GJnrtttll IGatu i^rljnnl Sibrarg 
 
Cornell University Library 
 KD 1554.P77 1881 
 
 Principles of contract at law and in equ 
 
 3 1924 017 863 279 
 
&n 
 
 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/details/cu31924017863279 
 
PKINCIPLES OF CONTRACT 
 
 <L 
 
 AT LAW AND IN EQUITY 
 
 BEING 
 
 A TREATISE ON THE GENERAL PRINCIPLES CONCERNING THE 
 VALIDITY OF AGREEMENTS, WITH A SPECIAL VIEW TO 
 THE COMPARISON OF LAW AND EQUITY, AND WITH 
 REFERENCES TO THE INDIAN CONTRACT ACT, 
 AND OCCASIONALLY TO ROMAN, AMERI- 
 CAN, AND CONTINENTAL LAW 
 
 BY 
 
 FREDERICK POLLOCK, LL.D 
 
 Of Lincoln's Inn, Esq., Barrister-at-IxtBI, idte- Fellow of Trinity College, Cambridge 
 
 First American, from the Second English Edition 
 
 WITH NOTES 
 
 GUSTAVUS H. WALD 
 
 Of the Cincinnati Bar 
 
 CINCINNATI 
 
 EOBEttT CLARKE & CO 
 
 1881 
 
COPYRIGHT, 1881. 
 
 By ROBERT CLARKE & CO. 
 
TO THE 
 MEMORY OF HIS FRIEND, 
 
 LOREN HUNT EDSON, 
 
 THIS EDITION IS 
 
 AFFECTIONATELY INSCRIBED 
 
 BY 
 
 THE AMERICAN EDITOR. 
 
 (iii) 
 
TO 
 
 MY MASTER -IN THE LAW, 
 
 THE HON. SIR NATHANIEL LINDLEY, Knight, 
 
 ONE OP HER MAJESTY'S JUSTICES OF THE 
 COURT OF COMMON PLEAS, 
 
 I DEDICATE 
 
 THE FIRST FRUITS OF HIS TEACHING. 
 
 (V) 
 
PREFACE 
 
 TO THE FIRST AMERICAN EDITION. 
 
 Notwithstanding the number of existing books on the sub- 
 ject of Contract, the masterly excellence of Mr. Pollock's 
 work renders unnecessary any apology for offering it to the 
 profession. 
 
 The first edition of the work, appearing in 1875, in En- 
 gland, met with such hearty favor that a second edition be- 
 came necessary within two years and a half from the publica- 
 tion of the first. It is my hope that the present edition may 
 serve to gain from the profession in America that recognition 
 of Mr. Pollock's high ability as a law writer which his work 
 has already won for him from the profession in his own 
 country. The additions made to the book by me are confined 
 to the foot-notes, and are distinguished by being inclosed in 
 angular brackets, [ ]. The paging of the last English edi- 
 tion has been preserved in this. Besides references to Amer- 
 ican decisions, I have added references to the decisions made 
 in England since the date of the last English edition. 
 
 I take pleasure in acknowledging here my obligation for 
 the many courtesies extended to me by Maurice "William 
 Myers, Esq., the librarian of the Cincinnati Law Library, dur- 
 ing the preparation of this work. 
 
 G. H. W. 
 
 8 Masonic Temple, Cincinnati. 0., March, 1881. 
 
 (vii) 
 
PREFACE 
 
 TO THE FIRST EDITION. 
 
 The design of the present undertaking is to supplement 
 rather than to compete with existing works. Notwithstand- 
 ing all that has been written on the law of Contracts, there 
 seems still, and indeed especially at the present time, to be 
 room and occasion for a Treatise on the general principles 
 which determine the validity and effect of contracts in their 
 inception. 
 
 The development of these principles in English procedure 
 has been in great measure a concurrent one in the courts of 
 law and of equity, and at the same time has led to apparent 
 conflicts on many points, and real conflicts on some points, be- 
 tween the two s\-stems. The lamentable division of jurisdic- 
 tion, as Lord Westbury called it, which has now come to an 
 end, led unavoidably to a no less lamentable division of expo- 
 sition in text-books. Writers on the law of Contract have 
 confined themselves (save for very brief passing notices or al- 
 lusions) to the common-law parts of the subject, leaving the 
 rest to be sought in books on equity jurisprudence, where in 
 the press of other matter there was no room for its adequate 
 treatment, apart from the disadvantages of dealing with it 
 chiefly or wholly with a view of equity procedure, whereby 
 the more general and permanent elements and the broader 
 principles of law on which the rules were in truth founded 
 were in danger of falling out of sight. 
 
 Moreover there are really doubtful questions in the applica- 
 tion of the leading principles of Contract, the discussion of 
 which in a connected form has hitherto been almost if not al- 
 together prevented by the foregoing and other reasons. 
 
 («) 
 
X PREFACE 
 
 I have therefore attempted to give in this book, so far as 
 possible, au equal and concurrent view of the doctrines of com- 
 mon law and of equity, and to fix the scope of my subject so 
 that matters of doubt and difficulty might.be considered with 
 some fullness. 
 
 Among the topics to which this remark especially applies 
 are the following: the power of married women to bind their 
 separate estate by engagements in the nature of contract ; the 
 effect of the rules of partnership developed in courts of Equity 
 in limiting the capacity of the governing bodies of companies 
 to bind the corporation by their acts; the assignment of con- 
 tracts, and covenants running with land; Mistake, and the 
 rectification of instruments; the theory of Misrepresentation 
 as distinct from actual Fraud ; the equitable doctrine of Un- 
 due Influence; and to some extent the peculiar conditions at- 
 tached to the remedy of Specific Performance. 
 
 I have avoided dwelling on any thing practically unimport- 
 ant or out of- date, unless for special reasons, and have sought 
 to be brief in the statement of clear and familiar law. And I 
 have confined myself, where it seemed possible, to citing the 
 latest and best authorities, so as to indicate the means for a 
 complete search without multiplying merely illustrative refer- 
 ences. At the same time I have endeavored to show distinctly 
 the authority which establishes each separate proposition, so 
 that the reader may not have to look through many cases to 
 find at last that few or none are relevant, but may be directed 
 at once to the decisions material to the very point before him. 
 
 The work may be looked upon as being, in its general plan, 
 an endeavor to answer the questions that arise upon the in- 
 ception of a contract. Is there an agreement concluded in 
 terms ? (Ch, I.) Is it made between competent parties ? (Ch. 
 II.) Does it satisfy the requirements of the law as to form 
 (if any there be for the particular kind of contract) (Ch. III.) 
 and consideration ? (Ch. IV.) Who may now, or hereafter, 
 
TO THE FIRST EDITION. XI 
 
 sue or be sued upon it ? (Oh. V.) So far as to what may be 
 called the first elements. We have further to ask if there is 
 nothing in the matter of the agreement to interfere with its 
 validity : whether it be unlawful (Gh. VI.) or impossible (Oh. 
 VII.) Again, the question may arise whether there is noth- 
 ing to prevent the expressed consent of the parties from hav- 
 ing its full effect. By reason of mistake (Ch. VIII.) the con- 
 sent may be only apparent, or a true consent may be wrongly 
 expressed; or by reason of misrepresentation (Ch. IX), fraud 
 (Oh. X.), coercion or undue influence (Ch. XI.), the consent of 
 one of the parties may not be binding upon him. Finally 
 there may be a question whether we have to deal with one of 
 those curious and more or less anomalous cases where there is 
 an agreement neither void nor voidable, for some purposes rec- 
 ognized and having legal consequences, yet not directly en- 
 forceable (Ch. XII.) Questions arising on the performance 
 or discharge of contracts are not considered except inciden- 
 tally. 
 
 Some digressions have been deliberately admitted, partly 
 for reasons of practical convenience, partly on account of the 
 subjects havingaspecial interest on historical or other grounds. 
 In one or two instances I have sacrificed scientific arrange- 
 ment for the sake of keeping things in the place where I 
 thought a reader would expect to find them: thus, the rules 
 as to the rescission of voidable contracts in Ch. X. should 
 strictly have formed a separate chapter.* 
 
 The Indian Contract Act has been almost constantly kept 
 in view. Most of the sections relevant to the topics here con- 
 sidered will be found cited in full either in the text or in 
 the notes. Possibly this may be not without practical use to 
 some of my readers : but apart from this, the Contract Act 
 deserves, as it appears to me, more attention from English 
 
 * I have ventured to act on this in the second edition. Ch. IX. now embraces 
 both Misrepresentation and Fraud. 
 
Xli PREFACE TO THE FIRST EDITION. 
 
 lawyers than, to my knowledge, it has yet received. It is a 
 most instructive example of what can be done to consolidate 
 and simplify English case-law, and shows better than any dis- 
 cussion can do what are the real advantages of codification, 
 the real difficulties to be overcome, and the most likely means 
 of overcoming them. 
 
 I have not attempted to collect American authorities ; the 
 ever-growing bulk of English reports alone is already formida- 
 ble enough to deal with. But some account has been given 
 of a certain number of decisions of the Supreme Court, se- 
 lected as being recent or otherwise of marked importance. 
 
 Considering the amount of coincidence (if not more than 
 coincidence) between English and Roman law in the main 
 principles of Contract, I have felt justified in making a pretty 
 free use of the Eoman law for purposes of illustration and 
 analogy. I have also referred at times to modern Continental 
 Codes, especially where it seemed that light might be thrown 
 on a topic of special legislation, or of what is called " the pol- 
 icy of the law," by extending the range of observation. How- 
 ever, no systematic comparison has been undertaken. On 
 points of Roman law (and to a considerable extent, indeed, 
 on the principles it has in common with our own), I have con- 
 sulted and generally followed Savigny's great work. 
 
 My obligations to foregoing English writers are acknowl- 
 edged to the best of my power in their proper places in the 
 text. Here, I must express my thanks to my friend, Mr. W. 
 R. Kennedy, of Lincoln's Inn, for valuable suggestions and 
 contributions, especially on the subject of Ch. VII. ; and, in 
 like manner, to my friend, Mr. G. H. Blakesley, of Lincoln's 
 Inn, especially as to Ch. X. 
 
 F. P. 
 
 5, New Square, Lincoln's Inn, 
 December, 1875. 
 
PREFACE 
 
 TO THE SECOND EDITION. 
 
 In this edition, the Appendix on Agency has been trans- 
 ferred from Chapter VIII. to Chapter V., as a more appro- 
 priate place, and the division of Chapters IX. and X. is al- 
 tered. I have also added a new Appendix to Chapter V., 
 giving a fuller account of a series of cases in the Year Books, 
 which in the first edition were merely referred to. This piece 
 of the mediaeval history of English law will, I hope, be not 
 without curiosity for some of my readers. 
 
 Otherwise, the plan and order of the work are unchauged: 
 but it has been revised throughout, and various completions 
 and corrections have been made, besides the additions required 
 by new cases. .As to these last, there is always a temptation 
 to evade the duty of considering their whole bearing on the 
 points they deal with, working J;heir effect into the text, and 
 for this purpose recasting, if necessary, a sentence or even a 
 paragraph. In fulfilling this duty, there may be some trou- 
 ble, and there is little or none in the facile course of evasion 
 which consists in merely adding a new reference in a foot- 
 note. I have striven to withstand the temptation, but I can 
 not be sure that I have always withstood it. 
 
 The Index has, in pursuance of a friend's suggestion been 
 made fuller than it was, and I trust that by means of this and 
 other improvements in the present edition the book will be 
 found more deserving of the favor which has already been 
 shown to it by the profession. 
 
 I would add to what I have already said of the Indian Con- 
 tract Act that an authorized English reprint of it would be 
 of great use and convenience. At present copies can not be 
 
 (xiii) 
 
XIV PREFACE TO THE SECOND EDITION. 
 
 procured in this country without much trouble and delay. It 
 seems a strange thing that the legislation of France and Ger- 
 many should be more accessible to English students than that 
 of our own Empire. 
 
 F. P. 
 5, New Square, Lincoln's Inn, 
 April, 1878. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 Agbeement, Proposal and Acceptance. 
 
 PAGE 
 
 The conception of Contract in general. Analysis of Agreement 1 
 
 Specific mark of Contract 5 
 
 Definition in Indian Contract Act.... , 6 
 
 Communication and revocation of proposal 8 
 
 Acceptance follows same rules 11 
 
 Contracts by correspondence: review of cases 13 
 
 Probable state of existing law 16 
 
 Provisions of Indian Contract Act 18 
 
 Death of proposer before acceptance 20 
 
 Acceptance must be unqualified: instances 21 
 
 Agreement must be certain 25 
 
 Illusory promises 26 
 
 Implied proposal or acceptance 28 
 
 Acceptance by conduct: receipt of documents containing special con- 
 ditions .. 30 
 
 German Commercial Code on formation of Contracts 32 
 
 CHAPTER II. 
 
 Capacity of Parties. 
 
 Past I. — Natural Persona. 
 
 1. Infants. General Statement 34 
 
 Contracts generally voidable, not void : and qu. whether in any case 
 
 void at common law 35 
 
 Special classes of contracts considered on this point 36 
 
 Avoidance of infants' contract 41 
 
 Infants' Relief Act, 1874 42' 
 
 Liability on obligations incident to property 40 
 
 On beneficial contract 47 
 
 For necessaries 48 
 
 "What are necessaries 49 
 
 Certain contracts of infants binding by custom 53 
 
 (xv) 
 
XVI TABLE OF CONTENTS. 
 
 PAGE 
 
 By statute 51 
 
 Liability of infants on wrongs collateral to contract 54 
 
 In equity, on representations of full age 56 
 
 Subsequent contract after full age prevails 57 
 
 2. Married Women. Generally can not contract 58 
 
 Jus mariti. and survivorship 59 
 
 Can not revive barred debt by acknowledgment 60 
 
 Exceptions at common law 60 
 
 Agreements for separation between husband and wife alone 02 
 
 Statutory exceptions: judicial separation, etc 63 
 
 Married "Women's Property Aot 63 
 
 Separate estate . 05 
 
 General history of the doctrine 65 
 
 Modern law: rules in Johnson v. Gallagher 67 
 
 "Engagement" binding separate estate distinguished from true con- 
 tract 68 
 
 Special questions considered 70 
 
 Is after-acquired separate estate bound ? TO 
 
 Is general estate bound after cessation of coverture? 71 
 
 Is separate estate liable for debts before marriage? 71 
 
 Are ordinary forms of contract binding? 73 
 
 Is the separate estate liable on quasi-contracts? 74 
 
 General tendency of modern authority 75 
 
 3. Lunatics and Drunken Persons. Undisputed points 76 
 
 History of opinions as to contract of lunatic, etc., in general 77 
 
 Modern law: contract not void but voidable....: 80 
 
 Indian Contract Act , 82 
 
 Part II. — Artificial Persons. 
 
 Nature of artificial persons 83 
 
 Corporations 85 
 
 Capacities of corporations in themselves.... 86 
 
 As limited by positive law 90 
 
 Conflicting theories of corporate powers ! 91 
 
 Application of partnership law 93 
 
 Public policy and interests of the public 95 
 
 Authorities considered 99 
 
 On extent of corporate powers in general 99 
 
 On application of doctrines of partnership 100 
 
 Ratification by assent of shareholders , 111 
 
 On doctrine of public policy 113 
 
 Decision of House of Lords on Companies.. Act, 18G2 114 
 
 Corporations can not bind themselves by negotiable instruments: ex- 
 planation of this ll.j 
 
 Exceptions 117 
 
 Corporations bound by estoppel, etc 118 
 
TABLE OF CONTENTS. Xvit. 
 
 CHAPTER III. 
 
 Form of Contract. 
 
 PAGE" 
 
 Position of informal contracts in ancient law 119 
 
 Formal and informal contracts in Roman law 120 
 
 Similar doctrine of old English law in Braoton, etc 1L'4 
 
 Remedies on contracts: debt on covenant or simple contract 125- 
 
 Action of account 126 
 
 Introduction of assumpsit to supply remedy on executory agreements... 127 
 
 Modern law: requirements of form exceptional 129 
 
 Contracts of Record 129 
 
 Contracts of Corporations: old law '. 130 
 
 Modern exceptions to requirement of seal 132 
 
 Trading corporations: Contracts in course of business 133 
 
 Non-trading corporations: Contracts necessary and incidental to corpo- 
 rate purposes 136 
 
 Municipal corporations, etc ^ 137 . 
 
 Appointments of officers 137 
 
 Executed contracts with corporation's 138 
 
 Statutory forms of contract 139 
 
 Summary . v 140 
 
 Negotiable Instruments 141 
 
 Statute of Frauds 141 
 
 Guaranties 142 
 
 Interests in land 143 
 
 Agreements not to be performed within a year 144 
 
 Sale of goods 144 
 
 The "note or memorandum" 145, 
 
 Bills of Sale, etc 146 
 
 Marine Insurance 148 
 
 Transfer of Shares 148 
 
 Acknowledgment of statute-barred debts 149 
 
 Foreign laws analogous to Statute of Frauds 149- 
 
 CHAPTER IV. 
 Consideration. 
 
 The conception peculiar to English law : the Roman law distinguished.. 151 
 
 History of the doctrine 15S 
 
 Promises in writing and promises founded on moral duty 157 
 
 Adequacy not material 158 
 
 Contingent consideration 160> 
 
 Reciprocal promises 160» 
 
 Promises to perform duties already existing... 161 
 
 Consideration for discharge of contract 1G4: 
 
 For variation of contract.; • 165 
 
 Forbearance to sue...: ; 165* 
 
XVIli TABLE OF CONTENTS. 
 
 PAGE 
 
 Compromises .- 166 
 
 Treatment of gratuitous contracts under seal in equity 167 
 
 Imperfect gifts , 169 
 
 CHAPTEE V. 
 
 Persons ajtected by Contract. 
 
 Definitions and rules 170 
 
 1. Parties must be certain 173 
 
 Contracts by advertisement 174 
 
 Nature of the promise 176 
 
 Modern extensions of the doctrine: Denton v. G. N. Ky. Co. (time- 
 table) 177 
 
 Warlow v. Harrison (sale by auction) 179 
 
 Difficulties of the doctrine as extended 181 
 
 Contracts by '-general invitation" in Equity 184 
 
 2. Third Persons not bound , 187 
 
 Apparent exceptions 188 
 
 Novation '. 189 
 
 S. Third Persons not entitled by the contract itself 190 
 
 Apparent exceptions .' 191 
 
 Trusts 193 
 
 Exception of certain provisions for children 194 
 
 Statutory exceptions 195 
 
 Contract for benefit of third person gives him no right of action at. law. 196 
 
 Authorities in equity ; 197 
 
 Third person can not be empowered to sue for convenience of parties.. .. 199 
 
 4.. Assignment of Contracts 201 
 
 Notice to debtor 204 
 
 Assignment "subject to equities" , 206 
 
 Assignment free from equities by agreement of parties: transferable 
 
 debentures 208 
 
 But agreement of parties can not make contract negotiable 211 
 
 Negotiable instruments 211 
 
 Rights of bona fide holder 212 
 
 "What instruments may be negotiable 213 
 
 Transferable shares 215 
 
 •Obligations attached to property 217 
 
 Covenants running with land 218 
 
 Bills of lading '. 220 
 
 Conflict between common law and equity as to burden of covenants run- 
 ning: with land 221 
 
 APPENDIX A. 
 
 On the parties to actions on contracts made by agents 224 
 
 1» Contracts by authorized agents 225 
 
TABLE OF CONTENTS. XIX 
 
 PAGE 
 
 "When agent known to be such, there is contract with principal 225 
 
 If principal named, prima facie no contract with agent 225 
 
 If principal not named, prima facie there is contract with agent 225 
 
 These rules subject to evidence of contrary intention 226 
 
 When agent not known to be such, there is generally contract with un- 
 disclosed principal 227 
 
 Exceptions to and limits of the rule 227 
 
 Eights of other contracting party .' 229 
 
 Professed agent not having authority can not sue on the contract if a re- 
 sponsible principal has been named 230 
 
 Nor be sued on it 232 
 
 But may be sued on implied warranty of authority 232 
 
 "Where no principal named, or one who could not be responsible, pro- 
 fessed agent is treated as principal , 234 
 
 Authority determined by death of principal 236 
 
 Indian Contract Acton contracts of agents 236 
 
 APPENDIX B. 
 Early authorities on Assignments of Choses in Action , 237 
 
 CHAPTEE VI. 
 
 Unlawful Agreements. 
 
 Of unlawful agreements in general, and their classification 241 
 
 A. Contrary to positive law 244 
 
 Agreements to commit an offense 244 
 
 Agreements wrongful against third persons 246 
 
 Fraud of creditors 247 
 
 Dealings between creditor and principal debtor to prejudice of surety.... 250 
 Dealings by agent, executor, etc., against his duty 251 
 
 . Settlements in fraud of marital right 254 
 
 Marriages within prohibited degrees 256 
 
 Eoyal Marriage Act - , 258 
 
 Agreements illegal by statute 258 
 
 Eules for construction of prohibitory statutes 260 
 
 When agreements may be not void though forbidden, or void without be- 
 ing illegal 264 
 
 "Wagers -• 265 
 
 B. Agreements contrary to morals or good manners 266 
 
 Agreements in consideration of illicit cohabitation 267 
 
 Validity of separation deeds 270 
 
 Agreement for future separation void 273 
 
 Publication of immoral or seditious works is not merely immoral but an 
 
 offense 274 
 
 C. Agreements contrary to public policy 275 
 
 •Connection of the doctrine with the common law as to wagers 276 
 
 Modern extent of the doctrine: Egerton v. Browiilow 277 
 
XX TABLE OF > CONTENTS. 
 
 PAGE-- 
 
 Public policy as to external relations of the State: trading with ene- 
 mies 281 
 
 Effect of war on subsisting contracts , 282 
 
 Hostilities against friendly states 283 
 
 Trade with belligerents not unlawful 284 
 
 Foreign revenue laws 284- 
 
 Public policy as to internal government: attempts to influence legislation, 
 
 etc., by improper means '. 286 
 
 Sale of offices, etc 289 
 
 "Stifling prosecutions" and compounding offenses 260 
 
 Agreements for reference to arbitration: extent of their validity at com- 
 mon law, and by C. L. P. Act, 1854 292 
 
 Maintenance and champerty 294 
 
 Bules as to champerty 296 
 
 Purchase of subject-matter of suit 298- 
 
 Statute of Henry VIII. against buying pretended titles 300' 
 
 Maintenance in general 302 
 
 Public policy as to duties of individuals: agreements as to custody of 
 
 children R03 
 
 Discretion of equity 304 
 
 Custody of Infants Act 305 
 
 Insurance of seamen's wages , 305- 
 
 Public policy as to freedom of individual action 305 
 
 Agreements in restraint of marriage 306 
 
 Agreements to influence testators 308 
 
 Agreements in restraint of trade 309 
 
 Partial restraint admitted ; 310- 
 
 History of the doctrine 311 
 
 What agreements in partial restraint are valid, and of the rule as to 
 
 limits of space ■ 313 
 
 Table of decisions since Avery v. Langford • „■ ... 315- 
 
 Contracts to serve for life or exclusively 316- 
 
 D. Judicial treatment of unlawful agreements in generali 
 
 Independent promises, where some lawful, and some not 317 
 
 "Where consideration or immediate object unlawful. 318 
 
 Unlawful ulterior intention 319 
 
 Connection with unlawful design 'already executed 321 
 
 Securities for payment under unlawful agreement are void 323 
 
 Extrinsic; evidence of illegality 324 
 
 Specific unlawful intention, how shown or contradicted 325- 
 
 "When payments can be recovered : rule as to party in pari delicto 327 
 
 Exceptions: duty of agents to principal unaffected 329' 
 
 Money recoverable where agreement, not executed 330- 
 
 "Where the payment was compulsory ....;..., 331 
 
 In equity where circumstances of fraud, etc., as between the parties 332" 
 
 Final statement of the rule and qualification'. 333 
 
 Conflict of laws in space. ..» < ; , 333 
 
 Generally lex loci, solutionis prevails 333- 
 
TABLE OF CONTENTS, XXI 
 
 PAGE 
 
 ■Exceptions— -w hen a prohibitory municipal law is not merely local 334 
 
 When agreement is immoral jure gentium.... , 335 
 
 Treatment of slave contracts in English courts: Santos v. lllidge 336 
 
 -Other instances of conflict of laws as to validity of agreement considered. 337 
 
 Agreements against interests Of the local sovereign 339 
 
 Conflict of laws in time : subsequent, illegality dissolves contract 340 
 
 Eules as to knowledge of parties collected 341 
 
 APPENDIX C. 
 :-Statutes forbidding or regulating particular kinds of contracts 342 
 
 APPENDIX D. 
 ^Provisions of Indian Contract Act on unlawful agreements 345 
 
 CHAPTER VII. 
 
 Impossible Agreements. 
 
 Performance of agreement may be impossible in itself, by law, or in 
 
 fact (i.e., by reason of particular state of facts) 348 
 
 -General statement of law 349 
 
 Agreement impossible in itself is void 350 
 
 Logical impossibility 352 
 
 Impossibility merely relative to promisor no excuse 353 
 
 Agreements impossible in law 354 
 
 Performance becoming impossible by law 355 
 
 Impossibility in fact no excuse where contract absolute 356 
 
 -Obligation to pay rent when premises accidentally destroyed 358 
 
 Exceptions in cases of events not contemplated by the contract 360 
 
 Performance dependent on specific thing existing: Taylor v. Caldwell, 
 
 Appleby v. Meyers 363 
 
 Impossibility at date of contract from existing state of things not known 
 
 to the parties 365 
 
 Covenants to work mines, etc. ; Clifford v. Watts 365 
 
 Construction of express exceptions in certain contracts 366 
 
 Performance dependent on life or health of a person: Eobinson v. Dav- 
 ison 367 
 
 Anomalous decision on contract to marry in Hall v. Wright 369 
 
 Bights already acquired under contract not discharged by subsequent im- 
 possibility 370 
 
 -Substituted contracts 371 
 
 Impossibility by default of either party: such default of promisor is 
 
 equivalent to breach of contract 371 
 
 Default of promisee discharges promisor 371 
 
 Alternative contracts where one alternative is or becomes impossible.... 373 
 -Conditional contracts 374 
 
XX11 TABLE OP CONTFNTS. 
 
 PAC ■ 
 
 Impossible conditions in bonds: peculiar treatment of them 3VO- 
 
 Indian Contract Act on impossible agreements 379- 
 
 OHAPTEE VIII. 
 
 Mistake. 
 
 Part I. — Of Mistake in General. 
 
 Classification of conditions affecting validity of consent in agreement: 
 
 Mistake, Fraud, etc .' 381 
 
 A. Mistake in general 384 
 
 Generally it is in itself inoperative either to avoid civil liabilities 385 • 
 
 (Except in certain special cases, and except so far as in the case of pur- 
 chase for value without notice ignorance is a condition of acquir- 
 ing rights) 386 
 
 Or to take away or alter existing rights 390- 
 
 Or to alter construction of contract .' 391 
 
 Saving as to variation by mutual consent 392 
 
 Special cases where mistake important 393 
 
 B. Mistake of Fact and. of Law 393 
 
 Limits of the distinction : where certainly or probably not applicable.... 394 
 
 Common mistake and rectification of instruments 395 
 
 Kenunciation of rights 396 
 
 Recovering back money paid 397 
 
 Past II. — Mistake as excluding true consent. 
 
 Error as to nature of transaction: Thoroughgood's case 401 
 
 " " " Poster v. Mackinnon 401 
 
 Cases in equity , 403 
 
 Distinction as to contracts of lunatic, etc 405 
 
 Error as to legal character of transaction 406 
 
 Error as to person of other party 407 
 
 Analogous doctrines : satisfaction by stranger 410' 
 
 Personal contracts not transferable 411 
 
 Agency 412 
 
 Error as to subject-matter.... 413 
 
 With regard to identity of specific thing 414 
 
 Inclusion of parcels by mistake on sale of land. 415 
 
 Contracts to take shares exceptional 417 
 
 Error with regard to kind, quantity, etc 418 
 
 Error in quantity: 419 
 
 Error as to quality inoperative unless material and common to both 
 
 parties 420 
 
 Even if error of one party known to, but not caused by, the other 422 
 
 Cases distinguished where misdescription of estate on sale entitles pur- 
 chaser to rescind 424 
 
 Error as to existence of subject-matter.... 424 
 
 Purchase of one's own property 427 
 
TABLE OF CONTENTS. XX11I 
 
 PAGE 
 
 Herein of ignoraniia juris : Coopers. Phibbs 427 
 
 Where only one party is ignorant of the material fact, and generally 
 
 where fundamental error is caused by fraud or misrepresentation ... 429' 
 
 Error as to sample in case of sale by sample 431 
 
 Eemedies of party to void agreement 432 
 
 Election to adopt agreement 432 
 
 Pakt III. — Mistake in expressing true consent. 
 
 Correction of mistake in expressing intention by — 
 
 1. Rules of construction common to law and equity 434 
 
 Effect given to general intent 435 
 
 Observations on evidence and construction 437 
 
 Rule as to exclusion of parol evidence 438' 
 
 Apparent exceptions , 439 
 
 Real exceptions in equity 440 
 
 2. Peculiar rules of construction in equity 441 
 
 Restriction of general words 442 
 
 Stipulations as to time 443 
 
 Relief against penalties 445 
 
 3. Peculiar Defenses and Remedies derived from Equity.... 44$ 
 
 Defense against specific performance where contract incorrectly expressed 
 
 by mistake 448 
 
 Effect of Statute of Frauds herein 449 
 
 Rectification of instruments 450 
 
 Oral evidence howfar admissible 451 
 
 Real intention must be distinctly proved, and common to all parties 453 
 
 Quasi estoppel of one party acting as other's agent in framing instru- 
 ment 455 
 
 Reformation of settlements 455 
 
 Who is entitled to have deed rectified 456 
 
 Option to rectify or set aside in certain cases 457 
 
 APPENDIX E. 
 Mr. Benjamin's remarks on Boulton v. Jones considered 457 
 
 APPENDIX P. 
 Bracton on Fundamental Error 458 
 
 APPENDIX G. 
 Mistake in Wills 45» 
 
&X1V TABLE OF CONTENTS. 
 
 CHAPTER IX. 
 
 Misrepresentation and Fraud. ■ • 'V 
 
 Pakt I. — Misrepresentation. 
 
 PAGE 
 
 . General doctrines of common law as to representations.... ...462 
 
 W equity ..„.. 463 
 
 Representations amounting to Warranty or Condition 464 
 
 Distinctions between warranty and condition on sale of goods 465 
 
 Cases specially treated : Marine Insurance ; 466 
 
 Same rule not applicable to Life Insurance 467 
 
 Fire Insurance 468 
 
 Suretyship 469 
 
 Extent of creditor's duty to surety. 471 
 
 Sales of land 471 
 
 Specific Performance and Compensation : three classes of cases distin- 
 guished 472 
 
 General duty of vendor to describe property correctly 476 
 
 Wilde v. Gibson considered 478 
 
 Family Settlements 479 
 
 Contracts to take shares in companies and contracts of promoters 480 
 
 Contract to marry not exceptional 481 
 
 Effect of misrepresentation on contracts in general 482 
 
 Bight to rescind distinguished from substantive right of action as for 
 
 deceit , 482 
 
 Reckless or negligent ignorance equivalent to knowledge of untruth...... 483 
 
 Present (probable) doctrine of equity: untrue statement without rea- 
 sonable ground*, though not known to bo untrue, -is ground for re- 
 scission , 485 
 
 Effect of party misled having means of knowledge 486 
 
 Material only where he has acted on his own information 487 
 
 Or in a case of mere non-disclosure 488 
 
 Part II. — Fraud. 
 
 Fraud generally but not always includes misrepresentation 489 
 
 Right of rescission 490 
 
 Fraudulent representation or concealment" -J90 
 
 Special rule as to sales by auction 493 
 
 Marriage an exception : not avoided by fraud ...„ 493 
 
 Consent of third person procured by fraud is voidable 494 
 
 CHAPTER X. 
 
 The Eight of Rescission. 
 
 General rules as to rescission for misrepresentation or fraud 495 
 
 The representation relied on must be of fact 495 
 
 Equitable doctrine of "making representations good" distinguished 497 
 
TABLE OF CONTENTS. '* r -V 
 
 PAOK 
 
 The representation must be such as to induce the contract 499 
 
 •Contracts. connected with ^previous fraud -500 
 
 Representation must be by a party to the contract. 50 L 
 
 Representations of agents and liability of principals 501 
 
 Statements of directors and promoters .; BOS 
 
 Representation must be in same transaction . 50-t 
 
 Rights of party misled : option to rescind 505 
 
 Election how to be made 507 
 
 Right exerciseable by and against representatives 510 
 
 No rescission where the former state of things can not be restored 510 
 
 No rescission againt innocent purchasers for value 512 
 
 Distinction in cases of obtaining goods by fraud where no property passes. 513 
 Rescission must be within reasonable' time, i.e., a time not such as to show 
 
 acquiescence 51 i 
 
 Special duty of shareholders in companies 517 
 
 Result of unfounded charges of fraud 518 
 
 Cancellation of instruments , 51SJ 
 
 CHAPTER XI. 
 Duress and Undue Influence. 
 
 .1. Duress at Common Law 520 
 
 Recovery of money paid under compulsion 522 
 
 II. The equitable doctrine of Undue Influence 523 
 
 Presumption of influence from confidential relations h'l'i 
 
 Rules as to burden of proof: Hunter v. Atkins 526 
 
 Rules as to voluntary settlements 52f) 
 
 Presumptions against and duties of persons in fiduciary relations 530 
 
 Family arrangements , 53" 
 
 Particular cases where influence presumed : 
 
 Relations analogous to parent and child 53-1 
 
 To solicitor and client 535 
 
 Spiritual influence 530 
 
 Duty of trustees 537 
 
 Undue influence without fiduciary relation 537 
 
 Undervalue material only as evidence 531) 
 
 "Whether in itself a ground for refusing specific performance 541 
 
 Foreign law as to effect of undervalue ; 545 
 
 Exceptional protection of expectant heirs and reversioners 547 
 
 Old law as to sales of reversions 550 
 
 Act of 1867 552 
 
 Rules of equity as to " catching bargains " not affected : 
 
 What are •' patching bargains " 553 
 
 'Burden of proof and terms of relief ; ....;.. 555 
 
 Sales of reversionary interests v 557 
 
 "Surprise" and " improvidence" not substantive ground of relief against 
 
 contracts, bui only evidence of fraud, etc 558 
 
XVI TABLE OF CONTENTS. 
 
 PAGE 
 
 Eight of rescission for undue influence 561 
 
 Confirmation and acquiescence 5t>2 
 
 APPENDIX H. 
 Indian Contract Act on Fraud, etc fi'i-l 
 
 CHAPTER XII. 
 Agreements of Imperfect Obligation. 
 
 Nature of Imperfect Obligations : Eight without remedy 568 
 
 1. Remedy lost. Statutes of Limitation 569 
 
 • Rights of creditor notwithstanding loss of remedy by action 570' 
 
 Acknowledgment 571 
 
 "What is sufficient acknowledgment 572 
 
 Statutes of limitation belong to lex fori 573 
 
 2. Conditions precedent to remedy not satisfied, 
 
 A. Statute of Frauds, s. 4 574 
 
 A law of procedure only, not of substance 576- 
 
 Results of informal agreement: 
 
 Where money paid 578 
 
 Where agreement executed ". 579 
 
 Part performance in equity 580 
 
 Informal antenuptial agreements, and confirmation by postnuptial writ- 
 ing 581 
 
 Distinction of equitable estoppel 583 
 
 B. The "Slip " in marine insurance 584 
 
 Recognition of it for collateral purposes by modern decisions 585 
 
 Of stamp duties in general 587 
 
 C. Statutes regulating professions 589 
 
 Costs of uncertificated solicitors -. 589 
 
 Medical practitioners: Medical Act, 1858 091 
 
 Apothecaries' Act , 591 
 
 Special questions on Medical Act 592. 
 
 3. No remedy at all. 
 
 Counsel's lees 593 
 
 As to non-litigious business, or account with solicitor, qu £94 
 
 Special agreements between solicitor and client.. 596 
 
 O-rtain contracts of infants since Infants' Relief Act 597 
 
 Tippling Act ; 597 
 
 Trade Union agreements 598 
 
 * converse case on repeal of usury laws 599 
 
 '1 reatment of equitable obligations at Common Law ''. 599^ 
 
 Summary of results of this chapter 600- 
 
TABLE OF CASES. 
 
 [The figures refer to the] pages. All the cases occurring in any note are re- 
 ferred to as of the page whereon the note begins.] 
 
 A .& P. Telegraph Co. v. Barnes, 251 
 Abbey v. Chase, 233 
 Abbott v. Bayley, 62 
 
 — v. Draper, 578 
 
 — u. Sworder, 543 
 
 — v. Inskip, 580 
 
 — v. Johnson, 93 
 
 — v. McKinley, 226 
 
 — v. Rose, 402 
 
 — o. Shepherd, 18 
 Abby v. Billups, 133 
 Abel v. Alexander, 162 
 
 — v. Boynton, 302 
 
 Aberaman Ironworks Co. v. Wiekens, 
 
 476 
 Acken burgh v. McCooI, 253 
 Ackroyd v. Smith, 222 
 Adair v. Adair, 524 
 
 — v. Insurance Co., 202 
 Adams v. Adams, 25, 292 
 
 — v. Barrett, 320 
 
 | — v. Couillard, 320 
 P — v. His Creditors, 131 
 
 — v. Leavens, 207 
 
 — •». Lindsell, 13, 32 
 
 — v. Morton, 166 
 
 — v. Rodarmel, 207 
 
 — o. Stevens, 591 
 Addinell's case, 22 
 Addison v. Cox, 205 
 Adye v. Hanna, 296 
 Crated Bread Co. v. Gregg, 88 
 'Agar v. Athenaeum Life Ass. Soc, 111 
 Aggs v. Nicholson, 213 
 
 Aguilar v. Aguilar, 74 
 Ahearne v. Hogan, 525, 536 
 Aiken v. Blaisdell, 262, 230 
 
 — v. Short. 397 
 .Ainsworth v. Ritt, 358 
 
 Albee v. Wyman, 272 
 
 Albert v. Perry, 303 
 
 Albion Steel Win; Co. v. Martin, 252 
 
 Aldborough, Earl of v. Trye, 550 
 
 Alderson «. Maddison, 584 
 
 Aldrich v. Ames. 143 
 
 . — v. Jackson, 465 
 
 — v. Lyman, 160 
 Alexander v. Crosbie, 424, 452 
 
 Alexanders. N. VV. C. University, 252" 
 
 — v. Pierce, 521 
 Alger v. Scovill, 143 
 
 — v. Thacker, 310, 313 
 Alison, ex parte, 42U 
 Allard v. La-mirande, 296 
 Allen v. Allen, 38 
 
 — v. Anderson, 421 
 
 — v. Berryhill, 82, 406 
 
 — v. Coit. 226 
 
 — v. Hammond, 425, 426, 430 
 
 — v. Jackson, 308 
 
 — v. Pegram, 234 
 
 — v. Schuchardt, 575 
 
 — v. Sowerby, 439 
 
 — %. Thomas, 198 
 Aller v. Aller, 168 
 Alliance Bank v. Broom, 166 
 Allis v. Billings, 36, 406 
 Allkins v. Jupe, 327, 343 
 Allore-B. Jewell, 540,. 561 
 Allshouse c. Ramsay, 577 
 Allsopp v. Wheatcroft, 313, 314, 316 
 Alston v. Durant, 522 
 
 Alton v. Midland Ry. Co., 55 
 Alvanley v. Kinnaircl, 417 
 Alvarez de la Rosa v. Prieto, 592 
 Alvord v. Smith, 180 
 Alwood v. Mansfield, 562 
 Amer. Screw Co. v. Sheldon, 393 
 American Steamship Co. v. Young, 522-' 
 Ames v. Jackson, 578 
 Anchor Ins. Co.'s case, 397 
 Ancona •». Rogers, 147 
 Anderson's case, 391 
 Anderson v. Anderson, 270 
 
 — V-. Baxter, 572 
 
 — v. Burnett, 499 
 
 — v. Moncrief, 329 
 
 — v. Badcliffe, 296, 298 
 
 — v. Walter, 402 
 
 — v. Van Alen, 205 
 Anderton v. Shoup, 226 
 Andrew v. Spurr, 395 
 Andrews, He, 303 
 
 — v. Jones, 561 
 
 — v. Marrett, 251 
 
 — v. Salt, 304 
 
 xxvil. 
 
XXV1U 
 
 TABLE OF CASES. 
 
 Angell, Ee. 596 
 
 — 13. Duke, 143, 359 
 Anglo-Egyptian Navigation Co. v. Ren 
 
 nie, 364 
 Anketel v. Converse, 388 
 Anonymous, 255 
 Anthony v. Hen-man, 198 
 
 — v. Hutchins, 538 
 Antoine v. Mprshead, 283 
 Apperson v. Cross, 251 
 Appleby v. Johnson, 21 
 
 — v. Meyers, 363 
 Arbutbnot v. Norton, 290 
 Areber v. Hudson, 525, 530, 534 
 Ardglasse v. Muschamp, 549 
 Arendale v. Morgan, 513 
 Argenti v. San Francisco, 97, 133 
 Argos, Cargo ex, 259 
 
 Argus Co. v. Mayor, 146 
 Armfield v. Tate, 320 
 Armistead v. Brooke, 570 
 Armstrong v. Armstrong, 325 
 — . v. Kattenborn, 581 
 
 — v. Lewis, 325 
 
 — v. Stokes, 226, 229 
 
 — v. Toler, 319, 322 
 
 Arnold v. Arnold, 392, 417, 420, 472 
 
 — v. Georgia B. & B. Co., 397 
 
 — v. Mayor of Poole, 131, 137 
 
 — v. Richmond Iron Works, 406 
 Arnot v. Pittston and Elmira Coal Co., 
 
 309, 320 
 Arnot v. Woodburn, 215 
 Arthur v. Arthur, 3tiS 
 
 — Griswold, 503 
 Arundel's case. 85 
 Ashburner v. Parrish, 286. 
 Ashbury Ry. Carriage Co. v. Riche, 92, 
 
 94, 96, 98, 111, 114. 436 
 Ash by v. Smith, 251 
 Ashcraft v. Alien, 371 
 
 — v. De Armond, 406 
 Ashley's case, 509 
 Ashurst's Appeal, 252 
 Ashworth v. Outram, 63 
 
 Asiatic Banking Corporation, Ex parte, 
 
 184, 208 
 Aspden v. Seddon, 219 
 Atcheson v. Alallon, 310 
 Athenaaum Life Assurance Soc. v. 
 
 Pooley. 209 
 Atherfoid v. Beard, 276 
 Atkinson v. Denby, 331, 522 
 
 — v. Railroad Co., 97 
 
 — v. Ritchie, B40, 356 
 Atlee v. Backhouse, 521 
 Attenborough v. St. Katharine's Dock 
 
 Co. 513 
 .Attorney-General v. G. E. Ry. Co. ,96 , 
 v. Hay, .468, 
 
 — v. Sitwell, 452 . 
 
 Attorneys and Solicitors' Act, Re, 296 
 
 Attwood v. Small, 483, 487, 499. 
 
 Audenreid's Appeal, 526, 536 
 
 Auditor v. Ballard, 180 
 
 Aulick v. Wallace, 434 
 
 Aurora, etc., Soc. v. Paddock, 106 
 
 Austin v. Guardians of Bethnal Green, 
 
 181, 138 
 Austin v. G. W. By. Co., 389 
 
 — v. Markbam, 248 '*■ ■ 
 Australian Royal Mail, etc., Co. v. 
 
 Marzetti, 135 
 
 Austria, Emperor of, v. Day and Kos- 
 suth, 275 
 
 Averill v. Hedge, 9 
 
 Avery v. Langford, 314 
 
 — a. Vansickle, 69 
 Ayer v. Warren, 62 
 
 Ayers v. South Australian Banking 
 
 Co., 45 
 Ayerst v. Jenkins, 268, 269, 320, 329 
 Ayles v. Gox, 474 
 Aylesford, Earl of o. Morris, 548, 549, 
 
 550,552,553,554,555,556 
 Ay res v. Railroad Co., 164' 
 Azemar v. Cassella, 422, 448, 465 
 
 Babbett v. Young, 225 * 
 
 Babeock v. Lawson, 513 
 
 — v. Trice, 464, 465 
 
 — u . Wilson, 160 
 Backus v. Byron, 295, 296 
 Bacon v. Bronson, 482, 484 
 
 — v. Cobb, 356 
 Badger v. Phinney, 42 
 
 — v. Williams, 290 
 Badlam v. Tucker, 378 
 Baehr v. Wolff 290, 332 
 Bagley v. Peddie, 448 
 Bagnall v. Carlton, 481 
 
 Bagshaw v. East Union Ry. Co., 101, 
 
 113 
 Bagshaw v. Seymour, 505 
 Bagueley v. Hawley, 415 
 Baham v'. Bach, 493 
 Bahia & San Francisco By. Co., Be, 209 
 Bailey v. Adams, 162 
 
 — u. Austrian, 160 
 
 — v. Bamberger, 42 
 
 — v. Harris, 263 
 
 — v. Ogden, 145 
 
 — v. Piper, 475 
 
 — v. Smock, 488 
 
 — v. Stephens, 222 
 
 — v. Sweeting, 575 
 Baily's case, 9 
 
 Baily v. De Crespigny, 353, 355, 360 
 Bain v. Brown, 253 
 
 — v. Eothergill,424' 
 Bainbrid,ge v. Dowhie, 227 
 
TABLE OF CASES. 
 
 XXIX 
 
 Bainbridge v. Flrmstone, 158 
 Baines v. Woodfall, 24 
 Baird's case, 93 
 Baker v. Baker, 493 
 
 — v. Bent, 551 
 
 — v. Bradley, 534 
 
 — v. Briggs, 251 
 
 — i>. Cartwright, 481 
 
 — v. Cincinnati, 522 
 
 — v. Cooper, 272 
 
 — v. Fari-is, 290 
 
 — v. Humphrey, 252 
 
 — v. Johnson Co., 21 
 * — v. Jordan, 255 
 
 — v. Lever, 516 
 
 — v. Loader, 535 
 
 — v. Massey, 395 
 
 — v. Monk, 540, 558 
 
 — v. Morton, 521 
 
 — v. Read, 533 
 
 — v. Spencer, 500 
 
 — v. Stonebraker's Adm'rs., 574 
 
 — v. Whiting, 252 
 Baldwin v. Kerlin, 453 
 
 — v. Liverpool & G. W. S. S. Co., 
 522 
 
 Baldwin v. Parker, 526 
 Balfour v. Ernest, 109, 110, 213 
 Ball v. Stone, 450, 453 
 Baltzen v. Nicolay, 233 
 Banchor v. Mansel, 320 
 Bancroft v. Dumas, 260 
 Bane v. Detrick, 521 
 Banet v. Railroad Co., 93 
 .Bank v. Archer, 97 
 
 — v. Balliet, 207 
 
 — v. Ballou, 572 
 
 — u. Bangs, 175 
 
 — v. Beafe, 507 
 
 — v. Bellis, 59 
 
 — v. Boston, 358 
 
 — v. Brown, 516 
 
 — v. Brownell, 469 
 
 — v. Burchard, 97 
 
 — v. Burt, 356 
 
 — v. Carey, 573 
 
 — v. Cooper, 470 
 
 — v. Coster's Ex'rs., 186 
 
 — v. Curry, 403 
 
 — v. Davis, 133 
 
 — v. Dearing, 97 
 
 — v. Dickerson, 250 
 
 — v. Bltinge, 394 
 
 — v. Farmers* L. & T. Co., 252 
 
 — v. Garlinghouse, 97 
 
 — v. Geary, 166,396 
 
 — v. Globe Works, llS 
 
 — v. Grand Lodge, 198' 
 
 — v. Gregg, 503 . , , 
 
 — v. Hall, 21 
 
 — v. Hamilton, 482 
 
 Bank v. Harrison, 97 
 
 — v. Hart, 175 
 
 — v. Hastings, 289 
 
 — u. Hatch, 251 
 
 — v. Hobbs, 97 
 
 — v. Hooper, 212 
 
 — v. Hornberger, 531 
 
 — v. Insurance Co., 395 
 
 — -i7. Jacobs, 97, 115 
 
 — v. Joy, 22G 
 
 — v. King, 313, 318 
 
 — v. Lien-man, 402 
 
 — v. Livingston, 214 
 
 — u. Lucas, 251 
 
 — v. Lynde, 186 
 
 — v. Mallett, 162 
 
 — v. Matthews, 97 
 
 — v. McCoy, 82 
 
 — u. Monteath, 226 
 
 — v. Moore, 82, 97 
 
 — v. Morton, 84 
 
 — v. Muml'ord, 202 
 
 — v. Neale, 403 
 
 — v. Nolan, 97 
 
 — v. Owens, 97, 261 
 
 — v. Owston, 87 
 
 — v. Page, 251 
 
 — v. Plimpton, 228 
 
 — v. Pratt, 97 
 
 — v. Railroad Co., 132 
 
 — v. Rice, 186, 197 
 
 — v. Richards, 186 
 
 — v. Sherwood, 97 
 
 — v. Smith,.402 
 
 — v. Sprague, 310 
 
 — v. Stegall, 260 
 
 — v. Stein, 225 
 
 — v. Swayne, 97 
 
 — v. Taylor, 69 
 
 — v. Union K. & T. Co., 221 
 
 — v. U. S. Pottery Co., 110 
 
 — v. Vanderhorst, 236 
 
 — v. Waggoner, 97 
 
 — v. Watkins, 522 
 
 — v. Wentworth, 403 
 
 — v. Whitman, 251 
 
 — v. Woodward, 439 
 
 — o. Young, 251 
 
 Bank of Augusta v. Earle, 92 
 Bank of Australasia v. Breillat, 93, 318 : 
 Bank of Columbia v. Patterson, 133' 
 Bank of England v. Anderson, 261 
 Bank of Hindustan v. Alison, 426 
 Bank of Ireland v. Evans' Charities, 
 
 118, 132 
 Bank of United States v. Daniel, 395, 
 
 398 
 Bank of United States v. Owens, 97, 
 
 261 
 Banking Ass'n. •». White Lead Co., 115 
 Banks v. Crossland, 578 
 
XXX 
 
 TABLE OF CASES. 
 
 Banks v. Poitiaux, 97 
 Banner v. Johnston, 192 
 Bannorman v. White, 423, 466, 476 
 Barclay, Ex parte, 147 
 Barden v. Keverberg, 61 
 Barfield v. Price, 415 
 Bariokman v. Kuykendall, 579 
 Barker v. Barker, 296, 303 
 
 — v, Bradley, 198, 440 
 
 — v. Buoklin, 198 
 
 — v. Cox, 474 
 
 — v. Dinsmore, 409, 514 
 
 — ii. Hodgson, 340; 358 
 
 — v. McClure, 251 
 
 — v. Parker, 329 
 Barkworth v. Tonng, 373, 582, 583 
 Barlow v. Myers, 198 
 
 Barnard v. Backhouse, 277 
 
 — v. Campbell, 513 
 
 — v. Lee, 443 
 Barnes v. Barnes, 526 
 
 — v. Brown, 332 
 
 — e. Perrine, 160, 182 
 Barnett, Ex parte, 409 
 Barney v. Nowoomb, 186 
 Barrett ii. Hartley, 540 
 
 — v. Koell, 507 
 Barron v. Vnndvert, 161 
 Barrow v. Ker, 21 
 
 — v. Ilichardson, 220 
 Barry v. Coombe, 146 
 
 — v. McCroskey, 484, 500 
 
 — v. Merchants' Exchange Co., 97, 
 . 99, 100, 115. 
 
 Barry v. Page, 226, 228 
 
 — v. Ransom, 143 
 Bartholomew v. Jackson, 29 ,* 
 
 — n. Leech, 252 ^ 
 Bartlett v. Blaine, 247 ': 
 
 — v. Holbrook, 159 
 
 — v. Tucker, 232, 233 
 
 — v. Wells, 56 
 
 — v. Wyman, 161 
 Barton v. Kane, 419 
 
 — v. Muir, 259 
 
 Barwick v. English Joint Stock Bank, 
 
 87, 483, 502 
 Baskcomb v. Beckwith, 476 
 Bassett v. Hughes, 198 
 Batchelder v. Sargent, 69 
 Bate v. Hooper, 399 
 Bateman v. Mayor of Ashton-undef- 
 
 Lyne, 104 
 
 — v. Mid- Wales liy. Co., 117 
 
 — v. Pinder, 572 
 
 — v. Countess of Ross, 62 
 Bates, Ex parte, 57 
 
 — v. Ball, 82 
 
 — v. Moore, 144 
 .Bateson v. Gosling, 251 
 
 Bath, Earl of, and Montague's case, 560 
 
 Batson v. Donovan, 469 
 
 — v. Murrell, 571 
 
 — v. Newman, 265 
 Battersbee v. Parrington, 583 
 Batturs •». Sellers, 146 
 Batty v. Chester, 269 
 
 — o. Snook, 446 
 Bauer v. Roth, 401 
 Baxendale v. Seale, 417 
 Baxter v. Earl of Portsmouth, 76 
 Bayard v. Lathv, 186 
 
 — v. Mo Lane, 296 
 
 Bayler v. Commonwealth, 168, 302 
 Bayley v. Manchester, etc., Ry. Co., 87, 
 
 386 
 Baylies v. Pettyplace, 282 
 Baylis v. Dineley, 36 
 Bayliss v. Williams, 527, 535 
 Beach v. Bank, 139 
 
 — v. Bemis, 482 
 Beachey v. Brown, 342, 481 
 Beadles v. Bless, 265 
 
 Beal v. Brown, 578 
 Beall v. Mann, 524 
 
 — v. McGbee, 495 
 Beals o. See, 82 
 
 Bean v. Amsink, 247, 331 
 
 — v. Brookmire, 247, 331 
 
 — v. Morgan, 62 
 Beanland v. Bradley, 534 
 Beard v. Dennis, 314 
 
 — o. Webb, 62 
 Beaslev v, Webster, 198 
 Beattie v. Lord Ebury, 233, 495 
 Beauchamp, Earl of v. Winn, 384 
 Beaumont v Dukes, 498 
 
 — v. Reeve, 268 
 Beavan v. M'Donnell, 81 
 Bechervaise v. Lewis, 251 
 Beck's case, 23 
 
 Beck v. Blue, 446 
 
 Beckham v. Drake, 226, 227, 228 
 
 Beckwith v. Bank, 207 
 
 — v. Prisbie, 522 
 
 — v. Talbot, 146 
 Bedford «. Bagshaw, 505 
 
 Bedford, Duke of v. Trustees of Brit- 
 ish Museum, 224 
 Beebe v. Johnson, 354 
 
 — v. Knapp, 482 
 
 — ii. Insurance Co., 468 
 Beeler v. Young, 50, 53 
 
 Beer v. London and Paris Hotel Co., 
 
 140, 145 
 Beers ii. Robinson, 198 
 Beeston u. Beeston, 329 
 Begbie v. Phosphate Sewage Co., 328 
 Behler ■». Weyburn, 70 
 Behn v. Burness, 462 
 Behrens v, McKenzie, 82 
 Belden v. Munger, 292 
 
TABLE OF CASES. 
 
 "Belknap v. Gleason, 570 
 Sell v. Bell, 254 
 
 — v. Chapman, 283 
 
 — v. Morrison, 572 
 
 — v. Offutt, 24 
 
 — n. Reid, 281 
 
 — v. Thompson, 473 
 Bellairs v. Bellairs, 308 
 Bellamy v. Sabine, 534 
 Bellows v. Russell, 310 
 Belmont v. "Railroad Co., 107 
 Belshaw v. Bosh, 410 
 
 Belt v. Ferguson, 255 
 Beman v. Rufford, 101 
 Bender ». Fromberger, 436 
 Benedict v. Lynch, 444 
 Bennett v. Jndson. 482, 503 
 
 — v. Robinson, 308 
 Benslev v. Bignold, 200, 344 
 Bent v. Wakefield, &c, Bank, 161 
 Bentley v. Mackay, 392, 453, 456, 562 
 Benton v. Pratt, 188 
 
 Benwell v. Inns, 315 
 Benyon v. Fitcb. 551 
 
 — v. Nettlefold, 268 
 Berdoe v. Dawson, 562 
 Bergen v. Udall, 561, 562 
 Berger v. Ebey, 453 
 Berkly v. Cannon, 78 
 Berkmeyer v. Kellerman, 625, 534 
 Berrien v. McLane, 296, 339, 531 
 Berry v. Doremus, 144 
 
 — v. Graddy, 578 
 
 — v. Henderson, 344 
 Besant, Re, 303, 304 
 
 — v. Wood, 270, 275 
 Besse v. Dyer, 175 
 Best v. Stow, 448 
 Bestoru. Wathen, 288 
 Beswick v. Swindells, 376, 378 
 Settle v. Wilson, 270 
 
 Betts v. Burch, 448 
 
 — v. Gunn, 395 
 Beverly's case, 76, 78 
 Beverly v. Lincoln Gas Co., 135 
 Beymer v. Bonsall, 229 
 Beynon v. Cook, 548, 503, 555 
 Bickell v. Sheets, 320 
 Bickerton v. Burrell, 230, 231, 439 
 Bickford v. Cooper, 435 
 
 Biffin v. Bignell, 521 
 Bigelow v. Benedict, 277 
 Biggs v. Barry, 490 
 
 — i). Fisk, 38 
 
 — v. Harris, 412 
 Bigland v. Skelton, 371 
 Bilberry v. Branch, 283 
 Billage'v. Southee, 527, 536 
 Billings v. O'Brien, 289 
 
 IBillingsley v. Dempelwolf, 142 
 JBindley v. Mulloney, 273 
 
 Bingham v. Bingham, 395, 427 
 
 — o. Wentworth, 250 
 Bird v. Breedlove, 286 
 Bird's tr., 434 
 Birdsong v. Birdsong, 78 
 Birkmyr v. Uarnell, 143, 145 
 Birmingham Banking Co., Ex parte, 
 
 106 
 Birnie v. Main, 570 
 Biscoe v. Kennedy, 71 
 Bish v Johnson, 93 
 Bishop v. Busse 164 
 
 — v. Honey, 320 
 Bissell v. Jeffersonville, 94 
 
 — v. Lewis, 186 
 
 — v. Railroad Co., 115 
 Bissing v. Britton, 143 
 Bivins v. Jarnigan, 269, 525 
 Bixby v. Moore, 28, 318 
 Black v. Canal Co., 93, 101 
 
 — v. Cord, 168 
 
 — v. Woodrow, 372 
 Blackburn v Smith, 512 
 Blackford v. Preston, 289 
 Blackie v. Clark, 454, 525, 528, 536 
 Blacklock v. Uobie, 248 
 Blackwood v. London Chartered Bank 
 
 of Australia, 387 
 Blades v. Free, 20, 236 
 Blair v. Insurance Co., 250 
 Blair T. L. and Land Co. v. "Walker, 
 
 144 
 Blake v. Niles, 378 
 
 — v. Peck, 166 
 
 — v. Railroad Co., 252 
 Blakeley v. Benneke, 234 
 Blakeney v. Goode, 144 
 Blanchard v. Fearing, 446 
 Blaney v. Hoke, 24 
 Blasdell v. Fowle, 248 
 Blattmaclier v. Saal, 233 
 Bleakley v. White, 410 
 Blight v. Ashley,- 24 
 Bliss v. Anderson, 108 
 
 — v. Matteson, 247 
 Blodgett ii. Hobert, 448 
 Blood v. Enos. 372 
 Bloodgood v. Bruen, 572 
 Bloom v. Richards, 260 
 Bloomer v. Spittle, 416, 457, 476 
 Blount v. Harvey, 222 
 
 — - u. Robeson, 252 
 Bloxam v. Metrop. Ry. Co., 108, 201, 
 
 300 
 Blumenberg v. Adams, 62 
 Bly v. Bank, 324 - 
 Blyth & Co.'s case, 587 
 Board of Education v. Greensbaum, 133 
 Boardman v. Brown, 296 
 
 — ■». Keeler, 378 
 
 — v. Spooner, 146, 421 
 
xxxu 
 
 TABLE OF CASES: 
 
 Boast v. Firth, 367, 369 
 
 Bobbett v. Pinkett, 212 
 
 Bodine v. Eileen, 70 
 
 Bohannon v. Pace, 578 
 
 Boies v. Vincent, 160 • 
 
 Boit v. Maybin, 19 
 
 Bold v. Hutchinson, 456 
 
 Bolingbroke v. Swindon Local Board, 
 
 87, '386 
 Bolton, Duke of, ». Williams, 66, 74 
 Bomier v. Caldwell, 443 
 Bonar v. MaeDonald, 250 
 Bond v Conway, 59 
 Bond, Heirs of, v. Smith, 571 
 Bone v. Ekless, 330 
 Boney v. Hollingsworth, 535 
 Bonnewell v. Jenkins, 24 
 .Boody v. McKenny, 42 
 Bool v. Mix, 38 
 Boone v. Chiles. 296, 388 
 Booth v. Bank of England, 261 
 
 — v. Eighmie, 142 
 
 — v. Spuyten Duyvil E. M. Co., 356 
 Boothby v. Boothbv, 551 
 
 — v. Scales, 421 
 Borell v. Dann, 543 
 Borrekins v. Bevan, 465. 
 
 Borries v. Imperial Ottoman Bk., 228 
 
 Bosanquet v. Wray, 600 
 
 Bostoek v. N. Staffordshire By. Co., 95, 
 
 ■ 105 
 
 Boston Hat Manufactory v. Messinger, 
 
 250 
 Boston Ice Co. v. Potter, 408, 409, 458 
 Boston Water Power Co. v. Gray, 393 
 Bostwick v. Railroad Co., 30 
 Bottomly v. Goldsmith, 265 
 Boulton v. Jones, 408, 457 
 Boussmaker, Ex parte, 282 
 Bowen v. Buck, 291 
 Bower v. Cooper, 219 
 Bowers v. Bowers, 289 
 Bowes v. Heaps, 551 
 Bowling v. Flood, 251 
 Bowman v. Carithers, 499 
 
 — v. Cunningham, 439 
 
 — v. Harding, 513 
 
 — «. Budge, 425, 430 
 Bowser v. Bliss, 313 
 Boyce v. Edwards, 186 
 
 — «. McCullough, 439 
 
 — v. Tabb, 275, 340 
 Boyd v. Boyd, 524 
 
 — v. De la Montagnie, 525, 561 
 
 — v. Freize,.166 
 
 — v. Hawkins, 563 
 
 — v. Kennedy, 116 
 Boy.den *. Boyden, 42 ! ■ \ 
 Boynton v. Hubbard, 306 
 
 Boyse v. Bossborough, 382, 524, 526 
 Bozeman v. Browning, 41, 42 
 
 Bracewell v. Williams, 167 
 ■ Brackett v. Hoyt, 260 : 
 Bradbury v. White, 438, 448 
 Bradford v. Bank, 448 
 
 — v. Jenkins, 275, 340 
 
 — v. Bomney, 439 
 
 — v. Williams, 376 
 Bradley v. Ballard, 97 
 
 — v. Sadler, 581 
 Bradshaw v. Bradshaw, 248 
 
 — v. Lane. & Yorks. By. Co., 17& 
 
 — v. Yates, 515, 534 
 Brainard v. Arnold, '453 
 Bramah v. Eoberts, 116 
 Brandao v. Barnett, 212 
 Brandon v. Nesbitt, 283 
 Brantley v. Thomas, 464 
 Brassell v. McLemore, 445 
 Bray v. Kettell, 226 
 Braysbaw v. Eaton, 50 
 Breck v. Blanchard, 521 
 Breed v. Hillhouse. 166 
 
 — *. Judd, 42 
 Breslin v. Brown, 310 
 Brett, Ex parte-, 490 
 
 — v. Bevridge,479 ,\ 
 Brewer ■». Boston Theater Co., 108 
 
 — v. Marshall, 222 
 
 Briek Presb. Churchy. New York, 340- 
 
 355 
 Bricker v. Brieker, 436 
 Bridge Co. u. Frankfort, 133 
 Bridgman v. Green, 535, 559 
 Briggs, Ex parte, 508 
 
 — 1). Boyd, 522, 
 
 — v. Ewert, 402 
 
 — v. Partridge, 226, 227 
 Bright v. Legerton, 516 
 
 — v. Taylor, 371 . 
 Brightman v. Hicks, 584 
 Brindle v. Hcllvuine, 205 
 Brisbane v. Adams, 310 
 
 — v. Boyd, 23 
 Briscoe v. Ashby, 388 
 Bristow v. Sequeville, 286 
 
 British and American Telegraph Co.». 
 
 Colson, 15 
 British Linen Co. v. Drummond, 573 
 British Waggon Co. v. Lea, 409 
 Britton v. Bishop, 215 
 Broadwater v. Darne, 82 
 Broadwell v. Getman, 144 
 Brook v. Hidy, 443 ■■•' 
 Brodrick v. Scale\ 147 
 Brogden v. Metropolitan Bw'y Co., 2 P 
 
 24,28 -.. ■ ; 
 
 Brokaw v. Eailroad Co., 87. 
 Bromley v. Smith, 551, 552,656 
 Bronson v. Coffin,, 219 . ' 
 Brook v. Brook, 257 
 Brookman's trust, 308 
 
TABLE Or OASES. 
 
 XXX11L 
 
 Brooks v. Berryhi-11, 521 
 
 — o. Curtis, 581 
 
 — v. Martin, 244, 532 
 Brotherhood's case, 112 
 Brothers v. Brothers, 252 
 Broughton v. Hutt, 395, 428 
 
 — v. Manchester "Waterworks Co., 
 115 
 
 Brown v. Kennedy, 456, 535 
 
 — v. Adams, 143 
 
 — v. Austin, 227 
 
 — v. Bank, 97, 226 
 
 — v. Bel), 580 
 
 — v. Beauchamp, 295, 296 
 
 — v. Bowen, 581 
 
 — v. Brine, 292 
 
 — v. Brown, 143 
 
 — v. Bulklny, 526 
 
 — v. Byers, 116 
 
 — v. C. C. & 11. Gravel Eoad Co., 
 394 
 
 Brown v. Delano, 340 
 
 — v. Dillehanty, 378 
 
 — v. Foster, 26 
 
 — v. Godfrey, 162 
 
 — v. Jodrell, 78 
 
 — v. Kinsey, 268, 269 
 
 — v. Lamphear, 416 
 
 — v. Mayor of London, 355, 378 
 
 — v. McCune, 55 
 
 — v. O'Brien, 198 
 
 — v. Parker, 226, 574 
 
 — v. Prophit 162 
 
 — v. Bail road Co., 24, 30 
 
 — v. Rico, 8 
 
 — v. Royal Insurance Co., 357, 374 
 
 — v. Telegraph Co., 229 
 
 — v. Winnissimmet Co., 97 
 Browning v. Wright, 436, 442 
 Brua's Appeal, 277 
 
 Bruce v. Lee, 248 
 
 — v. Smith, 160 
 Brumby v. Smith, 364 
 Brunei - v. Wheaton, 21 
 Brunswick v. Dunning, 85 
 Brunton's claim, 209- 
 Bryan (Doe d.) v. Bancks, 36 
 Bryan v. Reynolds, 287 
 
 — o. Spruill, 518 
 Bryant v. Booze, 18 
 
 — v. Goodnow, 182 
 
 — v. Isburgh, 421 
 
 — v. Wells, 227 
 Bryce v. Insurance Co., 453 
 Bubb v. Yelverton, 345 
 Buchanan v. Curry, 282 
 Buck v. Albee, S29 
 
 Buck v. Bank, 290 
 
 _ v. Pickwell, 576 
 Buckley ■». Bank, 212 
 Buckmaster v. Consumer's Ice Co., 25 
 
 Buckner v. Street, 275 
 Buel v. Miller, 439 
 Buell v. Buckingham, 252 
 Buerger v. Boyd, 358 
 Buffalow v. Buffalow, 535, 540, 561 
 Buford v. Speed, 283 
 Buford's Heirs v. McKee, 168 
 Bulger v. Roche, 573 
 Bulkley v. Wilfnrd, 254, 565 
 Bullock v. Adams' Ex'r., 445 
 Bult v. Morrel, 116 
 Bnmpa v. Taggart, 587 
 Buncombe T\ Co. v. McCarson, 13S 
 Bunse v. Agee, 453 
 Burbanku. Pillsbury, 219, 220 
 Burchell v. Clark, 435 
 
 — v. Marsh, 393 
 Burge v. Burge, 195 
 Burgess v. Eve, 251 
 Burghart v. Hall, 51 
 Burgin'e. Burgin, 386 
 Burke v. Allen, 78 
 
 — v. Anilerson, 454 
 
 — v. Railway Co., 30 
 Burkholder's Ex'r. v. Plank, 16& 
 Burkinshaw v. IS icholls, 515 
 Burley v. Russell, 55 
 
 Burn -«. Carvalho, 204 
 Burnard v. Haggis, 55 
 Burnes v. -Simpson, 129 
 Burnetts. Hawpe's Ex'r., 68, 69 
 Burr v. Beers, 198 
 
 — v. Boyer, 251 
 
 — v. Smale, 147 
 Burrell, Ex parte, 247, 496 
 Burritt v. Insurance Co., 468 
 Burrowes v. Lock, 484 
 Burton o. Piggott, 203 
 
 — v. Sturgeon, 63 
 Busby v. Littlefleld, 448 
 Bush v. Wick, 40 
 
 Bute, Marquis of, v. Thompson, 364 
 Butler v. Butler, 255, 256 
 
 — v. Cumpston, 69 
 
 — v. Haskell,' 563 
 
 — v. Lee, 580 
 
 — v. Watkins, 87 
 Butrick v. Holden, 371 
 Butters v. Haughwout, 513 
 Buxton v. Hamblen, 262 
 Bwlch-y-Plwm Lead Mining Co. Vt 
 
 Baynes, 509 
 Byar's v. Doores' Adm'r., 232 
 Byers v. Chapin, 488 
 Byrd v. Hughes, 246 
 
 — v. Wells, 571 
 Byrne v. Van Tienhoven, 10 
 
 Caballero v. Henty, 477 
 Cabot v. Christie, 482, 499 
 
xxxiv 
 
 TABLE OM CASES. 
 
 Cadwallader v. West, 526, 536, 640, 561 
 ■CabiH v. Bisrelow, 578 
 Cahoon v. Morgan, 206 
 Cain, v. State, 378 
 Caldocott, Ex p:irte, 291, 328 
 €alder v. Dobell, T2i, 225 
 Caldwell's case, 378 
 Caldwell v. Harding, 329 
 
 — ii. Steamboat Co., 87 
 Calhoun v. < alhoiui, 2T5 
 Callcinsi). Chandler, 166 
 
 — v. t'alk. l±o 
 Call i). Calef, 303 
 Callaghah v. Hallett, 161 
 Callahan ■«. Donnolly, 313 
 Callisher v. Bisehoffsheim, 167 
 Cal. S. N. Co. v. Weight, 313 
 Calverly v. Williams, 415 
 Calvo v. Davies, 198, 251 
 Cambioso v. Maffitt, 285 
 Cambridge, Mayor of, v. Dennis, 250 
 Camp v. Barker, 371 
 Campanari v. Woodbum, 20 
 Campau v. Van Dyke, 516 
 Campbell's case, 109, 112 
 Campbell, Ex parte, 426 
 Campbell v. Dearborn, 446 
 
 — v. Fleming, 508 
 
 — v. French, 460 
 
 — o. Insurance Co., 467 
 — ■ v. Richardson, 265 
 
 — v. Stakes, 55 
 
 — v. Smith, 198 
 Canada v. Canada, 372 
 
 Canal & Dock Co. v. Russell, 434 
 Canedy v. Murcy, 395, 453 
 Canham v. Barry, 303, 354, 472 
 Cannam v. Farmer, 59, 70 
 Cannan v. Bryce, 319 
 Cannon v. Alsbury, 40 
 
 — v. Kreipo, 189 
 Capper, iix parte, 448 
 Capuro v. Insurance Co., 518 
 Cargill v. Bower, 503 
 
 — v. Corby, 94 
 Carhart's Appeal, 169 
 
 Carington, Lord, v. Wycombe Ry. Co., 
 
 95 
 Carleton v. Whitcber, 289/318 
 
 — o. Woods, 318 
 Carmarthen, Mayor of, v. Lewis, 139 
 Carmagy v. Woodcock, 434 
 Carpenter v. Bank, 212 
 
 — v. Carpenter, 42, 55 
 
 — v. Snolling, 587 
 ■Carr v. Carr, 446 
 
 — v. Doolev, 143 
 
 — v. DuvaT, 13 
 
 — v. Jackson. 227, 235 
 Carrington v. Roots, 576 
 Carris v. Carris, 493 
 
 Carrol v. Blencow, 160 
 
 — v. Forsyth, 572 
 Carrothers o. Russell, 289 
 Carson v. Murray, 269, 270 
 Carters. Brown, 580 
 
 — v. Carter, ;i70, 393 
 
 — v. Insurance Co., 202 
 
 — v. Howe Machine Co., 87 
 
 — v. McLaren, 385 
 
 — v. Walker, 421 
 Cartwright v. Cartwright, 273 
 
 _ v. Hateley, 412 
 Cary v. White, 106 
 Casborne v. Bursham, 531 
 Case v. Cushman, 572 
 
 — v. Gerrish, 247 
 Casey v. Casey, 532 
 Casbman v. Henry, 198 
 Cassell v. Dows, 186 
 Cassiday v. McKenzic, 236 
 Castle v. Wilkinson, 474 
 Caihcart v. Robinson, 542 
 Catling v. King, 145 
 Caton v. Caton, 581 
 Caton v. Stewart, 286 
 Catt v. Tourle, 313, 315 
 Catts v. Phalen, 329 
 Caudell v. Shaw, 62 
 
 Caul i'. Gibson, 182 
 
 Caulkins v. Fry, 78, 82 
 
 Cavendish v. Geaves, 207 
 
 Cecil v. Spurger, 482 
 
 Center v. McQuesten, 143 
 
 Central Ry. Co. of Venezuela v. Kisch, 
 
 480, 487, 517 
 Central Salt Co. v. Guthrie, 309 
 Cesar v, Kountz, 479 
 Chadwick v. Knox, 286 
 Chaires v. Brady, 539 
 Challis' case, 418 
 Chamberlain v. Williamson, 370 
 Chambers v. Livermore, 448 
 
 — v. Manchester & Milford Ry. 
 Co., 104, 260 
 
 Champion v. Rigby, 563 
 
 Chance v. Board of Commissioners, 
 
 512 
 Chandelor v. Lopus, 482 
 Chandler, v. Coe, 5:25, 226, 227 
 
 — v. Fulton, 390 
 
 — v. Johnson,. 290, 818 
 
 — v. Holiingsworth, 255, 256 
 
 — v. Sanger, 522 
 
 — v. Simmons, 42 
 Chanter v. Hopkins, 465 
 
 — v. Leese, 199 
 Chapin v. Lapham. 143 
 
 — v. Longworth, 412 
 
 Chapleo v. Brunswick Benefit B'ld'g. 
 
 Soc , 502 
 Chapman a. Cole, 407 
 
TABLE OF CASES. 
 
 XXXV 
 
 •Chapman v. Gray, 269, 270 
 
 — v. Rose, 402 
 Chappel v. Brock way, 313 
 Chappelle v. Olney, 59 
 Chappie v. Cooper, 52 
 Cbarlesworth v. Holt, 272 
 Charter v. Charter, 459 
 
 — v. Trevelyan,252, 510, 516 
 Chase v. Bradley, 435 
 
 — u. Dwinal, 522 
 
 — v. Insurance Co., 468 
 Chasemore v. Turner, 572 
 Cbavasse, Ex parte, 284 
 Cheale a. Ken ward, 159 
 Cheever v. Smith, 229 
 
 — v. Wilson, 69 
 
 Chemiu de fer du Dauphine 1 v. Clet, 364 
 Cheney v. Cook, 8 
 
 — v. Duke, b20 
 Cherokee Iron Co. v. Jones, 93 
 Cherry v. Colonial Bank of Austral- 
 asia, 232 
 
 Cherry v. Heming, 144, 146 
 
 Cheshire v. Payne, 255, 256 
 
 Chester Glass Co. v. Dewey, 97 
 
 Chesterfield v. Janssen, 529, 547, 549 
 
 Chew v. Burnet, 388 
 
 Chicago v. Solden, 392 
 
 Cuicago Dock Co. v. Kinzie, 578 
 
 Childs, Be, 70 
 
 Chin nock v. Marchioness of Ely, 24 
 
 Chickasaw Co. v. Pitcher, 251 
 -Cbilcotu. Trimble, 28 
 
 Chilton v. Bobbins, 251 
 
 Chisholm v. Montgomery, 118 
 -Cholmondeley v. Ciinton, 301 
 
 Chorley, Ex parte, 209 
 
 Christian v. Cabell, 472 
 -Christmas v. Russell, 573 
 
 Chubb v Stretch, 71 
 
 — v. Upton, 515 
 
 Church v. Imperial Gas, &a, Co., 181, 
 
 135 
 •Church v. Sterling, 252 
 Churchill v. Rogers, 448 
 Chute v. Pattee, 162 
 Citizens' Bank of Louisiana v. First 
 
 National Bank of New Orleans, 583 
 City v. Lenze, 161 
 
 City Bank, Ex parte, 116, 117, 209, 210 
 Clack v. Holland, 206 
 Claflin D.'Ostrbin, 198 
 Claggett v. Crall, 488 
 
 — v. Salmon, 251 
 Clanton v. Young, 175, 180 
 Clapp v. Lawton, 197 
 Clare*. Lamb, 397 
 -Clark, Be, 54 ' ''. 
 
 •Clark v. Boyd, 205 
 
 — v. Gamwell, 166 
 
 — v. Girdwood, 455 
 
 Clark v. Halt, '395 
 
 — v. Henry, 446 
 
 — v. Insurance Co., 468 
 
 — v. Lillis, 892 
 
 — v. Mai pas, 540 
 
 — v. Pendleton, 143, 144 
 
 — v. Russell, 166 
 
 — v. Terry, 580 
 
 — v. Valentino, 62 
 Clarke v. Cobley, 56 
 
 — v. Cuckfield Union, 136 
 
 — o. Desmoines, 110 
 — • v. Dickson, 516 
 
 — v. Dutcher, 397 
 
 — v. Poss, 277, 325 
 
 — v. Gilbert, 370 
 
 — v. Insurance Co., 260 
 
 — v. Beins, 473, 474 
 
 — v. Tappin, 440 
 
 — v. White, 247 
 Clarkson v. Creely, 162 
 
 — v. Edge, 315 
 Clay v. Bay, 324 
 Clayton v. Adams, 59 
 
 — v. Corby, 221 
 
 — v. Freet, 395,453 
 
 — v. Merrett, 236 
 Clealand v. Walker, 229 
 Clearwater v. Meredith, 371 
 Clegg v. Edir.ondson, 509 
 Clem v. Bailroad Co., 495 
 Clementson v. lilessig, 282 
 
 Cleve v. Financial Corporation, 159 
 Cleveland v. Williams, 236 
 Clifford v. Watts, 349, 350, 365 
 Clinan v. Cooke, 449 
 Clinch v. Financial Corporation, 518 
 Cline v. Guthrie, 402 
 
 — v. Hovey, 448 
 
 — v. Templeton, 167 
 Clinton v. Fly, 411 
 
 — e. Strong. 522 
 Clippenger v. Hepbaugh, 287 
 Clitherall v'. Ogilvie, 542 
 Clive v. Beaumont, 23 
 Clodfelter v. Cox, 204, 206 
 Close v. Close, 251 
 
 Clough v. L. & N. W. By. Co., 490, 
 
 501, 507, 509, 511, 518 
 Clow v. Borst, 410 
 Clowes v. Higginson, 416, 439, 449 
 Clubb v. Hutson, 291 
 Clugas v. Penaluna, 285 
 Clute v. Robinson, 206 
 Coal Co. v. Pasco, 70 
 Coale v. Merryman, 453 
 Coates *. Collins, 429 
 Cobb v. Charter, 522 
 
 — v. Cowdry, 161 
 
 — v. Hall, 578 
 
 — v. Knapp, 229 ' f 
 
XXXVI 
 
 TABLE OF CASES. 
 
 Cobbett v. Brock, 525, 561, 562 
 Cochran v. Perry, 412 
 
 — v. Rymill, 385 
 
 — ^.Stewart, 214 
 Cochrane v. "Willis, 426 
 Cockell v. Taylor, 539 
 Cocker's case, 190 
 Cocking v. Ward, 579 
 Coe v. Smith. 370 
 Coffee v. Ruffin, 539 
 Coffman v. Harrison, 232 
 Cogan v. Duffield, 456 
 Cogley v. Cushman, 42 
 Cogswell v. Bull, 108 
 Cohen, Ex parte, 147 
 Cohen, v. Insurance Co., 282 
 
 — v. 'Railroad Co., 386 
 
 — v. "Wilkinson, 100 
 
 Colborne & Slrawbridge, Ex parte, 209 
 Coldcot v. Hill, 442 
 Cole ». Gibbons, 549 
 
 — v. Gibson, 306 
 
 — v. Hawes, 436 
 
 — v. O'Neill, 255 
 
 — is. Pennoyer, 41 
 Coleman v. Bank, 227 
 
 — v. Eyre, 160 
 
 — v. F razor, 77 
 
 — v. Grubb, 392 
 
 — v. Wooley's Ex'r., 68 
 Coles v. Bowne, 420, 453 
 
 — v. Clark, 385 
 
 — v. Trecothick, 543 
 Collamer v. Day, 265 
 Collen v. "Wright, 232 
 Collier v. Brown, 542 
 Collins, Ex parte, 147 
 
 Collins v. Blantern, 246, 290, 324 
 — ■ v. Evans. 482 
 
 — v. Locke, 294, 309, 316 
 
 — v. Murrell, 318 
 
 — v. Westbury, 521 
 Collyer v. Fallon, 289 
 
 Colman v. E. C. By. Co., 99, 100, 108, 
 
 113 
 Coloma v. Eaves, 94 
 Colson v. Arnot, 212 
 Colyear v. Mulgrave, 197 
 Comes v. Lamson, 580 
 Cummins v. Scott, 145 
 Commissioners v. Aspinwall, 94 
 
 — v. Bolles, 94 
 
 — v. January, 94 
 
 — v. Perry, 182 
 Commissioners of Tippecanoe Co. v. 
 
 Railroad Co., 101 
 Commonwealth v. Aves, 337 
 
 — v. Bassford, 335 
 
 — v. Central Bridge Co., 88 
 
 — v. Gabbert's Adm'r., 250 
 
 — u. Holmes, 250 
 
 Commonwealth v. Lane, 257, 335-' 
 
 — v. Leeds, 412 
 
 — . o. Railroad Co., 88 
 
 — v. Staiiffer, 308 
 Compton v. Martin, 144 
 Comstock v. Howard, 182 
 Conant v B. P. Canal Co., 118 
 Oondit v. Blackwell, 532 
 Confederate Note Case, the, 284: 
 Congdtm v. Davey, 24 
 
 Con key v. Bond, 252 
 
 Conine v. Railroad Co., 131 
 
 Conn v. Coburn, 53 
 
 Connell v. Reed, 274 
 
 Connelly v. Levoe, 372 
 
 Conning, Ex parte, 147 
 
 Connoly v. Branstler, 70, 584 
 
 Conover v. Stilwell, 161 
 
 Conquest's case, 189 
 
 Conrad v. Dater, 465 
 
 Conway v. Cutting, 204 
 
 Conway's Ex'rs. v. Alexander, 446- 
 
 Conwell v- Clifford, 488 
 
 Cook v. Berlin "W. M. Co., 108, 253: 
 
 — v. Doggett, 579 
 
 — v. Field, 302 
 
 — v. Johnson, 313 
 
 — v. Lister, 214, 410 
 
 — v. Preston, 448 
 
 — v. Tullis, 233 
 
 — v. Walker, 456 
 Cooke v. Chilcott, 219 
 
 — v. Clayworth, 79 
 
 — v. Cocke, .293, 301 
 
 — v. Graham's Adm'r., 435 
 
 — a. Lamotte, 527, 528 
 
 — v. Murphy, 164 
 
 — v. Nathan, 496 
 
 — v. Oxley. 8 
 Cookes v. Culbertson, 570 
 Cooley v. Steele, 70 
 Coolidge v. Payson, 186 
 Coombes v. Chandler, 214 
 
 — v. Dibble, 345 
 
 Coombs v. Bristol & Exeter Ky, Co., 
 
 575 
 Coon v. Bean, 308 
 Cooper v. Evans, 470 
 
 — v. Insurance Co., 453 
 
 — v. Joel, 471 
 
 — v. McCrimmin, 182 
 
 — v. Phibbs, 382, 395, 397, 427 
 
 — v. Simmons, 48, 52, 412 
 Coothu. Jackson, 292 
 Goover v. Davenport, 233 
 Cope v. Rowlands, 260 
 
 — v. Thames Haven, &c, Co., 138- 
 Copeland v. Insurance Co., 252 
 
 — v. Manton, 206 
 Copes v. Matthews, 227 
 Copley v. GroverS. M. Co., 87 
 
TABLE OF CASES. 
 
 . XXXV11 
 
 •Coppel ». Hall, 281 
 
 •Copper Mines of England v. Pox, 135 
 Coppock v. Bower, 291, 324 
 Corain v. Paine, 570 
 Corbett v. Cochran, 142 
 Cordingley v. Cheeseborough, 473 
 Cork & Bandon By. Co. v. Uazenove, 46 
 Cork & Youghal Ry. Co., Be, 260 
 Corley u. Lord Stafford, 254, 455 
 Cornell v. Hall, 446 
 
 — v. Hay, 481 . 
 
 — v. Lovett's Ex'rs., 308 
 ■Cornelson v. Insurance Co., 180 
 Corn foot v. Fowke, 502 
 Corning v. Abbott, 262 
 
 Cory v. Gertcken, 56 
 
 — v. Patton, 586. 
 ■Coryolles v. Mossy, 179 
 
 Coster v. Mayor, 198 
 
 Costigan v. Hastier, 544 
 
 Cote,"Ex parte, 16, 391 
 
 Cottage Street Church v. Kendall, 160, 
 
 182, 598 
 Coughlin v. Knowles, 578 
 
 — v. Bailroad Co., 296 
 •Coulson v. Allison, 525 
 
 Coulter v. Bobinson, 324 
 County. Life Assce. Co., Be, 109 
 •County of Macon v. Shores, 115 
 County of Warren v. Marcy, 94 
 •Oourtenay v. Williams, 571 
 Coutts v. Acworth, 501 
 Couturier v. Hastie, 142, 425, 460 
 Coverdale v. Eastwood, 584 
 Cowan v. Baird, 470 
 
 — v. Milbourn, 242, 320, 344 
 ■Coward & Adam's Purchase, Be, 63 
 Coward v. Hughes, 398, 553 
 Cowdin v. Gottgetreu, 142 
 Cowdry v. Day, 446 
 
 Cowdrey v. Vandenburgh, 214 
 Cowie v. Stirling, 200 
 Cowles v. Mercer County, 84 
 
 — v. Morgan, 68 
 Cox v. Britt, 434 
 
 • — ■ v. Montgomery, 517 
 
 — v.'rTentice, 423, 432 
 
 — v. Bailroad Co., 251 
 Coxhead v. Mnllis, 43 
 Coyner v. Lynde, 164 
 
 "Craft's Appeal, 212 
 Craft v. McConoughy, 244, 309, 329 
 •Cragoe v. Jones, 250 
 Craig v. Dimock, 587 
 
 — o. Kittredge, 448 
 Crans v. Hunter, 166 
 
 •Cranson v. Cranson, 256 
 •Crawford v. Insurance Co., 282 
 
 — v. Bussell, 306 
 
 — v. Toogood, 445 
 _ v. Wick, 309 
 
 Crawshaw v. Boxbury, 175 
 Crayton v. Clark, 207 
 Creighton v. Pringle, 435 
 Cresinger v. Welch, 38, 42 
 Cribbins v. Mark wood, 549 
 Grim. v. Fitoh, 143 
 Cripps v. Hartnoll, 143 
 Oritcher v. Holloway, 319 
 Crocker v. Arey, 573 
 
 — v. Higgins, 198 
 
 — v. Rallruad Co., 8, 178 
 Groft v. Graham, 552 . 
 Crofton v. Davies, 434 
 Crofts v. Middleton, 259 
 Cronin v. Watkins, 218 
 
 Crook v. Corporation of Seaford, 118 
 Crooks v. Crooks, 169 
 Crookshanks v. Bose, 598 
 Crosby v. Wadsworth, 576 
 
 — v. Wood, 161 
 Cross v. Jackson, 199 
 
 — v. Truesdale, 198 
 Grossley v. Mayeock, 22 
 
 — v. Moore, 247, 331 
 
 Crouch v. Credit Poncier, 116, 209,211, 
 
 213,214 
 Crow v. Kobinson, 206 
 Orowell v. Hospital of St. Barnabas, 198 
 Crozier v. Shants, 205 
 Crump v. U. S. Mining Co., 481, 503 
 Cruteher v. Trabue, 251 
 Cudney v. Cudney, 526 
 Culbreath v. Cnlbreath, 397 
 Cullen v. Thomson's Trustees and Kerr, 
 
 504 
 Cumbers. Wane, 164 
 Cummer v. Butts, 25 
 Gumming v. Ince, 521 
 Cummings v. Arnold, 31 
 
 — v, Gann, 175, 180 
 
 — v. Little, 251 
 Cummins v. Barkalovv, 286 
 Cundy v. Lindsay, 409, 514 
 Cunningham v. Munroe, 522 
 Curran v. Curran, 580 
 Currie v. Goold, 399 
 
 — v. Misa, 151 
 Curson v. Belworthy, 558 
 Curtis v. Cane, 385 
 
 — v. Curtis, 302 
 
 — Leavitt, 97 
 
 — v. McDougal, 42 
 
 — v. Sage, 144 
 
 — v. Smith, 372 
 
 — ,o. Williamson, 229 
 Gushing v. Bice, 227 
 Cushman v. Insurance Co., 467 
 Cutler v. Walsh, 319 
 
 Cutter v. Powell, 83, 376, 422 
 Cuttss. Guild, 415 
 Outts v. Ward, 345 
 
xxxvui 
 
 TABLE OF CASES. 
 
 Da Costa v. Davis, 373 
 
 — a. Jones, 280 
 Dacre v. Gorges, 416 
 Daggett v. Johnson, 26 
 Danish, Ex parte, 147 
 Dailey v. Coken, 587 
 Dale v. Hamilton, 581 
 
 Da Lee v. Blackburn, 482, 483 
 
 Dallas v. Heard, 69 
 
 Dally v. Won ham, 533 
 
 D'Alteyrac, Ex parte, 448 
 
 Dalton v. Gib, 51 
 
 Dalton v. Midland Ky. Co., 59 
 
 Dana v. Hancock, 439 
 
 Dana v. Wentworth, 223 
 
 Daniel's tr., 434 
 
 Daniel v. Hill, 526 
 
 Daniels v. Johnson, 446 
 
 Darby's Trustees v. Boatmen's Sav. 
 
 Inst., 97 
 Darrell v. Tibbitts, 359 
 Darst v. Gale, 97 
 Dart v. Barbour, 454 
 Dashwood v. Jermyn, 584 
 Daubuz v. Morshead, 283 
 Dauglish v. Tennent, 247 
 Davenport v. Bishopp, 197 
 
 — v. Dows, 108 
 
 — v. First Cong. Soc., 163 
 
 — v. Gentry's Adm'r., 412 
 Davey v. Shannon, 144 
 David u. Park, 488 
 Davidson v. Greer, 453 
 
 — v. Little, 539, 549, 561 
 Davies v. Burns, 161 
 
 — v. Davies, 40. 43 
 
 — v. Eitton, 451, 452 
 
 — v. Insurance Co., 491 
 
 — v. Jenkins, 68 
 Davis v. Allen, 229 
 
 — v. Bank, 236 
 
 — v. Bechstein, 207 
 
 — v. Boggs, 434 
 
 — v. Building Union, 115 
 
 — v. Caldwell, 50 
 
 — ii. Calloway, 198 
 
 — v. Cilley, 393 
 
 — v. Coburn, 412 
 
 — o. Duke of Marlborough, 290, 551 
 
 — v. Garr, 201 
 
 — v. Gray, 159 
 
 — v. Heard, 484 
 
 — v. Lane, 236 > 
 
 — v. Munson, 162 
 
 — v. Parker, 474 
 
 — v. Richardson, 587 
 
 — v. School Dist. No. 2, 29 
 
 — v. Sharon, 296 
 
 — v. Thomas, 446 
 
 — v. "Wrigley, 570 
 Davoue v. Panning^ 252 
 
 Dawes v. Harness, 509 
 
 — v. Jackson, 227 
 Dawkins v. Gill, 292 
 
 — v. Sappington, 175, 180> 
 Dawson v. Dawson, 59 
 
 — v. Fitzgerald, 294 
 Day v. Caton; 29 
 
 — v. Oloe, 142 
 
 — a. Holmes, 252 
 
 — v. Insurance Co., 161 
 . — v. IS ewman, 542, 544 
 
 — v. Pool, 421, 466 
 Deacon v. Gridley, 161, 571 
 Dean v. Emerson. 314 
 
 — v. Yates, 409, 514 
 Dearborn v. Bowman, 158 
 Dearie v. Hall, 204 
 Dearmond v. Dearmond, 256 
 Deaton v. Munroe, 527, 528 
 De Beil v. Thomson, 308 
 Debenham v. Ox, 308 
 
 De Bussche v. Alt, 252, 254, 412 
 De Camp v. Hamma, 402 
 Decan v. Shipper, 409, 514 
 Deeringc. Chapman, 318 
 
 — v. Earl of Winchelsea, 251 
 De Gaillon v. L'Aigle, 61 
 
 De Groff v. Amor. L. T. Co., 97 
 
 De Hoghton v. Money, 189, 296, 299;. 
 
 300 
 Del. & H. Canal Co. v. Pennsylvania 
 
 Coal Co., 294 
 Delafield v. Parish, 524 
 Delany v. Kogers, 454 
 De La Touche's settlement, Ee, 435 
 Delaware, etc. Co. v. Cornmonwealth, 88 
 Delaware, etc., Canal Co. v. Bank, 198 
 Dellett v. Kemble, 581 
 Delrnas v. Insurance Co., 275, 284 
 Delone v. Hull, 507 
 De Longuemere v. Insurance Co., 466 
 De Mattos v. Gibson, 217 
 Deming v. State, 331 
 Dendy v. Henderson, 315 
 De Nicholls v. Saunders,, 411 
 Denn v. Wilford, 437 
 Dennett v. Atherton, 223 
 Denney v. Johnson, 284 
 Denny v. Hancock, 417 
 
 — v. Williams, 575 
 
 Dent v. Bennett, 516, 524, 525, 527,536 
 Denton v. English, 269 
 
 — v. G. N. By. Co., 174, 177, 180, 
 181, 184 
 
 Denton v. Peters, 215 
 De Peyster v. Hasbrouck, 448 
 Deposit Life Assurance Co. o. Ays- 
 cough, 509 
 Derby v. Johnson, 372 
 
 — v. Phelps, 143 
 Dermott v. Jones, 356 
 
TABLE OF CASES. 
 
 XXXIX 
 
 Beroeher v. Continental Mills, 42 
 Derry v. Duchess of Mazarine, 61 
 Deshon v. Fosdick, 21 
 
 — v. Insurance Co., 440 
 Desilver, estate of, 406 
 
 De Sobry v. De Laistre, 337 
 Devine v. Edwards, 394, 423 
 
 — v State, 378 
 Devoe v. Brandt, 490, 513 
 Devol v. McLntosb, 198 
 Devonshire's (Eari of) ease, .126 
 De Voss v. Richmond, 94 
 Dew v. Parsons, 522, 523 
 
 De Wahl v. Braune, 61 
 
 Dewees v. Miller, 265 
 
 Dewey v. Union School District, 356 
 
 Dewitt v. Brisbane, ."2-1 
 
 De Wiitz v. Hendricks, 284 
 
 Dexter v. Idall, 78 
 
 — v. Norton, 361, 362 
 Dibblee v. Sheldon, 507 
 Dick v. Leverich, 212 
 
 — v. Page, 236 
 Dickerson v. Commissioners, 162 
 Dickey v. Linscott, 367 
 Dickinson v. Burrell, 299 
 
 — v. Dodds, 20 
 
 — v. Gay, 431 
 
 — v. Valpy, 116 
 Di6kson v. Miller, 71 
 
 — v. Reuter's Telegram Co., 197 
 
 — v. Swansea Vale Ry. Co., 209 
 Diggle v. London and Blaekwall Ry. 
 
 Co., 134 
 Diggle v. Higgs, 265, 330, 345 
 Dill v. Bowen. 42 
 Dillard v. Insurance Co., 282 
 Dillinger's Appeal, 270 
 Dillon v. Allen, 260 
 
 — v. Cunningham, 72 
 Diman o. Railroad Co., 453, 454 
 Dimmock v. Hallett, 473 
 Dingeldein v. Railroad Co., 198 
 Dinn v. Blake, 393 
 Dinsmore v. Tidball, 470 
 Dinsmore Oil Co. v. Dinsmore, 252,481 
 Distilled Spirits, the, 225 
 
 Ditcham v. Worral, 4o 
 Ditson v. Ditson, 493 
 Dix v. Cobb, 206 
 Dixon, Ex parte, 228 
 
 — v. Bovill, 213 
 
 — v. Dixon, 272 
 
 — v. Olmstead, 290, 320 
 Doane v. Dunham, 464, 465 
 Dobbin v. Hubbard. 69 
 
 — v. Wright, 71 
 Dobell v. Stevens, 486, 487 
 Dodd v. Wakeman, 253 
 Dodge v. Stiles, 161 
 
 — v. Van Lear, 856 
 
 Dodge v. Woolsey, 100, 108 
 
 Doe d. Bennett v. Hale, 595 
 
 Doe d. Bryan v.. Banks, 36 
 
 Doe d. Leacli v. Micklem, 434 
 
 Doe d. Pennington v, Tanniere, 139 
 
 Doe d. Williams v. Evans, 801, 302 
 
 Doggett v. Emerson, 484, 503 
 
 Dolsou v. Hope, 262 
 
 Don v. Lippman, 573 
 
 Donaldson v. Farwell, 490, 510 
 
 Donelson v. Weakley, 498 
 
 Donovan v. Donovan, 493 
 
 Doilandu. Mulhollan, 186 
 
 Dorr v. Fisher, 421 
 
 Dorsey v. Packwood, 169 
 
 Dorwin v. Smith, 308 
 
 Doughty v. Savage, 248, 469 
 
 Douglas v. Culvnrwell, 446 
 
 Douglass v. Matting, 402 
 
 DoLigia-s Axe MTjr. Co. v. Gardner, 466- 
 
 Dounce v. Dow, 466 
 
 Dow v. Sanborn, 490 
 
 Downer v. B.ink, 388 
 
 — v. Cheeseborough, 577 
 
 — v. Thompson, 419 
 Downes v. Jennings, 255 
 Downey v. Hinchman, 160 
 Downing v. Ringer, 260 
 Downs v. Donnelly, 397 
 Dows v. Perrin, 220 
 Draughan v. Bunting, 143 
 Dressel v. Jordan, 445 
 Dresser v. Norwood, 225, 228 
 Drew v. Nunn, 2iG 
 
 Druiff v. Lord Parker, 440, 450 
 
 Drury v. Foster, 70 
 
 Drysdale's Appeal, 571 
 
 Dublin & Wicklow Ry. Co. v. Black, 46 
 
 Ducker v. Rapp, 251 
 
 Duekett v. Gover, 108 
 
 Dudgeon v. Pembroke. 321, 343 
 
 Dudley v. Kentucky High School, 108 
 
 — ■ v. Lindsey, 129 
 Duffy v. Hobson, 587 
 
 — v. Shokoy, 813 
 Dugdale v. Lovcring, 28 
 Duke v. Andrews. 24 
 
 — u. Harper, 296 
 Dumey o. Schoeffler, 308 
 Dumont v. Dufore, 320 
 
 — v. Williamson, 465 
 Duncan's Appeal, 255 
 Duncan v. Cashin, 65 
 
 — v. Niles, 232 
 
 — v. Topham, 15 
 Dundas v. Dutens, 583 
 Dung v. Parker, 233 
 Dunks v. Fuller, 508 
 Dunham v. Averill, 460 
 Dunkin v. Hodge, 290, 327 
 Dunlop v. Gregory, 313 
 
xl 
 
 TABLE OF OASES. 
 
 Dunlop v. Higgins, 15 
 Dunmore v. Alexander, 14 
 Dunn v. Chambers, 539 
 
 — v. Kecord, 296, 531 
 
 — v. St. Andrews' Church, 133 
 Dunnage v. White, 540 
 
 Dunne o. English, 253 
 
 Dunstan v. Imperial Gas Light Co., 138 
 
 Dunton v. Brown, 42 
 
 Durgin v. Dyer, 260 
 
 Durham v. Bischoff, 198 
 
 Durham, Earl of, v. Legard, 424, 474 
 
 Duton ii. Kodes, 289 
 
 Dutton e. Dutton, 62, 270 
 
 — v. Marsh, 213, 225 
 
 — v. Poole, 196 
 
 - v. Willner, 253 
 Duvergier v. Fellows, 324 
 Dwinel v. Brown, 448 
 Dyer v. Brannoek, 130 
 
 — u. Hargrave, 472, 475, 486, 487 
 
 Eadie v. Slimmon, 5ii8 
 
 Eads v. Carondelet, 24 
 
 Eagle v. Smith, 175, 180 
 
 Eagle Eire Co.'b. Lent, 38 
 
 Eagle Insurance Co., Ex parte, 109 
 
 Eaglesfleld v. Marquis of Londonderry, 
 
 3"95, 414 
 Earle v. Ohace, 525 
 
 — v. Hopwood, 297 
 
 — v. Reed, 53 
 
 — v. Rice, 440 
 Earnest v. Express Co., 469 
 
 East Anglian Ky. Co. v. E. C. By. Co., 
 
 101 
 East Lincoln v. Davenport, 93 
 East London Waterworks Co. v. Bailey, 
 
 134 
 Easter v. Bailroad Co., 219 
 
 — v. White, 143 
 
 Eastern Counties By. Co. v. Hawkes, 
 
 104, 113 
 Eastman v. Plumer, 542 
 Eastwood v. Kenyon, 113, 158 
 Eatherly v. Eatherly, 434 
 Eaton v. Eaton, 406 
 
 — v. Hill, 55 
 
 — v. Winnie, 488 
 Ebhw Vale Co., claim of, 135 
 Ecclesiastical Comm'rs. v. Merral, 138 
 Eclipse Windmill Co. v. Thorson, 228 
 Eddy v. Capron, 289 
 
 — v. Clement, 356 
 
 — v. Herrin, 521 
 
 — v. Roberts, 198 
 Edenfield v. Canady, 142 
 Edged v. McLaughlin, 265 
 jidgorton v. L'ockham, 443 
 
 — o. Woiff, 42 
 
 Edgware Highway Board ■». Harrow 
 
 Gas Co., 151, 327 
 Edmond's Appeal, 453 
 Edmunds v. Bushell, 226 
 Edwards v. Aberayron, &c, Soc, 294 
 
 — o. Baugh, 167 
 
 — v. Brown, 402 
 
 — v. Browne, 551 
 
 — v. Burt, 550, 551, 556 
 
 — v. Fairbanks, 97 
 
 — v. Fry, 581 
 
 — v. Golding, 227 
 
 — v. Meyrick, 533 
 
 — v. Roberts, 508 
 
 — v. Skirving, 324 
 
 — v. Thomas, 212 
 
 Egan v. Guardians of Kensington 
 
 Union. 594 
 Egerton'w. Earl Brownlow, 276, 277, 
 
 280, 286 
 Ehrnran v. Insurance Co., 97 
 Eiohelberger v. Morris, 250 
 Eichholz v. Bannister, 415 
 Eidelin v. Clarkson's Ex'rs., 579 
 Einstein v. Marshall, 482 
 Elbinger Actien Gesellschaft v. Claye, . 
 
 226 
 Elder ».. Elder, 448 
 Eldgredge v. Walker, 252 
 Eley ii. Positive Assurance Co., 144, 
 
 198 
 Eliason v. Henshaw, 9, 21 
 Elkins v. Edwards, 570 
 
 — v. Parkhurst, 260 
 Ellen v. Topp, 373 
 Ellicott v. Turner, 144 
 
 — v. White, 417 
 Elliot v. Inoe, 81 
 Elliott v. Gower, 69 
 Elliott v. McClelland, 296 
 
 — «. Richardson, 292 
 
 — v. Royal Exchange Assce. Co, 
 294 
 
 Elliott v. Swartwout, 522 
 Ellis v. Barker, 537, 538, 562 
 Elrod v. Meyers, 50 
 Elston v. Jasper, 406 
 Eltham v. Kingsman, 276 
 Elting v. Vandorlyn, 166 
 Elwell v. Chamberlin, 503 
 
 — v. Martin, 55 
 Ely v. Ely., 359 
 
 — ii. Ormsby, 575 
 
 — v. Stewart, 499 
 
 — v. Webster, 320 
 
 Elysville, &c, Co. v. Okisko Co., 133, 
 
 438 
 Emanuel v. Bridger, 147 
 Emerson v. White, 434 
 Emery v. Smith, 144 
 Emery's Sons v. Bank, 220 
 
TABLE OF CASES. 
 
 xli 
 
 Emma Silver Mining Co. v. Grant, 252, 
 
 481 
 Emma Silver Mining Co. v. Lewis 252 
 Emmerson's case, 425 
 Empire Transportation Co. v. Steele, 
 
 220 
 Empson's case, 405 
 England v. Davidson, 162, 175 
 
 — v. Downs, 254, 255 
 English v. Young, 265 
 English's Ex'r. v. MeNair's Adm'r., 434 
 English and Foreign Credit Co. v. 
 
 Arduin, 23 
 Enloe v. Hall, 227 
 
 Equitable Insurance Co. ■». Hearne, 454 
 Erie Rwy. Co. ads. Union L. & E. Co., 
 
 318 
 Erlanger v. New Sombrero Phosphate 
 
 Co., 526 
 Ernest v. Nicholls, 110 
 Ersldne v. Adeane, 143, 359 
 Erwin v. Myers, 473, 475 
 Esham v. Lamar, 540 
 Espey v. Lake, 534 
 Esposito v. Bowden, 281, 282, 340, 380 
 Essex v. Insurance Co., 450 
 Estabook v. Smith, 436 
 Estcourt v. Estcourt Hop Essence Co., 
 
 274 
 Etting v. Bank, 470 
 Kubanks v. Banks, 335 
 Eureka Co. v. Bailey Co., 132 
 Evans v. Bremridge, 470 
 
 — v. Carrington, 272, 482, 489 
 
 — v. Edmonds, 482, 489, 492 
 
 — v. Ellis, 526, 531 
 
 — u. Lee, 131 
 
 — v. Llewellyn, 558, 559 
 
 — ■ v. Prothero, 588 
 
 — v. Smallcombe, 112 
 ■*- v. Wain, 225 
 
 Evanturel v. Evanturel, 279 
 Evelyn v. Chichester, 46 
 Everet v. Williams, 244, 329 
 Everhardt v. Searle, 252, 253 
 Everitt v. Everitt, 529 
 Ewing v. Crouse, 444 
 
 — v. Smith, 69 
 Ewins v. Gordon, 443, 445 
 Express Co. v. Haynes, 30 
 
 — v. Moon, 30 
 
 — v. Stettaners, 30 
 Eyre v. Potter, 539 
 
 Faine v. Brown, 543 
 Fairchild v. Kailroad Co., 110 
 Fairfax v. Fairfax's Ex'r., 571 
 Faii'hurst v. Liverpool Adelphi Loan 
 
 Association. 58 
 JFairlie v. Fenton, 225 ' 
 
 Falcke v. Gray, 543 
 
 Fallis v. Insurance Co., 446 
 
 — v. Keys, 70 
 Fane' -B. Fane, 480, 485 
 FantB. Miller, 286 
 Fareira v. Gabell, 265 
 Farewell v. Coker, 442 
 Faribault v. Sater, 482 
 Farley v. Parker, 406 
 Farnara v. Brooks, 632 
 Farmer v. Farmer, 525 
 Farnsworth v. Hemmer, 252 
 Farrar v. Bessey, 60 
 
 — v. Walker, 515 
 Farrell v. Lovett, 212 
 Fan-ow v. Wilson, 173, 367 
 Fassett v. Ruark, 468 
 Faull v. Tin sman, 207 
 Faviell v. E. C. By. Co., 137 
 Favor v. Philbrick, 262, 326 
 Fawcett v. Freshwater, 162 
 Fay v. Noble, 94 
 
 — v. Oliver, 512 
 Fears v. Sykes-, 574 
 Fegley v. McDonald, 251 
 Feldman v. Gamble, 247 
 Fellowes v. Lord Gwydyr, 231, 232 
 Felthouse v. Bindley,' 9, 20 
 Feltmakers, Co. of, v. Davis, 196 
 Felton v. Dickinson, 196 
 Fenton v. Clark, 370 
 
 — v. Railroad Co., 107 
 Fenwick v. Grimes. 496 
 Feret v. Hill, 320, 489 
 Ferguson v. Carrington, 490, 507 
 
 — v. Lowery, 526 
 Fergusson v. Norman, 263 
 Ferrand v. Bischoffsheim, 228 
 Ferrell v Maxwell, 143 
 Ferris v. Adams, 289 
 
 — v. Irving, 236 
 Festerman v. Parker, 164 
 Fetrous v. Wiseman, 41 
 Field v. Moore, 40 
 
 — v. Sowle, 71 
 
 — v. Stearns, 513 
 Fife v. Clayton, 449 
 Filson's Trustees v. Himes, 289, 318 
 Financial Corporation's claim, 209 
 Finch v. Finch, 581 
 
 — v. Mansfield, 320 
 Findon v. Parker, 303 
 Finlay v. Bristol & Exeter Ry. Co., 
 
 134, 140 
 Firestone v. Firestone, 252 
 Firth v. Midland Ry. Co., 371 
 Fischer v. Kamala Naicker, 303 
 Fishi>. Cleland, 495, 535 
 Fisher's Appeal, 252 
 Fisher v. Bridges, 322 
 v. Budlong, 492 
 
stfi 
 
 TABLE 01" CASES. 
 
 Fisber v. Ellis, 201 
 
 — v. Liverpool Marine Insur&hee 
 Co., 585, 586 
 
 Fisher v. May, 16iij 396. 
 
 — v. Mellen, 484 
 
 — v. N. Y. Com. Pleas, 496 
 Fisher's Ex'rs.-D. Mussman, 570 
 Fisher & Co. v. Appollinaris Co., 291 
 Fishmongers' Co.-«. Robertson, 131, 138 
 Fiske v. Insurance Co., 466 
 
 — v. McGregory, 143 
 Fitch v. Fit^h, 302 
 
 — v. Jones, 265, 352 
 
 — v. Snedaker, 175, 180 
 Fitler v. Commonwealth, 229 
 Fitts v. Hall, 42, 55 
 Fitzgerald v. Chapman, 63 
 
 — -u. Vestal, 802 
 Fitzhugh v. Jones, 23 
 Fitzsimmons v. Joslin, 502 
 Fivaz v. Nicholls, 329 
 Flagg v. Mann, 446 
 Flanders v. Abhy, 69 
 
 — v. Fay, 439 
 Fleckner v. Bank, 133 
 Fleet v. Murton, 224, 227, 237 
 
 — v. Perrins, 59 
 Fleming v. Ramsey, 166 
 Fletcher v. Ashley, 255 
 
 — v. Gamble, 251 
 
 — v. Watson, 209 
 Flight v. Bolland, 41, 44 
 
 — v. Booth, 421, 471 
 
 — v. Reed, 46, 345, 699 
 Flint v. Clinton Co., 131 
 
 — v. Woodin, 493 
 Flower v. Buller, 70 
 Floyd v. Calvert, 130 
 Flureau v. Thorn hill, 424 
 Fly v. Brooks, 423 
 Foard v. McComb, 482 
 Fogg v. Griffin, 503 
 
 — v. Pew, 504 
 Foley v. Crow, 445, 472, 473 
 Follett v. Buyer, 207 
 Folsom v. Insurance Co., 466, 467 
 Foote v. Emerson, 246 
 Forbes v. Cochrane, 336 
 
 — v. Wutt, 892 
 Forbes & Co.'s claim, 468 
 Forchheimer v. Holly, 284,, 587 
 Ford v. Beech, -135 
 
 — v. Cotesworth, 358 
 
 — v. Gamer, 101, 571 
 
 — v. Harrington, 332 
 
 — v. Hurd,386. 
 
 — v. Olden, 540, 561 
 
 — v. White, 206 
 
 — v. "Williams, 227 
 Foreman v. Biirelow, 506, 5.15 
 Forman v. "Wright, 398, 553 
 
 Formby v. Pryo.r„ 286 
 
 Forney v. Shi'pp, 160, 228 
 
 Forrest v. Manchester,, etc.,, Ry. Co.,. 
 
 107, 201 
 Forsythe v. Kimball, 438 
 Foshay v. Ferguson, 521 
 Foster v. Boston, 8 
 
 — u. Cockerell, 204 
 
 — v. Maokmnon, 401, 403, 404, 405, 
 431 
 
 Foster v. Means, 70 
 
 — v. Metts, 167 
 
 — v. Roberts, 550, 551 
 
 — v. Shaw, 572 
 
 — v. Thurston, 320 
 
 Fountains v. Carmarthen Ry. Co., 108- 
 Fowler v. Bott, 358 
 
 — ■». Fowler, 453 
 
 — v. Hollins, 385 
 Fox v. Davis, 270 
 
 — v. Muckreth, 253 
 
 — v. Nott, 221 
 
 — u. Railroad, Co., 294 
 
 — v. Webster, 490 
 
 — v. Wright, 550 
 Frank v. Miller, 146 
 Franklin v. Long, 421 
 Franklin Bridge Co. v. Wood, 97 
 Franklin Co. v. Bank, 100 
 Franks, Ex parte, 60 
 
 Franks v. Duchess of Ptenne, 61 
 Frary v. Sterling, 144 
 Frasei'D. Hill, 325 
 Frazier v. Thompson, 318 
 Fredenburg v. Turner, 371 
 Fredericks v. Fasnacht, 24 
 Freed v. Brown, 406 
 Freedom, The, 221 
 Freeman v. Curtis, 398 
 
 — v. Hartman, 255 
 
 — v. Jeffries, 512 
 French v. Burns, 440 
 
 — v. Gifford, 108 
 
 — v. Price, i29 
 
 — v. Shoemaker, 521 
 
 — v. Vining,. 482 
 Frendc. Dennett,, 140 
 Frenzel v. Miller, 484 
 Freshfield's Trusts, Re, 204 
 Freyman v. Knecht, 421 
 Frintz v. Finnerty, 252, ,253 
 Fripp v. Fripp, 542 
 
 Frost v. Belmont, 287 
 
 — v. Knight, 8, 182, 256 
 
 — v. Tarr, 144 
 Frybarger v. Simpson, 330 
 Fudickar v. Insurance Co., 393 
 Fuentes v. Montis, 220 . 
 Fullalove v. Parker,, 689 
 Fuller v. Brown, 369 
 
 — v. Dame, 246, 288, 306 
 
TABLE OP CASES. 
 
 xliii" 
 
 Puller v. Davis, 378 
 
 — v. Hooper, 226 
 
 — v. Steiglitz, 207 
 Fullerton v. Sturgess, 403 
 Fulton v. Andrew, 401, 524 
 
 — v. Whitney, '252 
 Funku. Hough, 160 
 Furber, Ex parte, 147 
 Furman v. Parke, 175, 180 
 Furnival v. Coombes, 234 
 Furtado v. Rodgers, 282 
 Futrell v. Vann, 412 
 
 Gabell v. S. E. Ry. Co., 31 
 Gadd v. Houghton, 226 
 Gaffney v. Hayden, 42 
 Gage v. Lewis, 496 
 Gaines v. Transportation Co., 30 
 Gaines' Adm'x. v. Poor, 273 
 Gale v. Gale, 195 
 Galena w. Corinth, 97 
 Gallagher v. Nichols, 371 
 Galloway v. Mayor of London, 95 
 Galvin v. Prentice, 580 
 Galway v. Shields, 578 
 Gammaye v. Moore, 450 
 GarbuU t). Bank, 490 
 Gardiner v. Morse, 310 
 Gardner v. Cazenove, 446 
 
 — v. Lane, 407,418, 431 
 
 — v. Ogden, 2-32 
 
 — v. Van Nostrand, 251 
 Garland v. Carlisle, 386 
 
 — ii. Pamplin, 0!) 
 Garnett v. Macon, 472, 542 
 Garnsey v. Alundy, 529 
 Garrard v, Frunkel, 416, 457 
 Garrett's Adra'rs. v. Garrett, 578 
 Garver v. Miller, 62, 270 
 Garvin v. Mobley, 198 
 
 — ■ v. Williams, 526 
 Gas Light & Coke Co. v. Turner, 319, 
 
 320 
 Gasque v. Small, 542 
 Gass v. Stinson, 250 
 Gaston v. Drake, 289 
 Gates v. Goodloe, 358 
 
 — v. Green, 358, 360 
 
 — v. Hamilton, 162 
 
 — v. Pen f roe, 303 
 Gatling v. Rodman, 584 
 Gaullagher v. Caldwell, 205 
 Gause v. Clarksville,' 118 
 Gaussen v. United States, 250 
 Gavagan v. Bryant, 404 
 Guy lord. c. Surugen, 320 
 Gaylord .VI fg. Co. v. Allen, 466 
 Gebhard/t). Gamier, 129 
 Geere v. Mare, 324 
 
 Geipel v. Smith, 282, 366, 370 
 
 Gelpke v. Dubuque, 94, 318 
 George v. Harris, 182 
 Gerhard v. Bates, 175, 178, 180, 505 
 sGerman v. Chapman, 224 
 Getty v. Devlin, 252 
 Ghegan v. Young, 218 
 Ghent v. Adams, 227 
 Gibbon v. Budcl 591 
 Gibbons v. N.E. Metropolitan Asylum* 
 
 District, 23 
 Gibbs r. Harding, 271 
 
 — v. Linabury, 402 
 
 — v. Penny, 446 
 
 — v. Smith, 310 
 Gibson v. D'Este; 478 
 
 — v. East India Co., 137 
 
 — v. Holland, 146 
 
 — v. Jeyes, 511, 524. 531 
 
 — v. Kirk, 139 
 
 — v. Pelkie, 425 
 
 — v. Soper, 406 
 
 — u. Spear, 54 
 Giddings v. Eastman, 339 
 Gidley v. Lord Palmerston, 227 
 Giffert v. West, 465 
 
 Gilford v. Dyer, 4€0 
 Gilbert v. Lewis, 518 
 
 — v. Peteler, 220 
 
 — v. Sykes, 276 
 Gilchrist v. Williams, 571 
 Giles v. Edwards, 372 
 Gilkes v. Leonino, 8 
 Gill v. Bradley, 443 
 
 — v. Davis, 287 
 Gilleland v. Failing, 303 
 Gillespie v. Battle, 579 
 
 — v. Darwin, 251 
 
 — v. Moon, 448 
 Gillett v. Thornton, 293 
 Gilliam v. Brown, 329 
 Gilliland v. Phillips, 341 
 Gilman v. Dwight, 313 
 Gilmore v. Lewis, 161, 175, 180 
 Gilroy v. Alis, 416 
 
 Gisaf v. Neval, 269 
 Glass v. Hulbert, 448, 581 
 Glasscock v. Glasscock, 166 
 Glasspoole v. Young, 386, 387 
 Glenn v. Matthews, 246 
 Glidden v. Strupler, 70 
 Goddard «. Beebe, 270 
 
 — v. Johnson, 59 
 
 — v. Kailroa'd Co., 87 
 Godfrey v. Harben, 67 
 
 — v. Thornton, 70, 584 
 Godwin v. Francis, 233 
 Goetz & Foos,T43 
 
 Golf v. Bankston, 470 
 Goldsborough v. Cradie, 175- 
 Goldsmith v. Guild, 444 
 Goman v. Salisbury, 439 
 
TABLE OP CASES. 
 
 -•Gompertz v. Bartlett, 421 
 Gooch's case, 38, 39 
 (rood v. Elliott, 276 
 <3oodall v. Cooley, 593 
 Goode v. Harrison, 39 
 
 — v. Hawkins, 310 
 Goodell v. Field, 453 
 Goodenough in re, 304 
 Goodman v. Harvey, 212 
 
 — v. Henderson, 313 
 
 — ■». Sayres, 398 
 
 — v. Simonds, 212 
 
 — v. Whitfield, Jo5 
 Goodrich v. Gordon, 186 
 Goodspeed v. Bank, 87 
 Goodwin v. Crowell, 290 
 
 — v. Cunningham, 207 
 
 — v. Goodwin, 292, 533 
 
 — v. Railroad Co., 252 
 
 — v. Robarts, 213, 214 
 - Goram v. Sweeting, 343 
 
 Gordon v. Gordon", 163, 480 
 
 — v. McCarty, 515 
 
 — v. Railroad Co., 178 
 Gore v. Gibson, 77, 79, 406 
 Goree v. Wilson, 158 
 Gorgier v. Mieville, 214 
 
 Gossler v. Eagle Sugar Refinery, 464 
 
 Gott v. Dinsinore, 30 
 
 Gough v. Manning, 307, 308 
 
 Gover's case, 481 
 
 Governor v. Allen, 85 
 
 Govett v. Richmond, 189 
 
 Gower v. Klaus, 145 
 
 — v. Sterner, 450 
 Gowland v. De Faria, 550 
 Grace v. Adams, 30 
 
 Graeme v. Wroughton, 324, 344 
 Grafton v. Cummings, 145 
 -Graham v. Graham, 27 
 
 — u. Johnson, 167, 204, 207, 209 
 
 — v. Little, 534 
 
 — v. Tilford, 207 
 ■Grain's case, 189, 190 
 Grannis v. Hooker, 508 
 Grant v. Shaw, 147 
 Grasselli v. Lowden, 166, 313 
 Gravely v. Barnard, 159, 313, 315 
 Graves v. Bank, 212, 388, 469 
 
 — v. Berdan, 358 
 
 — v. Graves' Ex'rs., 573 
 
 — v. White, 535 
 •Gray v. Fowler, 507, 508 
 
 — v. Gibson, 200 
 
 — v. Gray, 578 
 
 — u. Hook, 289 
 
 — v. Lewis, 108, 132 
 
 — v. Mathias, 268, 269 
 
 — v. Pearson, 200 
 
 — v. Seigler, 291 
 
 — v. Sims, 340 
 
 Gray v. Warner, 253 
 
 — ©.Wilson, 293 
 Gray's Ex'rs. v. Brown, 251 
 Graydon's Ex'rs. v. Graydon, 308 
 Greason v. Keteltas, 293 
 Greathouse v. Throckmorton, 265 
 Great Northern Ry. Co. o. Eastern 
 
 Counties Ey. Co., 101 
 Great Northern Ey. Co. v. Witham, 8, 
 
 160 
 Greele v. Parker, 186 
 Green, in re, 265, 277 
 Green v. Baverstook, 493 
 
 — v. Collins, 320 
 
 — v. Creighton, 220 
 
 — v. Gilbert, 370 
 
 — v. Goodall, 255 
 
 — v. Green, 42 
 
 — v. North Buffalo Tshp., 401 
 
 — v. Railroad Co., 395, 678 
 
 — v. Sizer, 284 
 
 — v. State, 493 
 
 — v. Wynn, 251 
 Greene v. Bateman, 419 
 
 — ii. Haley, 372 
 Greenfield's Estate, 401, 526, 531 
 Greenman v. Cohee, 296 
 Greenough v. Balch, 260 
 Greenwood v. Curtis, 335, 337 
 
 — v. Greenwood, 434 
 Gregg v. Pierce, 162 
 Gregory v. Paul, 62 
 
 — v. Pierce, 62 
 
 — v. Wendell, 277, 409 
 
 — v. Williams, 197 
 
 — xi. Wilson, 260 
 Grell v. Levy, 296, 339 
 
 Gresley v. Mousley, 5l0, 526, 552, 561, 
 
 563 
 Grey v. Tubbs, 444 
 Grierson v. Mason, 440 
 Griffin v. Deveuille, 534 
 
 — v. Banney, 587 
 
 — v. Rembert, 186 
 Griffith v. Burden, 116 
 
 — v. Diffenderffer, 526 
 
 — v . Wells, 262 
 — ■ v. Young, 578 
 
 Griffiths v. Jones, 417 
 
 — v. Kellogg, 402 
 
 — v. Robins, 535 
 Grigby v. Cox, 525 
 Grigg v. Landis, 444, 445 
 Griggs v. Woodruff, 508 
 Grimoldby v. Wells, 465 
 Grissell, Re, 69 
 
 Griswold v. Waddington, 282 
 Gross v. Kierski, 415 
 
 — v. Leber, 428 
 Grossman v. Wohlleben, 162 
 Grosvenor v. Sherratt, 532, 534, 551 
 
TABLE OF CASES. 
 
 xlv 
 
 Grotenkemper 17. Achtermeyer, 179 
 Grumley v. Webb, 253 
 Grymes v. Sanders, 517 
 Guerand v. Dandelet, 313 
 Guardhouse v. Blackburn, 440, 459 
 Guernsey v. Cook, 246 
 Guest v. Smythe, 2-32 
 Guild v. Baldridge, 394 
 Gu nn's ease, 20 
 Gupton v. Gupton, 308 
 Gurney v. Behrend, 220 
 Gurney v. Womersley, 422 
 Guthing v. Lynn, 25 
 Guthrie v. Bashline, 205 
 Gwynne v. Heaton, 539 
 
 H. v. W., 273 
 
 Haase v. Nonnemaeher, 466 
 
 Habrieht v. Alexander's Bx'rs., 281 
 
 Hackett v. King, 521 
 
 Hackettstown ads. Swackhammer, 118 
 
 Hadley v. Clarke, 282 
 
 — v. Clinton Imp't'g. Co., 482, 491 
 Hagee v. Grossman, 487 
 
 Hagey v. Hill, 251 
 Haggard v. Conkwright, 283 
 Haggart v. Morgan, 293 
 Haigb v. Brooks, 158 
 
 — v. North Brierly Union, 136 
 Haines v. Busk, 326 
 
 Haines' Adm'r. v. Tarrant, 53 
 Huirston v. Jaudon, 579 
 Hake v. Hotchkiss, 166 
 Hale v. Insurance Co., 118 
 
 — v. Wall, 282 
 
 — v. Wilkinson, 542 
 
 Halford v. Cameron's Coalbrook, &c, 
 
 Co., 213 
 Halhead u.Young, 438 
 Halifax Union v. Wheelwright, 402 
 Hall, Be, 595 
 
 — v. Bainbridge, 200 * 
 
 — 17. Belknap, 466 
 
 — 17. Cazenove,, 353 
 
 — u. Citv of Virginia, 18° 
 
 — i7. Cockre'll, 226 
 
 — b. Concler, 422 
 
 — v. Dyson, 248 
 
 — v. Bccleston, 69 
 
 _ i7. Hall, 510, 526, 530 
 
 — xi. Hickman, 207 
 
 — 17. .Mayor of Swansea, 139 
 
 — 17. Old Talargoch Lead Mining 
 Co., 515 
 
 Hall. 17. Palmer, 269 
 
 — v. Perkins, 534 
 
 — 17. United States, 34 
 
 — 17. Warren, 76 
 
 — 17. Wright, 307, 367, 369 
 Hallenbeck v. Dewitt, 401 
 
 Hallett v. Holmes, 251 
 
 — i7. Oakes, 77 
 
 — i). Wylie, 358 
 Hallock 17. Insurance Co., 18 
 Halls 17. Thompson, 487 
 Halsey v. Grant, 472 
 Halstead 17. Francis, 197 
 Ham 17. Greve, 469 
 Hamarskold 17. Bull, 227 
 Hambell v. Hamilton, 580 ■ 
 Hamilton «. Grainger, 262 
 
 — u. Hector, 304 
 
 — 17. Insurance Co., 18, 133, 282 
 
 — 17. Railroad Co., 133 
 
 — v. Vought, 212 
 
 — 17. Watson, 469, 470 
 
 Hamlin 17. Great Northern Ry. Co., 178- 
 
 Hammatt 17. Emerson, 482 
 
 Hammer 17. Breidenbach, 371 
 
 Hainmersley 17. Baron de Biel, 308 
 
 Hammond v. Pennock, 483, 509, 511 
 
 Hampden v. Walsh, 330 
 
 Hanauer v. Doane, 265, 284, 320, 321 
 
 — 17. Gray, 318 
 
 — 17. Woodruff, 284, 328 
 Hancock v. Harper, 569 
 
 — v. Peaty, 76 
 
 — 0. Watson, 435 
 Hancocks v. Lablache, 72 
 Hand 17. Baynes, 356, 358 
 Hanford 17. Blessing, 446 
 Hanington 17. Du Chastel, 289 
 Hanley i>. Pearson, 456, 457 
 Hannah v. Fife, 810 
 Hanson 17. Edgerly, 482 
 Harbers v. Gadsden, 473 
 Harbison 17. Lemon, 82 
 Hard 11. Seely, 314 
 Hardesty 17. Jones, 143 
 Harding, in the Goods of, 59 
 Hardman 17. Booth, 409, 514 
 Hardwood v. Wallace, 452 
 
 Hardy u. Metropolitan Land and Fi- 
 nance Co., 390 
 Hardy v. Van Harlingen, 525 
 Hare's ease, 418 
 Hargrave 17. Conroy, 370 
 Harlow u. Curtis, 21 
 Harman's case, 190 
 Harman 17. Reeve, 575 
 Harmon v. Birchard, 386 
 Harmony 17. Bingham, 356, 522 
 Harmony Lodge 17. White, 218 
 Harms 17. Parsons, 315 
 Harner v. Dipple, 41 
 
 — 17. Fisher, 227 
 Harper 17. Little, 236 
 Harriman, The, 356 
 Harrington 17. Long, 275, 296 
 
 — 17. Victoria Graying Dock Co.,, 
 246, 253 
 
xlvi 
 
 TABLE OF CASES. 
 
 Harris' case, 16 
 Harris v. Cannon, 38 
 
 — v. G. W. By. Co., 31 
 
 — v. Nickerson, 180, 184 
 
 — v. Pepperell, 416, 457 
 
 — v. Porter, 144 
 
 — v, Qnine, 573 
 
 — v. Bunnels, 262 
 
 — v. Smith, 404 
 
 — v. Tremenheere, 535 
 
 — v. Tyson, 492 
 
 — v. Wall, 40 
 
 — v. "Williams, 371 
 
 — v. Young, 142 
 Harrison v. Good, 213, 216 
 
 — v. Guest, 539, 541 
 
 — v. Myer, 358 
 
 — v. Seymour, 250 
 
 — v. Talbot, 416, 438 
 
 — v. Town, 542 
 Harson v. Pike, 175, 180 
 Hartu. Bank, 225 
 
 — v. Eastern Union By. Co., 102 
 
 — v. Miles, 158 
 
 — v. Mills, 419 
 
 — v. Swaine, 479 
 Harter v. Cristoph, 453 
 
 — v. Harter, 459 
 Hartley v. Cummings, 317 
 
 — v. Ponsonby, 162' 
 
 — v. Bice, 306 
 Harvey v. Gibbons, 354 
 
 — v. Harris, 415 
 
 — o. Hunt, 247 
 
 — v. Mount, 534 
 
 — v. Sullens, 524 
 Harwell u. Steele, 571 
 H asking v. Boyster, 188 
 Haslam v. Sherwood, 161 
 Hastelbw e. Jackson, 330, 331 
 Hastings v. Lovering, 464, 465 
 Hatch v. Hatch, 525, 526, 533 
 
 — o. Mann, 162 
 Hatzfield v. Gulden, 286 
 Haugh v. Blythe's Ex'rs, 144 
 Haven v. Foster, 397 
 Hawes v. Dingley, 513 
 
 — u. Woolcock, 160 
 Hawk v. Marion County, 180 
 Hawkins v. Pemborton, 465 
 Hawksworth v. Hawksworth, 304 
 Hawley v. Moody, 579 
 Hawtry v. Butlin, 147 
 
 Hay's case, 252 • 
 Hay v. Insurance Co., 453 
 Hayden v. Songer, 175 
 Hayes' Ex'rs. v. Hayes, 460' 
 Haygarth v. Wearing, 477, 479, 558 
 Haymaker v. Eberly, 166 
 Haynes v Nice, 578 
 jlnyney v. Coyne, 296 
 
 Haysi>; Gaslight Co., 97, 106 
 
 — v. Kershaw, 168 
 
 — v. Bailroad Co., 87, 101 
 Hay ward v. Hayward, .59 
 Haywood v. 'Cope, 544 
 
 Hazard v. Insurance Co., 400, 416 
 Hazlerigg v. Donaldson, 521 
 Hazlett c. Burge, 496 
 Heald v. Kenworthy, 229 
 Healy v. Young, 440 
 Hearne v. Insurance Co., 454 
 Heartley v. Nicholson. 169 
 Heath v. Crealock, 388 
 
 — v. Bailway Co., 108 
 Heathcote v. Paignon, 544 
 Heatherly v. Becord, 439 
 Heatley v. Thomas, 71 
 Hebb's case. 10, 15 
 Heburn v. Warner, 69 
 Heermans v. Ellsworth, 205 
 Hef'ter v. Cahn, 247 
 Heilbutt v. Hickson, 431, 465 
 Helburn v. Moffard, 358 
 Helen, The, 284 
 
 Helms v. KLearns, 198 
 Helps v. Clayton, 52 
 Hemingway v. Hamilton, 490 
 Henderson v. Australian Boyal Mail, 
 
 &c, Co., 132, 135 
 Henderson v. Palmer, 290 
 
 — v. Bailroad Co, 484, 503 
 
 — v. Stevenson, 30 
 Hendrick v. Lindsay, 198 
 Hendricks v. Comstock, 573, 574 
 
 — v. Bobinson, 158 
 Henkel v. Pape, 419 
 
 Henkle v. Boyal Exch. Assce. Co., 453 
 Henley v. Hotaling, 446 \ 
 Henner li. Gilman, 281 
 Hennequin v. Naylor, 490 
 Henry v. Henry, 581 
 
 — u. Boot, 42 
 
 — v. Smith, 454 
 Henry County «. Nioolay, 94 
 Henshaw v. Bobbins, 465 
 Hepburn v. Auld, 472 
 
 Hereford & S Wales Waggon and En- 
 gineering Co, Be, 500 
 Herrington v. Bobertson, 70 
 Herrman v. Martinean, 252 
 Hesse v. Stevenson, 436 
 Hewitt v. Brown,. 439 
 
 — v. "Wilcox, 593 
 Heyworth v. Hutchinson, 422, 465 
 Hibbelthwaite v. Hepworth, 130 
 Hickman v. Haynes, 31 
 
 Hicks v. Cleveland, 575 
 
 — v. Hicks, 446 
 Higgins v. Pitt, 248 
 
 — v. Samels, 482, 489 
 
 — •». Scott, 570 , ..• .'.'. 
 
TABLE OF CASES. 
 
 xlvii. 
 
 Higgins v. Senior, 225 
 Higginson v. Clowes, 417, 449 
 
 — v. Simpson, 829 
 
 Higgs v. Northern Assam Tea Co., 209 
 Highbergev v. Stiffler, 534 
 Hildreth v. Pinkerton Academy, 159 
 Hileman v. Wright, 448 
 Hill uj. Baker, 281 
 
 — v. Boyle, 299 
 
 — v. Gray, 491 
 
 — v. Lane, 482 
 
 — r. More, '293 
 
 — ( . Railroad Co., 30 
 
 — v Spear, 200, 320, 336 
 
 — u. Svveetser, 470 
 
 — v. Tupper, 221, 222 
 
 — v. Walker, 571 
 
 — v. Wilson, 3, 407, 439 
 Hilliard v. Eiffe, 478, 518 
 Hills v. Loomis, 446 
 
 — v. Rowland, 454 
 
 — v. Snell, 407 
 
 — • v. Sughrue, 849, 356 
 Hilton v. Eckerslev, 309 
 
 — v. Woods, 296 
 
 Himrod Furnace Co. -6. Railroad Co., 
 
 ■145, 146 
 Hinckley v. Smith, 68 
 Hind v. Holdship, 158, 198 
 Hindley v. Marquis of Westmeath, 273 
 Hinds v. Vattier, 388 
 Hindson v. Weatherill, 526 
 Hiukley v. Walters, 571 
 Hinman v. Hapgood, 593 
 Hipw'ell v. Knight, 444 
 Hirschfeld v. London, Brighton & South 
 
 Coast Ry. Co., 496 
 Hirst v. Tolson, 370 
 Hitchcock v. Coker,-313 
 
 — v. Giddings, 426 
 Hitner's Appeal, 269 
 Hoare v. Bremridge, 519 
 Hobart v. Butler, 594, 595, 596 
 Hoeh's Appeal, 571 
 Hochster v. De la Tour, 8 
 Hodgdon v. White, 571 
 Hodges v. Hall, 142 
 
 — v. Richmond Mfg. Co., 144 
 Hodgson v. Uexter, 227 
 
 — v. Earl of Powis, 101 
 
 — v. Williamson, 74 
 Hodson v. Davis, 6fe* 
 Hoffman v. Carow, 385 
 
 — v. Noble, 513 
 
 — v. Riehl,'434 
 
 — v. Vallejo, 296 
 
 Hoffman Coal Co. v. Olimberla/nd Goal 
 
 Co., 252 
 Hoggins v. G< rdon, 593, 594 
 Hoghton v. Hoghton, 401, 527, 528, 534 
 Holbrook v. Armstrong. 144 
 
 Holbrook v. Burt, 207 
 Holcomb v. Stimpson, 166 
 
 — v. Tillany, 593' 
 Hole v. Bradbury, 412 
 Holladay v. l'atterson, 288 
 Holland v. Hall, 327 
 
 Hollins v. i'owier, 385, 409, 514 
 Hollis v. Chupnian. 3G4 
 HolMsterV Nowlen, 30 
 Holloway v. Love, 296 
 Holnian o. Johnson, 281, 285, 328 
 
 — v. Loynes, 526, 5;!0, 533, 561 
 Holme o. Brunskill, 250 
 
 — u. Guppy, 372 
 Holmes v. Blogg, 42, 45 
 
 — v. Doane, 161 
 
 — v. Jacques, 201 
 
 — v. Knights, 143 
 Holridge v. Gillespie, 253 
 Holt b." Green, 260, 262 
 Holzworth v. Koch. 166 
 Homer v. Thwing, 55 
 
 Honiershani <•. Wolverhampton Water- 
 works Co., 134 
 Honeyman v. Manyatt, 21 
 Hooker v. De 1'alos, 161, 327 
 Hoole v. G. W. Ry. Co., 108 
 Hoop v. Plummer, 59 
 Hooper v. Bri.ndage, 207 
 Hoopes v. Dundas, 308 
 Hooter, v. Ransom, 71 
 Hope, Re, 590 
 
 — v. Balen, 440 
 
 — v. Hope, 271, 292, 338, 577 
 Hopkins v. Logan, 571 
 
 — v. Prescott, 289 
 
 — v. Richardson, 158 
 
 — .v. Snedaker, 511 
 Hopkinson v. Foster, 73 
 Hoppin v. Tobey, 526 
 Horn v. Bray, 143 
 
 — v. Keteltas, 446 
 Home's case, 219 
 Horrocks v. Digbv, 475 
 Horsfall v. Fauntieroy, 229 
 
 — v Thomas, 499 
 Hort's case, 189, 190 
 Horton's Appeal. 412 
 Hotehkiss v. Banks, 212 
 Hotson v. Browne, 438 
 Hotz's Estate, 308 
 Hough v: Brown, 21 
 
 — v. Manzanos, '226 
 
 — v. Richardson, 487, 499, 512 
 Hough, Adm'rs. of, v. Hunt, 540 
 Houghtalihg v. Ball, 575, 57.7 
 Houghwout v. Boisaubin, 8 
 Houldsworth v. Bank, 87, 502, -514, ,515 
 
 — o. Evans, 112 
 
 Houseman ■».- Girard M. B. & L. Ass'n., 
 225 
 
rxlviii 
 
 TABLE OP CASES. 
 
 llouser v. Laraont, 578 
 Hovey v. Hobson, 406 
 
 — v. Page, 370 
 How v. How, 198 
 
 Howard v. Bank of England, 64 
 
 — v. Brown hill, 600 
 
 — u. Daly, 15, 18 
 
 — b. Edgell, 539 
 
 — v. F. 1. Church of Balto., 287 
 
 — v. Gould, 482 
 
 — u. Harris, 446 
 
 — v. Hoev, 464 
 
 — v. Odell, 446 
 Howden v. Haigh, 248 
 Howden (Lord} v. Simpson, 325 
 Howe v. Howe, 406 
 
 — v. Newmarch, 386 
 Howell v. Coupland, 365 
 
 — v. George, 542,- 544 
 
 — v. Insurance Co., 466 
 
 — v. Ransom, 526, 531 
 
 — v. Stewart, 319' 
 Howland v. Lounds, 175, 180 
 Howley v. Knight, 85, 86 
 
 — v. Smith," 372 
 Hoxie v. Lincoln, 42 
 Hoyle v. Stowe, 38 
 Hoyt ». Thompson. 132 
 Hubbard v. Belderi, 370 
 
 — «. Matthews, 282 
 
 — 17. Miller, 313 
 
 — v. Motto, 320 
 
 — v. Ogden, 162, 251 
 Hubbell «. Carpenter, 251 
 
 — v. Von Sehoening, 443 
 Hubbert v. Borden, 227 
 Huber v. Steiner, 573, 574 
 
 Hudson Iron Co. v. Stockbridge Iron 
 
 Co., 453 
 Hudspeth v. Thomason, 453 
 Huffman v. Hummer, 443 
 Hughes v. Done, 597 
 
 — v. Humphreys, 345 
 
 — v. Jones, 458, 473, 476 
 Hughes v. Klingender, 335 
 
 — •». Sbeaff, 446 
 
 — v. "Wamsutta Mills, 369 
 Hughes' Ex'r. v. Atwood, 198 
 Huguenin v. Baselcy, 527, 535, 537, 561 
 Hull v. Mayor of Swansea, 136 
 Hulme v. Oolos, 251 
 
 — v. Tenant, 65, 71 
 Hulse, Ex parte, 446 
 Hulse v. Young, 226 
 Humaston v. Telegraph Co., 372 
 Humble v. Hunter, 227, 409 
 Hume v. Pocock, 488 
 Humfrey v. Dale, 227 
 
 .Hunt, In the Goods of, 403 
 Hunt v. Hunt, 267, 270, 272, 273 
 
 — v. Peake, 40 
 
 Hunt 17. Postlewaite, 162 
 
 — 17. Bousmaniere's Adm'rs, 395, 
 450, 454 
 
 Hunt i7. Sackett, 415 
 
 — 17. Silk, 512 
 
 — «. Wyman, 8 
 
 Hunter 17. Atkins, 526, 528, 561 
 
 — v. Bilyeu, 448 
 
 — 17. Cobb, 587 
 
 — 17. Daniel, 296, 300 
 
 — 17. Nolf, 289 
 
 — i). Walters, 402, 404, 405, 410 
 Huntington 11. Bank, 403 
 
 — 11. Uardwell, 310 
 
 — u. Clark, 248 
 
 — 17. Hall, 415 
 
 — 17. Knox, ->26 
 Hurd 17. Gill, 372 
 
 — 17. Hall, 421 
 Hurst 17. Litchfield, 293 
 Huss 17. Morris, 453 
 Hussey v. Home Payne, 440 
 Huston 17. Railroad Co., 219 
 Hutcbeson 17. Blakeman, 18, 21 
 Hutchins 17. Kimmell, 130 
 Hutchinson 17. Tatnam, 224, 227, 237" ' 
 Hutley 17. Hutley, 296, 303 
 Hutmacher 17. Harris' Adm'r., 407 
 Hutton 17. Bulloch, 226 
 
 — 17. Hutton's Adm'r., 62, 270 
 Huyler's Exr's. 17. x\twood, 435 
 Hybart v. Parker, 200 
 
 Hyde v. Hyde & Woodmansee, 335- 
 
 — 17. Wolffe, 229 
 Hyer 17. Hyatt, 41, 53 
 
 — v. Little, 539 
 Hyman v. Kain, 53 
 Hynds 17. Hays, 318 
 
 Ilsley 17. Jewett, 572 
 
 Imlay 17. Huntington, 69, 194 
 
 Ind's ease, 'J 18 
 
 India Bagging Ass'n. 17. Knox, 3Q9 
 
 Indiana v. Woram, 97 
 
 Ingersoll 17. Koe, 538 
 
 Ingle 17. Hartman, 252 
 
 Ingraham v. Baldwin, 82 
 
 — v. Disbrough, 207 
 Ingram 13. Ingram, 310 
 
 — 17. State, 378 
 Inman 17. Inman, 58 
 
 Inns of Court Hotel Co., Re, 106 
 
 Inskoe v. Proctor, 450 
 
 Insurance Co. 17. Atwood's Adm'rx., 282 
 
 — 17. Babcock, 69 
 
 — 17. Bailey, 519 
 
 — u. Clopton, 282 
 
 — 17. Crane, 463 
 
 — 17. Day, 467 
 
 — 17. Doll, 392 
 
TABLE OF CASES. 
 
 xlix. 
 
 Insurance Co. a. Duerson, 282 
 
 — v. Earle, 439 
 
 — v. France, 467 
 
 — v. Grant, 15, 18 
 
 — v. Hachfield, 212 
 
 — v. Harmer, 468 
 
 — v. Hillyar'd, 282 
 
 — v. Hutchinson, 519 
 
 — v. Jenks, 18 
 
 — v. Leavenworth, 403 
 
 — v. Mabbett, 470 
 
 — v. Morse, 293 
 
 — v. Noyes, 41 
 
 — v. Oakley, 133 
 
 — v. Railroad Co., 30 
 
 — v. Eeed, 482, 495 
 
 — v. Euden's Adm'r., 466 
 
 — v. Buggies, 467 
 
 — v. Kuse, 427 
 
 — v. Schaefer, 343 
 
 — v. Spradley, 319 
 
 — v. Stoney, 466 
 
 — v. Tuttle, 18, 19 
 
 — v. Warwick, 282 
 
 — u. Watson, 166 
 
 Ionides v. Pacific Insurance Co., 586 
 
 — v. Pender, 466, 500 
 Ipswich Tailor's case, 311 
 Irick v. Fulton's Ex'rs., 417 
 Irnham, Lord, v. Child, 395 
 Irvine v. Irvine, 42 
 
 — v. Watson, 229 
 Isberg v. Bowden, 228 
 Ish v. Crane, 236 
 Isler v. Baker, 82 
 Ivens ■». Butler, 72 
 Ives v. Bank, 403 
 
 — u. Hazard, 449 
 Ivey v. Lalland, 284, 335 
 Izard o. Izard, 583 
 
 Jackson, Ex parte, 262 
 Jackson v. Burchin, 38 
 
 — v. Campbell, 132 
 
 — v. Carpenter, 38 
 
 — v. Duchaire, 247 
 .^- v. Hayner, 401 
 
 ■ - — v. Ligon, 443 
 
 — v. Ludeling, 246 
 
 — v. Perrine, 392 
 
 — v. Stackhouse, 442 
 
 — ■». Turquand, 22 
 
 — v. Union Marine Insurance Co., 
 367 
 
 Jacobs v. Locke, 473 ' 
 
 — v. Richards, 405 
 
 — 13. Seward, 390 
 Jacquinet v. Boutron, 374 
 James, Ex parte, 398 
 James v. Fulcrod, 18, 310 
 
 James v. Hodsden, 499 
 
 — v. Isaacs, 410 
 
 Jameson v. Gregory's Exr'x., 320 
 January v. Martin, 542 
 Janvrin v. Exeter, 175, 180 
 Jaqua v. Montgomery, 210 
 Jarman v. Wilkerson, 69 
 Jarratt v. Aldam, 563 
 Jarvis v. Peck, 314 
 
 — v. Rogers, 214 
 
 — v. Sutton, 167 
 Jay, Ex parte, 147 
 Jay v. Ainphlett, 72 
 Jee v. Thurlow, 272 
 Jefferys v.. Gurr, 139 
 Jeffrey v. Bigelow, 482, 503 
 Jeffries v. Wioster, 252 
 Jefts v. York, 234, 482 
 Jellison v. Jordan, 579 
 Jenkins v. Clarkson, 161 
 
 — v. Freyer, 59 
 
 — v. Frink, 310 
 
 — v. Jenkins' Heirs, 76 
 
 — v. Kebren, 175 
 
 — v. Meagher, 393 
 
 — v. Pye, 525, 562 
 
 — v. Stetson, 302 
 Jenks v. Fritz, 423 
 Jenners v. Howard, 79 
 Jenness v. Lane, 161 
 
 — u. Mt. Hope Iron Co., 10, 2i 
 Jennings v. Broughton, 485, 487 
 
 — v. Gratz, 464 
 
 — v. Johnson, 298, 344 
 
 — v. McConnell, 526 
 
 — v. liundall, 53 
 Jepherson v. Hunt, 142 
 Jervis v. Berridge, 440 
 
 — «. Tomkinson, 366 
 Jevon v. Bush, 194 
 Jewett v. Railroad Co., 93 
 J. G. v. H. G., 270 
 Jilson v. Gilbert, 144 
 Joest v. Williams, 82, 518 
 Johnasson v. Bonhote, 576 
 Johns v. Frilchey, 82 
 
 'Johnson v. Buck, 146 
 
 — v. Collins, 198 
 
 — o. Cummins, 68 
 
 — v. Fall, 265 
 
 — u. Filkin<,ton, 8 
 
 — v. Gallas-ber. 67, 70, 71, 74, 75- 
 
 — v. Hubb'ell, 308 
 
 — v. Insurance' Co., 321 
 
 — v. Johnson, 533 
 
 — v. Johnson's Adm'r., 158 
 
 — v. Knapp, 198 
 
 — v. I.ansley, 239 
 
 — v. Lines, 50 
 
 — v. Meeker, 264 
 
 — v. Monnell, 490 
 
TABLE OF. CASES. 
 
 Johnson v. Peterson, 255 
 
 — v. Pie, 54, 55 
 
 — v. Railroad Co., 570 
 
 — v. Russell, 300 
 
 — v. Stephenson, 21 
 
 — v. Terry, 303 
 
 — v. Trinity Church Soc., 146 
 
 — v. Way, 212 
 
 Johnson's Adm'r.o. Seller's Adm'r., 163 
 
 Johnston v. Crawley, 132 
 
 Jones, Kg, 590 
 
 Jones r. Bank, 175, 180, 319, 570 
 
 — v. Blocker, 188 - 
 
 — v. Broadhurst, 215, 410 
 
 — v. Clifford, 395, 427, 428 
 
 — v. Colwin, 50 
 
 ■ — «. Emery, 490 
 
 — u. Gibbons, 219 
 
 — v. Giles, 345 
 
 — v. Harris, 07, 74, 147 
 
 — v. Holm, 360 
 
 — v. Insurance Co., 229 
 
 — v. Jones, 205, 308, 573, 579 
 — • v. Judd, 355 
 
 — v. Just, 404 
 
 — v. Lane, 212 
 
 — v. Lees, 314, 315 
 
 — v. North, 309, 342 
 
 — v. Rice, 291 
 
 — v. Ricketts, 552 
 
 — v. Rimmer, 476 
 
 — v. Robinson, 199 
 
 — v. Sevier, 265 
 
 — v. Shackelford, 473 
 
 — v. Shorter, 143 
 
 — v. St. John's College, 357 
 
 — v. Stanley, 188 
 
 — u. United States, 356 
 
 • — v. Victoria Graving Dock Co., 
 146 
 Jones v. Voorhees, 30 
 
 — v. Wnite, 158, 103, 248 
 
 — v. Walker, 189, 371 
 Jordan v. James, 390 
 
 • — v. Lol'tin, 470 
 
 — v. Money, 407, 581, 584 
 
 — v. Osgood, 490 
 
 — v. Stevens, 428 
 
 — v. White, 198 
 Joseph v. Bank, 403 
 Josephs v. Pebrer. 216 
 JosKn v Co^yee, 507 
 
 — ' v. N. J. Car Spring M'fg. Co., 
 198 
 
 Josselyn v. Edwards, 198 
 Joy v. Adams, 570 
 Joyce v. Swann, 23 
 Jutlab o. M'Namee, 591 
 Judson v. Corcoran, 204 
 
 — v. Railroad Co., 30 
 Justice v. Lang, 145 . 
 
 Justice v. Tallman, 198 
 Juzan v. Toulmiri, 539 
 
 Kahn v. Gumberts, 247 
 
 Kanaga v. Taylor,, 835 
 
 Karet v. JKLosher Meat Supply Ass'n., 
 
 147 
 Katama Land Co. o. Jernegan, 93 
 Kay v. Duchess de Pienne, 61 
 
 — u. Smith, 535 
 Kaye v. Moore, 268 
 Kean v. Bran den, 252 
 
 — v. Johnson, 93 
 Kearney v. Taylor, 310 
 Kearon v. Pearson, 356 
 Kearsley v. Cole, 250 
 
 Keates v. Earl Cadogan, 479, 491, 492 
 
 — v. Lyon, 220, 223 
 Keech v. Sandford, 253 
 Keen v. Coleman, 59 
 
 — u. Hartman, 58 
 Keenan v. Handley. 167 
 Keep v. Goodrich, 18 
 Keighler v. Savage Mfg. Co., 252 
 Keir v. Leeman, 290, 
 Keisselbrack v. Livingston, 448 
 Kekewich v. Planning, 168 
 Keller v. Eisher, 443 
 
 — v. Johnson, 518 
 Kellog v. Larkin, 314 
 Kellogg v. Curtis, 265 
 
 — v. Mix, 434 
 
 — v. Olmstead, 162 
 
 — v. Robinson, 219 
 
 — v. Turpie, 507 
 Kelly, matter of, 175, 180 
 
 — v. Insurance Co., 321 
 
 — v. Riley, 233 
 
 — v. Solari, 394 
 Kelner v. Baxter, 233, 234 
 Kelsey v. Hibbs. 143 
 Kempson v. Aslibee, 534, 563 
 Kendall v. May, 77 
 Kennedy, Re 129 
 
 Kennedy v. Broun, 594, 595, 596 
 
 — v. Green, 403, 404 
 
 — v. Lee, 13 
 
 — v. Panama, &c, Mail Co., 413, 
 421, 463 
 
 Kenneth v. Railroad Co., 522 
 
 Kennett v. Chambers, 284 
 
 Kent d. Freehold Land Co., 418, 509 
 
 — v. Kent, 144 
 
 — v. Snyder, 518 
 Kenworthy v. Sawyer, 251 
 Ke'ppel v. Bailey, 222 
 Kerfoot v. Bymari, 254 
 Kern v. Thurber, 513 
 Kerr v. Kuykendall, 438 
 
 — v. Lucas, 158 
 
TABLE OF CASES. 
 
 2Cerr v. Merchants' Exchange Co., 358 
 Kershaw*. Kelsey, 281,283 
 Keteham v. Hill, 572 
 Jtettle v. Eliot, 46 ■ 
 Key v. Jennings, 515 
 
 — v. Vattier, 295,96 
 Kibble, Ex parte, 43 
 Kick v. Merry, 161 
 Kidder v. Blake, 167 
 
 — v. Hunt, 579 
 Kidderminster, Mayor of, v. Hardwick, 
 
 131, 137, 138 
 Kiefer v. Kogers, 488 
 Kien v. Stukeley, 544 
 Kiewert v. Rindskopf, 330 
 Kilborn v. Field, 292 
 Kilmer v. Smith, 453 
 Kilpatrick v. Kilpatrick, 454 
 Kimball v. Noyes, 198 
 Kimfblev. Christie, 402 
 Kimbrough v. Lane, '290, 318 
 Kincaid v. Eaton, 175 
 .King v. Bardeau, 472 
 
 — v. Brown, 580 
 
 — v. Doolittle, 395, 397, 425 
 
 — v. Eagle Mills, 482 
 
 — v. Green, 327, 328 
 
 — v. Hamlet, 554, 555 
 
 — v. Howard, 293 
 — • v. Knapp, 471 
 
 — v. JMittlebarger, 71 
 
 — v. Nichols, 250 
 
 — v. Ruckman, 443 
 
 — v. Smith, 580 
 
 — v. Upton, 166 
 
 — u. Welcome, 580 
 
 — v. Whitely, 198 
 
 — v. Winants, 244, 329 
 Kingsley v. Balcome, 143 
 
 — v. Davis, 229 
 Kinirsford v . Merry, 407, 409, 514 
 Kinkead He, 70 
 
 Kinsey v. Wallace, 162 
 Kinsman v. Parkhurst, 159, 314, 329 
 Kintrea, Ex paite, 494, 499 
 Kintzing v. McElrath, 492 
 Kirby v. Harrison, 445 
 Kirk v. BromJey Union, 138 
 
 — v. Morrow, 329 
 Kirkpatrick v. BonSall, 277 
 
 — v. Howk, 251 
 
 — v. Peshine, 220 
 
 — v. Stainer,. 226 
 Kirwan v. Culleiij 528 
 Kisling v. Shaw, 526 
 Kitchen v: Lee, 42 
 Kitehin v. Hawkins, 397 
 Klapworth v. Dressier, 198 ■- 
 Kleeman-D. Collins, 146, 576 - • 
 Klein v. McNamara, 446 
 Kleinhaus v. Generous, 251 ^ . t ... ."•- 
 
 Kline v. Baker, 19 
 
 — v. Kline, 525 
 
 — o. L'Amoureux, 50 
 Knaggs v. Green, 42 
 Kneeland v. Gibson, 118 
 Knight v. Bower, 296, 298, 300 
 
 — v. Marjoribanks, 540 
 
 Knight, Distributees of, v. Godbolt, 571 
 Knobb v. Lindsay, 542 
 Knowlton v. C. & E. Springs, 330 
 Knox v. Gye, 194, 569 
 Koch v. Branch, 385 
 
 — v. Willi, 228 
 
 Koehler v. Black River, &c., Co., 132 
 
 Kohn v. Renaisance, 284 
 
 Kohne v. Insurance Co., 466 
 
 Koontz v. Bank, 394 
 
 Kraker v. Byrum, 60 
 
 Kribben v. Haycraft, 286 
 
 Kribhs v. Downing, 516 
 
 Kronheim v. Johnson, 146 
 
 Kruse v. Steffens, 252 
 
 Krutz v. Fisher, 252 
 
 Kugler v. Wiseman, 372 
 
 Kyle v. Kavanagh, 415 
 
 Labarre v. Hopkins, 308 
 Lacey, Ex parte, 252 
 Lachlan v. Reynolds, 477 
 Lacy v. Sugarman, 283 
 Ladd v. Lord, 503 
 Lafferty v. Jelly, 253 
 Laidlaw v. Organ, 492 
 Laing v. McCall, 291 
 
 — v. Reed, 106 
 Laird v. Wilder, 274 
 Lake v. Brown, 207 
 
 — v. Reed, 212 
 Lakeman v. Mountstephen, 142 
 
 — v. Pollard, 370 
 Lamare v. Dixon, 497, 498 
 Lamb's case, 354, 378 
 Lamborn v. County Comm'rs., 397 
 Lamm o. Port Deposit Homestead 
 
 Ass'n., 87 
 L'Amoureux v. Crosby, 77 
 
 — v. Gould, 160 
 Lampet's case, 202 
 
 Lamprell v. Billoric'ay Union, 136 
 Lancaster v. Walsh, 175 
 Landa v. Obert, 521 
 Landauer v. Cochran, 513 
 Lander v. Castro, 232 
 Lane v. Horlock, 552 
 Lange v. Werk, 313, 314 
 Langston v. Aderholdj 572 
 Lanier v. Hill, 483 
 Lanning v. Carpenter, 395 
 Lansden v. McCarthy, 411 
 Larchin'u. N orth Western Deposit 
 Bank, 147 .,>..' ■: 
 
lii 
 
 TABLE OF- CASES; 
 
 Larking v. Biddle, 395 
 Larmon v. Jordan, 8, 9 
 Lamed v. Andrews, 262 
 Larrabee v. Baldwin, 129 
 La Rue v. Gilkyson, 77 
 Lassence v. Tierney, 581 
 Latham v. Smith, 587 
 Lathrop v. Bank, 133 
 
 — v. Knapp, 182 
 
 — v. Soldier's. Ass'n, 70 . 
 Lattimore v. Harsen, 164 
 
 — v. Simmons, 370 
 Laughter's case, 373, 378 
 Laurence ■». Smith, 274 
 Lavender v. Hall, 578 
 Lavery v. Turley, 579 
 Law v. Grant, 501, 503 
 Lawes v. Purser, 159 
 Lawrason c. Mason, 186 
 Lawrence v. Beaubien, 428 
 
 — v. Clark, 247 
 
 — v. Cooke, 144 
 
 — v. Davey, 164 
 '— v. Fox, 198 
 
 — u. McCalmont, 158 
 
 — v. Staigg, 416 
 Laythoarp v. Bryant, 575 
 Lazarus v. Cowie, 214 
 Lea v. Whitaker, 448 
 Leach v. Duvall, 256 
 
 — v. Muilett, 418 
 
 — v. Nichols, 402 
 
 Leahi v. Dugdale's Adm'rx., 205 
 
 Leask v. Scott, 497, 513 
 
 Leather v. Simpson, 485 
 
 Leather Cloth Co. v. Hieronimus, 31, 146 
 
 — v. Lorsont, 310, 313, 315 
 Leavitt v. Morrow, 410 
 
 — i). Palmer, 318, 395 
 Leaycraft v. Hedden, 71 
 Leazure v. Hillegas, 97 
 
 Lebeau v. General Steam Nav. Co., 
 
 468 
 Lebel. v. Tucker, 215 
 Ledlow v. Becton, 142 
 Lee, Ex parte, '282 
 Lee ii. Bude, &c, Ey. Co., 259 
 
 — v. FLemingsbur£, 175, 180 
 
 — v. GaMcell, 144 
 
 — v. Hills, 448 ' 
 
 — u. Jones, 469, 470, 491 
 
 — v. Kimball, 513 
 
 — v. Kiiby, 395, 541, 542 
 
 — v. Lee, 526 
 
 . — v. Pea('ce,i561 
 
 — v. Stuart, 399 
 Leeds v. Cheetham, 358, 359 
 Lefferson v. Dallas, 578 
 Legge -o. Croker, 478 
 Leggett v.- H.J. MTg. Co., 132 
 Leggott v. G. N. R. Go, 173 
 
 Lehman «. Shackelford, ,521 
 
 — v. Strassburger, 265, 277" 
 Lehr v. Beaver, 62 
 Leicester v. Hose, 248 ' 
 Leifchild's case, 169 
 Leighton v. Orr, 525 
 Leining v. Gould, 101 
 Leitensdorfer v. Hempstead, 38 
 Leman v. Pleteher, 591 
 
 — v. Houseley, 263, 592, 593^ 
 Lemon v. Grosskopt', 329 
 Lempriere v. Lange, 56 
 Lenderman v. Talley, 59 
 Lennard u. Robinson, 226 
 Lennon v. Napper, 444, 446 
 Leonard v. Leonard, 77 
 
 — v. Vredenburgh, 143 
 Leopold v. Salkey, 368 
 Lerned v. Johns, 227 
 
 Leroux v. Brown, 575, 576, 577, 593.'- 
 Leroy v. Crowninshield, 573 
 Leslie v. Fitzpatrick, 37, 48 
 Lestapies v. In graham, 329 
 Lester v. Mahan, 540 
 Letchford, Re, 54 
 Levering v. Mayor, 131 
 
 — v. Rittenhouse, 571 
 
 — v. Transportation Co., 30 
 Levet v. His Creditors, 320 
 Levy v. Cuhen, 18, 19 
 
 — v. Green, 419 
 Lowellen v. Garrett, 394 
 Lewis v. Bannister, 520 
 
 — v. Brass, 24 
 
 — v. Bright, 264 
 
 — v. Jones, 495 
 
 — v. Kerr, 236 
 
 — v. Knox, 289 
 
 — v. Latham, 320 
 
 — v. Lewis, 296 
 
 — 6. Littlefield, 55 
 
 — v. McLemore, 484 
 
 — v. Nicholson, 232 
 
 — v. Kumney, 571 
 
 — d. Seabury, 143 
 
 — v. Welch, 262 
 Lexington v. Butler, 115 
 
 Ley land v. Illingsworth, 416, 478 
 
 — v. Stewart, 147 
 Lichfield v. Baker, 399 
 Licbtenberger v. Graham, 70 
 Liddle v. Needham, 580 
 
 Life Ass'n. of Scotland v. Siddal, 51S- 
 
 Lightburn v. Cooper, 421 . 
 
 Li*htfoot«. Heron, 79 
 
 Ligon's Adm'r. v. Rogers, 395 
 
 Lillard v. Turner, 69 ; 
 
 Lilly ii. Wagjroner, 77 
 
 Limpus v. London General Omnibus 
 
 Co., 386 
 Lincoln v. Battelle, 573, 574 
 
TABLE OF CASES. 
 
 liii 
 
 Lincoln v. Ruekmaster, 82 
 
 — v. Rowe, 68 
 JLincoln College case, 36 
 Xindenau v. Desborough, 467 
 Liindo v. Linclo, 442 
 Lindsay v. Cundy, 409, 514 
 Lindsay v. Smith, 290, 291, 318 
 Lindsay Petroleum Co. v. Hurd, 497, 
 
 516 
 Lindsey v. Rutherford, 262 
 Lindus v. Bradwell, 226 
 Linker v. Smith, 255 
 Linn v. Barkey, 453 
 
 — v. Ross, 358 
 
 — v. Sigsbee, 313, 314 
 
 Lishman v. Northern Maritime Ins. 
 
 Co., 586 
 Lister, Re, 265 
 Lister v. Hodgson, 456 
 
 — v. Pickford, 390 
 Liston v. Jenkins, 434 
 Litchfield v. Hutchinson, 482 
 Litt v. Cowley, 390 
 
 .Littauer v. Goldman, 421 
 Little v. Bardwell, 308 
 
 — v. Martin, 579 
 Littlefield v. Smith, 206 
 
 . Livermore v. Peru, 397 
 Livingston v. Lynch, 93 
 
 — v. Ralli, 293 
 .Livingstone v. Hogers, 18 
 .Llanelly Ry. & Dock Co. v. L. & N.W. 
 
 Ry. Co., 169, 293 
 Lloyd v. Atwood, 516 
 
 — v. Banks, 205 
 
 — v. Brewster, 507 
 
 — v. Clark, 535 
 
 — v. Crispe, 354 
 
 — v. Fulton, 583 
 
 ILoad n. Green, 490, 510, 513, 516 
 Loader v, Clarke, 255 
 Locke v. Smith, 53 
 
 — v. Stearns, 503 
 
 — v. Williamson, 466 
 Lockwood v. Stockholm, 59 
 Lofft v. Dennis, 334, 358, 359 
 Logan v. Matthews, 166 
 
 — v. McGinnis, 308 
 
 — v. Simmons, 255 
 London, Mayor of, v. Cox, 386 
 London Chartered Bank of Australia 
 
 v. Lempriere, 67, 518 
 London Dock Co. ■;;. Sinnott, 134 
 London Joint Stock Bank v. Mayor of 
 
 London, 87 
 London and ST. W. Ry. Co. v. McMi- 
 
 chael, 42, 47 
 London (Port of) Company's case, 110 
 ILondon & Provincial Ins. Co. v. Sey- 
 mour, 519 
 
 London & S. W. Ry. Co. v. Blackmore, 
 
 442 
 Long v. Hartwell, 31 
 
 — v. Hickingbottom, 415 
 
 — ii. Long, 493 
 
 — v. Miller, 146 
 
 — v. Mulford, 523 
 
 — o. Rhawn, 215 
 
 — v. Towl, 167, 313 
 
 — v. Woodman, 496 
 Longmate v. Ledger, 540 
 Lonsdale v. Bank, 186 
 
 — v. Brown, 166 
 Longworth v. Mitchell, 9 
 Loomis v. Newhall, 158 
 Lord v. Goddard. 482, 484 
 
 — v. Grow, 465 
 
 — v. Jeffkins, 550 
 
 — a. Wheeler, 364 
 Loring v. Boston, 9, 175, 180 
 
 — v. Folger, 386 
 Losee v. Morey, 542 
 Loss v. Obry, 450 
 Loud v. Loud, 270 
 Louisville v. Henning, 397 
 Love v. Hoss, 253 
 Loveridge v. Cooper, 204 
 
 Lovett v. German Reformed Church, 110 
 
 — v. Steam Saw Mill Ass'n., 131 
 Low v. Barchard, 551 
 
 — v. Railroad Co., 188 
 
 Lowe v. London & N. W. Ry. Co., 135, 
 
 139 
 Lowe v. Peers, 306, 307 
 
 — v. Sinklear, 42 
 Lowell v. Daniels, 70 
 Lowry v. Adams, 186 
 
 — v. Spear, 302 
 Lowther v. Lowther, 252 
 Lueas v. Mitchell, 439, 448 
 
 — v. Wilkinspn, 410 
 Luckett v. Williamson, 473, 581 
 Ludington v. Ford, 453 
 
 Ludlow, Mayor of, v. Charlton, 181, 
 
 133, 137 
 Luey v. Bundy, 579 
 Luker v. Dennis, 223 
 Lumley v. Gye, 188 
 Lumsden's case, 39 
 Lupkin v. Mayall, 42 
 Lush's trust, 70, 584 
 Lyall v. Edwards, 442 
 Lyddon v. Moss, 531 
 Lyman v. Clark, 442 
 
 — v. Insurance Co., 453 
 
 — v. Robinson, 24 
 Lynch, Ex parte, 57 
 Lynch v. Fallon, 252 
 Lyon v. Bertram, 421 
 
 — v. Culbertson, 277 
 
liv 
 
 TABLE OF CASES. 
 
 Lyon v. Haynes, 217 
 
 — v . Home, 536 
 
 — v. Mitchell, 286 ' 
 Lyons v. Blenkin, 304 
 Lytle v. State, 296 ■ 
 
 McAfee v. .Ferguson, 255 
 McAllister v. Hoffman, 330 
 McAndrews v. Tippett, 372 
 MeArthur v. Goddin, 573 
 McAuley v. Billenger, 182 
 McBlair v. Gibbes, 284, 322 
 McBratney v. Chandler, 287 
 McBride v. Insurance Co., 282 
 McCabe v. Grey, 207 
 McCaJeb v. Price, 161 
 M'Callan v. Mortimer, 329 
 McCann v. Lewis, 162 
 McCarren v. McNulty, 26 
 .McCarthy v. Decaix, 397, '429 
 McCausland's Kstate, 130 
 McClallen v. Adams, 591 
 McClean v. Kennard; 392 
 McClellan v. Kennedy, 396 
 
 — v. Sandford, 144 
 McClintick v. Cummins, 521 
 McClung v. "Kelly, 464 
 MoOlure v. Miller, 255 
 
 — v. "Wilson, 182 
 McClnrg's Appeal, 313 
 MoCollin v. Gilpin, 233 
 McComb v. Kittredge, 162 
 McConihe v. McMann, 320 
 McConnell v. Hector, 283 
 McOormick v. Chcevers, 143 
 
 — v. Littler, 77 
 
 — v. Malin, 527, 532, 540, 563 
 McOotter v. Mayor, 21 
 McCracken v. West, 504 
 MeCray v. Railroad Co., 93 
 McCrillis v. Barllett, 77 
 
 — v. Carlton, 512 
 McCulloch v. Gregory, 479 
 
 — v. Scott, 512 
 
 M'CulIoch v. Insurance Co., 10, 18 
 McCullough's Appeal, 308 
 McCullough v. Wilson, 70 
 McCurdy v. Rogers, 233 
 McDonald v. Gray, 182 
 
 — u. McDonald, 302 
 
 — v. Kneeland, 206 
 
 Mac Dougall v. Gardiner,' 108 
 McDowell v. Laev, 198 
 
 — v. Simms, 493 
 
 McElhenny v. Hubert Oil Co., 252, 481 
 McElmoyle v. Cohen, 573 
 McEh-oy v. Carmichael, 265 
 McGann v. Marshall, 38 
 McGavock v. Puryear, 319 
 
 McGoren v. Avery, 425 ' 
 McGrath -a. Herndon, 372 
 McGuire v. McGuire, 308 
 McGunn v. Hanlin, 293 
 McHenry v. Davies, 73, 74 
 
 — v. Du-flield, 233 
 
 — v. Hazard, 519 
 Mellvaine v. Gethen, 308 
 Mclntyre v. Parks, 19. 320, 335- 
 
 — v. Williamson, 432 
 Melver v. Richardson, 10 
 McKanna v. Merry. 50 
 McKay v. Simpson, 395, 450 
 McKecknie v. Ward, 251 
 McKee v. Miller, 371 
 McKenzie v. Hesketh, 416 
 
 ■ — v. Nevius, 226 
 
 McKewan v. Sanderson, 247, 248- 
 
 MeKinley v. Irvine, 252 
 
 — v. Watkins, 167 
 McKinney ■». Andrews, 320 
 
 — v. Pihckard, 540 
 McKune v. Joynson, 175 
 McLanahan v. Insurance Co., 466- 
 McLean v. Bank, 9-7 
 McMahan v. Smith, 520 
 McMahon v. Borden, 264 
 
 — u.McGraw, - _!52 
 McMauus v. Bark, 165 
 McMerty r. Morrison, 573, 574 
 McMillan v. Fis-h, 395; 453 
 
 — v. Railroad Co., 30 
 
 — v. Solomon, 358 
 McMinn's Legatees v. Phip'ps, 310 
 MeNaughton v. Colliding, 186 
 McNeil"«. Bank, 214 
 McNiell's case, 509 
 MePherson v. Cox, 144, 296 
 
 — v. Watt, 531 , 
 McVeigh v. United States, 283 
 McVey v. Cantrell, 69 
 McWilliams v. Martin, 435 
 
 Macbeath v. Haldimahd, 227 
 
 Macbryde v. Weeks, 445 
 
 Maccord v. Osborne, 572 
 
 Macdonald v. Law Union Ins. Co., 467" 
 
 Macgregor v. Dover & Deal Ry. Co.,. 
 97, 102 
 
 Mack v. Bragg, 580 
 
 Mackay, Ex parte, 147, 262 
 
 Mackay o. Commercial Bank of New- 
 Brunswick, 87.M86, 502, 504 
 
 Mackey v. Mackey, 24 
 
 Maeiay v. Harvey, 13 
 
 Maclean's trusts, 290 
 
 Mactier's Adm'rs v. Frith, 8, 18 
 
 Madan v. Sherard, 30 ' • 
 
 Maddox v. Maddox, 307, 308 
 
TABLE OF CASES. 
 
 IT 
 
 Maddon v. White, 38. 47 
 
 Madison Ave , &c, Church v. Church 
 
 in Oliver St., 97 
 Madison Plk, Koad 'Co. v. Watertown 
 
 Plk. Bond Co., 97 
 Magdalen Hospital (Governors of) v. 
 
 Knotts, 3b ' 
 Magee v. Insurance Co. 469 
 
 — v. Lavell, 448 
 Maggart v. Freeman, 501 
 Magnin v. Dinsmore, 469 
 Maguire v. Maguire, 493 
 
 — v. Smock, 287 
 Mahan v. United States, 575 
 Mahony v. Bast Holy ford MiniDg-Ca, 
 
 109 
 Muhurin v. Harding, 482 
 Main u. Ryder, 525 
 Mainprice v. Westley, 179 
 Maitland v. Backhouse, 562 
 
 — v. Irving, 526, 534 
 Major v. Fields, 296 
 Majors v. Hickman, 372 
 Makemson v. Kaufl'man,. 287 
 Malins v. Freeman, 36, 415 
 Mallalieu v. Hodgson, 161, 247 
 Mallet v. Bateman, 143 
 Mallory v. Gillett, 143 
 
 — v. Insurance Co., 467 
 
 — v. Leach, 491 
 Malone v. Kelly, 526 
 
 — a. Railroad Co., 30 
 Man by v. Scott, 60, 66 
 Man del v. Buttles, 466 
 Manes v. Durant, 255 
 Mangles v. Dixon, 207 
 Manhattan Co. u. Thompson, 69 
 Mann u. Richardson, 233 
 
 — v. Stephens, 222 
 Mansfield v. Trigg, 465 
 
 — i7. Watson, 82 
 Manson v. Thacker, 479 
 
 March v. Railroad Co., 93, 100, 108, 293 
 
 Marcy v. Marcy, 144 
 
 Marion v. Faxon, 435 
 
 Marking v. Needy. 161 
 
 Marksbury v. Taylor, 269 
 
 Marlett v. Jackman, 236 
 
 — v. Wilson's Fx'r., 196 
 Marquand v.H.Y. Mfg. Co., 412 
 Marriott v. Hampton, 522 
 Marsh v. Fulton, 93 
 
 Mai'sh v. Whitmore, 252 
 
 Marshall v. B. & O. Railroad Co., 84, 
 
 286 
 Marshall v. Caldwell, 473, 475 
 
 — v. Collett, 389 
 
 — u. Craig, 371, 378 
 
 — v. Green,- 144 - 
 
 — v. Marshall, 271 
 
 — ■». Means, 299 
 
 Marshall v. Rutton, 59 
 Marston v. Knight, 421 
 
 — v. Swett,159 
 Martin's claim, 587 
 Martin v. Berens, 438 
 
 — v. Clarke, 295, 296 
 
 — «. Gale, 53 
 
 — v. Mario w, 302 
 
 — v. Martin, 252, 561 
 
 — v. Kuntzmulier, 207 
 
 — v. McOormick, 428 
 
 — v. Moulton, 252 
 
 — v. Pycroft, 438, 449 
 
 — v. Smylee, 402 
 
 — v. Wade, 289 
 
 — v. Wharton, 495 
 Marvin v. Bennett, 425 
 
 — v. Treat, 175 
 Marx v. F.llsworLh, 277 
 Mason v. Crosbv, 486, 503 
 
 — v. Hail, 1*98 
 
 — v. Harris, 108 
 
 — v. Martin, 2.32 
 
 — u. Ring, 530 
 Massey v. Davies, 253 
 Master v. Hansard, 223 
 Masury v. Soulhwortb, 218, 222 
 Mather v. Lord Maidstone, 165 
 Matheson v. Ross, 587 
 Matlock v. Todd, 488 
 Matteson v. Holt, 421 
 Matthewman's case, 69 
 Matthews v. Baxter, 82, 406, 520 
 
 — v. Bliss. 499 
 
 — v. Cowan, 55 
 
 — v. Fitch, 160, 296 
 
 — v. L]t»llt, 252 
 
 — v. MeStca, 282 
 
 — v. Poythress, 212 
 
 — v. Wallwyn, 219 
 Matthew's Adm'r. v. Meek, 160 
 Matthewson v. Clarke, 412 
 Matthieson, &c, Co. v. McMahon'a 
 
 Adm'r., 82 
 Maw v. Topham, 475 
 Mawson v. Fletcher, 473 
 Maxfield v. Burton, 206 
 Maxon v. Scott, 70 
 Maxwell v. Griswold, 522 
 May v. Hewitt, 226 
 
 — v. O'Neill, 315 
 
 — v. Telegraph Co., 482 
 Mayd v. Field, 67 
 
 Mayer v. Adrian, 145, 146 
 Mayer v. Mayor, &c, of N. Y., 394 
 Mayhew v. Crickett, 251 
 Maynard v. Eaton, 509 
 
 — v. Insurance Co., 87 
 
 — v. Maynard, 482 
 Mayo v. Carrington, 549 
 
 Mayor, the (of Nashville) v. Bay, 118 
 
4vi 
 
 TABLE OP CASES. 
 
 Mead v. Bunn, 488 
 
 — v. Insurance Co., 453 
 
 — v. Young, 388 
 Meares, Re, 77 
 Hearing v. Hellings, 331 
 Mears v. Waples, 513 
 Mease v. Wagner, 142 
 Mecorney v. Stanley, 166 
 Medbury v. Hopkins, 573 
 
 — v. Watrous, 42 
 Meek v. Perry, 526 
 
 JVi eeks v. Dewberry, 296 
 
 Meguier v. Corwine, 289 
 
 Megod's case, 194 
 
 Meily v. Butler, 70 
 
 Meister v. Moore, 130 
 
 Melbado v. Porto Alegre Ry. Co., 198 
 
 Melledge v. Boston Iron Co., 226 
 
 Mellen v. Whipple, 198 
 
 Memphis, City of, v. Brown, 325 
 
 Mendenhall v. Treadway, 515 
 
 Menier v. Hooper's Telegraph Works, 
 
 108 
 Mentz v. Insurance Co., 294 
 Mercer County v. Hackett, 116, 209 
 Merchants' Bank v. State Bank, 87, 94; 
 
 110 
 Merchants' Banking Co. of London v. 
 
 Phoenix Bessemer Steel Co., 209, 213 
 Meredith v. Crawford, 42 
 
 — v. Ladd, 289 
 
 Meriden Britannia Co. v. Zingsen, 142 
 Merriam v. Cunningham, 50, 55 
 
 — v.. Moore, 198 
 
 — v. Railroad Co., 70 
 
 — v. Wolcott, 465 
 Merrick's Estate, 226 
 Merrill v. Green, 198 
 Merritt v. Lambert, 296 
 
 — v. Millard, 329 
 Mersereau v. Lewis, 143 
 Metcalf v. Putnam, 453 
 
 : Metcalfe's trusts, 661 
 Meth. Ep. Church v. Jacques, 69 
 Metzgar v. Metzgar, 207 
 Meux v. Jacobs, 147 
 Meyer's Appeal, 252 
 Meyer v. Lowell, 198 
 MeyerhoffV Froehlich, 572 
 Meyers v. Bank, 251 
 Meynell v. Surtees, 20 
 Michael v. Bacon, 320 
 
 — v. Morey, 194 
 Michener v. Payson, 515 
 Michoud v. Girod, 252 
 Middleborough v. Rochester, 76 
 Middlesex R. R. Co. v. Boston- and 
 
 Chelsea R. R. Co., 101 
 Middleton v. Brown, 555 
 Midland Ry. Co. v. Pye, 63 
 
 Midland G. W. Ry. Co. of Ireland, v. 
 
 Johnson, 134, 391 
 Mill v. Hawker, 89, 90 
 Mill Dam Foundry ,v. Hovey,132, 378 
 Millar v. Craig, 443 
 Miller's case, 190 
 Miller v. Billingsley, 198 
 
 — ' v. Board, &c., of Dearborn Co., 97 
 
 — v. Bomberger, 207 
 
 — v. Brenham, 573 
 
 — v. Brigham, 412 
 
 — v. Cook, 553 
 
 — v. Davis, 450 
 
 — v . Pin ley, 78, 82 
 
 — ■». Hawker, 166 
 
 — v. Heller, 436 
 
 — a. Larson, 327 
 
 — v. Lea, 225, 228 
 
 — v. Lord, 392 
 
 — v. McManis, 28 
 
 — v. Post, 262 
 
 — v. Stem, 470 
 
 — v. Stewart, 250 
 
 — v. Trustees of Jefferson College, 
 570 
 
 Millican v. Millican, 528, 534 
 Milliken v. Prat*, 19, 258 
 Mills v. Brown, 143 
 
 — v. Powkes, 570 
 
 — v. Hunt, 225, 226 
 
 — v. Mills, 287 
 
 — v. Scott, 195 
 
 — v. Wyman, 158 
 Millward v. Littlewood, 233, 257 
 Milner v. Patton, 320 
 Miltenberger v. Cooke, 322 
 Minard v. Mead, 226 
 
 Miner v. Hess, 453 
 
 — v. Medbury, 484 
 
 Miners' Ditch Co. v. Zellerbach, 94, 97 
 Minnesota Oil Co. v. Collier Lead Co., 
 
 9,18 
 Minor v. Sharon, 479 
 Minturn v. Main, 226 
 Mirick v. French* 182 
 Mitchel v. Reynolds, 309, 310 
 Mitchell's claim, 572 
 Mitchell v. Doggett, 341 
 
 — v. Lancashire & Yorkshire Ry. 
 Co., 390 
 
 Mitchell v. Lapage, 408 
 
 — v. Mitchell, 456 
 Mix v. People, 378 
 Mizner v. Kussell, 491 
 Mizzel v. Burnett, 9 
 
 M. & M. Kailroad Co. v. M. & W. 
 
 Railroad Co., 299 
 Moley v. Brine, 39 
 Mollett v. Robinson, 252 
 Molony v. KernaHj 532, 535, 561 
 
TABLE OF GASES. 
 
 lvil 
 
 Bolton v. Camroux, 81, 82, 406 
 .Monde! v. Steel, 465 • • • 
 Monliman v. Shepherdson, 164 
 Monopolies, case of, 311 
 Monroe v. Barclay, 525 
 
 — v. Perkins, 164 
 Moptague v. Garnett, 144 
 
 — v. Weil, 24 
 Montgomery v. Perkins, 563 
 
 — v. United States, 281 
 Moody v. Blake,, 409, 514 
 
 — v. Smith, 579 
 Moon v. Foster, 283 
 Moore v. Adams, 820 
 
 — v. Bunk, 214 
 
 — o. Bonnet, 313, 314 
 
 .Moore & De La Torre's case, 480, 507 
 
 — v. Detroit Locomotive Works, 
 164 
 
 Moore v. Luekess' Next of Kin, 393 
 
 — v. House, 198 
 
 — v. Mandelbautii, 254 
 
 — o. Metrop. Ey. Co., 87 
 
 — v. Moore, 169, 252 
 
 — v. Mountcastle, 146 
 
 — v. Paine, 250, 251 
 
 — v. Pierson, 18 
 
 — v. Wade, 446 
 Moorehouse v. Comstock, 464 
 
 .Moorhquse v. Colvin, 27 
 Mooring v., Stanton, 265 
 Meran v. Commissioners, 94 
 Mordecai v. Boylan, 460 
 Mordue v. Palmer, 393 
 Morehead v. Hunt, 493 
 Moreland v. Atchison, 496 
 Morgan v. Griffith, 143, 359 
 
 — v. Malleson, 169 
 
 — v. Minett, 531 
 
 — v. Overman S. M. Co., 198 
 
 — v. Bavey, 28 
 
 — v. Rowlands, 572 
 
 — v. Smith, 251 
 
 Morison o. Thompson, 253 
 .Morley v. Bennoldson, 308 
 Morphett v. Jone.s, 438, 581 
 
 Morrell v. Cowan, 68 
 
 — v. Quarles, 175 , 
 Morrill v. Aden, 64 
 
 — v. Blackman, 490 
 _ v. Tehama Co., 24 
 
 Morris v. Hunt, 595, 596 
 
 — v. Keil, lbl 
 
 — v. McCoy, 448 
 
 — v. Morris, 493 
 
 — v. Munroe, 396 
 
 — v. Stoker, 526 
 
 Morris Bun Coal Co. o. Barclay Coal 
 
 Co., 309 
 .Morrison v. Deadrick, 299 
 
 Morrison v. Universal Marine Ins. Co., 
 
 466, 511, 518, 587 
 Morrison v. Wikon, 70 
 Morse v. Bellows, K.iO 
 
 — v. Braekett, 421 
 
 — v. Tappan, 129 
 
 — v. Royal, 562, 563 
 
 Morse Twist Drill, &c, Co. v. Morse, 313 
 Mortara v. Hall, 51 
 Mortimer v. Bell, 493 
 
 — v. Capper,. 542 
 
 — v. Shortall, 452 
 Mortlock v. Buller, 473 
 Morton v. Dean, 146 
 Mosby v. Wall, 448 
 Moseley v. Boush, 202 
 Moses v. Bagley, 296 
 
 — v. Insurance Co., 466 
 
 — u. Railroad Co., 30 
 Moss v. Averill, 115 
 
 — v. Harter, 452 
 
 — 13. Riddle, 470 
 
 — v. Rossie Mining Co., 97 
 
 — v. Smith, 352 
 Mostyn v. Mostyn, 595 
 
 Mostyn v. West Mostyn Coal & Iron. 
 
 Co., 432, 479 
 Moth v. Atwood, 550 
 Mott v. Harrington, 296 
 Mottram v. Heyer, 390 
 Mouflet v. Cole, 316 
 Moulton v. Trask, 372 
 Mountstephen v. Lakeman, 142 
 Mowrey v. Railroad Co., 93 
 Moxley v. Moxley, 9 
 Moxon v. Payne, 562 
 Moyce v. Newington, 513 
 Mozley v. Tinkler, 10 
 Mudge v. Oliver, 408 
 Mueller v. Wiebracht, 578 
 Muir v. Schenk, 204 
 Muldon v. Whitlock, 229 
 Mulholland v. Bartlett, 167 
 Mullen v. Keetzleb, 252 
 Muller v. Eno, 410 
 Mulliken v. Millar, 490 
 Mulliner v. Midland Ey. Co., 95 
 ■Mumford v. Gething, 315 
 Munro, Ex parte, 597 
 Munroe v. Pritchett, 482 
 Murdoch v. Dickson, 204 
 Murphy v. Boese, 146 
 
 — v. Eooney, 448 
 
 — v. Sloan, 252 
 
 — v. Webber, 578 
 Murray v. Barlee, 66 
 
 — v. Can-others, 227, 233 
 
 — v. E. India Co., 116 ; , 
 
 — v. Lardner, 212 !.;<-!: 
 
 — v. Mackenzie, 147 , f ---it»h 
 
Iviii 
 
 TABLE OF CASES. 
 
 Murray v. Parker, 451 
 
 — ■». Pinkett, 206 
 Musselman v. Cravens, 82 
 Musser v. Johnson, 131 
 Mustard v. "Wohlford, 81, 41, 42 
 Myers v. Davis, 207 
 
 — o. Watson, 497, 498 
 
 Nachtrieb ». The Harmony Settte- 
 
 mont, 5-36 
 Naden, Ex parte, 269 
 Naff v. Crawford, l84 
 Nail v. Punter, 71 
 Nash v. Hodgson, 570 
 
 — ^.Mitchell, '70 
 
 — v. Towne, 225 
 
 Nat. Bk. of Commerce v. M'chts. Nat. 
 
 Bk., 220 
 National Provincial Bank of England, 
 
 Ex parte, 453 
 Navigation Co. v. Wilcox, 371 
 Neal, Matter of, 304 ' 
 Neale v. Turton, 116 
 Neally v. Greenough, 521 
 -Nebeeker v. Cutsinger, 402 
 Nedby v. Nedby, 525 
 Needles' Ex'r. v. Needles, 302 
 Neilson, Ex parte, 260- 
 Nelson v. Bank, 186 
 
 — v. Stocker, 57 
 Nerot v. Wallace, 161 
 Nesbit v. Lockman, 531 
 Ncsbitt v. Bcrridge, 551, 552 
 Nettleton v. Billings, 434 
 Neves v. Scott, 195 
 Nevius v. Don-lap, 453 
 New r. Wambach, 453 
 
 New Brunswick, &e., Co. v. Cony- 
 
 beare, 488, 503 
 New Brunswick, &c, Co. v. Mugge- 
 
 rid:?e, 480 
 Newburgh v. Newburgh, 459 
 Newcastle M'fg. Co. v. Eailroad Co., 
 
 226 
 Neweomb v. Braekett, 371 
 
 — v. De Boos, 20 
 Newell v. Bad ford, 145 
 
 New England, &c, Co. v. Union, &c, 
 
 Co., 118 
 Ncwhall v. Vargas, 390 
 New .Jersey Steam N.av. Co. v. Bank, 30 
 Newkirk v. Cune, 296 
 Newman v. Sylvester, 233 
 No wry & Enniskillen Ry. Co. v. 
 
 Loombe, 42, 46 
 New Sombrero Phosphate Co. v. Erlan- 
 
 ger, 252, 481 
 Newsom v. Bufferlow, 448 
 Newton v. Marsden, 308 
 
 New Zealand Banking Corporation,. 
 
 Ex parte, 209 
 Niblo v. Binsse, 364 
 Nicholu. Godts/438. 
 
 — v. Thomas, 406 
 Nichols v. Johnson, 145 
 
 — v. Marsland,' 362 
 
 — v. Palmer, 270' 
 
 — v. Pinner, 490 
 — ■ v. Poulson, 341 
 
 — v. Buggies, 246 
 
 — v. Stager, 50' 
 
 Nicholson v. Bradfield Union, 136- 
 
 — v. Wilborn, 51 
 Niedelet v. Wales, 358 
 Niellv. JIurley. 81 
 Nisbett v. Galb'raitb, 186 
 Nixon v. Halley, 70. 
 
 Noble v. Thompson Oil Co., 206 
 
 — ' v. Ward, 439, 588 
 Nock v. Railroad Co., 30 
 Nolin V Blaekwell, 571 
 Norcum ». Shehan, 38 
 Norfleet v. Cromwell, 218 
 Norman v. Wells, 218 
 Norris v. Blethen, 397 
 • — v. Doniphan, 283 
 North v. llobinson, 143 
 
 — v. Phillips, 277 
 Northam v. Cartwright, 206 
 Northampton v. Elwell, 198 
 
 North British Ins. Co. v. Lloyd, 469- 
 470 ' ' r 
 
 Northoote v. Doughty, 43 
 North'rup v. Graves, 397 
 N. W. Iron Co. v. Meade, 21 
 Norton v. Janvier, 182 
 
 — v. Marden, 397 
 
 — u. Nichols, 70, 584 
 
 — v. Belly, 537 
 
 — v. Turville, 74 
 
 — v. Tuttle, 299 
 
 Norwich, Mayor of v. Norfolk By, Co... 
 
 91, 97, 105, '113, 244, 341 
 Norwood v. De Hart, 198 
 
 — v. Bead, 187 
 Nott v. Johnson, 160 
 Nottidge v. Prince, '536 
 Nourse v. Henshaw, 69 
 Nowlin v. Pyne, 395 
 Noyes v. Loring, 232, 233 
 Nugent v. Smith, 362 ■ 
 
 — v. Supervisors, '93 
 Nunn v. Eabian, 580 ■• 
 
 — v. Givhan, 68 
 Nuttall v. Bracewell, 222 
 
 Oakden v. Pike, 444 
 Oakeley v. Pasheller, 251 
 
TABLE OF CASES. 
 
 lix 
 
 Oakes v. Turquand, 382, 418, 506, 514,517 
 Oakley v. Portsmoiun & Kyde Steam 
 
 Packet Co., 361 
 O'Brien v. Brietenbach, 320 
 
 — v. Hilburn, 70 
 Ockenden v. Barnes, 518 
 Odlin v. Insurance Co., 282 
 O'JDonnell v. Leeman, 146 
 Oelricks v. Ford, 226 
 Ogden v. Maxwell, 522 
 
 — v. Ogden, 143 
 
 — v. Raymond, 233 
 Ogilvie v. Insurance Co., 507 
 
 — v. Jeaffreson, 404, 405 
 Ogle, Ex parte, 386 
 Oglesby v. Yglesias, 227 
 O'Hara «. Carpenter, 286 
 
 Obio v. Board of Education, 318 
 Oldershaw v. King, 166 
 Oliver, Ex parte, 247 
 Oliver v. Insurance Co., 395 
 Oltman v. Moak, 42 
 Omerod v. Hardman, 439 
 Oneida Bank v. Ontario Bank, 331 
 O'Neil v. Capelle, 446 
 
 — v. Railroad Co., 575 
 Oppenheimer v. Express Co., 469 
 Orcutt v. Nelson, 408 
 
 Oregon S. N. Co. v. Winsor, 313, 314 
 Oriental Financial Corporation v. Over- 
 end, Gurney & Co., 251 
 Orleans v. Piatt, 94 
 Ormes v. Beadel, 508, 538 ■<■• 
 
 Ormrod v. Hutb, 482 
 O'Rorketi. Bolingbroke, 552, 553, 557 
 Orr v. Lacey, 97 
 Orrick v. Colston, 403 
 Osborn v. Bank, 133 
 
 — v. Nicholson, '275, 337 
 
 — u. Phelps, 448 
 Osborne v. Kerr, 227 
 
 — v. Williams, 289, 332 
 Osgood v. Franklin, 542 
 
 — v. Lewis, 465 
 
 — v. Miller, 250 
 
 O'Shea v. Collier, &c, Co., 247 
 Oswald v. McOehee, 486 
 
 — v. Mayor of Berwick on Tweed, 
 250 
 
 Otis v. Cullum, 465 
 
 — v. Prince, 308 
 Ott v. Garland, 579 
 Oulds v. Harrison, 265 
 Overseers v. Sear. 85 
 Overton v. Banister, 56 
 
 — v. Tracy', 43!) 
 Owen v. Da vies, 77 
 
 — v. Davis, 329 
 
 — v. Honians, 348, 484 
 Owens v. Dickenson, 06 #. - 
 
 — v. Mynatt, 521 - .■ - : ■ 
 
 Oxford Iron Co. v. Quinchett, 320 
 
 — v. Spradley, 115 
 Ozley v. lkelheimar, 69 
 
 Pabodie v. King, 161 
 Packer v. Benton, 142 
 
 — v. Steward, 371 
 Packet Co. v. Sickels, 144 
 Padden ■„. Taylor. 513 
 Paddock v. Bobinson, 233 
 
 — v. Strobridge, 482 
 Page v. Cox, 199 
 
 — v. Home, 525 
 
 — v. Stone, 229 y 
 Paice v. Walker, 225, 226 , ' 
 Paige v. Sherman, 423 
 
 Paine u Drew, 573 
 
 — v. Strand Union, 136 
 Pakenham's case, 219 
 Palfrey v. Kailroad Co., 167 
 Palmer v. Blaine. 142 
 
 — v. Harris, 274 
 
 — v. Lorillard, '282 
 
 — v. Marston, 275 
 
 — v. Neave, 256 
 
 — v. Stebbins, 317 
 Palo Alto, the, 21 
 Palyart v. Leckie, 330 
 
 Panama & S Pacific Telegraph Co. o. 
 
 India Hubber Co., 254 
 Pangborn v. Westlake, 262, 264 
 Paradine v. Jane, 358, 359, 360 
 Pardee v. Piatt, 2 5 
 Parfitt v. Lawless, 526 
 Parbam v. Randolph, 488 
 Paris v. Strong, 144 
 Paris Skating Rink Co., 299 
 Parish v. Wheeler, 97 
 Park v. Johnson, 449 
 Parke v. M orris Axe and Tool Co., 466 
 Parker v. Butcher, 554 
 
 — v. Donaldson, 225, 228 
 
 — v. G. W. Ry. Co., 522 
 
 — v. Lambert, 59' 
 
 — o. McKenna, 253, 519 
 
 — v. Nightingale. 220, 224 
 
 — v. S. E. Ry. Co., 31 
 
 — v. Tainter, 579 
 
 — v. Thomas, 488, 495 
 
 Parker Vein Coal Co. v. O'Hern, 371 
 Parkes v. White, 6.7 
 Parkin v. Thorold, 443, 444, 445, 446- 
 Parkinson u. City of Parker, 131 
 Parks v. Boss, 227 
 Parmalee v. Thompson, 161 
 Parmelee v. Cameron, 539, 549 
 Parse 111). Stryker, 308 
 Parsons v. Alexander, 345 ' . 
 
 — v. Keyes, 50, 53 • 'i . 
 
 — v. Winslow, 308 ' ■' vi a 
 
Ix 
 
 TABLE OF CASES. 
 
 Partington v. Att'y.-Gen., 59 
 Partridge v. Messer, 247 
 
 — v. Strange, 301 
 Pastor v. Coit, 265 
 Patrick v. Milner, 444 
 
 — v. Putnam, 370 
 Patten v. Hicks, 144 
 Patterson v. Boehm, 247 
 
 — v. Donher, 292 
 
 — v. Lawrence, 59, 70 
 Patton v. Allison, 524 
 
 — v. Thompson, 252 
 Pauling v. L. & N. W. Ey. Co., 135 
 Pawle's case, 509 
 
 Payne's case, 494 
 Payne v. Cave, 179 
 
 — v. Eden, 248 
 
 — v. Pusey, 571 
 Peabody v. Flint, 84. 108 
 
 — v. Norfolk, 314 
 
 — v. Speyers, 146 
 Peacock, Ex parte, 57 
 Peacock v. Evans, 539, 548 
 
 — v. Monk, 65 
 
 — v. Penson, 497 
 Peake v. La Baw, 69 
 Pearce v. Brooks. 319, 320 
 
 — v. Watts, 26 
 Pearl v. McDowell, 77 
 
 — v. Harris, 293 
 Pears v. Laing, 572 
 Pearsoll v. Chapin, 36 
 Pease v. Gloahee, 513 
 Pease v. Pease, 226 
 
 — v. Smith, 385 
 Pechell v. 'Watson, 295 
 Peck v. Brighton Co., 445 
 Peebles v. Patapsco Guano Co., 87 
 Peed v. McKee, 290 
 
 Peek v. Gurney, 482, 484, 491, 505 
 Peel v. Shepherd, 228 
 Peeler •p.Levy, 474 
 Peeters v. Opie, 443 
 Peirce v. Corf, 146 
 Pellecat v. Arigell, 285 
 Peltz v. Eichele, 314 
 . Pemberton v. Hoosier, 161 
 Pence v. Arbuckle, 402 
 Pender v. Lushington, 108 
 Pendleton County v. Amy, 118 
 Penn v. Whitehead, 70 
 Pennington (Doe d.) v. Tanniere, 139 
 Pennock's Appeal, 493 
 Penrose' v. Curren, 55 
 Pentz v. Stanton, 226 
 People v. Bartlett, 378 
 
 — v. Fisher, 309 
 
 — v. Gates, 587 
 
 — v. Manning, 378 
 
 — v. Mercein 273, 304 
 
 — v. San Francisco, 495 
 
 People v. Speir, 29 
 
 — v. Stephens, 508 
 
 — v. Tompkins, 250 
 
 — v. Vilas, 250 
 Perfect v. Lane, 551 
 Perkins ■». Clay, 144, 158 
 
 — v. Cummings, 318 
 
 — v. Eaton, 330 
 
 — v. Giles, 393 
 
 — v. Guy, 573, 574 
 
 — v. Hinsdale, 142 
 
 — v. Littlefleld, 143 
 
 — v. Lougee, 496 
 
 — v. Kogers, 281, 283 
 ~- v. Savage, 327 
 
 — v. Scott, 540 
 Perrett's case, 24, 418 
 Perrin v. Wilson, 50 
 Perrine «. Dunn, 303 
 Perry v. Swasey, 198 
 Persse v. Persse, 302 
 Peruvian Railways Co., Re, 116 
 Peter v. Compton, 144 
 
 Peters v. Fleming, 49 
 Peterson v. Edmondson, 358 
 
 — v. Mayor, 133 
 Pettee v. Peppard, 198 
 Pettigrew v. Chellis, 491 
 Pettit v. Braden, 142 
 
 Pettit's Adm'r. v. Pettit's Distributees, 
 
 318 
 Petty v. Petty, 256 
 Peugh v. Davis, 446 
 Phalen v. Clark, 329 
 Phelan v. Moss, 212 
 Phelps v. Lyle, 200 
 
 — v. Seely, 439 
 
 — -o. Zuschlag, 521 
 Phillip v. Gallant, 392 
 Phillips v. Bistolli, 415, 433 
 
 — v. Caldcleugh, 424, 456, 472, 478 
 
 — v. Clagett, 442 
 
 — o. Foxall, 251 
 
 — v. Graves, 69 
 
 — ■ v. Hatch, 281 
 -— u. Homfray, 477 
 
 — v. Medbury, 308 
 
 — v. Miller, 475 
 
 — v. Mullings. 528 
 
 — v. Phillips, '387, 388 
 Philomath Colleger. Hartless, 182 
 Philpott v. Elliott, 448 
 
 — v. Jones, 597 
 Phippen v. Stickney, 310 
 Phipps v. Buckman, 487 
 
 — v. Lovegfove, 205, 207 
 Phosphate of Lime Co. v. Green, 112 
 Piatt v. Longworth's Devisees, 252 
 Picard v. Hine, 67, 68 
 
 Pickard v. Marriage, 147 
 Pickering's claim, 226 
 
TABLE OF CASES. 
 
 Ixii 
 
 Pickering v. Cease, 277 ' 
 
 — o. Ilfracombe Ry. Co., 206, 318 
 
 — v. Stephenson, 107 
 Pideoek v. Bishop, 470 
 Pierce v. Puller, 313, 314 
 
 — v. Goldsberry, 162 
 
 — v. Pierce, 625 
 
 — v. Robinson, 446 
 
 — v. Payne, 144 
 
 — v. Ruley, 182 
 
 — v. "Wilson, 508 
 Pierey v. Young, 293 
 
 Piggott v. Stratton, 497, 581, 584 
 Pigot's case, 317 
 Pigott v. Thompson, 196, 201 
 Pike v. Colvin, 386 
 
 — v. Fitzgibbon, 70 
 Pilcher v. Rawlins, 387 
 Pilio v. New Orleans, 175 
 Pilkington v. Scott, 317 
 Pillans v. Van Mierop, 157 
 Pinchon's case, 187 
 Pindar v. Upton, 379 
 Pingry v. Washburn, 288 
 Pinkett v. Wright, 206 
 Pinkston v. Brown, 332 
 Pinnel's case, 164 
 Pintard o. Martin, 508 
 Pippen v. Wesson, 69 
 
 Pisani v. A.-G. for Gibraltar, 531 
 
 Pitcher v. Hennessey, 395 
 
 Pitkin v. Noyes, 167 
 
 Pitt v. Smith, 79, 405 
 
 Pittam u. Foster, 60 
 
 Pittenger's Adm'r. v. Pittenger, 79 
 
 Pixley v. Boynton, 277 
 
 Plant v. Gunn, 521 
 
 Plant Seed Co. v. Hall, 21 
 
 Planter's Bank v. Union Bank, 329 
 
 Piatt v. Bromage, 397 
 
 Playford v. United Kingdom Electric 
 
 Telegraph Co., 197 
 Pledge v. Buss, 251, 469, 470 
 Plevins v. Downing, 31 
 Plews v. Baker, 293 
 Plumer v. Smith, 319 
 Plummer v. Bucknam, 578 
 
 — v. The People, 521 
 Poillon v. Martin, 535, 561 
 Poindexter v. Davis, 265 
 Police Jury i'. Britton, 117' 
 Pollard v. Scears, 571 
 Pomemy v. Slade, 161 
 Ponsford v. Johnson, 257 
 Pool v. Boston, 161 
 
 — v. Gott, 304 
 
 — v. Pratt, 40 
 Popham v. Brooke, 532 
 Poplett v. Stockdale, 246 
 Pordage v. Cole, 376 ' ' 
 Porritt v. 'Baker, 343 ■'■.' 
 
 Port of London. Co.'s case, 110 
 Port v. Port, 130 
 
 — v. Russell, 252 
 Porter's case, 326 
 Porter v. Railroad Co., 132 
 Potomac Coal Co. v. Railroad Co., 522'. 
 Potter v. Duffield, 145 
 
 — v. Jacobs, 581 
 
 — v. Potter, 453 
 
 — v. Sanders, 14 
 Potts v. Bell, '281 
 
 — u. "Whitehead, 9, 21 
 Poulton v. L. & S. W. Ry. Co., 386 
 Poussard v. Spiers and Pond, 368 
 Powell v. Bnidlee, 490 
 
 — v. Elliot, 473 
 
 -p u. Smith, 392, 420 
 
 — is. Thomas, 581 
 Power's Appeal, 302 
 Powers v. Hale, 542 
 
 — v. Insurance Co., 467 
 
 — u. Skinner, 287 
 
 Practical Knowledge, Soc. of, v. Ab- 
 bott, 89, 90 
 Prairie v. Jenkins, 251 
 Prater v. Miller, 167 
 Prather v. Burgess, 255 
 Pratt v. Barker, 536 
 
 — v. Bates, 143 
 
 — v. Humphrey, 143 
 
 — v. Philbrooic', 508 
 
 — u. Railroad Co., 24 
 
 — v. Trustees, 20 
 Prees v. Coke, 540 
 Prentice v. London, 294 
 Presbury v. Fisher, 318 
 Presby v. Parker, 503 
 Prescott v. Battersley, 262 
 
 — v. Norris, 54 • 
 Preston v. Dania, 377, 447 
 
 — v. Henning, 162 
 
 — v. Missouri, etc., Lead Co., 115,133 "■ 
 Prevost v. Gratz, 516 
 
 Price's Appeal, 562 
 Price v. Berrington, 81 
 
 — v. Cannon, 161 
 
 — v. Dyer, 439 
 
 — v. Easton, 196, 198 
 
 — v. Furman, 42 
 
 — v. Hewett, 55 
 
 — v. Ley, 449, 450 
 
 — v. Macaulay, 486 
 
 — v. Pepper, 362 
 
 — v. Sanders, 53 
 Pride v. Bubb, 65, 68 
 
 Prideaux v. Londsdale, 255, 529 .-„- 
 
 Priestly v. Fernie, 229 
 
 Prinoe'ii. Griffin, 444 
 
 Prince of Wales Assce. Co. v. Hard- - 
 
 ing 111 -- ,„ 
 
 Pringle v. Dunkley, 308 -iu« - 
 
lxti 
 
 TABLE OF CASES. 
 
 Printing & Numerical Registering Co. 
 
 v. Sampson, 281, 315 
 Pritehard v. Merchants' Life Ins. Soc, 
 
 427 
 Proctor v. McCall. 501 . 
 Prosser v. Edmonds, 294, 296, 299, 300 
 Proudfoot v. Montefiore, 467 
 Prout v. Wiley, 42 
 Pryse v. Pryse, 801 
 Pulbrook v. Lawes, 579 
 Pulsford n. Richards, 507 
 Purcell v. Macnamara, 539 
 Pursley v. Hayes, 42 
 Putnam v. Sullivan, 403 
 Pybus v. Gibb, 250 
 Pym v. Campbell, 439 
 
 Quarrier v. Colston, 338 
 Quincey v. Sharpe, 572 
 Quinn v. Koath, 439, 444 
 
 Rabono v. Williams, 228 
 Kadcliffe v. Varner, 94 
 Raden hurst v. Bates, 199 
 Radford v. Carwile, 69 
 Raffensberger v. Cullison, 439 
 Raffles v. Wichelhaus, 414 
 Rafter v. Bank, 262 
 Raggett v. Bishop, 598 
 
 — v. Musgrave, 598 
 Raguet v. Roll, 290 
 Railroad Co. v. Anderson, 488 
 
 — i>. Babcock, 542 
 
 — v. Bartlett, 8 
 
 — v. Blocker, 87 
 
 — v. Bowler, 252 
 
 — v. Boyd, 30 
 
 — -o. Brownies, 30 
 
 — v. Burke, -87 
 
 — «. Casey, 251 
 
 — v. Chatham, 118 
 
 — v. Collins, 108 
 
 — v. Commissioners, 522 
 
 — v. Comm'rs of Miami Co., 539 
 
 — v. Croswell, 93 i 
 
 — v. C. V. & W. Coal Co., 522 
 
 — v. Dalby, 87, 178 
 
 — v . Dane, 9, 160 
 
 — v. Dunn, 87 
 
 — v. Gow, 251 
 
 — v. Harris, 84, 93 
 
 — v. Howard, 115, 118, 209 
 
 — v. Jaoksonj 419 
 
 — v. Kerr, 513 
 
 — v. King, 284 h 
 
 — v. Manufacturing 1 Co., 30 
 
 — v. Mathers, 288, 320 
 
 — v. Mitchell, 160 
 
 — v. Norwich, &c, Society, 94> 115 
 
 Railroad Co. v. Pattison, 252, 522 
 
 — i* Poor,, 252 
 
 — v. Quigley, 87 
 
 — v. Kagsdale, 581 
 
 — v. Reynolds, 30 
 
 — v. Rhodes,, 207 
 
 — v. Rinard, 178 
 
 — v. Rogers, 87* 178 
 
 — v. Row, 508 
 
 - — v. Ryan, 288 
 
 — v. Schunick, 401 
 
 — v. Schuyler, 94, 503 
 
 — v. Seeley, 288 
 ■ — v. South, 178 
 
 — v. Spear, 434, 450 
 
 — v. State, 88 
 
 — v. Tipton, 118 
 
 — v. Transportation Co., 97 
 
 — o. Trimble, 392 
 
 — v. West, 110 
 
 — v. Winans, 101 
 
 — o. Young, 386 
 Railton v. Mathews, 469, 470 
 Railway Co. v. Dewey, 252 
 
 — v. Whitton, 84 
 Raisin v. Clark, 252 
 Rake's Adm'rs. v. Pope, 144 
 Ralston v. Boady, 320 
 
 Ram Coomar Coondoo v. Chunder Canto 
 
 Mookerjee, 303 
 Ramloll Tbackorseydass v. Soojumnull 
 
 Dhondmnll, 277 
 Ramsay v. Joyce, 255 
 
 — v. Warner, 570 
 Ramsden v. Brearley, 63 
 
 — v. Dyson, 5.81 
 
 — v. Lupton, 147 
 
 — v. Railroad Co., 87 
 
 — v. Smith, 453 
 
 Ramsgate Hotel Co. v. Goldsmid, 9 
 
 — v. Monteflore, 9 
 
 Randal v. C. & D. Canal Co. 293 
 Randall v. Morgan, 576 
 
 — v. Randall, 270 
 
 — v. Sweet, 53 
 
 — v. Van Vechten, 133 
 Randegger v. Holmes, 293 
 Randell v. Trimen, 233 
 
 Randell Saunders & Co. v. Thompson, 
 
 293 
 Randolph Iron Co. v. Elliott,. 408 
 Ranken v. Patton, .561, 562 
 Rankin v. Potter, 369 
 Raphael v. Bank of England, 212 , 
 Rapid, the, 281 
 Rashdall v. Pord, 495 
 Ratcliffe v. Smith, 320 
 Rathbone v. Tucker, 229 
 Rawdon v. Rawdon, 76 
 Rawley v. Rawley, 43 
 Rawlins v. Wickham, 484, 491, 507 
 
TABLE OF CASES. 
 
 hiiii 
 
 Ttawson v. Clark, 364 ' 
 Ray v. Haines, 42 
 
 — .». Tubbs, 55 
 Raymond v. Minton, 372 
 Rayner v. Grote, 232 
 Read v. Hall, 70 
 
 — v. Legard, 77 
 
 — v Walker, 484 
 Reade v. Lamb, 575, 576 
 
 — v. Livingston, 583 
 Ready r. Noalies, 542 
 
 Real Kst. Sav. Inst. v. Linder, 397 
 Rector, etc., of St. Bartholomew «. 
 
 Wood, 118 
 Redfern u. Bryning, 434 
 Redlich v. Doll, 403 
 Reed v. Beazley, 270 
 
 — v. Deere, 588 
 
 — u. Holcombe, 143 
 
 — 17. Marble, 205 
 
 — v. MeGrew. 512 
 
 — v. Randall, 466 
 
 — v. Warner, 252 
 Rees v. Berrington, 251 
 
 — v. Williams, 344, 597 
 
 Reese River Silver Mining Co. u. 
 
 Smith, 480, 484, 509 
 Reg v. Aspinall, 246 
 
 — 17. Carnatic By. Co., 04 
 
 — i. Justices of Cumberland, 137, 
 138 
 
 Reg i;. G. N. of Eng. Ry. Co., 86, 88 
 
 — i>. Lord, 37 
 
 — v. Middleton, 407 
 
 — v. Prince, 385 
 
 — v. Rowlands, 246 
 
 — i7. Mayor of Stamford, 137 
 
 — i). Warburton, 246 
 Reidpath's case, 15 
 Reilly 17. Smith, 474 
 Reinheimer v. Carter, 144 
 Reinicker v. Smith, 79 
 Reinskopf v. Rogge, 78 
 Remington v. Palmer, 143 
 Renals v. Cowlishaw,* 220, 223, 224 
 Rennick v. Butterfield, 252 
 Reuss i;. Picksley, 145 
 
 Reuter u. Electric Telegrapb Co., 135 
 
 Revel v. Revel, 59 
 
 Reynard v. Arnold, 360 
 
 Reynell 17. Sprye, 295, 296, 324, 332, 
 
 486, 491, 499 
 Reynolds 17. Hall, 250 
 
 — 17. Nugent. 161 
 
 — v. Reynolds, 493 
 
 — ' v. Trustees, &c, 132' 
 Rhea v. Rentier, 62 
 Tthodes 17. Bate, 530,. 535, 563 
 
 — u. Sumnierbill, 281. 
 
 — v. Thomas, 439 
 Ricard v. Sanderson, 198 
 
 Rice v. Carter, 143 
 
 — v. Dwight MTg. Co., 425 
 
 — v. Gistj 265 
 
 — v. Gordon, 470, 539 
 
 — v. Manly, 188 
 
 — 17. Maxwell. 248 
 
 — 0. Sims, 1G0 
 
 — 17. Wood, 246, 252 
 Rich v. Doane, 446 
 
 — v. Lord, 442 
 Richard v. Brohm, ISO 
 Richards v. Daily, 215 
 
 — v. Delbridi!;e, 169 
 Richardson v. Duncan, 521 
 
 — 17. Hickman, 386 
 
 — 17. Pierce, 251 
 
 — v. Richardson, 169 
 
 — v. Rowland, 296 
 
 — v. Strong, 77 
 
 — 17. Williamson, 232 
 
 Riche 17. Ashbury Ry. Carriage Co., 96, 
 
 99, 106. Ill 
 Richmond, Adm'r., Petitioner, 571 
 Richmond 17. Aiken, 570 
 
 — v. Woodward, 435 
 Ridault v. Wales, 490 
 Biddell 1. Johnson, 524 
 Ridgway v. Ingram, 146 
 
 — 17. Sneyd, 365 
 
 — v. Wharton, 24 
 Ridley v. Moore, 244 
 Riesz's Appeal, 474 
 Riggs v. Cage, 236 
 Riley 17. Jordan, 320 
 Ringo v. Binns, 252 
 Ripley 17. Gelston, 522 
 Risch 17. Von Lilientbal, 488 
 Riser v. Snoddy, ->71 
 Rishton 17. Whutmure, 146 
 Ritchie v. Smith, 262 
 Rittenbouse v. Tomlinson, 439 
 Bitter's Appeal, 571 
 
 Ritter v. Railroad Co., 254 
 
 River Wear Comm'rs. 17. Adamson, 259 
 
 Rivers v. Gregg, 51 
 
 — v. Mi ss" Assignee, 284 
 
 — v. Rivers' Ex y rs., 308 
 Robb 17. Mu:!ge, 198 
 Boberts 17. Berry, 444 
 
 — v. Bury Comm'rs., 346, 372 
 
 — v. Carter, 207 
 
 — 17. Griswold, 158 
 
 — d. Smith, 26 
 
 — 1). Wiggin, 42 
 
 — 17. Plaistead, 488 
 Robbins v. Eaton, 42 
 Robinson v. Barrows, 341 
 
 — v. Bland, 334, 337 
 
 — v. Buck, 255 
 
 — v. Davison, 1 73, 368, 880, 410 
 
 17. _ 
 
Mr 
 
 TABLE OF CASES. 
 
 Robinson v. Gould, 521 
 
 — v, Hoskins, 42 
 
 — v. L' Jingle, 358 
 
 — v. Mancfell, 308 
 
 — v . Mollett, 252 
 
 — v. Page, 439 
 
 — •». Peyton, 573 
 
 — v. Reynolds, 59 
 
 — v. "Weeks, 41, 42 
 
 — v. Willougbbv, 446 
 Eobson v. Dodds, 107, 201 
 
 — • u. Drummond, 189, 409 
 Eoby v. West, 200 
 Eockafellow v. Newcomb, 525 
 Roddam v. Morley, 569, 573 
 Rodes v. Patillo, 284 
 Rodgers v. Bass, 282, 284 
 
 — v. (Jomptoir d'Escompte, 513 
 Rodman v. Thalheimer, 490 
 
 — v. Zilley, 79 
 Rodriguez v. Bienvenu, 275 
 Roe v. Hulbert, 129 
 
 — v. Tran marr, 437 
 Rogers v. Atkinson, 438, 448 
 
 — v. Gibson, 201 
 
 — v. Gosnell, 198 
 
 — v. Hadley, 440 
 
 — v. Hanson, 421 
 
 — v. Higgins, 508, 562 
 
 — v. Huie, 385 
 
 -- u. Ingham, 396, 398 
 
 — v. Lafayette Agricultural "W'ks., 
 108 
 
 Rogers v. Lockett, 252 
 
 — v. March, 226 
 
 — v. Phillips, 59 
 
 — v. Place, 401, 
 
 — a. Rogers, 571 
 
 — v. Salmon, 498 
 
 — v. Skipworth, 385 
 
 — o. Walker, 406 
 Rolfe v. Flower, 190 
 Roll v. Raguet, 290 
 
 Rolling Stock Co. v. Railroad Co., 253 
 Roman v. Mali, 332, 526 
 
 — v. Peters, 250 
 
 Rooke v. Lord Kensington, 436, 454 
 Roper v. Clay, 481 w- 
 
 — v. Holland, ;600 
 
 — . v. Trustees,, 470 
 Roquemore v. Alloway, 320 
 Rose v. Gould, 571 
 Rosenheim v. Insurance Co., 466 
 Rosenthal v. Mayhugh, 62 
 Rosewarne v. Billing,, 265 
 Rosher v. "Williams, 161, 541 
 Ross v. Doland, 402 
 
 — v. Green, 265 
 
 — Sadgbeer, 313; 
 
 — v. Singleton, 70 
 llossiler v. Miller, 24, 25, 145 
 
 Rossiter v. "Walsh, 535 
 Rossman v. McFarland, 260 
 Roundtree v. Baker, 275, -337 
 Roussillon v. Roussillon, 313, 315, 335- 
 Routledge v. Grant, 8 
 Rovegno v. Deffarari, 419 
 Rowe !i. Stevens, 2-32 
 
 — v. Williams, 294 
 Rowley v. Bigelow, 390, 513 
 Royal v. Lindsay, 162 
 
 Royal British Bank v. Turquand, 109 r 
 
 111, 133 
 Rubidoex v. Parks, 532 
 Ruble v. Massey, 371 
 Rucker ■». Donovan, 390 
 Ruckman v. Alwood, 446 
 
 — v. Bergbolz, 262 
 
 — v. Bryan, 319 
 
 — v. Lightner's Exr's., 320 
 Rudolph v. Winters, 277 
 Rudy v. Ulricb, 525 
 
 Ruffler v. Womack, 446 
 Ruffles v. Alston, 273 
 Ruggles v. Brock, 515 
 
 — Insurance Co., 467 
 Ruiz v. Norton, 227, 228 
 Rumball v. Metropolitan Bank, 214- 
 Rumsey v. Berry, 277 
 Runnamaker v. Cordray, 161, 571 
 Rupley v. Daggett, 419 
 
 Rupp v. Sampson, 252 
 Rusk n. Fen ton, 70.. 82, 406, 584 
 Russell's Appeal, 530 
 Russell v. Branbam, 495 
 
 — v. Buck, 571 
 
 — v. Cook, 166 
 
 — v. Da Bandeira, 372 
 
 — v. Southard, 446 
 
 — v. Stuarti i75, 180 
 
 — v. Thornton, 10 
 
 — u. "Wakefield "Waterworks Co„ 
 108 
 
 Russell v. "Wiggin, 186 
 Rust v. Larue, 296. 
 Rutherford v. Mclvor, 394 
 Ryall v. Rowles, 202, 265, 801 
 Ryan ■». Ashton, 526 
 
 — v. Dayton, 370 . , 
 
 — v. Railway Co., 252 
 Ryder v. Hulse, 59 
 
 — v. "Wombwell, 48, 50, 51 
 Ryer v. Stockwell, 175, 180 
 Ryno v. Darby, 439, 
 
 Sackwille, "West, v. Viscount Holmes- 
 dale, 456 
 Safford v. Grout, 499 
 Salbadore v. Insurance Co., 175 
 Sale v. Lambert, 145 
 Salmon Falls M'f g. Co. v, Goddard, 145- 
 
TABLE OF CASES. 
 
 lxv 
 
 :Salmon Palls M'f g. Co. v. Portsmouth 
 
 Co., 435 
 :Salomons v. Laing, 300, 113 
 .Salter v. Bradshaw, 550, 551 
 
 Sammsns v. Hallo way, 587 
 
 Sampson v. Bowdoinham, etc., Corp., 110 
 
 Sampson v. Shaw, 828,, 330 
 
 San Antonio v. Lewis, 133 
 
 — v. Mehaffy, 94 
 Sanborn v. Flagler, 145 
 
 '— v. Little" 207 
 
 — v. Murphy, 393 
 
 — v. Neal, .233 
 Sanders v. Classon, 198 
 
 — v. St. Neots' Union, 136 
 .Sanderson u . Aston, 250, 251 
 
 — v. Graves, 81, 580, 588 
 
 — v. Morgan, 283 
 Sands v. Insurance Cd , 282 
 
 -Sanger v. Sanger, 72 
 Santos v. Illidge, 334, 336, 344 
 Sarter v. Gordon, 542 
 Sasportas v. Jennings, 521 
 -Satterthwaite v. Emley, 583 
 -Saufley v. Jackson, 534 
 Saulet v. Trepagnier, 251 
 launders v. Stewart, 446 
 Savage v. Mason, 219 , 
 
 — v. Stevens, 482 
 
 — v. Tyers, 434 ■■ 
 "Savery v. King, 531, 534, 562 
 
 Savile v. Savile, 542 
 
 Savin v. Hoylake Ry. Co;, 266 
 
 .Sawyer v. Hovey, 392, 453 
 
 — v. Lufkin, 77 
 
 — v. Prickett, 496 
 
 — v. Taggart, 277, 325 
 Saxon Life Assce. Soo., Ee, 397 
 
 .Sayles v. Sayles, 292 
 Scales v. Ash brook, 395 
 Sealtock v. Harston, 218 
 -Scanlan v. Cobb, 406 
 .Scarlett v. Stein, 444 ■ 
 Scarpellini v. Atcbesen, 570 
 Schackelford v. Hall, 308 
 .Schermerhorn v. Talman, 331 
 
 — v. Vanderheyden, 196 
 .Sehenks v.' Strong; 55 
 Schimmelpennioh v. Bayard, 186 
 ^chintz v. McManamy, 402 
 
 Schmaltz v. Avery, 235 
 Schmitheimer v. Eis'eman, 56, 584 
 ,Schnell v. Nell 158 
 Scbofield v. Tompkins, 448 
 Scholefleld v. Templer, 515, 517 
 Scholey v. Central Ry. Co. of Venezu- 
 
 ala. 507 
 .Scholfield v. Eichelberger, 281 
 ■Schomp v. Schenk, 296, 594 
 School District IS o. 1 v. Dauchy, 356, 
 
 362 
 
 School Trustees v. Bennett, 356 
 Sohotsmans v. Lancashire & Yorkshire 
 
 Ry. Co., 390 
 Schulte v. Hennessy, 371 ' 
 Schultz v. Johnson's Adm'r, 367 
 Schuyler v. Hoyle,. 59 
 Schuylkill County v. Copley, 401 
 Schwartz v. Saunders, 364 
 Schweizer v. Tracy,- 513 
 Scobey v. Ross, 296 ■ . 
 Scofleld, etc , Co. v. State, 87, 503 
 Scollans v. Flynn, 265 
 Scotson v. Pegg, 163 
 Scott v. Avery, 294 
 
 — v. Buchanan, 38 
 
 — v. Duffy, 337 
 
 — v. Duncan, 455 
 
 — o. Lord Ebury, 233, 234 
 
 — v. Fields, 444 
 
 — v. Freeland, 252 
 
 — u. Gillmore, 598 
 
 — v. Littledale, 416 
 
 — v. Corp. of Liverpool, 294 
 
 — o. Pilkington, 185 
 
 — ». Tyler,' 807 
 Scotten v. State, 331 
 
 Scottish N. E. Ry. Co. v. Stewart, 
 
 104 
 Scovill v. Barnex, 540 
 Scranton v. Clark, 415 
 
 — „. Stewart, 70 
 Scribner v. Collar, 252 
 Scully v. Kirkpatrick, 378 
 Seabury v. Grosvenor, 274 
 Seager v. Aston, 570 
 Searing v. Searing, 59 
 Sears v. Hotchkiss, 108 
 
 — v. Railroad Co., 178, 180 
 
 — v. Shafer, 535, 561 
 Seaton v. Grant, 108, 201 
 Seaver v. Phelps, 82 
 Sedgwick v. Stanton, 295 
 Seegar v. Edwards, 254 
 Seiber v. Price, 52 L 
 Seig v. Acord's Ex'r., 571 
 Seipel v. Insurance Co., 372 
 Selby v. Jackson, 76 , 
 
 Self ». Cordell, 144 
 Seligman v. Le Boutillier, 293 
 Selma v. Mullen, 133 
 Selsey, Lord, v. Rhoades, 535 
 Semmes v. Insurance Co., 355 
 
 — v. Worthington, 581 
 Sessons v. Sessons, 434 
 Seton v. Slade, 443, 444. 
 Setter v. Alvey, 320 
 Severance v. Kimball, 521 
 
 Sewell v. Royal Exchange Assce. Co. r 
 
 326 
 Seymour v. Bailey, 283 
 
Ixvi 
 
 TABLE OF CASES. 
 
 Seymour v. Delancy, 542 
 Shaddle v. Disbrougb, 542 
 Shadwell v. Shadwell, 163 
 Sbaeffer v. Sleade, 512 , 
 Shaffer v. McKee, 212 
 Shaklett v. Polk, 2.81 
 Shand.». Dli Buisson, 73 
 Shannon v. Marroaduke, 252 
 Sharington v. Strotton, 155 
 Sharman v. Brandt, 235, 252 
 Sharp v. Leach, 514 
 
 — v. Tavlor, 285, 325, 329 
 
 — v. Teese, 248 
 Sharpe v. Foy, 70, 584 
 Sharpies v. Adams, 206 
 
 Sharpley v. Louth & East Coast By. Co., 
 
 507 
 Shattock v. Shattock, 66, 73 ■ 
 Shattuck v. Gay, 453 ■ 
 
 — v. Green, 415 
 Shaw's claim, 242 
 Shaw v. Coffin, 55 
 
 — c. Foster, 194 
 
 — v. Jeffery, 249 
 
 — v. Kailroad Co., 220 
 
 — v. Eeed, 290 
 
 — v. Spoon er, 290 
 
 — o. Thackray, 79 
 
 — v. Thompson, 77 . 
 
 — v. Woodcock, 522, 578 
 Shealy v. Toole, 158 
 Sheehan v. Davis, 131 
 Sheehy v. Adarene, 144 
 Sheets v. Selden,.227 
 Sheffield v. Ladue, 232, 233 
 Sheffield Nickel Co. v. Unwin, 512 
 Shelby v. Guy, 574 
 
 Sheldon v. Capron, 415 
 
 — v. Fairfax, 133 ,,. , 
 Shellard, Ex parte, 73, 588 
 Shelly v. Nash, 550 
 Shelthar v. Gregory, 269 
 Shelton v. Johnson, 591 
 Shenku. Mingle, 268 . 
 Shepard v. Ehodes, 158 
 Shepherd v. Bevin, 542 
 
 Sheppard v. Oxenford, 329 , . ; , « ..' 
 
 Shepperd v. Sawyer, 265 ■ 
 Sherburne v. Shaw, 145 
 .Sherfy v. Argenbright, 284 
 
 — v. Graham, 393 
 Sherley v. Biggs, 303 
 Sherman v. Kitzmiller, 25 
 Sherraden v. Parker, 251 ' 
 Sherwood v. Sherwood, 459 
 Shewalter v. Pirner, 97 
 Ship's case, 417 
 Shipman v. Seymour, 490 
 Shirts v. Overjohn, 402 
 Shively v. Welch, 453 
 Bhivers v. Simmons, 70 
 
 Short v. Price, 168 
 
 — v. Stotts, 143 
 
 Shorter *. Cobb, 275 , 
 
 Shrove v. Brereton, 448 
 
 Shreves v. Allen, 212 
 
 Shrewsbury, Earl of, v. u 7S. Stafford- 
 shire By. Co., 288 
 
 Shrewsbury & Birm. By. Co. v. L. &; 
 
 N. WBy. Co., 101, 104, 114 ' 
 Shropshire v. Borai 41 
 Shuey v. United' States, 175, 180, 186 
 Shufeldt v. Pease, 513 
 Shupe v. Galbreath, 10, 166 
 Shurtleffw. Millard, 42 
 Sibley v, Lumbert, 572 
 Sidwell v. Evans, 166 
 Silber Light Co. v. Silber, 108 
 Silk Mfg. Co. v. Campbell, 108 
 Sillem v. Thornton, 468 
 Simms v. McLure, 82 . 
 Simonds-j!. Heard, 225 
 Simons v. G. W. By. Co., 403 
 
 — v. Patchett, 233 
 
 — *. Vulcan Oil Co., 252, 481 
 Simpson v. Denison, 106 
 
 — v. Eggi-ngton, 41,0 
 
 — v. Lord Howden, 268, 288 
 
 — v. Lamb, 296, 298, 299 ", 
 
 — v. Nance, 143 
 
 — v. Simpson, 270 
 
 — u. Westminster Palace Hotel Co^. 
 101 
 
 Sims v. Bond, 228 
 
 — v. Hutch ins, 578 
 Simson v. Brown, 198 
 Sinclair v. Bradley, 142 
 
 — v. Healy, 513 
 
 — 1). Bichardson, 142 
 Singleton v. Bremar, 268 
 Singleton's Adm'r u. Kennedy, 491 
 Sinnott«. Mallin, 363 
 
 Sismey v. Eley, 269, 
 Sisson v. Donnelly, 435 
 Sistermans v. Field, 265 
 Skeate v. Beale, 521 
 Skeet v. Lindsay, 572 
 Skiff w. Johnson, 320 
 Skilbeck v. Hilton, 443, 512 
 Skillet* v. Fletcher, 250 
 Skinner v. Henderson, 330 
 
 — v. Maxwell, 41 
 Skottowe v. Williams, 517 
 Skyring v. Greenwood, 397 
 
 Slark v. Highgate Archway Co., 103,. 
 
 213 - " 
 
 Slator v. Brady, 38, -56 
 
 — \. Trimble, 42' 
 Slaughter's Adm'r. v. Gerson^ST 
 Slim v. Croucher, 482, 484, 498. 
 Sloman v. Walter, 447 
 
 Slutz v. Desenberg, 446 
 
TABLE OF CASKS. 
 
 lxvii: 
 
 Small v. Boudinot, 518 
 Smalley v. Greene, 144, 411 
 Smart v. "West Ham Union, 137 
 Smethurst v. Mitchell, 229 
 Smiley v. Bell, 202 
 Smith's case, 480, 501, 504, 585 
 Smith o. Applegate, 288 
 
 — v. Arnold, 262 
 
 — 17. Atwood, 521 
 
 — 17. Bartholomew, 181 
 
 — 17. Beatty, 492 ' 
 
 — v. Bromley, 331 
 
 — 17. Cartwright, 1 137 
 
 — u. Cheese, 147 
 
 — 17. Clarke, 493 
 
 — 17. Collins, 252 
 
 — d. Countryman, 492 
 
 — v. Cut; 331 
 
 — i7. Doafc, 470 
 
 — 17. Eggington, 218 
 
 — 17. Evans, 42 
 
 — 17. Godfrey^ 320, 335 
 
 — 17. Gveely, 448 
 
 — v. Green, 583 
 
 — 17. Greenlee, 310 
 
 — 17. Hughes, 400, 422, 430, 492, 499 
 
 — 17. Iliffe, 456 
 
 — 17. Jameson, 194 
 
 — 17. Jordan, 450, 453 
 
 — 17. Kay, 499. 523, 524, 535, 538 
 
 — 17. Ledyard, 186 
 
 — i7. Lihdo, 263, 342 
 
 — 17. Livingston. 212, 265 
 
 — i7. Mawhood, 263 
 
 — ». McLeod, 251 
 
 — o. McNair, 465 
 
 — 17. Moore, 175> 
 
 — v. Morse, 160 
 
 — i7. Neale,144, 145 
 
 — 17. Owens, 247 
 
 — 17. Penn, 396 
 
 — 17. Peoria Co., 250 
 
 — 17. Railroad Co., 293, 294, 372, 393 
 
 — 17. Richards, 484 
 
 — 17. Sayward, 143 
 
 — 17. Sheely, 97 
 
 — 17. Sherman, 370 
 
 — 17. Silence, 62 
 
 — 17. Smith, 256, 265 
 
 — 17. Adm'r. of Smith, 579 
 
 — 17. Sorby, 254 
 
 — 17. Steele,- 251 , 
 
 — ■„. Sterritt,' 206 
 
 — 17. Townshehd, 252 
 
 — v. Tyler, 161 
 
 — 17. Wehster, 25 
 
 — B. Wbeatcroft, 408 
 _ 17. Whilden, 161 
 
 — v. White, 320 
 
 — 17. Williams, 438 / 
 Smitherman «. Sanders, 320 
 
 Smock 17. Pierson, 158 
 Smont 17. tl-berry, 236, 482 
 Smull K. Jones, 310 
 Smurthwaite it. Wilkins, 221 
 Smyth 17. Griffin, 268 
 Snavely 17. Pickle, 446 
 Snell 17. Dwight, J44, 329 
 
 — 17. Insurance Co., 395 
 
 — 17. Ives, 198 
 Snider 17. Newsom, 308' 
 
 — 17. Willey, 290, 318 
 Snow 17. Insurance Co., 467 
 Snowman 17. Harford, 443 
 Snyder it. Laubacb, 82 
 
 — 17. Reno, 465 
 
 Society of Practical Knowledge 17. Ab- 
 bott, 89, 90 
 
 Society in Troy 17. Perry, 182 
 
 Sohier 17. Loring, 250, 251 
 
 Solinger 17. Jewett, 423. 
 
 Solomon 17. Dreschler, 262 
 
 Solomon's Lodge 17. Montmollin, 131 
 
 Somerby 17. Buntin, 144 
 
 Sommersett's case, 316, 336 
 
 Sooy ads. State, 469, 470 
 
 Sortwell 1;. Hughes, 320 
 
 Sottomayor 17. JJe Barrbs, 258 
 
 Souch 17. Strawbridge, 580 
 
 South Baptist Soc. 17. Clapp, 132 
 
 Southallw. Rigg, 398, 553 
 
 Southampton, Lord, 17. Brown, 195, 226- 
 
 Southey 17. Sherwood, 274 
 
 South of Ireland Colliery Co. 0. Wad- 
 dle, 133 
 
 South Wales Ey. Co. v. Redmond, 104 
 
 South Yorkshire, &c, Co. 17. G. N. Ry. 
 Co., 102, 107 
 
 Southwell 17. Bowditeh, 227 
 
 Spackman 17. Evans, 112 
 
 Spafford 17. Warren, 70 
 
 Spaids 17. Barrett, 521 
 
 Spain 17. Hamilton's Adm'r., 204 
 
 Spalding 17. Crawford, 521 
 
 — <7. Preston, 244 
 
 — 17. Rosa, 366, 368 
 Sparenburgh 17. Bannatyne, 283 
 Sparks i>. Pico, 570 
 Sparling 17. Brereton, 590 
 Spear 17. Orendorf, 580 
 Spears 17. Hartley, 570 
 Spedding 17. Nevell, 233 
 Speer 17. Bidwell, 393 
 
 Spence 17. Chodwick, 358 
 
 — u. Steadman, 446 
 Spencer's case, 217, 218 
 
 Spencer 17. Harding, 176, 180, 184 ••V" 
 
 — 17. Spencer, 255 
 Sperry 17. Spalding, 265 
 Spicer 17. Earl, 42 . 
 
 Spiller it. Paris Skating Rink Co., 188, 
 198,233,603 
 
Ixviii 
 
 TABLE OF CASES. 
 
 Spitler v. James,, 403 
 Splidt v. Bowles, 217 
 Sporrer v. Eifler, 587 
 Sprague v. Edwards, 434 
 
 — . v. Tyson, 69 . 
 Sprott v. United States, 284, 321 
 Sprigg v. Bank, 438 
 Springer v. Toothaker, 251 
 Sprye v. Potter, 295, 296, 297 
 Spurr v. Cass, 199, 235 
 Squire v. Whitton, 174, 470 
 Squires v. Hydliff, 42 
 St. Alban v. Harding, 551 
 St. Andrew's Church's Appeal, 220 
 St. George v. Wake, 255, 256 
 St. John v. St. John, 247 
 St. Joseph «. Rogers, 94 
 tit. Louis Gas Light Co. v. St. Louis, 
 
 392 
 St. Mary's Church, case of, 132 
 Staats i>. Bergen, 252 
 Stacey v. Foss, 830 
 Stackpole v. Arnold, 438 
 Stafford, Mayor of, v. Till, 139 
 Stahlschmidt v. Lett, 571 
 Staines v. Shore, 493 
 Stamper v. Temple, 161, 175, 180 
 Stanley v. Dowdeswell, 22 
 
 — v. Jones, 296, 297 
 Stanton v. Allen, 309 
 
 — v. Eager, 390 
 
 — v. Tattersall, 424, 476 
 Starr v: Bennett, 495 
 State v. Adams, 378 
 
 — v. Allen, 378 
 
 — v. Chitty, 303 • • 
 
 — v. Cincinnati Fertilizer Co., 88 
 
 — v. Collier, 289 
 
 — v. Consolidation Coal Co;, 101 
 
 — v. Davenport, 161 
 
 — v. Ducker, 407 
 
 — v. Frank, 453 
 
 — v. G. W., &c, Mfg. Co., 88 
 
 — v. Jefferson Turnp. Co., 481 
 
 — v. Johnson-, 286 
 
 — v. Joyce, 435 
 
 — v. Kennedy, 257 
 
 — v. Murfreesboro, 88 
 
 — v. Purdy, 289 
 
 — v. Railroad Co., 88 
 
 — v. Richmond, 36 
 
 — v. Ward, 393 
 
 State Board v Railroad Co., 97 
 State Treasurer v. Cross, 182 
 Stathamw. Ferguson, 533 
 
 — v. Insurance Co., 282 
 Stead v. Nelson, 76 
 
 Steam Nav. Co. v. Weed, 97 
 Steamship Co. v. Burokhardt, 513 
 ■ Stearns v. Barrett, .313 
 
 — u. l^elker, 296 
 
 Stearns v. Hall, 31 
 Stebbins v. Palmer, 370 
 Stedman v. Hart, 77 . ' 
 Stedwell v. Anderson, 395 
 Steeds. Calley, 535. 
 Steele v. Biggs, 444 
 
 — v. Branch, 443 
 
 — v. Curie, 320 
 
 — v. Harmer, 116 
 
 — i3. McElroy, 226 
 
 — v. Williams, 522 
 Steers v. Steamship Co., 30 
 Stees v. Leonard; 356 
 Steman v. Harrison, 186 
 Stephen v. Beall, 69 . 
 Stephens v. Venables, 207 
 Stephenson v. Insuaance Co., 294 
 Sterling v. Sinnickson, 307 
 Sternberg v. Bowman, 247 
 Sternberger v. McGovern, 474 
 Sterry ^.'Clifton, 289 
 
 Stetson v. Insurance Co., 468 
 Stevens, Ex parte, 147 
 Stevens v. Benning, 173, 412 
 
 — v. Brennan, 513 
 
 — v. Coon, 354 
 
 — u. Cooper, 438 
 
 — v. Giddings, 471 
 
 — v. Gourley, 263 
 
 — v. Railroad Co., 93 
 Stevenson v. Gray, 257, 335 
 
 — v. McLean, 10 
 
 — v. Newnham, ,513 
 Stewart's Appeal, 101 
 
 Stewart's ease (Agriculturists' Cattle 
 
 Ins. Co.), 112 
 Stewart's case (Russian Vyksounsky 
 
 Ironworks), 417 
 Stewart v. Alliston, 417 
 
 — v. Bradford, 167 
 
 — v. Eddowes, 146, 433 
 
 — v. Emerson, 490 
 
 — v. Keteltas, 164, 371 
 
 — o. Loring, 368 
 i — v. Parker, 251 
 
 — v. Stewart, 396, 427 
 Stidham v. Sanford, 163 
 Stikeman v. Dawson, 55, 57 
 Stilsou v. Stilson, 292 
 Stilwell v, Aaron, 251 
 
 — -o. Wilkins, 539 
 Stimpson v. Maiden, 386 
 Stines v. Dorraan, 220 . 
 Stitt v. Huidekopers, 8 
 Stdekdale v. Onwhyn, 274 
 Stacker v. Insurance Co., 466 
 Stockham v. Stockham, 18 
 Stocks v. Dobson, 205 , 
 Stockton v. Hall, 206 
 
 — v. Turner, 435 
 Stockwell v. Hunter, 358 
 
TABLE OF CASES. 
 
 lxix" 
 
 Stoddard v. Ham, 409 
 Stoddart v. Smith, 472 
 Stollenwerck v. Thatcher, 220 
 Stone v.- Bellows, 448 
 "'— ■*, Clarke, 392 
 
 — v. Covell, 482 
 
 — v. Dennis, 298 
 
 — v. Dennison, 42, 580 
 
 — v, Denny, 482 
 
 — v. Godfrey, 896 
 
 — v. Haokett, 1 69 
 
 — v. Halo, 4S0 
 Stoner v. Wiser, 254 
 Stoney v. Insurance Co., 115 
 Storey v. Lo -an, 186 
 Storm v. Smith, 415 
 
 — v. Stirling, 200 
 Stoutenburg v. Lybrand, 292 
 Stoutenburgh v. Konkle, 507 
 Stover v. Bounds, 446 
 
 — v. Eyclesheimer, 302 
 
 — v. Mitchell, 396 
 Stow v. Steel, 434 
 Stowe v. Flagg, 97 
 Stowell v. Eldred, 225, 226 
 Strange v. Brennan, 296, 298 
 Strauss v Insurance Co., 97 
 
 — v. Wessell, 220 
 Strawbridge v. Railroad Co., 250 
 Stray v. Russell, 354 
 
 Street v. Blay, 414 
 
 — v. Rig'by, 293 
 
 Stribley v. Imperial Marine Ins. Co., 
 
 466, 467 
 Strickland v. Turner, 426 
 Stringfield v. Heiskell, 412 
 Strong v. Darling, 262 
 
 — v. Menzies, 255 
 Stroud v. Smith, 289 
 Stuart v. Baker, 42 
 
 — v. Landers, 129 
 
 Stubbs v. Holywell By. Co., 370 
 Stump v. Gaby, 562 
 Sturge v. Starr, 501 
 
 — u. Sturge, 540 
 Sturlyn v. Albany, 158 
 
 Suggett's Adm'r. v. Casson's Adm'r, 144 
 
 Suit v. Woodhall, 320 
 
 Sullivan v. Collins, 167 
 
 ; ummers v. City Bank, 64 , 
 
 — v. Griffiths, 539 
 
 — v. Vaughn, 158 
 Sumner v. Summers, 290 
 
 — v. Williams,. 436 
 Supervisors v. Schenk, 115 
 Surcome v. Pinniger, 581 
 Susquehanna, etc., Co. v. Insurance Co., 
 
 110 
 Susquehanna, etc., Co. v. People, 88 
 Sussex Peerage case, 258, 259, 260 
 Sutton v. Tyrrell, 371 '■'- 
 
 Sutton v. Warren, 335 
 
 Sutton's Hospital Case, 97, 98, 105, 114 
 
 Suydam v. Vance, 251 
 
 Swain ■». Seamans, 31, 439 
 
 Swaine v. Perrine, 256 
 
 Swaisland v. Dearsley, 476 
 
 Swan, Ex parte, 215 
 
 Swan v. Chorpenning, 310 
 
 — v. North British Australasian Co., 
 212, 402, 403 
 
 Swan v. Scott, 324 
 Swanzey v. Moore, 580 
 Sweaney v. Hunter, 161 
 Sweet v. Brackley, 573 
 
 — v. Lee, 578 
 
 — v. Parker, 446 
 Swift v. Bennett, 53 
 
 — v. Jewsbury, 502 
 
 — v. Kelly, 482, 493, 494 
 
 — v. Swift, 304 
 
 — v. Tyson, 212 
 
 — v. Wintherbotham, 504 
 Swindon Waterworks Co. v. Wilts. & 
 
 Berks. Canal Nav. Co., 95 
 Swire v. Francis, 486, 502 
 
 — v. Redman, 251 
 Sykes v. Beadon. 213, 329 
 
 — o. Chadwick, 159 
 Symes v. Hughes, 331 
 Symmes v. Frazier, 175, 180 
 
 Tague v. Hayward, 580 
 
 Taintor v. Prendergast, 226 
 
 Tait v. Insurance Co., 282 
 
 Taite v. Gosling, 220 
 
 Talbot v. Staniforth, 534, 551 
 
 Talbot's Devisees v. Hooser, 539 
 
 Talnott v. Henderson, 490 
 
 Talley v. Robinson's Assignee, 542, 587 
 
 Tall man v. Coffin, 218 
 
 Tapley v. Tapley, 521 
 
 Tappenden v. Randall, 330 
 
 Tarbell v. Bowman, 423 
 
 Tarleton v. Baker, 380 
 
 — v. Bank, 283 
 Tarner v. Walker, 175 
 Tasker v. Bartlett, 378 
 
 — v. Small, 189 
 Tate v. Jones, 581 
 
 — v. Williamson, 525, 532, 536 
 Tatham v. Clark, 284 
 
 Tatum v. Kelly, 320 
 
 Taussig v. Hart, 252, 253 
 
 Tayloe v. Merchants' Fire Ins. Co., 17 
 
 Taylor, Ex parte, 42, 45 
 
 Taylor v. Ashton, 482 ' 
 
 — v. Blanchard, 313 
 
 — v. Bowers, 330 
 
 — v. Brewer, 26 
 
 — v. Caldwell, 386, 362, 370, 377 
 
lxx 
 
 TABLE OF CASES. 
 
 'Taylor «. Castle, 216 
 
 — v. Chester, 328 
 
 — v. Chichester and Midhuxst Ey. 
 Co., 96, 103, 118, 341 
 
 'Taylor v. Coti rell, 521 
 
 — v. Crowland Gas Co., 262 
 
 — v. Gilman, 442 
 
 — v. Gould. 571 
 
 ■ — v. Hutchins, 282 
 
 — v. Jaques, 290 
 
 — v. Jones, 'JO 
 
 — u. Leith, 482, 483 
 
 — v. Lendey, 330' 
 
 — v. Longworth, 443, 444 
 
 — v. Manners, 159 
 — . v. Mayhew, 275 
 
 — v. Meads, 65 
 
 — e. Parry, 189 
 
 — v. Patrick, 166 
 
 • — • v. Portington, 26 
 
 — v. Pugb, 255 
 
 — v. Tain tor, 378 
 
 — 17. Taylor, 525 
 Temple v. Johnson, 5S1 
 Tennant v. Elliott, 329 
 Tennent 17. Bank, 514 
 
 — 17. Tennents, 539 
 Tenny v. Lumber Co., 132, 435 
 Terrett v. Taylor, 85 
 
 Territt 17. Bartlett, 320 
 Terry 17. Bissell, 421 
 
 — a. Hopkins, 255 
 
 — v . Tuttle, 405, 410 
 Tesson v. Insurance Co., 450 
 Teutohia, The, 366 
 
 Texas v. White, 284 
 Thacker v. Hardy, 26& 
 Thallbimeru. Brinokerboff, 296, 303 
 Thames Haven, etc., Co. 17. Hall, 137 
 Thatcher 17. England, 175 
 
 — v. Morris, 335 
 Thayer 17 Burohard, 160 
 
 — 17. Daniels, 204 
 
 — 17. Luce, 146 
 
 — 17. Mann, 570 
 Thibodeau 17. Levasseur, 573 
 Theidemann v. Goldschmidt, 212 
 Thiis v. Byers, 356 
 
 Thomas 17. Atkinson, 229 
 
 — 17. Brown, 62, 270, 578 
 — 1 i7.Coultas, 509 
 
 — 17. Cronise,> 820 ■ 
 
 — 17. Davis, 442 
 
 — 17. McCan'n, 484 
 '"— ' 17. Eailroad Co., 101 
 
 — 17. llichmond, 331 
 
 — 17. Pviiddeli; 402 
 Thompson v. Bertram, 198 
 
 — 17. Dulles, 445 . 
 
 — 17. Gordon, 198 
 
 — v. Hudson, '447 
 
 Thompson 17. Kelly, 226 
 
 — i). Lambert, 97, 106 
 
 — u. Lee, 563 
 
 — 17. Marshall. 303 
 
 — 17. Planet Benefit Building So- 
 ciety, 294 
 
 Thompson 17. Powles, 284 
 
 — 17. Reynolds, 295, 296 
 
 — 17. Eose, 490, 513 
 
 — 17. Stevens, 27 
 
 — 17. Thompson,' 198 
 
 — 17. Universal Salvage Co., 116 
 
 — 17. Whitmore, 454, 456 
 Thomson 17. Davenport, 225, 229 
 
 — 17. Eastwood, 518 
 
 — 17. James, 10, 14, 18 
 Thorington 17. Smith, 284 
 Thorn 17. Mayor of London, 357 
 Thornton 17. Illingworth, 36 
 
 — 17. Kempster, 418 
 
 — 17. Wynne, 421 
 Thoroughgou-d's case, 401, 404, 459 
 Tboroughgood v. Walker, 448 
 Thursby v. Plant, 218 
 Thurston v. Ludwig, 439 
 
 — v. Percival, 295, 296 
 
 — 17. Spratt, 415 
 Thweatt 17. McLeod, 508 
 Tibbetts 17. Flanders, 578 
 Tichener, Ee 203 
 Tiernan 17. Poland, 443 
 Tileston 17. Newell, 84 
 Tilley 17. Thomas, 444 
 Tillman 17. Searcy, 303 
 Tisdale 17. Bailey, 255 
 Tison 17. Howard, 220 
 Titcomb 17. Wood, 513 
 
 Tobey 17. County of Bristol, 293 
 Todd 17. Grove, 527, 534 
 
 — v. Myers, 591 
 
 — 17. Eafferty's Adm'r., 244, 329 
 
 — 17.' Railroad Co., 70 
 Toker v. Toker, 528-. 
 Tollman 17. Loomis, 253 
 Tome 17. Eailroad Co., 503 
 Tompkins 17. Dudley, 356 
 Tool Co. 17. Norris, 286 
 Topham 17. Morecroft, 600 
 Torrance 17. Bolton, 424, 473, 476 
 Torre 17. Torre. 456 < 
 Tottenham 17. Emmet, 548 '-; 
 
 — 17. Green, 555, 556, 562 
 Totterdell 17. Pareham Brick Co., 109- 
 Touche 17. Metropolitan Ey. Ware- 
 housing Co v 198 
 
 Towle 17. Leavitt, 179,- 493 
 Tbwtio 17. Wiley, 55 
 Townsend's case, 16 
 Towhsend 17. Cbwles, 496 
 
 — ■ 17. Crowdy, 394- 
 
 — i7. Hargraves, 575 
 
TABUE OF CASES. 
 
 Ixxi 
 
 "Townsend v. Jemison, 573 
 "Townshend v. Stamgroom, 448, 449, 453 
 Towsley v. Moore, 680 
 
 Tozer v. Saturlee, 77 
 "Traoey v. Stiekett, 540 
 
 Tracy v. Tulmadge, 320, 331 
 Trafford v. Hall, 215 
 Traill v. Baring 498, 500 
 Train v. Gold, "158, 160 
 
 Transportation Co. v. Dater, 30 
 "Traub v. Milliken, 228 
 
 Travers v. Crane, 236 
 
 Treat v. Smith, 251 
 Trevor v. Wood, 18 
 
 Trisre; v. Lavallee, 167 
 Trimble v. Hill, 265, 330 
 
 — v. Strother, 198 
 Trimyer v. Pollard, 571 
 Tripp v. Hasceig, 453 
 
 Trist v. Child, 288 
 
 Tritt's Adm'r. v. Colwell's Adm'r., 205 
 Trott v. Insurance Co., 294 
 Trotter v. Hughes, 198 
 
 — v. Strong, 250 
 Trout v. Goodman, 448 
 
 Trovinger v. McBurney, 269 
 True v. Rannev, 335 
 Trull v. Eastman, 302 
 
 — v. Skinner, 446 
 Trumball v. Tilton, 247 
 Trumbull v. Brock, 161 
 Trumper v. Trumper, 253 
 
 'Trustees v. Allen, 182 
 
 — v. Mullbrd, 133 
 
 — v. Stetsoij, 182 
 
 — v. Stewart, 182 
 
 — v. Walrath, 448 
 
 — v. Wheeler, 205, 206 
 Tuck v. Downing, 487 
 Tucker v. Andrews, 255 
 
 — v. Madden, 453 
 
 — v. Magee, 412 
 
 — v. Moreland, 38, 42 
 
 — v. Honk, 167 
 
 — v. White,. 482 
 
 — o. Woods, 18 
 
 Tufts •». Gold Mining Co., 146 
 
 — v. Larned,. 453 
 Tulk v. Moxhay, 216 
 
 Tullett'B. Armstrong, 67 
 Tnpper v. Caldwell, 41, 50 
 Turnbull v. Strohecker, 571 
 Turner v. Coll-'ns, 456, 525, 562 
 
 — v. Kerr, 446 
 
 — a. Harvey, 430 '. 
 
 — v. Lucas, 225 
 
 — v. Reynall, 592. ■ 
 
 — v. Turner, 442 .■ . ' 
 Turner:* Skelton, Be, 479 
 Turnpike Co. v. Coy, 18, 160. .> ..- 
 
 — v. McNamara, 587 I .■ 
 
 Tutt v. Hobbs, 227 
 
 — u. Ido, 522 
 Tuttle v. Holland, 19, 320 
 
 — v. Rai.road Co., 93 
 Tuxbury v. Miller, 248 
 Tweddell v. Tweddell, 533 
 Tweddle v. Atkinson, 196 
 Twisleton v. Griffhh, 549 
 
 Two Sicilies, King of, v. Wilcox, 88 
 Twycross v. Grant, 481 
 Tyler v. Gardiner, 524 
 
 — o. Yates, 5F'3, 554 
 Tynte v. Hodge, 551 
 Tyson v. Tyson's Ex'rs., 526 
 
 Udell v. Atherton, 490 
 Underhill v. Horwood, 539 
 Underwood v. Hitchcox, 542 
 
 — v. Waldron, 182 
 Ungley v. Ungley, 507, 580 
 
 Union L. & E. Co. v. Railway Co., 335 
 Union Locks Co. v. Towne, 93 
 Union Mining Co. o. Bank, 131 
 United States v. Barker, 283 
 
 — v. Bradlev, 318 
 
 — v. Buford" 201 
 
 — v. Gaussen, 250 
 
 — v. Grossmayer, 281 
 
 — v. Huckabee, 521 
 
 — u. Peck, 371 
 
 — v. Van Fossen, 378 
 Unity Bank, Ex parte; 57 
 Universal Life Assce. Co., Ex parte, 209 
 Updike v. Campbell, 320 
 
 — v. True, 158 
 Upperton v. Niekolson, 445 
 
 Upton v. Engelhart, 481, 488, 495, 503, 
 
 506, 515. 517 
 Upton v. Tribileock, 481, 495, 517 
 Urquhart v. Brayton. 198 
 Usher v. McBratney,' 287 
 
 Van Arsdale v. Howard, 469 
 Vanbrunt v. Singley, 402 
 Vanbuskirk v. Insurance Co., 206 
 Vance v. Campbell's Heirs, 308 
 
 — v. Railroad Co., 87 
 Vanderhaize v. Hugues, 446 
 Van Deusen v. Sweet, 406 
 Vanderheyden v. Mallory, 71 
 Van Horn v. Hann, 77 
 Vanover v. Thompson, 290 
 Van Patton v. Beals, 82 
 Van Pelt v. Corwine, 42 
 Van Sehaik v. Railroad Co., 188 
 Vansittart v. Vansittart, 62, 271, 304 
 Van Wyck v. Allen, 465 • 
 Vason v. Bell, 194 ." ,; "•■.; 
 Vassar v. Camp, 15, 18 : •■■. 
 
lxxii 
 
 TABLE OP CASES. 
 
 Vassault v. Edwards, 145 
 Vasse v. Smith, 54, 55 
 Vaughan v. Thomas, 544 
 
 — v. Vanderstegen, 66 
 
 — v. Walker, 74 
 Vawter v. Bake!-, 226 
 Veach v. 'I hompson, 520 
 Yeazie v. Williams, 498. 503, 516 
 Veitch v. Eussell, 590, 593, 694 
 Venable v. Brown, 578 
 
 Vent v. Osgood, 42 
 
 Ven tress v. Smith, 387 
 
 Vernon v. Keys, 496, 497 
 
 Vickery v. Welch, 314 
 
 Viele v. Bailroad Co., 542 
 
 Vigers v. Pike, 512 
 
 Villa v. Rodriguez, 446 
 
 Vinar v. Insurance Co., 87 
 
 Vining v. Bricker, 264 
 
 Viser v. Bertrand, 292 
 
 Vorhees v. De Meyer, 473 
 
 Vorley v. Cooke, 404 
 
 Voss v. Bobertson, 220 
 
 Vreeland v. New Jersey Stone Co., 
 
 481, 490 
 Vrooman v. Turner, 198 
 
 W. v. B-, 332 
 
 Wade v. Kalbfleisb, 370, 493 
 Wadhams v. Gray, 169 
 "Wadsworth v. Sparpsteen, 77 
 "Wagg v. Gibbons, 62 
 Wailes v. Cooper, 388 
 "Wain v. Warlters, 145 
 Wainford v. Heyl, 76 
 Wainwright v. Bridges, 275 
 Waite v. Jones, 318 
 Wake v. Harrop, 439 
 Wakefield v. Newbon, 522 
 Walden v. Skinner, 438, 450 
 Waldo v. Eailroad Co., 481, 503 
 Waldron v. Young, 403 
 Waldy v. Gray, 388 
 Walford v. Duchess of Pieme, 61 
 Walker v. Bank, 232, 233 
 
 — v. fieal, 269 
 
 — v. Brooks, 202 
 
 — v. Christian, 227 
 
 — •„. Cronin, 188 
 — ■ v. Davis, 55 
 
 — v. Gregory, 267 
 
 — v. Hill, 142 
 
 — v. Jeffries, 319 
 
 — v. Johnson, 144 
 
 — v McKay, 207 
 
 — v. Norton, 142 
 
 — v. Palmer, 252 
 
 — v. Parker,' 521 
 
 — v. Perkins, 268 ' 
 
 — v. Smith, 526 
 
 Walker v. Stewart, 227 
 -^ v. Tuc'kur, 362,' 365 
 
 — v. Wplker,269, 270 
 
 — u. Wheatley, 1 439 
 Wall's case, 10 
 
 Wall v. Arrington, 448 
 Wallace v. Cravens, 587 
 
 — v. Mobs, 55 
 
 — v. Wallace, 534 
 Wallack v. Latham, 42 
 Wallis v. Carpenter, 418 
 
 — v. Day, 314, 316 
 
 Walsh v. Barton, 97, 145, 179, 493 
 
 — v. Bishop of Lincoln, 344 
 Walters v. Bredin, 435 
 
 Ward v. Allen, 291 
 
 — v. Insurance Co., 88 
 
 — v. Morrison, 206 
 
 — v. Smith, 282 
 Warden v. Jones, 582, 584 
 Wardwell v. Railroad Co., 252 
 Ware v. Cowles, 438, 439 
 Waring's case, 192 
 
 Warlow v. Harrison, 179, 180, 182, 184S 
 Warne v. Routledge, 70 
 Warner v. Campbell, 162 
 
 — v. Willington, 30 
 
 — v. Wilson, 372 
 
 "W aruick v. Grossholz, 142 
 Warren v. Bateheldor, 198 
 
 — v. Chapman, 318 
 
 — v. Hewitt, 265 
 
 — v. Hodge, 1 61 
 
 — v. Saxby, 593 
 
 — v. Smith, 142 
 
 — v. Stearns, 199, '201 
 
 — v. Whittaken 207 
 Warrender v. Warrender, 271 
 Warriner u. Rogers, 169 
 Warwick v. Bruce, 37, 40 
 
 — v. Cooper, 40 
 
 — v. Richardson, 246 
 Washburn v. Fletcher, 15, 18 
 Wason v. Wareing, 398 
 
 Water Commissioners v. Brown, 24 
 Waterhouse v. Jamieson, 515 
 Waterman v. Duttdn, 448 
 Water Valley Mfg. Co. •». Seaman, 481,- 
 
 499 
 Waters v. Tazewell, 308 
 Watford & Rickmansworth Ry. Co. ».- 
 
 L. &N. W. Ry.Co., 294 
 Watkins v. Baird, 521 
 
 — u. Brant, 534 
 
 — ■». Eames, 182 
 Watson, Ex parte, 57 
 Watson v. f 1 1 cock, 160, 251 
 
 — o. Atwood, 488 
 
 — v. Earl of Charlem6nt f 500 
 
 — v. Cross, 53 ' 
 
 — v. Fletcher, 244, 329 
 
TABLE OF CASES.' 
 
 lxxiit. 
 
 "Watson v. Jacobs, 142 
 
 — v. Mahan, 536 
 
 — D. Marston, 448, 541, 642 
 
 — v. Mid-Wale3 Ry. Co., 207 
 
 — v . Murray, 244, 329, 335 
 
 — v. Rodwell, 531 
 "Watts v. French, 161 
 
 — v. Porter, 206 
 Waugh v. Morris, 325, 326, 341 
 "Way's trusts, 530 
 
 "Wav v. Bast, 325 
 
 — v. Hearn, 471, 505 
 
 — v. Langley, 247 
 
 — o. "Wright; 378 
 Waymell v. Reed, 285 
 
 W. B. Steel "Works v. Atkinson, 580 
 "Weare v. Gove, 232 
 "Weathersbee v. Potter, 143 
 Weathersby v. Weathersby, 446 
 Webb, Estate of, 169 
 Webb v. Armstrong, 296 
 
 — u. Heme Bay Comm'rs, 118, 208, 
 210 
 
 Webb v. Hewitt, 251 
 
 — v. Hughes, 445 
 
 — v. Odell, 421 
 
 — v. Whiffin,216 
 Webber v. Donnelly, 19, 320 
 
 — v. Howe, 341 
 Webster's case, 417 
 Webster v. Cecil, 420 
 
 — v. Cook, 552, 554 
 
 — v. De Tastet, 305 
 — ■ v. Wyser, 410 
 
 Wedgwood v. Adams, 543 
 Weed 8. M. Co. v. Oberreich, 251 
 Weeks v. Hill, 292 
 
 — v. Hunt, 207 
 
 — v. Lippencott, 288 
 
 — „. Propert, 233 
 Weidner v. Hoggett, 227 
 Weir v. Barnett, 503 
 
 — v. Bell, 503 
 Welles v. Yates, 453 
 Wellford v. Chancellor, 252 
 Wells v. Calnan, 362 
 
 — v. Cook, 505 
 
 — v. Kingston-upon-HulV 137, 143 
 
 — i). Malbon, 63 
 
 — v. Smith, 444 
 
 — ». Stout, 269, 270 
 
 — v. Thorman, 69 
 Welsh v. Sage, 212 
 Wentworth v. Day, 175, 180 
 West v. Morse, 54 
 
 — v. Raymond, 296 
 
 — v. Reed, 446 
 Westbrook v. Harbeson, 448 
 Western v. Russell, 543 
 
 Western Bank, of Scotland v. Addie, 
 87,485,504,511 - 
 
 Western Seminary v. Blair, 132 
 Westlake v. Adams, 158 
 Westmealh v. Salisbury, 272, 273 
 Westmeath, Marquis of, v. Marchioness 
 ' of Westmeath, 269, 271, 273 
 Weston v. Hunt, 85. 
 
