninsur- able (p). And a covenant in an assignment of a lease for lives, that the lease is a valid lease for the lives and the sur- vivor was held to import only that the lease so described was still subsisting, thereby excluding any implied covenant or condition that all the lives were then in existence (q). — A covenant in a lease of a colliery to work a certain quantity at least in each year at a certain rate per ton, or to pay that sum of money as fixed rent, whether the coals were worked or not, was held to be an absolute covenant as to the fixed rent, without any implied condition as to the possibility of working the stipulated quantity of coal (r) . But where in a lease of clay at a rent of so much per ton, the lessee covenanted to raise an amount of not less than 1,000 tons of clay in each year of the term, jvithout the alternative of a fixed rent, the covenant was construed, with reference to the supposition by both parties, as impliedly conditional upon the existence of sufficient clay for its performance (s). So a contract for the sale and delivery of a certain quantity out of a specific crop of potatoes was held to be impliedly conditional upon the crop producing that quantity (^). — By a charterparty it was agreed that the ship should proceed to the port of load- ing or so near thereto as she could safely get and there load a full cargo, at the risk and expense of the freighter ; both parties were unaware that it was impossible for the ship to leave the port with a full cargo by reason of a bar at the entrance to the port ; it was held that the shipowner would have performed his part of the contract by offering the ship (k) Strickland t. Turner, 7 Ex. 208. (r) Bute t. Thompson, 13 M. kW. (o) Tritchardv. Merchants Zi/e Ass., 487; see Jefferys v. Fairs, L. E.. 4 3 C. B. N. S. 622 ; 27 L. J. C. P. 169. C. D. 448 ; 46 L. J. C. 113 ; ante, {p) Me Arthur, L. R. 14 C. D. p. 279. 603 ; 49 L. J. C. 556. (s) GUfford v. IFatts, L. E. 5 C. P. (?) Coates V. Collins, L. R. 7 Q,. B. 577 ; 40 L. J. C. P. 36. 144 ; 40 L. J. Q. B. 157. {t) Howell v. CoupUnd, L. R. 1 Q. B. D. 258 ; 43 L. J. Q. B. 201. IMPOSSIBITATY OF PERFORMANCE. 597 for loading outside the bar ; but that, as he entered the port Chap. in. and there loaded a cargo, the charterer had performed his part by providing the cargo, and the shipowner could not require him to re-ship it outside, nor could he claim the freight without carrying the cargo to the port of dis- charge (u). Where the impossibility is known to the promiser, but not impossi- known to the promisee, he must be taken to promise abso- known to lutely ; as where a married man promised to marry a woman, 0^°™'^™ who was then unaware of his being married (x). Where the charterer of a ship undertook to load " with the usual despatch of the port," which he knew he was then incapable of doing, he was held to be absolutely bound by his contract and responsible for delay («/) . — If the impossibility of performance Known to was known to the promisee, though not known to the pro- only, miser, the promise could not be accepted by the promisee with the expectation that it would be carried out and therefore would not be binding (s) . Where the performance of the promise becomes impossible Impossi- subsequently to the making of the contract, the question also sequent to depends upon the construction of the agreement with reference ^^*^''<'*- to the circumstances ; and the general rule is " that where a party has either expressly or impliedly undertaken without any qualification to do anything, and does not do it, he must make compensation in damages, though the performance was rendered impracticable by some unforeseen cause over which he had no control "(«). "Where the law creates a duty or charge, and the party is disabled to perform it without any default in him, there the law will excuse him," as expressed in the maxim, "lex non cogit ad impossibilia;" but "where the party by his own contract creates a duty or charge upon (u) General Steam Nav. v. Slipper, (y) Ashcroft v. Crow Colliery Co., 11 C. B. N. S. 493; 31 L. J. 0. P. L. K. 9 Q. B. 540; 43 L. J. Q. B. 185; Shield v. Wilkins, 5 Ex. 304. 194. See Mrd v. Coatesworih, L. K. 4 (z) See ante, pp. 281, 593 ; and see Q B. 133; post, p. 601. Cunningham v. Sunn, L. R. 3 C. P. (x) Wild V. Earris, 7 C. B. 999 ; D. 443 ; 48 L. J. C. P. 62. Milward v. Littlewood, 5 Ex. 775. (a) Per cur. Ford v. Cotesworth, L. R. 4 Q. B. 134. 598 THE MATTER OF CONTRACTS. Covenants to repair. Past III, himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have pro- vided against it by his contract "(6). A statute imposing a duty is construed in this respect like a contract, according to its terms in application to the subject (c). According to the above principle the liability imposed by common law upon a tenant for waste of the demised tenement is excused by inevitable accidents, as tempest, lightning, enemies, and the like {d). But if the tenant covenants to repair and to leave in repair the demised premises, and they are destroyed by a tempest or an accidental fire, he is bound to rebuild them (e) . And the same construction applies to an express condition annexed to an estate, that the tenant shall keep the premises in tenantable repair (/) . Hence it is usual in covenants to repair to make express exception of casualties by fire, tempest, and the like (g). — A reservation of rent or a covenant to pay rent is not suspended or excused by the acci- dental destruction of the demised premises ; though no rent issues out of the premises, and though neither tenant nor landlord is bound to restore them (h) . Nor in such case has the tenant any equitable claim to reKef against the liabiKty for the rent (i) ; nor any equitable claim to have a sum of money insured by the landlord applied in reinstating the demised premises (k). Hence it is usual in leases to provide expressly for suspension of the rent in the event of de- Covenant to pay- rent. (i) Fer cur. Fara dine V.Jane, Aleyn, 26; Willes, J., CHffoi-d v. Watts, L. E. 5 0. P. 586; see EUenborougli, C. J., Atkinson v. Hitchie, 10 East, 533 ; and see ante, p. 593. (c) Cairns, L. C, Siver Wear Co. v. Adamson, L. R. 2 Ap. Ca. 750 ; see Nitro- Phosphate Co. v. London ^- K. Docks, L. R. 9 C. D. 503. id) Co. Lit. 53 b, 283 a. (e) Walton v. Waterhouse, 2 Wms. Saund. 420 ; Chesterfield v. Bolton, Comyns, 627 ; Bullook v. IJommitt, 6 T. R. 650 ; Pym v. BlacJcbiirii, 3 Ves. 34. (/) Re SJiingley, 3 Mao. & G. 22V. (^) Per cur. Bullock v. Dommitt, supra; Broir/ie v. ICnill, 2 B. & B. 395 ; Manchester Warehouse Co. v. Can; L. R. 5 0. P. D. 507 ; 49 L. J. C. P. 809. (A) Paradine v. Jane, Aleyn, 27 ; Monk v. Cooper, 2 Ld. Raym. 1477 ; Bclfour V. Weston, 1 T. R. 310; Baker v. Holtzapffel, 4 Taunt. 45; Izon V. Gorton, 5 Bing. N. C. 501 ; Marshall v. SchoJUld, 52 L. J. Q. B. 58. (j) HoUzapfiel v. Baker, 18 "Ves. 115 ; Leeds v. Cheetham, 1 Sim. 146. {k) Leeds Y, Cheetham, supra; Lofft V. Dennis, 1 E. & E. 474 ; 28 L. J. Q. B. 168 ; see 14 Geo. 3, c. 78, s. 85 ; Ex p. Gorehj, 4 D. J. & S. 477 ; 34 L. J. B. 1. IMPOSSIBILITY OF PEKFOEMANCE. 599 stmotion of the demised premises by such casualties until the Chaj. III. premises are restored ; and the tenant is then liable only for an apportionment of the rent to the time of the fire or other casualty (/) . An express exception of casualties in a covenant to repair is not impliedly extended to a covenant to pay rent in the same lease [m) . And a covenant to repair is not im- pliedly limited in amount by a covenant of the tenant to insure to a certain amount (m) . Upon the same principle a covenant to build a bridge and P°y™,T* to keep it in repair for a certain time was held to bind the beoommg covenantor to rebuild the bridge, when it was broken down ' by an extraordinary flood (o). And a bond conditioned to build a bridge on a certain site and to maintain it for seven years was held to render the obligor liable in damages for a breach of the condition, although the maintenance of a bridge on the site was found to be impossible {p). So an insurance company who had elected to reinstate insured buildings which had been damaged by fire, were held bound to reinstate, though the buildings were taken down by the public authority as dangerous (g). Where a builder contracted to do certain works within a fixed time, including alterations which might be ordered under the contract, he was held liable for not completing within the time, although alterations ordered without allowiag an extension of time rendered performance within the time impossible (r). But a contract to build a bridge according to a specification drawn up by the engineer was construed as impliedly conditional upon the supposed practicability of the specification, though without a warranty of it ; consequently the contractor could not claim for work which failed because the specification was impracticable (s) . (l) Packer t. Gibbins, 1 Q. B. 421 ; (o) Brecknock JSfm. v. Pritchard, 6 Saner v. Bilton, L. R. 7 0. D. 815 ; T. R. 720 ; see Dyer, 33 a (10). 47 L J. C. 267 ; Manchester Ware- (p) Errington v. AtjnesUy, 2 Bro. house Co. v. Carr, L. R. 5 0. P. D. C. C. 341. 507 ; 49 L. J. C. P. 809. (?) Brown y. Royal Ins., 1 E. & E. (m) Soltzapffel v. BaTcer, 18 Ves. 853 ; 28 L. J. Q. B. 275 ; Erie, J., 115 ; see Weigally. Waters, 6 T. R. 488. ('') Jones v. St. John's Coll., L. R. («) Digby v. Atkimon, 4 Camp. 6 Q. B. 115 ; 40 L. J. Q. B. 80. 275. ' [s) Thorny. London, Mayor of, Xi.'R. 600 THE MATTER OF CONTRACTS. Providing and load- ing cargo. Part III. UjDon the Same principle under a cliarterparty in the Charter- Ordinary form the shipowner is hound to have his ship in pai les. seaworthy condition at the appointed place and time for loading; and he is not excused by contrary winds or had weather or any other such cause preventing him, unless ex- pressly excepted in the oharterparty (m) . The shipowner also undertakes to take his ship to the place appointed for unloading, and has no claim for delay, nor is demurrage chargeable, until the ship has reached the appointed place {x) . — The charterer undertakes to provide and load a cargo at the time and place appointed, and if prevented or delayed by an unforeseen cause is responsible to the shipovmer in damages (y) ; as where prevented loading by the dock authorities after due arrival of the vessel (s) ; or where no such cargo as stipulated is obtainable at the place (a) . A charterer having undertaken to provide a full cargo of coals is not excused by a strike of the colliers making it impossible to procure a cargo (6) ; nor by a severe frost closing up the canal to the colHery (c). But where both the parties knew that the colliery was not in work during repairs, it was held that there was an implied excep- Trnloading tion of delay caused by the repairs (d). — So with the obliga- liveryof tion of unloading and delivery of cargo, where a certain number of lay days is allowed and a further number of days on payment of a daily sum for demurrage, the charterer is taken cargo. 1 Ap. Ca. 120 ; 45 L. J. Ex. 487 ; see Inglis v. Buttery, L. K. 3 Ap. Ca. 552 ; Tharsis Sulphur Co. v. McElroy, L. E. 3 Ap. Ca. 1040. (m) Shul/rick y. Salmond, 3 Burr. 1637 ; Tapscott v. Balfour, L. E. 8 C. P. 46. [x) Parker v. Winlotv, 7 E. & B. 942 ; 27 L. J. Q. B. 49 ; Bastifell v. Llotjd, 1 H. & C. 338 ; 31 L. J. Ex. 413 ; DahlT. Nelson, L. R. 6 Ap. Oa. 38 ; 50 L. J. 0. 411 ; Allen v. Coltart, L. E. 11 Q. B. D. 782 ; 52 L. J. Q. B. 686 ; Tharsis Sulphur Co. v. Morel, (1891)2 Q. B. 647;61L. J. Q. B. 11. (;/) Per eur. Ford v. Cotesworth, L. E. 4 Q. B. 134 ; Jones v. Adam- son, L. E. 1 Ex. D. 60; 45 L. J. Ex. 64. (z) AshcroftY. Crow Coll. Co., L. E. 9Q. B. 540; 43 L. J. Q. B. 194; Davies v. McVeagh, L. E. 4 Ex. D. 265 ; 48 L. J. Ex. 686 ; Ptjman v. Dreyfus, L. E. 24 Q. B. D. 152 ; 59 L. J. Q. B. 113. {a) mils T. Sughrue, 15 M. & W. 253. (b) Adams-v. Royal Mail Co., 50.B. N. S. 492 ; 28 L. J. C. P. 33. (c) Kearan v. Pearson, 7 H. & N. 386 ; 31 L. J. Ex. 1 ; see Fenicick v. Schmah, L. E. 3 C. P. 313 ; 37 L. J. P. 78 ; niidson v. Edc, L. E. 3 Q. B. 412 ; 37 L. J. Q. B. 166 ; Eay v. Field, L. E. 10 Q. B. D. 241 ; 52 L. J. Q. B. 17 ; Grant v. Coverdale, L. E. 9 Ap. Ca. 470 ; 53 L. J. Q. B. 462. (d) Harris v. Dreesman, 9 Ex. 485 ; 23 L. J. Ex. 210. IMPOSSIBILITY OF PERFORMANCE. 601 to contract absolutely that the ship shall not be detained Chap, hi. beyond the fixed number of days ; and he becomes liable for damages if the ship is not discharged within the time, though the delay may be caused by a strike of workmen or by any other unforeseen event beyond his control ; unless he was prevented by some act of the shipowner (c). But if there is no time expressly fixed for unloading, the contract imports only that each party shall use reasonable despatch in per- forming his part, and neither party is responsible to the other for delay unless caused by his own default or negligence ; as where the delay was caused by war and a threatened bombard- ment of the port ; " the delay having happened without default on either side, and neither having undertaken by con- tract, express or implied, that there should be no delay, the loss must remain where it falls" (/). So where no time is fixed and the delay is caused by insufiicient accommodation and means of unloading at the port, over which the parties have no control (g) ; or where the delay is caused by a strike of workmen (h). Hence charterparties and contracts for the carriage of Exceptions goods by sea, which is peculiarly subject to inevitable aoci- parties, dents, are generally drawn with an express exceptive clause, the common form of which runs, more or less, as follows : — " Acts of Grod, restraints of princes and rulers, the Queen's enemies, fire, dangers and accidents of the seas, rivers, and navigation, always excepted" (*'). These exceptions are introduced for the benefit of the shipowner, and they so far excuse non-performance on his part; but they do not (e) Sandal! v. Lynch, 2 Camp. 352 ; Cunningham t. Dunn, L. E. 3 C. P. D. 12 East, 179 ; Thiis v. Btjers, L. R. 443 ; 48 L. J. C. P. 62. 1 Q. B. D. 249 ; 45 L. J. Q. B. (g) Fostlethwaite v. Freeland, L. R. 511; Budgett y. Binnington, (1891) 1 5 Ap. Ca. 599; 49 L. J. Ex. 630; Q. B. D. 35 ; 60 L. J. Q. B. 1 ; Wright v. New Zealand Co., L. R. 4 Harris v. Jacobs, L. R. 15 Q. B. D. Ex. D. 165. 247; 54 L. J. Q. B. 492; see Neilsen (A) Bich v. Sodoeanachi, (1891) 2 V. Wait, L. R. 16 Q. B. D. 67 ; 55 Q. B. 626 ; 61 L. J. Q. B. 42 ; see L. J. Q. B. 87; The Carisbrook, li. R. Castlegate Co. v. Sempsey, (1892) 1 15 Adm. 98 ; 59 L. J. Adm. 37. Q. B. 54. (/) Ford V. Cotesworth, L. R. 5 (i) ^ee Russell y. Niemann, \1 O.'Q. Q. B. 544 ; 39 L. J. Q. B. 188 ; N. S. 163 ; 34 L. J. C. P. 10. 602 THE MATTEE OF CONTEACTS. PaktIII. dispense with, performance on his part as a condition pre- cedent to charging the charterer. Though the shipowner may he delayed by excepted accidents in arriving at the port of loading without incurring liability ; yet if the delay is such as to render the stipulated voyage commercially impos- sible, the charterer is discharged {j ) . And if the arrival of the ship at an appointed day is made a condition precedent, delay discharges the charterer from providing a cargo {k) . — Exceptions Exceptions, according to the general rule, are construed strictly strictly. against the shipowner (/) ; and it lies upon him to prove the facts which entitle him to the benefit of the exception. Thus, an exception of loss by "thieves" is construed to apply only to thieves external to the ship ; and an exception of " damage," does not apply to an abstraction of the goods {m). — The exception of " dangers and accidents of the sea " was held to include an incursion of sea-water through a hole in the ship gnawed by rats, without neglect or default of the carrier («) ; but not damage done by rats gnawing the goods (o). It includes an incursion of sea-water through a breach caused by collision, unless the collision was caused by the negligent navigation of the ship {p) ; and an express exception of " collision " does not cover a coUision due to negligence in the carrier's ship {q). The exception of dangers of the sea also includes acts of piracy (r) ; and it includes (j) Jaekson-v. Union Ins., L. E. 10 60 L. J. A. 25. C. P. 125 ; 44 L. J. 0. P. 27 ; see (o) Zaveroni v. Druri/, 8 Ex. 166 ; Jones T. Holm, L. E. 2 Ex. 335 ; 36 22 L. J. Ex. 2 ; Kai/ v. TF/ieelei- L. J. Ex. 192. L. E. 2 C. P. 302. (k) SmithY.I>art,'L.'R.UQ,.B.'D. {p) TTilson v. Xantlio, L. E. 12 105 ; 64 L. J. Q. B. 121. Ap. Ca. 503 ; 56 L. J. Adm. 116 (I) Fer cur. Norman v. Binnington, overruling TToodley v. Miche/l, L E L. E. 25 Q. B. D. 477 ; 69 L. J. 11 Q. B. D. 47 ; 52 L. J. Q. B. 326 Q. B. 491. see Grill v. General Coll. Co., L. e! (ill) Taylor v. Liverpool Steam Co., 3 0. P. 476 ; 37 L. J. C. P. 206 L. E. 9 Q. B. 546 ; 43 L. J. Q. B. Garston v. Bickie, L. E. 18 Q. B.' 206 ; Steimnan v. Angler Line, (1891) 1 17 : 66 L. J. Q. B. 38. Q. B. 619 ; 60 L. J. Q. B. 425 ; see (y) Chartered Bk. v. Netherlands Tlirift T. Youle, L. E. 2 C. P. D. Co., L. E. 10 Q. B. D. 621: 52 L J 432 ; 46 L. J. C. P. 402 ; and see Q. B. 220. ante, p. 195. (r) Pickering v. Barkley, Styles, («) Hamilton v. Pandorf, L. E. 12 132; cited Byles, J., Sussell v. Nie- Ap. Ca. 518 ; 57 L. J. Q. B. 24 ; see mann, supra. The Cressington, (1891) 1 Ad. 152; IMPOSSIBILITY OF PERFORMANCE. 603 barratrous acts of the crew, as boring holes for the purpose Chap. hi. of scuttling the ship (.s). — The above exceptions apply only to the liabilities under the contract for the carriage of the goods ; and not to a liability for contribution to general average arising from the excepted accidents {t). They do not apply to liability for the stowage of the goods unless expressly so extended (m) ; nor to liability for accidents occur- ring during an unjustifiable deviation from the voyage (x) ; and negligence as the cause of the accidents or losses specified above must be excepted in express terms (y). The contract of carriers of goods within the realm is by implied the common law impliedly subject to the two exceptions of to liability "the act of Grod and of the Queen's enemies" ; in all other of earners, events the common carrier insures the safety of the goods, and in the case of loss or damage " the law presumes conclu- sively against the carrier, unless he shows it was done by the King's enemies, or by such act as could not happen by the intervention of man, as storms, lightning and tempests" (s). A common carrier by sea, or shipowner employing his ship as a general carrying ship, whether to places within or beyond the realm, is under the same legal liability ; so far as the liabiKty is not regulated by oharterparty or bill of lading or other express contract {a). A barge-owner or lighterman carrying goods in barges for hire incurs the same legal lia- bility (i). — A common carrier, as insurer of the safety of goods, is not liable for accidents caused by an inherent vice («) Tfie Ghasca, L. K. 4 Adm. 446; Ward, L. E. 20 Q. B. D. 475 ; 57 44 L. J. Adm. 17. L. J. Q. B. 379 ; see Fhelps v. Sill, {t) Schmidt v. Soyal Mail Co., 45 (1891) 1 Q. B. 605; 60 L. J. Q. B. L. J. Q. B. 646 ; Siirfon v. English, 382. L. R. 12 Q. B. D. 218 ; 53 L. J. [y) See Norman v. Binnington, Q. B. 133 ; Royal Exchange Go. v. L. E,. 25 Q. B. D. 475 ; 59 L. J. Dixon, L. B. 12 Ap. Ca. 11 ; 56 L. J. Q. B. 490. Q. B. 266 ; see Neltebohn v. Richter, (z) Forward v. Pittard, I T. R. 33 ; L. E. 18 Q. B. D. 63; 56 L. J. Q. B. per eur. Riley v. Some, 5 Bing. 220 ; 33. TFyld v. Piekford, 8 M. & W. 443. (ii) Sayn v. Ciilliford, L. R. 4 (a) Ntigent v. Smith, L. R. 1 0. P. D. 182 ; 48 L. J. C. P. 372. C. P. D. 423 ; 45 L. J. C. P. 697. («) Davis V. Garrett, 6 Bing. 716; (b) Dale v. Sail, 1 Wils. 281 Scaramanga v. Stamp, L. Pi.. 5 C. P. D. Liver Alkali Co. v. Johnson, L. E. 9 295 ; 49 L. J. 0. P. 674 ; leduc v. Ex. 338 ; 43 L. J. Ex. 216. 604 THE MATTER OF CONTRACTS. Paet III, or quality in the nature of the thing carried, without negli- gence or default on his part ; as for the loss of an animal which violently hreaks through the restraints which are ordi- narily and reasonahly sufficient for the carriage of similar animals (c) ; or for injury or death of an animal caused by its own fright or violence under ordinary and reasonable care {d). Nor is a common carrier liable for natural decay or deterioration of perishable goods during the carriage (e). — An express stipulation that the goods shall be carried " at the owner's risk " excepts the liabihty of the carrier as in- surer ; but not his liability for delay or negligence in the carriage and delivery of the goods (/) ; nor for detention of the goods or negligence in keeping them after the carriage is completed {g). A special contract for the carriage of fur- niture in vans, expressly undertaking " risk of breakages," was held impliedly to exclude the liabihty of an insurer, and to limit it to the express terms of the contract (A). Eaflway By the Railway and Canal Traffic Act, 1854, 17 & 18 TrafaoAot. Yict. c. 31, s. 7, railway and canal companies are rendered incapable of restricting their liability by any conditions except such as may be adjudged by a Court or judge to be just and reasonable, and which are made in the form of a special contract signed by the party (2). This enactment is extended to the traffic carried on by railway companies on steam vessels, by the Regulation of Railways Act, 1868, 31 & 32 Vict. c. 119, s. 16. Under the above section a con- dition substantially exempting the company from all liabihty is held not to be just and reasonable {h). But a special (c) Blower v. G. W. My., L. R. 7 shire Ey., L. R. 10 Q. B. 256 ; 44 C. P. 655 ; 41 L. J. C. P. 268. L. J. Q. B. 107 ; see Gordons. G. W. (d) Nugent v. Smith, L. E.. 1 C. P. St/., L. R. 8 Q. B. D. 44 ; 51 L. J. D. 423 ; 55 L. J. C. P. 697 ; see Q. B. 58. Kendall v. i. ^ S. W. My., L. R. 7 (A) Scaife v. Farrant, L. R. 10 Ex. Ex. 373 ; 41 L. J. Ex. 184 ; Gill v. 358 ; 44 L. J. Ex. 36. Manchester Ey. Go., L. R. 8 Q. B. (i) Peek v. North Staff. My., 10 H. 186 ; 42 L. J. Q. B. 89. L. 0. 473 ; 32 L. J. Q. B. 241. {e) "Willes, J., Bloicer v. G. W. Ey., (k) Peek v. North Staff. My., supra ; supra. -dshendon v. London ^- M. My., L. R. (/) EoUnson v. G. W. My., 35 L. J. 5 Ex. D. 190 ; Dickson r. G. N. Ey , C. P. 123; JJ'Arcv. JO. $■ N. TF. My., L. R. 18 Q. B. D. 176; 56 L. J L. R. 9 G. P. 325. Q. B. Ill ; Cutler v. N. London Ey., (g) Mitchell v. Lancashire ^ York- 19 Q. B. T>. 64 ; 56 L. J. Q. B. 648. IMPOSSlBtLlTY OF PERFOKMANCE. 605 contract with such a condition is not void, if at the time of Chap. hi. making it the company offers to carry the goods upon some practicable alternative condition which is just and reason- able (/). A carrier of passengers is liable only for negligence, and Carrier of not as an insurer of their safety ; and a stipulation that the passenger shall travel " at his own risk," excepts the liability for negligence (m). In the absence of such stipulation the carrier undertakes that due care shall be used in carrying the passenger throughout the whole journey whether by himself or others («). Also that the carriages and means of con- veyance are safe so far as skill and care can make them ; and in case of an accident, it lies upon him to prove that they were so (o). Also that the passenger shall be carried within the appointed time or within a reasonable time ; but he may stipulate against any guarantee of punctuality or any liability for delay (p). — A carrier of a passenger's luggage is under Passen- the same liability as a common carrier of goods, for loss or luggage. damage by negligence and also as an insurer of their safety ; and such goods are within the Railway and Canal Traffic Act, so that conditions restricting the liability must be just and reasonable {q) . But if the passenger retains his luggage under his own personal care and control, he cannot charge the carrier as insurer of its safety, nor with a loss caused by his own negligence, nor for any loss occurring without negli- gence or default on the part of the carrier (r). The lia- bility of the carrier continues only from the delivery of the (1) Manchester S. f I. My. v. Brown, Syman t. Nye, L. K. 6 Q. B. D. 8 Ap. Ca. 703 ; 53 L. J. Q. B. 124 ; 685. O. W. Ry. T. McCarthy, L. E. 12 (p) McCartanY. N. E.Ry.,5ilj. 3. Ap. Ca. 218 ; 56 L. J. P. C. 33. Q. B. 441. (m) McGawleyy. FurnessjRy.,'L.'R. {q) Cohort v. S. M. Ry., L. E. 2 8Q.B. 57; 42L. J. Q.B. 4; GallinY. Ex. D. 253; 46 L.J. Ex.417; Cutler L. ^ N. W. Ry., L. E. 10 Q. B. 212 ; t. N. LondonRy., L. E. 19 Q. B. D. 44 L. J. Q. B. 89 ; Ball t. N. E. 64 ; 56 L. J. Q. B. 648 ; Lovell\. L. Ry., L. E. 10 Q. B. 437 ; 44 L. J. C. # S. Ry., 45 L. J. Q. B. 476 ; see Q. B. 164 ; 666 Haigh v. Royal Mail Sudsony. Midland Ry., L. E. 4 Q.B. Co., 52 L. J. Q. B. 640. 366 ; 38 L. J. Q. B. 213. («) Thomas Y. Rhymney Ry.jJj.Ti,. ()■) Talley y. G. W. Ry., L. E. 6 6 Q. B. 266 ; 40 L. J. Q. B. 89. C. P. 44 ; 40 L. J. C. P. 9 ; Bergheim lo) Redhead y. Midland Ry., L. E. v. G. E. Ry., L. E. 3 C. P. D. 221 ; 4 Q. B. 379 ; 38 L. J. Q. B. 169 ; 47 L. J. C. P. 318. 606 THE MATTEE OF CONTRACTS. PaetIII. luggage to Mm or to an agent, as to a railway porter, for the purpose of the journey, until the completion of the journey (s). Implied exceptions of impossi- bility in contracts for per- sonal per- formances. Contracts of mar- riage. Sorae contracts, though expressed in ahsolute terms, are by the nature of the matter so obviously subject to certain events which render the performance impossible, that the parties are taken to have impliedly excepted them (t). " There is a class of contracts in -which a person binds himself to do something which requires to be performed by him in person; and such promises, e.g., promises to marry, or promises to serve for a certain time, are never in practice qualified by an express exception of the death of' the party ; and, therefore, in such cases, the contract is in terms broken if the promiser dies before fulfilment. Yet it was very early determined that if the performance is personal the executors are not liable." And " in those cases the only ground on which the parties or their executors can be excused from the con- sequences of the breach of the contract, is that from the nature of the contract, there is an implied condition of the continued existence of the life of the contractor" (if). Thus contracts to marry are impliedly conditional upon the con- tinued existence of the parties, and are put an end to by the death of either ; and no action wiU. lie by or against the executor of a deceased party for a breach of promise com- mitted before the death ; except, it is said, for special damage accrued from the breach independent of the loss of mar- riage («). A plea to an action for breach of promise to marry, that the defendant after making the promise became afiiicted with a disease vfhich rendered him incapable of marriage without danger to his life, was held to be no (s) Great Western Ey. v. Bunch, L. R. 13 Ap. Ca. 31 ; 57 L. J. Q. B. 361 ; see Cutler v. North London JRi/., supra ; ITodklnson v. London S; N. }V. Ry. , L. E. 14 Q. B. D. 228. [t) Ler cur. Baibj v. L)e Crcspif/ny, L. R. 4 Q. B. 185 ■; 38 L. J. Q. B. 102 ; Jessel, M. R., Mo Arthur, L. R. 14 C. D. 608; 49 L. J. C. 558. (m) Per cur. Taylor v. Caldwell, 3 B. & S. 835 ; 32 L. J. Q. B. 1G7, citing Llyde v. Dean of JJ'indsor, Cro. Eliz. 652. (:r) Chamberlain v. Williamson, 2 M. & S. 408 ; Finlay v. Chirnen, L. R. 20 Q. B. D. 494; 67 L. j. Q. B. -HI ; post, p. 1083. IMPOSSIBILITY OF PERFORMANCE. 607 defence, on the ground that it did not disclose such an im- Chap, hi. possibility of performance as could be impliedly excepted from the contract (y) .^Contracts for personal services, are Contracts generally taken as subject to the implied condition of the parties continuing alive and in sufficient health to perform and receive the service respectively (s) . Thus the covenant in an indenture of apprenticeship that the apprentice shall remain and serve during the term, though in terms absolute and unconditional, is impliedly conditional upon his con- tinuing in such a state of health to be capable of rendering the service, and excepts illness which renders performance impossible (a) . And the covenant of the master to maintain and teach is similarly put an end to by the death of the master (b) ; unless it is expressly extended to his executors carrying on the same trade or business (c). — The engagement of a dramatic or musical performer for an appointed day impliedly excepts incapacity caused by illness {d). And if the incapacity is such as to produce a substantial failure of consideration it would also operate in discharge of the employer (c) . A contract with a farm bailiff, expressed to be determinable by six months' notice or payment of six months' wages, was construed with the implied condition of both parties living to perform it, so as to be dissolved by the death of the employer, without further liability (/) . The contract of a parent with a schoolmaster not to remove his child from school without- notice is subject to the implied condition of the child continuing in a state of health proper for remaining at school {g) . — Upon the same principle a Contracts general contract of partnership is dissolved by the death of sMp^ (y) Sail v. Wright, E. B. & E. (c) Oooper v. Simmons, 7 H. & N. 765 ; 29 L. J. Q. B. 43 ; so heldin 707 ; 31 L. J. M. 138. the Court of Appeal by the majority (d) Eobinson v. Davison, L. E. 6 of four judges against three. Ex. 269 ; 40 L. J. Ex. 172. (z) Fer cur. Mrrow V.Wilson, li.'R. {e) Cuckson v. Stones, 1 B. & E. 4 C. P. 746 ; 38 L. J. C. P. 326 ; 248 ; 28 L. J. Q. B. 25 ; Poussard v. Stubbs v. Holywell Ey., L. R. 2 Ex. Spiers, L. E. 1 Q. B. D. 410; 45 311 ; 36 L. J. Ex. 166. li. J. a B. 621. (a) Boast v. Firth, L. E. 4 0. P. 1 ; (/) Farrow v. Wilson, L. R. 4 C. 38 L. J. 0. P. 1. P- 744 ; 38 L. J. C. P. 326. (b) Whincup T. Hughes, L. R. 6 (g) Simeon v. Watson, 46 L. J. C. P. C. P. 78; 40 L. J. 0. P. 104. 679. 608 THE MATTER OF CONTRACTS. Pabt III, one of the partners, and though it was contracted for a fixed term (A). The contracts of a partnership with third parties subsisting at the time of the death, being joint contracts, survive at law to the other partners ; but the interest of the deceased partner being several in equity, passes to his exe- cutor («'). A contract to serve a firm of partners in the partnership business is impliedly subject to the continuance of the partnership, and is therefore discharged by the death of one of the partners, which puts an end to the partner- ship (/c). Contracts Contracts relating to specific things are in general subject specific to the implied condition of the continued existence of the things, without which the performance is impossible. " The authorities establish the principle that, where from the nature of the contract it appears that the parties must from the beginning have known that it could not be fulfilled, unless when the time for the fulfilment of the contract arrived some particular specified thing continued to exist, so that when entering into the contract they must have contemplated such continued existence as the foundation of what was to be done ; then, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case before breach the contract becomes impossible from the perishing of the thing without the default of the contractor "(^). Where a contract was made for giving public entertainments at a music haU, upon the terms of the one party providing the use of the hall and certain other requisites, and the other party taking the entrance money and paying over a fixed sum daily, the con- tract was taken to be impliedly conditional upon the continued existence of the hall, and the hall being destroyed by an accidental fire, both parties were thenceforth discharged from (A) Holmes. Sammond, L. R. 7 Ex. pp. 374, 376. 218 ; -tl L. J. Ex. 157 ; see tie Part- (k) Tashr \. Shepherd, 6 H. & N. nership Act, 1890, e. 33. 675 ; 30 L. J. Ex. 207 ; ante, p. 406. (i) M'Clcan v. Kciiiiard, L. R. 9 {I) I'lr cur. Tiiiiicrr. Ca!du-el!, 3B. Ch. 336 ; 43 L. J. C. 323 ; see ante, & S. 838 ; 32 L. J. Q. B. 166. IMPOSSIBILITY OF PERFORMANCE. 609 further performance (m) . Where a contract was made for the Chap. hi. erection of machinery upon the premises of one of the parties, to be paid for on completion, and in the course of the work the premises were destroyed by fire ; it was held that both parties were excused from further performance, and no liability accrued on either side (n) . So with a contract for the construc- tion and fitting of engines for a ship then on a voyage to be paid for by instalments, under which the work was commenced and payments made accordingly, but before completion the ship was lost at sea ; it was held that both parties were dis- charged from further performance ; that the owner of the ship acquired no property in the unfinished work and materials ; nor any claim to recover instalments paid as upon failure of con- sideration (o). — Upon the same principle upon a sale of goods, saie of if the property has passed to the buyer and the goods are ^°° ' destroyed or perish without default of the seller before de- livery, the loss falls upon the buyer, and the delivery having become impossible is excused ; nor can the buyer in such case claim a return of the price {p). The risk of loss presump- tively rests with the owner; and if the contract expressly provides that the risk until delivery shall lie upon one or other of the parties, the property will presumptively accompany the risk (q) . The same principle applies to the sale of a house, which is destroyed by an accidental fire after the purchaser has accepted the title (r). Upon this principle contracts of bailment, as for the hire Contracts of goods, or for work to be done upon goods, involving the ment. obligation to re-deliver the goods upon the determination of the bailment are presumptively subject to the implied con- dition of the continued existence of the goods bailed ; and if they perish without any default in the bailee, so that the (?«) Taylor v. Caldwell, supra; see (p) Rugg v. Minett, 11 East, 210. Turner Tf. Goldsmith, (1891) 1 Q. B. (?) Castle ^ . Flay ford, L. B. 7 Ex. 544 ; 60 L. J. Q. B. 247. 91 ; 41 L. J. Ex. 44 ; Martineau v. {n\ Appleby v. Myers, L. B. 2 0. P. Kitching, L. R. 7 Q. B. 436 ; 41 L. J. 651 ; 36 L. J. C. P. 331 ; ante, 227. p. 50. ()■) Paine v. Meller, Ves. 349 ; see (o) Anglo-Egyptian Nail. Co. v. Edwards v. TFest, L. R. 7 C. D. 858 ; Rennie, L. B. 10 C. P. 271 ; 44 L. J. 47 L. J. C. 463. C. P. 130 ; S. 0. L. B. 10 0. P. 571. L. R R 610 THE MATTER OF CONTRACTS. Paet III. re- delivery becomes impossible, be is excused : as expressed in tbe maxim, res perit dotnino is) . As wbere a horse bad been delivered to a person under a promise to re-d^liver it upon request, and the horse died before any request made {t). So if a horse is delivered to a proposed buyer, upon sale or return, with a certain time allowed for trial, and the horse dies pending the trial from no fault of the buyer, the loss falls upon the seller, as being the owner («) . And if the bujer of a horse stipulates for the right to return it in the case of a breach of warranty, his right to return it for breach of warranty is not affected by an accident happening to it duriag his possession, caused by a fall or by taking fright without any default on his part(a;). But the hirer of a horse and carriage was held liable to the owner for damage done to them during the hiring by an act of his servant, though the act was beyond the scope of the service, and therefore an act for which Negligence the master was not personally responsible (y) . — A bailee or depositary of goods is not in general liable as an insurer, but only for loss or damage caused by negligence : as a ware- houseman or wharfinger (a) ; or a carrier who has completed the carriage, and continues to hold the goods only as a ware- houseman, though he retains a lien upon the goods for the carriage {a) ; or a banker with whom goods and securities are deposited for safe keeping (b) ; or an innkeeper (c) ; or a con- tractor for the removal of household furniture {d). But by custom of trade in the City of London a wharfinger is in the same position as a common carrier as to insuring the safety of goods deposited (c) . (s) Jones on Bailments, 4tli ed. 2 Q. B. 413 ; 60 L. J. Q. B. 676. 118 ; see Bayne v. Walker, 3 Dow, (s) Coggs v. Bernard, Ld. Raym 238 ; Paine v. Meller, 6 Ves. 352 ; 909 ; 1 Smith's L. C. 9th ed. 201. Claridgey. 8. Staffs. Tram. Co., (1892) (a) Chapman v. G. IF. Ry., L. R. W. N. 12. 6 Q. B. D. 278 ; 49 L. J. Q. B. 420 ; (t) Williams v. Lloyd, W. Jones, Wcstfield v. G. W. By., 52 L. J. 179; per cur. Taylor y. Calduell, supra. Q. B. 276. {«) Elphiclc V. Barnes, L. R. 5 0. lb) Gibbin v. MeMtillcn, L. R. 2 P. D. 321 ; 49 L. J. C. P. 698. P. 0. 317. [x] Head V. Tattcrsall, L. R. 7 Ex. (c) See ante, p. 170. 7 ; 41 L. J. Ex. 4 ; see Chapman v. (d) Scaifev. Farrant, L. R. 10 Ex Withers, L. R. 20 Q. B. D. 824 ; 67 358 ; 44 L. J. Ex. 36. L. J. Q. B. 457. ((.) See North British Ins. y. Londmi [y] Coupe Co. ,. Maddiek, (1891) i"«s., 6 C. D. 569 ; 46 L. J. C. 637. IMPOSSIBILITY OF PERFORMANCE. 611 Impossibility of performance caused by an act of a party to Chap. III. tbe contract involves different considerations. " It is a clear impossi- principle of law that if by any act of one of the parties the caused by performance of a contract is rendered impossible, then the p^'^les other side may, if they choose, rescind the contract ; and it appears sufficient if the contract cannot be performed in the manner stipulated, though it may be performed in some other manner not very different" (/). — " Where the condition of a impossi- bond is possible at the time of making it, and before the caused by same can be performed, becomes impossible by the act of the P™""^^^- obligee, there the obligation is saved " {g). Under a con- tract to complete building or other v/orks by a fixed day, with penalties for delay, no claim can be made for penalties in respect of delays caused by the default or interference of the employer {h) ; as where the delay was caused by not provid- ing the plans required for building work (i) ; or where alte- rations were ordered which rendered completion within the time impossible (/c). An act of the promiser which renders performance impos- impossi- sible, while it dispenses with the performance of all condi- caused tions precedent on the other part, constitutes at once a breach p^^^^ser. of contract (/) . Where a publisher engaged an author to write a treatise for a periodical publication, and before completion of the treatise, abandoned the publication, the author was held excused from further writing, as it had become impos- sible to publish it in the manner stipulated ; and he was held entitled to claim remuneration for the part already written (ni). Where an incoming tenant agreed to buy the straw upon a farm at a price to be fixed by valuation, and then consumed the straw before a valuation could be made and so rendered it impossible, he was held liable to pay the value assessed by (f) Mellish, L. J., Pa«a»!« 3VZ. V. (k) Wesiwood'v. Secretary for India. Indiarubber Tel., L. B. 10 Ch. 532. 11 "W. E. 261 ; 7 L. T. N. S. 736 {g) Co. Lit. 206 a. ThornhillY. Neats, 8 C. B. N. S. 831 . (h) Holme v. Guppy, 3 M. & W. see Jones v. St. John's Coll., L. K. 6 387 ; Thornhill y. Neats, 8 C. B. N. S. Q. B. 115 ; 40 L. J. Q. B. 80 ; ante, 831 ; Sussell v. Bandiera, 13 C. B. p. 599. N. S. 149 ; 32 L. J. C. P. 68. (I) See ante, p. 580. (i) Soberts v. Bury Oommiss., L. R. (m) Planchey. Colhmn, 8 Bing. 14 ; 4 0. P. 310 ; 38 L. J. 0. P. 367. ante, p. 46. R R 612 THE MATTER OF CONTRACTS. Paet III, a jury (m). Upon the sale of a business to be paid for by instalments dependent in amount upon the profits, it was held to be an implied undertaking by the buyer to carry on the business, and that discontinuing it so as to render it im- possible to ascertain the price was a breach of the contract («) ; but such a contract may be made expressly conditional upon the continuation of the business (o). — So with bonds, "when a condition becomes impossible by the act of the obligor, such impossibility forms no answer to an action on the bond" {p). Impossi- A promise is excused by a supervening impossibility caused caused by act of law. " No contract can be carried into effect, which ^ '™^' was originally made contrary to the provisions of law; or which, being made consistently with the rules of law at the time, has become illegal in virtue of some subsequent law" (q). Persons in general are taken to contract with reference to the law existing at the time ; and " on this prin- ciple it has been held that an impossibility arising from an Act of the Legislature subsequent to the contract, discharges the contractor from liability" (r). Thus where land is let subject to a covenant or condition against assignment without the licence of the lessor, and the land is afterwards taken under the compulsory powers of the Lands Clauses Act, the covenant or condition is discharged by the operation of the Act (s). So covenants restrictive of the use of land, as regards building and the like, are discharged by a railway company subsequently taking the land under compulsory powers and building a station upon it (t) . A covenant to repair is dis- (m) Clarke v. Westrope, 18 C. B. 107. 765 ; 25 L. J. C. P. 287. (q) Fer cur. Atkinson v. Ritchie, 10 (n) Mclntyre v. Belcher, 14 C. B. East, 534. N. S. 654 ; 32 L. J. 0. P. 254 ; Tele- (r) Per cur. BaiUyY. Be Crespigny, graph Despatch Co. v. M'Lean, L. R. L. R. 4 Q. B. 186 ; 38 L. J. Q. B. 8 Ch. 658 ; ante, p. 197 ; and see 102 ; Newington L. B. v. Cottingham Samlyn v. Wood, (1891) 2 Q. B. 488 ; L. B., L. R. 12 C. D. 731 ; 48 L. J. 60 L. J. Q. B. 734. C. 226 ; see ante, p. 606 ; post, p. 679. (o) Beswick v. Swindells, 3 A. & E. (s) Slippei- v. Tottenham Junet. Ey., 868. L. R. 4Eq. 112; 36L. J. C. 841. {p) Fer cur. Beswick v. Swindells, [t) Ba'ilii v. De Crespigny, L R 4 3 A. & E. 883 ; 8 Co. 82 b, Vynior's Q. B. ISO; 38 L. J. Q. B. 98 ; see case; see French V. Campbell, 2 a. Bi. Tcndring Xlnion y. Dowton (189'l) 3 163 ; Warburton v. Storr, 4 B. & C. Ch. 265 ; 61 L. J. C. 82. IMPOSSIBILITY OF PERFORMANCE. 613 charged under like circumstances; but the lessee remains Cmr. in. liable for breaches committed before the compulsory taking of the premises (m) . And where land is let for a particular purpose, a covenant for quiet enjoyment does not warrant against future legislative interference with the use ; as a statutory prohibition of storing cartridges upon the pre- mises (a;). The Corporation of London, as Conservators of the Thames, having borrowed money upon bonds conditioned for payment out of the toUs chargeable under their statutory powers, by a subsequent Act the right of the Corporation to receive and apply the tolls was taken away and vested in a new body of conservators ; it was held that, the condition having been rendered impossible by Act of Parliament, the bonds were discharged (y). " The force of a declaration of war has been held equal to Acts of Stat© that of an Act of Parliament prohibiting intercourse with the enemy except by the Queen's licence. As an act of state done by virtue of the prerogative, such a declaration carries with it all the force of law" (s). Therefore a charterparty Deciara- for loading at a foreign port is discharged by a declaration of war, rendering it impossible to ship the cargo without an illegal act of trading with the enemy («). And an insurance of foreign ships or goods is discharged by a declaration of war between the countries of the insurer and insured, pending the continuance of hostilities (b). — A temporary embargo im- Emtargo posed upon shipping by an Order in Council operates as a ping. legal interruption of the voyage and of the contracts relating to it, and excuses all liabilities during its continuance ; but the contract is restored upon removal of the embargo (c). If it lasts so long, or is imposed under such circumstances, as in («) Mills T. Hast London Union, {a) SspositoY. Bowden, supra ; Eeid L. B. 8 0. P. 79 ; 41 L. J. C. P. 46. v. Soskins, 6 E. & B. 253 ; 26 L. J. (x) Newhy t. Sharpe, L. B. 8 C. D. Q. B. 6 ; see Clementson v. Blessig, 11 39 ; 47 L. J. C. 617. Ex. 135. {y) Brown v. Mayor of London, 9 {b) Brandony. Gurlinff, iEaat, ilO ; C. 'B. N. S. 726 ; 31 L. J. 0. P. 280 ; see post, p. 648. see Davis t. Cary, 15 Q. B. 418. (c) Sadley v. Clarke, 8 T. E. 259 ; (s) Per cur. JSsposito v. Bowden, 7 see Touteng v. Hubbard, 3 B. & P. E. &B. 763; 27L. J. Q. B. 21. 291. 614 THE MATTER OF CONTRACTS. Paet III, fact to frustrate the object of the voyage, it would be held to discharge the contract altogether (d). Impossi- An impossibility caused by foreign law, or by the act of a caused by foreign state, does not discharge a contract in this country. or^s^tate.'^^ Upon a sale of goods to be shipped from a foreign port, it is no defence to an action for not delivering the goods, that a war broke out in the country which rendered the shipment impossible, the contract being construed according to the law of this country (e) . So in an action upon a charterparty for not providing a cargo at a foreign port, it is no defence that the charterer was prevented by the government at that port prohibiting the exportation of the intended goods (/) ; or that the authorities at the port prohibited all public intercourse in consequence of the prevalence of an infectious disorder (y) . " If the performance of the covenant had been rendered tmlawful by the government of this country the contract would have been dissolved on both sides, and the defendant 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 from per- forming it, but must answer in damages" (A). — ^Upon the same principle a shipowner who has contracted absolutely to carry and deliver goods is not excused by the goods being seized at an intermediate port, as contraband by the law of that country («'). Where a cargo of petroleum was shipped under a bill of lading for delivery at a foreign port, stipu- lating that it should be taken out by the shipper within a fixed time ; it was held that the freight was earned upon arrival ready for delivery, and that the shipper was not (d) Geipel v. Smith, L. R. 7 Q. B. n. (a) ; Sjo&rds v. Luscomie, 16 East, 404 ; 41 L. J. Q. B. 153 ; Jackson t. 201. Union Ins., L. R. 10 C. P. 125 ; 44 (g) Barker v. B:od<)son, 3 M. & S. L. J. C. P. 27. 267. (e) Jacobs t. Credit Zyonnais, L. R. {h) EUenborough, C. J., Barker v. 12 Q. B. D. 589 ; 53 L. J. Q. B. Sodgson, supra. 156; see Splidtv.Seath, 2 Gsim-p. 51. (t) Spenee v. Chodwick, 10 ft. B. (/) Blight V. Page, 3 B. & P. 295, 517. IMPOSSIBILITY OF PERFORMANCE. 615 excused from taking the cargo and paying the freight by Chap. III. reason of a prohibition at the port against landing such cargo (k). But if the foreign power produces a disability in both parties to perform their mutually dependent ob- ligations ; as readiness and ability to provide and to take in cargo, or to deliver and to receive cargo, neither party can maintain an action against the other {I). And in a charter- party of a foreign ship there is an implied exception of what is prohibited by the law of the state to which the ship belongs, as for example discharging at an enemy's port; and consequently war declared between that state and that of the port of discharge excuses the contract [m). Hence it is usual in charterparties to make the express Exception exception (amongst other things) of "restraint of princes and "ti-aint'of rulers," which includes any public act of a state or govern- rulers." ment, whether in peace or war, restraining the performance ; as an order of the local public authorities of a port, capture by the public forces, an embargo upon shipping, a blockade of a port, or a siege of a town (»). Exceptions of this kind are presumptively introduced for the benefit of the ship- owner (o) ; but an exception, " in the event of war, &c. preventing loading, this charterparty to be cancelled " was construed to render the .charterparty void in the events specified, and not merely voidable at the option of either party ( ^j) . A restraint within the exception excuses delay in sailing so long as it continues ; and if in fact it continues so long as to frustrate the object of the voyage it may dis- charge the contract altogether (q) . And a reasonable appre- hension of restraint justifies delaying the voyage {>•). Under a bill of lading for the delivery of goods " dangers of the seas {/c) Cargo ex Argos, Ii. K. 5 P. C. (o) See ante, p. 601. 134. ( p) Adamson t. Newcasth Steam Co., {I) FordY. Cotesworth, L. R. 5 Q. B. L. R. 4 Q. B. D. 462 ; 48 L. J. Q. B. 544 ; 39 L. J. Q. B. 188 ; Cunningham 670. V. Dunn, Ii. R. 3 C. P. D. 443 ; 48 (q) Oeipel v. Smith, L. R. 7 Q. B. L. J. C. P. 62 ; see ante, p. 601. 404; 41 L. J. Q. B. 153; ante, p. 614. (m) The Teutonia, L. B. 4 P. 0. (r) The San Roman, L. R. 5 P. C. 171 ; 41 L. J. Adm. 57. 301 ; 42 L. J. Adm. 46 ; The Express, In) Sodocanachi v. Slliott, L. E. 8 41 L. J. Adm. 79 : see Atkinson v. C. P. 649 ; 42 L. J. C. P. 217 ; see Silchic, 10 East, 530. n/ite, p. 601. 616 THE MATTEE OF CONTRACTS. Pact III, only excepted," a blockade of the port of discharge and risk of capture by an enemy were held not to be within the ex- ception (s). An exception in a charterparty or bill of lading of " the king's enemies " means the enemies of the sovereign of the shipowner (if) . — Similar exceptions may be made in policies of marine insurance, as by the phrase "warranted free from capture and seizure "(m). In an insurance of a foreign ship there is always an implied exception of capture by the government of the country of the insurer ; because an insurance against such loss would be illegal (x) . But there is no similar implied exception of acts of the government of the country of the insured (y). Impossi- bility of one of alternative promises. Subse- quent im- possibility. If a person promises to do one of two things in the alter- native, and at the time of making the contract one of them is impossible, as a general rule, he must perform that which is possible. Where a bond was given upon the discharge of a debtor from execution, conditioned to pay a sum of money, or in default of payment to surrender the debtor in execution ; it was held that as the alternative of surrendering a debtor in execution who had once been discharged was legally impos- sible, the obligor could satisfy the condition by payment only (s) . 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(ffl). — Where both alternatives are possible at the time of making the contract, and one of them subsequently be- comes impossible, " it is improper to lay down any universal proposition either way ; but the principle to be applied in each case is that it must depend on the intention of the (s) The Patria, L. E,. 3 Adm. 436; 41 L. J. Adm. 23 ; Russell v. Nie- mann, 17 G. B. N. S. 163; 34 L. J. 0. P. 10. (j) Eussell V. Niemann, supra. \u) Powell V. Hyde, 5 E. & B. 607; 25 L. J. Q. B. 65 ; ICleinwort v. Shepard, 1 E. & E. 447; 28 L. J. Q. B. 147 ; Conj v. Burr, L. R. 8 Ap. Ca. 393 ; 52 L. J. Q. B. 657 ; Johnston v. Hogg, L. E. 10 Q. B. D. 432 ; 52 L. J. Q. B. 343. [x) Furtado v. Rodgers, 3 B. & P. 191 ; Brandon v. Curling, 4 East, 410 ; see post, p. 648. («/) Aubert t. Gray, 3 B. & S. 163; 32 L. J. Q. B. 50 ; overruling Con- way V. Gray, 10 East, 536. (z) Da Cobta v. Simmonds, 1 B. & P. 242 ; see ante, p. 586. (a) Simmonds v. Stoaine, 1 Taunt. 549. IMPOSSIBILITY OF PERFOUMANCB. 617 parties, to be colleoted from the nature and circumstances of Csap. hi. the transaction and the terms of the instrument ; and that if the Court is satisfied that the intention of the parties was that one of them should do a certain thing, hut he is allowed at his option to do it in one or other of two modes, and one of these modes becomes impossible by the act of Grod, he is still bound to perform it in the other mode" (b). Under a policy of fire insurance whereby " the company may reinstate property damaged or destroyed instead of paying the amount of the loss or damage," if it becomes impossible to reinstate, the insurer must pay (c) . In a lease of a coal mine the lessee covenanted to raise a stated quantity in each year and pay a royalty upon it, or to pay the same amount of money as a fixed rent, it was held that he must continue to pay the rent during the term, though it became impossible to raise the coal because the mine was worked out (<;?). Where a bond was given conditioned either to make a lease for life to the obligee by a certain day or to pay a sum of money, and the obligee died before the day; it was adjudged that his exe- cutors should have the money (e). A bond given upon the marriage of the obligee was conditioned that the obligor should pay to the obligee, or her children by the marriage, a sum of money in a certain event ; the husband having died leaving no child before the time for payment, it was held that, construing the condition according to the intention of the parties, the bond was not discharged (/). A covenant to make a certain disposition of property by CoYenant deed, or by will, presumptively gives an option during life ; by dee™* and it may be discharged by the death of parties rendering ""^ '"'^^• the disposition by will inoperative. A father upon the marriage of his daughter covenanted with the husband by deed or will to give to his daughter an equal share with (b) Eandersley, V.-C, BarJcworth Royal Ins., 1 E. & E. 853; 28 L. J. V. Toung, 4 Drew. 25 ; 26 L. J. C. Q. B. 275 ; ante, p. 588. 163 ; see Laughter's case, 5 Co. 21 b ; {d) Bute v. Thompson, ISM. & "W. ante p. 587 ; explained in Studhohne 487 ; ante, p. 596. V. Mandell, 1 Ld. Haym. 279; see («) ^«ot!., Salt. 170; Treby, 0. J., ante p. 588. Sludholme v. Mandell, supra. Ic) Anderson v. Commercial Ass., (/) Drummond v. Bolton, Sayer, 55 L. J. Q. B. 116; see Brown v. 243. 618 THE MATTER OF CONTRACTS. Part III. liis other children of all the estate of which he should die possessed, and the daughter died in the lifetime of the father without issue ; it was held that the father, having the alter- native of the will, was discharged from the covenant [g). And where under like circumstances the covenant was by deed or will to make a settlement of property in certain stated terms for the benefit of the wife and children of the marriage, the covenant was held to be satisfied by a will in the required terms, though the interest of the children lapsed by their death in the lifetime of the testator {fi). A father upon the marriage of his daughter promised the intended 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 the father leaving children of the marriage, and the father died bequeathing his property to two surviving daughters ; it was held that the promise was alternative as capable of being performed in two ways, viz., either by bequeathing an equal share by will, or by leaving his children to share equally upon intestacy ; that the death of the daughter in his lifetime rendered the latter way impos- sible, but did not render the former impossible, because under the Wills Act, 1 Yict. c. 26, s. 3, the bequest of a share by will would not lapse in the event of the death of the daughter leaving children ; that " it was manifestly the intention of the parties that in one way or the other the daughter should have an equal share of the testator's property, and if the testator was prevented even by the act of God from perform- ing his obligation in one way, he was bound to perform it in the other way which was possible " (i). Impossibility of performance may affect the consideration A pro- Considera- tion impos- _ 111 11 • 1 • . Bible oi 01 a contract, where the consideration is executory, ance""™" rmsQ which is impossible of performance at the time of making it, in fact or in law, cannot form a valid consideration (A-) . ((?) Jones T. Sow, 9 C. B. 1 ; 7 (i) Barkworth v. Toung, i Drew. Hare, 267. 1 ; 26 L. J. C. 153. (A) Bnohnan's Trust, L. E. 6 Ch. (*) See Sarvey v. Gibbons; Nerot 182 ; 39 L. J. C. 138. v. Wallace, mte, p. 594. IMPOSSIBILITY OF PERFORMANCE. 619 A promise ■which is possible and valid at the time of making Chat. III. it is a sufEcient consideration, though it may subsequently Considera- become impossible. But in such case the mutual promises coming may be impliedly dependent, or conditional upon performance ™P°^^' ^• on each side ; and then the one promise would fail by reason of the non-performance of the other as a condition precedent, in the event of such performance becoming impossible (l) ; or the contract might be such as to import an implied exception of the circumstances of impossibility (w) . Where further performance is rendered impossible before completion, ques- tions may arise whether or not a new contract maybe implied from the acceptance of a part performance of the considera- tion on the one hand, or, on the other hand, for a return of money already paid for the consideration which fails ; upon the principles already stated respecting the formation of contracts (n). (l) See ante, p. 566. L. J. 0. P. 130 ; Appleby v. Mi/ers, (m) See ante, p. 606. L. R. 2 0. P. 651 ; 36 L. J. C. P. («) See ante, p. 50 ; Anglo- Egyptian 331 ; ante, p. 609 . Co. V. Eennie, L. E. 10 C. P. 271 ; ii 620 THE MATTER OF CONTRACTS. Ohaptbe IV. ILLEGALITY. PAOE Illegality at common law — by statute — by foreign law .... 621 Agreements illegally affecting government — corruption at elections 623 Sale of public offices — salaries and pensions — ecclesiastical benefices 624 Agreements affecting public justice' — commission of crimes — compounding offences and private injuries 626 Agreements in fraud of the bankrupt law 628 Maintenance and champerty 629 Agreements in restraint of trade 633 Combinations of workmen and employers 639 Statutory regulations of professions and trades 641 Trading with an enemy 647 Wagering and gaming contracts 649 Insurance without interest on ships — lives — fire 653 Agreements and conditions in restraint of marriage — for procuring marriage — illicit cohabitation 658 Separation deeds — custody of children 660 Agreements made for illegal purpose — participation in the illegal purpose 664 Agreements infraud of third parties — compositions in fraud of creditors 667 Effect of illegality in avoiding agreement — extrinsic evi- dence of illegahty 670 Money paid under executory illegal agreements — money paid under executed illegal agreement — exception of parties not in pari delicto 672 Effect of illegality in part of the consideration — in part of the promise 677 Effect of illegality supervening upon contract 679 Paet III. An agreement may involve some matter or purpose which is illegal, and therefore renders it void of legal effect as a con- tract. The illegality may be found in the matter of the consideration or of the promise as expressed in the agreement, or it may he found in the purpose to which the agreement, ILLEGALITY. 621 though legal in expression, is applied. — It is purposed here Chap, iv. to consider shortly the sources of illegality in general ; and to review the principal matters which have been held to avoid agreements upon the ground of illegality ; and then to treat of the effects of such avoidance upon the rights of the parties. A matter may be illegal at common law or by statute, illegality ^^ . . at common The common law prohibits generally whatever is contrary to law. public policy and morality, as defined by the decisions of the Courts. " Public policy requires that a contract to commit a crime, or to give a reward to another to commit a crime, is necessarily void. The decisions have gone further, and con- tracts to commit an immoral offence, or to give money or reward to another to commit an immoral offence, or to induce another to do something against the general rules of morahty, though far more indefinite than the previous class, have always been held to be void " (a) . But the mere good of the public is not a matter which the Court will consider as affecting a legal contract ; as where a railway company had covenanted not to build on certain land which they had purchased, it was held that they were not entitled to avoid their covenant and build an extension of the railway, merely for the reason that it was required for the convenience of the public (6). The statute law expresses commands and prohibitions in By statute, written terms, upon the construction of which it is to be deter- mined in each case whether an act is so far illegal that it cannot be made the subject of a contract. A statute imposing a penalty upon an act presumptively implies a prohibition, though, there are no prohibitory words ; and an agreement involving such act is void for illegality (c). But a statute may impose a penalty for a special and limited purpose only, as for the protection of the revenue, without intending any further prohibition ; and an agreement may then be valid, though involving an (a) Jessel, M. E., Printing Segis- SapAael v. Thames Valley My., L. R. Co. V. Sampson, L. E. 19 Eq. 2 Ch. 147 ; 36 L. J. C. 209. 465 ; 44 L. J. C. 705 ; see Griffiths v. (c) Holt, 0. J., Bartlett v. Vinor, Dudley, L. E. 9 Q. B. D. 357; 51 Garth. 252; Skinn. 322 ; ;o«r c«r. Co^e L. J. 0. 543 ; Davies v. Davies, L. E. v. Rowlands, 2 M. & "W. 157 ; Forster 36 C. D. 359 ; 56 L. J. C. 962. v. Taylor, 5 B. & Ad. 887 ; Re Cork (b) Lloyd T. London, C. # L. Ry., # Youghal Ry., L. R. 4 Ch. 748 ; 39 2 D. J. & S. 568 ; 34 L. J. C. 401 ; L. J. C. 277. law, 622 THE MArrER OF CONTRACTS. PaetIII. infringement of the statute. In such ease the question depends upon the construction of the statute, as to the re- stricted or general operation of the prohibition ; but if the words of the statute are clear, the purpose of the legislature is immaterial (d). On the other hand an act may be prohi- bited without any express penalty, and it cannot then be the subject of a valid contract (e). The phrase in a statute "it shall be lawful," taken literally, is permissive and enabling only, but the context and application may require it to be construed as obligatory (/). There is no distinction between malum prohibitum and malum in se as regards the effect of illegality upon an agreement ; " the Court is bound, in the administration of the law, to consider every act to be unlawful, which the law has prohibited to be done " (g). Foreign The Courts of this country admit actions upon foreign con- tracts for performances which are legal in this country; though they may not be legal in the foreign country ; as a contract made in America with a British shipowner to carry cattle to England, excepting all liability for negligence ; such exception being valid by English law, but not by American (h). But no action can be brought upon a foreign contract for a performance which is illegal here, though it may be legal by the foreign law (i) ; as a contract made abroad with a solicitor to transact business in this country upon terms which infringe the law of maintenance (J) ; or a foreign contract which in this country operates in unreasonable restraint of trade ; although no laws against such matters existed where the contracts were made {k). The Courts of this country admit actions upon contracts for performances abroad which are legal by the foreign law ; unless they are contrary to univer- {d) Wetherell v. Jones, 3 B. & Ad. & Aid. 183 ; Best, J., BmsUy v. 221 ; Smith v. Mawhood, 14 M. & W. Bignold, 5 B. & Aid. 341. 452 ; Bailey v. Sarris, 12 Q. B. 905 ; (A) Se Missouri Steam Co., L. E. 42 Xewis V. Bright, 4 E. & B. 917 ; see C. D. 321 ; 58 L. J. C. 721. Melliss T. Shirley L. B., L. E,. IB (i) Robinson \. Bland, 1 "W. Bl Q. B. D. 446 ; 55 L. J. Q. B. 143. 256 ; 2 Burr. 1077 : Turner, L. 1., (e) Bramwell, B., Couan v. Mil- Iloper. Hope, 8 D. M. & U. 731 -'26 l/tirn, L. R. 2 Ex. 233; 36 L. J. Ex. L. J. C. 417. 124. ij) Grell v. Levy, 16 C. B. N. S. (/) Julius V. Bp. of Oxford, L. R. 79. 5 Ap. Ca. 214 ; 49 L. J. Q. B. 577. {/■) Sousilhn v. Jtousillon, L E 14 {ff) Per cur. Cuimnn v. Brice, 3 B. C. D, 351 ; 49 L. J. C. 343. ILLEGALITY. 623 sally recognised principles of justice, or to express statutory Chap, iv. prohibition (l) ; as a contract for the sale and delivery of slaves in a foreign country where the possession and sale of slaves is legal ; except within the statutory prohibitions con- cerning slavery applying universally to British subjects [m). And actions upon foreign contracts are subject to the rules of procedure of the Courts of this country ; including the rules of evidence, and the statutes of limitation of actions (w). . Upon the ground of public policy any agreement tending Agree- to interfere with or unduly influence the legislature, or the affecting government, is illegal and void ; as a promise to a member of ^g^™" the legislature in consideration of his giving or withholding his vote upon a bill before parliament (o). But an agreement by the promoters of a railway bill with a landowner, who was also a member of the legislature, for payment of an agreed sum of money for the damage to his property by the proposed railway, in consideration of his withdrawing opposition to the bill, was held to be legal, because made in his private character of landowner only (p). — Any agreement involving Corruption bribery or undue influence at the election of members of par- tions. liament, or at an election of an officer of a municipal corpora- tion, or of any officer to be chosen by public election is illegal and void ; as a promise to a voter to pay his travelling expenses (q) , or to pay him for loss of time (r) , or a wager with a voter upon the result of an election (s), or the wilful omission of a name from the list of voters (t). These matters are for the most part defined by statute and visited with penalties («) . A promise to pay money in consideration of {Tj Halsbuiy, L. C, Re Missouri 27 L. J. Q. B. 449. Steam Co., supra; see ante, p. 110. {>•) Simpsons. Yeend, L. E. 4Q. B. {m) Santos v. lUidge, 8 C. B. N. S. 626 ; 38 L. J. Q. B. 313. 861 ; Madrazo r. miles, 3 B. & Aid. (s) Allen v. Seam, 1 T. E. 56. 363. (0 The Queen v. Ball, (1891) 1 («) See ante, pp. 176, 252 ; post, Q. B. 747 ; 60 L. J. M. 124. pp. 832, 999. («) The Corrupt Practices Preven- (o) Per car. Sowden v. Simpson, 10 tion Act, 1854, 17 & 18 Vict. c. 102 ; A. & E. 821. the Corrupt Practices (Municipal [p) Sowden v. Simpson, 9 CI. & P. Elections) Act, 1872, 35 & 36 Viet. 61 ; see Taylor v. Chichester ^ Mid- c. 60 ; the Illegal and Corrupt Prao- hurst Si/., L. E. 2 Ex. 386. tices Prevention Act, 1883, 46 & 47 (?) Cooper Y. Slade, 6 E. & B. 447 ; Vict. i;. 51. 624 THE MATTER OF CONTRACTS. Pabi III, abandoning a petition against the return of a member for bribery is illegal and void (y). Ajid a promise to pay the costs of an election petition, unless made by an elector or party interested («)- Sale of public offices. tion of public offices. The sale of public oflBces is illegal at common law, and is further prohibited in some cases by statute (y) . The sale of the command of a ship in the service of the Bast India Company, without the knowledge and approval of the com- pany, was held to be void, and no money or damages re- coverable under it (2). And the sale of a recommendation, nomination, or influence in procuring a public office {a) ; and an agreement to pay over the profits of the office in return for procuring it by such means is illegal and void (b). A bond given to secure payment of an annuity so long as the obligor should continue in an office, in consideration of the obligee procuring to him the appointment, was decreed to be delivered up (c) . — Also contracts for the resignation of public offices are illegal and void (d) ; as where the party resigning stipulates for a share of the emoluments from his successor (c) ; or a bond given by a junior officer of a re- giment to secure his contribution for buying out a senior officer (/). The purchase and sale of commissions, though contrary to the common and statute law, was sanctioned by the regulations of the army until cancelled by Royal "Warrant, upon the passing of the Eegulation of the Forces Act, 1871, by which an indemnity was given m respect of previous purchases and compensation to officers then holding (») Coppoclc y . Bower, 4 M. & "W. 361. {x) Wallis T. Portland, 3 Ves. 494 ; 8 Bro. P. C. 161. (2/) Co. Lit. 234 a; Kenyon, C. J., Blackford v. Preston, 8 T. E,. 92. See 5 & 6 Edw. 6, c. 16 ; 49 Geo. 3, o. 126 ; Chitty's Stat. tit. "Sale of Offices." (s) Blackford v. Preston, supra; Card V. Hope, 2 B. & C. 661 ; see Eiehardson v. Mellish, 2 Bing. 229 ; Thomson v. Thomson, 7 Ves. 470. (o) Banington v. Duchatel, 1 Bro. C. C. 124 ; Sopkinsv.Prescott, 4 C. B. 578 ; The Queen t. Gharrctic, 13 Q. B. 447. (4) Garforth v. Fcaroii, 1 H. El. 327. (c) Law V. Law, 3 P. "Wms. 391. (d) Graeme v. Wroagklon, 11 Ex. 146 ; 24 L. J. Ex. 26.5. (f) Parsons v. Thomson, 1 H. Bl. 322 ; Waldo v. Martin, 4 B. & C 319. (/) Graeme v. IVroughton, supra; Sijre V. Porbes, 12 0. B. N. S. 191. ILLKGALITY. 625 commissions (■) Wood v. Bownes, 18 Ves. 120; 883 ; Cotterell v. Jones, 11 C. B. 713; Strachan v. Brander, 1 Eden, 303. 21 L. J. 0. P. 2 ; Ram Coomar v. (s) James v. Kerr, L. R. 40 C. D. Chundcr, L. R. 2 Ap. Ca. 186. 449 ; 58 L. J. C. 355 ; see Sntley v. (n) Hilton v. Woods, L. R. 4 Eq. Hutley, L. R. 8 Q. B. 112 ; 42 L J 432 ; 36 L. J. C. 941 ; Elborough v. Q. B. 52. Ayres, L. R. 10 Eq. 367 ; 39 L. J. 0. {t) Ball v. WaruiicJc, 60 L. J. C. P 601. 382. ILLEGALITY. 631 procure evidence for the consideration of a money payment Chap. IV. has a direct and manifest tendency to pervert the course of justice " (u). But an agreement to supply information and evidence to prove the title to property, in consideration of having a share of the property upon coming into possession, their being no suit pending and no stipulation for main- taining a suit, is not illegal (»). And an advertisement offering a reward for evidence in proof of a particular fact, is not illegal (y). Upon the same principle the purchase of a mere right of Purchase litigation is illegal and void : as the right to rectify or set utigftion™ aside a conveyance on the ground of mistake or fraud ; or to recover from trustees for a breach of trust (s) ; or the right of proceeding with a petition to wind up a company {a). But the rule does not apply in bankruptcy, where the rights of action of the bankrupt vest in the trustee, who may sue himself or sell and assign them to another for the benefit of the creditors (6). A bond fide purchase or assignment of pro- perty carries with it all rights of suit incidental to its realiza- tion and protection, as the right to have a prior voidable transaction set aside (c) ; unless it appears that the purchase was made for the special purpose of carrying on litigation (d) . So the assignment of the benefit of a contract carries with it rights of action subsequently arising out of the contract (c). And an agreement for the sale of an estate with a stipulation that the purchaser shall be entitled to recover the arrears of rent and the charges for dilapidations, and for that purpose to maintain actions then pending in the name of the vendor, (m) Per cur. Stanley v. Jmes, 7 («) Frosser v. Edmonds, 1 Y. & C. Bing. 369 ; Sprye v. Forter, 7 E. & Ex. 481 ; Sill v. Boyle, L. K. 4 Eq. B. 58 ; 26 L. J. Q. B. 64 ; Eeynell t. 260. /S>>-«^e, 1 D. M. & G. 660 ; 21 L. J. C. (a) Ee Faris Mink Co., L. R. 5 633 ; see Fowell v. Knowler, 2 Atk. C. D. 959. 224. {b) Seearir. lawson, L. E,. 15 C. D. tx) Sprye y. Forter, 7 E. & B. 58 ; 426; 60 L. J. C. 139; Guy y. Churchill, 26 L. J. Q. B. 64. L. U. 40C. D. 481; 58L. J. 0. 345. iy) Flating Co. v. Varquhar'son, L. (c) Dickinson v. Burrell, L. E. 1 K. 17 C. D. 49 ; 50 L. J. C. 406, Eq. 337 ; 35 L. J. C. 371. disapproving Fool y. Sacheverel, 1 P. (d) lie Soyhton v. Money, L. R. 2 Wms. 675. Ch. 164. («) Wilson V. Short, 6 Hare, 366. 632 THE MATTER OF CONTKACTS. Past III, is not illegal (/). A purchase made hoiiA fide of property whicli is the subject of a pending suit, is not illegal ; unless attended with an agreement to maintain the suit illegally by providing the costs of the evidence {g). Interest An interest in the matter of a suit, or a bona fide belief in such interest, justifies a person in maintaining the suit in respect of his interest (Ji). And where' several persons have a common interest, they may combine to maintain or defend that interest, though their rights and the actions against them are several ; and aa agreement to share the costs of litigation is not illegal («) : as the common interest of members of a trade in defending an action for infringement of a patent affecting it {k) ; the interest of a creditor in the suits of his bankrupt debtor [l) ; the interest of an elector in prosecuting an election petition (m). But an iaterest in the matter of the suit will not justify a champertous bargain for the separate and independent interest of another litigant («). — The interest arising from relationship by blood is sufficient to justify maintenance ; but it makes no difference as to champerty (o) . The relation of master and servant or principal and agent may give an interest sufiicient to maintain litigation, where the cause of action is a ministerial act, or something done in, or arising out of the character of agent or servant {p). And it has been held that the motive of " charity " is a defence to an action for maintenance ; though there was in fact no reason- able or probable cause for the proceedings {q). Purchase The purchase by a solicitor from his client of an iaterest in by solicitor . , / of interest a poudmg suit IS Voidable by the client by reason of the fiduciary relation of the solicitor (r). A stipulation by the (/) Williams t. Frotheroe, 5 Eiag'. supra 309 ; 3 T. & J. 129. (i) o,i,j v. Churchill, supra. (g) Per cur. Stanleij v. Jones, 7 (m) Wallis v. Portland, 3 Ves. 500. Bmg. 3/7 ; Sarrmgton v. Long, 2 M. («) Sutleg v. Hutley, L. B,. S Q. B. & K. 690 ; Hunter v. Daniel, i Hare, 112 ; 42 L. J. Q. B. 52. *^?,\ /-. 1 ■■,,-, -r (") Sntleyv. Uutleii, supra. (A) Coleridge, C. J., Sradlaugh v. (p) See Elhorough v. Ayres, L. E. Newdigate, L. E. 11 Q. B. D. 11; 10 Eq. 367; 39 L. J. C. 601 ^2,^- i: 9' ^- *^^- (?) Sarris v. Brisco, L. E. 17 (») Fmdon V. Parker, 11 M. & W. Q. B. D. 604 ; 55 L. J. Q. B. 423 6^5- (r) rFoodv. Potvnes, IS YeB. 120; (h) 1 luting to. V. Farqukarson, Simpson v. Lamb, 7 E. & B. 84; in suit. ILLEGALITY. 633 solicitor in a suit for payment of a certain sum of money if Chap. lY. Buccessful, or of a percentage upon the amount of the pro- perty recovered, besides his costs, is illegal and void (s). But he may take security upon the subject of suit for his advances and services in the prosecution of the suit (i). By " The Solicitors Act, 1870," 33 & 34 Viet. o. 28, a solicitor may make an agreement in writing with his client respecting pay- ment for his services, subject to the allowance of the taxing officer of the Court ; and with express exception of any pur- chase of the interest of his client in any suit or action, and of any agreement stipulating for payment only in the event of success (ii). An agreement by the solicitor not to charge any costs is not within the Act, and may be made without writing («) . Contracts operating in restraint of trade are iLLegal at Agree- common law ; unless the restraint is within reasonable limits, restraint having regard to the interests of the parties (y). In contracts ° ™ ^' for the sale of a goodwill, or for the formation or dissolution of a partnership, or for the employment of an agent or servant, in a particular trade or business, stipulations may be made to restrain a party from trading within such limits as are reasonably required for the protection of the interest of the other party ; but any restraint of trade exceeding such limits is iLLegal and void (2). Upon the saLe of the goodwill of a trade, in the absence of express stipulation, there is no implied restraint against the seller carrying on a similar trade and dealing with the former customers, or soliciting such customers in the ordinary way of business (a) ; " goodwill 26 L. J. Q. B. 121 ; Knight v. D. 573. Jlowyer, 2 De Gr. & J. 421 ; 27 L. J. {x) Jennings v. Johnson, L. E. 8 0. 528 ; Davis v. Freethy, L. K. 24 C. P. 425. Q. B. D. 519; 59 L. J. Q. B. 318; (y) DaviesY. Davies.'L.'R.ZQG.'D. see ante, p. 368. 359 ; 56 L. J. C. 962. (5) Barle v. Sopwood, 9 C. B. N. S. (z) Mitchell v. Reynolds, 1 P. Wms. 566 ; 30 L. J. 0. P. 217 ; Pince v. 181 ; 1 Smith's L. C. 9th ed. 430 ; Beattie, 32 L. J. 0. 734. Mallan v. May, 11 M. & W. 653 ; (t) Anderson t. Rateliffe, E. B. & Fry, J., Roussillon v. Soussillon, L. E. 819 ; 29 L. J. Q. B. 128. R. 14 0. D. 363 ; 49 L. J. C. 340. («) See post, p. 641 ; Se Attorneys (a) Cruttwell v. Lye, 17 Ves. 336 ; Act, 45 L. J. 0. 47 ; L. K. 1 0. Pearson v. Pearson, L. E. 27 C. D. 634 THE MATTEK OF CONTRACTS. PaetIII. being nothing more than the probability that the old cus- tomers will resort to the old place "(S). And upon a com- pulsory sale of a trade or business in bankruptcy, there is no implied restraint against the bankrupt carrying on a similar trade or soHoitiag his former customers (c) . So upon the dis- solution of a partnership where the goodwill is left with the continuing partners, there is no implied restraint against the retired partner continuing to trade (d) . Upon the same principle in the employment of an agent or servant there is no implied stipulation against his carrying on the same trade or business on his own account during or after the employ- ment further than not doing anything inconsistent with the employment (e). Limits of An agreement in restraint of trade may be made reasonable In space.' ^7 limitations of space and time. A restraiat unlimited in space, however limited in time, is ia general unreasonable, as being more extensive than the interest of the party can require (/). But there is no absolute rule to that efEect; there being some trades so widely diffused as to make an In time. unlimited restraint reasonable (g'). — A restraiat, reasonably limited ia space, may be unlimited in time, and may continue during the life of either party, though the party trading ceases to carry on the business ; for the continuance of the restraint may be necessary in order to secure to him or to his representatives the full value of the business by sale ; and the restraint is construed presumptively as continuing during the life of the party restrained, unless a certain limit is ex- pressed (a). But where the question is whether the restraiat 145 ; 54 L. J. 0. 32 ; overruling (/) Ward v. Si/me, 5 M. & W. Laiouchere v. Dmosan, L. E.. 13 Eq. 548 ; Allsopp v. Wheatcroft, L. E. 15 322 ; 41 L. J. C. 427 ; Vernon v. Eq. 59 ; 42 L. J. C. 12 ; Bowen, Ballam, L. K. 34 C. D. 748 ; 66 L. J., Savics v. Baiies, L. K. 36 L. J. C. 115. C. D. 390 ; 66 L. J. C. 962. (J) Eldon, L. C, CruttwellY. Lye, (g) Roussillon t. Sonssillon, L. K. supra; see ChissumY. Sewes, 5 Euss. 14 G. D. 351 ; 49 L. J. C. 338 ; see 30. Milk Y. Dunham, {l%9\) 1 Ch. 576; (c) JTalker v. Mottram, L. K. 19 60 L. J. C. 362. C. D. 366 ; 51 L. J. C. 108. (h) Hitchcock y. Coker, 6 A. & E. (d) Leggott v. Barrett, L. E. 15 0. 438 ; Fembertm v. Vaughan, 10 Q. B. D. 303; 61 L. J. 0. 90; Dawson Y. 87; Hastings y. Whitl'ei/, 2 Ex. 611; , L. E. 22 C. D. 604. JSlves v. Crofts, 10 C. B. 241 ; Games (e) He Irish, L. E. 40 C. D. 49. v. Nisbett, 7 H. & N. 778; 31 L J Ex. 273. ILLEGALITY. 635 is reasonable or not in space, the duration of time may be an Chap. it. important consideration ; for there may be degrees of restric- tion which are unreasonable or not, according to the time limited for their continuance (i). — There are cases in which Uniimited *■ ' . . . restraint. the special nature of the contract requires and justifies an unlimited restraint. Upon the sale of a secret process of manufacture of an article in general demand, it becomes a reasonable and necessary stipulation that the seller shall not communicate the process or carry on the manufacture in any place or under any circumstances (It). So with the licence to use a patent, the restraint may be unlimited during the con- tinuance of the patent (/). And a covenant by the seller of the goodwill of a trade, not to carry on the trade in the same name, may be absolute and unlimited («e). A contract for the employment of a person in a trade or business may be accompanied with an absolute and unlimited restraint against his carrying on the same trade or business for another person, or in any other way, during the employment (m) ; or an absolute restraint after termination of the employment against similar dealing at any time with any persons who were cus- tomers of the business during the employment (o) . And the employment, with an accompanying absolute and unKmited restraint, may be for life(^j). Although a person cannot legally bind himself to an unreasonable restraint of trade, yet it is not unlawful for him to abstain from trading ; and if he in fact submits to a restraint stipulated for as the considera- tion of a promise or payment, however unlimited and un- reasonable, he becomes entitled to claim the payment due in respect of it (q). — A doctrine formerly prevailed that the Considera- restraiut must not only be reasonably limited, but must also restraint. (s) Tindal, C. J., Proctor v. Sar- {n) FilMngtoiiY. Scott, 16 M. ScW. gent, 2 M. & G. 33. 657 ; EartUy v. Cmmnings, 5 C. B. {k) Leather Cloth Go. v. Lorsont, 247. L. B. 9 Eq. 345 ; 39 L. J. C. 86 ; (o) Milk v. Dunham, (1891) 1 Ch. Bnjson v. Whitehead, 1 Sim. & St. 576 ; 60 L. J. C. 362. 74 ; Eagg v. Barley, 47 L. J. C. 567. (p) TFallis v. Dag, 2 M. & "W. 273. (l) Jones V. Lees, 1 H. & N. 189 ; (y) Bishop t. Ivitchin, 38 L. J. 26 L. J. Ex. 9. Q. B. 20 ; see WalUs v. Day, 2 M. & (!«) Vernon v. Kallam, L. E. 34 W. 273. C. D. 748; 56 L. J. 0. 115. 636 THE MATTER OF CONTRACTS. Paet III. te compensated by a consideration adequate in value to the restraint imposed ; but it is now held with such contracts, as with all others, that, provided there is a legally valid con- sideration, the value or adequacy is left to the agreement of the parties, and cannot be inquired into by the Court (r). The mere engagement at wages or the continuance of a person in service, though determinable at the notice or will of the employer, is a sufficient consideration for a reasonable restraint against exercising the same trade on his own account after dismissal (-s). An engagement to serve exclu- sively, without an undertaking to employ or employment in fact, is void for want of any consideration (i) . So the enter- ing into a partnership is alone sufficient consideration for the restraint of a partner carrying on the same business after a dissolution of the partnership (u). Eeason- It is a question for the Court to determine upon the facts straints. of cach case whether the restraint is reasonable or not (x) ; and the burden of proof lies upon the party who asserts that the restraint which he has contracted to submit to is unreason- Surgeon, able (y). A contract by an assistant in the business of a surgeon, not to practise for fourteen years within ten miles of the same town, was held reasonable (2) ; so a covenant by a partner in the business of a surgeon after dissolution of the partnership not to practise or reside at any time within two and a half miles of a house in London («) ; and a contract by an assistant to a surgeon dentist, after instruction in the business for a term of four years, not to practise at any time in the City of London (b) ; but a like contract not to practise (>•) mtcheoclc V. Goher, 6 A. & E. [x) See list of cases in tabular 438 ; Alderson, B., PilMiigton v. Scott, form in the note to Averi/ v. Zang- 13 M. & W. 660. ford, Kay, 667 ; and in Pollock on (s) Benwell v. Inns, 24 Eeav. 307 ; Contracts, 5tli ed, p. 344. 26 L. J. C. 663 ; Mumford t. Gething, (y) Tallis v. Tallis, 1 E. & B. 391 ; 7 C. B. N. S. 305 ; Gravely v. Barnard, Ery, J., Houssilloii t. Moussillon, L. R. L. E,. 18 Eq. 518 ; 43 L. J. C. 659 ; 14 C. D. 365 ; 49 L. J. C. 338. Middleton v. Brown, 47 L. J. C. 411. (s) Davis v. Mason, 5 T. R. 118; {t) Toung v. Timmins, 1 Or. & J. see Sainier v. Ferguson, 7 C. B. 716 ; 331 ; Si/kes v. Bixon, 9 A. & E. 693 ; Sai/uard v. Toung, 2 Chitt. 407. see rUkington v. Scott, supra. (a) Atkyns v. Kinnier, 4 Ex. 776; (it) Zeighton v. Wales, 3 M. & W. post, p. 038. 645. (4) Mallart v. May, U M. & "W. 653. ILLEGALITY. 63' •within 100 miles of the City of York was held to he unreason- Cn^- IV- ahle (c). — A contract hy a solicitor upon the sale of his busi- Solicitor. ness not to practise in London or within 150 miles was held reasonable {d) ; and a similar contract not to practise in any part of Great Britain for twenty years (e) ; and a covenant by an articled clerk to a sohoitor not at any time to practise as a solicitor within the City of London or the counties of Middlesex or Essex (/). — A covenant by the lessor of a Brewer brewery that he would not during the demise carry on the trades, business of a brewer elsewhere or in any manner was held unreasonable (g). A covenant by the purchaser or by the lessee of a public-house against buying beer of any other person than the vendor or lessor is held reasonable and valid {h). And covenants in leases restrictive of any kind of trading upon the demised premises are legal, for the pro- tection of the property from nuisance and deterioration (;') . The restraint of a person in the business of a milkman, during twenty-four months after quitting the service, from setting up the like business within five miles of the same spot in London was held reasonable (A-) ; and a covenant by a butcher upon the sale, of his business not to carry on the same trade at any time within five miles (l) ; and a restraint upon the dissolution of a partnership in the publishing trade against one of the partners carrying on the trade at any time within 150 miles of the General Post Office (m). A restraint against carrying on a certain manufacture within 200 miles was held not reasonable, upon evidence as to the mode of carrying on the business (m) ; and a restraint upon a commercial traveller from travelling over the same ground as he was engaged for, which might extend over all England, was held valid, having regard to the custom of the trade (o). A covenant not to (c) Homer -7. Graves, 7 Bing. 735. (i) Seep/>st, p. 1048. {d) Bunn t. Guy, 4 East, 190. (k) Proctor v. Sargent, 2 M. & G. (e) Whittaker v. Howe, 3 Beav. 20 ; Bemoell v. Inns, 24 Beav. 307 ; 383 ; see per Patteson, J., in NichoUa 26 L. J. C. 663. V. Stretton, 10 Q. B. 353. {}) Elves v. Crofls, 10 0. B. 241. (/) May V. O'Neill, 44 L. J. 0. [m) Tallis v. Tallis, 1 E. & B. 391; 660 ; see Bendy v. Henderson, 11 Ex. 22 L. J. Q. B. 185. 194 ; 24 L. J. Ex. 324. («) Harms v. Parsons, 32 Beav. (g) Hinde v. Gray, IM.&G. 195. 328 ; 32 L. J. 0. 247. (A) Catt v. Tourle, L. E. 4 Ch. 654 ; (o) Mumford v. Gething, 7 C. B. 38 L. J. C. 665 ; post, p. 1048. N. S. 305. 638 THE MATTER OF CONTRACTS. Paet III. reside witliin certain limits is not illegal in itself, nor is it unreasonable as incident to a legal restraint of trade (^). — Measure of T]ie limits of distance are presumptively to be measured in a straight line, as upon a map ; and not along the practicable routes {q). An express provision that the distance should be measured " by the usual streets or ways of approach," was construed as meaning by any of the usual public ways and not only the most frequented ways (r) . A restraint of trading in " London " was construed to mean the " City of London " in its strict and proper limits, there being nothing in the context to the contrary ; though the person in whose interest the restraint was imposed did not live within the City(.). Eestraint If the restraint can be construed divisibly as to the limits, reasonable, it may be vaM so far as they are reasonable, though void for the excess. A restraint against practising in London, or in any place in England or Scotland where the employer might have been practising, was held good as to London, but void as to the rest {t). And a covenant not to exercise a trade within the cities of London or Westminster, or within 600 miles of the same, was construed divisibly and held good as to London and "Westminster only (m). Upon the same prin- ciple a covenant by the articled clerk to a solicitor, not to act for any person who had already been or who thereafter should become a client of the solicitor, was held to be unreasonably large ; but valid as to persons who were clients before and during the clerk's articles [x). A restraint against carrying on " any business whatever " cannot be construed divisibly with reference to the particular business to be protected, and was held wholly void («/). But a contract not to be concerned in " any trading estabHshment " was construed as intended to apply to the business of a " general merchant," which it (p) Atkynsv. Einniet; i Ex. 776; («) Mallaii v. Mat/, 11 M. & W. see Dendi/ v. Henderson, supra. 653 ; Chesman v. Nainby, 2 L. Raynii [q) MouJletY. Cole, L. R. 8 Ex. 32 ; 1456. 42 L. J. Ex. S ; Buignan v. TValker, [u] Price v. Green, 16 M. ftW. 346. 1 Johns. 446 ; 28 L. J. G. 867. (x) mcholls v. Stretton, 10 Q. B. [r) Atkyns t. Einnier, i Ex. 776. 346 ; 7 Beav. 42 : Baines v. Gearv. (s) Mallan v. May, 13 M. & "W. L. R. 35 0. D. 154 ; 66 L. J. C 935 611 ; ante, p. 188. {y) Baker v. Hcdgecoek, L. E. 39 C. D. 520 ; 67 L. J. C. 889. ILLEGALITY. 639 was the object of the contract to protect (s). A covenant by Chap, iy. a partner, " to retire from the partnership and, so far as the law allows, from the business," was construed as imposing no definite restraint and therefore void ; there being no limits fixed by the parties, nor any fixed by law (a). A covenant not to carry on a trade is broken by acting as Breach of a joiuTieyman or assistant to another person in the same trade (5) . A covenant by the vendor of a medical practice, not to " enter into competition " with the purchaser, is broken by attending a former patient at his own soKcitation (c). The selling of some articles of a trade, which are commonly sold in another trade, in the com'se of carrying on the latter, is no breach of a restraint against carrying on the former {d). Combinations of workmen for the purpose of restricting the Comtina- free disposal of labour, or the free conduct of trade are illegal workmen at common law, as operating in restraint of trade. They ^^^de^™* " cannot create any mutual obHgation having the legal effect of binding each other not to work, or not to employ unless upon terms allowed by the combination (e) . — ^But a class of such Trade combinations are now recognized and regulated, and may be registered, under the Trade Union Acts, 1871 and 1876 (34 & 35 Viet. c. 31, 39 & 40 Yict. c. 22). These Acts define a " trade union " ; and the former Act, s. 2, exempts any member of such trade union from criminal prosecution for conspiracy or otherwise (/). By the Act, 1871, s. 3, " the pur- poses of any trade union shall not, by reason merely that they are in restraint of trade, be unlawful so as to render void or voidable any agreement or trust." But by s. 4, " nothing in {:) Avery v. Langford, Kay, 6G3 ; (e) Hannen, J., Fairer v. Close, 23 L. J. C. 837. L. E. 4 Q. B. 612 ; 38 L. J. M. 132 ; (a) MaviesY. DameSyli.'R. 36 0.1). citing- "The Law of Trades Unions," 359 ; 56 L. J. C. 962. by Sir W. Erie ; see Sornby v. Close, {b) Jones v. Heavens, L. E. 4 C. D. L. E. 2 Q. B. 153 ; 36 L. J. M. 43 ; 636 ; Falmer v. Mallet, L. E. 36 C. D. . Siffby v. Connol, 14 C. D. 482 ; 49 L. 411 ; 57 L. J. C. 226 ; see Allen v. J. C. 328 ; Springhead Spinning Co. v. Taylor, 19 W. E. 556. Eiley, 6 Eq. 551 ; 37 L. J. C. 889. (c) Rogers v. Drury, 57 L. J. C. 504. (/) See Gibson v. Lawson, (1891) 2 Id) Stuart v. Diploe/e, L. E. 43 Q. B. 645 ; 61 L. J. M. 9. CD. 343"; 59 L. J. C. 142. 640 THE MATTER OF CONTRACTS. Past ni. this Act shall enable any Court to entertain any legal pro- Deeding instituted with the object of directly enforcing, or recovering damages for the breach of any of the following agreements " ; and certain agreements are specified, chiefly of a kind operating in restraint of trade, which are thus taken out of the Act and remain as at common law (/). Comtina- Upon the same principle a combination of traders for pur- traders, poses operating in unreasonable restraint of trade is illegal and void : as a bye-law or rule of a trading corporation imposing restrictions upon workmen in the trade (g) ; or restraining sale of goods except to members of the corpora- tion {h) ; or restraining the employment of persons leaving the service of members without their consent {i) ; and a bond entered into by the miLlowners of a district, conditioned to carry on their works, in regard to wages and the engaging of workmen and the times of work, according to the resolutions of a majority of their number, was held void (A). But a combination of traders for the purpose of sharing the trade equally and avoiding competition between themselves, is valid; unless accompanied with unreasonable restraints upon the parties (i!). A combination of quarry owners, for one to tender for a contract and to buy the stone from the others, who were not to compete with his tender, was held valid ; and one of them who tendered in breach of the agreement was restrained by injunction (w) ; and a combination of shipowners to give special advantages to shippers who dealt with them exclusively, and to charge freights below other shipowners for the purpose of excluding competition, whether or not in- valid as between the members, was held to give no cause of action for the loss sustained by a competing shipowner («). (/) Si^by T. Connol, supra; Du/ce (i) Mineral Water Co. v. Booth, V. Littleboy, 49 L. J. C. 802 ; Oldy. L. E. 36 C. D. 465. Sobson, 59 L. J. M. 41 ; see Wolfe v. (A) Silton v. Eckersley, 6 E. & B. Matheics, L. K. 21 C. D. 194 ; 51 L. J. 66 ; 25 L. J. Q. B. 199. C. 833 ; Stride v. Swansea Tin Co., [I) Collins r. Locke, L. R. 4 Ap. L. B. 36 C. D. 558 ; Swaine t. Wil- Ca. 674 ; 48 L. J. P. C. 68. son, L. R. 24 Q. B. D. 252. (»h) Jones t. North, L. R. 19 Eq. (g) Tailors of Ipswich case, 11 Co. 426 ; 44 L. J. C. 388. 63. («) Jiroffid Co. T. JTacffreaor, (1892) {h) Gunmalccrs' Co. v. Fell, Willes, A. C. 25 ; 58 L. J. Q. B 465 384, ILLEGALITY. ' 641 In many professions and trades restrictions and regulations Chap. iv. affecting contracts are imposed by statutes, as to the qualifi- Statutory cations of persons and the conduct of business : — By the Soli- and regu- citors Acts, a solicitor is required to be duly admitted and pro'Sions enrolled, and to have a stamped certificate, as conditions of and trades. acting as a solicitor (o) . And by the Solicitors Act, 1874, Acts. 37 & 38 Yict. c. 68, s. 12, it is provided that, " no costs, fee, reward, or disbursement on account of any act or proceeding done or taken by any person who acts as an attorney or solicitor, without being duly qualified so to act, shall be reco- verable in any action, suit, or matter by any person or per- sons whomsoever" (^). By this enactment the client who retained the solicitor is also deprived of his remedy for costs, though he had no notice of the disqualification {q) . Under former Acts it was held that the remedy of the solicitor by action was taken away without discharging the debt ; which might therefore be claimed under a submission of the client to taxation or under a lien (r) . But the acts and proceedings of a solicitor on behalf of his client cannot be set aside as irregular, merely on the ground that he had not a certifi- cate (s).— By the Solicitors Act, 1870, 33 & 34 Vict. c. 28, s. 4, a solicitor may make an agreement in writing for the payment of services and disbursements as solicitor, subject, as to business in any suit or action, to allowance by the tax- ing officer of the Court (;!) ; and with a saving, s. 11, of purchases by a solicitor of the interests of his client in any suit, and of agreements for payment only in the event of success in a suit (m). And by the same Act, s. 16, a solicitor (o) 6 & 7 Vict. c. 73 ; 23 & 24 Vict. L. J. C. 83 ; see Se Sope, L. E. 7 c. 127 ; 33 & 34 Vict. c. 65 ; 37 & 38 Ch. 766. Vict. 0. 68 ; 51 & 52 Vict. c. 65; see («) Sparling t. Brereton, L. E. 2 Brunswick v. Growl, 4 Ex. 492 ; Se Eq. 64 ; 35 L. J. C. 461. Morton, L. E. 8 Q. B. D. 434 ; 51 {«) Se lewis, L. E. 1 Q. B. D. L. J. Q. B. 309. 724 ; 45 L. J. Q. B. 816 ; Hees v. (jo) See Verlander v. jEddolls, 51 JFilliams, L. E. 10 Ex. 200; Se li. J. Q. B. 55. Sussell, L. E. 30 C. D. 114 ; 54 {q) Fowler v. Monmouth Ry. Co., L. J. C. 948 ; Jennings v. Johnson, L. K. 4 Q. B. D. 334 ; 48 L. J. Q. B. L. E. 8 C. P. 425 ; and see Solicitors' 457 ; Irwin v. Sanger, 58 L.J. Q. B. Eemuneration Act, 1881, 44 & 45 64. Vict. c. 44. (»•) Ee Jones, L. E. 9 Eq. 63 ; 39 («) See ante, p. 632. L. T T 642 THE MATTER OF CONTRACTS. Paet III. may take security from his client for future fees, charges and disbursements. Medical By the Medical Act, 1858, 21 & 22 Yict. c. 90, s. 32, " no person shall be entitled to recover any charge in any Court of law for any medical or surgical advice, attendance, or for the performance of any operation, or for any medicine •which he shall have both prescribed and supplied, unless he shall prove upon the trial that he is registered under this Act." And he must prove not only that he is registered at the time of the trial, but also that he was registered when the charge accrued («) . This section applies to a charge for medical attendance on third parties upon an undertaking or guarantee for payment ; but not to a charge by an unregistered assistant against his employer for his services ; and it applies to a foreigner practising in this country ( y) . An unregistered person may engage registered persons to practise medicine ; but he cannot engage registered persons to assist liimself in practising medicine ; nor can a registered person engage un- registered persons to practise medicine (z). — By the Medical Act, 1886, 49 & 60 Yict. c. 48, s. 6, " a registered medical practitioner shall be entitled to practise medicine, surgery, and midwifery in the United Kingdom and (subject to any local law) in any other part of Her Majesty's dominions and to recover any expenses, charges or fees ; unless he is a fellow of a college of physicians, the fellows of which are prohibited by bye-law from recovering at law their expenses, charges or fees ; in which case such bye-law, so long as it is in force, may be pleaded in bar of any legal proceedings." Before these Acts a physician was presumed by custom to make no charge for his services, and his fees were presumptively gra- tuitous ; but he was not precluded by law or custom from making a legal contract for payment (a). A physician is now (x) Leman v. Souseleij, L. K. 10 Iz) Varies v. Makuna, L. B. 29 Q. B. 66; 44 L. J. Q. B. 22; see C. 1). 