 — v. Savage, 424 
 
 Whaley Bridge Printing Co. v. Green, . 
 
 252 
 Whullon v. Kauffman, 436 
 Wharton v. Duncan, 251 
 
 — v. Mackenzie, 49 
 Whatman v. Gibson, 222 
 Wheat v. Cross, 10 
 Wheatley v. Lane, 201 
 Wheatley v. Slade, 475 
 Wheeler v. Kirtland, 454 
 
 — v. Smith, 540 
 
 — v. Spencer, 330 
 Wheeler's Ex'rs. v. Wheeler, 302 
 Wheelock v. Moulton, 84 
 Wheelton v. Hardisty, 467, 468, 501. 
 Whelan v. Whelan, 561 
 Wheless v. Bank, 87 
 Whelpdale's case, 520 
 Whicheote v. Lawrence, 252 
 Whincup v. Hughes, 370, 371 
 Whipple v. Barnes, 570 
 
 — v. Parker, 144 
 Whitcomb v. Josslyn, 55 
 
 — v. Whiting, 572 
 White «. AshtoD, 584 
 
 -i- v. Bank, 330, 331 
 
 — v. Bluett, 161 
 
 — ii. Buss, 260, 319 
 
 — i). Corlies, 2 
 
 — a. Cuddon 474 
 
 — v. Damon, 543, 544 
 
 — v. East Saginaw, 250 
 
 — v. Garden, 490, 513 
 
 — v. Graves, 562 
 
 — v. Hart, 275 
 
 — v. Hunter, 269 
 
 — v. Madison, 232, 238 
 
 — v. Mann, 366 
 
 — v. McGannon, 542 
 
 — v. Miller, 465 
 
 — v. Sawyer, 503 
 
 — v. Solomonsky, 142 
 
 — v. Thompson, 542 
 
 — v. White, 457 
 
 — v. Whitney, 251 
 
 — v. Wieland, 579 
 
 — v. Wiley, 204 • 
 
 — v. Yarborough, 265 
 Whiteaker v. Van Schoiack, 439" 
 .Whitehead's. Anderson, 390 . 
 
 — v. Kennedy. 526, 531 
 
 — v. Potter, 160 
 Whitfield v. Levy, 448 ',rW ■ 
 Whitman v. Merrill, 513 .' s 
 
Ixxlv 
 
 TABLE OF OASES. 
 
 "Whitman v. Weston, 454 
 
 Whitmore v. San Francisco Sav. 
 
 Union, 570" 
 j Whitnell v. Bigham, 578 
 ' Whitney v. Boardman, 465 
 
 — o. Cochran, 579 
 
 — v. Spencer, 378 
 Whitfield v. Riddle; 284 
 Whitford i>. Ohamberlin, 158 
 Whitmarshc. Ball, 42 ' 
 Whitney v. Kailroad Co., 220 
 Whitney Arms Co. v. Barlow, 97 
 Whittaker, Ex parte, 490 
 Whittemore v. Whittemore, 475 
 
 "Whitten v. Little, 206 
 Whittier v. Dana, 81 
 Wicks v. Mitchell, 68 
 Widgery v. Tepper. 59 
 Widoei;. Webb, 318 
 Wigand v. Sichel, 507 
 Wiggin ii. Bush, 248 
 
 — v. Goodwin, 439 
 Wiggins v. Day, 513 
 
 — v. Keizer, 158 
 Wight v. Kailroad Co., 488 
 
 — v. Rindskopf, 290 
 Wightmari v. Wightman, 76 
 Wilbur v. Hough, 252 
 Wilby v. Blgee, 167, 572 
 
 "Wilcox v. Bates-, 446 
 
 — v. Iowa W. University, 483 
 Wilde v. Gibson, 477, 478 
 Wilde v. Harris, 233 
 
 Wilder v. Adams, 159 
 
 — v. Cowles, 225 
 
 — v. Weakley's Est., 82 
 Wildes v. Dudlow, 143 
 Wildey v. Collier, 286 
 Wiley v. Hall, 439 
 
 — v. Starbuck, 97 
 "Wilhelm v. Caylor, 569 
 Wilkinson v. B'lowers, 570 
 
 — v. Gibson, 63 
 
 — v. Jeffers, 215 
 
 — ■». Lloyd, 354 
 
 — d. Loudonsack, 341 
 
 — v. Tousley, 330 
 Willan». Willan,436 
 
 "Willard v. Eastham, 69 
 
 — i). Stone, 40 
 "Willemin v. Dunn, 528 
 
 Willesford v. Watson, 293 
 
 William Bagaley, The, 282 
 
 Williams' case, 494, 499 
 "Williams, Ex parte, 262 
 Williams v. Bank, 283, 372 
 
 — v. Bayley, 290, 523, 538 
 
 — v. Bemis, 580 
 
 — v. Byrnes, 145, 186 '*■ •- 
 
 — v. Carle, 255 ■"■ ' '>:■':<&'{<<*•■ 
 
 — o. Carr,265, 277" ..:i'V '."' 
 
 Williams v. Carwardiu^ 174, 175, 177, 
 
 180 
 Williamsi v. Cowden, 308 
 ■ — v. Girdley, 572 
 
 — v. Given, 513 
 
 — v. Glenton, 445 
 
 — v. Hathawav, 234 
 
 — v. Hedley, 332- 
 
 — v. Holme, 207 
 
 — v. Hugunin, 69 
 
 — v. Jordan, 145 
 
 — v. King, 69 
 
 — v. Mabee, 42 
 ; — v. Moor, 40 
 
 — v. Morris, 581 
 
 — v. Oates, 257 
 
 — v. Owen, 446 
 
 — v. Protheroe, 300 
 
 — v. Kailroad Co., 288, 516; 618 
 
 — v. Robbins, 226 
 
 — v. Rogers, 143 
 . - — v. Spurr, 492 
 
 — v. Urmston, 68 
 
 — v. Vanderbilt, 366 
 
 — v. Wentworth, 77 
 Williams, app., W T heelerer, resp., 677 
 Williams v. Williams, 533 
 Williamson, Ex parte, 106 
 
 — v. Gihon, 306 
 - — v. Raney, 501 
 
 — v. Russell, 513 
 Williamsport v. Commonwealth, 118 
 Willis v. Henderson, 448 
 
 — v. Roberts. 59 
 
 — v. Thorp, 345 
 Willisoa v. Patteson, 283 
 Willmott v. Barber, 581 
 Wilson v. Cox, 473 
 
 — v. Daniel, 255 
 
 — v. Deen, 498 
 
 — v. Drumrite, 446 
 
 — v. Giddings, 446 
 
 — v. Hart, 220 
 
 — v. Lloyd, 190 
 
 — B.Oldham, 78 
 
 — v. Railroad Co., 30 
 
 — •». Randall, 423 
 
 — v. Rankin, 321 . 
 
 — v. Ray, 332 , /„ 
 
 — v. Stratton, 320 ■ r,« 
 
 — v. West Hartlepool By. Co., 106, 
 118 , » . 
 
 Wilson v. Wilson, 253,. 271, 272, 273, 
 
 435 ■ 
 
 Wilto. Ogden, 371 
 
 — *. Welsh, 55 •„,■'• • 
 Wilton v. Chambers, 590 • 
 WinchesteE v. Howard, 227, 409 
 
 — v. Nutter, 265 
 Winfield v. Henning, 220' 
 Wingate v. Hamilton, 474 
 
TABLE OP CASES; 
 
 Ixxv 
 
 Wingate-o: Ki«gi 515 
 "Winn v. Albert, 583 
 
 — v. Bull, 24 
 
 — v. Thomas, 247 
 
 Winne v. Reynolds, 472 
 
 Winpenny». French, 286 
 
 Wintermute, Ex'rs. of, v. Ex'rs. of Sny- 
 der, 539 
 
 "Winton v. Cornish, 358 
 "Wiseman v. Beake, 549 
 Wiser v. Loekwood, 42 
 Wiswall v. Hall, 448 
 
 — v. McGowan, 445 
 
 — v. Plank Road Co., 93 
 Withers by v. Sleeper, 8 
 Withrow v. Commonwealth, 378 
 Witt v. Corcoran, 293 
 Wolcott v. Mount, 465 
 
 Wolf v. G-oddard, 133 
 Wolfe v. Howes, 370 
 Womack v. Austin, 526 
 
 — v. Loran, 286 
 
 — v. McQuarry, 358 
 Wood v. Abrey, 539, 540, 541 
 
 — v. Augustine, 570 
 
 — v. Barker, 247 
 
 — o. Coman, 434 
 
 — v. Corcoran, 142 
 
 — v. Downes, 296, 298, 302 
 
 — v. Fenwick, 37, 48 
 
 — •«. Griffith, 473 
 
 — v. Humphrey, 293 
 
 — v. Insurance Co., 468 
 
 — v. Mayor, 207 , 
 
 — o, McCann, 287 
 
 — v. Partridge, 204 
 
 — v. Savage, 583 
 
 — v. Scarth, 448 
 
 — u. Tate, 138 
 
 — v. Terry, 70 
 
 — v. Wood, 330 
 Woodbury v. Blair, 234 
 
 — u. Luddy, 474 . 
 Wooden v. Perkins, 69 
 Woodfolk v. Blount, 542 
 Woodruff v. Hinman. 318 
 
 — v. McGeeheo, 227, 228 
 Woods v. Armstrong, 260, 262, 341 
 
 — v. Elliott. 571 
 
 — v. Hull, 493 
 
 — v. Wilder, '283 
 Woodward v. Barnes, 58 
 Wood worth v. Bennett, 329 
 Woolfe v. Home, 226 
 Wooliscroft v. Norton, 219 
 Wooton v. Hinkle, 310 
 Worcester v. Eaton, 320 
 Worden v. Sharp, 580 
 Work v. Cowhick, 577 
 Worley v. Tuggle, 448 
 
 Worrall v. Jacob* 271 
 Worth v. Case, 158 
 ■ Worthington v. Cowles, 465 . 
 
 — u. Curtis, 329, 343 .,.<:/>> ■< 
 
 — v. Insurant Co., 282 ,'■■ . 
 Wright's case, 480, 488, 489, 490, 491, 
 
 510 
 Wright v. Arnold, 70, 584 
 
 — v. Bartlett, 162 
 
 — v. Brown, 490 
 
 — u. Chard, 74 
 
 — v. Davenport, 421 
 
 — v. Leonard, 58 
 
 — v. Monarch Investment Build- 
 ing Society, 294 
 
 Wright v. Proud, 535 
 
 — v. Puekett, 581 
 
 — v. Bemmington, 521 
 
 — v. Snowe, 56 
 
 — v. Tehbitts, 296 
 
 — v. Tinsley, 308 
 
 — v. Oroville Mining Co., 108 
 
 — v. Ryder, 313 
 
 — v. Vanderplank, 516, 530, 562 
 ■ — v. Young, 474 
 
 Wri^ley v. Swainson, 255 
 
 Wulffc. Jay, 251 
 
 Wyatt v. Hertford, 229 
 
 Wyche i>. Green, 453 
 
 Wycombe Ry. Co. v. Donnington Hos- 
 pital, 392, 420 
 
 Wynn v. Shropshire Union, &c, Co, 
 340 
 
 Wynne's case, 23 
 
 Wythes v. Labouchere, 405, 469 
 
 Xenos v. Wickham, 585 
 
 Yale v. Dederer, 69 
 
 — v. Edgerton, 142 
 Yarborough v. Bank of England, 1.39 
 Yard v. "Sard, 5%1 
 
 Yates v. Boen, 79 
 
 — v. Foot, 330 
 
 — ■(.. Nash, 200 
 Yauger v. Skinner, 82 
 Yaw v. Kerr, 572 
 Yenner v. Hammond, 448 
 Yeoman v. Williams, 584 
 Yeomans v. Chatterton,' 248 
 Yerrington v. Green, 367 
 Yorkshire Banking Co. v. Beatson, 226 
 Youle v. Richards, 446 
 
 Young, Ex parte, 277 
 Young ». Clark, 542 
 
 — V Frost, 542 
 
 — v. Hopkins, 488 
 
 — v. Hughes, 254 
 
Ixxvi 
 
 TABLE OP CASES. 
 
 Young ». Lehman, 394 
 
 — v. Paul, 474 
 
 — ■». Stevens, 82 
 Youqua o. Nixon, 356 
 Yundt v. Roberts, 318 
 
 Zabriskie v. Railroad Co., 93, 108- 
 Zaleslri v. Clark, 26 ' 
 Zebley v. Sears, 474 
 Zeigler v. Hughes, 526 
 Zouch v. Parsons, 88 
 
NOTE OF SOME EDITIONS CITED, AND ABBREVIATIONS. 
 
 Alb. L. J. — Albany Law Journal. 
 
 Am. Law Rec. — American Law Record. 
 
 Am. Law. Rev. — American Law Review. 
 
 Am. Lead. Ca.— American Leading Cases, fifth edition, 1871. 
 
 Benjamin on Sale, second Eng. edition, 1873, and second Am. edition, 1877. 
 
 C. L. J. — Central Law Journal. 
 
 Dart V. & P.— Dart's Vendors and Purchasers, fifth Eng. edition, 1876. 
 
 Green's Briee's Ultra Vires, second edition, 1880. 
 
 I. C. A.— The Indian Contract Act is sometimes thus cited. 
 
 Keut.— Kent's Commentaries, twelfth edition, 1873. 
 
 Langdell's Sel. Ca. Cont.— I^angdell's Selection of Cases on the Law of Contract, second' 
 
 edition, 1879. 
 Law Journal.— Always cited by the number of the volume in the New Series. 
 Law Reports (British, 1865-75).— The Chancery Appeal and Equity eases are cited as- 
 
 **Ch." and "Eq." simply. 
 
 Law Reports (American).— 
 
 Clarke, unless otherwise noted, means the N. Y. reports of that name. 
 Hill, unless otherwise noted, means the N. Y. reports of that name. 
 How., refers to Howard's Reports, Sup. Ct. of tf. S. 
 Jones L., refers to Jones' Law Reports, North Carolina. 
 Jones Eq., refers to Jones' Equity Reports, North Carolina. 
 Met., unless otherwise noted, means Metcalf 's Reports, Sup. Ct. of Mass. 
 Lewin on Trusts, sixth Eng. edition, 1875. 
 Lindley on the Law of Partnership (sometimes cited by the author's name alone), third' 
 
 edition, 1873. 
 Saunders' Reports, notes to by the late Sergeant Williams (Wms. Saund.), ed. 1871. — Cited 
 
 by the paging of that edition, not the pages of Saunders. 
 Savigny, or Sav. Syst. — Savigny, System des heutigen rSmischen Rechts, Berlin, 1840-49. 
 Sav. Obi. — Savigny, Obligationenrecht, Beilin, 1851-3. 
 8m. L. C. — Smith's Leading Cases, seventh Eng. edition, 1876, and seventh Am. edition, 
 
 1872. 
 Vangerow, Pand.— Vangerow, Lehrbuch der Pandekten, seventh edition, Marburg and 
 
 Leipzig, 1863. 
 Pothier's and Story's works are cited by the consecutive sections. 
 Savigny and Vangerow are cited indifferently by volume and page, or by the consecu- 
 tive sections, often by both. 
 
PRINCIPLES OF CONTRACT 
 
 AT LAW AND IN EQUITY. 
 
 CHAPTER I. 
 
 AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 It is somewhat curious that no such thing as a satisfactory defi- 
 nition of Contract is to be found in any of our books. The trutb 
 is that not one definition, but a series of definitions, is required, 
 and this want is supplied by the interpretation clause of the Indian. 
 Contract Act (to be presently quoted) with a completeness and ac- 
 curacy which in the present writer's judgment are not likely to be- 
 much improved upon for any practical purpose. Before we come 
 to this, however, it is worth while to show, by approaching the 
 conception of Contract from a more general point of view, of how 
 special and complex a nature the conception really is. 
 
 One always thinks of the consent of the parties as the main 
 thing that goes to make a contract, as beyond question it is. A. 
 contract is before all things a transaction in which two or more 
 persons consent. But this is a generic, not a specific description. 
 Every contract involves consent, but many legal transactions in- 
 volve consent without being contracts. For a generic name of all 
 legal transactions in which consent is necessary, we may provision- 
 ally, for want of any better word, use the term Agreement, in the 
 widest possible sense (a). Let us now see how many things are in- 
 cluded in the consent that makes a legal *agreement. Consider [2 
 a familiar and unquestionable instance, the contract of sale. The 
 first thing we observe is that it takes not less than two persons to 
 make it. In this, and in most cases, there are, in fact, not more ; 
 but others readily occur, such as partnership, where the number is 
 not limited. The next thing is that these persons have a distinct 
 
 (a) Vertrag, as used by Savigny, whose analysis (Syst, \ 140, vol. 3,' p. 307) 
 we follow almost literally in this paragraph. 
 
 1 (1) 
 
2 CHAP. I. AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 intention, and the intention of both or all of them is the same. 
 Without this, one obviously can not say there is an agreement. 
 iNext, they must be aware that their intentions agree: in other 
 "words, they must communicate them to one another, for it is again 
 obvious that uncommunicated intentions, however exactly they 
 correspond, do not make an agreement (a.) Moreover the scope of 
 the intention is material. If people make arrangements to go out 
 for a walk, or to read a book together, that is no agreement in a 
 legal sense. Why not? Because their intention is not directed to 
 legal consequences, but merely to extra-legal ones ; no rights or 
 ■duties are to be created. In the case of the sale, the buyer and the 
 seller intend to acquire new rights and undertake new duties. The 
 buyer means to become the owner of the goods, and the seller to 
 become his creditor for the price, and this is what gives the agree- 
 ment its legal character (6). The intention of the parties must 
 therefore be an intention directed to legal consequences ; and, fin- 
 ally, those consequences must be such as to confer rights or impose 
 duties on the parties themselves. The judgment of a full Court, 
 or the verdict of a jury, for example, expresses a conimon inten- 
 tion of several persons which has legal consequences for its imme- 
 diate object, and yet it is not an agreement. Nobody would think 
 •of calling it so. Why not ? Because the rights and duties deter- 
 mined by the judgment or verdict are not those of the judges or 
 jurors. The result, then, comes out in this way : 
 
 When two or more persons concur in expressing a common in- 
 tention so that rights or duties of those persons are thereby de- 
 termined, this is an agreement (c). 
 
 (a) [The principle that the law takes no notice of mere mental operations apart 
 from a physical expression of them was quaintly stated by Brian, C. J., 17 
 Edw. IV., T. Pasch, case 2, who said, as quoted by Lord Blackburn, in Brogden 
 v. Metropolitan Bwy. Co., 2 App. Cas, 666, 692, " it is trite law that the thought 
 of man is not triable, for even the devil does not know what the thought of 
 man is." See White i>. Corlies, 46 N. T. 467, 469-470.] 
 
 (6) The difference is " dass in diesem der Wille auf ein Bechtsverhaltniss als 
 Zweck geriehtet ist, in jenen Fallen auf andere Zweeke:" the want of an 
 English equivalent for Recthsverhaltniss has made some circumlocution un- 
 avoidable in the text. 
 
 (c) The original words are subjoined, as a perfectly literal translation is not 
 practicable!,- Vertrag ist die Vereinigung Mehrerer zu einer ubereinstimmen- 
 den "Willenserklaru-ng, wodurch ihre Bechtsverhaltnisse bestimmt werden. 
 Savigny, Syst., \ 140 (3, 309). . This is one of the things which look very ob- 
 vious when they are once stated, and the reader may be tempted to think it too 
 2 
 
DEFINITION OF AGREEMENT. 3, 4 
 
 *The first point that strikes us in this definition is its extreme [3 
 -comprehensiveness. It includes every kind of transaction which 
 ■affects the rights of the parties and to which the consent of more 
 than one of them is necessary. Not only contract, but every sort 
 •of conveyance is covered by it ; even a conveyance by way of ab- 
 solute and immediate gift (a). The last item is at first sight start- 
 ling, especially as there are certain ways of making a gift (other- 
 wise than by a transfer of property) in which the assent or knowl- 
 edge of the donee is immaterial (b). But to say that a conveyance 
 by way of gift imports an agreement is only to say that ownership 
 can not be thrust on a man against his will, and in this form there 
 is nothing strange in the proposition. And, in fact, there is ex- 
 press authority in our law to show that " it requires the assent of 
 both minds to make a gift, as it does to make a contract " (i.e., 
 when the gift is to take effect by way of a transfer of property to 
 the donee), although the donee's assent is readily presumed, and, 
 therefore, if money is offered as a gift, but not accepted as such, the 
 subsequent agreement of the parties may make it a good loan (c): 
 In like manner the definition now before us includes, of course, 
 gratuitous obligations as well as those made upon valuable consid- 
 eration. So much as to its general contents. It will now suffi- 
 ciently appear that its proper place, in this highly general form, is 
 in a work reviewing the whole field of legal conceptions in the 
 most general manner possible (which Savigny's in fact does) (d) ; 
 .and further analysis is required before we can arrive at any thing 
 -applicable to the special treatment of contract. O — 
 
 *The central part of this group of ideas is that the parties con- [4 
 cur in expressing a common intention. Let us see how this is brought 
 
 obvious to be worth making so much of. But it is just these obvious things 
 which remain hidden or unfruitful till a man of true scientific genius like Sa- 
 vigny sees the importance of bringing them distinctly to the light. 
 
 (a) Conveyance, of course, contains something beyond agreement, namely, 
 the transfer of property. All that is meant is that every conveyance includes 
 an agreement. 
 
 (b) Savigny, Syst., \ 160 (4, 145-50). The most striking case, howeVer — the 
 payment of another man's debt — is at least doubtful in English law. 
 
 (c) Hill v. Wilson, 8 Oh. 888, 896. Cp. D. 39, 5 de don. 10; D. 44, 7 de obi. 
 et act. 55. 
 
 (d) Nothing would be easier than to produce any amount of mistaken criti- 
 cism on this and other parts of Savigny's work, by not attending to its true 
 
 -object and character, which are fully explained by himself in the preface to 
 vol. 1. 
 
 3 
 
5 CHAP. I. AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 about. They must be assured by mutual communication that a. 
 common intention exists, that they mean the same thing in the- 
 same sense. But must they then proceed to a further act of ex- 
 pressing this intention? No, there is no need for any thing more, 
 unless indeed it is understood between the parties, as in particular- 
 cases it may be, that only a subsequent formal expression is to bind 
 them, or unless something more is specially prescribed by law. 
 "When the communication is complete, the expression is complete ; 
 the expression of the common intention is the sum of the complete 
 communication and nothing else. How then is the communication 
 completed? We only have to look at the way in which bargains'- 
 are struck or go off in all men's experience. The commuuications 
 begin with a proposal of certain terms from one party. The other 
 either accepts them, when there is an end of it, or he does not, 
 when again there is an end of it for the time being, and so far as- 
 that particular proposal is concerned. But it often happens that 
 one or other of the parties, unwilling merely to break off, there- 
 upon suggests something rather different : and thus they may go- 
 on trying counter-proposals indefinitely, till they either give it up 
 or one of them makes a proposal which the other can accept as it. 
 stands. Thus the conduct of every bargain which is struck is ul- 
 timately reducible to the form : Will you do so and so on such and 
 such terms ? — I will. And the conduct of every attempted bargain 
 which goes off is ultimately reducible to the form : Will you do so 
 and so on such and such terms ? — I will not. We can put all this 
 together into a statement of the following kind : 
 
 The mutual communication which makes up an expression of 
 common intention for the purposes of legal agreement consists of 
 proposal and acceptance. 
 
 As a matter of historical fact, this comes out in the most striking- 
 and definite form that can be in the formal question (proposal) and 
 answer (acceptance) of the Eoman Stipulation. Yet this particu- 
 analysis of the elements of contract is, as a rule, comparatively 
 5] neglected by writers on the civil law, while *its importance as- 
 a distinct part of the legal theory is fully brought out in our own 
 books. However, German jurisprudence has apt technical words ■■ 
 for dealing with the subject, and in some modern books a good deal 
 of attention is paid to it (a). 
 
 Thus far, however, we are still on general ground. We have not 
 
 (a) See Vangerow, Pand. j> 603 (3, 248, etc., 7th ed.). The terms are Antrag* 
 = Proposal ; Annahme = Acceptance. 
 4 
 
DEFINITION OF CONTRACT. 6 
 
 yet got any specific mark of contract, as distinguished from agree- 
 ment (==Vertrag) in the wide sense. What distinguishes the agree- 
 ment in a contract from the agreement in any other of the trans- 
 actions falling -within the more general conception, such as for ex- 
 ample a perfect conveyance? The distinction is this: in the case 
 •of a contract something remains to be done by one or by each of /* 
 the parties, which the other has or will have a right to call upon 
 him to do. Now, in the language of Roman law (which is often 
 adopted by our own, but perhaps can not strictly be called part of 
 it), there is a technical and appropriate name for this state of 
 things. When one man has a peculiar right (i.e., not a merely pub- 
 lic right, or a right incident to ownership or a permanent family 
 Telation) to control another man's actions by calling upon him to 
 ■do or forbear some particular thing, there is said to be an obliga- 
 tion between them (a). The person whose action is thus controlled 
 is said to be obliged or bound. A contract accordingly is an agree- I 
 <ment which produces an obligation (6). In this case, therefore, 
 ithe common intention expressed by the parties has this peculiar 
 •character, that it contemplates a future performance or perform- 
 ances to which one or each of them is to be bound. On the side of 
 the party so bound, the expression of this intention is accordingly 
 nothing else than an undertaking to perform the thing he is bound 
 'to — in other words, a promise. This is the specific mark of Con- 
 •tract which we sought. That which distinguishes it from the genus 
 Agreement is that the expression of intention is not only consti- 
 tuted by proposal and acceptance, but includes the particular kind 
 of expression which is called a promise. We have as the proper 
 groundwork of contract a promise determined by the acceptance 
 of a proposal. 
 
 *The notion of Agreement in its largest sense, from which we [6 
 •set out to this end, has now served our purpose, and we have no more 
 ito do with it. The reason for saying this expressly is that we shall 
 henceforth find it convenient, and indeed necessary, to use the word 
 •with a more limited meaning. 
 
 The leading ideas being thus worked out, the next thing would 
 "'be to embody them in difinitions. This part of the work, however, 
 
 (a) Sav. Syst. I., 338-9 : Id. Obi. I., 4, seq. 
 
 (6) Obligatorischer Vertrag, or (expanding Vertrag according to its previous 
 ♦definition) thus: Vereinigung Mehrerer zu einer ubereinstimmenden Willen- 
 -serklarung, wodurch unter ihnen eine Obligation entstehen soil. Sav. Obi. 2, 
 1..B. ' 5 
 
7 CHAP. I. AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 is fortunately done to our hand by the Indian Contract Act 1872 r 
 and we are now in a position to appreciate the value of it. The- 
 second section of the Act runs thus : — 
 
 " In this Act the following words and expressions are used in the fol- 
 lowing senses, unless a contrary intention appears from the context: — 
 
 (a) When one person signifies to another his willingness to do or to ab- 
 stain from doing any thing, with a view to obtaining the assent of that 
 other to such act or abstinence, he is said to make a proposal : 
 
 (b) When the person to whom the proposal is made signifies his assent 
 thereto, the proposal is said to be accepted. A proposal when accepted 
 becomes a promise : 
 
 (c) The person making the proposal is called the " promisor," the per- 
 son accepting the proposal is called the " promisee " : 
 
 (d) When, at the desire of the promisor, the promisee, or any other- 
 person has done or abstained from doing, or does, or abstains from doing, 
 or promises to do or to abstain from doing something, such act or abstin- 
 ence or promise is called a consideration for the promise : 
 
 (e) Every promise, and every set of promises forming the consideration/ 
 for each other, is an agreement : 
 
 (/) Promises which form the consideration, or part of the consideration, 
 for each other, are called reciprocal promises : 
 
 (#) An agreement not enforceable by law is said to be void : 
 
 (A) An agreement enforceable by law is a contract: 
 
 (£) An agreement which is enforceable by law at the option of one or 
 more of the parties thereto, but not at the option of the other or others, 
 is a voidable contract: 
 
 (j) A contract which ceases to be enforceable by law becomes void 
 when it ceases to be enforceable.'' 
 
 The language here used is mostly familiar to English law, so 
 that only one or two points call for any remark. In English books- 
 " offer " is constantly used as a synonym for " proposal," and per- 
 haps rather the more often of the two. The use of the one or the- 
 7] other word seems a pure matter of taste. For a legislative ♦de- 
 finition, of course, it was convenient to keep only one. ■ The distinc- 
 tion between "agreement" and " contract," by which " contract "' 
 means, only a valid and enforceable agreement, answers to the clas- 
 sical difference in Latin between contractus and pactum, which per- 
 haps suggested it, but is new in our language. The phrase " a void' 
 contract," which often occurs in English books, is, according to this- 
 definition, a contradiction in terms. The innovation seems to us a 
 clear improvement, for it makes the legal meaning of the words- 
 more precise and convenient, without doing any violence to former,, 
 or even to popular usage, and as a rule we shall adopt it (a). 
 
 (a) The distinction might be exhibited thus in Savigny's terminology: Agrfee- 
 6 
 
COMMUNICATION AND REVOCATION. 5$ 
 
 The subject of consideration is. reserved for a separate chapter. 
 
 The distinction between void and voidable transactions, hero ox- 
 pressed in the form of a definition, is one of the most fundamental 
 and important in the law, though a great deal of laxity is to be- 
 found even in modern books in the use of the two words (a). 
 
 An agreement or other act which is void has, from the beginning, 
 no legal effect at all, save in so far as it may subject the parties to- 
 penal consequences in any case where it is made void by some 
 special prohibitive law which also imposes a penalty. No person's 
 rights can be affected by it, whether he be a party or a stranger. 
 
 A voidable act, on the contrary, will have all its proper legal 
 effects unless and until it is disputed and pronounced invalid. And. 
 it can be disputed only by certain persons and under certain con- 
 ditions. 
 
 It is needless to say more in general terms of this distinction,. 
 which we shall find amply illustrated in almost every branch of 
 the subject. We must note, however, that the language of sub- 
 sections (g). and (j) is not exactly applicable to English law (b). 
 For in the chapter on Agreements of Imperfect Obligation we- 
 shall see that there are many agreements which, although they 
 can not be enforced, yet are by no means to be spoken of as void, 
 inasmuch as they are otherwise recognized by law, and have dis- 
 tinct legal consequences. 
 
 *The main principle being fixed that a contract is constituted [8 
 by the acceptance of a proposal, it remains to note the applica- 
 tions of it in detail, which for the most part are obvious corul- 
 larie&j though considerable difficulties arise in some particular 
 instances. 
 
 1. A proposal may be revoked at any time before acceptance, 
 but not afterwards. 
 
 For before acceptance there is no agreement, and therefore the 
 proposer can not be bound to any thing (c). So that even if he 
 
 ment = Vertrag, wodurch eine Obligation entstehen soil. Contract = Vertrag, 
 wodurch eine klagbare Obligation entsteht. 
 
 (a) Infra, p. 36. 
 
 (b) This applies, in some cases, to sub-s. (i) also. When a memorandum of 
 an agreement required by the Statute of Frauds to be in writing, has been 
 signed by one party but riot by the other, the agreement is enforceable at the 
 option of him who has not signed, but not at the option of the other ; but we 
 can hardly call this a voidable contract. 
 
 (c) [Stitt v. Huidekopers, 17 Wall. 384; Crocker v. Railroad Co., 24 Conn. 
 249, 261 ; Johnson v. Filkington, 39 Wis. 62; Railroad Co. v. Bartlett, 3 Cush. 
 
 7 
 
8 CHAP. I. AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 purports to give a definite time for acceptance, he is free to with- 
 draw his proposal before that time has elapsed. He is not bound 
 to keep it open unless there is a distinct collateral contract to that 
 effect, founded on a distinct consideration. If in the morning A. 
 offers goods to B. for sale at a certain price, and gives B. till four 
 o'clock in the afternoon to make up his mind, yet A. may sell the 
 goods to C. at any time before four o'clock, so long as B. has not 
 accepted his offer. But if B. were to say to A. : " At present I do 
 not know, but the refusal of your offer for a definite time is worth 
 something to me ; I will give you so much to keep it open till four 
 o'clock'' (or even, it may be, "If you will keep it open till four 
 o'clock, then, in the event of my taking the goods, I will add so much 
 ■to the price ") (a), and A. were to agree to this, then A. would be 
 bound to keep his offer open, not by the offer itself, but by the sub- 
 sequent independent contract (b~). This doctrine was established by 
 Cooke v. Oxley (c), and followed in Eoutlodge v. Grant (d), and 
 other cases, and has lately been confirmed by the Court of Ap- 
 peal (e). It is different in the modern civil law. There a promise 
 
 ■224; Poster v. Boston, 22 Pick. 33; Brown v. Bice, 29 Mo. 322; Houghwout v. 
 Boisaubin, 18 N. J. Eq. 315.] The same rule applies to a proposal to vary an 
 •existing agreement. Gilkes v. Leonino, 4 C. B. N. S. 485. [Where, on a treaty 
 for a sale, an article is taken on trial, with an option to purchase if liked, there 
 is no contract, but only an offer until the option is determined. Hunt v. Wy- 
 man, 100 Mass. 198. But where the article is taken with an option to return if 
 not liked, there is a contract, in thefirst place, subject to a right of rescission. 
 "Withersby v. Sleeper, 101 Mass. 138.] 
 
 (a) See G. N. By. Co. v. "vFitham, L. B., 9 C. B. 16. Combining this with 
 the principle of Hochster v. De la Tour, 2 E. & B. 678 ; 22 L. J., Q. B. 455, and 
 Prost v. Knight, L. B., 7 Ex. Ill, one may get the result in the text. 
 
 (6) It is not to be understood that a promise, upon consideration, to keep an 
 ■offer open until a time named makes the offer irrevocable in the interim. An 
 acceptance, after a revocation of the offer, within the time limited, would not 
 make a contract, for when an offer is revoked there is nothing to accept. To 
 say that the offef could not be revoked because of the promise not to revoke it, 
 is to say that a man may make a promise which he is in law incapable of break- 
 ing, which is an absurdity. But of course an action would lie for a breach of 
 the promise to keep the offer open. 
 
 (c) 3 T. B. 653; affid. in Ex. Ch., see note. 
 
 {d) 4 Bing. 653. 
 
 (e) Dickinson v. Dodds, 2 Ch. D. 463. For a conclusive answer to criticisms 
 
 which have been made upon Cooke v. Oxley, see Benjamin on Sale, 51-55 [2d 
 
 Am. ed., 65-69. The decision in Cooke v. Oxley has been generally condemned 
 
 in this country. " The criticisms which have been made upon the case are suffi- 
 
 8 
 
COMMUNICATION AND REVOCATION. 9 
 
 to keep a proposal open for a definite time is treated as binding, as 
 indeed there appears no reason why it should not be in a system 
 to which the doctrine of consideration is foreign ; nay, there is 
 held in effect to be in every proposal an implied ^promise to keep [9 
 it open for a reasonable time (a). In our own law, the effect of 
 naming a definite time in the proposal is simply negative and for 
 the proposer's benefit; that is, it operates as a warning that an ac- 
 ceptance will not be received after the lapse of the time named. 
 In fact the proposal so limited comes to an end of itself at the end 
 
 -eient to destroy its authority." 2 Kent, 477, n. d. " It can not be considered as 
 of any authority." Railroad Co. v. Bartlett, 3 Cush. 224, 228 ; and see Metcalf 
 
 ■ on Contracts, 19-23 ; 1 Duer on Insurance, 118; 2 Amer. Jurist (N. S.), 17 sqq. 
 Every offer, once made, remains open until expressly or impliedly revoked. If 
 not sooner expressly revoked, it is presumed to be revoked after the lapse of a 
 reasonable time, without acceptance. (See next page.) 
 
 When an offer is in terms made to remain open until a fixed time, " the pro- 
 posal so limited comes to an end of itself at the end of that time," but a will- 
 ingness to contract on the part of the party offering is presumed to continue 
 during the time limited. Larmon v. Jordan, 56 111. 204; Railroad Co. «. Bart- 
 lett, 3 Cush. 224, 227; Mactier's Adm'rs v. Frith, 6 Wend. 103, 122; Cheney v. 
 Cook, 7 Wis. 413. And, in the absence of an intermediate express revocation, 
 
 .an acceptance of the offer within that time gives rise to a contract. In Cooke 
 v. Oxley there was an offer in terms limited to remain open until four o'clock, 
 and an acceptance before that hour, and it does not appear that there was a re- 
 vocation within that time. If the case is to be taken as having decided that 
 
 mpon these facts there was no contract, it will scarcely be denied that it was 
 wrongly decided. But as explained by Mr. Benjamin (On Sales, 2d Am. ed., 
 
 ^ 64-67) and by Mr. Leake (On Contracts, 2d ed. 44), it decides not this, but 
 only a question of pleading, namely, that the declaration was bad on motion in 
 
 .arrest of judgment, for not expressly averring that the offer continued open un- 
 til four o'clock, and it is admitted that, had the declaration contained such aver- 
 ment, it would have disclosed a good cause of action. It is only as thus ex- 
 plained, if at all, that the decision can stand, and neither Routledge v. Grant 
 nor Dickinson v. Dodds necessarily rests upon the doctrine generally supposed 
 
 7to have been laid down in Cooke v. Oxley; for in the former case the offer was 
 not met by the acceptance, the offer having been to take a lease, possession to 
 be given on the 25th of July, and the acceptance, to give a lease, possession to 
 be given on the 1st of August, and the latter is put upon the ground that the 
 
 offer had, to the knowledge of the promisee, been withdrawn before he accepted 
 it. The idea, which may be inferred from the language of the text, and which 
 receives some countenance from what was said by the judges in Dickinson v. 
 Dodds, that an offer to sell certain property is revoked ipso facto by the mere 
 
 :sale of it to another person is directly in the teeth of rule 3, p. 10, post, that a 
 
 .proposal is revoked only when the intention to revoke it is communicated to- 
 rtile other party. See Langdell's Sel. Ca. Cont., p. 1091.] 
 
 (a) Vangerow, Pand., g 603 (3, 253) ; see L. R., 5 Ex. 337, n. 
 
10 CHAP. I. AGREEMENT, PROPOSAL. AND ACCEPTANCE. 
 
 of that time, and there is nothing for the other party to accept (a). 
 This leads us to the next rule, namely: & 
 
 2. The proposer may prescribe a certain time within which t he- 
 proposal is to be accepted, and the manner and form in which it is 
 to be accepted. If no time is prescribed, the acceptance must be 
 communicated to him within a reasonable time. In neither e:ise 
 is the accejJtor answerable for any delay which is the consequence 
 of the proposer's own default. If no manner or form is pre- 
 scribed, the acceptance may be communicated in any reasonable or 
 usual manner or form. 
 
 This is almost self-evident, standing alone ; we shall see the im- 
 portance of not losing sight of it in dealing with certain diffi- 
 culties to be presently considered. Note, however, that though 
 the proposer may prescribe a form or time of acceptance, he can 
 not prescribe a form or time of refusal, so as to fix a contract on 
 the other party if he does not refuse in some particular way or 
 within some particular time (b). 
 
 Among other conditions, the proposal may prescribe a particular 
 place for acceptance, and if it does so, an acceptance elsewhere will 
 not do (c). The real question in cases of this kind is whether the 
 condition as to time, place, or manner of acceptance was in fact 
 part of the terms of the proposal. 
 
 There is direct authority for the statement that the proposal, 
 must at all events be taken as limited to a reasonable time (d) ; 
 nor has it ever been openly disputed. The rule is obviously re- 
 quired by convenience and justice. It may be that the proposer- 
 has no means of making a revocation known {e.g., if the other 
 party changes his address without notice to him, or goes on a long 
 journey), and he can not be expected to wait for an unlimited 
 10] *time. There is also direct authority to show that an accept- 
 ance not communicated to the proposer or his agent does not make- 
 a contract (e). £j 
 
 (a) [Longworth *. Mitchell, 26 O. S. 334, 342 ; Potts v. Whitehead, 20 N. J. Eq.. 
 55, 59 ; Larnion v. Jordan, 56 111. 204.] 
 
 (b) Felthouse v. Bindley, 11 C. B., N. S. 869, 875; 31 L, J., 0. P. 204. 
 
 (c) Eliason v. Henshaw, 4 Wheat. 225. 
 
 (d) Baily'sease, 5 Eq. 428; 3 Ch. 529; Ramsgate Hotel Co. v. Montefiore, 
 Same Co. v. Goldsmid, L. R., 1 Ex. 109; [Moxley v. Moxley, 2 Met. (Ky.) 309; 
 Railroad Co. v. Dane, 43 N. Y. 240; Loring v. Boston, 7 Met. 457; Averill v. 
 Hedge, 12 Conn. 424 ; Mizzel v. Burnett, 4 Jones L. 249 ; Minnesota Oil Co. c„ 
 Collier Lead Co., 4 Dillon, 431.] 
 
 (e) M'lver v. Kicbardson, 1 M. & S. 557 ; Mozely ■„. Tinkler, 1 C. M. & R_ 
 
 10 
 
- CONTRACTS BY CORRESPONDENCE. 11 
 
 3. A proposal is revoked only when the intention to revoke it is- 
 communicated to the other party. Therefore a revocation com- 
 municated after acceptance, though determined upon before the 
 acceptance, is too late. 
 
 Putting out of the question for the present any difficulties that 
 may arise as to what is in point of law the true date of the ac- 
 ceptance, it is clear from the cases presently to be mentioned that 
 this is the rule of the common law. The civilians differ on the 
 point. Pothier lays down a directly contrary rule in a well-known 
 passage (Contr. de Vente, § 32) which we need not repeat, as it is 
 given with slight abridgment by Mr. Benjamin (On Sale, 57-8. [2d 
 Am. ed., 72]). He does not fail to see the manifestly unjust conse- 
 quences of letting a revocation take effect, though the other party 
 has received, accepted, and acted upon the proposal without knowing 
 any thing of the proposer's intention to revoke it; but he escapes 
 them by imposing an obligation on the proposer, upon grounds of" 
 natural equity independent of contract, to indemnify the party so 
 accepting against any damage resulting to him from the transaction. 
 This treatment of the subject wholly overlooks the consideration 
 that not intention in the abstract, but communicated intention, is 
 What we have to look to in all questions of the formation of 
 contracts (a). And the obligation to indemnify (which must bo 
 classed as quasi ex delicto if any thing) is not only a cumbrous and 
 inelegant device, but as Mr. Benjamin points out, overshoots its 
 mark by being in turn unfair to the proposer. Far more satisfac- 
 tory is Vangerow (Pand. § 603), whose opinion is to this effect. 
 The declaration of an animus contrahendi (whether by way of pro- 
 posal or of acceptance) when once made must be regarded as con- 
 tinning so long as no revocation of it is communicated to the other 
 party. A revocation not communicated is in point of law no re- 
 vocation at all (6). In this respect the revocation of a proposal or ac- 
 ceptance must be governed by the *same rules as the proposal [11 
 of acceptance itself. These principles, it seems to us, are entirely 
 right if tested by common sense and convenience, and are in ac- 
 
 692; Bussell v. Thornton, 4 H. & N. 788, 798, 804; Hebb's case, 4 Eq. 9 ; [Shupe- 
 v. Galbraith, 32 Pa. St. 10 ; Jenness v. Mount Hope Iron Co., 53 Me. 20 ; 
 M'Culloch v. Insurance Co., 1 Pick. 278] ; and see p. 15, infra. 
 
 (a) So Mr. Leake justly remarks (On Contracts, 20, n.); [2d ed., 43, n (/)]. 
 
 (b) [Stevenson v. McLean, 5 Q. B. D. 346 ; Wheat v. Cross, 31 Md. 99 ; Thom- 
 son v. James, 18 Dunlop, 1 ; Langdell's Sel. Ca. Cont. 125; Byrne v. Van ,Tien~ 
 hoven, 5 C. P. D. 344.] 
 
 11 
 
12 CHAP. I. AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 • cordance with the. authorities of the common law when rightly 
 understood. 
 
 4. The communication of an acceptance or of its revocation is sub- 
 ject to the same rules as the communication of a proposal or of its 
 revocation. 
 
 This seems obvious enough, yet it is very possible to overlook 
 it, and more distinct attention to it might perhaps have saved the 
 law from some of the complication and difficulty which at present 
 attend a particular class of cases. This class is one of great and 
 increasing importance — namely, where a contract is entered into 
 by correspondence between persons at a distance. The proposer is 
 
 'bound, of course from the date of acceptance. The great question 
 is, what is for this purpose the date of acceptance ? And it has 
 •been assumed, without any real necessity, that some one moment 
 must be fixed at which the contract is made absolute for all pur- 
 poses : hence the difficulties that have been found in stating a satis- 
 factory rule. As far as proposition 3 is concerned it is plainly just 
 and expedient that the acceptance should date from the time when 
 the party has done all he can to accept, by putting his affirmative 
 
 . answer in a determinate course of transmission to the proposer. 
 Prom that time he must be free to act on the contract as valid, and 
 disregard any revocation that reaches him afterwards. And it is 
 very natural, and in fact there is a strong tendency in the English 
 
 .authorities, to conclude that at this point the contract is wholly ir- 
 revocable and absolute ; so that on the one hand the acceptor re- 
 mains bound, though he should afterwards dispatch a revocation 
 which arrives with or even before the acceptance ; and on the other 
 hand the proposer is bound, though, without any default of his 
 
 -own, the acceptance should never reach him. But these conse- 
 quences contradict the propositions 2 and 4, and are against all 
 reason and convenience. The proposer can not, at all events, act 
 on the contract before the acceptance is communicated to him ; as 
 against him, therefore, a revocation is in time if it reaches him to- 
 gether with or before the original acceptance, whatever the relative 
 12] times of their dispatch. On *the other hand it is not reasonable 
 that he should be bound by an acceptance that he never receives. 
 He has no means of making sure whether or when his proposal has 
 
 arrived (a), or whether it is or not accepted, for the other party need 
 not answer at all. The acceptor may much more reasonably be 
 
 (a) The German post-office, however, undertakes (if required at the time of 
 ^posting) to furnish the sender of any letter with an official certificate of its de- 
 livery. 
 
 12 
 
CONTRACTS BY CORRESPONDENCE. 13 
 
 left to take the risk of his acceptance miscarrying, for in practice 
 he can easily take means, if he think fit, to provide against this (a). 
 So far we have made no distinction between different modes of 
 transmission. It seems to us, in fact, that such distinctions ought 
 strictly to be immaterial, and that the principles of general con- 
 venience above stated should override them. However, the rules 
 of agency, or rather their analogy, are now commonly appealed to. 
 The inconvenience and inconsistent results of this last method are 
 easily shown. /-\ 
 
 (a) A. sends a messenger to B. to propose a contract to B. and', 
 bring back the answer. B. tells the messenger that he accepts. 
 Here it would be generally admitted that the messenger is A.'s • 
 agent to receive the acceptance, and both parties are absolutely 
 bound from the moment of the communication to the messenger. 
 So that if B. sends an express charged with arevocation, who over- 
 takes the messenger long before he has reached A., B. nevertheless 
 remains bound, and if the messenger dies on the road, and A. never • 
 gets his message, A. nevertheless remains bound. 
 
 (/3) A. sends a messenger to B. not charged to bring back the 
 answer, and B. sends an acceptance by another messenger of his 
 own. This messenger, it would be generally said, is only B.'s agent 
 to communicate the acceptance to A., and neither party is bound 
 at all before its actual communication. Therefore in the cases put 
 above the results will be directly the reverse (and so far less incon- 
 venient) ; but then if A. sends a revocation which crosses B.'s ac- 
 ceptance, and is delivered to B. before B.'s messenger delivers the 
 acceptance to A., the proposal is effectually revoked, which is even 
 more inconvenient. It may be suggested, however, that A., by the 
 mere fact of his making the proposal *and not prescribing any [13 - 
 special way of transmitting the answer, must be taken to authorize 
 B. to send his answer by any competent agent ; and it would not be 
 a very violent fiction to say that A. thereby makes the agent so em- 
 ployed by B. his own agent to receive the acceptance (6). If the 
 subject is to be treated in such an artificial manner at all this would 
 
 (a) Cp. on this subject Bramwell, B., L. R., 6 Ex. at p. 118, and a letter 
 signed J. P. S. in the Pall Mall Gazette of Nov. 18, 1874. 
 
 (b) [To say that one by simply making an offer, grants to the promisee an im- 
 plied authority to appoint whomsoever he will the promisor's agent to receive 
 an acceptance of the offer, seems to the writer, on the contrary, to be an ex- - 
 ceedingly violent presumption, and to produce a result never actually contem- - 
 -plated by a person when making an offer.] 
 
 13 
 
14 CHAP. I. AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 sput the case on the same footing as (a), and at least give a uniform 
 rule, though not a very satisfactory one. /f 
 
 (j) The proposal and acceptance are communicated through the 
 post. This is the common case in modern times, and that which 
 has given rise to difficulties in practice. A peculiar character has 
 been attributed to communications made through the post, and it 
 has been discussed whether the post-office is the agent of one or 
 both parties ; unavoidably perhaps, but with little profit. It would 
 have been better, had it been possible, to treat the post-office sim- 
 ply as a prima facie reasonable mode of communication (whether 
 by letter or by telegraph), and to say nothing about agency. What 
 is the actual state of the law ean not be laid down with much con- 
 fidence, and we must proceed to gather it as we best can from a re- 
 view of the cases. 
 
 The first and perhaps still the leading case on the matter is Adams v. 
 Lindsell (a). Defendants wrote to plaintiffs, " We now offer you 800 tods 
 of wether fleeces, etc." (specifying price and mode of delivery and pay- 
 ment), " receiving your answer in course of post." Here, therefore, the 
 mode and time of acceptance were prescribed (jb). This letter was misdi- 
 rected, and so arrived late. On receiving it, the plaintiffs wrote and sent 
 by post a letter accepting the proposal, but the defendants, not receiving 
 ~an answer when they should have received it if their proposal had not 
 been delayed, had in the meantime (between the dispatch and the ar- 
 rival Of the reply) sold the wool to another buyer. The jury were di- 
 rected at the trial that as the delay was occasioned by the neglect of the 
 defendants, they must take it that the answer did come back by course 
 of post. On the argument of a rule for a new trial, it was contended that 
 there was no contract till the answer was received. To this the Court re- 
 plied: 
 
 14] *" If that were so, no contract could ever be completed by the post. 
 For if the defendants were not bound by their offer when accepted by the 
 plaintiffs till the answer was received, then the plaintiffs ought not to be 
 bound till after they had received the notification that the defendants 
 had received their answer and assented to it ; and so it might go on ad 
 .infinitum. The defendants must be considered in law as making, during 
 every instant of the time their letter was traveling, the same identical 
 
 (a) 1 B. & Aid. 681. We need not stop at an earlier arid strangely confused 
 dictum of Lord Eldon's, Kennedy v. Lee, 3 Mer. 441, 454, which means, if any 
 thing, that a contract can never be complete by correspondence unless a rea- 
 sonable time has elapsed after the communication of the acceptance without an 
 •expression of dissent from either party. 
 
 (b) [Where the proposal stipulated for an acceptance by return mail, and the 
 ^acceptance was not posted until two days after the receipt of the proposal, it 
 
 was held that the promissor was not bound. Maclay v. Harvey, 90111.525; 
 .and see Carr v. Duval, 14 Pet. 77, 82.] 
 14 
 
CONTRACTS BY CORRESPONDENCE. 15 
 
 -offer to the plaintiffs, and then the contract is completed by the accept- 
 ance of it by the latter. Then as to the delay in notifying the acceptance, 
 that arises entirely from the mistake of the defendants, and it therefore 
 must be taken as against them that the plaintiff's answer was received in 
 course of post." 
 
 This last passage of the judgment, deliberately confirming the direc- 
 tion given to the jury, has hardly been allowed its full weight in later 
 cases. It certainly seems to admit that the receipt of the acceptance is 
 not immaterial, though when it is received the contract dates from the 
 posting. No doubt it is capable of being construed as applying only to a- 
 case where the proposed contract is in terms made conditional on an an- 
 swer being received by return of post. But it seems to us that such a 
 construction is too narrow, and that fairly considered the case amounts 
 to this: An acceptance by letter is complete as against the proposer from 
 the date of posting the acceptance if it arrives within the prescribed time, 
 if any, or otherwise within a reasonable time; but if the communication 
 of the proposal is delayed by the fault of the proposer, and the communi- 
 cation of the acceptance is consequently delayed, such delay is not to be 
 reckoned against the acceptor. This covers the greater part, if not the 
 whole, of the propositions above marked (2) and (3); but it must be ad- 
 mitted that later judgments have gone some way to cut it down. 
 
 In the Scotch case of Dunmore v. Alexander, 9 Shaw & Dunlop, 190 (a), 
 an acceptance and revocation were written at different times but posted 
 and received at the same time : held that the revocation was effectual. 
 No distinction was taken between postal and other communications (A). 
 
 Potter v. Sanders, 6 Ha. 1, seems to add nothing to Adams v. Lindseli ; 
 the posting of a letter of acceptance is said to be an act *which [15 
 " unless interrupted in its progress" concludes the contract as from the 
 date of posting. 
 
 Then comes Dunlop v. Higgins, 1 H. L. C. 381, a Scotch appeal decided 
 by Lord Cottenham. Here the proposal did not prescribe any time, but 
 -the nature of it (an offer to sell iron) implied that the answer must be 
 speedy. The acceptance was posted, not by the earliest possible post, but 
 in business hours on the same day when the proposal was received. The 
 post was then delayed by the state of the roads, so that the acceptance 
 was received at 2 p. m. instead of 8 a. m., the hour at which that post 
 should have arrived. The decision was that the contract was binding on 
 the .proposer; and it might well have been put on the ground that the 
 acceptance in fact reached him within a reasonable time. Lord Cotten- 
 ham however certainly seems to have thought the contract was absolutely 
 
 (a) [In the later case of Thompson v. James, 18 Dunlop, 1 ; Langdell's Sei; Cas. 
 Cont. 125, it was decided, dissentiente Ld. Curriehill, that a contract by letter is 
 complete from the moment of posting the acceptance.] 
 
 (b) The French Court of Cassation similarly held, in 1813, that when an ac- 
 ceptance and the revocation of it arrive together there is no contract. Merlin, 
 Repertoire, Vente, \ 1, Art. 3, no, 11 bis, Langdell Sel. (3a. Cont. 156. 
 
 15 
 
16 CHAP. I. AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 concluded by the posting of the acceptance (within the prescribed or a. 
 reasonable time) and that it mattered not what became of the letter after- 
 wards. And in Duncan v. Topham, 8 C. B. 225, not long afterwards, 
 Wilde, C. J., Maule, J. and Cresswell, J., seem to have so understood it, so 
 that the contract would be binding though the letter did not arrive at- 
 all (a) : but the decision was on other grounds (5). 
 
 The later cases have arisen out of applications for shares in companies 
 being made and answered by letter. Hebb's case, 4 Bq. 9, decides only 
 that an allotment of shares not communicated at all will not make a man 
 a shareholder ; for the letter of allotment was sent to the company's- 
 local agent who did not deliver it to the applicant till after he had with- 
 drawn his application. Lord Romilly however said in the course of his 
 judgment: " Dunlop v. Higgins decides that the posting of a letter ac- 
 cepting an offer constitutes a binding contract, but the reason of that is 
 that the post-office is the common agent of both parties." But the same- 
 judge held in Reidpath's case, 11 Eq. 86, that the applicant was not bound 
 if he never received the letter. 
 
 In British and American Telegraph Company v. Colson, L. B. 6 Ex.. 
 108 (c), it was found as a fact that the letter of allotment was never re- 
 ceived. The Court held that the defendant was not bound, and endeav- 
 ored to restrict the effect of Dunlop v. Higgins. The judgments of Kelly,. 
 C. B. (in which Pigott, B., concurred), and of Bramwell, B., are rather 
 differently expressed on this point. On the whole they seem to interpret 
 Dunlop v. Higgins thus: — When a proposal is to be answered by post 
 16] (which is generally to be inferred from the fact *of the proposal itself 
 being sent by post), the time allowed for the answer is to be taken as sub- 
 ject to unavoidable delays in the course of the post; but it does not fol- 
 low that an answer not delivered at all is an effectual acceptance. 
 
 In Townsend's case, 13 Eq. 148, the letter of allotment miscarried ancL 
 was delayed some days by the applicant's own fault in giving a defective 
 address. By a simple application of Adams v. Lindsell (expressly so 
 treated in the judgment, p. 154) it was held that the applicant was bound, 
 and that a withdrawal of his application, posted (and it seems delivered,, 
 p. 151) before he actually received the letter of allotment was too late. 
 The case in the Exchequer was incidentally recognized as an authority. 
 
 In Harris' case, 7 Ch. 587, the letter of allotment was duly received, 
 but in the meantime the applicant had written a letter withdrawing his- 
 application on the ground of the delay (ten days) in answering it. These 
 letters crossed. The Lords Justices held that the applicant was bound, 
 on the authority of Dunlop v. Higgins, with which they thought it dirn- 
 dl [Ace. Insurance Co. v. Grant, 4 Ex. D. 216 ; Vassar v. Camp, 11 N. T. 441 ; 
 Washburn v. Fletcher, 42 Wis. 152 ; Howard v. Daly, 61 N. Y. 362.] 
 
 (b) S. C. 18 L. J., C. P. 310, where this point does not appear; see L K., 6< 
 Ex. 115, 120; 7 Ch. 596. 
 
 (c) [Overruled in Insurance Co. v. Grant, 4 Ex. D. 216.] 
 
 16 
 
CONTRACTS BY CORRESPONDENCE. 17 
 
 cult to reconcile British and Amer. Telegraph Co. v. Colson (a). On this,. 
 however, no positive opinion was given, " because although the contract 
 is complete at the time when the letter accepting the offer is posted, yet 
 it may be subject to a condition subsequent that if the letter does not ar- 
 rive in due course of post, then the parties may act on the assumption 
 that the offer has not been accepted" (per Mellish, L. J., at p. 597). This- 
 would secure the proposer against hardship ; but still a revocation of the 
 acceptance by telegram would be . inoperative, contrary to our former 
 proposition (4). However, this must probably be taken as the best ex- 
 pression of the existing law that can be arrived at. 
 
 In Wall's case, 15 Eq. 18, the Court held that as a fact the letter had 
 been received, inclining, however, to think Harris' case an authority for 
 the extreme construction of Dunlop v. Higgins — viz., that the contract i* 
 absolute and unconditional by the mere posting. 
 
 Ex parte Cote, 9 Ch. 27, although the particular case is on quite different 
 points from the present, is worth consulting on the general question of 
 the legal character of the post-office as an agent of senders and receivers 
 of letters. 
 
 It will be seen that, as we have above said, the apparent conflict between 
 these authorities arises from the assumption, that some one *mo- [17 
 ment of time must be fixed from which both parties are bound absolutely ;. 
 an assumption, however, which is so much involved in the language of 
 the decisions, that it can not in practice be disregarded, though there is 
 nothing to prevent a Court of Appeal at any rate from sweeping it away. 
 It will further be seen that in any view of the results there is nothing to 
 prevent the proposer of a contract from guarding himself by making his 
 proposal expressly conditional on the arrival of an answer, not by return 
 of post or in course of post, but within some definite time. In such a 
 case it is apprehended that an answer arriving later, from whatever cause, 
 would not constitute a contract. 
 
 Besides these we have an important American case, Tayloe v. Mer- 
 chants' Fire Insurance Co., 9 How. 390, decided by the Supreme Court in 
 1850. The insurance company's agent wrote to the plaintiff offering to 
 insure his house on certain terms. The plaintiff wrote and posted a let- 
 ter accepting these terms, which was duly received. The day after it was 
 posted, but before it was delivered, the house was burnt. The objection 
 was made, among others, that there was no complete contract before the- 
 receipt of the letter, an assent of the company after the acceptance of 
 the proposed terms being essential. But the Court held that such a doc- 
 trine would be contrary to mercantile usage and understanding, and de- 
 feat the real intent of the parties. This decides that a contract is com- 
 plete as against the proposer by posting a letter which is duly delivered. 
 It may be useful to cite part of the judgment: — 
 
 (a) It seems not to have been disputed that the letter of allotment was in 
 fact sent within a reasonable time. 
 
 2 17 
 
18 CHAP. I. AGREEMENT, PROPOSAL^ AND ACCEPTANCE. 
 
 " The fallacy of the argument, in our judgment, consists in the assump- 
 tion that the contract can not be consummated without a knowledge on 
 the part of the company that the offer has been accepted. This is the 
 point of the objection. But a little reflection will show that in all oases 
 of contracts entered into between parties at a distance by correspondence 
 it is impossible that both should have a knowledge of it the moment it 
 becomes complete. This can only exist where both parties are present. 
 . . . It is obviously impossible ever to perfect a contract by corres* 
 pondence, if a knowledge of both parties at the moment they become 
 bound is an essential element in making out the obligation. ... It 
 seems to us more consistent with the acts and declarations of the parties 
 to consider it complete on the transmission of the acceptance of the 
 offer in the way they themselves contemplated, instead of postponing its 
 completion till notice of such acceptance has been received and assented 
 to by the company. 
 
 " For why make the offer, unless intended that an assent to its terms 
 18] should bind them ? And why require any further assent on their *part 
 after an unconditional acceptance by the party to whom it is addressed ? " 
 (pp. 400, 401.) 
 
 This decision seems, to add little if any thing to Adams v. Lindsell, unless 
 the narrowest possible view be taken of that case (a), 
 
 (a) [The English cases seem clearly to establish the law of that country to be, 
 that in contracts entered into by correspondence, while the proposal or revoca- 
 tion is a nullity, until actually received by the person to whom it is directed, 
 the acceptance, however, takes effect from the time when it is dispatched. The 
 American cases hold similarly in regard to proposal and revocation, and almost 
 uniformly state the rule as to the acceptance to be that it takes effect from 
 the time when it is dispatched, whether by post or by telegraph. Trevor v. 
 "Wood, 36 N. T. 807 ; Minnesota Oil Co. v. Collier Lead Co., 4 Dill. 431 ; Insur- 
 ance Co. v. Tuttle, 40 N. J. L. 476 ; Howard v. Daly, 61 N. T. 362 ; Hutcheson 
 v. Blakeman, 3 Met. (Ky.) 80; Mactier's Adm'rs v. Frith, 6 Wend. 103; Ham- 
 ilton v. Insurance Co., 5 Ta. St. 339; Stockham ■„. Stockham, 32 Md. 196, 208; 
 Vassar v. Camp, 11 N. Y. 441 ; "Washburn v. Fletcher, 42 Wis. 152; Bryant v. 
 Booze, 55 Ga. 438; Abbott v. Shepherd, 48 N. H. 14; Moore v. Pierson, 6 
 Clarke (la.) 279 ; Levy v. Cohen, 4 Ga. 1 ; Hallock v. Insurance Co., 2 Dutch. 
 268 ; 3 lb. 645 ; Insurance Co. v. Jenks, 5 Ind. 96. 
 
 Opposed to the current of authority, we have McCulloch v. Insurance Co., 1 
 Pick. 278, which holds that an acceptance by post has no effect until received 
 by the proposer. Although the rule that the acceptance takes effect from the 
 time it is dispatched has been thus generally sanctioned, yet as many of the 
 cases in which it is laid down would have been decided as they were, had effect 
 been given to the acceptance only from the time of its receipt, and others were 
 cases of unilateral contracts (see infra, p. 160, n. b), in which the question 
 does not properly arise at all, it may be permitted to point out some objections 
 tljat may be urged against it on principle. Putting aside any question of 
 agency, it can escape no one that if proposition 4 (supra, p. 11), in the text he 
 true, and if ,; communicating" an intention to a person means bringing it to 
 18 
 
INDIAN ACT THEREON. 18 
 
 The Indian Contract Act deals with the subject in the following man- 
 ner: 
 
 Chapter I. Of the Communication, Acceptance and Revocation of Pro- 
 posals. 
 
 " 3. The communication of proposals, acceptance of proposals, and the 
 revocation of proposals and acceptances, respectively, are deemed to be 
 
 "his knowledge, which is the sense in which the word is used in proposition 3 
 (supra, p. 10), then an acceptance, like a proposal, or a revocation, is of no ef- 
 fect until brought to the knowledge of the person for whom it is intended, and 
 that the mere posting can he of no more effect in the case of the one than in 
 that of the others. 
 
 Some of the cases, however, while admitting in effect that an acceptance is 
 ineffectual until communicated, give the effect of such communication to the 
 posting of the acceptance by resorting to the fiction that the post-office is the 
 proposer's agent to receive the acceptance. But it is clear that this is a misuse 
 -of the word agent. If a man afflicted with partial deafness were to' make a 
 proposal, and the reply were to be spoken into his ear-trumpet, or if a proposal 
 were made by telephone, and the reply were to be given by the same means, 
 no one would think of calling the ear-trumpet or the telephone the proposer's 
 agent to receive the acceptance. The post, the ear-trumpet, and the telephone 
 -are respectively the agencies employed to make known the acceptance, but not 
 the agents to receive it. Moreover, acceptances by mail are not made known 
 to the post-office officials; the contents of letters are not supposed to come to 
 their knowledge; but if an acceptance does not become effective until it is 
 made known, then when an agent is appointed to receive it, it can have no ef- 
 fect until it is made known to him, so that the fiction of considering the post 
 such agent only moves the difficulty one step forward without solving it. 
 
 It is sometimes said that the contract is complete at the moment of posting 
 the acceptance, because then the promisee has done an overt act expressing his 
 .assent to the offer, and has put the acceptance on its way to be transmitted to 
 the other party. But it is to be remembered that the case under consideration 
 is one of a contract upon reciprocal promises, and "in contracts where the 
 promise of one party is the consideration for the promise of the other, the 
 promises must be concurrent and obligatory upon both at the same time." 
 Tucker v. Woods, 12 Johns. 190; Livingstone v. Rogers, 1 Caines, 583; 
 Keep v. Goodrich, 12 Johns, 397; James v. Fulcrod, 5 Tex. 512; Turnpike Co. 
 v. Coy, 13 O. S. 84, 92. That is, both promises must exist at the same time, in 
 ■order to give rise to the contract, and the same reason which leads us to say 
 that the proposer's promise does not exist until communicated requires us to 
 say the same thing of the acceptor's promise. That reason is the fundamental 
 rule of the law of contracts that uncommunicated intentions count for nothing; 
 and as to one to whose knowledge another's intention has not yet been brought, 
 it must be considered uncommunicated, however clearly it may have been de- 
 termined upon, or even expressed to others. The inference drawn by the court 
 in Adams v. Lindsell (supra, pp. 13-14), that if the promisor is not bound un- 
 .til the receipt of the promisee's acceptance, then the promisee ought not to be 
 bound until after notification that his acceptance has been received and assented 
 Ho, and that this might go on ad infinitum, is not warranted; for in the absence 
 
 19 
 
19 CHAP. I. AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 made by any act or omission of the party proposing, accepting, or revok- 
 ing, by which he intends to communicate such proposal, acceptance, 01- 
 revocation, or which has the effect of communicating it.'' 
 
 [It would be difficult to find any such general statement in the English 
 authorities; and the language of this section is perhaps open to criti- 
 cism. A little reflection will show, however, that the substance of it is 
 taken for granted in the whole treatment of questions of contract in our 
 books.] 
 
 " 4. The communication of a proposal is complete when it comes to the 
 knowledge of the person to whom it is made. 
 
 The communication of an acceptance is complete as against the pro- 
 poser, when it is put in a course of transmission to him, so as to be out 
 of the power of the acceptor ; as against the acceptor, when it comes to 
 the knowledge of the proposer. 
 
 The communication of a revocation is complete as against the person 
 
 who makes it, when it is put into a course of transmission to the person 
 
 to whom it is made, so as to be out of the power of the person who 
 
 makes it; as against the person to whom it is made, when it comes to his 
 
 knowledge. 
 
 Illustrations. 
 
 (a). A. proposes by letter to sell a house to B. at a certain price. The- 
 comtnunication of the proposal is complete when B. receives the letter. 
 
 (6). B. accepts A.'s proposal by a letter sent by post. The communica- 
 tion of the acceptance is complete as against A. when the letter is posted ; 
 as against B. when the letter is received by A. 
 
 (c). A. revokes his proposal by telegram. The revocation is complete 
 as against A. when the telegram is dispatched. It is complete against B. 
 when B. receives it. 
 
 19] *B. revokes his acceptance by telegram. B.'s revocation is complete 
 as against B. when the telegram is dispatched, as against A. when it reaches, 
 him. 
 
 "5. A proposal may be revoked at any time hefore the communication 
 of its acceptance is complete as against the proposer, but not afterwards. 
 
 An acceptance may be revoked at any time before the communication 
 of the acceptance is completed as against the acceptor, but not afterwards. 
 
 Illustration. 
 A. proposes, by a letter sent by post, to sell his house to B. B. accepts 
 his proposal by a letter s.ent by post. A. may revoke his proposal at any 
 time before, or at the moment when B. posts his letter of acceptance, but 
 not afterwards. 
 
 of a revocation of the offer, communicated to the acceptor before receipt of the 
 acceptance, that assent is conclusively presumed. See this question examined 
 in Prof. Langdell's Summary, Langdell's Sel. Ca. Conts. 993 sqq. ; and see the* 
 dissenting opinions of Ld. Curriehill, in Thomson v. James, 18 Dunlop, 1 ;. and. 
 of Bramwell, L. J., in Insurance Co. v. Grant, 4 Ex. D. 216.] 
 20 
 
INDIAN ACT THEREON. 20 
 
 B. may revoke his acceptance at any time before or at the moment 
 ■when the letter communicating it reaches A., but not afterwards. 
 
 " 6. A proposal is revoked 
 
 (1.) By the communication of notice of revocation by the proposer to 
 the other party : 
 
 (2.) By the lapse of the time prescribed in such proposal for its accept- 
 ance, or if no time is so prescribed, then by the lapse of a reasonable time, 
 without communication of the acceptance [this seems intended, notwith- 
 standing the unqualified language of s. 5, to cover the case of an accept- 
 ance sent by post being lost or seriously delayed]. 
 
 (3.) By the failure of the acceptor to fulfill a condition precedent to ac- 
 ceptance; or, 
 
 (4.) By the death or insanity of the proposer, if the fad of his death or in- 
 sanity comes to the knowledge of the acceptor before acceptance." 
 
 [Of this presently : the words in italics do not represent English law.] 
 
 In the modern civil law the subject has apparently been found no less 
 troublesome than with us. Pothier's and Vangerow's opinions have al- 
 ready been referred to. From the last-named author it appears that there 
 is much conflict among German writers of repute; one or two seem to 
 have arrived (though in one case by a highly artificial course) at results 
 equivalent to those of the Indian Act (Vangerow, Pand. § 603, 3. 248, 
 251). Savigny holds that, as a matter of private international law, the. 
 place where a contract by correspondence is concluded is that from which 
 the acceptance is dispatched (Syst. 8. 235, 257) (a) : but he does not fur- 
 ther enter on the question. 
 
 ^Throughout the foregoing discussion it has been assumed, as [20 
 being rather a part of the notion of contract than an inference from 
 it, that there can be no contract unless the person accepting the 
 proposal at least does all he can to communicate the acceptance. 
 It was supposed at one time that the Companies Act, 1862, had in- 
 troduced a different rule in the case of agreements to take shares, 
 and that an applicant for shares became a shareholder by mere al- 
 lotment and registration, though nothing were done to give notice 
 
 (a) So, where a proposal was written and posted in one county court district, 
 and received and accepted in another, the Court of Q. B. held that the whole 
 cause of action arose in the district where it was received. Newcomb v. De 
 Koos, 2 E. & E. 270 ; 29 L. J., Q. B. 4. Conversely, where an offer to buy 
 goods is made by a letter posted in the city of London, and accepted by send- 
 ing the goods to the writer's place of business in the city, the whole cause of 
 action arises in the city. Taylor v. Jones, 1 C. P. D. 87 ; [Levy v. Cohen, 4 
 -Ga. 1 ; Boit v. Maybin, 52 Ala. 252 ; Mclntyre v. Parks, 3 Met. 207 ; Kline e. 
 Baker, 99 Mass. 253 ; Insurance Co. v. Tuttle, 40 N. J. L. 476 ; Milliken a. 
 Pratt, 125 Mass. 374; Tuttle v. Holland, 43 Vt. 542; "Webber v. Donnelly, 33 
 
 Mich. 469.1 
 
 21 
 
21 CHAP. I. AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 to him ; but it is now settled that this is not so ; the ordinary rules- 
 as to the formation of contracts must be applied (a). 
 
 We have seen that in general the contract dates from the accept- 
 ance ; and though the acceptance be in form an acknowledgment 
 of an existing agreement, yet this will not make the contract relate 
 back to the date of the proposal, at all events not so as to affect the- 
 rights of third persons (6). 
 
 There is believed to be one positive exception in our law to the 
 rule that the revocation of a proposal takes effect only when it is- 
 communicated to the other party. This exception is in the case of 
 the proposer dying before the proposal is accepted. This event is- 
 in itself a revocation, as it makes the proposed agreement impos- 
 sible by removing one of the persons whose eojisent would make- 
 it (c). There is no distinct authority to show whether notice to- 
 the other party is material or not ; but in the analogous case of 
 agency the death of the principal in our law, though not in the- 
 civil law, puts an end ipso facto to the agent's authority, without 
 regard to the time when it becomes known either to the agent or 
 to third parties (d). It would probably be impossible not to fol- 
 low the analogy of this doctrine. The Indian Act, as we have seen, 
 21] makes the knowledge of the other* party before acceptance a. 
 condition of the proposal being revoked by the proposer's death. 
 As for insanity, which is treated in the same way by the Indian Act,, 
 that would not operate as a revocation in any case by the law of 
 England, for we shall see that the contract of a lunatic (not so- 
 found by inquisition) is only voidable even if his state of mind is 
 known to the other party (e). 
 
 The next rule is in principle an exceedingly simple one. It is- 
 that 
 
 (a) Gunn's case, 3 Ch. 40. 
 
 (J) Felthouse v. Bindley, 11 C. B., N. S. 869 ; 31 L. J., C. P. 204. 
 
 (c) Per Mellish, L. J., in Dickinson v. Dodds, 2 Ch. D. at p. 475; [Pratt d- 
 Trustees (Sup. Ct. 111.), 10 C. L. J. 337.] 
 
 (d) Blades v. Free, 9 B. & C. 167; Campanari v. Woodburn, 15 0. B. 400; 
 24 L. J., C. P. 13; 2 Kent Coram. 646, D. 46, 3, de solut. et liberat. 32. The- 
 Indian Contract Act, s. 208, illust. (c), adopts the rule of the civil law. [See 
 infra, p. 236.] 
 
 (e) [In the Palo Alto, Davies, 348, it is said, that either the death or insanity 
 of the proposer before acceptance will operate as a revocation of the offer, and 
 this without notice.] 
 
 22 
 
•QUALIFIED ACCEPTANCE INSUFFICIENT. 22 
 
 5. " In order to convert a proposal into a promise the acceptance 
 must be absolute and unqualified" (a). 
 
 For unless and until there is such an acceptance on the one part 
 of terms proposed on the other part, there is no expression of one 
 and the same common intention of the parties, bat at most expres- 
 sions of the more or less different intontions of each party sepa- 
 rately—in other words, proposals and counter-proposals. Simple 
 and obvious as the rule is in itself, the application to a given set of 
 facts is not always obvious, inasmuch as contracting parties often 
 use loose and inexact language, even when their communications- 
 are in writing and on important matters. It will readily be seen, 
 that the question whether the language used on a particular occa- 
 sion does or does not amount to an acceptance is wholly a question 
 of construction, and generally though not necessarily the construc- 
 tion of a written instrument. The cases in which such questions 
 have been decided are numerous (b), and we shall here give by 
 way of illustration only a few of the most recent ones (c). 
 
 In Honeyman v. Marryat (of), before the House of Lords, a proposal for 
 a sale was accepted " subject to the terms of a contract being arranged " 
 between the vendor's and purchaser's solicitors : this was clearly no con- 
 tract. 
 
 In Appleby v. Johnson (e), the plaintiff wrote to the defendant, a calico- 
 printer, and offered his services as salesman on certain terms, among 
 which was this : " a list of the merchants to be regularly *called on by [22- 
 me to be made." The defendant wrote in answer: " Yours of yesterday 
 embodies the substance of our conversation and terms. If we can de- 
 fine some of the terms a little clearer, it might prevent mistakes; but I 
 
 (a) Indian Contract Act, s. 7, sub-s. 1. [Eliason v. Henshaw, 4 Wheat. 225 r 
 228; Harlow v. Curtis,. 121 Mass. 320; Hutcheson v. Blakeman, 3 Met. (Ky.) 
 80; Potts v. Whitehead, 23 N. J. Eq. 512; Plant Seed Co. v. Hall, 14 Kan. 553; 
 Jenness v. Mt. Hope Iron Co., 53 Me. 20; Hough v. Brown, 19 N. Y. Ill, 115; 
 Johnson v. Stephenson, 26 Mich. 63; Barrow v. Ker, 10 La. Ann. 120; M'Cotter 
 v. Mayor, 37 N. Y. 325 ; Bruner v. Wheaton, 46 Mo. 363 ; Deshon v. Fosdick, I 
 Woods, 286: N. W. Iron Co. v. Meade, 21 Wis. 474; Bank v. Hall, 101 U. S. 
 43, 50 ; Baker v. Johnson Co., 37 la. 186.] 
 
 (6) For collected authorities, see [inter alia) Fry on Specific Performance, c. 
 2, pp. 75 sqq. 
 
 (c) Cp. also the French case in the Court of Cassation given in Mr. Lang- 
 dell's selection, and already referred to on another point. 
 
 (d) 6 H. L. C. 112, by Lord Wensleydale. The case was not argued, no one 
 appearing for the appellant. 
 
 (e) L. K., 9 C. P. 158. 
 
 23 
 
23 CHAP. I AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 think we are quite agreed on all. We sball therefore expect you on Mon- 
 day. (Signed) — J. Appleby. — P.S. — I have made a list of customers 
 which we can consider together.'' It was held that on the whole and espe 
 cially having regard to the postscript, which left an important term open to 
 discussion, there was no complete contract. . . " Where a contract is to be 
 made out," said Grove, J., " by an offer on one side and an acceptance on 
 the other, if the answer is equivocal or any thing is left to be done, the 
 two do not constitute a binding contract. . . The second letter refers 
 to terms which required to be further considered to make a final agree- 
 ment. If the acceptance is not clear and certain, but leaves something 
 to be arranged, something for future discussion and decision, the parties 
 are not ad idem" (a). 
 
 In Crossley v. Maycock (A) an offer to buy certain land was accepted, 
 but with reference to special conditions of sale not before known to the 
 intending purchaser. Held only a conditional acceptance. 
 
 In Stanley v. Dowdeswell (c) an answer in this form : "I have decided 
 on taking No. 22, Belgrave Road, and have spoken to my agent, Mr. C, 
 who will arrange matters with you," was held insufficient to make a con- 
 tract, as not being complete and unqualified, assuming (which was doubt- 
 ful) that the letter of which it was part did otherwise sufficiently refer to 
 the terms of the proposal. 
 
 In Addinell's case (d) and Jackson v. Turquand (e), a bank issued a 
 circular offering new shares to existing shareholders in proportion to their 
 interest, and also asking them to say if in the event of any shares re- 
 maining they should wish to have any more. Certain shareholders wrote 
 in answer, accepting their proportion of shares, and also desiring to have 
 a, certain number of additional shares, if they could, on the terms stated 
 in the circular. In reply to this the directors sent them notices that the 
 additional shares had been allotted to them, and the amount must be 
 paid to the bank by a day named, or the shares would be forfeited. It 
 was held by Kindersley, V. C, and confirmed by the House of Lords, 
 that as to the first or proportional set of shares the shareholder's letter 
 was an acceptance constituting a contract, but as to the extra shares it was 
 only a proposal; and that as the directors' answer introduced a material 
 new term (as to forfeiture of the shares if not paid for within a certain 
 time), there was no binding contract as to these. 
 
 23] In Wynne's case (/) two companies agreed to amalgamate. The 
 agreement was engrossed in two parts, and contained a covenant by the 
 purchasing company to pay the debts of the other. But the purchasing 
 company (which was unlimited) before executing its own part inserted a 
 proviso limiting the liability of its members under this covenant to 
 
 (a) L. E, 9 C. P. 163-164. (b) 18 Eq. 180. 
 
 (c) L. B., 10 C. P. 102. Compare Smith v. Webster, 3 Ch. D. 49. 
 
 (d) 1 Eq. 225. (e) L. E., 4 H. L. 305. 
 </) 8 Ch. 1002. 
 
 24 
 
WHAT ACCEPTANCE SUFFICIENT. 24 
 
 ■the amount unpaid on their shares. This being a material new term, the 
 Tariance between the two parts as executed made the agreement void. 
 In this, and later in Beck's case (a), in the same winding up, a share- 
 holder in the absorbed company applied for shares in the purchasing 
 company credited with a certain sum according to the agreement, and re- 
 ceived in answer a letter allotting him shares to be credited with a "pro- 
 portionate amount of the net assets'' of his former company. It was 
 held that, apart from the question whether the allotment was conditional 
 •on the amalgamation being valid, there was no contract to take the 
 shares. 
 
 On the other hand, the following instances will show that the rule must 
 be cautiously applied. An acceptance may be complete though it ex- 
 presses dissatisfaction at some of the terms, if the dissatisfaction stops 
 short of dissent, so that the whole thing may be described as a " grumb- 
 ling assent" (b). 
 
 Again, an acceptance is of course not made conditional by adding worcl3 
 that in truth make no difference ; as where the addition is simply imma- 
 terial (c), or a more formal memorandum is inclosed for signature, but 
 not shown to contain any new term (d). And further, if the person 
 ^answering an unambiguous proposal accepts it with the addition of am- 
 biguous words, which are capable of being construed consistently with 
 the rest of the document and so as to leave the acceptance absolute, 
 they will, if possible, be so construed (e). And perhaps it is in like man- 
 ner open to the accepting party to disregard an insensible or repugnant 
 •qualification annexed to the proposal; as where a man offers to take 
 shares in a company, " if limited," which in contemplation of law he 
 must know to be not limited, and the directors allot shares and notify 
 the allotment to him without taking any notice of the attempted quali- 
 fication. But in the case referred to this view is not necessary to the re- 
 sult; for the applicant wrote a second letter recognizing the allotment. 
 The letter of allotment might, therefore, be treated as a counter-proposal, 
 viz., to allot shares in a company not limited, of which this last was the 
 *acceptance (/). And in fact there is one case somewhat against the [24 
 view here suggested ; the letter of allotment was headed " not transferable," 
 
 (a) 9 Ch. 392. 
 
 (S) Joyce v. Swann, 17 C. B. (N. S.) 84; Cp. per Lord St. Leonards, 6 H. L. 
 ■C. 277-278 (in a dissenting judgment). 
 
 (c) Clive v. Beaumont, 1 De G. & S. 397; [Clark v. Dales, 20 Barb. 42; 
 Brisban v. Boyd, 4 Paige, 17; Pitzhughi). Jones, 6 Munf. 83.] 
 
 (d) Gibbons v. N. E. Metrop. Asylum District, 11 Beav. 1. 
 
 '• (e) English and Foreign Credit Co. u. Ardwin, L. E., 5 H. L. 64 ; per Lord 
 ~Westbury, at p. 79. 
 
 (/) Perrett's ca., 15 Eq. 250. 
 
 25 
 
21 CHAP. I. AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 Apparently through a mere mistake of law, bo that on a fair construction* 
 it would seem to have been, not a really conditional acceptance, but an 
 acceptance with an imaginary and illusory condition, wrongly supposed 
 to be implied in the nature of the transaction ; but it was held that no- 
 contract was constituted (a). 
 
 Again, the unconditional acceptance of a proposal is not deprived of its 
 «ffect by the existence of a misunderstanding between the parties in 
 the construction of collateral terms which are not part of the agreement 
 itself (b). , 
 
 One further caution is needed. All rules about the formation 
 and interpretation of contracts are subject to the implied proviso, 
 " unless a contrary intention of the parties appears." And it may 
 happen that though the parties are in fact agreed upon the terms — 
 in other words, though there has been a proposal sufficiently ac- 
 cepted to satisfy the general rule — yet they do not mean the agree- 
 ment to be binding in law till it is put into writing or into a formal 
 writing. If such be the understanding between them, of course 
 they are not to be sooner bound against both their wills. "If to a 
 proposal or offer an assent be given subject to a provision as to a 
 contract, then the stipulation as to the contract is a term of the 
 assent, and there is no agreement independent of that stipula 
 tion " (c). Whether such is in truth the understanding is a ques- 
 tion of fact which depends on the circumstances of each particular 
 case (d). 
 
 It is not to be supposed, " because persons wish to have a formar 
 agreement drawn up, that therefore they can not be bound by a 
 previous agreement, if it is clear that such an agreement has beea 
 made (e) ; but the circumstance that the parties do intend a subse- 
 quent agreement to be made is strong evidence to show that they 
 did not intend the previous negotiations to amount to an agree- 
 to) Duke v. Andrews, 2 Ex. 290. 
 
 (A) Baines v. Woodfall, 6 C. B., N. S. 657; 28 L. J., C. P. 338. The facts 
 unfortunately do not admit of abridgment, 
 
 (c) Chinnock.©. Marchioness of Ely, 4 D. J. S. 638, 646; [Winn v. Bull, 7 
 Ch. D. 29 ; Water Commissioners v. Brown, 32 N. J. L. 504 ; Eads v. Oaron- 
 delet, 42 Mo. 113; Morrill v. Tehama Co., 10 Nev. 125; Congdon v. Davey, 46 
 t"t. 478; Fredericks v. Pashacht, 30 La. Ann. (pt. 1) 117.] 
 
 (d) See note (a) next page. 
 
 (*) [Brogden v. Metropolitan, By. Co., 2 App. Ca. 666 ; Blaney v. Hoke, 14 O. 
 S. 292; Montagues. Weil, 30 La. Ann. (pt. 1) 50; Pratt v. Eailroad Co., 21 N. 
 T. 305 ; Bell v. Offutl, 10 Bush, 632 ; Bonnewell v. Jenkins, 8 Ch. D. 70 ; Blight 
 v. Ashley,, 1 Pet. C. C. 15 ; Lewis v. Brass, 3 Q. B. D. 667 ; Mackey v. Mackey,. 
 29 Gratt. 158 ; Eossiter v. Miller, 3 App. Ca. 1124.] 
 26 
 
AGREEMENT MUST BE CERTAIN. 25- 
 
 ment" («); as for instance where conditions of sale expressly pro- 
 vide that the purchaser " will be required to sign a ^contract [25- 
 embodying the foregoing conditions " (b). James, L, J\, has lately 
 expressed disapproval of the practice of construing mere negotia- 
 tions into contracts. " On several occasions parties have found 
 themselves entrapped into a binding contract when they never 
 considered themselves to have entered into any agreement, but 
 thought they were settling only one term of the contract-^the 
 price " (c). 
 
 6. An agreement is not a contract unless its terms are certain or 
 capable of being made certain. 
 
 For the Court can not enforce an agreement without knowing 
 what the agreement is. Such knowledge can be derived only from 
 the manner in which the parties have expressed their intention. 
 If that expression has no definite meaning, there is nothing to go- 
 upon. The parties mny have come to a real agreement, but they 
 must take the consequences of not having made it intelligible (d). 
 Thus a promise by the buyer of a horse that if the horse is lucky 
 to him, he will give hi. more, or the buying of another horse, is 
 " much too loose and vague to be considered in a court of law." 
 " The buying of another horse " is a term to which the Court can 
 not assign any definite meaning (e). Questions of this kind, how- 
 ever, as well as those we spoke of in the last paragraph, arise 
 chiefly where the alleged contract is evidenced by writing; and 
 further the importance of the rule depends chiefly, if not wholly, 
 on the more general rule of evidence which forbids the contents or 
 construction of an instrument in writing to be varied or supple- 
 mented by word of mouth. Certain aspects of this rule will come 
 before us in a later chapter. On the rules of construction in gen- 
 
 (a) Bidgway ». Wharton, 6 H. L. 0. 238, 264, 268; per Lord Cranworth, 0. r 
 and see per Lord Wensleydale, at pp. 305-306 ; [Lyman v. Kobinson, 14 Allen, 
 242, 254 ; Brown v. Bailroad Co., 44 N. Y. 79, 86.] 
 
 (J) Bossiter v. Miller (C. A.), 5 Ch. D. 648 [reversed in H. L., 3 App. Ca.- 
 1124]. See, too, Chinnock v. Marchioness of Ely, supra. 
 
 (c) Smith v. Webster, 3 Ch. D. at p. 56; to the same effect, again, in Bossiter 
 v. Miller, 5 Ch. D. at p. 658. 
 
 (d.) [Adams «. Adams, 26 Ala. 272; Sherman ». Kitzmiller, 17 S.&E. 45; Buck- 
 master v. Consumers' Ice Co., 5 Daly, 313; Whelan v. Sullivan, 102 Mass. 204;. 
 Cummer v. Butts, 40 Mich. 322.] 
 
 le) Gutbing v. Lynn, 2 B. & Ad. 232. 
 
 . ' 27 
 
 / 
 
"26 CHAP. I. AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 eral we do not enter ; but we may mention shortly as a thing to 
 be borne in mind, that words are to be taken in the sense in which 
 they were understood by the parties using them ; and that, in the 
 -absence of any thing to show that a different meaning was contem- 
 plated,, is the sense in which a reasonable man acquainted with the 
 subject-matter would understand them. The question then is, can 
 26] such a sense be arrived at with reasonable certainty ? *One or 
 two instances will serve as well as many. An agreement to sell an 
 -estate, reserving " the necessary land for making a railway," is too 
 vague (a). An agreement to take a house "if put into thorough 
 repair," and if the drawing-rooms were " handsomely decorated ac- 
 cording to the present style" has also been dismissed as too uncertain 
 to be enforced (6). One might at first sight think it not beyond 
 the power of a reasonable man or twelve reasonable men fairly ac- 
 quainted with dwelling-houses to say whether the repairs and 
 decorations executed in a particular house do or do not answer the 
 above description. Itmnst be observed, however, that this was a 
 suit for specific performauce ; and a court of equity may, and 
 sometimes does, decline to grant that remedy on the ground that 
 the existence of a concluded contract is very doubtful, but without 
 undertaking to decide that no contract exists. Formerly, indeed, 
 it was the rule with courts of equity to leave questions of legal 
 right open as much as possible, but the modern tendency is the 
 other way. 
 
 To this head those cases ai'e perhaps best referred in which the 
 promise is illusory, being dependent on a condition which in fact 
 reserves an unlimited option to the promisor. " Nulla promissio 
 potest consistere, quae ex voluntate promittentis statum capit " 
 (c). Thus where a committee had resolved that for certain 
 services " such remuneration be made as shall be deemed right," 
 this gave no right of action to the person who had performed the 
 services ; for the committee alone were to judge whether any or 
 what recompense was right, (d). Moreover a promise of this kind, 
 though it creates no enforceable contract, is so far effectual as to 
 exclude the promisee from falling back on any contract to pay a 
 reasonable remuneration which would be inferred from the trans- 
 .action if there were no express agreement at all (e)., 
 
 (a) Pearce v. Watts, 20 Eq. 492. (b) Taylor v. Portington, 7, D. M. G. 328. 
 (e) D. 45. 1. de verb. obi. 108, \ 1. (d) Taylor v. Brewer, 1 M. & S. 290. 
 (e) [Where an article is to be produced which shall be satisfactory to the de- 
 
 28 , 
 
ILLUSORY PROMISES. " 2T 
 
 ■ In .Roberts v. Smith (a) there was an agreement between A. and 
 B. that B. should perform certain services, and that in one event 
 (let us say no. 1) A. should pay B. a certain salary, but that in an- 
 other event (no. 2) A. should pay B. whatever A. *might think [27 
 reasonable. Event no. 2 having happened, the Court held there 
 was no contract which B. could enforce. Services had indeed been- 
 rendered, and of the sort for which people usually are paid and 
 expect to be paid ; so that in the absence of express agreement 
 there would have been a good cause of action for reasonable re- 
 ward. But here B. had expressly assented to take whatever A.- 
 should think reasonable (which might be nothing), and had thus 
 precluded himself from claiming to have whatever a jury should 
 think reasonable. It is submitted, however, that it would not be 
 safe to infer from this case that under no circumstances whatever- 
 can a promise to give what the promisor shall think reasonble 
 amount to a promise to give a reasonable reward, or at all events 
 something which a jury can find not to be illusory. The circum- 
 stances of each case (or in a written instrument the context) must 
 be looked to for the real meaning of the parties: and "I leave it 
 to you " may well mean in particular circumstances (as in various 
 small matters it notoriously does) " I expect what is reasonable and 
 usual, and I leave it to you to find out what that is," or "I 
 expect what is reasonable, and am content to take, your esti- 
 mate (assuming that it will be made in good faith and not illu- 
 sory) as that of a reasonable man." 
 
 Another somewhat curious case of an illusory promise (though 
 mixed up to some extent with .other d oc trines) is Moorhouse v. 
 Colvin (A). There a testator, having made a will by which he 
 left a considerable legacy to his daughter, wrote a letter in which 
 he said, after mentioning her other expectations, " this is not all ; 
 she is and shall be noticed in my will, but to what further amount 
 I can not precisely say." The legacy was afterward revoked. It 
 was contended on behalf of the daughter's husband, to whom the 
 letter had, with the testator's authority, been communicated before 
 
 fendant, if he refuses, though from mere caprice, to he satisfied therewith, nei- 
 ther the contract price nor reasonable remuneration can be recovered. Zaleski 
 v. Clark, 44 Conn. 218 ; McCarren v. McNulty, 7 Gray, 139 ; Brown v. Foster, 
 113 Mass. 136 j but see Daggett v. Johnson, 49 Vt. 345.] 
 
 (a) 4 EL & N. 315 ; 28 L. J. E*. 164. 
 
 (6) 15 Beav. 341, 348 ; affid. by L. JJ., lb. 350, n. ; [See Graham v. Graham,. 
 34 Pa. St. 475 : Thompson v. Stevens, 71 Pa. St. 161.] 
 
 29 
 
"28 CHAP. I. AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 the marriage, that there was a contract binding the testator's estate 
 to the extent of the legacy given by the will as it stood at the date 
 .of the letter. But it was held that the testator's language expressed 
 nothing more than a vague intention, although it would have been 
 binding had it referred to the specific sum then standing in the 
 will, so as . to fix that sum as a minimum to be expected at all 
 -events. 
 
 28] *" He expressly promises such provision only as he in his will and 
 pleasure shall think fit. If, on her marriage, the testator. had said, 'I 
 will give to my child a proper and sufficient provision,' the Court might 
 ascertain the amount; but if the testator had said, 'I will give to my 
 -child such a provision as I shall choose,' would it be proper for the Court 
 (if he gave nothing) to say what he ought to have given ?" 
 
 7. The proposal or acceptance of an agreement may be commu- 
 nicated by conduct as well as by words (a) ; and proposals and ac- 
 ceptances so communicated are governed, as near as may be, by 
 the same rules as if they had been made in express words. 
 
 It would be as difficult as it is needless to adduce distinct au- 
 thority for this proposition. Cases are of constant occurrence, and 
 naturally in small matters rather than in great ones, where the pro- 
 posal, or the acceptance, or both, are signified not by words but by 
 acts. For example, the passenger who steps into a ferry-boat 
 thereby requests the ferryman to take him over for the usual fare, 
 .and the ferryman accepts this proposal by putting off. 
 
 A promise made in this way is said to be implied; it seems 
 preferable, however, to use the word inferred, to distinguish the 
 real though tacit promise in these cases from the fictitious promise 
 "implied by law," as we shall immediately see, in certain other 
 •cases where there is no real contract at all, but an obligation quasi 
 .ex contractu (6). Sometimes, no doubt, it is difficult to draw the line 
 between the two. " Where a relation exists between two parties 
 which involves the performance of certain duties by one of them, 
 and the payment of reward to him by the other, the law will imply 
 /■[quasi-contract] or the jury may infer [true contract] a promise by 
 • each party to do what is to be done by him" (c). It was held in 
 the case cited that an innkeeper promises in this sense to keep his 
 
 (a) [See Brogden v. Metropolitan Ry. Co., 2 App. Ca. 666 ; Miller v. McManis, 
 57 111.126.] 
 
 (b) [See Bixby v. Moore, 51 N. H. 402. "An implied promise does not differ 
 from an express promise, except in the evidence by which it is proved." Chil- 
 
 ..cot v. Trimble, 13 Barb. 502.] 
 
 (c) Per Cur. Morgan v. Kavey, 6 H. & N. 265; 30 L. J. Kx. 181. 
 
 30 
 
QUASI-CONTRACTS. 29 
 
 guests 1 goods safely. The case of a carrier is analogous. So where 
 A. does at B.'s request something not apparently illegal or tortious, 
 but which in fact exposes A. to an action at the suit of a third 
 person, it seems to be not a proposition of law, but an inference of 
 fact which a jury may reasonably find, that B. muBt be taken to 
 have promised to indemnify A. (a). 
 
 *Tacit proposals and acceptances must, like express ones, be [29 
 •communicated. If A., with B.'s knowledge, but without any express 
 request, does work for B. such as people as a rule expect to be paid 
 for, if B. accepts the work or its result, and if there are no special 
 ■circumstances to show that A. meant to do the work for nothing, 
 or that B. honestly believed that such was his intention, there is 
 no difficulty in inferring a promise by B. to pay what A.'s labor 
 is worth. And this is a pure inference of fact, the question being 
 •whether B.'s conduct has been such that a reasonable man in A.'s 
 position would understand from it that B. meant to treat the work 
 as if done to his express order. The doing of the work with 
 B.'s knowledge is the proposal of a contract, and B.'s conduct 
 is the acceptance (b). The like inference can not be made if the 
 work is done without B.'s knowledge. For by the hypothesis the 
 doing of the work is not a proposal, not being, communicated at 
 the time: B. has no opportunity of approving or countermanding 
 it, and can not be bound to pay for it when he becomes aware of 
 the facts, although he may have derived some benefit from the 
 work; it maybe impossible to restore or reject that benefit without 
 giving up his own property (c). Nor is the case altered if A. 
 comes to B. and tells him that the work is done and requests to be 
 paid for it. This is indeed a proposal, but a new and distinct one ; 
 and as it imports no new consideration, B.'s acceptance of it would 
 be a merely gratuitous promise, and as such would make no con- 
 tract. 
 
 But it does not follow, that because there is no true contract, 
 there may not be cases falling within this general description in 
 which it is just and expedient that an obligation analogous to con- 
 tract should be imposed upon the person receiving the benefit (d). In 
 
 (a) Dugdale v. Covering, L. E., 10 C. P. 196. 
 
 (4) [Day v. Caton, 119 Mass. 513.] 
 
 (o) Cp. dicta of Pollock, C. B., 25 L. J. Ex., at p. 332, Leake, 28 [2d ed. 58, 
 59]; [Davis v. School Dist. No. 2, 24 Me. 349, 351; Bartholomew v. Jackson, 
 20 Johns. 28.] 
 
 (d) [People v. Speir, 77 N. T. 144, 150.] 
 
30 CHAP. I. AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 fact there are such cases ; and as the forms of our common law did 
 not recognize quasi-contracts in any distinct manner, these cases 
 were dealt with by the fiction of an implied previous request,, 
 which often had to be supplemented (as in the action for money 
 had and received) by an equally fictitious promise. The promise,, 
 actual or fictitious, was then supposed to relate back to the fic- 
 titious request, so that the transaction which was the real founda- 
 tion of the matter was treated as forming the consideration in a 
 30] fictitious contract of the regular type. And *thus here, as in 
 many other instances, the law was content to rest in a compromise' 
 between the forms of pleading and the convenience of mankind. 
 These fictions have long ceased to appear on the face of our plead- 
 ings, but they have become so established in legal language that it 
 is still necessary to understand them. But we do not further pur- 
 sue this topic(a). The Indian Act provides for matters of this- 
 kind more simply in form and more comprehensively in substance 
 than our present law, by a separate chapter entitled, "Of certain 
 Belations resembling those created by contract" (ss. 68-72 cp. 
 s. 73). 
 
 Conduct which is relied on as constituting the acceptance of an 
 actual contract, must (no less than words relied on for the same 
 purpose) be unambiguous and unconditional (b). 
 
 When the proposal itself is not express, then it must also be 
 shown that the conduct relied on as conveying the proposal was 
 such as to amount to a communication to the other party of the 
 proposer's intention. Difficult questions may arise on this point, 
 and in particular have arisen in cases where public companies en- 
 tering into contracts for the carriage or custody of goods have- 
 sought to limit their liability by special conditions printed on a 
 ticket delivered to the passenger or depositor at the time of mak- 
 ing the contract. The tendency of the earlier cases on the subject 
 is to hold that (apart from the statutory restrictions of the Bail- 
 way and Canal Traffic Act, 1854, which do not apply to contracts 
 with steamship companies, nor to contracts with railway compa- 
 nies for the mere custody as distinguished from the carriage of 
 goods) such conditions are binding. A strong opposite tendency 
 
 (a) See notes to Lampleigh v. Braithwaite, 1 Sm. L. 0., and Osborne v. Rog- 
 ers, 1 Wms. Saund. 357. 
 
 (») "Warner v. "Willington, 3 Drew. 523, 533. 
 32 
 
QUASI-CONTRACTS. 31 
 
 is shown in Henderson v. Stevenson (a), where the House of Lords- 
 decided that in the case of a passenger traveling by sea with his 
 luggage, an indorsement stating that the shipowners will not be 
 liable for loss does not prevent him from recovering lor loss 
 caused by their negligence, unless it appears either that he knew ;<nd 
 assented to the special terms, or at any rate that he knew there were 
 some special terms and ^was content to accept them without [81 
 examination. Since this there have been two reported eases aris- 
 ta) L. E., 2 Sc. & D. 470. Lord Chelmsford's and Lord Hatherley'satota (pp. 
 477, 479) go farther, and suggest that the contract is complete before the ticket 
 is delivered at all, so that some other communication of the special terms 
 would have to be shown. [See Malone v. Railroad Co., 12 Gray, 388 ; Brown 
 v. Bailroad Co., 11 Cush. 97 ; Wilson v. Railroad Co., 21 Gratt. 654 ; Madan v. 
 Sherard, 73 N. Y. 329. 
 
 Cp. Burke v. Railway Co., 5 C. P. P. 1 ; Steers u. Steamship Co., 57 N. Y. 1. ' 
 Common carriers, it is to be remembered, are bound to serve every one who 
 applies to them, and to their calling certain duties and liabilities are, by law, 
 attached ; it requires no contract to create these ; it does require one to divest 
 them. It is well settled that a mere notice is not enough to relieve the carrier 
 from his common-law liability, without proof of its having been actually seen 
 and assented to by the other party. When goods are delivered to a carrier 
 under ageneral notice, if any implication is to be indulged in, " it is as strong 
 that the owner intended to insist upon his rights as it is that he assented to- 
 their qualification." New Jersey Steam Nav. Co. v. Bank, 6 How. 344, 383 ; 
 Hollister v. Nowlen, 19 W T end. 234; Judson v . Railroad Co., 6 Allen, 486, 491; 
 Jones v. Voorhees, 10 Ohio, 145 ; Bailroad Co. v. Manufacturing Co., 16 WalL 
 318 ; Moses v. Railroad Co., 24 N. H. 71 ; Same v. Same, 32 N. H. 523. 
 
 When, concurrently with his delivery of goods to the carrier, a bill of lading, 
 sontaining restrictive conditions, is given to the shipper and retained by him, 
 it is held in some states that he is estopped to deny that he assented to its- 
 terms, and that evidence to show that he never read it is inadmissible. Insur- 
 ance Co. v. Railroad Co., 72 N. Y. 90 ; Hill v. Railroad Co., 73 N. Y. 351 ; Grace 
 v. Adams, 100 Mass. 505 ; McMillan v. Railroad Co., 16 Mich. 80 ; Railroad Co. 
 v. Brownlee, 14 Bush, 590 ; Lawson, Contracts of Carriers, g 102. But cp., on 
 the other hand: Transportation'Co. v. Dater, 91 111. 195; Express Co. v. Moon, 
 39 Miss. 822; Express Co. u.Haynes, 42 111. 89; Express Co. v. Stettaners, 61 
 111. 184; Levering v. Transportation Co., 42 Mo. 88; Nock v. Railroad Co., 2 
 Duval, 562 ; Railroad Co. v. Manufacturing Co., 16 Wall. 318. 
 
 Where goods are delivered to the carrier under a verbal contract, and after- 
 wards a bill of lading, containing restrictive conditions, is given to the shipper, 
 it requires not only the express assent of the shipper, but also a new considera- 
 tion for the release of the carrier from his common-law liability. Railroad Co- 
 v. Reynolds, 17 Kan. 251 ; Gott u. Dinsmore, 111 Mass. 45 ; Gaines v. Trans- 
 portation Co., 28 O. S. 418 ; Railroad Co. v. Boyd, 91 111. 98 ; Bostwick v. Rail- 
 road Co., 45 N. Y. 712. See 5 C. L. J. 134.] 
 
 3 33 
 
32 CHAP. I. AGREEMENT, PROPOSAL, AND ACCEPTANCE. 
 
 ing out of the deposit of goods at a railway company's cloak-room 
 in exchange for a ticket, on which were indorsed conditions limit- 
 ing the amount of the company's liability (a). The result, as it 
 stands at present, appears to be that it is a question of fact in each 
 ■case whether the notice given by the company was reasonably suf- 
 ficient to inform the depositor at the time of making the contract 
 that the company intended to contract only on special terms. A 
 person who, knowing (or having reasonable means of know- 
 ing?) (6) this, enters into the contract, is then deemed to assent to 
 the special terms ; but this, again, is probably subject to an implied 
 condition that the terms are relevant and reasonable. The whole 
 •subject, however, still remains by no means free from uncertainty. 
 
 We now give the remaining sections of the Indian Contract Act 
 as to proposal and acceptance : — \ 
 
 " 7. In order to convert a proposal into a promise, the acceptance must 
 
 (1) be absolute and unqualified [of this we have already spoken]; 
 
 (2) be expressed in some usual and reasonable manner, unless the pro- 
 posal prescribes the manner in which it is to be accepted. If the proposal 
 prescribes a manner in which it is to be accepted, and the acceptance is 
 not made in such manner, the proposer may, within a reasonable time 
 after the acceptance is communicated to him, insist that his proposal 
 shall be accepted in the prescribed manner, and not otherwise ; but if he 
 fails to do so, he accepts the acceptance. [Cp. the late case of Leather- 
 Cloth Co. v. Hieronimus (c). There goods were ordered to be sent by an 
 unusual route for a special reason ; this reason ceased to exist before the 
 •order could be executed, and the goods were sent by the usual route; the 
 Court held that this, being acquiesced in by the buyer, was a sufficient 
 performance of the original contract, and not of a substituted contract; 
 and therefore no special memorandum of such alleged substituted con- 
 tract was required to satisfy the Statute of Frauds (rf)]. 
 
 32] *"8. Performance of the conditions of a proposal, or the acceptance 
 of any consideration for a reciprocal promise which may be offered with 
 a proposal, is an acceptance of the proposal. 
 
 (ay Harris v. G. W. R. Co., 1 Q. B. D. 515 ; Parker v. 8. E. K. Co., Gabell v. 
 S. E. R. Co., 2 C. P. D. 416, revg. in Parker's case the judgment of the C. P. 
 Div., 1 C. P. D. 618. 
 
 (6) It seems very difficult to maintain this on principle. Actual knowledge 
 may of course be inferred as a fact from reasonable means of knowledge. 
 
 (c) L. R., 10 Q. B. 140. 
 
 {d) See further, as to the difference between a substituted agreement and sub- 
 stituted performance. Sanderson v. Graves, L. R., 10 Ex. 234; Hickman v. 
 Haynes, L. R.. 10 C. P. 598; Plevins v. Downing, 1 C. P. D. 220; [Cummings 
 v. Arnold, 3 Met. 486; Stearns <t>. Hall, 9 Cush. 31 ; Whittier v. Dana, 10 Al- 
 len. 326; Long v. Hartwell, 34 N. J. L. 116; Swain v. Seamans, 9 Wall. 264.] 
 34 
 
INDIAN CONTRACT ACT. 33 
 
 "9. In so far as the proposal or acceptance of any promise is made in 
 "words, the promise is said to be express. In so far as such proposal or 
 acceptance is made otherwise than in words, the promise is said to be im- 
 plied." 
 
 The performance etc., in s. 8, must of course, like an acceptance 
 in any other manner or form, be communicated to the proposer. 
 Subject to this caution, these sections are believed to represent 
 English law with sufficient exactness to need no further comment. 
 
 Finally, it may be of some interest to compare with the English 
 and Anglo-Indian law the provisions of the German Commercial 
 Code as to the formation of contracts : 
 
 " 318. When a commercial contract is proposed between parties present 
 at the same time, the acceptance must be immediate ; otherwise the pro- 
 poser is no longer bound to his proposal, j- 
 
 319. When a proposal is on foot between parties at a distance, the pro- 
 poser remains bound until the time at which he may fairly expect an an- 
 swer to reach him, if dispatched in ordinary course and in due time.f 
 In estimating this time he may assume that his proposal was duly re- 
 ceived [surely not if, as in Adams v. Lindsell (a), it was delayed by his 
 own negligence ?] 
 
 In the event of an acceptance dispatched in due time not arriving till 
 -after such time as aforesaid, no contract is concluded, if the proposer has 
 given notice of revocation in the meantime, or gives it forthwith (ohne 
 Verzug) on receiving the acceptance.'' 
 [The clauses marked f seem only to say, in a rather elaborate way, that 
 . a proposal is revoked by the lapse of a reasonable time without accept- 
 ance; s. 319, however, tacitly involves the important proposition that an 
 answer which never arrives, whether sent by post or otherwise, can not 
 conclude a contract.] 
 
 320. When the revocation of a proposal reaches the other party before 
 •or at the same time with the proposal itself, the proposal is deemed null 
 aad void (istfur nicht geschehen zu erachten). 
 
 In like manner the acceptance is deemed null and void if the revoca- 
 tion has been communicated to the proposer before the acceptance, or at 
 the same time with it. 
 
 *321. When an agreement has been concluded between parties at a [33 
 ■ distance, the conclusion of the agreement is to be dated from the time at 
 which the communication of the acceptance was delivered for dispatch 
 '■[sc. out of the acceptor's control ?] (in wetehem die ErTclarung der Annahme 
 Behufs der Absendung abgegeben ist.) 
 
 322. An acceptance subject to conditions or reservations is equivalent 
 4o a refusal coupled with a new proposal." 
 
 (a) 1 B. & Aid. 681, p. 13 supra. 
 
 35 
 
34,35 CHAP. II. CAPACITIY OF PARTIES. 
 
 *CHAPTEE n. 
 
 CAPACITY OF PARTIES. 
 
 Part I. — Of Natural Persons. 
 I. Infants. 
 
 The exceptions to the capacity of natural persons to bind them- 
 selves by contract are infancy, coverture, and insanity (a). Of these- 
 in order. 
 
 An infant, i.e., a person less than twenty-one years old (Co. Lit.. 
 171 6), is not absolutely incapable of binding himself, but is, gener- 
 ally speaking, incapable of absolutely binding himself by contract 
 (b). His acts and contracts are voidable at his option, subject to- 
 certain statutory and other exceptions, which are partly definite, 
 partly not definable in terms but capable of reasonable definition 
 in practice, and partly both indefinite and doubtful. The follow- 
 ing seems the nearest approach to a statement in general terms that 
 can safely be made. 
 
 By the common law a contract made by an infant is generally 
 voidable at the infant's option, such option to be exercised either 
 before (c) his attaining his majority or in a reasonable time after- 
 wards. 
 
 Where the obligation is incident to an interest (or at all events 
 to a beneficial interest) in property, it can not be avoided while- 
 such interest is retained. 
 
 Exceptions — 
 
 A. Void agreements. 
 
 By the Infant's Eelief Act, 1874, loans of money to infants, con- 
 35] tracts for the sale to them of goods other than necessaries, *and 
 accounts stated with them are absolutely void ; and no action can be 
 brought on a ratification of any contract made during infancy. 
 
 When the agreement of an infant is. such that it can not be for 
 bis benefit, it is said to be absolutely void at common law ; but this- 
 
 (a) [And formerly, in this country, slavery; Hall v. U. S., 92 U. S ( 27.] 
 (6) Stated in this form by Hayes, J„ 14 Ir. C. L. E., at p. 356. 
 (< ) As to this, see p. 42. 
 36 
 
CONTRACTS OF INFANTS. 36 
 
 •distinction is exceedingly doubtful, if not altogether exploded by 
 modern authorities. 
 
 B. Valid contracts. 
 
 An infant's contract is valid if it appears to the Court to be bene- 
 ficial to the infant, and in particular if it is for necessaries. 
 
 Explanations. — " Necessaries " include all such goods, commodi- 
 ties, and services as are reasonably necessary for the use and bene- 
 fit of a person in the circumstances and condition of life of the con- 
 tracting party. 
 
 Moreover in certain cases infants are enabled to make binding 
 contracts by custom or statute. 
 
 An infant is not liable for a wrong arising out of or immediately 
 connected with his contract, such as a fraudulent representation at 
 the time of making the contract that he is of full age. But an in- 
 fant who has represented himself as of full age is in a Court of 
 Equity bound by payments made and acts done at his request and 
 on the faith of such representations, and is liable to restore any ad- 
 vantage he has obtained by such representations to the person from 
 whom he has obtained it. 
 
 We proceed to speak in detail of the different parts of the sub- 
 ject, and 
 
 1. Of the contracts of infants in general at common law (and as 
 affected by the Act of 1874). It will be convenient to depart some- 
 what from the order of the foregoing general statement for the pur- 
 pose of considering this whole subject together. It is commonly said 
 that an agreement made by an infant, if such that it can not be for 
 his benefit, is not merely voidable, but absolutely void ; though in 
 general his contracts are only voidable at his option (a). This dis- 
 tinction, it is submitted, is in itself unreasonable, and is supported 
 by little or no real authority, *while there is considerable au- [36 
 thority against it. The unreasonableness of it seems hardly to need 
 any demonstration. The object of the law, which is the protection of 
 the infant, is amply secured by not allowing the contract to be en- 
 forced against him during his infancy, and leaving it in his option 
 to affirm or repudiate it at his full age (b). Moreover the distinc- 
 tion is arbitrary and doubtful,- for it must always be difficult to say 
 
 (a) Another distinction is made as to deeds taking complete effect by deliv- 
 ery or otherwise. See Shepp. Touchst. 233 ; Co. Lit. 51 b, note ; 3 Burr. 1805; 
 
 2 Dr. & W. 340. But this is of little practical importance, and not material to 
 ■the present subject. 
 
 (b) "We are now speaking only of the common law. 
 
 37 
 
37 CHAP. II. CAPACITY OF PARTIES. 
 
 whether a particular contract can not possibly be beneficial to the- 
 party. As for the authorities, the word void is no doubt frequently- 
 used : but then it is likewise to be found in cases where it is quite- 
 settled that the contract is in truth only voidable. And as applied 
 to other subject-matters it has been held to mean only voidable in 
 formal instruments (a) and even in Acts of Parliament (b). The 
 fact is (as was justly remarked in the argument of a modern case 
 we shall presently cite) that there is " a constant confusion in the 
 books," and sometimes even in recent books, " between void and 
 voidable," (c), so that the language of text-writers, of judges, and. 
 even of the legislature, is no safe guide apart from actual decisions,' 
 But when we look at the decisions they appear to establish in the 
 cases now in question only that the contract can not be enforced' 
 against the infant, or some other collateral point equally consistent 
 with its being only voidable, except when they show distinctly that, 
 the contract is voidable and not void. Thus an infant's bond with- 
 a penalty and conditioned for the payment of intei'est has been sup- 
 posed to be wholly void ; but nothing more is decided than that 
 being under seal it can not be ratified save by an act of at least 
 equal solemnity with the original instrument: in the case referred 
 to one judge (Bayley, J.) rested his judgment simply on the law- 
 stated by Coke, who only says that an infant's bond with a penalty, 
 even if given for necessaries, shall not bind him (<£). A stronger 
 case is Thornton v. Illingworth (e), where the judges said in terms,. 
 37] that an infant's ^contract to buy goods for the purposes of trade- 
 is absolutely void, not voidable only ; but all that had to be decided 
 was that a ratification after action brought was no answer to the de- 
 fense of infancy; and the dicta, as pointed out by Mr. Benjamin,, 
 are inconsistent with a former case of higher authority (but which 
 seems not to have been cited) where an infant was allowed to sue 
 on a trading contract for the purchase of chattels, the only special 
 circumstance being that he had already paid part of the price, sck- 
 
 (a) Lincoln College oa., 3 Co. Kep, 596; Doe d. Bryan v. Bancks, 4 B. <&r. 
 Aid. 401 ; Malins v. Freeman, 4 Bing. (N. C.) 395. 
 
 (5) See Governors of Magdalen Hospitals. Knotts, 5 Ch. D. 175. 
 
 (c) Petersdorff, arg. 11 M. & W. 261. [See remarks of Bell, J., in State «... 
 Eichmond, 6 Poster, 232; Allis v. Billings, 6 Met. 415; Pearsoll v. Chapin, 44- 
 Pa. St. 9.] 
 
 (d) Baylis v. Dineley, 3 M. & S. 477 ; Co. Lit. 172 o. 
 (ej 2 B. & C. 824. 
 
 38 
 
CONTRACTS OP INFANTS. 39 
 
 that it was clearly for his benefit that he should be able to enforce 
 the contract: on this ground the decision was put in the Court of 
 E. B. by Lord Ellenborough, but the broader opinion was ex- 
 pressed by Dampier, J., that the other party could in no ca.se avoid 
 the contract, and that the contracts of infants are as to their valid- 
 ity of two kinds only, those which are clearly for the infant's 
 benefit and therefore bind him, and those which are not so and are 
 voidable at his option. The Court of Exchequer Chamber affirmed 
 the judgment without calling on counsel to support it, holding that 
 «' the general law is that the contract of an infant may be avoided 
 or not at his own option," and that this case was no exception (a).. 
 In a much later case the following opinion was given by the Court 
 of Queen's Bench on the conviction of a servant for unlawfully 
 absenting himself from his master's employment : — 
 
 "Among many objections one appears to us clearly fatal. He was an 
 infant at the time of entering into the agreement, which authorizes the 
 master to ; stop his wages when the steam engine is stopped working for 
 any cause. An agreement to serve for wages may be for the infant's 
 benefit (6); but an agreement which compels him to serve at all times 
 during the term but leaves the master free to stop his work and his wages 
 whenever he chooses to do so can not be considered as beneficial to the 
 servant. It is inequitable and wholly void. The conviction must be- 
 quashed " (<;). 
 
 But this decided only that the agreement was not enforceable 
 against the infant. The Court can not have meant to say that if the 
 master had arbitrarily refused to pay wages for the work *ac- [38 
 tually done the infant could not have sued him on the agreement. 
 Again, it is said that a lease made by an infant, without reservation 
 of any rent (or even not reserving the best rent), is absolutely void. 
 But this opinion is strongly disputed in Bacon's Abridgment, and 
 also disapproved by Lord Mansfield, whose judgment Lord St. Leon- 
 ards has adopted as good law, though the actual decision was not 
 on this particular point in either case (e) And in a modern Irish 
 
 (a) Benjamin on Sale, 23 [2d Am. ed. 29] ; Warwick o. Bruce, 2 M. & S. 
 205, in Ex. Ch., 6 Taunt. 118. 
 
 (b) It seems that prima facie it is so, even if it contains clauses imposing- 
 penalties, etc., in certain events; Wood v. Fen wick, 10 M. & W. 195. 
 
 (c) Beg. v. Lord, 12 Q. B. 757; 17 L. J. M. 0. 181, where the head note 
 rightly says, " void against the infant? [See further, Leslie v. Pitzpatrick, 3. 
 Q. B. D. 229.] 
 
 (e) Bac. Ab. 4. 361 ; Zouch v. Parsons, 3 Burr. 1794 (where the decision was- 
 that the reconveyance of a mortgagee's infant heir, the mortgage being prop- 
 
 39 
 
38 CHAP. II. CAPACITY OP PARTIES. 
 
 case (a) it has been expressly decided that at all events a lease 
 made by an infant reserving a substantial rent, whether the best 
 rent or not, is not void but voidable ; and further that it is not well 
 avoided by the infant granting another lease of the same property 
 to another person after attaining his full age. The Court inclined 
 to think that some act of notoriety by the lessor would be required, 
 such as entering, bringing ejectment, or demanding possession; 
 however there was another reason, namely, that the second lease 
 might be construed as only creating a future interest to take effect 
 on the determination of the first. With regard to the first reason 
 it seems to have been thought not immaterial that a freehold estate 
 (for the life of the lessor or twenty-one years had passed by the 
 original lease (b). There is good English authority for the propo- 
 sition that if a lease made by an infant is beneficial to him he can 
 
 ■erly paid off, could not be avoided by his entry before full age) ; Allen v. Allen, 
 ■2 Dr. & W. 307, 340. 
 
 (ra) Slator v. Brady, 14 Ir. C. L. 61. 
 
 (b) [If an infant make a feoffment of land, since he must be in possession to 
 make it, he must again re-enter, in order to avoid it; and hence his mere deed 
 to another, without a re-entry, is not a disaffirmance of the feoffment first made. 
 But in this country conveyance by bargain and sale, and not by feoffment, is 
 -the mode generally adopted, and hence a re-entry by the infant is not usually 
 necessary. Where the infant remains in possession of the land granted by 
 him, his deed to another, on arriving at majority, is a complete disaffirmance; 
 ■where the grantee of the infant goes into possession, there a subsequent deed 
 of the infant will, or will not be effectual as a disaffirmance, according as the 
 law of the state where the land lies is, or is not, that one out of possession of 
 land can make a good deed of it without re-entry. Tucker v. Moreland. 10 
 Pet. 58; Cresinger v. "Welch, 15 Ohio, 156; Jackson v. Carpenter, 11 Johns. 
 539; Jackson v. Burchin, 14 Johns. 124; Bool v. Mix, 17 "Wend. 119; Hoyle v. 
 Stowe, 2 Dev. & Bat. L. 320; Scott v. Buchanan, 11 Humph. 468, 473-474; 
 Harris v. Cannon, 6 Ga. 382 ; Mustard v. Wohlford, 15 Gratt. 329 ; Norcum v. 
 Shehan, 21 Mo. 25. 
 
 In Biggs v. Fisk, 64 Ind. 100, it was held that although a conveyance, made 
 by a grantor on attaining the age of twenty-one years, of lands adversely held 
 by one claiming title thereto, under a conveyance made by the same grantor 
 •during his infancy, is void as against the adverse holder, yet it operates as a 
 disaffirmance of the first deed, and authorizes the grantee thereunder to sue the 
 adverse holder in the name of the grantor, for the recovery of such lands. 
 
 In order that a later deed should operate as a disaffirmance of an earlier, the 
 two must be so inconsistent that both can not stand together. McGann v. Mar- 
 shall, 7 Humph. 121 ; Leitensdorfer v. Hempstead, 18 Mo. 269; Eagle Fire Co. 
 «. Lent, 6 Paige, 635.] 
 40 
 
CONTRACTS OP INFANTS. 39 
 
 not avoid it at all (a). It appears to be agreed that the sale, pur- 
 chase (6), or exchange (c) of land by an infant is both as to the 
 contract and as to the conveyance only voidable at his option. 
 
 Again, there is no doubt that an infant may be a partner or 
 shareholder (though in the latter case the company may refuse to 
 accept him) (d) ; and though he can not be made liable for partner- 
 ship debts during his infancy, he is bound by the partnership ac- 
 counts as between himself and his partners and can not *claim to [39 
 share profits without contributing to losses (e). And if on coming of 
 age he does not expressly disaffirm the partnership he is considered 
 to affirm it, or at any rate to hold himself out as a partner, and is 
 thereby liable for the debts of the firm contracted since his ma- 
 jority (/). 
 
 The liability of an infant shareholder who does not repudiate 
 his shares to pay calls on them rests, as far as existing authorities 
 go, on a somewhat different form of the same principle (of which 
 afterwards). As to contributions in the winding up of a company, 
 Mr. Justice Lindley (2. 1388) " is not aware of any case in which 
 an infant has been put on the list of contributories. Upon princi- 
 ple, however, there does not appear to be any reason why he 
 should not, if it be for his benefit; and this, if there are surplus 
 assets, might be the case." Otherwise he can not be deprived of his 
 right to repudiate the shares, unless perhaps by fraud ; but in any 
 case, if he " does not repudiate his shares, either while he is an in- 
 fant or within a reasonable time after he attains twenty-one, he 
 will be a contributory," and still more so if after that time he does 
 
 (a) Maddon v. White, 2 T. K. 159. 
 
 (b) Co. Lit. 2 b; Bac. Ab. Infancy I. 3 (4, 360) ; Dart V. & P. (5th ed.| 25. 
 
 (c) Co. Lit. 51 b. 
 
 (d) But the company can not dispute the validity of a transfer to an infant 
 after the infant has transferred over to a person sui juris. Gooch's ca. 8 Ch. 
 266. And see Lindley, 2. 1389. 
 
 (e) [In Moley v. Brine, 120 Mass* 324, the members of a partnership, one of 
 whom was an infant, contributed to the common stock in unequal proportions, 
 with an agreement that the profits should be equally divided between them. 
 The firm dissolved ; the assets remaining at the time of the dissolution being 
 insufficient to pay the claims of all the partners, it was held that the loss of 
 capital must fall upon the partners in equal proportions, and that the infant 
 <jould not throw upon his copartners the obligation of making up the de- 
 ficiency.] 
 
 ( /) Lindley, 1. 82-84 ; Goode v. Harrison, 5 B. & Aid. 147. 
 
 41 
 
40 CHAP. II. CAPACITY OF PARTIES. 
 
 -anything showing an election to keep the shares. On the whole,. 
 it is clear on the authorities (notwithstanding a few expressions to 
 the contrary), that both the transfer of shares' to an infant and the 
 obligations incident to his holding the shares are not void, but only 
 voidable (a). 
 
 Marriage is on a different footing from ordinary contracts (/>),. 
 and it is hardly needful to say in this place that the possibility of 
 a minor contracting a valid marriage has never been doubted in 
 any of our Courts. Even if either or both of the parties be under 
 the age of consent (fourteen for the man, twelve far the woman) 
 the marriage is not absolutely void, but remains. good if, when they 
 are both of the age of consent, they agree to it (c). But the Mar- 
 riage Act, 4 Geo. 4, c. 76 (ss. 8, 22), makes it very difficult, though 
 not impossible, for a minor to contract a valid marriage without 
 the consent of parents or guardians (d). 
 
 40] *As to promises to marry and marriage settlements, it has 
 long been familiar law that just as in the case of his other voidable 
 contracts an infant may sue for a breach of promise of marriage, 
 though not liable to be sued (e). An infant's marriage settlement 
 is not binding on the infant unless made under the statute (sea post, 
 p, 52), and the Court of Chancery has no power to make it binding 
 in the case of a ward (/). A settlement of a female infant's gen- 
 eral personal property, the intended husband being of full age and. 
 a party, can indeed be enforced, but as the contract-not of the wife- 
 
 (a) Lumsden's oa., 4 Ch. 31 ; Gooch's ca. 8 Ch. 266 ; Cp. p. 46, infra. 
 
 (b) Continental writers have wasted much ingenuity in debating with which, 
 class of contracts it should be reckoned. Sav. Syst., \ 141 (3. 317) ; Ortolan oit 
 Inst. 2. 10. 
 
 (c) Bacon Abr. 4. 336. 
 
 (d) In most continental countries the earliest age of legal marriage is fixed: 
 in France it is 18 for the man. 15 for the woman, and consent of parents or 
 lineal ancestors is required up to the ages of 25 and 21 respectively. (Code Civ. 
 144 sqq.) But this consent may be dispensed with in various ways by matter- 
 subsequent or lapse of time. See Art. 182,' 183, 185. The marriage law of 
 other states (except some where the canon law still prevails) appears to differ 
 little on the average from the law of Prance on this matter of age. 
 
 (e) Bacon, Abr. Infancy and Age, I. 4 (4. 370). Per Lord Ellenborough,. 
 Warwick v. Bruce, 2M.&S, 205; [Bush v. Wick, 31 O. S. 521 ; Hunt v. Peake,. 
 5 Cow. 475 ; Willard v. Stone, 7 Cow. 22 ; Cannon v. Alsbury, 1 A. K. Marsh. 
 76 ; Warwick v. Cooper, 5 Sneed, 659 ; Pool v. Pratt, 1 Chip. 252.] 
 
 (f) Field v. Moore, 7 D. M. G. 691, 710. 
 
 42 
 
CONTRACTS OF INFANTS. 41. 
 
 but of the husband ; the wife's personal property passing to him 
 by the marriage he is bound to deal with it according to his con- 
 tract (a). However, in any case the settlement is not void but 
 only voidable ; it may be confirmed by the subsequent conduct of" 
 the party when of full age and sui juris (6). Again an infant's- 
 contract on a bill of exchange or promissory note was once sup- 
 posed to be wholly void, but is now treated as only voidable (c). 
 The same holds of an account stated ; and here the decisive case- 
 is a strong authority in favor of the general contention that a con- 
 tract is not in any case absolutely void by reason of the party's- 
 infancy. The Court said : — 
 
 " The argument on behalf of the defendant was that an account stated 
 by an infant is not merely voidable but actually void, so that no subse- 
 quent ratification can make it of any avail. But we can see no sound or 
 reasonable distinction in this respect between the liability of an infant 
 on an account stated and his liability for goods sold and delivered, or on 
 any other contract . The general doctrine is that a party may, after 
 
 he attains the age of twenty-one years, ratify and so make himself liable 
 on contracts made during infancy. "We think that, on principle, unop- 
 posed by authority, this may be done on a contract arising on an account 
 stated as well as on any other contract" (d). 
 
 *Tbis may be claimed, we think, as a very strong modern judi- [41. 
 cial opinion, and so' far as we know it remains uncontradicted by 
 any equal authority of later date. Nor is the sanction of approved 
 text-writers wanting for the same view. Mr. Leake takes no notice 
 whatever of the current doctrine of the books; arid a learned 
 American writer says it has been declared in American Courts to 
 be " unsatisfactory, liable to many exceptions, and difficult of safe 
 . application," and himself takes it for the better opinion that con- 
 tracts made by infants are not in any ease on that account abso- 
 lutely void (e). It should be mentioned, however, that a more re- 
 cent author adheres to the old division of them into three classesas 
 binding, void and voidable, and cites a late judgment in Maine- 
 where it is very clearly expressed (/). It seems, therefore, that 
 
 (a) Davidson Conv. 3, (pt. 2), 728. {b) Davies v. Davies, 9 Eq. 468. 
 
 (c) Byles on Bills, 59 (10th ed.); undisputed in Harris v. Wall, 1 Ex.' 122. 
 
 (d) Williams v. Moor, 11 M. & W. 256, 264, 266; 12 L. J. Ex. 253. 
 
 (e) Parsons on Contracts (1st ed.,) 244, and see note lb. 
 
 (/) Hilliard'on Contracts, 2. li 9. The learned judge, however, allows only 
 contracts for necessaries to be binding, which on the English authorities is cer— 
 
 43 
 
42 CHAP. II. CAPACITY OF PARTIES. 
 
 there does not exist tbat consensus of American authority which on 
 . an unsettled question of pure common law might be of considera- 
 ble value to us if it existed. We have seen however that in several 
 important classes of cases (including some that were formerly sup- 
 posed exceptional) an infant's contract is certainly not void : and 
 we have also seen that there is not any clear authority for holding 
 that in any case it is in fact void. And it is perhaps not necessary 
 to seek or offer any further justification for refusing to admit an ill- 
 defined and inconvenient class of exceptions, of which no positive 
 instance can be found (a). 
 
 There is one exception to the rule that an infant may enforce his 
 voidable contracts against the other party during his infancy, or 
 rather there is one way in which he can not enforce them. Specific 
 performance is not allowed at the suit of an infant, because the 
 remedy is not mutual, the infant not being bound (6). 
 
 An infant may avoid his voidable contracts (with practically few or 
 42] no exceptions) either before or within a reasonable tlme*after 
 coming of age : the rule is that " matters in fait [i.e., not of record] 
 he shall avoid either within age or at full age," but matters of re- 
 cord only within age (Co. Lit. 380 b) (c). However, where the na- 
 
 tainly too narrow, and swells the class of void contracts by instances of acts 
 that are not properly contracts at all. Mr. W. W. Story (on Contracts, (j 101 
 sqq.) also adopts the threefold division. [The case referred to is Kobinson u. 
 Weeks, 56 Me. 102, and the statement that some contracts of an infant are 
 void was merely obiter dictum. The statement, however, that only contracts 
 for necessaries are binding, is believed correctly to declare the law of this 
 country. Tupper v. Caldwell, 12 Met. 559 ; Insurance Co. v. Noyes, 32 N. H. 
 345; and see next note.] 
 
 (a) [ " The numerous decisions which have been hadin this country justify the 
 settlement of the following definite rule, as one that is subject to no exceptions. 
 The only contract binding on an infant is the implied contract for necessaries ; 
 the only act which he is under a legal incapacity to perform is the appointment 
 of an attorney; all other acts and contracts, executed or executory, are voida- 
 ble or confirmable by him at his election." 1 Am. L. C. 300; Harner i>. Dipple, 
 
 •31 O. S. 72; Fetrous v. Wiseman, 40 Ind. 148; Cole v. Pennoyer, 14 111. 158; 
 Shropshire v. Burns, 46 Ala. 108; Hyer v. Hyatt, 3 Gr. C. C. 276; Mustard u. 
 Wohlford, 15 Gratt. 329; Bozeman v. Browning, 31 Ark. 364, 373; Skinner v. 
 Maxwell, 66 N. C. 45, 47.] 
 
 (b) Flight v. Bolland, 4 Russ. 298. 
 
 (c) See per Parke, B., Newry & Enniskillen Ey Co. v. Coombe, 3 Ex. 565 ; 
 ,18 L. J. Ex. 325; per Cur. L. & N. W. E. v. M'Michael, 5 Ex. 114; 20 L. J. 
 
 44 
 
CONTRACTS OF INFANTS. 42' 
 
 ture of the case admits of it, an infant's affirmation or repudiation 
 of his contract while he is still a minor is treated as only provisional ; 
 he can not deprive himself of the right to elect at full age, and only- 
 then can his election be conclusively determined (a). There is no 
 express authority for the saving words we have introduced into this 
 proposition, but they are obviously required ; in the case of an in- 
 fant shareholder, for instance, the unqualified application of it 
 might make it impossible for any body to deal with the shares until 
 he came of age. Indeed there is no lack of authority to show that 
 here as in other cases, so far as the interests of third persons are 
 concerned, and to some extent also as regards acts done by the par- 
 ties themselves on the faith of the contract, voidable means not in- 
 valid until ratified, but valid until rescinded (6). If an infant pays 
 a sum of money under a contract, in consideration of which the 
 contract is wholly or partly performed by the other party, he can 
 acquire no right to recover the money back by rescinding the con- 
 tract when he comes of age. Such is the case of a premium paid 
 for a lease (c), or of the price of goods (not being necessaries) sold 
 
 Ex. 97. As to an infant being bound when he comes of age by an acknowledg- 
 ment made in a Court of Eecord, see Y. B. 20 and 21 Ed. 1, in the series of 
 Chronicles and Memorials published under the direction of the Master of the 
 Bolls, p. 320. 
 
 (a) L. & N. W. E. u. M'Michael, supra; Slator v. Trimble, 14 Ir. C. L. 342. 
 [The rule in this country, generally, is that an infant can not avoid a sale 
 of land until his majority, but his contracts of a personal kind, or relating to 
 personal estate, he may avoid during infancy. See cases in note (c), below, and 
 1 Am. L. C. 317. In Edgerton v. Wolf, 6 Gray, 453, it was decided that an in- 
 fant having during his minority rescinded a contract of sale, this was final, and 
 precluded his afterward avoiding the rescission. But see Dunton v. Brown, 31 
 Mich. 182.] 
 
 (6) Per Lord'Colonsay, L. E. 2 H. L. 375. 
 
 (c) Holmes v. Blogg, 8 Taunt. 35, 508 ; S. C. Moore, 1. 466, 2. 552. [Money 
 paid by a minor under a contract which has not yet been performed by the 
 other party, may be recovered back. Shurtleff v. Millard, 12 E. I. 272; Eobin- 
 son u. Weeks, 56 Me. 102; Medbury v. Watrous, 7 Hill, 110. 
 
 An infant may avoid an express contract of hiring and service, and recover' 
 upon quantum meruit the value of the services he has rendered under it. Eay 
 v. Haines, 52 111. 485 ; Merediths. Crawford, 34 Ind. 399 ; Medbury v. Watrous, 
 7 Hill, 110; Van Pelt ii. Corwine, 6 Ind. 363 ; Vent v. Osgood, 19 Pick. 572; 
 Luplcin v. Mayall, 25 N. H. 82; Whitmarsh •«. Hall, 3 Denio, 375 ; Gaffney v. 
 Hayden, 110 Mass. 137; Lowe v. Sinklear, 27 Mo. 308; Hoxie v. Lincoln, 25- 
 Vt. 206; Derocher v. Continental Mills, 58 Me. 217. 
 
 45 
 
42 CHAP. II. CAPACITY OP PARTIES. 
 
 . and delivered to an infant and, paid for by him : and so if an infant 
 • enters into a partnership and pays a premium, he can not either be- 
 Some of the cases cited hold that the infant can recover only the value of his 
 services, less the damage suffered by his employer by reason of the breach of 
 his contract. But this makes the engagement of the infant a contract binding 
 on him, to the extent of holding him liable for a breach of it, leaving it voida- 
 ble prospectively only, and not ab initio, and seems clearly wrong on prin- 
 ciple. 
 
 An infant's agreement to labor, in consideration of being furnished board, 
 clothing, etc., may amount to a contract fur necessaries, and if it is reasonable, 
 and has been executed, will be binding. Stone v. Dennison, 13 Pick. 1 ; 
 Squires v. Hydliff, 9 Mich. 274; cp. Breed v. Judd, 1 Gray, 455; Spicer v. Earl, 
 Sup. Ct. Mich., 9 C. L. J.' 186. 
 
 Where a contract is executory on the part of the infant, and has been per- 
 formed on the part of the other party, if the infant avoids the contract, he 
 thereby divests himself of all right to what he may have received under it, if 
 then still possessed by him in specie, and the other party may repossess himself 
 thereof in whatever condition it may then be ; but if the infant have allowed it 
 to deteriorate, or wasted or consumed it, the other party has no remedy there- 
 for. Badger v. Phinney, 15 Mass. 359 ; Kitchen v. Lee, 11 Paige, 107 ; Pitts v. 
 Hall, 9 N. H. 441 ; Mustard v. "Wohlford, 15 Gratt. 329: Bedinger v. Wharton, 
 27 Gratt. 857. 
 
 In the case of an executed contract of sale or exchange, if the infant no 
 longer possesses the consideration received by him, having consumed or dis- 
 posed of it during infancy, he may avoid the contract without putting the other 
 party in statu quo. Chandler v. Simmons, 97 Mass. 508 ; Cresinger v. Welch, 
 
 15 Ohio, 156; Tucker v. Moreland, 10 Pet. 58, 73-74; Green v. Green, 69 N. Y. 
 553; Carpenter v. Carpenter, 45 Ind. 142; Dill v. Bo wen, 54 Ind. 204; Price v. 
 Furman, 27 Vt. 268; Wiser v. Lockwood, 42 Vt. 720. But see, on the other 
 hand: Bozeman v. Browning, 31 Ark. 364; Bailey ». Bamberger, 11 B. Mon. 
 113 ; Smith v. Evans, 5 Humph. 70; Stuart v. Baker, 17 Tex. 417. 
 
 If the infant, after reaching majority, sell, or for an unreasonable time, retain 
 what he has received under the contract, this will be treated as an affirmance, 
 and will preclude him from subsequently avoiding it. Henry v. Boot, 33 N. Y. 
 526,551; Boyden o. Boyden, 9 Met. 519; Boody v. McKenny, 23 Me. 517; 
 Pursley v. Hays, 17 la. 310; Williams i>. Mabee, 3 Halst. Ch. 500; Bobbins v. 
 Eaton, 10 N. H. 561 ; Robinson u. Hoskins, 14 Bush, 393. 
 
 Mere acquiescence for any length of time short of the statutory period of 
 
 limitations will not operate as an affirmance of an infant's sale of land, in the 
 
 ..absence of other circumstances sufficient to raise an equitable estoppel. Irvine 
 
 v. Irvine, 9 Wall. 617, 627 ; Prout v. Wiley, 28 Mich. 164; Cresinger v. Welch, 
 
 16 Ohio, 156 ; Wallack v. Latham, 52 Miss. 291, 297. 
 
 Where an infant purchases property, and, in pursuance of the contract, gives 
 a purchase-money mortgage upon it, he can not avoid the mortgage without 
 .also avoiding the purchase and restoring the property; and in such case, if the 
 46 ' 
 
infants' relief act. 43 
 
 fore or after his full age recover it back, nor therefore prove for it 
 in the bankruptcy of his partners (a). 
 
 We must now consider the effect of the Act of 1874 (37 & 38 Vict, 
 •c. 62), which enacts as follows : — 
 
 1. All contracts whether by specialty or by simple contract henceforth 
 -entered into by infants for the repayment of money lent or to *be [43 
 lent, or for goods supplied or to be supplied (other than contracts for nec- 
 essaries), 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. 
 
 2. 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 (4). 
 
 3. This Act may be cited as The Infants' Relief Act, 1874. 
 
 The 2d section supersedes the 5th section of Lord Tenterden's 
 Act (9 Geo. 4, c. 14) (c), by which no ratification of a contract 
 made during infancy could be sued upon unless in writing and 
 signed by the party to be charged. The new enactment forbids an 
 .action to be brought at all on any such promise or ratification, and 
 it applies to a ratification since the Act of a promise made in in- 
 fancy before the passing of the Act (d). It probably also prevents 
 the ratification from being available by way of set-off (e). This, 
 iiowever, is a different thing from depriving the ratification of all 
 effect. For it may have other effects than giving a right of action 
 or set-off, and these are not touched. While the matter was gov- 
 erned by Lord Tenterden's Act there were many cases where a 
 contract made during infancy might be adopted or confirmed with- 
 
 infant sells the mortgaged property, his purchaser takes it subject to the mort- 
 gage. Curtis v. McDougal, 26 O. S. 66 ; Oltman v. Moak, 3 Sandf. Ch. 431 ; 
 Cogley v. Cushman, 16 Minn. 397 ; Eoberts v. Wiggin, 1 N. H. 73; Knaggs v 
 Green, Sup. Ct. Wis., 19 A. L. Keg. (N. S.) 363.] 
 
 (a) Ex parte Taylor, 8 D. M. G. 254, 258. 
 
 (b) [Section 2 applies to a promise of marriage. Coxhead v. Mullis, 3 0. P. D. 
 439. Op. Northoote v. Doughty, 4 C. P. D. 385; Ditcham v. Worrall, 5 
 C. P. D. 410.] 
 
 (c) Since expressly repealed by the Statute Law Bevision Act, 1875, 38 and 
 39 Vict., c. 66. 
 
 (d) Ex parte Kibble, 10 Ch. 373. 
 
 (e) Kawley *. Kawley (C. A.), 1 Q. B. D. 460. 
 
 47 
 
44 CHAP. II. CAPACITY OF PARTIES. 
 
 out any ratification in writing so as to produce important results. 
 Thus in the case of a marriage settlement the married persons are- 
 bound not so much by liability to be sued (though in some cases 
 and for some purposes the husband's covenants are of importance) 
 as by inability to interfere with the disposition of the property once 
 made and the execution of the trusts once constituted : and so far 
 as concerns this an infant's marriage settlement may, as we have 
 seen, be sufficiently confirmed by his or her conduct after full age 
 (a). Again an infant partner who does not avoid the partnership 
 at his full age is, as between himself and his partners, completely 
 44] bound by tne terms on which he entered *it without any formal 
 ratification ; and a Court of Equity taking the partnership accounts 
 would, it is apprehended, apply the same rule to the time of his 
 minority as to the time after his fall age. Indeed there would be 
 no other rule to apply. Again an infant shareholder who does not 
 disclaim may after his full age, at any rate, be made liable for calls 
 without any express ratification ; on the contrary, the burden of 
 proof is on him to show that he repudiated the shares within a 
 reasonable time (b). 
 
 And as Lord Tenterden's Act did not formerly stand in the way 
 of these consequences of the affirmation or non-repudiation of an 
 infant 2 s contract, so the Act of 1874 will not stand in the way of 
 the same or like consequences in the future. In fact the operation 
 of the present Act seems to be to reduce all voidable contracts of 
 infants ratified at full age, whether the ratification be formal or not, 
 to the position of agreements of imperfect obligation, that is, which 
 can not be directly enforced but are valid for all other purposes. 
 Other examples of such agreements and of their legal effect will be- 
 found in the chapter specially assigned to that subject. 
 
 A collateral result of this enactment will be that one who has- 
 made a contract during his infancy will not now be able to obtain 
 specific performance of it after his full age, for the same reason that 
 he can not and formerly could not do so sooner (c). 
 
 The proviso about new consideration was presumably introduced 
 by way of abundant caution, to prevent colorable evasions of the 
 Act by the pretense of a new contract founded on a nominal or 
 trifling new consideration. "Where a substantial consideration ap- 
 
 (a) Davies v. Davies, 9 Eq. 468, supra, p. 40. 
 (6) See pp. 39, 46. 
 
 (c) Plight v. Bolland, 4 Russ. 298, p. 41, supra. 
 48 
 
infants' relief act. 45 
 
 pears on the face of the transaction these words can hardly he sup- 
 posed to impose on the Court the duty of inquiring whether the ap- 
 parent consideration is the whole of the real consideration. In the 
 first section the words concerning the purchase of goods are not 
 free from obscurity. If we might construe the Act as if it said 
 " for payment for goods supplied," etc., it would he clear enough : but 
 it is not so clear what is the ^precise operation of an enactment [45 
 that contracts "for goods supplied or to be supplied," other than 
 necessaries, shall he void. It seems to follow that no property will 
 pass to the infant by the attempted contract of sale, and that if he 
 pays the price or any part of it before delivery of the goods he 
 may recover it back ; as indeed he might have done before the Act, 
 for the contract was voidable, and ho was free to rescind it while it 
 was yet executory. But does it also follow that if the goods are 
 delivered no property passes, and that if they are paid for the 
 money may be recovered back? Such a consequence would be 
 most unreasonable, and is not required by the policy of the statute, 
 Which is obviously to protect infants from running into debt, and 
 to discourage tradesmen and others from giving credit to them, not 
 to deprive them of all discretion in making purchases for ready 
 money. It is certain that when a particular class of contracts is 
 simply declared to be unlawful, this does not prevent property from 
 passing by an act competent of itself to pass it, though done in pur- 
 suance or execution of the forbidden contract (a). In this case also 
 it seems clear that the delivery with intention to pass the property 
 would pass it apart from any question of contract, and such author- 
 ities as Holmes v. Blogg (6) and Ex parte Taylor (c), where the 
 contract was only voidable but was afterwards rescinded, would 
 still be applicable, so that if the goods had been accepted the 
 money could not be recovered. On this more reasonable construc- 
 tion, however, it is difficult to see what result is obtained by the 
 first section which is not equally well or better obtained by the 
 second. At common law the infant was not bound by any of the 
 contracts specified in the first section, unless he chose to bind him- 
 self at full age : by the second section he can not henceforth so bind 
 himself. No more complete protection can be imagined, and the 
 first section appears superfluous. Perhaps we may suppose that 
 
 (a) Ayers v. South Australian Banking Co., L. E., 3 P. C. 648, 559. 
 
 (b) 8 Taunt. 508. (e) 8 D. M. G. 254, p. 42, supra. 
 
 3 49 
 
46 CHAP. II. CAPACITY OP PARTIES. 
 
 the first section was meant to provide a popular exposition of the 
 chief practical effects of the following one. 
 
 It is conceived that a bond, bill of exchange, or note given by 
 a, man of full age, for which the consideration was in fact a loan of 
 46] monejr or the supply of goods not necessaries during *his in- 
 fancy, would not be void under s. 1 (a). But s. 2 would no doubt 
 •effectually prevent it from being enforced, though perhaps the 
 words are not the most apt for that purpose. 
 
 2. Of the liability of infants on obligations incident to interests 
 in permanent property. 
 
 In an old case reported under various names in various books 
 (b), of which a sufficient account is given in the judgment of the 
 Court of Exchequer in L. & N. W. Ey. Co. v. M'Michael (c) it was 
 ■decided that an infant lessee who continues to occupy till he comes 
 of full age is after his full age liable for arrears of rent incurred 
 during his infancy. In like manner a copyholder who was ad- 
 mitted during his minority and has not disclaimed is bound to pay 
 the fine (<2).' In recent times an important application of this prin- 
 ciple has been made in the case of infant shareholders in railway 
 companies. An infant is not incapable of being a shareholder, and 
 as such he is prima facie liable when he comes of age to be sued for 
 calls on his shares, and he can avoid the liability only by showing 
 that he repudiated the shares either before attaining his full age 
 (e), or in a reasonable time afterwards (f). In the first of the 
 series of cases on this head some of the judges seem to have thought 
 that even an infant shareholder was made absolutely liable by the 
 general form of the enactment in the Companies Clauses Consoli- 
 dation Act defining the liability of shareholders (^). This view 
 however has since been declared erroneous and inconsistent with 
 the established rule that general words in statutes are not to be 
 construed so as to deprive infants, lunatics, etc., of the protection 
 
 (a) .Cp. Flight v. Eeed, 1 H. & C. 703 ; 32 L. J. Ex. 265. 
 
 (6) Kettle v. Eliot, etc., Kolle, Ab. 1. 731, K.; Oro. Jao. 320; Brownlow, 120; 
 2 Bulst. 69. 
 
 (e) 5 Ex. 114; 20 L. J. Ex. 97. (d) Evelyn v. Chichester, 3 Burr. 1717. 
 
 («) Newry & Enniskillen By. Co. u. Coombe, 3 Ex. 565 : 18 L. J. Ex. 325. 
 
 (/) A plea which merely alleged repudiation after full age was therefore 
 held had in Dublin & Wicklow Ey. Co. v. Black, 8 Ex. 181. 
 
 (g) Lord Denman, C. J., and Patteson, J., in Cork & Bandon By. Co. v. 
 Cazenove, 10 Q. B. 935. 
 50 
 
INFANTS : BENEFICIAL CONTRACTS. 47 
 
 -given to them by the common law. In this case the liability, 
 though statutory, is still in the nature of contract, and is subject to 
 iihe ordinary rules as to the competency of contracting parties. 
 The true principle is that a railway shareholder is not a mere con- 
 tractor but a purchaser of an interest in a subject of a permanent na- 
 ture with certain ^obligations attached to it ; and those obliga- [47 
 tions he is bound to discharge, though they arose while he was a 
 minor, unless he has renounced the interest. A mere absence of rati- 
 fication is no sufficient defense, even if coupled with the allegation 
 that the defendant has derived no profit from the shares. For if the 
 property is unprofitable or burdensome, it is the holder's business 
 to disclaim it on attaining his full age, if not before : and it is by no 
 means clear that he could exonerate himself even during his min- 
 ority by showing that the interest was not at the time beneficial, 
 unless he actually disclaimed it. It is submitted that in such a case 
 the disclaimer if made would conclusively determine his interest 
 and not merely suspend it. Comparing the analagous case of a lease, 
 the Court said — '■' We think the more reasonable view of the case is 
 that the infant, even in the case of a lease which is disadvantageous 
 to him, can not protect himself if he has taken possession, and if he 
 has not disclaimed, at all events unless he still be a minor" (a). 
 In all the decided cases the party appears to have been of full age 
 at the time of the action being brought, but there is nothing to show 
 that (except possibly in the case of a disadvantageous contract) he 
 might not as well be sued during his minority. 
 
 It may perhaps be doubted whether the reason on which these 
 authorities are grounded would apply to the case of shares in a 
 company not having any permanent property ; but it seems toler- 
 ably plain that if necessary the general principles of the law of 
 partnership would, and that the same results would follow, except 
 it may be as to suing the shareholder while still a minor. 
 
 3. Of the liability of an infant when the contract is for his bene- 
 fit, and especially for necessaries. 
 
 It has been laid down in general terms that if an agreement be 
 for the benefit of an infant at the time, it shall bind him (b). We 
 are not aware, however, that this rule has been applied in practice, 
 except in the case of obligations coupled with interests in property 
 .(where it is not clear, as above said, that the question of benefit is 
 
 (a) L. & N." W. Ky. Co. v. M'Michael, 5 Ex. 114; 20 L. J. Ex. 97, 101. 
 
 (6) Bacon Ab. Infancy, I. 3, 4. 360; Maddon ». White, 2 T. K. 159 [cp.. 
 
 supra, p. 41, nil. (/) and (o)]. 
 
 51 
 
48 CHAP. II. CAPACITY OF PARTIES. 
 
 material), and except so far as an infant's liability for necessaries- 
 48] is founded on this reason. In one recent *ease the rule was ex- 
 pressed more widely in the converse form, that the contract is bind- 
 ing unless manifestly to the infant's prejudice (ji). But this, it is 
 submitted, goes too far. The contract before the Court was that or 
 an apprentice with a master; and this and other cases (b~) certainly 
 show that such a contract, or an ordinary contract to work for 
 wages, will, if it be reasonable, be considered binding on the infant 
 to this extent, that he may no less than an adult incur the statutory 
 penalties for unlawfully absenting himself from his master's em- 
 ployment. But it is distinctly laid down that an apprentice under 
 age can not be sued on the covenants made by him in the inden- 
 ture of apprenticeship except by the custom of London (c). Again 
 there are many conceivable cases in which it might be for an in- 
 fant's benefit, or at least not manifestly to his prejudice, to enter- 
 into trading contracts, or to buy goods other than necessaries : one 
 can hardly say for example that it Would be manifestly to the dis- 
 advantage of a minor of years of discretion to buy goods on credit 
 for re-sale in a rising market; yet there is no doubt whatever that* 
 such a contract would at common law be voidable at his option. 
 Nor has it ever been suggested that an infant partner or share- 
 holder is at liberty to disclaim at full age only in case the adven- 
 ture has been unprofitable or is obviously likely to become so. 
 However, inasmuch as since the Infants' Eelief Act, 1874, an in- 
 fant's contract, if not valid and binding on him from the first, can 
 never be enforced against him at all, it seems quite possible that 
 the Courts may in future be disposed to extend rather than to nar- 
 row the description of contracts which are considered binding be- 
 cause for the infant's benefit. 
 
 3a. "We pass now to the special question of contracts for neces-- 
 saries. 
 
 The most recent and important authority on this subject is the 
 judgment of the Exchequer Chamber in Eyder v. "Wombwell (dy 
 from which the following introductory statement is taken : — ■ 
 
 (a) Cooper v. Simmons, 7 H. & N. 707, 721, per "Wilde, B. Not so strongly- 
 put in the L. J. report, 31 L. J. M. C. 138, 144. 
 
 (A) "Wood v Fenwick, 10 M. & "W. 195 ; [Leslie v. Fitzpatricft, 3 Q. B. D. 229.J 
 
 (c) Bacon Ab. Infancy A. 4. 340. 
 
 (d) L. B., 4 Ex. 32, 38; in the Court below L. E., 3 Ex. 90. On the subject 
 generally, cp. Benjamin on Sale, 18-22 [2d Am. ed. 21-28]'. " 
 
 52 
 
INFANTS : NECESSARIES. 49, 50 
 
 " The general rule of law is clearly established, and is that an infant is 
 ^generally incapable of binding himself by a contract. To *this rule [49 
 there is an exception introduced, not for the benefit of the tradesman who 
 may trust the infant, but for that of the infant himself. This exception is 
 that he may make a contract for necessaries. And as is accurately stated 
 "by Parke, B., in Peters v. Fleming (a) ' From the earliest time down to the 
 present the word necessaries is not confined in its strict sense to such ar- 
 ticles as were necessary to the support of life, but extended to articles fit 
 to maintain the particular person in the state, degree and station in life 
 in which he is ; and therefore we must not take the word necessaries in 
 its unqualified sense, but with the qualification above pointed out.' " 
 
 "What in any particular case may fairly be called necessary in 
 this extended sense, is what is called a question of mixed fact and 
 .law. The provinces of the Court and the jury respectively, as 
 defined by the Exchequer Chamber, seem to be as we now proceed 
 to state. 
 
 The station and circumstances of the defendant and the par- 
 ticulars of the claim being first ascertained, it is then for the Court 
 ■to say whether the things supplied are prima facie necessaries, i.e., 
 are such as a jury may reasonably find to be necessaries for a per- 
 son in the defendant's circumstances, or ''whether the case is such 
 .as to cast on the plaintiff the onus of proving that the articles are 
 within the exception [i.e., are necessaries], and then whether there 
 is any sufficient evidence to satisfy that onus," to show, that is, 
 that although the articles would generally not be necessary for a 
 person in the defendant's position, yet there exist in the case before 
 the Court special circumstances such as to make them necessary. 
 Thus articles of diet which are prima facie mere luxuries may be- 
 come necessaries if prescribed by medical advice (6). It is said 
 that in general the test of necessity is usefulness, and that nothing 
 can be a necessary which can not possibly be useful. It is obvious, 
 however, that it is in truth a question of common sense and ex- 
 perience what is or is not reasonably required by a person in a 
 ^given station and circumstances, and one on which not much light 
 can be thrown by the statement in a general form of rules founded 
 on extreme cases. It is to be borne in mind (as was remarked in 
 the Exchequer Chamber) that the question is not whether the 
 things are such that a person of the defendant's means may reason- 
 ably *buy and pay for them, but whether they can be reason- [50 
 
 (a) 6 M. & W. at p. 46. 
 .(b) See Wharton v. Mackenzie, 5 Q. B. 606 ; 13 L. J., Q. B. 130. 
 
 53 
 
50 CHAP. II. CAPACITY OF PARTIES. 
 
 ably said to be so necessary for him that, though an infant, he must- 
 obtain them on credit rather than go without. For the purpose of 
 deciding this question the Court will take judicial notice of tbe- 
 ordinary customs and usages of society (a.) 
 
 If, on these preliminary considerations, the Court decides that 
 there is evidence on which the supplies in question may reasonably 
 be treated as necessaries, then it is for the jury to say whether 
 they were in fact necessaries for the defendant under all the cir- 
 cumstances of the case (b). 
 
 As a matter of common sense it seems very relevant to this- 
 question whether the defendant was or was not already sufficiently 
 provided with commodities of the particular description (especially 
 when we bear in mind that this exceptional liability for necessaries 
 is admitted in the interest not of the seller but of the infant buyer) ; 
 but it seems still an open question whether evidence that he was so- 
 provided is admissible, at any rate without showing that the plaint- 
 iff knew it or had reason to presume it. (L. E., 4 Ex., at pp. 36, 
 42.) The case most directly in point (c) seems to lay down in 
 effect that the question whether goods supplied are necessaries is a 
 question of fact, depending (among other conditions) on the extent 
 to which the party is already supplied with similar goods ; that if 
 they are necessary the tradesman will not be the less entitled to re- 
 ' cover because he made no inquiries as to the infant's existing sup- 
 plies; but that on the other hand, if the infant is already so well 
 supplied that these goods are in truth not necessary, the trademan's 
 ignoranee of that fact will not make them necessary, and he can 
 not recover; that, indeed, there is no rule of law casting on him a 
 positive duty to make inquiries, but that he omits to do so at his 
 peril (d). 
 
 (a) L. R., 4 Ex. at p. 40. 
 
 (b) [MeKanna v. Merry, 61' 111. 177; Merriam v. Cunningham, 11 Cush. 40; 
 Beeler v. Young, 1 Bibb, 519 ; Tupper v. Caldwell, 12 Met. 559, 563.] It would 
 seem from Ryder v. Wombwell (supra), that the power of the Court to control 
 or review the finding of the jury is neither more nor less in this than in any- 
 other class of cases. 
 
 (c) Brayshaw v. Eaton, 7 Scott, 183. 
 
 (d) [If the infant is already supplied, he can not bind himself even for arti- 
 cles of a necessary kind. Parsons v. Keys, 43 Tex v 557 ; Perrin v. Wilson, 10- 
 Mo. 451; Jones v. Colvin, 1 Mc-Mull. L. 14; Elrodu. Meyers, 2 Head, 33 ; Era- 
 ker v. Byrum, 13 Rich. L. 163 ; Davis v. Caldwell, 12 Cush. 512. 
 
 Ignorance on the part of the seller that the infant was already partially or- 
 54 
 
INFANTS : NECESSARIES. 51 
 
 It seems, however, that the defendant having an income out of 
 ■which he might keep himself supplied with necessaries for ready- 
 money is not equivalent to his being actually supplied *and [51 
 does not prevent him from contracting for necessaries on credit (a). 
 
 It would be probably natural for juries, if not warned against 
 it, to fall into a way of testing the necessary character of supplies, 
 not so much by what the means and position of the buyer actually 
 were, as by what they appeared to be to the seller, and such a view 
 is not altogether without countenance from authority (6). It is 
 conceived, however, that this is quite erroneous, and that in truth 
 the knowledge or belief of the tradesman, as to the infant's circunv 
 stances and income certainly, and as to the extent to which he is- 
 furnished with goods of the same kind probably, has nothing to do 
 with the question whether the goods are necessary or not. It may 
 be said that the question for the Court will, as a rule, be whether 
 articles of the general class or description were prima facie neces- 
 saries for the defendant, and the question for the jury will be 
 whether, being of a general class or description allowed by the 
 Court as necessary, the particular items were of a kind and quality 
 necessary for the defendant, having regard to his station and cir- 
 cumstances. For instance, it would be for the Court to say whether 
 it was proper for the defendant to buy a watch on credit, and for 
 the jury to say whether the particular watch was such a one as he , 
 could reasonably afford. But this will not hold in extreme cases. 
 In Eyder v. Wombwell, the Court of Exchequer Chamber held, 
 reversing the judgment of the majority below on this point, 
 that because a young man must fasten his wristbands somehow it 
 does not follow that a jury are at liberty to find a pair of jew- 
 eled solitaires at the price of 25Z. to be necessaries even for a 
 young man of good fortune. There is a point of costliness and 
 
 ■wholly supplied makes no difference ; he contracts with the infant at his peril. 
 Nichols v. Stager, 2 Tenn. Ch. 328; Kline v. L'Amoureux, 2 Paige, 419. 
 
 Where one sells an infant articles, necessaries in kind, but in inordinate- 
 quantity, a recovery can be had for the value of such quantity only as was ac- 
 tually necessary. Johnson v. Lines, 6 W. & S. 80.] 
 
 (a) Burghart v. Hall, 4 M. & W. 727; contra Mortara v. Hall, 6 Sim. 495; 
 [and see Nicholson v. Wilborn, 13 Ga. 467; Rivers v. Gregg, 5 Rich. Eq. 274]. 
 The doctrine laid down in Mortara v. Hall, seems superfluous, for the supplies 
 there claimed for (such as 209 pair of gloves in half a year) could not have 
 been reasonably found necessary in any case. 
 
 (6) In Dalton v. Gib, 7 Scott, 117, much weight is given to the apparent rank 
 and circumstances of the party. 
 
 55 
 
52 CHAP. II. CAPACITY OP PARTIES. 
 
 luxury — not of course to be verbally defined — beyond which an 
 {article-, though belonging to a useful and even necessary class, and 
 capable of real use, can not be called necessary. 
 52] *The general result appears to stand thus : — 
 
 When it is sought to enforce a contract against an infant on the 
 ground that it was for necessaries, then the prima facie necessity 
 of the commodities supplied is a question for the Court. 
 
 If the Court holds them not prima facie necessaiy, evidence may 
 be given of special circumstances rendering them in fact necessary, 
 and the sufficiency or otherwise of such evidence is a question for 
 the Court. 
 
 Subject as above, the necessity of the commodities in fact is a 
 question for the jury. 
 
 Commodities of a description in itself necessary are [probably] 
 not necessaries when the buyer is already supplied with as much 
 of the like commodities as he can reasonably want. 
 
 Hitherto we have spoken of a tradesman supplying goods, this 
 being by far the most common case. But the range of possibile 
 contracts for " necessaries " is a much wider one. " It is clearly 
 agreed by all the books that speak of this matter that an infant 
 may bind himself to pay for his necessary meat, drink, apparel, 
 physic [including, of course, fees for medical attendance, etc., as 
 well as the mere price of medicines], and such other necessaries •■; 
 and likewise for his good teaching and instruction, whereby he 
 may profit himself afterwards" (a). Thus learning a trade may 
 be a necessary, and on that principle an infant's indenture of ap- 
 prenticeship has been said to be binding on him (b). The prepara- 
 tion of a settlement containing proper provisions for her benefit 
 has been held a necessary for which a minor about to be married 
 may make a valid contract, apart from any question as to the va- 
 lidity of the settlement itself (c). 
 
 A more remarkable extension of the definition of necessaries is 
 to be found in the case of Chappie v. Cooper (d), where an infant 
 
 (a) Baa Abr. Infancy and Age, I. (4. 335). And see Chappell v. Cooper, 13 
 M. & W. 252 ; 13 L. J. Ex. 286. 
 
 (b) Cooper v. Simmons, 7H.&N. 707 ; 31 L. «J7 M. C. 138, per Martin, B. 
 See, however, p. 48, supra. 
 
 (c) Helps v. Clayton, 17 C. B. N. S. 553 ; 34 L. J. C. P. 1, see the pleadings, 
 and the judgment of the Court ad fin. 
 
 .(d) 13 M. & W. 252 ; 13 H J. Ex. 286. 
 56 
 
CUSTOMARY AND STATUTORY CONTRACTS OF INFANTS. 53 
 
 "widow was sued for her husband's funeral expenses. The Court 
 held that decent burial maybe considered a necessary *for every [53 
 man, and husband and wife being in law the same person, the de- 
 cent burial of a deceased husband is therefore a necessary for his 
 widow. The conclusion, though arrived at by a circuitous and 
 highly artificial course of reasoning, seems in itself satisfactory on 
 a broader ground, which however the Court did not adopt. A con- 
 tract entered into for the purpose of performing an imperative 
 moral and social, if not legal duty, which it would have been scan- 
 dalous to omit, may well be considered of as necessary a character 
 as any contract for personal service or purchase of goods for per- 
 -sonal use. 
 
 We refrain from any further enumeration of the various things 
 which have been decided to be necessary or not necessary, for two 
 reasons : that the question, though to a great extent a question for 
 "the Court, is one of judicial common sense in each particular case, 
 for which precedents can supply no absolute authority but only 
 more or less instructive analogies, and that to undertake such an 
 -enumeration would be to usurp the office of a Digest (a). 
 
 The supply of necessaries to an infant creates only a liability on 
 -simple contract, and it can not be made the ground of any different 
 kind of liability (b). Coke says, "If he bind himself in an obli- 
 gation or other writing with a penalty for the payment of any of 
 these, that obligation shall not bind bim " (c). A fortiori, a deed 
 given by an infant to secure the payment of money advanced to 
 buj T necessaries is voidable (d). Such is also the common law with 
 regard to negotiable instruments (e). But it is said that a bill or 
 note given by an infant to a creditor for necessaries may be valid 
 if it is not payable to order or negotiable (/). 
 
 (a) See the cases collected, JFisher's Dig. 4632-5. 
 
 (b) At common law a loan of money could not be deemed equivalent to nec- 
 essaries, though actually spent on necessaries. Bac. Abr. 4. 356. 
 
 (c) Co. Lit. 172 a, cp. 4 T. R. 363. (d) Martin v. Gale, 4 Ch. D. 428. 
 (e) Leake, 234 [2d ed., 551] ; and so of accounts stated, but these are now 
 
 absolutely void, as well as loans of money to infants. Supra, p. 42. 
 
 (/) Anon. MS. Fisher's Dig. 4626. Cp. Eolle Ab. 1. 729, pi. 7. [The obli- 
 gation of the infant for necessaries furnished seems rather to be quasi 
 ex contractu than a real contract. He can make no binding executory con- 
 tract to purchase necessaries. Where necessaries have been furnished him, 
 the law creates an obligation to pay for them, though the infant may have been 
 -too young to understand the nature of a contract. Hyman v. Rain, 3 Jones L. 
 
 57 
 
54 CHAP. II. CAPACITY OF PASTIES. 
 
 There are some particular contracts of infants valid by custom. 
 By custom incident to the tenure of gavelkind an infant may self 
 his land of that tenure at the age of fifteen, but the conveyance 
 547] *must be by feoffment, and is subject to other restrictions («). 
 This, however, is not a full capacity of contracting, for there is no 
 reason to suppose that an action could be brought against the infimt 
 for a breach of the contract for sale, or specific performance of it 
 enforced. 
 
 "Also by the custom of London an infant unmarried and above 
 the age of fourteen^ though under twenty-one, may bind himself 
 apprentice to a freeman of London by indenture with proper cov- 
 enants; which covenants by the custom of London shall be as 
 binding as if he were of full age," and may be sued upon in the 
 superior eourts as well as in the city courts (b). 
 
 Infants, or their guardians in their names, are empowered by 
 Statute (11 Geo. 4 & 1 Wm. 4, c. 65, ss. 16, 17) to grant renewals 
 of leases, and make leases under the direction of the Court of 
 Chancery, and in like manner to surrender leases and accept new 
 leases (s. 12). (The provisions as to renewals of leases extend also 
 to married woman) (c). And by a later Act (18 & 19 Yict. c. 43), 
 infants may with the sanction of the Court make valid marriage- 
 settlements of both real and personal property (d). 
 
 111. And where an express promise is made, the price stipulated is not bind- 
 ing, but the seller recovers only the reasonable value of the articles furnished. 
 Parsonsj>. Keys, 43 Tex. 557; Hyer v. Hyatt, 3 Cr. C. C. 276; Locke v. Smith, 
 41 N. H. 346 ; Earle v. Reed, 10 Met. 387 ; Beeler v. Young, 1 Bibb, 519. 
 
 Though not liable at law for money loaned him with which to purchase nec- 
 essaries, an infant is liable for money paid at his request to a third person, for 
 necessaries furnished. Randall v. Sweet, 1 Denio, 460; Swift o. Bennett, 10 
 Cush. 436; Haines' Adm'r. v. Tarrant, 2 Hill (S. 0.) 400; Conn v. Coburn, 7 
 N. H. 368. 
 
 Where one lends money to an infant with which to purchase necessaries, and 1 
 the money is so applied, the lender may recover in equity. Price u. Sanders,. 
 60 Ind. 310; Beeler v. Young, 1 Bibb, 519; Watson v. Cross, 2 Duv. 147, 149.] 
 
 (a) Bacon Ab. Gavelkind, A., 4. 49 ; Dav. Conv. 2. pt. 1. 221 (3d ed.) ; Dart. 
 V. & P. ad inti. 
 
 (b) Bacon Ab. Infancy, B., 4. 340. 
 
 (c) See Dan. Ch. Pr. 2. 1917 ; Re Clark, 1 Ch. 292 ; Re Letchford, 2 Ch. D. 
 719. 
 
 (d) See the Act and notes in Morgan. Ch. Acta and Orders, and Dan. Ch.. 
 Pr. 2. 1211. 
 
 58 
 
LIABILITY OF INFANTS APART FROM CONTRACT. 55- 
 
 4. Of aninf ant's immunity as to wrongs connected with contract. 
 
 An infant is generally no less liable than an adult for wrongs 
 committed by him, subject only to his being in fact of such age 
 and discretion that he can have a wrongful intention, where such 
 intention is material; but he can not be sued for a wrong, when 
 the cause of action is in substance ex contractu, or is so directly con- 
 nected with the contract that the action would be an indirect way 
 of enforcing the contract — which, as in the analogous case of mar- 
 ried woman (a), the law does not allow(i). Thus it was long ago 
 held that an infant innkeeper could not be made liable in an action 
 on the case for the loss of his guest's goods ( c). There is another 
 old case reported in divers books (d) *(the clearest of the reports [55 
 is transcribed with immaterial omissions in a judgment of Knight 
 Bruce, Y.-C.) (e), where' it was decided that an action of deceit 
 will not lie upon an assertion by a minor that he is of full age (/). It 
 was said that if such actions were allowed all the infants in England 
 would be ruined, for though not bound by their contracts, they 
 would be made liable as for tort; and it appears in Keble's report 
 that an infant had already been held not liable for representing a 
 false jewel not belonging to him as a diamond and his own. The 
 rule is decidedly laid down in Jennings v. Eundall (g~), where it 
 was sought to recover damages from an infant for overriding a 
 
 (a) See p. 58, infra. 
 
 (b) [Gibson v. Spear, 38 Vt. 311 ; Morrill v. Aden, 19 Vt. 505 ; West v~ 
 Morse, 14 Vt. 447 ; Prescott v. Norris, 32 1ST. H. 101 ; Vasse v. Smith, 6 Cr. 226.]: 
 
 (c) Rolle Ab. 1. 2, Action sur. Case, D. 3. 
 
 (d) Johnson v. Pie, Sid. 258; 1 Lev. 169; 1 Keb. 913. 
 
 (e) Stikeman v. Dawson, 1 De G. & Sm. 113 ; and see other cases collected at 
 p. 110, where "the case mentioned in Keble" is that which, as stated in the 
 text, occurs in his report of Johnson v. Pie. 
 
 (J) [Ace. Brown v. McCune, 5 Sandf. 224; contra, Fitts v. Hall, 9 N. H. 441. 
 Nor will the representation estop the infant; Whitcomb v. Joslyn, 51 Vt. 79 ; 
 Merriam v. Cunningham, 11 Cush. 40; Carpenters. Carpenter, 45 Ind. 142 ; 
 Burley v. Russell, 10 N. H. 184.] 
 
 (g) 8 T. R. 335. It s also recognized in Price v. Hewett, 8 Ex. 146 (not a 
 decision on the point) ; [It has been much discussed whether an infant who 
 hires » horse to go to a place agreed upon, but drives it to another and 
 further place to its injury, is liable; that he is, see Homer v. Thwing, 3 Pick.- 
 492 ; Towns v. Wiley, 33 Vt. 355 ; Ray v. Tubbs, 50 Vt. 688. Cp. Campbell v.. 
 Stakes, 2 Wend. 137 ; Eaton v. Hill, 50 N. H. 235. Contra, see Wilt v. Welsh,, 
 6 Watts, 9; Penrose v. Curren, 3 Rawle, 351. And see' Schenks v. Strong, 1- 
 South. 87.] 
 
 59 
 
-56 CHAP. II. CAPACITY OF PARTIES. 
 
 hired mare. But if an infant's wrongful act, though concerned 
 with the subject-matter of a contract, and such that but for the 
 ■ contract there would have been no opportunity of committing it, 
 is nevertheless independent of the contract in the sense of not 
 being an act of the kind contemplated by it, or being an act ex- 
 pressly forbidden by it, then the infant is liable. The distinction 
 is established and well marked by a modern case in the Common 
 Pleas, where an infant had hired a horse for riding, but not for 
 jumping, the plaintiff refusing to let it for that purpose; the de- 
 fendant allowed his companion to use the horse for jumping, 
 whereby it was injured and ultimately died. It was held that 
 using the horse in this manner, being a manner positively forbidden 
 by the contract, was a mere trespass and independent tort, for 
 which the defendant was therefore liable (a). 
 
 It is doubtful whether an infant can be made liable quasi ex con- 
 tractu (as for money received), when the real cause of action is a 
 wrong independent of contract; but since the Judicature Acts have 
 abolished the old forms of action, the question seems of little im- 
 portance (b). 
 56] *5. Liability in equity on representation of full age. 
 
 When an infant has induced persons to deal with him by falsely 
 representing himself as of full age, he incurs an obligation in equity, 
 which however in the case of a contract is not an obligation to per- 
 form the contract, and must be carefully distinguished from it (c). 
 
 (a) Burnard v. Haggis, 14 G. B. N. S. 45 ; 32 L. J. C. P. 189. [Vasse *. 
 .Smith, 6 Cr. 226; Eatori v. Hill, 50 H. H. 235; Campbell v. Stakes, 2 Wend. 
 137 ; Lewis v. Littlefield, 15 Me. 233 ; 17 Me. 40. 
 
 An infant has been held chargeable by action for a tort in obtaining goods 
 fraudulently, with an intention not to pay for them. Wallace v. Morss, 5 Hill, 
 
 - 391 ; Matthews v. Cowen, 59 111, 341. And see Walker v. Davis, 1 Gray, 506.] 
 
 (6) The liability is affirmed in Chitty on Contracts (p. 148, 9th ed.) [p. 207, 
 11th Am. ed.], and by Mr. Leake (p. 226) [2d ed. p. 545; ace. Elwell v. Mar- 
 tin, 32 Vt. 217 ; Shaw v. Coffin, 58 Me. 254], and disputed by Mr. Dicey (on 
 Parties, 284), who is supported by a dictum of Willes, J., assuming that in- 
 fancy would be a good plea to an action for money received, though substan- 
 tially founded on a wrong. Alton v. Midland Ey. Co., 19 C. B. N. S. at p. 
 241 ; 34 L. J. C. P. at p. 297. 
 
 (c) Ace. Bartlett v. Wells, 1 B. & S. 836; 31 L. J. Q. B. 57. Declaration for goods 
 
 - sold, etc. Plea, infancy. Equitable replication, that the contract was induced by 
 .defendant's fraudulent representation that he was of age. The replication was 
 
 60 
 
INFANTS : REPRESENTATIONS OF FULL AGE. 57" 
 
 Indeed it is not a contractual obligation at all. It is limited to the 
 extent we have stated above (p. 35), and the principal on which it 
 is founded is often expressed in the form: "An infant shall not take- 
 advantage of his own fraud." A review of the principal cases will 
 clearly show the correct doctrine. In Clarke v. Cobley (a) the de- 
 fendant being a minor had given his bond to the plaintiff for the 
 amount of two promissory notes made by the defendant's wife be- 
 fore the marriage, which notes the plaintiff delivered up. (It must 
 be taken, though it is not clear by the report, that the defendant- 
 falsely represented himself as of full age.) The plaintiff on dis- 
 covering the truth, and after the defendant came of age, filed his 
 bill praying that the defendant might either execute a new bond, 
 pay the money, or deliver back the notes. The Court ordered the' 
 defendant to give back the notes, and that he should not plead to 
 any action brought on them the Statute of Limitation or any other- 
 plea which he could not have pleaded when the bond was given ; 
 but refused to decree payment of the money, holding that it could 
 do no more than take care that the parties were restored to the 
 same situation in which they were at the date of the bond. Cory 
 v. G-ertcken ('&) shows that when an infant by falsely representing 
 himself to be of full age has induced trustees to pay over a fund to 
 him, neither he nor his representatives can afterwards charge the 
 trustees with a breach of trust and make them pay again. Overton 
 v. Banister (c) confirms this: it was there held however that the 
 release of an infant cestui que trust in such a case is binding on him 
 only to the extent of the sum actually received by him. The later- 
 case of Wright v. Snowe (d) seems not to agree with this, though 
 Overton v. Banister was cited, and Apparently no dissent ex- [57 
 pressed. There a legatee had given a release to the executrix, 
 
 held bad, as not meeting the defense, but only showing a distinct equitable right 
 collateral to the cause of action sued upon. [In Lempriere a. Lange, 12 Oh. 
 D. 675, a lease obtained by an infant on a representation that he was of fulL 
 age, was canceled and possession ordered to be given up, but the infant was 
 held not liable for use and occupation. In Schmitheimer v. Eiseman, 7 
 Bush 298, it was held that "a deed made by an infant feme covert can not be 
 avoided by her on the ground of her infancy, when, to induce an innocent pur- 
 chaser to make the purchase, she and her husband made oath before a notary 
 that to the best of their knowledge and information she was then more than.* 
 ifcwenty-one years of age."] 
 
 (a) 2 Cox, 173. (S) 2 Madd. 40. 
 
 (c) 3 Ha. 503. (d) 2 De G. & Sm. 321. 
 
 61 
 
.58 CHAP. II. CAPACITY OP PARTIES. 
 
 representing himself to her solicitor as of full age; afterwards he 
 ..sued for an account, alleging that he was an infant at the date of 
 the release. The infancy was not sufficiently proved, and the 
 Court would not direct an inquiry, considering that in any event 
 the release could not be disturbed. This appears to go the length 
 of holding the doctrine of estoppel applicable to the class of repre- 
 sentations in question, and if that be the effect of the decision its 
 correctness may perhaps be doubted. In Stikeman v. Dawson (a) 
 the subject of infant's liability for wrongs in general is discussed in 
 an interesting judgment by Knight Bruce,. V.-C, and the important 
 point is decided that in order to establish this equitable liability it 
 must be shown that the infant actually represented himself to be 
 of full age; it is not enough that the other party did not know of 
 his minority. And as there must bean actual false representation, 
 so it has been more lately held that no claim for restitution can be 
 -sustained unless the representation actually misled the person to 
 whom it was made. No. relief ,can be given if the party was not 
 in fact deceived, but knew the truth at the time; and it makes no 
 ■difference where the business was actually conducted by a solicitor 
 or agent who did not know (b). 
 
 If a minor has held himself out as an adult, and so traded and 
 been made bankrupt, he can not have the bankruptcy annulled on 
 the ground of his infancy (c), nor can he oppose the adjudication 
 on that ground (d). And it has been decided with some reluctance 
 by the Court of Appeal that a loan obtained by a minor on the 
 faith of his representation that he is of full age is a debt provable 
 in bankruptcy (e). This is not inconsistent with the principle that 
 the obligation is not ex contractu ; for under the existing law at any 
 rate there is no rule to confine proof in bankruptcy to claims aris- 
 ing out of contract (/). 
 
 A transaction of this kind can not stand in the way of a subse- 
 58] quent valid contract, with another person made by the *infant 
 after he has come of age ; and the person who first dealt with him on 
 
 (a) 2 De G. & Sm. 90. 
 
 (6) Nelson v. Stocker, 4 De G. & J. 458. 
 
 (c) Ex parte Watson, 16 Ves. 265; Ex parte Bates, 2 Mont. D. & D. 337. 
 
 (d) Ex parte Lynch, 2 Ch. D. 227. The Infants' Relief Act, 1874, does not 
 affect this class of cases : lb. 
 
 (e) Ex parte Unity Bank, 3 De G. & J. 63. 
 
 (/) Bankruptcy Act, 1869, s. 31 ; Ex parte Peacock, 6 Ch. 682, 
 62 
 
MARRIED WOMEN. 59 
 
 the strength of his representing himself as of age acquires no right 
 to interfere with the performance of such subsequent contract (a). 
 This is another proof that the infant's false representation gives no 
 additional force to the transaction as a contract. 
 
 It was also held in the case referred to that, assuming the first 
 agreement to have been only voidable, it was clearly avoided by the 
 act of the party in making another contract inconsistent with it after 
 attaining his full age. But it has been decided in Ireland (as wo 
 have seen) that this is not so in the case of a lease granted by an 
 infant; the making of another lease of the same property to an- 
 other lessee after the lessor has attained full age is not enough to 
 avoid the first lease (b). The fact that an interest in property and 
 a right of possession had passed by the first lease, though voidable, 
 seems a sufficient ground for the distinction. 
 
 II. Married "Women. 
 
 A married woman is incapable of binding herself by a con- 
 tract (c). » 
 
 If she attempts to do so " it is altogether void, and no action will 
 lie against her husband or herself for the breach of it " (d). And 
 the same consequence follows as in the case of infants, viz., that 
 although a married woman is answerable for wrongs committed by 
 her during the coverture, including frauds, and may be sued for 
 them jointly with her husband, orsepartely a if she survives him, 
 yet she can not be sued for a fraud where it is directly connected 
 with a contract with her, and is the means of effecting it and par- 
 cel of the same transaction, e.g., where the wife has obtained ad- 
 vances from the plaintiff for a third party by means of her guar- 
 anty, falsely representing herself as sole (d), but it is doubtful 
 whether this extends to all cases of false representation by which 
 credit is obtained (e). For the same reason — that the law will not 
 allow the contract to be indirectly enforced — a *married [59 
 
 («) Inman v. Inman, 15 Bq. 260. 
 
 (b) Slater v. Brady, 14 Ir. C. L. 61, supra, p. 38. 
 
 (c) Cp. Benjamin on Bale, 27-31 [2d Am. ed., 36-40]. 
 
 (d) Per Cur. Fairhurst v. Liverpool Adelphia Loan Association, 9 Ex. 422, 
 429; 23 L. J. Ex. 164.; [Keen v. Hartman, 48 Pa. St. 497; "Woodward v. 
 Barnes, 46 Vt. 332.] 
 
 (e) Wright v. Leonard, 11 C. B. N. S. 258; 30 L. J. C. P. 365, where the 
 
 Court was dividod. 
 
 63 
 
59 CHAP. II. CAPACITY OF PARTIES. 
 
 woman is not estopped from pleading coverture by having de- 
 scribed herself as sui juris (a). 
 
 The fact that a married woman is living and trading apart from 
 her husband does not enable her at common law to contract so as 
 to give a right of action against herself alone (6). Nor does it 
 make any difference if she is living separate from her husband 
 under an express agreement for separation, as no agreement be- 
 tween hnsband and wife can change their legal capacities and 
 characters (c). 
 
 But " a married woman, though incapable of making a contract,. 
 is capable of having a chose in action conferred upon her, which 
 will survive to her on the death of the husband, unless he shall 
 have interfered by doing some act to reduce it into possession";, 
 thus, she may buy railway stock, and become entitled to sue for 
 dividends jointly with her husband (d). When a third person as- 
 sents to hold a sum of money at the wife's disposal, but does not 
 pay it over, this is conferring on her a chose in action within the 
 meaning of the rule (e). 
 
 During the joint lives of the husband and wife the husband is- 
 entitled jure mariti to receive any sum thus due; "but if the wife 
 dies before the husband has received it, the husband, although bis- 
 beneficial right remains the same, must in order to receive the 
 money take out administration to his wife (/) ; and if he dies without 
 having done so, it is necessary that letters of administration should 
 
 (a) Cannam v. Parmer, 3 Ex. 698; [Keen v. Coleman, 39 Pa. St. 299. Cp.. 
 Patterson v. Lawrence, 90 111. 174.] 
 
 (6) Clayton v. Adams, 6 T. E. 605; [Bank v. Bellis, 10 Cush. 276; Robinson- 
 v. Reynolds, 1 Aikens, 174; Rogers v. Phillips, 8 Ark. 366.] 
 
 (c) Marshall v. Eutton, 8 T. E. 545; see Lord Brougham's remarks, 3 M. <&• 
 K. 221; [Parker v. Lambert, 31 Ala. 89.] 
 
 (d) Per Cur. Dalton v. Midland Ry. Co., 13 C. B. 474; 22 L. J. C. P. 177. 
 And see 1 Wms. Saund. 222, 223; [Chappelle ■„. Olney, 1 Sawyer, 401 ; Hoop- 
 •o. Plummer, 14 0. S. 448; Hayward v. Hay ward, 20 Pick. 517; Schuyler v. 
 Hoyle, 5 Johns. Ch. 196; Lenderman v. Talley, 1 Houst. 523; Bond v. Conway, 
 11 Md. 512; Searing v. Searing, 9 Paige, 283; Revel v. Eevel, 2 Dev. & Bat. L. 
 272]. On the question what amounts to reduction into possession, see Williams 
 on Executors, 1. 801 (6th ed.), 856 (7th ed.); "Widgery v. Tepper, 5 Ch. D. 
 ■516. 
 
 (e) Pleet v. Perrins, L. E. 3 Q. B. 536; 4 Q. B. 500. 
 
 (/) [Jenkins v. Freyer, 4 Paige, 47 ; Willis v. Eoberts, 48 Me. 257 ; Dawson. 
 64 
 
MARRIED WOMEN. 60 
 
 be taken out to the wife's estate (a) (for such is still the legal char- 
 acter of the money), but the wife's administrator is only a trustee for 
 the representative of the husband" (b). Accordingly the Court of" 
 Probate can not dispense with the double administration, even 
 where the same person is the proper representative of both hus- 
 band and wife, and is also beneficially entitled (c). 
 
 *Inasmueh as, according to the view established by mod- [60 
 ern decisions, a promise to pay a debt barred by the Statute of 
 Limitation operates not by way of post-dating the original contract 
 so as to " draw down the promise " then made, but as a new 
 contract founded on the subsisting consideration (see the chapter 
 on Agreements of Imperfect Obligation, infra), a married woman's 
 general incapacity to contract prevents such a promise, if made by 
 her, from being effectual; and where before the marriage sh& 
 became a joint debtor with another person, that person's acknowl- 
 edgment after the marriage is also ineffectual, since to bind one's 
 joint debtor an acknowledgment must be such as would have 
 bound him if made by himself (i). 
 
 The rules of law concerning a wife's power to bind her husband 
 by contract depend partly on the general principles of agency, 
 partly on a peculiar authority implied in the relation of husband 
 and wife. They do not, however, fall within the province of this- 
 work (e). 
 
 v. Dawson, 2 Strobh. Eq. 34. Contra, Goddard v. Johnson, 14 Pick. 352 ; Byder 
 v. Hulsa, 24 N. Y. 372. 
 
 The statutes, 21 H. VIII., 22 and 23 Car. II., cap. 10, and 29 Car. II., cap. 3, 
 \ 25, together, gave the husband the right to administer upon his widow's es- 
 tate, and to take for his own benefit her chattels real, choses in action, trusts, 
 and every species of personal property ; Judge of Probate v. Chamberlain, 3' 
 N. H. 129. In many, perhaps most of the United States, the statutes pre- 
 vailing prescribe a different rule; Bishop on the Law of Married Women, 
 I 172-183.] 
 
 (a) [Lockwood v. Stockholm, 11 Paige, 87-91.] 
 
 (6) Per Lord Westbury, Partington v. Atty.-Gen. L. K., 4 H. L. 100, 119. 
 
 (c) In the Goods of Harding, L. E., 2 P. & D. 394. 
 
 (d) Pittam v. Poster, 1 B. & C. 248; 1 "Wms. Saund. 172; [Parrar v. Bessey, 
 24 Vt. 89.] 
 
 (e) On this see notes to Manby v. Scott, 2 Sm. L. C; Chitty on Contracts 
 (9th ed.) 159, sqq; [11th Am. ed. 231, sqq.j. 
 
 65 
 
61 CHAP. II. CAPACITY OF PARTIES. 
 
 Exceptions. — The wife of ;the King of England may by the com- 
 mon law sue and be sued as a feme sole (Co. Lit*. 133 a). 
 
 The wife of a person civilly dead may sue and be sued alone 
 <Ib. 132 b, 133 a). The cases dwelt on by Coke are such as prac- 
 tically can not occur at this day, and it seems that the only persons 
 who can now be regarded as civilly dead are persons outlawed 
 or convicted of felony, and not lawfully at large under any 
 license (<z). An alien enemy, though disabled from suing, is not 
 ■civilly dead, and his wife can not sue alone on a contract made 
 with her either before or during coverture; so that while he is an 
 alien enemy neither of them can maintain an action on the con- 
 tract. The remedy may thus be irrecoverably lost by the opera- 
 tion of the Statute of Limitation, but this inconvenience does 
 ■61] *not take the case out of the general rule (i). This decision 
 does not expressly overrule any earlier authority (and there is such 
 authority) (c) for the proposition that she may be sued alone. Bat 
 it is conceived that such must be the result. 
 
 It appears on the whole as the result of the authorities that the 
 wife of an alien husband who has never been in England may bind 
 herself by contract if she purports to contract as a feme sole. In 
 two cases at nisi prius Lord Kenyon held that the wife of an alien 
 who has left the kingdom for some time, and is not known to have 
 any intention of returning, may be sued alone on contracts made 
 
 (a) Transportation was considered as an abjuration of the realm, which could 
 be determined only by an actual return after the sentence had expired. Carrol 
 v. Bleneow, 4 Esp. 27. The analogy to Coke's " Civil Death " is discussed, arg. 
 in Ex parte Pranks, 7 Bing. 762. At common law convicted felons and out- 
 laws can not sue, but remain liable to be sued on contracts made by them 
 ■during outlawry or conviction. Chitty, Cont. 182 ; Dicey on Parties, 4. But, 
 .as to convicts, see 33 & 34 Vict., u. 23, ss. 8, 30. 
 
 (S) De Wahl v. Braune, 1 H. & N. 178; 25 L. J. Ex. 343. Perhaps it may 
 be doubted whether " civil death " was ever really appropriate as a term of art 
 in English courts except " when a man entereth into religion [i.e. a religious 
 •order in England] and is professed; " in that case he could make a will and ap- 
 point executors (who might be sued as such for his debts, P. N. B. 121, O.), and 
 if he did not, his goods could be administered (Litt. s. 200, Co. Litt. 1316). 
 Bracton, however, speaks of outlawry (4264), as well as religious profession 
 {3014), as mors civilis. The Boman mors civilis was a pure legal Action, intro- 
 duced not to create disabilities, but to obviate the inconvenient results of disa- 
 bilities otherwise created. (Sav. Syst. 2. 164.) As to the mort civile of modern, 
 Prench law (now abolished since 1854), see lb. 151 sqq. 
 
 (c) Derry v. Duchess of Mazarine, 1 Ld. Kaym. 147. 
 66 
 
MARRIED WOMEN. 62 
 
 "by her after his departure (a) ; the reason being, it seems, that in 
 the case of an alien no animus revertendi could be presumed. But 
 in a third action against the same defendant (the husband having 
 in the meantime returned to England and gone away again) Lord 
 Ellenborough took a different view and nonsuited the plaintiff. 
 fie thought such an action could be maintained only when the 
 husband had never been in the kingdom (in which case the right 
 of action had already been upheld by the Court of Common Pleas) 
 (6) : here the husband had lived with his wife in England, and 
 was under no legal disability to rejoin her. The Court refused a 
 rule to set aside the nonsuit (e). In a more modern case, again, 
 the Court of Exchequer thought that Lord Ellenborough had con- 
 ceded too much, and that such an action was in no case maintain- 
 able without showing that on the particular occasion the wife actu j 
 ally contracted as a feme sole (d). But it is submitted that as to the 
 *former point it would be enough to show that the husband [62 
 never had an English domicil, or at all events that he never re- 
 sided in England. It seems unreasonable that the mere fact of his 
 having at some time been in England (it may be for a day or even 
 less) should make all the difference (e.) 
 
 " By the custom of London, if a feme covert, the wife of a free- 
 man, trades by herself in a trade with which her husband does 
 not intermeddle, she may sue and be sued as a feme sole, and the 
 husband shall be named only for conformity; and if judgment be 
 given against them, she only shall be taken in execution." (Ba- 
 con, Abr. Customs of London, D.) This custom applies only to 
 the city courts (/), and even there the formal joinder of the hus- 
 
 (a) Walford v. Duchess de Pienne, 2 Esp. 554; Pranks a. same defendant, 
 lb. 587; Dicey on Parties, 296. 
 
 (b) De Gailloh v. L'Aigle, 1 Bos. & P. 357. 
 
 (c) Kay v. Duchess de Pienne, 3 Camp. 123. 
 
 (d) Barden v. Keverberg, 2 M. & W. 61 ; 6 L. J. Ex. 66. 
 
 (e) [Where the husband was never within the state, or has gone beyond its 
 jurisdiction, wholly renouncing his marital rights and duties and deserting his 
 wife, she may contract, and sue, and be sued in her own name. Gregory v. Paul, 
 15 Mass. 31 ; Rhea v. llenner, 1 Pet. 105 ; Rosenthal v. Mayhugh, 33 O. S. 155 ; 
 Wagg v. Gibbons, 5 O. S. 580; Clark v. Valentino, 41 Ga. 143 ;-<rregory v~. 
 Pierce, 4 Met. 478 ; Abbott v. Bayley, 6 Pick. 89 ; Bean v. Morgan, 4 McCord, 
 .148; Smith v. Silence, 4 la. 321 ; Ayer v. "Warren, 47 Me. 217; Blumenberg v. 
 .Adams, 49 Cal. 308.] , 
 
 (/) Caudell v. Shaw, 4 T. R. 361. 
 
 67 
 
63 CHAP. II. CAPACITY OF PARTIES. 
 
 band is indispensable. But if acted upon in those courts it may- 
 be pleaded as matter of defense in the superior courts (a), though 
 they do not otherwise notice the custom (b). 
 
 In certain exceptional cases in which the wife has an adverse- 
 interest to the husband she is not incapable of contracting with 
 him. Where a wife had instituted a suit for divorce, and she and- 
 ber husband had agreed to refer the matters in dispute to arbitra- 
 tion, her next friend not being a party to the agreement, the 
 House of IJords held that under the circumstances of the case she 
 might be regarded as a feme sole, that the agreement was hot in- 
 valid, and that the award was therefore binding (c). 
 
 The real object of the reference and award in this case having' 
 been to fix the terms of a separation, it has since been held that a 
 Court of Equity will not refuse to enforce an agreement to execute 
 a deed of separation merely because it has been made between the 
 husband and wife without the intervention of a trustee (d). It by 
 no means follows from these decisions, however, that agreements 
 of this kind create any legal right of action, though it might not 
 be safe to assert that such can not be their effect in any conciev- 
 able case (e). 
 
 Statutory exceptions. 
 
 By the Act constituting the Court for Divorce and Matrimonial- 
 Causes, 20 & 21 Vict. c. 85, a wife judicially separated 
 63] *from her husband is to be considered whilst so separated, 
 as a feme sole for the purposes of (inter alia) contract, and suing, 
 and being sued in any civil proceeding (s. 26) (/) ; and a wife de- 
 serted by her husband who has obtained a protection order, is in. 
 the same position while the desertion continues (s. 21). This sec- 
 
 (a) Beard v. Webb, 2 Bos. & P. 93. (b) Caudell v. Shaw, 4 T. E. 361. 
 
 (c) Bateman v. Countess of Ross, 1 Dow, 235. 
 
 (d) Vansittart v. Vansittart, 4 K. & J. 62; 27 L. J. Oh. 222; but the agree- 
 ment not enforceable for other reasons; affirmed on appeal, 2 De G. & J. 249; 
 27 L. J. Ch. 289, but no opinion given on this point. 
 
 (e) [See Thomas v. Brown, 10 O. S. 247 ; Dutton v. Dutton, 30 Ind. 452 ; 
 Hutton v. Hutton's Adm'r, 3 Pa. St. 100; Garver v. Miller, 16 O. S. 527;. 
 Lehr v. Beaver, 8W.&S. 102.] 
 
 (/) The same consequences follow a fortiori on a dissolution of marriage, 
 -though there is no express enactment that they shall. Wilkinson v. Gibson, 4 
 Eq. 162. See also, as to the divorced wife's rights, Wells v. Malbon, 31 Beav- 
 48; Fitzgerald v. Chapman, 1 Ch. D. 563; Burton v. Sturgeon (C. A.), 2 Ch. D._ 
 S18. 
 
 68 
 
MARRIED WOMEN'S PROPERTY ACT. 64 
 
 ftiou is so worded as when taken alone to countenance the supposi- 
 tion that the protection order relates back to the date of desertion. 
 It has been decided, however, that it does not enable the wife to 
 maintain an action commenced by her alone before the date of the 
 'Order (a). These provisions are extended by an amending Act in 
 certain particulars not material to be noticed here (21 & 22 Vict, 
 c. 108, ss. 6-9) ; and third parties are indemnified as to payments 
 to the wife, and acts done by her with their permission, under an 
 order or decree which is afterwards discharged or reversed (s. 10). 
 The words as to " suing and being sued " in this section are not 
 -confined by the context to matters of property and contract, but 
 are to be liberally construed : a married woman who has ob- 
 tained a protection order may sue in her own name for a libel (6). 
 The following statutory exceptions are created by the Married 
 Women's Property Act, 1870. By s. 1 the earnings, etc., of a mar- 
 ried woman acquired or gained after the passing of the Act in any 
 separate occupation are made her separate property; and by s. 11 
 -she may sue alone for them. The capital, stock-in-trade, etc., of a 
 business or employment carried on by a woman at the date of her 
 marriage, and afterwards continued on her separate account with 
 her husband's consent, are held to be also protected, by necessary 
 implication \d). Still more clearly would this be the case as to 
 new stock-in-trade, etc., acquired out of profits. The Act does 
 not give any new remedy to the creditors of a married woman for 
 •debts incurred by her in the course of any separate undertaking; 
 nor does it in any way affect their ^equitable rights (of which [64 
 presently) against her separate estate. Probably the presumption 
 -of an intention to bind the separate estate (which we shall find to 
 exist when a wife living apart from her husband incurs debts), 
 would be extended to all debts contracted by her in the course of a 
 -separate business whether living apart from her husband or not. 
 S. 11 further gives her for the protection of such wages, earnings, 
 etc., as are declared to be her separate property by s. 1, and of any 
 ■chattels or other property purchased or obtained by means thereof 
 for her own use, the same remedies, both civil and criminal, as if 
 
 (a) Midland Ry. Co. v. Pye, 10 C. B. N. S. 179; 30 L. J. C. F. 314. 
 
 (6) Ramsden v. Brearley, L. R., 10 Q. B. 147. She can give a valid receipt 
 "for a legacy not reduced into possession before the date of the order. Re Cow- 
 ard & Adam's Purchase, 20 Eq. 179. 
 
 (c) Ashworth v. Outram (C. A.), 5 Ch. D. 923. 
 
 69 
 
65 CHAP. II. CAPACITY OP PARTIES. 
 
 such wages, etc., belonged to her as an unmarried woman. It has- 
 been decided that under this section a married woman carrying on 
 a separate business may bring an action alone against her bankers- 
 for dishonoring her cheque, or for not duly presenting or not giv- 
 ing her notice of the dishonor of a bill of exchange acquired by 
 her in the course of such business (a). Both the words and the 
 operation of the enactment, however, are less extensive than those' 
 of 20 & 21 Viet. c. 85, ss. 25, 26. It does not enable a married 
 woman to contract or deal with property as a feme sole; for in- 
 stance, to transfer without her husband's concurrence stock to 
 which she is entitled for her separate use. Her remedy is to get 
 the stock registered in her own name as a married woman entitled 
 for her separate use, which by s. 3 she can do as to any sum in the 
 public funds not less than 201., and then that section enables her 
 to deal with it (b). 
 
 By s. 4, in like manner, a married woman entitled to fully paid 
 up shares in a company, or stock or debentures free from liability, 
 may have them registered as her separate property (c), but she is- 
 not expressly enabled to sue for dividends in her own name. By 
 s. 10 a married woman may effect a policy of insurance upon her 
 own life or the life of her husband for her separate use, " and the 
 contract in such policy shall be as valid as if made with an un- 
 married woman." 
 
 There is a statutory provision for renewal of leases by married 
 women : see 11 Geo. 4 & 1 Win. 4, c. 65. 
 65] * Separate Estate. 
 
 The moBt important and peculiar qualification of the general in- 
 capacity of married women to enter into contracts is their power, 
 now recognized after much confusion and difference of opinion, of 
 executing acts in the nature of contract which are binding on any 
 separate estate of which they have power to dispose. It would be 
 convenient, but we shall see that it would not be quite accurate, to 
 say more shortly that a married woman is in equity capable of con- 
 tracting to the extent of her separate estate. . The anomalies from 
 which the subject is not yet wholly free are due to the fragmentary 
 and discontinuous manner in which the doctrine of separate use has- 
 
 (a) Summers v. City Bank, L. R., 9 C. P. 580. 
 
 (b) Howard v. Bank of England, 19 Eq. 295. 
 
 (c) As to the duty of the company, see Beg. v. Carnatic By. Co., L. B., 8 Qj 
 B. 299. 
 
 70 
 
SEPARATE ESTATE. 6ft 
 
 been gradually put together. When the practice of settling prop- 
 erty to the separate use of married women first became common, it 
 seems probable that neither the persons interested nor the convey- 
 ancers had any purpose in their minds beyond excluding the hus- 
 band's marital right so as to secure an independent income to the 
 wife. The various forms of circumlocution employed in all but 
 very modern settlements to express what is now sufficiently ex- 
 pressed by the words " for her separate use " will at once suggest 
 themselves as confirming this. In course of time, however, it was 
 found that by recognizing this separate use the Court of Chancery 
 had in effect created a new kind of equitable ownership, to which 
 it was impossible to hold that the ordinary incidents of ownership 
 did not attach. The power of disposition inter vivos (which is all 
 that bears on our present subject) was accordingly admitted, in- 
 cluding alienation by way of mortgage or specific charge as well 
 as absolutely ; and we find it laid down in general terms about 
 a century ago that a, feme covert acting with respect to her separate 
 property is competent to act as a feme sole (a). Nevertheless the 
 equitable ownership of real estate by means of the separate use, car- 
 rying as incidents the same full right of disposition by deed or will 
 that & feme sole would have, has been fully recognized only by quite 
 recent decisions (6) : but this by the way. From a mortgage or 
 specific charge on separate property to a formal ^contract [6& 
 under seal, such as if made by a person sui juris would even then 
 have bound real estate in the hands 1 of his heir, we may suppose 
 the transition did not seem violent; and instruments expressing 
 such a contract to be entered into by a married woman came to he- 
 regarded as in some way binding on any separate property she- 
 might have. In what way they were binding was not settled for a 
 good while, for reasons best stated in the words of V.-C. Kinders- 
 ley's judgment in Vaughan v. Vanderstegen (c), where he gave an 
 historical summary of the matter. 
 
 "The Courts at first ventured so far as to hold that if" a married 
 woman " made a contract for payment of money by a written instrument 
 with a certain degree of formality and solemnity, as by a bond under her 
 
 (a) Hulme v. Tenant, 1 Wh. & T. L. C. In Peacocks Monk, 2 Ves.Sr. 196, 
 there referred to by Lord Thurlow, no such general rule is expressed. As to 
 the reeognitipn of separate property by Courts of Common Law, see Duncan v. 
 Cashin, L. E. 10 C. P. 554. 
 
 (6) Taylor v. Meads, 4 D. J. S. 597; Pride v. Bubb, 7 Ch. 64. 
 
 <c) 2 Drew, 165, 180. 
 
 71 
 
67 CHAP. II. CAPACITY OF PARTIES. 
 
 hand and seal, in that case the property settled to her separate use should 
 be made liable to the payment of it; and this principle (if principle it 
 ■could be called) was subsequently extended to instruments of a less for- 
 mal character, as a bill of exchange or promissory note, and ultimately to 
 any written instrument. But still the Courts refused to extend it to a 
 verbal agreement or other assumpsit, and even as to those more formal 
 engagements which they did hold to be payable out of the separate es- 
 tate, they struggled against the notion of their being regarded as debts, 
 and for that purpose they invented reasons to justify the application of 
 the separate estate to their payment without recognizing them as debts 
 or letting in verbal contracts. One suggestion was that the act of dispos- 
 ing of or charging separate estate by a married woman was in reality the 
 execution of a power of appointment (a), and that a formal and solemn 
 instrument in writing would operate as an execution of a power, which a 
 mere assumpsit would not do. . . . Another reason suggested was 
 that as a married woman has the right and capacity specifically to charge 
 her separate estate, the execution by her of a formal written instrument 
 must be held to indicate an intention to create such special charge, be- 
 cause otherwise it could not have any operation." 
 
 Both these suggestions are now untenable, as indeed V.-C. Kin- 
 dersley then (1853) judged them to be (£) ; the theory of specific 
 •charge was revived in the later case of Shattock v. Shattock (c), 
 67] but this must be considered as overruled *by the judgment in 
 the Privy Council presently to be mentioned. One or two other 
 suggestions — such as that a married woman should have only such 
 power of dealing with her separate estate as might be expressly 
 given her by the instrument creating the separate use — were thrown 
 out about the beginning of this century (d), during a period of re- 
 action in which the doctrine was thought to have gone too far, but 
 they did not find acceptance ; and the dangers which gave rise to 
 these suggestions were and still are provided against in another 
 way by the device of the restraint on anticipation, as curious an 
 example as any that English law presents of an anomaly grafted 
 on an anomaly (e). 
 
 (a) E.g. Duke of Bolton v. Williams, 2 Ves., at p. 149. 
 
 (6) Cp. Murray v. Barlee, 3 M. & K. 209, where the arguments show the his- 
 tory of the doctrine; Owens v. Dickenson, 1 Cr. & Ph. 48, 53, where the notions 
 of power and charge are both dismissed as inapplicable by Lord Oottenham. 
 
 (e) 2 Eq. 182, 193. 
 
 (d) See Jones v. Harris, 9 Ves. 486, 497 ; Parkes v. White, 11 Ves. 209, 220 
 sqq. ; and collection of cases 6 Ves. 17, note. 
 
 («) See Lord Cottenham's judgment in Tullett v. Armstrong, 4 M. & Cr. 
 893, 405. 
 11 
 
SEPARATE ESTATE. 68 
 
 It seems needless to enter into any discussion of the earlier 
 authorities. At present the locus classicus on the subject is the 
 judgment of Turner, L. J., in Johnson v. Gallagher (a), in which 
 those authorities are fully reviewed, and which is now strengthened 
 by the full approval of the Judical Committee in London Chartered 
 Bank of Australia v. Lempri6re (6). It had already been distinctly 
 followed in the Court of Appeal in Chancery as having placed the 
 doctrine upon a sound foundation (e). The general result, so far as 
 now concerns us, appears to be to this effect : 
 
 "Not only the bonds, bills and promissory notes of married 
 women, but also their general engagements, may affect their sepa- 
 rate estate" (3 D. F. J. 514): and property settled to a married 
 woman's separate use for her life, with power to dispose of it by 
 -deed or will, is for this purpose her separate estate (d). 
 
 These "general engagements" are subject to the forms imposed 
 ■by the Statute of Frauds or otherwise (e) on the contracts made in 
 pari materia by persons competent to contract generally, but not to 
 any other form : there is no general rule that they must be in 
 writing. 
 
 A "general engagement" is not binding on the separate estate 
 unless it appear " that the' engagement was made with reference 
 *to and upon the faith or credit of that estate " (3 D. F. J. [68 
 515). 
 
 Whether it was so made is a question of fact to be determined on 
 all the circumstances of the case : it is enough "to show that the 
 married woman intended to contract so as to make herself, that is 
 to say, her separate property, the debtor" (L. R. 4 P. C. 597). 
 
 Such intention is presumed in the case of debts contracted by a 
 married woman living apart from her husband (3 D. F. J. 521) (/). 
 ^(This tallies with the rule of common law which in this case ex- 
 cludes even as to necessaries the ordinary presumption of authority 
 to pledge the husband's credit: see notes to Manby v. Scott iii 
 :2 Sm. L. C.) 
 
 The like intention is inferred where the transaction would be 
 
 (a) 3 D. F. J. 494, 509 sqq. (b) L. E. 4 P. C. 572. 
 
 (c) Picard v. Hine, 5 Oh. 274. 
 
 (d) Mayd v. Field, 3 Oh. I). 587, 593; [Godfrey v. Harben, 13 Oh. D. 216 ; ] 
 
 (e) As to this, see infra, p. 73. 
 
 (/) [Coleman v. Wooleys Ex'r, 10 B. Mon. 320; Johnson v. Cummins, 16 N. 
 J. liq. 97.] 
 
 73 
 
69 CHAP. II. CAPACITY OF PARTIES. 
 
 otherwise unmeaning, as where a married woman gives a guaranty 
 for her husband's debt (a) or joins him in making a promissory 
 note (6). 
 
 The '' engagement" of a married woman differs from a contract, 
 inasmuch as it gives rise to no personal remedy against the mar- 
 ried woman, but only to a remedy against her separate property 
 (c), which may be lost by her alienation of such property before- 
 suit (3 D. P. J. 515, 519, 520-2). 
 
 In cases where specific performance would be granted as between' 
 parties sui juris, a married woman may enforce specific performance 
 of a contract made with her where the consideration on her part 
 was an engagement binding on her separate estate according to the- 
 above rules; and the other party may in like manner enforce 
 specific performance against her separate estate (d). 
 
 The term engagement, though in itself a vague one, seems to be 
 conveniently appropriated to this special purpose of expressing that 
 which in the case of a person sui juris would be a contract, but in 
 the case of a married woman can not be a contract because it creates 
 69] no personal obligation even in equity. *A word is certainly 
 wanted for the purpose, and this is an apt one as having no other 
 technical meaning, and as suggesting the close analogy (but no 
 more than analogy) of the thing signified to a true contract. One 
 might, be tempted to speak of the quasi-contract of a married woman, 
 but such a novel use would be much too remote from the established 
 meaning of the term. 
 
 The language of the Judicial Committee we have cited as to the- 
 married woman's intention of making herself — that is, her separate- 
 property — the debtor, suggests that the separate estate may be le- 
 
 (a) Morrell v. Cowan, 6 Ch. D. 166, reversed on another point in 7 Ch. D- 
 151, where no attempt was made to dispute that the guaranty, though not ex- 
 pressly referring to the separate estate, was effectual to bind it. 
 
 (*) Davies v. Jenkins, 6 Ch. D. 728; [Williams v. Urmston, 35 O. S. 296; 
 Cowles v. Morgan, 34 Ala. 535; Nunn v. Givhan, 45 Ala. 375; Burnett v. 
 Hawpe's Ex'r., 25 Gratt. 481, 488; Lincoln v. Kowe, 51 Mo. 571. Or gives her- 
 note in payment of her husband's debt. Wicks v. Mitchell, 9 Kan. 80. But see 
 next page, n. (6)]. 
 
 (c) For the form of decree for specific performance against a married 
 woman's separate estate, see Pieard v, Hine, 5 Ch. 274. 
 
 (d) The cases cited in Sug. V. & P. 206, so far as inconsistent with the mod- 
 ern authorities (see Picard v. Hine, last note ; Pride v. Bubb, 7 Ch. 64), must be- 
 
 considered as overruled. [Hinkley «. Smith, 51 N. Y. 21.] 
 74 
 
separatsMestate. G9* 
 
 garded as a sort of artificial person created by Courts of Equity, 
 and represented by the beneficial owner as an agent with full pow- 
 ers, somewhat in the same way as a corporation sole is represented 
 by the person constituting it for the time being. As a contract 
 made by the agent of a corporation in his employment can bind 
 nothing but the corporate property (a), the engagement of a mar- 
 ried woman can bind nothing but her separate estate. This way 
 of looking at it is no doubt artificial, but may possibly be found to- 
 assist in the right comprehension of the doctrine (b). 
 
 (a) Unless, of course, he contracts in such a way as to make it also his own 
 personal contract. 
 
 (b) ["It is not the woman, as a woman who becomes a. debtor, but her en- 
 gagement has made that particular part of her property which is settled to her- 
 separate use a debtor, and liable to satisfy the engagement. She herself is not 
 a debtor, within the meaning of the bankruptcy act." In re Grissell, 12 Ch. 
 D. 484, 490. 
 
 The confusion in regard to the power of a married woman to charge her' 
 separate estate, and as to what engagements of hers will affect it, has been even 
 greater in this country than in England. The subject is exhaustively reviewed. 
 in Radford v. Carwile, 13 W. Va. 572, 653, the opinion in which case may be 
 fairly called a treatise on the law of separate estate. The uncertainty attend- 
 ing the subject is illustrated by the two earliest cases of any note relating to- 
 it, Ewing v. Smith, 3 Desauss. 417, and Meth. Ep. Church v. Jacques, 3 Johns. 
 Ch. 77. The former, reversing the judgment of Ch. Desaussure, laid down the 
 rule that a married woman can charge her separate estate only in so far as the 
 instrument creating it expressly confers that power. In the latter this rule 
 was laid down by Ch. Kent only to be reversed by the court of errors in 17 
 Johns. 548. The prevailing doctrine now is that the jus disponendi is an inci- 
 dent to the possession of a separate estate, and that, in any manner not forbid- 
 den by the instrument creating it, a married woman may dispose of or incum- 
 ber her property. Kadford v. Carwile, 13 W. Va. 572, 653 ; Cheever v. Wilson, 
 9 Wall. 108; Phillips v. Graves, 20 O. S. 371; Imlay v. Huntington, 20 Conn.. 
 146 ; Burnett v Hawpe's Ex'r., 25 Gratt. 481. 
 
 Where the engagement of a married woman is made expressly upon the- 
 credit of her separate estate, or the indebtedness is expressly made a charge- 
 upon it, it is agreed that equity will decree that it shall be paid from such es- 
 tate or its income, to the extent to which the power of disposal by the married 
 woman may go. Stephen r.'Beall, 22 Wall. 329 ; Heburn v. Warner, 112 Mass. 
 271 276; Insurance Co. v. Babcock, 42 N. Y. 613; Wooden v. Perkins, 5~ 
 Gratt. 345; Elliott v. Gower, 12 8. I. 79 ; Hall v. Eccleston, 37 Md. 510. 
 
 Where, by the contract, the consideration is to inure to the benefit of the- 
 married woman, or of her separate estate, the intention to bind the separate es- 
 'tate need not be expressed, but may be implied. McVey v. Cantrell, 70 N. Y- 
 295- Williams v. King, 13 Blatchf. 282; Wells v. Thorman, 37 Conn.' 318. 
 
 It is generally agreed that when a married woman executes a note, bond, oir 
 v ° 75 
 
-69 CHAP. II. CAPACITY OF PAETIES. 
 
 Some instances of ordinary contracts which may be incidental 
 
 to the management and enjoyment of separate estate, so that it 
 
 would be highly inconvenient if. the separate estate were not bound 
 
 by them, are given in the judgment of the Judicial Committee 
 
 .above referred to (L. E., 4 P. C, at p. 594). 
 
 One application of the modern doctrine which deserves to be 
 
 .specially noticed is that a married woman may be a shareholder 
 
 in a company, and in the event of a winding-up a contributory in 
 
 respect of her separate estate, if there is nothing special to prevent 
 
 other obligation, her intention to bind her separate estate may be inferred 
 therefrom. Jarman v. Wilkerson, 7 B. Mon. 293 ; Phillips v. Graves, 20 0. S. 
 -371 ; Lillard v. Turner, 16 B. Mon. 374; Bank v. Taylor, 62 Mo. 338; Ozley v. 
 Ikelheimer, 26 Ala. 332 ; Sprague v. Tyson, 44 Ala. 338 ; Dallas v. Heard, 32 
 Ga. 604 ; Dobbin o. Hubbard, 17 Ark. 189, 196; Batchelderv. Sargent, 47 N. H. 
 262, 265 ; Garland v. Pamplin, 32 Gratt. 305. 
 
 This implication is not affected by the fact that the wife, with her husband, 
 -executes a mortgage to secure the payment of such note. Avery v. Vansickle, 
 350. S. 270. 
 
 In some states, however, it is held that unless the consideration of the con- 
 tract is to inure to the benefit of the married woman, or of her separate estate, 
 the intention to bind her separate estate must be expressed, and that her giving 
 a note for the debt is no expression of such intention. Where, for instance, 
 . she signs a note as surety for another, even though that other be her husband 
 (see supra, p. 68), it is held that this is not enough to make her separate estate 
 liable, unless she expressly declare such intention in the note itself, and that the 
 -existence of such intention can not be established by parol evidence. Yale v. 
 Dederer, 18 N. X". 265 ; 22 N. Y. 450; 68 ST. Y. 329 ; Willard v. Eastham, 15 
 Gray, 328; Williams -o. Hugunin, 69 111. 214; Flanders „. Abby, 6 Biss. 16; 
 Hodson v. Davis, 43 Ind. 258; Nourse v. Henshaw, 123 Mass. 96; Pippen v. 
 Wesson, 74 N. C. 437; Manhattan Co. v. Thompson, 58 N. Y. 80; Peake v. 
 La Baw, 21 N. J. Eq. 269. 
 
 In every state in the Union statutes have been passed intended to increase 
 the power of married women to contract. These, and the interpretations put 
 upon them, differ so in the various states as to make a brief general statement 
 of what engagements of a married woman are or are not binding simply im- 
 possible. Nearly every state has a statute which makes the property of a 
 woman which belongs to her at the time of her marriage, or which comes to 
 her by gift, devise, descent, or purchase with her separate means after marriage, 
 her separate estate. In consequence of these statutes, a large proportion of the 
 wealth of every state must always be in the hands of married women, and this 
 fact will doubtless operate towards the establishment, either by legislation or 
 the course of judicial decision, of the only simple and logical rule that the sep- 
 arate estate of a married woman shall be held liable for all engagements en-- 
 itered into by her, when it appears expressly or by fair inference that she in- 
 tended to contract on her own responsibility.] 
 76 
 
SEPARATE ESTATE. 70'' 
 
 it in the constitution of the company (a). And a shareholder who 
 has acquired shares by a married woman's direction and as a 
 trustee for her separate use on the understanding that they are to 
 be paid for out of her separate estate is entitled to be indemnified 
 by the separate estate against all calls and liabilities incurred in 
 respect of the shares (b). There *appears to be nothing to [70 
 prevent a married woman from entering into an ordinary partner- 
 ship as far as concerns her separate estate (c). It also seems pos- 
 sible that in this way she may become a partner with her own 
 husband (d). For administrative purposes, at least, the Court may 
 act as if that relation existed (e). 
 
 A married woman's engagement relating to her separate prop- 
 erty will have the same effect as the true contract of an owner sui 
 juris in creating an obligation which will be binding on the prop- 
 erty in the hands of an assignee with notice (J). 
 
 So far the principles may be taken as settled ; various questions 
 of detail, however, are still open. If a married woman enters into 
 an engagement, having no separate property at the time, will this- 
 bind any separate property she may afterwards acquire? No de- 
 cision on this point is known to us. If the engagement be made 
 expressly with reference to alleged separate property or to the ex- 
 pectation of acquiring it, there seems to be no reason why it should 
 not be good by estoppel (<?) at all events. But if it be made only 
 
 (a) Matthewman's ca., 3 Bq. 781. (b) Butler v. Cumpston, 7 Bq. 61. 
 
 (c) Lindley, 1. 86; [Penn v. Whitehead, 17 Gratt. 503.] 
 
 (d) [In re Kinkead, 3 Biss. 405.] (e) Ee Childs, 9 Oh. 508. 
 (/) Per Jesse], M. E., Warne v. Eoutledge. 18 Eq. 500. 
 
 (g) A married woman may be bound by estoppel, per James, L. J., 7 Ch., at. 
 p. 776, and see Sharpe v. Boy, 4 Ch. 35 ; Re Lush's trusts, lb. 591 ; [Norton v. . 
 Nichols, 35 Mich. 148 ; Connoly v. Branstler, 3 Bush, 702 ; Bead v. Hall, 57 N. 
 H. 482; O'Brien v. Hilburn, 9 Tex. 297; Bodine v. Kileen, 53 N. T. 93; Lich- 
 t.enberger v. Graham, 50 Ind. 288; Scran ton v. Stewart, 52 Ind. 68, 94; Nixon 
 v. Halley, 78 111. 611; Patterson v. Lawrence, 90 111. 174; Wright v. Arnold, 14 
 B. Mon. 513; Spafford v. Warren, 47 la. 47; Cooley v. Steele, 2 Head, 605 
 Lathrop v. Soldiers' Ass'n, 45 Ga. 483 ; Godfrey v. Thornton, 46 Wis. 677, 690 
 McCullough v. Wilson, 21 Pa. St. 436; Nash „. Mitchell, 71 N. Y. 199, 203 
 Shivers v. Simmons, 54 Miss. 520 ; Busk v. Benton, 14' Bush, 490 ; Meily v. But- 
 ler, 26 O. S. 535.] It is sometimes said that infants and femes covert can do no 
 act to estop themselves (7 T. E., at p. 539) ; but probably this applies only to 
 false representations of their legal capacity, as in Cannam v. Parmer, 3 Ex. 698, 
 supra, p. 59. [But there are authorities which hold that a married woman can not, 
 by estoppel, transfer title to her real estate. Lowell v. Daniels, 2 Gray, 1 61 ; Todd 
 
 77 
 
70 CHAP. II. CAPACITY OP PARTIES. 
 
 under circumstances from which, according to Johnson v. Gallagher, 
 supra, an intention to pay out of separate estate would be pre- 
 sumed, it is difficult to see how such a presumption can arise when 
 there is no separate estate at the time. A vague intention to pay, 
 ■or hope of being paid, out of any after-acquired separate estate 
 may perhaps exist, but is hardly probable enough to be reasonably 
 presumed. 
 
 Accordingly the burden of proof would, in such a case, be upon 
 the creditor to show that the engagement was in fact made on the 
 faith of supposed separate property. There would be no such 
 •difficulty if the engagement were a true contract, creating a per- 
 sonal obligation ; but this we have seen it is not. (e). 
 
 v. Eailroad Co., 19 0. S. 514; Glidden v. ' Strupler, 52 Pa. St. 400; Behler v. 
 Weyburn, 59 Ind. 143; Wood v. Terry, 30 Ark. 385; Morrison v. Wilson, 13 
 Cal. 494; Coal Co. v. Pasco, 79 111. 170; Drury u. Poster, 2 Wall. 24; Boss v. 
 , Singleton, 1 Del. Ch. 149; Merriam v. Eailroad Co., 117 -Mass. 241. 
 
 The principle upon which these cases are rested is that the greatest force is 
 given to an estoppel when it is made equal to the deed of the person against 
 whom it is invoked, and that the deed of a married woman is void. A man 
 can convey his land only by deed; its execution is but a formality, his having 
 complied with which he may be estopped to deny. A married woman is pow- 
 erless alone to convey her land; as to her sole deed there is a question, not of 
 -compliance with a formality, but of power: as she can, in no way, alone convey 
 her land, it follows that she can in no way estop herself to say that she has not 
 conveyed it.] 
 
 (e) [In Fallis v. Keys, 35 O. S. 265, it was decided that the engagement of a 
 married woman having no separate estate at the time it was entered into, will 
 not, in the absence of circumstances creating an estoppel, bind her separate es- 
 tate subsequently acquired. Gilmore, C. J., delivering the opinion, said, pp. 
 266-267: "I am not prepared to say that if a married woman having separate 
 property in expectancy should enter into an engagement expressly with refer- 
 ence to it, and intending thereby to create a charge upon it, that a court of 
 • equity would not enforce the charge, when the property afterwards came into 
 her possession; for this would be carrying into effect the intention of the par- 
 ties. But in the absence of such an intention, either expressed -or to be clearly 
 implied from the facts, a married woman can not, by her engagements incur 
 liabilities, for the payment of which her after-acquired separate property can 
 be charged." 
 
 "A general engagement of a married woman who has separate estate, made 
 on the faith or credit of such estate, binds all property belonging to her at the 
 date of judgment in the action, whether it belonged to her at the time of the 
 engagement or was acquired afterwards; and it binds such property, even if 
 ■ originally subject to restraint on anticipation, provided that before the judg- 
 ement the restraint had become inoperative by the death of the husband. And 
 
SPECIAL QUESTIONS ON SEPARATE ESTATE. 71 
 
 Again, if a married woman become sui juris by the death of the 
 ■"husband, judicial separation or otherwise, what becomes *of '[71 
 the debts of her separate estate? It is impossible to say that they 
 become legal debts (a). Not to speak of the technical difficulties 
 in which the substantial difficulty would express itself in practice, 
 this would be to create a new right and liability quite different 
 from those originally created by the parties. In equity there is no 
 doubt a remedy, but to what extent? It may be contended with 
 some plausibility (and has in sundry cases been assumed rather 
 than decided) that the creditor's original right was against the 
 separate property and that only; that he is indeed not to be de- 
 prived of his right because the properly has ceased to exist as 
 separate property ; but that on the other hand theje is no reason 
 why his position should be improved, and that all he can do is to 
 follow in the hands of the owner or her representatives the sepa- 
 rate estate held by her at the time when she became sui juris (V). 
 It seems not improbable, however, that the Court may, when the 
 point again distinctly arises, take another step toward treatingthe 
 -engagement as a real contract, and may refuse thus to limit the 
 liability of the party or her estate (c). Another kindred question 
 is this : Can the wife's separate estate be held" liable for her debts 
 ■contracted before marriage? Apart from recent legislation it 
 seems .no less difficult to hold that the coverture and the existence of 
 
 it seems it is immaterial, whether or not the woman had any separate estate at 
 all at the time of the engagement." Pike v. Fitzgibbon, 28 W. R. 667; 14 Ch. 
 D. 837. And see Maxon v. Scott, 55 N. Y. 247 ; Flower v. Buller, 28 W. R. 948. 
 
 Under statutes enabling a married woman to enter into any contract relating 
 to her separate estate, it has been decided that ber promise is binding when it 
 is given as part of a transaction, the purpose and end of which is to create for 
 her a separate estate. Herrington v. Robertson, 71 N. Y. 280.] 
 
 (a) [Contra, King v. Mittlebarger, 50 Mo. 182; Hooten v. Ransom, 6 Mo. 
 App. 19.] 
 
 (6) This view seems to have been taken in the Court below in Johnson v. 
 Gallagher, where the bill was filed after the death of the husband (see 3 D. F. 
 J. 495, and the decree appealed from, at p. 497) ; and it appears in earlier cases, 
 as- Field u.Sowle, 4 Russ. 112, which, however, are now of little or no authority, 
 since they involve the exploded theory that the separate estate can be affected 
 only by way of charge or appointment. In Heatley v. Thomas, 15 Yes. 596, 
 and Nail v. Punter, 5 Sim. 555, it also does not appear whether the woman had 
 any other property sui juris. [Dobbin v. Wright, 17 Ark. 189.] 
 
 (c) [See Leaycraft v. Hedden, 3 Green's Ch. 512, 552.J 
 
 79 
 
72 CHAP. II. CAPACITY OP PARTIES. 
 
 separate property enable the creditor to substitute for a legal right 
 a wholly different equitable right, than to hold that the cessation; 
 of the coverture turns that sort of equitable right into a legal debt. 
 It has been decided that after the husband's bankruptcy the wife's- 
 separate estate is liable in equity to pay her debts contracted be- 
 fore the marriage (a); but the V.-C. seems to have decided the 
 case partly on the ground that the bankruptcy was evidence that 
 the settlement of the property to the wife's separate use was fraudu- 
 72] lent as against her ^creditors. Before the Debtors' Act, 1869, 
 when a married woman and her husband were sued at law on a 
 debt contracted by her before the marriage, and either the husband 
 and wife or the wife alone had been taken in execution, the wife- 
 was entitled to be discharged only if she had not separate property 
 out of which the debt could be paid (6) ; and an order for pay- 
 ment can now be made under s. 5 of the Debtors' Act on a mar- 
 ried woman, and the existence of sufficient separate estate would 
 justify commitment in default (c). But the practice of the Courts- 
 in the exercise of this kind of judicial discretion does not throw 
 much light on the question of a direct remedy. It only amounts 
 to the recognition of something more than a mere moral duty but 
 less than a legal duty, as in the cases (noticed in another chapter, 
 see Ch. XII) where the payment of costs, etc., which could not be 
 directly recovered is nevertheless indirectly enforced. 
 
 However, a wife who has been married since the Married 
 "Women's Property Act, 1870, came into operation (9th August,. 
 1870), may be sued alone [at law or in equity? probably both, as- 
 there are no express words to exclude the general equitable jurisr 
 diction over separate estate] for her debts contracted before mar- 
 riage, and any property belonging to her for her separate use is 
 liable to satisfy such debts (s. 12) (d). This extends to separate prop- 
 fa) Chubb v. Stretch, 9 Eq. 555, following Biscoerc. Kennedy, briefly reported 
 in marginal note to Hulme v. Tenant, 1 Bro. 0. C. 17, and 1 Wh. & T. L. 0. 
 483 (4th ed.); [Dickson v. Miller, 11 S.'& M. 594. Contra, Vanderheyden v.. 
 JBallory, 1 N. Y. 452.] 
 
 (b) Ivens v. Butler, 7 E. & B. 159, 26 L.'J. Q. B. 145; Jay v. Amphlett, 1 H.. 
 & C. 637, 32 L. J. Ex. 176. 
 
 (c) Dillon v. Cunningham, L. K. 8 Ex. 23. Here the married woman had: 
 been sued alone, and there was no plea of coverture; but probably the same 
 course would be taken in the case of a judgment against husband and wife for- 
 the wife's debt dum sola. 
 
 (d) In actions against a married woman in respect of her separate estate 
 the husband must still be joined as a party in all cases except those in which 
 
 80 
 
SPECIAL QUESTIONS ON SEPARATE ESTATE. t3 
 
 erty subject to a restraint on anticipation (a). The same sectiom 
 enacted without qualification that the husband should not be liable ;; 
 so that where there was no settlement the creditor had no remedy 
 at all during the coverture. But this is repealed as to marriages' 
 taking place after the 30th July, 1874, by the Amending Act of 
 that year (37 & 38 Vict. c. 50) ; a husband and wife married after 
 that date may be jointly sued for her antenuptial debts (s. 1) and 
 the husband is liable to the extent of the assets specified in s. 5, 
 which comprise all interests acquired by him in right of his wife* 
 or by any settlement of her property on the marriage, and any 
 property of which a disposition may have been *made by her [7£ 
 with his consent " with the view of defeating or delaying her exist- 
 ing creditors.'' 
 
 Again, a married woman's engagement with respect to her separ- 
 ate estate is not bound by any peculiar forms. But is it on the 
 other hand bound in every case by the ordinary forms of contract?" 
 In other words, can an instrument or transaction ever take effect 
 as an engagement binding separate estate which could not take ef- 
 fect as a contract if the party were sui juris? The analogies we- 
 have hitherto pursued, and on which the leading modern authori- 
 ties are founded, would certainly lead us to say yes to the first form 
 of the question, and no to the second. That is to say, the creditor 
 must first produce evidence appropriate to the nature of the trans- 
 action which would establish a legal debt against a party sui juris, 
 and then he must show, by proof or presumption as explained above 
 an intention to make the separate estate the debtor. There is, how- 
 ever, a decision the other way. In McHenry v. Davies (b) a mar- 
 ried woman, or rather her separate estate, was sued in equity on a. 
 bill of exchange indorsed by her in Paris. It was contended for 
 the defense, among other things, that the bill was a French bill and 
 informal according to French law. The M. R. held that this was im- 
 material, for all the Court had to be satisfied of was the general inten- 
 tion to make the separate estate liable, of which there was no doubt. 
 This reasoning is quite intelligible on the assumption that engage- 
 ments bind separate estate only as specific charges ; the fact that the 
 instrument creating the charge simulated more or less successfully a 
 
 the Married "Women's Property Act, 1870, expressly provides that she may bet 
 sued alone. Hancocks v. Lablache, 3 0. P. D. 197. 
 (a) Sanger v. Sanger, 11 Eq. 470. (b) 10 Eq. 88. 
 
 81 
 
74 0HAP. II. CAPACITY OP PARTIES. 
 
 bill of exchange would then be a mere accident (a). The judgment 
 bears obvious marks of this theory; we have seen indeed that it 
 -was expressly adopted by the same judge in an earlier case (6), aud 
 we have also seen that it is no longer tenable. Take away this as- 
 •Biimption (as it must now be taken away) and the reasoning proves 
 far too much : it would show that the indorser sui juris of a bad bill 
 ■of exchange ought to be bound notwithstanding the law merchant, 
 because he has expressed his intention to be bound. The true doc- 
 74:] trine *being that the "engagement" differs from a contract 
 not in the nature of the transaction itself, but in making only the 
 •separate estate the debtor, it follows that in all that relates to the 
 transaction itself the ordinary rules and limitations of contract ap- 
 ply. In Johnson v. Gallagher it is assumed that a married woman's 
 ■engagements concerning her separate interest in real estate must 
 ■satisfy the conditions of the Statute of Frauds (e). An engagement 
 which if she were sui juris would owe its validity as a contract to 
 the law merchant must surely in like manner satisfy the forms and 
 conditions of the law merchant. The result is that we venture to 
 submit that the authority of McHenry v. Davies (d) on this point 
 must now be regarded as exceedingly doubtful. 
 
 There is some authority, but of a most inconclusive kind, for the 
 position that the Statute of Limitation, or rather its analogy, does 
 not apply to claims against the separate estate : namely an obscurely 
 Teported case at the Eolls in 1723, when the modern doctrine had 
 •not come into existence (e), and an Irish case in recent times where 
 the Chancellor followed this authority, and adhered to his opinion 
 on appeal, the Lord Justice dissenting (/). It is conceived that at 
 least in an English court of equity the question would at present be 
 quite open. 
 
 It is said that a married woman's separate estate can not be made 
 liable as on a contract implied in law {quasi-contract in the proper 
 
 (a) Note, however, that in the case of parties sui juris a bill of exchange can 
 not be treated as an equitable assignment. Ex parte Shellard, 17 Eq. 109 ; 
 Shand v. Du Buisson, 18 Eq. 283 [but see Daniel on Neg. Inst., ch. 1, sec. 8]. Nor 
 a cheque : Hopkinson v. Poster, 19 Eq. 74 [but see Daniel on Neg.' Inst., 
 £1643sqq.] 
 
 (b) Shattock v. Shattock, 2 Eq. 182; supra, p. 66. 
 
 (c) 3 D. P. J. at p. 514. ' (d) 10 Eq. 88. 
 
 (e) Norton v. Turville, 2 P. Wms. 144; and see 8 Ir. Ch., appx. 
 (/) Vaughn v. Walker, 6 Ir. Ch. 471 ; 8 lb. 458. [But Bacon, V.-C, has 
 since followed Norton v. Turville, in Hodgson v. Williamson, 15 Ch. D. 87.] 
 82 
 
TENDENCY OF MODERN DOCTRINE OF SEPARATE ESTATE. 7!> 
 
 -sense) as for instance to the repayment of money paidby mistake or 
 -on a consideration which has wholly failed (a). But the decisions 
 to this effect belong (with one exception) to what we have called 
 the period of reaction, and are distinctly grounded on the exploded 
 notion that a " general engagement," even if express, is not binding 
 on the separate estate. 
 
 The exception is the modern case of Wright v. Chard (b), where 
 V.-C. Kindersley held that a married woman's separate estate was 
 not liable to refund rents which had been received by *her as [75 
 •her separate property but to which she was not in fact entitled. 
 But the language of the judgment reduces it to this, that in the 
 still transitional state of the doctrine, and in the absence of any 
 precedent for making the separate estate liable in any case without 
 writing (this was in 1859, Johnson v. Gallagher not till 1861), the 
 V.-C. thought it too much for a court of first instance to take the 
 new step of making it liable " in the absence of all contract : " and he 
 admitted that " the modern tendency has been to establish the prin- 
 ciple that if you put a married woman in the position of a feme sole 
 in respect of her separate estate, that position must be carried to 
 the full extent, short of making her personally liable." On the 
 whole it may perhaps be fairly thought that the question is open. 
 If it may be so treated, the test of liability would seem, on princi- 
 ple to be whether the transaction out of which the demand arises 
 had reference to or was for the benefit of the separate estate. 
 
 It will be easily perceived that the difficulties and anomalies 
 which attend this subject would, be almost if not entirely removed 
 by holding (as suggested by V.-C. Kindersley's dictum just quoted) 
 that a married woman's disability to contract means only disability 
 to create an immediate personal obligation enforceable against her 
 as such during the coverture ; that her engagements during cover- 
 ture (excluding of course all contracts made by her either in fact 
 or by presumption of law as her husband's agent) are true con- 
 tracts, on which the personal remedy is suspended; and that the 
 equitable remedy against the separate estate, when there is any, 
 ■comes in simply as a temporary substitute for this. It is true that 
 such a doctrine would be convenient and consistent, and it is also 
 -true that modern decisions have gone some way in this direction. 
 
 (a) 3 D. F. J. 512, 514, referring to Duke of Bolton v. Williams, 2 Ves. 138 ; 
 Jones v. Harris, 9 Ves. 493 ; and Aguilar v. Aguilar, 5 Madd. 414. 
 
 lb) 4 Drew, 673, 685 : on appeal, 1 D. F. J. 567, but not on this point. 
 
 83 
 
76 CHAP. II. CAPACITY OF PARTIES. 
 
 But it is impossible to say that such is at present the doctrine- 
 of English courts of equity. "Whether it may yet be made so by" 
 a decision or series of decisions of the Court of Appeal is by no- 
 means a visionary question ; but there are hardly sufficient mate- 
 rials for forming any decided opinion upon it. 
 
 The present state of the law has been thus summed up by the- 
 Master of the .Rolls : — 
 
 "A married woman is liable^or rather her separate estate is 
 liable (for there is no personal liability as far as she is concerned) 
 [76 * — to make good all contracts which are made by her with' 
 express reference to the separate estate, or which from the nature 
 of the contract itself must be intended to be so referred : but she is 
 not liable even for general contracts which from their nature can 
 not be so referred ; a fortiori she is not liable for general torts but- 
 her husband is liable. Her separate estate may be liable for a fraud 
 relating to the separate estate, that is, dealing with the separate- 
 estate by way of fraudulent representation " — but not for an inde- 
 pendent wrong or breach of trust (a). 
 
 Lord St. Leonards states it as the better opinion " that a married' 
 woman having a power of appointment can bind herself by a con- 
 tract to sell the property,'' i.e. independently of any interest for- 
 ber separate use that she may have : Mr. Dart seems to think this 
 is confined to contracts executed with the formalities required by 
 the power, which would reduce the proposition to a very narrow 
 scope. The cases cited appear to furnish no direct authority (b). 
 On principle one would think such an agreement can have no other- 
 operation than as an execution or imperfect execution of the power- 
 itself. 
 
 ,/ III. — Lunatics and Drunken Persons. 
 
 It will be convenient to consider these causes of disability 
 together, since, (at any rate by the modern understanding of the- 
 law) drunken men and lunatics are in the same position with re- 
 gard to the capacity of contracting. Three different theories on 
 the matter have at different times been entertained in English courts- 
 and supported by respectable authority. Before we specially men- 
 tion these it will be best to dispose of the points on which there- 
 has not been any substantial conflict. 
 
 (a) Wainford v. Heyl, 20 Eq. 321, 324. 
 
 (8) Sug. V. & P. 206 ; Dart V. & P. 2. 1000; Stead v. Nelson, 2 Beav. 246, is 
 the case most nearly in point. 
 84 
 
LUNACY AND DRUNKENNESS. 77 
 
 -First, as to the peculiar and exceptional contract of marriage- 
 'The marriage of a lunatic is void, and there is no ground for re- 
 -quiring a less degree of sanity for a valid marriage than for the 
 making of a will or for other purposes (a).-, Apart from this, it 
 seems to have been admitted from the first both at law and in equity, 
 on the one hand that a lunatic is incapable of contracting *or [77 
 doing other acts in the law after he has been found lunatic by in- 
 quisition and while the commission of lunacy is in force (b) ; and 
 on the other hand that a lunatic who has lucid intervals is capable 
 •of contracting during those intervals (c). 
 
 It is equally settled both at law and in equity, without any real 
 authority that we are aware of to the contrary, that a lunatic or 
 his estate may be liable quasi ex contractu for necessaries supplied 
 to him in good faith (d) ; and this applies to all expenses neces- 
 sarily incurred for the protection of his person or estate, such as 
 the costs of the proceedings in lunacy (e). A husband is liable for 
 necessaries supplied to his wife while he is lunatic; for the wife's 
 -authority to pledge his credit for necessaries is not a mere agency, 
 but springs from the relation of husband and wife and is not re- 
 voked by the husband's insanity (/). In the same way drunken- 
 ness or lunacy would be no answer to an action for money had and 
 
 (a) Hancock v. Peaty, L. K. 1 P. & D. 335, 341. The statute, 15 Geo. 2, c. 
 ■ 30 is rep. by the Stat. Law Revision Act, 1873, [Rawdon v. Rawdon, 28 Ala. 
 565; Middleborough v. Rochester, 12 Mass. 363; Wightman v. Wightman, 4 
 Johns. Ch. 343; Poster v. Means, 1 Speer's Kq. 569; Jenkins v. Jenkins' Heirs, 
 2 Dana, 102.] 
 
 (6j Beverley's ca., 4 Co. Rep. 123 b; Bacon, Abr. Idiots and Lunatics (P). 
 ;[See Wadsworth v. Sharpsteen, 8 N. Y. 388; L ! Amoureux v. Crosby, 2 Paige, 
 422 ; Leonard v. Leonard, 14 Pick. 280.] 
 
 (cj Beverley's ca. ; Hall v. "Warren, 9 Ves, 605 ; cp. Selby v. Jackson, 6 
 Beav. 192; [Lilly v. Waggoner, 27 111. 395; Tozer v. Saturlee, 3 Grant's Cas. 
 162; McCormick v. Littler, 85 111. 62.] 
 
 (d) Baxter v. Barl of Portsmouth, 5 B. & C. 170; s. c. more fully, nom. Bag- 
 ster v. Earl P., 7 D. & R. 614 ; [Van Horn v, Hann, 39 N. J. L. 207 ; Sawyer v. 
 Lufkin, 56 Me. 308; Kendall u. May, 10 Allen, 59; La Rue v. Gilkyson, 4 
 Pa. St. 375 ; Richardson v. Strong, 13 Ired. L. 106; Coleman v. Prazer, 3 Bush, 
 300, 310.] 
 
 (e) Williams v. "Wentworth, 5 Beav. 325; Stedman v. Hart, Kay, 607; [Hal- 
 Jett v. Oakes, 1 Cush. 296 ; McCrillis u. Bartlett, 8 N. H. 569 ; In re Meares, 
 10 Ch. D. 552.] 
 
 (/) Read v. Legard, 6. Ex. 636, 20 L. J. Ex. 309; [Shaw v. Thompson, 16 
 TPick. 198; Pearl v. McDowell, 3 J. J. Marsh. 658.] 
 
 85 
 
78 CHAP. II. CAPACITY OF PARTIES. 
 
 received, or for the price of goods furnished to a drunken or insane- 
 man and kept by him after he had recovered his reason : in this 
 last case, however, his conduct in keeping the goods would be evi- 
 dence of a new contract to pay for them, which would be a real 
 contract inferred in fact, not a quasi-contract implied in law (a). 
 
 There is also express authority (which one would think hardly 
 necessary) to show that contracts made by a man of sound mind 
 who afterwards becomes lunatic are not invalidated by the- 
 lunacy (£>). We now come to the different theories above men- 
 tioned. 
 
 1. The first is that the drunkenness or lunacy of the party is no- 
 ground whatever for avoiding the contract. For " as for a drunk- 
 ard who is voluntarius daemon, he hath (as hath been said) no priv- 
 ilege thereby, but what hurt or ill soever he doth, his drunkenness 
 doth aggravate it.'' (Co. Litt. 247 a.) And although this morab 
 reason does not exist in the case of lunacy, yet the lunatic is equally 
 78] bound, for " no man of full age shall *be received in any plea 
 by the law to disable his own person, but the heir may well disa- 
 ble the person of the ancestor for his own advantage in such case." 
 (Litt. 247 b; ace. Beverley's ca. 4 Eep. 123 b, where, however, it is- 
 said that even the heir or executor could not avoid matter of record, 
 and another idle reason is given for the general rule, viz., that the 
 party when he recovers his memory can not remember what he did 
 when he was non compos mentis). As regards drunkenness, this 
 doctrine is on the face of it a wholly mistaken application of a prin- 
 ciple which is properly applicable to criminal offenses and merely 
 wrongful acts, but has nothing to do with liabilities ex contractu. 
 As regards lunacy, it is a merely frivolous technicality. However 
 it is confidently stated as law by Coke ; and we find it adopted by 
 Lord Tenterden as late a» 1827, though, as we shall immediately 
 see, it had long before that time been exploded by other judges (c).. 
 It seems at least doubtful whether it was really supported by the- 
 authorities Coke had before him. At any rate they were conflict- 
 ing, and Fitzherbert (F. N. B. 202 6) was expressly against him, 
 considering the case of an infant as analogous, Bracton, following" 
 the civil law (d), said: " Furiosus autem stipulari non potest nec- 
 
 («) Gore v. Gibson, 13 M. & W. 623, 14 L. J. Ex. 151. 
 (b) Owen v. Davies, 1 Ves. Sr. 82. (c) Brown v. Jodrell, 8 C. & P. 30. 
 
 (</) Inst. 3. 19, 8; Gai. 3. 106. For exposition of the Roman Law, see Sa- 
 vignj-, Syst. 3. 83-86 ; and op. Pothier, Obi. j$ 49-51. 
 86 
 
LUNACY AND DRUNKENNESS. 7£ 
 
 aliquod negotium agere, quia non intelligit quid agit" (fol. 100 a T 
 cf. 165 b ; and see Fleta, 3, 3. §§ 8, 10). But it is unnecessary to 
 discuss this further. 
 
 2. The next theory is to the following effect : If a man is so drunk 
 or so insane as not to know what he is about, he can not have that 
 consenting mind which is indispensable to the formation of a con- 
 tract, and his agreement is therefore merely void (a). But if his 
 mind is only so confused or weak that he can not be said not to 
 know what he is about, but yet is incapable of fully understanding 
 the terms and effect of his contract, and if this is known to the 
 other party, then he may indeed contract, but the contract will be- 
 voidable at his option, on the ground not of his own incapacity, 
 but of the other party's fraud in taking advantage of his weak- 
 ness, though such weakness be short of incapacity (b). According 
 to this the first class of cases would be reckoned with others in 
 which agreements are absolutely void *for want of real con- [7f> 
 sent (as to which see post Oh. VIII.) and the second would come 
 under the general. head of fraud. 
 
 We find the first branch of this opinion decidedly adopted in 
 common law practice in the last century and the earlier part of 
 this, no doubt by way of reaction against Coke's extravagant 
 dogmas. Lunacy was held admissible as evidence under a plea of 
 non est' factum, i.e. as showing the lunatic's act to be wholly void (e) ; 
 and the like was said of drunkenness (d). Lord Bllenborough dis- 
 tinctly laid down that when the existence of an agreement between 
 the parties was in issue, it was completely negatived by the intox- 
 ication of one party at the time of making the alleged agreement; 
 and this was approved by the Court of King's Bench (e). 
 
 The same view is to be found in the modern case of Gore v. 
 Gibson (/), where however it was not material to the decision, as 
 the drunkenness of the defendant and the plaintiff's knowledge of 
 it were specially pleaded. And both branches of the doctrine were 
 
 (a) [Berkly v. Cannon, 4 Kich. L. 136; Keinskopf v. Eogge, 37 Ind. 207; 
 Burkes. Allen, 9 Post. 106; Caulkins u. Fry, 35 Conn. 170. And see Dexter 
 v. Hall, 15 Wall. 9, where it was held that a power of attorney executed by a 
 lunatic is absolutely void.] 
 
 (Sj [Miller v. Pinley, 26 Mich. 249; Caulkins v. Pry, 35 Conn. 170; Wilson 
 v. Oldham, 12 B. Mon. 55 ; Birdsong v. Birdsong, 2 Head, 289.] 
 
 (e) Yates v. Boen, 2 Str. 1104. 
 
 (d) Buller, N. P. 172. [See Jenners v. Howard, 6 Blackf. 240.] 
 
 (e) Pitt v. Smith, 3 Camp. 33. (/) 13 M. & W. 623, 14 L. J. Ex. 151. 
 
 87 
 
80 CHAP. II. CAPACITY OF PARTIES. 
 
 recognized in equity and are very completely stated in a judgment 
 of Sir W. Grant (a). 
 
 " I think a Court of Equity ought not to assist a person to get rid of 
 any agreement or deed merely upon the ground of his having been intox- 
 icated at the time : 1 say merely upon that ground ; as if there was . . any 
 unfair advantage made of his situation or . . any contrivance or manage- 
 ment to draw him into drink, he might be a proper object of relief in a 
 ■Court of Equity. As to that extreme state of intoxication that deprives 
 a man of his reason, 1 apprehend that even at law it would invalidate a 
 deed obtained from him while in that condition." 
 
 He also said that a Court of Equity ought not to assist a person 
 who has obtained an agreement from another in a state of intoxi- 
 cation ; but this is a mere dictum, and if it means that intoxication 
 not such as to prevent the party from understanding the effect of 
 bis contract is of itself a sufficient ground for refusing specific per- 
 formance, it is distinctly contradicted by later decisions (b). 
 80] *This doctrine is quite intelligible, and in principle there is 
 nothing to be said against it. But the distinction between inability 
 to understand so much as the nature of a transaction (which would 
 make it wholly void) and inability to form a free and rational 
 judgment, of its effect (which if known to the other party would 
 make it only voidable) is too fine and doubtful to be convenient in 
 practice. The confusion of mind generally produced by drunken- 
 ness is exquisitely described by Chaucer in the Knight's Tale : 
 
 " A dronke man wot well he hath an hous, 
 But he not [i.e., ne wot] which the righte way is thider." 
 Whether in any particular case a state Of consciousness of this kind 
 does or does not amount to absolute deprivation of a consenting 
 mind for the purposes of contract is a question which it would be 
 probably impracticable, and certainly undesirable, for a court of 
 justice to enter upon. The same considerations apply with almost 
 or quite the same force to the capacity of a lunatic. 
 
 The reason why this inconvenience so long escaped notice ap- 
 pears to be that in the greater number of cases it is not necessary 
 
 (a) Cooke v. Clay worth, 8 Ves. 12, 15. The references to earlier cases are 
 purposely omitted. 
 
 (b) Lightfoot v. Heron, 3 Y. & C. Ex. 586; Shaw o. Thuckray, 1 Sm. & G. 
 537 (but with some hesitation, on the ground that the real defendant was not 
 the vendor, but a subsequent purchaser). [Eeinicker v. Smith, 2 Harr. & J. 
 421; Rodmans. Zilley, Saxton's Ch. 320; Pittenger's Adm'r v. Pittenger, 2 
 Green's Ch. 156.] 
 
CONTRACT OF LUNATIC, ETC., ONLY VOIDABLE. 81 
 
 to decide whether the agreement was originally void or only- 
 voidable. 
 
 3. The third opinion, which has now prevailed, is that the con- 
 tract of a lunatic or drunken man who by reason of lunacy or 
 drunkenness is not capable of understanding its terms or forming 
 a rational judgment of its effect on his interests is not void but 
 only voidable at his option ; and this only if his state is known to 
 the other party. The way was prepared for this by decisions es- 
 tablishing, in the case of executed contracts, an exception to the 
 supposed rule of absolute nullity, which exception may be stated 
 -as follows : 
 
 When a contract has been entered into in good faith with a per- 
 son who appears and is believed to be of sound mind, but who is 
 in fact of unsound mind, and the contract has been performed so 
 that the parties can not be replaced in their original position, it 
 •can not be set aside by the person of unsound mind or his repre- 
 sentatives. 
 
 This principle was long ago acted upon in equity, but without 
 *any decision as to the validity of the contract in law (a) : the [81 
 judgment which fully settled it was that of the Exchequer Chamber 
 in Molton v. Camroux (b). The action was brought by adminis- 
 trators to recover the money paid by the intestate to an assurance 
 and annuity society as the price of two annuities determinable 
 with his life. The intestate was of unsound mind at the date of 
 the purchase, but the transactions were fair and in the ordinary 
 -course of business, and his insanity was not known to the society. 
 It was held that the money could not be recovered; the rule being 
 laid down in the Exchequer Chamber more positively, than in the 
 Court below, and in these terms : "The modern cases show that 
 -when that state of mind [lunacy or drunkenness, even if such as 
 to prevent a man from knowing what he is about] was unknown 
 -to the other contracting party, and no advantage was taken of the 
 lunatic [or drunken man], the defense can not prevail, especially 
 -where the contract is not merely executory but executed in the 
 whole or in part, and the parties can not be restored altogether to 
 their original positions." 
 
 The context shows that the statement was considered equally 
 applicable to lunacy and drunkenness, and the law thus stated in- 
 
 fo) Niell v. Morley, 9 Ves. 478. 
 
 (b) 2 Ex. 487, 4 Ex. 17; 18 L. J. Ex. 68, 356. 
 
 89 
 
82 CHAP. II. CAPACITY OF PARTIES. 
 
 volves, though it does not expressly enounce, the proposition that 
 the contract of a lunatic or drunken man is not void but at most 
 voidable. The general rules as to the rescission of a voidable con- 
 tract are then applicable, and among others the rule that it must 
 be rescinded, if at all, before it has been executed, so that the 
 former state of things ca'n not be restored : which is the point ac- 
 tually decided. The decision itself has been fully accepted ;md 
 acted on both at law (a) and in equity (p), though the merely vol- 
 untary acts of a lunatic, e.g., a voluntary disentailing deed (a class 
 of acts with which we are not here concerned) remain invalid (c). 
 It was also observed that the decision had an important bearing 
 on the general question whether " a conveyance executed [or a 
 contract made] by a lunatic is absolutely void in the absence of 
 notice or fraud" (d). However the complete judicial interpreta- 
 82] tion of the result of Molton v. Camroux *was not given till 
 the recent case of Matthews v. Baxter (e). The declaration was 
 for breach of contract in not completing a purchase : plea, that at 
 the time of making the alleged contract the defendant was so 
 drunk as to be incapable of transacting business or knowing what 
 he was about, as the plaintiff well knew : replication, that after the 
 defendant became sober and able to transact business he ratified 
 and confirmed the contract. As a merety void agreement can not 
 be ratified, this neatly raised the question whether the contract 
 were void or only voidable : the Court held unanimously (one- 
 member of it expressly on the authority of Molton v. Camroux)- 
 that it was only voidable, and the replication therefore good. 
 
 The special doctrine of courts of equity with regard to partner- 
 ship (which is a continuing contract) is quite in accordance with 
 this : it has long been established that the insanity of a partner 
 does not of itself operate as a dissolution^of the partnership, but 
 is only a ground for dissolution by the Court (f). 
 
 The law seems, then, on the whole, to be now settled to the fol- 
 
 («) Beavan v. McDonnell, 9 Ex. 309, 23 L. J. Ex. 94. 
 
 (b) Price v. Berrington, 3 Mac. & G. 486, 495, revg. s. c. 7 Ha. 394; Elliott. 
 v. Ince, 7 D. M. G. 475, 488. 
 
 (c) Elliott v. Jnce, sup. (d) 3 Mac. & G. at p. 498. 
 (e) L. R, 8 Ex. 132. 
 
 ( /) Lindley, 1. 235. [But an inquest of lunacy found against one of the- 
 members of a partnership dissolves it ipso facto; Isler v. Baker, 6 Humph. 
 85 ; Story on Partnership, \ 295.] 
 90 
 
CONTRACT OF LUNATIC, ETC., ONLY VOIDABLE. 8& 
 
 lowing effect : A contract made by a person who is drunk or of un- 
 sound mind, so as to bo incapable of understanding its effect, is 
 voidable at that person's option, unless the other contracting party 
 did not believe and had not reasonable cause to believe that he 
 was drunk or of unsound mind (a). 
 
 It is unnecessary to express the point actually decided in Molton v. 
 Camtoux, for that, as we have said, follows on general principles from the- 
 contract being only voidable. The express mention of reasonble cause 
 for believing the party to be incapable may perhaps be in strictness also 
 superfluous, as the existence of reasonable grounds of knowledge is in.' 
 such a case very strong evidence of actual knowledge (b). 
 
 The Indian Contract Act treats these cases somewhat differently, 
 making the agreement void (s. 12) : 
 
 "A person is said to be of sound mind for the purpose of making a 
 contract if, at the time when he makes it, he is capable of understanding 
 it, and of forming a rational judgment as to its effect upon his interests. 
 *A person who is usually of unsound mind, but occasionally of [83 
 sound mind, may make a contract when he is of sound mind. 
 
 A person who is usually of sound mind, but occasionally of unsound. 
 mind, may not make a contract when he is of unsound mind. 
 
 (a) [American authority does not go so far. A contract made by one who- 
 is drunk or of unsound mind, so as to be incapable of understanding its effect, 
 while not void, is generally voidable at his option. Joest v. "Williams, 42 Ind.- 
 565;- Musselman v. Cravens, 47 Ind. 1; Seaver v. Phelps, 11 Pick. 304; Ingra- 
 ham v. Baldwin, 9 N. T. 45 ; Broadwater v. Darne, 10 Mo. 277 ; Mansfield v. 
 Watson, 2 la. Ill ; Allen v. Berryhill, 27 la. 534; Van Patten v. Beals, 46 la. 
 62. And see infra, p. 406. 
 
 In the absence of fraud, mere drunkenness, or lack of mental capacity, is not 
 enough, unless it be so great as to render the person incapable of understand- 
 ing the effect of the transaction. Bates v. Ball, 72 111. 108 ; Johns v. Pritchey, 
 39 Md. 258 ; Harbison v. Lemon, 3 Blackf. 51. 
 
 But where he contracts with one who is ignorant of his condition, if the con- 
 tract be fair, and has been executed, or so far executed that the parties can riot 
 be put in statu quo, it will be treated as binding. Matthieson, etc. Co., v. MeMa- 
 hon's Adm'r, 38 N. J. L. 537 ; Wilder v. Weakley's Est., 34 Ind. 181 ; Simms 
 ■a. McLure, 8 Eich. Eq. 286; Young v. Stevens, 48 N. H. 133; Beals v. See, 10- 
 Pa. St. 56 ; Behrens v. McKenzie, 23 la. 333 ; Ashcraft v. De Armond, 44 la. 
 229 ; Yauger v. Skinner, 1 McCarter, 389 ; Busk v. Fenton, 14 Bush, 490. 
 
 Insanity of the maker was held no defense to a note in the hands of a bona 
 fide holder in Bank v. Moore, 78 Pa. St. 407 ; Snyder v. Laubach, Sup. Ct. Pa. 
 9 0. L. J. 406. And see Bank v. McCoy, 69 Pa. St. 204; Miller v. Finley, 26- 
 Mich. 249;. Caulkins v. Fry. 35 Conn. 170'.] 
 
 (b)' [Matthieson, etc., Co. v. McMahon's Adm'r, 38 N. J. L. 537, 544; Lin- 
 coln v. Buckmaster, 32 Vt. 652.] 
 
 91 
 
-84 CHAP. II. CAPACITY OP PARTIES. 
 
 Illustrations. 
 
 (a) A patient in a lunatic asylum, who is at intervals of sound mind, 
 -may contract during those intervals. 
 
 (b) A. sane man, who is delirious from fever, or who is so drunk that 
 " he can not understand the terms of a contract or form a rational judgr 
 
 merit as to its effect on his interests, can not contract whilst such delirium 
 or drunkenness lasts." 
 
 This, however, must be read in connexion with s. 65: 
 
 " "When an agreement is discovered to be void, or when a contract be- 
 comes void, any person who has received any advantage under such 
 . agreement or contract is bound to restore it or to make compensation for 
 it to the person from whom he received it." 
 
 This is, on the whole, simpler than the English law settled by Molton 
 v. Camroux, and probably not less- convenient. But the authorities cor- 
 responding to the substance of s. 65, are with us in a state very far re- 
 • moved from its clearness and simplicity, being mostly disguised in the 
 form of exceptions to a technical and now obsolete rule of pleading (a) ; 
 so that the adoption by our courts of rules corresponding to those of s. 
 12 might have failed by itself to lead to satisfactory results. 
 
 The possibility of hardship to persons who have dealt in good faith with 
 
 a lunatic who was apparently sane, is, it would seem, disregarded by the 
 
 Indian Act as being in practice exceedingly small; and the liability of a 
 
 lunatic to pay for necessaries is laid down in the chapter "Of certain Ee- 
 
 Ilations resembling those created by Contract," s. 68. 
 
 Part 2. Of Artificial Persons. 
 In a complex state of civilization, such as that of the Roman 
 Empire, or still more of the modern progressive peoples, it con- 
 stantly happens that legal transactions have to be undertaken, 
 rights acquired and exercised, and duties incurred 
 
 (a) By a succession of sole or joint holders of an office of a 
 ■public nature involving the tenure and administration of property 
 for public purposes : 
 
 (/?) By or on behalf of a number of persons who are for the 
 time being interested in carrying out a common enterprise or ob- 
 84] ject. *Such enterprise or object may or may not further in- 
 volve purposes and interest's of a public nature. The rights and 
 duties thus created as against the world at large are in truth and 
 ssubstance wholly distinct from the rights and duties of the par- 
 ticular persons immediately concerned in the transactions. Those 
 jpersons deal with interests beyond their own, though in many 
 
 (a) See notes to Cutter v. Powell, in 2 Sm. L. C. 
 92 
 
ARTIFICIAL PERSONS. 84- 
 
 cases including or involving them, and it is not to their personal 
 responsibility that third parties dealing with them are accustomed . 
 to look. 
 
 This distinction (the substantial character of which it is im- 
 portant to bear in mind) is conveniently expressed in form by the 
 .Roman invention, adopted and largely developed in modern sys- 
 tems of law, of constituting the official character of the holders for- 
 the time being of the same office, or the common interest of the- 
 persons who for the time being are adventurers in the same under- 
 taking, into an artificial person (a) or ideal subject of legal capaci- 
 ties and duties. If it is allowable to illustrate one fiction by 
 another, we may say that the artificial person is a fictitious sub- 
 stance conceived as supporting legal attributes. It would not be 
 very difficult to show, were it not a matter of metaphysical rather 
 than of legal interest, that what we call the artificial identity of a 
 corporation is within its own sphere and for its own purposes just 
 as real as any other identity (b). This creature of the law be- 
 comes, within the limits assigned to its existence, " a body distinct ■ 
 from. the members composing it, and having rights and obliga- 
 tions distinct from those of its members" (c). Note, however, that- 
 this kind of fiction is not confined to legal usage or legal purposes. 
 In the case of an ordinary partnership the firm is treated by mer- 
 cantile usage as an artificial person, but is not recognized as such 
 by the law (c) ; and other voluntary and unincorporatad associa- 
 
 (a) Ft. corps or Hre moral, personne morale (but this does not necessarily im- 
 port capacity to sue or be sued in a corporate name) ; Qeim.juristische Person. 
 
 (A) In the United States a corporation duly created by the laws of any state 
 is treated as a person dwelling in, and therefore a citizen of that state, within 
 the meaning of the constitutional provision which enables the Federal courts - 
 to entertain suits between citizens of different states. See Marshall v. Balti- 
 more and Ohio Kailr. Co., 16 Howard, 314 ; [Cowles v. Mercer County, 7 "Wall.. 
 118; Eailroad Co. v. Harris, 12 Wall. 65, 81-2; Eailway Co. u. "Whitton, 13 
 "Wall. 270]. 
 