596; 54L. J. C. 1148; ^okw^A Tunicr v. Meynall, 14 C. B. N. S. v. Urcarley, L. R. 19 Q, B D 303- 323 ; 32 L. J. G. P. 1 64 ; Alvarez v. 56 L. J. Q. B. 543 l-nelo, 16 C. B. N. S. 578 ; 33 L. J. {a) Cltorky v. Bolcot, 4 T E 317 ■ ,\ "f^ „ • '^'"'''■''' ^'- -S'w-w^', 3 Q. B. 928; see (y) Alcarezy. Frieto, supra. Alt -Gen. v. Colleqe of T/n/sicians I J. & H. 561 ; 30 L. J. C. 757 ' ILLEGALITY. 643 entitled to recover his expenses, charges and fees under the Chap. iv. above Act; subject to a bye-law of a college to the con- trary (b). And the Royal College of Physicians has passed a bye-law, that "no fellow of the college shall be entitled to sue for professional aid rendered by him"(c). — By the Apothe- caries Act. Apothecaries Act, 55 Geo. III. c. 194, s. 14, no person can practise as an apothecary without a certificate from the Apothecaries Company ; and by s. 21, "No apothecary shall be allowed to recover any charges claimed by him in any Court of law, unless such apothecary shall prove on the trial that he has obtained a certificate to practise." The Medical Act does not repeal this Act, nor dispense with the certificate required by it {d). And the quaKfication must exist at the time of the services rendered (c). — By the Pharmacy Act, Pharmacy 1868, 31 & 32 Vict. c. 121, s. 1, it is unlawful under a "*■"*• penalty for any person to sell or dispense poisons, or to assume the title of chemist or druggist, unless such person shall be a pharmaceutical chemist registered under the Act» and conform to such regulations as to the keeping and selling poisons as may be prescribed by the Pharmaceutical So- ciety" (/).— The Dentists Act, 1878, 41 & 42 Yict. c. 33, ^^^^^^ and the Veterinary Surgeons Act, 1881, 44 & 45 Vict. c. 62, contain similar provisions against the recovery of any fee or charge for acting in those professions, unless registered as a qualified practitioner. The Pawnbrokers Act, 1872, 35 & 36 Vict. c. 93, defines Pawn- the terms pawnbrokers and pledges for the purpose of the Act. Act, and regulates the conduct of the business, the contract of pawn, the redemption of pledges and the sale of unredeemed pledges. By s. 14, " a pawnbroker shall on taking a pledge in pawn give to the pawner a pawn ticket, and shall not take (i) Gibbon v. Budd, 2 H. & 0. 92 ; (/) Fharmac. Society v. London 32 L. J. Ex. 182. Supply Ass., L. R. 5 Ap. Ca. 857 ; (c) 32 L. J. Ex. 182, n. [a). 49 L. J. Q. B. 736 ; Templeman v. (d) Leman v. Fletcher, L. B. 8 Trafford, L. R. 8 Q. B. D. 397 ; 51 Q. B. 319 ; 42 L. J. Q. B. 214. L. J. M. 4 ; Fharmac. Society v. (e) Leman v. Souseley, supra. Wheeldon, L. R. 24 Q. B. D. 683 ; 59 L. J. Q. B. 400. tt2 644 THE MATTER OF CONTRACTS. Pakt III. Sale of spirituous liquors. a pledge in pawn unless the pawner takes the pawn ticlcet." The ticket in the form provided in the Schedule to the Act contains the terms of the contract. By s. 24, a pawnbroker may make a special contract in respect of a loan of above forty shillings, in the form therein provided. The pawn- broker has the right at common law of recovering the defi- ciency from the borrower, if a sale of the pledge produces less than the amount of the loan ; which right is not impliedly excluded by the statutory contracts {g). By s. 45, penalties are imposed on offences against the Act ; but with a saving, s. 51, of the validity of contracts of pawn and other contracts of the pawnbroker so ofEending. The statute 24 Geo. II. c. 40, s. 12, " for restraining the retailing of distilled spirituous liquors," provides, s. 12, that no person shall sue for or recover any debt for or on account of any spirituous liquors, unless such debt shall have been bona fide contracted at one time to the amount of twenty shillings or upwards {h) ; also that a retailer of spirituous liquors taking a pawn or pledge for a debt for spirituous liquors shall be liable to a penalty ; and that the owner may recover the pawn as if it had never been pledged. This enactment was repealed by 25 & 26 Yict. c. 38, " so far only as relates to spirituous liquors sold to be consumed elsewhere than on the premises where sold, and delivered at the resi- dence of the purchaser thereof in quantities not less at any time than a reputed quart." By the Licensing Act, 1872, 35 & 36 Yict. c. 94, " for regulating the sale of intoxicating liquors," s. 3, " no person shall sell by retail any intoxicating liquor without being duly licensed to sell the same, or at any place where he is not authorised by his licence to sell the same." And by the County Courts Act, 1888, 61 & 52 Yict. c. 43, s. 182, " No action shall be maintainable in any Court to recover any debt in respect of the sale of any ale, porter, beer, cider, or perry which was consumed on the premises where sold or supplied, or in respect of any money or goods {g) Jones v. Marshall, L. E. 24 Q. B. D. 269 ; 59 L. J. Q. B. 123. (A) Stighes v. Done, 1. Q, B. 294 ; see Scott v. Gillmore, 3 Taunt. 226 ; Fhilpott V. Jones, 2 A. & E. 41, post, p. 792. ILLEGALITY. 645 lent or supplied, or of any security given for the obtaining of Chap. iv. any such ale, porter, beer, cider or perry." The statute 1 & 2 Will. lY. c. 32, s. 4, prohibits the sale of Sale of game birds after ten days from the day when it becomes ^^'°^^' unlawful to kill such game. And s. 25, prohibits the selling of game without a licence or certificate, or the selling with a certificate to an unlicensed person. The Act does not apply to live game («) ; nor to game birds killed abroad {k). The Ground Game Act, 1880, 43 & 44 Vict. c. 47, provides, s. 1, that "every occupier of- land shall have, as incident to and inseparable from the occupation of the land, the right to kill and take ground game thereon;" and s. 3, that "every agreement, condition or arrangement which purports to divest or alienate the right of the occupier as declared given and reserved to him by this Act," shaU. be void. — The statute Coal. 52 & 53 Vict. c. 21, enacts, s. 20, that "all coal shall be sold by weight only" except as therein provided ; and s. 21, that the seller shall deliver a weight ticket in the form in the schedule to the Act with any quantity of coal exceeding two hundred weight delivered to a purchaser. The seller cannot recover the price of coals sold in violation of the statute (/). — The statute 6 & 7 Will. IV. c. 37, s. 4, prohibits the sale Bread, of bread in any other manner than by weight, with a proviso excepting fancy bread (»i). — The Act 32 & 33 Vict. c. 24, re- Printing, enacting 2 & 3 Vict. e. 12, s. 2, prohibits the printing and the publishing of any paper or book, on which the name and abode of the printer shall not be printed ; and no action will lie to recover the price of such printing (n) . The Truck Act, 1 & 2 Will. IV. c. 37 (amended by Truck Act. the Truck Act, 1887, 50 & 51 Vict. c. 46), enacts, s. 1, "that in all contracts for the hiring of any artificer iu any of the trades hereinafter enumerated, or for the performance by any artificer of any labour in any of the said trades, the (i) Forritt v. Baker, 10 Ex. 759. (m) Jones Y.SuxtabU, L. B. 2 Q. B. (k) Guyer v. The Queen, L. K. 23 460 ; 36 L. J. M. 122; RUl^. Brown- Q. B. D. 100 ; 23 L. J. M. 81. ing, L. E. 5 Q. B. 453 ; see 52 & 53 {T) See Cunclell v. Dawson, 4 C. B. Vict. c. 21, s. 32. 376 ; Smith v. Wood, L. E. 4 Q. B. D. («) BensleyY. Bignold, 6 B. & Aid. 23; 69 L. J. Q. B. 5; Roberts v. SS6; Day v. Semminy, 9W. U Q B Woodward, L. R. 25 Q. B. D. 412. 703. 646 THE MATTER OF CONTRACTS. Pabt in. wages of such artificer shall be made payable in the current coin of this realm only, and not otherwise;" and any contract to the contrary is declared illegal and void (o). S. 2 further enacts that any provision in such contract con- cerning the place where, or the manner in which, or the person with whom such wages shall be expended is declared illegal and void. S. 19 specifies the trades to which the Act applies. S. 23 excepts the supplying to any such artificer medicine or medical attendance, fuel, materials and imple- ments of trade, or rent, under an agreement in writing (|;). — Sunday The statute 29 Car. II. c. 7, s. 1, enacts that "no trades- trading. man, artificer, workman, labourer, or other person whatsoever, shall do or exercise any worldly labour, business, or work of their ordinary callings upon the Lord's Day, or any part thereof (works of necessity and charity only excepted) ; " and that every person offending in the premises shall forfeit a penalty. Contracts which are not in the ordinary callings of such persons are not within the statute ; nor if made on Sunday are they void at common law {q). A farmer is not within the statute (r) ; nor is a solicitor (s) . A party cannot sue upon a contract which he has made in violation of the statute ; thus a horsedealer who has bought a horse with a war- ranty on Sunday cannot sue for a breach of the warranty (t) . But a party charged with a contract cannot assert his own violation of the statute in defence, without proof that the other party knew him to be exercising his ordinary calling, or was himself exercising his ordinary calling in violation of the statute {ti) . The property in goods may pass under an executed contract within the statute ; and a Hen may be (o) See Chawner v. Cummings, 8 Cooper, L. R. 26 C. D. 693 ; Lami v. Q. B. 311 ; Archer V. James, 2 B. & O. JST. Si/., (1891) 2 Q. B. 281; 60 S. 61 ; 31 L. J. Q. B. 153 ; Smith v. L. J. Q. B. 489. Walton, L. R. 3 C. P. D. 109 ; 47 (?) Dritri/ v. Defontaine, 1 Tannt. L. J. C. P. 45 ; Gould t. Haynes, 59 131 ; Scarfe v. Morgan, 4 M. & W. L. J. M. 9 ; see TTilUs v. Thorp, 270. L. R. 10 Q. B. 383 ; 44 L. J. Q. B. (r) The Queen t. Silvester, 4 B. & m; HnntY. Great North. Ry., (19,21) S. 927 ; 23 L. J. M. 79. 1 Q. B. 601 ; 60 L. J. Q. B. 216. (s) Pcate v. Bicken, 1 C. M. & R. (p) See Cults v. Ward, L. R. 2 422. Q. B. 357; 36 L. ,T. Q. B. 161; [t) Fennell y. Hidler, 6 B. &G. i06. Tillar V. Lhjnvi Coal Co., L. R. 4 lu) Bhxsomey. Saunders, 3 B. & C C. P. 752; SSL. J. 0. P. 294; i'a;^). 232. ILLEGALITY. 647 acquired for the price of work done under it (x). And a Chap. IV. party may be charged upon a contract or promise subse- quently made in respect of a transaction which is avoided by the statute (y). The Weights and Measures Act, 1878, 41 & 42 Vict. c. 49, Weights provides imperial standards for the weights and measures to measures. be used throughout the United Kingdom. And by s. 19, " Every contract or dealing made or had in the United Kingdom for any work, goods or other thing which is agreed for by weight or measure shall be deemed to be made and had according to one of the imperial weights or measures ascertained by this Act, or to some multiple or part thereof, and if not so made or had shall be void " (s). S. 21 provides that the weights and measures of the metric system, and decimal sub-divisions of imperial weights and measiures may be used in contracts or dealings. The measures expressed in a contract are construed presumptively to mean statutory measures, notwithstanding a local customary meaning of the terms used (a). — The Coinage Act, 1870, 33 & 34 Yict. Coinage. 0. 10, s. 6, enacts that " every contract, instrument and security for money, and every transaction whatever relating to money or involving the payment of or the habihty to pay money shall be made according to the coins which are cur- rent and legal tender in pursuance of this Act, and not other- wise, unless made according to the currency of some British possession, or some foreign state" (b). Trading with a public enemy is illegal at common law ; and Trading contracts involving such illegality are void (c) . A declara- enemy, tion of war renders it tmlawful to buy goods in the enemy's (ic) Scarfe v. Morgan, supra. 393 ; 24 L. J. Ex. 259. ( e- 1. ILLEGALITY. 653 an illegal consideration." The statute 8 & 9 Vict. c. 109, Chap, iy. s. 15 (z), 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 portion above cited The effect of these statutes is that bills and notes given for the gaming con- siderations stated therein are void only as being illegal between the immediate parties, and therefore may become valid in the hands of a bona fide holder for value without notice of the illegal consideration ; but proof of the illegal inception of the instrument throws upon the holder the burden of proving that he took it in good faith and for value (a). Money lent for the payment of debts arising from past gaming or betting is not an "illegal consideration" within the statute ; and a security given for it is valid [b). Insurance of marine risks, upon the terms of " interest or insurances no interest," or without further proof of interest than the interest policy, which therefore may in effect be wagering contracts °" ^^^v^- were lawful at common law (c) . But by the statute 19 Geo. II. c. 37, s. 1, no assurance shall be made on any ship, or any goods laden on board of any ship, " interest or no interest, or with- out further proof of interest than the policy, or by way of gaming or wagering, or without benefit of salvage to the assurer ; and every such assurance shall be null and void to all intents and purposes." Marine insurance is thus reduced in all cases to a contract of indemnity. The insured must allege and prove his interest, and can recover only the amount of his loss : as the interest of a buyer of cargo {d) ; or of an unpaid seller (e) ; or an interest in respect of profits and commission on goods shipped (/) ; or in respect of (z) This section is repealed by S. L. (c) Per cur. Cousins v. Nantes, 3 Eev. Act, 1875, tut without reviving Taunt. 515, citing Zueenay. Craw- the enactment repealed by it. furd, 2 B. & P. N. R. 315. (a) Say v. Ayling, 16 Q. B. 423 ; (d) Anderson v. Morice, L. E. 1 see Bingham v. Stanley, 2 Q. B. 117 ; Ap. Ca. 713 ; 46 L. J. Q. B. 11. BiUs of Exchange, Act, 1882, s. (e) Seayrave v. Union Marine, Li.H. 30 (2), ante, p. 528 ; post, p. 1020. 1 C. P. 305 ; 35 L. J. C. P. 172. (i) mil V. Fox, 4 H. & N. 359-; (/) De Mattos v. North, I.. E. 3 Re Lister, L. E. 8 C. D. 754; 47 Ex. 185; 37 L. J. Ex. 116; Alllcins L. J. B. 100. V. Jupe, L. E. 2 C. P. D. 375 ; 46 L. J. C. P. 824. 654 THE MATTER OF CONTRACTS. Past in. advances on cargo or on ship {cj) . An insurance of such interests with the stipulation " full interest admitted " is void by the statute, though the insurer has a substantial interest in fact, and it is not by way of gaming or wagering (A) ; so with an insurance "without benefit of salvage "(z). The Valued enactment does not extend to foreign ships {k) . — The ship or other subject of insurance may be valued by agreement in the policy at a fixed sum ; and such agreed valuation, whether in excess or in defect of the real value, is prima facie con- clusive between the parties in adjusting the loss (l). An excessive over- valuation may be evidence of fraud, or of an intention of wagering, which vitiates the policy {in) ; and it is a material fact, which it is necessary to disclose to the underwriter («). "Valued poKcies, though frequently in effect wagering policies, have been permitted, because it has been supposed that the convenience of them is greater than would result from the prohibition of them," in avoiding dis- putes and inquiries respecting the value (o). In the case of a total loss, whether actual or constructive, the insured can recover from the underwriters the agreed value ; and though that value be less than the real value he can recover no more (|j) ; and the underwriters on payment of the agreed value become entitled to the whole amount of salvage, or in case of loss by collision, to the whole damages recovered, not- withstanding the value in the policy is less than the real value {q) . In the case of partial loss the insured recovers the same proportion of the agreed value as the loss bears to the (g) Eisworth T. Alliance Marine, supra ; Saigh y. De la Coin; 3 Csltwo. L. R. 8 C. P. 596; 42 L. J. C. P. 319. 305 ; Berridge v. Man Ins., L. B. 18 («) lonides t. Fender, L. E. 9 Q. B. Q. B. D. 3i6 ; 56 L. J. Q. B. 223. 531 ; 43 L. J. Q. B. 227 ; ante, p. 341. (7j) Berridge v. Man Ins., supra. (o) Eldon, L. C, Lucena t. Craic- (i) Allkins t. Jupe, supra. furd, 2 B. & P. N. R. 322. {k) Allkins v. Jupe, supra. {p) Irving v. Manning, supra ; \l) Irvingy. Manning, 6 C. B. S9l ; Bousjield v. Barnes, 4 Camp. 228; 1 H. L. 0. 287 ; Barker v. Janson, Bruce v. Jones, 1 H. & C. 7G9 ; 32 L. R. 3 C. P. 303 ; 37 L. J. C. P. L. J. Ex. 132. 105; Zidgettv. Secretan, L. R. 6 C. P. (q) North of England Ins. v. Arm- 616 ; 40 L. J. C. P. 257 ; see Wilson strong, L. R. 5 Q. B. 244 ; 39 L. J. V. Nelson, 5 B. & S. 354 ; 33 L. J. Q. B.81; see Burnand v.Bodocanac/ii, Q. B. '220. L. R. 6 Q. B. D. 633; 51 L. J. Q. B. (ih) Itr cur. Barker v. Janson, 548 ; ante, p. 63. ILLEGALITY. 655 real value (r) . Although a valued poHcy is conclusive as to Chap, iy. the value, it leaves it open to inquire what is intended in the suhject insured ; as in the case of valued " freight," whether it includes advanced freight or only the balance at risk (s) ; so whether it includes the carriage of passengers as well as the carriage of goods (t). Insurance of life, by the payment of a fixed annual premium insurance in consideration of a certain sum to be paid at death, is not a °" ^ ' contract of indemnity, and at common law might be made without any interest, pecuniary or otherwise, in the life insured (it). But the statute 14 Geo. III. c. 48, enacted, s. 1, " that no insurance shall be made by any person on the life of any person, or on any other event or events what- soever, 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." And 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 received from the insurer or insurers, than the amount or value of the interest of the insured ia such life or lives, or other event or events." Upon the construction of this statute it is held sufiicient if the insured had an interest in the hfe at the time of effecting the insurance ; and he may continue the insurance and recover the value of the interest after it has ceased to exist («). But if a person insures the same interest with several insurers, he can only recover upon the whole the value of his interest ; and upon receiving the whole value from one he is precluded from charging the others (y) ; who become liable to contribute pro rata to the one who has paid (;•) lewis v. Euekei; 2 Burr. 1167 ; {«) Per cur. Daily t. India Ins., 15 Denoon v. Some Ass., L. E. 7 C. P. C. B. 365 ; 24 L. J. 0. P. 6. 341; 41 L. J. C. P. 162; Aitchison {x) Dalby v. India Ins., supra; V. Lohrc, L. R. 4 Ap. Ca. 765 ; 49 overruling Oodsall v. Boldero, 9 East L. J. Q. B. 123. 72 ; 2 Smith's L. C. 9th ed. 286 ; Law (s) WtUiams v. North China Ins., v. London Indisptitable Co., 1 K & J L. B. 1 C. P. D. 757 ; see Allison v. 223 ; 24 L. J. C. 196. Bristol Ins., L. R. 1 Ap. Ca 209. («/) Seidon v. West, 3 B. & S. 579; (t) Denoon v. Home Ass., supra. 32 L. J. Q. B. 85. 656 'J"IIE MATTKR Of (MM'KACTS. Paet III. the whole (z). — A person is taken to have an unlimited ineur- Insurable able interest in his own life, and in that of his wife ; and a iS Uie. wife in that of her husband {a) ; but a parent cannot insure the life of a child without having a pecuniary interest in the liie{b). By the Married Women's Property Act, 1882, 45 & 46 Yict. c. 75, s. 11 (repealing and re-enacting the Married Women's Property Act, 1870, s. 10), " a married woman may effect a policy upon her own life or the life of her husband for her separate use;" and " a policy effected by any man on his own life, and expressed to be for the benefit of his wife, or of his wife and children, or any of them, or by any woman on her own life, and expressed to be for the benefit of her husband, or of her husband and children or any of them, shall create a trust in favour of the objects therein named ; and the moneys payable under any such policy shall not, so long as any object of the trust remains unperformed, form part of the estate of the insured, or be subject to his or her debts ; provided that if it shall be proved that the policy was effected and the premiums paid with intent to defraud the creditors of the insured, they shall be entitled to receive out of the moneys payable under the policy, a sum equal to Interest the premiums so paid"(c). — A creditor has an insurable interest in the life of his debtor to the amount of the debt ; and he may continue the insurance and recover that amount after the debt has been paid {d). An insurance company in lending money may lawfully stipulate that the borrower shall insure his life to a greater amount than the debt, and assign the policy to them as security (e). A debtor acquires no insurable interest in the life of his creditor by reason of a promise by the creditor, made without any valid consideration, that he would not demand payment of the debt during his (z) See ante, p. 62. (c) See SoH v. Efsrall, 45 L. J. [a) liede v. Keij, Peake, Add. Ca. C. D. 433 ; L. R. 2 0. D. 266 ; Se 70. Adams' Policy Trusts, L. R. 23 C. D. (b) Halford v. Kymer, 10 B. & C. 625; 52 L. j. C. 642. 724; TFortliington v. Curtis, L. E. 1 {d) Dalby v. India Ins., supra. C. D. 419; 45 L. J. 0. 259; see (e) Downes v. Green, 12 M & "W" Friendly Societiea Act, 38 & 39 Vict. 481. u. 60, s. 28. ILLEGAMTY. 657 life (/). — A contract of employment at a fixed salary for a Chap, iv . certain term of years gives the employed an insurable interest in the life of the employer («) Taylor v. Chester, L. K. 4 Q. B. (q) Farmer v. Mussell, 1 B. & P. 309 ; 38 L. J. Q. B. 225. 296 ; Bousfleld v. Wilson, 16 M. & (re) Ayerst v. Jenkins, L. R. 16 Eq. W. 185 ; see Nicholson t. Gooch, 5 E. 275 ; 42 L. J. C. 690 ; ante, p. 660 ; & B. 999 ; 25 L. J. Q. B. 137. see Pawson v. Brown, L. R. 13 C. D. (r) Bridger v. Savage, L. R. 15 Q. 202 ; 49 L. J. C. 193. B. D. 363 ; 54 L. J. Q. B. 464. (o) JVorthington v. Curtis, L. R. 1 (s) Bone v. Eckless, 5 H. & N. 925 ; C. D. 419 ; 45 L. J. C. 259. 29 L, J. Ex. 438. XX 2 G76 THE MATTER OF CONTRACTS. Exception of parties not in pari delicto. Pabt III , money is paid to one of two persons on account of both, the claim of the other to payment of his share cannot be met by merely asserting that the money was paid in execution of an illegal transaction (t). But the Court will not order an account of profits of an illegal partnership or business (u) ; nor can any claim be allowed for compensation or contribu- tion between persons engaged in an illegal transaction (a^). Where two persons had joined in an illegal wager which they won, and one of them advanced to the other his share of the winnings, which the loser failed to pay ; it was held that he could not recover back the sum so advanced, because he could not maintain such claim except through the illegal con- tract {y). An exception to the rule, that money paid in execution of an illegal contract cannot be recovered back, is made where the party who paid the money acted under undue pressure or influence on the part of the receiver, and therefore was not in pari delicto with the latter. " Where contracts or transactions are prohibited for the sake of protecting one set of men from another ; the one, from their situation and condition, being liable to be oppressed or imposed upon by the other ; there the parties are not in pari delicto, and the person injured, after the transaction is finished and completed may bring his action and defeat the contract. For instance, by the Statutes of Usury (since repealed) taking more than 6 per cent, is declared illegal and the contract void ; but these statutes were made to protect needy persons from the oppression of usurers ; there- fore, the party injured may bring an action for the excess of interest" (s). Where a bankrupt pays money to a creditor in consideration of forbearing to oppose, or consenting to his discharge (a) ; or where a debtor compounding with his cre- (<) TFatts V. Jlrooks, 3 Ves. 612; Sharp V. Taijlor, 2 Phill. 801 ; see Beeston v. JBeeston, L. E. 1 Ex. D. 13 ; 45 L. J. Ex. 230 ; ante, p. 652. (m) Knowles v. Houghton, 11 Ves. 168 ; Ewing v. Oshaldiston, 2 M. & Cr. 53. [x) Jessel, M. E., Sykes v. ISeadon, L. R. 11 G. D. 197 ; 48 L. J. C. 622 ; see Thomson v. Thomhn, 7 Ves. 473. (y) Simpson v. Bloss, 7 Taunt. 246. (s) L. Mansfield, C. J., Browning v. Morris, 2 Cowp. 792 ; Lowry v. Boitrdieii, 2 Doiigl. 471 ; per air. Kearky v. Thomson, L. E. 24 Q. B. D. 746. («) Smith V. Bromley, 2 Doug. 696, n. ; Sieirrs v. Boswell, 3 M. & G. 524 ; 4 So. N. E. 173. ILLEGALITY. 677 ditors pays money to one of them by way of fraudulent pre- Chat, iv. f erence in order to get his consent to the composition (6 ) ; the debtor in pajdng the money is not in pari delicto with the creditor who takes advantage of his position to extort it, and therefore he may recover back the money paid. So where a person pays money to compound a penal action or prosecution against him, though the transaction may be illegal, he is under such compulsion as not to be in pari delicto with the receiver, and may recover back the money (c). If part of the consideration is illegal, and the promise is illegality not divisible and apportionable to the several parts, the whole considera- contract is void ; as a promise made partly in consideration of a separation between husband and wife {d); or a contract for the hiring of a housekeeper made partly in consideration of illicit cohabitation (e) ; or an indemnity against the costs of an action given in consideration of publishing a libel and defending the action for the publication (/). A contract to pay a fixed sum for the purchase of the business of law stationer, together with the office of distributor of stamps and collector of taxes, was held wholly illegal as involving the purchase of a public office ; the price not being apportion- able {g). — If the promise is divisible and apportionable to the several parts of the consideration, it may be supported so far as attributable exclusively to a valid consideration ; as a bill of exchange given for a sum composed of two distinct debts, one of which is founded upon an illegal and the other upon a legal consideration, which is valid to the amount of the legal debt, though void as to the residue (Ji) . But where a bill was given for the balance of a debt, part of which was for an (b) See ante, p. 669, n. (o). (e) The King v. Northwingfield, 1 (c) Williams V. SedUy, 8 East, B. & Ad. 912 ; see ?F»%ams v. i?MW- 378; Vnwin v. Leaper, 1 M. & G. more, 32 Beav. 574 ; 33L. J. C. 461. 747; IVy, J., Davies v. London ^- (/) Shuclcell v. Hosier, 2.'BiTig.'S. Prov. Ins., L. R. 8 C. D. 477 ; 47 L. C. 634 ; see Zound v. Grimwade, L. J. 0. 511 ; see & p. Wolverhampton B. 39 0. D. 613 ; 57 L. J. C. 725. £k., L. R. 14 Q. B. D. 32. (g) Hopkins v. Prescott, 4 0. B. (d) See Jones v. Waite, 5 Bing'. N. 578 ; ante, p. 624. C. 351 ; ante, p. 547. (h) Ex p. Mather, 3 Ves. 373 Exp. Buhner, IS Ves. 313. 678 THE MATTER OF CONTRACTS. Past III, illegal consideration, it was held that the amount was not apportionable and the bill wholly void (i). lUegality Where a contract contains several promises, or a promise in part of n i * i 'n i * promise, to do several matters, some of which are illegal, a promise which can be separated from the illegality may be vaUd. " The general rule is that where you cannot sever the illegal from the legal part of a covenant, the contract is altogether void ; but where you can sever them, whether the illegality be created by statute or by the common law, you may reject the bad part and retain the good " (k). So " a bond may be good, though the condition is good in part and illegal in part"(^). An agreement to assign all offices of which the party should be possessed, was held good as to all offices which might be legally assigned (»;) . A covenant in a lease to pay rent " clear of aU taxes whatsoever," was held good, except as to the property tax and such taxes as could not be legally paid by the tenant (n). A contract which operates in terms as an unreasonable restraint of trade is construed, if possible, divisibly as to the limits of restraint, and is held valid within reasonable limits (o). — Contracts of .service im- pliedly import that the service must be lawful and used for a lawful purpose. A printer engaged to print a work may refuse to print libellous matter, and may charge for printing the rest of the work (p). A seaman engaged to serve in a ship may quit the ship if it is used for an illegal voyage, and claim as for a wrongful dismissal (q) . — Upon the same prin- ciple a conveyance of property which as to part of the sub- ject is illegal, may be supported as to so much of the subject as can be legally conveyed, though the consideration may not be apportionable ; as the grant of an advowson, vrith nest presentation, of a vacant benefice, which is valid as to the (i) Scott V. Gillmore, 3 Taunt. 226. & B. 678. (/c) Willes, J., Pickering v. Ilfra- (») QaskeU v. King, 11 East, 165 ; combe R., L. B. 3 C. P. 250 ; 37 L. J. sec ll'igg v. Shuttleworth, 13 lb. 87 ; C. P. 123; Gibbs, C. J., Doe v. Sowe Y.Si/nge,lbIbAiQ; post,-g.Q'J9. ntcher, 6 Taunt. 369. (p) See ante, p. 638. [I) Bayley, B., Wood v. Benson, 2 [p) Clay v. Yates, 1 H. & N. 73 ; C. & .J. 99 ; Newman v. Newman, 4 25 L. J. Ex. 237 ; ante, p. 47. M:. & S. 60. (y) n,ii-ton V. Pinkn-ton, L. E. 2 ()«) Harrington ». Kloprogge, 2 B. Ex. 340 ; 36 L. J. Ex. 137. ILLEGALITY. 679 advowson, though illegal and void as to the next presenta- Chap. IV. tion (r). So a mortgage or charge of property with a cove- nant for payment, though illegal and void as to the security given, may be valid as to the personal covenant (s). And a mortgage deed by a corporation, which was ultra vires as a charge upon property, was held valid as to the covenant {t). A contract is discharged by illegality supervening after it Effect of is made, which may be caused by an Act of Parliament or super- other Act of public authority («). " The difference where an ''^'""S- Act of Parliament wiU 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 vice versa, if he covenants to do a thing which is lawful, and an Act of Parliament comes in and hinders him from doing it, the covenant is repealed. But where a man covenants not to do a thing which was unlawful at the time of the covenant, and afterwards an Act makes it lawful, the Act does not repeal the covenant "(«). A cove- nant by the tenant of land to pay rent without any deduction of taxes was held to extend to taxes of a like kind imposed by a subsequent Act, authorising but not compelling a tenant to deduct them, and therefore leaving the covenant in full force (y) ; but if the Act compelled the deduction, as with the property tax, the deduction would be unlawful, and the cove- nant would be so far repealed (z). Where premises were let " with the right and liberty to store cartridges therein," and an Act was afterwards passed making it illegal to do so ; it was held that there was no breach of the covenant for quiet enjoyment by the lessor, nor ejectment from the premises ; (r) Greenwood v. Bp. London, 5 {x)'Kolt,G. J., Brewster Y.Eitchin, Taunt. 727 ; see Newman v. Newman, 1 Salk. 198 ; 1 L. Raym. 321 ; Wynn supra. V. Shropshire By., 5 Ex. 420 ; New- (s) Mouys V. Bea/ce, 8 T. R. 411; ington Loc. Bd. v. Coltingham Loc. Kerrison v. Cole, 8 East, 231. Bd., 12 0. D. 725 ; 48 L. j. C. 226. {t) Payne v. Brecon, 3 H. & N. (y) Brewster v. Eitchin, supra. 572 ; 27 L. J. Ex. 495 ; Pickering v. (z) Ante, p. 678, n. («) ; and see Ilfraeombe By., supra. Chaloner v. Bolckow, L. R. 3 Ap. Ca, («) See ante, p. 612. 933 ; 47 L. J. 0. P. 562, 680 THE MATTER OF CONTRACTS. Faet III, nor was there any implied warranty or condition in the lease that such use of the premises should continue lawful («). A contract with the promoters of a projected company to pay all the costs of obtaining their Act, was held not to be affected by the usual clause in the Act that the company should pay the costs of obtaining it ; for the effect of the contract was to leave no costs upon which the clause could operate (b) . Where an Act of Parliament repeals a prior covenant by rendering the performance illegal, there is no right to compensation as for a breach, otherwise than may be provided in the Act (c) . — Foreign Illegality supervening by the law of a foreign country in which the contract is to be performed does not, in general, excuse a breach of the contract ; the foreign law may render it impossible in fact to perform the contract, but affords no excuse for non-performance, unless expressly or impliedly excepted from the contract (d). {a) Newby v. Sharpe, L. B. 8 C. D. 670. 39; 47L. J. C. D. 17. (c) Per cur. Wijtm t. Shropshire [b) Savin v. Soylake Ry., L. E. 1 TJnionSy., supra. Ex. 9 ; 36 L. J. Ex. 52 ; see Shaw's [d) See anU, p. 614. claim, L. R. 10 Ch. 177; 44 L. J. C. 681 PART IV. THE DISCHAKaE OF CONTBACTS. Chapter I. RESCISSION BY NEW AGREEMENT. PAGE Discliarge of contracts 681 Kescission and variation ty new agreement — implied rescis- sion 682 Novation by acceptance of new debtor — tran.sfer of policies of insurance — change in firm of partners 684 Form and requirements of new agreement — contracts in writing — bills of exchange , 686 Contracts within the Statute of Frauds — effect of parol variation — parol rescission — dispensation of performance 688 Contracts under seal — alteration of deed by parol agree- ment 692 Effect of new agreement iu discharging surety 693 The discharge of contracts, including in that term aU modes Discharge of determining the liability, involves different considerations tracts. as it occurs before, at the time, or after the performance has become due. A contract may be discharged before it is due by events happening which are expressly or impKedly excepted from the liability, or which operate as conditions subsequent determining the liability. These modes of discharge are provided in the contract itself and have been already noticed as exceptions and conditions of the contract {a). A contract may also be discharged before it is due by a new agreement of the parties rescinding or altering the terms ; so that the («) See ante, pp. 581, 606. 682 DISCHARGE OF CONTRACTS. Paei iy. claim to performance of the original contract may be met by the new agreement; and if the contract has been put in writing, it may be practically discharged under certain cir- cumstances by the cancellation or alteration or by the loss of the deed or instrument that embodies the terms. — When the contract is due, it may be discharged by exact performance of the terms ; or by tender of such performance, if the other party refuses to accept it. A breach of the contract also dis- charges it in the sense that, to the extent of the breach, it converts the contract into a claim for damages in compensa- tion .for the defective performance ; or, at least, a claim to have the contract performed with such equitable qualification as may be necessitated by the default. The claim or right of action arising upon a breach of contract can no longer be satisfied by a performance or tender of the debtor without the agreement of the creditor to accept it in satisfaction ; but it may be discharged by an accord and satisfaction made with the creditor ; or by a release given by him ; or by a judgment recovered by him. It may also become barred by the Statutes of Limitation ; or it may be met by a claim of set-ofE ; or by a discharge in bankruptcy. The modes of discharge above noticed form the subjects of the several chapters of this Part. Rescission A Contract may be discharged at any time before the per- formance is due by a new agreement validly made, having the effect of altering the terms of the original agreement, or of rescinding it altogether (b). Thus, mutual promises to marry are discharged at any time before a breach by a mutual agreement to rescind the promises (c). And a settle- ment made in contemplation of the marriage is rendered inoperative by the rescission (d). A separation deed between husband and wife is rescinded by their return to cohabitation, as to all the provisions of the deed which depend upon the separation (e). If a contract is rescinded by agreement after (J) Maule, J., Meniaefv. Beade, 7 {d) Epcry v. Oou'hrd, L. R 26 C C. B. 139. D. 191 ; 53 L. J. C. 661 : Bond v. (c) King V. Gillett, 5 M. & W. 55 ; V'nlford, L. R. 32 C. D. 238 • 55 L post, p. 686, u. (h). J. C. 667. (e) See ante, p. 662, n. (o). RESCISSION BY NEW AGREEMENT. 683 a part performance or part payment of the consideration, any CHAr. i. claim in respect of the part performance or part payment must be referred to the agreement of rescission ; and in general no such claim can be made, unless expressly or impliedly reserved upon the rescission (/). — The subsequent AJteration agreement may affect parts only of the former contract, leaving the original contract in other respects to stand ; and consequently the new agreement may have to be construed with reference to the original contract {g) ; and so far as the later agreement is inconsistent with the former contract it must be taken to rescind it (A) . As a simple guarantee for the payment of goods sold to a third party, and a subsequent agreement that the guarantor should accept a bill at a certain date in payment for the goods («). Where a contract was made for building to be completed by a fixed day under penalties for delay, a subsequent agreement for additional work which rendered it impossible to complete within the time, was held to operate as a waiver of the former stipulation as to time and a discharge of the penalties [k) . — The subse- Conditional quent agreement may operate as a conditional discharge of the original agreement, so that the later agreement failing the former contract is restored to its full effect (/). Thus the acceptance of a new lease by a tenant operates as a surrender in law of his existing lease ; but which is conditional upon the new lease being valid (m). The rescission of a contract may in some cases be implied by implied the mere non-performance for such lapse of time or under such circumstances as manifest the intention of abandoning it («) . Thus mutual promises to marry were held to be resciaded by (/) See ante, p. 52 ; Patmore v. 831 ; see Jones v. St. John's Coll Colburn, 1 C. M. & R. 65. L. E. 6 Q. B. 115 ; 40 L. J. Q. B. (ff) Erie, C. J., Carr v. Wallachian 80 ; ante, p. 599. Co., L. R. 1 C. P. 640 ; 35 L. J. C. P. {I) Firth v. Midland Ry., L. E. 20 314 ; see Sunt v. -S. E. Stj., 45 L. J. Bq. 100 ; 44 L. J. C. 313. C. P. 87 ; Lawes v. Lawes, L. K. 9 (m) Per eur. Wilson v. Sewell, 4 0. D. 98. Burr. 1980 ; Roe v. Ahp. I'ork, 6 (;») Patmore v. Colburn, supra; Tiast, 86 ; Doe v. Cotirtenai/, 11 Q B Tai/lor V. Bilanj, IG.M. & Bj.lil; 702; Doe y. Poole, U Q. B. 113. Sanderson v. Graves, L. R. 10 Ex. 234 ; (»») Rushbrook v. Lawrence, L. R. 5 44 L. J. Ex. 210 ; post, p. 689. Oh. 3 ; 39 L. J. C. 93 ; Hills v. Say- (i) Taylor M. Hilary, supra. wood, L. R. 6 C. D. 196; see post (k) ThornhiU v. Neais,i C. B. N. S. p. 728. rescission. rescission. 684 DISCHARGE OF CONTRACTS. Paet IV. three years' oohabitation of the parties without marriage (o). Where an agreement had been made between a mortgagor and mortgagee for the former to give up possession and release all his interest to the mortgagee, which was not acted upon, and twelve years afterwards the mortgagee sold under his power as mortgagee, it was held that the agreement had been abandoned and that the mortgagor retained the equity of redemption and was entitled to the surplus of the purchase money {p). Where land had been sold in lots, subject to covenants with the vendor not to carry on the trade of a beershop, and the vendor afterwards suffered beershops to be opened and himself supplied them with beer, he was held to have waived and rescinded the covenants over all the lots [q) . Where a buyer of goods for future delivery gave notice to the seller of his insolvency, it was held that the seller was justified in presuming an offer to abandon the contract and in accepting the abandonment, in the absence of any notice by the buyer of his intention to maintain the contract (r) . NoTation The discharge of a contract by a new agreement may occur anceofnew with the intervention of a third party, who undertakes the debtor. liability of the contract and is accepted by the creditor in place of the original debtor ; a mode of discharge which is Transfer of designated by the term novation [s). — Questions of novation insurance, have arisen upon the transfer of business between insurance companies, with reference to the assent of the policy-holders. A company by the terms of their constitution may have the power to transfer their business and liabilities without the consent of the policy-holders ; in which case the holders may be bound by a transfer duly made, and the company dis- charged it). Where the company have no such power and a (o) Bondv. Walford, L. R. 32 C. D. L. E. i C. D. 108 ; 46 L. J. C. 115 ; 238; 55 L. J. C. 667. cited post, p. 754. {p) RushbrooJc v. Lawrence, supra. (s) Selborne, L. C, Scarf v. Jar- (}) Xelsei/ V. Dodd, 52 L. J. C. 34 ; dine, L. B,. 7 Ap. Ca. 361 ; "51 L. J. see Riehards v. Revitt, L. !R. 7 C. D. Q. 15. 612 ; p.Qe post, p. 759. 224 ; 47 L. J. C. 472. (t) Sort's case, L. R. 1 C. D. 307 ; (r) Morgan y. Bain, L. R. 10 0. P. Grain's case, ib. 316 ; Sariiian's case, 15 ; 44 L. J. 0. P. 47 ; see Eeineley ib. 326 ; 45 L. J. C. 321 ; Dou-se's V. mrle, 8 E. & B. 410 ; 28 L. J. case, L. R. 3 C. D. 384 ; 46 L. J. C. Q. B. 79 ; Re Phoinix Bessemer Co., 402. RESCISSION BY NEW AGREEMENT. 685 transfer is made, it tecomes a question of fact whether any Ch^- I- policy-holder adopts the transfer to the extent of discharging the transferring company or not. The mere payment of the premiums to the new company and taking receipts in their name by direction of the transferring company, though suffi- cient payment to keep up the policy, is not, without special circumstances, an acceptance of the new company by the policy-holder sufficient to operate as a discharge (u). But procuring an indorsement by the new company of their liabi- lity (x) ; payment of premiums and taking receipts of the new company for fifteen years after notice of the transfer (y) ; accepting a bonus from the new company (s) ; claiming the policy money against the new company («) ; have been held sufficient to constitute novation. In the case of annuities granted by an insurance ofiice the mere acceptance by the grantee of payment by the new office is not a novation {b) . — By " The Life Assurance Companies Act, 1872," 35 & 36 Vict, c. 41, s. 7, it has been enacted generally that "where a com- pany has transferred its business to or been amalgamated with another company, no policy-holder shall, by reason of any payment made or act done after the passing of the Act, be deemed to have abandoned his claim against the one company or to have accepted in lieu thereof the liability of the other company, unless such abandonment and acceptance have been signified by some writing signed by him or by his agent law- fully authorized." Questions of novation also arise upon changes occurring in change in partnerships, with reference to the consent of customers to p^ners, accept the new firm as debtors instead of the old. A customer who continues to deal with a firm after notice of a change (m) Conquest's case, L. E. 1 C. D. (z) He Times Life Ass., L. E. 5 Ch. 334 ; 45 L. J. C. 336 ; Se Manchester 381 ; 39 L. J. C. 527 ; He Anchor and London Ass., L. R. 5 Ch. 640 ; Ass., L. E. 5 Ch. 632 ; Spencer's case, 39 L. J. C. 595 ; Griffith's case, L. E. L. E. 6 Ch. 362 ; 40 L. J. C. 455. 6 Ch. 374 ; 40 L. J. C. 464. (a) Se National Provincial Ass., L. (x) Se International Ins., L. E. 9 E. 9 Eq. 306 ; 39 L. J. C. 250. Eq. 316 ; 39 L. J. C. 295 ; Se United {/>) Se Family Endowment Soe.,l,.'R. Forts Ins., L. E. 16 Eq. 354 ; Miller's 5 Ch. 118 ; 39 li. J. 0. 206 ; Se India case, L. E. 3 C. D. 391. and London Ass., 1 Ch. 651 ; 41 L. {y) Cocker's case, L. E. 3 0. D. 1 ; J. C. 601. 45 Xi. J. C. 822. 686 DISCHARGE OF CONTRACTS. Part IV. in the partners is presumed to accept the new firm as his debtors (c). If he continues to deal with the firm without having notice of the change, he credits the original partners ; but on receiving notice of the change he may charge the partners who in fact incurred the debt in the name of the firm as being the real principals ; and if he elects to charge them, he cannot afterwards charge the original partners ; but if he deals with the firm after notice of the change, he cannot charge the retired partners with the new debts (d). Where a servant or agent of a partnership upon a change in the part- ners accepts employment under the new firm, he mu^t be taken to discharge the old firm (e). Form and require - meuts of new agree- ment. Considera- tion. Consent of both parties. The new agreement in rescission or alteration of a prior contract must in general satisfy all the requirements of an independent contract. — The rescission or variation of a former agreement, so long as it remains executory, will in general form a sufiioient consideration for a subsequent agreement (/) . But where a person, being indebted on a promissory note payable on demand with interest, agreed to pay the amount by quarterly payments with interest, it was held that such agreement was a mere voluntary forbearance by the creditor, which fifforded no answer to an action upon the note {(/). — The consent of both parties must be given to the new agree- ment. In pleading at common law it was admissible for a defendant charged with the breach of a promise to allege that before breach the plaintiff exonerated and discharged him from the said promise, without further alleging an agreement on his part to accept the discharge ; but it was necessary to prove a mutual agreement in order to support the plea (A). A person who has contracted to sell goods and (c) Sart V. Alexander, 2 M. & W. 484 ; Kirwan v. ICinvan, 2 C. & M. 617 ; see Hx p. Gil/son, L. E. 4 Oh. 662 ; 38 L. J. C. 673 ; Wilson v. Zloi/il, L. R. 16 Eq. 60 ; 42 L. J. C. 559 ; Eolfe v. Floioer, L. B. 1 P. 0. 27 ; Bilborough v. Holmes, L. R, 5 C. D. 2.'j5 ; 46 L. J. G. 446. (il) Scarf V. Sardine, L. R. 7 Ap. Ca. 34 5; 51 L. J. Q. B. 612; ante, p. 457 ; see the Partnership Act, 1890, s. 36. {e) Sohson \. Cowley, 27 L. J. Ex. 205. {/) Fer car. Foster y. Dawter, 6 Ex. 851. (g) M'Jirniius v. Bark, L. R. 5 E.s:. 65 ; 39 L. J. E.x. 65. (h) King v. Gilktt, 5 M. & "W. 55 ; see Dobson v. Rpie, 2 H. & N. 79 ; RESCISSION BY NEW AGREEMENT. 687 deliver them at a future date cannot discharge his liability Chap. I. by giving notice to the buyer that he will be unable or unwilling to deliver the goods, unless the buyer assents to such notice in rescission of the contract («). Nor can the buyer anticipate, or discharge his liability by giving notice to the seller of his intended refusal to accept delivery, unless the seller accepts the notice as a rescission (k). If the original contract was put in writing merely by Contracts 4. £ i.1. ^- J i • / inwriting. agreement oi the parties and not m pursuance oi any statutory requirement, the new agreement in alteration or discharge is not required to be in writing, and may be proved by parol evidence. " By the general rules of the common law, if there be a contract which has been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add to, or subtract from, or vary or qualify the terms of it, and thus to make a new contract, which is to be proved, partly by the written agreement, and partly by the subsequent verbal terms engrafted upon what will be thus left of the written agreement" (1). — A new New- agreement in writing may require a new or additional stamp, r^^ng' without which it cannot be put in evidence ; as a policy of s*^™P- insurance which had been altered by the parties, pending the risk, from " ship and outfit " to " ship and goods " (m) ; but it was held that the alteration apparent upon the face of the policy was effectual to discharge the original contract, though the altered policy could not be charged for want of a stamp (w) . And generally in an action upon a contract, if it appears that a subsequent agreement has been made affecting the contract charged, it becomes necessary to prove the later agreement in order to show that the former remains in force ; which cannot 26 L. J. Ex. 240 ; Seis t. Scottish (k) Fhillpotts v. Evans, 5 M. & "W. Equitable Ass., 2 H. & N. 19 ; 26 475 ; Fitt\. Cassanet, 4 M. & G. 898 ; L. J. Ex. 279. post, p. 752. (») Leigh v. Paterson, 8 Taunt. .540; (t) Per cur. Goss v. Lord Nugent, 5 2 Moore, 588 ; Brown v. Mulkr, L. B. & Ad. 65. K. 7 Ex. 319 ; 41 L. J. Ex. 214. (m) mil v. Patten, 8 East, 373. [n) French v. Patten, 9 East, 351. 688 DISflHARGE OT CO:STRA.CTS. Bills of exchange. Part IV. be done if it wants a stamp. " The Court may, in all cases, so far allow parol evidence of a written agreement as to ascertain that it relates to the subject-matter in discussion. If, indeed, the plaintiff gets through his case without giving the defendant any opportunity of mentioning the written agreement, the latter must produce it, and he cannot avail himself of it unless it be duly stamped" (o). In the case of bills of exchange, by the law merchant, the holder of a bill might discharge the liability of the acceptor or any other party, before or after the maturity of the biU, by an express renunciation of his right ; without writing, and without consideration, and without delivery of the bill (ij).— The Bills of Exchange Act, 1882, (which by sect. 89 applies to promissory notes,) now enacts, s. 62, sub-s. (1), "When the holder of a bill at or after maturity absolutely and unconditionally renounces his rights against the acceptor the bill is discharged. The renunciation must be in writing, unless the bill is delivered up to the acceptor." — Sub-s. (2), "The liabilities of any party to a bill may in like manner be renounced by the holder before, at or after its maturity ; but nothing in this section shall affect the rights of a holder in due course without notice of the remmcia- tion." — A promissory note payable on demand is " at maturity" from its date within this enactment (j) . The writing must express an absolute and unconditional renun- ciation of right; and a memorandum expressing an inten- tion and direction " to destroy the note as soon as found " was held not to be such (r) . Contracts The Statute of Frauds requires that certain contracts shall statute of he evidenced by writing and signature ; consequently, a new Frauds. agreement altering the terms of such a contract, or dis- charging it in part only, is also within the statute and must (o) Littledale, J., Jieed v. Deere, 7 B. & C. 261 ; Sweeting v. Ilahe, 9 B. & C. 365. [p) Foster v. Dawber, Ex. 839; Willes, J., Cook v. Lister, 13 C. B. N. S. 593 ; 32 L. J. C. P. 126. (-?) Re George, L. R. 44 C. D. 627 ; 59 L. J. C. 709. ()') lie George, supra. RESCISSION BY NEW AGREEMENT. 689 satisfy the statutory requirements ; and no action can be Chap. i. brought upon a written contract within the statute with a parol variation (s). The new agreement not satisfying the statute, so long as it remains executory, is not allowed to be good as a contract, and the original contract remains in force it) . But if the new agreement is carried into execu- tion, whatever is done under it is referable to that agreement, and not to the original contract (u). — There is no difference in this respect between terms of the original contract which are within the statute and terms which, taken alone, are not ; an alteration of the contract in any term must be made in writing {x). And for this purpose " everything for which the parties stipulate as forming part of the contract must be deemed to be material "(«/). Accordingly, under a contract in writing for the sale of land, it is not admissible to prove a subsequent verbal agreement to waive the title as to part of the land (s) ; or to substitute a different day for com- pletion [a) ; or a different mode of paying the purchase- money (S). Under a written contract for the sale of goods, within the statute, it is not admissible to prove a verbal agreement to extend the time for delivery (c) ; or to vary the place or the mode of delivery {d). Under a written contract of service for more than a year at an annual salary, it was not admitted to prove a subsequent verbal agreement that the salary should be paid quarterly (e). Under a lease within the statute, stipulating that the straw should be taken at a valuation, the mode of valuation cannot be varied with- [s) Per cur. Goss v. Zord Nugent, 6 6 M. & W. 117. B. & Ad. 66 ; Stead v. Dawler, 10 A. («) Goss v. Lord Nugent, supra. & E. 57 ; JPhvins t. Downing, L. K. (a) Stouell v. JRobinson, 3 Bing. 1 C. P. D. 220 ; 45 L. J. C. P. 695. N. C. 928. {i) See ante, p. 255 ; Noble v. Ward, (b) Caima, L. C, Jliissey v. Sorne- L. E. 2 Ex. 136 ; 36 L. J. Ex. 91 ; Fagiie, L. R. i Ap. Ca. 320 ; 48 see Moore v. Campbell, 10 Ex. 323 ; L. J. 0. 846. 23 L. J. Ex. 310. {c) Stead v. Dawber, supra; Mar- (u) Sanderson v. Graves, L. R. 10 shall v. Zynn, GM. &'W. 109; Plevins Ex. 234 ; 44 L. J. Ex. 210 ; see ante, v. Downing, supra; see post, p. 691. p. 254. {d) Moore v. Campbell, 10 Ex. 323 ; (x) San eg v. Grabham, 5 A. & E. 23 L. J. Ex. 310. 61. (e) Giraiid y. Richmond, 2 C. B. (tj) Parke, B., Marthall v. Lynn, 835. I,. Y Y 690 raSCIIAKGK or CONTRACTS. Paet IV. Operation of the statute in equity. Effect of parol variations. Parol rescission. out writing (/). — The application of the statute in equity is the same in this respect {g). A written contract for the sale of a house, with' a subsequent verbal agreement for a restric- tive covenant as to the use of the house, could not be enforced against the objection of the statute [h). So with an agree- ment in writing for a lease for a certain term, and a subse- quent verbal alteration of the commencement of the term («'). — "Variations verbally agreed upon are not sufficient to pre- vent the execution of a written agreement ; the situation of the parties in all other respects remaining unaltered" (A-). But part performance of the verbal agreement may take it out of the statute, and admit it to proof in answer to the claim to execution of the original written agreement [1). And a plaintiff having claimed upon the written agreement is not entitled to fall back upon the variation so proved, unless the defendant consents [ni) . Where a plaintiff claims specific performance of a written contract, at the same time stating and offering to submit to subsequent parol variations the Court will decree specific performance with the variations, if the defendant is willing to accept them; and if not, accord- ing to the original contract (w) . A total rescission and discharge of the written contract on both sides may be effectually made by a mere verbal agreement to that effect, though the original contract is one within the statute ; for all that the statute enacts is that no action shall be brought upon such contract unless it is 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 may still be waived and abandoned by a new agreement not in writing, so as to prevent either party from recovering on the contract (/) Harvey v. Grahham, 5 A. & E. 61.' ((7) Truro, L. C, Emmett v. Dcw- hiirst, 3 M. & (-i. 597. (A) Stu-Uinri V. Thomas, L. H. 17 Eq. o03 ; 43 L. J, 0. 506. (>) Jurclan v. Sawkins, 1 'Ves. jun. 402. (/■) Grant, M. R., Price v. Dyer, 1 7 'Ves. 364 ; Mobimon v. Page, 3 Russ. 121. [l) See ante, p. 259 ; Lcya^ v. Miller, 2 Ves. sen. 299 ; Grant, M. R., Fricc X. IJyrr, supra. (ill) Legal v. Miller, supra. (») Robinson v. Page, supra. RESCISSION BY NEW AGKEEMENT. 691 which was in writing " (o). But a parol agreement in varia- Chap. I. tion or substitution of a written contract, which cannot take effect as a new contract for want of writing, will not operate in rescission of the former, unless iutended and expressed to do so absolutely {p). There is a distinction between an alteration in a written Dispensa- contraot, and a dispensation or variation of performance formauce. acceded to by one party at the request of the other, with- out any binding agreement to that effect; which may be proved by parol evidence as being equivalent to performance. Thus if the seller of goods, being ready and willing to deliver according to the contract, forbears the delivery at the request of the buyer, there is no variation of the contract, but a dis- pensation of performance by the buyer to the extent of his request {q). But if the seller requests delay in delivery and the buyer assents, the seller can no longer rely upon the original contract because he is not ready and willing to de- liver according to the terms ; and he can bring no action upon the contract with the variation, unless it is proved in writing (r). So if the buyer, being ready and wilhng to accept the goods, forbears his claim at the request of the seller, he performs the contract as against the seller, who is precluded by his request from objecting to the delay (s). In such cases the original contract is unaltered, and the arrange- ment has reference only to the mode of performance ; but the consequence is that the measure of damages for non-delivery or non-acceptance of the goods depends upon the value at the time the contract is put in force, instead of the time appointed in the contract (^). — Upon the same principle the seller of goods may discharge the contract on his part by (o) Fer cur. Goss v. Lord Nugent, 5 195 ; 44 L. J. Ex. 130 ; Hickman v. B. & Ad. 65 ; see Gorman v. Salisbury, Haynes, L. R. 10 C. P. 598 ; 44 L. J. 1 Vera. 240 ; Grant, M. R., Price v. 0. P. 358. Dyer, 17 Ves. 363. {r) See Pkvins v. Downing, supra; {p) Noble V. Ward, supra; Robin- Stead -v. Dawber, 10 A. & E. 57. son V. Page, supra. (s) Ogle v. Vane, L. R. 3 Q. B. (?) Per cur. Pleoins v. Downing, 272 ; 37 L. J. Q. B. 77. L. &. 1 C. P. D. 225; 45 L. J. C. P. [t] Ogle v. Vane, supra; Hickman .695; Cuff V. Penn, 1 M. & S. 21 ; \. Haynes, supra. See ^os<, p. 913. Tyers r. Rosedale Co., L. R. 10 Ex. y2 692 DISCHAEGE OF CONTRACTS. Pabt IV. delivering the goods at a different place or by different means than is originally provided, with the consent of the buyer, which need not be in writing (ii) . Contracts under seal. Parol agreement in varia- tion of deed. By a technical rule of the common law a contract contained in a deed under seal cannot be rescinded or varied by an agreement not under seal (x). A covenant to complete certain works within a limited time could not be effectively altered by a mere verbal agreement to enlarge the time [y). A cove- nant by a vendor of land to show a good title by a certain day could not be enlarged by a parol agreement to a future day (s). A covenant in a lease to give up at the expiration of the term all improvements made during the term, was not discharged, as to a greenhouse built diiring the term, by a parol agreement with the lessor that the lessee might build and remove it (a). A covenant not to carry on a certain trade or business could not be dispensed with by the mere leave and licence of the covenantee {b) . But a bond or cove- nant might be effectually varied or discharged by a subse- quent deed under seal referring to the former ; and the two deeds are then read and construed together according to their terms (c) . A parol agreement in discharge or alteration of a contract under seal might be effectual at common law for all purposes extrinsic to the deed. It might operate in dispensation of performance, with the effect of excusing a default under the deed(<^). It might operate as a distinct contract giving a substantive cause of action for a breach (e). Thus, an agree- («) Leather Cloth Co.Y.Sieromjmus, L. E. 10 Q. B. 140 ; 44 L. J. Q. B. 64. {z) See ante, p. 131 ; Rutland's case. 5 Co. 26 a ; Make's case, 6 Rep. 43 b Kaye v. Waghorn, 1 Taunt. 428 Tindal, C. J., West v. JSlalceway, 2 M. &G. 751. {y) Littler v. Holland, 3 T. E. 590 ; Cordwent v. Smit, 8 Taunt. 596 ; Guymte v. Davij, 1 M. & G. 857. [z) Jiippini/hall v. Lloyd, S B. & Ad. 742. {a) West V. Blaketcay, supra ; see Moss V. James, 47 L. J. C. P. 160. (b) Maulinson v. Clarke, 14 M. & W. 187. (f) Greig v. Talbot, 2 B. & C. 179 ; see Berwick v. Oswald, 1 E. & B. 309 ; 22 L. J. Q. B. 129. {d) Albert v. Grosvcnor Investment Co., L. R. 3 Q. B. 123; 37 L. J. Q. B. 24 ; see Williams v. Stern, L. K. 5 Q. B. D. 409 ; 49 L. J. Q. B. 801. (c) Per cm: Braddick v. Thompson, 8 East, 34G. KESCTSSION BY NEW AGREEMENT. 693 ment to take goods in payment of money due under a deed Chap. i. would be valid as regards a warranty of the goods so delivered, though invalid in law in discharge of the deed (/). And forbearance of rights under a deed is a good consideration for a promise, though ineffectual in altering the deed unless con- tracted under seal (g) . After a breach of covenant has been committed a parol agreement duly performed may discharge the right of action by way of accord and satisfaction {h). — The above technical rule of law was disregarded in equity ; Effect in and an injunction would be granted to restrain an action upon a deed in breach of the terms of a subsequent agreement. Now under the Supreme Court of Judicature Act such an agreement may be pleaded in answer to any proceeding upon the original deed ; and the rule of the common law that a contract under seal cannot be varied or discharged by a parol agreement is thus practically superseded. A new agreement with the debtor in variation or discharge Effect of of a former contract operates in discharge of a surety who ment^m^^' has guaranteed its performance ; and he is not affected with ^ischarg- any liability in respect of the substituted contract, unless with full knowledge of all the circumstances he consents to continue surety under it {€) . If the creditor by a new contract with the debtor, without the consent of the surety, enlarges the time of payment, or suspends the remedy, the surety is discharged (k) ; or if he advances money to the debtor upon shorter credit than stipulated for (^) ; or if he discharges or dispenses with any of the securities for the debt stipulated for in the contract (m). Payment to a contractor for instalments (/) Smith V. BaHams, 26 L. J. 540 ; 2 W. & T. L. C. 5th ed. 992 ; Ex. 232. Eldon, L. C, Samuell v. Eowarth, (g) Nash T. Armstrong, 10 0. B. N. 3 Mer. 272 ; Clarke v. Birley, L. K. S. 259 : 30 L. J. C. P. 286 ; Harris 41 C. D. 434 ; 58 L. J. C. 616 ; Moss V. Gooduyn, 2 M. & G-. 405. v. Ball, 5 Ex. 46 ; Bolton v. Bucken- Ih) Campbell, C. J., Smith v ham, (1891) 1 Q. B. 278 ; 60 L. J. Trowsdale, 3 E. & B. 83 ; 23 L. J. Q. B. 261 ; ante, p. 385. Q. B. 107 ; see post, p. 755. [I) Bonsery. Cox, 6 Beav. 110. (i) Nash V. Armstrong, supra ; (m) Mayhew v. Grickett, 2 Swanet. " T. Steeds, L. R. 22 Q. B. D. 193 ; Bcmser\. Cox, supra; Esans-v. 537 ; 58 L. J. Q. B. 302. Bremridge, 2 K. & J. 174 ; 26 L. J [k) Sees v. Berrington, 2 Ves. jun. C. 102 ; Folak v. Everett, L. R, 1 Q. 694 DISCHAKGE OF CONTRACTS. Paet IV. of work before the stipulated time discharges a guarantee of the contract («) . But enlarging credit to the debtor on one occasion under a contract for periodical deliveries of goods ■was held not to affect the guarantee of payment for subse- quent deliveries under the same contract (o). A power of enlarging the credit given in the contract must be exercised before the original credit has expired, in order to preserve the guarantee (^). And if the surety expressly stipulates for certain conditions, the non-performance of them discharges his liability, irrespectively of their value ; as a condition to insure the work guaranteed as it proceeds {q) ; or to enforce the debt against the principal within a certain time (r). The Court will not entertain the question of the materiality of the variation in the contract guaranteed ; and unless it is self- evident that it is not material or prejudicial to the surety, he is left to be the sole judge whether he will consent to remain liable (s) . A discharge of the surety by any of the above means discharges also any security which the surety may have given (<). — But consent of a creditor to the discharge of the debtor in bankruptcy, or by liquidation or composition under the Bankruptcy Acts, does not have the effect of dis- charging a surety; because the discharge in such cases is effected by operation of law {u) . And an agreement with a third party to give time to the principal debtor has no effect Notice of in discharging a surety (a^). — Although the creditor has originally dealt with the surety as a principal, as in taking a joint note or security of the debtor and surety, without notice B. D. 669 ; 46 L. J. Q. B. 218 ; see L. J. Ex. 35. Taylor v. N. 8. Wales Bank, 55 L. J. (s) Solme v. BrunskiU, L. R. 3 Q. P. C. 47 ; and see ante, p. 385. B. D. 495 ; 47 L. J. Q. B. 610. (k) General Steam Nav. v. Eolt, 6 (t) Bolton v. Salmon, (1891) 2 Ch. C. B. N. S. 550. 48 ; 60 L. J. C. 237. (o) Croydon Gas Co. v. Siclinson, (u) Browne t. Carr, 7 Bing. 508 ; L. E. 2 C. P. D. 46 ; 46 L. J. 0. P. Ellis v. irUmot, L. R. 10 Ex. 10 ; 44 157. L. J. Ex. 10 ; Simpson v. Henninq, (p) Croydon Gas Co. v. Dickinson, L. K. 10 Q. B. 406 ; 44 L. J. Q. B. supra. 143 ; see Crayoe v. Jones, L. R. 8 Ex. (?) TFatls V. Shutlleworih, 7 H. & 81 ; 42 L. J. Ex. 68 ; post, p. 893. N. 353 ; 29 L. J. Ex. 229. (x) Fraserv. Jordan, 8 E. & B. 303 ; (c) lawreiice v. Walmslcy, 12 0. B. 26 L. J. Q. B. 288 : Clarke v. BirUii, N. S. 799 ; 31 L. J. C. P. 143 ; see L. R. 41 C. D. 422 ; 58 L. J. C. 616. Price V. Kirkham, 3 H. & C. 437 ; 34 RESCISSION BY NEW AGREEMENT. 695 of the suretyship ; yet if he afterwards receives notice of the Chap- I- relation between them, any subsequent variation of the debt or contract guaranteed, without the consent of the surety, will discharge the latter from liability (y). But if the relation of principal and surety between the co-debtors is not created until after contracting the debt, it will not vary their liabilities to the creditor without his consent ; nor will he be affected by merely having notice of it (s) . Upon the same principle where the surety guarantees the Guarantee due performance of an o£B.ce or employment, any material alteration in the office or duties guaranteed, without the consent of the surety, discharges the guarantee (a) : as the substitution of a different office for that guaranteed (b) ; a re-appointment to the same office upon its expiration, as in the case of an annual office (c), unless the guarantee is expressly extended to a continuance in the office {d) ; an enlarging of the duties of the office, as by the statutory extension of the duties of a County Court bailiii (e) ; and a change in the salary of the office, if the amount of salary is made a material stipulation in the guarantee (/). And if the guarantee stipulates that the office shall be determinable at a certain notice, an agreement to extend the notice dis- charges the surety (g). But the undertaking of additional or other duties not included in the guarantee, and not materially affecting the duties guaranteed, does not discharge the guarantee, unless the surety has expressly stipulated against such additional undertakings (/«). [y) See ante, 'p. SSH; Foolet/Y. Sar- 390; Oswald y. JBerwioS;, supra; Dart- radine, 7 E. & B. 431 ; 26 L. J. Q. B. mouth v. Silly, 7 E. & B. 97 ; 26 156; Oriental Finance Corp. t. Overend L. J. Q. B. 90. und Co., L. B. 7 H. L. 348. [e) Pybus v. Gibb, 6 E. & B. 902 ; (j) Swire v. Sedman, L. K. 1 Q. B. 26 L. J. Q. B. 41 ; see Portsea v. D. 542 ; cited ante, p. 386. Whillier, 2 E. & E. 765 ; 29 L. J. {a) Arlington v. Merriehe, 2 "Wins. Q. B. 150. Saund. 414; Oswald v. Berwick, 5 {f^ North Western My. -v. Whinray, H. L. C. 586 ; 25 L. J. Q. B. 383. 10 Ex. 77 ; 23 L. J. Ex. 261 ; see \b) Mailing v. Graham, L. E. 5 Frank t. Edwards, 8 Ex. 220; 22 C. P. 201 ; 39 L. J. C. P. 74. L. J. Ex. 42. (c) Arlington v. Merricke, supra; (g) See Sanderson v. Aston, L. R. T. Lmg, 2 M. & S. 363 ; 8 Ex. 73 ; 42 L. J. Ex. 64. Cambridge y. Dennis, 27 L. J. Q. B. (A) Bonar v. Macdonald, 3 H. L. C. 474. 226 ; Skillett v. Fletcher, L. R. 2 0. P. {(I) Aiigero v. Keen, 1 M. & W. 469; 36 L. J. C. P. 206. 696 DISCHARGE OF CONTRACTS. Chapter II. ALTEEATION AND LOSS OF WRITTEN INSTRUMENT. PAGE Alteration of -written contract by promisee— by a stranger — by accident or mistake 696 Material alterations — immaterial alterations 698 Effect of alteration as between the parties — alterations in bills of exchange 699 Effect as to past operation of instrument — party producing instrument must explain alteration — pleading alteration. . 702 Alteration by consent of parties — in correction of mistake — alteration before iinal agreement 703 Loss of written instrument — loss of bill or note — relief against loss 706 Paet IV. If a contract under seal is altered in a material part by the Alteration promisse, without the consent of the promiser, as by inter- c^r^rartb liii^^tion, addition, erasure, or drawing a pen through a line promisee, or a 'word, it is so far avoided by the alteration, that the promisee is deprived of all benefit of it, as ground either of action or of defence {a). And the same rule applies to con- tracts in writing not under seal {b). Any alteration of a ■written instrument, not authenticated by both parties, may create a difficulty of proof and thereby prejudice the remedy ; but the above rule assigns to an alteration by the promisee the definite penalty of forfeiture of his rights under the instrument; with the object, it is said, of deterring parties from attempting fraud by such means (r). Hence also such (a) Fiffot's case, 11 Co. 27 a ; Shep- England, L. E.. 9 Q. B. D. 639; 61 pard's Touchstone, 68. L. J. Q. B. 401. (i) Master v. Miller, i T. R. 320 ; (c) Kenyon, C. J., Master t Miller- 2 H. Bl. 140; 1 Smith's L. C. 9th ed. 4 T. R. 329. 825 ; Jessel, M. R., Suffell v. Bk. of ALTERATION OF WRITTEN INSTRUMENT. 697 alteration avoids a contract, though the original words of the CnAP. ii. contract remain legible {d). If a deed or contract in writing be altered in a material Alteration part by a stranger to the contract, whilst the instrument is in stranger, the custody of the promisee, though without his knowledge, it is thereby avoided as to his rights under it ; upon the principle that " a party who has the custody of an instru- ment made for his benefit is bound to preserve it in its original state "(e) ; and he is equally affected by an altera- tion made while the instrument is in the custody of an agent holding it for him (/) . Where a guarantee was given to a banking company by some of the directors, and was materially altered by the secretary whilst in his possession, it was held that the possession of the secretary was that of the bank as against the individual directors, and that they were dis- charged by the alteration {g) . But an alteration by a stranger whilst the instrument is not in the custody of a party or of his agent does not affect the validity, beyond creating a difficulty of proving its original condition. Thus where an award duly made and signed by the umpire, and notified to the parties as ready for delivery, wa,s afterwards altered by the umpire in the sum awarded ; it was held that the altera- tion by the umpire after his authority had ceased was the same as if made by a stranger, and the award remained good for the original sum (h). A contract is not affected by an alteration caused by mere Alteration accident ; but the party claiming under it must prove the dent?"^' accident and the original state of the instrument ; as in the case of the seal of a deed being torn off by a child, or eaten off by rats («') . — So, an alteration may be explained to have Mistake, been made by mistake, without any intention of affecting the contract ; as where the indorsement of a bill was struck out (d) Pilot's case, 11 Co. 27 a. (17) Sank of Hindustan v. Smith, 36 (e) Per cur. Davidson t. Cooper, 13 L. J. C. P. 241. M. & W. 352. (A) Senfree v. Bromley, 6 East, (/) Per cur. Fattinson v. Luckley, 309. L. R. 10 Ex. 330 ; 44 L. J. Ex. 180. (i) Argoll v. Cheney, Palm. 403 ; Bolton V. Bp. Carlisle, 2 H. Bl. 263. ' 698 DISCHARGE OF CONTRACTS. Past IV. by mistake (k) ; or the acceptance was cancelled by mistake (l). But an alteration intentionally made by one party without consent of the other, under a mistake only as to the legal effect of the instrument, will avoid it ; though made in furtherance of the supposed intention (m) . Material The alteration must in all cases be material in order to alterations. avoid the rights of parties (m). A material alteration is one which affects the contract or any rights or remedies under it ; or which affects the use of the instrument for its proper pur- pose (o) : as an alteration in a sale note of goods by the seller adding a stipulation, that damaged goods should be taken at an allowance by valuation (p) ; or by the buyer adding to a sale of goods " by sample " the words " of their own manufacture," such alteration being material whether the words referred to the bulk of the goods, or to the sample only (q) ; an alteration of a written contract by adding a seal to the signature so as to make it appear to be a contract under seal (r). A deed of composition between a debtor and the creditors named in the schedule was held to be materially altered by the addition of the schedule after execution (s) . But a like deed, pm-porting to include as parties aU the creditors, and duly executed by a majority sufficient to bind all, was held not to be materially altered by the addition of names of creditors in the schedule as the addition was within the terms of the deed (t). In policies of insurance, an altera- tion by inserting a new subject of insurance (ti) ; or by altering the time of sailing warranted (,r) ; or by altering the port of {k) Wilkinson v. Johnson, 3 B. & (p) Powell r. Divett, 15 East, 29. C. 428. () Jessel, M. E., Camberwell B. S. Spicer, (1891) 2 Ch. 127 ; 60 L. J. C V. Holloimy, L. R. 13 C. D. 763 ; 49 514. L. J. C. 361. (h) See Games v. Bonnor, 54 L. J. ic) Re Brijant^ Barningham,'L.'R. C. 517. 44 0. D. 218 ; 59 L. J. 0. 636 ; Re (i) Beioley v. Carter, L. R. i Ch. BeacVs Trustees, L. R. 45 C. D. 310 ; 230 ; 38 L. J. C. 283 ; Alexander v. 59 L. J. C. 604 ; see Be Thompson cj- Mills, L. R. 6 Ch. 124 • 40 L J c' Holt, L. R. 44 G. D. 492 ; 59 L. J. 73 ; Malins, V.-C, Bell v. Holtby, C. 651. L. R. 15 Eq. 193 ; 42 L. J. C. 266. (rf) See Ee Sauyer % Baring^ Con- (k) Jessel, M. E., Osborne v. Botc- tract, 53 L. J. C. 1104. left, L. R. 13 C. D. 781 ; 49 L. J. C [e) Jeakes v, JJlii/e, 6 Ex. 873 ; see 310. PERFORMANCE. 717 tion of a will or other private instrument (/) ; or upon the Chap, hi. doubtful construction of a general statute which has not been settled by any authoritative decision (m). — The vendor is Abstract ■' ■J \ ' of title. required to deliver at his own expense to the purchaser an abstract of title, showing a good title to convey («) ; and he must verify the abstract by the title deeds (o) . The delivery of the title deeds is not equivalent to the delivery of an abstract of title, unless accepted as such {p). — By the Vendor Length of and Purchaser Act, 1874, 37 & 38 Yict. c. 78, s. 1, it is *'*^^' enacted that " subject to any stipulation to the contrary in the contract, forty years shall be substituted as the period of commencement of title which a purchaser may require in place of sixty years, the present period of such commence- ment ; nevertheless, earlier title than forty years may be required in cases similar to those in which earlier title than sixty years may now be required." Under the Statute of Limitations the purchaser may be compelled to take a pos- sessory title of twelve years {q) . The conditions of sale may restrict the purchaser's right to Conditions title, and may bind him to accept such title as the vendor can tftie""*'"^ give (r), or to take a qualified title commencing from a cer- tain deed or a certain date (s), in which case he is not pre- cluded from taking objections to the qualified title shown, whether appearing upon the face of the title or from other sources, nor from objecting to suppressions in the prior title (f) . The purchaser may be bound by a condition of sale to assume certain statements as facts vdthout further evidence, {!) I'i/fkeY.Waddinffham,10'B.iiTe,l. (»•) Fremev. Wright, 4 Madd. 364 ; (m) Selbome, L. C, Palmer v. I)uke\. Sarnett, 2 Coll. 0. 0. 337; Locke, L. E. 18 C. D. 388 ; 61 L. J. Hume v. Focook, L. E. 1 Oh. 379 ; 35 C. 124 ; Se Thackwray, L. E. 40 L. J. 0. 731 ; Best v. Samand, L. K. C. D. 39 ; 58 L. J. C. 72. 12 C. D. 1 ; 48 L. J. C. S03. («) Sharlandv. Zeif child, 4 0. B. (s) SelUck t. Trevor, 11 M. ScW. 529 ; see Steer v. Crowley, 14 C. B. 722 ; Phillips v. Caldcleugh, L. E. 4 N. S. 337 ; 32 L. J. C. P. 191 ; Oak- Q. B. 159 ; 38 L. J. Q. B. 68. den T. Pike, 34 L. J. C. 620 ; Ee John- {() Edwards v. Wickwar, L. E. 1 . son # Tustin, L. E. 30 C. D. 42 ; 54 Eq. 68 ; 35 L. ,T. C. 48 ; Eke t. Eke, L. J. C. 889. L. E. 13 Eq. 196 ; 41 L. J. 0. 213 ; (o) Bryant v. Busk, 4 Euss. 1 . Ee Marsh and Granville, L. E. 24 C. (p) Some V. Wingfield, 3 M. & G. D. 11 ; 53 L. J. C. 81 ; see Smith y. 33 ; 3 Scott, N. E. 340. MoUnson, L. E. 13 0. D. 148 ; 49 L. (q) Games v. Bonnor, 54 L. J. 0. J. C. 20 ; Re Cox and Neve, (1891) 2 617. Ch. 109, 718 DISCHARGE OF CONTRACTS. Paet IV. as that a person was entitled at a certain date ; or that a person died intestate and without an heir; hut he is not therehy precluded from showing that the statements are erro- neous («(). The purchaser may also he restricted by a con- dition to making objections or requisitions within a certain time ; but he is not thereby precluded from objecting after the time that the vendor has failed to show any title (*) . Property The vendor must convey property answeriag to the descrip- tion contracted for in estate, tenure, quantity, and identity. A contract for sale of land presumptively imports an estate in fee simple («/), and free from iaoumbrances (z) ; except so far as the purchaser knew of the interest of the vendor, or of the existence of incumbrances ; in which case the contract may be effectual to pass such interest as the vendor has ; and subject to the known incumbrances, unless the purchaser has expressly stipulated against them (a). Under a contract for freehold land the purchaser cannot be compelled to take copy- hold (b) ; nor under a contract for copyhold, to take free- hold (c) . Under a sale of freehold the purchaser cannot be compelled to take leasehold, for however long a term of years {d). Under a sale of leasehold for a term of years the purchaser cannot be compelled to take a substantially shorter term than contracted for (e) ; or a term subject to determina- tion at option of lessor (/) ; nor can he be compelled to take an underlease, however small the difference of term (g), unless {a) Harnett v. Baker, L. E. 20 Eq. C. 655 ; Ellis v. Rogers, L. E. 29 C. 60 ; 45 L. J. 0. 64 ; Jones v. Clifford, D. 661. L. E. 3 C. D. 779 ; 45 L. J. G. 809 ; (i) Turquand v. Rhodes, 37 L. J. C. Re Banister, L. E. 12 0. D. 131 ; 48 830 ; Sudson v. Cook, L. E. 13 Eq. L. J. C. 837; Re Sandbach and 417 ; 41 L. J. C. 306 ; ^art v. iSwai«, Edmondson, (1891) 1 Ch. 99 ; 60 L. J. L. E. 7 C. D. 42 ; 47 L. J. C. 6. C. 60. (c) Aijles V. Cox, 16 Beav. 23. (x) Want V. Stallihrass, L. E. 8 Ex. (d) Brewe v. Corp, 9 Ves. 368 ; see 175 ; 42 L. J. Ex. 108 ; see Rosen- Fordyee v. Ford, 4 Bro. C. C. 495. herg v. Cook, L. E. 8 Q. B. D. 162 ; (e) Eldon, L. C, Mortlock y. 61 L. J. Q. B. 170. Buller, 10 Ves. 306; Salsegv. Grant, (y) Sughes v. Parker, 8 M. & "W. 13 Ves. 77 ; Belworth y. Sassell, 4 244 ; Bower v. Cooper, 2 Hare, 408. Camp. 140. (z) Ungley v. Ungley, L. R. 5 C. D. (/) Weston y. Savage, L. E. 10 887 ; 46 L. J. C. 854. C. D. 736 ; 48 L. J. 0. 239. {a) See Cox v. Middleton, 2 Drew. (g) MadeUy v. Booth, 2 B. & S. 209 ; 23 L. J. C. 620 ; Boiling y. 718 ; Re Beyfus and Masters, L. E. Evans, 36 L. J. C. 474 ; Re Gloag and 39 0. D. HO ; see Waring y. Scotland, Miller, L. E. 23 0. D. 320 ; 52 L. J. 57 L. J. C. 1016. PERFOEMAKCE. 719 the purchaser has notice in the particulars of sale or other- Chap, ill. ■wise that an underlease only was intended {h). Under a sale of land as " partly freehold and partly leasehold " the pur- chaser is bound to take the land without requiring definition of the several tenures («). Under a contract for land in fee simple the purchaser cannot be compelled to take a reversion in fee expectant upon a life estate {k). Under a contract for specific land described as of a certain quantity, the pur- chaser is not bound to take an undivided share of that quantity of the land (l) . The vendor must convey the entire property contracted for; thus upon a sale of a wharf with a jetty necessary for the use of the wharf, the purchaser is not bound to take the wharf without the jetty {m). So upon sale of a house with a yard essential to the enjoyment of the house, he is not bound to accept the house, with a tenancy from year to year only of the yard («). And upon the sale of a public house as a going concern, the vendor is impliedly bound to transfer a valid licence with it (o). — Also, the property must be identified with that described in the contract of sale, subject to any conditions restrictive of the identification [p) ; as in the case of a house identified by the name of the street and the number {q). And the property must be conveyed in the condition contracted for, so far as the vendor is responsible for any change, as by cutting down timber, pulling down buildings, or otherwise materially altering the condition (r). But any subsequent deterioration or improvement in the pro- perty from accidental or natural causes accrues to the loss or profit of the purchaser, as being the beneficial owner by virtue of the contract (s). Thus loss by fire presumptively falls on [h) Camberwell JB. S. v. Holloway, 476 ; Nicholl t. Chambers, 11 0. B. L. B. 13 C. D. 754 ; 49 L. J. C. 361. 996 ; 21 L. J. C. P. 54. (j) Monro v. Tayhr, 3 Mao. & G. {q) Stanton y. Tattersall, 1 Sm. & 713. G-. 529 ; Leach v. Mullett, 3 Car. & (k) Collier v. Jenkins, Young, 295. P. 115 ; White v. Bradshaw, 16 Jur. (I) Re Arnold, L. B. 14 0. D. 279. 738 ; ante, p. 281. {in) Feers v. Lambert, 7 Beav. 546. (r) St. Albans v. Shore, 1 H. Bl. («) Dobell T. Hutchinson, 3 A. & 271; Granger y. Worms, 4 Camp. 83; E. 355. see Foole t. Shergold, 2 Bro. C. C. (o) JDayr. Luhke, L. R. 5 Eq. 336; 118 ; 1 Cox, 273. 37 L. J. C. 330; Glaydon v. Green, (s) White t. Nutt, 1 P. Wms. 61 ; L.R.3C.P.511; 40 L. J. C. P. 226. Spurrier m. Hancock, i^^ es. ^(,1 ; Paine {p) Flower v. Hartopp, 6 Beav. v. Meller, 6 Ves. 349 ; ante, p. 610. 720 DISCHARGE OF CONTRACTS. Fabt iy. the purchaser ; and though insured by the vendor, the pur- chaser has no claim to the insurance money, without an express stipulation to that effect {t). inoum- The vendor is presumptively bound to convey the land trances. . . . sold free from reservations, rights or incumbrances : as rents, and tithe if the land is sold tithe free (m) ; rights of mining and taking minerals («) ; but an unexpired lease of minerals under which they have all been worked out before the sale is no incumbrance (y). So with rights of common over the land sold (2) ; and with rights of sporting {a) ; and with easements , of any kind, as rights of drawing water or of drainage (i) ; or rights of way (c), unless obvious to the purchaser, as a Eestrictive public highway ((^). — The vendor must also convey the pro- perty free from any restrictive covenants as to the mode of use or occupation, which run with the land or affect it in Notice equity by notice (e) . — A purchaser cannot in general object brancST' to incumbrances and covenants affecting the property sold, of which he had notice at the time of the sale (/). But an express stipulation for a good title covers all defects, whether he had notice or not {g) . And where the contract of sale was subject to a general exception of all rents, rights, easements, &c., it was held that the vendor was entitled to have the same exception inserted in the conveyance, though it was not [t) Rayner v. Preston, L. R. 18 {d) OUfieU v. Sound, 5 Ves. 508 ; C. D. 1 ; 50 L. J. C. 472 ; see Castel- see Gibson v. S'Este, 2 T. & C. 542 ; lain T. Preston, L. R. 11 Q. B. D. Ashburner v. Sewell, (1891) 3 Ch. 380 ; 52 L. J. Q. B. 366. 405 ; 60 L. J. C. 784. (m) Binlcs V. Rokebij, 2 Swanst. 222. (e) See joosi, p. 1061 ; Jones v. Edncy, (x) Seaman v. Vawdrey, 16 Ves. 3 Camp. 285; fW^A< v. .Boo. 23 ; 58 L. J. C. 665 ; Be Cox (z) Gibson Y. Spurrier, Peake, Ad. ^ Neve, (1891) 2 Ch. 109 ; see Hard- Ca. 49. man v. Child, L. R. 28 C. D. 712 ; 54 (a) Burnell v. Brown, 1 J. & W. L. J. C. 695. 168. (/) Ellis V. Bogers, L. R. 29 C. D. (A) Shachleton v. Sutcliffe, 1 D. & 670. S. 609 ; Seywood v. Mallalieu, L. R. (17) Cato v. Thompson, L. R. 9 Q. 25 C. D. 357 ; 63 L, J. C. 492. B. D. 616 ; Be Gloug S; Miller, L. R. (c) Dykes v. Blake, 4 Bing. N. C. 23 C. D. 320 ; 52 L. J. C. 654. 463. PEEFOKMANCE. 721 shown that any such rights or incumbrances then existed {h). Chap, m. Incumbrances and covenants of the above kind are matters of title and not of description, and must be so taken in con- struing the conditions of sale {i) . Where the diSerence or deficiency in any of the above Perform- •^, ance with respects between the property contracted tor and that ten- compensa- dered for conveyance is slight in value, and not otherwise important or material to the enjoyment of the property, or in inducing the contract, the Court will enforce the contract with compensation in value or indemnity against risk of incumbrances ; as in the case of a slight deficiency in a long term of years, or in the quantity of land ; or in the case of a small quit rent or tithe (A-). Contracts of sale frequently contain an express condition to the effect that any mis- description, mistake, or error shall not avoid the sale, but shall be matter of compensation ; in which case the error is met by the condition, provided the purchaser gets substan- tially what he contracted for ; but if not he is not bound to take compensation, and may repudiate the purchase (^). The condition for compensation remains operative after the con- veyance is complete, unless restricted to errors discovered before completion (w). A condition of sale expressly ex- cluding any compensation for errors was construed as apply- ing only to small unintentional errors, and not to substantial errors due to carelessness (w) . The principle that a vendor is presumptively bound to Contracts make a good title was applicable to contracts to grant, or or'^saie of to sell and assign a lease, including the lessor's title to '®^®' demise (o). But it is now enacted by "The Vendor and Purchaser Act, 1874," 37 & 38 Vict. c. 78, s. 2, that subject (h) Qah V. Squier, L. E. 5 C. D. Q. B. D. 351 ; 63 L. J. Q. B. 345. 625 ; 46 L. J. C. 672. in) Whittemore v. Whittemore, L. (j) Ashiurner v. Semll, supra. E. 8 Eq. 603 ; 38 L. J. C. 17 ; Re (k) See Mortloclc v. BulUr, 10 Ves. Beyfus ^ Master, L. R. 39 C. D. 113. 306; Balseyy. Grunt, 13 Ves. 77; see (o) Souter v. Drake, 5 B. & Ad. jioat, p. 988. 992 ; Hallx. Betty, 4 M. & G. 410 ; [l) Per cur. Flight v. Booth, 1 Bing. Stranks v. St. John, L. E,. 2 C. P. N. C. 377 ; Re Fawcett # Bolmes, L. 376 ; 30 L. J. C. P. 118 ; Pee Frend E. 42 C. D. 150 ; 58 L. J. 0. 763. y. Buckley, L. E. 5 Q. B. 213 ; 39 L. im) Palmer v. Johnson, L. E. 13 J. Q. B. 90. L. 3 A 722 DISCHARGE OF CONTRACTS. Paet IV. to any stipulation to the contrary, " under a contract to grant or assign a term of years, -whether derived or to he derived out of a freehold or leasehold estate, the intended lessee or assign shall not be entitled to call for the title to the free- hold." And by " The Conveyancing Act, 1881," 44 & 45 Vict. 0. 41, ss. 3, 13, under a contract to sell or grant a term of years derived out of a leasehold interest in land " the intended assign or lessee shall not have the right to call for the title to the leasehold reversion "(/i). The above enact- ments put the piirchaser or lessee in the same position as a condition of sale against the production of title ; but do not protect him from constructive notice of the title and of the contents of deeds {q). The purchaser may prove that the title of the lessor is bad (r) ; and in support of a definite objection to the title, the enactment does not preclude him from the ordinary right to a production of deeds (s). But an express condition of sale may exclude the purchaser from making any objection to the title, and bind him to take the lease, whatever the title may be {t) . — In a contract for the sale and assignment of an agreement for a lease, in the absence of express stipulation, there is no implied guarantee of the lessor's title ; the assignee being entitled only to the rights under the agreement (m) ; but it is implied that the agreement is valid, otherwise there is no consideration for the contract ; and where the agreement offered was voidable at the will of a third party, it was held that the purchaser might repudiate the contract {x) . Sale of agreement for lease. Time of perform- ance. Performance must be completed at or within the time stipu- lated ; performance accepted after the time operates not in pursuance of the contract but in satisfaction of the breach (y) . (p) And see Conveyancing Act, 1881, s. 3 (5). (?) Patmaii T. Barland, L. K. 17 C. D. 353; cOL. J. C. 642. (r) Shepherd v. Keatlcy, 1 C. M. & E. 117 ; Darlington v. Hamilton, Kay, 650; 23 L. J. 0. 1000; ]Vaddell v. Woolfe, L. R. 9 Q. B. 515 ; 43 L. J. Q. B. 13S. (s) Jones y. Watts, L. E. 43 C. D. 574. (0 249; 520; («) 357; (■'■) CD. Spratt v. Jcffery, 10 B. & C. Hume T. JBentley, 6 B. & S. 21 L. J. 0. 760. , Kinirea v. Preston, 1 H. & N. 25 L. J. Ex. 287. lireuer v. Broadivood, L. E. 22 . 105; 52 L. J. C. 136. Post, 15. 755. PERFORMANCE. 723 Where the contract admits of several days for performance, Chap. m. it is sufficient if the performance is completed before the end of the last day ; and where the performance is to be by or before a certain day, it is sufficient if completed at any time before the end of the preceding day (z) . — Where no time is Reasonable fixed the law implies that the performance must be completed within a reasonable time with reference to the circum- stances («). A contract to marry, no time being fixed, is a contract to marry within a reasonable time ; and it is said that " people who agree to marry, not having the means, agree with the implied condition to wait till they have them; the legal expression of which is, that their engagement is to marry within a reasonable time" (b). A bill or note payable at a certain date may be paid at any Bills of time on the day on which it falls due. The holder may also and notes. demand payment at any time on that day within business hours, and if then refused may treat the bill as dishonoured and give notice of dishonour to prior parties ; but after such refusal the acceptor may tender payment within the day and thereby avoid the dishonour and notice (c). A bill or note not expressing any time for payment, or expressing to be payable on demand, is considered as due and payable by the acceptor or maker from the time of issue without demand ; but it is not considered as overdue until a demand and re- fusal; and interest does not accrue, unless expressly stipulated, until demand made (d). A bill or note payable at a certain time after demand is not due and payable until a demand made and the time elapsed ; but payment of interest is evi- dence of demand having been made and of the bill being overdue, unless the interest is expressly payable during the (z) Sheppard's Touoh. 378. (e) Leftly v. Mills, 4 T. E. 170 ; (a) Rolfe, B., Startup v. Macdonald, Burbridge v. Manners, 3 Camp. 193 ; 6 M. & Gr. 611 ; per cur. Ford v. Ex p. Moline, 19 Ves. 216. Aa to Cotem'orth, L. B. 4 Q. B. 133 ; 39 days of grace, see ante, p. 168. L. J. Q. B. 188 ; Taylor v. G. N. {d) Whitloei t. Underwood, 2 B. & jiy., L. K. 1 0. P. 385 ; 35 L. J. C. C. 157 ; Brooks v. lUtchell, 9 M. & I". 210; see Be Waalv. Adler, L. E. W. 15; Ester, M. R., Glasscock v. 12 Ap. Ca. 141 ; 46 L. J. P. C. 25. Balls, L. B. 24 Q. B. D. 13 ; 69 L. (/') Bramwell, B., Sail v. Wright, J. Q. B. 51. See^osi!, pp. 843, 947 ; E. B. & E. 765 ; 29 L. J. Q. B. 47 ; Bills of Exchange Act, 1882, ss. 10, Harrison v. Cage, L. Raym. 386. 36. 3 A 2 724 DISCHARGE OF CONTRACTS. PaetIV. currency of the bill (e). A bill of exchange which is ex- pressed to be payable at a fixed period after date, and which is issued undated, is construed as intended to be dated on the day of issue ; and any holder may insert therein the true date of issue, and the bill is payable accordingly (/). Sale of A contract for the sale and delivery of goods on a certain day or within certain days is performed by a delivery com- pleted before the end of the day or of the last of the days appointed ; or by a tender of delivery, however late, provided time is left to complete the delivery and acceptance before the end of that day ; but the buyer would not be bound to attend at the place of delivery for accepting the goods beyond a reasonable hour according to the usual course of business {g). Under a contract for delivery " in all December," the seller was held to have the whole month for delivery ; and as there was no breach until the last day of the month, the damages were measured by the value of the goods on that day {h) . A contract not fixing any time for delivery implies that the delivery must be made within a reasonable time, depending on the place and the condition in which the goods are, or are represented to be («'). Delivery is not impliedly deferred merely by reason that payment is expressly deferred to a future time, but the sale is then presumj)tively for delivery within a reasonable time on credit (/i-). But under such a contract evidence was admitted of a usage of trade that de- livery could not be claimed before the time of payment (/). A contract of sale not mentioning any time of payment would be presumptively for payment in ready money upon delivery {m). And a sale of goods " to be delivered and paid for in fourteen days " was construed to import that the (e) Re Rutherford, L. B. 14 C. D. (i) Ellis v. Thompson, 3 M. & W. 687 ; 49 L. J. C. 654. 445 ; see Wool/e v. Some, L. K. 2 (/) Sague v. French, 3 B. & P. Q. B. D. 355 ; 46 L. J. Q. B. 534. 173; Giles v. Bourn, 6 M. & S. 73; (/,;) Spartali v. Benecke, 10 C. B. Bills of Exchange Act, 1882, ». 12 ; 212; see Staunton y. TFood, 16 Q. B. post, p. 730. 638. {c/) Startup V. Macdonald, 6 M. & (/) Field v. Liican, 6 H. & N. 617; C!-- 593. 30 L. J. Ex. 168 ; ante, p. 168. (/() Leigh v. Falerson, 8 Taunt. (m) Ford v. Yates, 2 M. & G. 549 ; 540 Zockett Y. NiclcUn, 2 Ex. 93. PERFORMANCE. 725 delivery and payment were to be concurrent acts witMn the Chap, hi. fourteen days («t). In contracts fixing a time for delivering an abstract, making Sale of a title, and the other steps in the performance of a sale of land, the Courts of common law required strict adherence to the contract ; and if the vendor was not ready and willing to perform his part at the times appointed he was liable to an action ; nor could he afterwards maintain an action against the purchaser, upon his becoming able to make a title and convey the land after the time appointed (o). — But the Court Time not f./-~(, . ... „ .„ « of essence of Chancery in administering the remedy of specific perform- ofcontract. ance acted upon the principle that in the sale and purchase of land " time is not of the essence of the contract " ; and if there was no other objection than lapse of the appointed time, the Court directed an inquiry into the title, and granted specific performance if the vendor could show a title upon such in- quiry (p). Upon the same principle a mortgage of land with a proviso for redemption on repayment of the money by a fixed day was treated in equity as a mere loan of money secured by a pledge of the land, and the time of repayment as not of the essence of the pledge ; and therefore redemp- tion was allowed upon repayment of the debt and interest at any time (q) . And it is now enacted by the Judicature Act, 1873, 36 & 87 Vict. c. 66, s. 25 (7), that "stipulations in contracts as to time or otherwise, which would not before the passing of this Act have been deemed to be or to have become of the essence of such contracts in a Court of Equity, shall receive in all Courts the same construction and effect as they would have heretofore received in equity " (r). But time may be made essential by express agreement of Time made the parties ; or impliedly by the nature of the property or the by agree- ment. («) Godts Y. Base, 17 C. B. 229 25 L. J. C. P. 61. (o) Wilde V. Fort, i Taunt. 334 see Sanson v. Rhodes, 6 Bing. N. C 261 ; Noble v. Edwardes, L. R. 5 C, lerts v. Berry, 3 D. M. & G. 284 ; 22 L. J. C. 398 ; see post, p. 987. {q) Eldon, L. C, Seton v. Slade, supra. {)■) See Nolle v. Mdwardes, supra; D. 378. JPatrie/c v. Milner, L. E. 2 C. P. D. {p) Seion v. Slade, 7 Ves. 265 ; 2 342; 46 L. J. 0. 537. White & T. L. C. 6th ed. 542 ; Bo- 726 DISCHAKGE OF CONTRACTS. PaetIV. circumstances of the ease («). The condition that the vendor shall deliver an abstract of title within a certain time is pre- sumptively not of the essence of the contract (t). And the purchaser is taken to waive any objection to delay in de- livering the abstract, if he accepts it when delivered (m). The condition that all objections and requisitions to the title shall be sent within a fixed time from the delivery of the abstract makes the time of the essence of the contract (x). But it is waived or extended by delay of the vendor in delivering the abstract (y) ; or by delivering an incomplete abstract (s) ; or by accepting the objections and requisitions sent in after the time (ffl). An express provision for the payment of interest on the purchase money until completion is construed as showing an intention not to consider the time essential (b). A condition for delivery of possession on a certain day is not considered essential unless special circumstances render the possession material (c). — The nature of the property sold may impliedly make time essential : as leasehold property which is running out pending completion of the sale (d) ; a building agreement which is subject to forfeiture if the building is not completed by a certain day (e) ; a lease for lives (/) ; a covenant for the renewal of a lease before the expiration of the term {g) ; land to be taken at a valuation price (h) ; eon- tracts giving an option to purchase (i) ; life annuities (k) ; Time im- pliedly essential. (s) Cairns, L. C, Tilki/ v. Thomas, L. R. 3 Ch. 67. («) Moierts v. Berry, 3 D. M. & Gr. 284 ; 22 L. J. C. 398. (!() Seton T. Slade, 7 Vea. 265 ; Eipwell V. Knight, 1 Y. & C. 401. (x) Oakden v. Pike, 34 L. J. C. 620 ; Sosenierg v. Cook, L. E. 8 Q. B. D. 162; 51 L. J. Q. B. 170. [y) Vpperton v. Nicholson, L. K. 6 Ch. 436. (z) JBlackloio V. Laws, 2 Hare, 40 ; Oakden v. Fike, supra; Want v. Stalli' brass, L. E. 8 Ex. 175 ; 42 L. J. Ex. 108 ; Se Jackson's Sale, L. E. 14 C. D. 851; 49 L. J. 0. 623. {a) Cutis V. Thodey, 13 Sim. 206. (b) Webb V. Hughes, L. E. 10 Eq. 281 ; 39 L. J. C. 606 ; Patrick v. Milner, L. K. 2 0. P. D. 342; 46 li. J. C. P. 537 ; Eatten t. Russell, L. E. 38 C. D. 334 ; 57 L. J. C. 425. (c) Boehm v. Wood, 1 J. &W. 419; see Tilleij v. Thomas, L. E. 3 Ch. 61. [d) Hudson v. Temple, 29 Beav. 536 ; 30 L. J. C. 251. (c) Barclay v. Messenger, 43 L. J. C. 449. (/) Wheeler v. B' Esterre, 2 Dow. 359. (g) Carter v. Bean of Ely, 7 Sim. 211 ; Nicholson v. Smith, L. E. 22 CD. 640; 52 L. J. C. 191. (A) Morse v. Merest, 6 Madd. 26. (i) Ranelagh v. Melton, 2 Dr. & Sm. 278 ; 34 L. J. C. 227 ; see Pegg V. Wisden, 16 Beav. 239 ; Eduiardes V. West, Ij. E. 7 C. D. 858 ; 47 L. J. C. 463. (k) Withy V. Cottle, T. & E. 78. PERFORMANCE, 727 reversionary interests (l) ; minerals and other subjects of Chap, ii . fluctuating value (m). So with property sold for immediate use in manufacture or trade (w) ; as a public house sold as a going concern (o) ; and property sold for immediate resi- dence {])). But the Court cannot consider the intention of the purchaser as to the use of the property, unless it is expressed in the contract, or known to the vendor (q). Where the condition of time was not originally essential, Time made and where such condition has been waived, time may after- by notice, wards be made essential, as regards the claim to specific per- formance, by either party requiring completion within a fixed time and giving notice to that effect (r) . The notice must give a reasonable time for completion with reference to the circumstances (s) ; and it is said that " such a notice ought to fix the longest time that could be reasonably required for the performance of the acts which remain to be done " (t). If it is intended to rescind the contract for any further delay, it must be unequivocally so expressed in the notice (tc) ; and the notice may be waived by continuing the transaction after the time therein fixed («) . — Where time is of the essence of the Extension contract an extension by request or agreement only sub- stitutes the extended time for the time originally fixed without further waiving the condition (y). And the time is extended in fact by continuation of negotiations for completion (z) ; (t) JVewman v. Sogers, 4 Bro. C. C. {r) Taylor v. Brown, 2 Beav. 180 ; 39i ; see Fatrick v. Milner, L. R. 2 Benson v. Lamb, 9 Beav. 502 ; Farkin 0. P. D. 342 ; 46 L. J. 0. P. 537. v. ThoroU, 16 Beav. 59 ; 22 L. J. 0. (m) FollardY. Clayton, 1 K. & J. 170; Satten v. Russell, L. B. 38 462 ; Soloret v. FothscUld, 1 S. & S. C. D. 334 ; 57 L. J. C. 425. 590. (s) IVells V. Maxwell, 32 Beav. 408 ; (m) Wright v. Howard, 1 S. & S. 33 L. J. C. 44 ; MeMurray v. Spicer, 190 ; Nokes v. Eilmorey, 1 D. & Sm. supra ; Wehb v. Hughes, supra ; Green 444. V. Sevin, 13 C. D. 589 ; 49 L. J. C. (o) Coslake v. Till, 1 Russ. 376 ; 166 ; Compton v. Bagley, (1892) 1 Ch. Day V. Luhke, L. R. 5 Eq. 336 ; 37 313 ; 61 L. J. 0. 113. L. J. C. 330 ; Cowles v. Oale, L. R. 7 (0 Fry, J., Crawford v. Toogood, Ch. 12 ; 41 L. J. C. 14 ; see Caiallero L. R. 13 0. D. 158 ; 49 L. J. C. 108. V. Benty, L. R. 9 Ch. 447 ; 43 L. J. (m) Reynolds v. Nelson, 6 Madd. 18. C. 635. {x) King v. Wilson, 6 Beav. 124. (p) Tilley v. Thomas, L. R. 3 Ch. (•) Co. Lit. 135 b ; Zang y. Gale, (m) Campbell Y. Strangeways, 1j.^. 1 M. & S. Ill; Park, J., Croo/ce v. 3 C. P. D. 105 ; 47 L. J. M. 6 ; Clarke McTavish, 1 Bing. 310 ; Simpson v. T. Bradlaugh, L. R. 8 Q. B. D. 63; Margitsoii, 11 Q. B. 23; see ante, 50 L. J. Q. B. 678. p. 172. («) Garlside v. Silkstone Coal Co., (s) Littledale, J., T/ie Queen v L. R. 21 C. D. 762 ; 51 L. J. C. 828 ; Chaivton, 1 Q. B. 250 ; Parke, B., ante, p. 160. Webb v. Fairmaner, 3 M. & W. 476 ; (o) Commercial 8. S. Co. v. Boulton, see Bills of Exchange Act, 1882 L. R. 10 Q. B. 346 ; 44 L. J. Q. B. s. 14. PERFORMANCE. 733 is admissible to show that the word means calendar month {t). Chap. hi. " Six months' notice" to determine a tenancy by agreement jirimd facie means six lunar months (m) . But the half year's notice impliedly required to determine a tenancy from year to year means a customary half year measm'ed by the usual quarter days {x). The term " twelvemonth " includes a whole year (y) . The rule for construing Acts and proceedings of Parliament followed that of the common law (s) ; but by the Interpretation Act, 1889, 62 & 53 Yict. c. 63, (repealing 13 Yict. 0. 21,) s. 3, "in every Act passed after the year 1860, unless the contrary intention appears, the expression month shall mean calendar month "(ff). In ecclesiastical matters the term -month, prima facie meajxs calendar month (5). — A lease by deed or writing to commence at Michaelmas Old style. means New Michaelmas under the Act of Parliament alter- ing the style ; and extrinsic evidence is not admissible to show that Old Michaelmas was intended (c). But under a parol lease commencing from Lady-day, evidence of the custom of the country was admitted to show that old Lady-" day was intended (d). — A covenant to pay a sum of money Leap year, with interest " on the 29th day of February now next ensu- ing " was construed literally to refer to the next 29th day of Pebruary, and not to the next February, which was not in a leap year (e) . So with a bond conditioned to deliver twenty quarters of corn on the 29th February next following the date (/). Bills of exchange drawn at one month on the 28th or any following day in January become due, excluding the (<) See ante, p. 206. see 5 & 6 Viet. o. 97, o. 4 ; Freeman (u) Bayley, J., Johnstone t. Eudle- v. Sead, 4 B. & S. 174 ; 32 L. J. M. ston, 4 B. & C. 932 ; Rogers y. King- 226. Stan BoclCjZiJj.J .C.lfib; &eeWilk- (}) Cateshj's ease, 6 Co. 61b; inson v. Calvert, L. K. 3 C. P. D. Le Blanc, J., lang t. Gale, 1 M. & 360 ; 47 L. J. C. P. 679 ; Barlow v. S. 117. Teal, L. R. 15 Q. B. D. 501 ; 54 L. (c) Doe v. Lea, 11 East, 312 ; see J. Q. B. 564. Smith v. Walton, 8 Bing. 235. (x) Ante, p. 582 ; Morgan v. Davies, (d) Doe v. Benson, 4 B. & AH. 588 ; L. E. 3 C. P. D. 260. Den v. Sopkinson, 1 Y. & Col. Ex. {«/) Cateshfs case, 6 Co. 62 a ; see 419 ; 3 D. & R. 507. Co. Lit. 135 b. («) Chapman v. Beeeham, 3 Q. B. (z) Lacon v. Hooper, 6 T. R. 224 ; 733. Crooke r. M'Tavish, 1 Bing. 307. _ {/) Anon., 1 Leon. 101. (a) As to month's notice of action, 734 DISCHARGE OV CONTRACTS. PaetIV. days of grace, on 28th February, or in leap year on the 29th (g). Place of perform- ance — payment of money. Where no place appointed. Under a contract to pay money at a certain place, if an exact time is fixed, the debtor must tender at that place and time ; and the creditor must attend there and then to receive the money. If a day or. other period of time is allowed, the debtor has until the last convenient time of the day or period for payment at the place appointed ; and the creditor is not required to be there to receive the money until that time ; but if the parties meet at the place at any time during the day the debtor may then make a tender (A). If no time is fixed and the debtor may pay at any time during his life at a place certain, he must give reasonable notice of the time of payment, and the creditor must then attend at the place to receive it (*') . Where two places are named for payment it seems the choice lies presumptively with the creditor, who must give notice of the place as a condition of charging the debtor vsdth default in payment {k) . If no certain place is appointed, the debtor is bound to find the creditor and tender him the money ; provided he is within the realm (/). "Where there is no place named for payment of a debt, the debtor is bound to pay the creditor on demand ; though where the contract does not make a demand a condition precedent, the creditor need not demand his debt otherwise than by bringing his action ; and it is the duty of the debtor to come to him and pay the debt"(m). This rule applies in the case of a mortgage debt ; or a bond conditioned for the payment of money (n) ; or a composition with creditors upon the terms of the debtor giving promissory {g) Per cur. Migotti v. Oolvill, L. R. 4 C. P. D. 236 ; 48 L. J. M. 50 ; Byles on Bills, 12tli ed. 200. (A) Wade's case, 5 Co. 114; Co. Lit. 202 a ; see Cox v. TFatson, L. K. 7 C. D. 196; 47 L. J. C. 263. (i) Co. Lit. 211 a; Sheppard's Touch. 136. (/() Thorn t. Cit,/ Sice Mills, L. E,. 40 C. D. 3.57 ; 58 L. J. C. 297 ; ante, p. '587 ; see JiippitigliaU v. Lloyd, 5 B. & Ad. 742 ; ante, p. 562. (/) Sheppard's Touchst. 136, 378; Hohey V. Snaefell Co., L. K. 20 Q. B. i). 152; 57 L. J. Q. B. 134; North, J., Thorn v. City Rice Mills, 40 C. D. 360; 58 L. J. C. 297. (ffl) Esher, M. E,., Sell-ir. Antwerp Line, (1891) 1 Q. B. 107; 60 L. J. Q. B. 270; see ante, p. 539, ij. (k). («) Lit. s. 340; Co. Lit. 210 b; see Gyles t. Hall, 2 P, "Wms. 377. PERFORMANCB. 735 notes for the amount of composition to each creditor (o). If Chat, ill. the creditor hy going abroad prevents payment or tender heing made the debtor is excused (ja). And it was held a good answer to a debtor's summons in bankruptcy that the creditor prevented the debtor from paying, by keeping out of the way during the time allowed for payment (q). But the same rule does not apply to foreign contracts ; and if the contract is for payment abroad, the absence of the creditor abroad is no excuse for not tendering him the money (r). Upon the same principle in the case of a bill or note •^fT^,^''* accepted or made payable generally, the acceptor or maker is notes. bound to find the holder when the instrument is due and to tender payment ; and he is not entitled to notice of indorse- ment ; or to presentment, unless the payment is expressly con- ditioned upon presentment at a particular place (s). By the "Bnis of Exchange Act, 1882" (repeahng 1 & 2 Geo. IV. c. 78), s. 19, "an acceptance to pay at a particular place is a general acceptance, unless it expressly states that the bin is to be paid there only and not elsewhere" (t). The statute applies to the acceptance of a bill drawn payable at a particular place (») ; but not against the drawer or indorser of a bill so drawn, which must be presented according to its terms in order to charge them for non-payment by the acceptor (.v). And a promissory note drawn payable at a particular place, must be duly presented there for payment (y). Where rent is reserved upon a lease without appointing a Payment place of payment, it is suifioient for the tenant to be ready "ese^ed. upon the land, at the most notorious place, a sufficient time before sunset for payment, so far as to protect himself from an action of debt upon the reservation, or from a forfeiture (o) Cranky v. Hillary, 2 M. & S. & W. 225 ; ante, p. 560. 120. it) See Ealstead v. STcelton, 5 Q. B. (js) Co. Lit. 210 b ; Sheppard's 92. Touohst. 378. («) Fayle t. Bird, 6 B. & C. 531. (?) Ex p. Gratton, 2 M. D. & D. (x) Gibb t. Mather, 8 Bing. 214 ; 401 ; see Ex p. Greener, L. K. 15 see Sattl v. Jones, 1 E. & E. 59 ; 28 C. D. 457. L. J. Q. B. 37. ((■) Fessard v. Miignier, 18 C. B. {y) Emblin v. Dartnell, 12 M. & N. S. 286 ; 34 L. J. C. P. 126. W. 830 ; Spindler v. Grellett, 1 Ex. (s) Turner v. Sayden, 4 B. & C. 1 ; 384 ; Vanderdoncht v. T/ielliisson, 8 Parke, B., Poole t. Tnmbridge, 2 M. C. B. 812. 736 DISCHARGE OF CONTRACTS. Paet IV. Covenant to pay rent. Delivery of goods. under a condition, or from a distress; because, as tlie rent issues out of the land, the lessor ought to be there ready to receive it ; and it is necessary at common law for the lessor, in order to entitle himself to re-enter for a forfeiture, to make a de- mand at the same time and place (z). The statute 4 Geo. II. c. 28, s. 2, re-enacted by C. L. P. Act, 1852, 15 & 16 Yict. c. 76, s. 210, enables a landlord, in certain cases, to proceed in ejectment upon his right of entry without a formal demand of the rent (a). — Under an express covenant to pay rent, if no place is appointed, the covenantor, as in other cases, must find the covenantee and tender him the money when due ; and it is not sufficient merely to be ready to pay the money on the land {b) . He may discharge the covenant by payment or tender to the lessor at any convenient time before midnight of the last day for payment, if he can be met with, on or off the land (c) . The contract of a carrier to deliver goods at a certain place is performed by carrying the goods to their destination and holding them there ready for delivery ; the liabihty of the carrier thereupon ceases, and if the goods remain in his possession his liability is that of a warehouseman only, for damage due to negligence, and not that of an insurer of their absolute safety (d). A charterparty contracting for the arrival of the ship at a certain port, certain perils and acci- dents excepted, is not discharged by accidents not excepted ; and delay from excepted accidents, though excused by the exception, does not discharge subsequent performance (e). If (z) Co. Lit. 201 b, 221 a ; Sill v. Grange, Plowden, 172 ; 1 Wms. Saund. 287, n. (16) ; Timhler v. Frentice, 4 Taunt. 649 ; see Maund's case, 7 Co. 28 b ; Co. Lit. 144 a ; Bullen on Distress, 118. (a) Doe V. Shauxross, 3 B. & C. 752 ; see as to proceeding in the County Court, 19 & 20 Vict. c. 108, s. 52. (5) Ilaldane v. Jdiiisan, 8 Ex. 089 ; 22 L. J. Ex. 264. (c) See aiilr, pp. 722, 734 ; Hale, 0. J., Dtippa V. Mayo, 1 Saund. 287 ; Parke, B., Startup v. Macdonald, 6 M. & G-. 625. {d) Bourne v. Gatliffe, 7 M. & G. 850 ; ShepherdY. Bristol^- Exeter Ry., L. R. 3 Ex. 189 ; 37 L. J. Ex. 113 ; Heiigh v. London S,- K. TT. Si/., L. R. 5 Ex. 51 ; 39 L. j. Ex. 48 : ' Chapman V. 6. TV. £y., L. R. 5 Q. B. D. 278 ; 49 L. J. Q. B. 420 ; see BodkinsonY. London S: IT. W. My., L. R. 14 Q. B. D. 228 ; and see ante, p. 603. (f) SchilkU V. Dcrry, 4 E. & B. 873 ; 24 L. J. Q. B. 193 ; Mctcalfey. Br'Uannia Co.. L. R. 2 Q. B. D. 423 : 46 L. J. Q. B. 443. PERFORMANCE. 737 the charterparty contracts for the arrival of the ship at the Chap. III. port of discharge " or so near thereto as it can safely get," the charterer is bound to take delivery from, the latter place ; and he is chargeable with the lighterage necessary for dis- charging cargo at that place (/). The shipper or consignee of the goods may dispense with completion of the voyage and accept delivery of the goods at a place short of the desti- nation contracted for, which will in effect be equivalent to performance (gr) . — Under a contract to deliver goods, not appointing a place for delivery, the promiser is not bound to carry the goods to the promisee, wherever he may happen to be, but may require him to appoint a proper place or mode of delivery, and will be discharged by a delivery according to his instructions. " If the condition of a bond be to deliver twenty quarters of wheat or twenty loads of timber or such like, the obligor is not bound to carry the same about, and seek the obligee, but the obligor before the day must go to the obligee and know where he will appoint to receive it, and there it must be delivered " (A). A contract is presumptively construed and regulated, as to Lex loci performance and its incidents, by the law and usages of the place of performance, lex loci solutionis (j). Foreign bills of exchange, that is, bills drawn for payment abroad, are regu- lated as regards the incidents of acceptance, presentment, payment, and protest, by the law of the place of payment (/i) ; and if indorsed to a foreign indorsee the notice of dishonour required by the foreign law is sufficient to entitle him to charge his indorser, and to entitle the latter in turn to charge prior indorsers upon giving them due notice of dishonour as required by their several indorsements (^). Upon the same (/) Sayton v. Irwin, L. B. 5 C. Chth On. v. Hieronymus, L. R. 10 P. D. 130 ; Dahl v. Nelson, L. R. 6 Q. B. 140 ; 44 L. J. Q. B. 54. Ap. Ca. 38; 50 L. J. C. 411 ; see (i) Ld. Mansfield, C. J., Robinson ante, pp. 574, 600. v. Bland, 1 "W. Bl. 258. Ig) Moulder v. Merchants' Ins., L. (k) Sovquette v. Overmann, L. R. 10 R. 17 Q. B. D. 354; 55 L. J. Q. B. Q. B. 525 ; 44 L. J. Q. B. 221. 420; see Metcalfe Y.Britannia Works, (I) Hirschfeld v. Smith, L. R. 1 supra. C. P. 340 ; 35 L. J. C. P. 177 ; Some (A) Co. Lit. 210 b ; see Leather t. Souqaette, 3 Q. B. D. 514. L. 3 B Lex loci contractu, 738 UISCHAKGE OF CONTRACTS. Part IV. principle an authority given to an agent to act in another country must be valid and must be executed according to the law of that country (m) . — This rule operates in exception of the more general rule that a contract is to be construed and regulated 2>™na facie by the law of the place where made, lex loci contractus (»). ()») Chatmay v. Brazilian Tel. Co., J. Q. B. 76 ; and see Graves v. Legge. (1891) 1 Q. B. 79 ; 60 L. J. Q. B. 2 H. & N. 210 ; 26 L. J. Ex. 316 ' 295. Munroe v. Pilkington, 2 B. & S. 11 (n) See ante, p. 175 ; per cur. Lloyd 31 L. J. Q. B. 81. Y. Guibert, L. E. 1 Q. B. 122 ; 35 L. 739 Chapter IV. TBNDEE. PAOE Tender of payment of debt — continual readiness to pay — ■ payment into Court — tender of delivery of goods 739 Time of tender — debts payable on day certain — tender post diem — debts of indefinite credit 741 Mode of making tender — production of the money — coin of the realm — bank notes 743 Tender of greater or less sum than the debt — tender of part of claim or to one of several claims 744 Tender upon condition — demand of receipt — tender under protest 746 Tender by or to agent — joint debtor or creditor 746 " "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 "(a). Accordingly, "the principle of the plea of Tender of tender is, that the defendant has been always ready (toujours of ^ebt° prist) 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 pre- cluding a complete performance by refusing to receive it. And as in ordinary cases the debt is not discharged by such tender and refusal, the plea must not only go on to allege that the defendant is still ready (imcore prist), but must be accom- panied by aprofert in curiam of the money tendered " (b). (a) ]iolfe,B., Startup v. Macdonald, (l>) Fir cur. Dixon y. Clark, 5 C. B. 6 M. & G. 610. 377 ; Order XXII. r. 3. 3 b2 740 DISCHARGE OF CONTRACTS. Paet IV. Continued readiness to pay. Payment into Court. Costs of action. Tender of delivery of goods. "With respect to the averment of toujour s 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 hy the terms of it he had a right to make such a demand, he will avoid the plea"(p). But a tender is not avoided hy a demand of a larger sum than is due on account of the debt ; for the refusal to pay the larger sum is no evidence of an unwilling- ness to pay the due amount (c/). — If the defendant pleads a tender of money without payment into Court, the plaintiff is entitled to judgment for the amount to which the tender is pleaded, as being admitted to be due and unpaid (f). The money paid into Court, and taken out by the plaintiff, is not to be considered as money recovered in the action, because the defence shows that it might have been recovered without action ; and therefore it cannot be reckoned towards the amount 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 (/). — If the defendant succeeds on the plea of tender, he is entitled to judgment against the plaintiff for the costs of his defence [(j). — And upon the same principle a mortgagor, having duly tendered the mortgage debt, becomes entitled to the costs of a redemption suit {h) . But a tender which is refused is not equivalent to payment in discharging mort- gaged property, as it does a mere pledge of chattels at common law («') . A contract to deliver goods is completely discharged by tendering the goods for acceptance according to the contract ; (c) Per cur. Dixon v. Clark, supra ; Cotton T. Godwin, 7 M. cfe "W. 147 ; Tyler v. Sland, 9 M. & W. 338 ; Eesketh v. Fawcett, U M. & "W. 356. {d) Rivers v. Griffiths, 5 B. & Aid. 830 ; Brandon v. Neivington, 3 Q. B. 915. (e) Chapman v. Sicjcs, 2 C. & M. 633. ( f) Jiimes V. rniie, 2 E. & E. 883 ; 29 L. J, Q. B. 169 ; see Tarr v. Zilli- crap, 1 H. & C. 615 ; 32 L. J. Ex. 150. ig) Per cur. Dixon v. Clarke, supra. (/;) Sirmcr v. Friestlei/, 16 Beav. 569; 22 L. J. C. 1041'; Sosken v. SiHcock, 34 L. J. C. 435 ; see Kin- naird v. Trollope, L K. 42 0. D. 610 ; 58 L. J. C. 566 ; Greenwood v. Sut- cUffe, (1892) 1 Ch. 1. ((') Bank of X. S. Wales v. O'Connor, L. R. 14 Ap. Ca. 273 ; 58 L. J. P. C. 82 ; see Chilton f. Carrington, 16 C. B. 206 ; 24 L. J. C. P. 10. post diem. TENDER. 741 and if acceptance is refused there is no further obligation to Chap. iv. continue ready to deliver {j). "If a man he hound in 200 quarters of wheat for delivery of a 100 quarters, if the ohligor tender at the day a 100 quarters, he shall not plead uncore prid, because albeit it be parcel of the condition, yet they be bona peritura, and it is a charge to the obligor to keep theni"(/i;). If the debt is payable on a day certaia, tender must be Time of _ tGiid.Gr ' made on that day. Tender ante diem of a debt accruing due. Debts pay- unless accepted, is void of effect ; as tender of the amount of certain.'^'^^ a biU before it is due which, if accepted, operates as a pur- chase of the bill, and not as payment {I). — "A plea by the Tender 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 "(w). The drawer or indorser must tender immediately upon receipt of notice of dis- honour (;*). A covenant to pay on a certain day can be discharged only by actual payment or tender on that day ; though, if the party afterwards chooses to receive the money, the payment may operate and be pleaded by way of accord and satisfaction (o). Payment post diem discharges a money bond by force of the statute 4 & 5 Anne, c. 16, s. 12 ; but this enactment does not enable the obligor to tender 2}0st diem, and the obligee may refuse a tender so made [p). Tender cannot be made after proof of an act of bankruptcy upon a debtor's summons, but, if the creditor refuses payment, the Court may refuse an adjudication (j). Where there is a {j) See ante, p. 712. 370 ; see Walker v. Barnes, 5 Taunt. {k) Co. Lit. 207 a. 2i0. (1) Bowen, L. J., Richardson v. (o) Parke, B., Poole y. Tumiridge, Hairis, L. R. 22 Q. B. D. 275. 2 M. & W. 226 ; see post, p. 755. (»k) Per cur. Dixon v. Clarke, 5 G. (p) 2 Wms. Saund. 48 b, u. (i) ; B. 379 ; Sume v. Peploe, 8 East, 168 ; Plai/er v. Blandy, 10 Mod. 26 ; Dixon Poole y. Tumbridge,2'M.. ScW.2'lS; v. Parkes, 1 Esp. 110; see post, Dobie V. Larkan, 10 Ex. 776. p. 764. («) Siggers v. Lewis, 1 0. M. & E. (}) Ex p. Bass, L. E. 18 Eq. 375 ; 742 DISCHARGE OF CONTRACTS. Paet IV. margin of time for performance, tender may be made and repeated, if necessary, within the limit of time ; thus, where a seller tendered goods in discharge of his contract, which were refused, and upon arbitration were adjudged insufficient, it was held that he might tender other sufficient goods within the time limited by the contract (r). Debts of Debts may be contracted with indefinite credit, which the credit. Creditor may terminate at any time by demanding payment, or by commencing an action ; and which the debtor may terminate by tender. A promissory note made payable on demand is presumptively due immediately without demand ; and the right of the creditor is so far complete at the date of the note that the Statute of Limitation runs against him from that date(«). But such a note is not considered as overdue so as to affect an indorsee with its equities {t) ; nor does it carry interest unless expressly payable from the date by the terms of the instrument (m) ; nor does it charge an indorser without presentment for payment [x) ; and a tender of the amount due upon the note may be made at any time before an actual demand, or an action brought upon it {y). — Where money is lent or goods are sold and delivered without any defined terms of credit, or where money is received to be accounted for and paid over, with or without interest, there arises an immediate debt payable without demand, but which the debtor may tender at any time whilst the credit con- tinues (s) . In such oases, unless the credit has been put an end to by a previous demand, the tender may be made at any time before process has actually issued for recovery of the debt ; and the debtor is not bound to tender or pay the 43 L. J. B. 110; Ex p. Brigstocke, {x) Chartered Bank of India v. L. R. 4 C. D. 348 ; 46 L. J. B. 50. Dickson, L. R. 3 P. C. 574. ()■) Borrowman t. Free, L. R. 4 (y) Parke, B., Mrton v. Mlam, 2 Q. B. D. 500 ; 48 L. J. Q. B. 65. M. & W. 463 ; Oolton v. Godwin, 7 (s) See post, p. 843 ; JRe George, M. & W. 147. L. R. 44 0. D. 627; 59L. J. C. 709. (z) Parke, B., J{orton v. Mlam, {t) Barough y. White, 4 B. & C. supra; Kington v. Kington, 11 M. & 325 ; Brooks v. Mitchell, 9 M. & "W. "W. 235 ; Smith v. Manners, 5 C. B. 15 ; Esher, M. R., Glasscock v. Balls, N. S. 632 ; 28 L. J. 0. P. 220 ; see L. R. 24 Q. B. D. 13; 59 L. J. Q. B. LittleehiU v. Banks, 7 Q. B. 739; ^1; „ The Queen v. Peters, L. E. 16 Q. B. (u) See post, p. 947. D. 636; 56 L. J. M. 173. TENDER. 743 costs of the creditor in employing a solicitor to demand the Chap, iv. money and apply for a writ (a). Where goods were pledged to secure a loan of money lent for an indefinite time upon interest payable monthly, it was held that a demand of a sum exceeding the amount then due for principal and interest was ineflfectual to terminate the credit, and to justify the lender in selling the pledge upon default in payment {b). A tender must be made at a time and in a manner reason- Mode of ably suflScient for the receiver to ascertain whether it satisfies tender, the contract. A tender of goods is not properly made by an offer to deliver closed casks said to contain the goods, the contents of which are not allowed to be seen and examined (c) ; or by offering goods at so late an hour of the appointed day that the buyer has not time to inspect them (d). — A tender Production of money in payment must be made with an actual produc- money. tion of the money ; a mere statement of the debtor that he is ready to pay is not sufficient ; unless, the debtor having it ready and offering to pay, the creditor expressly or impliedly dispenses with the production (e). "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 " (/) . Money locked up in a box, which the creditor cannot open, is not a good tender ; but a tender of a large sum of money in bags, being the usual manner of carrying money, which the creditor may open, is good, provided the sirni is correct {g) . The money tendered must be current coin of the realm [h). Coin of the By the Coinage Act, 1870, 33 Yict. c. 10, s. 4, "A ^"^ tender of payment of money in coins issued by the mint in (ff) Sriggs v. Caherhy, 8 T. E. (e) Douglas v. Patrick, 3 T. R. 683 ; 629 ; Moffatt v. Parsons, 5 Taunt. Thomas v. Evans, 10 East, 101 ; Pinch 307 ; Kirton v. Braithwaite, 1 M. & v. Brook, 1 Bing. N. C. 253 ; Ein- W. 310 ; Caine v. Coulton, 1 H. & C. naird t. Trollope, L. K. 42 C. D. 618 ; 764 ; 32 L. J. Ex. 97. 58 L. J. 0. 556. (b) Pigot v. Cubley, 15 0. B. N. S. (/) Bayley, B., Polglass v. Oliver, 701 ; 33 L. J. C. P. 134. 2 C. & J. 17. (c) Isherwood v. Whiimore, 11 M. (^) Wade's case, 5 Co. Rep. 114 a; & W. 347. Co. Lit. 208 a. {d) Startup v. Macdonald, 6 M. & (A) Co. Lit. 207b; 2 Co. Inst. 577; G-. 593. see JFade's case, supra. 744 DISCHARGE OF CONTRACTS. Bank notes, Paet IV. accordance with this Act shall he a legal tender — in the case of gold coins for a payment of any amount ; in the case of silver coins for a payment of an amount not exceeding forty shillings, but for no greater amount ; in the case of hronze coins for a payment of an amount not exceeding one shilling, but for no greater amount. — Nothing in this Act shall pre- vent any paper currency which under any Act or otherwise is a legal tender from being a legal tender "(?'). — By the Colonial Branch Mint Act, 1866, 29 & 30 Viet. 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 specified in such proclamation. By 3 & 4 Will. lY. c. 98, s. 6, " A tender of the note or notes of the governor and company of the Bank of Eng- land 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." — A tender in country bank notes or by a cheque on a banker may be good, if the creditor objects only to the amount and not to the quality of the tender (/o). But if a debtor sends a cheque or a.post-office order without any authority or request to remit the money in that form, the creditor is not bound to accept it in pay- ment ; nor is he bound to send it back, but he may commence an action forthwith (/). Cheque or postal order. Tender of greater or less sum than due. A tender may be made of a greater sum of money than the debt ; and the creditor ought to accept so much of it as (i) See s. 6, ante, p. 647 ; and see the Coinage Act, 188a, 62 & 53 Vict. 0. 68. (/,■) Polglass V. Oliver, 2 C. & J. 15 ; Jones V. Arthur, 8 Dowl. 442 ; see Cainey. Coulton, 1 H. & C. 764; 32 L. J. Ex. 97 ; He Steam Stoker Co., L. R. 19 Eq. 416 ; 44 L. J. 0. 386. (0 Hough V. Jlay, 4 A. & E. 954 ; Gordon v. Strange, 1 Ex. 477 ; see Caine v. Coulton, supra; Re Steam Stoke}' Co., supra. TENDEK. 745 is due (;»). "WTiere the debtor produced money to a greater CnAP. iv. amount than the debt and requested the creditor to take what was due, it was held a good tender (■«). But the tender of a greater sum with a demand of change is not a good tender, if the creditor refuses to give change, and objects to take the money for that reason (o). — Tender of a less sum than is due in payment of a single entire claim is void, the creditor not being. bound to accept less than his whole debt {p) ; but he may accept such tender in part payment without pre- cluding himself from claiming the residue, unless it is a con- dition of the tender that it be accepted in discharge of the whole (g) . A tender must include all interest due upon the debt ; but a tender duly made prevents the accruing of future interest (r). The debtor cannot apply a set-off in reduction of his debt, and tender the residue ; a set-off, in the absence of agreement, being available only by way of plea or counter- claim in an action by the creditor (a) . A tender may be pleaded to part of a general claim, as a Tender of claim for goods sold and delivered or for money received, claim! which may be composed of several distinct debts ; and the plea may be met by a replication that the tender was made to a distinct debt and is insufficient {t) . — A debtor who is To one of indebted upon several distinct accounts may tender payment claims, of any one separately ; but if he tenders a sum to the whole without appropriating any portion to a particular debt, and it is not sufficient to cover all, it is not a good tender to any {u). Where two creditors join in taking out a debtor's summons in bankruptcy, whose debts combinedly, but not separately. (m) Wade's case, 5 Co. 115 a; per (r) Parke, B., Norton t. Ellam, 2 cur. Astley v. Reynolds, 2 Str. 916; M. & W. 464 ; see post, p. 944. Douglas V. Patrick, 3 T.E.. 683; Dean (s) Searles v. Sadgrore, 5 E. & B. V. James, 4 B. & Ad. 646. 639 ; 25 L. J. Q. B. \b ; Phillpotts [n) Bevans v. Sees, 5 M. & "W. v. Clifton, 10 W. R. E. 135; see 306. post, p. 867. (o) Betterhee v. Davis, 3 Camp. 70 ; (t) Tyler v. Bland, 9 M. & "W. 338 ; RoUnson v. CooTc, 6 Taunt. 336. Sesketh v. Fawcett, 11 M. & "W. 356 ; (jo) Dixon V. G/ark, 6 C. B. 365. Robinson v. VTard, 8 Q. B. 920. \q) Bowen v. Owen, 11 Q. B. 130. (?«) Strong v. Harvey, 3 Bing. 304 ; Sardingham v. Allen, 5 C. B. 793. 746 DISCHARGE OF CONTRACTS. Part IV. are sufficient for an adjudication, the summons cannot be met bj a tender of one of the debts only (x). Condi- tional tender. Demand of receipt. Tender under protest. A tender made upon a condition which the creditor has a right to object to is not a good tender (?/) ; as the tender of a sum upon condition that the creditor shall admit that no more is due on the same account (2). The mere tender of a sum of money as being all that is admitted to be due, does not impliedly import such a condition ; and the creditor may accept it without precluding himself from claiming a larger sum (a). A tender of a quarter's rent coupled with a demand of a receipt to a particular day, it being disputed whether one or two quarters' rent was due, was held not to be a Yalid tender (6) . — An offer to pay the money upon condition of the creditor giving a receipt is not a good tender ; but a mere request for a receipt is not a condition ; and if the creditor refuses the money because insufficient in amount, he cannot afterwards object that a receipt was required (c). Upon payment of a debt amounting to two pounds or up- wards the debtor is entitled to have a receipt duly stamped ; and the person refusing to give such receipt is liable to a penalty (d). — A tender may be effectually made "under pro- test;" which imports, not to impose a condition on acceptance of the money, but merely to prevent the fact of payment operating as an admission of the claim (e). Tender by or to agent. Tender of the debt may be made by an agent of the debtor ; or by anyone professing to act on his behalf, if the tender is afterwards adopted and ratified by him (/) . And tender may (x) Ex p. Andrew, L. E. 1 0. D. 358 ; 45 L. J. B. 57. See Ex p. Astrup, L. B. 11 C. D. 303. (2/) Maule, B., Bevans t. Rees, 5 M. & W. 309 ; He Steam Stoker Co., L. E. 19 E(i. 416 ; 44 L. J. C. 386. (z) Sough V. May, 4 A. & E. 964 ; Eckstein v. EeynoUs, 7 A. & E. 80 ; Strong v. Sarvey, 3 Bing. 304. (a) Senii'oodr. Oliver, I Q. B. 409; £owen v. Owen, 11 Q. B. 130. (J) Finch V. Miller, 5 C. B. 428. (c) Richardson v. Jackson, 8 M. & W. 298 ; Cole v. Blake, Peake, 179. [d) See post, p. 777. («) Scott T. Uxbrid^e My., L. E. 1 C. P. 596; 35 L. J. C. P. 293; Swcny V. Smith, L. R. 7 Eq. 324 ; 38 L. J. C. 446 ; Oreentvood v. Sutcliffe, (1892) 1 Ch. 1 ; 61 L. J. C. 59. (/) Read v. Goldring, 2 M. & S. 86. See post, p. 786. TENDER. 747 be effectually made to an agent authorised to receive pay- Chap. iv. ment of the debt {g). — Tender to one of several joint creditors, Joint or by one of several joint debtors, is a valid tender, and may creditor.'^ be pleaded as a tender to or by all {h). (g) Ooodland v. Blewith, 1 Camp. D. 143; s^e post, p. 782. 477 ; Eirtm v. Braitkwaite, 1 M. & (A) Douglas v. Fatrklc, 3 T. K. W. 310 ; Moffatt v. Parsons, 5 Taunt. 683 ; see post, pp. 779, 780. 307 ; Finch v. Boning, L. R. 4 C. P. 748 BISCHARGE OF CONTRACTS. Chapter Y. Pabt IV. Breach of contract. Remedies. Acts equi- BEEACH OF CONTRACT. PAGE Breach of contract— remedies — acts equivalent to breach. . 748 Breach by promiser disabling himself from performance . . 749 Breach by renunciation of contract — renunciation not accepted — may be -withdrawn — effect of renunciation in waiving conditions precedent 750 Effect of bankruptcy or insolvency of promiser 753 Discharge of right of action for breach 754 A BREACH or default in performance discharges a contract in the sense that it converts it into a right of action for damages or pecuniary compensation ; and any subsequent performance of the terms affords no defence to such action, but operates only by way of reparation and in mitigation of the damages (ff). — At common law the right of action for damages was the only remedy. But the Court of Chancery exercised the jurisdic- tion of compelling specific performance of the contract upon equitable terms, in those cases which admitted of such remedy, and where the contract could still be substantially performed notwithstanding the breach. The Courts now constituted under the Judicatioxe Acts administer either remedy which is appropriate to the case, and to which the party may appear entitled. But actions for specific performance are assigned primarily to the Chancery Division of the High Court ; and an action in which specific performance is advanced by way of counterclaim will in general be transferred to that division (6). — The performance of contracts has been treated (a) See ante, p. 682; Cal/niider v. (i) Judicature Act, 1873, s. 34; SaickiHS, L. E.. 2 C. P. T>. 592 ; Hi/lmmi v. Maijhew, L. R. 1 Ex. D. K.a.y, J., liasiinv. Bidwell, L. E. 18 132; 45 L. J. Ex. 334; see post, C. D. 252. p. 897. BREACH OF CONTRACT. 749 in a former cHapter ; and any default in performance as there Chap. v. explained constitutes a direct breach (c). It remains here to valentto notice some cases which are regarded in law as equivalent to a breach of contract, and have a like effect in giving a right of action : — namely, where, before the time appointed for performance, the promiser disables himself from performance ; and where, before the time for performance, he absolutely renounces the intention to perform. An act of the promiser which disables him from per- Breach by formance may be equivalent to a breach in giving an disabling immediate cause of action. Where performance is due at a fr^\,er- certain future time, disability is in general ho breach until foi™ance. the time has arrived ; but where performance is due upon a contingency which may happen at any time, and which therefore requires a continuing ability and readiness, the promiser by disabling himself becomes presently liable to an action for breach of contract. As if a person contracts to sell or lease land to another upon a request made, or upon a pay- ment of money, or other discretionary condition, he must continue ready to do so ; and if he disables himself by con- veying the land to a third party, he thereby dispenses with request or tender or any other condition precedent, and be- comes liable to an immediate action for breach (rf). Where a lessor covenanted with the lessee that upon surrender of the lease he would grant him a new lease, and afterwards leased the land to another ; it was held that having disabled himself from making the new lease he had broken his covenant (c). Upon a sale of specific goods to be delivered upon request, if the seller sells and delivers them to a third party, he is at once liable to an action for breach of contract without request, because he has disabled himself from delivering them (/). — Upon this principle a promise of marriage is broken immedi- ately by marriage with another party ; all conditions pre- cedent under the contract, as a request, or the lapse of an (c) See ante, p. 709. (e) Main's case, 5 Co. 21 a ; see {d) Ante, p. 580; Lovelock v. Frank- Ford v. Tiley, 6 B. & C. 325. lyn, 8Q. B. 371. (/) Boicdell v. Farsons, 10 East, 359. 750 DISCHARGE OF CONTRACTS. Paet IV. appointed or a reasonable time, are thereby dispensed with ; and it is immaterial that the marriage becomes dissolved by death or otherwise before such conditions are satisfied ($f). — A contract of employment in a business for a certain term at a fixed salary is broken by the employer abandoning or selling the business ; and the salary for the whole term may be claimed immediately ; but no claim can be made for prospective commission or profits on business which the employer might carry on or not as he pleased {h). The winding up of a company operates as a dismissal of the manager and other agents of the company, and entitles them to prove for compensation as for a breach of contract («'). And the same result follows from the transfer of the business to another company {k) ; and from the appointment of a manager and receiver who takes over the business for creditors {I). The winding up of an insurance company operates as an immediate breach of the contract with a policy-holder ; it exonerates him from further payment of premiums and entitles him. to an immediate claim for damages, the measure of which is the sum required to procure a similar policy of the same amount {ni). Breach by If before the time appointed for performing the contract tionof con- One party gives notice to the other of his intention not to perform it, he may be charged in an immediate action as for a breach ; in which action the other party may claim pro- spectively such damages as would be caused by a breach at the appointed time, subject to any circumstances which may operate in mitigation of the damages («). The notice for this ig) Short v. Stone, 8 Q. B. 358; Caines y. Smith, 15 M. & W. 189, ante, p. 581 ; Byles, J., ^rost T. Kitight, L. E. 7 Ex. 118. (A) Maclure's case, L. B. 5 Ch. 737 ; 39 L. J. C. 685 ; Shodes v. Forwood, L. R. 1 Ap. Ca. 256 ; 47 L. J. Q. B. 396 ; but see Jie Patent Floor Cloth Co., 41 L. .T. C. 476. (i) Re Impirial Wine Co., 42 L. J. C. 5 ; see McDowall's case, L. R. 32 C. D. 366 ; 55 L. J. C. 620. (k) Stirling v. Maitland, 5 B. & S. 840 ; 34 L. J. Q. B. 1 ; see Samli/n V. Wood, (1891) 2 Q. B. 488 ; 60 L. J. Q. B. 734. {I) Eeid V. Fxplosives Co., L. R. 19 Q. B. D. 264 ; 56 L. J. Q. B. 388. (m) Cook's case, L. R. 9 Eq. 703 ; 39 L. J. C. 257 ; Bell's ease, L. R. 9 Eq. 706 ; 39 L. J. C. 539 ; Soldkh's case, L. R. 14 Eq. 72 ; 42 L. J. C. 612. (h) Sochsttr T. Delatour, 2 E. & B. BREACH OF CONTRACT. 751 purpose must express an absolute and unequivocal intention Chap. v. of renouncing and repudiating the contract (o). A mistaken construction of the contract or an imperfect tender which may be amended in time, or an expression of present disability to perform it, is not sufficient [p). And a party has no right before performance is due to demand and have a distinct notice whether the other party intends to perform the con- tract or not {q). The renunciation does not operate as a rescission of the contract, because one party to a contract cannot alone rescind; but the other party may adopt such renunciation with the effect that the contract is at an end, except for the purpose of briagiag an action for the damages consequent upon the renunciation (r) . — Where a person en- gaged a courier from an appointed future day for three months certain at a monthly salary, and before the appointed day wrote to decline his services, it was held that an action would lie as for a breach of the contract without waiting for the time appointed to commence the employment (s). So with a contract for the sale and delivery of goods at a future time, or in instalments at future times, a notice by the seller to the buyer of his intention not to deliver may be accepted and acted upon as an immediate breach ; and the buyer is prima facie entitled to damages measured by the difference between the contract price and the market price at the appointed time or times of delivery, leaving it to the seller to show in mitigation that he could in the interval have obtained a new contract upon better terms ; or if the time for delivery has not elapsed when the damages are assessed, the future damages must be estimated prospectively (f). Where a ship- owner repudiated a contract for the carriage of goods to be shipped on a certain date, as having been made by an agent 678 ; 22 L. J. Q. B. 465 ; per cur. B. D. 460 ; 55 L. J. Q. B. 167. IrostY. Knight, L. E. 7 Ex. 112 ; 41 (q) Sipley v. McClure, 4 Ex. 345. L. J. Ex. 79; Roper v. Johnson, L. B. (r) Esher, M.R., Johnstone v. Mil- 8 C. P. 167 ; 42 L. J. C. P. 65. ling, supra. See ante, p. 687. (o) Mersey Steel Co. t. Naylor, L. K. («) Sochster v. Delatour, supra. 9 Ap. Ca. 434 ; 53 L. J. Q. B. 497. (t) Broion v. Muller, L. K. 7 Ex. (p) lb.; see Borrowman t. Free, 319; 41 L. J. Ex. 214; Roper v. L. K. 4 Q. B. D. 500 ; 48 L. J. Q. B. Johnson, L. R. 8 C. P. 167 ; 42 L. J. 65 ; Johnstone y. Milling, L. R. 16 Q. C. P. 65. 752 DISCHAUGE OF CONTRACTS. P^Bf IV- witliout authority, it was held that the owner of the goods was entitled to accept such repudiation as a breach of the contract and to maintain an action for damages ; though the shipowner when the time arrived, and before any new arrangement had been made, offered to take the goods and perform the contract (u). Upon the same principle a contract of marriage may be taken as broken for the purpose of an action by an absolute refusal to perform the engagement before a reasonable time for performance has elapsed (x). And where a man promised to marry a woman upon the death of his father, and afterwards, whilst his father was living, announced to her his intention of not fulfilling his promise ; it was held that she was entitled immediately to treat the announcement as a breach of contract, without waiting for the death of the father (y). Eenuncia- Renunciation of the contract will operate as a present tion not 1, 1 1 • p T accepted, breach only if accepted and acted upon as such by the other party ; who may, if he pleases, disregard it and insist upon performance according to the terms. " The promisee may treat the notice of intention as inoperative and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non- performance. But in that case he keeps the contract alive for the benefit of the other party as well as his own ; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any super- vening circumstance which would justify him in declining to complete it"(s). If the seller of goods for delivery at a future day gives notice of his intention not to deliver, or if the buyer gives notice of his intention not to accept, in either case the other party may abide by the contract and await the (h) DaiiMe Mil. v. .Yctos, 13 C. B. (y) Frost v. Knight, L R 7 Ex N. S. 825 ; 31 L. J. C. P. 2S4. HI ; 41 L. J Ex 78 L R, 7 Q. B. 5,4 ; 41 L. J. Q. B. 7 Ex. 112 ; 41 L. J. Ex. 79 John- ''■"• »<<""• V. MMing, supra. BREACH OF CONTRACT. 763 appointed day ; and if tlie contract be not then performed, Chap. v. he may claim full compensation according to the market price at that day (a) . And where the charterer of a ship gave notice to the shipowner that he should he unable to provide a cargo, and requested him to leave the port ; but the shipowner insisted upon having a cargo in fulfilment of the charterparty ; and whilst the days allowed for loading were still unexpired, a declaration of war put an end to the charterparty; it was held that the charterer was thereby discharged (b). Renunciation of the contract, if not accepted by the other Renunoia- party as a present breach, may be withdrawn at any time drawn, before the performance is due ; but if not in fact withdrawn it is evidence of continued intention to the same effect (c). — Therefore it operates as a continuing waiver and discharge Effect in of all conditions precedent to the liability for the per- conditions formance ; such as a demand of performance, the lapse of a ^^^"^ reasonable time or an appointed time, the tender of money or goods, or the like (d). Where a contract was made for the manufacture and supply of goods to be delivered in certain quantities monthly, and the buyer after accepting a portion of the goods gave notice to the seller that he had no occasion for more and would not accept or pay for them ; it was held that the seller might claim for a breach of the contract with- out manufacturing or tendering the rest of the goods (e). Bankruptcy or insolvency is not alone such an incapacity Bank- to perform a contract as to entitle the other party at once to or^soi- treat it as broken and to claim damages ; as it may be for IroSiser. the benefit of the bankrupt or insolvent or of his estate to complete the contract, and the representatives of his estate may be authorised to do so (/). Thus, where a banking (a) Zeigh v. Faterson, 8 Taunt. 26 L. J. C. P. 280. 540; 2 Moore, 588; PhittpotU v. {e) Sipley y. M'Clure, i'R:s.. Zio. Hvans, 5 M. cfe W. 475. {d) Ripley t. M'Clure, supra. (i) Avery v. Bowden, JReid v. (e) Cort v. Ambergate Ily., IT Q.B. Soskins, 6 E. & B. 953, 961 ; 26 L. 127 ; 20 L. J. Q. B. 460. J. Q. B. 3, 5 ; see ante, p. 613 ; Bar- (/) See post, p. 1095. wick V. Biiba, 2 C. B. N. S. 563 ; L. 3c 754 DISCHARGE OF CONTRACTS. Paet IV. company, after giving a letter of credit undertaking to accept bills to be drawn against bills of lading, stopped payment before it was used ; it was held that there was no breach for which the holder of the letter could prove damages in the winding-up ; because there had been no refusal to accept bills, and the liquidator might be authorised to carry out the contract and accept them (g). Nor does bankruptcy or insol- vency alone entitle the other party to rescind the contract ; but a notification by a party of his insolvency may be taken as presumptively importing an offer to rescind, which the other party may accept ; and it would, at least, justify a refusal on his part to complete the contract, unless the insol- vent or his representatives should prove their ability and readiness to complete on their part (A) . Discliarge of right of action for treach. The claim or right of action arising from a breach of contract, in common vnth rights of . action arising from wrongs of other kinds, may be discharged by proceeding to judgment in the ordinary course of legal procedure, thus merging the original cause of action ; and the judgment may be satisfied and discharged by execution. The law of Practice and Procedure, regulating the course of proceed- ings in actions, is not within the scope of the present work. But besides the ordinary course of legal procedure, there are some other modes of discharging rights of action, which, so far as they apply especially to those arising from contract, may be considered to require notice here ; and they are there- fore treated in the following chapters. (ff) Re Agra Bank, L. E. 5 Eq. 160 ; 37 L. J. C. 121. (/j) Exp. Chalmers, L. R. 8 Ch. 294 ; 42 L. J. Bank. 37 ; Morgan v. Bain, L. E. 10 C. P. 15 ; 44 L. J. C. P. 47 ; Me Phcenix Bessemer Steel, L. E. 4 C. D. 108 ; 46 L. J. C. 115. See ante, p. 684 ; and see post, p. 1096. 755 Chapter VI. ACCORD AND SATISFACTION. PAGE Accord and satisfaction of breach 755 Contracts tmder seal — consideration of accord — adequacy of consideration — agreement of parties 755 Accord without satisfaction 767 New contract taken in satisfaction — composition with credi- tors — liahOity of third party , 758 Accord and satisfaction with or by joint creditor or joint debtor — by agent , 760 A EIGHT of action for a breach of contract cannot be dis- Accord charged by any performance or tender without the consent faction. and acceptance of the promisee ; for the promisee after breach is entitled to the damages or compensation provided through the process of law, and ia not bound to accept any other satisfaction of his legal right. But he may agree to accept satisfaction ; and an agreement to that effect, accompanied by the delivery or performance of what is so agreed upon, discharges his right of action. This mode of discharge is called in technical language an accord and satisfaction. An accord or agreement before breach, in variance of the Contracts terms of a contract under seal, was ineffectual at common ^" ^'^sea. law, unless made in the like form of a deed under seal (a). Accord and satisfaction after breach discharges the right of action, whether the contract was made by parol or by deed or in writiag ; for it does not iavolve any variation of the terms of the contract (fi). But at common law, in the case of a single bond or a covenant to pay a present money debt, it was (a) See ante, p. 692 ; Heard v. {b) See Smith v. Trowsdale, 3 E. & Wadham, 1 East, 631 ; Healeij v. E. 83 ; 23 L. J. Q. B. 107 : ante S^nce, 8 Ex. 668 ; 22 L. J. Ex. 247. p. 693. 3 C2 756 DISCHARGE OF CONTRACTS. Paet IV. said, " the duty takes its essence and operation originally and solely by the writing, and, therefore, it ought to be avoided by matter of as high a nature " (c). Accordingly it was held that to an action upon such bond or covenant payment with- out an acquittance under seal was no plea [d). But to an action upon a covenant to repair, as the covenant alone did not give any cause of action, but the non-repair of the house in breach of the covenant, an accord and satisfaction was a good plea ; " for the action is not merely grounded on the deed, but also on the wrong subsequent, which wrong is the cause of action and for which damages shall be recovered ; and, generally, in all actions where damages only are to be recovered accord with satisfaction is a good plea" (e). Accord and satisfaction or payment was available in equity in answer to an action for money due under a bond or covenant without an acquittance under seal ; and since the Judicature Act the rule of equity prevails in all divisions of the High Court (/). Consider- ation of accord. Adequacy of the con- sideration. Accord and satisfaction may be supported by any legal consideration agreed upon by the parties for that purpose ; as the delivery and acceptance of goods, the performance of work or services, or payment of money. Payment of a debt or liquidated money claim after it is due operates by way of accord and satisfaction ; payment of the debt at the time of falling due operates by way of performance of the contract [g). — The intrinsic value of the consideration is immaterial ; it is settled by agreement of the parties to be the equivalent of the right of action {h) . But in the case of payment in satis- faction of a money debt of ascertained amount, the accept- ance of a smaller sum is no satisfaction of a debt of larger amount, without a release of the residue or some additional consideration for abandoning it (/). And the consideration {c) Per our. Blake's case, 6 Co. 43 b ; Mogers t. Payne, 2 Wils. 376 ; and see per cur, Massey v. Johnson, 1 Ex. 253. {d) Nichol's case, 6 Co. 43 a; Preston T. Christmas, 2 WUe. 86. See post, p. 764. (e) Blake's case, 6 Co. 43 b. (/) Steeds v. Steeds, L. R. 22 Q. B. D. 537 ; 68 L. J. Q. B. 302 ; see Binns v. Pisher, 43 L. J. C. 188. iff) See ante, p. 711 ; post, p. 762. (/() See ante, p. 533 ; Parke, B., Cmi'eu-is v. Clark, 3 Ex. 379. (t) See post, p. 766. ACCOED AND SATISFACTION. 757 of the accord must be something presently done or agreed to Chap, yi. he done in satisfaction, and not something ahready done and past ; for any past matter would not constitute a considera- tion sufficient to support it (Jc) . — There must be an agree- Agreement ment of both parties as to the satisfaction. Where after a parties. breach of contract the promiser sent a cheque " in full of all demands," and the promisee kept the cheque and returned a receipt " on account " ; it was held that there was no agree- ment or accord that the cheque should be taken in satis- faction (l). An accord alone, being merely an executory agreement of ^':5P^\ the parties as to the consideration to be performed or given satis- and accepted in satisfaction, is no answer to an action for the original claim ; "a plea of accord, to be a good plea, must show an accord which is not executory at a future day, but which ought to be executed, and has been executed, before the action brought "(m). A tender of execution, which the creditor refuses to accept, is not a good plea ; nor is a part execution of the accord (n) . The accord is in the nature of a mere offer which either party may refuse or withdraw ; and upon which no action will lie (o). The accord not amounting to a contract, therefore does not require the for- malities of a contract ; it may be proved by parol evidence for the purpose of supporting the execution in satisfaction, although it involves matter which, as the subject of an exe- cutory contract, would be within the Statute of Frauds (p). And as the accord alone without execution does not discharge or affect the right of action, the Statute of Limitations con- tinues to run from the time the right of action first accrued (q). [k) Stead v. Foyer, 1 C. B. 782. maid, 1 Ex. 81 ; Gabriel v. Dresser, See ante, p. 533. supra. (I) Day V. MeLea, L. R. 22 Q. B. (o) Plowden, 6, 6, Reniger v. D. 610 ; 58 L. J. Q. B. 293. Fogossa ; Allen v. Earris, L. Eaym. [m) Fer cur. Bayley T. Soman, 3 122 ; Reeves v. Searne, 1 M. & W. Bing. N. C. 920 ; Peytoe's ease, 9 Co. 323. 79 b; Jones v. David, 5 T. R. 141; (p) Lavery v. Turley, 6 H. & N. Gabriel v. Dresser, 15 C. B. 622 ; 21 239 ; 30 L. J. Ex. 49 ; Massey v. L. J. C. P. 81. Johnson, 1 Ex. 241 ; see ante, p. 254. (») Feyioe's case, supra j Iiynn v. (?) Reeves v. Eearne. Bruce, 2 H. Bl. 317 ; Carter v. Wor- post, p. 859. 758 DISCHAUGE OF CONTRACTS. Paet IV. — Accordingly, an agreement to give and take payment of a debt in goods affords no answer to an action for the debt, unless the goods have been actually delivered and accepted in satisfaction (r). A plea to an action for not delivering timber sold, that the buyer agreed to accept other timber instead of that contracted for, which the seller tendered, but the buyer refused to accept, was held a bad plea (s) . So a plea to an action for a debt, that it was agreed that the creditor should collect debts due to the debtor and apply the amount in satis- faction, and that he might have collected the debts but neglected to do so (t) ; and a plea that the debtor agreed to execute a mortgage to secure the debt when called upon to do so (u) . So a mere agreement to take payment of a pro- missory note payable on demand by instalments was held to be no answer to an immediate claim for the whole amount of the note («). New con- tract ac- cepted in satis- faction. The consideration of the accord may be a new contract which is made and accepted in satisfaction ; so that if the new contract is not performed the only remedy is by action for the breach, without any recourse to the original debt or right of action («/) . 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 pay- ment defeasible by dishonour of the instrument (s). Where an agreement was made that certain actions then pending should be settled, and all proceedings therein stayed, and that the defendant should pay to the plaintiff a certain sum for the costs and damages ; it was held not to be a mere execu- tory accord, but that there was sufficient consideration in the settlement of the actions to support the promise to pay the money (a). (r) Wray v. Milestone, 5 M. & W. 21 ; CoUingbourne v. Mantell, 5 M. & "W. 289. (s) Gabriel ¥. Dresser, supra. (t) Gifford V. Whitlalcer, 6 Q. B. 249 ; Baillie v. Moore, 8 Q. B. 489. (m) Allies V. Probyn, 2 C. M. & B. 408. (x) McManus v. Bark, L. E. 5 Ex. 65 ; 39 L. J. Ex. 65 ; ante, p. 686. (y) Evans v. Powis, 1 Ex. 601 ; Henderson v. Stohart, 5 Ex. 99; Sail T. Floekion, 16 Q. B. 1039 ; 20 L. J. Q,. B. 208. (s) See post, p. 769 ; and see Exp. Burden, L. E,. 16 0. D. 675. (a) Crowther v. Farrer, 15 Q. B. 677. ACCOKD AND SATISFACTION. 759 Upon this principle a composition between debtor and Chai'. VI. creditors operates in satisfaction of the debts, and aiiords an Oomposi- answer to an action by one of the creditors upon the original creditors, liability ; "for such an agreement there is a good considera- tion to each creditor, namely, the undertaking by the other compromisiag creditors to give up a part of their claim" (6). " At common law, where a body of creditors accept a com- position they may either agree to take the promises of the debtor, with or without a surety, in satisfaction of the debts, or they may agree that payment shall be a condition pre- cedent, and that if the debtor pays the composition at a certain time and place, the creditors will accept that composi- tion in satisfaction of their debts. It is a question of con- struction of the instrument of arrangement " (c). In the one case the accord and satisfaction by the mere composition is absolute ; in the other case it is conditional upon payment, and in default of payment the creditor is remitted to his right to sue for the original debt (d). So if bills or notes given for the composition are dishonoured, the creditor is remitted to his original debt (e). But the composition agreement affords a good answer to an action for the debt, until default is made in payment under it (/). Payment of the composition to a trustee appointed to receive it on behalf of the creditors operates in satisfaction of the debt, though the trustee do not afterwards pay it over to the creditors (g) . The liability of a third party may be accepted in satisfac- ^^?-^^^^?^ tion of the debt of the origiaal debtor, under a valid agree- accepted ment of all the parties to that effect, which gives the creditor faction." a remedy against the third party (A). Such an agreement (5) Fercur.BmjdY.mnd,l'H..&'S. Ex p. Gilbeij, L. R. 8 C. D. 248; 947 ; 26 L. J. Ex. 166 ; Good v. Chees- 47 I/. J. B. 49. man, 2 B. & Ad. 328 ; Evans t. Fowls, («) Edwards v. Sandier, L. R. 1 1 Ex. 601 ; see ante, pp. 539, 668. 0. P. D. 111. (c) Mellisli, L. J., Se Satton, L. R. (/) Slater v. Jones, L. R. 8 Ex. 7 Ch. 726 ; 42 L. J. B. 12. 186 ; 42 L. J. Ex. 122. See post, (d) Edwards v. Coombe, L. R. 7 p. 798. C. P. 519; 41 L. J. C. P. 202; Be {g) CoAnphell v. Im Thurn, L. E. 1 Satton, supra; Newell t. Van Praagh, C. P. D. 267 ; 45 L. J. C. P. 482. L. E. 9 C. P. 96 ; 43 L. J. C. P. 94 ; {h) Case v. Barber, T. Raym. 450 ; 760 DISCHARGE OF CONTKACTS. Paet IV. before breach constitutes what is called " novation," as already noticed ; and the original contract is then rescinded by the new agreement («). So, the separate liability of one or more of joint debtors may be accepted in satisfaction and discharge of the joint liability of aU; as frequently occurs upon the retirement of a partner from a firm, and a continuance of the credit to the remaiuing partners (A). — -Where the creditor is himself indebted to a third party, the debtor, by agreement of all parties to that effect, may take upon himself the debt of his creditor in satisfaction and discharge of his own debt to him ; the transaction then operates in effect as an assign- ment of the debt by the creditor in payment of his own debt {I). Accord Accord and satisfaction made with one of several joint faction Creditors discharges the debtor as against all in respect of the Tioint^''^ claim, because the satisfied creditor would be incapable of ""d^hf joining as co-plaintifi: with the other creditors ; but in equity creditors of the same debt are presumptively entitled as tenants in common in equal shares, and satisfaction to one would then operate upon his share only, and would be no satisfaction to the others (»j). Accord and satisfaction made by one of several parties jointly liable, or jointly and severally liable to the same creditor for the same debt, discharges the claim of the creditor against all («) . Accord and satisfaction by joint debtors discharges their several liability, if any ; but a com- position under the bankruptcy law of a joiut debt, as in the ease of such a composition by a firm of partners, whether the creditor concur or not, does not discharge their several Ua- Cuxon V. ChaMey, 3 B. & C. 591 ; [l] Cochrane v. Gh-een, 9 C. B. N. S. Kemp V. Watt, 15 M. & "W. 672 ; 448 ; 30 L. J. C. P. 97. See post, Henderson v. Stobart, 6 Ex. 99. p. 1014. (i) See ante, p. 684. (m) Wallace v. KeUall, 7 M. & W. {k) Thompson v. Percival, 5 B. & 264 ; see Steeds y. Steeds, L. R. 22 Ad. 925 ; Thomas v. Shillibeer, 1 M. Q. B. D. 537 ; 58 L. J. Q. B. 302 ; & "W. 124 ; Zyth v. Ault, 7 Ex. 669 ; post, p. 779. 21 L. J. Ex. 217, overruling Zod^e (n) Nicholson v. Bevill, 4 A. & E. V. Sicas, 3 B. & Aid. 611. See ante, 675 ; ssepost, p. 780. p. 685 ; post, p. 1016. ACCOSD AND SATISFACTION. 761 bilities for the same debt(o). — Accord and satisfaction of a chap. vi. debt made by an agent of the debtor, or by a person pro- By agent, fessing to act for the debtor without previous authority, may be adopted by the debtor with the effect of discharging his liability (|>). (o) Simpson v. Henning, L. R. 10 ante, p. 694. Q. B. 406 ; 44 L. J. Q. B. 143. See (p) See post, p. 786. 762 DISCHAKGE OF CONTRACTS. Chapter YII. PAYMENT IN SATISFACTION. PAOE Payment ia Batisfaotion — damages for detention of debt — payment into Court , 762 Payment in satisfaction of bonds, covenants, and judg- ments 764 Transactions equivalent to payment — agreements to take less sum than the debt — payment by set-off in account — goods taken in payment 765 Bill or note taken in conditional payment — in satisfaction of debt — as collateral security — bill taken for specialty debt — debtor primarily liable upon bill taken — secon- darily liable — debtor not party to bUl — void bill taken — loss of bill — alteration of bill 768 Payment by banker's cheque — presentment of cheque .... 772 Payment of shares in company in cash 774 Receipt as evidence of payment — effect as to third party — receipt requiring stamp — receipt under seal — receipt in- dorsed on deed 776 Payment to joint creditors — payment by joint debtors .... 779 Payment to trustees — power to give receipts — payment to executors 781 Payment to agent — payment by cheque — by set-ofB in account — payment to partner — to solicitor 782 Payment by agent — by third party — payment by parties to bills 786 Appropriation of payments — by debtor — presumptive ap- propriation — appropriation in accounts — appropriation by creditor — debts not recoverable— debts barred by the statute — appropriation by law 787 PaetIV. Payment or tender after a breach of contract does not Payment Operate in performance of the contract, and may he refused ; faction'of ^^*' if accepted, it operates in satisfaction of the breach. breach. Payment at the time appointed is performance of the contract and operates in denial of a breach («). Payment or tender (a) Parke, B., Kington v. Xington, 134 ; 32 L. J. C. P. 33 ; see ante 11 M. & W. 234 ; WiUiams, J., p. 755. Chambers v. Miller, 13 C. B. N. S. PA.YMBNT IN SATISFACTION. 763 before the debt is due, if accepted, operates in rescission of Chap.vii. the contract before any breach {b). The debtor, by wrongfully detaining a debt after it is due, Damages does not render himself liable for any damages which may tion of happen to the creditor for want of the money by reason of '^^^'■ special circumstances not contemplated in the original con- tract. The damages for mere detention of the debt are what are called " nominal damages," — " a sum of money that may be spoken of, but that has no existence in point of quantity." Biit the right to nominal damages in point of law is material, because it entitles a creditor, in certain cases, to stand upon his strict right to bring an action, and to recover the costs of suit (c). If the creditor before commencing an action accepts the amount of bis debt in satisfaction he cannot afterwards sue for the merely nominal damages for detention (fi?) . But payment after action must be made and accepted in satis- faction of the debt, damages, and costs, in order to afford a complete bar to the further maintenance of the action (e). Payment after action of the debt only affords no defence to an action in respect of damages and costs ; which the plaintiff may proceed to recover (/). Thus in the ordinary case of the holder of a bill bringing several actions against the different parties liable upon it, payment in one of the actions is no bar to proceeding in the other actions to recover the costs (gf). — By Order XXII., r. 1, "where any action is Payment brought to recover a debt or damages, any defendant may ™*°^°™*- pay into Court a sum of money by way of satisfaction" ; and with or without a defence denying liabUity(A). And by (J) See ante, p. 741 ; Sichardson v. Wanless, L. E. 2 Ex. 275 ; 36 L J Sarris, Ij.B,. 22 Q.B.T).26S. Ex.153. (c) Maule, J., Beaumont v. Great- {g) Randalls. Moon, 12 C. B. 261; ■ 2 0. B. 499 ; Wilde v. Clarkson, 21 L. J. C. P. 226 ; Goodwin y. Cremer, 18 Q. B. 757 ; 22 L. J. Q. B. 30 ; Kemp v. Balls, 10 Ex. 607 ; 24 L. J. Ex. 47. (A) See Berdan v. Greenwood, L. R. 3 Ex. D. 251 ; 47 L. J. Ex. 628 ; Harper v. Bavi), L. R. 19 Q. B. D. 170 ; 56 L. J. Q. B. 444 ; Michols t. Mvem, L. K. 22 C. D. 611 ; 52 L. J. C. 383. 6 T. E. 303 ; Joule v. Taylor, 7 Ex 68. See^josi!, p. 908. {(d) Beaumont v. Greathead, 2 C. B 494. {e) Nosotti T. Fage, 10 C. B. 643 Cook V. Hopewell, 11 Ex. 555 ; 25 L, J. Ex. 71. (/) Ash T. Pouppeville, L. E. 3 Q B. 86 ; 37 L. J. Q. B. 55 ; Tetlcy v, 764 DISCHARGE OF CONTEACTS. Paet IV. rr. 6, 7, " the plaintifE may accept in satisfaction of the claim or cause of action the sum so paid in " («'). Debts on bonds, covenants and judg- ments. Payment post diem. Bond with special condition. By a technical rule of common law a debt acknowledged as presently due under seal, as a single bond, or a bond with a condition after forfeiture, or a covenant to pay a present money debt, could not be discharged by mere payment in satisfaction ; but only by matter of as high a nature, as by an acquittance under seal(^). The same rule applied to contracts of record, as judgment debts (/) . — By 4 & 6 Anne, c. 16, s. 12, it was enacted that in any action upon a siagle bond, or upon a judgment, payment of the money due upon such bond or judgment may be pleaded in bar of such action ; and in an action upon a bond conditioned for the payment of a lesser sum at a day or place certain, payment of the prin- cipal and interest due by the condition of such bond, though not made strictly according to the condition may be pleaded in bar, and shall be as effectual as if the money had been paid at the day and place according to the condition, and had been so pleaded. This enactment does not enable the obligor to discharge his liability by tender of payment post diem, if refused by the obligee {m). A set-off may be pleaded to the amount due (»t) ; or the sum due may be paid into Court (o) . A bond for payment of interest is within this statute (^). — Bonds with special conditions are regulated by 8 & 9 WOl. 3, c. 11, by which the obligee is entitled to have damages assessed for such breaches of the condition as he may prove, and to have judgment for the whole penalty as security for future breaches {q). A bond conditioned for payment of a less simi by instalments is within the latter, and not within the former statutes (r). Payment into Court in satisfaction in an action (i) See Mcllwraith v. Green, L. R. 14 Q. B. D. 766 ; Bullen & L. Preo. PI. 4th ed. T. 2, p. 287. (7c) See ante, p. 756. m Co. Lit. 291 a. (m) See ante, p. 741 ; and see Bullen & L. Preo. PI., supra. («) Collins V. Collins, 2 Burr. 820 ; Lee V. Lester, 7 C. B. 1008 ; see Att- wooll Y. Attwooll, 2 E. & B. 23. (o) See above, p. 763. [p) Lee V. Lester, supra. (q) Bullen & L. Preo. PI. 4th ed. tit. "Bonds." (r) Freston v. Lania, L. E. 8 Ex. 19 ; 42 L. J. Ex. 33. PAYMENT IN SATISFACTION. 765 on a bond under the above statute is admissible to particular Chap.yii. breaobes only and not to the whole action (s) . Various transactions may become equivalent in law to pay- Transao- ment in satisfaction by agreement of the parties. — It is a valentto general rule that payment of a less sum in satisfaction of a P^y™®''*- greater liquidated debt, operates only as a discharge pro tanto, of less sum and cannot in law discharge the whole debt without a release ^eM. under seal, or some valid consideration for abandoning the residue it) . But payment of a less sum may operate in satis- faction of a debt under a valid agreement to that effect : as if agreed to be paid at an earlier day, or at a different place (m) ; or under an agreement to abandon a defence to an action for the debt and to pay the costs {x) ; or under a composition of debts between the debtor and creditors [y) ; or under a com- promise of a doubtful claim (z) ; or to or by a third party (a). And a negotiable security, as a bill, note, or cheque, for a less amount than the debt may be given and accepted in satisfac- tion, though it is the security of the debtor only (b). A judgment creditor having agreed not to proceed upon the judgment upon the debtor paying a sum down and the balance of the judgment debt by instalments, and the debt having been so paid ; it was held that the agreement showed no consideration for the creditor abandoning interest on the judgment and he might issue execution to recover it (c). Payment of a less sum may operate in effectual discharge of an unliquidated or uncertain claim for a greater sum (d). And payment of a less sum may discharge a greater debt, (s) Order XXII. r. 1. Magnus, 11 East, 390 ; Jessel, M. E,., (t) Co. Lit. 212 b; PinneVs case, Couldrey y. Bartrum,'L.'R. 19 C. D. 6 Co. 117 a; Cumber v. Wane, 1 399; 51 L. J. C. 265. Strange, 426; 1 Smith, L. C. 9th ed. (z) Re Warren, 53 L. J. C. 1016. p. 366 ; Mtchv. Sutton, 5 East, 230 ; {a) Welby t. DraJce, 1 C. & P. 657; Sown T. Hatcher, 10 A. & E. 121 ; see Henderson v. Stobart, 5 Ex. 99 ; JFoakes v. Beer, L. R. 9 Ap. Ca. 605 ; Bidder v. Bridges, supra. 54 li. J. Q. B. 130 ; see Bidder v. (b) Sibree v. Tripp, 15 M. & W. Bridges, L. R. 37 C. D. 406 ; 57 L. 23 ; Gurkwis t. Clark, 3 Ex. 375 ; J. C. 300. Goddard v. O'Brien, L. R. 9 Q. B. D. (m) Finnel's case, 5 Co. 117 a. 37; see^osi!, p. 769. (x) Cooper Y. Parker, 15 C. B. 822; (c) Foakes v. Beer, supra. 23 L. J. C. P. 41. (d) Wilkinson v. Byers, 1 A. & E. (j/) See ante, p. 759 ; Steinman v. 106. 766 DISCHARGE OF CONTRACTS. Part IV. where it Lias that effect according to the law of the place of payment (e). Payment "Where an account is stated between two parties respecting in account, debts on both sides, and it is agreed that the debts on one side shall be set off against the debts on the other, leaving the balance only due, the transaction is equivalent to pay- ment of the debts set off, and may be so pleaded (/). " The way in which an agreement to set one debt against another of equal amount, and discharge both, proves a plea of pay- ment is this : if the parties met, and one of them actually paid the other in coin, and the other handed back the same identical coin in payment of the gross debt, both would be paid. When the parties agree to consider both debts dis- charged without actual payment it has the same effect "(jr). A written memorandum acknowledging such payment by set-off in account is a receipt which may require a receipt stamp (A). A set-off of cross claims may form part of the original contract, leaving the balance as the only debt in- curred («) . And money paid to third parties at the request of a person may be taken by agreement as payment to him- seK(/c). — Upon the above principle, under an agreement to lend money the set-off of a debt then due from the borrower is equivalent to an advance of the money for the purpose of supporting a mortgage to secure the amount (/) ; or to support a bill of sale describing the consideration as money then paid to the grantor, though no money in fact passed (m). But money retained by the lender as an intended set-off against accruing debts not yet due and payable cannot be truly so described (n) . — A payment thus made has the full effect of (e) Jialli y. Dennistoun, 6 Ex. 483. (t) See^os^, p. 868. (/) Co. Lit. 213 a ; Callander v. {k) Samlyn v. Betteley, L. R. 5 C. Howard, 10 C. B. 290 ; Ginffell v. I>ur- P. D. 327 ; 49 L. J. C. P. 465. /cms, 4 Ex. 720 ; and see a«fe, p. 101. (I) Kevan \. Crawford, L. R. 6 (g) Campbell, C. J., LivingstoneY. C. D. 29 ; 46 L. J. 0. 729. Whiting, 15 Q. B. 723; Amos v. (m) Hamhjn v. Betteley, supi-a ; Smith, 1 H. & G. 238 ; 31 L. J. Ex. Credit Co. v. Pott, L. R. 6 Q. B. D. 423; Mellish, L. J., Spargo's case, 295 ; 50 L. J. Q. B. 106 ; see ftm-arii L. R. 8 Ch. 414 ; see Strong v. Bird, v. Meek, 50 L. J. C. P. 187. L. R. 18 Eq. 315 ; 43 L. J. C. 814. (n) Richardson v. Sarris, L. R. 22 (/») Lucas V. Jones, 5 Q. B. 949 ; Q. B. D. 268. Livingstone \. Whiting, svjira. PAYMENT IN SATISFACTION. 767 payment in taking a dett out of the operation of the Statute CHAr.vii. of Limitations (o). And where the earlier items of an account are heyond the period of limitation, and the account is settled and a halance struck, the barred debts are effectu- ally paid, and the balance only remains due {p). So if debts founded upon illegal considerations are paid by set-off in account, the objection of the illegality is excluded (j). A mere open account, without any agreement to set off the cross items, is inoperative in discharging the debts, or in preventing the operation of the Statute of Limitations (r) . So the receipt of rents by a mortgagee in possession does not go in payment of interest without an appropriation and account stated to that effect (-s). And as a mere account stated of a debt is not conclusive, payment in the account, by set-off or otherwise, operates only to the amount paid, and is no answer to a claim of a larger sum for the same debt {t). The delivery and acceptance of goods or other consideration Goods at an agreed price in satisfaction of a debt is equivalent to payment, payment in money and may be so described in pleading {u) . And it may be given in evidence of payment in an action upon a contract under seal ; because the effect is not to con- tradict or vary the deed, biit to satisfy the breach (x) . A payment thus made is equivalent to payment in money in preventing the operation of the Statute of Limitations («/). It is a payment within the enactment of the bankrupt law which protects payments by or to a bankrupt, if received or paid without notice of an act of bankruptcy (s) ; and in the administration of assets (a) . (o) Scholey v. Walton, 12 M. feW. {t) See ante, p. 99 ; Smith v. Page, 510 ; Worthington v. Grimsditch, 1 15 M. & W. 683 ; Term t. Attwood, Q. B. 479 ; see post, p. 859. 6 E. & B. 691 ; 25 L. J. Q. B. {p) Williams v. Griffith, 6 M. & 408. W. .SOO; Ashiy v. James, 11 M. & (») Lit. s. 344; Co. Lit. 212 b; 9 W. 542. Co. 79 a, Feytoe's case ; Sands v. (?) Owens T. Benton, 1 C. M. & K. Burton, 9 East, 349 ; Saxty v. Wilkin, 711 ; see ante, p. 673. 11 M. & W. 622 ; see Graham t. Wil- {r) Waugh v. Cope, 6 M. & W. cocJcson, 46 L. J. Ex. 55. 824 ; C'ottam v. Partridge, 4 M. & Gr. (x) Smith v. Battams, 26 L. J. Ex. 271 ; Clark v. Alexander, 8 Scott, 232 ; see ante, p. 693. N. K. 147 ; ante, p. 101. iy) See post, p. 859. (s) Cockburn v. Edwards, L. B. 18 (z) 46 & 47 Vict. o. 52, s. 49 : see C. D. 449 ; 51 L. J. C. 46 ; see Cannan t. Wood, 2 M. & "W. 465. Worthington v. Grimsditch, supra. («) Re Lepine, (1892) 1 Ch. 210, 768 DISCHARGE OF CONIRACTS. PaetIV. a negotiable security, as a till or note, indorsed or de- Biiiornote livered to and taken by the creditor on account of a simple thedebtT— Contract debt, presumptively operates as conditional payment, tiona?'^" ^^^^ '^^j payment with the condition that it is paid when due payment, and that the debt revives if it is dishonoured (a) . And the conditional payment operates as consideration for the security by implying forbearance of the debt during its currency (6). So where payment is to be made by bUl by the terms of the contract, the bill given operates in conditional payment, and if dishonoured it is the same in effect as if no bill had been given (c) . If the security is paid when due, it is equivalent to payment of the original debt, and may be so pleaded (d) . If the security is partially paid, the debt is discharged pro tanto, and is revived for the residue (e). But a judgment recovered upon the security without satisfaction is no pay- Suspension ment or discharge of the debt (/). — While the security is dies.™"' current it affords an answer to the claim by suspending all remedies : as an action for the price of goods sold upon credit of a bill {g) ; or a bankrupt notice given by a judgment creditor, who afterwards takes a note payable at a future time for the debt (h) ; or a notice given to sell mortgaged premises under a power of sale, which is suspended if the creditor takes a bill on account of the debt, and revived if Effect on the bill is not paid («'). — So the conditional payment suspends the debt, the remedies on a lien for the debt, but without removing (a) KearsUke v. Morgan, 5 T. E. 732. See ante, p. 551 ; post, p. 911. 513 ; Behhaw v. Bush, 11 0. B. 191 ; {d) Thome \. Smith, 10 C. B. 22 L. J. C. P. 24 ; per cur. Currie v. 659. Misa, L. R. 10 Ex. 163 ; 44 L. J. {e) Bottomley y. S'littall, 5 C. B. N. Ex. 94 ; see James v. Williams, 13 M. S. 122 ; 28 L. J. C. P. 110. & "W. 828. (/) Brake t. Mitchell, 3 East, 251 ; (b) Baker v. Walker, 14 M. & W. Tarleton v. Allhtisen, 2 A. & E. 32 ; 465 ; Currie v. Misa, supra ; Stott T. but see Cambefort v. Chap^nan, L. R. Fairlamb, 53 L. J. Q. B. 47 ; ante, 19 Q. B. D. 229 ; 56 L. J. C. 639 ; p. 541 ; see Bills of Exchange Act, post, p. 807. 1882,8.27. iff) Paul v. Dod, 2 0. B. 800; (e) Miles v. Gorton, 2 C. & M. 504 ; Wat/ne's Iron Co. v. Morewood, 46 Valpy T. Oakeley, 16 Q. B. 941 ; 20 L. j. Q. B. 746. L. J. Q. B. 380 ; Griffiths v. Perry, (h) Exp. Matthew, L. R. 12 Q. B. 1 E. & E. 680 ; 28 L. J. Q, B. 204 ; D. 506. Ee Cumberland, L. E. 3 C. D. 803 ; (i) Woody. Murton, 47 L. J. Q. B. 45 L. J. B. 135 ; Gtciin v. Bolckow, 191. L. R. 10 C. D. 491 ; 44 L. J. C. PAYMENT ]N SATISFACTION. 769 the lien (A),; but if the seller has contracted to deliver the Chap. Vil. goods upon the credit of a hill, he has no lien until the credit has expired (1). The bill or note may he given and taken in satisfaction Bill or note taken m and discharge of the debt, the creditor taking upon himself satisfao- the risk of dishonour ; and the subsequent dishonour does not °"' revive the debt (m) . Whether a bill or note is given and taken in satisfaction or as conditional payment is a question of fact as to the intention shown by the parties ; the presump- tion being that it is a conditional payment with a recourse to the original debt («). But if the creditor chooses for his own convenience to take a bill or note or other form of credit of a third party, which is offered instead of cash, it is an absolute payment in satisfaction of the debt ; and he cannot upon dishonoiir of the security have recourse to his remedy for the debt (o). — By special agreement a bill or note may be Bill or note indorsed to the creditor and taken by him as a collateral collateral security for the debt, without suspending or affecting his ^''°^™ ^' other remedies (p). And a note of the debtor payable on demand received by the creditor for the debt would operate only as a collateral security, so long as it remained in his hands {q). In the case of a specialty debt or contract under seal at Bin taken common law, a bill or note given for the debt operated pre- ciaitydebt. Bumptively only as a collateral security, without affecting the remedy; and it operated iu payment only if in fact paid when due. " The cases in which the giving of the bill has (k) Ee London and Staffordshire Bh., Gr. 40; Byles, 3., Sottomley \. Nut- 34BeaT. 332; Zilj.S.G.ili; Ex p. tall, 5 C. B. N. S. 134; 28 L. J. Willoughby, L. E. 16 C. D. 604. C. P. 110. (?) Miles V. Gorton, supra; Gunn (o) Strong r. Hart, 6 B. & C. 160; T. Bokkow, supra; see Bunney v. Smith v. Ferrand, 7 B. & C. 19; Foyntz, 4 B. & Ad. 568 ; Tamvaco Mobinson v. Bead, 9 B. & C. 449 ; T. Simpson, 19 C. B. N. S. 453 ; 34 Anderson v. Sillies, 12 C. B. 499 ; 21 L. J. C. P. 268. L. J. C. P. 150 ; Litchfield y. Greene, (m) Langdale, M. E., Sayer v. IH. &N. 884; 26 L. J. Ex. 140. Wagstaff, 5 Beav. 423 ; Sard v. (p) Frmg t. Olarkson, 1 B. & C. Rhodes, 1 M. & W. 153 ; Sibree v. 14 ; Feacock v. Fursell, 14 C. B. N. S. Tripp, 15 M. & W. 23; see Be 728; 32 L. J. C. P. 266; i^osi, p. 771 ; London # Staff. Bh., 34 L. J. C. 420; see Jglesias t. Fiver Flate Bk., L. E. 34 Beav. 332. 3 C. P. D. 330. («) Goldshede v. Cotlrell, 2 M. & (?) Fer cur. Fearn y. Cochrane, 4 W. 20 ; Maillard T. Argyll, 6 M. & C. B. 274. L. 3d 770 mSOHARGE OF CONTRACTS. PaetIV. been held not to suspend the remedy on a demand by ' specialty, or for rent, may be accounted for on the ground that the legal implication of an agreement that the bill shall operate as a conditional payment does not arise, when, if it did, the plaintiff would be deprived of a better remedy than an action on a bin"(r). Thus a bill given for the debt afforded no defence to an action upon a money bond, by which the creditor might reach the real assets of the obligor (s) ; or to an action for rent, which ranks as a specialty debt and is attended with the remedy of distress (t). "Where a bill of sale under seal was given as security for a debt, providing that possession might be taken upon default in payment on demand, and a bill of exchange at four months was given for the same debt ; it was held that the bill operated only by way of collateral security and not in suspension of the debt or of the right of possession under the deed (»). But a note payable at three months given by a judgment debtor was held to be evidence of an agreement to suspend the judgment ; and suspension of the judgment was held sufficient considera- tion to support the note (a-) . Debtor Where a bill is given in conditional payment on which the liable on debtor himself is primarily liable, it lies upon him to account for its disposal in a way to discharge his liability : as by showing that it is not yet due ; or if overdue, that it has been paid ; or that the creditor has sold or indorsed it away, or other circumstances excusing non-payment on his part(y). — Debtor Jf the debtor is only secondarily hable, as drawer or indorser, secondarily . p i i -n • rr- • liable. the delivery of the bill is a sufficient prima facie answer to the claim ; and it lies upon the creditor to account for the non- payment in a way to revive the liability of the debtor ; for as holder of the bill he is bound to take all steps necessaiy to obtain payment and to preserve the rights of his debtor upon (r) P«) Burkinshaw v. Nicolls, L. R. 3 (A) Elkington's Case, L. R. 2 Ch. Ap. Ca. 1004 ; 48 L. J. C. 179 ; 511 ; 36 L. J. C. 593 ; Fellatfs Case, Me Ball, L. R. 37 C. D. 712; 57 L. L. R. 2 Ch. 527 ; 36 L. J. 0. 613. J. C. 288. (i) Pagki's Case, L. R. 6 CD. 681; (n) Re London Celluloid Co., L. R. 46 L. J. C. 779 ; Andress' Case, L. R. 39 G. D. 190 ; 57 L. J. C. 843 ; Bar- 8 C. D. 12C; 47 L. J. 0. 679; JJlUle's row's Case, L. R. 14 C. D. 432 ; 49 Case, L. R. 12 0. T>. 511 ; 48 L. J. L. J. C. 498 ; see Ariwt's Case, L. R. C. 820. 36 C. D. 702 ; 57 L. J. C. 195. {k) Kent's Case, L. R. 39 C. D. (o) lie Cordova Gold Co., (1891) 2 259 ; 57 L. J. C. 977 ; see Re Jones Ch. 580 ; 60 L. J. C. 701. Zlogd, 41 C. D. 159; 58 L. J. C. 582. {p) Mudford's Case, L. R. 14 C. D. (l) Ee Addlestone Linoleum Co.. L. 634; 49 li. J. C. 452; Appleyard's R. 37 C. D. 191 ; 57 L. J. C. 249 ; Ca^e, supra. see Re Almada Co., L. R. 38 C. D. {). An agent to collect bills has no authority to accept a sum less than the full claim on the bill and cancel the biU, without the special assent of his principal {x) . — Payment by Payment a cheque on a banker is considered as payment in cash and ty cheque, discharges the debtor, unless it is subsequently dishonoured ; though the agent does not pay over the amount (y). So with payment by a cheque crossed to the agent's banker, if the agent is intrusted to receive the money to account for as a debt, as in the case of a solicitor or commercial agent, and not merely to hand it over in specie, as in the case of a clerk or servant (2). A cheque drawn to the order of his principal, which the agent indorsed without authority and cashed at the bank, was held a good payment ; because the banker was pro- tected by Statute 16 & 17 Vict. c. 59, s. 19, against paying to such indorsement (a) . — But authority to take a cheque is re- Payment strioted by the scope of the agency ; and a clerk or shopman em- shopman""^ ployed to take cash over the counter is not authorized to receive (>-) See ante, pp. 425, 434. Sowardv. Chapman, 4 C. & P. 508. (s) Eolland t. Russell, 4 B. & S. (w) Sogarth v. JVherly, L. R. 10 14 ; 32 L. J. Q. B. 297 ; see Cox t. C. P. 630 ; 44 L. J. C. P. 330. Frentice, 3 M. & S. 344 ; Bamford v. (x) Bank of Scotland t. Dominion Shuttleworlh, 11 A. & E. 926 ; JJ'il- Bk., (1891) A. C. 692. Hams V. Deacon, 4 Ex. 397. («/) See ante, p. 773. it) Fry, L. J. , Pearson v. Scott, (z) Bridges v. Garrett, L. K. 5 C. P. li. K. 9 0. D. 204 ; 47 L. J. 0. 705. 451 ; 39 L. J. C. P. 251. (u) Williams v. Mans, L. R. 1 («) Charles v. Blackwell, L. E. 2 Q. B. 352 ; 35 L. J. Q. B. 111. C. P. D. 151 ; 46 L. J. 0. P. 368 ; (v) Pratt T. Villey, 2 0. & P. 350 ; ante, p. 773. 784 DISCHARGE OF CONTRACTS, Paet IV. Set-off in account with Payment to partner. Payment to solicitor. payment by a cheque sent in a letter (6) ; or to receive payment in any transaction beyond the scope of the employment (c). — Authority in an agent to receive payment presumptively does not authorize payment by a set-off in account of debts due from the agent to the debtor (cf) ; as by returning to the agent a cheque of his own (e). But payment by set-o£E may be authorized by usage ; as in the case of a broker buying and selling goods upon a running account with his principal according to a known general course of business (/) ; or of an insurance broker setting off losses and premiums with the underwriter according to the usage of Lloyd's {g). Upon the same principle money paid in to the London agent of a country bank and placed to the credit of their account was held to be payment to the country bank, though it stopped payment before receiving notice of the credit {h). Payment to one of a firm of partners discharges a debt to the firm, because each partner is general agent of aU the others within the scope of the partnership business («'). And the receipt of money by one partner in the ordinary course of business charges the firm (A-). But if the debtor has notice that the partner in receiving the payment is actiug without authority or in fraud of the other partners, the payment is invalid against the other partners il). — A solicitor retained to sue is authorized to receive payment of the debt or damages, until the authority is duly revoked (;») ; but payment to a solicitor suing without authority is no discharge («). So the solicitor of a defendant to whom costs are awarded is autho- (i) Eaye v. Brett, 5 Ex. 269. (c) Sanderson v. Sell, 2 C. & M. 304. (d) Pearson v. Scott, supra. \e) Underwood T . NichoUs, 17 C. B. 239; 25 L. J. C. P. 79. (/) Caiterall v. Eindle, L. E. 2 C. P. 368; 35 L. J. C. P. 161. [g) Bartlett v. Pentland, 10 B. & C. 760 ; Scott v. Irving, 1 B. & Ad. 605 ; Stewart v. Aberdein, 4 M. & W. 211 ; Sweeting v. Pearce, 9 C. B. N. S. 534 ; 30 L. J. C. P. 109 ; see ante, pp. 437, 446. {h) TFiUiams v. Deacon, i Ex. 397. {>) See ante, p. 451 ; Porter v. Taylor, 6 M. & S. 156. (k) St. Aubyn v. Smart, L. R. 3 Ch. 646 ; Biggs v. Bree, 51 L. J. C. 263 ; see ante, p. 455. (I) Piercy v. Fynney, L. E. 12 Eq. 69 ; 40 L. J. C. 404 ; ante, pp. 458, 779. ^^ (»n) Powel V. Little, 1 W. Bl. 8 ; per cur. Crozier v. Pillinq, 4 B. & C. 28; Bei'ins v. Suhm, 15" M. & W. 96. («) Poison V. F.uton, 1 T. R. 62. PAYMENT IN SATISFACTION. 785 rized to receive the amount (o) . Payment to the agent of the Chap, yii. solicitor retained is no discharge ; nor can the agent having received payment retain the money as against debts due to him from his principal (p). Nor is a payment made to the clerk of a solicitor valid, without proving his authority to receive it (q) . There is no general authority in solicitors to receive money for their clients in discharge of purchases or mortgages (r) ; or to receive money for investment generally (.s) . — The possession of the mortgage deed by the solicitor of the Receipt of mortgagee does not import any authority to receive either the debt and principal or interest; nor does an authority to receive the ^neyf* interest convey any authority to receive the principal ; conse- quently such receipt by one of a firm of solicitors without the knowledge of the others does not render the latter responsible for the money received (^). And the possession of an exe- cuted conveyance with the signed receipt for the purchase money indorsed does not alone import an authority in the solicitor of the vendor to receive the purchase money {u). But by the Conveyancing Act, 1881, s. 56, "Where a solicitor produces a deed having in the body thereof or indorsed thereon a receipt for consideration money, the deed being executed or the indorsed receipt being signed by the person entitled to give a receipt, the deed shall be sufficient authority for paying the same to the solicitor " («). — A pur- chaser cannot require that the vendor shall receive the pur- chase money in person, unless special circumstances render it reasonable ; it is, in general, sufficient for the vendor to supply evidence of his identity, and of the authority of his solicitor or agent to receive the money (y). The steward or deputy (o) Mason v. Whitehouse, i Bing. 91 ; Sims v. Bnitton, 5 Ex. 802. N. C. 692. (m) Viney v. Chaplin, 2 D. & J. {p) Yates Y. Freckleton, 2 Doug. 458 ; 27 L. J. C. 434 ; Ex p. Swin- 622 ; see JRobbins t. Fennell, II Q. B. banks, L. R. II 0. D. 525 ; 48 L. J. 248 ; Me Johnson, 50 L. J. Q. B. 541. C. 120 ; Gordon v. James, L. R. 30 ((?) See Kirion v. Braithwaite, 1 M. C. D. 249. & W. 310 ; Finch v. Boning, L. E.. 4 (i) See Day v. Woolwich B. S C. P. D. 163. L. E. 40 0. D. 491 ; 58 L. J. C. ()•) Bourdillon v. Roche, 27 L. J. 280; and see Trustee Act. 1888, C. 681 ; ITithinglon v. Tate, L. R. 4 ss. 2, 3 ; Re Bellamv, L. R. 24 C D Oh. 288. 387 ; 52 L. J. C. 870 ; ante, p. 782. (.9) See ante, p. 456, u. (A). {y) Viney v. Chaplin, supra ; Essex [{) IJ'illcinson v. Candlish, 5 Ex. v. Baniell, L. R. 10 C. P. .338. L. 3 E 786 niSCHAROE OF CONTRACTS. Part IV. steward of a manor appointed to give admittance to a copy- hold tenant is presumptively authorized to receive payment of the fines due to the lord on admittance (z) . Payment by agent. Ratifica- tion of payment. Payment ty third party. Payment by an agent is equivalent to payment by the debtor ; and a receipt given by the creditor to an agent of the debtor acknowledging payment, upon faith of which the debtor accounts with his agent upon the footing of payment, is conclusive against the creditor, though the agent has not in fact paid the debt («). A mere authority given to an agent to pay a debt is revocable, and gives the creditor no claim against the agent ; but an assignment of funds to an agent or trustee for the payment of creditors may create a valid trust in their favour. Such an assignment, unless the creditors are parties to it, or unless communicated to them and accepted on their part, operates merely as a voluntary agency or trust for the benefit of the debtor himself and is revocable {b). — Pay- ment by a person professing to act for the debtor, though without authority in fact, if ratified by the debtor, operates as a payment by the debtor himself (c) . The ratification may be made after the commencement of an action by the creditor for the recovery of the debt ; as by pleading payment to the action (d). But at any time before ratification by the debtor, it is competent for the creditor and the person paying the debt to rescind the payment and return the money, and the debtor then remains liable (c). — A payment by a third party without any actual or professed authority has been held to be inoperative to discharge the debtor (/). But this doctrine has been questioned, as being contrary to the maxim of the [z) Bridges v. Garrett, L. K. 5 C. P. 451 ; 39 L. J. C. P. 231. (a) See ante, p. 777. {b) Walwyn v. Coults, 3 Mer. 707 ; Garrard v. Lauderdale, 3 Sim. 1 ; 2 Russ. & M. 451 ; liarland v. Biiils, 15 Q. B. 713 ; Glegrj v. Rees, L. E. 7 Ch. 71 ; 41 L. J. C. 243 ; Sander's Trusts, 47 L. J. C. 6G7 ; Johns v. James, L. R. 8 C. D. 744 ; 47 L. J. C. 853 ; Jlendersoii v. liot/isc/ii/ds, L. R, 33 C, D. 459 ; 56 L. J. C. 471. (c) Mead y. Goldring, 2 M. & S. 86 ; BeUhaw t. Bush, 11 C. B. 191 ; 22 L. J. C. P. 24. See ante, p. 390. ((?) Belshaw v. Bush, supra; Simp- son V. Bggington, 10 Ex. 845 ; 24 L. J. Ex. 312 ; see Walter v. James, L. R. 6 Ex. 127 ; 40 L. J. Ex. 105. [e) Walter v. James, supra. if) James v. Isaacs, 12 C. B. 791 ; 22 L. J. C. P. 73 ; liej?,p v. Balls, 10 Ex, 607 ; 24 L. J. Ex. 47 ; lucas y. Wilhinson, 1 H. & N. 420 : 26 L J. Ex. 13. PAYMENT IN SATISFACTION. 787 civil law, " debitorem ignarum, sen etiam mvitum, sohendo Chap. VII. liberare possumus " [g). Payment of a debt by a third party may be made with the intention of keeping the debt in force and reserving the benefit of it, without discharging the debtor (/*). — In the case of bills of exchange, in an action Payment ... by parties agamst an acceptor payment by the drawer or indorser is no to bills, defence, and the holder may recover in his own right, or as trustee for the drawer or indorser to the amount paid by them ; upon the presumption that the acceptor is the party primarily liable (?'). And the bill after such payment con- tinues negotiable until paid by the acceptor at maturity {k) . But in the case of an accommodation acceptance payment by the drawer, being the party primarily liable, discharges the bill {I). Payment at or after maturity by or on behalf of the acceptor discharges the bill (m) ; but payment before maturity, even by the acceptor, is a discount or purchase of the bill, and the bill continues negotiable («). It is a general rule of law, " that the party who pays money Appro- has the right to apply that payment as he thinks fit. If pl^ent— there are several debts due from him he has a right to say to ^^ "iebtor. which of those debts the payment shall be applied" (o). If the creditor do not consent to apply the money tendered according to the declared intention of the debtor, he may refuse it ; but if he in fact accepts it, he must apply it to the account on which it is paid ; and what he then says to the contrary is immaterial, according to the maxim, nmi quod dictum, sed quod factum est inspicitur {p). (ff) Willes, J., Cook Y. Lister, 13 Randall t. Moon, 12 C. B. 261 ; 21 C. B. N. S. 594 ; 32 L. J. C. P. 126. L. J. C. P. 226 ; Cook v. Lister, supra. (h) Mclntyre v. Miller, 13 M. & (m) Bills of Exchange Act, 8.59(1); W. 725 ; Lucas t. Wilkinson, supra. see Bartrum v. Caddy, 9 A. & E. 275 ; (i) Bills of Exchange Act, s. 59 (2) ; Lazarus v. Cowie, supra. Jones V. Broadhurst, 9 C. B. 173 ; («) Morley v. Culverwell, 7 M. & W. Williams v. James, 15 Q. B. 498 ; 174 ; Attenborough t. Mackenzie, 25 Mlsain T. Denny, 15 C. B. 87 ; 23 L. L. J. Ex. 244 ; see Glasscock v. . J. C. P. 190 ; Thornton v. Maynard, L. E. 24 Q. B. D. 13 ; 59 L. J. Q. L. B. 10 0. P. 695 ; 44 L. J. G. P. B. 51. 