 (c) Linclley, 1. 213. [It is " too familiar to every body to require being form- 
 ally stated and explained that a corporation is a person in law distinct from all 
 the members composing it; " per Shaw, C. J., in Bank v. Morton, 4 Gray, 156, 
 159. A deed of lands belonging to a corporation, executed by all the mem- 
 bers, does not pass the title of the corporation. "Wheelock v. Moulton, 15 Vt. 
 519. And the covenant of all the members that the corporation will do a cer- 
 tain thing is not binding as the covenant of the corporation. Tileston v. New- 
 ell, 13 Mass. 406; Peabody v. Flint, 6 Allen, 52, 55.] The name of the firm.:, 
 may now be used in pleadings, but the complete recognition of the firm as am 
 artificial person, involves much more than this. 
 
 93 
 
:85 CHAP. II. CAPACITY OF PARTIES. 
 
 tions are constantly treated as artificial persons in the language 
 and transactions of every-day life. An even more remarkable 
 •'85] ^instance ib furnished by the artificial personality which is 
 ascribed to the public journals by literary custom or etiquette, and 
 is so familiar in writing and conversation that its curiosity most 
 •commonly escapes attention. But with these artificial persons by 
 private convention, if we may so call them, we are not further con- 
 cerned. 
 
 The only artificial persons which in England [and in the United 
 •States] have a legal existence fall under one of the descriptions we 
 have marked (a) and (/?) and are known as corporations (a). These 
 are either sole, i.e., of which there is only one member at a time ; or 
 aggregate, i.e., of which there are several members. The principal 
 instances of corporations sole are ecclesiastical, persons (6) of late 
 years the holders of divers public offices have been made corpora- 
 tions sole by statute (c). The Sovereign is also said to be a cor- 
 poration sole, but sui generis (d). In the case of a corporation sole 
 the power of administering the corporate property and binding the 
 corporate funds is for the most part not left to him alone, but be- 
 longs wholly or in part to a corporation aggregate of , which the 
 corporation sole is one member, or to some other body ; or is 
 guarded by statutory precautions. And it seems that a corpora- 
 tion sole can not enter into a contract (except with statutory au- 
 thority, or as incidental to an interest in land) in his corporate ca- 
 pacity; at any rate the right of action on a contract made with 
 him can not pass to his successor, but only to his executors, unless 
 
 (a) The Roman law shows that other kinds of artificial persons are at least 
 • conceivable: e.p. the kttreditas jacens, to which, however, Savigny denies that 
 this character really belonged. Syst., \ 102 (3. 363-373). And see p. 69, supra, 
 as to our own Separate Estate. Savigny restricts the use of the term corpora- 
 tion so as to exclude charitable foundations: op. cit. 243-4. The difficulty set 
 forth in his note arises simply from the absence in Roman law of any term of 
 ;art co-extensive with our Trust: not having at hand the conception of a cor- 
 poration as trustee, he supposes the artificial person in such cases to be not the 
 incorporated governing body, but the object of the charitable foundation itself. 
 
 (bj [See e.g. Terrett v. Taylor, 9 Cr. 43; Brunswick v. Dunning, 7 Mass. 
 445 ; Weston v. Hunt, 2 Mass. 500 ; Overseers v. Sear, 22 Pick. 122, 125-126.] 
 
 (c) Such are the Official Trustees of Charity Land, the Secretary of State 
 for India, the Solicitor to the Treasury (39 & 40 Vict., c. 18). 
 
 (d) [The Governor of a State has been held to be a corporation sole. The 
 -Governor v. Allen, 8 Humph. 176.] 
 
 94 
 
CORPORATIONS. 86 
 
 by special custom (a) ; there is such a custom (for a limited 
 ^purpose) in the case of the Chamberlain of the city of London [86 
 (b). But, in short, no principles of general application or interest 
 are to bo found in' this quarter, and we may practically confine our 
 attention to corporations aggregate. 
 
 So far as regards these, the classification indicated above by the 
 letters («) and (/}) corresponds in a general way to the division of 
 them into non-trading and trading, which we shall see is of great 
 importance as to the form of corporate contracts : the class (j9) is 
 further sub-divided according as to the purposes of the corporation 
 are or are not of a public character, and this sub-division is like- 
 wise of great importance as touching the matter and extent of cor- 
 porate contracts. 
 
 We have to ascertain (1) what contracts corporate bodies can 
 make and (2) how they are to be made. The second of these ques- 
 tions is reserved for the following chapter on the Form of Con- 
 tracts. 
 
 The first can not be adequately treated except in connection with 
 a wider view of the capacities, powers, and liabilities of corpora- 
 tions in general : and it will therefore be expedient if not abso- 
 lutely necessary to introduce considerations, and refer to doctrines, 
 -which might at first sight seem irrelevant. 
 
 The capacities of corporations are limited 
 
 (i) by natural possibility, i.e., by the fact that they are artificial 
 and not natural persons : 
 
 (ii) By legal possibility, i.e., by the restrictions which the power 
 creating a corporation may impose on the legal existence and ac- 
 tion of its creature. 
 
 First, of the limits set to the powers and liabilities of corpora- 
 tions by the mere fact that they are not natural persons. The re- 
 quirement of a common seal (of which elsewhere) is sometimes said 
 to spring from the artificial nature of a corporation. The fact that 
 
 (n) Generally, " bishops, deans, parsons, vicars, and the like, can not take 
 obligation to them and their successors, but it will go to the executors." Arun- 
 del's ca., Hob. 64; ace. Howley v. Knight, 14 Q. B. 240; the case in the Year 
 Book referred to by the reporters (at p. 244; P. 20, E. 4, 2, pi. 7), shows the 
 rule and its antiquity very plainly; so Go. Lit. 466 "regularly no chattel can 
 go in succession in a case of a sole corporation. [See Overseers v. Sear, 22 
 Pick. 122, 126. ] It was otherwise in the case of the head of a religious house, 
 as he could not make a will. Ko. Ab. 1. 515. And see Grant on Corporations, 
 •629, 633, sqq. 
 
 (b ) Bacon Ab. 2. 582; Customs of London, B; Howley v. Knight, supra. 
 
 95 
 
«7 CHAP. II. CAPACITY OP PARTIES. 
 
 it is not known in Scotland is however enough to show that it- 
 is a mere positive rule of English law. The correct and compre- 
 hensive proposition is that a corporation can do no act except by 
 an agent (for even if all the members concur they" are but agents) ; 
 and it follows that it can not do or be answerable for any thing of 
 87] a strictly personal nature. It can not commit a *crime in the 
 strict sense, such as treason, felony, perjury, or offenses against the 
 person (a) ; though any or all of the members or officers of a cor- 
 poration who should commit acts of this kind (e. g., should levy war 
 against the Queen) under color of the corporate name and authority 
 would be individually liable to the ordinary consequences. Nor 
 can it enter into any strictly personal contract or relation (a). On 
 the other hand, though able to act only by an agent, it is subject 
 to the same liabilities as any other employer for the acts of its- 
 agents done in the course of their employment, and is therefore 
 liable ex delicto for damage resulting from their negligence in the 
 course of such employment, and also must answer for any thing- 
 done by them which, though positively wrongful in itself under its 
 particular circumstances, belongs to a class of acts which is author- 
 ized and within the scope of their business (6). And notwithstand- 
 ing the apparent contradiction of imputing a fraudulent intention 
 to a corporate body, it may be made liable in an action of deceit- 
 for the fraud of its agent committed in the course of the corpora- 
 tion's affairs (c). And the same princij)le is extended to make it- 
 
 (a) Eeg. v. G. N. of Eng. By. Co., 9 Q. B. 315, 326: nor, it is said, can it be- 
 excommunicated, for it has no soul : 10 Co. Kep. 326. So it can not do hom- 
 age : Co. Lit. 666. Nor can it be subject to the jurisdiction of a customary 
 court whose process is exclusively personal : London Joint Stock Bank v. Mayor - 
 of London, 1 C. P. D.l. We are not aware that any English writer has thought- 
 it necessary to state in terms that a corporation can not be married or have any 
 next of kin. The statement is to be found in Savigny, Syst. 3. 239 ; but is in 
 part not quite so odd as it looks, as in Eoman law patria potestas and all the-= 
 family relations arising therefrom might be acquired by Adoption. 
 
 (b). It is unnecessary to enter at large upon the cases on this head, of which, 
 there are a great number: among the latest are Bayley v. Manchester, etc., Ky.. 
 Co., L. E. 7 C. P. 415, 8 C. P. 148 ; Moo.re v. Metrop. Ey. Co., L. K. 8 Q. B. 36 ; 
 Bolingbroke v. Swindon Local Board, L. E. 9 C. P. 575. 
 
 (e) Barwick v. Eng. Joint Stock Bank, L. E. 2 Ex. 259: notwithstanding' 
 dicta to the contrary in Western Bank of Scotland v. Addie, L. E. 1 Sc. & D- 
 145, see the later case of Mackay v. Commercial Bank of New Brunswick, L. 
 E. 5 C. P. 394. [And see Peebles v. Patapsco Guano Co., 77 N. C. 233 ; Lamm* 
 v. Port Deposit Homestead Ass'n, 49 Md. 233 ; Butler v. Watkins, 13 Wall. 456 - r 
 96 
 
CORPORATIONS : LIABILITIES FOR WRONGS. 88' 
 
 generally subject to all liabilities incidental to its corporate exis- 
 tence and acts, though the remedy may be in form ex delicto or even' 
 criminal (a). Although it can not commit a real crime, ■'' it maybe 
 guilty as a body corporate of commanding acts to be done to the 
 nuisance of the community at large " and *may be indicted [88- 
 for a nuisance produced by the execution of its works or conduct 
 of its business in an improper or unauthorized manner, as for ob- 
 structing a highway or navigable river (b). A corporation may 
 even bo liable by prescription, or by having accepted such an obli- 
 gation in its charter, to repair highways, etc., and may be indict- 
 able for not doing it (c). Likewise it may be convicted and fined 
 under a -penal statute regulating the trade carried on by it (d). 
 
 Scofield, etc., Co. v. State, 54 Ga. 635 ; Houldsworth v. Bank, 5 App. Ca, 
 317; infra, pp. 502-503.] Savigny's statement that a corporation can not com- 
 mit a "true delict" (3. 317) is so qualified as perhaps not to be inconsistent, 
 with the English doctrine: however such questions as have arisen in recent 
 times on the dealings of commercial corporations were obviously not present 
 to his mind. 
 
 (a) [Merchants' Bank v. State Bank, 10 "Wall. 605, 645 ; Bailroad Co. v. 
 Quigley, 21 How. 202 ; Brokaw v. Railroad Co., 32 N. J. L. 328 ; Vance v. Rail- 
 road Co., 32 N. J, L. 334; Ramsden v. Railroad Co., 104 Mass. 117 ; Maynard 
 ■o. "Insurance Co., 34 Cal. ,48; Railroad Co. v. Dalby, 19 111. 353; Goodspeed 
 v. Bank, 22 Conn. 530; Copley v. Grover S. M. Co., 2 Woods, 494; Carter v. 
 How Machine Co., Md. Ct. App. 7 Rep. 621 ; "Wheless v. Bank, 1 Baxter, 469 ; 
 Yinar v. Ins. Co., 27 La. Ann. 367 ; Bank v. Owston, 4 App. Cas. 270, 282. 
 
 Corporations are liable in exemplary damages for malicious or oppressive? 
 acts, and acts of wanton recklessness. Railroad Co. v. Dunn, 19 O. S. 162; 
 Goddard v. Railroad Co., 57 Me. 202 ; Hays v. Railroad Co., 46 Tex. 272; Rail- 
 road Co. o. Burke, 53 Miss. 200 ; Railroad Co. v. Blocher, 27 Md. 277 ; Railroad 
 Go. v. Rogers, .38 Ind. 116 ; Caldwell v. Steamboat Co., 47 N. Y. 282.] 
 
 (b) Reg. v. G. N. of Eng. Ry. Co., 9 Q. B. 3^5; per Cur. p. 326; [State v. 
 Railroad Co., 27 Vt. 103 ; Commonwealth v. Railroad Co., 4 Gray, 22 ; Railroad 
 Co. v. State, 3 Head. 523 ; State v. Railroad Co., 3 Zabr. 360; Delaware, etc., 
 Co. v. Commonwealth, 60 Pa. St. 367. Contra, State v. Cincinnati Fertilizer 
 Co., 24 O. S. 611 ; State v. Railroad Co., 23 Ind. 302 ; State v. G. W., etc., M'f'g. 
 Co., 20 Me. 41. 
 
 A corporation may be indicted for Sabbath-breaking. State v. Railroad Co., 
 15 W. Va. 362.] 
 
 (c) See Grant on Corporations, 277, 283 ; Angell & Ames on Corporations, 
 H Hf*i— 7 ; Wms. Saund. 1. 614, 2. 473; [Susquehanna, etc., Co. o. People, 15 
 
 Wend. 267; State v. Murfreesboro, 11 Humph. 217; Railroad Co. v. State, 32 
 N. H. 215; Commonwealth v. Central Bridge Co., 12 Cush. 242.] 
 
 (d) The contrary was not suggested in Aerated Bread Co. v. Gregg, L. R. 8 
 
 ,.;l,- 97 ' 
 
89 CHAP. II. CAPACIT? OP PARTIES. 
 
 However a Bteamship company has been, hold in equity to be not 
 indictable under the Foreign Enlistment Act of Geo. 3, and there- 
 fore not entitled to refuse discovery, which in the case of a natural 
 person would have exposed him to penalties under the Act (a) ; but 
 the decision seems mostly grounded on the language of the particu- 
 lar statute. As to the difficulty of imputing fraudulent intention 
 to a corporation, which has been thought to be peculiarly great, 
 it may be remarked that no one has ever doubted that a corpora- 
 tion may be relieved against fraud to the same extent as a natural 
 person. There is exactly the same difficulty in supposing a cor- 
 poration to be deceived as in supposing it to deceive, and it is 
 ■equally necessary for the purpose of doing justice in both -cases to 
 impute to the corporation a certain mental condition — of intention 
 to produce a belief in the one case, of belief produced in the other — 
 which in fact can exist only in the individual mind of the person 
 ■who is its agent in the transaction. Lord Langdale found no diffi- 
 culty in speaking of two railway companies as "guilty of fraud and 
 collusion " though not in an exact sense (b). However the mem- 
 bers of a corporation can not even by giving an express authority 
 in the name of the corporation make it responsible, or escape from 
 being individually responsible themselves, for a wrongful act (as 
 trespass in removing an obstruction of an alleged highway) which 
 though not a personal wrong is of a class wholly beyond the com- 
 petence of the corporation, so that if lawful it could not have been 
 •89] a ^corporate act (c). Likewise it is not competent to the gov- 
 erning body or the majority, or even to the whole of the members 
 of a corporation for the time being, to appropriate any part of the 
 ■corporate funds to their private use (unless in some manner dis- 
 tinctly warranted by the constitution) ; for it is not to be supposed 
 that all the members of the corporation are equivalent to the cor- 
 poration, so that they can do as they please with corporate prop- 
 erty (d). Lord Langdale held on this principle that the original 
 
 <j. B. 355, where such a conviction was affirmed on the construction of the stat- 
 ute. 
 
 (a.) King of Two Sicilies v. Wilcox, 1 Sim. N. S. 335. 
 
 (b) 12Benv. 382. 
 
 (c) Mill v. Hawker, L. K. 9 Ex. 309 ; no judgment on this part of the case 
 in Ex. Ch. L. K. 10 Ex. 92. 
 
 (d) [" The directors of a corporation, even with the consent of the stock, 
 holders, are not authorized to discontinue the corporate business and to dis- 
 tribute, the capital stock among the stockholders, unless they are specially au- 
 
 98 
 
CORPORATION DISTINCT FROM ITS MEMBERS. 90 
 
 ■members of a society incorporated by charter, who had bought up 
 the shares of the society by agreement among themselves, were 
 bound to account to the society for the full value of them (a). The 
 fallacy of the opposite assumption {viz. that a corporation has no 
 rights as against its unanimous members) is easily exposed by put- 
 ting the extreme case of the members of a corporation being by 
 accident reduced till there is only one left, who thereupon unani- 
 mously appropriates the whole corporate propertj' to his own use. 
 It is, perhaps, worth while to observe that writers on the civil law 
 have laid down the powers of majorities in corporate affairs with 
 an extraordinary latitude, assigning unlimited authority to the 
 majority of a properly convened meeting in most cases, and to the 
 whole body of existing members in any case. But Savigny has 
 shown this to be not only false in principle but unwarranted by 
 the Roman law, the authorities relied on being in truth special 
 provisions for the government of municipal corporations which 
 were never intended to be of unlimited application (6). His ex- 
 position is interesting for the clearness with which he enforces the 
 fundamental proposition that a corporation is not identical with 
 the sum of its existing members, but otherwise it throws little if 
 any light on the problems arising from the modern development 
 and multiplication of corporate bodies in the English and allied 
 systems of law. 
 
 It is further to be observed that such cases as those last men- 
 tioned have but a slight and perhaps a misleading likeness to those 
 wbere we have to determine the rights of strangers *against [90 
 the corporation arising out of contract or dispositions of property. 
 In Society of Practical Knowledge v. Abbott (c) the principle is 
 that, quite apart from the nature of its particular objects, a cor- 
 poration does not exist for the sake of the persons who are the 
 members at any one time, as is also shown by the rule of common 
 law that they have no power of their own mere will to dissolve it. 
 No corporate property can be treated as the property of the mem- 
 
 thorized to do so by a legislative act, or by a decree of the court of chancery 
 -dissolving the corporation in the manner prescribed by the statutes." Ward v. 
 Insurance Co., 7 Paige, 294.] 
 
 (a) Society of Practical Knowledge v. Abbott, 2 Beav. 559, 567. Cp. Sav. 
 -Syst. 3. 283, 335. 
 
 (b) Sav. Syst. 3. 329 sqq. §£ 97-99. The illustration in our text is given at p. 
 550, note, with the remark, " Hier ist gewiss Einstimmigkeit vorhanden." 
 
 (c) 2 Beav. 559. 
 
 99 
 
91 CEAP. II. CAPACITY OP PARTIES. 
 
 bers, or divisible among them, unless there appears from the na- 
 ture and constitution of the corporation an intention that it shalb 
 be so treated. In Mill v. Hawker (a), again, the removal of an 
 obstruction to a highway is a thing which by its nature can not be 
 a corporate act at common law. The common law right is founded 
 on the use of the highway by the person removing the obstruc- 
 tion, but a corporation can not use a highway. JSFo doubt a cor- 
 poration might have a statutory power or be under a statutory 
 duty to remove obstructions, and the true question in the case was 
 whether any such power or duty had been conferred On highway 
 boards. The majority of the court held that it had not. But i-f 
 such had been the case, the right so conferred would still have 
 been wholly distinct from the right of a natural person at common 
 law to remove things which obstruct his lawful use of a high- 
 way (6). 
 
 We now come to consider the far more difficult and complicated • 
 question of special restrictions. The importance of this subject is 
 quite modern ; it arose from the general establishment of railway 
 companies and others of a like nature incorporated by special 
 Acts of Parliament, and has been continued and increased by the 
 multiplication of joint stock companies, building societies, etc., 
 which are incorporated or made " quasi-corporations " under gen- 
 eral Acts. On this there have been many decisions, much dis- 
 cussion, and some real conflict of judicial opinions. There are 
 two opposite views by which the consideration of the matter may 
 be governed, and they may be expressed thus : 
 
 1. A corporation is an artificial creature of the law, and has no 
 existence except for the purposes for which it was created. 
 91] *No act exceeding the limits of those purposes can be the act 
 of the corporation, and no one can be authorized to bind the cor- 
 poration to such an act. In each particular case, therefore, the 
 question is : Was the corporation empowered to bind itself to this- 
 transaction ? 
 
 2. A corporation once duly constituted has all such powers and 
 capacities of a natural person as in the nature of things can be ex- 
 ercised by an artificial person. Transactions entered into with 
 apparent authority in the name of the corporation are presumably 
 
 (a) L. 11. 9 Ex. 309 ; see at p. 318. 
 
 (b) On the nature of corporate action in general, cp. Hobbes, Behemoth, part- 
 4. ad init. (6. 359, ed. Molesworth), and Leviathan, pt. 1. c. 16; and on its arti- 
 ficial character, Maine, Early History of Institutions, 352. 
 
 100 
 
CONFLICTING THEORIES OF CORPORATE POWERS. 92 
 
 ■valid and binding, and are invalid only if it can be shown that the 
 legislature has expressly or by necessary implication deprived the 
 
 -corporation of the power it naturally would have had of entering 
 into them. The question is therefore : Was the corporation for- 
 bidden to bind itself to this transaction ? 
 
 A.s Mr. Justice Lindley puts it (a), the difference is ',' as to 
 whether'the act of incorporation is to be regarded as conferring 
 unlimited powers except where the contrary can be shown ; or 
 whether alleged corporate powers are not rather to be denied unless 
 they can be shown to have been conferred either expressly or by 
 necessary implication." 
 
 As we shall often have to refer to these views, we may call (1) 
 the doctrine of special capacities and (2) the doctrine of general 
 
 ■capacity. 
 
 There is much to be said on principle for the theory of special 
 
 -capacities. Most if not all corporations are established for tolerably 
 well defined purposes, which persons dealing with them can ascer- 
 tain without difficulty. They are certainly not intended to do any 
 thing substantially beyond those purposes, and a reasonable and 
 liberal construction of their powers may be trusted to prevent the 
 application of the doctrine from causing any real hardship (p). 
 This theory was the prevalent one in the earlier period of the dis- 
 cussion. For a while the common law courts took it without 
 question from the courts of equity, where for particular reasons to 
 be mentioned afterwards it appeared in a somewhat more positive 
 form and was maintained for a longer *time. It is adopted [92 
 by some of the best English writers (c), and in America, Kent 
 
 ■stated it (long before the subject had attained its present develop- 
 ment in England) as the modern and even as the obvious doc- 
 trine (d). It also seems to have been taken for granted by those 
 who framed the modern statutes defining the powers of incorpor- 
 
 (o) 1.265. - , 
 
 (b) See judgment of Coleridge, J. Mayor of Norwich v. Norfolk By. Co., 4 
 E. & B. 397; 2i L. J. Q. B. 105, 119. 
 
 (c) Leake on Contracts, 258 [but see 2d ed. 581 sqq.] ; Lindley, 1. 263. 
 
 Id) Kent, Comm. 2. 298-9 (in the later editions', however, this is much quali- 
 fied by the note, at p. 278). The Supreme Court of the TJ. S. certainly seems 
 tto have so held, at all events as to corporations created by statute. Bank of 
 Augusta v. Earle, 13 Pet. 519, 587. 
 
 101 
 
93 CHAP. II. CAPACITY OF PARTIES. 
 
 ated companies (a) ; which, if the opposite view be correct, are- 
 redundant m permission and defective in prohibition. 
 
 The theory of general capacity, on the other hand, may well be 
 supported on principle as tending to call the attention of the Leg- 
 islature more distinctly to the limits it may be proposed to assign 
 to corporate powers, and ultimately to promote the general con- 
 venience by making those limits more certuin. It is also favored 
 by the general analogies of the law. There is a fallacy latent in 
 the phrase of the other theory. When we speak of an artificial: 
 person as a creature of the law, we mean its legal existence, not 
 its particular rights and capacities. If legal existence as a subject 
 of rights and duties is once admitted by a fiction, why not admit 
 its ordinary incidents so far as they are physically possible? All 
 rights are in one sense creatures of the law, and it is in a special' 
 sense by creation of the law that artificial persons exist at all : but 
 when you have got your artificial person, why call in a second, 
 special creation to account for its rights ? 
 
 This last view seems on the whole to have in its favor a pre- 
 ponderance of modern authori'ty. It is subject however to the 
 important qualification that "a statutory corporation created by 
 Act of Parliament for a particular purpose is limited as to all its 
 powers by the purposes of its incorporation as defined by that. 
 Act" (6). This makes the conflict between the two theories much 
 less sensible in practice than might at first sight be expected. The- 
 93] considerations on which the ^qualification rests are in them- 
 selves foreign to the law of corporations as such, but they are con- 
 stantly present in the modern cases and are often decisive. 
 
 These considerations are derived (1) from the law of partnership: 
 (2) from principles of public policy. 
 
 1. In trading corporations the relation of the members or share- 
 holders to one another is in fact a modified (c) contract of partner- 
 ship, which in the view of courts of equity is governed by the or- 
 dinary rules of partnership law so far as they are not excluded by 
 the constitution of the company. 
 
 («.) See L. R., 9 Ex. 266. 
 
 (6) Lord Selborne in Ashbury By. Carriage Co. v. Biohe, L. B., 7 H. L. 653, . 
 at p. 693, This is now the leading case on the subject, and, together with 
 other authorities, will be more particularly mentioned hereafter. 
 
 (c) Namely, by provisions for transfer of shares, limited liability of share- 
 holders, and other things which can not (at least with convenience or complete- 
 ness) be made incident to a partnership at common law. 
 102 
 
CORPORATE POWERS AND PARTNERSHIP LAW. 93 
 
 Now it is a well settled principle of partnership law that no ma- 
 jority of the partners can bind a dissenting minority, or even one 
 dissenting partner, to engage the firm in transactions beyond its- 
 original scope (a). In the case, therefore, of a corporation whose 
 members are as between themselves partners in the business carried 
 on by the corporation, any dissenting member is entitled to restrain 
 the governing body or the majority of the company from attempt- 
 ing to involve the company in an undertaking which does not come- 
 within its purposes as defined by its original constitution (b). 
 Courts of Equity have been naturally called upon to look at the- 
 subject chiefly from this point of view, that is, as giving rise to 
 questions between shareholders and directors, or between minor- 
 ities and majorities. Such questions do not require the court to- 
 decide whether an act which dissentients ma}' prevent the agents 
 of the company from doing in its name might not nevertheless, if 
 so done by them with apparent authority, be binding on the cor- 
 porate body, or a contract so made be enforceable by the other- 
 party who had contracted in good faith. This distinction, clear 
 and important as it is, has not always been kept in sight. But fur- 
 ther, according to the law of partnership a partner can bind the- 
 firm only as its agent : his authority is prima facie an extensive one (c) 
 but if it is specially restricted by agreement between the part- 
 ners, and such restriction is known to the pereon dealing with him 
 
 (a) Lindley, I. 621 sqq; [Abbott v.' Johnson, 32 N". H. 9; Livingston v. 
 Lynch, 4 Johns. Ch. 573]. 
 
 (b) [Stevens v. Bailroad Co. 29 Vt. 545; Blacks. Canal Co., 24 N. J. Eq. 45-5 ; 
 Kean v. Johnson, 1 Stockt. 401 ; Wiswall v. Plank Road Co., 3 Jones Eq. 183 ; 
 Zabriskie v. Railroad Co., 18 ST. J: Eq. 178; March v. Railroad Co., 43 ZST. H. 
 515; Mowrey v. Railroad Co., 4 Biss. 78 ; Cherokee Iron Co. v. Jones, 52 Ga. 276. 
 
 A subscriber for stock in'a corporation is released from his subscription by a 
 subsequent fundamental alteration Of the organization or purpose of the cor- 
 poration. Katama Land Co. v. Jernegan, 126 Mass. 155; McCray v. Railroad 
 Co., 9 Ind. 358 ; Railroad Co. v. Croswell, 5 Hill, 383 ; Banet v. Railroad Co., IS 
 111. 504, 511 ; Union Locke Co. v. Towns,- 1 N. H. 44. And see Tuttle v. Kail- 
 road Co., 35 Mich. 247; Marsh v. Pulton, 10 Wall. 676 ; Railroad Co.-m. Harris, 
 27 Miss. 517. Unless at the time of subscription such change was provided for 
 by the charter itself, or the general law pf the state. East Lincpln v. Daven- 
 port, 94 IT. S. 801 ;■ Nugent v. Supervisors, 19 Wall. 241; Bish v. Johnson, 21 
 Ind. 299 ; Jewett v. Railroad Co., 34 O. S. 601.] 
 
 ■(e) Lindley, 1. 248;. per James, L. J., Baird's ea., 5 Ch. 733; Story on 
 Agency, §§ 124, 125, adopted by the Judicial Committee in Bank of Australasia 
 v. Breillat, 6 Moo. P. C. 152, 195. 
 
 103 
 
94 CHAP. II. CRPACITY OF PARTIES. " 
 
 94] be *can> not bind the ; firm to any thing beyond those special 
 limits (a). Limits of this kind may. be imposed on the directors or 
 oi.her officers of a company by its constitution; and if that consti- 
 tution is embodied in a special Act of Parliament, or in a deed of 
 settlement or articles of association registered in a public office un- 
 der the provisions of a general act, it is considered that all persons 
 dealing with the agents of the corporation must be deemed to. have 
 notice of the limits thus publicly set to thejr authority (b). The 
 corporation is accordingly not bound by any thtng done, by them 
 in its name when the transaction is on the face of it in excess of 
 the powers thus defined (c). And it is important to remember that 
 in this view the resolutions of meetings however numerous, and 
 passed by however great a majority, have of themselves no more 
 power than the proceedings of individual agents to bind the part- 
 nership against the will of any single member to transactions of a 
 kind to which he did not by the contract of partnership agree that 
 it might be bound. 
 
 Irregularities in the conduct of the internal affairs of the body 
 corporate, even the omission, of things which as between share- 
 holders and directors are conditions precedent to the exercise of the 
 directors' authority, will not however invalidate acts which on the 
 face of them are regular and authorized : third parties dealing in 
 good faith are entitled to assume that internal regulations (the ob- 
 servance of which it may be difficult or impossible for them to 
 verify) have in fact been complied with (d). 
 
 . (a) Lindley, 1. 344-9 ; [Radcliffe v. Varner, 55 Ga. 427 ; Cargill v. Corby, 15 
 Mo. 425]. ' ,' ; - 
 
 \b) [In England joint stock companies may be formed by the execution of 
 two documents, a memorandum of association, and articles of association; the 
 former is the charter of the company, the latter define the powers of the direct- 
 ors as agents of the whole body of. shareholders. Acts beyond the memoran- 
 dum are acts ultra vires the corporation ; acts of the directors beyond the arti- 
 •cles only are but acts of an agent in excess of his authority, and always capa- 
 ble of ratification. Ashbury Ey. Car. Co. v.. Eiche, L. E., 7 H* L. 653. Bee 
 5 Am. Law Eev. 272.] 
 
 (c) Lindley, 1. 266, 351. 
 
 {(I) Lindley; 1. 267, sqq: {Where the authority of the Officers of a corpora- 
 tion to bind it by their act depends upon the performance of & condition pre- 
 cedent, or the existence of an extrinsic fact, and the question of compliance with 
 the condition, or of the existence of the fact, is to be determined by them, or 
 •rests peculiarly within their knowledge, their representation (which may some- 
 time.^ consist simply in doing the act) that the condition has been complied. 
 104 
 
CORPORATE POWERS AND. PUBLIC POLICY. 95 
 
 These applications of partnership law materially cut down the 
 results of the common law theory of general capacity so far as re- 
 gards its application to almost all incorporated companies of mod- 
 ern origin. 
 
 But it is to be observed that in the ordinary law of partnership 
 there is nothing to prevent the members of a firm, if they are all so 
 minded, from extending or changing its business without limit by 
 their unanimous agreement. As a matter of pure corporation law, 
 the unanimity of the members is of little importance: it may sup- 
 ply the want of a formal act of the governing body in some cases (rt), 
 but it can in no case do more. As a ^matter of mixed [95 
 ■corporation and partnership law this unanimity may be all-im- 
 portant as being a ratification by all the partners of that which if 
 any one of them dissented would not be the act of the firm : for al- 
 though the corporate body of whicb. they are members is in many 
 respects different from an ordinary partnership, it is treated, ;und 
 justly treated, as a partnership for this purpose. It would seem, 
 then, that the. unanimous assent of the members will remove all ob- 
 jections founded on the principles of partnership, and will so far 
 leave the corporation in full possession of its common law powers. 
 There are nevertheless many transactions which even the unani- 
 mous will of all the members can not make binding as corporate 
 acts. For the reasons which determine this we must seek farther. 
 
 2. Most corporations established in modern times by special acts 
 •of Parliament have been established expressly for special purposes 
 -the fulfillment of which is considered to be for the benefit of the 
 public as well as of the proprietors of the undertaking, and for this 
 reason they are armed with extraordinary powers and privileges, 
 
 "with, or that the fact does exist, may be relied on by one acting in good 
 faith, and is conclusive and binding on the corporation. Eailroad Go. u. 
 -Schuyler, 34 N. Y. 30, 73; Merchants' Bank v. State Bank, 10 Wall. 604, 64t; 
 Miners' Ditch Co. v. Zellerbach, 37 Cal. 543, 587; Eailroad Co. u. Norwich, etc., 
 Society, 24 Ind. 457 ; Fay v. Noble, 12 Cush. 1 ; Commissioners v. Aspinwall, 21 
 How. 539; Bissell v: Jeffersonville, 24 How. 287 ; Moran v. Commissioners, 2 
 Black, 722; Gelpke v. Dubuque, I Wall. 175; St. Joseph v . Rogers, 10 Wall. 
 -644; Colomav. Eaves, 92 U.S. 484; Commissioners v. Bollos, 94 U. S. 104; 
 Commissioners v. January, 94 IT. S. 202; Henry County v. Nieolay, 95 U.S. 
 •619; San Antonio v. Mehaffy, 9.j U. S. 312; De Voss v. Richmond, 18 Gratt. 
 -338 ; Orleans v. Piatt, 99 U. S. 076 ; County of Warren v. Marcy, 97 U. S. 96.] 
 (a) Even this is in strictness hardly consistent with the leading principle that 
 if A, B, C, . . etc., are incoi porated to them and their successors by the 
 aianie of X, then A + B + C - . . . etc., are not = X 
 
 105 
 
90 CHAP. II. CAPACITY OP PARTIES. 
 
 Whatever a corporation may be capable of doing at common lawy 
 there is no doubt that unusual powers given by the Legislature for 
 a special purpose must be employed only for that purpose : if Par- 
 liament empowers either natural persons or a corporation to take 
 J. S.'s lands for a railway, J. S. is not bound to let them take it for 
 a factory or to let them take an excessive quantity of land on pur- 
 pose to resell it at a profit (a). If Parliameut confers immunity 
 for the obstruction of a navigable river by building a bridge at a 
 specified place that will be no excuse for obstructing it in the like 
 manner elsewhere. Moreover we can not stop here. It is impos- 
 sible to say that an incorporation for special objects and with 
 96} special *powers gives a restricted right of using those powers,, 
 but leaves the use of ordinary corporate powers without any re- 
 striction. The possession of extraordinary powers puts the cor- 
 poration for almost all purposes, and in almost all transactions in a 
 wholly different position from that which it would have held with- 
 out them ; and apart from the actual exercise of them it may do 
 many things which it was otherwise legally competent to do, but 
 which without their existence'jt could practically never have done. 
 Any substantial departure from the purposes contemplated by the 
 Legislature, whether involving on the face of it a misapplication 
 of special powers or not, would defeat the expectations and objects 
 with which those powers were given. It may be too much to say 
 that by the mere act of incorporation for a particular purpose the 
 Legislature forbids the corporate body to do anything remote from 
 that purpose. But when, in the public interest and in consideration 
 of a presumed benefit to the public, it adds extraordinary powers, 
 it must be taken in the same interest to forbid the corporation to- 
 do that which will tend to defeat the policy of the whole scheme; 
 and to forbid in the sense not only of attaching penal consequences 
 to such acts when done, but of making them wholly void if it is 
 attempted to do them. Accordingly contracts of railway compa- 
 
 (a) See Galloway ■». Mayor of London, L. K., 1 H. L. at p 43; Lord Caring- 
 ton v. "Wycombe Ry. Co , 3 Ch. 377, 381 ; [Mulliner v. Midland Ry. Co., 11 Ch. 
 D. 611]. Nor may a company hold regattas or let out pleasure boats to the in- 
 convenience of the former owner on a piece of water acquired by them under 
 their Act for a reservoir. Bostook v. N. Staffordshire Ry Co., 3 Sm. & G. 283, 
 292. But a statutory corporation acquiring property takes it with all itarights 
 and incidents as against strangers, subject only to the duty of exercising those- 
 rights in good faith with a view to the objects of incorporation. Swindon 
 "Waterworks Co. v. "Wilts & Berks Canal Navigation Co., L. R., 7 H. L. 697,. 
 704, 710. 
 
 106 
 
CORPORATE POWERS : POLICY OF INCORPORATION. 97 
 
 nies and corporations of a like public nature which can be seen to 
 import a substantial contravention of the policy of the incorporating 
 acts are held by the courts to be void, and are often spoken of as 
 mala prohibita, and illegal in the same sense that a contract of a 
 natural person to do any thing contrary to the provisions of an Act 
 of Parliament is illegal (a).. Others prefer to say that the Legis- 
 lature, acting indeed on motives of public policy, has simply dis- 
 abled the corporation from doing acts of this class ; " to regard the 
 case as one of incapacity to contract rather than of illegality, and 
 the corporation as if it were non-existent for the purpose of such 
 contracts" (b). 
 
 The difference, however, is but a verbal one, and both modes 
 of expression have their convenience. The former seems required 
 *in such a case as that where it was decided that the agrees [97 
 ment of a third person to^procure a company to do something for- 
 eign to its proper purposes is illegal and void (c). 
 
 (a) Blackburn, J., in Taylor v. Chichester &c, Co., L. B., 2 Ex. 379; and- 
 (Brett and Grove, J J., concurring) in Eiche v. Ashbury By. Carriage Co., L. 
 B., 9 Ex. 262, 266; Lord Hatberley, s. c. nom. Ashbury By. Carriage Co. «.. 
 Eiche. L. K, 7 H. L., at p. 689; [cp. Att'y-Gen'l v. G. E. By. Co., 11 Ch. D. 
 449, 502, per Bramwell, L. J.] 
 
 (b) Archibald, J. (Keating and Quain, JJ., concurring), L. E., 9 Ex. 293; 
 Lord Cairns, L. B., 7 H. L., at p. 672; Lord Selborn, lb. 694. 
 
 (c) McGregors Dover and Deal By. Co., 18 Q. B. 618, 22 L.J. Q. B. 69.. 
 See per Erie, J., in Mayor of Norwich v. Norfolk By. Co., 4 E. & B. 397, 24 L. 
 J.Q. B. 105. [Corporations may exercise all such powers as are expressly con- 
 ferred upon them and all others which are necessary to the exercise of those 
 expressly 'conferred ; and "necessary" is to be taken not in the sense of "in- 
 dispensable," but rather of " reasonably incidental." Barry v. Merchants' Ex- 
 change Co., 1 Sandf. Ch. 280; Thompson v. Lambert, 44 la. 239 ; Curtis v. Lea- 
 vitt, 15 N. Y. 9, 65 ; Brown v. Winnisimmet Co., 1-1 Allen, 326 ; Madison PIk. 
 Ed. C°- -■ Watertown Plk. Bd. Co., 5 Wis. 173; Bank v. Jacobs, 6 Humph. 515,. 
 ,525; Mossn. Rossie Mining Co., 5 Hill, 137; Galena v. Corinth, 48 111. 423; 
 Miller v. Board, etc., of Dearborn Co., 66 Ind. 162, 167. 
 
 In the United States they can be created only by the legislature. Miners' 
 Ditch Co. v. Zellerbach, 37 Cal. 543, 604; Stowe v. Plagg, 72 111. 397; Pranldin 
 Bridge Co. v. "Wood, 14 Ga. 80; Atkinson v. Eailroad Co., 15 O. S. 21, 33. And 
 as the theory of "general capacity" of corporations is limited by the rule that 
 corporations created by legislative enactment must be taken to be prohibited 
 from doing any acts which amount to a substantial departure from the purpose 
 of their incorporation, it would seem to make but little difference whether the 
 theory ol general or special capacities be adopted for the purpose of determine- 
 in", whether a given ant is, or is not, ultra vires a given corporation. But for- 
 -the purpose of determining the effect to be ascribed to the unauthorized en— 
 
 107 
 
~97 CHAP. II. CAPACITY 0¥ PARTIES. 
 
 There is another consideration of a somewhat similar kind which 
 applies equally to what may be called public companies in a special 
 sense — i.e., such as are invested with special powers for carrying 
 
 gagements of a corporation, the distinction between the doctrine which rests 
 upon a, want of capacity to do an act, and that which rests upon a prohibition 
 against doing an act, thus impliedly admitting the capacity to do it, is im- 
 portant. 
 
 Perhaps the strongest statement of the doctrine of special capacities is to be 
 found in the case of Strauss v. Insurance Co., 5 O. S. 60, where it was held 
 that a corporation, which was authorized to make and receive negotiable paper 
 in the course of its business, having, in the execution of an unauthorized con- 
 tract, taken by indorsement, from the other party to the contract, the promise 
 sory note of a third person, could not recover on the note against the maker. 
 The court say : " The contract of indorsement, like every other, must have par- 
 ties ; without two parties competent to contract there can be no agreement by 
 which the one can lose and the other acquire the title to negotiable paper. 
 The powers and capacities of a corporation must be derived from the law of its 
 •creation or they do not exist. If a fair construction of its charter does not con- 
 fer the power it is incompetent to become a party to the contract of indorse- 
 ment, and, without capacity to take or hold the title. As well might a dead 
 man, by the mere act of the indorser, be vested with the legal interest, as a 
 . corporation which only lives for the purposes and objects intended by the leg- 
 islature. Beyond those limits it has no existence, and its acts are neither more 
 nor less than a nullity." Op. Ehrman v. Insurance Co., 35 O. S. 324. 
 
 Upon this theory every unauthorized engagement of a corporation, whether 
 executory or wholly executed, must always remain utterly void and inoperative 
 as a contract for want of parties ; if it mcludes ah alienation by or to the cor- 
 poration the title can not pass for want of a grantor, or grantee,' as the case 
 may be. 
 
 But that this metaphysical view of the limits of the capacity of corporations, 
 drawn from their artificial constitution, is founded in error, is shown by the 
 common-law rule as laid down in the case of Sutton's Hospital, 10 Co. Rep. 306: 
 A statutory and a common-law corporation are equally artificial beings, alike 
 creatures of the law, and any limitations upon their capacity, inherent in their 
 nature as such artificial beings, inhere equally in both; so that if a common-law 
 corporation is not, by reason of its artificial nature, unable to exercise powers 
 not conferred upon it, neither is a statutory corporation. If a corporation' has 
 no existence save for the purposes for which it was created, then, as no corpora- 
 tion was ever created for that purpose, it can not any more than a " dead man " 
 •commit a tort. That in legal contemplation, as well as in fact, corporations 
 have the capacity to and do acts hot only not authorized by their charters, but 
 expressly prohibited, is shown by the fact that the law provides the remedy by 
 quo warranto against them for such very abuse, and usurpation of power. 
 
 The other theory in regard to corporations is that once created they have the 
 -capacity, limited only by, natural possibility, of doing any act or making any 
 •contract, but that in addition to the express prohibitions mentioned in their 
 108 
 
CORPORATE POWERS : POLICY OF INCORPORATION. 9T 
 
 out defined objects of public interest — and ordinary joint-stock 
 companies which have no such powers. The provisions for limited 
 liability and for the easy transfer of shares in both sorts of com- 
 panies must be considered, in their modern form and extent at least, 
 as a statutory privilege. These provisions also invest the compa- 
 nies with a certain public character and interest quite apart from 
 the nature of their particular object in each case, but derived from. 
 
 charters, there is an implied prohibition against any corporation's doing any 
 act or making any contract not reasonably incidental to the objects for which 
 it was incorporated. 
 
 But an alienation of property, made in execution of a contract ultra vires 
 passes title. Bank v. Matthews, 98 U. S. 621, 628; Banks v. Poitiaux, 3 lland.> 
 136; Sbewalteru. Pirner, 55 Mo. 218; "Walsh v. Barton, 24 O. S. 28; Smith v. 
 Sheely, 12 Wall. 358 ; Leazure v. Hillegas, 7 S. & K. 312 ; Parish v. Wheeler, 
 22 N. Y. 494, 504; Edwards v. Fairbanks, 27 La. Ann. 449; Ehrman v. Insur- 
 ance Co., 35 0. S. 3.24. Cp. Madison Avenue, etc., Church v. Bapt. Church in 
 Oliver street, 73 N. Y. 82. 
 
 A prohibition against a corporation's making a particular contract will not 
 necessarily render the contract void; it may be accompanied by a specific pen- 
 alty, such as itself, to indicate the contrary. Bank v. Dearing, 91 U. S. 29;. 
 Banku. Hobbs, 11 Gray, 250; Bank u. Garlinghouse, 22 O. S. 492; Bank*. 
 Moore, 2 Bond, 170; Bank v. Pratt, 115 Mass. 539; Wiley v. Starbuck, 44 Ind. 
 298; Brown v. Bank, 72 Pa. St. 209. 
 
 A contract which corporations and individuals are both forbidden to make, 
 as where the charter of a bank forbids its loaning money at more than a certain 
 rate of interest, and, by the general law, there is a similar prohibition applying 
 to natural persons, will not be void when made by a corporation, unless it 
 would be void if made by an individual. Bank v. Nolan, 7 How. (Miss.) 508; 
 Bank v. Archer, 8 S. & M. 151 ; Bank v. Harrison, 57 Mo. 503 ; Bank v. Bureh- 
 ard, 33 Vt. 346; McLean v. Uank, 3 McLean, 587, 609; Bank v. Sherwood, 10 
 Wis. 230; Darby's Trustees „. Boatmen's Sav. Inst., 1 Dillon, 141. Contra, 
 Banlcu. Swayne, 8 Ohio, 257; Orr v. Lacey, 2 Dougl. 230; Bank «. Owens, 2 
 Pet. 527 ; cf. s. c. sub nom. Bank v. Waggoner, 9 Pet. 378. 
 
 Courts are extremely unwilling to sustain the defense of ultra vires where 
 the party raising it has received the consideration of the contract, and is trying • 
 to evade payment therefor; and the tendency of the later cases is to hold that 
 after full performance by either party, and enjoyment thereof by the other, of 
 a contract ultra vires whether expressly or impliedly prohibited, neither should 
 be heard to object that the corporation had no right to make it. Bank v. Mat- 
 thews, 98 U. S. 621, 629; Whitney Arms Co. v. Barlow, 63 N". T. 62; Hays v.- 
 Gasli»ht Co., 29 O. S. 330, 340; Kailroad Co. v. Transportation Co., 83 Pa. St. 
 160; De Groff v. Amer. L. T. Co., 21 N. Y. 124; Darst v. Gale, 83 111. 136; 
 Bradley v. Ballard, 55 111. 413; Thompson v. Lambert, 44 la. 239; Chester- 
 Glass Co. u. Dewey, 16 Mass. 94; State Board v. Railroad Co., 47 Ind. 407; 
 Steam. Nav. Co. v. Weed, 17 Barb. 378; Indiana v. Woram, 6 Hill, 33; Parish^ 
 ■» Wheeler 22 N. Y. 494, 506;' Argentic. San Francisco, 16 Gal. 255.] 
 
 109 
 
98 CHAP. II. CAPACITY OV PARTIES. 
 
 the fact that they do professedly exist for particular objects. By 
 far the greater part of their capital represents the money of share- 
 holders who have bought shares in the market without any inten- 
 tion of taking an active part in the management of the concern, 
 but on the faith that they know in what sort of adventure they are 
 investing their money, and that the company's funds-are not being 
 and will not be applied to other objects than those set forth in its 
 constitution as declared by the act of incorporation, memorandum 
 of association, or the like. This is not a mere repetition of the ob- 
 jections grounded on partnership law; the incoming shareholder 
 may protect himself for the future, but the mischief may be done 
 or doing at the time of the purchase ; and besides it may fairly be 
 said that persons other than shareholders deal with the company 
 on the faith of its adhering to its defined objects. They are enti- 
 tled to '' know that they are dealing with persons who can only 
 devote their means to a given class of objects, and who are pro- 
 hibited from devoting their means to any other purpose " (a). The 
 assent of all those who are shareholders at a given time will, of 
 course, bind them individually, but leaves this difficulty un- 
 touched (b). If I buy shares in a company which professes to 
 98] make railway plant in England 1 have a right *to assume 
 that its funds are not pledged to pay for making a railway in Spain 
 -or Belgium, and it is the same if dealing with it as a stranger I 
 lend money or otherwise give credit to it. Accordingly the pro- 
 visions of the Companies Act, 1862, are to be considered as having 
 been enacted in the interests of " in the first plaee, those who might 
 becqme shareholders in succession to the persons who were share- 
 holders for the time being; and secondly, the outside public, and 
 more particularly those who might be creditors of companies of 
 this kind" (e). The House of Lords has unanimously decided 
 (after an equal division of opinion in the Court of Exchequer 
 Chamber) that by the general scheme and on the true construction 
 of the Act a company registered under it is forbidden to enter, 
 even with the unanimous assent of the shareholders for the time 
 being, into a contract foreign to its objects as defined in the memo- 
 randum of association (d). 
 
 (a) Lord Hatherley, L. K., 7 H. L., at p. 684 
 (J) See L. B., 9 Ex. 270, 291. 
 
 (c) Lord Cairns, L. B., 7 H. L., at p. 667. 
 
 (d) Ashtiury Ey. Carriage & Iron Co:». Eiche, L. K., 7 H. L. 653; in Ex. 
 .and Ex. Ch. L. E., 9 Ex. 224, 249. 
 
 110 
 
CORPORATE POWERS: AUTHORITIES. 99 
 
 We may now give some specimens of the authorities, showing 
 tow the three distinct topics of the powers of corporations as such 
 (a), and the application to them of (/9) the rules of partnership, 
 a,nd (/) the principles of public policy, have been treated, some- 
 times together and sometimes separately. We shall endeavor to 
 -arrange our citations in an order approximately following that in 
 which these topics have been mentioned, according as one or the 
 other is most prominent; a precise division, would be impossiblo 
 without breaking up passages from the same judgment into many 
 fragments, but we shall use the indicating letters (a j3 f) to call at- 
 tention to the presence of the special class of considerations re- 
 spectively denoted by them in this place. And it may be observed 
 that some of those dicta which seem most strongly to adopt on the 
 first head the theory of limited special capacities occur in the im- 
 mediate neighborhood of statements coming under one or both of 
 the other heads, which in all probability have had an appreciable, 
 though it may be an undesigned, operation in modifying the form 
 ■of their expression. 
 
 Capacities incident to incorporation generally. Resolution of Ex. Ch. in the 
 ■case of Sutton's Hospital, 10 Co. Rep. 30 h : 
 
 *" When a corporation is duly created all other incidents are tacite [99 
 annexed . . . and therefore divers clauses subsequent in the charter 
 are not of necessity, but only declaratory, and might well have been left 
 out. As, 1. by the same to have authority, ability, and capacity to pur- 
 chase; but no clause is added that they may alien, etc., and it need not, 
 for it is incident. 2. To sue and be sued, implead and be impleaded. 
 3. To have a seal, etc. ; that is also declaratory, for when they are incor- 
 porated they may make or use what seal they will. [So Shepp. Touchst. 
 57: 'although it be a corporation that doth make the deed, yet they may 
 seal with any other seal besides their common seal, and the deed never 
 the worse.'] 4. To restrain them from aliening or demising, but in a cer- 
 tain form; that is an ordinance testifying the King's desire, but it is but 
 a precept and doth not bind in law." 
 
 This resolution does not seem to have been very material to the de- 
 cision of the case, but any thing reported by Coke is by inveterate custom 
 exempt from criticism of this kind; moreover it is supported by the 
 opinion of Hobart, C. J., who says that a power to make by-laws, though 
 given by a special clause in all incorporations, is needless ; " for I hold it to 
 be included by law in the very act of incorporating, as is also the power 
 to sue, to purchase, and the like." (Hob. 211, pi. 268). This very positive 
 -statement was all but lost sight of in modern cases (a) till it was cited by 
 Blackburn, J., in Riche v. Ashbury Ry. Carriage Co., L.^R. 9 Ex. 263-4: — 
 
 la) It is cited by Erie, J., in Bostock v. N. Staffordshire Ry. Co., i E. & B. 
 
 Ill 
 
100 CHAP. II. CAPACITY OF PARTIES. 
 
 " This seems to me an express authority that at common law it is are 
 incident to a corporation to use its common seal for the purpose of bind- 
 ing itself to any thing to which a natural person could bind himself, and 
 to deal with its property as a natural person might deal with his own. 
 And further that an attempt, to forbid this on the part of the King, even 
 by express negative words, does not bind at law (a). Nor am I aware of 
 any authority in conflict with this case. . . . I take it that the true rule 
 of law is that a corporation at Common Law has, as an incident given by 
 law, the same power to contract, and subject to the same restrictions, 
 that a natural person has. And this is important when We come to con- 
 strue the statutes creating a corporation.!' 
 
 We must now shortly trace the growth of the doctrine of special capaci- 
 ties in Colman v. Eastern Counties By. Co., 10 Beav. 1, and similar cases. 
 100] The subject was. novel, many-sided, and embarrassing; *Parliament 
 was called on to make and the Courts to construe statutory powers and 
 provisions the like of which had seldom if ever been made or construed 
 in earlier times ; and so many new points arose for legislative precaution 
 and judicial discussion, and it took so much time and labor to disentangle 
 them, that it never occured to any body to think that the Common Law 
 could have any thing of importance to say to the matter. Indeed, to 
 speak plainly, it is clear enough that Parliament had forgotten all about 
 the Sutton's Hospital case, and perhaps it is not surprising that the 
 Courts did not remember it. 
 
 In Colman v. E. C. Ry. Co., the suit was by a shareholder to restrain the 
 company and its directors from applying its funds in promoting a steam- 
 packet company in connection with the railway. Injunction granted (4). 
 Lord Langdale in the course of his judgment spoke of the exercise of a 
 railway company's powers as a matter affecting public rights and interests, 
 and therefore to be looked into with more vigilance than the conduct of 
 an ordinary partnership, and observed how desirable it was that the prop- 
 erty of railway companies should be secure from being pledged to un- 
 authorized speculations, so that investment in them might be prudent [y]. 
 He further expressed his clear opinion " that the powers which are given 
 by an Act of Parliament, like that now in question, extend no farther 
 than is expressly stated in the Act, or is necessarily and properly re- 
 quired for carrying into effect the undertaking and works which the Act 
 has expressly sanctioned. . . They [the company] have the power to 
 do all such things as are necessary and proper for the purpose of carrying 
 
 798, 819, 24 L. J. Q. B. 225 [and, eleven years before, by Sandford, Ass. V-C, 
 in Barry v. Merchants' Exchange Co., 1 Sandf. Ch. 280, 293]. 
 
 (a) That is, a corporate act in violation of the conditions of the charter is 
 not void, but the Crawn has a remedy by proceeding by set fa. for the repeal, 
 of the letters patent. See lb. p. 264. 
 
 (6) [See cases supra, p. 93, n. (J).] 
 112 
 
CORPORATE POWERS: AUTHORITIES. 
 
 out the intention of the Act of Parliament, hut they have no power ofT 
 doing any thing beyond it." 
 
 Salomons v. Laing, 12 Beav. 339, also before Lord Langdale, was a suit 
 by a shareholder to restrain the London, Brighton, and South Coast Ry. 
 Co., which was already lawfully possessed of many shares in the Direct 
 London and Portsmouth Co., from taking up more shares in that com- 
 pany and otherwise assisting it out of the South Coast Co.'s funds (»).. 
 The M.R. said: "A railway company incorporated by Act of Parliament 
 is bound to apply all the moneys and property of the company for the 
 purposes directed and provided for by the Act, and for no other purpose 
 whatever." He went on to say that any surplus after the purposes of the 
 Act. are fulfilled belongs to the shareholders as dividend and can not be 
 disposed of against the will of any shareholder [/3]. "Any application 
 of or dealing with . . any funds or money of the company . in 
 
 any manner not distinctly authorized by the Act, is in my opinion an il- 
 legal application or dealing" (p. 352") (£). In a later stage of the case 
 (pp. 377, *382) he spoke of the arrangement between the two com- [101 
 panies as " fraud against the legislature,- who gave them their powers for 
 purposes entirely different" [y]. The case of Cohen v. Wilkinson (12~ 
 Beav. 125, 138, 1 Mac. & G. 481), which arose out of the same series of 
 transactions, decided that a railway company is bound not only to, make- 
 nothing different from what Parliament intended it to make, but to make 
 nothing less than the whole; abandoning a material part of the scheme- 
 is in fact equivalent to substituting a different scheme (cp. Hodgson v. 
 Earl of Powis, 1 D. M. G. 6). 
 
 in Bagshaw v. East Union Ey. Co. (7 Ha. 114) it was laid down that- 
 capital raised under an Act of Parliament for a specific purpose defined 
 by the Act can not be applied by directors (and probably not by the unani- 
 mous assent of the shareholders) to any other purpose than such as the> 
 company's general funds might be applied to [y] : in the Court of Appeal 
 (2 Mac. & G. 389) the case was put more on the ground of the individual 
 shareholder's right to have his money applied only to the specific purpose 
 for which he advanced it [/3]. 
 
 In the subsequent cases of Beman v. Rufford, 1 Sim. N. S. 550 (Lord 
 Cranworth, V.-C.) and G. N. Railway Co. v. E. C. Railway Co.. 9 Ha. 305 
 (Turner, V.-C.) the point is that the statutory incorporation of a railway 
 company imposes on it, with reference to the interests of the public [y], a, 
 positive duty of maintaining and working its line, and it must not enter 
 into any agreement, that amounts to a delegation or abandonment, of this 
 duty (c) ; in Beman v. Rufford, however, the strong expression occurs 
 
 (a) [See cases supra, p. 93, n. (J). 
 
 (b) [March v. Railroad Co., 43 N". H. 515, 532 ; Franklin Co. v. Bank, 68 Me. 
 43, 48 ; Dodge v. "Woolsey, 18 How. 331, 342.] 
 
 (c) As a lease of the undertaking, or grant of exclusive running powers and 
 control of the line to another company. [Thomas v. Railroad Co., 101 U. S. 
 
 113 
 
102 CHAP. II. CAPACITT OF PARTIES. 
 
 "that, "on the principle that has been so often laid down, this Court will 
 •not tolerate that parties having the enormous powers which railway com- 
 panies obtain [y] should apply one farthing of their funds in a way which 
 differs in the slightest degree from that in which the legislature has pro- 
 vided that they shall be applied " (p. 565). The remarks of the Lord Jus- 
 tice Turner in the later case of Shrewsbury & Birmingham Ry. Co. v. L. 
 & N. W. Ey. Co., 4 D. M. G. 115, 132, are less strong; in Simpson v. West- 
 minster Palace Hotel Co., 2 D. F. J. 141, a dissenting shareholders' suit, 
 he seems to confine himself to the power of a meeting to bind the minor- 
 ity on partnership principles [/?]. 
 
 We have dwelt so far on these decisions in this place (though one or 
 two or them do not even in their language really postulate the doctrine 
 •of limited special capacities) because they had much weight in East 
 Anglian Railways Co. v. E. C. Railway Co., 11 C. B. 775, 21 L. J. C. P. 23, 
 •which for some time was treated as a leading case, and was the chief ob- 
 102] stacle to the restoration of the common law *doctrine of " general 
 capacity." That was in effect the case of an agreement by one railway 
 company to promote the undertaking of another. The Court said: " It 
 is clear that the defendants have a limited authority only, and- are a cor- 
 poration only for the purpose of making and maintaining the railway 
 sanctioned by the Act, and that their funds can only be applied for the 
 purposes directed and provided for by the statute." " Nor does it matter 
 that an application of funds not authorized by the Act is expected to be 
 for the profit of the line.) " They are a corporation only for the purpose 
 of making and maintaining the Eastern Counties Railway. Every pro- 
 prietor when he takes shares has a right to expect that the conditions 
 upon which the Act was obtained will be performed . . the public 
 
 also has an interest in the proper administration of the powers conferred 
 by the Act [y]. . . If the company is a corporation only for a lim- 
 
 ited purpose, and a contract like that under discussion is not within their 
 authority, the assent of all the shareholders to such a contract [/3], though 
 it may make them all personally liable to perform their contract, would 
 not bind them in their corporate capacity or render liable their corporate 
 funds." This was followed by Macgregor v. Dover and Deal Railway 
 Co. (in Ex. Ch.) 18 Q. B. 618, 22 L. J. Q. B. 69. The plaintiff in error, the 
 Chairman of the South Eastern Railway Co. had undertaken that his com- 
 pany should guarantee certain .parliamentary expenses of the Dover and 
 Deal Company. Held, on the authority of the last case, that the agree- 
 
 71 ; Black v. Canal Co., 22 N. J. Eq. 130; 24 Id. 455; Comm'rs of Tippecanoe 
 Co. v. Railroad Co., 50 Ind. 85; Stewart's Appeal, S6 Pa. St. 413; Middlesex 
 R. R. Co. v. Boston and Chelsea R. R. Co., 115 Mass'. 347; Railroad Co. v. Wi- 
 nans, 17 How. 30; Hays v. Railroad Co., 61 111. 422; State v. Consolidation Coal 
 Co., 46 Md. 1, 10. 
 
 A corporation can not, without express legislative authority, either sell or 
 mortgage its franchises. Green's Brice's Ultra Vires, 237, n. (S)]. 
 lit 
 
CORPORATE POWERS: AUTHORITIES. 103 
 
 anent was void as an attempt to bind the 8. E. Company to do an act 
 which to the knowledge of both parties would be illegal ; " not merely an 
 act which they have no power to do, but an act contrary to public policy 
 and the provisions of a public Act of Parliament " [y] 
 
 In Hart v. Eastern Union By. Co., 7 Ex. 246, 21 L. J. Ex. 97, in Ex. Ch. 
 8 Ex. 116, 22 L. J. Ex. 20, it was even contended, but without success, 
 that when a company was empowered by its Act to borrow money on de- 
 bentures, there was no right of action on such debentures because the 
 Act had no words expressly giving it, and provided another special remedy 
 in certain events. Cp. Slark v. Highgate Archway Co., 5 Taunt. 792. 
 
 But this doctrine did not long pass unquestioned. The theory of gen- 
 eral capacity was upheld in S. Yorkshire Ry. & Eiver Dun Co. v. G. N. 
 Ky. Co., 9 Ex. 55, 22 L. J. Ex. 305. The action was on an agreement that 
 the defendant company should have the use of the plaintiff company's 
 line for carrying coal for 21 years, paying tolls on a scheme framed to se- 
 cure to the plaintiff company a dividend varying with the quantity of coal 
 carried. The defendant company pleaded that the agreement was un- 
 authorized and void. The arguments turned a good deal on the question 
 whether these payments were such "tolls" *as contemplated by [103 
 the Railways Clauses Consolidation Act, and on that ground the decision 
 in favor of the agreement was affirmed in the Exchequer- Chamber (9 Ex. 
 ■642), nothing being said on the general doctrine. In the Court below 
 Parke, B., afterwards Lord Wensleydale, expressed bis opinion that as a 
 corporation the defendants had power to do all things connected with the 
 management of the concern unless prohibited by the Act of Parliament 
 (9 Ex. 67) and that the contract was prima fade binding, and must be en- 
 forced if it could not be made out that it was forbidden by the Act (9 Ex. 
 88, 22 L. J. Ex. 315). The classical passage of his judgment, as it may 
 now fairly be called, is as follows : 
 
 " Generally speaking, all corporations are bound by a covenant under 
 their corporate seal properly affixed, which is a legal mode of expressing 
 the will of the entire body, and are bound as much as an individual is by 
 his deed. Contracts with partnerships stand upon a different footing. 
 They relate to the power of one member of a partnership to bind another, 
 and constitute a branch of the law of principal and agent. In partner- 
 ships, where all the members do not concur in a contract (as often they 
 do not) one partner may bind the other in all contracts within the scope 
 of their ordinary partnership dealings. In those beyond, the individual 
 partners making the contract are bound, not the other partners. But cor- 
 porations, which are creations of law, are, when the seal is properly affixed, 
 bound just as individuals are by their own contracts, as much as all the 
 members of a partnership would be by a contract in which all concurred. 
 But where a corporation is created by an Act of Parliament for particular 
 purposes with special powers, then indeed another question arises. Their 
 deed, though under their corporate, seal, and that regularly affixed 
 •does not bind them if it appears by the express provisions of the statute 
 
 115 
 
104 CHAP. II. CAPACITY OF PAETIES. 
 
 creating the corporation, or by necessary or reasonable inference from its* 
 enactments, that this deed was ultra vires — that is, that the legislature- 
 meant that such a deed should not be made.'' 
 
 This is adopted by Blackburn, J., in his judgment in Taylor v. Chiches- 
 ter & Midhurst Railway Co., L. R. 2 Ex. 356, 383. In the Exchequer- 
 Chamber Blackburn and Willes, J.J., were a dissenting minority : the de- 
 cision of the majority was reversed in the House of Lords, L, R. 4 U . L. 
 628, but on the ground that the agreement then in question was clearly 
 within the company's ordinary and proper business, so that no share- 
 holder could have objected to the directors entering into it, and thus the 
 more general question Was left at large. The judgments of the dissenting- 
 judges below remain entitled to considerable weight: and, at all events, in 
 the words of Blackburn, J., "Lord Wensleydale's mode of stating the 
 104] proposition has been *adopted as expressing the true doctrine, by 
 the Court of Queen's Bench in Chambers v. Manchester & Milford Rail- 
 way Co., 5 B. & S. 588; 3.3 L. J., Q. B. 268; by the Court of Common 
 Pleas in South Wales Railway Co. v. Redmond, 10 C. B. N. S. 675 [see per 
 Erie, C. J., at p. 682] ; by. the Court of Exchequer in Bateman v. Mayor, 
 &c, of Ashton-under-Lyne, 3 H. & N. 323 ; 27 L. J., Ex. 458 [where, how- 
 ever, one member of- the court could not get over the East Anglian case, 
 though personally not approving it] ; by Lord Cranworth, C, in delivering 
 the judgment in the House of Lords in Shrewsbury & Birmingham Rail- 
 way Co. v. N. W. Railway Co., 6 H. L. 113." 
 
 Lord Cranworth's remarks must be specially cited. 
 
 "Prima facie corporate bodies are bound by all contracts under their - 
 common seal. When the legislature constitutes a corporation it gives to 
 that body prima facie an absolute right of contracting. But this prima 
 facie right does not exist in any case where the contract is one which, 
 from the nature and object of the incorporation, the corporate body is ex- 
 pressly or impliedly prohibited from making ; such a contract is said to 
 be ultra vires (a). And the question here, as in similar cases, is whether 
 there is any thing on the face of the act of incorporation which expressly 
 or impliedly forbids the making of the contract sought to be enforced " 
 (p. 135.) 
 
 The actual ground of decision was that in this case, whether the con- 
 tract was valid or not, the time had not arrived at which it was to take 
 effect. 
 
 Moreover Lord Wensleydale was enabled to repeat his opinion even 
 more distinctly in the House of Lords: Scottish N. E. Railway Co. v. 
 Stewart, 3 Macq. 382, 415 (and see per Willes, J., L. R. 2 Ex. 390-1). 
 
 " There can be no doubt that a corporation is fully capable of binding- 
 itself by any contract under its common seal in England and without it 
 
 (a) This term, if restricted to the definition here given of it, is harmless, and 
 possibly convenient; but it has become so ambiguous by less accurate usage* 
 that we prefer to avoid it. *'•-,_- 
 
 116 
 
CORPORATE POWERS: AUTHORITIES. 105 
 
 in Scotland, except when the statutes by which it is created or regulated 
 •expressly or by necessary implication prohibit such contract between the 
 parties. Prima facie all its contracts are valid, and it lies oh those who 
 impeach any contract to make out that it is avoided." 
 
 Lord St. Leonards took the same view in E. C. Ry. Co. v. Hawkes in the 
 Court of Chancery (See 1 D. M. G. 737, 752, 759-60), and still more clearly 
 in the House of Lord (5 H. L. C. 331). 
 
 " The appellants as a corporation have all the powers incident to 
 *a corporation except so far as they are restrained by their act of [105 
 incorporation. Directors can not act in opposition to the purpose for 
 -which their company was incorporated [y], but short of that they may 
 bind the body just as [the proper officers, etc., of] corporations in general 
 may do" (p. 373). Again, " the safety of men in their daily contracts re- 
 quires that this doctrine of ultra vires should be confined within narrow 
 bounds " (p. 371). He further stated the effect of this and other shortly 
 preceding decisions of the House of Lords (which, however, do not much 
 illustrate our particular subject), as being to " place the powers and lia- 
 bilities of directors and their companies in. making contracts and in 
 -dealing with third parties upon a safe and rational footing. They do not 
 -authorize directors to bind their companies by contracts foreign to the 
 purposes for which they were established, but they do hold companies 
 bound by contracts duly entered into by their directors for purposes 
 •which they have treated as within the objects of their Acts, and which 
 can not clearly be shown not to fall within them " (p. 381, and see L. R. 
 9 Ex. 389). This case is the more important inasmuch as it was one of 
 specific performance of a contract to purchase land and pay =>. sum of 
 •money as compensation and damages, and the contract was enforced not- 
 withstanding that in the result the land was not wanted by the com- 
 >pany. 
 
 The doctrine was also discussed by Erie, J., in Mayor of Norwich v. 
 Norfolk Ry. Co., 4 E. & B. 397, 24 L. J. Q. B. 105 (a case where there was 
 •an extraordinary division of opinion in the court on the question actu- 
 ally before them, and especially whether the particular contract was or 
 was not unlawful in itself). He thought the true view to be that corpora- 
 tions were prohibited by implication only from using their parliamentary 
 powers in order to defeat the purposes of incorporation, and criticised 
 •the judgment in the East Anglian case as too wide (4 E. & B. 415, 24 L. 
 J. Q. B 112): and he carefully pointed out the danger of overlooking 
 the differences between a dissecting shareholder's suit in equity and an 
 •action by a stranger against the corporate body (4 E. & B. 419, 24 L. J. 
 Q. B. 113). The same learned judge further said in Bostock v. N. Staf- 
 fordshire Ry. Co., 4 E. & B. 798, 819, 24 L. J. Q. B. 225, 231 (this however 
 •was not a case of contract), citing the Sutton's Hospital case, " By com- 
 mon law the creation of a corporation conferred on it all the rights and 
 liabilities in respect of property, contracts and litigation, which existence 
 .confers on a natural subject, modified only by the formalities required for 
 
 117 
 
106 CHAP. II. CAPACITT OF PARTIES. 
 
 expressing the will of a numerous body. ... Those of its rights andi 
 liabilities which are unaffected by statute exist as at common law," 
 
 Turning to recent cases in courts of equity, we find marked signs of 
 an abandonment of their earlier view, and adhesion to the doctrine 
 106J *of general capacity. In considering the power of building socie- 
 ties^ which were statutory quasi-corporations; see now the Act of 1874, 
 '.,1 & ;;8 Vict., c. 42), to borrow money, the question has been treated on 
 all hands as being not whether the borrowing of money was expressly 
 or necessarily permitted by the statute, but whether it was forbidden or • 
 clearly repugnant to the constitution and objects of the society : Laing 
 V. Reed, 5 Ch. 4; Ex parte Williamson, ib. 309 (notwithstanding the 
 wording of the head-note in the latter case, see p. 3 J 2). 
 
 And in Ex parte Birmingham Banking Co., 6 Ch. 83, the Court of Ap" 
 peal held without hesitation that an incorporated company can prima 
 facia mortgage any part of its property, and this as well for an existing 
 debt as for a new loan. The articles of association authorized borrowing 
 on mortgage, but the Lords Justices did not stop to discuss whether this 
 would or would not include a mortgage to secure pre-existing debts (a), 
 resting this part of their decision on the general power of a body cor- 
 porate to " hold property and dispose of it as freely as an individnal, 
 unless it is specially prohibited from so doing" (James, L. J., at p. 
 87) (4). One may also refer to the view taken by Turner, L. J., that the 
 affirmative provisions of the Companies Clauses Act do not exclude other 
 modes of contracting: Wilson v. West Hartlepool Ry. Co., 2 D. J. S. 475, 
 496. 
 
 Lastly, we have the doctrine of general capacity deliberately adopted- 
 by the whole Court of Exchequer Chamber in Riche v. Ashbury Ry. Car- 
 riage Co., L R. 9 Ex, 254, sqq. The division of the Court was confined 
 to the questions (i) whether a company formed under the Companies 
 Act, 1862, is forbidden to undertake business substantially beyond its ob- 
 jects as defined in the memorandum of association and (ii) whether, 
 apart from this, an assent of all the shareholders could in this case be 
 inferred in fact. The decision of the House of Lords (L. R. 7 H. L, 653)» 
 disposes of these questions without touching the general doctrine. 
 
 Application of doctrines of partnership and agency. 
 A case in which this view appears most clearly, and indeed exclu- 
 sively, is Simpson v. Dennison, 10 Ha. 51 (c). The suit was instituted by 
 dissentient shareholders to restrain the carrying out of an agreement be- 
 tween their company (the Great Northern) and another railway com- 
 
 (a) As to which see Inns of Court Hotel Co., 6 Eq. 82. 
 
 (b) [Thompson i>. Lambert, 44 la. 239; Hays v. Gas- Light Co., 29 O. S. 330;. 
 Aurora, etc., Soc. v. Paddock, 80 111. 263; Barry v. Merchants' Exchange Co.,,1 
 Sandf. Ch. 280; Green's Brice's Ultra Vires, 223, note (a).] 
 
 <c) [See cases supra, p. 93, n. (c).] ■_ , 
 
 118 
 
CORPORATE POWERS : AUTHORITIES. 107 
 
 pany, by wh^ch the Great Northern was to take over the whole of 
 that company's traffic, and also to restrain the application of the 
 funds of the Great Northern Company for obtaining an Act of Parlia- 
 ment to ratify such agreement. The V.-C. Turner treated it as a 
 pure question of partnership :'" How would this case have stood" he 
 *says in the first paragraph of the judgment "if it had been the [107 
 case of an ordinary limited partnership ?" The Railways Clauses Consol- 
 idation Act became in this view a statutory form of partnership articles, 
 to which every shareholder must betaken to have assented: and the gen- 
 eral ground of the decision was that "no majority can authorize an appli- 
 cation of partnership funds to a purpose not warranted by the partnership 
 contract." For the purpose of the case before the Court this analogy 
 was perfectly legitimate; and the dissent expressed by Parke, B. (in 
 South Yorkshire, etc., Co. v. G. N. R. Co., 9 Eq. 88, 22 L. J. Ex. 315), must 
 be considered only as a warning against an unqualified extension of it to 
 questions between the corporate body and strangers. The rule comes out, 
 if possible, even more clearly in Pickering v. Stevenson, 14 Eq. 322, 340, 
 where it is thus set forth by Wickens, V.-C. " The principle of jurispru- 
 dence which I am asked here to apply is that the governing body of a cor- 
 poration that is in fact a trading partnership can not in general use the 
 funds of the community for any purpose other than those for which they 
 were contributed. By the governing body I do not of course mean exclu- 
 sively either directors or a general council (a), but the ultimate authority 
 within the society itself, which would ordinarily be a majority at a general 
 meeting. According to the principle in question the special powers given 
 either to the directors or to a majority by the statutes or other constitu- 
 ent documents of the association, however absolute in terms, are always 
 to be construed as subject to a paramount and inherent restriction that 
 they are to be exercised in subjection to the special purposes of the 
 original bond of association. 
 
 It is to be observed that this passage contains no indication of opinion 
 on the extent to which a corporation may be bound by the unanimovx as- 
 sent of its members. 
 
 Any dissenting stockholder may call for the assistance of the Court to-- 
 restrain unconstitutional acts of the governing body, but he must do so 
 in his proper capacity and interest as a shareholder and partner. If the 
 Court can see that in fact he represents some other interest, and has no 
 real interest of his own in the action, it will not listen to him (6), as when 
 the proceedings are taken by the direction of a rival company, in whose 
 hands the nominal plaintiff is a mere puppet, and which indemnifies him 
 against costs: Forrest v. Manchester, etc., Ry. Co., 4 D. F. J. 126: so- 
 where the suit was in fact instituted by the plaintiff's solicitor on grounds 
 
 ■ (a) Referring to the peculiar constitution of the company then in question. 
 
 (A) [Fenton v. Railroad Co., 54 Pa. St. 401, 452; Belmont v. Railroad Co., 52 
 
 Barb. 637.] 
 
 119 
 
108 CHAP. II. CAPACITY OF PARTIES. 
 
 of personal hostility, Robson v. Dodds, 8 Eq. 301. But if he has any real 
 interest, and is proceeding at his own risk, he is not disqualified from su- 
 108] ing by the fact *that he has collateral motives, or is acting on the 
 suggestion of strangers' or enemies to the company, or even has acquired 
 his interest for the purpose of instituting the suit: Colman v. B. C. Ry. 
 Co., supra; Seaton v. Grant, 2 Ch. 459; Bloxam v. Metrop. Ry. Co., 3 Ch. 
 337 (a). As a rule the plaintiff in actions of this kind sues on behalf of 
 himself and all other shareholders whose interests are identical with his 
 own; but there seems to be no reason why he should not sue alone in 
 those cases where the act complained of can not be ratified at all, or can 
 he ratified only by the unanimous assent of the shareholders; Hoole v. 
 G. W. Ry. Co., 3 Ch. 262 (4). There is another class of cases in which abuse 
 of corporate powers or authorities is complained of, but the particular act 
 is within the competence of, and may be affirmed or disaffirmed by " the 
 ultimate authority within the society itself" (in the words of Wickens, 
 V.-C, just now cited), and therefore the corporation itself is prima facie 
 the proper plaintiff. See Lindley 2. 935 sqq. Gray v. Lewis, 8 Ch. 1035, 
 1051; MacDougail v. Gardiner. 10 Ch. 606, 1 Ch. D. 13, 21; Russell v. 
 Wakefield Waterworks Co., 20 Eq. 474. "The majority are the only per- 
 sons who can complain that a thing which they are entitled to do has 
 been done irregularly" (c). The exception is when a majority have got 
 the government of the corporation into their own hands, and are using 
 the corporate name and power to make a profit for themselves at the ex- 
 pense of she minority [or where the directors refuse, on demand made, 
 to bring suit in the name of the corporation] ; then an action is rightly 
 brought by a. shareholder on behalf of himself and others, making the 
 ■company a defendant: Menier v. Hooper's Telegraph Works, 9 Ch. 
 350 (a). We mention these cases only to distinguish them from those 
 with which we are now concerned. 
 
 The cases in which companies and their directors have been restrained 
 by injunction at the suit of shareholders from unwarranted or (as we have 
 
 (a) [Railroad Co. v. Collins, 40 Ga. 582.] 
 
 (6) [Zabriskie v. Railroad Co., 23 How. 381, 395 ; Dodge v. Woolsey, 18 How. 
 .381, 343; Bliss v. Anderson, 31 Ala. 612.] 
 
 (c) Meilish, L. J., 1 Ch. D. at p. 25. [Dudley v. Kentucky High School, 9 
 Bush, 576.] As to a shareholder's right to use the company's name as plaintiff, 
 see Pender v. Lushington, 6 Ch. D. 70; Duckett v. Gover, lb. 82; [Silk .Vanfg. 
 Co. v. Campbell, 3 Dutch. 539; Silber Light Co. ■». Silber, 12 Ch. D. 717. j 
 
 (d) [Mason v. Harris, 11 Ch. D. 97; Dodge u. Woolsey, 18 How. 331; Cook 
 ■v. Berlin W. M. Co., 43 Wis. 433 ; Davenport «. Do*s, 18 Wall. 626; Heath v. 
 Railway Co., 8 Blatchf. 347; Rogers ». Lafayette Agricultural W'k's, 52 Ind. 
 296; Brewer v. Boston Theater Co., 104 Mass. 378; Peabody v. Flint, 6 Allen, 
 52; Wright v. Or'oville Mining Co., 40 Cal. 20; French v. Gifford, 30 la. 148; 
 March v. Railroad Co., 40 N. H. 548; Cogswell v. Bull, 39 Cal. 320; Sears v. 
 Botchkiss. 25 Conn. 171 ; Green's Brice's Ultra Vires, 645, note (a).] 
 
 120 
 
CORPORATE POWERS : AUTHORITIES. 109 
 
 iilready taken leave to call them) unconstitutional proceedings, are col- 
 lected and digested by Mr. Justice Lindley in a passage (2. 1059) to which 
 -the reader is referred for detailed information. With regard to the doc- 
 trine of limited agency, and to its peculiar importance in the case of 
 -companies constituted by public documents, all persons dealing with 
 them being considered to know the contents of those documents and the 
 limits set to the agent's authority by them, this subject again is so com- 
 pletely dealt with by Mr. Justice Lindley (a) that we need not dwell on 
 it at any length. It may be useful to give Lord Hatherley's concise 
 statement of the law (when V.-C.) in Fountaine v. Carmarthen Ry. Co., 5 
 Eq. 316. 3'22. 
 
 "In the case of a registered joint-stock company all the world of 
 -*course have notice of the general Act of Parliament and of the [109 
 special deed which has been registered pursuant to the provisions of the 
 Act, and if there be any thing to be done which can only be done by the 
 directors under certain limited powers, the person who deals with the di- 
 rectors must see that those limited powers are not being exceeded. If, 
 ■on the other hand, as in the case of Royal British Bank v. Turquand (h) 
 the directors have power and authority to bind the company, but certain 
 -preliminaries are required to be gone through on the part of the com- 
 pany before that power can be duly exercised, then the person contracting 
 with the directors is not bound to see that all these preliminaries have 
 heen observed. He is entitled to presume that the directors are acting 
 lawfully in what they do (c). That is the result of Lord Campbell's 
 judgment in Royal British Bank v. Turquand." 
 
 The contrast of the two classes of cases is well shown in Royal British 
 Bank v. Turquand (supra) and Balfour v. Ernest, 5 C. B. N. S. 601, 28 L. 
 -J. C. P. 170. In the former case there was power for the directors to 
 borrow money if authorized by resolution ; and it was held that a creditor 
 taking a bond from the directors under the company's seal was not bound 
 to inquire whether there had been a resolution. Jervis, C. J., said in the 
 Exchequer Chamber (the rest of the Court concurring) : 
 
 " We may now take for granted that the dealings with these companies 
 are not like dealings with other partnerships, and that the parties dealing 
 with them are bound to read the statute, and the deed of settlement. 
 But they are not bound to do more. And the party here on reading the 
 ■deed of settlement would find not a prohibition from borrowing, but a 
 ^permission to do so on certain conditions.'' 
 
 The same principle has been followed in many later cases (Ex parte 
 Eagle Insurance Co., 4 K. & J. 549, 27 L. J. Ch. 829; Campbell's ca., etc., 
 9 Ch. 1, 24: Totterdell v. Fareham Brick Co., L. R. 1 C. P. 674; Re County 
 JLife Assce. Co., 5 Ch. 288, a very strong case, for the persons who issued 
 
 (a) 1.266-272, 351. 
 
 (A) 5 E. & B. 248, 6 Ibid. 327; 24 L. J. Q. B. 327, 25 Ibid. 327 
 
 tc) TSee supra, p. 94.] 
 
 121 
 
110 CHAP. II. CAPACITY OF PARTIES. 
 
 the policy were assuming to carry on business as directors of the company 
 without any authority at all) and it has been decisively affirmed by the 
 House of Lords in Mahony v. East Holyford Mining Co., L. R. 7 If. L.. 
 869. In that case a bank had honored checks drawn by persons acting: 
 as directors of the company, but who had never been properly appointed ; 
 and these payments were held to be good as against the liquidator, the- 
 dealings having been on the face of them regular, and with de facto officers 
 of the company. Shareholders who allow persons to assume office and 
 conduct the company's business are, as against innocent third persons, 
 110] *no less bound by the acts of these de facto: officers than if they 
 had been duly appointed. It is for the shareholders to see that unau- 
 thorized persons do not usurp office and that the business is properly- 
 done (a). 
 
 In Balfour v. Ernest the action was on a bill given by directors of an 
 insurance company for a claim under a policy of another company, the- 
 two companies having arranged an amalgamation; this attempted amal- 
 gamation however had been judicially determined to be void; Ernest v. 
 Nicholls, 6 IT. L. C. 401, revg. S. C. nom. Port of London Co.'s case, 5 D. 
 M. G. 465. The directors had power by the deed of settlement to borrow 
 money for the objects and business of the company and to pay claims on 
 policies granted by the company, and they had a power to make and ac- 
 cept bills, etc., which was not restricted in terms as to the objects for 
 which it might be exercised. It was held that, taking this with the other 
 provisions of the deed, they could bind the company by bills of exchange- 
 only for its ordinary purposes, and not in pursuance of a void scheme of 
 amalgamation, that the plaintiffs must be taken to have known of their- 
 want of authority, which might have been ascertained from the deed, 
 and that they therefore could not recover. " This bill is drawn by pro- 
 curation," said Willes, J., "and unless there was authority to draw it the- 
 company are not liable (b) . . . this is the bare case of one taking a 
 bill from Company A. in respect of a debt due from Company B., there- 
 being nothing in the deed (which must be taken to have been known to- 
 the plaintiffs) to confer upon the directors authority to make it." (c). 
 
 (n.) Opinions of judges, at p. 880; per Lord Hatherley, at pp. 897-8.- [Lov- 
 ett «. German Reformed Chuich, 12 Barb. 67, 81; Sampsons. Bowdoinham, 
 etc., Corp., 36 Me. 78; Merchants' Bank v. State Bank, 10 Wall. 604, 644; Sus- 
 quehanna, etc., Co. v. Insurance Co., 3 Md. 305.] 
 
 (b) In form it wa9 a bill drawn by two directors on the company's cashier,. 
 and sealed with the company's seal. ["An order or bill of exchange drawn by 
 a person on himself may be regarded as his promissory note, and may be de- 
 clared on and treated as such, and this rule is applied to corporations when an 
 order has been drawn by one officer thereof on another ;" Eailroad Co. v. West,, 
 37 Ind. 211, 216 ; Clarke v. Desmoines, 19 la. 199; Fairchild v. Railroad Co., 15- 
 1ST. Y. 337."] -,-.'..:....,, 
 
 (c) [See Bank v. U. S. Pottery Co., 34 Vt. 144.] 
 
 122 
 
CORPORATE POWERS: AUTHORITIES. HI' 
 
 The connection with ordinary partnership law is brought out in the in- 
 troductory part of Lord Wensleydale's remarks in Ernest v. Nicholls (6 
 H. L. C. 401, 417): 
 
 " The law in ordinary partnerships, so far as relates to the powers of 
 one partner to bind the others, is a branch of the law of principal and 
 agent. Each member of a complete partnership is liable for himself, and 
 as agent for the rest binds them, upon all contracts made in the course 
 of the ordinary scope, of the partnership business. . . . Any restric- 
 tion upon the authority of each partner, imposed by mutual agreement 
 among themselves, could not affect third persons, unless such persons had 
 notice of them ; then they could take nothing by contract [sc. as against 
 the firm] which those restrictions forbade. [The law in this form, i.e.,' 
 the presumption of every partner being the agent of the firm, being 
 obviously inapplicable to joint-stock companies], the legislature then 
 devised the *plan of incorporating these companies in «, manner [111 
 unknown to the common law, with special powers of management and 
 liabilities, providing at the same time that all the world should have 
 notice who were the persons authorized to bind all the shareholders by 
 requiring the co-partnership deed to be registered . . . and made ac- 
 cessible to all." The continuation of the passage is given by Mr. Justice 
 Lindley (1,266); its language is, however, extra-judicial and of an almost 
 dangerous latitude, and the Courts have distinctly declined to adopt it 
 ,(Agar u. Athenseum Life Assce. 8oc, 3 C. B. N. S. 725, 27 L. J. C. P. 95; 
 Prince of Wales Assce. Co. v. Harding, E- B. & E. 183, 27 L. J. Q. B. 297). 
 In fact they could not have done so without disregarding Royal British 
 Bank v. Turquand. 
 
 We now pass on to the cases which show how far transactions in the con- 
 duct of a company's affairs which in their inception were invalid as against 
 any dissenting shareholder may nevertheless' be made binding on the 
 partnership and decisive of its collective rights (at all events as between 
 the company and its own past or present members) by the subsequent as- 
 sent of all the shareholders, though such assent be informal and shown 
 only by acquiescence. The leading examples on this head are given by 
 the well-known cases in the House of Lords which arose in the winding- 
 up ot the Agriculturists' Cattle Insurance Company. 
 
 They have been relied on as authorities for the proposition that the 
 unanimous assent of shareholders may bind a company in its corporate - 
 capacity to any thing : but since the decision of the House of Lords in 
 Ashbury Ey. Carriage & Iron Co. v. Riche, L. R. 7 II. L. 653, this view is 
 untenable. " In no one of those cases," observed Lord Cairns, " was there 
 any question as to whether the power of the whole company had been 
 exceeded " (L. R. 7 H. L. 674). The whole matter was one of the internal 
 constitution and affairs of the company, and there was no occasion to con- 
 sider to what extent or in what transactions the assent of shareholders- 
 was capable of binding the company as against strangers, > Moreover, the^ 
 irregular act which was ratified was unauthorized as to the manner ancfc. 
 
 123 
 
112 CHAP. II. CAPACITY OF PARTIES. 
 
 form of it, but belonged to an authorized class as pointed out by Lord 
 Romilly (L. R. 3 H. L. 244-5) (a). The general nature of the facts was 
 thus: At a meeting of the company an arrangement was agreed to, after- 
 wards called the Chippenham arrangement, by which shareholders who 
 elected to do so within a certain time might retire from the company on 
 specified terms by a nominal forfeiture of their shares. The deed of set- 
 tlement contained provisions for forfeiture of shares, but not such as to 
 warrant this arrangement. It was held — 
 
 112] *In Evans v. Smallcombe, L. R. 3 H. L. 249, that the Chippenham 
 arrangement could be supported [so., as having become part of the inter- 
 nal regulations of the company] only by the assent of all the shareholders, 
 but that in faet there was knowledge and acquiescence sufficiently prov- 
 ing such assent. A shareholder who had retired on the terms of the Chip- 
 penham arrangement was therefore not liable to be put on the list of con- 
 tributories. (Cp. Brotherhood's ca., 4 D. F. J. 566, an earlier and similar 
 -decision in the same winding-up.) 
 
 In Spackman v. Evans, lb., 171, that a later and distinct compromise 
 made with a smaller number of dissentient shareholders had not in fact 
 been communicated to all the shareholders as distinct from the Chippen- 
 ham arrangement, and could not be deemed to have been ratified by that 
 acquiescence which ratified the Chippenham arrangement; and that a 
 shareholder who had retired under this later compromise was therefore 
 righ tly made a contributory. 
 
 In Houldsworth v. Evans, lb., 263, that time was of the essence of the 
 Chippenham arrangement, so that when a shareholder was allowed to re- 
 tire on the terms of the Chippenham arrangement after the date fixed 
 for members to make their election, this, in fact, amounted to a distinct 
 and special compromise which ought to have been specially communi- 
 cated to all the shareholders : this case therefore followed Spackman v. 
 Evans (b). Cp. Stewart's ca. 1 Ch. 511. 
 
 The question of the shareholders' knowledge or assent in each case in- 
 volved delicate and difficult inferences of fact, and on these the opinions 
 of the Lords who took part in the decisions were seriously divided. It 
 may perhaps also be admitted that on some inferences of mixed fact and 
 law there was a real difference; but it may safely be affirmed that on any 
 pure question of law there was none (c). These cases appear to establish 
 in substance the following propositions : (1). For the purpose of binding 
 a company as against its own shareholders, irregular transactions of an 
 .authorized class may be ratified by the assent of all the individual share- 
 
 (a) See also the judgment of Archibald, J., in Riche v. Ashbury Ry. Carriage 
 -Co., L. R., 9 Ex. 289. 
 
 (b) A more detailed account is given in Lindley on Ptnp. 1. 763. See also- 
 .X. R., 7 C. P. 51-2, and note the remark of Willes, J., p. 53 
 
 (c) See per Willes, J., L. R., 7 0. P. 60. 
 
 124 
 
CORPORATE POWERS : AUTHORITIES. 113 
 
 holders. (2). Such assent must be proved as a fact. Acquiescence with 
 knowledge or full means of knowlege may amount to proof of assent, and 
 lapse of time though not conclusive is material. The converse proposi- 
 tion that the assent of a particular shareholder will bind him to an irregu- 
 lar transaction as against the company is likewise well established, but- 
 does not fall within our present scope. See Campbell's ca. etc., 9 Ch. 1. 
 
 The later case of Phosphate of Lime Co. v. Green, L. L. 7 C. 1 J . iii, was 
 of much the same kind though in a different form. The action *was [113 
 by the company against past shareholders for a debt, and the defense 
 rested on an accord and satisfaction which hnd been effected by an ir- 
 regular forfeiture of the defendant's shares, and which in the result was 
 upheld on the ground of the shareholder's acquiescence. There is noth- 
 ing to throw any light on the question whether in the case of a trading 
 company formed under the Companies Act, 1862, there is any class of acts 
 which not even the unanimous assent of shareholders can ratify: it was 
 not necessary to consider the existence of such a distention, nor was it 
 brought to the attention of the Court. Note that the difficulty as to in- 
 ferences of fact was much less than in the cases before the House of Lords, 
 as the Court had to say, not whether there had been acquiescence, but 
 whether there was evidence from which a jury might reasonably have 
 found acquiescence (see pp. 61-62 (a). 
 
 It is not contended, however, that these authorities have no applica- 
 tion except in closely similar cases of arrangements relating to the in- 
 ternal affairs of companies, but only that in themselves they do not 
 decide more than we have stated, and leave it open how far their appli- 
 cation is to be extended. There seems to be no reason why the same 
 principles should not apply to dealings between the corporation and. 
 strangers, except so far as it is controlled by positive corporate disabilities 
 imposed by the policy of the Legislature. 
 
 Doclrine of public policy. 
 
 In E. C. Ey. Co. v. Hawkes, 5 H. L. C. 331, Lord Cranworth, who, as we 
 have seen, was a decided upholder of the prima facie unlimited ca~ 
 pacity of corporations, after citing Coleman v. E. C. Ry. Co., Salomons v. 
 Laing, Bagshaw v. E. Union Ry. Co. (see above p. 100, 101), expressed him- 
 self as follows : — " It must be now considered as a well settled doctrine 
 that a company incorporated by Act of Parliament for a special purpose 
 can not devote any part of its funds to objects unauthorized by the terms- 
 of its incorporation, however desirable such an application may appear- 
 to be." In this case the disputed contract was held good, and the dis- 
 tinction was pointed out between an act which is forbidden or illegal in 
 itself, e.g., obstructing a navigable river by building a bridge across it as 
 in Mayor of Norwich v. Norfolk Ry. Co., 4 E. & B. 397, and an act which 
 is merely unauthorized as between directors and shareholders. A pretty- 
 full account of this case is given in the judgmant of Blackburn, J., In, 
 
 (a) See further on the subject of ratification by companies, Lindley, 1. 273-7 _ 
 
 125 
 
114, 115 CHAP. II. CAPACITY OP PARTIES. 
 
 Taylor v. Chichester & Midhurst Ry. Co., L. R. 2 Ex. 356, 386-9; and the . 
 effect of the doctrine of public policy in imposing restrictions on cor- 
 114] porate action which are *beyond and independent of the rights of 
 individual shareholders, and which, therefore, their .assent is powerless 
 to remove, is explained in a subsequent passage of the same judgment, 
 which points out that in incorporating a company the Legislature has 
 two distinct purposes, the convenience of the shareholders and the ben- 
 efit of the public. Every shareholder has rights against the corporation 
 analogous to those of partners between themselves, and may object to 
 unauthorized acts being done. These individual rights, however, may be 
 waived. But if the legislature actually forbids the company to enter 
 upon certain transactions, then no assent will make such transactions 
 binding. Whether such a prohibition exists depends in each case on the 
 •construction of the statute (pp. 378-9). 
 
 How far the Court should be guided in the construction of such statutes 
 by the consideration of the general policy of such legislation is a ques- 
 tion on which there has been much difference of opinion. 
 
 We have already referred shortly to Ashbury Ry. Carriage Co. v. Riche. 
 In this case the distinct question arose (for the first time it is believed), 
 whether the Companies Act, 1862, does or does not forbid a company 
 formed under it to bind itself by contract to an undertaking beyond the 
 purposes specified in the memorandum of association. The 12th sec- 
 tion of the Act says that a company shall not alter its memoran- 
 dum of association except in certain particulars as to capaital and 
 shares (a); the Exchequer Chamber was equally divided as to the effect 
 of this. Blackburn, Brett and Grove, JJ., were of opinion that it did not 
 amount to making companies incapable of binding themselves to any 
 thing beyond the scope of the memorandum; Archibald, Keating and 
 Quain, JJ., held that it did. They thought it to be " the policy as well as 
 the true construction" of the-aet '' to ignore (so to speak) the existence 
 of the corporation and the power of the shareholders, even when unani- 
 mous, to contract or act in its name for any purpose substantially beyond 
 or in excess of its objects as defined by the memorandum of association" 
 (p. 291). Admitting that a corporation has prima facie as incident at 
 Common Law the large powers laid down in the Sutton's Hospital case, 10 
 Co. Rep. 30 J, and citing the statement of the law by Lord Cranworth in 
 Shrewsbury and Birmingham Ry. Co. v. N. W. Ry. Co. (given above, p. 
 104) the judgment of Archibald, J. (L. R. 9 Ex. pp. 292-3), proceeds to 
 say that " the presumption of a prima facie general authority to contract" 
 is rebutted by the " express provision that the scope and objects of the 
 company as originally declared by its memorandum of association shall be 
 115] unchangeable." The corporation may be regarded *as non-existent 
 for the purpose of contracts beyond these objects; and if so, the individ- 
 ual assents of all the shareholders can not give the ideal legal body of the 
 
 (a) Extended by the Act of 1867, ss. 9, sqq., 21, but only to otlior matters of 
 tthe like sort. 
 126 
 
CORPORATIONS AND NEGOTIABLE INSTRUMENTS. 115 
 
 -corporation a capacity of which the legislature has deprived it, so as to 
 render an agreement substantially beyond the defined objects " a contract 
 of the ideal legal body, which exists only as a corporation, and with pow- 
 ers and capacity which are thus admittedly exceeded." 
 
 This opinion was confirmed by the unanimous decision of the House 
 
 -of Lords, L. R. 7 IT. L. 653, which proceeds not so much on any one sec- 
 tion as on the intention of the Act appearing from its various provisions 
 taken as a whole. The existence and competence of the company are 
 limited by the memorandum of association, which is " as it were the area 
 beyond which the action of the company can not go" (Lord Cairns, at 
 p. 671). Precisely analogous questions are not likely to arise very 
 often {a), but the decision lays down with sufficient plearness the lines 
 that must henceforth be followed in the treatment of the law. 
 
 It is not proposed to enter on any further discussion of the par- 
 ticular contracts which particular corporate bodies have been held 
 incapable of making. One class of contracts, however, is in a 
 somewhat peculiar position in this respect, and requires a little sep- 
 arate consideration. We mean the contracts expressed in negotia- 
 ble instruments and governed by the law merchant. It is said and 
 truly said that as a general rule a corporation can not bind itself 
 by a negotiable instrument (b). The origin and meaning of the 
 rule are easily misapprehended. At first sight it looks like an ob- 
 vious deduction 'rom the doctrine of limited speekil capacities. If 
 a corporation can only make such contracts as it is empowered to 
 make, then it follows of course that among other things it can not 
 issue bills or notes without express or implied authority to do so ; 
 
 (a) See per Blackburn, J., L. R. 9 Ex. 271. 
 
 (b) [In the United States, on the contrary, "no question is better settled upon 
 •authority than that a corporation, not prohibited by law from doing so, and 
 without any express power in its charter for that purpose, may make a nego- 
 tiable promissory note payable either at a future day, or upon demand, when 
 such note is given for any of the legitimate purposes for which the company 
 was incorporated." Moss v. Averill, 10 N. Y. 449, 457 ; Railroad Co. v. How- 
 ard 7 "Wall. 392,412; Davis v. Building Union, 82 Md. 285; Barry v. Mer- 
 chants' Bxch. Co., 1 Sandf. Ch. 280; Bank v. Jacobs, 6 Humph. 515; Preston. 
 v. Missouri, etc., Lead Co., 51 Mo. 43 ; Oxford Iron Co. v. Spradley, 46 Ala. 98. 
 
 "Where a corporation has power to issue bills and notes under any circum- 
 stances, a bona fide holder may rely on the presumption that they were right- 
 fully issued. Supervisors v. Schenk, 5 Wall. 772, 784 ; Lexington v. Butler, 14 
 "Wall. 282; Bank v. Globe "Works, 101 Mass. 57; Bissell v. Railroad Co., 22 
 N. Y. 258. 289 ; Stoney v. Insurance Co., 11 Paige, 635,; Banking Ass'n. v. White 
 Lead Co., 35 N. Y. 605; Railroad Co. v. Norwich, etc., Society, 24 Ind. 457; 
 County of Macon v. Shores, 97 U. S. 272, 278; supra p. 94, note (a!).] 
 
 127 
 
116 CHAP. II. CAPACITY OF PARTIES. 
 
 but. we have seen that this ground is now hardly tenable. In order 
 to state what we believe to be the true view we must to some extent 
 anticipate the subject of the following chapter, so far as it relates' 
 to the form of corporate contracts. The general rule is that the 
 contracts of a corporation must be made under its common seal, 
 and it follows that a corporation can not prima facie be bound by 
 negotiable instruments in the ordinary' form. The only early au- 
 thority which is really much to the point was argued and partly 
 decided on this footing (a). 
 
 11(5] *Of late years incorporated companies have issued documents- 
 under seal purporting to be negotiable; but by the law merchant 
 an instrument under seal can not be negotiable, and it is the better 
 opinion that the fact of the seal being a corporate one makes no 
 difference (b) ; it can riot be taken as merely equivalent to signa- 
 ture because the party sealing is an artificial person and unable to- 
 sign (c). Putting this last question aside, however, there are very 
 many matters about which a corporation can contract without seal, 
 nnd in particular in the case of a trading corporation all things- 
 naturally incident to the business it carries on. Why should not 
 the agents who are authorized to contract on behalf of the com- 
 pany in the ordinary course of its business be competent to bind 
 the company by their acceptances, etc., on its behalf just as a mem- 
 ber of an ordinary trading partnership can bind the firm? There- 
 is a twofold answer to this question. First, the extensive implied 
 authority of an ordinary partner to bind his fellows can not be ap- 
 plied to the case of a numerous association, whether incorporated 
 or not, whose members are personally unknown to each other, and 
 it has been often decided that the managers of such associations can 
 
 (a) Broughton v. Manchester "Waterworks Co., 3 B. & Aid. 1. The chief 
 point was on the statutes giving the Bank of England exclusive rights of issu- 
 ing notes, etc., within certain limits, as to which see Lindley, 1. 191, note. In 
 Murray v. E. India Co., 5 B. & Aid. 204, the statutory authority to issue bills was 
 not disputed ; a difficulty was raised as to the proper remedy, but disposed of in 
 the course of argument (p. 210). Other cases at first sight like these relate to 
 the authority of particular agents to bind a corporate — or unincorporated — as- 
 sociation irrespective of the theory of corporate liabilities. See note (a) next 
 pr.-e. 
 
 (b) [The contrary is the rule in the United States. Mercer County v. Hack- 
 ett, 1 Wall. 83, 95; Boyd v. Kennedy, 38 H. J. L. 146; Griffith o. Burden, 35- 
 Ia. 138; Green's Brice's Ultra Vires, 268, note (o).] 
 
 (c) Crouch v. Credit Eoncier, L. E. 8 Q. B. 874. 
 
 128 
 
CORPORATIONS AND NEGOTIABLE INSTRUMENTS. 117 
 
 not bind the individual members or the corporate body, as 'the case 
 may be, by giving negotiable instruments in the name of the con- 
 -cern, unless the terms of their particular authority enable them 
 to do so by express words or necessary implication (a). -In the 
 case of a corporation this authority must be sought in its con- 
 stitution as set forth in ,its special Act, articles of association, or 
 the like. Secondly, the power of even a trading corporation to con- 
 tract without seal is limited to things incidental to the usual conduct 
 •of its business. But as was pointed out by a judge who was [117 
 certainly not disposed to take a narrow view of corporate powers, 
 a negotiable instrument is not merely evidence of a contract, but 
 -creates a new contract and a distinct cause of action, and "it 
 would be altogether contrary to the principles of the law which regu- 
 lates such instruments that thej r should be valid or not according 
 as the consideration between the original parties was good or bad ;" 
 and it would be most inconvenient if one had in the case of a cor- 
 poration to inquire " whether the consideration in respect of which 
 the acceptance is given is sufiiciently connected with the purposes 
 for which the acceptors are incorporated " (b). 
 
 The result seems to be that a corporation can not be bound by 
 negotiable instruments, except in one of the following cases : — 
 
 1. When the negotiation of bills and notes is itself one of the 
 purposes for which the corporation exists — "within the very scops 
 and object of their incorporation " (c) — as with the Bank of Eng- 
 land and the Bast India Company, and (it is presumed) financial 
 
 ■ companies generally, and perhaps even all companies whose busi- 
 ness wholly or chiefly consists in buying and selling (c). 
 
 2. When the instrument is accepted or made by an agent for the 
 -corporation whom its constitution empowers to accept bills, etc., 
 -on its behalf either by express words or by necessary implication. 
 
 (a) As to unincorporated joint stock companies, Neale v. Turton, 4 Bing. 
 149; Dickinson v. Valpy, 10 B. & C. 128; Bramah v. Roberts, 3 Bing. (N. (J.) 
 
 •963; Cult v. Morrel, 12 A. & E. 745 ; Brown v. Byers, 16 M. & W. 252. As to 
 incorporated companies, Steele, v. Harmer, 14 M.'& W. 831 (in Ex. Cb. 4 Ex. ], 
 not on this point); Thompson v. Universal Salvage Co., 1 Ex. 694; Re Peruvian 
 Rys. Co., 2 Cb. 617 ; cp. Ex parte City Bank, 3. Ch. 758, per Selwyn, L. J. The 
 last two cases go rather iar in the direction of implying such a power from 
 
 -general words. 
 
 (b) Per Erie, C. J., Bateman v. Mid. Wales Ky. Co., L. R. 1 C. P. 499, 509. 
 
 (c) Per Montague Smith, J., L. R. 1 C. P. 512 ; Ex parte City Bank, 3 Ch. 
 
 •758. 
 
 129 
 
118 CHAP. II. CAPACITY OF PARTIES. 
 
 The extent of these exceptions can not be said to be very pre- 
 cisely defined, and in framing' articles of association, etc., it is- 
 therefore desirable to insert express and clear provisions on this 
 head. 
 
 In America the Supreme Court has lately decided that local au- 
 thorities having the usual powers of administration and local taxa- 
 tion have not any implied power to issue negotiable securities 
 which will be indisputable in the hands of a bona fide holder for 
 value (r/), and also (but not without dissent) that municipal cor- 
 118] porations have no such power ; " ihey are not trading *eor- 
 porations and ought not to become such" (b). It seems however 
 that in American courts a power to borrow money is held to carry 
 with it as an incident the power of issuing negotiable securities (<?). 
 The common law doctrine of estoppel (d), and the kindred equi- 
 na) Police Jury v. Britton, 15 Wallace, 506, 572. 
 
 (b) The Mayor v. Ray, 19 Wallace, 468. [The case can not be said to have- 
 docided the point for which.it is cited. Bradley, J., with, whom concurred 
 Miller, Davis, and Field, JJ., did hold that municipal corporations "have not 
 any implied power to issue negotiable securities which will be indisputable in 
 the bands of a bona fide holder for value." Hunt, J., who concurred with the 
 judges named, in a judgment of reversal, did so on the ground that the plaintiff" 
 was not a bona fide holder for value, but expressly dissented from the position 
 of Bradley, J., saying: "I hold it to be well established by the authorities that 
 a municipal corporation may borrow money for the legitimate use of the cor- 
 poration, and that it may issue its notes for the same, unless expressly prohib- 
 ited by its charter, or by statute from so doing. . . . That the securities 
 thus issued by municipal corporations are subject to the rules of commercial 
 law, when held by a bona fide holder, has been repeatedly held by this court. 
 Every recent volume of its reports contains authorities to this effect." Clifford, 
 Swayne, and Strorg, J J., dissented. The court was therefore equally divided 
 upon the question which below bad been resolved in favor of the existence of 
 the power. See further, on the one hand, Chisholm ». Montgomery, 2 Woods, 
 581, where Bradley, J., repeated the views expressed by him in Mayor v. Bay, 
 Hackettstown ads. Swackhammer, 37 N. J. L. 191 ; Gause v. Olarksville, C. C. 
 U. S. E. JDist. Mo., 7 Kep. 519; on the other, Williamsport v. Commonwealth,. 
 84 Pa. St. 487.] 
 
 (c) Police Jury v. Britton, 15 Wallace, 566. [Supra, p. 115, note (6).] 
 
 (d) Webb v. Heme Bay Commissioners, L. B. 5 Q. B. 642 ; [Pendleton County 
 v. Amy, 13 Wall. 297; Railroad Co. ». Howard, 13 How. 307,335; Railroad Co.. 
 v. Chatham, 42 Conn. 465 ; New England, etc., Co. o. Union, etc., Co., 4 Blatchf- 
 1; Railroad Co. v. Tipton, 6 Ala. 787, 808; Kneeland v. Gibson, 24 Wis. 39; 
 Hale v. Insurance Co., 32 N. H. 295.] 
 
 130 
 
CORPORATIONS AND NEGOTIABLE INSTRUMENTS. 118 
 
 table doctrine of part performance (a), apply to corporations as 
 well as to natural persons. Even when the corporate seal has been 
 improperly affixed to a document by a person who has the custody 
 of the seal for other purposes, the corporation may be bound by 
 conduct on the part of its governing body which amounts to an es- 
 toppel or ratification, but it will not be bound by any thing less (6). 
 The principles applied in such cases are in truth independent of 
 contract, and therefore no difficulty arises from the want of a con- 
 tract under the corporate seal, or non-compliance with statutory 
 forms. But it is conceived that no sort of estoppel, part perform- 
 ance, or ratification, can bind a corporation to a transaction which 
 the legislature has in substance forbidden it to undertake, or made 
 it incapable of undertaking. 
 
 (a) "Wilson v. West Hartlepool Ry. Co., 2 D. J. S. 475, 493, per Turner, L. J.; 
 Crook v. Corporation of Seaford, 6 Ch. 551 ; [Conant v. B. F. Canal Co., 29 Vt. 
 263.] 
 
 (i) Bank of Ireland v. Evans' Charities, 5 H. L. C. 389 ; [Hector, etc., 'of St,. 
 Bartholomew v. Wood, 80 Pa. St. 219.] 
 
 131 
 
"■119, 120 CHAP. III. FORM OF CONTRACT. 
 
 119] *CHAPTEE IH. 
 
 FORM OF CONTBACT. 
 
 According to the modern conception of contract, all agreements 
 which satisfy certain conditions of a general kind are valid con- 
 tracts and may be sued upon, in the absence of any special legisla- 
 tion forbidding particular contracts to be made or denying validity 
 to them unless made with particular forms. This theory finds a 
 concise and complete expression in s. 10 of. the Indian Contract 
 Act: 
 
 "All agreements are contracts [i.e., enforceable by law, s. 2, 
 sub. -s. A.] if they are made by the free consent of parties compe- 
 tent .to contract, for a lawful consideration and with a lawful ob- 
 ject, and are not hereby expressly declared to be void " (then 
 follows a clause saving all formalities required in particular cases 
 by the law of British India). So thoroughly has this conception 
 established itself in recent times that, having made the presence 
 of a consideration one of the general conditions of a valid con- 
 tract, we are now accustomed to bring contracts under seal within 
 the terms of the condition by saying that where a contract is un- 
 der seal the consideration is presumed. Historically speaking, this is 
 a transparent fiction. The doctrine of Consideration in its present 
 general form is of comparatively modern origin even if we look to 
 the history of English law alone. If we roughly put it half 
 way between ourselves and Bracton we shall probably be allowing 
 it as much antiquity as it can fairly claim. The ancient reason 
 why a deed could be sued upon lay not in a consideration in our 
 present sense of the word being presumed from the solemnity of 
 the transaction, but in the solemnity itself. The forms of sealing 
 120] and delivery come down to us from a time *when the gen- 
 eral theory of the law started from a different or even opposite 
 point to our own. The fundamental assumption of ancient law 
 (when it has got so far as to recognize contract at all) is that the 
 validity of a contract depends not" upon the substance of the trans- 
 action but upon its form. The rule is that formal contracts only 
 -can be sued upon : the want of any part of the formalities is fatal, 
 132 
 
FORMAL AND INFORMAL CONTRACTS IN ROMAN LAW. 121- 
 
 the fulfillment of them is conclusive (a). Not that we find this as 
 an existing state of things at any traceable period of Roman or 
 English law: considerable Classes of informal contracts are ex- 
 cepted on various grounds which are practically reducible to "con- 
 venience amounting almost to necessity:" a phrase which we 
 here introduce by anticipation from the modern learning as to the 
 informal contracts of corporations. When we come to that subject 
 in a later part of this chapter, the reader will find that the law re- 
 lating to the form of corporate contracts is still going through a 
 process of struggling development not altogether unlike that which 
 took place-^n earlier times with regard to the contracts of nat- 
 ural persons. Both in the .Roman law as presented to us in the 
 Digest and Institutes, and in the English law of the thirteenth, 
 and even down to the latter part of the fifteenth century, the ■ 
 primitive doctrine that formal contracts alone give rise to actions 
 is at the base of the whole learning of contracts. It is overlaid no 
 doubt with a series of exceptions — which in the English system, 
 so far as one can now judge, are decidedly narrower in statement 
 and less important in practice than in the Roman — but the except- 
 ions are not as yet connected by any recognized general principle. 
 
 In England we find this theory expressed by Bracton in , almost 
 purely Roman language (&) which is substantially repeated in 
 Fleta. How far the theory was directly borrowed, or how far it 
 already existed as a genuine parallel development of English legal 
 ideas with which the authorities of the civil law were found in 
 great measure to coincide, may perhaps be doubtful (c). At 
 any rate the correspondence is so closer that some statement of 
 *the Roman doctrine in its general effect is almost necessary [121- 
 to make its English counterpart intelligible (<2). 
 
 .Formal contracts (legitimae conventiones) gave a right of action • 
 
 (a) Maine, Ancient Law, 313 sqq. (4th ed.) 
 
 lb) In Britton the substantial correspondence remains, but the details are 
 much more modified to suit the real facts of English practice, e.g. the verbal i 
 Stipulation all but disappears (Cap. De Dette, 1. 156, ed. Nicholls). 
 
 [6) See Giiterbock, Henr. de Bracton, \ 18, p. .107-8, where the parallel is ac- - 
 curately stated. 
 
 (d) What follows is mostly abridged from Savigny, Obi. 2. 196 sqq. Sir H. 
 Maine's account in his chapter on the Early History of Contract is in close 
 agreement with Savigny's. Since the first edition of this book was published * 
 the derivation of the Stipulation from the Nexum has been contested with* 
 great ingenuity by Prof. Hunter (Roman Law, 364.) 
 
 133 
 
r 122 CHAP. III. FORM OF CONTRACT. 
 
 i irrespective of their subject-matter. In Justinian's time, the only 
 kind of formal contract in use was the Stipulation (a), or verbal 
 contract by question and answer, the question being put by the 
 creditor and answered by the debtor (as Darj spondes? spondeo: 
 Promittis? promitto: Facies? faciam). Originally the question 
 
 . and answer had been accompanied bj T the symbolic transaction of 
 Nexum, and there is reason to think that the Stipulation was at 
 first confined to loans of money (b). But the JVexum was abol- 
 ished, and the Stipulation (possibly after going tbrough a stage in 
 which there was a fictitious loan) remained as a formal contract 
 capable of being applied to any kind of subject-matter at the 
 pleasure of the parties (c). Its application was in course of time 
 extended by the following steps. 1. The question and answer 
 were not required to be in Latin (d). 2. An exact verbal corres- 
 pondence between them was not necessary (e). 3. (which for our 
 present purpose is the most important) an instrument in writing 
 purporting to be the record of a Stipulation was treated as strong 
 
 • evidence of the Stipulation having actually taken place (f). (The 
 notion sometimes met with that if a contract by verbal question 
 and answer was good, a contract in writing must be good a fortiori, 
 is of course a mere modern invention.) 
 
 122] ^Informal agreements (pacta) did not give any right of 
 action without the presence of something more than the mere fact 
 of the agreement. This something more was called causa. Prac- 
 tically the term covers a somewhat wider ground than our <: con- 
 sideration executed :" but it has no general notion corresponding 
 to it, at least none co-extensive with the notion of contract; it is 
 simply the mark, whatever that may be in the particular case, 
 
 (a) The literarum obligatio (Gai. 3. 128) was obsolete. What appears under 
 that title in the Institutes (3. 21) is a general rule of evidence, unconnected 
 with the ancient usage. 
 
 (b) Sav. Syst. 5. 532-40. 
 
 (c) In a modern English book, which has gone through several editions, we 
 find the astonishing statement that the Stipulatiqn "was entered into before a 
 -magistrate or public officer through the medium of interrogatories and answers 
 
 (sic) calculated to explain the nature and extent of the undertaking." The 
 identification of a deed with literarum obligatio (Co. Lit. 1716) is nothing to 
 ..-this. 
 
 (d) Gai. 3. 93, 1. 3. 15, de v. o. j) 1. 
 
 (e) C. 8. 38. de cont. et comm. stipul. 10. 
 
 {/) C. 8. 38. de cont. et comm. stipul. 14, 1. 3. 19. de inut. stipul. § 12. 
 134 . 
 
ROMAN LAW. 123 
 
 "which distinguishes any particular class of agreements from the 
 ■common heard of pacta and makes them actionable. Informal 
 agreements not coming within any of the privileged classes were 
 -called nuda pacta and could not be sued on (a). 
 
 The further application of this metaphor by speaking of the 
 causa when it exists as the clothing or vesture of the agreement is 
 without classical authority but very common : it is adopted to the 
 full extent by our own early writers (6). The metaphor is in it- 
 self natural enough, and not confined to legal usage : in the late 
 Sir H. Holland's posthumous essays we read of "a naked inference 
 now clothed with a positive cause " by the discoveries of spec- 
 trum analysis. 
 
 The term nudum pactum is sometimes used, however, with a 
 special and rather different meaning, to express the rule of the 
 <}ivil law that a contract without delivery will not pass property (c). 
 
 The privileged informal contracts were the following: («) Real 
 contracts, where the causa consisted in the delivery of money or 
 goods ; namely, mutui datio, commodatum, depositum, pignus : corres- 
 ponding to our bailments. This class was expanded within histori- 
 cal times to cover the so-called innominate contracts denoted by 
 the formula Do ut des, etc. (d), so that there *was an en- [123 
 forceable obligation re contracta wherever, as we should say, there 
 was a consideration executed: yet the procedure in the different 
 classes of cases was by no means uniform (e). (/?) Consensual con- 
 tracts, being contracts of constant occurrence in daily life in which 
 
 (a) They gave rise, however, to imperfect or "natural" obligations, which 
 had other legal effects. 
 
 (J) "Obligatio quatuor species habet quibus contrahituret plura vestimenta," 
 Bracton, 99a. " Obligaeioun deit estre vestue de v: raanores de garnisementz," 
 Britton 1. 156. Austin (2. 1010, 3d ed.) speaks per incuriam of the right of ac- 
 tion itself, instead of that which gives the right, as being the "clothing." 
 
 (c) Austin, 2. 1002, Traditionibus et usucapionibus dominia rerum, non 
 nudis pactis, transferuntur. Cod. 2. 3. de pactis, 20. But the context is not 
 preserved, and the particular pactum in question may perhaps have been nudum 
 in the general sense too. 
 
 (id) Aut enim do tibi, ut des, aut do ut facias, aut faoio ut des, aut facio ut 
 facias ; in quibus quaeritur quae obligatio nascatur. D. 19. 5. de praescr. , 
 verbis, 5 pr. and see Vangerow, Pand. g 599 (3. 234, 7th ed.) Blackstone ; 
 {Coram. 2. 444) took this formula for a classification of all valuable considera- 
 tions, and his blunder bas been copied without reflection by later writers. 
 
 («) Dig. I.e., \l 1-4. 
 
 135 
 
124 CHAP. III. FORM OF CONTRACT. 
 
 no causa was required beyond the nature of the transaction itself. 
 Four such contracts were recognized • from the earliest times of 
 which we know any thing, namely, Sale, Hire, Partnership, and 
 Agency. (Emtio Venditio, Locatio Conductio, Societas, Manda- 
 tum.) To this class great additions were made in later times. 
 Subsidiary contracts (pacta adjecta) entered into at the same time 
 and in connection with contracts of an already enforceable class be- 
 cause likewise enforceable: and divers kinds of informal contracts 
 were specially made actionable by the Edict and by imperial con- 
 stitutions, the most material of these being the constitutum, cover- 
 ing the English heads of account stated and guaranty (a). Even 
 after all these extensions, however, matters stood thus : " The Stip- 
 ulation, as the only formal agreement existing in Justinian's time, 
 gave a right of action. Certain particular classes of agreements 
 also gave a right of action even if informally made. All other in- 
 formal agreements (nuda pacta) gave none. This last proposition, 
 that nuda pacta gave no right of action, may be regarded as the- 
 most characteristic principle of the .Roman law of Contract" (6). 
 "We may now see the importance of bearing in mind that in Ro- 
 man, and therefore also in early English law, nudum pactum does- 
 not mean an agreement made without consideration. 
 
 So far the Roman theory. When it came to be adopted or re- 
 vived in Western Christendom, .what happened in Germany was r 
 according to Savigny, that the form of the Stipulation being for- 
 eign and unsupported by any real national custom like that whicb 
 kept it alive among the Romans, never found its way into prac- 
 tice : and as there was nothing to put in its plaee, the distinction 
 between formal and informal agreements disappeared (c). The- 
 conclusion is that in the modern Roman law of Germanythe 
 requirement of causa does not exist. .But this conclusion is- 
 by no means undisputed; in fact there is a decided conflict of 
 124] *opinion among modern writers, though the greater weight 
 of authorities appears to be for the proposition here stated. It has 
 even been maintained that a causa was required for the full valid- 
 ity of a Stipulation in the Roman law itself (d). Something of 
 the same kind seems to have happened in Scotland; where no con- 
 
 (a) The establishment of emphyteusis as a distinct species of contract is or 
 minor importance for our present purpose. 
 
 (6) Sav. Obi. 2. 231. (c) Sav. Obi. 2. 239. 
 
 (d) See Vangerow, Pand. \ 600 (3. 244). 
 136 
 
OLD ENGLISH LAW. I25» 
 
 pideration is needed to make a contract binding : this is qualified 
 however by the rule that a gratuitous promise can not be proved 
 by oral evidence but only by writing (a). In French jurispru- 
 dence on the other hand the Soman causa has persisted (though 
 in a pretty liberal interpretation) as a needful ingredient of every 
 binding contract. Instead of pacta becoming legitimae conven- 
 tiones, the let/itimae conventiones have simply vanished. We shall 
 see more of this in the next chapter. 
 
 But our English authors did find something to put in the 
 place of the Stipulation: namely the solemnities of a deed. Brac- 
 ton after setting forth almost in the very words of the Institutes- 
 how " Verbis contrahitur obligatio per stipulationem" (6), etc., 
 adds : " Et quod per scripturam fieri possit stipulatio et obligatio- 
 videtur, quia si scriptum fuerit in instrnmento aliquem promis- 
 isse, perinde habetur ac si interrogatione praecedente responsum 
 sit" (c). There is no doubt that he means only a writing under 
 seal, though it is not so expressed : Fleta does say in so many words 
 that a writing unsealed will not do (d). The equivalent for the- 
 Eoman Stipulation being thus fixed, the classes of Eeal and Con- 
 sensual contracts are recognized, in the terms of Eoman law so far 
 as the recognition goes; but the Consensual contracts are so mea- 
 gerly handled that it looks as if they were introduced only for 
 form's sake (e). We hear of nothing corresponding to the later 
 Eoman extensions of the validity of informal agreements. Such 
 agreements in general *give no right of action: in (jlanville [125- 
 it is expressly said : " Privatas conventiones non solet curia domini 
 regis tueri (/), in a, context suggesting that in his time even the 
 
 (a) Brskine Pr. of Law of So. Bk. 3, Tit. 2, § 1 ; Bk. 4, Tit. 2, \ 11. 
 
 (b) One may doubt whether an English court ever in fact enforced or would 
 have enforced a Stipulation proper, as well as whether it ever entertained an 
 "actio legis Aquiliae de hominibus per feloniam occisis,'' fo. 1036. 
 
 (c) 996, 100a. 
 
 id) Lib. 2 c. 60, \ 25. Non solum sufficiet scriptura nisi sigilli niunimine 
 stipulanlis roboretur cum testimonio fide dignorum praesentiura. The wrong- 
 use of stipulans for the covenantor deserves remark. 
 
 (e) Giiterbock (p. 113) justly remarks that what Bracton says of the Con- 
 tract of Sale in another place (fo. 616), shows that it'was not a true consensual 
 contract in his view. The passage is curious, inasmuch as it contradicts the 
 modern law of England in nearly all points, and the civil law in most. 
 
 (f) Lib. 10, c. 18. "Curia domini regis" is significant for the ecclesiastical 
 courts did take cognizance of breaches of informal agreements as being against 
 
 137 
 
126 CHAP. III. FORM OV CONTRACT. 
 
 regular consensual contracts of the civil law fell withiD thd prop- 
 osition. 
 
 The sum of the matter seems to have been thus. As to formal 
 contracts: A contract under seal could be enforced by action of 
 debt (placitum de debito). It was a good defense that the party's 
 seal had been lost and affixed by a stranger without bis knowledge, 
 at least if the owner had given public notice of the loss (a) ; but 
 not if it had been misapplied by a person in whose custody it was; 
 for then, it was said, it was his own fault for not having it in better 
 keeping. This detail shows how much more archaic English law 
 still was than the developed Eooian system from which it borrowed 
 much of its language : and also that delivery was then known as 
 one of the essential requisites of a deed. As to informal contracts : 
 An action of debt might be brought for money lent, or the price of 
 goods sold and delivered, and an action of detinue (which was but 
 a species of debt) for chattels bailed (b). And probably an action 
 of debt might be maintained for work done or on other considera- 
 tion completely executed. At least the contractus innominati (do ut 
 des, etc.) are distinctly recognized by the text-writers, though in 
 Bracton strangely out of their natural place, under the head of 
 conditional grants (Bracton 186, 19a ; Flcta 1. 2, c. 60 § 23) (c). 
 126] *About two centuries later we find it quite clear that an ac- 
 tion of debt will lie on any consideration executed (though the term 
 is not used) and also — which marks a decided advance since Brac- 
 ton's time — that on a contract for the sale of either goods or land 
 
 good conscience, lb. e. 12, and see Blackstone's Oomm. 1. 52, and authorities 
 there cited, and Archdeacon Hale's Series of Precedents and Proceedings, 
 where several instances will be found. It is worth noting that they seem to 
 cease after the end of the 15th century, i.e. when the action of assumpsit in 
 the temporal courts had become well established, and therefore the spiritual 
 ■courts would have been prohibited from entertaining such matters, as they had 
 .already been prohibited from entertaining suits nominally pro laesione fidei,- 
 but really equivalent to actions of debt or the like. Y. B. 38 H. 6, 29 pi. 11. 
 
 (a) Glanville (L. 10, c. 12) has not even this: Britton, 1. 164, 166 as in the 
 text. " Pur ceo qe il ad conu le fet estre soen en paitie, soit agarde" pur le 
 pleyntif et se purveye autre foiz le defendaunt de meillour gardeyn." Cp. 
 Pleta, 1. 6, u. 33, g 2 ; c. 34, \ 4. 
 
 (ft) For the precise difference in the developed forms of pleading, see per 
 Maule-, J., 15 C. B. 303. 
 
 (c) In Bracton fo. 19a, lines 14, 15, si (the second) and possunt are obvious 
 misprints for sed and possum, also we must read with Giiterbock "utrepetere 
 -«o» possim." 
 138 
 
OLD ENGLISH LAW. 127 
 
 .an action may be maintained for the price before the goods are de- 
 livered or seisin given of the land (a). 
 
 Obligations quasi ex contractu might in some cases at least be en- 
 forced by action of debt. Such an action brought to recover money 
 paid on a failure of consideration, was held good in form (though 
 there was in fact a covenant), Y. B. 21 & 22 Ed. 1, p. 600 (Eolls 
 ed.) [A.D. 1294] where it is also said that money paid as the price 
 of land might be recovered back in an action of debt if the seller 
 would not enfeoff the buyer. This action was probably a direct 
 imitation of the Eoman Condictions, and must not be confused with 
 the modern action of assumpsit on the " common counts." 
 
 The action of account was also in use, see 52 Hen. 3 (Stat. Marlb.) 
 •c. 17, 13 Ed. 1 (Stat. Westm. 2) c. 23. It seems to have been for a 
 long time a remedy of wide application (sometimes exclusively, 
 •sometimes concurrently with debt) to enforce claims of the kind 
 which in. modern times have been the subject of actions of assump- 
 sit for money had and received or the like. It covered apparently 
 all sorts of cases where money had been paid on condition or to be 
 dealt with in some way prescribed by the person paying it (see 
 cases in 1 JRol. Abr. 116). One must not be misled by the state- 
 ment that " no man shall be charged in account but as guardian in 
 socage, bailiff or receiver " (11 Co. Rep. 89, Co. Lit. 172a) : for it 
 is also said " a man shall have a writ of account against one as 
 bailiff or receiver where he was not his bailiff or receiver : for if a 
 man receive money for my use' I shall have an account against him 
 as receiver ; or if a man deliver money unto another to deliver 
 over unto me, I shall have an account against him as my receiver " 
 (F. N. B. 116 Q). This action might be brought by one partner 
 .against another (lb. 117 D). At common law it could not be 
 brought by executors, except, it seems, in the case of merchants, 
 nor against them unless at the suit of the Crown (Co. Lit. 90&, and 
 :see Earl of Devonshire's *ca. 11 Rep. 89) : but it was made 127 
 .applicable both for and against executors by various statutes to 
 which it is needless to refer particularly (6). In modern times this 
 .action has become all but obsolete (c). 
 
 On informal executory agreements there was in general no 
 
 (a) Y. B. Mich. 37 H. 6 [A. D. 1459] 8, pi. 18, by Prisot, G. J. 
 (6) The action is given' against executors by 4 & 5 Ann. c. 3 (Rev. Stat.; 4 
 Ann. c. 16 in Buffhead), s. 27. 
 
 (c) See Lindley Ptnp. 1. 66, note r, 2. 909, note c. 
 
 139 
 
128 CHAP. III. FORM OF CONTRACT. 
 
 remedy in the King's Courts. The Ecclesiastical Courts however- 
 took notice of them (see note p. 125 supra) : and it may well be- 
 that executory mercantile contracts were also recognized in the 
 special courts which administered the law merchant. ' But we can 
 not here attempt to throw, any light on that which Lord Blackburn 
 has found to he one of the obscurest passages in the history of the 
 English law (a). Also there are traces of exceptions by local cus- 
 tom. We read in F. N. B. 146 A. that "in London a man shall, 
 have a writ of covenant without a deed for the covenant broken," 
 but the authorities referred to do not bear this out (b). 
 
 It is not without significance that when a general remedy was at. 
 last found indispensable it was introduced in the form of an action 
 nominally ex delicto. It was a new variety of trespass on the ease 
 that ultimately became the familiar action of assumpsit and the or- 
 dinary way of enforcing simple contracts. The final prevalence of" 
 assumpsit over debt was no doubt much aided by the defendant not 
 being able to wage his law and by certain other advantages : but, 
 the reason of its original introduction was to supply a remedy where 
 debt would not lie at all. This was not effected without some fail- 
 ures. The first recorded case is abridged by Keeves, and translated 
 by Mr. C. P. Cooper (e), but is curious enough to bear repeating. 
 The action was against a carpenter for having failed to build 
 128] *certain houses as he had contracted to do. The writ ran 
 thus : " Quare cum idem [the defendant] ad quasdam domos ipsius 
 Laurentii [the plaintiff] bene etfideliter infra certum tempus de novo- 
 construend' apud Grimesby assumpsisset, praedictus tamen T. 
 domos ipsius L. infra tempus praedicturn, etc., construere non 
 curavit ad dampnum ipsius Laurentii decern libr', etc. The report 
 proceeds to this effect : — 
 
 " Tirwit. — Sir, you see well that his count is on a covenant, and, 
 be shows no such thing : judgment. 
 
 (a) Blackburn on the Contract of Sale, 207-8. In addition to the quotation . 
 there from the Year Book of Ed. 4, see now Y. B. 21 & 22 Ed. 1. p. 458. 
 
 (6) The Year Book, 27 H. 6. 10, pi. 6, shows only that by the custom of Lon- 
 don a covenant to repair by the lessor was implied in leases. The case in 1 Leo. 
 2, shows a custom at Bristol " that conventio ore tenus facta shall bind the 
 covenantor as strongly as if it were made by writing," which being taken 
 strictly, was held not to bind executors. 
 
 (e) Hist. Eng. Law (Ed. Pinlason), 2. 508; 1 C. P. Cooper, Appx. 549, where- 
 subsequent cases are also collected and translated. 
 140 
 
INTRODUCTION OF ASSUMPSIT. 129 
 
 Gascoigne. — Seeing that you answer nothing, we ask judgment 
 :and pray for our damages. 
 
 Tirwit.— This is covenant or nothing (ceo est merement un covenant). 
 
 Brenchesley, J.— It is so : perhaps it would have been otherwise 
 had it been averred that the work was begun and then by negli- 
 gence left unfinished. 
 
 (Sankford, J., observed that an action on the Statute of Labour- 
 -evs might meet the case.) 
 
 Rii'khill, J. — For that you have counted on a covenant and show 
 none, take nothing by your writ but be in mercy " (a). 
 
 This was followed by at least one similar decision (b), but early 
 .in the reign of Henry VI. a like action was brought against one 
 "Watkins for failure to build a mill within the time for which he had 
 promised it, and two out of three judges (Babington, OJ. and 
 rCockaine, J.) were decidedly in favor of the action being maintain- 
 able and called on the defendant's counsel to plead over to the 
 ■merits (c). Martin, J. dissented, insisting that an action of tres- 
 pass would not lie for a mere non-feasance : a difficulty by no 
 means frivolous in itself. "If this action is to be maintained on 
 this matter," he said, " one shall have an action of trespass on every 
 .agreement that is broken in the world." This however was the 
 very thing sought, and so it came to pass in the two following 
 reigns, when the general application of the action of assumpsit was 
 well established (see "Reeves, 3. 182, 403). It is only since the Com- 
 mon Law Procedure Act that there has been in form as well as in' 
 substance a consistent and appropriate procedure for enforcing 
 executory simple contracts. 
 
 *We need not stop to consider the requisites of a deed, but [129 
 it may be noticed that when the books (e.g. Shepp. Touchst. 54) 
 say a deed must be written on parchment or paper, not on wood, 
 etc., this is not due, as a modern, reader might at first sight think, 
 to mere exuberance of fancy or abundance of caution. The key is 
 to be found, we believe, in the common use of wooden tallies as 
 records of contracts in the middle ages, and in the fuller statement 
 -of Fitzherbert (F. JST. B. 122 I) that if such a tally is sealed and 
 delivered by the party it will not be a deed. The Year Books 
 there referred to ' (so far as we can verify the references : some are 
 •wrong and we have nbt been able to set them right) show that at- 
 tempts were in fact made to rely on sealed tallies as equivalent to 
 
 (a) Mich. 2 H.4. 35, pi. 9. (b) Mich. 11 H. 4. 33, pi. 60. 
 
 (e) Hil. 3 H. 6. 36, pi. 33. 
 
 141 
 
130 CHAP. III. FORM OP CONTRACT. 
 
 deeds. These tallies were no doubt written upon as well as- 
 notched, so that nothing could be laid hold of to refuse them the- 
 description of deeds but the fact of their being wooden : the 
 writing is expressly mentioned in one case (a), and the Exchequer- 
 tallies used till within recent times were likewise written upon (6). 
 
 The foregoing sketch has shown how in the ancient view no'in- 
 formal contract is good unless it falls within some exceptionally 
 favored class : the modern view to which the law of England has- 
 now long come round is the reverse, namely that no contract need 
 be in any particular form unless it belongs to some class in which 
 a particular form is specially required. 
 
 Before we say any thing of these classes it must be mentioned 
 that contracts under seal are not the only formal contracts known* 
 to English law. There are certain " contracts of record " which, 
 are of a yet higher nature than contracts by deed. The judgment 
 of a Court of .Record is treated for some purposes as a contract (c), 
 and a recognizance, i.e. " a writing obligatory acknowledged before 
 a judge or other officer having authority for that purpose and en- 
 rolled in a Court of Record " is strictly and properly a contract 
 130] "entered into with the Crown in its judicial capacity. The 
 statutory forms of security known as statutes merchant, statutes 
 staple, and recognizances in the nature of a statute staple, were 
 likewise of record, but they have long since fallen out of use (d). 
 
 The kinds of contracts subject to restrictions of form are these :- 
 
 (1). At common law, the contracts of corporations. The rule 
 
 (a) Trin. 12 H. 4. 23, pi. 3. The other eases we have been able to find are 
 Pasch. 25 K 3. 83 (wrongly referred to as 40 in the last case, and in the margin 
 of Fitzh.) pi. 9, where the reporter notes it is said to be [by custom] otherwise 
 in London; and Trin. 44 Ed. 3. 21, pi. 23. 
 
 (6) See account of thep in Penny Cyclopaedia, s. v. Tally. The use of tal- 
 lies appears not to be obsolete on the continent. The French (art. 1333) and 
 Italian (art. 1332) Civil Codes expressly admit them as evidence between, 
 traders who keep their accounts in this way. 
 
 (c) [Morse v. Tappari, 3 Gray, 411 ; Gebhard v. Gamier, 12 Bush, 321 ; Stuart 
 ■o. Landers, 16 Cal. 372; Burnes v. Simpson, 9 Kan. 658. 
 
 But a judgment is not, properly speaking, a contract. Roe v. Hulbert, 17 
 111.572,580; In re Kennedy, 2 S. C. 216; Burnes o. Simpson, 9 Kan. 658;. 
 Larrabee v. Baldwin, 35 Cal. 155, 168; Dudley v. Lindsey, 9 B. Mon. 486, 489;; 
 certainly not within the definition of that term, supra, 1-8.] 
 
 (d) As to Contracts of Record, see Leake, chap. 1, sect. 3 [2d. ed. chap. 3],. 
 and for an account of statutes merchant, etc., 2 Wms. Saund. 216-222. 
 
 142 
 
CONTRACTS OF CORPORATIONS. 131 
 
 that such contracts must in general be under seal is remarkable as 
 mot being an institution of modern positive law but a survival from 
 a time when the modern doctrine of contracts was yet unformed. 
 Of late years great encroachments have been made upon it, which 
 have probably not reached their final limits ; as it stands the 
 law is in a state of transition or fluctuation on some points, and 
 demands careful consideration. Both the historical and the prac- 
 tical reason lead us to give this topic the first place. 
 
 (2). Partly by the law merchant and partly by statute, the pe- 
 culiar contracts expressed in negotiable instruments. 
 
 (3). By statute only — .. 
 
 A. The various contracts within the Statute of Frauds. Cer- 
 tain sales and dispositions of property are regulated by other 
 statutes, but mostly as transfers of ownership or of rights good 
 against third persons rather than as agreements between the 
 parties. 
 
 B. Marine insurances. 
 
 0. Transfer of shares in companies (generally). 
 
 D. Acknowledgment of debts barred by the Statute of Limita- 
 tion of James I. 
 
 E. Marriage : This, although we do not mean to enter on the 
 subject of the Marriage Acts, must be mentioned here to complete 
 the list (a). 
 
 1. As to Contracts of Corporations. 
 
 The doctrine of the common law was that corporations could 
 bind themselves only under their common seal, except in small 
 matters of daily occurrence, as the appointment of household 
 •servants and the like (6). The principle of these excep- [131 
 tions being, in the words of the Court of Exchequer Chamber, 
 "convenience amounting almost to necessity"' (c), the vast in- 
 
 (o) [Under the law prevailing in most of the United States, marriage is not 
 a formal contract. Bishop on Marriage and Div., \ 279, et seq. ; Aleister v. 
 Moore, 96 U.S. 76; Richard ». Brehm, 73 Pa. St. 140; Port v. Port, 70 111. 
 484 ; Hutclrins v. Kimmell, 31 Mich. 120 ; Floyd v. Calvert, 53 Miss. 37 ; Mc- 
 Causland's Estate, 52 Ual. 568 ; Dyer v. Brannock, 66 Mo. 391 ; Hibblethwaite- 
 v. Hepworth, Sup. (It. 111., 11 C. L. J. 317.] 
 
 (b) 1 Wms. Saund. 615, 616, and see old authorities eollec ed in notes to Ar- 
 nold v. Mayor of Poole, 4 M. & Gr. 876, and Fishmongers' Company v. Robert- 
 son, 5 M. & Gr. 182. 
 
 (c) Church v. Imperial Gas, &c, Company, 6 A. & E, 846, 861. 
 
 143 
 
132 CHAP. III. FORM OP CONTRACT. 
 
 crease in the extent, importance, and variety of corporate dealings 
 "which has taken place in modern times has led to a corresponding 
 increase of the exceptions. Before considering these, however, it 
 is well to cite an approved judicial statement of the rule, and of 
 the reasons that may be given for it : — 
 
 " The seal is required as authenticating the concurrence of the whole 
 body corporate. If the legislature, in erecting a body corporate, invest 
 any member of it, either expressly or impliedly, with authority to bind 
 the whole body by his mere signature or otherwise, then undoubtedly the 
 adding a seal would be matter purely of form and not of substance. 
 Every one becoming a member of such a corporation knows that he is 
 liable to be bound in his corporate character by such an act ; and persons 
 dealing with the corporation know that by such an act the body will be 
 bound. But in other cases the seal is the only authentic evidence of what 
 the corporation has done or agreed to do. The resolution of a meeting, 
 however numerously attended, is, after all, not the act of the whole body. 
 Every member knows he is bound by what is done under the corporate 
 seal and by nothing else. It is a great mistake, therefore, to speak of the 
 necessity for a seal as a relic of ignorant times. It is no such thing: 
 either a seal or some substitute for a seal, which by law shall be taken as 
 conclusively evidencing the sense of a whole body corporate, is a necessity 
 inherent in the very nature of a corporation" (a). 
 
 It is, no doubt, a matter of '' inherent necessity " that an artificial 
 person can do nothing save by an agent : and the common seal in 
 the agent's custody, when an act in the law purports to be the act 
 of the corporation itself, or his authority under seal, when it pur- 
 jiorls to be the act of an agent for the corporation, is in English 
 law the recognized symbol of his authority (6). But there is no 
 reason in the nature of things why his authority should not be 
 manifested in other ways : nor is the seal of itself conclusive, for 
 182] an instrument to which it is in fact *affixed without authority 
 is not binding on the corporation (c). On the other hand, although 
 
 (a) Mayor of Ludlow v. Charlton, 6 M. & W. 815, 823, adopted by Pollock, 
 "B., in Mayor of Kidderminster v. Hardwick, L. 11. 9 Ex. at p. 24, and see par 
 Keating, J., Austin v. Guardians of BethnaliGreen, L. K 9 0. P. at p. 95. 
 
 (b) [The presence of the corporate seal is prima facte evidence that it was 
 affixed by authority ; Solomon's Lodge v. Montmollin, 58 Ga. 547 ; Union Min- 
 ing' Co. v. Bank, 2 Col. 226; Conine v. Railroad Co., S Houstt 288; Morris v. 
 Keil, 20 Minn. 531 ; Musser v. Johnson, 42 Mo. 74; Evans v. Lee, 11 Nev. 194; 
 Elint v. Clinton Co., 12 N. H. 430; Lovett v. Steam Saw Mill Ass'n, 6 Paige, 
 54 ; Adams v. His Creditors, 14 La. 454 ; Levering v. Mayor, 7 Humph. 553 ; 
 Sheehan v. Davis, 17 O. S. 571 ; Parkinson v. City of Parker, 85 Pa. St. 313.] 
 
 (c) Bank of Ireland v. Evans' Charities, 5,H. L. O. 389; [Koehler v. Black 
 
 144 
 
TRAfiING CORPORATIONS. 132 
 
 it is usual and desirable for the deed of a corporation to be sealed. 
 with its proper corporate seal, it is laid down by high authorities 
 that any seal will do (#). A company under the Companies Act,. 
 1862, must haveits name engraved in legible characters on its seal,, 
 and any director, etc., using as the seal of the company any seal on. 
 which the name is not so engraved is subject to a penalty of 50L 
 (ss. 41, 42) : but this would not, it is conceived, prevent instruments* 
 so executed from binding the company (&). The seal of a building 
 society incorporated under the Building Societies Act. 1874 (37 & 
 38 Vict. c. 42, s. 16, sub-s. 1Q), "shall in all cases bear the registered 
 name thereof," but no penalty Or other consequence is annexed to 
 the non-observance of this direction. 
 
 We now turn to the exceptions. According to the modern au- 
 thorities it is now established, though not till after sundry con- 
 flicting decisions, that the " principle of convenience amounting 
 almost to necessity " will cover all contracts which can fairly be 
 treated as necessary and incidental to the purposes for which the- 
 corporation exists : and that in the case of a trading corporation 
 all contracts made in the ordinary course of its business or for pur- 
 River &c, Co.. 2 Black. 715 ; Leggett v. N. J. Manfg., &c, Co., Saxt. Ch. 541 ; 
 Jackson v. Campbell, 5 "Wend. 572; Case of St. Mary's Church, 7 S. & R. 517, 
 530; Hoyt v. Thompson, 5 N. Y. 320, 335]. 
 
 (a) 10 Co. Rep. 30J ; Shepp. Touchst. 57 ; supra, p. 99 ; [Bank v. Railroad Co., 
 30 Vt. 159; Tennoy v. Lumber Co., 43 N. H. 343; Mill JDain Foundry v. Ho- 
 vey, 21 Pick. 417; Porter v. Railroad" Co., 37 Me. 349; South Baptist Soc. v r 
 Clapp, 18 Barb. 35; Eureka Co. v. Bailey Co., Il Wall. 488. A scroll seal is 
 sufficient in those states whose laws recognize the validity of such a seal when 
 used by a natural person. Johnston v. Crawley, 25 Ga. 316 ; Reynolds v. Trus- 
 tees, &c, 6 Dana, 37 ; Western Seminary v. Blair, 1 Disney, 370]. Yet the rule 
 is doubted, Grant on Corp. 59, but only on the ground of convenience and 
 without any authority. The like rule as to sealing by an individual is quite 
 clear and at least as old as Bracton. Non multum refert utrum [charta] pro- 
 prio vel alieno sigillo sit signata, cum semel a donatore coram testibus ad hoe 
 vocatis recognita et concessa fuerit, fo. 38a. Cp. Britton, 1. 257. 
 
 (J) Notwithstanding the statutory penalty, there is an instaneo on record of 
 -the private seal of a director being used when the company had been so re- 
 cently formed that there had been no time to make a proper seal. Gray v. 
 Leslie, 8 Bq. at p. 531. The like direction and penalty are contained in the 
 Industrial and Provident Societies Act, 1876, 39 & 40 Vict. c. 45, ss. 10, sub-s. 
 1 and 18, sub-s. 2. As to execution of deeds abroad by companies under the 
 Acts of 1862 and 1867, see the Companies Act 1862, s. 55, and the Companies 
 Seals Act 1864 (27 Vict. c. 19) ; in Scotland, the Conveyancing (Scotland) Act 
 1874, 37 & 38 Vict. c. 94, s. 56. 
 
 10 145 
 
133 CHAP. III. FORM OP CONTRACT. 
 
 poses connected therewith fall within this description. The same 
 or even a wider conclusion was much earlier arrived at in the 
 Onitod States. As long ago as 1813 the law was thus stated by the 
 Supreme Court : — 
 
 " It would seem to be a sound rule of law that wherever a corporation 
 133] *is acting within the scope of the legitimate purposes of its insti- 
 tution all parole contracts made by its authorized agents are express 
 promises of the corporation, and all duties imposed on them by law, and 
 all benefits conferred at their request, raise implied promises for the en- 
 forcement of which an action may well lie (a)." 
 
 This brOad statement can not, at present, be said to be correct in 
 England except for trading corporations, and perhaps also for non- 
 trading corporations established in modern times for special pur- 
 poses ; and with all respect for the reasons of the Court of Ex- 
 chequer in Mayor of Ludlow v. Charlton (6), one may perhaps 
 venture to regret that we have not adopted the rule laid down by 
 the American Supreme Court in its fullness and simplicity. The 
 former conflict of decisions is now much reduced, but there remains 
 the inconvenient distinction of two if not three different rules for 
 ■corporations of different kinds. 
 
 As concerns trading corporations the law may be taken as settled 
 by the unanimous decisions of the Court of Common Pleas and of 
 the Exchequer Chamber in South of Ireland Colliery Co. v. Waddle 
 •(c). The action was brought by the Company against an engineer 
 for non-delivery of pumping machinery, there being no contract 
 under seal. Bovill, C. J., said in the Court below that it was im- 
 
 (a) Bank of Columbia v. Patterson, 7 Cranch. 299, 306; [Selma'o. Mullen, 46 
 Ala. 411; Abby v. Billups, 35 Miss. 618; Bridge Co. v. Frankfort, 18 B. Mon. 
 41; Argenti v. San Francisco, 16 Cal. 255; Trustees v. Mulford, 3 Halst. 182; 
 Dunn v. St. Andrew's Church, 14 Johns. 118; San Antonio v. Lewis, 9 Tex. 69; 
 Sheldon v. Fairfax, 21 Vt. 102; Elys Wile, <fec, Co. a. Okisko Co.,.l Md. Ch.392; 
 Hamilton v. Insurance Co., 5 Pa. St. 339; Peterson v. Mayor, 17 N. Y. 449; 
 Preston v. Missouri, &c, Lead Co., 51 Mo. 43. 
 
 And the appointment by a corporation of an agent, officer, or attorney need 
 not be under seal. Fleckner v. Bank, 8 Wheat. 338, 357 ; Osborn v. Bank, 9 
 Wheat. 738, 829 ; Insurance Co. v. Oakley, 9 Paige, 496 ; Buncombe T. Co. v. 
 McCarson, 1 Dev. & Bat. L. 308; Bd. of Education v. Green sbaum, 39 111.609; 
 Hamilton v. Kailroad Co., 9 Ind. 359; Lathrop v. Bank, 8 Dana, 114; Bandall 
 ■b. Van Vechten, 19 Johns. 60,65; Bank v. Davis, 8 Conn. 191; Wolf v. God- 
 dard, 9 Watts, 544.] 
 
 (6) 6M. & W. 815. 
 
 (e) L. E. 3 C. P. 463, in Ex. Ch. 4, C. P. 617. Most if not all of the previous 
 authorities are there referred to. 
 146 
 
TRADING CORPORATIONS. 134 
 
 ■possible to reconcile all the decisions on the subject ; but the ex- 
 ceptions created by the recent cases were too firmly established to 
 be questioned by the earlier decisions, which, if inconsistent with 
 them, must be held not to be law : 
 
 " These exceptions apply to all contracts by trading corporations entered 
 into for the purposes for which they are incorporated. A company can 
 only carry on business by agents, managers, and others; and if the con- 
 tracts made by these persons are contracts which relate to objects and 
 purposes of the company, and are not inconsistent with the rules and 
 regulations which govern their acts [this exception is far from being un- 
 qualified, see Royal British Bank v. Turquand, &c, supra, p. 109], they 
 are valid and binding upon the company, though not under seal. It has 
 been urged that the exceptions to the general rule are still limited to 
 matters of frequent *occurrence and small importance. The au- [134 
 thorities, however, do not sustain the argument." 
 
 The decision was affirmed on appeal without hearing counsel for 
 the plaintiffs, and Cockburn, C. J., said the defendant was inviting 
 the Court to reintroduce a relic of barbarous antiquity. It is sub- 
 mitted that the following cases must, since this, be considered as 
 overruled : 
 
 East London Waterworks Co. v. Bailey, 4 Bing. 283. Action for non- 
 delivery of iron pipes ordered for the company's works (a). Expressly 
 said in the Court below to be no longer law, per Montague Smith, J. See 
 L. R. 3 C. P. 475. 
 
 Homersham v. Wolverhampton Waterworks Co., 6 Ex. 137,20 L. J. Ex. 
 193. Contract under seal for erection of machinery ; price of extra work 
 •done with approval of the company's engineer and accepted, but not 
 within the terms of the sealed contract, held not recoverable. 
 
 Diggle v. London and Blackwall Ey. Co., 5 Ex. 442, 19 L. J. Ex. 308. 
 Work done on railway in alterations of permanent way, etc. ; this case al- 
 ready much doubted in Henderson v. Australian Royal Mail, &c, Co., 5 
 E. & B. 409, 24 L. J. Q. B. 322, which is now confirmed in its full extent 
 by the principal case. 
 
 Probably Finlay v. Bristol and Exeter Ry. Co., 7 Ex. 409, 21 L. J. Ex. 
 ] 17, where it was held that against a corporation tenancy could in no case 
 be inferred from payment of rent so as to admit of an action for use and 
 occupation without actual occupation. 
 
 Also London Dock Co. v. Sinnott, 8 E. & B. 347, 27 L. J. Q. B. 129, 
 -where a contract for scavenging the company's docks for a year was held 
 to require the seal, as not being of a mercantile nature nor with a cus- 
 
 (a) The directors were authorized by the incorporating Act of Parliament 
 to make contracts;, but it was held that this only meant they might affix the 
 seal without calling a meeting. 
 
 147 
 
135 CHAP. III. POEM OF CONTRACT. 
 
 tomer of the company, can now be of little or no authority beyond its- 
 own special circumstances; see per Bovill, C. J., L. R. 3 C. P. 471. 
 
 Even in the House of Lords it has been assumed and said, though for- 
 tunately not decided, that a formal contract under seal, made with a rail- 
 way company, can not be subsequently varied by any informal mutual 
 consent; Midland Gr. W. Ry. Co. of Ireland u. Johnson, 6 H. L. C. 798,. 
 812. 
 
 The following cases are affirmed or not contradicted. Soma of 
 them were decided at the time on narrower or more particular 
 135] *groiinds, and in one or two the trading character of the- 
 corporation seems immaterial: 
 
 Beverly v. Lincoln Gas Co., 6 A. & E. 829. Action against the company 
 for price of gas meters supplied. 
 
 Church v. Imperial Gas Co., lb. 846, in Ex. Ch. Action by the company 
 for breach of contract to accept gas. A supposed distinction between the 
 liability of corporations on executed and on executory contracts was ex- 
 ploded. 
 
 Copper Miners of England v. Fox, 16 Q. B. 229, 20 L. J. Q. B. 174. Ac- 
 tion (in effect) for non-acceptance of iron rails ordered from the company. 
 The company had in fact for many years given up copper mining and 
 traded in iron, but this was not within the scope of its incorporation. 
 
 Lowe v. L. & X. W. Ry. Co., 18 Q. ,B. 632, 21 L. J. Q. B. 361. The com- 
 pany was held liable in an action for use and occupation when there had 
 been an actual occupation for corporate purposes, partly on the ground, 
 that a parol contract for the occupation was within the statutory powers 
 of the directors and might be presumed; cp. the next case. 
 
 Pauling v. L. & X. W. Ry. Co., 8 Ex. 867, 23 L. J. Ex. 105. Sleepers - 
 supplied to an order from the engineer's office and accepted: there was 
 no doubt that the contract could, under the Companies Clauses Consoli- 
 dation Act, be made by the Directors without seal, and it was held that 
 the acceptance and use were evidence of an actual contract. 
 
 Henderson v. Australian Royal Mail, &c, Co., 5 E. & B. 409, 24 L. J. Q. B. 
 322. Action on agreement to pay for bringing home one of the Com- ■ 
 pany's ships from Sydney. Here it was distinctly laid down that "where 
 the making of a certain description of contracts is necessary and inci- 
 dental to the purposes for which the corporation was created," such con- 
 tracts need not be under seal (by Wightman, J.): "The question is 
 whether the contract in its nature is directly connected with the purpose 
 of the incorporation" (by Erie, J.). 
 
 Same Company v. Marzetti, 11 Ex. 228, 24 L. J. Ex. 273. Action by the 
 company on agreement to supply provisions for its passenger ships. 
 
 Reuter v. Electric Telegraph Co., 6 E. & B. 341, 26 L. J. Q. B. 46. 
 Where the chief point was as to the ratification by the directors of a- 
 contract made originally with the chairman alone, who certainly had no 
 authority to make it. 
 148 
 
TRADING CORPORATIONS. 130 
 
 . Claim of Ebbw Vale Company, 8 Eq. 14, decides that one who, sells to 
 ;a company goods of the kind used in its business need not ascertain that 
 ■the company means so to Use them/and is not prevented from enforcing 
 ~the .contract even if he had notice of an intention to use them otherwise. 
 
 *As concerns non-trading corporations, the question has [136 
 never been decided by a Court of Appeal. But the weight of the 
 most recent authorities, together with the analogy of those last 
 •considered, seems practically to give a sufficient warrant for the 
 statement made above, that all contracts necessary and incidental 
 to the purposes for which the corporation exists may be made with- 
 out seal, at least when the corporation has been established for 
 special purposes by a modern statute or charter. On the rule as 
 thus limited the latest case is Nicholson v. Bradfiold Union (a), 
 where it was held that a corporation is liable without a contract 
 under seal for goods of a kind which must be from time to time re- 
 quired for corporate purposes, at all events when they have been 
 actually supplied and accepted. Earlier decisions are as follows : — 
 
 Sanders v. St. Neot's Union, 8 Q. B- 810; 15 L. J. M. C. 104. Iron gates 
 for workhouse supplied to order without seal and accepted. 
 
 Paine v. Strand Union, lb. 326 ; 15 L. J. M. C. 89, is really the same way, 
 though at first sight contra : the decision being on the ground that mak- 
 ing a plan for rating purposes of one parish within the union was not inci- 
 dental to the purposes for which the guardians of the union were incor- 
 porated: they had nothing to do with either making or collecting rates 
 in the several parishes, nor had they power to act as a corporation in mat- 
 ters confined to any particular parish. 
 
 Clarke v. Cuckfield Union, 21 L. J. Q. B. 349 (in the Bail Court, by 
 Wightman, J.). Builders' work done in the workhouse. The former 
 cases are reviewed. 
 
 Haigh v. North Brierly Union, E. B. & E. 873; 28 L. J. Q. B. 62. An 
 •accountant employed to investigate the accounts of the union was held 
 entitled to recover for his work as "incidental and necessary to the pur- 
 poses for which the corporation was created," by Erie, J., Crompton, J. 
 ■doubting. 
 
 In direct, opposition to the foregoing we have only one decision, but a 
 ■considered one, Lamprell v. Billericay Union, 3 Ex. 283; 18 L. J. Ex. 282. 
 Building contract under seal, providing for extra works on written direc- 
 tions of the architect. Extra work done and accepted hut without such 
 ■direction. Held, with an expression of regret, that against an individual 
 -this might have given a good distinct cause of action on simple contract, 
 ibut this would not help the plaintiff, as the defendants could be bound 
 •only by deed. 
 
 (a) L. R. 1 Q. B. 620. 
 
 149 
 
137, 138 CHAP. III. FORM OF CONTRACT. 
 
 With regard to municipal corporations (and it is presumed? 
 137] *other corporations not created for definite public purposes> 
 the ancient rule seems to be still in force to a great extent. An» 
 action will not lie for work done on local improvements (a), or on 
 an agreement for the purchase of tolls by auction (b), without an> 
 agreement under seal. The Court of Common Pleas has very 
 lately held that where a municipal corporation owns a graving- 
 dock a contract to let a ship have the use of it need not be under 
 the corporate seal. This was put however on the ground that the 
 case does fall within the ancient exception of convenience resting 
 on the frequency or urgency of the transaction. The admission 
 of a ship into the dock is a matter of frequent and ordinary occur- 
 rence and sometimes of urgency (c). 
 
 There has also been little disposition to relax the rule in the case- 
 of appointments to offices, and it seems at present that such an ap- 
 pointment, if the office is of any importance, must be under the 
 corporate seal to give the holder a right of action for his salary or 
 other remuneration. This appears by the following instances : — 
 
 Appointment of attorney : Arnold v. Mayor of Poole, 4 M. & Gr. 860. 
 It is true that the corporation of London appoints an attorney in court 
 without deed, but that is because it is matter of record : see pp. 882, 896.. 
 But after an attorney has appeared and acted for a corporation the cor- 
 poration can not, as against the other party to the action, dispute his authority 
 on this ground : Faviell v. E. 0. Ry. Co., 2 Ex. 344; 17 L. J. Ex. 223, 297. 
 Nor can the other party dispute it after taking steps in the action: 
 Thames Haven, &c, Co. v. Hall, 5 M. & Gr. 274. Cp. Reg. v. Justices of 
 Cumberland, 17 L. J. Q. B. 102. 
 
 Grant of military pension by the East India Company in its political 
 capacity: Gibson v. E. I. Co., 5 Bing. N. C. 262. 
 
 Increase of town clerk's salary in lieu of compensation: Reg. v. Mayor 
 of Stamford, 6 Q. B. 434, L. J. Dig. 6. 422. 
 
 Office with profit annexed (coal meter paid by dues) though held at the 
 pleasure of the corporation : Smith v. Cartwright, 6 Ex. 927 ; 20 L. J. Ex. 
 401. The action was not against the corporation but against the person 
 by whom the dues were alleged to be payable. The claim was also wrong 
 on another ground.) 
 
 138] Collector of poor rates : Smart v. West Ham Union, 10 Ex. 867; 24 
 L. J. Ex. 201 : but partly on the ground that the guardians had not under— 
 
 (a) Mayor of Ludlow v. Charlton, 6 M. & W. 815. 
 (6) Mayor of Kidderminster v. Hard wick, L. E. 9 Ex. 13. 
 (c) Wells v. Kingston-upon-Hull, L. R. 10 C. P. 402. 
 150 
 
CONTRACTS OF CORPORATIONS. 139 
 
 taken to pay at all, the salary being charged on the rates ; and wholly on 
 that ground in Ex. Ch., 11 Ex. 867 ; 25 L. J. Ex. 210. 
 
 Clerk to master of workhouse: Austin v. Guardians of Bethnal Green, 
 L. R. 9 0. P. 91. 
 
 Dunstan v. Imperial Gas Light Co., 3 B. & Ad. 125, as to director's fees 
 voted by a meeting; but chiefly on the ground that the fees were never 
 intended to be more than » gratuity. 
 
 Cope v. Thames Haven, &c, Co., 3 Ex. 841 ; 18 Li J. Ex. 345 : agent ap- 
 pointed for a special negotiation with another company not allowed to re- 
 cover for his work, the contract not being under seal nor in the statutory 
 form, viz. signed by three directors in pursuance of a resolution, although 
 by another section of the special act the directors had full power to " ap- 
 point and displace . . all such managers, officers, agents . . . 
 as they shall think proper." It seems difficult to support this decision ; 
 this was not like an appointment to a continuing office; and cp. Reg. v. 
 Justices of Cumberland, 17 L J. Q. B. 102, where under very similar 
 enabling words an appointment of an attorney by directors without seal 
 was held good as against third parties. 
 
 It has been decided (as indeed it is obvious in principle) that in- 
 ability to enforce an agreement with a corporation at law by reason, 
 of its not being under the corporate seal does not create any juris- 
 diction to enforce it in equity (a). 
 
 The rights of corporations to sue upon contracts are somewhat 
 more extensive than their liabilities. When the corporation has 
 performed its own part of the contract so that the other party has 
 had the benefit of it, the corporation may sue on the contract though 
 not originally bound (b). For this reason, if possession is given 
 under a demise from a corporation which is invalid for want of the 
 corporate seal, and rent paid and accepted, this will constitute a 
 good yearly tenancy (c) and wil[ enable the corporation to enforce 
 any term of the agreement which is applicable to such a tenancy (d), 
 and a tenant who has occupied and enjoyed corporate *lands [131> 
 without any deed may be sued for use and occupation (e). Con- 
 fa) kirk v. Bromley Union, 2 Thill. 640. 
 
 (b) Fishmongers' Co. v. Robertson, 5 M. & Gr. 131. The judgment on this 
 point is at pp. 192-6; but, the dictum contained in the passage " Even if . . 
 . against themselves," pp. 102-3 (extending the right to sue without limit) is 
 now overruled. See Mayor of Kidderminster v. Hardwick, L. R. 9 Ex. 13, 21. 
 
 (c) Wood v. Tate, 2 B. & P. N. R. 247. 
 
 (d) Eccles. Commrs. v. Merral, L. R. 4 Ex. 162. By Kelly, C. B., this is cor- 
 relative to the tenant's right to enforce the agreement in equity on the ground 
 of part performance, sed qu. 
 
 (e) Mayor of Stafford o. Till, 4 Bing. 75. The like as to tolls, Mayor of 
 
 151 * 
 
1 10 CHAP. III. FOEM OF CONTRACT. 
 
 versely the presumption of a demise from year to year from pay^ 
 merit and acceptance of rent is the same against a corporation as 
 against an individual landlord : " where the corporation have acted 
 as upon iiu executed contract, it is to be presumed against them 
 that everything has been done that was necessary to make it a 
 binding contract upon both parties, they having had all the ad- 
 vantage they would have had if the contract had been regularly 
 made" (a). And a person by whose permission a corporation has 
 occupied lands may sue the corporation for use and occupation (6) 
 
 In the case of a yearly tenancy the presumption is of an actual 
 contract, but the liability for use and occupation belongs rather, to 
 the class of obligations quasi ex contractu, which we call by the 
 very inconvenient name of " contracts implied in law " (c). It is 
 Settled that in general a cause of action of this kind is as good 
 against a corporation as against a natural person. Thus a corpora-: 
 tion may be sued in an action for money received on the ground 
 of strict necessity; "it can not be expected that a corporation 
 should .put their seal to a promise to return moneys which they are 
 wrongful ly receiving " (d). It was held much earlier that troves 
 could be maintained against a corporation — a decision which, as 
 pointed out in the case last cited, was analogous in principle though 
 not in form (e). 
 
 Forms of contracting otherwise than under seal are provided by 
 many special or general Acts of Parliament creating or regulating 
 140] corporate companies, and contracts duly made in *those forms 
 
 Carmarthen v. Lewis, 6 C. & P. 608, but see Serj. Manning's note, 2 M. & Gr. 
 249. 
 
 (a) Doe d. Pennington v. Taniere, 12 Q. B. 998, 1013; 18 L. J. Q. B.49. 
 
 (b) Lowe v. L. & N. W. Ry. Co., 18 Q. B. 632; 21 L. J. Q. B. 361. 
 
 (c) The liability existed at common law, and the statute 11 Geo. 2, c. 19, s. 
 14, made the remedy by action on the case co-extensive with that by action of 
 debt, see Gibson v. Kirk, 1 Q. B. 850; 10 L. J. Q. B. 297. Since the C. L. P. 
 Act the statute seems in fact superfluous. 
 
 (d) Hall v. Mayor of Swansea, 5 Q. B. 526, 549; 13 L. J. Q. B. 107. The 
 like of a quasi corporation empowered to sue and be sued by an officer, Jef- 
 ferys v. Gurr, 2 B. & Ad. 833; [Poultney v. Wells, 1 Aikens, 180]. 
 
 (e) Tavborough v. Bank of England, 16 East, 6. See early cases of trespass 
 against corporations cited by Lord Ellenborough, at p. 10 ; [Beach v. Bank, 7 • 
 Cow. 485]. 
 
 152 
 
CONTRACTS OF CORPORATIONS. 140 
 
 •are of course valid (a). But a statute may, on the other hand, con- 
 tain restrictive provisions as to the form of corporate contracts, and 
 in that case they must be strictly followed. An enactment that con- 
 tracts of a local board -whose value should exceed 101. should bo in 
 writing and sealed with the seal of the local board has been held, 
 though with great reluctance and even indignation, to be impera- 
 tive. The claim, like sundry others above mentioned, was for ex- 
 tra work done without any formal order, the principal work being 
 provided for by a contract in due form (b). The general results 
 seem to stand thus: — 
 
 In the absence of enabling or restrictive statutory provisions, 
 -which when they exist must be carefully attended to — 
 
 A trading corporation may make without seal any contract inci- 
 dental to the ordinary conduct of its business; but it can not bind 
 itself by negotiable instruments unless the making of such instru- 
 ments is a substantive part of that business, or is provided for by 
 its constitution (c). 
 
 A non-trading corporation, if expressly created for special pur- 
 poses, may make without seal any contract incidental to those pur- 
 poses ; if not so created, can not (it seems) contract without seal 
 except in cases of immediate necessity, constant recurrence, or 
 trifling importance. 
 
 In any case where an agreement has been completely executed 
 -on the part of a corporation, it becomes a contract on which the 
 corporation may sue. 
 
 The rights and obligations arising from the tenancy or occu- 
 pation of land without an express contract apply to corporations 
 both as landlords and as tenants or occupiers in the same manner 
 -(d) and to the same extent as to natural persons. 
 
 A corporation is bound by an obligation implied in law when- 
 ever, under the like circumstances, a natural person would be so 
 bound. 
 
 It will be seen that as touching non-trading corporations the 
 Jaw still leaves a good deal to be desired in certainty, and perhaps 
 
 (a) See Mr. Justice Lindley's account (1.370-4). Beer v.. London & Paris 
 Hotel Co., 20 Eq. 412, 426. 
 (6) Frend v. Dennett, 4 U. B. N. S. 576 ; 27 L. J. 0. P. 314. 
 
 (c) See p. 117, supra. 
 
 (d) Assuming Finlay v. Bristol and Exeter By. Co., 7 Ex. 409; 21 L. J. Ex. 
 J117, not to be now law. 
 
 153 
 
J41, 142 CHAP. HI. FORM OF CONTRACT. 
 
 something in reasonableness ; and it is much to be wished that the- 
 1 11] whole subject should be reviewed and put on a *settled and 
 consistent footing by the Court of Appeal. In the present wriU'r's- 
 opinion this could not be satisfactorily done without expressly 
 overruling a certain number of the decided cases. 
 
 2. Negotiable Instruments. 
 
 The peculiar contracts undertaken by the persons who issue or- 
 indorse negotiable instruments must by the nature of the case be- 
 in writing. A bill of exchange is defined as a written order for the 
 payment of a certain sum of money unconditionally; a promissory 
 note as a written promise to pay a certain sum of money uncon- 
 ditionally (a). Thfc acceptance of a bill of exchange, though it 
 may be verbal as far as the law merchant is concerned, is required 
 by statute to be in writing (19 & 20 Vict. c. 97, s. 6, extending and 
 superseding 1 & 2 Geo. 4, c. 78, s. 2, now expressly repealed by the 
 Stat. Law Revision Act 1873). Additional forms were required in. 
 the case of negotiable instruments for less than 101. by 17 Geo 3, 
 c. 30 ; but this was repealed by a temporary Act, 26 & 27 Vict. 
 c. 105, which has since been continued from time to time by the 
 annual Expiring Laws Continuance Acts. 
 
 '■). As to purely statutory forms. 
 
 A. Contracts within the Statute of Frauds. 
 
 To write a commentary on the Statute of Frauds would be quite 
 beyond the scope of this work. It may be convenient however to 
 state as shortly as possible, so far as contracts are concerned, the- 
 contents of the statute and some of the leading points established 
 on the construction of it. 
 
 The statute (29 Car. 2, c. 3) enacts that no action shall be brought 
 on any of the contracts specified in the 4th section " unless the 
 agreement upon which such action shall be brought or some mem- 
 orandum or note thereof shall be in writing and signed bj' the 
 p;irty to be charged therewith or some other person thereunto by 
 him lawfully authorized." The peculiar operation of this section 
 as distinguished from the seventeenth will be considered in another 
 place (Chapter XII.). The contracts comprised in it are— 
 142] *«■ Any special promise by an executor or administrator "to* 
 answer damages out of bis own estate." No difficulty has arisen 
 on the words of the statute, and tbe chief observation to be made- 
 
 («) Smith, Mere. Law, 199, and as to promissory notes, 3 and 4 Ann. c. 8- 
 [Uev. Sta't., al. 9], s. 1. 
 154 
 
STATUTE OF FRAUDS. 142: 
 
 is the almost self-evident one (which equally applies to the other 
 cases within the statute) that the existence of a written and signed 
 memorandum is made a necessary condition of the agreement being 
 enforceable, but will in no case make an agreement any better than 
 it would have been apart from the statute. A good consideration, 
 a real consent of the parties to the same thing in the same sense, 
 and all other things necessary to make a contract good at common 
 law are still required as much as before (a). 
 
 /3. "Any special promise to answer for the debt default or mis- 
 carriages of another person." 
 
 > On this the principal points are as follows. A promise is not 
 within the statute unless there is a debt, etc., of some other person 
 for which that other is to remain liable (though the liability need 
 not be a present one) : for there can be no contract of suretyship 
 or guaranty unless and until there is an actual principal debtor. 
 " Take away the foundation of principal contract, the contract of 
 .suretyship would fail" (b). Where the liability, present or future, 
 of a third person is assumed as the foundation of a contract, but 
 does not in fact exist, then, independently of the statute, and on 
 the principle of the Couturier v. Iiastie class of cases (explained 
 elsewhere, Chap. VIII. ad fin.) there is no contract. On the other 
 hand a promise to be primarily liable, or to be liable at all events, 
 whether any third person is or shall become liable or not, is not 
 within the statute and need not be in writing. Whether particular 
 spoken words, not in themselves conclusive, e.g. "Go on and do the 
 work and I will see you paid," amount to such a promise or only 
 
 (a) As to these contracts of executors, 2 Wins. Exors. Pt. 4, Bk. 2, c. 2, \ 1. 
 
 (ft) Mountstephen v. Lakemnn, L. R. 7 Q. B. 196, 202 (in Ex. Ch.) per 
 Willes, J., affd. L. B. 7 H. L. 17 nom. Lakeman v. JVl'ountstephen ; [Sinclair 
 v. Bradley, 52 Mo. 180; Jepherson v. Hunt, 2 Allen, 417; Walker v. Norton, 
 29 Vt. 226; Hodges v. Hall, 29 Vt. 209; Ledlow v. Becton, 36 Ala. 596; Mease 
 v. Wagner, 1 McOord, 395. 
 
 A promise to pay the debt of another, which provides for the release of that 
 other from the debt, is not within the statute. Palmer v. Blaine, 55 Ind. 11; 
 Yale v. Edgerton, 14 Minn. 194; Booth v. Eighmie, 60 N. Y. 238; Day v. Cloe, 
 4 Bush, 563; Wood v. Corcoran, 1 Allen, 405; "Wan-en v. Smith, 24 Tex. 484; 
 Corbettu. Cochran, 3 Hill (S. C), 41; Watson v. Jacobs, 29 Vt. 169; Packer 
 v. Benton, 35 Conn. .343 ; White v. Solomonsky, 30 Md. 585; Harris v. Young,. 
 40 Ga. 65; Mcriden Britannia Co. v. Zingsen, 48 N. Y. 247 ; Edenfield v. Can- 
 
 ady, 60 Ga. 456.] 
 
 155 
 
143 CHAP. III. FORM OF CONTRACT. 
 
 to a guaranty is a question of fact to be determined by the circum- 
 stances of the case (a). 
 
 Nor is a promise within the statute unless it is made to the prin- 
 cipal creditor: " The statute applies only to promises made to 
 143] *the person to whom another is answerable" (6) or is to be- 
 come so. 
 
 A mere promise of indemnity is not within the statute (c), though 
 any promise which is in substance within it can not be taken out 
 of it by being put in the form of an indemnity (d). 
 
 A contract to give a guaranty at a future time is as much within 
 the statute as the guaranty itself (e). 
 
 '(a) [Mounstephen v. Lakeman, L. E. 7 Q. B. 196; L. E. 7 H.L. 17; Perkins 
 v. Hinsdale, 97 Mass. 157; Billingsley v. Dempelwolf, 11 Ind. 414; "Walker v. 
 Hill, 119 Mass. 249; Sinclair v. Biehardson, 12 Vt. 33; Warnick i>. Grosholz, 
 3 Grant's Cas. '234 ; Cowdin v. Gottgetreu, 55 N. Y. 650; Pettit v. Braden, 55 
 Ind. 201.] 
 
 (b) Eastwood v. Kenyon, 11 A. & E. 438, 446; concess. Cripps ». Hartnoll, 4 B. 
 -&S. 414; 32 L. J. Q. B. 381 (Ex.Ch.); [Williams «.Eogers, 14 Bush, 776; Pratt 
 
 v. Bates, 40 Mich. 37; Alger v. Scovill, 1 Gray, 391; Perkins v. Littlefield, 5 
 Allen, 370 ; North v. Eobihson, 1 Duv. 71 ; Mersereau v. Lewis, 25 Wend. 243 ; 
 Hardesty v. Jones, 10 G. & J. 404; Eice i>. Carter, 11 Ired. L. 298; Goetz v. 
 Poos, 14 Minn. 265 ; Pratt v. Humphrey, 22 Conn. 317; Piske v. McGregory, 
 34 N. H. 414; Brown v. Brown, 47 Mo, 130; Crim v. Pitch, 53 Ind. 214; Cen- 
 ter v. McQuesten, 18 Kan. 476.] 
 
 (c) Cripps v. Hartnoll (last note) ; Wildes v. Dudlow, 19 Eq. 198. [Whether 
 a promise to indemnify one for becoming bail or surety for a third person is, or 
 not, within the statute is a disputed question in the United States. That the 
 promise is not within the statute, see Aldrich u. Ames, 9 Gray, 76 ; Horn v. 
 Bray, 51 Ind. 555; Holmes v. Knights, 10 N. H. 175; Chapin v. Lapham, 20 
 Pick. 467; Mills v. Brown, 11 la. 314; Jones v. Shorter, 1 Kelly, 294; Smith 
 v. Say ward, 5 Me. 504; Beed v. Holcomb, 31 Conn| 360. This is believed to 
 be the better view. Contra, see Easter v. White, 12 O. S. 219 ; Kelsey «. Hibbs, 
 13 O. S. 340; Brown v. Adams, 1 Stew. 51 ; Simpson v. Nance, 1 Spears, 4; 
 Draughan v. Bunting, 9 Ired. L. 10; Bissing v. Britton, 59 Mo. 204; Kingsley 
 v. Balcome, 4 Barb. 131. 
 
 Courts holding the latter view, have taken a distinction where the promisor 
 :and promisee were both sureties for the third person, and there held the prom- 
 ise of indemnity not within the statute. Perrell v. Maxwell, 28 O. S. 383 ; Barry 
 a. Ransom, 12 N. Y. 462.] 
 
 (d) Cripps v. Hartnoll; 4 B. & S. 414; 32 L. 3. Q. B. 381 (Ex. Ch.) 
 
 (e) Mallet v. Bateman, L.E.I C. P. 163 (Ex. Ch.); [Carville v. Crane, 5 
 Hill, 483; Taylor v. Drake, 4 Strobh. L. 431]. See further. on this clause, 1 
 Wms. Saund. 229-235 ; 1 Sm. L. C. ; note to Birkmyr v. Darnell ; Smith, 
 
 _Merc. Law, 456-9 (8th ed.) [In Leonard v. Vredenburgh, 8 Johns. 29, Kent, 
 l-)6 
 
STATUTE OP FRAUDS. 144 
 
 y. "Any agreement made upon consideration of marriage." A 
 promise to marry is not within these words, the consideration beings 
 not marriage, but the other party's reciprocal promise to marry (a). 
 For, further remarks on the effect of this, clause Reo chapter XII., 
 on Agreements of Imperfect Obligation, infra. 
 
 In the old books wo frequently meet with another sort of diffi- 
 culty touching agreements of this kind; it was much doubted 
 whether matrimony were not so purely spiritual a matter that all 
 agreements concerning it must be dealt with only by the ecclesias- 
 tical courts : the type of these disputed contracts is a promise by 
 A. to IS. to pay B. 10/. if he will marry A.'s daughter. But this by 
 the way (6). 
 
 8- "Any contract or sale of lands, tenements, or hereditaments, or 
 any interest in or concerning. them." This clause is usually and 
 conveniently considered as belonging to the topic of Vendors and 
 Purchasers of real estate; and the reader is referred to the well- 
 known works which treat of that subject (c). Questions have 
 arisen, however, whether sales of growing crops and the *like [144 
 were sales of an interest in lands within the 4th section or of goods 
 within the 17th; and these cases are accordingly discussed by Mr. 
 Justice Blackburn and Mr. Benjamin in their expositions of the 
 17th section (d). A sale of tenant's fixtures, being a sale only of 
 
 C. J., classified the eases arising upon provision /? of the statute; see, further,, 
 the classification by Comstock, J., in Mallory v. Gillett, 21 N. Y. 412.] 
 
 (a) [Short v. Stotts, 58 Ind. 29 ; Clark v. Pendleton, 20 Conn. 495 ; Ogden s_ 
 Ogden, 1 Bland Ch. 284 ; Derby v. Phelps, 2 N. H. 515.] 
 
 (i) Such promise rqay be sued on in the King's Court if by deed,22 Ass. 101, 
 pi. 70; otherwise if he had promised 101. with his daughter in marriage, then 
 it should be in the Court Christian. Trin. 45 Ed. 3. 24, pi. 30; action good- 
 without specialty where the marriage had taken place. Mich. 37 H. 6. 8. pi.. 
 18. Centra (not without dissent), Trin. 17 Ed. 4. 4, pi. 4. 
 
 (c) As to an agreement collateral to a demise of land not being within the 
 statute, see the late cases of Morgan v. Griffith, L. E. 6 Ex. 70; Erskine v. 
 Adeane, 8 Ch. 756; Angell v. Duke, L. E. 10 Q. B. 174; [Lewis u . Seabury, 74 
 N. Y. 409. And see Weatherbee v. Potter, 99 Mass. 354, 361; Eemington ».. 
 Palmer, 62 N. T. 31; Carre. Dooley, 119 Mass. 294; McCormiek v. Cheevers, 
 124 Mass. 262, as to stipulations collateral to the sale of an interest, in land.]' 
 As to the distinction between a demise and a mere license or agreement for the 
 use of land without any change of possession, Wells v. Kingston-upon-Hull, L r 
 11. 10 C. P. 402. 
 
 (d) Blackburn on the Contract of Sale, 9-21 ; Benjamin on Sale, 91-105 [2d. 
 
 157 
 
144 CHAP. III. FORM OP CONTRACT. 
 
 the right to sever the fixtures from the freehold during the term, is 
 not within either section (a). 
 
 By the 1st and 2d sections of the statute leases for more, than 
 three year3, or reserving a rent less than two-thirds of the im- 
 proved value, must be in writing and signed by the parties or their 
 agents authorized in writing, and now by 8 and 9 "Vict. c. 106. s. 3, 
 they must be made by deed. But an informal lease, though void 
 as a lease, may be good as an agreement for a lease (b). 
 
 s. "Any agreement that is not to be performed within the space 
 of one year from the making thereof." 
 
 " Is not to be," not " is not " or " may not be." This means an 
 agreement that on the face of it can not be performed within a 
 year. An agreement capable of being performed within a year, 
 and not showing any intention to put off the performance till after 
 a yeiir, is not within this clause (c). Nor is an agreement within 
 it which is completely performed by one party within a year (d). 
 
 Am. ed. 112-123]; Marshall v. Green, 1 C. P. D. 35. And see 1 Wms. Saund. 
 395 ; Leake, 131-5 [2d ed. 249-255]. 
 
 (a) Lee v. Gaskell, 1 Q. B. D. 700. (b) Dart, V. & P. 1, 198. 
 
 (c) Smith v. Neale, 2 C. B. N. S. 67; 26 L.J. C. P. 143; [Walker v. Johnson, 
 '96 U. S. 424; McPherson v. Cox, 96 U. S. 404; Blakeney v. Goode, 30 O. S. 
 360; Somerby v. Buntin, 118 Mass. 279; Ellicott B . Turner, 4 Md. 476; Kent 
 v. Kent, 62 N. Y. 560; Frost v. Tarr, 5 % 3 Ind. 390; Clark v. Pendleton, 20 
 Conn. 495; Lawrence v. Cooke, 56 Me. 187; Paris v. Strong, 51 Ind. 339; Blair 
 T. L. and Land Co. v. Walker. 39 la. 406; Hodges v. Richmond Mfg. Co., 9 
 B. I. 482; Jilson v. Gilbert, 26 Wis. 637; Browne on Stat. Frauds, \\ 274-283]. 
 
 (d) Cherry v. Heming, 4 Ex. 631 ; 19 L. J. Ex. 63; Peter v. Compton, 1 Sm. 
 L. C. [In agreement with the text see McClellan u. Sandford, 26 Wis. 595; 
 Smalley v. Greene S. C. la., 20 Alb. L.J. 475; Suggett's Adm'r. v. Cason's 
 Adm'r., 26 Mo. 221; Self v. Cordell, 45 Mo. 345; Compton u. Martin, 5 ilich. 
 L. 14; Bates v. Moore, 2 Bailey, 614; Berry v. Doremus, 30, N. J. L. 399; 
 Haugh v. Blythe's Ex'rs, 20 Ind. 24; Curtis v. Sage, 35 111. 22; Kake's Adm'rs. 
 v. Pope, 7 Ala. 161 ; Hulbrook v. Armstrong, 10 Me. 31 ; Ellicott «. Turner, 4 Md. 
 476; Perkins v. Clay, 54 N. H. 518. Contra, see Pierce v. Payne, 28 Vt. 34; 
 Whipple v. Parker, 29 Mich. 369 ; Marey v. Marcy, 9 Allen, 8^ Erary v. Ster- 
 ling, 99 Mass. 461 ; Emery v. Smith, 40 N. H. 151 ; Broadwell v. Getman, 2 
 Denio, 87 ; Patten v. Hicks, 43 Cal. 509 ; Eeinheimor „. Carter, 31 O. S. 579, 
 587-8 ; Montague v. Garnett, 3 Bush, 297. 
 
 But plaintiff can recover on quantum meruit, or quantum valebat, if the per- 
 formance of the contract has inured to the defendant's benefit, so that in the 
 absence of an express promise of compensation one would have been implied. 
 
 In Sheehy v. Adarene, 41 Vt. 541, it was held that a promise to be performed 
 within a year, made in consideration of one not to be performed within a year, 
 ds not within the statute. I 
 158 
 
STATUTE OF FRAUDS. 145 
 
 An agreement is not excluded from the operation of the clause by 
 "being made determinable on a contingency that may happen within 
 -a year (a). 
 
 The seventeenth section of the statute (sixteenth in the Eevised 
 Statutes, but it will probably keep its accustomed name) (b) is ex- 
 tended by Lord Tenterdeu's Act, 9 Geo. 4, c. 14, s. 7, and as so ex- 
 tended includes all executory sales of goods of the value of 10?. 
 and upwards, whether the goods be in existence or not at the time 
 of the contract. Its effect is thoroughly discussed and explained 
 by Lord Blackburn (on the Contract of Sale, *5-119) and in [145 
 Mr. Benjamin's later -work (Book 1, Part 2) (c). We will here only 
 refer very briefly to the question of what is a sufficient memoran- 
 dum of a contract within the statute. Mr. Benjamin exhibits (pp. 
 161, 1U7, sqq.), [2d Am. ed. 189, 195, sqq.J the curious difference 
 in the judicial interpretation of the "agreement" of which a mem- 
 orandum or note is required by s. 4, and the " bargain " of which 
 a note or memorandum is required by s. 17. The " agreement" of 
 s. 4 includes the consideration of the contract, so that a writing 
 which omits to mention the consideration does not satisfy the 
 words of that section (d) ; but the " bargain " of s. 17 does not. So 
 far as regards guaranties, however, this construction of s. 4 having 
 been found inconvenient is excluded by the Mercantile Law Amend- 
 ment Act 1856, 19 & 20 Vict. c. 97, s. 3, which makes it no longer 
 necessary that the consideration for a " special promise to answer 
 for the debt default or miscarriage of another person " should ap- 
 pear in writing or by necessary inference from a written docu- 
 ment (e). 
 
 The note or memorandum under the 4th as well as the 17th sec- 
 tion must show what is the contract and who are the contracting 
 
 (a) Eley v. Positive Assurance Co., 1 Ex. D. 20; [Davey v. Shannon, 4 Ex. 
 D. 81 ; Packet Co. v. Sickles, 5 Wall. 580; Harris v. Porter, 2 Harring. 27. The 
 contracts in Eley v. Positive Assurance Co.. and Davey v. Shannon, would-, in 
 this country, probably, have been held not within the statute. See cases in 
 last note but one.] 
 
 (4) The difference arises from the preamble and the enacting part of s. 13, 
 being separately numbered as 13 and 14 in former editions. 
 
 (c) Eor a shorter account, see Smith's Her. Law, 486-500. 
 
 (rf) [The rule upon this point differs in the various states. See Browne' on 
 Statute of Frauds, \ 390, sqq.] 
 
 (e) See notes to Birkmyr v. Darnell; 1 Sin. L. C; Wain v. Warlters, 2 
 
 Sm. L. C. - 
 
 159 
 
 > 
 
146 CHAP. III. FORM OF CONTRACT. 
 
 •parties (a), but it need be signed only by the party to be charged, 
 ■whether under the 4th or the 17th section : it is no answer to an 
 action on a contract evidenced by the defendant's signature to say 
 that the plaintiff has not signed and therefore could not be sued r 
 and if a written and duly signed proposal is accepted by word of 
 mouth the contract itself is completed by such acceptance and the- 
 writing is a sufficient memorandum of it (6). It has also been de- 
 cided that an acknowledgment of a signature previously made by 
 way of proposal, the document having been altered in the mean- 
 time and the party having assented to the alterations, is equivalent 
 to an actual signature of the document as finally settled and as the 
 record of the concluded contract. The signature contemplated by 
 the statute is not the mere act of writing, but the writing coupled 
 146] with the ^party's assent to it as a signature to the con- 
 tract (c) ; and the effect of the parol evidence in Buch a case is not 
 to alter an agreement made between the parties but to show what 
 the condition of the document was when it became an agreement 
 between them (d). Moreover it matters not for what purpose the 
 signature is added, since it is required only as evidence, not as be- 
 longing to the substance of the contract. It is enough that the 
 signature attests the document as that which contains the terms of 
 the contract (e). Nor need the particulars required to make a 
 
 (a) Williams v. Byrnes, 1 Moo. P. C. N. S. 154; Newell v. Radford, L. E. 3- 
 O. P. 52; Williams v. Jordan, 6 Ch. D. 517; [Grafton v. Cummings, 99 U. S. 
 100; Calkins v. Falk, 1 Abb. App. Dec. 291 ; Nichols u. Johnson, 10 Conn. 192; 
 Sherburne v. Shaw, 1 N. H. 157; Mayer •». Adrian, 77 N. C. 83. The memoran- 
 dum must show not only who are the contracting parties, but also which is tbe- 
 promiso.r and which the promisee. Bailey v. Ogden, 3 Johns. 399 ; Sanborn v. 
 Flagler, 9 Allen, 474, 476. But see Newell v. Radford, L. R. 3 C. P. 52 ; Sal- 
 mon Palls M'fg Co. v. Goddard, 14 How. 446.] And as to fsufficiency of de- 
 scription otherwise than by name, Sale v. Lambert, 18 Eq. 1 ; Potter v. Duffield, 
 lb. 4; Commins v. Scott, 20 Eq. 11 ; Beer v: London & Paris Hotel Co., lb. 
 412; Rossiter v. Miller (0. A), 5 Ch. D. 048; Catling v. King (C. A.), lb. 660; 
 [Grafton v. Cummings, 99 U. S. 100; Gowerw. Klaus, 101 Mass. 449; Walsh v.- 
 Barton, 24 0. S.28.] 
 
 (b) Smith v. Neale, 2 C. B. N. S. 67 ; 26 L. J. C. P. 143 ; Reuss ■„. Picksley, 
 in Ex. Ch. L. R. 1 Ex. 342; [Himrod Furnace Co. v. Railroad Co., 22 O.S.451; 
 Justice v. Lang, 42 N. T. 493; 52 lb. 323 ; Vassault v. Edwards, 43 Cal. 458; 
 Sanborn v. Flagler, 9 Allen, 474.] 
 
 (c) [Boardman v. Spooner, 13 Allen, 353, 358.] 
 
 (d) Stewart v. Eddowes, L. R. 9 C. P. 311. 
 
 (e) Jones v. Victoria Graving Dock Co., 2 Q. B. D. 314, 323; [Argus Co. v.. 
 
 160 
 
ETC. 145 
 
 complete memorandum be; at all contained in one document; the 
 signed document may incorporate others by reference, but the refer- 
 ence must appear from the writing itself and not have to be made 
 out by oral evidence : for in that case there would be no record of 
 a contract in writing, but only disjointed parts of a record pieced 
 out with unwritten evidence (a). One who is the agent of one 
 party only in the transaction ma}' be also the agent of the other 
 party for the purpose of signature (b). There is considerable 
 authority (though short of an actual decision) for holding that the- 
 Statute of Frauds does not apply to deeds. Signature is unneces- 
 sary for the validity of a deed at common law, and it is not likely 
 that the legislature meant to require signature where the higher and 
 more formal solemnity of sealing (as it is in a legal point of view) 
 is already present (c). But as in practice deeds are always signed 
 as well as sealed, and distinctive seals are hardly ever used except 
 by corporations, the absence of a signature would nowadays add 
 considerably to the difficulty of supporting a deed impeached oa 
 any other ground. 
 
 The law as to the sale and disposition of personal chattels is- 
 affected, in addition to the Statute of Frauds, by the Bills of 
 Sale Acts, 1854 and 1866. 17 & 18 Vict. c. 36, 29 & 30 Vict. 
 
 * 
 
 Mayor, 55 N. 5T. 495; Johnson v. Trinity Church Soc, 11 Allen, 123; Tufts o. 
 Gold Mining Co., 14 Allen, 407; Barry v. Coombe, 1 Pet. 640, 651; Himrod 
 Furnace Co. v. Railroad Co., 22 O. S. 451. 
 
 A letter signed and sent to a third person by one of the parties to a contract, 
 if it state the terms thereof, is a sufficient memorandum as against the writer. 
 Gibson v. Holland, L. K. 1 C. P. 1 ; Moore v. Mountcastle, 61 Mo. 424; Pea- 
 body v. Speyers, 56 N. Y. 230; Kleeman v. Collins, 9 Bush, 460.] 
 
 It may be doubted whether this view of the statute does not tend to thrust 
 contracts upon parties by surprise and contrary to their real intention. 
 
 (a) [Becent cases on this subject are, Kronheimu. Johnson, 7 Ch. D. 60; Rish- 
 ton ti. Whatmore, 8 Ch. D. 467] ; Peirce v. Corf, L. B. 9 Q. B. 210. Cp. Leather 
 Cloth Co. v. Hieronimus, L. B. 10 Q. B. 140; [Thayer v. Luce, 22 O. S. 62, 74; 
 Johnson v. Buck, 35 N. J. L. 338 ; Eidgway v. Ingram, 50 Ind. 145 ; Morton v. 
 Dean, 135 Met. 38; O'Donnell v. Leeman, 43 Me. 158; Prank ,». Miller. 38 Md. 
 450; Mayer v. Adrian, 77 N. C. 83. Cp. Beckwith v. Talbott, 95, IT. S. 289; 
 Long v. Miller, 4 C. P. D. 450, 454.] 
 
 (6) As to this, Murphy v. Boese, L. L. 10 Ex. 126; [Cp. Batturs -v. Sellers, 5> 
 H. & J. 117. See Browne on Statute of Frauds, \ 369, sqq.] 
 
 (c) Cherry v. Heming, 4 Ex. 631 ; 19 L. J. Ex. 631 ; Blackstone (2. 306, and. 
 see note in Stephen's Comm., 1. 510, 6th ed.) assumed signature to be necessary. 
 11 161 
 
147 CHAP. III. FORM OF CONTRACT. 
 
 «. 96 (a), and though we do not propose to enter on that subject} 
 147 '^references to some of the late decisions may perhaps be 
 found useful. 
 
 As to the validity of a series of renewed bills of sale, of which only the 
 last is registered; Bury v. Smale, L. R. 8 C. P. 64; Ramsden v. Lupton 
 (Ex. Ch.), L. R. 9 Q. B. 17 Cp., however Ex parte Cohen, 7 Ch. 20; Ex 
 parte Stevens, 20 Ex. 786; Ex parte Furber, 6 Ch. D. 181. 
 
 As to the description of residence and occupation required by s. 1, 
 Brodrick v. Scale, L. R. 6 C. P. 98; Jones v. Harris, L. R. 7 Q. B. 157; 
 Grant v. Shaw, lb. 700; Larchin v. N. W. Deposit Bank, L. R. 8 Ex. 80; 
 10 Ex. 64, in Ex. Ch. ; Murray v. Mackenzie, L. R. 10 C. P. 625; Smith v. 
 Cheese, 1 C. P. D. 60. 
 
 What is a defeasance or condition within s. 2; Ex parte Collins, 10 
 Oh. 367. 
 
 As to the equitable assurances being within the Act, so that an agree- 
 ment to execute a bill of sale can not be relied on as an equitable assur- 
 ance unless registered, Ex parte Mackay, 8 Ch. 643; Ex parte Conning, 
 16 Eq. 414. 
 
 As to the interpretation clause, s. 7, "Fixtures," Hawtryu. Butlin, L. 
 R. 8 Q. B. 290; Ex parte Daglish, 8 Ch. 1072; Ex parte Barclay, 9 Ch. 566; 
 Meux v. Jacobs, L. R. 7 H. L. 481. 
 
 What acts sufficient to take goods out of the possession or " apparent 
 possession" of the grantor; Emanuel v, Bridger, L. R. 9 Q. B. 286; Pick- 
 ard v. Marriage, 1 Ex. D. 364. 
 
 " Formal possession; " Ex parte Jay, 9 Ch. 697 (b). 
 
 Assignee of interest under bill of sale takes subject to his assignor's 
 -duty as to registration, and re-registration under the Act of 1866; Karet 
 «. Kosher Meat Supply Association, 2 Q. B. D. 361. 
 
 Transfers of British ships are required by the Merchant Shipping 
 Act 1854 (s. 55 sqq.) to be in the form thereby prescribed (c). 
 Assignments of copyright are directly or indirectly required by 
 the various statutes on that subject to be in writing (d), and in the 
 case of sculpture by deed attested by two witnesses (54 Geo. 3, c. 
 56, s. 4). But we are not aWare of any thing that makes it neces- 
 sary for an executory agreement for an assignment of copyright 
 
 (a) [Acts simitar in their general purpose to the English Act are in force in 
 various states of this country.] 
 
 {b) This case and Ancona v. Rogers, 1 Ex. D. 285, show that for the purposes 
 of the Act it does not matter whether the possession or apparent possession of 
 the grantor is with the consent of the true owner, or not. 
 (a) [See $ 4170, 4192 E. S. U. S., 2d ed.] , , 
 
 - (d) Leyland v. Stewart, 4 Ch. J). 419. [As to assignments of copyrights and 
 patents, see respectively J 4955 and g 4898 E. S. U. S., 2d ed.] 
 162 
 
BILLS OP SALE ACTS, ETC. 148, 149 
 
 "to be in writing. And informal executory agreements for the sale 
 •or mortgage of ships seem now to be valid as ^between the [148 
 parties, though under earlier Acts it was otherwise (a). 
 
 There is "An Act to avoid Horse-stealing," of 31 Bliz. c. 12, 
 which prescribes sundry forms and conditions to be observed on 
 -sales of horses at fairs and markets, and " every sale, gift, ex- 
 change, or other putting away of any horse, mare, gelding, colt or 
 filly, in fair or market, not used in all points according to the true 
 meaning aforesaid shall be void." The earlier act on the same sub- 
 ject, 2 & 3 Phil. & Mary, c. 7, only deprives the buyer of the 
 benefit of the peculiar rule of the common law touching sales in 
 market overt. These statutes are believed to be in practice in- 
 operative. 
 
 JB. Marine Insurances. 
 
 By 30 Vict. c. 23, s. 7, marine insurances must (with the excep- 
 tion of insurances against owner's liability for certain accidents) 
 be expressed in a policy. 
 
 But the words are not so strict as those of the repealed stat- 
 utes on the same subject, and the preliminary " slip," which in 
 practice though not in law is treated as the real contract, has for 
 many purposes been recognized by recent decisions. These will be 
 -spoken of in another place under the head of Agreements of Im- 
 perfect Obligation (chap. XII). 
 
 C. Transfer of Shares. 
 
 There is no general principle or provision applicable to the 
 transfer of shares in all companies. But the general or special 
 Acts of Parliament governing classes of companies or particular 
 ■companies always or almost always prescribe forms of transfer. 
 
 In cost-book mining companies it seems that no particular form 
 is needed, and an executory contract for the sale of shares need 
 not, as a rule, be in writing. It would be useless to enter here into 
 -details ; the reader will find full information in Mr. Justice Lind- 
 ley's treatise, 1. 723 sqq. 
 
 Assuming joint stock partnerships with transferable shares 
 to be lawful at common law (which is the better opinion) their 
 *sharos should be transferable without writing in the ab- [149 
 sence of agreement to the contrary. But for reasons elsewhere 
 _given this is now of no practical importance. 
 
 (a) Maude and Pollock on Merchant Shipping, 3d ed., pp. 23, note, 33-35. 
 And see the Amendment Act of 1862, 25 and 26 Vict., c. 63, s. 3. 
 
 163 
 
150 CHAP. III. FORM OP CONTRACT. 
 
 D. Acknowledgment of barred debts. 
 
 The operation of the Statute of Limitation, 21 Jac. 1, c. 16, im 
 taking away the remedy for a debt may be excluded by a subse- 
 quent promise to pay it, or an acknowledgment from which such 
 promise can be implied. The promise or acknowledgment, if ex- 
 press, must be in writing and signed by the debtor (9 Geo. 4. c. 14,. 
 s. 1) or his agent duly authorized (19 & 20 Vict, c. 97, s. 13). The 
 subject calls for mention here, especially as the promise or ac- 
 knowledgment is for some purposes a new contract. But we say 
 more of it under the head of Agreements of Imperfect Obligation,. 
 Ch. XII, below. 
 
 A short account of some of the foreign laws which correspond 
 more or less closely to our Statute of Frauds may perhaps be not 
 without interest. 
 
 The projected Civil Code of New York adopts the chief provisions of 
 the Statute of Frauds in terms which to some extent embody the results- 
 of leading English decisions (ss. 794, 865, 1537). It has been very justly 
 observed that in England the statute ought to have been repealed and 
 re-enacted half a dozen times to represent the real state of the law. 
 
 The Civil Code of Lower Canada, s. 1235, adopts in substance the 17th 
 section as extended by Lord Tenterden's Act. The foundation of Lower 
 Canadian law is French, and the code is in a general way modeled on the 
 Code Napoleon : but this is not the only place in which English law had 
 a marked influence on it. 
 
 The French Code (Art. 1341-8) requires an instrument in writing when 
 the subject-matter of the contract exceeds the sum or value, of 150fr. 
 This is understood (like the 17th section of our statute as distinguished 
 from the 4th) to be a rule of the lex contractus, not of the lex fori: see the 
 note in Sirey & Gilbert's Codes Annotes. Also compromises must be in 
 writing (Art. 2044). 
 
 The Italian Code adds to and modifies this. The general limit of value 
 is fixed at 500 instead of 150 lire (Art. 1341). Moreover several particu- 
 lar kinds of contracts have to be in writing, of which the chief are sales 
 of immovable property, certain contracts as to servitudes and other real 
 rights, leases for more than nine years, grants of annuities, and compro- 
 1501 mises (Art. 1314). Both in French and in *Italian law the instru- 
 ment in writing (acte sousseing prive, scrittura private/) is of no avail unless 
 signed, and that, it seems, by all parties: moreover there must be actual 
 written signature, not a mark. (Codes Annotes, on Art. 1322 sqq. ; Maz- 
 zoni, Diritto Civ. Ital. Bk. 3. Pt. 2. j) 171). The only resource of illiterate 
 persons is apparently to call in a notary so as to give the instrument a yet- 
 higher degree of solemnity as an " authentic act" And unilateral con- 
 tracts are subject to certain additional forms. 
 164 
 
FOREIGN LAWS. 150 
 
 The Prussian Landreoht (Part. 1 . Tit. 5. § 131) requires a writing where 
 -the value of the subject-matter exceeds fifty thalers. 
 
 From the operation of all these laws, however, commercial contracts 
 -are excepted : in France (and consequently in Italy) by the construction 
 put in practice upon general words saving ihe commercial, law (a), which 
 are held without more to show that the substantive part of the enactment 
 •does not apply to. any thing governed by the Commercial Codes (Codes 
 Annotes, § 3 of note, and Cattaneo & Borda, on Art. 1341 of Fr. & Ital. 
 Codes respectively): and in Prussia, by the express terms of the German 
 Commercial Code, which it is presumed override the laws' of all particular 
 -German states (b). The last-named Code requires a solemn instrument 
 for the formation of companies (174, 208), and a contract in, writing to 
 enable a pledgee to exercise a summary power of sale (310, 311) (c). 
 
 More strict is the Spanish Cocligo de Comercio (Art. 237) which fixes 
 the value of 1,000 reals (=£10 8s. 4d.) as that above which commercial 
 • contracts must be in writing: but for the sales in market overt (feriasy 
 mercados) the limit is increased to 3,000 reals. 
 
 The Australian Civil Code is said to contain no general provision of 
 this kind, but to require forms in several particular cases (Savigny, Obi. 
 2. 248). 
 
 (a) Le tout sans prejudice de ce qui est present dans les lois relatives au 
 -commerce, Code Civ. 1341; the words of the Italian Code are affirmative, but 
 
 to the same effect. 
 
 (b) Art. 317. Bei Handelsgeschaften ist die Giiltigkeit der Vertrage durch 
 schriftliche Abfassung oder andere Formlichkeiten nich bedingt. 
 
 (c) With leave of the Court obtained ex parte, or without it, if there is an 
 -express contract to that effect. 
 
 165 
 
151, 152 OHAP. IV. CONSIDERATION. 
 
 151] *CHAPTER IV. 
 
 CONSIDERATION. 
 
 As regards many if not most of its principles the English law 
 of Contract is founded on or identical with the .Roman. But the 
 doctrine of Consideration, at least in the generality of form and 1 
 application in which we now have it, is believed to be peculiar to- 
 England. A good description of the technical meaning of Consid- 
 eration is to be found in Sir W. D. Evans' appendix to Pothier oit 
 Obligation (No. 2) : "Any act by which the person making the 
 promise has benefit, or the person to whonj it is made has any 
 labor or detriment" (a) ; and a fuller one has lately been given in 
 the Exchequer Chamber : "A valuable consideration, in the* sense 
 of the law, may consist either in some right, interest, profit or ben- 
 efit accruing to the one party, or some forbearance, detriment, loss, 
 or responsibility, given, suffered, or undertaken by the other " (b). 
 
 In the last chapter we saw that the causa which gave validity 
 to such informal contracts as in Eoman law were allowed to be 
 valid might perhaps in practice cover approximately the same 
 ground as our consideration — that is after the enforceable classes of 
 contracts had been largely extended by the Praetor's Edict an& 
 otherwise — but was not the same thing. We also mentioned that 
 this causa has persisted in modern French jurisprudence. Here it 
 is greatly extended in its meaning, but yet so as never to coincide 
 with the English term. 
 
 152] *The difference is instructive enough to be worth dwell- 
 ing upon a little. We read in the French Code Civil, following 
 Pothier : " L'obligation sans cause, ou sur une fausse cause, ou sur 
 une cause illicite, ne peut avoir aucun effet " (c). Looking at this 
 text alone, nothing would at first sight seem more natural to an 
 
 (a) Cp. the remarks of the Court in Edgware Highway Bd. v. Harrow Gas- 
 Co., ]j. K. 10 Q. B. 92, 95. And see the fuller definition in the Indian Contract- 
 Act, already given in eh. 1. 
 
 (6) Currie v. Misa, L. K. 10 Ex. at p. 162, per Cur., referring to Com. Dig- 
 Action on the Case, Assumpsit B. 1-15. 
 
 (c) Code Civ. 1131, Pothier Obi. \ 42. 
 166 
 
HISTORY OP THE DOCTRINE. ' ]5$ 
 
 English lawyer than simply to translate cause by consideration. 
 But let him turn to a French commentary on the Code, and he- 
 finds no distinct and comprehensive definition of cause as a legal. 
 term of art, but a scbolistic discussion of efficient, final, and im- 
 pulsive causes (a). Going on to see what is in fact included in the- 
 cause of the French law, we find it wider than our Consideration 
 in one way and narrower in another. On the one hand the ex- 
 istence of a natural, [i.e. moral] obligation, or even of a real or 
 supposed duty in point of honor only (b), may be quite enough. 
 Nay, the deliberate intention of conferring a gratuitous benefit, 
 where such intention exists, is a sufficient foundation for a binding 
 unilateral promise: " Dans les contrats de bienfaisance, Ja liberalite 
 que I'nne des parties veut exercer envers l'autre est une cause 
 suffisante de l'engagement qu'elle contraete envers elle." (Pothier, 
 I.e.) (c). The meaning of sans cause seems accordingly to be con- 
 fined to cases of what we should call total failure (as distinguished 
 from mere absence) of consideration (rf). On the other hand there- 
 is this limitation, that the promisee must have an interest in the- 
 subject-matter of the promise which is apparent and capable of es- 
 timation (Pothier §§ 54, 55, 60). This doctrine seems to have 
 arisen from a doubtful extension, if not a misunderstanding, of tho 
 technical rules which governed the Eoman Stipulation. Of course- 
 a contract between A. and B. can not as a rule give a right of ac- 
 tion to O, but the maxim Alte.ri stipulari nemo potest (e) is relied on 
 by French jurisprudence as equivalent to the wider general proposi- 
 tion that a promise by A. to B. to do something for C.'s *ben- [153 
 efit gives no right of action to anyone. Pothier puts this case: 
 The owner of a wall opposite my friend's window promises at my 
 request to whitewash if so as to give my friend more light : I can 
 not sue him for not doing it, though I had promised to pay him 
 for it and should have been liable to pay for the work if done. In 
 
 (a) Demolombe, Cours du Code Nap. 24. 329. 
 
 (i) " Desir de satisfaire aux lois de l'honneur et de la delicatesse." Sirey and 
 Gilbert, Codes Annotfe, ad loc. ; Demolombe, op. eit., p. 335. 
 
 (c) The same in the modern law ; see extract from Rogron in Langdell's Sel. 
 Ca. on Cont. 169. 
 . (d) Demolombe, op. cit., p. 342. 
 
 (e) D. 4-3. 1. de v. o. 38, \ 17. The rule could always be escaped by inserting 
 a liquidated penal sum payable to the stipulator : a Stipulation thus framed, 
 "Willyou pay so much to J. S. on such a day? would be naught, hut if it ran, 
 "Will you pay so much to me if you do not pay J. S. ? it was good enough. 
 
 167 
 
154 CHAP. IV. CONSIDERATION. 
 
 English phrase the rule would seem to come to this : — there can be 
 jio contract where the nature of the agreement is such that the 
 promisee could recover only nominal damages for a breach of it. 
 But it seems the doctrine is not much favored, and slight circum- 
 stances are laid hold of to exclude its application, e.g.. a contingent 
 legal liability of the promisee in respect of the subject-matter. The 
 Code (Art. 1119) expresses no more in terms than the Latin 
 maxim, but is of course construed in the same way (a). In the 
 Civil Code of Lower Canada, however, we find the English consid- 
 eration introduced, professedly as a synonym of cause (ss. 984, 
 •989) : it would seem, therefore, that the English jurisprudence on 
 this point has been there introduced by English lawyers, and has 
 in effect supplanted the French by its greater convenience and 
 simplicity. 
 
 Notwithstanding these differences it seems very possible that the 
 English Consideration may be directly descended from the Eoman 
 Causa. The Eoman theory whether in its classical or in its modern 
 shape falls short of the completeness and common sense of our own ; 
 but only one step seems wanting (6). If the Eoman lawyers or 
 the civilians in modern times had ever fairly asked themselves 
 what were the common elements in the various sets of facts which 
 under the name of causa made various kinds of contracts actionable, 
 they could scarcely have failed to extract something equivalent to 
 our Consideration. 
 
 The fact that they did not take that step is much more difficult 
 to account for than the fact, if a fact it be, that we did. But the 
 history of the English doctrine is obscure, at least the present 
 writer has found it so. The most we can affirm is that the general 
 154] idea was formed somewhere in the latter part of the *fifteenth 
 century; that at the same time or a little later nudum pactum lost 
 its ancient meaning, (viz. an agreement not made by specialty so 
 as to support an action of covenant, or falling within one of certain 
 •classes so as to support an action of debt) and came to mean what 
 it does now ; and that the word Consideration in the sense now 
 before us came into use, at least as a settled term of art, still later. 
 It is hardly needful to mention that in the early writers Considerare, 
 Consideratio always mean the judgment of a court : this usage has 
 
 (a) Codes Annot&, ad loc. ; Demolombe, op. eit., p. 198. 
 (6) Ulpian once comes near to taking it: D. 19. 5. de praescr. verbis, 15; 
 Hunter's Roman Law, 373. 
 108 
 
HISTORY OF THE DOCTRINE. 155 
 
 been preserved down to our own time in the judgments of the 
 •common law courts in the form " It is considered." 
 
 The early cases of actions of assumpsit, of which we gave a 
 specimen in the last chapter, show by negative evidence which is 
 almost conclusive that in the first half of the 15th century the doc- 
 trine of Consideration was quite unformed. But in 1459 we find a 
 great advance in a case to which we have already referred as 
 showing that an action of debt would then lie on any consideration 
 executed. The case was this : Debt in the Common Pleas on an 
 agreement between the plaintiff and defendant that plaintiff should 
 many one Alice, the defendant's daughter, on which marriage de- 
 fendant would give plaintiff 100 marks. Averment that the mar- 
 riage had taken place and the defendant refused to pay. Danvers, 
 .J., said : " The defendant has Quid pro quo: for he was charged with 
 the marriage of his daughter and by the espousals he is discharged, 
 ,•60 the plaintiff has done what was to be paid for. So if I tell a 
 man, if he will carry twenty quarters of wheat of my master 
 Prisot's to &., he shall have 40s., and thereupon he carry them, lie 
 shall have his action of debt against me for the 40s. ; and yet the 
 thing is not done for me, but only by my command: so here he shows 
 that he has performed the espousals, and so a good cause of action 
 has accrued to him : otherwise if he had not performed them " (a). 
 Moile, J., agreed :. Prisot, C. J., and Danby, J., thought such an 
 action not maintainable except on a specialty, and an objection was 
 also taken to the jurisdiction on the ground of marriage being a 
 : spiritual matter (ep. p. 143 supra') : the case was adjourned and the 
 result is not stated. It is pretty clear however that Danvers at 
 any rate had grasped the leading and ^characteristic point [153 
 •of the modern learning of Consideration — namely, that when a 
 thing is done at a man's request the law does not ask whether it is 
 for his apparent benefit, but takes it as against him to be of the 
 value he has himself chosen to put upon it. The word is not here 
 used, but the thing is expressed by Quid pro quo ; so it is in another 
 ■ curious case of the same year, where a bond given for an assign- 
 ment of debts was decreed in Chancery to be canceled, for the 
 reason that no duty (p) was vested in the assignee by the assign- 
 ment, so that he had not Quid pro quo for his bond. Whence it 
 
 (a) M. 37 II. 6. 8, pi. 18. 
 
 (b) Sic in the book: the word is here and elsewhere used with a double as- 
 pect, like obligatio, as debt still is. 
 
 169 
 
156 CHAP. IV. CONSIDERATION. 
 
 seems that an assignment of debts was not then recognized us cre- 
 ating any right which could be enforced in equity (a). Some time- 
 later we find the principle expressed thus : If I promise J. S. a cer- 
 tain sum for the commons [board] of J. D., an action of debt lies- 
 for this, " car la ley intend que J. S. est un tiel per que service jeo- 
 aie advantage" (b). In the Doctor and Student (a. d. 1530) we 
 find substantially the modern doctrine, though this last point is not 
 particularly ♦mentioned. The following passage shows that the 
 notion of nudum pactum was then completely transformed : 
 
 Arid a nude or naked promise is where a, man promiseth another to 
 give him certain money such a day, or to build an house, or to do him such' 
 certain service, and nothing is assigned for the money, for the building,, 
 nor for the service; these be called naked promises because there is- 
 nothing assigned why they should be made; and I think no action lieth. 
 in those cases, though they be not performed. (Dial. 2, c. 24.) 
 
 Not many lines below this passage the word Consideration is- 
 used, but in such a way as to make it probable that the writer did 
 not regard it as a technical term. But so far as we know the first, 
 full <di8Cussion of Consideration by that name is in Plowden's re- 
 port of Sharington v. Strotton (Mich. 7 & 8 Eliz.) (c). The ques- 
 tion in the case was whether natural love and affection was a good' 
 consideration to support a covenant to stand seized to uses. The- 
 action was trespass, and the defendants justified as servants of 
 156] parties entitled under the covenant. *The argument for the 
 plaintiffs insists on "value or recompence " as the essence of Con- 
 sideration, and shows a full understanding of the law in its mod- 
 ern sense. Among oiher cases, marrying the promisor's daughter 
 at his request, is put as a good consideration. The argument for 
 the defendants is long and desultory and goes into much irrelevant 
 matter about Aristotle, the utility of marriage, and the Law of 
 Nature; and the notion is brought in that the consideration for a 
 promise must show some apparent benefit to the promisor; it is 
 said that a promise to pay money in consideration of marriage,, 
 such as above mentioned, would be nudum pactum but for regard' 
 to Nature (d). It is also said that every deed imports a considera- 
 te Hil. 87 H. 6. 13, pi. 3. 
 
 (h) 1 Kol. Ab. 593, pi. 7, citing 17 B. 4. 5; and see other cases and dicta there 
 collected. 
 
 («) Plowd. 298, 302. 
 
 (rf) It is curious that the case was argued on principle without any reference* 
 170 
 
HISTORY OP THE DOCTRINE. 157" 
 
 tion, viz., the will of him that made it. But this seems a desper- 
 ate argument. For it must be remembered that the common law 
 rule of a deed wanting no consideration at all was inapplicable (a). 
 Before the Statute of Uses a merely gratuitous agreement or dec- 
 laration of uses without any transfer of legal possession was in- 
 effectual to create a use even if made by deed; and the Statute exe- 
 cutes a legal estate only where before the Statute there would have 
 been a use enforceable in equity. In the result the Court held that- 
 the covenant was effectual to transfer the use, natural love and affec- 
 tion being a sufficient consideration to support it. It does not appear 
 whether they were prepared to go the whole length of the argu- 
 ment for the defendants and hold natural love and affection a good 
 consideration for contracts of all sorts. a. 
 
 As is well shown by this case, the question of Consideration was 
 of importance in the learning of Uses before the statute (and there 
 is nothing but the precautions embodied in the settled practice of 
 conveyancers to prevent it from being so now, as indeed it might 
 still be, in spite of those precautions, in exceptional cases). And 
 the reflection is obvious that both the general conception and the 
 name of Consideration may well have had their origin in the Court 
 of Chancery and the law of Uses, and have been thence imported 
 into the law of contracts' rather than developed by the common 
 law courts. On this hypothesis the connection with the Roman 
 causa would, if any thing, be *more likely than on the other. [157 
 A more complete search than we have been able to make might 
 perhaps be rewarded by the discovery of positive evidence on this 
 point. 
 
 It was the work of a very long time to settle the doctrine in all 
 points as we now have it. A curious illustration of the extent to 
 which it was left open even in the last century is furnished by 
 Pillans v. Van JVlierop (b). The actual decision was on the very 
 sound, principle (characteristic, as we have seen, of our law) that 
 " any damage to another or suspension or forbearance of his right 
 is a foundation for his undertaking and will make it binding, 
 though no actual benefit accrues to the party undertaking" (c). 
 
 to precedents in the Court of Chancery. It can scarcely have been of first 
 impression. > r 
 
 (a) The passage is cited in some modern books as an illustration of or au- 
 thority for that rule, but manifestly per incuriam. 
 
 (6) 3 Burr. 1664. (c) Per Yates, J., at p. 1674. 
 
 171 
 
158 CHAP. IV. CONSIDERATION. 
 
 But Lord Mansfield threw out the suggestion (which Wilmot, J., 
 showed himself inclined to follow, though not wholly committing 
 himself to it) that there is no reason why agreements in writing,, at, 
 all events in commercial affairs, should not be good without any 
 consideration. "A nudum pactum does not exist in the usage and 
 law of merchants. I take it that the ancient notion about the w:int 
 of consideration was for the sake of evidence only . . . in 
 commercial cases amongst merchants the want of consideration is 
 not an objection " (a). It is true that this was and has remained a 
 solitary dictum barren of results; its anomalous character was 
 rightly seen at the time and it has never been followed; but the 
 fact that such an opinion could be expressed at all from the bench 
 is sufficiently striking. This suggestion of setting up a new class 
 of Formal Contracts (for such would have been the effect) came, 
 as it was, too late to have any practical influence. But if it had 
 occurred a century or at any rate two centuries earlier to a judge 
 of any thing like Lord Mansfield's authority, the whole modern de- 
 velopment of the English law of conti*act might have been changed, 
 and its principles might have been (with only minute theoretical 
 differences) assimilated to those of the law of Scotland (b). 
 
 At least one other point of great importance remained open 
 even in practice down to a much later time. The anomalous doc- 
 trine that the existence of a previous moral obligation is enough 
 158] to support an express promise was held by eminent *judges 
 a few generations back, and was overruled only in 1840 by the de- 
 cision of the Exchequer Chamber that "a mere moral obligation 
 arising from a past benefit not conferred at the request of the de- 
 fendant " is not a good consideration (c). 
 
 (a)' 3 Burr. 1069-70. 
 
 (6) [But see the remarks of Prof. Langdell (Sel. Cas. Cont., p. 1013 sqq.), 
 amounting, in the writer's opinion, to a demonstration of the fact that, on 
 principle, bills of exchange and promissory notes are binding of their own 
 force and require no consideration.]' 
 
 (c) Eastwood v. Kenyon, 11 A. & E. 438, 446; [Mills v. "Wyman, 3 Pick. 
 207; Wiggins v. Keizer, 6 Ind. 252; Hendricks v. Robinson, 56 Miss. 694; 
 Dearborn v. Bowman, 3 Met. 155 ; Updike v. True, 2 Beasl. 151 ; Shepard v. 
 Ehodes, 7 R. I. 470. No past consideration will support an express promise; 
 Johnson •». Johnson's Adm'r, 31 Pa. St. 450; Whitford v. Chamberlin, 102 
 Mass. 448 ; Summers v. Vaughn, 35 Ind. 323 ; Hopkins ». Richardson; 9 Gratt. 
 485; Shealy v. Toole, 56 Ga. 210; Leake on Cont., 2d ed., 19-20, 613; Anson 
 ■ on Cont. 84 sqq. 
 
 "Where a part of the consideration is past, and a part is not, it is enough to 
 172! 
 
ADEQUACY NOT MATERIAL. 158 
 
 It is a corollary from the rule above shown to be a distinguish- 
 ing mark of English jurisprudence that the amount of the consid- 
 eration is not material. " The value of all things contracted for is- 
 measured by the appetite of the contractors, and therefore the just 
 value is that which they be contented to give" (a). 
 
 It is accordingly treated as an " elementary principle that the law 
 will not enter into an inquiry as to the adequacy of the considera- 
 tion " (b). This is of long standing, and illustrated by many 
 cases. " When a thing is to be done by the plaintiff, be it never so- 
 small, this is a sufficient consideration to ground an action " (c). 
 The following arc modern examples. If a man who owns two 
 boilers allows another to weigh them, this is a good consideration 
 for that other's promise to'give them up after such weighing in as 
 good condition as before. " The defendant," said Lord Denman, 
 "had some, reason for wishing to weigh the boilers, and he could 
 do so only by obtaining permission from the plaintiff, which he did 
 obtain by promising to return them in good condition. We need 
 not inquire what benefit he expected to derive" (d). So, parting 
 with the possession of a document, though it had not the value the 
 parties supposed it to have (e), and the execution of a deed (f), 
 
 sustain a promise: Loomis v. Newhall, 15 Pick. 159; Wiggins v. Keizer, 6 
 Ind. 252 ;, Roberts v. Griswold, 35 Vt. 496.] 
 
 (a) Hobbes, Leviathan, pt. 1. e. 15. 
 
 (6) Westlake v. Adams, 5 C. B. N:S. 248, 265; 24 L. J. C. P. 271, per 
 Byles, J. [Lawrence v. McCalmont, 2 How. 426, 452; Goree v. Wilson, 1 Bai- 
 ley, 597; Hind v. Holdship r 2 Watts, 104; Worth v. Case, 42 N. Y. 362, 369; 
 Smock v. Pierson, 68 Ind. 405; Train „. Gold, 5 Pick. 380, 384; Perkins v. 
 Clay, 54 N". H. 518, 520. 
 
 But where the consideration on each side is the payment of a fixed sum of 
 money, see Shepard v. Rhodes, 7 R. I. 470 ; Schnell v. Nell, 17 Ind. 29.] 
 
 (c) Sturlyn v. Ablany, Cro. Bliz. 67, and see Cro. Car. 70, and marginal ref- 
 erences there. "A. is possessed of Blackacre, to which B. has no manner of" 
 right, and A. desires B. to release him all his right in Blackacre, and promises 
 him, in consideration thereof, to pay him so much money ; surely this is a good 
 consideration and a good promise, for it puts B. to the trouble of making a re- 
 lease. 1 ' Holt, C. J., 12 Mod. 459, cited in Viner's Abr. Plea and Pleadings, G., 
 pi. 9. [See Kerr v. Lucas, 1 Allen, 279.] 
 
 (d) Bainbridge v. Firmstone, 8 A. & E. 743. 
 
 («) Haigh v. Brooks (Q. B. and Ex. Ch.), 10 A. & E. 309, 320, 334. Or let- 
 tine the promisor retain possession of a document to which the promisee is en- 
 titled : Hart v. Miles, 4 C. B. ST. S. 371 ; 27 L. J. C. P. 218. 
 
 ( /) Cp. Jones v. Waite, 9 CI. and P. 101. 
 
 173 
 
159 CHAP. IV. CONSIDERATION. 
 
 though invalid for want of statutory requisites (a), have been held 
 good considerations. In the last mentioned ease the justice of the 
 • decision was very plain: the deed was an apprenticeship indenture 
 which omitted to set forth particulars required by the statute of 
 Anne then in force (b) : the apprentice had in fact served his time, 
 159] so that *the benefit of the consideration had been fully en- 
 joyed. In like manner a license by a patentee to use the patented 
 invention is a good consideration though the patent should turn 
 out to be invalid (c). In a late case in the Supreme Court of the 
 United States a release of a supposed right of dower, which the 
 parties thought necessary to confirm a title, was held a good con- 
 sideration for a promissory note (d). Decided cases in equity to 
 the same effect are not wanting. It has been held that a transfer 
 of railway shares on which nothing has been paid is a good con- 
 sideration (e) ; and that if a person indebted to a testator's estate 
 pays the probate and legacy duty on the amount of the debt, this 
 is a good consideration for a release of the debt by the residuary 
 legatees (/) : a strong case, for this view was an after-thought to 
 support a transaction which was in origin and in intention cer- 
 tainly gratuitous, and in substance an incomplete voluntary re- 
 lease; the payment was simply by way of indemnity, it being 
 thought not right that the debtor should both take his debt out of 
 the estate and leave the estate to pay duty on it. The consent of 
 liquidators in a voluntary winding-up to a transfer of shares is a 
 good consideration for a guaranty by the transferor for the pay- 
 ment of the calls to become due from the transferee {g). An agree- 
 ment to continue — i.e., not to determine immediately — an existing 
 service terminable at will, is likewise a good consideration (A). 
 
 (a) Westlake v. Adams, 5 C. 13.N.S. 248, 265; 24 L. J. C. P. 271, per Byles, J. 
 
 (b) 8 Ann. ^. 5 (9 in Kuffh.) rep. Inland Eevenue Repeal Act, 1870, 33 & 
 34 Vict., c. 99. See now the Stamp Act, 1870, 33 & 34 Viet., c. 97, s. 40. 
 
 (c) Lawes v. Purser, 26 L. J. Q. B. 25 ; [Kinsman v. Parkhurst, 18 How. 289 ; 
 Davis v. Gray, 17 O. S. 331; Bartlett v. Holbrook, 1 Gray, 114; Wilder v. Ad- 
 ams, 2 Woodb. & Min. 329; Marston v. Swett, 66 N. Y. 206.] 
 
 (rf) Sykes v. Chadwick, 18 Wall. 141. 
 
 (e) Cheale v. Kenward, 3 De G. & J. 27. 
 
 ( /) Taylor v. Manners, 1 Ch. 48, by Turner, L. J. dub. Knight Bruce, L. J. 
 
 (g) Oleve v. Financial Corporation, 16 Eq. 363, 375. 
 
 (A) Gravely v. Barnard, 18 Eq. 518. [So, conversely, is an agreement to 
 change a hiring from year to year to a service terminable at will; Hildreth v. 
 .Pinkerton Academy, 9 Fost. 227; cp. inpra, 162, note (c) ]. 
 174 
 
ADEQUACY NOT MATERIAL. 1G0 
 
 The principle of all these cases may be summed up in the state- 
 ment made in so many words by the judges in more than one of 
 -them, that the promisor lias got all that he bargained for. There 
 has been another rather peculiar case in equity which was to this 
 effect. An agreement is made between a creditor, principal debtor, 
 and surety under a continuing guaranty, by which no new un-. 
 dcrtaking is imposed on the surety, but additional remedies are 
 given to the creditor, which he is to enforce if requested to do so 
 by the surety. Held, that if by his own ^negligence the [I(JO 
 creditor deprives himself of the benefit of these remedies, the surety 
 is discharged. The real meaning of what is there said about con- 
 sideration seems to be that as between the creditor and the surety 
 it is not material (a). Closely connected in principle with the 
 foregoing class of cases, though not identical with them, is the rule 
 that the consideration for a promise may well be contingent, that 
 is, it may consist in the doing of something by the promissee which 
 he need not do unless he chooses, but which being done by him the 
 contract is complete and the promise binding (&). If a tradesman 
 agrees to suppty on certain terms such goods as a customer may 
 order during a future period, he can not sue the customer for not 
 ordering any goods, but if the customer does order any the cou- 
 
 (a) Watson tf. Allcock, 4 D. M. G. 242. The guaranty was determinable by 
 notice from the surety, and it was suggested, by way of supplying a new con- 
 sideration, that on the faith of the creditor's increased remedy the surety might 
 in fact have abstained from determining it. But surely this will not do: the 
 true ground is the creditor's original duty to the surety, which covers subse- 
 quently acquired-rights and remedies. 
 
 (b) [Executory contracts are of two kinds, bilateral and unilateral. When 
 the consideration on each side is a promise, the contract is bilateral ; a binding 
 promise, the consideration of which is any thing else than » promise, is » 
 unilateral contract; see Langdell Sel. Ca. Cont., 1092-1094. -Where one 
 promises to pay another a certain sum of money for doing a particular thing, 
 which is to be done before the money is paid, and the promisee does the thing 
 upon the faith of the promise, the promise, which was before a mere revocable 
 offer, thereby becomes a complete contract upon a consideration moving from 
 the promisee to the promisor, as in the ordinary case of an offer of reward." 
 Cottage Street Church v. Jvendail, 121 Mass. 528; infra, p. 176, p. 180, note (£). 
 
 " If one party promise another to pay him a sum of money if he will do a par- 
 ticular act, and the other does the act before the revocation of the promise, the 
 promise thereupon becomes binding, although the promisee does not at the time 
 engage to do the act;'' Barnes v. Perrine, 9 Barb. 202; Turnpike Co. v. Coy, 13 
 O. S. 84, 93; L'Amoureux v. Gould, 7 N. Y. 349; Morse v. Bellows, f N. H. 
 549; Train v. Gold, 5 Pick. 380, 385; .Matthews v. Pitch, 22 Cal. 86.] 
 
 175 
 
1G() CHAR IV. CONSIDERATION. 
 
 dition is fulfilled, the consideration is perfected, and there is a com- 
 plete contract which the seller is bound to perform (a). , 
 
 Inadequacy of consideration coupled with other things may 
 however be of great importance as evidence of fraud, etc., when 
 the validity of a contract is in dispute: and it has been considered 
 .(though, it is believed, the better opinion is otherwise) to bo of 
 itself sufficient ground for refusing specific performance. ThU 
 
 (a) G. N. Ey. Co. v. "Witham, L. E. 9 C. P. 16. [In this case defendant^ 
 in answer to an advertisement for tenders for the supply of stores for a 
 period of twelve months, wrote to plaintiffs as follows : " I, the undersigned, 
 hereby undertake to supply the G. N. By. Co., for twelve months from the 1st 
 of November, 1871, to 31st of October, 1872, -with such quantities of each 
 or any of the several articles named in the attached specification, as the- 
 company's storekeeper may order, from time to time, at the price set 
 opposite each article respectively, and agree to abide by the conditions 
 stated on the other side. (Signed,) Samuel Witham.'' Plaintiffs' officer re- 
 plied: "Mr. S. Witham — Sir: I am instructed to inform you that my directors- 
 have accepted your tender, dated, etc., to supply this company, at Doncastei- 
 station, any quantity they may order during the period ending 31st of October, 
 1872, of the descriptions of iron' mentioned on the inclosed list, at the prices 
 specified therein. The terms of the contract must be strictly adhered to. Re- 
 questing acknowledgment of the receipt of this letter (Signed), S. Fitch, As- 
 sistant Secretary." Defendant replied, acknowledging receipt. The accept- 
 ance here seems a clear example of what Mr. Pollock, supra, p.. 26, calls an il- 
 lusory promise. It is impossible to see to what it binds the railway company, 
 so as to furnish a consideration for defendant's promise. If the plaintiffs had 
 agreed to take of defendant all such articles named in the specification as they 
 might require for their road during the period named, this would have implied, 
 a promise by plaintiffs during that time not to purchase any such articles from 
 any one but defendant, which would have been a good consideration ; Smith- 
 v. Morse, 20 La. Ann. 220. 
 
 Even such an agreement has been, but, it is submitted, erroneously, held 
 without consideration ; Bailey v. Austrian, 19 Minn. 535. 
 
 The letter of acceptance could not give rise to a unilateral contract, as sug- 
 gested by Brett, J., at p. 19, for the reason, in addition to the fact that the ac- 
 ceptance was only illusory, that the consideration of a unilateral contract must 
 always have been executed on the part of the promisee before the promise be- 
 comes binding on the promisor ; a unilateral contract executory on both sides 
 is a contradiction in terms ; before performance by the promisee there is no 
 unilateralcontract, but only an offer by the promisor; see last note. Defend- 
 ants tender was simply a continuing offer during the period named, subject to 
 revocation at any time, but while unrevoked converted into a distinct contract 
 by each order for goods from time to time ; Thayer v. Burchard, 99 Mass. 508;, 
 «p. Eailroad Co. v. Dane, 43 N. T. 240; Eailroad Co.». Mitchell, 38 Tex. 85.] 
 176 
 
RECIPROCAL PROMISES. 161 
 
 .subject, which is by no means free from difficulty, will be examined 
 under the head of Undue Influence, Ch. XI., post. 
 
 Reciprocal promises may be and in practice constantly are the- 
 consideration for one another, and so constitute a binding con- 
 tract (a). It is said that in order to be a good consideration a 
 promise must be a promise to do something which the promisor has- 
 the means of performing; but this proposition, though affirmed by 
 an authority little, short of judicial (6), seems unwarrantably wide. 
 The true limitation, it is submitted, is that the thing promised 
 must be in itself possible, and such as the promisor is legally com- 
 petent to perform ; this last point is what *the cases cited [161 
 for the general statement really go to show, though certainly there 
 are some dicta much more largely expressed (c). In this form the 
 proposition is completely covered by the general law touching im- 
 possible and unlawful agreements, and we know of nothing that 
 requires us to lay down any wider rule as part of the distinct learn- 
 ing of Consideration. There is certainly no general rule that a 
 promise can not be sued on unless the promisor had in fact the 
 means of performing it when he made it ; and if we say that the 
 undertaking of a legal liability is not to be deemed a consideration 
 unless the liability be substantial, we are in truth setting up ire 
 another shape the often exploded supposition that the adequacy of 
 the consideration can be inquired into. 
 
 It is certain however that a promise which is to be a good con- 
 sideration for a reciprocal promise must be such as can be enforced : 
 it must therefore be not only lawful and in itself possible, but 
 reasonably definite. Thus a promise by a son to his father to leave 
 off making complaints of the father's conduct in famity affairs is- 
 no good consideration to support an accord and satisfaction, for it 
 
 (a) [Matthews' Adm'r. v. Meek, 23 O. S. 272, 292; Downey v. Hinchman, 25. 
 Ind. 453 ; Coleman v. Eyre, 45 N. Y. 38; Nott *. Johnson, 7 0. S. 270; Bank 
 v. Sabin, 48 Vt. 239 ; Funk v. Hough, 29 111. 145 ; Babcuck v. Wilson, 17 Me. 
 372; Whitehead v. Potter, 4 Ired. L. 257; Forney v. Shipp, 4 Jones L. 527; 
 Boies v. Vincent, 24 la. 387 ; Aldrich v. Lyman, 6 B. I. 98 ; Bice v. Sims, 8 
 Bich. L. 416 ; Hawes v. Woolcock, 26 Wis. 629 ; Bruce v. Smith, 44 Ind. 1.] 
 
 (b) 2 Wms. Saund. 430. 
 
 (c) Haslam v. Sherwood, 10 Bing. 540; Nerot v. Wallace, 3 T. E. 17, where 
 the dicta of Lord Kenyon, C. J., and Ashurst, J., are those meant in the text. 
 Buller and Urose, JJ., confined their judgments to the true ground of the case, 
 viz., that the agreement then in question was illegal as being against the pol- 
 icy of the bankrupt laws. 
 
 12 177 
 
162 CHAP. IV. CONSIDERATION. 
 
 is too vague to be enforced (a). And upon a conveyance of real 
 ■estate without any pecuniary consideration a covenant by the 
 grantee to build on the land granted such a dwelling-house as he 
 or his hsirs shall think proper is too vague to save the conveyance 
 from being voluntary within 27 Eliz. c. 4 (b). 
 
 For the same reason, neither the promise to do a thing nor the 
 actual doing of it will be a good consideration if it is a thing which 
 the party is already bound to do either by the general law or by a 
 162] subsisting contract with the other party (c). *It is obvious that 
 
 (a) White v. Bluett, 23 L. J. Ex. 36; this seems the ratio decidendi, though 
 so expressed only by Parke, B., who asked in the course of argument, " Is an 
 agreement by a father in consideration that his son will not bore him a binding 
 •contract ?" 
 
 (6) Kosher v. Williams, 20 Eq. 210. 
 
 (c) See Leake, 318-320; [2d. ed. 618-621]; and, besides authorities there 
 rgiven, Deacon v. Gridley, 15 C. B. 295 ; 21 L. J. C. P. 17 ; and the judgment on 
 the 7th plea in Mallalieu v. Hodgson, 16 Q. B. 689; 20 L. J. Q. B. 339; [Cono- 
 ver v. Still well, 34 N. J. L. 54; Crosby v. Wood, 6 N. T. 369; McCaleb v. 
 Price, 12 Ala. 753 ; City v. Lenze, 27 O. S. 383 ; Cobb v. Cowdry, 40 Vt. 25, 28; 
 "Ford v. Garner, 15 lnd. 298 ; Runnarnaker v. Cordray, 54 111. 303 ; Reynolds 
 v. Nugent, 25 lnd. 328. 
 
 A promise of extra pay to sailors in consideration of their agreeing to finish 
 a voyage for which they had signed articles is without consideration : Bartlett 
 v. Wyman, 14 Johns. 260; Leake on Cont., 2d ed. 621. 
 
 As is a promise to pay a witness, for attendance at court, more than the fees 
 prescribed by law : Dodge v. Stiles, 26 Conn. 463 ; Sweaney v. Hunter, 1 Miir- 
 phey, 181. 
 
 Or any promise made in consideration of the payment, in whole or part, 
 of a debt already. due: Warren v. Hodge, 121 Mass. 106; Smith v. Bartholo- 
 mew, 1 Met. 276; Smith v. Tyler, 51 lnd. 512; State v. Davenport, 12 la. 335 ; 
 Pabodie v. King, 12 Johns. 426; Pomeroy v. Slade, 16 Vt. 220 ; Barron v. Vand- 
 vert, 13 Ala. 232; Price v. Cannon, 3 Mo. 453; Pemberton v. Hoosier, 1 Kan. 
 108; Leiningu. Gould, 13 Cal. 598; Watts v. French, 19 N. J. Eq. 407 ; Jen- 
 ness v. Lane, 26 Me. 475; Parmalee v. Thompson, 45 N. Y. 58; Jenkins v. 
 Clarksun, 7 Ohio, 72; Trumbull v. Brock, 31 O. S. 649. 
 
 A promise of reward to an officer for arresting a criminal whom the duties 
 ■of his office'require him to apprehend is both without consideration and against 
 public policy : Gilmore v. Lewis, 12 Ohio, 281 ; Marking v. Needy, 8 Bush, 22; 
 Pool v. Boston, 5 Cush. 219; Day v. Insurance Co., 16 Minn. 408; Sinith v. 
 WhiWen, 10 Pa. St. 39; Kick v. Merry, 23 Mo. 72; Bent v. Wakefield, &c, 
 Bank, 4 G. P. D. 1 ; Stamper v. Temple, 6 Humph. 113; and see Davies v. 
 Burns, 5 Allen, 349 ; Callaghan d, Hallet, 1 Caines, 104. 
 
 Consenting to rescind an illegal agreement is no consideration for a promise: 
 Booker v. DePalos, 28 O. S. 251.] 
 178 
 
PROMISES TO PERFORM EXISTING DUTIES. 162 
 
 an express promise by A. to B. to do something which B. can already 
 -call on him to do can (at any rate in contemplation of law) pro- 
 duce no fresh advantage to B. or detriment to A. But the doing 
 or undertaking of any thing beyond what one is already bound to 
 do, though of the same kind and in the same transaction, is a good 
 consideration. A promise of reward to a constable for rendering 
 services beyond his ordinary duty in the discovery of an offender 
 is binding (a) : so is a promise of extra pay to a ship's crew for 
 continuing a voyage after the number of hands has been so re- 
 duced by accident as to make the voyage unsafe, so that the crew 
 are not bound to proceed under their original articles (b). Again 
 there will be consideration enough for the promise if an existing 
 right is altered or increased remedies given. Thus an agreement 
 to give a debtor time in consideration of his paying the same 
 interest that the debt already carries is inoperative (c), but an 
 agreement to give time or accept reduced interest in consideration 
 of having some new security would be good and binding (d). The 
 common proviso in mortgages for reduction of interest on punctual 
 payment — i.e., payment at the very time at which the mortgagor 
 
 (a) England v. Davidson, 11 A. & E. 856; [Davis v. Munson, 43 Vt. 676; 
 Brown v. Godfrey, 33 Vt. 120; Gregg v. Pierce, 53 Barb. 387; Cp. Hatch v. 
 Mann, 15 Wend. 44.] 
 
 (b) Hartley v. Ponsonby, 7 E. &. B. 872 ; 26 L. J. Q. B. 322. 
 
 (c) [Kellog v. Olmstead, 25 N. Y. 189 ; McCann v. Lewis, 9 Cal. 246; Abel v. 
 Alexander, 45 Ind. 523 ; Grossman v. Wohlleben, 90 111. 537 ; Hunt v. Postle- 
 waite, 28 la. 427. 
 
 But it has been held, and, it is submitted, correctly held in opposition to some 
 of the cases just cited that a promise by a debtor to pay, until a fixed date, 
 the same interest which the debt already bears is a good consideration for a 
 promise to give him time until that date; for by such agreement the debtor de- 
 prives himself of the right to pay the debt and stop the interest before that date, 
 and the creditor gets the benefit of an interest bearing investment for a fixed 
 perind instead of a period determinable at will: McCombu. Kjttredge, 14 Ohio, 
 348; Brown v. Prophit, 53 Miss. 649; Bailey v. Adams, 10 N. H. 162; Fawcett 
 v. Freshwater, 31 O. S. 637 ; Pierce v. Goldsberry, 31 Ind. 52 ; Chute v. Pattee. 
 37 Me. 102 ; Cp. supra, p. 159, infra, 165.] 
 
 Id) [Gates v. Hamilton, 12 la. 50; Kinsey v. Wallace, 36 Cal. 462, 476. 
 An agreement to give time would be good if made in consideration of the 
 payment of the same interest in advance, or of a promise to pay increased in- 
 terest: Warner v. Campbell, 26 111.282; Dickerson v. Commissioners, 6 Ind. 
 128; Wright v. Bartlett, 43 N. H. 548; Clarkson v. Creely, 35 Mo. 95; Eoyal 
 ■v. Lindsay, 15 Kan. 591; Bank v. Mallett, 34 Me. 547;' Abel v. Alexander, 45 
 Ind. 523 ; Hubbard v. Ogden, 22 Kan. 363; Preston v. Henning, 6 Bush, 556.] 
 
 179 
 
163 CHAP. IV. CONSIDERATION. 
 
 has covenanted to pay it — seems to be without any consideration r 
 and it is conceived that if not under seal such a proviso could not 
 he enforced (a). Again the rale does not apply if the promise is- 
 in the nature of a compromise, that is if a reasonable doubt exists- 
 at the time whether the thing promised be already otherwise due- 
 or not, though it should be afterwards ascertained that it was so. 
 The reason of this will be more conveniently explained, so far as it 
 needs explanation, when we speak presently of forbearance as a 
 Consideration. 
 
 In the case where the party is already bound to do the same- 
 thing, but only by contract with a third person, there is some dif- 
 ference of opinion. But there seems to be no solid reason why the^ 
 promise should not be good in itself, and therefore a good con- 
 sideration. It creates a new and distinct right, which must al- 
 163] ways be of some value in law, and may be of *appreciable- 
 ; value in fact. There are many ways in which B. may be very 
 i, much interested in A.'s performing his contract with C, but yet so 
 that the circumstances which give him an interest in fact do not- 
 give him any interest which he can assert in law. It may well be- 
 worth his while to give something for being enabled to insist in Dis- 
 own right on the thing being done (6); This opinion has been ex- 
 pressed and acted on in the Court of Exchequer (c), and seems im- 
 plied in the judgment of the majority of the Court of Common 
 Pleas in a case decided some weeks earlier (d), which affords a 
 curious modern example of a class of agreements already men- 
 tioned as having in former times given rise to much litigation and: 
 even to conflicts of jurisdiction. An uncle wrote to his nephew in 
 these terms : "I am glad to hear of your intended marriage with 
 E. N.; and as I promised to help you at starting, I am happy to 
 
 (re) This could at once be provided against, however, if so desired, by fixing 
 the times for " punctual payment," a single day earlier than those named in the- 
 mortgagor's covenant. 
 
 (b) [To say that the promise creates " a new and distinct right " in B. which 
 enables him to " insist in his own right on the thing being done," is to assume- 
 the very point in question, for unless the promise is a good consideration for a 
 counterpromise, it of course fails to create a new and distinct right in B. ; Daven- 
 port v. First Cong. Soc, 33 Wis. 387; Johnson's Adm'r. v. Seller's Adm'r., 33- 
 Ala. 26-5 ; Gordon v. Gordon, 56 ST. H. 170, 173 ; Stidham v. Sanford, 4 Jones- 
 & S. 341.] 
 
 (c) Scotson v. Pegg, 6 H. & N. 295 ; 30 L, J. Ex. 225. 
 
 (d Shad well v. Shadwell, ? C. B. N. S. 159 ; 30 L. J. C. P. 145. 
 180 
 
PROMISES TO PERFORM EXISTING DUTIES. 164 
 
 -tell you that I will pay to you one hundred and fifty pounds yearly 
 -during my life," subject to a contingency not material to be. now 
 rstated. The marriage took place, and for several years this annuity 
 was paid; after which it fell into arrear, the uncle died, and the 
 nephew sued his executors. It was pleaded amongst other things 
 that the marriage was not at the testator's request and that there 
 was no consideration for the promise. Erie, C. J., and Keating, J., 
 held (but without saying in terms that the existence of the engage- 
 ment to marry at the date of the uncle's promise could make no 
 difference) that on the whole the marriage must be taken to have 
 'been at the testator's request, and so was a sufficient consideration. 
 Byles, J., dissented, thinking that as no express request appeared, 
 •so none could be implied, for the nephew was already bound to the 
 marriage and the uncle knew it ; he stated the rule to be that a 
 promise to do what one is already bound, though only to a third 
 person, to do, can not be a consideration (a) ; and he seemed dis- 
 posed to treat it as a matter of public policy. Unless put on that 
 ground, indeed, it would amount, as was pointed out in the Ex- 
 chequer (b), to saying that a man can not *bave an interest [164 
 in the performance of a contract made with another. 
 
 But even if we do regard it as a rule of law paramount to the 
 interest of the parties — a view for which it may be said that as a 
 matter of fact an individual citizen might often find it less trouble- 
 some to pay a man for performing his legal duty than to take the 
 proper steps for making him perform it — there still appears to be 
 good reason for the distinction. To allow promises to be binding 
 if made in consideration of the promisee doing or undertaking what 
 he is already bound generally or to the promissor to do would be 
 to give direct encouragement to breaches of public and private 
 • duty (c). But where the duty is to a third person only, this reason 
 
 (rt) And so thought some of the judges in Jones v. Waite, 5 Bing. N. C. 341, 
 
 851, 356. [And see cases cited supra, 163, note (4).] But the actual decision 
 
 -there (lb. 9 CI. & if. 101) would he a clear authority the other way, had it not 
 
 been assumed at the time that an agreement to execute a separation deed could 
 
 - not he directly enforced. 
 
 (6) Per Wilde, B., Scotson v. Pegg, supra. 
 
 (c) [There are cases which hold that where one party to a contract refuses 
 -to perform his part, a promise by the other party to pay something beyond the 
 -consideration agreed upon if he will go on and perform is binding: Monroe ■». 
 Perkins, 9 Pick, 298; Cooke v. Murphy, 70 111. 96; Holmes v. Doane, 9 Cush. 
 _135; Lattimore v. Harsen, 14 Johns. 330; Moore v. Detroit Locomotive Works, 
 
 181 
 
165 CHAP. IV. CONSIDERATION. 
 
 does not apply ; the encouragement to unlawful conduct, if any, isr- 
 too remote and precarious to count for any thing. 
 
 The doctrine of Consideration, especially this last part of it, has- 
 been extended with not very happy results beyond its proper- 
 scope, which is to govern the. formation of contracts, and has been 
 made to regulate and restrain the discharge of contracts. For ex- 
 ample, where there is a contract of hiring with a stipulation 
 that the wages due shall be forfeited in the event of the servant 
 being drunk, a promise not under seal to pay the wages notwith- 
 standing a forfeiture is not binding without a new consideration (a).. 
 But it is thought unnecessary to enter here on this matter, which 
 the reader will find set forth in the notes to Cumber v. Wane (6). 
 It is enough to say that English common law stands committed to 
 the absurd paradox that a debt of 1001. may be perfectly well dis- 
 charged by the creditor's acceptance of a peppercorn at the same 
 time and place at which the 1001. are payable or of ten shillings at 
 an earlier day or at another place, but that nothing less than a re-, 
 lease under seal wiil make his acceptance of 991. in money at the 
 same time and place a good discharge (c) : although modern de- 
 cisions have confined this absurdity within the narrowest possible 
 limits (6). 
 
 J.65] *If it is agreed between creditor and debtor that the duty 
 shall be performed in some particular way different from that orig- 
 inally intended, this may well be binding : for the creditors, under- 
 taking to do something different though only in detail from what 
 he at first undertook to do, or even relinquishing an option of doing 
 it in more ways than one, would be consideration enough, and the 
 Court could not go into the question whether it gave any actual ad- 
 vantage to the creditor. But if the new agreement amounts to 
 
 14 Mich. 266; Coyner v. Lynde, 10 Ind. 282; Lawrence v. Davey, 28 Vt. 264;, 
 Bishop i>. Busse, 69 111. 403 ; Stewart v. Keteltas, 36 N. Y. 388, 392. 
 
 But they seem clearly open to the objection that they hold the doing what 
 one is legally bound to do, a consideration for a promise; supra, p. 161; Ayres 
 v. Railroad Co., 52 la. 478 ; Festerman v* Parker, 10 Ired. L. 474.] 
 
 (a) Monkman v. Shepherdson, 11 A. & B. 411. 
 
 (b) 1 Sm. L. C. 341, sqq; [7 Am. ed. 595, sqq.] 
 
 (c) Pinnel's ca. 5 Co. Kep. 117. The Indian Contract Act (s.-63, illust. b) is 
 accordingly careful to express the contrary. The rule in Pinnel's case, it may 
 be noted, though paradoxical, is not anomalous. It is the strictly logical result - 
 of carrying out a general principle beyond the bounds within which it is reas- 
 onably applicable. 
 
 182 
 
FORBEARANCE AS A CONSIDERATION. ](i(> 
 
 • 
 
 saying that the debtor shall at his own option perform the duty 
 as .at first agreed upon or in some other way, it can not ho bind- 
 ing without a new consideration : as where an entire sum. is due, 
 and there is an agreement to accept payment by installments, this 
 would be good, it seems, if the debtor undertook not to tender the- 
 whole sum (a) : but in the absence of any thing to show such an 
 undertaking, the agreement is a mere voluntary indulgence, and 
 the creditor remains no less at liberty to demand the whole sum 
 than the debtor is to pay it (6), 
 
 The loss or abandonment of any right, or the forbearance to ex- 
 ercise it for a definite or ascertainable time, is for obvious reasons- 
 as good a consideration as actually doing something. In Mather v. 
 Lord Maidstone (c) the loss of collateral rights by thepromissee sup- 
 ported a promise notwithstanding that the main part of the con- 
 sideration failed. The action was on a bill of exchange. This bill 
 was given and indorsed to the plaintiff as in renewal of another 
 bill purporting to be accepted by the defendant and indorsed to- 
 the plaintiff. The plaintiff gave up this first bill to the defendant;, 
 thirty days afterwards it was discovered that it was not really 
 signed by the defendant: yet it was held that he was liable on the 
 second bill, for the plaintiff had lost his remedy against the other 
 parties to the first bill during the time for which he had parted 
 with the jiossession of it, and that was consideration enough. 
 
 As to forbearance, the commonest case of this kind of considera- 
 tion is forbearing to sue. The forbearance or promise of it must 
 be, as we said, for- a definite or ascertainable time in border [166 
 to be a good consideration. Forbearance for a reasonable time is 
 enough, for it can be ascertained as a question of fact what is a rea- 
 sonable time in any given case; and an undertaking in terms 
 which are in themselves vague, such as "forbearing to press for 
 immediate payment" may be construed by help of the circum- 
 stances and context as meuningforbearancefor a reasonable time (<f). 
 
 (a) [Cp. supra, p. 162, note (c).] 
 
 (b) McManus v. Bark, L. R. 5 Ex. 65. 
 
 (c) 18 C. B. 273 ; 25 L. J. 0. P. 300. 
 
 (d) Oldershaw v. King (Ex. Ch.) 2 H. & N.-517; 27 L. J. Ex. 120 ; and see 
 1 Wins. Saund. 225. [See Hake v. Hotehkiss, 23 Vt. 231 ; Sid well v. Evans. 1 
 P. & W. 383 ; King v. Upton, 4 Me. 387 ; Lonsdale v. Brown, 4 "Wash. C. 0. 148 ; 
 Elting v. Vauderlyn, 4 Johns. 237 ; Calkins v. Chandler, 36 Mich. 320; Glass- 
 cock v. Glasscock,, 66 Mo. 627.] The case of Alliance Bank v. Broom, 2, Dr. & 
 Sm. 289, which at first sight looks like a decision that a promise to forbear su- 
 
 183 
 
167 < CHAP. IV. CONSIDERATION. 
 
 That which is forborne must also be the exercise or enforce^ 
 ment of some legal or equitable right which is at least reasonably 
 believed to exist (cz). This is simply the converse of a rule 
 already given. As a promise by A. to B. is naught if it is only a 
 promise to do something A. is already bound, either absolutely or 
 as against B., to do, so it is equally worthless if it is a promise not 
 to do something which B. can already, as a matter either of public 
 or of private right, forbid A. to ap. Such is the theoretical ex- 
 pression of the rule, if we assume the existing rights of the parties 
 to be known: but as in practice they often are not known, but de- 
 pend on questions of law or of fact, or both, which could not be 
 settled without considerable trouble common sense and convenience 
 require that compromises of doubtful rights should be recognized 
 as binding, and they constantly are so recognized (6). Unless we 
 ■chose to treat these as an exception, which would be absurd, the 
 ■statement must be modified thus — A promise by A. to B. not to do 
 something or to prosecute some claim is not a good consideration if 
 A. knows that the thing is one which B. can already forbid him to 
 do, or that the claim has no foundation. One might be tempted to 
 add, or if by reasonable diligence he might know : but it is more 
 probable that in this as in certain other analogous questions the ex- 
 istence of means of knowledge is material only as evidence of actual 
 knowledge. " Every day a compromise is effected on the ground that 
 the party making it [a doubtful claim] has a chance of succeeding 
 in it, and if he bona fide believes he has a fair chance of success, 
 167] he has a reasonable ground, for suing and *his forbearance to 
 
 ing for no time in particular is a good consideration, is perhaps to be supported 
 on this ground. [In the case of Alliance Bank v. Broom there was not "a 
 promise to forbear suing for no time in particular," but there was no promise at 
 all on the part of the creditor ; certainly there was no express promise, and the 
 facts do not justify the inference of a tacit promise. It is submitted that the case 
 ■can not be supported on any ground; Shupe v. Galbreath, 32 Pa. St. 10 ; Oary v. 
 White, 52 N. Y. 138; Mecorney „. Stanley, 8 Cush. 85. Cp. Holzworth v. 
 Koch, 26 O. S. 33; Boyd v. Freize, 5 Gray, 553; Breed v. Hillhouse, 7 Uonn. 
 623. 
 
 A promise to forbear generally, without naming any particular time, has 
 been construed to mean perpetual forbearance. Clark v. Kussell, 3 Watts, 213; 
 Haymaker v. Eberly, 2 Binn. 506.] 
 
 (a) Leake, 327-30 ; [2d ed. 625, sqq.] 
 
 (b) [Bank v. Geary, 5 Pet. 98; Grasselli v. Lowden, 11 O. S. 349; Adams v. 
 Morton, 37 la. 255 ; Fleming v. Ramsey, 46 Pa. St. 252 ; Fisher v. May, 2 Bibb, 
 44S; Logan v. Matthews, 6 Pa. St. 417; Taylor v. Patrick, 1 Bibb, 168; Crans 
 
 184 
 
CONTRACTS UNDER SEAL IN EQIT.TY. 1C7 
 
 «ue will constitute^ good consideration. When such a person for- 
 bears to sue ho gives up what he believes to be a right of action 
 and the other party gets an advantage . . . . It would be an- 
 other matter if a person made a claim which he knew to be un- 
 founded and by a compromise derived an advantage under it: in 
 that case his conduct would be fraudulent" (a). 
 
 This rule applies in the case (which apart from authority might 
 possibly seem doubtful) where the claim given up is on a disputed 
 promise of marriage (b). The real consideration and motive of a 
 ■compromise, as well in our law as in the civil law and systems de- 
 rived from it, is not the sacrifice of a right but the abandonment 
 •of a claim (c). A partial compromise in which the undertaking is 
 not simply to stay or not to commence legal proceedings, but to 
 ■conduct them in some particular manner or limit them to some 
 particular object, may well be good : but here again the forbearance 
 must relate to something within the proper scope of such proceed- 
 ings. A promise to conduct proceedings in bankruptcy so as to 
 injure the debtor's credit as little us possible is no consideration, 
 
 ■v. Hunter, 28 N. T. 389; Russell v. Cook, 3 Hill, 504; Blake v. Peek, 11 Vt. 
 483; Holcomb v. Stimpson, 8 Vt. 141; Miller v. Hawker, 66 111. 185; Clark v. 
 Gamwell, 125 Mass. 428. See infra, p. 396. 
 
 " The voluntary performance of a legal obligation, as to the validity of which 
 there is no dispute, is not a sufficient consideration for a contract; but if the 
 
 ■ obligation be doubtful, the waiver of the right to contest it is a sufficient consid- 
 eration." Insurance Co. v. Watson, 59 N. Y. 390.] 
 
 (a) Oallisher v. Bischoffsheim, L. li. 5 Q. B. 449, 452, per Cockburn, C. J.: 
 
 . [Pitkin v. Noyes, 48 N. H. 294 ; McKinley v. Watkins, 13 111. 140. In Callislier 
 v. Bischoffsheim, which was decided on demurrer to the plea, the court assumod 
 that plaintiff bona fide believed he had a valid claim, there being no averment 
 to that effect in the pleadings. 
 
 On the other hand, it has been often decided that forbearance to sue on an 
 
 -unfounded claim is no consideration; Palfrey v. Bailroad Co., 4 Allen, 55; 
 Tucker v. Rank, 43 la. 80; Prater v. Miller, 25 Ala. 320; Jarvis v. Sutton, 3 
 Ind. 289; Kidder v. Blake, 45 N. H. 530; Stewart v. Bradford, 26 Ala. 410; 
 
 ..Sullivan v. Collins, 18 la. 228 ; Long v. Towl, 42 Mo. 545 ; Poster v. Metts, 55 
 Miss. 77 ; Mulholland v. Bartlett, 74 111. 58 ; Graham v. Johnson, 8 Eq. 36 ; 
 Edwards v. Baugh, 11 M. & W.641; Cline v. Templeton, Ct. of App. Ky., 11 
 
 C. L. J. 314; Leake, 2d ed. 625 sqq.] 
 
 (b) Keenan v. Handley, 2 D. J. S. 283. 
 
 (c) Trigge v. Lavallee, 15 Moo. P. C. 271, 292 (a . case from Lower Canada, 
 ^then under old Pr. law) ; Wilby v. Elgee, L. P.. 10 C. P. 497. 
 
 185 
 
168 CHAP. IV. CONSIDERATION. 
 
 for it is in truth merely a promise not to abuse the process of the* 
 Court (a). 
 
 The main end and use of the doctrine of Consideration in our- 
 modern law, whatever may have been its precise origin, is to fur- 
 nish us with a reasonable and comprehensive set of rules which' can 
 bo applied to all informal contracts without distinction of thuir- 
 eharacter or subject-matter. , Formal contracts remain, strictly 
 speaking, outside the scope of these rules, which were not made for 
 them, and for whose help they had no need. But it was impossible 
 that so general and so useful a legal conception as that of Con- 
 sideration should not make its way into the treatment of formal, 
 contracts, though with a different aspect. The ancient validity of 
 formal contracts could not be amplified, but it might bo restrained :- 
 and in fact both the case-law and the, legislation of modern times 
 show a marked tendency to cut short if not to abolish their dis- 
 tinctive privileges, and to extend to them as much as possible the 
 1CS] free and rational treatment of legal ^questions which has 
 bo;n developed in modern times by the full l'ecognition of informal 
 transactions. 
 
 There is some reason, as we have seen, to believe that the doc- 
 trine of Consideration owes its origin to the Court of Chancery: 
 and we must still look to courts of equity to see it in its fullest ap- 
 plication. A merely gratuitous contract under seal may be enforced 
 at law (b) (with some peculiar exceptions) unless it can be shown 
 that behind the apparently gratuitous obligation there is in fact an 
 unlawful or immoral consideration : and with its strictly legal ef- 
 fect, in the absence of any special ground of invalidity, the rules 
 of equity do not profess to interfere. But courts of equity refuse 
 to extend their special protection and their special remedies to 
 agreements, however solemn and formal, made without consider- 
 ation. 
 
 A voluntary covenant, though under seal, " in equity, where at 
 least the covenantor is living, or where specific performance of such 
 a covenant is sought, . stands scarcely, or not at all, on a 
 
 better footing than if it were contained in an instrument un- 
 seated" (e). 
 
 (n) Braeewell v. Williams, L. B. 2 C. P. 196. 
 ■ (b) [Aller v. Aller, 40 N. J. L. 446; Burkholder's Ex'r. v. Plank, 69 Pa,. 
 St. 225.^ 
 
 (c) Per Knight Bruce, L. J. Kekewich o. Manning, 1 D. M. G. 176, 188;;. 
 186 
 
IMPERFECT GIFTS. 169" 
 
 Even the first part of our statement must be taken with a quali- 
 fication of same importance to which allusion is made in the passage 
 just cited. We shall see under the head of Undue Influence that 
 a system of presumptions has been established which makes it 
 difficult in many cases for persons claiming under a voluntary deed 
 to uphold its validity if the donor, or even his representatives,, 
 choose within any reasonable time afterwards to dispute it. The 
 rule that a court of equity will not grant specific performance of a 
 gratuitous contract is so well settled that it is needless to cite further 
 authorities for it : and it is not to be overlooked that whereas the 
 other rules that limit the application of this peculiar remedy are 
 of a more or less discretionary kind, and founded on motives of 
 convenience and the practical requirements of procedure rather 
 than on legal principle, this is an. absolute and unqualified rule 
 which must be considered as part of the substantive law. 
 
 *lt is the practice of equity, however, at all events when [169 
 the want of consideration is actively put forward as an objection 
 (and the practice must be the same, it is conceived, when the ob- 
 jection is made by way of defense in an action for specific per- 
 formance) to admit evidence of an agreement under seal being in 
 fact founded on good consideration, where the deed expresses a 
 nominal consideration (a) or no consideration at all (6), though 
 (save in a case of fraud or illegality) a consideration actually in- 
 consistent with that expressed in the deed could propably not be 
 shown (a). 
 
 Closely connected with this in principle is the rule of equity that 
 although no consideration is required for the validity of a complete 
 declaration of trust, or a complete transfer of any legal or equita- 
 ble interest in property, yet an incomplete voluntary gift, creates 
 no right which can be enforced (c). Certain recent decisions have 
 indeed shown a tendency to infringe on this rule by construing the 
 
 [Short v. Price, 17 Tex. 397 ; Hays v. Kershaw, 1 Sandf. Ch. 258, 261 ; Black 
 v. Cord, 2H.&G.H0; Buford's Heirs v. McKee, 1 Dana, 107 ; Bayler v. Com- 
 monwealth, 40 Pa. St. 37.] 
 
 (a) Leifchild's ca., 1 Eq. 231. 
 
 (b) Llanelly Ry. & Dock Co. v. L. & N. W. Ry. Co., 8 Ch. 942. 
 