382. (o) Bayley, J., Simson v. Ingham, (k) Callow V. Laivrence, 3 M. & S. 2 B. & C. 72 ; see Grant, M. E,., 93. Clayton case, 1 Mer. 605. (I) Billsof Exchange Act, 8. 69(3); (p) See Croft y. Lumley, 27 L. J. Lazarus v. Cowie, 3 Q. B. 459 ; see Q. B. 321 ; 6 H. L. C. 672 ; Byles, 3e2 788 DISCHARGE OF COM'RiCTt!. Paet IV. An appropriation by the debtor may be inferred from the Presump- oiroumstances, where not declared in express terms. " If a priation man sends money to another and that other receives it, the ty debtor, g^.^^ point is what was the intention with which it was sent ; and if that cannot be ascertained by direct proof, it must be got at by circumstantial evidence ; and whatever is the inten- tion that must prevail unless only the other elects to return the money" (y). Accordingly payment of the exact amount of one of the debts is presumptively appropriated to the dis- charge of that debt ; payment of a sum with discount deducted is presumptively appropriated to a debt upon which discount may be claimed, rather than to a debt for which the credit has expired (r) ; and as between admitted and disputed debts, a payment is presumptively referred to a debt admitted (s). A payment made in answer to an application for a specific debt is presumptively made in discharge of the debt applied for ; and if one payment is made to an application for several debts of a like kind it is presumptively appropriated propor- tionately to all {fj. Payment by a person who is indebted in his own right and also as an executor is presumed to be made in discharge of his own debt ; but as between debts incurred by himself and his wife's debts which he has incurred by marriage there is no such presumption (u). A payment made out of the proceeds of the sale of a mortgaged estate is pre- sumed to be appropriated to the discharge of the mortgage debt («). Where a payment was made upon an account con- taining debts for rent and other matters, it was held that the creditor could raise no presumption of rent remaining unpaid in order to claim a forfeiture for non-payment (y). — There is J., Kitchinv. Hawkins, L. B. 2 C. P. (s) Burn v. Bolton, 2 C. B. 476. 31 ; and see Bay v. McLea, L. R. 22 (() Shaw v. Fieton, 4 B. & C. 715 ; Q. B. D. 610 ; 58 L. J. Q. B. 293 ; see Kirkpatrick v. S. Austr. Ins., ante, p. 757. L. R. 11 Ap. Ca. 177. (q) Knight-Bruce, L. J., Nash v. («) Goddard t. Cox, 2 Strange, Hodgson, 6 D. M. & G. 474 ; 25 L. J. 1194. C. 188 ; see Ellenborough, C. J., {x) Young v. English, 7 Beav. 10 ; Newmarch v. Clay, 14 East, 244. see Storcld v. Eade, 4 Blng-. 164. (r) Marryatts v. White, 2 Stark. (y) Zoulher v. Seavn; L. R. 41 102; see Bell V. Buckley, 11 Ex. 631; C. D. 248 • 68 L J C 485 25 L. J. Ex. 163. PAYMENT IN SATISFACTION. 789 no general presumption in favour of a surety that a payment Chap. vii. is appropriated to the debt which he has guaranteed, though Guaran- he was not informed of any other debts when he gave his ®® guarantee, unless the payment was demanded at his request (z) . And in the absence of stipulation to the contrary, either the debtor or, if he does not, the creditor may appropriate a pay- ment to an unguaranteed debt («) . But a creditor holding a security which covers several debts, one of which is guaranteed by a surety, must appropriate the proceeds of the security first in discharge of the guaranteed debt (6) . — A composition Composi- f or debts implies an appropriation of payments proportionately tank- to every debt ; and the creditor who accepts the composition ™^ ''^' upon several debts cannot appropriate the whole amount to some only in preference to others for which he may have other remedies (c) . Consequently if one of the debts or any part of a debt be guaranteed by a surety, the creditor must allow the composition in reduction, and charge the surety only for the balance {d) ; and if the surety have previously paid the debt in full, the creditor will be trustee for him as to the composition upon that debt (f) . The same rule applies with dividends in bankruptcy ; they are appropriated rateably in payment of all the debts (/). In banking accounts and accounts of a like kind which are Appro- passed between the parties and accepted as correct, as a general aocoimts. rule, " there is no room for any other appropriation than that which arises from the order in which the receipts and pay- ments take place and are carried into the account ; presum- ably it is the sum first paid in that is first drawn out ; it is the first item on the debit side of the account which is dis- charged or reduced by the first item on the credit side ; the appropriation is made by the very act of setting the two items (z) Xirit/ r. Marlborough, 2 M. & C. D. 144 ; 48 L. J. C. 348 ; see ante, S. 18 ; WilliamsY.Eawlinson,Z'Smg. p. 384. 71; Wright Y. Sickling, Li. '&. 2 C. P. (c) Thompson v. Hudson, L. R. 6 199 ; 36 L. J. C. P. 30 ; see Shaw v. Ch. 320. Ficton, supra. (d) Bardwell v. Lydall, 7 Bing. (a) London ^ Go. Bk. v. Terry, L. 489 ; Gie v. Pack, 33 L. J. Q. B. 49. E. 25 C. D. 692 ; 53 L. J. 0. 404. (e) JPaley v. Field, 12 Ves. 435. (i) Fearl v. Deacon, 1 De G. & J. (/) Raikes v. Todd, 8 A. & E. 846 ; 461 ; Xinnaird v. Webster, L. R. 10 see Martin v. Brecknell, 2 M. & S. 39. 790 DISCHARGE OF CONTllACTS. Pabi IV. against each other. Upon that principle all accounts current are settled, and particularly cash accounts " {g). Accordingly where one of a firm of partners dies or retires, and the sur- viving or continuing partners carry on the dealings with a creditor, joining the transactions of the old and new firms in one entire account, payments entered in the account by the continuing partners are presumptively appropriated to the earlier debts and in discharge of the old firm ; and conversely, credits entered to a debtor of the firm are presumptively appropriated to his earlier debts {h) . The same principle applies to the accounts of a cost book mining company, not- withstanding changes in the shareholders («) ; and to the accounts between a joint stock company and their banker in favour of former shareholders, who are exonerated from con- tributing to the balance due on winding up the company, if sufficient payments have been made to the bank to discharge what was due when they ceased to be shareholders (k) . Such appropriation of payment in account will discharge a lien which the banker holds upon title-deeds for advances to a customer {I) ; and will take the balance of the account out of the Statute of Limitations, though the earlier items were barred by the statute (m). — But the above presumption of payment in banking and other like accounts may be rebutted by evidence of a different intention : as that the entry in question was made merely in correction of a mistake on the other side of the account according to practice of bookkeep- ing (n) ; or that the entry was of a payment by a bill which was found to be forged (o) ; or that the entry was fraudu- lent (p) ; or that the entry was a debt upon a bond, note or other security given as a continuing security for the current balance ((/) Grant, M. E., Clai/ion's case, 1 (A) Bateman's case, 42 L. J. C. Mer. 608 ; Field Y. Can; 5 Bing. 13. 577, (A) Clayton's case, 1 Mer. 572; (?) London # Co. Jil-. r. SatcUffe, Sterndale t. HanUnson, 1 Sim. 393 ; L. E. 6 Ap. Ca. 722 ; 51 L. J. C. 28. Bodenham v. Purchas, 2 B. & Aid. (in) ^ee ante, p. 161 ; post, p. 860. %9; BrooJcev.Enderhy, 2B. &B. 70; («) Martin, B., Bell \. BmkUij, Hooper v. Kemj, L. R. 1 Q. B. D. 25 L. J. Ex. 163 ; 11 Ex. 631. 178 ; see Newmarch v. Clay, 14 East, (o) Bell v. Buckley, supra. 239 ; Simsonv. Ingham, 3 B. & 0. 66. (p) Laccy v. Sill, L. E. 4 C. D. (i) Geake v. Jackson, 36 L. J. C. P. 637 ; 47 L. J. C. 161. 108, PAYMENT IN SATISFACTION. 791 of account, and therefore not intended to be paid until the Chai'. Ttl. account was closed (q). — In the case of trust money, or money Trust held in any fiduciary relation, paid by the trustee into his banker's account, the above rule is applied subject to the presumption in favour of a beneficiary, that the trustee draws out his own money before drawing the trust money, leaving the balance charged with the trust (r). Only if the balance of the account is not sufficient to satisfy all the beneficial claimants, the rule applies strictly between them, and the money first paid in is presumed to be first drawn out (.s). Where there is no appropriation by the debtor, either in Appro- terms or by inference from circumstances, the creditor has the creditor, right of appropriation. " According to the law of England the debtor may, in the first instance, appropriate the payment, sohitur in modum solve nt is ; if he omit to do so, the creditor may make the appropriation, recipitur in modum recipieiitis " (t). The creditor may appropriate such payment to the debt for which he has an inferior remedy or security : as a simple con- tract debt instead of a specialty debt {u) ; or to an equitable debt instead of a legal debt (x) ; or to a debt which is un- guaranteed, instead of one for which he has a surety (y). But he cannot appropriate the payment to a disputed debt (s) . Upon the same principle a creditor holding a security covering several debts may apply the proceeds of the security to any one of the debts in preference to the others (a) ; unless one of the debts is guaranteed by a surety, in which case the surety becomes entitled to the benefit of the securities for the debt (J). — The creditor may appropriate the payment to a debt which Claima not he could not recover by action, if supported by a sufficient con- able by action. (q) Senniher v. Wigg, 4 Q. B. 792 ; (t) Tindal, C. J., Mills t. Fowkes, see Ee Boys, L. R. 10 Eq. 467 ; 39 5 Bing. N. C. 461. L. .T. C. 655 ; City Discount Co. v. (u) Peters v. Anderson, 5 Taunt. McLean, L. R. 9 C. P. 692 ; 43 L. J. 596. C. 344. {x) Bosanquet v. Wray, 6 Taunt. (r) Brown v. Adams, L. R. 4 Ch. 597 ; see Goddard v. Sodyes, 1 C. cS: 764 ; 39 L. J. C. 67 ; Be Sallett's M. 33. Estate, L. R. 13 0. D. 696 ; 49 L. J. {y) See ante, p. 789, n. (a). C. 415 ; overruliug JPennell v. Beffell, (z) Burn v. Boulton, 2 C. B. 476 ; 4 D. M. & G. 372. ante, p. 788. (s) Hancock v. Smith, L. R. 41 (a) Ex p. Dickin, L. R. 20 Eq. C. D. 456 ; 58 L. J. C. 725. 767 ; 44 L. J. B. 113. («) See ante, pp. 384, 789. 792 DISCHARGE OF CONTRACTS. r.iRT IV. Debt barred by statute of limita- tions. Time of appropria- tion. sideration : as a debt under a contract within the Statute of Frauds (c) ; a debt of the solicitor of a corporate body for his bill of costs, which he could not recover by action for want of a retainer under the corporate seal ((/) ; a debt for spirituous liquors supplied under circumstances which create a statutory disability to sue (e). But where a builder had executed a building contract, and extra works for which he had not the authority required by the contract, it was held that he had no legal or equitable claim for the extra works to which he could appropriate a payment (/). And a solicitor having received a payment on account of his bill of costs cannot ap- propriate it to the taxable charges and leave the non-taxable charges for recovery by action (g). — The creditor may appro- priate a general payment on account to a debt then barred by the Statute of limitations, instead of more recent debts then due. But the appropriation by the creditor only does not constitute such part payment of a debt as will take the balance out of the operation of the statute ; it requires an appropriation by the debtor himself to operate as an admis- sion of the balance remaining due (h). Where a person in- debted upon three promissory notes, two of which were then barred by the statute, paid a sum on account of interest gene- rally ; it was held that it must be presumed that he intended the payment either upon all three notes, or upon the later only ; and therefore that the later one, to which the creditor had appropriated the interest, was revived by the pay- ment (4). — The creditor may exercise his right of appropria- tion at any time whilst the position of the debtor remains unaltered ; and he is not bound by an intended appropriation until it has been communicated to the debtor ; he is not con- eluded by entries in his own books or accounts, or in a pass- (c) Abbott, C. J., Mat/field v. Wachky, 3 B. & C. 362. {d) Arnold v. Mayor of Foole, 4 M. & G. 860 ; see ante, p. 514. (e) Fhilpott V. Jones, 2 A. & E. 41 ; Crookshank t. Rose. 6 C. & P. 19; Owens V. Denton, 1 C. M. & K. 712 ; see ante, p. 644. (/) Lamprell v. Billericay Union, 3 Ex. 283. {g) James v. Child, 2 C. & J. 678. (A) Milh T. Fowkes, 5 Bing. N. C. 455 ; Waters v. Tompkins, 2 C. M. & E. 723 ; TVaugh v. Cope, 6 M. & W. 824; see Burn y. Boulton, 2 C. B. 476 ; post, p. 860. [i) Nash V. Hodgson, 6 D. M. & Gr. 474; 25 L.J. C. 186. PAYMENT IN SATISFACTION. 793 book of the debtor, until the account has been delivered to Chap. vii. and accepted by the debtor, after which he is precluded from altering the statement of account in this respect (/i). And the creditor has no right of appropriation of a payment received from a third party without the knowledge of the debtor (l). If neither the debtor nor the creditor make any appropria- Appro- tion, the law appropriates the payment upon equitable prin- by Uw? ciples ; and prima facie to the earlier debt (lu) . Where a broker, contracting as principal, sold and delivered several parcels of goods to his employer, who paid a sum to his general account with the broker ; the broker having become insolvent, it was held that the payment should be apportioned between the several owners of the goods sold, leaving the balance only due upon each sale («). Where there are two contracts one lawful and the other void for illegality, the law appropriates a general payment to the legal debt ; though if a payment is expressly appropriated to the illegal contract, the money cannot be recovered back (o) . [k) Grant, M. JR., Clayton's cafe, (in) Tindal, C. J., Mills y. Fowkes, 1 Mer. 606 ; Simsoii v. Ingham, 2 B. 5 Bing. N. C. 461 ; Grant, M. E,., & C. 6.5 ; see Hooper v. Keay, L. K. Clayton's case, 1 Mer. 606. 1 Q. B. D. 178. {«) Favenc v. Bennett, 11 East, 36. (I) Waller v. Zacy, 1 M. & G. 54. (o) Wright v. Laing, 3 B. & 0. 165 ; see ante, p. 673. ^94 DISCHARGE OF CONTKACTS. Chapter VIII. EBLEASB. PAGE Release -under seal — efBeot in estoppel — release ty agree- ment not under seal 794 Construction of release : — release of actions, debts, and demands — general release restricted by recital and object of deed — conditional release — covenant not to sue 796 Release of co-debtor — reserve of remedies against co- debtor — reserve of remedies against surety 799 Release by co-creditor — release obtained by collusion and fraud 802 Release under seal. Effect in estoppel. The term release applies to the discharge of a right of action by act of the party entitled. Release of a right of action, whether the cause arose upon simple contract, or contract under seal, or contract of record," is required by common law to be made by a deed under seal («). A release not under seal can only operate if given upon a valid consideration ; that is, by way of accord and satisfaction (S) . A release under seal, being subject to the rules and incidents of a contract under seal, does not require a consideration to support it, either at law or in equity (c) ; the acceptance of the release by the releasee is presumed {d) ; and if made by a deed inter partes, it cannot operate- directly as a release to a person not party to the deed (e) . — A release under seal also operates in estoppel against the party executing it, according to its terms (/) ; and no exception or modification of a release (o) Co. Lit. 264 a, b ; 291 a ; Parke, B., Barker v. St. Quintin, 12 M. & W. 453 ; Harris v. Goodwyn, 2 M. & G. 405. (4) See ante, p. 755 ; Littledale, J., Willoughhj v. Backhouse, 2 B. & C. 824 ; per cur. Be Bussche v. Alt, L. R. 8 C. D. 314. {c) See ante, p. 124 ; PinneVs ease, 5 Co. 117 b; Brett, M. R., He Gar- nett, L. R. 31 C. D. 8. (d) See ante, p. 118. (e) See ante, p. 368. (/) See ante, pp. 130, 778. KBLEASE. 795 under seal by a mere parol agreement or understanding Ch. Vlll. between the parties at the time of its execution could be pleaded at common law {g) . But in equity it may be cor- rected or set aside upon sufficient grounds, as of fraud or mistake ; and under the Judicature Act the like jurisdiction may be exercised in all divisions of the High Court. Thus it may be shown that the amount for which the release purports to have been given was stated under a mistake (h) ; or that the release was worded in general terms in ignorance of the claim to which it was afterwards sought to apply it contrary to the intention (?) . And a plea of release to a claim for an account may be met by a claim for a discovery and examination of the account alleged to be released {k) . A release, or agreement amounting to a release, upon a Release by- valid consideration and in the form of a binding contract, not under though not under seal, may be effectual in equity in discharge ^^'^'" of the debt (l) ; but a voluntary release without deed and without consideration is equally inoperative in equity and in law. "A mere waiver signifies nothing more than an ex- pression of iatention not to insist upon the right ; which in eqxiity will not, without consideration, bar the right any more than at law accord without satisfaction would be a plea"(«i). A representation made by the creditor to his debtor of his release or abandonment of the debt, which the debtor acts upon to the material alteration of his position, may operate in equity as effectually, to the extent to which it is acted upon, as if the creditor had in fact executed a release (w). Where a mortgagee represented to the mort- gagor, who was about to sell the mortgaged property to pay (ff) Tindal, C. J., Cocks v. JS^ash, (l) Taylor t. Manners, L. R. 1 Ct. 9 Bing. 345 ; Srooks v. Sluart, 9 A. 48 ; 35 L. J. C. 128. & B. 854; see ante, pp. 131, 692. (m) Grant, M. E,., Stackhouse v. (A) Brooke v. Saymes, L. R. 6 Eq. Barnston, 10 Ves. 466 ; Tufnell v. 25 ; see Harding v. Ambler, 3 M. cfe Constable, 8 Sim. 69 ; Cross v. Sprigg, W. 279. 6 Hare, 552; Feace v. Hains, 11 (i) lyall v. Edwards, 6 H. & N. Hare, 151. 337 ; 30 L. J. Ex. 193 ; see Eccles. (n) -Yeomans v. Williams, L. R. 1 Commiss. v. North Eastern Ey., L. R. Eq. 184 ; 35 L. J. C. 283 ; see Flower 4 C. T>. 845. T. Marten, 2 M. & Cr. 459 ; Strong v. (k) Brooks v. Sutton, L. R. 5 Eq. Bird, L. R. 18 Eq. 315; 43 L. J 0. 361; 37 L. J. C. 311. 814. 796 DISCHARGE OF CONTRACTS. Paet IV. Renuncia- tion of ■bills and notes. off the debt, that he might continue to occupy it without paying rent or interest, and the mortgagor accordingly did so during the life of the mortgagee ; it was held that the interest had been in fact released, and that the mortgagor might redeem upon payment of principal and only so much interest as had accrued due since the death of the mort- gagee (o). Also the giving up of the security for a debt, with the intention of releasing the debt, operates as a release in equity, if not at law {p). — An exception to the rule of common law requiring a release under seal occurs with bills of exchange and promissory notes, which are regulated by rules founded on the custom of merchants ; and the liability upon these instruments, both before and after they have be- come due and payable, may be discharged by the holder by express renunciation or waiver without deed and without consideration {q). Construc- tion of re- lease. Eelease of actions, debts, and demands. A release of all actions includes not only actions pending but also debts and causes of action then existing ; but it does not extend to judgments and executions (r). A release of all actions does not discharge a covenant before breach, as a covenant to build a house, or to repair, or to pay rent, or to make an estate ; because at the time of the release there is no debt or cause of action existing ; but a release of all covenants is a good discharge of the covenant before it is broken (s). A release of all debts or duties extends to all things that are then certain, and therefore discharges judgments and execu- tions ; but it does not extend to a liability to account, tlie result of which is uncertain it) . It extends to debts then due though payable at a future time ; but it does not discharge contingent debts payable upon the happening of an uncertain event'(M) • Nor can it discharge debts or liabilities incurred (o) Teomans v. Williams, supra. (p) Richards v. Sijms, 2 Eq. Ca. Abr. 617; see Cross v. Sprigg, 6 Hare, 556; Turner, L. J., Taylor y. Manners, L. R. 1 Ch. 56. (j) See ante, p. 688; Bills of Ex- change Act, s. 62. (»•) Co. Lit. 285 a; 8 Co. 152 a, Altham's case. (s) Co. Lit. 292b; 5 Co. 71 a, Soe's case ; Hancock v. Field, Cro. Jao. 170 ; Wilton V. Bi/e, Ci'O. Jao. 486. {t) Co. Lit. 291 a. (w) Co. Lit. 292 b; Soe's case, 6 RELEASE. 797 subsequently to the release ; as the acceptance of a bill after a Ch. viii. release given to the drawee [x). A release of all claims and demands is the most extensive form of release, and discharges all covenants, conditions, obligations, contracts and remedies, and all actions and executions (y). If given after the com- mencement of an action it discharges not only the debt or cause of action but also the claim for damages and costs, and may be pleaded generally to the action (s). The release of a debt also discharges all securities held for the debt, as against t]ie debtor («). A release in general terms is construed as restricted by the General recitals in the deed to the particular object expressed ; as by restricted a recital of the particular debt or class of debts to which alone and oblect it is intended to apply [b) . A general release in a composi- °f 'i^^'i- tion deed is construed as restricted to the debts and liabilities which are the subjects of the composition and provable under it (c). A release of all actions whatsoever was construed as restricted in operation by a recital stating the object of the deed to be the putting an end to actions then pending between the parties ; and evidence was admitted to direct and restrain the application of the release to the actions intended {d). Upon this principle a general release by a creditor having a separate debt, and also a joint debt as partner with others, due from the releasee, is construed as presumptively restricted to the separate debt (e). And a release of a debtor owing a separate debt, and also a joint debt as partner in a firm in- debted to the same creditor, is presumptively restricted to his separate debt (/). Where a release of debts was executed Co. TOb; 8 Co. 153a, AUhani' s case ; Sylton, 2 Ves. sen. 310; Payler v. Tynan v. Bridges, Cro. Jao. 300. Homersham, 4 M. & S. 423 ; Zindo v. [x) AsliUn V. Freestun, 2 M. & G-. Zindo, 1 Beav. 496 ; Turner v. Turner, 1 ; Hartley t. Manton, 5 Q. B. 247 ; L. R. 14 C. D. 829; see ante, p. 189. see L. Westbury, Zondon ^ S. TF. («) Sazelgrove v. House, L. E. 1 Sy. V. Blachnore, L. K. 4 H. L. 623. Q. B. 101 ; 35 L. J. Q. B 1 • Gresty (y) Co. Lit. 291b; 8 Co. 153 b, v. Gibson, Ij.B,. 1 Ex. 112; 35 L. J. Althain's ease. Ex. 74 ; Fazakerly v. Knight, 6 E & {z) Tetley v. Wanless, L. K. 2 Ex. B. 795 ; 26 L. J. Q. B. 30. 275 ; 36 L. J. Ex. 153 ; see ante, {d) Simons v. Johnson, 3 B & Ad p. 763. 175. {a) Cowper v. Green, 7 M. & W. (e) Bain r. Cooper, 9 M. &W 701 633. {/) Fx p. Kirk, L. R. 5 C. D. (b) Hardmcke, L. C, Samsden v. 800; 46 L. J. B. 101. 798 DISCHARGE OF CONTRACTS. Part IV. Condi- tional release. Condition precedent. Condition subse- quent. Covenant not to sue. by creditors, with a blank left for filling in the amount of the debts ; it was held that though it could not be filled in after execution, the deed operated as a release of the existing debts, which might be proved by extrinsic evidence {g). A release may be conditional upon the happening of some event or contingency : as in a deed of composition with cre- ditors, providing that if any creditor sue for his debt before the time allowed for payment of the composition, the deed may be pleaded in bar as a release [h) ; and in a deed of arrangement, for the debtor to carry on his business duriag a certain time for the benefit of his creditors, and if any creditor should interfere with him during that time, the deed should be pleaded in bar to an action by that creditor ii). The effect of the conditional release under such deeds extends only to an action or proceedings for the debt brought contrary to the terms of the deed ; but not to discharge the debt itself, so as to deprive the creditor of his claim to the composition [k). — A release may also be subject to a condition subsequent defeating it in a certain event ; as in the case of a deed of composition with creditors containing a release, with a proviso that if default be made in payment of the composition the deed shall be void and the creditors remitted to their original claims (/). A covenant made by a creditor with his debtor not to sue him at any time for the debt, though it does not in terms release the debtor, yet is held, upon the principle of av-eiding circuity of action, to be equivalent in effect to a release, and may be so pleaded in an action against the debtor (;»). But it is not available as a release in an action against the debtor sued jointly with another for a joint debt, and the remedy of the covenantee is then only for the breach of (g) Harrhy y. Wall, 1 B. & Aid. 103 ; Fazalierhj v. Knight, supra ; and see ante, p. 117. (A) Corner v. Sweet, L. E. 1 C. P. 456 ; 35 L. J. C. P. 151. (i) Gibbons v. Vouillon, S C. B. 483. (k) Ellis V. M'llenrij, L. "R. 6 C. P. 22S ; 40 L. J. C. P. 109. [l) Xi'wington t. Lcnj, L. E. 6 C. P. 180 ; 40 L. J. C. P. 29 ; Sail v. Levy, L. R. 10 0. P. 154 ; 44 L. J. 0. P. 89 ; see Baker v. Painter, L. K. 2 C. P. 492 ; and see ante, p. 759. {m) Per cur. Ford v. Beeeh, 11 Q. B. S71 ; see Keyes v. Elkins, 5 B. & S. 240; 34 L. J. Q. B. 25. llELEAf-E. 799 covenant in suing him ; nor is it available in an action against Ch. vill. the other joint debtor sued separately {n) ; nor in an action brought by the covenantor jointly with another in respect of a joint debt (o). And a covenant not to sue made with a debtor jointly with other covenantees, and not severally, is not available to the debtor as a release of his several lia- bility (p). A covenant by the obligee of a bond not to sue the obligor and to indemnify him in case of his assigning it, was construed as excepting an assignment, and therefore not pleadable as a release in an action brought for the benefit of an assignee (q). — A covenant not to sue for a limited time Covenant operates as a covenant only, and cannot be pleaded as equi- for a valent to a release (r) . And a simple contract not to sue for t^S'e.^ a limited time operates by way of contract only and cannot be pleaded in bar of an action (s) . But a covenant not to sue for a limited time, with a condition that if an action be brought within the time the right of action shall be barred, operates as a release by force of the condition, and may be pleaded in bar to an action brought within the time (t) . A covenant or agreement not to sue a debtor for a limited time discharges a surety for the debt (u). The release of one of co-debtors jointly, or jointly and Release of severally liable for the same debt, releases all. " If two be jointly and severally bounden in an obligation, if the obligee release to one of them, both are discharged " (x). The release of one of debtors severally and not jointly liable for the same debt, not being in the relation of principal and surety, does not discharge the others (y). — At common law the effect of («) Dean v. NewJiall, 8 T. K. 168 ; {t) Per cur. Belshaw v. Bush, 11 Sutton Y. Eyre, 6 Taunt. 289 ; see C. B. 204 ; 22 Ij. J. 0. 28 ; WalUr Benderson t. Stobart, 5 Ex. 99. v. Nevill, 3 H. & C. 403 ; 34 L. J. (o) Walmesley \. Cooper, 11 A. & Ex. 73. E. 216 ; see post, p. 802. (m) Moss v. Sail, 5 Ex. 46 ; Bolton (p) Webb T. Spicer, 13 Q. B. 886 ; v. Buekenham, (1891) 1 Q. B. 278 ; see ante, p. 377. ante, p. 693. (?) Morley \. Frear, 6 Bing. 547. [x) Co. Lit. 232 a ; Oheetham v. (r) Per cur. Ayloffe v. Scrimpshire, Ward, 1 B. & P. 630 ; per cur. Nichol~ 2 Salk. 573 ; Carth. 63 ; Thimbleby son v. Revill, 4 A. & E. 683. v. Barron, 3 M. & W. 210. (y) Collins y. Prosser, 1 B. & C. (s) FordY. Beech, 11 Q. B. 852. 682; see ante, p. 700. 800 DISCHAllGE OF CiONTRAGTS. PaetIV. an absolute release under seal of one of co-debtors in dis- Eeseryeof charging the others could not be met by a merely parol against agreement to the contrary (a) . But a release of one of co- co-debtor. (jgi^tQpg jjja^y |3g qualified by an express proviso or reservation of the remedies of the creditor against the other co-debtors ; and the release in such form operates only between the parties to it, and with the same effect as a covenant not to sue (a). " The reason why a release to one debtor releases all jointly is, because, unless it was held to do so, the co-debtor after paying the debt, might sue him who was released for contri- bution, and so in effect he would not be released ; but that reason does not apply where the debtor released agrees to such a qualification of the release as wiU leave him liable to any rights of the co-debtor " (b). So a creditor of a firm of partners may release one or more of the partners, reserving the right to sue them all jointly, or the others separately (c). And creditors may release the debtor under a composition without prejudice to their remedies against co-debtors or sureties (d). A release or composition under the bankruptcy law operates without affecting the remedies of creditors against other parties because it takes effect by force of law (e) . Eeserve of Where two persons have contracted liability for the same against debt in the relation of principal and surety, to the knowledge surety. ^f ^j^g Creditor, a release of the principal, or a covenant not to sue the principal for a limited or unlimited time, discharges the surety by reason of the relation (/) . The release of a surety does not discharge the principal debtor {g) ; but the release of a surety discharges a joint co-surety (/*). A release or covenant not to sue may be made with an express reserva- (z) See ante, p. 794. L. J. Q. B. 25; Bateson v. Gosling, (a) See ante, p. 798; Tricev.Barkei', supra. 4 E. & B. 760 ; 24 L. J. Q. B. 130 ; (e) Cragoe v. Jones, L. E. 8 Ex. 81 ; Willis T. Be Castro, 4 0. B. N. S. 42 L. J. Ex. 68 ; post, p. 893. 216 ; 27 L. J. C. P. 246 ; Bateson v. { /) Moss v. Hall, S Ex. 46 ; Cragoe Gosling, L. E. 7 C. P. 9 ; 41 L. J. C. v. Jones, L. E. 8 Ex. 81 ; 42 L. J. P. 53. Ex. 68 ; Wehb v. Hewitt, 3 K. & J. (h) Per cur. Xorth v. Wakefield, 13 438. See ante, p. 694. Q. B. 641. {g) Exp. Good, L. E. 5 C. D. 57 ; te) Solly V. Forbes, 2 B. & B. 38. 46 L. J. B. 65. Per cur. Hidmn v. Barcliig, 3 (A) Ward v. Xew Zealand Bk., L. H.' & 0. 361 ; 34 L. J. Ex. 217 ; E. 8 Ap. Ca. 755 ; see Thompson v. J^eijes V. Elkins, 6 B. & S. 240 ; 34 Lack, 3 C. B. 540. RELEASE. 801 tion of remedies against the surety ; in which case the prin- Ch. viii. cipal debtor is discharged as against the creditor, but not as against the surety whose liability remains unaffected. " The reserve of remedies has that effect upon this principle — first, that it rebuts the implication that the surety was meant to be discharged, which is one of the reasons why the surety is ordinarily exonerated by such a transaction ; and, secondly, that it prevents the rights of the surety against the debtor being impaired, the injury to such rights being the other reason ; for the debtor cannot complain if the instant after- wards the surety enforces those rights against him, and his consent that the creditor shall have recourse against the surety is, impliedly, a consent that the surety shall have recourse against him"(«). Accordingly, the holder of a bill of ex- change may release the acceptor, at the same time expressly reserving his remedies against other parties secondarily liable ; who retain their right of recourse against the acceptor {k). So in the winding up of a company, the liquidator may release or compromise the claim against a present shareholder, with an express reservation of the claim against past shareholders as contributories ; who by statute are in the position of sure- ties, with recourse against the present holders of their shares (l) . Where the surety had guaranteed the interest of the debt, but not the debt itself, a release of the debtor with a reserve of rights against other persons was held not to release the surety, though the surety could only stop the interest by paying the debt, in which case he might charge the debtor vsdth the amount («;). The original contract may expressly reserve to the creditor the power of releasing a debtor without dis- charging the co-debtors or sureties ; and a general release is then qualified by the terms of the contract {n). (j) Ter cur. Kearsley v. Cok, 16 M. 40 L. J. C. 1. & W. 135 ; Owen v. Soman, i H. L. (?n) Green v. Wynn, L. E.. 4 Cli. C. 997 ; Bateson v. Gosling, supra ; 204 ; 38 L. J. 0. 76. Oragoe v. Jones, supra. («) Cowper v. Smith, 4 M. & W. (k) jVuir Y. Crawford, L. R. 2 Sc. 519 ; Union Bank of Manchester v. Ap. 456. Beech, 3 H. & C. 672 ; 34 L. J. Ex. (0 NevilVs case, L. R. 6 Ch. 43 ; 133. L. 3 F 802 DISCHAHGE OF CONTRACTS. Pabt IV. Release "by one of co- creditors. Covenant not to sue. Release obtained by collu- sion and fraud. Release obtained by fraud. A release by one of co-creditors jointly entitled to the debt discbarges the debtor against all (o) ; but wbere a person, being a creditor in bis own right and also as partner in a firm, executed in his own name a release to the debtor, he was taken to have executed for his own debt only and not for the partnership debt {p). A covenant by one of joint creditors not to sue the debtor, though it may operate as equivalent to a release as against that creditor upon the principle of avoiding circuity of action, has no effect in releasing the debtor from the joint claim ; and aU the creditors may join in suing, though the one would thereby commit a breach of his covenant (g) . — In the case of a co- creditor releasing the debt in collusion with the debtor and in fraud of the other creditors, the Court of Chancery upon equitable principles will set aside the release ; as in the case of a partner coUusively releasing a partnership debt (r). The courts of common law also exercised a summary jurisdiction to set aside a plea of release where a court of equity would set aside the release unconditionally and absolutely ; as in the case of fraud and collusion with the debtor (s) ; or in the case of the releasor being a bare trustee, or a nominal plaintiff, or having assigned the debt without retaining any beneficial interest {t). But the courts of common law had no jurisdic- tion to set aside the release itself, or to modify it upon equitable terms (m) . Now under the Judicature Act aU the divisions of the Court have the power to give full equitable relief. — In the case of a releasing creditor having been in- duced to give the release by the fraud of the debtor, he may (o) Wilkinson v. Zindo, 7 M. & W. 81 ; Wetherell v. Zangston, 1 Ex. 634. See ante, pp. 760, 779. {p) Bain T. Cooper, 9 M. & W. 701 ; ante, p. 797. (q) See ante, p. 799 ; Walmsley v. Cooper, 11 A. & E. 216. (»■) Piercy v. Fynney, L. E. 12 Eq. 69 ; 40 L. J. C. 404. (s) BarJcer v. Richardson, 1 Y. & J. 362 ; Innell v. Newman, 4 B. & Aid. 419 ; PlnUips t. Clagett, 11 M. & W. 84 ; Coohe v. Stephen, 5 Eing. N. C. 688. (t) Payne t. Eodgers, Dougl. 407; Zegh T. Zegh, 1 B. & P. 447 ; Znnell V. Newman, 4 B. & Aid. 419; De Pothonier v. Mattes, E. B. & E. 461 ; 27 L. J. Q. B. 260. (») Parke, B., Phillips v. Clagett, 11 M. & W. 93 ; Mawstone y. Gandell, 15 M. & W. 304. RELEASE. 803 avoid it at Ms election without the aid of the Court; and he Ch. Vlii. may meet a plea of release in an action by replying that the release was obtained by fraud (x). {x) Wild T. Williams, 6 M. & W. Vernon, 7 0. B. N. S. 231 ; 29 L. J. 490; Parke, B., Fhillips v. Clagett, C. P. 135; JJrquhart v. Maepherson, 11 M. & "W. 93 ; Bee Robinson v. Lord L. R. 3 Ap. Ca. 831. 3f2 804 DISCHARGE OF CONTEACTS. Chapter IX. MEEGBE AND ESTOPPEL. PAOE Merger — ^conditions of merger — intention of merger — effect of implied covenant 804 Merger by judgment recovered — judgment on collateral security — reversal of judgment 807 Judgment against joint debtor — joint debtor beyond seas — effect in equity of merger of joint debt 808 Estoppel by judgment against plaintiff — judgment for part of claim 810 Estoppel by res judicata — judgment by default — admissions in pleading — effect of verdict — estoppel must be pleaded. 811 Judgment of inferior court — foreign judgment — pendency of another action 813 Pabt IV. "It is a general rule of law, that a party, by taking or Merger. 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 or cause of action." By taking a bond or covenant under seal for a simple contract debt, the remedy upon the simple contract is extinguished; by recovering judgment upon a simple con- tract, bond, or specialty, the remedy upon the cause of action is merged in the judgment, which, being matter of record, is a security of higher efficacy («). " 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" (S). But no merger takes place where the securities axe of equal (a) Truro, L. 0., Owen v. Soman, (J) Maule, J., Frice v. MoiiUon, 10 3 Mao. & G. 407 ; Eiggen's case, 6 C. B. 674. Co. 44 b. MERGER. 805 degree : as a bond taken for a bond or for a covenant (c) ; or Chap, ix. a bond or covenant taken for payment of rent, which is also a specialty debt [d) ; or a judgment recovered upon a con- tract of record (e). It is a necessary condition of merger that the two securi- Conditions ties are co-extensive; that is to say, the superior security ger:— must be for the same identical debt and between the same parties as the inferior security. A bond for a limited sum as to the cannot merge a simple contract debt of indefinite amount ; as a bond given to secure the payment of money then due and thereafter to become due under a simple contract for work (/). A bond taken by a banker from a customer, conditioned for the payment of all sums then advanced or thereafter to be advanced on his account, does not merge the simple contract debt to the banker for money lent (g). But merger may be effected of part of a claim, if the superior security be specifically appropriated to that part (h) . — The new security As to the must also be between the same parties ; a superior security ^ given by a surety for the debt does not merge the debt as against the principal (/). And a joint bond of a principal and surety does not merge the debt of the principal {k) . A mortgage with a covenant to pay the debt, given by one of the makers of a joint and several promissory note, was held not to merge the note as against the other maker (/). And a superior security given to a third party as trustee for the creditor does not merge the original debt [ni). Upon this principle a balance order obtained by a liquidator under the Companies Acts for the payment of calls by a shareholder as a contributory does not merge the debt of the shareholder for the calls due to the company (w). (c) Branthwait v. Cornwallis, Cro. (i) White v. Cuyhr, 6 T. R. 176. Car. 85 ; seeHiggen's case, 6 Co. 4.5 b. [k) Solmes v. Hell, 3 M. & G-. 213 (d) Cresswell, J., Pricey. Moulton, [I) Ansell t. Baker, 15 Q. B. 20 10 C. B. 574 ; Eidd v. Bomie, L. R. see Sharpe v. Gihbs, 16 0. B. N. S! 12 Eq. 89 ; 40 L. J. C. 531. 527 ; BoaUr v. Mayor, 19 C. B, N. S, (e) Breston v. Bertmi, Cro. Eliz. 76 ; 34 L. J. C. P. 230. 817. (m) Bell y. Banks, 3 M. & G. 258 , (/) Norfolk By. v. McNamara, 3 see Mowatt v. Londeshorough, 4 E. & Ex. 628. B. 1. {g) Holmes v. Bell, 3 M. & Gr. 213. (m) Westmoreland Slate Co. Y.Feildm, (A) Price y. Moulton, 10 C. B. 561. (1891) 3 Ch. 15 ; 60 L. J. C. 680. 806 DISCHAKGE OF CONTRACTS. Intention of merger. Effect of implied covenant. Paet IV. Merger is efEected by mere operation of law, independently of any intention of the parties that the inferior remedy should be discharged (o) ; and it seems that it is not competent for the parties to prevent the operation of the rule of law, by an express agreement to the contrary {p). But a new security, though not within the conditions required to effect a merger by operation of law, may be given and accepted in discharge of the prior debt by agreement of the parties ; and it then operates by way of accord and satisfaction {q). — A deed acknow- ledging a simple contract debt may be construed as implying a covenant to pay the debt, with the effect of merging the simple contract. " In the simple case of a debtor acknow- ledging a debt by a deed under seal, without any other object declared by the deed, it must be assumed that, although no words of covenant are used, the debtor meant to be bound, or else why should he go through the form of executing a deed" (r). But if the acknowledgment of debt is made for a particular purpose declared in the deed, it is copstrued presumptively as restricted to the declared purpose, and there is no merger (s) . Where a deed acknowledges a simple contract debt for the declared purpose of assigning certain security for it, without any express terms of cove- nant, no intention to give a covenant can be implied, and the debtor remains chargeable with the original debt {t). But if the deed reciting a simple contract debt agrees to execute a mortgage to secure it with all usual powers and covenants incidental thereto, it converts the debt into a specialty debt, because a covenant for payment is a usual covenant [u). Where money is lent upon a deed of mort- gage containing a covenant to pay it out of the mortgaged (o) Price v. Moulton, 10 C. B. 561 ; Norfolk Ey. t. McNamara, 3 Ex. 628. (p) Truro, L. C, Owen v. Soman, 3 Mao. & G. 408 ; see Commiss. of Stamps V. Sope, (1891) A. C. 476 ; 60 L. J. P. C. 44. (j) See ante, p. 758. (r) Oaims, L. C, Isaacson v. Mar- wood, L. R. 3 Ch. 225 ; 37 L. J. C. 213 ; ante, p. 197. (s) Twopenny v. Toutig, 3 B. & C. 208; Yates \. Aston, 4 Q. B. 182; Courtney v. Taylor, 6 M. & G-. 851. [t) Marryat v. Marryat, 28 Beav. 224 ; 29 L. J. C. 665 ; Isaacson v. Sarwood, L. R. 3 Ch. 225 ; 37 L. J. C. 209 ; Jackson v. K. B. My., L. R. 7 C. D. 573 ; 47 L. J. C. 363. (m) Saunders v. MUsorne, L. R. 2 Eq. 673 ; see Kidd v. Boone, L. R. 12 Eq. 89 ; 40 L. J. C. 631. MERGER. 807 property, the borrower cannot be charged with a simple debt Chap. IX. for money lent, or with any other liability than the cove- nant («). A judgment recoyered by the plaintiff in an action for a Merger by debt or breach of contract merges the original cause of action, Jec(^red. and is a bar to another action for the same claim {y). The remedy of the judgment creditor is by taking out execution upon the judgment ; or by bringiag an action for the judg- ment debt ; but in the latter ease he is not entitled to any costs of suit without a special order of the Court (s). Judgment recovered for a less sum than that claimed merges the ^^fhole claim, because it is conclusive as to the amoimt recoverable ; and no further action can be brought upon the same claim in respect of the residue (a). A judgment recovered in an action for iaterest only is no bar to a sub- sequent action claiming the principal debt (6). And a judg- ment recovered in an action for the principal debt only, is no bar to a subsequent action for iaterest accrued .previous to the judgment (c). As the judgment merges the debt no interest can afterwards accrue except upon the judgment [d). But a judgment, though it merges the debt, does not affect a charge or mortgage of property for the debt and interest (e). — Where a bill of exchange was given in payment of a debt Judgment due under a covenant, and judgment recovered upon the bill, terai se- it was held that the judgment alone, without payment or °"^"y- satisfaction, though it merged the remedy upon the bill, afforded no answer to an action upon the covenant (/). But {x) Mathew v. Blachnore, 1 H. & post, pp. 811, 904. N. 762 ; 26 L. J. Ex. 150. (b) Morgan v. Rowlands, L. E. 7 (2/) Siggen's ease, 6 Co. Uh; per Q. B. 493 ; 41 L. J. Q. B. 187. eur. Xing V. Soare, IZM. So'W. 504; (c) Florence v. Jennings, 2 0. B. anU, p. 140. See Brinsmead v. Sar- N. S. 454 ; 26 L. J. C. P. 274. rison, L. E. 6 C. P. 584 ; 40 L. J. C. {d) Re European Central Rij., L. E. P. 281 ; Exp. Drake, L. E. 5 C. D. 4 C. D. 33 ; 46 L. J. C. 67 ; Exp. 866. Eewings, L. E. 25 C. D. 338 ; 53 L. (z) See ante, p. 134. J. C. 543. (a) Stewart v. Todd, 9 Q. B. 767 ; (e) Fopple v. Syhester, L. E. 22 C. Bee Siddall v. Rawcliffe, 1 C. & M. D. 98 ; 52 L. J. C. 54. 487 ; Bagot v. Williams, 3 B. & 0. (/) Brake v. Mitchell, 3 East, 251 ; 235 ; Barber v. Lami, 8 C. B. N. S. see ante, p. 768. 95 ; 29 L. J. C. P. 234 ; and see 808 DISCHARGE OF CONTKACTS. PabtIV. judgment recovered upon a bill of exchange given for the price of goods sold vi'as held to merge the debt for the goods, as well 8S the remedy on the bill, without payment or satis- Warrantof faction of the judgment (•). But in the case of partners the assets are several in equity, and a creditor has a several claim against the assets of a deceased partner ; and in such circumstances a judgment against the surviving partner does not bar the claim against the share of the deceased ; nor does judgment against the latter bar an action against the survivor (i') . And a judgment against partners jointly does not merge the debt so far as to exclude the right of the creditor to prove in bankruptcy against their separate estates in respect of separate liabilities, if any, for the original debt {i). — A judgment recovered against one of joint debtors, though it merges the debt and prevents re- covery against the others, does not bar his right of contri- bution from them (m). A judgment against the plaintifi in an action is a con- (o) See post, p. 840. 4 De a. & J. 24 ; Se Sodgson, L. R. \p) Kendall t. Eamilton, L. E. 4 31 C. D. 184 ; 55 L. J. C. 241 ; see Ap. Ca. 504 ; 48 L. J. C. P. 705. Blyth v. Fladgate, (1891) 1 Oh. 337 ; (q) Soarey. NibUtt, (1891) 1 Q. B. 60 L. J. C. 66. 781 ; 60 L. J. Q. B. 565. [t) He Samson, L. R. 13 Q. B. D. {r) Hammond v. Sehofield, (1891) 1 50. Q. B. 453 ; 60 L. J. Q. B. 539. {u) See Hammond t. Sehofield, («) Liverpool Borough Bk. v. Walker, 810 DISCHARGE OF CONTRACTS. Estoppel ty judg- ment against plaintiff. Part IV. elusive estoppel as to the matter adjudicated. " When one is barred in any action, real or personal, by judgment on demurrer, confession, verdict, &c., he is barred as to that, or the like action of the like nature for the same thing, for ever; for expedit reipuhUcce ut sit finis Ktium" [x). But the judg- ment, in order to operate in estoppel, must have proceeded upon grounds which are decisive of the cause of action ; a plaintiff is not estopped by a judgment against him upon the ground of having mistaken the form of action («/) ; or of having sued as administrator instead of as executor (z) ; or of having brought the action prematurely, as an action for the price of goods before the credit had expired («), or an action to recover back the deposit under a contract of sale before the contract was rescinded {h). If the plaintiff discontinued the former action, or was nonsuited, or if it was dismissed for want of prosecution, there is no bar to a second action (c) ; but a second action may be stayed by the Court until pay- ment of the costs of the former action {d). The plaintiff may also bring a second action upon new matter arising which defeats the defence of the former action ; as in the case of a composition deed being defeated by non-payment of the composition {e). But he cannot bring a new action upon the discovery of new evidence in support of his case, unless it amounts to a new cause of action which he could not have known before (/). And a plaintiff cannot bring an action to impeach a judgment upon grounds of fraud which he might have pleaded in the former action [g). Where the defendant relied for -defence upon a judgment against the (x) Ferrer's case, 6 Co. 7 a ; Hig- gen'^s case, 6 Co. 46 a ; Overton v. Harvey, 9 C. B. 324 ; lord Tredegar T. Windus, L. R. 19 Eq. 607 ; 44 L. J. C. 268. See ante, p. 141. [y) Ferrer's case, 6 Co. 7 b ; jSad- ley v. Green, 2 0. & J. 374. (z) Robinson's case, 5 Co. 32 b. {a) Fer cur. Palmer v. Temple, 9 A. & E. 621. (b) Palmer v. 'Temple, supra. \c) Re Orvcll Call. Co., L. E. 12 C. D. 681 ; 48 L. J. C. 666 ; Magnus V. Bk. of Scotland, 67 L. J. C. 902. See Order XXVI. r. 1. (d) Order XXVI. r. 4 ; see ITcCahe T. BJ(. of Ireland, L. E. 14 Ap. Ca. 416 ; Martin v. Beauchamp, L. E. 25 CD. 12; 53 L.J. C. 1150. («) Sail T. Levy, L. E. 10 C. P. 154 ; 44 L. J. C. P. 89 ; see ante, p. 798. (/) Phosphate Sewage Co. v. Hart- mont, L. E. 4 Ap. Ca. 801. (g) Flower v. Lloyd, L. E. 10 C. D. 327 ; see Tamer v. Tepper, 46 L. J. C. 703. ESTOPPEL. 811 plaintiff in a former action against a joint debtor for the Chap. ix. same debt, it was held that he must show that the former judgment was obtained upon grounds open to all the joint debtors, and not upon grounds peculiar to the one previously sued (A). Upon the same principle a judgment for the plaintiff for a Judgment J-- i 1 • i 1 .t iU i. for part of certain amount operates m estoppel as to the amount re- claim, coverable, and precludes his suing again for a greater amount or further damages under the same claim («'). But a judg- ment may be set aside by the Court upon the ground of mis- take in the amount claimed, and upon the ground of fraud upon the plaintiii (k). Where a plaintiff sued for two distinct debts, but proceeded for and proved one only, it was held that the judgment did not include the other debt and was no bar to a second action {I). — So if the plaintiif in a County Court abandons so much of his claim as is in excess of the jurisdiction, he is precluded by the judgment of the Court from bringing another action for the excess (m). But the defendant in a County Court action may make a counterclaim in excess of the jurisdiction of the Court, which is available in that Court only to the amount of the plaintiff's claim ; conse- quently he may bring an action in the superior Court for the residue, in which action the judgment of the County Court is conclusive as to the cause of action, and the only question is the amount of the debt or damages (n) . The principle of estoppel extends to aU matters adjudicated Estoppel upon by a court of competent jurisdiction, as against the judicata. parties before the Court, and all persons claiming in the same right (o) ; but not against parties suing or being sued in (h) Phillips T. Ward, 2 H. & C. Q. B. D. 141 ; 63 L. J. Q. B. 476. 717 ; 33 L. J. Ex. 7. (m) 51 & 52 Vict. o. 43, s. 81 ; see li) See ante, p. 807 ; Serrao v. Noel, Vines v. Arnold, 8 C. B. 632 ; Clarice L. R. 15 Q. B. D. 649. v. Yorke, 62 L. J. C. 32. (k) Cannan v. Reynolds, 6 E. & B. (n) Webster v. Armstrong, 54 L. J. 301 ; 26 L. J. Q. B. 62 ; see Girdle- Q. B. 237 ; JDavis v. Flagstaff Mining stone v. Brighton Aquarium, L. R. 4 Co., L. R. 3 C. P. D. 228; 47 L. J. Ex. D. 107 ; 48 L. J. Ex. 373. C. P. 603. (l) Seddon v. Tutop, 6 T. R. 607 ; (o) See ante, pp. 130, 140 ; Sgmons v. Badleij v. Green, 2 C. & J. 374 ; see liees, L. E. 1 Ex. D. 416 ; Re May Brmsden v. Humphrey, L. R. 14 L. R. 28 C. D. 516; 84 L. J. C. 338 812 DISCHARGE OF CONTRACTS. PabtIV. different rights (^j). And where the judgment decides a general right affecting a class of persons, the estoppel includes all persons of that class who were properly represented in the Judgment suit, though not actual parties (g). — "The judgment of a ^ '^ ^ ' Court is not only conclusive with reference to the actual matter decided, but it is also conclusive with reference to the grounds of the decision, provided that from the judgment itself the actual grounds of the decision can he clearly dis- covered " (r). Therefore a judgment by default against a party estops him in a second action as to all traversable alle- gations in the former action which are necessary to support the judgment ; but not as to defences, consistent with such allegations, which he merely omitted to plead («). So a plaintiff who confesses a defence pleaded is estopped in a subsequent action from setting up any matter inconsistent with the confession (t). And a plea of set-off found against the defendant estops him from suing for the same claim in a subsequent action, though he offered no evidence upon the Admissions set-off {i(). — The allegations and admissions in the pleadings S^ ^ of an action, which are made and intended for the purpose of that action only, do not operate in estoppel ia other proceed- ings ; as the admissions made by pleading in confession and Effect of avoidance, or by pleading a demurrer («). — "The facts actually decided by an issue in any suit cannot be again litigated by the same parties, and are evidence between them" («/). Hence a verdict operates in estoppel as to the Lockyer v. Ferryman, L. R. 2 Ap. L. B. 9 Ch. 25 ; 43 L. J. 0. 11 ; see Ca. 530 ; Selborne, L. C, The Queen Houstown v. Sligo, L. R. 29 C. D. v. Butchings, L. R. 6 Q. B. D. 304 ; 448 ; Concha v. Concha, L. R. 11 Ap. 50 L. J. M. 38 ; Re £yton, L. R. 45 Ca. 541. C. D. 458 ; 59 L. J. C. 733. (s) Eowlett v. Tarte, 10 C. B. N. S. {p) Leggott v. Great Northern Sy., 813 ; 31 L. J. C. P. 146. L. R. 1 Q. B. D. 599: 45 L. J. {t) Newington v. Levy, L. R. 6 Q. B. 557 ; Ex p. Banner, L. R. 17 0. P. 180 ; 40 L. J. C. P. 29 ; see C. D. 480; 51 L. J. C. 300; Ex p. ante, p. 810. Young, L. R. 17 C. D. 668 ; 50 [u) Eastmure v. Zawes, 5 Bing. L. J. C. 824. N. C. 444 ; see Stanton v. Styles, 6 (g) London Commiss. of Seiccrs v. Ex. 578. Gellatly, L. R. 3 C. D. 610; 45 L.J. (x) "Willes, J., Sowlett v. Tarte, C. 788; see The Queen v. llidchings, supra; see Carter v. James, 13 M & L. R. 6 Q. B. D. 300 ; 50 L. J. M. W. 137 ; Boileau v. Mutlin, 2 Ex. 665. 35. (y) Fer cur. Boileau t. JRiitliii, 2 (r) Mellish, L. J., Alison's case, Ex. 681 ; see Keedham v. Bremner, ESTOPPEL. 813 facts in issue whicli are material to support it, so long as it Chap, ix. stands ; but the Court may grant a new trial upon the grounds of there being no evidence to support it ; or of it being against the weight of evidence, or of misdirection by the Court (z). The Court can disregard the verdict only in the case of there being no evidence, so that a new trial is useless; or where the matter of the verdict is immaterial (a). — An estoppel must be Estoppel specially pleaded where there is an opportunity, because it pleaded, concludes the fact without inquiry ; but if an issue is taken instead of pleading the estoppel, the inquiry is open and it is matter of evidence only and not conclusive ; unless there was no opportunity of pleading the estoppel, in which case it is conclusive in evidence (b). The judgment of an inferior Court, not being a Court of Effect of record, does not merge the debt in a higher security, but it of inferior operates by way of estoppel ; as the judgment of the ancient merge™ County Court at common law (c). The County Court as con- stituted by statute is expressly made a Court of record {d) ; and the judgment of the statutory County Court is a bar to an action for the same cause ia any other Court (e). By the County Courts Act, 1888, (repealing and consolidating the pre- vious County Courts Acts,) 51 &. 62 Vict. c. 43, it is enacted, s. 93, " every judgment and order of this Court shall be final and conclusive between the parties " ; but it is provided that the Court shall have power to nonsuit the plaintiff ; also power to order a new trial. An action will not lie upon a judgment of a County Court ; nor in a County Court upon a judgment of the High Court (/). — The judgments and decisions of Effect in inferior Courts of competent jurisdiction are conclusive be- tween the parties, and operate in estoppel upon the principles L. E. 1 C. P. 683 ; 35 L. J. C. P. 4th ed. t. 2, p. 175. 313. (c) Higgen' s case, 6 Co. 45 a. {«) Fer eur..Se May, L. K. 28 C. D. (d) 9 & 10 Vict. c. 95, s. 3 ; County 519 ; 54 L. J. C. 338. Courts Act, 1888, s. 5. SeeParke, B., (a) Hx p. Morgan, L. K. 8 C. D. Sreese v. Owens, 6 Ex. 419. 82 ; 45 L. J. B. 36. (e) Austin v. Mills, 9 Ex. 288 ; 23 (b) Tocght v. Winch, 2 B. & Aid. L. J. Ex. 40. 662 ; Kingston's case, 2 Smith, L. C. {/) See ante, p. 105 ; and see the 8th ed. 801 ; BuUen & L. Preo. PI. Comity Courts Act, 1888, ss. 63, 116. 814 DISCHARGE OF CONTRACTS. Foreign judgment. Paet IV. above stated. The decision of a County Court on a claim for rent, that the tenancy was yearly and not weekly, was held to be conclusive in an action for trespass and eviction in the superior Court (g) . And the verdict and j udgment of a County Court upon a counterclaim was held to be conclusive as to the claim ; though not as to the amount due in excess of the plaintiff's claim (h). The decision of justices exercising sum- mary jurisdiction in Petty Sessions upon a matter within their jurisdiction is an estoppel between the parties ; as a decision against the claim of a servant for wages under the Masters and Servants Act, which was held to bar the same claim in any other Court («') . A judgment recovered in a foreign Court does not merge the cause of action in the Courts of this country ; and there- fore, unless followed by satisfaction, it affords no answer to an action upon the original claim (J). But a final judgment of a foreign Court is conclusive between the parties, and operates in estoppel as to the matters adjudicated. It there- fore raises an implied debt between the parties which forms a distinct cause of action ; and the debtor cannot plead any matter of defence which was available to him in the foreign Court (/c). A foreign judgment is also conclusive as to the amount recoverable, which may be discharged by payment or satisfaction of the judgment (l). Upon the same principle a final and conclusive judgment upon the merits against the plaintiff in a suit brought in a foreign Court, may be set up in estoppel against an action brought by him for the same cause in the Courts of this country (m). In the superior Courts of common law the pendency of another action for the same cause was ground for a plea in Action pending for aame cauae. {ff) Flitters v. Allfrey, L. R. 10 C. P. 29 ; 44 L. J. C. P. 73. (A) Webster v. Armstrong, 64 L. J. Q. B. 236; see ante, p. 811. (j) Millett V. Coleman, 44 L. J. Q. B. 194; see Dorer v. Child, L. E. 1 Ex. D. 172; 46 L. J. Ex. 462; The Que&ti v. Hutchings, L. R. 6 Q. B. D. 300; 50 L. J. M. 36. (j) Smith V. Nicolls, 6 Bing. N. C. 208 ; Brink of Australasia v. Harding, 9 C. B. 661 ; Bank of Amtralasia t. Mas, 16 Q. B. 717. {k) See ante, pp. 106, 108. (l) Barber v. Lamb, 8 C. B. N. S. 96 ; 29 L. J. 0. P. 234. (m) Plummer v. Woodburne, 4 B. & C. 626 ; General Steam Xav. Co. v. Gotiillou, 11 M. & W. 877 ; Fraycs r. Worms, 10 C. B. N. S. 149 ; Ficardo ■V. Garcias, 12 CI. & F. 368. ESTOPPEL. 815 abatement, upon the principle that a person ought not to be Chap, ix. twice vexed for the same cause ; but it afforded no ground for a plea in bar (»). Proceedings pending in an inferior Court for the same cause could not be pleaded in abatement of an action in the superior Courts (o) . Under the Judicature Acts, Order XXI., r. 20, pleading in abatement is abolished. But the pendency of another action for the same cause, if vexa- tious to the defendant, is ground for making an application to the Court to stay proceedings or to impose terms upon the plaintiff [p). And under the Judicature Acts the Court may transfer actions from one division of the Court to another, and may consolidate actions [q). The Court exercises similar jurisdiction against the party to an action in the case of his carrying on proceedings in a foreign Court for the same cause (r) . If two actions are brought by the same plaintiff in English Courts for the same cause, it is prima facie vexa- tious, and the plaintiff will be put to his election ; but in the case of a foreign action, by reason of the different procedure and remedies, there is no such presumption, and it lies upon the defendant to show special grounds for the interference of the Court (s). (m) Sparnfs case, 6 Co. 61 ; see L. R. 22 C. D. 397 ; 52 L. J. C. D. BuUen & L. Preo. PI. 473, 3rd ed. 325 ; see JVortmv. Florence Zand Co., (o) Laughton v. Taylor, 6 M. & "W. L. E. 7 C. D. 332. 695 ; Bissill v. Williamson, 7 H. & N. (s) Cox v. Mitchell, 7 C. B. N. S. 391 ; 31 L. J. Ex. 131. 65 ; 29 L. J. C. P. 33 ; McUenry v. [p) Frith V. Gicppy, L. R. 2 C P. Zewis, sttpra ; see Peruvian Guano Co, 32 ; 36 L. J. C. P. 45. v. BockwoUlt, L. R. 23 C. D. 225 ; [q) Judicature Act, 1873, 36 & 37 52 L. J. 0. 714 ; Miitrie v. Binnie, Vict. 0. 66, ». 36 ; Order XLIX. L. R. 35 0. T>. 614 ; The Christians- (r) Booth V. Leyeester, 1 Keen, 579 ; borg, L. R. 10 Ad. 141 ; 54 L. J. Ad. 3 M. & Or. 459 ; McEenry v. Lewis, 84. 816 DISCHARGE OF CONTKACTS. Chapter X. AEBITEATION AND AWAED. PAOE Arbitration— reference by consent— by order of Court .... 816 Award oonolusive upon the parties — effect of award in answer to claim 817 Effect of agreement to refer — arbitration made a condition precedent to claim 819 Remedies upon agreement to refer — action — staying legal proceedings — specific performance — appointment of arbi- trator 821 Remedies upon award — action and specific performance — judgment and execution 825 Revocation of reference 825 Paet IV. A RIGHT of action may be referred to arbitration instead of the regular course of procedure : by agreement of the parties; or in some cases by an order of tbe Court or a Judge. Arbi- tration is now regulated by the Arbitration Act, 1889, 52 & 53 Yict. c. 49, which repeals and consolidates the pre- vious enactments relating to arbitration. — As to reference by consent out of Court it is enacted, s. 1, "A submission (which is defined by s. 27 to mean ' a written agreement to submit present or future diilerences to arbitration, whether an arbi- trator is named therein or not'), unless a contrary intention is expressed therein, shall be irrevocable, except by leave of the Court or a judge, and shall have the same effect in all respects as if it had been made by an order of Court." The written agreement to submit to arbitration is not required by the Act to be signed by the parties (a). — S. 2, "A submis- sion, unless a contrary intention is expressed therein, shall be deemed to include the provisions set forth in the first schedule {a) Baker v. Yorkshire Fire Ass., Icon Co. v. Siiahcs, 60 L J O B (1892) 1 Q. B. 144 ; explaining Goer- 640. • . ^. . Arbitra tion. Reference by consent AEBITEAIION AND AWARD. 817 to this Act, SO far as they are applicable to the reference Chap. s. under the submission." The provisions in the schedule regu- late the appointment of arbitrators and umpire, the time of making the award, the conduct and costs of the reference, and the finality of the award. They apply to submissions made before the Act as well as after (b). As to references under order of Court, it is enacted, s. 13 (1), Reference " The Court or a judge may refer any question arising in court, for any cause or matter (c) for inquiry or report to any official or '^^^°^- special referee." (2) " The report of an official or special referee may be adopted wholly or partially by the Court or a judge {d) ; and if so adopted may be enforced as a judgment or order to the same effect." — S. 14, "In any cause or matter. Reference (1) If all the parties interested who are not under disability consent : or, (2) If the cause or matter requires any prolonged examination of documents or any scientific or local investiga- tion which cannot in the opinion of the Court or a judge conveniently be made before a jury or conducted by the Court through its ordinary officers : or, (3) If the question in dispute consists wholly or in part of matters of account ; the Court or a judge may at any time order the whole cause or matter, or any question or issue of fact arising therein, to be tried before a special referee or arbitrator respectively agreed on by the parties, or before an official referee or officer of the Court "(f). " An award, good on the face of it, is binding and con- Award elusive upon both parties, until it is set aside " ; upon the upon the same principle that a judgment binds the parties as resjudi- P^'^'^^- cata (/). And an agreement to this effect is presumptively (b) Se Williams and stepney, {1S91) Darlington Wagon Co. v. Harding, 2 Q. B. 257 ; 60 L. J. Q. B. 636. (1891) 1 Q. B. 245 ; 60 L. J. Q. B. (c) See Weed\. Ward, L. B. 40 C. 110. D. 555 ; 58 L. J. 0. 454. (/) Fer cur. Commings v. Seard, (d) Dimlcirk Coll. Co. y. Lever, L. R. L. R. 4 Q. B. 673 ; 39 L. J. Q. B. 11. 9 0. D. 20. See ante, p. 810 ; and see Jones v. (e) See CruikshanlcT. Floating Bath Jones, 1,. H. 14 C. D. 593 ; Freeman Co., L. E. 1 0. P. D. 260 ; 45 L. J. v. Jeffries, L. E. 4 Ex. 189 ; 38 L. J. C P. 684 ; Longman v. East, L. K. 3 Ex. 116. C. P. D. 142 ; 47 L. J. 0. P. 211 ; L. 3g 818 DISCHARGE OF CONTRACTS. PaetIV. implied in all submissions, unless a contrary intention Is expressed {g). The award binds not only tbe parties to the reference, but also all persons claiming through or under them ; as a judgment creditor of one of the parties claiming satisfaction out of property which is subject of the award [h). And the award is conclusive as to all causes and matters within the scope of the reference, which a party might have brought forward, though he has omitted to do so («). But an award beyond the scope of the reference is not binding ; as where under a submission of " any dispute arising on this contract," an award was made as to the validity of the contract ; the submission being construed to refer only disputes arising out of the given contract, and not disputes about the contract itself {k) . And it is in general for the Court and not for the arbitrator to construe the reference as to what matters are referred to arbitration {I). Hence an award upon a cause of action, followed by per- formance of the award, is a complete discharge of the claim ; and an award that nothing is due may be pleaded in bar to an action upon the claim referred {in). An award upon a money claim which merely ascertains the sum due is no dis- charge without payment; and the remedy lies upon the original claim (») ; as in the case of goods sold at a price to be ascertained by the award of two persons (o). An award that a certain sum is due is conclusive as to the amount, and may be pleaded to a claim for an excess {p). And in an action for the breach of a covenant in a lease to repair the demised premises, an award upon the amount of dilapidations is conclusive evidence of the amount of damages {q). — But if the award substitutes a new debt or duty in satisfaction of Effect of award in answer to claim. {g) Arbitration Act, B. 2, ached. 1. (A) Martin v. Boulanger, L. R. 8 Ap. Ca. 296 ; 62 L. J. P. C. 31. («) Smith V. Johnson, 15 East, 213 ; Ttuiin T. Murray, 9 B. & C. 780 ; see Freeman v. Jeffries, supra ; Adams v. Mrth Scotland Ey., (1891) A. C. 31. [k) Ilitteheson v. Eaton, L. !R, 13 Q. B. D. 861 ; see Turnell v. Sander- son, 60 L. J. 0. 703. (I) li-; and see De Ricci y. Be Bieei, (1891) P. 391 ; 61 L. J. P. 17. (m) Farkes v. Smith, 15 Q. B. 297. («) Allen Y. Milner, 2 0. & J. 47. (o) Se Lee and Hemingway, 15 Q. B. 305. {p) Commings t. Heard, supra. (q) TThitehead v. Tattersall, 1 A. & E. 491. ARBITRATIOK AND AWARD. 819 the claim referred, the award alone, ■without payment or per- Chap. x. formance, may be pleaded in answer to the claim ; and the party must pursue his remedy upon the award (r). Thus an award under a submission of a claim for breach of a coTenant in a lease to repair, that the lessee should pay a certain sum, and put the premises in repair, and quit on a certain day, was held to be a suifioient answer to an action on the cove- nant, without alleging performance (s). But an award upon a claim referred, that mutual releases should be executed by the parties, was held to be no plea to an action without execution of the release (t). A mere agreement to refer to arbitration differences that Effect of may arise under a contract does not oust the jurisdiction of torefer. the Court, and is no bar to an action. " It would be against the policy of the law to give elfect to an agreement that a right of action should not be enforced through the medium of the ordinary tribunals" (m). And the pendency of an arbitration upon such difference, until a final award made, has no greater effect, and affords no answer to an action for the matter referred (a). Accordingly the usual clause in a charterparty to refer all matters in difference to arbitration is no answer to an action for a breach of the charterparty, though the defendant was and is wilUng and offered to refer the matter in dispute (y). And the usual condition in a policy of insurance, that any difference as to the loss or damage should be referred to arbitration, does not alone exclude the insured from suing on the policy (s). A covenant (r) Holt, G. J., Freeman t. Ber- («) Harris v. JReynolds, 7 Q. B. 71 ; nard, 1 L. Eaym. 248 ; Parke, B., Wood -v. Copper Miners' Co., 17 0. B. Bates V. Townley, 2 Ex. 157 ; per eur. 661 ; 25 L. J. C. P. 166 ; Cooke v. Allen Y. Milner, 2 C. & J. 47. . Cooke, L. E. 4 Eq. 77 ; 36 L. J. C. (s) Gascoyne v. Edwards, 1 Y. & J. 480. 19. (y) Thompson v. Charnock, 8 T. E. {t) Freeman v. Bernard, supra. 139. (u) Campbell, L.C., Scott v. Limr- {z) Kill v. Sollister, 1 Wils. 129 ; pool, 3 D. & J. 360 ; 28 L. J. C. 235 ; Boper v. London, 1 E. & E. 825 ; 28 Wood, V.-C.,Coofev. Coofe, L. E. 4 L. J. Q. B. 260; see Edwards v. Eq. 86 ; 36 L. J. C. 480 ; Street v. Aherayron Ins. Soc, L. E. 1 Q. B. Migby, 6 Ves. 815 ; Lee v. Page, 30 D. 563. L. J. C. 857. 3g2 820 DISCHAKGE OF CONTRACTS. Paet IV. in a lease of mines not to bring any action without first sub- mitting all matters in difference to arbitration was held to be a collateral independent covenant, which did not exclude an action, though in breach of the covenant {a). tion made ^^^ ^'^ arbitration of differences may be made a condition a condition precedent to any claim or liability arising upon the contract ; to claim. SO that no action can be brought until an arbitration has been held and an award made. " Parties may agree that no right of action should arise between them until J. S. had determined whether the contract had been fulfilled, and what damages had been sustained by its breach ; and, if they did so agree, no right of action would exist until J. S. had so decided " (h). Accordingly policies of insurance may expressly provide not only that the loss or damage recoverable shall be referred to arbitration, but further, that no action shall be brought except for the sum awarded to be paid (c) . And where a policy against fire provided that the loss should be paid immediately after adjustment, and in case of difference should be submitted to arbitration, it' was construed as making adjustment by arbitration a condition precedent to the claim {d). A policy of insurance may further expressly provide that the HabUity as well as the amount of the loss shall be referred to and settled by arbitration, as a condition precedent to the claim of payment (e). Such conditions are legal and must be satisfied before a cause of action arises ; and consequently the Court will stay an action brought before the arbitration (/). Upon the same principle of construction in the case of building and engineering contracts with the condition for payment of such sums only as the architect or engiueer shall certify to be due, there is no claim or right of {a) Horton v. Sayer, 4 H. & N. Ex. 398 ; Braunstein v. Accidental 643 ; 29 L. J. Ex. 28 ; and see Daw- Death Ins., 1 B. & S. 782 ; 31 L. J. son T. Fitzgerald, L. E. 1 Ex. D. Q. B. 17. 257 ; 45 L. J. Ex. 893 ; Collins v. (d) Elliott v. Soyal Exch. Ass., Loche, L. B. 4 Ap. Ca. 674. L. R. 2 Ex. 237 ; 36 L. J. Ex. 129 ; (4) Cranworth, L. C, Scott t. Viney v. JBignold, L. E. 20 Q. B. D. Averij, 5 H. L. C. 811 ; 25 L. J. Ex. 172 ; 57 L. J. Q. B. 82. 312 ; per cur. Collins v. Loehe, L. E. (e) Trainor v. Phceiiix Ins., Times 4 Ap. Ca. 689. Eep. 9tli Nov. 1891. (o) Scott V. Avery, supra; Tredwen (/) Ihid. V. Salman, 1 H. & O. 72 ; 31 L. J. ARBITRATION AND AWARD. 821 action until the certificate is given {g). And in the case of a Chap, x. horse race for a sum of money to be paid to the winner upon the decision of the stewards, no claim can be made by tho winner, without showing a decision in his favour [h). Where a tenant of house and furniture covenanted to deliver them up in good order, and in the event of loss or damage to pay for the same the amount to be settled by two valuers, it was held that no action for dilapidations was maintainable until the sum was ascertained by the valuers {i). In the event of the arbitration failing a party may be entitled to claim upon the original consideration ; as in the case of goods sold and delivered at a price to be fixed by valuers, who are duly appointed by the parties, but fail to act (li). — Upon the same Statutory priuciple, arbitration clauses in Acts of Parliament presump- clauses, tively do not oust the jurisdiction of the Court ; but they may be obligatory by the express enactment, or impliedly by the objects which they are intended to serve; as in the Friendly Societies Acts, with respect to differences between the society and its members as to the management and internal affairs of the society (/) ; and in the Building Societies Acts (m). The arbitration provided by the Railway Companies Arbitration Act, 1859, is compulsory; but it does not oust the jurisdiction of the Court unless one of the parties insists upon the arbitration (m). An action lies upon a submission, or agreement to refer Eemedyty [g) Scott Y. Liverpool, 3 D. & J. {Ic) Cooper v. Shtittleworth, 25 L. J. 334 ; 28 L. J. 0. 230 ; ante, p. 558 ; Ex. 114 ; Dinham v. Bradford, L. R. Sharpe v. San Pauh Ry., L. R. 8 Ch. 5 Ch. 519 ; see Bentley v. Manchester 697 ; Wadsworth v. Smith, L. E. 6 Ry., (1891) 3 Ch. 222 ; 60 L. J. C. Q. B. 332; 40 L. J. Q. B. 118; see 641. Sadler v. Smith, L. E. 5 Q. B. 40 ; (I) Cairns, L. C, Mulkern v. Lord, 39 L. J. Q. B. 17; London Tramways L. E. 4 Ap. Ca. 190; 48 L. J. 0. Co. V. BaiUy, L. E. 3 Q. B. D. 217 ; 745 ; Suclde v. Wilson, L. E. 2 C. P. 47 L. J. Q. B. 74. 410. (A) Brown v. Overhury, 11 Ex. (m) Wright v. Monarch By. Soc, 715 ; 25 L. J. Ex. 169 ; see Parr v. 5 C. D. 726 ; 46 L. J. C. 649 ; Muni- Winterinyham, 1 E. & E. 394 ; 28 cipal Bg. Soc. v. Kent, 9 Ap. Ca. 260 ; L. J. Q. B. 123 ; Carr v. Martinson, Buckle v. Lordonny, 56 L. J. C. 437 ; 1 E. & E. 456 ; 28 L. J. Q. B.'126 ; Municipal Bg. Soc. t. Richards, 39 0. Dines V. Wolfe, L. E. 2 P. C. 280. D. 372 ; 58 L. J. C. 8. (i) Bahhage v. Coulhurn, L. E. 9 («) London, C. ^ L). Ry. v. S. B. Q. B. D. 235 ; 52 L. J. Q. B. 50. Ry., L. E. 40 C. D. 100 ; 58 L. J. 0. 75. 822 DISCHARGE OF CONTKACTS. on agree ment to refer. Part IV. differences, for a breach in refusing to refer ; thougli sucli agreement cannot be set up in answer to an action upon tbe cause referred (o) . But the damages in such action must in general be nominal, because it cannot be ascertained what the award would be, if the reference were carried out ; unless the agreement stipulated for liquidated damages {p). So an action will lie for refusing to appoint an arbitrator ; and where upon such refusal the other party is authorized by the terms of submission to proceed to an award, he may recover the sum awarded (g). And an arbitration bond with a penalty, conditioned to " perform " the award, is forfeited by a party preventing the award by revoking the authority of the arbitrator (r). The Court will not grant specific performance of an agree- ment to refer by compelhng a party to appoint an arbitrator, or to execute an arbitration bond [s) ; nor does the Arbitra- tion Act, 1889, give the Court power to make an order to that effect {t). And the Court will not grant specific perform- ance of an agreement to sell property at a price to be settled by arbitrators or valuers to be appointed by the parties, unless an award of the price has been made ; the mode agreed upon for settling the price being an essential condition of the contract {v) . But the Court will compel a vendor under such an agreement to admit the appointed valuer to enter to make a valuation {x) . Specific performance will be granted of .a contract of sale at a fair valuation, where the Court can provide the means of ascertaining the price (y). And the Specific perform- ance. io) Uvingslon v. Ralli, 5 E. & B. 132 ; 24 L. J. Q. B. 269. {p) Eldon, L. C, Street v. Sigiy, 6 Ves. 817. (q) Thomas v. Fredricks, 10 Q. B. 775. (»■) Vgnior's case, 8 Co. 81 b ; TFar- burton t. Storr, 4 B. & C. 103. (s) Eldon, L. C, Street v. Eigby, 6 Ves. 818 ; Grant, M. E., Gourlay v. Somerset, 19 Ves. 431 ; Wilks v. Davis, 3 Mer. 507 ; South Wales My. v. Wythes, 5 D. M. & G. 800 ; 24 L. J. 0. 87. (i) Re Smith and Kelson, L, E. 25 Q. B. D. 545 ; 59 L. J. Q. B. 533. (««) Millies V. Oery, 14 Ves. 400 Blundell v. Brettargh, 17 Ves. 232 Darbey v. TFhitaker, 4 Drew. 134 Viekers t. Tickers, L. E. 4 Eq. 529 , 36 L. J. C. 946 ; Firth v. Midland £y., L. E. 20 Eq. 100 ; 44 L. J. 0. 313 ; ante, p. 556. {x) Morse v. Mm-est, 6 Madd. 26 ; Smith T. Fetcrs, L. E. 20 Eq. 611 ; 44 L. J. C. 613. (y) Grant, M. E., Milnes v. Oery, supra; Gregory v. Mighell, 18 Ves. 328 ; Jackson y. Jackson, I Sm. & G. 184 ; 22 L. J. C. 873. ARBITRATION AND AWARD. 823 Court granted specific performance of an agreement for a Chap, x. lease to contain " all usual and proper conditions" as shall be judged reasonable by a land surveyor named ; the person not beiag held essential to the performance (s). Where an estate was sold at a fixed price, with furniture and other articles to be taken at a price to be fixed by valuers, the Court decreed specific performance of the contract, except as to the articles to be valued {a). And where the benefit of an agree- ment has been had and enjoyed upon the terms of paying a valuation price which cannot be ascertained as agreed, the Court will enforce completion and supply the valuation (b). By the Arbitration Act, 1889, s. 4, if any party to a sub- staying mission commences any legal proceedings m any (Jourt ceedmgs. against any other party to the submission in respect of any matter agreed to be referred, any party to such legal proceed- ings may apply to that Court to stay the proceediags ; and that Court may make an order staying the proceedings (c) . This enactment applies to all submissions of differences, and is not restricted to arbitration clauses in contracts, as to the differences arising out of the contract (d). And under this enactment it is the "prima facie duty" of the Court to stay proceedings upon matters which the parties have agreed to refer (e) . But the Court will refuse to stay legal proceedings, pending a submission to arbitration, where there is no bond fide defence (/) ; where they involve a charge of fraud made by the defendant {g) ; where the reference has been revoked, and no arbitration can be effected ih) ; where the defendant is unwilling to accept a complete arbitration of all differ- (z) Gourlay v. Somerset, 19 Ves. 0. 450 ; per car. Law t. Oarrett, 429. li. R. 8 0. D. 37 ; Lyon v. Johnson, (a) Richardson v. Smith, L. E. 5 L. E. 40 C. D. 579 ; 58 L.J. C. 626. Ch. 648 ; 39 L. J. 0. 877. (/) Lury v. Pearson, 1 0. B. N. S. (b) Dinham v. Bradford, L. R. 5 639 ; see SeligmoMn v. Le Boutillicr, Ch. 519. L. E. 1 0. P. 681. {c) See Ghappell v. North, (1891) 2 {g) Wallis v. Sirsch, 1 0. B. N. S. Q. B. 252 ; 60 L. J. Q. B. 554 ; .»«&?• 316; Russell v. Russell, L. E. 14 V. Yorkshire Fire Ass., (1892) 1 Q. C. D. 471 ; 49 L. J. C. 268 ; see B. 144. Sock V. Boor, 49 L. J. C. P. 665. (d) Randell v. Thompson, L. E. 1 (A) Randell t. Tlwmpson, L. E. 1 Q. B. D. 748 ; 45 L. J. Q. B. 713. Q. B. D. 748 ; 45 L. J. Q. B. 713 ; {e) Selbome, L. C, Willesford v. Deutsche Gesellschaft t. Briscoe, L. E Watson, L. E. 8 Ch. 480 ; 42 L. J. 20 Q. B. D. 177 ; 57 L. J. Q. B. 4. 824, DISCHAKGE OF CONTRACTS. Part IV. eiioes (i) ; and where the proceedings are not within the scope of the reference, unless that question is intention- ally included in the reference (k). The Court will not stay proceedings merely upon the ground that the reference in- cludes matters of law {I) ; but the Court may decide the matters of law first, and then allow the reference, if necessary, of the facts (m). And the Court will allow a reference, including the question whether the contract containing the agreement to refer has been dissolved (n). The Court may grant a stay of proceedings pending an arbitration referred to a foreign Court (o). Appoint- j^n agreement to refer does not import any undertaking by arbitrator, a party, in appointing an arbitrator, that the arbitrator will act, nor any liability for his not acting or for the failure of the arbitration in consequence (p). By the Arbitration Act, s. 6, it is provided that if an arbitrator refuses to act, or becomes incapable of acting, the party may appoint a new arbitrator ; and if he refuses to appoint an arbitrator, either originally or by way of substitution, the other party, after notice given, may appoint a sole arbitrator. Also in cer- tain cases of the appointment failing by disagreement of the parties, or by refusal, incapacity, or death of the arbi- trator, the Court is empowered by the Act to appoint ; but the Court has no general power of appointing in other cases (r). The statutory powers given to a party and to the Court to supply an arbitrator do not apply to mere valua- tions, which do not involve any differences ; as in the cases of sales of property at a valuation («). (s) Davis V. Starr, L. R. 41 C. D. (o) law v. Garrett, L.B. 8C. D. 26. 242 : 58 L. J. C. 808. (p) Cooper v. Slmttlnoorth, 25 L. J. (/c) Piercy v. Younr,, L. R. 14 C. D. Ex. 114. 200 ; see TFilksford v. Watson, supra ; (k) Arbitration Act, s. 5 ; iJ« Smith Turnell v. Sanderson, 60 L. J. C. 703 ; and Kelson, L. R. 25 Q. B. D. 545 ; Bee ante, p. 818. 59 L. J. Q. B. 533 ; Se mison J Sou, (I) Randegger v. Holmes, L. R. 1 (1892) 1 Q. B. 81 ; iSei'yre.S- ietwsto', C. P. 679; Norwood v. Watney, 49 (1892) 1 Q. B. 136. L. J. Q. B. 447. (s) CoUiiis V. Collins, 26 Beav. 306 ; (m) Ee Carlisle, L. R. 44 C. D. 28 L. J. C. 181; Bos t. Selsham, 200 ; 59 L. J. C. 620. L. R. 2 Ex. 72 ; 36 L. J. Ex. 20 ; («) Flews V. Baker, L. R. 16 Eq. see Me Hopper, L. R. 2 Q. B. 367 ; 664 ; 43 L. J. C. 212. 36 L. J. Q. B. 94 ; Ee Bawdy, L. R. ARBITRATION AND AWARU. 825 A submission by consent, and an order by consent for Chap. X. submission to arbitration, implies an agreement to perform Eemedies the award ; upon wliiclx an action will lie for non-per- -by action. formance {t). The action may be in the form of a claim for debt or damages, or for specific performance, according to the kind of liability imposed by the award (m). " That a bill will lie for the specific performance of an award is clear, because the award supposes an agreement between the parties and contains no more than the terms of that agreement ascertained by a third person" («). — A submission has also TJnder the same eileet in all respects as if it had been made an Court, order of Court ; and by the Arbitration Act, s. 12, " an award on a submission may, by leave of the Court or a judge, be enforced in the same manner as a judgment or order to the same eifect " (y). And by s. 15, in all cases of reference under an order of the Court or a judge in any cause or matter, " the report or award of any ofiBoial or special referee or arbitrator on any such reference shall, unless set aside by the Court or a judge, be equivalent to the verdict of a jury." An order by consent of the parties to refer the action, and all matters in difference, is not an order within the section, but an order by virtue of the consent only ; consequently the award cannot be reviewed by the Court as a verdict and is final (z). A submission, or agreement to refer diilerences to arbitra- Revocation tion is a binding contract which cannot be revoked by one of enoe. the parties, without the consent of the other (a). But the reference to a particular arbitrator under it was revocable at 15 Q. B. D. 426; 54 L. J. Q. B. 124; 35 L. J. C. 324. 574 ; £e Garus-Wihon, L. K. 18 Q. (x) Eldon, L. C, Wood v. Griffith, B. D. 7 ; 56 L. J. Q. B. 530. 1 Swanst. 54. (t) Lievesky v. Gilmore, L. R. 1 (y) See Order XLII. x-. 24 ; 1 & 2 C. P. 570; 35 L. J. G. P. 351 ; see Viet. o. 110, s. 18. Byles, J., lb. ; Conolan v. leyland, (z) Darlington Wagon Co. v. Sard- L. R. 27 C. D. 632 ; 54 L. J. C. 123. ing, (1891) 1 Q. B. 245 ; 60 L. J. (m) Hall V. Hardy, 3 P. Wms. Q. B. 110. 187 ; Wood V. Griffith, 1 Swanst. 54 ; (a) Piercy v. Toung, L. R. 14 Nickels v. Hancock, 7 D. M. & G-. C. D. 200 ; Forwood v. Watney, 49 300 ; Blachett v. Bates, L. R. 1 Ch. L. J. Q. B. 447. 826 DISCHARGE OF CONTRACTS. Paet IV. common law at any time before an award made (b) ; and if one arbitrator was appointed to act for both parties, either party might revoke his authority (c) . By the statute 3 & 4 Will. IV. c. 42, s. 39, the authority of an arbitrator was made irrevocable without leave of the Court or a judge, where the submission contained an agreement of the parties that it should be made a rule of Court (d). And the Arbitration Act, 1889 (repealing the above statute), now enacts generally, s. 1, that "a submission, unless a contrary intention is ex- pressed therein, shall be irrevocable, except by leave of the Court or a judge " (e). This enactment applies to the autho- rity of the arbitrator when appointed ; the agreement to refer being irrevocable by one party only independently of the statute (e). The Court will grant leave to revoke a reference upon grounds which would vitiate an award made under it ; as a wrongful admission of evidence or an erroneous decision of law (/). And the Court has jurisdiction to restrain an arbitration, but will not exercise it where the proceedings are futile and cannot result in any binding effect (g) . (4) Vymor''scase, 8 Co. 81b; Green Izard, L. E. 21 Q. B. D. 408; 57 V. Pole, 6 Bing. 443 ; Deutsche Gesell- L. J. Q. B. 524. schaft V. Briscoe, L. K. 20 Q. B. B. (e) Ante, p. 816 ; see per cur. Be 177 ; 57 L. J. Q. B. 4. Smith and Nelson, L. E. 25 Q. B. D. (c) Fraser v. Ehrensperger, L. R. 550 ; 59 L. J. Q. B. 533. 12 Q. B. D. 310 ; 53 L. J. Q. B. 73. (/) See East and West India Docks [d) See lie Rouse and Meier, L. B. t. Kirk, L. B. 12 Ap. Ca. 738; 57 6 C. P. 212 ; 40 L. J. C. P. 145 ; L. J. Q. B. 295 ; James v. lames, Thomson v. Anderson, L. R. 9 Eq. L. E. 23 Q. B. D. 12; 58 L. J. Q. B. 523 ; 39 L. J. C. 468 ; Eandell v. 424. Thompson, L. E. 1 Q. B. D. 748 ; 45 {g) Farrar v. Cooper, L. E. 44 C. D. L. J. Q. B. 713 ; Se Mitchell and 328 ; 59 L. J. C. 506. 827 Ohaptee XI. STATUTES OF LIMITATION. PAGE Statutes of Limitation — simple contracts — contracts under seal — money charged upon land — rent and interest of money charged upon land — dehts created by statute — penalties ; 827 Foreign debts — foreign limitations — limitations extinguish- ing right 832 Limitations of equitable rights and remedies — trusts of property — trusts to pay debts— bankruptcy and adminis- tration of assets — fiduciary agents 833 Disabilities of plaintiff — defendant beyond seas — joint debtor beyond seas 838 When the statute begins to run — judgment debts — bonds and covenants — bills — contracts giving credit — contracts for work — guarantees and indemnities — continuing breaches 841 Cause of action unknown — cause of action fraudulently concealed 845 Satute runs continuously — death of debtor — death of cre- ditor — computation of time — renewal of writ 847 Operation of the statute — option of pleading — payment of barred debt by executor — ^insolvent estates — Ken for debt 849 Kenewal of simple contract debts by ackuowledgnxent or promise — construction of written acknowledgment — con- ditional renewal — time of renewal — action upon re- newed liability — exemption from stamp duty 851 Renewal of simple contract debt by part payment — pay- ment of interest — transactions equivalent to payment. . 857 Eenewal of specialty debts — acknowledgment — effect on parties in diflerent interests 860 Acknowledgment by joint debtor — ^payment by joint debtor 863 Eenewal to or by agents — ^husband and wife — infant — executor 864 The right of action for a debt or breach of contract may be statutes of barred by the Statutes of Limitation, which prescribe a limit ^™ita*ioi'- of time within which the action must be commenced, and afford an absolute bar to an action brought beyond the pre- scribed limit. — By 21 Jao. I. o. 16, s. 3, "all actions of Simple contracts. 828 DISCHARGE OF CONTKACTS. Contracts imder seal and by specialty. PaetIV. 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 six years next after the cause of such actions or suit, and not after." — The actions upon the case include actions of assumpsit, which was the form of action for breach of a simple contract, express or implied, other than a mere debt («) . The exception of merchants' accounts is repealed by effect of the Mercantile Law Amendment Act, 1856, 19 & 20 Yict. c. 97, s. 9. The actions of debt for rent apply only to rent reserved on a demise without deed (6). By 3 & 4 Will. lY. c. 42, s. 3, " all actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or other specialty, and all actions of debt or scire facias 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 anj fieri facias, and all actions 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 vdthin the time and limitation here- inafter 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 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, vsdthin 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." — At common law bonds and specialty debts were presumed to have been satisfied after the lapse of twenty years without any Presump- .tive satis- faction. (a) Battley v. Faulkner, 3 B. & Aid. 288 ; Chandler v. Vilett, 2 Wms. Saund. 120. (4) Freeman v. Stacey, Hutt. 109 ; see Leigh v. Thornton, 1 B. & Aid. 625. STATUTES OF LIMITATION. 829 payment of interest or other acknowledgment of the deht. Chap. xi. The above enactment substituted a peremptory bar of twenty years, subject to the provision as to acknowledgment contained in the 5th section of the statute (c). By the Eeal Property Limitation Act, 1874, 37 & 38 Yict. Money c. 57, ss. 8, 9 (repealing and re-enacting 3 & 4 Will. IV. uponland. c. 27, s. 40 in the same terms with the substitution of twelve for twenty years), "no action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or Ken, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twelve years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same ; unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto or his agent ; and in such case no such action or suit or proceeding shall be brought but within twelve years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one, was given." — A debt on bond or covenant binding Construo- the heirs, though recoverable against heir and devisee to the *i°'^°*^<=*- extent of the real assets of the obligor, is not " charged upon or payable out of land," within this section ("P oy- affected by any statutes of limitation ; and a creditor who is not barred before the adjudication may prove his debt at any time after (g). But debts barred at the time of adjudication are not admissible to proof, even by consent of the trustee (h) . So judgment in an administration action prevents the running of statutes of limitation against creditors who are not then barred, and they may come in and prove at any time (i). And an order for winding up a company charges the assets with the payment of all liabilities subsisting at the date of the order ; and they are not afterwards affected by any statutes of limitation. " The Legislature intended to follow the analogy of other cases where the assets of a debtor are to be divided amongst his creditors, whether in bankruptcy or insolvency, or under a trust for creditors, or under a decree (c) Me Sarris, 49 L. J. C. 327. (g) Ex p. Moss, 2 Glyn & J. 46 ; (d) Scott V. Jones, i CI. & F. 382 ; Ex p. Lancaster £k., L. R. 10 C. D. Freake v. Oranefeldt, 3 M. & Or. 499 ; 776 ; 48 L. J. C. 89. Boatwright v. Boatwright, supra; Be (h) Be Baker, L. R. 44 C. D. 262 ; Stephens, supra. 59 L. J. C. 661 ; see Be Orpen, 50 (e) Garrard v. Lauderdale, 2 Russ. L. J. 0. 25 ; see post, p. 850. & jM. 461 ; Actm v. Woodgate, 2 Myl. (i) AngeUY. Haddm, 1 Madd. 529; & K. 492 ; Bare v. Glegg, 29 Beav. Teed y. Beere, 28 L. J. C. 782 ; Be 589 ; 30 L. J. C. 742; and see ante, Greaves, L. R. 18 C. D 551 • 50 L p. 786. J. C. 817. (/) Bhilips V. Philips, supra. STATXJTES OF LIMITATION. 837 of the Court of Chancery in an administration suit. In these Chap. xi. cases the rule is that everyhody who had a subsisting claim at the time is entitled to participate in the assets, and that the statute of limitations does not run against this claim ; but as long as assets remain unadministered he is at liberty to come in and prove his claim, not disturbing any former dividend" (/f). The claim to an account against an agent who stands in a Fiduciary fiduciary relation to his principal is free from the statutes of limitation, upon the same principle as the claim of a cestui que trust against his trustee : as in the case of an agent intrusted to sell property and to invest or hold the pro- ceeds (1) ; a director of a company who misapplies the money of the company (w) ; a clerk intrusted by his principal to receive fees or payments on his behalf («) ; an agent and receiver of rents of an estate (o) ; a receiver under an order of Court in relation to the beneficiaries entitled to the money received {p) ; and the Court will open settled accounts on the' ground of errors, whether caused by mistake or fraud, with- out regard to the statutes of limitation {q) . But the claim against an agent to recover profits wrongfully or fraudulently made by him in the execution of his agency, as by taking bribes or commissions, being money received for his own use and not for his principal, is barred by the statute, the time beginning to run from the discovery of the wrong or fraud (r). — A banker employed by a customer in the ordinary Banier. business of banking, that is, to receive money by way of loan to be disposed of as he pleases, under the obligation of cash- ing cheques of the customer in repayment, is not considered as standing in a fiduciary relation to the customer, and is (h) MeUieh, L. J., Re General Roll- Ca. 437 ; 59 L. J. G. 268. hig Stock Co., L. E. 7 Ch. 649; 41 (p) Seagram v. Tmlc, L. R. 18 C. L. J. C. 732. D. 296 ; 50 L. J. C. 572. [l) Burdklc v. Garriok, L. R. 5 Ch. (q) Allfrey v. Allfrey, 1 Mac. & 233 ; 39 L. J. C. 369 ; Re Bell, L. R. G. 87 ; ante, p. 102 ; iVilliamson t. 34 C. D. 462 ; 56 L. J. C. 307. Barbour, L. E. 9 C. D. 529 ; 50 L. J. (m) Flitcrofi's case, L. E. 21 0. D. C. 147 ; Gething v. Eeighley, L. R. 9 519 ; 52 L. J. C. 217 ; Re Sharpe, C. D. 547 ; 48 L. J. C. 45. (1892) 1 Ch. 154. (r) Metrop. Bk. v. Heiron, L. E. 5 , (k) Teed v. Beere, 28 L. J. 0. 782. Ex. D. 319 ; see ante, p. 409. (o) LyellY. Kennedy, L. R. 14 Ap. 838 UlSCIIARGE OF CONTRACTS. Pabt iy. entitled to the benefit of the statute of limitation as against his liability of repayment («) ; which it seems in an ordinary banking account only arises upon a demand by cheque it). But a banker intrusted with property for safe custody is in a fiduciaiy position which is not affected by statutes of limita- tion {u) . And a banker may be affected with notice that a deposit of a customer is trust money, so as to be charge- able with a breach of trust in misapplying it ; as where the deposit is made upon a specified separate account («). — A Solicitor, solicitor retained by a client for professional services, who receives money in the ordinary course of business, is not a fiduciary agent [y). But a solicitor employed upon a special trust, as where intrusted with money for investment, is in a fiduciary position and cannot take advantage of statutes of Partner. limitation (s) . — Partners are in the position of fiduciary agents in the conduct of the partnership business ; and the claim for an account between partners, so long as the relation ■ of partners continues, is not affected by any statutory limita- tion (a). But the claim to an account of partnership busi- ness after the termination of the partnership, against a partner who continues the business, is within the statute, and is barred by the lapse of six years from the time the partnership ceased (b) ; and a debt admitted to be due upon an account stated at the termination of a partnership is a debt within the statute (c). Disabilities of plaintiff excepted ty the statutes. By 21 Jac. I. c. 16, (cited above as limiting actions founded upon simple contract,) s. 7, it is provided " that if (s) Foley t. Bill, 2 H. L. C. 28 ; see TFaring's case, 36 L. J. C. 151 ; Johnson v. Sobarts, L. R. 10 Cli. 505 ; 44 L. J. C. 678 ; Sutton's Tnists, L. R. 12 C. D. 175 ; 48 L. J. 0. 350. {t) See Foit v. Clet/;/, 16 M. & W. 321. (m) Hatherley, L. C, Bm-dich v. Garriek, L. R. 5 Ch. 240 ; 39 L. J. C. 369. (j) Fx p. Kingston, L. R. Ch. 632 ; 40 L. J. B. 91 ; Bailey v. Finch, L. R. 7 Q. B. 34 ; 41 L. J. Q. B. 83. {y) Re Hindmarsh, 1 Dr. & Sm. 129; iratson v. TToodman, L. R. 20 Eq. 721. (z) Smith V. Foeocke, 2 Drew. 197 ; 23 L. J. 0. 545. (a) See ante, p. 451 ; Miller v. Miller, L. R. 8 Eq. 499 ; Kay, J., Barton v. N. Staff. Ry., L. R. 38 C. D. 463 ; 57 L. J. C. 800. (i) Knox T. Qi/e, L. R. 5 H. L. 656 ; see Rule v. Jewell, L. R. 18 C. D. 660. (c) Koyes v. Crawley, L. R. 10 C. D. 31; 48 L.J. 0. 112. STATUTES OF LIMITATION. 839 any person or persons that is or shall be entitled to any such Chap. XI. actions (including all the actions mentioned in s. 3 (a') ) be or shall be, at the time of any such cause of action given or accrued, within the age of twenty- one years, feme 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 returned from beyond the seas, as other persons having no such impediments should have done."— And by 3 & 4 Will. IV. c. 42 (cited above as limit- ing actions founded upon contracts by specialty), s. 4, the same disabilities, with the exception of imprisonment, are provided for in similar terms. — By the Mercantile Law Amendment Act, 1866, 19 & 20 Yict. c. 98, s. 10, the privi- lege under these statutes of a plaintiff who is imprisoned or beyond the seas was abolished. By 4 Anne, c. 16, s. 19, it is enacted "that if any person Defendant or persons against whom there is or shall be any cause of the seas. action (as therein specified, including the causes of action 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 return 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 3 & 4 Will. IV. c. 42, contains a similar provision with respect to actions on specialties accruing against persons beyond the seas. — And as to the meaning of the expression " beyond the seas " used in the above statutes, it is enacted " that no part of the United Kingdom of Great Britain and Ireland, nor of the Islands of Man, Guernsey, Jersey, Aldemey, and Sark, nor (d) Ante, p. 827 ; see Chandler v. ViUtt, 1 "Wms. Saund. 120 ; FigoU v. Titish, 4 A. & E. 912. 810 DISCHARGE OF CONTRACTS. Part IV. Joint debtor beyond the seas. Disability super- Tening. any islands adjacent to any of them, being part of the dominions of his Majesty, shall be deemed to be beyond the seas "(e). — The statute applies to the renewal of a debt by an acknowledgment or promise made by the debtor when beyond the seas ; against which the statute does not begin to run until his return (/). Under the above statutes, in the case of joint debtors, if one of joint debtors was beyond the seas at the time of the accrual of the cause of action, the limitation did not begin to run until his return, though the others remained within the jurisdiction (g'). But the Mercantile Law Amendment Act, 1856, 19 & 20 Yict. e. 98, s. 11, enacted that a creditor shall not be entitled to any time within which to sue any of joint debtors who shall not be beyond the seas, by reason only that one or more of such joint debtors were beyond the seas when the cause of action accrued ; and that he shall not be barred from suing a joint debtor who was beyond the 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 beyond the seas at the time aforesaid (Ji). The disabilities above mentioned must exist at the time when the cause of action first accrues ; where the statute has once begun to run no subsequently supervening disability wiU suspend its operation (»'). The disability of the debtor to pay for want of assets is no exception to the operation of the statutes ; for the creditor may recover a judgment which will be available against futuxe assets (A). But a debt may be contracted as payable out of a particular fund only, so that there is no cause of action, nor does the statute begin to run, until there is a fund to pay the debt (/). (e) 3 & 4 "WiU. IV. c. 42, s. 7; 19 & 20 Vict. c. 98, s. 12 ; see lane V. Bennett, 1 M. & W. 70 ; Flood v. Patterson, 29 Beav. 295 ; 30 L. J. C. 486. (/) Re Bethell, L. R. 34 C. D. 561 ; 56 L. J. C. 334 ; fee post, p. 851. {^) Fannin y, Anderson, 7 Q. B. 811. (A) See ante, p. 809. \i) Rhodes t. Smethurst, 6 M. & W. 351; per cur. Homfray t. Scroope, 13 Q. B. 612. {k) Emery v. Day, 1 C. M. & R. 245. (I) See ante, p. 552 ; Re Kensington Station Act, L, E. 20 Eq. 197 ; STATUTES 01' LIMITATION. 841 . The statutes of limitation in general begin to run fi'om Chap, xi. the time when the cause of action first accrues, subject to the When the above exceptive conditions of disability; and the cause of limitation action upon a contract first accrues upon a breach. There is j.^^^ no limitation of time to a contract before breach, except such as may be expressly or impliedly prescribed in its terms ; though a presumption may arise from lapse of time that the contract has been performed and satisfied, or has been mutually abandoned and rescinded (>«) . Where there are several conditions upon which a cause of action arises for the same debt, the statute runs against the debt from the earliest satisfied (n) . The limitation of an action for money charged upon land, under the Eeal Property Limitation Act, 1874, s. 8, begins to run " next after a present right to receive the same shall have accrued to some person capable of giving a discharge," which is not the same as a present right to sue(o). A judgment takes effect from the day when it is pro- Judgment nounced in Court, unless otherwise ordered ; and the entry of the judgment is dated as of that day(jj). An action to recover a judgment debt is therefore barred by the lapse of twelve years from that date(j). "As between the original parties to a judgment execution may issue at any time within six years from the recovery of the judgment "(r). And where six years have elapsed, or any change has taken place in the parties, execution may issue by leave of the Court (.s). And an order of the Court or a judge may be enforced in the same manner as a judgment to the same effect {t). The action to recover a debt under a foreign judgment, which is treated as a simple contract in the Courts Williams v. Hathaway, L. E. 6 C. D. {p) Order XLI. r. 3 ; see Se Man- 544. ning, L. K. 30 C. D. 480 ; Holtby v. [m) See ante, pp. 581, 683 ; Siboni Hodgson, L. B. 24 Q. B. D. 103 ; 59 v. Kirlcman, 1 M. & W. 418. L. J. Q. B. 46. («) Reeves v. Butcher, (1891) 2 Q. (?) 37 cfe 38 Vict. u. 57, a. 8 ; see B. 509 ; 60 L. J. Q. B. 619 ; post, ante, p. 830, n. (i). p. 842. (»•) Order XLII. i. 22. (o) See ante, p. 829 ; Hornsey Loc. (s) Order XLII. i. 23. Bd. V. Monarch Bg. Soc, L. B. 24 Q. (t) Order XLII. r. 24. B. D. 1 ; 59 L. J. Q. B. 105, 842 DISCHARGE OF CONTRACTS. Bonds and covenants. Part iy. of this Country, is six years from the recovery of the judg- ment (m). In the case of a single bond the cause of action is com- plete from the execution of the bond, and the action must be brought within twenty years from that date. In the case of a bond with a condition the cause of action accrues when the Condition is first broken ; as in the case of a post obit bond, the statute runs from the death upon which the money is payable (rf-). Where there are several conditions in a bond, or several covenants in the same deed, every distinct breach gives a new cause of action ; and the statute can only be pleaded as to those breaches which have occurred beyond the period of limitation (?/). Upon a bond conditioned to pay an annuity, default in each periodical payment is a distinct breach of the condition and gives a new cause of action (z). So with a bond or covenant to pay a sum of money by instal- ments ; but if it is stipulated that upon default in payment of one instalment the whole amount is to become due, then upon the first default a cause of action accrues for all that then remains due, and the statute begins to run forthwith (a). So under a lease each periodical accrual of rent gives a new cause of action against which the statute begins to run ; but as long as the relation of landlord and tenant subsists the right to rent is not barred, except that the arrears payable out of the land are limited to six years (b) . Upon a biU of exchange or other negotiable instrument the cause of action accrues when the instrument is due and unpaid, and notice of dishonour given where necessary ; and the statute runs from that time {c). A promissory note pay- Bills of exchange and notes. (m) Ante, p. 106 ; see Reimers v. Druee, 23 Beav. 160 ; 26 L. J. C. 196. [x) Tuclccy V. Hawkins, 4 C. B. 655. [y) See ante, p. 123 ; Sanders v. Ooioard, 15 M. & W. 48 ; per cur. JBlatr V. Ormond, 17 Q. B. 438 ; 20 L. J. Q. B. 453 ; see Ashlin v. Lee, 44 L. J. C. 174. (z) Amott V. Solden, 18 Q. B. 593 ; 22 L. J. Q. B. 14 ; White t. CorUtt, 1 E. & E. 692 ; 28 L. J. Q. B. 228. (a) Bempy. Garland, 4 Q. B. 619 ; Reeves v. Butelier, (1891) 2 Q. B. 509 ; 60 L. J. Q. B. 619. (A) Archbold v. Sculhj, 9 H. L. C. 360 ; see ante, p. 830. (c) See TFittersheim v. Carlisle, 1 H. Bl. 631 ; Frier v. Roe, 12 C. B. 437. STATUTES OF LIMITATION. 843 able upon demand, being held to be a present debt payable Chap, xi. immediately, tbe stainie p7'imd facie runs from the date of the note (d). But where such a note is given as a continuing security for future advances, as to secure a banking account, the statute does not begin to run until the credit is deter- mined and the account closed (e). A bill or note payable at a certain time after demand is not due until a demand made and the time elapsed, nor does the statute run until that time ; but a presumption of a demand having been made may arise from lapse of time, or from payment of interest, unless the interest is expressly payable by the contract (/). And upon a bill or note drawn payable at or after sight no cause of action arises, nor does the statute begin to run, until it has been presented for payment and become due (g). A right of action against the drawer or indorser of a bill arises upon dishonour by non-acceptance; in such case no new right of action arises upon non-payment and the statute runs accordingly ; but as against an indorsee taking such bill without notice of the prior dishonour, the statute does not run until the bill is due and unpaid (h). Where the holder ■of a bill or note delays suing until it is barred by the statute the prior indorsers are discharged ; and subsequent indorsees take the overdue bill subject to the statutory defence («'). On a mere loan of money the limitation commences from Contracta the date of the loan ; but if the contract fixes a time for re- frISt payment the statute runs from that time ; as in the case of a loan secured by a bill of the borrower payable at a future date, the statute runs, not from the advance of the money, but from the maturity of the bill (k). A loan of money for (d) Norton v. Bllam, 2 M. & W. (g) Holmes v. Kerrison, 2 Taunt. 461 ; ante, p. 561 ; see Malthj v. 323 ; Dixon v. Nuttall, 1 0. M. & E. Murrells, 5 H. & N. 813 ; 29 L. J. 307 ; Ee Boyse, L. B. 33 C. D. 612 ; Ex. 377 ; Ue Bethell, L. K. 34 C. D. 66 L. J. C. 135. 661 ; 56 L. J. 0. 334. (A) Whitehead v. Walker, 9 M. & («) Hartland v. Jukes, 1 H. & 0. W. 506. 667 ; 32 L. J. Ex. 162 ; see Chartered (i) See Scarpellini v. Atcheson, 7 Bankof IndiaY. J)ickson,'L.'R 3P. C. Q. B. 864; Webster v. Kirke, 17 Q. 574. B. 947; 21 L. J. Q. B. 159. . (/) Ee Eutherford, L. R. 14 0. D. {k) See ante, p. 551 ; Wiltersheim 687 ; 49 L. J. C. 654 ; ante, p. 561 ; v. Carlisle, I H. Bl. 631. see Clayton v. Josltng, 5 B. & C. 360. 844 DISCHARGE OF CONTEACTS. paet IV. which the lender gives his cheque to the borrower dates, not from the delivery, but from the cashing of the cheque [l). A sale of goods at six months' credit, payment to be then made by bill at three months, is in effect a credit for nine months ; and in an action for the price the statute runs from the maturity of the bill ; but if a bill is not given according to the contract, an action will lie from that time {m). — Where indefinite credit is given which the creditor may put an end to at any time by a demand of payment or by commencing an action, as is the case generally with contracts implied in law, the statute runs from the time when the debt is first due and actionable ; though the debtor is not in default so long as the credit is continued, and may tender payment at any time before a demand is made (k). Under a contract for work there is in general no claim for payment, and the statute does not begin to run, until the work is completely performed ; as in the case of a solicitor retained to conduct an action, the statute does not begin to run against his bill of costs until the termination of the action, or the termination of his retainer by a proper notice (o) ; and an appeal is a continuation of the action for this purpose, and postpones the accrual of his claim {p). The right of action against a surety accrues, and the statute begins to run, immediately upon the default of the principal debtor; and the time is not postponed by disputes arising between the debtor and the creditor concerning the default {q) . Upon an indemnity against the costs of legal proceedings, the cause of action, for the purpose of the statute, dates from the payment of the costs and not from the time of incurring the liability to pay (r). Upon the implied indemnity in accepting Contract for work. Guarantee and in- demnity. {I) Garden v. Bruce, L. R. 3 C. P. 300; 37 L. J. C. P. 112. (m) Selps T. Winteriottom, 2 B. & Ad. 431. (n) Ante, p. 742 ; Collins v. Ben- ning, 12 Mod. 444 ; Jaehson v. Ogg, Johns. 397 ; Pott t. Clegg, 16 M. & W. 321. (o) Harris v. Osbourn, 2 C. & M. 629 ; Martindah v. Falhicr, 2 C. B. 706 ; Whitehead v. Lord, 7 Ex. 691 ; 21 L. J. Ex. 239, But see Jeseel, M. R., Re Sail and Barker, L. E. 9 C. D. 543 ; 47 L. J. C. 621 ; per cur. Beck V. Fierce, L. R. 23 Q. B. D. 323; 58 L. J. Q. B. 516. (p) Harris r. Quine, L. R. 4 Q. B. 653; 38 L. J. Q. B. 331. (r?) Colvin v. Buckle, 8 M. & W. 680 ; Soil V. Hadleu, 2 A. & E. 758. ()•) ColUiige T. Seywood, 9 A. & E. 633 ; Huntley v. Sanderson, 1 C. & M. 467. STATUTES OF LIMITATION. 845 an accommodation bill, the cause of action arises not when Chap, xi. the bill becomes due, but when the acceptor is damnified by payment (s). In the case of co-sureties the action for con- tribution accrues as soon as one has in fact paid more than his proportion, and the statute then begins to run against his claim for the excess ; the action by a surety against the prin- cipal debtor for money paid for his use accrues at the time he in fact pays the debt {t) . A breach of contract may be in its nature continuing, with a Continu- continual renewal of the time of limitation. Thus a covenant 1)16301163. for title is broken by the existence of an adverse title, and is continuously broken so long as the adverse title exists ; as by an outstanding prior lease so long as the term lasts ; the cove- nantee in such case may sue from time to time whenever any damage results, but only such damage will be recoverable as has occurred within the time of limitation (u). " In the case of a covenant to repair the breach is continuing, because the covenant is broken afresh every day the premises are out of repair, and when an action is brought for breach of such a covenant, the plaintiff does not recover the value of the repairs, because he may recover again if the want of repair still continues" (»). The statutory limitation runs against an action at common Cause of law, though the cause of action was unknown to the plaintiff, unknown. In the case of a solicitor neglecting to examine the title of property sold, which was consequently lost to his client the purchaser, it was held that the right of action dated from the act of the negligence, though it was unknown to the client and not discovered by him until barred by the statute (j/). So in the case of a debtor beyond the seas, the statute begins to run from the date of his return within the jurisdiction for (s) Reynolds v. Doyle, 1 M. & G. 9 Ex. 99 ; 43 L. J. Ex. 57. 753; 2 Soott, N. R. 46. (x) Bramwell, B., 8poor t. Green, {t) Da/oies v. Humphreys, 6 M. & supra ; Bee post, pp. 905, 929. W. 153 ; see ante, p. 61. {y) Short v. McCarthy, 3 B. & Aid. («) Kingdon y. Nottle, 1 M. & S. 626 ; Brown t. Howard, 2 B. & B. 355 ; 4 M. & S. 53 ; King v. Jones, 73 ; Homll y. Young, 5 B. & 0. 259. 4 M. & S. 188 ; Spoor v. Green, L. E. 846 DISCHARGE OF CONTRACTS. Damage unknown, Paet IV. however short a time, though unknown to his creditor (z}. And upon a promise by a debtor to pay when he was able, it was held that the statute began to run from the time when the debtor first became able to pay, though the creditor was ignorant of the fact («). But a right of action against a bailee of goods for not delivering them back to the owner on demand is not barred by a previous wrongful conversion of the goods unknown to the owner, for which the right of action has become barred by time ; the contract being distinct from the wrong (b). — The statute also runs from the time a contract is broken against any claim for consequential damage arising from the breach, though not then known or contemplated; as the damage arising from a breach of warranty of seed corn, which could not be discovered until after it was sown (c). But where such damage constitutes a new cause of action, not recoverable as damage under the original breach, the statute runs from the time of the damage happening (d). — The Court has no jurisdiction to grant relief against the statute upon the ground that the cause of action was unknown to the plaintiff ; unless it was also fraudulently concealed by the defendant (e). In the Courts of common law a replication to a plea of the statute of limitations, that the cause of action was fraudulently concealed from the plaintiff by the defendant, was held bad (/) . But the Court of Chancery did not allow a party who was guilty of such fraud to take advantage of the statute in respect of the time elapsed before discovery of the fraud (g). Under the Judicature Acts the doctrines of Cause of action fraudu- lently concealed. (z) Gregory v. JTurrill, 5 B. & C. 34i ; Bee ante, p. 839. (o) rFaters v. Thanet, 2 Q. B. 757 ; seB post, p. 855. (A) Wilkinson v. Verity, L. R. 6 C. P. 206 ; 40 L. J. C. JP. 141 ; see Granger v. George, 5 B. & 0. 149 ; Miller v. Bell, (1891) 1 Q. B. 468 ; 60 L. J. Q. B. 404 ; ante, p. 660. (c) Battletj Y. Faulkner, 3 B. & Aid. 288 ; seeSowellv, Young, siipra; Violett T. Sympson, 8 E. & B. 344 ; 27 L. J. Q. B. 138 ; Bonomi v. Backhouse, 9 H. L. C. 503. (rf) Darley Main Coll. v. MitcheU, L. R. 11 Ap. Cas. 127; 63 L. J. Q. B. 471; CrumUev. WallsendZ. B., (1891) 1 Q. B. 503 ; 60 L. J. Q. B. 392 ; see post, p. 904. (e) Fer cur. Gibbs v. Guild, L. R. 9 Q. B. D. 69 ; 51 L. J. Q. B. 313 ; Fains v. Buxton, L. R. 14 C. D. 637; 49 L. J. C. 473. (/) Clark V. Eougham, 2 B. & C. 149 ; Imperial Gas Co. v. London Gas Co., 10 Ex. 39; 23 L. J. Ex. 303 ; Sunter v. Gibbons, 1 H. & N. 459 ; 26 L. J. Ex. 1. (17) Blair v. Bromley, 5 Hare, 542 ; 2 PhiU. 354. ' STATUTES OF LIMITATION. 847 law and "equity are now administered concurrently in all Chap. XT . divisions of the High Court ; a defendant who has fraudu- lently concealed the cause of action is excluded from the benefit of the statute ; and the statute does not run against the claimant until discovery of the fraud, or until such dis' covery can be reasonably imputed to him {h). — The right to bring an action for the recovery of land or rent of which a person may have been deprived by a concealed fraud is expressly provided for by the statute 3 & 4 Will. IV. c. 27, s. 26, enacting that such right " shall be deemed to have first accrued at and not before the time at which such fraud shall, or with reasonable- diligence might have been first known or discovered " (?) : with a proviso saving the right of any bo)id fide purchaser for valuable consideration, who had no notice of the fraud {k). When the statute has once begun to run it is not stopped statute or suspended by any supervening disability, or other circum- tinuousiy. stance preventing the creditor from bringing an action {I). If the statute begins to run against a debtor in his lifetime Death of it is not stopped or suspended by his death ; and the debt becomes barred, though no personal representative was ap- pointed capable of being sued within the time of limitation, and though an action was commenced as soon as a repre- sentative was appointed (;h) . But if the cause of action does not accrue until after the death of the debtor, the statute does not begin to run until a representative is appointed who is capable of being sued (n). — Nor is the statute suspended Death of by the death of the creditor ; the debt becomes barred, though no personal representative was appointed within the period of [h) Gihhsy.Guild, supra; see Eccles. Lawrancey. Norreys, L. R. 15 Ap. Oommiss. v. North Eastern By., L. R. Ca. 210 ; 59 L. J. C. 681. 4 C. D. 845 ; 47 L. J. C. 20 ; Metrop. {k) See Vane v. Vane, supra. Bank v. Beiron, L. R. 5 Ex. 319 ; He (I) See ante, p. 840. Crossley, L. R. 35 C. D. 266 ; Moore (m) Shades v. Smethurst, 6 M. & V. Xni(/ht, (1891) 1 Ch. 547 ; 60 L. J. W. 351 ; Freake v. CranefeUt, 3 M. C. 271. & Or. 499 ; Soatwright v. Boatwright, (i) Chetham v. Moare, L. R. 9 Eq. L. R. 17 Eq. 71 ; 43 L. J. 0. 12. 571 ; 39 L. J. C. 376 ; Vane v. Vane, {n) See Burdick v. Garrick, L. R. L. R. 8 Ch. 383 ; 42 L. J. C. 299 ; 5 Ch. 233 ; 39 L. J. C. 369. 848 DlSCHAUC+E OF CONTRACTS. Paet IV. Computa- tion of time of limitation. limitation (o) ; and though his executor commenoed an action within a reasonahle time after his death (i?). But if the cause of action accrued after the death of the creditor, the statute does not begin to run until a representative is ap- pointed capable of suing {q). So in the case of a debt payable on certain conditions, if the creditor dies intestate before the conditions are satisfied, the cause of action is not then complete, and the statute does not begin to run before the appointment of an administrator (r). And " if a creditor dies intestate on the day a debt becomes payable to him, and there is no evidence to show whether he died before or after the moment when the debt became payable, the statute does not begin to run against his administrator untU letters of administration have been taken out"(s). — An action com- menced in the lifetime of the creditor or debtor does not abate by the death of either, if the cause of action survives, and it may be carried on in the manner provided by the rules of court {t) ; or in such case a new action may be com- menced by or against the representative of the deceased party, within a reasonable time after the appoiutment of such representative, and though in the meantime the limita- tion has expired («<). — If a debtor takes out administration to his creditor, the remedy is suspended without discharging the debt ; but if a debtor is appointed executor, the statute ceases to run, because he is considered as having paid the debt and as holding the sum as part of the estate {x). The time of limitation prescribed by the statutes " after the cause of action " is computed exclusively of the day on which the cause of action accrued {y). The commencement (o) Hickman v. Walker, Willes, 27 ; Bee 2 Wms. Saund. 63 k. {p) Penny v. Brice, 18 C. B. N. S. 393. {q) Murray t. East India Co., 5 B. & Aid. 204 ; Clark y. Meirop. Gas Co., fi4 L. J. C. 259 ; Burdick v. Oarrick, supra. But see 3 & 4 Will. IV. c. 27, s. 6; Se Williams, L. R. 34 C. D. 5.58; 56 L. J. 0. 123. (r) .Atkinson v. Bradford B. S., L. R. 25 Q. B. D. 377; 59 L. J. Q. B. 360. (s) Ber cur. ib. (t) Order XVII. (k) Swindell v. Bulkchy, L. K. 18 Q. B. D. 250; 56 L. J. Q. B. 613; see Sturgis v. Sarcll, 6 H. & N. 120 ; 29 L. J. Ex. 472. (x) Seagram v. Knight, L. E. 2 Cai. 628 ; 36 L. J. C. 918 ; see post, p. 1087; Ingle v. Richards, 28 Beav. 366. {y) Ihirdy v. Hylc, 9 B. & C. 603 ; see ante, p, 729. STATUTES OP LIMITATION. 849 of the action, which must be brought within the time of Chat. xi. limitation, is the date of issuing the original writ of summons ; and the writ bears date on the day on which it is issued (s). — The original writ of summons continues in force for twelve Renewal months from the day of the date thereof, including the day of the date. But before the expiration of the twelve months it may be renewed, by leave of the Court or judge, for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed writ. "And a writ of summons so renewed shall remain in force and be available to prevent the operation of any statute whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of the original writ of summons" (a). The renewed writ prevents the operation of the statute in that action, but not in any other action or proceeding ; as in the case of the plaintiff bringing an administration suit to recover the same debt {b). And the Court will not amend the writ by adding causes of action which have become barred since issuing the writ(c). Nor will the Court, except perhaps under exceptional circum- stances, renew the writ after it has expired and the right of action has become barred {d). The Statutes of Limitation offer an absolute bar to a claim Operation dating beyond the prescribed limitation of time ; whether statute. charged as a cause of action or a cause of set-off or counter- claim. But a party wishing to take advantage of the statute must plead it, with an allegation of any facts necessary to show the application of it to the claim (e). " The statute fur- Option of nishes an absolute legal answer to the hand of the debtor, and thrstatute. it does therefore extinguish the debt at his volition, but it is (a) Order II. rr. 1,8. {d) See Order LXIV. r. 7 ; Hoyle (a) Order VIII. ; see Sume v. v. Kaufman, L. R. 3 Q. B. D. 340 ; Somerton, L. E. 25 Q. B. D. 239 ; 59 47 L. J. Q. B. 26 ; Sewett v. Barr, L. J. Q. B. 420. (1891) 1 Q. B. 98; 60 L. J. Q. B. (b) Manby v. Manby, L. R. 3 C. D. 268. 101. (e) Order XIX. r. 1 5 ; Order XXV. ; (e) Weldon v. Neal, L. E. 19 Q. see Dawkins y. Fenrhyn, L. R. 4 Ap. B D. 394 ; 56 L. J. Q. B. 621. Ca. 51 ; Noyes T. Crawley, L. R. 10 CD. 31. L. 3 I 850 DISCHARGE OF CONTRACTS. Paet IV. Executor may pay tarred debt. Legatee must account for barred debt. Insolvent estates. only at his volltioii, the Courts having always held that it was optional to the defendant to plead the statute or not, and that if he did not, the law would treat the debt as an existing obligation and lend the process of the Court to enforce its discharge "(/). An executor or administrator of a debtor has the same option to plead the statute ; and he may, in the exercise of his discretion, pay a barred debt and charge it against the per- sonal estate, and if that is deficient, against the real estate (^). And an executor may retain for a debt due to himself which is barred by the statute [h). A creditor of an intestate is entitled to a grant of administration, though his right of action is barred by the statute (^'). But in an administration suit in which the assets are administered by the Court creditors and any other parties interested in the estate may claim the benefit of the statute against barred debts in protection of their own interests (k). — A pecuniary legatee, who is also a debtor to the estate of his testator, must account for the debt in payment of his legacy, though the remedy by action is barred by the statute (/) ; and so where a next of kin is indebted to the estate of an intestate {ni) ; and where a creditor of a testator is indebted to the estate in respect of a barred debt (m). — ^In administering an insolvent estate in bankruptcy the trustee, as acting for the creditors, has no option to admit proof of debts barred by the statute [o). And by the Judicature Act, 1875, s. 10, the same rule applies in administering the insol- vent estate of a deceased person ( p) . (/) "Wilde, J., Coombs v. Coombs, L. R. 1 Prob. 289 ; 36 L. J. P. 21 ; Cairns, L. C, DawMns v. Penrhyn, supra. {ff) Zoivis V. JRumney, L. E. i Eq. 451 ; see per cur. Ue Eownson, L. E. 29 C. D. 362 ; 64 L. J. C. 950 ; and see post, p. 866. (7») Siahlschmidt v. Lett, 1 Sm. & GiflE. 416; see post, p. 1089. (i) Coombs v. Coombs, supra. (k) Eldon, L. C, Jix p. Dcwdney, 15 Ves. 498 ; Shower v. Vanderhorst, 1 Euss. & M. 347 ; 2 ib. 76 ; F/iillips T. J3ea!e, 32 Beav. 26 ; see Fordham v. Wallis, 10 Hare, 217 ; 22 L. J. C. 648. (I) Cotirtenay v. Williams, 3 Hare, 539 ; Coates v. Coates, 33 Beav. 249 ; 33 L. J. C. 448 ; Se Akerman, (1891) 3 Ch. 212 ; 61 L. J. C. 34 ; see Me Orpen, L. R. 16 C. D. 202 ; 60 L. J. C. 27 ; post, p. 878. ()«) White V. Cordwell, L. R. 20 Eq. 644 ; 44 L. J. C. 746. («) Gee V. Liddell, 35 Beav. 629. (n) Ex p. Dewdney, 15 Ves. 479; JSxp. Moffey, 19 Ves. 468. (p) Re Baker, L. R. 44 C. D. 262 ; 59 L. J. C. 661. STATUTES OF LIMITATION. 851 The statutes of Limitation only bar the remedy by personal Chap. xi. action, leaving all other securities for the debt unaffected. Lien for " In accordance with this construction of the Act, it has been ^eS! repeatedly decided that if a creditor by means of a lien, or other lawful means, can pay himself without resorting to an action against the person of the debtor he may lawfully do so " (q). And a general lien, by usage or otherwise, includes debts barred by the statute ; though barred before obtaining possession of the goods upon which the lien is held (r). A solicitor's lien upon documents includes costs barred by the statute ; and such costs must be allowed on taxation under an order for delivering up the documents (s). Upon the same principle a mortgagee may retain the mortgaged property, though the personal action for the debt is barred by the statute (t) ; and he may charge the proceeds of the property under a power of sale with more than six years' arrears of interest, though he cannot recover more by action («) . But the debtor cannot reduce the lien of his creditor by setting off a claim against him that is barred by the statute [v). Upon the same principle if a debtor pay money to a creditor without directing the appropriation, the creditor, having acquired the right to apply it to one or other of several debts, may apply it in payment of a debt of which the remedy by action is barred by the statute («). The liability for a simple contract debt may be renewed, Eenewai with the effect of taking the case out of the operation of the contract^ statute and renewing the time of limitation : by an acknow- <^^^*^- ledgment or promise ; by part payment of the debt ; or by payment of interest. — By 9 Geo. IV. c. 14 (Lord Tenterden's Act), s. 1, after reciting the above-mentioned enactment of (?) Biggins t. ScoU, 2 B. & Ad. C. D. 424. 413 ; Seager t. Aston, 26 L. J. C. (i!) Re Hancock, hi L. J. 0. 793. 809 ; Re Garter, 55 L. J. C. 230 ; see (m) Re Marshfleld, L. E,. 34 C. D. CarUr t. CarUr, L. K. 25 C. D. 666 ; 721 ; 56 L. J. C. 599 ; ante, p. 830. 54 L. J. C. 138. {v) Langdale, M. K., Courtenay v. (»•) Eldon, C. J., Spears v. Sarily, Williams, 3 Hare, 552. 3 Esp. 81. [x) Mills V. JFowlces, 5 Bing. N. C. (s) Curwen v. Milburn, L. E. 42 45.5 ; see ante, p. 792. 3i2 852 DISCHARGE OF CONTRAOfS. PaetIV. 21 Jac. I. c. 16, s. 3, and that "questions have arisen in actions founded on simple contract as to the proof and effect of acknowledgments and promises offered in evidence for the purpose of taking cases out of the operation of the said enactment," it is enacted, " that in actions of deht, or upon kdgmmt ^^® ^^^^' grounded upon any simple contract, no acknowledg- er promise, ment Or promise by words only shaU be sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactment, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby." And by s. 4, " this Act shall be taken to apply to the case of any debt on simple contract alleged by way of set-off on the part of any defendant, either by plea, notice or otherwise." By the Mer- cantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97), s. 13, it is enacted, in reference to the above sections of Lord Tenterden'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 acknowledgment or promise, shall have the same effect as if such writing had been signed by such party himself." And the signing by the party or agent may be in any manner sufficient to authenticate the writing (y). — The effect of an acknowledgment in taking a case out of the statute applies only to 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." In such case a promise in renewal of the liability for the breach of contract must be treated as a new and original contract requiring a valid consideration (z). M Solmea v. Mackrell, 3 C. B. McCarthy, SB. & Aid. 626; White- N S. 789 ; see ante, p. 234. head t. Howard, 2 B. & B. 372 ; see [z) iiiUenborough, 0. J., BoydellM. post, p. 861, ^. (o). Srummond, 2 Camp. 162; Short v STATUTES OF LIMITATION. 863 The construction of the written document, as containing an Chap. XI. acknowledgment or promise sufficient to take the case out of Construo- the statute, is a question of law for the Court, according to written the general rule (a). And if the written document is lost, fedrnnrait. secondary evidence, though not in writing, may be given of the contents (6) . But Lord Tenterden's Act has made no alteration in the legal construction to be put upon acknow- ledgments or promises ; and since that Act, as before, there must be an express promise to pay the debt ; or such an acknowledgment of the debt from which a promise to pay must be inferred (c). And " 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 accompanies it with an express declaration to prevent any such implication, the rule expressum facit cessare taciturn applies" (d). — Accordingly expressions Implied importing hope, or expectation, or deliberation, or endeavour to pay. to pay ; or regret or excuse for not paying ; or inability to pay, taken alone are held to be not sufficient to take the case out of the statute (e) ; but such expressions, if appended to an absolute acknowledgment of debt, are not sufficient to rebut the promise implied in such acknowledgment (/). If an acknowledgment of debt is accompanied with repudiation of liability ; as a distinct refusal to pay, or a statement that the debt has been paid, or that it is barred by the statute or other like grounds of repudiation, no promise can be im- plied {g). A request by a debtor "to send in his account;" or any acknowledgment of an account pending prima facie (a) Morrell v. Frith, 3 M. & W. Sart v. Prendergast, U M. AW. 402 ; Routledge v. Samsay, 8 A. & E. 741 ; Smith v. Tlwrne, 18 Q. B. 134 ; 221; see ante, -p. 184. 21 L. J. Q. B. 199; Sackham v. (A) Haydon v. Williams, 7 Bing. Marriott, 2 H. cfeN. 196; 26 L. J. 163 ; see ante, pp. 185, 706. Ex. 315; Green v. Hiimphrys, iupra. (c) Per eur. SaydonY. Williams,'! (/) Eramwell, B., Sidivell v. Bing. 166 ; Parke, B., Williams v. Mason, 2 H. & N. 310 ; 26 L. J. Grijfith, 3 Ex. 342 ; per cur. Green v. Ex. 409 ; Cornforth v. Smithard, 5 Bumphrys, L. E. 26 C. D. 474 ; 53 H. & N. 13 ; 29 L. J. Ex. 228 ; Lee L. J. C. 625. V. Wilmot, L. R. 1 Ex. 364 ; 35 L. J. id) Per cur. Tanner v. Smart, 6 B. Ex. 175 ; Chasemore v. Turner, L. R. & C. 609. 10 Q. B. 500 ; 45 L. J. Q. B. 66. (e) Fearn v. Lewis, 6 Bing. 349; [g) A'' Court v. Cross, 3 Bing. 329; Morrell v. Frith, 3 M. & W. 402 ; Prigstocke y. Smith, 1 C. & M, 483, 854 DISCHAUGE OF CONTRACTS. Pabt IV. Amount of debt. Acknow- ledgment limited to special purpose. implies a promise to pay what shall be found due upon that account and takes it out of the statute (h). And an acknow- ledgment of some balance being due implies a promise to pay ; which is not rebutted by an accompanying demand for an account with vouchers (^'). But a request by a debtor for his bill, which he promised to pay "if just," was held not to be sufficient admission of liability {k). — The amount of the debt acknowledged or promised in the writing may be supplied by extrinsic evidence (/) : as in the ease of an acknowledgment of "the bill," or the "account" or "the balance" due (m) ; or the promise of a joint debtor to pay his " proportion " of the debt (») ; or the promise of a surety to pay the deficiency of the principal (o). — An acknowledgment made for a special purpose is limited in effect to the purpose intended, and cannot be taken beyond that purpose as a renewal of the debt : as a proposal for discharging the debt by a set-off or some special arrangement (p) ; or by a pay- ment by instalments {q) ; a proposal to submit the debt to arbitration (r) ; a consent by a surety that his UabUity shall not be prejudiced by the creditor taking a composition from the principal debtor (.s) ; and an acknowledgment expressly made "without prejudice "((!). An agreement settling a particular item of an account has no effect in acknowledging the general account (z*). An acknowledgment of a debt ia proceedings in bankruptcy or composition with creditors, (/i) SidioellY. Mason, supra; Quincey V. Sharpe, L. R. 1 Ex. D. 72 ; 45 L. J, Ex. 347 ; France v. Sympson, Kay, 678 ; Banner v. Berridge, L. E. 18 C. D. 254 ; 50 L. J. 0. 630. (i) Sheet v. Lindsay, L. E,. 2 Ex. D. 314 ; 46 L. J. Ex. 249. (k) Spong v. Wright, 9 M. & W. 629. {I) Alderson, B., Spong v. Wright, supra; Parke, B., Williams v. Griffith, 3 Ex. 343. (/n) Quincey v. Shar/ie, supra; Gardner v. McMahon, 3 Q. B. 561 ; Waller v. Lacy, 1 M. & G. 54. (n) lechmere v. Fletcher, 1 0. & M. C23. (o) Humphreys v. Jones, 14 M. & "W. 1. {p) Routledge v. Jiamsay, 8 A. & E. 221 ; Cripps t. Sacies, 12 M. & "W. 159 ; Goate v. Goate, 1 H. i- N. 29 ; Francis v. Bawkesley, 1 E. & E. 1052 ; 28 L. J. Q. B. 370 ; Re River Steamers Co., L. R. 6 Ch. 822. (}) Buckmaster v. Russell, 10 C. B. N. S. 745. (»•) Re River Steamers Go., supra. (s) Cockrdl v. Sparke, 1 H. & 0. 699; 32 L. J. Ex. 118. {t) See lb. {u) Hughes v. Paramore, 7 D. M. &G. 229; 24 L.J. C. 681. STATUTES OF LIMITATION. 855 though sworn to by the debtor, does not take the case out of Chap.xi. the statute in other proceedings (x). " The new promise and not the old debt is the measure of Coudi- •■^ _ tional the creditor's right. If a debtor simply acknowledges an renewal. old debt, the law implies from that simple acknowledgment a promise to pay it; for which promise the old debt is a sufficient consideration. But if the debtor promises to pay the old debt when he is able, or by instalments, or in two years, or out of a particular fund, the creditor can claim nothing more than the promise gives him" (y). The con- ditions must be accepted and satisfied in order to renew the liabnity, and the renewal dates from the time when the promise becomes absolute. A promise by the debtor to his creditor that " if he could prove the debt he would pay him " was held to be a conditional promise, and that the condition was to be satisfied by proof in an action for the debt, and therefore the case was taken out of the statute (z). So a promise by the debtor to pay "as soon as he is able" becomes absolute when he first becomes able ; and though his ability may not then be known to the creditor (a). A promise that " as soon as we can get our affairs arranged we will see you paid " was construed either not to be conditional, or if con- ditional, that the condition was presumptively satisfied after a" reasonable delay (S). — The renewal of liability may be Time of made before or after the debt is barred by the statute (c). ™'^^'^^' And it is material to the construction of the acknowledgment or promise whether the debt is barred or not at the time of making it : in the former case the debtor is in a position to couple any promise he makes with a condition ; in the latter (x) Everett v. Eobertson, 1 E. & E. ante, p. 846 ; Hammond v. Smith, 33 W- i^Ij. 3. Q,.'&.'ii; Ex p. Topping, Beav. 452; Meyerhoff v. Froehlich, 4 D. J. & S. 551 ; 34 L. J. B. 44. L. R. 4 G. P. D. 63 ; 48 L. J. C. P. (y) WigTam, V.-C, Philips v. 43 ; -Be -BrfAeZ/, L. K. 34 0. D. 561 ; Philips, 3 Hare, 300 ; Williams, J., 56 L. J. C. 334. Euekmaster v. Sussell, 10 C. B. N. S. [b) Chasemore v. Turner, L. R. 10 749. Q. B. 500 ; 45 L. J. Q. B. 66. (z) Syleing v. Bastings, 1 L. Raym. (c) Ghannell y. Ditchburn, 5 M. & 421 ; Com. 54. ' W. 494; Goddardy. Ingram, 3 Q. B. (a) Tanner v. Smart, 6 B. & 0. 839 ; Latouche v. Latouche, 3 H. & C. 603 ; Saydon v. Williams, 7 Bing. 576 ; 34 L. J. Ex. 85 ; see Bunting t. 1(,Z; Edmunds \.I)ownes,%G.k.M.. Sargent, L. R. 13 C. D. 330; 49 459 ; Waters v. Thanet, 2 Q. B. 757 ; L. J. 0. 109. 856 DISCHARGE Ob' CONTEACTS. Action on renewed liability. paet IV. he lias no right to impose terms, and must he presumed to have no such intention (d) ; and where an action is hrought upon the original liability within the time of limitation, a promise to pay, whether ahsolute or conditional, is an admission of liability of which the debtor cannot qualify the effect ((?). The time when the acknowledgment or promise was written or signed, upon which the renewal of liability depends, may be supplied by extrinsic evidence (/). The renewal of liability for a barred debt must be absolute, and discharged of all conditions, before an action can be commenced ; it then operates as a new cause of action with the full time of limitation (g). It is generally sufficient in such action to claim the original debt, or so much of it as is renewed ; and if the statute is pleaded and issue joined upon the plea, the renewal is admissible in evidence to take the case out of the statute (h) ; or a con- ditional promise in renewal of the debt may be charged in terms as a substantive cause of action, with an averment of the satisfaction of all conditions necessary to make it SSst^'' absolute («■).— By 9 Geo. IV. c. 14 (above cited), s. 8, "no duty. memorandum or other writing made necessary by this Act shall be deemed to be an agreement within the meaning of any statute relating to the duties of stamps." Hence an instrument containing an acknowledgment or promise may be used in evidence to take a debt out of the statute without a stamp, though if used to prove the debt or for any other purpose it may bean agreement requiring a stamp (A-). But an instrument which requires a stamp as being a bill of exchange or promissory note is not available in evidence, under the above proviso, unless properly stamped {I). An (d) Fer cur. Cornforih v. Smithard, 5 H. & N. 13 ; 29 L. J. Ex. 228. (c) Per cur. Haydon y. Jl'tlliams, 1 Bing. 168. (/) Edmunds v. Doiones, 2 C. & M. 459 ; see Zoib v. Stanley, 5 Q. B. 574. iff) Waters v. Thanct, 2 Q. B. 767 ; Bateman v. Finder, 3 Q, B. 574. (A) Fer cur. Tanner v. Smart, 6 B. 6 C. 606 ; Hollis v. Falmer, 2 Bing. N, C. 713 ; SCO Ridd v. Moggridge, 2 H. & N. 567. [i) Lechmere v. Fletcher, 1 C. & M. 623; Watei's v. Thanet, supra; per cur. Haydon v. IViUiams, 7 Bing. 168; BuUen & L. Pr. PI. 4th ed. vol. 2, p. 260. {k) Morris v. Fixon, 4 A. & E. 845 [l) Jones T. Ryder, 4 M. & W. 32 Farmiter v. Farmiter, 1 J. & H. 135 30 L. J. C. 608 ; see Spickernell y. Hotham, Kay, 669. STATUTES OF LIMITATION. 857 indorsement of name and date upon a promissory note by the Chap. xi. maker was construed as a sufficient renewal, without making it a new note requiring a new stamp (m). The statute 9 Greo. IV. c. 14, s. 1, enacting, as above, that Renewal no acknowledgment by words only shall be sufficient to take contract any case out of the statute, unless made in some writing parent, signed by the party, expressly provides " that nothing herein contained shall alter, or take away, or lessen the effect of any payment of any principal, or interest, made by any person whatsoever" (w). A payment proved by an acknowledgment or admission made by words only, without any writing or signature, is within this proviso, and may take the case out of the statute (o). — The same statute, s. 3, further enacts, Indorse- " that no indorsement or memorandum of any payment payment, written or made upon any promissory note, bill of exchange, or other writing, by or on the behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of the said statute." The words " other writing" in this enactment mean the vraiting containing the contract ; leaving to other memoranda of payment the ordinary effect in evi- dence {p). — " The meaning of part payment is not the naked Meaning fact of payment of a sum of money, but payment of a p^y^nt smaller sum on account of a greater sum, which part pay- ment implies an admission of such greater sum being then due and a promise to pay it " (q) . The appropriation of the payment by the debtor to the debt or account charged may be proved by evidence distinct from the payment (r). A payment on a certain account may be sufficient, although the amount due on that account is not ascertained at the time of (m) Bourdin v. Greenwood, L. E. (p) Uradleyy. J'ames,13G.B. 822; 13 Eq. 281; 41 L. J. C. 73. See 22 L. J. C. P. 193; see post, -p. 860. Solmes T. Mackrelt, 3 C. B. N. 8. 789. (?) Per cur. Waters v. Tompkins, 2 in) Fer cur. Tarney v. Bodwell, 3 C. M. & E. 726 ; Tippets t. JEeane, 1 E. & B. 141 ; post, p. 859. C. M. & R. 252 ; Waugh t. Cope, 6 (o) Cleave v. Jones, 6 Ex. 573 ; 20 M. & W. 824. L. J. Ex. 238, overruling Willis v. (r) Waters t. Tompkins, supra ; Neviham, 3 Y. & J. 518. Baildon v. Walton, 1 Ex. 617. 858 DISCHARGE OF CONTRACTS. Past iy. the payment (s) . A payment made with the expressed inten- tion of discharging the whole deht, or with a refusal to pay more, excludes any inference of a promise {£). Payment into court in an action admits the debt to the amount paid in and no more (««). The payment of a dividend in bank- ruptcy, or under a composition with creditors, is iutended in full discharge, and has no effect in renewing the debt, or any security for it {x). A payment enforced by a judgment recovered against the debtor in invitum excludes any in- ference of a promise in renewal {y). A part payment will take a barred debt out of the statute, though the payment may be voidable on the subsequent bankruptcy of the debtor (s). Payment Payment of interest is an admission that the principal debt 01 lIlt6r6St« , -y • -I * I • 1 • was due during the time the interest paid was accruing and at the time it accrued due, and it takes the debt out of the statute from that time ; but apart from circumstances it is no admission that the debt remained due at the time of the pay- ment made {a) . In the case of a promissory note to pay a sum with interest, the interest is made part of the debt ; and an arrear of interest having been paid after it had accrued due, and the payment indorsed upon the note, which was retained by the payee, it was held sufficient to take the note out of the statute from the time of the payment (b) . A pro- missory note to pay a certain sum on demand carries no inte- rest until demand made ; but a payment of interest is evidence of a demand having been made and of interest runniag upon the note ; and therefore the payment admits the note due and takes it out of the statute (c). Where there are several (s) Walker v. Butler, 6 E. & B. (tj) Morgan y. Sowhmds, L. R. 7 506 ; 25 L. J. Q. B. 377 ; see ante, Q. B. 493 ; 41 L. J. Q. B. 187. p. 854 ; Re Eainforth, 49 L. J. 0. 5. (z) Re Lane, L. R. 23 Q. B. D. 74 ; it) Linsell v. Bonsor, 2 Bing. N. C. 58 L. J. Q. B. 373. 241 ; Waimnanv. Kynman, 1 Ex. 118; (a) Sanders v. Meredith, 3 M. & Ry. per cur. Foster v. JJawber, 6 Ex. 853. 116 ; see Beali/ v. Greemlade, 2 C. & (m) Long^. Greville, 3 B. & C. 10 ; J. 61 ; Forsyth v. Brii,towe, 8 Ex. Seid V. Dickens, 6 B. & Ad. 499 ; see 347 ; 22 L. J. Ex. 255. Order XXII. (4) Bcaly v. Greemlade, supra ; see {£) Bavies v. Fdwards, 7 Ex. 22 ; Furdon v. Furdon, 10 M. & W. 563. Fx p. Topping, 4 D. J. & S. 551 ; 34 (c) Banifield v. Tapper, 7 Ex. 27 L. J. B. 44 ; Brandram v. Wharton, see Be Fiil/ierford,Li.'R. 14 C. T>. 687 1 B. & Aid. 463. 49 L. J. C. 654 ; ante, pp. 742, 843 post, p. 947. STATUTES OF LIMITATION. 859 securities for the same debt, as a mortgage and a promissory Chap. xi. note, payment of interest prevents the statute as to all (d). A payment made expressly on account of principal only, or accompanied with a refusal to pay interest, excludes admission of liability for the latter (e). And if the principal debt is barred, the claim for interest, being accessory to the principal, is barred with it (/). The payment may be made by any agreed mode which is Trans- equivalent to money in reduction of the debt or in satisfaction equivalent of the interest, provided it is such as would support a plea menti^' of payment ( , _ i(»i fill given by statute m the case of the bankruptcy of one of the see Ex p. Barnett, L. R. 9 Ch. 293 ; 43 L. J. B. 87 ; post, p. 881. [e) Miller v. Atlee, 3 Ex. 799. See Stiimorev. Campbell, (1892) 1 Q. B. 314. (/) KinnerUy v. Hossaclc, 2 Taunt. 170. (g) Leeds v. Burritvs, 1 2 East, 1 . (/i) Ze Loir v. Bristow, 4 Camp. 134 ; Oleworth v. Fiekford, 7 M. & W. 314. (i) Jones v. St. John's Coll., L. E. 6 Q. B. 115; 40 L.J. Q. B. 80. (k) Turner T. Diaper, 2 M. & Gr. 241 ; 2 Scott, N. E. 447. {I) Young v. Kitchiii, L. E. 3 Ex. D. 127 ; 47 L. J. Ex. 579 ; Xetofound- land Gov. v. Xew/oundland By., L. E. 13 Ap. Ca. 199. (m) Dale v. SolUt, 4 Burr. 2133. («) Ber cur. Meyer v. Dresfipr, 16 C. B. N. S. 646 ; 33 L. J, C. P. 294. (o) See ante, p. 766. SET-OFF AND COUNTEKCLAIM. 869 parties, in order to obviate the hardship of the other party chap. xil. having to pay his debts in full to the estate of the bankrupt ■while receiving only a dividend upon the debts of the bank- rupt (jo). — The right of set-off applicable to debts in general was first given by the statutes 2 Greo. II. o. 22, s. 13, and 8 Geo. II. 0. 24, s. 4, which enacted that " where there are mutual debts between the plaintiff and the defendant, or 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." This enactment was practically superseded by the Judicature Acts and Orders, and finally repealed by the Statute Law Eevision Act, 1883, 46 & 47 Vict. c. 49, s. 4 ; with the saving by s. 5, of " any jurisdiction or principle or rule of law or equity established or confirmed by any enactment repealed by this Act"(9). By the Judicature Act, 1873, s. 24 (3), it is provided Set-off and generally that the Courts shall have power to grant to any claim defendant " all such relief against any plaintiff or petitioner judicature as such defendant shall have properly claimed by his pleading, ■*-°*^' and as the said Courts respectively or any judge thereof might have granted in any suit instituted for that purpose by the same defendant against the same plaintiff or petitioner." — And by Order XIX. r. 3, " A defendant in an action may set off, or set up by way of counterclaim against the claims of the plaintiff any right or claim, whether such set-off or counter- claim sound in damages or not, and such set-off or counter- claim shall have the same effect as a cross action, so as to enable the Court to pronounce a final judgment in the same action both on the original and on the cross claim." By Order XXI. r. 17, "Where in any action a set-off or counter- claim is established as a defence against the plaintiff's claim, the Court or a judge may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he (p) See Blackburn, 3., .Bailey v. {q) See SnelUiiff y. Pulling, L. E. Finch, L. R. 7 Q. B. 44 ; 41 L. J. 29 0. D. 87 ; Judicature Act, 1875, Q. B. 87. s- 21. 870 UISCHARGE OF CONTRACTS. Pabt iy. may be entitled to upon the merits of the ease." — The dis- Distinction tinction between a set-off, strictly so called under the former andcoim- statutes of set-off, and a countel'claim, is that the former ere aim. applied to mutual debts only and was pleaded by way of answer to a claim of debt ; while the latter is treated as a cross action to be decided independently of the cause of action to which it is pleaded, the costs following the respective events, subject to the discretion of the Court (r). Pleading set-off or eounter- claim. Pleading to set-off. A defendant must plead a set-off or counterclaim in order to avail himself of it in an action ; and the Court on the application of the plaintiff has a discretion to refuse permission to plead it («) . The defendant is not bound to avail himself of it in the action ; he may reserve it for a separate cross action or for a defence to a subsequent action (t) . And in an action upon a judgment the defendant may plead a set-off, which he might have pleaded in the original action (m). And a defendant may plead a set-off in an action for a debt, though he contracted to pay in ready money (x). — The subject of a set-off or counterclaim must be a debt or claim for which an action will lie ; and not a claim which is enforceable only by attachment, or by summary proceedings, or by leave of the Court (y). And the debt or claim must continue due at the time of trial (z). — The plaintiff must reply to a plea of set-off or counterclaim as if pleading to an original action («) : as ()■) GathercoU v. Smith, L. R. 7 Q. B. D. 626 ; 50 L. J. Q. B. 681 ; Stoolce T. Taylor, 5 Q. B. D. 576; 49 L. J. Q. B. 857 ; Shrapnel y. Zainff, 20 Q. B. D. 334 ; 57 L. J. Q. B. 196; see MeGowanv. Middleton, 11 Q. B. D. 464 ; 52 L. J. Q. B. 355 ; TVesta- cott V. Bevan, (1891) 1 Q. B. 774 ; 60 L. J. Q. B. 536 ; Stumore v. Camp- hell, (1892) 1 Q. B. 314. (s) Order XIX. rr. 2, 3 ; per cur. Schneider v. Batt, 8 Q. B. D. 705 ; 50 L. J. Q. B. 527 ; Gray v. Well, 21 0. D. 802; 51 L.J. C. 815. (t) Campbell, L. C, Jmner v. Morris, 3 D. P. & J. 54 ; 30 L. J. C. 363 ; eee Zainff v. Chatham, 1 Camp. 252 ; Sindley v. Haslam, L. R. 3 Q. B. T>. 481 ; Huhlard v. Goodley, L. R. 25 Q. B. D. 156. {n) Jcnncr v. Morris, supra. {x) Eland T. Karr, 1 East, 375; Cornforth v. Mirett, 2 M. & S. 510; see Clarke v. Fell, 4 B. & Ad. 407 ; JEx p. Fletcher, L. R. 6 C. D. 350 ; Lush, J., Spurr v. Carr, L. R. 5 Q. B. 659 ; 39 L. J. Q. B. 251. (y) Field v. Bezant, 5 B. & Ad. 357; Jesse], M. R., Sawley t. Rawley, L. R. 1 Q. B. D. 466; 55 L. J. Q. B. 679 ; Brett, L. J., Re Anglo-French Co., L. R. 21 C. D. 507 ; Birmingham Estates Co. v. Smith, L. R. 13 C. D. 506; 49 L. J. C. 251. (z) Bendy v. Fowell, 3 M. & "W. 442 ; Eylon v. Zittledale, 4 Ex. 159. (n) Order XIX. rr. 2, 15 ; Order XXIV. r. 1 ; 2 Bullen & L. Pr. PI. 4th ed. 319. SET-OFF AND COUNTERCLAIM. 871 that he has paid the debt (b) ; that the debt was incurred Chap. xil. during infancy (c) ; that the debt was barred by the statute of limitation (d) ; that the debt had been discharged by a bankruptcy of the plaintiff (e) ; or that after action brought defendant became bankrupt and the set-off vested in his trustee (/). — ^TJnder the Judicature Acts a defendant may set-ofE plead a set-off or counterclaim which arises after the com- ^fte^ menoement of the action ; and the plaintiff may reply defences action. to it which arise after the plea, as payment, the statute of limitation, or bankruptcy (^) . — The set-off of mutual debts Set-off and counterclaims are matters of procedure only, lex fori; procedure. and therefore a set-off according to the procedure of a foreign Court cannot be pleaded as a matter of right in an action brought in the Courts of this country {h) . A set-off can be pleaded only where the debts or claims are Parties between parties in the same right {i) . In an action for a debt due to the plaintiff solely, the defendant cannot plead a set-off of a joint debt of the plaintiff and another (j) ; but he may plead a set-off of a debt for which the plaintiff is severally liable as well as jointly with others; as a joint and several promissory note, or a joint and several bond of the plaintiff (k) . And in an action for a several debt, the de- fendant cannot plead a set-off of a debt due to him and another jointly (/) ; but if sued solely for a joint debt of (A) Miller v. Atlee, 3 Ex. 799; lam v. Mrris, 2 B. & S. 783; 31 Eyion v. Litthdale, supra. L. J. Q. B. 245. (c) Rawley v. Rawley, supra; see (i) JVeemaM v. io»««s, 9 Hare, 113; ante, p. 466. 20 L. J. C. 564 ; Jessel, M. E., (d) Chappie v. Durston, 1 C. & J. 1 ; Middleton v. Follock, L. E. 20 Eq. TVallcer Y. Clements, 15 Q. B. 1046; 34; Maedonald y. Carwgion, L. K. 4 eee ante, p. 849. C. P. D. 28 ; 48 L. J. C. P. 179. (e) See per cur. Francis v. Dods- {j) Arnold Y.Sainliriffge, 9 Es.. 153; worth, 4 G. B. 220 ; Se Smith, L. E. 23 L. J. Ex. 59 ; see Macdonald y. 22 C. D. 586 ; 52 L. J. C. 411. Jacquah Mining Co., L. E. 13 Q. B. (/) New Quebrada Co. v. Carr, D. 535 ; 53 L, J. Q. B. 376. L. E. 4 C. P. 651 ; 38 L. J. 0. P. (k) Owen y. Wilkinson, 5 C. B. 283. N. S. 526 ; 28 L. J. C. P. 3 ; Fletcher iff) Order XXIV. rr. 1—3 ; Feddall v. Dyche, 2 T. E. 32 ; see ante, p. 377. v. Maitland, L. E. 17 C. D. 174 ; 50 (I) Bowycar y. Fawson, L. E. 6 Q. L. J. C. 401 ; Toke v. Andrews, L. E. B. D. 540 ; 50 L. J. Q. B. 495 ; see 8 Q. B. D. 428 ; 51 L. J. Q. B. 281. McEioan v. Cromiie, L. E. 25 C. D. (h) Meyer v. F)resser,n& C. B. N. S. 175. 646 ; 33 L. J. 0. P. 289 ; see Macfar- 872 DISCHARGE OF CONTRACTS. Paet IV. himself and another, he may plead a set-off of a debt due to them jointly from the plaintiff (m) ; and if he contracted as surety only for the other, he may set off a debt due from the plaintiff to the co-debtor which the latter could set off in reduction of the principal debt(«). Upon the death of one of joint debtors or creditors the debt accrues to the survivor, and may then form the subject of set-off in respect of an Parties to Originally several debt of the survivor (o). — Where several daim.^"^' plaintiffs join in suing for a joint claim, or under Order XVI. r. 1 , the defendant may set up separate counterclaims against each plaintiff {p). And where in an action any person is improperly or unnecessarily joined as a co-plaintiff, the de- fendant may obtain the benefit of a set-off or counterclaim by establishing it against the other parties (§■). And a defendant may set up a " counterclaim which raises questions between himself and the plaintiff along with any other persons " who would be defendants to the counterclaim if enforced by cross action, by summoning such persons to appear and serving them with the counterclaim (r). Set-off Where a contract is made through an agent for an undis- agents. closed principal, the agent, having authority to act in his own name as principal, may be identified with the principal for the purpose of set-off ; as where an agent has been intrusted with the possession and apparent ownership of goods for the purpose of selling them in his own name, and the buyer con- tracts with him in faith of his being the real owner, in an action by the principal for the price, the buyer may set off a debt of the agent that has accrued due to him before receiving notice of the agency [s). But if the buyer had knowledge, or may be inferred to have had knowledge from having the means of knowledge, of the agency he would be precluded from asserting the set-off {t). The set-off in such cases was [m) Staclcwood v. Dunn, 3 Q. B, {p) Manchester, S.^L.Ry.x.Broolcs, 822. L. K. 2 Ex. D. 243 ; 46 L. J. Ex. («) Bechervaise v. Lewis, L. R. 7 244. C. P. 372 ; 41 L. J. C. P. 171 ; post, [q) Order XVI. r. 3. p. 876. ()■) Order XXI. rr. 11—15. (o) Slipper v. Stidstone, 5 T. E. 493 ; («) Ante, p. 426, n. {»•). French v. Andrade, 6 T. R. 582 ; see (<) Ante, p. 426, u. (s). ante, pp. 374, 376, SET-OFF AXD COUNTEECLAIM. 873 allowed by an equitable application of the statute, though Chap.xii. the debts are not strictly "mutual debts" within the words of the statute (z«). But in the case of the bankruptcy of the agent, the settlement with his trustee by taking an account of mutual credits is not admissible as against the principals). In an action by the agent, the debtor j^rimd facie cannot set off debts due from the principal, because they are not mutual debts between plaintiff and defendant {x). But if the agent is suing, wholly or partly, merely as trustee for the principal, to the extent that the latter is beneficially interested in the action, debts due from him may be set off (?/). — Partners as agents for the firm are within the same principle ; Partners. and if one of the partners is allowed by the others to deal in his own name as principal in a partnership matter, the person so dealing with him without notice that it is a partnership contract may set off a separate debt due from that partner against the claim of the firm (g) ; though, except in such cir- cumstances, a separate debt of one of the partners cannot be set off in an action by the firm (a). And an agreement with one of the partners to set off his separate debt, without the consent of the other partners, would be void as being a fraud on the partnership {b) . At common law a married woman could not sue or be sued Set-off without joining her husband as a party to the action ; and in against an action in which the husband and wife sued or were sued as and'wif^ joint parties, a set-off could not be pleaded of a debt due from or to the husband severally ; nor in an action by or against the husband alone could debts in right of the wife be set off (c). Where the husband had the option of suing in his own name, or of joining the name of his wife as claiming in her right, in the former case he admitted a plea of set-oS (m) Ante, p. 427, n. {d). (a) S'rance v. White, 6 Bing. N. C. (j;) Turnerv. Thomas, h.B,. 6 CP. 33. 610 ; 40 L. J. C. P. 271 ; see post, (b) Piercy v. Fynney, L. B. 12 Eq. p. 878. 69 ; 40 L. J. C. 404 ; ante, p. 458 ; (x) Ishery v. Bowden, 8 Ex. 852 ; see Kinnerley y. Hossack, 2 Taunt. 22 L. J. Ex. 322 ; ante, p. 428. 170. ((/) &eepost, p. 874. (c) Faynter v. Walker, Bull. N. P. (z) Gordon v. Ellis, 7 M. & G. 607 ; 179 ; Wood v. Akers, 2 Esp. 594 ; and 2 C. B. 821 ; see ante, p. 451. see ante, p. 478 ; post, p. 1065, 874 DISCHARGE OF CONTRACTS. Fajbt IV. for debts due from himself only, in the latter a plea for dehts chargeable against himself and wife ; but both classes of set-ofE could not be pleaded in the same action {d). — By the Married Women's Property Act, 1882, s. 1, a married woman is rendered capable of suing and being sued in all respects as if she were a feme sole ; and when made a sole party under this section, a debt of the husband cannot be pleaded by way of set-ojf (c) . In an action in which husband and wife were joined as co-defendants a counterclaim was permitted by them, claiming both for money due to the wife and for goods belonging to the husband (/). Set-off in equity. Trustees. The Courts of common law, in applying the statutory defence of set-off in an action, regarded legal debts only, ignoring all equitable interests {g). But the Court of Chan- cery included in the application equitable interests which might be held in legal debts ; as in the case of the trustee of a debt suing on behalf of the cestui que trust; or a creditor suing on behalf of his assignee of the debt ; or an agent suing in his own name on behalf of his principal (Ii) . — Accordingly in an action by a trustee on behalf of a cestui que trust of the debt sued for, the defendant may set o£B debts due to him from the cestui que trust (i) : as in the case of the holder of a bill suing, wholly or partly, on behalf of the drawer or indorser, debts of the latter to the defendant are available for set-off {k) ; or in the case of bills indorsed merely for the purpose of collection on behalf of the owner {I). But in an action by or against a trustee, as such, a debt in his own right cannot be made the subject of set-off (w) ; and a defendant sued in his own right cannot set off debts due to him as (cT) Surrough v. Moss, 10 B. & G. 558 ; J^ones t. Cnthbertson, L. R. 8 Q. B. 504 ; 42 L. J. Q. B. 221 ; see ante, p. 487. (e) See ante, p. 480. (/) Hodson V. Mochi, L. R. 8 C. D. 569; 47 L. J. C. 604. ((/) Isberr/ v. Bowden, 8 Ex. 852 ; 22 L. J. Ex. 322. [h] See ante, p. 872 ; post, p. 875. (i) Thornton v. Maynard, L. R. 10 C. P. 695 ; 44 L. J. C. P. 382 ; see Agra Bk. v. Leighton, L. E. 2 Ex. 56; 36 L. J. Ex. 33. (/) Thornton v. Maynard, supra. (l) Re Anglo-Greek Nai). Co., 'h.'B,. 4 Ch. 174. (m) Be Mattos v. Saunders, L. E. 7 C. P. 570 ; see TVilson v. Moore, 1 My. & K. 337; Child v. Thorley, L. R. 16 C. D. 151 ; Stumore y. Campbell, (1892) 1 Q. B. 314. SET-OFF AND COUNTERCLAIM. 873 trustee for another ; as bills whioh he holds merely as trustee Chap. xii. or agent for collection («) ; or costs upon which his solicitor has a lien (o). — In the administration of trusts, as between Set-off in trustee and cestui que trust, the latter can claim nothing out nistration of the estate until he has paid what he owes, and his debts to °^ t'^'^'^- the estate may be set off against him ; as in the case of a cestui que trust being accountable for any of the trust property or for profits received from it {p) ; and in the event of his bankruptcy the trustee in bankruptcy can claim only subject to the same set-off {q). Where a trustee holds a fund as bare trustee, so that the Court without fiu-ther inquiry would order it to be transferred to the cestui que trust, the latter may be treated generally as entitled in his own right for the purpose of set-off (r) . But the Court will not inquire into the trust and take the accounts to ascertain the rights of a cestui que trust and the amount due to him merely for the purpose of establishing a set-off (s). Upon assignment of a debt with notice to the debtor the Set-off by assignee is considered as the creditor in equity for the purpose assffn™ of set-off ; and in an action by the assignee or by the original °* '^*'^'- creditor on his behalf the defendant may set off a debt due to him from the assignee ; and upon the same principle in an action by a creditor for a debt, the defendant may set off debts due from the plaintiff to a third party which have been assigned to the defendant {t). Upon an assignment of a debt without notice to the debtor the assignee takes subject to all equities of set-off by the debtor against his creditor accruing due before notice given {u). But in an action by or on behalf of the assignee the defendant cannot set off debts of his («) Fair T. Mclver, 16 East, 130 ; 34; 41 L. J. Q. B. 83. Forster v. Wilson, 12 M. & "W". 191 ; (s) Freeman v. Lomas, 9 Hare, 113 ; Jjondan and Bombay Bk. v. Narraway, 20 L. J. C. 664 ; MidcUeton v. Follock, L. R. 15 Eq. 93 ; 42 L. J. C. 329. L. R. 20 Eq. 29 ; 44 L. J. C. 584. [o) Exp. Gleland, L. R. 2 Ch. 808 ; (t) Williams, J"., Cochrane v. Green, 36 L. J. B. 45. 9 C. B. N. S. 448 ; 30 L. J. 0. P. 97 ; [p] Selborne, L. C, Se Sarrald, Jessel, M. E,., Middleton v. Pollock, 53Ij. J.C.505; see Hallett ^ . Sallelt, supra; Clarkv.Cort, Or. & Ph. 154; L. E. 13 C. D. 232 ; 49 L. J. 0. 61. Megrath v. Gray, L. E. 9 0. P. 216 ; {q) Jones y. Mossop, 3 Hare, 568. 43 L. J. C. P. 63. \r\ Jones v. Mossop, supra ; Fx p. (u) Cavendish v. Oeaves, 24 Beav. Morier, L. E. 12 C. D. 491 ; 49 L. J. 163 ; 27 L. J. 0. 314. B. 9 ; SaiUy v. Finch, L. E. 7 Ql B. 876 DISCHARGE OF CONTRACTS. Part IV. original creditor which have accrued due after notice of the assignment, though contracted before, unless contracted with Set-off by an agreement for set-off (j"). — Upon the principle that a surety upon payment of the debt is entitled to an assignment of the securities of the creditor against the principal debtor ; the surety may plead to an action for the debt a set-ofi due from the plaintiff to the principal debtor, which the latter might plead in reduction of the debt for which the surety is liable (y) . And a surety may claim to have such assignment of securities upon payment of the principal debt with set-off of money due to himself from the creditor, upon the faith of which the suretyship was given (z). Set-off by Upon the principle of mutuality in debts and claims for executors the purpose of set-off, " if either party sue or be sued as nistrators! exeoutor Or administrator, where there are mutual debts between the testator or intestate and either party, one debt may be set against the other " ; as enacted in terms by the statutes of set-off, lately repealed (a) . But if either party sues or is sued as executor or administrator, debts due from or to him in his own right cannot be set off ; and if either party sues or is sued in his own right debts due from or to him as exeoutor or administrator cannot be set off (b). Under the same statutes of set-off it was held that in an action by an executor or administiator for a debt accrued due to him as such, after the death of the testator or intestate, the defendant cannot set off a debt due to him from the testator or intestate in his lifetime (c) ; and that in an action by an executor or administrator] for a debt due to the deceased in his lifetime, {x) Watson -v. Mid-Wales Sy.,'L.'R. (z) Sx p. Stephens, 11 Ves. 24; 2 C. P. 593 ; 36 L. J. C. P. 285 ; rulliaim/ v. iVcJfe, 3Mer. 621 ; £x p. Ee Milan Trams. Co., L. K. 25 C. D. £arrett,'3i L. J. C. 41. 587 ; 53 L. J. C. 1008 ; see Younp v. (a) See ante, p. 869. Kitchin,!, R. 3 Ex. D. 127; 47 L.J. (*) Willes, C. J., Sutchinson v. Ex. 579 ; Bee Zee and Chapman's ca^e, Sturges, Willes, 263; Bishop v L. R. 30 C. D. 216 ; 54 L. J. C. 460. Church, 3 Atk. 691. (y) Hechcrcaise V. Lewis, If. TR,. 1 G. {e) Shipiuan v. Thompson, Willes, P. 372; 41 L. J. C. P. 171; ante, 103; Tegetmciier v. Liimley, "Willes, p. 872 ; see Murphy v. Glass, L. E. 2 264, ii. ; Schofield v. Corbett, 11 Q. B. P. C. 408 ; and see ante, p. 384. 779 ; Sees v. Watts, 11 Ex. 410 ; 25 L. J. Ex. 30. SET-OFP ANB COUNTERCLAIM. 877 tte defendant cannot set off a debt accrued due after his Chap.xii. death, as a bill or note of the testator or intestate which did not become payable until after his death (rf) ; and that in an action against an executor for a debt due from the testator, he cannot set off a debt which accrued due to him as executor after the death of the testator {e), But in an action against an executor upon an account stated by him " as executor " since the death of his testator, a plea of set-off of a debt due from the plaintiS to the testator was held good, because such account was presumptively to be taken as stated respecting debts of the testator (/). — By Order XVIII. r. 5, " Claims Joinder of by or against an executor or administrator as such may be or against joined with claims by or against him personally, provided ^^^"^ °^' the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator "(. 190 ; Ey., IH. &N. 408; 26L. J. Ex. 20; 60 L. J. Q. B. 214. EmlUn V. Myers, 6 H. & N. 54 ; 30 {g) Eobba v. London ^ S. W. Ry., L. J. Ex. 71 ; see Merest v. Harvey, L. K. 10 Q. B. Ill ; 44 L. J. Q. B. 5 Taunt. 442. 49. [d) Fer cur. Hamlin y. Great Northern (h) Phillips v. London S; S. W. Ry., By., supra ; Smith v. Woodfine, 1 0. L. B. 5 Q. B. D. 78 ; 5 C. P. D. 280 ; B. N. S. 660. 49 L. J. Q. B. 233. («) Per cur. Frost v. Knight, L. B. (J) Manners v. Johnson, L. E. 1 C. ■7 Ex. 116 ; 41 L. J. Ex. 81. D. 673 ; 45 L. J. 0. 404 ; see Bue- (/) Pern/ v. L>a Costa. L. B. 1 C. cleucA v. Metrop. Bd., L. B. 5 H. L. P. 331 ; 35'L. J. 0. P. 191 ; Milling- 418 ; 41 L. J. Ex. 137. 904 DAMAGES. Paut V. Assessment of damages conclusive. Damages for new cause of action. but not for prospective future breaches or continuance of breaches (k). In an action for the breach of a contract to procure for the plaintiff a certain office, it was held that the full value of the office was chargeable, though it was subject to periodical renewal, by reason of the ordinary probability of continuance (/). And in an action for wrongful dismissal from service, the damages are not restricted by the stipulated notice for determining the service, but may include a probable loss in not getting another service (m) . Where a commercial traveller was engaged to serve for three years at a commission upon the orders for goods obtained by him, he was held entitled to claim compensation for the loss of commission by the abandonment of the business (n). But where an agent for an insurance company was engaged for five years at a fixed salary, with a commission upon the profits of the com- pany, upon the winding-up of the company he was held entitled to prove for the salary during the remainder of the term ; but not for commission, because the engagement left the company free as to the extent of their business (o) . Hence the damages finally assessed in an action are con- clusive as to the amount, and no loss subsequently arising from the same cause can be claimed in another action ; the amount assessed is presumed in law to be a complete compensation for all the consequences of the wrong (p). And if an action is barred by lapse of time, or by an accord and satisfaction, or by other form of discharge, all claim for damages subsequently arising from the same cause, though not then discovered or discoverable, is also barred (q) . — But damages cannot be assessed in respect of any matter which {i) Sodsoll V. Stallebrnss, 11 A. & E. 301 ; see Lloyd v. JJiniDicick, L. R. 7 C. D. 398 ; 47 L. J. C. 398 ; The Queen v. Soulier; L. R. 20 Q. B. D. 132. {I) Richardson v. Mel/ish, 2 Bing. 229. ()tt) Maw V. Jones, L. R. 25 Q. B. D. 107 ; 59 L. J. Q. B. 542. (n) Ee Patent Floor Cloth Co., 41 L. J. C. 476 ; Turner v. Goldnniiih, (1891) 1 Q. B. 644 ; 60 L. J. Q. B. 247. (o) Ex p. Machire, L. E. 5 Ch. 737 ; 39 L. J. C. 685 ; Rhodes v. Forioard, L. R. 1 Ap. C. 256 ; see Samlyn v. IJ'ood, (1891) 2 Q. B. 488 ; 60 L. J. Q. B. 734. (p) Brett, J., Gibbs v. Cruikshank, L. R. 8 C. P. 463 ; 42 L. J. C. P. 273 ; and see ante, p. 811. (y) Ante, p. 846 ; see Bonomi v. Rackhouse, 9 H. L. C. 503 ; Kicklin V. Williams, 10 Ex. 259 ; 23 L. J. Ex. 335. PRINCIPLES OF THE LAW OF DAMAGES. 905 would give a new cause of action ; as in the ease of a con- Chap. i. tinning breach of a covenant to keep premises in repair, or '~^ for quiet enjoyment, no damage can be given in respect of the probable continuance of the breach ; but the damage for a continued breach must be sought in a new action, to which the judgment recovered in a former action, including damages for the breach up to the time of that action only, would be no bar (r). The party claiming for a breach of contract may charge as Damages damages the cost of making good the breach in a reasonable "u maSng manner at his own expense ; " the principle is, that if the ^°°^ *^ party does not perform his contract the other may do so for him as near as may be, and charge him for the expense in- curred in so doing" (n). Where a railway company fails to carry a passenger to his destination, he may incur reasonable expense in travelling there by another mode of conveyance, and charge the amount to the company as damages ; and if he does not avail himself of such means, he can only recover the pecuniary loss in fact sustained (t). In the case of a person travelling for amusement missing a train by default of the company, and taking a special train when there was an ordi- nary train starting in an hour, the expense was held to be unreasonable and not chargeable as damages {ii). Where a bant, having issued letters of credit to a merchant abroad, failed to accept his drafts, it was held that he might arrange with another house to meet the bills and charge the former with the commission and expenses as damages («). So where the seller has failed to deliver goods under a contract of sale, the buyer may supply himself with the goods at the market price and charge the seller with the difference ; or if such goods cannot be obtained, he may purchase the best substitute, M Coward v. Gregory, L. E. 2 C. (t) Samlin v. Great Northern Ry., P. 1.53 ; 36 L. J. C. P. 1 ; Ohild v. 1 H. & N. 408 ; 26 L. J. Ex. 20 ; Stenning, L. K. 11 C. D. 82 ; 48 L. ante, p. 900. J. C. 392 ; see ante, p. 845. (m) Leblanche v. London ^ N. W. (s) Mellish, L. J., Leblanche v. My., supra. London & N. W. Ey., L, R. 1 0. P. (x) Prehn r. Royal Bank of Liver- D. 313 ; 45 L. J. C. P. 521. pool, L. R. 5 Ex. 92 ; 39 L. J. Ex. 41. 906 DAMAGES. Paet V. Duty of plaintiff to mitigate damages. Evidence of defen- dant in mitigation. within reasonable limits {y). And where a carrier has failed to deliver goods within a reasonable time, the owner may buy other goods in substitution tor his reasonable use, and charge the carrier with the cost; who is not protected by the Carriers Act from such consequences of the delay, though the goods are of a kind within the Act (s) . A party to a contract is bound to take all reasonable means of mitigating the damages consequent upon a breach by the other party ; so far that he cannot recover any part of the damage which is due to his neglect of such means («). In an action for wrongful dismissal from service, the damages, though presumptively the amount of wages for the period of engagement, may be reduced by the value of other service which the plaintiff could obtain (J). Upon this principle in an action for not accepting goods sold, the seller cannot recover the full price as damages, but only the difference between that and the price for which he could sell them to another person ; and in an action for not delivering goods sold, the buyer can only recover the difference between the contract price and the price at which he could buy them (c). So where the master of a chartered ship, after refusal by the charterer to provide a cargo, remained in port until the time for loading had expired, it was held that the claim for full damages for freight and expenses might be reduced by the loss due to his neglect to procure another cargo id). The defendant may give evidence of any matter which goes in mitigation of damages (e) ; except that he cannot give evidence of any matter which would be a defence to the action, unless it is properly pleaded ; as payment, or set-off, or any matter that would be the subject of a cross action or counterclaim. In an action for wrongful dismissal from («/) Hinde v. Lidddl, L. R. 10 Q. B. 265 ; 44 L. J. Q. B. 105. (z) Millen v. Brash, L. R. 8 Q. B. D. 35 ; 51 L. J. Q. B. 166. (a) James, L. J., Dunkirk Coll. v. Lever, L. R. 9 C. D. 25. (5) Per cur. Elderton v. Emmcns, 6 C. B. 187 ; Erie, J., Goodman v. Pooock, 15 Q. B. 583 ; Seid v. Ex- plosives Co., L. R. 19 Q. B. D. 264 ; 56 L. J. Q. B. 388. (c) See post, p. 912. {d) tnison v. Eicks, 26 L. J. Ex. 242. (e) Featherstone v. TTilkinson, L. E. 8 Ex. 122 ; 42 L. J. Ex. 78 ; White- man T. Hawkins, L. R. 4 0. P. D. 13. PRINCIPLES OF THE LAW OF DAMAGES. 907 service, to which payment into Court only is pleaded and Chap. i. Sect I the only question is the amount of damages, the defendant cannot give evidence of misconduct, v^hich is a justification of the dismissal (e) ; hut he may prove in mitigation of damages that he continued to employ the plaintiff after the dismissal upon the same terms as hefore (/). So a claim for freight on a charterparty or bill of lading cannot he reduced by a claim for loss or injury of the goods carried, or for delay in carrying them ; which are matters for a distinct action or counterclaim ((/). In an action for the price of goods sold with a warranty of quality, evidence of a breach of the war- ranty may be given in reduction of the price only so far as such evidence is material to show a diminution in the value of the goods (Ji). So in an action for the price of goods sold by sample or description or value, or for work and labour of a specified kind, it may be shown in reduction of the agreed price, that the subject of the contract was diminished in value by reason of a breach or insufficient performance of the con- tract by the claimant ; but evidence of damage caused by a breach of contract or warranty which does not qualify the value of the subject is not admissible ; and such damage must be sought in a distinct claim {i). — The defendant cannot claim Accidental to reduce the damages on account of an accidental benefit ^^ '^'^ '°''' accruing to the plaintiff, independently of the contract ; as in an action for delay in discharging a ship of the plaintiff, whereby he lost the passengers whom he had contracted to carry, it was held that the damages could not be reduced by reason of the same persons taking passages in another ship of the plaintiff (/i;). Upon a similar principle in an action for (e) Speck v. Phillips, 5 M. & "W. 259 ; I>icleen v. Neale, 1 M. & W. 279. 556. (/) Reid T. Explosives Co., L. E. (i) Allen v. Cameron, 1 0. & M. 19 Q. B. D. 264 ; 56 L. J. Q. B. 832 ; Mondel v. Steel, 8 M. & W. 388. 868 ; see Siffge v. Burbidge, 15 M. & (a) Seeger v. Duthie, 8 C. B. N. S. W. 598 ; Davis v. Sedges, L. E. 6 45 ; Meyer t.' Dresser, 16 C. B. N. S. Q. B. 687 ; 40 L. J. Q. B. 276 ; 646 ■ 33 L. J. C. P. 289 ; see Dakin Young t. Kitchin, L. E. 3 Ex. D. V. Oxleg, 15 C. B. N. S. 646 ; 33 L. 127 ; 47 L. J. Ex. 579 ; Wayne's Iron J. 0. 115. Co. V. More-wood, 46 L. J. Q. B. 746. (A) Street v. Bitty, 2 B. & Ad. {k) Jebsenr. East India Docks,'L.'B,. 456 ; Foulton v. Lattimore, 9 B. & 0. 10 0. P. 300 ; 44 L. J. C. P. 181. 908 DAMAGES. Pakt V. breacli of covenant to deliver up demised premises in repair at the end of the term, the measure of damages is the cost of putting the premises into the state of repair in which they ought to have been left ; and the damages cannot be reduced on the ground that in consequence of changes in the property the repairs would be useless ; or that the plaintiff after the expiration of the lease pulled down the premises (l) ; or that the plaintiff had granted a new lease to a third party from the end of the term in which the lessee covenanted to pull down and alter the premises (»?). In an action upon an undertaking to pay a person's debts, it was held that the damages were the full amount of the debts, though the debtor afterwards became bankrupt ; and that the trustee in bank- ruptcy was entitled to the same damages (n). In a joint action for damages a mitigation of the several loss of one of the plaintiffs is not available to the defendant in reduction of the joint damages (o). Nominal damages. In an action for breach of contract, if the plaintiff proves the breach but fails to prove any appreciable damage in fact, he is entitled to judgment for damages in law, which as they exist only in name and not in amount are called nominal, but sxe prima facie sufficient to carry the costs of suit {p) : — as in an action against a banker, who having funds in his hands for the purpose refuses to cash a customer's cheque, substantial damages being given only if the refusal is in fact injurious to the customer's credit {q) ; in an action against a solicitor for negligence in conducting the business of a client (r) ; in an action for breach of a contract to procure (l) Morgan v. Hardy, L. E. 17 Q. B. D. 780 ; Rawlings v. Morgan, 18 C. B. N. S. 776; 34 L. J. C. P. 185; Colley V. Strceton, 2 B. & C. 273. (m) Joiner v. Weeks, (1891) 2 Q. B. 31 ; 60 L. J. Q. B. 610. [n) A-ihdomn v. Ingamells, L. R. 6 Ex. D. 286; 50 L. J. Ex. 109. (o) Jebsen v. East India Docks, supra. (p) Maiile, J., JSeaiimont v. Great- head, 2 C. B. 499 ; see Feize v. Thompson, 1 Taunt. 121 ; Warre t. Calrert, 7 A. & E. 143 ; Sowdon v. Mills, 30 L. J. Q. B. 175; Lane v. Bill, 18 Q. B. 252 ; 21 L. J. Q. B. 318. See ante, p. 763. (r?) Marzelti v. JTilliams, 1 B. cS: Ad. 415 ; Rolin v. Steward, 14 C. B. 596 ; 23 L. J. C. P. 148. ()■) Oodefroy v. Jay, 7 Bing. 413 ; see Whiteman v. Hawkins, L. K. 4 C. p. D. 13. PRINCIPLES OF THE LAW OF DAMAGES. 909 a person to sign a guarantee, where it appeared that the CaAP.i. guarantee if signed would be of no value (s) ; in an action for not signing bills of lading according to a charterparty, the master having been willing to deliver the cargo on pay- ment of freight, and no damage proved {f) ; in an action for breach of a covenant to pay the premiums of a life insurance as security for a debt, the debt and interest having been paid since the breach {ii) ; and in an action upon a similar covenant which further provided that if the debtor failed to pay the premiums the creditor might pay them and add the amount to the debt secured, it was held that express pro- vision having been made for non-payment, the damages were nominal (x). But a plaintiif though entitled only to nominal damages on his own account may recover substantial damages as trustee for another who is beneficially interested in the cause of auction («/). And an injunction may be granted to restrain a breach of contract, though the pecuniary damages would be nominal; the reason for granting an injunction being that damages are an inadequate or inappropriate remedy (s). In an action for the non-payment of a debt or liquidated Detention demand in money the measure of damages is the sum due, together with interest if any is payable ; and nominal damages only can be claimed for the detention of the money beyond the day of payment, because the special consequences to the creditor from want of money are not vsdthin the contemplation of the parties (a). If the creditor accepts payment of the debt he cannot afterwards commence an action for nominal damages for the detention ; but if he accepts payment after commencing an action, he is entitled to continue ' the action (s) Bushell V. Beavan, 1 Bing. N. C. Ex. 299 ; 22 L. J. Ex. 209. 103. (z) Tipping v. Mekersley, 2 K. & J. (t) Jones V. Sough, L. E. 5 Ex, D. 264 ; Manners v. Johnson, L. E,. 1 115; 49 L. J. C. P. 211. C. D. 673; 45 L. J. C, 404; see (m) National Ass. v. Best, 2 H. & post, p. 960. N. 605 ; 27 L. J. Ex. 19. {«) Per cur. Graham v. Campbell, (x) Browne v. Prtce, 4 C. B. N. S. L. K. 7 C. D. 494 ; 47 L. J. C. 693 ; 698 ; 27 L. J. 0. P. 290. Jessel, M. E., WalUs v. Smith, L. R. («/) See West y. Sovghton, L. E. 4 21 0. D. 267 ; 52 L. J. C. 148. C. P. D. 197; Robertson v. Wait, 3 910 DAMAGES. Part V. for the detention in order to obtain judgment and the costs of suit ; unless such payment was accepted in satisfaction and discharge of his entire claim, including costs of suit {b). The same rule is applied to the dishonour of a bill of exchange by the acceptor, which creates a mere money debt for the amount of the bill and interest (c) ; but the drawer of a bill under a letter of credit from a bank, upon dishonour of the biU, is entitled to replace the credit by drawing on another bank and charge the former with the commission and expenses as damages ((i). In local Courts in which the jurisdiction is limited to a fixed amount, the damages for detention of a debt of exactly that amount, being nominal, do not enlarge Detention the claim beyond the limit of the jurisdiction (e). — A debt or liquidated money demand differs in this respect from a claim for the detention of goods ; the wrongful detention of goods may entitle the owner to substantial damages, and a sub- sequent delivery of the goods operates in mitigation of the damages only to the value of the goods ; but the claim for damages for the original taking and the detention stiU remains (/). {b) Beaumont v. Greathead, 2 C. B. 41 ; ante, p. 905 ; see Lariosv. Surety, 494 ; see ante, p. 763. L. R. 6 P. C. 346. (c) See Se Gillespie, L. E. 18 Q. B. (e) Joule v. Taylor, 7 Ex. 58. D. 280 ; 66 L. J. Q. B. 74 ; Me Com- (/) Moonv. Raphael, 2 Biog. N. C. mercial Bank, L. E,. 36 0. D. 522 ; 57 310 ; Grijiths y. Owen, 13 M. & W. L. J. C. 131. 58 ; see Bryant v. Berbert, L. R. 3 [d] Prekn v. Soyal Bank of Liver- C. P. D. 389 ; 47 L. J. C. P. 670. pool, L. R. 5 Ex. 92; 39 L. J. Ex. And see ^os<, p. 915. 911 Sect. II.— APPLICATION TO CONTRACTS. PAGE Damages in action against buyer for goods sold and delivered — for not accepting goods sold — against seller for not delivering goods sold — measure of damages by- market price 911 Damages in action for sale of specific chattel — for special use of chattel — where the property has passed by the sale 915 Damages for breach of warranty of specific chattel — of goods sold by description and quality 918 Damages in action against carrier — special damages con- templated in contract — delay of passenger 920 Damages in action against purchaser of land — against vendor — damages for loss of bargain 923 Covenants for title — against incumbrances — for quiet en- joyment—for repair — against assignment 926 Damages for costs of action — indemnities against costs — indemnity by agent against want of authority 929 The general rules and principles above stated may be further explained and illustrated in the application of them to some contracts of frequent occurrence. In an action against the buyer for goods sold and delivered Damages the sum recoverable is the price fixed in the contract ; and if for goods there is no price fixed, the value of the goods at the time of ^g'li.fer^a delivery ; discount upon the fixed price may be allowed by the contract or by usage of trade {a). The damages for detaining the money due, unless interest is recoverable, are nominal (b). If payment is to be made by a bill and no bill is given, the damages are the value of a bill in the terms stipulated for (c) ; and if the action is brought after the biU would have become due, interest is chargeable upon the amount as if the biU had been given (d). The buyer may (a) See lie Cumberland, L. K. 3 Faiil v. Dod, 2 C. B. 800 ; see ante, C. D. 803 ; 45 L. J. B. 135. pp. 551, 768. (S) See ante, p. 908 ; post, p. 945 ; {d) Marshall v. Foole, 13 East, 98 ; Willes, J., Fletcher v Tayleiir, 17 Farr v. TFard, 3 M. & W. 26 ; Ilavis C. B. 21 ; 25 L. J. C. P. 66. v. Smyth, 8 M. & W. 399 ; post, p. (c) Mnssen v. Price, 4 East, 147 ; 947. 912 PAMAGES. Pakt V. Damages for not accepting goods sold. Damages for not delivering goods sold. reduce the claim for the price by proving a diminution in value caused by a breach of warranty or other breach of the contract by the seller which directly affects the goods (e). — In an action against the buyer for not accepting the goods sold the measure of damages is the difference between the contract price and the market price of similar goods at the time appointed for acceptance (/) ; or if the goods are to be accepted in instalments at several times, the damages are the sum of the differences at those times {g). The price obtained upon a resale within a reasonable time is presumptive evi- dence of the market price (A) ; but not the price obtained after a delay during which the price may have materially altered (a). If no evidence is given of any loss upon the market price, the damages as regards the value of the goods are nominal (It). Upon the same principle in an action against the seller for not delivering the goods ; the measure of damages, the price remaining unpaid, is the difference between the contract price and the market value at the time appointed for delivery [l). If the delivery is to be made in instalments, the measure of damages is the sum of the differences of the market value at the several times of dehvery ; and the damages in such cases are to be thus calculated, though the action is brought upon a complete breach before the times for delivery have all elapsed {m) . The full market value is to be taken, though the goods have become enhanced in value since the sale by the discovery of a special quality in them which was before unknown («). The buyer cannot claim damages for the loss U) See ante, p. 907, n. (»). (/) Per cur. Barrow v. Arnaud, 8 Q. B. 609 ; Boorman v. Nash, 9 B. & C. 145. (g) Brown v. Muller, L. E. 7 Ex. 319; 41L. J. Ex. 214. (/() Simons-v. Patchett, supra ; Stew- art V. Cauty, 8 M. & W. 160 ; Potty. Flather, 16 L. J. Q. B. 366. (i) Waddcll v. Bhckei/, L. R. 9 Q. B. D. 678 ; 48 L. J. Q. B. 617 ; see Loder v. Kekidi, 3 0. B. N. S. 128 ; 27 L. J. 0. P. 27. {k) Talpij Y. Oakeley, 16 Q. B. 941 ; 20 L. J. Q. B. 380 ; Xiehol v. Best- wick, 28 L. J. Ex. 4 ; see post, p. 913. {I) Oainsford v. Carroll, 2 B. & C. 624 ; Startup v. Cortazzi, 2 C. IT. & R. 165; mUiamsv. Reynolds, 6 B. & S. 495 ; 34 L. J. Q. B. 221. (m) Josling v. Irvine, 6 H. & N. 51 2 ; 30 L. J. Ex. 78 ; Roper v. John- son,- Tu. R. 8 0. P. 167; 42 L. J. C. P. 65. [n) Josling v. Irvine, 6 H. & N. 512; 30 L. J. Ex. 78. APPLICATION TO CONTRACTS. 913 of profit on a resale of the goods at a price higher than the ^^s^^-^' market price ; unless the seller had such notice of the intended '- — resale as to make him liahle for the risk (o). If there is no difference between the contract price and the market price, the damages as to the value of the goods presumptively are only nominal (p). 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 during the currency of the bill is pay- ment ; but if the bill is subsequently dishonoured, the buyer is in the same position as if no payment had been made, and can recover only the difference between the contract price and the market value ; and if the payment of the price was a condition precedent to the delivery, the seller is excused alto- gether by non-payment (q) . The buyer is not entitled to claim greater damages by reason of his having paid an in- creased price for the goods in special consideration for their delivery by a certain day (r). — If the buyer in fact forbears Forbear- the delivery at the request of the seller, though without delivery, binding himself to do so, the damages will be regulated by the state of the market when he withdraws the forbearance and claims the delivery, and he will have the benefit of a rise in the market at that time (s). And if the seller forbear delivery at the request of the buyer, he will be entitled to the benefit of the state of the market at the time of the buyer's ultimate refusal to accept (i). If the buyer forbear claiming dehvery for his own convenience and not at the request ' of the seller, the mere forbearance in fact does not entitle him to claim the benefit of a rise in the market after the appointed time (i<). But neither buyer nor seller can (o) Williams v. Reynolds, supra; (s) Ogk v. Vane, L. R. 3 Q. B. Tholv. Senderson, L. E. 8 Q. B. D. 272; 37 L. J. Q. B. 77; ante, p. 457 ; post, p. 915. 691. (») See ante, pp. 908, 912. {t) Eiokman v. Eayms, L. E. 10 (q) See ante, p. 768 ; Yalpy Y. C. P. 598 ; 44 L. J. C. P. 358. Oakeley, 16 Q. B. 941 ; 20 L. J. Q. B. («) Re Voss, L. E. 16 Eq. 165 ; see 380; Griffiths v. Ferry, 1 E. & E. Tyers v. Rosedale Iron Co., L. E. 10 680 ; 28 L. J. Q. B. 204. Ex. 195 ; 44 L. J. Ex. 130 ; " (r) See ante, p. 899. t. Downing, L. E. 1 0. P. D. 220 ; 45 L. J. C. P. 695 ; see ante, p, 691. L. 3 N 914 DAMAGES, Pabt V. Sale of stock. where no market price. prevent the damages accruing from a fall or rise in the market price by merely giving notice to the other that he does not intend to accept or deliver the goods when the appointed time comes ; unless the other party accepts such notice as an immediate breach of the contract («) . — The above rules apply in an action for not delivering stock and shares under con- tracts, where a market is available for replacing them {y). The measure of damages is the price of the stock at the time contracted for delivery, with interest for subsequent delay ; and special damage cannot be claimed for a subsequent rise in price, though the stock was bought for resale in such event (s) . Where stock is lent upon a bond or covenant to replace the stock on a certain day, the time for replacing the stock is considered as enlarged by the consent of both parties so long as the loan continues, in analogy with the covenant for repayment in a mortgage (a) . The measure of damages by the market price is available only where there is a market for the goods bought or sold to which buyer or seller can resort. " Where, from the nature of the article, there is no market in which it can be obtained, this rule is not applicable; but it would be unjust, if, in such cases, the damage must be nominal ; and there are several decisions showing that such is not the law " {b). Where the buyer was unable to procure goods of precisely the same kind, and was obliged in order to meet his own contracts to buy the nearest substitute he could get, which was of a superior quality and price, it was held that he was entitled to charge that price as damages (c). And where goods of a similar quality were not procurable in the market, the price at which the buyer had contracted to resell the goods in the ordinary course of business was held to be presumptively (x) See ante, p. 751. [y) V/iaiv V. Holland, 15 M. & "W. 136 ; Tempest v. Kilncr, 3 0. B. 253 ; Coelcerell v. Van Siemen's Co., 18 C. B. 454 ; see Me Government Fire Ins., L. R. 14 C. U. 634; 49 L. J. C. 452, (::) ■'Simmons v. London J. S. BanJi, (18'J1) 1 Ch. 284 ; 60 L, J, 0, 313. ('.') Shepherd v. Johnson, 2 East, 211 ; per cur, Gainsford v. Carroll, 2 B. & C, 625 ; Oa-cn t. South, 14 C. B. 327 ; 23 L. .T. C. P. 105 ; Myth v. Carpenter, L. E. 2 Eq. 501 : 35 L. J. C. 823. (5) Ter cur. Blbinger Gesellsehaft t. Armstrong, L, R. 9 Q. B. 476 ; 43 L. J. Q. B. 211. (c) Sindc V. Liddell, L. R. 10 Q. B. 265 ; 44 L. J. Q. B. 105 ; Mllkn v. Brash, L. R. 8 Q. B. D. 35 ; 51 L. J. Q. B. 166; ante, p. 905. APPLICATION TO CONTRACTS. 915 the value (d) ; tut the profits or losses on a resale, as such, Chap. i. cannot be charged as damages, unless the seller had notice '- — ^ that the goods were bought for that purpose, and only so far as the terms of the resale were brought to his notice (e). Where a contract was made with the manufacturer for the supply of goods which were not to be procured in the market, and which he knew to be intended for shipment and sale abroad ; and he failed to deliver any at the time con- tracted for, and delivered a portion only after delay ; it was held that damages were recoverable for the profit of a resale to a foreign buyer, and for the extra freight and insurance upon the part delivered consequent upon the delay (/). In an action for a breach of contract in not delivering a Damages specific chattel, the damages are measured by the cost of pro- deiivermg curing another, if reasonably possible ; and if it cannot be ^E®^? procured, or until it can be procured, the damages are measured by the average profit made by the ordinary use of such article (g) . The contracts made by the buyer in the course of business for the use of the article when delivered though not specifically chargeable as damages, are evidence of the ordinary profits for which the seller is chargeable (/«). In the case of a contract to build or to repair a ship by a certain day, the damages for delay in delivering the ship are the ordinary profits of employing the ship during the time ; and where the builder knew that the ship was in- tended for a certain voyage, the damages were measured by the difference between the contract freight for that voyage and the reduced freight for the same voyage at the time of delivering the ship (*). The same rule applies where the ship {d) France v. Oaudet, L. R. 6 Q. B. 21 ; 25 L. J. 0. P. 65 ; see Cort/ y. 199 ■ 40 L. J. Q. B. 121. Thames Ironworks, L. K. 3 Q. B. (e) Thai v. Smderson, L. B. 8 Q. 181 ; 37 L. J. Q. B. 68. B. D. 457 ; Elbinger Gesellschaft v. (A) Waters v. Towers, 8 Ex. 401 ; Armstrong , supra ; Grebert-BorgnisY. 