 (c) [Dorsey v. Packwood, 12 Jdow. 126, 137; Stone v. Hackett, 12 Gray, 227;. 
 Estate of Webb, 49 Cal. 541 ; Crooks v. Crooks, 34 O. S. 6L0, 615; Wadhatns 
 v. Gay, 73 111. 415; Carhart's Appeal, 78 Pa. St. 100, 119; Perry on' Trusts,. 
 I 96 sqq.] 
 
 187 
 
169 CHAP. IV. CONSIDERATION. 
 
 circumstances of an incomplete act of bounty into a declaration of 
 trust, notwithstanding- that the real intention of the donor was evi- 
 dently not to make himself a trustee, but to divest himself of all 
 his interest (a). But these have been disapproved in still later 
 judgments which seem entitled to more weight (p). 
 
 (a) Richardson v. Richardson, 3 Eq. 686 ; Morgan v. Malleson, 10 Eq. 475. . 
 (i) "Warriner v. Rogers, 16 Bq. 340 ; Richards v. Delbridge, 18 Eq. 11 ; Moora 
 v. Moore, lb. 474; Heartley v. Nicholson, 19 Bq. 233. 
 188 
 
ETTLES AS TO LEGAL EFFECTS OF CONTRACT. 170, 171"-- 
 
 *CHAPTER V. [170 
 
 PERSONS AFFECTED BY CONTRACT. 
 
 Part I. — G-eneral Rules as to Parties. 
 
 The original and simplest type of contract is an agreement cre- 
 ating an obligation between certain persons. The persons are as- 
 certained by their description as individuals, and not by their satis- 
 fying any general class description : or, more shortly, they are 
 denoted by proper names and not by class-names (a). And the 
 persons who become parties in the obligation created by the agree- 
 ment are the persons who actually conclude the agreement in the 
 first instance, and those only. The object of this chapter will be 
 to point out the extent to which modern developments of the law 
 of contract have altered this primary type either by modifications 
 co-extensive with the whole range of contract or by special classes 
 of exceptions. 
 
 The fundamental notion from which we must take our departure 
 is one that our own system of law has in common with the Eoman 
 system and the modern law of other civilized countries derived 
 therefrom. There is some evidence that we ourselves got this (to- 
 gether with other principles of the law of contract) from Eoman 
 sources. However that may be, we find it as firmly established in 
 our own system as in the Eoman from a very early date, though it 
 happens not to be definitely expressed in a general form in any of 
 our authorities. A wide statement of the principle may be given 
 in the shape of a maxim thus : 
 
 *The legal effects of a contract are confined to the con- [171" 
 tracting parties. 
 
 This, like most if not all legal maxims, is a generalization which . 
 can be useful only as a compendious symbol of the particulars from 
 which it is generalized, and can not be understood except by refer- 
 ence to those particulars. The first step towards the necessary de- 
 velopment may be given in a series of more definite but still very 
 
 (a) Savigny, Obi. § 53 (2. 16) ; cp. on the subject of this chapter generally r . 
 
 lb., 3? 53-70, pp. 17-186. 
 
 189 
 
172 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 general rules, which we shall now endeavor to state, embodying 
 at the same time those qualifications, whether of recent introduc- 
 tion or not, which admit of being stated in an equally general 
 form. 
 
 We give some preliminary definition of terms which it will be 
 convenient to use in extended or special senses. A contract creates 
 an obligation between the contracting parties, consisting of duties 
 on the one part and the right to demand the performance of them 
 on the other. 
 
 Any party to a contract, so far as he becomes entitled to have 
 any thing performed under the contract, is called the creditor. So 
 far as he becomes bound to perform any thing under the contract 
 he is called the debtor. 
 
 Eepresentation, representatives, mean respectively succession 
 and the person or persons succeeding to the general rights and lia- 
 bilities of any person in respect of contracts whether by reason of 
 the death of such person or otherwise. A third person means any 
 person other than one of the parties to the contract or his repre- 
 sentatives (a). 
 
 Mules. 1. The original parties to a contract must be persons as- 
 certained at the time when the contract is made. 
 
 2. The creditor can demand performance from the debtor or his 
 representatives. He can not demand nor can the debtor require 
 him to accept performance from any third person ; but the debtor 
 or his representatives may perform the duty by an agent. 
 172] *3. No thii-d person can become entitled by the contract 
 itself to demand the performance of any duty under the contract. 
 
 Exception. Provisions contained in a settlement made upon and 
 in consideration of marriage for the benefit of children to be born 
 of such marriage, or, in the case of a woman marrying again, for 
 the benefit of her children by any former marriage, may be en- 
 forced by the persons entitled to the benefit thereof (b). 
 
 4. Persons other than the creditor may become entitled by rep- 
 resentation or assignment to stand in the creditor's place and to 
 exercise his rights under the contract. 
 
 Explanation 1. Title by assignment is not complete as against 
 
 (a) Contracts for the sale, of land are enforceable in equity by and against 
 the heirs or devisees of the parties. But here the obligation is treated as at- 
 tached to the particular property. 
 
 (6) See p. 194, below 
 190 
 
PARTIES MUST BE CERTAIN. 173 
 
 Jthe^debtor without notice to the debtor, and a debtor who performs 
 his contract to the original creditor without notice of any assign- 
 ment by the creditor is thereby discharged. 
 
 Explanation 2. The debtor is entitled as against the representa- 
 tives, and unless a contrary intention appears 1 by the original con- 
 tract, as against the assignees of the creditor, to the benefit of any 
 defense which he might have had against the creditor himself. 
 
 (The following exceptions are given in order to complete the 
 general statement. The further discussion of them, however, 
 would not be relevant to the subject of this chapter. They are 
 connected in principle with the cases of a contract for personal 
 services or the exercise of personal skill becoming impossible of 
 performance by inevitable accident, of which we speak in Ch. VII. 
 below.) 
 
 Exception 1. If it appears to have been the intention of the par- 
 ties that the debtor should perform any duty in person, he can not 
 perform it by an agent, nor can performance of it be required from 
 his representatives. Such an intention is presumed in the case of 
 any duty which involves personal confidence between the parties, 
 Or the exercise of the debtor's personal skill. 
 
 Exception 2. If it appears to have been the intention of the 
 parties that only the creditor in person should be entitled to have 
 any duty performed, no one can become entitled by representa- 
 tion *or assignment to demand the performance of it, nor [173 
 can such performance be required from the debtor's representatives. 
 
 Such an intention is presumed if the nature of the transaction 
 involves personal confidence between the parties, or is otherwise 
 such that " personal considerations " are of the foundation of the 
 contract (a). (Cp. Indian Contract Act 1872, ss. 37, 40.) 
 
 Exception 3. The representatives of a deceased person can not 
 sue for a breach of contract in a case where the breach of contract 
 was in itself a merely personal injury, Unless special' damage to the 
 estate which they represent has resulted from such breach of con- 
 tract. But where such damage has resulted the representatives 
 
 (a) See Stevens v. Benning, 1 K. & J. 168; Farrow v. Wilson, L. E. 4 O. P. 
 744, 746; Eobinson .». Davison, L. E. 6 Ex. 269; 2 Sra. L. C. 38 [7th Am. ed. 
 43 ;, infra, pp. 367-368, 411-412.] If in any Of these eases the transaction is 
 continued by mutual consent, it is a new contract: e.g. if a servant continues 
 his service with a deceased master's family, or if a painter's executor, being also' 
 a, painter, were to complete an unfinished portrait on the original terms at the 
 sitter's request. 
 
 191 
 
174 CHAP. V. PERSONS. AFFECTED BY CONTRACT. 
 
 may recover compensation for, it, notwithstanding that the person- 
 -whose estate they, represent might in his lifetime have brought an 
 action of tort for the personal injury resulting from the same- 
 act (a). 
 
 These propositions are subject, to several special qualifications- 
 and exceptions. Most of the exceptions are of modern origin, and 
 we shall see that since their establishment many attempts have- 
 been made to extend them. Such attempts have in some depart- 
 ments been successful, while, in others exceptions which for some 
 time were admitted, have been more recently disallowed. 
 
 We shall now go through the rules thus stated in order, pointing- 
 out under each the limits within which exceptions are admitted in 
 the present state of the law. The decisions which limit the ex- 
 ceptions are for the most part the chief authorities to show the ex- 
 istence of the rules, which are of so general a kind as to be rather 
 assumed as the groundwork of decisions than expressly affirmed. 
 
 Part 2. — Contracts with uncertain persons. 
 
 Our first rule is that the original parties to a contract must ber 
 persons ascertained at the time when the contract is made. It 
 174-] *may also be expressed shortly but less accurately thus : a 
 contract can not be made with an uncertain- person. We need not 
 stop to produce authorities for ihe general proposition, which will 
 be sufficiently illustrated as we go on. Nor do we consider here- 
 the cases in which the parties to a contract are originally certain 
 persons, but are liable to be changed on one or both sides in ex- 
 ceptional ways applicable to special kinds of contracts. These- 
 will be dealt with under a later head. 
 
 It is obvious that there can not be a contract without at least- 
 one ascertained party to make it in the first instance. 
 
 The question now before us is, therefore, reduced to" this : la 
 what cases, if any, can a contracting party bind himself by a float- 
 ing obligation (as we may call it) to a person unascertained ? The 
 general rule is that " A party can not have an agreement with the- 
 whole world ; he must have some person with whom the contract 
 is made" (b). 
 
 (a) See 1 Wms. Exors. 752-3, 6th ed. 4 798, 7th ed., and Bradshaw v. Lanca- 
 shire & Yorkshire Ky. Co., L. E. 10 0. P. 189 (since questioned in Leggottiv- 
 G. N. Ky. Co., 1 Q. B. D. 599). 
 
 (6) Squire v. Whitton, 1 H. L. C. 333, 358. 
 192 
 
CONTRACTS BY ADVERTISEMENTS. 1 7i> 
 
 Yet such a floating obligation may be thought to exist in Eng- 
 lish law in the cases of promises or undertakings addressed to the- 
 public at large by advertisements or the like, and of sales by auc- 
 tion. The latter class of cases, so far as there is any ground for 
 considering it to involve an exception from the ordinary law, is 
 really a species of the former. Let us now see whether the ex- 
 ception is in any case more than apparent. 
 
 Nothing is more common than an advertisement offering a re- 
 ward to whoever shall give certain information or find and restore 
 certain lost property: and it probably never occurs to any one 
 who is not a lawyer to suspect the difficulties — and those not of a 
 merely technical kind — that arise from the consideration in a legal 
 point of view of a matter apparently so simple. It was held a 
 good while ago that when a reward was thus offered " there was a 
 contract with any person who performed the condition mentioned 
 in the advertisement" (a), and that such person *could sue [175' 
 for the reward : and the general validity of such a contract has not 
 been disputed in several modern cases of this sort which were ar- 
 gued and decided on other collateral grounds. It will be con- 
 venient to enumerate these cases before we enter on any discussion, 
 of the principle (6). 
 
 Williams v. Carwardine, 4 B. & Ad. 621. Reward offered by the de- 
 fendant for information which should lead to discovery of a murder ., In-, 
 
 (a) Per Parke, J. Williams v. Carwardine, 4 B. & Ad. 621. There is on& 
 older case contra, Bolle Ab. 1. 6, M. pi. 1, referred to in the reporter's note, 1 
 C. B. 440, and in argument in Denton v. G. N. E. Co., 5 E. & B. 864. But this 
 can not be now law. S. C. Noy, 11, where the reason is given that " it was not 
 averred nor declared to whom the promise was made." 
 
 (4) [Such cases have been very numerous in this country. See Shuey v. TJ. 
 S., 92 U. S. 73 ; Gilmore v. Lewis, 12 Ohio, 281 ; Symmes v. Frazier, 6 Mass. 344 ; 
 "Wentworth v. Day, 3 Met. 352 ; Loring v. Boston, 7 Met. 409 ; Crawshaw v. 
 Roxbury, 7 Gray, 374; Jenkins v. Kebren, 12 Gray, 330; Besse v. Dyer, 9 Al- 
 len, 151; KincaidD. Eaton, 98 Mass. 139; Harson v. Pike, 16 Ind. 140; Daw- 
 kins v. Sappington, 26 Ind. 199; Hayden v. Songer, 56 Ind. 42; Pilie o. New- 
 Orleans, 19 La. Ann. 274; Salbadore v. Insurance Co., 22 La. Ann. 338; Golds- 
 borough v. Cradie, 28 Md. 477; Furman v . Parke, 1 Zabr. 310; Bank v. Bangs, 
 2 Edw. Ch. 95; Jones v. Bank, 8 N". T. 228; Pitch v. Snedaker, 38 N. Y. 248^ 
 Rowland v. Lounds, 51 N. Y. 604; Cummings v. Gann, 52 Pa. St. 484; Clantoa 
 -B. Young, 11 Rich. L. 546; Stampers. Temple, 6 Humph. 113; Bank v. Hart, 
 55 111. 62; Janyrm v. Exeter, 48 N". H. 83; Marvin v. Treat, 37 Conn. 96; 
 Matter of Kelly, 39 Conn. 159 ; Russell v. Stewart, 44 Vt. 170; Eagle v. Smith,. 
 4 Houst. 293; Ryer v. Stockwell, 14 Cul. 134; Lee v. Flemingsburg, 7 Dana, 
 28 ; Morrell v. Quarles, 35 Ala. 544.] 
 
 193 
 
176 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 formation given by plaintiff, but not with a view to' the reward.. Held 
 that the motive was immaterial, and plaintiff could recover. 
 
 Lancaster v. Walsh, 4 M. & W. 16; Smith v. Moore, 1 C. B. 433; 
 Thatcher v. England, 3 C. B 254; 15 L. J. C. P. 241; Tarner v. Walker, 
 L. R. 1 Q. B. 641 ; 2 Q. B. 301. All these were cases in which rewards 
 were offered for information which should lead to the discovery of an of- 
 fender, the restoration of property; or both : and the only question in 
 each case was whether the party claiming the reward had really per- 
 formed the condition proposed by the advertisement. So in McKune v. 
 Joynson, 5 C. B. N. S. 218; 28 L. J. C. P. 133, the defendant, a master 
 mariner, had signed a document called an advance note, offering " to pay 
 to any person who shall advance 61. to B. H. on this agreement the sum 
 of 61." ten days after his ship sailed from Liverpool, provided R. II. should 
 sail in it: and the only question was whether an advance partly in cash 
 and partly in goods satisfied the condition. 
 
 England v. Davidson, 11 A. & E. 856. Reward offered for discovery of 
 an offender, and claimed by a constable. It was objected that it was al- 
 ready the constable's duty to do his best to discover the offender, and 
 that a promise to reward him for so doing was without considei'ation and 
 against public policy ; but, held that there might be services he was not 
 bound to render, and a contract should not be deemed against the policy 
 of the law without clear grounds {a) 
 
 No remark was made on the principle till an unsuccessful at- 
 tempt at a new application of jt was made in Gerhard v. Bates (b), 
 where Lord Campbell said: "Those cases, though not now to be 
 questioned, are somewhat anomalous." 
 
 There the defendant was one of the promoters and a managing 
 director of a mining company. The plaintiff sued him as on a 
 guaranty of a minimum annual dividend of 33 per cent, to the 
 bearers of a certain class of shares of which the plaintiff had 
 bought a largo number. This guaranty was contained in a pro- 
 spectus issued by the directors. , There was also a count in tort 
 176] *in which the same statement was pleaded as a false and 
 fraudulent representation- The Court held that the first count 
 showed no contract between the plaintiff and the defendant. The 
 promise was alleged to be to "the bearers of the said 12,000 shares," 
 and it was further averred that the plaintiff confiding in that prom- 
 ise " became and was the purchaser and bearer of 2,500 of the said 
 12,000 shares." ' But it did not appear that the shares were trans- 
 ferable, or that there was any consideration for the alleged prom- 
 
 (a) [See supra, p. 161, ad fin., n. (c), and p. 162.] 
 < (6) 2 E. & B. 476 ; 22 L. J. Q. B. 364. 
 194 
 
ADVERTISEMENTS : DOCTRINE EXTENDED TO TIME-TABLES. 177 
 
 ise. The count in tort, however, was held good, the wrong being 
 irrespective of contract, and a sufficient connection being shown 
 between the wrong and the plaintiff's loss. 
 
 Another unsuccessful experiment was made in Spencer v. Hard- 
 ing (a). The defendant had issued a circular offering a stock of 
 goods for sale by tender, but neither expressing nor disclaiming 
 any undertaking to sell to the highest bidder : held that such an 
 undertaking could not be implied. The question was as to the true 
 meaning of the circular, and that was held to be not an offer, but a 
 mere invitation of offers. It was admitted that an express under- 
 taking would have been binding, and Willes, J., gave the explana- 
 tion which will be immediately cited. 
 
 There are two possible views of these general promises. One is 
 that the advertisement or undertaking is a mere proposal ; that the 
 first person who performs the condition thereby accepts the pro- 
 posal (6), and then, but not till then, there is a complete contract, 
 which being made between ascertained parties is not- really anoma- 
 lous at all. This opinion is distinctly adopted by Mr. Leake in his 
 work on Contracts (p. 13) [2d ed. p. 24], and also in the following 
 dictum of Willes, J., in Spencer v. Harding (c) : — 
 
 " In those cases [of rewards offered for the discovery of an offender] 
 there never was any doubt that the advertisement amounted to a promise 
 to pay the money to the person who first gave information. The diffi- 
 culty suggested was that it was a contract with all the world. But that, 
 of course, was soon overruled. It was an offer to become liable to any 
 person who before the offer should be retracted should happen, to be the per- 
 son to fulfill the contract of which the advertisement was an offer or tender." 
 
 *The right of action is also maintained on precisely the same [177 
 ground (and, one may presume, quite independently of English 
 authorities) by Vangerow (d). The other view is that immediately 
 -on the publication of the advertisement there is an anomalous con- 
 tract with the uncertain person who shall fulfill the condition. If 
 this be correct the results would be of a surprising and not very 
 reasonable kind ; for a retractation, instead of being the revocation 
 ■of a mere proposal, would be nothing else than an absolute refusal 
 -to perform an existing contract, and notice of the retractation, to 
 
 (a) L. K. 5 C. P. 561. 
 
 (b) The Indian Contract Act is silent as to this pecular class of contracts, 
 but says generally that " Performance of the conditions of a proposal .... 
 is an acceptance of the proposal " (s. 8). ' 
 
 tc) L. R. 5 C. P. 561, 563. (d) Pand., § 603. 
 
 w 195 
 
178 CHAP. V. PERSONS AFFECTED BT CONTRACT. 
 
 the person who performed the condition would be immaterial ; nor- 
 would even the death of the promisor before the performance of 
 the condition make any difference : unless indeed a second anomaly 
 were introduced to correct the first. We are not aware that any 
 English judge or writer has definitely pi*oposed this view. How- 
 ever it is the only one that occurred to Savigny, who accordingly 
 considered that on the general principles of the civil law there- 
 could be no right of action at all for a reward offered by public an- 
 nouncement (a). It is to a certain extent countenanced by the- 
 deeision in Williams v. Carwardine (p. 175 supra) that it does not 
 matter whether the person who performs the condition does it with 
 a view to the reward or not (6), and by later cases in which the- 
 application of the doctrine has been somewhat extended. These 
 cases must now be examined. 
 
 In Denton v. G. N. Eailway Co. (c) it was held that, the defend- 
 ant company was liable as on a contract with the plaintiff that a 
 train should run from Peterborough to Hull at or about 7.20 p. m. 
 which was advertised in the company's current time-tables as so 
 running. The facts were shortly these : The plaintiff had come 
 from London to Peterborough, had done his business there, and 
 wanted to go on to Hull the same night. He had made his arrange- 
 ments on the faith of the time-tables, and presented himself in due 
 time at the Peterborough station, applied for a ticket to Hull by 
 the advertised train, and offered to pay the proper fare. The de- 
 178] fendant company's clerk refused to issue *such a ticket, for 
 the reason that the 7.20 train no longer went to Hull. The fact 
 was that beyond Milford junction the line to Hull belonged to the 
 North Eastern Ry. Co., who formerly ran a train corresponding 
 with the Gr. E". E. Co.'s train, and for which the G. E". B. Co. issued 
 through tickets by arrangement between the two companies. This 
 corresponding train had now been taken off by the N. E. E. Co.,. 
 but the G. ~N. E. time-table had not been altered. The plaintiff 
 wus unable to go farther than Milford Junction that night, and so 
 missed an appointment at Hull and sustained damage. The cause 
 
 (a) Sav. Obi. 2. 90. As to practical results, he is content to observe that the- 
 reward will in most cases be paid anyhow, as being due in honor if not in law. 
 It seems, however, that he was alone in his opinion: Vangerow, Pand., \ 603- 
 (3. 255). 
 
 (b) [dee infra, p. 180, note (i).] 
 
 (c) 5 E. & B. 860, and better in 25 h. J. Q. B. 129, where the. case stated is- 
 given at length. 
 
 196- 
 
ADVERTISEMENTS: DOCTRINE EXTENDED TO TIME-TABLES. 178 
 
 -was removed from a County Court into the Queen's Bench and the 
 question was whether on the facts as stated in a case for the opinion 
 •of the .Court the plaintiff could recover (a). 
 
 It was held by the Court unanimously that the case showed a 
 good cause of action in tort for the false representation contained 
 in the time-tables : and by Lord Campbell, C. J., and Wightman, 
 J., that when any one offered to take a ticket to any of the places 
 to which the train was advertised to carry passengers the company 
 
 • contracted with him to receive him as a passenger to that place ac- 
 cording to the advertisement. Lord Campbell treated the 
 
 .statement in the time-table as a conditional promise which on 
 the condition being performed became absolute (6). Crompton, 
 
 (a) As to the measure of damages, which here was not in dispute, see Ham- 
 lin •». G. N. E. Co. 1H.&N. 408 ; 26 L. J. Ex. 20 (where a ticket having been 
 taken there-was an unquestionable contract). 
 
 (6) [In Gordon v. Railroad Co., 52 N. H. 596, it was held that the company 
 would not be liable for failure to transport the plaintiff (who was the holder of 
 a season ticket over its road) in accordance with its published time-table, if it 
 " had done all that due care and skill could do " to transport him punctually. 
 " The publication of a time-table, in common form, imposes upon a railroad 
 company the obligation to use due care and skill to have the trains arrive and 
 -depart at the precise moments indicated in the table; but it does not import an 
 .absolute and unconditional engagement for such arrival and departure, and does 
 not make the company liable for want of punctuality which is not attributable 
 to their negligence;" Cp. Sears v. Bailroad Co., 14 Allen, 433. In Crocker v. 
 Railroad Co., 24 Conn. 249, the defendants had established, and given public 
 notice of, a regulation that the fare on their line from N. to N. L. would be 
 fifty cents to passengers purchasing tickets before entering their cars, and to 
 -others fifty-five cents. Plaintiff took a seat in the train :it JN"., and after it had 
 .started, being called upon by the conductor, offered to pay fifty cents, and re- 
 fused to pay more for his fare from N. to N. L., and was thereupon removed 
 from the train by defendant's servants. An action of trespass having been 
 brought by him for having been wrongfully removed from the cars, it appeared 
 that plaintiff, on going a reasonable time before the time of departure of the 
 train to defendant's office where tickets were usually sold, found it closed, and 
 was unable then, or afterwards at any time before the train left, to procure a ticket, 
 -of whiebpfaqts he informed the conductor when the latter demanded his fare. The 
 regulation of defendants was admitted to be lawful and reasonable. Held, 
 " 1. That as common carriers the defendants were under no legal obligation to 
 furnish tickets, or carry passengers from N. to N. L. for less than fifty-five centr 
 -each. 2. That the plaintiff's claim to such a passage for fifty cents rested en- 
 tirely on the assumed engagement of the defendants to furnish tickets, and the 
 plaintiff's endeavor to procure one, defeated by the defendants. 3. That said 
 ■regulation of the defendants was not a contract, creating a legal debt or duty, 
 
 197 
 
179 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 J., (a) though not dissenting found certain difficulties in this and pre- 
 ferred to restbisjudgmentonabreach of thedefendant'sduty as com- 
 mon carriers. The opinion of the majority on this point was not nec- 
 essary to the decision, as the Court held unanimously that the plaint- 
 iff could recover in tort, and they only had to find whether on the- 
 f'acts stated he could succeed in any form of action. There can be 
 no doubt however that if the action had been brought in the 
 superior court in the first instance, and there had been before the 
 court on demurrer an aptly framed declaration on the facts stated 
 in the case, with counts in contract.and in tort, the plaintiff would, 
 have had judgment on both. Still, treating the matter as if it had' 
 actually been so, this judgment is not easy to reconcile with the 
 then recent decision of the same Court that the count in contract 
 in Gerhard v. Bates (b) was bad. 
 
 179] ^Reserving further observations, we proceed to the next case 
 in which an extension was suggested. There is this preliminary 
 observation to be made, that the -contract of sale in an ordinary 
 sale by auction is in no way anomalous, for each bidding is only a pro- 
 posal, and there is no contract until some bid is accepted by the fall 
 of the hammer, when there is a contract with an ascertained per- 
 son, namely the bidder to whom the lot is knocked down (c). 
 
 In Warlow v. Harrison a sale by auction was announced as with- 
 out reserve, the name of the owner not being disclosed. The lot 
 was put up, but in fact bought in by the owner. The plaintiff, who- 
 was the highest real bidder, sued the auctioneer as on a contract to 
 complete the sale as the owner's agent. The Court of Queen's 
 
 but a mere proposal, which might be suspended or withdrawn, by closing the- 
 defendant's office, and the retirement of their agent therefrom. 4. That the 
 proposal being withdrawn, the parties were in the same condition as before it 
 was made; the defendants continuing common carriers were bound to carry the- 
 plaintiff for fifty-five cents, but not otherwise. 5. That the plaintiff refusing 
 said sum, the conductor had a rigbt to remove him from the cars, using no un- 
 necessary force for that purpose, and that for such removal the defendants were- 
 not liable in an action for trespass." Cp. Eailroad Co. v. Dalby, 19 111. 358 ; 
 Eailroad Co. v. South, 43 111. 176; Eailroad Co. v. Rogers, 28 Ind. 1 ; 38 Ind. 
 116; Eailroad Co. v. Einard, 46 Ind. 293.] 
 
 (a) The fuller report of his judgment is that in 5 E. & B. 
 
 (6) 2E.&B. 476; 22 L. J. Q. B. 364; supra, p. 175. 
 
 (c) Payne v. Cave, 3 T. E. 148; cp. Savigny, Obi. 2. 92. [Grotenkemper »- 
 Aehtermeyer, 11 Bush, 222.] 
 198 
 
advertisements: sales by auction. 180 
 
 Bench (a) held that this was wrong; the Court of Exchequer 
 Chamber (6) affirmed, the judgment on the pleadings as they stood, 
 but thought the facts did show another cause of action. Wntson 
 and Martin, BB., and Byles, J., considered that the auctioneer con- 
 tracted with the highest bona fide bidder that the sale should be 
 without reserve (c); They said they could not distinguish the 
 case from that of a reward offered by advertisement, or of a state- 
 ment in a time-table. Willes, J., and Bramwell, B., preferred to say 
 that the auctioneer by his announcement warranted that he had 
 authority to sell without reserve, and might be sued for a breach 
 of such warranty. The result was that leave was given to the 
 plaintiff to amend and proceed to a new trial, which however was 
 not done (d). The opinions expressed by the judges, therefore, are 
 not equivalent to the actual judgment of a. Court of Error, and 
 have been in fact regarded with some doubt in a later case where 
 the Court of Queen's -Bench decided that at all events an auctioneer 
 whose principal is disclosed by the conditions of sale does not con- 
 tract personally that the sale shall" be without reserve (e). Still 
 more recently the same Court has held that when an auctioneer in 
 good faith advertises a sale of certain goods, he does not by that 
 advertisement alone enter into any contract or warranty with those 
 who attended the sale that the *goods shall be actually [180 
 sold (/). This case is analogous to Spencer v. Harding (g). 
 
 We can now resume the consideration of the principles which 
 govern or should govern the subject. The general view embodied 
 in the opinions of the majority of the judges in Denton v. G. N, 
 E. Co. and Warlow v. Hai'rison may be expressed in terms of the 
 regular elements of contract as follows :.One who proposes a con- 
 tract may make an identical proposal to several persons, so that 
 
 (a) 1 B. & E. 295 ; 28 L. J. Q. 13. 18. 
 
 (5) 1 B. & E. 309 ; 29 L. J. Q. B. 14. 
 
 (c) ["At such a sale, it is the right of the highest bidder to have the property 
 knocked down to him,> under any and all circumstances, without reference to 
 the amount to which the bidding may go;'' per Mcllvaine, J., in Walsh v. 
 Barton, 24 O. S. 28, 46-7 ; Towle v. Leavitt, 23 N. H. 360; but see Coryolles v. 
 Mossy, 2 La. 504.] ■ 
 
 id) The parties agreed to a stst processus; see note in the L. J. report. 
 
 (e) Mainprice v. Westloy, 6 B. & S. 420; 34 L. J. Q. B..229. 
 
 (/) Harris v. Nickerson, L..E. 8 Q. B. 286. 
 
 (a) L. B, 5 C. P. 561 ; supra, p. 176. 
 
 199 
 
180 CHAP. V. PERSONS AFFECTED BT CONTRACT. 
 
 there shall be a contract, according to the nature of the case, either 
 •with that person only who first accepts, or with every one separately 
 ■who accepts the proposal. Such proposal need not be addressed to 
 any definite number of persons, nor communicated immediately by 
 the proposer himself, but may be made by a public announcement ' 
 addressed to all persons to whose -knowledge it shall come. [Where 
 a proposal is made by such announcement, a revocation of it by an 
 equally public announcement is effectual even as against a person 
 ■who afterward acts on the original proposal without knowledge of 
 the revocation ; for " he should have known that it could be re- 
 voked in the manner in which it was made"] (a). 
 
 Performance of the conditions of the proposal is a sufficient ac- 
 ceptance and is also a sufficient consideration for the promise. 
 Knowledge of the proposal and an intention to accept it may be 
 presumed from the fact of performance (A). 
 
 (») So held by the Supreme Court of the United. States in Shuey v. U. S., 
 fl2 U. S. 73. It would be more exact to say that in such a case the proposal it- 
 self is subject to an implied condition to this effect. Sed qu. [As to the expira- 
 tion of such an offer by lapse' of time, see Langdell Sel. Ca. Cont., p. 1073 ; 
 Loring v. Boston, 7 Met. 409 ; cp. Matter of Kelly, 39 Conn. 159.] 
 
 (6) This (if not more) seems to be involved in the decision in Williams v. 
 Carwardine, supra, p. 175. [The performance of an act, for the doing of which 
 a reward is promised, gives rise to a unilateral contract. Supra, p. 160, note (5). 
 The promise " was but an offer until its terms were complied with. When that 
 ■was done it thenceforth became a binding contract, which the offerer was bound 
 to perform his share of;" Cummings v. Gann, 52 Pa. St. "484, 490. 
 
 "Until something is done in pursuance of it, it is a mere offer and may be 
 Tevoked. But if, before it is retracted, one so far complies with it as to per- 
 form the labor, for which the reward is stipulated, it is the ordinary case of la- 
 lor done on request, and becomes a contract to pay the stipulated compensa- 
 tion:" Wentworth v. Day, 3 Met. 352, 354; Furman v. Parke, 1 Zabr. 310; 
 Gilmore v. Lewis, 12 Ohio, 281; JRyer v. Stockwell, 14 Cal. 134; Janvrin u. 
 Exeter, 48 N. H. 83 ; Alvord v. Smith, 63 Ind. 58, 62 ; Harson v. Pike, 16 
 Ind. 140. 
 
 To entitle one to the reward, he must show that the terms of the offer have 
 ibeon complied with: Oornelson v. Insurance Co., It La. Ann. 345; Jones v. 
 Bank, 8 N. Y. 228; Furman v. Parke, 1 Zabr. 310; Clanton v. Young, 11 Rich. 
 L. 546. 
 
 The decision in Symmes v. Frazier, 6 Mass. 344, and Hawkv. Marion County, 
 48 la. 472, that where a reward is offered for. the recovery of a sum of money 
 lost, the finder of a part is entitled to a^ro rata portion of the reward offered, 
 can not, it is believed, be sustained. 
 
 It has been held in several cases that it is not necessary for the person who 
 does the act, for doing which a reward is offered, to know of the offer in uader 
 200 
 
CONTRACT BY ADVERTISEMENT: EXTENT OF DOCTRINE. 131 
 
 This affords a satisfactory explanation in the ordiuary case of a 
 Teward or reimbursement offered by advertisement. The effect is 
 the same as if the promisor had hired the acceptor in person to 
 «lo the service for -which the reward is offered. It has been in fact 
 suggested from the bench that an action for work and labor might 
 have been allowed in these cases, and the advertisement treated as 
 evidence of the value of the work done (a). 
 
 *The case of the intending passenger who relies on the [181 
 time-table is not so plain. There we must consider the demand of 
 a ticket for the proposed journey, accompanied with an offer to pay 
 the proper fare, as the act of acceptance which completes the con- 
 tract. But this demand is itself the proposal of another and dis- 
 tinct contract, namely to carry the passenger on that particuhir 
 journey in consideration of actual payment of the fare (by. It seems 
 a little odd to hold that the proposal of one contract operates as 
 the conclusion of another preliminary and auxiliary contract^ 
 namely that the person to whom the proposal is made shall be ca- 
 pable of carrying out the principal conk-act — and that a refusal to 
 enter into the principal contract constitutes a breach of this aux- 
 iliary one. Moreover the consideration for the auxiliary contract 
 -consists in the preparations made by the party for entering into 
 the principal one. The same remarks apply (mutatis mutandis) to 
 the case of the auctioneer's undertaking to sell without reserve. 
 "We have to suppose a contract concluded not by the acceptance 
 of a bidding but by the bid itself. A greater difficulty lies in the 
 problem of settling the extent of the doctrine. If a man adyer- 
 
 to entitle him to the reward : Eagle v. Smith, 4 Houst. 293 ; Auditor v. Bal- 
 lard, 9 Bush, 572 ; Kussell v. Stewart, 44 Vt. 170 ; Dawkins v. Sappington, 26 
 Ind. 199. ^ 
 
 But this is utterly, inconsistent with the idea that the obligation to pay the 
 reward arises out of a contract. '' Where a contract is proposed tq all the 
 world, in the form of a proposition, any party may assent to it, and it is bind- 
 ing, hut he can not assent without knowledge of the proposition :" Howlandn. 
 Lounds, 51 N. Y. 604, 609 ; Pitch v. Snedaker, 38 2ST. Y. 248 ; Stamper v. Tem- 
 ple, 6 Humph. 113 ; Lee v. Flemingsburg, 7 Dana, 28.] 
 
 („) Per Lord Campbell, C. J., in Gerhard v. Bates, 2 E. & B. 476; 22 L. J. C. 
 P. 364, 369; per Crompton, J., in Denton v. G. N. B. Co.,,supra. , , 
 
 (J) [" The time-table is not, as Mr. Pollock seems to suggest, the offer of a 
 .separate promise, but a term in the general contract to carry ; " Anson on Con- 
 tracts, p. 26. . '., 
 
 "A public advertisement of the times. when their trains run enters, into ,thje 
 -contract, and forms part of it;" Sears v. Railroad Co., 14 AJlen, 433, 4,3£j.J , 
 
 201 
 
182 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 tises that he has goods to sell at, a certain price, does he contract, 
 with' any one who comes and offers to buy those goods that until 
 further notice communicated to the intending buj-er he will sell 
 them at the advertised price? (a). Again, does the manager of a. 
 theater contract with every one who comes. to the theater and is 
 ready to pay for a place that the piece announced shall be per- 
 formed? or do directors or committeemen who summon a muet- 
 ing contract with all who come that the meeting shall be held?' 
 Again, on this theory a common carrier would be liable in con- 
 tract as well as in tort for refusing to carry goods — indeed the 
 case seems not distinguishable from that of the time-table. In 
 short, we might thus arrive at an extended notion of contract 
 which would cover all the cases in which courts of equity have 
 interfered, on grounds independent of contract, as was supposed, 
 to compel persons to make good their representations (b), and 
 would indeed, go beyond them; for a representation not only of 
 fact, but of mere intention, might be treated as a proposal, and as 
 182] soon as any thing was done on *the faith of it there would 
 be an acceptance and a complete contract. On some such prin- 
 ciple it has been attempted in America to enforce the payment of 
 voluntary subscriptions for charitable or public objects; but its- 
 fallaey has been exposed by a late decision of the Supreme Court, 
 of Massachusetts (c). 
 
 (rt.) See per Crompton, J., in Denton v. G-. N. E. Co., supra. 
 
 (ft) See Dav. Conv. 3, pt. 1. 646 ; per Lord Selborne, L. K. 6 H. L. at p. 360- 
 
 (c) Cottage Street Church v. Kendall, 121 Mass. 528; [Trustees v. Stewart,. 
 1 N. Y. 581. Cases are numerous in this country of actions brought to collect 
 subscriptions, and defendants have generally been held liable on them. The li- 
 ability is put in some cases on the ground that the promise of each subscriber- 
 is made in consideration of the promise of every other: Society in Troy v. 
 Perry, 6 N. H. 164 ; George v. Harris, 4 N. H. 533 ; Trustees v. Stetson, 6 Pick.. 
 506; Lathrop v. Knapp, 27 Wis. 214; Underwood v. Waldron, 12 Mich. 73; 
 Pierce v. Euley, 5 Ind. 69 ; 'Watkinsv. Eames, 9 Cush. 537 ; Comstock v. Howd,. 
 15 Mich. 237. 
 
 To this the Court, in Cottage St. Church v. Kendall, reply that "similar- 
 promises of third persons to the plaintiff may be a consideration for, agree- 
 ments between those persons and the defendant; but as they confer no benefit- 
 on the defendant, and impose no charge or obligation on the plaintiff, they con- 
 stitute no legal consideration for the defendant's promise to him." 
 
 Admitting the truth of this, yet a promise by A. to B. to give C. a certain: 
 sum of money, made in consideration of a similar promise by B. to A. would. 
 be a binding obligation on A., and by force of the rule generally prevailing inu 
 202 
 
CONTRACT BY ADVERTISEMENT: EXTENT OF DOCTRINE. 182" 
 
 Another matter for remark is the effect of notice of revocation. 
 Suppose the traveler had seen and read a new and correct edition 
 of the time-table in the booking office immediately before he of- 
 fered -to take his ticket. This would clearly have been a revoca- 
 tion of the proposal of the company held out in the incorrect time- 
 table, and on the present hypothesis no contract could arise. 
 Similarly if on putting up a particular lot the auctioneer expressly 
 retracted as to that lot the statement of the sale being without re- 
 serve, there could be no such contract with the highest bona, fide- 
 bidder, as supposed in Warlow v. Harrison. But this, it may be 
 answered, matters little, for if there is any real grievance the party 
 aggrieved may still have his remedy by suing in tort. He may 
 so; and he would equally have it if the notion of contract had 
 never been introduced into these cases. Or are we to say that a 
 reasonable notice of revocation must be given ? This would be to 
 eay that the proposal of a contract gives the person to whom the- 
 proposal is made a sort of inchoate right which may be violated 
 by an unreasonable revocation : a doctrine which in English law 
 is absolutely unheard of (a). Then there is also the difficulty of 
 determining what acts constitute the acceptance, and at what 
 point of time the acceptance is complete ; which, when the nature 
 of the case did not provide for a formal act such as making a bid 
 or demanding a ticket, might be exceedingly serious. 
 
 this country, see infra, 198, note (d) (and which does not prevail in Massachu- 
 setts, Bank v. Eice, 107 Mass. 37), that A.'s promise to B.to pay C. may bo sued. 
 on by C;, can not C, the beneficiary, enforce the obligation, not through the 
 naked promise made to him, but through the promise, made for his benefit, 
 to B.? 
 
 Again, the circumstances may be such as to permit the subscriptions' being 
 construed as an offer by the subscribers ■ to pay the sums set opposite, their 
 names, to a person named, if he will, or generally, to any person who will, do a 
 certain thing, so as, upon performance of the act by plaintiff, to give rise to a 
 unilateral contract: Trustees v. Allen, 14 Mass. 171; Bryant v. Goodnow, 5 
 Pick. 228; Commissioners v. Perry, 5 Ohio, 56; McAuley v. Billenger, 20- 
 Johns. 89; Caul v. Gibson, 3 Pa. St. 416; McDonald v. Gray, 11 la. 508 ; Mc- 
 Clure v. Wilson, 43 111. 356 ; Philomath College v. Hartless, 6 Oreg. 158 ; Barnes 
 ■o. Perrine, 12 N. Y. 18; Mirick v. French, 2 Gray, 420; Coopers. McCrimmin, 
 33 Tex. 383; Norton v. Janvier, 5 Harringt. 346; State Treasurer v. Cross, 9- 
 Vt. 280 ; Hall v. City of Virginia, 91 Ills. 535.] 
 
 (a) Such a doctrine is not unknown on the Continent; see note to Frost «.- 
 Knight, L. R. 5 Ex. at p. 337, and p. 9, supra. As to the somewhat analogous- 
 su"'^estion made in that case, see s. c. in Ex. Ch. L. B. 7 Ex. at p. 117; 
 
 , 203 
 
183 , OHAP. V. -j* PERSONS AFFECTED, BY CONTRACT. . , . 
 
 Let us now turn to the other view, and see .whether the doctrine 
 of Denton -v. G. N. R. Co. and "Warlow v. Harrison can, be, better 
 supported on the theory of a. floating, obligation. On that theory- 
 there would be not a proposal, but a conditional obligation arising 
 at once from the announcement made by the promisor: it would 
 at any rate be necessary to find in that , announcement some 
 183] decided intention of contracting, and *|;his might furnish a 
 satisfactory limit to the class of cases in which an obligation could 
 be held to exist. But then where would be, the consideration"? 
 And even putting that objection out of ,sight, there remains the 
 absurd consequence already pointed out, that the offer could not 
 be revoked. To put an extreme case : suppose a man bound him- 
 self by a voluntary deed to give a sum of money to whoever 
 -should first come to his funeral, or to the person who should be the 
 next Lord Mayor after his death (a), could his executors, be sued 
 upon it ? In short, such a doctrine js impracticable. 
 
 There seem, therefore, to be grave difficulties either way ; and 
 when we bear in mind that the judgments which suggest them are 
 not really decisive, it may perhaps be thought that the whole mat- 
 ter is open to- reconsideration. It is submitted that the contracts 
 of the railway company and the auctioneer, if such contracts there 
 be, are express and actual, not implied in law ; that in all cases of 
 .actual contract the first thing is to ascertain the real intention of 
 the parlies not less as to the making' of any contract at all than as 
 to the construction of a contract if made; and that the judgments 
 in question may fairly be said to overstep this rule. The proposal 
 •of a definite service to be done for reward, which is in fact a re- 
 quest (in the sense of the ordinary English law of contract) for 
 that particular service, though not addressed to any one individu- 
 ally, is quite different in its nature from a declaration to allwhom 
 it may concern that one is willing to do business with them in a 
 particular manner. Of course the person who publishes such an 
 invitation does contemplate that people who choose to act on it will 
 do whatever is necessary to put themselves in a position to avajl 
 themselves of it, such as sending in tenders by letter, coming to a 
 shop or a railway station, and the like. So far as all these things 
 .are necessary to bring customers, he desires them to be done; but 
 they are merely incidental to the real object; they are not ele- 
 
 (a) See the dispositions (by legacy) to uncertain persons suggested in Gai. 2. 
 238; cp. remark of Lord Campbell, 0; J. 3 E. &B. 83.7. 
 % 204 
 
CONTRACT BT ADVERTISEMENT: EXTENT OP DOCTRINE. 184 
 
 ments of a contract but preliminaries. It does not seem consonant 
 either with legal or with natural reason to construe such prelimi- 
 naries into the consideration for a contract which the parties had 
 no *intention of making (a). A comparison of the view [184 
 here proposed with the recent cases of Spencer v. Harding (b), and 
 Harris v. Nickerson (e), will show that it has been substantially- 
 acted upon, though somewhat differently expressed. The Courts 
 appear in those cases, if we may venture to say so, to have returned 
 to a sounder observance of the general principles of contract. 
 
 It may perhaps be safely inferred that the doctrines of Denton 
 v. G-. N. E. Co. (d) and Warlow v. Harrison (e), if not directly dis- 
 approved, will at least not be extended beyond their application to 
 precisely similar circumstances. 
 
 A discussion of the remedy by action in tort for false representa- 
 tion in cases of this claBS is not within the province of this work. 
 If that remedy were made co-extensive with the real or supposed 
 concurrent remedy in contract so far as concerns the rights and lia- 
 bilities of deceased persons' estates, the attainment of substantial 
 justice might be promoted, and all inducement to artificial exten- 
 sions of the law of contract removed. 
 
 We have postponed to the end of this discussion the mention of 
 a recent case in equity decided partly on a ground which brings it 
 into this class, though it is chiefly important as the first of a 
 series establishing another proposition which will find its place 
 farther on (/). 
 
 The question was as to the effect of the following letter of credit 
 given by Agra and Masterman's Bank to Dickson, Tatham and. Co. 
 
 "No. 394. You are hereby authorized to draw upon this bank at six 
 months sight, to the extent of £15,000 sterling, and such drafts I under- 
 take duly to honor on presentation. This credit will remain in force 
 for twelve months from this date, and parties negotiating bills under 
 it are requested to indorse particulars on the back hereof. The bills 
 
 (a) To the like effect Vangerow, Pand. § 603 (3. 258) distinguishing an actuals 
 proposal (Antrag) from mere invitation of proposals (Aufforderungen zu An-- 
 tragen). 
 
 (Z>) L. E. 5 C. P. 561 ; supra, p. 176. 
 
 (c) L. R., 8 Q. B. 286 ; supra, p. 180. 
 
 (d) 5 B. & ft 860? 26- B; J: Q. B. 129. 
 
 (e) 1 B. & E. 309 ; 29 L. J. Q. B. 14. 
 
 (/) Ex parte Asiatic Banking Corporation, 2 Ch. 891. 
 
 205 
 
 
 
185 CHAP. V. PEKSONS AFFECTED BY CONTRACT. 
 
 must specify that they are drawn under credit. No. 394, of the 31st'of Oc- 
 tober, 1865." 
 
 The Asiatic Banking Corporation held for value bills drawn pn the 
 185] Agra and Masterman's Bank under this letter; the Bank 
 ^Stopped payment before the bills were presented for acceptance, 
 and Dickson, Tatham & Co, were indebted to the Bank in an amount 
 •exceeding what was due on the bills : but the Corpoi'ation claimed 
 nevertheless to prove in the winding-up for. the amount, one of the 
 grounds being " that the letter shown to the person advancing 
 money constituted, when money was advanced on the faith of it, a 
 •contract by the Bank to accept the bills." Cairns, L. J., adopted 
 this view, holding that the letter did amount to " a general invita- 
 tion " to take bills drawn by Dickson, Tatham & Co. on the Agra 
 and Masterman's Bank, on the assurance that the Agra and Mas- 
 terman's Bank would accept such bills on presentation ; and that 
 the acceptance of the offer in this letter by the Asiatic Banking 
 Corporation constituted a binding legal contract against the Agra 
 and Masterman's Bank. He then went on to the other ground of 
 decision, of which more afterwards. Scott v. Pilkington (a) is to 
 some extent adverse to this view. There the action was brought 
 on a judgment of the Supreme Court of New York, on a very sim- 
 ilar state of facts (b). The decision was that the law applicable to 
 the case wrts the law of New York, and that the judgment having 
 been given by a court of competent jurisdiction in a case to which 
 the local law was properly applicable, there was no room to ques- 
 tion its correctness in an English court. , So far as any opinion was 
 expressed by the Court as to what should have been the decision 
 on the same facts in a case governed by the law of England, it was 
 against any right of action at law being acquired by the bill- 
 holders. This, however, was by the way, and as a concession to 
 the defendants, and is therefore no positive authority. Any how 
 the difficulties we have suggested above do not seem to exist in this 
 case. Prom an open letter of credit (containing, too, in this in- 
 stance an express request to jtersons negotiating bills under it to 
 indorse particulars) there may be inferred without any violence, 
 either to law or to common reason a proposal or request by the 
 .author of the letter to the mercantile public to advance money on 
 the faith of the undertaking expressed in the letter. This under- 
 
 (o) 2 B. & S. 11; 31 L. J. Q. B. 81. 
 ib) [Scott v. Pilkington, 15 Abb. Pr. 280.] 
 206' 
 
CONTRACT BY ADVERTISEMENT. 186 
 
 taking must then be treated as addressed to any one who shall so 
 advance money : the thing to be performed by way of consideration 
 for the undertaking is definite and substantial, and *is in [186 
 fact the main object of the transaction. If any question arose as to 
 a revocation of the proposal, it would be decided by the rules which 
 apply to the revocation of proposals made by letter in general (a). 
 There is no fiction or anomaly in the matter (6). 
 
 The bearing of the Statute of Frauds on these contracts made by 
 advertisements or general offers has been discussed incidentally in 
 a case brought before the Judicial Committee of the Privy Council 
 on appeal from the Supreme Court of New South Wales (c.) It is 
 settled that the requirements of the statute in the cases where it 
 applies are generally not satisfied unless the written evidence of the 
 contract shows who both the contracting parties are. But it was 
 suggested in the Colonial Court that in the case of a proposal made 
 by advertisement, where the nature of the contract (e.g. a guar- 
 anty) was such as to bring it within the statute, the advertisement 
 itself might be a sufficient memorandum, the other party being in- 
 dicated as far as the nature of the transaction would admit (d). 
 The Judicial Committee, however, showed a strong inclination to 
 think that this view is not tenable, and that in such a case the evi- 
 
 (o) See, however, Shuey v. United, States, note (a), p. 180 above. 
 
 (6) ["A letter written within a reasonable time before or after the date of 
 a bill of exchange describing it in terms not to be mistaken, and promising to 
 accept It, is, if shown to. be a person who afterwards takes the bill on the credit 
 of the letter, a virtual acceptance binding the person who makes the promise: 7 ' 
 Coolidge v. Payson, 2 Wheat. 66, 75; Steman v. Harrison, 42 Pa. St. 49; Schim- 
 melpennich v. Bayard, 1 Pet. 264; Boyce v. Edwards, 4 Pet. Ill; Bayard v. 
 Lathy, 2 McLean, 462 ; Storey v. Logan, 9 Mass. 55 ; Bank v. Bice, 98 Mass. 
 288; Bank v. Richards, 109 Mass. 413; Greele y. Parker, 5 Wend. 414; Good- 
 rich v. Gordon, 15 Johns. 6. 
 
 Further, it is well settled that if A. give a letter to B-> promising to accept 
 any bills which B. may draw, or to stand as surety for the payment of any 
 indebtedness he may incur, an action will lie against A. in favor of. any person 
 who gives value to B. on the faith of and within the terms of the letter : Lawrason 
 ■v. Mason, 3 Cr. 492; Lonsdale v. Bank, 18 Ohio, 126; Borland v. Mullhollan, 10 
 O.S. 192.; Nisbett v. Galbraith, 3 La. Ann. 690; Smith v. Ledyard, 49 Ala. 279; 
 Griffin, v. Rembert, 2 S. G. 41.0; Nelson v. Bank, 48 111. 36; Bissell v. Lewis, 4 
 Mich. .450; Barney v. Newcomb, 9 Gush. 46; Russell, ■». Wiggin, 2 Story, 213; 
 Banks. Lynde, Ct. App. Md. 9 Hep. 211;. Lowry, v. Adams> 22 Vt. 160; Bank 
 v. Goster's Ex'rs., 3.N. T. 203; Cassell v. Dows, 1 Blatchf. 335; McNaughton v. 
 Conklinjr,'9 Wis. 316.] , , ' ' 
 
 (c) Williams v. Byrnes, 1 Moo. P. C..C. N. S. 154. 
 
 (d) Per Stephen, C. J., at pp. 167, 184. 
 
 207 
 
197 CHAP. V. PERSON!! AFFECTED BY CONTRACT. 
 
 dvnce required by the statute would not be complete without some- 
 further writing to show who in particular had accepted the- pro- 
 posal (a).' It was observed that as a matter of fact the cases on. 
 advertisements had been of such a kind that the statute did not 
 apply to them, and 1 it was a mere circumstance that the advertise- 
 ment was in writing (b). We are not aware of the point having- 
 arisen in any later case. The opinion here expressed by the Court 
 m worth noticing for another reason. It is an authority in favor of 
 the view which we have adopted' as the sounder one, namely that 
 there' is no anomalous contract, but a contract between ascertained 
 persons which is constituted by the acceptance of the proposal. 
 
 Part 3. Effects of Contract as to Third Persons. 
 
 The affirmative part of our second rule, namely : The creditor 
 can demand performance from the debtor or his representatives, 
 187] *is now and long has been, though it was not always, ele- 
 mentary (c), 
 
 The negative part of it states that the creditor can not demand, 
 nor can the debtor require him to accept, performance from any third' 
 person. This is subject to the explanation that the debtor or his- 
 fepres'entatives may perform the duty by an agent, which again is- 
 
 (a) [This objection was raised by counsel, but did not prevail in Bank v. Cos- 
 ter's Ex'r., 3 N. Y. 203, and Griffin v. Rembert, 2 8. 0. 410.] 
 
 (b). See at p. 198. The language of the head-note is misleading; there is no- 
 suggestion in the judgment of any such proposition of law as that the Statute 
 of Frauds is not applicable to contracts made in this manner. 
 
 (c) As to the liability of personal representatives on the contracts of the 
 testator or intestate, see 1 Wms. Saund. 241-2. The old rule that an action of 
 debt on simple contract would not lie against executors where the testator coulcL 
 have waged his law (though it is said the objection could be taken only by de- 
 murrer) seems to have been in truth an innovation. See the form of writ for 
 or against executors, Fleta 1. 2, e. 62, \ 9, and cp. F. N. B. 119 M, 121 O (the 
 latter passage is curious : if a man has entered into religion his executors 
 shall be sued fpr his debt, not the abbot who accepted him into religion : see p. 
 61, note (6), supra), and Y. B. 30 Ed. 1 (Bolls ed.), p. 238. It is said, however, 
 that ''Quia executores non .possunt facere legem pro defuncto, petens probabit 
 talliam suam, vel si habeat sectam secta debet examinari :" Y. B. 20 & 21 Ed, 
 1, p. 456. For the conflict of opinion as to the remedy by assumpsit, see Beeves 
 3i 403; Y. B. Mich. 2. H. 8. 11, pi. 3, the. strange dictum contra of Fitzherbert, 
 Trin. 27 H. 8. 23, pi. 21, who said there was no remedy at all, and Norwood v. 
 Bead, in Br., Plow. 180, followed by Pinchon's ca. in Ex. Oh. 9 Co. Rep. 8Gb r 
 where this dictum was overruled, authorities reviewed and explained, and the- 
 common law settled in substance as it now is. 
 208 
 
THIRD PERSONS NOT BOUND. 188- 
 
 modified by the exception of strictly personal contracts as men- 
 tioned at the end of the rules. On this we need not dwell ate 
 present. 
 
 It is obvious on principle that it is not competent to contracting 
 parties to impose liabilities on other persons without their consent. 
 
 Every person not subject to any legal incapacity may dispose* 
 freely of his actions and property within the limits allowed by the- 
 general law. Liability on a contract consists in a further limitation 
 of this disposing power by a voluntary act of the party which 
 places some definite portion of that power at the command of the 
 other party to the contract. So much of the debtor's individual 
 freedom is taken from him and made o% r er to the creditor (a). 
 When there is an obligation independent of contract, a similar- 
 result is produced without regard to the will of the party : the lia- 
 bility is annexed by law to the party's own wrongful act in the 
 case of tort, and in the case of quasi-contracts to another class of 
 events which may be roughly described as involving the accession, 
 of benefit through the involuntary loss *of another person : [188' 
 but when an obligation is founded upon a true contract, the assent 
 of the person to be bound is at the root of the matter and is indis- 
 pensable (b). 
 
 The ordinary doctrines of agency form no real exception to this. 
 For a contract made by an agent can bind the principal only by 
 force of a previous authority or subsequent ratification ; and that 
 authority or ratification is nothing else than the assent of the prin- 
 cipal to be bound, and the contract which binds him is his own con- 
 tract. Under certain conditions there may be a contract binding 
 on the agent also, but with that we are not here concerned. We 
 shall return to the subject of agency under Eule 3, and the rights 
 and liabilities of principals and agents respectively on contract* 
 made by agents will then be more fully considered. 
 
 Another less simple apparent exception occurs in the cases in 
 
 (a) Cp. Savigny Obi. § 2. 
 
 (b) Lumley v. Gye, 2 E. & B. 216 ; 22 L. J. Q. B.' 463, shows that a stranger 
 may be liable in tort for maliciously procuring the breach of a contract. [See 
 "Walker v. Cronin, 107 Mass. 555 ; Rice v. Manly, 66 N. T. 82 ; Benton v. Pratt, 
 2 Wend. 385; Jones v. Blocker, 43 Ga. 331 ; Haskins v. Royster, 70 N. C. 601 j 
 Tones v. Stanley, 76 Tx. C. 355.] But this is not an obligation under the con- 
 tract, any more than when A. sells his land to B. the duty of all men to re- 
 spect the rights of B. instead of A., as owner of that land, is a duty under the> 
 contract of sale or the conveyance. 
 
 209 
 
189 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 ■which companies have been held liable to fulfill the agreements 
 made by their promoters before the companies had any legal ex- 
 istence. These cases however proceed partly on the ground of a 
 distinct obligation having either been imposed on the company in 
 its original constitution, or assumed by it after its formation (a), 
 partly on a ground independent of contract and analogous to 
 ■estoppel, namely that when any person has on certain terms assisted 
 or abstained from hindering the promoters of a company in obtain- 
 ing the constitution and the powers sought by them, the company 
 when constituted must not exercise its powers to the prejudice of 
 that person and in violation of those terms. The doctrine as now 
 •established probably goes as far as this, but certainly no farther (6). 
 
 In one case of a suit in equity for specific performance of an 
 award a third person interested in the subject-matter was made a 
 party: and Sir L. Slmdwell held that he was bound by the award, 
 189] though he had not been a party to the reference and had *in 
 no way assented to it, but simply knew of it and remained pas- 
 sive (c). This decision does not appear to have been much considered, 
 and does appear quite contrary to principle. Moreover it can not 
 stand with Lord Cottenham's decision in Tasker v. Small (<2) that 
 in a suit for the specific performance of a contract third persons 
 claiming an interest in the subject-matter are not even proper par- 
 ties : and even without this it is surely obvious (unless and until a 
 •court of final appeal shall think otherwise) that A. and B. have no 
 business to submit C.'s rights to the arbitration of D. It is appre- 
 hended accordingly that this exception may be treated as non- 
 existent. 
 
 Another branch of the same general doctrine, which, on principle, 
 is scarcely less obvious, is that the debtor can not be allowed to sub- 
 stitute another person's liability for his own without the creditor's 
 
 (a)'Lindley 1.409, 411. 
 
 (J) Lindley 1. 412-417. It has been held in Spiller v. Paris Skating Eink 
 Co., 7 Ch. D. 368, that a company can ratify a contract made by promoters be- 
 fore the company was in existence. Sed.qu. [See Van Schaik v. Eailroad Co., 
 38 N. Y. 346 ; Low v. Eailroad Co., 45 N. H. 370.] 
 
 (c) Govett v. Eichmond, 7 Sim. 1. The case of Taylor v. Parry, 1 Man. & 
 Gr. 604, seems at first sight to make the same way; but there the Court relied 
 on positive acts of the parties as showing that they adopted the reference and 
 .were substantially parties to it. 
 
 (d) 3 My. & Cr. 63,. followed in De Hoghton v. Money, 2 Ch. 164. 
 
 210 
 
NOVATION. 190 
 
 «ssent («). Some authorities which illustrate this are referred to 
 in a subsequent chapter where we consider from another point of 
 View the rule that a contract can not be made except with the per- 
 son with whom one intends to contract (b). When a creditor 
 assents, at the debtor's request, to accept , another person as his 
 debtor in the place of the first, this is called a novation. Whether 
 there has been a novation in any particular case is a question of 
 fact, but assent to a novation is not to be inferred from conduct un- 
 less there has been a distinct and unambiguous request (c). Such 
 -questions are especially important in ascertaining who is liable for 
 the partnership debts of a firm when there has been a change in 
 the members of the firm, or on contracts made in a business which 
 has been handed over by one firm (whether carried on by a single 
 person, a partnership, or a company) to another. A series of cases 
 which were, or were supposed to be of this kind, has arisen in late 
 years out of successive amalgamations of life insurance compa- 
 nies (d). 
 
 The question may be resolved into two parts : Did the new 
 *firm assume the debts and liabilities of the old? and did [190 
 the creditor, knowing this, consent to accept the liability of the 
 new firm and discharge the original debtor (e) ? It would be be- 
 yond our scope to enter at large on this subject, for an exposition 
 of which the reader is referred to Mr. Justice Lindley's work on 
 Partnership (/). 
 
 There exist, however, exceptions to the general rule. In certain 
 •cases a new liability may, without novation, be created in substitu- 
 tion for or in addition to an existing liability, but where the possi- 
 bility exists of such an exceptional transfer of liabilities it is bound 
 up with the correlated possibility of an exceptional transfer of 
 rights, and can not be considered alone. For this reason the ex- 
 ceptions in question will come naturally to our notice under Rule 
 
 (a) [Jones v. Walker, 2 Paine, 688, 708; Cannon v. Kreipe, 14 Kan. 324.] 
 
 (b) Eobson v. Drummond, 2 B. & Ad. 303; infra, Ch. VIII. 
 (e) Conquest's ea., 1 Oh. D. 334, 341. 
 
 (d) It is doubtful whether some of these were really cases of novation : see 
 Sort's ca. and Grain's ca., 1 Ch. D. 307, 322. 
 
 (e) See Kolfe v. Flower, L. E. 1 P. C. 27, 44. 
 
 (/) 1. 450--465, 479-481: and as to the general principle of novation see Wil- 
 son v. Lloyd, 16 Eq. 60, 74; for a later instance of true novation, Miller's c, 3 
 
 Ch. 391. 
 
 211 
 
191 CHAP. "V. PERSONS AFFECTED BY CONTRACT. 
 
 4, when we deal with the peculiar modes in which rights arising" 
 out of certain classes of contracts are transferred. 
 
 Apart from novation in the proper sense, the creditor may bind 
 himself once for all by the original contract to accept a substituted 
 liability at the debtor's option. Such an arrangement is, in the- 
 nature of things, unlikely to occur in the ordinary dealings of pri- 
 vate persons among themselves. But it has been decided in the«, 
 winding-up of the European Assurance Society that where the deed 
 of settlement of an insurance company contains a power to trans- 
 fer the business and liabilities to another company, a transfer made- 
 under this power is binding on the policy-holders and they have no 
 claim against the original company (a). In the case of a policy- 
 holder there is indeed no subsisting debt (a), but he is a creditor 
 in the wider sense above defined (p. .171). 
 
 Rule 3. No third person can become entitled by the contract itself to- 
 dernand the performance of any duty under the contract. 
 
 Before we consider the possibility of creating arbitrary excep- 
 tions to this rule in any particular cases, there are some extensive- 
 191] *elasses of contracts and transactions analogous to contract 
 which call for attention as offering real or apparent anomalies. 
 
 A. Contracts made by agents. Here the exception is only ap- 
 parent. The principal acquires rights under a contract which he 
 did not make in person. But the agent is only his instrument to- 
 make the contract within the limits of the authority given to him, 
 however extensive that authority may be: and from the beginning 
 to the end of the transaction the real contracting party is the 
 principal. 
 
 Consider the following series of steps from mere service to full 
 discretionary' powers : 
 
 1. A messenger is charged to convey a proposal, or the accept- 
 ance or refusal of one, to a specified person. 
 
 2. He is authorized to vary the terms of the proposal, or to en- 
 deavor to obtain a variation of the other party's proposal (i.e. to 
 make the. best bargain he can with the particular person), within 
 certain limits. 
 
 3. He is not confined to one person, but is authorized to con- 
 
 (a) flort'a ca. and Grain's ca., 1 Ch. D. 307 ; Harman's ca., lb. 326 ; Cocker' »- 
 ca., 3 Ch. D. 1. 
 212 
 
RIGHTS OF THIRD PERSONS : AGENCY. 192 
 
 ■elude the contract with any one of several specified persons, or 
 .generally with any one from whom he can get the best terms. 
 
 4. He is not confined to one particular contract, but is author- 
 ized generally to make such contracts in a specified line of busi- 
 ness or for specified purposes, as he may judge best for the princi- 
 pal's interest (a). 
 
 The fact that in many cases an agent contracts for himself as 
 well as for his principal, and the modifications which are intro- 
 duced into the relations between the principal and the other party 
 -according as the agent is or is not known to be an agent at the 
 time when the contract is made, do not prevent the acts of the 
 .agent within his authority from being for the purposes of the 
 contract the acts of the principal, or the principal from being the 
 real contracting party. Again, when the agent is also a contract- 
 ing party there are two alternative contracts with the agent and 
 with the principal respectively. 
 
 As for the subsequent ratification of unauthorized acts, there is 
 no difference for our present purpose between a contract made 
 -*with authority and one made without authority and sub- [192 
 sequently ratified. The consent of the principal is referred back 
 to the date of the original act by a beneficent and necessary 
 -fiction. 
 
 Here would be the proper place to consider who can sue and 
 be sued on contracts made by agents : but as this discussion 
 would take op such an amount of space as to interfere with the 
 proportion and connection of the different parts of the subject, it 
 is reserved for an appendix which will be found at the end of this 
 -■chapter. 
 
 B. There are certain relations created by contract, of which that 
 of creditor, principal debtor, and surety may be taken as the type, 
 in which the rights or duties of one party may bo varied by a new 
 •contract between others. But when a surety is discharged by 
 ■dealings between the creditor and the principal debtor, this is the 
 result of a condition annexed by law to the surety's original con- 
 tract. There is accordingly no real anomaly, though there is an 
 .apparent exception to the vague maxim that the legal effects of a 
 -contract are confined to the contracting parties : and there is not 
 -even any verbal inconsistency with any of the more definite rules 
 .we have stated. However, it seems proper not to omit the men- 
 
 (ci) Cp. Savigny Obi. 2. 57-60. 
 
 213 
 
193 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 tion of such cases, inasmuch as they have been considered as real' 
 exceptions by writers of recognized authority (a). 
 
 Insolvency and bankruptcy, again, have various consequences- 
 which affect the rights of parties to contracts, but which the gen- 
 eral principles of contract are inadequate to explain. We allude- 
 to them in this place only to observe that it is best to regard them 
 not as derived from or incidental to contract, but as results of an> 
 overriding necessity and beyond the region of contract alto- 
 gether (6"). Even those transactions in bankruptcy and insolvency 
 which have some resemblance to contracts, such as compositions 
 with creditors, are really of a judicial or quasi-judicial character. 
 It is obvious that if these transactions were merely contracts no 
 dissenting creditor could be bound. 
 
 193] *0. The case of trusts presents a real and important ex- 
 ception, if a trust is regarded as in its origin a contract between 
 the author of the trust and the trustee. It is quite possible, and' 
 may for some purposes be useful so to regard it. , The Scottish in- 
 stitutional writers (who follow the Eoman arrangement in the 
 learning of Obligations as elsewhere) consider trust as a species of 
 real contract coming under the head of depositation (c). Con- 
 versely deposits, bailments, and the contract implied by law which 
 is the foundation of the action for money received, are spoken of 
 in English books as analagous to trusts (d). A chapter on the 
 duties of trustees forms part of the best known American text- 
 books on contracts, though no attempt is made, so far as we have 
 ascertained, to explain the logical connection of this with the rest 
 of the subject. 
 
 It is more important to observe that Lord Selborne, in a recent 
 case, where the question was of mortgagee's costs, made the follow- 
 ing observations : — 
 
 "The contract between mortgagor and mortgagee, as it is under- 
 stood in this Court, makes the mortgage a security ... for the costs 
 properly incident to a suit for foreclosure or redemption. In like man- 
 ner the contract between the author of a trust and his trustees entitles- 
 the trustees, as between themselves and their cestuis que trust, to receive 
 
 (a) Sfce Pothier Obi., ? '89. 
 
 (b) A striking instance is furnished by the rule in "Waring's case, 19 Ves~ 
 345 : see per Lord Cairns, Banner ■». Johnston, L. B. 5 H. L. at p. 174. 
 
 (e) Sie, though no such abstract term is known in Boman law. See Erskine,. 
 Inst. Bk. 3, Tit. 1. s. 32. 
 
 (d) Blaekstone, Comm. 8. 432. 
 214 
 
RIGHTS OF THIRD PERSONS I TRUST. 194r 
 
 out of the trust estate all their proper costs incident to the execution of 
 the trust. These rights, resting substantially upon contract, can only be 
 lost or curtailed by such inequitable conduct on the part of a mortgagee 
 or trustee as may amount to a violation or culpable neglect of his duty 
 under the contract" 
 
 This involves the statements — 
 
 1. That a trust is in its inception a contract. 
 
 2. And a contract such that third persons, namely the cestuis que 
 trust, acquire independent rights under it : which gives to the 
 transaction that exceptional character with which we are now con- 
 cerned. 
 
 And in fact the relation of a trustee to his cestui que trust is- 
 closely analagous to that of a debtor to his creditor, in so far as it 
 has the nature of a personal obligation and is jroverned by the 
 general rules derived from the personal character of obligations. 
 ♦Thus the. transfer of equitable rights of any kind is sub- [194 
 ject, as regards the perfection of the transferee's title, to precisely 
 the same conditions as the transfer of rights under a contract. 
 And the true way to understand the nature and incidents of equita- 
 ble ownership is to start with the notion not of a real ownership 
 which is protected only in a court of equity, but of a contract with 
 the legal owner which (in the case of trusts properly so called) 
 can not be enforced at all, or (in the case of constructiee trusts, 
 such as that which arises on a contract for the sale of land) can not 
 be enforced completely, except in a court of equity (a). 
 
 However although every trust may be said to include a contract, 
 it includes so much more, and the purposes for which the machin- 
 ery of trusts is employed are of so different a kind, that trusts are 
 distinct in a marked way not merely from every other species of 
 contract, but from all other contracts as a genus. The complex re- 
 lations involved in a trust can not be conveniently reduced to the 
 ordinary elements of contract, and there seems to be sufficient 
 justification (independently of the historical reason supplied by the 
 exclusive jurisdiction of Equity) for the course hitherto adopted 
 
 (a) See per Lord Westbury, Knox v. Gye, L. E. 5 H. L. at p. 675; Shaw v. 
 Poster, lb. at p. 338 (Lord Cairns), and at p. 356 (Lord Hatherley). ["At one 
 time the common-law courts attempted to punish trustees for a breach of 
 trust in damages, as upon an implied contract." Perry on Trusts, § 17, citing 
 Megod's case, Godb. 64; Jevon v. Bush, 1 Vern. 344; Smith v. Jameson, 5 T. 
 E. 603: 1 Eq. CaVAb. 384, D. A.] 
 
 215 ' 
 
195 CHAP. V. PERSONS AFFECTED BT CONTRACT. 
 
 by all English writers in dealing with trusts as a separate branch 
 of law. 
 
 D. Closely connected with the cases covered by the doctrine of 
 trusts, but extending beyond them, we have the rules of equity by 
 which special favor is extended to provisions made by parents for 
 their children. This exception has already been noted in stating 
 the general rule (p. 172 above). In the ordinary case of a marriage 
 settlement the children of the. contemplated marriage itself are said 
 to be " within the consideration of marriage" and may enforce any 
 covenant for their benefit contained in the settlement (a). Where 
 a settlement made on the marriage of a widow provides for her 
 children by a former marriage, such children, though in the tech- 
 nical language of equity volunteers, or persons having no part in 
 the consideration, are likewise entitled to enforce the provisions 
 195] for their benefit (6) : *but it is doubtful whether this extends 
 to the case of a husband making a provision for his children by a 
 former wife (c). 
 
 The questions how far limitations in a marriage settlement to per. 
 sons other than children can be supported by the consideration of 
 marriage, so as not to be defeasible under 27 Eliz. c. 4, against sub- 
 sequent purchasers, is a distinct and wider one, not falling within 
 the scope of the present work (d). 
 
 E. There is also a considerable class of statutory exceptions in 
 •cases where companies and public bodies, though not incorporated, 
 are empowered to sue and be sued by their public officers or trus- 
 tees. The enactments of this kind relating to companies are col- 
 lected and commented on by Mr. Justice Lindley (e). 
 
 The trustees of Friendly Societies and Trade Unions are likewise 
 empowered to sue, and may be sued, in their own names, in cases 
 concerning the property of the society or union (/). In a recent 
 
 (a) [Imlay v. Huntington, 20 Conn. 146, 166; Vason v. Bell, 53 Ga. 416.] 
 (5) [Michael v. Morey, 26 Md. 339.] 
 
 (c) Gale v. Gale, 6 Ch. D. 144, 152. [See Burge v. Burge, 45 Ga. 301. In 
 Neves v. Scott, 9 How. 196, provisions were enforced in favor of collateral rela- 
 tives.] 
 
 (d) The references in Gale v. Gale (last note) will guide the reader, if de- 
 sired, to the authorities, including the full discussion in Mr. May's book on Vol- 
 untary and Fraudulent Conveyances. 
 
 (e) Lindley, Ptnp. 1. 509, sqq. See also Leake on Contracts, 225 [2d ed. 442]. 
 ( /) Friendly Societies Act, 1875, 38 & 39 Vict., c. 60, s. 21 ; Trade Union 
 
 216 
 
STATUTORY POWERS TO SUE BY PUBLIC OFFICERS, ETC. 106 
 
 •case in the Queen's Bench an enactment that a local authority 
 might recover certain expenses, such authority not being incorpor- 
 ated and no special remedy provided, was held to make the local 
 -authority a quasi corporation for the purpose of suing (a). This 
 however was not on a contract, but on a purely statutory cause of 
 action. 
 
 By the 8 & 9 Yict. c. 106, s. 5 a person who is not a party to an 
 indenture may nevertheless take the benefit of a covenant in it re- 
 lating to real property. This enactment has not, so far as we know, 
 been the subject of any reported decision (b). 
 
 Having disposed of these special exceptions, we may now pro- 
 ceed to examine the rule in its ordinary application, which 
 *may be expressed thus : — The agreement of contracting [196 
 parties can not confer on a third person any right to enforce the 
 ^contract. 
 
 There are two different classes of cases in which it may seem 
 -desirable, and in which accordingly it has been attempted, to effect 
 this: (1) where the object of the contract is the benefit of a third 
 person : (2) where the parties are numerous and the persons really 
 interested are liable to be changed from time to time. 
 
 It was for a long time not fully settled whether a contract between 
 A. and B. that one of them should do something for the benefit of 
 C. did or did not give C. a right of action on the contract (c). 
 And there was positive authority that at all events a contract made 
 for the benefit of a person nearly related to one or both of the 
 -contracting parties might be enforced by that person (d). How- 
 ever, the rule is now distinctly established, so far as any common- 
 Act, 1871, 34 & 35 Vict., c. 81, s. 9. It is the same with building societies 
 formed before the act of 1874 and not incorporated under it. 
 
 (a) Mills v. Scott, L. E. 8 Q. B. 496. 
 
 lb) For an example of the inconvenience provided against by it see Lord 
 .Southampton v. Brown, 6 B. & C. 718, where the person who was really inter- 
 -ested in the payment of rent on a demise made by trustees, and with whom 
 jointly with. the trustees the, covenant for payment of rent was expressed to 
 be made, was held incapable of joining in an action onthe covenant. 
 
 (c) See Viner Abr. Assumpsit, Z. (1. 333-7); per Byre, C. J., Co.' of Felt- 
 makers ». Davis, 1 Bos. & P. 98 ; note to Pigott v. Thompson, 3 Bos. & P. 149. 
 
 (d) Dutton v. Poole (Ex. Ch.), 2 Lev. 210; Vent. 318, 322. Approved by Lord 
 Mansfield, Cowp. 443. There appears to have been much difference of opinion 
 
 .at the time; [Felton v. Dickinson, 10 Mass. 287; Schemerhorn v. Vanderhey- 
 ■den, 1 Johns. 139; Marlett v. Wilson's Ex'r., 30 Ind. 240.] 
 
 217 
 
197 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 law right of action is concerned, that a third person can not sue on< 
 a contract made by others for his benefit even if the contracting- 
 parties have agreed that he may, and that near relationship makes- 
 no difference. This was decided by the Court of Queen's Bench iti 
 Tweddle v. Atkinson (a). The following written agreement had 
 been entered into : 
 
 ' Memorandum of an agreement made this day between William- 
 Guy," etc., " of the one part, and John Tweddle of the other part- 
 Whereas it is mutually agreed that the said William Guy shall and will 
 pay the sum of £200 to William Tweddle, his son-in-law, railway inspector,, 
 residing in Thornton, in the county of Fife in Scotland, and the said 
 John Tweddle, father to the aforesaid William Tweddle, shall and will 
 tpuy the sum of £100 to the said William Tweddle, each and severally the 
 said sums on or before the 21st day of August, 1855 ; and it is hereby fur- 
 ther agreed by the aforesaid William Guy and the said John Tweddle- 
 that the said William Tweddle has full power to sue the said parties in 
 any court of law or equity for the aforesaid sums hereby promised and. 
 specified." 
 
 197] *William Tweddle, the son of John Tweddle, brought an 
 action against the executor of William Guy on this agreement, the- 
 declaration averring his relationship to the 1 parties, and their inten- 
 tion to carry out a verbal agreement made before the plaintiffs- 
 marriage to provide a marriage portion. The action was held not. 
 to be maintainable. The Court did not in terms overrule the older 
 cast's to the contrary, considering that their authority was already 
 sufficiently disposed of by the effect of modern decisions and prac- , 
 tice (b). 
 
 The doctrines of equity are not so free from doubt. There is 
 clear and distinct authority for these propositions : When two per- 
 sons, for valuable consideration as between themselves, contract to 
 do some act for the benefit of another person not a party to the 
 contract — 
 
 (i) That person can not enforce the contract against either of the 
 contracting parties, at all events if not nearly and legitimately re- 
 Jo) 1 B. & S. 393 ; 30 L. J. Q. B. 265, 
 
 (6) See also Price v. Easton, 4 B. & Ad. 433 ; [Bank v. Rice, 107 Mass. 37 ; 
 Halstead v. Francis, 8.1 Mich. 113 ; Clapp v. Lawton, 31 Conn. 95 ; see infra, p. 
 198, note (6)]. Much less can a stranger to a contract, who has suffered dam- 
 age by the non-performance of it sue the defaulting party for the damage- 
 Playfbrd v. United Kingdom Electric Telegraph Co., L. K. 4 Q. B. 706 ; Dick- 
 _»on v. Eeuter's Telegram Co., 2 O. P. D. 62, in C. A. 3 C. P. D. 1. 
 218 
 
WHETHER THIRD PERSONS CAN SHE IN EQUITY. 198- 
 
 1ated to one of them (a) (qu. if not within the exception men- 
 tioned above, p. 194, in favOr of children provided for by marriage- 
 settlements ?) t 
 
 (ii) But either contracting party may enforce it against the 
 other although the person to be benefited had nothing to do with 
 the consideration (b). 
 
 It seems. reasonable to suppose, notwithstanding the want of ex- 
 press authority, that near relationship would not now be held to 
 constitute of itself any ground of exception. 
 
 On the other hand the case of Gregory v. Williams (c) shows 
 that a third person for whose benefit a contract Is made may join 
 as co-plaintiff with one of the actual contracting parties against 
 the other, and insist on the arrangement being completely carried 
 out. The facts of that case, so far as now material, may be 
 stated as follows : Parker was indebted to Williams and also to 
 Gregory; Williams being informed by Parker that the debt to 
 Gregory was about £900, and that there were no other debts, un- 
 dertook to satisfy the debt to Gregory on *having an assign- [198 
 ment of certain property of Parker's. Gregory was not a party to 
 this arrangement, nor was it communicated to him at the time. 
 The property having been assigned to Williams accordingly, the- 
 Court held that Gregory, suing jointly with Parker, was entitled 
 to call upon Williams to satisfy his debt to the extent of £900 (but 
 not farther, although the debt was in fact greater) out of the pro- 
 ceeds of the property. It was not at all suggested that he could 
 have sued alone in equity any more than at law (d). 
 
 A dictum in the recent case of Touche v. Metropolitan liailway 
 Warehousing Co. (e), goes much further; for there it was said that 
 "where a sum is payable by A. B. for the benefit of C. D., C. D. 
 can claim under the contract as if it had been made with himself." 
 But no such doctrine was necessary to the decision of the case. 
 The suit was by promoters against the company. The articles of 
 association of the company recited an arrangement with G. H. 
 
 (a) Colyear v. Mulgrave, 2 Kee. 81. 
 
 (6) Davenport v. Bishopp, 2 T. & C. 451, 460; 1 Ph. 698, 704. 
 
 (c) 3 Mer. 582. 
 
 ■(d) For an attempt of a third person to sue at law under very similar cir- 
 cumstances, see Price v. Easton, 4 B. & Ad. 433, showing clearly that A. can 
 not sue on a promise by B. to C. to pay C.'s debt to A. [See p. 198, note [b).J 
 
 It.) 6 Ch. 671, 677. 
 
 219 
 
"199 CHAP. V. PERSONS AFFECTED BT CONTRACT. 
 
 Walker that he should pay a sum to the promoters, and one of the 
 .articles provided that the directors should pay that sum to Walker 
 in the event ^which happened) of a certain number of shares being 
 subscribed for and £2 upon each paid up. Now this was in truth 
 and substance an obligation embodied in the original constitution 
 • of the company to pay the sum in question to the promoters by 
 Walker as the company's agent, and on this ground the decision, 
 which at first sight looks anomalous, may well be supported (a). 
 
 However when we consider the grounds on which the judgment 
 was in fact based, and the earlier cases already referred to, it is im- 
 possible to say with confidence that the question how far third per- 
 sons can acquire equitable rights under contracts and independent 
 199] of trust is not to some extent unsettled (6). Another *ap- 
 
 (a) Mr. Justice Lindley (1. 410) seems to take this view of the case, which is 
 also supported by the later decisions in Eley v. Positive, &c, Life Assurance 
 Co. (C. A.), 1 Ex. D. 88, that a provision in articles of association that A. shall 
 be solicitor to the company and transact all its legal business is, as regards A., 
 res inter alios acta, and gives him no right against the company. See also MeU 
 -hado v. Porto Allegre Ry. Co., L. P. 9 C. P. 503. [Cp. Spiller v. Paris Skating 
 Kink Co., 7 Ch. D. 368 ; see supra, p. 188, note (6).] 
 
 (6) [In Hendrick v. Lindsay, 93 U. S. 143, 149, it is said. that "the right of a 
 party to maintain assumpsit on a promise not under seal, made to another for 
 his benefit, although much controverted, is now the prevailing rule in this 
 country ;" while in Bank v. Grand Lodge, 98 U. S. 123, the court say, that no 
 -doubt the general rule is that privity of contract must exist, though "there 
 are confessedly many exceptions to it ; . . . but the plaintiif 's case is 
 within none of them." One of the exceptions generally recognized is, where B. 
 puts into the hands of A. property, which A. promises either to deliver in 
 ..specie to C, or to use as a fund out of which to pay something to C. : Beers v. 
 Robinson, 9 Pa. St. 229; Allen v. Thomas, 3 Met. (Ky.) 198; Delaware, &c, 
 Canal Co. v. Bank, 4 Denio, 97 ; Miller o. Billingsley, 41 Ind. 489; Johnson v. 
 Collins, 14 la. 63 ; Brown v. O'Brien, 1 Eich. L. 268; Justice v. Tallman, 86 
 Pa. St. 147; Warren v. Batchelder, 16 N. H. 580; Perry v. Swasey, 12 Cush. 
 36; Mellenv. Whipple, 1 Gray, 317, 322; Crocker v. Higgins, 7 Conn. 342; 
 Barker v. Bradley, 42 N. T. 316 ; Thompson v. Gordon, 3 Strobh. 196. 
 
 Where property is transferred to A. by B., and, as part of the consideration 
 therefor, A. promises B. to pay a debt which the latter owes to C, it is held 
 that C. has a right of action against A. for the debt : Barker v. Bucklin, 2 
 Denio, 45 ; Lawrence v. Pox, 20 N. Y. 268 ; Dingeldein v. Railroad Co., 37 N. 
 Y. 575; Eddy v. Roberts, 17 111. 505; Beasley v. Webster, 64 111.458; Snell v. 
 Ives, 85 111. 279 ; Sanders v. Classon, 13 Minn. 379 ; Jordan v. White, 20 Minn. 
 -91 ; Hind v. Holdship, 2 Watts, 104; Mason v. Hall, 30 Ala. 599; McDowell v. 
 Laev, 35 Wis. .171 ; Johnson v. Knapp, 36 la. 616; Meyer v. Lowell, 44 Mo. 
 -328; Rogers ». Gosnell, 58 Mo. 589; Joslin v. N. J. Car Spring M'fg. Co., 36 
 220 
 
PARTIES CAN NOT ENABLE STRANGERS TO SUE. 199 
 
 parent or perhaps more than apparent exception is the case of Page' 
 v. Cox (a), where it was held that a provision in partnership arti- 
 
 N\ J. L. 141 ; Cross v. Truesdale, 28 Ind. 44; Morgan v. Overman S. M. Co., 
 37 Cal. 534. And this right passes as an incident on an asssignment of the - 
 debt by C. : Barlow v. Myers, 64 N. Y. 41. 
 
 If the contract between A. and B. be rescinded before C. acts upon it, C. no 
 longer has a right of action against A. : Trimble v. Strother, 25 O. S. 378 ; Davis . 
 v. Calloway, 30 Ind. 112; Durham*. Bischoff, 47 Ind. 211. But a rescission after - 
 C. has acted upon the contract can not affect his right of action against A. : 
 Bassett *. Hughes, 43 Wis. 319. 
 
 Where an owner of property upon which there is a mortgage to secure a 
 debt for the payment of which he is liable, conveys the property to another, 
 who assumes the payment of the mortgage debt, the grantee is held liable to- 
 the original mortgagee for the amount of the debt : Halsey v. Reed, 9 Paige, 
 446; Burr*. Beers, 24 N. Y. 178; Bieard v. Sanderson, 41 N. Y. 179; Klap- 
 worth *. Dressier, 2 Beasl. 62 ; Helms v. Kearns, 40 Ind. 124 ; Josselyn v. Ed- 
 wards, 57 Ind. 212, 218 ; Thompson *. Thompson, 4 O. S. 333 ; Anthony*. Herr- 
 man, 14 Kan, 494; Campbell v. Smith, 71 N. Y. 26; Calvo *. Davies, 73 N. Y. 
 211 ; Thompson v. Bertram, 14 la. 476 ; Urquhart ■„. Brayton, 12 E. I. 169. . 
 Contra, Mellen v. Whipple, 1 Gray. 317; Pettee *. Peppard, 120 Mass. 522. 
 Where the vendor is not personally liable to the mortgagee, the latter can 
 not sue the vendee, who, as between himself and his vendor, assumes the pay- 
 ment of an existing mortgage debt : Vrooman *. Turner, 69 N. Y. 280 ; Trotter • 
 v. Hughes, 12 N. Y. 74 ; King *. Whitely, 10 Paige, 465 ; Norwood v. De Hart, 
 30 N. J. Eq. 412. Contra, Merriman v. Moore, Sup. Ct. Pa., 8 Am. Law Eec- 
 341. 
 
 Though if the vendor be a married woman, whose separate estate is liable for- 
 the debt, that is sufficient to enable the mortgagee to sue her vendee for it: 
 Cashman v. Henry, 75 1ST. Y. 103; Hughes' Ex'r. v. Atwood, 26 N. J. Eq. 504;-. 
 affirmed, 28 N. J. Eq. 275. 
 
 If before action brought by the mortgagee the vendee reconveys to his ven- - 
 dor, who reassumes payment of the mortgage, the liability of the vendee is at 
 an end : Crowell v. Hospital of St. Barnabas, 27 BT. J. Eq. 650. 
 
 Where, on dissolution of a partnership, one partner has given a bond with < 
 sureties to the other, to secure the payment by the former of the firm debts, it 
 has been held that the creditors may sue the obligors in the bond. Devol *. Mc- 
 intosh, 23 Ind. 529 ; Claflin *. Orstrom, 54 N. Y. 581 ; Kimball v. Noyes, 17 Wis. . 
 695 ; cp. Merrill v. Green, 55 N. Y. 270 ; Eobb *. Mudge, 14 Gray, 534 ; Sim- 
 son «. Brown, 68 N. Y. 355. 
 
 That the right of one, not a party to the contract, to sue upon it, never ex- - 
 tends to the case of a contract under seal, is decided in Eobb v. Mudge, 14 
 Gray, 534; Northampton *. Elwell, 4 Gray, 81; How *. How, 1 N. H. 49;: 
 Moore v. House, 64 111. 162. Contra, Coster *. Mayor, 43 N. Y. 399 ; McDow- 
 ell *. Laev, 35 Wis. 171 ; Bassett v. Hughes, 43 Wis. 319; Rogers v. Gosnell, 51. 
 Mo. 466 ; Garvin *. Mobley, 1 Bush, 48.] 
 
 (a) 10 Ha. 163. 
 
 V ; 221 
 
200 CHAP. V. PERSONS AFFECTED BT CONTBACT. 
 
 -cles that a partner's widow should be entitled to his, share of the 
 business might be enforced by the widow. But the decision was 
 
 • carefully put on the ground that the provision in the articles cre- 
 ated a valid trust of the partnership property in the hands of the 
 surviving partner., 
 
 We now come to the class of cases in which contracting parties 
 have attempted for their own convenience to vest the right of en- 
 forcing the contract in a third person. Except within the domain 
 
 • of the stricter rules applicable to parties to actions on deeds and 
 negotiable instruments, there appears to be no objection to several 
 
 ■ contracting parties agreeing that one of them shall have power to 
 sue for the benefit of all except the party sued. Thus where part- 
 ners create by agreement penalties to be paid by any partner who 
 breaks a particular stipulation, they may empower one partner 
 alone to sue for the penalty (a). The application of the doctrines 
 of agency may also lead to similar results (V). It seems doubtful 
 whether a promise to several persons to make a payment to one of 
 them will of itself enable that one to sue alone (c). 
 
 But it is quite clear that the most express agreement of contract- 
 ing parties can not confer any right of action on the contract on a 
 jierson who is not a party. Various devices of this kind have be_e*i 
 tried in order to evade the difficulties that stand in the way of un- 
 incorporated associations enforcing their rights: and such devices, 
 in Mr. Justice Lindley's words (d), " however ingenious, are utterly 
 200] worthless. Attempts to enable *actions to be brought by the 
 chairman for the time being of the directors of a company (e), by the 
 
 (a) Radenhurst v. Bates, 3 Bing. 463, 470; [Cross v. Jackson, 5 Hill, 478]. Of 
 
 ■ course they must take care to make the penalty payable not to the whole firm, 
 but to the members of the firm minus the offending partner. [See Warren ». 
 
 .Stearns, 19 Pick. 73.] Whether under the present ' Rules of Court the other 
 partners could use the name of the firm to sue for the penalty, qucere. 
 
 (b) Spurr v. Cass, L. R. 5 Q. 11. 656. 
 
 (c) Chanter v. Leese, 4 M. & W. 295 ; inEx.Ch.5M. & W. 698, where both 
 courts inclined to think not, but gave no decision. In Jones ii. Robinson, 1 Ex. 
 454 ; 17 L. .T. Ex. 36, an action was brought by one of two late partners against ■ 
 the purchaser of the business on a promise to pay the plaintiff what was due to 
 him from the firm for advances. This was declared on as a separate promise in 
 addition to a general promise to the two partners to pay the partnership debts, 
 and the only question was whether there was any separate consideration for the 
 promise sued on. 
 
 (d) Lindley on Partnership, 1. 508. 
 
 (e) Hall v. Bainbridge, 1 Man. & Gr. 42. 
 
 222 
 
PARTIES CAN NOT ENABLE STRANGERS TO SUE. 201 
 
 -directors for the time being of a company (a), by the purser for the 
 time being of a cost-book company (6), by the managers of a 
 mutual marine insurance society (c), have all been made in turn, 
 and have all been made in vain." It will not be necessary to dwell 
 -on any instance other than the last. In Gray v. Pearson the 
 reasons against allowing the right of action are well given in the 
 judgment of Willes, J. : — 
 
 "I am of opinion that this action can not be maintained, and for the 
 simple reason, — a reason not applicable merely to the procedure of this 
 •country, but one affecting all sound procedure, — that the proper person 
 to bring an action is the person whose right has been violated. Though 
 there are certain exceptions to the general rule, for instance in the case 
 of agents, auctioneers, or factors, these exceptions are in truth more ap- 
 parent than real. The persons who are suing here are mere agents, 
 managers of an assurance association of which they are not members; 
 and they are suing for premiums alleged to have become payable by the 
 defendant in respect of policies effected by the plaintiffs for him, and for 
 hit- share and contributions to losses and damages paid by them to other 
 members of the association whose vessels have been lost or damaged. The 
 bare statement of the facts is enough to show that the action can not be 
 maintained. 
 
 " It is in effect an attempt to substitute a person as a nominal plaintiff 
 m lieu of the persons whose rights have been violated." 
 
 Another variety of the same device is a document purporting to 
 "be a negotiable instrument payable to the treasurer or other officer 
 for the time being of a society. Such a document, whether in the 
 form of a promissory note (d) or of a bill of exchange (e), is invalid, 
 for the payee must be a person capable of being ascertained at the 
 time u\ muking the note or accepting the bil[. There is no doubt 
 that a contract in any other form to pay the ^treasurer for [201 
 the time being would be equally inoperative to give any right of 
 
 (a) Phelps v. Lyle, 10 A. & E. 113. 
 
 (6) Hybert v. Parker, 4 G. B. N. S. 209; 27 L. J. C. P. 120, where Wales, J., 
 suggested that it was trenching upon the prerogative of the Crown to make a 
 ■ new species of corporation sole for the purpose of bringing actions: 
 
 (c) Gray v. Pearson, L. K. 5 0. P. 568 : in the earlier case of Gray v. Gibson, 
 L E. 2C. P. 120, a similar action succeeded, the question of the manager's 
 right to sue not being raised. 
 
 (d) Storm v. Stirling, 3 E. & B. 832; 23 L. J. Q. B. 298; in Ex. Ch. nom. 
 Cowie v. Stirling, 6 E. & B. 333 ; 25 L. J. Q. B. 335. 
 
 (e) Yates v. Nash, 8 0. B. N.S. 681 ; 29 L. J. C. P. 306. 
 
 223 
 
201 CHAP. V. PEESONS AFFECTED BY CONTRACT. 
 
 action to the person who should from, time to time fill the office (a)_ 
 But a promissory note payable to "the trustees of the W. chapel 
 or their treasurer for the time being" is good: for it is considered 
 that the trustees existing at the date of the note are the persons- 
 ascertained as payees, and that the treasurer is named only as their 
 agent to receive payment (b). 
 
 Contrivances of this kind have not, so far as we know, come be- 
 fore our courts of equity; indeed their chief object has been to 
 avoid the necessity of suing in equity. The Bules of the Supreme- 
 Court, following the former practice of the Court of Chancery,, 
 now provide that " where there are numerous persons having the 
 same interest in one action, one or more of such parties may sue 
 or be sued, or may be authorized by the Court to defend in such 
 action, on behalf or for the benefit of all parties so interested " (c);. 
 but a person not really interested can not be put forward as a rep- 
 resentative (d). ' 
 
 Part 4: — Assignment of Contracts. 
 
 Rule 4. We now come to the fourth rule, which we have ex- 
 pressed thus : — 
 
 Persons other than the creditor may become entitled by representa- 
 tion or assignment to stand in the creditor's place and to exercise his 
 rights under the contract. 
 
 We need say nothing here about the right of personal repre- 
 sentatives to enforce the contracts of the person they represent, 
 except that it has been recognized from the earliest period of the- 
 history of our present system of law (e). With regard to assign- 
 ment, the benefit of a contract can not be assigned (except by the- 
 Crown) at common law so as to enable the assignee to sue in his- 
 
 (a) Pigott v. Thompson, 3 Bos. & P. 147 ; [Warren v. Stearns, 19 Pick. 
 73, 80.] 
 
 (ft) Holmes v. Jaques, L. R. 1 Q. B. 376; [cp. Davis v. Garr, 6 N. T 124;; 
 Bogers v. Gibson, 15 Ind. 218 ; Pisher v. Ellis, 3 Pick. 321.] 
 
 (c) Order xvi.> r. 9. 
 
 (d) Except to represent a defendant heir-at-law or next of kin in the cases 
 provided for by Drd. xvi. r. 9a (June, 1876). Cp. as to shareholders' suits For- 
 rest s. Manchester, &c, Ry. Co., 4 D. P. J. 126; Bobson v. Dodds, 8Eq.301; 
 dist.Seaton v. Grant, 2 Ch. 459; Bloxam v. Metropolitan By. Co., 3 Ch. 337. 
 
 (e) Subject to some technical exceptions which have now disappeared : see 
 notes to "Wheatley v. Lane, 1 Wms. Saund. 240, sqq., and for early instances or 
 actions of debt brought by executors, T. B. 20 & 21 Ed. 1, pp. 304, 374. 
 
 224 
 
ASSIGNMENT OP CONTRACTS. 202 
 
 own name (a). The origin of the rule was attributed by Coke to 
 the " wisdom and policy of the founders of our law " in *dis- [202 
 couraging maintenance and litigation (6) : but there can be little 
 or no doubt that it was in truth a logical consequence of the prim- 
 itive view of a contract as creating a strictly personal obligation 
 between the creditor and the debtor (c). Anyhow, it has been 
 long established that the proper course at common law is for the 
 assignee to sue in the name of the assignor. It appears from the 
 Year Books that attempts were sometimes made to object to actions 
 of this kind on the ground of maintenance, but without success (<2). 
 The same rule is very distinctly stated by Gaius as prevailing in 
 the Eoman law (e). 
 
 In equity the right of the assignee to sue in his own name has 
 been recognized for some considerable time (/) ; it is perhaps im- 
 
 (a) Termes de la Ley, tit. Chose in Action. [" The United States may sue at 
 law in their name on » claim assigned to them :'' United States v. Buford, 3- 
 Peters, 12.] 
 
 (6) Lampet's ca., 10 Co. liep. 48a. For exposition of the rule in detail see? 
 Dicey on Parties, 115. 
 
 (c) Spence, Eq. Jurisd. of Chy. 2. 850. An examination of the earlier au- 
 thorities has been to confirm this view. The rule is assumed as unquestionable^ 
 and there is no trace of Coke's reason for it. The objection of maintenance? 
 was set up, not against the assignee, suing in his own name, which was never 
 attempted so far as we can find, but against his suing in the name of the as- 
 signor : see following note. 
 
 (d) T. B. 9 H. 6. 64, pi. 17; 34 H. 6. 30, pi. 15; 15 H. 7. 2, pi. 3; Brooke, 
 Abr., 1406. See Appendix B. to this chapter. 
 
 (e) Gai. 2. 38, 39. Quod mini ab aliquo debetur, id si velim tibi deberi, nulla 
 eorum modo, quibus res corporales ad alium transferuntur, id efficere possum ; sed 
 opus est, ut iubente me tu ab eo stipuleris ; quae res effieit ut a me liberetur et 
 incipiat tibi teneri. quae dicitur novatio obligationis. Sine hac vero novation* 
 non poteris tuo nomine agere, sed debes ex persona mea quasi cognitor aut pro- 
 curator meus experin. In later times the transferee of a debt was enabled to> 
 sue by utllis actio in his own name. This seems to have been first introduced 
 only for the benefit of the purchaser of an inheritance, D. 2. 14. de pactis, 16 
 pr. C. 4. 39. de hered. vel act. vend. 1, 2, 4-6, and afterwards extended to all 
 cases, C. eod. tit. 7, 9. See too C. 4. 10- de obi. et act. 1, 2, C. 4. 15. quando» 
 fiscus, 5 Arndts, Lehrbuch der Pandekten, g 254. 
 
 (/) ["A court of equity will not entertain a bill by the assignee of a strictly 
 legal right, merely upon the ground that he can not bring an action at law ini 
 his own name, nor unless it appears that the assignor prohibits and prevents 
 such an action from being brought in his name, or that an action so brought 
 would not afford the assignee an adequate remedy :" Walker v. Brooks, 125. 
 15 225 
 
*2Wi CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 possible to say precisely for how long, but at any rate since the 
 rules of equity have been at all systematic (a). 
 
 The Supreme Court of Judicature Act, 1873, (s. 25, sub -s. 6), 
 creates a legal right modeled on the equitable right, but confined 
 to cases where the assignment is absolute, and by writing under 
 the hand of the assignor, and express notice in writing has been 
 given to the debtor. 
 
 203] *These restrictions are but partly known in equity. By 
 the Statute of Frauds (29 Car. 2, c. 3, s. 9) " all grants and assign- 
 ments of any trust or confidence" must be> in writing signed by 
 the assignor, and by s. 7 equitable interests in land-must be created 
 by writing. S. 9 does not at all events require writing for the 
 creation in the first instance by the legal owner or creditor of an 
 ■equitable interest in personal property or a chose in action ; and it 
 may be argued perhaps that its operation is altogether confined to 
 interests in land by the context in which it occurs. The writer is 
 not aware of any decision upon it (6). 
 
 As for the notice to the debtor, the rule of equity is that it must 
 be express but need not be in writing (c). 
 
 There remain, therefore^ a great number of cases where the right 
 is purely equitable, although the enlarged jurisdiction of every 
 branch of the Supreme Court makes the distinction less material 
 than formerly. 
 
 Several partial exceptions to the common law rule have been 
 made at different times by modern statutes, on which, however, it 
 seems unnecessary to dwell. The more important instances are 
 these : — 
 
 East India bonds, 51 Geo. 3, c. 64, s. 4, which makes them negotiable.' 
 
 Mortgage debentures issued by land companies under the Mortgage 
 Debenture Act 1865, 28 & 29 Vict. c. 78, amended by 33 & 34 Vict. c. 20. 
 
 Policies of life assurance : 30 & 31 Vict. c. 144. 
 
 Mass. 241; Carter v. Insurance Co., 1 Johns. Oh. 463; Adair v. Winchester, 7 
 G. &J. 114; Mose-leyo. Boush, 4 Band. 392; Smiley v. Bell, Mart. & Tei-g. 
 378 ; Bank v. Muinford, 2 Barb. Ch. 596 ; Leake on Cont., 2d' ed. 1169.] 
 
 (a) There is a curious case in Y. B. 37 H. 6. 13, pi. 3, from which it seems 
 that equitable assignments were then unknown (see p. 155 above). For collec- 
 tions of authorities on the modern doctrine of equitable assignments in gen- 
 eral, see Lewin on Trusts, 575, sqq.; Leake, 601; ^d. ed. 1165, sqq.] and notes 
 ;to Kyall v. Kowles in 2 Wh. & T. L. C, 
 
 (b) See 1 Sanders on Uses (5th ed.)-, 343. 
 
 (c) He Tichener, 35 Be»y. 317. 
 
 226 
 
ASSIGNMENT OP CONTRACTS: NOTICE. 204 
 
 Policies of marine assurance: 31 & 32 Vict. c. 86. 
 
 Things in action of companie3 (Companies Act 1862, s. 157) and bank- 
 Tupts (Bankruptcy Act. 1869, s. Ill) assigned in pursuance of those acts 
 respectively. As to the effect of registration under the present acts of 
 previously existing companies, etc., in transferring the right to sue on the 
 -contracts made by the company or its officers in its former state, see the 
 Companies Act, 1862, s. 193, Lindley 1. 507, note (u). 
 
 Local authorities (including any authority having power to levy a rate) 
 may issue transferable debentures and debenture stock under the Local 
 Loans Act, 1875, 38 & 39 Vict. c. 83. 
 
 In ordinary cases rights under a contract derived by assignment 
 *from the original creditor are subject, as already stated, to [204 
 the following limitations: — 
 
 1st. Title by assignment is not complete as against the debtor 
 without notice to the debtor, and a debtor who performs his con- 
 tract to the original creditor without notice of any assignment by 
 the creditor is thereby discharged. 
 
 2d. The debtor is entitled as against the representatives, and, 
 unless a contrary intention appears by the original contract [this 
 modification has been introduced, as we shall see, by a series of 
 •quite recent decisions] as against the assignees of the creditor, to 
 the benefit of any defense which he might have had against the 
 creditor himself. 
 
 1. As to notice to the debtor. Notice is not necessary to com- 
 plete the assignee's equitable right as against the original creditor 
 himself, or as against his representatives, including assignees in 
 bankruptcy (a) ; but the claims of competing assignees or incum- 
 brancers rank as between themselves not according to the order in 
 date of the assignments, but according to the dates at which they 
 have respectively given notice to the debtor. This was decided by 
 the cases of Dearie v. Hall and Loveridge v. Cooper (b), the prin- 
 ciple of which was soon afterwards affirmed by the House of 
 Lords (c). . The same rule prevails in the modern civil law (<2) and 
 
 (a) Burn v. Carvalho, 4 M. & Cr. 690; [Muir v. Schenk, 3 Hill, 228 ; Bishop 
 -w. Holeomb, 10 Conn, 444; Conway v. Cutting, 51 N. H. 407, 409; Wood v. 
 Partridge, H Mass. 488, 491; Thayer v. Daniels, 113 Mass. 129.] 
 
 (b) 3 Buss. 1, 38, 48. 
 
 (c) Foster v. Cockerell, 3 CI. & P. 456 ;, [Spain v. Hamilton's Adm'r., 1 Wall. 
 ■604, 623-624; Judson v. Corcoran, 17 How. 612; Murdoch v. Dickson, 21 M.o. 
 138; Clodfeltera. Cox, 1 Sneed, 330; In re Preshfleld's Trusts, 11 Ch. D. 198. 
 But see contra, Muir v. Schenk, 3 Hill, 228; White v, Wiley, 14 Ind. 496; 
 Thayer v. Daniels, 1.13 Mass. 129, 131.] 
 
 (a) See Pothier, Contrat de Vente, gg 560, 554 sqq. 
 
 K ' 227 
 
205 CHAP, y, PERSONS AFKECTED By CONTRACT. 
 
 has been adopted from, it in the Scottish law (/?) ; and the true- 
 reason of it, though not made very prominent in the decisions- 
 which establish the rule in England, is the protection of the debtor! 
 He has a right to look to the person with whom he made his con- 
 tract to accept performance of it, and to give him a discharge, un- 
 less and until he is distinctly informed that he is to look to some 
 other person. According to the original strict conception of con- 
 tract (" a ne considerer que la subtilite du droit " as Pothier (6) ex- 
 pressed it), his creditor or his creditor's assignee can not even 
 require him to do this, any more than in the converse but substan- 
 tially different case a debtor can require his creditor to accept 
 205] another person's liability, and his assent *raust be expressed 
 by a novation (as to which see p. 189 above). Such was in fact 
 the old Boman law, as is shown by the passage already cited from- 
 G-aius. By the modern practice the novation is dispensed with; 
 and the debtor becomes bound to the assignee of whom he has no- 
 tice. But he can not be bound by any other assignment, though 
 prior in time, of which he knows nothing. He is free if he has 
 fulfilled his obligation to the original creditor without notice of any 
 assignment; he is equally free if he fulfills it to the assignee of 
 whose right he is first informed, not knowing either of any prior- 
 assignment by the original creditor or of any subsequent assign- 
 ment by the new creditor (c). It is enough for the completion of 
 the assignee's title " if notice be given to the person by whom pay- 
 ment of the assigned debt is to be made, whether that person is- 
 himself liable or is merely charged with the duty of making the 
 payment " (d!) e.g. as an agent entrusted with a particular fund. 
 Notice not given by the assignee may be sufficient, if shown to be 
 such as a reasonable man would act upon (e). All this doctrine of 
 
 (.«) Erskine Inst. Bk. 3, Tit. 5. (b) Oontrat de Vente, § 550. 
 
 (c) Seeper Willes, J. L. R. 5 C. P. at p. 594. : Per Knight Bruce, L. J. 
 Stocks v. Dobson, 4 D. M. G. 11, 17; [Heermans v. Ellsworth, 64 N. Y. 159 ; 
 Heed v. Marble, 10 Paige, 409; Brindle v. Mdlvaine, 9 S. & R. 74; Leahi «. 
 Wugdale's Adra'rx., 34 Mo. 99; Clark v. Boyd, 6 T. B. Mon. 293; Gaullagher v.. 
 Caldwell, 22 Pai.St. 300; Trustees v. Wheeler, 61 N. Y. 88, 120 sqq.] 
 
 (d) Per Lord Selborne, C, Addison v. Cox, 8 Ch. 76, 79. 
 
 (e) Lloyd v. Banks, '3 Ch. 488. [See Tritt's Adm'r. v. Cornell's Adm'r., 31 
 Pa. St. 228; Anderson v. Van Alen, 12 Johns. 343; Guthrie v. Bashline, 25 Pa. 
 St. 80. 
 
 Notice given on Sunday is good : Crozier v. Shants, 43 Vt. 478. Notice given* 
 to one of two trustees is sufficient : Pardee v. Piatt, 20 Conn. 395.] 
 228 
 
ASSIGNMENT OE CONTRACTS : NOTICE. 206 
 
 motice has no application to interests in land (a) : but, subject to 
 that exception, it applies to rights created by trust as well as to 
 "those created by contract: the beneficial interest being- treated for 
 this purpose exactly as if it were a debt due from the trustee. In 
 the case of trusts a difficulty may arise from a change of trustees : 
 for it may happen that a fund is transferred to a new set of trus- 
 tees without any notice of an assignment which has been duly no- 
 tified to their predecessors, and that notice is given to the new 
 trustees of some other assignment. It is still unsettled which of 
 the assignees is entitled to priority in such a case : but it has been 
 decided that the new trustees can not be made personally liable for 
 -having acted on the second assignment (b). 
 
 *Ths rules as to notice apply to dealings with future or [206 
 contingent as well as with present and liquidated claims. " An 
 insurance office might lend money upon a policy of iusurance to a 
 ■person who had insured his life, notwithstanding any previous as- 
 signment by him of the policy of which no notice had been given 
 to them (c). 
 
 2. As to the debtor's rights against assignees. The rule laid down 
 in the second explanation is often expressed in the maxim " The 
 assignee of an equity'is bound by all the equities affecting it." This, 
 however, includes another rule founded on a distinct principle, 
 which is that no transaction purporting to give a beneficial interest 
 apart from legal ownership (d) can confer on the person who takes 
 or is intended to take such an interest any better right than be- 
 longed to the person professing to give it him. If A. contracts 
 with B. to give B. something which he has already contracted to 
 ..give C, then C.'s claim to have the thing must prevail over B.'s, 
 whether B. knew of the prior contract with C. or not. And if B. 
 
 (a) Although the exception is fully established, there is good authority for 
 ^thinking it not very reasonable: see Lewin, 581. Its effect is that equitable 
 interests in land stand on a different footing from personal rights : see this re- 
 lied on as the ground of the exception, Jones v. Jones, 8 Sim. 644. But on tho 
 
 ■ other hand their liability to be defeated by a purchase of the legal estate for 
 value without notice shows that they have not the nature of real ownership. 
 
 (b) Phipps v. Lovegrove, 16 Eq. 80; see p. 90 as to the precautions to be 
 taken by an assignee of an equitable interest who wishes to be perfectly safe. 
 
 (c) lb. at p. 88. 
 
 (rf) Certain dicta in Sharpies v. Adams, ' 32 Beav. 213, 216, and Maxfield «. 
 Burton, 17 Eq. 15, 19, go even farther; but it seems at least doubtful whether 
 ithev can be supported. 
 
 ' 229 
 
207 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 makes over his right to D., D. will have no better right than B. hadt 
 (a). And this applies not only to absolute but to partial interests 
 (such as equitable charges on property) to the extent to which they 
 may affect the property dealt with. Again, by a slightly different, 
 application of the same principle, a creditor of A. who becomes en- 
 titled by operation of law to appropriate any beneficial interest of" 
 A.'s (whether an equitable interest in property or a right of action)- 
 for the satisfaction of his debt can claim nothing more than such 
 interest as A. actually had, and he can gain no priority by notice- 
 to A.'s trustee or debtor even in cases where he might have gained- 
 it if A. had made an express and unqualified assignment to him (6). 
 But we are not concerned here with the development of these doc^ 
 207] tribes, and we return to the other sense of the *general maxim. 
 In that sense it is used in such judicial expressions as the following; 
 
 " If there is one rule more perfectly established in a court of equity 
 than another, it is this, that whoever takes an assignment of a chose in 
 action takes it subject to all the equities of the person who made the asr 
 signment" (c). 
 
 " It is a rule and principle of this Court, and of every Court, I believe,, 
 that where there is a chose in action, whether it is a debt, or an obliga- 
 tion, or a trust fund, and it is assigned, the person who holds the debt or 
 
 (a) See Pinkett it. Wright, 2 Ha. 120, affd. nom. Murray v. Pinkett, 12 CI. & 
 P. 784 ; Pord v. White, 16 Beav. 120 ; Clacks. Holland, 19 Beav. 262. [" The 
 rule is not simply that .the assignee takes subject to the equities between the- 
 original parties, though that is found law. It goes farther than this, and de- 
 clares that the purchaser of a ehose in action must always abide the case of the- 
 person from whom he buys. The reason of the rule is, that the holder of a 
 chose in action can not alienate any thing but the beneficial interest he pos- 
 sesses. It is a question of power or capacity to transfer to another, and that- 
 capacity is to be exactly measured by his own rights ;" per Dwight, C, in 
 Trustees v. Wheeler, 61 N. Y. 88, 105.] 
 
 (6) Pickering v. Ilfracombe By. Co., L. K. 3 C. P. 235, overruling virtually 
 Watts v. Porter, 3 E. & B. 743 ; 23 L. J. Q. B. 345 ; see Crow v. Bobinson, L.. 
 K.. 3 C. P. 264; judgment of Erie, J. (diss.) in Watts v. Porter ; [Smith v. Ster- 
 ritt, 24 Mo. 260 ; Noble v. Thompson Oil Co., 79 Pa. St. 354, 367 j McDonald v. 
 Kneeland, 5 Minn. 352; Dix •». Cobb, 4 Mass. 508; Northam v. Cartwright, 10- 
 E. I. 19; Stockton v. Hall, 1 Hardin, 160; Whitten v. Little, Ga. Dec, pt. 2, 
 99; Littlefield v. Smith, 17 Me. 327; Copeland v. Manton, 22 O. S. 398. 
 Contra: Cahoon u. Morgan, 38 Vt. 234; Ward v. Morrison, 25 Vt. 593; Van- 
 buskirk v. Insurance Co., 14 Conn. 141 ; Clodfelter v. Cox, 1 Sneed, 330.] 
 
 (c) Lord St. Leonards, Mangles, v. Dixon, 3 H. L. C. 702, 731; [Faull v. 
 Tinsman, 36 Pa. St. 108; Warren v. Whittaker, 6 Mich. 133 ; Clute v. Bobison r 
 2 Johns. 595, 612; Ingraham v. Disbrough, 47 N. Y. 421; Davis v. Bechstein,. 
 69 N. Y. 440.] 
 230 
 
ASSIGNMENTS SUBJECT TO EQUITY. 20T 
 
 obligation, or has undertaken to hold the trust fund, has as against, the 
 assignee exactly the same equities that he would have as against the 
 assignor" (a). 
 
 This is in fact the same principle which is applied by courts of 
 common law as well as of equity for the protection of person* 
 who contract with agents not known to them at the time to be- 
 agents (7>). "What is meant by this special use of the term, 
 "equities " will be best shown by illustration. A debt is due from 
 B. to A., but there is also a debt due from A. to B. which B. might 
 set off in an action by A. In this state of things A. assigns the 
 first debt to G. without telling him of the set-off. B. is entitled to- 
 the set-off as against C. (c). Again, B. has contracted to pay a 
 sum of money to A., but the contract is voidable on the ground of 
 fraud or misrepresentation. A. assigns the contract to C, who 
 does not know the circumstances that render it voidable. B. may 
 avoid the contract as against C. (d). Again, in a somewhat less- 
 simple case, there is a liquidated debt from B. to A. and a current 
 account between them on which the balance is against A. A. as- 
 signs the debt to C. who knows nothing of the account. B. may 
 set off as against C. the balance whieh is due on the current ac- 
 
 («) James, L. J. (sitting as V.-C), Phipps v. Lovegrove, 16 Eq. 80, 88. 
 (6) See more on this in the Appendix A to this chapter. 
 
 (c) Cavendish v. Geaves, 24 Beav. 163, 173, where the doctrine i3 fully ex- 
 pounded: the rules laid down by the M. K. are given at length by Mr. Lewin, 
 Lewin on Tr. 577 ; [Sanborn v. Little, 3 N. H. 539 ; Hooper v. JBrundage, 22 Me, 
 460; Metzgarrc. Metzgar, 1 Rawle, 227; Wood v. Mayor, 73 N. Y. 556; Hall v. 
 Hickman, 2 Del. Ch. 318]. As to set-off accruing after notice of assignment, Ste- 
 phens v. Venables, 30 Beav. 625 ; Watson v. Mid Wales Ry. Co., L. K.2 C. P. 593. 
 [In an action by the assignee of a chose in action the defendant can not set off 
 a debt existing in his favor against the assignor at the time of the assignment, 
 but maturing afterwards : Puller v. Steiglitz, 27 O. S. 355 ; Beckwith v. Bank, 
 9 N. Y. 211 ; Myers v. Davis, 22 N. Y. 489 ; Martin v. Kuntzmiiller, 37 N. Y. 
 396; Pvoberts v. Carter, 38 N. Y. 107; Graham v. Tilford, 1 Met. (Ky ) 112; 
 and see Adams v. Rodarmel, 19 Ind. 339 ; Pollett v. Buyer, 4 O. S. 586; Walker 
 v. McKay, 2 Met. (Ky.) 294; cp. Williams v. Helme, 1 Dev. Eq. 151 ; Railroad 
 Co. v. Rhodes, 8 Ala. 206. He can set off a claim against the assignor, which 
 he has acquired after the assignment and before notice thereof: MeCabe v. 
 Grey, 20 Cal. 509 ; Adams v. Leavens, 20 Conn. 73 ; Bank v. Balliet, 8 W. & 8. 
 311 ; Millor v. Bomberger, 76 Pa. St. 78. But not one acquired after notice of 
 the assignment : Lake v. Brown, 7 How. (Miss.) 661 ; Weeks v. Hunt, 6 Vt. 15; 
 Crayton v. Clark, 11 Ala. 787; Goodwin v. Cunningham, 12 Mass. 193.] 
 
 (d) Graham v. Johnson, 8 Eq. 36 ; [Holbrook v. Burt, 22 Pick. 546.] 
 
 231 
 
208 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 count when he deceives notice of the assignment, but not any bal- 
 ance which becomes due afterwards (a). 
 
 208] *But it is open to the contracting parties to exclude the 
 operation of this rule if they think fit by making it a term of the 
 original contract that the debtor shall not sot up against an as- 
 signee of the contract any counter claim which he may have 
 against the original creditor. This, is established by the decision 
 of the Court of Appeal in Chancery in Ex parte Asiatic Banking 
 Corporation, the facts of which have already been stated for an- 
 other aspect of the case (b). 
 
 Two alternative grounds were given for the decision in favor of 
 the claim of the Asiatic Banking Corporation under the letter 
 of credit. . One, which we have already noticed, was that the letter 
 was a general proposal, and that there was a complete contract 
 with any one who accepted it by advancing money on the faith 
 of it. The other was that, assuming the original contract to be 
 only with Dickson, Tatham- & Co., to whom the letter was given, 
 yet the takers of bills negotiated under the letter were assignees 
 of the contract, and it appeared to have been the intention of the 
 original parties that the equities which might be available for the 
 bank against Dickson, Tatham & Co., should not be available 
 against assignees. 
 
 " Generally speaking (said the L. J. Cairns) a chose, in action assign- 
 able only iu equity must be assigned subject to the equities existing be- 
 tween the original parties to the contract; but this is a rule which must 
 yield when it appears from the nature or terms of the contract that it 
 must have been intended to be assignable free from and unaffected by 
 such equities." 
 
 Where assignees of a chose in action are enabled by statute to 
 sue at law, similar consequences may be produced by way of estop- 
 pel (c) : which really comes to the same thing, the doctrine of 
 estoppel being a more technical and definite expression of the 
 same principle. 
 
 The principle thus laid down has been followed out in several 
 later decisions on the effect of transferable debentures issued by 
 companies. The question whether the holder of such a debenture 
 takes it free from equities is to be determined by the original in- 
 tention of the parties. 
 
 ( a) Cavendish v. Geaves, 24 Beav. 163. 
 (6) 2 Gb. 391 ; p. 184; supra. ■ 
 
 (c) "Webb v. Heme Bay Commissioners, L. R. 5 Q. B. 642. 
 2VL 
 
ASSIGNMENTS FREE FROM EQUITIES. 209 
 
 *The form of the instrument is of course material, but the [209 
 .general tenor is*to be looked to rather than the words denoting to 
 •whom payment will be made; these can not be relied on as a sole 
 -or conclusive test. 
 
 Making a debenture payable to the holder or bearer does not 
 necessarily mean more than that the issuing company wili not re- 
 quire the holder who presents the instrument for payment to prove 
 his title, especially if the object of the debenture is on the face of 
 it to secure a specific debt (a). But an antecedent agreement to 
 give debentures in such a form is evidence that they were meant to 
 be assignable free from equities (b) ; and debentures payable to 
 bearer without naming any one as payee in the first instance are 
 jprima facie so assignable (c) ; so again, if the document resembles 
 a negotiable instrument rather than a common money bond or de- 
 benture in its general form (d). 
 
 Even when there is nothing on the face of the instrument to 
 show the special intention of the parties, the issuer can not set up 
 -equities against the assignee, if the instrument was issued for the 
 purpose of raising money on it (e). The general circumstances at- 
 tending the original contract — e.g., the issue of a number of de- 
 bentures to a creditor instead of giving a single bond or covenant 
 for the whole amount due — may likewise be important. Moreover, 
 apart from any contract with the original creditor, the issuing com- 
 pany may be estopped from setting up equities against assignees by 
 subsequent recognition of their title (/). 
 
 (a) Financial Corporation's claim, 3 Ch. 355, 360. ["Contracts are not nec- 
 -essarily negotiable because by their terms they inure to the benefit of the 
 bearer," Railroad Co. v. Howard, 7 Wall. 392; but bonds made payable to- 
 bearer, issued by corporations, are treated in this country as negotiable secur-. 
 ities transferable free from equities; Mercer County v. Hackett, 1 Wall. 83,95; 
 supra, p. 116, note (J).] 
 
 (b) Ex parte New Zealand Banking Corporation, 3 Ch. 154. 
 
 (c) Ex parte Colborne & Strawbridge, 11 Eq. 478, which can not now be taken 
 -as warranting any thing beyond the statement in the text, ep. Crouch v. Credit 
 
 Fonder, L. R. 8 Q. B. 374, 385. 
 
 (d) Ex parte City Bank, 3 Ch. 758. 
 
 (e) Dickson v. Swansea Vale Ry. Co., L. R. 4 Q. B. 44. Graham v. Johnson, 
 8 Eq. 36, seems not consistent with this. 
 
 (/) Higgs v. Northern Assam Tea Co., L. R. 4 Ex. 387; Ex parte Universal 
 Life Assurance Co, 10 Eq. 458 (on same facts); Ex parte Chorley, IT Eq. 157; 
 -cp. Re Bahia & San Francisco Ry. Co., L. R. 3 Q. B. 584. Qu. can Athenaeum 
 
 233 
 
#10 CHAP. V. PERSONS AFFECTED BV CONTRACT. 
 
 The rule extends to an order for the delivery of goods as well as~ 
 to debentures or. other documents of title to a/lebt payable in 
 money (a). 
 
 210] *It may be doubted whether this doctrine can apply in a 
 case where the original contract is not. merely subject to a cross- 
 claim but voidable. For the agreement that the contract shall be- 
 assignable free from equities is itself part of the contract, and one 
 would think it should have no greater validity than the rest. A 
 collateral contract for a distinct consideration might be another- 
 raatter ; but the notion of making it a term of the contract itself 
 that one shall not exercise any right of rescinding it that may af- 
 terwards be discovered seems to involve the same kind of fallacy 
 as the sovereign power in a state assuming to make its own acts- 
 irrevocable. Nor does it make any difference, so long as we adhere 
 to the general rules of contract, that the stipulation is in favor not- 
 of the original creditor but only of his assignees (b). However,, 
 the point has not been distinctly raised in any of the decided cases. 
 In Graham v. Johnson (c), where the contract was originally void- 
 able (qu., if hot altogether void, the plaintiff having executed a 
 bond under the impression that he was accepting or indorsing a 
 bill of exchange) (d), an assignee of the bond as well as the obligee 
 was restrained from enforcing the bond : but the decision was rested 
 on the somewhat unsatisfactory ground that, although the instru- 
 ment was given for the purpose of money being raised upon it, 
 there was no intention expressed on the face of it that it should be 
 assignable free from equities. 
 
 However, if the. contract were not enforceable as between the or- 
 iginal parties only by reason of their being in pari delicto, as not. 
 having complied with statutory requirements or the like, an as- 
 signee for value without notice of the original defect will at all 
 •events have a good title by estoppel (e). 
 
 Lile Assurance Soc. v. Pooley, 3 Do G. & J. 294, be reconciled with these cases?' 
 It seems not : Brunton's claim, 19 Eq. 302, 312. 
 
 («) Merchant Banking Cp. .of London v. Phoenix Bessemer Steel Co., 5 Ch,. 
 D. 205. 
 
 (b) In principle it is the same as the case put in the Digest (50. 17, de reg... 
 itiri-i, 23) " npn vajere si convenerit, ne dolus praestetur." [See Jaqua v. Mont- 
 gomery, 33 Ind. 36.] 
 
 (c) 8 Eq. 36. 
 
 ■(d) The evidence was conflicting, but the Court took this view of the facts ;: 
 Mte p. 48. . . 
 
 (c) See Webb v. Heme Bay Commissioners, L. E. 5 Q. B. 642. 
 
 234: 
 
NEGOTIABLE INSTRUMENTS. 211. 
 
 The'transferable debentures, the effect of which came in question 
 in the cases we have just reviewed, were no doubt intended to be 
 equivalent to negotiable instruments, and there have been dicta in 
 the Court of Chancery favoring the view that they were such in 
 fact (a). But a later decision of the *Court of Queen's [211 
 Bench shows that this intention can not be fully carried out. The 
 debtor may contract in such a way as to alter or abandon his own 
 rights as against assignees of the contract; but lie can not alter or 
 abandon the rights of subsequent assignees, and therefore can not 
 enable an intermediate transferor having no title to give a good 
 title to his transferee (6). 
 
 This marks the extreme limit of the extension which can be- 
 given to the power of transferring rights under a contract consist- 
 ently with the general rules of law. 
 
 We are now in a position to see the nature of the difficulties- 
 which make the mere assignment of a contract inadequate for the 
 requirements of commerce, and to meet which negotiable instru- 
 ments have been introduced. 
 
 The assignee of a contract is under two inconveniences (c). The 
 first is that he may be met with any defense which would have- 
 been good against his assignor. This, we have seen, may to a 
 considerable extent if not all together be obviated by the agree- 
 ment of the original contracting parties. 
 
 The second is that he must prove his own title and that of the 
 intermediate assignees, if any; and for this purpose he must inquire 
 into the title of his immediate assignor. This can be in part, but 
 only in part, provided against by agreement of the parties. 
 
 It is quite competent for them to stipulate that as between them- 
 selves payment to the holder of a particular document shall be a 
 good discharge; but such a stipulation will neither affect the rights 
 of intermediate assignees nor enable the holder to compel payment 
 without proving his title. Parties can not set up a market overt 
 for contractual rights. 
 
 The complete solution of the problem, for which the ordinary 
 law of contract is inadequate, is attained by the law merchant (<f) 
 in the following manner: — 
 
 (<z) See especially Ex parte City Bank, 3 Ch. 758, 
 
 (6) Cvi-uoh v. Credit Foneier of England, L. E. 8 Q..B. 374, 
 
 (c) Cp. Savigny, Obi. § 02.. 
 
 (d) Extended to promissory notes by statute: 3 & 4 Anne, c. 8 (in Eev- 
 Stat.) m. 1-3. 
 
 235 
 
'212 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 (i) The absolute benefit of the contract is attached to the owner- 
 ship of the document which according to ordinary rules would be 
 •only evidence of the contract. 
 
 212] *(ii) The proof of ownership is then facilitated by pre- 
 scribing a mode of transfer which makes the instrument itself an 
 authentic record of the successive transfers: this is the case with 
 instruments transferable by indorsement. 
 
 (iii) Finally this proof is dispensed with by presuming the bona 
 fide possessor of, the instrument to be the true owner: this is the 
 -case with instruments transferable by delivery, which are negotiable 
 in the fullest sense of the word. 
 
 The result is that the contract is completely embodied (a) for all 
 practical purposes in the instrument which is the -symbol of the 
 contract; and both the right under the contract and the property 
 in the instrument are treated in a manner quite at variance with 
 the general principles of contract and ownership. We give refer- 
 ences to a few passages where specimens will be found of the 
 positive terms in which the privileges, of bona fide holders of 
 negotiable instruments have been repeatedly asserted by the highest 
 judicial authority (6). 
 
 The narrower doctrine which for a time prevailed, requiring a cer- 
 tain measure of caution on the part of the holder, is now completely 
 exploded. Nothing short of actual knowledge of the facts affect- 
 ing his transferor's title will defeat the holder's right (c). 
 
 Moreover there is no discrepance between common law and 
 -equity in this matter. Equity has interfered in certain cases of 
 forgery and fraud to restrain negotiation; but at law no title to sue 
 
 (a) " Verkorperung der Obligation," Savigny. 
 
 (J) See per Byles, J., Swan v. N. B. Australasian Co. in Ex. Ch. 2 H. & C. 
 184 ; 31 L. J. Ex. 425 ; per Lord Campbell, Brandao v. Barnett, 12 CI. & P. 
 105 ; opinion of Supreme Court U. S., delivered by Story, J., Swift v. Tyson, 16 
 Pet. 1, 15. 
 
 (c) Goodman v. Harvey, 4 A. & E. 876; Raphael ■». Bank of England, 17 C. 
 B. 161, 175 ; 25 L. J. C. P. 33 ; [Goodman v. Simoiids, 20 How. 343 ; Murray v. 
 Lardner, 2 Wall. 110; Hotehkiss v. Banks, 21 Wall. 354; Bank v. Hooper, 47 
 Md. 88 ; Matthews e. Poythress, 4 Ga. 287 ; Hamilton v. Vougbt, 34 N\ J. L. 
 187; Edwards v, Thomas, 66 Mo. 468, 483; Shreves „. Allen, 79 111. 555; 
 Craft's Appeal, 42 Conn. 146; Johnson v. Way, 27 O. S. 374; Phelan ■». Moss, 
 ■67 Pa. St. 59; Welsh v. Sage, 47 N. Y. 143 ; Smith v. Livingston,- 111 Mass. 
 -342; Lake v. Reed, 29 la. 258 ; Parrell v. Lovett, 68 Me, 326 ; Insurance Co. v. 
 ..Hachfield, 73 N. Y. 226.] 
 236 
 
Negotiable instruments. 213- 
 
 on the instrument can bo made through a forgery (a) ; and " the 
 cases of fraud where a bill has been ordered to be given up are 
 confined to those where the possession, but for the fraud, would be 
 that of the plaintiff in equity" (b). The rights of bona fide holders 
 for value are as fully protected in equity as at common law, and 
 against such a holder equity will not interfere (<?). 
 
 *The most frequent examples of negotiable instruments are [213 
 bills of exchange and promissory notes. Their exceptional quali- 
 ties are concisely stated in the recent case of Crouch v. Credit Fon- 
 cier of England (d) which has been already referred to: — 
 
 " Bills of exchange and promissory notes, whether payable to order or 
 to bearer, are by the law merchant negotiable in both senses of the 
 word. The person who, by a genuine indorsement, or, where it is paya- 
 ble to bearer, by a delivery, becomes holder, may sue in his own name 
 on the contract, and if he is a bona fide holder for value he has a good 
 title notwithstanding any defect of title in the party (whether indorser 
 or deliverer) from whom he took it." 
 
 We may here notice the positions contained in the judgment of 
 the Court, which in fact show the limits beyond which the special' 
 law of English negotiable instruments can not be extended. 
 
 1. It is extremely doubtful whether the seal of a corporation can 
 be treated as equivalent to signature for the purpose of making an 
 instrument under it negotiable at common law (e). 
 
 2. A bond containing a contract not merely to pay the principal 
 but to cause the bonds to be drawn for payment in a specified man- 
 
 (a) The bona fide holder of an instrument with a forged indorsement may be- 
 exposed to considerable hardship. See Bobbett v. Pinkett, 1 Ex. D. 368; 
 [Buckley v. Bank, 35 N. J. L. 400; Carpenter v. Bank, 123 Mass. 66; Dick v. 
 Leverich, 11. La. 573.; Shaffer «. McKee, 19 O. S. 526; Colson v. Arnot, 57 N.~ 
 T. 253 ; Graves v. Bank, 17 N. Y. 205.] 
 
 (6) Jones u Lane, 3 Y. & 0. Ex. in Eq. 281, 293. 
 
 (e) Thiedemann v. Goldschmidt, 1 D. P. J. 4. 
 
 (rf) L. E. 8 Q. B. 374. 
 
 (e) But if a corporation is expressly enabled by statute to issue promissory" 
 notes under seal they may be sued on as ordinary promissory notes : Slark v. 
 Highgate Archway Co., 5 Taunt. 792, and in any case the addition of the seal 
 will not prevent an instrument from being a good bill or note if it is also 
 signed by an agent or agents for the company, so that it would be good without 
 the seal, which may perhaps be regarded as an ear-mark or memorandum made 
 by the company or its agents for their own convenience : see Halford v. Cam- 
 eron's Coalbrook, &c, Co., 16 Q. B. 442 ; 20 L. J. Q. B. 160 ; Aggs v. Nicholson, 
 1 H. &. N. 165; 25 L. J. Ex. 348 ; Balfour v.- Ernest, 4 C. B. N. S. 601 ; 28 L. J„ 
 C. P. 170; Dutton v. Marsh, L. K. 6 Q. B. 361. [See supra, p. 116, note (fi).] 
 
 237 
 
"214 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 ner can not be negotiable, since it violates the genex-al rule that the 
 ■contract to pay must be unconditional. (It must also be a contract 
 to pay money or to deliver another negotiable security represent- 
 ing money (a) : therefore a promise in writing to deliver 1000 tons 
 of iron to the bearer is not negotiable and gives no right of action , 
 to the possessor) (b). 
 
 3. Mere private agreement or particular custom can not be 
 admitted as part of the law merchant so as to introduce new 
 kinds of negotiable instruments. But the fact that a universal 
 214] ^mercantile usage is modern is no reason against its being 
 judicially recognized as part of the law merchant. The notion that 
 general usage is insufficient merely because it is not ancient is 
 founded on the erroneous assumption that the law merchant is to 
 be treated as fixed and invariable (c). 
 
 The bonds of foreign governments issued abroad and treated in 
 the English market as. negotiable instruments are recognized as such 
 by law (d). So is the provisional script issued in England by the 
 agent of a foreign government as preparatory to giving definitive 
 bonds (e). Such bonds or scrip, and other foreign instruments 
 negotiable by the law of the country where they are made, may 
 be recognized as negotiable by our Courts though they do not sat- 
 isfy all the conditions of an English negotiable instrument (/). 
 
 From what was said in Goodwin v. Eobarts (cf) in the House of 
 Lords it seems that where the holder of an instrument purport- 
 ing on the face of it to be negotiable, and in fact usually dealt 
 with as such, intrusts it to a broker or agent who deals with it in 
 the market where such usage prevails, he is estopped from denying 
 
 (a) Goodwin v. Eobarts, Ex. Ch., L. B. 10 Ex. 337, in H. L. 1 App. Ca. 476. 
 
 (b) Dixon v. Bovill, 3 Macq. ] , and see Byles on Bills, Ch. 7 ; [1 Daniel on Neg. 
 Inst., I 59 sqq.J Such a contract may, however, be made assignable free from 
 
 -equities: Merchant Banking Co. of London ■». Phoanix Bessemer Steel Co., 5 
 Ch. D. 205. 
 
 (c) Goodwin v. Eobarts, supra, overruling Crouch v. Cre'dit Foncier on this, 
 4>oint; Eumball v. Metropolitan Bank, 2 Q. B. D. 194. 
 
 (d) Gorgier v. Mieville, 3 B. & Q. 4'5. 
 
 (e) Goodwin v. Bobarts, L. B. 10 Ex. 76, affd. in Ex. Ch., lb. 337, in H. L. 1 
 App. Ca. 476. 
 
 ( /) See Crouch v. Credit Poncier, L. B. 8 Q. B. at pp. 384-5 ; Goodwin v. 
 .Eobarts, 1 App. Ca. at pp. 494-5. 
 (0) 1 App. Ca. 486, 489, 493, 497. 
 238 
 
TRANSFERABLE SHARES. 215 
 
 its negotiable quality as against any one who in good faith and for 
 "value takes it from such broker or agent (a.) 
 
 It is also to be observed that an instrument which has been ne- 
 gotiable may cease to be so in various waySj namely — 
 
 Payment by the person ultimately liable (b). 
 
 .Restrictive indorsement (c). 
 
 Crossing with the words "not negotiable," under the Crossed 
 Cheques Act, 1876, 39 & 40 Vict. c. 81. A person tuking a cheque 
 -so crossed has not and can not givo a better title than the person 
 from whom he took it: s. 12. 
 
 To a certain extent, in the case of bills payable to order, indorse- 
 ment when overdue, which makes the indorsee's rights subject to 
 what are called equities attaching to the bill itself, e.g. an agreement 
 between the original parties to the bill thut in *certain [215 
 ■events the acceptor shall not be held liable, but not to collateral 
 -equities such as set-off (d). & 
 
 It has here been our business only to note in a very general way 
 how the law of negotiable instruments oversteps the ordinary law of 
 ■contract, and within what limits it is applied. It seems, therefore, 
 unadvisable to enter further upon the special characteristics of the 
 contracts involved in such instruments; but it may not be useless 
 to annex references to some modern cases in which the nature of 
 the contracts undertaken in a bill of exchange by the drawer, ac- 
 ceptor, and indorsers respectively, has been judicially defined or 
 discussed (e) ; the bill of exchange being that type of negotiable 
 
 (a) ["A bona fide purchaser, for value, of a non-negotiable chose in action, 
 from one upon whom the owner has, by assignment, conferred the apparent 
 absolute ownership, when the purchase is made upon the faith of such apparent 
 ownership, obtains a valid title as against the real owner, who is estopped from 
 asserting title thereto: Coombes v. Chandler, 33 O.S. 178; Jarvis v. Eogers, 13 
 Mass. 105; McNeil v. Bank, 46 N. Y. 325; Cochran v. Stewart, 21 Minn. 435, 
 440; Cowdrey v. Vandenburgh, 101 U. S. 572; Moore v. Bank, 55 N. T. 41 ; 
 dist. Bank v. Livingston, 74 N. T. 223.J 
 
 (b) Lazarus v. Cowie, 3 Q. B. 464. As to the possibility of suing on a bill 
 after it has been paid by some other person, see Cook o. Lister, 13 C- B. N. S. 
 594; 32 L. J. C. P. 121. 
 
 (c) 1 Sm. L. C. 479 [7th Am. ed. 815]. 
 
 (d) See ex parte. Swan, 6 Lq. 344, 359, where the authorities are discussed. 
 [Wilkinson?;. Jeffers, 30 Ga. 153; Trafford v. Hall, 7 K. I. 104; Britton v. 
 Bishop, 11 Vt..70; Bichardsu. Laily, 34 la. 427; Arnot v. "Woodburn, 35 Mo. 
 
 . 99 ; Long v. Shawn, 7,5 Pa. St. 128.] ., 
 
 (e) As to contracts of acceptor and drawer, see Jones v. Broadhurst, 9 C. B. 
 
 239 
 
'I 
 
 216 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 instrument which is most frequent, most important, and most fully 
 developed. 
 
 We ha\;e purposely left to the last the consideration of certain 
 important classes of contracts which maybe roughly described as 
 involving the transfer of duties as well as of rights. This happens 
 in the cases 
 
 (A) Of transferable shares in partnerships and companies. 
 
 (B) Of obligations (a) attached to ownerships or interests in 
 property. 
 
 A. The contract of partnership generally involves personal con- 
 fidence, and is therefore of a strictly personal character. But, as 
 Mr. Justice Lindley tells us, "if partners choose to agree that any 
 of them shall be at liberty to introduce any other person into the 
 partnership, there is no reason why they should riot; nor why, 
 having so agreed, they should not be bound by the agreement " (b). 
 At common law the number of persons engaged in a contract of 
 partnership does not make any difference in the nature or validity 
 of the contract, hence it follows that if in a partnership of two- 
 or three the share of. a partner may be transferred on terms 
 agreed on by the original partners, there is nothing at common law 
 to prevent the same arrangement from being made in the case of a 
 larger partnership, however numerous the members may be ; in 
 216] other words, unincorporated ^companies with transferable- 
 shares are not unlawful at common law. This is worked out by 
 Mr. Justice Lindley in another part of his book, where he shows 
 by an ingenious and convincing analysis that such a conclusion is- 
 demanded by principle, and by an examination of decided cases 
 that it is consistent with authority (c). "Those who form such 
 partnerships [i.e., partnerships whether small or large, in which 
 shares are transferable] and those who join them after they are- 
 formed, assent to become partners with any one who is willing to- 
 comply with, certain conditions " (rf). 
 
 173, 181 ; Lebel o. Tucker, L. R. 3 Q. B. 77, 84. As to the contract of an in 
 dorser, lb. at p, 83 j Denton v. Peters, L. E. 6 Q. B. 475, 477. 
 
 (a) We use the word here in its wide sense so as to denote the benefit or 
 burden of a contract, or both, according to the nature of the case. 
 
 (J) Lindley, 1. 719. 
 
 (c) Lindley, 1. 196-201 ; [Parson on Ptshp. Ch. 18.] 
 
 (d>j lb. 1. 719 ; [Parsons on Ptshp., *pp. 161-162. In the mining partner- 
 ships of California a sale of his interest by a partner to a stranger does not dia- 
 240 
 
TRANSFERABLE SHARES. 21T 
 
 At first sight this may seem to involve the anomaly of a floating- 
 contract between all the members of .the partnership for the time 
 being, who by the nature of the case are unascertained persons 
 when we look to any future time (a). It is somewhat curious that, 
 this line of , objection does not, appear to have been distinctly taken? 
 in any of the cases in which the legality of such undertakings was. 
 discussed ; the history of the Bubble Act and the decisions on it 
 rather goes to show that it was not supposed that the kind of part- 
 nership contracts forbidden by that Act might be already invalid 
 at common law on such grounds as here suggested. However, 
 there is really no need to assume any special exception from th& 
 ordinary rules of contract, and therefore no ground of objection. 
 In addition to Mr. Justice Lindley's reasons another has been given 
 by Lord Westbury, which is very differently expressed, but is con- 
 sistent enough with them and may be taken as supplemental to 
 them. The transfer of a share in a partnership at. common law is 
 strictly not the transfer of the outgoing partner's contract to the 
 incoming partner, but the formation of a new contract. "By the* 
 ordinary law of partnership as it existed previously to" the Com- 
 panies Acts "a partner could not transfer to another person his- 
 share in the partnership. Even if he attempted to do so with the 
 consent of the other partners, it would not be a transfer of his- 
 share, it would in effect be the creation of a new partnership " (b). 
 This, therefore, is to be added to the cases in which we have al- 
 ready found apparent anomalies to vanish on closer examination. 
 
 Notwithstanding the theoretical legality of unincorporated 
 *companies, there does not appear to be any very satisfac- [21? 
 tory way of enforcing either the claims of the company against an 
 individual member (c), or those of an individual member against 
 the company (rf). But the power of forming such companies is so 
 much cut short by the Companies Act, 1862, which renders (with 
 a few exceptions) unincorporated and unprivileged (e) partnerships 
 
 solve the partnership, but the stranger by his purchase becomes a partner: Tay- 
 lor v. Castle, 42 Cal. 367.] 
 
 (a) Cp. per Abbott, C. J., in Josephs v. Pebrer, 3 B. & C. 639, 643. 
 
 (6) Webb v. Wiffln, L. E. 5 H. L. 711, 727. 
 
 (c) We have seen (supra, p. 199) that they can not empower an officer to sua 
 on behalf of the association. 
 
 (d) See Lyon v. Haynes, 5 M. & Gr. 504; Lindley, 2. 929. 
 
 (e) i.e., such as but for the Act would have been mere partnerships at common 
 law. 
 
 16 241 
 
218 CHAP. II. PERSONS AFFECTED BY CONTRACT. 
 
 of more than twenty (a) persons positively illegal, that questions 
 of this kind are not likely to have much practical importance in 
 future. In like manner the transfer of shares in companies as 
 well as their original formation is almost entirely governed by 
 modern statutes. 
 
 B. Obligations ex contractu attached to ownership or interests in 
 properly are of several kinds. With regard to those attached to 
 estates and interests in land, which alone offer any-great matter 
 for observation, the discussion of them in detail is usually 'and 
 •conveniently treated as belonging to the law of real property, 
 We shall have to dwell on them, however, so far as to point out 
 the existence of a real conflict between common law and equity as 
 to the right way of dealing with burdens imposed on the use of 
 land by contract. 
 
 A general statement in a summary form will serve both to 
 shorten our subsequent remarks and to make them better under- 
 stood. 
 
 Obligations attached to ownership and interests in property. 
 I. Goods. 
 
 A contract can not be annexed to goods so as to follow the property in 
 the goods either at C. L. (b) or in Equity (c). 
 
 By statute 18 & 19 Vict. c. Ill, the indorsement of a bill of lading op- 
 erates as a legal transfer of the contract, if and whenever by the law 
 merchant it operates as a transfer of the property in the goods. 
 218] *II. Land(rf). 
 
 a. Relations between landlord and tenant on demise. 
 Burden : 
 of lessee's covenants As to an existing thing parcel 
 
 of the demise, assign ees are bound 
 whether named or not. 
 
 (a) Ten in the case of banking: Companies Act, 1862, s. 4, see Lindley, 1. 
 170, 203 ; as to transfer of shares, lb. 721-727; as to termination of sharehold- 
 ers' liability, lb. 476-481. 
 
 (b) 3d resolution in Spencer's ca.', 1 Sm. L. G. 60 [7th Am. ed. 138]; Splidt 
 v. Bowles, 10 East, 279. Leake on Contracts, 624 [2d ed. 1224]. " In general 
 contracts do not by the law of England run with goods :" Blackburn on Sale, 
 ■276. 
 
 (c) De Mattos v. Gibson, 4 De G. & J. 276, 295. . 
 
 (d) On this generally see Dart V. & P. 2. 764, sqq, ; 3d Keport of B. P. Com, 
 mission, Dav. Oonv. 1. 122 (4th ed.) ; and above all the notes to Spencer's oa. in 
 1 Sm. L. C. : and also as to covenants in leases the notes to Thursby v. Plant, 1 
 ¥ms. Saund. 278-281, 299, 305. 
 
 242 
 
OBLIGATIONS ATTACHED TO PROPERTY. 219 
 
 As to something to be newly 
 made on the premises, assignees 
 are bound only if named (a). 
 of lessor's covenants runs with the reversion. 
 
 (32 Hen. 8. c. 34.) 
 Benefit : 
 
 of lessee's covenants runs with the reversion. 
 
 (32 Hen. 8. c. 34.) 
 But the stat.'applies only to demises under seal (b), and includes (by con- 
 struction in Spencer's ca.) only such covenants as touch and concern the 
 ■thing demised (c). 
 
 of lessor's covenants runs with the tenancy. 
 
 Note. 
 
 (i) The lessee may safely pay rent (<£) to his lessor so long as he has no 
 notice of any grant over of the reversion : 4 & 5 Anne c. 3 [in Eev. Stat.: 
 al. 4 Ann. c. 16] which is in fact a declaration of the C. L.: see per 
 Willes, J., L. R. 5 C. P. 594. 
 
 (ii) The lessee may still be sued on his express covenants (though not 
 in debt for rent) after an assignment of the term (e). 
 
 (iii) The doctrine concerning a reversion in a term of years is the same 
 as concerning a freehold reversion (/). 
 /3. Mortgage debts. 
 
 The transfer of a mortgage security operates in equity as a transfer of 
 the debt (g). Notice to the mortgagor is not needed *to make [219 
 
 (a) As to this distinction see 1 Sm. L. 0. 74-77; [7th Am. ed. 145-148, 220; 
 see Musury v. Southworth, 9 O. S. 340; Tallman v. Coffin, 4 N. Y. 134; Cronin 
 ■u. Watkins, 1 Tenn. Ch. 119.] Whether a covenant not to assign without li- 
 cense " extends to a thing in esse parcel of the demise," so as to hind assignees 
 though not named, qucere : lb. 76. 
 
 (b) e.g., Smith v. Bggington, L. Ii. 9 C. P. 145. 
 
 (c) Por the meaning of this see 1 Sm. L. C. 72 [7th Am. ed. 144 ; Masury v. 
 .Southworth, 9 O. S. 340; Norman v. Wells, 17 Wend. 136; Norfleet v. Crom- 
 well, 70 N. C. 634, 640.] 
 
 (d) In the case of the lessee's covenants other than for payment of rent, an 
 assignee of the reversion is not hound to give notice of the assignment to the 
 lessee as a condition precedent to enforcing his rights : Scaltoek u. Harston, 1 
 C. P. D. 106. 
 
 (e) 1 Sm. L. C. 77 [7th Am. ed. 148, 218]; 1 Wms. Saund. 298; [Ghegari v. 
 Young, 23. Pa. St. 18 ; Harmony Lodge v. White, 30 O. S. 569 ; 1 Washb. on 
 Real Prop. 493, 504.] 
 
 (/) 1 Sm. L. C. 70 [7th Am. ed. 142-143.] 
 
 (g) This is one of the cases in which the equitable transfer of a debt is not 
 made = a legal transfer by the Judicature Act, 1873. In practice an express 
 -assignment of the debt is always added. 
 
 243 
 
219 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 !he assignment valid ; but without such notice the assignee is bound by~ 
 the state of the accounts between mortgagor and mortgagee (a). 
 
 y. Rent charges and annuities imposed on land independently of ten_ 
 ancy or occupation (6). 
 
 An agreement to grant an annuity charged on land implies an agree- 
 ment to give a personal covenant for payment (c) : but by a somewhat 
 curious distinction the burden of a covenant to pay a rent charge does 
 not run with the land charged, nor does the benefit of it run with the 
 rent (d). * 
 
 <J. Other covenants not between landlord and tenant, relating to land. 
 and entered into with the owner of it. 
 
 The benefit runs with the covenantee's estate so-that an assignee can 
 sue at common law. It is immaterial whether the covenantor was the- 
 person who conveyed the land to the covenantee or a stranger (e). The- 
 usual vendor's covenants for title come under this head. 
 
 £. The like covenants entered into by the owner. 
 
 The burden of such covenants appears on the whole not to run with the- 
 the land in any case at common law (/). But where a right or easement 
 affecting land — such as a right to get minerals free from the ordinary duty 
 of not letting down the surface — is granted subject to the duty of paying" 
 compensation for damage done to the land by the exercise of the right, 
 
 (a) Jones v. Gibbons, 9 Ves. 407, 411; Matthews v. Wallwyn, 4 Ves. 118, 
 126. 
 
 (b) These must be regarded as arising from contract (we do not speak of" 
 rents or services incident to tenure) : the treatment of rent-charges in English 
 law as real rights or incorporeal hereditaments seems arbitrary. For a real, 
 right is the power of exercising some limited part of the rights of ownership,, 
 and is quite distinct from the right to receive a fixed payment without the im- 
 mediate power of doing any act of ownership on the property on which the- 
 payment is secured. 
 
 (c) Bower v. Cooper, 2 Ha. 408. 
 
 (d) 1 Wms. Saund. 303; 1 8m. L. C. 77; [7th Am. ed. 152, sqq. As to the- 
 rule in the United States, see lb. 179-190; 2 Washb. Eeal Prop. 282.] 
 
 (e) Contra Sugd. V. & P. 584-5. But see 1 Sm. L. C. 80 [7th Am. ed. 150, 
 168 sqq.]; Dart. 778; Dav. Conv. 1. 137. The cases from the Tear Books re- 
 lied on by Lord St. Leonards (Pakenham's ca. H. 42. E. 3. 3, pi. 14; Home's- 
 M. 2 H. 4. 6, pi. 25) seem to show only that it was once thought doubtful 
 whether the assignee could sue without being also heir of the original covenan- 
 tee, tjee also, 11 Amer. Law Rev. 658, 659. 
 
 (/) 3d report of R. P. Commissioners, in 1 Dav. Conv. Contra, Cooke v. Chil- 
 cott, 3 Ch. D. 694. [See further contra. Bronson v. Coffin, 108 Mass. 175; Sav- 
 age v. Mason, 3 Cush. 500; Burbank v. Pillsbury, 48 N. H. 475 ; Huston v. Bail- 
 road Co., 21 O. S. 235; Wooliscroft v. Norton, 16 "Wis. 198; Easter v. Railroad* 
 Co., 14 O. S. 48; Kellogg v. Robinson, 6 Vt. 276.] 
 244 
 
COVENANTS RUNNING WITH LAND. 220 
 
 there the duty of paying compensation runs at law with the benefit of 
 -the grant. Here, however, the correct view seems to be that the right 
 itself is a qualified one — viz., to let down the surface, etc., paying compen- 
 sation and not otherwise (a). 
 
 The burden does run with the land in Equity, i.e., a court of *equity [220 
 will enforce the covenant against assignees who have actual or construct- 
 ive (b) notice of it : and when the covenant is for the benefit of other 
 land (as in practice is commonly the case) the benefit generally though 
 not always run's with that other land (c). 
 
 Explanation. Let us call the land on the use of which a restriction is 
 imposed by covenant the quasi- servient tenement, and the land for whose 
 benefit it is imposed the quasi-dominant tenement. Now restrictive cove- 
 nants may be entered into 
 
 (1) By a vendor as to the use of other land retained or simultaneously 
 •sold, for the benefit of the land sold by him: 
 
 In this case the burden runs with the quasi-servient tenement, and the 
 "benefit also runs with the quasi-dominant tenement. 
 
 (2) By a purchaser as to the use of the land purchased by him, for the 
 benefit of other land retained or simultaneously sold by the vendor: 
 
 In this case the burden runs with the quasi-servient tenement, and the 
 ■benefit may run with the quasi-dominant tenement when such is the in- 
 tention of the parties, and especially when a portion of land is divided 
 .into several tenements and dealt with according to a prescribed plan (d.) 
 All these rights and liabilities being purely equitable are like all other 
 equitable right and liabilities subject to the rule that purchase for value 
 without notice is an absolute defense. 
 
 The only points which seem to call for more notice here are the 
 • doctrines as to bills of lading (I) and restrictive covenants as to 
 the use of land (II. e). 
 
 As to (I) it is to be borne in mind that bills of lading are not 
 properly negotiable instruments, though they may be called so " in a 
 
 (a) Aspden v. Seddon (C. A.), 1 Ex. D. 496, 509. 
 
 (b) Wilson v. Hart, 1 Ch. 463. 
 
 (c) [Barrow v. Eichardson, 8 Paige, 351 ; Parker v. Nightingale, 6 Allen, 341; 
 Whitney v. Railroad Co., 11 Gray, 359; Kirkpatrick v. Peshine, 24 N. J. Eq. 
 206; W infield v. Henning, 21 N. J. Eq. 188; Green v. Creighton, 7 E. I. 1; 
 Burbank v. Pillsbury, 48 N. H. 475, 482 ; Gilbert v. Peteler, 38 N. T. 165 ; St. 
 Andrews Church's Appeal, 67 Pa. St. 512; Stines v. Dorman, 25 O. S. 580.] 
 
 (rf) Keates v. Lyon, 4 Gh. 218, and other cases there considered. Harrison v. 
 Good, 11 Eq. 338; [Eenals v. Cowlishaw, 9 Ch.D. 125; see Taite v. Gosling, 11 
 Ch. D. 273, where a lessee was held entitled to the benefit of the covenants as 
 an assign.] 
 
 245 
 
221 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 limited sense as against stoppage in transitu only " (a). As far as the- 
 law merchant goes the bill of lading only represents the goods, and 
 does not enable any one who gets it into his hands to give a better 
 title than his own to a transferee ; " the transfer of the symbol does 
 not operate more than a transfer of what is represented " (b). 
 And the whole effect of the statute [18 & 19 Vict., c. .111] is to at- 
 tach the rights and liabilities of the shipper's contract not to the 
 221] symbol, but to the property in the goods *themselves (c) : 
 the right to sue on the contract contained in the bill of lading is- 
 made to "follow the property in the goods therein specified; that 
 is to say, the legal title to the goods as against the indorser " (d). 
 
 As to (II. e) we have to explain the discrepance between com- 
 mon law and equity, which is a real and serious one'. The theory 
 of the common law is to the following effect. The normal opera- 
 tion of a contract, as we have already had occasion to say, is to- 
 limit or cut short in some way the contracting party's control over- 
 his own actions. Among other kinds of actions the exercise of 
 rights of ownership over a particular portion of property may be 
 thus limited. So far, then, an owner " may bind himself by [per- 
 sonal] covenant to allow any right he pleases over his property" (e) 
 or to deal with it in any way not unlawful or against public pol- 
 icy (/). But if it be sought to annex such an obligation to the- 
 property itself, this is prima facie a considerable departure from the- 
 ordinary rules of contract, and to be justified only by cl ( ear con- 
 venience. How then does the matter stand in this respect? An. 
 
 (a) Per "VVilles, J. Puentes v. Montis, L. K. 3 C. P. at p. 276; [Dows v. Perrin, 
 16 N. Y. 325.] 
 
 (i) Gurneyu. Behrend, 3 E. & B. 622, 633; 23 L. J. Q. B. 265; [Stollen- 
 ■weickv. Thatcher, 115 Mass. 224; Emery's Sons v. Bank, 25 O. S. 360, 368; 
 Dows v. Perrin, 16 N. Y. 325 ; Nat. Bk. of Commerces. Mchts. Nat. Bank, 91 
 U. S. 92; Tison v. Howard, 57 Ga. 410; Voss v. Robertson, 46 Ala. 483; Em- 
 pire Transportation Co. v. Steele, 70 Pa. St, 188 ; Strauss v. Wessel, 30 O. S.. 
 211 ; Shaw v. Bailroad Co., 101 U. S. 557, 565. 
 
 (c) Pox v. Nott, 6 H. & N. 630, 636 ; 30 L. J. Ex. 259 ; Smurthwaite v. Wil- 
 kins, 11 C. B. N. S. 842, 850; 31 L. J. C. P. 214. 
 
 (d) The Freedom, L. E. 3 P. C. 594, 599. [Under the reformed procedure 
 the transferee of a hill of lading may hring an action thereon hi his own name 
 against the carrier : Bank v. Union K. & T. Co., 69 N. Y. 373.] 
 
 (e) Hill v. Tupper, 2 H. & 0, 121, 127; 32 L. J. Ex. 217. 
 
 (/) It is not unlawful for a landowner to let all his land lie waste; but a cov- 
 enant to do so would probably be invalid. 
 246 
 
COVENANTS RUNNING WITH LAND. 222 
 
 obligation attached to property in this manner ceases to be only a 
 burden on the freedom of the contracting party's individual action, 
 and becomes practically a burden on the freedom o.' ownership, 
 Sow the extent to which the law regards such burdens as conven- 
 ient is already defined. Certain well-known kinds of permanent 
 burdens are imposed by law, or may be imposed by the act of the 
 owner, on the use of land, for the permanent benefit of other land : 
 these, and these only, are recognized as being necessary for the- 
 ordinary convenience of mankind, and new kinds can not be ad- 
 mitted. And this principle, it may bo observed, is not peculiar to* 
 the law of England (a). Basements ami other real rights in re' 
 aliena can not therefore be extended at the arbitrary discretion of 
 private owners : " It is not competent for an *owner of land [222' 
 to render it subject to a new species of burden at his fancy or 
 caprice" (b). Still 1 less, of course, is it competent for people to 
 create new kinds of tenure or to attach to property incidents hith- 
 erto unknown to the law. But if it is not convenient or allowable 
 that these things should be done directly in the form of unheard 
 of easements or the like, neither can we hold it convenient or 
 allowable that they should be done indirectly in the form of obli- 
 gations created- by contract but annexed to ownership. If the 
 burden of restrictive covenants is to run with land, people can 
 practically create new easements and new kinds of tenure to an 
 indefinite extent. Such appears to be the view of legal policy on 
 which the common law doctrine rests: we say of legal policy, for 
 it would be a great mistake to treat the matter as one of merely 
 technical distinctions. 
 
 On the other hand the Court of Chancery has treated the ques- 
 tion differently, looking not so much at general policy as at indi- 
 vidual rights. An owner of land has bound himself by contract 
 to limit his use of that land in a particular manner: why should 
 his successors in title not be bound also, save in the case of a pur- 
 fa) Cp. Savigny Obi. 1.7: and for a singular coincidence in detail, D. 8. 3. d& 
 serv. praed. rust. 5, § 1, 6 -or. — Clayton v. Corby, 5 Q. B. 415; 14 L. J. Q_ 
 B. 364. 
 
 (J) Per Martin, B., Nuttall v. Bfacewell, L. JR. 2 Ex. 10; [B'ount v. Harvey, 
 6 Jones L. 186, 190; Masury v. Southworth, 9 O. S. 340, 348; Brewer v. Mar- 
 shall, 19 N. J. Eq. 537]; for the C. L. principles generally, see Ackroyd v. 
 Smith, 10 C. B. 104; 19 L. J. C. P. 315 ; Bailey v. Stephens, 12 C. B. N. S. 91 ; 
 31 L. J. C. P. 226. Bights of this kind are to be carefully distinguished from 
 those created by grants in gross; see per Willes, J., lb. 12 C. B N. S. 111. 
 
 247 ' 
 
223 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 chase for value without notice of the restriction? It is no hard- 
 ship on them ; for those who buy the land subject to the restriction 
 will pay so much the less, and the intention of the parties would 
 be frustrated if contracts of this kind were considered merely per- 
 sonal (a). The history of the doctrine is somewhat carious. Lord 
 Brougham adopted and enforced what we have called the common 
 Jaw theory in an elaborate judgment which seems to have been 
 intended to settle the question (b). But this judgment, though 
 treated as an authority in courts of law (c), has never been fol- 
 lowed in courts of equity. After being disregarded in two re- 
 '223] ported cases (rf) it was overruled by *Lord Gotten ham in 
 Tulk v. Moxhay (e), now the leading case on the subject. The 
 most important of the recent cases are Keates v. Lyon if) (where 
 the authorities are collected) and Harrison v. Good (g). This last 
 decided that when a vendor sells land in building lots and takes 
 restrictive covenants in identical terms from the several pur- 
 chasers, neither reserving any interest nor entering- into any cov- 
 enant himself, this will enable the owner for the time being of one 
 lot under the title thus created to enforce the covenant in equity 
 ■against the owner of another lot : nor can the vendor release the 
 •covenant to any purchaser or his successors in title without the 
 ■consent of all the rest. Thus the practical result is that a great 
 variety of restrictions on the use of land which could not be im- 
 posed by way of easement or the like may be imposed by way of 
 ■covenant for an indefinite length of time, purchases for value with- 
 out notice of the restriction being obviously not probable events. 
 Bo far as courts of equity have omitted to consider whether such a 
 result is consistent with the general principles of the law concerning 
 the tenure and enjoyment of property, perhaps it may be said that 
 the view they have taken is really the more technical of the two. 
 
 According to the doctrine of equity, the intention of the parties 
 is to fix an obligation to deal with the land in a particular manner 
 
 (a) [2 Wash, on Real Prop. 280-287.] 
 (4) Keppel v, Bailey, 2 M. & K. 527. 
 
 (c) Hill v. Tupper, 2 H. & 0. 121 ; 32 L. J. Ex. 217. 
 
 (d) "Whatman v. Gibson, 9 Sim. 196 (1838) ; Mann v. Stephens, 15 Sim. 377 
 (J 846); Keppel v. Bailey was in 1834. 
 
 (e) 2 Ph. 774. See per Pry, J., in Luker v. Dennis, 7 Ch. D. at p. 235. 
 (/) 4Ch. 218. 
 
 ifi) 11 Eq. 338; dist. Mater v. Hansard, 4 Ch. D. 718; [Eenals v. Cowlishaw, 
 9 Ch. D. 125; on appeal, 11 Ch. D.866; Dana v. Wentworth, 111 Mass. 291.] 
 248 
 
APPENDIX ON CONTRACTS OP AGENTS. 524 
 
 uot merely on the original contracting party, but on his successors 
 in title : then why not give effect to that intention ? The common 
 law doctrine admits that such is the intention, but refuses to give 
 effect to it because it tends to multiply undue restrictions on the 
 freedom of ownership, in contravention of the general spirit of the 
 law (a). But the real question involved in this conflict is in truth 
 of an economic rather than a legal kind : namely whether it is or 
 is not desirable that private persons should have the power of 
 dedicating land to be used in a particular way for an indefinite 
 time. Such questions of public economy can not be adequately 
 •dealt with by means of the *rules of ordinary private law [224 
 -concerning ownership and contract, and we need not be surprised if 
 the purely legal discussion of them fails to give satisfactory re- 
 sults (b). 
 
 APPENDIX A. (See p. 192 above.) 
 
 As to Parties to Actions on Contracts made with Agents. 
 
 A person who contracts or professes to contract on behalf of a. 
 principal may.be in any one of the following positions : 
 
 1. Agent having authority (whether at the time or by subsequent 
 -ratification) to bind his principal. 
 
 (a) See the observations of the Court of Ex. Ch. in Dennett v. Atherton, L. 
 R. 7 Q. B. 325. 
 
 (b) It is worth while to note that even if equity had-not refused to follow the 
 law on this subject, the sort of restrictions in question might-still be effectually 
 
 • created with little more trouble than at present. For instance, when it was de- 
 sired to impose such restrictions on a sale of land in lots, long leases at nominal 
 rents might be substituted for conveyances in fee simple. The restrictive cov- 
 -enants would then run with the reversion at law by the Stat, of Hen. 8, and 
 provision might be made for lessees enforcing them against one another in the 
 name of the reversioner. On the other hand, it is conceived that in the actual 
 .state of the law courts of equity have by no means abandoned a discretion, 
 which perhaps may yet be exercised with advantage, of refusing to enforce re- 
 strictive covenants when by lapse of time or change of circumstances they have 
 become obsolete, vexatious, or useless. Cp. Duke of Bedford v. Trustees of 
 British Museum, 2 M. & K. 552. [See observations of James, L. J., in German 
 «. Chapman, 7 Ch. D. at p. 279; Sm. L. C, 7th Am. ed. 178; Parker v. Night- 
 engale, 6 Allen, 341, 349; Renals v. Cowlishaw, 11 Ch. D. 866, at p. 868.] 
 
 249 
 
225 CHAP. V., PERSONS AFFECTED BY CONTRACT. 
 
 (A) known to be an agent 
 (a) for a principal named 
 
 (/}) for a principal not named. 
 
 (B) not known to be an agent (a). 
 
 2. Holding himself out as agent, but not having authority to- 
 bind his principal. 
 
 (A) where a principal is named 
 
 (a) who might be bound, but does not in fact authorize 
 
 or ratify the contract 
 (j?) who in law can not be bound. 
 
 (B) where the alleged principal is not named. 
 
 225] *1. In all cases where there is an agent dealing on behalf of 
 a real principal, the intention of the parties determines whether th& 
 agent, or the principal, or both, are to be liable on the contract and 
 entitled to enforce it. The question is to whom credit was really 
 given (b). And the general rules laid down on the subject furnish 
 only provisional answers, which may be displaced (subject to the 
 rules as to admissibility of evidence) by proof of a contrary in- 
 tention. 
 
 A. When the agent is known to be an agent, a contract is made, . 
 and knowingly made, by the other party with the principal, on 
 which the principal is the proper person to sue and be sued. 
 
 And when the principal is named at the time, then there is prima 
 facie no contract with the agent: but when the principal is not 
 named, then prima facie the agent, though known to be an agent, 
 docs bind himself personally, since the other party is not presumed 
 to give credit exclusively to an unknown principal (c). 
 
 (a) Since the cases of Calder v. Dobell, Fleets. Murton, and Hutchinson s.- 
 Tatham (see following notes) it may perhaps be considered that the true 
 leading distinction is whether the agent is known to be an agent or not, rather 
 than whether- the principal is named or not. 
 
 \b) Story on Agency, $ 279, sqq. 288 ; Thomson v. Davenport, 2 Sm. L. C. 364, 
 sqq. [7th Am. ed. 851]; Calder v. Dobell, L. K. 6 U. P. 486. 
 
 (a) But one who deals with an agent known to be such can not setoff against 
 the principal's claim a debt due to him from the agent. [Miller v. Lea, 85 
 !Md. 396; Parker v. Donaldson, 2 "W. & S. 9 ; Evans v. Wain, 71 Pa. St. G9. 
 Where one citizen of Massachusetts sold goods in that state to another, but 
 at the 1 same time disclosed to the purchaser the fact that the goods belonged 
 to a citizen of another state, without, however, disclosing the name of the 
 owner, a subsequent discharge of the purchaser under the insolvent laws of 
 Massachusetts was held to be no bar to an action by the owner for the price- 
 of the goods; Ilsley v. Merriam, 7 Cush. 242.] If he has employed an agent on. 
 250 
 
APPENDIX ON CONTRACTS OF AGENTS. 226- 
 
 But when the agent would not prima facie be a contracting party 
 in person he may become so in various ways. Thus he is person- 
 ally liable if he expressly undertakes to be so (a) : such an under- 
 taking may be inferred from the general construction of a contract 
 in writing, and is always inferred when the agent contracts in his 
 own name without qualification (&), though the principal is not the 
 less also liable, whether named at the time or not (c), or *if [226 
 he himself has an interest in the subject-matter of the contract, as 
 in the case of an auctioneer (d). And when the agent is dealing 
 in goods for a merchant resident abroad, it is held on the ground 
 of merchantile usage and convenience that without evidence of ex- 
 
 his own part, that agent's knowledge is for this purpose treated as the em- 
 ployer's own: and this even though the knowledge was not acquired in the- 
 course of the particular employment: Dresser v. Norwood, Ex. Ch., 17 C. B. N. 
 S. 466 ; 34 L. J. C. P. 48, revg. s. o. 14 C. B. N. 8. 574; 32 L. J. C. P. 201. The 
 Indian Contract Act has followed the view of the C. P. in preference to that 
 of Ex. Ch. See s. 229. And perhaps the question may deserve to be recon- 
 sidered if it ever comes before a court of last resort. [The view of the Ex. Ch. - 
 as to notice was approved in The Distilled Spirits, 11 Wall. 356; Hart v. Bank, - 
 33 Vt. 252, 270; but see Houseman v. Girard M. B. & L. Ass'n, 81 Pa. St. 256; 
 see 2 Kent, 630, note 1.] 
 
 (a) Story on Agency, \ 269 ; Smith, Merc. Law, 158; [Wilder v. Cowles, 100 
 Mass. 487, 491.] 
 
 (b) See Pairlie v. Fenton, L. B. 5 Ex. 169 ; Paice •«. Walker, lb. 173. The- 
 latter case, however, goes too far ; see note (a) next p. but one. [Nash v. Towne, 5 
 Wall. 689; Chandler v. Coe, 54 N. H. 561; Simonds v. Heard, 23 Pick. 120; 
 Mills v. Hunt, 20 Wend. 431 ; Babbett v. Young, 51 N. Y. 238.] 
 
 (c) Higgins v. Senior, 8 M. & W. 834: the law.there laid down goes to super- 
 add the liability of the agent, not to take away that of the principal; Calder «... 
 Dobell, L. R. 6 C. P. 486; [Story on Agency, § 160re; Bank v. Stein, 24 Md. 
 447; Turners. Lucas, 18 Gratt. 705, 716; Stowell v. Eldred, 39 Wis. 614; but- 
 as to the case where the principal is named, see Chandler v. Coe, 54 N. H. 501.],/ 
 As to when directors of companies are personally liable on documents signed 
 by them, see Lindley, 1. 364, and in addition to authorities there collected, Dut- 
 ton v. Marsh, L. It. 6 (J. B. 361. 
 
 (d) 2 Sm. L. C. 399 [7th Am. ed. 372; Hulse v. Young, 16 Johns. 1 ; 
 Minturn v. Main, 7 N. Y. 220. 'An auctioneer employed to sell real estate on 
 terms which contemplate the payment of a deposit into his hands by the buyer 
 at the time of the auction, and before the completion of the sale by the de- 
 livery of the deed, may sue for such deposit in his own name whenever an ac- 
 tion for it, separate from the other purchase-money, may become needful." 
 Thompson v. Kelly, 101 Mass. 291.] As to an auctioneer's personal liability 
 for non-delivery to a purchaser of goods bought at the auction ; Woolf'e v.- 
 Jlorne, 2 Q. B. D. 355 ; [Mills v. Hunt, 20 Wend. 431.] 
 
 — D 1 
 
"•226 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 press authority to that effect the commission agent can not pledge 
 his foreign constituent's credit, and therefore contracts in person (a). 
 When a deed is executed by an agent as such but purports to be 
 the deed of the agent and not of the principal, then the principal 
 
 ■ can not sue or be sued upon it at law, by reason of the technical 
 rule that those persons only can sue or be sued upon an indenture 
 who are named or described in it as parties (6). And it is also hold 
 in equity that a party who takes a deed under seal from an agent 
 in the agent's own name elects to charge the agent alone (c). A 
 
 ■. similar rule has been supposed to exist as to negotiable instruments: 
 but modern decisions seem to show that when an agent is in a 
 position to accept bills so as to bind his principal, the principal is 
 liable though the agent signs not in the principal's name but in his 
 own, or, it would appear, in any other name. It is the same as if 
 the principal had signed a wrong name with his own hand (d). 
 
 (a) Armstrong B.Stokes, L. E. 7 Q. B. 598, 605; Ace. Elbinger Actien- 
 Gesellschaft «. Olaye, L. R. 8 Q. B. 313, showing that the foreign principal can 
 not sue on the contract: Hutton v. Bulloch, lb. 331, affirmed in Ex. Ch. 9 Q. B. 
 672, that he can not be sued. [Such is not the rule in this country ; that the 
 principal is resident in a foreign country is only one circumstance entering into 
 the controlling question, " to whom was credit in fact given?" It is doubtful 
 if the different states of the Union can be considered as foreign to each other 
 within the operation of the rule; Oebricks v. Pord, 23 How. 49; Bray v. Ket- 
 tell, 1 Allen, 80; Kirkpatrick v. Stainer, 22 Wend. 244; Barry v. Page, 10 Gray, 
 
 .398; Taintore. Prendergast, 3 Hill, 72; Vawter v. Baker, 23 Ind. 63; New- 
 castle M'fg Co. v. Railroad Co., 1 Bob. La. 145; Merrick's Estate, 5 W. & S.9; 
 McKenzie v. Nevius, 22 Me. 138; Rogers v. March, 33 Me. 106; see 13 Am. L. 
 Kev. 663.] 
 
 (b) Lord Southampton v. Brown, 6 B. & C. 718; Beckham v. Drake, 9 M. & 
 W. at p. 95; [Briggs v. Partridge, 64 N. Y. 357; Hall v. Coctrell, 28 Ala. 507; 
 Huntington v. Knox, 7 Cush. 371, 374; Steele v. McElroy, 1 Sneed, 341; Story 
 
 -on Agency, \ 160; cp. Stowell v. Eldred, 39 Wis. 614.] 
 
 (c) Pickering's claim, 6 Ch. 525 ; [cp. Wharton on Agency, \ 283.] 
 
 (d) Lindus v. Bradwell, 5 C. B. 583; 17 L. J. C. P. 123; cp. Edmunds v. 
 Bushel], L. E. 1 Q. B. 97. [See May v. Hewitt, 33 Ala. 161 ; Bank v. Joy, 41 
 Me. 568 ; cp. Minard v. Mead, 7 Wend. 68. 
 
 In this country the rule is general that the legal liability of an unnamed 
 principal to be sued on » negotiable instrument ca n not bej jhown by parol 
 evidence; Puller v. Hooper, 3 Gray, 334, 341; Anderton v. Shoup, 17 O. S. 
 125; Williams v. Bobbins, 16 Gray, 77 ;' Brown v. Parker, 7 Allen, 337; Pentz 
 v. Stanton, 10 Wend. 271 ; Chandler v. Coe, 54 N. H. 561. 
 
 Though not liable on the instrument, the principal maybe liable for the value 
 252 
 
WHEN AGENT IS LIABLE. 227 
 
 Again, an agent who would otherwise be liable on the contract 
 made by him may exempt himself from liability by contracting in 
 such a form as makes it appear on the face of the contract that he 
 is contracting as agent only and not for himself as principal (a) : 
 but even then he may be treated as a contracting party and per- 
 sonally bound as well as his principal by the *custom of the [5227 
 particular trade in which he is dealing (b). Or he may limit his 
 liability by special stipulations, e.g. when a charter-party is exe- 
 cuted by an agent for an unnamed freighter, and the agent's signa- 
 ture is unqualified, but the charter-party contains a clause providing 
 that the agent's responsibility shall cease as soon as the cargo is 
 shipped (c). 
 
 It is also a rule that an agent for a government is not personally 
 a party to a contract made by him on behalf of such government 
 
 of the consideration where that inures to his benefit; Allen v. Coit, 6 Hill, 318; 
 Pentz v. Stanton, 10 "Wend. 271. 
 
 A person may become party to a negotiable instrument by any mark or 
 designation he chooses to adopt as a substitute for his name : Brown v. Bank, 6 
 Hill. 443 ; hence when a bill or note is signed with a name under which the de- 
 fendant has chosen to do business that may be shown to make him liable: Mel- 
 ledge v. Boston Iron Co., 5 Cush. 158; Fuller v. Hooper, 3 Gray, 334; Bank v.- 
 Monteath, 1 Den. 402; Pease v. Pease, 35 Conn. 131 ; Chandler v. Coe, 54 N. H. 
 561 ; Abbott v. McKinley, 2 Miles, 220. 
 
 Where this is also the name of the agent who signs the note " it requires very 
 clear and cogent proof to show that it was not designed to be his contract."' 
 Williams v. Bobbins, 16 Gray, 77, 82 ; Pease v. Pease, 35 Conn. 131, 148 ; cp. 
 Yorkshire Banking Co. o. Beatson, 5 C. P. D. 109.] 
 
 (a) "Words in the body of a document which amount to a personal contract 
 by the agent are not deprived of their effect by a qualified signature: Lennard 
 v. Robinson, 5 E. & B. 125 ; 24 L. J. Q. B. 275 ; and the description of him as 
 ao-ent in the body of the document may under special circumstances not be 
 enough to make him safe; Paice v. "Walker, L. R. 5 Ex. 173; [see Story on 
 Agency, \ 154, sqq.J see the remarks on Paice v. Walk' r in Gadd v. Houghton • 
 (C. A.), 1 Ex. D. 357, which decides that a contract "on account of" a named 
 principal conclusively discharges the agent. Paice v. Walker is nearly but not 
 quite overruled. [But see Hough v. Manzanos, 4 Ex. D. 104.] 
 
 (b) Humphrey v. Dale, 7 E. & B. 266; E. B. & E. 1004; 26 L. J. Q. B. 137 ; : 
 Fleet v. Murton, L. R. 7 Q. B. 126, 129; Hutchinson v. Tatham, L. R. 8 C. P. 
 482. [See Wharton on Agency, jS 499 sqq. ; § 730.] On the general question of 
 the construction of contracts made by brokers for their principals, see South- 
 well v. Bowditch (O. A.), 1 C. P. D. 374. 
 
 (c) Oglesby v. Yglesias, E. B. & E. 930; 27 L. J. Q. B. 356; Can- v. Jackson,- 
 7 Ex. 382. 
 
 253 
 
'228 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 by reason merely of having made the contract in his own name (a). 
 In some cases the agent, though prima facie not a party to the 
 contract as agent, can yet sue or be sued as principal on a contract 
 ■ '"which he has made as agent. These will be mentioned under an- 
 other head of this subject (6). 
 
 Where an undertaking is given in general terms, no promisee be- 
 ing named, to a person who obviously can not be a principal in the 
 matter, it may be inferred as a fact from the circumstances that 
 some other person interested is the real unnamed principal, and 
 such, person may recover on the contract (c). 
 
 B. When a party contracts with an agent whom he does not 
 know to be an agent, the undisclosed principal is generally bound 
 by the contract and entitled to enforce it, as well as the ageut with 
 whom the contract is made in the first instance (d). 
 
 But the limitations of this rule are important. In the first 
 place, it does not apply where an agent for an undisclosed principal 
 contracts in such terms as import that he is the real and only prin- 
 cipal. There the principal can not afterwards sue on the con- 
 tract (e). Much less, of course, could he do so if the nature of the 
 contract itself (for instance, partnership) were inconsistent with a 
 228] principal unknown at the time taking the *place of the ap- 
 parent contracting party. Likewise, "if the principal represents 
 
 (a) Macbeath v. Haldimand, 1 T. R. 172; cp. lb. 674; Gidley v. Lord Pal- 
 merston, 3 Bro. & Bing. 275 ; Story on Agency, § 302 sqq. ; [Parks v. Ross, 11 
 How. 362 ; Hodgson v. Dexter, 1 (Jr. 345 ; Brown v. Austin, 1 Mass. 208 ; Dawes 
 v. Jackson, 9 Mass.. 490; Walker v. Swartout, 12 Johns. 444; Ghent v. Adams, 
 2 Kelly, 214; Copes v. Matthews, 10 S. & M. 398; Osborne v. Kerr, 12 Wend. 
 179;. Enloe v. Hall, 1 Humph. 303; Tutt v. Hobbs, 17 Mo. 486; Hamarskold v. 
 Bull, 11 Rich. L. 493 ; Murray v. Carrothers, 1 Met. (Ky.) 71 ; Sheets v. Selden, 
 2 Wall. 177; Walker v. Christian, 21 Gratt. 291. 
 
 Where he is not personally bound, he can not sue upon the contract : Bain- 
 bridge v. Downie, 6 Mass. 253.] 
 
 (J) Infra, pp. 234, 235. (c) Weidner v. Hoggettj 1 O. P. D. 533. 
 
 (d) The rule is not excluded by the contract being in writing (not under 
 seal) and signed by the agent in his own name: Beckham- w. Drake, 9 M. & W. 
 at p. 91 ; [Ford v. Williams, 21 How. 287; Chandler v. Coe, 54 N. H. 561 ; Gush- 
 ing v. Fvice, 46 Me. 303; Lernedt*. Johns, 9 Allen, 419; Woodruffs. McGeehee, 
 30 Ga. 158; Briggs v. Partridge, 64 N.T. 357, 362; Edwards v. Golding, 20 Vt. 
 -30; Bryant v. Wells, 56 N. H. 152; Coleman „. Bank, 53 N. Y. 388; Hubbert 
 v. Borden, 6 Whart. 79 ; Ruiz v. Norton, 4 Cal. 854.] 
 
 {a) Humble v. Hunter, 12 Q. B; 310; 17 L. J. Q. B. 350; [Winchester v. How- 
 ard, 97 Mass. 303 ; Harner v. Fisher, 58 Pa. St. 453.] 
 254 
 
WHEN AGENT IS LIABLE. 228 
 
 -the agent as principal he is bound by that representation. So if 
 lie stands by and allows a third person innocently to treat with the 
 agent as principal he can not afterwards turn round and sue him 
 in his own name" (a). 
 
 Again, in the cases to which the rule does apply, the rights of 
 both the undisclosed principal and the other contracting party are 
 qualified as follows : 
 
 The principal " must take the contract subject to all equities in 
 the same way as if the agent were the sole principal" (6). Ac- 
 cordingly if the principal sues on the contract the other party may 
 avail himself of any defense which would have been good against 
 the agent (c) : thus a purchaser of goods through a factor may set 
 off a claim against the factor in an action by the factor's principal 
 for the price of the goods (d). " Where a contract is made by 
 an agent for an undisclosed principal, the principal may enforce 
 performance of it, subject to this qualification, chat the person who 
 deals with the agent shall be put in the same position as if he had been 
 ■dealing with the real principal, and consequently he is to have 
 
 (a) Eerrand v. Bischoffsheim, 4 C. B. N. S. 710, 716; 27 L. J. G. P. 802. 
 (6) Story on Agency, § 420; per Parke, B., Beckham v. Drake, 9 M. & W. at 
 p. 98. 
 
 (c) If the agent sues in his own name, the other party can not set off a debt 
 due from the principal whom he has in the meantime discovered, there being 
 no mutual debt within the statute of set-off: Isberg v. Bowden, 8 Ex. 852. 
 [And e converse, see Forney v. Shipp, 4 Jones L. 527.] Under the new prac- 
 tice, however, he can make the principal a party to the action by counterclaim, 
 and have the whole matter disposed of. See the Judicature Act, 1873, s. 24, 
 sub-si 3, and the Rules of the Supreme Court, Order XIX., r. 3, and Order 
 XXII., rr. 5-10. 
 
 (d) liabone v. Williams, 7 T. B. 360, «.; Sims v. Bond, 5 B. & Ad. 393. Per 
 -Cur., Isberg v. Bowden, 8 Ex, at p. 859. It does not matter whether the factor 
 is or is not actually authorized by his principal to sell in bis own name without 
 disclosing the agency: Ex parte Dixon, 4 Oh. D. 133. ["Where » principal 
 permits, an agent to sell as apparent principal, and afterwards intervenes, the 
 buyer is entitled to be placed in the same situation at the time of the disclosure 
 of tbe veal principal as if the agent had been the real contracting party, and 
 is entitled to. the same defense, whether it be by common law, or by statute, 
 payment, or set-off, as he was entitled to at the time against the agent— the ap- 
 parent principal:" Miller v. Lea, 35 Md. 39G; Traub v. Milliken, 57 Me. 63; 
 Kuiz v. Norton, 4 Cal. 355; Barry v. Page, 10 Cray, 398; Woodruff v. Mc- 
 Geehee, 30 Ga. 158; Bank v. Plimpton, 17 Pick. 159; Parker v. Donaldson, 2 
 
 " W. & S. 91; Koqh «.*" Willi, 63 111. 144; Peel v. Shepherd, 58 Ga. 365; Eclipse 
 Windmill Co. •». Thorson, 46 la. 181'.] 
 
 255 
 
229 CHAP. V. PERSONS AFFECTED BT CONTRACT. 
 
 the same right of set-off which he would have had against the* 
 agent" (a). And his claim to be allowed such set-off is not effec- 
 tually met by the reply that when he dealt with the ngent he had. 
 the means of knowing that he was only an agent. The existenca- 
 of means of knowledge is not material except as evidence of ac- 
 tual knowledge (b). 
 
 229] *And conversely the right of the other contracting party 
 to hold the principal liable is subject to the qualification that the 
 state of the account between the principal and the agent must not 
 be altered to the prejudice of the principal. This doctrine, origin- 
 ally laid down in a dictum of Lord Tenterden (c), has been ad- 
 hered to by a late decision of the Court of Queen's Bench, who- 
 held that the principal is not liable if he has in good faith paid the 
 agent at a time when the other party still gave credit to the agent 
 and knew of no one else (d). 
 
 Again, the other party may choose to give credit to the agent 
 exclusively after discovering the principal, and in that case he 
 can not afterwards hold the principal liable ; and statements or- 
 conduct of the party which lead the principal to believe that the 
 agent only will be held liable, and on the faith of which the prin- 
 cipal acts, will have the same result (e). And though the party 
 
 (o) Per "Willes, J., Dresser v. .Norwood, HC.B.S.S. 574, 588 ; 32 L. J. C, 
 P. 201, 205. The reversal of this case in the Ex. Ch. 17 C. B. N. 8'. 466, 34 L- 
 J. C. P. 48, does not affect this statement of the general law. 
 
 (6) Worries v. Imperial Ottoman Bank, L. K. 9 (J. P. 38. [Cp. Miller v. Le^ 
 35 Md. 396.] 
 
 (c) Thomson v. Davenport, 2 Sm. L. C. at p. 371 ; [7th Am. ed. at p. 354-355. J 1 
 
 (d) Armstrong u. Stokes, L. E. 7 Q. B. 598, dissenting from the opinion 
 (though perhaps not from the actual decision) of the judges of the Court of" 
 Exchequer in Heald v. Kenwortby, 10 Ex. 739. [Thomas v. Atkinson, 38 Ind. 
 248; Clealand v. Walker, 11 Ala. 1058. It was held in Irvine v. "Watson, 5 Q.. 
 B. D. 102, that while it is settled law that when an agent in effecting a oontract 
 for the purchase of goods does not disclose the existence of a principal at all,, 
 the seller, upon discovery of the principal, can not have recourse to him if in 
 the meanwhile the principal has bona fide paid the agent; yet if the agent does 
 disclose that he has a principal, but does not give his name, the seller may have- 
 recourse to the principal, though he has bona fide paid the agent for the goods, 
 unless there have been such conduct on the seller's part, e.g., delay in applying 
 to the principal, as might justify the principal in concluding that the seller was- 
 not looking to his credit, but to that of the agent. S. C. on appeal, lb. 414.] 
 
 (e) Story on Agency, $ 279, 288, 291 ; Horsfall v. Pauntleroy, 10 B. & tV 
 755; [Hyde v. "Wolff, 4 La. 234; French v. Price, 24 Pick. 13; Page v. Stone r 
 
 256 
 
ACTIONS BY AND AGAINST UNDISCLOSED PRINCIPAL. 230* 
 
 may elect to sue tbe principal, yet he must make such election 
 within a reasonable time after discovering him (a). When it is 
 said that he has a right of election, this means that he may sue 
 either the principal or the agent, or may commence proceedings 
 against both, but may only sue one of them to judgment; and a. 
 judgment obtained against one, though unsatisfied, is a bar to an 
 action against the other. It was decided in Priestly v. Fernie (by 
 that such is the rule as to principal and agent in general (c) ; and 
 that there is no exception in the case of shipowner and freighter, 
 which was the case before the Court. 
 
 The mere commencement of proceedings against the agent or 
 his estate after the principal is discovered, although it, may possi- 
 bly be evidence of an election to charge the agent only, does not 
 amount to an election in point of law (d). 
 
 2. *We have now to point out the results which follow [230' 
 when a man professes to make a contract as agent, but is in truth 
 not an agent, that is, has no responsible principal. 
 
 We may put out of consideration all cases in which the pro- 
 fessed agent is on the face of the contract personally bound as 
 well as his pretended principal : for his own contract can not be 
 the less valid because the contract he professed at the same time to- 
 make for another has no effect. But when the contract is not by 
 its form or otherwise such as would of itself make the professed? 
 agent a party to it, there are several distinctions to be observed. 
 
 A. First, let us take the cases where a principal is named. The* 
 other party prima facie enters into the contract on the faith of that 
 principal's credit. But credit can not be presumed to be given ex- 
 cept to a party who is capable of being bound by the contract :. 
 
 10 Met. 160; Cheever v. Smith, 15 Johns. 276; Brown v. Telegraph Co.,. 
 30 Md. 39]; but the principal is not discharged unless he has actually dealt 
 with the agent on the faith of the other party's conduct, so as to change his po- 
 sition : Wyatt v. Hertford, 3 East, 147 ; [Davis v. Allen, 3 N. T. 168 ; Muldon' 
 v. Whitlock, 1 Cow. 290; Rathbonec. Tucker, 15 Wend. 498; cp.Fitlerw. Com- 
 monwealth, 31 Pa. St. 406]. 
 
 (a) Smethurst v. Mitchell, 1 E. & E. 622; 28 L. J. Q. B. 241. 
 
 (b) 3 H. & C. 977, 983; 34 L. J. Ex. 173; cp. L. B. 6 C. P. 499. 
 
 (a) [Kingsley v. Davis, 104 Mass. 178; Jones v. Insurance Co., 14 Conn. 501. 
 But it has been held, and there is much reason for the position, that where a 
 contract is made with one who does not disclose his agency, an unsatisfied judg- 
 ment obtained against him is not a bar to an action against the principal: Bey- 
 mer v. Bonsall, 79 Pa. St. 298; Story on Agency, § 295.] 
 
 (d) Curtis v. Williamson, L. K. 10 Q. B. 57; [Cobb v. Knapp, 71 N. T. 848.J 
 17 257 
 
231 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 hence it is material whether the alleged principal is one who might 
 authorize or ratify the contract, but does not, or is one who could 
 not possibly do so. 
 
 a. The more frequent case is where the party named as princi- 
 pal is one who might be responsible. 
 
 It is now settled law that, subject to the qualifications which will 
 appear, the pretended agent has not in that case either the rights 
 or the liabilities of a principal on the contract. 
 
 First, as to his rights. In Bickerton v. Burrell (a) the plain- 
 tiff had signed a memorandum of purchase at an auction as agent 
 for a named principal. Afterwards he sued in his own name to 
 recover the deposit then paid from the auctioneer and offered evi- 
 dence that he was really a principal in the transaction. But he 
 was non-suited at the trial, and this was upheld by the full 
 Court. It was laid down (per Lord Ellenborough, C. J., Bayley, 
 Abbott and Holroyd, JJ., concurring) that ''where a man as- 
 signs himself as agent to a person named, the law will not 
 billow him to shift his position, declaring himself principal 
 and the other a creature of straw ... A man who has 
 231] *dealt with another as agent (6) is not at liberty to retract 
 that character without notice and to turn around and sue in the 
 •character of principal. The plaintiff misled the defendant and 
 "was bound to undeceive him before bringing an action." This 
 leaves it doubtful what would have been the precise effect of the 
 plaintiff giving notice of his real position before suing: but the 
 modern cases seem to show that it would only have put the de- 
 fendant to his election to treat the contract as a subsisting contract 
 between himself and the plaintiff or to repudiate it at once. Be- 
 fore we come to these it must be mentioned that there is a reported 
 case in equity which appears to be directly opposed to Bickerton v. 
 Burrell. This is Fellowes v. Lord Gwydyr (c). The facts were 
 shortly these. Lord Gwj^dyr was entitled as Deputy Great Cham- 
 berlain to the decorations used in Westminster Hall at the corona- 
 tion of George IV. He sold these to the plaintiff Fellowes, who 
 re-sold them to the defendant Page at an advanced price, but pro- 
 fessed to be selling as the agent of Lord Gwydyr, and signed the 
 agreement for sale in that character. Fellowes, being unable to 
 
 (a) 5 M. & S. 383. 
 
 (b) I.e. for a named a,nd responsible principal. 
 
 (c) 1 Sim. 03, 1 Euss. & M. 83. 
 
 258 
 
RESULTS OF HOLDING ONESELF OUT AS AGENT. 232 
 
 "procure Lord Gwydyr's consent to his name being used in an ac- 
 tion, sued Page in his own name in equity for a balance due on the 
 .agreement. It was argued for the defendant that he had been mis- 
 led "as to a most important ingredient in the contract, as to the per- 
 son, namely, with whom he had really contracted " (a). And more- 
 over it is difficult, for other reasons mentioned in the argument (a), 
 to see what equity the plaintiff had except on some notion that 
 there must always be a remedy in equity when there appears to be 
 none at law. Howeyer it was held by Sir John Leach, V.-C, and 
 by Lord Lyndhurst on appeal, that Page could not resist the per- 
 formance of the contract without showing that he had been actu- 
 ally prejudiced by having it concealed from him that Pellowes was 
 the real principal. It is submitted that this decision is contrary 
 to the principles laid down in Bickerton v. Burrell and the other 
 cases to be presently cited ; that there is no intelligible reason for 
 any distinction between law and equity on a question of contract 
 or no contract ; and *that consequently Fellowes v. Lord [232 
 Gwydyr can not now be regarded as law (6). 
 
 The doctrine under consideration was further defined in Rayner 
 v. G-rote (c). There the plaintiff sued to recover a balance due 
 upon the sale by him to the defendants of a quantity of soda ash 
 according to a bought note in this form : — " I have this day bought 
 from you the following goods from J. & T. Johnson — 50 tons soda 
 ash, . . . J. H. Eayner." It was proved that the plaintiff 
 was the real owner of the goods, and 13 tons out of the 50 had been 
 delivered to the defendants and accepted by them at a time when 
 there was strong evidence to show that they knew the plaintiff to 
 be the real principal. The law was stated as follows (d) : — 
 
 " In many such cases [viz. where the contract is wholly unperformed] 
 such as for instance the case of contracts in which the skill or solvency 
 of the person who is named as the principal may reasonably be considered 
 as a material ingredient in the contract, it is clear that the agent can not 
 then show himself to be the real principal and sue in his own name ; and 
 
 (a) 1 Russ. & M. at p. 85, 88. 
 
 lb) It may be that the decision was right on the facts, on the ground that 
 Pao'e continued to act under the contract after knowing the true state of things 
 (as was said in argument for the plaintiff, 1 Euss. & M. 83), which would bring 
 the case within Eayner v. Grote, 15 M. & W. 359; but this is not mentioned in 
 the judgments. 
 
 (c) 15 M. &W.-359. 
 
 (d) Per Our. at p. 365; and see the remarks on Bickerton v Burrell, ad. Jin. 
 
 259 
 
233 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 perhaps it may be fairly urged that this, in all executory contracts, if" 
 wholly unperformed, or if partly performed without the knowledge of 
 •who is the real principal, may be the general rule." 
 
 But here part performance had been accepted bj' the defendants, 
 with full knowledge that the plaintiff was the real principal, and it 
 was therefore considered that the plaintiff was entitled to recover. 
 
 .Next, as to the pretended agent's liability. It was at one time- 
 thought that an agent for a named principal who turned out to- 
 have no authority might be sued as a principal on the contract (a). 
 But it has been determined that he is not liable on the contract it- 
 self (6). He is liable, however, on an implied warranty of his au-- 
 233] thority to bind his principal. This was *decided in Collen 
 v. Wright (c), and has been followed in several later cases (d). 
 The pretended agent is also generally liable to an action in tort (e). 
 A somewhat similar doctrine of implied warranty has been acted 
 
 (ra) Cp. Pothier, Obi. g 75; [Walker v. Bank, 9 N. Y. 582, 585; Weare «.- 
 Gove, 44 N. H. 196; Cofi'man v. Harrison, 24 Mo. 524; Byars v. Doores' Adm'r. t 
 20 Mo. 284]. 
 
 (b) Lewis v. Nicholson, 18 Q. B. 503 ; 21 L. J. Q. B. 311 ; [Sheffield v. Ladue,. 
 16 Minn. 388; Duncan v. Niles, 32 111. 532; Bartlett v. Tucker, 104 Mass. 336;. 
 "White v. Madison, 26 N. Y. 117; Lander v. Castro, 43 Cal. 497; Noyes v. Lcr- 
 ing, 55 Me. 408.] 
 
 (c) 7 E. & B. 301 ; 26 L. J. Q. B. 147 ; in Ex. Oh. 8 E. & B. 047 ; 27 L. J. Q.. 
 B. 215; [White*. Madison, 26 N. Y. 117; Baltzen v. Nicolay, 53 N. Y. 467... 
 In some states he is held liable only in a special action on the case: Abbey v.. 
 Chase, 6 Cush. 54; Bartlett v. Tucker, 104 Mass. 336; McHenry v. Duffield, T 
 Blackf. 41 ; Noyes v. Loring, 55 Me. 408 ; Sheffield v. Ladue, 16 Minn. 388 ; see- 
 infra, p. 482, note (rf).] 
 
 (d) Richardson v. Williamson, L. R. 6 Q. B. 276; Cherry v. Colonial Bank of" 
 Australia, L. B. 3 P. C. 24, 81. But the representation of the agent that he- 
 lms authority must he a representation of matter of fact and not of law: Beat- 
 tie v. Lord Ebury, L. E. 7 Ch. 777 ; 7 H. L. 102 ; Weeks v. Propert, L. E. 8 C. 
 P. 427, 437; [McCollin v. Gilpin, 5 Q. B. D. 390. If an agent in good faith. 
 contracts with one to whom he discloses the facts relating to his supposed au- ; 
 tliority, or who is equally with the agent chargeable with a knowledge of them,. 
 he dees not become personally liable, although, through ignorance of the law,. 
 he exceeds his authority: Walker v. Bank, 9 N. Y. 582, 587; Ogden v. Ray- 
 mond, 22 Conn. 378; Newman v. Sylvester, 42 Ind. 106; Sanborn v. Neal, 4 
 Minn. 126; Murray u. Carrothers, 1 Met. (Ky.) 71; McCurdy v. Rogers, 21 
 Wis. 197; Mann v. Richardson, 66 111. 481.] As to the measure of damages, 
 Simons v. Patchett, 7 E. & B. 568; 26 L. J. Q. B. 195 ; Spedding v. Nevell, L- 
 R. 4 C. P. 212; Godwin v. Francis, L. R. 5 C. P. 295 ; [White v. Madison, 26- 
 N. Y. 117 ; Dung v. Parker, 52 N. Y. 494, 500.] 
 
 (e) Eandell *. Trimen, 18 C. B. 786 ; 25 I* J. C. P. 307. 
 
 260 
 
IMPLIED WARRANTY OF AUTHORITY. 234 
 
 -on in the case of the contract to marry. A person who promises 
 marriage also promises or warrants that he is legally capable of 
 ■marrying, and is therefore not the less liable for a breach of prom- 
 ise though it may be questionable whether the actual promise to 
 marry was not unlawful (a). However this warranty was treated 
 as an integral part of the principal contract, and no special refer- 
 ence to it in pleading was even suggested. 
 
 j9. The rules last stated are applicable only where the alleged 
 principal was ascertained and existing at the time the contract was 
 made, and might have been in fact principal. 
 
 Here the doctrine of ratification is important. When a principal 
 is named or described, but is not capable of authorizing the con- 
 tract so as to be bound by it at the time, there can be no binding 
 ratification: for "ratification must be by an existing person on 
 whose behalf a contract might have been made at the time" (b). 
 
 There fall under this head contracts entered into by professed 
 •agents on behalf of wholly fictitious persons, or uncertain persons 
 or sets of persons with whom no contract can be made by the de- 
 scription given, persons in existence but incapable of contracting, 
 and lastly (which is in practice the most important *case) [234 
 proposed companies which have not yet acquired a legal exist- 
 ence (c). Now when a principal is named who might have author- 
 ized the contract, there is at the time of the contract a possibility 
 
 (a) Millward v. Littlewood, 5 Ex. 775; 20 L. J. Ex. 2 ; and this seems to be 
 the true ground of the earlier decisions of the Court of C. P. in Wilde v. Har- 
 ris, 7 C. B. 999 ; 18 L. J. 0. P. 297. Cp. chap. VI. below, ad Jin. [See Blatt- 
 maoher v. Saal, 29 Barb. 22 ; Kelly v. Kiley, 106 Mass. 339; Coover v. Daven- 
 port, 1 Heisk. 368 ; Paddock v. Robinson, 63 111. 99.] 
 
 (b) Per Willes, J., and Byles, J., Kelner v. Baxter, L. R. 2 C. P. 174, 185; 
 Scott v. Lord Ebury, lb. 255, 267. When ratification is admitted, the original 
 -contract is imputed by a fiction of law to the person ratifying.; and the fiction 
 .is not allowed to be extended beyond the bounds of possibility. The rule may 
 be somewhat artificial, but is well established. It has been held in Spiller v. 
 Paris Skating Bink Co., 7 Ch. D. 368, that a company can ratify a contract 
 made by promoters before the company was in existence. Sed qu. supra, p. 188. 
 ,[It is essential that the party ratifying should be able not merely to do the act 
 ratified at the time the act was done, but also at the time the ratification was 
 rmade: Cook v. Tullis, 18 Wall. 332, 338.] 
 
 J (c) Kelner v. Baxter, L. R. 2 C. P. 174, and authorities there referred to : 
 .Scott v. Lord Ebury, lb. 255. Companies have in some cases been held in 
 -equity to be bound by the agreements of their promoters, but on grounds inde- 
 pendent of contract. See Lindley, 1. 412-417; p. 188 above. 
 
 261 
 
235 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 of his being bound by subsequent ratification. But when the al- 
 leged principal could not have authorized the contract, then it is 
 plain from the beginning that the contract can have no operation 
 at all unless it binds the professed agent. It is construed accord- 
 ingly ut res magis valeat quam pereat, and he is held to have con- 
 tracted in person (a). 
 
 This principal has been carried so far that in a case where cer- 
 tain persons, churchwardens and overseers of a parish, covenanted 
 "for themselves and for their successors, churchwardens and over- 
 seers of the parish," and there was an express proviso that the- 
 covenant should not bind the covenantors personally, but was in- 
 tended to bind the churchwardens and overseers of the parish for 
 the time being as such churchwardens, etc., but not otherwise, it 
 was held that since the funds of the parish could not be bound by 
 the instrument in the manner intended, the effect of the proviso- 
 was to make no one liable on the covenant at all, and therefore the 
 proviso was repugnant and void, and the covenantors were person- 
 ally liable (b). 
 
 Accordingly the proper course for the other contracting party is 
 to sue the agent as principal on the contract itself, and he need not 
 resort to the doctrine of implied warranty (e). And as the agent 
 can be sued, so it is apprehended that, in the absence of fraud, he 
 might sue on the contract in his own name. 
 
 A slightly different ease is where a man professes to contract as 
 235] agent, but without naming his principal. He is then (as *said 
 above) prima facie personally liable in his character of agent. 
 But even if the contract is so framed as to exclude that liability 
 (and therefore any correlative right to sue), he is not precluded; 
 from showing that he himself is the principal and suing in that 
 
 (a) Kelner «. Baxter, at pp. 183-185; [Aliens. Pegram, 16 la. 163; Blakeley 
 it. Benneke, 59 Mo. 193; Woodbury v. Blair, 18 la. 572; op. Jefts v. Toik, 10' 
 Oush. 392.] 
 
 (b) Furnival v. Coombes, 5 M. & Gr. 736. But the doctrine of this case will 
 certainly never be extended (see Wirliams v. Hathaway, 6 Ch. D. 544) ; and it 
 may be doubted whether it would apply at all to an instrument not under seal- 
 It is clearly competent to the parties to such an instrument to make its opera- 
 tion as a contract conditional on any event they please ; and in such a case as- 
 this why may they not agree that nobody shall be bound if the principal caik 
 not be? In Kelner v. Baxter oral evidence was offered that such was the in- 
 tention, but was rejected as contrary to the terms of the writing sued upon. 
 
 (c) Kelner v. Baxter, supra. 
 
 262 
 
PttOFESSED AGENT DISCLOSING HIMSELF Ag PRINCIPAL,. 235 
 
 character. This -was decided in Schmaltz v. Avery (a) The action 
 was on a charter-party. The charter-party, in terms, stated that it 
 was made by Schamltz & Co. (the plaintiffs) as agents for the freight- 
 ers; it then stated the terms of the contract, and concluded in 
 these words: "This charter being concluded on behalf of another 
 party, it is agreed that all responsibility on the part of G. Schmaltz 
 & Co. shall cease as soon as the cargo is shipped." This clause was 
 not referred to in the declaration, nor was the character of the plaint-, 
 iff as agent mentioned, but he was treated as principal in the contract. 
 At the trial it was proved that the plaintiff was in point of fact the 
 real freighter. Before the Court in banc the cases of Biekerton v. 
 Bnrrell and Eayner v. Grote (see pp. 231-32 above), were relied on 
 for the defense, but it was pointed out that in those eases the agent 
 named a principal on the faith of whose personal credit the other 
 party might have meant to contract. Here "the names of the sup- 
 posed freighters not being inserted, no inducement to enter into 
 the contract from the supposed solvency of the freighters [could} 
 be surmised. . . . The plaintiff might contract as agent for the 
 freighter, whoever the freighter might turn out to be, and might 
 still adopt the character of the freighter himself if he chose." (In 
 a later case in the Exchequer Chamber (b) there are some expres- 
 sions not very consistent with this, but thej' were by no means 
 necessary for the decision. Moreover Schmaltz v. Avery was not 
 cited.) And conversely, a man who has contracted in this form, 
 may, nevertheless, be sued on the contract as his own undisclosed 
 principal, if the other party can show that he is in truth the prin- 
 cipal, but not otherwise (c). In the same manner it is open to one 
 of several persons with whom a contract was nominally made to 
 show that he alone was the real principal, and to sue alone upon 
 the contract accordingly (d). 
 
 *There is yet another exceptional state of things which [236 
 has given rise to some difficulty. This is when a person assumes 
 to contract as agent under an authority which he once had, but 
 which has been determined, unknown to him and to the other 
 party, by the death of his principal. The authorities, so far as 
 
 (a) 16 Q. B. 655 (the statement of the facts is taken from the judgment of 
 the court, p. 658) ; 20 L. J. Q. B. 228. 
 (6) Sharman v. Brandt, L. R.6Q. B. 720. 
 
 (c) Carr v. Jackson, 7 Ex. 382; 21 L. J. Ex. 137. 
 
 (d) Spurr v. Cass, L. K. 5 Q. B. 656 
 
 263 
 
236 CHAP. V. PERSONS AFFECTED BT' CONTRACT. 
 
 they have gone, decide that in such a case the principal's estate 
 is not bound (a) and that the agent is not liable either in tort or 
 ■on the contract itself (b). Wo case of this kind has been decided 
 since the doctrine of implied warranty of authority was intro- 
 duced ; but the strong tendency of the case last referred to, as well 
 us the reason of the thing, are against holding the agent liable in 
 .any way when he has had no means of knowing the determination 
 of his authority. It certainly seems desirable that either a court 
 of appeal or the legislature should provide for the contract being 
 bold to bind the principal's estate, conformably to the requirements 
 of justice and to other systems of 'civilized law. This has been 
 done for British India by the Contract Act, 1872, s. 208, illust. 
 (c). See Kent, Coram. 2. 646, D. 46. 3. de solut. et liber. 32 ; Poth. 
 Obi. § 81, Code Civ. art. 2008, 2009. The German Commercial 
 Code (art. 54) even enacts in general terms that the agent's au- 
 thority is not determined by the death of the principal (c). 
 
 The subject-matter of the foregoing discussion is dealt with gen- 
 erally by ss. 226-238 of the Indian Contract Act. The rules as to 
 the parties to a contract made with an agent are given in s. 230. 
 
 " In the absence of any contract to that effect an agent can not per. 
 sonally enforce contracts entered into by him on behalf of his principal, 
 nor is he personally bound by them. 
 
 Such a contract shall be presumed to exist in the following cases: — 
 
 (a) Blades v. Free, 9 B. & C. 167 ; [Clayton v. Merrett, 52 Miss. 353 ; Davis 
 v. Bank, 46 Vt. 728; Marlett v. Jackman, 3 Allen, 287; Lewis v. Kerr, 17 la. 
 73; Harper v. Little, 2 Me. 14; Kiggs v. Cage, 2 Humph. 350; Ferris v. Irving, 
 -28 Cal. 645; Travers v. Crane, 15 Cal. 12 ; Cleveland v. Williams, 29 Tex. 204, 
 •supra, p. 20.] 
 
 (b) Smout v. Ilbery, 10 M. & "W. 1. The principle of implied warranty was 
 suggested in the argument, but the later form of action on such warranty had 
 mot then been thought of. 
 
 (c) [It has been held "that a bona fide transaction by an agent, not neces- 
 sarily to be done in the name of the principal, as a deed, etc., hut a matter in 
 j>ais merely, done after the death of the principal, but in ignorance of the event, 
 and within the scope of the agency, is, nevertheless, valid and binding on the 
 representatives of the principal;" Ish v. Crane, 13 O. S. 574; S. C, 8 O. S.520; 
 and see Cassiday v. McKenzie, 4 W. & S. 282; Dick v. Page, 17 Mo. 234; Bank 
 v. Vanderhorst, 32 N. Y. 553 ; Drew u.Nunn, 4 Q. B. D. 661, 668. 
 
 Where a principal who has held out another as his agent, subsequently be- 
 comes insane, and a third person deals with the agent without notice of the in- 
 sanity of the principal, the latter is bound: Drew v. Nunn, 4 Q. B. D. 661; 
 Davis v. Lane, 10 X. H. 156.] 
 264 
 
ASSIGNMENT OP THINGS IN ACTION : OLD AUTHORITIES. 237 
 
 (1) Where the contract is made by an agent for the sale or purchase 
 ■of goods for a merchant resident abroad; 
 
 (2) Where the agent does not disclose the name of his principal; 
 
 (3) Where the principal, though disclosed, can not be sued." 
 
 *This is based upon English law, but does not exactly rep- [237 
 resent it, as it omits to provide any fixed rule for the treatment of 
 •contracts made by an agent in writing. To make it correspond 
 with English decisions, at least since Fleet v. Murton (a), and 
 Hutchinson v. Tatham (6), we should have to replace sub-s. 2 by 
 words to this effect : 
 
 "Where it does not appear on the face of the contract that the 
 .agent is contracting only as agent for a principal." 
 
 APPENDIX B. (see p. 202, above.) 
 
 Early Authorities on Assignments of Choses in Action. 
 
 In Mich. 3 Hen. IV. 8, pi. 34, is a case where a grantee of an 
 .annuity from the king sued on it in his own name. No question 
 rseems to have been raised of his right to do so. 
 
 In Hil. 37 Hen. VI. 13, pi. 3 (already cited in the chapter on 
 Consideration, p. 155 above), it appears that by the opinion of all 
 the justices an assignment of debts was no consideration (quid pro 
 .quo) for a bond, forasmuch as no duty was thereby vested in the 
 assignee : and the Court of Chancery acted on that opinion by de- 
 creeing the bond to be delivered up: thus it is clear that the notion 
 •of such an assignment being good in equity though not at law had 
 not then arisen. It may be noted in passing that the case is other- 
 wise interesting, as it shows pretty fully the relations then existing 
 between the Court of Chancery and the Courts of Common Law. 
 
 In Hil. 21 Ed. IV. 84, pi. 38, the question was raised whether an 
 annuity for life granted without naming assigns could be granted 
 -over; and the dictum occurs that the right of action, whether an a 
 bond or on a simple contract, can not be granted over. 
 
 Mich. 39 Hen. VI. 26, pi. 36. If the king grant a duty due to 
 bim from another, the grantee shall have an action in his own 
 oiaino : " et issint ne puit nul autre faire." 
 
 (a) L. R. 7 Q. B. 129. (b) L. R. 8 C. P. 482. 
 
 265 
 
238, 239 chap. v. persons affected by contract. 
 
 238] So Mich. 2 Hen. VII. 8, pi. 25. " Le Roy poit grantn *tar- 
 action ou chose qui gist en action; et issint ne poit nul outer person."" 
 
 In Eoll Abr. Action sur Case, I. 20, pi. 12. this case is stilted to- 
 have been decided in B.E., 42 Eliz., between Mowse and Edney,. 
 per curiam: A. is indebted to B. by bill (i.e., the now obsolete form 
 of bond called a single bill), and B. to G< B. assigns A.'s bill to 0. 
 Forbearance on C.'s part for a/ certain time is no consideration for 
 a promise by A. to pay C. at the end of that time (s. v. contra, ib. 
 29, pi. 60): for notwithstanding the assignment of the bill, the- 
 property of the debt regains in the assignor. 
 
 In none of these cases is there a single word about maintenance 
 or public policy. On the contrary, it appears to be assumed 
 throughout that the impossibility of effectually assigning a chose - 
 in action is inherent by some unquestionable necessity in the legal 
 nature oFTAirngs. Finally, in Termes de la Ley, tit. Chose in Action,. 
 the rule is briefly and positively stated to this effect: Things in 
 action which are certain the king may grant, and the grantee have 
 an action for them in his own name: but a common person can 
 make no grant of a thing in action, nor the king himself of such 
 as are uncertain. No reason is given. 
 
 The exception in favor of the Crown may perhaps be derived, 
 from the universal succession accruing to the Crown on forfeitures. 
 This would naturally include rights of action, and it is easy to un- 
 derstand how the practice of assigning over such rights might 
 spring up without much examination of its congruity with the legal 
 principles governing transactions between subjects. 
 
 Before the expulsion of the Jews under Edward I. they were 
 treated as a kind of serfs of the Crown (tayllables au Roy come les 
 sooes serfs et a nul autre: Statutes of Jewry, temp, incert., dated by 
 Prynne 3 Ed. 1), and the king accordingly claimed and exercised 
 an arbitrary power of confiscating, releasing, assigning, or licensing 
 them to assign, the debts due to them. See on this subject Y. B. 
 33 Ed. 1 (in Bolls series), pp. xli., 3iJ5, and Prynne's "Short De- 
 murrer to the Jews," etc. (Lond. 1656, a violent polemic against 
 their re-admission to England), passim. 
 
 In Hil. 9 Hen. VI. 64, pi. 17, Thomas Bothewel sues J. Pewer 
 239] for maintaining W. H. in an action of detinue against *him, 
 Rot newel, for "mm box ove charters et muniments." Defense, that 
 W. H. had granted to Pewer a rent-charge, to which the muni- 
 ments in question related, and had also granted to Pewer the box 
 and the deeds, then being in the possession of Bothewel to the us&- 
 266 
 
OHOSES IN ACTION. 210'* 
 
 of W. H., wherefore PeWer maintained W. H., as he well might. 
 To this Paston, one of the judges, made a curious objection by way 
 of dilemma. It was not averred that W". H. was the owner of the 
 deeds, but only that Rothewel had them to his use ; and so the 
 property of them might have been in a stranger : '•' et issint ceo fuit' 
 chose en action et issint tout void:" the precise meaning of these 
 words is not very clear, but the general drift is that, for any thing 
 that appeared, W. H. had no assignable interest whatever ; and it 
 looks as if the strong expression tout void was meant to take a 
 higher ground, distinguishing between a transaction! impeachable 
 for maintenance and one wholly ineffectual from the beginning. 
 But if W. H. was the true owner, Paston continued, then the whole 
 property of the deeds, etc., passed to Pewer, who ought to have 
 brought detinue in his own name (a). Babington, C. J., and Mar- 
 tyn, J., the other judges present, were of a contrary opinion, hold- 
 ing that any real interest in the matter made it lawful to maintain 
 the suit. The attempt to assign a chose in action is here compared 
 by the counsel for the plaintiff to the grant of a reversion without 
 attornment; showing that the personal character of the relation 
 was considered the ground of the rule in both cases. 
 
 In Mich. 34 Hen. VI. 30, pi. 15, Eobert Horn sued Stephen Foster 
 for maintaining the administrators of one Francis in an action 
 against him, R. Horn : the circumstances being that Horn was in- 
 debted to Francis by bond, and Francis being indebted to Stephen 
 in an equal sum assigned the debt and delivered the bond to him, 
 authorizing him, if necessary, to sue on it in his (Francis') name,, 
 to which Horn agreed ; and now Francis had died intestate, and 
 Stephen was suing on the bond in the name of the administrators 
 with their consent. And this being pleaded for the defendant, was 
 held good. Prisot, in giving judgment, *compared the case [240 
 of the cestui que use of lands, whether originally or claiming by 
 purchase through him to whose use the feoffment was originally 
 made, taking part in any suit touching the lands. On this Fitz- 
 herbert remarks (Mayntenauns, 14), " Nota icy que per ceo il semble- 
 que un duite puit estre assigne pour satisfaction." So it is said in 
 Hil. 15 Hen. VII. 2, pi. 3, that if one is indebted to me, and deliver 
 
 (a) ■ Another argument put by the plaintiff's counsel, though not very mate- 
 rial, is too quaint to be pass>ed over: Whatever interest Pewer might have had 
 by the grant of the rent and the deeds relating to it, yet he bad none in the- 
 box and therefore, in respect of the box, at all events, there was unlawful- 
 maintenance on his part. 
 
 267 
 
.240 CHAP. V. PERSONS AFFECTED BY CONTRACT. 
 
 to me an obligation in satisfaction of the debt, wherein another is 
 bound to him, I shall sue in my debtor's . name, and pay my conn - 
 .sel and all things incident to the suit ; and so may do he to whom 
 the obligation was made, for each of us may lawfully interfere in 
 the matter. 
 
 Brooke, Abr. 1406, observes, referring to the last mentioned 
 
 -case : " Et sic vide que chose in action poet estre assigne oustre pur 
 loynl cause, come iust det, mez nemy pur maintenance.'" This form 
 
 • of expression is worth noting, as showing thai? assignment of a 
 chose in action meant to the writer nothing else than empowering 
 the assignee to sue in the assignor's name. He was at no pains to 
 explain that he did not mean to say the assignee could sue in his 
 own name; for he did not think any one could suppose he meant 
 to assert such a plainly impossible proposition. 
 
 This evidence seems sufficient to establish with reasonable cer- 
 tainty the statement in our text, and to convert what was a not 
 improbable conjecture a priori into historical fact. The historical 
 difficulty is one which extends to the whole of our law of contract, 
 namely that of tracing any continuity of general principles in the 
 interval between the purely Koman expositions of them in Bracton 
 and Britton and their first appearance in a definitely English 
 form. 
 
 268 
 
UNLAWFUL AGREEMENTS. 241, 24£ 
 
 ♦CHAPTER VI. [241 
 
 UNLAWFUL AGREEMENTS. 
 
 All agreements which the law refuses to enforce may perhaps in 
 some sense be called unlawful. All transactions which injuriously 
 affect either the public good or the interests of private persons who 
 have no voice in the matter, or are not fully and freely consenting 
 parties, may perhaps in some sense be called fraudulent. Hence 
 the terms fraud and illegality have acquired in common use such a 
 latitude of meaning as to make convenient arrangement and accu- 
 rate discussion almost impossible. Sometimes fraud is treated as a 
 species of illegality ; sometimes, on the other hand, we find ille- 
 gality treated wholly or in great part as a species of fraud. 
 
 But we shall here speak of unlawful agreements only in a more 
 limited sense, which is now to be explained. We have already 
 seen that an agreement is not in any case enforceable by law with- 
 out satisfying sundry conditions: as, being made between capable 
 parties, being sufficiently certain, and the like. If it does satisfy 
 these conditions, it is in general a contract which the law commands 
 the parties to perform. 
 
 But there are many things which the law positively commands 
 people not to do. The reasons for issuing such commands, the 
 weight of the sanctions by which they are enforced, and the degree 
 of their apparent necessity or expediency, are exceedingly various, 
 but for the present purpose unimportant. A murder, the obstruc- 
 tion of a highway, and the sale of a loaf otherwise than by weight,.. 
 are all on the same footing in so far as they are all forbidden acts. 
 If the subject-matter of an agreement be such that the performance 
 of it would either consist in doing a forbidden act or be so con- 
 nected therewith as to be in substance *part of the same [242 
 transaction, the law can not command the parties to perform that 
 agreement. It will not always command them not to perform it.. 
 for there are many cases where the performance of the agreement 
 is not in itself an offense, though the complete execution of the 
 object of the agreement is : but at all events it will give no sort of 
 assistance to sueh a transaction. Agreements of this kind are void. 
 
 as being illegal in the strict sense. 
 
 269 
 
"243 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 Again there are certain things which the law (a) does not forbid 
 in the sense of attaching penalties to them, but which are viola- 
 tions of established rales of decency, morals, or good manners, 
 and of whose mischievous nature in this respect the law so far 
 takes notice that it will not recognize them as the ground of any 
 legal rights. "A thing may be unlawful in the sense that the law 
 will not aid it, and yet that the law will not immediately punish 
 it (6). Agreements whose subject-matter falls within this descrip- 
 tion are void as being immoral. 
 
 Further there are a good many transactions which can not fairly 
 be brought within either of the foregoing classes and yet can not 
 conveniently be admitted as the subject-matter of valid contracts, 
 or can be so admitted only under unusual restrictions. It is 
 doubtful whether these can be completely reduced to any general 
 description, and how far judicial discretion may go in novel cases. 
 They seem in the main, however, to fall into the following cate- 
 gories : 
 
 Matters governed by reasons outside the regular scope of muni- 
 cipal law, and touching the relations of the commonwealth to for- 
 eign states : 
 
 Matters touching the good government of the commonwealth 
 and the administration of justice: 
 
 Matters affecting particular legal duties of individuals whose 
 performance is of public importance : 
 
 Things lawful in themselves, but such that individual citizens 
 could not without general inconvenience be allowed to set bounds 
 to their freedom of action with regard to those things in the 
 243] *same manner or to the same extent as they may with regard 
 to other things (c). 
 
 Agreements falling within this third description are void as be- 
 ing against Public Policy. 
 
 We have then in the main three sorts of agreements which are 
 unlawful and void, according as the matter or purpose of them is — 
 
 A. Contrary to positive law. (Illegal.') 
 
 (a) I.e. the common law. .But gu. whether the common law could take no- 
 tice of any thing as immoral which would not constitute an offense against 
 either common or ecclesiastical law. 
 
 (b) Bramwell, B. Cowan v. Milbourne ? L. B. 2 Ex. at p. 236. 
 
 (c) "We have already seen that the specific operation of contract is none 
 -other than to set bounds to the party's freedom of action as regards the subject- 
 jnatter of the contract. [Supra, pp. 187, 221.] 
 
 270 
 
CLASSES OF UNLAWFUL AGREEMENTS. 244 
 
 B. Contrary to positive morality recognized as such by law. 
 •(Immoral.') 
 
 C. Contrary to the common weal as tending 
 
 (a) To the prejudice of the State in external relations. 
 
 (b) To the prejudice of the State in internal relations. 
 
 (c) To improper or excessive interference with the lawful ac- 
 tions of individual citizens. (Against public policy.) 
 
 The distinction here made is in the reasons which determine the 
 law to hold the agreement void, not in the nature or operation of 
 the law itself: the nullity of the agreement itself is in every case a 
 matter of positive law. 
 
 When we speak for shortness of the agreement itself as contrary 
 to positive law, to positive morality, or to public policy, as the case 
 may be, we must bear in mind that this is an inexact and merely 
 :symbolic mode of speech. 
 
 The arrangement here given is believed to be on the whole the 
 most convenient, and to represent distinctions which are in fact 
 recognized in the decisions which constitute the law on the sub- 
 ject. But like all classifications it is of course only approximate: 
 and here more especially, where there is perhaps a wider field for 
 judicial, discretion than in any other part of the law, one must ex- 
 pect to find many cases which may nearly or quite as well be as- 
 signed to one place as to another. The authorities and dicta are too 
 numerous to admit of any detailed review. Nor indeed would this 
 be very desirable if it were possible. We have not to deal with 
 such a state of things as in a foregoing chapter made it necessary 
 to examine with some *minuteness the leading decisions on [214 
 the extent of corporate powers. Here the general rules are (with 
 some few exceptions on certain topics) sufficiently well settled, so 
 far as the nature of the case admits of general rules existing. 
 Any given decision, on the other hand, is likely to be rather sug- 
 gestive than conclusive when applied to a new set of facts. Some 
 positive rules for the construction of statutes have been worked 
 out -by a regular series of decisions. But with this exception we 
 find that the case-law on most of the branches of the subject pre- 
 sents itself as a clustered group of analogies rather than a linear 
 chain of authority. We have then to select from these groups a 
 certain number of the more striking and, as it were, central in- 
 stances. The statement of the general rules which apply to all 
 classes of unlawful agreements indifferently will be reserved, so far 
 
 271 
 
244 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 as practicable, until we have gone through the several classes in. 
 the order above given. 
 
 A. Agreements contrary to positive law. 
 
 1. The simplest case is an agreement to commit a crime or in- 
 dictable offense : 
 
 "If one bind himself to kill a man, burn a house, maintain a 
 suit or the like, it is void " (a). 
 
 With one or two exceptions on which it is needless to dwell, ob- 
 viously criminal agreements do not occur in our own time and i» 
 civilized countries, and at all events no attempt is made to enforce- 
 thcm. It is said that in the last century a bill was filed in Chan- 
 cery by a highwayman against his fellow for a partnership ac- 
 count, but the story is at least doubtful (6). The question may 
 
 (a) Shepp. Touchst. 370. 
 
 (b) See Lindley, 1. 188. [But the case, Everet v. Williams, was cited as an au- 
 thority hy Jessel, M. R., in Sykes v. Beadon, 11 Ch. D. 170, 195; it is reported, 
 2 Pothier on Obi., by Evans, p. 3, n (a), and is curious enough to deserve re- 
 production : " The bill stated that the plaintiff was skilled in dealing in several 
 commodities, such as plate, rings, watches, etc.; that the defendant applied to- 
 him to become a partner ; that they entered into partnership, and it was agreed 
 that they should equally provide all-sorts of necessaries, such as horses, saddles, 
 bridles, and equally bear all expenses on the roads, and at inns, taverns, or ale- 
 houses, or at markets or fairs. And your orator and the said Joseph Williams- 
 proceeded jointly in the said business with good success on Hounslow-heath, where- 
 they dealt with a gentleman for a gold watch, and afterwards the said Joseph 
 Williams told your orator that Pinchley, in the county of Middlesex, was a 
 good and convenient place to deal in, and that commodities were very plenty 
 at Finchley aforesaid, and it would be almost all clear gain to them; that they 
 went accordingly, and dealt with several gentlemen for divers, watches, rings, 
 swords, canes, hats, cloaks, horses, bridles, saddles, and other things ; that- 
 about a month afterwards the said Joseph Williams informed your orator that 
 there was a gentleman at Blackheath who had » good horse, saddle, bridle, 
 watch, sword, cane, and other things to dispose of, which he believed might be 
 had for little or no money ; and they accordingly went and met with the said< 
 gentleman, and after some small discourse they dealt for the said horse, etc., 
 and that your orator and the said Joseph Williams continued their joint deal- 
 ing together until Michaelmas, and dealt together in several places, viz., at 
 Bagshot in Surry, Salisbury in Wiltshire, Hampstead in Middlesex, and else- 
 where to the amount of £2000 and upwards. The rest of the bill is in the or- 
 dinary form for a partnership account. 3d October, 1725, on the motion of Ser- 
 geant Girdler,, the bill referred for scandal and impertinence. 29th, Novem- 
 ber, report of the bill as scandalous and impertinent confirmed; and order to- 
 attach White and Wreathcock the solicitors. 6th December " the solicitors- 
 brought into court and fined 501. each; and ordered that Jonathan Col- 
 
 272 
 
CONTRARY TO POSITIVE LAW. 245- 
 
 arise, however, whether .a particular thing agreed to he done is or- 
 is not an offense, or whether a particular agreement is or is not oin 
 the true construction of it an agreement to commit an offense. I in 
 the singular case of Mayor of Norwich v. Norfolk Ey. Co. (a), the- 
 defendant company, being authorized to make a bridge over a nav- 
 igable river at one particular place, had found difficulties in exe- 
 cuting the statutory plan, and had begun to build the bridge at 
 another place. The plaintiff corporation took steps to indict the- 
 2i5] company for a nuisance. The ^matter was compromised by 
 an arrangement that the company should — not discontinue their 
 works, but — complete them in a particular manner intended to 
 make sure that no serious obstruction to the navigation should en- 
 sue : and an agreement was made by deed, in which the company 
 covenanted to pay the corporation £1,000 if the works should not 
 be completed within twelve months, whether an Act of Parliament 
 should within that time be obtained to authorize them or not.. 
 The corporation sued on this covenant, and the company set up the- 
 defense that the works were a public nuisance and therefore the- 
 covenant to complete them was illegal. The Court of Queen's- 
 Bench was divided on the construction and effect of the deed- 
 Erie, J., thought it need not mean that the defendants were to go- 
 on with the works if they did not obtain the Act. " Where a con- 
 tract is capable of two constructions, the one making it valid and. 
 the other void, it is clear law the first ought to be adopted." Here- 
 it should be taken that the works contracted for were works to 
 be rendered lawful by Act of Parliament. Coleridge, J., to the 
 same effect : he thought the real object was to secure by a penalty 
 the speedy reduction of a nuisance to a nominal amount, which, 
 
 lins, Esq., the counsel who signed the hill, should pay the costs. The plaintiff 
 was executed at Tyburn in 1730, the defendant at Maidstone in 1735. "Wreath- 
 cock, the solicitor, was convicted of robbing Dr. Lancaster in 1735, but re- 
 prieved and transported. Lord Kenyon, in the case of Eidley v. Moore, ap- 
 pendix to Clifford's Report of Southwark Election, has referred to this case_ 
 But upon examining the office the account is not supported." Almost equal 
 in impertinence is Spalding v. Preston, 21 Vt. 9. 
 
 As to bills for partnership account of profits realized from an illegal busi- 
 ness, see, on the one hand, Brooks v. Martin, 2 Wall. 70; on the other, Watson 
 v. Fletcher, 7 Gratt. 1; Watson «.. Murray, 23 N. J. Eq. 257; Todd v . Raf- 
 ferty's Adm'r., 30 N. J. Eq. 254; King v. Winants, 71 ST. C. 469; Snell v. 
 Dwight, 120 Mass. 9; Craft v. McConoughy, 79 111. 346; Sykes v. Beadon, 11 
 Ch. £>. 170.] 
 (a) 4 E. & B. 397 ; 24 L. J. Q. B. 105. 
 
 18 . 273 
 
246 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 was quite^lawful, the corporation not being bound to prosecute for 
 ■a nominal nuisance. Lord Campbell, C. J., and Wightman, J., 
 held the agreement bad, as being in fact an agreement to continue 
 an existing unlawful state of things. The performance of it (with- 
 out a new Act of Parliament) would have been an indictable of- 
 fense, and the Court could not presume that an Act would have 
 been obtained. Lord Campbell said, "In principle I do not ^ee 
 bow the present ease is to be distinguished from an action by A. 
 against B. to recover £1,000, B. having covenanted with A. that 
 within twelve calendar months he would murder 0., and that on 
 failing to do so he would forfeit and pay to A. £1,000 as liquidated 
 damages, the declaration alleging that although B. did not murder 
 C. within the twelve calendar months he had not paid A. the 
 £1,000 " (a). The question was also discussed whether the cove- 
 nant was ultra vires or not on the part of the company. But of 
 this we have sjjoken in a former chapter. 
 
 It seems impossible to draw any conclusion in point of law 
 246] *from such a division of opinion (b). But the case gives 
 this practical warning, that whenever it is desired to contract for 
 the doing of something which is not certainly lawful at the time, 
 or the lawfulness of which depends on some event not within the 
 •control of the parties, the terms of the contract should, make it 
 clear that the thing is not to be done unless it becomes or is ascer- 
 tained to be lawful. 
 
 Moreover a contract may be illegal because an offense is contem- 
 plated as its ulterior result. For example, there is nothing unlaw- 
 ful in printing, but no right of action can arise for work done in 
 printing a criminal libel (c). But this depends on the more general 
 considerations which we reserve for the present. 
 
 2. Again an agreement will generally be illegal, though the'mat- 
 ter of it may not be an indictable offense, and though the forma- 
 tion of it may not amount to the offense of conspiracy, if it con- 
 templates any civil injury to third persons. Thus an. agreement 
 
 (a) 4E.& B. 441. 
 
 (b) Not only was the court equally divided, but a perusal of the judgments 
 at large will show that no two' members of it -really looked at the case in the 
 same way. The reporters (4 E. & B. 397) add not without reason to the bead- 
 note : 1: t quaere inde. 
 
 (c) Poplett v. Stockdale, 1 E. &M:'337. [Nor can a printer recover for work 
 done in printing a work in violation of a copyright secured to a third person; ' 
 Nichols v. Ruggles, 3 Day, 145.] .■■ ■',, .-' .:,: ,'" L . v ;. •, , 
 
 274' 
 
WRONGFUL Ag AGAINST THIRD PERSONS. 24^» 
 
 "to divide the profits of a fraudulent scheme, or to carry 6iit some 
 -object in itself not unlawful by means of a trespass, breach of con- 
 tract, or breach of trust is unlawful and void. It is submitted that 
 this must be taken as established, notwithstanding a doubt ex- 
 pressed in a work of no small authority (a). The cases cited in 
 support of the proposition " that a contract is not illegal or void 
 simply because private rights are interfered with by the act stipu- 
 lated for " do not seem by any means to bear it out (b) : and there 
 is direct authority the *other way. A. applies to his friend [247 
 
 B. to advance him the price of certain goods which he wants to 
 buy of C. B. treats with C. for the sale, and pays a sum agreed 
 upon between them as the price. It is secretly agreed between A. 
 and C. that A. shall pay a further sum ; this last agreement is void 
 as a fraud upon B., whose intention was to ralieve A. from paying 
 any part of the price (c). Again, A. and B. are interested in com- 
 mon with other persons in a transaction the nature of which re- 
 quires good faith on all hands, and a secret agreement is made be- 
 tween A. and B. to the prejudice of those others' interest. Such 
 are in fact the cases of agreements "in fraud of creditors;" that 
 is, where there is an arrangement between a debtor and the gen- 
 eral body of the creditors, but in order to procure the consent 
 of some particular creditor, or for some other reason, the debtor or 
 any person on his behalf secretly promises that creditor some ad- 
 vantage over the rest.' All such secret agreements are void (d), 
 
 (a) [Harrington v. Victoria Graving Dock Co., 3 Q. B. D. 549 ; Fuller v. Dame, 
 18 Pick. 472; Glenn v. Matthews, 44 Tex. 400; Rice «. "Wood, 113 Mass. 133, 
 135; Guernsey v. Cook, 120 Mass. 501; Jackson v. Lucleling, 21 Wall. 616; 
 Byrd v. Hughes, 84 111. 174; Foote v. Emerson, 10 Vt. 338.] 
 
 (b) Notes to Collins v. Blantern, 1 Sm. L. C. 398 [7th Am. ed. 682]. An agree- 
 ment to commit a civil injury is a conspiracy in many, but it seems impossible to 
 
 -say precisely in what cases. See the title of Conspiracy (by Sir James Stephen) 
 in the last edition of Boscoe's Digest. An agreement to commit, a trespass likely 
 to lead to a breach of the peace, Keg. v. Bowlands, 17 Q. B. 671, 686 ; 21 L. J. M . 
 
 C. 81 — or to commit a civil wrong by fraud and false pretenses, Beg. v. War- 
 burton, L. B. 1 C. C. B. 274 ; cp. Reg. v. Aspinall, 2 Q. B. D. at p. 59— is, a 
 •conspiracy. An agreement to commit a simple breach of contract is not a con- 
 spiracy. Before the C. L. P. Act a court of common law could not take notice 
 •of an agreement being in breach of trust so as to hold it illegal: Warwick v. 
 Bichardson, 10 M. & W. 284, and agreements to indemnify trustees against 
 formal breaches of trust are in practice constantly assumed to be valid in equity 
 *s well as at law. 
 
 (c) Jackson v. Duchaire, 3 T. E. 551. 
 
 (d) [Clarke v. White, 12 Pet. 178, 199 ; Bliss v. Matteson,45 N.T.22; Trum- 
 
 275 
 
247 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 isecuritie% given in pursuance of them may be set aside, and money- 
 paid under them ordered to be repaid (a). Moreover the other- 
 creditors who know nothing of the fraud and enter into the ar- 
 rangement on the assumption "that they are contracting on terms- 
 of equality as to each and all " are under such circumstances not 
 bound by any release they give (6). And it will not do to, say 
 that- the underhand bargain was in fact for the benefit of the cred- 
 itors generally, as where the preferred creditor becomes surety for 
 the payment of the composition, and the real consideration for this- 
 is the debtor's promise to pay his own debt in full; for the credit- 
 ors ought to have the means of exercising their own judgment (c). 
 But where one creditor is induced to become surety for an install- 
 ment of the composition by an agreement of the principal debtor- 
 to indemnify him, and a pledge of part of the assets for that pur- 
 pose, this is valid ; for a compounding debtor is master of the as- 
 sets and may apply them as he will ( d). 
 
 ball «. Tilton, 1 Fost. 128; Winn a. Thomas, 55 N. H. 294; O'Shea v. Collier, &c.,.. 
 Co., 42 Mo. 397 ; Case v. Gerrish, 15 Pick. 49 ; Sternberg v. Bowman, 103 Mass. 
 325; Harvey v. Hunt, 119 Mass. 279; Patterson v. Boehm, 4 Pa. St. 507 ; Smith' 
 v. Owens, 21 Cal. 11 ; Lawrence v. Clark, 36 N. Y. 128; Eeldman v. Gamble, 26- 
 N. J. Eq. 494. 
 
 Where a composition agreement was made, by the terms of which the debtor 
 was to give his notes for a percentage of his indebtedness, and he afterwards, 
 voluntarily gave to one of his debtors, party to the composition agreement, 
 notes for the balance of his claim which by their terms would mature before 
 the composition notes, the notes last given were held void; Way v. Langley, 15 
 O. S. 392.] 
 
 (a) McKewan v. Sanderson, 15 Eq. at p. 234, per Malins V.-C. See Leake, 
 403-5 [2d ed. 766, sqq. ; Crossley v. Moore, 40 N. J. L. 27; Bean v. Brookmire,. 
 2 Dill. 108; Bean v. Amsinck, 10 Blatchf. 361 (not affected as to the general 
 rule by the reversal in 22 Wall. 395.] 
 
 (b) Dauglish v. Tennant, L. E. 2 Q. B. 49, 54; [Hefter v. Cahn, 73 111. 296;. 
 Partridge v. Messer, 14 Gray, 180; Kahn v. Gumberts, 9 Ind. 430. 
 
 " Where a party induced a creditor to sign a composition agreement, whereby 
 he accepted one-half of his claim in full, upon the representation of his debtor 
 that no person had received any other thing, etc., the fact that the debtor had 
 given 1 his note for five hundred dollars to induce another creditor to sign the- 
 same agreement, which note, upon suit thereon, was adjudged void, is not suffi- 
 cient to avoid the contract of composition, as it worked no injury to the cred- 
 itor;" Bartlett v. Blaine, 83 111. 25.] 
 
 (e) Wood v. Barker, 1 Eq. 139. 
 
 (d) Ex parte Burrell, (C. A.) 1 Ch. D. 537. 
 276 
 
WRONGFUL AS AGAINST THIRD PERSONS. 248 
 
 The principle of these rules was thus explained by Erie, J., in 
 Jkfallalieu v. Hodgson (a) : — 
 
 * " Each creditor consents to lose part of his debt in consideration [248 
 that the others do the same, and each creditor may be considered to stipu- 
 late with the others for a release from them to the debtor in consideration 
 of the release by him. Where any creditor, in fraud of the agreement to 
 accept the composition, stipulates for a preference to himself, his stipu- 
 lation is altogether void — not only can he take, no advantage from it, but 
 lie is also to lose the benefit of the composition (b). The requirement 
 of good faith among the creditors and the preventing of gain by agree- 
 ments for preference have been uniformly maintained by a series of cases 
 from Leicester v. Rose (c) to Howden v. Haigh (b) and Bradshaw v. Brad- 
 shaw '' (d). 
 
 From the last cited case (d) it seems probable, though it is not 
 decided, that when a creditor is induced to join in a composition by 
 having an additional payment from a stranger without the knowl- 
 edge of either the other creditors or the debtor, the debtor on dis- 
 covering this may refuse to pay him more than with such extra 
 payment will make up his proper share under the comjjosition, or 
 may even recover back the excess if he has paid it involuntarily, 
 e.g. to bona fide holders of bills given to the creditor under the 
 composition. 
 
 A debtor who has given a fraudulent preference can claim no 
 benefit under the composition even as against the creditor to -whom 
 the preference has been given (e). 
 
 A secret agreement by a creditor to withdraw his opposition to a 
 bankrupt's discharge or to a composition is equally void (f) ; and 
 it does not matter whether it is made with the debtor himself or 
 with a stranger (e), nor whether the consideration offered to the 
 
 (a) 16 Q. B. 089; 20 L. J. Q. B. 339, 347. See further Ex parte Oliver, 4 Do 
 G. & Sm. 354. 
 
 (b) Howden o. Haigh, 11 A. & E. 1033 ; [Doughty v. Savage, 28 Conn. 146; 
 Huntington v. Clark, 39 Conn. 540, 554.] 
 
 (c) 4 East, 372, showing that the advantage given to the preferred creditor 
 meed not be in money. 
 
 (d) 9 M. & W. 29. 
 
 (e) Higgins v. Pitt, 4 Ex. 312; [Bell v. Leggett, 7 N. T. 176.] 
 
 (f) [Nat. Bankruptcy Act, 1867, 11. S. U. S., § 5131 ; Austin v. Markham, 44 
 Ga. 161 ; Wiggin v. Bush, 12 Johns. 305; Payne v. Eden, 3 Caines, 213; Yeo- 
 -mans v. Chatterton, 9 Johns. 295; Tuxbury v. Miller, 19 Johns. 311 ; Bruce v. 
 Lee, 4 Johns. 410 ; Eice v. Maxwell, 13 S. & M. 289 ; Blasdell v. Eowle, 120 
 
 .Mass. 447 ; Sharp ». Teese, 4 Halst. 352.] 
 
 277 
 
249 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 creditor for such withdrawal is to come out of the debtor's assets-- 
 or not (a) ; and this even if it is part of the agreement that the 
 creditor shall not prove against the estate at all (b). In like man- 
 ner if a debtor executes an assignment of his estate and effects foi- 
 the benefit of all his creditors upon a secret agreement with the 
 trustees that part of the assets is to be returned to him, this agree- 
 ment is void (c). 
 
 249] *We have here at an early stage of the subject a good 
 instance of the necessarily approximate character of our classifica- 
 tion. We have placed these agreements in fraud of creditors here 
 as being in effect agreements to commit civil injuries. But a com- 
 position with creditors is in most cases something more than an 
 ordinary civil contract; it is in truth a quasi-judicial proceeding, 
 and as such is recognized and assisted by the law (d). Public- 
 policy, therefore, as well as private right requires that such a pro- 
 ceeding should be conducted with good faith and that no transaction 
 which interferes with equal justice being done therein should be 
 allowed to stand. The doctrine of fraud on third parties, as it may 
 be called, is however not to be extended to cases of mere suspicion 
 or conjecture. A possibility that the performance of a contract 
 may injure third persons is no ground for presuming that such was 
 the intention, and on the strength of that presumed intention hold- 
 ing it invalid between the parties themselves. 
 
 " Where an instrument between two parties has been entered into for 
 a purpose which may be considered fraudulent as against some third per- 
 son, it may yet be binding, according to the true construction of its 
 language, as between themselves." 
 
 Nor can a supposed fraudulent intention as to third persons (in- 
 ferred from the general character and circumstances of a trans- 
 action) be allowed to determine what the true construction is (e), 
 
 3. There are certain cases analogous enough to the foregoing to 
 call for mention here, though not for any full treatment. Their 
 general type is this : There is a contract giving rise to a continuing- 
 relation to which certain duties are incident by law; and a special 
 
 (a) Hall v, Dyson, 17 Q. B. 785 ; 21 L. J. Q. B. 224. 
 (J) McKewan v. Sanderson, 20 Eq. 65. 
 (e) Blacbloek v. Dobie, 1 0. P. D. 265. 
 
 (d) Bankruptcy Act, 1869, s. 126; [Nat. Bankruptcy Act, 1867, as amended^ 
 22d June, 1874, c. 390, s. 17, v. 18 Stat., p. 182.] 
 
 (e) Shaw v. Jeffery, 13 Moo. P. C. 432, 455. 
 
 278 
 
AGREEMENTS IN FRAUD OP CREDITORS. 250 1 
 
 .sanction ia provided fcr those duties by holding that transactions' 
 inconsistent with them avoid the original contract, or are themselves 
 voidable at the option of the party whose rights are infringed. We 
 have results of this kind from 
 
 (a). Dealings between a principal debtor and creditor to the 
 prejudice of a surety: 
 
 ( J S). Dealings by an agent in the business of the agency on his- 
 own account : 
 
 *(j). Voluntary settlements before marriage "in fraud of [SSO' 
 marital rights." 
 
 In the first case the improper transaction is as a rule valid in 
 itself, but avoids the contract of suretyship. In the second it is. 
 voidable as between the principal and the agent. In the third it 
 is voidable at the suit of the husband. 
 
 (a). ."Any variance made without the surety's consent in the 
 terms of the contract between the principal debtor and the creditor 
 discharges the surety as to transactions subsequent to the vari- 
 ance" (a), if either the original contract was made part of the 
 surety's contract, or the variance is material, that is, such as to put 
 the surety in a worse position (which last is a question of law, not 
 of fact) (6). The surety is not the less discharged l; even though 
 the original agreement may notwithstanding such variance be sub- 
 stantially performed" (c). An important application of this rule 
 is that "where there is a bond of suretyship for an officer, and by 
 the act of the parties or by Act of Parliament the nature of the- 
 office is so changed that the duties are materially altered, so as to- 
 affect the peril of the sureties, the bond is avoided " (d). But when 
 the guaranty is for the performance of several and distinct duties, 
 and there is a change in one of them, or if an addition is made to 
 the duties of the principal debtor by a distinct contract, the surety 
 
 (a) Indian Contract Act, s. 133. 
 
 (5) Sanderson v. Aston, L. E. 8 Ex. 73. [But see Holme v. Brunskill, 3 CJ. 
 B. D. 495.] 
 
 (c) Per Lord Cottenham, Bonar v. Macdonald, 3 H. L. C. 226, 238. 
 
 (d) Oswald v. Mayor of Berwick-on-Tweed, 5 H. L. C. 856; Pybus v. Gibb r 
 6 E. & B. 902, 911 ; 26 L. J. Q. B. 41;. Mayor of Cambridge v. Dennis, E. B. & 
 E. 660; 27 L. J. Q. B. 474; [Miiler v. Stewart, 9 Wheat. 680; Bank v. Dicker- 
 son, 41 JSf. J. L. 448 ; Reynolds v. Hall, 1 Scam. 35; Gass v. Stinson, 2 Sumner, 
 4.j3 ; Boston Hat Manufactory v. Messinger, 2 Pick. 223 ; Blair v. Insurance 
 Co., 10 Mo. 559; People v. Tompkins, 74 111. 482; Roman a., Peters, 2 Bob. La. 
 479; White v. East Saginaw, Sup. Ct. Mich., 10 C. L. J. 496.] 
 
 279 
 
230 CHAP. VI. UNLAWFUL AGREEMENTS. . 
 
 remains liable as to those which are unaltered (a). The following 
 rules rest on the same ground : ■ ,• 
 
 " The surety is discharged by any contract between the creditor 
 and the principal debtor by which the principal debtor is released, 
 or by any act or omission of' the creditor the legal consequence of 
 which is the discharge of the principal debtor "(6). 
 
 ''A contract between the creditor and the principal debtor, by 
 which the creditor makes a composition with, or promises to 
 251 *give time to or not to sue the principal debtor, discharges the 
 surety (c) unless the surety assents to such contract" (d), or unless 
 in such contract the creditor reserves his rights against the sure- 
 • ty (e), in which case the surety's right to be indemnified by the 
 
 (a) Harrison v. Seymour, L. K. 1 C. P. 518; Skillett v. Fletcher, L. B. 1 G. 
 P. 217, 224, in Ex. Ch. 2 C. P. 469. [See Gaussen v. United States, 97 U. S. 
 ■584; Commonwealth v. Holmes, 25 Gratt. 771. Or if only an additional 
 Amount of duty is added, not amounting to a change in the nature of the of- 
 fice, the sureties remain liable: People v. Vilas, 30 IT. Y. 459; Strawbridge v. 
 Railroad Co., 14 Md. 360; Smith v. Peoria Co., 59 111. 412; Commonwealth v. 
 ■Gabbert's Adm'r., 5 Bush, 438; United States v. Gaussen, 2 Woods, 92; King 
 m. Nichols, 16 O. S. 80.] 
 
 (b) I. C. A. s. 134; Kearsley v. Cole, 16 M. & W. 128; Cragoe v. Jones, L. 
 B. 8 Ex. 81 ; [Trotter v. Strong, 63 111. 272; Moore v. Paine, 12 Wend. 123; 
 Sohier v. Loring, 6 Cush. 537; Bingham a. Wentworth, 11 Cush. 123; Eichel- 
 "berger v. Morris, 6 Watts, 42 : " The consent of the surety to the release of the 
 principal prevents such release operating as a discharge of the surety :'' Osgood 
 -». Miller, 67 Me. 174.] 
 
 (c) [Banki;. Hatch, 6 Pet. 250; White v. Whitney, 51 Ind. 124; Andrews ». 
 Marrett, 58 Me. 539; Cox v. Railroad Co., 44 Ala. 611; Apperson a. Cross, 5 
 Heisk. 481 ; Chickasaw Co. v. Pitcher, 36 la. 593 : Meyers v. Bank, 78 111. 257; 
 .Stewart v. Parker, 55 Ga. 656; Weed S. M. Co. ■„. Oberreich, 38 Wis. 325; 
 Prarie v. Jenkins, 75 N. C. 545; Ducker ». Bapp, 67. N. Y. 464; Calvo v. Da- 
 lies, 73 N. Y. 211 ; Bank v. Lucas, 26 O. S. 385; Stillwell v. Aaron, 69 Mo. 
 539; Hubbard v. Ogden, 22 Kan. 363; 2 L. C. in Eq., 4th Am. ed. 1906.] 
 
 (d) I. C. A. s. 135. Oakeley v. Pasheller, 4 CI. & P. 207 ; Oriental Financial 
 Corporation v. Overend, Gurney & Co., L. B. 7 H. L. 318; Green v. Wynn, 4 
 Ch. 204; Bateson v. Gosling, L. K. 7 C. P. 9 ; [Gray's Exr's. v. Brown, 22 Ala. 
 262 ; Crutcher o. Trabue, 5 Dana, 80 ; Treat v. Smith, 54 Me. 112 ; Bank v. 
 Whitman, 66 111. 331 ; Bowling v. Flood, 1 Lea, 678. 
 
 Nor will the surety be discharged where the principal debtor has indemnified 
 him by giving ample collateral security : Kleinhaus n. Generous, 25 O. S. 667; 
 Chilton v. Bobbins, 4 Ala. 223 ; Smith v. Steele, 25 Vt. 427 ; Moore v. Paine, 12 
 Wend. 123.] 
 
 («), Whether the surety knows of it or not : Webb v. Hewitt, 4 K. & J. 438, 
 442; and set per Lord Hatherley, 7 Ch. 150. 
 280 
 
DEALINGS TO PREJUDICE OF SURETY. 251 
 
 principal debtor continues (a)'. One reported case constitutes an 
 .apparent exception to the general rule, but is really none, as there 
 the nominal giving of time had in substance the effect of accelerat- 
 ing the creditor's remedy (6). 
 
 " If the creditor does any act which is inconsistent with the 
 rights of the surety, or omits to do any act which his duty to the 
 surety requires him to do, and the eventual remedy of the surety 
 himself against the principal debtor is thereby impaired, the surety 
 is discharged " (c). 
 
 "A surety is entitled to the benefit of ever}' security which the 
 creditor has against the principal debtor at the time when the con- 
 tract of suretyship is entered into, whether the surety knows of the 
 -existence of such security or not; and if the creditor loses or with- 
 out the consent of the surety parts with such security, the surety 
 is discharged to the extent of the value of the security" (d). JSTot 
 -only an absolute parting with the security, but any dealing with it 
 
 (a) Close v. Close, 4 D. M. G. 170, 185. The reasonableness of the rule is 
 • open to question, but it is firmly established. See per Our. in Swire v. Redman, 
 
 1 Q. B. I). 541-2; [2 L. 0. Eq., 4th Am. ed. 1910; Ken worthy v. Sawyer, 
 125 Mass. 28; Claggett v. Salmon, 5 Gill. & J. 314, 353; Richardson v. Fierce, 
 119 Mass. 165; Sohier v. Loring, 6 Cush. 537; Iiubbell v. Carpenter, 5 N. Y/. 
 171 ; Morgan v. Smith, 70 N". T. 537; Hagey v. Hill, 75 Pa. St. 108.] 
 
 (b) Hulme v. Coles, 2 Sim. 12; [Hallett v. Holmes, 18 Johns. 28; Fletcher v. 
 -Gamble, 3 Ala. 335; Barker v. McClure, 2 Blackf. 14; Suydam v. Vance, 2 
 
 McLean, 99; Gardner v. Van Nostrand, 13 Wis. 543.] 
 
 (a) I. C. A. s. 139 (= Story Eq. Jur. g 325 nearly) ; "Watson v. Allcock, 4 D. 
 M. G. 242, supra, p. 160; Burgess v. Eve, 13 Eq. 450; Phillips v. Eoxall, L. R. 
 7 Q. B. 666; Sanderson v. Aston, L. R. 8 Ex. 73; [Railroad Co. v. Gow, 59 Ga. 
 
 ■685; and see McKecknie v. Ward, 58 N. Y. 541 ; A. & P. Telegraph Co. v. 
 Barnes, 64 N. Y. 385; Railroad Co. v. Casey, 30 Gratt. 218.] 
 
 (d) I. O. A. s. 141. Mayhew v. Crickett, 2 Swanst. 185, 19.1 ; Wulff B.Jay, L. 
 R. 7- Q. B. 756, 762; Bechervaise v. Lewis, L. R. 7 C.P. 377. [And see 2 Wh. & 
 T. L. C. (4th ed.) 1002 (4th Am. ed. 1890) ; Eegley v. McDonald, 89 Pa. St. 
 128; Wharton v. Duncan, 83 Pa. St. 40; Burr v. Boyer, 2 Neb. 265; Smiths. 
 McLeod, 3 Ired. Eq. 390 ; Springer v. Toothakor, 43 Me. 381 ; Cummings v. Lit- 
 tle, 45 Me. 183; Kirkpatrick v. Howk, 80 111. 122; Baker v. Briggs, 8 Pick. 122; 
 
 -Sherraden v. Parker, 24 la. 28; Bank v. Young, 43 N. H. 457 ; Saulet v. Tre- 
 pagnier, 2 La. Ann. 427; Gillespie v. Darwin, 6 Heisk. 21, 27; Ashby v. Smith, 
 9 Leigh, 164; Bank v. Page, 44 N. Y. 453, 457.] Securities now subsist, not- 
 withstanding payment of the debt for the benefit of a surety who has paid: 
 Merc. Law Amendment Act, 1856 ; 19 & 20 Vict., c. 97, s. 5. [Such is the 
 prevailing doctrine in this country independent of statute; see 1 Wh. & T. L. 
 
 -C. 4th Am. ed. 137; Brandt on Guaranty and Suretyship, g 270 sqq. As to 
 
 -dealings between creditor and debtor to the prejudice of a surety, see the very 
 
 281 
 
252 CHAP. VI. UNLAWFUL AGEEEMENTS. 
 
 ■ 
 
 pudi that the surety can not have the benefit of it in the same con- 
 dition in which it existed in the creditor's hands, will have this- 
 effect (a). 
 
 ft. " If an agent deals on his own account in the business of the 
 ;igency without first obtaining the consent of his principal and 
 acquainting him with all material circumstances which h:ive- 
 252] *come to his own knowledge on the subject, the principal 
 may repudiate the transaction " (b) : the Indian Act goes on to- 
 add, "if the case show either that any material fact has been dis- 
 honestly concealed from him by the agent, or that the dealings- 
 of the agent have been disadvantageous to him," but these qualifi- 
 cations are not recognized in English law (c). 
 
 "If an agent without the knowledge of his principal deals in the 
 business of the agency on his own account instead of on account 
 of his principal, the principal is entitled to claim from the agent 
 any benefit which may have resulted to him from the transac- 
 ti .n " (d). 
 
 These rules are well known and established, and have been over- 
 aii'l over again asserted in the most general terms. The common- 
 est case is that of an agent for sale himself becoming the pur- 
 chaser, or conversely: "He who undertakes to act for another in 
 any matter shall not in the same matter act for himself (e). 
 Therefore a trustee for sale shall not gain any advantage by being 
 himself the person to buy" (/). "An agent to sell shall not con- 
 full notes to Deering v. Earl of "Winchelsea, and Kees v. Berrington, in the 4th. 
 Am. ed. of Wh. & T. L. 0.] 
 
 (a) Pledge v. Buss, Johns. 668. (6) I. 0. A. ». 215. 
 
 (c) See Story on Agency, \ 210; Ex parte Laeey, 6 Ves. 626. 
 
 (d)l. C. A. ». 216. 
 
 (e) [Kingo v. Binns, 10 Pet. 269; Smith v. Collins, 1 Head, 251, 256; Meyer's 
 Appeal, 2 Pa. St. 463; Murphy v. Sloan, 24 Miss. 658; Krutz v. Fisher, 8 Kan.- 
 '90; Fulton v. Whitney, 66 N. Y. 548; Baker v. Whiting, 3 Sumner, 475; Bar- 
 tholomew v. Leech, 7 Watts, 472; McKinley v. Irvine, 13 Ala. 681 ; Blount v. 
 Bobeson, 3 Jones Eq. 73 ; McMahon v. McGraw, 26 Wis. 614 ; Sogers v. Lock- 
 ett, 28 Ark. 290; Baker v. Humphrey, 101 U. S. 494. 
 
 An agent to buy, buying for himself, holds in trust for his principal: Well- 
 ford v. Chancellor, 5 Graft. 39 ; Keed v. Warner, 5 Paige, 650; Church v. Ster- 
 ling, 16 Conn. 388; Matthews v. Light, 32 Me. 305; Firestone v. Firestone, 49- 
 Ala. 128.] 
 
 (/) [Michoud v. Girod, 4 How. 503 ; Moore v. Moore, 5 N. Y. 256; Davoue- 
 v. Fanning. 2 Johns. Ch. 252 ; Gardner v. Ogden, 22 N. Y. 327 ; Kruse v. Steff- 
 ens, 47 111. 112; Walker v. Palmer, 24 Ala. 358; Shannon v. Marmaduke, 14^ 
 282 
 
DEALINGS TO PREJUDICE OF SURETY. 252' 
 
 vert himself into a purchaser unless he can' make it perfectly clear 
 that he furnished his employer with all the knowledge which he 
 himself possessed" - (a). ''It is an axiom of the law of principal 
 and agent that a broker employed to sell can not himself become 
 the buyer, nor can a broker employed to buy become himself the 
 seller, without distinct notice to the principal, so that the latter 
 may object if he think proper" (6). If the local usage of a par- 
 
 Tex. 217; Marsh v. Whitmore, 21 Wall. 178; Staats v. Bergen, 17 N.J. Eq.- 
 297, 554; Piatt v. Longwortb's Devisees, 27 0. S. 159, 195. 
 
 A purchase of the subject-matter of the trust by a trustee, although the pur- 
 chase he at public auction, for an adequate price and fair in all respects, will be 
 set aside, as of course, at the election of the cestui que trust, unless the latter - 
 forfeits his right to relief by laches or acquiescence ; lb.; Scott o. Ereeland, 7 
 S. & M. 409; Brothers v. Brothers, 7 lred. Eq. 150; Mason v. Martin, 4 Md.- 
 124; Martin v. Martin, 12 Ind. 266; Patton v. Thompson, 2 Jones Eq. 285. 
 
 But where the trustee pmxhases from the cestui que trust himself, who is- 
 sui juris, and intended that the trustee should buy, and there is no deception, 
 no concealment, and no advantage taken by the trustee, the sale will be up- 
 held: Buell v. Buckingham, 16, la. 284; Michoud v. Girod, 4 How. 503, 556; 
 Keighler v. Savage Mfg. Co., 12 Md. 383, 417; Eisner's Appeal, 34 Pa. St. 29.] 
 
 (a) Whichcote v. Lawrence, 3 Ves. 750; Lowther v. Lowther, 13 Ves. 95,. 
 103 ; and see Charter v. Trevelyan, 11 CI. & P. 714, 732 ; [Jeffries v. "Wiester, . 
 2 Sawyer,' 135; Keighler v. Savage M'f'g. Co., 12 Md. 383 ; Ingle ■». Hartman, 
 37 la. 274. 
 
 An agent employed to sell can not himself be a purchaser unless he is known 
 to his principal to be such ; Eldredge v. Walker, 60 111. 230; Copeland v. In- 
 surance Co., 6 Pick. 198; Rennick v. Butterfield, 11 Post. 70; Martin v. Moul- 
 ton, 8 N. H. 504; Bank v. Parmer's L. & T. Co., 16 Wis. 629; and the rule ap- 
 plies where the employment is to sell at a stipulated price ; Buckman v. 
 Bergholz, 37 N. J. L. 437 ; and see De Bussehe v. Alt, 8 Ch. D. 286, 317. 
 
 A factor directed to procure insurance can not himself become the insurer; 
 Kean v. Branden, 12 La. Ann. 20.] 
 
 (4) Per Willes, J., in Mollett v. Robinson, L. E. 5 C. P. at p. 655; Cp. Guest v. 
 Smythe, 5 Ch. 551, per Giffard L. J.; Sharman v. Brandt, L. K. 6 Q. B. 720; 
 [Conkey v. Bond, 36 N. Y. 427; Taussig v. Hart, 49 N. Y. 301 ; 58 N. Y. 425. 
 A broker acting for both vendor and purchaser can not recover for his services : 
 Rice 17. Wood, 113 Mass. 133; Smith u. Townshend, 109 Mass. 500; Bailroad- 
 Co. -o. Pattison, 15 Ind. 70; Loyd v. Colston, 5 Bush, 587 ; Lynch v. Pallon, 11 
 B. 1.311; Everhardt v. Searle, 71 Pa. St. 256 ; Scribner v. Collar, 40 Mich. 375 ; . 
 Fritz i). Pinnerty, Sup. Ct. Col., 10 C. L. J. 487. Cp. Alexander v. N. W. C. 
 University. 57 Ind. 466: unless the double agency was with the full knowl- 
 edge and free consent of both principals: Bowe v. Stevens, 53 N. Y. 621. Cp. 
 Raisin v. Clark, 41 Md. 158. A mere middleman, to bring the parties together, 
 . may contract for compensation from both: Rlipp v. Sampson, 16 Gray. 398;^ 
 Herrrnan v. Martineau, 1 Wis. 151 ; Mullen v. Keetzleb, 7 Bush, 253.] 
 
 283 
 
253 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 ticular trade or market contravenes this axiom by "converting a 
 broker employed to buy into a principal selling, for himself," it can 
 not be treated as a custom so as to bind a principal dealing in that 
 trade or market through a broker, but himself ignorant of the 
 usage (a). 
 