22 L. J. Ex. 186; France v. Qaudet, Nugent, L. E,. 15 Q. B. D. 85 ; 54 L. R. 6 Q. B. D. 199 ; 40 L. J. Q. B. L. J. Q. B. 511. 121. (f) Barries y. Sutchinson, 18 C. B. (J) Fletcher v. Tayleur, supra; Re N S 445 ; 34 L. J. C. P. 169. Trent and Sumher Co., L. R. 4 Ch. (?) Fletcher v. TayUur, 17 0. B. 112; 38 L. J. 0. 38. 3 x 2 916 DAMAGES. Paet V. Defective chattel. Damages for special use of chattel. after delivery is delayed by defects ia the repairs contracted for {k). In the case of a contract to supply a threshing machine to be ready for harvest, the contractor was held liable for the loss caused by want of the machine, in the crops being exposed to the weather and in the cost of storing the crops instead of threshing out (1). — Where the subject of contract is intended for a certain use known to the seller, and vsdth reference to which it is supplied, the damages include the loss caused by its failing to satisfy the required use : as the loss of an anchor caused by a defective ship's cable {m). Upon this principle a gas company who supplied a defective pipe under a contract to supply the plaintiff with gas was held liable for the damages caused by an explosion of escaped gas ; and though the gas was set on fire by the negligence of a third party (»). And a carriage builder who supplied a pole for a carriage which was not reasonably fit for the pur- pose, was held liable for the damage done to the horses by the breaking of the pole (o). — But the contractor is not Hable to the loss due to a special use for which the article was in- tended, of which he was ignorant or with reference to which he did not contract : as where the article was required for the repair of a machine, of which he was not aware, it was held that he was liable for the cost of replacing the article, but not for the damages which the owner had to pay under a contract with a third party for the use of the machine {p). Where the defendant contracted to make part of a new in- vention by a certain date, which he knew the plaintiff was under contract to complete by that date, he was held liable for the loss of profits of the plaintiff's contract, and for the expense incurred by him upon the invention which was ren- dered useless by the delay {q). The contractor remains liable for damages measured by the ordinary use of an article which he fails to supply, though the buyer does not intend it for {k) Wilson V. Screw Coll. Co., 47 L. J. Q. B. 239. (I) Smeed v. Foord, 1 E. & B. 602 ; 28 L. J. Q. B. 178. (m) Borradaile v. Brunton, 8 Taunt. 535. («) Burrows t. Mnrch Gas Co., L. R. 7 Ex. 96 ; 39 L. J. Ex. 33. (o) Mandall v. Newf^on, L. E. 2 Q. B. D. 102 ; 46 L. J. Q. B. 259. (p) rorliiian v. Middleton, i C. B. N. S. 322; 27 L. J. C. P. 231. (}) Hydraulic Co. t. McSaffie, L, K. 4 Q. B. D. 670. APPLICATION TO CONTEACTS. 917 ordinary use, but only for a special use for which the con- Chap. i. tractor is not responsible {r). '- — - " The sale of a specific chattel on credit, though that credit Damages may be limited to a definite period, transfers the property in perty haa the goods to the vendee, giving the vendor a right of action the ^n-^ for the price, and a lien upon the goods, if they remain in his *''^°*- possession till that price be paid ; but default of payment does not rescind the contract " (s) . If the seller resumes the property to himself, as by reselling to another, before or after the expiration of the credit, the buyer has an action for the wrongful conversion ; in which the damages are, not the full value of the goods, but the value less the unpaid price, the same as ia an action for non-delivery ; for the plaintiff cannot by merely changing the form of action vary the amount of damages {i) . It is no defence to an action for the price that after the delivery of the goods under the contract the seller wrongfully retook possession («). But in such case the buyer may charge the seller with the trespass or wrongful con- version, and recover the full value without any deduction for the unpaid price {x). And he may also recover full value for the goods in an action for wrongful conversion against a third party, though he has not paid the price to the seller (y). — By Specific the MercantHe Law Amendment Act, 1856, 19 & 20 Vict, goodssold. c. 97, s. 2, it is enacted that " in actions for breach of con- tract to deliver specific goods for a price in money, the Court or any judge thereof, on the application of the plaintiff, shall have power to order execution to issue for the delivery, on payment of such sum, if any, as shall have been found to be payable for the delivery thereof, of the said goods, without giviug the defendant the option of retaining the same upon paying the damages assessed" (z). The Court has a similar (r) Oory v. Thames Ironworks, Xi. E. (x) Gillard v. Brittan, 8 M. & W. 3 Q. B. 181 ; 37 L. J. Q. B. 68. 575. Is) Per cur. Martindale v. Smith, 1 . (y) Turner v. Sardeasile, 11 C. B. Q. B. 395. N. S. 683; 31 L. J. C. P. 193; U) Chinery v. Viall, 5 H. & N. Johnson v. Lancash. Sj Yorksh. Ry., 288 ; 29 L. J. Ex. 180. L. E. 3 C. P. D. 499. (m) Stephens v. Wilkinson, 2 B. & (z) See post, p. 966. Ad. 320. 918 DAMAGES. Pabt V. power to order that execution shall issue for the delivery of property, other than land or money by Order XLVIII. r. 1. Damages for breach of war- ranty of specific chattels. In an action for breach of warranty of a specific chattel the measure of damages varies according to whether the chattel has been returned or kept. The chattel can be returned or refused only where the contract so provides in the event of a breach of warranty ; or where the contract is made conditional upon the 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 price which was paid for it, unless returned under an agreement to a different effect. If the chattel is kept, the measure of damages is the diminution in value owing to the defect warranted against (b). The loss of profit upon a resale cannot in general be recovered; but such sale would be evidence of the value of the chattel if it had been sound ; and similarly a sale at a diminished price, after discovery of the breach of warranty, would be evidence of the real value of the chattel (c). The buyer may, in some cases, after discovery of a breach of warranty and offering to return the chattel, charge as damages the expense of keeping the chattel for a reasonable time until it can be disposed of (d). The buyer of a horse with a warranty resold it with a similar warranty, and being 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 (e). But if he defends the action at his own risk, when he might have discovered the unsoundness, he cannot afterwards charge the costs to the seller (/) ; nor if he pays the claim when he has a good (a) Ante, pp. 334, 715. (i) Caswell v. Coare, I Taunt. 566 ; Curtis V. Sannaij, 3 Esp. 82 ; Clare V. Maynard, 6 A. & E. 519 ; Cox v. Walker, 6 A. & E. 523, n. (a). (c) Clare v, Maynard, 6 A. & E. 519 ; see ante, p. 912. {f) Caswell V. Coare, 1 Taimt. 566 ; Chesterman y. Lamb, 2 A. & E. 129. (e) Leicis v. Peake, 7 Taunt. 158. (/) Wrightup v. Chomterlain, 7 Scott, 689; see post, p. 931. APPLICATION TO CONTRACTS. 919 defence (g). If the warranty is fraudulent, the seller is Chap. i. responsible for the consequences of the buyer acting upon the '- — 1 faith of the warranty : as where a person sold a cow, and fraudulently warranted it to be sound, when he knew it to have an infectious disease, and the buyer placed it with other cows which caught the disease and died, the seller was held responsible in damages for the value of all the cows (A) ; and where the warranty was not fraudulent, but the seller of the cow knew that the buyer was a farmer keeping other cows, he was held equally responsible («') . Upon a contract for the sale and delivery of goods of a Warranty- described quantity and quality, the seller is bound to deliver sold by goods answering to the description contracted for, which he tion"^' substantially warrants ; the buyer may refuse to accept inferior goods and sue the seller for not delivering goods according to the contract, in which action the measure of damages is the value of goods of the description contracted for at the tirae appointed for delivery, 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 (k). If the seller knew that the buyer was buying for the purpose of resale, he may also be liable for the special damage occa- sioned to the buyer by reason of his not being able to complete such resale through the inferiority of the goods delivered (1). Where the subject of the sale and warranty was seed-barley of a particular description, and the buyer resold it with a similar warranty, and consequently became liable to compensate the sub-purchasers for their loss in using the barley for seed as warranted, it was held that such (a) Kiddle v. Zoveit, L. R. 16 Q. 3 C. B. N. S. 128; 27 L. J. C. P. 27; ^jy_ 605. Mngle v. Sare, 7 C. B. N- S. 146 ; (h) Mullett V. Mason, L. E. 1 C.P. 29 L. J. C. P. 143 ; see Cassaioglou 559 ■ 35 L. J. C. P. 299. v. GMs, L. E. 9 Q. B. D. 220 ; 52 (i) Smith V. Green, L. E. 1 0. P. L. J. Q. B. 638. D. 92 • 45 L. J. C. P. 29. (t) See Dingle v. Hare, sufra; an(J \k) 'Ante, p. 714 ; Loder v, Kelmle, see ante, p. 901, 920 DAMAGES. Paet V. liability was a consequence of the breach of warranty which the buyer might claim against the seller as damages (m). Where a contract was made for the supply of army shoes, which were known to be for the use of a foreign government, and which were rejected by them because of a latent defect in quality, the buyer was held entitled to claim as damages the costs of exporting, delivering, and warehousing, and the loss of profit (w) . If the buyer, having accepted the goods, is sued for the price, he may prove in reduction of damages the difference in value between the goods delivered and those contracted for, and diminish the price by that amoixat (o) . If the buyer refuses the goods as not answering the description contracted for, he may recover the price previously paid as an implied debt arising upon the failure of the consideration (p). ux action Damages In an action against a carrier for default or delay in delivering goods, the general measure of the .damages is the value of the goods at the place of destination at the time when they ought to have been delivered, and not the value at the place of despatch {q). This value is regulated by the market value at that place and time, if there is there a market for such goods ; and in the case of delay in delivering the goods, the damages would be the fall in the market price during the delay (r) ; or if the price at that place varies with the season, the loss of the season for selUng such goods (s) ; but damages for the loss of a market at another place to which the owner intended to forward them are not recoverable {t) ; nor the expected profits of selling the goods by an agent at the place of dehvery {u) . If there is no {in) Sandally. Saper, E. B. & E. (s) Wilson y. Lancashire^ Yorkshire 84 ; 27 L. J. Q. B. 266. Sy., 9 C. B. N. S. 632 ; 30 L. J. C. P. («) HeilbiM y. Hielcson, L. R. 7 25'2 \ &ee Sclnihe v. Great Eastern Sy., C. P. 438 ; 41 L. J. C. P. 228. L. E. 19 Q. B. D. 30 ; 56 L. J. Q. B. (o) See ante, p. 907. 442. (p) See ante, p. 86 ; Lodcr v. («) Sawes v. South Eastern Sy., 54 Xekule, 3 C. B. N. S. 139. L. J. Q. B. 174. (}) Siee V. Eaxendale, 7 H. & N. (m) Great Western Sy. v. Scdmayne, 96 ; 30 L. J. Ex. 371. L. R. 1 C. P. 329 ; Wilson v. Lanca- (r) Collard v. South Eastern Sy., 7 shire ^' Yorkshire Sy., supra. H. & N. 79 ; 30 L. J. Ex. 393. APPLICATION TO CONTRACTS. 921 market price the value is to be estimated accordinsr to the Chaj?. i. . Sect II Circumstances : as in the case of goods intended for com- '- — '- merce, at the cost price with the cost of carriage and with a reasonable profit to the importer (x). In the case of samples of goods for procuring orders, known to be such by the carrier, which could not be replaced in the market, and which became useless by delay in carriage, the damages were assessed at the value to the owner at the time when they should have been delivered (y). — But the measure of the market value on arrival does not apply to a delay in the carriage of goods on long sea voyages, because it is the practice to sell goods during such voyages without waiting the arrival ; and therefore damages are not allowed for a fall in the market during delay in arrival; the damages are measured by deterioration of the goods and interest on the value during the delay (s) . Where the shipowner is respon- sible for the loss of the goods carried the damages are the market value at the port of discharge at the time when the cargo should have arrived, deducting unpaid freight for which there is a lien ; and it is immaterial in such case that the owner has sold the cargo " to arrive " at a price less than that market price (a). — A declaration of value upon which Deciara- the carrier receives the goods for carriage may limit the value. claim to damages ; as a declaration signed upon the delivery of horses to a railway company for carriage that the value of each horse did not exceed 101. (b). The carrier may also be bound by receiving goods as of a declared value ; and to avoid such liability he may receive them subject to the express condition, expressed in the bill of lading or otherwise, as of " value and contents unknown," or " quantity and quality unknown," the effect of which is to protect him from any previous representation made respecting the value ; in (x) O'SanlatiY. Great Western JRy., {a) Sodocanachi y. Milburn, L. E. 6 B. & S. 484 ; 34 L. J. Q. B. 154. 18 Q. B. D. 67 ; 56 L. J. Q. B. 202 ; (v) Schulze v. Great Eastern Ry., Smith v. Tregarthen, 56 L. J. Q. B. ^"' 437. (z) The Parana, L. E. 2 Adm. D. (b) MeCance v. London f N. W. 118 ; 45 L. J. Adm. 108 ; The Notting Ry., 3 H. & C. 343 ; 34 L. J. Ex. mil, L. E. 9 Adm. 106 ; 53 L. J. 39. Adm. 56. 922 DAMAGES. Paet v. Special damages contem- plated by the parties. Damages not con- templated by the parties. which case also the owner of the goods is not bound by any representation made respecting them (c). " Whenever either the object of the sender is specially brought to the notice of the carrier, or circumstances are known to the carrier from which the object ought in reason to be inferred, so that the object may be taken to have been within the contemplation of both parties, damages may be recovered for the natural consequences of the failure of that object "((^). Where a railway company employed agents to collect the goods of exhibitors at an agricultural show for the special purpose of carrying them to another similar show ; it was held that they had contracted to carry out the special purpose of the exhibitors, and therefore upon failure to deliver the goods in time for the show they became liable to pay for the expected profits of the exhibitor, and also for his loss of time (e). And in an action by a colliery owner agaiast a railway company for refusing to carry coals, damages were assessed for loss of customers in his business (/). — But damages which could not reasonably be contemplated as the consequence of a breach in the delivery are not recoverable : as the stoppage of a mill by delay in delivering a portion of the machinery of which the carrier did not know the object (g) ; the stoppage of a manufacture by delay in delivering material to work upon (A) ; the loss caused by the non-delivery of a message, of the import of which the carrier was ignorant (?) ; the deterioration of goods during delay of carriage caused by an intrinsic defect in the goods of which the carrier was ignorant (k) ; the hotel expenses of a commercial traveller whilst waiting for the arrival of the goods (?) ; all such damages being too remote and not con- (c) Lebeau v. Gen. Steam Nav., L. E. 8 C. P. 88 ; 42 L. J. C. P. 1 ; see Tulhj T. Terry, L. E. 8 C. P. 679 ; 42 L. J. C. P. 240. {d) Cockbum, C. J., Simpson v. London $ N. W. Sy., L. E. 1 Q. B. D. 277 ; 45 L. J. Q. B. 182. (e) Simpson v. L. ^ iV. TV. Hy., supra. (/) Lancashire ^ Yorkshire My. v. Oidlow, L. E. 7 H. L. 617 ; 46 L. J. H. L. 625, {g) BadleyY. Baxeiidale, 9 Ex. 341 ; 23 L. J. Ex. 179 ; see ante, p. 901. (A) Gee v. Lancashire My., 6 H. & N. 211 ; SOL. J. Ex. 11. (i) Sanders v. Stuart, L. E. 1 C. P. D. 326 ; 45 L. J. C. 682. (k) Baldwin v.L. 0. ^- D. My.,Ij. E. 9 Q. B. D. 582. [1) Woodger v. Great TTestern My., L. E. 2 C. P. 318 ; 36 L. J. C. P. 177. APPLICATION TO CONTRACTS. 923 templated in making the contract. A mere notice given to Chap. I. the carrier of the special purpose for which the goods are '. — 1 sent is not in general sufiBcient to render him responsible ; the notice must be given and received under such circum- stances that he may be taken to contract to carry and deliver the goods with special reference to that purpose. Thus, a notice given to a railway company at the time of despatching the goods that the senders were under contract to deliver them by a certain day, was held insufScient to charge the company with the loss of the contract price, instead of the market price at that day (m). In an action by a passenger for breach of contract to carry Damages him to his destination, he may claim as damages the expense pa^ssenger" of getting there by other reasonable means, if there be such, or compensation for the trouble and inconvenience of walking there, if there be not, because it is the direct object contem- plated in the contract that he should reach his destination ; but an accidental injury or illness happening to him in the course of reaching his destination by such means is neither a proximate consequence of the breach of contract nor within the contemplation of the parties at the time of contracting {n) . Upon the same principle a loss of business appointments caused by the delay of a passenger is not generally charge- able as damages (o) . In an action against the purchaser of land for the purchase Damages money, the vendor may claim damages in respect of interest ty wndor from the time appointed for taking possession (p). In an '^^^J.^'^j^ action agaiast the purchaser for refusing to accept a convey- of land, anoe, the land remaining the property of the vendor, he can recover the costs of the sale and preparatory to execution of Im) SorneY. Midland Ey., L. E. 8 (o) Samlin v. G. iV. Ey., 1 H. & C. P. 131 ; 42 L. J. 0. P. 59; see N. 408; 26 L. J. Ex. 20. ante, p. 901. (p) Ee Pigolt # G. W. Ry., L. R. in) Sobbs V. London # S. W. My., 18 C. D. 146 ; 50 L. J. C. 679 ; L. E. 10 Q. B. Ill ; 44 L. J. Q. B. Marsh v. Jones, L. K. 40 0. D. 663 ; 49 ; see McMahon v. Field, L. E. 7 see Re Siley ^ Streatfield, L. E. 34 C. Q. B. D. 591 ; 50 L. J. Q. B. 552 ; D. 386 ; 56 L. J. C. 442 ; and see and see ante, pp. 900, 903. post, p. 949. Tender. 924 DAMAGES. Paet V. the conveyance ; and if the purchaser has been in possession he may be charged with the profits of the land (q). By the conditions of sale the vendor may also be entitled to retain the deposit (r). Upon the refusal of the purchaser to com- plete the vendor is entitled to resell the land and charge the purchaser with the deficiency of the purchase money upon resale ; and it is usual to insert an express condition to that eileot in the conditions of sale (s). In the case of a resale under this right, the forfeited deposit must be accounted for in part payment of the deficiency of the purchase money (t) . In an action against the vendor for not completing the sale the purchaser may recover as damages the costs of preparing and entering into the agreement of sale, and the costs of investigating the title, including the expense of comparing deeds, searching for judgments, and journeys for these pur- poses (m). These costs may be given in proceedings under the Yendors and Purchasers Act, 1874, s. 9, and may be charged upon the vendor's interest in the property (x) . The liability to pay such costs is sufficient for the assessment of the damages, though they have not been paid before action {>/). But the purchaser cannot in general recover as damages the expenses incurred in the preliminary negotiation of the eon- tract ; nor the cost of a survey of the estate, or of a deed of conveyance prepared before ascertaining the title; nor the cost of raising the purchase money before it is necessary ; nor interest upon such purchase money ; nor the cost of re- investment (z) ; nor loss in buying farming stock for the land (q) Laird v. Pim, 7 M. & W. 474 ; 615 ; Compton v. Bagleij, (1892) 1 Ch. Bee jiast London Vnionv. Metrop. Bt/., 313 ; 61 L. J. C. 113. L. R. 4 Ex. 309 ; 38 L. J. Ex. 226 ; (i-) lie Yielding S; Westbrook, L. E. and see ante, p. 567. 31 C. JD. 344 ; 65 L. J. C. 496 ; JSar- (r) Essex v. Daniell, L. R. IOC. P. greaves v. Thompson, 32 C. D. 454 ; 56 538 ; see ante, p. 87. L. J. C. 199 ; see Jte Davis ^- Cavey, (s) Noble V. Edwards, L. R. 6 C. D. 40 C. D. 601 ; 58 L. J. C. 143 ; Re 378 ; Ex p. Hunter, 6 Vea. 94. Arbib i- Class, (1891) 1 Ch. 601. (t) Oekenden y. Henly, B. B. & E. (y) Richardson v. Chasen, 10 Q. B. 485 ; 47 L. J. Q. B. 361 ; see Bowe 766 ; see Fritchett t. Boevey, 1 C. & v. Smith, L. R. 27 C. D. 89 ; 53 L. J. M. 775. C. 1055 ; and see ante, p. 88. (z) Hodges y . Litchfield, supra; Ean- («<) Hodges v. LitchJieU, 1 Bing. slip v. Padwick, supra ; see Sweetland N. C. 492; Hanslipr. Padwick, 6 Ex. v. Smith, 1 C. & M. 585 ; Sherry v. APPLICATION TO CONTRACTS. 925 in expectation of completion (a) . — The purcliaser may also Chap. i. I.- J -1. J ■ \ J. ii, J -J. Sect. II. recover nis deposit money, and. interest on the deposit money from the day appointed for completion, unless otherwise agreed in the conditions of sale {b) ; and if the contract fails for want of title in the vendor, interest may be charged from the day of the deposit (c). If the contract fails for want of a written memorandum to satisfy the Statute of Prauds, or if the contract is rescinded upon a default in the vendor, the purchaser can recover his deposit as an implied debt arising upon the failure of consideration ; but he cannot in that form of claim recover interest, nor the costs incurred by him which are recoverable only as damages for a breach of contract (d) . Where the breach consists only of a defect in title, the Damages for loss of purchaser cannot claim damages for the loss of the profit or bargain, benefit of the contract ; even though the vendor knew of the defect, provided he acted bond fide, and with reasonable grounds of belief that he had or could make a title (e) : as where the vendor contracted to sell a lease which was not assignable without the licence of the lessor, in the belief that such licence would be given (/) ; and where a covenant to renew a lease at a certain rent could not be performed when the time came for renewal, because the rent was not then the best rent, as was required by the power of leasing of the covenantor {g) . This rule applies to the sale of real estate of any kind that is held by title, as a contract to grant a right of way {h) . But it only applies to the case of failure to make a good title ; and if the vendor, having or being able to give a good title, refuses to complete the sale, the purchaser is entitled to full compensation for the loss of his bargain (i). Oke, 3 Dowl. 349 ; Soivland v. Nbtris, («) Flureau v. Thomhill, 2 W. Bl. 1 Cox, 59 ; Ee Siley and Streatfield, 1078 ; Bain v. Fothergill, L. B. 7 L. R. 34 C. D. 386 ; 56 L. J. C. 442. H. L. 158 ; 43 L. J. Ex. 243 ; over- (a) Godwin v. Francis, L. E. 6 ruling Hopkins t. Grazebrook, 6 B. & C. P. 295 ; 39 L. J. G. P. 121. C. 31 ; see Rock Cement Co. v. Wilson, (i) Farquhar v. Farley, 1 Taunt. 52 L. J. C. 214. 592 ; see Powell v. Fouiell, L. K. 19 (/) £ain v. Fothergill, supra. Eq. 422 ; 44 L. J. C. 311. (V) Gas Light Co. t. Towsc.iL. R. 35 (e) Re Ilargreares and Thompson, C. D. 519 ; 56 L. J. C. 889. supra. W Roivev. London School JBd., 36 {d) Gosbell v. Archer, 2 A. & E. C. D. 619 ; 57 L. J. C. 179. 500 ; see ante, p. 88. (i) Campbell, C. J., Simons v. 926 DAMAGES, FabtV. In the case of a sale by mortgagees who made a good title, but refused to take the proceedings against the mortgagor necessary to deliver possession to the purchaser ; it was held that the damages included the loss of bargain to the pur- chaser (k) ; and the loss of a tenant to whom he had con- tracted to give possession (^). And in the case of an agreement for a lease of business premises ; the lessor re- fusing to give possession was held chargeable with the loss of profits to the lessee by the delay in his trade (m). Upon the same principle if the purchaser is willing or is compelled to accept the property with compensation for a defect of title, the compensation must be valued at the full loss of bargain to the purchaser; as in the case of a right of way or other incumbrance over the property (n). In an action against an agent upon the warranty of his authority to sell, where the vendor repudiates the contract, the purchaser is entitled to recover against the agent the full benefit of the contract, as if it had been valid ; and it will be presumed against the agent that the vendor would have been able and wining to com- plete (o). — In the above cases of the purchaser being entitled to claim as damages the benefit of the contract, he cannot charge the specific loss on an actual resale as the measure of damage, but he may give it in evidence of what is in fact the value of his bargain {p). Covenant In an action for breach of a covenant for title in an exe- cuted conveyance, if the purchaser is evicted by reason of a defect in the title, the damages are the value of the estate ; and if not evicted the damages are the deterioration in selling value by reason of the defect of title (y) . Accordingly where Patchett, 7 E. & B. 572 ; 26 L. J. Q. B. 75 ; and see^os^, p. 988. B. 199. (o) Simons v. Patchett, supra; see (k) Engell v. Fitch, L. R. 4 Q. B. ante, p. 431, post, p. 932. 659 ; 38 L. J. Q. B. 304. (p) Spedding y. Xevell, L. E. i C. {I) Eotjal Bristol B. 8. v. Bomash, P. 212 ; 38 L. J. C. P. 183 ; Godwin L. K. 35 C. D. 392 ; 56 L. J. C. 840. t. Francis, L. R. 5 C. P. 295 ; 39 L. ()«) Jaqties v. Millar, L. R. 6 C. D. J. C. P. 121 ; see ante, pp. 912, 918. 153. (?) Eingdon v. Xottle, 4 M. & S. (m) Royal Bristol B. S. v. Bomash, 53 ; Jessel, M. R., Child t. Stenning, supra; seo Wall v. London Meal I'rop. L. E. 11 C. D. 86 • 48 L J C 392 Co., L. R. 9 Q. B. 249 ; 43 L. J. Q. APPLICATION TO CONTBAOTS. 927 an estate was conveyed witli a covenant that it was freehold, chap. i. and in fact it was copyhold, the measure of damages was held ^°'^' ' to be the difference in value due to the difference in tenure (r) . The purchaser with a covenant for title may compromise a suit brought against him by an adverse claimant by a pay- ment of money and charge the sum paid together with all the costs he has incurred, as damages for the defective title ; and that without giving notice of the claim to the covenantor, provided the compromise was reasonable (s) . — A covenant for title is a continuing covenant running with the land, and a defect of title is a continuing breach, upon which the tenant for the time being may sue as fresh damage arises. Upon the death of the purchaser to whom the covenant was made his heir or devisee takes the estate with the right to recover the damages accrued and accruing to the estate from a defect of title ; his executor retains the right to recover the damages accrued to the personal estate of the purchaser in his lifetime. If the ptirohaser is evicted, there remains no descendible or devisable estate ; and his executor can recover the full value of the estate. If the heir or devisee is evicted, he is entitled to recover the full value, though the defect of title existed in the lifetime of the purchaser (<) . — In an action upon the Covenant covenant against incumbrances, the damages are the diminu- ticma- tion in value of the estate by reason of such incumbrances ; ^''^»i<=^^- and in an action upon a covenant to pay off specific incum- brances the damages are the whole amount of incumbrance covenanted to be paid, though no claim has been made by the incumbrancer, nor any present damage in fact proved (u). — Under an absolute covenant for quiet enjoyment of land Covenant demised for a term of years, from which the lessee was enjoyment, evicted by a rightful claimant, the damages were assessed at the full value of the term unexpired, the costs of defending an action of ejectment, and the sum recovered for mesne (r) Gray v. Biscoe, Noj, 142. S. 188 ; see Spoor v. Green, L. E. 9 (s) Smith V. Compton, 3 B. & Ad. Ex. 99 ; 43 L. J. Ex. 57. 407 ; see post, p. 931. («) Lethbridge v. Mytton, 2 B. & it) Lucy v. Leiington, 2 Lev. 26 ; Ad. 772 ; see Hodgson v. TVcod, 2 H. 1 Ventr. 175 ; Kingdon v. Nottle, 1 &■ C. 649 ; 33 L. J. Ex. 76. M. & S. 355 ; Jones v. King, 4 M. & 928 DAMAGES. Paet V. profits (x) . In such case if the lessee obtains a new lease from the rightful owner, the value of that lease may be taken in reduction of the damages (y). If the lessee is not evicted, he can recover damages only for the disturbance of the pos- session to the time of action ; because the disturbance, though under a rightful title may not continue (z). A right in a third party over the demised premises, as a right of way or a right of common, unless exercised in fact to the disturbance of the possession, is no breach of the covenant for quiet enjoyment ; though it is a breach of covenant for title for which the lessee may recover damages in the diminished value of the possession («). The covenant for quiet enjoyment applies only to the possession, and not to restrictions upon the use of the land ; and it excludes any implied covenant against such restrictions (b). Under the usual covenant in a lease for quiet enjoyment restricted to the acts of the lessor and of those claiming under him, the lessee may recover damages for any interruption or interference with the posses- sion by an act done by the lessor or under his authority (c) ; as by neglect of repair of a drain through the demised land whereby the possession was disturbed by an escape of drainage {d) ; or by the lessor claiming and in fact taking the rents of the lessee's sub-tenants (e) . But damages cannot be claimed for an interruption of the possession as a conse- quence of the act of the lessor, which is not a natural con- sequence, nor within the contemplation of the parties in making the covenant; as an extraordinary influx of water into a mine from an unknown source, which was an accidental consequence of the lessor working the adjacent mine in a CoTenant proper manner (/) . — A covenant by a lessee to keep the to rcpSiir. {x) Williams v. Burrell, 1 C. B. Robinson v. Kilvert, L. R. 41 C. D. 402. 88 ; 58 L. J. 0. 392 ; see Spurling v. (y) Lock V. Furze, L. E. 1 C. P. Bantoft, (1891) 2 Q. B. 384 : 60 L. J. 441 ; 35 L. J. C. P. 141. Q. B. 745. (z) Ghild T. Stenning, L. B. 11 C. (c) Sanderson v. Berwick, L. R. 13 D. 82 ; 48 L. J. C. 392. Q. B. D. 547 ; 53 L. J. Q. B. 559. [a) Ilouard f. Maitlmul, L. R. 11 (d) Ihid. Q. B. D. 696 ; 53 L. J. Q. B. i'l ; (t) Edge v. Boi/mu, L. R. 16 Q. B. see ante, p. 92(i. 117 ; 55 L. J. Q. B. 90. {h)])aiiicU V. Athcrtou, L. R. 7 (/) Harrison v. Miincaster, (1891) Q. B. 316; 41 L. J. Q. B. 165 ; 2 Q. B. 680; see Anderson v. Ojipen- APPLICATION TO CONTRACTS. 929 demised premises in repair during the term is a continuing Chap. i. covenant and non-repair is a continuing breach, for which an action may he brought and the damages assessed to the com- mencement of the action ; but no damages can be claimed for a possible continuance of the breach (g) . The measure of damages at any time during the term is the present diminu- tion of the saleable value of the reversion due to the want of repair {h). The measure of damages at the end of the term is the sum required for the covenanted repairs (^). The recovery of damages in a former action is no bar to an action for subsequent continuance of the breach ; but the sum recovered in the former action may be considered ia mitiga- tion of damages (/r) . A covenant by the lessor to put the demised premises in repair is not a continuing covenant, and is broken once for all by non-repair at the beginning of the lease (/). A covenant to repair is presumptively construed with reference to the condition of the premises at the time when the covenant begins to operate ; hence covenants to repair in the same terms but made at different times vary in operation and in the measure of damages for a breach {in). — In an action by a lessor against an assignee of the lease upon Coyenant a covenant running with the land not to assign without assign, licence of the lessor, the measure of damages is the value to the lessor of the personal liability of the assignee, which he has lost by the assignment, as compared with that of the unKcensed person to whom the lease has been assigned («) . " The general rule is that the right to costs must always Damages be considered as finally settled in the Court where the ques- action. heimer, h. B. 5 Q. B. T>. 602 ; 49 L. 60 L. J. Q. B. 510 ; ante, p. 908. J. Q. B. 708 ; Shaw v. SUnton, 2 H. (/c) Coward v. Gregory, L. E. 2 & N. 858 ; 27 L. J. Ex. 253 ; see C. P. 163 ; 36 L. J. C. P. 1 ; ante, ante, pp. 595, 901. p. 905. [g) Luxmorey. Robson, 1 B. & Aid. (I) Cowardy. Gregory, supra. 584. (m) Walher \. Satton, 10 M. & W. [h) Smith V. Feat, 9 Ex. 161 ; 23 249 ; Pontifex v. Foord, L. R. 12 L. J. Ex. 84; Witham v. Kershaw, Q. B. D. 152; 53 L. J. Q. B. 321. L. B. 16 Q. B. D. 613 ; ante, p. 899. [n] JTillianis v. Farle, L. R. 3 (J) Morgan v. Sardy, L. R. 17 Q. B. 739 ; 37 L. J. Q. B. 231 ; see Q. B. D. 770; 56 L. J. Q. B. 363; post, p. 1059. Joiner y. Weeks, (1891) 2 Q. B. 31 ; L. 3 930 DAMAGES. Paet V. tion is adjudicated on to whicli it is accessory. So that, if any costs were awarded, nothing heyond the sum taxed according to the rules of the Court could be recovered as damages ; or if costs were expressly withheld hy an adjudi- cation in the particular ease, none would be recoverable by suit in any other courts (o). Accordingly, in an action against a vendor of land for not making a good title, the purchaser cannot claim as damages the costs of an action against the vendor for specific performance which was dismissed without costs {p) ; nor the costs of an action by the vendor for specific performance which was dismissed without costs ; nor the extra costs beyond the taxed costs of such a bill dismissed Costs of ^ith costs iq) . — The costs of an action are not given as iorrn6r action. damages in that action, because all damages sued for must have accrued before action (r) ; and the taxed costs between party and party are considered in law to be a full compen- sation for the charges of litigation between the parties to that action ; but the extra costs between solicitor and client may be recoverable in an action against a third party who is responsible for the former action («) . Taxation of costs is not a condition precedent to claiming them in an action as a debt or as damages ; and if the amount is disputed judgment may be given for the costs, subject to taxation (t). In an action for breach of contract the costs of an action brought by a third party in consequence of the breach are in some cases re- coverable as special damages : as where the buyer of goods with a warranty resells them with the like warranty, he may charge the seller with the costs of an action brought against him on the warranty, which he defends with the sanction of the seller {ii) . So where a buyer of goods as of a certain (o) Per cur. Maiden v. Ft/son, 11 (s) Boey. Filliter, ISM. &W.i1; Q. B. 301. Cockburn v. Edwards, supra; Quarts (p) Maiden v. Fyson, supra; see Gold Mining Co. v. Fyre, L. E.. 11 rVood V. Scarth, 2 K. & J. 33 ; Q. B. D. 674 ; 52 L. J. Q. B. 488 ; "Wood, V.-C, Onions v. Cohen, 2 H. &ee post, p. 931, n. [z). & M. 3.54 ; 34 L. J. C. 341. (t) Eoldsicorth y. IVihon, 4 B. & (q) Hodges v. Litchfield, 1 Bing. S. 1 ; 32 L. J. Q. B. 289; Meirop. N. C. 492 ; see Gray v. Fowler, L. li. Bist. Rg. v. Sharpe, L. E. 5 Ap. Ca. 8 Ex. 249 ; 42 L. J. Ex. 161. 425 ; 50 L. J. Q. B. 14. (r) See Cockburn v. Edwards, L. R. (u) Zeuis t. Peake, 7 Taunt. 153 ; 18 C. D. 449 ; 51 L. J. C. 46. ante, p. 918. APPLICATION TO CONTRACTS. 931 kind and quality, which the seller knows are bought for resale Chap. i. in his busiaess, sells them again as of the same kind and quality, he may charge the seller with the costs which he has incurred in defending an action for defect in the goods deli- vered (x). So in an action by a lessee against his lessor for breach of a covenant for quiet enjoyment he may charge as damages the costs of an action by an adverse claimant, which after giving notice to the lessor he had defended (ij). Contracts of indemnity against loss or damage in bringing Indemnity or defendmg actions cover all the costs and charges which costs. are necessarily and reasonably incurred ; including the extra costs between soHeitor and client (z). Such costs are recover- able under an indemnity, though no notice of the action is given ; " the purpose of giving notice is not to give a ground of action ; but if a demand be made which the person in- demnifying is bound to pay, and notice be given to him and he refuse to defend the action, in consequence of which the person to be indemnified is obliged to pay the demand, that is equivalent to a judgment, and estops the other party from saying that the defendant in the first action was not bound to pay the money" (a). But costs unnecessarily or imreasonably incurred are not chargeable under an indem- nity : as in defending an action to which the defendant knew, or might by proper inquiry have discovered that he had no defence (b) ; or in defending an action upon a matter which had been decided against him ia a previous action (c). And a contractor cannot charge the costs of defending an action for a breach of his own contract against a person who is liable to him upon a sub-contract for the same matter ; because the contracts are separate and independent {d). [x) Maintvaring v. Brandon, 8 supra ; Jones v. Williams, 7 M. & W. Taunt. 202; Sammond y. Bussey, 501; Blythv. Smith, 6 M. & G. i05; L. E. 20 Q. B. 79 ; 57 L. J. Q. B. Mellish, L. J., Parherv. Zewis, L. E. 68 ; see ante, p. 901. 8 Ch. 1059. {y) Bolph T. Crouch, L. E. 3 Ex. (6) Wriyhtup v. Chamberlain, ISaott, 44 ; 37 L. J. Ex. 8. 598 ; ante, p. 918 ; Walker v. Salton, (z) Smith T. Compton, 3 B. & Ad. 10 M. & W. 249 ; Beech v. Jones, 5 407; Howard \. Lovegrove, L. E. 6 C. B. 696. Ex. 43 ; 40 L. J. Ex. 14 ; Hughes v. (c) Smith v. Sowell, 6 Ex. 730 ; 20 Graeme, 33 L. J. Q. B. 43. L. J. Ex. 377. in) Parke, J., Smith v. Compton, (d) BaxendaU t. L. C. % D. By., 3o2 932 DAMAGES. P-'-i'J "V- Upon the above principle an agent, who by professing to Indemnity act with a Certain authority impliedly undertakes to indem- for detect nify the party dealing with him against a defect in that rity. ' authority, is chargeable with the full costs of an action against the principal which fails for want of the professed authority to bind the principal (e). No notice of the action is required to be given to the agent, the contract made by him for the principal being sufficient authority from him to bring the action ; but no costs are chargeable to him which have been incurred after the plaintiff has received notice of the want of authority (/). Nor can the costs be charged to the agent if the action fails from causes independent of the want of authority : as where proof of the contract fails for want of evidence to satisfy the Statute of Frauds (g) . In such actions against the agent the general measure of damages is the actual value of the contract which he professes to have made ; but the agent warrants only the validity of the contract to bind the principal and not his capacity to perform it, upon which the value of the contract depends and which can only be presumed as against the agent in absence of proof to the contrary ; the costs of the action to enforce the contract are ' Indemnity recoverable as special damages {h) . And the agent may limit his warranty to the receipt of the authority, as by signing " as agent by telegraphic message," which does not warrant the correctness of the message [i). — An agent is impliedly entitled to indemnity by his principal for acting upon his authority ; and if the principal repudiates the authority the agent may recover the costs properly incurred in defending an action brought against him by reason of the repudia- tion [k). of agent. L. E. 10 Ex. 35 ; 44 L. J. Ex. 20 ; Fisher v. Val de Travers Co., L. R. 1 C. P. D. 511; 45 L. J. C. P. 479; see Mors le Blanch v. Tlllson, L. R. 8 C. P. 227 ; 42 L. J. 0. P. 70. (e) Hvghes v. Graeme, 33 L. J. Q. B. 335 ; aae ante, p. 431. (/) Godwin V. Francis, L. R. 5 C. V. 295; 39 L. .T. C. P. 121. [g) Poio V. Davis, 1 B. & S. 220 ; 30 L. J. Q. B. 257. [h) Re National Coffee Co., L. R. 24 C. D. 367 ; 53 L. J. C. 57 ; Firbank v. Eumphrei/s, L. R. 18 Q. B. D. 54 ; 56 L. J. Q. B. 57 ; see ante, pp. 431, 926. (i) LillijM. Smales, (1892) "W.N. 50. [k) Broom v. Hall, 7 C. B. N. S. 503 ; see ante, pp. 38, 408. 933 Sect. III.— LIQUIDATED DAMAGES AND PENALTY. PAGE Contracts with liquidated damages for a breach — sum con- tracted to be paid for doing a certain act 933 Contracts with penalty — relief against penalty — money bonds — bonds with special conditions — coveuauts and simple contracts with penalty 934 Specific performance of contract with penalty or liquidated damages — contract giving option of payment 937 Construction of contracts as to penalty or liquidated dam- ages — larger sum payable in default of smaller— agree- ment to take smaller for larger — contracts of uncertain value — contracts with various stipulations 938 A contract may in express terms assess the sum to be paid Liquidated 1 . . ft T . . damages. as the liquidated damages for a breach ; thereby dispensing with further inquiry as to the measure and amount of dam- ages. " There is nothing illegal or unreasonable in the parties by their mutual agreement, settling the amount of damages, uncertain in their nature, at any sum upon which they may agree. In many cases, such an agreement fixes that which is almost impossible to be accurately ascertained; and in all cases it saves the expense and difficulty of bringing witnesses to that point " («) . Accordingly charterparties usually fix the sum to be paid daily for the demurrage or detention of the ship beyond the days allowed for loading and unload- ing (b). And building contracts stipulate for a fixed sum to be paid daily or weekly for delay in completing the work (c). A contract for the sale of goods to be delivered at certain dates may agree for a certain sum to be paid upon the quantities delayed in delivery (c?) . The award of an arbitrator may (a) Fer cur. Eemble v. Farren, 6 B. 115 ; 40 L. J. Q. B. 80 ; see Re Bing. 148. Newman, L. R. 4 C. D. 724 ; 46 L. {b) Lockhart r. Falk, L. K. 10 Ex. J. B. 57 ; Zaw v. Redditeh, (1892) 1 136 ; 44 L. J. Ex. 108. Q. B. 127. (c) Fletcher v. Dyche, 2 T. E. 32; {d) IBergheim^. Blaenavmi Iron Co., Jones V. St. John's Coll., L. R. 6 Q. L. R. 10 Q. B. 319 ; 44 L. J. Q. B.92. 934 DAMAGES. Paet V. provide that a party shall pay a fixed sum for every month's Sum con- delay in performing the av^ard (e) . — A contract may also be paid for stipulate for the payment of a certain sum upon the doing of ta^'IcT'^" * certain act, vi^hioh act is then not in itself a hreach of the contract, nor can it be so charged, but it is a condition pre- cedent to liability to pay the money (/) : as a covenant to pay a fixed sum if the covenantor married any other person than the covenantee {g) ; a covenant in a farming lease to pay an increased rent for every ton of hay, straw, or manure carried off the land without consent of the lessor {li) ; or an increased rent per acre for ploughing up pasture, or for over tillage with certain crops («') ; or to pay a fixed sum for every tree cut down by the lessee (li). A covenant ia a lease to pay an iacreased rent for carrying on certain trades on the demised premises {I). Contracts with penalty. Relief against penalty. A contract may fix a sum of money to be paid on a breach, with no intention of assessing the damages, but as a penalty to secure performance : as in the case of bonds, which acknow- ledge a sum of money to be due and payable, but are condi- tioned to be void on payment of a debt or performance of some stipulated act. The sum acknowledged is usually fixed at twice the amount of the debt or of the estimated value of the performance secured ; the form of the iustrument thus showing that it is intended as a penalty (?h). — The Courts of common law originally awarded the full penalty of a bond as forfeited by a breach of the condition according to the strict construction of the terms. But in cases of penalty the Court of Chancery exercised a general jurisdiction to relieve against the judgment at law upon payment of the sum really due, or {«) Parfitt V. Ghamhre, L. R. 15 Eq. 36 ; 42 L. J. C. 6. (/) Leigh v. Lillie, 6 H. & N. 165 ; 30 L. J. Ex. 25 ; aee Surst v. ffursi, i Ex. 571. (^) Zowe T. Filers, 4 BiuT. 2225 ; see Box v. Day, 1 Wils. 59 ; Cock v. Richards, 10 Ves. 429. [h) Leigh v. LxUic, supra ; see ToUilt V. Forrest, 11 Q. B. 949. (i) Folfe V. Fetersoit, 2 Bro. P. C. 436 ; Farrant v. OlmiKs, 3 B. & Aid. 692 ; Jones v. Green, 3 T. & J. 298 ; Parke, B., Galsworthy t. Strutt, 1 Ex. 663 ; see Birch v. Stevenson, 3 Taunt. 469. (k) Hurst V. Hurst, supra. (I) Weston v. Metrop. Asylum, L. E. 9 Q. B. D. 404; 51 L. j. Q. B. 399. («j) See ante, p. 122. HQUIDATEB DAMAGES AND PENALTY. 935 the amount of damages actually sustained by the breach of Chap. I. contract ; and for this purpose they directed an issue of quan- '- — '- turn damnificatus, with an injunction against proceedings upon the judgment. And the statute law subsequently imposed similar restrictions upon proceedings in actions on bonds («) . Common money bonds are regulated, in this respect, by the Money statute 4 & 5 Anne, o. 16, s. 12, which enacts that a payment made post diem may be pleaded in bar to an action on such bond with the same effect as if the money had been paid at the day and place according to the condition of the bond (o). — Bonds with special conditions, and covenants or agreements Boudswith ■ SD 6013.1 m any deed or writing with a penal sum to be forfeited on conditions, breach, are regulated by the statute 8 & 9 Will. III. o. llj s. 8, enacting that in all actions upon any bond, or on any ^ penal sum for non-performance of any such covenants or agreements, the plaintiff may assign as many breaches as he shall think fit ; and the judgment is restrained in operation to the damages assessed upon such breaches as the plaintiff shall prove ; the judgment for the penalty remaining as secu- rity for any further breaches, for which damages may be assessed and execution had upon the judgment to the amount of the penalty {p). — The action upon a bond is always in point Damages of form for the recovery of the penalty ; the obligee can in to penalty, no case recover more than the penalty ; and the obligor may obtain a stay of proceedings with an entry of satisfaction upon payment of the penalty and costs {q) . Upon a money bond no greater sum can be recovered for principal and interest than the amount of the penalty (r) ; nor can a bond creditor recover more under a trust for payment of debts (s). But where a bond and a mortgage are given as securities for the same debt, the interest on the mortgage is not hmited by the (n) Mansfield, C. J., Wyllie v. (?) WliUe v. Sealy, 1 Dougl. 49 ; Wilkes, 2 Doug. 522 ; Erringtm v. Brangwin v. Perrot, 2 W. Bl. 1190 ; AynesUxj, 2 Bro. C. C. 341 ; Sloman Wilde v. Clarkson, 6 T. E. 304 ; T. Walter, 1 Bro. 0. 0. 418 ; 2 White and see ante, p. 123. & Tudor, L. C, 6tli ed. 1257. {r) Campbell v. Graham, 1 Euss. & (o) See ante, pp. 122, 764. M. 453. [p) Order XIII. r. 14 ; Tuther v. [s) Mughes v. Wynne, 1 M. & K. Caralampi, L. E. 21 Q. B. D. 414 ; 24 ; see Mathews v. KebU, L. E. 3 and see ante, p. 761. Ch. 691 ; 37 L. J. C. 657. 936 DAMAGES. Covenants and simple contracts with penalty. Paet V. penalty of the bond (if) . And where an annuity was granted by a distinct contract and secured by a bond, it was held that arrears of the annuity were payable out of the assets of the deceased obligor, though exceeding the penalty of the bond (m) . A judgment recovered upon a bond carries interest indepen- dently of the bond [w). Upon covenants and simple contracts with a penalty the plaintiff has an election as to the form of action. " He may either bring an action of debt for the penalty and recover the penalty (after which recovery of the penalty he cannot resort to the covenant because the penalty is to be a satisfaction for the whole) ; or if he do not choose to go for the penalty he may proceed upon the covenant, and recover more or less than the penalty" {y). As in the case of a charterparty with stipulations on both sides and concluding with a penalty for non-performance, an action may be brought for a specific breach, and full damages may be recovered beyond the amount of the penalty (2). If the plaintiff sues for the penalty and the contract is within the above-mentioned statute 8 & 9 Will. III. 0. 11, he must assign breaches under the statute, and the damages recoverable are limited by the judgment for the penalty (a). If the plaintiff re- covers or accepts the penalty, it operates in full satisfaction of the contract and the other party is discharged from aU. further liability (i). A judgment for liquidated damages has the same conclusive operation (c) ; and in the case of liquidated damages no relief can be obtained against pay- ment of the full amount {d). Specific periorm- The provision for a penalty or Kquidated damages does not {t) ClarkeY. Abingdon, 17 Ves. 106. [u] Jeiidaine v. Agate, 3 Sim. 129. (x) MeChire v. i)unk'm, 1 East, 436; post, p. 948. (j/) Mansfield, 0. J., Lowe v. Peers, i Burr. 2228; Parke, B., Siirst v. Hurst, 4 Ex. 579. {z) TFinter v. Trimmer, 1 W. Bl. 395 ; Harrison v. Wright, 13 East, 343, («) Bramwell, B., Betts v. Burch, 4 H. & N. 610 ; 28 L. J. Ex. 269. lb) Bird T. Sandall, 1 W. Bl. 387 ; 3 Burr. 1345. [c) Saiiiler v. Ferguson, 1 Mac. & a. 286 ; Ctirnes v. Xt^bett, 7 H. & N. 158, 778; SO L. J. Ex. 348; 31 ib. 273; see MereerY. Irving, E. B. & E. 563; 27 L. J. Q. B. 291. id) Mansfield, C. J., Lowe v. Peers, i Burr. 2228 ; see ante, p. 933. LiariDATED DAMAGES AND PENALTY. 937 exclude the remedy of specific performance or injunction, Chap. i. where such remedy is appropriate. " In all cases where '- — ■ penalties are inserted, in case of a non-performance, this has contract never been held to release the parties from their agreements, penalty or but they must perform it notwithstandinff " (f ) . Where a liquidated bond is given conditioned for a settlement upon marriage, the Court will decree execution of the settlement, though the value of the settlement exceeds the penalty of the bond ; the settlement being the primary agreement and the bond only the security for performance (/). The Court will decree specific performance of a sale of land, notwithstanding an offer to pay the penalty of the contract {g) ; nor will the Court allow either party to claim the penalty from the other who remains willing to complete the sale (A) . The Court will grant an injunction against building upon land in breach of a covenant, though protected by a provision for the pay- ment of liquidated damages (/). And the Court will grant an injunction to enforce a bond or covenant not to carry on a trade or business in a certain place, though it expressly provides liquidated damages or a penalty for the breach ; the primary intention being to protect the practice, and not to secure compensation for the loss(/i-). But a plaintiff cannot have both the penalty and specific performance or injunction, and by taking the one remedy he excludes the other {I). — Contract If the contract gives the option to do an act upon payment Option of of money the act is no breach of contract, and the Court will P^y™®"^*- not interfere to prevent it ; as a covenant by a lessee to pay a certain sum for every acre of pasture land ploughed up, or for every tree cut down, the parties having themselves settled («) Hardwioke, L. C, Howard v. 8 Ch. 1022 ; 43 L. J. C. 261. Hopkyns, 2 Atk. 371 ; Sugden, L. C, (i) Coles v. Sims, 5 D. M. & G. 1 ; French y. Macale, 2 Dr. & W. 272, 23 L. J. C. 258. 284 ; and seepost, p. 964. {k) Bmwell v. Inns, 24 Beav. 307 ; (/) Eldon, L. C, Prebble t. Bog- 26 L. J. C. 663 ; Howard v. Wood- Imrst, 1 Swanst. .328; Hobson v. ward, 34 L. J. C. 47; Jones v. Trevor, 2 P. Wms. 191 ; Chilliner v. Heavens, L. R. 4 CD. 636 ; National Chilliner, 2 Ves. sen. 528 ; Logan t. Frovincial Bk. v. Marshall, L. E. 40 WienhoU, 1 CI. & F. 611. 0. D. 112 ; 58 L. J. C. 229 ; London (g) Hotvard v. Hopkyns, 2 Atk. and Yorkshire Bank v. Pritt, 56 L. 371 ; see Long v. Bowring, 33 Beav. J. C. 987. 685. (0 See Howardv. Woodward, supra; (A) Ee Dagmham Dock Co., L. R. and see ante, p. 936. 938 DAMAGES. Paet V. Construc- tion as to penalty or liquidated damages. Bonds. the terms, the Court will refuse both an injunction on the one part and relief against full payment on the other (m) . " Whether the sum mentioned in an agreement to he paid for a breach, is to be treated as a penalty or as liquidated and ascertained damages, is a question of law, to be decided by the judge upon a consideration of the whole instrument" (n). This question is not concluded nor much affected by the mere use of the terms " penalty " or " liquidated damages " in the agreement (o) . In oases where it has been expressly declared in the agreement " that the sum shall be liquidated and ascertained damages and not a penalty or penal sum," or in other terms equally strong, the Court has held the payment to operate as a penalty, and has restricted the remedy to the damages actually incurred (p). In other cases where the parties have used the word "penalty," which prima facie imports forfeiture rather than damages, the Court has held that the sum was to be considered as liquidated damages and recoverable in full (q). Bonds present no difficulty as regards the penal sum in which the obligor is bound, the form of the instrument clearly denoting that it is a penalty for securing the agreement expressed in the condition ; and the plaintiff is restricted both in equity and by statute to the recovery of the damages actually sustained by breaches of the condition (;■) . But if the condition of the bond fixes a sum to be paid on a breach, the question may arise respecting that sum, whether it is to be treated as liquidated damages or a penalty, and must be decided upon the same principles as in any other form of contract (s). (m) See ante, p. 934 ; Woodward t. Gyles, 2 Vern. 119; Elphinstone v. Monkland Co., L. B. 11 Ap. Ca. 332. (n) Wilde, C. J., Sainter v. Fer- guson, 7 C. B. 727. {ft) Bramwell, B., Betts v. Burch, 4 H. & N. 511 ; 28 L. J. Ex. 271 ; per cur. Law v. Bedditch, (1892) 1 Q. B. 132. {p) Kemblev. Farren, 6 Bing. 141 ; Borner v. FUntoff, 9 M. & W. 678 ; Mebulell v. Schell, 4 C. B. N. S. 97 ; 27 L. J. C. P. 146 ; Re Newman, L, E. 4 C. D. 724 ; 46 L. J. B. 67. (•). If iaterest is not expressed ia the bill or note, it is recoverable only as damages and from the maturity of the instrument (s) ; and if the instrument is payable on demand interest is recoverable only from the time of demand, or from the commencement of an action, which operates as a demand (^). The drawer or indorser of a bill or note can be charged with interest as damages only from the time of his receiving notice of dis- honour (i(). But a person who guarantees payment of a bill or note without being a party is chargeable with all interest due upon it to the party guaranteed (x) ; and with- out notice of dishonour (y) . — Upon a contract to give a biU. Contract or note, or to pay by a bill or note, iaterest is recoverable in or note. the same manner as if the bill or note had been given (s) . Where goods are sold and delivered to be paid for by bill and no bill is given, the interest which would have been payable upon such bill may be recovered as part of the price of the goods (a) . And where money is lent upon the intended security of a bill of which the acceptance is refused, interest is payable upon the loan (b). A bond in a penal sum with a condition for the payment interest on of a less sum carries interest as damages for breach of the 2 B. & Aid. 308 ; Keetie v. Keene, 3 («) WaXker v. Barnes, 5 Taunt. 0. B. N. S. 144 ; 27 L. J. C. P. 89. 240 ; see Wmdle v. Andrews, 2 B. & ()•) Fer cur, Moffey t. Greenwell, 10 Aid. 696. A. & E. 224 ; Richards t. Sichards, [x) Ackerman v. Ehrensperger, 16 2 B. & Ad. 447; SopperY. Sichmond, M. & W. 99 ; see Hare v. Richards, 1 Stark. 507. 7 Bing. 254. [s) Cameron v. Smith, supra; see («/) See ante, p. 662; Walton v. Oantt V. Mackenzie, 3 Camp. SI. Mascall, 13 M. & W. 452. {t) See ante, pp. 742, 858 ; Piercer. (z) Sutton v. Morgan, 5 Taunt. 768 ; Fothergill, 2 Bing. N. C. 167 ; Re Lowndes v. Gollens, 17 Ves. 27. Serefordshire Banking Co., L. R. 4 («) Marshall y. JPoole, 13 East, 98 ; Eq. 250 ; 36 L. J. 0. 806 ; Re East Farr v. Ward, 3 M. & "W. 25 ; Davis of England Banking Co., L. R. 4 Ch. v.jS'mj/!lA,8 M:.& W.399; ante, p.911. 14 ; 38 L. J. C. 121. (i) Benton v. Rodie, 3 Camp. 493 496 ; Rhoades v. Selsey, 2 Bear. 359.' 3p2 948 INTEREST. Pabt V. condition ; because tlie obligor is indebted in the wbole penal sum unless he avoids it by performance of the condition, and upon breach of the condition he can obtain relief from the penalty only upon equitable terms, or under the statutes to that effect, according to which interest is payable; but no greater sum is recoverable for the debt and interest than the amount of the penalty (c). Payment and acceptance of the debt ^os^ diem bars an action on the bond as if made according to the condition, by the statute 4 & 5 Anne, c. 16, and pre- cludes recovery of interest for the delay in payment (d). A. single bond without any condition of avoidance is a mere debt, which carries no interest (e). A judgment recovered upon a bond carries interest, independently of the bond, and is not limited by the penalty (/). Interest on In mortgages containing a covenant to pay the principal ages. ^^1^^ yf]^ interest at a certain rate on a certain day, if no interest is expressly stipulated on default of payment, interest after the day cannot be claimed under the covenant; but upon the presumed intention of the parties that the mortgage should bear interest during its continuance, it is an established practice to give interest by way of damages, and presump- tively, but not necessarily, at the covenanted rate {g) ; if that rate is excessive it will be reduced to the usual commercial rate (/«) . And it is a settled rule of practice that after default of the mortgagor the mortgagee is entitled to have six months' notice of payment or six months' interest as a con- dition of redemption (j). — The same principles apply to an equitable mortgage by deposit of deeds, with an agreement to execute a legal mortgage for the debt and interest (^•).; [c] See ante, p. 934 ; Farquhar t. W. 248 ; Morgan v. Jones, 8 Ex. 620 ; Morris, 7 T. E. 124; Bayley, J., 22 L. J. Ex. 232; see Gordillo t. Cameron v. Smith, 2 B. & Aid. 308 ; Wcguelin, L. R. 5 C. D. 287 ; 44 see Cross v. Bedingjield, 12 Sim. 35. L. J. C. 691 ; see post, p. 955. [d] Dixon -v. Parkes, 1 Esp. 110; (A) TFalliiiglon y. Cook, iT Jj. J.C. see ante, p. 764. 608 ; post, p. 955 ; Se Roberts, L. R. [e] Sogan v. Page, 1 B. & P. 337 ; 14 C. D. 49 ; Mellersh v. Sroum, Poster v. JFeston, 6 Bing. 709 ; see L. R. 45 C. D. 225 ; 60 L. J. C. 43. ante, p. 946. [i) Smith v. Smith, (1891) 3 Ch. (/) M'Clure v. Bunkin, 1 East, 560 ; 60 L. J. C. 694. 436 ; sa&post, p. 953. (/.■) Ex p. Fiirk-r, L. R. 17 C. D. (g) Price v. G. IT^. Ey., 16 M. & 191. INTEREST. 949 A deposit of deeds to secure a loan of money without any Chap. i. further agreement carries interest ; but not the same rule as to — — — ^ six months' notice or interest for redemption [l). It is some- times provided in a mortgage that in default of punctual pay- ment of the agreed interest a higher rate of interest shall be charged ; or that a lower rate of interest shall be accepted if paid pvmctually (rn). Interest is payable upon the purchase money under a con- interest on tract of sale of land from the time for completion, or from money, the time of the vendor making a good title, if there is delay in payment ('«). And interest is payable upon the lien for unpaid purchase money from the time for the purchaser taking possession ; provided a good title is then made (o) . Interest is also payable upon the lien for the return of a deposit or of purchase money which arises upon a rescission of the contract of sale (|j) ; or during delay in completion by the vendor {q). Interest upon a Hen is given at the rate of four per cent, though a higher rate is stipulated in the con- tract for a breach in not completing (r) . Interest may be chargeable as damages by the statute Interest by 3 & 4 Will. ly. 0. 42, s. 28, which enacts " that upon all '*''*'**''■ debts or sums certain, payable at a certain time or otherwise, the jury, on the trial of any issue or any 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 certain 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 (1) Re Kerr's Policy, L. R. 8 Eq. L. R. 27 C. D. 6U ; 54 L. J. C. 51 ; 331 ; 38 L. J. C. 539 ; Fitzgerald's Games v. Bonnor, bi L. J. C. 521. Ti7(S. By. v. S. E. £y., supra. INTEREST. 951 payable " two months after the ship's report inwards " («) ; Chap. i. the price of goods sold to be paid in cash on delivery (5). — — - The debt or liability must appear in the written terms ; a written letter asking for a loan of money, acceded to by lending the ment." money, is not a debt payable by virtue of a written instru- ment within the statute, because it is not the writing but the money lent in compliance with it which creates the debt (c). — A written demand of interest is sufficient, if it indicates the Demand of debt, though without stating the amount; and though it claims interest from a prior date and without expressly limit- ing it until the term of payment (d) . An account delivered for goods supplied with a charge for interest, though not objected to and money paid on account, is not sufficient to support a claim for interest by agreement or under the statute ; nor is an account for goods with the heading " Five per cent, interest charged after twelve months' credit" a sufficient demand of interest upon the items of the account within the statute (e) . A notice of action claiming interest is a sufficient notice of claim from the date of the notice (/). But a writ of summons in the action indorsed with such claim is not a sufficient notice for the recovery of interest, because not made before action (g) ; nor is a claim made in an answer to a suit sufficient (A). — The calls made upon shares in a Calls on company giving a certain time for payment are a debt within the statute ; but the payment and rate of interest are usually provided for in the articles of association (i) . Calls made upon a contributory in the winding-up of a company payable at a certain time are debts within the statute upon which interest may be allowed (/«) ; but they are not subject to the (a) Merchant Shipping Co. v. Armi- (e) Me Lloyd Edwards, 61 L. J. C. 22. tane, L. B. 9 Q. B. 114; 43 L. J. (/) See Hdioards v. Great Western Q. B. 24. My., 11 G. B. 588 ; 21 L. J. C. P. 72. (i) See London C. i- D. Ry. v. S. JE. {g) Bhymney My. y. Ehymney Lron Ity., supra ; overruling Luncomle v. Co., L. R. 25 Q. B. D. 146 ; 59 L. J. Briqhton Club, L. K. 10 Q. B. 371 ; Q. B. 414 ; see Lnsley v. Jofies, L. E. 41 L. J. Q. B. 216. 4 Ex. D. 16 ; 48 L. J. Ex. 222. [c) Taylor v. Eolt, 3 H. & C. 462 ; {h) Ward v. Eyre, supi-a. 34 L. J. Ex. 1 ; see ante, p. 162. (i) See Stoclcen's ease, L. K. 3 Ch. (d) Mowatt v. Lord Londesborough, 412; 37 L. J. C. 230. 4E. &B. 1; 23L. J. Q.B.177; Gealce (k) Barrow's case,'L.'R.Z Oh..1ii; 44 L. J. 0. P. 315. 38 L. J. 0. 15. 962 INTEREST. paetv. provisions for interest or other conditions of payment of original calls (l). The liquidator in making calls may give a notice within the statute of the rate of iaterest claimed ; and in the ahsence of such notice iaterest will be aUowed at the usual commercial rate {ni). Interest on judgments. Interest on costs. County Court and foreign Judgments. By the statute 1 & 2 Yict. c. 100, s. 17, " every judgment shall carry interest at the rate of four pounds per centum per annum from the time of entering up the judgment until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment." And by s. 18, " all decrees and orders of courts of equity and all rules of courts of common law, whereby any sum of money, or any costs, charges, or expenses shall be payable to any person shall have the effect of judgments in the superior courts of common law, and the persons to whom any such moneys, or costs, charges, or expenses shall be payable shall be deemed judg- ment creditors within the meaning of this Act." The entry of the judgment is dated as of the day on which the judg- ment is pronounced ; and the judgment takes effect from that date {n). And in the case of an appeal interest is allowed for such time as execution is delayed by the appeal ; \mles8 the com-t orders otherwise (o). — The above statute applies to a judgment for costs against the defendant or against the plaintiff ; and the interest upon costs is charged, not from the taxing master's certificate but from the date of the judgment {p>). But the statute has no application to a judgment ordering costs to be paid out of a fund; nor is interest payable under such order without a direction ia the order to that effect (q). — The statute does not apply to County Court judgments ; they do not carry interest ; but they may {I) Re Welsh Flunnel Co., L. R. 20 Eq. 360 ; 44 L. J. C. 391 ; Re Cordova Gold Co., (1891) 2 Ch. 680 ; 60 L. J. C. 701. (m) LintoU's case, L. E. 4 Eq. 184 ; 36 L. J. 0. 510; Re Welsh Flannel Co., supra. (n) Order XLI. r. 3 ; and see Order XLII. r. 16. (o) Order LVIII. i. 19; see i««- cash. ^- Torhsh. Ry. v. Gidlow, L. E. 7H. L. 528; 43 L. J. Ex. 1. {p) Re London Wharf Co., 54 L. J. C. 1137. [q) Ait. -Gen. v. Nethercote, 11 Sim. 529 ; Re Marsden's Estate, L. E. 40 CD. 475; 58 L.J. C. 260. INTEREST 953 in certain eases be removed into the High Court (r). Interest Chap. i. . Sect IV" is not allowed upon a foreign judgment debt, unless it forms '- — '-■ part of the judgment (s). The judgment includes all the interest payable under the interest contract or as damages up to the date, and not merely to the after judg- commencement of the action (t). The judgment then merges ™®'^*" the debt, and interest continues payable only upon the judg- ment and at the statutory rate at four per cent., though the original debt carried a higher or different rate of interest (;«). Upon the same principle a judgment recovered on a bond debt carries the statutory interest, irrespectively of the interest stipulated ia the bond and of the amount of the penalty (v) . And a creditor with a warrant of attorney to enter up judgment on a certain day for a certain sum with interest is allowed interest at four per cent, and no more from the day for entering judgment («). Interest upon the judgment will cease to run after a tender of the amount ; or after payment into Court, from the time when the judgment creditor might have taken it out (y) . In the bankruptcy of the debtor, the creditor may prove interest his debt with the interest reserved or agreed for up to the iuptc". " date of the receiving order (s). And by the Bankruptcy Act, 1883, 2nd sched. r. 20, on any debt or sum certain whereon interest is not reserved or agreed for, the creditor may prove for interest at a rate not exceeding four per cent, per annum to the date of the order ; but upon the same conditions upon which interest is allowed on such debts by the above-cited statute 3 & 4 Will. lY. c 42, s. 28 (a).— By the Act, 1883, s. 40 (4), it is provided that " all debts provable in the (»•) The Queen v. JSssex Go. CL, Fewings, L. K. 25 C. D. 338; 53 L. R. 18 Q. B. D. 704; 56 L. J. L. J. 0. 545. Q. B. 315 ; see ante, p. 105. (») M'Clure v. Dunkin, 1 East, (s) Atkinson v. Braybroolce, 4 Camp. 436 ; ante, p. 948. 380 ; see Arnott v. Eedfern, 3 Bing. [x) Cook v. Fowler, L. R. 7 H. L. 353. 27 ; 43 L. J. C. 855 ; ;)os<, p. 955. (t) Robinson y. Bland, 2 Burr. [y] Sinclair v. Great Fastern Si/., 1087; see KiM v. Walker, 2 B. & L. R. 5 C. P. 391; 39 L. J. 0. P. 224. Ad. 705. (s) See ante, p. 886. (m) Se Furopean Central Ry., L. R. [a] See ante, p. 949. 4 C. D. 33 ; 46 L. J. C. 57 ; Fx p. 954 INTEREST. PabtV. bankruptcy shall be paid ^an_p«.ssM." And (6) "If there is any surplus after payment of the foregoing debts, it shaE. be applied in payment of interest from the date of the receiving order at the rate of four pounds per cent, per annum on all debts proved in the bankruptcy." The Bankruptcy Act, 1890, s. 23, further provides that on proof of a debt which includes interest, for the purposes of dividend, the interest shall be calculated at a rate not exceeding five per cent. ; but " without prejudice to the right of a creditor to receive out of the estate any higher rate of interest to which he may be entitled, after all the debts proved have been paid in full." Future A Creditor cannot prove for interest accruing due after the receiving order; except in the case of a surplus as above provided {b). But in the proof of a debt payable at a future time, with interest in the meantime, the interest is provable as against the rebate deducted from the debt for pre- sent proof under the Act, 1883, sched. 2, r. 21 (c). A secured creditor cannot charge his security with future interest and thereby increase the proof for the balance of principal (d). And an annuity given for a loan at a certain rate of interest is substantially additional interest for the use of the money, and cannot be proved for after the date of the order (e). In the case of the bankruptcy of joint and several debtors a creditor can get no interest accruing after the receiving order until all the creditors both of the joint and several estates have been paid their debts in full (/). The rules of bank- ruptcy apply to interest upon debts in the winding-up of companies ((/). Eate of The rate of interest in measuring damages depends upon the value of money with reference to the contract and the use to which the money is applicable ; and there is no differ- (J) ISx p. Bath, L. R. 22 C. D. 450. {c) Exp. Soiuison, 31 L. J. B. 12 ; (c) lie Browne S; TTiiit/rovi; (1891) 2 see &: p. Bath, L. R. 27 C D 509 ' Q. B. 574 ; 61 L. J. Q. B. 15 ; see (/) Ex p. Fwdlay, L. E. 17 C D ante, p. 887. 334 ; 50 L. J. C. 696. [d] Exp. lubbocJc, 32 L. J. B. 58 ; (g) Re IFarrant Finance Co L R Re Savin, L. R. 7 Ch. 760 ; 42 L. J. 4 Ch. 643 ; Re Intet nat. Contract Co B. 15 ; Se London SoteU Co., (1892) L. R. 13 Eq. 623 ; 41 L. J 373 W. N. 0. INTEEEST. 955 ence in law and equity in this respect, except as to the Chap. i. subjects of jurisdiction (A). The rate of interest is fixed in '- — - general hy the practice of the Court, but subject to varia- tion with change of circumstances («) . — "Where the contract Contract expressly fixes a rate of interest up to the time of payment, the same rate is generally, but not necessarily, allowed for measuring the damages for non-payment, being the value of money as agreed by the parties themselves {k) ; and the same inference is drawn from the parties having agreed upon the same rate of interest upon former similar transactions (/) . Thus the drawer of a bill payable with interest at ten per cent, twelve months after date, was held to be chargeable after dishonour with interest at the same rate (m). But where a mortgagor covenanted to pay the mortgage debt at the end of twelve months with interest to that date at the rate of ten per cent, per annum, the interest allowed as damages after the day of payment was assessed at the rate of five per cent, only (w) ; and where transactions of loan with expectant heirs or with persons in fiduciary relation are set aside by the Court on account of extortionate interest, the lender is allowed only an ordinary rate of interest upon the repayment of the money lent (o). Upon mercantile instruments, as bills of exchange and Mercantile promissory notes, the usual rate of interest as damages is dealings, five per cent. ; and the same rate is generally allowed in mercantile and in industrial and speculative transactions (|j) ; as on money expended in winning coal (q) ; on the value of cargoes of merchandise wrongfully detained (r) ; on money (h) Xfptm T. Ferrers, 5 Ves. 801 ; (m) Keene v. Keene, 3 C. B. N. S. Grant, M. E., Loiondes v. CoUens, 17 H4 ; 27 L. J. 0. P. 89. Ves. 29. W -K« Roberts, L. E. 14 0. D. 49 ; (j) Jessel, M. E., He Eolerts, L. E. see WalUngton v. Cook, 47 L. J. 0. 14 C. D. 62 ; Kekewich, J., Capel v. 508. Sims Co., 57 L. J. C. 718 ; Kay, J., (o) See ante, p. 355 ; Beymn v. Me Metrop. Coal Ass., 59 L. J. C. 284 ; Cook, L. E. 10 Ch. 889. London C. ^-D.Ei/.y. S. E. My., (1892) {p) See ante, p. 946 ; Kay, J., Se 1 Ch. 120. Metrop. Coal Ass., supra. ) ; an agreement for a lease for lives not named (q) ; or to a lessee not named (r) ; an agreement for a lease of mining rights of which the area is not defined (s). A contract for a lease stipulating that the house should be " handsomely decorated according to the present fashion," ■was held too uncertain for specific performance {t). Where a (k) Ld. Blackburn, Zau'riev. Lees, (p) Blore v. Sutlm, 3 Mer. 237 L. B. 7 App. Cas. 37 ; 51 L. J. C. Clinan v. Cooke, 1 Sch. & Lef . 22 209. Boiling v. Mvans, 36 L. J. C. 474 (?) Pegler v. White, 33 Beav. 403 ; Marshall v. Berridge, L. E,. 19 C. T>. 33 L. J. C. 569. 233 ; 51 L. J. C. 329 ; aesSoek Cement {in) See ante, p. 529 ; Groves v. Co. v. Wilson, 52 L. J. C. 214. Groves, 3 T. & J. 163 ; Ee Lucan, ((). But an agreement to transfer " part of an estate " was enforced, upon evidence of the part intended (x) . Upon this principle the Court refuses to compel a purchaser to take a doubtful title depending upon the construction of deeds or wills or other documents (y). And a party who has insisted on one construction of an obscure document is not afterwards allowed specific performance according to the opposite con- struction (2). — Upon the same principle the Court refuses to execute contracts of which essential terms are left to be determined by reference to, or are subject to the approval or decision of third parties (a). "A bill seeking that would be 2}ro tanto a biU to enforce the specific performance of an agreement to refer to arbitration ; a species of bill that has never been entertained" b). But where the terms of an agreement are complete, a provision therein for the arbitra- tion of differences is no objection to specific performance (c). And the Courts will specifically enforce an agreement to execute a deed " with usual clauses " or " with usual cove- nants " ; meaning such as are usual according to the practice of conveyancers {d) . The Court will not grant specific performance under circumstances which would render it useless : as the execu- tion of a lease after the expiration of the term ; unless the execution is still necessary to secure some right of the plaintiff (e). The Court will not enforce the execution of a (m) Pearee v. Watts, L. E. 20 Eq. 492 ; ii L. J. C. 492 ; see Stuart v. London ^- N. W. Rij., 1 D. M. 4 a. 721; 21 L. J. 0. 460. {x) Chattock v. MuUer, L. E. 8 C. D. 177. (y) See ante, p. 716. (z) Marshall v. Berridge, L. R. 19 0. D. 233; 51 L. J. C. 329. {a) See ante, p. 822. (J) Grant, M. R., Oourlay v. Duke of Somerset, 19 Ves. 429 ; South Wales My. T. Wythes, 6 B. M. & G. 880 ; 24 L. J. C. 87 ; see ante, p. 822. (c) Hart T. Eart, L. K, 18 C. D. 670; SOL. J. C. 697. (rf) Sart V. Hart, supra ; Hairison V. Harrison, 56 L. J. P & D. 76. («) Xesbittv. Meyer, 1 Swanst. 223; see Wilkinson v. Torkiiiyton, 2 T. & C. Ex. 726 ; Waltei's t. Northern Coal Co., 5 De G. M. & G. 629. APPLICATION or SPEJIFIC PERFORMANCE. 987 lease, by the terms of wLioh the lessee would have already chap. ii.' incurred a forfeiture of which the lessor might avail him- " L self (/). Upon this principle the Court refuses specific performance of covenants restricting the use of land, which are intended for the benefit of adjoining land, as by keeping open the view or regulating the style of building or the carrying on of trades, where by subsequent alterations in the adjoining land, made by the covenantee or with his consent, such restrictions have become useless [g). The remedy for a breach of contract by specific perform- Specific ance necessarily imports some compensation, nominal or sub- ance with stantial, for the defect in time or manner of the performance s^tiOTi''' which constitutes the breach. And the Court of Chancery, though it exercised no original jurisdiction to award damages, strictly so called, yet in exercise of the jurisdiction to give specific performance awarded supplementary damages or compensation for deficiencies in the performance decreed- Under the Judicature Acts, the High Court has jurisdiction to give specific performance with compensation or damages, as the case may require, according to the principles formerly applied in the Courts of common law and in the Court of Chancery {h). In the exercise of the jurisdiction of specific performance, Compen- so long as the contract can be substantially carried out, the delay, time is generally considered as not being of the essence of the contract, and mere delay is immaterial («). The principle of the jurisdiction is to administer the rights of the parties as if everything had been done which ought to have been done at the time and in the manner agreed. As between vendor and purchaser, the land sold is treated as the property of the purchaser, and the purchase money as the property of the (/) See ante, p. 984. 54 L. J. C. 1. (g) Bedford v. British Museum, 2 (h) See ante, pp. 748, 959 ; Pro- M. & K. 552 ; Roper t. Williams, thero t. Phelps, 7 D. M. & a. 722 ; T. & R. 18 ; Peek \. Matthews, L. K. 25 L. J. C. 105. 3 Eq. 515; German v. Chapman, (i) See ante, p. 725; and see the L R. 7 C. D. 271 ; 47 L. J. C. 250 ; Judicature Act, 1873, s. 25 (7). Sayers v. CoUyer, L. K. 28 C. D. 103 ; 988 SPECIFIC PERFORMANCE, Paet Y. Time essential. vendor from the time for comiiletion {k). The vendor re- maining in possession after the time for completion is bound to account to the purchaser for the rents and profits; and the purchaser retaining the purchase money is hound to pay interest to the vendor ; thus both parties are compensated for delay in performance (l). The purchaser is also entitled to compensation for deterioration of the property from want of reasonable care during the delay (in) ; and for the loss of a contract to let to a tenant for immediate possession («). — Time may be made of the essence of the contract by express stipu- lation or by notice given to that effect ; and the subject of the contract may make it essential : as where a house is pur- chased for immediate residence or for immediate use in a trade or business ; and in sales of annuities, reversions, and subjects of wasting or fluctuating value ; in which cases specific performance is refused if delay has frustrated the Limitation object of the Contract (o). — The Court also acts by analogy "^ ^ with the principle of Statutes of Limitation in refusing relief upon the ground of lapse of time ; and generally " specific performance is relief which the Court will not give, unless the parties seeking it come as promptly as the nature of the case will permit " (p). Compen- sation for defective perform- ance. If a contract can be substantially performed, specific per- formance may be given with compensation for defects of quantity, or quality, or title, or any other matter which admits of it {q). And the principle appHes on both sides of the contract ; against a vendor who is compelled to perform {k) Eldon, L. C, Selon v. Slade, 7 Ves. 274 ; 2 W. & T. L. C. 6tli ed. 542 ; Jeasel, M. E., Lysaght v. Edwards, L. E. 2 C. D. 506; 45 L. J. C. 559 ; see post, p. 1080. IJ) Phillips V. Silvester, L. E. 8 Ch. 173; 42 L. J. C. 22S ; Metro- politan liij. y. Defrics, L. E. 2 Q. B. D. 387 ; see Leggolt t. Metropolitan Ry., L. E. 5 Ch. 716; Egmont v. Rmith, L. E. 6 C. D. 469 ; 46 L. J. C. 356. {m) Phillips T. Silvester, supra; Clarke Y. Ramuz, (1891) 2 Q. B. 456; 60 L. J. Q. B. 679. («) Royal Bristol B. S. v. Bomash, L. E. 35 C. D. 390 ; 56 L. J. C. 840. (o) See ante, pp. 726, 727. (jo) Cranworth, L. C, £ads v. Williams, 4 ]). M. & G. 691 ; 24 li. J. C. 535 ; Mills v. Haywood, L. E. 6 C. D. 196 ; see anU, p. 834. (q) Thurlow, L. C, Bowlaiid r. Korris, 1 Cox, 61 ; Grant, M. E., Dyer v. Hargrove, 10 Ves. 507; Hahey t. Grant, 13 Ves. 77. APPLICATION OF SPECIFIC PEEFORMANCE. 989 the contract as far as he is able ; and against a purchaser Chap. ii. who is bound to accept a substantial performance. But it is _ : — L subject to different considerations in the two cases ; for the purchaser is entitled, if he pleases, to take performance with a defect, which the vendor would not be able to enforce against him. — A purchaser will be compelled to take compen- Compen- sation for a small part of the property sold which the vendor against is unable to convey ; provided that it is not material in rela- p^fg^j^g^i^' tion to the whole property (r). And he will be compelled to subject take compensation for a defect in the described quantity or acreage ; provided the defined property can be conveyed ; though a large defect of quantity may become sufiiciently material to entitle the purchaser to refuse the whole («). Where land was sold with an express condition for compen- sation the purchaser was compelled to take the defined land with compensation for a deficiency of acreage of a large amount {t). But a condition of sale excluding compensation was construed as applying to slight errors of description only, and not as excluding the purchaser from compensation for errors so great as to be attributable to carelessness (m) . "Where certain defined land was sold as " containing by estimation" forty-one acres, and it was found on measurement to contain thirty-five only, the purchaser was compelled to take it without compensation, because " estimation" did not import a measurement {x) . In the case of mere deficiency of quantity the compensation is presumptively to be measured by the proportion of the price due to the defective quantity (y). Compensation is also allowed in specific performance for de- fects of quality and condition, as compared with the descrip- tion in particulars of sale ; in regard to repair of buildings (r) M' Queen y. Farguhar, 1 1 Ves. (u) Whittlemore v. Whittlemore, L. 467. R. 8 Eq. 603; 38 L. J. C. 17; (s) Eldon, Hi. C, Oslaldiston y. Portmcm v. Sill, 2 Russ. 570 ; see Askew, 2 J. & W. 640 ; Leslie t. Re Terry and White, L. E. 32 C. D. Tompson, 9 Hare, 273 ; 20 L. J. C. 14 ; 65 L. J. C. 345. 561. [x) Wineh v. Winchester, 1 V. & It) Fnimlt V. Solmes, L. E. 42 B. 375; Joliffe v. Baker, L. R. 11 C. I). 150; 68 L. J. C. 763; ante, Q. B. D. 255; 52 L. J. Q. B. 609; p. 721. see King v. Wilson, 6 Beav. 124. ((/) Bill V. Buckley, 17 Ves. 394. 990 SPECIFIC PERFORMANCE. Paet V. Material defect. Defect in tenure. or cultivation and state of land (z) ; or in regard to the rents and profits derived (a). — A defect in tlie property sold "which is material to the enjoyment of the whole does not lie in compensation, and is an answer to a claim for specific performance : as where a wharf was sold together with a jetty, which was essential to the wharf, and the jetty could not be conveyed {b) ; where the defect was a strip of land separating the rest of the land sold from a public road (c) ; or a wall which was sold as inclosing the property {d) ; or a yard which was sold as appurtenant to a house (e). And where the defective part was used as a brickfield and was essential to the rest of the property sold in order to protect it from the nuisance of brick-burning the purchaser was not compelled to specific performance with compensation (/) . — But where the purchaser could get the defective part by the exercise of statutory powers, independently of the con- tract, it was held that he was precluded from objecting to take the rest upon the ground merely of the essential defect, and he was compelled to specific performance with compensa^ tion (g). A purchaser will not be compelled to take land of different tenure than that contracted for ; as copyhold instead of free- hold or freehold instead of copyhold {h) . But a purchaser of land as freehold was compelled to take commuted copyhold which was scarcely different from freehold, with compensation for any difference in value [i). A purchaser who buys land described merely as " partly freehold and partly copyhold," is compelled to take the land as it is, without definition of boundaries or quantities of each (^•) ; and if the description (z) Dyer -v. JSargrave, lOVes. 505 Grant v. Munt, Coop. 173 ; Scott v. Hanson, 1 Buss. & M. 128. (a) Cann v. Cann, 3 Sim. 447 Powell V. Elliot, L. R. 10 Ch. 424. (o) Peers v. Lambert, 7 Beav. 546 see Thurlow, L. C, Howland v Norris, 1 Cox, 61 ; Poole v. Shert/oM, 1 Cox, 274. {e) Perkins v. Me, 16 Beav. 193 Arnold v. Arnold, L. R. 14 C. D 270. ((?) Breicer v. Brown, L. R. 28 C. D. 309; 54 L. J. C. 605. («) Dobell V. Hutchinson, 3 A. & E. 355. (/) Knatchbull v. Grueher, 1 Madd. 153. {g) Wells T. Chelmsford Loc. Bd., L. R. 15 C. D. 108 ; 49 L. J. C. 827. (h) See ante, p. 718. ((■) Price V. Macatilay, 2 D. M. & G. 339. (/c) Monro y. Taylor, 3 Mac. & G. 713. APPLICATION OF SPECIFIC PERFORMANCE. 991 gives the proportion of each, a variation in the proportion Chap. it. Sect. II. may be the subject of compensation (/) . A purchaser of freehold cannot be compelled to take a leasehold, however long ; or an estate of whioh a substantial part is lease- hold (m). But where a large estate was sold as freehold, and it appeared that two acres were held only from year to year, the purchaser was compelled to take the estate with compensation («). A purchaser of a leasehold term may be compelled to take the term with compensation for a slight deficiency in the duration of the term as described (o) ; but not an underlease, though for a term less by only a day or two, because the title is materially different from that of the original term {p). The Court will not compel the purchaser to take an estate Charges sold as tithe free, which is subject to tithe ; but where a trances, small portion of a large estate is subject to tithe, the pur- chaser may be compelled to take the estate with compensa- tion [q). The Court will also compel a purchaser to take compensation for quit rents, rent charges, and other fixed charges of small amount (r). — Easements exercisable over Ease- the land sold in general so far affect the enjoyment of the land as not to lie in compensation ; as in the case of land sold as building land which is found to have a public right of way over it (-s). A purchaser was not compelled to take land subject to the servitude of supplying water for the use of adjoining land (t) ; or land subject to restrictive covenants as to the use and occupation {u). Compensation is not allowed for a defect in the property as Defects described of which the purchaser had full knowledge at the purchaser. [T) Hudson T. Cook, L. E. 13 Eq. see Sowlandy. Norris, 1 Cox, 59. 420 ; 41 L. J. C. 306. (r) Ssdaile v. Stephenson, 1 S. & S. {m) Drewe v. Corp, 9 Ves. 368; 122; see a«!l«, p. 721. Fordyce v. Ford, 4 Bro. C. C. 494. (s) Dykes v. Blake, 4 Bing. N. 0. {n) Caleraft v. Roebuck, 1 Ves. jim. 463. 221. (0 Shackleton v. SutcUffe, 1 D. & (o) Eldon, L. C, Mortlock v. BulUr, Sm. 609. 10 Ves. 306 ; Ealsey v. Grant, 13 {u) Cato y. Thompson, L, E. 9 Ves. 77. Q- B. D. 616 ; Re Siggins and Hitch- {p) Madeley r. Booth, 2 De G. & man, L. R. 21 C. D. 95 ; 51 L. J. C. Sm. 718 ; ante, p. 718. 772 ; Ee Davis and Cavey, L. R. 40 C. [q) BinksY. Rohehy, 2 Swanst. 222; D. 601 ; 58 L. J. C. 143. 992 SPECIFIC PERFORMANCE. Paet V. time of contracting : as where the estate was described as being in a ring fence, and the purchaser had seen the estate and knew it not to be so («). But the doctrine of construc- tive notice does not apply between vendor and purchaser to obviate the effect of descriptions of the property, and repre- sentations made by the vendor (y). A purchaser was held entitled to abatement for a misrepresentation of quantity, though he was the tenant in possession at the time of the purchase ; because he would not necessarily know the measure- ment, and might rely upon the representation (s). The pur- chaser of premises in the occupation of a tenant is not bound to inquire the terms of the tenancy as against the vendor, and to take his purchase subject to it {«). And a purchaser of leasehold is not affected with notice of the terms of the lease so as to be compelled to take the premises subject to restrictive covenants contained in it (b). A purchaser who has contracted absolutely for a good title cannot be compelled to accept a title subject to defects or incumbrances, merely because he knew of them at the time of contracting (c). Compensa- A purchaser can compel the vendor to specific performance against of the Contract to the extent of his ability, with an abatement ven or. ^£ price or compensation for any deficiency in the perform- ance ; " speaking generally every purchaser has a right to take what he can get, with compensation for what he cannot get" (rf). Compensation for a deficiency of acreage is pre- sumptively measured by a rateable abatement of the price (e) ; but the purchaser may bind himself by the conditions of sale to take the measurement as stated and exclude compensa- tion (/) ; or the mistake of quantity may be such as to {x) Dyer v. Kargrave, 10 Ves. 505. Q. B. D. 616. [y) Caballero v. Senty, L. R. 9 Ch. (d) Turner, L. J., Snghes v. Jones, 447 ; 43 L. J. C. 635 ; see James v. 3 B. F. & J. 315 ; 31 L. J. C. 89; Lichfield, L. R. 9 Eq. 51 ; 39 L. J. C. Eldou, L. C, Paton v. Sogers, 1 V. 248. & B. 353. (z) IGHgv. Wihoii, 6 Benv. 12i. («) See ante, p. 9S9 ; lesUe v. Ja) CdbalUrov. Hentii, fiipra. Tumpsoii, 9 Hare, 273; 20 L. J. C. (/;) He Ddi'in ami Cai-ri/, L. R. 40 C. 561. X) 001 ; 68 L. J. C. 143. ( f) Cordiiigley v. Clieesibioiigh, 4 («) Cato V. Thompson, L, R. 9 D. F. & J. 379 ; 31 L. J. C. 617. APPLICATION OF SPECIFIC PERFOHMANCE. 993 exclude any inference of contract on the basis of the actual Chap. Ii. . . Sect II. quantity (g) . On the other hand, where there is a material '- — - excess in the acreage abov« the contract quantity, the pur- chaser may be refused specific performance unless he allows compensation to the vendor for the excess (h). A purchaser is allowed in some cases compensation for defective represen- tations made by the vendor as to the state of repair and im- provements on the property ; and the measure of compensation is the difference of value of the property if such representa- tions were made good (i) . In the case of a charge of money upon land sold free of incumbrances, the purchaser is entitled to have the charge paid off out of the purchase-money (k). Upon the same priuciple where a vendor, having only a Defect of particular estate or partial interest, contracts to sell the entirety, the purchaser may compel him to convey all his estate and interest and to allow compensation for as much as he cannot convey (/) : as an undivided moiety with an abatement of half the price (m) ; or a lease of an undivided moiety with an abatement of half the rent (m) ; or an estate with exception of the minerals, which had been reserved to a third party, with compensation for the exception (o). " If a person possessed of a term contracts to sell the fee, he cannot compel the purchaser to take, but the purchaser can compel him to convey, the term ; and the Court will arrange the equities between the parties " {p). So the purchaser of a fee simple may compel the vendor to convey a life estate, with compensation for the remainder (q) ; or to convey a (a) Durham v. Legard, 34 Beav. ()«) Hooper v. Smart, L. E,. 18 Eq. 611; 34 L. J. C. 589; see MeEenzie 683; JBaiky v. Fiper, 43 L. J. O. V. Hesketh, iT Jj. J. G. 231. 704; Sorrocks t. Eigby, L. R. 9 {h) Leslie v. Tompson, supra; see C. D. 180; 47 L. J. C. 800; see lie Orange and Wright, 54 L. J. C. Boursot v. Savage, L. R. 2 Eq. 134 ; 690. 35 L. J. C. 627 ; Naylor t. Gooiall, (i) Peacock v. Fenson, 11 Bear. 47 L. J. 0. 53. 356 ; Re Chifferiel, L. R. 40 C. D. («) Burrow v. Scammell, L. R. 19 45; '58 L. J. C. 263; aee ante, pp. C. D. 175; 51 L. J. C. 296; ante, 898, 980. P- 983. (k) Re JaeksonU Sale, L. R. 14 (p) Seaman v. Vawdry, l6Yea. 3S0. CD. 80I ; 49 L. J. C. 523. {p) Eldon, L. C, Wood v. Griffith, U) Eldon, L. C, Mortloek v. 1 Swanst. 54. Buller, 10 Ves. 316 ; Western v. Rus- (q) Barnes v. Wood, L. R. 8 Eq. ,ell, 3 V. & B. 187. 424 ; 38 L. J, C. 683. L. 3s 994 SPECIFIC PEEFORMANCB. Paet V. Specific, perform- ance with indemnity. remainder with compensation for a life estate (r). The pur- chaser of renewable leasehold was held entitled to specific performance with compensation for the right of renewal which was deficient (s). The purchaser of an estate sold as tithe free was held entitled to have the estate with compensation ■for tithes charged upon it ; but not to compel the vendor to purchase the tithes {t) . Where a husband contracts to sell an estate in which his wife has an interest, and she refuses to complete the sale, the husband is compelled to complete as far as he is able, with compensation for the interest of the wife (t<). But where husband and wife joined in selHng the wife's estate in fee simple, it was held that the husband could not be compelled to convey his marital rights in the estate separately, having contracted to sell the wife's estate only {x) . — The Court will not enforce a partial execution of a sale, where it would be prejudicial to other persons interested in the property, but not parties to the contract {y) ; nor against a vendor who is a trustee, in prejudice of the trust, though he may himself have a beneficial share in the property (z). A defect of title or other defect of performance may import a contingency of loss or disturbance which is not suitable for pecuniary compensation ; " and the proper compensation is an indemnity by which the loss, if it happens, wiU be made good; and if it does not happen there is no occasion for compensation " {a). The Court cannot compel a purchaser to take an indemnity or the vendor to give it, unless it forms part of the contract ; but the pm-chaser may claim it as a condition of accepting a defective performance ; and the vendor may submit to specific performance so far as he is able, with indemnity for the deficiency (5). In the case of a (>■) Nelthorpe^. Solgatc, 1 Col. 203 ; Sarlicf V. Cox, L. R. 4 C. T>. 464 ; 46 L. J. C. 62. (s) Fainter v. Kcwby, 11 Hare, 26 ; MiUigan V. Cooke, 16 Ves, 1. (f) Toddy. Gee, 17 Ves. 273. [u) IBarites v. JJ^ood, supra; Barker V. Co.e, sitpra. (x) Castle V. WUkinson, L. R. 5 Ch. 534 ; 39 L. J. C. 843 ; see Aylett T. Ashton, 1 M. & Cr. '105. {y) Lang-dale, M. R., Thomas v. Deruiej, 1 Keen, 747 ; see Graham v. Olhcr, 3 Bear. 124. (z) Kaylor v. GooiaXl, 47 L. J. C. 63. (a) Eldon, L. C, JSi/llyan v. Cooke, 16 Ves. 13. (i) Eldon, L. C, Balmanno v. Liimley, IV. & B. 226 ; Aylett v. APPLICATION OF SPECIFIC PERFOKMAKCB. 995 contract of sale of leasehold, with a covenant for renewal Chap. il. , Sect. II. which could not be enforced to the extent stated in the '■ — - particulars of sale, the purchaser was decreed to have specific performance, with a security to be settled by the master to indemnify him against the risk of not obtaining the renewal contracted for (c). In the case of a rent charged upon land, part of which was afterwards sold as free from incumbrance, indemnity was given by an equivalent charge upon other land contingent upon the rent being levied out of the land sold {d) . Upon a purchase in fee simple free of incumbrance, indemnity against the claim of dower by the vendor's wife was given, by the Court ordering a sufficient portion of the purchase money to be set aside to meet the contingency (e). Where leasehold was sold, which was found to be subject to forfeiture under the covenants in a superior lease, the Court refused specific performance, upon the ground that the defect was not the proper subject of compensation or indemnity, because the purchaser was liable to be entirely deprived of the property (/). Under an agreement to grant a lease with usual covenants, the lessor having no title to the minerals, the lessee was held entitled to have a lease executed with an absolute covenant for quiet enjoyment, in order to indemnify him against risk of loss from the mines being worked during the term (g). Ashton, 1 M. cfe Cr. 114; see Wood v. (e) Wilsons. Williams, 3 Jur. N. S. Vernal, 19Ves.220; SidgwaijY. Gray, 810. 1 Mac. & G-. 109. (/) Filcles v. Sooker, 3Madd. 193 ; (e) MilliffanT. CooJce, supra. see Nouailley. Flight, 7 Beav. 521. id) Halsey v. Grant, 13 Ves. 73 ; {g) Onions v. Cohen, 2 H. & M. Sorniblow v. Shirley, 13 Ves. 81. 354 ; 34 L. J. C. 339. 3s2 996 PART VI. ASSIGNMENT OF CONTRACTS. Chaptek, I. PEINCIPLES OF ASSIGNMENT. PAGE Assignment at common law — in equity — ^under the Judica- ture Act— contracts incapable of assignment — foreign contracts '• 996 Eemedies of assignee — specific performance 1000 Voluntary assignments and trasts— donatio mortis causd . . 1001 Form of equitable assignment — notice to debtor — effect of notice on priority — form of notice — notice to agent, co- debtor or co-trustee 1004 Assignee takes subject to equities against the assignor — equities chargeable — equities ban-ed by conditions of the debt — equities barred by conduct of debtor 1010 Assignment of debt by new agreement of the parties — assignment of hability for debt ■ 1013 An assignment of the rights and liabilities arising out of contracts may occur : — by act or agreement of the parties ; — by the assignment of estates and interests in land to which covenants running with the land are annexed ; — by marriage operating upon the contracts of the wife ; — by death transferring the estate of the deceased to his represen- tatives ; — by bankruptcy operating as an assignment in law for the benefit of creditors. Assign- By the rule of common law choses in action, under which TOmmon cl*^^ ^^^ included rights arising from a contract, and rights ^^^- of action for breach of contract, are not assignable by act of PRINCIPLES OF ASSIGNMENT. 997 the parties («) ; and it is not competent for parties, though Chap. i. contracting in express terms with " assigns," to dispense with the rule and render the right of action assignable at law (b). Exceptions occur to this rule with hills of exchange, which are negotiable by the law merchant or general custom of merchants ; and some other exceptions occur by custom and some by statute (c) . The Court of Chancery, in the exercise of equitable juris- Assign- diction treated the assignment of a legal chose in action as m^ty. importing an agreement that the assignee should use the name of the assignor in proceedings at law to realize the chose in action ; which agreement, if supported by a valuable consideration, the Court would specifically enforce. "The general rule is that a chose in action cannot be transferred at law at all, but that in equity it may be assigned, though the action at law must be brought by the assignee in the name of the original contractee. Equity will compel the contractee, if he has assigned the contract, to allow his name to be used for this purpose on an indemnity against costs "(f^). — And Effect in the Courts of law applied the same equitable construction of an assignment in the exercise of their summary jurisdiction over suitors, by setting aside or controlling any legal proceed- ings founded upon an intervention of the assignor in breach of his agreement to assign ; as a plea of release given by him to the debtor, or of payment by the debtor to the assignor, in fraud of the assignee (e) . The Courts of law also gave a right of action to the assignee for any such intervention of the assignor which operated in breach of his agreement (/). Now under the Judicature Acts express provision is made for the assignment of a legal debt or chose in action ; and the (a) Co. Lit. 214 a, 232 b; BuUer, J., 187 ; see Soto v. Dawson, 1 Ves. sen. Master v. Miller, i T. R. 340. 331 ; 2 W. & T. L. C, 6th ed. 796. (A) Ter cur. W'etherell t. Langston, {e) Legh v. Legh, 1 B. & P. 447 ; 1 Ex. 634 ; Jones v. Carter, 8 Q. B. see ante, p. 802. 134 ; per cur. Crouch v. Credit Fonder, (/) Gerard v. Lewis, L. R. 2 C. P. L R 8 Q B. 387 ; 42 L. J. Q. B. 30S ; 36 L. J. C. P. 173 ; see Aulton 191 T. Atldns, 18 C. B. 249 ; 23 L. J. (e) See post, p. 1016. C. P. 229 ; Me Patrick, (1891) 1 Ch, {d) Per cur. Crouch v. Credit Fonder, 82 ; 60 L. J. 0. 111. L. R. 8 Q. B. 380 ; 42 L. J. Q. B. 998 ASSIGNMENT OF CONTRACTS. Paet TI. rules and practice of the Courts of common law in protection of assignments are superseded in all Courts by the rules of equity {g). ment under ^^ *^® Judicature Act, 1 873, s. 25 (6) ," any absolute assign- the Judica- ment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law (subject to all equities which woiild have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor " ; but with the proviso that if the debtor has notice that such assignment is disputed by the assignor or any one claiming under him or of any other opposing claims he may require the parties to interplead or he may pay the money into Court. A voluntary assignment is within the Act ; a valuable con- sideration not being essential to support a legal assignment as against the assignor, or as against his debtor or trustee of the debt (/*). A debt payable at a future date or upon a con- tingent event is a chose in action and assignable within the Act : as an assignment of money becoming due for work in progress of completion (/) ; an assignment of future rent, contingent upon the continuance of the lease (/.■) ; an assign- ment of the assignor's present or future balance at his bankers ( /) . The assignment of a debt by way of mortgage to secure a smaller debt, with a proviso for redemption and [g) See Judicature Act, 1873, s. 25 (i) Bricc y. Bannister, L. E. 3 Q. (6), (11), supra. B. D. 569 ; 47 L. J. Q.' B. 722 ; see (/i) TFalkerv. Bradford ]ik.,l,.U. Western Wagon Co. v. JTcst (18921 12 Q. B.D. 511; 53L. J. Q. B. 280; 1 Ch. 271. Harding v. Harding, L. E. 17 Q. B. (k) Southu-eJl v. Scatter; 49 L. J. D. 442 ; 55 L. J. Q. B. 462. Ex. 356. [1) Walker v. Bradfork Bk., supra. Construc- tion of Act. principTjEs of assignment. 999 reconveyance, is an " absolnte assignment not purporting to Chap. I. be by way of charge only" -within the Act (m). And the assignment of a debt upon trust to receive the amount and after retaining a certain sum due to the assignee to pay the surplus to the assignor is an absolute assignment within the Aot(n). So an assignment of debts by several creditors to a trustee for collection, and payment rateably among the assignors (o). — The notice to the debtor or trustee required by Notice the Act may be given after the death of the assignor {p) . And dettor. it is not required that the debtor or trustee should accept the notice in the sense of agreeing to be bound by it (g). Some contracts are of a kind incapable of assignment either Contracts at law or in equity by reason of importing the consideration of assign- of personal skill or confidence : as the contract of an artist to ™ paint a picture, or of an author to write a book, or of a pub- lisher to publish a book ; which do not admit of the contractor substituting the skill or capacity or credit of an assignee (r). And a manufacturer of a special quality of goods, having accepted an order, cannot assign the order to another manu- facturer and entitle him by supplying his own goods to charge the customer (s). But a contract that certain work shall be done, or goods supplied, without regard to the persons engaged, is assignable ; and upon performance of all the conditions stipulated for, the assignee is entitled to the benefit of the contract ; as a contract to let railway wagons for a term of years and to keep them in repair during the term, for an annual payment (t). The same rules apply to the assignment of foreign con- Foreign . ■, . , , 1 .111 • 1 , contracts. tracts withm the realm, unless assignable by universal custom; (;k) National Troi: JBk. v. Sark, G. 223 ; 24 L. J. C. 143 ; Sole t. L. E.. 6 Q. B. D. 626 ; 50 L. J Q. Bradbury, L. R. 12 0. D. 886 ; 48 B. 437 ; Tancred v. Delagoa Bay Mi)., L. J. C. 673. L. E. 23 Q. B. D. 239 ; 58 L. J. Q. is) Per cur. British Wagon Co. v. B. 459. Lea, L. R. 5 Q. B. D. 152 ; 49 L. J. (n) Burlinson r. Sail, L. K. 12 Q. Q. B. 321 ; see Johnson v. Maylton, B. D. 347 ; 53 L. J. Q. B. 222. L. E. 7 Q. B. D. 438 ; 50 L. J. Q. (o) Comfort v. Belts, (1891) 1 Q. B. B. 753. 737 ; 60 L. J. Q. B. 656. [t) British Wagon Co. v. Lea, supra; (p) Walker v. Bradford Blc., supra. see Sobson v. Brmnmond, 2 B. & Ad. (q) Briee t. Bannister, supra. 303 ; Boiilton v. Jones, 2 H. & N". 564 ; ■ (r) Abinger, C. B., 8 M. & "W. 27 L. J. Ex. 117. 343 ; Stevens v. Benning, 6 D. M. & 1000 ASSIGNMENT OF CONTRACTS. PaetVI. as is the case with the scrip and bonds of foreign govem- ments issued as payable to bearer (m). Foreign contracts which are assignable and validly assigned abroad under foreign law are not within the rule, and the assignee may sue in his own right (x). And in general the assignment of debts and contracts is governed by the law of the country where the assignment is made (y). Remedies Specific perform- ance. The assignee of a legal debt or chose in action must pursue the remedy of his assignor, and in the Court and with the proceedings appropriate to the cause of action ; unless the circumstances of the case give him a special claim to the inter- vention of the Court in his own right (s). The assignee of a debt is considered as the real creditor for the purpose of pre- senting a petition in bankruptcy (a) ; also for the purposes of set-off by and against the debtor (J). The assignee of a judgment debt becomes entitled to put in force aU the remedies of the assignor upon the judgment ; as a judgment summons for committal under the Debtor's Act (c) ; and the attachment of debts due to the judgment debtor (d). But he is in no better position than the judgment creditor, where, as in bankruptcy, the consideration of the judgment may be inquired into {e) . — The assignee by giving notice to the party liable under the assigned contract may claim specific perform- ance to himself in his own right, where that remedy is applicable, as in the case of contracts of sale of land (/). A sub-purchaser of part of the land sold is not in the position of (m) Goodwin v. Sobarts, L. R. 1 762 Ap. Ca. 476 ; 45 L. J. Ex. 748 ; see L. R, post, p. 1036. Q. B. {x) Innes v. Dunlop, 8 T. R. 595 ; 17 Q. see LeeTf. Abdy, L. R. 17 Q. B. D. (S) 309. [c) (y) Alcock V. Smith, (1892) 1 Ch. L. J. 238. chett, (z) Hammond v. Messenger, 9 Sim. (d) 327 ; HosMns v. Holland, 44 L. J. C. Q. B. 273 ; James, L. J., Soxburghe v. Cox, (e) L. R. 17 C. D. 626; 50 L. J. C. 411. 772 ; see Bcrgmann T. Macmillan, (/) L. R. 17 C. D. 423. 217; («) Ex p. Cooper, L. R. 20 Eq. 503, 44 L. J. B. 126 ; Exp. Dearie, . 14 Q. B. D. 184; 54 L. J. 74 ; see Ex p. Blanchett, L. R. B. D. 303. See ante, p. 875. East End Bg. Son. v. Slacli, 60 Q. B. 359 ; but see Exp. Blan- supra. Goodman v. Robinson, L. R. 18 D. 332 ; 66 L. J. Q. B. 392. Me Deerhurst, 60 L. J. Q. B. Nelthorpe v. EColgate, 1 Coll. see Padwiek v. Piatt, 1 1 Bear. TBINCIPLES OF ASSIGNMENT. 1001 an assignee of the contract for this purpose; and notice of the Chap.i. suh-purchase does not prevent the vendor from completing the sale to the original purchaser according to its terms [g) ; nor can the sub-purchaser be charged by the vendor (li) ; and a conditional assignment of a contract of sale, as an agreement to assign upon request, is not available against the vendor, until the assignee has made a request and given notice of it to the vendor (i) . Upon the same principle the assignee of an agreement for a lease is entitled to specific performance ; but the lessor may be entitled to have the covenants of the lease executed and performed by the original party to the agreement, or to have security for the same (/r). And the lessor may object to grant the lease to the assignee upon the ground that he is bankrupt or insolvent or not a proper person to take it ; but he cannot object to grant the lease to a solvent and proper assignee upon the ground of the bankruptcy or insolvency of the assignor [l). The assignee of an agreement for a lease with a condition against assignment cannot compel the lessor to grant it, unless the lessor has waived the breach and consented to the assignment (m). An agreement for a lease passes to the assignee in bankruptcy of the lessee, who may assign it to a purchaser, who may have specific perform- ance against the lessor (w). A voluntary assignment is within the Judicature Act, Voluntary 1873, s. 25 (6) ; and if made by writing and with notice as mentsand therein required is effectual in law to pass the debt or chose *™^*^- in action and all legal remedies (o). But the Court does not enforce an assignment of a debt or chose in action which is not complete and effectual in law, unless it is supported by a {g) Craitree v. Poole, L. R. 12 Eq. 435 ; see O'Eerlihy v. Sedges, 1 Soh. 13 ; 40 L. J. 0. 468 ; see Femoick v. & Lef. 123. Bulman, L. B. 9 Eq. 165. {m) Weatherall v. Geering, 12 Ves. (h) Cutts V. Thodey, 1 Coll. 223 ; 504 ; Dowell v. Dew, supra ; see Chadwick v. Maden, 9 Hare, 188 ; 21 Mlphinstone v. MonkUnd Co., L. R. L. J. 0. 876. 11 Ap. Ca. 332. (j) Shaw T. Foster, L. B. 5 H. L. (re) Buekland v. Papillon, L. E. 2 321 ; 42 L. J. 0. 49. Ch. 67 ; 36 L. J. C. 81 ; see post, [k) Dowell V. Dew, 1 T. & C. 345. p. 1046. \l) Crosiie y. Tooke, 1 M. & K. (o) Ante, p. 998. 431 ; Morgan v. Modes, 1 M. & K. 1002 ASSIGNMENT OF CONTRACTS. Pabt VI. valid consideration ; such an assignment is considered as a mere voluntary agreement for the assignee to use the name and the remedies of the assignor, and the Court never speci- fically enforces voluntary agreements, or completes imperfect gifts [p) : as a voluntary gift of promissory notes without indorsement, or without delivery [q) ; and the voluntary delivery of a hond, with the intention of passing the sums recoverable (r). If the transaction can be construed as a complete declaration of trust of the beneficial interest in the chose in action, the Court will enforce the trust against the party making it, though made voluntarily and gratuitously («). But the Court will not uphold the transaction as an implied declaration of trust merely on account of the imperfection and failure as a gift ; because the intention of giving nega- tives the intention of retaining as trustee {t). A covenant to settle certain specified funds upon certain defined trusts is S|ourity complete and will be enforced by the Court (if). — The pro- perty in a document which is the security of a debt, as a bond, debenture or policy of insurance, may be vahdly assigned and transferred separately from the debt ; in which case the party entitled to the debt may not be able to recover the document, whilst the party holding the document may not be able to recover the debt {x). And an assignment of a debt may be complete, though the secm-ities for it are not expressly assigned ; and if the assignor afterwards gets in the debts, he is accountable for the amount to the assignee (y). But it seems that a valid assignment of the debt would pre- (;;) Turner, L. J., Milroy r. Lord, L. J. C. 5S1 ; Siehards v. Selhridne, 4 D. P. & J. 274; 31 L. J. G. 798; L. R. 18 Eq. 11; 43 L. J. 0. 459)- see ante, pp. 529, 98.5. ScartUxj v. Mcliohon, L. E. 19 Eq. (?) Mkhardson y. Richardson, L. R. 233 ; 44 L. J. C. 277 ; Ue Breton's 3 Eq. 686 ; 36 L. J. C. 633. Estate, L. R. 17 C D 416 ■ 50 (r) i'rfiiffjY&v. /owes, IM.fe Or. 226. L. J. 0. 369. (s) Ex p. Pi/e, 18 Ves. 140 ; Fletcher («) Johnstone y.Mappin, 60 L. J. C. T. Fletcher, 4 Hare, 67; Kckcwich v. 241. Maniiinij, I'D. M. &a.n%; Richard- (.r) Barton v. Gainer, 3 H. & N. son V. Richardson, supra; see Farker 387 ; 27 L. J. Ex. 390 ; Rummens v. V. Stones, 38 L. J. C. 46 ; Kronheim v. Hare, L. R. 1 Ex. D 169 ■ 46 L J Johnson, L. R. 7 C. D. 60. Ex. 30. (d) Milroi/Y. lord, supra; TTarriner \y) Re Patrick, (1891) 1 Ch. 82- V. Soffcrs, L. E. 16 Eq. 340; 42 60 L. J. C. 111. PRINCIPLES OF ASSIGNMENT. 1003 sumptively carry witli it the property or the use of the docu- Chap. I. ments and securities necessary for its recovery (s) . The Court makes an exception of a donatio mortis caiisd, or Donatio an imperfect gift made in expectation and upon condition of eausd. death ; and the Court, if the security for a debt is actually delivered, completes the gift upon the death happening (a) : as the delivery of a bond with the above intention (i) ; or the deeds and securities of a mortgage debt (c) ; or a policy of insurance on life {d) ; or the VFritten receipt for a loan delivered by the creditor to the debtor with the intent to release the debt (c) ; or the deposit note of money at a bank (/). A cheque of the donor upon his banker is not a subject for a donatio mortis causa; being a mere order revoked by death (g) ; but if paid, or if negotiated for value before the death, the gift is complete and valid (h). So a promis- sory note of the donor passes no more than the right of action upon the note, and is not the donation of any debt or fund (?') . But the delivery of a promissory note, or a cheque, or bill of exchange of a third party, payable to the donor, and though drawn payable to order and not indorsed by him, may be the subject of a good donatio mortis causa (/.■). A receipt for stock and a certificate of stock, not being in themselves securities, are not subjects of a donatio mortis causa (/) ; nor Iz) See He Fatrick, (1891) 1 Ch 82; 60 L.J. C. 111. (a) Ward v. luriier, 2 Ves. sen 431; lWlite&T.L.C.,Cthed. 1058 Edioards r. Jones, 1 M. & Cr. 226 Moore v. Moore, L. R. 18 Eq. 474 43 L. J. C. 617 ; Se Dillon, L. E. 44 C. D. K ; 59 L. J. C. 420. (J) Snellgrove v. Sailij, 3 Atk. 214 Blount T. Siirrow, 4 Bro. C. C. 71 Gardner v. Darker, 3 Madd. 184. {c) Diiffieldv. Dlwes, 1 Bligh, N. S, 497. Id) Witt V. Amiss, 1 B. & S. 109 : 30 L. J. Q. B. 318 ; S. C, 33 Beav 619. (e) Moorer. Darton, 4 De Gr. & Sm, 517 ; 20 L. J. C. 626. if) Moore v. Moore, supra; Deal V. DeaTi, L. K. 13 Eq. 489 ; 41 L. J C. 470 ; and see De Mead, L. B. 15 C. D. 651 ; 50 L. J. C. 30 ; De Dillon, supra ; De Taylor, 56 L. J. C. 597 ; De Farman, 57 L. -J. C. 637. {ci) Tate V. Eilbert, 2 Ves. jim. Ill ; Hewitt Y. Kaye, L. R. 6 Eq. 198 ; 37 L. J. C. 633 ; Deak v. Beak, supra ; Dolls V. Dearee, L. E. 5 C. D. 730 ; 46 L. J. C. 791 ; seeJJe Mead, supra; De Dillon, supra. {h) Doutts V. Dllis, i D. M. & G. 249 ; Dromley t. Drunton, L. R, 6 Eq. 275 ; 37 L. J. C. 902 ; Dolls v. Dcr^rce, supra. (i) Tate v. Hilbert, supra. (k) Do Veal, 27 Beav. 303 ; 29 L. J. C. 321 ; Dankin t. Weguelin, ih. ; Clement v. Cheesman, L. R. 27 C. D. 631 ; 54 L. J. C. 158 ; see De Dobson, (1891) 2 Ch. 559 ; 60 L. J. C. 851. (J) Ward V. Turner, supra; Moore V. Moore, supra. 1004 ASSIGNMENT OF C0NTRAC;T3. pabtVI. is a banker's pass book («). And in general a gift intended to be an immediate gift intei- vivos, if imperfect, fails altogether, and cannot be completed as a donatio mortis causa (n). — The delivery of the key of a safe containing the securities is sufficient to support the intention of the donation (o). Form of equitable assign- ment. Fund assigned. An equitable assignment of a chose in action, supported by a valid consideration, may be made in any form of words, yfith. or without deed or writing, expressing the intention to assign (p). An order by a creditor upon his debtor, or upon a trustee or agent holding funds at his disposal for payment out of such funds, operates as an equitable assignment of so much of the debt or fund to the person to whom the order is given (q) . An order for payment delivered to the debtor or trustee of the fund, without notice to the assignee, is a mere authority to pay, and may be revoked at any time before acted upon ; either by an express revocation, or by any dis- position of the fund inconsistent with it (r). The payment of money to an agent for the purpose of paying a debt of the principal, as in the case of money paid into a bank to meet bills, gives an authority to the agent, for the due execution of which he is liable to his principal ; but it gives the creditor no right to the money, nor any claim against the agent; and the death of 'the principal before payment of the debt revokes the authority (s) . And an authority to an agent to receive debts and to pay over the amount to another, is not an assignment of the debt to the latter ; nor does it affect the debtor further than enabling him to discharge the debt by payment to the agent {t). — There must be a definite debt or fund as the subject of assignment ; an order upon a person to pay a third party, not referring to any fund for payment assigns nothing ; nor is it binding upon the person on whom («j) Beak v. Beak, supra. («) Tate V. Silbert, supra. (o) Jones V. Selby, Preo. Oh. 300 ; Mustapha v. Wedlake, (1891) W. N. 201 ; see Be Boison, supra. (p) Bow V. Dawson, 1 Vea. sen. 331 ; 2 •White & T. L. C, 6th ed. 796. {q) Oottenham, L. C, Barn v. Carvalho, 4 M. & Or. 702. ()•) Scott V. Porcher, 3 Mer. 652; MorreflT. TTootten, 16 Beav. 197. (s) mn V. Boyds, L. R. 8 Eq. 290 ; 38 L. J. 0. 538 ; Moore v. Bushel!, 27 L. J. Ex. 3. (<) Bodick V. Gandell, 12 Beav. 326 ; 1 D. M. & G-. 763. raiNClPLES OF ASSIGNMENT. 1005 it is made, unless he accepts and undertakes to pay it ; as in Chap. I. the case of a bill of exchange drawn upon him [u). A bill of exchange in the usual form, though for the exact amount of a fund of the drawer held by the drawee at his disposal, does not effect an equitable assignment or appropriation of the fund {w). Nor does a mere representation upon the faith of which a bill is purchased, that the drawee holds funds of the drawer to meet it, operate as an equitable assignment or bind any funds in his hands (w). — An order for payment of Order money, though expressed to be payable out of a definite debt stamp. or fund, must be properly stamped as a bill of exchange ; and if not stamped at the time of issue, cannot be stamped afterwards (s). But an order for payment out of a debt accruing due under a contract, as for goods sold, or for work and labour or the like, is an assignment of a debt which must be stamped as a transfer of property; and therefore may be stamped after issue upon payment of the penalty («). The assignment of a debt is valid between assignor and Notice to assignee without any notice to the debtor [b) ; and if the assignor afterwards obtains payment to himself, he must account for the proceeds to the assignee (e). But until the debtor has notice, he may discharge the debt by payment or satisfaction to his original creditor or to any other assignee from him {d) . A notice duly given binds the debtor by pre- cluding him. from afterwards defeating the assignment by paying or settling with the assignor (e) . And the notice (m) Perchal v. Sunn, L. R. 29 C. («) Buck v. Rohson, L. R. 3 Q. B. D. 128 ; 54 L. J. C. 570 ; see Ex p. D. 686 ; 48 L. J. Q. B. 250 ; see Sail, L. R. 10 C. D. 615 ; 48 L. J. JEx p. Shellard, L. R. 17 Eq. 109 ; 43 B. 79. L. J. B. 3; the Stamp Act, 1891, (x) Shandv. Du Buisson, L. K. 18 ss. 15, 37. Eq. 283 ; 43 L. J. C. 508. (*) Gorringe T. Inoell Works, L. R. (y) Citizms' Bonk of Louisiana v. 34 C. D. 128 ; 56 L. J. C. 85. Bank of New Orleans, L. R. 6 H. L. (c) Fortescne v. Barnett, 3 My. & 352 ; 43 L. J. C. 269. K. 36 ; Re Patrick, (1891) 1 Ch. 82 ; (z) Pitt v. lomas, 6 H. & N. 529 ; 60 L. J. C. 111. 30 L.J. Ex. 210; Griffin Y.Weatherby, (d) Matthews v. Walwyn, 4 Vea. L. R. 3 Q. B. 753 ; 37 L. J. Q. B. 118 ; Williams v. Sorrell. i Ves. 389 ; 280 ; see McGoKanY. Smith, 26 L. J. Stocks v. Dobson, 4 D. M. & G-. 11 ; C. 8 ; British India Co. v. Inland see Withington v. Tate, L. R. 4 Ch. Revenue, L. R. 7 Q. B. D. 165 ; 50 288 ; Allen v. Southampton, L. R. 16 L. J. Q. B. 517 ; and see Bills of C. D. 178; 50 L. J. C. 218. Exchange Act, 1882, ss, 3 (3), 53 (1). («) Brice v. Bannister, L. R. 3 1008 ASSIGNMENT OF CONTRACTS. Paet VI. binds the debtor in respect of the sum due without any proof of assent on his part, and notwithstanding his express dis- sent («) . If the debtor has notice that the assignor disputes the assignment he may withhold payment, and claim an interpleader, and an injunction against an action brought at the suit of one of the parties without joining the other ; or he may pay the money into Court (/) . Where a debt was payable by instalments, subject to the whole amount becoming payable on default, and the assignor disputed the assignment, the debtor was held justified after notice in continuing to pay him the instalments to save default, until the assignee obtained an injunction ((/). Effect of Where several successive assignments are made of the priority. Same debt or fund, the assignees presumptively take in order of date ; because each assignment is presumed to operate only upon the beneficial interest left in the assignor after the prior assignments ; but an assignee who takes without notice of any prior assignment may secure his own assign- ment by giving notice to the debtor, and thereby obtain priority over the prior assignee who has neglected to give notice (/«). Where notices of several assignments are given simultaneously, the assignments take priority in order of date according to the presumptive rule((). And where notices are sent to a bank which in the course of busLuess are read at the opening of the bank on the same day, they are held to be simultaneous {k) . An assignee who takes with notice of a prior assignment takes subject to that assignment, and cannot afterwards obtain priority by a mere notice to the debtor {I) . But if he had no notice at the time of taking Q. B. D. 569 ; 47 L. J. Q. B. 722 ; L. J. C. 202. see JFest London Blc. v. Reliance Soc, (g) Aplin v. Oates, 30 L. J. C. (3. L. K. 29C.D. 954; 54L. J. C.1081. (h) Dearie v. Hall, 3 Euss. I; (e) Yeates v. Groves, 1 Ves. jun. Lovcridge v. Cooper, ib. 30 ; Foster T. 280 ; TUbits v. George, 5 A. & E. Blacks1o)ic, 1 My. & K. 297 ; Foster 107 ; MeGowan v. Smith, 26 L. J. C. v. Cockerel/, 3 CI. & F. 456. 8 ; Selbome, L. C, Addison v. Cox, (i) Johnstone v. Cox, L. E. 16 C. D. L. R. 8 Ch. 82; 42 L. J. C. 291 ; 671 ; 50 L. J. C. 216. Brice V. Bannister, supra. [k) Calisher v. Forbes, L. E. 7 Ch. (/) See Judicature Act, 1873, 109 ; 41 L. J. C. 56. B. 25 (6), ante, p. 998; FrudaUial {I) Re Holmes,'L.'S,.2^C.J).1i6; Ass. V. IhomcK, L. E. 3 Ch. 74 ; 37 65 L. J. C. 33. PKINCIPLES OF ASSIGNMENT. 1007 the assignment to himself, subsequent notice of the prior Caip. I. assignment does not preclude him from securing priority by giving a prior notice to the debtor (m) . — Upon the above principle an assignee of the executor of a deceased person, who has made a prior assignment of the same debt in his lifetime, may obtain priority over the assignment by the deceased by giving a prior notice to the debtor (■«). — A claim of lien upon a document which is the evidence of a debt does not depend upon notice given to the debtor, because the retention of the document is notice to an assignee of the debt of the existence of an outstanding claim which precludes him from obtaining priority (o). — Companies regulated by Notice to statute are in general unaffected by notice of equitable interests ; therefore between two assignments of the same registered shares which are not perfected by transfer and registration the prior in time prevails {p) ; and the company cannot claim a lien under their articles upon registered shares for a debt due to them from an unregistered assignee of the shares (q) ; but notice of an assignment precludes, the com- ■ pany from acquiring a lien upon the shares as against the assignee in respect of transactions with the registered share- holder subsequent to the notice (r). — A judgment creditor judgment can charge the property of the debtor only to the extent '^^^ °^' of his beneficial interest, and can gain no priority over former charges by notice of the judgment; and therefore an attachment of debts owing to the judgment debtor is subject to prior assignments, though no notice has been given of them(.s). — And a trustee in bankruptcy takes the Trustee debts and choses in action of the bankrupt only to the extent ruptcy. (in) Mutual Life Ass. T. LangUy, (q) Re Perkins, L. E.. 2i Q. B. D. L. R. 32 0. D. 460. 613 ; 59 L. J. Q. B. 226. («) Re Freshjield' s Trusts, L. E. 11 (r) Bradford Sic. v. Briggs, L. R. C. D. 198. 12 Ap. Oa. 29. (o) West of England Blc.Y.Batehelor, (s) See ante, p. 137; Rickering y. 61 L. J. C. 199. Ilfracombe Ry., L. R. 3 0. P. 236; (p) Soc. Gen. de Faris y. TFalker, Robinson v. NesUtt, L. R. 3 C. P. 264 ; L. R. 11 Ap. Oa. 20 ; 56 L. J. Q. B. 37 L. J. 0. P. 124 ; overruling Watts 169 ; Roots v. Williamson, L. R. 38 t. Rorter, 3 E. & B. 743 ; see Re Gen. C. D. 486 ; 57 L. J. C. 995 ; Bee Sorticult. Co., L. R. 3 C. B. 612 ; 55 Moore v. North Western Bk., (1891) 2 L. J. C. 608; Davis Y. Freethy, L. R. Oil. 599 ; 60 L. J. C. 627. 24 Q. B. D. 619. 1008 ASSIGNMENT OF CONTRACTS. Form of notice. Part VI. of his beneficial interest, and subject to prior assignments; over which he can gain no priority by notice to the debtor {t) ; nor after an assignment of debts has been perfected by notice to the debtor can the trustee claim them as remaining in the order and disposition of the bankrupt (w). Notice may be given by the assignee to the debtor or trustee without writing or other formality, and without the expressed intention of securing the assignment {x) . Notice of an assignment received by the debtor in a manner or upon an occasion which makes it his duty to attend to it, though received casually and without the intervention of the assignee, is sufficient to bind the debtor and to secure the assignee against a subsequent assignment (y). But such casual notice is not suflicient to give the assignee priority over a prior assignment ; for which purpose a notice given by the assignee himself is necessary (s). — The notice may be in general terms; but if it gives particulars of the amount of the charge or of the fund charged, it will not operate constructively beyond the express terms («). By the Judicature Act, 1873, s. 25 (6), express notice in writing is required to make an assignment of a debt or chose in action effectual in law to transfer the legal right and remedies (b). And by the Policies of Assurance Act, 1867, a written notice of assignment of a policy of life assurance is required (c). Where a fund is brought into Court notice must be given by a stop order, which gives priority over future notices to the trustees of the fund id). If a trust fund is partly in Court and partly held by trustees an assignee must obtain a stop order for the one part and give notice to the trustees for the other (e). — Notice Notice of {t) Glover v. Moore, 39 L. J. C. 98 see Ex p. Ibbetson, L. R. 8 C. D. 519 («) See post, p. 1100; Re Irving. L. E.. 7 C. D. 419 ; 47 L. J. B. 38. (x) Smith V. Smith, 2 C. & M. 231 Alletson v. Chichester, L. E. 10 C. P, 319 ; 44 L. J. 0. P. 153 ; Exp. Agn Bank, L. R. 3 Ch. 555 ; 37 L. J. B 23. (y) Lloyd v. Banks, L. R. 3 Ch 488 ; 37 L. J. C. 881 ; see Safron Waldcn B. S. v. liayricr, L. R. 14 C. D. 406; 49 L. J, C, 46'). (s) Arden v. Arden, L. R. 29 C. D. 702; 54 L. J. C. 655. (a) Bright' s Trusts, 21 Beav. 430 ; 25 L. J. C. 449 ; TToodburn v. Grant, 22 Beay. 483. (i) See ante, p. 998. (c) Seepost, p. 1030. (d) Piiinock v. Bailey, L. E. 23 C. D. 497 ; 52 L. J. 0. 880 ; Swaine V. Stcaine, U Beav. 463. (e) Mutual Life Ass. y. Langley, L. E. 32 C. D. 460. PRINCIPLES OF ASSIGNMENT. 1009 given to a merely expectant debtor or trustee, before any Chap. i. debt is incurred or any fiduciary relation created in respect of future the fund, does not affect the order of priority in time(/). But if the debtor or trustee is under a contract or trust at the time of the notice, it is not material whether his liability is then absolute or conditional ; and the notice is sufficient to secure priority against the fund, if and when it becomes due and payable {g). Notice of an assignment may be given to an agent who is Notice to authorised by position or circumstances to receive it Qi) : as '^^"^ ' to the solicitor acting for the debtor in the matter of the assignment («') ; but notice to a solicitor who is merely em- ployed generally by the debtor is no notice to the latter, unless in fact communicated to him {k). Notice of assignment of a policy of insurance may be given to the secretary of the com- pany (l). Notice may be given to directors of a company of a matter which it would be their duty to communicate to the board ; provided it is a matter of which the company is capable of taking notice (?») ; and it seems that directors may be per- sonally affected with notice and its consequences as to a matter which does not affect the company by notice («). Notice may be given to the trustee in bankruptcy of a debtor ; and to the liquidator of a company (o). Notice of assignment given to one of several joint debtors. Notice to or partners, or trustees, is effectual to give priority to the debtor or assignment so long as the person receiving the notice con- tinues in the same relation to the others {p). " Notice to one trustee is sufficient, because a subsequent incumbrancer or (/) Buller V. Plunket, 1 J. & H. Gale v. Lewis, supra. 441; 30 L. J. C. 641; Somerset v. (Ic) Saffron Walden B. S.T. Rayner, Oox, 33 Beav. 634 ; 33 L. J. C. 490 ; L. E. 14 C. D. 406 ; 49 L. J. C. 465. Suffolk T. Cox, 36 L. J. C. 591 ; (i) Alletson v. Chichester, L. E. 10 Johnstone v. Cox, L. R. 19 C. D. 17. C. P. 319 ; 44 L. J. C. P. 153 ; see (<7) Addison v. Cox, L. K. 8 Ch. 76; post, p. 1030. 42 L. J. 0. 291 ; Brice t. Bannister, [m) See ante, p. 1007. L. B. 3 Q. B. D. 569 ; 47 L. J. (m) See Soe. Gen. de Paris v. Tram- q'. B. 722 ; Southwell v. Scatter, 49 ways Union, L. R. 14 Q. B. D. 424 ; L. J. Ex. 356 ; see Western Jfayon 54 L. J. Q. B. 177. Co. V. West, (1892) 1 Ch. 271. (o) Wragge's case, L. R. 5 Eq. 284. (A) Gale v. lewis, 9 Q. B. 730; (p) Smith v. Smith, 2 C. &M..2SI ; Gardner v. Lachlan, 4 M. & Cr. 129. Meux y. Bell, 1 Hare, 73 ; Duncan v. (i) TiiHts T. George, 5 A. & E. 107; Chamierlayne, 11 Sim. 123. T. 3 T 1010 ASSIGNMENT OF CONTRACTS. Paet VI. Change of trustees after notice. assignee would he under obligation to inquire of every one of the trustees " (q). Hence notice to one, not in fact communi- cated to the others, is not effectual to maintain the priority of an assignment after the relation ceases by death or retirement or otherwise (r). But a priority gained by notice to one trustee over an. assignment existing in his lifetime is not lost by his death (.s) . Where one of several trustees is also a bene- ficiary and assigns his interest, his knowledge of the transac- tion as assignor is not sufficient to protect it, because he is interested to suppress it ; but if he assigns to a co-trustee, the knowledge of the latter as assignee is sufiicient {i). An assignment by the beneficiary of a fund to the trustee is valid against a subsequent assignee ; and a subsequent order upon the trustee to pay " the balance due," was construed as referring to the balance after deducting the prior claim of the trustee {v). — Upon a change in the trustees, the new trustees are not affected by notices previously given which are not in fact communicated to them ; and it is not the duty of the new trustees to inquire respecting such notices ; nor is it the practice of the Court, in appointing new trustees, to make inquiry (a"). It is not the duty of a trustee either to the cestui que trust, or to an intended assignee, to answer inquiries about notices of prior dealings by the cesfid que trust ; and if he does answer such inquiries in good faith to the best of his knowledge and belief, he in general incurs no liability ; but if he makes a positive statement that the fund is unincum- bered, which is acted upon, he is estopped from afterwards denying it (y). jnee subject to equities against assignor. The assignee of a debt or cAo.se /;( action takes it subject to all equities that may arise against it between the assignor and the debtor before notice given to the latter of the assign- (5) Westbury, L. C, TFilles v. 'Greenhill, 31 L. J. C. 1. ()') Timson v. JRamshottom, 2 Keen, 35 ; Mcui V. Bell, 1 Hare, 73. (sj lie IFijatt, (1892) 1 Ch. 188. (t) Jlrou-ne v. Sarage, i Drew. 635. See Willesv. Greenhill, sitpra. (u) Ex p. Garrard, L. E. 5 C. D. 61 ; 46 L. J. B. 70. (x) Phipps T. Lovegroie, Ii. E. 16 Eq. 80 ; 42 L. J. C. 892. i.y) low V. Bomerie, (1891) 3 Ch. 82; 60L. J. C. 594; seeffH^',p-311; but see Re Tiilott, (1892) 1 Oh. 86; 61 L. J. C. 38. PKINCIPLES OF ASSIGNMENT. 1011 ment(s). According to this rule upon the assignment of a Chap. i. mortgage debt, without the concurrence of the mortgagor, the assignee stands in the same position as the mortgagee and can claim no more than is justly due upon an account stated between the mortgagor and mortgagee at the time of notice given to the mortgagor («) . And the assignee of a bond or debenture of a company takes it subject to the conditions upon which it was given by the company to the assignor, unless the debenture was issued in a negotiable form (5). Where debentures were given to the promoter of a company in payment of his undertaking to form the company, and were assigned by him to several assignees, it was held that a set-off against the promoter for unpaid charges was charge- able against the assignees of the debentures rateably (c). The equities chargeable against an assignee are such only Equities • X p .1 V. i- XL J 1.x J -1 chargeable. as arise out oi the same transaction as the debt and are avail- able in reduction of the claim of the assignor : as payment or satisfaction made on account of the debt ; failure of the con- sideration for the debt, as in the case of a vendor failing to convey the estate sold after assigning the debt for the pur- chase money {d) ; defective execution of the consideration for the debt, as defects in the quality of goods sold, or of work done {e) ; a lien or set-off arising from the terms of the agree- ment with the assignor, as a banker's lien upon the money assigned, or the lien of a company upon shares for claims on the shareholder who has assigned his shares (/). But the debtor cannot charge the assignee with a set-off or counter- claim which arises against the assignor from transactions independent of the debt assigned {g). — The assignee of a debt (z) Mangles v. Dixon, .3 H. L. C. (d) lie Natal Investment Co., supra. 702 ; Cavendish v. Geaves, 24 Beav. («) Toung v. Kitchin, L. R. 3 Ex. 163 ; 27 L. J. 0. 314 ; Roxhirghe v. D. 127 ; 47 L. J. Ex. 579. Cox, L. E. 17 C. D. 520 ; 60 L. J. 0. (/) RoxburgheY. Cox, supra; Sors- 772. fall V. Halifax Bank, 52 L. J. C. 599. {a) See 2 Wlite & T. L. 0. 958, {g) Watson v. Mid- Wales Ey., L. 3rd ed., notes to Thornbrough v. R. 2 C. P. 593 ; 36 L. J. C. 285 ; ife Halter. Milan Tramways Co., L. E. 25 0. D. ■ {b) Re Natal Investment Co., L. B. 687 ; 53 L. J. C. 1008 ; Re Asphaltic 3 Ch. 365 ; 37 L. J. C. 362 ; see^os*, Co., L. E. 30 C. D. 216 ; 54 L. J. p. 1013. C. 460 ; see Re Overend, Gurnet/^ Co., (e) Ex p. James, L. E. 8 Eq. 225 ; L. E. 6 Eq. 344. 38 L. J. 616. 3t2 1012 ASSIGNMENT OF CONTRACTS. Paet VI. Equities arising after notice. Equities barred by conditions of debt. also takes it subject to any right or equity ia the debtor to avoid it or have it set aside upon the ground of fraud or other sufficient ground (A). So the assignee of a mortgage debt acquires no right if the mortgage was given by trustees in breach of trust to the koovi^ledge of the mortgagee («') . And if the debt was originally void, as being illegal in matter or in form, the assignee is in no better position than the assignor and has no claim; as in the case of bonds issued by the directors of a company which are extra vires, or in fraud of the company ; and though the assignee gave value for them and had no notice of the invalidity (Ji). — The debtor can assert no equity against the assignee arising out of any transaction with the assignor after receiving notice of the assignment; but he can assert claims accruing at the time of notice though not due and payable until afterwards (/) . And it was held that the debtor could not claim against the assignee for advances made to the assignor after notice of the assignment though the advances were made and expended for the purpose of completing the consideration upon which the debt became payable (w) . Where a shareholder assigned debentures of a company after the commencement of winding-up, it was held that the company might set off subsequent calls upon the shares, because the liability to contribution accrued with the winding-up and before the assignment (;;). The debtor may be barred of any equity against the assignee by the conditions of the original debt or contract with the assignor ; " he may contract himself out of the right of resorting, as against the assignee of the creditor, to his equities against the creditor himself " (o): as was held in the case of debentures of a company issued under their articles (h) Turion t. Benson, I P. Wms. 496 ; Graham v. Johnson, L. E. 8 Eq. 36 ; 33 L. J. 0. 374 ; Judd v. Green, 45 L. J. C. 108. (i) Burt T. Trueman, 29 L. J. C. 902 ; see Biclcerton v. Walker, L. K. 31 C. D. 151; 55 L. J. 0. 227; French v. Rope, 56 L. J. C. 363. Uc) Athencoum Ass. v. Foolcy, 3 D. & J. 294; 28 L. J. C. 119. (/) Jeffryes v. Agra Bk., L. R. 2 Eq. 674 ; 35 L. J. C. 686. (m) Bricc. -v. Baiimster, L. E. 3 Q. E. D. 569 ; 47 L. J. Q. B. 722. («) Re China Steamship Co., L. E. 7Eq. 240; 38 L. J. C. 199. (o) Eolt, L. J., Re BlakeJey Ord- nance Co., L. R. 3 Ch. 168; see Be ^„l,d Invest. Co., L. R. 3 Ch. 355; UoMh V. Credit Fancier, L. E. 8 QB. 374; 42 L. J. Q. :^. 183. PRINCIPLES OF ASSIGNMENT. 1013 of assooiation in payment of the purchase money of estates Chap. i. conveyed to the company, and expressed to be payable to the vendor and his assigns {p). So where debentures w^ere issued to a person for the purpose of raising money, under a contract by him to indemnify the company, it was held to be contrary to the intention of the parties that an assignee of a debenture should be met by a claim against the assignor upon the indemnity (q). — The debtor may also be barred by his own Equities J i / 1 ji • n -,• • , 1 • tarred by conduct towards the assignee from any equities against him. conduct of Thus a company who accepted notice of assignment of a ^ bond, without informing the assignee that they repudiated the bond as having been fraudulently issued to the assignor, were held to have estopped themselves from disputing it against the assignee (r). And where the debtor accepted a written order upon him to pay out of the first money that should come to his hand on account of the assignor, and delivered it to the assignee, he was held barred from any prior claim upon the fund as against the assignee (s). Upon this principle a company by accepting an assignee of their debentures and registering him as proprietor were held to be estopped from disputing his title and charging the debentures with any liability of the assignor {f) . And a corporation who have issued assignable debentures, though in pursuance of an illegal contract with the person to whom they were issued, are estopped from denying their validity against his assignee who has taken them for value and without notice of the illegality (ii). The assignment of a debt may be made effectual in law by Assign- an agreement of all the parties, that the debtor, in considera- debt by new agree- ment of all parties. (p) Biggs v. Assam Tea Co., L. K. (l) Higgs t. Assam Tea Co., supra; 4 Ex. S87 ; 38 L. J. Ex. 233. Re Northern Assam Tea Co., L. R. 10 (?) Dickson v. Swansea By., L. B. Eq. 458 ; 39 L. J. C. 829 ; Re Bahia 4 Q. B. 44 ; 38 L. J. Q. B. 17. and San Francisco By., L. R. 3 Q. B. {)■) Re Hercules Ins., L. B. 19 Eq. 684 ; Morton's case, L. B. 16 Eq. 104; 302 ; 44 L. J". C. 450 ; see Eorsfall r. 42 L. J. C. 786. Halifax Bk., 52 L. J. C. 599. [u) Welb v. Heme Bay Commiss., (s) Macfarlane v. lister, L. E. 37 L. E. 5 Q. B. 642 ; 39 L. J. Q. B. C. D. 88 ; 57 L. J. C. 92. 221 ; see Be Bomforcl Canal Co., L. E, 24 C. D. 85 ; 52 L. J. 0. 729, 1014 ASSIGNMENT OF CONTRACTS. Past VI. tion of his discharge by the assignor, shall bind himself to pay the debt to the assignee. " Suppose A. owes B. 100/., and B. owes 0. 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." (x). The legal effect of the agreement is that B. pays his debt to C, by assigning to him the debt of A., who contracts to pay C. instead of B. But unless the condition of agreement of all parties to the discharge of the debt of the assignor and to the undertaking of the debt to the assignee is fully satisfied, the resulting assignment of the debt is imperfect (y) . "When the agreement is complete the assignment of the debt and authority to pay the assignee is final and irrevocable (2) . — In the same manner an assignment may be made of a future or contingent debt, so that the assignee becomes entitled and can recover against the debtor only upon satis- faction of the conditions by which the debt becomes absolute : as in the case of an order upon a tenant to pay out of future rent (a) ; an order upon the charterer of a ship to pay out of the freight to become due on the loading and sailing of the ship {b) ; an order for payment out of the price of future supplies of goods (c) ; or an order to pay out of an open Debt for account when the balance shall be sufficient (t/). — In the received, case of a debt for money received to the use of another, the assent of the debtor to the assignment of the whole, or a certain amount of the debt, expressed to the assignee, operates as an effectual appropriation of the money to the use of the assignee, and entitles him to recover such money under a claim for money received to his use (e). — The con- (x) Buller, J., Tatlock v. Harris, E. 375 ; JTall-er v. Eostrm, 9 M. & 2 T. R. 180 ; Tenterden, C. J., Fairlie W. 411 ; Hamilton y. Spottiswoode 4 V. Benton, 8 B. & C. 400 ; see ante, Ex. 200. p. 759, n. (A). (a) TFharton v. Walker, 4 B. & 0. (y) Cuxon v. Chadley, 3 B. & C. 163. 591 ; Wharton v. Walker, 4 B. & 0. (4) Hudson v. Bilton, 6 E. & B. 163 ; liversidge v. Broadbelt, 4 H. & 565 ; 26 L. J. Q. B. 27. N. 603 ; 28 L. J. Ex. 332 ; Cochrane (c) Walker v. Sos'tron, 9 M. & "W V. Green, 9 C. B. N. S. 448 ; 30 L. J. 411 ; Hamilton v. Spottisiroode, supra; *^- !"• 9''- Percy v. Clements, 43 L. J. C. P. 155. (z) Hodgson v. Anderson, 3 B. & C. (d) Malcolm v. Scott, 5 Ex 601 842 ; Hutchinson t. Heyworth, 9 A. & (e) See ante, p. 93 • Israel v PRINCIPLES OF ASSIGNMENT. 1015 tract or promise of the debtor to pay according to the Chap. I. order or assignment of his creditor, is a promise to pay his statute of own debt, though it operates in discharge of the debt of his creditor ; it is therefore not a promise to pay the debt of another within the Statute of Frauds, and does not require written evidence (/). An order in writing upon a debtor in Stamp, general terms to pay a sum of money to another may consti- tute a bill of exchange, or order requiring a stamp, under the Stamp Act (g). By the same process of agreement of aU parties, the Assign- liability for a debt may be assigned from one debtor to uXmty. another. Such a transaction occurs upon a change in a firm of partners by retirement or death, where the debt of the original firm is assigned to the new firm ; and the creditor, by continuing to deal with the firm after notice of the change, presumptively accepts the liability of the new firm in substitu- tion for his claim against the former partners (A). Upon this principle, according to usage of the building trade, the lia- bility of the building owner to the surveyor for taking out the quantities of the specification for tenders is transferred to the builder whose tender is accepted («). Douglas, 1 H. Bl. 239; mison v. (/) See ante, p. 207, n. (e). Coupland, 5 B. & Aid. 228 ; Lilly v. [g) See ante, p. 1005. Bays, 5 A. & E. 548 ; Blackburn, J., (A) See ante, pp. 685, 760. Griffin v. Weatheriy, L. R. 3 Q. B. (i) North v. Bassett, (1892) 1 Q. B. 7.58 ; 37 L. J. Q. B. 280. 333. 1016 Chapter II. ASSIGNABLE CONTRACTS. PAGE Bills of exchange— contracts of the parties — negotiation by delivery and indorsement — rights of holder— forged signatures 1016 Banker's cheques — liability of banker — crossed cheques^ forged indorsement — post-dated cheques 1020 Promissory notes 1023 Bills of lading — rights and liabilities of indorsee — indorse- ment as security — discharge of bill of lading — stoppage of goods in transitu — estoppel as to goods shipped .... 1024 Pohcies of life insurance — policies of marine insurance . . 1030 Debentures of companies — local loan debentures — certifi- cates of shares 1033 PubHc stock certificates — dividend warrants — exchequer bills — postal orders — foreign government bonds 1035 Paet VI. Instances of assign- able con- tracts. Bills of Some oontracts are negotiable or assignable in various degrees in exception to the above-mentioned rules ; either at conunon law or by statute. Bills of exchange were originally negotiable by the custom of merchants, which in this respect was incorporated in the common law ; they are now defined and regulated by the statute 45 & 46 Yiot. c. 61, the Bills of Exchange Act, 1882 ; being " an Act to codify the law relating to bills of exchange, cheques, and promissory notes," and repealing former statutes relating to them. The statute expressly provides (s. 97) that " the rules of common law, including the law merchant, save in so far as they axe inconsistent with the express provisions of this Act, shall continue to apply to bills of exchange, promissory notes and cheques "(«) . (a) See ante, pp. 76, 166. ASSIGNABLE CONTRACTS. 1017 The following are the chief provisions of the Act relating to Chap. ii. the negotiation of bills and notes : — S. 3 (1.) "A bill of exchange is an unconditional order Drawing, in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable time a sum certain in money to or to the order of a specified person, or to bearer." — S. 17 (1.) " The acceptance of a bill is the Aooept- signifioation by the drawee of his assent to the order of the drawer. (2.) It must be written on the bill and be signed by the drawee. The mere signature of the drawee without additional words is sufficient " (b). S. 54. "The acceptor of a bill by accepting it engages Contract of 3.CC6T)tor. that he will pay it according to the tenor of his acceptance." S. 55 (1.) " The drawer of a bUl by drawing it engages that Drawer, on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured he will compensate the holder or any indorser who is compelled to pay it, pro- vided that the requisite proceedings on dishonour be duly taken." (2.) The indorser of a bill by indorsing it engages Indorser. to the same effect as the drawer, to the holder or to a subse- quent indorser who is compelled to pay (c). S. 8 (1.) "Where a bill contains words prohibiting Negotia- transfer, or indicating an intention that it shall not be transferable, it is valid as between the parties thereto, but is not negotiable (d). (2.) A negotiable bill may be payable either to order or to bearer. (3.) A bill is payable to bearer which is expressed to be so payable, or on which the only or last indorsement is an in- dorsement in blank. (4.) A bill is payable to order which is expressed to be so payable, or which is expressed to be payable to a particular person and does not contain words prohibiting transf er " (e) . S. 7 (3.) "Where the payee is a (4) See Sindlaiigh v. Blakey, L. R. Bills of Exch. Act, 1882, s. 49. 3 C. P. D. 136; 47 L. J. C. 345; (d) National Sank t. Silke, (1891) Steele t. M'Kinlay, L. R. 5 Ap. Ca. 1 Q. B. 435. 754 {e) See Decroix v. Meyer, L. R. (c) Ld. Blackburn, -Si;«c&v.JK''Xi«- 25 Q. B. D. 343; 59 L. J. Q. B. lay, L. R. 5 Ap. Ca. 769. As to 538 ; Meyer v. Decroix, (1891) Ap. notice of dishonour, see ante, p. 562 ; Ca. 520. 1018 ASSIGNMKNT OF CONTRACTS. Paet VI. fictitious or non-existing person the bill may he treated as payable to bearer "(/). — S. 31 (1.) "A bill is negotiated when it is transferred from one person to another in such a manner as to constitute the transferee the holder of the bill. Delivery — (2.) A bill payable to bearer is negotiated by delivery. dorsement. (3.) A bill payable to order is negotiated by the indorsement of the holder completed by delivery " (gf) . S. 32 (1.) "An indorsement must be written on the bill itself and be signed by the indorser. The simple signature of the iadorser on the bill without additional words is sufficient. (6.) An in- dorsement may be made in blank or special. It may also contain terms making it restrictive." S. 34 (1.) " An in- dorsement in blank specifies no indorsee, and a bill so indorsed becomes payable to bearer. (2.) A special indorsement speci- fies the person to whom, or to whose order, the bill is to be payable." S. 35 (1.) "An indorsement is restrictive which prohibits the further negotiation of the bill or which expresses that it is a mere authority to deal with the bill as thereby directed and not a transfer of the ownership thereof." — Overdue S. 36 (1.) "Where a bill is negotiable in its origin it con- tinues to be negotiable until it has been (a) restrictively indorsed, or (b) discharged by payment or otherwise. (2.) Where an overdue bill is negotiated it can only be negotiated subject to any defect of title affecting it at its maturity, and thenceforward no person who takes it can acquire or give a better title than that which the person from whom he took it had (/*) . (4.) Except where an indorsement bears date after the maturity of the bill, every negotiation is 2)rima facie deemed to have been effected before the biU was overdue." Negotia- S. 68 (1.) " Where the holder of a bill payable to bearer tion with- J- 1 •! 1 IT .,1 .1 . out in- ^ negotiates it by deuvery without mdorsmg it, he is called a ' transferor by delivery.' (2.) A transferor by delivery is not liable on the instrument. (3.) A transferor by delivery who dorsement. (/) See Blc. ofEngland-v. Vagliano, (h) Me Ovei-end, Oumey ^ Co., L. E. (1891) Ap. Ca. 107 ; 60 L. J. Q. B. 6 Eq. 344 ; Re European Blc., L. R. 1*5. 5Ch. 358 ; 39L. J. C. 588 ; ieeAkocky. {g) See Bromage y. Lloyd, 1 Ex. 32. Smith, (1892) 1 Oh. 238; ante, p. 1000. ASSIGNABLE CONTRACTS. 1019 negotiates a bill thereby warrants to bis immediate transferee Chap. ii. beiQg a bolder for value tbat the bill is what it purports' to be, that be has a right to transfer it, and that at the time of transfer be is not aware of any fact which renders it value- less."— S. 31 (4.) "Where the holder of a bill payable to his order transfers it for value without indorsing it, the transfer gives the transferee such title as the transferor had in the bill, and the transferee in addition acquires the right to have the indorsement of the transferor "(*') . — S. 37. "Where a Negotia- bill is negotiated back to the drawer, or to a prior indorser or prior to the acceptor, such party may, subject to the provisions of ^^"^ ^' this Act, re-issue and further negotiate the bill, but he is not entitled to enforce payment of the bill against any intervening party to whom he was previously liable " {!;) . S. 29 (1.) " A holder in due course is a holder who has Holder in taken a bill, complete and regular on the face of it, under the foUovsdng conditions, namely : (a) that he became the bolder of it before it was overdue, and without notice that it had been previously dishonoured ; (b) that he took the bill in good faith and for value, and that at the time the biU. was negotiated to him he had no notice of any defect in the title of the person who negotiated it." " (3.) A holder (whether for value or not) who derives his title to a bill through a holder in due course, and who is not himself a party to any fraud or illegality affecting it, has all the rights of that holder in due course as regards the acceptor and aU. parties to the bill prior to that holder." — S. 38. " The rights and powers of the Eights of holder of a bill are as follows : — (1.) He may sue on the bill in his own name. (2.) Where he is a holder in due course he holds the bill free from any defect of title of prior parties, as well as from mere personal defences available to prior parties amongst themselves, and may enforce payment against all parties liable on the biU. (3.) Where his title is defective, if he negotiates the bill to a holder in due course, that holder (i) See Ease y. Sims, 1 B. & Ad. Watkins v. MauU, 2 Jao. & W. 243. 521 ; Whistler v. Forster, 14 C. B. {k) WilUnson v. TJmi-in, L. R. 7 N. S. 248; 32 L. J. C. P. 161; Q. B. D. 636 ; 50 L. J. Q. B. 338. 1020 ASSIGNMENT OF CONTUACTS. PaetVI. obtains a good, and complete title to the bill; and if be obtains payment of the bill the person who pays him in due course gets a valid discharge for the bill." — S. 30 (2.) " Every holder of a bill is pvimd fade deemed to be a holder in due course ; but if in an action on a bill it is admitted or proved that the acceptance, issue, or subsequent negotiation of the bill is affected with fraud, duress, or force and fear, or ille- gality, the burden of proof is shifted, unless and until the holder proves that subsequent to the alleged fraud or ille- gality value has in good faith been given for the bill " [l). Forgedand g. 23. " No person is liable as drawer, indorser, or acceptor rised sig- of a bill who has not signed it as such." And s. 24. " Sub- na ure. j^^^ ^^ ^j^^ provisions of this Act, where a signature on a bill is forged or placed thereon without the authority of the person whose signature it purports to be, the forged or unatithorised signature is wholly inoperative, and no right to retain the bill or to give a discharge therefor or to enforce payment thereof against any party thereto can be acquired through or under that signature ; unless the party against whom it is sought to retain or enforce payment of the biU is precluded from setting up the forgery or want of autho- rity." — Upon the principle of this enactment where a bill is accepted payable at a bank, and the banker pays to a forged indorsement, he cannot charge his customer with the amount (/») ; unless the customer is estopped by his own negligence in accepting and negotiating the bill from assert- ing the forgery (•»). Bankers' S. 73. " A cheque is a bill of exchange drawn on a banker payable on demand ; " and " the provisions of this Act applicable to a bill of exchange payable on demand apply to a cheque;" accordingly a cheque is negotiated by delivery or by indorsement in the same manner as a bill of exchange (J) See ante, pp. 528, 653 ; Talam («) Bh. of England v. Vagliano, V. Ilasler, L. R. 23 Q. B. T>. 345 ; (1891) Ap. Ca. 107 ; 60 L. J. Q. B. 58 L. J. Q. B. 432. 145 ; see Salifax Union v. Whed- (m) Roberts v. Tucker, 16 Q. B. Wright, L. K. 10 Ex. 183; 44 L. J. 560; 20 L. J. Q. B. 70; but see Ex. 121; and seeiJosd, p. 1023. 8. 60, post, p. 1023. ASSIGNABLE CONTKACTS. 1021 and with similar liabilities (o). — S. 74. A reasonable time is Chap. [I. allowed for the presentment of a cheque for payment ; having Present- regard to " the nature of the instrument, the usage of trade '"^°*' and of bankers, and the facts of the particular case " ; and if not presented within a reasonable time the holder keeps it at his own risk against loss through the delay, as by failure of the banker ; the drawer is discharged of the cheque to the extent of the loss, and the holder becomes a creditor, in lieu of the drawer, of the banker to the extent of such dis- charge {p). But the negotiation of an overdue cheque does not affect the holder with notice of a defective title in the person from whom he took it, as in the case of taking an overdue biU of exchange ; the delay in presentment is merely a fact which has to be considered upon the question of such notice arising [q) . A banker is bound by the customary contract with a Eights and customer to pay cheques drawn upon him, so long as he has of banker, funds of the customer applicable to the purpose ; and he is liable to an action for damages eaiised by the refusal to pay a cheque (r) . But a cheque does not operate as an assign- ment of so much of the funds to the payee ; the money deposited with a banker being a loan at his absolute disposal, and not a trust or bailment of the specific fund (s) . By s. 76. " The duty and authority of a banker to pay a cheque drawn on him by his customer are determined by (1) counter- mand of payment, (2) notice of the customer's death." "When a negotiable cheque is paid into a bank and credited to the customer's account, the banker becomes presumptively the holder for value in due course, and not merely agent to collect, and he may sue the drawer or indorser in his own name {t) . (o) Ante, p. 1018 ; Xeene v. Beard, (>•) See ante, p. 908 ; Rogers v. 8 C. B. N. S. 372 ; 29 L. J. C. P. Whiteley, L. R. 23 Q. B. D. 236. 287; McLean Y. Clydesdale J3Jc.,Jj.'R. (s) See ante, p. 837; SopkinsonY. 9 Ap. Ca. 95. Forster, L. E. 19 Eq. 74. (jo) See ante, p. 773. {t) McLean y. ChjdesdaleBh., L. E. (o) Seea«<«,p. 1018; Land. ^County 9 Ap. Ca. 96 ; Ex p. Richdale, L. R. Bk V Groome, L. K. 8 Q. B. D. 19 C. D. 409; 51 L. J. C. 462; 288 ■ 51 L. J. Q. B. 224. National Bk. v. Silke, (1891) 1 Q. B. 435. 1022 ASSIGNMENT OF CONTRACTS. Pabt VI. Crossed cheques. Non-nego- tiable cheque. S. 76 (1.) " "Where a cheque bears across its face an addi- tion of (a) the words ' and company,' or any abbreviation thereof between two parallel transverse lines, either with or without the words ' non-negotiable ' ; or (b) two parallel lines simply, either with or without the words ' not negotiable ' ; that addition constitutes a crossing, and the cheque is crossed generally. (2.) Where a cheque bears across its face an addition of the name of a banker, either with or without the words ' not negotiable,' that addition constitutes a crossing, and the cheque is crossed specially and to that banker." S. 11 provides that a cheque may be crossed generally or specially and with the words " not negotiable," as above, by the drawer or by the holder. And s. 78 makes the crossing a material part of the cheque ; which it is not lawful for any person to obliterate or alter. — S. 79. " Where the banker pays a cheque crossed generally otherwise than to a banker, or if crossed specially otherwise than to the banker to whom it is crossed, he is liable to the true owner of the cheque for any loss he may sustain owing to the cheque having been so paid" (w). S. 80. "Where the banker on whom a crossed cheque is drawn, in good faith and without negligence pays it to a banker or to the special banker according to the cross- ing, the banker paying the cheque and, if the cheque has come into the hands of the payee, the drawer shall respec- tively be entitled to the same rights and be placed in the same position as if payment of the cheque had been made to the true owner thereof." — S. 81. "Where a person takes a crossed cheque which bears on it the words ' not negotiable,' he shall not have, and shall not be capable of giving a better title to the cheque than that which the person from whom he took it had" (r). — S. 82. "Where a banker in good faith and without negligence receives payment for a customer of a cheque crossed generally or specially to himself, and the customer has no title or a defective title thereto, the banker shall not incur any liability to the true owner of the cheque («) See Hmitli v. Vnion M., L. R. 1 a. B. D. 31 ; 44 L. J. Q. B. 117; Bobbetl V. Fiitkctt, L. R. 1 Ex. D. 368 ; 45 L. J. Ex. 555. (i'i See National Bli. v. SUke, (1891) 1 Q. B. 435. ASSIGNABLE CONTEACTS. 1023 by reason only of having received such payment" («). — Chap. ii. S. 60. " When a bill payable to order on demand is drawn Gorged in- on a banker, and the banker on whom it is drawn pays the liorsement. bill in good faith and in the ordinary course of business, it is not incumbent on the banker to show that the indorsement of the payee or any subsequent indorsement was made by or under the authority of the person whose indorsement it pur- ports to be, and the banker is deemed to have paid the cheque in due course although such indorsement has been forged or made without authority '"' (y). This enactment applies to indorsements purporting to be made by an agent with authority, though in fact unauthorised (z) . It does not protect any other banker or person who receives the proceeds of a forged or unauthorised indorsement through the banker on whom the bill or cheque is drawn ; and the rightful owner may recover the money from such receiver (a). — A cheque Post-dateii ■^ / ... cheques. may be post-dated, subject to the objection that it should be stamped as a bill of exchange ; but this objection can only be taken whilst it remains apparent on the face of the instru- ment, and not after the date has elapsed and it has become due and payable on demand ; and though the bearer took it before it was due and therefore with notice of the post- dating (b). The drawer of a post-dated cheque is under no obligation to stop its payment for the benefit of a third party, as it may have got into the hands of a bo7id fide holder for value to whom he would be liable (c). S. 83 (1.) "A promissory note is an unconditional promise Promissory in writing made by one person to another signed by the ^° '^^' maker, engaging to pay on demand or at a fixed or deter- Ix) See Matthiessen v. Lmd. # Co. Cheque Blc, L. E. 1 C. P. D. 578-; Sk., L. E. 5 C. P. D. 1 ; 48 L. J. 45 L. J. 0. P. 662; Patent Gtm C. P. 529. Cotton Co. t. Wilson, 49 L. J. Q. P. («) See Salifax Union v. Wheel- 713. Wright, L. E. 10 Ez. 183 ; 44 L. J. (S) Gatty t. -Fry, L. E. 2 Ex. D. Ex. 121 ; and see s. 23, ante, p. 266 ; 46 L. J. Ex. 605 ; see Clarke 1020. V. Soche, L. E. 3 Q. B. D. 170 ; 47 (z) Charles v. Slackwell, L. E. 2 L. J. Q. B. 147. C. P. D. 151 ; 46 L. J. C. P. 368. (c) Jix p. Richdale, L. R. 19 C. D. (a) Ogden t. Senas, L. E. 9 C. P. 409 ; 51 L. J. C. 462 ; ante, p. 773. 613 ; 43 L. J. C. P. 259 ; Arnold v. 1024 ASSIGNMENT OF CONTRACTS. Present ment. Paet VI. minable future time, a sum certain in money, to or to the order of a specified person or to bearer. (2.) An instru- ment in the form of a note payable to maker's order is not a note within the meaning of this section unless and until it is indorsed by the maker." S. 84. " A promissory note is inchoate and incomplete until delivery thereof to the payee or bearer." S. 88. " The maker of a promissory note by making it engages that he will pay it according to its tenor." — S. 86. A note payable on demand must be pre- sented within a reasonable time, as against an indorser, having regard to the nature of the instrument, the usage of trade, and the facts of the particular case ; but it is not deemed to be overdue for the purpose of affecting a holder with defects of title by reason of a reasonable time for pay- ment having elapsed (c). — S. 89 (1.) " The provisions of this Act relating to bills of exchange apply, with the necessary modifications, to promissory notes. (2.) In applying those provisions the maker of a note shall be deemed to correspond with the acceptor of a bill, and the first indorser of a note shall be deemed to correspond with the drawer of an accepted bill payable to drawer's order." Bills of lading. . Transfer of the property by in- dorsement. A bill of lading is the document signed by the master of a ship upon the shipment of goods for carriage, acknow- ledging the receipt of the goods on board, and undertaking to deliver them to the consignee " or to his order or assigns," upon payment of the freight and satisfaction of the condi- tions stipulated. By the common law, founded upon the custom of merchants, the biU of lading represents the goods ; and the indorsement and delivery of the bill of lading by the shipper or owner of the goods presumptively transfers the property to the indorsee (r/). But the contracts contained in the bill of lading for the carriage and delivery of the goods U) See ante, p. 1021. (d) Lickbarrow v. Mason, 2 T. E,. 63 ; 6 East, 21 ; 1 Smith's L. C, 9th ed. 737; &eopercur.Fox'7,Nott,Q'a.&,'^. 630 ; 30 L. J. Ex. 259 ; Dracachi v. Angh-'Egxjpt. Co., L. R. 3 C. P. 190; 37 L. J. C. P. 71 ; Henderson v. Coinptoir d'Fscompie, L. E.. 5 P C. 253. ASSIGNABLE CONTRACTS. 1025 and for the payment of freight, by the general rule of Chap. ii. common law, were not assignable, and the indorsee could neither sue nor be sued in his own name (6). — Now, by the Transfer statute 18 & 19 Yict. c. Ill, for amending the law relating contract, to bills of lading, after reciting that "by the custom of merchants a bill of lading of goods, being transferable by indorsement, the property in the goods may thereby pass to the indorsee, but nevertheless all rights in respect of the contract contained in the bill of lading continue in the original shipper or owner, and it is expedient that such rights should pass with the property," enacts as follows : — By s. 1, " every consignee of goods named in a bill of lading, and 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, "nothing herein contained shall prejudice or aflEect any right of stoppage in transitu, 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 indorsee, or of his receipt of the goods by reason or in consequence of such consignment or indorsement." — By s. 3, " every bill of lading in the hands of a consignee or indorsee for valuable consideration, repre- senting goods to have been shipped, shall be conclusive evidence of such shipment as against the master or other person signing the same, notwithstanding that such goods or some part thereof may not have been so shipped, unless the holder of the bill of lading shall have had actual notice at the time of receiving the same that the goods had not been in fact laden on board." A bill of lading is not affected by the terms of the charter- Eights and party or any other liability of the charterer, except so far as olSrsee. (i) Thompson v. Bominy, 14 M. & W. 403 ; Howard v. Shepherd, 9 C. B. 297. 1026 ASSIGNMENT OF CONTEACTS. Paet VI. it is referred to in the bill of lading (c) ; and a consignee or an indorsee accepting the goods under the bill of lading is bound by that document only {d). Hence an indorsee is presumptively entitled to delivery of the goods on payment of the freight stipulated in the bill of lading, though a different rate of freight is stipulated in the charterparty, and though a lien for the whole freight is therein stipulated {e). A bill of lading with the condition " freight payable as per charterparty" binds the holder to the charterparty freight for the goods contained in the bill of lading ; but it does not in- corporate conditions of the charterparty relating to demurrage, unloading or other matters (/) ; nor does it incorporate a stipulation of the charterparty for a general lien for freight upon the whole cargo {g). A bill of lading " for delivery to order against payment of freight and other conditions as per charterparty" includes all the conditions of the charterparty which relate to the carriage and delivery of the goods in the bill of lading, as demurrage in taking delivery (/;) . If the bill of lading incorporates by reference the conditions of the charterparty, and the conditions of the two documents are inconsistent, the bill of lading prevails as between the shipowner and the shipper of the goods under the bill of lading or his indorsee (»'). But if the charterer is also the shipper of the goods, the contracts being between the same parties must be construed together according to the general intention; and the charter presumptively prevails (A,-). (c) ledue v. Ward, L. E. 20 Q. B. (h) Wec/iiier v. Smith, 15 C. B. D. 475 ; 57 L. J. Q. B. 379. 285 ; 24 L. J. C. P. 25 ; Gray v. (d) Ohappcl V. Comfort, 10 C. B. Carr, supra; Forteiis v. TTatnei/, Jj.^. N. S. 802 ; see Moller v. Tounr/, 5 3 Q. B. D. 534 ; 47 L. J. Q. B. 643 ; E. & B. 755 ; 25 L. J. Q. B. 94. see SS. Lancaster v. Sharpe, L. B. (<■) Foster v. Colby, 3 H. & N. 705 ; 24 Q. B. D. 158 ; 59 L. J. Q. B. 22. 28 L. J. Ex. 81 ; Shandy. Sanderson, (i) Gardner y. Trechmann, supra; 4 H. & N. 381 ; 28 L. J. Ex. 278. Serraino y. Campbell, (1891) 1 Q. B. (/) Chappel V. Comfort, supra ; 283 ; 60 L. J. Q. B. 303. Fowler V Knoop, L. E,. 4 Q. B. D. (/.■) Sussell v. Niemann, 17 C. B. 299 ; 48 L. J. Q. B. 333. N. S. 163; 34 L. J. C. P. 10; [g) Fry y. Chartered Bk. of India, Caughey v. Gordon, L. R. 3 C. P. L. E. 1 C. P. 689 ; 35 L. J. C. P. D. 419 ; Oullischen v. Stewart, L. B. 306; see Grayy. Carr,!,. E. 6 Q. B. 13 Q. B. T>. 317; 52 L. J. Q. B. 622 ; 40 L. J. Q. B. 257 ; Gardner 648 ; Modoeanachi y. Milburn, L. B. V. Trechmann, L. E. 15 Q. B. D. IS Q. B. D. 67; 56 L. J. Q. B. 154; 54 L. J. Q. B. b\r,. 202. ASSIGNABLE CONTEACTS. 1027 And in such case an indorsee of tlie bill of lading may be Chap. ii. affected as to the construction by having express notice of the oharterparty ; as where he had himself made it as agent for the charterer [1). But a shipper of goods has in general no constructive notice of a charterparty ; nor is he botmd to inquire (m). Where a bill of lading was signed for goods shipped on the shipowner's account at a nominal rate of freight, a buyer of the goods, to whom the bill of lading was indorsed, was held entitled to delivery at the bUl of lading freight from a mortgagee of the ship who subsequently took possession ; though the contract of sale had in terms assessed a part of the price as freight, which was to be paid upon delivery of the goods («). — The original shipper of the J?o'^*i.^iis'i goods remains liable for the freight, though he has indorsed shipper, and delivered over the bill of lading ; and though it may have been afterwards indorsed to the shipowner by way of security (o). And where the consignee named in the bill of lading indorsed it with the express condition that the indorsee should pay freight and all charges, " without recourse to us," it was held that the shipowner might refuse to deliver to such substituted liability ; but that if he assented to the indorse- ment and delivered under it he could not afterwards charge the consignee (p). An indorsee remains liable on the bill of lading under the statute only so long as he holds the bill, and if he indorses it over with the property, his liability ceases {g) . If he sells the goods without indorsing and deli- vering the bill of lading he remains liable under the statute (r) . An indorsement and delivery of a bill of lading as a pledge Indorse- for bills of exchange or for an advance of money operates by biUof" common law only, and does not pass the property in the ggo^lyf goods with the liabilities under the statute, so as to charge (J) Kern v. Deslandes, 10 0. B. (o) Foxv.Nott,supra; see sect. 2, N. S. 205 ; 30 L. J. C. P. 297. ante, p. 1025. Un) Peek v. Zarsen, L. B. 12 Eq. (p) Lewis v. MeKee, L. R. 4 Ex. 378 ; 40 L. J. C. 763 ; The Stoma- 58 ; 38 L. J. Ex. 62. way 61 Ti J. Adm. 27. (?) Smurthwaite y , Wilkins, 11 C. {«') Keith V. Burrows, L. R. 2 Ap. B. N. S. 842 ; 31 L. J. 0. P. 214. Ca. 636 ; 46 L. J. C. 801 ; see Swan (r) Fowler v. Knoop, L. R. 4 Q. T. Barber, L. R. 5 Ex. D. 130 ; 49 B. D. 299 ; 48 L. J. Q. B. 333. L. J. Ex. 253. 3 V 2 1028 ASSIGNMENT OP CONTRACTS. Paet VI. the indorsee with the freight (s) ; but if such indorsee demands ' and takes delivery of the goods under the bill of lading he becomes bound by its term.s(^). So an indorsement under an agreement to accept bills drawn against the bill of lading gives no title to the indorsee, unless the condition of accepting the bills is satisfied (««) . Acceptance of the bills under such agreement gives the acceptor the right to have the bill of lading indorsed and delivered ; and if the bill of lading is disposed of contrary to the agreement, he may claim the proceeds or value of the goods {x). It is not a usual condi- tion in such agreements that the title of the indorsee should further depend upon his taking up the acceptances at maturity (y). Discharge A bill of lading retains its negotiable quality until dis- lading. charged by a complete delivery of the goods to the person having the right to claim under it (s). But the shipowner does not discharge the bill by delivery to the consignee named in it, without the production of the bill {a). Goods delivered at a wharf or warehouse to be held under a stop order for the freight remain in the same position as during the carriage in relation to the bill of lading, which continues ia force for passing the property and liabilities by indorsement until the stop is removed and the goods duly delivered (6). .An in- dorsement and delivery of a bill of lading carries with it the right of action for a wrongful delivery of the goods by the carrier or warehouseman whose duty it was to hold the goods imder the biU. of lading, though the wrongful delivery took Bills of place before the indorsement (c). — Where a bill of ladins is lading m ' ° sets. (s) Sewell T. JSurdick, L. R. 10 Gabarron v. Kreeft, L. R 10 Ex. Ap. Ca. 74 ; 53 L. J. Q. B. 399 ; 274 ; 44 L. J. Ex. 238 ; Marabita v. see Fox v. Nott, 6 H. & N. 630 ; 30 Imp. Ottoman Bk., L. R. 3 Ex. D. L. J. Ex. 2.59; Short v. Simpson, 164; 47 L. J. Ex. 418. L. R. 1 C. P. 248 ; 35 L. J. C. P. (y) Coventry v. Gladstone, L. R. 4 147; Bristol Bank v. Midland Bi/., Eq. 493 ; 37 L J 30 (1891) 2 Q. B. 653 ; 61 L. J. Q. B. (z) Hatherley, L." C, Barber v. 116- Mei/crstein, L. R. i H. L. 329; 39 {t) Allen T. Coltart, L. R. 11 Q. B. L. J. C P 187 D. 782 ; 52 L. J. Q. B. 686. (a) The Stettin, L. R. 14 Adm. (ti) Shepherd v. Harrison, L. R. 6 142 ; 68 L. J. Adm. 81. H. L. 116 ; 40 L. J. Q. B. 148. (h) Barber v. Mei/erstein, supra. {z) Lutscher v. Comptoir d'Ss- (c) Bristol Bank v. Midland Eii., cowpte, L. R. 1 Q. B. D. 709 ; see supra. ASSIGNABLE CONTRACTS. 1029 drawn in a set of two or three, the shipowner is discharged Chap. II. hy delivering the goods to the first presented before he has notice of the indorsement of another of the set; but the delivery by him does not affect the right of property as between the several indorsees (rf). As between indorsees, the first indorsee for value of one of the set acquires a. prima facie title to the goods as against subsequent indorsees of other bills of the set ; and mere notice that the bill is one of a set is immaterial to the priority (e). The Bills of Lading Act, s. 2, saves the right of stoppage stoppage in transitu of an unpaid vendor against the original shipper in transitu or owner (/) . There is no such right against a subsequent of i^ng.''^ indorsee of the bill of lading who takes it bond fide and for value ; and though it was indorsed to him as security for a past debt (g). But subject to the right of such indorsee the unpaid vendor may claim the right of stoppage as against any surplus value of the goods beyond the claim of the indorsee, or against any unpaid purchase money if the indorsee is a sub-purchaser (A). The lien of an unpaid vendor is not affected by his giving a bill of lading or a delivery order, so long as he remains in possession of the goods as vendor (^). The Act, s. 3, binds the master or other person signing a Estoppel bill of lading to the indorsee for the goods therein represented shippfd.° ^ to have been shipped (k) . He does not discharge his liability by shipping them or part of them by another ship (l). But he is not bound by an erroneous measurement of the goods in fact shipped (>«). A bill of lading with the condition, (d) Barber v. Meyersiein, L. E. 4 628 ; Kemp v. FalJc, L. R. 7 Ap. Ca. H.L. 317; 3JL. J. C.P. 187; Glyii bTi; 52 L. J. C. 167; Sellamy v. V. E. # W. India Hocks, L. R. 7 Ap. Daveij, (1891) 3 Ch. 540 ; 60 L. J. Ca. 591 ; 52 L. J. Q. B. 146. C. 778. («) Sarber v. Meijerstein, supra ; (i) Imperial Bk. v. London $■ K. Sanders \. Maclean, L. K. 11 Q. B. Bocks, L. R. 5 0. D. 200 ; 46 L. J. D. 327 ; 52 L. J. Q. B. 481. C. 335. (/) Ante, p. 1025. (A) Ante, p. 1025. Iff) Gurnet/ v. Behreud, 3 E. & B. (I) Smith v. Tregarthen, 56 L. J. 622 ■ 23 L. J. Q. B. 265 ; Pease v. Q. B. 437 ; see Lishman v. Christie, Gloahec, L. K 1 P. C. 219 ; Zeask v. L. R. 19 Q. B. D. 333 ; 56 L. J. Q. Scott, L. R. 2 Q. B. D. 376 ; 46 B. 538. li. J. Q. B. 576. (»m) Blanchetv. Powell's Coll., L. R. (A) Exp. Golding, L. R. 13 C. D, 9 Ex. 74 ; 43 L. J. Ex, 50. 1030 ASSIGNMENT OF CONTRACTS. Pabt VI. " quantity value and contents unknown," presumptively ex- cludes any description therein given as against the master signing it ; who is taken to accept them for whatever in fact they are [m) . Assign- ment of policies of life insurance. Notice of assign- ment. Form of ment. By the Policies of Assurance Act, 1867, 30 & 31 Yict. c. 144, heing " An Act to enable assignees of policies of life assurance to sue thereon in their own names," s. 1, "Any person or corporation now being or hereafter becoming entitled by assignment or other derivative title to a policy of life assurance, and possessing at the time of action brought the right in equity to receive and the right to give an effectual discharge to the assurance company liable under such policy, for moneys thereby assured or secured, shall be at liberty to sue at law in the name of such person or cor- poration to recover such moneys." — S. 3. No assignment shall confer on the assignee any right to sue " until a written notice of the date and purport of such assignment shall have been given to the assurance company liable under such policy at their principal place of business ; and the date on which such notice shall be received shall regulate the priority of all claims under any assignment ; and a payment bom fide made in respect of any policy by any assurance company before the date on which such notice shall have been received shall be as valid against the assignee giving such notice as if this Act had not been passed." — S. 5. "Any such assignment may be made either by indorsement on the policy, or by a separate instrument in the words or to the effect set forth in the schedule hereto, such indorsement or separate instrument being duly stamped." — S. 6. Every assurance company shall, upon the request in writing of any person by whom any such notice was given deliver an acknowledgment in writing of their receipt of such notice; and every such written acknowledgment, if duly signed, shall be conclusive evidence against the company of their having duly received the notice. (m) Lebeau v. Gen. Steam Nav., L. R. 8 C. P. 88 ; 42 L. J. C. P. 1 ; see Ttdli/ v. Terry, L. R. 8 0. P. 679 ; 42 L. j. C. P. 240 ; ante, p. 922. ASSIGNABLE CONTRACTS, 1031 The effect of the statute is restricted to enabling the Chap. il. assignee to sue in his own name; it does not give the construc- assignee a better title than his assignor, nor does it discharge ^ct.°**'^^ him from any claims and equities subsisting against the assignor respecting the policy, or from the effect of misrepre- sentation in obtaining it (n) . The statute binds the assurance company as debtors to pay the sum insured to the assignee ; and they are not in the position of trustees, who can pay the money into Court (o). Where a policy is assigned as security for a debt, as the insured retains an interest, the company is not bound to pay to the assignee without the receipt of the insured or his representative, or without a dispensation from the Court ( p). The mere deposit of a policy of insurance as security for a debt is not an assignment within the Act ; nor is it made such by a formal notice given to, and acknow- ledged by the company (g). And an agreement to assign upon request is not an assignment within the Act (r) . An express condition in the policy " that it shall not be assign- able " excludes it from the operation of the Act ; but it does not prevent the insured dealing with the beneficial interest in the policy («) . The date of the notice of assignment given to the assurance company regulates the priority of claims for payment against the company ; but it does not determine the priority of claimants to the money between themselves (t). The liability under a policy of life assurance may be trans- Transfer ferred from one assurance company to another by the agree- under ment of all parties operating as a novation, or by acceptance P°'^<=y- by the assured of the liability of the transferee company in place of the original company (u). But by the Life Assurance Companies Act, 1872, 35 & 36 Vict. c. 41, s. 7, " where a company has transferred its business to, or been (n) See sect. 2 ; British EquitahU Webster v. British Empire Ass., L. Ins. V. Great West. By., 38 L. J. 0. R. 15 C. D. 169 ; 49 L. J. C. 769. 132. (r) Spencer-^. Clarke, L. R. 9 C. D. (o) Matthew t. Northern Ins., L. 137 ; 47 L. J. C. 692. R. 9 C. D. 80 ; 47 L. J. C. 562. (s) Be Turcan, L. R. 40 C. D. 6 ; [p) Ciirtius T. Caledonian Ins., L. 58 L. J. C. 101. R. 19 C. D. 534 ; 51 L. J. C. 80. {t) Newman v. Newman, L. R. 28 (?) Crossley v. Glasgow Ass., L. R. C. D. 674 ; 54 L. J. C. 698. 4 C. D. 421 ; 46 L. J. 0. 65 ; {u) See ante, p. 684. 1033 ASSIGNMEKT OF CONTHACTS. Past YI. amalgamated with another company, no policy-holder in the first-mentioned company who shall pay to the other company the premiums accruing due shall be deemed to have aban- doned any claim which he would have had against the first- mentioned company, on due payment of premiums to such company, or to have accepted in lieu thereof the liability of the other company, unless such abandonment and acceptance have been signified by some writing signed by him or by his agent lawfully authorised." Policies of marine insurance. Assign- ment of teneiit of insurance. By the Policies of Marine Assurance Act, 1868, 31 & 32 Yiet. c. 86, s. 1, " whenever a policy of insurance on any ship, or on any goods in any ship, or on any freight, has been assigned, so as to pass the beneficial interest in such policy to any person entitled to the property thereby insured, the assignee of such policy shall be entitled to sue thereon in his own name ; and the defendant in any action shall be entitled to make any defence which he would have been entitled to make if the said action had been brought in the name of the person by whom or for whose account the policy sued upon was effected." — By s. 2, "it shall be lawful to make any assignment of a pohoy of insurance by indorsement on the policy in the words or to the effect set forth in the schedule hereto." If the owner of a ship with a policy of insurance upon it assigns his property in the ship without assigning the policy to the buyer, he cannot recover for a subsequent loss ; either in his own right, because he retains no interest ; nor as trustee for the buyer, because the latter is not entitled to the benefit of the policy (.r). So upon the sale of a cargo during the voyage, without the benefit of the insurance, the vendor who has parted with all interest in the cargo cannot recover for a subsequent loss ; nor can he after partiag with all interest assign the policy to the buyer to enable him to recover such loss (y) . But an assignment may be made of {x) Fowles V. Innes, 11 M. & W. 10, {y) 2\'orth of England Co. v. Arch- angel Ins., L. R. 10 Q. B. 249 : 44 L.J. ti. B. 141. ASSIGNABLE CONTRACTS. 1033 the policy with all rights under it after a loss for which an Chap. ii. action has accrued, upon which the assignee may sue under the statute ; as in the case of the sale of cargo during the voyage with the insurance, whether lost or not lost ; or upon the sale of a ship after partial loss (2). A contract of sale prima facie does not carry with it the benefit of an insurance of the subject of sale; but delivery of the policy under the contract presumptively passes the benefit of it ; as where goods are sold at a price to cover cost, freight, and insurance, payable on delivery of the shipping documents, which include the policy of insurance as well as the bill of lading («). A contract of sale of a cargo, including "freight and insurance," was held to carry the full benefit of the existing policies, though they had been taken out for values in excess of the sale price, and paid in full by the insurers (b) . In an action by the assignee of a policy the defendant is entitled to any defence arising out of the policy which would be available in an action by the original insurer ; but not to a set-o£E or counterclaim for any other claims against him (c). By the Companies Clauses Act, 8 & 9 Vict. c. 16, Deben- ss. 38 — 49, mortgages and bonds may be issued by a com- company, pany under the Act, which are transferable by deed and registration in the books of the company ; and an action must be brought in the name of the transferee (<^). By the Mortgage Debenture Act, 1865, 28 & 29 Vict. c. 78 (and Amendment Act, 1870), mortgage debentures upon real securities may be issued by companies, which are trans- ferable by indorsement and registration. — By the Local Local loan Loans Act, 1875, 38 & 39 Yict. c. 83, s. 6, local authorities tures. may raise loans by the issue of debentures payable to bearer and transferable by delivery ; and by s. 6, may issue deben- («) Zloyd v. Fleming, L. B. 10 Q. vaco v. lucas, 3 B. & S. 89 ; 31 L. J. B. 299; 41 L.J. Q. B. 93. Q. B. 296. (a) Fer cur. Zloyd v. Fleming, (o) See sect. 1, supra; Fellas v. supra; Parke, B., Fowles v. Innes, Neptune Ins., L. E,. 5 C. P. D. 34; supra. 49 L. J. C. P. 153. (b) Falliv. Universal Ins., 4 D. F. {d} Vertue v. East Anglian Ey., 6 & J. 1 ; 31 L. J. C. 313 ; see Tam- Ex. 280 ; see ante, p. 1013. 1034 ASSIGNMENT OF CONTRACTS. Pabt VI. ture stock with registered title, and with a certificate entitling the bearer to the stock and transferable by delivery. Construe- A debenture or bond of a company does not import any bentuies. charge upon the property of the company, unless expressly mentioned to be so charged ; and a debenture which charges all the current property of the company for the time being gives no specific charge upon any portion, which would pre- vent the company dealing with it within their powers (e) . But debenture holders are entitled to priority over execution creditors who have not realised their debts, as to property covered by the debentures (/). Debentures of a company, though secured upon the goods, chattels and effects of the company for the time being, are excepted from the applica- tion of the Bills of Sale Acts (g) . An instrument issued by a company entitled " a debenture " expressed to be payable to a person or order, with coupons for interest attached, was held to be insufficiently stamped with a promissory note stamp, and to require a debenture stamp under the Stamp Act, 1870 ; though no definition of a debenture is given in that Act or elsewhere (A). Debentures issued without borrowing power may be valid and assignable so far as the proceeds have been in fact expended in discharging debts of the company (») . rf shares*''^ The Certificates of ownership of shares and stock of com- panies which are transferable by deed and registration are not negotiable, and convey no title by delivery; but the production of the certificate is a condition of obtaining registration, and a deed of transfer duly executed with delivery of the certificate gives a title to registration, and an equitable title to the shares or stock to the transferee (k). A (f) Norton v. Florence Land Co., Read y . Joannon , Jj. R. 25 Q. B D L. R. 7 C. D. 332 ; Wheathy v. Silk- 300 ; 59 L. J. Q. B. 644 ; He Stan- stone Coal Co., L. R. 29 C. D. 715 ; dard Co., (1S91) 1 Ch. 627 ; 60 L J. Be Some, L. R. 29 C. D. 736 ; C. 292. SiMuek V. Selms, 56 L. J. 0. 536 ; (/») British India Co. v. Inland Brunton v. Electrical Engineering Mei-enite, L. R. 7 Q B D 165 • 50 Corp., (1891) W. N. 203. L. J. Q. B. 517 ; see Re Sodman, (/) Sc Opera Co., (1891) 3 Ch. 61 L. J. C. 31. 260 ; 60 L. J. C. 839 ; see Se Sull (i) See ante, pp. 58, 510. # Barnsley R,j., L. R. 40 C. D. 119; \k) Soc. Gen. de Paris v. TTalker 58 L. J. C. 205. L. R. 11 Ap. Ca. 20 ; 55 L. J. Q b' {g) See B. of S. Act, 1882, s. 17 169 ; ante, p. 1007 ; see Williams v ASSIGNABLE CONTRACTS. 1035 sliare certificate issued by a company estops the company Chap. Ii. from denying the title under it (A) .—Scrip certificates of shares in a company, purporting to entitle the bearer to be ■registered as the holder upon payment of the amount of the shares are transferable by delivery according to mercantile usage, and convey a good title to a transferee who takes them bond fide and for value (/) . And in general a person who negotiates an instrument purporting to be transferable by delivery is estopped by the representation on the face of it from disputing the title of a bond fide holder for value, though the instrument is not in itself negotiable (in) . By the National Debt Act, 1870, 33 & 34 Yict. c. 71, PubKo s. 26, " A stockholder may obtain a stock certificate, that is, tificates. " a certificate of title to his stock or any part thereof, with coupons annexed, entitling the bearer of the coupons to the dividends on the stock." By s. 32, " a stock certificate, unless a name is inscribed therein, shall entitle the bearer to the stock therein described, and shall be transferable by delivery." The bearer of a stock certificate may convert the same into a nominal certificate, which is then not transferable, by insert- ing therein the name of some person. — Dividend warrants Dividend issued by the Bank of England, which are drawn payable to the stockholder named, and bearing a receipt to be signed by him before issue, are payable to bearer as against the bank, but are not negotiable by delivery with the effect of passing the title as against the true owner («). — Exchequer bills, Exchequer which are drawn in blank and payable to bearer, are nego- tiable and give a good title by delivery to a bond fide Colonial Bk., L. E. 38 C. D. 388; 57 2 Q. B. D. 194; 46 L. J. Q. B. L. J. C. 826 ; London % Co. BIc. v. 346 ; see Baker t. Nottingham Bk., London # Plate Bk., L. E,. 20 Q. B. 60 L. J. Q. B. 642. D. 232 ; 57 L. J. C. 601 ; Simmons {m) Per cur. Goodwin v. Rolarts, V. London J. S. Bk., (1891), 1 Ch. L. E,. 1 Ap. Ca. 476; 45 L. J. Ex. 270. 748; SumballY. Metrop. Bk., supra; (k) Tomkinsonv. Balkis Co., {1S91), JSaston r. London J. S. Bk., L. E. 2 Q. B. 614; 60 L. J. Q. B. 558; 34 C. D. 95; 56 L. J. C. 569; see Se Bahia Si/., L. E. 3 Q. B. Baker v. Nottingham Bk., supra. 584; 37 L. J. Q. B. 176. (n) Partridge v. Bank of England, [l) Rumball v. Metrop. Bk., L. E. 9 Q. B. 396. 1036 ASSIGNMENT OF COJJTRACTS. Paet VI. holder (o). — Postal orders are not negotiable in form, being payable to the signed receipt of a named payee ; nor are they made negotiable by the regulation that they are payable through a banker without the signature of the payee ; but they are discharged by payment, to whomsoever paid (p) . Bonds and scrip of foreign governments, purporting to be payable to bearer, are negotiable by general custom of merchants (g) ; but bonds of this kind without the interest coupons attached, are held to require a special custom to prove them to be negotiable (r) . Postal orders. Foreign Govern- ment bonds. (o) Wookey v. Foh, 4 B. & Aid. 1. \p) Fine Art Soc. v. Union Bk., L. B. 17 Q. B. D. 705 ; 56 L. J. Q. B. 70. [q) Oorgier v. Mieiille, 3 B. & 0. 45 ; Goodwin v. Moharts^ L. K. 1 Ap. Ca. 476 ; 45 L. J. Ex. 748. (r) Picker v. London ^ Co. Bh., L. R. 18 Q. B. D, 615 ; 56 L. J. Q. B. 299. 1037 Chapter III. COYENANTS EUNNING WITH LAND. PAOE Covenants running with land — benefit of covenant — bur- den of covenant 1037 Covenants between lessor and lessee — covenants running with, reversion by 32 Hen. VIII. o. 34 — parol tenancies 1040 Covenants for title — for rent and services — for renewal of lease — covenants and conditions against assignment . . 1043 Covenants to repair — covenants relating to use of land — covenants restrictive of trading — collateral covenants. . 1046 Covenants running with incorporeal hereditaments — with reversion by estoppel — covenants in lease of personal chattels 1049 Assignee of term — underlessee — mortgagee — executor as assignee 1052 Assignee of reversion — mortgagee of reversion — rever- sioner of leases under powers — merger of reversion .... 1054 Severance of reversion — severance of demise 1056 Liability of lessee after assignment of term — rights of lessor after assignment of reversion — continuance of liability of assignee of term — indemnity of assignor by assignee 1058 Assignment in equity of benefit of covenant — of burden of covenant — purchaser with notice of covenant — re- strictive and affirmative covenants — constructive notice . 1060 Certain covenants relating to the title or use of land are Covenants said to run with the land, because the burden or benefit of wittTaid. the covenants pass upon an assignment of the land to which they relate. Covenants become thus annexed to the posses- sion of land by rules of common law and by statute ; and they may become binding upon the possessor upon principles of eqmty. Covenants run with the land at common law for or against the possessor by reason of the relation of the matter of the covenant to the land, without express limita- tion of the terms of the covenant to the heirs or executors or 1038 ASSIGNMENT OF CONTRACTS. Part VI. assigns of the parties («) ; and it is now enacted by the Con- veyancing Act, 1881 (44 & 45 Yict. c. 41), s. 58 (1), that "a covenant relating to land of inheritance shall be deemed to be made with the covenantee, his heirs and assigns, and shall have effect as if heirs and assigns were expressed " ; and (2), "a covenant relating to land not of inheritance shall be deemed to be made with the covenantee, his executors, ad- ministrators, and assigns, and shall have effect as if executors, administrators, and assigns were expressed." Covenants running with land are not restricted by the rule against perpetuities, which applies only to limitations of estates and interests in property {b). Benefit of By the common law the benefit of covenants running running ^ With land passes to the grantee or assignee of the land ia all with land, g^ggg . g^g (-j^g covenants for title and for further assurance in a deed of conveyance in fee which pass to the heir or assignee of the grantee, who may sue^in his own name and in his own right (c) ; and the covenant for quiet enjoyment in a lease which runs with the demised land for the benefit of the executor of the lessee or of his assignee for the time being (i^). It is not necessary to this result that the covenantor should have conveyed the estate to the covenantee ; he may be a stranger to the land except through the covenant (e) . But it is essential that the covenant should be made to the owner of the estate ; for if the ovmer is a stranger to the covenant, though it relates to the land, neither he nor his assignee can acquire any right under it(/). In conveyances operating under the Statute of Uses in which the covenants for title are made with the grantee to uses, the statute transfers the seisin with the covenants to the uses as they arise, whether (a) Sean of Windsor'' s Case, 5 Co. (c) MiddlemoreT. Goodale.Gio.Cax. 24 ; Sacheverill v. Froggatt, 2 Wms. 503. Saund. 