 The rule is not arbitrary or technical, but rests on the principle 
 253] *that an agent can not be allowed to put himself in a posi- 
 tion in which his interest and his duty are in conflict, and the court 
 will not consider " whether the principal did or did not suffer any 
 injury in fact by reason of the dealing of the agent ; for the safety 
 of mankind requires that no agent shall be able to put his princi- 
 pal to the danger of such an inquiry as that" (6). It is a corollary 
 from the main rule that so long as a contract for sale made by an 
 '.agent remains executory he can not repurchase the property from 
 his own purchaser except for the benefit of his principal (c). A 
 
 (a) Robinson v. Mollett, L. B. 7 H. L. 802, 838. [As to usage, see Day v. 
 Holmes, 103 VI ass. 306; Earnsworth v. Hemmer, 1 Allen, 494; Baisin v. 
 Clark, 41 Md. 158.] For the special application of the rule to the duty 
 
 . of directors of companies, Hay's ca., 10 Ch. 593 ; Albion Steel "Wire Co. 
 v. Martin, 1 Ch. D. at p. 585, per Jessel, M. B.; [Eailroad Co. a. Poor, 
 59 Me. 277 ; Goodwin v. Railroad Co., 18 O. S. 169 ; Eailway Co! v. Dewey, 
 14 Mich. 477 ; Hoffman Coal Co. v. Cumberland Coal (Jo., 16 Md. 456 ; Port v. 
 Eussell, 36 Ind. 60; Eailroad Co. v. Bowler, 9 Bush,468; Blake v. Eailroad Co., 
 56 N. Y. 485 ; Ashnrst's Appeal, 60 Pa. St. 290; Wardwell v. Eailroad Co., 4 
 Dill. 330; Wilbur v. Hough, 49 Cal. 290; Eyan v. Eailway Co., 21 Kan. 36a]; 
 as to promoters, New Sombero Phospate Co. v. Erlanger, 5 Ch. D. 73 ; [affirmed in 
 H. L. 3 App. Cas. 1218; Whaley Bridge Printing Co. v. Green, 5 Q. B. D. 109; 
 MeElhenny v. Hubert Oil Co., 61 Pa. St. 188; Dinsmore Oil Co. v. Dinsmore, 
 
 > 64 Pa. St. 43 ; Simons v. Vulcan Oil Co., 61 Pa. St. 202 ; Getty v. Devlin, 54 
 3ST. Y. 4Q3; Emma Silver Mining Co. v. Grant, 11 Ch. D. 918; Emma Silver 
 Mining Co. v. Lewis, 4 C. P. D. 89G.] 
 
 (b) [Taussig v. Hart, 58 N. Y. 425 ; Everhardt v. Searle, 71 Pa. St. 256 ; Boil- 
 ing Stock Co. v. Eailroad Co., 34 O. S. 450, 460 ; Eritz v. Pinnerty, Sup. Ct. 
 Col., 10 C. L. J. 487. An agreement to pay a commission to the agent of an- 
 other by one who is about to contract with that other, if the agent will use his 
 influence to induce his. principal 'to enter into the contract, is a corrupt agree- 
 ment, and not enforceable at law, although it does not induce the agent to act 
 ■corruptly. It would be " most mischievous to hold that a man could come into 
 a court of law to enforce such a bargain on the ground that ha was not in fact 
 
 ■ corrupted. It is quite immaterial that the employer was not in fact damaged:" 
 Harrington v. Victoria Graving Dock Co., 3 Q. B. D. 549 ; Tollman v. Loomis, 
 -41 Conn. 581.] 
 
 (c) Parker v. McKenna, 10 Ch. 96, 118, 124, 125 ; [Bain v. Brown, 56 N. Y. 
 
 284 
 
DEALINGS BY AGENT AGAINST HIS DUTT. 254 
 
 like rule applies to the case of an executor purchasing any part 
 of the assets for himself. But it is put in this somewhat more 
 stringent form, that the burden of proof is on the executor to show 
 that the transaction is a fair one. This brings it very near to the 
 doctrine of Undue Influence, of which in a later chapter. It makes - 
 no difference that the legatee from whom the purchase was made 
 was also co-executor (a). Another branch of the same principle is 
 to be found in the rules against trustees and limited owners renew- 
 ing leases or purchasing reversions for themselves (&). 
 
 Again, "It maybe laid down as a general principle that in all 
 cases where a person is either actually or constructively an agent - 
 for other persons, all profits and advantages made by him in the 
 business beyond his ordinary compensation are to be for the ben- 
 efit of his employers " (c). " If a person makes any profit by 
 being employed contrary to his trust, the employer has a right to 
 call back that profit" (d~). And it is not enough for an agent who 
 is himself interested in the matter of the agency to tell his princi- 
 pal that he has some interest : he must give full information of all 
 material facts (e). 
 
 Even this is not all : an agent, or at any rate a professional 
 *adviser, can not keep any benefit which may happen to [254: 
 result to him from his own ignorance or negligence in executing 
 his duty. In such a case he is considered a trustee for the persons 
 who would be entitled to the benefit if he had done his duty prop- 
 erly (/). 
 
 285; Cook v. Berlin, W. M. Co., 43 Wis. 433.] And see on the subject gen- 
 erally, the notes to Fox v. Mackreth, in 1 Wh. & T. L. C. 
 
 (a) Gray v. "Warner, 16 Eq. 577. 
 
 (b) Notes to Keeeh v. Sandford, in 1 Wh. & T. L. C. The last case on the - 
 subject is Trumper v. Trumper, 14 Eq. 295; 8 Ch. 870; [Grumley v. Webb, 44 
 Mo. 444 ; Holridge v. Gillespie, 2 Johns. Ch. 30 ; Perry on Trusts, ?jS 196, 538.] i 
 
 (c) Story on Agency, j! 211, adopted by the Court in Morison v. Thompson, 
 L. E. 9 Q. B. 480, 485, where several cases are collected; [Dutton v. Willner,.- 
 52 N. Y. 312; Lafferty v. Jelly, 22 Ind. 471; Dodd v. Wakeman, 26 N. J. Eq. 
 484, 487 ; Ackenburgh v. McCool, 36 Ind. 473 ; Wilson v. Wilson, 4 Abb. App. 
 Dec. 621 ; Love v. Hoss, 62 Ind. 255 ; and see cases in note (a), next page.] 
 
 (d) Massey v. Davies, 7 Ves. 317, 320. 
 
 le) See authorities collected, and observations of the Court thereon, Dunne 
 
 v. English, 18 Eq. 524, 534. 
 
 (/) Bulkley v. Wilford, 2 CI. & F. 102. Cp. Corley v. Lord Stafford, 1 De - 
 
 G. & J. 238. 
 
 285 
 
'255 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 In this class of cases the rale seems to be that the transaction 
 •improperly entered into by the agent is voidable so far as the, na- 
 ture of the ease admits. Where it can not. be avoided as against 
 third parties, the principal can recover the profit from the agent (a). 
 But where there are a principal, an agent, and a third party con- 
 tracting with the principal and cognizant of the agent's employ- 
 ment, and there are dealings between the third party and the iigent 
 which give the agent an interest against his duty, there the prin- 
 cipal on discovering this has the option of rescinding the contract 
 altogether. Thus when company A. contracted to make a tele- 
 graph cable for company B., and a term of the contract was that 
 the work should be approved by C, the engineer of company B., 
 and C. took an undisclosed sub-contract from company A. fordoing 
 the same work ; and further it appeared that this arrangement was 
 contemplated when the contract was entered into; it was held that 
 company B. might rescind the contract (b). 
 
 y. The rule as to settlements "in fraud of marital right" was 
 thus given by Lord Langdale (c) : — 
 
 " If a woman entitled to property enters into a treaty for marriage and 
 during the treaty represents to her intended husband that she is so enti- 
 tled, that upon her marriage he will become entitled jure marili, and if 
 during the same treaty she clandestinely conveys away the property in 
 such manner as to defeat his marital right and secure to herself the sep" 
 arate use of it, and the concealment continues till the marriage takes 
 place, there can be no doubt but that a fraud is thus practiced on the 
 husband and he is entitled to relief" (d). 
 
 But it does not stop here. " If both the property and the mode of its 
 conveyance, pending the marriage treaty, were concealed from the in- 
 255] tended husband as in the case of Goddard v. Snow (e), there *is 
 still a fraud practiced on the husband. The non-acquisition of property 
 of which he had no notice is no disappointment, but still his legal right 
 to property actually existing is defeated " (/). 
 
 (a) [Stoner v. Weiser, 24 Ia. 434; Bell v. Bell, 3 "W. Va. 183 ; Moore v. Man- 
 delbaum, 8 Mich. 433 ; Seegar ». Edwards, 11 Leigh, 213; Kerfoot v. Hyman, 
 52 111. 512 ; De Bussche v. Alt, 8 Ch. D. 28<5.] 
 
 (b) Panama & S. Pacific Telegraph Co. v. India Kubber,'&c, Co., 10 Ch. 515. 
 [Hitter v. Eailroad Co., Sup. Ct. Pa., 8 Hep. 184; Smith v. Sorby, 3 Q. B. D. 
 
 _552; Young v. Hughes, 32 N. J. Eq. 329.] 
 
 (c) Cp. on this subject, Dav. Conv., vol. 3, pt. 2. 707. 
 
 (d) England v. Downs, 2 Beav. 522, 528. 
 
 (is) 1 Buss. 485. See the earlier authorities there discussed. 
 .(f) 2 Beav. 529; [Chandler v. Hollingsworth, Del. Ct. of Chancery, rep. 2 
 286 
 
FRAUDS ON MARITAL RIGHTS. 255' 
 
 In order to have such a settlement set aside the husband must 
 prove — 
 
 (i) That be was the intended husband at the date of the settle- 
 ment — i.e. that there was then a complete contract to marry which 
 •continued until the marriage (a). 
 
 (ii) That the settlement was not known to him till after the 
 marriage (b). 
 
 What if the intended husband knows that some disposition has 
 been or is to be made, but not its contents? The doctrine ns far 
 as it has gone seems to be that such knowledge makes it the duty 
 ■of the husband to inform himself, and if he omits inquiry he can 
 not afterwards complain (c)j but if he does inquire, and incorrect 
 information is given, this is equivalent to total concealment (<£). 
 According to the modern doctrine no difference is made by collat- 
 eral circumstances, " such as the povert}' of the husband — the fact 
 that he has made no settlement upon the wife— the reasonable 
 character of the settlement- [which is impeached], as in the case of 
 & settlement upon the children of a former marriage" or the 
 like (e). 
 
 Nevertheless relief may be refused on the ground that the hus- 
 band's conduct before the marriage has been such as to "put it out 
 ■of the power of the wife effectually to make any stipulation for the 
 
 Bishop on the Law of Married Women, g 34o, note;, Robinson v. Buck, 71 Pa. 
 St. 386; Tucker v. Andrews, 13 Me. 124; McAfee v. Ferguson, 9 B. Mon. 475; 
 Linker v. Smith. 4 "Wash. C. C. 224; Strong v. Menzies, 6 Ired. Eq.. 544. 
 
 This notwithstanding the Married Women's Separate Property Acts; Baker 
 ii. Jordan. 73 N. C. 145; Belt v. Ferguson, 3 Grant's Gas. 289; Duncan's Ap- 
 peal, 43 Pa. St. 67; Freeman v. Hartman, 45 111. 57.] 
 
 (a) England v. Downs, 2 Beav. 522, 528; Cp. Downes v. Jennings, 32 Beav. 
 290, 294; [Wilson v. Daniel, 13 B. Mon. 348; Williams v. Carle, 2 Stockt. Ch. 
 543, 552; Butlers. Butler, 21 Kan. 521.] 
 
 (J) St. George ■». Wake, 1 My. & K. 610, 625 ; [Cole v. O'Neill, 3 Md. Oh. 
 174; Prather v. Burgess, 5 Cr. C. 0. 376; Cheshire v. Payne, 16 B. Mon. 
 618; Terry v. Hopkins, 1 Hill's Ch. 1; McClure v. Miller, 1 Bailey Eq. 107 ; 
 Fletcher v. Ashley, 6 Gratt. 332, per Brooke, J.] 
 
 (c) Wrigley v. Swainson, 3 De G. & Sm. 458; [cp. Spencer v. Spencer, 3 
 Jones Eq. 404; Johnson v. Peterson, 6 Jones Eq. 12.] 
 
 (d) Prideaux v. Lonsdale, 4 Giff. 159. The Court of Appeal (1 D. J. S. 433, 
 438) declined to say any thing on this part of the case, affirming the decision ori 
 •the ground that the settlor herself did not understand the effect of her act. 
 
 (e) [Goodson v. Whitfield, 5 Ired. Eq. 163; Tisdale v. Bailey, 6 Ired. Eq.358; 
 .Ramsay ■». Joyce, 1 MeMullan's. Jiq. 236; Logan v. Simmons, 3 Ired. Eq. 487; 
 Manes v. Durant, 2 Rich. Eq. 404. . Contra, Green v. Goodall, 1 Coldw. 404.J 
 
 287 
 
256 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 (settlement of her property;" as where there has been previous se- 
 duction (a). 
 
 The husband's right to set aside the settlement, like, all rights- 
 of setting aside or rescinding voidable transactions, may be lost. by 
 acquiescence or delay amounting to proof of acquiescence (6). 
 256] *lt is said that.if the husband discovers the settlement before 
 the marriage takes place, he may rescind the contract to marry, and 
 will have a good defense to an action at law for breach of promise 
 of marriage (c). This seems, only reasonable, but we do not know 
 of any direct authority for it. Finally we venture to suggest that 
 the doctrine might well be put on a broader ground than appears- 
 in the cases. The, contract to marry gives rise to a new status be- 
 tween the parties, to which mutual duties are incident .beyond the- 
 simple performance of the contract by marriage at the tiime ex- 
 pressed or contemplated (d). Among these may fairly be reckoned 
 the observance of the utmost good faith in all things, and in par- 
 ticular the duty of not making without the other party's consent 
 any disposition of property of such a permanent and considerable- 
 kind as might affect the order and condition of the future house- 
 bold. Such conduct, one may think, shows a want of confidence 
 which the other party is entitled to treat as incompatible with the- 
 marriage contract. Looking at it in this way, there seems no- 
 reason why the rule should not apply to both parties equally. The 
 expectation of acquiring a marital right can not 'be said really to 
 exist in most cases. There is in truth a mutual expectation of ac- 
 quiring what is practically a common interest. It is obvious, how- 
 ever, that as a rule the only motive for a clandestine settlement is 
 the woman's desire to exclude the marital right of the. future hus- 
 band. Since no such motive can exist on the other side, the con- 
 verse case of a clandestine settlement by the man is most unlikely 
 to happen ; there is little chance, therefore, that the correctness of 
 the view here suggested will ever be brought to a decisive test (e). 
 
 (a) Taylor v. Pugh, 1 Ha. 608, .614-6 ; [Anonymous, 34 Ala. 430.] In. 
 Downes v. Jennings, 32 Beav. 290, no importance was attached to the parties- 
 having lived together before marriage. But the. circumstances were such as to' 
 show that their conduct was deliberate. 
 
 (4) Loader ». Clarke, 2 Mac. & G. 382. 
 
 (c) By Sir John Leach, M. B., in St. George v. "Wake, supra; [Cheshire «.. 
 Payne, 16 B. Mon. 618.] 
 
 (d) Frost v. Knight, L. E. 7 Ex. Ill, 115, 118. 
 
 {e) [In this country it is well settled that a secret conveyance of his real es- 
 288 
 
MARRIAGE WITHIN PROHIBITED DEGREES. 257 
 
 One reported case, however, supplies some analogy. By a mar- 
 riage settlement the husband's father settled a jointure on the wife ; 
 by u secret bond of even date the husband indemnified his father 
 against the payment of it; this indemnity was held void as "a 
 fraud upon the faith of the marriage contract" (a). 
 
 4. Marriages within the prohibited degrees of kindred and af- 
 finity are another class of transactions contrary to positive law. 
 *For although no direct temporal penalties are attached to [257 
 ' them, they have been made the subject of express and definite statu- 
 tory prohibition (b). They formerly could not be treated as void 
 unless declared so by an Ecclesiastical Court in the lifetime of the 
 parties : but by a modern statute (5 & 6 Wm. 4, c. 54) they are 
 now absolutely void for all purposes. An executory contract 
 to marry within the prohibited degrees is of course abso- 
 lutely void also (c), and would indeed have been so before the 
 statute. These rules are not local, like other rules of munici- 
 pal law prescribing the solemnities of the marriage ceremony, 
 requiring the consent of particular persons, or the like : the legis- 
 lature has referred the prohibition to public grounds of a general 
 nature (speaking of these marriages as " contrary to God's law")> 
 (d) and it concerns not the form but the substance of the contract;. 
 
 tate by a man on the eve of his marriage is voidable as against his wife's right 
 of dower. Smith v. Smith, 2 Halst. Ch. 515; Swaine v. Perrine, 5 Johns. Ch. 
 482; Petty v. Petty, 4 B. Mon. 215; Cranson v. Cranson, 4 Mich. 230; Leach v. 
 Duvall, 8 Bush, 201; Chandler o. Hollingsworth, Del. Ct. of Chancery, 2 
 Bishop on the Law of Married Women, j} 343, note; cp. Dearmond v. Dear- 
 mond, 10 Ind. 191; Butler v. Butler, 21 Kan. 521. 
 
 As to whether under our registry laws the record of the conveyance of real 
 estate by the intended husband or wife, should operate as constructive notice to 
 the other party, see 2 Bishop on the Law of Married Women, g 345.] 
 
 la) Palmer v. Neave, 11 Ves 165. Cp. the other similar cases cited in Story 
 Eq. Jur., §§ 266-271. One or two of these, however, are really cases of estoppel. 
 
 (J) 32 H. 8, c. 38, and earlier repealed statutes of the same reign. It is the 
 better supported opinion that 5 & 6 Wm. 4. c. 54 does not contain any new sub- 
 stantive prohibition. See Brook v. Brook, 9 H. L. C. 193. 
 
 (c) It seems from Millward v. Littlewood, 5 Ex. 775; 20 L. J. Ex. 2, that in 
 the barely possible case of the relationship being known to only one of the- 
 parties, by whom it is fraudulently concealed from the other, the innocent party 
 mav sue as for a breach of contract, though the performance of the agreement 
 would be unlawful. 
 
 (d) The use of these particular words seems of little importance. [See the 
 remarks of Gray, C. J., in Commonwealth v. Lane, 113 Mass., at pp. 470, 471.] 
 The true reason is shortly put by Savigny, Syst. 8, 326 : " die hier einschlagen- 
 
 19 289 
 
258 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 it therefore applies to the marriages of domiciled British subjects, 
 in whatever part of tbe world the ceremony be performed, and 
 -whether the particular marriage is or is not of a kind allowed by 
 the local law (a). 
 
 " If a marriage is absolutely prohibited in any country as being con- 
 trary to public policy and leading to social evils, I think that the domi- 
 ciled inhabitants of that country can not be permitted, by passing the 
 frontier and entering another state in which this marriage is not prohib- 
 ited, to celebrate a marriage forbidden by their own state, and immedi- 
 ately reluming to their own state to insist on their marriage being recog- 
 nized as lawful" (b). 
 
 Where a marriage has been contracted in England between 
 foreigners domiciled abroad, English Courts will recognize dis- 
 '258] abilities, *though not being juris gentium, imposed by the 
 law of the domieil (a). 
 
 The " Act for the better regulating the future marriages of the 
 ".Royal Family " (12 Geo. 3, c. 11) imposes on the persons within 
 its operation disabilities (absolute before the age of 25, qualified 
 after that age) to marry without the consent of the Sovereign : and 
 
 den Gesetze, die auf sittlichen Riicksichten beruhen, haben eine streng positive 
 Uatur." 
 
 (a) Brook v. Brook, 9 H. L. C. 193. And by Lord Campbell, gu. whether a 
 ■marriage allowed by the law of the' place, but contracted by English subjects 
 who had come there on purpose to evade 'the English law, would be recognized 
 even by the local' courts. 
 
 (b) Per Lord Campbell, Brook v. Brook, 9 H. L. C. at p. 220 ; [Williams v. 
 Oates, 5 Ired. L. 535 ; Kinney v. Commonwealth, 30 Gratt. 858 ; State v. Ken- 
 nedy, 76 B.C. 251. 
 
 In the very learned opinion of Gray, C. J., in Commonwealth v. Lane, 113 
 "Mass. 458, where the earlier Massachusetts and the English cases are collected, 
 it is said, " a marriage which is prohibited here by statute because contrary to the 
 policy of our law, is yet valid- if celebrated elsewhere according to the law of 
 the place, even if the parties are citizens and residents ot this Commonwealth,' 
 and have gone abroad for the purpose of evading our laws, unless the Legisla- 
 ture has clearly enacted that such marriages out of the State shall have no va- 
 lidity here ; " and see Ponsford v. Johnson, 2 Blatchf. 51; Stevenson v. Gray, 
 17 B. Mon. 193.] 
 
 (c) Sottomayor v. DeBarros, 3 P. D. 1 ; revg. s. c. 2 P. D. 81. [In Milliken 
 i). Pratt, 125 Jlass. 374, Gray, C. J., at p. 381, says of Sottomayor v. De Barros, that 
 the decision '• is utterly opposed to our law ; and consequently the diclum, of 
 Lord Justice Cotton, ' it is a well recognized principle of law that the question 
 of personal capacity to enter into any contract, is to be decided by the law of 
 domieil,' is entitled to little weight here." See Sottomayor v. I)e Barros; 5 P. 
 D. 94, 100.] ... 
 
 29.0 
 
PROHIBITORY STATUTES. 259 
 
 -this disability is personal, not local, so that a marriage without 
 -consent is equally invalid wherever celebrated (a). 
 
 5. Moreover a great variety of dealings of which contracts form 
 part, or to which they are incident in the ordinary course of af- 
 fairs, are for extremely various reasons forbidden or restricted by 
 -statute. During the last century, in particular," Acts of Parliament 
 regulating the conduct of sundry trades and occupations were 
 strangely multiplied. Most of these are now repealed, but the de- 
 cisions upon them established principles on which our Courts still 
 act in dealing with statutes of this kind. 
 
 The question whether a particular transaction comes within the 
 meaning of a prohibitory statute is manifestly one of construction. 
 So far as we have to do with it here, we have in each case to ask, 
 Does the Act mean to forbid this agreement or not? And in each 
 case the language of the particular Act must be considered on its 
 own footing. Decisions on the same Act may of course afford di- 
 rect authority. But decisions on more or less similar enactments, 
 and even on previous enactments on the same subject, can not as a 
 rule be regarded as giving more than analogies. Attempts have 
 indeed been made at different times to lay down fixed rules, nomi- 
 nally of construction, but really amounting to rules of law which 
 would control rather than ascertain the expressed intention of the 
 legislature. But in recent times our courts have fully and ex- 
 plicitly disclaimed any such powers of interpretation. 
 
 " The only rule for the construction of Acts of Parliament is that 
 they should be construed according to the intent of the Parliament 
 *which passed the Act;" provided that the words be "sufficient [259 
 to accomplish the manifest purpose of the act " (b). 
 
 In like manner it is now understood that one or two dicta which 
 are to be found in the books, suggesting that an Act of Parliament 
 against " common right " or " natural equity " would be void, must 
 stand as warning rather than authority (c). The effect of plain, 
 
 (a) The Sussex Peerage ease, 11 CI. & P. 85. 
 
 (i) Opinion of the judges in the Sussex Peerage ea., 11 CI. & P. at p. 143, 
 per Tindal, C. J. ; per Lord Brougham at p. 150. And see per Knight Bruce, 
 L. J., Crofts v. Middleton, 8 D. M. G. 217 ; per Lord Blackburn, in Biver "Wear 
 Comm'rs. v. Adatnson, 2 App. Ca. at p. 764. 
 
 (c) Per Willes, J., Lee v. Bude, &c, By. Co., L. R. 6 C. P. 576, 582. Cp. 
 ■dictum of Lord Holt, cited 12 Beav. 68: "An act of parliament can do no 
 -wrong, though it may do several things that look pretty odd." 
 
 291 
 
260 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 and unambiguous words is not to be limited by judicial construc- 
 tion even though anomalous results should follow (a): 
 
 On the other hand the general intention is to be regarded, and 
 may if necessary prevail over particular expressions, no less than 
 in the interpretation of private instruments (6). But this must be 
 an intention collected from what the legislature has said, not ar- 
 rived at by conjectures of what the. legislature might or ought to 
 have meant. A transaction not in itself immoral is not to be held 
 unlawful on a conjectural view of the policy of a statute (c). We 
 may now understand the meaning of this last phrase, which is not 
 uncommon in cases of the kind now before us. The true policy of 
 a statute, in a court of justice at all events, is neither more nor less 
 than its right and reasonable construction. The Courts no longer- 
 undertake either to cut short or to widen the effect of legisla- 
 tion according to their views of what ought to be the law. 
 
 The cases in which acts of corporate bodies created for special, 
 purposes have been held void as " contrary to the policy of the leg- 
 islature" and tending to defeat the objects of the incorporation 
 have already been considered in Ch. II. Eightly understood, they 
 are quite consistent, it is believed, with what is here said. 
 
 These principles, when applied to the more limited subject-matter 
 of prohibitory statutes, give the following corollaries : 
 260] *(a). When a transaction is forbidden, the grounds of the 
 prohibition are immaterial. Courts of justice can not take note of 
 any difference between mala prohibita (i.e., things which if not for- 
 bidden by positive law would not be immoral) and mala in se (i.e., 
 things which are so forbidden as being immoral) (d). 
 
 (b). The. imposition of a penalty by the legislature on any spe- 
 cific act or omission is prima facie equivalent to an express prohi- 
 bition (e). 
 
 Id) Cargo ex Argos, &c, L. R. 5 P. C. at pp. 152-3. 
 
 (b) As to which, see L. R. 2 Ex. 198. 
 
 (c) Barton v. Muir, L. R. 6 P. C. 134. 
 
 (d) [Holt v. Green, 73 Pa. St. 198; White v. Buss, 3 Cush. 448; Greenough, 
 ■o. Balch, 7 Me. 461 ; Rossman v. McFarland, 9 O. S. 369, 379 ; Downing v. 
 Ringer, 7 Mo. 585; Hill v. Spear, 50 N. H. 253, 277.] 
 
 (e) [Roby v. West, 4 N. H. 285 ; Bloom v. Richards, 2 O. S. 387, 395 ; Brack- 
 ettr. Hoyt, 9 Fost. 264; Elkins v. ParMmrst, 17 Vt. 105; Bancrofts. Dumas, 
 21 Vt. 456 ; Clarke v. Insurance Co., 1 Story, 109, 122; Dillon v. Allen, 46 la.. 
 299 ; Gregory v. Wilson, 36 N. J. L. 315; Woods v. Armstrong, 54 Ala. 150;. 
 Durgin v. Dyer, 68 Me. 143.] 
 
 292 
 
PROHIBITORY STATUTES. 261 
 
 These rules are established by the case of Bensley v. Bignold (a), 
 -which decided that a printer could not recover for his work or ma- 
 terials when he had omitted to print his name on the work printed, 
 as then required by statute (6). It was argued that the contract 
 was good, as the act contained no specific prohibition, but only a 
 direction sanctioned by a penalty. But the Court held unani- 
 mously that this was untenable, and a party could not be permitted 
 to sue on a contract where the whole subject-matter was ' ; in direct 
 violation of the provisions of an Act of Parliament." And Best, 
 J., said that the distinction between mala prohibita and mala in se 
 was long since exploded. The same doctrine has repeatedly been 
 ■enounced in later cases. 
 
 Thus, for example by the Court of Exchequer : 
 
 "When the contract which the plaintiff seeks to enforce, be it express 
 or implied, is expressly or by implication forbidden by the common or 
 statute law, no Court will lend its assistance to give it effect. It is 
 equally clear that a contract is void if prohibited by a statute though the 
 . statute inflicts a penalty only, because such a penalty implies a prohi- 
 bition" (c). 
 
 It is needless to discuss the " policy of the law " wheu it is dis- 
 tinctly enunciated by a statutory prohibition (d) 
 
 (c). Conversely, the absence of a penalty, or the failure of a 
 penal clause in the particular instance, will not prevent the Court 
 from giving effect to a substantive prohibition (e). 
 
 *(d.) What the law forbids to be done directly can not be [261 
 made lawful by being done indirectly. 
 
 In Booth v. Bank of England (/) a joint stock bank procured its 
 manager to accept certain bills on the understanding that the bank 
 would find funds, these bills being such as the bank itself could not 
 have accepted without violating the privileges of the Bank of Eng- 
 land. It was held by the House of Lords, following the opinion of 
 the judges, that this proceeding " must equally be a violation of 
 
 (a) 5 B. & Aid. 335. (J) See now 32 & 33 Vict., c. 24. 
 
 (c) Cope v. liowlands, 2 M. & W. 149, 157. Cp. Chambers v. Manchestar & 
 Milford Ky. Co., 5 B. & S. 583; 33 L. J. C. P. 268; Ke Cork & Youghal By. 
 Co., 4 Ch. 748, 758. 
 
 (rf) See per Lord Cran worth, Ex parte Neilson, 3 D. M. G. 556, 566 ; [Bank 
 -». Stegall, 41 Miss. 142, 183.] 
 
 (e) Sussex Peerage ca., 11 CI. & F. at pp. 148-9. 
 
 (/) 7 CI. & P. 509, 540, upholding Bank of England v. Anderson, 2 Keen, 
 328 ; 3 Bing. (N. C.) 589 
 
 293 
 
262 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 the rights and privileges of the Bank of England, upon the prin- 
 ciple that whatever is. prohibited bylaw to be done directly can- 
 not legally be effected by an indirect and circuitous contrivance ;"' 
 for the acceptor was merely nominal, and the bills were in fact, 
 meant to circulate on the credit of the bank. 
 
 In Bank of United States v. Owens (a) the charter of the 
 bank forbade the taking of a greater rate of interest than six 
 per cent., but did not say that a contract should be void in 
 which such interest was taken. A note payable in gold was 
 discounted by a branch of the bank in a depreciated local paper- 
 currency at its nominal value, so that the real discount 'was- 
 much more than six per cent. The Court held this transaction 
 void, though there was no express prohibition of an agreement to- 
 take higher interest, and though the charter spoke only of taking, 
 not of reserving interest. Parts of the judgment are as follows r. 
 "A fraud upon a statute is a violation of the statute." " It can not 
 be permitted by law to stipulate for the reservation of that which 
 it is not permitted to receive. In those instances in which Courts- 
 are called upon to inflict a penalty it is necessarily otherwise ; for 
 then the actual receipt is generally necessary to consummate the 
 offense. But when the restrictive policy of a law alone is in con- 
 templation, we hold it to be an universal rule that it is unlawful to- 
 contract to do that which it is unlawful to do." 
 
 " There can be no civil right where there can be no legal remedy, 
 and there can be no legal remedy for that which is itself illegal;. 
 . . . there is no distinction as to vitiating the contract between 
 malum in se and malum prohibitum " (b). 
 
 262] *The cases are similar in principle in which transactions- 
 have been held void as attempts to evade the bankruptcy laws : 
 thus, to take only one example, a stipulation that a security shall 
 be increased in the event of the debtor's bankruptcy or any pro- 
 vision which has the same effect, is void (c). 
 
 When conditions are prescribed by statute for the conduct of any 
 particular business or profession, and such conditions are not ob- 
 served, agreements made in the course of such business or pro- 
 fession — 
 
 (a) 2 Pet. 527. (J) 2 Pet. 536, 539. 
 
 (c) Ex pavte Mackay, 8 Ch. 643 ; Ex parte Williams, (O.A.) 7 Ch. D. 138,.. 
 where the device used was the attornment of the debtor to his mortgagee at an 
 excessive rent. [Ex parte Jackson, 14 Cb. D. 725.] 
 
 294 
 
PROHIBITORY STATUTES. 262 
 
 (e) are void if it appears by the context that the objest of the- 
 legislature in imposing the condition was the maintenance of 
 public order or safety or the protection of the persons dealing with 
 those on whom the condition is imposed : (a) 
 
 (f) are valid if no specific penalty is attached to the specific 
 transaction, and if it appears that the condition was imposed for 
 merely administrative purposes, e.g., the convenient collection of 
 the revenue (6). 
 
 The following are instances illustrating this distinction : — 
 
 AGREEMENT VOID. 
 
 Eitchie v. Smith, 6 C. tf. 462 ; 18 L. J. C. P. 9. The owner of a licensed 
 house underlet part of it to another person, in order that he might there 
 deal in liquor on his own account under color of his lessor's license and 
 without obtaining a separate license. This agreement was void, its pur- 
 pose being to enable one of the parties to infringe an Act passed for the 
 protection of public morals (the licensing Acts are of this nature, and not 
 merely for the benefit of the revenue, for this reason, that licenses are 
 not to be had as a matter of right by merely paying for them). For the- 
 same reason and also because there is a specific penalty for each offense 
 against the licensing law, it seems that a sale of liquor in an unlicensed 
 house is void (c). Hamilton v. Grainger, 5 H. & N. 40. 
 
 Taylor v. Crowland Gas Co., 10 Ex. 293; 23 L. J. Ex. 254. A penalty 
 being imposed by statute on unqualified persons acting as conveyancers (d) 
 
 (a) [Miller c. Post, 1 Allen, 434; Smith C.Arnold, 106 Mass. 269; PresCott c. 
 Battersley, 119 Mass. 285; Woods c. Armstrong, 54 Ala. 150; Buxton v. Ham- 
 blen, 32 Me. 448 ; Dolson v. Hope, 7 Kan. 161 ; Lewis c. Welch, 14 N. H. 294; 
 Solomon v. Dreschler, 4 Minn, 278; Griffith v. Wells, 3 Denio, 226.] 
 
 (6) This statement differs only verbally from Mr. Benjamin's (On Sale, p. 
 432) [2d Am. ed., \ 538]. We have tried to put it in a rather more general 
 form. [Larned c. Andrews, 106 Mass. 435 ; Corning c. Abbott, 54 N. H. 469; 
 Aiken c. Blaisdell, 41 Vt. 655 ; Pangborn v. Westlake, 36 la. 546; Euckman v. 
 Bergholz, 37 N. J. L. 437 ; Strong ■„. Darling, 9 Ohio, 201 ; Favor c. Philbrick, 
 7 N. H. 326, 340; Lindsey c. Rutherford, 17 B. Mon. 245. Contra, Holt v. 
 Green, 73 Pa. St. 198 ; cp. Rafter v. Bank, Sup. Ct. Pa. ; 10 C. L. J. 436. 
 
 " We have concluded, before the rule can be applied in any case of a statute 
 prohibiting or enjoining things to be done, with a prohibition and a penalty, or 
 a penalty only for doing a thing which it forbids, that the statute must be ex- 
 amined as a whole, to find out whether or not the makers of it meant that a con- 
 tract in contravention of it should be void, or that it was not to be so:'' Harris 
 v. Runnels, 12 How. 79, 84.] 
 
 (c) For the penal enactments now in force, see the Licensing Act, 1872, 35 
 & 36 Vict., c. 94, ss. 3-8. 
 
 (d) Now by 33 & 34 Vict., c. 97, s. 60. 
 
 K ' 295 
 
233, 264 chap. vi. unlawful agreements. 
 
 263] the Court held that the object was not merely the *gain to the rev- 
 enue from the duties on certificates, but the protection of the public from 
 unqualified practitioners ; an unqualified person was therefore not allowed 
 to recover for work of this nature. Cp. Leman v. Houseley, L. R. 10 Q. 
 B. 66. 
 
 Fergusson v. Norman, 5 Bing. N. C. 76. When a pawnbroker lent money 
 ■without complying with the requirements of the statute, the loan was 
 void and he had no lien on the pledge (a). 
 
 In Stpvens v. Gourley, 7 C. B. N. S. 99 ; 29 L. J. C. P. 1, a builder was 
 not allowed to recover the price of putting up a wooden shed contrary to 
 the regulation?* imposed by the Metropolitan Building Act, 18 & 19 Vict., 
 ■c. 122. The only question in the case was whether the structure was a 
 building within the Act. But note that here the prohibition was for a pub- 
 lic purpose, namely, to guard against the risk of fire. 
 
 Burton v. Piggott, L. E. 10 Q. B. 86. By. 5 & 6 Wm. 4, c. 50, s. 46, a pen- 
 alty is imposed on any surveyor of highways who shall have an interest 
 id any contract, or sell materials, etc., for work on any highway under his 
 care, unless he first obtain a license from two justices. The effect of this 
 is that an unlicensed contract by a surveyor to perform work or supply 
 materials for any highway under his care is absolutely illegal, and the 
 justices have no discretion (under s. 44) to allow payments in respect of it. 
 
 CONTRACT NOT AVOIDED. 
 
 Bailey v. Harris, 12 Q. B. 905 ; 18 L. J. Q. B. 115. A contract of sale is 
 not void merely because the goods are liable to seizure and forfeiture to 
 the Crown under the excise laws. 
 
 Smith v. Mawhood, 14 M. & W. 452. The sale of an exciseable article 
 is not avoided by the seller having omitted to paint up his name on the 
 licensed premises as required by 6 Geo. 4, c. 81, s, 25. Probably this de- 
 cision would govern the construction of the very similar enactment in the 
 Licensing Act, 1872 (35 & 36 Vict., c. 94, s. 11). 
 
 Smith v. Lindo, 4 C. B. N. S. 395, in Ex. Ch. 5 C. B. N. S. 587. One who 
 acts as a broker in the city of London without being licensed under 6 Ann., 
 c. 68 (Rev. Stat. : al. 16) and 57 Geo. 3, c. lx. (/)) can not recover any com- 
 mission, but a purchase of shares made by him in the market is not void; 
 264] and if he has to pay the purchase-money *by the usage of the 
 market, 'he can recover from his principal the money so paid. 
 
 (a) The present Pawnbrokers Act (1872; 35 & 36 Vict. c. 93, s. 51) enacts that 
 an offense against the Act by a pawnbroker, not being an offense against any 
 provision relating to licenses, shall not avoid the contract or deprive him of his 
 lien. 
 
 (6) These acts are repealed as to the power of the city court to make rules, 
 etc., but not as to the necessity of brokers being admitted, by the somewhat 
 obscurely framed London Brokers Relief Act, 1870, 33 & 34 Vict., c. 60. 
 296 
 
WAGERS. 2Mr 
 
 And see further, as to statutory prohibitions of this kind, Benjamin on 
 Sale, 4:27-433 ; [2d Am. ed., § 530, sqq.] 
 
 And in general an agreement which the law forbids to be made 
 is void if made. But an agreement forbidden by statute may be 
 saved from being void by the statute itself, and on the other hand 
 an agreement made void or not enforceable by statute is not neces- 
 sarily illegal. An agreement may be forbidden without being void, 
 or void without being forbidden. 
 
 (g)\ Where a statute forbids an agreement, but says that if made 
 it shall not be void, then if made it is a contract which the Court, 
 must enforce- (a). 
 
 By 1 & 2 Vict. c. 106, it is unlawful for a spiritual person to en- 
 gage in trade, and the ecclesiastical court may inflict penalties for 
 it. But by s. 31 a contract is not to be void by reason only of be- 
 ing entered into by a spiritual person contrary to the Act. It was 
 -contended without success in Lewis v. Bright (b) that this proviso 
 could not apply when the other party knew with whom he was 
 dealing. But the Court held that the knowledge of the other party 
 was immaterial ; the legislature meant to provide against the scan- 
 dal of such a defense being set up. And Brie, J., said that one 
 main purpose of the law was to make people perform their contracts, 
 and in this case it fortunately could be carried out. 
 
 (h). Where no penalty is imposed, and the intention of the leg- 
 islature appears to be simply that the agreement is not to be en- 
 forced, there neither the agreement itself nor the performance of it 
 is to be treated as unlawful for any other purpose (c). 
 
 Modern legislation has produced some very curious results of this 
 kind. In several cases the agreement can not-even be called void, 
 being good and recognizable by the law for some purposes, or for 
 every purpose other than that of creating a right of action. These 
 cases are reserved for a special chapter (d). 
 
 (a) [McMahon v. Borden, 39 Conn. 316; Vining v. Bricker, 14 O. S. 331; 
 Pangborn v. Westlake, 36 la. 646.] 
 (6) 4 E. & B. 917 ; 24 L. J. Q. B. 191. 
 
 (c) [Johnson v. Meeker, 1 Wis. 436.] 
 
 (d) See eh. XII., On Agreements of Imperfect Obligation. The distinction 
 between an enactment which imposes a penalty without making the transac- 
 tion void, and one which makes the forbidden transaction void, is expressed in 
 the civil law by the terms (which are classical) minus quam perfecta lex and 
 perfecta lex. (See Sav. Syst. 4. 550.) A constitution of Theodosius and Valen- 
 Tiiniaii (Cod. 1. 14. de leg. 5) enjoined, that all prohibitory enactments were to 
 
 297 
 
265 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 265] *In the case of wagers the agreement is null and void by 
 8 & 9 Vict., c. 109, s. 18, and money won upon a wager can not bo- 
 recovered either from the loser or from a stakeholder (with a sav- 
 ing as to subscriptions or contributions for prizes or money to be- 
 awarded "to the winner of any lawful game, sport, pastime, or ex- 
 ercise;'' tbe saving extends only to cases where there is a real com- 
 petition between two or more persons (a), and the " subscription or 
 contribution " is not money deposited with a stakeholder by way 
 of wager (b). Wagers were not as such unlawful or unenforceable 
 at common law (c) (we shall have to recur to this under the head" 
 of "public policy ") : and since the statute does not create any of- 
 fense or impose any penalty, a man may still without violating any 
 law make a wager, and if be loses it pay the money or give a note- 
 for the amount. The consideration for a note so given is in point 
 of law not an illegal consideration, but merely no consideration at 
 all. The difference is important to the subsequent holder of such 
 a note. If the transaction between the original parties were fraud- 
 ulent or in the proper sense illegal, the burden of proof would be 
 on the holder to show that he was in fact a holder for value (d) ;. 
 but here the ordinary presumption in favor of the holder of a ne- 
 gotiable instrument is not excluded (e). In like manner "if a 
 party loses a wager and requests another to pay it for him, he is 
 
 be construed as avoiding the transaction prohibited by them (that is, as leges- 
 perftsctae), whether it were so expressed or not. 
 
 (a) E.g. a wager that a horse will trot eighteen miles in an hour is not- 
 ■within it, as there can be no winner in the true sense of the clause: Batson v. 
 Newman (C. A.), 1 C. P. D. 573. 
 
 (b) Diggle v. Higgs (C. A.), 2 Ex. D. 422; [Trimble v. Hill, 5 App. Cas. 342.]- 
 
 (c) [Campbell' v. Richardson, 10 Johns. 406; Boss v. Green, 4 Harringt. 308} 
 Smith v. Smith, 21 111, 244; Beadles v. Bless, 27 111. 320; Shepperd v. Sawyer,. 
 2 Murphey, 26; McElroy v. Carmiehael, 6 Tex. 454; Johnson v. Fall, 6 Cal. 
 359 ; Dewees v. Miller, 5 Harringt. 347. 
 
 In some states, however, all wagers have been declared to be unenforceable 
 at common law on grounds of public policy. Kice v. Gist, 1 Strobh. L. 82; 
 Winchester v. Nutter, 52 N. H. 507; Edgell v. McLaughlin, 6 Whart. 176; 
 Col lamer v. Ray, 2 Vt. 144.] 
 
 (</) [Sistermans v. field, 9 Gray, 331 ; Smith v. Livingston, 111- Mass. 342; 
 Pastor v. Coit, 5 Mich. 27; Bottomly v. Goldsmith, 36 Mich. 27; Sperry v.- 
 Spulding, 45 Cal. 544; Kellogg v. Curtis, 69 Me. 212; 1 Daniel on Neg. Inst., 
 \l 166, 198, 815.] 
 
 (e) Fitch v. Jones, 5 E, & B. 238; 24 L. J. Q. B. 293, see judgments of Lords. 
 Campbell, C. J. and Erie, J. 
 298 
 
IMMORAL AGREEMENTS. 26(P 
 
 liable to the party so paying it for money paid at his request;" an- 
 wher%a broker is employed in fictitious dealings in shares which 
 are really wagers on the price of shares, and according to custom 
 himself pays the amount due (a). This goes farther than an earlier 
 case in which it was held, in a somewhat guarded manner, that 
 payment by the drawer of racing debts of the acceptor is a good 
 consideration for a bill of exchange (b). 
 
 But under another modern statute (5 & 6 Wm. 4, c. 41, s. 1) se- 
 curities for money won at gaming or betting on games are treated 
 as given for an illegal consideration (c). 
 
 *It would be inappropriate to the general purpose of this [266 
 work, as well as impracticable within its limits, to enter in detail 
 upon the contents or construction of the statutes which prohibit or- 
 affect various kinds of contracts by regulating particular professions 
 and occupations or otherwise. It has been attempted, however, to 
 make some collection of them in an appendix to this chaj)ter. The- 
 writer does not suppose the catalogue to be complete, neither does 
 he profess to have studied or even verified every one of the enact- 
 ments referred to. On the contrary he has made free use of the 
 index to the Eevised Statutes, and has deemed himself entitled to 
 assume its correctness. 
 
 The rules and principles of law which disallow agreements 
 whose object is to contravene or evade an Act of Parliament do not 
 apply to private Acts, so far as these are in the nature of agreements 
 between parties. If any of the persons interested make arrange- 
 ments between themselves to waive or vary provisions in a private- 
 Act relating only to their own interests, it can not be objected to 
 
 (a) Rosewarne v. Billing, 15 C. B. N. S. 316; 83 L. J. C. P. 55. [See Thacker 
 v. Hardy, 4 Q. B. D. 685 ; Lehman v. Strassburger, 2 Woods. 554, 563; Warren 
 v. Hewitt, 45 Ga. 501; Williams v. Carr, 80 N. C. 294. Cp. in re Green, 7 Bias.. 
 338; Fareira v. Gabell, 89 Pa. St. 89.] 
 
 (6) Oulds v. Harrison, 10 Ex. 572, 577. As to recovering money deposited, 
 with a stakeholder, see p. 330 below. 
 
 (c) [But this does not prevent a recovery for money laid out at the request 
 of the debtor in payment of a debt so incurred by him; in re Lister, 8 Cb. D. 
 754; White v. Tarborough, 16 Ala. 109 ; Jones v. Sevier, 1 Litt. 50; Mooring- 
 v. Stanton, Mart. (N. C.) 52; English v. Young, 10 B. Mon. 141; Greathouse= 
 v. Throckmorton, 7 J. J. Marsh. 16; and see, Poindexter v. Davis, 67 N. C. 112;; 
 op. Scollans v. Elynn, 120 Mass. 271; Hanauer v. Doane, 12 Wall. 342, 345.] 
 
 299 
 
"267 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 such an agreement that it is in derogation of, or an attempt 
 to repeal the Act (a). 
 
 B. Agreements contrary to morals or good manners. 
 
 It is not every kind of immoral object or intention that will viti- 
 ate an agreement in a court of justice. When we call a thing im- 
 moral in a legal sense we do not mean so much that it is ethically- 
 wrong as that according to the common understanding of reason- 
 able men it would be a scandal for a court of justice to treat it as 
 lawful or indifferent, though the transaction may not come within 
 any positive prohibition or penalty. What sort of things fall 
 within this description is in a general way obvious enough. And 
 the law might well stand substantially as it is, according to modern 
 decisions at any rate, upon this ground alone. Some complication 
 has been introduced, however, by the influence of ecclesiastical 
 law, which on certain points has been very marked, and which has 
 certainly brought in a tendency to treat these cases in a peculiar 
 manner, to mix up the principles of ordinary social morality with 
 267] considerations of a different *kind, and with the help of 
 those considerations to push them sometimes to extreme conclu- 
 sions. Having regard to the large powers formerly exercised by 
 spiritual courts in the control of opinions and conduct, and techni- 
 cal^' still subsisting, it seems certain that every thing which our 
 civil courts recognize as immoral is an offense against ecclesiastical 
 law. Perhaps, indeed, the converse proposition is theoretically 
 true, so far as the ecclesiastical law is not directly contrary to the 
 common law (b). But this last question may be left aside as 
 merely curious. 
 
 As a matter of fact sexual immorality, which formerly was and 
 in theory still is one of the chief subjects of ecclesiastical jurisdic- 
 tion, is the only or almost the only kind of immorality of which 
 the common law takes notice as such. Probably drunkenness 
 would be on the same footing. It is conceived, for example, that a 
 sale of intoxicating liquors to a man who then and there avowed 
 his intention of making himself or others drunk with it would be 
 void at common law. The actual cases of sale of goods and the 
 like for immoral purposes, on whose analogy this hypothetical one 
 
 (<z) Savin v. Hoylake Ry. Co., L. K. 1 Ex. 9. Cp. and dist. Shaw's claim, 10 
 Ch. 177. 
 
 (b) Cp. Lord Westbury's remarks in Hunt v. Hunt, 4 D. F. J. at pp. 226-8, 
 :233. 
 
 300 
 
IMMORAL AGREEMENTS. 268 
 
 is put, depend on the principles applicable to unlawful transactions 
 in general, and are accordingly reserved for the last part of this 
 chapter. Putting apart for the present these cases of indirectly 
 immoral agreements, as they may be called, we find that agree- 
 ments are held directly immoral in the limited sense above men- 
 tioned, on one of two grounds : as providing for or tending to il- 
 licit cohabitation, or as tending to disturb or prejudice the status 
 of lawful marriage ("in derogation, of the marriage contract" as 
 it is sometimes expressed). 
 
 With regard to the first class, the main principle is this. The 
 promise or expectation of future illicit cohabitation is an unlawful 
 consideration, and an agreement founded on it is void (a). Past 
 cohabitation is not an unlawful consideration ; indeed there may 
 in some circumstances be a moral obligation on the man to provide 
 for the woman ; but the general rule applies (6) that a past exe- 
 cuted consideration, whether such as to give rise *to a moral [268 
 duty or not, is equivalent in law to no consideration at all. An 
 agreement made on no other consideration than past cohabitation 
 is merely voluntary, and is in the same plight as any other volun- 
 tary agreement. If under seal it is binding and can be en- 
 forced (e), otherwise not (d). The existence of an express agree- 
 ment to discontinue the illicit cohabitation, which in law is merely 
 superfluous and adds nothing at all (e) — or the fact of the defend- 
 ant having previously seduced the plaintiff, which " adds nothing 
 but an executed consideration resting on moral grounds only," — 
 can make no difference in this respect (d). 
 
 The manner in which these principles are applied was thus 
 stated in a recent case by Lord Selborne : — 
 
 " Most of the older authorities on the subject of contracts founded on 
 immoral consideration are collected in the note to Benyon v. Nettle- 
 
 (a) [Walker v. Gregory, 36 Ala, 180.] 
 
 (b) But the rule is modern (Oh. IV., p. 157, above), and the earlier cases on 
 this subject belong to a time when a different doctrine prevailed; they there- 
 fore discuss matters which in the modern view are simply irrelevant, e.g., the 
 previous character of the parties. The phrase praemium pudicitiae comes 
 from this period. 
 
 (c) Gray v. Mathias, 5 Ves. 286; [Brown v. Kinsey, 81 N. 0. 245.] 
 
 (d) Beamont v. Beeve, 8 Q. B. 483 ; [Singleton v. Bremar, Harper, 201 ; con- 
 tra, Shenk v. Mingle, 13 S. & B. 29.] 
 
 (e) [Such an agreement suggests the question : How could one of the parties- 
 thereto alone break it ?] 
 
 301 
 
:269 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 fold (a). Their results may be . thus stated : 1. Bonds or covenants 
 founded on past cohabitation, whether adulterous (6), incestuous, or sim- 
 ply immoral, are valid in law and not liable (unless there are other ele- 
 ments in the case) to be set aside in equity. 2. Such bonds or covenants, 
 if given in consideration of future cohabitation, are void in law (c), and 
 ■therefore of course also void in equity. 3. Relief can not be given 
 against any such bonds or covenants in equity if the illegal consideration 
 appears on the face of the instrument (d). 4. If an illegal consideration 
 -does not appear on the face of the instrument, the objection of particeps 
 criminis will not prevail against a bill of discovery in equity in aid of the 
 defense to an action at law (e) [this is now of little or no consequence, 
 owing to the changes in procedure]. 5. Under some (but not under 
 all) circumstances when the consideration is unlawful, and does not ap- 
 pear on the face of the instrument, relief may be given to a particeps 
 . criminis in equity " (J). 
 
 The exception alluded to in the last sentence is probably this : 
 that "where a party to the illegal or immoral purpose comes him- 
 self to be relieved from the obligation he has contracted in respect 
 269] of it, *he must state distinctly and exclusively such grounds 
 of relief as the Court can legally attend to (g). He must not put 
 his case on the ground of an immoral consideration having in fact 
 failed, or complain that the instrument does not correctly express 
 the terms of an immoral agreement (h). 
 
 Where a security is given on account of past cohabitation, and the 
 illicit connection is afterwards resumed, or even is never broken 
 off. the Court will not presume from that fact alone that the real 
 consideration was future as well as past cohabitation, nor therefore 
 treat the deed as invalid (i) 
 
 There existed a notion that in some cases the legal personal 
 representative of a party to an immoral agreement might have 
 
 (a) 3 Mac. & G. 94, 100. (b) Kaye v. Moore, 1 Sim. & St. 61. 
 
 (c) Walker v. Perkins, 3 Burr. 1568. 
 
 (d) Gray v. Mathias, 5 Ves. 286; Smyth v. Griffin, 13 Sim. 245, appears to 
 be. really nothing else than an instance of the same rule. The rule is or was a 
 general one: Simpson v. Lord Howden, 3 My. & Cr. 97, 102. 
 
 (e) Benyon v. Nettlefold, supra. (f) Ayerst v. Jenkins, 16 Bq. 275, 282. 
 (g) Batty v. Chester, 5 Beav. 103, 109. 
 
 (/?) Semble, relief will not be given if it appears that the immoral considera- 
 tion has been executed: Sismey v. Eley, 17 Sim. 1 : but the case is hardly intelli- 
 gible. 
 
 (i) Gray v. Mathias, 5 Ves. 286 ; Hall v. Palmer, 3 Ha. 532 ; [Brown v. Kin- 
 ney, 81 N. C. 245; cp. Trovinger v. McBurney, 5 Cow. 253.] 
 302 
 
AGREEMENTS TOR SEPARATION. 270 
 
 3t sot .iside, though no relief would have been given to the party 
 timself in his lifetime ; but this has been lately pronounced " er- 
 roneous and contrary to law " (a). It must be borne in mind that 
 the whole doctrine applies to executory agreements only. An actual 
 "transfer of property, which is on the face of it " a completed vol- 
 untary gift, valid and irrevocable in law " and confers an absolute 
 beneficial interest, can not be afterwards impeached either by the 
 settlor or by his representatives, though in fact made on an immoral 
 •consideration (a). 
 
 Where parties who have been living together in illicit cohabi- 
 tation separate, and the man covenants to pay an annuity to the 
 woman, with a proviso that the annuity shall cease or the deed 
 shall be void if the parties live together again, there the covenant 
 is valid as a simple voluntary covenant to pay an annuity, but 
 the proviso is wholly void. It makes no difference, of course, if 
 the parties, being within the prohibited degrees of affinity, have 
 gone through the form of marriage, and the deed is in the ordinary 
 form of a separation deed between husband and wife (6). When 
 the parties are really married such a proviso is usual, but superflu- 
 ous, for the deed is in any case avoided by the parties afterwards 
 living together (c). This brings us to the second *branch [270 
 of this topic, namely, the validity of separation deeds and agree- 
 ments for separation. 
 
 Both the history of the subject and the present state of the law 
 will be found very clearly set forth in Lord Westbury's judgment 
 in Hunt v. Hunt (d). Prom the ecclesiastical point of view mar- 
 riage was a sacrament creating an indissoluble relation. The duties 
 attaching to that relation were " of the highest possible religious 
 
 (o) Ayerst v. Jenkins, 16 Eq. 275, 281, 284; [Marksbury v. Taylor, 10 Bush, 
 ■619 ; Denton v. English, 2 Nott & MeC. 581 ; Fletcher v. Watson, 7 Gratt. 1, 
 16; White v. Hunter, 3 Post. 128; Bivins v. Jarnigan, 59 Tenn. 282; Gisaf v. 
 JSTeval, 81 Pa. St. 354.] 
 
 (6) Ex parte Naden, 9 Oh. 670. 
 
 (c) Westmeath v. Westmeath, 1 Dow. & CI. 519; [Shelthar v. Gregory, 2 
 Wend. 422; Wells v. Stout, 9 Cal. 479, 498; Chapman v. Gray, 8 Ga. 341, 349; 
 Carson v. Murray, 3 Paige, 483. But not if the agreement for separation 
 itself provides to the contrary: Walker v. Walker, 9 Wall. 743; Walker v. 
 Beal, 3 Cliff. 155. And see Hitner's Appeal, 54 Pa. St. 110.] 
 
 (d) 4 D. F. J. 221. The case was taken to the House of Lords, but the pro- 
 ceedings came to an end without any decision by the death of the wife. See 1 
 Sm. L. C. 391 ; [7th Am. ed. 678.] 
 
 303 
 
270 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 obligation " and paramount to the will of the parties. In ecclesi- 
 astical courts an agreement or provision for a voluntary separation 
 present or future was simply an agreement to commit a continuing 
 breach of duties with which no secular authority could meddle, 
 and therefore was illegal and void. 
 
 For a long while all causes touching marriage even collaterally 
 were claimed as within the exclusive jurisdiction of those courts. 
 The sweeping character and the gradual decay of such claims have 
 already been illustrated by cases we have had occasion to cite from 
 the Year Books in other places. In later times the ecclesiastical 
 "view of marriage was still upheld, so far as the remaining ecclesi- 
 astical jurisdiction could uphold it (a), and continued to have much 
 influence on the opinions of civil courts; the amount of that influ- 
 ence is indeed somewhat understated in Lord Westbury's exposition. 
 But the common law, when once its jurisdiction in such matters- 
 was settled, never adopted the ecclesiastical theory to the full ex- 
 tent. A contract providing for and fixing the terms of an imme- 
 diate separation is treated like any other legal contract. It must 
 satisfy the ordinary condition of being made between competent 
 parties, and the wife can not contract with her husband ; but even 
 this difficulty is in certain exceptional cases not insuperable (p. 62 
 above) and it is generally circumvented by the contract being" 
 made between the husband and a trustee for the wife. Being good 
 and enforceable at Ia\f, the contract is also good and enforceable 
 in equity, nor is there any reason for refusing to enforce it by any 
 of the peculiar remedies of equity (b). In Hunt v. Hunt the hus- 
 
 («) See 4 D. F. J. 235-8. 
 
 (J) [Besant v. Wood, 12 Ch. D. 605. That agreements for separation are not 
 ■void as being against public policy is firmly established in this country ; Wal- 
 ker v. Walker, 9 Wall. 743; Pox v. Davis, 113 Mass. 255; Bettle v. Wilson, 14 
 Ohio, 257; Chapman v. Gray, 8 Ga. 341 ; Wells v. Stout, 9 0*1. 479; Carson v. 
 Murray, 3 Paige, 483; Dillinger's Appeal, 35 Pa. St. 357; Loud v. Loud, 4 
 Bush, 453 ; Keed v. Beazley, 1 Blackf. 97 ; Goddard v. Beebe, 4 Greene (Ia.),i 
 J26; Nichols v. Palmer, 5 Day, 47. 
 
 Although it has been held that an agreement for separation made directly 
 between Husband and wife, without the intervention of a trustee, is void — 
 Simpson v. Simpson, 4 Dana, 140; Carter v. Carter, 14 S. & M. 59 — the weight 
 of authority is to the contrary: Thomas v. Brown, 10 O. S. 247; Garver v. Mil- 
 ler, 16 O. S. 527 ; Randall v. Randall, 37 Mich. 563; Dutton v. Dutton, 30 Ind.. 
 452 ; Hutton v. Hutton's Adm'r., 3 Pa. St. 100 ; supra, 62. 
 
 The fact that husband and wife are living apart, pursuant to an agreement 
 304 
 
AGREEMENTS FOR SEPARATION. 271 
 
 band was restrained from suing in the Divorce Court for restitution. 
 of conjugal rights in violation of his covenant in a *separa- [271 
 tion deed (a), on the authority of the decision of the House of 
 Lords (b) which had already established that the Court may order- 
 specific performance of an agreement to execute a separaiion deed 
 containing such a covenant. The case may be taken as having: 
 finally put the law on a consistent and intelligible footing, though 
 not without overruling a great number of pretty strong dicta of 
 various judges in the Court of Chancery and even in the House of 
 Lords (c). But an agreement by the wife not to oppose proceed- 
 ings for a divorce pending at the suit of the husband is void, be- 
 ing not only in derogation of the marriage contract, but a collu- 
 sive agreement to evade the due administration of justice (d). 
 
 We have seen that when it is sought to obtain the specific per- 
 formance of a contract the question of consideration is always ma- 
 terial, even if the instrument is under seal. Generally it is part of 
 the arrangement in these cases that the trustees shall indemnify the- 
 husband against the wife's debts, and this is an ample considera- 
 tion for a promise on the husband's part to make provision for the- 
 wife, and of course also for his undertaking to let her live apart 
 from him, enjoy her property separately, etc. (e). But this parti- 
 cular consideration is by no means necessary. The trustee's un- 
 dertaking to pay part of the costs of the agreement will do as well. 
 But if the agreement is to execute a separation deed containing all 
 usual and proper clauses, this includes, it seems, the usual covenant 
 for indemnifying the husband, so that the usual consideration is in, 
 fact present (/). In the earlier cases, no doubt, it was supposed 
 
 for .separation, is not a bar to a suit for divorce; Anderson v. Anderson, 1 Edw. 
 Oh. 380; J. G. v. H. G, 33 Md. 401.] 
 
 (a) This covenant could not be pleaded in the Divorce Court, which held 
 itself bound by the former ecclesiastical practice to take no notice of separation 
 deeds. [Such a plea is good now since the passage of the judicature acts;, 
 Marshall v. Marshall, 5 P. D. 19.] 
 
 (b) Wilson v. Wilson, 1 H. L. 0. 538. 
 
 (c) In St. John v. St. John, 11 Ves. 535, &c; Westmeath v. Westmeath, 1 
 Jac. 142 (Lord Bldon) ; Worrall v. Jacob, 3 Mer. 268 (Sir W. Grant) ; War- 
 rander v. Warrander, 2 CI. & 1''. 527 (Lord Brougham), 561-2 (Lord Lynd- 
 hurst). Most of these are to be found cited in the argument in Wilson v. 
 Wilson. And even since that case Vansittart v. Vansittart, 2 DeG. & J. 255> 
 (Lord Chelmsford). 
 
 (d) Hope?. Hope, 8 D. M. G. 731, 745; [see infra, p. 292, and note (e).] 
 
 (e) See Dav. Con v. 5, pt. 2, 1079. (/) Gibbs v. Harding, 5 Ch. 336. 
 
 20 305 
 
2i2 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 that the contract was made valid in substance as well as in form 
 •only by the distinct covenants between the husband and the trustee 
 as to indemnity and payment, or rather that these were the only 
 272] valid parts of the contract. But *since Wilson v. Wilson (a) 
 and Hunt. v. Hunt such a view is no longer tenable : in Lord West- 
 bury's words, "the theory of a deed of separation is that it is a 
 contract between the husband and wife through the intervention 
 •of a third party, namely the trustees, and the husband's contract 
 for the benefit of the wife is supported by the contract of the trus- 
 tees on her behalf" (6). A covenant not to sue for restitution of 
 ■conjugal rights can not be implied, and in the absence of such a 
 covenant the institution of such a suit does not discharge the other 
 party's obligations under the separation deed (c). Subsequent 
 adultery does not of itself avoid a separation deed unless the other 
 party's covenants are expressly qualified to that effect (d). A cov- 
 enant by the husband to pay an annuity to trustees for the wife so 
 'long as they shall live apart remains in force notwithstanding a 
 subsequent dissolution of the marriage on the ground of the wife's 
 adultery (e). But the concealment of past misconduct between the 
 marriage and the separation may render the arrangement voidable, 
 and so may subsequent misconduct, if the circumstances show that 
 the separation was fraudulently procured with the present inten- 
 tion of obtaining greater facilities for such misconduct (/). 
 
 A separation, or the terms of a separation, between husband and 
 ■wife can not lawfully be the subject of an agreement for pecuniary 
 consideration between the husband and third person. But in 
 the case of Jones v. Waite (g) it was decided by the Exchequer 
 Chamber and the House of Lords that the husband's execution of 
 a separation deed already drawn up in pursuance of an existing 
 
 (a) On the effect of that case see the remarks in the House of Lords in a sub- 
 sequent appeal as to the frame of the deed ; "Wilson v. "Wilson, 5 H. L. C. 40 ; 
 and by Lord "Westbury, 4 D. F. J. 234. 
 
 (J) 4 D. P. J. 240. 
 
 (c) Jee v. Thurlow, 2 B. & C. 547. 
 
 (d) lb. ; Evans v. Carrington, 2 D. F. J. 481 ; [Dixon v. Dixon, 23 M". J. Eq. 
 316; S. C, 24 N. J. Eq. 133; nor does the divorce and subsequent marriage of 
 the wife, Baker v. Cooper, 7 S. & B. 500; ep. Albee v. Wyman, 10 Gray, 222.] 
 
 (e) Oharlesworth v. Holt, L. R. 9 Ex. 38. 
 (/) Evans v. Carrington, supra. 
 
 (</) 1 Bing. N. C. 656; in Ex. Ch. 5 Bing. N. C. 341; in H. L. 9 C1.& F. 101. 
 In the Ex. Ch. both Lord Abinger and Lord Denman dissented. 
 306 
 
AGREEMENTS FOR SEPARATION. 273 
 
 agreement is a good and lawful consideration for a promise by a 
 third person. 
 
 A separation deed, as we have above said, is avoided by subse- 
 quent reconciliation and cohabitation (a). If it were not so but 
 could remain suspended in order to be revived in the event of a 
 renewed separation, it might become equivalent to a contract 
 *providing for a contingent separation at a future time ; and [273 
 rsuch a contract, as will immediately be seen, is not allowable. 
 However a substantive and absolute declaration of trust by a third 
 ^person contained in a separation deed has been held not to be 
 .avoided by a reconciliation (b). 
 
 As to all agreements or provisions for a future separation, 
 whether post-nuptial (c) or ante-nuptial (d) (e), and whether pro- 
 ceeding from the parties themselves or from another person (e), it 
 remains the rule of law that they can have no effect (/). If a hus- 
 band and wife who have been separated are reconciled, and agree 
 that in ease of a future separation the provisions of a former sepa- 
 ration deed shall be revived, this agreement is void (c). A con- 
 dition in a marriage settlement varying the disposition of the 
 income in the event of a separation is void (e). So is a limitation 
 over (being in substance a forfeiture of the wife's life interest) in 
 the event of her living separate from her husband through any 
 fault of her own : though it might be good, it seems, if the event 
 were limited to misconduct such as would be a ground for divorce 
 ■or judicial separation (d). 
 
 Likewise a deed purporting to provide for an immediate separa- 
 tion is void if the separation does not in fact take place : for this 
 shows that an immediate separation was not intended, but the thing 
 
 (a) [Supra, p. S69.] See also Westmeath v. Salisbury, 5 Bli. N. S. 339. 
 (6) Buffles v. Alston, 19 Eq. 539. 
 
 (c) Marquis of Westmeath v. Marchioness of Westmeath, 1 Dow. & 01. 519, 
 -641 ; Westmeath v. Salisbury, 5 Bli. N. S. 339, 393. 
 
 (d) H. v. W., 3 K. & J. 382. Some of the reasons given in thisc ase (at p. 
 386) can not, since Hunt v. Hunt, be supported. 
 
 (e) Cartwright v. Cartwright, 3 D. M. G. 982 : note that this and the case 
 last cited were after Wilson v. Wilson. 
 
 (/) [People v. Mercein, 8 Paige, 47, 68 j Gaine's Adm'x.w. Poor, 3 Met. (Ky.) 
 .603, 506-7.] 
 
 307 
 
274 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 was in truth a device to provide for a future separation (a). Nor- 
 can such a deed be supported as a voluntary settlement (6). 
 
 The distinction rests on the following ground. An agreement- 
 for an immediate separation is made to meet a state of things which, 
 however undesirable in itself, has in fact become inevitable. Still 
 that state of things is abnormal and not to be contemplated before- 
 hand. " It is forbidden to provide for the possible dissolution of 
 274] the marriage contract, which the policy *of the law is to pre- 
 serve intact and inviolate " (c). Or in other words, to allow validity 
 to provisions for a future separation would be to allow the parties in 
 effect to make the contract of marriage determinable on condition* 
 fixed beforehand by themselves (d). 
 
 It is a well established rule that no enforceable right can be ac- 
 quired by a blasphemous, seditious, or indecent publication, whether 
 in words or in writing, or by any contract in relation thereto (e) ; 
 but it does not really belong to the present head. The ground on 
 which the cases proceed is that the publication is or would be a 
 criminal offense; not merely immoral, but illegal in the strict sense. 
 The criminal law prohibits it as malum in se, and the civil law takes 
 it from the criminal law as malum prohibitum, and refuses to recog- 
 nize it as the origin of any right (/). Then the decisions in equity 
 profess^ simply to follow the law by refusing in a doubtful case to 
 give the aid of equitable remedies to alleged legal rights until the 
 existence of the legal right is ascertained (g). It would perhaps 
 
 (a) Hindley v. Marquis of Westmeath, 6 B. & C. 200; confirmed by West- 
 meath «. Salisbury, 5 Bli. N. S. 339, 395-7. 
 (6) Bindley v. Mulloney, 7 Eq. 343. 
 
 (c) 3 K. & J. 382. 
 
 (d) Agreements between husband and wife contemplating a future judicial 
 separation (separation de corps) are void in French law: Sirey & Gilbert on 
 Code < iv. art. 1133, no. 55. 
 
 (ei The somewhat analogous question — "Will the law protect the trade mark, 
 of an article intended to deceive the public ? — is left open by Estcourt v. Est— 
 court Hop Essence Co., 10 Ch. 276. [That such a trade mark will not be pro- 
 tected, see Laird v. Wilder, 9 Bush, 131 ; Palmer v. Harris, 60 Pa. St. 156 ; Sea- 
 bury v. Grosvenoii, 14 Blatchf. 262 ; Connell v. Reed, Sup. Ct. Mass., 10 C. L. 
 J. 308.J 
 
 (/> E.g. StockdiaOe v. Onwhyn, 5 B. & C. 173i 
 
 (g) Southey v. Sherwood, 2 Mer. 435 : Laurence v. Smith, Jac. 471. For a 
 full account of the cases, see Shortt on the Law relating to Works of Litera- 
 ture and Art, pp. 3-11. 
 308 
 
DOCTRINE OF PUBLIC POLICY. 275 
 
 3be difficult to assert as an abstract proposition that a Court admin- 
 istering civil justice might not conceivably pronounce a writing or 
 •discourse immoral which yet could not be the subject of criminal 
 proceedings. But we do not know of such a jurisdiction having 
 ever in fact been exercised ; and considering the very wide scope 
 of the criminal law in this behalf (a), it seems unlikely that there 
 should arise any occasion for it. Some expressions are to be found 
 which look like claims on the part of purely civil courts to exercise 
 a general moral censorship apart from any reference to the criminal 
 law. But these are overruled by modern authority. At the present day 
 it is not true that "the Court of Chancery has asuperintendencyover 
 all books, and might in a summary *way restrain the printing [275 
 or publishing any that contained reflections on religion or moral- 
 ity," as was once laid down by Lord Macclesfield; or that "the 
 Lord Chancellor would grant an injunction against the exhibition 
 of a libelous picture," as was laid down by Lord Bllenborough (£>). 
 On the whole one may safely say that for all practical purposes the 
 civil law is determined by and co-extensive with the criminal law 
 in these matters: the question in a given case is not simply 
 whether the publication be immoral, but whether the criminal law 
 would punish it as immoral. 
 
 A very curious doctrine of legal morality has been started in 
 some of the United States since the abolition of slavery. It has 
 been held that the sale of slaves being against natural right can 
 be made valid only by positive law, and that no right of action 
 arising from it can subsist after the determination of that law (c). 
 The Supreme Court of Louisiana in particular has adjudged that 
 contracts for the sale of persons, though made in the State while 
 slavery was lawful, must now be treated as void : but the Supreme 
 Court of the United States did not hold itself bound by this view 
 
 (a) See Russell on Crimes, Bk. 2, c. 24 ; Starkie on Libel (3d ed.) cc. 33, 34 ; 
 and Stephen's Digest of the Criminal Law. arts. 91-95, 161, 172. 
 
 (6) Emperor of Austria v. Day and Kossuth, 3 D. F. J. 217, 238. 
 
 (c) Story on Contracts, I 671 _(1. 647, 5th ed.); [Wainwright v. Bridges, 19 
 La. Ann. 234; Kodriguez v. Bienvenu, 22 La. Ann. 300; Osborn v. Nicholson,, 
 1 Dill. 219; Buckner v. Street, 1 Dill. 248; Shorter v. Cobb, 39 Ga. 285. 
 ' Where the highest court of a state so decides on the general principles of pub- 
 lic policy or morality, the Supreme Court of the United States has no power of 
 Teview, Palmer v. Marston, 14 Wall. 10; but it has tho power where the decis- 
 ion of the state court is based upon a constitutional or legislative enactment, 
 passed after the contract was made, Delmas v. Insurance Co., 14 Wall. 661.] 
 
 309 
 
276 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 on appeal from the Circuit Court, and distinctly refused to adopt- 
 it, thinking that neither the Constitutional Amendment of 1866- 
 nor any thing that had happened since could [had the effect to} 
 avoid a contract good in its inception (a). 
 
 LsC- Agreements contrary to public policy. 
 
 Before we go through the different classes of agreements which- 
 are void as being of mischievous tendency in some one of certain- 
 definite ways, something must be said on the more general question- 
 of the judicial meaning of " public policy." That question is, in 
 effect, whether it is at the present day open to courts of justice to- 
 hold transactions or dispositions of property void simply because 
 in the judgment of the court it is against the public good that they- 
 should be enforced, although the grounds of such judgment may- 
 be novel. The general tendency of modern ideas is no doubt 
 against the continuance of such a jurisdiction (6). On the other- 
 276] hand there is a good deal *of modern and even recent au- 
 thority which makes it difficult to deny its continued existence. 
 
 As a matter of history, there seems to be little doubt that the- 
 doctrine of public policy, so far as regards its continued assertion 
 in a general form in modern times, if not its actual origin, arose 
 from wagers being allowed as the foundation of actions at common 
 law. Their validity was assumed without discussion until the 
 judges repented of it too late. Eegretting that wagers could be 
 sued on at all (c), they were forced to admit that wagering con- 
 tracts as such were not invalid, but set to work to discourage them* 
 so far as they could. This tbey did by becoming " astute even to 
 an extent bordering upon the ridiculous to find reasons for refusing- 
 to enforce them " in particular cases (d). 
 
 Thus a wager on the future amount of hop duty was held void,. 
 
 («) Boyce v. Tabb, 18 Wallace, 54.6 ; [White v. Hart,. 13 "Wall. 646; Osborn 
 v. Nicholson, 13 Wall. 654; Koundtree v. Baker, 52 111. 241; Calhoun v. Cal- 
 houn, 2 S. C. 283; Taylor v. Mayhew, 11 Heisk. 596; Bradford v. Jenkins, 41 
 Miss. 328.] 
 
 (A) See, for example, 1 Sm. L. C. 400 [7th Am. ed. 683-4. See per Jessell,. 
 M. B., Besant v. Wood, 12 Ch. D. 605, 620.] 
 
 (c) Good v. Elliott, 3 T. R. 693, where Buller, J., proposed (without success) 
 to hold void all wagers on events in which the parties had no interest. [See- 
 supra, p. 265, note (e).] 
 
 (rf) Per Parke, B., Egerton v. Earl Brownlow, 4 H. L. C. at p. 124; per Will- 
 iams, J., lb. 77 ; per Alderson, B., lb. 109. 
 310 
 
DOCTRINE OF PUBLIC POLICY. 277 
 
 because it might expose to all the world the amount of the public- 
 revenue, and Parliament was the only proper place for the discus- 
 sion of such matters (a). Where one proprietor of carriages for 
 hire in a town had made a bet with another that a particular per- 
 son would go to the assembly rooms in his carriage, and not the' 
 other's,, it was thought (this, however, was not strictly necessary 
 to the decision) that the bet was void, as tending to abridge the 
 freedom of one of the public in choosing his own conveyance, and 
 to expose him to "the inconvenience of being importuned by rival 
 coachmen" (b~). A wager on the duration of the life pf Napoleon 
 was void because it gave the plaintiff an interest in keeping the- 
 king's enemy alive, and also because it give the defendant an in- 
 terest in compassing his death by means other than lawful war- 
 fare (c). This was probably the extreme case, and has been re- 
 marked on as of doubtful authority (d,~). But the Judicial Com- 
 mittee held in 1848, on an Indian appeal (the Act 8 & 9 Vict. c. 
 109 not *extending to British India) that a wager on the price [277 
 of opium at the next Government sale of opium was not illegal (e). 
 The common law was thus stated by Lord Campbell in delivering 
 the judgment : — 
 
 " I regret to say that we are bound to consider the common law of Eng- 
 land to be that an action may be maintained on a wager, although the< 
 parties had no previous interest in the question on which it is laid, if ib 
 be not against the interests or feelings of third persons, and does not 
 lead to indecent evidence, and is not contrary to public policy. I look 
 with concern and almost with shame on the subterfuges and contrivances 
 and evasions to which Judges in England long resorted in struggling: 
 against this rule " (/). 
 
 It may surely be thought at least doubtful whether decisions so- 
 produced and so reflected upon can in our own time be entitled to 
 
 (a) Atherfold v. Beard, 2 T. R. 610. 
 
 (b) Eltham v. Kingsman, 1 B. & Aid. 683. 
 
 (c) Gilbert u.Sykes, 16 East, 150. 
 
 (d) By Alderson, B., in Egerton v. Earl Brownlow, supra, and in the Privy- 
 Council in the case next cited, 6 Moo. P. C. 312. 
 
 (e) By the Indian Contract Act, s. 30, agreements by way of wager are now 
 void, with an exception in favor of prizes for horse-racing of the value of Ks. 
 500 or upwards. 
 
 (/) Ramloll Thackoorseydassi). Soojumnull Dhondmull, 6 Moo. P. C. 300, 310. 
 [Supra, p. 265, note (cj. An agreement, in form an executory contract for the 
 sale of chattels, but upon an understanding between the vendor and purchaser, 
 •when the contract is made, that the property is not to be delivered, but that oner 
 
 311 
 
278 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 any regard at all. But it has been said that they establish a dis- 
 tinction of importance between cases Where the parties " have a 
 real interest in the matter, and an apparent right to deal with 
 it " and where they " have no interest but what they themselves 
 create by the contract;" that in the former case the agreement is 
 void only if "directly opposed to public welfare," but in. the lat- 
 ter "any tendency whatever to public mischief," will render it 
 void (a). It is difficult to accept this distinction^ or at any rate to 
 see to what class of contracts other than wagers it applies. In the 
 case of a lease for lives (to take an instance often used) the par- 
 ties " have no interest but what they themselves create by the 
 contract" in the lives named in the lease : they have not any " ap- 
 parent right to deal with" the length of the Sovereign's or other 
 illustrious persons' lives as a term of their contract: yet it has 
 never been doubted that the contract is perfectly good. 
 
 The leading modern authority on "public policy" is the great 
 case of Egerton v. Earl Brownlow (b). This, although not a case 
 of contract, can not possibly be left without special mention. By 
 the will of the seventh Earl of Bridgewater a series of life 
 278] *interests (c) were limited, subject to provisos which were 
 generally called conditions, but were really conditional limitations 
 by way of shifting uses upon the preceding estates (d). The 
 effect of these was that if the possessor for the time being of the 
 
 will pay and the other receive the difference between the contract price and 
 the market price at the date of performance, is a mere wager and void: Saw- 
 yer v. Taggart, 14 Bush, 727; Gregory v. Wendell, 39 Mich. 337; North v. 
 Phillips, 89 Pa. St. 250; Pickering v. Cease, 79 111. 328 ; Lyon v. Culbertson, 83 
 111. 33, 38; Ex parte Toung, 6 Biss. 53; In re Green, 7 Biss. 338; Rudolph v. 
 Winters, 7 Neb. 125; Brua's Appeal, 55 Pa. St. 294; Kirkpatrick v. Bonsall, 72 
 Pa. St. 155; Bigelow v. Benedict, 70 N. Y. 202; Eumsey v. Berry, 65 Me. 570; 
 Barnard v. Backhouse, Sup. Ct. Wis., 11 C. L. J. 56. 
 
 If either party intends bona fide to perform the agreement, the intention of 
 the other to settle by a payment of differences will not make it void as a wager : 
 Sawyer v. Taggart, 14 Bush, 727 ; Pixloy v. Boynlon, 79 111, 351 ; Gregory v. 
 Wendell, 40 Mich. 432; Lehmann v. Strassburger, 2 Woods. 554; Clarke v. 
 Poss, 7 Biss. 540; Williams v. Carr, 80 N. C. 294; Marx v. Ellsworth, Com. 
 App. Tex., 22 Alb. L. J. 19.] 
 
 (a) 4 H. L. C. 148. (6) 4 H. L. C. 1-250. 
 
 (c) Not estates of freehold with remainder to first and other sons in tail in 
 the usual way, but a chattel interest for 99 years if the taker should so long 
 live, remainder to the heirs male of his body. See Dav. Conv. 3, pt. 1. 351. 
 
 (d) See Lord St- Leonards' judgment, 4 H. L. C. at p. 208. 
 
 312 
 
DOCTRINE OF PUBLIC POLICY. 279 
 
 -estates did not acquire the title of Marquis or Duke of Bridge- 
 water, or did accept any inferior title, the estates were to go over. 
 The House of Lords held by four to one, in accordance with the 
 opinions of two judges (a) against eight (b) that the limitations 
 were void as being against public policy. 
 
 , The whole subject was much discussed in the opinions on both 
 sides. The greater part of the judges insisted on such considera- 
 tions as the danger of limiting dispositions of property on specula- 
 tive notions of impolicy (c) ; the vague and unsatisfactory character 
 of a jurisdiction founded on general opinions of political expedience, 
 as distinguished from a legitimate use of the policy (ie. general in- 
 tention, as we said above) of a particular law as the key to its con- 
 struction, and the confusion of judicial and legislative functions to 
 which the exercise of such a jurisdiction would lead (d) ; and the 
 fallacy of supposing an object unlawful because it might possibly be 
 sought by unlawful means, when no intention to use such means ap- 
 peared (e). On the other hand it was pointed out that these limita- 
 tions held out " a direct and powerful temptation to the exercise of 
 corrupt means of obtaining the particular dignity" (/) ; that besides 
 this the restraint on accepting any other dignity, even if it did not 
 amount to forbidding a subject to obey the lawful commands of 
 the Sovereign (g~), tended in possible events to set private interest hi 
 ^opposition to public duty (7i) ; and that the provisos as a [27^ 
 whole were fitted to bias the political and public conduct of the 
 persons interested, and introduce improper motives into it (i), and 
 also to embarrass the advisers of the Crown, and influence them to 
 recommend the grant of a peerage or of promotion in the peerage 
 
 (a) Pollock, C. B., and Piatt, B. 
 
 (J) Oompton, "Williams, Cresswell, Talfourd, Wightman, and Erie, J J., Al- 
 -derson and Parke, BB. Coleridge, J., thought the limitations good in part only. 
 
 (c) Crompton, J., at p. 68. 
 
 (d) Alderson, B., at p. 106; Parke, B., at p. 123. 
 
 (e) Williams, J., at p. 77; Parke, B., at p. 124. 
 
 (/) Piatt, B., at p. 99; Lord St. Leonards at p. 232; Lord Brougham at 
 p. 172. 
 
 (g) On this point the prevailing opinion, on the whole, was that a subject can 
 not refuse a peerage (cp. 5 Eic. 2. St. 2. c. 4), but can not be compelled to ac- 
 cept it by any particular title, or at all events can not be compelled to accept 
 .promotion by any particular new title if he is a peer already. 
 
 (A) Pollock, O. B., at p. 151. (i) Lord Lyndhurst, at p. 163. 
 
 313 
 
2S0 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 forreasons other than merit (a). Lord Lyndhurst, Lord Brougham,. 
 Lord Truro and Lord St. Leonards adopted this view. Lord! 
 Cranworth dissented, adhering to his opinion in the Court below 
 (b), and made the remark (which is certainly difficult to answer).* 
 that the Thellusson will, which the Courts had felt bound to up- 
 hold, was much more clearly against public policy than this. The- 
 fullest reasons on the side of the actual decision are those of Pol- 
 lock, C. B., and Lord St. Leonards. Their language is very gen- 
 eral, and they go far in the direction of claiming an almost unlim- 
 ited right of deciding cases according to the judge's view of public- 
 policy for the time being. Lord St. Leonards mentioned the fluc- 
 tuations of the decisions on agreements in restraint of trade as- 
 showing that rules of common law have been both created and. 
 modified by notions of public policy. But, assuming the state- 
 ment to be historically correct (c), the inference would seem, with- 
 all submission to so great an authority, to be grounded on a con- 
 fusion between the purely legal and the historical point of view.. 
 In theory the common law does not vary. In fact we know that- 
 it does vary (though in modern times the limits of variation are 
 narrowed), but the fact of the variation is no argument for an un- 
 limited power of judicial legislation in this more than in any other- 
 class of questions. He also said that each case was to be decided 
 •upon principle, but abstract rules were not to be laid down (d). 
 Perhaps this may be taken to mean only that (as in the case of 
 fraud) the Court is to be guided by recognized principles, but it 
 is useless to attempt a minute and exhaustive definition of the 
 cases that may fall within them: in other words, that we must. 
 280] *be content with reasoning by way of analogy rather than 
 deduction. If so, the proposition is doubtless correct and im- 
 portant (though by no means confined to this topic); but if it 
 means to say that the Court may lay down new principles of pub- 
 lie policy without any warrant even of analogy, it seems of doubt- 
 ful and dangerous latitude. But it is necessary to consider whether- 
 
 (n) Pollock, 0. B., and Lord St. Leonards, supra. 
 (S) 1 Sim. N. S. 464. 
 
 (c) In fact it seems doubtful. The cases on wagers are anomalous, as above- 
 sbown ; and as to restraint of trade it appears from the book that Hull, J., was- 
 really alone in his opinion in the Dyer's ca. in 2 H. 5. See, however, as to tbe- 
 variation of the " policy of the law " in general, Evanturel v. Evanturel, L. tt_ 
 6 P. C. at p. 29. 
 
 (d) At pp. 23&-9. 
 
 314 
 
DOCTRINE OF PUBLIC POLICY. 281 
 
 the ratio decidendi of the case does in truth require any of these - 
 -wide assertions of judicial discretion. And it is not very difficult 
 to perceive that ft does not. The limitations in question were held 
 bad because they amounted in effect to a gift of pecuniary means 
 to be used in obtaining a peerage, and offered a direct temptation 
 to the improper use of such means, and the improper admission of 
 private motives of interest in political conduct: in short, because 
 in the opinion of the Court they had a manifest tendency to the 
 prejudice of good government and the administration of public af- 
 fairs. But it is perfectly well recognized that transactions which 
 have this character are all alike void, however different in other- 
 respects. Such are champerty and maintenance, the compounding 
 of offenses and the sale of offices. The question in the particular 
 case was whether there was an apparent tendency to mischiefs of 
 this kind, or only a remote possibility of inconvenient conse- 
 quences. The decision did not create a new kind of prohibition, 
 but affirmed the substantial likeness of a very peculiar and unex- 
 ampled disposition of property to other dispositions and transac- 
 tions already known to belong to a forbidden class. And the 
 broadly expressed language of certain parts of the judgments may 
 be taken, it is submitted, as applicable only within the bounds of 
 that particular class. 
 
 Egerton v. Earl Brownlow, however, is certainly a cardinal au- 
 thority for one rule which applies in all cases of l( public policy : " 
 namely, that the tendency of the transaction at the time, not its 
 actual result, must be looked to. It was urged in vain that the 
 will of the seventh Earl of Bridgewater had in fact been in ex- 
 istence for thirty years without producing any visible ill effects (a). 
 
 The view here put forward, that there is really nothing in the 
 *case to warrant the invention of new heads of " public [281 
 policy " seems to be borne out by the remarks of the Master of the- 
 Bolls in a late case : — 
 
 " It must not be forgotten that you are not to extend arbitrarily those - 
 rules which say that a given contract is void as being against public 
 policy, because if there is one thing which more than another public 
 policy requires, it is that men of full age and competent understanding - 
 shall have the utmost liberty of contracting, and that their contracts, 
 
 (a) Op. Da Costa v. Jones, Cowp. 729. "Wager on sex of third person void, 
 as offensive to that person and tending to indecent evidence; notwithstan ding- 
 it did not appear that the person had made any objection, and the cause had in 
 fact been tried without any indecent evidence. 
 
 315 
 
.281 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 when entered into freely and voluntarily, shall be held sacred and shal 
 be enforced by courts of justice. Therefore, you have this paramount 
 public policy to consider — that you are not lightly to interfere with thii 
 freedom of contract" (a). 
 
 We now proceed to the several beads of the subject. 
 
 a. First, as to matters .concerning the commonwealth in its rela- 
 lations with foreign powers. 
 
 " On the principles of the English law it is not competent, tc 
 any" domiciled British (b) "subject to enter into a contract to dc 
 any thing which may be detrimental to the interests of his own 
 country " (c). 
 
 An agreement may be void for reasons of this kind either when 
 it is for the benefit of an enemy, or when the enforcement of it 
 would be an affront to a friendly state. 
 
 As to the first and more important branch of this rule : " It is 
 now fully established that, the presumed object of war being as 
 much to cripple the enemy's commerce as to capture his property, 
 a declaration of war imports a prohibition of commercial inter- 
 course and correspondence with the inhabitants of the enemy's 
 country, and that such intercourse, except with the license of the 
 Crown, is illegal " (d). 
 
 (a) Printing and Numerical Registering Co. v. Sampson, 19 Eq. 462, 465. 
 
 (6) The rule doesl not apply to British subjects domiciled abroad: Bell v. 
 Eeid, 1 M. & S. 726. 
 
 0) 7 E. & B. 782. 
 
 (d) Esposito v. Bowden (in Ex. Ch.) 7 E. & B. 763, 779. [" The law of na- 
 tions, as judicially declared, prohibits all intercourse between citizens of the 
 two belligerents, which is inconsistent with the state of war between their 
 ■countries; and this includes any act of voluntary submission to the enemy, or 
 receiving his protection ; as well as any act or contract which tends to increase 
 his resources ; and every kind of trading or commercial dealing or intercourse, 
 whether by transmission of money or goods, or orders for the delivery of 
 either, between the two countries, whether directly or indirectly, or through 
 the intervention of thircl persons or partnerships, or by contracts in any form 
 looking to or involving such transmission, or by insurances upon trade with or 
 by the enemy:" Kershaw v. Kelsey, 100 Mass. 561,572—573; Montgomery v. 
 United States, 15 Wall. 395; Scholfield v. Eichelberger, 7 Pet. 586; United 
 JStates v. Grossmayer, 9 Wall. 72 ; Coppell v. Hall, 7 Wall. 542, 554; The 
 Kapid, 8 Cr. 155; Perkins v. Rogers, 35 Ind. 124; Shaklett u. Polk, 51 Miss. 
 .378, 391 ; Ehodes *. Summerhill, 4 Heisk. 204; Hill v. Baker, 32 la. 302; Hen- 
 nen v. Gilman, 20 La. Ann. 241; Phillips v. Hatch, 1 Dill. 571; Habricht v. 
 .Alexander's Ex'rs., 1 Woods, 413 ; 1 Kent, 66.] 
 316 
 
TRADING WITH ENEMIES. 282" 
 
 The case of Potts v. Bell (a), decided by the Exchequer Cham- 
 ber in 1800, is the leading authority on this subject. The following 
 points were there decided : 
 
 It is a principal of the common law (5) that trading with an 
 enemy without license from the Crown is illegal. 
 
 •Purchase of goods in an enemy's country during the [282 
 war is trading with the enemy, though it be not Bhown that they 
 were actually purchased from an enemy : and an insurance of goods 
 so purchased is void. 
 
 As to insurances originally effected in time of peace : " When a 
 British subject insures against captures, the law infers that the 
 contract contains an exception of captures made by the Govern 
 ment of his own coantry " (c). 
 
 The effect of the outbreak of war upon subsisting contracts be- 
 tween subjects of the hostile states varies according to the nature 
 of the case. It maybe that the contract can be lawfully performed 
 by reason of the belligerent governments or one of them having 
 waived their strict rights: and in such case it remains valid. In 
 Clernentson v. Blessig (d), goods had been ordered of the plaintiff 
 in England by a firm at Odessa before the declaration of war with 
 Russia. By an order in Council six weeks were given after the 
 declaration of war for Russian merchant vessels to load and de- 
 part, and the plaintiff forwarded the goods for shipment in time to 
 be lawfully shipped under this order: it was held that the sale re- 
 mained good (e). 
 
 If the contract can not at once be lawfully performed, then it is 
 suspended during hostilities (/) unless the nature or objects of the 
 
 (a) 8T.R. 548. 
 
 (b) In the Admiralty it was already beyond question: see the series of pre- 
 cedents cited in Potts v. Bell. 
 
 (c) Eurtado v. Kodgers, 3 B. & P. 191, 20.); Ex parte Lee, 13 Ves. 64. 
 
 (d) 11 Ex. 135, and on the subject generally see the reporters' note, pp. 141-5. 
 
 (e) [Although a state of war actually existed before April 23, 1861, yet a 
 partnership between a resident of New York and other parties, residents of 
 Louisiana, was not dissolved by the late civil war as early as that date, and all 
 the members of the firm were bound by its acceptance of a bill of exchange 
 bearing date and accepted on that date, and payable one year thereafter; the 
 act of Congress of July 13, 1861, and the President's proclamation of August 
 16, 1861, issued under its authority, exhibiting "a clear implication that before 
 the first was enacted, and the second was issued, commercial intercourse was 
 not unlawful; that it had been permitted." Matthews v. McStea, 91 U. S. 7]- 
 
 ( f) Ex parte Boussmaker, 13 Ves. 71. 
 
 U) f 317 
 
"282 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 •contract be inconsistent with a suspension, in which case "the ei 
 feet is to dissolve the contract and to absolve both parties from fur 
 ther performance of it " (a). The outbreak of a war dissolves i 
 
 (a) Esposito v. Bowden, 7 E & B. 763, 783; 27 L. J. Q. B. 17 (in Ex. Ch.) 
 revg. s. c. 4 E. & B. 963; 24 L. J. Q. B. 210. For a later application of tin 
 same reason of convenience, cp. Geipel v. Smith, L. R. 7 Q. B. 404. A contrac 
 to carry goods has been held to be only suspended by a temporary embargo 
 though it lasted two years: Hadley v. Clarke, 8 T. B. 259; [see Palmer v. Lor 
 illard, 16 Johns. 348; Baylies v. Fettyplace, 7 Mass. 325; Odlin a. Insurance 
 Co., 2 Wash. 0. C. 312; McBride ». Insurance Co. 5 Johns. 299]. Sed. qu., ii 
 not Hadley v. Clarke virtually overruled by EspoBito v. Bowden. [In Stathan 
 v. Insurance Co., 93 IT. S. 24, the court was called upon to pass on the effect oi 
 the non-payment of the stipulated annual premium in a. policy of life" insur- 
 ance conditioned to be void on non-payment of the premium, where the failure 
 to pay was caused by the intervention of war between the territories in whict 
 the insurance company and the assured, respectively, resided, which made il 
 unlawful for them to hold intercourse. 
 
 A majority of the Court held ; 1. That such a policy " is not an insurance 
 from year to year like a common fire policy, but the premiums constitute an 
 annuity, the whole of which is the consideration for the entire insurance foi 
 life ; and the condition is a condition subsequent, making by its non-perform- 
 ance, the policy void." 2. That time is of the essence of the contract, and a 
 failure to pay involves an absolute forfeiture, but that, under the circumstances, 
 if the company insisted on a forfeiture the assured was entitled to the equita- 
 ble value of the policy arising from the premiums actually paid, i.e. the differ- 
 ence between the cost of a new policy, and the present value of the premiums 
 yet to be paid on the forfeited policy when the forfeiture occurred; cp. Craw- 
 ford v. Insurance Co., Sup. Ct. Tenn., 5 C. L. J. 100. 3. That the doctrine oi 
 revival of contracts suspended during the war, " can not be invoked to revive 
 a contract which it would be unjust or inequitable to revive, — as where (as 
 here) time is of the essence of the contract, or the parties can not be made 
 
 • equal." 
 
 Waite, C. J., and Strong, J., dissented, holding that failure to pay the annual 
 premium, when it matured, put an end to the policy notwithstanding the de- 
 fault was occasioned by the war; ace. Dillard v. Insurance Co., 44 Ga. 119; 
 Worthington v. Insurance Co., 41 Conn. 372; Tait v. Insurance Co., 4 Bigelow's 
 Life and Ace. Ins. Bep. 479. 
 
 Clifford and Hunt, J J., dissenting, held that the contract was only suspended 
 during the war, and revived when peace ensued; ace. Insurance Co. v. Duer- 
 son, 28 Gratt. 630; Insurance Co. v. Hillyard, 37 N. J. L. 444; Cohen v. Insur- 
 ance Co, 50 N. T. 610; Sands v. Insurance Co., 50 N. Y. 626; Hamilton v. 
 Insurance Co.. 9 Blatchf. 234; Insurance Co. v. Atwood's Adm'x., 24 Gratt. 
 
 497 ; Insurance Co. v. Warwick, 20 Gratt. 614 ; Statham v. Insurance Co., 45 
 
 .Miss. 581 ; Insurance Co. v. Clopton, 7 Bush, 179.] . 
 318 
 
HOSTILITIES AGAINST FRIENDLY NATIONS. 283 
 
 ■partnership previously existing between subjects of the two hostile 
 -countries (a). 
 
 In Esposito v. Bowden (b), a neutral ship was chartered to pro- 
 ceed to Odessa, and there load a cargo for an English freighter, 
 and before the ship arrived there war had broken out between Eng- 
 land and Russia, and continued till after the time when the loading 
 should have taken place : here the contract could not *be [283 
 performed without trading with the enemy, and in such a case it is 
 •convenient that it should be dissolved at once, so that the parties 
 need not wait indefinitely for the mere chance of the war coming 
 to an end, or its otherwise becoming possible to'periorm the con- 
 tract lawfully. 
 
 Questions have arisen on the validity of bills of exchange drawn 
 on England in a hostile country in time of war. Here the sub- 
 stance of the transaction has to be looked at, not merely the na- 
 tionality of the persons who are ultimately parties to an action on 
 the bill. Where a bill was drawn on England by an English pris- 
 oner in a hostile country, this was held a lawful contract, being 
 made between English subjects ; and by the necessity of the case 
 -an indorsement to an alien enemy was further held good, so that 
 be might well sue on it after the return of peace (c). But a bill 
 -drawn by an alien enemy on a domiciled British subject, and in- 
 dorsed to a British subject residing in the enemy's country, was 
 held to give no right of action even after the end of the war : for 
 this was a direct trading with the enemy on the part of the acceptor 
 (d). It seems proper to observe that these cases must be carefully 
 
 («) Griswold v. Waddington, 15 Johns. 57; in error, 16 lb. 438; [Matthews 
 v. McStea, 91 U. S. 7, 9; The William Bagaley, 5 Wall. 377, 407; Taylor v. 
 Hutchins, 25 Gratt. 536; Hubbard v. Matthews, 54 N. Y. 43, 48-49. If a 
 creditor has an agent in the country of the enemy, payment by the debtor 
 resident there to the agent is lawful ; Ward v. Smith, 7 Wall. 447 ; Buchanan 
 v. Cnrry, 19 Johns. 137 ; Kodgers v. Bass, 46 Tex. 505 ; Hale v. Wall, 22 Gratt. 
 424.] 
 
 (b) See note (a), preceding page. 
 
 (c) Antoine v. Morshead, 6 Taunt. 237 ; cp. Daubuz v. Morshead, lb. 332. 
 
 (d) Willison v. Patterson, 7 Taunt. 439. The circumstances of the indorse- 
 ment seem immaterial; [Bilgerry /». Branch, 19 Gratt. 393, 418; Moon v. Pos- 
 ter, 19 Gratt. 433, n. ; Woods v. Wilder, 43 N. Y. 164; Tarleton v. Bank, 49 
 Ala. 229; Williams v. Bank, 2 Woods, 501 ; Lacy v. Sugarman, 12 Heisk. 354. 
 Cp. United States v. Barker, 1 Paine C. 0. 156 ; Haggard v. Conkwright, 7 Bush, 
 16: A bill drawn by an alien enemy upon the subject or citizen of the adverse 
 
 319 
 
284 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 distinguished from those which relate only to the personal disability 
 of an alien enemy to sue in our courts during the war (a). 
 
 On the other hand, an agreement can not be enforced in Englauc 
 which has for its object the conduct of hostilities against a powei 
 at peace with the English government, at all events by rebellious 
 subjects of that, power who are endeavoring to establish their inde- 
 pendence, but have not yet been recognized as independent bj 
 England. This was laid down in cases arising out of loans con- 
 tracted in. this country on behalf of some of the South American 
 .Republics before they had been officially recognized. 
 
 " It is contrary to the law of nations, which in all cases of in- 
 ternational law is adopted into the municipal code of every civilized 
 country, for persons in England to enter into engagements to raise 
 money to support the subjects of a government in amity with oui 
 284:] *own in hostilities against their government, and no right oi 
 action can arise out of such a transaction" (p). 
 
 The Supreme Court of the United States has held, however, that 
 an assignment of shares in a company originally formed for a pur- 
 pose of this kind was so remotely connected with the original ille- 
 gality of the loan as not to be invalid between the parties to it (c). 
 
 It is not a " municipal offense by the law of nations " for citizens 
 of a neutral country to carry on trade with a blockaded port — that 
 is, the courts of their own country can not be expected to treat it 
 as illegal (though of course it is done at the risk of seizure, of which 
 seizure if made, the neutral trader or his government can not com- 
 plain :) and agreements having such trade for their object — e.g., a 
 
 country, in favor of a neutral, will, if no illegal use of it be intended, be good 
 in favor of the neutral against the drawer, and against the drawee if he be- 
 come acceptor ; Story on Bills, § 104.] 
 
 (a) Such are McConnell v. Hector, 3 B. & P. 113; Brandon v. Nesbitt, 6 1 
 B. 23. As to prisoners of war here, Sparenburgh v. Bannatyne, 1 B. & P. 163, 
 [That during a war, foreign or civil, an action can not be prosecuted by an en- 
 emy, residing in the enemy's territory, but must be stayed until the return of 
 peace, see Kershaw v. Kelsey, 100 Mass. 561, 563 ; Perkins v. Bogers, 35 Ind, 
 124; Belli). Chapman, 10 Johns. 183; Norris v. Doniphan, 4 Met. (Ky.) 385; 
 Sanderson v. Morgan, 39 N. Y. 231. But, if sued, as he may be, he may defend 
 in the foruta in which he is assailed; McVeigh v. The United States, 11 Wall 
 259; Buford 1 v. Speed, 11 Bush, 338; Seymour v. Bailey, 66 111. 288.] 
 
 (i) Best, C. J., De Wiitz v. Hendricks, 2 Bing. 314. Cp. Thompson v, 
 Powles, 2 Sim. 194, where the language seems unnecessarily wide; [Eenriett v 
 Chambers, 14 How. 38.] 
 
 (c) McBlair v. Gibbes, 17 Howard, 232. 
 320 
 
FOREIGN REVENUE LAWS. 285* 
 
 joint adventure in blockade-running — are accordingly valid and 
 enforceable in the courts of the neutral state (a). 
 
 Several decisions on this topic of aiding or trading with enemies- 
 have been given in the American courts in cases arising out of the- 
 Civil War (6). 
 
 It is admitted as a thing required by the comity of nations that 
 an agreement to contravene the laws of a foreign country would 
 in general be unlawful. But it is said that revenue laws (in prac- 
 tice the most important case) are excepted, and that " no country 
 ever takes notice of the revenue laws of another " (c).^ 
 
 As a general proposition, however, this is strongly disapproved 
 by most modern writers as contrary to reason and justice (d). 
 It should be noted that our courts, so far as they have acted 
 upon it, have done so to the prejudice of our own revenue quite 
 *as much as to that of foreign states. Thus a complete sale [285- 
 of goods abroad by a foreign vendor is valid, and the price may be- 
 recovered in an English court, though he knew of the buyer's in- 
 
 (a) Ex parte Chavasse, 4 D. J. S. 655; see Lord Westbury's judgment; The- 
 Helen. L. R. 1 Ad. & Ecc. 1, and American authorities there cited; Kent 
 Comm. 3. 267 ; [1. 142 & n. 1.] 
 
 lb) Texas v. White, 7 "Wall. 700 (where, however, the chief points are of 
 constitutional law); Hanauer v. Doane, 12 lb. 342; Story on Contracts, £ 744.. 
 Sprott v. U. S., 20 Wall. 459, goes beyond any thing in our books, and the dis- 
 sent of Field, J., seems well founded. [Contracts made during the late civil 
 war, in one of the Confederate States, payable in Confederate money, if not 
 made for the purpose of giving it currency, or otherwise aiding the rebellion, 
 are not, because thus payable, invalid; Thorington v. Smith, 8 Wall. 1 ; Ther 
 Confederate Note Case, 19 Wall. 548, 556; Railroad Co. v. King, 91 17. S. S ; 
 Bodes v. Patillo, 5 Bush, 271; Eivers v. Moss' Assignee, 6 Bush, 600; Rodgers 
 v. Bass, 46 Tex. 505 ; Naff v. Crawford, 1 Heisk. Ill ; Sherfy v. Argenbright, 1 
 Heisk. 128 ; Forchheimer v. Holly, 14 Fla. 239 ; Whitfield v. Riddle, 52 Ala- 
 467 ■ Green v. Sizer, 40 Miss. 530. Contra, Denney v. Johnson, 26 La. Ann. 55 ; 
 Tatham v. Clark, 25 Ark. 574. 
 
 As to the revisory power of the Supreme Court of the United States over 
 the decision of a state court on this question, see Delmas i>. Insurance Co., 14 
 Wall. 661, supra, 275, note (c). 
 
 But bonds issued for the purpose of supporting the war levied by the Con- 
 federate States do not constitute a lawful consideration for a promissory note, 
 although they were used as a circulating medium in the common and ordinary 
 business transactions of the people; Hanauer v. Woodruff, 15 Wall. 439.] 
 
 (a) Lord Mansfield in Holman v. Johnsin, Cowp-. 341. [See Kohn v. Re- 
 jiaisance, 5 La. Ann. 25 ; Ivey v. Lalland, 42 Miss. 444.] 
 
 Id) Kent Comm. 3. 263-266 ; Westlake on Private International Law, 185 j 
 Wharton, Conflict of Laws, % 484-5. 
 
 321 
 
286 CHAP. VI. .UNLAWFUL AGBB8MENTS. 
 
 tention to smuggle the goods into England. " The subject of a 
 foreign country is not bound to pay allegiance or respect to the 
 revenue laws of this " (a). But it is admitted' that an agreement 
 to be performed in England in violation of English revenue laws 
 would be void— as if, for example, the goods were to be smuggled 
 by the seller and so delivered in England (6). And. a subject 
 domiciled in the British dominions (though not in England or 
 within the operation of English revenue laws) can not recover in 
 an English court the price of goods sold by him to be smuggled 
 into England (c) ; and even a foreign vendor can not recover if he 
 has himself actively contributed to the breach of English revenue 
 laws, as by packing the goods in a manner suitable and to his 
 knowledge intended for the purpose of smuggling (d). 
 
 The cases upholding contracts of this kind, whether as against 
 •our own or as against foreign laws, would probably not be now ex- 
 tended beyond the points especially decided by them, and perhaps 
 not altogether upheld (e). There is one modern case which looks 
 At first sight like an authority for saying that our courts pay no 
 regard to foreign shipping registration laws: but it really goes up- 
 on a different principle, and, besides, the law of the United States 
 was not properly brought before the Court (/). 
 
 As to instruments which can not be used in their own country 
 for want of a stamp, it is now settled that regard will be paid by 
 the courts of other States to the law which regulates them, and the 
 only question is as to the real effect of that law. If it is a mere 
 rule of local procedure, requiring the stamp to make the instrument 
 286] admissible in evidence, a foreign court, not being *bound by 
 
 (a) Holman v, Johnson, Cowp, 431 ; Pellecat v. Angell, 2 C. M. & E. 311-3, 
 per Lord Abinger, C. B. 
 
 • (6) [Where an alien and an American citizen were engaged in a joint enter- 
 prise, by which merchandise was introduced into the United States in violation 
 of the revenue laws, the former was held not entitled to recover his share of 
 the proceeds of sale from the latter; Cambioso v. Maffitt, 2 Wash. C. C. 98.] 
 
 (c) Clugas v. Penaluna, 4 T. R. 466. It seems, but it is not quite certain, 
 ffom this case, that mere knowledge of the buyer's intention would disen- 
 title him. 
 
 (d) Waymell v. Reed, 5 T. K. 599 ; [cp. infra, p. 320, note (<?).] 
 
 (e) It must be remembered that the general law as to sale of goods, etc., 
 ■which the seller knows will be used for an unlawful purpose, was not fully set- 
 tled at the date of these authorities. 
 
 ' (/) Sharp v. Taylor, 2 Ph. 801 ; See Lindley on Partnership, 1. 210. 
 322 
 
AGREEMENTS FOR CORRUPT INFLUENCE. 286 
 
 -such rules of procedui'e. will not reject the instrument as evidence : it 
 is otherwise if the local law " makes a stamp necessary to the valid- 
 ity of the instrument," i.e. a condition precedent to its having any 
 legal effect at all (a). 
 
 b. As to matters touching good government and the administra- 
 tion of justice. 
 
 It is needless to produce authorities to show that an agreement 
 whose object is to induce any officer of the State, whether judicial 
 or executive, to act partially or corruptly in his office, must in any 
 -civilized country be absolutety void. But an agreement which has 
 an apparent tendency that way, though an intention to use un- 
 lawful means be not admitted, or even be nominally disclaimed, will 
 equally be held void (b). In the case of Bgerton v. Earl Brownlow, 
 of which an account has been given a few pages above, it was held 
 that the descent of an estate could not be made to depend on any 
 public event in which the interest of the nation was concerned : or, 
 to put it a little more broadly in one way and a little more defi- 
 nitely in another, that all transactions are void which create contin- 
 gent interests of a nature to put the pressure of extraneous and 
 improper motives upon the counsels of the Crown or the political 
 conduct of legislators. 
 
 A decision in the American Supreme -Court which happens to be 
 of nearly the same date shows that an agreement is void which 
 -contemplates the use of underhand means to influence legislation. 
 In Marshall v. Baltimore and Ohio Bailroad Co. (c) the nature of 
 the agreement sued on appeared by a letter from the plaintiff to 
 the president of the railway board, in which he proposed a plan 
 
 (a) See Wharton, Conflict of Laws, {!§ 685-8; Bristow v. Sequeville, 5 Ex. 
 .275; [Fant v. Miller, 17 Gratt. 47.] J 
 
 (i) [Wonack v. Loran, Ct. App. Ky. ; 8 0. L. J. 332 ; O'Hara v. Carpenter, 
 23 Mich. 410; Caton v. Stewart, 76 N. C. 357. 
 
 That an agreement to pay for service's in procuring a pardon for a convict is 
 illegal and void is affirmed in Hatzfield v. Gulden, 7 "Watts, 152; Wildey v. Col- 
 lier, 7 Md. 273; Kribben v. Haycraft, 26, Mo. 396; State v. Johnson, 52 Ind. 
 197,205; and denied in Chadwick v. Knox, 11 Post. 226; Formby v. Pryor, 
 15 Ga. 258; Bird v. Breedlove, 24 Ga. 623. 
 
 "An agreement for compensation for procuring a contract from the Govern- 
 ment to furnish its supplies is against public policy, and can not be enforced by 
 the courts;" Tool Co^ v. N«orris, 2 Wall. 45 ; Ashburner v. Parrish, 81 Pa. St. 
 .52; contra, Lyon v. Mitchell, 36 1ST. Y. 235; cp. Winpenny v. French, 18 O. S. 
 469 ; Cummins v. Barkalow, 1 Abb. App. Dec. 479.] 
 
 (c) 16 How. 314. 
 
 323 
 
287 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 for obtaining a right of way through Virginia for the company and* 
 offered himself as agent for the purpose. The letter pointed though 
 not in express terms to the use of secret influence on particular mem- 
 bers of the legislature: and it referred to an accompanying docu- 
 ment which explained the nature of the phin in more detail. This 
 document contained the following passage : — " I contemplate the- 
 287] use of no improper *means or appliances in the attainment 
 of your pnrpose. My scheme is to surround the legislature with 
 respectable agents, whose persuasive arguments may influence the 
 members to do you a naked justice. This is all I require — secrecy 
 from motives of policy alone — because an open agency would fur- 
 nish ground of suspicion and unmerited invective, and might 
 weaken the impression we seek to make." The arrangement was 
 to be as secret as practicable ; the company was to have but one 
 ostensible agent, who was to choose such and so many sub-agents- 
 as he thought proper; and the payment was to be contingent on 
 success. The actual contract was made by a resolution of the di- 
 rectors, according to which agents were to be employed to " super- 
 intend and further" the contemplated application to the legislature- 
 of Virginia "and to take all proper measures for that purpose;" 
 and their right to any compensation was to be contingent on the- 
 passing of the law. The Supreme Court held, first, that it was 
 sufficiently clear that the contract was in fact made on the footing 
 of the previous communications, and was to be carried out in the 
 manner there proposed ; and secondly, that being so made it was- 
 against public policy and void. 
 
 " It is an undoubted principle of the common law that it will not lend. 
 its aid to enforce a contract to do an act that is illegal, or which is incon- 
 sistent with sound morals or public policy ; or which tends to corrupt or 
 contaminate, by improper influences, the integrity of our social or po- 
 litical institutions. . . . Legislators should act from high considera- 
 tions of public duty. Public policy and sound morality do, therefore, 
 imperatively require that Courts should put the stamp of their disappro- 
 bation on every act and pronounce void every contract the ultimate [gu. 
 immediate?] or probable tendency of which would be to sully the purity 
 or mislead the judgments of those to whom the high trust of legislation. 
 is confided." [The judgment then points out that persons interested in 
 the results of pending legislation have a right to urge their claims either 
 in person or by agents, but in the latter case the agency must be open and 
 acknowledged.] " Any attempts to deceive persons intrusted with the- 
 high functions of legislation by secret combinations, or to create or bring 
 324 
 
AGREEMENTS FOE CORRUPT INFLUENCE. 288 
 
 ■into operation undue influences of any kind, have all the effects of a di- 
 rect fraud on the public" (a). 
 
 And the result of the previous authorities was stated to be — 
 
 *" 1. That all contracts for a contingent compensation for obtaining [288 
 legislation, or to use personal or any secret or sinister influence on legis- 
 lators, are (6) void by the policy of the law. 
 
 "2. Secrecy as to the character under which the agent or solicitor acts 
 tends to deception and is immoral and fraudulent, and where the agent 
 -contracts to use secret influences, or voluntarily without contract with his 
 principal uses such means, he can not have the assistance of a court to 
 recover compensation. 
 
 "3. That what in the technical vocabulary of politicians is termed 
 'log-rolling' (c) is a misdemeanor at Common Law punishable by indict- 
 ment" (d). 
 
 So in a later case (e) an agreement to prosecute a claim before 
 Congress by means of personal influence and solicitations of the 
 Tdnd known as " lobby service " has been hold void. 
 
 But as it is open to a landowner or other interested person to 
 defend his interest by all lawful means against proposed legislation 
 from which he apprehends injury, so it is open to him to withdraw 
 -or compromise his claims on any terms he thinks fit. There is no 
 reason against bargains of this kind any more than against a com- 
 promise of disputed civil rights in ordinary litigation (f). And the 
 
 (a) 16 How. at pp. 334-5; [Mills v. Mills, 40 N. T. 5-13; Frost v. Belmont, 
 6 Allen, 152; Bryan v. Keynolds, 5 Wis. 200; Usher v. McBratney, 3 Dill. 385; 
 Grill v. Davis, 12 La. Ann. 219 ; Clippenger v. Hepbaugh, 5 W. & S. 315 ; Pow- 
 ers v. Skinner, 34 Vt. 274; "Wood v. McUann, 6 Dana, 366; McBratney v. 
 Chandler, 22 Kan. 692. 
 
 An agreement among parties petitioning for the improvement of a street, by 
 which a few individuals, desirous of causing the improvement to be made, pro- 
 cure the signatures of others to the petition by promising to pay a considera- 
 tion therefor, is contrary to public policy; Maguire v. Smock, 42 Ind. 1 ; How- 
 ard v. F. I. Church of Balto., 18 Md. 451 ; cp. Makemson v. Kauffinan, 35 O. 
 .S. 444, 455.] 
 
 (6) " is " by a clerical error in the report. 
 
 (c) Arrangements between members for the barter of votes on private bills. 
 
 (d) 16 How. 336. 
 
 (e) Trist v. Child, 21 Wall. 441. 
 
 (/) [" A promise to pay money to one through whose land a road had been 
 
 laid out, for withdrawing his opposition to opening it, is a valid consideration 
 
 -on which an action inay'be sustained;" Weeks v. Lippencott, 42 Pa. St. 474. 
 
 Contra, Smith v. Applegate, 3 Zabr. 352 ; and see Pingry v. Washburn, 1 Aiken, 
 
 •264. 
 
 A contract by which the directors of a railroad company agree not to estab- 
 
 325 
 
289 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 lawfulness of such an agreement is not altered if it so happens- 
 that the party is himself a member of the legislature. In the ab- 
 sence of any thing to show the contrary, he is presumed to make 
 the agreement solely in his character of a person having a valuable 
 interest of his own in the matter, and he is not to be deprived of 
 his rights in that character merely because he is also a legislator (a). 
 '■ A landowner can not be restricted of his rights because he hap- 
 pens to be a member of Parliament"' (6). This may seem a little- 
 anomalous ; but it must be remembered that in practice there is- 
 little chance of a conflict between duty and interest, as the legis- 
 lature generally informs itself on these matters by means of com- 
 mittees proceeding in a quasi-judicial manner. Of course it would 
 be improper for a member personally interested to sit on such a 
 committee. 
 
 289] *On similar grounds it is said that the sale of offices (which 
 is forbidden by statutes extending to almost every case) is also void 
 at common law (c). However there may be a lawful partnership- 
 in the emoluments of offices although a sale of the offices them- 
 selves or a complete assignment of the emoluments would be un- 
 lawful (d). The same principles are applied to other appointments - 
 
 lish a station within a certain distance of a point on its line is against public 
 policy and unlawful; "Williams v. Eailroad Co., Sup. Ct. la., 10 C. L. J. 298; 
 Kailroad Co. v. Eyan, 11 Kan: 602; Railroad Co. v. Mathers, 71 111. 592; and so 
 also is an agreement, in consideration of money or property paid or given by 
 an individual, to establish a station at a particular place; Fuller v. Dame, 18 
 Pick. 472 ; Eailroad Co. v. Seeley, 45 Mo. 212 ; Bestor v. Wathen, 60 111. 138;. 
 Holladay v. Patterson, 5 Oreg. 177.] 
 
 (a) Simpson v. Lord Howden, 10 A. & E. 793 ; 9 CI. & P. 61. 
 
 (6) Kindersley, V.-C, in Earl of Shrewsbury u. N. Staffordshire Ey. Co., 1' 
 Eq. 593, 613. 
 
 (c) Hanington v. Du Chastel, 2 Swanst. 159, n. ; Hopkins v. Prescott, 4 C.B.- 
 578, per Coltman, J.; [Ferris v. Adams, 23 Vt. 136 ; Eddy v. Caprori, 4 B. I. 
 394 ; Meredith v. Ladd, 2 N. H. 517 ; Carleton v. Whitcher, 5 N. H. 196 ; Duton 
 v. Eodes, 3 A. K. Marsh. 432 ; Filson's Trustees v. Himes, 5 Pa. St. 452 ; Bowers 
 v. Bowers, 26 Pa. St. 74 ; Lewis v. Knox, 2 Bibb, 453 ; Stroud v. Smith, 4 
 Houst. 448.] 
 
 (d) Slerry v. Clifton, 9 C. B. 110. [An agreement by which a candidate for 
 office receives from another money to aid in securing his election, and in con- 
 sideration thereof agrees to share with him a portion of the emoluments of the- 
 office, is against public policy and void; Martin v. Wade, 37 Cal. 168; and .see- 
 Gaston v. Drake, 14 Nev. 175; Meguier v. Corwine, 101 U. S. 108. So also is 
 an agreement between two candidates for the same office, that one shall with— 
 
 326 
 
SAIE OF OFFICES, ETC. 289> 
 
 which though not exactly public offices are concerned with matters 
 of public interest. " Public policy requires that there shall bo no 
 money consideration for the appointment to an office in which the 
 public are interested: the public will be better served by having 
 persons best qualified to fill offices appointed to them ; but if money 
 may be given to those who appoint, it maybe a temptation to them 
 to appoint improper persons." Therefore the practice which had 
 grown up in the last century of purchasing commands of ships in 
 the East India Company's service was held unlawful no less on 
 this ground than because it was against the Company's regula- 
 tions (a). 
 
 In like manner a secret agreement to hand over to another per- 
 son the profits of a contract made for the public service, such as a 
 Post Office contract for the conveyance of mails, is void (b). 
 
 Nevertheless many particular offices, and notably subordinate 
 offices in the courts of justice, were in fact salable and the subject 
 of sale by custom or otherwise until quite modern times. But the 
 commission of an officer in the army could not be the subject of a 
 valid pledge even under the system of purchase recently abol- 
 ished (c). 
 
 For like reasons certain assignments of salaries and pensions- 
 have been held void, as tending to defeat the public objects for 
 which the original grant was intended (<f). Thus military pay 
 and judicial salaries are not assignable (e). The rule is that '-a 
 pension for past services may be aliened, but a pension for sup- 
 porting the grantee in the performance of future duties is inalien- 
 able :" and therefore a pension given not only as a reward for past 
 
 draw, and the other, if successful in the attempt to obtain the office, shall divide- 
 the fees with him ; Gray v. Hook, 4 N. Y. 449 ; Hunter v. Nolf, 71 Pa. St. 282. 
 
 Where a candidate for the office of probate judge pledged himself, if elected, 
 to perform the duties of the office for a sum less than half the fees allowed by- 
 law, whereby voters were induced to vote for him, and he received a majority 
 of the votes cast, his election was declared invalid as against public policy; 
 State v. Collier, Sup. Ct. Mo., 8 0. L. J. 495; State v. Purdy, 36 Wis. 213; Car- 
 rothers v. Russell, Sup. Ct. la., 10 C. L. J'. 477.] 
 
 (a) Blackford v. Preston, 8 T. R. 89, 93. 
 
 (J) Osborne v. Williams, 18 Ves. 379. [Cp. Gordon v. Dalby, 30 la. 223.] 
 
 (c) Collyer v. Fallon, T. & R. 459. 
 
 (d) [Billings v. O'Brien, 14 Abb. Pr. 1ST. S. 238.] 
 
 (e) [In Bank v. Hastings, 15 Wis. 75, it was held that an assignment, by a 
 judge of the circuit court, of his quarter's salary, next coming due was valid.] 
 
 327 
 
290 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 services, but for the support of a dignity created at the same ;time 
 290] and *for the same reason, is inalienable (a). But an assign- 
 ment by the holder of a public office of a sum equivalent to a pro- 
 portionate part of salary, and secured to his legal personal repre- 
 sentatives on his death by the terms of his appointment, is not in- 
 valid, such a sum being simply a part of his personal estate like 
 money secured by life insurance (b). In a late case a mortgage by 
 an officer of the Customs of his disposable share in the " Customs 
 Annuity and Benevolent Iktnd" created by a special Act was un- 
 successfully disputed as contrary to the policy of the Act (e). 
 
 Agreements for the purpose of " stifling a criminal prosecution " 
 are void as tending to obstruct the course of public justice (d). 
 An agreement made in consideration ostensibly of the giving up 
 of certain promissory notes, the notes in fact having forged in- 
 dorsements upon them, and the real consideration appearing by 
 the circumstances to be the forbearance of the other party to pros- 
 ecute, was not long ago held void on this ground in the House of 
 Lords. The principle of the law as there laid down by Lord West- 
 bury is, " That you shall not make a trade of a felony " (e). 
 
 However the principal direct authority must still be sought in 
 the earlier case of Keir v. Leeman (/). The Court of Queen's 
 Bench there said : — 
 
 (a) Davis v. Duke of Marlborough, 1 Swanst. 74, 79. Cp. Arbuthnot v. Nor- 
 ton, 5 Moo. P. C. 219. And see authorities collected in notes toliyall v. Bowles, 
 2 Wh. & T. L. G. 
 
 (6) Arbuthnot v. Norton, supra. (c) Maclean's trusts, 19 Eq. 274. 
 
 (d) [Kimbrough v. Lane, 11 Bush, 556; Lindsay v. Smith, 78 N. 0. 328; 
 Baker v. Parris, 61 Mo. 389 ; Shaw v. Eeed, 30 Me. 105 ; Shaw v. Spooner, 9 N. 
 H 197; Badger v. Williams, 1 D. Chipman, 137; Chandler v. Johnson, 39 Ga. 
 85; Goodwin v. Crowell, 56 Ga. 566 ; Buck v. Bank, 27 Mich. '293; Snider v. 
 Willey, 33 Mich. 483; Sumner v. Summers, 54 Mo. 340; Wight v. llindskopf, 
 43 Wis. 344; Roll v. Raguet, 4 Ohio, 400; Raguet v. Eoll, 7 Ohio (pt. 1), 76; 
 Vanover v. Thompson, 4 Jones L. 485 ; Henderson v. Palmer, 71 111. 579 ; Tay- 
 lor v. Jaques, 106 Mass. 291 ; Peed v. McK.ee, 42 la. 689. 
 
 An agreement to indemnify another for becoming bail for one arrested for a 
 crime, so as to enable the latter to flee from justice, is void; Baehr v. Wolff, 59 
 111. 470 ; Dunkin v. Hodge, 46 Ala. 523. So also is an agreement by a fugitive 
 from justice about to be surrendered for extradition, to pay money in consider- 
 ation of forbearance to prosecute the proceedings against him; Dixon v. Olm- 
 Btead, 9 Vt. 310.] 
 
 (e) Williams v. Bayley, L. R. 1 H. L. 200, 220. 
 (£) 6 Q. B. 308, in Ex. Ch. 9 Q. B. 371. 
 
 328 
 
UNLAWFUL COMPROMISES, ETC. 291 
 
 " The principle of law is laid down by Wilmot, C. J., in Collins v. Blan- 
 tern (a), that a contract to withdraw a prosecution for perjury and con- 
 sent to give no evidence against the accused is founded on an unlawful 
 •consideration and void. On the soundness of this decision no doubt can 
 be entertained, whether the party accused were innocent or guilty of the 
 'Crime charged. If innocent, the law was abused for the purpose of ex- 
 tortion ; if guilty, the law was eluded by a corrupt compromise screening 
 the criminal for a bribe. [The cases are then reviewed.] We shall prob- 
 ably be safe in laying it down that the law will permit a compromise of 
 -all offenses, though made the subject of. criminal prosecution, for which 
 offenses the injured party might sue and recover damages in an action. 
 It is often the only manner in *which he can obtain redress. - But [291 
 if the offense is of a public nature no agreement can be valid that is 
 founded on the consideration of stifling a prosecution for it" (5). 
 
 Accordingly the Court held that an indictment for offenses, in- 
 cluding riot and obstruction of a public officer in the execution of 
 his duty, can not be legally the subject of a compromise. The 
 judgment of the Exchequer Chamber (c) affirmed this, but showed 
 some dissatisfaction even with the limited right of compromise ad- 
 mitted in the Court below. It was observed that there was really 
 very little authority for it; and although it was not actually so 
 laid down, it looks as if the Court would have been ready to de- 
 cide if necessary that the compromise of any criminal offense is 
 illegal. In a late case, however, the Court of Appeal entertained 
 no doubt that where there is a choice of a civil or criminal remedy 
 a compromise of criminal as well as civil proceedings is lawful (d). 
 It is not compounding felony for a person whose name has been 
 forged to a bill to adopt the forged signature and advance money 
 to the forger to enable him to take up the bill. It is doubtful 
 whether a security given by the forger for such advance is valid : 
 but he can not himself actively dispute it (on the principle potior 
 est conditio defendentis, of which afterwards), nor can his trustee in 
 -bankruptcy, who for this purpose is in no better position than 
 
 (a) 1 Sm. L. C. 369, 382; [7th Am. ed. 667, 673 ] 
 
 (6) Ace. in Olubb v. Hutson, 18 0. B. N. S. 414, held that forbearance to 
 prosecute a charge of obtaining money by false pretenses is an illegal consid- 
 eration. 
 
 («) 9 Q. B. at p. 392. 
 
 (a) Fisher & Go. v. Apollinaris Co., 10 Ch. 297; [contra, Bowen v. Buck, 28 
 Vt. 308; Lindsay v. Smith, 78 N. C. 328; Jones v. Bice, 18 Pick. 440; Gray v. 
 ^eigler, 2 Strobh. 117.] 
 
 329 
 
292 CHAP. VI. UNLAWFUL AOBEEMENTS. 
 
 himsojf, as there is in any case no offense against the bankrupt 
 laws (a). 
 
 The compounding of offenses under penal statutes is expressly 
 forbidden by 18 Eliz. c. 5, s. 5. 
 
 An election petition, though not a criminal proceeding, is a pro- 
 ceeding of a public character and interest which may J have penal 
 consequences; and an agreement for pecuniary consideration not 
 to proceed with an election petition is void at common law, as its- 
 effect would be to deprive the public of the benefit which would 
 result from the investigation (b). 
 
 292] *In like manner an agreement for the collusive con- 
 duct of a divorce suit is void (c), and an agreement not to ex- 
 pose immoral conduct has been held void as against public- 
 policy (d). 
 
 Agreements relating to proceedings in civil courts, and involv- 
 ing anything inconsistent with the full and impartial course of 
 justice therein, though not open to the charge of any thing like 
 actual corruption, are likewise held void (e). Where an agreement 
 for compromise of a suit (a thing regarded as in itself rightful 
 and even laudable) was in fact founded on information privily 
 •given to one of the parties by an officer of the court in violation 
 of his duty (such information not being specific, but a general 
 
 (n) Ex parte Caldecott, 4 Ch. D. 150 ; [see, on the other hand, Laing v. Mo- 
 Call. 60 Vt. 657, which, it is submitted, was wrongly decided; cp. Ward B.- 
 Allen, 2 Met. 53.] 
 
 (b) Coppoek v. Bower, 4M.&W. 361. 
 
 (c) Hope v. Hope, 8 D. M. G. 731 ; [Stoutenburg v. Lybrand, 13 O. S. 2:8; 
 Kilborn v. Field, 78 Pa. St. 194; Viser v. Bertrand, 14 Ark, 267; Sayles v.. 
 Sayles, 1 Fost. 312 ; Goodwin v. Goodwin, 4 Day, 343 ; Stilson v. Stilson, 46 
 Conn. 15 ; Belden v. Munger, 5 Jlinn. 211; Adams v. Adams, 25 Minn. 72. An 
 agreement between the overseers of the poor and a husband whose wife is sup- 
 ported as a town- charge that they will refrain from making opposition to a 
 libel for divorce filed by the husband against the wife is against public policy 
 and void; Weeks v. Hill, 38 N. H. 199.] 
 
 (el) Brown v. Brine, 1 Ex. D. 5. 
 
 (e) [An agreement to pay a witnessswho could not be required by subpoena to 
 attend a trial a certain sum to be present at the trial, which sum was td be re- 
 duced one-half if the party promising lost the case, is unlawful ; Dawkins v. 
 GUI, 10 Ala. 206. 
 
 An agreement to procure witnesses to, swear to a certain state of facts is* 
 against public policy ; Patterson v. Dormer, 48 Cal. 369.] 
 330 
 
REFERENCE, HOW FAR ENFORCEABLE. 29£ 
 
 intimation that it would be for the party's interest to compromise),. 
 Lord Eldon held that it could not be enforced (a). 
 
 In a recent case a shareholder in a company which was in course 
 of compulsory winding up, agreed with other shareholders who 
 were also creditors, in consideration of being indemnified by them 
 against all future calls on his shares, that he would help them to 
 get an expected call postponed, and also support their claim : it 
 was held that " such an agreement amounts to an interference 
 with the course of public justice :" for the clear intention of the 
 Winding-up Acts is that the proceedings should be taken with 
 reasonable speed so that the company's affairs may be settled and 
 ihe shareholders relieved; and therefore any secret agreement to 
 delay proceedings to the prejudice of the other shareholders and 
 creditors is void (b). This comes near to the cases of secret agree- 
 ments with particular creditors in bankruptcy or composition : and 
 those cases do, in fact, rest partly on this ground. But the direct 
 fraud on the other creditors is the chief element in them, and we 
 have therefore spoken of them under an earlier head (p. 247). 
 
 Agreements to refer disputes to arbitration are, or rather were, 
 to a certain extent regarded as encroachments on the proper- 
 authority of courts of justice by the substitution of a " domestic 
 forum" of the parties' own making. At common law such an 
 agreement, though so far valid that an action can be maintained 
 *for a breach of it (c), does not "oust the ordinary juris- [293 
 diction of the Court" — that is, can not be set up as a bar to an action 
 brought in the ordinary way to determine the very dispute which 
 it was agreed to refer (d). Nor can such an agreement be specifi- 
 
 (a) Cooth v. Jackson, 6 Ves. 11, 31, 32. 
 
 (S) Elliott v. Richardson, L. E. 5 C. P. 744, 748-9, per Willes, J. 
 
 (c) Livingston v. Ealli, 5 E. & B. 132; 24 L. J. Q. B. 269. 
 
 (d) [Pearl v. Harris, 121 Mass. 390; Wood v. Humphrey, 114 Mass. 185; Hill 
 v. More, 40 Me. 515, 523; Gray v. Wilson, 4 Watts, 39; Kandal v. 0. & D. 
 Canal Co., 1 Harringt. 233, 275; Stone v. Dennis, 3 Porter, 231;' Haggartu.. 
 Morgan, 5 N. T. 422; Hurst v. Litchfield, 39 N. Y. 377; McGunn v. Hanlin, 
 29 Mich. 476; March v. Railroad Co., 40 N. H. 548, 571. 
 
 On this principle it was held that an agreement by a foreign insurance com- 
 pany, in pursuance of a state statute, exacting the promise as a condition of the 
 riijht to do business in the state, that if sued in a state court it would nut re- 
 move the suk into the Federal Court was void ; Insurance Co. ■». Morse, 20 Wall- 
 
 445.1 ' ' 
 
 331 
 
293 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 -cally enforced (a), or used as a bar to a suit in equity (6). It is 
 said however "tbat a special covenent not to sue may make a 
 -difference (6). And the law has not been directly altered (6) : but 
 the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125, § 11) 
 gave the courts a discretion to stay proceedings in actions or suits 
 -on the subject-matter of an agreement to refer, which amounts in 
 practice to enabling them to enforce the agreement : and this discre- 
 tion has as a rule been exercised by courts both of law (c) and of 
 equity (d) in the absence of special circumstances, such as a case 
 of actual fraud, or where the defendant appeals to an arbitration 
 clause not in good faith, but merely for the sake of vexation or de- 
 lay (e). A question whether on the true construction of an arbitra- 
 tion clause the subject-matter of a particular dispute falls within it 
 is not to be treated as a preliminary question for the Court, but is 
 itself to be dealt with by the arbitrator ; for " in most of such 
 cases the real question between the parties is whether the matter 
 in dispute is within. or without the agreement '•' (/). 
 
 It seems however that when the question is whether an agree- 
 ment containing an arbitration clause is or is not determined, that 
 question is not one for arbitration, since the arbitration clause it- 
 self must stand or fall with the whole agreement (g). 
 
 Certain statutory provisions for the reference to arbitration of 
 internal disputes in friendly and building societies have been 
 decided (after some conflict) to be compulsory and to exclude the 
 
 (a) Street v. Rigby, 6 Ves. 815, 818; [Tobey v. County 'of Bristol, 3 Story, 
 800; King v. Howard, 27 Mo. 21 ; Greason v. Keteltas, 17 N. T. 491, 496; Smith 
 v. llailroad Co., 36 ST. H. 458, 487.] 
 
 (b) Cooke v. Cooke, 4 Eq. 77, 86-7. 
 
 (c) Eandegger v. Holmes, L. E. 1 C. P. 679; Seligmann v. Le Boutillier, lb. 
 •681. 
 
 (d) Willesford v. Watson, 14 Eq. 572; 8 Ch. 473; Plews o. Baker, 16 Eq. 
 -564. , 
 
 (e) 14 Eq. 578; "Witt v. Corcoran, 8 Ch. 476, n.; 16 Eq. 571; Lindley, 2. 
 893-4. The enactment applies only where there is at the time of action brought 
 ■an existing agreement for reference which can be carried into effect. Eandell, 
 .Saunders & Co. v. Thompson (C. A.), 1 Q. B. D. 748. 
 
 (/) Willesford v. Watson, 8 Ch. 478, per Lord Selborne, C; Gillett v. Thorn- 
 ton, 19 Eq. 599; [but see Piercy v. Young, 14 Ch. D. 200.] 
 
 {g) Per James, L. J., in Llanelly By. & Dock Co. v. L. & N. "W. By. Co.^8 
 -Ch. at p. 948. 
 332 
 
CHAMPERTY. 294 1 
 
 ♦ordinary jurisdiction of the courts (a). The Eailway Com- [294 
 panies' Arbitration Act, 1859, is also compulsory (6). 
 
 Moreover parties may if they choose make arbitration a condi- 
 tion precedent to any right arising at all, and in that case the fore- 
 going rules are inapplicable : as where the contract is to pay such 
 an amount as shall be determined by arbitration or found due by 
 the certificate of a particular person (c). Whether this is in fact 
 the contract, or it is an absolute contract to pay in the first in- 
 stance, with a collateral provison for reference in case of difference- 
 as to the amount, is a question of construction on which there has- 
 been some difference of opinion in recent cases (d). 
 
 We now come to a class of transactions winch are specially dis- 
 couraged as tending to prevent the due course of justice in civil 
 suits. 
 
 These are the dealings which are held void as amounting to or- 
 being in the nature of champerty or maintenance. The principle 
 of the law on this head has been defined to be " that no encourage- 
 ment should be given to litigation by the introduction of parties to 
 enforce those rights which others are not disposed to enforce" (e). 
 Maintenance is properly a general term of which champerty is a 
 species. Their most usual meanings (together with certain addi- 
 tions and distinctions now obsolete) are thus given by Coke: — 
 
 "First, to maintain to have part of the land or any thing out 
 of the land or part of the debt, or any other thing in plea or suit;. 
 
 («) Thompson v. Planet Benefit Building Society, 15 Bq. 333 ; Wright v. 
 Monarch Investment Building Society, 5 Ch. D. 726. Not so where the real 
 question is whether a party claiming against the society is a member of the so- 
 ciety at all ; Prentice v. London, L. E. 10 C. P. 679. 
 
 (b) Watford & Eickmansworth Ey. Co. v. L. & N. W. Ey. Co., 8 Eq. 231. 
 
 (c) Scott v. Avery, 5 H. L. C. 811 ; [Fox v. Eailroad Co., 3 Wall., Jr., 243;. 
 Smith v. Eailroad Co., 36 N. H. 458, 487 ; Del. & H. Canal Co. v. Pennsylv'a. 
 Coal Co., 50 N. Y. 250]. Scott v. Avery does not overrule the former general 
 law on the subject; see the judgments of Brett, J., and Kelly, C. B., in Ex. Ch. 
 in Edwards v. Aberayron, &c, Society, 1 Q. B. D. 563 ; Scott v. Corporation of 
 Liverpool, 3 Be G. & J. 334; [and see Mentz v. Insurance Co., 79 Pa. St. 478 ;~ 
 Trutt v. Insurance Co., 1 Cliff. 439 ; Iritephenson v. Insurance Co., 54 Me. 55 ;- 
 Eowe v. Williams, 97 Mass. 163 ; Collins v. Locke, 4 App. Ca. 674, 689.] 
 
 (d) Elliott v. Eoyal Exchange Assurance Co., L. E. 2 Ex. 237; Dawson v.. 
 Fitzgerald (C. A.), 1 Ex. D. 257, revg. S. C. L. E. 9 Ex. 7. 
 
 (e) By Lord Abinger in Prosser v. Edmonds, 1 T. & C. Ex. 481, 497. 
 
 333 
 
295 CHAP. VI. QNLAWFUL AGREEMENTS. 
 
 .and this is called cambipartia [champart, campi partitio'], chani^ 
 pertie." 
 
 The second is, "when one maintaineth the one side without 
 having any part of the thing in plea or suit" (a). Champerty 
 295] *may accordingly be described as " maintenance aggravated 
 by an agreement to have a part of the thing in dispute " (6). 
 
 Agreements falling distinctly within these descriptions are pun- 
 ishable under certain statutes (e). It has always been considered, 
 however, that champerty and maintenance are offenses at common 
 law, and that the statutes only declare the common law with addi- 
 tional penalties (d). 
 
 Whether by way of abundant caution or for other reasons, the 
 law was in early times applied or at any rate asserted with extreme 
 and almost absurd severity (e). It was even contended, as we had 
 occasion to see in the last chapter, that the absolute beneficial as- 
 signment of a contract was bad for maintenance. The modern 
 cases, however, proceed not upon the letter of the statutes or of the 
 definitions given by early writers, but upon the real object and pol- 
 icy of the law, which is to repress" that which Knight Bruce, L. J. 
 spoke of as " the traffic of merchandising in quarrels, of huckster- 
 ing in litigious discord," which decent people hardly require legal 
 knowledge to warn them from, and which makes the business and 
 profit of " breedbates, barretors, counsel whom no Inn will own, 
 and solicitors estranged from every roll " (/). On the other hand the 
 Courts have not deemed themselves bound to permit things clearly 
 within the mischief aimed at any more than to forbid things clearly 
 without it. They have in fact taken advantage of the doctrine 
 that the statutes are only in affirmance of the common law to treat 
 them as giving indications rather than definitions; as bearing wit- 
 ness to the general " policy of the law " but not exhausting or re- 
 
 (a) Co. Litt. 368S. Every champetry is maintenance ; 2 Bo. Ab. 119, It. 
 (*) Bovill, arg. in Sprye v. Porter, 7 E. & B. 58; 26 L. J. Q. B. 64. 
 
 (c) 3 Ed. 1. (Stat. Westm. 1), c. 25; 13 Ed. 1 (Stat. Westm. 2), c. 49; 28 Ed. 
 1. st. 1. c. 11; Stat, de Conspiratoribus, temp, incert. ; 20 Ed. 3, c. 4; 1 Bic. 2. 
 c. 4; 7 Bic. 2. c. 15 ; and 32 H. 8. c. 9, of which more presently. 
 
 (d) Pechell v. "Watson, 8 M. & "W. 691, 700; 2 Ko. Ab. 114 D.; [Backus v. 
 Byron, 4 Mich. 535 ; Martin v. Clarke, 8 ,Ei I. 389 ; Sedgwick v. Stanton, 14 
 N. T. 289, 295; Key v. Vattier, 1 Ohio, 132; Thurston v. Percival, 1 Pick. 415; 
 JBrown v. Beauchamp, 5 T. B. Mon. 413,416; Thompson v. Keynolds, 73 111.11.] 
 
 (e) See Bacon's Abridgment, Maintenance, A. (5. 250). 
 (/) Beynell v. Sprye, 1 D. M. G. at pp. 680, 686. 
 
 334 
 
CHAMPERTY. 206 
 
 sstricting it. It is uol considered necessary to, decide that a partic- 
 ular transaction amounts to the actual offense of champerty or 
 maintenance in order to disallow it as a ground of civil rights: it 
 will be void as " savoring of maintenance " if it clearly tends, to the 
 same kind of mischief. 
 
 The cases are somewhat numerous, and various in their *spe- [296 
 cial circumstances. A full examination of them would lead us to 
 a length out of proportion to the place of the subject here (<x). 
 Their general effect, however, is sufficiently clear. Of maintenance 
 pure and simple, an important head in the old books, there are very 
 few modern examples ; almost all the decisions illustrate the more 
 special rule against champerty, namely that "a bargain whereby 
 the one party is to assist the other in recovering property, and is 
 to share in the proceeds of the action,' is illegal " (b). On this head 
 the rules now established appear to be as follows : — 
 
 («) An agreement to advance funds or supply evidence with or 
 without professional assistance (or, it seems, professional assistance 
 only) (c) for the recovery of property in consideration of a remu- 
 neration contingent on success and proportional to or be paid out 
 of the property recovered is void (<2). 
 
 (a) A singularly concise and accurate statement of the principal decisions 
 down to 1867 will be found in Leake on Contracts, 385-6. [And see now, lb., 
 2d ed. 730-734.] 
 
 (6) Per Blackburn, J., Hutley i>. Hutley, L. K. 8 Q. B. 112. 
 
 (c) Per Jessel, M. E., Re Attorneys and Solicitors Act, 1 Ch. D. 573, where 
 the agreement was to pay the solicitors, in the event of success, a percentage 
 of the property recovered; but probably the real meaning of it was that the 
 solicitors should find the funds. Gp. Grell v. Levy, 16 C. B. N. S. 73, and 
 Strange v. Brennan, cited p. 298 below. 
 
 (d) Stanley v. Jones, 7 Bing. 369; Keynell v. Sprye, 1 D. M. G-. 660; Sprye 
 v. Porter, 7 E. & B. 58 ; 26 L. J. Q. B. 64; Hutley v. Hutley, L. 11 8 Q. B. 112. 
 fThe law prevailing in the various states of this country (New Jersey alone 
 excepted, Schomp v. Sclienck, 40 N. J. L. 195), unlike the law of England, 
 infra, p. 594. permits counsel and client to make "legal contracts of hiring and 
 service concerning advocacy in litigation." 
 
 In some states an agreement by counsel to conduct a suit in consideration of 
 receiving as compensation a part of the fruits of the litigation, is void for 
 champerty; Hayney v. Coyne, 10 Heisk. 339; Backus v. Byron, 4 Mich. 535; 
 Scobey v. Ross, 13 Ind. 117; Brown v. Beauchamp, 5 T. B. Mon. 413; Davis 
 v. Sharon, IS B. Mon. 64; Elliott v. McClelland, 17 Ala. 206; ThurstoH v. Per- 
 cival, 1 Pick. 415. ! 
 
 In most of the states such an agreement would be held valid ; Newkirk v. 
 Cone 18 111. 449; Bayard v. McLane, 3 Harringt. 139; AUard v. Lamirande,29 
 
 335 
 
296 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 "(|0 A. solicitor can not purchase the subject-matter of a pending- 
 suit from his client in that suit (a) : but he may take a security 
 upon it for advances already made and costs already due in the 
 suit (6). 
 
 (f) Except in the case last mentioned, the purchase of property 
 the title to which is disputed, or which is the subject of a pending- 
 suit, or an agreement for such purchase, is not in itself unlawful (c) : 
 
 Wis. 502; Moses v. Bagley, 55 Ga. 283 ; Major v. Fields, 1 Pat. & H. 48 ; Duke- 
 v. Harper, 66 Mo. 51 ; and see Me f hereon v. Cox, 96 U.S. 404; Wright o.Teb- 
 bitts, 91 U. S. 252. 
 
 But a provision that counsel should also provide for the costs of, or advance- 
 funds for, carrying on the litigation would make the agreement unlawful. 
 Stearns v. Fe.lker, 28 Wis. 594 ; Meeks *. Dewberry, 57 Ga. 263 ; Martin v. 
 Clarke, 8 K. I. 389 ; Thompson v. Eeynolds, 73 111. 11 ; Coughlin v. Railroad 
 Co., 71 N. Y. 443 : as would a provision that the client should not be permitted 
 to compromise the suit without the consent of counsel; Key v. Vattier, 1 Ohio, 
 1SJ; Lewis v. Lewis, 15 Ohio, 715; Boardman v. Brown, 25 la. 487; and see 
 -Adye v. Hanna, 47 la. 264; contra, Hoffman i>. Vallejo, 45 Cal. 564. 
 
 It has been held that although counsel can not enforce a champertous agree- 
 ment for compensation, he may reeover on quantum meruit for the reasonable- 
 value of his services; Rust v. Larue, 4 Litt. 411; Hollowayw. Love, 1 Ala. 246;. 
 Stearns v. Felker, 288Ms. 594 ; Merritt v. Lambert, 10 Paige, 352, aff'd. 2 Denio, 
 607. But it seemsllpimalous that one should be allowed to recover for the 
 value of services rendered by him under an unlawful agreement ; cp. Thurston 
 v. Percival, 1 Pick. 415. 
 
 It has also been decided that whenever it appears to the court that plaintiffs- 
 action is carried on under a champertous agreement with counsel, it will 
 order it to be dismissed; Allard v. Lamirande, 29 Wis. 502; Barker v. Barker,. 
 14 Wis. 131 ; Webb v. Armstrong, 5 Humph. 379; Greenman v. Cohee, 61 Ind. 
 201. The rule in England, which is to the contrary, is better founded in reason; 
 Hilton v. Woods, 4 Eq. 432 ; and see Boone v. Chiles, 10 Pet. 177, 219. 
 
 In several states the common-law rules against champerty and maintenance 
 have been declared to be not in force as being the product of a past social sys- 
 tem, and inapplicable to the present state of society ; see e.g., Schomp ■». Schenk, 
 40 N. J. L. 195, 202-206; Matthewson v. Pitch, 22 Cal. 86; Lytle „. State, XT 
 Ark. 608; Richardson v. Rowland, 40 Conn. 565. 
 
 See further as to the law in this country on the subject of maintenance and; 
 champerty, the note to Thallhimer v. Brinckerhoff, 15 Am. Dec. 316-322.] 
 
 (a) Wood v. Downes, 18 Ves. 120 ; Simpson v. Lamb, 7 E. & B. 84; [West v.. 
 Raymond, 21 Ind. 305; Berrien o. McLane, 1 Hoffm. Ch.- 421, 424; contra, 
 Dunn v. Record, 63 Me. 17,] 
 
 (b) Anderson v. Radcliffe (Ex. Ch.), E. B. & E. 806; 29 L. J. Q. B. 128 ; 
 [Matt v. Harrington, 12 Vt. 199.] 
 
 (c) Hunter v. Daniel, 4 Ha. 420 ; Knight v. Bowyer, 2 De G. & J. 421, 444.. 
 
 336 
 
CHAMPERTY AND MAINTENANCE. 2971 
 
 but such an agreement is unlawful and void if the real object of ifc 
 is only to enable the purchaser to maintain the suit (a). 
 
 We proceed to deal shortly with these propositions in order. 
 
 *a. This rule was laid down in very clear terms by Tin-, [297 
 dal, C. J., in Stanley v. Jones (6), which'seems to be the first of the 
 modern cases at law. 
 
 "A bargain by a man who has evidence in his own possession respect- 
 ing a matter in dispute between third persons, and who at the same time 
 professes to have the means of procuring more evidence, to purchase from 
 one of the contending parties, at the price of the evidence which he so 
 possesses or can procure, a share of the sum of money which shall be re- 
 covered by means of the production of that very evidence, can not be- 
 enforced in a Court of law." 
 
 It is quite immaterial for this purpose whether any litigation is 
 already pending or not, although the offense of maintenance is 
 properly maintaining an existing suit, not procuring one to be 
 commenced. It is obvious that the mischief is even greater in the 
 case where a person is instigated by the promise of indemnity in 
 the event of failure to undertake litigation which otherwise he 
 would have not thought of. If a person who is in actual posses- 
 sion of certain definite evidences of title proposes to deliver them 
 to the person whose title they support on the terms of having a- 
 certain share of any property that may be recovered by means of 
 these evidences, there being no suit depending, and no stipulation 
 for the commencement of any, this is not unlawful: for litigation 
 is not necessarily contemplated at all, and in any case there is no- 
 provision for maintaining any litigation there may be (c). But it 
 is in vain to put the agreement in such a form if these terms are 
 only colorable (rf), and the real agreement is to supply evidence 
 generally for the maintenance of an intended suit: the illegal in- 
 tention may be shown, and the transaction will be held void (c). 
 Still less can the law be evaded by slighter variations in the fbrrn 
 or manner of the transaction : for instance, an agreement between 
 solicitor and client that the solicitor shall advance funds for carry ■>• 
 ing on a suit to recover possession of an estate, and in the event 
 
 (a) Prosser v. Edmonds, 1 T. & C. Ex. 481 ; Harrington v. Long, 2 My. & 
 E. 590; De Houghton v. Money. 2 Ch. 164. 
 
 (b) 7 Bing. 369, 377. 
 
 (c) Sprye v. Porter, 7 E. & B. 58 ; 26 L. J. Q. B. 64. 
 
 (d) As a matter of fact, it is extremely difficult to suppose that they could 
 ever be otherwise. 
 
 22 337 
 
298 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 of success shall receive a sum above his regular costs "accords 
 ing to the interest and benefit" acquired by the possession of the 
 estate, is as much void as a bargain for a specific part of the prop- 
 298] erty (a). So where a ^solicitor was to have a percentage 
 of the fund recovered in a suit, it was held to be not the less cham- 
 perty because he was not himself (and in fact could not be) the 
 solicitor in the suit, but employed another (b). 
 
 An agreement by a solicitor with a client simply to charge 
 nothing for costs in a particular action is not champerty (c). 
 
 [}. This rule came to be laid down in a somewhat curious way. 
 In Wood v. Downes (d). Lord Eldon set aside a purchase by a so- 
 licitor from his client of the res litigiosa, partly on the ground of 
 maintenance. But it is to be noted as to this ground that the 
 agreement for sale was in substitution for a previous agreement 
 which clearly amounted, and which the parties had discovered to 
 amount, to maintenance: and the Court appears to have inferred as 
 & fact that it was all one illegal transaction, and the sale merely 
 colorable (e). The other ground, which alone would have been 
 ■enough, was the presumption of undue influence in such a trans- 
 action, arising from the fiduciary relation of solicitor and client 
 (of which we shall speak in a subsequent chapter). The Court of 
 Queen's Bench, however, in Simpson v. Lamb (/), followed Wood 
 v. Downes, as having laid down, as a matter of the " policy of the 
 law," the positive rule above stated. In. Anderson v. Eadcliffe (g), 
 ■unanimous judgments in both the Q. B. and the Ex. Ch. added the 
 qualification that a conveyance by way of security for past ex- 
 penses is nevertheless good. The Court of Exchequer Chamber 
 showed a decided opinion that Simpson v. Lamb had gone too far, 
 
 (a) Earle v. Hopwood, 9 C. B.N. S. 566; 30 L. J. 0. P. 217. 
 
 (b) Strange v. Brennan, 15 Sim. 346 ; 2 0. P. Cooper (temp. Cottenham), 1 
 The agreement was made with a solicitor in Ireland, not being a solicitor of the 
 English Court of Chancery, and the fund to be recovered was in England, 
 
 (c) Jennings v. Johnson, L. K. 8 C. P. 425. 
 
 (d) 18 Ves. 120. 
 
 " (e) Cp. Sprye v. Porter, supra. In "Wood v. Downes the parties do not seem 
 to have even kept the original and real agreement off the face of the transac- 
 tion in its ultimate shape. See p. 123. It is to be regretted that the repor.ter 
 ■did not preserve the full statement of. the facts (p. 122) with which the judg- 
 ment opened. 
 
 ' (/) 7 E. & B. 84. "' ;' \ 
 
 (y) E. B. & E. 806; 28 L. J. Q. B. 32; 29 lb. 128. 
 338 
 
CHAMPERTY AND MAINTENANCE. 299 
 
 "but without positively disapproving it. In Knight v. Bowyer, 
 Again, Turner, L. J., said : " I am aware of no rule of law which 
 prevents an attorney from purchasing what anybody else is at lib- 
 erty to purchase, subject, of course, if he purchases from a client, 
 to the consequences of *that relation " (a). But the case [299 
 before the Court was not the purchase by a solicitor from his client 
 of the subject-matter of a suit in which he was solicitor ; Simpson v. 
 Lamb, therefore, was only treated as distinguishable (a). The 
 case must at present be considered a subsisting authority, but 
 anomalous and not likely to be at all extended (b). 
 
 X- As to the purchase of things in litigation in general, the au- 
 thorities can not all be reconciled in detail. But the distinction 
 which runs through them all is to this effect. The question in 
 every case is whether the real object be to acquire an interest in" 
 property for the purchaser, or merely to speculate in litigation on 
 the account either of the vendor and purchaser jointly or of the 
 purchaser alone. It is not unlawful to purchase an interest in 
 property though adverse claims exist which make litigation neces- 
 sary for realizing that interest : but it is unlawful to purchase an 
 interest merely for the purpose of litigation. In other words, the 
 sale of an interest to which a right to sue is incident is good (c) ; 
 but the sale of a mere right to sue is bad (d). 
 
 A man who has conveyed property by a deed violable in equity 
 retains an interest not only transmissible by descent'or devise, but 
 disposable inter vivos without such disposition being champerty. 
 But " the right to complain of a fraud is not a marketable com- 
 modity," and an agreement whose real object is the acquisition of 
 such a right can not be enforced (e). In like manner, a creditor 
 of a company may well assign his debt, but he can not sell as in- 
 cident to it the right to proceed with a winding-up petition (/). 
 
 (a) 2 De G. & J. at p. 445. 
 
 (6) Cp., however, the Austrian Civil Code, which makes such agreements 
 void (§ 879). 
 
 (a) Dickinson v. Burrell, 1 Eq. 337, 342. 
 
 (d) lb. ; Prosser v. Edmonds, 1 Y. & C. Ex. 481 (the main part of Lord Ab- 
 inger's judgment is extracted in a note to Story, Eq, Jur., § 1040A). 
 
 (e) Prosser v. Edmonds; De Hoghton v. Money, 2 Ch. 164, 169; op. Hill v. 
 Boyle, 4 Eq. 260; [Norton y.'Tuttle, 60 111. 130; M. & M. Railroad Co. v. M.& 
 MV'. Kailroad Co., 20 Wis. 174; Morrison v. Deadrick, 10 Humph. 342;' Mar- 
 shall v. Means, 12 Ga. 61.] '< ' 
 
 (/ ) Paris Skating Rink Co. (C. A.), 5 Ch. D. 959. 
 
 339 
 
300 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 The payment of the price being made contingent on the recov^ 
 ery of the property is probably under any circumstances a suffi- 
 cient, but is by no means a necessary, condition of the Court being 
 satisfied that the real object is to traffic in litigation, If the pur- 
 chase is made while a suit is actually pending, the circumstance 
 300] *of the purchaser indemnifying the vendor against costs- 
 may be material, but is not alone enough to show that the bargain 
 is in truth for maintenance (a). But the only view which on the- 
 whole seems tenable is that it is a question of the real intention to- 
 be collected from the facts of each case, for arriving at which few 
 or no positive rules can be laid down. 
 
 There is no champerty in an agreement to enable the bona fide-- 
 purchaser of an estate to recover for rent due or injuries done to it 
 previously to the purchase. (6). 
 
 It has been decided in several modern cases that the purchase 
 of shares in a company for the purpose of instituting a suit at one's 
 own risk to restrain the governing body of the company from acts 
 unwarranted by its constitution, can not be impeached as savoring 
 of maintenance (c). It is worth while to note that it was recog- 
 nized as long ago as 21 Ed. 3 that a purchase of property pending- 
 a suit affecting the title to it is not of itself champerty: If pend- 
 ing a real action a stranger purchases the land of tenant in fee for 
 good consideration and not to maintain the plea, this is no chain- 
 perty"(d). • 
 
 The statute 32 H. 8, c. 9, "Against maintenance and embracery* 
 buying of titles, etc.," deserves special mention. After reciting- 
 the mischiefs of "maintenance embracery champerty subornation 
 of witnesses sinister labor buying of titles and pretensed rights of 
 persons not being in possession," and confirming all existing stat- 
 utes against maintenance, it enacts that: 
 
 " No person or persons, of what estate degree or condition soever he or- 
 
 (a) Harrington v. Long, 2 M. & K.. 590, as corrected by Knight v. Bowyer, 
 supra, and see Hunter v. Daniel, 4 Ha. at p. 430. But the true ground of the- 
 case seems the same as in Prosser v. Edmonds and De Hoghton v. Money, 
 namely, that the real object was to give the purchaser a locus standi to set aside- 
 a deed for fraud. 
 
 (6) Per Cur. (Ex. Ch.), "Williams v. Protheroe, 5 Bing. 309, 314. 
 
 («), See Bloxam v. Metrop. Ky, Co., 3-Oh. at p. 853. Supra, p. 108. 
 
 (d) 2 lio. Ab. 113 B.; Y. B. 21 E. 3. 10, pi. 33 (cited as 52 in Kolle);, but in, 
 60 Ass. 323, pi. 3, the general opinion of the Serjeants is contra. [Cp. 4 Kent r; 
 449.] 
 
 340; 
 
Champerty and maintenance. 301 
 
 'they bo, shall from henceforth bargain buy or sell,' or by any ways or 
 means obtain get or have, any pretensed rights or titles, or take promise 
 grant or covenant to have any right or title of any person or persons in 
 or to any manors lands tenements or hereditaments, but if such person 
 ■or persons which shall so bargain sell give grant covenant or promise the 
 same their antecessors or they by *whom he or they claim the. [301 
 ■same have been in possession of the same or of the reversion or re- 
 mainder thereof or taken the rents or profits thereof by the space of one 
 -whole year next before the said bargain covenant grant or promise 
 made "■ — 
 
 on pain of forfeiture of the whole value of the lands (a. 2), saving 
 the right of persons in lawful possession to buy in adverse claims 
 (s. 4) (a). There is no express saving of grants or leases by persons 
 in actual possession who have been so for less than a year ; but 
 either the condition as to time applies only to receipt of rents or 
 profits without actual, possession, or at all events the intention not 
 to touch the acts of owners in possession is obvious (b). 
 
 This, like the other statutes against maintenance and cham- 
 perty, is said to be in affirmance of the common law (6). It " is 
 formed on the view that possession should remain undisturbed. 
 Dealings with property by a person out of possession tend to dis-# 
 turb the actual possession to the injury of the public at large" (c). 
 It is immaterial whether the vendor out of possession has in truth 
 a good title or not (b). An agreement between two persons out 
 of possession of lands, and both claiming title in them, to recover 
 and share the lands, is contrary to the policy of this statute, if not 
 -champerty at common law : therefore where co-plaintiffs had in 
 fact conflicting interests, and it was sought to avoid the resulting 
 •difficulty as to the frame of the suit by stating an agreement to 
 • divide the property in suit between them, this device (which now 
 would in any case be disallowed on more general grounds) (d) was 
 unavailing ; for such an agreement, had it really existed, would 
 
 (a) [In most of the states of this country a conveyance by one who has a law- 
 ful claim to land held adversely by another is valid ; for the decisions in those 
 
 -states where such conveyances are prohibited, see notes to Ryall v. Eowle"s, 2 L. 
 C. Eq., 4th Am. ed. 1631.] 
 
 (b) By Mountague, C. J., Partridge v. Strange, Plowd. 88, cited in Doe d. 
 "Williams v. Evans, 1 C. B. 717 ; lb. 89. 
 
 (c) Per Lord Eedesdale, Cholmondeley v. Clinton, 4 Bligh, at p. 75. 
 
 (d) See Cooke v. Cooke, 4 D. J. S. 704 ; Pryse v. Pryse, 15 Eq. 86. 
 
 341 
 
302 CHAP. VI, UNLAWFUL AGREEMENTS. 
 
 have been unlawful, and would have subjected the parties to the> 
 penalties of the statute (a). 
 
 Where after the death of a lessee a stranger had entered, and. 
 remained many years in possession, a sale of the term by the ad- 
 ministrator of the lessee was held void as contrary to the statute,, 
 although in terms it only forbids sales of pretended rights,. 
 302] *etc, under penalties, without expressly making them 
 void (6). But the sale of a contingent right or a mere expectancy, 
 not being in the nature of a claim adverse to any existing posses- 
 sion, is not forbidden. The sale of a man's possible interest as the 
 devisee of a living owner, on the terms that he shall return the 
 purchase-money if he does not become the devisee, is not bad either - 
 at common law as creating an unlawful interest in the present 
 owner's death, or as a bargain for a pretended title under the stat- 
 ute (c). By the civil law, however, such contracts are regarded 
 as contra bonos mores. " Huiusmodi pactiones odiosae videntur et 
 plenae tristissimi et periculosi eventus," we read in a rescript of 
 Justinian on an agreement between expectant co-heirs as to the 
 disposal of the inheritance. The rescript goes on, quite in the 
 spirit of our own statute, to forbid in general terms all dealings 
 1; in alienis rebus contra domini voluntatem " (0. 2. 3. de pactis',, 
 30) (d). 
 
 (a) Cholmondeley v. Clinton, 4 Bligh, 1, 43, 82, per Lord Eldon and Lord.- 
 Kedesdale. 
 
 (b) Doe d. "Williams v. Evans, 1 0. B. 717; 14 L. J. C. P. 237. Cp. above as 
 to the construction of prohibitory statutes in general, p. 260. 
 
 (c) Cook v. Field, 15 Q. B.460; 19 L. J. Q. B. 441 ; [cp. Lowry v. Spear, 7 
 Bush, 451. The conveyance by one of his possible interest as devisee of a liv- 
 ing owner, or heir of his ancestor, is the conveyance of a naked possibility, and 
 ineffectual to pass any interest at law ; Wheeler's Ex'rs. v. Wheeler,' 2 Met. 
 (Ky.) 474; Needles' Ex'r. v. Needles, 7 O. 8. 432. 
 
 But equity will give effect to the conveyance as an agreement to convey, 
 which will be specifically enforced as soon as the grantor has acquired power 
 to perform it, if the consideration given was fair and no undue advantage was 
 taken ; Stover v. Eyclesheimer, 4 Abb. App. Dec. 309 ; McDonald v. McDon- 
 ald, 5 tfones Eq. 211 ; Power's Appeal, 63 Pa. St. 443 ; Fitzgerald v. Vestal, 4 
 Sneed, 258; Martin v. Marlow, 65 N. C. 695; Bayler v. Commonwealth, 4 Pa. 
 St. 37.] 
 
 (rf) By the French Code Civil, art. 1600 (followed by the Italian Code, art.. 
 1460). " On ne peut vendre la succession d'une personne vivante, meme de son 
 consentement :" cp. 791, 1130. The Austrian Code (§ 879) also expressly for- 
 bids the alienation of an expected inheritance or legacy. In Soman law ther 
 342 
 
AS TO CUSTODY OF CHILDKEN. 305 
 
 Proceedings in lunacy seem not to be within the general rules 
 as to champerty, as they are not analogous to ordinary litigation, 
 and their object is the protection of the person and property of the 
 lunatic, which is in itself to be encouraged ; and '' this object would 
 in many cases be impeded rather than promoted by holding that 
 all agreements relative to the costs of the proceedings or the ulti- 
 mate division of the property were void " (a). 
 
 As to maintenance in general, maintenance in the strict and 
 proper sense is understood to mean only the maintenance of an> 
 existing suit, not procuring the commencement of a new one. 
 But the distinction is in practice immaterial even in the criminal 
 law (b). It is of more importance that a transaction can not be 
 void for champerty or maintenance unless it be "something' 
 *against good policy and justice, something tending to pro- [303' 
 mote unnecessary litigation, something that in a legal sense is im- 
 moral, and to the constitution of which a bad motive in the same 
 sense is necessary" (c). Therefore, for example, a transaction can 
 not be bad for maintenance whose object is to enable a principal or 
 other person really interested to assert his rights in his own 
 name (c). Nor is it maintenance for several persons to agree to 
 defend a suit in the result of which they have, or reasonably believe 
 
 rule that the inheritance of a living person could not be sold is put only on the- 
 technical ground " quia in rerum natura non sit quod venierit" (D. 18. 4. de he- 
 red, vel actione vendita, 1, and see eod. tit. 7-11.) [In Abel v. Boynton, 7 Mass. 
 112, it was held that " a contract made by an heir to convey, on the death of 
 his ancestor, living the heir, a certain undivided part of what shall come to the 
 heir by descent, distribution, or devise, is a fraud upon the ancestor, productive 
 of public mischief, and void as well at law as in equity." In Pitch v. Fitch, 8 
 Pick. 480; Trull v. Eastman, 3 Met. 121; Curtis B.Curtis, 40 Me. 24, and 
 Jenkins v. Stetson, 9 Allen, 128, it was held that such a contract is valid if made 
 with the consent of the ancestor.] 
 
 (a) Persse v. Persse, 7 CI. & P. 279, 316, per Lord Cottenham. 
 
 (6) See Wood v. Downes, 18 Ves. at p. 125. 
 
 (c) Fisher v. Kamala Naicker, 8 Moo. Ind. App. 170, 187. This is not nec- 
 essarily applicable in England, being said with reference to the law of British. 
 India, where the English laws against maintenance and champerty are not spe- 
 cifically in force: see Earn Coomar Coondoo u. Chunder Canto Mookerjcu, 2 
 App. Ca. 186, 207-9. But it fairly represents the principles on which English 
 judges have acted in the modern cases. The result of the Indian case last 
 mentioned seems to be that in British India the courts are free to adopt the 
 doctrine of champerty, so far as they think it reasonable, as part of the general 
 judicial scheme of public policy. 
 
304 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 they have a common interest (a). But a bargain to have a share 
 of property to be recovered in a suit in consideration of maintain^ 
 ing the suit by the supply of money and evidence is not saved 
 from being champerty by the party's having a mere collateral in- 
 terest in the result of the suit (6). 
 
 Lineal kinship in the first degree or apparent heirship, and to a 
 certain extent, it seems, any degree of kindred or affinity, or the 
 relation of master and servant, may justify acts which as between 
 strangers would be maintenance : but blood relationship will not 
 justify champerty (c). 
 
 c. As to matters touching legal duties of individuals in the per- 
 formance of which the public have an interest. 
 
 Certain kinds of agreements are or have been considered unlaw- 
 ful and void as providing for or tending to the omission of duties 
 which are indeed duties towards individual's, but such that their 
 performance is of public importance. To this head must be referred 
 the rule of law that a father can not by contract deprive himself of 
 the right to the custody of his children (d), or of his discretion as 
 to their eciucation. He ■' can not bind himself conclusively by con- 
 304] tract to exercise in all events in a *particular way rights 
 which the law gives him for the benefit of his children and not for 
 his own." And an agreement to that effect — such as an agreement 
 made before marriage between a husband and wife of different reli- 
 gions that boys shall be educated in the religion of the father, and 
 girls in the religion of the moth or — can not be enforced as a con- 
 tract either at law or in equity (e). 
 
 After the father's death Courts of Equity have a certain discre- 
 
 (o) Findon v. Parker, 11 M. & W. 675. Cp. 2 Eo. Ab. 115 G. ; [Calle. Calef 
 13 Met. 362; Dorwin v. Smith, 35 Vt. 69; Thompson v. Marshall, 36 Ala. 504; 
 Tillman v. Searcy, 7 Humph. 347.] 
 
 (J) Hutley v. Hutley, L. B. 8 Q. B. 112, 
 
 (e) Hutley v. Hutley, L. E. 8 Q. B. 112. See 2 Eo. Ab. 115-116; [Barker v. 
 Barker, 14 "Wis. 131; Perrino v. Dunn, 3 Johns. Ch. 508, 519; Thalhimer v. 
 Brinkerhoff, 3 Cow. 623, 647; Gilleland v. Failing, 5 Denio,. 308. And one 
 may lawfully give money to a poor man to enable him to .carry on his suit; 
 Perrine v. Dunn, sup. ; State v. Chitty, 1 Bailey, 379, 401 ; Sherley v. Biggs, 11 
 Humph. 53, 57.] 
 
 (a) Ee Andrews, L. B. 8 Q. B. 153, and authorities there collected ; [In Te 
 Besant, 11 Ch. D. 508, 519 ; Johnson v. Terry, 34 Conn. 259, 263; Albert v. 
 Perry, 1 McCarter, 540 ; Gates v. Eenfroe, 7 La. Ann. 569.] 
 
 (e) Andrews v. Salt, 8 Ch. 622, 636. 
 344 
 
SEPARATION DEEDS. 304 
 
 iiion. The children are indeed to be brought up in hie religion, un- 
 less it is distinctly shown by special circumstances that it would be 
 ■contrary to the infant's benefit (a). When such circumstances are 
 in question, however, the Court may inquire -'whether the father 
 has so acted that he ought to be held to have waived or abandoned 
 his right to have his children educated in his own religion ;'" and 
 in determining this the existence of such an agreement as above 
 mentioned is material (b). The father's conduct in giving up the 
 maintenance, control, or education of his children to others may 
 not only leave the Court free to make after his death such provision 
 as suems in itself best; it may preclude him even from asserting 
 his rights in his lifetime (c). 
 
 Clauses in separation deeds or agreements for separation, pur- 
 porting to bind the father to give up the general custody of his 
 •children or some of them, have for the like reasons be.en held 
 void ; (d) and specific performance of an agreement to execute a 
 separation deed containing such clauses has been refused (e). 
 In one case, however, such a contract can be enforced ; namely 
 where there has been such misconduct on the father's part that the 
 Court would have interfered to take the custody of the children 
 from him in the exercise of its appropriate jurisdiction and on 
 grounds independent of contract. The general rule is only that 
 the custody of children can not be made a mere matter of bar- 
 
 (a) Hawksworth v. Hawksworth, 6 Ch. 539. 
 
 (6) Andrews v. Salt, 8 Ch. at p. 637. [" By a covenant in a separation deed 
 -executed after the passing of the Infants' Custody Act, 1873, a father agreed 
 that his infant daughter should remain in her mother's custody during eleven 
 months in each year. The mother held and promulgated atheistical opinions, 
 and refused to allow the child to receive any religious instruction. She also 
 published and circulated an obscene book. The child was made a ward of 
 ■ court, being then about eight years old. Held, that to bring up the child in the 
 religion of her father was a duty which the court owed to its ward, and was 
 unaffected by the covenant in the separation deed ; and also that the refusal of 
 religious instruction to the child, and the publication of the obscene book, were 
 in themselves sufficient grounds for removing her from the custody of her 
 mother*;" In re Besant, 11 Ch. D. 508.] 
 
 (c) Lyons v. Blenkin, Jae. 245, 255, 263 ; [Matter of Neal, 3 Am. Law Rev., 
 -678; Pool v. Gott, 14 Law Rep. 269; In re Goodenough, 19 Wis. 274.] 
 (</) [People v. Mercein, 3 Hill, 399.] 
 
 (e) Vansittart v. Vansittart, 2 De G. & J. 249, 259. As to the validity of 
 partial restrictions of the husband's right, Hamilton v. Hector, 6 Ch. 701; 13 
 Eq. 511. 
 
 345 
 
305 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 gain, not that the husband can in no circumstances bind himself" 
 not to set up his paternal rights (a). 
 
 305] *The law on this point is now modified by the Act 36 Vict. 
 c. 12, which enacts (s. 2 ) that-*- 
 
 " No agreement contained in any separation deed between the faiher- 
 and mother of an infant or infants shall be held to be invalid by reason 
 only of its providing that the father of such infant or infants shall give- 
 up the custody or control thereof to the mother ; Provided always that 
 no Court shall enforce any such agreement if the Court shall be of opin- 
 ion that it will not be for the benefit of the infant or infants to give effect 
 thereto." 
 
 The objections formerly entertained (as we have seen) first 
 against separation deeds in general, and afterwards down to quite 
 recent times against giving full effect .to them in Courts of Equity, 
 were based in part upon the same sort of grounds : and so are the 
 reusonsfor which agreements providing for a future separation 
 hiive always been held invalid. For not the parties alone, but so- 
 ciety at large is interested in the observance of the duties incident 
 to the marriage contract, as a matter of public example and gen- 
 er:il welfare. 
 
 Considerations of the same kind enter into the policy of the law 
 with respect to the sale of offices, also spoken of above. Such 
 transactions clearly involve the abandonment or evasion of distinct 
 legal duties. 
 
 On similar grounds, again, seamen's wages, or any remuneration 
 in lien of such wages, can not be the subject of insurance at common 
 law (&). The reason of this is said to be " that if the title to wages- 
 did not depend upon the earning of freight by the performance of 
 the voyage, seamen would want one great stimulus to exertion in 
 times of difficulty and danger " (c). This reason however is re- 
 moved in England by the .Merchant Shipping Act, 1854 (i7 & 18 
 Vict. c. 104, s. 183), which makes the right towages independent of 
 freight being earned. The question has not yet presented itself.for 
 decision whethe* the rule founded upon it is to be considered as re- 
 moved also. 
 
 d. As to agreements unduly limiting the freedom of individual 
 action. 
 ^ There are certain points in which it is considered that the 
 
 {a) Swift v. Swift, 4 D. F. J. 710, 714 ; and see the remarks in 6 Ch. 705 ; 19- 
 Eq. 520. 
 
 (6) Webster v. De Tastet, 7 T. B. 157. (c) Kent Comm. 3. 269. 
 346 
 
RESTRAINT. OP MARRIAGE. 306- 
 
 *ehoice and free action of individuals should be as unfettered [308 
 as possible. As a rule a man may bind himself to do or omit, or 
 to procure another to do or omit, any thing which the law does 
 not forbid to be done or left undone. The matters as to which this 
 power is specially limited on grounds of general convenience 
 are : — 
 
 (a) Marriage. 
 
 (y3) Testamentary dispositions. 
 
 (j) Trade. 
 
 (a) Marriage is a thing in itself encouraged by the law; the 
 marriage contract is moreover that which of all others should be the 
 result of full and free consent. Certain agreements are therefore- 
 treated as against public policy either for tending to impede this 
 freedom of consent and introduce unfit and extraneous motives 
 into the contracting of particular marriages, or for tending to hin- 
 der marriage in general. The first class are the agreements to 
 procure or negotiate marriages for reward which are known as 
 marriage brokage contracts. All such agreements are void (a) r 
 and services rendered without request in procuring or forwarding 
 a marriage (at all events a clandestine or improper one) are not 
 merely rto consideration, but an illegal consideration, for a subse- 
 quent promise of reward ; which promise, even if under seal, is 
 therefore void (b). The law is said to be comparatively modern 
 on this bead : however that may be, we venture to think that for 
 practical purposes and in the j>resent state of society it has already 
 become needless to say much of it (c). 
 
 The Austrian Code agrees with our law (§ 879). 
 We pass on to the second class, agreements "in restraint of mar- 
 riage " as they are called. An agreement by a bachelor or spinster 
 not to marry at all is clearly void (<2) ; so, it seems, would be a 
 bare agreement not to marry within a particular time (e). 
 
 (a) E.g. Cole v. 'Gibson, 1 Ves. Sr. 503. See Story, Eq. Jur., §g 260 sqq. ; 
 [Crawford v. Russell, 62 Barb. 92; Boynton v. Hubbard, 7 Mass. 112, 118 ; Pul- 
 ler v. Dame, 18 Pick. 472, 481.] 
 
 (6) Williamson v. Gihon, 2 Sell. & L. 357. 
 
 (c) In the Roman law these contracts were good apart from special legisla- 
 tion : they were limited as to amount (though with an expression of general 
 disapproval) by a constitution preserved only in a Greek epitome: C. 5. 1. de 
 sponsalibus, &o. 6. 
 
 id) Lowe v. Peers, Wilmot. 371 : where it is said that it is a contract to omit- 
 a moral duty, and " tends to depopulation, the greatest of all political sins." 
 
 It) Hartley v. Rice, 10 East, 22 (a wager). 
 
 ' ' 347 
 
U07 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 307] *In Lowe v. Peers (a) a covenant not to marry , any per- 
 son other than the covenantee was held void.,. A promise to many 
 nobody but A. B. can not be construed as a promise to marry A. B, 
 
 . -and is thus in mere restraint of marriage : and even if it could, it 
 was thought doubtful whether an unilateral covenant to marry A. 
 B. would be valid, A. B. not being bound by any reciprocal prom- 
 ise (6). Lord Mansfield threw out the opinion (not without fol- 
 lowers in our own time) (c), that even the ordinary contract by mu- 
 tual promises of marriage is not free from mischievous consequences. 
 
 'The decision was affirmed in the Exchequer Chamber, where it 
 was observed that: — 
 
 " Both ladies and gentlemen . . frequently are induced to promise 
 not to marry any other persons but the objects of their present passion; 
 
 . and if the law should not rescind such engagements, they would become 
 prisoners for life at the will of most inexorable jailors — disappointed 
 lovers" (d). 
 
 We do not know of any express decision, but it may be gathered 
 from the analogy of the cases. on conditions that a contract not to 
 marry some particular person, or any person of some particular 
 class, would be good unless the real intention appeared to be to 
 restrain marriage altogether ; and that a contract by a widow or 
 widower not to many at all would probably be good (e). The 
 learning of conditions in restraint of marriage (which always or 
 
 . almost always occur in wills) does not properly fall within our sub- 
 ject. Nevertheless it ma3^ be worth while to give a summary 
 statement of what is believed to be the result of the authorities. 
 
 Conditions in restraint of marriage : — 
 If precedent, are with trifling exceptions (if any) valid as to both real 
 . and personal estate (/ ). 
 
 (a) 4 Burr. 2225, in Ex. Oh. Wilm. 364. 
 
 (6) But of this qu.: for a refusal by A. B. to marry on request within a rea- 
 -sonable time would surely discharge the promisor on general principles. 
 
 (c) 4 Burr, 2230; per Martin, B. Hall v. Wright, E. B. & E. at p. 788; 29 L. 
 - J. Q. B. at p. 49. A bill to abolish the action for breach of promise of marriage 
 
 has been introduced in the present session of Parliament. [It failed to pass.] 
 
 (d) Wilm: 371. 
 
 (e) See Scott v. Tyler, in 2 Wh. & T. L. 0. and notes. 
 
 ( / ) [Ace. as to real but not as to personal estate, see Maddox v. Maddox, 11 
 ■ Gratt. 804, 816; Gough v. Manning, 26 Md. 347. In Sterling v. Sinniekson, 2 
 .South. 756, a sealed bill promising to pay a sum certain, provided the payee 
 348 
 
RESTRAINT OF MARRIAGE. 308" 
 
 If subsequent, — 
 
 General restraint. Good, it seems, as to real estate (see 1 Atk. 380, «..); 
 at any rate if the disposition, in whatever form, can be *taken to [308 
 show an intention not, of discouraging marriage but of making a pro- 
 vision until marriage : Jones v. Jones, 1 Q. B. D. 279 (a). 
 
 Bad. as to personal estate (b) or mixed fund (or a fund arising only.from 
 sale pf realty, semble): Bellairs v. Bellairs, 18 Eq. 510 — and this whether 
 there is a gift over or not (c). 
 
 Particular restraint. Good as to real estate (1 Ro. Ab. 418 X., pi. 6) ; 
 and good as to personal estate if there is a gift over, otherwise not (d). 
 
 These rules do' not apply to conditions restraining the second marriage 
 either of a woman : Newton v. Marsden, 2 J. & H. 356, or of a man : Allen 
 v. Jackson, 1 Ch. D. 399, revg. S. C. 19 Eq. 631 (e). 
 
 Nor to conditional limitations (as a gift until marriage) in a disposition of 
 either real or personal estate (/). 
 
 The Master of the Kolls observed in a late case (gr) that the rule 
 
 should not be married within six months from its date, was held to be illegal 
 and void. 
 
 (a) [It has been held that the rule forbidding conditions in restraint of mar- 
 riage has no application at all to real estate; Commonwealth v. Stauffer, 10 Pa. 
 St. 350; Phillips v. Medbury, 7 Conn. 568; McCullough's. Appeal, 12 Pa. St. 
 197 ; but see Williams v. Cowden, 13 Mo. 211, and cases cited in notes (e) and' 
 (/) below. j 
 
 (b) For a general account of the doctrine as to personalty, see Morley v. Ren- 
 noldson, 2 Ha. 570. 
 
 (c) [The following cases hold a condition as to personal estate, or a mixed 
 fund, or a fund arising only from sale of realty, bad, where there is no gift 
 over, good where there is: Cornell v. Lovett's Ex'rs., 35 Pa. St. 100; Parsons v. 
 Winslow, 6 Mass. 169; Mcllvaine v. Gethen, 3 Whart. 575 ; Hoopes v. Dundas, 
 10 Pa. St. 75 ; but see Gough v. Manning, 26 Md. 347.] 
 
 (d) [Maddox v. Maddox, 11 Gratt. 804; Schackelford v. Hall, 19 111. 212; 
 Graydon's Ex'rs. v. Graydon, 23 N. J. Eq. 229.] 
 
 (e) [Labarre ■». Hopkins, 10 La. Ann. 406; Phillips v. Medbury, 7 Conn. 568; 
 Schackelford v. Hall, 19 111. 212, 215 ; Dumey v. Schoeffler, 24 Mo. 170; Snider 
 v. Newsom, 24 Ga. 139. Contra, Waters v. Tazewell, 9 Md. 291 ; Parsons v. 
 Winslow, 6 Mass. 169 ; Mcllvaine v. Gethen, 3 Whart. 075 ; Hoopes v. Dundas, 
 10 Pa. St, 75; Coon v. Bean, 69 Ind. 474. Most of the cases which have arisen 
 in this country have been of conditions in restraint of second marriage, and ; . 
 the rules in question have generally been held applicable to them.] 
 
 ( f) [Hotz's Estate, 38 Pa. St. 422 ; Vance v. Campbell's Heirs, 1 Dana, 229; 
 Little v: Bardwell, 21 Tex. 597; Pringle v. Dunkley, 14 S. & M. 16; Bennett v. - 
 Kobinson, 10 Watts, 348 ; cp. Otis v. Prince, 10 Gray, 581. See on this subject- 
 generally', Story Eq. Jur., \\ 274-291 e.] 
 
 (a) Bellairs v. Bellairs, 18 Eq. 510, 516. 
 
 U 349 
 
"309 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 ^against conditions in restraint of marriage, at first adopted from 
 the ecclesiastical courts on grounds of public policy, has been so 
 modified in its application by courts of equity that it can now be 
 treated only as an arbitrary rule of construction. A glance at the 
 statement above will show, if we may be allowed to say so, the 
 complete justness of the remark. By the law of France promises 
 of marriage are invalid, " comme portant atteinte a la liborl6 il- 
 limitee qui doit exister dans les mariages" : nevertheless if actual 
 special damage (prejudice) can be shown to have resulted from non- 
 fulfillment of the promise, the amount of it can be recovered, it 
 would seem as due ex delicto rather than ex contractu (a). 
 
 /9. An agrSement to use influence with a testator in favor of a 
 particular person or object is void (6). On the other hand, it is 
 well established that a man may validly bind himself or his estate 
 by a contract to make any particular disposition (if in itself lawful) 
 by his own will (c). Such contracts were not recognized by Eoman 
 law (d), and even a gift inter vivos of all the donor's after-acquired 
 property would haye been bad as an evasion of the rule : but in 
 the modern civil law of Germany, as with us, a contract of this 
 sort (Erbver tragus good (e). -^ 
 
 309] *f. Agreements in restraint of trade. It would be impos- 
 sible to give an adequate account of this subject on the plan and 
 within the limits of this book ; and it is satisfactory to feel that 
 any attempt to do so is rendered needless by the place already 
 given to it in a work of no small authority (/) We shall here 
 only give the principles and the short results of the authorities, 
 with some mention of recent decisions. 
 
 The general rule is that a man ought not to be allowed to re- 
 
 (a) See notes in Sirey & Gilbert on Code Civ., art. 1142, Nos. 11-19. 
 
 (b) Debenham v. Ox, 1 Ves. Sr. 276 ; [Fuller v. Dame, 18 Pick/ 472, 481.] 
 
 (c) De Beil v. Thomson, 3 Beav. 469 ; s. c. nom. Hammersley v. Baron de Beil, 
 12 CI. & F. 45; Brookman's tr. 5 Ch. 182; [Parsell v. Stryker, 41 N. Y. 480; 
 Wright v. Tinsley, 30 Mo. 389 ; Gupton v. Gupton, 47 Mo. 37 ; Johnson v. Hub- 
 bell, 2 Stockt. 332; McGuire v. McGuire, 11 Bush, 142; Logan v. McGinnis, 12 
 Pa. St. 27; Robinson ■». Mandell, 3 Cliff. 169; Rivers v. Rivers' Ex'rs., 3 Des- 
 sau. 190.] 
 
 (d) Stipulatio hoc modo coneepta: Si heredem me non feceris, tantum dare 
 spondes? inutilis est, quia contra bonos mores est haec stipulatio. D. 45. 1. de 
 ■v. o. 61. ' 
 
 (e) Savigny, Syst. 4. 142-5. 
 
 ( /) See notes to Mitchel v. Reynolds, 1 Sm. L. C. 
 350 
 
RESTRAINT OP TRADE. 309 
 
 =etrain himself by contract from exercising any lawful craft or 
 business at his own discretion and in his own way. Partial re- 
 strictions, however, are admitted to the extent and for the reasons 
 to be presently stated. Thus an agreement between several mas- 
 ter manufacturers to regulate their wages and hours of work, the 
 suspending of work partially or altogether, and the discipline and 
 management of their establishments, by the decision of a majority 
 of their number, is in general restraint of trude as depriving each 
 one of them of the control of bis own business, and is therefore 
 not enforceable (a). It makes no difference that the object of the 
 combination is alleged to be mutual defense against a similar com- 
 bination of workmen. The case decides on the whole that neither 
 an agreement for a strike nor an agreement for a lock-out is en- 
 forceable by law. The Court of Exchequer Chamber thus ex- 
 pressed the general principle in the course of their judgment : — 
 
 " Prima facie it is the privilege of a trader in a free country, in all mat- 
 ters not contrary to law, to regulate his own mode of carrying it [his 
 trade] on according to his own discretion and choice. If the law has in 
 
 (a) Hilton v. Ef.kersley, 6 E. & B. 47, in Exoh. Ch., lb. 66 ; 24 L. J. Q. B. 
 353 ; 25 lb. 199. The dicta there leave it doubtful if the agreement would be 
 a criminal offense at common law. By the Trade Union Act, 1871, 34 & 35 
 Vict., o. 31, ss. 2-5, agreements of this kind between workmen are protected 
 against the criminal law, though not enforceable. It would be difficult to 
 maintain that the like agreements between masters, though not named, are not 
 within the meaning of the act. [An agreement by several commercial firms, 
 by which the3 r bound themselves for the term of three months not to sell any 
 India cotton bagging, except with the consent of the majority of their number, 
 was held unlawful in India Bagging Ass'n. v. Knox, 14 La. Ann. 168; and see. 
 Stanton v. Allen, 5 Denio, 434; Craft v. AlcConougby, 79 111. 346; Morris ltun 
 Coal Co. v. Barclay Coal Co., 68 Pa. St. 173 ; Arnot «.'Pittston and Elmira Coal 
 ■Co., 68 N. Y. 558; Central Salt Co. v. Guthrie, Sup. Ct. Ohio ; 10 C. L. J. 432; 
 Collins v. Locke, 4 App. Ca. 674. 
 
 "A contract between the lessor and lessee of a coal mine, that the lessee shall 
 exercise his influence over his employes to induce them and their families to 
 purchase goods, wares, and merchandise only at the store of the lessor; that 
 the lessee will not accept any order given upon him by any of his employes 
 for goods, etc., purchased of any other person or firm, nor give to any employe 
 an order on any other store, n« r any note or other evidence of indebtedness to 
 be transferred to any other store for goods, wares, or merchandise, is unlawful, 
 "being in restraint of trade to the injury of others, and tending to monopoly, 
 extortion, and oppression.'' Crawford v. Wick, 18 O. S. 190. 
 
 That a combination of workmen, for the purpose of enhancing wages, and 
 controlling the freedom of choice of masters as to whom they should employ is 
 unlawful, see People v. Fisher, 14 Wend. 10.] 
 
 351 
 
310 CHAP. IV. UNLAWFUL AGREEMENTS. 
 
 any matter \_qu. manner?] regulated or restrained his mode of doing this,, 
 the law must be obeyed. But no power short of the general law ought to- 
 restrain his free discretion " (a). 
 
 But it is not an unlawful restraint of trade for a certain num- 
 ber of proprietors or manufacturers to agree not to compete- 
 810] *with one another for a public contract, but to make what 
 is really a joint tender in the name of one of them (b). 
 
 The reasons against allowing agreements in unlimited restraint 
 of trade are set forth at large in the leading case of Mitchel v. Eey- 
 nolds (c), and at a more recent date (1837) were put somewhat 
 more concisely by the Supreme Court of Massachusetts, who held 
 a bond void which was conditioned that the obligor should never 
 carry on or be concerned in iron founding: — 
 
 " 1. Such contracts injure the parties making them, because they di- 
 minish their means of procuring livelihoods and a competency for their 
 families. They tempt improvident persons for the sake of gain to deprive- 
 themselves of the power to make future acquisitions. And they expose 
 such persons to imposition and oppression. 
 
 2. They tend to deprive the public of the services of men in the em- 
 ployments and capacities in which they may be most useful to the com- 
 munity as well as themselves. 
 
 3. They discourage industry and enterprise, and diminish the products- 
 of ingenuity and skill. 
 
 4. They prevent competition and enhance prices. 
 
 5 They expose the public _to all the evils of monopoly " (d). 
 
 The second and fifth of these reasons appear to be the strongest 
 
 (a) 6 E. & B. at p. 74-5. 
 
 (b) Jones v. North, 19 Eq. 426. The case seems not free from difficulties on 
 other grounds. [An agreement by several that one shall, on behalf of all, bid. 
 for a public contract, or at a sale by auction, is not unlawful, unless entered, 
 into for the purpose of stifling competition ; Kearney v. Taylor, 15 How. 494, 
 519; Huntington v. Bardwell, 46 N. H. 492; Bellows v. Russell, 20 N. H. 427; 
 Bank v. Sprague, 20 N. J. Eq. 159 ; Smiths. Greenlee, 2 Dev. L. 126 ; McMinn'3- 
 Legatees v. Phipps, 3 Sneed, 196; Smull v. Jones, 6 W. & S. 122 ; James v. Ful- 
 crod, 5 Tex. 512; Goode v. Hawkins, 2 Dev. Eq. 393; Phippen ». Stickney, 3- 
 Met. 384; Jenkins v. Frink, 30 Cal. 586; Breslin „. Brown, 24 O. S. 565; cp. 
 Atchesoni;. Mallon, 43 N. Y. 147. But an agreement not to bid, if made for 
 the purpose of stifling competition, is unlawful; lb. ; Hannah v. Fife, 27 Mich. 
 172 ; Gibbs v. Smith, 115 Mass. 592 ; Swan v. Chorpenning, 20 Cal. 182 ; Wooton 
 ». Hinkle, 20 Mo. 290; Gardiner v. Morse, 25 Me. 140; Ingram v. Ingram, 4- 
 Jones L. 188 ; Brisbane *. Adams, 3 N. T. 129.] 
 
 (e) 1 P. Wms. 181 ; 1 Sm. L. C. 406 [7 Am. ed. 705.] 
 (a!) Alger v. Thacker, 19 Pick. 51, 54. 
 352 
 
RESTRAINT OF TRADE. 311 
 
 and really efficient ones in themselves and to have been so as a, 
 matter of history. The first might be applied to almost any bad 
 bargain, and the third and fourth, so far as really admissible, are* 
 only partial statements of the fifth. 
 
 The admission of limited restraints is commonly spoken of as anr 
 exception to the general policy of the law. But it seems better to 
 regard it rather as another branch of it. Public policy requires 
 on the one hand that a man shall not by contract deprive himself 
 or the state of his labor, skill or talent; and on the other hand, 
 that he shall be able to preclude himself from competing with par- 
 ticular persons so far as necessary to obtain the best price for his 
 business or knowledge, when he chooses to sell it. Eestriction 
 which is reasonable for the protection of the parties in such a case 
 ■is allowed by the very same policy that forbids restrictions gener- 
 ally, and for the like reasons (a). 
 
 *It has been suggested by a learned American writer that in [311 
 its origin the doctrine was founded on a much more obvious and 
 immediate inconvenience than can now be assigned as the conse- 
 quence of allowing these contracts. It dates from the time when 
 a man could not lawfully exercise any trade to which he had not 
 been duly apprenticed and admitted : so that if he covenanted not 
 to exercise his own trade, he practically covenanted to exercise- 
 none — in other words not to earn his living at all (b). One might 
 even go a step farther : for by the statute 5 Bliz. c. 4 (now wholly 
 repealed by the Conspiracy and Protection of Property Act, 1875, 
 38 & 39 Vict. c. 86) which consolidated earlier Acts of the same- 
 kind, not only the common laborer, but the artificer in any one of 
 various trades, was compellable to serve in his trade if unmarried 
 or under the age of 30 years, and not a forty-shilling freeholder 
 or copyholder or "worth of his own goods the clear value of ten 
 pounds." An agreement by a person within the statute not to ex- 
 ercise his own trade might therefore be deemed, at any rate if un- 
 limited, to amount to an agreement to omit a legal duty which of 
 course is positively illegal. But it must not be forgotten that ab- 
 solute freedom of trade is positively asserted as the normal state 
 of things always assumed and upheld by the common law; where- 
 fore it may be doubted if any artificial explanation is wanted. It 
 was resolved in the Ipswich Tailors' case (c) that at the common 
 
 (a) James, V. C, Leather Cloth Co. v. Lorsont, 9 Eq. 345, 363. 
 b) Parsons on Contracts, 2. 255. (c) 11 Co. Rep. 53a, 546. 
 
 23 353 
 
312 CHAP. VI. . UNLAWFUL AGREEMENTS. 
 
 law no man could be prohibited from working in any lawful trade: 
 and it was said that 
 
 . " The stat. of 5 Eliz. 4, which prohibits every person from using or ex- 
 ercising any craft mystery or occupation, unless he has been an appren- 
 tice by the space of seven years, was not enacted only to the intent that 
 •workmen should be skillful, but also that youth should not be nourished 
 in idleness, but brought up and educated in lawful sciences and trades: 
 .and thereby it appears, that without an act of parliament (a) none can be 
 prohibited from working in any lawful trade.'' 
 
 And certain ordinances by which the tailors of Ipswich forbade 
 any one to exercise the trade of a tailor there until he had pre- 
 sented himself to the master and wardens and satisfied them of his 
 qualification, were held void, 'inasmuch as 
 
 312] *"' Ordinances for the good order and government of men of 
 trades and mysteries are good, but not to restrain any one in his lawful 
 mystery" (£). 
 
 It seerns certain that partial restraints were recognized as valid 
 at an early time. This appears from the Dyer's case in 2 H. 5 
 (Pasch. fo. 5, pi. 26), which has been sometimes misunderstood. 
 The action was debt on a bond conditioned that the defendant 
 should not use his craft of a dyer in (he same town with the plaint- 
 iff for half a year : a contract which would now be clearly good 
 if made upon valuable consideration. The defense, was that the 
 condition had been performed. To this Hull, J., said : " To my 
 mind you might have demurred to him that the obligation is void, 
 because the condition is against the common law ; and per Dieu (c) 
 if the plaintiff were here he should go to prison till he had made 
 fine to the King." But it does not appear that this dictum met 
 with assent at the time, and the parties proceeded to issue on the 
 question whether the condition had in fact been performed or not. 
 Hull's opinion however was approved by all the Justices of the C. 
 v P. in a blacksmith's case in 29 Eliz. of which we have two re- 
 ports (d). It does not appear- in either case what was the real oc- 
 casion or consideration of the contract ; very possibly the Courts 
 thought il; out of the question, when they had an instrument under 
 
 (a) So again in the case of Monopolies, lb. 876. 
 
 (6) Cp. the case of the Clothworkers' Co., mentions'! lb. 866. 
 
 (c) This expletive is not unique in the Year Books: nor is it, at that date, 
 altogether conclusive (as modern writers assume) to show that the speaker had 
 lost his teinper,- 
 
 (d) Moore, 242, pi. 379; 2 Leo. 210. 
 
 354 
 
RESTRAINT OF TRADE. 313 
 
 *eal before them, to listen to or look at any thing outside the con- 
 tents of the deed itself. For aught the reports show it may well 
 have been, .and not improbably was, the ordinary transaction of a 
 £ale of ^ood-will or the like in both the dyer's and the blacksmith's 
 -case. 
 
 The contracts in partial restraint of trade which occur in modern 
 books are chiefly of the following kinds : 
 
 Agreements by the seller of a business not to compete with the 
 buyer. 
 
 Agreements by a partner or retiring partner not to compete with 
 the firm. 
 
 Agreements by a servant or agent not to compete with his 
 master or employer after his time of service or employment is 
 *over. It by no means follows, however, that an agreement [313 
 in partial restraint of trade must fall within one of these descrip- 
 tions in order to be valid. 
 
 The rule established by the modern decisions is in effect as fol- 
 lows : 
 
 An agreement not to carry out a particular trade or business is 
 a valid contract if it satisfies the following conditions : 
 
 (i) It must be founded on a valuable consideration. 
 
 (ii) It must not be unlimited as to space. 
 
 (iii) And the restriction must not otherwise go beyond what in 
 the judgment of the Court is reasonably necessary for the protec- 
 tion of the other party, regard being had to the nature of the trade 
 or business (a). 
 
 (a) See per Selwyn, L. J., Gatt v. Tourle, 4 Ch. 659 ; and Leather Cloth Co. 
 v. Lorsont, 9 Bq. 349 ; Allsopp v. Wheatcroft, 15 Eq. 61 (arg.) ; [Oregon S. N. 
 Co. v. Winsor, 20 Wall. 64 ; Grasselli v. Lowden, 11 O. S. 349 ; Lange v. Werk, 
 2 O. S. 520; Chappel v. Brockway, 21 Wend. 157; Oilman v. Dwight, 13 Gray, 
 356; Cal. S. N. Co. v. Wright, 6 Cal. 258; Dunlop v. Gregory, 10 N. Y. 241; 
 Long v. Towl, .42 Mp. 545.; Hubhard v. Miller, 27 Mich. 15. 
 
 In the following cases the agreement was pronounced void, as not being lim- 
 ited in space: Alger v. Thacker, 19 Pick. 51; Lange v. Werk, 2 O. 8. 520; 
 Bank v. King, 44 N. T. 87; Callahan v. Donnolly, 45 Cal. 152; Taylors. 
 Blanchard, 13 Allen, 370; Moore v. Bonnet, 40 Cal. 251; Wright o. Eyder, 36 
 Cal. 342. 
 
 In the last three cases cited the restriction extended only over the State. In 
 Oregon S. N. Co. v. Winsor, 20 Wall. 64, 67, the Court say : " This' mode of 
 .applying the rule must be received with some caution. This country is' sub- 
 stantially one country, especially in all matters of trade and business ; and it 
 is manifest that cases may arise in which it would involve too narrow a view 
 
 355 
 
314 CHAP. VI. TTNLAWJTUr, AGREEMENTS. 
 
 It was at one time thought that the consideration must be not- 
 only valuable but adequate : but it is now clearly settled that this- 
 class of contracts forms no exception to the general rule. Here as 
 elsewhere the Court will not inquire into the adequacy of the con- 
 sideration. It is enough if a legal consideration of any value,, 
 however small, be shown (a). On the other hand the necessity of 
 showing some consideration is not dispensed with, or the burden 
 of proof shifted, by the contract being under seal (6). 
 
 It has been doubted in one recent case whether the condition as- 
 to limits of space (ji) is absolute, or liable to qualification by special 
 circumstances — in fact only a presumption which generally holds 
 good in determining what is on the whole a reasonable restriction 
 (iii) (c). But in this case the restriction, which extends to "any 
 part of Europe," was incident in substance to a contract not to- 
 communicate the means or processes of the particular manufac- 
 ture. It is settled that a contract not to divulge a trade secret need' 
 not be qualified at all : and if a man is entitled to restrain himself 
 from communicating the process he must be entitled to make that 
 contract effectual — if indeed it be more than expressing its full 
 meaning — by restraining himself to the same extent from carrying- 
 314] on a manufacture which would involve *the communication 
 of the process (d). A case not unlike this was Jones v. Lees (e), 
 
 of the subject to condemn as invalid a contract not to carry on a particular- 
 business within a particular Slate;" and the agreement in that case was held 
 valid, although the restriction extended over all of California and part of 
 Washington Territory ; and see Stearns v. Barrett, 1 Pick. 443 ; Morse Twist 
 Drill, &c, Co. u. Morse, 103 Mass. 73.] 
 
 (a) Hitchcock v. Coker, 6 Ad. & E. 438 (Ex. Ch.) ; Gravely v. Barnard, 18 
 Eq. 518; [McClurg's Appeal, 58 Pa. St. 51 ; Hubbard v. Miller, 27 Mich. 15; 
 Linn v. Sigsbee, 67 111. 75 ; Pierce v. Fuller, 8 Mass. 223 ; Guerand v. Dandelet, 
 32 Md. 561 ; Grasselli v. Lowden, 11 O. S. 349 ; Duffy v. Shokey, 11 Ind. 70-1' 
 Hitchcock v. Coker also settles that a limit in time is not indispensable; [Cook, 
 -w. Johnson, Sup. Ct. Conn., 22 Alb. L. J. 412 ; Guerand v. Dandelet, 32 Md. 561 ; 
 Bowser v. Bliss, 7 Blackf. 344 ; Goodman v. Henderson, 58 Ga. 567.] 
 
 (b) [Boss v. Sadgbeer, 21 "Wend. 166.] 
 
 (c) Leather Cloth Co. v. Lorsont, 9 Eq. 345, 353. [In Boussillon v. Roussil- 
 lon, 14 Ch. D. 851, the condition as to limits of space was denied to be abso- 
 lute, and a covenant unlimited as to space enforced ; and see Morse Twist Drill, 
 &c, Co. v. Morse, 103 Mass. 73.] 
 
 (d) 9 Eq. 354-5; cp. remarks in AUsopp.v. "Wheatcroft, 15 JEq. 64-5; [Jarvis- 
 •>>. Peck, 10 Paige, 118; Hard v. Seely, 47 Barb. 428; Vickery v. Weigh, 19> 
 Pick. 623; Peabody v. Norfolk, 98 Masss. 452, 459^460.] 
 
 (e) 1 H. & N. 189; 26 L. J. Ex. 9. 
 
 356 
 
, ,, RESTRAINT OF TRADE. 314- 
 
 -where the licensee of a patent for certain machinerj' bound him- 
 rself during the term of the license (without any express limit as 
 to space, but it seems to have been taken as confined by the context 
 to England) not to make or sell any machines of the specified kind 
 not fitted with the patent: here the restriction was held reasona- 
 ble, as being only co-extensive with the privilege. Again it is the 
 constant practice for a partner to bind himself absolutely not to 
 ■compete with the firm during the partnership (a): and so may a 
 servant in a trade bind himself absolutely not to compete with his 
 master during the service, however long that may last (b). On 
 the whole therefore the general rule seems to stand, but subject to 
 -definite exceptions which maybe given thus: 
 
 (iv) An agreement not to carry on a particular business may be 
 good though not limited as to space, if incident to a contract of 
 .partnership or service in the same business and limited to the du- 
 ration of the partnership or service (and to the purpose of pre- 
 venting competition with the firm or employer) (c), or if necessarily 
 -incident to a contract by the vendor of a business not to divulge 
 the means or processes of that business to any person other than 
 the purchaser. 
 
 At all events the restriction must in the particular case be rea- 
 sonable, and this is a question not of fact but of law (d). What 
 amounts of restriction have been held reasonable or not for the cir- 
 cumstances of different kinds of business is best seen in the tabular 
 statement of cases (down to 1854) subjoined to the report of Avery 
 v. Langford (e). It may be convenient to add the later decisions 
 in the same form. 
 
 (a) [Kinsman v. Parkhurst, 18 How. 289, 298.] 
 (6) Wallis v. Day, 2 M. & W. 273. 
 
 (c) It is perhaps needless to express this qualification, as the terms of the 
 :agreement itself, if not manifestly unreasonable, would be taken as the measure 
 - of what the parties thought necessary for that purpose. 
 
 (d) [Linn v. Sigsbee, 67 111. 75; Kellog v. Larkin, 3 Ghand.133, 141; Pierce 
 v. Puller, 8 Mass. 223.] 
 
 (e) Kay, 607. Note that Wallis v. Day, 2 M."& W. 273, did not decide that 
 a covenant unlimited in space was enforceable, but only that it did not prevent 
 an independent covenant to pay money contained in the same deed from being 
 
 -enforced: it might well have been held valid, however, as being incidental to 
 a contract of service. [That a contract in restraint of trade may be divisible, 
 
 .and hence valid in part and void in part, see Oregon S. N. Co. v. Winsor, 20 
 Wall. 64; Lange v. Werk, 2 O. S. 520; Peltz v. Bichele, 62 Mo. 171.; Beard v. 
 Dennis, 6 Ind. 200; Dean v. Emerson, 102 Mass. 480; ep. Moore v. Bonnet, 40 
 
 -Cal. 251.] 
 
 357 
 
H5 
 
 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 315] 
 
 *Bestriction held "Reasonable. 
 
 Name and Bate of 
 Case. 
 
 1855. Dendy v. 
 Henderson (a), 11 
 Ex. 194 ; 24 L. J. 
 Ex. 324. 
 
 1856, Jones v. 
 Lees (J), 1 H. & 
 N. 189 ; 26 L. J. 
 Ex.9. 
 
 1857. Ben well v. 
 Inns, 24 Beav. 
 307. 
 
 1859. Mumford v. 
 Gething, 7 0. B. 
 N. S. 305 ; 29 L. 
 J. C. P. 105. 
 
 1863. Harms v. 
 
 Parsons, 32 Beav. 
 
 328. v 
 1863. Clarkson v. 
 
 Edge, 33 Beav. 
 
 227. 
 1869. Catt v. 
 
 Tourle, 4 Ch. 654. 
 
 1869. LeatherCloth 
 Co. v. Lorsont(c), 
 9 Eq. 345. 
 
 1874. Gravely v. 
 Barnard, 18 Eq. 
 518. 
 
 1875. Printing & 
 Numerical Kegis- 
 tering Co.w.Samp- 
 son, 19 Eq. 462. 
 
 Trade or Business. 
 
 1875. 
 O'Neill, 
 179. 
 
 May 
 W. 
 
 N. 
 
 Solicitor. 
 
 Manufacture or 
 sale of slubbing 
 and roving frames 
 not fitted with' 
 plaintiff's patent 
 invention. 
 
 Cowkeeper, milk- 
 man, milkseller, 
 or milk carrier. 
 
 Traveling in lace 
 trade for any 
 house other than 
 plaintiff's. 
 
 Horse-hair manu- 
 facturer. 
 
 Gas meter manu- 
 facturer and gas 
 engineer. 
 
 Covenant by pur- 
 chaser of land 
 that vendor 
 should have ex 
 elusive right of 
 supplying beer. 
 
 Manufacture or 
 sale of patent 
 leather cloth. 
 
 Extent of Restriction Extent of Restriction 
 in Time. in Space. 
 
 21 years from de- 
 termination of de- 
 fendant's employ- 
 ment as manag- 
 ing clerk to plain- 
 tiff. 
 
 Continuance of de 
 fendant's license 
 from plaintiff to 
 use and' sell the 
 patented inven- 
 tion. 
 
 Continuance of de- 
 fendant's service 
 with plaintiff and 
 24 months after. 
 
 Unlimited. 
 
 Unlimited. 
 
 Surgeon. 
 
 Agreement by 
 vendor of patent 
 to assign to pur- 
 chaser all after- 
 acquired patent 
 rights of like na- 
 ture. 
 
 Solicitor 
 nant in 
 articles), 
 
 (cove- 
 clerk's 
 
 Ten years. 
 Unlimited. 
 
 Unlimited. 
 
 So long as plaintiff 
 or his assigns 
 should carry on 
 business. 
 
 Lifetime of vend- 
 ors. 
 
 Unlimited. 
 
 21 miles from par- 
 ish of Tormoham r 
 Torquay. 
 
 England? (hot- 
 limited in terms).. 
 
 Three miles from- 
 Charles Street, 
 Grosvenor Sq. 
 
 '■Any part of the- 
 same ground," 
 i.e. the district 
 in which defend- 
 ant was employed! 
 as traveler for- 
 plaintiffs. 
 
 200 miles from' 
 Birmingham. 
 
 20 miles from- 
 Great Peter St.,. 
 Westminster. 
 
 Any public house- 
 erected on the 
 land. 
 
 Europe j but to be- 
 construed as = 
 Great Britain or 
 United Kingdom, 
 semble, see p. 351. 
 Parish of Newict 
 & 10 miles round, 
 excepting the~ 
 town of Lewes, 
 
 Europe. 
 
 (a) Whether an agreement not to reside at a given place 
 as well as not to carry on business be good, quaere. 
 
 (b) See last page. (c) See p. 313. 
 
 358 
 
 London, Middle- 
 sex, and Essex ; 
 and unlimited as- 
 to acting for' 
 clients of plain- 
 tiff's firm, or any 
 one who had beea 
 such client during 
 the term of th&- 
 articles. 
 
RESTRAINT OF TRADE: LIMITS. 
 
 31& 
 
 Restriction held Reasonable*— Continued. 
 
 [Name and Date of 
 Case. 
 
 Trade or Business. 
 
 Extent of Restriction 
 in Time. 
 
 Extent of Restriction 
 in Space. 
 
 1880. Koussillon u. 
 Roussillon, 14 Ch. 
 D.351. 
 
 Agreement by em- 
 play e not to es- 
 tablish himself or 
 to associate him- 
 self with other 
 persons or housrs 
 in the champagne 
 trade. 
 
 Ten years after 
 leaving plaintiffs' 
 employ. 
 
 Unlimited. 
 
 ] 
 
 ^Restriction held Unreasonable. 
 
 m 
 
 [316 
 
 Name and Date of 
 Case. 
 
 1872. Allsopp v. 
 "Wheatcraft, 15 
 Eq ; . 59. 
 
 [1879. Collins v. 
 Locke, 4App. Ca. 
 674. 
 
 Trade or Business. 
 
 " Shall not directly 
 or indirectly sell, 
 procure orders for 
 the sale, or recom- 
 mend, or be in 
 any wise concern- 
 ed or engaged in 
 the sale or recom- 
 mendation . . . 
 of any Burton ale, 
 etc., or of any ale, 
 etc., brewed at 
 Burton or offered 
 for sale as such " 
 other . than ale, 
 etc., brewed by 
 plaintiffs. 
 
 Provision in an 
 agreement among 
 stevedores of Mel- 
 bourne, the object 
 of which was to 
 parcel out among 
 the parties to it 
 the stevedoring 
 business of that 
 port, and prevent 
 competition, at 
 least among them- 
 selves, that in the 
 case of ships pass- 
 ing into the hands 
 of certain mer- 
 chants who should 
 not choose to em- 
 ploy the party en- 
 titled under the 
 agreement, all the 
 
 v parties . thereto 
 should be depriv- 
 ed of the work. 
 
 Extent of Restriction 
 in Time. 
 
 During defendant's 
 service with plain- 
 tiffs (so far proba- 
 bly good) and two 
 years after. 
 
 Unlimited. 
 
 Extent of Restriction, 
 in Space. 
 
 Unlimited. 
 
 The port of Mel- 
 , bourne. 
 
 359 
 
'317 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 It is now settled, , after some little uncertainty, that distances 
 specified in contracts of this kind are to be measured as the crow 
 flies,' i.e., in a straight line on the map, neglecting curvature and 
 inequalities of surface. This is only a rule of construction, and 
 the parties may prescribe another measurement if they think fit, 
 such as the nearest mode of access (a). 
 
 It is clear law that a contract to serve in a particular business 
 for an indefinite time, or even for life, is not void as in restraint 
 of trade or on any other ground of public policy (b). It would 
 not be competent to the parties, however, to attach servile inci- 
 dents to the contract, such as unlimited rights of personal control 
 and correction, or over the servant's property (c). By the French 
 law indefinite contracts of service are not allowed Ql). It is un- 
 disputed that an agreement by A. to work for nobody but B. in 
 A.'s particular trade, even for a limited time, would be void in the 
 absence of a reciprocal obligation upon B. to employ A. (e). But 
 317] a promise by B. to employ A. may be *colleeted from the 
 whole tenor of the agreement between them, and so make the 
 agreement good, without any express words to that effect (/). 
 
 D. The judicial treatment of unlawful agreements in general. 
 
 Thus far of the various specific grounds on which agreements 
 are held unlawful. It remains for us to give as briefly as may be 
 the rules which govern our Courts in dealing with them, and 
 which are almost without exception independent of the particular 
 ground of illegality. The general principle, of course, is that an 
 unlawful agreement can not be enforced. But this alone is insuf- 
 ficient. We still have to settle more fully what is' meant by an un- 
 lawful agreement. For an agreement is the complex result of dis- 
 tinct elements, and the illegality must attach to one or more of 
 
 (a) Mouflet v. Cole, L. It. 7 Ex. 70, in Ex. Ch. 8 Ex. 32. 
 
 (b) Wallisu. Day, 2 M. &'W.273, 1 Sm. L. C. 377-8; [7th Am. ed. 719.] 
 The law of Scotland is apparently the same, according to the modern au- 
 thorities. 
 
 (c) See Hargrave's argument in Sommersett's ca., 20 St. T. 49, 66. 
 
 (d) Cod. Civ. 1780: On ne petit engager ses services qu' a temps, ou pour una 
 entreprise de'termine'e: so the Italian Code,;1628. 
 
 (e) See note (/), below, and cp. the similar doctrine as to promises of mar- 
 riage, supra. 
 
 (/) Pilkington v. Scott, 15 M. & W. 657; cp. Hartleys. Cummings, 5 C. B. 
 217 ; [cp. Palmer v. Stebbins, 3 Pick. 188.] 
 3b0 
 
GENERAL RULES : AS TO CONSIDERATION OR OBJECT. , 318 
 
 those elements in particular. It is material whether it be found in 
 the promise, the consideration or the ultimate purpose. Again 
 there are questions of evidence and procedure for which auxiliary 
 rules are needed within the bounds of purely municipal law. 
 Moreover, when the jurisdictions within which a contract is made, 
 is to be performed and is sued upon, do not coincide, it has to be 
 ascertained by what local law the validity of the contract shall be 
 determined (conflict of laws in space) : again the law may be 
 changed between the time of making the contract and the time of 
 performance (conflict of laws in time, as it has been called). 
 
 This general division is a rough one, but will serve to guide the 
 -arrangement of the following statement. 
 
 Unlaw fulness of agreement as determined by particular elements. 
 
 1. A lawful promise made for a lawful consideration is not in- 
 -valid only by reason of an unlawful promise being made at the 
 same time and for the same consideration. 
 
 In Pigot's case (a) it was resolved that if some of the covenants 
 of an indenture or of the conditions indorsed upon a bond are 
 against law, and some good and lawful, the covenants or condi- 
 tions which are against law are void ab initio and the others 
 *stand good. Accordingly " from Pigot's case, 6 Co. Eep. [818 
 26 (b), to the latest authorities it has always been held that when 
 there are contained in the same instrument distinct engagements . 
 by which a party binds himself to do certain acts, some of which 
 are legal and some illegal at common law, the performance of those 
 which are legal may be enforced, though the performance of those 
 which are illegal can not" (c). 
 
 It was formerly supposed that where a deed is void in part by 
 statute it is void altogether : but this is not so. "Where you can 
 not sever the illegal from the legal part of a covenant, the contract 
 is altogether void ; but where you can sever them, whether the il- 
 
 (a) H Co. Rep. 27J. 
 
 (A) Sic in the report. Parts 11, 12, and 13 of Coke's Eeports form vol. 6 in 
 the edition of 1826. 
 
 (c) Bank of Australasia v. Breillat, 6 Moo. P. C. 152, 201 ; [Gelpke v. Du- 
 buque, 1 Wall. 221 ; Erie Ewy. Co. acts. Union L. & E. Co., 35 N, J. L. 240; 
 Presbury v. Fisher, 18 Mo. 50 ; Leavitt v. Palmer, 3 N. Y. 19, 37 ; Ohio v. Board 
 of Education, 35 O. S. 519, 527. Contra, Lindsay v. Smith, 78 N. C. 328. 
 
 In the case of an alternative promise, one branch of which is legal and the 
 -other illegal, the legal branch can be enforced ; Hanauer v. Gray, 25 Ark. 350.J 
 
 361 
 
318 CHAP. "VI. UNLAWFUL AGREEMENTS. 
 
 legality be created by statute or by the common law, you may- 
 reject the bad part and retain the good" (a). 
 
 2. If any part of the consideration for a promise or set of prom- 
 ises is unlawful, the whole agreement is void (b). 
 
 " For it is impossible in such case to apportion the weight of 
 
 (a) Per "Willes, J., Pickering v. Ilfracombe Ey. Co., L. E. 3 C. P. at p. 250;. 
 [United States v. Bradley, 10 Pet. 343, 360-363; Hynda v. Hays, 25 Ind. 31, 39; 
 State v. Pindley, 10 Ohio, 51.] 
 
 (J) [Carleton v. Whitcher, 5 N. H. 196 ; Pettit's Adm'r. v. Pettit's Distributees,. 
 32 Ala. 288 ; Collins v. Murrell, 2 Met. (Ky.) 163 ; Chandler v. Johnson, 39 Ga. 85 ;.: 
 Kimbrough v. Lane, 11 Bush, 556; Pilson's Trustees v. Himes, 5 Pa. St. 452; 
 Bixby v. Moore, 51 N. H. 402; Bank v. King, 44 N. Y. 37; Perkins v. Cum- 
 mings, 2 Gray, 258; Woodruffs. Hinman, 11 Vt. 592; Snider v. "Willey, 33- 
 Mich. 483. 
 
 "When a note is given in payment of an account, some of the items of which 
 »i e legal and some illegal, although an action would still lie for so much of the- 
 awount as is made up of lawful items, the note itself is entirely void. That the- 
 pliiintiff can not recover on the note to the extent of the lawful items, although 
 they are distinctly severable from the unlawful, see Widoe v. Webb, 20 O. S. 
 4S1 ; Carleton v. Woods, 8 Post. 290; Deering v. Chapman, 22 Me. 488. Con- 
 tru, that he may, Hynds v. Hays, 25 Ind. 31; Yundt u. Koberts, 5 S. & E. 139; 
 Piazier v. Thompson, 2 W. & S. 235. 
 
 • It is no defense to an action on a note given in part payment of an account, 
 that part of the account is for goods sold in violation of law, if the amount of" 
 items for goods lawfully sold exceeds the amount of the note." "Warren v. 
 Chapman, 105 Mass. 87. 
 
 In the case of a contract upon mutual' promises the combined operation of" 
 propositions 1 and 2 above would make the validity of the agreement depend, 
 upon who was plaintiff in the action. If A. promise to give B. $100, and B. 
 promise in consideration thereof to do two acts, one lawful and the other un- 
 law, ul, by proposition 1 if A. sue he can enforce so much of B.'s promise as is 
 lawful, but by proposition 2 if B. sue he can not recover at all, and A.'s prom- 
 ise is declared void. But in such an agreement the sole consideration of* 
 the promise or promises on one side is the promise or promises on the other; if, 
 then, A.'s promise is void, what consideration is there for either part of B.'s ■ 
 promise? 
 
 •Surely it is impossible to find any reason whatever for holding that upon a. 
 promise to pay a certain sum in lawful money in consideration of a loan which, 
 was part lawful money and part unlawful paper, nothing shall be recovered; 
 and yet that upon a promise to pay a sum, part in lawful money and part in 
 unlawful paper, in consideration of a loan of lawful money, there shall be a re- 
 covery to the extent pf the pro,mise to pay lawful money. If illegality shall 
 be held to vitiate the whole contract in the one case, it ought to be, so held aUo 
 in the other. The consideration in the one ease is- as readily separable as the; 
 promise to pay is in the other.'' Hynds v. Hays, 25, Ind. 31.] 
 362 
 
UNLAWFUL USE OF SUBJECT-MATTER. 319" 
 
 each part of the consideration in inducing the promise " (a). In 
 other words, where independent promises are in part lawful and 
 in part unlawful, those which are lawful can be enforced ; but 
 where any part of an entire consideration is unlawful, all promises 
 founded upon it are void. 
 
 3. When the immediate object of an agreement is unlawful the 
 agreement is void. 
 
 This is an elementary proposition, for which it is nevertheless 
 rather difficult to find unexceptionable words. We mean it to 
 cover only those cases where either the agreement could not be- 
 performed without doing some act unlawful in itself, or the per- 
 formance is in itself lawful, but on grounds of public policy is not 
 allowed to be made a matter of contract. The statement is mate- 
 rial chiefly for the sake of the contrasted class of cases under the 
 next rule. 
 
 4. When the immediate object or consideration of an agreement 
 is not unlawful, but the intention of one or both parties in making 
 it is unlawful, then — 
 
 *If the unlawful intention is, at the date of the agreement, [319 
 common to both parties, or entertained by one party to the knowl- 
 edge of the other, the agreement is void. 
 
 If the unlawful intention of one party is not known to the other 
 at the date of the agreement, there is a contract voidable at the 
 option of the innocent party if he discovers that intention at any- 
 time before the contract is executed. 
 
 Here it is necessary to consider what sort of connection of the 
 subject-matter of the agreement with an unlawful plan or purpose 
 is enough to show an unlawful intention that will vitiate the agree- 
 ment itself. This is not always easy to determine. In the words- 
 of the Supreme Court of the United States : — 
 
 " Questions upon illegal contracts have arisen very often both 
 in England and in this country; and no principle is better settled 
 than that no action can be maintained on a contract the considera- 
 tion of which is either wicked in itself or prohibited by law. How 
 far this principle is to affect subsequent or collateral contracts, the 
 direct and immediate consideration of which is not immoral or- 
 illegal, is a question of considerable intricacy " (6) : or perhaps we 
 
 (a) Leake on Contracts, 400 [cp. 2d ed. 779] ; "Waite v. Jones, 1 Bing. N. C.~ 
 656, 662. 
 
 i j>) Armstrong v. Toler, 11 "Wheat, at p. 272. 
 
 363 
 
•320 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 -should rather, say it is a question on which any attempt to lay 
 ■down fixed and exhaustive rules in detail must lead to considerable 
 intricacy : at the date of these remarks however (1826) the law 
 was much less clear on specific points than it is now. 
 
 We have in the first. place a well marked, class of transactions 
 where there is an agreement for the transfer of property or pos- 
 session for a lawful consideration, but for the purpose of an unlaw- 
 ful use being made 'of it. All agreements incident to such a trans- 
 action are void ; and it does not matter whether the unlawful pur- 
 pose is in fact carried out or not (a). The later authorities show 
 that the agreement is void, not merely if the unlawful use of the 
 subject-matter is part of the bargain, but if the intention of the 
 one party so to use it is known to the other at the time of the 
 agreement (b). Thus money lent to be used in an unlawful man- 
 320] nor can not be recovered (c). It is true that *monoy lent 
 to pay bets can be recovered, but that, as we have seen, is because 
 there is nothing unlawful in either making a bet or paying it if 
 lost, though the payment can not be enforced (d). If goods are 
 
 -sold by a vendor who knows that the purchaser means to apply 
 them to an illegal or immoral purpose, he can not recover the 
 price : it is the same of letting goods on hire (e). If a building is 
 
 (a) Gas Light & Coke Co. v. Turner, 5 JBing. N. C. 666, in Ex. Ch., 6 lb. 324. 
 
 (6) Pearcev. Brooks, L. E. 1 Ex.213. 
 
 (c) Cannan v. Bryce, 3 B. & Aid. 179; [Whiter. Buss, 3 Cush.448; Pluraeru. 
 .Smith, 5 N. H. 553; Cutler v. Welsh, 43 N. H. 497;' Euckman v. Bryan, 3 Denio, 
 "340; Insurance Co. v. Spradley, 46 Ala. 98; Critcher v. Holloway, 64 N. C. 526. 
 •Contra, Jones v. Bank, 9 Heisk. 455; McGavoek ». Puryear, 6 Coldw. 34; 
 "Walker v. Jeffries, 45 Miss. 160 ; Howell v. Stewart, 54 Mo. 400.] 
 
 (a) [But see supra, p. 265.] 
 
 (e) Pearee v. Brooks, L. E. 1 Ex. 213. [An action will not lie for the price 
 -of goods sold, which the seller knew were purchased for the purpose of being 
 used in aid of the rebellion. " With whatever impunity a man may lend money 
 or sell goods to another who he. knows intends to devote them to a use that is 
 only malum prohibitum, or of inferior criminality, he can not do it, without 
 turpitude, when he knows, or has every reason to believe, that such money or 
 goods are to be used for the perpetration of a heinous crime, and that they were 
 procured for that purpose." Hanauer v. Doane, 12 Wall, 342, 346; Tatmn v. 
 Kelly, 25 Ark. 209; Oxford Iron Co. v. Quinchett, 44 Ala. 487; Milner »., Pat- 
 ton, 49 Ala. 423 ; Eoquemore -o. Alloway, 33 Tex. 461 ; Smitherman v. Sanders, 
 -C4 N. C. 522 ; Lewis v. Latham, 74 N". C. 283. Contra, Euckman v. Lightner's 
 Exr's., 24 Gratt. 19. . .- ^ 
 
 The rule generally prevailing in this country is that the bare knowledge of 
 tthe vendor that the property sold is designed to be applied to a use unlawful, 
 
 at>4 
 
UNLAWFUL USE OF SUBJECT-MATTER. 320" 
 
 demised in order to be used in a manner forbidden by a Building - 
 Act, the lessor can not recover on any covenant in the lease (a). 
 And in like manner if the lessee of a house which to his knowl- 
 edge is used by the occupiers for immoral purposes, assigns the 
 lease, knowing that the assignee means to continue the same use, 
 he can not recover on the assignee's covenant to indemnify him 
 against the covenants of the original lease (&). It does not matter 
 whether the seller or lessor does or does not expect to be paid out 
 of the fruits of the illegal use of the property (c). 
 
 An owner of property who has contracted to sell or let it, but 
 finds afterwards that the other party means to use it for an unlaw- 
 ful purpose, is entitled (if not bound) to rescind the contract; nor 
 
 but not amounting to a felony, or crime involving great moral turpitude, will, 
 not prevent a recovery based on the sale; Tracy v. Talmadge, 14 N. Y. 162; 
 Bickell v. Sbeets, 24 Ind. 1; Michael v. Bacon, 49 Mo. 474; Cheney v. Duke, 10- 
 G. & J. 11 ; Steele v. Curie, 4 Dana, 381 ; Bishop v. Honey, 34 Tex. 252; Arm- 
 field v. Tate, 7 Ired. L. 258; Hubbard v. Moore, 24 La. Ann. 591; McKinney 
 v. Andrews, 41 Tex. 363. But see Finch v. Mansfield, 97 Mass. 89; Suite 
 Woodhall, 113 Mass. 391; Wilson v. Stratton, 47 Me. 120; Territt v. Bartlett,. 
 21 Vt. 184; McConihe v. McMann, 27 Vt. 95. 
 
 In Ely v. Webster, 102 Mass. 304, and Adams v. Couillard, 102 Mass, 167, it 
 was held that at all events mere reasonable cause of belief, without actual- 
 knowledge, on the part of the seller of goods, that the purchaser buys for an 
 unlawful use, does not invalidate the sale. 
 
 If goods are sold in a state where the sale is lawful, although the vendor- 
 knows that the purchaser buys them for the purpose of resale in another state 
 where their sale is unlawful, he may recover their price in the latter state ; Hill 
 v. Spear, 50 N. H. 253; Green v. Collins, 3 Cliff. 494; Sortwell v. Hughes, 1 
 Curt. 244; Tuttle v. Holland, 43 Vt. 542; Smith v. Godfrey, 8 Post. 379; Web- 
 ber v. Donnelly, 33 Mich. 469; Jameson v. Gregory's Ex'rx., 4 Met. (Ky.^363 ;■ 
 Mclntyre v. Parks, 3 Met. 207. 
 
 But, if in any case, the vendor does any thing beyond making the sale to aid 
 the unlawful purpose of the vendee, he can not recover; Arnot v. Pittston, &c, 
 Coal Co., 68 N. Y. 558; Foster v. Thurston, 11 Cush. 322; Skiff v. Johnson, 57" 
 N. H. 475; Aiken v. Blaisdell, 41 Vt. 655; Gaylord v.< Soragen, 32 Vt. 110; 
 Banchor v. Mansel, 47 Me. 58.] 
 
 '(a) Gas Light & Coke Co. v. Turner, 5 Bing. (N. C.) 666, in Ex. Cti., 6 lb. - 
 324. [If a building be let with intent that it should be used for an unlawful 
 purpose, the landlord can not recover the rent ; Ralston ». Boady, 20 Ga. 449. 
 
 That bare knowledge of the lessor of the lessee's intended unlawful use of 
 the premises will, not prevent his recovering rent, see Updike v. Campbell, 4 E._ 
 D. Smith, 570.] 
 
 (J) Smith v. White, 1 Eq. 626. [See Riley v. Jordan, 122 Mass. 231.] 
 
 (c) Pearce v. Brooks, L. R. 1 Ex. 213; see note (e), preceding page. 
 
 365 
 
321 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 is he bound to give his reason at the time of refusing to perform it. 
 He may justify the refusal afterwards by showing the unlawful 
 purpose, though he originally gave no reason at all, or even a dif- 
 ferent reason (a). 
 
 But a completely executed transfer of property or an interest in 
 property, though made on an unlawful consideration, or, it is con- 
 ceived, for an unlawful purpose known to both parties, is valid 
 both at law and in equity (6), and can not afterwards be set aside. 
 And an innocent party who discovers the unlawful intention of the 
 other after possession has been delivered under the contract, is 
 not entitled to treat the transaction as void and resume posses- 
 sion (c). 
 
 321] *As with contracts voidable on other grounds, this rule ap- 
 plies, it is conceived, only where an interest in possession has been 
 given by conveyance or delivery. The vendor who had sold goods 
 so as to pass the general property, but without delivery, or the 
 lessor who had executed a demise to take effect at a future day, 
 might rescind the contract and stand remitted to his original pos- 
 session on learning the unlawful use of the. property designed by 
 the purchaser or lessee. 
 
 On the same principle an insurance on a ship or goods is void if 
 the voyage covered by the insurance is to the knowledge of the. 
 owner unlawful (which may happen by the omission of the stat- 
 utory requirements enacted for the protection of seamen and pass- 
 engers, as well as in the case of trading with enemies or the like). 
 " Where the object of an Act of Parliament is to prohibit a voyage, 
 the illegality attaching to the illegal voyage attaches also to the 
 policy covering the voyage," if the illegality be known to the as- 
 sured. But acts of the master or other persons not known to the 
 
 (a) Cowan v. Milbourn, L. B. 2 Ex. 230 ; see per Bramwell, B., ad fin. [But 
 see O'Brien v. Brietenbach, 1 Hilt. 304.] 
 
 (4) Ayerst v. Jenkins, 16 Eq. 257 ; [Moore v. Adams, 8 Ohio, 372 ; Thomas 
 v. Cronise, 16 Ohio, 54; Bailroad Co. v. Mathers, 71 111. 592, 598; Levet v. His 
 Creditors, 22 La. Ann. 105 ; Adams v. Barrett, 5 Ga. 404, 414 ; Setter v. Alvey, 
 15 Kan. 157; Dixon v. Olmstead, 9 Vt. 310; Worcester v. Eaton, 11 Mass. 368; 
 Dumont v. Dufore, 27 Ind. 263 ; Eateliffe v. Smith, 13 Bush, 172 ; supra, p. 269.] 
 
 (c) Feret v. Hill, 15 C. B. 207; 23 L.'j. C. P. 185, where an interest in realty 
 had passed; but qu. if the lessor could not have had the lease set' aside in equity. 
 As to chattels, contra per Martin, B, in Pearce v. Brooks, L. R. 1 Ex. 217; but 
 sthis seems unsupported: see L. B. 4 Q. B. 311, 315. 
 366 • 
 
ULTIMATE PURPOSE UNLAWFUL. 322 
 
 •owner do not vitiate the policy, though they may be such as to 
 render the voyage illegal (a). 
 
 An agreement may be made void, by its connection with an un- 
 lawful purpose, though subsequent to the execution of it. 
 
 To have that effect, however, the connection must be something 
 more than a mere conjunction of circumstances into which the un- 
 lawful transaction enters so that without it there would have been 
 no occasion for the agreement. It must amount to n unity of de- 
 sign and purpose such that the agreement is really part and parcel 
 of one entire unlawful scheme. This is well shown by some cases 
 -decided in the Supreme Court of the "United States, *and [322 
 spreading over a considerable time. Tbey are the more worth 
 special notice as they are unlike any thing in our own books. In 
 Armstrong v. Toler (6) the point, as put by the Court in a slightly 
 simplified form, was this: "A. during a war contrives a plan for 
 importing goods on his own account from the country of the enemy, 
 and goods are sent to B. by the same vessel. A. at the request of 
 B. becomes surety for the payment of the duties [in fact a com- 
 muted payment in lieu of confiscation of the goods themselves] 
 which accrue on the goods of B., and is compelled to pay them ; 
 can he maintain an action on the promise of B. to return this 
 money ? " The answer is that he can, for the " contract made with 
 the government for the payment of duties is a substantive inde- 
 pendent contract entirely distinct from the unlawful importation." 
 But it would be otherwise if the goods had been imported on a 
 joint adventure by A. and B. In McBlair v. Gibbes (c) an assign- 
 ment of shares in a company was held good as between the parties 
 though the company had been originally formed for the unlawful 
 purpose of supporting the Mexicans against the Spanish Govern- 
 
 («) Wilson v. Rankin, L. R. 1 Q B. 163 (Ex. Oh.); Dudgeon „. Pembroke, L. 
 R. 9 Q. .13. 581,585, perQuain, J., and authorities there referred to ; [3 Kent, 262; 
 and see Kelly v. Insurance Co., 97 Mass. 288; Johnson v. 'Insurance Co., 1:27 
 Mass. 555; eases of contracts of insurance against fire.] Cp. further, on the 
 general head of agreements made with an unlawful purpose, Hanauer v. Doane, 
 12 Wall. 342. In Sprott v. U. S., 20 lb. 459, it was held that a buyer of cotton 
 from the Confederate Government, knowing that the purchase-money would 
 be applied in support of the rebellion, could not be recognized by the U. S. 
 Courts as owner of the cotton : diss. J?ield, J., on the grounds (which seem 
 right) that it was a question not of contract, but of ownership, and that in de- 
 ciding on title to personal property the de factd government existing at the 
 ttime and place of the transaction must be regarded. 
 
 {b) 11 Wheat. 258, 269. (c) 17 How. 232. 
 
 367 
 
323 CHAP. ' VI. UNLAWFUL AGKEEMENTS. 
 
 ment before tbo independence of Mexico was recognized' by the- 
 United States. In Miltenberger v. Cooke (a) the facts were these. 
 In 1866 a collector of United States revenue in Mississippi took 
 bills in payment when be ought to have taken coin, his reason 
 being that the state of the country made it still unsafe to have- 
 much coin in hand. In account with the government he charged 
 himself and was charged with the amount as if paid in coin. Then 
 he sued the acceptors on the bills, and it was held there was no- 
 such illegality as to prevent him from recovering. If the mode of 
 payment was a breach of duty as against the federal government,, 
 it was open to the government alone to take any objection to it. 
 
 We return to our own Courts for a case where on the other- 
 hand the close connection with an illegal design was established' 
 and the agreement held bad. In Fisher v. Bridges (6) the plaint- 
 iff sued the defendant on a simple covenant to pay money. The 
 defense was that the covenant was in fact given to secure payment 
 323] of part of the purchase-money of ^certain leasehold prop- 
 erty assigned by the plaintiff to the defendant in pursuance of an 
 unlawful agreement that the land should be resold by lottery con- 
 trary to the Statute (c). The Court of Queen's Bench held unan- 
 imously that the covenant was good, as there was nothing wrong- 
 in paying the mone}', even if the unlawful purpose of the original 
 agreement had rn fact been executed : and the case was likened to 
 a bond given in consideration of past cohabitation. But the Court 
 of Exchequer Chamber unanimously reversed this judgment, hold- 
 ing that the covenant was in substance part of an illegal transac- 
 tion, whether actually given in pursuance of the first agreement or 
 not. " It is clear that the covenant was given for payment of the- 
 purchase-money. It springs from and is a creature of the illegal 
 agreement; and as the law would not enforce the original con- 
 tract, so neither will it allow the parties to enforce a security for" 
 the purchase money which by the original bargain was tainted ■ 
 with illegality." They further pointed out that the case of a bond 
 given for past cohabitation was not analogous, inasmuch as past- 
 cohabitation is not an illegal consideration but no consideration at 
 all. But "if an agreement had been made to pay a sum of money 
 
 (a) 18 Wall. 421. 
 
 (6) 2 E. & B. 118 ; 22 L. J. Q. B. 270 ; in Ex. Ch. 3 E. & B. 642 ; 23 L. J. Q_ 
 B. 276. 
 
 (c) 12 Geo. 2, o. 28, 8. 1. 
 368 
 
ULTIMATE PURPOSE UNLAWFUL. * 324 
 
 In consideration Of future cohabitation, and after cohabitation, the- 
 money being unpaid,. a bond had been given to secure that money,, 
 that would be the same case as this; and such a bond could not. 
 under such circumstances be enforced." 
 
 The principle of this judgment has been criticised by considera- 
 ble authority as " vague in itself and dangerous as a precedent" (a).. 
 The actual decision, however, does not appear to require any thing- 
 wider than this — that where a claim for the payment of money as 
 on a simple contract would be bad on the ground of illegality, a 
 subsequent security for the same payment, whether given in pursu- 
 ance of the original agreement or not, is likewise not enforceable: 
 or. more shortly — 
 
 5. Any security for the payment of money under an unlawful 
 agreement is itself void, even if the giving of the security was not 
 part of the original agreement. 
 
 To this extent as least the principle of Fisher v. Bridges 
 *has been repeatly acted on (6). In G-uere v. Mare (b) a [324 
 policy of assurance was assigned by deed as a further security for 
 the payment of a bill of exchange. The bill itself was given to 
 secure a payment by waj^ of fraudulent preference to a particular 
 creditor, and accepted not by the debtor himself but by a third 
 person. It was held, both on principle and on the authority of 
 Fisher v. Bridges, that the deed could not be enforced. Again in 
 Ciay v. Bay (&) two promissory notes were secretly given by au. 
 compounding debtor to a creditor for a sum in excess of the amount- 
 of the composition. Judgment was obtained in an action on on& 
 of these notes. In consideration of proceedings being stayed and 
 the notes given up a third person gave a guaranty to the creditor 
 for the amount : it was held that on this guaranty no action could 
 be maintained. 
 
 This is a convenient place to state a rule of a more special 
 kind which has already been assumed in the discussion of various- 
 instances of illegality, and the necessity of which is obvious: 
 namely : — 
 
 (a) 1 Sra. L. C. 400 [7th Am. ed. 683-4]. 
 
 (J) Graeme v. Wroughton, 11 Ex. 146; 24 L. J. Ex. 265; Geere v. Mare, 2 
 
 H. & C. 339 ; 3a L. J. Ex. 50 ; Clay v. Bay, 17 C. B. N. S. 188 ; [Edwards v. Skir- 
 
 ving, 1 Brev. 548; Coulter v. Robinson, 14 S. & M. 18; Dewitt v. Brisbane, 1ft 
 
 U. Y. 508; but see Swan v. Scott, 11 S. & R. 155 ; Bly v. Bank, 79 Pa. St. 453.] 
 
 24 369 
 
325 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 5a. If the condition of a bond is unlawful, the whole bond is 
 void (a). 
 
 Rules of Evidence and Procedure touching Unlawful Agreements. 
 
 6. Extrinsic evidence is always admissible to show that the ob- 
 ject or consideration of an agreement is in fact illegal. 
 
 This is now an elementary rule both at law (b) and in equity (c). 
 Even a document which for want of a stamp would not be availa- 
 ble to establish any right is admissible to prove the illegal nature 
 ■of the transaction to which it belongs (d). 
 
 325] *But where the immediate object of the agreement (in the 
 «ense explained above) is not unlawful, we have to bear in mind 
 ■& qualifying rule which has been thus stated: 
 
 6a. " When it is sought to avoid an agreement not being in itself un- 
 lawful on the ground of its being meant as part of an unlawful scheme 
 ■or to carry out an unlawful object, it must be shown that such was the 
 intention of the parties at the time of making the agreement" (e). 
 
 The fact that unlawful means are used in performing an agree- 
 ment which is prima facie lawful and capable of being lawfully 
 performed does not of itself make the agreement unlawful (/). 
 This or other subsequent conduct of the parties in the matter of 
 the agreement may be evidence, but evidence only, that a violation 
 of the law was part of their original intention, and whether it was 
 so is a pure question of fact (g). The omission of statutory re- 
 quisites in carrying on a partnership business is consistent with the 
 ■contract of partnership itself being lawful; but if it is shown as 
 a fact that there was from the first a secret agreement to carry on 
 the business in an illegal manner, the whole must be taken as one 
 
 (a) Co. Litt. 2066; Shepp. Touch. 372; where it is said that if the matter of 
 the condition be only -malum prohibitum, the obligation is absolute (as if the con- 
 ■dition were merely impossible) ; but this distinction is now clearly not law : see 
 Duvergier v. Fellows, 10 B. & C. 826. 
 
 (b) Collins v. Blantern, 1 Sm. L. C. 369 [7th Am. ed. 667]. 
 
 (c) Reynell v. Sprye, 1 D. M. G. 660, 672, per Knight Bruce, L. J. 
 
 (d) Coppock v. Bower, 4 M. & W. 361. 
 
 (e) Lord Howden v. Simpson, 10 A. & E. 793, 818; [Sawyer v. Taggart, 14 
 Bush, 727, 734.] 
 
 (/) A subsequent agreement to vary the performance of a contract in a 
 way that would make it unlawful is merely inoperative, and leaves the original 
 contract in force; City of Memphis v. Brown, 20 Wall. 289. 
 
 (g) Fraser v. Hill, 1 McQu. 392 ; [Clarke v. Fobs, 7 Biss. 540.] 
 370 
 
UNLAWFUL PURPOSE. EVIDENCE. 326 
 
 Illegal transaction (a). Again, it is no answer to a claim for an 
 account of partnership profits that there was some collateral breach 
 -of the law in the particular transaction in which they were 
 earned (b). Where a duly enrolled deed inter vivos purported to 
 •create a rent-charge for charitable purposes, but the deed remained 
 in the grantor's keeping, no payment was made during his life- 
 time, nor was the existence of the deed communicated to the per- 
 sons interested, and the conduct of the parties otherwise showed 
 an understanding that the deed should not take effect till after flue 
 grantor's death, it was set aside as an evasion of the Mortmain 
 Act (c). * Again, an agreement is not unlawful merely be- [326 
 ■cause something remains to be done by one of the parties in order 
 to make the performance of the agreement or of some part of it 
 lawful, such as obtaining a license from the Crown (<J). 
 
 In the recent case of Waugh v. Morris (e) it was agreed by char- 
 ter-party that a ship then at Trouville should go thence with a 
 ■cargo of hay to London, and all cargo was to be brought and taken 
 from the ship alongside. Before the date of the charter-party an 
 Order in Council had been made and published under the Con- 
 tagious Diseases (Animals) Act 1869, prohibiting the landing of 
 hay from France in this country. The parties did not know of this, 
 and the master learnt it for the first time on arriving in the Thames. 
 In the result the charterer took the cargo from alongside the ship 
 in the river into another vessel and exported it, as he lawfully 
 might, but after considerable delay. The shipowner sued him for 
 ■demurrage, and he contended that the contract was illegal (though 
 it had in fact been lawfully performed), as the parties had intended 
 it to be performed by means which at the time of the contract 
 were unlawful, viz. landing the hay in the port of London. The 
 ■Court however refused to take this view. It was true that the 
 plaintiff contemplated and expected that the hay would be landed, 
 as that would be the natural course of things. But the landing 
 
 (a) Armstrong v. Armstrong, 3M.&K. 45, 64 ; s. c. nom. Armstrong v. Lewis, 
 in Bxch. 2 Cr. & M. 274, 297. Notwithstanding what is here said as to such in- 
 ferences of fact being for the jury, the matter seems to have been left at large 
 for the court in Waugh v. Morris, L. K. 8 Q. B. 202 (see next paragraph). 
 
 (6) Sharp v. Taylor, 2 Ph. 801; [see infra, p. 329, note (6).] 
 
 (e) Way v. East, 2 Drew. 44. 
 
 (d) Sewell v. Royal Bxch. Assurance Co., 4 Taunt. 856; Haines v. Busk, 5 lb. 
 821 ; cp. Porter's ca., 1 Go. Rep. 25a, the like as to a condition in a devise. 
 
 (e) L. B. 8 Q. B. 202. 
 
 371 
 
327 CHAP. VI. UNLAWFUL . AGREEMENTS. 
 
 was no part of. the contract, and if the plaintiff had had before* 
 him the possibility of the landing being forbidden, he would prob- 
 ably have expected the defendant not to break the law ; as in faet^ 
 he did not, for no attempt was made to land the goods. 
 
 " We quite agree that where a contract is to do a thing which can not- 
 be performed without a violation of the law it is void, whether the parties 
 knew the law or not. But we think that in order to avoid a Contract 
 which can be legally performed on the ground that there was an inten- 
 tion to perform it in an illegal manner, it is necessary to show that there- 
 was the wicked intention to break the law; and if this be so, the knowl- 
 edge of what the law is becomes of great importance " (a). 
 327] *A still more recent case in the Queen's Bench may also- 
 be referred to as illustrating the general rule that an unlawful in- 
 tention is not to be presumed. It is not illegal for a highway 
 board to give a license to a gas company to open a highway within 
 the board's jurisdiction, for it must be taken to mean that they are 
 to do it so as not to create a nuisance (b). 
 
 But on the other hand where an agreement is prima facie illegal, 
 it lies on the party seeking to enforce it to show that the intention 
 was not illegal. It is not enough to show a mere possibility of the 
 agreement being lawfully performed in particular contingent 
 events. "If there be on the face of the agreement an illegal in- 
 tention, the burden lies on the party who' uses expressions prima 
 facie importing an illegal purpose to show that the intention was- 
 legal " (c). 
 
 We now come to the rule, which we will first state provisionally 
 in a general form, that money or property paid or delivered under- 
 an unlawful agreement can not be recovered back (d). 
 
 This rule (which is subject to exceptions to be presently stated) 
 is the chief part, though not quite the whole, of what is meant by 
 the maxim In pari delicto potior est conditio defendentis (e). To- 
 
 (a) L. B. 8 Q. B. 207-8; [Favor v. Philbriek, 7 N. H. 326.] 
 
 (b) Edgware Highway Board v. Harrow Gas Co., L. R. 10 Q. B. 92. 
 
 (c) Holland v. Hall, 1 B. & Aid. 53, per Abbott, J.; Allkins v. Jupe, 2 C. P. 
 1). 375. The same principle is expressed in a different form by Paulus : " Item? 
 quod leges fieri prohibent, si perpetuam causam servaturum est, oessat obliga-- 
 tio . . . quamquam etiam si non sit perpetua causa . . . idem dicen- 
 dum est, quia statim contra mores sit." D. 45. 1. de v. o. 35, § 1. 
 
 (d) [Hooker v. De Palos, 28 O. S. 251 ; Perkins «. Savage, 15 "Wond. 412 ; Mil- 
 ler v. Larson, 19 Wis. 463 ; King v. Green, 6 Allen, 139; Dunkin v. Hodge, 46» 
 Ala. 523.] 
 
 (e) Cp. D. 50. 17. de reg. iuris, 154, C. 4. 7. de condict. ob turpem causam, 2. 
 
 372 
 
WHEN PAYMENTS CAN BE RECOVERED. 328 
 
 ssome extent it coincides with the more general rule that money 
 voluntarily paid with full knowledge of all material facts can not 
 be recovered back. However the principle proper to this cities of 
 
 oases is that persons who have entered into dealings forbidden by 
 the law must not expect any assistance from the law, save so far 
 as the simple refusal to enforce sucb an agreement is unavoidably 
 beneficial to the party sued upon it. As it is sometimes expressed, 
 the Courtis neutral between the parties. The matter is thus put 
 by Lord Mansfield : 
 
 "The objection, that a contract is immoral or illegal as between plaintiff 
 and defendant, sounds at all times very ill in the mouth of the defend- 
 ant. It is not for his sake, however, that the objection is *ever [328 
 allowed, but it is founded in general principles of policy, which the de- 
 fendant has the advantage of contrary to the real justice as between him 
 and the plaintiff, by accident, if I may say so. The principle of public 
 policy is this : ex dolo malo non oritur actio. No Court will lend its aid to a 
 reian who founds his cause of action upon an immoral or an illegal act. 
 If from the plaintiff's own stating or otherwise the cause of action ap- 
 pears to arise ex turpi causa, or the transgression of a positive law of this 
 
 •country, there the Court says he has no right to be assisted. It is upon 
 that ground the Court goes; not for the sake of the defendant, but be- 
 cause they will not lend their aid to such a plaintiff. So if the plaintiff 
 and defendant were to change sides, and the defendant was to bring his 
 
 .action against the plaintiff, the latter would then have the advantage of 
 it; for where both are equally in fault, potior est conditio defendentis" (a). 
 
 The test for the application of the rule is whether the plaintiff 
 can make out his case otherwise than "through the medium and 
 by the aid of an illegal transaction to which he was himself a 
 party" (b). It is not confined to the case of actual money pay- 
 ments, though that is the most common. Where the plaintiff had 
 deposited the half of a bank note with the defendant by way of 
 pledge to secure the repayment of money due for wines and sup- 
 pers supplied by the defendant in a brothel and disorderly house 
 kept by the defendant for the purpose of being consumed there in 
 a debauch, and for money lent for similar purposes, it was held 
 that the plaintiff could not recover, as it was necessary to his case 
 to show the true character of the deposit. (This is apparent by 
 
 (a) Holman v. Johnson, Obwp. 341, 343. 
 
 (6) Taylor v. Chester, L. R. 4 Q. B. 309, 314. ["The application of the 
 amaxim,*ira pari delicto, etc., does not depend upon any technical rule as to which 
 partj is the first to urge it upon the court in the pleadings;" Sampson v. Shaw, 
 101 Mass. 145, 152; Hanauer v. Woodruff, 15 "Wall. 439, 443.] 
 
 373 
 
329 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 the course of the pleadings : the declaration was on a bailment 
 of the half-note to be re-delivered on request, and in detinue. 
 Pleas, in effect, that it was deposited by way of pledge to secure 
 money due. Replication, the immoral character of the debt as 
 above) (a). The Court inclined also to think, but did not decide, 
 that the plaintiff's case must fail on the more general ground that, 
 the delivery of the note was an executed contract by which a spe- 
 cial property passed, and that such property must remain (b). 
 
 The rule is not even confined to causes of action ex contractu. 
 329] *An action in tort can not be maintained when the cause of 
 action springs from an illegal transaction to which the plaintiff' 
 was a party, and that transaction is a necessary part of his case (c). 
 
 Independently of the special grounds of this rule, a completely 
 executed transfer of property, though originally made upon an un- 
 lawful consideration or in pursuance of an unlawful agreement, is- 
 afterwards valid and irrevocable, both at law and in equity (d). 
 
 The rule is not applicable in the following classes of cases, most 
 of which, however, can not properly be called exceptions. 
 
 An agent is not discharged from accounting to his principal by 
 reason of past unlawful acts or intentions of the principal collat- 
 eral to the matter of the agency. If A. pays money to B. for the 
 use of C, B. can not justify a refusal to pay over to C. by showing; 
 that it was paid under an unlawful agreement between A. and. 
 C. (e). Again, if A. and B. make bets at a horse-race on a joint 
 account and B. receives the winnings, A. can recover his share of 
 
 (a) L. K. 4 Q. B. at p. 312 ; [That " one who has voluntarily made a pledge 
 to secure the payment of an illegal demand against him is not afterward en- 
 titled to reclaim the same without payment of the demand " see also King v. 
 Green, 6 Allen, 139.] ; ;r 
 
 (6) Compare ex parte Caldecott, 4Ch. D. 150, p. 291 above; Begbie u. Phos- 
 phate Sewage Co., L. K. 10 Q. B. 491, 500, affd. in 0. A. 1 Q. B. D. 679. 
 
 (c) Eivaz v. Nicholls, 2 C. B. 501, 513. 
 
 (d) Ayerst v. Jenkins, 16 Eq. 275. Cp. McCallan v. Mortimer (Ex. Ch.) 9- 
 M. & W. 636 ; [supra, pp. 320, 269.] 
 
 (e) Tenant v. Elliott, 1 B. & P. 3; [Barker v. Parker, 23 Ark. 390; Kinsman- 
 ■u. Parkhurst, 1 8 How. 289, 293 ; Caldwell v. Harding, 1 Lowell, 326 ; Lemon v^ 
 Grosskopf, 22 Wis. 447; Merritt v. Millard, 4 Keyes, 208; Woodworth v. Ben- 
 nett, 43 N. T. 273. 
 
 An agent can not retain against his principal the proceeds, of goods sold in- 
 an unlawful traffic; Gilliam v. Brown, 43 Miss. 641; Planters' Banks. Union- 
 Bank, 16 Wall. 483; Anderson''!). Moncrief, 3 Desauss. 124;, Lestapies v. Ingra- 
 374 
 
WHEN PAYMENTS CAN BE RECOVERED. 329* 
 
 the money or sue on a bill given to him by B. for it: here, how- 
 ever, there is nothing illegal in any part of the business (a,). In 
 like manner the right to an account of partnership profits is not 
 lost by the particular transaction in which they were earned hav- 
 ing involved a breach of the law (£>). .Nor can a trustee of prop- 
 erty refuse to account to his cestui que trust on grounds of this 
 kind : a trust was enforced where the persons interested were the 
 members of an unincorporated trading association, though it wii* 
 doubtful whether the association itself was not illegal (c). So, 
 if A., with JB.'s consent, effects a policy for his own benefit on the- 
 life and in the name of B., having himself no insurable interest, 
 the policy and the value of it belong, as between them, to A. (d)„ 
 
 ham, 5 Pa. St. 71. -But see Lemon v. Grosskopf, 22 "Wis. 447 ; Buck v. Albee, 
 26 Vt. 184 ; Kirk v. Morrow, 6 Heisk. 445. 
 
 Where the defendant was employed by the plaintiffs to draw an illegal lot- 
 tery, and fraudulently induced the plaintiffs to believe that a certain ticket had 
 drawn a, prize, and to pay the amount of such prize to one who held the ticket 
 and received the money for the defendant, it was held that the illegality of the 
 lottery was not a defense to an action for money had and received; Catts v. 
 Pbalen, 2 How. 376; and see Phalen v. Clark, 19 Conn. 421.] 
 
 (o) Johnson v. Lansley, 12 C. 3. 468. And where B. uses moneys of his 
 own and A.'s in betting, on the terms of dividHg winnings in certain propor- 
 tions, A. can sue B. on a cheque given for his share of winnings : Beeston v. 
 Beeston, 1 Ex. D. 13. Cp. and dist. Higginson v. Simpson, 2 C. P. D. 76, where 
 the transaction in question was held to be in substance a mere wager; [Owen v.- 
 Davis, 1 Bailey, 315.] 
 
 tb) Sharp v. Taylor, 2 Ph. 801. Of course it is not so where the main object 
 of the partnership is unlawful. See Lindley, 1. 203-212. [In Brooks v. Martin, 
 2 "Wall. 70, it was held that after the objects of a partnership, formed for the- 
 purpose of engaging in a traffic confessedly illegal, have been fully accom- 
 plished, a partner in whose hands the profits are can not refuse to account for 
 and divide them. The court relied mainly on the authority of Sharp v. Taylor, 
 flaying : " It will be at once perceived that the principle is. the same in both 
 cases, and that the analogy in the facts is so close that any rule on the subject 
 •which should govern the one ought also to control the other.!' It is submitted 
 that this case is unpleasantly analogous to Everet i>. "Williams, supra,, p. 244; 
 gee the observations of Jessel, M. K., upon Sharp v. Taylor, in Sykes v. Beadon, 
 11 Ch. D. 170, 195 ; and Todd v. Eafferty's Adm'rs., 30 N. J. Eq. 254 ; Craft v. 
 McConoughy, 79 III. 346; King o. Winants, 71 N..C. 469; "Watson v. Fletcher, 
 7 Gratt. 1 ; "Watson v. Murray, 23 N. J. Eq. 257; Snell v. Dwight, 120 Mass. 9. 
 Cp. Woodworth v. Bennett, 43 N. Y. 273.] 
 
 (c) Sheppard v. Oxenford, 1I.&J. 491. 
 
 (d) Worthington v. Curtis, 1 Ch. D. 419. 
 
 375 
 
330 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 330] If a man entrusts another *as his. agent with money to be 
 •paid for an unlawful purpose, he may recover it at any time before 
 it is actually so paid.: or even if the agent does pay it after having 
 been warned not to do so (fl) ; the reason of this, clearly put in 
 one of the earlier cases (&.), is that Whether the intended payment 
 "be lawful or not, an authority may always be countermanded as 
 between the princij>al and agent so long as it is not executed (c). 
 It is the same where the agent is authorized to apply in an unlaw- 
 ful manner any part of the moneys to be received by him on ac- 
 count of the principal; he must account for so much of that part 
 as he has not actually paid, over (c). The language of the statute 
 8 & 9 Vict. c. 109, s. 18, which says that no money can be recov- 
 ered " which shall have been deposited in the hands of any person 
 to abide the event upon which any wager shall have been made," 
 does not prevent either party from repudiating the wager at any 
 time either before or after the event and before the money is ac- 
 tually paid over and recovering his own deposit from the stake- 
 holder (d). 
 
 Where money has been paid under an unlawful agreement, but 
 nothing else done in performance of it, the money may be recov- 
 ered back. But in the decision which establishes this exception it 
 is intimated that it probably would not be allowed if the agree- 
 ment were actually criminal or immoral (e). '' If money is paid or 
 goods delivered for an illegal purpose, the person who has so paid 
 the money or delivered the goods may recover them back before 
 the illegal purpose is carried out .(/) ; but if he waits till the ille- 
 
 (a) Hastelow v. Jackson, 8B.&C. 221, 226. 
 
 (b) Taylor v. Lendey, 9 East, 49. 
 
 (c) Bone v. Ekless, 5 H. & N. 925 ; 29 L. J. Ex.438 ; [Kiewert v. Kindskopf, 
 46 "Wis. 481; Sampson v. Shaw, 101 Mass. 145.] 
 
 {d) Digglea. Higgs (C. A-.), 2 Ex. D. 422; Hampden v. Walsh, 1 Q. B. D. 
 189, where former authorities are collected and considered ; [Trimble v. Hill, 
 5 App. Ca. 342. That a party repudiating a wager after the event, and before 
 the money is paid over, may recover his deposit from the stakeholder, see Mc- 
 Allister v. Hoffman, 16 S. & K. 147; Wheeler v. Spencer, 15 Conn. 28; Tarle- 
 ton v. Baker, 18 Vt. 9; Perkins v. Eaton, 3 N. H. 152; Frybarge'r v. Simpson, 
 11 Ind. 59; Stacey v. Poss, 19 Me. 335; Wood v. Wood, 8 Murpb. 172; Wil- 
 Itinson v. Tousley, 16 Minn. 299; contraj Yates v. Eoot, 12 Johns. 1; Johnson 
 v. llussell, 37 Cal. 670.] 
 
 (e) Tappenden v. Randall, 2 B. & P. 467. 
 
 (/) [ICnowlton v. C. & E. Springs. Co., 14 Blatchf. 364 (S. C. contra, 57. N. 
 Y. 518) ; Skinner v. Henderson, 10 Mo. 205; White v. Bank, 22 Pick. 181.] 
 376 
 
WHEN PAYMENTS CAN BE RECOVERED. 331 
 
 gal purpose is carried out, or if he seeks to enforce -the illegal 
 transaction, in neither case can he maintain an action " (a"). And 
 the action can not be maintained by a party who has not given 
 previous notice that he repudiates the agreement and claims his 
 money back (b). In Taylor v. Bowers (a) A. had delivered goods 
 to B. under a fictitious assignment for the purpose of defrauding 
 A.'s creditors. B. executed a bill of sale of the goods to 0., who 
 was privy to *the scheme, without A.'s assent. It was [331 
 held that A. might repudiate the whole transaction and demand 
 the return of the goods from C. In Symes v. Hughes (c), a case 
 somewhat of the same kind, the plaintiff had assigned certain 
 leasehold property to a trustee with the intention of defeating his 
 -creditors ; afterwards under an arrangement with his creditors he 
 sued for the recovery of the property, having undertaken to pay 
 them a composition in case of success. The Court held that, as 
 the illegal purpose had not been executed, he was entitled to a re- 
 conveyance. It will be observed, however, that the plaintiff was 
 in effect suing as a trustee for his creditors, so that the real ques- 
 tion was whether the fraud upon the creditors should be continued 
 against the better mind of the debtor himself. The cases above 
 mentioned as to recovering money from agents or stakeholders are 
 also put partly on this ground, which, however, does not seem nec- 
 essary to them (d). 
 
 In certain cases the parties are said not to be in pari delicto, 
 namely where the unlawful agreement and the payment take place 
 under circumstances practically amounting to coercion (e). The 
 
 (a) Per Mellish, L. J., Taylor v. Bowers, 1 Q. B. D. 291, 300. 
 (6) Palyart v. Leckie, 6 M. & 8. 290. 
 (c) 9 Eq. 475. 
 
 (a) Hastelow v. Jackson, 8 B. & C. 221. Mearing v. Hellings, 14 M. & W. 
 
 711, where that case was doubted, decides only this: A man can not sue a 
 
 : stakeholder for the whole of the sweepstakes he has won in a lottery, and then 
 
 reply to the objection of illegality that if the whole thing is illegal he must at 
 
 .all events recover his own stake. Allegans eontraria non est audiendus. 
 
 (e) [Or where the law, the violation of which constitutes the illegality in the 
 transaction, was intended for the coercion of one party only, or the protection 
 of the other; Thomas «. Richmond, 12 Wall. S49; White o. Bank, 22 Pick. 181; 
 Sohermerhorn v. Talman, 14 N. Y. 93. 123 ; Tracy v. Talmadge, 14 N. Y. 162, 
 181, 199 ; Oneida Bank v. Ontario Bank, 21 N. Y. 490; Scotten v. State, 51 Ind. 
 -52 ; Deming v. State, 23 Ind. 416. 
 
 "The cases in which the courts will give relief to one of the parties on the 
 
 377 
 
332 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 chief instances of this kind in courts of law have been payments- 
 made by a debtor by way of fraudulent preference to purchase a 
 particular creditor's assent to his discharge in bankruptcy or to a 
 composition. The leading case is now Atkinson v. Denby (a). 
 There the defendant, one of the plaintiff's creditors, refused to ;ic- 
 cept the composition unless he had something more, and the plaint- 
 iff paid him 501. before he executed the composition deed. It was- 
 held that this money could be recovered back. " It is true " said 
 the Court of Echequer Chamber '' that both are in delicto, because 
 the act is a fraud upon the other creditors, but it is not par delictum, . 
 because the one has the power to dictate, and the other no alterna- 
 tive but to submit." On the same ground money paid for com- 
 332] pounding a *penal action contrary to the statute of Eliza- 
 beth may be recovered back (6). But where a bill is given by way 
 of fraudulent preference to purchase a creditor's assent to a com- 
 position, and after the composition the debtor chooses to pay the 
 amount of the bill, this is a voluntary payment which can not be- 
 rccovered (c). 
 
 In equity the application of this doctrine has been the same in 
 substance, though more varied in its circumstances. Courts of 
 Equity do not as a rule order the return of money or set aside in- 
 struments when the parties are in pari delicto; but they will do so 
 in the cases thus described by Knight Bruce, L. JV: '' Where the 
 
 ground that he is not in pari delicto, from an independent class, entirely distinct 
 from those cases which rest upon a disaffirmance of the contract before it is ex- 
 ecuted. It is essential, to both classes, that the contract be merely malum pro- 
 hibitum.. If malum in se the courts will in no ease interfere to relieve- 
 either party from any of its consequences. But where the contract neither 
 involves moral turpitude nor violates any general principle of public policy, 
 and money or property has been advanced upon it, relief will be granted to the 
 party making the advance: 1. Where he is not in pari delicto; or, 2. In some 
 cases where he elects to disaffirm the contract while it remains executory. In 
 cases belonging to the first of these classes, it is of no importance whether the- 
 contract has been executed or not; and in those belonging to the second, it is 
 equally unimportant that the parties are in pari delicto." Per Selden, J., in 
 Tracy v. Talmadge, 14 N. Y. 162, 181.] 
 
 («) 6 H. & N. 778; 30 L. J. Ex. 361, in Ex. (Jh. 7 H. & N. 934; 31 L. J. Ex- 
 3G2: the chief earlier ones are Smith v. Bromley, 2 Doug. 695; Smith v. Cuff,. 
 6 M. & S. 160; [Crossley v. Moore, 40 N. J. L. 27; Bean v. Brooktnire, 2 Dill- 
 108; Bean v. Amsink, 10 Blatchf. 361 ; Leake, 2d ed. 778.] 
 
 (b) Williams v. Hedley, 8 East, 378 
 
 (c) Wilson v. Ray, 10 A. &'E. 82. 
 
 378 
 
WHEN PAYMENTS CAN BE RECOVERED. 383- 
 
 parties to a contract against public policy or illegal are not in pari 
 delicto (and they are not always so) and where public policy is con- 
 sidered as advanced by allowing either, or at least the most excusa- 
 ble of the two, to sue for relief against the transaction, relief is- 
 given to him, as we know from various authorities, of which Os- 
 borne v. Williams [see below] is one" («). 
 
 On this principle relief was given and an account decreed in Os- 
 borne v. Williams (6), where the unlawful sale of the profits of an 
 office was made by a son to his father after the son had obtained 
 the office in succession to his father and upon his recommendation, . 
 so that he was wholly under his father's control in the matter. In- 
 Eeynell v. Sprye (c) an agreement bad for champerty was set aside 
 at the suit of the party who had been induced to enter into it by 
 the other's false representations that it was a usual and proper- 
 course among men of business to advance costs and manage litiga- 
 tion on the terms of taking all the risk and sharing the property 
 recovered. And in a later case a mortgage to secure a loan of money 
 which in fact was lunt upon an immoral consideration was set aside 
 at the suit of the borrower on the ground that the interest of others 
 besides parties to the corrupt bargain was involved (d). A wider 
 exception is made, as we have seen above, in the case of agreements 
 of which the consideration is future illicit cohabitation between the 
 parties. The treatment of this kind of agreements is altogether 
 somewhat *anomalous and ill defined, and may be considered [333 
 open to review by a Court of Appeal should occasion arise. Apart 
 from this particular question, there seems to be no reason (at alt 
 events since the Judicature Acts) why the analogy of the cases in 
 equity where agreements have been set aside should not apply to 
 the legal right of recovering back money paid. If this be correct, 
 the rule and its qualifications will be to this effect : 
 
 7. Money paid or property delivered under an unlawful agree- 
 ment can not bo recovered back, nor the agreement set aside at 
 the suit of either party — 
 
 unless nothing has been done in the execution of the unlawful 
 
 (a) Eeynell v. Sprye, 1 I). M. G. 660, 679 ; [Pinkston v. Brown, 3 Jones Eq.- 
 494; Baehr v. Wolff, 59 111. 470; Ford v. Harrington, 16 N. Y. 285; Barnes v- 
 Brown, 32 Mich. 146; cp. Roman v. Mali, 42 Md. 513.] 
 
 (b) 18 Yes. 379. (c) 1 D. M. G. 660, 679. 
 (a) W. u. B., 32 Beav. 574. 
 
 379 
 
"334 CHAP. VI, UNLAWFUL AGREEMENTS. 
 
 purpose beyond, the payment or delivery, itself (and, the agreement 
 is not positively. criminal or immoral?) ; 
 
 or unless the agreement was made under such circumstances as 
 between the parties that if otherwise lawful it would be voidable 
 in equity at the option of the party seeking l-elief (a) ; 
 
 or, in the case of an action to set aside the agreement, unless, in 
 the judgment of the Court the interests of third persons require 
 thiit it should be set aside. 
 
 8. Where a difference of local laws is in question, the lawfulness 
 of a contract is to be determined by the law governing the sub- 
 stance of the contract (that is, according to the prevailing opinion, 
 the law of the place where it is to be performed, if any particular 
 place of performance is expressed by the contract or implied in its 
 nature, or otherwise the law of the place where the contract is 
 made). 
 
 Exception 1. — An agreement entered into by a citizen in violation 
 of a prohibitory law of his own state can not in any case be en- 
 forced in any court of that state. 
 
 Exception 2. — An agreement contrary to common principles of 
 justice or morality, or to the interests of the state, can not in any 
 {.■ase be enforced. 
 
 What we here have to do with is in truth a fragment of a 
 334] *mueh larger Bubject, namely the consideration of the local 
 law governing obligations in general (b). 
 
 The main jiroposition is well established, and it would be idle to 
 attempt in this place any abridgment or re-statement of what is 
 said upon it by the writers on Private International Law to whose 
 works the reader is referred in the last note. The first exception 
 is a simple one. The municipal laws of a particular state, especially 
 laws of a prohibitory kind, are, as a rule, directed only to things 
 done within its jurisdiction. But a particular law may positively 
 forbid the subjects of the state to undertake some particular class 
 of transactions in any part of the world ; and where such a law 
 exists, the courts of that state must give effect to it. A foreigner 
 can not sue in an English court on a contract made with a British 
 
 (a) This form of expression is not positively warranted by the authorities, 
 but if. submitted as fairly representing the result. . 
 
 (b) For the treatment of it in this, connection, see Savigny, Syst. 8. 269-278 
 (jj 374 C); "Westlake on Private Intern. Law, 176,180; Story, Conflict of Laws, 
 
 -J? 243, sqq. ; 258, sqq. ; Wharton, \\ 482-497. 
 '380 
 
r O\'^^'-' r 
 
 CONFLICT OF LAWS AS TO VALIDITY OV AGREEMENT. 33&- 
 
 Bubject, and itself lawful at the place where it was made, if it is 
 such that British subjects are forbidden by Act of Parliament to 
 make it anywhere (a). It may be doubted whether such a contract 
 would be recognized even by the courts of the state where it was 
 made, unless the prohibition were of so 1 hostile or restrictive a 
 character as between the two states {e.g. if the rulers of a people 
 skilled in a particular industry should forbid them to exercise or 
 teach that industry abroad) as not to fall within the ordinary prin- 
 ciples of comity. - The authorities already cited (p. 257 above) as 
 to marriages within the prohibited degrees contracted abroad by 
 British subjects may also be usefully consulted as illustrating this- 
 topic. 
 
 The second exception is by no means free from difficulties touch- - 
 ing its real meaning and extent (&). There is no doubt that an 
 agreement will not necessarily, though it will generally, be enforced 
 if lawful according to its proper local law. The reasons for which 
 the court may nevertheless refuse to enforce it have been variously 
 expressed. We read that agreements *must be held void [335 
 apart from any question of local law if they are " in their own na- 
 ture founded in moral turpitude and are inconsistent with the good 
 order and solid interests of society" (c) ; or if they are " contrary 
 to the law of nature or hurtful to the purity of morals ;" that "no 
 state can be justified in directing its tribunals to enforce obligations 
 which it holds td be founded in wrong " (d). Sometimes it is said 
 
 (a) Santos v. Illidge, in Ex. Oh. 8 C. B. N. S. at p. 874 ; 29 L. J. C. P. at 
 p. 350, per Blackburn, J. 
 
 (&) " Whether an action can be supported in England on a contract which is- ■ 
 void by the law of England, but valid by the law of the country where the 
 matter is transacted, is a great question :'' per Wilmot, J., Robinson v. Bland, 2 
 Burr. 1083. 
 
 (c) Story, § 258. 
 
 (d) Westlake, 180. [In "Watson v. Murray, 23 N. J. Eq. 257, a bill by a 
 partner in a lottery firm against his copartners for an account was dismissed. 
 Lotteries in New Jersey are declared common and public nuisances ; the sale 
 of a ticket in a lottery, whether erected or opened in New Jersey or any other 
 state, is a misdemeanor. The court said : " Putting the case in its best possible- 
 shape, and assuming that all the contracts and transactions involved in it oc- 
 curred in states where they were tolerated by law, my opinion is that this court 
 -will not undertake to enforce or administer them. But see Thatcher v. Morris, 
 UN. Y. 437; Commonwealth v. Bassford, 6 Hill, 526; Mclntyre v. Parks, 3- 
 Met. 207. 
 
 "A contract valid elsewhere will not be enforced if it is condemned by posi--- 
 
 381 
 
335 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 in still more general terms that an agreement must be lawful by 
 the law of the country where it is sued upon : but this form of 
 • statement at any rate may be dismissed as too wide. 
 
 It may be taken for granted that the courts of a civilized state 
 can not give effect to rights alleged to be valid by some local law, 
 but arising from a transaction plainly repugnant to the jus gentium, 
 in its proper sense — the principles of law and morality common to 
 civilized nations. In other words, a local law can not be recog- 
 nized, though otherwise it would be the proper law to look to, if it 
 is in derogation of all civilized laws. This indeed seems a funda- 
 mental assumption in the administration of justice, in whatever 
 forum and by whatever procedure, rather than a specific proposi- 
 tion of either municipal or international law. Likewise it is clear 
 that no court can be bound to enforce rights arising under a system 
 of law so different from its own, and so unlike anything it is accus- 
 tomed to, that not only its administrative means, but the legal con- 
 ceptions which are the foundation of its procedure, and its legal 
 habit of mind (a), so to speak, are wholly unfitted to deal with 
 them (b). For this reason the English Divorce Court can not en- 
 tertain a suit founded on a Mormon marriage (c). Apart from the 
 
 tive law, or is inconsistent with the public policy of the country, the aid of 
 whose tribunals is invoked for the purpose of giving it effect;" Union L. & B. 
 Co. v. Railway Co., 37 N. J. L. 23, 25. 
 
 A contract " will not be enforced if it involves any thing immoral, contrary 
 to general policy or violative of the conscience of the state called on to give it 
 •effect;" Eubanks v. Banks, 34 Ga. 407. 
 
 "No people are bound or ought to enforce, or hold valid in their courts of 
 justice, any contract which is injurious to their public rights, or offends their 
 morals, or contravenes their policy, or violates a public law;" 2 Kent, 468. 
 And see Greenwood v. Curtis, 6 Mass. 358, 378; Smith v. Godfrey, 8 Fost. 379; 
 Ivey ■». Lalland, 42 Miss. 444; Commonwealths. Bassford, 6 Hill, 526; Kanaga 
 v. Taylor, 7 0. S. 134, 142; Kousillon v. Kousillon, 14 Ch. D. 351, 369.] 
 
 (a) In German one might speak without any strangeness of the Bechtsbewussi- 
 . sein of the Court. 
 
 (b) [In Hughes v. KHngender, 14 La. Ann. 845, it was held that a contract 
 -executed in England by which a ship was transferred to a trustee to secure the 
 
 rights of a third person, the vendor retaining possession of the ship, could not 
 be enforced in Louisiana to defeat the rights acquired by an attachment under 
 the laws of that state, having no analogy to any mode known to its law of af- 
 fecting personal property for the security of debts. "The comity of nations 
 extends only to enforce obligations, contracts, and rights under those provisions 
 of the law of other countries which are analogous or similar to those of the 
 .state where the litigation arises."] 
 
 (e) [As to polygamous or incestuous marriages, see Commonwealth v. Lane, 
 382 
 
CONFLICT OF LAWS: SLAVERY. 3CG 
 
 -question whether such marriages would be regarded by our courts 
 
 -as immoral jure gentium {a), the matrimonial law of England is 
 wholty inapplicable to polygamy, and the attempt to apply it would 
 lead to manifest absurdities (b). Practically these difficulties 
 
 '♦can hardly arise except as to rights derived from family [336 
 relations. One can hardly imagine them in the proper region of 
 
 •contracts. 
 
 Again, there are sundry judicial observations to be found which 
 go to the further extent of saying that no court will enforce any 
 thing contrary to the particular views of justice, morality or policy 
 whereon its own municipal jurisprudence is founded. And this 
 
 -doctrine is supported by the unhesitating acceptance of text-writers, 
 which in this department of law must needs count for more tluui, 
 in any other, owing to its comparative poverty in decisive authoiv 
 ities (c). But a test question on this doctrine is to be found in the 
 treatment of rights arising out of slavery by the courts of a free 
 country : and for England at least the decision of the Exchequer 
 
 , Chamber in Santos v. lllidge (rf) has given such an answer to it us 
 makes the prevailing opinion of the books untenable. Slavery is 
 as repugnant to the principles of English law as anything can well 
 
 113 Mass. 458, 463; Sutton v. Warren, 10 Met. 451 ; True v. Eanney, 1 Fost. 
 52, 55; Stevenson v. Gray, 17 B. Mon. 193, 208.] 
 
 (a) A conclusion which would not imply any offense to the Queen's Mahom- 
 etan subjects, or be inconsistent with our administration of native law in Brit- 
 ish India. The immemorial institutions of Eastern races are obviously on a 
 different footing altogether from the fantastic and retrograde devices of a de- 
 generate fraction in the "West. 
 
 (b) Hyde v. Hyde & "Woodmansee, L. E. 1 P. & D. 130. 
 
 (c) See the books above referred to, p. 334, note (J), and Chitty on Contracts, 
 ■Ch. 4, init. [In Hill v. Spear, 50 N. H. 253, which turned upon the right to 
 recover the price of liquors sold in New York, where the sale of liquors is law- 
 ful, but with knowledge on the part of the seller that they were bought for the 
 ■purpose of an unlawful resale in New Hampshire, the court say, at p. 271: 
 "This court will and ought to be reluctant to enforce contracts manifestly 
 .against public policy ; but when the public policy of the country is net uni- 
 form, but different in neighboring localities, and variable in all, it would seem 
 to be assuming rather too much to hold and insist that our notions of public 
 policy are and must be infallible to the exclusion of the opinions and views of 
 other enlightened communities, and the subversion of commercial comity."] 
 
 (rf) 8 0. B. N. S. 861 ; 29 L. J. C. P. 348, revg. s. c. in court below; 6 C. B. 
 N. S. 841 ; 28 L. J. C. P. 3] 7. Very strangely there is no mention of the case 
 •either in "Wharton's Conflict of Laws or in the last edition of Story. 
 
 383 
 
337 CHAP. VI; UNLAWFUL AGREEMENTS. 
 
 be which is so far admitted byany other civilized -system, that any- 
 serious question of the conflict of laws can, arise upon it. There js- 
 no doubt that neither the status, of slavery nor any personal right 
 of the master or duty of the slaye incident thereto can exist in 
 England («), or within the protection of English law (6). But it 
 long remained uncertain how an English court would deal with a 
 contract concerning slaves which was lawful in the country where 
 it was made and to be performed. Passing over earlier and inde- 
 cisive authorities (c), we find Lord Mansfield, assuming that a con- 
 tract for the sale of a slave may be good here (d). On the other 
 hand, Best, J., thought no action "founded upon a right arising- 
 out of slavery " would be maintainable in the municipal courts of 
 337] this country (e). But in Santos v. *Illidge (/) a Brazilian 
 sued an English firm trading in Brazil for the non-delivery of 
 slaves under a contract for the sale of them in that country, which- 
 wr.s valid by Brazilan law. Both in the C. P. and in the Ex. Oh. 
 the. only question discussed was whether the sale was or was not un- 
 der the circumstances made illegal by the operation of the statutes- 
 against slave trading : and in the result the Ex. Ch. held that it was- 
 not. It was not even contended that at common law the Court must 
 regard a contract for the sale of slaves as so repugnant to English 
 principles of justice that, wherever made, it could not be enforced 
 in England (g). Nor can it be suggested that the point was over- 
 looked, for it appears to have been marked for argument : perhaps- 
 it is a matter for regret that it was not insisted upon, arid an ex- 
 press decision obtained upon it: but as it is, it now seems impossi- 
 ble to say that purely municipal views of right and wrong can pre- 
 vail against the recognition of a foreign law. Moreover, apart trom 
 this decision, the cases in which the dicta relied upon for the wider- 
 
 (a) Sommersett's ca., 20 St. T. 1. 
 
 lb) Viz. on board an English ship of war on the high seas or in hostile occu- 
 pation of .territorial waters, Forbes v. Cochrane, 2 B. & 0. 448. 
 
 Ic) They are collected in Hargrave's argument in Sommersett's case. 
 
 (d) 20 St. T. 79. 
 
 (e) Forbes v. Cochrane, 2 B. & 0. at p. 468. To same effect, Story* \ 259 (in 
 spite of American authorities being adverse), approved by Westlakej 183. [See- 
 dissenting opinion of Sedgwick, J., in Greenwood v. Curtis, 6 Mass. 358.] 
 
 (f) See note (i), page 336. 
 
 (g) [That an action will lie in a state where slavery never existed, on a note 
 given on the sale of a slave in a state where such sale was lawful, see Roundtree- 
 v. Baker, 52 III. 241; Commonwealth v. Aves, 18 Pick. 193, 215, per Shaw, C.J.;. 
 Osborn v. Sticholson, 13 Wall. 654, 656, per Swayne, J.] 
 
 384 
 
CONFLICT OF LAWS. 338- 
 
 doctrine have occurred have in fact been almost always determined' 
 on considerations of local law, and in particular of the law of the 
 place where the contract was to be performed. 
 
 Thus in Eobinson v. Bland (a) the plaintiff sued (1) upon a bill 
 of exchange drawn upon England to secure money won at play in 
 France: (2) for money won at play in France: (3) for money lent- 
 for play at the same time and place. As to the bill, it was held to 
 be an English bill; for the contract was to be performed by pay- 
 ment in England, and therefore to be governed by English law. For 
 the money won, it could not have been recovered in a French Court 
 of justice (6), and so quacunque via could not be sued for here; but 
 as to the money lent, the loan was lawful in France and therefore 
 recoverable»here (c). Wilmot, J., said that an action could be main- 
 tained in some countries by a courtesan for the price of her prosti- 
 tution, but certainly would not be allowed in England, though the 
 cause of action arose in one of those countries (d). Probably no- 
 such local law now exists. But if it did, and if it were attempted 
 to ^enforce it in our courts, we could appeal, not to our own [338- 
 municipal notions of morality, but to the Eoman law as expressing 
 the common and continuous understanding of civilized nations. 
 Such a bargain is immoral jure gentium. 
 
 In Quarrier v. Colston (e) it was held that money lent by one 
 English subject to another for gaming in a foreign country where 
 such gaming was not unlawful might be recovered in England. 
 This, as well as the foregoing case, is not inconsistent with the rule 
 that the law of the place of performance is to be followed. It must 
 be taken, no doubt, that the parties contemplated payment in Eng- 
 land. Then, what says the law of England ? Money lent for an 
 unlawful use can not be recovered. Then, was this money lent for 
 an unlawful use? That must be determined by the law existing at 
 the time and place at which the money was to be used in play- 
 That law not being shown to prohibit such a use of it, there was 
 no unlawful purpose in the loan, and there was a good cause of ac-, 
 
 (a) 2 Burr. 1077. 
 
 (J) Nor, under the circumstances, in the marshal's court of honor which then 
 existed; but it seems the court would in any case have declined to take notice of 
 an extraordinary and extra-legal jurisdiction of that sort. 
 
 (c) [Scott v. Duffy, 14 Pa. St. 18.] 
 
 {d) [Ace. per' Parsons, 0. J., in Greenwood v. Curtis, 6 Mass. 358, 379; per 
 Chase, C. J.,,itt De Sobry v. De Laistre, 2 H. & J. 191, 228.] 
 
 (e) 1 Ph. 147. 
 
 25 385 
 
339 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 tion, not merely by the local law (which in fact was not before the 
 Court) (rr), but by the law of England. These cases do show, 
 however, that the English lawagainst gaming is not considered to be 
 founded on such high and general principles of morality that it is 
 to override all foreign laws, or that an English court is to presume 
 g. nning to be unlawful by a foreign law (6). 
 
 In Hope v. Hope (c) an agreement made between a husband and 
 wife, British subjects domiciled in Prance, provided for two things 
 which made the agreement void in an English court : the collusive 
 conduct of a divorce suit in England, and the abandonment by the 
 husband of the custody of his children. It is worth noting that, at 
 the time of the suit the husband was resident in England, and it 
 does not seem clear that he had not recovered an English domicil. 
 339] Knight Bruce, L. J., put his judgment *partly on the ground 
 that an important part of at least of the provisions of the docu- 
 ment was to be carried into effect in England. Turner, L. J., 
 did say in general terms that a contract must be consistent with 
 the laws and policy of the country where it is sought to be en- 
 forced, and he appears to have thought the provision as to the cus- 
 tody of the children was one that an English court must absolutely 
 refuse to enforce, whether to be performed in England or not, and 
 whether by a domiciled British subject or not. But this is neither 
 required by the decision nor reconcileable with Santos v, Illidge. 
 
 In G-rell v. Levy (rf) an agreement was made in Prance between 
 an English attorney and a French subject that the attorney should 
 recover a debt for the client in England and keep half of it. Our 
 rules against champerty are not known to the French law: but 
 here the agreement was to be performed in England by an officer 
 of an English court (e). Perhaps, indeed, the English law go v- 
 
 (o) The local law might conceivably, without making gaming unlawful, re- 
 duce debts for money lent at play to the rank of natural obligations ur debts of 
 honor not enforceable by legal process: if the view in the text be correct, the 
 existence of such a law would make no difference in the English court. 
 
 (6) Contra, Savigny, who thinks laws relating to usury and gaming must be 
 Teckoned strictly compulsory (von streng positiver, zwingender Natur) — i.e, must 
 T>e applied without regard to local law by every court within their allegiance, 
 "but are not to be regarded by any court outside of it. Syst. 8. 276. 
 
 (c) 8 D. M. G. 731 ; per Knight Bruce, L. J. at p. 740; per Turner L. J. at 
 p. 743. 
 
 (rf) 1G C. B. N. S. 73. 
 
 (e) Per Erie, C. J., at p. 79; [Berrien v. McLane, 1 Hoff. Oh. 421, 427; Girt- 
 'dings v. Eastman, 1 Clarke, 19.] 
 386 
 
CONFLICT OF LAWS. 340 
 
 ■«rning the relations and mutual rights of solicitor and client may- 
 be regarded as a law of English procedure ; and in that character, 
 of course, private arrangements can not acquire any greater power 
 to vary it by being made abroad (a). 
 
 As for agreements contrary to the public interests of the state 
 in whose courts they are sued upon, it is obvious that the courts 
 must refuse to enforce them without considering any foreign law. 
 The like rule applies to the class of agreements in aid of hostilities 
 against a friendly state of which we have already spoken (b). In 
 practice, however, an agreement of this kind is more likely than 
 not to be unlawful everywhere. Thus an agreement made in New 
 York to raise a loan for the insurgents in Cuba would not be law- 
 ful in England ; but it would also not be lawful in New York, and 
 for the same reason. It might possibly happen on the other hand 
 that the United States should recognize the Cuban insurge'nts 
 while they were not recognized by England; and in that case the 
 ■courts of New York would regard the contract as lawful, but ours 
 would not. 
 
 It should be borne in mind that the foregoing discussion has 
 nothing to do with the formal validity of contracts, which is 
 governed by other rules (expressed in a general way by the 
 *maxim locus regit actum) ; and also that all rules of private [340 
 international law depend on practical assumptions as to the con- 
 -duct to be expected at the hands of civilized legislatures and tri- 
 bunals. It is in theory perfectly competent to the sovereign power 
 in any particular state to impose any restrictions, however capri- 
 cious and absurd, on the action of its own municipal courts ; and 
 «ven to municipal courts, in the absence of any paramount direc- 
 tions, to pay as much or as little regard as they please to any for- 
 eign opinion or authority. 
 
 9. Where the performance of a contract lawful in its inception 
 is made unlawful by any subsequent event, the contract is thereby 
 dissolved (c). 
 
 Explanation. — Where the performance is subsequently forbidden 
 
 (a) See judgment of Williams, J. 
 
 (b) [Supra, pp. 283-4.] 
 
 (c; Atkinson v. Bitchie, 10 last, 630; Esposito v. Bowden, p. 282, supra; 
 [Brick Presh. Church v. New York, 5 Cow. 538; Bradford v. Jenkins, 41 Miss. 
 328- Gray v. Sims, 3 Wash. C. C. 276, 280; Brown v. Delano, 12 Mass. 370.] 
 
 387 
 
341 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 by a foreign law, it is deemed to have become not unlawful but im- 
 possible (a). 
 
 This rule does not call for any discussion. It is admitted as cer- 
 tain in Atkinson v. Eitchie (6) and is sufficiently illustrated by the- 
 modern case of Esposito v. Bowden (b), of which some account, 
 has already been given. It applies to negative as well ;is to affirm- 
 ative promises. " It would be absurd to suppose that an action- 
 should lie against parties for doing that which the legislature has 
 said they shall be obliged to do " (c). To the qualification we 
 shall have to return in the following chapter on Impossibility. 
 
 10. Otherwise the validity of a contract is generally determined 
 by the law as it existed at the date of the contract. 
 
 This is a wider rule than those we have already stated' as it ap- 
 plies to the form as well as to the substance of the contract, and 
 not only to the question of legality but to the incidents of the con- 
 tract generally (<•/). It is needless to seek authority to show that 
 an originally lawful contract can not become in itself unlawful by 
 a subsequent change in the law (e). It does not seem certain, 
 however, that the converse proposition would always hold good. 
 341] Perhaps the parties might be entitled to the *benefit of a 
 subsequent change in the law if their actual intention in making 
 the contract was not unlawful. 
 
 The question may be put as follows on an imaginary case, which 
 the facts of Waugh v. Morris (/) show to be quite within the bounds 
 of possibility. A. and B. make an agreement which by reason of 
 a state of things not known to them at the time is not lawful. 
 That state of things ceases to exist before it comes to the knowl- 
 edge of the parties and before the agreement is performed, but A. 
 refuses to perform the agreement on the ground that it was unlaw- 
 ful when made. Is this agreement a contract on which B. can sue- 
 A. ? Justice and reason seem to call for an affirmative answer, and 
 the analogy of "Waugh v. Morris (/), where the Court looked to the- 
 actual knowledge and intention of the parties at the time of the 
 contract, is also in its favor. Apart from this, a contract which. 
 
 (a) Barker v. Hodgson, 3 M. & S. 267; [see infra, 358, 378, note (d).] 
 
 (b) 10 East. 530; Esposito v. Bowden, p. 282, supra. 
 
 (c) Wynn v. Shropshire Union Eys. & Canal Co., 5 Ex. 420, 440. 
 
 (d) Sav. Syst, g 392 (8. 435). 
 
 (e) See Boyce v. Tabb, 18 Wall. 546 ; supra, 275. 
 (/) L. K. 8 Q. B. 202 ; supra, p. 326 
 
 388 
 
SUBSEQUENT CHANGE IN LAW. 342 
 
 ^provides for something known to the parties to be not lawful at 
 the time being dono in the event, and only in the event, of its being 
 made lawful, is free from objection and valid as a conditional con- 
 tract (<t) : unless, indeed, the thing were of such a kind that its be- 
 coming lawful could not be seriously contemplated (b). 
 
 It may perhaps be useful to collect here in a separate form the 
 results of the foregoing discussion, so far as they show in what cir- 
 cumstances and to what extent the knowledge of the parties is ma- 
 terial on the question of illegality. 
 
 «. Immediate object of agreement unlawful. Knowledge of 
 •either or both parties is immaterial (c) : except, perhaps, where 
 the agreement is made in good faith and in ignorance of a state of 
 things making it unlawful ; and in this case it is submitted for the 
 reasons above given that the agreement becomes valid if that state 
 of things ceases to exist in time for the agreement to be lawfully 
 performed according to the original intention. 
 
 /?. A. makes an agreement with B., the execution of which would 
 involve an unlawful act on B.'s part (e.g. a breach of B.'s contract 
 with C.) 
 
 •If A. does not know this, there is a good contract, and [342 
 
 A. can sue B. for a breach of it, though B. can not be compelled to 
 'perform it or may be restrained (d) from performing it. (We may 
 ■ say if we like that B. is deemed to warrant that he can lawfully 
 
 perform his contract.) 
 
 The contract is voidable at A.'s option on the ground of fraud, if 
 
 B. has falsely stated or actively concealed the facts, but not other- 
 wise (e). 
 
 (a) Taylor v. Chichester & Midhurst By. Co., L. E. 4 H. L. 628, 640, 645 ; cp. 
 Mayor of Norwich v. Norfolk Ey. Co., 4E.&B. 397 ; 24 L. J. Q. B. 105; su- 
 pra, p. 245. 
 
 (6) [Where a contract is by force of a statute unlawful at the time of its 
 inception, no action can be maintained upon it, though the statute declaring 
 it illegal be repealed; Woods v. Armstrong, 54 Ala. 150; Gilliland v. Phillips, 
 1 S. C. 152; Eobinson v. Barrows, 48 Me. 180; Webber v. Howe, 36 Mich. 150; 
 Nichols v. Poulson, 6 Ohio, 305 ; Mitchell v. Doggett, 1 Fla. 356.] 
 
 (e) A strong illustration of this will be found in Wilkinson v. Loudon- 
 rsack, 3 M. &S. 117. 
 
 (d) Jones v. North, 19 Eq. 426. 
 
 («) Beachey v. Brown, E. B. & E. 796 ; 29 L. J. Q. B. 105 ; but one can 
 -never be quite safe in drawing any general conclusion from a decision on. 
 ibe contract to marry. 
 
 389 
 
343 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 If A. does know it, the agreement is void. 
 
 y. A. makes an agreement with B., who intends by means of the* 
 agreement or of something to be obtained or done under it to effect 
 an unlawful or immoral purpose. 
 
 If A. does not know of this purpose, there is a contract voidable- 
 at his option when he discovers it. 
 
 If he does know of it, the agreement is void. [But see supra, 
 320, n. (e).] 
 
 Besides the catalogue of occupations, etc., regulated by statutes 
 which we have already promised, we give by way of appendix the 
 provisions of the Indian Contract Act on the subjects comprised 
 in this chapter. 
 
 APPENDIX C. 
 
 The occasional asterisks mean that further remarks on the Act or mat- 
 ter thus denoted will be found in the chapter on Agreements of Imper- 
 fect Obligation. 
 
 Apothecaries. 55 Geo. 3, c. 194. 
 
 Attorneys. See Solicitors. 
 
 Bankers. 3 & 4 Wm. 4, c. 98; 7 & 8 Vict. c. 32; 8 & 9 Vict, c 76; 17 & 
 18 Vict. c. 83. See Lindley, 1, 191. 
 
 Brokers. 6 Ann. c. 68 (Rev. Stat.); 57 Geo. 3, c. Ix. ; rep. in part, 33 & 
 34 Vict. c. 60. Smith v. Lindo, 5 C. B. N. S. 395 ; 5 lb. 587. 
 
 Building. See Metropolitan. 
 
 Cattle. (Sale in London) 31 Geo. 2, c. 40. 
 
 Chain Cables and Anchors. (Sale forbidden if not tested and stamped)'-- 
 34 & 35 Vict. c. 101, s. 7. 
 
 Chimney Sweepers must take out a certificate, and are liable to penalties - 
 if they exercise their business without one; 38 & 39 Vict. c. 70. 
 343] *Clergy. Charging benefices forbidden, 13 Eliz. c. 20. Trading for- 
 bidden, 1 & 2 Vict, c" 106. Supra, p. 264. 
 
 Coals. (Sale in London) 1 & 2 Vict. c. cli. 
 
 Companies. (Formation of: partnerships of more than ten persons for- 
 banking, or twenty for other purposes, must if not otherwise privileged" 
 be registered under the Act) Companies Act 1862, s. 4. 
 
 Conveyancers. 33 & 34 Vict. c. 97, s. 60. Supra, p. 262. 
 
 Dangerous Goods (importation, manufacture, sale, and carriage). 
 Nitro-glycerine, &c. Explosives Act 1875, 38 Vict. c. 17 
 Petroleum, &c. 34 & 35- Vict. c. 105. 
 
 Ezcise. General regulations as to trades and businesses subject to laws- 
 
 of- 
 
 7 & 8 Geo. 4, c. 53. 4 & 5 Vict. c. 20. 
 
 4 & 5 Wm. 4, c, 51. 26 & 27 Vict. c. 33, s. 15. 
 
 3 & 4 Vict. c. 17. 30 & 31 Vict c. 90, s. 17. 
 390 
 
APPENDIX C. STATUTES. 344 
 
 Game (sale of). 1 & 2 Wm. 4, c. 32. Porritt v. Baker, 10 Ex. 759. 
 
 Gaming Securities. 5 & 6 Wm. 4, o. 41. 
 
 Gunpowder (manufacture and keeping). Explosives Act 1875. 
 
 Insurance (Life). Assured must have interest, 14 Geo. 3, c. 48. See- 
 Leake on Contracts, 380 [2d ed. 754; see Insurance Co. v. Schaefer, 94 U. 
 S. 457]. The statute is a defence for the insurers, but if they choose to 
 pay on an insurance without interest the title to the insurance moneys 
 as between other persons is not affected : Worthington v. Curtis, 1 Ch. LV 
 419; see p. 329, supra. 
 
 (Marine). The like: insurances of goods on British ships, " interest or 
 no interest, or without further proof of interest than the policy, or by 
 way of gaming or wagering, or without benefit of salvage to the insurer," 
 are made void by 19 Geo. 2, c. 37. See notes to Goram v. Sweeting, 2 Wms. 
 Saund. 592-7. The prohibition of this statute extends to policies on profit 
 and commission : Allkins v. Jupe, 2 C. P. D. 375. 
 
 *Eequirement of stamped policy, 30 & 31 Vict. c. 23. 
 
 Intoxicating Liquors. Licensing Acts, 1872-1874, 35 & 36 Vict. c. 94, and" 
 37 & 38 Vict. c. 49 (and several earlier Acts). 
 
 Lotteries. Forbidden by 10 Wm. 3, c. 23 (Rev. Stat. : al. 17), and a series 
 of penal statutes of which the last is 8 & 9 Vict. c. 74. 
 
 * Medical Practitioners. 21 & 22 Vict. c. 90; 22 Vict. c. 21; 23 & 24 Vict. 
 cc. 7, 66. 
 
 Metropolitan Buildings. 18 & 19 Vict. c. 122 ; 25 & 26 Vict. c. 102. 
 
 Money. Contracts, &c, must be made in terms of some currency. Coin- 
 age Act 1870, 33 Vict. c. 10, s. 16. 
 
 Old Metal. (Minimum quantities to be bought at one time by dealer in) 
 Prevention of Crimes Act 1871, 34 & 35 Vict. c. 112, s 13. 
 
 Passenger Steamer. Voyage without Board of Trade certificate unlawful, 
 Merchant Shipping Act 1854 (17 & 18 Vict. o. 104), s. 318. Dudgeon v. 
 Pembroke, L. R. 9 Q. B. 581. 
 
 * Pawnbrokers. 35 & 36 Vict. c. 93. Supra, p. 263. [344 
 
 Poison (sale of). 31 & 32 Vict. c. 121, s. 17, and see 32 & 33 Vict. c. 117, s. 
 3. Berry v. Henderson, L. R. 5 Q. B. 296. 
 
 Printing. 32 & 33 Vict. c. 24. Bensley v. Bignold, supra, p. 260. 
 
 Public Office (sale forbidden). 5&6 Edw. 6, c. 16; 3 Geo. 1, c. 15; 49 
 Geo. 3, c. 126; 53 Geo. 3, c. 54; 1 & 2 Geo. 4, c. 54; see Graeme v. Wrough- 
 ton, 11 Ex. 146; 24 L. J. Ex. 265; and Benjamin, 437-442 [2d Am. Ed. 
 500, sqq.] 
 
 Religious Opinions (expression of). 9 Wm. 3, c. 35 (Rev. Stat. : al. c. 32). 
 See Cowan v. Milbourn, L. R. 2 Ex. 230. 
 
 Seamen. Sale of or charge upon wages or salvage invalid, 17 & 18 "Vict. 
 c. 104, s. 233. 
 
 Simony. Purchase of next presentation, 13 Ann. c. 11 (Rev. Stat. : al. 12 
 Ann Stat. 2, c. 12). The purchase of a life estate in an advowson is not 
 ■within the statute, and the purchaser, if a clerk, may offer himself for 
 
 391 
 
345 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 admission on the next avoidance: Walsh v. Bishop of Lincoln, L. R. 10 
 C. P. 518. 
 
 Slave Trade. Illegal, and contracts relating to avoided, 5 Geo: 4, c. 113; 
 € & 7 Vict c. 88. As to construction of the statutes on contracts made 
 abroad, Santos v. Illidge, 6 C. B. N. S. 841; 28 L. J. C. P. 317, in Ex. Ch. 8 
 lb. 861 ; 29 L. J. C. P. 348. 
 
 Solicitors. The principal Act is 23 & 24 Vict. c. 127. Unqualified per- 
 sons are forbidden to practise, *and a solicitor omitting to take out an- 
 nual certificate can not recover costs. Special agreements in writing be- 
 tween solicitor and client as to remuneration are now valid, 33 & 34 Vict. 
 c. 28, ss. 4—15, if not in the nature of champerty, s. 11 : *they can not be 
 sued upon, but may be enforced or set aside in a discretionary manner on 
 motion or petition, ss. 8, 9. See Beese v. Williams, L. E. 10 Ex. 200. A 
 promise to charge no costs at all in the event of losing the action is good 
 apart from the statute, and is not touched by s. 11, Jennings v. Johnson, 
 L. B. 8 C. P. 425. 
 
 Spirits, &c (sale of). *In small quantities, 24 C-eo. 2, c. 40, s. 12 (Tippling 
 Act); 25 & 26 Vict. c. 38; 30 & 31 Vict. c. 142, s. 4. To passengers on 
 ship during voyage, 18 & 19 Vict. c. 119, s. 62. 
 
 Spirits (methylated) as to making, warehousing, sale, &o., 18 & 19 Vict. 
 <;. 38 (and several later Acts). 
 
 Sunday. Work in ordinary callings by tradesmen, &c, and public sales 
 hy any person on Sunday forbidden, also traveling with boats or barges, 
 29 Car. 2, c. 7. See Benjamin on Sale, 442-5 [2d Am. ed. 504, sqq.] 
 
 * Trade Union Contracts, 34 & 35 Vict. c. 31, s. 4. 
 
 Usury. The various statutes which fixed (with sundry exceptions) a 
 maximum rate of lawful interest were all repealed by 17 & 18 Vict. c. 90. 
 It would be perhaps needless at such a distance of time to mention this, 
 were it not that by an extraordinary oversight the last edition of Story on 
 345] Contracts (g 722) represents the statute of Anne *12 Ann. Stat 2, 
 ■c. 16) as still regulating the law of interest in England. *As to securities 
 given after repeal of usury laws for money lent on usurious terms before 
 the repeal, Flight v. Beed, 1 H. & C. 703 ; 32 L. J. Ex. 265. 
 
 Wagers. 8 & 9 Vict. c. 109, supra, p. 265. Benjamin on Sale, 435 [2d Am. 
 ed. 497]. As to the extent of the exceptions, Parsons v. Alexander, 5 E. & B. 
 263 ; 24 L. J. Q. B. 277 ; Coombes v. Dibble, L. B. 1 Ex. 248 ; Diggle v. Higgs, 
 2 Ex. D. 422. Forbearance of proceedings to enforce payment of racing 
 debts by purely conventional sanctions is not an unlawful consideration; 
 qu. whether or not a good consideration ; Bubb v. Yelverton, 9 Eq. 471. 
 
 Wages. Payment otherwise than in money forbidden, 1 & 2 Wm. 4, c. 
 37 (Truck Act), in the trades enumerated in s. 19. Cutts v. Ward, L. B. 
 1 Q. B. 357. The stoppage of wages for frame rents, &c, in the hosiery 
 manufacture is forbidden, and all contracts to stop wages and contracts 
 for frame reme and charges are made illegal null and void, by 37 & 38 
 Vict. c. 48. See Willis v. Thorp, L. B. 10 Q. B. 383; Smith v. Walton, 3 
 C. P. D. 109. 
 392 
 
APPENDIX C. STATUTES 345 
 
 Weights and Measures. Standards defined, and use of other weights and 
 measures forbidden. 5 Geo. 4, c. 74; 5 & 6 Wm. 4, c. 63; 18 & 19 Vict. 
 ■c. 72 ; 22 & 23 Vict. c. 56. The use of the metric system is legalized by 
 :27 & 28 Vict. c. 117. Sales by customary weights or measures which are 
 well known multiples of standard weight or measure are not unlawful. 
 Hughes v. Humphreys, 3 E. & B. 954; 23 L. J. Q. B. 356; Jones v. Giles, 
 10 Ex. 119; 23 L. J. Eq. 292. 
 
 APPENDIX D. 
 
 Indian Contract Act, ss. 23, 24, 26, 27, 28, 30, 57, 58. 
 
 [It is thought unnecessary to set out here the illustrations, of which 
 "there are several, to s. 23, as the cases put are sufficiently obvious. It 
 must be remembered, however, that the illustrations are an integral part 
 of the enactment. None is' given on the head of public policy, whether 
 from a desire not to limit judicial discretion or from the difficulties at- 
 tending the subject: so that the courts are apparently left to fall back 
 upon the English authorities. The sections or clauses which distinctly 
 differ from the corresponding English law are marked with an asterisk.] 
 
 23. The consideration or object of an agreement is lawful unless it is 
 forbidden by law ; or is of such a nature that if permitted, it would de- 
 feat the provisions of any law; or is fraudulent; or involves or implies 
 injury to the person or property of another; or the Court regards it as im- 
 moral or opposed to public policy. 
 
 In each of these cases, the consideration or object of an agreement 
 *is said to b" unlawful. Every agreement of which the object or [346 
 consideration is unlawful, is void. 
 
 24. If any part of a single consideration for one or more objects, or any 
 -one or any part of any one of several considerations for a single object is 
 
 unlawful, the agreement is void. 
 
 Illustration. 
 A. promises to superintend, on behalf of B., a legal manufacture of in- 
 digo and an illegal traffic in other articles. B. promises to pay to A. a 
 salary of 10,000 rupees a year. The agreement is void, the object of A.'s 
 promise, and the consideration for B.'s promise, being in part unlawful. 
 
 26. Every agreement in restraint of the marriage of any person, other 
 than a minor, is void, 
 
 27. Every agreement by which any one is restrained from exercising a 
 lawful profession, trade or business of any kind, is to that extent void. 
 
 Exception 1. One who sells the good-will of a business may agree with 
 the buyer to refrain from carrying on a similar business, within specified 
 local limits,* so long as the buyer, or any person deriving title to the 
 
 393 
 
347 CHAP. VI. UNLAWFUL AGREEMENTS. 
 
 good-will from him carries on a like business therein,* provided that such 
 limits appear to the Court reasonable, regard being had to the nature of 
 the business. 
 
 Exception 2. Partners may, upon or in anticipation of a dissolution of 
 the partnership, agree that some or all of them will not carry on a b isi- 
 ness similar to that of the partnership, within such local limits as are re- 
 ferred to in the last preceding exception. 
 
 Exception 3. Partners may agree that some one or all of them will not 
 carry on any business other than that of the partnership, during the con- 
 tinuance of the partnership. 
 
 28. Every agreement by which any party thereto is restricted abso- 
 lutely from enforcing his rights under or in respect of any contract by 
 the usual legal proceedings in the ordinary tribunals, or which limits the- 
 time within which he may thus enforce his rights, is void to that extent. 
 Exception 1. This section shall not render illegal a contract, by which 
 two or more persons agree that any dispute which may arise between 
 them in respect of any subject or class of subjects, shall be referred to ar- 
 bitration, and that only the amount awarded in such arbitration shall be- 
 recoverable in respect of the dispute so referred. 
 
 *When such a contract has been made a suit may be brought for its 
 specific performance, and if a suit other than for such specific perform- 
 ance, or for the recovery of the amount so awarded, is brought by one 
 347] party to such contract against any other such party in respect *of 
 any subject which they have so agreed to refer, the existence of such 
 contract shall be a bar to the suit. 
 
 Exception 2. Nor shall this section render illegal any contract in writing 
 by which two or more persons agree to refer to arbitration any question 
 between them which has already arisen, or affect any provision of any 
 law in force for the time being as to references to arbitration. 
 
 30. Agreements by way of wager are void, and no suit shall be brought 
 for recovering any thing alleged to be won on any wager or entrusted to- 
 any person to abide the result of any game or other uncertain event on 
 which any wager is made. 
 
 This section shall not be deemed to render unlawful a subscription or 
 contribution, or agreement to subscribe or contribute, made or entered 
 into for or toward any plate, prize, or sum of money* of the value or 
 amount of five hundred rupees or upwards, to be awarded to the winner ■ 
 or winners of any horse-race* 
 
 Nothing in this section shall be deemed to legalize any transaction 
 connected with horse-racing to which the provisions of section 294a of 
 th^ j Tndian Penal Code apply. 
 
 57. Where persons reciprocally promise, firstly to do certain things 
 which are legal, and secondly, under specified circumstance, to do certain 
 other things which are illegal, the first set of promises is a contract, but : 
 the second is a void agreement. -- 
 394 
 
INDIAN CONTRACT ACT. 347" 
 
 Illustration. 
 
 A. and B. agree that A. shall sell B. a house for 10,000 rupees, but that 
 if B. uses it as a gambling house, he shall pay A. 50,000 rupees for it. 
 
 The first set of reciprocal promises, namely to sell the house and to 
 pay 10,000 rupees for it, is a contract. 
 
 The second set is for an unlawful object, namely, that B. may use the 
 house as a gambling house, and is a void agreement. 
 
 58. In the case of an alternative promise, one branch of which is legal 
 and the other illegal, the legal branch alone can be enforced. 
 
 Illustration. 
 A. & B. agree that A. shall pay B. 1,000 rupees, for which B. shall after- 
 wards deliver to A. either rice or smuggled opium. 
 This is a valid contract to deliver rice, and a void agreement as to the- 
 
 opium. 
 
 395 
 
:348, 349 chap. vii. impossible agreements. 
 
 -348] *CHAPTEB VII. 
 
 IMPOSSIBLE. AGREEMENTS. 
 
 An agreement may be impossible of performance at the time- 
 when it is made, and this in various ways. 
 
 It may be impossible in itself; that is, the agreement itself may 
 involve a contradiction, as if it contains promises inconsistent with 
 one another or with the date of the agreement. Or the thing con- 
 tracted for may be contrary to tbe course of nature, " quod natura 
 fieri non concedit " (a). 
 
 As if a man should undertake to make a river run up hill ; to 
 make two spheres of the same substance, but one twice the size of 
 tbe other, of which the greater should fall twice as fast as the 
 smaller when they were both dropped from a height; or to con- 
 struct a perpetual motion (6). 
 
 It may be impossible by law, as being inconsistent with some 
 legal principle or institution. 
 
 As in the cases already considered in Chap. V. of attempts to 
 enable a stranger to a contract to sue upon it by agreement of the 
 parties ; or as if a man should give a bond to secure a simple con- 
 tract with a collateral agreement that the simple contract debt 
 fihould not be merged (c), or should covenant to create a new 
 manor (<£). Again, it is the general rule of law that a man may 
 contract for the sale of a specific thing which is not his own at 
 349] *the time. But if the thing be already the buyer's own, or 
 can not be the subject of private ownership at all (as the site of a 
 public building, the Crown jewels, a ship in the Eoyal Navy), the 
 .agreement is impossible in law. 
 
 (a) D. 45. 1. de. v. o. 35 pr. 
 
 (6) Of these particular impossibilities the second was supposed to be an ele- 
 mentary fact before Galileo made the experiment; the last continues to be 
 now and then attempted by persons who know mechanical handicraft without 
 mechanical principles : we choose the examples as all the more instructive on 
 :that account. 
 
 (e) See Owen v. Homan,. 3 Mae & G. 378, 407-411. 
 
 (d) And see Leake, 359 [2d ed. p. 687.] 
 396 
 
IMPOSSIBLE AGREEMENTS. 350 
 
 It may be impossible in fact by reason of the existence of a par- 
 ticular state of things which makes the performance of the particu- 
 lar contract impossible. As where the contract is to go to a certain 
 island and there load a full cargo of guano, but there is not enough 
 guano there to make a cargo (a) : or a lessee covenants to dig not 
 less than 1,000 tons of a certain kind of clay on the land demised 
 in every year of the term, but there is no such clay on the land (6).. 
 
 Moreover the performance of a contract which was possible in 
 its inception may become impossible in either the second or third 
 of these ways. The authorities are in a somewoat fluctuating con- 
 dition, and perhaps not wholly consistent. But the strong and 
 concurrent tendency of the later cases is to avoid laying down ab- 
 solute rules, and to give effect as far as possible to the real inten- 
 tion of the parties — in other words, to treat the subject as one to 
 be governed by rules of construction rather than by rules of law. 
 And by this means they have done much to clear up and simplify 
 the matter for practical purposes, though a formally accurate state- 
 ment of the law may be difficult to extract from them. Before pro- 
 ceeding to any details we may at once give an outline of the re- 
 sults. 
 
 1. An agreement is void if the performance of it is either impos- 
 sible in itself or impossible by law. 
 
 When the performance of an agreement becomes impossible by 
 law, the agreement becomes void. 
 
 2. An agreement is not void merely by reason of the perform- 
 ance being impossible in fact, nor does it become void by the per- 
 formance becoming impossible in fact without the default of either 
 party, unless according to the true intention of the parties the 
 agreement was conditional on the performance of it being or con- 
 tinuing possible in fact. 
 
 Such an intention is presumed where the performance of the 
 *contract depends on the existence of a specific thing, or on [350 
 the life or health of any person. 
 
 3. If the performance of any promise becomes impossible in fact 
 by the default of the promisee, the promisor is discharged, and the 
 promisee is liable to him under the contract for any loss thereby 
 resulting to him. 
 
 (a) Hills v. Sughrue, 15 M. & W. 253. 
 (J) Clifford v. Watts, L. B. 5 O. P. 577 
 
 397 
 
"351 CHAP. VII. IMPOSSIBLE AGREEMENTS. 
 
 If it becomes impossible by the default of the promisor, the 
 -promisor is liable under the contract for the con-performance. 
 
 1. On the first and simplest rule — that an agreement impossible 
 in itself is void — there is little or no direct authority, for the plain 
 reason that such agreements do not occur in practice ; but it is al- 
 ways assumed to be so. Perhaps even this rule is not accurately 
 stated as an absolute one. There is reason to think the ground of 
 it is this, that the impossible nature of the promise shows that 
 there was no real intention of contracting and therefore no real 
 .agreement. It would thus be reduced to a rule of construction or 
 presumption only, though a strong one. Brett, J., said in Clifford 
 v. Watts (a) : " I think it is not competent to a defendant to say 
 that there is no binding contract, merely because he has engaged 
 to do something which is physically impossible. I think it will be 
 found in all the cases where that has been said, that the thing 
 stipulated for was, according to the state of knowledge of the day, 
 so absurd that the parties can not be supposed to have so con- 
 tracted." The same view is also distinctly given in the Digest (6). 
 It seems to follow then that the question is not whether a thing is 
 .absolutely impossible (a question not always without difficulty), 
 but whether it is such that reasonable men in the position of the 
 parties must treat it as impossible. 
 
 On the other hand a thing is not to be deemed impossible merely 
 because it has never yet been done, or is not known to be possible. 
 " Cases may be conceived," says Willes, J., in the case last cited, 
 "in which a man may undertake to do that which turns out to 
 351] *be impossible, and yet he may still be bound by his agree- 
 ment. I am not prepared to say that there may not, be cases in 
 which a man may have contracted to do something which in the 
 present state of scientific knowledge may be utterly impossible, 
 .and yet he may have so contracted as to warrant the possibility of 
 its performance by means of some new discovery, or be liable in 
 damages for the non-performance, and can not set up by way of 
 defense that the thing was impossible." Indeed many things have 
 
 (a) L. E. 5 C. P. p. 588. 
 
 (b) D. 44 7 de obi. et act. 31. Non solem stipulationes . . sed etiam oe- 
 teri quoque contractus . . impossibili conditione interposita aeque nullius 
 momenti sunt, quia in ea re, quae ex duorura pluriumve consensu agitur, om- 
 nium voluntas speetetur ; quorum procul dubio in huiusmodi actu talis cogita- 
 tio est, ut nihil agi existiment apposita ea conditione quam sciant esse impossi- 
 .bilem. 
 
 398 
 
ABSOLUTE IMPOSSIBILITY. 352 
 
 become possible which were long supposed to be impossible; and 
 this not onlj- in the well-known instances of mechanical invention 
 and the applications of scientific discovery to the arts of life, but 
 in the regions of pure science and mathematics (a). Fifty years 
 ago it seemed impossible that we should ever have direct evidence 
 of the physical constitution of the sun and fixed stars : we now 
 have ranch. 
 
 It is submitted, nevertheless, that the doctrine of the foregoing 
 dicta must be limited to cases where it may be within the serious 
 contemplation of a reasonable man at the time that the thing may 
 somehow be done. For example, a man agrees to make a flying 
 machine and warrants that it shall fly. This may well be a good 
 contract. It is true that no one has yet succeeded in making such, 
 a machine. But the difficulties, great as they are, consist in de- 
 tails ; it is a question of weight and strength of materials, dispo- 
 sition of parts, and application of power ; and these obstacles differ 
 not in kind from such as have already been overcome in other 
 quarters by the progress of mechanical invention and workmanship. 
 Suppose again, that a man agrees to make a flying machine and fly 
 to the moon with it. Now this involves ah undertaking either to 
 live in interplanetary space, which is absolutely impossible, or to 
 make a habitable atmosphere between the earth and the moon, 
 •which is likewise impossible, though not precisely in the same man- 
 ner. It is surely Deedless to put the question whether any court could 
 regard such an agreement as valid, even though the parties were so 
 ignorant as to believe it possible. 
 
 This last qualification, viz., that the parties must be presumed 
 *to have the ordinary knowledge of reasonable men, even if [352 
 the whole thing is treated as a question of intention — is obviously 
 required by convenience, and is contained by implication in the In- 
 dian Contract Act (s. 56, illust. a), which says that an agreement to 
 ■discover treasure by magic is void. In some regions at least of 
 British India the parties might really believe in the efficacy of 
 magic for the purpose. 
 
 It has been said by a writer entitled to great respect that "prac- 
 tical impossibility is placed on the same footing in law with abso- 
 lute impossibility : where i! practical impossibility " means that the 
 
 [a) Mr. Sylvester and M. Peaucellier respectively have lately resolved cer- 
 tain algebraical and geometrical problems long thought insoluble, and which in 
 the latter case an eminent mathematician had even spent much time in trying 
 to prove insoluble 
 
 399 
 
353 CHAP. VII. IMPOSSIBLE AGREEMENTS. 
 
 thing can be done, but only at an excessive or unreasonable cost(<si!).. 
 This, no doubt, is true for some purposes ; a ship is said to be totally 
 lost when it is in this sense practically impossible, though not phys- 
 ically impossible, to repair her, as appears by the context of the- 
 dictum cited by Mr. Leake (b). But the proposition can not be re- 
 lied on as true for the purposes of the matter now in hand, at any 
 rate since the judicial statements above quoted. If a man may bind 
 himself to do something which is only not known to be impossible, 
 much more can he bind himself to do something which is known 
 to be possible, however expensive and troublesome. Indeed r 
 one or two recent dicta seem to go even farther, but probably must 
 be taken as limited to what we here call impossibility in fact (c). 
 
 The other conceivable cases of absolute impossibility may be very, 
 briefly dismissed. Inconsistent or, in the usual technical phrase, 
 repugnant promises contained in the same instrument can not of 
 course be enforced : this however is rather a case of failure of that 
 certainty which, as we saw in the first chapter, is one of the pri- 
 mary conditions for the formation of a contract. There may also- 
 be a repugnancy as to date, as if a man promises to do a thing on 
 a day already past. Practically, however, such a repugnancy can 
 hardly be more than apparent. Either it is a mere clerical or ver- 
 bal error, in which ease the Court may correct it by the context (d) r 
 353] or it arises from the terms of the agreement *being fixed be- 
 fore and with reference to a certain time but not reduced into writ-, 
 ins and executed as a written contract till afterwards. In such a 
 case it must be determined on the circumstances and construction 
 of the contract whether the stipulation as to time is to be treated 
 as having ceased to be part of the contract (in other words, as- 
 having been left in the statement of the contract by a common 
 mistake), or as still capable of giving an independent right of 
 action. At all events it can not be treated as a condition pre- 
 
 (a) Leake on Contracts, 357 [2d ed. p. 682]. 
 {b) Moss v. Smith, 9 C. B. 94, 103. 
 
 (c) See per Mellor, J. L. K. 6 Q. B. 123, per Hannen, J., lb. 127. 
 
 (d) See Pitch v. Jones, 5 B. & B. 238; 24 L. J. Q. B. 293, where a note pay- 
 able two months after date, and made in January, 1855, was dated by mistake 
 1854, but across it was written "due the 4th March, 1855." The Court held 4 
 that this sufficiently corrected the mistake, and might be taken as a direction to- 
 xead 5 for 4. 
 
 400 
 
RELATIVE IMPOSSIBILITY. 354 
 
 cedent so as to prevent the rest of the contract from being en- 
 forced (a). 
 
 Leaving, however, this rather barren 'discussion, we come to a; 
 qualification, or rather explanation, of more practical importance, 
 which follows a fortiori from the principle laid down by Willes, J, 
 Difficulty, inconvenience, or impracticability arising out of circum- 
 stances merely relative to the promisor will not excuse him. '• A 
 person incurring a debt may be, or may become, unable to pay it 
 for want of money ; but he is not on that account excused from his 
 contract " (6). Savigny states the civil law to the same effect. 
 "Impossibility may consist either in the. nature of the action in 
 itself, or in the particular circumstances of the promisor. It is only 
 the first, or objective kind of impossibility that is recognized as 
 such by law. The second, or subjective kind, can not be relied on by 
 the promisor for any purpose, and does not release him from the- 
 ordinary consequences of a willful non-performance of his contract. 
 On this last point the most obvious example is that of the debtor 
 who owes a sum certain but has neither money nor credit. There- 
 is plenty of money in the world, and it is a matter wholly personal 
 to the debtor if he can not get the money he has bound himself to- 
 pay " (c). Therefore a man is not excused who chooses to make* 
 himself answerable for the acts or conduct of third persons, though 
 beyond his control; or even, it seems, for a contingent event int 
 itself possible and ordinary, but beyond the control of man. It 
 has been said that a covenant that it shall rain to-morrow might 
 be good (d), and that " if a man is bound *to another in 207. [354: 
 on condition quod pluvia debet phiere eras, there si pluvia non pluit 
 eras the obligor shall forfeit the bond, though there was no default 
 on his part, for he knew not that it would not rain. In like manner 
 if a man is bound to me on condition that the Pope shall be here 
 at Westminster to-morrow, then if the Pope comes not there is no> 
 default on the defendant's part, and yet he has forfeited the obliga- 
 tion ' (e). " Generally if a condition is to be performed by a 
 
 (a) Hall v. Cazenove, 4 East, 477, where the Court agreed to this extent, but 
 differed on the other question. 
 
 (J) Leake, 369. (e) Sav. Obi. 1. 384. 
 
 (d) By Maule, J., Canham v. Barry, 15 C. B. at p. 619; 24 L. J. 0. P. at p. 
 106. Per Cur., Baily v. De Crespigny, L. R. 4 Q. B. at p. 185. But gu., wouldL 
 not such a contract be a mere wager in almost any conceivable circumstances ? 
 ■ (e) Per Brian, C. J.. Mich. 22 Ed. 4. 26. The whole discussion there is 
 curious, and well worth perusal in the book at large. 
 
 26 401 
 
355 IMPOSSIBLE AGREEMENTS. 
 
 ■stranger and he refuses, the bond is forfeit, for the obligor took 
 upon himself that the stranger should do it" (a). "If the condi- 
 tion be fiat the obiigor shall ride with I. S. to Dover such n day, 
 and I. S does not go thither that day ; in this case it seems the con- 
 dition is broken, and that he must procure I. S. to go thither and 
 ride with him at his peril " (6). Where the condition of a bond 
 was to give such a release as by the Court should be thought meet, 
 it was held to be the obligor's duty to procure the judge to devise 
 •and direct it (c). If a lessee agrees absolutely to assign his lease, 
 the lease containing a covenant not to assign without license, the 
 •contract is binding and he must procure the lessor's consent (d). 
 But on the sale of shares in a company, on the Stock Exchange at 
 all events, the vendor is not bound to procure the directors' assent, 
 though it may be required to complete the transfer (e), and it 
 •seems at least doubtful whether he is so bound in any case (/). 
 
 Where an agreement is impossible by law there is no doubt that 
 it is void (g) ; for example, a promise by a servant to discharge a 
 •debt due to his master is void, and therefore no consideration for a 
 reciprocal promise (ft).; though, by the rule last stated, a promise 
 to procure his master to discharge it would (in the absence of any 
 fraudulent intention against the master) be good and binding. 
 And when the performance of a contract becomes wholly or in part 
 355] impossible by law, the contract is to that ^extent dis- 
 charged (J). The best as well as the latest instance of this is Baily 
 
 (a) Ko. Ab. 1. 452, L. pi. (i. (6) Shepp. Touchst. 392. 
 
 (c) Lamb's ca. 5 Co. Kep. 23i. 
 
 (d) Lloyd v. Oispe, 5 Taunt. 249; cp. Canham o. Barry, 15 C. B. 597; and 
 see other cases in Leake, 370 [2d ed. pp. 697-8; Beebe v. Johnson, 19 Wend. 
 600]. 
 
 (e) Stray v. Russell, Q. B. and Ex. Ch. 1 E. & E. 888, 916; 28 L. J. Q. B. 
 279; 29 L. J. Q. B. 115. 
 
 (/) Lindley, 1. 732, not allowing Wilkinson v. Lloyd, 7 Q. B. 27, to be now 
 law. 
 
 (g) [Stevens v. Ooon, 1 Pinney (Wis.), 356.] 
 
 (h) Harvey v. Gibbons, 2 Lev. 161. It is called an illegal consideration, but 
 such verbal confusions are constant in the early reports. 
 
 (i) [A provision in a contract of insurance that no action shall be sustaina- 
 ble on it unless begun within twelve mqriths next after the occurrence of the 
 loss, does not, in case of war between the countries of the contracting parties, 
 operate lika a statute of limitations, by letting the term open and expand itself 
 so as to receive within it the term of legal disability created by the war, and 
 402 
 
PERFORMANCE IMPOSSIBLE BT LAW. 355 
 
 v. De Crespigny (a). There a lessor covenanted with the lessee 
 that neither he nor his heirs nor his assigns would allow any build- 
 ing (with certain small exceptions) on a piece of land of the lessor's 
 fronting the demised premises. Afterwards a railway company 
 purchased this piece of land under the compulsory powers of an 
 Act of Parliament, and built a station upon it. The lessee sued the 
 lessor upon his covenant; but the Court held that he was dis- 
 charged by the subsequent Act of Parliament, which put it out of 
 his power to perform it. And this was agreeable to the true inten^ 
 tiou, for the railway company coming in under compulsory ^powers, 
 M whom he [the covenantor] could not bind by any stipulation, as 
 he could an assignee chosen by himself," was "a new kind of as- 
 sign, such as was not in the contemplation of the parties when the 
 -contract was entered into." Nor was it material that the company 
 was only empowered by Parliament, not required, to build a sta- 
 tion at that particular place (b). If a subsequent Act of Parliament 
 making the performance of a contract impossible were a private 
 Act obtained by the contracting partj r himself, he might perhaps 
 remain bound by his contract as if he had made the performance 
 impossible by his own act (of which afterwards) : but where the 
 Act is a public one, its effect in discharging the contract can not be 
 altered by showing that it was passed at the instance of the party 
 originally bound (c). 
 
 The principles we have just now considered are very well brought 
 
 then close together at each end of that period, so as to complete itself as though 
 the war had never occurred, hut having hecome impossible of performance by 
 law, is wholly discharged : Semmes v. Insurance Co., 13 Wall. 158. 
 
 " Where, by the terms of a contract for work and labor, the full price is not 
 to be paid until the work is completed, and a complete performance becomes 
 impossible by act of the law, the contractor may recover for the work actually 
 done at the full prices agreed upon :" Jones v. Judd, 4 .N. T. 411. 
 
 To discharge the contract the law must make performance impossible, not 
 merely more expensive or burdensome: Baker v. Johnson, 42 N. Y. 126.] 
 
 (a) L. K. 4 Q. B. 180. (b) L. B. 4 Q. B. 186-7. 
 
 (c) Brown v. Mayor of London, 9 C. B. N. S. 726; 30 L. J. C. P. 225; in 
 Ex. Oh. 13 C. B. N. S. 828; 31 L. J. C. P. 280. [" The corporation of the city 
 of New York conveyed lands for the purposes of a church and cemetery, w.ith 
 a covenant for quiet enjoyment; and afterwards, pursuant to a power granted 
 by the legislature, passed a by-law prohibiting the use of these lands as a cem- 
 etery : held, that this was not a breach of the covenant which entitled to dam- 
 ages, but it was a repeal of the covenant:" Brick Presb. Church v. New York, 
 5 Cow. 538.] 
 
 403 
 
356 CHAP. VII. IMPOSSIBLE AGREEMENTS. 
 
 together in the Digest, in a passage from the work of Venuleius of* 
 Stipulations. " Ulud inspiciendum est, an qui centum dari promisit 
 confestim teneatur, an vero cesset obligatio donee pecuniam con- 
 ferre posset. Quid ergo si neque domi habet neque inveniat cre- 
 ditorem? Sed haec recedunt ab impedimento naturali et respiciunt 
 ad facultatem dandi (a). . . . Et generaliter causa difficultatis 
 ad incommodum promissoris, non ad impedimentum stipulatoris- 
 pertinet [i.e. inconvenience short of impossibility is no answer]. 
 356] . . . Si ab eo stipulates sim, qui *efficere non possit, cum 
 alii possibile sit, iure factam obligationem Sabinus scribit." He 
 goes on to say that a legal impossibility, e.g. the sale of a public- 
 building, is equivalent to a natural impossibility. . . . '' Nee 
 ad rem pertinet quod ius mutari potest et id quod nunc impossibile- 
 est postea possibile fieri ; non enim secundum futuri temporis his- 
 sed secundum praesentis aestimari debet stipulatio " (6) : (as if it 
 should be contended that a covenant to create a new manor is not 
 a covenant for a legal impossibility, because peradventure the stat- 
 ute of Quia Emptores may be repealed.) All this is in exact ac- 
 cordance with English law. 
 
 2. We now come to the cases where the performance of an agree- 
 ment is not impossible in its own nature, but impossible in fact by 
 reason of the particular circumstances. It is a rule admitted by 
 all the authorities, and supported by positive decisions, that impos- 
 sibility of this kind is no excuse for the failure to perform an un- 
 conditional contract, whether it exists at the date of the contract, 
 or arises from events which happen afterwards (c). Thus an abso- 
 lute contract to load a full cargo of guano at a certain island was 
 not discharged by there not being enough guano there to make a 
 cargo (d) : and where a charter-party required a ship to be loaded 
 with usual dispatch^ it was held to be no answer to an action for- 
 delay in loading that a frost had stopped the navigation of the 
 canal by which the cargo would have been brought to the ship in 
 the ordinary course (e). Still less will unexpected difficulty or in- 
 
 (a) For the explanation of a not very clear illustration which follows here, 
 and is omitted in our text, see Sav. Obi. 1. 385. 
 
 (b) D. 45 1. de v. o. 137. gg 4-6. (c) Atkinson „. Ritchie, 10 East. 530. 
 
 (d) Hills v. Sughrue, 15 M. & W. 253. But qu. if this case would now be so- 
 decided. It seems really to fall within the rule in Taylor v. Caldwell (p. 362: 
 below). 
 
 (e) Kearon v. Pearson, 7 H. & N. 386; 31 L. J. Ex. 1. So where a given 
 
 4P.4 
 
PERFORMANCE IMPOSSIBLE IN FACT. 357 
 
 •Convenience short of impossibility serve as an excuse (a) Where 
 insured premises were damaged by fire and the insurance company, 
 having an option to pay in money or reinstate the building, elected 
 to reinstate, but before they had done so the whole was pulled 
 down by the authority of Commissioners of Sewers as being in a 
 dangerous condition ; it was held that the company were bound by 
 their election, and the performance of the ^contract as they [357 
 had elected to perform it was not excused (b). So again if a man 
 •contracts to do work according to orders or specifications given or 
 to be given by the other contracting party, he is bound by his con- 
 tract, although it may turn out not to be practicable to do the work 
 in the time or manner prescribed. In Jones v. St. John's College 
 (Oxford) (c) the plaintiffs contracted to erect certain farm build- 
 number of days is allowed to the charterer for unloading, he is held to take the 
 '-risk of any ordinary vicissitudes which may cause delay: Thiis v. Bvers, 1 Q. 
 B. D. 244. 
 
 (a) [Jones v. United States, 96 U. S. 24, 29; The Harriman, 9 Wall. 161; 
 Harmony v. Bingham, 12 N. Y. 99; Booth v. Spuyten Duyvil R. M. Co., 60 N. 
 Y. 487; Youqua v. Nixon, 1 Pet. C. C. 221; Dodge v. Van Lear, 5 Gr. C. C. 
 278; Eddy v. Clement, 38 Vt. 486: Bacon v. Cobb, 45 111. 47; Hand v. Baynes, 
 4"Whart. 204; Bank v. Burt, 5 Allen, 113; Dewey v. Union School District, 
 
 ..Sup. Ct. Mich., 10 C. L. J. 426. 
 
 Where'a person contracts to build a house on the land of another, and per- 
 formance becomes impracticable, either by reason of a latent defect in the soil, 
 •or the contract being to finish and deliver the house by a day named, by reason 
 of the accidental destruction of the building shortly before that day, he is not 
 -excused from performance; and performance not being excused he can not re- 
 gain installments paid on account: Tompkins v. Dudley, 25 IS. Y. 272; School 
 Dist. No. 1 v. Daucby, 25 Conn. 530; Stees v. Leonard, 20 Minn. 494; School 
 Trustees v. Bennett, 3 Dutch. 513. 
 
 In Dermott v. Jones, 2 Wall. 1, Jones had covenanted for the erection and 
 •complete finishing for use and occupation by a day fixed, of a house upon the 
 -land of Miss Dermott. Owing to a latent defect in the soil, causing the founda- 
 tion to sink, he failed to make part of the building fit for use and occupation. 
 Miss Dermott was compelled to take that part dowh, renew the foundation with 
 .artificial floats, and rebuild. The Court held that while the builder was not ex- 
 cused from performance, he might recover in indebitatus assumpsit, the owner 
 having accepted the work, but that the latter was entitled to recoup for the 
 -damages sustained by the plaintiffs 's deviations from the contract, both as to 
 the manner and time of the performance.] 
 
 (b) Brown v. Royal Insurance Co., 1 E. & E. 853 ; 28 L. J. Q. B. 275, diss. 
 Erie, J., who thought such a reinstatement as was contemplated by the contract 
 
 ■(not being an entire rebuilding) had become impossible by the act of the law. 
 
 (c) L. R. 6 Q. B. 115, 124. 
 
 405 
 
358 CHAP. VII. IMPOSSIBLE AGREEMENTS. 
 
 ings according to plans and specifications furnished to them, to- 
 gether with any alterations or additions within specific limits- 
 which the defendants might prescribe, and subject to penalties if 
 the work were not finished within a certain time. And they ex- 
 pressly agreed that alterations and additions were to be completed 
 on the same conditions and in the same time as the works under 
 the original contract, unless an extension of time were specially 
 allowed. It was held that the plaintiffs, having contracted in such 
 terms, could not avoid the penalties for non-completion by showing 
 that the delay arose from alterations being ordered by the defend- 
 ants, which were so mixed up with the original work that it be- 
 came impossible to complete the whole within the specified time. 
 In Thorn v. Mayor of London (a) a contractor undertook to exe- 
 cute works according to specifications prepared by the engineer of 
 the corporation. It turned out that an important part of the works 
 could not be executed in the manner therein described, and after- 
 fruitless attempts in which the plaintiff incurred much expense, 
 that part had to be executed in a different way. It was held that 
 no warranty could be implied on the part of the corporation that 
 the plans were such as to make the work in fact reasonably practi- 
 cable, and that the plaintiff could not recover as on such a war- 
 ranty, the value of the work that had been thrown away. The 
 judgments in the House of Lords leave it an open question whether, 
 assuming the extra work thus caused not to have been extra work 
 of the kind contemplated by the contract itself and to be paid for 
 under it, the plaintiff might not have recovered for it as on a 
 quantum meruit. In short, it is admitted law that generally where 
 358] there is a positive. *contract to do a thing not in itself unlaw- 
 ful, the contractor must perform it, or pay damages for not doing- 
 it, although in consequence of unforeseen accidents the perform- 
 ance of his contract has become unexpectedly burdensome or even, 
 impossible (b). 
 
 Where the performance of a contract becomes impracticable by 
 reason of its being forbidden by a foreign law, it is deemed to have 
 
 (») L. R. 9 Ex. 163, in Ex. Ch. 10 Ex. 112, affd. in H. L. 1 App. Ca. 120. 
 
 (A) Taylor v. Caldwell, 3 B. & S. 826, 833; 32 L. J. Q. B. 164, 166. This 
 rule does not extend, however, beyond express contracts. An undertaking to 
 Vie answerable for delay caused by vis major can not be made part of an im- 
 plied contract; Ford v. Cotesworth (Ex. Ch.) L. K. 5 Q. B. 544. [Hand «.. 
 Baynes, 4 Whart. 204, 213-214. 
 406 
 
ACCIDENTS SUBSEQUENT TO CONTRACT. JJ58 
 
 become impossible, not in Law, but in fact (a).. In Barker v. Hodg- 
 son (6) intercourse with the port to which a ship was chartered 
 was prohibited on account of an epidemic prevailing there, so that 
 the freighter was prevented from furnishing a cargo; but it was 
 held that this did not dissolve his obligation. So if the goods are 
 confiscated at a foreign port, that is no answer to an action against 
 the shipowner for not delivering them (<;). 
 
 Certain cases, of which Paradine v. Jane (d) is the leading one,, 
 are often referred to upon this head. The effect of them is that 
 the accidental destruction of a leasehold building, or the tenant's 
 occupation being otherwise interrupted by inevitable accident, 
 does not determine or suspend the obligation to pay rent either at 
 law or in equity (e). In these cases, however, the performance of 
 the contract does not really become impossible. There is obviously 
 nothing impossible in the relation of landlord and tenant continu- 
 ing with its regular incidents. We must be careful not to lose 
 sight of the two distinct characters of a lease as a contract (or as- 
 semblage of contracts) and as a conveyance. There is a common 
 misfortune depriving both parties to some extent of the benefit of 
 their respective interests in the property; not of the benefit of the 
 contract, for so far as it is a matter of contract, neither party is in. 
 
 (a) [Cp. infra, 378, note (of).] (6) 3 M. & S. 267. 
 
 (cj Spence v. Chodwick, 10 Q. IB. 517. (d) Aleyn, 26. 
 
 («) Leeds v. Cheetham, 1 Sim. 148; Lofft v. Dennis, 1 E. & E. 474; 28 L. J. 
 Q. B. 168; [Gates v. Green, 4 Paige, 355; Linn v. Ross, 10 Ohio 412; Hallett v. 
 "Wylie, 3 Johns. 44; Peterson v. Edmondson, 5 Harringt. 378; Niedelet o. 
 Wales, 16 Mo. 214; Eowler, v. Bott, 6 Mass. 63; Robinson v. L' Bugle, 13 Fla. 
 482. 
 
 But a lessee who, during the late civil war, was dispossessed by the military 
 authorities and deprived of the use and control of the demised premises, his- 
 lessor having gone within the lines of the enemy, was held to be discharged 
 from liability to the .lessor for the rent accruing during the period of such dis- 
 possession: Gates v. Goodloe, 101 U. S. 612; and see Harrison v. Meyer, 92 
 U. S. 111. 
 
 It has been held in this country that the lessee of apartments in a building,, 
 his lease giving him no interest in the soil upon which the building stands, is 
 released from his covenant to pay rent by the accidental destruction of the ed- 
 ifice: Graves v. Berdan, 26 N. "5f. 498; Ainsworth v. Ritt, 38 Cal. 89; McMil- 
 lan v. Solomon, 42 Ala. 356; Womaek v. McQuarry, 28 Ind. 103; and see Win- 
 ton v. Cornish, 5 Ohio, 477; Kerr v. Merchants' Exchange Co., 3 Edw. Ch. 315; 
 Stockwellv. Hunter, 11 Met. 448; Bank v. Boston, 118 Mass. 125; Buerger v. 
 Boyd, 25 Ark. 441. Contra, Helburn v. Moffard, 7 Bush, 169.] 
 
 407 
 
359- CHAP. VII. IMPOSSIBLE AGREEMENTS. 
 
 a legal sense disabled from performing any material part of it. 
 ■The expense of getting housed elsewhere, or the loss of profits 
 359] from a business carried *on upon the premises, may render 
 it difficult or even impracticable for the tenant to go on paying 
 rent. But it does not render the payment of his rent impossible 
 in any other sense than it renders the payment of any other debt 
 to any other creditor impossible (a). It is a personal and relative 
 " causa diffieultatis ; " which, as we have seen, is irrelevant in a le- 
 gal point of view. The lessee's special covenants, if such there be, 
 to paint the walls at stated times or the like, do become impossible 
 of performance by the ^destruction of their subject-matter, and to 
 that extent, no doubt, are discharged or suspended as being within 
 the rule in Taylor v. Caldwell, which we shall immediately con- 
 sider. Only to this limited extent is there any precise resemblance 
 to the wider class of cases where the performance of a contract be- 
 comes in fact impossible. The true analogy is in the nature of the 
 question which the rule of law has to decide : namely, whether the 
 contract is in substance and effect as well as in terms unconditional 
 and without any implied exception of inevitable accident. We 
 shall see that this is always the real question. The answer being 
 here determined by Paradine v. Jane (b), it was held in the later 
 cases (c) (about which difficulties are sometimes felt, but it is sub- 
 mitted without solid reason) that it is not affected by the landlord 
 having protected himself by an insurance, which is a purely col- 
 lateral contract of indemnity. There might indeed very well be a 
 further collateral agreement between the landlord and tenant that 
 the landlord should apply the insurance moneys to rebuilding the 
 premises. Such an ;igreement would be good without any new 
 consideration on the tenant's part beyond his acceptance of the 
 lease, and probably without being put into writing (d). On the 
 
 (a) See per Lord Blackburn, 2 App. Ca. 770. 
 
 (b) Aleyn, 26. 
 
 (c) Leeds v. Cheetham, 1 Sim. 146 ; Lofft v. Dennis, 1 E. & E. 474; 28 L. J. 
 <J. B. 108. [So where the tenant covenants to keep the building in repair, and 
 at the end of the term to deliver it up in as good condition as when he received 
 it, though the landlord protects himself by an insurance, if the building is de- 
 stroyed by fire, the tenant having rebuilt in performance of his covenant, has 
 no claim upon the insurance money; Ely v. Ely, 80 111.532; but the tenant 
 having repaired, the insurance company can recover from the landlord the 
 insurance which it has paid; Darrell v. Tibbitls, 5 Q. B. D. 560.] 
 
 (rf) Parol collateral agreements have been held good in Erskine v A.deane, 
 408 
 
ACCIDENTS SUBSEQUENT TO CONTRACT. 3G0 
 
 other hand it is often a term of the lease that the tenant shall keep 
 the premises insured and that in case of fire the insurance moneys 
 -shall be applied in reinstatement. There, if the landlord has in- 
 sured separately without the knowledge of the tenant, so that the 
 damage is apportioned between the two policies, and the amount 
 received by the tenant is *diminished, the tenant is entitled [360 
 to the benefit of the other policy also (a). 
 
 The rule or presumption might, of course, be the other way, 
 as it is by the civil law, where it is an incident of the contract to 
 pay rent that it is suspended by inevitable accident destro3nng or 
 making useless the thing demised. The particular event on which 
 Paradine v. Jane was decided, eviction by alien enemies (6), is ex- 
 pressly dealt with in this manner. The law of Scotland follows 
 the civil law (c). Either way the rule is subject to any special 
 .agreement of the parties, and it is but a question which, in the ab- 
 sence of such agreement, is the better distribution of the hardship 
 that must to some extent fall upon both. It is hard for a tenant, 
 according to the English rule, to pay an occupation rent for a burni; 
 ■out plot of ground. It is hard for a landlord, according to the 
 Eoman and Scottish rule, to lose the rent as well as (it may be) a 
 material part of the value of the reversion. Either party may be 
 insured ; but that, as we have said, is not of itself relevant as be- 
 tween them. 
 
 So far the general rule. , The nature of the exceptions is thus 
 -set forth by the judgment of the Court in Baily v. DeOrespigny : — 
 
 "There can be no doubt that a man may by an absolute contract bind 
 himself to perform things which subsequently become impossible or to 
 pay damages for the non-performance, and this construction is to be put 
 upon an unqualified undertaking, where the event which causes the im- 
 possibility was or might have been anticipated and guarded against in the 
 contract, or where the impossibility arises from the act or default of the 
 promisor. 
 
 But where the event is of such a character that it can not reasonably 
 
 8 Cli. 756; Morgan v. Griffith, L. B. 6 Ex. 70; Angell v. Duke, L. E. 10 Q. B. 
 174 ; [supra, p. 143, note (<:).] 
 
 (a) Beynard v. Arnold, 10 Ch. 386. 
 
 ■(b) Si incursus hostium flat, D. 19..2. locati conducti, 15, § 2; or even reason- 
 able fear of it : Si quis timoris causa emigrasset . . . respondit, si causa 
 fuisset cur periculum timeret, quamvis periculum vere non fuisset, tamen son 
 •debere mercedem ; sed si causa timoris iusta non fuisset, nihilominus debere, D. 
 -eod, tit. 27, §1. 
 
 (c) Per Lord Campbell, Lofft v. Dennis, supra; [Gates v. Green, 4 Paige, 355!] 
 
 409 
 
361 CHAF. VII. IMPOSSIBLE AGREEMENTS. 
 
 be supposed to have been in the contemplation of the contracting parties- 
 when the contract was made, they will not be held bound by general 
 words which, though large enough to include, were not used with refer- 
 ence to the possibility of the particular contingency which afterwards 
 361] happens. It is on this principle that the act of God is in *some 
 cases said to excuse the breach of a contract. This is, in fact, an inaccu- 
 rate expression, because, where it is an answer to a complaint of an al- 
 leged breach of contract that the thing done or left undone was so by the 
 act of God, what is meant is that it was not within the contract (a). 
 
 This (as well as the following context, which is too long to quote) 
 •well shows the modern tendency, to which we have already called 
 attention, to reduce all the rules on this subject to rules of con- 
 struction (b). By the modern understanding of the law we are not 
 bound to seek for. a general definition of " the act of God " or vis 
 major (c), but only to ascertain what kind of events were within 
 the contemplation of the parties, including in the term event an 
 existing but unascertained state of facts. This is yet more apparent 
 if one attempts to frame any definition of the term "act of God." 
 It does not include every inevitable accident ; contrary winds, for 
 example, are not within the meaning of the term in a charter-party. 
 Nor is the reason far to seek; the risk of contrary winds, though 
 inevitable, is one of the ordidary risks which the par Lies must be 
 understood to have before them and to take upon them in making 
 such a contract: therefore it is said that the event must be not 
 merely accidental, but overwhelming (d). But on the other hand 
 the term is not confined to unusual events: death, for example, is 
 an ''act of God " as regards contracts of personal service, because 
 in the particular case it is not calculable. Yet the fact that this 
 very event is not only certain to happen, but on a sufficiently hirge 
 average is calculable, is the foundation of the whole system of life 
 annuities and life insurance. Again, death is inevitable sooner or 
 later, but may be largely prevented as to particular causes and oc- 
 casions. The effects of tempest or of earthquake may be really in- 
 evitable by any precaution whatever. But fire is not inevitable in 
 
 (a) L. K. 4 Q. B. 185. 
 
 (b) ["The relief afforded to the party in the cases referred to is not based' 
 upon exceptions to the general rule, but upon the construction of the contract. ;" 
 Dexter v. Norton, 47 ST. Y. 62, 64.] 
 
 (c) Both these terms are classical: "Vis maior, quam Graeci deov /3iav appel- 
 l»Dt." Gaius in D. 19. 2. locati 25, \ 6. 
 
 (il) Per Martin, B., Oakley v. Portsmouth & Eyde Steam Packet Co., 11 Ex- 
 CIS. 
 
 410 
 
EVENTS NOT CONTEMPLATED BY CONTRACT. 362" 
 
 that sense. Precautions may be taken both against its breaking 
 out and for extinguishing it when it does break out. We can not 
 arrive, then, at any more distinct conception than this: An event 
 which, as between the parties and for the purpose of the matter in 
 *hand, can not be definitely forseen or controlled. In other [362" 
 words, we are thrown back upon the nature and construction of 
 the particular contract (a). 
 
 "We may now proceed to the specific classes of exceptional cases. 
 
 a- Where the performance of the contract depends -on the ex- 
 istence of a specific thing. The law was settled on this head by 
 Taylor v. Caldwell (6), where the defendants agreed to let the 
 plaintiffs have the use (6) of the Surrey Gardens and Music Hall 
 on certain days for the purpose of giving entertainments. Before 
 the first of those days the music hall was destroyed by fire so that 
 the entertainments could not be given, and without the fault of 
 either party. The Court held that the defendants were excused,, 
 and laid down the following principle : " 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 fulfillment 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; there in the absence of any express or 
 implied (c) warranty that the thing shall exist, the contract is not 
 to be considered a positive contract, but subject to the implied 
 condition that the parties shall be excused in case, before breach, 
 performance becomes impossible from the perishing of the thing- 
 without default of the contractor" (d). And the following author- 
 ities and analogies were relied upon : — 
 
 The civil law, which implies such an exception in all cases of 
 
 (a) As to what is such an "act of God" as will make an exception to a duty 
 imposed not specially by contract but by the general law, see Nichols v. Mars- 
 land, 2 Ex. D. 1 ; Nugent v. Smith, 1 C. P. D. 423, 444, both in C. A. 
 
 (6) 3 B. & S. 826 ; 32 L. J. Q. B. 164. There were words sufficient for an 
 actual demise, but the court held that the manifest general intention prevailed 
 over them. 
 
 (c) That is, understood in fact between the parties: the whole scope of the 
 passage being that it is not to be implied by law. 
 
 (d) [Price v. Pepper, 13 I3ush. 42 Dexter v. Norton, 47 N. Y. 62; School' 
 Dist. No. 1 a. Dauchy, 25 Conn. 530; Wells v. Oalnan, 107 Mass. 514; Walker- 
 v. Tucker, 70 111 527.] 
 
 411 
 
363 CHAP. VII. IMPOSSIBLE AGREEMENTS. 
 
 363] obligation de certo corpore. (D. 45. 1. de v. o. 23, 33 (a) : *Po- 
 4hier, Obi. § 149, ib. Part 8, ch. 6, §§649, sqq, and Oontrat de Vente, 
 § 308, sqq. translated in Blackburn on Sale, 173.) 
 
 The cases of contractual rights or duties of a strictly .personal 
 nature which, though the contract is not expressly qualified, are 
 by English law not transmissible to executors (see ch. V., p. 172, 
 
 .above). 
 
 f- The admitted rule of English law that where the property in 
 specific chattels to be delivered at a future day has passed by bar- 
 gain and sale, and the chattels perish meanwhile without the ven- 
 dor's default, he is excused from performing his contract to deliver ; 
 and the similar rule as to loans of chattels and bailments. In all 
 these cases, though the promise is in words positive, the exception, 
 is allowed " because from the nature of the contract it is apparent 
 that the parties contracted on the basis of the continued existence 
 of the particular person or chattel." 
 
 The same principle was followed in Appleby v. Meyers (&).. 
 There the plaintiffs agreed with the defendant to erect an engine 
 .and other machinery on his premises, at certain prices for the sep- 
 arate parts of the work, no time being fixed for payment. While 
 the works were proceeding, and before any part was complete, the 
 premises, together with the uncompleted works and materials upon 
 them, were accidentally destroyed by fire. In the Common Pleas it 
 was held that the plaintiffs might recover the value of the work 
 already done as on a term to that effect to be implied in the nature 
 •of the contract. And in the court above authorities to the same 
 effect were cited from the Digest and from modern French writers; 
 these, however, were not discussed in the judgment, the Court 
 merely observing that they were not binding. In the Exchequer 
 
 •Chamber the judgment of the Common Pleas was reversed. It 
 was admitted that the work under the contract could not be done 
 unless the defendant's premises continued in a fit state to receive it. 
 It was also admitted that if the defendant had by his own default 
 rendered the premises unfit to receive the work, the plaintiffs might 
 have recovered the value of the work already done (c). But it 
 
 (a) Cp. also D. 46. 3. de solut. 107. Verborumobligatioaut naturaliter resoly- 
 -jtur aut civiliter; naturaliter, veluti solutione, aut cum res in stipulationem. 
 ^doducta sine culpa pvomissoris in rebus humanis esse desiit. 
 
 (6) L. R. 2 0. P. 651, in Ex. Ch. revg, s. c. 1 0. P. 615. 
 
 (c)' [See Sinnott v. Mallin, 82 Pa. St. 333.] 
 412 
 
DESTRUCTION OF SUBJECT-MATTER. 364 
 
 "was held that the court below were wrong in thinking that 
 *there was an absolute promise or warranty by the defend- [364 
 ant that the premises should at all events continue so fit. " Where, 
 as in the present case, the premises are destroyed without fault on 
 either side, it is a misfortune equally affecting both parties, excus- 
 ing both from further performance of the contract, but giving a 
 cause of action to neither " (a). Another argument for the plaintiffs 
 was that the property in the work done had passed to the defend- 
 ant and was therefore at his risk (6). To this the Court answered 
 that it'was at least doubtful whether it had; and even if it had, the 
 contract was still that nothing should be payable unless and until 
 the whole work was completed. 
 
 Where there is an enth-e contract for doing work upon specific - 
 property, as fitting a steamship with new machinery, for a certain 
 price, but the price is payable by installments, and the ship is lost 
 before the machinery has been delivered, but after one or more of 
 the installments has been paid, the farther performance of the con- 
 tract is excused, but the money already paid, though on account - 
 not of a part, but of the entire contract, can not be recovered 
 back (c). 
 
 The same doctrine has been applied where the subject-matter of ' 
 the contract is a future specific product or some part of it. In 
 March A. agreed to sell and B. to purchase 200 tons of potatoes 
 grown on certain land belonging to A. In August the crop failed 
 
 (a) [Ace. Brumby v. Smith, 3 Ala. 123; contra, Niblo v. Binsse, 3 Abb. App. 
 Dec. 375; Hollis v. Chapman, 36 Tex. 1; cp. Lord v. Wheeler, 1 Gray, 282; 
 Kawson v. Clark, 70 111. 656.] 
 
 (b) In the cases cited in argument from Dalloz, Jurisp. Gen. 1861, pt. 1. 105, 
 Chemin de fer du Dauphin^ v. Clet, where railway works in course of construc- 
 tion had been spoilt by floods, the Court of Cassation relied on the distinction 
 that they were not such as remained in the contractor's disposition till the 
 whole was finished, but " de constructions dont les materiaux et la main d'oeuvre- 
 gtaient fournis par l'entrepreneur et qui s'incorporaient au sol du proprigtaire," 
 as excluding the application of articles 1788-1790 of the Code Civil, which lay 
 down a rule similar to that of the principal case. 
 
 . (a) Anglo-Egyptian Navigation Co. v. Eennie, L. B. 10 C. P. 271. It would 
 seem the same on principle where the whole price is paid in advance. See 
 Vangerow, Pand. 3. 234 sqq., and the cases on contracts, personal service, and 
 apprenticeship, cited farther on. [In Schwartz v. Saunders, 46 111. 18, the 
 premises on which the work was being done were destroyed after an install- 
 ment was due and before it was paid: Held, that the workman could recover 
 for the work done.] 
 
 413 
 
'365 CHAP. VII. IMPOSSIBLE AGREEMENTS. 
 
 by the potato blight, and A. was unable to deliver more than 80 
 tons : the Court held that he was excused as to the rest. " The 
 contract was for 200 tons of a particular crop jn particular fields " 
 . . . " not 200 tons of potatoes simply, but 200 tons off particu- 
 365] lar land " . . . " and therefore there was *an implied 
 term in the contract that each party should be free if the'erop per- 
 ished " (a). 
 
 These are all eases of the performance becoming impossible by 
 events which happen after the contract is made. But sometimes 
 the same kind of impossibility results from the existence of a state 
 of things not contemplated by the parties, and the performance is 
 excused to the same extent and for the same reasons as if that state 
 of things had supervened. Where indeed the impossibility con- 
 sists in the absolute non-existence of the specific property or inter- 
 est in property which is the subject-matter of the agreement, there, 
 on principles independent of those now under consideration, the 
 agreement is void as being grounded on a material mistake com- 
 mon to the parties : and this particular topic is therefore reserved 
 for the following chapter, where we speak of Fundamental Error 
 .as preventing the formation of a true contract. There are some 
 cases however which, although the line is difficult to draw seem to 
 fall- more properly within the present division. 
 
 When a lessee under a mining lease covenants in unqualified 
 terms to pay a fixed minimum rent, he is bound to pay it both at 
 law (b) and in equity (c), though the mine may turn out to be not 
 worth working or even unworkable. But it is otherwise with a 
 •covenant to work the mine (d) or to raise a minimum amount. In 
 the case in equity last referred to (c) where a coal mine was found 
 to be so interrupted by faults as to be not worth working, it was 
 said that the lessor might be restrained from suing on the covenant 
 to work it on the terms of the lessee paying royalty on the esti- 
 mated quantity of coal which remained unworked. A similar 
 -question was fully dealt with in Clifford v. Watts (e). , The demise 
 was of all the mines, veins, etc., of clay on certain land. There 
 
 (a) Howell v. Coupland, L. E. 9 Q. B. 462, 466, affd. in O. A. 1 Q. B. D. 258; 
 *ee per Cleasby, B., at p. 263. 
 
 (A) Marquis of Bute v. Thompson, 13 H. & W. 487. 
 
 (c) Kidgway v. Sneyd. Kay, 627. 
 
 (d) [Walker v. Tucker, 70 III. 527, 542-543.] 
 .(e) L. R. 5 O. P. 577. 
 
 414 
 
EXISTING PACTS NOT CONTEMPLATED BY PARTIES. 366 
 
 -was no covenant by the lessee to pay any minimum rent, but therj 
 -was acovenant to dig in every year of the term not less than 1,000 
 tons nor more th;in 2,000 tons of pipe or potter's clay. An action 
 was brought by the lessor for breach of this covenant, Plea (a), 
 to the effect that there was not at *the demise or since so [366 
 much as 1,000 tons of such clay under the lands, that the perform- 
 ance of the covenant had always been, impossible, and that at the 
 date of the demise the defendant did not know and had no reason- 
 able means of knowing the impossibility. The Court held that 
 upon the natural construction of the deed the contract was 
 that the lessee should work out whatever clay there might be under 
 the land, and the covenant sued on was only a subsidiary provision 
 fixing the rate at which it should be worked. The tenant could 
 not be presumed to warrant that clay should be found : and 
 "the result of a decision in favor of the plaintiff would be to 
 give him a fixed minimum rent when he had not covenanted 
 for it" (b). 
 
 Iu certain kinds of contracts, notably charter-parties, it is usual 
 to provide by express exceptions for .the kind of events we have 
 been considering. It is not within our province to enter upon the 
 -questions of construction which arise in this manner, and which 
 lorm important special topics of commercial law. However, when 
 the exception of a certain class of risks is once established, either 
 iis being implied by law from the nature of the transaction, or by 
 the special agreement of the parties, the treatment is very much the 
 same in principle : and a few recent decisions may be mentioned as 
 throwing light on the general law. Where the principal part of 
 the contract becomes impossible of performance by an excepted 
 risk, the parties are also discharged from performing any other 
 part which remains possible, but is useless without that which has 
 become impossible (<;). It is a general principle that a contract is 
 ^ . 
 
 (a) It was pleaded as an equitable plea, but the Court treated the . defense as 
 a legal one. 
 
 (b) Per Montague Smith, J., at p. 587. Cp. and dist. J-ervis v. TomUinson, 1 
 H. & N. 195, 26 L. J. Ex. 41, where the covenant was not only to get 2,000 tons 
 of rock salt per annum, but to pay 6d. a ton for every ton short, and the lessees 
 knew of the state of the mine when they executed the lease. 
 
 (c) Geipal v. Smith, L. R. 7 Q. B. 404, 411. [Where the defendants con- 
 tracted- with the proprietors of a theater to. fufnish the "Wachtel Opera 
 Troupe" to give a certain number of performances, Wachtel being the leader 
 and chief attraction of the company, and his connection with it the inducement 
 
 415 
 
367 CHAP. VII. IMPOSSIBLE AGREEMENTS. 
 
 not to be treated as having become impossible of performance if by 
 any reasonable construction it is still capable in substance of 
 being performed (a) : but on the other hand special exception* 
 are not to be laid hold of to keep it in force contrary to the real 
 intention. Thus' where the contract is to be performed "with 
 all possible dispatch," saving certain impediments, the party for 
 367] *wbose benefit the saving is introduced can not force the 
 other to accept performance after a delay unreasonable in itself, 
 though due to an excerjted cause, if the manifest general intention 
 of the parties is that the contract shall be performed within a rea- 
 sonable time, if at all. The saving clause will protect him from 
 liability to an action for the delay, but that is all : the other party 
 can not treat the contract as broken for the purpose of recovering 
 damages, but he is not prevented from treating it as dissolved (b). 
 ft. Where the performance of the contract depends on the life or 
 health of a person. " All contracts for personal services which can 
 be performed only during the lifetime of the party contracting are- 
 subject to the implied condition' that he shall be alive to perform 
 them ; and should he die, his executor is not liable to an action fbr 
 the breach of contract occasioned by his death " (c). Conversely,, 
 if the master dies during the service, the servant is thereby dis- 
 charged, and can not treat the contract as in force against the 
 master's personal representatives (d). The passage now cited goes- 
 on to suggest the extension of this principle to the' case of the 
 party becoming, without his own default, incapable of fulfilling th& 
 contract in his lifetime : " A contract by an author to write a book r 
 or by a painter to paint a picture within a reasonable time, would 
 
 to plaintiffs to enter into the contract, it was held " that the presence of Wach- 
 tel was the principal thing contracted for, and was of the essence of the con- 
 tract; that plaintiffs would not have been bound to accept the services of the- 
 troupe without him,'' and that the illness of Wachtel having incapacitated him 
 to perform constituted a valid excuse for defendant's failure to furnish the- 
 troupe : Spalding v. Rosa, 71 N". Y. 40.] 
 
 (ra) The Teutonia, L. B. 4 P. C. 171, 182. Cp. Jones v. Holm, L. E. 2 Ex.. 
 335. [Op. Williams v. Vanderbilt, 28 N. Y. 217; White v. Mann, 26 Me. 301.]. 
 
 (6) Jackson v. Union Marine Insurance Go. in Ex. Ch. L. B. 10 C. P. 125, 
 144, sqq. 
 
 (c) Pollock, C. B., in Hall v. Wright, E. B. & E. at p.' 793; 29 L. J. Q. B. at 
 p. 51 ; [Nor can the executor insist that the other party shall accept perform- 
 ance by himself in place of the decedent; Schultz v. Johnson's Adm'r., 5 B. 
 JMon. 497.] 
 
 (rf) Farrow v. Wilson, L. R. 4 C. P. 744; [Terrington v. Green, 7 B. I. 589.]/ 
 416 
 
PERSONAL CONTRACTS. 368 
 
 in my judgment be deemed subject to the condition that if the 
 author became insane, or the painter paralytic, and so incapable 
 of performing the contract by the act of God, he would not be 
 liable personally in damages any more than his executors would be 
 if he had been prevented by death." This view, which obviously 
 commends itself in point of reason and convenience, is strongly 
 confirmed by Taylor i>, Caldwell {supra, p. 362), where indeed it 
 was recognized as correct, and it has since been established by 
 direct decisions. In Boast v. Firth (a) a master sued the father 
 of his apprentice on his covenant in the apprenticeship deed that 
 the apprentice should serve him, the plaintiff, during all the term. 
 The defense was that the apprentice was prevented from so doinu- 
 by permanent illness arising *after the making of the in- [36$ 
 denture. The Court held that "it must be taken to have been in 
 the contemplation of the parties when they entered into this cov- 
 enant that the prevention of performance by the act of God should 
 be an excuse for non-performance" (b), and that the defense was a 
 good one. In Robinson v. Davison (c) the defendant's wife, an 
 eminent pianoforte player, was engaged to play at a concert. 
 "When the time came she was disabled by illness. The giver of the 
 entertainment sued for the loss he had incurred by putting off the 
 concert, and had a verdict for a small sum under a direction to the 
 effect that the performer's illness was an excuse, but that she was 
 bound to give the plaintiff notice of it within a reasonable time. 
 The sum recovered represented the excess of the plaintiff's ex- 
 penses about giving notice of the postponement to the public and 
 to persons who had taken tickets beyond what he would have had 
 to pay if notice had been sent him by telegraph instead of by let- 
 ter. The Court of Exchequer upheld the direction on the main 
 point. The reason was thus shortly put by Bramwell, B. " Thi9 
 is a contract to perform a service which no deputy could perform, 
 and which in case of death could not be performed by the execu- 
 tors of the deceased ; and I am of opinion that by virtue of the 
 terms of the original bargain incapacity either of body or mind in 
 the performer, without default on his or her part, is an excuse for 
 non-performance" (d). The same judge also observed, in effect, 
 
 (a) L. E.4C.P.1; [ace. Dickey v. Linscott, 20 Me. 453.] 
 (J) Per Montague Smith, J., at p. 7. (c) L. E. 6 Ex. 269. 
 (d) L. K. 6 Ex. at p. 277; [Spalding v. Kosa, 71 N. Y. 40. "No action lies 
 on an agreement promising to pay for tuition for a specified time, if during the 
 27. 417 
 
*69 CHAP. VII. IMPOSSIBLE AGREEMENTS. 
 
 that the contract becornes,not voidable at the option of the party- 
 disabled from performance, but wholly void. •'Here the player 
 could not have insisted "on performing ber engagement, however 
 ineffectually that might have been" when she was really unfit to 
 perform it. The other party's right to rescind has since been es- 
 tablished by a direct decision (a). No positive opinion was ex- 
 pressed on the other point as to the duty' of giving notice. But it 
 may be taken as correct that it is the duty of the party disabled to 
 give the earliest notice that is reasonably practicable. Probably 
 notice reasonable in itself could not be required, for the disabling 
 accident may be sudden and at the last moment, and the duty must 
 .369] bo limited to cases *where notice can be of some use (6). 
 It further appears from the case that the effect of an omission of 
 this duty is that the contract remains in force for the purpose only 
 of recovering such damage as is directly referable to the omission. 
 The decision also shows, if express authority be required for it, 
 that it matters not whether' the disability be permanent or tem- 
 porary, but only whether it is such as to prevent the fulfillment of 
 the particular contract. 
 
 In the earlier and very peculiar case of Hall v. "Wright (c) the 
 ■question, after some critical discussion of the pleadings, which it is 
 needless to follow, came to this : " Is it a term in an ordinary agree- 
 ment to marry, that if a man from bodily disease can not marry 
 
 •whole of that time the promisor was prevented by illness from attending and 
 receiving the tuition; Stewart v. Loring, 5 Allen, 306. 
 
 Where in a marriage settlement the husband covenanted to insure his life on 
 or before July 2, 1875, in the names of the trustees in a given sum, and having 
 taken no steps towards effecting a policy until Julyl, 1875, shortly before which 
 date iiis health, which had previously been good, had become so bad that he was 
 unable to effect an insurance, and in September following he died, it was held 
 that "the life having become uninsurable on the 1st of July, 1875, did not re- 
 lieve the husband from the obligation to insure or pay damages, and that ac- 
 cordingly his estate was answerable in damages to the trustees of the settle- 
 ment;" Arthur v. Arthur, 14 Ch. D. 603.] 
 
 (a) Poussard u. Spiers & Pond, 1 Q. B. D. 410; [see Leopold u. Salkey, 89 
 111. 412.] 
 
 (b) Cp. the doctrine as to giving notice of abandonment to underwriters, 
 Rankin v. Potter, L. R. 6 H. L. 83, 121, 157. [Where a contract of service is 
 terminable on giving a certain number of days notice, if the servant becomes 
 incapacitated to' perform by vi mnjore, the necessity of notice is dispensed with ; 
 Fuller v. Brown, 11 Met. 440; Hughes v. Wamsutta Mills, 11 Allen, 201.] 
 
 (c) E. B. & E. 746; 29 L. J. Q. B. 43. 
 
 418 
 
PERSONAL CONTRACTS : MARRIAGE. 370 
 
 ■without danger to his life, and is unfit for marriage from the cause 
 mentioned at the time appointed, he shall be excused marrying 
 then?" (a) or in other words; "Is the continuance of health, that 
 is, of such a state of health as makes it not improper to marry," an 
 implied condition of the contract? (b) The Court of Exchequer 
 Chamber decided by four to three that it is not, the Court of Queen's 
 Bench having been equally divided. The majority of the judges 
 relied upon two reasons : that if the man could not marry without 
 -danger to bis life that did not show the performance of the eon- 
 tract to be impossible, but at most highly imprudent; and that at 
 any rate the contract could be so far performed as to give the wo- 
 man the status and social position of a wife. It was not disputed 
 that the contract was voidable at her option. " The man, though 
 he may be in a bad state of health, may nevertheless perform his 
 contract to marry the woman; and so give her the benefit of social 
 position so far as in his power, though he may be unable to fulfill 
 all the obligations of the marriage state ; and it rests with the wo- 
 man to say whether she will enforce or renounce the contract " 
 (c). As to the first of these reasons, the question is not whether 
 there is or not an absolute impossibility, but what is the true mean- 
 ing of the contract ; and in this case the contract is of such a kind 
 *that one might expect the conditions and exceptions im- [370 
 plied in strictly personal contracts to be extended rather than ex- 
 cluded. It has long been settled that the contract to marry is so 
 far personal that executors, in the absence of special damage to the 
 personal estate, can not sue upon it (d). As to the second reason, 
 it can not be maintained, except against the common understand- 
 ing of mankind and the general treatment of marriage by the law 
 of England, that the acquisition of legal or social position by mar- 
 riage is a principal or independent object of the contract. Unless 
 it can be so considered, the reason can not stand with the principle 
 .affirmed in Geipel v. Smith (e), that when the main part of a con- 
 
 («.) Per Bramwell, B. 29 L. J. Q. B. 45. 
 
 (b) Per Pollock, C. B. lb. 52. 
 
 (c) The case is thus explained and distinguished by Montague Smith, J., in 
 Boast v. Firth, L. R. 4 0. P. 8. 
 
 (d) Chamberlain v. "Williamson, 2 M. & S. 408 ; [Hovey v. Page, 55 Me. 142. 
 Nor does an action upon it survive against the personal representatives of the 
 promisor. Wade v. Kalbfleisch, 58 N. T. 282; Stebbins v. Palmer, 1 Pick. 71; 
 sSmith ■». Sherman, 4 Cush. 408; Lattimore v. Simmons, 13 S. & R. 18-3.] 
 
 (e) L. E. 7 Q. B. 404. 
 
 419 
 
371 CHAP. VII. IMPOSSIBLE AGREEMENTS. 
 
 tract has become impossible of performance by an excepted cause,, 
 it must be treated as having become impossible altogether. The- 
 decision itself can be reviewed only by a court of ultimate appeal ; 
 but it is so much against the tendency of the later cases that it is- 
 now of little or no authority beyond the point actually decided 
 which for the obvious reasons indicated in some of the judgments- 
 is not at all likely to recur. 
 
 As we saw in the case of contracts falling directly within the 
 rule in Taylor v. Caldwell, so in the case of contracts for personal 
 service and the like the dissolution of the contract by subsequent 
 impossibility does not affect any specific right already acquired un- 
 der it. Where there is an entire contract of this kind for work to- 
 be paid for by installments at certain times, any installments which- 
 have become due in the contractor's lifetime remain due to his es- 
 tate after the contract is put an end to by his death (a). In like- 
 manner where a premium has been paid for apprenticeship, and 
 the master duly instructs the apprentice for a part of the time, and. 
 then dies, his executors are not bound to return the premium or 
 any part of it as on a failure of consideration. So the Court of 
 Common Pleas lately held (b), dissenting from a decision the other- 
 way in the Court of Chancery (c), which, however, can not be taken 
 as establishing a different rule of equity, or therefore one which 
 371] under the Judicature Act must prevail. For, except *so far 
 as it can be referred to the summary jurisdiction of the court 
 over its own officers, that decision is founded on the supposition, 
 that a proportionate part of the premium was a debt at law (d). 
 
 (a) Stubbs v. Holywell Ey. Co., L. E. 2 Ex. 311. [In this country it is gen- 
 erally held that where one engaged under an entire contract for personal serv- 
 ices after part performance, is by sickness disabled from fully performing, or 
 dies, an action lies, in his favor, or his administrator's, as the case may be, to- 
 recover for the work actually performed; but as to the measure of the recov- 
 ery the cases are not harmonious ; Clarke v. Gilbert, 26 N. T. 279; Wolfe v. 
 Howes, 20 N. T. 197; Coe v. Smith, 4 Ind. 79; Hargrave v. Conroy, 19 N. J.. 
 Eq. 281 ; Fenton v. Clark, 11 Vt. 557 ; Hubbard v. Belden, 27 Vt. 645 ; Patrick 
 ■». Putnam, 27 Vt. 759; and see Lakeman v. Pollard, 43 Me. 463; Eyan v. Day- 
 ton, 25 Conn. 188; Green v. Gilbert, 21 Wis. 395. 
 
 As to sickness, which it was held plaintiff should have foreseen, and which 
 therefore did not excuse non-performance, see Jennings v. Lyon, 39 Wis. 553.}. 
 
 (b) Whincup v. Hughes, L. E. 6 C. P. 78. 
 
 (c) Hirst v. Tolson, 2 Mac. & G. 134. 
 
 (d) 2 Mac. & G. at p. 139 ; and see the judgments of Bovill, C. J., and Willes,, 
 J., in Whincup v. Hughes. 
 
 420 
 
BY SUBSEQUENT DEFAULT OF PARTY. 371 
 
 Where an existing contract is varied or superseded by a subse- 
 quent agreement, and the performance of that agreement becomes 
 impossible (e.g. by the death of a person according to whose esti- 
 mate a sum is to be assessed) so that the parties are no longer 
 Isonnd by it, they will be remitted to the original contract if their 
 intention can thereby be substantially carried out. At all events a 
 party for whose benefit the contract was varied, and who but for 
 his own delay might have performed it as varied before it became 
 •impossible, can not afterwards resist the enforcement of tbe con- 
 tract in its original form (a). 
 
 3. We now come to the case of a contract becoming impossible 
 of performance by the default of either party. 
 
 Where the promisor disables himself by his own default from 
 performing his promise, not only is he not excused (for which in- 
 deed authority would be superfluous) but his conduct is equivalent 
 to a breach of the contract, although the time for performance may 
 not have arrived, and even though in contingent circumstances it 
 may again become possible to perform it (6). A default consisting 
 in mere omission may have the same effect. Where an arbitrator 
 awards that the defendant shall pay the plaintiff's taxed costs of a 
 .suit on a certain day, it is the defendant's business to have them 
 taxed before that day, and it is no excuse that in fact he had not 
 notice of the taxation in time to pay them at the time and place 
 ■fixed by the award (c). 
 
 On the other hand, where the promisor is prevented from per- 
 forming his contract or any part of it by the default or refusal of 
 the promisee, the performance is to that extent excused (d) ; and 
 
 (a) Firth v. Midland By. Co., 20 Eq. 100. 
 
 (4) See Leake on Contracts, 351, 460 [2d ed., pp. 668, 869]; 1 Eo. Ab. 448, B.; 
 JNewcomb v. Brackett, 16 Mass. 161; Butrick v. Holden, 8 Gush. 233; Harris 
 v. "Williams, 3 Jones L. 483 ; Packer v. Steward, 34 Vt. 127.] 
 
 (c) Bigland v. Skelton, 12 East, 436. 
 
 (d) [United States v. Peck, Sup. Ct. U. S., 21 Alb. L. J. 375 ; Hammer v. 
 Breidenbach, 31 Mo. 49 ; Marshall v. Craig, 1 Bibb, 379, 386 ; Stewart v. Ketel- 
 tas, 36 N. Y. 388; Parker Vein Coal Co. v. O'Hern, 8 Md. 197; Gallaghers. 
 Nichols, 60 N. Y. 438; Wilt v. Ogden, 13 Johns. 56; Eredenburg v. Turner, 37 
 Mich. 402; Schultei?. Hennessy, 40 la. 352; Sutton v. Tyrrell, 12 Vt.79; Clear- 
 -water v. Meredith, 1 "Wall. 25, 39 ; MoKee v. Miller, 4 Blackf. 222; Ashcraft v. 
 Allen, 4 Ired. L. 96. 
 
 "One who prevents the performance of a condition, or makes it impossible 
 by his own act, can not take advantage of the non-performance :'' Navigation 
 
 421 
 
372 CHAP. VII. IMPOSSIBLE AGREEMENTS. 
 
 moreover default or refusal' is- a cause of action on -which, the 1 
 372] *promisor may recover any loss ho hasincurred thereby (a) r 
 or he may rescind the contract and recover back. any money he has- 
 already paid under it (#). iDefault may consist either in active 
 interruption or interference on the pari of the promisee (c), or in 
 the mere omission of something without which the promisor can 
 not perform his part of the contract (7/)., 
 
 The principle, in itself well settled, is illustrated by some recent 
 cases. Where the failure, of a building contractor to complete the 
 works by the day specified is caused by the failure of the other 
 parties and their architect to supply plans and set out the land nec- 
 essary to enable him to commence the works, •" the rule of law ap- 
 plies which exonerates one of the two contracting parties from the- 
 performance of a contract when the performance of it is prevented 
 and rendered impossible by the wrongful act of the other contract- 
 Co. a. Wilcox, 7 Jones L. 481; Jones v. "Walker, 13 B. Mon. 163; Camp v.. 
 Barker, 21 Vt. 469 ; Ruble v. Massey, 2 Ind. 636 ; Bright v. Taylor, 4 Sneed, 
 159.] 
 
 (a) As in the familiar ease of an action for non-acceptance of goods, for not- 
 furnishing a cargo, etc.; so with a special contract, e.g., Roberts v. Bury Com- 
 missioners, L. R. 4 C. P. 755, in Ex. Ch. 5 C. P. 310; [Black v. Woodrbw,. 
 39 Md. 194; Curtis v. Smith, 48 Vt. 116; Howley v. Smith, 45 Ind. 183, 202; 
 Kugler v. Wiseman, 20 Ohio, 361 ; Smith v. Railroad Co., 36 N. H. 458, 493.] 
 
 (b) Giles v. Edwards, 7 T. R. 181 ; [Seipel «. Insurance Co., 84 Pa. St. 47.. 
 He may rescind the contract,, and recover the value of what he has done for 
 defendant's benefit in performance of it: Greene v. Haley, 5 R. I, 260; Con- 
 nelly v. Pevoe, 37 Conn. 570; Blood v. Enos, 12 Vt. 625; Derby v. Johnson, 21 
 Vt. 17; Moulton v. Trask, 9 Met. 577; Canada v. Canada, 6 Cush. 15. 
 
 Where a person on a contract of sale covenants to pay a sum whose amount 
 is to be contingent on certain events, and is to be ascertained by arbitrators to- 
 be' selected by the parties respectively to' the contract, such person, if he pre- 
 vent' any arbitration, may be sued on a quantum valehat: Humaston v. Tele- 
 graph Co., 20 Wall. 20.] 
 
 (c) 1 Ro. Ab. 453, N. 
 
 (d) Where a condition can be performed only in the obligee's presence, his 
 absence is an excuse: 1 Ro. Ab. 457, IT, pi. 1;' [Williams v. Bank, 2 Pet. 96, 
 102; Majors v. Hickman, 2 Bibb, 217. Where the defendant agreed to allow 
 the plaintiff to dig sand on the former's land at places to be designated by the- 
 defendant: Held, that a refusal to designate a place was a breach of the con- 
 tract: Hurd v.Gill, 45 N. T. 341; Warner v. Wilson, 4 Cal. 310.] A covenant, 
 to make within a year such assurance as the covenantee's counsel shall devise- 
 is discharged if the covenantee does not tender an assurance within the year t 
 1 Ro. Ab. 446, pi. 12. 
 
 422 
 
, ALTERNATIVE CONTRACTS. 373- 
 
 ing party" (a), and tbe other party can not take advantage of <i. 
 provision in the contrapt, making it determinable at their option in 
 the event of the contractor failing in the due performance of any 
 part of his undertaking (a). So where it is a term of the contract 
 that the contractor shall pay penalties for any delay in the fulfill- 
 ment of it, no penalty becomes due in respect of any delay caused 
 by the refusal or interference of the other party (b). 
 
 In .Raymond v. Minton (c) it was pleaded to an action of cov- 
 enant against a master for not teaching his apprentice that at the 
 time of the alleged breach the apprentice would not be taught, and 
 by his own willful acts prevented the master from teaching him. 
 This was held a good plea, for "it is evident that the master can 
 not be liable for not teaching the apprentice if the apprentice will 
 not be taught." An earlier and converse *case is Ellen v. [37J- 
 Topp (d), referred to by the reporters. There a master undertook 
 to teach an apprentice several trades; it was held that on his giving 
 up one of them, and thus making the complete performance of his 
 own part of the contract impossible, the apprentice was no longer 
 bound to serve him in any. " If the master is not ready to teach 
 in the very trade which he has stipulated [promised] to teach, the 
 apprentice is not bound to serve." A case of the same sort is put 
 by Choke, J. in the Year Book, 22 Ed. 4. 26, in a case from which 
 one passage has already been given. 
 
 "If I am bound to Catesby [then another judge of the Common Pleas] 
 that my son shall serve him for seven years, and I come with my son to> 
 Catesby, and offer my son to him, and he will not take him, there becaus& 
 there is no default on my part I shall not forfeit the bond. In like man- 
 ner if he took my son and afterwards within the term sent him away, it 
 is .unreasonable that this should be a forfeiture." 
 
 Where a contract is in the alternative to do one of two things at 
 the promisor's option, and one of them is impossible, the promisor 
 is bound to perform that which is possible (e). We find the rule- 
 fa) Boberts v. Bury Commissioners, L. E. 5 C. P. 310, 329; [McAndrews v. 
 Tippett, 39 N. J. L. 105.] 
 
 (b) Holme v. Guppy, 3 M. & "W. 387; Russell v. Da Bandeira, 13 C. B. N.S. 
 149 ; 32 L. J. C. P. 68. 
 
 (c) L. E. 1 Ex. 244. 
 
 (d) 6 Ex. 424, 442; 20 L. J. Ex. 241 ; [see McGrath *. Herndon, 4 T. B. Mon. 
 480.] 
 
 (e) Da Costa «. Davis, 1 B. & P. 242. 
 
 423 
 
374 CHAP. VII. IMPOSSIBLE AGREEMENTS. 
 
 clearly stated in the Digest (a). Where one of two things con- 
 tracted for in the alternative subsequently becomes impossible, it is 
 a question of construction for which no positive rule can be laid 
 ■down, whether according to the true intention of the parties the 
 promisor must perform the alternative which remains possible, or 
 is altogether discharged (b). It was held, indeed, in Laughter's 
 •ciise (c) that where the condition of a bond is for either of two 
 things to be done by the obligor, and one of them becomes impos- 
 sible by the act of God, he. is not bound "jo perform the other. But 
 this is to be accounted for by the peculiar treatment of bonds of 
 which we shall speak presently, the right of election being part of 
 the benefit of the condition, of which the obligor is not to be de- 
 prived. And even as to bonds the general proposition has been 
 -denied (6). In the absence of any thing to show the intention in 
 374} the particular case, *the presumption should surely be the 
 other way, namely that the promisor should lose his election rather 
 than the promisee lose the whole benefit of the contract (d). 
 Where either the promisor or the promisee, having the right under 
 a contact to choose which of two things shall be done, chooses one 
 which becomes impossible after the choice is determined, there (on 
 authority as well as principle) it is the same as if there had been 
 from the first a single unconditional contract to do that thing (e). 
 In Roman law the presumption seems distinctly in favor of the 
 promisor remaining bound to do what is possible (/) ; otherwise it 
 agrees with ours (g). 
 
 (a) Si ita stipulatus fuero : tesisti; nisi steteris, hippocentaitrum dari ? proinde 
 erit atque te sisti solummodo stipulatus essem. D. 45. 1. de v. o. 97 pr. 
 
 (b) Barkworth v. Young, 4 Drew. 1, 25. And see Leake, 372-3 ; [2d ed. 716, 
 sqq.] 
 
 (c) 5 Co. Rep. 216. (d) [Jacquinet ». Boutron, 19 La. Ann. 30.] 
 (e) Brown v. Royal Insurance Co., p. 357 above. 
 
 (/) Save that in the case of an alternative obligation to deliver specific ob- 
 jects at the promisor's election he still has an election in solutione, as it is said, 
 i.e, he may at his option pay the value of that which has perished. See Van- 
 gerow, Pand. § 569, note 2 (3. 22 sqq.) where the subject is fully worked out. 
 
 (g) Papiniau says ; Stichum aut Pamphilum, utrwm ego velim, dare spondes? 
 altero mortuo, qui vivit solus petetur, nisisi mora facta sit in eo mortuo, quem 
 petitor elegit; tunc enim perinde solus ille qui deoessit praebetur ac si solus in 
 obligation em deductus fuisset. Quod. si promissoris fuerit electio, defuncto al- 
 tero (i.e., before election made), qui superest aeque peti potest. D. 46. 3. de solut. 
 et lib. 95 pr. He proceeds to this curious question : What if one dies by the 
 424 
 
IMPOSSIBLE CONDITIONS. 375 
 
 The exception as to mora in the extract given in the note shows 
 "the application here of the general rale as to impossibility caused 
 by acts of the parties. The case put is that the creditor has made 
 his election (to have Stichus, suppose) but has neglected or refused 
 to accept Stichus : now if Stichus dies he can not demand Pamphi- 
 lus. It is the same as if there had been a single promise, and the 
 performance made impossible by the promisee's default. The same 
 rule is given in another passage (<x). 
 
 There is yet something to be said of the treatment of conditional 
 ■contracts where the condition is or becomes impossible. A con- 
 dition may be defined for the present purpose as an agreement or 
 term of an agreement whereby the existence of a *contract [375 
 is made to depend on a future contingent event assigned by the will 
 of the. parties (6). 
 
 The condition may be either that an event shall or that it shall 
 not happen, and is called positive or negative accordingly. Now 
 the event which is the subject-matter of the condition, instead 
 of being really contingent, may be necessary or impossible, in 
 itself or in law. But the negation of a necessary event. is im- 
 possible and the negation of an impossible event is necessary. 
 It therefore depends further on the positive or negative character 
 -of the contingency whether the condition itself is necessary or im- 
 possible. 
 
 Thus we may have conditional promises with conditions of these 
 kinds : 
 
 Necessary : 
 
 (a) By affirmation of a necessity. As a promise to pay 100/., " if 
 the sun shall rise to-morrow." 
 
 (yS) By negation of an impossibility: " If J. S. does not climb 
 
 ■debtor's default before election made, and afterwards the other dies without his 
 default 7 No action can be maintained on the stipulation, but there is a rem- 
 edy by doli actio. 
 
 (a) Stipulatus sum Damam aut Erotem servum dari, cum Damam dares, ego 
 .quominus acoiperem in mora fui; mortuus est Dama; an putes me ex stipulatu 
 actionem habere? Bespondit, secundum Massurii Sabini opinionem puto te ex 
 stipulatu agere non posse ; nam is recte existimabat, si per debitorem mora non 
 ■esset, quominus id quod debebat solveret, continuo earn debito liberari. D. 45, 
 1. de v. o. 105. 
 
 (b) Savigny, Syst. g 116 (3. 121); Pothier, Obi. § 199; [2 Langdell Sel. Ca. 
 •Cont. 999, tit. Conditions]. 
 
 425 
 
37(J CHAP. VII. , IMPOSSIBLE AGREEMENTS. 
 
 to the moon," or " if my executor does not sue for my debt, to 
 lira." 
 
 Impossible : 
 
 , (y) By affirmation of an impossibility : " If J. S. shall climb to 
 the moon," or "if J. S. shall create a new manor." 
 
 (3). By negation of a necessity: " If the sun shall not rise to- 
 morrow," or " if my personal estate shall not be liable to pay my 
 debts" (a). 
 
 It is obvious that as a matter of logical construction the forms 
 (a) and (/?) are equivalent to unconditional promises, (j) and (§) to- 
 impossible or nugatory promises. And so we find it dealt with by 
 the .Roman law (&). It is equally obvious that (still as a matter of 
 logical construction) there is nothing to prevent the condition from 
 having its regular effect if the event is or becomes impossible in 
 fact. .For example, "if A. shall dig 1000 tons of clay on B's land 
 in every year for the. next seven years " ; here there may not be so- 
 3?tt] much clay to be dug, or A. may die in the *first year. But. 
 a, promise so conditioned is perfectly consistent and intelligible^ 
 without importing any further qualification into it; and it would 
 obviously be more difficult to come to the conclusion that some fur- 
 ther qualification is to be understood than in the case of a direct 
 and unconditioned contract by A. himself to dig so much clay. 
 
 Direct covenants or promises dependent on express conditions- 
 must be construed with reference to these general principles; be- 
 yond this no rule can be given except that it is never to be forgot- 
 ten that the object of judicial construction is to ascertain and give- 
 effect to the real meaning of the parties (c). 
 
 Practically the discussion in our books of conditions and their 
 effect on the legal transactions into which they enter is limited to- 
 tke following sorts of questions : 
 
 1. What contracts are really conditional, or in technical language,, 
 ■what amounts to a condition precedent (d) : 
 
 (a) Slightly modified from Savigny, Syst. § 121 (3. 156, 158). 
 
 (b) " Si impossibilis conditio obligationibus adiciatur, nihil valet stipulation 
 Impossibilis autem conditio habetur, cui natura impedimenta est quo minus ex- 
 istat, veluti si quis ita dixerit: Si digito caelum attigero, dare spondes? At si 
 Ha strpuletur: Si digito caelum non attigero, dare spondes? pure facta obligation 
 intelligitur ideoque statim petere potest." I. 3. 19. de inut. stipul. § 11. 
 
 (c) See per Marfra, B., ia Bradford v. Williams, L. E. 7 Ex. at p. 259. 
 
 (d) The classical authority on this topic is Serjeant "Williams' note to Pord- 
 age v. Cole, 1 Wins. Saund. 550; see also notes to Cutter v. Powell, 2 Sm. L. C. ;. 
 
 426 
 
BONDS WITH IMPOSSIBLE CONDITIONS. 377 
 
 2. The effect of conditions and conditional limitations in convey- 
 ances at common law and under the Statute of Uses (which topics 
 are obviously beyond our present scope) : 
 
 3. The effect of conditions in bonds. This form of contract, us 
 we need hardly say, is now gone out of use except for certain special 
 purposes, but was formerly general, insomuch that almost all the 
 older learning on the construction and performance of contracts is 
 to be found under the head of conditions. Here there are some pe- 
 culiarities which call for our attention in this place. 
 
 So far as the form goes, a bond is a contract dependent on a neg- 
 ative condition. In the first instance the obligor, professes to be 
 bound to the obligee in a sum of a certain amount. Then follows 
 the condition, showing that if a certain event happens (generally 
 something to be done by the obligor) the bond shall be void, but 
 otherwise it shall remain in force. " The condition is subsequent 
 to the legal obligation ; if the condition bo not fulfilled the obliga- 
 tion remains" (a). This is in terms a promise, *stated in a [377 
 singularly involved way, to pay a sum of money if the event 
 mentioned in the condition does not happen. But this, as every- 
 body knows, is not the true nature of the contract. The object is 
 to secure the performance of the condition, and the real meaning 
 of the parties is that the obligor contracts to perform it under the 
 conventional sanction of a penal sum. This view is fully recog- 
 nized by the modern statutes regulating actions on bonds, by 
 which the penalty is treated as a mere security for the performance 
 of the contract or the payment of damages in default (b). On 
 principle, therefore, a bond with an impossible condition, or a con- 
 dition which becomes impossible, should be dealt with just as if it 
 were a direct covenant to perform that which is or becomes im- 
 possible. In the former case the bond should be void, in the latter 
 the rule in Taylor v. Caldwell (c) would determine whether it 
 were avoided or not. We have seen that where the condition is- 
 illegal our courts have found no difficulty in considering the bond 
 as what in truth it is, an agreement to do the illegal act. But in 
 
 [and see particularly the Summary of Prof. Langdell, title Dependent and In- 
 dependent Covenants and Promises, 2 Langdell Sel. Ca. Cont., 2d ed. 1043- 
 1069.] 
 
 (a) Sir W. W. Follett, arg. Beswicjj v. Swindells, 3 A. & B. 875. 
 
 (b) As to these see Preston o. Dania, L. K. 8 Ex. 19. 
 
 (c) 3 B. & S. 826, supra, p. 362. 
 
 427 
 
"378 CHAP. VII. IMPOSSIBLE AQBBEMBNTS. 
 
 the case of impossibility the law has stuek at the merely formal 
 -view of a bond as a contract to pay the penal sum, subject to be- 
 avoided by the performance of the condition : accordingly if the ; 
 condition is impossible either in itself or in law the obligation re- 
 mains absolute. 
 
 " If a man be bound in an obligation, &c, with condition that 
 if the obligor do go from the church of St. Peter in Westminster 
 to the church of St. Peter in Eome within three hours, that then 
 the obligation shall be void. The condition is void and impossible 
 and the obligation standeth good." So, again, if the condition is 
 against a maxim or rule in law, as " if a man be bound with a con- 
 dition to enfeoff his wife, the condition is void and against law, 
 because it is against the maxim in law, and yet the bond is 
 good " (a). 
 
 In the same way, " when the condition of an obligation is so in- 
 sensible and incertain that the meaning can not be known, there 
 the condition only is void and the obligation good" (b). 
 
 On the point of subsequent impossibility, however, the strictly 
 formal view is abandoned, and an opposite result arrived at, but 
 378] *still in an artificial way. The condition, it is said, is for 
 the benefit of the obligor, and the performance thereof shall save 
 the bond ; therefore he shall not lose the benefit of it by the act 
 of God (c), and where the condition is possible at the date of the 
 instrument " and before the same can be performed the condition 
 becomes impossible by the act of God, or of the law, or of the 
 obligee, there the obligation is saved " (<2), or as another book has it, 
 
 (a) Co. Lit. 2066 (some of the &c.'s in Coke's text are omitted). To the same 
 effect Shepp. Touchst. 372. 
 
 (A) Shepp. Touchst. 373. 
 
 (c) This reasoning appears both in Laughter's ca., 5 Co. Rep. 21J, and Lamb's 
 ca., lb. 234. 
 
 (</) Co. Litt. 206a.; [Taylor v. Taintor, 16 Wall. 366, 369; Brown v. Dille- 
 hanty, 4 S. & M. 713; People v. Bartlett, 3 Hill, 570; Badlam v. Tucker, 1 Pick. 
 284; People v. Manning, 8 Cow. 297; Blake v. Hiles, 13 N. H. 459; Whitney v. 
 . Spencer, 4 Cow. 39 ; Scully v. Kirkpatrick, 79 Pa. St. 324, 331 ; Marshall v. 
 Craig, 1 Bibb, 386, 390. 
 
 When a person arrested in one state on a criminal charge and released under 
 his own and his bail's recognizance that he will appear on a day fixed, and abide 
 the order and judgment of the court, on process from which he has been ar- 
 rested, goes into another state, and while there is, on the requisition of the gov- 
 ernor of a third state, for a crime committed in it, delivered up, and is con- 
 victed and imprisoned in such third state, the condition of the recognizance 
 428 
 
BONDS WITH IMPOSSIBLE CONDITIONS. 37S : 
 
 "the obligation and the condition both are become void" ^«.). 
 " Generally if a condition that was possible when made is become- 
 impossible by the act of God, the obligation is discharged" (b). 
 As to the acts of the law and of the obligee this agrees with the 
 doctrine of contracts in general : as to inevitable accident it estab- 
 lishes a different rule. The decision in Laughter's case (supra, p. 
 373) was an application of the same view, and it therefore appears 
 that there should never have been any question of extending it to 
 direct covenants or contracts. 
 
 The peculiar law thus laid down is distinctly recognized by 
 modern authorities (c). However, if a bond appears on the face 
 of it to be given to secure the performance of an agreement which 
 it recites, the condition will take effect according to the true in- 
 tention of the agreement rather than the technical construction 
 resulting from the form of the instrument (d). 
 
 Alternative conditions, at any rate as to immediate impossibility, 
 and conditions made impossible by the default of the parties, or 
 otherwise than by the " act of God," are treated in the same way 
 as direct promises (e). 
 
 has not become impossible by act of law so as to discbarge the bail; " the law 
 which renders the performance impossible, and therefore excuses failure, must- 
 be a law operative in the state where the obligation was assumed, and obligatory 
 in its effect upon her authorities." Taylor v. Taintor., 16 Wall. 366; S. 0., 36 
 Conn. 242, and see Cain v. State, 55 Ala. 170; United States v. Van JTossen, 1 
 Dill. 406; Devine v. State, 5 Sneed, 623; "Withrow v. Commonwealth, 1 
 Bush, 17. 
 
 Subsequent conviction and imprisonment in the same state, or delivery by 
 the govornor thereof on requisition of the governor of another state, has been 
 held such an act of the law as discharges the bail from liability ; State v. Allen, 
 2 Humph. 258 ; Caldwell's case, 14 Gratt. 698 ; People v. Bartlett, 3 Hill, 570; 
 State v. Adams, 3 Head, 259 ; Fuller v. Davis, 1 Gray, 612 ; Way v. "Wright, 5 
 Met. 380; but see Mix v. People, 26 111. 32 ; Ingram v. State, 27 Ala. 17.] 
 
 (a) Shepp. Touchst. 372. 
 
 (b) Eo. Ab. 1. 449, G, pi. 1 ; repeated on p. 451, I, pi. 1. 
 
 (c) 1 Wins. Saund. 238; per Williams, J., Brown v. Mayor of London, 9 C. 
 B. H". S. 726, 747 ; 30 L. J. C. P. 225, 230. 
 
 (d) Beswick v. Swindells, Ex. Ch. 3 A. & K. 868. 
 
 le) ["The rule of law is that where the condition of a bond is to do one of 
 two things, if one can not be performed, unless it has become impossible by the- 
 act of the obligee, the obligor is bound to perform the other ; " Mill Dam Foun- 
 dry v. Hovey, 21 Pick. 417, 443.] 
 
 ' 429 
 
379 CUAV. VII. IMPOSSIBLE AGREEMENTS. 
 
 " Whfen a condition becomes impossible by the act of the obligor, such. 
 impossibility forms no answer to an action on the bond" (a). 
 
 "When the condition of an .obligation is to do two things by a da.y t 
 and at the time of making the obligation both of them are possible, but 
 after, and before the time when the same are to be done, one of the 
 379] things is become impossible by the act of God, or *by the sole, act 
 and laches of the obligee himself ; in this case the obligor is not bound 
 to do the other thing that is possible, but is discharged of the whole obli- 
 gation. But if at the time of making of the obligation one of the things 
 is and the other of the things is not possible to be done, he must per- 
 form that which is possible. And if in the first case one of the things 
 become impossible afterwards by the act of the obligor or a stranger, 
 the obligor must see that he do the other thing at his peril." " If the con- 
 dition be that A. shall marry B. by a day, and before the day the obligor 
 himself doth marry her: in this case the condition is broken. But if the 
 obligee marry her before the day, the obligation is discharged " (6). 
 
 "If a man is bound to me in 201. on condition that he pay me 101., in 
 that case if he tender me the money and I refuse, he is altogether ex- 
 cused from the obligation, because the default is on my part who am the 
 -obligee" (c). 
 
 We subjoin the provisions of the Indian Contract Act on the sub- 
 ject of this chapter. It will be seen that simplicity is gained at 
 the expense of considerable departure from the principles of En- 
 glish law, and perhaps also at" the expense of definiteness on some 
 points. The most important change is the extension of the prin- 
 ciple of Taylor v. Caldwell so as to make it an implied condition in 
 all contracts that the performance shall remain possible. 
 
 53. When a contract contains reciprocal promises and one party to the 
 ■ contract prevents the other from performing his promise, the contract be- 
 comes voidable at the option of the party so prevented; and he is entitled 
 
 (a) Per Cur. Beswick v. Swindells, 3 A. & E. at p. 883 ; [When a bond- is 
 executed with a condition that it shall become absolute in case certain services 
 are performed by the obligee within a specified time, the refusal of the obligor 
 to accept performance will have the effect of actual performance, so far as to 
 give the obligee a right of action upon the bond. Boardman v. Keeler, 21 Vt. 
 77; Taskeru. JBartlett, 5 Cush. 359.] ' 
 
 (6) Shepp. Touchst. 382, 392. And see pp. 393-4. 
 
 (c) Brian, 0. J., 22 Ed. 4. 26. [" If the conditions of a bond are impossibfe 
 when it is made the bond is single. If, of two conditions, one is impossible 
 when it is made, the other must be performed. A condition is' not impossible 
 if it may be performed by the concurrence of the obligee, and, in such case, if 
 the obligee neglect or refuse to act, the condition is waived; " Pindar v. Upton, 
 -44 N. H.,358.] 
 430 
 
INDIAN CONTRACT ACT. 3CO 
 
 -to compensation from the other party for any loss which he may sustain 
 in consequence of the non-performance of the contract. 
 
 Illustration. 
 
 A. and B. contract that B. shall execute certain work for A. for a thous- 
 and rupees. B. is ready and willing to execute the work accordingly, but 
 A. prevents him from doing so. The contract is voidable at the option of 
 B. ; and if he elects to rescind it, he is entitled to recover from A. com- 
 pensation for any loss which he has incurred by its non-performance. 
 
 56. An agreement to do an act impossible in itself is void. 
 
 A contract to do an act which after the contract is made becomes 
 impossible, or by reason of some event which the promisor could nob 
 ♦prevent, unlawful, becomes void when the act becomes impossible [380 
 or unlawful. 
 
 Where one person has promised to do something which he knew or, 
 with reasonable diligence, might have known, and which the promisee 
 did not know to be impossible or unlawful, such promisor must make 
 •compensation to such promisee for any loss which such promisee sustains 
 through the non-performance of the promise (a). 
 
 Illustrations. 
 
 a. A. agrees with B. to discover treasure by magic. The agreement 
 is void. 
 
 b. A. and B. agree to marry each other. Before the time fixed for the 
 marriage A. goes mad. The contract becomes void. 
 
 <,-. A. contracts to marry B., being already married to C. and being for- 
 bidden by the law to which he is subject to practice polygamy. A. must 
 make compensation to B. for loss caused to her by the non-performance 
 of his promise. 
 
 d. A. contracts to take in cargo for B. at a foreign port. A.'s Govern- 
 ment afterwards declares war against the country in which the port is 
 situated. The contract becomes void when war is declared. [This illus- 
 tration=Esposito v. Bowden, 7 E. & B. 763; 27 L. J. Q. B. 17; supra, p. 282.] 
 
 e. A. contracts to act at a theater for six months in consideration of a, 
 sum paid in advance by B. On several occasions A. is too ill to act. The 
 contract on these occasions becomes void. [Robinson v. Davison, supra, 
 p. 368. Qu. whether under s. 65 A. would not be bound to return a pro- 
 portionate part of the payment: though English law is otherwise.] 
 
 67. If any promisee neglects or refuses to afford the promisor reason- 
 
 (a) As this is hardly applicable to a promise impossible in the nature of 
 things, it seems that the general enactment in the first paragraph of the sec- 
 tion must include cases of what we have called impossibility in fact. 
 
 431 
 
380 CHAP. VII. IMPOSSIBLE AGREEMENTS. 
 
 able facilities for the performance of his promise, the promisor is excused? 
 by such neglect or refusal as to any non-performance caused thereby. 
 
 Illustration. 
 
 A. contracts with B. to repair B.'s house. B. neglects or refuses to 
 point out to A. the place in which his house requires repair. 
 
 B. is excused for the non-performance of the contract, if it is caused 
 by such neglect or refusal. 
 
 Compare also Chapter III. of the Act, "On Contingent Contracts,"" 
 68. 31-36. 
 432 
 
OP MISTAKE IN GENERAL. 381, 332.' 
 
 ♦CHAPTER VIIT [3M 
 
 MISTAKE. 
 
 Part I. — Of Mistake in General. 
 
 ElTFA-'jl 10 we have been dealing with perfectly general condi- 
 tions foe ihe formation or subsistence of a valid contract, and as a. 
 C0Dsequr/Ece of this the rules of law we have had occasion to ex- 
 plain are for the most part collateral or even paramount to the actual 
 intention or belief of the parties. Exceptions to this do certainly 
 occur, but chiefly where (as in great part of the doctrine of Impos- 
 sibility) the rules are in truth reducible to rules of construction. 
 We have had before us, on the whole, the purely objective condi- 
 tions of contract ; the questions which must be answered before the 
 law can so much as think of giving effect to the consent of the 
 parties. We now come to a set of conditions which by comparison; 
 with the foregoing ones may fairly be called subjective. The con- 
 sent of the parties is now the central point of the inquiry, and our 
 task is to examine how the legal validity of an agreement is- 
 affected when the consent or apparent consent is determined by 
 certain causes. 
 
 The existence of consent is ascertained in the first instance by the 
 rules and considerations set forth in our opening chapter. When, 
 the requirements there stated are satisfied by a proposal duly ac- 
 cepted, there is prima facie a good agreement, and the mutual com- 
 munications of the parties are taken as the expression of a valid 
 consent. But we still require other conditions in order to make the 
 consent binding on him who gives it, although their absence is in 
 general not to be assumed, and the party seeking to enforce a con- 
 tract is not expected to give affirmative *proof that they have [382 
 been satisfied. Not only must there be consent but the consent 
 must be true, full, and free. 
 
 The reality and completeness of consent may be affected (a) by 
 
 (a) It is quite wrong, as Savigny has shown, to say that a consent determined 
 by mistake, fraud, or coercion is no consent. Syst. §j! 114, 135 (3. 98 sqq.) If it 
 were so the agreement would be absolutely void in all cases : a reduetio ad ab- 
 28 433 
 
•883 CHAP. YHI. MISTAKE., 
 
 ignorance, that is, by wrong belief or mere absence of information 
 •or belief as to some fact material to the agreement. Freedom of 
 •consent may be affected by fear or by the consenting party being, 
 though not in bodily or immediate fear, yet so much under the 
 other's power, or in dependence on him, as not to be in a position 
 to exercise his own deliberate choice. Nowthe results are entirely 
 different according as these states of mind are or are not due to the 
 conduct of the other party (or, in certain cases, to a relation be- 
 tween the parties independent of the particular occasion). When 
 they are so, the legal aspect of the case is altogether changed, and 
 we look to that other party's conduct or position rather than to the 
 state of mind induced by it. We speak not of Mistakes induced 
 by Fraud, but of Fraud simply as a ground for avoiding contracts, 
 though there can be no Fraud where there is no Mistake. We 
 .have then the following combinations : 
 
 A. Ignorance. 
 
 a. Not caused by act (a) of other party 
 
 is referred in law to the head of Mistake. 
 
 Caused by act (a) of other party 
 
 b. without wrongful intention. Misrepresentation. 
 
 c. with wrongful intention. Fraud. 
 
 B. Fear, or dependence 
 excluding freedom of action. . 
 
 Not caused by acts of other 
 party or relation between (Immaterial.) 
 
 the parties. 
 
 D. Caused by such acts. Duress or Coercion. 
 
 E. By such relation. Undue influence. 
 The legal consequences of these states of things are exceedingly 
 
 various. 
 
 383] *a. Mistake does not of itself affect the validity of con- 
 tracts at all (b). But mistake may be such as to prevent any real 
 agreement from being formed ; in which case the agreement is void 
 both at law and in equity; or mistake may occur in the expression 
 of a real agreement ; in which case, subject to rules of evidence, 
 
 surdum which is no less complete for English than for Rojnah law. See per 
 Lord Oran worth, Boyse v. Rossborough, 6 H. L. C. at' p. 44, and per Lord 
 Chelmsford, Oakes v. Turquand, L. R. 2 H. L. at p. 349. " : 
 
 (a) It will be seen hereafter that omissions are equivalent to acts' for this 
 purpose in certain exceptional cases. 
 
 (b) Just as fear, merely as a state of mind in the party, is in itself immaterial. 
 As Fear is to Coercion, so is Mistake to Fraud. Sav. SSyst. 3. 116. 
 
 434 
 
OF MISTAKE IN GENERAL. 384 
 
 the mistake can be rectified. ■ The jurisdiction to do this is pecu- 
 liar to equity. There are also certain rules in the construction of 
 •contracts which are peculiar to equity, and are founded on the as- 
 sumption that the expressions used do not correspond to the real 
 intention (a). 
 
 b. Contracts induced by misrepresentation are not void. To a 
 certain extent at law, and to a considerable extent in equity, they 
 are voidable at the option of the party misled. 
 
 c. Contracts induced by fraud are not void, but voidable both at 
 law and in equity at the option of the party deceived. 
 
 d. e. Contracts entered into under coercion or undue influence 
 -are not void. If induced by direct personal coercion, they are 
 voidable at law as well as inequity ; if by other forms of compul- 
 sion or undue influence, in equity only, by the party on whom co- 
 ercion or undue' influence is exercised. 
 
 These subjects have now to be considered in order. And first of 
 Mistake. 
 
 The whole topic is surrounded with a great deal of confusion in 
 Our books, though on the whole of a verbal kind, and more embar- 
 rassing to students than to practitioners. Exactly the same kind of 
 confusion prevailed in the civil law (whence indeed some of it has 
 passed on to our own) nntil Savigny cleared it up in the masterly 
 essay which forms the Appendix to the third volume of his Sys- 
 tem. The principles there established by him have been fully 
 adopted by later writers (&). They appear to be in the main ap- 
 plicable to the law of England, and we shall *aceordingly [384 
 be guided by them. In arrangement and detail, however, we shall 
 consult the convenience of English practice and of our present 
 .special purpose. 
 
 The difficulties which have arisen as well with us as in the civil 
 law may be accounted for under the following heads : 
 
 (1.) Confusion of proximate with remote causes of legal conse- 
 quences ; in other words, of cases where mistake has legal results 
 of its own with cases where it determines the presence of some 
 
 (as) Causes and matters for (inter alia) the rectification or setting aside, or 
 cancellation of deeds or other written instruments arq assigned to the Chancery 
 Division by s. 34 of the Supreme Court of Judicature Act, 1873. 
 
 (b) Some of his conjectural dealings with specific ano.malies in the Koman 
 texts are at least daring, but this does not concern English students. Vange- 
 row gives the general doctrine (Paud. \ 83, 1. 116 sqq.) and. its special applica- 
 tion to contract (lb. \ 604, 3. 275) in a compact and useful form. 
 
 435 
 
385 OHAP. VIII. MISTAKE. 
 
 other condition from which legal results follow, or the absence of 
 some other condition from which legal results would follow, or even- 
 where it is absolutely irrelevant. 
 
 (2.) The assertion of propositions as general rules which ought 
 to be taken with reference only to particular effects of mistake in 
 particular classes of cases. Such are. the maxim Non videntur qui 
 errant consentire and other similar expressions,.and to some extent- 
 the distinction between ignorance of fact and of law (a). 
 
 (3.) Omission to assign an exact meaning to the term " ignorance 
 of law " in those cases where the distinction between ignorance of 
 law and ignorance of fact is material (the true rule, affirmed for the 
 Roman law by Savigny, and in a slightly different form for Eng- 
 lish law by Lord Westbury (b), being that " ignorance of law " 
 means only ignorance of a general rule of law, not ignorance of a 
 right depending on questions of mixed law and fact, or on the true- 
 construction of a particular instrument). 
 
 It is needless to point out in detail how these influences have op- 
 erated on our books and even on judicial expressions of the law. 
 We rather proceed to deal with the matter affirmatively on that- 
 which appears to us its true footing. 
 
 A. Mistake in general. 
 
 The general rule of private law is that mistake as such has no 
 legal effects at all. This may be more definitely expressed as fol- 
 lows : 
 
 Where an act is done under a mistake, the mistake does not 
 either add any thing to or take away any thing from the legal 
 consequences of such act either as regards any right of other 
 385] ^persons or any liability of the person doing it, nor does it- 
 produce any special consequences of its own ; 
 
 unless knowledge of something which the mistake prevents from 
 being known, or an intention necessarily depending on such 
 knowledge, be from the nature of the particular act a condition 
 precedent to the arising of some right or duty under it. 
 
 Special exceptions to the rule exist, but even these are founded, 
 on special reasons beside, though connected with, the mistake itself. 
 
 There are abundant examples to show the truth of this propo- 
 sition in both its branches. 
 
 (a) See Savigny's Appendix, Nos. VII., VIII. Syst. 3. 342, 344. 
 (6) Cooper v. Phibbs, L. E. 2 H. L. at p. 170: to which the dicta in the later 
 case of Earl Beauchamp v. "Winn, L. K. 6 H. L. 223, really add little or nothing. 
 436 
 
WHEN INOPERATIVE. 386 
 
 First, mistake is in general inoperative as to the legal position or 
 liability of the party doing an act. "We must premise that a large 
 -class of cases is altogether outside this question, as appears by the 
 •qualification with which the rule has just been stated; those, 
 namely, where a liability attaches not to the doing of an act in it- 
 «elf, but to the doing of it knowingly. There, if the act is done 
 without knowledge, the offense or wrong is not committed, and no 
 liability arises. It is not that ignorance is an excuse for the wrong- 
 ful act, but that there is no wrongful act at all. 
 
 The wider question how far and under what conditions ignorance 
 •of fact excludes criminal liability must also be put aside as beyond 
 •the scope of this work, and too important to be discussed incident- 
 ally (a). 
 
 It is certain that ignorace is, as a rule, no excuse as regards the 
 liabilities of a quasi -criminal kind which arise under penal stat- 
 utes (b) or such as are purely civil. Thus ignorance of the real 
 ■ownership of property is no defense to an action of trover, except 
 for carriers and a few other classes of persons exercising public 
 employments of a like nature, who by the necessity of the case are 
 ^specially privileged (c). Again, railway companies and other em- 
 ployers have, in many cases, been held liable for acts of their ser- 
 vants done as in the exercise of their regular employment, and 
 without any unlawful intention, but in truth unlawful *by [386 
 reason of a mistake on the part of the servant; the act being one 
 ■which, if the state of circumstances supposed by him did exist, 
 would be within the scope of his lawful authority (d). Of course 
 the servant himself-is equally liable. Here, indeed, it looks at first 
 sight as if the mistake gave rise to the employer's liability. For 
 
 (a) See. Stephens' Digest of Criminal Law, Art. 34, Beg. v. Prince, L. E. 2 
 O. C. K. 154. 
 
 (§) That ignorance can not be pleaded in discharge of statutory penalties, 
 see Carter v. McLaren, L. E. 2 Sc. & D. 125-6. 
 
 (c) Fowler v. Hollins, Ex. Ch., L. E. 7 Q. B. 616, affd. in H. L. nom. Hollins 
 v. Fowler, L. K. 7 H. L. 757; [Cochran v. Eymill, 27 W. E. 776; 8 Eep. 319; 
 Hoffman v. Carow, 22 Wend. 285 ; Coles v. Clark, 3 Cush. 399 ; Eogers v. Skip- 
 •worth, 23 Ind. 311 ; Pease v. Smith, 61 N. Y. 477; Courtis v. Cane, 32 Vt. 232; 
 Eogers v. Huje, 1 Cal. 429 ; Koch v. Branch, 44 Mo. 542.] 
 
 (tf) See the distinction explained and illustrated by Poulton v. L. & S. W. E. 
 Co., L. E. 2 Q. B. 534, and several later cases: the last are Bayley v. Manches- 
 ter, &c, Ey. Co., Ex. Ch. L. E. 8 C. P. 148 (employer liable) ; Bolingbroke v. 
 Swindon Local Board, L. E. 9 C. P. 575 (employer not liable). 
 
 437 
 
387 CHAP. VIII. MISTAKE. 
 
 the act, if done with knowledge of the facts, and so merely wrong- 
 ful in intention as well as in effect, would no more charge the em- 
 ployer than if done by a stranger. But it is not that mistake has 
 any special effect, but that knowledge, where it exists, takes the- 
 thipg done out of the class of authorized acts. The servant who- 
 eommits a willful and gratuitous (a) wrong (or goes out of his way 
 to do something which if the facts were as he thought might be- 
 lawful or even laudable, but which he has no charge to do) is no 
 longer about his master's business. 
 
 Beal exceptions are the following. An officer of a court who has 
 quasi-judicial duties to perform, such as those ; of -a trustee in bank^ 
 ruptcy, is not personally answerable for money paid by him under 
 an excusable misapprehension of the law (&). Also an officer who- 
 in a merely ministerial capacity executes a process apparently reg- 
 ular, and in some cases a person who pays money under compul- 
 sion of such process, not knowing the want of jurisdiction, is pro 1 - 
 tected, as it is but reasonable that he should be (c). But this special 
 exception is confined within narrow bounds. Mistake as to ex- 
 traneous facts, such as the legal character of persons or the owner- 
 ship of goods, is no excuse. It is a well established rule of law that 
 if by process a sheriff is desired to seize the goods of A. and he 
 takes those of B. he is liable in trover (d). A sheriff seized under 
 a ft. fa. goods supposed to belong to the debtor by marital right. 
 Afterwards the supposed wife discovered that when she went 
 387] through the ^ceremony of marriage the man had another 
 wife living: consequently she was still the sole owner of the goods, 
 when they were seized. Thereupon she brought trover against the 
 
 (a) A willful trespass which is not gratuitous, but done in the course of em- 
 ployment and for the master's intended benefit, though without or against or- 
 ders, may make the master liable: as in Limpus v. London General Omnibus- 
 Co. (Ex. Cb.), 1 H. & 0. 526; 32 L. J. Ex. 34; [Cohens. Railroad Co., 69 N. Y. 
 170; Howes. Newmarch, 12 Allen, 49; Railroad Co. ■». Young, 21 O. S. 518,. 
 524-5.] 
 
 (b) Ex parte Ogle, 8 Ch. 711. 
 
 («) See Mayor of London v. Cox, L. R. 2 H. L. at p. 269. [That payment by 
 a garnishee of a judgment against him void for want of jurisdiction' is no pro- 
 tection against an action for the same debt by the attachment defendant, see 
 Stimpson v. Maiden, 109 Mass. 313; Richardson v. Hickman, 22 Ind. 244; Har- 
 :, on ii. Birchard, 8 Blackf. 418; Ford v. Hurd, 4 S. & M. 683; Lorings. Folger, 
 7 Gray, 505.] 
 
 Id) Glasspooles. Young, 9 B. & C. 696, 700; «p. Garland ». Carlisle., 4 CI. &. 
 P. 093; [Burgin v. Burgin, 1 Ired. L. 160, 453; Pike v. Colvin, 67 111. 227.] 
 438 
 
SOMETIMES A CONDITION OP TITLE. 387 
 
 sheriff, and he was held liable, though possibly the plaintiff might 
 have been estopped if she had asserted at the time that she was the 
 wife of the person against whom the writ issued (a). 
 
 There are certain classes of cases, indeed, in which it may be said 
 that mistake, or at any rate ignorance, is the condition of acquiring 
 legal or equitable rights. These are the exceptional cases in which 
 an apparent owner having a defective title, or even no title, can 
 give to a purchaser a better right than he has himself, and which 
 fall under the rules of law touching market overt and the transfer 
 of negotiable instruments, and the rule of equity that the purchase: 
 for valuable consideration without notice of any legal estate, right, 
 or advantage is " an absolute, unqualified, unanswerable defense " (b) 
 against any claim to restrict the exercise or enjoyment of the legaL 
 right so acquired (c). These rules depend on special reasons. The 
 two former introduce a positive exception to the ordinary principles- 
 of legal ownership, for the protection of purchasers and the con- 
 venience of trade (d). It is natural and necessary that such anom- 
 alous, privileges should be conferred only on purchasers in good 
 faith. Now good faith on the purchaser's part presupposes igno- 
 rance of the facts which negative the vendor's apparent title. It 
 may be doubted on principle, indeed, whether this ignorance should 
 not be free from negligence in order to entitle him. For some time 
 this was so held in the case of negotiable instruments, but is so no 
 longer (e). The rule of equity, though in some sort analogous to 
 this, is not precisely so. A. transfers legal ownership to B., a pur- 
 fa) Glasspoole v. Young, 9 B. & C. 696, 700. 
 
 (b) Pilcher v. Rawlins, 7 Ch. 259, 269, per James, L. J. ; Blackwood v. Lon- 
 don Chartered Bank of Australia, L. K. 5 P. 0. 92, 111. 
 
 (c) This applies not only to purely equitable claims, hut to all purely equit- 
 able remedies incident to legal rights. But it does not apply to those remedies 
 for the enforcement of legal rights which in a few cases have been administered 
 by courts of equity concurrently with courts of law. Per Lord Westbury, 
 Phillips v. Phillips, 4 D. P. J. 208. 
 
 (d) As to market overt the policy of the rule seems an open question. The- 
 Indian Contract Act contains no such provision (see s. 108), while on the other 
 hand the German Commercial Code (s. 30fi) extends it to all sales made by a 
 trader in the course of his business; ["We are not aware that this Saxon insti- 
 tution of markets overt, which controls and interferes with the application of 
 the common law, has ever been recognized in any of the United States, or re- 
 ceived any judicial sanction;" Ventress v. Smith, 10 Pet. 161,176; 2 Kent, 
 324.] 
 
 ( e) See Chapter V., p. 212, above. 
 
 W 439 
 
3S8 CHAP. VIII. MISTAKE. 
 
 388] chaser for value, by' an act effectual *for that purpose/ If: 
 in A.'s hands the legal ownership is fettered by an equitable obli- 
 gation restraining him wholly or partially from the beneficial 
 ■enjoyment of it, this alone will not impose any restriction upon B. 
 .For all equitable rights and duties are in their origin, and proper 
 -nature not in rem but in personam. But if B. (by himself or his 
 agent) knows of the equitable liability, or if the circumstances are 
 such that with reasonable diligence he would know it, then he 
 makes himself; actively by knowledge, or passively by negligent 
 ignorance, a party to A.'s breach. of duty. In such case he can not 
 rely on the legal right derived from A., and disclaim the equitable 
 liability which he knew or ought to have known to attach to it: 
 and the equitable claim is no less enforceable against him than it 
 formerly was against A. To be accurate, therefore, we should say 
 not that an exception against equitable claims is introduced in 
 favor of innocent purchasers, but that the scope of equitable claims 
 is extended against purchasers who are not innocent; not that ig- 
 norance is a condition of acquiring rights, but that knowledge (or 
 means of knowledge treated as equivalent to actual knowledge) is 
 a, condition of being laden with duties which, as the language of 
 equity has it, affect the conscience of the party (a). 
 
 Even here the force and generality of the main rule is shown by 
 the limits set to the exceptions. The purchaser of any legal right 
 for value and without notice is to that extent absolutely protected; 
 But the purchaser of an equitable interest, or of a supposed legal 
 right which turns out to be only equitable, must yield to all prior 
 equitable rights (6), however blameless or even unavoidable his 
 
 (a) Observe that on the point of negligence the rule of equity differs from 
 the rules of law: though, as the subject-matter of the rules is different, there is 
 no actual conflict. 
 
 (6) Phillips v. Phillips, 4 D. F. J. 208: though a purchaser for value without 
 notice will not be deprived by a court of equity of any thing he has actually got, 
 e.g., possession of title-deeds : Heath v. Crealock, 10 Ch. 22 ; "Waldy v. Gray, 22 
 Eq. 238 : [■' Courts of equity follow the common-law-rule in dealing with equitable 
 interests; so that a purchaser who acquires only a right in equity, takes it sub- 
 ject to all prior equitable claims, whether he had notice of them or not. It is 
 only, therefore, when an equitable claim to property comes into competition with 
 the legal ownership, that the peculiar doctrines of equity in regard to purchase 
 lor value without notice are called into action; and even then, the inquiry is 
 not whether the equitable claimant, but whether the legal owner is a purchaser 
 for value without notice. If he is, he takes the property discharged from the 
 adverse equitable claim; if he is not, he is bound by it. In other words, pur- 
 410 
 
WHEN DUTIES NOT ALTERED. 3S9 
 
 mistake may have been. Again, no amount of negligence will 
 vitiate the title of a bona fide holder of a negotiable instrument, 
 but not the most innocent mistake will enable him to make title 
 through a forged indorsement (a). Where a bill was drawn payable 
 to the order of one H. Davis and indorsed by another H. Davis it 
 was held that a person who innocently discounted it on the faith 
 of this indorsement had no title (b). *It might also be said [389 
 that where tacit assent or acquiescence is in questien, there igno- 
 rance is in like manner a condition of not losing one's rights. But 
 this is not properly so. For it is not that ignorance avoids the ef- 
 fect of acquiescence, but that there can be no acquiescence without 
 knowledge. It is like the case where knowledge or intention must 
 be present to constitute an offense. In this sense and for this pur- 
 pose " nulla voluntas errantis est " (c). 
 
 The same principles hold in cases more directly connected with 
 the subject of this work. A railway company carries an infant 
 above the age of three years without taking any fare, the clerk 
 -assuming him to be under that age, and there being no fraud on 
 the part of the person in whose care he travels : the mistake does 
 not prevent the company from being liable on their contract to 
 -carry him Bafely (<2). A person who does not correctly know the 
 nature of his interest in a fund disposes of it to a purchaser for 
 value who has no greater knowledge and deals with him in good 
 faith ; if he afterwards discovers that his interest was in truth 
 greater and more valuable than he supposed it to be, he can not 
 -claim to have the transaction set aside on the ground of this mis- 
 chase for value without notice is not a source of title, either legal or equitable, 
 and it is not commonly a material element of either; it is material only to one 
 who is legal owner without it, and it is material to him only for the purpose of 
 rendering his title unimpeachable in equity ;" Langdell's Summary of Eq. PI,, 
 g 140; and see Anketel v. Converse, 17 O. S. 11, 20; Briscoe u..Ashby, 24 Gratt. 
 454, 475, sqq. ; Hinds v. Vattier, 7 Pet. 252, 271 ; Boone u. Chiles, 10 Pet. 177, 
 210 ; Chew v. Barnet, 11 S. & R. 389 ; Wailes v. Cooper, 24 Miss. 208; Downer 
 v. Bank, 39 Vt. 25.] 
 
 (a) [Supra, p. 212.] 
 
 (b) Mead v. Young, 4 T. E. 28; [Graves v. Bank, 17 N. Y. 205.] 
 
 (c) D. 39. 3. de aqua pluv. 20. 
 
 (d) Austin v. G. "W. B. Co , L. E. 2 Q. B. 442. The judgments treat it as one 
 -entire" contract with the mother of the infant plaintiff, who toolco'nly one ticket 
 ifor herself; it seems therefore that strictly she ought to have been the plaintiff. 
 
 441 
 
390 CHAP. VIII. MISTAKE. 
 
 take (a). This, however, is to be taken with caution, for it applies- 
 only to cases where the real intention is to deal with the party's 
 interest, whatever it may be. Were the intention of botli parties 
 to deal with it only on the implied condition that the state of 
 things is not otherwise than it is supposed to be, the result would 
 be quite different, as we shall find under the head of Fundamenud 
 Error. 
 
 So far, then, mistake as such does not improve the position of the- 
 party doing a mistaken act. Neither does it as a rule make it any 
 worse. A. mistaken demand which produces no result does not 
 affect a plaintiff's right to make the proper demand afterwards. 
 Where B. holds money as A.'s agent to pay it to C, and appropri- 
 ates it to his own use, C. may recover from A., notwithstanding a 
 previous mistaken demand on B.'s estate, made on the assumption 
 390] that B. would be treated as C.'s own *agent (b). Nor does 
 a mistaken repudiation of ownership prevent the true owner of 
 goods from recovering damages afterwards for injury done to them 
 by the negligence of a bailee, whose duty it was to hold them for 
 the true owner at all events (c). This is independent of and quite 
 consistent with the rule that a party who has wholly mistaken his 
 remedy can not be allowed to proceed by way of amendment in 
 the same action in an entirely different form and on questions of a 
 different character (d). 
 
 Next, mistake does not in general alter existing rights. The 
 presence of mistake will not make an act effectual which is other- 
 wine ineffectual. Many cases which at first sight lo.ok like cases 
 of relief against mistake belong in truth to this class, the act be- 
 ing such that for reasons independent of the mistake it is inoper- 
 ative. Thus a trustee's possession of land is the possession of his 
 cestui que trust, and it makes no difference if he is mistaken as to 
 the pei-son who really is cestui que trust. His payment over 
 of the rents and profits to a wrong person, whether made willfully 
 and fraudulently, or ignorantly and in good faith, can not alter the 
 character of the possession (e). Where the carrier of goods after 
 
 (a) Marshall v. Collett, 1 Y. & C. Ex. 232. 
 
 (b) Hardy v. Metropolitan Land & Finance Co., 7 Ch. 427, 433. Cp. Vange- 
 row. Pand. 1.118. 
 
 (e) Mitchell v. Lancashire & Yorkshire Ry. Co., L. E. 10 Q. B. 256, 261. 
 
 (d) Jacobs ». Seward, L. R. 5 H. L. 464. 
 
 (e) Lister v. Pickford, 34 Beav. 576. 
 
 442 
 
CONSTRUCTION OF CONTRACT NOT ALTERED. 391 
 
 receiving notice from an unpaid vendor to stop them, nevertheless- 
 delivers them by mistake to the buyer, this does not defeat the 
 vendor's rights : for the right of possession (a) revests in the ven- 
 dor from the date of the notice, if given at such a time and under 
 such circumstances that the delivery can and ought to be pre- 
 vented (6), and the subsequent mistaken delivery has not, as an 
 intentional wrongful delivery would not have, any power to alter 
 it (c). Again, by the rules of the French Post Office the sender 
 of a letter can reclaim it after it is posted, and before th<5 dispatch 
 of the mail. C, a banker at Lyons, posted a letter containing bills 
 of exchange indorsed to D., an English' correspondent. Before the 
 dispatch *of the mail, learning from D's agent on the spot [391 
 that the bills would not be accepted, C. sent to the post-office to* 
 stop the letter." It was put aside from the rest of the mail, but by 
 a mistake of C's clerk in not completing the proper forms it was 
 dispatched in the ordinary cOurse. It was held that there was no 
 effectual delivery of the bills to D. and that the property remained 
 in C. The mistake of the clerk could not take " the effect of mak- 
 ing the property in the bills pass contrary to the intention of both 
 indorser and indorsee " (d). Had not the revocation been at the 
 indorsee's request, then indeed the argument would probably have 
 been correct that it' was a mere uncompleted intention on C's part; 
 for as between 0. and the post-office every thing had not been done 
 to put an end to the authority of the post-office to forward the let- 
 ter in the regular course of post. 
 
 Anderson's case (e) may possibly be supported on a similar 
 ground. It was there held that a transfer of shares sanctioned by 
 the .directors and registered in ignorance that calls were due from 
 the transferor might afterwards be canceled, even, by an officer of 
 
 (a) The book has property : but the use of this word assumes that stoppage- 
 in transitu rescinds the contract, contrary to the opinion which now prevails 
 (Schotsmans v. Lancashire & Yorkshire Ey. Co., 2 Oh. 332, 340); [Jordan v. 
 James, 5 Ohio, 88, 98; Newhall v. Vargas, 15 Me. 314; Rowley v. Bigelow, 12 
 Pick. 307, 313; Stanton 'v.- Eager, 16 Pick. 467, 475; Chandler v. Pulton, 10 
 Tex. 2, 23; Eucker v. Donovan, 13 Kan. 251.] 
 
 (b) Whitehead v. Anderson, 9 M. & W. 518; Blackburn on Cont. of Sale, 
 269; [Muttmm v. Heyer, 5 Den. 629.] 
 
 (c) . Litt v, Cowley, 7 Taunt. 169. [d) Ex parte Cote, 9 Ch. 27, 32. 
 
 (e) 8 Eq. 509. Sed qu. Mr. Justice Lindley, who was himself counsel in the' 
 case, cites it (2. 1438) with the material qualification, "if the transferee does- 
 not object." 
 
 443 
 
:392 OHAP. VIII. MISTAKE. 
 
 the company without authority from the directors, on the facts be- 
 ing discovered. It maybe that the directors' assent to the transfer 
 is not irrevocable (apart from the question of mistake) until the 
 parties have acted upon it. 
 
 Again, the legal effect of a transaction can not be altered by the 
 -subsequent conduct of the parties ; and it makes no difference if 
 that conduct is founded on a misapprehension of the original legaL 
 effect. A man who acts on a wrong construction of his own duties 
 under a contract he has entered into does not thereby entitle him- 
 self, though the acts so done be for the benefit of the other party ? 
 to have the contract performed by the other according to the same 
 construction (a). This decision was put to some extent upon the 
 ground that relief can not be given against mistakes of law. But 
 it is submitted that this is not a case where the distinction is really 
 material. Suppose the party had not construed the contract 
 392] wrongly, but acted on an erroneous *recollection of its ac- 
 tual contents, the mistake would then have been one of fact, but it 
 is obvious that the decision must have been the same. Still less 
 can a party to a contract resist the performance of it merely on 
 the ground that he misunderstood its legal effect at the time (6). 
 Every party to an instrument has a right to assume that the others 
 intend it to operate according to the proper sense of its actual ex- 
 pressions (c). 
 
 It must be remembered, however, that where both parties have 
 
 -acted on a particular construction of an ambiguous document, that 
 
 construction, if in itself admissible, will be adopted by the Court (d). 
 
 To this extent its original effect, though it can not be altered, may 
 
 (a) Midland G. W. By.' of Ireland v. Johnson, 6 H. L. C. 798, 811, per Lord 
 •Chelmsford. 
 
 (b) Powell ii. Smith, 14 Eq. 85. The dictum in Wycombe Ky. Co. v. Don- 
 nington Hospital, 1 Ch. 273, can not he supported in any sense contrary to 
 this. 
 
 (c) Per Knight Bruce, L. J., Bentley v. Mackay, 4 D. P. J. 285; [Arnold v. 
 Arnold, 14 Ch. D. 270, 284. " If parties understand an agreement differently, 
 and neither of them makes known to the other his construction of it, and it is 
 afterward reduced to writing and duly executed, they are both bound, in equity 
 
 .as well as at law, by the terms of the written instrument, which in such cases 
 is to be construed by the court : " Sawyer v. Hovey, 3 Allen, 331, 333 ; Miller 
 v. Lord, 11 Pick. 11; Phillip v. Gallant, 62 IS. Y. 256; Clark v. Lillie, 39 Vt. 
 
 -405.] ■ 
 
 ' (d) Forbes v. Watt, L. K. 2 Sc. & D. 214; [Chicago v. Seidell, 9 Wall. 50, 54; 
 444 
 
OF PACT AND OF LA"W. 393- 
 
 be explained \>j the conduct of the parties. And moreover, if both 
 parties to a contract act on a common mistake as to the construe-' 
 tion of it, this may amount to a variation of the contract by mu- 
 tual consent (a). This is in truth another illustration of the lead- 
 ing principle. Here their conduct in performing the contract with- 
 variations would show an intention to vary it if the true construc- 
 tion were present to their minds. And it might be said that (on 
 the same principle as in cases of acquiescence', etc.) they can not 
 mean to vary their contract if they do not know what it really is. 
 But the answer is that their true meaning is to perform the con- 
 tract at all events according to their present understanding of it, 
 and thus the mistake is immaterial and ineffectual. Practically- 
 such a mistake is likely to represent a real original intention incor- 
 rectly expressed in the contract ; so that principle and convenience 
 agree in the result. 
 
 We may also mention that there is no jurisdiction to set aside 
 an award, or refer it back to the arbitrator, on the ground of a 
 mistake in fact or law, unless the arbitrator admits the mistake- 
 *and desires the assistance of the Court to rectify it, or un- [393 
 less there is an actual excess of jurisdiction (6). 
 
 What, then, are the special classes of cases in which mistake is 
 of importance, and which have given rise to the language held by 
 
 Coleman a . Grubb, 23 Pa. St. 393, 409 ; St. Louis Gas Light Co. a. St. Louis, 46- 
 Mo. 121; Jackson v. Perrine, 35 2SF. J. L. 137; Stone v. Clarke, 1 Met. 378. 
 
 But where the meaning of the instrument is clear in the eye of the law, the 
 error of the parties can not control its effect. Eailroad Co. v. Trimble, 10 "Wall.. 
 367; Insurance Co. v. Doll, 35 Md. 89.] Evidence of the construction put on 
 an instrument by some of the parties is of course inadmissible: McClean v. 
 Kennard, 9 Oh. 336, 349. 
 
 (a) 6 H. L. C. p. 812-3. In the particular case the appellants were an in- 
 corporated company, and therefore it was said could not be thus bound : sed qu.- 
 
 (b) Dinn v . Blake, L. E. 10 C. P. 388; [Burchell v. Marsh, 17 How. 344; 
 Spoer v. Bidwell, 44 Pa. St. 23 ; Smith v. Eailroad Co., 16 Gray, 521 ; Jenkins- 
 v. Meagher, 46 Miss. 84; Sanborn v. Murphy, 50 N. H. 65; Perkins v. Giles, 50 
 N. Y. 228 ; Sherfy .v. Graham, 72 111. 158. But an award may be set aside for 
 such a mistake of fact as an obvious miscalculation of figures, or for a mistake 
 of law where it is plain that the arbitrator meant to decide according to the- 
 law, but by misapprehension failed to do so: Boston Water Power Co. v. Gray, 
 6 Met. 131 ; Fudickar v. Insurance Co., 62 N. Y. 392 ; State v. Ward, 9 Heisk. 
 100; Davis v. Cilley, 44 N. H. 448; Carter v. Carter, 109 Mass. 306; Moore v,. 
 Luckess' Next of Kin, 23 Gratt. 160; Amer. Screw Co. v. Sheldon, 12 E. I. 
 324; see Morse on Arb. and Award, ch. 10.] An arbitrator can not of his own 
 motion correct even a manifest clerical error in his award after signing it: he- 
 should apply to the Court : Mordue v. Palmer, 6 Ch. 22. 
 
 445 
 
394 CHAP. V.IU. , MISTAKE. 
 
 ■our. books on the r subject? — (language which at times goes the 
 length of such untenable statements as that mistake is enough, to 
 vitiate. any transaction.): They are believed to-be as follows : 
 
 1. Where mistake is such as to exclude: real consent, and so — 
 not avoid the contract but — prevent the formation of a contract, 
 there the seeming agreement is void. Of this we shall presently 
 speak at large (Part 2 of this chapter). 
 
 2. Where a mistake occurs in expressing the terms of a real con- 
 sent, such mistake may be remedied by the special jurisdiction of 
 ■courts of equity. Of this also we shall speak separately (Part 3)'. 
 
 3. A renunciation of rights in general terms is understood not 
 to include rights of whose actual or possible existence the party 
 was not aware. This is, in truth, a particular case under No. 2. 
 
 All these exceptions may be considered as more apparent than 
 real. 
 
 4. Money paid under a mistake of fact may be recovered back. 
 This is a real exception, and the most important of all. Yet 
 
 -even here the legal foundation of the right is not so much the mis- 
 take in itself as the failure of the supposed consideration on which 
 the money was paid. 
 
 B. Mistake of Fact and of Law. 
 
 It is an obvious principle that citizens must be presumed for all 
 public purposes to know the law, or rather that they can not he. 
 allowed to allege ignorance of it as an excuse. As has often been 
 said, the administration of justice would otherwise be impossible. 
 Practically the large judicial discretion -which can be exercised in 
 criminal law may be trusted to prevent the rule from operating too 
 391] harshly in particular cases. On the other *h and it would 
 lead to hardship and injustice not remediable by any judicial dis- 
 -cretion if parties were always to be bound in matters of private 
 law by acts done in ignorance of their civil rights. There is an 
 apparent conflict between these two principles which has given 
 rise to much doubt and discussion (a). Eut the conflict, if indeed 
 
 (a) Savigny, followed by Vangerow and other later writers, strikes out a 
 general rule thus: Where mistake is a special ground of relief (and there 
 only), the right to such relief is excluded by negligence. Ignorance of law is 
 presumed tp be the result of negligence, buf the presumption may be rebutted 
 by special circumstances, e.g. the law being really doubtful at the time. There, 
 is much.to be said for this, doctrine on principle, but it will not fit English law 
 as now settled on the .most important topic, viz., recovering back money paid ; 
 tor there, so long as the ignorance is of fact, negligence is no bar: means of 
 446 
 
MISTAKE OP LAW. 395 
 
 it be not merely apparent, is at any rate much more limited in ex- 
 tent than is commonly supposed; 
 : The rule, as generally stated, is to this effect: ■ 
 
 Belief is given against mistake of fact but not against mistake 
 ■of law. 
 
 Neither branch of the statement is true -without a groat deal 
 of limitation and explanation. Wo have already seen that in most' 
 transactions mistake is altogether without effect. There, of course, 
 the distinction has no place. Again there are the many cases 
 •where, as we have pointed out above, knowledge or notice is a 
 condition precedent to some legal consequence.. By the nature of 
 these cases it generally, if not. always, happens that the subject- 
 matter of such knowledge, or of the ignorance which by excluding 
 it excludes its legal consequences, is a matter of fact and not of law. 
 The general presumption of knowledge of the law does so far ap- 
 ply, no doubt, that a person having notice of material facts can 
 not be heard to say that he did not know the legal effect- of those 
 facts. All these, however, are not cases of relief against mistake 
 in any correct sense. 
 
 Then come the apparent exceptions to the general rule, which 
 we have numbered 1, 2, and 3. As to No. (1) it is at least con- 
 ceivable that a common mistake as to a -question of law should go 
 so completely to the root of the matter as to *prevent any [395 
 real agreement from being formed. It is impossible to see why a 
 contract should be imposed on the parties by a legal fiction for the 
 sake of asserting a general proposition in a state of circumstances 
 where it is inapplicable. It is laid down by very high authority 
 " that a mistake or ignorance of the law forms no ground of relief 
 from contracts fairly entered into with a full knowledge of the 
 facts" (a): but this does not touch the prior question whether 
 
 knowledge are material only as evidence of actual knowledge: Kelly v. Solari, 
 9 M. & W. 54; 11 L. J. Ex. 10; Townsend v. Crowdy, 8 C. B. N. S. 477; 29 
 L. J. C. P. 300. The only limitation is that the party seeking to recover must 
 not have waived all inquiry; per Parke, B., 9 M. & W. 59, and per Williams, 
 J., 8 0. B. N. fcj. 494; [Bank v. Kl tinge, 40 N. Y. 391 ; Mayer v. Mayor, &o., of 
 N. Y., 63 N. Y. 455; Brown'*. C. C. & R. Gravel Road Co., 56 Ind. 110; Ruth- 
 erford v. Mclvor, 21 Ala. 750; Guild e. Baldridge, 2 Swan, 295; Kbontz v. 
 Bank, 51 Mo. 275 ; Lewelleri v. Garrett, 58 Ind. .442; Devine v. Edwards,. 87 
 111. .177 ; Young v. Lehman, Sup. Ct. Ala., 11 G. L. J. 277.] 
 " i a) Bank of U. 8. WDaniel, 12 Pet. 32, 56. Common mistake as to a- collat- 
 eral matter of law does 'not of course avoid a contract: Eaglesfield' v. Marquis 
 of Londonderry, 4 Ch. D. 693. 
 
 447 
 
895 chap. Tin; mistake. 
 
 there is a contract at' all. On cases of this class English decisions- 
 go to this extent at all events, that ignorance of particular private 
 rights is equivalent to ignorance of fact (a). As to No. (2) the 
 principle appears to be the same. A. and B. make an agreement 
 and instruct C. to put it into legal form. C. does this so as not to- 
 express the real intention, either by misapprehension of the in 
 structions or by ignorance of law. It is obvious that relief 
 should be equally given in either case. Indeed, if the parties were 
 to be held to a contract they did not really make, merely because- 
 the erroneous expression was due to a mistake of law, this would 
 be attributing a special legal effect to mistake, contrary not only 
 to convenience but to the principal rule that mistake is in itself in- 
 effectual. 
 
 • Authority, so far as it goes, is in favor of what is here ad» 
 vanced (b). There is clear authority that on the other hand a 
 court of equity will not reform an instrument by inserting in it a 
 clause which the parties deliberately agreed to leave out (c), nor 
 substitute for the form of security the parties have chosen another 
 form which they deliberately considered and rejected (d), although, 
 their choice may have been determined by a mistake of law. The 
 reason of these decisions, however, is that in such cases the form 
 
 (a) Bingham v. Bingham, 1 Ves. Sr. 126; BrougTiton v. Hutt, 3 De G. & J.. 
 501 ; Cooper v. Phibbs, L. R. 1 H. L. 149, 170 ; of which cases a fuller account 
 is given below. [And see Jones v. Clifford, 3 Oh. D. 779, 792; Baker v. Mas- 
 sey, 50 la. 399, 404; King v. Doolittle, 1 Head. 77.] 
 
 (b) Hunt v. Bousmaniere's Adm., 1 Pet. 1, 13, 14. [It is well established that 
 relief will be given under such circumstances though the mistake be one of 
 law: Nowlin v. Pyne, 47 la: 293; McMillan v. Fish, 29 N. J. Eq. 610; Canedy 
 v. Marcy, 13 Gray,- 373; Pitcher ». Hennessey, 48 N. Y. 415; Stedwell v. An- 
 derson, 21 Conn. 139; Bank v. Insurance Co., 31 Conn. 517, 529; Scales v. Ash- 
 brook. 1 Met. (Ky.) 358; Larkins v. Biddle, 21 Ala. 252; Green v. Railroad 
 Co., 1 Beasl. 165; Clayton v. Ereet, 10 O. S. 544; Oliver v. Insurance Co., 1 ■ 
 Curtis, 277, 298-9; McKay v. Simpson, 6 Ired. Eq. 462; Snell v. Insurance Co. r 
 98 U. S. 85.] 
 
 (<0 Lord Irnham v. Child, 1 Bro. C. C. 92; [Betts v. Gunn, 31 Ala. 219 y 
 Andrew v. Spurr, 8 Allen, 412; Lee v. Kirby, 104 Mass. 420, 430; Ligon's 
 Adm'r. v. Rogers, 12 Ga. 281 ; Clark v. Hart, 57 Ala. 390]. 
 
 (rf) Hunt i>. Bousmaniere's Adm'r., 1 Pet. 1. [" Where the parties adopt the 
 security which is to be used to effectuate their intention, if the security should 
 fail, from ignorance of the law, or from any other cause, to operate as the par- 
 ties intended, the courts can not substitute any other security for the one- 
 adopted." Lanning v. Carpenter, 48 N. T. 408; Leavitt v. Palmer, 3 N. T. 19 r 
 38-9.] 
 
 448 
 
MISTAKE OF LAW. 395 
 
 of the instrument, by whatever considerations arrived at, is part- 
 of the agreement itself, and so beyond the power of the Court. 
 
 As to No. (3), there is quite sufficient authority to show 
 *that a renunciation of rights under a mistake as to par- [396 
 tieular applications of law is not conclusive, and some authority to 
 show that it is the same even if the mistake is of a general rule of" 
 Jaw. The deliberate renunciation or compromise of doubtful rights' 
 is of course binding ; it would be absurd to set up ignorance of the 
 law as an objection to the validity of a transaction entered into for 
 the very reason that the law is not accurately known (a). A com- 
 promise deliberately entered into under advice, the party's agents 
 and advisers having the question fully before them, can not be set 
 aside on the ground that a particular point of law was mistaken or 
 overlooked (6). Conduct equivalent to renunciation of a disputed 
 right is equally binding, at least when the party has the question 
 fairly before him. Thus in Stone v. Godfrey (c) the plaintiff had 
 been advised on his title unfavorably indeed, but in such a way as 
 to bring before him the nature of the question and give him a fair- 
 opportunity of considering whether he should raise it. Adopting, 
 however, the opinion he had obtained, he acted upon it for a con- 
 siderable time, and_ in a manner which amounted to representing 
 to all persons interested that he had determined not to l'aise the 
 question. It was held that although the mistake as to title might 
 in the absence of such conduct well be a ground of relief, a subse- 
 quent discovery that the correctness of the former opinion was 
 doubtful did not entitle him to set up his claim anew. In the late 
 case of Rogers v. Ingham (d) a fund had been divided between two 
 legatees under advice, and the payment agreed to at the time. One 
 of the legatees afterwards sued the executor and the other legates' 
 for repayment, contending that the opinion they had acted upon- 
 was erroneous ; it was held that the suit could not be maintained. 
 Similarly where creditors accepted without question payments 
 under a composition deed to which they had not assented, and 
 which, as it was afterwards decided, was for a technical reason not 
 
 (a) Cp. the remarks on compromises in' Oh. IV., p. 166 above; [Morris v. 
 Munroe, 30 Ga. 630 ; Bank v. Geary, 5 Pet. 99,114; Fisher v. May, 2 Bibb, 
 448; Stover I). Mitchell, 45 111. 213; MoOlellan v. Kennedy, 8 Md. 230, 248; 
 Smith v. Penn, 22 Gratt. 402.] 
 
 (ft) Stewart v. Stewart, 6 01. & P. 911 ; see the authorities reviewed, pp. 966- 
 970. 
 
 (c) 5 D. M. G. 76. (d) 3 Oh. D. 351 (V. C. H. and C. A.> 
 
 29 449 
 
S97 CHAP. VIII. MISTAKE. 
 
 binding on non-assenting creditors, it was held that they could not 
 ■afterwards treat the payments as made on account of the whole debt 
 ■3!)7J and sue for the balance. They might have guarded *thera- 
 selves by accepting the payments conditionally, but not having 
 ■done so they were bound (a). In Re Saxon Life Assurance So- 
 ciety (Jj) it was held that a creditor of a company was not bi>und 
 by a release given in consideration of having the substituted se- 
 em ity of another company, which security was a mere nullity, be- 
 ing given in pursuance of an invalid scheme of amalgamation. 
 Here the mistake was obviously not of a, general rule of law; and 
 perhaps the case is best put on the ground of total failure of con- 
 sideration. In M'Carthy v. Decaix (c), however, a foreigner had 
 married in England and obtained a divorce in Denmark. After 
 the wife's death in England he used language in his correspond- 
 ence with her relations which amounted to a general renunciation 
 ■of marital rights. He supposed, however, that the Danish divorce 
 was valid in England and that he had no legal interest in the wife's 
 property. This error was on a perfectly general rule of law 
 (though at the time but recently settled) : but it was held that he 
 was not precluded from asserting his rights as his wife's adminis- 
 trator. 
 
 As to No. (4), the subject of recovering back money paid by mis- 
 take does not properly fall within our scope. It is here, however, 
 that the distinction between mistakes of fact and of law does un- 
 doubtedly and inflexibly prevail. While no amount of mere neg- 
 ligence avoids the right to recover back money paid under a mis- 
 take of fact (if), money paid under a mistake of law can not in any 
 <sase be recovered: nor does anything like the qualification laid 
 down by Lord Westbury in Cooper v. Phibbs (e) appear to be ad- 
 mitted. Ignorance of particular rights, however excusable, is on 
 the same footing as ignorance of the general law (/). 
 
 (c) Kitehin v. Hawkins, L. 11. 2 C. P. 22. 
 
 (b) 2 J. & H. 408, 412 (the Anchor ca.) 
 
 (c) 2 Buss. & My. 614. But, in addition to the ground stated in the text, the 
 -wife's family represented to the husband, contrary to the fact, that her estate 
 "was insolvent. 
 
 (d) Note (ra), p. 394, supra. 
 
 (e) L. K. 2 H. L. at p. 170. 
 
 (/) See Skyring v. Greenwood, 4 B. & 0. 281, and cp. Piatt v. Bromage, 24 
 L. J. Ex. 63, where, however, the mistake was not only a mistake of law, but 
 collateral to the payment, the money being realty due ; Aiken v. Short, 1 H. & 
 450 
 
MISTAKE OF LAW. 398 
 
 *An important decision of the American Supreme Court [398 
 appears to proceed on the assumption that giving a negotiable in- 
 strument is for this purpose equivalent to the payment of money, 
 80 that a party who gives it under a mistake of law has no legal or 
 equitable defense (a). But this seems not consistent with the later 
 English doctrine that inasmuch as " want of consideration is alto- 
 gether independent of knowledge either of the facts or of the law," 
 the defense of failure of consideration is available as between the 
 parties to a negotiable instrument, whether the instrument has been 
 obtained by a misrepresentation of fact or of law (6). 
 
 A covenant to pay a debt for which the covenantor wrongly 
 supposes himself to be liable is valid in law, nor will equity give 
 any relief against it if the party's ignorance of the facts negativ- 
 ing his liability is due to his own negligence (c). 
 
 The Court of Bankruptcy will order repayment of money paid 
 to a trustee in bankruptcy under a mistake of law : but this is no 
 real exception, for it is not like an ordinary payment between party 
 and party. The trustee is an officer of the Court and '' is to hold 
 money in his hands upon trust for its equitable distribution among 
 the creditors" (d). In general the rule that a voluntary payment 
 made with full knowledge of the facts can not be recovered back is 
 
 N. 210; 25 L. J. Ex. 321, rests on the same ground, if the transaction in that case 
 he regarded as the bare payment of another person's debt ; if it be regarded as 
 the purchase of a security, it is an application of the rule caveat emptor, as to 
 which cp. Clare v. Lamb, L. E. 10 C. P. 334. ["A voluntary payment, made 
 •with a full knowledge of all the facts and circumstances of the case, though 
 made under a mistaken view of the law, can not be revoked, and the money so 
 -paid can not be recovered back; " Lamborn v. County Comm'rs, 97 U. S. 181, 
 185; Real Est. Sav. Inst. v. Under, 74 Pa. St. 371 ; Arnold v. Georgia R. & B. 
 Co., 50 Ga. 304; Clarke v. Dutcher, 9 Cow. 674; Downs «. Donnelly, 5 Ind. 
 496; Norris v. Blethen, 19 Me. 348; Livermore v. Peru, 55 Me. 469; But see 
 Northrup v. Graves, 19 Conn. 648; Culbreath v. Culbreath, 7 Ga. 64; Louis- 
 ville v. Henning, 1 Bush, 381. 
 
 Money paid under a mistake of foreign law is money paid under a mistake 
 of fact, and may be recovered back ; Haven v. Poster, 9 Pick. 112 ; King v. 
 Doolittle, 1 Head, 77, 85; Norton v. Marden, 15 Me. 45.] 
 
 (a) Bank of TJ. S. v. Daniel, 12 Pet. 32. [The decision may, however, be 
 .supported on the other ground oh which it is put by the court ; see at pp. 
 57, 58.] 
 
 (b) Southalls. Kigg, Porman v. Wright, 11 C.'B. 481, 492; 20 L. J. C. P. 
 145; Coward «. Hughes, 1 K. & J. 443.. 
 
 (c) Wasonfl. Waceing, 15 Beav. 151. 
 
 (d) Ex parte James, 9 Ch. 609, 614, per James, L'. J. 
 
 451 
 
399 CHAP. VIII. MISTAKE. 
 
 no less an equitable than a legal one ; "the law on the subject was- 
 exactly the same in the old Court of Chancery as in the old Courts 
 of Common Law. There were no more equities affecting the con- 
 science of the person receiving the money in the one Court than, 
 in the other Court, for the action for money had and received pro- 
 ceeded upon equitable considerations" (a). Thus a party who has- 
 submitted to pay money under an award can not afterwards im- 
 peach the award in equity on -the ground of irregularities which 
 were known to him when he so submitted (b). It has also been 
 laid down that in a common administration suit a legatee can not 
 399] be made to refund over-payments *voluntarily made by an 
 executor (c) : but the context shows that this was said with refer- 
 ence to the frame of the suit and the relief prayed for rather than- 
 to any general principle of law : moreover it was not the executor, 
 but the persons beneficially interested, who sought to make the 
 legatee liable. But in Bate v. Hooper (d) the point arose distinctly : 
 certain trustees were fiable to make good to their testator's estate 
 the loss of principal incurred by their omission to convert a fund 
 of Long Annuities : they contended that the tenant for life ought 
 to recoup them the excess of income which she had received ; but 
 as she had not been a willing party to any over-payment (e), it 
 was decided that she could not be called upon to refund the sums 
 which the trustees voluntarily paid her. In an earlier case an ex- 
 ecutor paid interest on a legacy for several years without deduct- 
 ing the property tax, and it was held that he could not claim to re- 
 tain out of subsequent payments the sums which he should have de- 
 ducted from preceding ones (/). 
 
 Part 2. Mistake as excluding true Consent. 
 In the first chapter we saw that no contract can be formed when* 
 there is a variance in terms between the proposal and the accept- 
 ance. In this case the question whether the parties really meant 
 the same thing can not arise, for they have not even said the same 
 
 («) Rogers v. Ingham (C. A.), 3 Ch. D. at p. 356, per James, L. J.; [Freeman. 
 ■». Curtis, 51 Me. 140, 143.] 
 
 (b) Goodman v. Sayers, 2 Jao. & W. 249, 263. 
 
 (c) Per Lord Cottenham, Lichfield v. Baker, 13 Beav. 447, 453. 
 (dl 5 D. M. G. 338. 
 
 (e) She had in fact desired the trustees to convert the fund: see p. 340. 
 (/) Currio v. Goold, 2 Madd. 163; [see Lee v. Stuart, 2 Leigh, 76.] 
 452 
 
AS EXCLUDING TRUE CONSENT. 400 
 
 thing. A court of justice can ascertain a common intention of the 
 parties only from some adequate expression of it, and the mutual 
 •communication of different intentions is no such expression. 
 
 We now have to deal with certain kinds of cases in which on 
 the face of the transaction all the conditions of a concluded agree- 
 ment are satisfied, and yet there is no real common intention and 
 therefore no agreement. 
 
 First, it may happen that each party meant something, it may 
 be a perfectly well understood and definite thing, but not thesame 
 thing which the other meant. Thus their minds never *met, [400 
 :as is not uncommonly said, and the forms they have gone through 
 are inoperative. 
 
 Next, it may happen that there does exist a common intention, 
 •which however is founded on an assumption made by both parties 
 as to some matter of fact essential to the agreement. In this case 
 the common intention must stand or fall with the assumption on 
 which it is founded. If that assumption is wrong, the intention 
 -of the parties is from the outset incapable of taking effect. But 
 .for their common error it would never have been formed, and it is 
 treated as non-existent. Here there is in some sense an agree- 
 ment; but it is nullified in its inception by the nullity of the thing 
 .agreed upon. And it seems hardly too artificial to say that there is 
 no real agreement. The result is the same as if the parties had 
 made an agreement expressly conditional on the existence at the 
 time of the supposed state of facts : which state of facts not exist- 
 ing, the agreement destroys itself. 
 
 In the former class of cases either one party or both may be in 
 -error: however that which prevents any contract from being 
 formed is not the existence of error, but the want of true consent. 
 " Two or more persons are said to consent when they agree upon 
 the same thing in the same sense :" this consent is essential to the 
 creation of a contract (a), and if it is wanting it matters not whether 
 .its absence is due to the error of one party only or of both. 
 
 In the latter class of cases the error must be common to both 
 parties. They do agree to the same thing, and it would be in the 
 same sense, but that the sense they intend, though possible as far 
 as can be seen from the terms of the agreement, is in fact nugatory. 
 
 (a) Indian Contract Act, 1872, s, 13; Hannen, J., in Smith v. Hughes, L. R. 
 ■-6 Q. B. 609; [Hazard v. Insurance Co., 1 Sumner, 218, 225, per Story, J.] 
 
 453 
 
401 CHAP. VIII. MISTAKE. 
 
 As it is, their consent is idle ; the sense in which they agree is, if 
 one may so speak, insensible. 
 
 In both sets of cases we may say that the agreement is nullified 
 by fundamental error ; a term it may be convenient to use in order 
 to mark the broad distinction in principle from those cases where 
 mistake appears as a ground of special relief. 
 
 We proceed to examine the different kinds of fundamental error- 
 relating : 
 401] *A. To the nature of tbe transaction. 
 
 B. To the person of the other party. 
 
 C. To the subject-matter of the agreement. 
 
 A. Error as to the nature of the transaction. 
 
 On this the principal early authority is Thoroughgood's case (a)_ 
 In that case, the plaintiff, who was a layman and unlettered, had 
 a deed tendered to him which he was told was a release for arrears 
 of rent only. The deed was not read to him. To this he said: 
 " If it be no otherwise I am content ;" and so delivered the deed. 
 It was in fact a general release of all claims. Under these circum- 
 stances it was adjudged that the instrument so executed was not 
 the plaintiff's deed. The effect of this case is "that, if an illite- 
 rate man have a deed falsely read over to him, and he then seals- 
 and delivers the parchment, it is nevertheless not his deed " (b) : 
 it was also resolved that "it is all one in law to read it in other 
 words, and to declare the effect thereof in other manner than is- 
 contained in the writing;" but that a party executing a deed with- 
 out requiring it to be read or to have its effect explained would be 
 bound (i.e., to this extent, that he could not say it was not his deed, 
 apart from any question of fraud or the like) (c). Agreeably to- 
 
 (a) 2 Co. Rep. 96. 
 
 (6) Pei- Cur. L. R. 4 C. P. 711. It had been long before said, in 21 Hen. 7. 
 that " if I desire a man to enfeoff me of an acre of land in Dale, and he tell 
 me to make a deed for one acre with letter of attorney, and I make the deed, 
 for two acres, and read and declare the deed to him as for only one acre, and 
 he seal tlie deed, this deed is utterly void whether the feoffor be lettered or not, 
 because he gave credence to me and I deceived him." (Keilw. 70, b, pi. 6.) 
 'And see the older authorities referred to in note (a), p. 402. An anony- 
 mous case to the contrary, Skin. 159, is sufficiently disposed of by. Lord St. 
 Leonards' disapproval (V. & P. 173); [Green v. North Buffalo T'shp., 56 Pa. 
 St. 110; Schuylkill County v. Copley, 67 Pa. St. 386; Jackson v. Hayner, 12 
 Johns. 469 ; Kailroad Co. v. Schunick, 65 111. 223.] 
 
 (c) [Greenfield's Estate, 14 Pa. St. 489, 496; Bauer v. Both, 4 Kawle, 83, 94;. 
 Hallenbeck ». Dewitt, 2 Johns. 404 ; Rogers v. Place, 29 Ind. 577.] 
 454 
 
ERROR AS TO NATURE OP TRANSACTION. 402 
 
 this the law is stated in Sheppard's Touchstone, 56. But at pres- 
 ent the mere reading over of a deed without an explanation of the 
 contents would not be thought sufficient to show that the person 
 executing it understood what he was doing (a). 
 
 The doctrine has recently been expounded and confirmed by 
 the luminous judgment of the Court of Common Pleas in Foster 
 *v. Mackinnon (6). The action was on a bill of exchange [402 
 against the defendant as indorser. There was evidence that the 
 acceptor had asked the defendant to put his name on the bill, tell- 
 ing him it was a guaranty; the defendant signed on the faith of 
 this representation and without seeing the face of the bill. The- 
 Court held that the signature was not binding, on the same princi- 
 ple that a blind or illiterate man is not bound by his signature to- 
 a document whose nature is wholly misrepresented to him (c). 
 
 A signature so obtained 
 
 " Is invalid not merely on the ground of fraud, where fraud exists, but 
 on the ground that the mind of the signer did not accompany the signa- 
 ture; in other words, that he never intended to sign, and therefore in 
 contemplation of law, never did sign, the contract to which his name is 
 appended (d) . . . The position that if a grantor or covenantor he 
 
 (a) Hoghton v. Hoghton, 15 Beav. 278, 311. In the case of a will the execu- 
 tion of it by a testator of sound mind after having had it read over to him is 
 evidence, but not conclusive evidence, that be understood and approved its 
 contents ; Fulton v. Andrew, L. K. 7 H. L. 448, 460, sqq. 472. 
 
 (b) L. R 4 C. P. 704, 711. 
 
 (c) [DeCamp „. Hamma, 29 O. S. 467; Oline v. Guthrie, 42 Ind. 227; Van- 
 brunt v. Singley, 85 111. 281; Gibbs v. Linabury, 22 Mich. 479; Anderson v. 
 Walter, 34 Mich. 113; Griffiths v. Kellogg, 39 Wis. 290; Briggs v. Ewert, 51 
 Mo. 245 ; Martin v. Smylee, 55 Mo. 577 ; Bank v. Lierman, 5 Neb. 247. 
 
 But if the person whose signature to a negotiable instrument has been so- 
 obtained was guilty of negligence in its execution, he can not dispute its valid- 
 ity in the hands of an innocent bolder for value before maturity, and the bet- 
 ter opinion is that, as against such bolder, a person possessing the ordinary 
 faculties, and being able to read and write, who relies as to the character of the 
 instrument solely upon the representation of the party at whose request he 
 signs, should be deemed negligent: Decamp v. Hamma, 29 O. S. 467, 471 ; Ross 
 v. Doland, 29 O. S. 473; Chapman v. Kose, 56 N. Y. 137; Nebecker v. Cutsin- 
 ger, 48 Ind. 436; Kimble v. Christie, 55 Ind. 140; Thomas v. Euddell, 66 Ind. 
 326;' Leach v. Nichols, 55 111. 273; Douglass v. Matting, 29 la. 498; Shirts v. 
 (Werjohn, 60 Mo. 305 ; Bank v. Smith, 55 N. H. 593 ; Abbott «. Kose, 62 Me. 
 194.] 
 
 (d) The same rule is laid down, and for the same reason, in a rescript of Dio- 
 cletian and Maximian : Si falsum instrumentum emtionis conscriptum tibi, 
 
 455 
 
403 CHAP. VIII. MISTAKE. 
 
 deceived or misled as to the actual contents of the deed, the deed does not' 
 bind him, is supported by many authorities : see Com. Dig. Fait (B. 2) (a), 
 and is recognized by Bayley, B., and the Court of Exchequer, in the case 
 of Edwards v. Brown (4). Accordingly, it has recently been decided in 
 the Exchequer Chamber that if a deed be delivered, and a blank left 
 therein be afterwards improperly filled up (at least if that be done with- 
 out the grantor's negligence), it is not the deed of the grantor: Swan v. 
 North British Australasian Land Company (c). These cases anply to 
 deeds ; but the principle is equally applicable to other written contracts." 
 The judgment proceeds to notice the qualification of the general 
 rule in the case of negotiable instruments signed in blank, when 
 the party signing knows what he is about, i.e., that the paper is 
 403] ^afterwards to be filled up as a negotiable instrument (d). 
 But here the defendant " never intended to indorse a bill of ex- 
 change at all, but intended to sign a contract of an entirely differ- 
 ent nature." He was no more bound than if he had signed his 
 name on a blank sheet of paper, and the signature had been after- 
 
 -velut locationis quam fieri mandavei-as, subscribere te non relecto sed fidem 
 habentem suasit, neutrum contractual, in utroque alterutrius consensu deflciente, 
 «onstitisse procul dubio est. C. 4. 22. plus valere. 5. 
 
 (a) Cited also ly Willes J., 2 C. B. N. S. 624, and see 2 Ko. Ab. 28 S.: the 
 ■cases there referred to (30 E. 3. 316; 10 H. 6. 5, pi. 10)' show that the principle 
 •was recognized in very early times. 
 
 (6) 1 C. & J. 312. 
 
 (c) 2 H. & O. 175 ; 32 L. J. Ex. 273. And it was there doubted whether a 
 man can be estopped by mere negligence from showing that a deed is not 
 really his deed. See per Byles, J., 2 H. & C. 184 ; 32 L. J. Ex. 278 ; and per 
 Cockburn, C. J., 2 H. & C. 189 ; 32 L. J. Ex. 279. Hellish, L. J., in Hunter v. 
 "Walters, 7 Oh. 75, 87, mentioned this question as still open : and see Halifax 
 Union v. Wheelwright, L. K 10 Ex. 192; [Pence v. Arhuckle, 22 Minn, 417; 
 Sehintz v. McManamy, 33 Wis. 299.] 
 
 (d) [See Bank v. Neale, 22 How. 96 ; Putnam o. Sullivan, 4 Mass. 45 ; Ful- 
 lerton v. Sturgess, 4 O. S. 529; Bank v. Curry, 2 Dana, 142; Huntington v. 
 Dank, 3 Ala. 186 ; Insurance Co. v. Leavenworth, 30 Vt. 11,20; Waldron v. 
 Young, 9 Heisk. 777; Joseph v. Bank, 17 Kan. 256; and see Ives v. Bank, 2 
 Allen, 230 ; Bedlich v. Doll, 54 N. Y. 234. In Orrick u . Colston, 7 Gratt. 189, 
 the same qualification of the general rule was applied in the case of a blank 
 indorsement of a paper afterwards filled up as a non-negotiable note; and see 
 Spitler i>. James, 32 Ind. 202.] "Whether this is a branch of the general prin- 
 ciple of estoppel or a positive rule of the law merchant was much doubted in 
 Swan v. North British Australasian Land Co. in the Court below: 7 H. & N. 
 603; 31 L. J. Ex. 425. In the present judgment the Court of C. P. seems to 
 incline to the latter view; [and see Bank v. Wentworth, 5 Ex. Div. 96, 104.] 
 
 456 
 
ERROR AS TO NATURE Otf TRANSACTION. 404 
 
 ■wards fraudulently misapplied (a). This decision shows clearly 
 that an instrument executed by a man who meant to execute not 
 any such instrument but something of a different kind is in itself 
 a mere nullity (&), though the person so executing it may perhaps 
 be estopped from disputing it if there be negligence on his part (c) ; 
 and that, notwithstanding the importance constantly attached by 
 the law to the security of bona fide holders of negotiable instru- 
 ments, no exception is in this case made in their favor (b). 
 
 The existence of a fundamental error of this sort, not merely as 
 to particulars, but as to the nature and substance of the transac- 
 tions, comes very seldom, if ever, to be considered by a court of 
 equity, except in connection with questions of fraud from which it 
 is not always practicable to disentangle the previous question, Was 
 there any consenting mind at all ? There is enough, however, to 
 •show that the same principles are applied. 
 
 Thus in Kennedy v. Green (/]) the plaintiff was induced to exe- 
 cute an assignment of a mortgage, and to sign a receipt for money 
 which was never paid to her, "without seeing what she was setting 
 her hand to, by a statement that she was only completing her exe- 
 -cution of the mortgage deed itself, or doing an act by which she 
 -would secure the regular payment of the interest upon her 
 mortgage-money.'' Lord Brougham expressed a positive [404 
 -opinion that a plea of non est factum would have been sustained at 
 law under these circumstances (e). But his decision rested also on 
 
 (a) L. E. 4 C. P. at p. 712; [Nance v. Lary, 5 Ala. 370; Caulkinsc. Whisler, 
 ^9 la. 495 ; and see Baxendale v. Bennett, 3 Q. B. D. 525.] 
 
 (b) [See last page but one, note (c).] 
 
 (c) [See last page but one, note (c).] Cp. Simons v. Great Western By. Co., 
 U C. B. 1ST. S. 620, where the plaintiff was held not bound by a paper of special 
 conditions limiting the company's responsibility as carriers, which he had signed 
 •without reading it, being in fact unable at the time to read it for "want of his 
 .glasses', and being assured by the railway clerk that it was a mere form. "The 
 whole question was whether the plaintiff signed the receipt knowing what he 
 -was about:" per Cockburn, C. J., at p. 624. Where a person intending to exe- 
 cute his will has by mistake executed a. wrong document, such document can 
 not be admitted to probate, even if the real intention would thereby be par- 
 tially carried out : In the Goods of Hunt, L. E. 3 P. & D. 250. 
 
 (</) 3 M. & K. 699. | 
 
 (?) 3 M. & K. at pp. 717, 718: (but see the following note.) The M. K. 
 seems to have thought the estate did pass ;p. 713.) Henee the variance be- 
 tween the form of the decree affirmed and Lord Brougham's view of the case. 
 
 457 
 
4(M CHAP. yill. MISTAKE. 
 
 the defendant having constructive notice of the fraud, and no costs* 
 were given to the plaintiff, her conduct being considered not free 
 from negligence. 
 
 In Vorley v. Cooke (a) there were cross suits for foreclosure a,nd; 
 for cancellation of the mortgage deed. The alleged mortgagor had< 
 executed the mortgage deed at the instance of his solicitor, believ- 
 ing it to be a covenant to produce deeds. This mortgage so ob- 
 tained was assigned to a purchaser for valuable consideration with- 
 out notice, against whom, according to the universal rule above no- 
 ticed (p. 387), no relief could have been given had the deed been 
 only voidable. It was held that the deed was wholly void and no 
 estate passed by it, and decreed accordingly that it must be deliv- 
 ered up to be canceled. The similar decision in Ogilvie v. Jeaffre- 
 son (b) goes farther. For there the plaintiff, being a mortgagee, 
 executed assignments of the mortgaged premises which were mis- 
 represented to him as leases. He did therefore intend to convey 
 some interest in the property, though not the same interest, nor to- 
 tho same persons, as appeared by the deeds (c). And the case, so 
 far as it decided that these deeds were absolutely void, seems not 
 consistent with the limitation laid down in Thoroughgood's case 
 (p. 401 above) and recently affirmed by the Court of Appeal in 
 Chancery. 
 
 " When a man knows that he is conveying or doing something with his- 
 
 Stuart, V.-C.'s, remark (2 Giff. 381) applies to the M. R.'s judgment, not to 
 Lord Brougham's. 
 
 (a). 1 Giff. 280: and see the reporter's note, p. 237. This decision seems to- 
 be within the authority of Thoroughgood's case (which curiously enough was 
 not cited), at all events as since construed in Foster v. Mackinnon. However, 
 James, L. J., has .intimated an opinion that a plea of non est factum could not 
 have been sustained at law either here or in Kennedy v. Green : Hunters. Wal- 
 ters, 7 Ch. at p. 84. 
 
 (b) 2 Giff. 353. 
 
 (c) ["If a person signs and acknowledges a deed, supposing it to be a lease, 
 without reading the same, and thereby enables his grantee to sell to an inno- 
 cent purchaser for value, he can not as against the latter deny the validity of 
 the deed :'' Gavagan v. Bryant, 83 111. 376. 
 
 In Harris v. Smith, 40 Mich. 453, l: a bill to set aside a deed which conveyed 
 certain lands and a mortgage, on the ground that complainant had not exam- 
 ined it and did not know that it was a deed when she signed it, but was led to 
 believe that it was a formal instrument for dividing certain personal property, 
 was dismissed on her own showing that she had seen that it contained a de- 
 scription of land and reference to a mortgage."] 
 458 
 
FUNDAMENTAL ERROR : CONTRACTS OF LUNATICS, ETC. 405- 
 
 estate, but does not ask what is the precise effect of the deed, because he 
 is told that it is a mere form, and has such confidence in his solicitor as 
 to execute the deed in ignorance, then a deed so executed, *al- [405 
 though it may be voidable upon the ground of fraud, is not a void- 
 deed " (a). 
 
 Empson's case (b) seems distinguishable. There the applicant 
 bought land of a building society and executed without examina- 
 tion mortgage deeds prepared by the society's solicitor to secure the 
 price. These deeds contained recitals that he was a member, and 
 treated the whole transaction as an advance by the society to one 
 of its own members. He was never admitted or otherwise treated- 
 as a member. The Court held that he was not a contributory in 
 the winding up of the society. Here the matter of the fictitious 
 recitals was collateral to the main purpose of the transaction. 
 Observe that so far as the deed professed to treat Empson as a 
 shareholder.it was void, not only voidable; otherwise it would 
 have been too late to repudiate the shares after the winding up 
 order. 
 
 It has been laid down that a man of business who executes 
 "an instrument of a short and intelligible description can not be 
 permitted to allege that he execuied it in blind ignorance of its-, 
 real character " (c). But probably this is to be taken as an infer- 
 ence of fact rather than a statement of law; meaning not that the 
 party is estopped in law from offering evidence to this effect, but 
 that under such conditions his own evidence is practically worth 
 nothing. 
 
 We must here revert to the doctrine already stated in Ch. II.. p. 
 80, that the contract of a lunatic or a drunken man is not abso- 
 lutely void, but only voidable; for it seems at first sight not con- 
 sistent with the principles recognized by the Court of Common 
 Pleas in Poster v. Mackinnon (supra, p. 402). It was in fact held 
 
 (a) Hunter v. Walters, 7 Ch. 75; per Mellish, L. J. at p. 88. The attempt 
 might possibly be made to distinguish Ogilvie v. Jeafferson, on the ground that 
 in that ease the grantor was in complete error, if not as to the contents and 
 substance of his grant, yet as to the person of the grantee: whereas in Hunter 
 v. Walters the conveying parties knew not only that they were conveying some- 
 interest in the property their deed purported to deal with, but that they were- 
 conveying it to Walters. But sueh a distinction seems hardly tenable; [see r 
 .however, Terry v. Turtle 24 Mich. 206, 211-212.] 
 
 (6) 9 £q. 597, where no authorities appear to have been cited. 
 
 (c) Per Lord Chelmsford, O , Wythes v. Labouchere, 3 De 6. & J. 593, 601.: 
 
 459 
 
<406 CB.AP. VIII. MISTAKE. 
 
 '"by Lord Ellenborough (a) that " an agreement signed by a person 
 - in a state of complete intoxication is void, for such a person has no 
 : agreeing mind," and the judges of the Court of ^Exchequer [406 
 were at least inclined to the same view in Gore v. Gibson (b). 
 However, it is settled, as we have seen, by the decisions in Molton 
 v. Camroux (c) and Matthews v. Baxter (d) that the agreement of a 
 lunatic or drunken man known to be so by the other party is not 
 . a void agreement, but a voidable contract which after he becomes 
 ■.sober he may ratify so' as to make it binding on the other party, 
 and therefore on himself also. It is obviously reasonable that one 
 who offers to contract with a drunken man or a madman, knowing 
 his condition, should do so at his peril. If the drunkenness or 
 lunacy be not actually or presumably known to the other party 
 the contract is valid ; for a man who is apparently sane or sober 
 can not be supposed absolutely incapable of knowing what he is 
 about. But except in this case the other party must be able to see 
 that it is at least doubtful whether the man is capable of under- 
 standing the effect of a contract; if he chooses to disregard that 
 doubt, he can not afterwards complain of being taken at his word. 
 He is in a manner estopped from saying that by reason of the 
 
 • other's incapacity there is no contract which can be made binding 
 -on either of them. (e). The law says to him : Tou offer to contract 
 with a man whom you have reason to believe incapable of contract- 
 ing; and if he chooses to hold you to the bargain when he comes 
 to his right mind, it does not lie in your mouth to say there was no 
 
 -contract because he did not understand what he was about. If you 
 thought he did understand it, you can not complain of being in 
 the same situation as if such had been the fact. If you knew he 
 did not understand it, then (unless you meant to commit a fraud by 
 taking an unfair advantage of his condition) you were careless 
 enough to take the risk of his repudiating the contract, or you 
 thought the mere chance of a ratification worth having: still less 
 can you complain in that case that the contract is ratified instead 
 
 • of being repudiated. And you have the correlative benefit of be- 
 
 («) Pitt v. Smith, 3 Camp. 33. 
 
 (b) 13 M. & W. 623; 14 L. J. Ex. 151. 
 
 (c) 2 Ex. 487, in Ex. Ch. 4 Ex. 17; 18 L. J. Ex. 68, 356. 
 
 (d) L. K. 8 Ex. 132. 
 
 (e) [See Allen v. Berryhill, 27 la. 534, where the defendant attempted with- 
 out success to set up as a defense the plaintiff's insanity at the time of making 
 
 -(.he contract.] 
 4G0 
 
ERROR IN PERSONA. 407" 
 
 ing able to sue on the contract if it is ratified (a), or even if it is- 
 not repudiated within a reasonable time (6). 
 
 There may also be a fundamental error affecting not the whole 
 •substance of the transaction, but only its legal character. [407 
 It is apprehended that on principle a case of this kind must be 
 treated in the same way as those we have already considered : that 
 is, if the two parties to a transaction contemplate wholly different 
 legal effects, there is no agreement: but this will not prevent an 
 act done by either party from having any other effect which it can 
 have by itself and which it is intended to have by the party do- 
 ing it. 
 
 Thus if A. gives money to B. as a gift?, and B. takes it as a loan, 
 B. does not thereby become A.'s debtor (c), but the ownership of 
 the money is not the less effectually transferred to B. (d). Or " if" 
 
 (a) L. R. 8 Ex. 132. 
 
 (b) [That the deed of one non compos is not void, hut only voidable, see Allis- 
 v. Billings 6 Met. 415; Hovey v. Hobson, 53 Me. 451; Freed v. Brown, 55 Ind. 
 310; Elston v. Jasper, 45 Tex. 409; Arnold v. Richmond Iron Works, 1 Gray, 
 434 ; Gibson v. Soper, 6 Gray, 279 ; Howe v. Howe, 99 Mass. 88, 98 ; NicboL v.~ 
 Thomas, 53 Ind. 42; Scanlan v. Cobb, 85 111. 296; Eaton v. Eaton, 37 N. J. L. 
 108. Contra, that it is absolutely void; Van Deusen v. Sweet, .51 N. Y. 378;- 
 Parley v. Parker, 6 Oreg. 105; Estate of Desilver, 5 Rawle, 111; Rogers v. 
 "Walker, 6 Pa. St. 371. 
 
 In Gibson v. Soper, 6 Gray, 279, it was held that "an insane person or his 
 guardian may bring an action to recover land of which a deed was made by 
 him while insane, which deed has not since been ratified or affirmed, without - 
 first restoring the consideration to the grantee;'' ace. .Nichol v. Thomas, 53 Ind. 
 42 ; Hovey v. Hobson, 53 Me. 451 ; S. C, 55 Me. 256, 275. Contra, Eaton v. 
 Eaton, 37 N. J. L. 108, 118; Scanlan v. Cobb, 85 111. 296 ; and see Rusk v. Pen- 
 ton, 14 Bush, 490; Ashcraft v. De Armond, 44 la. 229.] 
 
 (c) But if B. communicates to A. his intention of treating the money as a 
 loan, and A. assents, then there is a good contract of loan. See Hill v. Wilson, 
 8 Ch. 888 ; per Mellish, L. J., at p. 896: where it was held that an advance at 
 first intended to be a gift had in this way been turned into a loan, and was a 
 good consideration for a promissory note subsequently given for the amount. 
 
 (d) Savigny, Syst. 3. 269 ; D. 44. 7 de o. et a. 3 § 1. Non satis autem est 
 <iantis esse numos et fieri accipientis, ut obligatio nascatur, sed etiam hoc animo- 
 dari et accipi ut obligatio constituatur. Itaque si quis pecuniam suam donandi 
 causa dederit nihi, quamquam et donantis fuerit, et mea fiat, tamen non obliga-- 
 bor ei, quia non hoc inter nos actum est As to the transfer of the property 
 being effectual, cp. D. 41. 1. de acq. rer. dom. 36. The reason is that to that 
 extent there is an intention free from error on the one part and an assent on 
 the other. But a wholly mistaken handing over of money or goods passes no- 
 property: Reg. v. Middleton, L. R. 2 C. O. R. 38, 44; Kingsford v. Merry (Ex~ 
 
 461 
 
-408 CHAP, VIII. MISTAKE. 
 
 A. sends a case of wine to B., intending to sell it, but fails to com- 
 municate his intention, and B. honestly believing it to be a gift 
 consumes it, there is no ground for holding B. to be responsible 
 for the price either in law or equity, if he be blameless for the mis- 
 take " (a). 
 
 We have seen, however (p. 391) that, mistake as to any particu- 
 lar effect of a contract depending on its true construction does not 
 discbarge the contracting party, or entitle him to act upon his own 
 ■ erroneous construction. 
 
 B. Error as to the person of the other party. 
 
 Another kind of fundamental error is that which relates, to 
 the person with whom one js contracting. This prevents any 
 real agreement from being formed, at least in all cases where it 
 408] *is material for the one party to know who the other is (b). 
 Such knowledge is in fact not material in a great part of the daily 
 
 Ch.), 1 H. & N. 503 ; 26 L. J. Ex. 83 ; [State v. Ducker, 8 Oregon, 394. Where 
 a person " purchased at an administrator's sale a drill machine, which, unknown 
 to all concerned, contained money and other valuables secreted there by the 
 decedent, it was held that the sale passed to the purchaser the right to the ma- 
 chine, and every constituent part of it, but not to the valuables contained in it, 
 which on discovery were to be held as treasure trove for the personal repre- 
 . sentatives of the deceasod owner :'' Hutmacher v. Harris' Adm'r., 38 Pa. St. 491. 
 
 The owner of. a gold coin issued by a private individual, and of the value of 
 ten dollars, passed it by mistake for half a dollar to A.; A. under a like mis- 
 take passed it to B. Held, that A. acquired no property in the gold piece, and 
 could convey none to B. : Chapman v. Cole, 12 Gray, 141 ; and see Gardner v. 
 Lane, 9 Allen, 492.] 
 
 (a) Benjamin on Sale, 326 [2d Am., ed. 373]; cp. the somewhat similar 
 case put by Bramwell, B., in Beg. u. Middleton, L. K. 2 C. C. B., at p. 56. 
 [The plaintiff, a warehouseman, had on storage two lots of flour, of different 
 grades, one belonging to, A., the other and more valuable to B. The defendant, 
 a baker, ordered a quantity of flour of C, who, to fill the order, bought of A. 
 his flour, and received from him an order on the plaintiff therefor. The plaint- 
 iff by mistake delivered to C. the flour of B-, which was then delivered to de- 
 fendant, who, in ignorance of the mistake, consumed it. It was held that the 
 defendant was not liable to the plaintiff for the value of the flour, or any part 
 thereof, cither in contract or tort: Hills v. Snell, 104 Mass. 173.] 
 
 (6) Savigny, Syst. 3. 209 ; [see Smi,th v. Wheatcroft,9 Ch. D. 223, 230.] If I 
 take a loan from A., thinking he is B.'s agent to lend me the money, when he 
 is in truth C.'s there- is no contract of loan, though C. may get back his mpney 
 by condictio (analogous to our action for money had and received)': D. 12. l.'de 
 reb. cred. 32. ■.-..■-,., 
 
 462 , 
 
ERROR IN PERSONA. 409 
 
 transactions of life, as for instance when goods are sold for ready- 
 money, or when a railway traveler takes his ticket: and then a 
 •mere absence of knowledge, caused by complete indifference as to 
 the personality or" the other party, can uot be considered as mis- 
 take, and there can hardly be any question of this kind. But, gen- 
 erally speaking, the intention of a contracting party is to create- an 
 obligation between himself and another certain person, and if that 
 intention fails to take its proper effect, it can not be allowed to take 
 the different effect of involving him without his consent in a eon- 
 tract with some one else. 
 
 There is a curious modern case in the Court of Exchequer, which 
 shows the general principle very clearly. An order for goods had 
 been addressed by the defendants to a trader named Brocklehurst, 
 who without their knowledge had transferred his business to the 
 plaintiff Boulton. The plaintiff supplied the goods without noti- 
 fying the change, and after the goods had been accepted sent an 
 invoice in his own name, whereupon the defendants said theykncw* 
 nothing of him. It was held that there was no contract, and that 
 he could not recover the price of the goods ; though possibly the 
 person for whom the order was meant might have adopted the 
 transaction if he had thought fit. The defendants might have had 
 a set-off against the person with whom they intended to con- 
 tract (a). 
 
 A similar case was Mitchell v. Lapage (not cited in Boulton v. 
 Jones (b). The action was assumpsit for not accepting goods. A 
 change had taken place in the seller's firm, and the broker had by 
 mistake given the old name instead of the new one. Gibbs, 0. J., 
 ruled as follows : " I agree with the defendant's counsel that he 
 can not be prejudiced by the substitution. Metcalfe [the broker] 
 has misdescribed the .names of his principals; and if by this 
 *mistake the defendant was induced to think that he entered [409 
 into a contract with one set of men and not with any other, and 
 if owing to the broker he has been prejudiced or excluded from. a 
 set-otf, it would be a good defense." It appeared, however, on the 
 facts in this case that the defendants had elected to treat the con- 
 
 (aj Boulton v. Jones, 2 II. & N. 564; 27 L. j: Ex. 117. Mr. Benjamin's re- 
 marks on this case are considered in an Appendix to the present chapter. 
 [Boston Ice Co. v. Pbtter, 123 Mass. 28, infra, p. 458; and see Randolph, Iron 
 Co. v. '"Elliott, 34 N. .1. L. 184 ; cp. Miadge v. Oliver, 1 Allen, 74; Orcutt v. Nel- 
 son, 1 Gray, -536, 542.] , .,,./,.; : ,..,. tsr 
 
 (b) HoltN. P. 253. .:..' ' ■;, 
 
 463 
 
409 CHAP. VIII. MISTAKE. 
 
 tract as subsisting after notice of the change : and the contract 
 seems to have been considered as voidable at the option of the 
 buyer rather than as absolutely void. Again, if a man enters into 
 a continuing contract with one of two partners alone, not knowing 
 of the existence of the partnership, and the partner with whom the 
 contract was made retires from the business, then the continuing 
 and previously undisclosed partner can not insist on the further 
 performance of the contract, even by joining the name of the orig- 
 inal contractor with his own as plaintiff. When it had become im- 
 possible for the contract to be performed by the person with whom 
 it was actually made, "the defendant had a right to object to its 
 being performed by any other person " (a). Thjs case was referred 
 to with approval in Hunter v. Humble (6), where Lord Denman 
 said : " You have a right to the benefit you contemplate from the 
 character, credit, and substance of the party with whom you con- 
 tract " (c). Again, if A. means to sell goods to B., and C. obtains 
 delivery of the goods by pretending to be B.'s agent to make the 
 contract and receive the goods (d~) ; or if C. obtains goods from 
 
 A. by using the name of B., a customer already known to A., or 
 one only colorably differing from it (e), there is not a voidable con- 
 tract between A. and C, but no contract at all ; no property passes 
 to C, and he can transfer none (save in market overt) even to an 
 innocent purchaser. 
 
 Whether any analogous doctrine applies to deeds is a question 
 on which there does not seem to be any clear authority. . We have- 
 
 (a) Bobson v. Drummond, 2 B. & Ad. 303 ; per Lord Tenterden, 0. J., p. 307 ; 
 [Gregory v. Wendell, 40 Mich. 432, 443 ; cp. British Waggon Co. v. Lea, 5 Q.. 
 
 B. D. 149.] 
 
 tb) 12 Q. B. 310, 317. 
 
 (c) [Winchester v. Howard, 97 Mass. 303, 305; Boston Ice Co. p. Potter, 123- 
 Mass. 28, 30.] 
 
 (d) Hardman v. Booth, 1 H. & C. 803; 32 L. J. Ex. 105; cp. Kingsford v.. 
 Merry, 1 H. & N. 503; 26 L. J. Ex. 83; Hollins v. Fowler, L. E. 7 H. L. 757, 
 
 ■ 763, 795 ; [Decan v. Shipper, 35 Pa. St. 239 ; and see Dean x>. Yates, 22 O. S. 
 388; Moody v. Blake, 117 Mass. 23; Barker v. Dinsmore, 72 Pa. St. 427. But 
 if A. sells goods to B., erroneously supposing him to be purchasing as agent for 
 
 C. but without any representation or pretense on the part of B. that he was 
 buying as agent for another, the contract is valid, and the title to the goods 
 passes to B. : Stoddard v. Ham, Sup. Ct. Mass., 11 C. L. J. 311.] 
 
 (e) Lindsay v. Cundy (C.A.), 2 Q. B. D. 96, revg. s. c. 1 Q. B. D. 348 [aff'd 
 in H. L. nom. Cundy v. Lindsay, 3 App. Cas. 459] ; Ex parte Barnett, 3 Ch, 
 
 D. 123. 
 
 464 
 
PERSONAL CONTRACTS. 410 
 
 seen that if a man seals and delivers (at any rate without culpable 
 negligence) a parchment tendered to him as being a * convey- [4]0' 
 ance of his lands of Whiteacre, which is in fact a conveyance of 
 his lands of Blackacre, it is not his deed and no estate passes. It 
 might be. argued that there is no reason why the insertion of a, 
 wrong party, if material, should not have the same result as the 
 insertion of wrong parcels : and that if a man executes a convey- 
 ance of Whiteacre to A. a? and for a conveyance of the same estate 
 to B., it is equally not his deed. But the judgment in Hunter v. 
 Walters (a) is certainly adverse to such a view (b). 
 
 It is on the same principle that a party to whom any thing is 
 due under a contract is not bound to accept satisfaction from any 
 one except the other contracting party in person where the nature 
 of the contract requires it (c), or otherwise by himself, his personal 
 representatives, or his authorized agent: and it has even been 
 thought that the acceptance of satisfaction from a third person is 
 not of itself a bar to a subsequent action upon the contract (cf). It 
 seems that the satisfaction must be made in the debtor's name in 
 the first instance and be capable of being ratified by him (e), and. 
 that if it is not made with his authority at the time, there must be 
 a subsequent ratification, which, however, need not be made before- 
 action (/). 
 
 But these refinements have not been received without doubt (g) : 
 and it is submitted that the law can not depart in substance,, 
 especially now that merely technical objections are so little favored, 
 
 (a) 7 Ch. 75 ; supra, p. 404. 
 
 (4) [But see Terry v. Tuttle, 24 Mich. 206, 212.] 
 
 (c) See Robinson v. Davison, L. K. 6 Ex. 209. 
 
 (d) [Clow v. Borst, 6 Johns. 37 ; Muller v. Eno, 14 N. T. 597, 605-6; Bleak- 
 ley v. White, 4 Paige, 654.] 
 
 (e) James v. Isaacs, 12 C. B. 791 ; Lucas v. Wilkinson, ] H. & N. 420; 26 L. 
 J. Ex. 13. 
 
 (/) Simpson v. Eggington, 10 Ex. 845 (ratification by plea of payment or at 
 the trial may be good). 
 
 (g) gee per. Willes, J., in Cook v. Lister, 13 C. B. N". S. 594; 32 L. J. C. P. 
 121, who considered the doctrine laid down in Jones «. Broadhurst (next note) 
 that payment by a stranger is no payment till assent, as contrary to a well 
 known principle of law: the civil law being the other way expressly, and mer- 
 cantile law by analogy: at the least assent ought to be presumed (cp. 10) 
 Ch. 416.) ...,. ,... 
 
 30 465 
 
411 CHAP. Tin. MISTAKE. 
 
 from the old maxim, " If I be satisfied it is not reason that I b& 
 again satisfied" (a). 
 
 So far the rule of common law. The power of assigning con- 
 tractual rights which has long been recognized in equity, and 
 411] *whioh under the Judicature Act. 1873 (s. 25, sub-s. G) will in 
 fiiture be recognized as effectual in law, does not constitute a direct . 
 exception. For we are now concerned only to ascertain the'exist- 
 ence or non-existence of a binding contract in the first instance. 
 -But on the other hand the limits set to this power (which we have 
 already considered under another aspect) (b) may be again shortly 
 referred to as illustrating the same principle. 
 
 Generally speaking, the liability on a contract. can not be trans- 
 ferred so as to discharge the person or estate of the original con- 
 tractor unless the creditor" agrees to accept the liability of another 
 person instead of the first (c). 
 
 The benefit of a contract can generally be transferred without 
 the other party's consent, yet not so as to put the assignee in any 
 better position than his assignor. Hence the rule that the assignee 
 is bound by all the equities affecting what is assigned. 
 
 Hence also the "rule of general jurisprudence, not confined to 
 ■cboses in action . . that if a person enters into a contract, and 
 without notice of any assignment fulfills it to the person with 
 whom he made the contract, he is discharged from his obliga- 
 tion " (d), and the various consequences of its application in the 
 equitable doctrines as to priority being gained by notice. 
 
 Again, rights arising out of a contract can not be transferred if 
 they are coupled with liabilities, or if they involve a relation of 
 personal confidence such that the. party whose agreement conferred 
 those rights must have intended them to be exercised only by him 
 
 (a) Fitzh. Ab. tit. Barre, pi. 166, repeatedly cited in tbe modern cases where 
 the doctrine is discussed. See in addition to those already referred to, Jones v. 
 Broadhurst, 9 0. 13. 193; Belshaw v. Bush, 11 0. B. 191, 267; [Leavitt v. Mor- 
 row, 6 O. S. 71 ; Webster v. "Wyser, 1 Stew. 184.] 
 
 ■(b) Ch. V., supraj p. 204, sqq; 
 
 (e) See p. 189 above. The exceptions 'to this are but partial. Thus the as- 
 signor of leaseholds remains liable on his express covenants r 1 "Wms.Saund. 
 298. A 'stronger 1 case is the transfer, of shares in a company not fully paid' • 
 up: but the special statutory law governing these transactions has not.altogether ' 
 lost si:>ht of the principles of the'general law : for (1) the' transferor is hot im- 
 mediately discharged; (2) the company 'is "not always - botthd' to register the 
 transfer. 
 
 (d) Per Willes, J., De Nicholls v. Saunders, L. R. 5 C. P. at p. 594. 
 466 
 
PERSONAL CONTRACTS. 412" 
 
 In whom he actually confided (a). Thus one partner can not 
 transfer his share so as to force a new partner on the' other mem- 
 bers of the firm without their consent : all he can give to an as- 
 signee is a right to receive what may be due to the assignor on the 
 balance of the partnership accounts, and if the *partnerShip [412 
 is at will, the assignment dissolves it ; if not, the other partners 
 may treat it as a ground for dissolution (6). 
 
 In the same way a contract of apprenticeship is prima facie a 
 strictly personal contract with the master (c) ; this construction 
 may be excluded however by the intention of the parties, e.g. if the 
 master's executors are expressly named (d), or b3' custom (e). 
 
 So if an agent appoints a sub-agent without authority, the sub- 
 agent so appointed is not the agent of the principal and can not be 
 an accounting party to him (f). A peculiar case involving a sim- 
 ilar question was Stevens v. Benning (g). It was there held that 
 a publisher^ contract with an author was not assignable-; without 
 the author's consent. The plaintiffs, who sought to restrain the 
 publication of a new edition of a book, claimed under instruments 
 of which the author knew nothing, and which purported to assign 
 to them all the copyrights, etc., therein mentioned (including the 
 ■copyright of the book in question) and all the agreements with 
 authors, etc., in which the assignors, with whose firm the author 
 had contracted, were interested. It was decided (1) that the in- 
 strument rulied on did not operate as an assignment of the copy- 
 
 (<?.) [Ciinton v. Fly, 10 Me. 292; Smalley v. Greene, Sup. Ct. la., 10 C. L. 
 ■J. 16; Lansden v. McCarthy, 45 Mo. 106.] 
 
 (i) Lindley, 1. 717-720. In the same way & sub-partner has no rights against 
 the principal firm; [Matthewson tf. Clarke, 6 How. 122; Cochran v. Terry, 8 
 W. &. S. 262; Miller v. Brigham, 50 Cal. 615; Horton's Appeal, 13 Pa. St. 66; 
 Marquand v. N. Y. M'f'g. Co., 17 Johns. 525.] 
 
 (c) [Davis v. Coburn, 8 Mass. 299 ; Tucker v. Magee, 18 Ala. 99 ; Stringfield 
 v. Heiskell, 2 Terg. 546; Futrell v. Vann,, 8 Ired. L. 402; Commonwealth v. 
 Leeds, 1 Ashm. 405; Biggs v. Harris, 64 N. C. 413. 
 
 A contract for personal services is not assignable; Chapin v. Jjongworth, 31 
 O. S. 421 ; Davenport v. Gentry's Adm'r., 9 B. Mon. 427.] 
 
 (d) Cooper v. Simmons, 7 H. & N. 707; 31 L. J. M. C. 138. 
 
 (e) Bac. Abr. Master and Servant, E. 
 
 (f) Cartwright v. Hateley, 1 Ves. jun. 292. Cp. Indian Contract Act, 1872, 
 s. 193; [De Bussche v. Alt, 8 Ch. D. 286, 310.] 
 
 {<]) 1 K. & J. 168 j 6 D. M: G. 223 ; [followed in Hole v. Bradbury, 12 Ch. D. 
 
 .886;] " '-> ■ •■•••' ;•-£-..•'..■ 
 
 V-.k. u ' «-..- ■ :■ 467 ■•'-'"" ' 
 
413 CHAP. VIII. MISTAKE. 
 
 right, because on the true .construction of the original agreement, 
 with the publishers the author had not parted with it,: (2) that it 
 did not operate as an assignment of the contract, because it was a 
 personal contract, and it could not be indifferent to the author into 
 whose hands bis interests under such an engagement were en- 
 trusted. In the plaintiffs, however trustworthy, the author had 
 not agreed or intended to place confidence : with them, however- 
 respectable, he'had n(3t intended to associate himself (a). 
 
 The law of agency, which we have already had occasion to con- 
 sider (6), presents much more important and peculiar exceptions. 
 413] Here again we find that the limitations under which *those 
 exceptions are admitted show the influence of the general rule; 
 thus a party dealing with an agent for an undisclosed principal is- 
 entitled as against the principal to the benefit of any defense he 
 could have used against the agent (c). 
 
 C. Error as to the subject-matter. 
 
 There may be fundamental error concerning: 
 
 a. The specific thing supposed to be the subject of the transac- 
 tion. 
 
 b. The kind or quantity by which the thing is described ; or 
 some quality which is a material part of the description of the 
 thing, though the thing be specifically ascertained. 
 
 The question however is in substance always the same, and may 
 be put in this form : It is admitted that the party intended to con- 
 tract in this way for something; but is this thing that for which 
 he intended to contract? The rule governing this whole class of 
 cases is fully explained in th.e judgment of the Court of Queen's 
 Bench, in the case of Kennedy v. Panama, &c, Mail Company (<i). 
 There were cross actions, the one to recover installments paid on 
 .shares in the company as money had and received, the other for a 
 call on the same shares. The contention on behalf of the share- 
 holder was " that the effect of the prospectus was to warrant to the 
 intended shareholders that there really was such a contract as is- 
 there represented (e), and not merely to represent that the company 
 
 (n.) See 1K.&J. at p. 174; 6 D. M, G-. at p. 229. 
 (6) Appendix to Gh. V., p. 224, above. 
 (c) [Supra, p. 228.] (d) L. E. 2 Q. B. 580. 
 
 (e) A contract with the postmaster-general of New Zealand on behalf of the- 
 Government, which turned out to be beyond his authority 
 46G 
 
ERROR AS TO SUBJECT-MATTER. 414 
 
 ■pona fide believed it; and that the difference in substance between 
 ehares in a company with such a contract and shares in a company 
 -whose supposed contract was not binding was a difference in sub- 
 stance in the nature of the thing; and that the shareholder was 
 ■entitled to return the shares as soon as he discovered this, quite in- 
 dependently of fraud, on the ground that he had applied for one 
 thing and got another" (a). 
 
 The Court allowed it to be good law that if the shares applied 
 for were really different in substance from those allotted, this 
 contention would be right. But it is an important part of the 
 *doctrine, both in our own law and in the civil law (b), that [414 
 the difference in substance must be complete. In the case of fraud, 
 a fraudulent representation of any fact material to the contract 
 gives a right of rescission ; but the misapprehension which pre- 
 -vents a valid contract from being formed must go to the root of the 
 -matter. In this case the misapprehension was not such as to make 
 the shares obtained substantially different from the shares described 
 in the prospectus and applied for on the faith of that description (c). 
 It was at most like the purchase of a chattel with a collateral war- 
 ranty, where a breach of the warranty gives an independent right- 
 of action, but in the absence of fraud is no ground for rescinding 
 the contract (d). 
 
 In the particular case of taking shares in a company the contract 
 is not in any case void, but only voidable at the option of the share- 
 holder if exercised within a reasonable time : this, although in 
 strictness an anomaly, is required for the protection of the com- 
 pany's creditors, who are entitled to rely on the register of share- 
 holders (e). 
 
 We also reserve for the present the question how the legal result 
 
 (a) Per Cur. at p. 586. 
 
 (J) P. 588, citing D. 18. 1. de cunt. emt. 9. 10, 11. By a clerical error, the 
 fragment of Ulpian (A. t. 1. 14), " Si aes pro auro veneat, non valet," etc., is 
 ascribed to Paulus in the report. 
 
 (e) So, where new stock of a company is issued and purchased on the suppo- 
 sition that it will have a preference, which in fact the company had no power 
 to give to it, this does not amount to a generic difference between the thing 
 -contracted for and the thing purchased: Eaglesfleld v. Marquis of London- 
 derry, 3 Ch. D. 693. 
 
 (d) Street v. Blay, 2 B. & Ad. 456; [see infra, p. 421, ad. Jin., and note (6).] 
 
 (e) See cases cited, p. 418, infra. 
 
 469 
 
415 CHAP. Till. MISTAKE. 
 
 is effected when the error is due to a representation made by the- 
 pther party. The exposition of the general principle, however, is- 
 not the less valuable : and we now proceed to give instances of its 
 application in the branches already mentioned. 
 
 a- Error as to the specific thing (in corpore). The most striking 
 recent case of this kind is Baffles v. Wiehelhaus (a). The declara- 
 tion averred an agreement for the sale by the plaintiff to the de- 
 fendants of certain goods, to wit, 125 bales of Surat cotton, to ar- 
 rive ex " Peerless " from Bombay, and arrival of the goods by the 
 said ship: Breach, non-acceptance. Plea, that the defendants 
 415] meant a ship called the " Peerless " which sailed *from Bom- 
 bay in October, and that the plaintiff offered to deliver, not any 
 cotton which arrived by that ship, but cotton which arrived by a dif- 
 ferent ship also called the " Peerless " and which sailed from Bom- 
 bay in December. The plea was held good, for '' The defendant only 
 bought that cotton which was to arrive by a particular ship ;" and 
 to hold that he bought cotton to nrrive in any ship of that name 
 would have been " imposing on the defendant a contract different 
 from that which he entered into" (b~). 
 
 With this may be compared Phillips v. Bistolli (c). The princi- 
 
 (a) 2 Hi & 0. 906; 33 L. J. Ex. 160. 
 
 (b) Per Pollock, 0. B., and Martin, B., 2 H. & C. at p. 907. [Where the ac- 
 tion was on an agreement to purchase a lot on Prospect street, in Waltham, . 
 and it appeared that there were two streets of that name, and that the defend- 
 ant intended to purchase a lot on one of said streets and the plaintiff intended 
 to sell a lot on the other, it was held that there was no contract; Kyle v. Kava- 
 nagh, 103 Mass. 356; and see Hazard v. Insurance Co., 1 Sumner, 218, 225.] 
 
 (c) 2 B. & C. 511. [In Harvey v. Harris, 112 Mass. 32, the defendants, 
 auctioneers, offered for sale at auction a quantity of damaged flour. It was di- 
 vided into two classes; one being but slightly damaged was offered for sale in 
 the original packages or barrels, and was to be sold by the barrel ; the other, 
 being more damaged, had been repacked, /and was offered as repacked flour or 
 "dough," and was to be sold by the pound. The flour was arranged in tiers or 
 lots numbered from 1 to 16, a space of about ten feet being left between the 
 flour to be sold by the barrel and the "dough," and was not in the room where 
 the sale took place. After the auctioneers had sold the first eight tiers by the 
 barrel, they stated to the company present that they now offered for sale the 
 repacked flour, taken out of some 1,500 barrels, and that, owing to inequality 
 of weights, they should sell it by the pound, with the privilege to the buyer of 
 taking any number of the remaining tiers. The plaintiff was the highest bid- 
 der, and being asked what he would take under his bid, said he would take the- 
 two tiers numbered 9 and 10. The defendants then proceeded and sold the re- 
 maining tiers to other buyers. Immediately after the sale it was discov— 
 
 470 
 
ERROR AS TO SUBJECT-MATTER : IN CORPORE. 41& 
 
 pal question was whether there had been & sufficient acceptance 
 within the Statute of Frauds of certain goods bought at an auction: 
 the decision was that under the circumstances this ought to have 
 been left as a question of fact to the jury, and that there must be 
 a new trial. The jury had found that there icas no mistake (no other 
 question having been left to them) : and it seems to ha-ye been ad- 
 mitted that if there had been an innocent mistake on the part of the 
 buyer as to the lot being sold or the price he was agreeing to give, 
 there would even independently of the Statute have been no con- 
 tract (a). In Malins v. Freeman (6) specific performance was re- 
 fused against a purchaser who had bid for and bought a lot differ- 
 ent from that he intended to buy (c) : but the defendant had acted 
 with considerable negligence, and the question was left open 
 whether there was not a valid contract on which damages might be 
 recovered at law. The case of Calverley v. Williams (d) shows 
 
 ered that tiers numbered 9 and 10 did not consist of "repacked flour," but of 
 ■flour in the original packages, which had been placed next to tier No. 8, by the 
 defendant's teamster, without the knowledge of the defendants or of the owner. 
 .Held, "that there was a mistake as to the identity of the article sold, and not 
 merely as to its quality," and that the case fell " within that class where, through 
 mistake, a contract which the parties intended to make fails of effect because- 
 they did not in fact agree as to the subject-matter;" and see Sheldon v. Capron, 
 3 R. I. 171 ; Cutts v. Guild, 57 N. Y. 229.] ■ 
 
 (a) The question whether there is an implied warranty of title on a sale of 
 chattels (Eichholz v. Bannister, 17 0. B. N. S. 708; 34 L. J. C. P. 105; see Ben- 
 jamin on Sale, 518) [2d Am. ed. 589, sqq.] is not without its analogy to this- 
 class of cases. Cp. the judgment of Willes, J. (dissenting) in Bagueley v. Haw- 
 ley, L. B. 2 C. P. 625, 629, that "the thing which the defendant sold was a 
 boiler and not a lawsuit." [It is well settled in this country that there is an im- 
 plied warranty of title on a sale of chattels in the actual or constructive pos- 
 session of the vendor; Shattuck v. Green, 104 Mass. 42; Storm v. Smith, 43 
 Miss. 497; Gross v. Kierski, 41 Cal. Ill; Thurston v. Spratt, 52 Me. 202; Hunt 
 v. Sackett, 31 Mich. 18; but where the chattels sold are at the time in the pos- 
 session of a third person, the purchaser buys at his peril; Scranton v. Clark, 39 
 N. Y. 220; Huntington v. Hall, 36 Mo. 501; Long v. Hickingbottom, 28 Miss. 
 772.] 
 
 (b) 2 Kee, 25. 
 
 (c) [" If plaintiff supposed she was selling a different tract of land, but the 
 defendants thought they were purchasing the tract actually conveyed, there 
 was a mutual mistake as to the subject-matter of the contract. In that case 
 the minds of the parties never met, and there was really no contract of sale at 
 all;" Barfielda. Price, 40 Cal. 535, 542.J '. 
 
 (d) 1 Ves. jun. 210. 
 
 471 
 
416 CHAP. VIII. MISTAKE. 
 
 •clearly however that the same principle is fully recognized by courts 
 of equity. The description of ah estate sold by auction included, a 
 piece which appeared not to have been in the contemplation, of the 
 parties, and the purchaser was held not to be entitled to a convey- 
 ance of this part. "It is impossible, to say, one shall bo forced to 
 give that price for part only, which he* intended to give for the 
 416] whole, or that 1 the other shall be obliged *to sell the whole for 
 
 ■what he intended to be the price of a part only The 
 
 question is, does it appear to have been the common purpose of 
 both to have conveyed this part?" So in Harris v. Pepperell (a), 
 "where the vendor had actually executed a conveyance including a 
 piece which he had not intended to sell, but which the defendant 
 maintained he had intended to buy: the Master of the Kolls, act- 
 ing in accordance with his own former decision in Garrard v. 
 Frankel (5) gave the defendant an option to have the whole con- 
 tract annulled or to take it in the form which the plaintiff, intended. 
 The converse case occurred in Bloomer v. Spittle (c), where a 
 reservation had been introduced by mistake (d). The principle of 
 
 (a) 5 Eq. 1. («) 30 Beav. 445. 
 
 (c) 13 Eq. 427. [In McKenzie' v. Hesketh, 7 Ch. D. 675, "the plaintiff of- 
 fered to take a lease of a farm belonging to the defendant at a rent of £500 per 
 annum, specifying in his tender the closes which he wished to take, with their 
 acreage, which amounted in the whole to 249 acres. The defendant's agent de- 
 sired to let only 214 acres with this farm, but he accepted the plaintiff's offer 
 without looking at the acreage included in it. He had in fact already let one 
 of the closes to another person. Another tender had been made by a former 
 tenant for the same farm, as comprising 235 acres, and the defendant's agent 
 .admitted in examination that he thought the plaintiff had tendered for the 
 same quantity of land as the former tenant. The plaintiff commenced an ac- 
 tion for specific performance against the defendant, and was willing to take a 
 lease of the 214 acres at a proportionately reduced rent. Hold, that the de- 
 fendant must grant the plaintiff a lease of 214 acres at a rent reduced from 
 JE500, in the proportion of 214 to, 235.'] 
 
 (d) [In Brown v. Lamphear, 35 Vt. 252, the plaintiff had conveyed to the 
 ■defendant a piece of land on which was a spring, from which the plaintiff's 
 Aqueduct supplied his own and other premises with water. The plaintiff had 
 not intended to part with his right to draw water from the spring, but by mis- 
 take no reservation was made in the de^d; the defendant, at the time of the 
 purchase, did not know of the. existence .of the spring. The defendant was 
 sriven an option either to make a conveyance, to the plaintiff entitling him to 
 use the water from the spring, or to reconvey the land on repayment of the 
 purchase-money; and see Lawrence v. Staigg, 8 E. I. 256 j Gilroy v. . Alis, 22 
 la. 174 ; Harrison v. Talbot, 2 Dana, 258.] 
 
 472 
 
ERROR AS TO SUBJECT-MATTER: IN CORPORE. 417 
 
 these eases seem to be that the Court will not hold the plaintiff 
 bound by the defendant's acceptance of a supposed offer which was 
 never really made, nor yet require the defendant to accept the real 
 -offer which was never effectually communicated to him, and which 
 ho perhaps would not have consented to accept; but will put 
 the parties in the same position as if the original offer were still 
 open (a). 
 
 The Court having come to the conclusion that the parties did not 
 rightly understand each other, "it is not possible without consent 
 to make either take what the other has offered" (b). 
 
 The case of Dacre v. Gorges (c), though shortly reported and no 
 reasons given for the judgment, appears to belong to this class. 
 The plaintiff and others, tenants in common, had agreed upon a 
 partition, the allotments to be ascertained on a valuation by sur- 
 veyors. Certain land to which the plaintiff was solely entitled was 
 by mistake included in the valuation and in the allotment made to 
 the plaintiff, so that the plaintiff thereby got less than her due sharo 
 of the rest. The allotments were conveyed according to this dis- 
 tribution, and the mistake not *discovered till several years [417 
 later. Specific restitution was then impossible, parts of the other 
 -allotments having been sold. But a suit was instituted for a money 
 compensation against the only one of the other tenants in common 
 who refused it, and it was held a plain case for relief. 
 
 Obviously there was never any agreement on the plaintiff's part 
 to be bound by an allotment which treated her sole property as 
 -common property (d) 
 
 (a) For the principle of these decisions compare Clowes v. Higginson' (next 
 note) and Leyland v. Illingworth (2 D. F. J. 252-3). In Scott v. Littledale, 8 
 B. & B. 815 ; 27 L. J. Q. B. 201 (a case on an equitable plea), the point of mis- 
 take (viz., the vendors of a specific cargo showing the purchaser a sample which 
 in fact was of a different hulk) did not go to the essence of the contract: the cor- 
 respondence of the bulk to the sample was only a collateral term which the 
 
 'purchaser might waive if he chose. The vendors, therefore, were at all events 
 not entitled to rescind the contract unconditionally. 
 
 (b) Clowes v. Higginson, 1 Ves. & B. 524, 535. 
 
 (c) 2 S. & St. 454: it does not appear how the lapse of time (eleven years) 
 was explained. 
 
 ('/) £In Trick v. Fulton's Exr's., 3 Gratt. .193, plaintiff, who was sole owner 
 of certain land,, under the belief, shared by her vendee,, that she owned only an 
 undivided interest .therein, conveyed to him all her interest in the land; he 
 conveyed to another. On discovery of the mistake, it was held that the land 
 should be reconveyed to her on her restoring the consideration paid.] 
 
 473 
 
418 CHAT. VUI. MISTAKE. 
 
 Similarly, " where therterms.of the contract are ambiguous, and 
 where, by adopting the construction putmpan them by the plaint- 
 iff, they would have an effect not contemplated by the defendant, 
 (but would compel him to include in the conveyance property not 
 intended or believed by him to come within the terms of the con- 
 tract," and the plaintiff refuses to have the contract executed in 
 the manner in which the defendant is willing to complete it, specific 
 performance can not be granted (a). 
 
 When the purchaser erroneously but not unreasonably supposes- 
 a portion of property to be included which is of no considerable 
 quantity, but such as to enhance the value of the whole, this is- 
 a " mistake between the parties as to what the property purchased 
 really consists of" so material that the contract will not be en- 
 forced (6). 
 
 If property not intended to be sold is included in a contract 
 ^ for sale by the ignorance or neglect of the vendor's agent, a court 
 of equity will not interfere either to enforce or to rescind the con- 
 tract (e) . 
 
 It lias been held in equity in Ship's case (d) and others following 
 it (e) that a material variance between the objects of a company 
 as described in the prospectus and in the memorandum of associa- 
 tion will entitle a person who has taken shares on the faith of the 
 prospectus to say that the concern actually started is not that 
 in which he agreed to become a partner, and to have his mime re- 
 418] moved from the register. But these decisions *have been 
 disapproved of in the House of Lords on the ground that " persons 
 who have taken shares in a company are bound to make themselves 
 acquainted with the memorandum of association, which is the basis 
 upon which the company is established " (/). The rights and lia- 
 
 (rc) Baxendale v. Seale, 19 Beav. 601. Cp. per Lord Eldon, Stewart v. Allis- 
 ton, 1 Mer. 26, 33 ; and per Sir W. Grant, Higginson v. Clowes, 15 Ves. 516, 524. 
 
 (b) Denny -u. Hancock, 6 Ch. 1, 14; [Arnold v. Arnold, 14 Ch. D. 270; cp. 
 Ellicott v. White, 43 Md. 145.] 
 
 (a) Alvanley v. Kinnaird, 2 Mac. & G. 1, 8; cp. Griffiths!). Jones, 15 Eg. 279. 
 
 (d) 2 D. J. S. 544. 
 
 («) Webster's case, 2 Eq. 741; Stewart's case, 1 Ch. 574; see Lindley on* 
 Partnership, 1. 109-121. 
 
 (/', Per Lord Chelmsford, Oakes v. Turquand, L. K. 2 H. L. 325, 351. See 
 »cc. Kent v. Freehold Land Co., 3 Ch'. 493; Hare's ca., 4 Ch. 503 ; Challis' ca.,. 
 t6-.Ch. 266 : all showing that the contract is in £uch cases not void, but only void- 
 able at tha option of the shareholder, which must be exercised within a reason- 
 47-1 
 
ERKOR AS TO SUBJECT-MATTER: KIND OR QUANTITY. 418 
 
 •bi'lities of persons, taking shares in companies are indeed altogether 
 of a peculiar kind; and the imposition of this special duty upon 
 them does not affect the general truth of the principle now being- 
 considered. 
 
 It has also been attempted to dispute the validity of a transfer 
 of shares because the transferor had not the shares corresponding to- 
 the numbers expressed in the transfer, although he had a sufficient 
 number of other shares in the company ; but it was held that the 
 transferee, who had in substance agreed to take fifty shares in the 
 company, could not set up the mistake as against the company's 
 creditors (a). " The numbers of the shares are simply directory 
 for the purposes (b) of enabling the title of particular persons to 
 be traced ; but one share, an incorporeal portion of the profits of* 
 the company, is the same as another, and share JSfo. 1 is not dis- 
 tinguishable from share No. 2 in the same way as a gray horse is- 
 distinguishable from a black horse " (c). 
 
 ft. Error as to kind, quantity, or quality of the thing. 
 
 A material error as to the kind, quantity, or quality of a subject- 
 matter which is contracted for by a generic description (whether 
 alone or in addition to an individual description) may make the 
 agreement void, either because there was never any real consent 
 of the parties to the same tiling, or because the thing or state of" 
 things to which they consented does not exist or can not be real- 
 ized (d). 
 
 able time. So, a person who applies for shares in a company not described as- 
 limited can not afterwards be beard to say that he did not mean to take shares 
 in an unlimited company : Perrett's ca., 15 Eq. 250. 
 
 (a) Ind's ca., 7, Oh. 485. (b) Sic in the report. 
 
 (c) Or house No. 2 in a street from house "No. 4 in the same street, though 
 of the same description and in equally good repair: Leach v. Mullelt, 3 Oar. & 
 P. 115; Dart V. & P. 139. 
 
 (d) [In Gardner v. Lane, 9 Allen, 492, it appeared that G. P. Wonsori & 
 Bros, sold to plaintiff 135 barrels of No. 1 mackerel, and gave him a bill of sale 
 thereof; no delivery was then made, but about two months later plaintiff called 
 for the mackerel, and G. P. Wonson went with him to a wharf, where a large 
 quantity was stored, and counted out eighty -five barrels of mackerel, which 
 both supposed to be No. 1, and these were delivered to plaintiff and left there: 
 that they then went to a store where there were barrels in rows, and Wonson 
 counting off two rows containing, as ho said, fifty barrels, marked the barrel at 
 the end of each row, and gave to plaintiff a storage receipt in the name of hit 
 iirhi of' Geo. F.- Wonson & Bros. Before the same were removed the defendant. 
 a creditor of Wonson & Bros., caused an attachment to be levied upon all of the 
 
 475 
 
419 CHAP. VIII. MISTAKE. 
 
 In Thornton v. Kempster (a) the common broker • of both 
 419] ^parties gave the defendant as buyer a sale note for Riga 
 Rhine hemp, but to the plaintiff as seller a note for St. Petersburg 
 dean hemp. The bought and sold notes we're the only evidence of 
 the terms of the sale. The Court held that " the contract must be 
 on the one side to sell and on the other side to accept one and the 
 same thing :" here " the parties so far as appeared had never agreed 
 that the one should buy and the other accept the same thing ; con- 
 sequently there was no agreement subsisting between them." 
 
 In a case of this kind however there is not even an agreement 
 in terms between the proposal and the acceptance. 
 
 A curious case of error in quantity happened in Henkle v. 
 Pape (6), where by the mistake of a telegraph clerk an order, in- 
 tended to be for three rifles only was transmitted as an order for 
 ^fifty. The only point in dispute was whether the defendant was 
 bound by the message so transmitted, and it was held that the 
 clerk was his agent only to transmit the message in the terms in 
 which it was delivered to him. The defendant had accepted three 
 •of the fifty rifles sent, and paid the price for them into Court: 
 therefore the question whether he was bound to accept any did not 
 arise in this case. It is settled however by former authority that 
 when goods ordered are sent together with goods not ordered, the 
 buyer may refuse to accept any, at all events " if there is any dan- 
 ger or trouble attending the severance of the two " (c). 
 
 property mentioned, and plaintiff thereupon replevied it. The two rows of 
 barrels in the store numbered but forty-eight, and contained only salt. A por- 
 tion of the quantity on the wharf was No. 1 mackerel, and a portion was No. 3: 
 Held, that no property in the barrels of No. 3 mackerel and of salt had passed 
 to plaintiff. The court say, p. 499 : '■ Where parties to a contract of sale agree 
 to sell and purchase a certain kind or description of property not yet ascer- 
 tained, distinguished, or set apart, and subsequently, a delivery is made by mis- 
 take of articles differing in their nature or quality from those agreed to be sold, 
 no title passes by such delivery. They are not included within the contract of 
 -sale; the vendor has not agreed to sell nor the vendee to purchase them; the 
 .subject-matter of the contract has been mistaken, and neither party can be held 
 to an execution of the contract to which he has not given his assent." Cp. S. C. 
 12 Allen, 39.] 
 
 (a) 5 Taunt, 786. (b) L. R. 6 Ex. 7. 
 
 (c) Levy v. Green, 8 E. & B. 575, in Ex. Ch. 1 E. & E. 969; 27 L.. J. Q. B. 
 
 Ill; 28 lb. 319; per Byles; J., 1 E. & E. at p. 976; and cp. Hart v. Mills, 15 
 
 M. & W. 85, where a new contract was, implied as to part of the goods which 
 
 was retained: but in that case the quality as well as the quantity of the goods 
 
 476 
 
ERROR AS TO SUBJECT-MATTER : KIND OR QUANTITY. 420 1 
 
 The principle of error in quantity preventing the formation of a 
 contract is applicable to an error as to the price of a thing sold or 
 hired (a). As there can not be even the appearance of a contract 
 when the acceptance disagrees on the face of it with the proposal, 
 this question can arise only when there is an unqualified accept- 
 ance of an erroneously expressed or understood ^proposal. [420 
 Such a case occurred in Webster v. Cecil (6), where the defendant 
 sent a written offer to sell property and wrote £1,100 for £1,200, 
 by a mistake in a hurried addition of items performed on a sepa- 
 rate piece of paper. This paper was kept by him, and produced 
 to the Court. On receiving the acceptance he discovered the mis- 
 take and at once gave notice of it. Under these circumstances 
 specific pei'formance was refused (c). If the origin of the mistake 
 had not been Wear, or if there had been any delay in giving no- 
 tice — or, perhaps, if it had not appeared, as it did, that the plaint- 
 iff had reason to know the real value of the property, and there- 
 fore that the letter he received could not express the defendant's- 
 real intention — it. is conceived that the defendant could not have 
 been heard to allege that he did not mean what he said (d). As 
 usual in such cases, the decision left the legal rights of the parties 
 
 sent was not in conformity with the order. [Barton v. Kane, 17 Wis. 37 ; cp. 
 Downer v. Thompson, 6 Hill, 208.] 
 
 (a) D. 19. 2. locati, 52. Si decern tibi loeem fundum, tu autem existimes- 
 quinque te conducere, nihil agitur. Sed et si ego minoris me locare sensero, tu 
 pluris te conducere, utique non pluris erit conductio quam quanti ego putavi.- 
 [Rupley v. Daggett, 74 111. 351; Greene v. Bateman, 2 Woodb. & M. 359; Bail- 
 road Go. v. Jackson, 24 Conn. 514; Bovegno v. Deffarari, 40 Cal. 459.] 
 
 (b) 30Beav. 62! 
 
 (c) [On a sale at auction of a block of land subdivided into separate lots, de- 
 fendant became the purchase!-. A bill for specific performance having been 
 filed, complainant proved that the premises were put up to be sold by the lot; 
 but it appearing that defendant not unreasonably supposed that the block 
 was offered as an entirety, and. that he intended his bid as the price for the 
 whole block, the bill was dismissed; Coles v. Bowne, 10 Paige, 526.] 
 
 (d) This statement would be unqualified but for what was said in Wy- 
 combe Bailway Company v. Donnington Hospital, 1 Oh. 268, 273, by an author- 
 ity entitled to the highest respect. But surely it can not be true as a general 
 proposition that a purchaser is never to have specific performance against a 
 vendor who swears that he understood the contract in a different sense: see- 
 Powell v. Smith, 14 Eq. 85; [Arnold v. Arnold, 14 Ch. D. 270, 284, supra, p- 
 •392.] 
 
 477 
 
-421 CHAP. VIII. MISTAKE. 
 
 open. It is submitted however that the agreement was void at 
 law. 
 
 But sometimes, even when the thing Which is the subject-matter 
 of an agreement is specifically ascertained, the agreement may be 
 avoided by material error as to some attribute of the thing. For 
 some attribute which the thing in truth has not may be a material 
 part of the description by which the thing was contracted for. If 
 this is so, the thing, as it really is, namely without that quality, is 
 not that to which the common intention of the parties was directed, 
 and the agreement is void. 
 
 An error of this kind will not suffice to make the transaction 
 void unless — 
 
 (1)- It is such that according to the ordinary course of dealing 
 and use of language the difference made by the fBsence of the 
 quality wrongly supposed to exist amounts to a difference in 
 kind (a) ; 
 
 (2) and the error is also common to both parties. 
 
 Thus we read "Mensam argento coopertam mihi ignoranti pro so- 
 421] lida vendidisti imprudens ; nulla est emtio. pecuniaqueeo*nom- 
 ine data condicetur" (6). Again, "Si aes pro auro veneat, non 
 valet" (c). "If a bar [is] sold as gold, but [is] in fact brass, the 
 vendor being innocent, the purchaser may recover'' (d). This, 
 however, is not to be taken too largely. What does pro auro, as and 
 for gold, imply as here used? It implies that the buyer thinks he 
 is buying, and the seller that he is selling, a golden vessel: and 
 further, that the object present to the minds of both parties as that 
 in which they are trafficking — the object of their common inten- 
 tion — is, not merely this specific vessel, but this specific vessel, be- 
 ing golden. Then, and not otherwise, the sale is void. 
 