367 (a) ; per cur. Minshull v. (d) Xoke v. Awda; Cro -Eliz 373- Oakes, 2 H. & N. 793 ; 27 L. J. Ex. Campbell v. lewis, 3 B & Aid 392 198 ; post, -p. 1047. (e) The Frior's case, Co. Lit. 385 a; (h) London ^- S. W. Ry. v. Gomm, Spenar's case, 5 Co. 17 4 ■ Sharp v L. R. 20 C. D. 562 ; 51 L. J. C. 530 ; Tl'aterhome, 7 E. & B. 816 • 27 L J Mackenzie v. Ohilders, L. E. 43 C. D. Q B 70 ' 265 ; 29 L. J. C. 194. (/) Co. Lit. 385 « ; TFeii v. Sm- sell, 3 T. K. 393 ; post, p. 1041. COVENANTS RUNNING WITH LAND. 1039 limited by the deed or by subsequent appointment ; but chap. hi. covenants made witb a person to whom a use is limited pass "^ with his estate only. Hence if land is limited to such uses as the purchaser shall appoint and in default of appointment to him in fee, covenants for title pass with his estate, but not with estates appointed under his power, because the appoint- ment defeats his estate with which the covenants run {g). On the other hand, by the common law a covenant by the Burden of owner of land, so far as it rests merely in contract and does not convey any estate or interest in the land, cannot be annexed to the estate of the covenantor, so as to cast the burden upon a grantee or assignee ; except in the case of covenants in leases which create the relation of landlord and tenant (A). "At the common law the benefit of covenants made upon a purchase runs with the land, but not the burden, except in the case of a lease, when the assignee would, as a matter of course, refer to the lease itself, and find the restriction set down"(«). Thus where tenant in fee simple granted a rent charge out of the land and covenanted to pay the same, and afterwards conveyed away the land, the covenant was held to be a mere personal liability, which did not pass with the conveyance or bind the grantee at law (k). Where land was conveyed in fee in consideration of a rent charge out of it and of a covenant by the grantee to the grantor to erect and keep in repair buildings upon it, it was held that the covenant did not pass with the land so as to bind an assignee of the grantee {I). And a conveyance in fee with a covenant by the grantee his heirs and assigns to keep and repair a wall fence for ever, was held not to charge an assignee with the covenant (m). Upon the same principle {(/) Roach V. Wadham, 6 East, 289 ; eott, L. E. 3 C. D. 694. per cur Spoor t. Green, L. K. 9 Ex. (k) ]3rewsfer v. Kiichm, lIj.lia.jTo.. 105 ; ^3 L. J. Ex. 57. 317 ; 12 Mod. 166. (A) See post, p. 1040. (I) Milnes v. Branch, 5 M. & S. ii) Fer cur. Dennett v. Atherton, 411 ; Saywood v. Srtmswick B. S., L. E.. 7 Q. B. 326 ; 41 L. J. Q. B, L. R. 8 Q. B. D. 403 ; 51 L. J. Q. B. 167' Mellish, L. J., Leechv . Schiceder, 73 ; see Andrew v. Aitlcen, L. K. 22 L. R. 9 Ch. 475; Austerierry y. CD. 218; 52 L. J. 0. 294. Oldham, L. R. 29 C. D. 760 ; 55 L. (m) Eardman v. Child, L. R. 28 J. C. 633; overruUng Cooke v. Chil- C. D. 712 ; 54 L. J. 0. 695. 1040 ASSIGNMENT OF CONTRACTS. Paet VI. a covenant by the owner of a theatre to allow the covenantee the use of a certain number of boxes at the theatre, as it did not convey any interest in any specific boxes, was held to be merely a personal covenant and not to charge an assignee of the theatre (w). Where a conveyance of land was made to the use that the present buildings should not at any time be altered nor any trade carried on therein, and, subject thereto, to uses for the purchaser and his heirs ; the restriction was construed as matter of personal covenant, binding the pur- chaser only (o) . And where the owners of certain works covenanted with a railway company to procure all the lime- stone wanted for the works at a certain quarry, and to carry it by the railway, the Court of Chancery, following the doc- trine of law, held that an assignee of the works was not bound by the covenant ; for that " great detriment would arise and confusion of rights, if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon their lands and tenements a peculiar character, which should follow them into all hands, however remote" {p). But in all such cases the purchaser or assignee of the land may be affected by notice of the covenants, to the extent that the Court upon equitable principles will restrain him from using the land in a manner inconsistent with them {q). Covenants between lessor and lessee running Tvith the land. Covenants run with reversion by 32 Hen. VIII. c. 34. By the common law covenants in a lease which run with the land pass both the benefit and the burden to the assignee of the term, by reason of the privity of estate with the lessor ; but such covenants did not pass to an assignee of the reversion until made or declared to do so by the statute 32 Hen. YIII. c. 34 (r). By that statute, after reciting " that by the common law no stranger to any covenant could take advantage thereof, but only such as were parties or (n) Flight V. Glossopp, 1 Bing. N. C. 125 ; Scott V. Howard, L. R. 6 Ap. Ca. 295 ; see Leader v. Moody, L. R. 20 Eq. 145 ; 44 L. J. C. 711. (o) Hodgson v. Coppard, 29 Beav. 4 ; 30 L. J. C. 20. (p) Keppell V. Bailey, 2 M. & K. 517 ; and see Jie Breu-'.i Jiaiale, L. R. 2 Eq. 206 ; 35 L. J. C. 845 ; Ashton T. Stoek, L. R. 6 C. D. 719. (q) See post, p. 1060. (»■) Thiirsby v. Flant, 1 Wma. Saund. 240 a, n. (o) ; Spencer's case, 1 Smith, L. C. 9th ed. 65 ; WUde, C. J., Bickford v. Parson, 5 C. B. 929. COVENANTS RUNNING WITH LAND. 1041 privies thereto," it is enacted, (s. 1) to the effect that all Csap. hi. persons, being grantees, or assignees 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 indentures of leases, as the said lessors and grantors might have had. And by s. 2, it is 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 hke 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. — The statute Construc- applies only to covenants of a kind that run with the term at statute. common law, and does not extend -to collateral covenants ; so that if the covenant be such that the lessor could sue, or be sued by, the assignee of the lessee at common law, the assignee of the lessor can sue or be sued on the same cove- nant under the statute (.s) . Covenants which are not made with the legal reversioner are not within the statute : as where a mortgagor and the mortgagee join in leasing the mortgaged premises, and the covenants of the lessee are made to the mortgagor only, the assignee of the mortgagee is not entitled at law to the benefit of the covenants (^). And where a mortgagor leased by a deed in which the mortgage was recited, leaving only the equity of redemption in the mortgagor, it was held that parties were estopped from asserting a reversion with which the covenants could run (it). If a husband and wife, seised in right of the wife, lease, covenants made with the husband only will not run with the reversion («). If tenants in common execute a joint lease, (s) 5 Co. 18 a, Spencer's case. Per {t) Webb v. Russell, 3 T. E. 393 ; cur. Martyn v. Williams, 1 H. & N. aiile, p. 1038. 817; 26 L. J. Ex. 121, Kindersley, (») Pargeterv. Karris, 7 Q. B. 708. V.-C, Norval v. Pascoe, 3i L. J. C. [x] WooHon v. Steffenoni, 12 M. & 8.5. W. 129. L. 3x 1042 ASSIGNMEKT OF CONTRACTS. Parol tenancies. PabtVI. witli covenants to them jointly, the covenants will not pass to the assignee of the share of one of them ; so if tenants in common demise severally, and the covenants are made to them jointly ; or if joint tenants demise and the covenants are made with one severally, such covenants do not run with the reversion (y) . But where the covenants are made with joint parties it has heen held sufficient for the reversion to be in one of them, to make the covenants run with the land against an assignee of the term ; and the covenantees must all join in suing (z). The above rule of the common law by which covenants run with the land demised for and against an assignee of the lessee applies only to covenants in indentures of lease, and not to simple contracts contained in parol agreements of tenancy («). And the above statute of 32 Hen. YIIL, in which covenants are made to run with the reversion, applies in terms only to indentures of lease, and has no application to parol tenancies (6). Hebce upon the assignment of the reversion of a parol tenancy, though the relation of landlord and tenant is transferred to the assignee without attornment or consent of the tenant by statute 4 Anne, c. 16, s. 9, and the assignee of the reversion may distrain, or may bring an action of debt for the rent reserved, or an action for use and occupation, or an action for waste, yet he cannot Sue in his own name upon simple contracts of the lessor and lessee relating to the tenancy (c). But if after the assignment of the reversion or of the tenancy the parties continue upon the terms of the original agreement, as may be evidenced by pay- ment and acceptance of rent under it, a renewed tenancy may be implied between the parties importing the original terms, upon which the assignee may sue or be sued in his own name and right (d). (y) Thompson v. IlalcewiU, 19 C. B. N. S. 713; 35 r. J. C. P. 18. {z) IFaJcefieU v. Jlrouii, 9 Q. B. 209 ; Magna ij v. Edwards, 13 C. B. 479; 22 L. J. C. P. 170. (a) liWiutt V. Johnson, L. R. 2 Q. B. 120; 36 L, J. Q. B. 44. (4) Staiiden v. Vhrismas, 10 Q. B. 135 ; see Bickfordy. Parson, 5 C. B. 930 ; post, p. 1058. [c) Brydges v. Lewis, 3 Q. B. 603 ; Standen v. Cli risnias, supra ; see A II- cock V, Moorhome, L. R. 9 Q. B. D. 366. [d) Buckuorth v. Simpson, 1 C. M. & R. 834 ; Ardeii v. Sullivan, 14 COVENANTS RUNNING WITH LAND. 1043 The above rules apply only to covenants which in their Chap. III. matter relate to the land ; or, as it is variously described, -^^hat " when the covenant extends to a thing in esse parcel of the r°™°f"t^ demise " [e) ; when it " touches and concerns " the land or the land, the " profits " of the land (/) ; when it " tends to the support and maintenance of the thing demised " {g) ; "if it affects the nature, quality, or value of the thing demised, indepen- dently of collateral circumstances ; or if it affects the mode of enjoying it "(A). — Accordingly the ordinary covenants for CoTenants title and for quiet enjoyment in a conveyance in fee and in a lease run with the land, and pass with the estate of the covenantee («') . And by the Conveyancing Act, 1881, s. 7, the covenants for title implied in a conveyance under the Act " shall be annexed and incident to, and go with the estate or interest of the implied covenantee, and shall be capable of being enforced by every person in whom that estate or interest is, for the whole or any part thereof, from time to time vested." A covenant by a lessor to indemnify his lessee against breaches of covenants in a superior lease is not equi- valent to a covenant for quiet enjoyment, and does not run against an assignee of the reversion (A-) . — Covenants for the Covenant production of title deeds run with the land in favour of a title deeds, subsequent purchaser ; and the burden of such covenants runs with the land with which they are retained, at least so far as to bind a purchaser or assignee who takes the deeds with notice of the covenant (/). — A covenant in a lease to Covenant TOT TPUt pay the rent reserved runs, as to the burden of it, with the and ser- term ; and, as to the benefit of it, with the reversion ; the ^°®^" Q. B. 832; 19 L. J. Q. B. 268 ; see v. Faitison, 10 East, 135 ; per cur. Smith-v. Eggington,li.'R.^G.'P.li5; AekroydY. Smith, 10 C. B. 187. 43 L.J. 0. P. 140; FhillipsY. Miller, (») Middlemore v. Goodale,Gro. Gar. L. E. 10 C. P. 420 ; 44 L. J. C. P. 603 ; Campbell v. Lewis, 3 B. & Aid. 265. 392 ; see ante, p. 1038. [e] Spencer's case, 5 Co. 16 a; 1 {k) Doughty y. Bowman, 11 Q. B. Smith, L. C, 9th ed. 65. 444 ; see Piggott v. Stratton, 1 D. T. (/) Per cur. Williams v. Earle, L. & J. 33 ; 29 L. J. C. 1. R. 3 Q. B. 749 ; 27 L. J. Q. B. 231 ; {I) See Sugden, Vend. & Puroh. see Vyvyan v. Arthur, 1 B. & C. 410. 480, 11th ed. See Barclay v. Maine, {g) Per cur. Sampson v. Easterby, 1 S. & S. 449 ; Fain v. Ayers, 2 S. 9 B. & C. 516. S. 533 ; and see Conveyancing Act, (h) EUenborough, C. J., Congleton 1881, s. 9. 3x2 1044 ASSIGNMENT OF CONTRACTS. Paet VI. law transfers the covenant as incident to the rent(;«). Hents reserved and services in the nature of rent, as the doing suit to a mill of the lessor, are incident to the reversion at common law and pass to the assignee, together with the implied covenant to do such services («)• -A- covenant to pay a rent-charge out of land runs with the rent-charge, as to the benefit ; but the burden of the covenant, merely as matter of covenant, does not run with the land against an assignee of the covenantor (o). Covenant A Covenant for renewal of a lease runs with the term, and, TOT TPn P"W T 1 of lease. as to the burden of it, with the reversion {p). A covenant to renew at the request of the lessee entitles his executors to a renewal at their request (q) ; but a request during the term is a condition precedent to the liability (r). An agreement with a tenant to grant a new lease upon certain specified terms, when required to do so, is assignable ; it passes to the trustee in bankruptcy of the tenant, who also may assign it to a purchaser (.s). A covenant in a lease with the lessee, his executors, administrators and assigns to sell the land to him at his option passes with the lease to an assignee ; and if the lessee dies intestate without exercising the o^Jtion, his ad- ministrator, and not his heir, has the option of purchasing the fee simple for the benefit of his personal estate {t). But a covenant to renew a lease with all the covenants of the former lease does not import that the new lease is to contain a like covenant for renewal (ii) ; unless it expressly stipulates for including the same covenant, and it is then construed as a covenant for perpetual renewal to be included in every renewed lease (x) . Where a lease was granted to two persons (m) Sachemrell v. Froggatt, 2 "Wms. C. D. 640 ; 52 L. J. C. 191. Saund. 367 a. (s) Bucldand v. PapiUon, L. R. 2 (k) ryryaii y. Arthur, 1 B. & C. Ch.67; 3CL.J.C.81; ante,-p.im\. 410 ; see Richardson v. Capes, 2 B. & {t) Re Adams, L. R. 27 0. D. 394; C- 841. 64 L. J. C. 87 ; see Re Cousins, L. E. (o) See«Hfe, p. 1039; post, p. 1050. 30 C. D. 203. {p) Best, J., T'ernon v. 6mit!i, 5 («) Iggiildeii v. Mag, 2 B. & P. B. & Aid. 11 ; see Simpson v. Clayton, N. E. 4 49 ; 9 Ves. 325. 4 Bing. N. C. 780; Shelbiirne v. {i) Hare x. Bara,ss,'il^. & :5. io ■ Buldvlph, 6 Bro. C. C. 363. 27 L. J. C. 86;" see Sainburne v ( bonis propriis ; but he may in general limit his liability to the assets of the deceased by pleading that he was not assignee otherwise than as exe- cutor (s). The profits of the term, subject to the rent, are assets of the testator's estate, and for the amount of such profits as could reasonably be made the executor is personally responsible ; but the rent reserved is the profit of the land- lord and no part of the assets, and therefore to the extent of the profits the executor is liable to the landlord for the rent de bonis 2^i~oi)riis {a) ; and if the executor has accepted the lease he is liable, to the landlord as assignee de bonis propriis upon the covenants running with the land, as a cove- (r) See ante, p. 10.50. 32 ; 40 L. J. Ex. 23. See ante, [s) Williams t. Bosanquet, 1 B. c& p. 118. B. 238 ; see Me Gee, L. R. 24 Q. B. (y) Titterton t. Cooper, L. R. 9 D. 65 ; 59 L. J. Q. B. 16. Q. B. D. 473 ; 51 L. J. Q. B. 472 ; (() LticasT. Comerford, 1 Ves. jun. see post, p. 1097. 235. (z) Wollaston v. Halcewill, 3 M. & hi) Bailj/ V. De Crespigny, L. E,. 4 G. 297 ; see Eearslcy v, Oxky, 2 H. Q. B. 180 ; 38 L. J. Q. B. 98 ; see & C. 896. Tendr'mg Union v. Doioton, (1891) 3 (a) Rn-hery v. Stevens, 4 B. & Ad. Ch. 265; 61 L. J. C. 82. 241 ; Hopwood v. niiiilcy, 6 0. B. (i-) miliams V. Bosanquet, 1 B. & 744; Ee Bowes, L. K. 37 0. D. 128; B. 238 ; White y. Sunt, L. B. 6 Ex. 57 L. J. 0. 455 ; post, p. 1082. 1054 ASSIGNMENT OF CONTRACTS. Paet VI. nant to repair (b) . So an executor c/e son tort by taking possession becomes chargeable with the covenants of the lease as assignee; and he may assign over to another (r^). — An executor cannot in general waive the term without re- nouncing the executorship altogether [d) ; but where the land is of less value than the rent, and there are no other assets, he may waive the lease altogether by notice to the landlord to that effect ie). And an executor is enabled by statute, 22 & 23 Vict. c. 35, s. 27, to discharge himself from all future claims under a lease by setting aside a sufficient sum to meet them, and assigning the lease to a purchaser and distributing the assets ; reserving to the lessor or his assigns the right to follow the assets. Assignee of The grantee, or devisee, or heir of the reversioner; or, if the reversion is a term of years, the executor or legatee, are assignees within the statute 32 Hen. YIII. c. 34, and as such become entitled to and chargeable upon the covenants annexed to the reversion for breaches after the assignment (/). A covenant to pay rent reserved during the term passes to the heir or devisee of the lessor as an incident of the rever- sion in fee, though the rent is not extended in terms to his heirs and assigns {g) . The grantee of a particular estate, as for life or for a term of years, in a reversion in fee, is an assignee within the statute 32 Hen. YIII. e. 34, and is entitled to the covenants and conditions of the lease {h). — Mortgagee The mortgagee of the reversion subiect to an existing- lease of rever- . "^ o sion. becomes entitled to all the remedies upon the lease and cove- nants, as being assignee of the legal reversion. But where a mortgagor remaining in possession leases, the mortgagee may {b) Tremeere v. Morison, 1 Bing. (/) BerisJci/ r. Custance, i T. E. N. 0. 89 ; Sleap v. Kewman, 12 C. B. 75 ; Johnson v. St. Peter's, 4 A. & E. N". S. 116. 520; see ante, p. 1040. ic) Taull T. Simpson, 9 Q. B. 365 ; {g) Sach-ei-erell v. Froggatt, 2 "Wmg. Williams v. Beales, L. R. 9 0. P. 177 ; Saund. 367 }. 43 L. J. G. P. 80. (h) Co. Lit. 215 «; m-ight v. (d) Fer ciir. Siiberi/ v. Stcpcns, 4 JBitrroughes, 3 C. B. 685 ; see Taile v B. &Ad. 244. GusUiig, L. R. 11 C. D. 273; 48 (e) Per cur. Iloniidge v. Jlllsoii, 11 L. J. C. 397. A. &E. 65.5. under powers. COVENANTS RUNNING WITH LAND. 1055 treat the lessee as a trespasser ; or by accepting rent may Chap. III. acknowledge him as tenant to himself; hut he is not assignee of the reversion or entitled to the remedies of the lease ((). If the mortgagor and mortgagee join in leasing and the cove- nants are made with the mortgagor only, the mortgagee or his assignees are not entitled to sue, upon the covenants, to which they are strangers (k) . And where the mortgagee is entitled to the covenants as assignee of the reversion, the mortgagor retains sufficient interest in the equity of redemp- tion to entitle him to restrain the lessee from doing any acts in contravention of the covenants to the injury of the rever- sion (I). — Where a lease is made under a power, as by the Eever- tenant for life in a settlement, the reversion of the lease pre- sumptively follows the limitations of the settlement; and upon the death of the tenant for life pending the lease the re- mainderman is an assignee within the statute 32 Hen. VIII. c. 34, and succeeds to the benefit and the burden of the covenants [m) . If the lease is not in accordance with the power, it may be valid as between the parties, either as taking effect out of the interest of the lessor or by way of estoppel against the lessee ; but it is not binding for or against persons claiming under the settlement {>/) . Upon the death of the lessor it is absolutely void, and a subsequent assignment of the term conveys no interest, nor any claim upon the covenants against the executor of the lessor (o). The lessee, or his assignee by an assignment made before the death of the lessor, can charge the executor upon the express covenants of the lease ; as upon the covenant for quiet enjoyment, under which he can recover damages for loss of the whole term (p) ; but not upon the covenants merely (i) Fer cur. Sogers Y. Siimphreys, i G. B. 340; 23 L. J. C. P. 115; see A. & E. 313 ; Keech v. Mall, Dougl. 8 Co. 71 a, Whitlock's Case; 2 Wms, 21 ; Thunder v. Belcher, 3 East, 449. Saund. 271 (7), SachevcrelV s Case. (k) Webb v. Russell, 3 T. R. 393; (k) Tellowly v. Oower, 11 Ex. 293 see ante, p. 1038. 24 L. J. Ex. 289. (l) Fairoloiigh v. Marshall, Ii. R. 4 (o) Andrew t. Fearce, 1 B. & P, Ex. D. 37. N. R. 158 ; ante, p. 1050 ; see Bp. of {m) liherwood v. Oldknow, 3 M. & Bangor v. Farry, (1891) 2 Q. B. 277 S. 382 ; Rogers v. Sumphreys, 4 A. & 60 L. J. Q. B. 646. E. 299; Bringloer. Goodson, 4 Bing. (p) Tt'ilUams v. Burrell, 1 C. B, N. C. 726 ; Greenaway v. Hart, 14 402. 1066 ASSIGNMENT 01'' ( O.NTUAOTS. Merger of reversion. PabtVI. implied in law, because sucli covenants are implied only during the continuance of the lessor's interest (9). — At com- mon law where a reversionary estate to which covenants were annexed became merged in the ulterior reversion, the cove- nants were extinguished together with the estate (r). But by the statute 8 & 9 Vict. c. 106, s, 9, " when the reversion expectant on a lease shall be surrendered or merge, the estate which shall for the time being confer as against the tenant under the same lease the next vested right to the same tenements shall, to the extent and for the purpose of pre- serving such incidents to and obligations on the same reversion as but for the surrender or merger thereof would have subsisted, be deemed the reversion expectant on the same lease." Severance The grantee of the reversion in part of demised premises of rsvGr- sion. is an assignee within the statute 32 Hen. YIII., of covenants apportionable to the part granted ; as the covenant to pay rent (s), and the covenant to repair (t). At common law he could not take the benefit of conditions of entry and other conditions, because they were incident to the entire reversion only, and destroyed by the severance (») . It is now expressly provided by the Conveyancing Act, 1881, s. 10, that rent reserved by a lease and the benefit of every covenant having reference to the subject-matter thereof and every condition of re-entry or other condition " shall be annexed and shall go with the reversionary estate in the land or in any part thereof, notwithstanding severance of that reversionary inte- rest." And by s. 11, it is provided to the same effect as to the obligation of a covenant by a lessor with reference to the subject-matter of the lease. — Where tenants in common of land in undivided shares join in demising the entirety, the covenants made in terms with all the lessors run with the (q) See ante, p. 199. (r) II'M V. ]{imrl/, 3 T. R. 393 ; see JIuiioii v. Jiarclai/, 7 Bing'. 745. (.s) S/emtion V. Lamhard, i East, 57S ; Roberts v. iSnell, 1 JI. & G. 677 ; Swansea v. Thomas, L. K. 10 Q. B. D. 48; 62 L. J. Q. B. 340. (<) Tu-ynam v. Pickard, 2 B. & AW. 10.5. [ii) Co. Lit. 215 (t; 5 Co. 55 4, Iiiiii/lit's Case; Holroyd, J., Tici/- iiam V. Pickard, supra. COVENANTS RUNNING WITH lAND. 1057 entire reversion and not with the separate shares; and all Chap. in. persons interested in the reversion are necessary parties in an action for a breach («). If an undivided share in the rever- sion becomes merged in the possession, the covenants and conditions of the lease run with the residue of the reversion, and the damages are apportioned to the remaining interest therein {y) . The assignee of the term in part of the demised premises Severancs takes the benefit and the burden of the covenants running demise. with the land, so far as they relate to the part assigned : he is liable to that extent upon the covenant for rent (ss) ; and upon a covenant to repair («) ; and to the same extent he is entitled to sue the lessor or the assignee of the reversion for the breach of a covenant to find materials for the repair (5). An assignment of the term in the demised premises to tenants in common in undivided shares leaves the tenement and the rent and services entire in relation to the reversion (c) ; and each tenant being possessed of the whole may be sued separately upon covenants running with the land, as a cove- nant to repair ; subject formerly to a plea in abatement and now to the joinder of the co-tenants under an order of the Court {d). Where an undivided share became merged in the reversion, it was held that the liability on the covenant to repair was not apportionable, but the damages were assessed proportionately to the reversion which remained (e) . Where a lease was made to three persons in joint tenancy and the covenants were made by them jointly and severally, it was held that an assignee of two of the lessees was liable upon the covenant to repair for the whole amount of damages (/) . [x) Foley v. Addenbrooke, 4 Q. B. (*) Palmer v. Edwards, 1 Dougl. 197 ■ Thompson v. Hakewill, 19 C. -B. 187. N S. 713 ; 35 L- J- 0. P. 18. («) Per cur. Holloway v. Berkeley, '(«)' Bad'eley t. Yigurs, 4 E. & B. 5 B. & C. 10. , .„ „ „ 71-23 L J. Q. B. 377. { according to the same rules as at common law. But upon principles of equity a purchaser of land with notice of a covenant restricting the use of the land for the benefit of 601 ; TFalker v. Battm, 10 M. & W. 830 ; see ante, p. 1048. 249; logan v. Ball, 4 C. B. 598 ; (/) Esher, M. R., Nottingham see Fontifex v. Foord, L. R. 12 Q. B. Brick Co. v. Butler, L. R. 16 Q. B. D. D. 152 ; 53 L. J. Q. B. 321. 785 ; 55 L. J. Q. B. 280 ; Collins v. (d) See ante, p. 997 ; Clegg v. CastU, L. R. 36 C. D. 247 ; 67 L. J. Sands, L. R. 44 C. D. 503 ; 69 L. J. C. 76 ; see Sheppard v. Gilmore, 57 C. 477. L. J. C. 6. (e) Keates v. Zyon, L. R. 4 Ch. {g) Spicer v. Martin, L. R. 14 Ap. 218 ; 38 L. J. C. 367 ; Master v. Ca. 12 ; 68 L. J. C. 309 ; Mackenzie Eansard, L. R. 4 C. D. 718 ; 46 v. Childers, L. R. 43 C. D. 265 ; 59 L. J. C. 505 ; Renals v. Cowlishaw, L. J. C. 188. L. R. 11 0. D. 866; 48 L. J. C. COVENANTS RUNNING WITH LAND. 1061 others, though the burden of such covenant does not run Chap. in. with the land at common law, will be restrained from using the land in a manner inconsistent with the covenant ; upon the ground that it would be a fraud upon the parties entitled to the benefit of the covenant for the vendor to sell the land discharged of the restriction [h). — In such case "the question Purchaser is, not whether the covenant runs with the land, but whether of coto- a party shall be permitted to use the land in a manner incon- ^^^^' sistent with the contract entered into by. his vendor with notice of which he purchased ; " and " that the question does not depend upon whether the covenant mns with the land is evident from this, that if there was a mere agreement and no covenant, this Court would enforce it against a party pur- chasing with notice of it; for if an equity is attached to property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased" (>'). The principle applies to persons taking the land for any interest : as a tenant from year to year (k) ; or a mere occupier as tenant at will, or as cestui que trust, or by permission of the owner; who take possession with notice of the restrictive covenant [1) ; also to persons claiming to sell the land to satisfy a charge upon it(?H). But it does not apply to a purchaser of land under com- pulsory powers for public purposes (»). A restrictive covenant is therefore a valid objection to the Purchaser J ... without title, and entitles a purchaser who has contracted without notice, notice to rescind the contract (o). A purchaser who con- tracts subject to restrictive covenants, or with notice of such covenants, cannot have specific performance without indem- nifying the vendor by executing a conveyance with like (A) Talk T. Moxhaxj, 2 PhiU. 774 ; {I) Mander v. lalcke, (1891) 2 Ch. CoU V. Sinu, 5 D. M. & G. 1 ; 23 554. L. J C 258 ; Western v. McBermott, (m) Tendring Uuion v. Bowton, L. E. 2 Ch. 72 ; 36 L. J. C. 76 ; see (1891) 3 Ch. 265 ; 61 L. J. G. 82. ante, p. 1039. («) .S««2/ v. Be Crespigmj, L. E. 4 (i) Cottenham, L. C, Tulk v. Q. B. 180 ; 38 L. J. Q. B. 98 ; anU, Moxhay, supra. p. 612. (k) Wilson T. Sart, L. E. 1 Ch. (o) Se Cox and New, (1891) 2 Ch. 463 ; 35 L. J. C. 569. 109 ; Bishop v. Tayhr, 60 L. J. Q. B. 556 ; and see ante, p. 720, 1062 ASSIGNMENT OF CONTRACTS. Pabt VI. covenants {p) ; and though he had no notice at the time of contracting, he must execute a conveyance with like cove- nants, unless he rescinds the contract altogether {q). A purchaser who has taken a conveyance of the land without notice of restrictive covenants is not affected by them ; and he can convey a good title to a purchaser with notice (r). A purchaser with notice is not liable to his vendor upon the covenants without an express stipulation in the conveyance ; the liability by reason of notice extending only to the covenantees and their successors who take the benefit of the covenants is). And the liability by reason of notice con- tinues only during his possession of the land to which the covenants relate, and ceases upon a transfer of the possession to another {t). Restrictive Upon the above principle a purchaser of land may become bound by the restrictive covenants of a former owner : that the land shall not be built over {u) ; or that no building shall be erected beyond a certain line of frontage {x) ; or no building except houses of a certain kind {y) ; and in such cases the Court will not only grant an injunction against building, but will grant a mandatory injunction to pull down buildings which infringe the covenant (s). So a pur- chaser may become bound by a covenant against carrying on the sale of beer or spirituous liquors {a) ; or a covenant not to sell any beer, other than that bought of the lessor of the Afarma- premises (b) . — But a purchaser of land is affected bv notice tive cove- "■ j . Q. B. D. 1 10 ; 51 L. J. Q. B. 453 ; 484 ; 52 L. J. C. 224 ; see Jones v. seeBradshawY.Zatieashire^Torlcshire Simes, L. E. 43 C. D. 607; 69 L. J. My., L. R. 10 C. P. 189 ; 44 L. J. C. 351. C. P. 148 ; post, p. 1077. 3z2 107G ASSIGNMENT OF CONTRACTS. Debts im- plied from wrongs. Paet VI. delivered to the executors in case of the death of the parties, the plaintiff having died pending the arbitration, the clause was held void, and the executor could not take up an award made after the death («). The common law rule that the wrong dies with the person does not apply to the implied debt arising from pecuniary benefit derived from the wrongdoer. Where goods have been wrongfully taken, or timber or minerals or other products of real estate wrongfully severed, and converted by the wrongdoer to his own use, the implied debt which arises for the value or proceeds of sale of the property survives to or against the executor, independently of the above rule and of the above statute, and is therefore free from the limitations imposed {y) . But such debts are implied only in respect of some definite property or profit wrongfully taken and appro- priated, in cases where the amount of debt is capable of being ascertained and followed against the estate of a deceased wrongdoer. No such debt is implied in respect of a claim to unliquidated damages, which can be assessed and recovered only in an action for the wrong (s). — And generally in cases and duties, of implied Contract or of obligation or duty arising from the relation of the parties, though the breach may be treated as a substantive wrong to the person or property, the rule that the action dies with the person does not apply to the breach of contract, and the executor may sue or be sued in respect of the personal estate of the deceased ; as in cases of carriers, bailees, innkeepers, and the like, in which the action may be framed either in contract or in tort {a) . Where a passenger by a railway was injured by the negligence of the company's servants, and afterwards died in consequence, it was held that though damages for the personal injury were not recoverable, the executor was entitled to recover the pecuniary loss to the Implied contracts (x) Sotoka- V. Evans, L. E. 15 Q. B. D. 565 ; 54 L. J. Q. B. 421. ifj) See ante, pp. 73, 74 ; Hambhj v. Trott, 1 Cowp. 376 ; Pomll v. Recs, 7 A. &E. 426. [z) Phillips V. llomfray, L. K. 24 C. D. 439 ; 52 L. J. Q. B. 833 ; (1892) "W. N. 4. [a) Etiights v. Quarks, 2 B. & B. 102 ; Bradshaw v. Lane. ^' TorJcsh. Sy., L. R. 10 C. P. 189; 44 L. J. C. P. 148 ; per cur. Batthyany v. Walfoid, L. R. 36 C. D. 279; 56 L. J. C. 881. ASSIGNMENT AT DEATH. 1077 estate arising from medical expenses and inability to attend Chap, y . to business (i).— And by 9 & 10 Yiet. c. 93 (Lord Campbell's Act) an action is given to the executor or administrator upon the death of a person caused by a wrongful act or neglbct, for the benefit of certain relations of the deceased to the amount of damages resulting to them from the death (c). Executors and administrators take all the rights and Baisand liabilities on bills and notes, to which the deceased was a ''°'^'' party at the time of his death ; and they may sue or be sued in their representative character. " The right of action is transferred to them, but no promise is implied by law to pay them ; otherwise the statute of limitations would run from the death of the payee, not from the time of the note be- coming due" (d). If a bill is indorsed to executors as such, the proceeds of the bill will be assets of the testator ; and the executors may sue in their representative capacity (e). Where a bill was specially indorsed to a deceased person in payment of a debt, in ignorance of his death, it was held that the executor had an election to take it in payment, and might sue upon it as executor (/'). Where the holder of a bill dies intestate before the bill is due, the cause of action accrues from the appointment of an administrator, and not from the maturity of the bill, because there is no right of action unless the bill is due and a party is capable of suing (g). But the statute of limitations runs against an executor from the time the bill falls due, because his title dates from the death of the testator (A). — The executor or administrator may in- Indorse- dorse bills and notes of which the deceased was holder ; and executor. " it is immaterial whether they indorse as executors or not. If they indorse at all they are liable personally, and not as (i) Mradshaw t. Lane. ^ Yorlcsh. M. & W. 721. Ey., L. R. 10 C. P. 189; 44 L. J. (c) KingY. Thorn, 1 T. R. 487. C. P. 148; Fotlcr t. Metrop. My., 32 (/) Murray v. East Ind. Co., 5 B. L. T. 36. & Aid. 204. (c) Bullen & L. Prec. PI. 4th ed. {g) Murray v. East Ind. Co., supra. 418. {h) Ante, p. 1072; see Woolley y. (d) Parke, B., Timmis v, Elatt, 2 Clar/c, 5 B. & Aid. 745. 1078 ASSIGNMENT OF CONTRACTS. Paet VI. executors ; for their indorsement would not give an action against the effects of the testator " («)• So a promissory note in which the makers promised jointly and severally to pay on demand " as executors " was held to bind them personally to the holder (k). Where the holder of a note payable to order wrote an indorsement, but did not deliver the note, and after his death his executor delivered the note without further indorsement, it was held that there was no complete indorsement, and the transferee had no legal title {I). But where the holder assigned and delivered the note in his hfe- time without indorsement, the assignee was held entitled to have the indorsement of the administrator to invest his equit- , able right with the legal title (m). And where a testator has beqiieathed an unindorsed note by will, the executor must Banker's indorse it for the benefit of the legatee (n). — ^A banker's cheque. , . cheque, being an order upon the banker to pay which is re- voked by the death of the drawer, is not chargeable against the executor unless it was presented and dishonoured in the lifetime of the drawer ; but upon the death of the drawer it ceases to operate as payment of the debt or consideration for which it was given, and with which therefore the executor becomes chargeable (o) . ContinuiDg _^ guarantee is construed presumptively to be commensu- tees. rate with the matter guaranteed ; as the guarantee of a certain debt or of a person in the performance of an office or duty ; and therefore such guarantee is not revocable by the surety in his lifetime, nor is it determined by his death (p) . But in the event of insolvency of the principal debtor or default of the party guaranteed, the surety may give notice to the creditor with the effect of precluding him in equity from (j) BuUer, J., Kiitff v. T/iom, 1 T. 60 L. J. C. 851. R. 489. [o) Tate v. Silbert, 2 Ves. jun. 118 ; {k) Childs V. Monins, 2 B. & B. Beak v. BeaJc, L. E. 13 Eq. 489 ; 41 460 ; post, p. 1086. L. J. C. 470 ; see ante, pp. 1003, (0 BroimgcY. Lloyd, 1 Ex. 32. 1021. (m) Watkins s. Maule, 2 Jao. & {p) Gordon \. Calrn-t, i'Russ. 581; W. 237 ; see ante, p. 1019. Lh;/ds v. Harper, L. R. 16 C. D 290 • («) Re Robson, (1891) 2 Ch. 569 ; 50 L. J. C. 140 ' ASSIGNMENT AT DEATH. 1079 further dealings at the risk of the surety, or charging the Chap, y. surety with subsequent credits or defaults (q). A continuing guarantee of a current account at a bank, or of a current account of goods sold in a business, may be withdrawn at any time by notice, except as to past transactions ; unless a certain time of notice is expressly stipulated (r). But such a guarantee is not determined by the mere fact of the death of the surety (s) . It becomes the duty of the executor to give notice of withdrawal, and he is responsible to the estate for neglecting to do so ; and the creditor cannot charge the executor with advances made to the principal after having notice of the death, however obtained, because it would be a breach of trust in the executor to charge the estate (t) . In a continuing guarantee a stipulation for a certain time of notice to determine the guarantee does not apply to notice given of the death of the surety {u) . The death of one of co-sureties does not affect the liability of the others, who continue chargeable with advances made after notice of the death (x). An executor is entitled to the benefit of the executory con- Executory tracts of the deceased for the supply of goods or performance deceased." of work which do not involve the personal skill and ability of the deceased, and he may as executor complete the con- tracts and recover the price for the benefit of the estate ; as in the case of an ordinary building contract undertaken by the deceased ; " if a party contract for himself and his execu- tors to build a house, and die, the executors must go on, or they would be liable for damages for not completing the work ; if they go on they may recover as executors, and the money when recovered will be assets in their hands "(y). fol Per cur. Burqess v. Eve, L. R. 866 ; 42 L. J. 0. 502 ; see Re Sherry, 13 Eq 458 ; 41 L. J. C. 515. L. E. 25 C. D. 692 ; 63 L. J. C. 404. (r) b/br(?v. Zlavies, 12 C.B.N. S. {«) See CouUhart v. Clemenism, 748 • 31 L. J. C. P. 319 ; ante, p. 29 ; supra. CouUhart v. Clemenison, L. B. 5 Q. B. {x) Beckett v. Addyman, L. R. 9 D 42 49 L. J. Q. B. 204. Q. B. D. 783 ; 51 L. J. Q. B. 597 ; (s) Bradbury v. Morgan, 1 H. & C. Ashby v. Day, 54 L. J. C. 935. 249' 31 L J Ex 462. {y) Per cur. Marshall^. Broadhurst, (t) Rarris v. Faweett, L. R. 8 Ch. 1 C. & J. 403. 1080 ASSIGNMENT OF CONTRACTS. Paet VI. Contracts oi sale of land. Effect of conversion of the property by sale. Where a coat was ordered of a tailor who began to make it, but died before completion, his administrator, having completed and delivered it, may claim the price in his representative cha- racter (2). On the other hand, where a person has contracted to accept the dehvery of goods at a certain time, and dies before delivery, his executor wiU be liable for not accepting delivery in pursuance of the contract (re) . Under a contract of sale of land the executor of a deceased party is entitled to sue for a breach of the contract in respect of damage accrued to the personal estate ; and to recover the expense in and about making or investigating the title and preparing to complete the sale, and the loss of interest upon the deposit or purchase money, but no damages in respect of the value of the property sold or loss of proiit(6). So an action against a solicitor for negligence in investigating the title to land under a contract of sale may be brought by the administrator of the deceased purchaser, in respect of loss to the personal estate (c). — In such cases the heir cannot sue or be sued for damages under the contract; but in equity a con- tract of sale of land is treated as a conversion according to its terms of the land into money on the part of the vendor, and of the sum of purchase money into land upon the part of the purchaser ; provided the contract is such that the Court would decree specific performance against the parties respectively {d). Hence the heir or devisee of the purchaser becomes presumptively entitled to the benefit of the contract, and may claim specific performance against the vendor and the personal representative of the purchaser (e) . And the executor or administrator of the vendor is presumptively (z) Werner v. Humphv G. 853. 2 M. & (a) Wenlworth v. Coclc, 10 A. & E. 42; see Sihonl v. Kirkman, 1 M. & W. 418. {b) Orme v. BroughtoHy 10 Bing-. 533. See ante, p. 924. (c) Knights v. Qiiarles, 2 B. & B. 102. (d) Fletcher v. Ashburper, 1 Bro. C.C. 497;1"W. &T.L. C.6thed.968; Jessel, M. E., lysaght v. Edicards, L. E. 2 C. D. 506 ; 45 L. J. C. 654; see Se Thomas, L. E. 34 C. D. 166 ; 66 L. J. C. 9 ; see ante, p. 988. (c) Eldon, L. C, 7 Ves. 274, Setm V. Stndc ; 10 Ves. 614, Browne v. Moncl- ; Grant, M. E., 7 Ves. 344, BKckmastn- v. Marrop ; Gai-nett T. Acton, 28 Bear. 333 ; Budson v. Cook, L. E. 13 Eq. 417 ; 41 L. J. C. 306. ASSIGNMENT AT DEATH. 108 L entitled to the purchase money as part of the personal estate, Chap. V. and may claim specific performance against the purchaser and the heir or devisee of the vendor (/). And now, by the Conveyancing Act, 1881, s. 4, the personal representative of the vendor has power to convey the land in any manner proper for giving efFect to the contract. — Upon the same principles where a person contracted for the building of a house upon his freehold land and died before it was com- pleted, his heir was held entitled to have the house completed and paid for out of the personal estate ; it was said that the executor had no right to settle with the building contractor for the benefit of the personal estate instead of paying him the contract price for completion of the building {g) . The rights upon covenants running vsdth land, as already Covenants explained, pass with the land to the heir or devisee of the with land, deceased ovimer, if the estate is freehold ; and to the executor, if the estate is a chattel interest. The rights and liabilities upon such covenants in leases pass with the demised premises to the executor or legatee, as assignee of the lease ; and with the reversion to the heir or devisee, or, if the reversion be a chattel interest, to the executor or legatee of the reversioner, as assignee of the reversion. But though the assignee of the term or of the reversion is liable so long as he continues assignee, yet the liability of the original lessor or lessee as being the contracting party is not discharged by his death, and his executor, to the extent of assets, remains liable, concurrently with the assignee for the time being (Ji). — Accordingly the covenants for title in a conveyance in fee pass to the heir or devisee ; who, and not the executor of the covenantee, may sue for breaches committed after the death of the latter. For breaches committed in the lifetime of the deceased covenantee the executor may sue for the benefit of the personal estate ; but unless damage accrued to the personal (/) Farrar v. Winterton, 5 Beav. 1 ; 98 ; 38 L. J. C. 85 ; see Eolt v. EoU, BoMelY. Pugh, 33 Beav. 489 ; Ly- 2 Vern. 322 ; Mook v. Warth, 1 Ves. saght V. Edwards, supra. sen. 461. {g) Cooper v. Jarman, L. E. 3 Eq. (h) See ante, p. 1058. 1082 ASSIGNMENT OF CONTRACTS. PaktVI. estate, the executor has no right of action («'). And if the breach continues after the death, as in the case of a continuing defect of title, the heir or devisee may sue for the damages accruing to him in his own right (Jt) . Where a covenant by the vendor with the purchaser of land, to make further assurance upon request, was broken in the lifetime of the purchaser, in consequence of which after the death of the purchaser his heir was evicted ; it was .held that the heir might sue for the breach of covenant, because the damage accrued to him and not to the ancestor (/). On the other hand, where the ancestor was evicted in his lifetime so that the whole damage accrued to him, the executor was entitled to recover upon the cove- nants for title, and not the heir to whom nothing descended {in) . Under a lease made by a tenant for life, which expired at his death leaving no reversion, it was held that his executor was entitled to sue upon the covenant to repair, and without alleging or proving special damage to the testator's estate («). Eent. — The executor of a lessee is liable as such to the extent of assets for the rent reserved and upon the covenant to pay rent, both rent accrued due at the death and rent accruing subsequently. He may be also charged in his own right as assignee of the term for rent accrued due subsequently to the death, because the profits of the land to the amount of the rent are reserved to the landlord ; but he may discharge his personal liability by pleading that he is assignee as executor only, and that there are no profits or not sufiicient profits to meet the rent, and that he has fully administered the other assets (o) . Contracts. Contracts involving personal relations or qualities are for the^pTSon. the most part determined by death : as a contract to build a (s) Kingdon v. NoUle, 1 M. & S. (m) Lucy v. Levington, 2 Lev 26 • 355. 1 Ventr. 176. (k) See ante, p. 1059 ; Kingdon v. (m) Rieketts v. JTeaver, 12 M. & NottU, supra; see Spoor v. Green, "W. 718. L. R. 9 Ex. 99 ; 43 L. J. Ex. 57. (o) See ante, p. 1053 ; Me Bowes [1) King v. Jones, 6 Taunt. 418. L. R. 37 C. D. 128 ; 57 L. J C 455 ASSIGNMENT AT DEATH. 1083 ligMliouse whicli is a matter of skill and science ( p) ; and a Chap, y. contract by a pianoforte-maker to deliver an instrument of his own manufacture (q). — Promises to marry are necessarily Contract of ^ ' , '' , . "^ marriage. terminated by the death of either of the contracting parties ; and though the promise was broken in the lifetime of the parties the right of action for the personal injury does not survive, and the executor can sue only for any damage that may have accrued to the personal estate (r). — Contracts Contracts . of agency of agency are determined by death ; and so generally are or service, contracts of service by the death of the master or of the servant (.s) . The ordinary contract of apprenticeship is dis- charged by death; the executor of the master is not bound to teach, nor the apprentice to serve (t) ; nor is the premium apportionable (;;). But if the contract is expressly extended to the service of the executor or assigns of the master during the term specified, the apprentice is bound according to the terms {x). Upon the principle that the contract of service is determined by death, it is held that though a master has a right of action for the loss of services caused by an injury to his servant, yet if the injury causes death he can claim for no loss of service after the death (y). And a farm bailiff who contracted to serve at weekly wages with residence, subject to six months' notice or payment of six months' wages, upon the death of the employer was held to have no claim against the administrator for dismissal without notice or payment beyond the wages then due (2) . Under a contract to com- plete certain work for a price to be paid in instalments, the determination of the contract by the death of the contractor before the completion of the work was held not to affect the {p) Patteson, J., Wentworth \. Ex. 8tli ed. 1014. Cock, 10 A. & E. 45. (m) Whincup v. Sughes, L. R. 6 (y) Sihoni T. Kirkman, 1 M. & "W. C. P. 78 ; 40 L. J. C. P. 104. See 41g_ ante, p. 92. ir) Chamberlain v. WilKamsm, 2 (x) Jackson v. Bridge, 12 Mod. M & S 408 ■ Finlay v. Chirneg, 650 ; Cooper v. Simmons, 7 H. & N. L.' R. 20 Q. B. D. 494; 57 L. J. 707; 31 L. J. M. 138. Q B. 247 ; see ante, p. 606. (. 233 ; L. 4 A 1090 ASSIGNMENT OF CONTRACTS. Pakt VI. statute abolishing the priority of specialty over simple con- ' tract debts, 32 & 33 Yict. o. 46 ; except that in the case of an insolvent estate, the specialty and simple contract debts being charged rateably, the fund apportioned to the latter, against ■which only an executor can retain for a simple contract debt, is thereby increased (/). 56 L. J. C. 552 ; Se Williams, L. E. Coxwell, L. B. 23 0. D. 764 ; 52 L. J. 36 C. D. 573 ; 67 L. J. C. 264. C. 975; Se Jones, li.U. 31 CD. 440; (/) See ante, p. 125 ; mison v. 55 L. J. C. 360. 1091 Chapter VI. ASSIGNMENT IN BANKEUPTCT. PAGE Assignment m bankruptcy — property vesting in trustee— protected transactions 1091, Eights of action of bankrupt — claims for personal in- juries — actions commenced before bankruptcy 1093 Executory contracts of bankrupt— sale of goods — sale of land— contracts iavolving personal skill or conduct. . , . 1095 Disclaimer of contracts by trustee — disclaimer of lease . . 1097 Goods in reputed ownership of bankrupt — things in action — trade debts — reputation of ownership 1100 Property held by bankrupt in trust — money held by bank- rupt agent — goods in possession of agent 1103 After- acquii-ed contracts of bankrupt — personal earnings — employment of bankrupt by trustee— second bank- ruptcy 1104 An adjudication of bankruptcy operates as an assignment in Assign- law of all the property of a debtor for division amongst his ^a'S^-™ creditors. The proceedings are now regulated by the Bank- ruptcy. ruptcy Act, 1883. By s. 5, upon a petition in bankruptcy the Court may make a " receiving order " for the protection of the estate. And by s. 9, on the making of such order an oiBcial receiver shall be thereby constituted receiver of the property of the debtor ; with the ordinary powers of a re- ceiver of the Court (a). By s. 20, in default of the cre- ditors accepting a composition or arrangement with the debtor, the Court shall adjudge the debtor bankrupt ; " and thereupon the property of the bankrupt shall become divisible among his creditors and shall vest in a trustee." By s. 54 (1), " until a trustee is appointed the ofEoial receiver shall be the trustee for the purposes of this Act ; " and (2) " on the appoint- ment of a trustee the property shall forthwith pass to and («) See ante, p. 884; and see s. 70. 4a2 1092 ASSIGNMENT OF CONTKACTS. Paet VI. Eeoeiving order. Propei'ty Yestmg in trustee. Protected trans- actions. vest in the trustee appointed." (3) The property shall pass and shall vest in the trustee for the time being, without any conveyance, assignment or transfer whatever. — The receiving order has not the effect of an adjudication of bankruptcy in divesting the property of the debtor ; who must sue in his own name to recover the assets, though he must hand over the proceeds of the action to the receiver {h) . But upon the adjudication the official receiver becomes invested with the fuU powers of trustee over the property, including the power to sell (c). By s. 44, " The property of the bankrupt divisible among his creditors, and in this Act referred to as the property of the bankrupt, shall not comprise : (1) property held by the bankrupt on trust for any other person ; (2) the tools of his trade and the necessary wearing apparel and bedding of him- self, his wife and children, to a value not exceeding twenty pounds in the whole." But it shall comprise " all such pro- perty as may belong to or be vested in the bankrupt at the commencement of the bankruptcy or may be acquired by or devolve on him before his discharge." The commencement of the bankruptcy is defined by s. 43, as having relation back to " the time of the act of bankruptcy being committed on which a receiving order is made ; or if the bankrupt is proved to have committed more acts of bankruptcy than one, the time of the first of the acts of bankruptcy proved to have been committed within three months next preceding the date of the presentation of the bankruptcy petition." S.' 49 protects from the operation of the Act in vesting the property of the bankrupt, any payment, delivery, conveyance, assignment, contract, dealing or transaction, for valuable con- sideration, which takes place before the date of the receiving order, and in which the party, other than the debtor, has not at the time of the transaction notice of any available act of bankruptcy {d) . Eights of property which are vested by (i) Bhodes v. Dawson, L. E. 16 Q. B. D. 548 ; 65 L. J. Q. B. 134 ; see Re Sartoris, (1892) 1 C. D. 11 ; 61 L. J. C. 1. (c) Turquand v. Bd. of Trade, L. E. 11 Ap. Ca. 286 ; 65 L. J. Q. B. 417. (d) See Hood t. Xeicbii. L. E. 21 C. D. 605; 52 L. J. C. 204. ASSIGNMENT IN BANKRUPTCY. 1093 contract before any act of bankruptcy, as a security upon Chap, yi. goods or an irrevocable licence to seize goods, are protected independently of the above section ; though not realized until after an act of bankruptcy {e) . — Notice of an intention to f°^gf °* commit an act of bankruptcy, as the intention of presenting a tank- liquidation petition, is not notice of such act of bankruptcy within the section ; and a transaction effected without notice of the presentment of the petition is protected (/) . Notice that a petition in bankruptcy has been iiled is notice of the act of bankruptcy alleged in the petition {g) . Transactions taking place after the date of the receiving order, though without notice of it, are in general not protected : as a payment to the bankrupt of the purchase money of land sold by him before bankruptcy (/*) ; or a payment to the bankrupt of money received by an agent of the bankrupt before the bank- ruptcy (/). Payment of a debt to the bankrupt by a post- dated cheque was held to be protected, though the drawer had notice of an act of bankruptcy before the cheque became due and did not stop it {k) . The property of the debtor vesting in the trustee comprises RigMs of rights of action for debts or money payable, and for damages iDanirupt. for breaches of contract, and for injuries to his property : as a right of action for not delivering building materials to execute a building contract (/) ; for wrongfully depriving the debtor of the use of a machine in his business (/«) ; for not indemnifying the debtor, as underlessee, against a distress upon his goods for the rent of his lessor {n) ; for the negli- gence of a solicitor in allowing property to be taken in (e) Krehl v. Central Gas Co., L. R. [h] Jlx p. Rabbidge, L. R. 8 0. D. 5 Ex 289; 39 L. J. Ex. 197; Re 367; 48 L. J. B. 15. Waugh, L. E. 4 C. D. 524 ; 46 L. J. (i) McEntire v. Fatter, L. B. 22 B 26; 'see Ex p. Atlicatcr, L. E. 5 Q. B. D. 438. C D 27- 46 L. J. B. 41; Ex p. {h) Exp. Richdale, L. E. 19 C. D. Fame L 'e 11 C. D. 539 ; Ex p. 409 ; 51 L. J. C. 462 ; ante, p. 773. Barter, L. K. 26 C. D. 510 ; 53 (I) Wright v. Fairfield, 2 B. & Ad. L. J. 6. 802. 727. I f) Re WriQht, L. E. 3 C. D. 70 ; (m) Stanton v. Collier, 3 E. & B. 45 L. J. B. 130. 274 ; 23 L. J. Q. B. 116. (17) Lucas Y. Flicker, L. E. 6 Q. B. («) Sancock v. Ca^gn, 8 Bmg. 358, D. 84 ; 60 L. J. Q. B. 190. 1094 ASSIGNMENT OF CONTRACTS. Paet VI. Personal injuries. execution (o) ; for a wrongful dismissal of the debtor from his employment {p). Rights of action of the above kind, in the words of the Act, " shall be deemed to have been duly assigned to the trustee ;" and they pass to the trustee without inter- ference on his part (q). The trustee may sue in his own name on behalf of the creditors, and recover the same amount of damages as the debtor himself would have recovered (r) ; or he may compromise the action for an amount less than is claimed (s) . And he may sell and assign the same right for the benefit of the creditors, without infringing the law against maintenance and champerty (t). Eights of action for injuries to the person of the debtor do not pass to the trustee : as " a right of action for an assault and battery, or for slander, or for the seduction of a child or servant ; and the same may be said of some personal injuries arising out of breaches of contract, such as contracts to cure or to marry ; and if, in the cases last supposed, a consequential damage to the personal estate follows from the injury to the person, that may be so dependent upon and inseparable from the personal injury which is the primary cause of action, that no right to maintain a separate action in respect of such consequential damage will pass to the assignees of a bank- rupt" (u). Accordingly a right of action for the negligence of a solicitor in allowing his client to be detained in execu- tion, and for the trouble and expense of obtaiaing his release, was held not to pass to the assignee in bankruptcy ; as being a personal wrong notwithstanding the pecuniary loss (^). But if the cause of action primarily aileots the estate of the bankrupt it passes to the trustee, though special damage may also accrue of a personal kind which the trustee would not (o) Wetherell v. Jidius, 10 C. B. 267. {p) Beckham v. Brake, 2 H. L. C. 67a ; Emden v. Carte, L. E. 17 0. D. 768; 51 L. J. C. 41. (q) Sect. 60, (5); see Stmiton v. Collier, supra. ()■) Ashdown v. Ingamclls, L. E. 6 Ex. D. 280; 60 L. J. Ex. 109. (») Lecm'mg v. Murray, L. K. 13 C. D. 123; 48 L. J. C. 737. (0 See ante, p. 631, n. («). (h) Per cur. Brake v. Beckham, 11 M. & W. 319 ; Brewer y. Lew, 11 M. & W. 625 ; Rogers v. Spence, 13 M. & W. 571 ; 12 CI. & P. 700; Sx p. Vine, L. E. 8 C. D. 364 ; 47 L. J. B. 116. (») V'etherell v. Julius, 10 C. B. 267. ASSIGNMENT IN BANKRUPTCY. 1095 he entitled to claim ; as a right of action against a solicitor Chap. vi. for fraudulently selling the property of his client at an in- adequate price, with the special consequence to the client of becoming bankrupt (y). An action commenced before bankruptcy does not become Actions abated by reason of the bankruptcy, " if the cause of action tefore continue." And if the continuing cause of action becomes ruptcy. vested in the trustee, an order may be obtained that the pro- ceedings shall be carried on by the trustee as plaintiff ; and if he refuses to take such proceedings the action may be stayed (z). The bankrupt during the bankruptcy cannot continue or maintain any action or proceeding in respect of any matter which has become vested in the trustee (a). The trustee by refusing to continue the action commenced by the bankrupt is not barred from bringing an action in his own right as trustee for the same cause (6). But the trustee having refused to continue the action, which was thereupon stayed, the bankrupt after his discharge and having taken an assignment of the assets from the trustee, was held to be barred from removing the stay of proceedings and continuing the action (c). The effect of bankruptcy is " to vest in the assignees every Executory beneficial matter belonging to the bankrupt's estate, and, of bank-^ amongst the rest, the right of enforcing unexecuted contracts ™P'- by which benefit may accrue to that estate, and such as may be performed on the part of the bankrupt by the assignees : such, in short, as would pass as part of his personal estate to his executors if he had died, which would not include that description of contract where the personal skill or conduct of (y) Stanton y. Collier, supra; Morgan 1 Q. B. T>. 666 ; 45 L. J. Q. B. 576. V. Stetle, L. E. 7 Q. B. 611 ; 41 L. J. {a) Motion v. Moojm, L. R. 14 Eq. Q. B. 260 ; see Hodgson v. Sidney, L. 202 ; 41 L. J. C. 596 ; Ex p. Carter, E. 1 Ex. 313 ; 35 L. J. Ex. 182. L. E. 2 C. D. 806 ; 45 E. J. C. 145 ; [z) Order XVII. rr. 1, 4 ; Jackson see Vale v. Oppert, L. E. 5 C. D. 969. V. North E. Eg., L. E. 5 C. D. 844 ; (4) Bennett v. Gamjee, L. E. 2 Ex. 46 L. J. C. 723 ; Eldridge v. Surgess, D. 11 ; 46 L. J. Ex. 204. L. E. 7 C. D. 411 ; 47 L. J. C. 342 ; (c) Selig t. Lion, (1891) 1 Q. B. Warder v. Saunders, L. E. 10 Q. B. 513 ; 60 L. J. Q. B. 403. D. 114; see Foster v. Gamjee, L. E. 1096 ASSIGNMENT OF CONTRACTS. Paet TI. the bankrupt would form a material part of tlie considera- tion." The trustee in bankruptcy, as assignee of the contract, by performing all the conditions of such contracts in the place of the bankrupt becomes entitled to payment or performance, or damages for non-performance, for the benefit of the creditors {(I) ; as a contract for the sale and delivery of goods to the bankrupt, which the trustee may elect to perform by paying the price and accepting delivery, as being beneficial Sale of to the creditors (e). But if the sale is for delivery upon ^° ' credit the bankruptcy or insolvency of the buyer has the effect, without rescinding the sale, of justifying the seller in refusing any delivery until payment of the price (/). So in the case of specific goods sold to the bankrupt on credit, though the right of property vests in the trustee before delivery, and the goods are at his risk, yet he cannot claim the possession without paying the price (g). And if the seller has delivered the goods to a carrier on behalf of the buyer, he retains the right to stop them in transitu and to recover the possession at any time before they have been finally delivered into the possession of the buyer or of his agent to hold them (/?). In the case of the buyer mortgaging or re-selling the goods during the transit, the unpaid seller may still claim the right of stoppage as against any surplus value or unpaid price accruing to the insolvent buyer (i). — Sale of Upon the same principle where the bankrupt has contracted to purchase land, the trustee may complete the contract for the benefit of the creditors ; and where the bankrupt has contracted to sell land, the trustee takes the land under the bankruptcy subject to the equitable title of the purchaser to {d) Parke, B., Gibson v. Carrtithers, & C. 948 ; Miles v. Gorton, 2 C. feM. 8 M. & W. 333 ; per cur. Boorman v. 604 ; Gricc \. Richardson, L. E. 3 Nash, 9 B. & C. 152 ; see Kx p. Ton- Ap. Ca. 319. dour, L. R. 5 Eq. 160 ; 37 L. J. Eq. (h) Exp. Rosevear Clay Co., L. E. 121. 11 CD. 560; 4SL.J. B. 100; Bethell [e) Gibson v. Carnilhcrs, supra; v. Ctoi-io, L. E. 20 Q. B. D. 615 ; 57 Ex p. Salliday, 2 D. J. & S. 312 ; L. J. Q. B. 302; BHndkxj t. Cil- see Lawrence v. Knowles, 6 Bing. N. qwyn Co., 65 L. J. Q. B. 67 ; Lyons C. 399. V. Hoffmms, L. R. 15 Ap. Ca. 391. (/) Ex p. Chalmers, L. E. 8 Ch. ((') Bellamy v. Davey, (1891) 3 Ch. 289; 42 L. J. B. 37. 540; 60 L. J. C. 778; see ante, {r/) I'cr cur, Ithxum v. Sanders, 4B. p. 1029. ASSIGNMENT IN BANKEUPTCY. 1097 have a conveyance upon payment of the purchase money to Chap. vi. the trustee {k). So where the bankrupt has contracted for a lease the trustee may sell the lease for the benefit of the estate ; and the purchaser is entitled to have the lease, though the lessor would not be compelled to grant it to the bankrupt or insolvent lessee (/). And a covenant or condition in the lease or agreement against assignment without licence does not apply to assignment by bankruptcy or by other operation of law (m). Contracts in which the personal skiU or conduct of the Contracts bankrupt forms a material part of the consideration do not the^perfon. pass to the trustee: as a contract of partnership, which is dissolved by the bankruptcy of one of the partners ; a contract between an author and a publisher for the publication of a literary work, involving on both sides a confidence in the personal qualities of the parties (w) ; a contract for work of any kind requiring personal acts and qualifications on the part of the contractor ; but if the work is completed by the bankrupt on behalf of the estate, or if completed otherwise by the trustee and accepted by the employer, the trustee becomes entitled to recover the price (o). Under a contract for building a ship it was held that the trustee in bankruptcy of the builder had the option of completing the contract, notwithstanding a clause in the contract that upon bankruptcy the buyer might complete with the materials provided by the builder; because upon the bankruptcy the materials vested in the trustee {p). The contracts of a bankrupt vest in the trustee upon Disclaimer adjudication, without any assignment or act of acceptance (g). ty'^trusSe.^ Nor is it required that the trustee should give notice to the (k) JSxp. EabUdge, L. R. 8 0. D. 8 M. & W. 333, 343. 367 ■ 48 L. J. B. 15. (o) Whitmore v. Gilmour, 12 M. & (l) Brooke v. Sewitt, 3 Ves. 255 ; W. 810 ; Knight v. Burgess, 33 L. J. CrosUe v. Toohe, 1 M. & K. 431 ; C. 727. Morgan v. Rhodes, 1 M. & K. 435. (p) Ex p. Barter, L. E.. 26 C. D. (m) Mansfield, C. J., Wadham v. 510 ; 53 L. J. C. 802. Marlowe, 8 East, 317; see Doe v. [q) Act, 1883, ss. 50(5), 54; see Ca>-to-, 8T.R. 57 ; andseeawfe, p. 1046. Titterton t. Cooper, L. R. 9 Q. B. D. («) Per cur. Gibson v. Garruthers, 473 ; 61 L. J. Q. B. 472. 1098 ASSIGNMENT OV CONTRACTS. f ABT Yi. other contracting party that he adopts the contract, otherwise than by offering performance of the conditions according to the terms (r). But the trustee may disclaim contracts and other property of the bankrupt in manner provided in the Act. By s. 55 (1), " Where any part of the property of the bankrupt consists of land of any tenure burdened with onerous covenants, of shares or stock in companies, of un- profitable contracts, or of any other property that is unsale- able by reason of its binding the possessor thereof to the performance of any onerous act or to the payment of any sum of money, the trustee, notwithstanding that he has endeavoured to sell or has taken possession of the property, or exercised any act of ownership in relation thereto, may by writing signed by him, at any time within three months (altered to twelve months by the Bankruptcy Act, 1890, s. 13) after the first appointment of the trustee, disclaim the pro- perty." (2.) " The disclaimer shall operate to determine, as from the date of the disclaimer, the rights and liabilities of the bankrupt in respect of the property disclaimed ; and shall also discharge the trustee from all personal liability as from the date when the property vested in him ; but shall not, except so far as is necessary for the purpose of releasing the bankrupt and the trustee from liability, affect the rights and liabilities of any other person "(s). (4.) The trustee shall not be entitled to disclaim when an application in writing has been made by any person interested requiring him to decide whether he will disclaim or not, and he has for twenty-eight days after the application or for such extended period as may be allowed by the Court neglected to give notice whether he disclaims or not; "and in the case of a contract, if the trustee does not within such period disclaim the contract, he shall be deemed to have adopted it"(^). (5.) The Court may, on the application of any person entitled or subject to a contract made with the bankrupt, {)■) Gibson v. Carruthers, 8 M. & 242 ; 41 L. J. Ex. 103. W. 321. [t] See Bankruptcy Act, 1869, (s) See Bankruptcy Act, 1869, s. 23 ; He Sneeznm, L. R 3 D s. 23 ; Smijth v. North, L. E. 7 Ex. 463 ; 45 L. J. B. 137 ASSIGNMENT IN BANKRUPTCY. 1099 make an order rescinding the contract on such terms as to Chap, vi. payment by or to either party of damages for the non- performance as to the Court may seem equitable, and the damages payable to any such person may be proved as a debt in the bankruptcy. (7.) "Any person injured by the operation of a disclaimer under this section shall be deemed to be a creditor of the bankrupt to the extent of the injury, and may accordingly prove the same as a debt under the bankruptcy." By s. 55 (3), "A bankrupt shall not be entitled to dis- Disclaimer claim a lease without the leave of the Court, and the Court may before or on granting such leave impose such terms as a condition" of granting leave, and make such orders with respect to fixtures, tenants' improvements, and other matters arising out of the tenancy as the Court thinks just"(rt). (6.) The Court may make an order for vesting disclaimed property in any person entitled thereto on such terms as the Court thinks just : provided that where the disclaimed pro- perty is of a leasehold nature a vesting order in favour of any person claiming under the bankrupt, whether as under- lessee or mortgagee by demise, must be made upon the terms of such person being subject to the same liabilities and obli- gations as the bankrupt was subject to under the lease {x). The trustee as statutory assignee of a lease, unless he dis- claims, is personally liable for the rent accruing due after his appointment, and for the covenants, to the same extent as an assignee by conveyance ; but the rent previously accrued due must be distrained for, or proved as a debt (y) . The trustee as assignee of the lease may get rid of future liability with- out disclaimer by assigning it to another, and even to an insolvent assignee (2). Disclaimer of a lease does not render (u) See Exp. Arnal, Ij. R. 24 C. D. (y) Wilson v. Wallani, L. E. 5 Ex. 26- 53 L. J. C. 134; Se Moser, D. 155 ; 49 L. J. Ex. 437 ; Titterion L. K. 13 Q. B. D. 738. v. Cooper, L. R. 9 Q. B. D. 473 ; 61 (x) See Re Finley, L. B. 21 Q. B. L. J. Q. B. 472 ; AUoinay v. Steere, iD. 475 ; 57 L. J. Q. B. 626 ; Re L. R. 10 Q. B. D. 22 ; 62 L. J. Q. Morgan, L. R. 22 Q. B. D. 592 ; 58 B. 38 ; see ante, p. 892. L J Q. B. 295 ; Re Smith, L. R. 25 {z)Sop/cinson v. Loverint/, L. R. 11 y,'. B. D. 536 ; 59 L. J. Q. B. 554 ; Q. B. D. 92 ; 52 L. J. Q. B. 391 ; and see Bankruptcy Act, 1890, 5. 13. ante, p. 1068. 1100 ASSIGNMENT OF CONTRACTS. Proof by lessor for loss by disclaimer. Part VI. the trustee a trespasser during a previous occupation; nor can any contract be implied to pay for such occupation (a). — Upon disclaimer of an agreement for a lease the lessor is entitled to prove for the difference between the agreed rent and the rent obtainable at the time of disclaimer [b) . Upon the disclaimer of a lease for twenty-one years, which was determinable by the lessee at end of seven years upon pay- ment of the rent and performance of the covenants, the lessor was held entitled to prove for the diminution of rent to the end of the seven years together with the value of the performance of the covenants (c). In the case of a lease to joint tenants with joint and several covenants to pay the rent, a disclaimer of the lease in the bankruptcy of the joint lessees entitles the lessor to prove against the separate estate of each lessee (rf) . Where a lease has been assigned, a dis- claimer in the bankruptcy of the assignee does not affect the rights and liabilities of the original parties (e) . Goods in By s. 44, the property of the bankrupt divisible amongst ownership his Creditors comprises, (amongst the property therein speci- rupt'^''" fis'i)) "^11 goods being at the commencement of the bank- ruptcy in the possession, order or disposition of the bankrupt in his trade or business, by the consent and permission of the true owner, imder such circumstances that he is the reputed owner thereof; provided that things in action, other than debts due or growing due to the bankrupt in the course of * his trade or business, shall not be deemed goods within the meaning of this section." — " Things in action " in the mean- ing of the proviso comprise a policy of life assurance, which had been mortgaged by the bankrupt (/) ; and shares in a company constituted under the Companies Clauses Act, of Things in action. {a) Lowrey v. Barker, L. R. 5 Ex. D. 170 ; 49 L. J. Ex. 433 ; Gabriel v. Blanlcaistein, L. E,. 13 Q. B. D. 684. (i) Ex p. Llynvi Coal Co., L. E. 7 Ch. 28 ; 41 L. J. B. 5 ; see sub-s. (7). if) Ex p. Blake, L. R. 11 C. D. 672. {(l) Ex p. Corhett, L. E. 14 C. D. 122; 49 L. J. B. 74. (c) Smytli T. North, L. R. 7 Ex. 242 ; 41 L. J. Ex. 103. (/) Ex p. Ibbetscn, L. R. 8 C. D. 519. ASSIGXMEKT IN BANKRUPTCY. 1101 ■which the certificate had been pledged {g) ; but shares in a Chap, yi. company after deposit of the certificate with an assignee or mortgagee cease to be in the order and disposition of the registered owner (/*). — "Debts due or growing due to the Trade bankrupt in his trade or business" are expressly excepted from the proviso (*) ; therefore if the bankrupt has assigned such debts and the assignee has given no notice of the assignment to the debtors before the bankruptcy, they remain in the order or disposition of the bankrupt at the time of the bankruptcy and vest in the trustee by force of the statute (A-) ; but if such notice is given before the bank- ruptcy, they cease to be in the order or disposition of the bankrupt (/). "Things in action" within the proviso are exempted from the effect of reputed ownership ; and the trustee in bankruptcy takes only such interest in them as the bankrupt has at the time of the bankruptcy, and therefore cannot gain priority over a prior assignee or incumbrancer by giving notice to the debtor (m). But it seems to be held necessary for the trustee to give notice of his claim in order to maintain priority over subsequent assignments of the bankrupt to persons not having notice of the bankruptcy («). — The possession, order, or disposition of the bankrupt must Reputation be under circumstances which create a reputed ownership ghip!^'^'^'^' as a matter of fact(o). No such reputation arises as to goods in the possession of a recognized factor or agent for sale or purchase {p) ; or as to a ship in a shipbuilder's yard (q) ; or [g) Colonial Bk. v. Whinnei/, L. E. 34 C. D. 128 ; 56 L. J. 0. 85. H Ap. Ca. 426; see Mx p. Barry, («) Falmer^. Locke, 'L.'R.liO.D. L. K. 17 Eq. 113 ; 43 L. J. B. 18. 381 ; 51 L. J. C. 124 ; see SeSusstWa (h) Colonial Bk.Y.W/iinney, supra. Policy, L. K. 15 Eq. 26; Ex p. (i) See Ex p. Kemp, L. E. 9 Ch. Eabbidge, L. R. 8 C. D. 367 ; 48 383 ;-43 L. J. B. 50 ; Se Jenkinson, L. J. B. 15. L. K. 15 Q. B. D. 441 ; 54 L. J. (o) Ex p. Watkins, L. E. 8 Cli. Q B 601. 520 ; 42 L. J. B. 60 ; Ex p. Lovering, \l) See ante, p. 1005; Webb's L. K. 9 Ch. 621; 43 L.J. B. 50 ; Tolicy 36 L. J. C. 341; Cooke v. Ex p. Brooks, Jj. 'R. 23 C. T). 261. Hemming, L. R. 3 C. P. 334; 37 (p) iJe Smitt, L. R. 10 C. D. 566 ; L J C P ITd ; Ex p. Calclwell, 48 L. J. B. 81 ; Hams v. Truman, L r! 13 Eq. 188. L. R. 9 Q. B. D. 264 ; 51 L. J. B. {I) Glover v. Moore, 39 L. J. G, 98 ; 338. See Be Irving, L. R. 7 C. D. 419; (q) Holderness v. Sankin, 29 L. J. 47 L. J. B. 38. C. 753 ; McBain v. Wallace, L. R. 6 (jttj Ex p. Ibietson, L. R. 8 C. D. Ap. Ca. 588. 619 ; Gorringe r. Irwell Works, L. R. 1102 ASSIGNMENT OF CONTRACTS. Pabt VI. as to goods which by recognized customs of trade are let on terms of hire or sale (r) ; or as to trust property, the title of trustee being a real ownership for the purpose of the trust, which is not affected by bankruptcy, though the trust may have been wrongfully created and may be voidable («). And upon the like principle goods obtained by a fraudulent contract of sale are not in reputed ownership of the buyer by consent of the seller as true owner ; there is a real ownership so long as the contract stands, though it is voidable by the seller as against the buyer and his trustee in bankruptcy (t). — The rule of bankruptcy affecting goods in possession of the bankrupt as reputed owner does not apply under the Judi- cature Act, 1875, s. 10, to the winding up of insolvent companies {u) . Property " Property held by the bankrupt on trust for any other trust. person " is not divisible amongst his creditors and does not vest in the trustee {x) . Therefore debts which have been assigned to another before bankruptcy (except trade debts which remain in the order or disposition of the bankrupt as reputed owner (y)) do not pass to the trustee (2). Upon this principle the mortgagee of a ship which remains in the possession of the mortgagor is entitled to the freight accruing due as against the trustee La bankruptcy of the mortgagor ; the mortgage operating as an assignment of the freight (a). Debts which are assigned in part only, or which are assigned as security only, and are chargeable at the time of adjudica- tion with a sum less than the debt, leaving in either case a surplus available for the creditors, pass to the trustee ; who (r) Orawcour v. Salter, L. R. 18 11 C. D. 7.55; 48 L. J. C. 537; C. D. 30; 51 L. J. 0. 495; Exp. Gorringe v. Irwell Works, L. E. 34 Turquand, L. K. 14 Q. B. D. 636 ; C. T>. 128 ; 56 L. J. C. 85. 54 L. J. Q. B. 242 ; Leman v. York- {x) Bank. Act, 1883, s. 44- ante shire Wagon Co., 50 L. J. C. 293 ; p. 1092. ' Re Blanchard, L. R. 8 C. D. 601 ; 47 ((/) See ante, p. 1101. L. J. B. 113 ; see Ex p. Brooks, supra. (z) Winch v. KeeJey, 1 T. R. 619 ; (s) Great Eastern Rij. v. Turner, Carpenter v. MarneU, 3 B cfe P 40 ■ L. R. 8 Ch. 149; 42 L. J. 0. 83. Ite Irving, L. R. 7 C. D. 419; 47 (t) Load v. Green, 15 M. & W. L. J. B. 38 ; see ante, p. 1007. 216; see ante, p. 327. (a) Susden v. Eope, L. R. 3 Ex (m) Se Crtimlin Viaduct Co., L. R. 269 ; 37 L. J. Ex. 137. ASSIGNMENT IN BANKRUPTCY. 1103 takes the debt, subject to accounting to the assignee for the Chap, yi. amount of his share or charge (J) . So where the claims arising upon a contract are severable and assignable separately, the trustee takes those only of which the bankrupt retains the beneficial interest : as in the case of a covenant to pay an annuity of which the bankrupt has assigned one or more of the annual payments; and in the case of a policy of insurance on goods with a stipulation for return of premium in certain events, the bankrupt having assigned the goods with the benefit of the insurance, it was held that the claim to return of premium only passed to the trustee (c). Property held by an agent for the purposes of his principal Money- is in general in the position of trust property ; but there is a banfaupt distinction as to money arising from the kind of agency : a ^^^^ ' clerk or servant employed to receive money is bound to retain it in specie and deliver it to his employer, whose pro- perty it is during the possession of the agent ; and there is no property in the agent which can vest in the trustee (d). But a solicitor, or a banker, or a commercial agent in general, who receives money in the ordinary com'se of business for a client or customer, is not bound to retain it and deliver it in specie, and is accountable for it only as a debt; which is provable in his bankruptcy, the money received becoming part of the assets which vest in the trustee (d). If a factor, having sold goods for his principal and received the price, becomes bankrupt, the principal can only prove for the money received as a debt, unless the money has been kept separate or can be followed and identified; if the factor having sold the goods becomes bankrupt before payment, and the price is paid to his trustee, the principal may recover the amount in full as money received to his use ; and so if the price was paid to the factor in bills falling due after the bankruptcy on which the trustee receives payment (e). 1138 INDEX. Lettek. con'espondence by, containing contract, 149. construction of correspondence, 184, 191. as memorandum within Statute of Frauds, 227, 232. Letter of Ceedit. contract by, to honour bills under, 12, 363. Licence. to enter or use land, not an interest within Statute of Frauds, 212, 215. may be proved by contract within the statute, 255. is revocable unless coupled with grant, 215. by parol, not to perform covenant, 692. to defer or alter performance, 691. Lien. for the price of goods sold, 247. effect of bill given for amount of, 768. for the purchase-money of land, 130, 965. interest chargeable under, 949, 956. of factor, 434. of mercantile agent under Factors Act, 435. of broker, 446. of auctioneer, 442. of solicitor, 78. of pawnbroker, 643. of innkeeper, 171. of shipowner for general average, 65. on ship for wages, repairs, &c., 66, 448. charges incurred in detaining goods under, 43. money obtained by unfounded or excessive claim of, 77. effect upon, of bill taken for the debt, 768. not affected by limitation of the debt, 851. limitation for recovery of, against land, 829. not affected by set-ofB, 851, 867. LlEE. See IlJSUEANOE. contracts conditional upon continuance of, 283, 606. LiaHTEEMAN. contract of, as carrier, 603. Limitation, Statutes oe. limitation of actions on simple contracts, 827. contracts under seal, and specialty debts, 828. charges on land by mortgage or otherwise, 829. judgment or lien, 829. rent or interest payable out of land, 830. debts by statute, calls on shares, 831. debt for penalties, 832. foreign law of limitation, 832. foreign debts and judgments, 832, 833. limitations of equitable rights and remedies, 833. trusts of property, 834. trusts to pay debts, 835. debts provable in bankruptcy, liquidation, or administration. 836, 850. ' claims against agent for account, 837. claims against banker, solicitor, partner, &c., 837. disabilities of plaintiff excepted from, 839. defendant beyond the seas, 839. when time of limitation begins to run, 841. judgment debts, 841. INDEX. 1139 Limitation, Statutes of — continued. "bonds and covenants, 842. ■bills and notes, 842. contracts giving credit, 843. guarantees and indemnities, 844. continuing breaches, 845. ■where cause of action or damage unknown, 845, 846. cause of action fraudulently concealed, 846. statute runs continuously, 847. death of debtor or of creditor, 847. computation of period of limitation, 848. commencement of action, and renewal of writ, 849. effect of, in bar of action, 849. option of pleading, 849. executor may pay barred debt, 850. legatee or next of kin must account for barred debt, 850. effect in bankruptcy and administration, 850. lien for barred debt, 851. may be pleaded to set-oflE or counter-claim, 871. renewal of simple contract debt by acknowledgment or promise, 852. construction and sufficiency of acknowledgment, 853. conditional renewal, 855. time of renewal, 855. action on renewed liability, 856. renewal by part payment or payment of interest, 857. transactions equivalent to payment, 959. appropriation of payment to barred debt, 792, 860. renewal of specialty debts, 860. effect against parties in different interests, 862. renewal of debt by joint debtor or partner, 863, 864. to or by agent, 865. wife, infant, or executor, 865, 866. LlQUTDATED DAMAGES AND PENALTY. distinction between, 933, 934. relief against penalty, 934. money bonds and bonds with special conditions, 935. damages restricted to penalty, 935. covenants and simple contracts with penalty, 936. specific performance of contract with, 937. contracts with option to pay damages, 937. construction of contracts as to damages or penalty, 938. larger sum payable in default of smaller, 939. fixed sum payable for a breach of uncertain value, 940. fixed sum for several breaches of various kinds, 941. deposit subject to forfeiture, 942. Llotd's. usages of, as to insurance, 167, 445, 784. See Insueanoe. register and shipping list, notice of contents, 317, 340. LoAtr. See Money Lent. LoEoiNas. contract for, within Statute of Frauds, 212. protection of lodger from distress of goods, 66. condition that premises are in habitable state, 304. Loss. of written instrument, 706. admission of secondary evidence, 706. of bUl or note, 706. of bill given in payment, 772. 4b2 1140 INDEX. Lobs — continued, pleading loss of instrument, 707. relief given upon indemnity, 707, 772. LUOGAOB. liability of carrier of passenger for, 605. liability of passenger for extra, or merchandise carried as, 44 . Lunatic. See Insanity. Maintenance of Suit. See Ohampeety. illegality of, 629. contract to supply costs, or evidence for litigation, 630. purchase of rights in litigation, 631. justified by interest in suit, 632. purchase by solicitor of interest in suit, 632. agreement by solicitor not to charge costs, 633. Maeket. sale in market overt, 76. contracts subject to usage of, 164, 167, 437. price of goods in, as measure of damages, 912, 914. Maeeiaoe. See Maeeied "Woman. effect of, on rights of wife on contracts before marriage, 1065. under Married Women's Property Act, 1066. -woman marrying her debtor, 1066. effect of, on liabilities of -wife before marriage, 1067. extent of liability of husband, 1068. man marrying his debtor, 1070. death of husband, or of wife, 1069. effect of death upon chose in action of wife, 1070. reduction into possession by husband, 1070. divorce and judicial separation, 490, 491. contracts respecting conjugal rights and separation, 492, 661. agreements concerning custody and religion of children, 663. agreements and conditions in restraint of, 658, 659. agreements for procuring, 659. as consideration of contract and of settlement, 545. contract in consideration of, within Statute of Frauds, 210, 259. settlements on, 211, 272, 546. . hability for representation made to induce, 211. Maeeiaoe, Pbomise op. mutual promises of, not within Statute of Frauds, 210, 545. requires corroborative evidence, 210. implied conditions of, 300, 606. by married man, 597. time for performance of, 723. breach of, by marrying another, 581, 749. notice of refusal to perform, 752. damages for breach of, 903. rescission of, 682. discharged by death, 606, 1083. effect of supervening incapacity, 606. Maeeied "Woman. capacity of, to contract, at law and in equity, 478, 479. under Married Women's Property Act, 479. contracts of, chargeable on separate property, 480. subject to restraint of anticipation, 481, 483. judgment against, and for costs, 482. attachment of debts of, 483. committal of, 484. INDEX. 1141 Maeeied Woman — continued. specific performance, and injunction against, 48i. property subject to general power of appointment of, 484. what contracts within the Act, 485. contracts implied in law, 485. . contracts induced by fraud of, 486. liability of, for fraud, 486. rights of, on contracts, 487. contracts made to husband and wife, 489. lease by husband and wife, 489. husband of, civilly dead, or alien, 489. trading by custom of London, 490. liability of, in bankruptcy, 490. effect of divorce, and judicial separation, 490, 491. contracts of, with husband, 491, 492. loan to husband, 492. concerning conjugal rights, 492, 661. contracts of, as agent for husband, 493. authority presumed from cohabitation, 493. revocation of authority, 494. authority from necessity of maintenance, 495. effect of adultery on authority of, 496. necessaries chargeable to husband, 497. money lent to wife, 498. ratification by husband of contracts of, 499. credit given to, exclusive of husband, 499. Mastee and Seevant. See Agent. services rendered gratuitously, or without request, 3, 41. indefinite hiring at weekly wages, 157, 686. yearly hiring, 218, 585. hiring of domestic servants, 48, 171, 585. contracts of service terminable by notice, 171, 585. wrongful dismissal, and compensation for, 47, 49, 171, 904. implied condition of health and capacity, 607, 1083. breach by master abandoning business, or refusing to employ, 750, 751. damages for loss of employment, 904. guarantee of honesty or capacity of servant, 347, 348. discharge of guarantee by alteration in service, 695. agency of servant to contract for master, 389, 395. specific performance of services, 968. liability for inducing servant to break his contract, 368. Mastee of Ship. engagement of, 447. terminable by reasonable notice, 585. authority of : — to sign bills of lading, 447. to contract for repairs and necessaries, 390, 448. to give bottomry bond, 449. to sell ship and cargo, 449. to forward, and take care of cargo, 450. Uen of, for wages and disbursements, 66, 448. Medioai, Attendant. qualification of, to recover charges for, 642. gift to, from patient, 78, 360. Meegee. of inferior in higher remedy, 804. conditions of, as to the debt, and as to the parties, 805, effect of intention in, 806. of simple contract debt in covenant, 800, 1142 INDEX. Meeoee — continued. of right of action in judgment, 807. judgment on collateral security, 807. reversal of judgment, 808. of liability of joint debtor, 808, 809. effect of judgment of inferior court, or of foreign court, in, 813, 814. efBect of action pending, 814. of reversion of lease, effect upon covenants, 10.56. Mine. debt for proceeds of, wrongfully taken, 74. lease of, condition as to existence of minerals, 596. covenant to repair, or compensate surface damage runs with, 1049. specific performance of covenants in lease of, 969. MiNiNa Company. on cost book principle, 4.58. authority of purser to borrow, 459. power of purser to su.e for calls, 366. MiSEEPEESENTATiON. See Eepbesentation ; Featoi ; Waeeanty . Mistake. of law and of fact, as affecting agreement, 262, 263. in act of agreement, 263. execution of deed or writing, 263 . bidding at auction, 264. in expressing agreement, 265. of one party only, 265. of one party, known to the other, 267. of both parties, 268. rectification of written contract, 266, 269. setting aside contract, where no real agreement, 272. apparent mistakes corrected by construction, 273. as to application of agreement, 275. ambiguity, patent and latent, 275, 276. of fact, inducing agreement, 277. of one party only, 277. of one party, caused by or known to the other, 280, 281. of both parties, 283. contracts conditional upon the mistake, 283. contracts independent of the mistake, 286. in matter of law, 287. as to private rights, 288. agreements for settling doubtful rights, 289. claims for money paid in mistake of fact or law, 83, 85. alteration in instrument by accident or mistake, 697. in correction of mistake, 704. as ground for refusing specific performance, 266, 269, 279. Monet Lent. upon fixed or indefinite credit, 742. upon mortgage, redeemable at any time, 725. to infant, 475. to wife, 498. by wife to husband, 492. to partnership on contract to share profits, 452. to banker on banking account, 837, 945. interest upon, 945. for illegal purpose, 664, 671. Money Paid. debt for money paid upon request, 38. request implied in law, 54. INDEX. 1143 Money Paid — continued. money paid under indemnity, 39. by agent in course of agency, 39. compulsory payment of liability of another, 56. paying own debt with money of another, 57. by surety of debt guaranteed, 58. contribution between co-debtors and co-sureties for, 59, 60, 373. contribution between co-insurers, 62, 655. subrogation of insurer to remedies of insured, 63. contribution to general average, 65. payment under restraint of goods, 66. distress for rent of another, 66. voluntary payment of debt of another, 68. of premium, to preserve policy, 41. transactions equivalent to money payment, 69. for illegal purpose, 663, 672, 676. See Illeoaiity. Monet EEOErvED. implied debt for, 70. money received by wrong or fraud, 71. by proceeds of wrongful conversion of goods, 73. proceeds of realty or fixtures wrongfully severed, 74. by compulsion, extortion, and undue influence, 77, 78. by compulsion of legal process, 79. as consideration for doing a legal duty, 81. under voluntary payment, 68, 82, 651. under mistake of fact and of law, 83, 85. for consideration which fails, 86. by agent, from or for a priucipal, 92, 93. as deposit with stakeholder, 95, 442, 672. by trustee or executor, 95, 96. transactions equivalent to receipt of money, 96. imder an illegal contract or for an illegal purpose, 82, 664, 672. where parties not in pari delicto, 83, 676. assignment of debt for, 1014. Month. meaning of, as calendar or lunar, 172, 732. See Time. MoBAL Obligation. money paid in discharge of, 69, 82. voluntary promise to perform moral obligation, 536. MOETGAGE. interest in land within Statute of Frauds, 213. equitable mortgage by deposit not within the statute, 213. time fixed for redemption not of essence of contract, 725. notice required for redemption, 948. parties to sale of mortgaged estate, 367. to several on joint account, 376, 780. interest recoverable on, 948, 958. proviso for increase or reduction of interest, 939, 949. limitation of action for money secured by, 829. for arrears of interest, 830. right and liability of mortgagee on covenants in lease, 1053, 1054. Motive. immaterial as to contract, 3, 279, 295. as to misrepresentations, 292, 295, 308. MxTTtJAi; Debts and Ceedits. set off of, 878. See Banceuptoy ; Set-oep. 1144 INDEX. MUTTTAI; PbOMISES. meaning and necessity of mutuality, 7. construction of, as dependent or independent, 119, 564, Neoessaeies. supplied to wife or child, liability for, 41, 497. contract of infant for, 472. supplied to lunatic, or during intoxication, 503, 505. supplied to ships, liability for, 390, 448. corporation may contract for, without seal, 512. Necessity. agency implied from, 390. in master of ship, 448, 449. See Masteb op Ship. in wife, 494. See Maekied Womau. NEaLIOENOB. liability of bailee for, 604, 610. solicitor for, 845, 908. carrier "at owner's risk," liable for, 604. Neqotiaele Insteument. meaning of term, 76, 1017. See Assionment ; Bill. Negotiation. preliminary to contract, 15, 146. preliminary agreement for formal contract, 147. New Ageeement. in rescission or alteration of contract, 682. form and requirements of, 686. contracts in writing, 687. requiring new stamp, 687. nOTatiou by acceptance of new debtor, 684. upon change in partnership, 685. discharge of bills by express renunciation, 688. in alteration of contract within Statute of Prauds, 688. parol variation, or rescission of, 690. to accept substituted performance, 691. in rescission or alteration of contract under seal, 692. acceptance of, in satisfaction of breach, 768. effect of, in discharging surety, 693. See Guaeantee. Notice. of acceptance, or revocation of offer, 21, 28. contracts conditional upon, 661. of dishonour of bills and notes, 562. of claim under guarantee or indemnity, 563, 931. of loss under insurance, 563. constructive loss by notice of abandonment, 563. of readiness of ship under charterparty, 673. of claim for money paid by mistake, 85. of want of repair, under covenant in lease, 669, 663. leases and tenancies determinable by, 582. contracts of service determinable by, 685. that time is essential, under contract of sale, 727. of intended breach of contract, 760. construction of, as to limit of time, 729. to debtor, of assignment of debt, 1005, 1008. See Assignment. to trustee, not binding on new trustee, 1010. assignee of land bound by notice of covenants, 1060, 1063. constructive, effect of, between vendor and purchaser, 317. INDEX. 1145 Notice op Axlotment. in acceptance of application for shares, 22. varying from terms of application, 18. lost in transmission, 24. Novation. by acceptance of new debtor, 684, 760. of policy of insurance, by transfer to another company, 684, 1031. acceptance of, by policy holder, 685. acceptance required by statute to be in 'writing, 685. of partnership debt, upon change in firm, 685, 760. Oblioation. by bond, obligor and obligee, 121. legal and moral, as consideration for promise, 69, 82, 536. OrFENCES. illegal compounding of, 627, 628. money paid for compounding, recoverable, 677. Offee op Conteaot. acceptance of, 16. See Acceptance. continuance of, 25. variation of, 30. revocation of, 27. by death, 31. refusal of, 31. not assignable, 20. in writing, accepted by parol, 151, 185, 253. Office. claim by rightful owner of, for fees wrongfully taken, 73. illegal and excessive fees extorted for discharge of, 80. illegal sale and resignation of, 624. sale of salaries and pensions of, 625. Opinion. statement of, not binding, 5, 296. Oppeession. contracts induced by, 350, 354. See Dueess. money illegally obtained by, 78, 80, 677. by creditor in oppression of debtor, 669, 677. Option. to purchase, time an essential condition of, 726. to take lease, assignable, 1044. lease with, for purchase or renewal, 1044. Oedee of Cotjet. by consent, for judgment subject to terms, 133. remedies upon, 107, 108, 133. interlocutory orders, 107. Pabol. meaning of term, 145. contract partly in writing and partly by parol, 151, 185, 253. proposal in writing accepted by parol, 151. written contract with parol variation, 162, 163, 253, 980. alteration by, of contracts within Statute of Frauds, 688. rescission of contract by, 690. discharge of bills and notes by, 688. agreement in alteration of contract under seal, 692. release by, 795. 1146 INDEX. Pabt Pebfoemanoe. of executory consideration, debt arising from, 46, 53. effect of, under Statute of Frauds, 259. Pabties. contract requires two parties, 362. same person as party on both sides, 363, 364. efBect of contract as to third parties, 365, 368. contract to pay third party, 365. party appointed to sue, 366. parties in equity, trustee and cestui que trust, 367. parties to indenture, deed poll, and contracts in writing, 368, 370. designation of parties by name or description, 370. as creditors, executors, 'vendors, &c., 371. joint parties, debtors, 371. non-joinder of co-debtor, 372. death of joint debtor, 374. joint creditors, 375. non-joinder of joint creditor, 375. death of joint creditor, 376. joint and several contracts, 376. construction of , as to joint and several liability, 378. as to joint and several rights, 380. rights of joint parties inter se, 383. See Conteibution. as principal and surety, 383. See Guabantee. extrinsic evidence admissible to identify parties, 178. mistake, and misrepresentation of identity, 21, 328. identity withia Statute of Frauds, 229. parties to contract made by or with agent, 387. See Agent. right and liabihty of undisclosed principal, 419, 420. Pabtneb. general authority of, to charge partners, 451, 453. liabUity as, from participation in profits, 451. loan to partnership upon share of profits, 452. ostensible and dormant, 419, 453. extent of authority of, as to contracts imder seal, 453. as to bills and notes, 454. as to borrowing money, 455. to receive payments, 455, 784. to give guarantees, 456. restrictions on authority, 456. contracts by, in fraud of partnership, 457. paying separate debt with assets of firm, 56, 458. rights and liabDities of, on contracts in name of firm, 370. on contracts iri name of partner or agent, 419, 420. joint and several liability of, 382, 451, 453, 454. dissolution of partnership and notice of, 457. by death of partner, habUity of executor, 607, 1084. account stated on dissolution of, 101, 838. apportionment of premium on dissolution, 53, 92. transfer of liability on change in firm, 685, 760, 1015. appropriation of payments between old and new firm, 790. interest of partners in real estate, 216. conversion of assets on dissolution, 217. set-off by or against partners, 873. specific performance of agreement for partnership, 973. Passenqeb. liabOity of carrier of, 605. See Caeeiee travelling at "own risk," 605. INDEX. 1147 PASSBNaEE— CM2