 If the seller fraudulently represents the vessel as golden, know- 
 ing that it is not, the sale is (as between them) not void but voida- 
 ble at the option of the buyer. For if both parties have been in 
 innocent and equal error it would be unjust to let either gain any 
 advantage : but a party who has been guilty of fraud has no right 
 to complain of having been taken at his word ; and it is conceiva- 
 
 (a) Savigny, Syst. \ 137 (3. 283). (J) D. 18. 1. de cont. emt. 41, \ 1. 
 (c) I). eod. tit. 14, cited and adopted by the C6urt of Q, B. in Kennedy v. 
 Panama Mail, &c, Co., supra. 
 ■(dj Per Lord Campbel], C. J., Goinpertz >>. Bartlett, 2 E. & B. 849J 854; 23 
 L. J. Q. B. 65 ; [Terry „. Bissell, 26 Conn. 23 ; "Webb v. Odell, 49 N. Y. 583; 
 Hurd v. Hall, 12 Wis. 112, 136; cp. Littauer v. Goldman, 72 N. Y. 506.] 
 478 
 
ERROR AS TO SUBJECT-MATTER : QUALITY. 422 
 
 ble that it might be for the interest of the buyer to affirm the 
 •transaction, as if the vessel supposed by the fraudulent seller to be 
 •of worthless base metal should turn out to be a precious antique 
 bronze. Probably the results are the same if the buyer's belief is 
 founded even on an innocent representation made by the- seller. 
 This seems to be assumed by the language of the Court in Kennedy 
 v. Panama, &c, Mail Company (a). We shall recur to this point 
 presently. Or in an ordinary case the buyer may choose to treat 
 the seller's affirmation as a warranty, and so keep the thing and 
 recover the difference in value. 
 
 Again, if the sale of the specific vessel is made in good faith with 
 a warranty of its quality, the vendor must compensate the pur- 
 chaser for breach of the warranty, but the sale is not even voidable. 
 For the existence of a separate warranty shows that the matter of 
 the warranty is not a condition or essential part of the contract, but 
 the intention of the parties was to transfer the property in the 
 specified chattel at all events (6). Whether a particular affirmation 
 as to the quality of a specific thing sold be *only a war- [422 
 ranty, or the sale be " conditional, and to be null if the affirmation 
 is incorrect," is a question of fact to be determined by the circum- 
 stances af each case (c). 
 
 Accordingly, when the law is stated to be that " a party is not 
 bound to accept and pay for chattels, unless they are really such as 
 
 (a) L. K. 2 Q. B. 580, 587, p. 413, supra. 
 
 (b) [Freyman v. Knecht, 78 Pa. St. 141 ; Wright v. Davenport, 44 Tex. 164 
 Thornton v. Wynne, 12 Wheat. 183 ; Lyon v. Bertram, 20 How. 149; Light- 
 burn v. Cooper, 1 Dana, 273; Allen v. Anderson, 3 Humph. 581; Matteson v. 
 Holt, 45 Vt. 336; Day v. Pool, 52 N. Y. 416, 418-419; Carter „. Walker, 2 
 Rich, L. 40. 
 
 But in some states it is held, in accordance with the earlier English cases, 
 that where a chattel is sold with a warranty, for a- bread) thereof, even in the 
 absence of fraud, the purchaser may rescind the sale: Morse v. Brackett, 98 
 Mass. 205, 209 ; Boardman v. Spooner, 13 Alien, 353,361; Bryant v. Isburgh, , 
 13 Gray, 607 ; Dorr v. Fisher, 1 dish. 271; 274 ; Marston v. Knight, 29 Me. 341 ; 
 Rogers v. Hanson, 35 la. 283 ; Franklin v. Long, 7 G. & J. 407 ; Boothby v. 
 Scales, 27 Wis. 626, 6:-S6.] 
 
 (c) See per Wightman, J., Gurney v. Womersley, 4 F. & B. 133, 142; 24 L. 
 J. Q. B. 46: the cases collected in the notes to Cutter v. Powell, 2Sm. L. C. ; 
 Hey worth v. Hutchinson, L. Pt. 2 Q. B, 447; Azemar v. Casella, L. R'.. 2 C. P. 
 431, 677. The Roman law is the same as to a sale with warranty: D. 19. 1. de 
 act. emt. 21, jS 2. cxpld. by Savigny, Syst. 3. 287. The whole of Savigny's ad- 
 mirable exposition of so-called error in substantia in $) 137, 13iJ .(3. 276'sqq.), d£- 
 
 479 : 
 
423 CHAP. VIII. MISTAKE, 
 
 the vendor professed to sell, aud the vendee intended to buy" (a) 7 
 the' condition is not alternative but strictly conjunctive. A sale is. . 
 npt void merely because the vendor professed to sell, or tlie vendee 
 intended to buy, something of a different kind. It must be shown 
 that the object was in fact neither such as the Vendor professed to, 
 sell nor such as the vendee intended to buy. 
 
 And so in the case supposed the sale will not be invalidated 
 by the mistake of the buyer alone, if he thinks bo is buying gold ; 
 not even if the seller believes him to think so, and does nothing to 
 remove the mistake, provided his conduct does not go beyond pas- 
 sive aequieseense in the self-deception of the buyer. In a late 
 case (b) where the defendant bought a parcel of oats by sample be- 
 lieving them to-be old oats, and sought to reject them wben he 
 found they were new oats, it was held that a "belief on the part 
 of the plaintiff that the defendant was making a contract to buy 
 the oats of which he offered him a sample under a mistaken belief 
 that they were old would not relieve the defendant from liability 
 unless his mistaken belief was induced by some misrepresentation 
 423] of the plaintiff or ^concealment by him of a fact which it 
 became his duty to communicate. In order to relieve the defend- 
 ant it was necessary that the jury should find not merely that the- 
 plaintiff believed the defendant to believe that he was buying old 
 oats, but that ho believed the defendant to believe that he, the- 
 pluintiff, was contracting to sell old oats." " There is no legal ob- 
 ligation on the vendor to inform the purchaser that he is under a mis- 
 take. not induced by the act of the vendor" (c) ; and therefore the 
 question is whether we have to do merely with a motive operating 
 on the buyer to induce him to buy, or with one of the essential 
 
 serves careful study. Of course the conclusions in detail are not always the- 
 same as in our law : and the fundamental difference in the rules as to the ac- 
 tual transfer of property in goods sold (as to which see Blackburn on the Con- 
 tract of Sale, Part 2, Ch. 3) must not he overlooked. But this does not affect- 
 the usefulness and importance of the general analogies. 
 
 (a) Per Cur., Hall v. Oonder, 2C.B.B.S. 22, 41 ; 26 L. J. C. P. 138, 143. 
 
 (b) Smith v. Hughes, L. B. 6 Q. B. 597: per Cockburn, U. J., p. 603; per 
 Hannen, J., p. 610. The somewhat refined distinction here taken does not 
 seem to exist in the civil law. D. 19 1. de act. emt. 11, § 5: Savigny, 3. 293, ac- 
 cording to whom it makes no difference whether there be on the part of th* 
 vendor ignorance, passive knowledge, or even fraud: the sale being wholly 
 void in any case. 
 
 (c) Ibid., per Blackburn, J., p. 607. 
 
 480 
 
\ 
 ERROR AS TO SUBJECT-MATTER : QUALITY. 424 
 
 conditions of the contract (a). " Videamus, quid inter ementem et. 
 vondentem actum sit" (6) : " the intention of the parties governs in. 
 the making and in the construction of all contracts" (c) : this is 
 the fundamental rule by which all questions, even the most refined,, 
 on the existence and nature of a contract must at last come to be-- 
 decided. 
 
 Another curious case of this class is Cox v. Prentice (d). The- 
 declaration contained a count in assumpsit as on a warranty, and 
 the common money counts. The nature of the material facts will 
 sufficiently appear by the following extract from the judgment of 
 Bayley, J. :— 
 
 " What did the plaintiffs bargain to buy and the defendants to sell? 
 They both understand [«'c] that the one agreed to buy and the other to- 
 sell a bar containing such a quantity of silver as should appear by the 
 assay, and the quantity is fixed by the assay and paid for; but through, 
 some mistake in the assay the bar turns out not to contain the quantity 
 represented but a smaller quantity. The plaintiff therefore may rescind, 
 the contract and bring money had and received, having offered to return 
 the bar of silver." 
 
 And, by Dampier, J. : — " The bai'gain was for a bar of silver of 
 the quality ascertained by the assay-master, and it is not of that 
 quality. It is a case of mutual error." These judgments went 
 farther than was necessary to the decision (e), for a verdict had 
 been taken only for the difference in value (/). 
 
 *It is important to distinguish from the cases above con- [424- 
 sidered another class where persons who have contracted for the 
 purchase of real property or interests therein have been held en- 
 
 (<z) Ibid., per Gockburn, C. J. 
 
 (6) Julianus in D. 18. 1. de cont. emt. 41 pr. 
 
 (c) Per Cur., Bannerman v. "White, 10 C. B. N. S. 844, 860; 31 L. J. C. P. 
 28, 32. 
 
 (d) 3 M. & S. 344. 
 
 (e) And certainly farther than the civil law : see D. 18. 1. de cont. emt. 14^ 
 •where though a bracelet " quae aurea dicebatur " should be found " magna ex. 
 parte aenea," yet " venditionem esse constat ideo, quia auri aliquid habuit"." 
 
 (/) [When a piece of land, by mistake supposed to contain a given number 
 of acres, is sold and paid for at so much an acre, and turns out to contain either 
 more or less, the vendor or purchaser, as the case may be, can recover for the- 
 difference in value : Solinger v. Jewett, 25 Ind. 479 ; Ply v. Brooks, 64 Ind. 50 ; 
 Paige v. Sherman, 6 Gray, 511 ; Jenks v. Fritz, 7 W. & S. 201 ; Tarbell v. Bow- 
 man, 103 Mass. 341 ; "Wilson v. Bandall, 67 N. T. 338; and see Devine v. Ed- 
 wards, 87 111. 177.] 
 
 31 481 
 
424 CHAF. Vin. MISTAKE. 
 
 titled at law (a) as well as in equity (6) to rescind the contract on 
 the ground of a misdescription of the thing sold in some particular 
 materially affecting the title,, quantity, or enjoyment of the estate. 
 In some of these cases language is used which, taken alone, might 
 lead one to suppose the agreement absolutely Void ; and in one. or 
 two (e.g., Torrance v. Bolton) there is some real difficulty in draw- 
 ing the line. But they properly belong to the head of Misrepre- 
 sentation, or else (which may be the sounder view where applica- 
 ble) (e) are cases where the contract is rather broken than dis- 
 solved. A man is not bqund to take a house or land not corre- 
 sponding to the description by which he bought it any more than 
 he is bound to accept goods of a different denomination from what 
 he ordered, or of a different quality from the sample. Mistake 6r 
 no mistake, the vendor has failed to perform his contract. The 
 purchaser may say: "You offered to sell me a freehold: that 
 means an unincumbered freehold, and I am not bound to take a 
 title subject to covenants " (d) ; or. " You offered to sell an abso- 
 lute reversion in fee simple : I am not to be put off with an equity 
 of redemption and two or three Chancery suits (e). I rescind the 
 contract and claim back my deposit." Cases of this kind, there- 
 fore, are put aside for the present. 
 
 Again, an agreement is void if it relates to a subject-matter 
 contemplated by the parties as existing but which in fact does : 
 not exist. Herein, as before, every thing depends on the inten- 
 tion of the parties, and the question te whether the existence of 
 
 (a) Flight i). Booth, 1 Bing. (N. C.) 370 ; Phillips v. Caldcleugh. L. R. 4 Q. 
 B. 159. 
 
 (b) Stanton v. Tattersall, 1 Sm.. & G. 529 ; Earl of Durham v. Legard, 34 
 Beav. 611 ; Torrance v. Bolton, 8 Ch. 118. See authorities collected in Dart, V. 
 <fc P. 114 sqq. 
 
 (c) The difference is purely theoretical ; for if it be an actual breach of con- 
 tract the purchaser can recover only nominal damages : Bain v. Fotbergill, L. 
 B. 7 H. L. 158, confirming Flureau' ».' Thornhill, 2 W: Bl. 1078. [As to this, 
 .see, however, 1 Sedgwickon Meas. of Damages, 7th ed. 406-430.] The anal- 
 ogy suggested in the text should perhaps' be confined to cases where the mis- 
 description goes to matter of title. Onecan not compare a specific sale of land 
 to a non-specific sale of goods: but the corotract is not' merely to sell specific 
 land, but to give a certain kind of title: -'&■< t "«-> &■ 
 
 (d) Pliillips-u. Caldcleugh, L. E. 4 Q. B. 15'9. ! - "'**'' 
 
 "(e) Torrance v. Bolton, 8 Ch.118: see at p. 124; [Weston v. Savage, 10 Ch, 
 D. 736, 741-742.] 
 482 
 
AS TO EXISTENCE OF SUBJECT-MATTER. 425 
 
 *the thing contracted for was or was not presupposed as es- [425 
 «ential to the agreement (k): No precise rule can be laid down for 
 answering this question, though typical cases may be stated by 
 way of illustration. We .can not do better than begin with the 
 rule and illustrations as given in the Indian Contract Act, adding 
 the principal authorities in support of the several positions. The 
 main part of a. 20 is as follows : 
 
 Where both the parties to an agreement are under a mistake as 
 to a matter of fact essential to the agreement, the agreement is 
 void. 
 
 The illustrations are these : — 
 
 a. A. agrees to sell to B. a specific cargo of goods supposed to be 
 on its way from England to Bombay. It turns out that, before the 
 -day of the bargain, the ship conveying the cargo had been cast away 
 and the goods lost. Neither party was aware of these facts. The 
 agreement is void. 
 
 This was in substance the decision of the House of Lords in Cou- 
 turier v. Hastie (6), which is always regarded as the leading case 
 on this head. 
 
 6. A. agrees to buy from B. a certain horse. It turns out that 
 the horse was dead at the time of the bargain, though neither party 
 was aware of the fact. The agreement is void (c). 
 
 In like manner a sale of shares in a company will not be en- 
 forced if at the date of the 'sale a petition for winding up has been 
 presented of which neither the vendor nor the purchaser knew (<2). 
 But the ignorance of the buyer only in similar circumstances does 
 
 U) Cp. Story, Eq. Jur. § 142. 
 
 (b) 5 H. L. C. 673 ; [See King v. Doolittle, 1 Head. 77; Eice v. Dwigbt Mfg. 
 Co., 2 Cush. 80, 88; Marvin v. Bennett, 8 Paige, 312, 321 ; McGoren v. Avery, 
 37 Mich. 120; Gibson v. Pelkie, 37 Mich. 380. . , , , , 
 
 ..Where one having a claim against a foreign government, in ignorance that 
 it had been allowed, gave to another an irrevocable power of attorney to pros- 
 -ecute it, and entered into a contract to pay him a percentage of what might be 
 recovered, in consideration of his agreeing to use his utmost efforts to bring 
 the claim to a favorable issue, the contract was ordered to be canceled on the 
 ground of mistake: Allen's. Hammond, 11 Pet. 63.] - ' 
 
 '(ft) Pothier, Contrat de Ventre, £ 4, cited 5 H. L. C. 678, Sa'ys: "Si done, ig- 
 norant que mon cheval est mort, je le vends a quelqu'un, il n'y aura pas un con- 
 trat de vente, faute d'u'ne ehose qui 6n soit 1'objet/' Op. Code Civ. 1601. "Si 
 au moment de la vente la chose, vendue 6ta,it pe>ie en .totality,. la vente ser.ait 
 nulle:"= Italian Code, 1461 ; [AJJen.u. Hammond, 11 Pet. 63,-71.] 
 
 (d) Emmerson's ca., 1 Ch. 433, expld. 3 Ch. 391, per Page Wood, L. J. 
 
 483 
 
426 CHAP. VIII.. MISTAKE. 
 
 not of itself invalidate the sale. It seems however that the sale- 
 would be voidable on the ground of fraud if the seller knew of the- 
 buyer's ignorance, but that such knowledge should be distinctly and 
 completely alleged (a). An agreement to take new shares in a 
 426] company which the company has no *powor to issue is also- 
 void, and money paid under it can be recovered back (b). 
 
 c. A. Being entitled to an estate for the life of B. agrees to sell it 
 to C. B. was dead at the time of the agreement, but both parties- 
 were ignorant of the fact. The agreement is void. 
 
 This was so held at law in Strickland v. Turner (c). There, at 
 the date when the sale of a life annuity was completed, the life- 
 had dropped unknown to both vendor and purchaser ; it was held 
 that the purchase-money might be recovered back as on a total, 
 failure of consideration. So in Hitchcock v. Giddings (d) a re- 
 mainderman in fee expectant on an estate tail had sold his interest,, 
 a recovery having been already suffered unknown to the parties : a 
 bond given to secure the purchase-money was set aside. " Here is 
 an estate which if no recovery had been suffered was a good one.. 
 Both parties, being equaliy ignorant that a recovery had been suf- 
 fered, agree for the sale and purchase of the estate, and the pur- ' 
 chaser is content to abide the risk of a recovery being subsequently 
 suffered. He conceives however he is purchasing something, that- 
 he is purchasing a vested interest. He is not aware that such inter- 
 est has already been defeated. . . . [The defendant] has sold that 
 which he had not — and shall the plaintiff be compelled to pay for- 
 that which the defendant had not to give ?" (e). More recently, in 
 Cochrane v. Willis (/), an agreement had been made between a re- 
 mainderman and the assignee of a tenant for life of a settled estate, 
 founded on the assignee's supposed right to cut the timber. The 
 tenant for life was in fact dead at the date of the agreement. The- 
 Court refused to enforce it as having been entered into on the sup- 
 position that the tenant for life was alive, and only intended to take- 
 effect on that assumption. So a life insurance can not be revived- 
 
 (u) Bowman v. Budge, L. R. 3 Q. B. 689, 697. 
 
 (6) Bank of Hindustan e. Alison, L. K. 6 0. P. 54, in Ex. Ch., lb. 222; Ex 
 parte Alison, \b Eq. 394; 9 Ch. 1, 24; Ex parte Campbell, &e., 16 Eq. 417; 9- 
 Ch. 1, 12; and see Lindley, 2. 1381. 
 
 (e) 7 Ex. 208; 22 L. J. Ex. 115; [Allen v. Hammond, 11 Pet. 63, 71.] 
 
 (d). 4 Pri. (Ex. in Eq.) 135, and better in Dan. 1. 
 
 («) Dan. at p. 7. (/) 1 Ch. 58. 
 
 484 
 
AS TO EXISTENCE OF STJBJECT-MATTER. 427 
 
 'by the payment of a premium within the time allowed for that 
 jjurpose by the original contract, but after the life has dropped un- 
 known to both insurers and assured, although it was in existence 
 when the premium became due, and although *the insurers [427 
 have waived proof of the party's health, which by the terms of re- 
 newal they might have required : the waiver applies to the proof 
 of health of a man assumed to be alive, not to the fact of his being 
 -alive (a). 
 
 The case of Bingham v. Bingham (6), which was relied on in the 
 argument of Cochrane v. Willis, and in the judgment of Turner, 
 L. J., must be considered as belonging to this class. As in Coch- 
 rane v. Willis the substance of the facts was that a purchaser was 
 -dealing with his own property, not knowing that it was his. This 
 -consideration seems to remove the doubt expressed by Story (c), 
 who criticises it as a case in which relief was given against a mere 
 mistake of law. But, with all respect for that eminent writer, his 
 objection is inapplicable. For the case does not rest on mistake as 
 ■ground of special relief at all. There was a total failure of the 
 •supposed subject-matter of the transaction, or perhaps we should 
 rather say it was legally impossible. We have already pointed' out 
 the resemblance of this class of cases to some of those considered 
 in the last chapter. The one party could not buy what was his 
 own already, nor could the other (in the words of the judgment as 
 reported) be allowed "to run away with the money in considera- 
 tion of the sale of an estate to which he had no right '' (d). So 
 we find it treated in the Roman law quite apart from any questio'n 
 of mistake, except as to the right of recovering back m< ney paid 
 under the agreement. A stipulation to purchase one's own prop- 
 erty is " natm-ali ratione inutilis " as much as if the thing was de- 
 stroyed, or not capable of being private property (e). 
 
 (a) Prjtcoard v. Merchants' Life Assurance Society, 3 0. B. N. S. 622; 27 L. 
 J. C. P. 169 ; [Insurance Co. v. Kuse, 8 Ga. 534, 545.] 
 (4) 1 Ves. Sr. 126, Belt's supp. 79. 
 
 (c) Eq. Jurisp. \ 124. 
 
 (d) The case is considered, among other authorities, and upheld on the true 
 ground, in Stewart v. Stewart, 6 CI. & P. at p. 968 ; cp. the remarks of Hall V.- 
 C, in Jones v. Clifford, 3 Oh. D. 779, 790. 
 
 (e) Gaius in D. 44. 7. de. obi. et act. 1, \ 10. Suae rei emtio non valet, sive 
 sciens, sive ignorans emi; sed si ignorans emi, quod solvero repetere potero, 
 
 -quia nulla obligatio fuit : D. 18. 1. de cont. emt. 16 pr. 
 
 485 
 
428 CHAP, VIII. MISTAKE. 
 
 Such an agreement is naught both at law and, in equity, without- 
 reference to the belief or motive, which determjned.it. 
 
 Moreover the difficulty was cleared up by Lord Westbury,. 
 though not quite, on this broad ground, in a repent ease exactly 
 similar in principle. In Cooper v. Phibbs (a) A. agreed to take- 
 428] *a lease of a fishery from B., on the assumption that A. had 
 no estate and B. was tenant in fee. Both parties were mistaken at 
 the time as to the effect of a previous settlement ; and in truth A. 
 was tenant for life and B. had no estate at all. It was held that 
 this agreement was invalid. Lord Westbury stilted the ground of 
 the decision as follows : — "The result therefore is that at the time 
 of the agreement for the lease which it is the object of this peti- 
 tion (6) to set aside, the parties dealt with one another under a 
 mutual mistake as to their. respective rights. The petitioner did 
 not suppose that he was, what in truth he was, tenant for life of" 
 the fishery. The other par-ties acted under the impression given- 
 to them by their father that he (their father) was the owner of the 
 fishery and that the fishery had descended to them. In such a 
 state of things there can be no doubt of. the rule of a court of 
 equity with regard to the dealing with that agreement. It is said r 
 ' Ignorantia juris hand excusat;' but in that maxim the word 'jus' 
 is used in the sense of denoting general,. law, the ordinary law of 
 the country. But when the word 'jus' is used in the sense of de- 
 nptirig a private right, that maxim has no application. . Private- 
 right of ownership is a matter of fact ; it may be the result also of 
 matter of law ; but if parties contract under a mutual mistake and 
 misapprehension as to their relative and respective rights, the re- 
 sult is that the agreement is liable to be set aside as having pro- 
 ceeded upon a common mistake. Now that was the case with 
 these parties — the respondents believed themselves to be entitled 
 to the property, the petitioner believed that he was a stranger to 
 it, the mistake is discovered and the agreement can not stand " (c). 
 
 (a) L. R. 2 H. L. 149. 
 
 (6) A Cause Petition in the Irish Court of Chancery. 
 
 (c) L. R. 2 H. L. 170; [Jones v. Clifford, 3 Ch. D. 779. In Martin v. MeCor- 
 miek, 8 N. Y. 331, the plaintiff was the owner in fee simple of a house and 
 lot; both he and defendant supposed, however, that plaintiff's title was sub- 
 ject to a term for a hundred years in the .defendant.. Plaintiff pajd defend- 
 ant $1,800 for an assignment of the supposed term ; held, that he could recover- 
 the money as paid by mistake, Lawrence v. Beaubien, 2 Bailey, 623 ; Jordan. 
 v. Stevens^ 51 Me. 78 ; supra, p. 395.] 
 486 
 
AS TO EXISTENCE OF SUBJECT-MATTER. 429 
 
 The principle here" laid down also covers Broughton v. Hutt (a); 
 There the heir at law of a shareholder in a company joined with 
 several other shareholders in giving a deed of indemnity to the- 
 directors, believing that the shares had descended to him as real 
 estate, whereas they were personal estate. The deed was .hold- 
 to be void as against him in equity at all events, and probably 
 at law (&). " The plaintiff never intended to be bound unless he 
 *was a shareholder, and the defendants never intended him [429? 
 to be bound unless he was so." Here the mistake was plainly one 
 of fact within Lord Westbury's definition, namely as to the char- 
 acter of the shares by the constitution of the particular company. 
 It is submitted, however, that an erroneous fundamental assump- 
 tion made by both parties even as to a general rule of law might 
 well prevent any valid agreement from being formed (c). ' 
 
 In the same way an agreement to assign a lease for lives would 
 be inoperative if all the lives had dropped unknown to the par- 
 ties. But the ( only thing which the parties can here be supposed, 
 in the absence of expressed .condition or warranty, to assume as- 
 essential is that the lease is subsisting, that is, that at least one of 
 the lives is, not that they all are still in existence. Where the as- 
 signor of a lease for the lives of A., B., and C, expressly cove- 
 nanted with the assignee that the lease was a subsisting lease for 
 the lives of A. B. and 0. and the survivors and survivor of them, 
 this was held to be only a covenant that the lease was subsisting, 
 and not that all the lives were in being at the date of the assign- 
 ment (d). That is, his contract was interpreted, according to the 
 general practice and understanding of conveyancers, as a contract 
 to transfer an existing lease for three lives, not necessarily a lease- 
 for three lives all existing. 
 
 If in any state of things otherwise resembling those just now 
 discussed we find, instead of ignorance of the material fact on both 
 sides, ignorance on the one side and knowledge on the other, them 
 
 («) 3 De G-. & J. 501. 
 
 (6) [In Gross v. Leber, 47 Ba. St. 520, the sons and administrators of one- 
 .who had been a trustee, supposing that because they were his administrators, 
 they were also trustees in the place of their father, executed a bond for the 
 payment of a debt due by the cestui que trust as they supposed was their duty 
 as such trustees; it was held that equity would relieve against the enforcement 
 of the bond.] 
 
 (e) Cp. McCarthy v. Decaix, 2 Buss. & My. 614. 
 
 (d) Coates v. Collins, L. K. 6 Q. B. 469, in Ex. Ch. 7 Q. B. 144. 
 
 487 
 
430 CHAP. VIII. MISTAKE. 
 
 the matter has to be treated differently. Suppose A. and B. are 
 the contracting parties ; and let us denote by X. a fact or state of 
 lacts materially connected with the subject-matter of the contract, 
 which is supposed by A. to exist, but which in truth does not exist, 
 and is known by B. not to exist. Then we have to ask these ques- 
 tions : — 
 
 1. Does A. intend to contract only on the supposition that X. 
 «xists ? which may be put in another way thus : If A.'s attention 
 were called to the possibility of his belief in the existence of X. 
 being erroneous, would he require the contract to be made condi- 
 tional on the existence of X. ? 
 430] *2. If so — Does B. know that A. supposes X. to exist? 
 
 3. If B. knows this — Does he also know that A. intends to con- 
 tract only on that supposition ? 
 
 If the answer to any one of these questions is in the negative, it 
 seems there is a binding contract (a). But itis to be observed that 
 a negative answer to the second question will generally require 
 strong evidence to establish it, and that if this question be an- 
 swered in the affirmative, an affirmative answer to the third ques- 
 tion will often follow by an almost irresistible inference. Thus if 
 a purchaser of a reversionary interest subject to prior life interests 
 knows that one of these has ceased, and nothing is said about it at 
 the time of the contract, then the purchaser can hardly expect any 
 body to believe either that he himself overlooked the material im- 
 portance of that fact, or that he was not aware of the vendor's ig- 
 norance of it, or that he supposed that the vendor would not treat 
 it as material (b). So in the case already cited (c) of the sale of 
 shares after a petition for the winding-up of the company had been 
 presented it seems that a distinct allegation in the pleadings that 
 the seller knew of the buyer's ignorance of that fact would have 
 been sufficient to constitute a charge of fraud. 
 
 If the questions above stated be all answered in the affirmative, 
 either by positive proof or by probable and uncontradicted pre- 
 sumption from the circumstances, then it may be considered either 
 that the case becomes one of fraud, or at least that the party who 
 knew the true state of the facts, and also knew the other party's in- 
 tention to contract only with reference to a supposed different state 
 
 (a) Smith v. Hughes, L. K. 6 Q. B. 597, supra, p. 422. 
 
 (6) See Turner v. Harvey, Jao. 169; [Allen v. Hammond, 11 Pet. 63, 71.] 
 
 (c) bowman v. Rudge, L. K. 3 Q. B. 689 
 
 4ri8 
 
FUNDAMENTAL ERROR AND MISREPRESENTATION. 4Ci 
 
 ■of facts, is precluded from denying that he understood the contract 
 in the same sense as that other, namely as conditionalon the exist- 
 ence of the supposed state of facts. 
 
 On a similar principle (as we have already mentioned inciden- 
 tally) it is certain that where fundamental error of one party is 
 caused by a fraudulent misrepresentation, and probable that where 
 it is caused by an innocent misrepresentation on the part of the 
 other, that other is estopped from denying the validity *of [431 
 the transaction if the party who has been misled thinks fit to af- 
 firm it. 
 
 Does it follow that the contract is in its inception not void, but 
 voidable at the option of the party misled (a) ? Not so : for the 
 fraud or negligence of the other must not put him in any worse 
 position as regards third persons. These, if the transaction be 
 =simply voidable, are entitled to treat it as valid until rescinded, and 
 may acquire indefeasible rights under it; if it bo void they can ac- 
 quire none, however blameless their own part in the matter may 
 be (6). Thus there is a real difference between a contract voidable 
 -at the option of one party and a void agreement whose nullity the 
 -other is estopped as against him from asserting. In the case of 
 contracts to take shares in companies an anomaly is admitted, as 
 we have seen, for reasons of special necessity, and the contract is- 
 treated as at most voidable. But even here there must be an origi- 
 nal animus contrahendi to this extent, that the shareholder was 
 minded to have shares in some company. An application for 
 .-shares, signed in absolute ignorance of its true nature and contents, 
 like the bill in Foster v. Mackinnon (b), could not be the founda- 
 tion of a binding contract to take shares. An allotment in answer 
 to such application would be a mere proposal, and whether it were 
 .accepted or not would have to be determined by the ordinary rules 
 of law in that behalf (see Ch. I.). 
 
 We may finally call attention to a rule of the law concerning 
 -sales by sample which has some analogy to the rules governing this 
 last class of void agreements. The rule in question may be gathered 
 {as Mr. Benjamin has pointed out) from Heilbutt v. Hickson (c) 
 .and is to this effect : " If a manufacturer agrees to iiirnish goods 
 -according to sample, the sample is to be considered as if free from 
 
 (a) [See Gardner v. Lane, 12 Allen, 39 ; and S. U. 98 Mass. 517.] 
 
 (b) Poster v. Mackinnon, L. E. 4 C. P. 704,, supra, p. 402. 
 
 (c) L. K. 7 C. P. 438 ; Benjamin on Sale, 533 [2d Am. ed. 605]. 
 
 489 
 
432 -CHAP. VIII. > MISTAKE. 
 
 any secret defect of manufacture not discoverable on inspection and! 
 unknown to both parties " (a). 
 
 Here we have a common error as to a material fact, namely the 
 character of the sample itself by which the character of the- 
 bulk is to be tested. But it is possible to put the parties in tlie. 
 same position as if their erroneous assumption had been, corr.ct, 
 432] *and therefore their contract, instead of being avoided, >s- 
 upheld according to their true intention, i.e., as if the sample had 
 been what they both supposed it to be. If they had themselves 
 discovered the mistake in time they would have made the same 
 contract with reference to a proper sample in place of the defective 
 one. The result is thus the converse of that which occurs when 
 the error goes to the matter of the whole agreement, as in the cases- 
 we have been considering. 
 
 It appears from the authorities which have been adduced that 
 one who has been party to an apparent agreement which is void, 
 by reason of fundamental error has more than one course open 
 to him. 
 
 He may wait until the other party seeks to enforce the alleged* 
 agreement and then assert the nullity of the transaction by way 
 of defense (6). If he think fit he may also take the opportunity 
 of seeking by counterclaim to have the instrument sued on set- 
 aside (c). 
 
 Or he may right himself, if he prefers it, by coming forward ac- 
 tively as plaintiff. Where he has actually paid money as in per- 
 formance of a supposed valid agreement, and in ignorance of the 
 facts which exclude the reality of such agreement, he may recover- 
 back his money as having been paid without any consideration 
 (the action " fqr money received " of the old practice) (d) He paid 
 on the supposition that he was discharging an obligation, whereas- 
 there was in truth no obligation to be discharged. 
 
 Moreover he may sue in the Chancery Division, whether any- 
 thing has been done under the supposed agreement or not, to have 
 
 (a) [It is otherwise if manufactured gpodsare sold by sample, by a merchant 
 who is not a manufacturer: Dickinson v. Gay, 7 Allen, 29.] 
 , (S) As to the proper mode of pleading such a defense under the old, practice 
 at common law, see notes (b) and (c), p. 404 of the first edition of this book. 
 
 (c) It seems to he, necessary for this purpose to ob.tain a transfer of the, action, 
 to the Chancery Divjsion : Mostyn v.. West Mostyn Coal and Iron Co., 1 C- 
 P. I). 145. 
 
 (d) E,q., Cox 'v. Prentice, 3 M. & S. 348; [supra, p. 423."| 
 
 490 
 
ELECTION TO ADOPT AGREEMENT. 433- 
 
 the transaction declared void and to be relieved from any possible 
 claims in respect thereof (a). 
 
 On the other hand, although he is entitled to treat the * S up- [433 
 posed agreement as void, and is not as a rule prejudiced by any thing 
 he may have done in ignorance of the true state of the facts, yet 
 after that state of facts has come to his knowledge he may never- 
 theless elect to treat the agreement as subsisting; or, as it would 
 be more correct to say, he may carry into execution by the light 
 of correct knowledge the former intention which was frustrated 
 by want of the elements necessary to the formation of any valid 
 agreement. It is not that he confirms the original transaction 
 (except in a case where there is also misrepresentation, see p. 431), 
 for there is nothing to confirm, but he enters into a new one. And 
 if his true consent goes with this, he is of course bound, so far as 
 consent can bind him. 
 
 It might be thought to follow that in cases within the Statute 
 of Frauds or any other statute requiring certain forms to be ob- 
 served, we must look not to the original void and improperly so- 
 called agreement, but to the subsequent election or confirmation in 
 which the only real agreement is to be found, to see if the require- 
 ments of the statute have been complied with. No express au- 
 thority has been met with on this point. But analogy is in favor~ 
 of a deliberate adoption of the form already observed being held 
 sufficient for the purpose of the new contract (b). 
 
 Part 3 Mistake in expressing true Consent. 
 This occurs when persons desiring to express an intention which 
 when expressed carries with it legal consequences have by mistake 
 used terms which do not accurately represent their real intention. 
 As a rule it can occur onlj' when the intention is expressed in 
 writing. It is not impossible to imagine similar difficulties arising 
 on verbal contracts, as for example if the discourse were carried 
 on in a language imperfectly understood by one or both of the 
 speakers. But we are not aware that any thing of this kind has 
 
 (a) All causes and matters for (inter alia) the setting aside or cancellation 
 of deeds or other written instruments (which formerly belonged to the- exclu- 
 si vejurisdietion of equity) are assigned to the Chancery Division by s. 34 of the= 
 Supreme Court of Judicature Act, 1873. 
 
 (b) Stewart v. Eddowes, L. K. 9 C. P. 311; supra, p. 146. 
 
 491 
 
-434 CHAP. VIII. MISTAKE. 
 
 been the subject of judicial decision (a). The general result of 
 persons talking at cross purposes is that there is no real agreement 
 at all. This" class of cases has already been dealt with. "We are 
 now concerned with those where there does exist a real agreement 
 434] between the parties, only wrongly *expressed. Such mis- 
 takes as we are now about to consider were, even before the Judi- 
 cature Acts, not wholly disregarded by courts of law; but thiy 
 are fully and adequately dealt with only by the jurisdiction which 
 was formerly peculiar to courts of equity. We shall see that this 
 jurisdiction is exercised with much caution and within carefully 
 defined limits. 
 
 On the whole the cases of mistake in expressing intention fall 
 into three classes : 
 
 1. Those which are sufficiently remedied by the general rules 
 of construction. 
 
 2. -Those which are remedied by special rules of construction 
 derived from the practice of courts of equity. 
 
 3. Those which require peculiar remedies administered by the 
 Court in its equitable jurisdiction. 
 
 We proceed to take the classes of cases above mentioned, in 
 order. 
 
 1. General Mules. 
 
 Certain simple and obvious forms of mistaken expression can be 
 set right without any special remedies by the ordinary rules of con- 
 struction which belong equally to common law and to equity. 
 Such are all trifling mechanical mistakes, clerical, verbal, or gram- 
 matical errors (b), omissions which may be supplied with certainty 
 from the context (c), and even more substantial errors when the 
 
 {a) See, however, Phillips v. Bistolli, 2 B. & C. 511, which comes near the 
 . supposed case. 
 
 (6) Cp. per Lord Mansfield (on a Will), 3 Burr. 1635; "Every inaccuracy of 
 grammar, every impropriety of terms, shall be corrected by the general mean- 
 ing, if that be clear and manifest." [Canal & Dock Co. v. Kussell, 68 111. 426; 
 Stow v. Steel, 45 111. 328; Sprague v. Edwards, 48 Cal. 239; Cox „. Britt, 22 
 Ark. 567.] 
 
 (c) For a striking case of omission supplied by a court of law, in a will, see 
 ■Doe d. Leach v. Micklem, 6 East. 486, where an alternative clause being imper- 
 fect the missing alternative was supplied as obviously omitted : and as to im- 
 plying an omitted case where there are limitations on alternative contingencies, 
 Crofton v. Davies, L. It. 4 C. P. 159; Savage v. Tyers, 7 Oh."^, 363. In sev- 
 eral recent cases the court has supplied omitted words (Bird's tr. 3 Ch, D. 214), 
 4'J2 
 
IN EXPRESSION : CORRECTION OP OBVIOUS ERRORS. 435- 
 
 instrument itself affords the means of correcting them. The Court, 
 is not bound by the strict meaning of words when the context 
 shows it to be contrary to the true meaning (a). It has long been 
 established that "false *or incongruous Latin or English [435' 
 seldom or never hurteth a deed : for the rules are, Falsa orthogra- 
 phia non vitiat chartam. Falsa grammatica non vitiat concessionem." 
 " Mnla grammatica non vitiat chartam : neither false Latin nor false 
 English will make a deed void when the intent of the parties doth 
 plainly appear" (6). 
 
 Where the length of the term is differently stated in different 
 parts of the lease, the counterpart may be referred to in order to- 
 decide which is right, the rule that the habendum prevails being 
 only a prima facie one (c). 
 
 Similar in principle, but of wider scope, is the rule that "greater 
 regard is to be had to the clear intent of the parties than to any 
 particular words which they may have used in the expression of 
 their intent " (<i). In a modern case in the House of Lords the : 
 rule was laid down and acted upon that "both courts of law and 
 of equity may correct an obvious mistake on the face of an instru- 
 ment without the slightest difficulty" (e). Here a draft agree- 
 
 and clauses (Daniel's sett. tr. 1 Ch. D. 375, a limitation in favor of daughters as 
 well as sons restored, Greenwood a. Greenwood, 5 Ch. D. 954, an omitted life 
 interest supplied by aid of subsequent context); Redfern v. Bryning, 6 Ch. D. 
 133; [Aulick v. Wallace, 12 Bush, 531; Kellogg v. Mix, 37 Conn. 243; Eath- 
 erlyv. Batherly, 1 Coldw. 461; Hoffman v. Riebl, 27 Mo. 554; Railroad Co. «,. 
 Spear, 32 Ga. 550; Sessons v. Sessons, 2 Dev. & B. Eq. 453; Liston, v. Jenkins, 
 2 W. Va. 62 ; Wood v. Coman, 56 Ala. 283.] 
 
 (a) Per James, L. J., Greenwood v. Greenwood, 5 Ch. D. at p. 956; [Davis v.- 
 Boggs, 20 O. S. 550; Carnagy v. Woodcock, 2 Munf. 234; l^ettleton v. Bill- 
 ings, 13 N. H. 446; English's Ex'r. v. McN air's Adm'r., 34 Ala. 40; Emerson v. 
 White, 9 Post. 482.] 
 
 (6) Shepp. Toucht. 55, 87 : cp. lb. 369 ; [Walters „. Bredin, 70 Pa. St. 235 ; . 
 Mc Williams v. Martin, 12 S. & R. 269; Tenny v. Lumber Co., 43 N. H. 343,. 
 349; Hancock v. Watson, 18 Cal. 137.] 
 
 (c) Burchell v, Clark (C. A.), 2 C. P. D. 88. 
 
 \d) Per Cur. (Ex. Ch.), Ford v. Beech, 11 Q. B. at p. 866; 17 L. J. Q. B. at 
 p. 116; [Chase v. Bradley, 26 Me. 531 ; Cooke v. Graham's Adm'r., 3 Or. 229; 
 Salmon Palls Mfg. Co. v. Portsmouth Co., 46 N. H. 249 ; Bickford v. Cooper, 41 
 Pa. St. 142.] 
 
 (e) Wilson v. Wilson, 5 H. L. C. 40, 66, per Lord St. Leonards, and see his 
 note, V. & P. 171. [In a tripartite deed, which conveyed the estate to the- 
 party of the second part, when it was clearly manifest that the intention was- 
 
 493 
 
436 CHAP. VIII. MISTAKE. 
 
 me nt for a separation deed had by mistake been copied so as to 
 contain a stipulation that the husband should be indemnified' 
 against his own debts : but it was held that the eontext and the na- 
 ture of the transaction clearly showed that the wife's debts were 
 meant, and that in framing the deed to be executed under the di- 
 rection of the Court in pursuance of the agreement the mistake 
 must be corrected accordingly. So the Court may presume from 
 the mere inspection of a settlement that words which, though they 
 make sense, give a result which is unreasonable and repugnant to 
 the general intention and to the usual frame of such instruments, 
 were inserted by mistake (a). 
 
 An agreement has even been set aside chiefly, if not entirely, on 
 the ground that the unreasonable character of it was enough to 
 satisfy the Court that neither party could have understood its true 
 effect : such at least aj>pears to be the meaning of Lord Eldon's 
 436] phrase, " a surprise on *both parties " (b). The agreement 
 itself purported to bind the tenant of a leasehold renewable at ar- 
 bitrary (and in fact always increasing) fines at intervals of seven 
 years to grant an underlease at a fixed rent with a perpetual right 
 of renewal. The lessor was in his last sickness, and there was ev- 
 idence that he was not fit to attend to business. Charges of fraud 
 were made, as usual in such cases, but not sustained: the decision 
 might, however, have been put on the ground of undue influence, 
 .and was so to some extent by Lord JJedesdale. 
 
 Again, there is legal as well as equitable jurisdiction to restrain 
 the effect of general words if it sufficiently appears by the context 
 that they were not intended to convey their apparent unqualified 
 meaning. It was held in Browning v. Wright (c) that a general 
 covenant for title might be restrained by special covenants among 
 
 to convey to the party of the third part, it was held, the intention being clear, 
 that the proper correction would be made by construction, and that the estate 
 was vested in' the party of' the third part : Sisson v. Donnelly, 36 N. J. L. 432 ; 
 Huyler's Ex'rs. v. Atwood, 26 N. J. Eq. 504; Eichmond v. Woodward, 32 Vt. 
 833; Marion «/ Faxon, 20 Conn. 486; Stockton v. Turner, 7 J. J. Marsh. 1,92; 
 Oreighton ; ■«. Pringle, 3 S. C. 77; State v. Joyce, 48 !nd. 310.] 
 
 (a) lie De la Touche's settlement, 10 Eq. 599, 603; where, however, the mis- 
 take was also established by evidence. , i .,■■.,, 
 
 (6) Willan v. Wilkin, 15 Ves. 6. 84; affirmed in Dom. Proc. 2 Dow, 275,278: 
 : (c) 2 B. & P. 13, 26 : but it was also thought the 1 better construction .'to take 
 tho clause' in questidn as feeing actually part of. a special 3 Oovefiant, and so no 
 general- covenant at all. '\v." <. , >:.(!/■..■■ ,•••:•.: •■«■;: . ... 
 
 494 
 
IN EXPRESSION : EVIDENCE AND CONSTRUCTION. 437 
 
 ^which it occurred. And the same principle was again deliberately 
 asserted shortly afterwards (in a case to the particular facts of 
 which it was, however, held not to apply) : — - 
 
 " However general the words of a covenant may be if standing alone, 
 yet if from other covenants in the same deed it is plainly and irresistibly 
 to be inferred that the party could not have intended to use the words 
 in the general sense which they import, the Court will limit the operation 
 •of the general words" (a). 
 
 Similarly 7 the effect of general words of conveyance is confined 
 to property ejusdem generis with that which has been specifically 
 •described and conveyed (6). When there is a specific descrip- 
 tion of a particular kind of property, followed by words which 
 prima facie would be sufficient to include other property of the 
 same kind, it has been held that those words do not include the 
 *property not specifically described, on the principle ex- [437 
 pressio unius eft exclusio alterius (c). 
 
 Before we deal with the following heads it will be relevant to ob- 
 serve that the questions arising under them are for the most part 
 either questions of evidence, or mixed questions of evidence and 
 construction. This demands some preliminary explanation. 
 
 The end proposed is to give effect to the true intention of the 
 parties concerned. 
 
 Intention has to be inferred from words, or conduct, or both. 
 
 (a) Hesse v. Stevenson, 3 B. & P. 565, 574; [Cole v.' Hawes, 2 Johns. Uas. 
 20S; Whallon v. Kauffman, 19 Johns. 97; Miller v. Heller, 7 S. & E. 32, 40; 
 Bender v. Fromberger, 4 Dall. 436; Sumner v. Williams, 8 Mass. 162,214, 217; 
 Bricker v. Bricker, 11 O. S. 240; cp. Estabrook v. Smith, 6 Gray, 572.] 
 
 • (6) Booko v. Lord Kensington, 2 K. & J. 753, 771. The same principle ap- 
 plies to general words in the statement of a Company's objects in its memoran- 
 dum of association. Ashbury, &c, Co. v. Biehe, L. B. 7 H. L. 653, supra, p. 
 ■92, &c. 
 
 (c) Denn v. Wilford, 8 Dow. & By. 549. The case was a curious one. A 
 fine bad been levied of (inter alia) twelve messuages and twenty acres of land 
 in Chelsea. The conusor had less than twenty acres of land in Chelsea, but 
 ■nineteen messuages. It was decided that although all the messuages would 
 have passed under the general description of land if no less number of mes- 
 suages had been mentioned, yet the mention of twelve messuages prevented 
 any greater number from passing' under the description of land: and that 
 parol evidence was admissible to show first that there were in fact nineteen 
 messuages, this being no more than was necessary to explain 'the nature and 
 character of the property ; next (as a consequence of the construction there- 
 upon adopted by the Court) which twelve out of the nineteen messuages were 
 intended.. And see further the notes to. Boe v. Tranmarr, 2 Sm. L. C. 
 
 495 
 
438 CHAP. Viri. MISTAKE. 
 
 In making these inference c conduct must generally bo interpreted, 
 and words may often be interpreted, by reference to other relevant- 
 t ircumstances of the transaction. 
 
 And the rules which guide a court of justice in determining of 
 "wh;it things it may take notice for the purpose of such inferences, 
 and in what manner such things may be brought to. its notice — in 
 other words, what facts are relevant, and what proof of such facts 
 is required — are rules of evidence (a). 
 
 A rule of construction is a rule for determining the inference to 
 be drawn from a fact of a particular class when duly brought un- 
 der the notice of the Court according to the rules of evidence — the 
 fact, namely, that persons have used words or combinations of 
 words such as come within the general proposition affirmed by the- 
 rule. The name " rule of construction " is confined by general 
 usage to rules for the interpretation of written documents in mat- 
 ters on which, in the absence of a rule prescribed by authority, 
 there might exist a reasonable doubt. Eules of construction, 
 4';S] ^therefore, are in practice closely connected with, and their 
 importance is much affected by, rules of evidence (6). 
 
 We are now concerned with a general rule of evidence, and the- 
 modifications effected in some of its results partly by special rules- 
 of construction and partly by direct exceptions. 
 
 The principle from which the law sets out is one almost too ob- 
 vious to need stating, being that on which we daily act in all the- 
 transactions of life : namely, that men are to be taken to mean what- 
 they say. 
 
 The next step is of somewhat more artificial character, but equally 
 founded in reason. It is that men are taken to mean what they 
 have chosen to say deliberately and in a permanent form rather 
 than what they may have said in Bastj' or less considered discourse. 
 Hence the general rule that evidence of an oral agreement is not- 
 admissible to contradict the terms of a written document. It has- 
 been thus stated : " The law prohibits generally, if not universally,- 
 the introduction of parol evidence to add to a written agreement, 
 whether respecting or not respecting land, or to vary it '' (c). " If 
 
 (a) See the arrangement of the Indian Evidence Act, 1872. Part I. Rele- 
 vancy of Pacts. Part II. On Proof. 
 
 (6) Op. Mr. P. V. Hawkins' remarks on rules of construction in the preface 
 to his Treatise on the Construction of Wills. 
 
 (c) Martin v. Pycroft, 2 D. M. G. 785, 795. We have not to consider in this- 
 place how far thore cases- must be deemed really exceptional in which it is al- 
 496 
 
IN EXPRESSION: RULE AGAINST PAROL VARIATIONS. 439" 
 
 A. and B. make a contract in writing, evidence is not admissible to 
 show that A. meant something different from what is stated in the- 
 contract itself, and thatB. at the time assented to it. If that sort- 
 evidence were admitted every written document would be at the 
 mercy of witnesses that might be called to swear any thing " Qi). 
 
 In the absence of mistake or fraud, or a verbal agreement hav- 
 ing been acted upon (&), the same rule prevails in equity (c), and 
 this in actions for specific performance as well as in other proceed- 
 ings, and whether the alleged variation is made by a *con- [439' 
 tcmporaneous (<f) or a subsequent (<?) verbal agreement. " Varia- 
 
 lowed to be shown that a custom of the country, or of trade, though not ex- 
 pressed, is in fact part uf the contract. 
 
 (a) Per Pollock, C. B., Nichol v. Godts, 10 Ex. 191, 194; 23 L. J. Ex. 314. 
 See, also, Hotson v. Browne, 9 0. B. N. S. 442; 30 L. J. C. P. 106; Halhead v. 
 Young, 6 E. & B. 312; 25 L. J. Q. B. 290; [Stackpole v. Arnold, 11 Mass. 27 j 
 Smith v. Williams, 1 Murphey, 426, 430; Sogers v. Atkinson, 1 Kelley, 12, 20; 
 Kerr v. Kuykendall, 44 Miss. 137; Martin v. Berens, 67 Pa. St. 459; Green^ 
 leaf on Evidence, \ 275, \ 281 sqq.] 
 
 (J) The doctrine of equity as to part performance rests on a principle analo- 
 gous to estoppel (Morphett v. Jones, 1 Swanst. 172, 181) and does not belong to- 
 our present subject; [see infra, p. 581.] 
 
 ' (c) [Walden v. Skinner, 101 IT. S. 577, 584; Porsytbe v. Kimball, 91 IT. S. 
 291 ; Ware v. Cowles, 24 Ala. 446; Elysville Mfg. Co. v. Okisko Co., 1 Md. Ch.. 
 392; Stevens v. Cooper, 1 Johns. Ch. 425; Bradbury ■„. White, 4 Me. 391; 
 Harrison v. Talbot, 2 Dana, 258; Sprigg v. Bank, 14 Pet- 201.] 
 
 (d) Omerod v. Hardmah, 5 Ves. 722, 730. Lord St. Leonards (V. & P. 163). 
 says this can not be deemed a general rule. [See Quinn v. Koath, 37 Conn. 16 j. 
 Pomeroy on Spec. Pert'., § 241, n. 3, ad pi.; Overton v. Tracy, 14 S. & li. 311, 
 326.] But see Hill v. Wilson, 8 Ch. 888 ; per Mellish, L. J., at p. 899 ; [Kit- 
 ten house v. Tomlinson, 27 N. J. Eq. 379; Ware v. Cowles, 24 Ala. 446; White- 
 aker v. Van Schoiack, 5 Oreg. 113.] 
 
 (e) Price v. Dyer, 17 Ves. 356; llobinson v. Page, 3 Kuss. 114, 121. But a 
 subsequent waiver by parol, if complete and unconditional, may be a good de- 
 fense: lb.; Goman v. Salisbury, 1 Vern. 240. And cp. 6 Ves. 337a, note. Qu., 
 if riot also at law,,, if the contract be not under seal : see Chitty on Contracts, 
 707 (8th ed.) ; Dart, V. & P. 970. Mr. Dart's statement seems too positive, for 
 the case of Noble v. Ward (L. R. 2 Ex! 135) does not prove that ''a verbal 
 waiver of a written agreement is no defense at law," but only that a now verbal 
 agreement intended to supersede an existing contract, but by reason of the- 
 Statute of Erauds incapable of being enforced, can not operate as a mere re- 
 scission of the former contract ;. the ground being that there is nothing to show- 
 any, intention of the parties to rescind the first contract absolutely. [Parties to- 
 a contract which, has been reduced to writing may, at any time before breach. 
 of it, by a new agreement not in writing, either altogether waive, dissolve, or 
 
 32 497 
 
439 CHAP. VIII. MISTAKE. 
 
 iions verbally agreed upon . . . are not sufficient to prevent 
 the execution of a written agreement, the situation of the parties in 
 •all other respects remaining unaltered " (a) 
 
 When a question arises as to the construction of a written instru- 
 ment as it stands, parol evidence is no more admissible in equity 
 than at law to show what was the intention of the parties. It is 
 otherwise, as we shall presently see. where it is sought to rectifythe 
 instrument. And therefore the Court has in the same suit refused 
 to look at the same evidence for the one purpose and taken it into 
 account for the other (6). 
 
 It is no real exception to this rule that though " evidence to vary 
 the terms of an agreement in writing is not admissible," yet 
 " evidence to show that there is not an agreement at all is admis- 
 sible," as where the operation of a writing as an agreement is con- 
 ditional on the approval of a third person (c). "A written contract 
 not under seal is not the contract itself, but only evidence — the rec- 
 
 annul it, or in any manner add to, or subtract from, or vary, or qualify its 
 terms, and thus make a new contract: Thurston v. Ludwig, 6 O. S. 1 ; Rhodes 
 v. Thomas, 2 Ind. 638 ; Insurance Co. v. Earle, 33 Mich. 143 ; Hewitt v. Brown, 
 21 Minn. 163 ; Bank v. Woodward, 5 N. H. 99 ; "Wiley v. Hail, 8 la. 62 ; Heath- 
 erly v. Record, 12 Tex. 49 ; Flanders v. Fay, 40 Vt. 316 ; Allen v. Sowerby, 37 
 Md. 410; Wiggin v. Goodwin, 63 Me. 389. 
 
 A contract within the statute of frauds, while it can not be varied by a verbal 
 agreement (Dana v. Hancock, 30 Vt. 616; Swain v. Seamens, 9 Wall. 254, 271-2; 
 Browne on Stat. Frauds, \ 411 sqq. ; cp. cases supra, p. 31, note a!), may be 
 wholly waived or abandoned by an agreement not in writing: Buel v. Miller, 
 4 N. H. 196; Phelps v. Seely, 22 Gratt. 573; and see next note.] 
 
 (a) Price v. Dyer, 17 Ves. at p. 364 ; Clowes v. Hjgginson, 1 Ves. & B. 524, 
 where it was held (1) that evidence was riot admissible to explain, coniradict, 
 ■or vary the written agreement, but (2) that the written agreement was too am- 
 biguous to be enforced. ["Specific performance of a contract will not be en- 
 forced if there was a subsequent agreement by parol to waive it, and substitute 
 a new contract for it: " Ryno v: Darby, 20 N. J. Eq. 231. 
 
 That a subsequent waiver, or rescission, by parol,' is a good defense, see also 
 Bowman v. Cunningham, 78 111.48; Lucas v. Mitchell, 3 A. K. Marsh. 244, 
 246; Boyce v. McCullough, 3 W.&S.429; Raffensberger v. Cullison, 28 Pa. St. 
 426; Walker v. Wheatley, 2 Humph. 119.] 
 
 (6) Bradford v. Romney, 30 Beav. 431. 
 
 (c) Pym v. Campbell, 6 E. & B. 370, 374; 25 L. J. Q. B, 277. ["The first 
 question to determine, in construing a document, is whether there is a docu- 
 ment to construe. Hence it is, always admissible to show by parol that a docu- 
 ment was conditioned on an event that never occurred:" Wharton on.Ev, 
 ■2 927.] 
 
 498 
 
IN EXPRESSION ; RULE AGAINST PAROL VARIATIONS. 440 
 
 ■ord of the contract. When the parties have recorded their con- 
 tract, the rule is that they can not alter or vary it by parol evi- 
 dence. They put on paper what is to bind them, and so make the 
 -written document conclusive evidence between them. But it is al- 
 ways open to the parties to show whether or not the written docu- 
 ment is the binding record of the contract " (a). 
 
 *" The rules excluding parol evidence have no place in [440 
 any inquiry in which the Court has not got before it some ascer- 
 tained paper beyond question binding and of full effect " (6). 
 
 So in the late case of Jervis v. Berridge (c) it was held- that a 
 •document purporting to be a written transfer of a contract for the 
 purchase of lands "was . . . not a contract valid and operative 
 between the parties but omitting (designedly or otherwise) some 
 particular term which had been verbally agreed upon, but was a 
 mere piece of machinery . . . subsidiary to and for the pur- 
 poses of the verbal and only real agreement." And since the ob- 
 ject of the suit was not to enforce the verbal agreement, nor u any 
 hybrid agreement compounded of the written instrument and some 
 terms omitted therefrom, "but only to prevent the defendant 
 from using the written document in a manner inconsistent with 
 the real agreement, there was no difficulty raised by the Statute of 
 Frauds, "which does not make any signed instrument a valid con- 
 tract by reason of the signature, if it is not such according to the 
 good faith and real intention of the parties " (d). If it appears 
 that a document signed by the parties, and apparently being the 
 record of a contract, was not in fact intended to operate as a con- 
 tract, then "whether the signature is or is not the result of a mis- 
 take is immaterial " (e). 
 
 (a) Per Bramwell, B., Wake v. Harrop, 6 H. & N. at p. 775 ; 30 L. J. Ex. 
 -at p. 277. 
 
 (b) Guardhouse v. Blackburn, L. B..1 P. & D. 109, 115. And see per Page 
 Wood, V.-C, in DruiffV Lord Parker, 5 Eq. 131, 137. 
 
 (a) 8 Oh. 351, 359, 360. ' 
 
 (d) [And see Hussey v. Home Payne, 4 App. Ca. 811, 323; Deshon o. Insur- 
 ance Co., 11 Met. 199. 
 
 "Where a verbal contract is entire, and a part only, in part performance, is 
 reduced to writing, parol proof of the entire contract is competent:" Hope v. 
 Balen, 58 N. Y. 380, 382 ; Healy v. Young, 21 Minn. 389; Clarke v. Tappin, 32 
 Conn. 56; Barker v. Bradley, 42 N. Y. 316.] 
 
 (e) Per Bramwell, B., Rogers v. Hadley, 2 H. & C. 227, 249 ; 32 L. J. Ex. 
 241. In this case there was "a real contract not in writing and a paper pre- 
 pared in order to comply with some form, which was stated at the time to con- 
 
 499 
 
441 CHAP. VIII. MISTAKE. 
 
 / 
 
 We shall see, however, that the heads now to be discussed pre- 
 sent two classes of really exceptional cases recognized^ by equity. 
 
 First, those in which equity applies to instruments of certain 
 kinds rules of construction which (as regards the actual terms- 
 of the instruments) are highly artificial, so artificial, indeed, that, 
 they come to much the same thing as presuming a verbal agree- 
 ment inconsistent with and operating to vary the written agree- 
 ment. 
 
 441] *The ground on which these rules were established (or at 
 any rate which in modern times has been relied on to account for 
 them) was that the manner in which the parties had expressed 
 their intention did not correspond with their true intention. We 
 must therefore consider the cases governed by the rules in question 
 to have been originally cases of relief against mistaken expression. 
 But since the doctrine of equity has been fixed and uniform tbey 
 have practically ceased to have any such nature, for persons who 
 make contracts are presumed to know the law of the land, includ- 
 ing the law administered by courts of equity; and therefore they 
 must be presumed to know that if the nature of the contract and 
 the terms used in framing it fall within the scope of these peculiar 
 rules which have now become fixed rules of construction, the con- 
 tract will be interpreted accordingly. And in fact they generally 
 do know this, and use the accustomed expressions for the very 
 reason that they have acquired a definite artificial meaning in- 
 courts of equity. It seems proper, on account of the origin of these 
 equitable rules, to say something of them in this place, though not 
 to go into details belonging to the fuller treatment of the special 
 departments affected by them. 
 
 In the other class of exceptional cases, which form the last divis- 
 ion of the subject, courts of equity have admitted oral evidence, for 
 certain purposes and under certain limitations, to show that by 
 reason of a mistake the terms of a written instrument fail to ex- 
 press the real intention of the parties, and that the real agreement 
 is different from the written agreement; It will be obvious from 
 the foregoing remarks that this class originally included the last. 
 
 We proceed to consider the topics thus indicated. 
 
 tain a merely nominal price; [Earle v. Bice, 111 Mass. 17; Grierson v. Mason,. 
 60 IT. Y. 394.] 
 500 
 
IN EXPRESSION : RULES OP CONSTRUCTION IN EQUITY. 442 
 
 2. Peculiar Hules of Construction in Equity. 
 
 The material exceptions to the rule that contracts are construed 
 .alike at common law and in equity are — 
 
 A. Kestricted. construction of general words, and especially of 
 releases. 
 
 b. Stipulations as to time. 
 
 c. Penalties. 
 
 *A. Restriction of General Words. [442 
 
 We have seen that courts of law as well as courts of equity have 
 
 .assumed a power to put a restricted construction on general words 
 when it appears on the face of the instrument that it can not have 
 been the real intention of the parties that they should be taken in 
 their apparent general sense. 
 
 But courts of equity will do the like if the same conviction can 
 be arrived at by evidence external to the instrument. Thus general 
 words of conveyance (a) and an unqualified covenant for title (6), 
 though not accompanied as in Browning v. Wright (c) by other 
 
 -qualified covenants, have been restrained on proof that they were 
 not meant to extend to the whole of their natural import. 
 
 This jurisdiction is exercised chiefly in dealing with releases. 
 Here the principle is well established that " the general words in a 
 release are limited always to that thing or those things which were 
 
 -specially in the contemplation of the parties at the time when the 
 release was given " (d). This includes the proposition that in 
 equity " a release shall not be construed as applying to something 
 of which the party executing it was ignorant " (e). There is at 
 
 (a) Thomas v. Davis, 1 Dick. 301. 
 
 (b) Coldcot v. Hill, 1 Cha. Ca. 15, sed qu., for the case looks very like admit- 
 ting contemporaneous conversation to vary the effect of a solemn instrument, 
 
 . and that without any mistake or fraud being made out, which is quite contrary 
 to the modern rule; [Taylor v. Gil man, 25 Vt. 411.] 
 
 (c) 2 B. & P. 13 ; supra, p. 436. 
 
 (d) Per Lord Westbury, L. & S. W. Ey. Co. „. Blackmore, L. E. 4 H. L. at 
 p. 623 ; cp. Lindo v. Lindo, 1 Beav. 496, 506 ; Farewell v. Coker, cited 2 Mer. 
 
 • 353; Dav. Con v. 5. pt. 2. 622-4; [Mclntyre v. "Williamson, 1 Edw.Ch. 34; 
 Turner v. Turner, 14 Ch. D. 829. 
 
 General words in a release may, at law, be restrained by particular recitals : 
 Lyman v. Clark, 9 Mass. 235; Kich v. Lord, 18 Pick. 322; Jackson v. Stack- 
 iause, 1 Cow. 122.] 
 
 (e) Per Wilde, B., Lyall v. Edwards, 6 H. & N. 337, 348 ; 30 L. J. Ex. 193, 
 
 501 
 
443 CHAP. VIII. MISTAKE. 
 
 least much reason to think that it matters not whether such ignor- 
 ance was caused by a mistake of fact or of law (a). 
 
 In particular a release executed on the footing of accounts ren- 
 dered by the other party, and assuming that they are correctly 
 rendered, may be set aside if those accounts are discovered to- 
 contain serious errors. It would be otherwise, however, if the 
 party had examined the accounts himself and acted on his own 
 judgment of their correctness. An important application of this 
 443] *doetrine is in the settlement of partnership affairs between 
 the representatives of a deceased partner (especially when they 
 are continuing partners) and the persons beneficially interested in- 
 his estate (b). 
 
 A releasor, however, can not obtain relief if he has in the mean- 
 while acted on the arrangement as it stands in such a way that the- 
 parties can not be restored to their former position (c). 
 
 B. Stipulations as to Time. 
 
 It is a familiar principle that in all cases where it is sought to- 
 enforce contracts consisting of reciprocal promises, and " where the 
 plaintiff himself is to do an act to entitle himself to the action, he- 
 must either show the act done, or if it be not done, at least that he 
 has performed every thing that was in his power to do " (d). 
 
 Accordingly, when by the terms of a contract one party is to do 
 something at or before a specified time, and when he fails to do such 
 thing within such time, he could not afterwards claim the perform- 
 ance of the contract if the stipulation as to time were construed 
 according to its literal terms. Now "at law time is always of the- 
 essence of the contract. When any time is fixed for the completion' 
 of it, the contract must be completed on the day specified, or an 
 action will lie for the breach of it. This is not the doctrine of a 
 court of equity; and although the dictum of Lord Thurlow that 
 
 197. This was a case of equitable jurisdiction under the C. L. P. Act, 1854: 
 but before that act courts of law would not allow a release to be set up if clearly 
 satisfied that a court of equity would set it aside: Phillips v. Clagett, 11 M. &. 
 W. 84. 
 
 (a) See the cases considered at pp. 396-7, above. 
 
 (b) Millar v. Craig, 6 Beav. 433; Lindley, 2. 981, and as to accounts stated r 
 lb. 1026. 
 
 (c) Skilbeck v. Hilton, 2 Eq. 587, but qu. whether the principle was rightly 
 applied in the particular case. 
 
 (d) Notes to Peeters v. Opie, 2 "Wins. Saund. 743. 
 
 502 
 
SPECIAL ROLES OP CONSTRUCTION IN EQUITY. 444 
 
 time could not be made of the essence of a contract in equity (a> 
 has. long, been exploded, yet time is held to be of the essence of the 
 contract in equity, only in cases of direct stipulation or of necessary 
 implication " (b). 
 
 A court of equity looks at the whole scope of the transaction' 
 to see whether the parties really meant the time named to be of 
 the essence of the contract. And if it appears that, though they 
 named a specific day for the act to be done, that which they 
 *really contemplated was only that it should be done within [444 
 a reasonable time; then this view will be acted upon, and a party 
 who according to the letter of the contract is in default and incom- 
 petent to enforce it will yet be allowed to enforce it in accordance 
 with what the Court considers its true meaning. 
 
 This is especially the case with regard to contracts between ven- 
 dors and purchasers of land. 
 
 "Courts of Equity have enforced contracts specifically, where no action? 
 for damages could be' maintained; for at law the party plaintiff must 
 have strictly performed his part, and the inconvenience of insisting uport 
 that in all cases was sufficient to require the interference of courts of 
 equity. They dispense with that which would make compliance with 
 what the law requires oppressive, and in various cases of such contracts- 
 they are in the constant habit of relieving the man who has acted fairly, 
 though negligently. Thus in the case of an estate sold by auction, there 
 is a condition to forfeit the deposit if the purchase be not completed within 
 a certain time; yet the Court is in the constant habit of relieving against 
 the lapse of time: and so in the case of mortgages, and in many in- 
 stances, relief is given against mere lapse of time where lapse of time is 
 not essential to the substance of the contract." 
 
 So said Lord Eodesdale in a judgment which has taken a classi- 
 cal rank on this subject (c). 
 
 (a) Seton v. Slade, 7 Ves. 265, 275; and notes thereon in 2 Wh. & T. L. C. 
 
 (6) Parkin v. Thorold, 16 Beav. 59, 65; [Taylor v. Longwortb, -14 Pet. 172; 
 Barnard v. Lee, 97 Mass. 92; Ewiris v. Gordon, 49 N. H. 444, 459; Bomier v. 
 Caldwell, 8 Mich. 463; Brock v. Hidy, 13 O. S. 306; Huffman v. Hummer, 17 
 N. J. Eq. 263; King v. Kuckman,,21 N. J. Eq. 599; Snowman u. Harford. 5& 
 Me. 197; Jackson v. Ligon, 3 Leigh, 161, 186; Gill v. Bradley, 21 Minn. 15; 
 Steele v. Branch, 40 Cal. 3 ; Edgnrton v. Peckham, 11 Paige, 352; Hubbell v. 
 Von Schoening, 49 N. Y. 326 ; Keller v. Fisher, 7 Ind. 718; Tiernan v. Poland, 
 15 Pa. St. 429.] 
 
 .(c) Lennon v. Napper, 2 Sen. & L. 684, cited by Knight Bruce, L. J. ; Eob- 
 erts v. Berry, 3 D. M. G. at p. 289, and again adopted by the L. JJ, in Tilley 
 v. Thomas, 3 Ch. 61. 
 
 503 
 
445 CHAP. VIII. MISTAKE. 
 
 It was once even supposed that parties could not make time of 
 the essence of the contract by express agreement; but it is now 
 perfectly settled that they can, the question being always what was 
 their true intention (a), or rather "what must be judicially as- 
 sumed to have been their intention" (b). "If the parties choose 
 even arbitrarily, provided both of them intend to do so, to stipulate 
 for a particular thing to be done at a particular time," such a stipu- 
 lation is effectual in equity as well as at law. A court of equity 
 will not interfere to make a new contract which the parties have 
 445] not made (c). And although time is *not originally of the 
 ■essence of the contract, yet subsequent " express notice will make 
 time of the essence of the contract, where a reasonable time is 
 ^specified " (d) : as on the other hand conduct of the party entitled 
 to insist on time as of the essence of the contract, such as continu- 
 ing the negotiations without an express reservation after the time 
 has past, may operate as an implied waiver of his right (e). The 
 principles of Equity jurisprudence on this head are well embodied 
 'by the language of the Indian Contract Act, s. 55 : 
 
 When a party to a contract promises to do a certain thing at or before 
 a specified time, or certain things at or before specified times, and fails 
 to do any such thing at or before the specified time, the contract, or so 
 much of it as has not been performed, becomes voidable, at the option of 
 
 (a) Seton v. Slade, 7 Ves. 265, 275, and. notes to that case in 2 Wh. &.T. L. 
 C. ; Parkin v. Thorold, supra. 
 
 (6) Grove, J., in Patrick v. Milner, 2 C. P. D. 342, 348. 
 
 (c) Per Alderson, B., Hip-well v. Knight, 1 Y. & C. (Ex.) 415. And see the 
 •observations of Kindersley, V.-C, to the same effect, in Oakden v. Pike, 34 L. 
 J". Ch. 620. ["There is no doubt that time may be made of the essence of a 
 ■contract for the sale of property. It may be made so by the express stipula- 
 tions of the parties, or it may arise by implication from the nature of the prop- 
 erty,. or the avowed objects of the seller or the purchaser:'' Taylors. Long, 
 worth, 14 Pet. 172, 174; Grigg v. Landis, 21 N. J. Eq. 494; Goldsmith v. Guild, 
 10 Allen, 239 ; Scott v. Fields, 7 Ohio, 376; Quinn v. Roath, 37 Conn. 1!>; Ben- 
 edict v. Lynch, 1 John. Ch. 370; Prince v. Griffin, 27 la. 514; Scarlett v. Stein, 
 40 Aid. 512, 525; Grey v. Tubbs, 43 Cal. 359 ; Steele v. Biggs, 22 111. 643 ; Ew- 
 ing v. Crouse, 6 Ind. 312; Wells v. Smith, 7 Paige, 22.] 
 
 {«) Parkin v. Thorold, 16 Beav. at p. 75; Dart, V. &, P. 418-20; and see 
 Williams v. Glen ton, 1 Ch. 200, 210; [Crawford v. Toogood, 13 Ch. D. 153, 
 Kirby «. Harrison, 2 O. S. 326; Wiswall v. McGowan, .1 Hoffm. Ch. 125, 139; 
 Bullock *. Adams' Ex'r., 20 N. J. Eq. 367; Thompson p. Dulles, 5 Rich. 
 Eq. 370.] 
 
 le ] Webb. v. Hughes, 10 Eq. 281 : and see next note but one. 
 504 
 
RELIEF AGAINST PENALTIES. 446 
 
 rthe promisee, if the intention of the parties was that time should be of 
 the essence of the contract. 
 
 [The Court may infer from the nature of a contract, even though no 
 time be specified for its completion, that time was intended to be of its 
 essence to this extent, that the contracting party is bound to use the ut- 
 most diligence to perform his part of the contract] (a). 
 
 If it was not the intention of the parties that time should be of the es- 
 sence (if the contract, the contract does not become voidable by the fail- 
 ure to do such thing at or before the specified time ; but the promisee is 
 entitled to compensation from the promisor for any loss occasioned to 
 him by such failure. 
 
 If in case of a contract, voidable on account of the promisor's failure 
 to perform his promise at the time agreed, the promisee accepts perform- 
 ance of such promise at any time other than that agreed, the promisee 
 ■can not claim compensation for any loss occasioned by the non-perform- 
 ance of the promise at the time agreed, unless, at the time of such ac- 
 ceptance, he gives notice to the promisee [sic in the Act, an obvious mis- 
 print for promisor] of his intention to do so (4). 
 
 C. Belief against Penalties. 
 
 In like manner penal provisions inserted in instruments to secure 
 the payment of money or the performance of contracts will not be 
 literally enforced, if the substantial performance of *that [446 
 which was really contemplated can be otherwise secured (c). The 
 most important application of this principle is in the jurisdiction of 
 equity concerning mortgages. A court of equity treats the contract 
 as being in substance a security for the repayment of money ad- 
 vanced, and that portion of it which gives the estate to the mort- 
 gagee as mere form, "and accordingly, in direct violation of the 
 [form of the] contract," it compels the mortgagee to reconvey on 
 being repaid his principal, interest, and costs (rf). Here again the 
 original ground on which equity interfered was to carry out the 
 
 (a) Macbi-yde v. Weekes, 22 Beav. 533 (contract for a lease of working mines). 
 (6) "It constantly happens that an objection is waived by the conduct of Lhe 
 parties.'' per James, L. J., Upperton v. Nickolson, 6 Oh. at p. 443. And see 
 Dart, V. & P. 424 ; [Dressel v. Jordan, 104 Mass. 407; Brassell v. McLemore, 
 .50 Ala. 476; Foley v. Grow, 37 Md. 51 ; Grigg v. Landis, 21 N. J. Eq. 494;' 
 Ewins v. Gordon, 49 N. H. 441, 460; Peck v. Brighton Co., 69 111. 200.] 
 
 (c) In addition to the authorities cited below, see the later case of Bx parte 
 Hulse, 8 Oh. 1022. [See the notes to Peachy v. Duke of Somerset, and Sloman 
 ■v. Walter, 2 Wh. & T. L. C] 
 ■ ;(rf) Per Komilly, M. E., Parkin v. Thorold, 16 Beav. 59, 68; and see Lord 
 JEedesdale's judgment in Lennon v. Napper, supra. 
 
 505 
 
•446 CHAP, VIII. MISTAKE. 
 
 true intention of the parties. .But it can not.be said here, as in the- 
 case of other stipulations as to time, that every thing depends oi> 
 the intention. For the general rule "once a mortgage, and always- 
 a mortgage" can not be superseded by any express agreement so- 
 as to make a mortgage absolutely irredeemable (<•<). However- 
 limited restrictions on the mutual remedies of the mortgagor ::nd 
 mortgagee, as by making the mortgage for a term certain, arc al- 
 lowed and are not uncommon in practice. Also there may be such. 
 a thing as an absolute sale with an option of repurchase on certain 
 conditions; and if such is really, the nature of the transaction,, 
 equity will give no relief against the necessity of observing those 
 conditions (b). 
 
 " That this Court will treat a transaction as a mortgage, although 
 it was made so as to bear the appearance of an absolute sale, if it 
 appears that the parties intended it to be a mortgage; is no doubt 
 true" (c). Indeed, a court of law as well as a court of equity will 
 
 (a) Howard v. Harris, 1 Vern. 190; Gowdry v. Day, 1 Giff. 316: see report- 
 er's note at p. 323 ; 1 Ch. Ca, 141 ;> [Peugh v. Davis, 96 U. S. 332 ; Pierce v. 
 Robinson. 13 Oal. 116, 125 ; Stover v. Bounds, 1 O. S. 107 ; Clark e. Henry, 2. 
 Oow. 324; Wilson v. Drumrite, 21 Mo. 325; Vanderhaize v. Hugues, 2 Beasl. 
 244; Batty v. Snook, 5 Mich. 231 ; Youle v. Richards, 1 Saxt. Oh. 534; Weath- 
 ersly v. Weathersly, 40 Miss. 462; Eobinson v. Willougbby, 65 N. C. 520, 
 523-4; 2 Washburn on Eeal Prop. (4th ed.) 61 sqq. 
 
 The rule, however, does not prevent a sale of his equity of redemption by, a. 
 mortgagor, to the mortgagee; though in examining the transaction "principles 
 almost as stern are applied as those which govern where a sale by a cestui que- 
 trust to his trustee is drawn in question :'' Villa v. Rodriguez, 12 Wall, 323, 339 ; 
 Eussell v. Southard, 12 How. 139, 154; Peugh D.Davis, 96 U.S. 332, 337; West. 
 v. Heed, 55 111. 242; Hieks v. Hicks, 5 G. & J. 75 ; Trull v. Skinner, 17 Pick. 
 213; Pallis v. Insurance Co., 7 Allen, 46.] 
 
 (b) Davis v. Thomas, 1 Euss. & M. 506. ["To deny the power of two indi- 
 viduals, capable of acting for themselves, to make a contract for the purebase- 
 and sale of lands defeasible by the payment of money at a future day, or, in 
 other words, to make a sale with a reservation to the vendor of a right to re- 
 purchase the same land at a fixed price and at a specified time, would be to- 
 transfer to the court of chancery, in a considerable degree, the guardianship of 
 adults as well as of infants ; " per Marshall, C. J., in Conway's Exr's. v. Alexan- 
 der, 7 Cr. 218, 237: Slutz v. Desenberg, 28 O. S. 371; Plagg v. Mann, 14 Pick. 
 467; Beck v. Blue, 42 Ala. 32; Eich v. Doane, 35 Vt. 125; Hanford v. BLessing, 
 80 111.188; Cornells. Hall, 22 Mich. 377; Henley v. Hotaling, 41 Cal. 22; Huf- 
 fier o. Womack, 30 Tex. 332; Turner v. Kerr, 44 Mo. 429; Spenee v. Steadman, 
 49 Ga. 133; Daniels v. Johnson, 24 Mich. 430; Hughes v. Sheaff, 19 la. 385.] 
 
 (c) See Douglas v: Culverwell, 31 L. J. Ch. 543 ; [Peugh v. Davis, 96 U. S„ 
 
 506 
 
BELIEF AGAINST PENALTIES, ETC. 447" 
 
 look into the true character of a transaction purporting to bo an. 
 absolute sale, and see whether a mortgage or an absolute sale was- 
 intended (a). " But it is equally clear, that if the parties intended 
 an absolute sale, a contemporaneous agi'eement for a repur- 
 chase, not acted upon, will not of itself entitle the vendor to re- 
 deem " (ft). 
 
 *The manner in which equity deals with mortgage trans- [447 
 actions is but one consequence of a more general proposition, which 
 is this: that 
 
 " Where there is a debt actually due, and in respect of that debt a se-- 
 curity is given, be it by way of mortgage or be it by way of stipulation 
 that in case of its not being paid at the time appointed a larger sum shall 
 become payable, and be paid, in either of those cases Equity regards the- 
 seeurity which has been given as a mere pledge for the debt, and it will 
 not allow either a forfeiture of the property pledged, or any augmentation 
 of the debt as a penal provision, on the ground that Equity regards the 
 contemplated forfeiture which might take place at law with reference to 
 the estate as in the nature of a penal provision, against which Equity will 
 relieve when the object in view, namely, the securing of the debt, is attained, 
 and regarding also the stipulation for the payment of, a larger sum of 
 money, if the sum be not paid at the time it is due, as a penalty and a 
 forfeiture against which Equity will relieve" (c) 
 
 This applies not only to securities for the payment of money but 
 to all cases " where a penalty is inserted merely to secure the en- 
 joyment of a collateral object (d). In all such eases the penal sum 
 was originally recoverable in full in a court of law, but actions 
 brought to recover penalties stipulated for by bonds or other agree- 
 
 • 332; Russell v. Southard, 12 How. 139 ; "Wilsons Giddings, 28 0. S. 554; Camp- 
 bell v. Dearborn, 109 Mass. 130; Snavely v. Fickle, 29 Gratt. 27; Pierce v. Rob- 
 inson, 13 Cal. 116 ; Klein v. McNamara, 54 Miss. 90; French v. Burns, 35 Conn. 
 359; Hills v. Loorais, 42 Vt. 562; Saunders v. Stewart, 7 Nev. 200; "Wilcox v.. 
 Bates, 26 Wis. 465; Horn v. Keteltas, 46 N. Y. 605; Sweet v. Parker, 22 N. J- 
 Eq. 453; Ruckman v. Alwood, 71 111.155; Gibbs v. Penny, 43 Tex. 560; ONeil 
 v. Capelle, 62 Mo. 202; Moore v. Wade, 8 Kan. 380; Carr v. Carr, 52 N, Y. 
 251, 260 ; Jones on Mortgages, Ch. VIII.] 
 
 (a) Gardner v. Cazenove, 1 H. & N. 423, 435, 438; 26 L. J. Ex. .17, 19, 20 j 
 [Blanohard v. Fearing, 4 Allen, 118; Howard v. Odell, 1 Allen, 85.] 
 
 (b) Per Lord Cottenham, C, Williams v. Owen, 5 M. & Cr. 303, 306; [see- 
 note (b), last page. 
 
 (c) Per Lord Hatherley, C, Thompson v. Hudson, L. R. 4 H. L. 1, 15. 
 
 (d) Per Lord Thurlow, Sloman v. Walter, 2 Wh. & T. L. C. 1094 [4th Am, 
 ed. 2023]. 
 
 507 
 
448 CHAP. VIII. MISTAKE. 
 
 ments have for a long time been governed by statutes (a). And a 
 mortgagee suing at law in ejectment, or on a bond given as col- 
 lateral security (b), may be compelled by rule of Court to r'ecbnvey 
 
 • on payment of principal, interest, and costs (c). 
 
 It would lead us too. far beyond our present object to discuss the 
 
 ■ cases in which the question, often a very nice one, has arisen, 
 whether a sum agreed to be paid upon a breach of contract is a 
 penalty or liquidated damages. It may be noted however, in 
 passing, that " the words liquidated damages or penalty are not con- 
 448] elusive as to the character of the sum stipulated to be *paid," 
 which must be determined from the matter of the agreement (d). 
 
 3. Peculiar Defenses and Remedies derived from Equity. 
 
 A. Defense against Specific Performance. 
 
 When by reason of a mistake (e.g. omitting some terms which 
 were part of the intended agreement) a contract in writing fails to 
 express the real meaning of the parties, the party interested in 
 having the real and original agreement adhered to (e.g. the one for 
 whose benefit the omitted term was) is in the following position. 
 
 If the other party sues him in equity for the specific perform- 
 ance of the contract as expressed in writing, it will be a good de- 
 fense if he can show that the written contract does not represent 
 the real agreement : and this whether the contract is of a kind re- 
 quired by law to be in writing or not (e). Thus specific perform^ 
 
 (a) As to common money bonds: 4 & 5 Anne, c. 16, s. 13; C. L. P. Act 1860 
 [23 & 24 Vict. c. 126), s. 25. As to other bonds and agreements : 8 & 9 Wm. 
 3, c. 11, s. 8. The' statutes are collected and reviewed in the late case of Pres- 
 ton v. Dania, L. R. 8 Ex. 19. 
 
 (b) This is now very infrequent in practice. 
 
 . (c) 7 Geo. 2, c. 20; 0. L. P. Act 1852 (15 & 16 Vict. c. 76), s. 219. 
 
 (d) Per Bramwell, B., Betts- v. Burch, 4H.&H. 506, 511 ; 28 L. J. Ex. 267, 
 271 ; Leak on Contracts, 573, 578 [2d bd. 1080, 1090]. The latest cases on this 
 subject in Common Law and Equity respectively are — Lea v. Whitaker, L. B. 
 8 C. P. 78; Magee v. Lavell, 9 C. P. 107 ; Ex parte D'Alteyrac, 15 Eq. 36; Ex 
 parte Capper, 4 Ch. D. 724. In the Indian Contract Act the knot is cut by 
 
 :.abolishing the distinction altogether : see s. 74; [Whitfield v. Levy, 35 N. J. L. 
 
 149; Thoroughgood v. Walker, 2 Jones L. 15; liagley v. Peddie, 16 N.V.469; 
 
 Tenner v. Hammond, 36 Wis. 277v; Morris v. McCoy, 7 Nev. 399; Dwinel v. 
 
 Brown, 54 Me. 468, 471; Wallis v. Carpenter, 13 Allen, 19; Shreve v. Brere- , 
 
 ton, 51 Pa. St. 175; Trustees v. Walrath, 27 Mich. 232; Sehofield v. Tompkins, 
 .Sup. Ct. 111. 10 Rep. 140.] 
 
 (e) [Chambers u. Livermor'e, 15 Mich. 381, 389 ; Bradbury v. White, 4 Me. 
 
 508 
 
RELIEF AGAINST PENALTIES, ETC. 44& 
 
 anee has been. refused where a clause had been introduced by inad- 
 vertence into the contract (a). It is sometimes said with reference 
 to. eases of this class that the remedy of specific performance is 
 discretionary. But this means a judicial and regular, not an ar- 
 bitrary discretion (b). The Court "must be satisfied that the 
 agreement would not have been entered into if its true effect had 
 been understood" (a). 
 
 On the other hand a party can not, at all events where the con- 
 tract is required. by law to be in writing, come forward as plaintiff" 
 to claim the performance of the real agreement which is not com- 
 pletely expressed by the written contract (c). Thus in the case of 
 
 391 ; Bradford v. Bank, 13 How. 57, 66; Lucas v. Mitchell, 3 A. K. Marsh. 244 r 
 246; Best v. Stow, 2 Sandf. Cb. 298; Osborn v. Phelps, 19 Conn. 63, 73.] 
 
 (a) "Watson v. Marston, 4 D. M. G. 230, 240. 
 
 (b) [The same has often been said of all suits for specific performance : Pom- 
 eroy on Specific Performance, § 35 sqq.; Story Eq. Jur. § 742; 2 "Wh. & T. L, 
 C. 999-1000.] 
 
 (c) [But, independently of the statute of frauds, no good reason can be given 
 why, in a case of mistake, he should not be permitted to do so; and in this- 
 country it is generally held that a plaintiff may, in the same suit, have a writ- 
 ten contract reformed for mistake, and the contract thus reformed specifically 
 enforced: Keisselbraek v. Livingston, 4 Johns. Ch. 144; Stone v. Bellows, 14 
 N. H. 175, 201; Rogers *. Atkinson, 1 Kelly, 12, 23-25; Hunter v. Bilyeu, 30' 
 111. 228 ; Murphy v. Kooney, 45 Cal. 78 ; Mosby v. Wall. 23 Miss. 81 ; Waterman 
 v. Dutton, 6 Wis. 265. 
 
 In some of the cases cited, the contract was within the statute of frauds, but 
 the better opinion" is that a court of equity has no power, on parol evidence, to ■ 
 reform a contract within the statute, so as to make it apply to a subject-matter 
 to which, as written, it does not refer: Cline v. Hovey, 15 Mich. 18; Elder v. 
 Elder, 10 Me. 80 ; Osborn v. Phelps, 19 Conn. 63 ; cp. Lee v. Hills, 66 Ind. 474. 
 : In Glass v. Hulbert, 102 Mass. 24, the plaintiff asked that a deed made to- 
 him should be so reformed as to accord with the oral agreement of the parties, 
 by making it include land omitted by fraud or mistake. It was held that Fuch 
 relief must be denied. " Rectification by making the contract include obliga- - 
 tions or subject-matter to which its written terms will not apply is a direct en- 
 forcement of the oral agreement, as much in conflict with the statute of frauds 
 as if there were no writing at all:" and see Churchill v. Rogers, 3 T. B. Mon. 
 81 ; Westbrook v. Harbeson, 2 McCord's Eq. 112. 
 
 But the«statute does not prevent the rectification of a deed so as to restrains 
 its terms as written, and make them conform to the oral agreement; Elder v~ 
 Elder, 10 Me. 80, 90; Gillespie u. Moon, 2 Johns. Ch. 585; Cook©. Preston, 2 
 Root, 78; Newsom v. Bufferlow, 1 Bev. Eq. 379; Busby v. Littlefield, 11 Post. 
 193; Worley v. Tuggle, 4 Bush, 168; Hileman v. Wright, 9 Ind. 126. 
 
 There are decisions, however, and numerous dicta, to the effect that a deed or- 
 
 509 
 
449 CHAP. VIII. MISTAKE. 
 
 Townsnend v. Stangroom («) (referred to by Lord Hatberley, when 
 Y.-C, as perhaps the best illustration of the principle) (6) there 
 •were cross suits (c) one for the specific performance of a written 
 449] agreement as varied by an oral agreement, *the other for 
 specific performance of the written agreement without variation : 
 and the fact of the parol variations from the written agreement be- 
 ing established, both suits were dismissed. And the result of a 
 plaintiff attempting to enforce an agreement with alleged parol 
 variations, if the defendant disproves the variations and chooses to 
 abide by the written agreement, may be a decree for the specific 
 performance of the agreement as it stands at the plaintiffs cost (4). 
 But it is open to a plaintiff to admit a parol addition or variation 
 made for the defendant's benefit, and so enforce specific perform- 
 ance which the defendant might have successfully resisted if it had 
 been sought to enforce the written agreement simply. This -was 
 settled in Martin v. Pycroft (e) : " The decision of the Court of 
 
 contract to convey may be Testified so as to conform to an oral agreement by 
 making it include land to which its written terms do not apply: Wall t>. Ar- 
 rington, 13 Ga. 88; Blodgett v. Hobert, 18 Vt. 414; Philpott v. Elliott, 4 Md- 
 Ch. 273; Willis v. Henderson, 4 Scam. 13; Trout v. Goodman, 7 Ga/383; and 
 see Craig v. Kittredge, 3 Post. 231; De Peyster v. Hasbrouckj 11 N. Y. 582; 
 Wiswall v. Hall, 3 Paige, 313; Smith v. Greely, 14 N. H. 378; Worley v. Tug. 
 gle, 4 Bush, 168.] 
 
 ( a) 6 Ves. 328. (i) Wood ». Scarth, 2 K. & J. 33, 42. 
 
 (ay Under the Judicature Acts, there would be an action and counter- 
 claim. 
 
 (d) See Higginson c. Clowes, 15 Ves. 516, 525; and such, it is submitted, is 
 the real effect of Fife v. Clayton, 13 Ves. 546, s. e. more fully given 1 C. P. 
 Cooper (temp. Cottenham) 351: the different statement in Dart, V. & P. 1116, 
 appears on examination to be hardly borne out by either report, and is at all 
 events not consistent with Townshend v. Stangroom, or with the general doc- 
 trine of the court. In this case Lord Eldon laid hold on the plaintiff's attempt 
 to set up a variation, combined with an offer in general terms to perform, the 
 agreement, as amounting to an offer to perform whatever the court might con- 
 sider the real agreement, perhaps even if established by evidence which would 
 otherwise have been admissible only by way of defense. But after a plaintiff 
 has failed to support his own construction of. an agreement which the court 
 thinks ambiguous, he can not take. advantage of such an offer contained in his 
 own pleadings " to take up the other construction which the defendant was at 
 one time willing to have performed: Clowes v. Higginson, 1 Ves. &, B. 524, 
 535. [See Pomeroy on Spec. Perf., \ 247, n. 1.] 
 
 [e) 2 D. M. G. 785; [Ives v. Hazard, 4 K. I. 14; Park v. Johnson, 4 Allen* 
 .259.] 
 
 510 
 
IN EXPRESSION : VARIATIONS OF WRITTEN AGREEMENTS. 450 
 
 .Appeal proceeded on the ground that an agreement by parol to pay 
 200/. as a premium for ... a lease' [for which there was a 
 ■complete agreement in writing not mentioning the premium] was 
 no ground for refusing specific performance of the written agree- 
 ment for the lease, where the plaintiff submitted byihis bill to pay 
 the 200/. That case introduced no new principle as to the admis- 
 sibility of parol evidence" (a). 
 
 It is to be observed (though the observation is now familiar? 
 that, these doctrines are in principle independent of the Statute of 
 Frauds (b). What the fourth section of the Statute of Frauds 
 -says is that in respect of the matters comprised in it no agreement 
 not in writing and duly signed shall be sued upon. This in no way 
 prevents either party from showing that the writing on which 
 *the other insists does not represent the real agreement; it [450 
 is only when the real agreement can not be positively established 
 by a writing which satisfies the requirements of the statute that the 
 statute interferes. Then there is nothing which can be enforced 
 .at all. The writing can not, because it is not the real agreement; 
 nor yet the real agreement, because it is not in writing. 
 
 A good instance of this state of things is Price v. Ley (c). The 
 suit was brought mainly to set aside the written agreement, and 
 so far succeeded. It appears not to have been seriously attempted 
 to insist upon the real agreement which had not been put into 
 -writing. 
 
 B. Rectification of Instruments. 
 
 When the parties to an agreement have determined to embody 
 their common intention in the appropriate and conclusive form, 
 .and the instrument meant to effect this purpose is by mistake so 
 framed as not to express the real intention which it ought to have 
 ■expressed, it is possible in many cases to correct the mistake by 
 means of a jurisdiction formerly peculiar to courts of equity, and 
 .still reserved, as a matter of procedure, to the Chancery Division (d). 
 
 (a) Per Stuart, V.-C. Price v. Ley, 4 Giff. at p. 253. 
 
 (b) See per Lord liedesdale, in Olinan v. Cooke, 1 Sch. & L. 33-39. [See 
 page 448, n. (c).] 
 
 te (a) 4 (Jiff. 235, affirmed on appeal, 32 L. J. Ch. 534. 
 
 (cl) ['• Where an instrument is drawn and executed, which professes, or is in- 
 tended to carry into execution an agreement, whether in writing or by parol, 
 previously entered into, but which, by mistake of the draftsman, either as to 
 
 511 
 
451 CHAP. VIII. MISTAKE. 
 
 Courts of equity " assume a jurisdiction to reform instruments 1 
 which, either by" the' fraud Or mistake of the drawer, admit of a 
 construction inconsistent with the true agreement of the parties. 
 And of necessity, in the exercise of this jurisdiction a court of 
 equity receives evidence of the true agreement in contradiction of 
 the written instrument." Belief will not be refused though the 
 party seeking relief himself drew the instrument; for "every party 
 who comes to be relieved against an agreement which he has signed, 
 by whomsoever drawn, comes to be relieved against his own mis- 
 take" (a). The jurisdiction is a substantive and independent one, 
 so that it does not matter whether the party seeking relief would 
 or would not be able to get the benefit of the true intention of the- 
 contract by any other form of remedy (b). It would be neither 
 practicable nor desirable to discuss minutely the very numertms 
 cases in which this jurisdiction has been exemplified. The most 
 451] important thing to be known about u ^discretionary power 
 of this kind is whether there is any settled rule by which its exer- 
 cise is limited. In this case there are ample authorities to show 
 that there is such a rule, and they expound it so fully that there is- 
 very little left to be added by way of comment. 
 
 The manner in which the Court proceeds is put in a very clear 
 light by the opening of Lord Bomilly's judgment in the case of 
 Murray v. Parker (c) : — 
 
 "In matters of mistake, the Court undoubtedly has jurisdiction, and' 
 though this jurisdiction is to be exercised with great caution and care r 
 still it is to be exercised in all cases where a deed, as executed, in not ac- 
 cording to the real agreement between the parties. In all cases the real 
 
 fact or law, does not fulfill, or which violates the manifest intention of the par- 
 ties to the agreement, equity will correct the mistake, so as to produce a con- 
 formity of the instrument to the agreement:" Hunt v. Rousmaniere's Adm'r., 1 
 Pet. 1, 13; Walden o. Skinner, 101 U. S. 577, 583; Essex v. Insurance Co., 3 
 Mason, 6, 10; Gammaye v. Moore, 42 Tex. 170; Stone v. Hale, 17 Ala. 557;. 
 Inskoe v. Proctor, 6 T. B. Mon. 311 ; Gower v. Sterner, 2 "Whart. 75 ; Smith v. 
 Jordan, 13 Minn. 264; Miller v. Davis, 10 Kan. 541; McKay v. Simpson, 6' 
 Ired. Eq. 452; Tesson v. Insurance Co., 40 Mo. 33; Loss v. Obry, 22 N.J. 
 Eq. 52.] 
 
 (a) JBall v. Storie, 1 Sim & St. 210, 219. 
 
 (b) Druiff v. Lord Parker, 5 Eq. 131. [But "where the intention of the par- 
 ties to a contract is sufficiently apparent to be recognized in any court, the fact, 
 that a word is omitted is no sufficient reason for bringing a' party into a court 
 of equity for a reformation of the contract:" Railroad Co. v. Speer, 32 Ga. 550.], 
 
 (e) 1-9 Beav. 306, 308. 
 512 
 
RECTIFICATION OF INSTRUMENTS. 452". 
 
 agreement must be established by evidence, -whether parol or written ; if 
 there be a previons agreement in writing which is unambiguous, the deed 
 will be reformed accordingly; if ambiguous parol evidence may be used 
 to explain it, in the same manner as in other cases where parol evidence- 
 is admitted to explain ambiguities in a written instrument." 
 
 In the cg.se of " a previous agreement iii writing which is unam- 
 biguous" the Court can not admit parol evidence to rectify the final 
 instrument executed in accordance with such agreement any more 
 than it could allow the party to maintain a suit, while the agreement 
 was yet executory, first to rectify the agreement by parol evidence 
 and then execute it as rectified — which, as we have seen, it will not 
 do. For this would be to " reform [the instrument] by that evi- 
 dence, which if [the instrument] rested in fieri, would be inadmis- 
 sible to aid in carrying it into execution" (a). 
 
 This language, it will be seen, is not in terms confined to cases 
 within the Statute of Frauds. But it might perhaps well be argued, 
 should the occasion for it ever arise, that no other cases were in. 
 fact contemplated by Lord St. Leonards in giving the judgment 
 now cited. 
 
 But what if there be no previons agreement in writing at all?" 
 Can a deed be rectified on oral evidence of what was the real 
 intention of the parties at the time, in the absence of any better? 
 *We can not find that any positive and direct answer has [452 
 been given to this question. An old unreported case has been pre- 
 served as cited in argument which, if the statement of it could 
 be relied on, would indeed be a clear authority for the nega- 
 tive (6). However the modern decisions do not seem to go be- 
 yond requiring the best evidence that can be had in each particu- 
 lar case. 
 
 Lord St. Leonards said in Alexander v. Crosbie (c) : 
 
 " In all the eases, perhaps, in which the Court has reformed a settle- 
 ment, there has been something beyond the parol evidence, such for in- 
 stance as the instructions for preparing the conveyance or a note by the 
 attorney, and the mistake properly accounted for; but the Court would, I 
 think, act where the mistake is clearly established by parol evidence, 
 even though there is nothing in writing to which the parol evidence may 
 attach." 
 
 '(a) Per Lord St. Leonards, Davies v. Fitton, 2 Dr. & War. 225, 233. 
 (6) Hardwood v. Wallace, 2 Ves. Sr. 195. 
 
 (e) LI. & G. temp. Sugden, 145, 150. Cp. Davies v. Fitton, 2 Dr. & War. 233_ 
 33 513 
 
453 CHAP. VIII. MISTAKE. 
 
 This opinion was approved "by 'Stuart, V.-C, in Moss v. Har- 
 ter (a). 
 
 And again in Mortimer v. Shortall (6): " There is no objection 
 to correct a deed by parol evidence, when you have any thing be- 
 yond the parol evidence to go by. Bat where there is nothing but 
 the recollection of witnesses, and the defendant by his answer denies 
 ■the case set vp by the plaintiff, the plaintiff appears to be without a 
 remedy. Here I am not acting upon parol evidence alone ; the 
 documents in the cause, and the subsequent transactions, corroborate 
 the parol evidence, and leave no doubt in my mind as to a mistake 
 having been made." As Lord St. Leonards expressly professed, 
 in this case to adhere to what he said in Alexander v. Crosbie, 
 we must infer that a mistake which is positively denied by one 
 party can not be ever considered as " clearly established " on parol 
 ■evidence. 
 
 Again, it was said in a case on the equity side of the Court of 
 Exchequer where the whole subject was considerably discussed : 
 
 " It seems that the Court ought not in any case, where the mistake is de- 
 nied or not admitted, by the answer, to admit parol evidence, and upon that 
 evidence to reform an executory agreement" (c). 
 
 453] *On the other hand, when the mistake is admitted, or not 
 positively denied, there seems to be no difficulty in reforming a 
 written instrument on parol evidence alone (<f). 
 
 The result seems to be that in the absence of any evidence in 
 writing of the real previous agreement, oral evidence of it, if not 
 contradicted, maybe admitted (e). 
 
 Thus far as to the nature of the evidence required ; next let us 
 see what it must prove. It is indispensable that the evidence 
 should amount to "proof of a mistake common to all the par- 
 
 (o) 18 Jur. 973, 976. (6) 2 Dr. & War. 363, 374. 
 
 (c) Per Alderson, B., Attyi-Genl. v. Sitwell, 1 T. & C. Ex. 559, 583. 
 
 (d) T'ownshend v. Stangroom, 6 Ves. 328, 334, Ball i>. Storie, 1 Sim. & St. 
 210; Druiff v. Lord Parker, 5 Eq. 181; Ex parte National Provincial Bank of 
 England, 4 Ch. D. 241. 
 
 (e) [That a deed may be rectified on oral evidence of what was the real in- 
 tention of the parties, see Canedy v. Marcy, 18 Gray, 373; McMillan «. Pish,. 
 29 N. J. Eq. 610; Coale v. Merryman, 35 Md. 382 ; Wyche i>. Green, 11 Ga. 159, 
 169; Hugs v. Morris, 63 Pa. St. 367; Sbattuck v. Gay, 45 yt. 87; Hudspeth v. 
 Thomason, 46 Ala. 470; Clayton v. Freet, 10 O. S'! 544;"ahd supra, p. 448, 
 Dote (c).] ■' ' •'-■'' ' ■' ■■->'. : 
 
 514 
 
RECTIFICATION OF INSTRUMENTS. 153 
 
 -ties" (a), i.e., a common intention different from the expressed in- 
 tention and a common mistaken supposition that it is rightly ex- 
 pressed : it matters not, as we have seen, by whom the actual over- 
 sight or error is made which causes the expression to be wrong. 
 The leading principle of equity on the head of rectification, viz., 
 that there must be clear proof of a real agreement of both par- 
 ties different from the expressed agreement, and that a different 
 intention or mistake of one party alone is no ground to vary the 
 .agreement expressed in writing, was distinctly laid down by Lord 
 Hardwicke as long ago as 1749 (6). 
 
 The same thing was very explicitly asserted in Fowler v. 
 Fowler (c) : 
 
 " The power which the Court possesses of reforming written agreements 
 where there has been an omission or insertion of stipulations contrary to 
 the intention of the parties and under a mutual mistake, is one which 
 has been frequently and most usefully exercised. But it is also one which 
 should be used with extreme care and caution. To substitute a new 
 agreement for one which the parties have deliberately subscribed ought 
 only to be permitted upon evidence of a different intention of the clearest 
 and most satisfactory description ( d). It is clear that a person who seeks 
 
 (a) Per Lord Eomilly, M. E., Bentley v. Mackay, 31 Beav. at p. 151. 
 
 (6) Henkle v. Boyal Exch. Assce. Co., 1 Ves. Sr. 318; [and see Lyman v. In- 
 surance Co., 17 Johns. 373, 377; Nevius v. Dunlap, 33 N. Y. 676; Bryce u. In- 
 surance Co., 55 N. Y. 240; Mead v. Insurance Co., 64 N. Y. 453; Diman v. 
 Railroad Co., 5 B. I. 130; Cooper v. Insurance Co.. 50 Pa. St. 299; Brainard v. 
 Arnold, 27 Conn. 617, 624; Baldwin v. Kerlin, 46 Ind. 426; Sawyer v. Hovey, 
 3 Allen, 331; Ludmgton v. Ford, 33 Mich. 123; Bamsey v. Smith, 32 N. J. 
 Eq. 28. 
 
 But the instrument will be reformed when, by reason of mistake on the part 
 of the plaintiff, and fraud on the part of the defendant, it fails, as written, to 
 •express the agreement actually made: Welles v. Yates, 44 N. Y. 525; Kilmer 
 v. Smith, 77 N. Y. 226; Hay v. Insurance Co., 77, N". Y. 235; Metcalfe. Put- 
 nam, 9 Allen, 97 ; New v. Wambach, 42 Ind. 456 ; Berger v. Ebey, 88 111. 269; 
 .Smith v. Jordan, 13 Minn. 264.] 
 
 (e) 4 De G. & J. 250, 264. 
 
 (d) [The ordinary rule of evidence in civil actions, that a fact must be 
 " proved by a preponderance of evidence, does not apply to such a case as this. 
 The proof that both parties intended to have the precise agreement set forth 
 inserted in the deed, and omitted to do so by mistake, must be made beyond a 
 reasonable doubt, and so as to overcome the strong presumption, arising from 
 their signatures and seals, that the contrary was the fact:" Hudson Iron Co. v. 
 Stoekbridge Iron Co., 102 Mass, 48,. 49 ; Potter v. Potter, 27 O. S. 84 ; State v. 
 Prank. 51 Mo. 98 ; Shively v. Welch, 2 Oreg. 288 ; Goodell v. Pield, 15 Vt. 448; 
 Lyman v. Insurance Co., 2 Johns. Ch. 630; Tripp v. Hasceig, 20 Mich. 254; 
 
 515 
 
454 CHAP. VIII. MISTAKE. 
 
 to rectify a deed upon the ground of mistake must be required to estab- 
 lish, in the clearest and most satisfactory manner, that the alleged inten- 
 tion to which he desires it, to be made conformable continued concur- 
 rently in the minds of all parties down to the time of its execution and 
 also must be able to show exactly and precisely the form to which the- 
 454] deed ought to be *brought. ' For there is a material difference be- 
 tween setting aside an instrument and rectifying ib on the ground of a 
 mistake. In the latter case you can only act upon the mutual and con- 
 current intention of all parties for whom the court is virtually making a 
 new written agreement" (a). 
 
 So it has been laid down by the American Supreme Court that 
 Equity may compel parties to perforin their agreement, but has no- 
 power to make agreements for parties and then compel them to- 
 execute the same (6) ; to the same effect in Eooke v. Lord Ken- 
 sington (c) by Lord Hatherley when Y.-C. ; and more recently by 
 James, L. J., when V.-C, in Mackenzie v. Coulston (d) On this 
 principle, as we have already seen, the jurisdiction to rectify in- 
 struments does not extend beyond particular expressions. The 
 Court can not alter that form of instrument which the parties- 
 have deliberately chosen (6). 
 
 The Court therefore can not act on proof of what was intended 
 by one party only (e). And when an instrument contains a variety 
 of provisions, and some of the clauses may have been passed over 
 without attention, "the single fact of there being no discussion on 
 a particular point will not justify the Court in saying that a mis- 
 take committed on one side must be taken to be mutual " (/). 
 
 Miner v. Hess, 47 111. 170; Tufts v. Lamed, 27 la. 330; Harter v. Christoph, 32: 
 Wis. 245; Tucker v. Madden, 44 Me. 206; Davidson D.Greer, 3 Sneed, 384; 
 Insurance Co. v. Crane, 16 Md. 260; Linn u. Barkey, 7 Ind. 69; Coles u~ 
 Bowne, 10 Paige, 526; Edmond's Appeal, 59 Pa. St. 220. 
 
 Where the fact of a mistake in an instrument is admitted, a preponderance- 
 of evidence may be sufficient to show what was intended to have been, inserted 
 in place of the erroneous matter: Bunse v. Agee, 47 Mo. 270.] 
 
 (a) 4 I)eG. & J., pp. 264-5. 
 
 (b) Hunt v. Kousmaniere's Adm'r., 1 Pet. 14, p. 395, above. 
 (o) 2 K & J. 753, 764. (d) 8 Bq. 368, 375. 
 
 (e) Hills v. Rowland, 4 D. M. G. 430, 436; [supra, p. 453, note (6): "A mis- 
 take on one side may be ground for rescinding, but not for reforming a writ- 
 ten agreement : Delany v. Rogers, 50 Md. 524, 533 ; Diman v. Bailroad Co., 5 
 B. 1. 130; Hearne v. Insurance Co., 20 Wall. 488, 491.] 
 
 (/) Thompson v. Whitmore, 1 J. & H. 268, 276. 
 516 
 
RECTIFICATION OF INSTRUMENTS. 455 
 
 The Court will not rectify an instrument when the result of doing 
 -so would be to affect interests already acquired by third parties on 
 the faith of the instrument as it stood (a). l 
 
 Without derogation from the above general rules, a contract of in- 
 s-surance is liberally construed for the purpose of -reforming the pol- 
 icy founded upon it in accordance with the true intention (b) 
 
 There exists a rare class of cases (we know of only one complete 
 instance at present) in which the rule that a common mistake must 
 be shown may admit of modification. This is where one party acts 
 as another's agent in preparing an instrument which concerns 
 them both — (in the particular case an intended *husband [455 
 ihad the marriage settlement prepared in great haste and without 
 any advice being taken on the wife's part) — and that other gives 
 no definite instructions, but relies on the good faith and competence 
 >of the acting party to carry out the true intention. Here the act- 
 ing party takes on himself the duty of framing a proper instrument 
 — such an instrument, in fact, as would be sanctioned by the Court 
 if the Court' had to execute the agreement. And the instrument 
 -actually prepared, and executed by the other party on the assump- 
 tion that it is properly framed, may be corrected accordingly (c) 
 
 But cases of this kind would perhaps be better put on the ground 
 that the acting party is estopped by his conduct from denying that 
 'the intention of the other party was in fact the common intention 
 'Of both. Compare p. 430 above. 
 
 The most frequent application [in England] of the jurisdiction 
 •of equity to rectify instruments is in the case of marriage and 
 other family settlements (d), when there is a discrepance between 
 the preliminary memorandum or articles and the settlement as 
 'finally executed. As to marriage settlements, the distinction was 
 formerly held that if both the articles and the settlement were 
 antenuptial, the settlement should be taken in case of variance as 
 .a new agreement superseding the articles, unless expressly men- 
 
 ' (a) Blackie v: Clark, 15 Beav. 595; [Henry v. Smith, 76 N. C. 311; Kilpat- 
 rick v. Kilpatrick, 23 Miss. 124; Burke v. Anderson, 40 Ga. 535; Dart v. Bar- 
 bour, 32 Mich. 267; Wheeler v. Kirtland, 23 N. J. Bq. 13, 26; Whitman v. 
 Weston, 30 Me. 285.] 
 
 (b) Equitable Insurance Co. a. Hearne, 20 Wall. 494. 
 
 (c) Clark v. Girdwood, 7 Ch. D. 9, on the authority of Corley v. Lord Staf- 
 ford; 1 De G. & J. 238, where however there was no .rectification. [Cp. Scott 
 *». Duncan, 1 Dev. Eq. 403.] 
 
 (d) See further on this subject Dav. Conv. 3, pt. 1. Appx. Ho. 3..- 
 
 517 
 
456 CHAP. VIII. MISTAKE. 
 
 tioned to, be made in pursuance of the articles ; but that a post-- 
 nuptial settlement would always be reformed in accordance with: 
 antenuptial articles. The modern doctrine of the Court has mod- 
 ified this as follows, so far as regards settlements executed after- 
 preliminary articles but before the marriage : 
 
 1. When the settlement purports to be in pursuance of articles 
 previously entered into, and there is any variance, the variance will 
 be presumed to have arisen from mistake. 
 
 2. When the settlement does not refer to the articles, it will nofc 
 be presumed, but it may be proved, that the settlement was meant 
 to be in conformity with the articles, and that any variance arose 
 from a mistake. , 
 
 456] *In the first case the Court will act on the presumption,, 
 in the second on clear and satisfactory evidence of the mistake (a).. 
 
 A settlement may be rectified even against previous articles on 
 the settlor's uncontradicted evidence of departure from the real 
 intention (6). 
 
 The fact that a provision inserted in a settlement (e.g., restraint- 
 on anticipation of the income of the wife's property), is in itself 
 usual and is generally considered proper, is not a ground for the 
 Court refusing to strike it out when its insertion is shown to have 
 been contrary to the desire of the parties and to the instructions 
 given by them (c). There is, however, a general presumption, in 
 the absence of distinct or complete evidence of actual intention,, 
 that the parties intend a settlement to contain dispositions and" 
 provisions of the kind usual under the circumstances : see pp. 434r-5- 
 above. 
 
 It is not necessary that a person claiming to have a settlement rec- 
 tified should be or represent a party to the original contract, or be 
 within the consideration of it (d). But a deed which is wholly 
 voluntary in its inception can not be reformed if the grantor con- 
 
 (o.) Bold v. Hutchinson, 5 D. M. G. 558, 56T, 568. In reforming asettlement- 
 the intent rather than the literal words of the articles will be. followed: for a- 
 late instance, see Cogan v. Duffield (C. A.), 2 Ch. D. 44. As to the general 
 principles on which courts of equity construe instruments creating executory- 
 trusts, see Sackville-West v. Viscount Holmesdale, L. Ii. 4 H. L. 543, 555, 565. 
 
 (b) Smith v. Iliffe, 20 Eq. 666. [See Hanley v. Pearson, 13 Ch. D. 545.] 
 
 (c) Torre, v. Torre, 1 Sm. & G. 518. 
 
 (d) Thompson p. Whitmore, 1 J. & H. 268, 273; [but see Cook v. Walker, 2li 
 Ga. 370.] 
 
 518 
 
KECTIFICATION OF INSTRUMENTS. 457 
 
 tests it, but must stand or fall in its original condition without 
 alteration (a); the reason of this has been explained to be that an 
 agreement between parties for the due execution of a volun- 
 tary deed is not a contract which the Court can interfere to en- 
 force (6) 
 
 But the Court has power to set aside a voluntary deed in part 
 only at the suit of the grantor if he is content that the rest should 
 stand (e). 
 
 Some cases of a rather peculiar kind which have already been 
 touched upon under another heading (d) must here be mentioned 
 as in apparent conflict with one of the rules above stated. 
 
 *In these instances the plaintiff sought to reform an instru- [457 
 ment, and satisfied the Court that it did not represent what was 
 his own intention at the time of execution, but failed to establish 
 that the other party's intention was the same ; and since it was " in 
 the power of the Court to put the parties in the same position as 
 if the contract had not been executed," an option was given to the 
 defendant .of " having the whole contract annulled, or else of tak- 
 ing it in the form which the plaintiff intended" (e). This is 
 hardly an exception to the rule that the Court does not interfere to 
 rectify a mistake unless it is shown to have been common to both 
 parties; for here the rectification is only an alternative proposal. 
 The Court says to the defendant in effect: Either the agreement 
 between you was such as the plaintiff says it was, or there was no 
 real agreement at all. Take which of these two views 3 r ou please, 
 but it is certain that the terms you have contended for were never 
 agreed to by the plaintiff, and by them at all events he is not to be 
 bound. 
 
 When a conveyance is rectified the order of the Court is sufficient 
 without a new deed. A copy of the order is indorsed on the deed, 
 which is to be rectified (/). 
 
 (a) Broun v. Kennedy, 33 Beav. at p. 147. 
 (6) Lister v. Hodgson, 4 Eq. at p. 34. 
 
 (c) Turner v. Collins, 7 Ch. 329, 342 ; and see per Turner, L. J., Bentley »_ 
 Mackay, 4 D. P. J. 286 ; [Mitchell v. Mitchell, 40 Ga. 11.] 
 
 (d) Supra, p. 416. 
 
 (e) Harris v. Pepperell, 5 Eq. 1, 5; Garrard v. Frankel, 30 Beav. 445; Bloomer 
 ■v. Spittle, 13 Eq. 427;. [see supra, p. 416.] 
 
 (/) White v. White. 15 Eq. 247; [Hanley v. Pearson, 13 Oh. D. 545.] 
 
 519 
 
458 chap. Yin. mistake. 
 
 . APPENDIX E. (See p. 408, above.) 
 
 Mr. Benjamin's remarks on Boulton o. Jones (Benjamin on Sale, 47, 
 324 [2d Am. ed. §§ 59, 416]) deserve much consideration. He appears to 
 think that the actual existence of a set-off in favor of the defendants 
 against Brocklehurst, to whom the order was addressed, was necessary to 
 the decision. And in the report which he follows (27 L. J. Ex. 117) the 
 fact that such a set-off existed does certainly come into much more promi- 
 nence than in the case as reported in H. & N. One can not differ with- 
 out hesitation from so learned and accurate a writer as Mr. Benjamin: 
 but it is submitted that according to his view the plaintiff's claim sho'uld 
 have failed not wholly, but only so far as the defendants were prejudiced 
 byhis substitution for the person with whom they intended to contract: 
 that is, there should have been a good cause of action for the excess (if 
 458] any) of the price of the goods over *the set-off; this being the 
 amount which the defendants in fact intended to pay, The defendants 
 would then have been in the same position as if they had been dealing 
 ■with an agent for an undisclosed principal. But this analogy was ex- 
 pressly held to be inapplicable; and it seems to us that the decision rests 
 on the broad ground that independently of any question of s'et-off, there 
 was no contract: not an express one, for the defendants' order was not 
 addressed to the plaintiff; not an implied one, for the defendants ac- 
 cepted and kept the goods withbut knowing that they were the plaint- 
 iff's (a). 
 
 Mr. Benjamin further suggests that the plaintiff can not be supposed 
 
 (a) [In Boston Ice Co. -o. Potter, 123 Mass-. 28, A. had been supplying B. 
 "with ice, and B., on account of dissatisfaction with the former, ceased taking 
 ice from A. and contracted for ice with 0. Subsequently A. bought C.'s busi- 
 ness, with the privilege of supplying ice to C.'s customers, and delivered ice to 
 B. without notifying him of the purchase of C.'s business until after the deliv- 
 ery and consumption of the ice. It was held that A. could not maintain an 
 action against B. for the price of the ice. "To entitle the plaintiff to recover, 
 it must show some contract with the defendant. There was no express con- 
 tract, and upon the facts stated no contract is to be implied." Referring to 
 Boulton v. Jones, and the existence of a set-off in that case, the court say: 
 " The fact that a defendant in a particular case has a claim in set-off against the 
 original contracting party shows clearly the injustice of forcing another person 
 upon him to execute the contract without his consent, against whom his set-off 
 would not be available. But the actual existence of the claim in set-off can 
 not be a test to determine that there is no implied assumpsit or privity be- 
 tween the parties. Nor can the non-existence of a set-off raise an implied as- 
 sumpsit. If there is such a set-off, it is sufficient to state that, as a reason why 
 the defendant should prevail; hut it by no means follows that, because it does 
 not exist, the plaintiff can maintain his action. The right 'to maintain an ac- 
 tion can never depend upon whether the defendant has or has not a defense to 
 520 
 
MISTAKE IN WILLS. 459 
 
 -to haVebeen wholly without remedy, and that he might in someway have 
 'obtained relief against the defendants in equity. It is difficult however 
 to see how the defendants could be liable in equity any more than at law 
 ■otherwise than on a contract express or implied. A constructive trust 
 for the plaintiff of the set-off against Brocklehurst would only be another 
 form of implied contract. The plaintiff's proper remedy would have 
 been to sue in the name of Brocklehurst, and possibly Brocklehurst 
 would have been bound iu equity to allow his name to be used. But this 
 would depend on the terms on which his business was made over to the 
 -plaintiff, and to do complete justice in the matter it would have been 
 necessary to know those terms. What was really wanted- was the power 
 io add Brocklehurst as a party to the cause, which could not be done at 
 comm'on law. The Court is now able to provide for such cases. See the 
 Judicature Act, 187-3, s. 24, sub-s. 1, and the Rules of the Supreme Court, 
 -Order XIV., rr. 3, 4, 6, 13. 
 
 APPENDIX F. 
 
 It may not be without interest to observe that Bracton in his chapter 
 De acquirendo rerum dominio, fo. 16, treats the subject of fundamental error 
 "very much as it is treated in our modern law. " Item non valet donatio, 
 nisi tarn dantis quam accipientis concurrat mutuus consensus et voluntas, 
 seu quod donator habeat animum donandi et donatorius animum recipi- 
 endi. . . Item oportet quod non sit error in re data, quia si donator 
 
 senserit de una re et donatorius de alia, non valet donatio propter dis- 
 sensum: et idem erit si dissentio fiat in genere, numero, et quantitate. 
 
 . . . [Then follow instances.] Et in fine notandum quod si in cor- 
 pus quod traditur sit consensum, non nocet, quamvis circa causam dandi 
 -atque recipiendi sit dissentio: ut si pecuniam numeratam tibi tradam, 
 vel quid tale, ettu earn quasi traditam accipias, constat, ad teproprietatpm 
 transire." This last instance is almost in the words of the *Di- [459 
 gest, 41. 1. de acq. rer. dom. 36, from which we should probably write 
 ereditam for traditam in Bracton's text. Guterbock (Henricus dc Bracton, 
 •p. 8o) assumes somewhat hastily that Bracton misunderstood the passage. 
 With Thorbughgood's ease (p. 401, supra) and other authorities of that 
 -clnss we may also compare what Fleta has upon the possible defenses to 
 an action on a deed (lib. 6, c. 33, § 2). '' Si autem vocatus dicat quod carta 
 sibi nocere non debeat . . . vel quia per dolum advenit, ut si cartam 
 -de feoffamento sigillatam [sic : one or more words seem to have dropped 
 out] cum soriptum de termino annorum sigillare crediderit, vel ut si carta 
 
 it;" and it was held to be immaterial that defendant had no claim in set-off 
 
 .against C. 
 
 521 
 
460 CHAP. VIII. MISTAKE. 
 
 fieri debuit ad vitam, illam fecit fieri in feodo et hujusmodi, dum tamerr 
 nihil sit quod imperitiae vel negligentiae suae possit imputari ut \_qu. ut 
 si] sigillum suum Senescallo tradiderit vel uxori quod cautius debuit cus- 
 todivisse." 
 
 APPENDIX G. 
 
 It seems convenient to note, though it is not strictly within the scope 
 of the present undertaking, that there is no jurisdiction in any court to 
 rectify a will on the ground of mistake. The Court of Probate may reject 
 words of which the testator is proved to have been ignorant, whether in- 
 serted by the fraud or by the mistake of the person who prepared the 
 will. But it has no power to remedy a mistake " by modifying the lan- 
 guage used by the draftsman and adopted by the testator so as to make- 
 it express the supposed intention of the testator. . . . Such 
 a mode of dealing with wills would lead to the most dangerous conse- 
 quences, for it would convert the Court of Probate into a court of con- 
 struction of a very peculiar kind, whose duty it would be to shape the- 
 will into conformity with the supposed intentions of the testator " (a). 
 Exactly the same rule has been laid down in equity (b). 
 
 The cases in which it is said that the Court will interfere to correct mis- 
 takes in wills may be classified thus : 
 
 1. Cases purely of construction according to the general intention col- 
 lected from the will itself (e). 
 
 2. Cases of equivocal description, of words used in a special habitual 
 sense (c), or of a wrongly given name which may be corrected by a suffi- 
 cient description (d). 
 
 460J *3. Cases of dispositions made on what is called a false cause (e), 
 i.e., on the mistaken assumption of a particular state of facts existing,, 
 except on which assumption the disposition would not have been made. 
 These are analogous to the cases of contract governed by Couturier v. 
 
 (a) Harter v. Harter, L. E. 3 P. & D. 11, 21, following Guardhouse v. Black- 
 burn, L. K. 1 P. & D. 109. 
 
 (b) Newburgh v. Newburgh, 5 Madd. 364. [See Jarman on "Wills, Randolph 
 & Talcott ed. 717 sqq. ; Sherwood v. Sherwood, 45 Wis. 357.] 
 
 (c) See Hawkins on Construction of Wills, Introduction. 
 
 (</) Not only an equivocal name may be explained, but a name which ap- 
 plies to only, one person may be corrected by a description sufficiently showing 
 that another person is intended: Charter v. Charter, L. E. 7 H. L. 364. 
 
 (e) Campbell v. French, 3 Ves. 321; [Mordecai v. Boylan, 6 Jones Eq. 365;; 
 cp. Gifford v. Dyer, 2 R. I. 99; Hayes' Ex'rs. v. Hayes, 21 N. J. Eq. 265; Dun- 
 ham v. Averill, 45 Conn. 61, 80.] 
 522 
 
MISTAKE IN WILLS. 460 1 
 
 Hastie (a): and just as in those oases, the expressed intention is treated' 
 as having been dependent on a condition which has failed. 
 
 But it seems more proper to say in all these cases, not that the words- 
 are corrected, but that the intention when clearly ascertained is carried 
 out, notwithstanding the apparent difficulty caused by the particular 
 words. 
 
 (a) 5 H. L. C. 673; supra, p. 425. 
 
 523 
 
-461, 462 CHAP. IX. MISREPRESENTATION AND FRAUD. 
 
 461] *CHAPTER IX. 
 
 MISEEPEESENTATION AND EEAUD. 
 
 Part I. — Misrepresentation. 
 
 The consent of one party to a contract may be caused by a mis- 
 representation made by the other of some matter, such that, if he 
 had known the truth concerning it, he would not have entered into 
 the contract. Putting off for a while the closer definition of the 
 term, we see at once that there is a broad distinction between 
 fraudulent and non-fraudulent misrepresentation. A statement 
 may be made with knowledge of its falsehood and intent to mislead 
 the other party, or with reckless ignorance as to its truth or false- 
 hood. In either of these cases the' making of it is wrongful in a 
 moral and also in a legal sense, and the conduct, of the party mak- 
 ing it is called Fraud. There has never been any substantial diffi- 
 culty as to the treatment of such conduct in English courts of jus- 
 tice. On the other hand a statement which in fact is not trite and 
 misleads the other party may be made by mere carelessness or mis- 
 adventure, or with an actual belief in its truth, which belief may 
 or may not be reasonably entertained. The treatment of cases of 
 this kind is far more difficult. In our common law it is pretty well 
 defined, but inadequate ; in equity it is adequate, or rapidly becom- 
 ing so, but not exactly defined, and the only safe way to arrive at 
 any probable conclusion is still to trace out the doctrines of com- 
 mon law and equity separately. Complication and confusion have 
 arisen from more than one source. The most fruitful of these has 
 been the unfortunate use of the term Fraud in the Court of Chan- 
 462] eery as nomen generalissimum (a). *The probable historical 
 explanation is that in earlier times this was the only means of ex- 
 tending and completing a beneficial jurisdiction ; but such a habit 
 of speech is in itself open to grave objection on practical as well 
 
 .as scientific grounds (b). It has given us such phrases as " con- 
 fa) See 8 Ch. 124. 
 lb) The ambiguous use of the word leads, on the one hand, to unfounded 
 
 •charges of fraud in the strict sense, and on the other hand to the absence of 
 524 
 
OF REPRESENTATIONS IN GENERAL. 463- 
 
 structive fraud," conduct "amounting to fraud in the contemplation 
 of a Court of Equity," and the like descriptions, under which it is- 
 possible to bring almost any thing (a). In courts of law too some 
 difficulty has been caused by the indefinite use of the term Fraud, 
 but more particularly by the assumption that the right of rescind- 
 ing a contract on the ground of a false representation must needs 
 be strictly co-extensive with the right of bringing a distinct action 
 of deceit, in which the representation is treated as a substantive- 
 wrong. 
 
 Again, there is this unavoidable confusion in practice, at any rat© 
 in equity, that the question of innocent misrepresentation is sel- 
 dom or never raised as a neat point. The cases are almost in- 
 variably mixed up with charges of actual fraud, of which it is 
 sometimes not easy to ascertain the precise effect. 
 
 It will be understood therefore that we approach the subject with 
 considerable diffidence. We will first endeavor to deal with the 
 more troublesome part of it, namely, non-fraudulent representa- 
 tions. 
 
 "A representation is a statement or assertion made by the one 
 party to the other, before or at the time of the contract, of some 
 matter or circumstance relating to it" (b). The judgment of tho 
 Exchequer Chamber from which we take this definition goes on to 
 state that, apart from fraud, which must be ■ separately considered, 
 and apart from certain exceptional classes of contracts, the validity 
 of a contract is not affected if a representation so made is found to- 
 be untrue (much less if there is a mere omission to state a material 
 fact), nor is such untruth or omission any cause of action (that is, 
 of a separate independent action in tort). 
 
 *A representation, however, may be made an essential [463 
 part of the contract, so that the contract is conditional upon its 
 truth. It is then said so be a condition (c). 
 
 Or there may be a distinct collateral agreement that the repre- 
 
 fraud in that sense being set up in answer to a case which is really of a quite- 
 different kind. 
 
 (a) See the wonderfully miscellaneous contents of the chapters on "Actual 
 Fraud" and "Constructive Fraud" in Story's Eq. Jurisp. 
 
 (b) Per Cur., Behn v. Burness (Ex. Ch.) 3 B. & S. 751 ; 32 L. J. Q. B. 204. 
 
 (c) Or, "warranty in the nature of a condition." see per Channel], B. 8 E. &■ 
 B. 302. But the use of the word warranty alone in this sense, though to some 
 extent sanctioned by the court, has been elsewhere deprecated by considerable- 
 authorities, and is clearly undesirable. 
 
 525 
 
464 CHAP. IX. MISREPRESENTATION AND FRAUD. 
 
 •sentation shall be true, so that its untruth, if so it prove, does not 
 avoid the contract, but it is a matter for compensation. It is then 
 «aid to be a warranty, 
 
 The classes of contracts which are exceptionally treated are 
 these : 
 
 (A) Marine insurance. 
 
 (B) Fire insurance. 
 
 (C) Suretyship. 
 
 (D) Sales of land. 
 
 (B) (In equity) Family settlements. 
 
 The peculiarity common to most of them, on which the exception 
 is founded, is that the subject-matter of the contract is especially 
 within the knowledge of one party, and the other has to rely, in the 
 first instance at all events, on the correctness of the statements made 
 by him. The same reason applies, and has been applied by recent 
 ■decisions to 
 
 (F) Contracts to take shares in companies and contracts of pro- 
 moters (a). 
 
 So far, then, the rule is certain both as regards cases where there 
 is a condition or warranty, and as regards the excepted classes of 
 contracts. The question remains, however, whether equity juris- 
 prudence does not furnish us with a wider general rule. 
 
 Certainly it would be possible to express it in a similar form by 
 enlarging the number of excepted cases: and it so far agrees with 
 the common law that mere non-disclosure of material facts is prima 
 facie no ground for rescinding a contract. But the prevailing 
 464] tendency of authorities, and a certain amount of definite *au- 
 thority (though less than one might expect) are for putting the 
 rule the other way : and on the whole the rule of equity, which 
 is now the general rule of the Court, may be considered to stand 
 thus : — 
 
 A contract is voidable at the option of a party who has been 
 induced to enter into it by a statement contrary to the fact made 
 by the other party without reasonable grounds for believing it, 
 though he does in fact believe it ; 
 
 or by the other's silence as to a material fact which, having re- 
 
 (d) It is not easy to say whether this last extension would have been adopted 
 by courts of common law before the Judicature Acts. Kennedy v. Panama, 
 .&c, Meil Co., L. R. 2 Q. B. 580, p. 413, above, seems against it, but the question 
 was not fairly raised. It is now of no practical importance: the affirmative 
 l? assumed in the text lor simplicity's sake. 
 526 
 
GENERAL RULES. WARRANTY AND CONDITION. 4C5 
 
 gard to the nature of the contract or the position of the parties, it 
 is his duty to communicate : 
 
 Such statement or omission as aforesaid is called a misrepresen- 
 tation. 
 
 A contract is not voidable on the ground of misrcpi-esentation, 
 if the party seeking to set it aside has made independent inquiries 
 in the matter of the representation and acted on his own judg- 
 ment ; 
 
 or, where the misrepresentation consists in silence, if he had the 
 means of discovering the truth with ordinary diligence. 
 
 Such are bolieved to be the doctrines of common law and equity 
 in their general outline. We proceed to follow them out in the 
 order above given, beginning with the special topics for which 
 special rules are clearly established. After this we shall be in a 
 better position to judge how far any of these special rules are really 
 treated as general rules in equity. 
 
 Representations amounting to Warranty or Condition. 
 
 The law on this subject is to be found chiefly in the decisions on 
 the sale of goods ; the principles, however, are of general import- 
 ance, and not without analogies, as we shall presently see. in other 
 doctrines commonly treated as quite peculiar to equity. We there- 
 fore mention the leading points in this place, though very briefly. 
 In the first place a buyer has aright to expect a merchantable arti- 
 cle answering the description in the contract (a) ; but this is not 
 on the ground of warranty (6), but because the seller does not fulfill 
 the contract by giving him something different. " If a man offers 
 to buy peas of another and he sends *him beans, he does not [465 
 perform his contract ; but that is not a warranty,; there is no war- 
 ranty that he should sell him peas ; the contract is to sell peas, and 
 if he sends any thing else in their stead it is a non-performance of 
 
 (a), Jones v. Just, L. R. 3 Q. B. 197, 204; [Hastings v. Lovering, 2 Pick. 
 214; Brantley v. Thomas, 22 Tex. 270; Jennings v. Gratz, 3 Rawle, 168; Bab- 
 cock v. Trice, 18 111. 420; Doane v. Dunham, 65 111. 512; Moorehouse v. Corn- 
 stock, 42 Wis. 026 ; McClung v. Kelly, 21 la. 508 ; Howard v. Hoey, 23 Wend. 
 350; Gossler v. Eagle Sugar Refinery, 103 Mass. 331.] ' 
 
 (b) [''In a sale of goods, by description, where the buyer has not inspected 
 the goods, there is, in addition to, the condition precedent that the goods shall 
 answer the description, ail implied warranty that they shall be salable or mer- 
 chantable:" Benjamin on Sales, 2d Am. ed. 611; and see cases in preceding 
 note.] ■•'■■.' ; - 
 
 527 
 
465 CHAP. IX. MISREPRESENTATION AND FRAUD. 
 
 it". (a). So that, even if it be a special term of the contract that, 
 the buyer shall not refuse to accept goods bought by sample on the- 
 score of the quality not being equal to sample, but shall take them 
 with an allowance, he is not bound to accept goods of a different 
 kind (b). It is open to the parties to add to the ordinary descrip- 
 tion of the thing contracted for any other term they please, so as 
 to make that an essential part of the contract; a term so added is 
 a condition. If it be not fulfilled the buyer is not bound to accept 
 or keep the goods even if there has been a bargain and sale of spe- 
 cific goods (c). A warranty is an undertaking which, though part 
 
 (re) I>ord Abinger, C. B., in Chanter v. Hopkins, 4 M. & W. 399, 404; "as 
 sound an exposition of. the law as can be," per Martin, B. Azemar v. Casella 
 (Ex. Ch.) L. B. 2 C. P. 677, 679; [ " In strictness, both warranty and rescission 
 import that the subject is within the contract, and passed to the purchaser by 
 its operation. The rejection of articles of a different kind or description, not 
 answering to the terms of the contract, does not stand upon the ground of re- 
 scission; nor does the right to return them depend upon the existence of a war- 
 rant." Mansfield v. Trigg, 113 Mass. 350, 354-5. 
 
 But it is generally held that the sale of goods by a particular description may 
 also he treated as a warranty that they answer the description ; "White a. Mil- 
 ler, 71 N. T. 118; Van Wyck v. Allen, 69 N. Y. 61; Hastings v. Lovering, 2 
 Pick. 214; Borrekins v. Bevan, 3 Eawle, 23 ; Babcock v. Trice, 18 111. 420; Os- 
 good v. Lewis, 2 H. & G. 495 ; Benjamin on Sale, 2d Am. ed. 553, note (p). 
 
 " The right to repudiate the purchase for the non-conformity of the article- 
 delivered, to the description under which it was sold, is universally conceded^ 
 That right is founded on the engagement of the. vendor, by such description, 
 that the article delivered shall correspond with the description. The obligation 
 Tests upon the contract. Substantially the description is warranted. It will 
 comport with sound legal principles to treat such engagements as conditions in 
 order to afford the purchaser a more enlarged remedy, by rescission, than he- 
 would have on a simple warranty; but when his situation has been changed,, 
 and the remedy, by repudiation, has become impossible, no reason supported by 
 principle can be adduced, why he should not have upon his contract, such re- 
 dress as is practicable under the circumstances. In that situation of affairs, the- 
 only available means of redress is by an action for damages. Whether the ac- 
 tion shall be technically considered an action on a warranty, or an action for 
 the non-performance of a contract, is entirely immaterial." Wolcott «. Mount,. 
 36 N.J. L. 262, 266-7.] 
 
 (J) Azemar v. Casella, L. E. 2 C. P. 431, in Ex. Ch. 677. [So, if goods sold 
 are to be taken with all faults, the buyer can not reject them for faults not in- 
 consistent with their identity as goods of the kind described, but would not be 
 obliged to accept them if of a difficult kind: "Whitney v. Boardman, 118 Mass. 
 242.] 
 
 (c) Benjamin on Sale 488 sqq. [2d Am. ed. 553 sqq. On a bargain and sale» 
 of a specific article, described as a certain substance, the purchaser is not bound 
 528 
 
MARINE AND LIFE INSURANCE. V'Ai" 46R 
 
 of the contract, is " collateral to the express object of it" (a). 
 When specific goods have been sold with a warranty the buyer can* 
 not reject them (b), but may obtain compensation by way of deduc- 
 tion from the price, or by a cross action (c). 
 
 When there has been a sale with a warranty of goods not in ex- 
 istence or not ascertained, and the warranty is broken, the buyer 
 may refuse to accept the goods, and this after keeping them, if 
 necessary, for a time reasonably sufficient for trial or examination,, 
 provided ho has not exercised further acts of ownership over them (d).. 
 This appears at first sight to put a warranty on the same footing as 
 a condition where the sale is not of specific goods; but the true ex- 
 planation is that given by Lord Abinger — that the tender of an ar- 
 ticle not corresponding *to the warranty is not a perform- [466 
 
 to accept, or keep it, if it turns out to be a different substance: Henshaw v. 
 Bobbins, 9 Met. 83; Hawkins v. Pemberton, 51 N. Y. 198. 
 
 In Lord v. Grow, 39 Pa. St. 88, it was held that on a sale of personal prop- 
 erty on inspection, there is no engagement on the part of the vendor that it is 
 of the kind it is sold for, though the difference in species be not discoverable- 
 by inspection ; contra, that there is an implied warranty to that effect: Wol- 
 cott v. Mount, 36 N. J. L. 262; S. C, 38 JSf. J. L. 496; Henshaw v. Bobbins, 9' 
 Met. 83; Hawkins v. Pemberton, 51 N. T. 198. 
 
 So it is also held that there is an implied warranty on the sale of a note or 
 bill that it is a genuine obligation of the sort it purports to be and is sold for: 
 Merriam u. Wolcott, 3 Allen, 258; Worthington v. Cowles, 112 Mass. 30; Du- 
 mont ». Williamson, 18 0. S. 515; Aldrich v. Jackson, 5 R. I. 218; Giffert v. 
 West, 33 Wis. 617; Snyder v. Keno, 38 la. 329; Smith v. McNair, 19 Kan. 330 ; 
 cp. Otis v. Cullum, 92 U. S. 447 ; and see cases supra, p. 421, note (o!).] 
 
 (a) Lord Abinger, C. B., in Chanter v. Hopkins, supra. 
 
 (b) Heyworth v. Hutchinson, L. E. 2 Q. B. 447, but as to the application of 
 the rule in the particular case see Mr. Benjamin's remarks, p. 742 of his book 
 [2d Am. ed. 827'sqq.J [See supra, p. 421, ad fin., note (J).] 
 
 (c) The reduction 1 of the price can be only the actual loss of value : any fur- 
 ther damages must be the subject of a cross claim, which under the old practice* 
 required a separate action : Mondel v. Steel, 8 M. & W. 858, 871. [See Benja- 
 min on Sales, 2d Am. ed. 834 sqq.] But a defendant can now recover his whole 
 Carnages by counterclaim, and have judgment for the balance if it be in his 
 favor. Rules of the Supreme Court, Ord. XIX. r. 3, Ord. XXII. r. 10. 
 
 - (d) Heilbutt v. Hickson, L. R. 7 C. P. 438, 451 ; Indian Contract Act, s. 118; 
 [Conrad v, Dater, 2 Biss. 342 ; Doane v. Dunham, 65 111. 512.] It is not tha 
 buyer's duty to send the gdods back : it is enough for him to give a clear notice 
 that they are not accepted, and then it is the seller's business to fetch them: 
 Grimoldby v. Wells, L. R. 10 C. P. 391, 396. 
 
 34 529 
 
466 CHAP. IX. JlfSaiJPaESENTATION AND FRAUD. 
 
 anee of the contract (a). The warranty retains its peculiar effect 
 4n this, that if the buyer chooses to accept the goods, he has a distinct 
 collateral right of action on the warranty (6) whereas if there is a 
 condition but not a warranty the party may indeed insist on. the 
 condition, but if he accepts performance of the contract without it 
 he may have no claim to compensation: (c). Whether any term of 
 a contract is in fact a condition or a warranty is a question of con- 
 struction depending on the. language, used and to some extent on 
 ,the nature and circumstances of the transaction (d) 
 
 A. Marine Insurance. 
 
 The law as to the contract of marine insurance is peculiar. Not 
 •only misrepresentation but concealment (e) of a material fact, 
 " though made without any fraudulent intention, vitiates the 
 policy" (/), that is, makes it voidable at the underwriter's elec- 
 tion (g). 
 
 For this purpose a material fact does not, on the one hand, mean, 
 only such a fact as is '* material to the risks considered in their own 
 nature " ; nor on the other hand does it include every thing that 
 might influence the underwriter's judgment: the rule is "that all 
 should be disclosed which would affect the judgment of a rational 
 underwriter governing himself by the principles and calculations 
 ■on which underwriters do in practice act" (h). The only excep- 
 
 (a) And see Benjamin on Sale, 748 [2d Am. ed. 832]. 
 
 (&) [Hall v. Belknap, 37 Mich. 179; Douglass Axe Mfg. Co. a. Gardner, 10 
 Cush. 88; Mandel v. Buttles, 21 Minn. 391 ; Day v. Pool, 52 N. Y. 416; Parks 
 v. Morris Axe and Tool Co., 54 ST. Y. 586; Dounce v. Dow, 57 N. Y. 16,] 
 
 (c) [See Reed v. Randall, 29 N. Y. 358 ; Gaylord Mfg. Co. v. Allen, 53 N. Y. 
 515 ; Locke v. Williamson, 40 Wis. 377 ; Haase-p. Nonnemacher, 21 Minn. 486.] 
 
 (cQ An instructive case of a simple affirmation amounting, under special cir- 
 cumstances to a condition is Bannerman v. White, 10 C. B.. IS. S. 844; 31 L. J. 
 C. P. 28; Benjamin on Sale, 490 [2d Am. ed. 557]. 
 
 (e) This is the usual word, but non-discloure would be more accurate. 
 
 (f) Ionides v. Pender, L. R. 9 Q. B. 531, 537; 2 Wms. Saund. 555-9; [Me- 
 Lanahan v. Insurance Co., 1 Pet. 170, 185 ; Insurance Co. v. Stoney, Harper, 
 S35; Howell v. Insurance Co., 7 Ohio, 276, 282; Fiske v. Insurance Co., 15 
 ,Pick. 310, 316 ; Stacker v. Insurance Co., 6 Mass. 220, 225.] 
 
 (g) See Morrison v. Universal Marine Insurance Co.,L. R. 8 Ex. 197, 205. 
 (A) Parsons -on Insurance, adopted per Cur., Ionides' v. Pender, L. R. 9 Q. B. 
 
 at p. 539. What falls within this description is a question, of fact: Stribley v. 
 530 
 
^V 1 "* MARINE AND LIFE INSURANCE. 41 
 
 -tion is that the insured is not bound to communicate any thh: 
 -which js such matter of general, knowledge that he is entitled 
 assume the underwriter knows it already (a) and the obligation e: 
 tends not only to facts actually within the knowledge of the assure 
 but to facts which in the ordinary *course of business he [41 
 ought to know, though by the fraud or negligence of his agent 1 
 does not know them (b). 
 
 These rules have in modern times at any rate been uniform 
 treated both at law and in equity as determined by the exception 
 and speculative nature of this particular contract, and not affordii 
 ground for any conclusions of general law. That they do not a 
 ply to the contract of life insurance is clear from the judgments in tl 
 Exchequer Chamber in Wheelton v. Hardisty (c), though a diffe 
 ent opinion formerly prevailed, and in this very case was not co 
 tradicted in the court below. Practically life policies are almc 
 always framed with some sort of express reference to the stat 
 
 Imperial Marine Insurance Co., 1 Q. B. D. 507; [Insurance Co. v. Rudei 
 Adm'r., 6 Cr. 338 ; Rosenheim v. Insurance Co., 33 Mo. 230.] 
 
 (a) Morrison v. Universal Marine Insurance Co., L. R. 8 Ex. 40; [De Lc 
 guemere v. Insurance Co., 10 Johns. 120; Ruggles v. Insurance Co., 4 Masc 
 74, 80 ; Insurance Co. o. Stoney, Harper, 235 ; Kohne v. Insurance Co., 1 Was 
 C. C. 158; Folsom v. Insurance Co., 8 Blatchf. 170. But if the insured li 
 particular information of , the facts regarding an event generally known 
 have occurred he must disclose it; Moses v. Insurance Co., 1 Wash. C. C. 38. 
 
 (b) Froudfoot v. Montefiore, L. R. 2 Q. B. 511. [Cp. Ruggles v. Insuran 
 Co., 12 "Wheat. 408; Insurance' Co. v. Ruggles, 4 Mason, 74; Folsom v. Insi 
 ance Co., 8 Blatchf. 1 70.] But non-disclosure by an agent of the assured, wit 
 out fraudulent intention, avoids the policy only to the extent of the loss far ri 
 arising from the particular facts so withheld: Stribiey v. Imperial, &c, C 
 supra. [In Snow v. Insurance Co., 61. 1ST. Y. 160, it was held that a person 
 Liverpool, having directed a marine insurance to be procured at' New Yoi 
 
 .and having' subsequently received intelligence of a loss before his order w 
 executed, was not bound to transmit news of the loss, or countermand the ore 
 by ocean telegraph, although such telegraph was then f " used by merchants a 
 others, whenever in their judgment the interests of their business required t 
 necessary expense," the telegraph having been in operation between the t' 
 places about three months, the. rates being, high, and the messages bot,h)wa 
 Averaging. but about twenty-nine per day. Cp, Proudfoot v. Montefiore, supr 
 
 (c) 8 E. & B. 232, in Ex. Ch. 285; 26 L. J. Q. B. 265; 27 IbC 241 ; see esp< 
 ially those, of Crowder, J., and .Martin ..and Bramwell, BB. .Lindenau v. B. 
 borough, 8 B.-& C. 586, is virtually overruled by this. The actual decision y 
 probably right on the terms of the policy (see E. & B. 248), but this does'-j 
 
 appear in the report. ' "-■ '•',. 
 
 531 
 
468 CHAP. IX. MISREPRESENTATION, AND FRAUD. 
 
 ments made by the . assured as. to the health and circumstances of" 
 the life, insured. , .Not unfrequently it js provided that the declara- 
 tion of the assured shall be the. basis, of the, contract; and. if the 
 declaration thus made part of the. contract,. is not confined to the- 
 belief of the party (a), but poaitive : and unqualified, then the con- 
 tract is avoided by any material par.t of the statements being in,, 
 fact untrue, though not to the knowledge of the assured (6). 
 Where the insurance, is on, the party's own life, however, any un- 
 true answer given by himself to such questions as are usually asked 
 by insurance offices would be almost .necessarily known to be un- 
 true, and therefore fraudulent, apart from any special conditions. 
 Where a third person insures, he on, .whose life the insurance is 
 made (usually called " the life"), can not.be treated as the agent of 
 the assured, and false statements made by him or his referees can 
 not be pleaded as a fraud entitling the insurer to avoid the con- 
 tract (c). ■-.,.-.'• 
 
 468] *The late case of Attorney-General v. Eay belongs to the- 
 class here considered: the grant of a, life annuity by the Commis- 
 sioners for the reduction of the National Debt was set aside at the 
 suit of the Crown, the age of the life having been misstated ; not 
 so much on the ground of misrepresentatidn simply, as because, con- 
 sidering the statutory powers and duties of the commissioners " it 
 was an essential part of the contract itself that the representation 
 should be true" (d). 
 
 (a) [When the statement is confined to the belief of the party, to avoid the- 
 policy it must appear that it was untrue in some respect material to the risk,_ 
 and that he knew its incorrectness : Insurance Co. v. France, 94 U. S. 561.] 
 
 (6) Macdonald v. Law Union Insurance Co., L. R. 9 Q, B. 328; [Powers/!;. 
 Insurance Co., 50 Vt. 630; Cushman v. Insurance Co., 6.3 N. Y. 404, 409;- 
 Campbell v. Insurance Co., 98 Mass. 381.] 
 
 (c) "Wbeelton v. Hardisty, supra-.. The learned editor of Smith's Mercantile- 
 Luw (402, 8th ed.) seems to understand the case as deciding this point-only, and 
 treats Lindenau v. Desborough as still law; but the ground of the decision in 
 the Ex. Ch. was distinctly " that there was np express stipulation in the policy 
 that made, the accuracy of the statements the basis of the contract:" per- 
 Blackburn, J., L. E. 9 Q. B. 333; and : see Leake, 200-202 [2d ed. 416-41'8J»: 
 [Insurance Co. v. Day, 39 N. J. L. 89; as to concealment, Mallory v. Insurance- 
 Co.,, 47 N. Y. 52.] . 
 
 (d) 9 Ch. 397, 407,per Mellish, L. J., expressly comparing the case of a life- 
 policy, where the representations of the assured are made the basis of the con- 
 tract. .' •;•, - ■ •' 
 
 532 
 
.; ,.<T. •#«.*. : FIRE' ? iNSU'EANOE. '" 4 1 
 
 B. Fire Insurance. **'-' " 
 
 This contract is for similar reasons treated in somewhat the sari 
 -way as that of marine insurance, though hot to the same extent (c. 
 'The description of the insured' premises annexed to a fire polii 
 .amounts to a warranty (or rather warranty in the nature' of a co 
 dition) that at the date of the policy'the premises correspond' to ti 
 description, or at least-have not been altered so as to increase tJ 
 risk; and also' that during the ; time specified in the policy the a 
 sured will not voluntarily make any alteration in them such as 
 increase the risk. The description must be the basis of the co 
 •tract, for the terms of insurance can be calculated only on the su 
 position that the description in the policy shall remain substantial 
 •true while the risk is running (6). There are dicta in the boo 
 which seem to extend the analogy to marine insurance beyoi 
 this; but it is conceivtd that since Wheelton v. Hardisty (last j 
 they can not be relied on. 
 
 The effect of a misdescription of the goods- in a bill of lading, apa 
 from any fraudulent intention, e.g. of avoiding payment of a high 
 rate of freight, is not precisely settled : but it seems that at mc 
 il would limit the carrier's liability to what the value of the goo 
 would be if the description were correct (c). 
 
 At common law the concealment of the true value of goo 
 *was held to excuse a common carrier for any thing short [4( 
 of actual misfeasance, at all events if he had given notice that 
 would accept valuable parcels only on special terms (d) ; but tl 
 matter is now regulated by statute (e) 
 
 (a) [Insurance Co. •«. Harmer, 2 U. S. 452, 462 ; Clark v.' insurance Co. 
 How. 235, 249; Burritt v. Insurance Co,, 5 Hill, 188; Beebe v. Insurance Co., 
 
 ■ Conn. 51.] 
 
 (b) Sillem v. Thornton, 3 E. & B. 868; 23 L. J. Q. B. 362; where it was hi 
 ^accordingly that the addition of a third story to a house described as being 
 'two stories was a material' alteration, and discharged the insurer; and see f 
 ther, as to what amounts to material misdescription, Forbes & Co.'s claim, 
 Eq. 485; [Stetson v. Insurance Co., 4 Mass. 330, 337 ; 'Wood ' v. Insurance C 
 13 Conn. 533 ; Chase v. Insurance Co., 20 N: Y. 52.] 
 
 (c) Lebeau v.' General Steam Navigation Co., L. K. 8 C. P. 88. The pn 
 -decided is that the addition of the' words, "Weight, value, and contents i 
 
 known " by the ship-owner is an entire waiver of the description-; [and see 1? 
 irsett v. Ruark, 3 La. Ann'. 694.] '" » '" ; ■ "-" ■*"• • 
 
 (d) Batson v. Donovan, 4 B. & Aid. 21 ; [Magnin v. Dinsmore, 62 N. Y. i 
 70 N. Y. 410; Oppenheimer v. Express Co., 69 111. 62; Earnest v. Express t 
 1 Woods, 573; and see Lawson, Corifc. of' Carriers, J 20.] v 
 
 (el Smith, Merc. Law, 279 sqq. 
 
470 CHAP. IX. MISREPRESENTATION AND FRAUD. 
 
 C. Suretyship. 
 
 It is laid down that a surety is released from his obligation by 
 any misrepresentation or concealment amounting to misrepresenta- 
 tion of a material fact on the part of the creditor (a). The lan- 
 guage used in different cases is hardly consistent: the later decis- 
 ions establish however that the rule is not parallel to that of ma- 
 rine insurance : the creditor is not bound to volunteer information 
 as to the general credit of the debtor or any thing else which is 
 not part of the transaction itself to which the suretyship relates : 
 and on this point thereis no difference between law and equity (6). 
 But the surety is entitled to know the real nature of the transation 
 he guarantees and of the liability he is undertaking: and he gen- 
 erally and naturally looks to the creditor for information on this- 
 point, although he usually is acting at the debtor's request and as 
 his friend, and so relies on him for collateral information as to gen- 
 eral credit and the like. r In that case the creditor's description of 
 the transaction amounts to, or is at least evidence of, a representa- 
 tion that there is nothing further that might not naturally be ex- 
 pected to take place between the parties to a transaction such as 
 described. Whether a circumstance not disclosed is such that by 
 implication it is^represented not to exist depends on the nature of 
 the transaction and is generally a question of fact (c). Thus where 
 the suretyship was for a cash credit opened with the principal 
 debtor by a bank, and the cash credit was in fact applied to pay off 
 an old debt to the bank, the House of Lords held that the bank 
 was not bound to disclose this, no actual agreement being alleged 
 or shown that, the money should be so applied, and the thing being- 
 470] one which the surety might *naturally expect to happen (d). 
 So the creditor is not bound to tell the surety that the proposed 
 guaranty is to be substituted for a previous one given by another 
 
 (a) Railton v. Mathews, 10 01. & F. 934; [Doughty v. Savage, 28 Conn. 146, 
 155; Graves v. Bank, 10 Bush, 23.] 
 
 (6) Pledge v. Buss, Johns. 663; Wythes v. Lahouehere, 3 De G. & J. 593, 
 609, approving North British Insurance Co. v. Lloyd, 10 Ex. 523 ; 24 L. 3.- 
 Ex. 14; [Magee v. Insurance Co., 92 IT. S. 93; Sooy adsV State, 39 N. J. L. 
 135, 143; Bank v. Brownell, 9 R. I. 168; Van Arsdale v. Howard, 5 Ala. 596; 
 Ham v. Greve, 34 Ind. 18.] 
 
 (c) Lee v. Jones, 14 C. B. N. S. 386, in Ex: Ch. 17 C. B. N. S. 482; 503; 34 
 L. J. C. P. 131, 138, which may be taken as a judicial commentary on the rule- 
 given in Hamilton v. Watson, 12 CI. & P. 109. 
 
 {d) Hamilton v. Watson, 12 CI. & F. 109; ace. Pledge v. Buss, Johns. 663. 
 
 534 ..-■*?. .■.->■ : :-:■: ■ ,<■ 
 
SURETYSHIP. 47 
 
 person (a). But the surety is not liable if there is a secret agree 
 merit or arrangement which substantially varies the nature of th 
 transaction or of the liability to be undertaken : as where the suret 
 guarantees payment for goods to be sold to the principal debtor, bu 
 the real bargain, concealed from the surety, is that the debtor shal 
 pay for the goods a nominal price, exceeding the market price, am 
 the excess shall be applied in liquidation of an old debt (&) : o 
 where the loan to be guaranteed is obtained not in the ordinar; 
 way, but by an advance of trust funds of which the principa 
 debtor himself is a trustee (c). In Lee v, Jones (<2) there was 
 continuing guaranty of an agent's, liabilities in account with hi 
 employers. He was in fact already indebted to them beyond th 
 whole amount guaranteed by the surety's agreement, which was s 
 worded as to cover existing as well as future liabilities. The suret; 
 was not informed of this, and the recitals in the agreement, thoug] 
 not positively false, were of a misleading and dissembling charae 
 ter. The majority of the Court of Exchequer Chamber held tha 
 there was evidence of " studied effort to conceal the truth 
 amounting to fraud. And on the whole it appears from this cas 
 and JRailton v. Mathews (e) that the concealment from the suret; 
 of previous defaults of the principal debtor, when there is a con 
 tinuing guaranty of conduct of solvency, is in itself evidence ol 
 fraud (/). Where a person has become a surety on the faith of th 
 creditor's representation that another will become co-surety, he i 
 not bound if that other person does not join ; and in equity it make 
 no difference that the guaranty was under seal (g). Where a guar 
 
 (a) North British Insurance Co. v. Lloyd, 10 Ex. 523 ; 24 L. J. Ex. 14. 
 
 (A) Pidcock v. Bishop, 3 B. & C. G05 ; I. 0. A. s. 143, illust. 6. 
 
 (c) Squire v. Whitton, 1 H. L. C. 383, decided, however, chiefly on th 
 broader ground that there pan not be a contract of suretyship in blank, for n 
 creditor was ever named or specified to the surety. 
 
 \d) 17 0. B. N". S. 482; 34 L. J. Ex. 13 
 
 (e) 10 01. & P. 934. 
 
 (/) [Dinsmore v. Tidball, 34 O. S. 411; Sooy ads. State, 39 N. J. L. 135 
 Bank v. Cooper, 36 Me. 179; 39 Me. 542; cp. Etting v. Bank, 11 Wheat. 59 
 Insurance Co. v. Mabbett, 18 Wis. 667; Roper v. Trustees, 91 111. 518.1 
 
 (g) Rice v. Gordon, 11 Beav. 265; Evans v. Bremridge, 2 K. & J. 174; 8 J 
 M. G. 100; [Cowan v. Baird, 77 N. C. 201 ; Smith v. Doak, 3 Tex. 215; Jorda 
 v. Loftin, 13 Ala. 547 ; Miller v. Stem, 12 Pa. St. 383; Hill v. Sweetser, 5KB 
 168; Goff v, Bankston, 35 Miss. 518; cp. Moss v. Riddle, 5 Cr. 351.] The rul 
 
 535 
 
471 CHAP. IX. MISREPRESENTATION AND FRAUD. 
 
 471] anty was given to certain *judgment creditors in considera- 
 tion of their postponing a sale under an execution' already issued 
 against the principal debtor, but in fact they did not stop the sale, 
 l>eing unable to do so without the consent of other persons inter- 
 ested, it was held that the guaranty was inoperative (a) ;' but per- 
 haps this case is best accounted for as one of simple failure of con- 
 sideration ; for the consideration for the guaranty was not merely 
 the credit given to the principal debtor, but the immediate stopping 
 of the sale. 
 
 The authorities, taken as a whole, establish that as between cred- 
 itor and surety there is in point of law no positive duty to give in- 
 formation as to the relations between the creditor and the principal 
 debtor, but the surety is discharged if there is actual misrepresen- 
 tation, and that silence may in a particular case be equivalent to an 
 actual representation, whether it is so being a question of fact (b). 
 So far as these rales attach special duties to the creditor they do 
 not apply to a mere contract of indemnity (c). 
 
 D. Sales of land. 
 
 A misdescription materially affecting the value, title, or charac- 
 ter of the property sold will make the contract voidable at the 
 purchaser's option both at law and in equity, and this notwith- 
 standing special conditions of sale providing that errors of descrip- 
 tion shall be matter for compensation only. Plight v. Booth (d) is 
 a leading case on this subject. The contract was for the sale of 
 leasehold property, and the lease imposed restrictions against 
 •carrying on several trades, of which the particulars of sale 
 named only a few: it was held that the purchaser might rescind 
 the contract and recover back his deposit. Tindal, C. J., put the 
 reason of the case on exactly the same grounds which, as wo 
 
 does not apply if the surety's remedies are not really diminished: Cooper v. 
 Evans, 4 Eq. 45, where the principal debtor had not executed the bond, hut had 
 executed a separate agreement under seal. 
 
 (a) Cooper v. Joel, 1 D. F. J. 240. 
 
 (6) Cp. I. C. Al ss. 142-144 S. 143 : ''Any guarantee which the creditor has 
 obtained by means of keeping silence' as to a material' circumstance is invalid," 
 is probably not intended to go beyond the English law. 
 
 (e) Wayu. Hearn, 13 C. B. Ni S. 292; 32 L. J. C. P. 34: but the point of 
 that case is rather that there was no misrepresentation etas locum contraetui. 
 
 (d) 1 Bing. (N. C.) 370, 377; [Stevens v. Giddings, 45 Conn. 507; King v. 
 Knapp. 59 N. Y. 462.] 
 536 
 
"•SALES OF LAND : COMPENSATION. ' "' ' : 472 
 
 flhdl immediately see, hav6 been relied on in like cases by courts ol 
 equity. . i-„- 
 
 " Where the misdescription, although not proceeding from fraud, is in a 
 material and substantial point, so far affecting the subject-matter *of [472 
 the contract that it may reasonably be supposed that but for such mis- 
 description the purchaser might never have entered into the contract at 
 all, in such case the contract is avoided altogether, and the purchaser is 
 not bound to resort to the clause of compensation. Under such a state 
 of facts the purchaser may be considered as not having purchased the 
 thing which was really the subject of the sale." ' ' 
 
 So in Phillips v. Cal'dcleugh (a), where the contract was for the 
 •sale of a " freehold residence " — which means free of all incum- 
 brances (a) — and it appeared that the property was subject to re- 
 strictive covenants of some kind, the purchaser was held entitled 
 to rescind, though the covenants were in a deed prior to that fixed 
 by the contract as the commencement of the title. 
 
 In equity questions of this kind often arise in suits for specific 
 performance between vendors and purchasers of real estate, when 
 it is found that the actual tenure, quantity, or description of the 
 property varies from that which was stated in the contract. The 
 -effect of the conditions of sale in the particular instance has almost 
 -always to be considered, and the result of the variance maybe very 
 different according to these and according to the amount and import- 
 ance of the discrepance between the description and the fact (b). 
 
 (i). " If the failure is not substantial, equity will interfere " and 
 •enforce the contract at the instance of either party with proper 
 compensation (c). The purchaser, " if he gets substantially that 
 for which he bargains, must take a compensation for a deficiency 
 in the value " (d). Here the contract is valid and binding on both 
 parties, and the case is analogous to a sale of specific goods with a 
 'Collateral warranty. 
 
 (re) L. R. 4 Q. B. 159, 161.' [''In a contract for the purchase of a fee simple 
 -estate, if no incumbrance be communicated to the purchaser, or be known to 
 him to exist, he must suppose himself to purchase an unincumbered estate:" 
 ■Garnett ». Macon, 6 Call. 308, 368 ; Christian v. Cabell, 22 Gi-att. 82.] « 
 
 (J) See authorities collected on the subject generally, Dart, V. & P. 134 sqq., 
 •644, 654, 1055, 1067 sqq. : ' •-'■'■• ■ ■•-.,» 
 
 (e) Halsey v. Grant, 13 Ves. 73, 77. 
 
 (d) Dyei- v. Hargrave, 10 Ves. 506, 508 ; [Foley v. Crpw, 37 Md. 51 ; Stpddart 
 ■v. Smith, 5 Binney, 355, 362-3; King v. Bardeau, 6 Johns. Ch. 38; Winne v. 
 Reynolds, 6 Paige, 407, 412; Hepburn v. Auld, 5 Cr. 262, 278; see Arnold v. 
 .Arnold, 14 Ch. D. 270.] 
 
 537 
 
473 CHAP. IX. MISREPRESENTATION AND FRAUD. 
 
 (ii). There » a second class of cases wj which the contract is> 
 voidable at the option of the purchaser, so that he can not be forced^ 
 to complete even with compensation at the suit of the vendor, I ut 
 may elect either to be released from his bargain or to perform* it 
 with compensation. " G-enerally speaking, every purchaser has a 
 473] right to take what he can get, with compensation *for wliat 
 he can not get '' (a), even where he is not bound to accept what thu 
 other has to give him (b)\ 
 
 However, a purchaser's conduct may amount to an affirmation 
 of the contract and so deprive him of the right to rescind, but with- 
 out affecting the right to compensation (c) ; again, special condi- 
 tions may exclude the right to insist on compensation and leave- 
 only the right to rescind (d). 
 
 Under this head fall cases of misdescription affecting the value 
 of the property, such as a statement of the existence of tenancies, 
 not showing that they are under leases for lives at a low rent (e) ;. 
 or an unqualified statement of the recent occupation at a certain 
 rent, the letting value of the property having been meanwhile as- 
 certained to be less, and that occupation having been peculiar in its- 
 circumstances (/) ; or the description of the vendor's interest in 
 terms importing that it is free from incumbrances — such as "im- 
 mediate absolute reversion in fee simple " — where it is in fuct sub- 
 
 (a) Hughes v. Jones, 3 D. F. J. 307, 315; Leyland v. Illingwoith, 2 D. F. J. 
 248, 252. 
 
 (b) " If a person possessed of a term for 100 years contracts to sell the fee he- 
 can not compel the purchaser to take, but the purchaser can compel him to con- 
 vey the term." Per Lord Eldon, "Wood v. Griffith, 1 Swanst. at p. 54 (though 
 in this case not with compensation, see next page); and see Mortlock v. Buller, 
 10 Ves. 292, 315; [Wilson v. Cox, 50 Miss. 133; Erwin v. Myers, 46 Pa. St. 96; 
 Clarkee. Keins 12 Gratt. 98, 111; Luckett v. Williamson, 31 Mo. 54; Marshall 
 v. Caldwell, 11 Cal. 611; Bell v. Thompson, 34 Ala. 633; Harbers v. Gadsden^ 
 ,6 Rich. Eq. 284; Jacobs v. Locke, 2 Ired Eq. 286; Vorhees i\ De Meyer, 3 
 Sapdf. Ch. 614; Jones v, Shackelford, 2 Bibb, 410.] 
 
 (c) Hughes v. Jones, supra; [Foley v. Crow, 37 Md. 51.] 
 
 (d) Cordingley v. Cheeseborough, 3 Giff. 496; 4 D. F. J. 379, where the pur- 
 chaser claiming specific performance with compensation, and having rejected, 
 the vendor's offer to annul the contract and repay the purchassr his costs,, was- 
 made to perform the contract unconditionally. See further as to the effect <>f 
 
 .conditions of this kind. Mawson v. Fletcher, 6 Ch. 91. 
 [«). Hughes v. Jones, 3 D. F. J. 307. 
 (/) Dimmocku. Hallett, 2 Ch. 21. 
 538 
 
SALES OF LAND: WHERE COMPENSATION INAPPLICABLE. 474- 
 
 ject to undisclosed incumbrances («). The proper mode of assess- 
 ing compensation in a case of misstatement of profits has been re- 
 cently considered in the Court of Appeal (b). 
 
 The treatment of this class of cases in equity is analogous to the- 
 rules applied at common law to the sale of goods not specifically" 
 ascertained by sample or with a warranty : see p. 465, above. 
 
 The doctrine that a vendor who has less than he undertook to 
 sellis bound to give so much as he can give with an abatement of 
 the price applies, it is to be understood, only where the vendor has- 
 contracted to give the purchaser something which he professed 
 *to be, and the purchaser thought him to be, capable of giv- [474 
 ing. Where a husband and wife had agreed to sell the wife's es- 
 tate (her interest being correctly described and known to the pur- 
 • chaser), and the wife would not convey, the Court refused to com- 
 pel the husband to convey his own interest alone for ah abated. 
 price (c). 
 
 Also the Court will not order vendors who sell as trustees to per- 
 form their contract with compensation, on account of the prejudice 
 to the cestui que trust which might ensue (d). 
 
 (in). But, lastly, the variance may be so material (either in 
 quantity, or as amounting to a variance in kind) as to avoid the 
 sale altogether and to prevent not merely the general jurisdiction 
 
 (a) Torrance v. Bolton, 8. Ch. 118. Of the peculiar character of the non-dis- 
 closure in that case presently. Op. Phillips v. Caldeleugh, L. B. 4 Q. B. 159, p. 
 472 above. 
 
 (b) Powell v. Elliott, 10 Oh. 424. 
 
 (e) Castle v. Wilkinson. 5 Oh. 534 [Peeler v. Levy, 26 N. J. Eq. 330; Clarke 
 v. Reins,' 12 Gratt. 98.] In a late case where the husband had the reversion in 
 fee after a life interest to the wife, specific performance, with compensation was 
 granted: Barker v. Oox, 4 Oh. D. 464; sed qu. [If the wife of a vendor of" 
 land refuses to release her dower by joining in the execution of the deed, it is 
 held in some states that the purchaser may obtain specific performance with an 
 abatement from the purchase price; Wingate v. Hamilton, 7 Ind. 73; Wright 
 v. Young, 6 Wis. 127;, Zebley o. Sears, 38 la. 507; Woodbury v. Luddy, 14" 
 Allen, I; Davis v. Parker, 14 Allen, 94. qontra, Eiesz's Appeal, 73 Pa. St. 
 485-; Eeiliy v. Smith, 25 N. J.'Eq. 158; and see Sternberger v. McGovern, 56 
 
 N. Y. 12,- 
 
 " If the refusal of the wife is made in bad faith, or by the procurement of the 
 husband, merely to enable him to escape his just obligation, the. court may de- 
 cree a 'conveyance, by the. husband alone, and compel him to give indemnity by 
 mortice or otherwise against the claim of the wife;" Peeler v. Levy, 26 N. J- 
 Eq. 330, 335;. Young v. Paul, 2 Stockt. Ols. 401.]. . , 
 
 (d) Whites. Cuddon, 8 CI. &E. 760. .u',^v.>.- ' : '"■•' von •" ; 
 
475 CHAP. IX. MISREPRESENTATION AND FRAUD.; ': 
 
 -of the Court as to compensation, but' even special; provisions; for; 
 that purpose from having any application. M If,a man sells. free- i 
 told land, and it turns Out to be copyhold, that is. not a, ease for 
 compensation (a) ; so if it turns out to be long leasehold, that is not 
 a case for compensation; so if one sells property to another who is 
 particular!}' anxious to have the right of sporting over it, and it 
 turns out that he can not have the right of; sporting, because it 
 belongs to somebody ■ else . . . in all those eases the .Court, 
 simply says it will avoid the contract, and will not'allow either 
 party to enforce it unless the person who is. prejudiced by the error 
 be willing to perform the contract without compensation " (6). 
 This class of cases agrees with the last in the contract being void- 
 able at the option of the party misled, but it differs from it in this, 
 that if he elects to adopt the contract at all he must adopt it un- 
 conditionally, since compulsory performance with compensation 
 would here work the same injustice to the One party that compulsory 
 performance without compensation would work to the- other. Such 
 was the result in the case now cited of the real quantity of the prop-; 
 475] erty *falling short by nearly one-half of what, it had been 
 supposed to be (c). But in a later case where the- vendors were 
 found to be entitled only to an undivided moiety of the property 
 which they had professed to sell as an entirety, the Court found no 
 
 -difficulty in ordering specific performance with an abatement of 
 half the price at the suit of the purchaser, as no injustice would be 
 
 (a) And conversely, a man who buys an estate as copyhold is not bound to 
 accept it if it is in fact freehold. For " the motives and fancies Of mankind are in- 
 finite: and it is unnecessary for a man who has contracted to purchase one 
 thing to explain- why he refuses to accept another:" Ayles v. Oox, 16 Beav. 23. 
 
 (b) Earl of Durham v. Legavd, 34 Beav. 611. 
 
 (c) The price asked, had been fixed by reference to the rental alone. Qu. how, 
 the case would have stood could a price proportional to the area have been ar- 
 rived at. And see Swaisland v. Dearsley, 27 Beav. 430 (where it is left doubtful 
 whether the purchaser could ,or could not have enforced the contract with com- 
 pensation). Cp. IX 18. 1. de cont. erap. 22-24, enunciating precisely the same 
 principle as that applied- by our courts of equity. Hanc legem venditionis: Si 
 quid sacri vel religlosi est, ems venit nihil, supervacuam non esse, sed ad riiodica 
 loca pertinere: ceterum si omne religiosum, vel sacrum, vel publicum venierit, 
 nullam esse emtiopem : and seeeod. tit. 18, 40 pr. In Whiltemore v, Whitte- 
 more, 8 Eq. 603, a case of material deficiency in quantity, it was held that' a 
 
 -condition of sale providing generally that errors of description should be' only 
 matter of compensation did apply, but another excluding compensation for er- 
 rrors in quantity did not; so that on the whole the purchaser could : riot rescind, 
 *but was entitled to compensation. '" " '" ' . ■ , i. - ( -ij 
 
 540 
 
SALES OP. LAND :< WHERE COMPENSATION INAPPLICABLE. 476- 
 
 dohe to. the- vendors, who. would be fully paid for all they really 
 had to sell (a)„ .The real question is whether the deficiency is such 
 as to 'be< fairly capable of a money. valuation (6). It seems that 
 where it is in the vendor's power to make good the description of 
 the property, but not by way of money compensation, it may be 
 in his; option to perform the contract with the non-pecuniary com- 
 pensation applicable to the Circumstances or to treat it as rescinded.: 
 In a recent case a lot of building land (part of a larger estate in- 
 tended to be sold together) was sold under restrictive conditions- 
 as to building, and. in particular that no public house was to be 
 built; the purchaser assumed from the plau and particulars of sale, 
 and in the opinion of the Court with good reason, that the whole 
 of the adjoining property would be subject to like restrictions. 
 One small adjacent plot had in fact been reserved by the vendor 
 out of the estate to be sold, so that it would be free from restrictive 
 covenants ;. but this did not sufficiently appear from the plan. The 
 vendor sued for specific performance. It was held that he waB en- 
 titled at *his option to a decree for specific performance, on [476 
 the terms of entering into a restrictive covenant including the re- 
 served plot, or to have his bill dismissed (c). It is rather difficult 
 to see why the option should not have been with the purchaser. 
 The vendor had the means of performing what must be taken to 
 have really been his contract (for a man, can not be heard to say 
 that'the natural construction and meaning of the contract he pro- 
 poses, whether by a verbal description of the subject-matter, or by 
 words helped out by maps or other symbols, is not the meaning he 
 intended : accipiuntur foftius contra proferentem (d) : and it might 
 have been a not unsound or unjust conclusion to hold that he was. 
 simply bound. to perform it. >.; 
 
 . (a) Bailey d. Piper, 18 Eq: 683 ; [.Horrocks u. Digby, r 9 Ch. D. 180; Marshall 
 v. Caldwell, 41 Cal. 611 ; Erwin v. Myers, 46 Pa. St. 96.] Wheatley v. Slade, 
 4 Sim. 126, is practically overruled by this. Maw v. Topham, 19 Beav. 576, is- 
 distinguishable, as there the purchaser knew or ought to have known that a. 
 good title could not be made to the whole. 
 
 (6) See Dyer fc. Hargrave, 10 Ves. at p. 507 ; and on the distinction of the dif- 
 ferent classes of cases generally, per Amphlett, B., Phillips v. Miller, L. K. 10 • 
 C.P.427-8 V '' 
 
 (c) Bascomb v. Beckwith, 8 Eq. 100. The case comes very near Bloomer ■ &_ 
 Spittle, 13 Eq. 427, and others of that class, explained pp. 416, 456, above. 
 
 (d) 2 Sm. L. C. 525, [7th Am. ed. 470]; D. 2. 14.de p&otis, 39 D. 18. 1. do cont..- 
 «mt.21. '■.■' '' -'"•-•i*"' ■•-'■■;'• :K<J 
 
 541 
 
-477 CHAP. IX. MISREPRESENTATION AND, FRAUD., , 
 
 This third class of cases may be compared (though, not exactly) 
 to a sale of goods, subject to a condition or " warranty in the nature 
 of a condition," so that the sale is " to be null if the affirmation is 
 incorrect " (a). 
 
 A purchaser who in a case falling under either of the last two 
 :beads exercises his option to rescind the contract may sue in the 
 ■ Chancery Division to have it set aside, and recover back in the 
 same action any deposit and expenses already paid under the con- 
 tract (6). And it seems that there is an independent right to sue 
 in equity for the return of the deposit and expenses, at all. events 
 if there are any accompanying circumstances to afford ground for 
 equitable jurisdiction, such as securities having been given of which 
 the specific restitution is claimed (c). 
 
 To return to the more general question, it is the duty of the 
 vendor to give a fair and unambiguous description of his property 
 and title. If he does not intend to offer for sale an unqualified 
 estate, the qualifications should appear on the face of the par- 
 ticulars (rf). In Torrance v. Bolton (e) an estate was offered for 
 4?e] *sale as an immediate reversion in fee simple. At the auction 
 conditions of sale were read aloud from a manuscript, but no copy 
 given to the persons who attended the sale. One of these condi- 
 tions showed that the property was subject to three mortgages. 
 "The plaintiff in the suit had. bid and become the purchaser at the 
 sale, but without having, as be alleged, distinctly heard the, con- 
 ditions or understood thvjr effect. The Court held that the partic- 
 ulars were misleading ; that the mere reading out of the conditions 
 of sale was not enough to remove their effect and to make it clear 
 to the mind of the purchaser what he was really buying ; and that 
 he was entitled to have the contract rescinded and his deposit re- 
 turned. 
 
 A misleading description may be treated as a misrepresentation 
 -even if it is in terms accurate: for example, where property was 
 
 (a) Bannerman v. White, iO C. B. JSf. S/844; 31 L. J. O. P. 28. 
 
 (b) Eg., Stanton v. Tattersall, 1 Sm. & G. 529;' Torrance v. B61t6n;'8 Ch, 
 
 (c) Aberaman Ironworks Co. v. Wiekens, 4 Oh. 101, where the contract' hav- 
 ing been rescinded by consent before the suit was held not deprive the court 
 
 -of jurisdiction. ' "'• " ' "~ ',_•■■ 
 
 (<2) Hughes ?>. Jones, 3 D. ¥'. J. 307, 314.' .*.,.; .,,:, 
 
 (e) 8 Oh. 118; [and see Jones v. Eimmer, 14 Oh. D. 588.] : *° "^ ' ' ; ; ; " n ' 
 
 542 " .>'«.*,.-. 
 
.<. L SALES OF LAND : BUTT OF VENDOR. 478 
 
 described as "in the occupation of A." at a certain rental, and in 
 truth A. held not under the vendor, but under another person's ad- 
 verse .possession (a), or where immediate possession is material to 
 the purchaser, and the tenant holds under an unexpired le:ise for 
 years which is not disclosed (6). " There should be perfectly good 
 faith on «the part of the vendor in the representations which he 
 makes to the purchaser" (a). 
 
 All this proceeds on the supposition that the vendor's property 
 and title are best known to himself, as almost always is the case. 
 But the position of the parties may be reversed : a person who has 
 become the owner of a property he knows very little about may 
 :sell it to a person well acquainted with it, and in that case a ma- 
 terial misrepresentation by the purchaser makes the contract, and 
 even an executed conveyance pursuant to it, voidable at the vendor's 
 option (c). So it is where the purchaser has done acts unknown 
 to the vendor which alter their position and rights with reference 
 to the property : as where there is a coal mine under the land and 
 the purchaser has trespassed, upon it and raised coal without the 
 vendor's knowledge : for here the proposed purchase involves a 
 buying up of rights against the purchaser of which the owner is 
 not aware (d). 
 
 The House of Lords decided in Wilde v. Gibson (e) that the 
 #vendor's silence as to a right of way over the property, of [47S 
 the existence of which he was not shown to be aware, was no 
 ground for setting aside the contract. This reversed the decision 
 of Knight. Bruce, V.-C, (/) who held that the silence of the par- 
 ticulars taken together with the condition of the property (for the 
 way had been enclosed) amounted to an assertion that no right of 
 way existed. In any view it seems an extraordinary, not to say 
 -dangerous, doctrine to say that a vendor is not bound to know his 
 own title, so fa;: at least as with ordinary diligence he may, know 
 it : and the case is severely criticised by Lord St. Leonards (#). 
 The Irish case relied on by the Lords as a direct authority may be, 
 ■distinguished .on the ground that the representation there made by 
 
 .,(«) Laefalan v. Reynolds, Kay, 52. (b) Caballero v. Henty, 9 Oh. 447, 
 
 (c) Haygarth v. Wearing, 12 Bq. 320. 
 
 (d) Phillips v. Hoirifray, 6 Ch. 770, 779. 
 
 (e) 1 H. L. C. 605. 
 
 "'" (>)' S. C. noiii. Gibson v. D'Este, 2 Y. & C. 542. 
 (g) Sugd. Law of Property, 614, 637, «&c. ,., 
 
 ■ ,;■:■■,•■- -- 543 . 
 
479 CHAP.' IX. -MISREPRESENTATION: AND FRAUD. 
 
 the lessor that there was no right of way was made, not merely withs 
 an honest belief, but with a reasonable belief in its-truth (a). • . 
 , The decision: in, Wilde .v. Gibson was much influenced by tho- 
 purchaser's ease : baving been rested in the pleadings to a certain 
 extent upon charges of actual fraud, which however were aban- 
 doned in argument: the doctrine of constructive notice,. it-was said,. 
 could not be applied in support of an imputation of direct personal 
 fraud. Even so the result in modern practice would only be that 
 the plaintiff would have to pay the costs occasioned by the un- 
 founded charges; he would not lose any relief for which he 
 otherwise showed sufficient grounds (b). And on examining the 
 pleadings it is. difficult to find any imputation -sufficient to justify 
 the grave rebukes expressed in the judgments (c). Altogether the 
 case strongly illustrates the confusion and inconvenience which 
 may follow from the use of the word fraud with a latitude incon- 
 sistent with its ordinary and natural meaning. It was also said by 
 Jjord Campbell that a court of equity will not set aside an executed 
 conveyance on the ground of misrepresentation ,or concealment,. 
 479] but only for actual fraud QI) : but this *dictum has not been 
 followed. In . a late case where copyhold land had been sold as- 
 freehold, apparently in good faith, the saje was set aside after con- 
 veyance (e). Here, however, the seller had notice when he bought 
 the land himself that some, part of it at least was copyhold. On 
 the other hand there, may be a want of diligence on the pur- 
 chaser's part which, although not such as to deprive him of the 
 right of rescinding the contract before completion, would preclude- 
 him from having the sale set aside after conveyance (/). 
 
 (a) Indeed the court seems to have thought it was true, notwithstanding the- 
 adverse result of' an action : Legge v. Oroker, 1 Ball & B. 506 ; Sugd. op. eii. 657. 
 
 (&) Hilliard v. Eiffe, L. R. 7 H. L. 39 ; see next chapter. 
 
 (c) The hill in Gibson v. D'Este, which is to be found in the printed cases of 
 1848, has the words "carefully concealed" in one passage: " fraudulently ■ con- 
 cealed " in another may mean, of course, fraudulently in' a technical sense. 
 
 (rf) 1 H. L. C. 632. [That ''a purchaser can not, in the absence of fraud',, 
 obtain compensation after conveyance for a misrepresentation, even though 
 such "misrepresentation related to the subject-matter of the- conveyance,'' see 
 following, and relying upon Legge v. Crocker, supra: Manson v. Thacker, 7 
 Ch. D. 620; Brett v. Bevridge, 5 C. P. D. 376; contra, In re Turner and Skel- 
 ton, 13 Ch. D. 130.] 
 
 (e) Hart v. Swaine, 7 Ch. D. 42; also in Haygarth v. "Wearing, 12 Eq. 320, 
 an executed conveyance was set aside on simple misrepresentation. 
 
 (/) McCulloch v. Gregory, 1K.& J. 286, where a will was misstated~in the; 
 544 
 
'" "FAMILY SETTLEMENTS. 480' 
 
 ' As a general result of the authorities there seems to be no do'ubft 
 that on sales of real property it is the duty of the party acquainted 
 ■with the property to give substantially correct information, at all 
 events to the extent of his own actual knowledge, of all facts ma- 
 terial to the description or title of the estate offered for sale. 
 
 The rule seems not applicable as between lessor and lessee-, 
 where the letting is for an occupation by the lessee himself, and so 
 far as concerns any physical fact which can be discovered by in- 
 spection : for in ordinary circumstances the landlord is entitled to 
 assume that the tenant will go and look at the premises for him- 
 self, and therefore is not bound to tell him if they are in bad re- 
 pair or even ruinous (a). 
 
 B. Family Settlements. 
 
 In the negotiations for family settlements and compromises it is 
 the duty of the parties and their professional agents not only to 
 abstain from misrepresentations, but to communicate to the other 
 parties all material facts within their knowledge affecting the> 
 rights to be dealt with. The omission to make such communica- 
 tion, even without any wrong motive, is a ground for setting aside? 
 the transaction. ''Full and complete communication of all mate- 
 rial circumstances is what the Court *must insist on " {b). [480' 
 "Without full disclosure honest intention is not sufficient," and it 
 makes no difference if the non-disclosure is due to an honest but 
 mistaken opinion as to the materiality or accuracy of the informa- 
 tion withheld (c). The operation of this rule is not affected by 
 the leaning of equity, as it is called, towards supporting re-settle- 
 abstract so as to conceal a defect of title, but the purchaser omitted to examine 
 the originals. 
 
 (a) Keates v. Earl Cadogan, 10 C. B. 591 ; 20 L. J. C. P. 76. [But a lessor 
 is liable for damages resulting from a fact not discoverable by inspection, as 
 that the premises are infected by a contagious disease, if known to him and not 
 disclosed to the lessee: Minor v. Sharon, 112 Mass. 477; Cesar v. Kountz, 6a 
 N. Y. 229.] The general rule does apply as to matters of title: Mostyn v. West 
 Mostyn Coal, &c, Co., 1 C. P. D. 145. 
 
 (b) Gordon v. Gordon, 3 Sw. 400, 473. 
 
 (c) lb. 477. How far does this go ? . It can hardly be a duty to communi- 
 cate mere gossip on the chance, of there being something in it. Probably the 
 test is (as in the case of marine insurance, p. 466, above) whether the judgment 
 of a reasonable man would be affected. 
 
 , 35 ■•*, 545 
 
481 CHAP. IX. MISREPBESENTATION AND FRAUD. 
 
 merits and similar arrangements for the sake of peace and quiet- 
 ness in families (a). 
 
 F. Contracts to take tihares in Companies and Contracts of Pro- 
 moters. 
 
 " The public, who are invited by a prospectus to join in any new 
 adventure, ought to have the same opportunity of judging of every 
 •thing which has a material bearing on its true character as the 
 promoters themselves possess " (p) : and those who issue a pros- 
 pectus inviting people to take shares on the faith of the representa- 
 tions therein contained are bound " not only to abstain from stat- 
 ing as a fact that wbich is not so. but to omit no one fact within 
 their knowledge, the existence of which might in any degree affect 
 the nature or extent or quality of the privileges and advantages 
 which the prospectus holds out as an inducement to take shares" 
 (c). Therefore if untrue or misleading representations are made 
 as to the character and value of the property to be acquired by a 
 company for the purposes of its operations (rl), the privileges and 
 position secured to it, the amount of capital (e), or the amount of 
 shares already subscribed for (/), a person who has agreed to take 
 shares on the faith of such representations, and afterwards dis- 
 covers the truth, is entitled to rescind the contract and repudiate 
 the shares, if he does so within a reasonable time and before a 
 481] winding-up has given the *company's creditors an inde- 
 feasible right to look to him as a contributory (g). For full infor- 
 mation on this subject the reader is referred to Mr. Justice Lind- 
 ley's treatise (A). 
 
 (re) lb. ; Fane v. Fane, 20 Eq. 698. 
 
 (A) Lord Chelmsford in Central By. Co. of Venezuela v. Kisch, L. R. 2 H. L. 
 «9, 113. 
 
 (c) Kindersley, V.-C, New Brunswick, &c, Co. v. Muggeridge, 1 Dr. & Sm. 
 §63, 381, adapted by Lord Chelmsford, I. c. 
 
 (d) Reese River Silver Mining Co. v. Smith, L. R. 4 H. L. 64, affg. s. c. nom. 
 .Smith's ca., 2 Ch. 604. 
 
 (e) Central Ry. Co. of Venezuela v. Kisdh, supra. 
 
 (/) "Wright's ca., 7 Ch. 55; cp. Moore & De la Torre's ca., 18 Eq. 661. 
 
 (g) [Upton v. Engelhart, 3 Dillon, 496; Crump v. U. S. Mining Co., 7 Gratt. 
 352; Water Valley Mfg. Co. v. Seaman. 53 Miss. 655; Waldo v. Railroad Co., 
 14 Wis. 575 ; States. Jefferson Turnp. Co., 3 Humph. 305; Upton ■». Tribil- 
 ■coek, 91 U. S. 45; Vreeland v. New Jersey Stone Co., 29 N.'j. Eq. 188.] 
 
 (A) Lindley on Partnership, 2. 982, 1459; [and see this subject discussed by 
 Seymour D. Thompson, Esq., 1 Am. Law Rev. N. S. 177 sqq.j 
 546 
 
CONTRACTS OF PROMOTERS. 48'Z 
 
 There is likewise a fiduciary relation between a promoter and 
 "the company in its corporate capacity, which imposes on the pro- 
 moter the duty of full and fair disclosure in any transaction with 
 the company, or even with persons provisionally representing the 
 inchoate company before it is actually formed (a). 
 
 The Companies Act 1867, s. 38, makes it the duty of promoters 
 of a company to disclose in the prospectus any previous contract 
 entered into by the company or the promoters ; in default of which 
 the prospectus is deemed "fraudulent on the part of the promoters, 
 ■directors, and officers of the company knowingly issuing the same" 
 as regards any one taking shares on the faith of the prospectus 
 and without notice of the contract. This creates no duty on the 
 part of any one who was not a promoter at the date of the con- 
 tract (b~), nor towards any one but shareholders (c) : and it seems 
 the right it gives the shareholder is to bring an action of deceit 
 againut the delinquent personally, and not to be released from his 
 -eontract (b). The contracts mentioned in this very loosely drawn 
 enactment include not only contracts binding or intended to bind 
 the company itself, but all contracts involving dealings with the 
 -company's shares or assets which, if known to a prudent man, 
 would be material to determine his judgment as to taking 
 -shares (d). 
 
 In the case of the contract to marry there is no special duty of 
 •disclosure, except so far as the woman's chastity is an implied con- 
 dition. The non-disclosure of a previous and subsisting engage- 
 ment to another person (e), or of the party's own previous insan- 
 ity (/), is no answer to an action on the promise. If promises to 
 many are to give a right of action, one would think *the [482 
 
 (a) New Sombrero Phosphate Co. v. Erlanger, 5 Ch. £>. 73 ; per James, L. 
 J., at p. 118; [seeS. C. 3 App. Ca. 1218, 1229-1230]; Bagnall v. Charlton, 6 
 Ch. D. 371; [McElbenny v. Hubert Oil Co., 61 Pa. St. 188; Simons v. Vulcan 
 Oil Co., 61 Pa. St. 202 ; Dinsmore Oil Co. v. Dinsmore, 64 Pa. St. 43 ; Emma 
 .Silver Mining Co. v. Grant, 11 Ch. D. 918, 936.] 
 
 (J) Gover's ca., 20 Eq. 114 ; 1 Ch. D. 182. 
 
 (c) Cornell v. Hay, L. P.. 8 C. P. 328. 
 
 (d) Twycross v. Grant (C. A.), 2 C. P. D. 469. The Court of Appeal was 
 equally divided. Further legislation on the subject is expected. 
 
 (e) Beachey v. Brown, E. B & E. 796; 29 L. J. Q. B. 105; [Boper v. Clay, 
 18 Mo. 383.] 
 
 (/) Baker v. Cartwright, 10 C. B. N. S. 124. 
 
 547 
 
482 CHAP. IX. MISREPRESENTATION AND FRAUD. 
 
 contract should be treated as one requiring the utmost good faith r 
 but such are the decisions. 
 
 Marriage itself is not avoided even by actual fraud (a), but the- 
 reasons for this arc obviously of a different kind : nor is a mar- 
 riage settlement rendered voidable by the wife's non-disclosure of 
 previous misconduct (b). 
 
 It now remains to see how the authorities stand as establishing 
 or tending to establish a general rule for the treatment in equity 
 of contracts entered into by one party in consequence of represen- 
 tations made by the other which were not true in fact, but not 
 known to be untrue by the person making them. 
 
 The. cases at common law have established that a false represen- 
 tation may be a substantive ground of action for damages though 
 it is not shown that the person making the statement knew it to» 
 be false. It is enough to show that he made it with a view to se- 
 cure some benefit to himself, or to deceive a third person, and with- 
 out believing it to be true (c). On the other hand there is no ac- 
 tionable wrong in a representation which though untrue in fact is- 
 believed to be true by the person making it (d). 
 
 (a) Swift v. Kelly, 3 Knapp, P. C. 257, 293; [infra, p. 493.] 
 
 (b) Evans v. Carrington, 2 D. J?. J. 481. It is there said however that non- 
 disclosure of adultery would be enough to avoid a separation deed. 
 
 (e) Taylor v. Ashton, 11 M. & W. 401 ; Evans v. Edmonds, 13 C. B. 777. 
 See Benjamin on Sale, 361-369 [2d Am. ed. 417-426], where the cases are fully 
 discussed. [Howard v. Gould, 28 Vt. 523. " If a person states, as of his own. 
 knowledge, material facts, which are susceptible of knowledge, to one who re- 
 lies and acts upon them as true, it is no defense, if the representations are 
 false, to an action for deceit, that the person making them believed them to be- 
 true;" Litchfield v. Hutchinson, 117 Mass. 195; Savage v. Stevens, 126 Mass- 
 207; Stone v. Denny, 4 Met. 151; Cabot v. Christie, 42 Vt. 121; Bennett v. 
 Judson, 21 N. T. 238; Harnmatt -a. Emerson, 27 Me. 308, 326; cp. Tucker v.. 
 White, 125 Mass. 344. 
 
 "A false representation, recklessly made, without any knowledge, informal 
 tion, or grounds of belief, would not differ in its legal effect from an assertion 
 known to be false; " Beach v. Bemis,"107 Mass. 498, 499; Beebe v. Knapp, 28 
 lU icli. 53 ; Stone v. Covell, 29 Mich. 359 ; Eoard v. McComb, 12 Bush, 723 ; 
 Munroe o. Pritchett, 16 Ala. 785, 790; Einstein v. Marshall, 58 Ala. 153; In- 
 surance Co. v. Reed, 33 O. S. 283, 294.] 
 
 (d) Taylor v. Ashton, supra; Collins v. Evans, 5 Q. B. 820; Ormrod v. Huth, 
 14 M. & "W. 651. See notes to Chandelor v. Lopus, 1 Stn. L. C. ; Higgins 
 v. Samels, 2 J. & H. 460, 466 ; [King v. Eagle Mills, 10 Allen, 548 ; Stone D.- 
 Denny, 4 Met. 151 ; Taylor v. Leith, 26 O. S. 428 ; Bank v. Hamilton, 2 Ind. 457,. 
 464 ; Faribault v. Sater, 13 Minn. 223, 232 ; Mahurin v. Harding, 28 N. H. 128 r 
 548 
 
MISREPRESENTATION: QUESTION OF KNOWLEDGE. 433 
 
 Silence is equivalent to misrepresentation for this purpose if " the 
 -withholding of that which is not stated makes that which is stated 
 -.absolutely false," but not otherwise (a). 
 
 The state of things which gives the higher right to bring an 
 action in the nature of the old common law action of deceit (6) 
 *must. obviously give the lesser right of simply avoiding the [483 
 contract. But the two rights are not therefore co-extensive. One 
 ■can see no reason on principle for assuming the converse proposi- 
 tion to be true, namely that a contract can not be rescinded for 
 misrepresentation unless an action of deceit could be maintained. 
 It is one thing to say that a man's conduct in inducing another to 
 •contract with him does not amount to a substantive wrong, and 
 another thing to say that he is entitled to enforce the contract. 
 There is no doubt, however, that it has been at least the strong 
 tendency of the common law to ignore the distinction. In courts 
 -of equity we find on the other band a sufficiently marked though 
 not wholly uniform disposition to recognize it (c). The actual decis- 
 ions are for the most part on questions falling under one or other 
 of the special heads we have already gone through, and this in- 
 
 132 ; Da Lee v. Blackburn, 11 Kan. 190; Lord v. Goddard, 13 How. 198]. If a 
 man affects to contract as an agent authorized by a principal, having in fact no 
 .authority, it has been said that he may be sued on the false statement as a 
 wrong," even though he does not know it to be false, but believes without suf- 
 ficient grounds that the statement will ultimately turn out to be correct; " per 
 Cur. Smout v. Ilbery, 10 M. & W. 1, 9; [Jefts v. York, 10 Cush. 392, 395; 
 and see May v. Telegraph Co., 112 Mass. 90] ; see, however, 1 Sm. L. 0. 178 
 [7th Am. ed. 302; see supra, p. 233, note (d).] 
 
 (a) Peek v. Gurney, L. B. H. L. 377, 390, 403 ; [and see Ward v. Hobbs, 3 
 Q. B. Div. 150, affd. 4 App. Gas. 13. 
 
 Some of the American cases go further than the .English in holding silence 
 and conduct equivalent to misrepresentation. Paddock v. Strobridge, 29 Vt. 
 470, 480-481 ; Hanson v. Edgerly, 29 N. H. 343, 358 ; French v. Vining, 102 
 Mass. 132; Maynard v. Maynard, 49 Vt. 297 ; Hadley v. Clinton Imp't'g. Co., 
 13 O. S. 502; Cecil v. Spurger, 32 Mo. 462; Jeffrey v. Bigelow, 13 Wend. 518; 
 • cp. infra, 491-2.] 
 
 (b) The right is equitable as well as legal. Suits analogous to the action of 
 ■deceit occurred in equity practice before the Judicature Acts, as in Slim v. 
 
 Croucher, 1 D. F. J. 518; and see Hill v. Lane, 11 Eq. 215, 220; Peek v. Gur- 
 ney, supra; [Bacon v. Bronton, 7 Johns. Ch. 194, 201.] 
 
 (c) [Hammond v Pennock, 61 N. Y. 145, 152; Wilcox v. Iowa W. Univer- 
 sity, 32 la. 367, 373-4; Taylor v. Leith, 26 O. S. 428, 434; Brooks v. Hamilton, 
 15 Minn. 26; Da Lee v. Blackburn, 11 Kan. 190; Lanier v. Hill, 25 Ala. 554, 
 
 -558.] 
 
 549 
 
CHAP. IX. JjHSBEP&ESENTAITON AND FRAUD. 
 
 cirease's the difficulty of drawing general conclusions. But tbe- 
 presence of considerations of a more general kind is believed on 
 the whole to justify the statement of the rule of equity given above 
 (p. 464).. 
 
 Lord Brougham laid down in Attwood v. Small (a), without any 
 qualification or exception (beyond calling attention to the distinc- 
 tion between a simple representation and a warranty) — that the 
 following things must all concur if a contract is to be set aside on 
 the ground of false representation : 
 
 A representation contrary to the fact. 
 
 Knowledge of the party making it that it is contrary to the fact.. 
 
 This representation being the cause of the other party's contract- 
 ing (dolus dans locum contractui). 
 
 But it is certain, as we have just seen, that except for the pur- 
 pose of establishing distinct and specific eharges of fraud, the sec- 
 ond of these conditions is subject to considerable exceptions in 
 special, but large and important, classes of cases. 
 
 It is also sufficiently certain that mere ignorance as to the truth 
 or falsehood of a material assertion which turns out to be untrue 
 must be treated as equivalent to knowledge of its untruth. "If 
 484] persons take upon themselves to make assertions as *to 
 which they are ignorant whether they are true or untrue, they 
 must in a civil point of view be held as responsible as if they had 
 asserted that which they knew to be untrue " (b). In other words, 
 willful ignorance may have the same consequences as fraud (c). 
 So' may ignorance which, though not willful, is negligent : as when 
 positive assertions of fact are made as if founded on the party's 
 own knowledge, whereas in truth they are merely adopted on trust 
 from some other person. The proper course in such a case is to 
 refer distinctly to the authority relied upon ( d). 
 
 It is no less established that a person who makes a wrong state- 
 to) 6 01. & F. 232, 444. 
 
 (b) Per Lord Cairns, Eeese Eiver Silver Mining Co. v. Smith, L. E. 4 H. L.. 
 79; Eawlins v. Wickham, 3 De G. & J. 304, 316; [Eead v. Walker, 18 Ala. 323, 
 333; Thomas v. McCann, 4 B. Mon, 601 ; Dav,is v. Heard, 44 Miss. 50; Frenzel 
 v. Miller, 37 Ind. 1, 17; Smith v. Eiehards, 13 Pet. 26, 36; Doggett v. Emerson,- 
 3 Story, 700, 733-4 ; Miner v. Medbury, 6 "Wis. 295 ; Lewis v. McLemore, 10 • 
 Yerg. 206; Henderson v. Eailroad Co., 17 Tex. 560; supra, p. 482, note (c).] 
 
 (c) Owen v. Homan, 4 H. L. C. at p. 1035. 
 
 (d) Eawlins v. Wickham, 3 De G..& J. at p. 313; Smith's ca., 2 Ch. at p. 611j_ 
 [Fisher v. Mellen, 103 Mass. 503; but ep. Lord v. Goddard, 13 How. 198.] 
 
 550 
 
MISREPRESENTATION: QUESTION OF KNOWLEDGE. 485 
 
 went as to a fact which was once actually within his own knowl- 
 edge, and which it is his business to remember, can not excuse him- 
 self by alleging that he had forgotten it at the time of making the< 
 statement (a). 
 
 On the general question Lord Hatherley, when Vice-Chancellor,, 
 laid down the following principles: 
 
 "First. Every man must be held responsible for the conse- 
 quences of a false representation made by him to another, upon 
 which that other acts, and so acting is injured or damnified. 
 
 Secondly. Every man must be held responsible for the conse- 
 quences of a false representation made by him to another, upon 
 which a third person acts, and so acting is injured or damnified — 
 provided it appear that such false representation was made with 
 the intent that it should be acted upon by such third person in the 
 manner that occasions the injury or loss (&). 
 
 Thirdly. The injury must be the immediate and not the remote^ 
 consequence of the representation thus made" (c). 
 
 But these rules, it will be observed, are stated chiefly, and: 
 the Becond of them exclusively, with reference to liability ex 
 delicto: and the suit in which the judgment was given was in 
 *fact founded on a liability of that nature rather than a sim- [485 
 pie right of rescission. It seems to be assumed that the repre- 
 sentation is made with knowledge of its untruth. 
 
 In Jennings v. Bronghton (d), a suit to set aside a purchase of 
 shares in a mine, the L. J. Knight Bruce said that (apart from an- 
 other point to which we shall come afterwards) the questions were 
 as follows: 1. In the representations made by the defendants was- 
 there any untrue assertion material in its nature, that is, " which, 
 taken as true, added substantially to the value or promise of the 
 mine, and was not evidently conjectural merely?" 2. If so, was 
 it made without a belief in its truth by the person making it?' 
 3. If made with such belief, was the belief entertained without fair 
 or reasonable ground? It is submitted that this, notwithstanding 
 the special nature of the case, was intended and is to be accepted 
 as an accurate statement of the general law. More recently it has 
 been said that "when a representation in a matter of business is 
 
 (a) Burrowes v. Lock, 10'V©s. r 490; Slim ». Oroucher, 1 D. F. J. 518, 525 ; 
 [Bacon v. Bronson, 7 .Johns. Ch. 194, 201.] 
 (6) See .Peek v. Gurney, L. E. 6 H. L. 396, 412. 
 (c) Barry v. Oroskey, 2 J. & H. 122. (d) 5 D. M. G. 126, 130. 
 
 o51 
 
486 CHAP. IX. MISREPRESENTATION AND FRAUD. ■ 
 
 made- by one man to another calculated to induce him to adapt his 
 conduct to it," knowledge of the .representation being untrue is not 
 material (a) : but it was held in the particular case that there was 
 in fact no misrepresentation. ., . 
 
 The cases on misrepresentation in family settlements, especially 
 the lute one of Fane v. fane (6)* seem also to involve the general 
 principle or head of equity, that a material statement of that which 
 is untrue, though innocently made, is ground for avoiding a con- 
 tract: but here, as we have already seen, there is held to be a special 
 positive duty of communication. 
 
 On the whole we have thought it best to state the rule in a gen- 
 eral form (p. 464 above), though it must be admitted that this goes 
 beyond the letter of the authorities in their present state. 
 
 The subject was recently discussed in the House of Lords, but 
 in an indecisive manner, in Western Bank of Scotland v. Addie (c), 
 486] where Loral Chelmsford Said in effect that a man is *not 
 liable for an untrue statement made as " the result of a bona fide 
 belief," but that this means a belief held on some reasonable 
 grounds. Lord Cranworth seems to have thought, on the contrary, 
 that the absence. of reasonable grounds is material only as evidence 
 that there was no real belief. But the authority of the dicta in this 
 case is much diminished by the positive dissent since expressed 
 (though not on this point, but on that of the liability of a corpor- 
 ation ex delicto for the fraud of its agent) by the Judicial Com- 
 mittee (d). 
 
 There remains another general question not. wholly free from 
 doubt, namely, whether any difference is made by the party misled 
 having within his reach means of knowledge by which, if he bad 
 ■used them, he might have ascertained the truth. > 
 
 In the case of active misrepresentation it is no answer in pro- 
 ceedings either for damages or for setting aside the contract to say 
 that the party complaining of the misrepresentation had the means 
 of making inquiries. "In the case of Dobell v. Stevens (e) 
 . . which was an action for deceit in falsely representing the 
 amount of the business done in a public-house, the purchaser was 
 
 (a) Malins, V.-C, Leather v. Simpson, 11 Eq. 398, 406. 
 
 (6) 20 Eq. 698. (e) L. K. 1 Sc. & D. 145, 162, 168. 
 
 (d) See Mackay v. Commercial Bank of New Brunswick, L. R. 5 P. 0. 394, 
 followed in Swire v. Francis, 3 App: Oa. 106. 
 
 (e) 3 B. &C. 623. ■ .„;] ,(?,j . 
 
 532 
 
■ «EFFECT OF NEGLIGENCE IN PARTY MISLED. 487 
 
 foeld to be entitled to recover' damages, although the books Were in 
 the house, and he might- have had access to them'if he had thought 
 proper " (a). The like is held in equity; It was said of a purchaser 
 to whom the state of the property he bought was misrepresented : — 
 "Admitting that he might by minute examination make that dis- 
 covery, he was not driven to that examination, the other party 
 having taken upon him to make a representation. ■. . The pur- 
 chaser is induced to make a less accurate examination by the 
 representation, which he had a right to believe " (b). 
 
 The principle is that "No man can complain that another has 
 too implicitly relied on the truth of what he lias himself stated " (c). 
 
 If it is shown, indeed, that the person who complains of having 
 been misled not only had the means of information within his 
 *reaeh, but actually used them, then he is taken to have acted [487 
 not on the statement of the other party but on his own judgment, 
 .and he can not claim relief (d): " The Court must be careful that 
 in its anxiety to' correct frauds it does not enable persons who have 
 joined with others in speculations to convert their speculations 
 into certainties at the expense of those with whom they have- 
 joined " (e). 
 
 In the case of Attwood v. Small (/) in the House of Lords there 
 .are various dicta on this subject not very consistent with one an- 
 -other. It is in one place (<?) said that a party would not be re- 
 lieved who had the means of ascertaining the truth " with ordi- 
 nary prudence : " on the other hand Lord Lyndhurst fully ap- 
 proved of Do bell' v. Stevens (A) ; and it can hardly be said that 
 in that case it would have been any very extraordinary act of pru- 
 dence oh the part of the purchaser to go into the house and 
 
 Ja) Per Lord Chelmsford, L. E. 2 H. L. 121. >' 
 
 (b) Dyer v. Hargrave, 10 Ves. at p. 509; [Oswald v. McGehee, 28 Miss. 340, 
 353-4; Mason v. Crosby, 1 Woodb. & M, 342, 353.] 
 
 (c) Keynell v. Sprye, 1 D. M. G. at p. 710; Price v. Macaulay, 2 D. M. G. 
 -339, 34a. 
 
 (d) [Phipps <«. Buckman, 30 Pa. St. 401; Hagee v. Grossman, 31 Ind. 223; 
 Hough v. Richardson, 3 Story, 659 ; Halls v. Thompson, 1 S. &. M. 443, 481-2; 
 Tuck v. Downing, 76 111. 71 ; Slaughter's Adm'r. v. Gersori, 13 Wall. 379; and 
 see infra, 499, note (6).] 
 
 (e) Jennings v. Broughton, 5 D. M. G. 126, 140; Dyer v. Hargrave, 10 Ves, 
 -605. '•■-,'. ' ,;,"'.,-.' 
 
 (/) 6 C1..&F. 232. (jg) Per Earl of Devon, at p. 340. ,•.■ 
 
 {h) At p. 395 (see last p.) '' ■■<'< '£>•• ' -.<-. 
 
 553 
 
CftAP, IX, ]»J&KffilfK > ,S;S$JXTAXION A,$T>. FCVUD. 
 
 loojk, at the, books far himself. However the general tendency - 
 of what was said in, Attwood, v. Small is, to show that nothing- 
 short of actual inquiries, from which it can be inferred il at the 
 party acted on his. own judgment will preclude him from relief- 
 And Lord Brougham suggested, that a case might even be possible 
 in which the false representations of a. seller and the actual in- 
 quiries of a buyer should be so inextricably mixed up that th.u 
 Court would not refuse to interfere (a). In the principal case the 
 parties who sought to impeach a sale of mining property to them 
 bad (according to the view of the facts taken by the majority of 
 the Lords) not only made inquiries by themselves and their agents- 
 to test the vendor's statements, but had continued in possession 
 and exercised acts of ownership after all the facts were within 
 their knowledge. There was, therefore, no positive decision on the- 
 point now under discussion. 
 
 But the principle has in a more recent case (6) been positively 
 affirmed by Lord Chelmsford. The suit was instituted by a share- 
 holder in a railway company, to be relieved from his contract on- 
 the ground of misrepresentations contained in the prospectus. 
 Here it was contended that the prospectus referred the intending 
 488] *sbareholder to other documents, and offered means or 
 further information: besides, the memorandum and articles of as- 
 sociation (and of these, at all events, he was bound to : take notice)' 
 sufficiently corrected the errors and omissions of the prospectus. 
 But the objection is thus answered : 
 
 " When once it is established that there has been any fraudulent mis- 
 representation or willful concealment by which a person has been induced 
 to enter into a contract, it is no answer to his claim to be relieved from 
 it to tell him that he might have known the truth by proper inquiry. 
 He has a right to retort upon his objector, 'You at least, who have- 
 stated what is untrue, or have concealed the truth for the purpose of 
 drawing me into a contract, can not accuse me of want of caution be- 
 cause I relied implicitly upon your fairness and honesty' " (c). 
 
 (o) At p. 448. 
 
 (b) Central By. Co. of Venezuela v. Kisch, L. B. 2 H. L. 99, 120. 
 
 (el [See David v. Park, 103 Mass. 501; Mead v. Bunn, 32 N. Y. 275, 280; 
 Buberts v. Plaisted, 63 Me. 335; Upton i>. Englehart, 3 Dill. 496, 501; Eaton v- 
 "W'innie,20 Mich. 156; Bisch v. Von Lilientbal, 34 Wis. 250; Matlock v. Todd, 
 19' Ind. 130 ; Byere v, Cnapin, 28 O. S. 300, 305. 
 
 That the rule does not apply in favor of a subscriber to the stock of a cov- 
 poratijyjji, resisting payment of an assessment on the ground of false representa- 
 tions as to matters controlled by the charter; see Parker «. Thomas, 19 Ind- 
 5k5A 
 
FRAUDULENT REPRESENTATION OR CONCEALMENT. 4S9' 
 
 This' doctrine appears, on the same authority, not to apply to- 
 -the case of mere non-disclosure, without fraudulent intention, of a 
 fact which ought to have been disclosed. 
 
 " When the fact is not misrepresented but concealed [or rather 
 not communicated] (a) and there is nothing done to induce the- 
 other party not to avail himself of the means of knowledge within 
 his reach, if he neglects to do so he may have no right to complain, 
 because his ignorance of the fact is attributable to his own negli- 
 gence " (b). 
 
 It appears also not to apply to a mere assertion of title by a 
 vendor of land (c). 
 
 In a case before Lord Hatherley when V.-C. the double question 
 arose of the one party's knowledge that his statement was untrue, 
 and of the other's means of learning the truth. The suit was- 
 for specific performance of an agreement to take a lease of a lime- 
 stone quarry. The plaintiff made a distinct representation as to 
 the quality of the limestone, which was in fact untrue: he did 
 not believe it to be false, but he had taken no pains to ascer- 
 tain, as he might easily have done, whether it was true or not. 
 But then the defendant had not relied exclusively upon this- 
 stutement, for he went to look at the stone; still he was not a 
 *lime burner by trade, and could not be supposed to have [489 
 trusted merely to what he saw, being in fact not competent to judge- 
 of the quality of limestone. The result was that the Court refused 
 specific performance, declining to decide whether the contract wa& 
 otherwise valid or not (d). 
 
 Part 2. — Fraud. 
 
 Fraud generally includes misrepresentation. Its specific mark 
 is the presence of a dishonest intention on the part of him by 
 
 213, 219; Wight v. Railroad Co., 16 B. Mon. 4; Eailroad Co. „. Anderson, 51 
 Miss. 829.] 
 
 (a) SeeL. R. 2 H. L.339. 
 
 (J) New Brunswick, &c, Co. v. Conybeare, 9 H. L. C. 711, 742. 
 
 (c) Hume. v. Poeock, 1 Ch. 379, 385, where however the real contract was to- 
 buy up a particular claim of title, whatever it might be worth ; [Conwell v. 
 Clifford, 45 Ind. 392; but see Watson v. Atwood, 25 Conn. 313; Parham v.. 
 Randolph, 4 How. (Miss.) 435, 451 ; Kiefer v. Rogers, 19 Minn. 32; Claggett u- 
 Grail. 1,2 £an, 893 ; Young v. Hopkins, 6 T. B. Mon. 18 ; Bailey v. Smock, 61 
 Ho. 213.] 
 
 (d) Higgins v. Samels, 2J.&H. 460, 468, 469. 
 
 555 
 
490 CHAP. IX. MISREPRESENTATION AND FRAUD. 
 
 whom the representation is made. In this case we have a mistake 
 -of one party caused by a representation of the other, which rep- 
 resentation is made by deliberate words or conduct with the inten-. 
 tion of thereby procuring consent to the contract, and without a 
 belief in its truth. 
 
 There are some instances of fraud, however, in which one can 
 hardly say there is a misrepresentation except by a forced use of 
 language. It is fraudulent to enter into, a contract with the design 
 of using it as an instrument of wrong or deceit against the other 
 party. Thus a separation deed is fraudulent if the wife's real ob- 
 ject in consenting or procuring the husband's consent to it is to be 
 the better able to renew a former illicit intercourse which has been 
 concealed from him. "None shall be permitted to take advantage 
 -of a deed which they have fraudulently induced another to execute, 
 that they may commit an injury against morality to the injury and 
 loss of the party by whom the deed is executed " (a). So it is fraud 
 to obtain a contract for the transfer of property or possession by a 
 representation that the property will be used for some lawful pur- 
 pose, when the real intention is to use it for an unlawful purpose (hi). 
 It has been said that it is not fraud to make a contract without any 
 intention of performing it, because peradventnre the party may 
 think better of it and perform it after all : but this was in a case 
 where the question arose, wholly on the form of the pleadings, and 
 490] in a highly technical and now happily impossible ^manner (c). 
 And both before and since it has repeatedly been considered a 
 fraud in law to buy goods with the intention of not paying for 
 them (<£). Here it is obvious that the party would not enter into 
 
 (a) Evans „. Carrington, 2 D. E. J. 481, 501; cp. Evans v. Edmonds, 13 C. 
 B. 777, where, however, express representation was averred. 
 
 (4) Eeret v. Hill, 15 C. B. 207; 23 L. J. 0. P. 185, concedes this, deciding 
 only that possession actually given under the contract can not be treated as a 
 mere trespass by the party defrauded. 
 
 (c) Hemingway v. Hamilton, 4 M. & W". 115. 
 
 (u). Ferguson v. Carrington, 9 B. & C. 59 ; Load v. Green, 15 M. & W. 216; 
 15 L. J. Ex. 113; White v. Garden, 10 C. B. 919, 923; 20 L. J. C. P. 166; 
 Clough v. L. & K. W. By. Co., L. R. 7 Ex. 26; Ex parte Whittaker, 10 Ch. 
 -446, 449, per Mellish. L. J.; Donaldson v. Farwell, 93 U. S. 631; [Stewart v. 
 Emerson, 52 N. H. 301 ; Talcott v. Henderson, 31 O. S. 162; Dow «. Sanborn, 3 
 jUlen, 181 ; Jordan v. Osgood, 109 Mass. 457; Mulliken v. Millar, 12 B.I. 296; 
 Eox v. "Webster, 46 Mo. 181; Powell v. Bradlee, 9 G. & J. 220; Thompson, v. 
 .Kose, 16 Conn. 71 ; Johnson u. Monnell, 2 Keyes, 655; Hennequin v. Nay lor, 
 556 ■ < ,-;• 
 
FRAUDULENT REPRESENTATION OR CONCEALMENT. 491 
 
 the contract if he knew of the fraudulent intention : but the fraud is- 
 not so much in the concealment as in the character of the intention 
 itself. It would be ridiculous to speak of a duty of disclosure in 
 such cases. Still there is ignorance on the one hand and wrongful 
 contrivance on the other, such as to bring these cases within the- 
 more general description of fraud given in Oh. VIII. p. 382 above. 
 
 The party defrauded is entitled, and was formerly entitled at 
 law as well as in equity, to rescind the contract. "Fraud in all 
 courts and at all stages of the transaction has been held to vitiate 
 all to which it attaches " (a). It does not matter whether the rep- 
 resentation is made by express words or by conduct, nor whether 
 it consists in the positive assertion or suggestion of that which is 
 false, or in the active concealment of something material to be 
 known to the other party for the purpose of deciding whether he 
 shall enter into the contract. These elementary rules are so com- 
 pletely established and so completely assumed to be established in 
 all decisions and discussions on the subject that it seems almost idle 
 to cite any specific authorities for them: but we may give in a 
 general way a few instances of the kind of representations which- 
 are held fraudulent. 
 
 There may be a false statement of specific facts : this seldom oc- 
 curs in a perfectly simple form. Oanham v. Barry (£>) is a good 
 example. There the contract was for the sale of a leasehold. The 
 vendor was under covenant with his lessor not to assign without 
 license, and had ascertained that such license would not be refused 
 if he could find an eligible tenant. The agreement was made for 
 the purpose of one M. becoming the *occupier, and the pur- [491 
 chaser and M. represented to the vendor that M. was a respectable- 
 person and could give satisfactory references to the landlords, which 
 was contrary to the fact. This was held to be a fraudulent mis- 
 representation of a material fact such as to avoid the contract. A. 
 
 24 N, Y. 139; Devoe v. Brandt, 53 N. Y 462; Wright v. Brown, 67 N". Y. 1? 
 Shipman v. Seymour, 40 Mich. 274, 283. 
 
 But the mere non-disclosure by a purchaser of his insolvency does not alone 
 amount to fraui : Talcott v. Henderson, 31 O. S. 162; Nichols v. Pinner, 18 N. 
 Y. 295; Hennequin v. Naylor, 24 N. Y. 139; Biggs v. Barry, 2 Curtis, 259; 
 Garbutt v. Bank, 22 Wis. 384 ; Rodman v. Thalheimer, 75 Pa. St. 232 ; Bidault 
 v. Wales, 19 Mo. 36; Morrill v. Blackman, 42 Conn. 324.] 
 
 (a) Per Wilde, B., Udells Atherton, 7 H. & N. at p. 181. ["The rule is- 
 uniyersal, whatever fraud creates justice will destroy :" Vreeland v. IT. J. Ston& 
 ■Co.,29 H". J. Eq. 188 ; Jones v. Emery, 40 N. H. 348.] 
 
 (b) 15 0. B. 597; 24 L. J. 0. P. 100. 
 
 557 
 
491 CHAP. IX. MISREPRESENTATION AND FRAUD. 
 
 more frequent case is where a person is induced to acquire or be- 
 •corae a partner in a business by false accounts of its position and 
 profits (a). 
 
 Or the representation may be of a general state of things : thus 
 it is fraud to induce a person to enter into a particular arrange- 
 ment by an incorrect and unwarrantable assertion that such is the 
 usual mode of conducting the kind of business in hand. (6) How 
 far it must be a representation of existing facts will be specially 
 ■considered. 
 
 " Active concealment '' seems to be the appropriate description 
 for the following sorts of conduct: taking means appropriate to 
 the nature of the ease to prevent the other party from learning a 
 material fact — such as using contrivances to hide the defects of 
 goods sold (c) : or making a statement true in terms as far as it goes, 
 but keeping silence as to other things which if disclosed would alter 
 the whole effect of the statement, so that what is in fact told is a half 
 truth equivalent to a falsehood (d) : or allowing the other party to 
 proceed on an erroneous belief to which one's own acts have con- 
 tributed (e). It is sufficient if it appears that the one party know- 
 ingly assisted in inducing the other to enter into the contract by 
 leading him to believe that which was known to be false (/). Thus 
 it is where one party has made an innocent misrepresentation, but 
 •on discovering the error does nothing to undeceive the other (g). 
 
 (a) E.g. Rawlins v. Wickham, 3 De G. & J. 304. The oases where contracts 
 to take shares have been held voidable for misrepresentation in the prospectus 
 ■are of the same kind. 
 
 (6) Reynell v. Sprye, 1 D. M. G. 680. 
 
 (c) See Benjamin on Sale, 384 [2d Am. ed. 441] ; [Singleton's Adm'r v. Ken- 
 nedy, 9 B. Mon. 222.] 
 
 (d) Peek v. Gurney, L. R. 6 H. L. 392, 403. [" The old adage applies, that 
 half the truth is a lie :" Hadley v. Clinton Imp'tg. Co., 13 O. S. 502, 513 ; Mal- 
 lory v. Leach, 35 Vt. 156, 168. So also "no one can evade the force of the im- 
 pression which he knows another received from his words and conduct, and 
 which he meant him to receive, by resorting to the literal meaning of his lan- 
 guage alone:" Mizner v. Kussell, 29 Mich. 229.] 
 
 (e) Hill u. Gray, 1 Stark. 434, as explained in Keates v. Earl Cadogan, 10 C. 
 B. 591, 600; 20 L. J. C. P. 76; qu. if the explanation does not really overrule 
 the particular decision, per Lord Chelmsford, L. R. 6 H. L. 391 ; Benjamin, 
 385-6 [2d Am. ed. 442-3]. 
 
 (/) Per Blackburn, J., Lee v. Jones, 17 C. B. N. S. at p. 507; 34 L. J. C. P. 
 at p. 140. 
 
 (g) Eeynell v. Sprye, 1 B. Mi G. at p. 709; [Davios v. Insurance Co., 8 Ok- 
 D. 469, 475 ; cp. Pettigrew ». Chellis, 41 .N. H. 95.] , 
 558 
 
FRAUDULENT REPRESENTATION OR CONCEALMENT. 492 
 
 As to this last point it is to be observed that in ordinary eases 
 it is not the duty of one party to a contract to correct a mir.ap- 
 *prebension of the other to which he has done nothing to [492 
 •contribute, though he may be aware of it. " Passive acquiescence 
 in a self-deception" (a) can not be put on the same footing as an 
 active encouragement of it which ha8 the nature of " aggressive de- 
 ceit " (6). Even if the one party asks the other a question as to 
 some collateral matter on which he is not bound to give informa- 
 tion, mere silence on the other's part is not equivalent to a repre- 
 sentation. This was decided by the American Supreme Court in 
 Laidlaw v. Organ (c). The contract there in question was a sale 
 of tobacco. On the morning of the sale the buyers knew, but the 
 sellers did not know, that peace had been concluded between the 
 United States and England. The sellers asked if there was any 
 news affecting the market price. The buyers gave no answer, and 
 the sellers did not insist on having one, and it was held that 
 the silence of the buyers was not a fraudulent concealment. 
 And, notwithstanding that the decision has been criticised (tf), it 
 seems right; for silence in such a case is of itself equivalent at 
 most to saying, " It is not our busines to tell you ; " which indeed, 
 us a part of the general law, the other party may be presumed to 
 know already. The real question in such a case is whether there 
 was nothing beyond mere silence. If there is evidence of any de- 
 parture from the attitude of passive acquiescence, to that extent 
 there is evidence of fraud ; and perhaps it is not too much to say 
 that the Court should be astute to find it. 
 
 Making an assertion with careless ignorance as to its truth or 
 
 (a) Smith v. Hughes, L. R. 6 Q. B. 597, 603. 
 
 (b) Keates v. Earl Cadogan, last page. 
 
 (c) 2 Wheat. 178. The case is almost exactly parallel to Smith v. Hughes 
 {last note but one), but was not there cited. 
 
 (d) Story Eq. Jur., \ 149. On the other hand it is in effect adopted as illus- 
 tration (d) to s. 17 of the Indian Contract Act: "A. and B. being traders, entei 4 
 upon a contract. A. has private information of a change in prices which would 
 affect B.'s willingness to proceed with the contract. A. is not bound to inform 
 B.:" jKintzing v. McElrath, 5 Pa. St. 467; Eisher v. Budlong, 10 R. I. 525,' 
 527-8; Smith v. Countryman, 30 N. Y. 655, 683-4. A person who knows that 
 there is a mine on the land of another, of which the latter is ignorant, may 
 nevertheless buy it without disclosing the existence of the mine: Harris ■<>. 
 Tyson, 24 Pa. St. 347 ; Smith v. Beatty, 2 Ired. Eq. 456 ; and see Williams v. 
 Spurr, 24 Mioh. 335.] 
 
493 * CHAP. IX. MISREPRESENTATION AND FRAUD.' 
 
 493] untruth is believed to be equivalent at law (a) as * well as 
 in equity (by to making it with knowledge of its untruth. 
 
 In this place we may note the special application of the doctrine 
 of fraud to sales by auction. The courts of law held -the employ- 
 ment of a puffer to bid on behalf of the vendor to be evidence of 
 fraud in the absence of any express condition- fixing a reserv-ed 
 price or reserving a right of bidding; for such a practice is incon- 
 sistent with the terms on which a sale by auction' is assumed- to 
 proceed, namely that the highest bidder is to be the purchaser, 
 arid is a device to put an artificial value, on the thing offered for 
 sale (c). There existed or was supposed' to exist (d) in .courts of 
 equity the different rule that the employment of one puffer to pre- 
 vent a sale at an undervalue was justifiable (e), with the extraor- 
 dinary result that in this particular case a contract might be valid 
 in equity which a court of law would treat as voidable on the 
 ground of fraud. The Sale of Land by Auction Act, 1867 (30 & 
 31- Vict c. 48), assimilated the rule of equity to that of law. The 
 Indian Contract Act (s. 123) adopts the rule of the commoa 
 law (/). iv- 
 
 (o) Per Maule, J., Evans v. Edmonds, 13 C. B. 777, 786, "I conceive that 
 if a man having no knowledge whatever on the subject takes upon himself to- 
 represent a certain state of facts to exist, he does so at his peril, and if it be 
 done either with a view to secure some benefit to himself or to deceive a third 
 person, he is guilty of a fraud, for he takes upon himself to warrant his own- 
 belief of the truth of that which he so asserts.'' [See supra, p. 482, note (cJ.J 
 
 (b) See p. 484, above. 
 
 (c) Green v. Baverstock, 14 0. B. N. S. 204; 32 L. J. C. P. 181. [Sucti is 
 generally held to be the rule in this country both at law and in. equity; Towle- 
 v. Leavitt, 23 N. H. 360; Pennock's Appeal, 14 Pa. St. 446; Staines v. Shore, 
 16 Pa. St. 200; Veazie v. Williams, 8 How; 134, 153; Walsh '». Barton, 24 O.. 
 S. 28, 46; Morehead v. Hunt, 1 Dev. Eq. 35; Woods v . Hal), 1 Dev. Eq. 4U ;. 
 McDowell *. Simms, 6 Ired. Eq. 278; Baham v. Bach, 13 La, 287. 
 
 The rule which has been sometimes suggested, Bank v. Spraguej 20 N, J. Eq.. 
 159, 165; Veazie v. Williams, 3 Story, 611, 621* that the fact of a puffer having, 
 bid at the sale will not avoid it, if, after the bid of the puffer there is a bid by 
 a real purchaser before the bid at which the, property is knocked , down, it is- 
 submitted is unsound.] 
 
 (d) Doubt was thrown Upon it in Mortimer v. Bell, 1 Ch. 10, 16.' c. -.<- 
 *' (e) Smith v. Olarke, 12 Ves. 483 ; Flint v. Woodin, 9 Ha. 618. 
 
 (/) " If at a sale by auction the seller makes use of pretended biddings to- 
 raise the price, the sale is voidable at the option of the buyer." 
 
 560 '" '" :,: - "• ' ' -'' 
 
FRAUD : SOME CONTRACTS SPECIALLY TREATED. 494: 
 
 It may also be mentioned here that marriage is an exception to 
 the general rule : but marriage, though including a contract, is so 
 much more than a contract (a) that the exception is hardly a real 
 one. It is the law of England, and probably of all civilized coun- 
 tries, that ''unless the party imposed upon has been deceived as to 
 the person and thus has given no consent at all, there is no degree 
 of deception which can avail to set aside a contract of marriage 
 knowingly made" (b). 
 
 Much less is a marriage rendered invalid by the parties or one 
 •of them having practiced a fraud on the persons who performed 
 the ceremony. Where a marriage had been celebrated in due form, 
 by Eoman ecclesiastics at Borne between two Protestants, who had 
 previously made a formal abjuration (the marriage not being oth- 
 erwise possible by the law of the place as it then was), *it [494 
 was held immaterial whether the abjuration had been sincere or 
 not, though as to the woman there was strong evidence to show 
 that it was not (c). 
 
 We may also observe in this place that when the consent of a 
 third party is required to give complete effect to a transaction be- 
 tween others, that consent may be voidable if procured by fraud, 
 and the same rules are applied, so far as applicable, which deter- 
 mine the like questions as between contracting parties. Thus 
 where the approval of the directors is necessary for the transfer 
 of shares in a company, a false description of the transferee's con- 
 dition, such as naming him "gentleman " when he is a servant or 
 messenger, or a false statement of a consideration paid by him for 
 the shares, when in truth he paid nothing or was paid to execute 
 
 (a) [See Wade v. Kalbfleisch, 58 N. Y. 282,284; Maguire v. Maguire, 7 
 Dana, 181, 183-4; Ditson v. Ditson, 4 E. I. 87,101; Green v. State, 08 Ala. 
 190.] 
 
 (i) Swift v. Kelly, 3 Knapp, 257, 293. As to promises to marry, supra, p. 
 481. [In this country at least one exception is generally admitted. Where at 
 the time of her marriage to a man who has no reason to believe her otherwise 
 than chaste, a woman is pregnant, the marriage will, at the suit of the hus- 
 band, be declared void for fraud. Morris «. Morris, Wright (Ohio), 630; Car- 
 ris v. Cams, 24 N. J. Eq. 516; Reynolds v. Reynolds, 3 Allen, 605; Donovan 
 v. Donovan, 9 Allen, 140; Baker v. Baker, 13 Cal. 87 ; contra, Long v. Long, 77 
 N. G. 304. 
 
 For an examination of the question as to what kind of fraud will render a- 
 anarriage voidable, see 1 Bishop on Marr. and Div., \ 165-g 206.] 
 
 (c) f-.wift v. Kelly, 3 Knapp, 257. 
 
 36 561 
 
494 CHAP. IX. MIS8EPBJISENTATXQN AND FRAUD. 
 
 the transfer, is a fraud upon the directors, the object being to mis- 
 lead tbem by the false suggestion of a real purchase of the shares- 
 toy a man of independent position ; and on a winding-up the Court 
 will replace the transferor's name on the register for the purpose 
 of making him a contributory (a). 
 
 (a) Ex parte Kintrea, 5 Ch. 95; Payne's oa., and Williams' ca., 9 Eq. 223 j, 
 Lindley, 2. 1436. 
 562 
 
HEPPESENTATJION. 495, 4&S- 
 
 ♦CHAPTER X. [495- 
 
 THE RIGHT OF RESCISSION. 
 
 We have now to examine a class of conditions which apply in- 
 differently, or very nearly so, to eases of simple misrepresentation 
 and cases of fraud. Some of them, indeed, extend to all contracts 
 ■which are or have become voidable for any cause whatever. 
 
 The questions to be dealt with may be stated as follows : 
 
 What must be shown with regard to the representation itself to- 
 give a right to relief to the party misled? 
 
 What is the extent of that right, and within what bounds can it 
 be exercised ? 
 
 1. As to the representation itself 
 
 A. It must (except, perhaps, in a case of actual fraud) be a 
 representation of fact, as distinguished on the one hand from mat- 
 ter of law, and on the other hand from a matter of mere inten- 
 tion. 
 
 As to the first branch of the distinction, there is authority at 
 common law that a misrepresentation of the legal effect of an instru- 
 ment by one of the parties to it does not enable the other to avoid 
 it (a). And in equity there is no reason to suppose that the rule is 
 otherwise, though the authorities only go to this extent, that no in- 
 dependent liability can arise from a misrepresentation of what is 
 purely matter of law (6). But this probably *does not ap- [496 
 
 (a) Lewis v. Jones, 4 B. & C. 506. Not so if the actual contents or nature- 
 of the instrument are misrepresented, as we saw in Ch. VIII. 
 
 (J) Rashdall v . Ford, 2 Eq. 750; Beattie v. Lord Ebury, 7 Ch. 777, 802, L. R. 
 7 H. L. 102, 130 (the House of Lords held there was no misrepresentation at all). 
 [That as a general rule a misrepresentation of a matter of law neither consti- 
 tutes ground for avoiding a contract nor gives rise to any independent liability, 
 see'Cl'em v. Railroad Co., 9 Ind. 488; Parker v. Thomas, 19 Ind. 213, 219; Rus- 
 sell «. Branham, 8 Blackf. 277; Fish v. Clelland, 33 111. 238; Martin v. Whar- 
 ton, 38 Ala. 637; Beall v. MeGehee, 57 Ala. 438 ; Starr v. Bennett, 5 Hill, 303 - r 
 Fonple v. San Francisco, 27 Cal 655; Insurance Co. v. Reed, 33 O. S. 283, 293 ; 
 Upton v. Triblloook, 91 U. S. 45. 50. The representation in the last case having- 
 "been as to the law of a foreign state, it is submitted, should have been treated- 
 
 563 
 
496 CHAP. X. THE RIGHT OP RESCISSION. 
 
 ply to a deliberately fraudulent misstatement of the law (a). The 
 circumstances and the position of the parties may well be such as 
 to make it not imprudent or unreasonable for the person to whom 
 the statement was made to rely on the knowledge of the person 
 making it: and it would certainly work injustice if it were held 
 necessary to apply to such a case the maxim that every one is pre- 
 sumed to know the law (a). 
 
 As to the second branch, we must put aside the cases already 
 mentioned, in which the substance of the fraud is not misrepresent- 
 ation, but a wrongful intention going to the whole matter of the 
 contract. Apart from these it appears to be the rule that a false 
 representation of motive or intention, not amounting to or inclu- 
 ding an assertion of existing facts, is inoperative. "It is always 
 necessary to distinguish, when an alleged ground of false repre- 
 sentation is set up, between a representation of an existing fact 
 which is untrue and a promise to do something in future" (6). On 
 this grdund was put the decision in Vernon v. Keys (e), where the 
 defendant bought a business on behalf of a partnership firm. The 
 price was fixed at 4,500£. on his statement that his partners would 
 not give more : a statement afterwards shown to be false by the fact 
 that he charged them in account with a greater price and kept the 
 resulting difference in their shares of the purchase-money for him- 
 self. It was held that the vendor could not maintain an action of de- 
 ceit, as the statement amounted only to giving a false reason for not 
 offering a higher price. The case also illustrates the principle that 
 collateral fraud practiced by or against a third person does not 
 avoid a contract. Here there was fraud, and of a gross kind, as 
 between the buyer and his partners; but we must dismiss this from 
 
 as a representation of fact: Upton v. Englehart, 3 Dill. 496, 501 ; cp. supra, pp. 
 358, 378, ad init. note (d), 397, note (/), ad fin.] 
 
 (a) Hirschfeld v. London, Brighton & South Coast Ey. Co., 2 Q. B.D.I; 
 [Townsend v. Cowles, 31 Ala. 428; Moreland v. Atchison, 19 Tex. 303; Cooke 
 v. Nathan, 16 Barb. 342.] 
 
 (b) Mellish, L. J., Ex parte Burrell, 1 Ch. D. at p. 552; [Gage v. Lewis, 68 
 111.004; Perkins v. Lougee, 6 Neb. 220; Sawyer v. Prickett, 19 Wall. 146; 
 Fenwick v. Grimes, 5 Cr. C. C. 439 ; Fisher v. N. Y. Com. Pleas, 18 Wend. 608; 
 Long v. Woodman, 58 Me. 49; Hazlett v. Surge, 22 la. 535.] 
 
 (c) 12 East, 632, in Ex. Ch. 4 Taunt. 488. The language used in the Ex. Ch. 
 -to the effect that the buyer's liberty must be co-extensive with the seller's, 
 
 which is to "tell every falsehood he can to induce a buyer to purchase," is of 
 ^course not to be literally accepted. 
 564 
 
HOW PAR REPRESENTATION MUST BE OF PACT. 49T 
 
 considention in order to form a correct estimate of the decision as 
 between the buyer and seller. It must be judged of as if the 
 buyer had communicated the whole thing to his partners and 
 charged them only with the price really given. Still the decision 
 is difficult to accept. For the buyer was the agent of the firm, and 
 in substance *made a false statement of a distinct matter of [497 
 fact touching the extent of his authority, though it was no doubt 
 a matter as to which he was not bound to make any statement or 
 to answer any questions. And it has been lately held in the Privy 
 Council that it is clearly fraudulent for A. and B. to combine to sell 
 property in B.'s name, B. not being in truth the owner but only an 
 intermediate agent, and the nominal price not being the real price 
 to be paid to the owner A., but including a commission to be 
 retained by B. (a). This seems to shake the authority of Yernon 
 »: Keys, though it can not actually overrule the decision (b). This- 
 difficulty, however, affects only the particular application of the 
 doctrine on which the Court proceeded. 
 
 But there are a series of decisions in equity which establish a 
 somewhat different rule. Where a contract has been entered into 
 upon the repi*esent:itions of one party that he will do something 
 material to the other party's interest under it, and he does not 
 make good that representation, he can not enforce specific perform- 
 ance of the contract (c) : and in one case the contraet has even 
 been set aside at the suit of the party misled. No doubt it would 
 be possible in most if not in all of these cases to treat the repre- 
 sentation as amounting to a collateral agreement, and perhaps in 
 the last case to say that the original contract was conditional on its 
 performance. But the judgments seem studiously to avoid that 
 mode of handling the subject (d) : otherwise we should venture to 
 
 (a) Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 221, 243. 
 
 (b) The decisions of the Judicial Committee, though they carry great weight, 
 are not binding in English Courts: and the Court of Appeal has lately refused 
 to follow the Judicial Committee on a point of considerable importance : Leask 
 v. Scott, 2 Q. B. D. 376. 
 
 (c) Peacock v. Penson, 11 Beav. 355, is perhaps an authority that the other- 
 party may sue for specific performance with fulfillment of the collateral repre- 
 sentation or compensation in the alternative. But the Court appears to have- 
 treated the representation as substantially embodied or implied in the contract 
 itself. 
 
 (d) Myers v. "Watson, 1 Sim. N. S. 523; Lamare v. Dixon, L. K. 6 H. L. 414„ 
 
 565 
 
498 CHAP. X. THE RIGHT OF RESCISSION. 
 
 suggest 'his as the more correct and convenient view, and perhaps 
 it deserves attention that the bearing of the decision in Jorden v. 
 498] Money (a) on this particular question does not appear *to 
 have been as yet seriously discussed. In the first set of cases, 
 whore specific performance was refused, the vendor or lessor had 
 represented that he would do something for the purchaser's or 
 lessee's benefit, either in the, way of repair or improvement on'the 
 property itself (6), or by executing works on adjoining property* 
 as part of a general plan (c). In the one case which goes farther 
 the contract was a partial re-insurance effected by one insurance 
 society (A.) with another (B.) for one-third of the original risk, on 
 the understanding that one-third was to be re-insured in like man- 
 ner with another office C, and the remaining one-third retained by 
 A., the first insurers. This last one-third was afterwards re-insured 
 by A. with C. without communication with B. It was held that 
 society B. was entitled to set aside the policy of re-insurance given 
 by it on the faith that society A. would retain part of the liability. 
 And it was said to make no difference that such an intention was 
 really entertained at the time : for the change of intention ought 
 to have been communicated. " If a person makes a representation 
 by which he induces another to take a particular course, and the/ 
 circumstances are afterwards altered to the knowledge of the party 
 making the representation,- but not to the knowledge of the party 
 to whom the representation is made, and are so altered that the 
 alteration of the circumstances may affect the course of conduct 
 which may be pursued by the party to whom the representation is. 
 made, it is the imperative duty of the party who has made the 
 representation to communicate to the party to whom the repre- 
 sentation has been made the alteration of those circumstances "(d). 
 
 428, per Lord Cairns: Lord Chelmsford does use the' word agreement; at p. 
 423; and see last note. , , .... 
 
 (a) 5 H. L. C. 185., Theconsideration of that decision in Piggotta. Strat-. 
 ton, I D. F. J. 33, is not inconsistent with the statement in the text. For thei 
 -ease was one of equitable estoppel, so far as not decided on the ground of actual, 
 contract, and the, representation, was not P? intention,. but that a certain state 
 of things existed and would continue to exist. 
 
 (6) Lainare v. Dixon, supra. ■>: :, 
 
 (c) Beaumont v. Dukes; Juc. 422; Myers ji. "Watson; supra ; [Donelson ■*.< 
 Weakley, 3 Yerg. 178; Eogers v. Salmon, 8 Paige, 559; but see "Wilson* ■».• 
 Deen, 74 N. Y. 531.] ,.,,-. ■ < .■■•. . '•..•- •...■•■ -. . , ..; ;'• 
 
 (d) Traill v. Baring, 4 D. J. S. 318, 329, per Turner, L. J. 
 
 566 
 
REPRESENTATION IttUST INDUCE CONTRACT. 439 
 
 On thewhole the view taken in the cases appears to be that the 
 representation of a definite thing or state of things as existing or 
 About to exist, though it may not amount to an agreement, gives a 
 person to whom it was made and who lias acted upon it a substan- 
 tive right in equity to have the representation made good (a) : and 
 then, on the principle of avoiding circuity of action, this right in- 
 volves that of resisting the enforcement of a contract obtained by 
 such representation if *the representation has not been [499 
 fulfilled, or even of preventing it by a suit for recission. A com- 
 plete exposition of the subject by a Court of Appeal is much to be 
 desired. 
 
 B. The representation must be such as to induce the contract 
 {dans locum contractui) (b). 
 
 This proposition is illustrated by the cases already refifrred to ^ 
 in the last chapter, showing that a party can have no relief on 
 the ground of misrepresentation or fraud if in truth he has acted 
 not on the representations of the other but on his own judgment 
 of facts fully before him or on the results of inquiries made by 
 himself. The case of Horsfall v. Thomas (c) was decided On the 
 same principle ■; there acontrivance was used to conceal a defect in 
 a gun manufactured to a purchaser's order, but the purchaser took 
 it without any inspection, and therefore in the judgment of the 
 Court could not say he had been in fact deceived. 
 
 It might also be given as a rule that the representation must be 
 material. But to make this quite accurate it should be stated in 
 the- converse form, namely, that a material representation may be 
 presumed to have in fact induced the contract; for a man who has 
 obtained a contract by false representations can not afterwards be 
 heard to say that those representations were not material. The 
 excuse has often been put forward that for any thing that appeared 
 the other party might no less have given his consent if the truth 
 had been made known to him, and the Court has always been swift' 
 to reject it. "When a falsehood is proved, the Court does not re- 
 
 (u) As in Slim v. Oroucher, 1 D. F. J. 518. Where the representation is 
 fraudulent, the remedy in equity becomes parallel to the legal remedy by ac- 
 tion of deceit: but this element is not necessary. 
 
 (b) Per Lord Brougham, Attwood v. Small, 6 01. & P.- 444; per Lord-Wens- 
 leydale, Smith v. Kay, 7 H. L. C. 775-6; [Bowman v. Carithers, 40 Ind. 90; 
 Anderson v. Burnett, 5 How. (Miss.) 165; Ely v. Stewart; 2 Md". 4C3.} 
 
 (c) 1 H. & C. 90; 31 L. J, Ex; 322; but .see- per CockWrri, 0. J., Smith v. 
 Hughes, L. It. 6 Q. B. at p. 605. 
 
 567 
 
500 CHAP. X. THE RIGHT OF RESCISSION. 
 
 quire positive evidence that it was successful (a) ; it rather pre- 
 • sumes that assent would not have been given if the facts had been, 
 known (b). Those who have made false statements can not ask 
 the Court to speculate on the exact share they may have had in in- 
 ducing the transaction (c) ; or on what might have been the result 
 if there had been a full communication of the truth (d) : it is 
 500] enough that an untrue statement has been *made which was 
 likely to induce the party to enter into the contract, and that he 
 has done so (e). 
 
 In like manner, if there has been an omission even without fraud 
 to communicate something which ought to have been communicated, 
 it is too late to discuss whether the communication of it would 
 probably have made any difference (/). 
 
 If it be asked in general terms what is a material fact, we may 
 answer, by an extension of the language adopted by the Queen's- 
 Beneh in a case of marine insurance (gr), that it is any thing which 
 would affect the judgment of a reasonable man governing himself 
 by the principles on which men in practice act in the kind of busi- 
 hess in hand. 
 
 There is an exception, but only an apparent one, to the rule that 
 the representation must be the cause of the other party's contract- 
 ing. A contract arising directly out of the previous transaction 
 between the same parties which was voidable on the ground of 
 
 (a) Williams' ea., 9 Eq. 225, n. 
 
 (6) Ex parte Kintrea, 5 Ch. at p. 101. 
 
 (c) Eeynell v. Sprye, 1 D. M. G-. at p. 708; [James v. Hodsden, 47 Vt. 127,. 
 137 ; Cabot v. Christie, 42 Vt. 121, 127. 
 
 " It is not necessary that the false representations should have been the sole 
 or even the predominant motive; it is enough if they had material influence- 
 upon the plaintiff, although combined with other motives :" Safford v. Grout, 
 120 Mass. 20, 25 ; Matthews «. Bliss, 22 Pick. 48; Hough v. .Richardson, 3 Story,. 
 659, '690. 
 
 When a party has been entrapped into a contract by fraud, and defends an> 
 action on it on that ground, it is no answer to his defense that, notwithstanding 
 the fraud, if he will pay, his money will be so used that he will sustain no 
 harm : Water Valley Mfg. Co. v. Seaman, 53 Miss. 655.] 
 
 (d) Smith v. Kay, 7 H. L. O. at p. 759. 
 
 (e) Per Lord Denman, C. J., Watson a. Earl of Charlemout, 12 Q. B. 856 n 
 664. 
 
 (/) Traill v. Baring, 4 D. J. S. at p. 330. 
 (g) Ionides v. Pender, L. R. 9 Q. B. 639 ; supra, p. 466. 
 568 
 
CONTRACTS CONNECTED WITH PREVIOUS FRAUD : AGENCY. 501 
 
 fraud is itself in like manner voidable. A. makes a contract with 
 "JB., with the frudulent intention of making it impossible by a secret- 
 scheme for B. to perform the contract. B. ultimately agrees to pay 
 and does pay to A. a sum of money to be released from the con- 
 tract : if he afterwards discovers the scheme B. can rescind his last 
 agreement and recover the money back (a). 
 
 " If the promoter of a company procures a company to be formed by 
 improper and fraudulent means, and for the purpose of securing a profit 
 to himself, which, if the company was successful, it would be unjust and 
 inequitable to allow him to retain, [in the particular case a secret pay- 
 ment to the promoter out of purchase-money] and the company proves 
 abortive and is ordered to be wound up without doing any business, the 
 promoter can not be allowed to prove against the company in the wind- 
 ing up, either in respect of his services in forming the company or in re- 
 spect of his services as an officer of the company after the company was 
 registered " (5). 
 
 So it is where the parties really interested, though not the nominal 
 parties, are the same. Thus where a sale of goods is *pro- [501 
 cured by fraud, and the vendors forward the goods by railway to- 
 the purchaser's agent, and afterwards reclaim them, indemnifying 
 the railway company, these facts constitute a good defense to an 
 action by the purchaser's agent against the railway company, 
 though the re-delivery to the vendors was before the discovery of 
 the fraud and arose out of an unsuccessful attempt to stop the 
 goods in transitu (c). 
 
 C. The representation must be made by a party to the contract. 
 This rule in its simple form is elementary. It is obvious that A. 
 can not be allowed to rescind his contract with B. because he has 
 been induced to enter into it by some fraud of C. to which B. is 
 no party (d). Thus in Sturge v. Starr (e) a woman joined with 
 her supposed husband in dealing with her interest in a fund. 
 The marriage was in fact void, the man having concealed from her 
 
 (a) Barry v. Croskey, 2 J. & H. 1. [See Baker v. Spencer, 47 N. Y. 562.] 
 
 (b) Per Cur., Hereford & S. Wales Waggon & Engineering Co., 2 Ch. D. 
 621, 626. 
 
 (c) Clough v. L. & N. W. Ky. Co. (Ex. Ch.) L. R. 7 Ex. 26, an exceedingly- 
 instructive case: as to the misconceived act being justified by reference to tha 
 true ground of rescission afterwards discovered, cp. Wright's ca., 7 Ch. 55. 
 
 (d) See per Lord Cairns, Smith's ca., 2 Ch. at p. 616 ; [Law v. Grant, 37 Wis. 
 548; Williamson v. Kaney, Freem. Ch. (Miss.) 112.] 
 
 (e) 2 My. & K. 195. [The case would have been different had the purchaser 
 had notice: Proctor v. McCall. 2 Bail. 298.] 
 
 569 
 
©02 CHAP. X. THE BIGHT PP RESCISSION. 
 
 a previous marriage. It was held that this did not affeet the rights 
 of the purchaser. And so if A. effects an insurance on the life of 
 B., false statements made by B. to the insurance office concerning 
 his own health, but not known by A. to be false, do not in the ab- 
 sence of special conditions avoid the contract (a). 
 
 But when we come to deal with contracts made by agents the 
 ■question arises to what extent the representations of the agent are 
 to be considered as the representations of the principal for the pur- 
 poses of this rule. And this question, though now practically, if 
 not absolutely, set at rest by recent decisions, is one which has 
 given r\>e to some difficulty. A false statement made by an agent 
 ■with his principal's express authority, the principal knowing it to 
 be false, is obviously equivalent to a falsehood told by the princi- 
 pal himself (6) ; and we do not know that this has ever been dis- 
 puted, or that it has been ever supposed to make any difference 
 ■whether the agent knows the statement to be false or not. But 
 ■we may also have the following cases. The statement may be not 
 expressly authorized by the principal, nor known to be untrue by 
 502] him, but known to be untrue by the agent; or *conversely, 
 the statement may be not. known to the agent to be untrue, and 
 not expressly authorized by the principal, the true state of the 
 facts being, however, known to the principal. There is no doubt 
 that in the first case the. principal is responsible both at law and in 
 equity, subject only to the limitation to be presently stated. In 
 the second case there is every reason to believe that the same rule 
 holds good. At common law there has been a much canvassed de- 
 cision to the contrary (c), whichj however, has been practically 
 overruled by the remarks since made upon it (d), or at any rate 
 cut down to a decision on a point of pleading which perhaps can 
 not, and certainly need not, ever arise- again. 
 
 We can at once see that the above distinctions are- material, if at 
 all, only when there is a question of fraud in the strict sense, and 
 then chiefly when it is sought to make the principal liable ex de- 
 licto. Where a non-fraudulent misrepresentation, suffices to avoid 
 
 (a) Wheelton v. Hardisty, 8.E. & B. 232, 285; 27 IT. J. Q;B. 241., 
 
 (b) [Maggart v. Freeman, 27 Ind. 581.] ".-.--. 
 
 (c) Gorilfoot v. FoWke, 6 M. &' W. 358.' ""' '" ' ■' 
 
 ' (tf) '2'Sra. L. C. 88 '[7th Am. ed. 107]; and see especially per "Willes, j:; in. 
 Barwick v. English Joint Stock Bank, L. E. 2 Ex. 262; [Story on Agericy, 8th 
 •gd., §189, p. 168, n. 1 ; Fitzsimmonis; v. Joslin, 21 Vt. "129, 140.]" 
 
 570 ' : ■.'.'•■,:■.>.., 
 
REPRESENTATIONS OF AGENTS. 503 
 
 the contract, there it is clear that the only thing to be ascertained 
 is whether the representation was in fact within the scope of the 
 agent's authority But it may be now taken as the law that this 
 is the only question even in a case of ft'aud. It was so laid down 
 in a recent ease by a considered judgment of the Exchequer Cham- 
 ber (a), fully approved by more recent decisions of the Judicial 
 Committee (b). According to this the rule is "that the master is 
 -answerable for every such Wrong," including fraud, "of the ser- 
 vant or agent as is committed in the course of the service and for 
 the 1 master's benefit, though no express command or privity of the 
 masler be proved;" Although the master may not have author- 
 ized the particular act, yet if "he has put the agent in his place to 
 do that class of acts" he must be answerable for the agent's con- 
 duct. It makes no difference whether the principal is a natural 
 person or a corporation (c). In both of these cases, accordingly, 
 a banking corporation was held to bo liable for a false representa- 
 tion made by *one of its officers in the course of the busi- [503 
 ne'ss usually conducted by him on behalf of the bank ; and this 
 of course involves the proposition that the party misled is entitled 
 to rescind the contract induced by such representation. On the 
 whole there seems to be no room for serious doubt that the law of 
 England as now settled is correctly expressed by s. 238 of the In- 
 dian Contract Act : — 
 
 " Misrepresentations made, or frauds committed, by agents acting in 
 the course of their business for their principals, have the same effect on 
 agreements made by such agents as if such misrepresentations or frauds 
 had been made or committed by the principals ; but misrepresentations 
 made or frauds committed by agents in matters which do not fall within 
 their authority do not affect their principals " (d). 
 
 (a) Barwiek v. English Joint Stock Bank, L. B. 2. Ex. 259. 
 
 (6) Mackay v. Commercial Bank of New Brunswick, L. B. 5 P. 0. 394, 411 ; 
 Swire v. Francis, 3 App. Ca. 106. 
 
 (c) L. E. 5 P. C. 413-5:; Swift ii. Jewsbury (Ex. Ch.), L: B. 9 Q. B. at p. 
 312, per, Lord Coleridge, 0. J.; [Houldsworth v. Bank, 5 App. Ca. 317, 326, per 
 Lord Selborne (H: L.'Sc.)? Chapleo .'*. Brunswick Benefit Bld'g. Soc, 5 ,C. P. 
 D. 331.] ' .■■:■■■ ■ .'.: •'■•• ■ •' ' ■• .-."'•■< • " : " : 
 
 (a!) [The principal; whether a natural person^ or a co'rporAtion, can not take 
 the benefit of acts or negotiations of an agent without bearing the burden of' 
 any liabilities growing' out of them on account of any falsehoods or frauds of 
 the agent that accompanied them : Veazie v. Williams, 8 How. 134; Presby v. 
 Parker,, 5& N.; H» ,409 ; -Law V, .Grant, 37 Wis,. ; 548; Hendersoa v. Bailroad Co., 
 17 Tex. 560; Scofield, &c, Co. v. State, 54 Ga. 635; Bank v. Gregg, ,14 N. H. 
 
 571 
 
503 CHAP. X. THE EIGHT OS 1 RESCISSION. 
 
 The directors and other officers of companies, acting within the- 
 functions of their offices, are for this purpose agents, and the com- 
 panies are bound by their acts and conduct. Conversely, where 
 directors employ an agent for the purposes of the company, and 
 that agent commits a fraud in the course of his employment with- 
 out the personal knowledge or sanction of the directors, the rem- 
 edy of persons injured by the frauds is not against the directors,, 
 ■who are themselves only agents, but against the company as ulti- 
 mate principal (a). And reports made in the first instance to a. 
 company by its directors, if afterwards adopted by a meeting and 
 " industriously circulated," must be treated as the representations- 
 of the company to the public, and as such will bind it (b). State- 
 ments in a prospectus issued by promoters before the company is 
 in existence can not indeed be said with accuracy to be made by 
 agents for the company : for one can not be an agent oven by sub- 
 sequent-ratification for a principal not in existence and capable 
 of ratifying at the time (c). But such statements also, if after-- 
 ■wards expressly or tacitly adopted, become the statements of the- 
 company. It is a principle of general application, by no means 
 confined to these cases, that if A. makes an assertion to B., and B. 
 repeats it to C. in an unqualified manner, intending him to act 
 upon it, and C. does act upon it, B. makes that assertion his own 
 
 331 ; Crump v. U. S. Mining Co., 7 Gratt. 352 ; Upton v. Englehart, 3 Dill. 496 ; 
 Fogg v. Griffin, 2 Allen, 1 ; Eailroad Co. v. Schuyler, 34 .N. Y. 30; "Waldo *,. 
 Eailroad Co., 14 Wis. 575; Tome v. Eailroad Co., 39 Md. 36; Elwell v. C'bam- 
 berlin, 31 N. Y. 611, 619; Mason «. Crosby, 1 Woodb. & M. 342, 358; Doggett. 
 v. Emerson, 3 Story, 700, 735. 
 
 That the principal is liable in an action of deceit for the false representations 
 made by an agent acting in the course of his business for his principal, see- 
 Jeffrey v. Bigelow, 13 Wend. 518; Bennett v. Judson, 21 N. Y. 238; Locke v. 
 Stearns, 1 Met. 560 ; White v. Sawyer, 16 Gray, 586, 589 ; Ladd v. Lord, 36 Vt. 
 194. That the rule is the same, though the principal be a corporation, see- 
 -suprii, p. 87.] 
 
 \,a) Weir v. Barnett, 3 Ex. D.32; [aff'd. 3 Ex. D. 238, sub. nom. Weir v. Bell- 
 '•A director of a company is not liable for a fraud (such as the issue of a fraud- 
 ulent prospectus of the company), committed by his co-directors or by any 
 other agent of the company, unless he has either expressly authorized or tacitly 
 permitted its commission :" Cargill v. Bower, 10 Ch. D. 502 ; Arthur v. Gris- 
 wold, 55 N. Y. 400.] 
 
 (6) Per Lord Westbury, New Brunswick, &c, Co. v. Conybeare, 9 H. L. C 
 711, 725. 
 
 (c) P. 233, above. Contra, Spiller v. Paris Skating Bink Co., 7 Ch. D. 868v 
 572 
 
REPRESENTATION MUST BE IN SAME TRANSACTION. 504, 505 
 
 ^and is answerable for its consequences. If he would *guard [504 
 himself, it is easy for him to say: " This is what A. tells me, and 
 •on his authority I repeat it; for my own part I believe it, but if 
 you want any further assurance it is to him you must look " (a). 
 
 It is to be borne in mind that in a case of actual fraud on the 
 -part of an agent the responsibility of the principal does not in any 
 ■way exclude the responsibility of the agent. "All persons di- 
 rectly concerned in the commission of a fraud are to be treated as 
 principals;" and in this sense it is true that an agent or servant 
 can not be authorized to commit a fraud. He can not excuse him- 
 '■aelf on the ground that he acted only as agent or servant (6). 
 
 D. The representation must be made as part of the same trans- 
 •action. 
 
 It is believed that the statement of the rule in this form, though 
 at first sight vague, is really more accurate than that which pre- 
 sents itself as an alternative, but is in fact included in this — 
 namely that the representation must be made to the other party 
 or with a view to his acting upon it. The effect of the rule is that 
 the untruth of a representation made to a third person, or even to 
 the party himself on some former occasion, in the course of a differ- 
 ent transaction and for a different purpose, can not be relied on as 
 aground either for rescinding a contract or for maintaining an 
 ^action of deceit (c). Thus in Western Bank of Scotland v. Ad- 
 die (d) the directors of the bank had made a series of flourishing 
 but untrue reports on the condition of its affairs, in which bad 
 debts were counted as good assets. The shareholder who sought 
 relief in the action had taken additional shares on the faith, as he 
 said, of these reports. But it was not shown that they were issued 
 or circulated for the purpose of inducing existing shareholders to 
 take more shares, or that the local agent of the bank who effected 
 this *particular sale of shares used them or was authorized [505 
 to use them for that purpose. Thus the case rested only on the 
 
 («) Smith's ca., 2 Ch. 604, 611; p. 484, above; and further, as to the applica- 
 tion of the doctrines of agency to partners and directors on these points, Lind- 
 iey, 1. 333; but note the effect of Mackay v. Commercial Bank of New Bruns- 
 wick, L. R. 5 P. C. 394, on the law as there stated and the dicta there cited. 
 
 (6) Per Lord Westbury, Cullen v. Thomson's Trustees and Kerr, 4M a , 
 -424, 432; Swift v. Winterbotham, L. K. 8 Q..B. 244, 254. 
 
 (c) [Fogg v. Pew, 10 Gray, 409, 415-416; McCracken v. West, 17 Ohio, 1 6.j 
 
 (d) L. E. 1 Sc. & D. 145. 
 
 573 
 
505 CHAP. X. THE BIGHT OP RESCISSION. 
 
 purchaser having acted under an impression derived from these- 
 reports at some former time'; andthat was not such a direct, con- 
 nection between the false representation and the conduct induced 
 by it as must be shown in order to rescind a contract. This, how- 
 ever, was not the only ground of the decision. 
 
 In Peek v. Criirney (a) the important point is decided that the 
 sole office of a prospectus is to invite the public to take shares in 
 the company in the first instance. Those who take shares in re- 
 liance on the prospectus are entitled to their remedy if the state- 
 ments in it are false. But those statements can not be taken as ad- 
 dressed to all persons who may hereafter become purchasers of" 
 shares in the market ; and such persons can not; claim any relief on 
 the ground of having been deceived by the prospectus unless they 
 can show that it was specially communicated to them by some fur- 
 ther act on the part of the company or the directors. Some former- 
 decisions the other way (b) are expressly overruled. The proceed- 
 ing there in hand was in the nature of an action of deceit, but the- 
 doctrine must equally apply to the rescission of a contract. 
 
 In Way v. Hearn (c) the action was on a promise by the defend- 
 ant to indemnify the plaintiff against half of the loss he might 
 sustain by having accepted a bill drawn by one E. Shortly before 
 this, in the course of an investigation of E.'s affairs in which the de- 
 fendant took part, E. had at the plaintiff 's request concealed from the 
 accountant employed in the matter the fact that he owed a large sum 
 to the plaintiff; the plaintiff said his reason for this was that he did 
 
 (a) L. K. 6 H. L. 377, 395; and see the case put by Lord Cairns as an illus- 
 tratioa at p. 411. ['-Whore B., the owner of a small flock of sheep, apparently- 
 sound and healthy, but known by him to be diseased with a contagious malady, 
 falsely and fraudulently represents them as sound and healthy to A., acting as 
 the known agent of C, and A., confiding in such representations, buys them 
 for C, and with the avowed purpose of mingling them with a larger flock then 
 belonging to C, in consequence of which mingling the united flock is infected; 
 and A. and C. being still unaware of the existence of the disease, A. buys the 
 united flock from C, and suffers damage from the continued spread of the. dis- 
 ease : Held, that the representations not having been made to A. to induce him 
 to act upon them in any matter, affecting his own interests, he can not maintain 
 an action against B. for the deceit" : Wells v. Cook, 16 O. S. 67.] 
 
 (6) Bedford v. Bagshaw, 4 H. & N. 538 ; 29 L. J. Ex. 59 ; Bagshaw v. Sey- 
 mour, 18 C. B. 903; 29 L. J. fix. 62, n. The authority of Gerhard v. Bates, % 
 E. <& B. 476 ; 22 L. J. Q. B. 364, is saved by a rather fine distinction: L. B. 6» 
 H. L. 399. 
 
 (c) 13 C. B. N. S. 292; 32 L. J. 0. P. 34. 
 574 
 
OPTION XO RESPIND. 50© 
 
 not wish his wife to know he had lent so much money upon bad se- 
 curity. At this time the bill which was the subject of the indem- 
 nity was not thought of; it was in fact given to get rid of an exe- 
 cution afterwards put in by another creditor. Here a misrepresen- 
 tation as to E.'s solvency was made by K. in concert with the 
 ♦plaintiff, and communicated to the defendant ; but it was [50(> 
 in a transaction unconnected with the subsequent contract between 
 the plaintiff and the defendant, and the defendant was therefore 
 not entitled to dispute the contract on the ground of fraud. 
 
 2. As to the right of the party misled. This right is one which 
 requires, and in several modern cases of importance has received,. 
 an exact limitation and definition. It may be thus described : 
 
 The party who has been induced to enter into a contract by fraud 
 or misrepresentation may affirm the contract and insist, if that is- 
 possible, on being put in the same position as if the representation, 
 had been true : 
 
 Or he may at his option rescind the contract within a reasonable- 
 time (a) after discovering the misrepresentation, unlessithas become 
 impossible to restore the parties to the position in which they would 
 have been if the contract had not been made, or unless any third 
 person has in good faith and for value acquired any interest under 
 the contract. 
 
 It will be necessary to dwell separately on the several points in- 
 volved in this. And it is to be observed that the principles here 
 considered are not confined to any particular ground of rescission, 
 but apply generally when a. contract is voidable, either for fraud or 
 on any other ground, at the option of one of the parties ; on a sale 
 of land, for example, it is constantly made a condition that the 
 vendor may rescind if the purchaser takes any objection to the 
 title which the vendor is unable to remove; and then these rules, 
 apply as far as the nature of. the case admits. 
 
 A. As to the nature of the right in general, and what is an 
 affirmation or rescission of the contract. 
 
 "A contract induced by fraud is not void, but voidable only at 
 the option of the party defrauded ;" in other words, valid Until re- 
 scinded (6). 
 
 Where the nature of the case admits of it, the party misled 
 
 (a) But gu. whether time is in' itself material: see L. E. 7 Ex. 35; 8 Ex.205, 
 (ft), Oakes v. Turquand, L. K. 2 H. L. 346, 375-6; [Upton v. Englehait, 3 
 Dill. 496, 504; Foreman «. Bigelowy 7 C. L. J. 430.] 
 
 575 
 
507 CHAP. X. THE RIGHT OF RESCISSION. 
 
 507] *may affirm the contract and insist on having the represen- 
 tation made good. If the owner of an estate sells it as unincum- 
 bered, concealing from the purchaser the existence of incum- 
 brances, the purchaser may if he thinks fit call on him to perform 
 hit; contract and redeem the incumbrances (a). If promoters of a 
 partnership undertaking induce persons to take part in it by un- 
 truly representing that a certain amount of capital has been al- 
 ready subscribed for, they will themselves be put on the list of con- 
 tributories for that amount (6). 
 
 It is to be remembered that the right of election, and the possi- 
 bility of having the contract performed with compensation, does 
 not exclude the option of having the contract wholly set aside. 
 "It is for the party defrauded to elect whether he will be 
 bound" (c). But if he does affirm the contract, he must affirm it 
 in all its terms. Thus a vendor who has been induced by fraud to 
 sell goods on credit can not sue on the contract for the price of the 
 goods before the expiration of the credit : the proper course is to 
 rescind the contract and sue in trover (d). When the contract is 
 once affirmed, the election is completely determined; and for this 
 purpose it is not necessary that the affirmation should be express. 
 Any acts or conduct which unequivocally treat the contract as sub- 
 sisting, after the facts giving the right to rescind have come to the 
 knowledge of the party, will have the same effect (e). Taking 
 steps to enforce the contract is a conclusive election not to rescind 
 on account of any thing known at the time (/). A shareholder 
 can not repudiate his shares on the ground of misrepresentations 
 
 (a) Per Eomilly, M. E., in Pulsford v. Richards, 17 Beav. 96. Cp.\Ungley v. 
 Ungley, 5 Ch. D. 887. 
 
 (6) Moore and De Ja Torre's ca., 18 Eq. 661. 
 
 (c) Rawlins v. Wickham, 3 De G. & J. 304, 322. 
 
 (d) Ferguson v. Carrington, 9 B. & C. 59; [Delone v. Hull, 47 Md. 112; Kel- 
 logg v. Turpie, 2 Bradwell, 55; contra, Wigand v. Sichel, 3 Keyes, 120; and 
 see Barrett v. Koell, 5 Biss. 40.] 
 
 (e) Clough v. L. & N. W. Ky. Co. (Ex. Ch.), L. K. 7 Ex. at p. 34. 
 
 (/) Gray v. Fowler (Ex. Ch.), L. E. 8 Ex. 249, 280. ["Where a vendee 
 purchases goods by means of such fraudulent representations as entitle the 
 vendor to disaffirm the sale and reclaim the goods as his own property, and the 
 vendor, after discovering the fraud, voluntarily brings an action on the contract 
 of sale and purchase, to recover the price, that is, as matter of law, an affirm- 
 ance of the sale, and the vendor can not thereafter set up title and claim the 
 goods on the ground of the original frand :" Dibblee v. Sheldon, 10 Blatchf. 178; 
 576 
 
EXEECISE OF OPTION. ■'''*>»' ' 508 
 
 in the prospectus if he has paid a call without protest or received 
 a dividend after he has had in his hands a report showing -to a- 
 reader of ordinary intelligence that the statements of the pros- 
 pectus we're not true (a), or if after discovering the true state of 
 things he has taken an active part in the affairs of the company (6),, 
 or has *affirmed his ownership of the shares by taking steps [50& 
 to sell them (c) ; and in general a party who voluntarily acts upon; 
 a contract which is voidable at his option, having knowledge of all 
 the facts, can not afterwards repudiate it if it turns out to his dis- 
 advantage (if). And when the right of repudiation has once been 
 waived by acting upon the contract as subsisting with knowledge 
 of facts establishing a case of fraud, the subsequent discovery of 
 further facts constituting " a new incident in the fraud " can not 
 revive it (e). The exercise of acts of ownership over property 
 acquired under the contract precludes a subsequent repudiation, 
 but not so much because it is evidence of an affirmative election as- 
 because it makes it impossible to replace the parties in their former 
 position ; a point to which we shall come presently (f). 
 
 Stouten burgh v. Konkle, 2 McCarter, 33; Bank v. Beale, 34 N. Y. 473; Lloyd 
 v. Brewster, 4 Paige, 537. 
 
 So also accepting security for the price, with knowledge of the fraud, affirms- 
 the sale: Joslin v. Co wee, 52 N. Y. 90.] 
 
 (a) Scholey v. Central By. Co. of Venezuela, 9 Eq. 266, n. 
 
 (b) Sharpley v. Louth & East Coast By. Co. (C. A.), 2 Ch. D. 663 ; [Ogilvie «. 
 Insurance Co., 22 How. 880.] 
 
 (c) Ex parte Briggs, 1 Eq. 483 ; this, however, was a case not of misstated 
 facts, out of material departure from the objects of the company, as stated in> 
 the prospectus, as to which see Lindley, 1. 109, 118. 
 
 (d) Ormes v. Beadel, 2 D. P. J. 332, 336; [Grannis v. Hooker, 31 Wis. 474; 
 Rogers v. Higgins, 57 111. 244; Dunks v. Puller, 32 kich. 242; Railroad Co. v. 
 Row, 24 "Wend. 74; Griggs v. Woodruff, 14 Ala. 9; Edwards v. Rrfberts, 7 S. & 
 M. 544; Pintard v. Martin, 1 S. & M. Ch. 126; People v. Stephens, 71 K Y. 
 527 ; Thweatt v. McLeod, 56 Ala. 375.] 
 
 (e) Campbell v. Fleming, 1 A. & E. 40. This does not apply where a new 
 and distinct cause of rescission arises : Gray v. Fowler, L. R. 8 Ex. 249 ; [Pieree 
 v. Wilson, 34 Ala,. 596, 6.0^ 
 
 "Although the party who seeks tp rescind a contract on the ground of con- 
 cealment of material fact's may h'ave J confirmed the contract after acquiring 
 knowledge of some of the facts concealed, yet if sufficient facts were Unknown 
 to him at the time of confirmation to authorize a rescission, such affirmation 
 can not effectually prevent it :" Pratt v. Philbrookj 41 Me. 132.] 
 
 (/) [Infra, p. 512-.] 
 
 36 577 
 
•509 CHAP. X< THE BIGHT OF RESCISSION. 
 
 When the acts done are of this land it seems on principle imma- 
 terial whether there is knowledge of the true state of affairs or not, 
 unless there were a continuing active .concealment or misrepresen- 
 tation practiced with a view to prevent the. party defrauded from 
 •discovering the truth and to, induce him to act upon the contract: 
 for then the affirmation itself would, be as open to repudiation as 
 the original transaction. Something like this occurs not unfre- 
 ■quently in cases of undue influence, as we shall see in the next 
 chapter. 
 
 Omission to repudiate within a reasonable time is evidence, and 
 may be conclusive evidence, of an election to affirm the contract; 
 and this is in truth the only effect of lapse of time. Still it. will 
 be more convenient to consider this point separately afterwards. 
 
 If on the other hand the party elects to rescind, he is to 
 manifest that election by distinctly communicating to the other 
 party his intention to reject the contract and claim no interest 
 under it. One way of doing this is to institute proceedings to 
 have the contract judicially set aside, and in that case the 
 judicial rescission, when obtained, relates back to the date of the 
 509] ^commencement of such proceedings (a). Or if the other 
 party is the first to sue on the contract, the rescission may be set 
 up as a defense, and this is itself a. sufficient act of rescission with- 
 out any prior declaration of an intention to rescind (6). For the 
 purposes of pleading the allegation that a contract was procured 
 by fraud has been held to import the allegation that the party on 
 •discovering it disaffirmed the contract (c). Where the rescission is 
 not declared in judicial proceedings, no further rule can be laid 
 down than that there should be " prompt repudiation and restitu- 
 
 (a) Reese Eiver Silver Mining Co,, v. Smith, L. B. 4 H. L. 73-5 ; [Thomas v. 
 Coultas, 76 II). 493.] Wb,at if proceedings were commenced in an incompetent 
 ■court? On principle there seems no reason why that also should not be effect- 
 ive as an act of rescission in pais. The proposition that in equity "the mere 
 assertion of a claim unaccompanied by any act to give effect to it" is not 
 enough (Clegg v. Edmondson, 8 D. M. G. 787, 810) refers only to substantive 
 original rights, and must not be extended to acts of repudiation. In the par- 
 ticular case it was a claim to share in certain partnership profits. 
 (6) Clpugh.s. L. & Hi W. By. Co. (Ex. Ch,), L. E. 7 Ex, 36.' 
 (e) Dawesu. Harness, L. B. 10 C. P. 166. , The earlier cases there cited, es^ 
 jpecially Deposit Life Assurance Co. v. Ayscough, 6 E. & B. 761 ; -26> L. J. Q, B, 
 29, are not wholly-consistent. , , 
 
 578 r.,'.-, ,.. 
 
EXERCISE OF OPTION. 510 
 
 •tion as far as possible" (a): The communication need not be 
 -formal, provided it is a distinct and positive rejection of the con- 
 tract, not a mere request or inquiry, which is not enough (b). Thus 
 in the case of shares in a company, a repudiation expressed by word 
 of mouth to the secretary at the company's office will do (c). But 
 it seems that if notwithstanding an express repudiation the other 
 party persists in treating the contract as in force, then judicial 
 ;Steps should be taken in order to make the rescission complete as 
 against rights of third persons which may subsequently inter- 
 vene (d): Where the original contract was made with an agent for 
 the other party, communication of the rescission to that agent is 
 /sufficient, at all events before the principal is disclosed (e). And 
 where good grounds for rescission exist, and the contract is re- 
 scinded by mutual consent on other grounds, those grounds not be- 
 ing such as to give a right of rescission, and the agent's consent 
 being in excess of his authority, *yet the rescission stands [510 
 good. There is nothing more that the party can do, and when he 
 discovers the facts On which he might have sought rescission as a 
 matter of right he is entitled to use them in support of what is 
 already done. In Wright's (/) case the prospectus of a company 
 •contained material misrepresentations. The directors had at a 
 shareholder's request, and on other grounds, professed to cancel the 
 allotment of his shares, which they bad no power to do, though 
 they had power to accept a surrender. Afterwards the company 
 was wound up, and then only was the misrepresentation made 
 known to him. But it was held- that as there was in fact a sufficient 
 reason for annulling the contract, which the directors knew at the 
 
 (a) Per Bramwell, B., Bwlch-y-Plwm Lead Mining Co. v. Baynes, L. K. 2 
 Ex. 326. • ' 
 
 (6) [Hammond v. Pennock, 61 N. Y. 145, 155] ; ; Ashley's ca., 9 Eq., 263, may 
 perhaps be supported on this ground. Otherwise the distinction of it 'from 
 Pawle's oa. (next note but one) seems untenable. 
 
 (c) McNielVs ca., 10 Eq.' 503. 
 
 (d) Kent v. Freehold Land, &c, Co., 3" Ch. 493. Sed qu. At any rate, if 
 there are several repudiating shareholders in a like position, proceedings taken 
 by one of them and treated by the company as representative will inure for the 
 benefit of all : Pawle's ca., 4 Ch. 497. J " 
 
 (ej Maynard v. Eaton, 9 Ch. 414. , , ,,. r , , 
 
 ('/) 7 Ch. 55, Cp. Clough v. L.& N. W- By. Co., supra, p. 481. .-,.:■■ 
 
 %**-' •*,.V->I- ■ 579 
 
511 CHAP. X. THE RIGHT OP RESCISSION. 
 
 time though he did not, the contract was effectually annulled, and? 
 he could not be make a contributory even as a past member (a)'. 
 
 Inasmuch as the right of rescinding a voidable contract is alter- 
 native and co-extensive with the right of .affirming it, it follows- 
 that a voidable contract may be avoided by or against the personal 
 representatives of the contracting parties (b). And further, as a. 
 contract for the sale of land is enforceable in equity by or against 
 the heirs or devisees of the parties, so it may be avoided by or- 
 against them where grounds of avoidance exist (c).> 
 
 B. The contract can not be rescinded after the position of the- 
 parties has been changed so that the former state of things can not- 
 be restored. 
 
 This may happen in various ways. The party who made the- 
 misrepresentation in the first instance may have acted on the 
 faith of the contract being valid in such a manner that a sub- 
 sequent rescission would work irreparable injury to him. And 
 here the rule applies, but with the important limitation, it seems, - 
 that he must have so acted to the knowledge of the party misled. 
 511] *and without protest from him, so that his conduct may be 
 said to be induced by the other's delay in repudiating the con- 
 tract (d). Thus where a policy of marine insurance is voidable 
 for the non-disclosure of a material fact, but the delay of the un- 
 derwriters in repudiating the insurance after they know the fact,, 
 induces the assured to believe that they do not intend to dispute it, 
 and he consequently abstains from effecting any other insurance, it 
 would probably be held that it is then too late for the underwriters 
 
 (a) But Wickens, V.-C, thought otherwise in the court below (12 Eq. 331), 
 and the correctness of the reversal is doubted by Mr. Justice Lindley (2. 1458). 
 
 (J) Including assignees- in bankruptcy : Load v. Green, 15 M. & W. 216; 15- 
 L. J. Ex. 113 ; Donaldson v, Harwell, 93 U. S. 631. 
 
 (c) Gresley v. Mousley, 4 D. G. & J. 78; and see cases cited in next chapter. 
 ml fin., and Charter ■». Trevelyan, 11 CI. & F. 714, where the parties on both 
 sides were ultimately representatives, and as to the defendants through niore 
 than one succession. 
 
 (d) i" Where a party seeking to rescind- a contract, on the ground of fraud, 
 acts without unnecessary delay, and restores or offers to restore that which he- 
 has received, it is no defense that the wrong-doer has, by his own act, made a 
 full restoration impossible on his part, or has entered into obligations to others- 
 He can not prevent a restoration, as far as is within his power, by showing that 
 he has himself done acts which prevent his being restored to his original posi- 
 tion ;" Hammond v. Pennock, 61 N. T. 145 ; Hopkins v. Snedaker, 71 111. 449.^ 
 
 580 
 
Sf WHEKE RESCISSION INADMISSIBLE. 512 
 
 -*o rescind (a). Or the interest' taken under the contract by the 
 party misled may have been so dealt with that he can not give 
 back the same thing he received. On this principle a shareholder 
 
 -can not repudiate his shares if the character and constitution of the 
 ■company have in the meantime been altered. This was the case 
 in Clarke v. Dickson (£>), where the plaintiff had taken shares in a 
 
 -cost-book mining company. The company was afterwards regis- 
 tered under the Joint Stock Companies Act then in force, appa- 
 rently for the sole purpose of being wound up. In the course of 
 the winding up the plaintiff discovered that fraudulent misrepre- 
 sentations had been made by the directors. But it was by this 
 time impossible for him to return what he had got; for instead of 
 
 shares in a going concern on the cost-book principle he had shares' 
 in a limited liability company which was being wound up (c)It. 
 was held that it was too late to repudiate the shares, and his only 
 
 ..remedy was by an action of deceit against the directors personally 
 responsible for the false statements' (d). As Compton, J., put it, 
 '-You can not both eat your cake and return your cake " (e). A 
 similar case on this point is Western Bank of Scotland v. Addie (/). 
 There the company was an unincorporated joint stock banking 
 
 -company when the respondent took his shares in it. As in Clarke 
 
 ,v. Dickson, it was afterwards incorporated and registered for the 
 purpose of a voluntary winding-up. It was held as a probable 
 ^opinion by Lord Chelmsford, and more positively by Lord [512 
 
 ■Cranworth, that the change in the condition of the company and 
 •of its shares was such as to make restitution impossible, and there- 
 fore the contract could not be rescinded (g). The case is simpler 
 
 'where the party misled has himself chosen to deal with the subject- 
 
 (a) Per Cur., Morrison v. Universal Marine Insurance Co. (Ex. Ch.) L. B. 8 
 Ex. at p. 205; cp. Clough v. L. & N. "W. By. Co. (Ex. Ch.) h. B. 7 Ex. at p. 35. 
 
 (b) E. B. &. E. 148 ; 27 L. J. Q. B. 223. 
 
 (c) The fact of the winding-up having begun before the repudiation of the 
 -shares is of itself decisive according to the later cases under the present Com- 
 panies Act: but here the point was hardly made. 
 
 (d} Which course was accordingly taken with success : Clarke v. Dickson, 6 
 • C. B. N. S. 453 ; 28 L. J. C. P. 225. 
 
 (e) E. B. & E. at p. 152. (/) L. B. 1 Sc. & D. 145. 
 
 (</) It would seem,- but it does not clearly appear, that in this case also the 
 -misrepresentations were not discovered till after the commencement of the 
 -winding-up. 
 
 581 
 
513 CHAP. X. THE EIGHT OF RESCISSION. 
 
 matter of the contract, by exercising acts of ownership Or the Iike r 
 in such a manner as to make restitution impossible; and it is of 
 course still plainer if he goes on doing this with knowledge of all 
 the facts ; if the lessee of mines, for example, goes on working out. 
 the mines after he has full information of the circumstances on 
 which he relies as entitling him to set aside the lease (a). So a 
 settlement of partnership accounts can not be disputed by one of 
 the parties if in the meantime the concern has been completely 
 wound up and he has taken possession of and sold the partnership) 
 assets made over to him under the arrangement (6) ; and an ar- 
 rangement between a company and one of its directors which has 
 been acted upon by the company so as to change the director's 
 position can not afterwards be repudiated by the company (c). So- 
 a purchaser can not after taking possession maintain' an action to- 
 recover back his deposit (d). 
 
 The right to recover back money paid under an agreement on 
 the ground of mistake, failure of consideration ( or default of the 
 other party is also subject to the same rule (e). Thus a lessee 
 who has entered into possession can not recover back the premium 
 paid by him on the ground of the lessor's default in executing the 
 lease and doing repairs' to be done by him under the agree- 
 ment (/) ; nor can a party recover back an excessive payment 
 after his own dealings have made it impossible to ascertain what- 
 was really due (g). 
 
 C. The contract can not be rescinded after third persons have 
 acquired rights under it for value. 
 
 513] *Tbe present rule is altogether, as the last one is to some 
 extent, a corollary from the main principle that a contract induced- 
 by fraud or misrepresentation is as such not void but only void- 
 
 (a) Vigers v. Pike, 8 CI. & F. 562, 650; [Hough v. Richardson, 3 Story, 659, 
 699; Shaeffer v. Sleade, 7 Blackf. 178; McCulloeh v. Scott, 13 B. Mon. 172;. 
 MeOrillis v. Carlton, 37 Vt. 139.] 
 
 (6) Skilbeck v. Hilton, 2 Eq. 587. 
 
 (c) Sheffield Nickel Co. v. Unwin, 2 Q. B. D. 214. 
 
 (d) Blackburn u. Smith, 2 Ex. 783; 18 L. J. Ex. 187; hut it was also held 
 that apart from this the objection came too late under the conditions of sale 
 in the particular case. 
 
 (e) [Reed v. McGrew, 5- Ohio, 375; Chance v. Board of Commissioners, 5- 
 Blackf. 441 ; Fay v. Oliver, 20 Vt. 118.] 
 
 (/") Hunt v. Silk, 6 East, 449. 
 (g) Freeman v. Jeffries, L. B. 4 Ex. 189, 197. 
 582 
 
WHERE RESCISSION INADMISSIBLE. 515 
 
 able. The result is that when third persons have acquired rights 
 under the transaction in good faith and for value, those rights are' 
 indefeasible. ■►' 
 
 Thus when a sale of goods is procured by fraud, the property in 
 the goods is transferred by the contract (a), subject as between the 
 seller and the buyer to be revested by the seller exercising his option 
 to rescind when he discovers the fraud. A purchaser in good faith 
 from the fraudulent buyer acquires an indefeasible title (6). And 
 a person who takes with notice of the fraud is a lawful possessor :is 
 against third persons; and as such is entitled to sue them for all in- 
 juries to the property, unless, and until the party defrauded exer- 
 cises his right of rescission (c). 
 
 The same rule holds good as to possession or other partial inter- 
 ests in property. The following curious and somewhat complex 
 case. was decided some years ago by the Judicial Committee. A. sells- 
 goods to B., but resumes the possession by arrangemenlwith B. as a 
 
 ;(«) -Load v. Green, 15. M. & W- 216.; 15, L. J. Ex. 113; .where it was held 
 that a fraudulent buyer becoming bankrupt had not thegoods in his order and 
 .disposition with the consent of the true owner; for the vendors became the- 
 true owners only when they elected to rescind and demanded the goods from 
 the assignees : [Arendale v. Morgan, 5 Sneed, 703, 714; Hoffman u. Noble, 6 
 Met. G8, 73; Kowley v. Bigelow, 12 Pick. 307; Barnard v. Campbell, 58 N. Y- 
 .73, 75 ;-. William's v. Given, 6 Gratt. 268; Whitman v. Merrill, 125 Mass. 127; 
 Steamship Co. v. Burckhardt, 31 Gratt. 664.] 
 
 (6) White v. Garden, 10 C. B. 919 ; 20 L. J. C. P. 167; Stevenson V - Newn T 
 ham (Ex. Ch.), 13 C. B. 285, 303 ; 22 L. J. C. P. 110, 115 ; [Williamson v. Bus- 
 sell, 39 Conn. 406 ; Kern v. Thurber, 57 Ga. 172; Mears v. Waples, 3 Houst. 
 581'; Titcomb v. Wood, 38 Me. 561 ; Kailroad Co. v. Kerr, 49 111. 458; Sinclair 
 ■o. Healy, 40 Pa. St. 417; Padden v. Taylor, 44 N. Y. 371 ; Moyce«. Newington', 
 4 Q. B. D. 32; Attenborough v. St. Katharine's Dock Co., 3 C. P. D. 450; and 
 cases cited in last note. 
 
 An attaching creditor of the fraudulent buyer can not hold the goods as 
 against the seller exercising his right of rescission • Sebweizer v. Tracy, 76 111. 
 345; Thompson v. Bose, 16 'Conn. 71'; Landaueru. Cochran, 54 Ga. 533 ; Hawes 
 v. Dingley, 17 Me. 341 ; Bowman v. Harding, 56 Me. 557; Wiggins v. Day, 9- 
 Gray, 97 ; Fields Stearns, 42 Vt. 106: ' 
 
 ' It has been held that one who receives property from a fraudulent buyer in- 
 payment of a precedent debt is not a bona fide purchaser for value, and can not 
 hold the property as against. the defrauded seller: Stevens -v. Brennan, 79 N. 
 Y 254; and see Barnard v. Campbell, 58 N. Y. 73; Devoe v. Brandt, 53 N. Y. 
 462; cp. Rodgers v. Comptoir d'Escomte, L. K. 2 P.O. 393; contra, Butters, v. 
 Haughwout, 42 111. 18; Shufeldt v. Pease, 16 Wis, 659; cp. Lee v. Kimball, 45 
 Me. 172; Leask v. Scott, 2 Q. B. D. 376.] 
 
 (c) Stevenson v. Newnham, see last note. 
 
 V ' 583 
 
514 CHAP. X. THE EIGHT OF RESCISSION. 
 
 security for tbe price. Afterwards" B. induces A, to re-deliver pos~ 
 session of the goods to him by a fraudulent misrepresentation, and. 
 thereupon pledges the goods to C, who advances money upon them 
 in good faith and in ignorance of the fraud. This pledge is valid, 
 iiad C. is entitled, to the possession of the goods as against A. (a).' 
 
 It must be carefully observed that a fraudulent possessor can not 
 give a better title than he has himself, even to an innocent pur- 
 chaser, if the possession has not been obtained under .a contract with 
 the true owner, bat by mere false pretenses as to some matter of 
 fill] fact concerning the true owner's contract with a *third per- 
 son. To put a simple case, A. sells goods to B. and desires to B. 
 send for them. C. obtains the goods from A. by falsely -represent- 
 ing himself as B.'s servant: now C. acquires neither property nor 
 lawful possession, and can not make any sale or pledge of the goods 
 -which will be valid against A., though the person advancing his 
 money have no notice of the fraud. The result is the same if A. 
 means to sell goods to B. & Co., and C. gets goods from A. by falsely 
 representing himself as a member of the firm and authorized to 
 act for them (&), or if B., a person of no credit, gets goods from A. 
 by trading under a name and address closely resembling those of 
 C. who is known to A. as a respectable trader (e). It is also the 
 flame in the less simple case of a third person obtaining delivery 
 of the goods by falsely representing himself as a sub-purchaser; 
 for here there is no contract between him and the seller which the 
 seller can affirm or disaffirm ; what the seller does is'to act on the 
 mistaken notion that the property is already his by transfer from 
 the original buyer. This was in effect the decision of the Excequer 
 Chamber in Kihgsford v. Merry (d), though the case was a little 
 
 (a) Pease v. Gloahee, L. R. 1 P. C. 219. The dealings were in fact with the 
 bill of lading ; but as this completely represented the goods for the purposes of 
 the case, the statement in the text is simplified in order to bring o'ut the general 
 principle more clearly. [See also Babcock v. Lawsbn, 4 Q. B. D. 394; S. C, on 
 appeal, 5 Q. B. D. 284.] 
 
 (6) Hardman v. Booth, lfl.&C. 803 ;. 32 L. J. Ex. 105 ; fiollins v. Fowler, 
 X. II. 7 H. L. 757, 795; [see Moody v. Blake, 117 Mass. 23; Barkers. Dinsmore, 
 72 Pa. St. 427; Decan v. Shipper, 35 Pa. St. 239; Dean v. Yates, 22 O. S. 388.], 
 
 (c) Oundy v. Lindsay 8 App. Ga. 459, affirming s. c. nom. Lindsay v. Cundy, 
 2 Q. B: D. 96. 
 
 . (d) 1 H. & N. 503; 26 L. J. Ex. 83 (see per Erie, J., at p. 88), revg. s. c. in 
 court below ; 11 Ex! 577 ; 25 L. J. Ex. 166. 
 584 
 
.«0i"-; . TIME OF RESCISSION.:-: t f,^ f 51 j> 
 
 'Complicated by the special consideration of the effect of, delivery 
 ■orders or warrants as " indicia of title." - ;,»,... 
 ■<\ The decision of the House of Lords in Oakes v.. Turquand («), 
 which settled that a shareholder in a company can not requdi it& 
 h'is shares after the commencement of the winding-up proceeded to 
 .a considerable extent upon the language of the Companies Act, 
 1862, in the sections defining who shall be contributories. But- the 
 broad principles of the decision, or if we. prefer to say so,- of tbo 
 Act as interpreted by it are these. The rights of the company's 
 creditors are fixed at the date of the winding-up and are not to be 
 .afterwards varied. They are entitled to look for the payment'iu 
 the first instance, to all persons who are -actually members of the 
 •company at the date of the winding-up. And this class includes 
 shareholders who were entitled as against the company to repudi- 
 ate their shares on the ground of fraud but have not yet done so. 
 For their obligations under their ^contracts with the com- [513 
 pany, including the duty to contribute in the winding-up, were 
 -valid until rescinded, and the creditors in the winding-up must be 
 -considered as being, to the extent of their claims, purchasers for 
 value of the company's rights against its members (6). They are 
 not entitled to any different or greater rights : no shareholder can 
 be called upon to do more than perform his contract with thecom- 
 -pany (c). 
 
 (a) L. B. 2 H. L. 325 ; [and see Houldsworth v. Bank, 5 App. Ca. 317 ; Ten- 
 aient v. Bank, 4 App. Ca. 615.] 
 
 (J) [As to the right to rescind after, the insolvency of the corporation and 
 the appointment of a receiver or assignee in bankruptcy, see 1 Am. L. Rev. 
 N. S. 208, sqq. ; Chubb v. Upton, 95 U. S..665, 667; Michener v. Payson, 13 N. 
 B. E. 49; Euggles v. Brock, 6 Hun. 164; Earrar v. Walker, 3 Dill. 506, n.; 
 Upton v. Englehart, 3 Dill. 496.] . , 
 
 (c) Waterhouse v. Jamieson, L. E. 2 Sc. & D. 29; [Foreman v. Bigelow, 7 C. 
 L. J. 430; Burkinshaw v. Nicholls, 3 App. Ca. 1004.] In Hall v. Old Talargoch 
 
 i Lead Mining Co., 3 Ch; D. 749, an action for rescission and indemnity com- 
 menced by a shareholder after a resolution for wind.ing r up but in ignorance of 
 
 :it was allowed to proceed. Here, however, relief was claimed against the di- 
 rectors personally as well as the company. ["A person induced by the fraud of 
 the agents of a joint stock cempanv to become a partner in that company can 
 Viiig no action ..for damages against the company whilst he remains in it; his 
 i .nly remedy is retittuti-i in integrum, arid rescission of the contract; and 'if that 
 becomes impossible — by the winding-up of the company or by any other irioans 
 
 — 'his 'action for damages.is irrelevant andean riot be maintained;" Houldsworth 
 
 *. Bank, 5 App. Ca. 317.] 
 
 ■■■-■• r. ■■ „-.>vo,i ,, 585 
 
516 CHAP. X. THE EIGHT OP RESCISSION. 
 
 On the other hand persons who hare taken any gratuitous bene- 
 fit under a fraudulent transaction, though themselves ignorant of 
 the fraud, are in no better position than the original coutriver of it. 
 Thus where a creditorwas induced to give a release to a surety by a 
 fraud practiced on him by the principal debtor, of which the surety 
 Wiis ignorant, and the surety gave no consideration for Ibeivletiso, 
 it was held that this release might be disaffirmed, by the creditor 
 on discovering the fraud. But third persons who on the faith of 
 the release being valid had advanced money to the surety to meet 
 other liabilities would be entitled to assert a paramount claim (a). 
 
 D. The contract must be rescinded within a reasonable time, 
 th:it is, before the lapse of a time after the true state of things. is- 
 known (6), so long that under the circumstances of the particular 
 case the other party may fairly infer that the right of rescission; is 
 waived. 
 
 It is believed that the statement v of the rule in some such form 
 as this will reconcile the substance and language .of all the lead- 
 ing authorities. On the one hand it is often said that the election 
 niust be made within a reasonable time (c), while on the other .band- 
 it has several times been explained that lapse of time as such ha& 
 110 positive effect of its own (d). The Court is specially cautious 
 516] *in entertaining charges of fraud or misrepresentation 
 brought forward after a long interval of time ; it will anxiously 
 weigh the circumstances, and consider what evidence may have 
 been lost in consequence of the time that has elapsed (e). But 
 
 («) Seholefield v. Templer, Johns. 155, 105; 4 De G. & J. 429. The Court 
 below endeavored to provide for the payment of the third persons in question, 
 Johns. 171, but the Court of Appeal varied the decree by making it simply 
 ■without prejudice to their rights ; 4 De G. & J> 435; [Gordpn v. McCarty, 3 
 "Wharf. 407; Mendenball v. Treadway, 44 Ind; 131 ] 
 
 (6) Perhaps we. might add " or after it might have been known with reasonable- 
 diligence:" but authority, so far as it goes, and the analogy of other branches 
 of the law where the same question arises, are in favor of considering means of 
 knowledge as only evidence of either actual knowledge or a. determination to- 
 ■waive all inquiry. 
 
 (c) [Wingate v. King, 23 Me. 35 ; Key v. Jennings, 66 Mo. 356, 370.] 
 .(d) [Bradshaw v. Yates, 67 Mo,. 221. 'J Delay in exercising the power of re 
 scission Js evidence of an election to treat the sale as valid, of more or less 
 weight, according to the circumstances of the case, but of itself does not oper- 
 ate as an estoppel, unless, in the meantime, superior rights of third ^ersoiis- 
 Lave intervened;"' Williams v. llailroad Co., 29 1ST. J'. Eq. 311, 320.] 
 
 (e) Cp, Bright „. Legerton, 2 D. P. J. 606, 617; [Provost v. Gratis, 6 Wheat- 
 586 
 
ACQUIESCENCE AND LAPSE OV TIME. 51b- 
 
 time alone is no bar to the right of rescinding a voidable transac- 
 tion ; and the House of Lords in one case set aside a purchase of 
 a principal's estate by bis agent in another name after the lapse of 
 more than half a century, the facts having remained unknown to- 
 the principal and his representatives for thirty -seven years (a). In- 
 a later case the Lord Justice Turner stated expressly that " the 
 two propositions of a bar by length of time and by acquiescence 
 are not distinct propositions." Length of time is evidence of ac- 
 quiescence, but only if there is knowledge of the facts, for a man 
 can not be said to have acquiesced, in what he did not know (&). 
 Lord Campbell slightly qualified this by adding that although it. 
 is for the party relying on acquiescence to prove the facts from 
 which consent is to be be inferred, " it is easy to conceive cases in 
 which, from great lapse of time, such facts might and ought to be- 
 presumed " (c). 
 
 The rule has lately been laid down and acted upon by the Ju- 
 dicial Committee in this form : " In order that the remedy 
 should be lost by laches or delay, it is, if not universally, at all 
 events ordinarily . . . necessary that- there should be suffi- 
 cient knowledge of the facts constituting the title to relief" (d). 
 
 Acquiescence need not be manifested by any positive act ; the 
 question is whether there is sufficient evidence either from lapse of 
 time or from other circumstances of li a fixed, deliberate, and un- 
 biased determination that the transaction should not be im- 
 peached " (e). In estimating the weight to be given to length 
 of time as evidence of acquiescence the nature of the property 
 
 48t, 498; Kribbs v. Downing, 25 Pa. St. 399, 404; Campau v. Van Dyke, 1.5- 
 Mioh. 371.] . 
 ■(b) Charter v. Trevelyan, 11 CI, & F. 714, 7.40. 
 
 (b) Life Association of Scotland v. Siddall, 3 D. F.J. 58, 72, 74: on the point 
 that there can not be acquiescence without knowledge, cp. Lloyd v. Att- 
 wood, 3 De Q. & J. 614, 650; per Alderson, B., Load v. Green, 15 M. & W. at 
 p. 217: "A man can not permit who does not know that he. haaa right to re- 
 fuse;" and per Jessel, M. K., 1 Ch. D. 528; [Veazie v. Williams., 8 How. 134, 
 158; Bank *. Brown, 5 S. & R. 226, 234; Baker v. Lever,' 67 N. Y. 304.] 
 
 (c) 3 D. F. J. at p. 77. The case was one not of rescinding a contract but of 
 a breach of 'trust: but-the principles are the same. 
 
 (d) Lindsay Petroleum Co. v. Hurd, L. it 5 P. C. 221, 241. ' 
 
 (e) Per Turner, L. J., Wright a. Vanderplank, "8 D. M..G. 133, 147. The 
 epithets, however, are more specially appropriate to the particular grounds of" 
 rescission (undue influencej then before the Court. 
 
 5.87 '•'■•'• • 
 
.517 CHAP. X. THE RIGHT OF RESCISSION 
 
 -617] * concerned is material (a). And other special circumstances 
 may prevent lapse, of time even after every thing is known from 
 being evidence of acquiescence ; as when nothing is done for some 
 years because the other party's affairs are in such a condition -that 
 proceedings against him. would be fruitless (6). 
 
 If a party entitled to avoid a transaction has precluded himself 
 by his own act or acquiescence from disputing it in his lifetime, 
 his representatives can not come forward to dispute it after; 
 wards (c). 
 
 It is said that holders of shares in companies are under a special 
 ^obligation of diligence as to making their election, but the dicta 
 relate chiefly if not wholly to objections apparent on the face of 
 jthe memorandum or articles of association. With the contents of 
 •these a shareholder is bound to make himself acquainted, and must 
 be deemed to become acquainted, when his shares are allotted (d). 
 But objections which can be taken upon these must proceed on the 
 ground, not of fraud or misrepresentation as such, but of the un- 
 dertaking in which shares are allotted being substantially a differ- 
 ent thing from that which the prospectus described, and in which 
 the applicant offered to take shares. Nor are we aware of any 
 -case in which the rule has been applied to a repudiation of shares 
 declared before a winding up and on the ground of fraud or misrep- 
 resentation not apparent on the articles. Still it seems quite rea- 
 sonable to hold that in the case of a shareholder's contract lapse 
 of time without repudiation is of greater importance as evidence 
 of assent than in most other cases (e). 
 
 Thus much of the exposition of the rule in equity. The same 
 
 general principle has recently been laid down in the Exchequer 
 
 Chamber. " We think the party defrauded may keep the question 
 
 open so long as he does nothing to affirm the contract. ... In 
 
 . such cases the question is, has the person on whom the fraud was 
 
 (a) 8 D. M. G. at p. 150; [Grymes v. Sanders, 93 U. S. 55, 62; Cox v. Mont- 
 gomery, 36 111. 396.] 
 
 (b) Scholefleld v. Templer, 4 De G. & J. 429. 
 
 (c) Skottowe v. Williams, 3 D. F. J. 535, 541. 
 
 (a!) Central Ry. Co. of "Venezuela v. Kisch, L. R. 2 H. L. at p. 125 ; Oakes v. 
 Tuvquand, lb. at p. 352;' and see Ch. VIII., p. 418, above. ["That the de- 
 fendant did not read the charter and by-laws, if such were the fact, is his own 
 ffault; " Upton v. Tribilcock, 91 IT. S. 45., 50.] 
 
 (c) [Upton v. Tribilcock, 91 U. S, 45, 55; Upton v. Engleharib, 3 Dili. 496, 
 SOI -2.] 
 
 588 
 
ACQUIESCENCE AND LAPSE OF TIME. 51 8i 
 
 practiced, having notice of the fraud, elected not to avoid the con- 
 tract? or has he elected to avoid it ? or has he made no *clec- [5i8 
 tion? We think that so long as he has made no election he re- 
 tains the right to determine it either way, subject to this, that if in. 
 the interval whilst he is deliberating an innocent third, party bas- 
 aequired an interest in the property, or if in consequence of his de- 
 lay the position even of the wrongdoer is affected, it will preclude 
 him from exercising his right to rescind: And lapse of time 
 without rescinding will furnish evidence that he has determined to- 
 affirm the contract, and when the lapse of time is great it probably 
 wonld'in practice be treated as conclusive evidence to show that he 
 has so determined " (a). 
 
 The French law treats the right of having a contract judicially 
 set aside' for fraud, etc., as a substantive right of action, and limits a 
 fixed period of ten years, running from the discovery of the truth,. 
 within which it must be exercised (b). 
 
 One or two points remain to be mentioned, which we have re- 
 served to the last as being matter of procedure, but which depend 
 upon general principles. Courts of justice are anxious to discover 
 and discourage fraud in every shape, but they are no less anxious 
 to discourage and rebuke loose or unfounded charges of fraud and 
 personal misconduct. The facts relied on as establishing a case of 
 fraud must be distinctly alleged and proved (c). Where such 
 charges are made and not proved, this will not prevent the party 
 making them from having any relief to which he may Otherwise- 
 fa) Per Cur., Clough v. L. & N. W. Ey. Co., L. B. 7 Ex. at p. 34, repeated 
 in Morrison v. Universal Marine Insurance Co., L. B. 8 Ex. at p. 203; [adopted 
 in "Williamson v. Eailroad Co., 28 N. J. Eq. 277, 293; S. C. on appeal, 29 N. J. 
 Eq. 311, 320,]. 
 
 (b) Code Civ. 1304. [The codes of procedure adopted in many of the United. 
 States provide a fixed time within which an action for relief on the ground of 
 fraud must be brought, but that the cause of action in such case shall not be- 
 deemed to have accrued until the discovery of the fraud ; see e.g., E. S. of Ohioi 
 
 \ 4982.] 
 
 (c) In equity pleading a charge of fraud in general terms would not support, 
 a- bill on demurrer : Gilbert v. Lewis, 1 D. J. S. at p. 49, per Lord Westbury ;, 
 [Small v. Boudinot, 1 Stockt. Ch. 381, 391 ; Bryan v. Spruill, 4 Jones Eq. 27. 
 
 Under the reformed procedure, "pleadings must state facts and not legal 
 conclusions, and fraud is never sufficiently pleaded except by the statement of 
 the facts upon which the charge is based :'' Ockendon v. Barnes, 43 la. 615, 619 - r 
 Kent v. Snyder, 30 Cal. 666 ; Capuro v. Insurance Co., 39 Cal. 123 ; Keller v- 
 Johnson, 11 Ind. 337 ; Joest v. Williams, 42 Ind. 565, 568.] 
 
 589 
 
519 CHAP. X. THE RIGHT OF RESCISSION. 
 
 .appear to be entitled, but he must pay the costs occasioned by the 
 unfounded charges (a). And in one recent case, where the plain- 
 tiff made voluminous and elaborate charges of fraud and conspiracy 
 which proved to be unfounded, the Court of Appeal not only made 
 bim pay the costs of that part of the case, but refused to allow him. 
 the costs even of the part on which he succeeded. It was held 
 that he had so mixed up unfounded and reckless aspersions upon 
 519] character *with the rest of the suit as to forfeit his title 
 to the costs which he otherwise would have been entitled to re- 
 ceive (6). 
 
 The special jurisdietioia of courts of equity to order the cancel- 
 lation of an instrument obtained by fraud or misrepresentation is 
 not affected by the probability or practical certainty that the 
 plaintiff in equity would have a good defense to an action, on the 
 instrument, nor is it the less to be exercised even if the instrument. 
 is already in his possession. He is entitled not only not to have 
 the contract enforced against him, but to have it judicially an- 
 nulled (c). 
 
 (a) Hilliard v. Eiffe, L. E. 7 H. L. 39, 51, 52; London Chartered Bank of 
 Australia v. Lempriere, L. R. 4 P. C. at p. 597 ; Clinch v. Financial Corpora- 
 tion, 5 Eq. at p. 483; per Lord Cairns, Thomson v. Eastwood, 2 App. Ca. at 
 p. 243. 
 
 (6) Parker v. McKenna, 10 Ch. 96, 123, 125. 
 
 (c) London and Provincial Insurance Co. v. Seymour, 17 Eq. 85; [Insurance 
 Co. v. Hutchinson, 21 N. J. Eq. 107, 117; McHenry v. Hazard, 45 N. Y. 580] ; 
 and see Hoare v. Bremridge, 8 Ch. 22 ; there explained and distinguished. [Cp. 
 Insurance Co. o. Bailey, 13 Wall. 616.]' Therefore a defendant sued on an in- 
 strument which he alleges to be voidable, may properly add to his defense a 
 counterclaim for the cancellation of the instrument^ and, if the action is not in 
 the Chancery Division, a transfer of it to the Chancery Division for that pur- 
 pose. 
 
 590 
 
DURESS AT COMMON LAW. 520, 521 
 
 ■■'■'•*' ' " '" '■ • '■ •list:;:-.; 
 
 ♦CHAPTER XI. [520 
 
 DURESS AND UNDUE INFLUENCE. 
 
 . If the consent of one party to a contract is obtained by the other 
 under such circumstances that the consent is not free, the contract 
 is voidable at the option of the party whose consent is so obtained. 
 It is quite clear that it is not merely void (a). The transaction 
 might indeed be void if the party were under actual physical con- 
 straint, as if his hand were forcibly guided to sitrn his name; or 
 perhaps if he were so prostrated, by fear as not to know what he 
 was doing (b) ; but this would be not because his consent was not 
 free, but because there was no consent at all. 
 
 What then are the circumstancee which are held by English 
 courts to exclude freedom of consent? The. treatment of this 
 question has at common law been singularly narrow and in equity 
 singularly comprehensive. 
 
 1. Duress at Common Law. 
 At common law the coercion which will be a sufficient cause for 
 avoiding a contract may consist in duress or menace ; that is, either 
 in actual compulsion or in the threat of it. In modern books the 
 term duress is used to include both species. It is said that there 
 must be some threatening of life or member, or of imprisonment, 
 or some imprisonment or beating itself. Threatening to destroy or 
 detain, or actually detaining property, -i'does not amount to [t>21 
 duress (c) ; and this applies to agreements not under seal as well as 
 .to deeds (d). " It must be a threatening, beating, or imprisonment 
 
 (a) Co. 2 Inst. 482, and 2d resolution in Whelpdale's ca., 5 Rep. 119.; [Lewis 
 v. Bannister, 16 Gray, 500; Veach v. Thompson, 15 la. 380.] 
 
 '(b) Savigny, Syst. 3. 109. But 'the analogy of Matthews u. Baxter, L. K. 8 
 Ex. 132, is against this. ... ■-•'-, 
 
 (c) Shepp. Touch: 61. 
 
 (d) Atleeo, Backhouse, 3 M. & W. 633; Skeate v. Beale, 11 A. & E. 983;' 
 |Lehman't>. Shackelford, 00 Ala. 437; Hazlerigg v. Donaldson. 2 Met. (Ky.) 
 445. •''' ' '■■ * '• '■' ■'--' , l ' 
 
 But the modern rule, as generally prevailing in this country is, that threats 
 
 ..•;.-.> ;■ - '■ "**"■' '■'■ *591 ' ri 
 
321 ■'• . CHAP. XI. ' DURESS. AND UNDUE IHELUENCE. 
 
 of the party himself that doth make the deed, or his wife" or (it 
 seems) parent or child (a). And a threat of imprisonment is not 
 duress unless the imprisonment would be unlawful (b). This is il- 
 lustrated by two rather curious modern cases in both of which the 
 party's consent was determined by the- fear of confinement in a lu- 
 natic asylum. In Cumming v. Ince (c) the plaintiff had been taken 
 to a lunatic asylum and dejrrived of the title deeds of certain prop- 
 erty claimed by her. Proceedings were commenced under a com- 
 mission of lunacy, but stayed on the terms of an arrangement signed 
 by counsel oh both sides, under which the deeds Were to be depos- 
 ited in certain. custody. The plaintiff afterwards repudiated this- 
 arrangement and brought detinue for the deeds. On an issue di- 
 rected to try the right to the possession of the deeds as between 
 herself and the other parties the Court held that in any view the 
 defendants were wrong. For if their own proceedings under the- 
 
 ening to destroy or detain, or actually detaining property may amount to- du~ 
 re?s; Spaids v. Barrett, 57 111. 289; United States v. Huckabee, 16 Wall. 414, 
 482; Sasportas v. Jennings, 1 Bay. 470; French v. Shoemaker, 14 Wall. 314,332;, 
 Collins -v. Westbury, 2 Bay, 211 ; Walker ■». Parker, 5 Coldw. 476 ; Foshay v. 
 Ferguson, 5 Hill. 154, 158.] 
 
 (a) Shepp. Touch. 61; Ko. Ab. 1. 687, pi. 5; Bac. Ab. Duress (B); [Kobin- 
 son v. Gould, 11 Cush. 55 ; Spalding v. Crawford, 27 Tex. 155 ; McClintick «_ 
 Cummins, 3 McLean, 158; Plummer v. The People, 16 111. 358; Brooks v. Ber- 
 ryhill, 20 Ind. 97; Owens v. Mynatt, 1 Heisk. 675. 
 
 The threat made by a husband, through the procurement of one of the- 
 payees of a note executed by him, that unless his wife would sign it, he would; 
 poison himself, whereby she is induced to sign it, does not amount to duress r 
 since " the maker and object of the threats were the same ; " Wright v. liem- 
 mington, 41 N. J. L. 48 ; cp. Tapley v. Tapley, 10 Minn. 448.] 
 
 (i) [Alexander v. Pierce, 10 N. H. 494: Landa v. Obert, 45 Tex. 539, 548,- 
 jEddy v. Herrin, 17 Me. 338. 
 
 Lawful imprisonment or detention of the person does not itself constitute- 
 duress; lb.; Smith v. Atwobd, 14 Ga. 402; Taylor v. Cottrell, 16 111. 93," 
 Neally v. Greenough, 25 N. H. 325; Plant v. Gunn, 2 Woods, 372; but, "where ' 
 there is an arrest for an improper purpose without just cause, or where there is 
 an arrest for a just cause but without lawful authority, or for a just cause but 1 
 for an unlawful purpose, . . . in either- of those events the party arrested, 
 if he was thereby induced to enter into a contract, may avoid it as one pro- 
 cured by duress; " Baker v. Morton, 12 Wall 150, 158; Breck v. Blanchard, 22 
 N. H. 303,.,310; Bane v. Detrick, 52 111. 19; Bichardson v. Duncan, 3 N. H. 
 508; Severance .v. Kimball, 8 N. H. 386; Watkins v. Baird, 6 Mass. 506;. 
 Hackett v. King, 6 Allen, 58; Phelps v. Zuschlag, 34 Tex. 371 ; Seiber v. Price,, 
 26, Mich.. 518.] ,., , ,- ,, 
 
 (c) 11 Q. B. 112; 17 L. J. Q. B. 105. 
 592 
 
DURESS AT COMMON LAW. 522 
 
 commission were justified, they could not say the plaintiff was com- 
 petent to bind herself, and if not, the agreement was obtained by 
 the fear of a merely unlawful imprisonment and therefore voidable 
 on the. ground of duress. And it made no difference that the 
 plaintiff's counsel was party to the arrangement. His assent must 
 be considered as enforced by'the same duress : for as her agent he 
 might well have feared for her the same evils that she feared lor 
 herself. In Biffin u.-Bignell (a), on the other hand, the defendant 
 was sued for necessaries supplied to his wife. She had been in a, 
 lunatic asylum under treatment for delirium tremens, and on her 
 discharge the husband promised her 12s. a week to live apart 
 from him, adding that if she would not he would send her to 
 another asylum, The wife was according living apart from the 
 husband under this agreement. It was held that her consent 
 to it was not obtained by duress, for under these circumstances- 
 "the threat, if any, was not of any thing contrary to law, at- 
 least not so to be understood:" consequently the presumption 
 *of authority to pledge the husband's credit was effectually [522' 
 excluded, and the plaintiff could not recover (£>). 
 
 The narrowness of the common law doctrines above stated is- 
 considerably mitigated in practice, for when money has been paid 
 under circumstances of practical compulsion, though not amount- 
 ing to duress, it can generally be recovered back. This is so when 
 the payment is made to obtain the possession of propeity wrong- 
 fully detained (c) ; and the property need not be goods for which 
 the owner has an immediate pressing necessity, nor need the claim 
 of the party detaining them be manifestly groundless, to make the 
 payment for this purpose involuntary in contemplation of law (d)~ 
 
 (a) 7 H. & N. 877 ; 31 L. J. Ex. 189. 
 
 (6) Q«. whether in any case he could have recovered without showing that 
 the wife had repudiated the arrangement. 
 
 (c) Wakefield v. Newbon, 6 Q. B. 276, 280; 13 L. J. Q. B. 258; [Elliott v. 
 Swartwout, 10 Pet. 137; Maxwell v. Griswold, 10 How. 242; Railroad Co. ■». 
 Pattison, 41 Ind. 312; Clinton v. Strong, 9 Johns. 370; Briggs v. Boyd, 56 N. 
 T. 289; Chase v. Dwinal, 7 Me. 134; Tutt v. Ide, 3 Blatehf. 249; Beckwith v. 
 Krisbie, 32 Vt. 559; Cobb v. Charter, 32 Conn. 358; Alston v. Durant, 2 
 Mrobh. 257; Harmony v. Bingham, 12 N. Y. 99; Baldwin v. Liverpool & G- 
 W. S. S. Co., 74 N. Y. 125; Chandler v. Sanger, 114 Mass. 364. 
 
 As to the right to recover money paid for taxes illegally levied, see Cooley or* 
 Taxation, 568 sqq. ; Railroad Co. v. Commissioners; 98 TJ. S. 541 .] 
 
 {d) Shaw v. "Woodcock, 7 B. & C. 73. 
 
 37 593 
 
523 CHAP. XI. DURESS . AND . UNDUE INFLUENCE. 
 
 So it is where excessive fees are taken under color of office, though 
 it be usual to pay them (a) ; or where an excessive charge for the 
 performance of a duty is paid under protest (6). The person who 
 actually receives the money may properly be sued, though he re- 
 ceive it only as an agent (c). The case of one creditor exacting 
 a fraudulent preference from a debtor as the price of his assent 
 to a composition (d) is to a certain extent analogous. But in all 
 these cases the foundation of the right to recover back the money is 
 not the involuntary character of the payment in itself, but the fact 
 that the party receiving it did no more than he was bound to do 
 already, or something for which it was unlawful to take money if 
 he chose to do it, though he had his choice in the first instance. 
 Such payments are thus regarded as made without consideration. 
 The legal effect of their being practically involuntary, though im- 
 portant, comes in the second place; the circumstances explain and 
 excuse the conduct of the party making the payment. Similarly 
 in the kindred case of a payment under mistake the actual founda- 
 tion of the right is a failure of consideration, and ignorance of ma- 
 terial facts accounts for the payment having been made. Thecom- 
 523] mon principle is that if a man chooses to give *away his 
 money, or to take his chance whether he is giving it away or not, 
 he can not afterwards change his mind; but it. is open to him to 
 show that he supposed the facts to be otherwise or that he really 
 had no choice. The difference between the right to recover money 
 back under circumstances of this kind and the right to rescind a 
 
 (a) Dew v. Parsons, 2 B. & Aid. 562; Steele v. Williams, 8 Ex. 625; 22 L. J. 
 "Ex.. 225. [" Whenever' a person is compelled to pay a public officer, in order to 
 induce him to do his duty, fees which he had no right to claim, they can be re- 
 covered back; " Robinson v. Ezzell, 72 N. C. 231 ; American Steamship Co. v. 
 Toung, 89 Pa. St. 186; Ogden D.Maxwell, 3 Blatchf. 319; Cunningham v. 
 Munroe, 15 Gray, 471.] 
 
 (b) Parker v. G. W. Ry. Co., 7 M. & Gr. 253, 292; [Railroad Co. v. C. V. & 
 W. Coal Co., 79 111. 121 ; Baker v. Cincinnati, 11 O. S. 534, 539-540; cp. Ken- 
 neth v. Railroad Co., 15 Rich. L. 284 ; Potomac Coal Co. v. Railroad Co., 38 Md. 
 226.] And see other authorities collected in notes to Marriott v. Hampton, 2 
 Sm. L. C. 
 
 (c) Steele v. Williams, supra; [see Ripley v. Gelston, 9 Johns. 201 ; Bank v. 
 Watkins, 21 Mich. 483, 489 ; Ogden v. Maxwell, 3 Blatchf. 319; Elliott v. Swart- 1 
 •wout, 10 Pet. 138.] 
 
 (d) Atkinsons. Den by, 6 H. & N. 778, in Ex. Ch. ; 7 lb. 934; 31 L.J. Ex.362. 
 Supra, Ch. VI., p. 331. 
 
 594 
 
DOCTRINE OF UNDUE INFLUENCE. 524 
 
 -contract on the ground of coercion is further shown by this, that 
 an excessive payment is not the less recoverable if both parties 
 honestly supposed it to be the proper payment (a). We therefore 
 •dwell no farther on this topic, but proceed to consider the more ex- 
 tensive doctrines of equity. 
 
 II. The equitable doctrine of Undue Influence. 
 
 In equity there is no rule defining inflexibly what kind or 
 amount of compulsion shall be sufficient ground for avoiding a 
 transaction, whether by way of agreement or by way of gift. The 
 ■question to be decided in each case is whether the party was a free 
 and voluntary agent (b). 
 
 Any influence brought to bear upon a person entering into an 
 agreement, or consenting to a disposal of property, which, having 
 regard to the age and capacity of the party, the nature of the 
 transaction, and all the circumstances of the case, appears to have 
 been such as to preclude the exercise of free and deliberate judg- 
 ment, is considered by courts of equity to be undue influence, and 
 is a ground for setting aside the act procured by its employment. 
 
 " The principle applies to every case where influence is acquired 
 and abused, where confidence is reposed and betrayed " (c). And 
 if it is once established that a person who stands in a position of 
 commanding influence towards another has obtained an advantage 
 from him while in that position, it will be presumed, in the ab- 
 sence of rebutting proof, that the advantage was obtained by means 
 of that influence : and it is not necessary for the party complaining 
 to show the precise manner in which the influence was exerted. 
 Indeed one chief object of the rules which will presently be dis- 
 cussed is to prevent those who unduly obtain benefits from persons 
 under their dominion from making *themselves safe by the [524 
 secrecy of the r particular transaction (d). It is very possible that 
 the circumstances would in many such cases, if they could be fully 
 brought out, amount to proof of actual compulsion or fraud; so 
 that it may perhaps be said that undue influence, as the term is 
 used in courts of equity, means an influence in the nature of com- 
 
 ■(a) Dew v. Parsons, 2 B. & Aid. 662. 
 (S) Williams v. Bayley, L. E. 1 Bt. L. 200, 210. 
 
 (c) Per Lord Kingsdown, Smith v. Kay, 7 H. L. C. at p. 779; [Long v. Mul- 
 ibrd, 17 0. S. 484] 
 
 (d) See Dent v. Bennett, 4 My. & Cr. at p. 277. 
 
 595 
 
525 CHAP. XI. DURESS AND UNDUE INFLUENCE. _ 
 
 pulsion or fraud, the exercise of which in, the particular .instance to- 
 determine the will of the one party to the advantage of the other- 
 is not specifically proved, but is inferred from an existing relation 
 of dominion on the one part and submission on the other (a). 
 Given a position of general and habitual influence, its exercise in- 
 the particular case is presumed. 
 
 But again, this habitual influence may itself be presumed to exist- 
 as a natural consequence of the condition of the parlies, though it 
 be not actually proved that the one habitually acted as if under the 
 domination of the other. There are many relations of common 
 occurrence in life from which "the Court presumes confidence put 
 [i.e. in the general course of affairs] and influence exerted" [i.e. in 
 the particular transaction complained of] (b). 
 
 Persons may therefore' not only be proved by direct evidence of 
 conduct, but presumed by reason of standing in any of these sus- 
 pected relations, as they may be called, to be-in a position of com- 
 manding influence over those from whom they take a benefit. In- 
 either case they are called upon to rebut the presumption that the 
 particular benefit was procured by the exertion of that influence, 
 and was not given with due freedom and deliberation. They must 
 "take upon themselves the whole proof that the thing is right- 
 ous" (c). We shall here observe that this, like several other of the 
 peculiar rules of equity, is not a rule of substantive law but a rule 
 of evidence. The distinction is well shown in the arrangement 
 525] of the Anglo-Indian codes. *We find the rule of law laid 
 down in the Contract Act (see Appendix H at end of this chapter). 
 But the rule of evidence properly finds its place, not here, but in 
 the Evidence Act (1. of 1872, s. Ill) :— 
 
 (a) In Boysc v. Rossborough, 6 H. L. C. at p. 48, it is said that, taking the- 
 words in a wide sense, all undue influence may be resolved into coercion and 
 fraud: but the case there considered is that of a will, in which undue influence- 
 has a more restricted meaning than in transactions inter vivos : see note (tf),. 
 p. 526, infra. 
 
 (J) Per Lord Kingsdown, Smith v. Kay, 7 H. L. C. 750, 779. 
 
 (a) Gibson v. J eyes, 6 Ves. 266, 276. The like burden of proof is cast upon. 
 those who take any benefit under a will which they have themselves been in- 
 strumental in preparing or obtaining: Fulton v. Andrew, L. K. 7 H. L. 448,. 
 472; [see Harvey v. Sullens, 46 Mo. 147 ; Riddell v. Johnson, 26 Gratt. 152; 
 Delafield v. Parish, 25 N. Y. 9, 35; Tyler v. Gardiner, 35 N. Y. 559; Patton «_ 
 Allison, 7 Humph. 320 ; Adair v. Adair, 30 Ga. 102 ; Beall v. Mann, 6 Ga. 456 . 
 Boyd v. Boyd, 66 Pa. St. 283.] 
 596 
 
PRESUMPTION FROM CONFIDENTIAL RELATIONS. 525 
 
 " Where there is a question as to the good faith of a trans- 
 action between parties, one of whom stands to the other in a 
 position of active confidence, the burden of proving the good 
 faith of the transaction is on the party who is in a position 
 of active confidence." 
 " Wherever two persons stand in such a relation that, while it con- 
 tinues, confidence is necessarily reposed by one, and the influence which 
 naturally grows out of that confidence is possessed by the other, and this 
 confidence is abused, or the influence is exerted to obtain an advantage 
 -at the expense of the confiding party, the person so availing himself of 
 his position will not be permitted to retain the advantage, although the 
 transaction could not have been impeached if no such confidential rela- 
 tion had existed " (a). 
 
 "Nothing can be more important to maintain " (it has been re- 
 cently said) " than the jurisdiction, long asserted and upheld by 
 the Court, in watching over and protecting those who are placed 
 in a situation to require protection as against acts of those who 
 'have influence over them, by which acts the person having such 
 influence obtains any benefit to himself. In such cases the Court 
 has always regarded the transaction with jealousy" (6) — a jealousy 
 ■almost invincible, in Lord Eldon's words (c). 
 
 "In equity persons standing in certain relations to one another, 
 such as parent and child (d), man and wife (e), doctor and patient 
 
 {a) Per Lord Chelmsford, Tate v. Williamson, 2 Ch. 55, 61. 
 (i) Per Lord Hatherley, Turner v. Collins, 7 Ch. 329, 338. 
 
 (c) Hatch v. Hatch, 9 Ves. at p. 296. 
 
 (d) Archer v. Hudson, 7 Beav. 551; Turner v. Collins, 7 Ch. 329; [see Jen- 
 tins v. Pye, 12 Pet. 241 ; Taylor v. Taylor, 8 How. 183 ; Berkmeyer v. Keller- 
 jman, 32 O. S. 239.] 
 
 (e) [Boyd v. De La Montagnie, 73 N. Y. 498, 502]; Lord Hardwicke's 
 •remarks in Grigby v. Cox, 1 Ves. sen. 517 (though not the decision, for it 
 ■was not a gift but a purchase, and apparently there was no evidence to 
 bear out the charge of collusion) and the decision in Nedby v. Nedby, 5 De 
 
 'G. & Sm. 377, seem contra; [and see contra, also, Hardy v. Van Harlingen, 
 7 0. S. 208; Earle v. Chace, 12 B. I. 374]; but see Cobbett v. Brock, 20 
 Beav. 524 ; Page v. Home, 11 Beav. 227 ; showing that there is a fiduciary re- 
 lation between persons engaged to be married; [Kline v. Kline, 57 Pa. St. 120; 
 Pierce v. Pierce, 71 N. Y. 154 ; and see Bockafellow v. Neweomb, 57 111. 186, where 
 relief was given to the man] ; and Coulson v. Allison, 2 D. *'. J. 521, 524, the like 
 as to persons living together as man and wife though not lawfully married. In 
 .all these cases the burden of proof was held to be on the man (as holding under 
 isuch circumstances a position of influence) to support the transaction. It may 
 snot he so, however, in a case of mere illicit intercourse : see Parmer v. Parmer, 
 1 H. L. C. 724, 752. [Where conveyances were made by a man to a woman 
 
 597 
 
526. CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 526] (a), *attorney and client (o), confessor and penitent, guardian ancP 
 ward (c), are subject to certain presumptions when transactions between 
 them are brought in question ; and if a gift or contract made in favor 
 of him who holds the position of influence is impeached by him who is- 
 subject to that influence, the courts of equity cast upon the former the- 
 burthen of proving that the transaction was fairly conducted as if be- 
 tween strangers, that the weaker was not unduly impressed by the natu- 
 ral influence of the stronger, or the inexperienced overreached by him 
 of more mature intelligence " (d). 
 
 with whom he was unlawfully cohabiting, it has been held that the onus of 
 showing an absence of undue influence was on her, Leighton v. Orr, 44 la.. 
 '679; and see Bivins v. Jarnigan, 59 Tenn. 282. 
 
 The fact that the beneficiary under a will has been living in illicit relations- 
 with the testator, does not create a presumption of law that the will was exe- 
 cuted under undue influence; Main v. Ryder, 84 Pa. St. 217; Rudy .v. TJlrich,. 
 69 Pa. St. 177 ; Monroe v. Barclay, 17 0. S. 302.] 
 
 (a) Dent v. Bennett, 4 My. & Cr. 269 ; Ahearne v. Hogan, Dru. 310 ; s. v. 
 Blackie v. Clark, 15 Beav. at p. G03; [Cadwallader v. West, 48 Mo. 483, 496; 
 cp. Audenried's Appeal, 89 Pa. St. 114, 120-121.] 
 
 (6) Gibson v. Jeyes, 6 Ves. 266; Holman v. Loynes, 4 IX M. G. 270; ©resley 
 v. Mousley, 4 De. G. & J. 78, 94; [Whitehead v. Kennedy, 69 N. Y. 462, 466; 
 Dunn v. Record, 63 Me. 17; Evans v. Ellis, 5 Denio, 640; Howell v. Ransom, 11 
 Paige, 538; Greenfield's Estate, 14 Pa. St. 489; McMahan v. Smith, 6 Heisk. 
 167 ; Zeigler v. Hughes, 55 111. 288 ; Jennings v. McDonnell, 17 111. 148 ; Ryan 
 v. Ashton, 42 la. 3,65; Brown v. Bulkley, 1 McCarter, 451 ; Roman v. Mali, 42 
 Md. 513, 559; Kisling v. Shaw, 33 Cal. 425.] 
 
 (c) Hatch v. Hatch, 9 Ves. 292; Maitland v, Irving, 15 Sim. 437; [Hoppin 
 v. Tobey, 9 R. I. 42 ; Malone v. Kelly, 54 Ala. 532 ;. Ferguson v. Lowery, 54 
 Ala. 510; Garvin *. Williams, 44 Mo. 465; 50 Mo. 206; Meek v. Perry, 36- 
 Miss. 190; Womack v. Austin, 1 S. C. 421.] 
 
 (d) Per Lord Penzance, Parfitt v. Lawless, L. R. 2 P. & D. 462, 468; [Erlan- 
 ger v. New Sombrero Phosphate Co., 3 App. Cas. 1218, 1229-1230.] .It is to be 
 noted that this does not apply to wills; Parfitt v. Lawless, -L. R. 2 P. & D. 462,. 
 468; [Lee v. Lee, 71 N. C. 139; Tyson v. Tyson's Ex'rs., 37 Md. 567, 583; Grif- 
 fith v. Diffenderffer, 50 Md, 466, 483; Daniel v. Hill, 52 Ala. 430, 442; but see- 
 contra, Garvin v. Williams, 44 Mo. 465, 477; Meek v. Perry, 36 Miss. 190,252; 
 Morris v. Stoker, 21 Ga. 552, 575, cases of guardian and ward.] As to wills, un- 
 due influence is never presumed': Parfitt v. Lawless, L. R. 2 P. & D. 462, 468; 
 Boyse v. Rossborough, 6 H. L. C. 2, 49 f Hindson v. Weatherill, 5 D. M. G. 301, 311,. 
 313 ; [Baldwin v. Parker, 99 Mass. 79 ; Barnes v. Barnes, 66 Me. 286, 297-8; Cud- 
 ney v. Cudney, 68 N. Y. 148] : though a disposition by will may be set aside as well 
 as an act inter vivos when undue influence is actually proved : but then, it seems, 
 the influence must be such as to " overpower the volition without convincing the 
 judgment:" Hall v. Hall, L. R. 1 P. & D. 482; [see 1 Jarman'on Wills (Ran- 
 dolph & Talcott ed.), p. 132 sqqj See Walker v. Smith, 29 Beav. 394, where be- 
 tween the same parties gifts by will were supported and a gift inter vivos set aside- 
 
 598 
 
BURDEN OF PROOF 1 VOLUNTARY DONATIONS. 52T 
 
 Lord Brougham in Hunter v. Atkins (a) made the following dis- 
 tinctions between the various kinds of relations as affecting the 
 burden of proof in respect of the validity of the act. 
 
 (a.) If it is not shown that special confidence was reposed in the- 
 person taking the benefit, specific proof is required of incapacity, 
 fraud, [or compulsion] vitiating the particular transaction. 
 
 (b.) If a confidential relation is proved (not being one of those 
 next mentioned) proof is required of circumstances making it 
 likely that some advantage was taken of such relation [though not 
 of the precise circumstances under which the act impeached took 
 place]. 
 
 (c.) But if the party taking the benefit stands towards the other 
 "in any of the known relations of guardian and ward, attorney 
 and client, trustee and cestui que trust, etc. [this etc. is important,. 
 as will immediately appear] then in order to support the [act] he 
 ought to show that no such advantage was taken . . . the 
 proof lies upon him that he has dealt with the other party, the 
 client, ward, etc., exactly as a stranger would have done." 
 
 If it is asked, what are the classes of persons who fall within 
 this last description, the answer is that as the Court of Chancery 
 *has never ventured to define fraud (b), so it has refused to [527 
 commit itself to any enumeration of the description of persons 
 against whom the jurisdiction now in question ought to be most 
 freely exercised. The cases in which it has been actually exer- 
 cised are considered as merely instances of the application of a 
 principle "applying to all the variety of relations in which domin- 
 ion may be exercised by one person over another " (c). Therefore 
 Lord Brougham's distinction between the cases in which influence 
 must be proved, and those in which it is presumed, affords no cer- 
 tain guide: the etc. of bis enumeration is a term of indefinite ex- 
 tent. At most it can be said that as to certain well-known rela- 
 tions the Court is now bound by authority to presume influence, 
 
 . (a) 3 My. & K. 113, 134. (4) 10 Ves. 308; 1 D. M. G. 691. 
 
 (c) Sir S. Eomilly, arg. Huguenin v. Baseley, 14 Ves. 285, adopted by Lord 
 Cottenham, Dent v. Bennett, 4 My. & Cr. 269, 277; Billage v. Bouthee, 9 Ha. 
 63,4, 540; [Todd v. Grove, 33, Md. 188, 194; Bayliss v. Williams, 6 Coldw. 440, 
 442; Deaton v. Munroe, 4 Jones Eq. 39, 41 ; McCormiek v. Malin, 5 Blackf. 
 609, 523.] Cp. D'Aguesseau (CEuvres, 1. 299), "Parceque la raison de l'ordon- 
 nance est generale, et qu'elte comprend egalement tous ceux qui.peuvent avoir 
 quelque empire sur l'esprit des donateurs, vos arrets en ont e'tendu la disposition 
 aux maitres, aux me'decing, aux confesseurs." 
 
 599 
 
'528 CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 and that as to any other relation which the Court judges to be of a 
 ■confidential kind it is free te presume that an influence founded on 
 the confidence exists, or to- require such proof thereof as it may 
 think fit. 
 
 Another general proposition of much importance w:is laid down 
 by Lord Eomilly in Cooke v. Lamotte (a), and again soon after- 
 wards in Hoghton v. Hoghton (b), which, if it could be relied on 
 to its full extent, would considerably modify the doctrine of Hunter 
 v. Atkins. This proposition is in substance as follows : 
 
 In every case where "one person obtains, by voluntary dona- 
 tion, a large pecuniary benefit from another," the person taking 
 the benefit is bound to show " that the donor voluntarily and de- 
 liberately performed the act, knowing its nature and effect." 
 
 For this purpose a voluntary donation means any transaction in 
 which one person confers a large pecuniary benefit on another, 
 though it may be in form a contract (c) ; and the rule is said 
 to obtain whether there is any confidential relation or not. And 
 528] *further, if the ease is one of those in which "the Court, 
 from the relations existing between the parties to the transaction, 
 infers the probability of undue influence having been- exerted," 
 the presumption thus raised has to be rebutted by proving, not 
 ■only '* that the person likely to be so influenced fully understood 
 the act he was performing, but also that his consent to perform 
 that act was not obtained by reason of the influence possessed by 
 the person receiving the benefit." 
 
 There is also a recent dictum of Lord Hatherley in favor of this 
 extended doctrine : " It is clear that any one taking any advantage 
 under a voluntary deed, and setting it up against the donor, must 
 show that he thoroughly understood what he was doing, or, at all 
 events, was protected by independent advice " (d). 
 
 It is, nevertheless, very doubtful whether these wide statements, 
 which (except, perhaps, as to Cooke v. Lamotte) go beyond what 
 was required for the decisions that gave occasion for them, can be 
 accepted as law. They have not been contradicted in any reported 
 
 (a) 15 Beav. 234, 240. 
 
 (b) 15 Beav. 278, 298: the most important passage of the judgment is also 
 set out in the notes to Huguenin v. Baseley, 2 Wh. & T. L. C. 
 
 (c) E.G. Cooke v. Lamotte, 15 Beav. 234; Dent v. Bennett,. 4 My. & Cr. 
 2fi9, 273. 
 
 (d) Phillips v. Mullings, 7 Ch. at p. 246. 
 
 600 
 
VOLUNTARY SETTLEMENTS. 529 
 
 -case, but the present writer has reason to know that they can 
 not be relied on in practice. Carried to their full extent, they 
 would make an irrevocable gift almost impossible. No man could 
 •confer a boon with grace or enjoy, it without misgiving. 
 
 It has been suggested in the Irish Court of Chancery that if 
 Hunter v. Atkins goes too far in one direction, Cooke v. Lamotto 
 and Hoghton v. floghton go too far in the other, and it may finally 
 bo established that the true rule lies between these (a). The sup- 
 posed middle course would, however, be difficult to define. 
 
 At all events, in the absence of any special relation from which 
 influence is presumed, and when it is shown that the grantor fully 
 understood the effect of his act, the burden of proof is on the per- 
 .son impeaching the transaction (6), and he must show affirmatively 
 that pressure or undue influence was employed. 
 
 ♦Having thus stated the fundamental rules, we may pro- [529 
 ceed to say something more of 
 
 (1) The auxiliary rules applied by courts of equity to voluntary 
 .gifts in general : 
 
 (2) The like as to the influence presumed from special relations, 
 .and the evidence required in order to rebut such presumption : 
 
 (3) What are the continuing relations between the parties from 
 which influence has been presumed : 
 
 (4) From what circumstances, apart from any continuing re- 
 lation, undue influence has been inferred: and herein of the 
 
 •doctrine of equity as to sales at an undervalue and " catching bar- 
 gains :" 
 
 (5) The limits of the right of recission. 
 
 1. As to voluntary dispositions in general. (Cp. Dav. Conv. 3. 
 .pt. 1. App.x. No. 4.) 
 
 A voluntary settlement which deprives the settlor of the imme- 
 •diate control of the property dealt with, though it be made not for 
 the benefit of any particular donee, but for the benefit of the set- 
 tlor's children or family generally, and free from any suspicion of 
 unfair motive, is not in a much better position than an absolute and 
 'immediate gift. It seems indeed doubtful whether the Court does 
 not consider it improvident to make in general indefinite co.ntem- 
 
 (a) Kirwan v. Cullen, 4 Ir. Ch. 322, 328. 
 
 (b) Blackieu. Clarke, 15 Beav. 595; Toker v. Toker, 31 Beav. 629; 3 D. J. 
 -S. 487; [Milliean v. Millican, 24 Tex. 426, 445; Beaton v. Munroe, 4 Jones Eq. 
 39; Willemin v. Dunn, 93 111. 513.] 
 
 601 
 
530 CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 plation of marriage the same kind of settlement which in contem- 
 plation and consideration of a definitely intended marriage it is- 
 thought improvident not to make (<?). 
 
 It is conceived that the ground on which such dispositions are- 
 readily set aside at the instance of the settlor's representatives is- 
 ' not the imprudence of the thing alone, but an inference from 
 that, coupled with other circumstances— such as the age, sex, and 
 capacity of the settlor — that the effect of the act can not have been 
 really considered and understood at the'timo when it was done (6).. 
 5303 *The absence of a power of revocation has often been in- 
 sisted upon as a mark of improvidence in a voluntary settlement;, 
 and it has been even held to be in itself an almost fatal objection : 
 but the doctrine now settled by the Court of Appeal is that it is- 
 not conclusive, but is only to be taken into account as matter of 
 evidence, and is of more or less weight according to the other cir- 
 cumstances of each case (c). 
 
 It was a rule of Chancery practice that a voluntary settlement- 
 could not be set aside at the suit of a defendant. The person im- 
 peaching it had to do so by a substantive proceeding in either an 
 original or a cross-suit (d). Under the new practice he will pro- 
 ceed by counter-claim if sued on the deed. 
 
 2. Auxiliary rules as to the influence presumed from special re- 
 lations. 
 
 The principle on which the Court acts in such cases is not af- 
 fected either by the age or capacity of the person conferring the 
 benefit, or by the nature of the benefit conferred (e). % 
 
 " Where a relation of confidence is once established, either some 
 positive act or some complete ease of abandonment must be shown 
 in order to determine it:" it will not be considered as deter- 
 mined whilst the influence derived from it can reasonably be sup- 
 posed to remain (e). 
 
 (ft) Everitt v. Everitt, 10 Eq. 405: but here some of the usual provisions- 
 were omitted. 
 
 (b) lb,; Prideaux v. Lonsdale, 1 D. J. S. 433; [Garnsey v. Mundy, 24 N. J. 
 Eq. 243.] So common ignorance or mistake of both parties as to the effect of 
 an i nstrument may sometimes bo inferred on the face of it from its unreasonable 
 or unusual character: see p. 435, supra. 
 
 y) Hall v. Hall, 8 Ch. 430, where the former cases are reviewed ; [Russell's 
 Appeal, 75 Pa. St. 269.] 
 \d) Way's tr., 2 D. J. S. 365, 372 ; Hall v. Hall, 14 Eq. 365, 377. 
 
 (c) Per Turner, L. J., Rhodes v. Bate, 1 Ch. 252, 257, 260; Holman v. Loynes,. 
 4 D. M. G. 270, 283 : [Mason v. Ring, 3 Abb. App. Dec. 210.] 
 
 602 
 
DUTY ATTACHED TO FIDUCIARY RELATIONS. 53L 
 
 Where the influence has its inception in the legal authority of a 
 parent or guardian, it is presumed to continue for some time after 
 the termination of the legal authority, until there is what may be 
 called a complete emancipation, so that a free and unfettered judg- 
 ment may be formed, independent of any sort of control (a). It 
 is sufficiently obvious that without this extension the rule would be 
 practically meaningless. It is said that as a general rule a year 
 should elapse from the termination of the authority before the 
 judgment can be supposed to be wholly emancipated : this of 
 course does not exclude actual proof of undue influence at any sub- 
 sequent time (b). With regard to the *evidence to- be ad- [531 
 duced to rebut the presumption in a transaction between a father 
 and a son who has recently attained majority, the father is bound 
 "to show at all events that the son was really a free agent, that he 
 had adequate independent advice . . . that he perfectly under- 
 stood the nature and extent of the sacrifice he was making, and 
 that he was desirous of making it." 
 
 " So again, where a solicitor purchases or obtains a benefit from a client, . 
 a court of equity expects him to be able to show that he has taken no ad- 
 vantage of his professional position; that the client was so dealing, with. 
 him as to be free from the influence which a solicitor must necessarily 
 possess, and that the solicitor has done as much to protect his client's 
 interest as he would have done in the case of a client dealing with a 
 stranger" (c). 
 
 He must give all the reasonable advice against himself that he 
 would have given against a third person (d). 
 
 The result of the decisions has been thus summed up by the Ju- 
 dicial Committee of the Privy Council. " The Court does not hold 
 
 fa) Archer v. Hudson, 7 Beav. 551,' 560 ; "Wright v. Vaiiderplank, 8 D. M. G. 
 133, 137, 146 ;» [see cases supra, p. 526, note (c).] 
 
 (b) See per Lord Cranworth, 7 H. L. 0. at p. 772. 
 
 (c) Savery v. King, 5 H. L. C. at p. 655. Casborne v. Bursham, 2 Beav. 76, 
 seems not quite consistent with this, but there the plaintiff was not the client 
 himself, but his assignee in insolvency*, and the client's own evidence was rather- 
 favorable to the solicitor. 
 
 (,d) Gibson ■». Jeyes, 6 Ves. 266, 278; [Bank v. Hornberger, 4 Coldw. 531, 
 671 ; Dunn v. Record, 63 Me. 17; Evans v. Ellis, 5 Denio, • 640, 643 ; McPher, 
 son v. Watt, 3 A pp. Ca. 254, 266. . 
 
 "An attorney who, seeks to avail himself of a contract made with his client- 
 is bound to establish affirmatively that it was made by the client with full 
 knowledge of all the material circumstances known to the attorney, and was in 
 every respect free from fraud on his part, or misconception on the part of the- 
 
 , 603 
 
;532 CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 that an attorney is incapable of purchasing from his client; but 
 ■watches such a transaction with jealousy, and throws on the attor- 
 ney the onus of showing that the bargain is, speaking generally, 
 .as good as any that could have been obtained by due diligence from 
 .any other purchaser" (a). He is not absolutely bound to insist. on 
 the intervention of another professional adviser. But if he does 
 not, he must not be surprised at the transaction being disputed, and 
 may have to pay his own costs even if in the result it is upheld. 
 
 " The broad principle on which the Court acts in cases of this descrip- 
 tion is that, wherever there exists such a confidence, of whatever charac- 
 ter that confidence may be, as enables the person in whom confidence or 
 trust is reposed to exert influence over the person trusting him, the Court 
 532] will not allow any transaction between the parties *to stand unless 
 there has been the fullest and fairest explanation and communication of 
 every particular resting in the breast of the one who seeks to establish a 
 •contract with the person so trusting him" (b), 
 
 In other words, every contract entered into by persons standing 
 in such a relation is treated as being ubsrrimae fldei, and may be 
 vitiated by silence as to matters which one of two independent 
 parties making a similar contract would be in no way bound to 
 communicate to the other; nor does it matter whether the omission 
 is deliberate, or proceeds from mere error of judgment or inad- 
 vertence (c). 
 
 Thus a medical attendant who makes with his patient a contract 
 
 -client, and that a reasonable use was made by the attorney of the confidence 
 reposed in him:'' Whitehead v. Kennedy, 69 N. Y. 462, 466. 
 
 "An attorney can not sustain a purchase from his client without showing that 
 he communicated to such client every thing necessary to enable him to form a 
 -correct judgment as to the real value of the subject of the purchase, and as to 
 the propriety of selling at the price offered. And the neglect of the attorney 
 to inform himself of the true state of the facts will not enable him to sustain a 
 purchase, from his client, for an inadequate consideration :" Howell v. Ransom, 
 11 Paige, 538.] As to solicitor's charges, see Lyddono. Moss, 4 De G. & J. 104_ 
 As to reopening accounts between solicitor and client, see Watson v. Kodwell, 
 7 Ch. D. 625; [on appeal, 11 Ch. D. 150.] 
 
 (a) Pisani v. A.-6. for Gibraltar, L. R. 5 P. C. 516, 536, 540. According to 
 the recent case of Morgan v. Minett, 6 Oh. D. 638, there is a still more stringent 
 rule as to gifts — an absolute rule of law "that while the relation of solicitor and 
 -client subsists, the solicitor can not take a gift from his client." Sed qu. [See 
 the same rule laid down in Berrien v. McLane, Hoffm. Oh. 420, 424; cp. Green- 
 weld's Estate, 14 Pa. St. 489; and see Nesbit v. Lockman, 34 N. Y. 167.] 
 (6) Per Page Wood, V.-C, Tate v. Williamson, 1 Bq. at p. 536. 
 (c) Molony v. Kernan, 2 Dr. & W. at p. 39. . . 
 C04 
 
FAMILY ARRANUEMENTS. 533:. 
 
 in any way depending on the length of the patient's life is bound 
 not to keep to himself any knowledge he may have professionally 
 acquired, whether by forming his own opinion or by consulting 
 with other practitioners, as to the probable duration of the life (a). 
 Perhaps the only safe way, and certainly the best, is to avoid sUcb 
 contracts altogether. 
 
 In Grosvenor v. Sherratt (6), where a mining lease had been 
 granted by a young lady to her brother-in-law (the son of her 
 father's executor) and uncle, at the inducement of the said ex- 
 ecutor, "in whom she placed the greatest confidence," it was held 
 that it was not enough for the lessees to show that the terms of the 
 lea*e were fair; they ought to have shown that no better terms 
 could possibly have been obtained; and as they failed to do this,.. 
 the lease was set aside (c). 
 
 This comes very near to the case of an agent dealing on his own 
 account with his principal, when "it must be proved that full in- 
 formation has been imparted, and that the agreement has been 
 entered into with perfect good faith " (d). Nor is the agent's duty 
 altered though the proposal originally came from *the prin- [533 
 cipal, and the princij)al shows himself anxious to complete the 
 transaction as it stands (e). The same rules apply to an executor 
 who himself becomes the purchaser of part of his testator's 
 estate (/). But this obligation of agents and trustees for sale ap- 
 pears (as we have already considered it, p. 252 above) to be inci- 
 
 (a) Popham v. Brooke, 5 Russ. 8. (6) 28 Beav. 659, 663. 
 
 (c) This is an extreme case. The Indian Contract Act, s. 16 (see Appendix 
 to this chapter) does not seem to go so far. It does make it the duty of a con- 
 tracting party in loco parentis to the other to disclose all material facts: "A. - 
 sells by auction to B. a horse which A. knows to be unsound. A. says nothing 
 to B. about the horse's unsoundness. This is not fraud in A." (s. 17, illust. a) : 
 but if " B. is A.'s daughter, and iu just come of age, here the relation of the 
 parties would make it A.'s duty to tell B. if the horse is unsound" (lb., - 
 illust. b). 
 
 (d) Molony v. Kernan, 2 Dr. & W. at p. 39 ; [Brooks v. Martin, 2 Wall. 70, 
 85; MCeormicku. Malin, 5 Blackf. 509; Condit v. Blaekwell, 22 N. J. 481; 
 ltubidoex v. Parks, 48 Cal. 215 ; Casey v. Casey, 14 111. 112 ; Farnam v. Brooks, 
 9 l'iek. 212.] 
 
 (e) Daily v. Wonham, 33 Beav. 154. 
 
 (/) Baker •». Read, 18 Beav. 398; where, however, relief was refused on the- 
 ground of 17 years' delay: [Statham v. Ferguson, 25 Gratt. 28; Johnson v.- 
 Johnson, 5 Ala. 90 ; and see Goodwin v. Goodwin, 48 Ind. 584.] 
 
 605 
 
534 CHAP. XI. DUKESS AND UNDUE INFLUENCE. 
 
 ■ dental to the special nature of their employment, and to be a duty- 
 founded on. contract rather than one imposed by any rule of law 
 which guards the freedom of contracting parties in general. 
 
 The duty cast upon a solicitor, or other person in a like position 
 of confidence, who deals on his own account with bis client, of dis- 
 -closing all material circumstances within his knowledge, does not 
 however bind him to communicate a "speculative and consequen- 
 tial " possibility which may affect the future value of the subject- 
 matter of the transaction, but which is not more in his own knowl- 
 edge than in the client's (a). 
 
 It must not be forgotten that the suspicion with which dealings 
 between parents and children presumably still under parental in- 
 fluence are regarded by courts of equity is to a certain extent 
 counteracted by the favor with which dispositions of the kind 
 known as family arrangements are treated. In many cases a bal- 
 ance has to be struck between these partly conflicting presump- 
 tions. "Transactions between parent and child may proceed upon, 
 .arrangements between them for the settlement of property, or of 
 their rights in property in which they are interested. In such 
 cases this Court regards the transactions with favor. It docs not 
 minutely weigh the considerations on one side or the other. Even 
 ignorance of rights, if equal on both sides, may not avail to im- 
 peach the transaction (b). On the other hand, the transaction 
 may be one of bounty from the child to the parent, soon after the 
 child has attained twenty-one. In such cases this Court views the 
 t>;M] transaction with jealousy, and *anxiously interposes its pro- 
 tection to guard the child from the exercise of parental influ- 
 ence " (e). 
 
 (a) Edwards v. Meyrick, 2 Ha. 60, 74; Holman v. Loynes, 4 D. M. G. at 
 p. 280. 
 
 (ft) Perhaps it is safer to say that the "almost invincible jealousy" of the 
 -court is reduced to "a reasonable degree of jealousy:" cp. Lord Eldon's lan- 
 guage in Hatch v. Hatch, 19 Ves. at p. 296, and Tweddell v. Tweddell, Turn. & 
 B. at p. 13^ On the question of consideration, see Williams v. Williams, 2 Ch. 
 284, 304. 
 
 (c) Baker v. Bradley, 7 D. M. G. 597, 620. See also Wallace v. Wallace, 2 
 Dr. & W. 452, 470 ; Bellamy v. Sabine, 2 Ph. 425, 439 ; Hoghton v. Hoghton, 1 5 
 Bi.-av. 278, 300 ; and on the doctrine of family arrangement not applying when 
 ,a son without consideration gives up valuable rights to his father, Savery v. 
 King, 5 H: L. C. at p. 657. A sale by a nephew to his [great] uncle of his re-* 
 versionary interest in an estate of which the uncle is tenant for life is not a 
 family arrangement : Talbot v. Staniforth, 1 J . & H. 484, 501. 
 606 
 
FAMILY ARRANGEMENTS. 535 
 
 It must be observed that the rales concerning gifts, or transac- 
 tions in the form of contract which are substantially gifts, from a 
 .-son to a father, do not apply to the converse case of a gift from an 
 Ancestor to a descendant: there is no presumption against the 
 validity of such a gift, for it may.be made in discharge of the nec- 
 essary duty of providing for descendants (a). 
 
 3. Kelations between the parties from which influence has been 
 presumed. 
 
 It would be useless to attempt an exact classification of that 
 which the Court refuses on principle to define or classify ; but it 
 may be convenient to follow an order of approximate analogy to 
 the cases of well-known relations in which the presumption is fully 
 established. 
 
 A. Eelations in which there is a power analogous to that of pa- 
 Tent or guardian. 
 
 Uncle m loco parentis and niece : Archer v. Hudson, 7 Beav. 551 ; 
 Maitland v. Irving, 15 Sim. 437 (6). Step-father in loco parentis 
 .and stepdaughter (c) : Kempson v. Ashbee, 10 Cb. 15; Espey v. 
 Lake, 10 Ha. 260. Executor of a will (apparently in a like posi- 
 tion) and the testator's daughter : Grosvenor v. Sherratt, 28 Beav. 
 659. 
 
 Husband of a minor's sister with whom the minor had lived for 
 some time before he came of age: Griffin v. Deveuille, 3 P. Wms. 
 131, n. 
 
 Two sisters living together, of whom one was in all respects the 
 head of the house, and might bo considered as in loco parentis to- 
 wards the other, though the other was of mature years : Harvey v. 
 Mount, 8 Beav. 439 (<z). Brother and sister, where the sister at the 
 age of 46 executed a voluntary settlement *under the [535 
 
 (a) Beanland v. Bradley, 2 De G. & Sra. 839 ; [Millioan v. Milliean, 24 Tex. 
 426; Saufley v. Jackson, 16 Tex. 579. But the unfavorable presumption may 
 arise "where the natural position of the parties is reversed by the influence of 
 time, and the parent has become a child and the child is guardian to the parent:" 
 Highberger v. Stiffler, 21 Md. 338.]' 
 
 (b) [Uncle and nephew, Hall v. Perkins, 3 Wend. 626; Graham v. Little, 3 
 Jones. Eq. 152.] 
 
 (c) [Berkmeyer v. Kellerman, 32 O. S. 239 ; Bradshaw v. Yates, 67 Mo. 221.] 
 _{dj [WatkinsB. Brant, 46 Wis. 419 ;■ Todd v. Grove, ,33 Md. 1^8, a, case of 
 
 two brothers.] 
 
 ... _ ... 607 
 
535 CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 brother's advice and for his benefit : Sharp v. Leach, 31 Beav.-' 
 491 (a). 
 
 Husband and wife on the one part, and aged and infirm aunt of 
 the wife on the other: Griffiths v. Robins, 3 Mad. 191 (6). 
 
 Distant relationship by marriage : the donor old, infirm, and bis 
 soundness of mind doubtful; great general confidence in the donee, 
 who was treated by, him as a son : Steed v. Galley, 1 Kee. 620. 
 This rather than the donor's insanity seems the true ground of the 
 case, see p. 644. 
 
 Keeper of lunatic asylum and recovered patient: Wright v. 
 Proud, 13 Ves, 136. 
 
 There are also cases of general control obtained by one person 
 over another without any tie of relationship or lawful authority; 
 Bridgman v. Green, 2 Ves. Sr. 627, Wilm. 58, where a servant ob- 
 tained complete control over a master of weak understanding ; Kay 
 v . Smith, 21 Beav. 522, affirmed nom. Smith v. Kay, 7 H. L. C, 
 750, where an older man living with a minor in a joint course of 
 extravagance induced him immediately on his coming of age to ex- 
 ecute securities for bills previously accepted by him to meet the 
 joint expenses. 
 
 In Lloyd v. Clark, 6 Beav. 309, the influence of an officer over 
 his junior in the same regiment was taken into account as increas- 
 ing the weight of other suspicious circumstances; but there is 
 nothing in the case to warrant including the position of a superior 
 officer in the general category of " suspected relations." 
 
 b. Positions analogous to that of solicitor (c). 
 
 Certificated conveyancer acting as professional adviser : Rhodes t>- 
 Bate, 1 Ch.252. Counsel and confidential adviser: Broun U.Ken- 
 nedy, 33 Beav. 133, 148, 4 D. J. S. 217. 
 
 Confidential agent substituted for solicitors in general manage- 
 ment of affairs: Huguenin v. Baseley, 14 Yes. 273 (<J). 
 
 (a) [See Boney v. Hollingsworth, 23 Ala. 690 ; Sears v. Shafer, 6 N. Y. 268.} 
 (5) [Graves v. White, 4 Baxter, 38. It has been decided that there is no 
 such relation of trust and confidence between a man and his mother-in-law, 
 that in dealings between them the latter should be supposed to act upon the 
 presumption that there would be no concealment of facts from her: Fish®. 
 Cleland, 33 111. 238; 43 111. 282.] 
 
 (c) [See Buffalow v. Buffalow, 2 Dev. & Bat. Eq. 241 ; Bayliss v. Williams, 
 6 Coldw. 440 ; Poillon ». Martin, 1 Sandf. Ch. 509.] 
 
 (d) A fortiori, where characters of steward and attorney are combined : Har- 
 xis v. Tremenheere, 15 Ves. 34. A flagrant case is Baker v. Loader, 16 Eq. 49>. 
 
 608 
 
PRESUMPTION OF INFLUENCE IN PARTICULAR INSTANCES. 535- 
 
 *A person deputed by an elder, relation, to whom a young [536 
 man applied for advice and assistance in pecuniary difficulties, to 
 ascertain the state of, his affairs and advise on relieving him from 
 his debts: Tate v. Williamson, 1 Eq, 528, 2 Ch. 55. 
 
 The relation of a medical attendant and his patient is treated 
 as a confidential relation analogous to that between solicitor and 
 client (a) : Dent v. Bennett, 4 My. & Cr. 269; Billago v. Southoe, 
 9 Ha. 534; Ahoarne v. Hogan, Dru. 310; though in Blackie v. 
 Clarke, 15 Beav. 595, 603, somewhat less weight appears to be at- 
 tached to it (6). It does not appear in the last case whether the 
 existence of " any thing like undue persuasion or coercion" (p. 
 604) was merely not proved or positively disproved: on the supposi- 
 tion that it was disproved there would be no inconsistency with the 
 other authorities. For another unsuccessful attempt to set aside a 
 gift to a medical attendant see Pratt v. Barker, 1 Sim. 1, 4 Buss. 
 507 ; there the donor was advised by his own solicitor, who gave 
 pusitive evidence that the act was free and deliberate. 
 
 c. Spiritual influence. 
 
 It is said that influence would be presumed as between a clergy- 
 man or any person in the habit of imparting religious instruction 
 and another person placing confidence in him: Dent v. Bennett, 7 
 Sim., at p. 546. There have been two remarkable modern cases of 
 spiritual influence in which there were claims to spiritual power 
 and extraordinary gifts on the one side, and implicit belief in 
 such claims on the other; it was not necessary to rely merely on 
 the presumption of influence resulting therefrom, for the evidence 
 which proved the relation of spiritual confidence also went far to 
 prove as a fact in each case that a general influence and control did 
 actually result : Nottidge v. Prince, '2 Giff. 246; Lyon v. Home, 6 
 Eq. 655 (c). In the former case at all events there was gross im- 
 
 As to a land agent purchasing or taking a lease from his principal, see also Mo- 
 lony u. Kernan, 2 Dr. & ~W. 81 ; Lord Selsey ». Ehoades, 2 Sim. & St. 41 ; 1 
 Bligh, 1. In Kossiter v. Walsh, 4 Dr. & W. 485, where the transaction was 
 between an agent and a sub-agent of the same principals, the case was put by 
 the bill (p. 487), but not decided, on the ground of fiduciary relation. See p. 
 532, above. 
 
 .(«j. [Cadwallader v. West, 48 Mo. 483, 496.] 
 
 (A) [And see Watson v. Mahan, 20 Ind. 223 ; Audenried's Appeal, 89 Pa. 
 St. 114.] 
 
 (c) In Lyon v. Home the. evidence appears to have been in a very unsatis- 
 
 609 
 
537 CHAP. XI. DUKE8S AND UNDUE INFLUENCE. 
 
 posture, bat the spiritual dominion alone would have been sufficient 
 ground to set aside the gift: for' the Court considered the influence 
 ■of a minister of religion over a person under his direct spiritual 
 charge to be stronger that that arisingfrom any other relation (a). 
 •537] There *seems to have been also in Norton v. Kelly, 2 Eden, 
 .286, the earliest reported ease of this class, a considerable admix- 
 ture of actual fraud and imposition. 
 
 The authority of Huguenin v. Baselej-, 14 Ves. 273, as to this 
 particular kind of influence, is to be found not in the judgment, 
 which proceeds on the ground of confidential agency, but in Sir S. 
 Romilly's argument in reply, to which repeated judicial approval 
 has given a weight scarcely if at all inferior to that of the decision 
 itself. 
 
 It may perhaps be conveniently observed in this place that trus- 
 tees have no business to make themselves partisans as between 
 their cestuis que trust in case of differences arising: and if they 
 put any pressure on one cestui que trust to make him concede ad- 
 vantages to others, though without obtaining any personal benefit 
 for themselves, they are considered to have committed a breach of 
 trust and are liable to pay the costs of setting aside the arrange- 
 ment (6). 
 
 The semi-judicial arguments of D'Aguesseau which have been cited on 
 •this head in our courts (GEuvres d Ayuesseau, 1. 284, 5. 514; 6 Eq. 671), 
 ■were both in testamentary cases, and rested partly on the policy of the 
 French law being unfavorable to charitable bequests generally, as "in- 
 officious" towards the natural successors: the following passage from the 
 ■case of the Reiigieuses du Saint- Sacrement (vol. 1. p. 295) puts this in a 
 striking light: — 
 
 "Ces dispositions universelles, contraires aux droits du sang et de la 
 nature, qui tendent a frustrer les hgritiers d'une succession legitime, sont 
 ^n elles memes peu favorables; non que ce seul moyen soit peut-gtre 
 suffisant pour aneantir un tel legs: mais lorsqu 'il est soutenu par les cir- 
 constances du fait . . . lorsque la donation est immense, qu'elle est 
 excessive, qu'elle renferme toute la succession . . . dans toutes ces 
 ■circonslances la justice s'est toujours elevee contre ces actes odieux; elle 
 a pris les heritiers sous sa protection ; elle a casse ces donations inofli- 
 ■cieuses, excessives et contraires & l'utilite publique." 
 
 factory condition, and on many particulars to have led to no definite conclu- 
 sion : the case is therefore more curious than instructive. 
 
 (a) 2 Giff. 269, 270. [See Nachtrieb v. The Harmony Settlement, 3 WalL 
 Jr. 66.] 
 
 (b) lillis v. Barker, 7 Ch. 104. 
 
 610 
 
TRUSTEES MUST BE IMPARTIAL. 538 
 
 We have seen that in England, on the contrary, it is much more diffi- 
 cult to dispute a bequest than a gift inter vivos. The analogy 01 these 
 -oases is therefore to be used with caution. 
 
 4. Circumstances held to amount to proof of undue influence, 
 .apart from any continuing relation. 
 
 *In a case where a father gave security for the amount of [538 
 certain notes believed to have been forged by his son, the holders 
 giving him to understand that otherwise the son would be pros- 
 ecuted for the felony, the agreement was set aside, as well on the 
 ground that the father acted under undue pressure and was not a 
 free and voluntary agent, as because the agreement was in itself 
 illegal as being substantially an agreement to stifle a criminal pros- 
 -ecution (a). 
 
 In Ellis v. Barker (6) the plaintiff's interest under a will was 
 practically dependent as to part of its value on his being accepted 
 as tenant of a farm the testator had occupied a3 yearly tenant. 
 One of the trustees was the landlord's steward, and in order to in- 
 duce the plaintiff to carry out the testator's supposed intention 
 of providing for the rest of the family he persuaded the landlord 
 not to accept the plaintiff as his tenant unless he would make such 
 an arrangement with the rest of the family as the trustees thought 
 right. Under this pressure the arrangement was executed : it was 
 practically a gift, as there was no real question as to the rights 
 of the parties. Afterwards the deeds by which it was made were 
 .set aside at the suit of the plaintiff, and the trustees had to pay the 
 costs. 
 
 These are the most distinct cases we have met with of a trans- 
 action being set aside on the ground of undue influence specifically 
 proved to have been used to procure the party's consent to that 
 particular transaction (c). 
 
 In Smith v. Kay (rf) a young man completely under the influ- 
 ■enee and control of another person and acting under that influence 
 .had been induced to execute securities for bills which he had ae- 
 
 («) Williams v. Bayley, L. K. 1 H. L. 200; cp. p. 290, above; [Ingersoll v. 
 Eoe, 65 Barb. 346; Eadie v. Slimmon, 26 N. T. 9; Anthony v. Hutchins, 10 R. 
 I. 165.] 
 
 (b) 7 Ch. 104. 
 
 (c) Cp. Orraes v. Beadel, 2 Giff. 166, revd. 2 D. P. J. 333, on the ground that 
 the agreement had afterwards been voluntarily acted upon with a knowledge 
 ■«of all the facts. 
 
 (d) 7 H. L. C. 750. 
 
 611 
 
539 CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 cepted during Lis minority without any independent legal advice p. 
 and the securities were set aside. There was in this case evidence 
 of actual fraud ; but it was distinctly affirmed that the decision 
 would have been the same without it, it being incumbent on per 7 
 sons claiming under the securities to give satisfactory evidence of 
 fair dealing (a). 
 
 539] *This comes very near to the peculiar class of cases on 
 " catching bargains *' with which we shall deal presently. 
 
 Undue influence may be inferred when the benefit is such as the- 
 taker has no right to demand [i.e. no natural or moral claim] and 
 the grantor no rational motive to give (£>). 
 
 Inadequacy of the consideration, though in itself not decisive,- 
 may be an important element in the conclusion arrived at by a 
 court of equity with respect to a contract of sale. 
 
 The general rule of equity in this matter has been thus stated 
 by Lord Westbury : " It is true that there is an equity which may 
 be founded upon gross inadequacy of consideration. But it can 
 only be where the inadequacy is such as to involve the conclusion 
 that the party either did not understand what he was about or was 
 the victim of some imposition " (c). 
 
 The established doctrine is that mere inadequacy of price is in 
 itself of no more weight in equity than at law (d). It is evidence 
 
 (a) Pp. 761, 770. The securities given were for an amount very much ex- 
 ceeding the whole of the sums really advanced and the interest upon them : 
 p. 778. 
 
 (by Pureell v. Macnamara, 14 Ves. 91, 115. 
 
 (c) Tennent v. TennentSj L. B. 2 Sc. & D. 6, 9. For a modern instance of 
 such a conclusion being actually drawn by the court from a sale at a gross un- 
 dervalue, see Kice v. Gordon, 11 Beav. 265, 270 ; cp. Underhill v. Horwood, 10 
 Ves. at p. 219 ; Summers • v. Griffiths, 35 Beav. 27, 33, and the earlier dictum 
 there referred to of Lord Thurlow in Gwynne v. Heaton'(l Bro. C. C. 1, 9) that 
 " to set aside a conveyance there must be an inequality so strong, gross, and 
 manifest, that it must be impossible to state it to a man of common sense, with- 
 out producing an exclamation at the inequality of it." [See Eyre v. Potter, 15 
 How. 42, 60; Dunn v. Chambers, 4 Barb. 376, 379; Juzan v. Toulmin, 9 Ala. 
 662, 086 ; Kailroad Co. ■». Oomrn'rs. of Miami Co., 12 Kan. 482; Hyer v. Little, 
 20 N. J. Eq. 443, 459; Coffee v. lluffin, 4 Goldw. 487, 507; Howard v. Edgell,. 
 17 Vt. 9, 27; Parmelee v. Cameron, 41 N. Y. 392.] 
 
 (d) Wood v. Abrey, 3 Mad. 417, 423; Peacock v. Evans, 16 Ves. 512, 517; 
 Stiilwell a. Wilkins, tf»c. 280, 282; [Eyre v. Potter, 15 How. 42, 59-60; Chaired 
 v. Brady, 10 Fla. 133 ; Exr's. of Wintermute v. Exr's. of Snyder, 2 Green's Ch. 
 489, 496.] 
 
 612 
 
UNDERVALUE. 540 
 
 of fraud, but standing alone, by no means. conclusive evidence (a). 
 Even when coupled with an incorrect statement of the considera- 
 tion it will not alone be enough to vitiate a sale in the absence of 
 any fiduciary relation between the parties (6). 
 
 But if there are other circumstances tending to show that the 
 vendor was not a free and reasonable agent, the fact of the sale hav- 
 ing been at an undervalue may be a material element in determin- 
 ing the Court to set it aside. Thus it is when one member of a 
 testator's family conveys his interest, in the estate, to others for an 
 inadequate consideration, and it is *doubtful if he fully un- [540 
 •derstood the extent of his rights or the effect of his act (c). If 
 property is bought at an inadequate price from an uneducated man 
 •of weak mind (d) or in his last illness (e), who is not protected by 
 independent advice, the burden of proof is ou the purchaser to 
 sh,ow that the vendor made the bargain deliberately and with 
 knowledge of all the circumstances. Nay more, when the vendor 
 is infirm and illiterate and employs no separate solicitor, "it lies 
 •on the purchaser to show affirmatively that the price he has given 
 is the value," and if he can not do this the sale will be set aside at 
 the suit of the vendor (/). And a late case in the Court of Appeal 
 was decided on the ground that " if a solicitor and mortgagee 
 . . . obtains a conveyance [of the mortgaged property] from 
 the mortgagor, and the mortgagor is a map in humble circum- 
 stances without any legal advice, then the onus of justifying the 
 
 (a) Cockell v. Taylor, 15 Beav. 103, 115 ; [Davidson v. Little, 22 Pa. St. 245; 
 Talbot's Devisees v. Hooser, 12 Bush, 408.] 
 .(b) Harrison v. Guest, 6 D. M. G. 424; 8 H. L. 0. 481. 
 
 (c) Sturge v. Sturge, 12 Beav. 229 ; cp. Dunnage v. "White, 1 Swanst. 
 137, 150. 
 
 (d) Longmate v. Ledger, 2 Giff. 157, 163 (affirmed on appeal, see 4 D. F. J. 
 402). 
 
 (e) Clark v. Malpas, 31 Beav.. 80; 4 D. P. J. 401. [" It may be stated as set- 
 tled law, that whenever there is great weakness of mind in a person executing 
 
 .a conveyance of land, arising from age, sickness, or any other cause, thosigh 
 not amounting to absolute disqualification, and the consideration given for the 
 .property is grossly inadequate, a court of eqviity will, upon proper and season- 
 able application of the injured party, or his representatives or heirs, interfere 
 and set the conveyance aside:" Alloro v. Jewell, 94 U. S. 506, 511—512 ; and see 
 Tracey v. Sackett, 1 O. S. 54; Scovill v. Barnex, 4 Oreg. 288; Cadwallader v. 
 "West, 48 Mo. 483 ; Harris v. Wamsley, 41 la. 671 ; Buffalow v. Buffalow, % 
 Dev. & Bat. Eq. 241; Perkins v. Scott, 23 la. 237.] 
 
 if) Baker v. Monk, 33 Beav. 419; 4 D. J. S. 388, 391. 
 
 613 
 
541 CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 transaction, and showing that it was a right and fair transaction,, 
 is thrown upon the mortgagee " (a). 
 
 Similarly if a purchase is made at an inadequate price from 
 vendors in great distress, and without any professional assistanee- 
 but that of the purchaser's attorney, "these circumstances are evi- 
 dence that in this purchase advantage was taken of the distress of 
 the vendors," and the conveyance will be set aside (6). 
 
 It has even been said that to sustain a contract of sale in equity 
 " a reasonable degree of equality between the contracting parties " 
 is required (e). But such a dictum can be accepted only to this- 
 extent : that when there is a very marked inequality between the 
 parties in social position or intelligence, or the transaction arises 
 out of the necessities of one of them and is of such a nature as to- 
 put him to some extent in the power of the other, a Court of Eq- 
 541] uity will be inclined to give much more *weigbt to any sus- 
 picious circumstances attending the formation of the contract, and. 
 will be much more exacting in its demands for a satisfactory ex- 
 planation of them, than when the parties are on such a footing as- 
 to be presumably of equal competence to understand arid protect 
 their respective interests in the matter in hand. Compare the more 
 guarded statement in Wood v. Abrey (d) : " A Court of Equity 
 will inquire whether the parties really did meet on equal terms;, 
 and if it be found that the vendor was in distressed circumstances, and ' 
 that advantage was taken of that distress, it will avoid the contract."" 
 The true doctrine is well expressed in the Indian Contract Act, s. . 
 25, expl. 2. "An agreement to which the consent of the promisor 
 s freely given is not void merely because the consideration is 
 nadequate ; but the inadequacy of the consideration may be taken 
 nto account by the Court in determining the question whether the 
 consent of the promisor was freely given." A sale made by a per- 
 
 (a) Lord Hatherley, C, Prees v. Coke, 6 Ch. 645, 649: though in general' 
 there is no rule against a mortgagee buying from his mortgagor; Knight »... 
 Marjoribanks, 2 Mae. & G. 10; and see Ford v. Olden, 3 Eq. 461; [supra, 
 p. 446, note (a).] 
 
 (6) Wood v. Abrey, 3 Mad. 417, 424; [McCormick v. Malin, 5 Blaokf. 509,. 
 530; McKinney v. Pinckard, 2 Leigh, 149; Lester v. Mahan, 25 Ala. 445 ;r 
 Esbam v. Lamar, 10 B. Mon. 43; Wheeler v. Smith, 9 How. 55; Adm'rs. ol 
 Hough *. Hunt, 2 Ohio, 495.] 
 
 (cj Longmate v. Ledger, 2 Giff. at p. 163, by Stuart, V.-C: cp. the same- 
 judge's remarks in Barrett v. Hartley, 2 Eq. at p. 794. 
 (d) 3 Mad. at p. 423. 
 614 
 
UNDERVALUE AND SPECIFIC PERFORMANCE. 542 
 
 son of inferior station, and for an inadequate price, was upheld bv 
 the Court of Appeal in Chancery, and ultimately by the House of* 
 Lords, when it appeared by the evidence that the vendor had en- 
 tered into the transaction deliberately, and had deliberately chosen, 
 not to take independent professional advice («.). 
 
 It is not so clear, however, that a degree of inadequacy of con- 
 sideration which does not amount to evidence of fraud, etc., such, 
 as to be a ground for avoiding the contract may not yet bo a suffi- 
 cient ground for refusing specific performance. The general rule 
 as to granting specific performance, so far as it bears on this point, 
 is that the Court has a discretion not to direct a specific perform- 
 ance in cases where it would be highly unreasonable to do so : it is 
 also said that one can not define beforehand what shall be consid- 
 ered unreasonable (b). On principle it might perhaps be doubted 
 whether it should ever be considered unreasonable to make a man 
 perform that which he has the present means of performing, and 
 which with his eyes open ho has bound himself to perform by a 
 contract valid in *law. And it is said in Watson v. Marston [542 
 that the Court " must be satisfied that the agreement would not 
 have been e'ntered into if its true effect had been understood." 
 Possibly this may bo considered to overrule earlier decisions which 
 certainly do furnish authority for refusing a specific performance 
 simply on the ground of the apparent hardship of the contract. 
 But without entering on this general question, which would lead 
 us too far, we have now to examine whether inadequacy of con- 
 sideration, not being such as to make the validity of the contract 
 doubtful (c), is regarded as making the performance of it highly 
 unreasonable within the meaning of the above rule: and for this 
 purpose we assume the generality of the rule not to be affected by 
 any thing that was said in Watson v. Marston. 
 
 The authorities are so conflicting that the best course seems to be 
 to set them against one another and leave the matter to the read- 
 
 (a) Harrison v. Guest, 6 D. M. G. 424 ; 8 H. L. C. 481 ; op. Kosher v. Will- 
 iams, 20 Eq. 210. 
 
 {b) See Watson v. Marston, 4 D. M. G. 230, 239,240, and dicta there referred 
 to; [Lee v. Kirby, 104 Mass. 420, 427-8.] 
 
 (c) Doubt as to the validity of the contract, short of the conclusion that it is 
 not valid, has always been held a sufficient ground for refusing specific per- 
 formance. Probably this, arose from the habit or etiquette by which courts of 
 equity, down to recent times, never decided a legal point when they could! 
 help it. 
 
 615 
 
543 
 
 CHAP. XI. DUKESS AND UNDUE INFLUENCE. 
 
 Contra. 
 
 Collier v. Brown, 1 Cox, 428. 
 
 er's judgment. Our own impression is that the opinion to which, 
 lord Eldon at least inclined, and which was expressed by Lord St. 
 Leonards and Lord Eomilly, is on the whole the 1 better supported 
 and the more likely to be upheld whenever the point comes before 
 a Court of final appeal (a). 
 
 In favor of treating inadequacy of 
 consideration as a ground for refusing 
 ■specific performance. 
 
 Young v. Clarke, Pre. Ch, 538. 
 
 Savile v. Savile, 1 P. Wms. 745. 
 
 Underwood v. Hitohcox, 1 Ves. 
 St. 279. 
 
 Other cases of the early part of 
 the 18th century cited from MS. in 
 Howell v. George, 1 Mad. p. 9, 
 note {I). 
 
 Day v. Newman, 2 Cox, 77, see p. 
 80, and ad fin. : the case was of a sale 
 543] at a great overvalue *( nearly 
 double the real value), and there 
 were cross suits for specific perform- 
 ance and for rescission. There was 
 nothing to show fraud, but it was 
 considered " too hard a bargain for 
 the Court to assist in." Both" bills 
 •were dismissed. 
 
 Anon, cited in Mortimer v. Cap- 
 per, 1 Bro. C. C. 158: (sale of an al- 
 lotment to be made by Inclosure 
 Commissioners : value unascertain- 
 ed at date of contract). 
 
 (a) [Although there are dicta and cases in this country to the effect that in- 
 adequacy of consideration not amounting to evidence of fraud may be a ground 
 for refusing specific performance, Seymour v. Delancy, 6 Johns. Ch. 222; Os- 
 good v. Franklin, 2 Johns. Ch. 1, 23; Powers v. Hale, 5 Post. 145; Eastman v. 
 Plumer, 46 N. H. 464; Clitherall v. Ogilvie, 1 Dess. 250; Gasque v. Small, 2 
 Strobh. Eq. 72 ; Knobb v. Lindsay, 5 Ohio, 468, 472, the weight of authority is 
 in favor of the rule that inadequacy of consideration, when urged as a defense 
 against specific performance, stands upon the same ground as when presented 
 as a reason for avoiding a contract: Cathcart v. Eobinson, 5 Pet. 264, 271 ; Lee 
 v. Kirby, 104 Mass. 420; Hale v. Wilkinson, 21 Gratt. 75; Talley v. Kobinson's 
 Assignee, 22 Gratt. 888; Whiter. McGannon, 29 Gratt. 511; Seymour v. Delancy, 
 S Cow. 445; rev'g S. C. 6 Johns. Ch. 222; "Woodfolk v. Blount, 3 Hayw. 147; 
 Railroad Co. v. Babcock, 6 Met. 346; January v. Martin, 1 Bibb, 586; Harrison 
 ■o. Town, 17 Mo. 237; Shepherd v. Bevin, 9 Gill, 32; Young o. Frost, 5 Gill, 
 287, 313; Pripp v. Pripp, Rice's Eq. 84; Sarter v. Gordon, 2 Hill. Ch. 121; 
 "White ». Thompson, 1 Dev. & Bat. Eq. 493; Garnett v. Macon, 2 Marsh. Dec. 
 185, 246; Keady v. Noakes, 29 Ni J. Eq. 497; Shaddle v. Disbrough, 30 N- J. 
 Eq. 370, 384 ; Viele v. Railroad Co., 21 Barb. 381 ; Losee v. Morey, 57 Barb. 561.] 
 616 
 
UNDERVALUE AND SPECIFIC PERFORMANCE. 
 
 544 
 
 White v. Damon, 7 Ves. 30, before 
 Lord Rosslyn. 
 
 In Wedgewood v. Adams, 6 Beav. 
 ■600, 606, specific performance was 
 not enforced against trustees for 
 sale, when the contract (as the 
 Court inclined to think, but with 
 some doubt whether such could 
 have been the real intention of the 
 parties), bound them personally to 
 exonerate the estate from incum- 
 brances.and it was doubtful whether 
 these did not exceed the amount of 
 the purchase-money. But this was 
 not like the ordinary case of an 
 agreement between a purchaser and 
 a vendor in his own right, since the 
 trustees undertook a personal risk 
 without even the chance of any 
 personal advantage. 
 
 Faine v. Brown, before Lord Hard- 
 wick, cited 2Ves. Sr. 307, and re- 
 ferred to by Lord Langdale in 
 Wedgewood v. Adams, was a pe- 
 culiar case : the hardship was not 
 in any inadequacy of the purchase- 
 money, but in the fact that the ven- 
 -dor would lose half of it by the con- 
 dition on which he was entitled to 
 the property. 
 
 In Falcke v. Gray, 4 Drew. 651, 
 there was 'something beyond mere 
 inadequacy : the agreement was for 
 a purchase at a valuation, and 
 *there was no valuation by a [544 
 •competent person. V.-C. Kinders- 
 ley however expressed a distinct 
 opinion that specific performance 
 •ought to be lefused on the mere 
 ground of inadequacy, even if there 
 were none other, relying chiefly on 
 White v. Damon and Day v. New- 
 man. 
 
 He referred also to Vaughan v. 
 Thomas, 1 Bro. C. 0. 556 (a not very 
 -intelligibly reported case, where the 
 
 White v. Damon, 7 Ves. 30, 34, on 
 rehearing before Lord Eldon (but 
 limited to sales by auction). 
 
 Coles v. Trecothick, 9 Ves. 234, 
 246, per Lord Eldon : " unless the 
 inadequacy of price is such as shocks 
 the conscience, and amounts in 
 itself to conclusive and decisive ev- 
 idence of fraud in the transaction, 
 it is not itself a sufficient ground 
 for refusing a specific performance." 
 
 Western v. Eussell, 3 Ves. & B. 
 187, 193. 
 
 Borell v. Dann, 2 Ha, 440, 450, 
 per Wigram, V.-C. 
 
 Abbott v. Sworder, 4 De G. & Sm. 
 448, 461 : per Lord St. Leonards, 
 " the undervalue must be such as 
 to shock the conscience " [i.e., as tq» 
 be sufficient evidence of fraud, cp. 
 Lord Eldon's dictum, supra]. 
 
 Haywood v. Cope, 25 Beav. 140, 
 153. 
 
 617 
 
545 CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 agreement was for the re-purchase 
 of an annuity: the statement of 
 the facts raises some suspicion of 
 fraud) : — to ITeathcote v. Paignon, 
 2 Bro. C. C. 167; (but this and other 
 cases there cited in the reporter's 
 notes prove too much, for they are 
 authorities not for refusing specific 
 performance, but for actually set- 
 ting aside agreements on the ground 
 of under-value alone, which we 
 have seen is contrary to the modern 
 law) : — and to Kien v. Stukley, 1 
 Bro. P. C. 191, where specific per- 
 formance was refused by the House 
 of Lords, reversing the decree of 
 the Exchequer in equity (but on 
 another ground, the question of 
 value being "a very doubtful point 
 among the Lords," S. C. Gilb. 155, 
 nom. Kien v. Stuckley). 
 
 The decisions in Costigan v. Hast- 
 ier, 2 Sch. & L. 160, and Howell v. 
 (xeorge, 1 Mad. 1 (though the dicta 
 go farther), show only that a man 
 who has contracted to dispose of a 
 greater interest than he has will not 
 be compelled to complete his title 
 by purchase in order to perform the 
 contract. 
 
 545] *To enable the reader to make a comparison which maybe- 
 of some interest, we subjoin a brief notice of the provisions of the 
 principal Continental Codes as to the effect of inadequacy of con- 
 sideration on a sale. 
 
 The Continental enactments are derived from the rule of Roman law, 
 namely, that a sale for less than 'halt the true value may be set aside in 
 favor of the seller unless the purchaser elects to make up the deficiency 
 in the purchase-money : Cod. 4. 44. de resc. vend. 2. " Rem maioris pretii 
 si tu vel pater tuus minoris pretii distraxerit, humahum est ut vel pretium 
 te restituente emtoribus fundum venditum recipias, vel, si emtor elegerit, 
 quod deest iusto pretio recipias. Minus autem pretium esse videtur, si 
 nee dimidia pars veri pretii soluta sit." A less undervalue was not of 
 itself a sufficient ground : C. eod. tit. 8, 15. The old French law adhered 
 to this rule : Pothier, Obi , § 33. " On estime communement enorme la 
 lesion qui excede la moitie du juste prix," Id. Contr. de Vente, § 330, sqq.. 
 618 
 
FOREIGN CODES OF UNDERVALUE. 546- 
 
 Pothier, however, goes on to say that this does not apply to sales of re- 
 versionary interests (contrat de vente de droits successifs) nor to other 
 ■speculative contracts (contrats aleatoires), on account of the difficulty of 
 fixing the true value; nor to sales of movable property: cp. Id. de Vente, 
 § 341. Thus the rule and the exception, as touching immovable property, 
 were just the reverse of our own law as it stood before 1868. The mod- 
 ern French code fixes the undervalue for which a sale (of immovable- 
 property only) may be set aside at 7-12ths. It adds this important limita- 
 tion, that a general presumption of undervalue must be raised by the cir- 
 cumstances alleged on behalf of the seller before evidence of the actual 
 existence and amount of the inadequacy can be admitted. There are also- 
 certain precautions as to the kind of proof to be allowed. If undervalue - 
 to the prescribed extent is established the buyer has the option of sub- 
 mitting to a rescission of the sale or paying up the difference. (Code Civ. 
 1674-1685.) Nothing is said about sales of reversionary interests, but it 
 has been decided in accordance with the older law that the section does 
 not apply to them : Codes Annotes, 1. 798. " Ne sont pas sujettes a la re- 
 scision pour lesion les ventes suivantes . . . [inter alia]. La vente- 
 de droits successifs, encore qu'elle soit faite a un etranger." And the pro- 
 vision applies in favor of the seller only (art. 1683). Any waiver of the- 
 seller's possible rights on this score, however express, is inoperative (1674). 
 There are exceptional provisions for the case of "partage fait par l>aseend- 
 ant" (1079) and in favor of minors (1305, sqq). 
 
 The provisions of the Italian Code are in substance the same as those 
 of the Code Napoleon (Codice Civile, 1529-1537). 
 
 *The provisions of the Prussian Code — Allgem. Landrecht, part I. [546 
 Tit. II. §,§ 58, 59 (" Von der Verletzung fiber die Halfte") — are substan- 
 tially as follows. 
 
 The objection that the purchase-money is disproportionate to the value- 
 of the thing sold does not of itself suffice to avoid the contract. 
 
 " But if the. disproportion is so great that the purchase-money exceeds 
 double the value of the thing sold, then this raises a legal presumption 
 (rechtliche Vermuthung), of which the buyer may take advantage, of an 
 error such as to avoid the contract." 
 
 The buyer may by his contract waive the benefit of these provisions 
 (§ 65) ; and the seller can not in any case dispute the contract on the 
 ground of undervalue. 
 
 The reason of this appears to be that the judicial presumption is not of 
 fraud, but of error, and that the vendor can not be presumed to be in er- 
 ror as to the value of his own property. 
 
 The Austrian Code (§§ 934, 935), following the extended interpretation 
 of the Roman .rule sanctioned by the prevailing modern opinion in Ger- 
 many, see Vanjierow, Pand. § 611 (3.326), enacts that inadequacy of con- 
 sideration to the extent of more than one-half in any bilateral contract 
 .gives the party injured a right to call upon the other to make up the de- 
 ficiency or rescind the contract at that other's option. This right may be--- 
 
 619 
 
347 
 
 CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 ■waived beforehand, and the rule does not apply to judicial sales by auc- 
 tion. 
 
 Thus the French Code, follows the rule of the Roman law, giving the 
 remedy to the seller only, but adds a> qualifying rule of evidence which 
 limits the remedy to cases where there is some ground of suspicion be- 
 sides the undervalue itself. The Prussian Code reverses the civil law by 
 giving the remedy only to the buyer, and the Austrian Code extends 
 it to both parties, and to every kind of contract for valuable consider- 
 ation. These discrepancies seem to favor the conclusion that the course 
 our own law has always taken with respect to property in possession, and 
 now takes (since the Act 31 Vict. c. 4) with, respect to property in reversion, 
 is on the whole the wisest. It is worth while to observe that the recent 
 •Civil Code of Lower Canada has altered the law of that province in. the 
 same direction, and declares without exception that persons of full age 
 'are not entitled to relief from their contracts for cause of lesion only " 
 {§ 1012). On the other hand the question was considered in framing the 
 Italian Code, and the rule of the civil law was deliberately adhered to 
 -(Mazzoni, Diritto Civile Italiano, 3.357). 
 
 547] *The different enactments we have mentioned may be thus re- 
 capitulated. 
 
 
 Nature of property. 
 Movable or 
 immovable 
 
 In possession 
 or reversion. 
 
 Extent of 
 inadequacy 
 of considera- 
 tion giving To which 
 right of re- party 
 scission. 
 
 English Law. 
 
 No distinction. J 
 
 In possession. 
 
 None. ' 
 
 
 
 1 In reversion. - 
 
 (Before 1868) 
 
 
 
 
 
 Any. Seller. 
 
 
 
 
 
 (Since 1868) 
 
 
 
 
 
 'None. 
 
 Trench Code 
 
 Immovable 
 
 ' In possession. 
 
 7-12ths. Seller. 
 
 -and decisions 
 
 only. 
 
 
 
 (coupled with 
 
 thereon (fol- 
 
 
 
 
 circumstances 
 
 lowed by 
 
 
 
 
 of presump- 
 
 Italian Code). 
 
 
 
 In reversion. 
 
 tion.) 
 None. 
 
 Prussian Code. 
 
 
 No distinc 
 
 tion. 
 
 Over 1-2. Buyer. 
 
 Austrian Code. 
 
 
 No distinc 
 
 tion. 
 
 Over X-1. Either. 
 
 party 
 in any 
 contract 
 for valu- 
 able con- 
 sidera-"' 
 tion. 
 But we tjave still to deal with an important exceptional class of 
 ■cases. That which may have been a discretionary inference when 
 620 
 
EXPECTANT HEIRS AND- REVERSIONERS. 548" 
 
 the discretion of courts of equity was larger than it now is has in 
 these oases become a settled presumption, so that fraud, or rather 
 undue influence, is "presumed from the circumstances and condi- 
 tion of the parties contracting " (a). The term fraud is indeed of 
 common occurrence both in the earlier (a) and in the later author- 
 ities : but l: fraud does not here mean deceit or circumvention ; it 
 means an unconscientious use of the power *arising out of [5<t8 
 these circumstances and conditions " (b) : and this does not come 
 within the proper meaning of fraud, which is a misrepresentation 
 (whether by untrue assertion, suppression of truth, or conduct) 
 made with the intent of creating- a particular wrong belief in the 
 mind of the party defrauded. Perhaps the best word to use would, 
 be imposition, as a sort of middle term between fraud, to which it 
 comes near in popular language, and compulsion, which it suggests 
 by its etymology. 
 
 The class of persons in dealing with whose contracts the Court 
 of Chancery has thus gone beyond its general principles are those 
 who stand, in the words of the Master of the Rolls, "in that pe- 
 culiar position of reversioner or remainderman which is oddly 
 enough described as an expectant heir. This phrase is used, not 
 in its literal meaning, but as including every one who has either a 
 vested remainder or a contingent remainder in a family property r 
 inclnding a remainder in a portion as well as a remainder in an 
 estate, and every one who has the hope of succession to the prop- 
 erty of an ancestor— either by resison of his being the heir appar- 
 ant or presumptive, or by reason merely of the expectation of a 
 devise or bequest on account of the supposed or presumed affection 
 of his ancestor or relative. More than this, the doctrine as to ex- 
 pectant heirs has been extended to all reversioners and remainder- 
 men, as appears from Tottenham v. Emmett (c) and Earl of Ayles- 
 ford v. Morris (d). So that the doctrine not only includes the class 
 I have mentioned, who in some popular sense might be called ex- 
 pectant heirs, but also all remaindermen and reversioners " (e). 
 
 (a) Lord Hardwicke in Chesterfield v. Janssen, 2 Ves. Sr. at p. 155, classifies 
 this in general terms as " a third kind of fraud : " he proceeds (at p. 157) to 
 make a separate head of catching bargains, as " mixed cases compounded of all 
 or several species of fraud: " but the phrase as to presumption is almost liter- 
 ally repeated, and it is obvious that these oases really come under his third head... 
 
 (6) Per Lord Selborne, Earl of Aylesford v. Morris, 8 Ch. 484, 491. 
 
 (c) 14 W. K. 3. (rf) 8 Ch. 484. 
 
 (e) • Beynon v. Cook, 10 Ch. 391, n. 
 
 621 
 
-549 CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 The recent act 31 Vict. c. 4, bas modified the practice of tho- 
 
 ■Court of Chancery (which now continues in the Chancery Divis- 
 ion) less than might be supposed : it is therefore necessary to give 
 in the first place a connected view of the whole doctrine as it 
 
 -formerly stood. It was considered that persons raising money on 
 their expectancies were at such a disadvantage as to be peculiarly 
 exposed to imposition and fraud, and to require an extraordinary de- 
 
 -549] gree of protection (a) : and it was also thought *rigbt to dis- 
 courage such dealings on a general ground of public policy, as tend- 
 ing to the ruin of families (b) and in most cases involving " a sort 
 of indirect fraud upon the heads of families from whom these trans- 
 actions are concealed " (c). 
 
 Moreover, laws against usury were in force at the time when 
 courts of equity began to give relief against these "catching bar- 
 gains" as they are called (d) ; any transactions which looked like an 
 evasion of those laws were very narrowly watched, and it may be 
 surmised that when they could not be brought within the scope of 
 the statutes the Courts felt justified in being astute to defeat them 
 on any other grounds that could be discovered (e). 
 
 The doctrine which was at first introduced for the protection of 
 
 •expectant heirs was in course of time extended to all dealings what- 
 
 (a) "A degree of protection approaching nearly to an incapacity to bind 
 themselves by any contract:'' Sir W. Grant in Peacock v. Evans, 16 Ves. at 
 p. 514. 
 
 (b) Twisleton v. Griffith, 1 P. Wms. at p. 312; Cole v. Gibbons, 3 P. Wms. at, 
 p. 293; Chesterfield v. Janssen, 2 Ves. Sr. at p. 158. 
 
 (c) Per Lord Sel borne, Earl of Aylesford v. Morris, 8 Ch. 484, 492; Chester- 
 field v. Janssen, 2 Ves. Sr. 121, 157 ; [cp. supra, p. 302, note (d).J 
 
 (d) In "Wiseman v. Beake, 2 Vern. 121, it appears from the statement of the 
 facts that twenty years or thereabouts after the Eestoration this jurisdiction 
 was regarded as a novelty: for the defendant's testator " understanding, that 
 the Chancery began to relieve against such bargains " took certain steps to 
 make himself safe, but without success, the court pronouncing them " a contri- 
 vance only to double hatch the cheat." But in Ardglasse v. Muschamp, 1 
 Vern. 238, it is said that many precedents from Lord Baeon's, Lord Elles- 
 mere's, and Lord Coventry's times were produced. 
 
 (e) The reports of the cases on this head anterior to Chesterfield v. Janssen 
 are unfortunately so meager that it is difficult to ascertain whether they pro- 
 ceeded on any uniform principle. But the motives above alleged seem on the 
 whole to have been those which determined the policy of the court. On the 
 gradual extension of the remedy, cp. the remarks of Burnett, J., in Chester- 
 iield v. Janssen, 2 Ves. Sr. at p. 145. 
 
 622 
 
EXPECTANT HEIRS AND REVERSIONERS. 55f> 
 
 -ever with reversionary interests (a). In its finally developed form 
 it had two branches : — 
 
 1. As. to reversionary interests, whether the reversioner were 
 also an expectant heir or not: 
 
 a. The rule of law that the vendor might avoid the sale for un- 
 dervalue alone : 
 
 b, The rule of evidence that the burden of proof was on the 
 purchaser to show that he gave the full value. 
 
 It is this part of the doctrine that is changed by the Act 31 
 Yiut. c. 4. 
 
 *2. As to "catching bargains" with expectant heirs and [550 
 remaindermen or reversioners in similar circumstances, i.e. bar- 
 gains madein.substanceon the credit of their expectations, whether 
 the property in expectancy or reversion be ostensibly the subject- 
 matter of the transaction or not (b~). 
 
 The rule of evidence that the burden of proof lies on the other 
 contracting party to show that the transaction was a fair one. We 
 use the present tense, for neither the last-mentioned act nor the re- 
 peal of the usury laws, as we shall see presently, has made any 
 -change in this respect. 
 
 The part of the doctrine which is abrogated was intimately con- 
 nected both in principle and in practice with that which remains; 
 and it seems still advisable to give some account of the manner in 
 which it was applied. 
 
 In the leading case of Earl of Aldborough v. Trye, 7 CI. & F. 436, the 
 general rule above stated, which had been very broadly asserted in earlier 
 
 (a) [The English doctrine, in so far as it relates to vested interests, has been 
 ■denied to be in' force in this country: Cribbins v. Markwood, 13 Gratt. 495; 
 Mayo v. Carrington, 19 Gratt. 74 ; Davidson v. Little, 22 Pa. tit. 245, 252. 
 
 "A. court of equity will not, in the absence of lraud or undue influence, inter- 
 fere to set aside a sale by a legatee of a legacy of a fixed and certain sum of 
 money, payable at a fixed period after the death of the testator, with interest, 
 although such sale was made some years before the legacy was due, and for an 
 inadequate consideration ; and although' the legatee was at the time of the sale 
 a 'reckless, dissipated, improvident, and weak-minded young man.' Such a 
 .sale is not within the equity rule, which enables the court to relieve expectant 
 heirs, remaindermen, and reversioners, from disadvantageous bargains', where 
 both the amount or value of the interest sold and the time of its enjoyment are 
 uncertain : " Parmelee v. Cameron, 41 N . Y. 392.] 
 
 (b) Earl of Aylesford v. Morris, 8 Ch. at p. 497. 
 
 623 
 
551 CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 cases (a), notably in Gowland v. De Faria, 17 Ves. 20, 24, was confirmed; 
 and it was further settled that the full value which the purchaser of a 
 reversionary interest was bound to show that he had given was not the 
 actuarial value (&), i.e. the value as calculated by an actuary from the ta- 
 bles, but the fair market price at the time of the sale (.which would gener- 
 ally be less than the actuarial value). On this last principle sales by auc- 
 tion were treated with more favor than sales by private contract: for a 
 sale by auction was of itself prima facie evidence ot the market' price: 
 Shelly v. Nash, 2 Mad. -232, 236: but this might be rebutted by other cir- 
 cumstances, e.g. the sale being without reserve and thebidders knowing 
 of the vendor's distress : Fox v. Wright, 6 Mad. 111. There was no fixed 
 rule that a sale of a reversion must be by auction (Edwards v. Burt, 2 D. 
 M. G. 55; Lord v. Jeffkins, 35' Beav. 7, 16), but in practice a purchaser was 
 hardly safe in buying otherwise (Foster v. Roberts, 29 Beav. at p. 471). 
 
 Generally it was the purchaser's duty to preserve abundant evidence of 
 thefull value having been given (Saltern. Bradshaw, 26 Beav. 161, 164); nor 
 was he relieved from this burden of proof by any difficulty of ascertain- 
 ing the true value, whether caused by the property being in fact unmar- 
 ketable, or by the interest disposed of depending on a complex or specu- 
 551] lative contingency, such as the death without *issue of a particular 
 living person. In the former case evidence had to be procured from 
 experts (i.e. auctioneers rather than actuaries) that the price given was 
 the best that could be got: Tynte v. Hodge, 2 H. & M. 287, 298. In cases 
 of the latter kind the uncertainty of the risk did not prevent the Court 
 from interfering: Bowes v. Heaps, 3 Ves. & B. 117; an inquiry might be 
 directed, Boothby v. Boothby, 1 Mac. & G. 604; nor could the purchaser 
 merely by showing that the value he gave was substantial throw back 
 upon the vendor the burden of proving it inadequate, Talbot v. Stan- 
 forth, 1 J. & H. 484, 504; nor was the rule relaxed even where it appeared 
 to the Court impossible to ascertain the real value : Benyon v. Fitch, 35 
 Beav. 570, 575. There were indeed earlier dicta against setting a value 
 on complex contingencies (Baker v. Bent, 1 Russ. & M. 224, 229; cp. as 
 to this, and also as to the distinction between market value and actuarial 
 value, Lord Eldon's remark in Low v. Barchard, 8 Ves. at p. 136 ; and see 
 35 Beav. 11). But if the.purchaser had bought at the vendor's own valua- 
 tion of the corpus of the property, he was not bound in the absence of 
 ^evidence the other way to show that it was not too low: Perfect v. Lane, 
 ■8 D. F. J. 369, 377. 
 
 The doctrine applied to reversionary life interests as well as to rever- 
 sions in capital (Edwards ?>. Burt, 2 D. M. G. 55); to the sale of a rever- 
 sionary interest coupled with an interest in possession (Davis o. Duke 
 
 (a) Contra, Moth v. Atwood r 5 Ves. 845; but this appears to have been a 
 solitary exception. 
 
 (6) The adoption of the " actuarial " standard in Gowland v, De Faria was- 
 explained by the fact that in that case no other evidence was offered. 
 624 
 
SALES OF REVISIONS. 55£ 
 
 of Marlborough, 2 Swanst. 108, 154; Nesbitt v. Berridge, 32 Beav. 280, 
 286) (a) ; to dealings with personal property, in a mixed fund with real, 
 property (Edwards v. Browne, 2' Coll. 100), or alone (Foster v. Roberts, 29 
 Beav. 467); and to leases (Grosvenor v. Sherratt, 28 Beav. 659, 664) and 
 charges on reversionary interests as well as to sales (Davis v. Duke of 
 Marlborough ; Bromley v. Smith, 26 Beav. 644 ; Benyon v. Fitch, 35 Beav.. 
 570). Proof that the vendor was of mature age and fully understood: 
 what he was doing made no difference, nor was he bound to show that 
 he was in any distress at the time of the sale: Bromley v. Smith. 
 
 The presumption originally thought to arise from transactions of this 
 kind had in fact become transformed into an inflexible rule of law: and 
 the consistent application of. the rule made it well nigh impossible to- 
 deal with reversionary interests at all. The modern cases almost look as 
 if the Court, finding it too late to shake off the doctrine, had sought to--, 
 call the attention of the legislature to its inconvenience by extreme- 
 instances. Sales were set aside after the lapse of such a length of time 
 as 19 years (St. Alban v. Harding, 27 Beav. 11) and even 40 years (Salter 
 v. Bradshaw, 26 Beav. 161). A sub-purchaser who bought at a consider- 
 ably advanced price was held by this alone to have notice of the first sale 
 having been at an Undervalue (Nesbitt v. Berridge, 32 Beav. 280). [552' 
 In one case where the price paid was 2001., and the true value as esti- 
 mated by the Court 238/., the sale was set aside on the ground of this- 
 undervalue, though the question was only incidentally raised and the- 
 , plaintiff's case failed on all other points (Jones v. Ricketts, 31 Beav. 130). 
 A general view of the doctrine is given by Lord Selborne in Aylesford v. 
 Morrjs, 8 Ch. at pp. 489-492: and remarks on the policy of the rule as to 
 reversions are to be found in Bromley v. Smith, 26 Beav. at p. 665, and. 
 Webster v. Cook, 2 Ch. at pp. 544, n., 546, as well as in some other of the 
 authorities already cited. 
 
 Finally Parliament found it necessary to interfere, and by the* 
 "Act to amend the law relating to sales of reversions," 31 Vict, 
 c. 4 (7th December, 186.7), it was enacted (s. 1) that no purchase* 
 (defined by s. 2 to include every contract, etc., by which a bene- 
 ficial interest in property may be acquired), made bona fide and 
 without fraud or unfair dealing of any reversionary interest in real 
 or personal estate, should after January 1, 1868 (s. 3), be opened 
 or set aside merely on the ground of undervalue. Subject on^ 
 to a saving of pending suits (s. 3) this Act is retrospective, and 
 this is the more remarkable as the right taken away by it from, 
 any vendor of a reversion who might otherwise have set aside the 
 sale on the ground of undervalue alone, was (as in the case of a sale 
 
 (a) S- C 4 D. J. S. 45, but no appeal on this point. 
 
 625 
 
553: chap. xi. nnRES&. and. undue, influence. 
 
 voidable on any other ground) not a mere right. of suit but. an. in- 
 terest which was transmissible by descent, or devise (a). 
 
 The act is carefully limited to its special object of putting an end 
 to the arbitrary rule of equity which was an impediment to fair 
 and reasonable as well as to unconscionable bargains. It leaves un- 
 dervalue still a material element in cases in which it is not the sole 
 equitable ground for relief (b). 
 
 It had already been decided in Croft v. Graham (c) that the 
 repeal of the usury laws (<f) did not alter the general rules of the 
 553] *Court of Chancery as to dealings with expectant heirs. This 
 decision was followed in Miller v. Cook (e).and adhered to in Tyler v. 
 Yates (/), and lastly in Earl of Aylesford v. Morris (g) and Beynon 
 v. Cook (A), and in the two latter cases it has been clearly laid 
 ■down that the rules are in like manner unaffected by the change in 
 the law concerning sales of reversions. And this was confirmed 
 by all the opinions delivered in the recent case of O'Korke v. Bo- 
 lingbroke (i) in the House of Loi*ds, though the particular transac- 
 tion in dispute was upheld. 
 
 The effect of these rules is not to lay down any proposition of 
 substantive law, but to make an exception from the ordinary rules 
 of evidence by throwing upon the party claiming under a contract 
 
 (a) Gresley v. Mousley, 4 De G. & J. 78, 93. 
 
 (b) Earl of Aylesford v. Morris, 8 Oh. at p. 490. See also O'Rorke v. B«ling- 
 broke, 2 App. Ca. 814. 
 
 (c) 2 D. J. S. 155. 
 
 {d) 17 & 18 Viet., t. 90. But before this complete repeal exceptions had 
 been made from the usury laws in favor of certain bills of exchange, and loans 
 ■exceeding 101. not secured on land: 3 & 4 Wm. 4, c. 98, s. 7 ; 2 & 3 Vict., c. 
 57; s. 1, and comments thereon in Lane v. Horlock, 5 H. L. 0. 480. 
 . (e)lQEq. 641. (/) 11 Eq. 265; 6 CI,. 665. 
 
 (g) 8 Oh. 484 j this may now be regarded as the leading case on the subject. 
 It should be- observed that in Tyler v. Yates a principal and surety made them- 
 selves liable for a bill which, the principal had accepted during his minority, 
 without knowing that there was no existing legal liability on the bill, and all 
 the subsequent transactions were bound up with this: and the case was rested 
 on this ground in the Court of Appeal (p. 671'). Cp. on' this point, Coward v. 
 Hughes, 1 K. & J. 443, where a widow who during her husband's life had 
 joined as surety in his promissory note executed a now note under the impress- 
 ion that she was liable on the old one, and' without any new consideration, and 
 the note was set aside: see Southall v. Bigg, and Eorman v. Wright,: 11 0. B. 
 481 ; 20 L. J. C. P. 145. 
 
 (A) 10>GH. 389. (i) 2 App. Ca. 814. 
 
 626 
 
WHAT ARE " CATCHING BARGAINS." 554' 
 
 i.he burden of proving, not merely that the essential requisites of a 
 -contract, including the other party's consent, existed, but also that 
 such consent was perfectly free. The question is therefore, what 
 arc "the conditions which throw the* burden of justifying the right- 
 eousness of the bargain upon the party who claims the benefit of 
 it" («). Now these conditions have never been fixed by any posi- 
 tive authority; We have seen that the Court of Chancery has re- 
 fused to define fraud, or to limit by any enumeration the standing 
 relations from which influence will be presumed. In like manner 
 there is no definition to be found of what is to be understood by a 
 " catching bargain." This being so, we can only observe the con- 
 ditions which have in fact been generally present in the bargains 
 against which relief has been given- in the exercise of this juris- 
 diction. These are : — 
 
 1. A loan in which the borrower is a person having little or no 
 property immediately available, and is trusted in substance on the 
 credit of his expectations. 
 
 *Obs. It is immaterial whether there is or not any actual dealing [554 
 with the estate in remainder or expression of the contingency on which 
 the fund for payment of the principal advanced substantially depends. 
 Earl of Aylesford v. Morris, 8 Ch. at p. 497. 
 
 2. Terms prima facie oppressive and extortionate (i.e. such that 
 a man of ordinary sense and judgment can not be supposed likely 
 to give his free consent to them). 
 
 Obs. An excessive rate of interest is in itself nothing more than a dis- 
 proportionately large consideration given by the borrower for the loan : 
 and it is not sufficient, standing alone, to invalidate a. contract in equity : 
 Webster v. Cook, 2 Ch. 542, where a loan at 60 per cent, per annum was 
 upheld. Stuart, V.-C. disapproved of the case in Tyler v. Yates (11 Eq. 
 at p. 276) but on another point. And see Parker v. Butcher, 3 Eq. 762, 
 767. 
 
 3. A considerable excess in the nominal amount of the sums ad- 
 vanced over the amount actually. received by the borrower. 
 
 Obs. This appears in all the recent cases in which relief has been given : 
 •deductions being made on every advance, according to the common prac- 
 tice of professed money-lenders, under the name of discount, commission, 
 and the like. The result is that the rate of interest appearing to be 
 taken does not show any thing like the terms on which the loan is in 
 trutfc made.: and this may be considered evidence of fraud so far as it ar- 
 jues a desire on the part of the lender to gloze - over the real terms of the 
 bargain. Probably, however, a jury could not be directed so to consider 
 
 (a) Earl of Aylesford v. M'orris, 8 Ch. at p. 492. 
 
 627 
 
555 CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 it in a trial where fraud was distinctly in issue; though no doubt such? 
 circumstances, or even an exorbitant rate of interest, would be made mat- 
 ter of observation. 
 
 4. The absence of any real bargaining between the parties, or of" 
 any inquiry by the lender into the exact nature or value of the 
 borrower's expectations. 
 
 Obs. These circumstances are relied on in Earl of Aylesford v. Morris 
 (8 Ch. at p. 496), as increasing the difficulty of upholding the transaction. 
 This again is the usual practice of the money-lenders who do this kind of 
 business. Their terms are calculated to cover the risk of there being no 
 security at all; moreover, the borrower often, wishes the lender not to 
 make any inquiries which might end in the matter coming to the knowl- 
 edge of the ancestor or other person from whom the expectations are de- 
 rived. The concealment of the transaction from the ancestor was held 
 by Lord Brougham, in King v. Hamlet, 2 M. & K. 456. to be an indispen- 
 555] sable condition of equitable relief; but *this opinion is not now ac- 
 cepted (Earl of Aylesford v. Morris, 8 Ch. at p. 491) (a). The decision in 
 King v. Hamlet (affirmed in the House of Lords, but without giving any 
 reasons, 3 CI. & F. 218) can be supported on another ground, viz., that a 
 party to a voidable contract can not rescind it if he has so acted under 
 the contract as to make it impossible to restore the former state of things, 
 as we have seen in Chap X, p. 510 above. 
 
 It seems safe to assert that in any case where these conditions 
 concur, the burden of proof is thrown on the lender to show that 
 the transaction was a fair one : it seems equally unsafe to assert 
 that they must all concur, or that anyone of them (except perhaps 
 the first) is indispensable. 
 
 It may then be asked, by what sort of evidence is the lender to 
 satisfy the Court that the borrower was not imposed on ? As there 
 is no reported case in which it was considered that the burden of 
 proof lay upon the lender, and yet he did so satisfy the Court, it 
 is impossible to give any certain answer to this question. But it- 
 does not take very much reflection to see that it is in fact extremely 
 improbable that in any case where the above-mentioned conditions 
 are present any satisfactory evidence should be forthcoming to- 
 justify the lender (6). Practically the question is whether in the* 
 opinion of the Court the transaction was a hard bargain (o) — that 
 
 ■(o) [Cp. supra, p. 302, note (d).] 
 
 (b) " No attempt has been made to show by any independent evidence (if 
 such a thing could be conceived possible) that the terms thus imposed on the 
 plaintiff were fair and reasonable: " 8 Ch. 496. 
 
 (c) See the judgment of the M. B., Beynon v. Cook, 10 Ch. 391, n. 
 
 628 
 
RELIEF AGAINST "CATCHING BARGAINS." 556 
 
 3s, not merely a bargain in which the consideration is inadequate, 
 Taut an unconscionable bargain where one party takes an unfair 
 ; ad vantage of the other (a). 
 
 An account stated for the purpose of a contract of this descrip- 
 tion is of no more validity than the contract itself, and a recital of 
 it in the security does not preclude the borrower from reopening 
 the account even as against purchasers or Sub-mortgagees of the 
 original lender who have notice of the general character of the 
 transaction. For such notice is equivalent to notice of all the legal 
 -consequences (6). 
 
 *Tho borrower who seeks relief against a contract of this [556 
 description must of course repay whatever sums have been actually 
 -advanced, with reasonable interest (according to the usual practice 
 -of the Court, 5 per cent.), and the relief is granted only on those 
 terms. Moreover it is held not unjust that he should obtain it at 
 his own expense, since he calls in the assistance of the Court to 
 undo the consequences of his own folly (c) : and accordingly the 
 -general rule is to give no costs on either side (d). 
 
 The rule of evidence casting a special burden of proof on the 
 lender being peculiar to equity, there was generally no defense at 
 law to an action brought by him to enforce a contract of this kind: 
 nor would an equitable plea under the Common Law Procedure 
 Act have been available, since such pleas were admitted only when 
 they showed cause for absolute and unconditional equitable relief. 
 But the rule of evidence hitherto followed in equity must now pre- 
 vail in every Division of the High Court, and the probable effect 
 of this in the Common Law Divisions may be expressed as follows: 
 
 When a lender of money sues on a special contract, whether such 
 
 (a) Per Jessel, M. R., in Middleton v. Brown; 47 L. J., Ch. 411. 
 
 (4) Tottenham v. Green, 32 L. J. Ch. 201: a ease decided under the old rule 
 as to dealings with reversionary interests, but the principles seem applicable in 
 all cases where the burden of proof is still on the lender. 
 
 (c) Earl of Aylesford v. Morris, 8 Ch. at p. 499. 
 
 (d) In the cases of sales of reversions under the former law on that head the 
 practice was for some time to treat the suit as a redemption suit, and give the 
 purchaser his costs as a mortgagee : but the later rule was to give no costs on 
 -either side, except that the plaintiff had to bear such as were occasioned by any 
 unfounded charges of actual fraud: Edwards v. Burt, 2 D. M. G. at p. 65 ; 
 Bromley v. Smith, 26 Beav. at p. 676, and costs might be given against the de- 
 fendant as to any transaction in which there had been misconduct on his part: 
 'Tottenham v. Green, 32 L. J.- Ch. 201, 206. 
 
 629 
 
357 CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 contract be embodied m a negotiable instrument or not, and the- 
 %orrdwer proves facts which bring the cCntraet within the descrip- 
 tion of a "catching bargain," as understood ' by courts of equity r . 
 the lender must prove the reasonableness of the bargain (a) ; and, 
 if he fails to do so, he can not recover on the special contract, but 
 can recover his principal and reasonable interest as on a common^ 
 count for money lent. It must be noticed that the importance of 
 this class of cases is much diminished, though the law is not af- 
 557] fected, by the Infants' *Eelief Act, 1874, which makes loans 
 of money to infants absolutely void and forbids any action to be 
 brought on a promise to pay debts contracted during infancy. See 
 p. 42, supra. 
 
 The same principles apply, so far as they are applicable to a 
 transaction of sale as distinguished from loan, to the sale of revers- 
 ionary interests by persons who are not in an independent position, 
 as when the sale is made by a man only just of age in pursuance- 
 of terms settled while he was still an infant. Here the burden is 
 on the purchaser to show the fairness of the transaction. He is 
 not bound to show that the price given was absolutely adequate ; 
 but he is bound, notwithstanding the act of 1867 (31 Vict., c. 4, p. 
 552, above), to show that it was such as, upon the facts known to 
 him at the time, he might have reasonably thought adequate. 
 Moreover he ought to see, where practicable, that the seller has in- 
 dependent legal advice. These rules seem to be established by 
 O'Rorke v. Bolingbroke (6), which is remarkable as an almost sin- 
 gular instance of an impeached transaction' with an " expectant 
 heir"" being upheld. There a father and son negotiated with a 
 purchaser for the sale of the son's reversionary interest expectant 
 on the death of the father. The sale was completed three weeks 
 after the son came of age. The price was agreed to after some- 
 bargaining; it was founded on a statement of value furnished by a 
 third person, and would have been adequate if the father's life had 
 been a good one. The purchaser did not know and had no reason 
 to believe any thing to the contrary, but it was in fact a bad life. 
 The young man took no independent advice, being " penniless, and 
 except for his father friendless" (c). The father died within three- 
 
 (a) Qu. is this a question for the jury or for the court? Prima facie it 
 should be a question of fact: but there are some analogies (e.g. the cases on re- 
 straint of trade) .for treating jit as a question of law. 
 
 (6) 2 App. Ca. 814. • (c) {Lord Blackburn, at p. 837. 
 
 630 
 
-BEVERSIONART INTKBESTS. 55^ 
 
 months. after the sale. Four years later the son sued to have the 
 whole transaction set aside, but failed in the House of Lords after 
 succeeding in the Court of Appeal in Ireland. The majority of the 
 Lords (a) hold that the burden of -proof was indeed on the buyer, 
 but that he had satisfied it. Lord Hatherley dissented, thinking 
 that it was the buyer's absolute duty to see that the young man had 
 independent advice. 
 
 *We have yet to examine another alleged ground of equit- [558- 
 able relief against contracts, founded on the notion of an inequal- 
 ity between the contracting parties : we say alleged, for we adopt 
 the opinion, for which there is high authority, that it ought not to 
 be treated as a substantial ground for avoiding transactions, but 
 only as matter of evidence : we mean "surprise," or "surprise and 
 improvidence." 
 
 The case of Evans v. Llewellyn (b) may be taken as the typical 
 instance. The plaintiff was a person of inferior station and educa- 
 tion, who acquired by descent a title in fee simple to a share in 
 land in which the defendant had a limited interest. His title was 
 first communicated to him by the defendant, who represented tc- 
 him (as the fact appears to have been) that the circumstances of the 
 family created a moral obligation in the plaintiff not to insist on 
 his strict rights, and offered to purchase his interest for a substan- 
 tial though not adequate consideration. The defendant suggested 
 to the plaintiff to consult his friends in the matter, which, however, 
 he did not do. Three days intervened between the first interview 
 and the conclusion of the business by the acceptance of the defend- 
 ant's offer. It was considered that the plaintiff was, under the cir- 
 cumstances, not a free agent and not equal to protecting himself, 
 and was taken by surprise, and the sale was s'et aside (c) 
 
 The case seems somewhat anomalous, but it has been suggested 
 by very high authority that it would still be followed in setting 
 aside a contract as "improvident and hastily carried into execu- 
 
 (a) Lord Blackburn, Lord O'Hagan, and Lord Gordon. 
 
 (b) See following note. 
 
 (c) 2^0. C. C. 150; 1 Cox, 333, a fuller report, which is here followed; the 
 other, if correct, would" reduce it to a plain case of fraud or at all events mis- 
 representation. In the recent caso of Haygarth v. Wearing, 12 Eq. 320, which 
 to some extent resembled this, the ground of .the decision was a positive mis- 
 representation as to the value of .the property. 
 
 > , 631 
 
559 CIIAP. XI. DURESS AND UNDUE^ INFLUENCE. 
 
 tion ''-(a), and it has been distinctly approved in the Court , of Appeal 
 in Chancery (6). 
 
 It is submitted, however, that there is no intelligible reason 
 for treating surprise or improvidence as a substantive cause for 
 559] *setting aside contracts, much less for attempting to give 
 these words a technical signification. Both terms are in fact merely 
 negative and relative. Surprise is nothing else than the want of 
 mature deliberation : improvidence is nothing else than the want of 
 that degree of vigilance which a man of ordinary prudence may be 
 -expected to use in guarding his own interest. Now one man's de- 
 liberation and prudence are not the same as another man's nor is 
 the same man equally deliberate or prudent at all times. A man 
 may enter into a contract with less deliberation than the average 
 Wisdom of mankind would counsel, or than he himself commonly 
 uses, in affairs of the like nature, and yet the contract may be per- 
 fectly valid. But he must in any case understand what he is do- 
 ing ; for if he does not, there is no true consent and no contract (c) ; 
 and his consent must be freely given; for if it is not, the contract 
 is voidable at his option. And if it be disputed whether there was 
 or not any real consent, or whether consent was or not freely given, 
 then circumstances of what is called surprise or improvidence may 
 be very material as evidence bearing on those issues. Unusual 
 haste or folly in entering into an engagement is a circumstance to 
 be accounted for : and the best way of accounting for it may in all 
 the circumstances of a particular case be to suppose that the party 
 did not know what he was about, or that he was wrought upon by 
 conduct of the other party of such a kind as to make the contract 
 voidable on the ground of fraud, or the like. Surprise and improv- 
 idence, therefore, are matters from which those'whose province it is 
 to judge of the facts may conclude, as a fact in particular cases, 
 that there was no true consent, or that the consent was not free. 
 But it is not to be affirmed as a general proposition of law that 
 haste or imprudence can of itself be a sufficient cause for setting 
 
 (a) Lord St. Leonards in Curson v. Belworthy, 3 H. L. C. 742 : there the ap- 
 pellant relied on express charges of fraud, which were not made out,; but Lord 
 St. Leonards thought he might possibly have succeeded if be had rested his case 
 •on the ground suggested. 
 
 (6) Per Turner, L. J., in Baker v. Monk, 4 D. J. S. at p. 392. 
 
 (e) The cases of lunacy and drunkenness are exceptionally treated, the con- 
 tract being only voidable, supra, Ch. II., p. 80, and see p. 406. 
 632 
 
SURPRISE AND IMPROVIDENCE. 560 
 
 aside a contract, nor even that there is any particular degree of 
 haste or imprudence from which fundamental error, fraud, or un- 
 due influence, will be invariably presumed. " The Court will not 
 measure the degrees of understanding " (a). It seems to follow 
 that what is recorded in such a ease as Evans v. Llewellyn (6) is 
 not an enunciation of *law, but an inference of fact. Such [560 
 an inference, it is conceived, may be useful in the way of analogy 
 when similar circumstances recur, but is not binding as an author- 
 ity. The view here taken may be supported by the observations of 
 the judges in The Earl of Bath and Mountague's Case (a.d. 1693) (c). 
 In that case Baron Powel said (3 Ch. Ca. at p. 56) : 
 
 " It is said, This is a Deed that was obtained by Surprize and Circum- 
 vention. Now I perceive this word Surprize is of a very large and gen- 
 eral extent. . . . I hardly know any Surprize that should be sufficient 
 to set aside a Deed after a Verdict, unless it be mixed with Fraud, and that 
 expressly proved." [i.e., the verdict in favor of the deed precludes the 
 ■party from asserting in equity that he did not know what he was about: 
 for he should have set up that case at law on the plea of non est factum]. 
 •"It must be admitted that there was Deliberation, and Consideration and 
 Intention enough proved to make it a good Deed at Law, otherwise there 
 •would not have been a Verdict for it :" per L. C. J. Treby, lb. at p. 74. 
 
 The judgment of the Lord Keeper Somers is even more decided, 
 and points out clearly the difference between an instrument which 
 is void both at 'law and in equity, and one which is voidable in 
 equity (p. 108) : 
 
 " It is true, it is charged in the Bill that this Deed was obtained by 
 Fraud and Surprize. . . But whosoever reads over the Depositions 
 
 will see that the End they aimed at was to attack the Deeds themselves 
 as false Deeds and-not truly executed ; but that being Tried at Law, and 
 the Will and Deeds verified by a Verdict, the Counsel have attempted to 
 make use of the same Evidence, and read it all, or at least the greatest 
 Part of it, as Evidence of Surprize and Circumvention. . . . 
 
 "Now, for this word (Surprize) it is a Word of a general Signification, 
 so general and so uncertain, that it is impossible to fix it; a Man is sur- 
 priz'd in every rash and indiscreet Action, or whatsoever is not done with 
 ■so much Judgment and Consideration as it ought to be. But I suppose 
 the Gentlemen who use that Word in this Case mean such Surprize 
 as is attended and accompanied with Fraud and Circumvention; such a 
 Surprize indeed may be a good ground to set aside a Deed so obtain'd in 
 Equity and hath been so in all times; but any other Surprize never was, 
 .and I hope never will be, because it will introduce such a wild TJncer- 
 
 (a) Bridgman v. Green, Wilmot, 58, 61. (b) 1 Cox, 333. 
 (c) 3 Ch. Ca. 55. Cp. Story Eq. Jurisp., jS 251. 
 
 633 
 
$61 CHAP. XI. DTORffiSB AND TJNDHJiE INFLUENCE. 
 
 taimfey in the Decrees and Judgments of the Court, as wiJ! be of greatei- 
 Coneequediice than the Belief in any Case will answer for." 
 561] *Moreover, the doctrine thus stated is exactly analogous to- 
 tbat which we have seen to be undoubted law concerning imide- 
 quacy of 'consideration. The value of the subject-matter of a e >n- 
 tract, and therefore the adequacy of the consideration, which de- 
 pends on it, is surely in most cases easier to measure than the degree 
 of deliberation or prudence with which the contract was entered' 
 into. It can bardly be contended on principle that "surprise" or- 
 'improvidence," which in fact represent nothing but an opinioni 
 of the general character of a transaction, founded on a precarious 
 estimate of average human conduct, ought to have a greater legal 
 effect than inadequacy of consideration, which generally admits of 
 being determined by reference to the market value of the object at 
 the date of the contract. 
 
 5. Limits of the'right of rescission. 
 
 The right of setting aside a contract or transfer of property 
 voidable on the ground of undue influence is analogous to the right 
 of rescinding a transaction voidable on any other ground, and fol- 
 lows the same rules with some slight modifications in detail. 
 
 What is said in the last chapter of rescinding contracts for fraud; 
 f>r misrepresentation may be taken as generally applicable here. 
 We j>rooeed to give some examples of tbe special application of the 
 principles. 
 
 The right to set aside a gift or beneficial contract voidable for- 
 undue influence may be exercised by the donor's representatives or 
 successors in title (a.) as well as by himself, and against not only the 
 donee but persons claiming through him (b) otherwise than as pur- 
 
 (a) E.g. Executor: Hunter v. Atkins, 3 M. & K. 113; Coutts v. Aekworth, 8 
 Eq. 558; [Yard v. Yard, 27 N. J. Eq. 114; Boyd v. De La Montagnie, 73 N. 
 Y. 498 ; Buffalow v. Buffalow, 2 Dev. & Bat. Eq. 241.] Assignee in bankruptcy : 
 Eurd ■». Olden, 3 Eq. 461. Devisee: Gresley v. Mousley, 4 De G. & J. 78- 
 [Lee v. Pearce, 68 N. 0. 76.] Heir : Holrnan v. Loynes, 4 D. H. G. 270 ; [Allore 
 v. Jewell, 94 U. S. 506; Cadwallader v. West, 48 Mo. 483; Martin v. Martin, 1 
 Heisk. 644 ; Sears v. Shafer 6N.T. 268.] 
 
 (i) Huguenin v. Baseley, 14 Ves. 273, 289. Cp. Molony v. Kernan, 2 Dr. &r 
 W. 31, 40; [Portion v. Martin, 1 Sandf. Oh. 569. A conveyance procured by 
 "undue influence will be set aside against all who take a gratuitous benefit undei- 
 it, though they themselves took no part in procuring it: Whelan v. Whelan, 3- 
 Cow. 537, 577; Lee v. Pearce, 68 N. G. 76; Bergen v. Udall, 31 Barb. 9, 21? 
 Kanken v. Patton, 65 Mo. 378.] 
 634 
 
SURPRISE, ETC. : RESCISSION FOR UNDUE INFLUENCE. 562" 
 
 Chasers for value without notice (a). But the jurisdiction is not 
 exercised at the suit of third persons (b). TheCourt will not refuse, 
 for example, to pay a fund, at the request of a petitioner entitled 
 thereto, to the trustees of a deed of gift previously executed by the 
 petitioner, because third parties suggest that the gift was not freely 
 made (c). 
 
 *On the other hand, it is not necessarj^ to the support of [562 
 a claim to set aside a contract on the ground of undue influence to- 
 show that the influence was directly employed by another contract- 
 ing party. It is enough to show that it was employed by some one 
 who expected to derive benefit from the transaction, and with the 
 knowledge of the other party or under circumstances sufficient to 
 give him notice of it. The most frequent case is that of an ances- 
 tor or other person in loco parentis, inducing a descendant, etc., to 
 give security for a debt of the ancestor. But if the other party 
 does all he reasonably can to guard against undue influence being 
 exerted (as by insisting on the person in a dependent position hav- 
 ing independent professional advice), and the precautions he de- 
 mands are satisfied in a manner he can not object to at the time, 
 the contract can not as against him be impeached (d). 
 
 It appears to be at least doubtful whether a contract can be set 
 aside on the ground of influence exerted on one of the parties by a 
 stranger to the contract who did not expect to derive any benefit 
 from it (e) : except where the contract is an arrangement between 
 cestuis que trustent claiming under the same disposition, and the 
 trustee puts pressure on one of the parties to make concessions ; the 
 ground in this case being the breach of a trustee's special duty to- 
 act impartially (/). 
 
 The right to set aside a contract originally voidable on the ground 
 
 («) Cobbett v. Brock, 20 Beav. 524, 528. 
 
 (/;) [Davidson v. Little, 22 Pa. St. 245; Andrews v. Jones, 10 Ala. 400, 
 419-420.] 
 
 (e) Metcalfe's tr., 2 D. J. S. 122. 
 
 (d) Compare Cobbett v. Brock, 20 Beav. 524, with Berdoe v. Dawson, 34 
 Beav. 003; [Bergen v. Udall, 31 Barb. 9; White v. Graves, 107 Mass. 325.] As- 
 to what amounts to notice, Maitland v. Backhouse, 16 Sim. 58; Tottenham v- 
 Groen, 32 L. J. Ch. 201 ; [Al.wood v. Mansfield, 59 111. 496.] 
 
 (e) Bentley v. M ackay, 31 Beav. 143, 151. On principle the answer should, 
 ■clearly be in the negative. [But see Bariken v. Patton, 05 Mo. 378.] 
 
 (/) Ellis v. Barker. 7 Ch. 104. 
 
 635 
 
£63 CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 -of undue influence may be lost by express confirmation (a) or by 
 -delay amounting to proof of acquiescence (6), But any subsequent 
 confirmation will be inoperative if made in the same absence of in- 
 dependent advice and assistance which vitiated the transaction in 
 the beginning (c). This has been strongly stated in the judgment 
 of Lords Justices in Moxon v. Payne (d) : " Frauds or impositions 
 563] of tbo kind practiced in this *case can not be condoned ; the 
 aMght to property acquired by such means can not be confirmed in 
 this Court unless, there be full knowledge of all the facts,. full 
 knowledge of the equitable rights arising out of those facts, and an 
 absolute release from the undue influence by means of which the 
 frauds were practiced. To make a confirmation or compromise of 
 .any value in this Court the parties must be at arm's length, on 
 ■equal terms, with equal knowledge, and with sufficient advice and 
 protection." If it is made without knowledge of the invalidity of 
 the original transaction it is wholly inoperative (e) And delay 
 which can be accounted for as not unreasonable in all the eircum- 
 •stances is no bar to relief (e). In short, an act " the effect of which 
 is to ratify that which in justice ought never to have taken place " 
 ought to stand only upon the clearest evidence (/). The effect of 
 delay on the part of the person seeking relief is also subject to a 
 .special limitation. In a case between solicitor and client, or par- 
 ties standing in any other confidential relation, less weight is given 
 
 (a) Stump v. Gaby, 2 D. M. G. 623 : Morse v. Koyal, 12 Ves. 855 ; [Sogers v. 
 Higgins, 57 111. 244, 250.] 
 
 (b) "Wright v. Vanderplank, 8 D. M. G. 183, 147; Turner v. Collins, 7 Ch. 
 329 ; [Jenkins v. Pye, 12 Pet. 241 ; Price's Appeal, 54 Pa. St. 472.] 
 
 (c) Savery v. Kipg, 5 H. L. C. at p. 664. 
 
 (d) 8 Ch. 881, 885. And a confirmation will not he helped by the presence 
 of an independent adviser of the party confirming, if, in consequence of the 
 
 -continuing influence of the other party, his advice is in facL disregarded: lb. 
 
 (e) Kempson v. Ashbee, 10 Ch. 15; [Butler v. Haskell, 4 Dess. 651, 708; 
 Boyd v. Hawkins, 2 Dev. Eq. 195, 215; McCormick v. Malin, 5 Blackf. 509, 
 532-3 ; Thompson v. Lee, 31 Ala. 292, 304.] 
 
 (/) Morse v. Royal, 12 Ves. at p. 374; [In Montgomery v. Perkins, 116 Mass. 
 
 227, A. by fraud obtained a bond for a deed of land from B., who afterwards, 
 
 with full knowledge of the facts, and after taking legal advice, executed and 
 
 ■delivered the deed ; it was held that the deed did not operate as a confirmation 
 
 -of the previous transaction, not having been given with that intent.] 
 
 636 
 
INDIAN CONTRACT ACT. 564- 
 
 to the lapse of time than is due to it when no such relation sub- 
 sists (a). 
 
 An adoption of the instrument impeached for a particular pur- 
 pose (as by the exercise of a power contained in it) may operate as- 
 an absolute confirmation of the whole (6). 
 
 It seems that the presumption of influence arising from confi- 
 dential relations is not to be extended to cases where a merely 
 trifling benefit is conferred (c). This is more than a simple appli- 
 cation of the maxim Be minimis -non curat lex, for the transaction^ 
 brought in question might be in itself of great magnitude and im- 
 portance, though the advantage gained by one party over the other 
 were not large. Indeed the case to which this principle seems most 
 likely to be applicable is that of a transaction not of a commercial 
 nature, and on such a scale that the pai-ties, dealing fairly and de- 
 liberately, might choose not to be curious in weighing a compara- 
 tively small balance of profit or loss. 
 
 * APPENDIX G. [564 
 
 INDIAN CONTRACT ACT ON FRAUD, ETC. 
 
 The sections of the Indian Contract Act dealing with the subjects we 
 have considered in the last four chapters are the following (d) : 
 10. All agreements are contracts (e) if they are made by the free con- 
 sent of parties competent to contract, for a lawful consideration 
 and with a lawful object, and are not hereby expressly declared 
 to be void. . . . 
 
 13. Two or more persons are said to consent when they agree upon the- 
 
 same thing in the same sense. 
 
 14. Consent is said to be free when it is not caused by 
 
 (o) Gresley v. Mousley, 4 De G. & J. 78, 90. But even in a case between so- 
 licitor and client a delay of eighteen years has been held fatal : Champion »„ 
 Kigby, 1 Russ. & M. 539. 
 
 (4) Jarratt v. Aldam, 9 Eq. 463. 
 
 (c) Per Turner, L. J., Rhodes v. Bate, 1 Ch. at p. 258. 
 
 (d) The illustrations are here omitted. Some of them have been already 
 cited in the text (pp. 425, 492, 532). 
 
 (e) See the definitions in s. 2, p. 6 above. 
 
 .637 
 
565 CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 (1) coercion, as defined in section 15; or 
 
 (2) undue influence, as defined in section sixteen, or 
 
 (3) fraud, as defined in section seventeen, or 
 
 (4) misrepresentation, as defined in section eighteen', or- 
 
 (5) mistake, subject to the provisions of sections twenty, 
 twenty-one, and twenty-two. 
 
 Consent is said to be so caused when it would not have been given but 
 for the existence of such coercion, undue influence;, fraud, misrepresenta- 
 tion, or mistake. 
 
 15. Coercion is the committing, or threatening to commit, any act forbid- 
 
 den by the Indian Penal Code, or the unlawful detaining, or 
 threatening to detain, any property to the prejudice of any per- 
 son whatever, with the intention of causing any person to enter 
 into an agreement. 
 Explanation. — It is immaterial whether the Indian Penal Code is or is 
 not in force in the place where the coercion is employed. 
 
 [This goes far beyond English law, for it does not require that the co- 
 ercion should be exercised by or even known to the other party, nor that 
 the person coerced should be the party whose consent is to be obtained, 
 or in any way related to him.] 
 
 16. Undue influence is said to be employed in the following cases : — 
 
 (1) When a person in whom confidence is reposed by an- 
 other, or who holds a real or apparent authority over 
 that other, makes use of such confidence or authority 
 for tbe purpose of obtaining an advantage over that 
 other, which, but for such confidence or authority, he 
 could not have obtained ; 
 565] *(2) When a person whose mind is enfeebled by old 
 age, illness, or mental or bodily distress, is so treated as 
 to make him consent to that to which, but for such treat 
 ment, he would not have consented', although such 
 treatment may not amount to coercion; 
 Fraud means and includes any of the following acts committed by a 
 party to a contract or with his connivance, or by his agent with in- 
 tent to deceive another party thereto or his agent, or to induce him* 
 to enter into the contract : — 
 
 (1) The suggestion, as a fact, of that which is not true, by 
 one who does hot believe it to be true ; 
 
 (2) The active concealment of a fact by one having knowl- 
 edge or belief of the fact; 
 
 (3) A promise made without any intention of performing 
 it; . «... ■ 
 
 (4) Any other act fitted to deceive j . 
 
 (5)' Any such act or omission as the law specially declares, 
 to be fraudulent. 
 Exvlanation. — Mere silence as to facts likely to affect the willingness' of 
 638 
 
INDIAN CONTRACT ACT. 566. 
 
 & person to enter into a contract is not fraud, unless the circumstances of 
 the case are such that, regard being had to them, it is the duty of. the per- 
 son keeping silence to speak, or unless his silence is in itself equivalent- 
 to speech, 
 
 [This and the last section substantially represent English law.] 
 18. Misrepresentation means and includes — 
 
 (1) the- positive assertion, in a manner not warranted by 
 the information of the person making it, of that which 
 is not true, though he believes it to be true ; 
 
 (2) any breach of duty which, without an intent to deceive,, 
 gains an advantage to the person committing it, or any 
 one claiming under him, by misleading another to his 
 prejudice, or to the prejudice of any one claiming un- 
 der him. 
 
 (3) causing, however innocently, a party to an agreement 
 to make a mistake as to the substance of the thing which 
 is the subject of the agreement. 
 
 [This appears to represent the rules of equity, or at any rate the strong 
 "tendency of modern decisions. Sub-s. (2) seems hardly in place here. 
 The framers of the draft Civil Code of New York, from which it is taken 
 {§ 758) appear to have generalized from Bulkley v. Wilford, 2 CI. & F. 102. 
 That case, however, proceeds rather on the special duty of an agent; see 
 p. 254 above ; and the ratio decidendi is expressly that a professional agent 
 shall not take advantage of his own ignorance. There was also evidence 
 .and a finding of actual fraud.] 
 
 *19. When consent to an agreement is caused by coercion, undue [566 
 influence, fraud, or misrepresentation, the agreement is a contract 
 voidable at the option of the party whose consent was so caused. 
 A party to a contract, whose consent was caused by fraud or misrep- 
 resentation, may, if he thinks fit, insist that the contract shall 
 be performed, and that he shall be put in the position in which 
 he would have been if the representations made had been true. 
 Exception. — If such consen t was caused by misrepresen tation , or by silence 
 fraudulent within the meaning of section seventeen, the contract, never- 
 theless, is not voidable, if the party whose consent was so caused had the 
 means of discovering the truth with ordinary diligence. 
 
 Explanation. — A fraud or misrepresentation which did not cause the 
 consent to a contract of the party on whom such fraud was practiced, or 
 to whom such misrepresentation was made, does not render a contract 
 "voidable. 
 
 [This agrees with English law, save that with us the exception, if it 
 exists, is limited to cases of mere non-disclosure : p. 488 above.] 
 20. Where both parties to an agreement are under a mistake as to a matter 
 of fact essential to the agreement, the agreement in void. 
 [This section is embodied and commented upon in the text, p. 425 
 
 above.] 
 
 639 
 
567 CHAP. XI. DURESS AND UNDUE INFLUENCE. 
 
 Explained on. — An erroneous opinion as to the value of the thing Which, 
 forms the subject-matter of the agreement is not to be deemed a mistake- 
 as to a matter of fact. 
 
 21 . A contract is not voidable because it was caused by a mistake as to any 
 
 law in force in British India ; but a mistake as to a law not in 
 force in British India has the same effect as a mistake of fact. 
 
 22. A contract is not voidable merely because it was caused by one of the 
 
 parties to it being under a mistake as to a matter of fact. 
 Nothing is said as to the time within which a voidable contract 
 must be rescinded; the obligation to restore any advantage re- 
 ceived under the contract is declared in ss. 64, 65 ; but it does 
 not appear what is to happen if restitution is impossible ; as to 
 goods obtained under a voidable contract, the title of " a third 
 person who before the contract is rescinded buys them in good 
 faith of the person in possession " is secured by s. 108, exception 
 3, " unless* the circumstances which render the contract voidable 
 amounted to an offense committed by the person in possession 
 567] *or those whom he represents,'' a limitation which appears 
 to be new ; but no general principle is laid down as to rights of 
 third persons intervening. S. 66 provides that " the rescission of a 
 voidable contract may be communicated or revoked in the same 
 manner, and subject to the same rules, as apply to the communica- 
 tion or revocation of a proposal." 
 640 
 
IMPERFECT OBtiaAT'IONS. 568, 5.G& 
 
 *CHAPTEE XII. [568T 
 
 AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 Under this head we propose to deal with topics of a miscellaneous 
 kind as regards their subject-matter, and forming anomalies in the 
 general law of contract, but presenting in those anomalies some re- 
 markable uniformities and analogies of their own which, so far as- 
 we know, have not hitherto been brought into a single view. 
 
 Between contracts which can be actively enforced by the per- 
 sons entitled to the benefit of them, and agreements or promises 
 which are not recognized as having any legal effect at all, there ia 
 another class of agreements which though they confer no right of 
 action are yet recognized by the law for other purposes. These- 
 may be called Agreements of Imperfect Obligation. Some writers 
 (as Potbier) speak of imperfect obligations in the sense of purely 
 moral duties which are wholly without the scope of law : and what 
 we here call Imperfect Obligations are in the civil law technically 
 called Natural Obligations. But this term, the use of which in 
 Boman law is intimately connected with the distinction between 
 jus civile and jus gentium (a), would in English be inappropriate and 
 possibly misleading. 
 
 Where there is a perfect obligation, there is a right coupled witb 
 a remedy, i.e. an aj>propriate process of law by which the authority- 
 of a competent court can be set in motion to enforce the right. 
 
 Where there is an imperfect obligation, there' is a right without 
 a remedy. This is an abnormal state of things, making an excep- 
 tion *whenever it occurs to the general law expressed in the [56{> 
 maxim JJM jus ibi remedium. And it can be produced only by the 
 operation of some special rule of positive law (b) Such rules may 
 operate in the following ways to produce an imperfect obligation : 
 
 (re) Savigny, Obi. 1. 22 gqq, 
 
 (l>) It \fa3 once held that a purely moral obligation might gite rise to an in- 
 choate right which could be made binding arid enforceable by an express prom- 
 ise. And if this were so the statement irt the text would not be correct; but- 
 the modern authorities disavow sach a do*ctririe. See 2 Wm. Saund. 428 ; su- 
 pra, pp. 157-8. 
 
 41 641 
 
570 CHAP. XII. AGREEMENTS OF IMPERFECT OBLIGATIONS. 
 
 1. By way of condition subsequent, taking away a remedy which, 
 ■once existed. 
 
 2. By imposing special conditions as precedent to the -existence 
 •of the remedy. 
 
 3. Bj- excluding any remedy altogether. 
 
 We shall now endeavor to show what are the effects of an im- 
 perfect obligation in these three classes of cases. 
 
 I. Under the first head we have to notice the operation of the 
 Statutes of Limitation, so far as it illustrates the present sub- 
 ject (a), The statute of limitation of James I, (21 Jac. 1. c. 16, s. 
 3) enacts that the actions therein enumerated — which, with an ex- 
 ception since repealed, comprise all actions on simple contracts (6) 
 — " shnll be commenced and sued '' within six years after the cause 
 •of action, and not after. By the modern statute, 3 & 4 Wm. 4, c. 
 42, s. 3 (c), following the presumption of satisfaction after the lapse 
 of twenty years which already obtained in practice (d), it is enacted 
 that (inter alia) all actions of covenant or debt upon any bond or 
 other specialty "shall be commenced and sued" within twenty 
 years of the cause of action. We need not stop to consider the ex- 
 ceptions for disability, or the rules as to the time from which the 
 statutes begin to run : for the object throughout this chapter will 
 570] not be to define to what cases and *under what conditions 
 the laws under consideration apply, when that is abundantly done 
 in other treatises, but to observe the general results which follow 
 when they do apply. 
 
 Now there is nothing in these statutes to extinguish an obligation 
 once created. The party who neglects to enforce his right by action 
 can not insist upon so enforcing it after a certain time. But the 
 right itself is not gone. It is not correct even to say without quali- 
 
 (a) Debts contracted by an infant are often compared to debts barred by the 
 statutes of limitation : and the comparison is just to this extent, that at common 
 law they might bo rendered enforceable in much the same manner, and practi- 
 cally the authorities are interchangeable on this point. But an infant's con- ' 
 tract is in its inception not of imperfect obligation, but simply voidable. 
 
 (6) As to the extent to which the statute applies to proceedings ir; equity, 
 see Knox v. Gyo, L. R. 5 H. L. 656; [Wilhelm v. Caylor, 32 Md. 151; Han- 
 cock v. Harper, 86 111. 445 ; Story Eq. Jur. § 1520.] 
 
 (c) This section is not affected by the Beal Property Limitation Act, 1874, 
 except that procee'dings to recover rent or money Charged on land will have to 
 be taken' within twelve years: 37 & 38 Vict. c. 57, ss. 1, 8.' 
 
 (d) Bac. Abr. 5. 226 (Limitation D. 1) ; Koddam v. Morley, 1 De G. & J. 17. 
 
 642 
 
IMPERFECT OBLIGATIONS I DEBTS BARRED BY STATUTE. 570 
 
 -fication that there is no right to sue, for the protection given by 
 the statutes is of no avail to a defendant unless he expressly claims 
 •it. -Serjeant Williams, after noticing the earlier conflicts of opinion 
 .on this point, and some unsatisfactory reasons given at different 
 times for the rule which has prevailed, concludes the true reason to 
 ■be that " the Statute of Limitations admits the cause or considera- 
 tion of the action still existing, and merely discharges the defend- 
 ant from the remedy " (a). This alone shows that an imperfect ob- 
 ligation subsists between the parties after the time of limitation has 
 run out. In the case of unliquidated demands that obligation is 
 practically inoperative, since an unliquidated demand can not be 
 rendered certain except by action cr an express agreement founded 
 •on the relinquishment of an existing remedy! But in the case of a 
 liquidated debt the continued existence of the debt after the loss of 
 the remedy by action may have other important effects. Although 
 the creditor can not enforce payment by direct process of law, ho 
 is not the less entitled to use any other means of obtaining it which 
 he might lawfully have used before. Thus if he has a lien on 
 goods of the debtor for a general account, he may hold the goods 
 for a debt barred by the statute (6). And any lien or express se- 
 curity he may have for the particular debt remains valid (c). If 
 the debtor pays money to him without directing appropriation of 
 it to any particular debt, he may appropriate it to satisfy a debt of 
 
 (a) 2 Wms. Saund. 163 ; [Johnson v. Railroad Co., 54 N. T. 416]; cp. Scar- 
 pellini v. Ateheson, 7 Q. B. at p. 878 ; 14 L. J. Q. B. at p. 338, on the technical 
 •effect of a plea of the statute. It is presumed that the rule continues under the 
 new practice. 
 
 (b) Spears v. Hartly, 3 Esp. 81. 
 
 (c) Higgins v. Scott, 2 B. & Ad. 413; Seager v. Aston, 26 L. J. Ch. 809 (on 
 the statute of 3 & 4 Wm. 4); [Davis v. "Wrigley, Tex. Ct. App. 7 Bep. 796; 
 Jones u.Bank, 6 Bob. (JS. Y.) 162; and see Whittnore v. San Francisco Sav. 
 Union, 50 Cal. 145. , 
 
 "Where a note is secured by mortgage on real or personal property the fact 
 that the note becomes barred by the statute will not take away the remedy of 
 foreclosure of the mortgage: Fisher's Ex'rs. v. Mossman, 11 O. S. 42; Sparks v. 
 Pico, 1 McAllister, 497;' Thayer v. Mann, 19 Pick. 535; Corain «. Paine, 4 
 •Cush. 483; Miller v. Trustees of Jefferson College, -5 S.-& M. 651; Wilkinson 
 v. Flowers, 37 Miss. 579; Elkins v. Edwards, 8 Ga. 325; Joy ■». Adams, 26 Me. 
 330; Wood v. Augustine, 61 Mo. 46; Birnie v. Main, '29 Ark. 591 ; Richmond 
 v. Aiken, 25 Vt. 324; Whipple v. Barnes, 21 Wis. 327; Cookes v. Gulbertson 9 
 Nev. 199; Belknap v. Gletison,- 11 Conn. 160. 
 
 But in some states it is held that when the debt is barred the remedy on the 
 mortgage given to secure it is gone: see Jones on Mortgages, \ 1207.] 
 
 643 
 
571 CHAP. XII. AGREEMENTS OF IMPEBFECT OBLIGATION. 
 
 571] this kind (a) ; much more is he entitled to keep the *rooney- 
 if the debtor pays it on account of the particular debt, but not- 
 knowing, whether by ignorance of factor of law, that the creditor 
 has lost his remedy. So an executor may retain out of a legacy a 
 barred debt owing from the legatee to the testator (6). He may 
 also retain out of the estate such a debt dae from the testator to- 
 himself(c); and he may pay the testator's barred debts to other 
 persons (d) ; and this even if the personal estate is insufficient (e). 
 But though a creditor may retain a barred debt if he can, he may 
 not resist another claim of the debtor against him by a set-off of the 
 barred debt, for the right of set-off is statutory, and introduced 
 merely to prevent cross actions, so that a claim pleaded by Way of 
 set-off is subject to be defeated in any way in which it could be 
 defeated if made by action (f). This reason applies equally to all 
 other cases of imperfect obligations. Herein our law differs from.- 
 the Eoman, in which compensatio did not depend on any positive 
 enactment, but was an equitable fight derived from the jus gent- 
 ium. 
 
 (a) Mills v. Fowkes, 5 Bing. N. C. 455; Nash v. Hodgson, 6 D. M. G. 474; 
 [Eamsay v. "Warner, 97 Mass. 8, 13; Armistead v. Brooke, 18 Ark. 521.] 
 
 lb) Couftenay v. Williams, 3 Ha. 539; cp. Hose o. Gould, 15 Beav. 189. 
 [Op. Drysdale's Appeal, 14 Pa. St. 531 ; Levering v. Bittenhouse, 4 Whart. 130-3. 
 
 (e) Hill v. Walker, 4 K. & J. 166; Stahlschmidt v. Lett, 1 Sm. & G. 415 ; 
 [Distributees of Knight o. Godbolt, 7 Ala. 304; Payne v. Pusey, 8 Bush, 564.. 
 But see Batson v. Murrell, 10 Humpb. 301 ; Eogers v. Bogers, 3 Wend. 503 ; 
 Hoch's Appeal. 21 Pa. St. 280; Seig v. Aoord's Ex'r., 21 Gratt: 365, 371; Rich- 
 mond, Adm'r., Petitioner, 2 Pick. 567.] 
 
 (rf) Hill v. Walker, 4 K. & J. 166; Stahlschmidt v. Lett, 1 Sm. & G. 415;: 
 [Fairfax v. Fairfax's Ex'r., 2 Or. C. O. 25; Hod-don *. White, 11 N. H. 208, 
 213 ; Pollard v. Scears, 28 Ala. 484. Cp. Kittens Appeal, 23 Pa. St. 95 ; and see- 
 Woods v. Elliott, 49 Miss. 168 ; Byrd v. Wells, 40 Miss. 711.] 
 
 (e) Lowis v. Bumney, 4 Eq. 451. [To a petition by an administrator to sell 
 real estate of the intestate for the payment of debts, the heir may plead that, 
 the debts are barred by the statute of limitation: Heirs of Bond v. Smith, 2 
 Ala. 680; Pollard v', Scears, 28 Ala. 484; Payne®. Pusey, 8 Bush, 564; Biser*.. 
 Snoddy, 7 Ind. 442. Gontray Hodgdou v. White, 11 N. H. 208.] 
 
 (/) [Noliirw. Black-welly 31 N. J. L,170; Tfimyer v. Pollard, 8 Gratt. 460; 
 Harwell v. Steele, 17 Ala. 372; HinMey v. Walters^ 8 Watts, 260; Turnbull v.: 
 Stroheeker, 4 McCordy 210; Gilshrisl. v. Williams, 3 A. E. Marsh, 235; Taylor- 
 's. Gould, 57 Pa. &J. 152.J The defease of set-off mefet 6e specially met by re- 
 plying the statute of limitation; setf 1 WboS.- Saund. 431. 
 644 
 
DEBTS BARRED BY STATUTE. 572 
 
 • Again, the creditor's lost remedy may be revived by the act of 
 i;he debtor. The decisions on the statute of James I. have estab- 
 lished that a renewed promise to pay; or an acknowledgment from 
 which a promise can be inferred, excludes the operation of the stat- 
 ute. It was formerly held that the statute rested wholly on a pre- 
 
 isumption of payment,' and therefore that any acknowledgment of 
 the debt being unpaid, even though coupled with a refusal to pay, 
 was sufficient. But this Opinion has long since been overruled (a\ 
 The rule may be explained thus. It is settled law that a state of 
 facts on which there is an existing and complete legal liability is 
 
 ■ of itself no ground for a fresh promise to satisfy the same liability : 
 thus an express promise to pay the sum due on an account stated 
 
 ■creates no new cause of action, there being already in contempla- 
 tion of law a promise to pay on request (6) But in the case of a 
 'barred debt this reason for a new promise being inoperative does 
 not exist : the original remedy is gone, while the original consid- 
 eration *remains as a sufficient foundation for a subsequent [572 
 promise (c). Since the acknowledgment operates, according to 
 
 ^r * ' * 
 
 (a) 2 Wma. Saunds. 183, 184. 
 
 (6) Hopkins v. Logan, 5 M. & W. 24; for another instance, see Deacon v. 
 -Gridley, 15 C. B. 295; 24 L. J. C. P. 17; [Eussell v. "Buck, II Vt. 166; Ford v. 
 Garner, 15 In'd. 298; Kunnamaker v. Cordray, 54 111. 303.] 
 
 (c) [But this explanation is open to objection. It is hard to see why, if an 
 
 ■ enforceable obligation is not a good consideration for an express promise to 
 perform it, and this is not doubted, an unenforceable obligation should be. 
 True, a promise to perform an enforceable obligation would not (see supra, pp. 
 161-164), and a promise to perform an unenforceable obligation would be a 
 good consideration for a counter-promise. But the promise to perform the un- 
 enforceable obligation would have for its consideration, not the previously ex- 
 isting obligation, but the counter-promise; it by no means follows that a prom- 
 ise to perform an unenforceable obligation is binding without a new considera- 
 tion. It is submitted that an express promise to perform an existing obligation 
 merely in consideration of the obligation is always upon a past, i. a. upon no 
 -consideration ; see supra, p. 158. Again, how consistently with this explana- 
 tion, can effect be given to a new promise made within six years from the time 
 
 • of making the original promise. After six years from the time of making the 
 
 ■ original promise it would be barred by the statute, and the new promise having 
 been a fresh promise to -satisfy an existing and complete legal liability, by the ex- 
 planation is admitted to be void for want of consideration. See Case v. Cush- 
 man, 1 Pa. St. 241, 246, where the court so reasoning, held that no new promise 
 -during the six years would suspend the running of the statute. 
 
 It is suggested that the true theory is that the statute of limitations, while not 
 slouching the obligation of the contract, interposes a bar to its enforcement, of 
 
 645 
 
572 OHAP. XH. AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 the modern view; as a new promise, it is not effectual unless made-' 
 before the commencement of the action (a). 
 
 The modern law has been concisely stated by Mellish, L. J. 
 " There must be one of three things to take the case out of the stat- 
 ute. Either there must be an acknowledgment of the debt, from- 
 which a promise to pay is to be implied ; or, secondly, there must 
 be an unconditional prom'ise to pay the debt ; or, thirdly, there 
 must be a conditional promise to pay the debt, and evidence that 
 the condition has been performed (6). The promise must be to pay 
 the debt as ex debito justitice; a promise to pay as a debt of honor 
 is insufficient, as it excludes the admission of legal liability (c). 
 When the promise is implied, it must be as an inference of fact, not 
 of law; the payment of interest under compulsion of law does not. 
 imply any promise to pay the principal (d). 
 
 The acknowledgment or promise, if express, must be in writing- 
 and signed by the debtor (9 Geo. 4, c. 14, s. 1) or his agent duly 
 authorized (Mercantile Law Amendment Act, 1856, 19 & 20 Vict. 
 c. 97, s. 13). But an acknowledgment may still be implied from, 
 the paj'ment of interest, or of part of the principal on account of 
 the whole, without any admission in writing (e). 
 
 which the promisor may avail himself, but which he may waive, and that a new 
 promise, whenever made, is a waive"rof all benefit of the running of the statute 
 up to that time, the liability, however, continuing always on the original prom- 
 ise. See Yaw v. Kerr, 47 Pa. St. 333; Ilsley o. Jewett, 3 Met. 439; Foster v. 
 Shaw, 2 Gray, 148, 153. 
 
 The theory stated in the text has, however, been very generally sanctione'*' 
 by the courts ; see Angell on Limitations, Ch. XX.] 
 
 (a) Bateman v. Pinder, 3 Q. B. 574; 11 L. J. Q. B. 281. 
 
 (b) Mitchell's claim, 6 Ch. at p. 828; and see "VVilby v. Elgee, L. K. 10 C. P. 
 497; Chsisemore ». Turner (Ex. Ch.) L. R. 10 Q. B. 500, 506, 510, 520, which, 
 also shows how much difficulty there may be in determining in a particular- 
 case whether there has been an unconditional promise : Quincey v. Sharpe, 1 
 Ex. D. 72; Skeet v. Lindsay, 2 Ex. D, 314; [Bell v. Morrison, 1 Pet. 351, 362 j 
 Carroll v, Forsyth, 69 111. 127 ; Meyerhoff v. Froehlich, 4 C. P. D. 63, 66, per- 
 Cotton, L. J.] 
 
 (c) Maccord v. Osborne, 1 C. P. D. 569 (on Lord Tenterden's Act). 
 
 (d) Morgan v. Rowlands, L. R. 7 Q. B. 493, 498; [Anderson v. Baxter, 4 Oreg. 
 105, 113. From an acknowledgment drawn out from the debtor when testifying: 
 as a witness no promise can be implied: Bloodgood v. Bruen, 8 N. Y. 362. 
 
 A new promise made under the mistaken belief that the creditor's remedy is- 
 not yet barred will take the case out of the statute : Langston v. Aderhold, 60* 
 Ga. 376.] 
 
 (e) 2 Wms. Saund. 181, 187; see also the notes to "Whitcomb v. WhHing, ik 
 
 646 
 
STATUTES OP LIMITATION AND LEX FORI. 573 
 
 The more recent, statute which limits the time for suing on con- 
 tracts by specialty contains an express proviso as to acknowledg- 
 ment and part payment (3 & 4 Wm. 4, c. 42, s. 5) (a). The cases 
 as to acknowledgment, etc., under the; statute of James, and Lord 
 Tenterden's Act, are not applicable to this proviso. Here the 
 operation of the acknowledgment is independent of any new 
 promise to pay, and the action in which the acknowledgment is 
 *to be operative must be founded on the original obligation [57$. 
 alone (&). 
 
 The act for the Limitation of Actions and Suits relating to Eeal 
 Property (3 & 4 Wm. 4, c. 27) does not only bar the remedy, but 
 extinguishes the right at the end of the period of limitation (s. 34, 
 see Dart V. & P. 402). It is therefore unconnected with our pres- 
 ent subject. 
 
 We have seen that by the operation of the statutes of limitation 
 applicable to contracts the right itself is not destroyed, but only 
 the conditions of enforcing it are affected. The law of limitation 
 is a law relating not to the substance of the cause of action, but to- 
 procedure. Hence follows a consequence which is important in 
 private international law, namely that these enactments belong to 
 the lex fori, not to the lex contractus, and are binding on all persons- 
 who seek their remedy in the courts of this country. A suitor in 
 an English court must sue within the time limited by the English 
 statute, though the cause of action may have arisen in a country 
 where a longer time is allowed (c). Conversely,' an action brought 
 in an English court within the English period of limitation is 
 maintainable although a shorter period limited bj r the law of the 
 place where the contract was made has elapsed (d), even if 
 
 Sm. L. C. 574 sqq. [7th Am. ed. 948 ; Williams v. Gridley, 9 Met. 482 ; Bank 
 *. Ballou, 49 N. Y/. 155 ; Ketcham v. Hill, 42 Ind. 64, 81 ; Sibley v. Lumbert, 30 
 Me. 253.] 
 
 (a) See Leake on Contracts, 542 [2d ed. 996-997] ; Pears v. Laing, 12 Eq. 41. 
 
 (6) Koddam v. Morley, 1 De G. & J. 1, opinion of Williams and Crowder, 
 J J. at p. 15. 
 
 (c) British Linen Co. v. Drummond, 10 B. & C. 903; [McElmoyle v. Cohen, 
 13 Pet. 312; Mc Arthur v. Goddin, 12 Bush, 274; Kobinson v. Peyton, 4 Tex. 
 276.] 
 
 (d) Huber v. Steiner, 2 Bin™. 1ST: C. 202 (debt barred by French law) ; [Bank 
 v. Carey, 5 C. P. D. 429; Townsend ». Jemison, 9 How. 407; Miller v. Bren- 
 ham, 68 N. Y. 83; Graves v. Graves' Ex'rs., 2 Bibb, 207; Bulger v. Roche, 11 
 Pick. 36; Lincoln v. Battelle, 6 Wend. 475; Hendricks. v. Comstock, 12 Ind. 
 
 647 
 
574 CHAP. XII. AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 a competent court of that place has given judgment in favor of the 
 defendant on the ground of such period having expired (a). 
 
 The House of Lords, as a Scotch court of appeal, has had to de- 
 cide a similar question as between the law of Scotland and the law 
 of France. It was held that the Scottish law of prescription ap- 
 plied to an action brought in Scotland on a hill of exchange drawn 
 •and accepted . in Prance, the right of actjon on which in France 
 bad been saved by judicial proceedings there (b). In, the case 
 -where the shorter of the two periods of limitation is that allowed 
 574] by the foreign law governing the substance of the contract, 
 and that period has elapsed, it is of course necessary to ascertain 
 that the foreign law is analogous to our own in its operation, and 
 merely takes away the remedy without making the contract void 
 at the end of the time of prescription. But it is considered that 
 an actual destruction of the right would be so inconvenient and un- 
 reasonable that it may almost be presumed that such is not the 
 ■operation of the law of any civilized state ; and the English courts 
 would not put such a construction on the foreign law unless com- 
 pelled so to do by very strong evidence (c). 
 
 238; Leroy v. Crown inshield, 2 Mason, 151; Paine v. Drew, 44 N. H. 306; 
 Crocker v. Arey, 3 R. I. 178; McMerty ■». Morrison, 62 Mo. 140; Jones v. 
 Jones, 18 Ala. 248; Medbury v. Hopkins, 3 Conn. 472; Thibocleau v. Levasseur, 
 36 Me. 362; Perkins v. Guy, 55 Miss. 153.] 
 
 In Harris v. Quine, L. B.. 4 Q. B. 653, Cockburn, C. J., expressed some doubt 
 as to the principle, admitting, however, that tha.rule was settled by authority. 
 Savigny, too (Syst. 8. 273), is for applying that law which governs the substance 
 of the contract. [And see Leroy v. Crowninshield,_2 Mason, 151, 175, per 
 Story, J. 
 
 "A state statute which enacts that 'no action shall be maintained on any 
 judgment or decree rendered by any court without this state against any per- 
 son who,iat the time of the commencement of the action in which such judg- 
 ment or decree was or shall be rendered, was or shall be a resident of this state, 
 , in any case where the cause of action would, have been , barred by any act of 
 ■limitation of this state, if such suit had been brought therein,' is unconstitu- 
 tional and void, as destroying the right of a party to enforce a judgment regu- 
 larly obtained in another state, and as conflicting therefore with the provision 
 of the constitution (art. TV., $ 1), which ordains that ''full faith and credit shall 
 be given in each state to the public acts, records, and judicial proceedings of 
 every other state :' " Christmas v. Bussell, 5 Wall. 290.] 
 
 («) Harris v. Quine, L. E., 4 Q. B. 653 (debt barred by Manx law) ; [but see 
 .Sweet v. Brackley, 53 Mo. 346.] 
 
 (b) Don i?. Lippmann, 5 01. & F. 1. See also 2 Wins. Saund. 390. 
 
 (c) Hubev v. Steiner, 2 Bing. IS. C. 202, where it was in vain attempted to 
 
 648 - 
 
STATUTE OF FRAUDS, S. 4. 575 
 
 We shall presently see that analogous questions concerning the 
 
 lex fori may arise in other cases of imperfect obligations. 
 
 2. Under the second head fall the cases of particular classes of 
 
 ■contracts where the law requires particular acts to be done by the 
 parties or one of them (in respect of the form of the contract or 
 otherwise) as conditions precedent to the contract being recognized 
 as enforceable. 
 
 A.. The most important of the enactments thus imposing special 
 
 •conditions on contracts is the fourth section of the Statute of Frauds 
 (29 Car. 2, c. 3). 
 
 The fourth section enacts that after the date there mentioned 
 " no action shall be brought whereby to charge any executor or adminis- 
 trator 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 s.ale of lands, tenements, or hereditament's, or any 
 interest in or concerning them ; or upon any agreement that is not to be 
 
 -performed within the space of one year from the making thereof; unless 
 the agreement upon which such action shall be brought or some mem- 
 orandum or note thereof shall be in writing, and signed by the party to 
 
 ■be charged therewith or some other person thereunto by him lawfully 
 
 ^authorized." 
 
 The effect of the 17th section (16th in the Eevised Statutes) 
 is generally understood to be different. It docs not only pre- 
 vent contracts for the sale of goods of the value of 107. or 
 *upwards (Lord Tenterden's Act, 9 Geo. 4, c. 14, s. 7, has the [575 
 
 -effect of substituting " value ' for " price," Harman v. Eeeve) (a), 
 from being sued upon except under the conditions specified, but 
 
 • enacts that they shall not " be allowed to be good " : and, although 
 it is has never been actually so decided, it' is the accepted opinion 
 in this country that where the conditions are not satisfied the 
 
 •..show that by the French law of prescription the right was absolute'.y extin- 
 guished. [See also MeMerty v. Morrison, G2 Mo. 140; Hendrick v. Comstock, 
 12 Ind. 238; Lincoln v. Battello, Wend. 475; Perkins v. Guy, 55 Miss. 153. 
 For instances where, however, the right was held to have been extinguished, 
 see Baker v. Stonebraker's Adm'rs., 36 Mo. 338; Brown v. Parker, 28 Wis. 21. 
 In Shelby u. Guy, 11 Wheat. 361, it was held that as five years', bonq, fide 
 possession of a slave constitutes a title, by the laws of Virginia, upon which 
 the possessor may recover in detinue, this title may be set up by the vendee of 
 4such possessor in the courts of Tennessee; ace. Fears v. Sykes, 35 Miss. 683.] 
 
 (a) 18 C. B. 587, 595; 25 L. J. C. P. 257. 
 
 649 
 
Q75 CHAP. XII. AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 agreement is absolutely void as against the party who has. not. 
 signed (a). The cases of part acceptance of the goods or part pay- 
 ment of the price are expressly provided for, either of these liaving- 
 the same effect as a duly made memorandum in writing (b). 
 
 We now return, to the fourth section. For the 6ake. of brevity 
 we shall use the term " informal agreement " to signify any agr o- 
 ment which comes within this section, and does not comply with 
 its requirements. 
 
 For some time it was not fully settled what was the eifect of this 
 enactment on informal agreements. There was some authority for- 
 saying it made them void. It was never held necessary in the- 
 courts of law for a defendant sued on an informal agreement to- 
 plead the statute specially, as in the case of the statutes of limita- 
 tion : and it has been held (before the C. L. P. Act) that a special' 
 plea was not only unnecessary but bad as an "argumentative de- 
 
 (o) Where one party has signed and the other not, the contract is said to he- 
 good or not at the election of the party who has not signed — i.e., he may sue- 
 the other who has signed, though the other dan not sue him : Benjamin on Sale, 
 188 [2d Am. ed., § 255]. This is also the case Under s. 4 : Laythoarp v. Bryant.. 
 [See supra, p. 145.] * 
 
 (b) The distinction between the two sections is pointedly taken in Laythoarp. 
 v. Bryant, 2 Bing. (N. C.) 735, 747, and Lerouxu. Brown, 12 0. B. 801, 824, 826. 
 A recent American writer (9 Am. Law Eev. 435) has ingeniously maintained, 
 that s. 17 is only a law of procedure. His strongest authority is Bailey v. 
 Sweating, 9 C. B. N. S. 843, 859; 30 L. J. C. P. 150, 154, where Williams; J.,. 
 certainly showed an inclination to that view. The decision itself is .that when 
 once the statute is satisfied the contract is referred to the date, not of the mem- 
 orandum or other act, but of the verbal agreement. Neither this, however, nor- 
 any other case cited by the writer in question, seems to go far enough to sup- 
 port his contention; See, too, Coombs v. Bristol & Exeter Ry. Co., 3 H. & N. 
 510; 27 L. J. Ex. 401, showing that the operation of s. 17 is not confined to™ 
 actions on the contract itself, but affects rights of property as against third 
 persons. [Sec also O'Neil •-. Railroad Co., GO N. Y. 138; Mahan v. United. 
 SUites, 16 Wall. 143; Hicks v. Cleveland, 48 N. Y. 84 ; Ely v. Ormsby, 12 Barb. 
 570; Browne on Stat, of Frauds, \ 138/, sqq. 
 
 In Townsend v. Hargrayes, 118 Mass. 325, it is held that both sections affect, 
 only the remedy, and not the validity of the contract; but in Moughtaling v. 
 Ball, 20 Mo. 563, it was expressly decided that a sale of goods made in Jllinois- 
 and valid there should be enforced in Missouri^ although it would have been 
 void in the latter state under what corresponds to the,17tli section, of the, stat- 
 ute. See further, Allen v. Schuchardt, 1 Am. L. Beg. N. S. 13, per Nelson, J_ 
 (nff'd. 1 Wall. 359, without, however, any reference to this question), and Penny: 
 .■a. Williams, 5 Allen, 1, per Chapman, J.] ■ 
 
 650 
 
STATUTE OF FRAUDS, S. 4. ".ihj 575- 
 
 nial" of the contract declared upon (a). (Since the Judicature 
 Aclis the defense of the statute must always be distinctly raised on 
 the pleadings) (b). Moreover, an action can not be *main- [57ft- 
 tainod when, although it is not brought to enforce any right ex con- 
 tractu, the right, which is the foundation of the plaintiff's claim, 
 depends on an informal agreement. In Carrington v. Boots (c), the^ 
 plaintiff sued in trespass for seizing his horse and cart: the de- 
 fendant pleaded that they were incumbering and doing damage on 
 his ground : the plaintiff replied a verbal agreement that the de- 
 fendant should sell the crop and grass growing there to the plaint- 
 iff, and that the plaintiff might enter with his horse and cart to ttike- 
 them. It was held that this agreement was for the sale of an in- 
 terest in land within s. 4, and that the plaintiff could not set it up, 
 though it might have been available, as a license only, in answer to- 
 an action for trespass (d). Both hero^uid in the later case of fieade- 
 v. Lamb, above cited the judges said distinctly enough that in- 
 formal agreements were not only not enforceable but void. And 
 so Sir W. Grant appears to have thought in Kandall v. Morgan (e). 
 These dicta are not consistent with the decisions to be presently 
 mentioned in.which the existence of an imperfect obligation is im- 
 plied. And there had also been judicial expressions of opinion the 
 other way. But it is not necessary to notice these, for' the point 
 was expressly decided by the Court of Common Pleas in Leroux v. 
 Brown (/), where the earlier dicta are also considered. The action 
 was on a contract not to be performed within one year, and mude- 
 in France, where, by the French law, the plaintiff might have sued 
 on it. For the plaintiff it was argued that s. 4 of the Statute of 
 Frauds applied to the substance of the contract, and therefore, on 
 general principles of private international law, did not affect con- 
 tracts which were made out of England, and which as to their sub- 
 
 Co) Reade v. Lamb, 6 Ex. 130; 20 L. J. Ex. 161. 
 
 (b) Order xix. r. 23. As to the former practice in equity, see Johnasson v. 
 Bonhote (O.A.), 2 Ch. JD. 298. Once properly raised (eg. by demurrer) the 
 defense is available without further repetition at any subsequent stage of the- 
 proceedings: lb. 
 
 (e) 2 M. & W. 248. 
 
 {«!) Cp. Crosby v. Wadsworth, 6 East. 602; [Bucko.Pickwell, 27 Vt. 157.] 
 
 (e) 12 Ves. at p. 73. 
 
 (/) 12 0. B. 801 ; 22 -U J. C. P. 1; [Ace' on a similar state of facts, Klee- 
 man v. Collins, 9 Bush, 460.] 
 
 651 
 
"577. CHAP. XII. AGREEMENTS OP IMPERFECT OBLIGATION. 
 
 -stance were to be governed by the law of the place where t'bey, 
 were made. But for the defendant it was answered that this enact- 
 ment, like the Statute of Limitation, only affected the remedy, and 
 was therefore a law of the procedure of the English courts, and as 
 such binding on all suitors who might seek to enforce their rights 
 in those courts: the agreement might be good enough for, any 
 other purpose, but the plaintiff could not sue on it ;in England. 
 577] And this View was adopted by the *Court. Jervis, C. J., said : 
 " The statute in this part of it does not say that unless thoserequis- 
 ites are complied with the contract shall be void, but merely that no 
 action shall be brought upon it. . . . The fourth section relates 
 •only to the procedure and not to the right and validity of the con- 
 tract itself." It will be observed that the plaintiff was here in the 
 -curious position of contending, in order to support his right to. re- 
 cover on a contract made in France, that it would have been abso- 
 lutely void if made in England (a). The decision in Leroux v 
 Brown, at least taken together with the reasoning by which it was 
 ..arrived at, seems to involve the following propositions as corol- 
 laries : 
 
 (a) A foreign or colonial court would enforce an English agree- 
 ment, notwithstanding that it was informal under s. 4 of the Stat- 
 ute of Frauds, if it had the general requisites of a valid contract 
 in English law, and was not informal according to the local law of 
 procedure (6). 
 
 (/}) An English court would enforce a foreign agreement, if en- 
 forceable by the foreign law applicable to the substance of the agree- 
 ment, notwithstanding that if made in England it would have been 
 void under s. 17 (c). (This would not be inconsistent with Hope 
 v. H<>pe (d), which only shows that English courts will not enforce 
 any contract, to whatever law it should be referred, which contains 
 " any material provision tending directly to infringe within 
 England the policy of the English law :'' the expression of Turner, 
 L. J., that a contract must be " consistent with the laws and policy 
 of the country in which it is sought to be enforced," means, as ap- 
 
 (a) Leroux v. Brown was doubted by "Willes, J., in Williams, app. "Wheeler, 
 -resp. 8 C. B. N. S. 299, 316. .Savigny, Syst. 8. 270, also takes the opposite view. 
 (6) [See Downer-i). Chesebarough, 36 Conn. 39, 45-46; Work v. Cowhick, 81 
 111. 317, 320, per Dickey. J.; contra, Allshouse v. Ramsay, 6 Whart. 331.]. 
 
 (c) [Houghtaling v. Ball, 20 Mo. 56.3, supra, p. 575,'note (6).] 
 
 (d) 8 D. M. G. 731, 740, 743; [supra, pp. 335, 338.] 
 
 632 
 
INFORMAL . AGREEMENTS UNDER STATUTE OF FRAUDS. 578- 
 
 pears by the context, nothing more extensive. The agreement there- 
 inquestion was made in France between an Englishman and his- 
 wife, and provided in effect for the collusive conduct of a divorce 
 suit in England.) 
 
 It was even argued in one recent case that the words " no action 
 shall be brought" confine the operation of the statute to civil pro- 
 cess, so that an informal agreement for service not to be performed 
 within a year might be enforced by criminal process under the 
 Master and Servant Act, .1867. But the Court held that such a 
 construction would be too unreasonable, and the *statute [57$ 
 must mean that informal agreements are not to be enforced in any 
 way (a). 
 
 It being established that the informal agreements we are consid- 
 ering are not void, it follows that they give rise to imperfect obli- 
 gations. We will now indicate the results. We have seen that 
 neither the obligation itself, nor any right immediately founded on 
 it, can be directly enforced. But it is recognized for the purpose 
 of explaining any thing actually done in pursuance of it, and any 
 thing so done may in many cases be a good consideration for a new 
 obligation on a subsequent and distinct contract, or a sufficient 
 foundation for a new obligation quasi ex contractu (b), 
 
 a. Money paid under an informal agreement can not be recovered 
 back merely on the ground of the agreement not being enforce- 
 able (c). Thus if a responsibility has been assumed and executed 
 under a verbal guaranty, the guarantor can not recover back the 
 money paid by him (d). So a purchaser can not recover a deposit 
 paid on an informal agreement for the sale of land, the vendor re- 
 fa) Banks v. Crosslandj L. E., 10 Q. B. 97. The Act i9 now repealed by the 
 Employers and Workmen Act, 1875, 38 & 39 Vict. c. 90. Qu. whether the de- 
 cision be applicable to the malicious breaches of contract in particular cases 
 which are made substantive offenses by the Conspiracy and Protection of Prop- - 
 erty Act, 1878, 38 & 39 Vict. c. 86. 
 (5) [Consult BfoWhe On the Stat, of Frauds, ch. VIII.] 
 
 (c) [Mueller v. Wiebracht, 47 Mo. 468. " The statute of frauds does not af- 
 fect the common law right of retainer by aii administrator:" Berry v. Gfaddy, 
 1 Mot. Ky. 553. 
 
 rio a creditor" receiving" a pHymo'ftt from his debtor, without any direction as to- 
 its application, hiay app'ty it to" such a debt: Hftyne's v. Nice, 100 Mass. 327; 
 Murphy ft Webber, 61 M& 478. Op. SApta-, pp. 570, 571.] 
 
 (d) Shaw v. Woodcock, 7' S. <fc C. ?3, 88, 84; cp. Sweet v. Lee, 3 M. <SS GK 
 452. [■' One who has verbally guaranteed the debt of another, At his 1 tfequest,.- 
 
 653 
 
.579 CHAP. XII. AGREEMENTS' OF IMPERFECT OBLIGATION. 
 
 maining ready and willing to complete (a). And not only can the 
 •one party keep money actually paid to him by the other, but if 
 money is paid by A. to B. in order to paid over to be C. in pursuance 
 •of an informal agreement between A. and 0. which C. has executed, 
 then 0. can recover it as money received to his use (6). In Griffith v. 
 Young (c) the plaintiff was the defendant's landlord. ...The defend- 
 ant wished to assign to one P., which he could not do without the 
 plaintiff's consent. It was verbally agreed that P. should pay the 
 defendant 10QI. for good-will, out of which the defendant was to 
 pay 401. to plaintiff for his consent to the assignment. ■ P. know- 
 ing of this agreement paid the 100L to the defendant: it was held 
 that the defendant was liable to the plaintiff for 40Z. in an action 
 for money received to his use. Lord Bllenborongh said: "If one 
 579] agree to receive money for the use of another *upon consider- 
 ation executed, however frivolous or void the consideration might 
 have been in respect of the person paying the money, if indeed it 
 were not absolutely immoral or illegal, the person so receiving it 
 can not be' permitted to gainsay his having received it for the use 
 -of that other." 
 
 On the same principle, if on the faith of an informal agreement 
 money has been paid in advance to a party who afterwards refuses 
 
 may pay the same and recover the amount so paid in an action against the 
 -original debtor:" Beal v. Brown, 13 Allen, 114. 
 
 " Where one summoned as trustee made answer that a debt was due from 
 him to the defendant, hut that he had verbally promised and he considered 
 himself bound to pay a debt to a greater amount due from the defendant to a 
 third person, it was held that he was not obliged to set up the statute of frauds 
 to avoid this promise, and that if he chose not to avail himself of it he was not 
 ■ chargeable as trustee:" Cahill v. Bigelow, 18 Pick. 369. 
 
 A party who has entered into an agreement which he can not be compelled 
 to perform, because it is within the statute of frauds, and not in writing, is.not 
 obliged, in behalf of a third person not interested in the contract, to take that 
 objection, nor can such third person take advantage of the statute on that ac r 
 count, to avoid a collateral liability to him : Tibbetts v. Flanders,:18 N. H. 284; 
 and see Chicago. Dock Co. v. Kinzie, 49 111. 289 ; Ames v. Jackson, 115 Mass. 
 508, 512; Houser v. Lamont, 55 Pa. St. 311; Bohannon -o. Pace, 6 Dana, 194; 
 Lefferson v. Dallas, 20 O. S. 68 ; Lavender v. Hall, 60 Ala. 214.] 
 
 (a) Thomas v. Brown, 1 Q..B. D. 714; [see Coughlin p. Knowles, 7 Met. 57; 
 Abbott v. Draper, 4 Denio, 51; Venable-fc. Brown, 31 Ark. 564; Whilnell v. 
 Bigham, 6 T. B. Mon. 191 ; Gray v. Gray, 2 J. J. Marsh. 21 ; Plummer v. Buek- 
 nam, 55 Me. 105;,Galway v. Shields, 66 Mo. 313; Cobb v. Hall, 29 Vt. 510; 
 .Sims v. Hutchins, ,8 S. & M. 328; Green v. Railroad Co., 77.N. C. 95.] 
 (A) [Garrett's Adm'rs. v. Garrett, 27 Ala. 687.] (e) 12 East. 513. 
 654 
 
INFORMAL AGREEMENTS UNDER STATUTE OP FRAUDS. 580 
 
 -or fails to perform his part of it, or has been expended on .his ac- 
 count, it is Conceived that proof of the L agreement may be ad- 
 mitted to show what was in fact the consideration which has 
 failed (a). :••,: 
 
 b. The execution of an informal agreement may be shown as a 
 fact, and the party who has had some benefit from such execution, 
 so as in fact to get what he bargained for,' can not treat the bar- 
 gain as a nullity. Thus the delivery of possession under an in- 
 formal agreement for the sale of land is a good consideration for a 
 promissory note for the balance of the purchase-money (b). It 
 was held in the case cited that the bargain was for a future convey- 
 .ance, and that the defendant, who did not deny the plaintiffs' alle- 
 gation that they Were willing to convey, had got all he bargained 
 for. 
 
 The same ho'ds- of an account stated. In Cocking v. Ward (c), 
 there was an oral agreement by an incoming tenant from year to 
 year to pay £100 to the outgoing tenant : it was held that the 
 agreement was within s. 4 of the statute, and the outgoing tenant 
 could not recover the £100 on the agreement itself, but that on au 
 -account stated he could. 
 
 Again, money due simply under an informal agreement from the 
 plaintiff, to the defendant can not of course be set off; but the per- 
 formance of an informal agreement by the defendant may be good 
 as an accord and satisfaction. In Lavery v. Turley (d), the plaint- 
 iff sued for goods sold, etc. : the defendant pleaded an equitable 
 plea showing that in pursuance of an agreement between the par- 
 ties (which turned out to be verbal) the defendant had given up to 
 the plaintiff possession of a house and premises in *satisfac- [580 
 
 (a) See Pulbroi.k v. Lawes, 1 Q. B. D. 284 ; [Parkevw. Tainter, 123 Mass. 
 185; White v. Wieland. 109 Mass. 291 ; Cook v. Doggett, 2 Allen, 439; Kidder 
 v. Hunt, 1 Pick. 328; Moody v. Smith, 70 N. Y. 598; Smiths. A dm' r. of Smith, 
 •28 N. J. L..208; Hairston v. Jaudon, 42 Miss. 380; Hawley v. Moody, 24 Vt. 
 £03; Jellison'o. Jordan, 68 Me. 373; Luey c.Bundy, 9 N. H. 298; Barickman 
 v. Kuykendall, ,6 Blaekf. 21.] 
 
 (b) Jones v. Jones, 6 M. & W. 84; [Bidelin v. Olarkson's Exr's, 3 B. Mon. 
 SI; Gillespie v. Battle, 15 Ala. 276; Oft v. Garland, 7 Mo. 28. 
 
 In an action for use' and occupation of land, the existence of a parol agree- 
 ment may be .proved to show that the defendant entered by permission of the 
 plaintiff': Little v. Martin, 3 Wend. 219; Whitney v. Cochran, 1 Scam. 209.] 
 
 (c) 1 C. B. 858; 15 L. J. C. P. 245. 
 
 (d) 6 H. & "N. 239 ; ; 30 L. J. Ex. 49. . fea; , : , 
 
 655 
 
580 CHAP. XII. AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 lion of the causes of action sued upon. The plea was held good 
 and it seems it was good enough at law (per Brarawell and Chan- 
 nell, BB). Pollock, 0. B., said : " It is pleaded as a fact that tl>e- 
 defendant performed the agreement and the plaintiff accepted such" 
 performance in satisfaction. The objection that the agreement wa& 
 not in writing is got rid of. The fourth section of the Statute of 
 Frauds does not exclude unwritten proof in the case of executed 
 contracts " (a). This of course does not mean that the agreement 
 itself can in any case be sued upon (a). 
 
 c. It is a well known doctrine of equity that one who has partly 
 performed an informal agreement is entitled to and can sue for a 
 specific performance at the hands of the other party, if the acts of 
 part performance have been done on the faith of an existing agree- 
 ment, and have been of such a kind that the parties can not be re- 
 stored to their original position. This seems to be the real meaning 
 of the distinctions as to what is or is not a sufficient part perform- 
 ance (6). The statement of the law in one modern case (c), where 
 payment of increased rent by a yearly tenant was held a sufficient 
 part performance of an agreement for a lease, is difficult to explain 
 
 (a) Cp. Souoh v. Strawbridge, 2 C. B. 808, 814; 15 L. J. G. P. 170. and re- 
 marks on the dictum there in Sanderson v. Graves, L. E. 10 Ex. 234, 238, 241. 
 [" The statute of frauds has no application to a contract which has been fully 
 performed on both sides:" Stone v. Dennison, 13 Pick. 1. 
 
 When an agreement within the statute has been fully performed by one of 
 the' parties, and the benefit thereof has inured to the other, so that in the ab- 
 sence of an express promise of compensation one would have been implied, (see- 
 Xiddle v. Needhara, 39 Mich. 147); an action lies in favor of the party who 
 lias performed: Towsley v. Moore, 30 O. S. 184; King v. Brown, 2 Hill, 485; 
 Cufran v. Curran, 40 Ind. 473; Brown v. Bell, 20 Johns. 338; King v. Smith, 
 33 Vt. 22,25 ; Butler v. Lee, 11 Ala. 885; Worden v. Sharp, 56 111. 104; Carter 
 v. Brown, 3 S. C. 298. . „ 
 
 Ifl the case of an agreement of hiring and service not to be performed within 
 a year, if, after part performance thereof, the employer refuses to go on, the other- 
 party may recover upon a quantum ■meruit: Williams v. Bemis, 108 Mass. 91; 
 Hambell ,*. Hamilton, 3 IJalnst, 501 ; W. B. Steel Works v. Atkinson, 68 111. 421. 
 But not if the plaintiff himself has refused to go oh, the defendant having beefl 
 willing W perform the agreement: Abbott v. Inskip, 29 O. S. 59; Mack v.- 
 Bragg, 30 Vt. 571; Gftlvin i>. Prentice', 45 !N. Y. 162; Swanzfey v. Moore, 22 111. 
 63-; eofttra, Kings. Welcome, 5 Gray, 41; T&gue v. Hayward, 25 Ind. 427; 
 Carries v. Lamsoti, 16 Conn. 246; ep. Clark v. Terry, 25 Conn. 395.] 
 
 {t) See the atiihtyrHies collected, Dart V. & P. 2. 1023; [Pomeroy on Spec, 
 Perf., 1 103— \ 135.] 
 
 (c) Nunn v. Fabian, 1 Ch. 35 ; [and see" Spear v. Qrendorf" 26 Md. 37.] 
 
INFORMAL AGREEMENTS UNDER STATUTE OF FRAUDS. 581 
 
 on this principle, but is also difficult to reconcile with the settled 
 rule that in the case of an agreement for sale payment of even the- 
 whole purchase-money will not do. The true ground of the de- 
 cision, on which it may well stand, seems however to be this : the- 
 part performance consists not in the payment itself, but in a pos- 
 session which, though continuous in time with the old possession 
 of the plaintiff as yearly tenant, is in fact referable to the new 
 agreement; and the payment of increased rent shows when the- 
 character of the possession was thus changed (a). This doctrine 
 of part performance is not in direct contradiction of the Statute of 
 Frauds. It would be erroneous to say that a court of equity ac- 
 cepts proof *of an oral agreement and part performance as [581 
 a substitute for the evidence required by the statute. The plaint- 
 iff's right in the first instance rests not on a contract but on a princi- 
 ple akin to estoppel ; the defendant's conduct being equivalent to- 
 a continuing statement to some such effect as this : It is true that 
 our agreement is not binding in law, but you are safe as far as I am 
 concerned in acting as if it were. A man can not be allowed to set 
 up the legal invalidity of an agreement on the faith of which he 
 has induced or allowed the other party to alter his position (6). It 
 is but another application of the same principle of equity which i* 
 carried out in cases of representation independent of contract (see 
 j>. 583, below) and even of mere acquiescence. In equity an owner 
 may be estopped by acquiescence from asserting his rights, although 
 there has not been any agreement at all (c). This also explain* 
 
 (a) On the general theory of possession as constituting part performance, see- 
 per Jessel, M. R., Ungley v. Ungley, 5 Ch. D. at p. 890 : •' The reason is that 
 possession by a stranger is evidence that there was some contract, and is such 
 cogent evidence as to compel the Court to admit evidence of the terms of the 
 contract, in order that justice may be done between the parties." 
 
 (J>) Caton v. Caton, 1 Ch. at p. 148; Morphett „. Jones, 1 Swanst. at p. 181; 
 Dale v. Hamilton, 5 Ha. at p. 381 ; accordingly the cases on estoppel at law are 
 compared by Lord Cranworth, in Jorden v. Money, 5 H. L. C. 185, 218, and by 
 Lord Campbell, in Hggott v. Stratton, 1 D. F. J. 33, 49; [Glass v. Hulbert, 
 102 Mass. 24; Potter v. Jacobs, 111 Mass. 32, 37; Tate v. Jones, 16 Ela. 216, 
 242; Semmes v. Worthington, 38 Md. 298, 327; "Wright v. Puekett, 22 Gratt. 
 370; Temple v. Johnson, 71 111. 13; Edwards v. Fry, 9 Kan. 417; Armstrong 
 v. Kattenhorn, 11 Ohio, 265, 271; Williams v. Morris, 95 U. S. 444, 457.] 
 
 (c) See Ramsden v. Dyson, L. R. 1 H. L. 129, 140, 168; Powell v. Thomas, (> 
 Ha. 300; [Brown v. Bowen, 30 N. T. 519, 541, 544; Railroad Co. v. Ragsdale, 
 54 Miss. 200; Brooks ». Curtis, 4 Lans. 283; Dellett v. Kemble, 23 N. J. E^. 
 58; Willmott v. Barber, 15 Ch. D. 96, 105.] 
 
 42 657 
 
•582 CHAP. XII. AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 "why the plaintiff must show part performance on his own side, and 
 part performance by the defendant would be immaterial (a). When 
 the Court is satisfied, that the plaintiff has altered his position on 
 the faith of an agreement, and that the defendant can not bo heard 
 to deny the existence of that agreement, it proceeds to ascertain by 
 the ordinary means what the terms of the agreement were. The 
 proof of this is strictly collateral to the main issue, though the 
 practical result is that the agreement is enforced. 
 , d. The case of an agreement in consideration of marriage pre- 
 sents special difficulties, and has to be treated in an exceptional 
 manner. This subject is fully discussed in Mr. Davidson's volume 
 on settlements (Dav. Conv. vol. 3, part 1, appendix No. 1, to which 
 place the reader is referred for details). It is thoroughly settled 
 that the marriage itself does not constitute such a part perform- 
 ance as to make the agreement binding in equity in the manner 
 just mentioned, though other acts may have that effect (6). 
 582] *The next question is, what is the effect of a post-nuptial 
 " note or memorandum " satisfying the requisites of the statute on 
 An ante-nuptial informal agreement? 
 
 The authorities are not very clear on this point. It is submitted 
 however that if attention be given to the actual decisions, rather 
 than to the language used on various occasions, little or no real 
 •conflict will be found. It is not the Statutp of Frauds alone that 
 has to be considered in these eases, but also the statute of 13 Eliz. 
 c. 5, and the extensive application of it by judicial construction to 
 voluntary dispositions of property. Two distinct questions are in 
 fact raised : namely, whether an informal ante-nuptial agreement 
 can after the marriage be rendered valid as against the promisor, 
 And whether a post-nuj)tial settlement can be made to relate back 
 to such an agreement so as to be deemed a settlement made for val- 
 uable consideration and thus be rendered valid as against creditors. 
 The first question is answered in the affirmative by the decision in 
 Barkworth v. Young (c). The case was decided on demurrer, and 
 the facts assumed by the court on the ease made by the plaintiff's 
 
 (a) Caton v. Caton, 1 Cta. at p. 148; [Glass ». Hulbert, 102 Mass. 24, 31; 
 Luckett v. Williamson, 37 Mo. 388.] 
 
 (6) See Lasserree v. Tierney, 1. Mac. & G. 551, 671 ; Surcome v. Pinniger, 3 
 D. M. G. 571 , 575 ; [Henry v. Henry, 27 O. S. 121 ; Pinch v. Pinch, 10 O. S. 601 ; 
 Bradley v. Sadler, 54 Ga. 681.] 
 
 (c) 4 D««v. 1. 
 658 
 
INFORMAL AGREEMENTS UNDER STATUTE OF FRAUDS. 533 
 
 bill were to this effect. The testator against whose estate the suit 
 -was brought had orally promised his daughter's husband before 
 4ind in consideration of the marriage that at his death she should 
 have an equal share of his property with his other children. After 
 the marriage the testator made an affidavit in the course of a liti- 
 gation unconnected with this agreement, in which he incidentally 
 admitted it. It was held that the affidavit was a sufficient note or 
 memorandum of the agreement within the Statute of Frauds, and 
 that as such, although subsequent to the marriage, it rendered the 
 agreement binding on the testator. 
 
 The second question is practically (though, as will be seen, not 
 -quite decisively) answered in the negative by the almost contem- 
 poraneous decision in Warden v. Jones (a). That was a creditor's 
 suit to set aside a post-nuptial settlement. It was attempted to 
 support the settlement as having been made pursuant to an oral 
 ante-nuptial agreement. This agreement was not referred to in 
 the settlement by any recital or otherwise. It was held both by 
 Eorailly, M. E., and by Lord Cranworth, *C, on appeal, [583 
 that the settlement could not be supported : and Lord Cranworth 
 inclined to think (6) that if the settlement had expressly referred 
 to the agreement it would have made no difference. 
 
 The result of this, and of Barkworth v. Young, appears to be 
 that the imperfect obligation arising from an informal ante-nuptial 
 -agreement can be made perfect and binding as between the parties 
 by a post-nuptial note or memorandum ; but that the marriage con- 
 sideration can not in this way be imported into a post-nuptial set- 
 tlement made in pursuance of the agreement so as to protect it 
 from being treated as a voluntary settlement and subject to the 
 consequent danger of being set aside at the suit of the settlor's 
 -creditors. There seems to be no ground in either ease for drawing 
 any distinction between promises made by one of the persons to be 
 married and promises made by a third person to either of them. 
 These, doctrines appear to be both reasonable in themselves and not 
 inconsistent with one another. There is nothing unexampled in a 
 transaction being valid as regards the parties to it and invalid as 
 regards the rights of other persons. It is difficult to see why a 
 writing satisfying the requisites of the statute should in this case 
 be deprived of its effect as against the party to be charged merely 
 
 (a) 23 Beav. 487 ; 2 De G. & J. 76. 
 
 (b) Notwithstanding Dundas v. Dutens, 1 Ves. Jr. 199 
 
 659 
 
584 CHAP. XII. AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 by the reason of marriage having taken place between the dates* 
 of the original promise and of the writing. On the other hand, it 
 is plain that the rights of creditors would be in serious danger if, 
 a mere reference to an ante-nuptial agreement, of which there was- 
 no evidence beyond the memory of the persons who for this pur- 
 pose would have a common interest in upholding its existence, were 
 to be admitted to make a post-nuptial settlement unimpeachable (a.). 
 
 There is yet another class of cases, not resting on contract or- 
 agreement at all (b), in which courts of equity have compelled 
 persons to make good the representations on the faith of which 
 584] *they have induced others to act. The distinction is pointed 
 out by Eomilly, M. E., in Warden v. Jones (c) : and the extension-, 
 of the doctrine to married women shows very forcibly that it bas- 
 nothing to do with contract or capacity for contracting : for a mar- 
 ried woman's interest in property, though not settled to her sepa- 
 rate use, has repeatedly been held to be bound by this kind of equi- 
 table estoppel (d). 
 
 As already intimated, the doctrine of part performance is in« 
 
 (a) Cp. the remarks of Sir T. Plumer, M. K., in Biittersbee v. Farrington, 1 
 Swanst. 106, 113, doubting whether a recital in a post-nuptial settlement of 
 ante-nuptial written articles would of itself, as against creditors, be sufficient 
 evidence of the existence of such articles. And see May on Voluntary and 
 Fraudulent Alienations of Property, chap. 5, p. 346 sqq. ["It seems very 
 idle, not to say frivolous, to attempt any distinction between the case where the- 
 
 , settlement recites the parol agreement, and where it is made in fulfillment of 
 such contract, but without reciting it:' : Story Eq. ,Jur. § 987a; Satterthwaite v.. 
 Emley, 3 Green's Ch. 489 ; Keade v. Livingston, 3 Johns. Ch. 481. 
 
 A post-nuptial settlement, made in pursuance of an oral ante-nuptial agree- 
 ment, is invalid as against creditors: Eeade u. Livingston, 3 Johns. Ch. 481; 
 Winn v. Albert, 5 Md. 66; Izard v. Izard, Bailey's Eq. 228; Smith v. Green, 3- 
 Humph. 118; "Wood v. Savage, 2 Doug. (Mich.) 316; unless the debtor retains- 
 other property, clearly and abundantly sufficient to satisfy all debts subsisting 
 at the time of the execution of the settlement: Lloyd v. Fulton, 91 U. S. 479.], 
 
 (b) Per Lord Selborne, Citizens' Bank of Louisiana v. First National Bank, 
 of New Orleans, L. K., 6 H. L. 352, 360. 
 
 (c) 23 Beav. at p. 493; cp. Teomans v. Williams, 1 Eq. 184, 186; and see 
 Dav. Con v. 3. 640-646. 
 
 (d) Sharpe v. Foy, 4 Ch. 35; Lush's Trusts, ib. 591; [Norton v. Nichols, 35- 
 Mich, 148; Gatling a. Rodman, 6 Ind. 289; Connoly v. Branstler, 3 Bush, 702; 
 Wright v. Arnold, 14 B. Mon. 513; Schmitheimer v. Eiseman, 7 Bush, 298 p 
 Rusk u. Fenton, 14 Bush, 490; Godfrey v. Thornton, 46 Wis. 077, 690; supra r 
 p. 70.] 
 
 660 
 
" SLIP " IN MARINE INSUBANCE. 585- 
 
 *ruth closely connected with this: though it is difficult to reconcile 
 the applications of that special doctrine with the general rule laid 
 ■down by the House of Lords that representations relied on by way 
 -of equitable estoppel must be represeniations not of intention but 
 *of existing facts (a). 
 
 The principle seems to have been introduced partly in order to 
 escape the difficulty of deciding in each case whether the represen- 
 tations, taken with the whole of the negotiations in which they oc- 
 curred, did or did not amount to an actual contract. It was re- 
 cently held in Coverdale v. Eastwood (6) that there was an actual 
 •■contract, and also that this larger principle would apply to the 
 ■ease. The decree took the form of a declaration that the letters re- 
 lied upon amounted to and constituted a contract for valuable con- 
 sideration. 
 
 B. Another curious and important instance of an imperfect ob- 
 ligation arising out of special conditions imposed on the formation 
 <of a complete contract is to be found in the case of marine insur- 
 -ance. In practice the agreement is concluded between the parties 
 by a memorandum called a slip, containing the terms of the pro- 
 posed insurance and initialed by the underwriters (c). It is the 
 •practice of some insurers always to date *the policy as of [58& 
 -the date of the slip (rf). At common law the slip would constitute 
 a binding contract. This, however, is not allowed by the revenue 
 -laws. By the Act now in force on this subject, 30 Vict., c. 23, s. 7, 
 " No contract or agreement for sea insurance (other than such in- 
 surance as is referred to in the 55th section of the Merchant Ship- 
 ping Act Amendment Act, 1862) [i.e. against the owners' liability 
 
 (a) Jorden v. Money, 5 H. L. 0. 185. The ground appears to be that a 
 -"representation of intention" is nothing, if not a promise capable of constitut- 
 
 ing a contract, and as such subject to the law of contract, including any condi- 
 tions imposed by statute on the particular class of contracts to which it belongs. 
 {Brightman v. Hicks, 108 Mass. 246; White v. Ashton, 51 N. Y. 280; Alderson 
 ■v. Maddison, 5 Ex. D. 293.] In the case of Jorden v. Money, the majority of 
 'the Lords thought the promise was distinctly given and understood as a prom- 
 ise in honor only, reserving legal rights; but the ratio decidendi is broader, and 
 tseems to be adopted to the full extent by Lord Selborne, see note (b) last page, 
 jthough Lord Campbell (Piggott v. Stratton, 1 D. F. J. 51) and Lord Hatherley, 
 -when V.-C. (s. c. Johns, 356), endeavored to restrict it. 
 
 (b) 15 Eq. 121, 131 ; [cp. Dashwood v. Jermyn, 12 Ch. D. 776.] 
 
 (c) For tha form of this, see L. R., 8 Q. B. 471 ; 9 Q. B. 420. 
 
 (d) See L. R. 8 Ex. 199. 
 
 661 
 
586 CHAP. XI. AGREEMENTS OP IMPERFECT OBLIGATION. 
 
 for accidents of tbe kinds mentioned in s. 54 of that Act] shall be- 
 valid unless the same is expressed in a policy." And by s. 9 no- 
 policy can be given in evidence or admitted to be good or available 
 in law or in equity unless duly stamped. The part of the act 
 which gives rise to the peculiar results we are about to consider is 
 the 7th section. The 9th section is in the same language as other 
 revenue enactments relating to instruments chargeable with stamp 
 duties (a) : and like those enactments, it does not affect any rights- 
 or remedies directly, but only in an indirect manner by establish- 
 ing an arbitrary rule of evidence. 
 
 The earlier statutes on the matter now before us were differently 
 worded, and made every contract of insurance " null and void to- 
 all intents and purposes," which was not written on duly stamped 
 paper or did not contain the prescribed particulars. (35 Geo. 3,, 
 c. €3, ss. 11, 14 ; 54 Geo. 3, c. 144, s. 3 : the latter statute was ex- 
 pressly-pointed, as appears by the preamble, against the practice 
 " of using unstamped slips of paper for contracts or memorandums 
 of insurance, previously to the insurance being made by regular 
 stamped policies.") It was settled on these statutes that the pre- 
 iminary slip could not be regarded as having any effect beyond 
 that of a mere proposal (b) : and it was even held that the slip- 
 could not be looked at by a court of justice for any purpose what- 
 ever (c). The change in the language of the existing statute (which 
 repealed the earlier enactments) has given the courts the oppor- 
 tunity of adopting a more liberal construction without actually 
 overruling any former authorities. 
 
 Since the Act of 30 Vict, the fact has been judicially recognized. 
 586] that the slip is in practice and according to the ♦understand- 
 ing of those engaged in marine insurance the complete and final 
 contract between the parties, fixing the terms of the insurance and 
 the premium, and neither party can, without the assent of the 
 other, deviate from the terms thus agreed on without a breach of 
 faith. Accordingly, though the contract expressed in the slip is- 
 not valid, that is, not .enforceable at law or in equity, it may be- 
 ta) See the Stamp Act, 1870, 33 & 34 Vict., c. 97, a. 17. 
 
 (b) See per Willes, J., in Xenos v. "Wickljam, L. E. 2 H. L. 296, 314; SmithV 
 ca. : 4 Ch. 611. 
 
 (c) See per Blackburn, J., in Fisher v. Liverpool Marine Insurance Co., L. 
 11. 8 Q. B. 469, 474. 
 
 662 
 
" SLIP " IN MARINE INSURANCE. , 587" 
 
 given in evidence wherever it is, though not valid, material (r?). Iq 
 the ease referred to the slip was admitted to show whether the in- 
 tention of the parties was to insure goods by a particular named 
 ship only, or by that in which they might be actually shipped,, 
 whatever her name might be. A Still more important application 
 of the same principle was made in Cory v. Patton (b), where it was- 
 held that the time when the contract is concluded and the risk ac- 
 cepted is the date of the slip, at which time the underwriter be r 
 comes bound in honor, though not in law, to execute a formal pol- 
 icy ; that the Court, when a duly stamped policy is once before it, 
 may look to the slip to ascertain the real date of the contract; and 
 therefore that if a material fact comes to the knowledge of the as- 
 sured after the date of the slip and before the execution of the pol- 
 icy, it is not his duty, either in honor or in law, to disclose it, and 
 the nondisclosure of it does not vitiate the policy. This holds 
 though after the completion of the contract by the slip a new term 
 be added for the benefit of the underwriters (c). The same doc- 
 trine has been considered and allowed, though not directly applied, 
 in other cases. In Fisher v. Liverpool Marine Insurance Co. (rf> 
 the slip had been initialed, but the insurance company had executed 
 no policy. In the case of an insurance with private underwriters 
 it is the duty of the broker of the assured to prepare a properly 
 stamped policy and present it for execution. But in the case of a 
 company the policy is prepared by the company, executed in the 
 company's office, and handed over to the assured or his agent on 
 application. It was held that there was no undertaking by the 
 company, distinguishable from the contract of insurance itself, to do 
 that which it would be the duty of a broker to do in *the case of [587 
 private underwriters ; that the only agreement of the company with 
 the assured was one entire agreement made by the initialing of the 
 slip, and that as this was an agreement for sea insurance, the stat- 
 ute applied and made it impossible to maintain any action for a 
 breach of duty with regard to the preparation and execution of a 
 
 (a) Per Cur., Tonides v. Pacific Insurance Co., L. K. 6 Q. B. 674, 685, affd. in 
 Ex. Ch. 7 Q. 13. 517. 
 
 (b) L. K. 7 Q. B. 304; see further s. c. 9 Q. B. 577. 
 
 («) Lishman v. Northern Maritime Insurance Co., L. B. 8 C. P. 216, affd. in, 
 Ex. Ch. 10 C. P. 179. 
 (d) L. R. 8 Q. B. 469 (Blackburn, J., dass.), affd. in Ex. Ch. 9 Q. B. 218. 
 
 663 
 
587 OHAP. XII. AGREEMENTS OP IMPERFECT OBLIGATION. 
 
 policy. In Morrison v. Universal Marine Insurance Co. (a), the 
 question arose of the effect of delivering without protest a stamped 
 policy pursuant to the slip after the insurers had discovered that at 
 the date of the slip a material fact had been 'concealed. It was held 
 in the Exchequer Chamber, reversing the judgment of the Court 
 below, that the delivery of the policy did not preclude the insurers 
 from relying on the concealment, but that it was aquestion properly 
 left to the jury whether they had or had not elected to abide by the 
 contract. This implies not only that the rights of the parties are 
 determined at the date of the slip, but that the execution of the 
 stamped policy afterwards has little or no other significance than that 
 of a necessary formality (6). In the case of a mutual marine insur- 
 ance association, a letter by which the assured undertook to become 
 members of the association was admitted as part of one agreement 
 ■with the stamped policy, to show that the assured were contribu- 
 tories in the winding up of the association (c). In the winding up 
 of another such association a member has been admitted as a cred- 
 itor for the amount due on his policy, though unstamped, when the 
 liability was admitted by entries in the minute books of the asso- 
 ciation, which seem to have been considered equivalent to an ac- 
 count stated (d). 
 
 It has already been observed that the general revenue laws as to 
 stamp duties are on a different footing (e). However their effects 
 may in one or two cases resemble to some extent those which under 
 the present head we have attempted to exhibit. Thus if an un- 
 stamped document combines two characters (as, for instance, if it 
 
 (a) L. E. 8 Ex. 40, in Ex. Ch., lb. 197. 
 
 (6) See the judgment of Cleasby, B., in the Court below, L. B. 8 Ex. at p. 60. 
 
 (c) Blyth & Co.'s ca., 13 Eq. 529. 
 
 (d) Martin's claim, 14 Eq. 148. 
 
 (e) [The act of Congress providing that no instrument or document not duly 
 stamped as required by the internal revenue laws of the United States, should 
 be admitted or used as evidence in any court, was generally held by the State 
 courts inapplicable to or not binding upon them : Hunter v. Cobb, 1 Bush, 239 ; 
 Carpenter v. Snelling, 97 Mass. 452; Latham v. Smith, 45 111. 29; Craig v. 
 Dimock, 47 111. 308 ; Sporrer v. Eifler, 1 Heisk. 633 ; Porchheimer v. Holly, 14 
 J?la.239; Duffy v. Hobson, 40 Cal. 240; Dailey v. Coken, 33 Tex. 815; Bumpa 
 v. Taggart, 26 Ark. 398 ; Griffin v. Eanney, 35 Conn. 239 ; People' v. Gates, 43 
 N. Y. 40; Davis v. Eichardson, 45 Miss. 499; Sammons v. Halloway, 21 Mich. 
 102 ; Talley v. Eobinson's Assignee, 22 Gratt. 888 ; Wallace u. Cravens, 34 Ind. 
 684 ; contra, Turnpike Co. v. McNamara, 72 Pa* St. 278.] 
 
 664 
 
UNSTAMPED AGREEMENTS., ,- 5gg 
 
 purports to show both an account stated and a receipt) and if in 
 •one of those characters it requires a stamp, and in the other not, it 
 may be given in evidence in the second character for any purnpse 
 unconnected with the first (a). * 
 
 *In a case where the parties to an agreement in writing [588 
 had afterwards varied its terms by a memorandum in writing, and 
 the memorandum was not stamped, the plaintiff joined in his ac- 
 tion a count on the agreement in its original form and another on 
 the agreement as varied : and when it appeared by his own evi- 
 dence that the memorandum did materially alter the first agree- 
 ment, but was unavailable for want of a stamp, it was held thatbe 
 -could not fall back on the agreement as it originally stood (6). 
 JNeither this decision, nor the earlier authorities on which it rested, 
 were referred to in Noble v. Ward'(c). In that case there was a 
 substituted agreement which was void under s. 17 of the Statute of 
 Frauds : and it was held that as the parties had no intention of 
 dimply rescinding the former agreement, that former agreement re- 
 mained in force. The two cases, if they can stand together, must 
 do so by reason of the distinction between a contract the record of 
 which is unavailable for want of a stamp, and an agreement which 
 is void from its inception. 
 
 In a recent case in equity it was unsuccessfully attempted to 
 make use of an unstamped letter, which in effect was a bill of ex- 
 change, and as such unavailable, as amounting to an equitable as- 
 signment, (d). 
 
 In a much litigated case of Evans v. Prothero (e) the question 
 .arose whether a document purporting to bo a receipt for purchase- 
 money on a sale of land, but insufficiently stamped for that pur- 
 pose, can be admitted as evidence to prove the existence of ait 
 agreement for sale : but the form in which it arose was unfortu- 
 nately ill-suited for the attainment of a final and satisfactory de- 
 •cision. The existence of the agreement was in issue on a. trial 
 
 (a) Matheson i). Ross, 2 H. L. 0. 286, and see Chitty on Contracts, 125 
 (10th ed.) ■ 
 
 (4) Keed v. Deere, 7 B. & C. 261. 
 
 (c) L. E. 1 Ex.117, in Ex. Ch. 2 Ex. 135: but otherwise where the substituted 
 -agreement lias been executed in part; for this shows that the old one is gone: 
 -Sanderson v. Graves, L. R. 10 Ex. 234. 
 
 (d) Ex parte Shellard, 17 Eq. 109. 
 
 (e) 2 Mac. & G. 319; 1 D. M. G. 572. 
 
 665 
 
589 CHAP. XII. AGBEEMENTS OP IHPERFECT OBLIGATION. 
 
 directed by the Court of Chancery: the document above men- 
 tioned was tendered as proof and objected to : the jury found in 
 favor of the agreement, and a new trial was applied lor. This- 
 was granted by Lord Cottenham : on the second trial the same 
 thing happened again : Lord Cottenham sent the ease back to a. 
 third trial, holding on each occasion that the document was iu- 
 589] *admissible. The third trial took the same course as llie- 
 first and second. But the motion for a fourth trial came before- 
 Lord St. Leonards, who Vook a contrary view to Lord Cottenham's- 
 and refused' it. The judges before whom the applications came in 
 the v Court of Chancery in the first instance, and those before whom: 
 the issues were tried at Cardiff assizes, were also divided in opin- 
 ion. The point must therefore be regarded as still quite unsettled,, 
 though the analogy of other authorities seems to favor the opinion 
 of Lord St. Leonards. 
 
 C. There are also many statutes which impose special conditions- 
 on the exercise of particular professions and occupations and the 
 Bale of particular kinds of goods. Most of these, however, are so- 
 framed, or have been so construed, as to have an absolutely prohib- 
 itory effect ; that is, not merely to take away or suspend the rem- 
 edy by action, but to render any transaction in which their pro- 
 visions are disregarded illegal and void. The principles applicable- 
 to such cases have been considered under the head of Unlawful 
 Agreements (Ch. VI.). In a few cases, however, there is not any 
 thing to prevent a right from being acquired, or to extinguish it 
 when acquired, but only a condition on which the remedy depends. 
 Of this kind are the provisions of the Act (J & 7 Vict. c. 73, with, 
 respect to attorneys and solicitors, and of the Medical Act, 1858 (21 
 & 22 Viet. c. 90), with respect to medical practitioners. 
 
 By the C & 7 Vict. c. 73, s. 26, it is enacted in substance that an 
 attorney or solicitor practicing in any court without having a 
 stamped certificate then in force (as provided for by ss. 22-25, and 
 now 23 & 24 Vict. c. 127, ss 18-23) shall not be capable of recov- 
 ering his fees for any business so done by him while uncertificated. 
 This however does not make it unlawful for the client to pay such 
 fees if he thinks fit, nor for the solicitor to take and keep them. 
 And the Court of Common Pleas has held tbat a defeated party in 
 an action who has to pay his adversary's costs is bound by any such 
 payment which has been actually made, and can not claim to have- 
 it disallowed after taxation, though it seems the objection might. 
 666 
 
COSTS OF UNCERTIFICATED SOLICITORS.* 590* 
 
 have been successful if made in time 'before the taxing master (a). 
 In equity the principle lias been carried out farther : the objection 
 was made *on taxation, and overruled by the taxing master'; [59© 
 and it was decided by the Court of Appeal that the costs must be 
 paid. Here it was said that the client was bound in honor to pay 
 his solicitor, though he couM not have been compelled to do so, and 
 it might be presumed in the absence of proof to the contrary that he 
 had in fact paid these costs; and then he had a right to recover 
 them over from the other side (6). And in another somewhat 
 earlier case (c) it was decided that items for business done by a so- 
 licitor while uncertificated must be allowed as against the client in 
 a taxation on the client's own application, for the client submits to 
 pay what shall be found due, not only what the solicitor might have 
 sued for, and the debt is not destroyed. Proceedings taken by a 
 solicitor who has not renewed his certificate can not be on that ac- 
 count set aside as | irregular (d). It 5b said that an attorney can 
 have no lien for business done by him while uncertificated (e). 
 But the case cited for this (/) was on the earlier Attorneys Act, 37 
 Geo. 3, c. 90, by which the admission of an attorney neglecting to 
 obtain his certificate as thereby directed was in express terms made 
 void (s. 31) : it was held that under the special circumstances of the 
 case (which it is unnecessary to mention), there had been a neg- 
 lect within the meaning of the statute so that the attorney's admis- 
 sion was void, and that he must be regarded as having been off the 
 roll of attorneys. He was therefore, as a necessary consequence, 
 incapable of acquiring any right whatever as an attorney while 
 thus disqualified. It is submitted that under the modern Act there 
 is no reason for depriving an uncertificated solicitor of his lien, at 
 any rate in the absence of any wrong motive or personal default 
 in the omission to take out the certificate. 
 
 Apart from this, a solicitor can not in any case sue for costs till 
 a month after the bill has been delivered (6 & 7 Vict. c. 73, s. 37), 
 unless authorized by a judge to sue sooner on one of certain grounds- 
 now much enlarged by the Legal Practitioners Act, 1875, 38 & 39* 
 
 "Vict. c. 79. 
 
 . , , . 
 
 («) Fullalov'e v. Parker, 12 C. B. N. S. 246; 31 L. J. C. P. 239, 240. 
 <*) lie Hope, 7 Ola. 70(1 (c) lie Jones, 9 Eq. 63. 
 
 (d) Sparling v. JJrereton, 2 Eq. 64. 
 
 (e) Chitty's Arohbold's Pr. 69, ed. 1866. 
 (/) Wilton v. Cumbers, 7 A. & E. 524. 
 
 667 
 
-591 CHAP. XII. AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 (The special agreements between solicitor and cliont made lawful 
 -591] by the Apt of 1870 belong to a different category, *as they 
 •can not be sued on as contracts at all. See below, p. 596). 
 
 The rights of medical practitioners now depend on the Medical 
 Act, 1858, and (in England only) the Apothecaries Act, 55 Geo. 3, 
 -c. 194. Before the Medical Act the state of the law, so far as con- 
 cerned physicians (but not surgeons or apothecaries) was this. It 
 was presumed, in accordance with the general usage and under- 
 standing, that the services of a physician were honorary, and were 
 not intended to create any legal obligation : hence no contract to 
 pay for them could be implied from his rendering them at the re- 
 -quest either of the patient or of a third person. But this was a 
 presumption only, and there was nothing contrary to law in an 
 -express contract to pay a physician for his services, which contract 
 would effectually exclude the presumption (a). 
 
 The Medical Act, 1858 (21 & 22 Vict., c. 90), s. 31, enacts that 
 -every person registered under the Act shall be entitled according 
 to his qualification to practice medicine, etc., and to recover reason- 
 able charges for professional aid, etc. : but it is provided that any 
 •college of physicians may pass a by-law that none of their fellows 
 -or members shall be entitled to sue "in manner aforesaid." The- 
 effect of this enactment is to put an end to the presumption of hon- 
 orary employment which formerly existed (6). It remains compe- 
 tent, however, for a medical man to attend a patient on the under- 
 standing that his attendance shall be gratuitous, and whether such 
 an understanding exists or not in a disputed case is a question of 
 fact for a jury (c). 
 
 By the Act 55 Geo. 3, c. 194, s. 21, an apothecary can not recover 
 bis charges without having a certificate from the Apothecaries' So- 
 ciety ; and this is not repealed by the Medical Act (d). Moreover, 
 a. 31 of the Medical Act enables a practitioner to sue only " accord- 
 
 (n) Veitch v. Russell, 3 Q. B. 928; 12 L. J, Q. B. 13. [In this country, there 
 is no presumption that the services of a physician are honorary or gratuitous, 
 and he may therefore recoverjeasonable compensation for his services rendered 
 on request: Adams v. Stevens, 26 Wend. 451, 455; McClallen v. Adams, 19 
 Pick. 333; Judah i>. M'Namee, 3 Blackf. 269; Shelton v. Johnson, 40 la. 84; 
 Todd v. Myers, 40 Cal. 356.] 
 
 (6) Gibbon v. Budd, 2 H. & 0. 92 ; 32 L. J.* Ex. 182. See judgment of Mar- 
 gin, B. 
 
 (c) Gibbon v. Budd, last note. 
 
 (d) See decisions on this Act, collected, 1 Wma. Saund. 513-4. 
 
 '668 
 
MEDICAL AOT. ' 592* 
 
 ing to his qualification," and a qualification in one capacity does- 
 not entitle him to sue for services rendered in another (a). 
 
 *It may perhaps be doubted whether the "reasonable [59£" 
 charges " of s. 31 include remuneration for which there is an ex- 
 press contract : for as to this there was no necessity for any enabling- 
 enactment. Again this question arises — can a patient who has ex- 
 pressly contracted to pay his physician avail himself of this section 
 to refuse payment on the ground of the charges being unreasona- 
 ble ? Then, if the proviso as to collegiate by-laws is to be taken a» 
 applicable only to the same matter as the enactment which it qual- 
 ifies, it may possibly follow that there is no power fora college to- 
 make a by-law to restrain a fellow or member from suing on an 
 express contract. It seems more probable, however, that s. 31 
 should be read together with the following section (s. 32), and taken 
 as co-extensive with it. That section enacts that no practitioner- 
 shall recover any charge for medical or surgical advice, etc., unless- 
 he proves that he is registered under the Act (b). And this at all 
 events includes express as well as implied contracts ; it also includes- 
 contracts made with any third person who is to pay for medical 
 attendance as well as those made with the patient himself. In Al- 
 varez de la Rosa v. Prieto (c) the plaintiff was a Spanish practi- 
 tioner domiciled in England but unregistered, and he had agreed 
 with the defendant, who was the chief medical officer of a Peruviau- 
 ship of war lying in the Thames, to take the medical charge Of the 
 men on board for a fixed monthly sum during the defendant's ab- 
 absence. It was held that this contract fell within the Act and the- 
 plaintiff could not recover. It made no difference that the defend- 
 ant was a medical man, for the plaintiff was not his assistant, but 
 was acting independently, and merely looked to him for payment.. 
 It was also argued that the contract should be governed not by the 
 law of England but by the law of Peru : but the Court held that 
 
 (a) Leman v, Fletcher, L. K., 8 Q. B. 319. 
 
 (b) It was held not necessary that the practitioner should have been regis- 
 tered at the time of rendering the services sued "for, if he could prove that he- 
 was actually registered at the time of the trial in Turner ■«. Eeynall, 14 C. B. 
 N. S. 328 ; . 32 L. J. C. P. 164. But see, contra, Leman v. Housele^, L. K., 10 Q. 
 B. 66, decisively and at all events as to apothecaries ; for an unrepealed section 
 of the Apothecaries Act (55 Geo. 3, c. 194, s. 20) expressly forbids unqualified., 
 persons to practice; and in the clear opinion of the Court on {he construction* 
 and intention of the Medical Act also. 
 
 (c) 16 0. B. N. S. 578; 33 L. J. 0. P. 262. 
 
 669 
 
V593 CHAP. XII. AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 •since s. 32 of the Medical Act was part of the lex fori of the country. 
 593] where the remedy was sought, the *general rule that the lex 
 fori governs the remedy must be applied. Cp. the decision on s. 4 
 of the Statute of Frauds in Leroux v. Brown (a). 
 
 By the Austrian Code (§ 879) special agreements for remunera- 
 tion between a physician or surgeon and his patient, as well as be- 
 tween a lawyer and his client are null and void. 
 
 The general result is that according to the modern law there is 
 no presumption against the existence of a contract to remunerate a 
 medical attendant for hie services, but registration under the Medi- 
 cal Act, and also the proper special qualifications for the special 
 branch of practice in which the services are rendered (which reg- 
 istration and qualification, according to the later and better opinion, 
 must exist at the time the services are rendered) (6), are conditions 
 precedent to his recovering any thing for such services on a con- 
 tract either express or implied : and the right to recover on an im- 
 plied contract at all events (and probably also on an express one) 
 may be excluded in the case of fellows or members of any college 
 of physicians by a prohibitive by-law (c). Moreover it seems prob- 
 able that even an express contract is subject to the condition of the 
 charges being reasonable. 
 
 3. We now come to the cases in which some positive rule of law 
 or statutory enactment takes away the remedy altogether. 
 
 The only cases known to the writer in which there is a rule of 
 law to this effect independent, of any statute, are those of the re- 
 muneration of barristers engaged as advocates in litigation, and (to 
 a limited extent) of arbitrators. 
 
 With regard to arbitrators the better opinion appears to be that 
 they are. in the same condition as physicians were at common law. 
 It is said that an arbitrator can not recover on any implied con- 
 tract for his remuneration, but there is no doubt that he can sue on 
 an express contract (d). 
 
 (a) 12 C. B. 801 ; 22 L. J. C. P. 1 ; supra, p. 576. [In Hewitt' v. Wilcox, 1 
 Met. 154, it was held that an unlicensed physician could, after the repeal of an 
 
 -act depriving unlicensed physicians " of the benefit of law for the recovery of 
 any debt or fee accruing, for professional services," recover for services ren- 
 dered while the act was in force. Cp. Warren v. Saxby, 12 Vt. 146.] 
 
 (b) Leman v. Houseley, L. R. 10 Q. B. 66. 
 
 (c) Such a by-law has been passed (as to fellows, only) by the Royal College 
 -of Physicians in London. 
 
 {d) Hoggins v. Gordon, 3 Q. B. 466 ; 111* J. Q. B. 286 ; Veitch v. Russell, lb. 
 670 
 
counsel's fees. , 594 
 
 The position of a barrister is different. 
 
 The opinion was indeed not untenable, until quite .recently, 
 ^that in the ease of counsel as. in that of a physician, there [594- 
 -was a presumption of purely honorary employment, derived from 
 the custom of the profession, but that this presumption would be 
 excluded by proof of an express contract. So Lord Denman seems 
 to have been inclined to think in Veiteh v. Bustcll (ft); and a mod- 
 ern case of Hobart v. Butler, in the Irish Exchequer, though it did 
 not decide the point, proceeded to some extent on the same as- 
 sumption (b). 
 
 But the decision of the Court of Common Pleas in Kennedy v. 
 Broun (c). has established the unqualified doctrine that "the rela- 
 tion of counsel and client renders the parties mutually incapable of 
 making any legal contract of hiring arid service concerning, advo- 
 cacy in litigation." The request and promises of the client,, even 
 if there be express promises, and the services of the counsel, " create 
 neither an obligation nor an inception of obligation, nor any in- 
 choate right whatever capable of being completed and made into a 
 contract by any subsequent promise." 
 
 On the other hand, there is apparently no reason to doubt the 
 validity of an express contract to remunerate a barrister for serv- 
 ices which, though to some extent of a professional kind, and in- 
 volving the exercise of professional knowledge, do not involve any 
 relation of counsel and client between the contracting parties: as 
 when a barrister acts as arbitrator or returning officer (d). The 
 want of attending to this distinction has led to such cases being 
 -cited as authorities for the general proposition that a barrister can 
 recover fees on an express contract. 
 
 Moreover, it has been argued that an express contract even be- 
 tween counsel and client may still be good as to non-litigious busi- 
 ness. A claim of this sort made against an estate under adminis- 
 tration, was disposed of by Gitfard, L. J., on the ground, which 
 
 928 ; 12 L. J. Q. B. 13. [In this country an arbitrator may recover compensa- 
 tion for his services in the absence of an express promise to pay for them : 
 Hinman v. Hapgood, 1 Denio, 188 ; Goodall v. Cooley, 29 N. H. 48,, 55; Hol- 
 -comb v. Tiffany, 38 Conn. 271.] 
 
 (a) See last note. (b) 9 Ir. C. L. 157. 
 
 (c) 13 C. B. If. a. 677 ; 32 L. J. C. P. 137; [Schomp v. Schenk, 40 N. J. L. 
 195; supra, p. I'.ii, note (d). 
 
 (d) Hoggins v. Gordon, 3 Q. B. 466; 11 L. J. Q. B. 286; Bgan 0. Guardians 
 ■of Kensington Union, 3 Q. B. 935, n. ■'■'■ 
 
 &71 
 
595 CHAP. XII. AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 was sufficient for the particular decision, that at all events n solic- 
 itor has no general authority to bind his client by such a con- 
 tract : but he also observed that such applications had never beerx 
 595] successful, and expressed a hope that they never would *be (a). 
 And it must be remembered that although the rule laid down in- 
 Kennedy v. Broun is in its terms confined to litigation, and tho 
 word advocate, not counsel, is studiously used throughout the judg- 
 ment, yet the rule is founded not on any technical distinction be- 
 tween one sort of business and another, nor on any mere presump- 
 tion, but on a principle of general convenience supported by un- 
 broken custom. ~No doubt it may be said that some of the reasons- 
 given for the policy of the law do not apply in their full extent to- 
 non-litigious business (b). But on the whole there is reason to sup- 
 pose that English courts of justice'are more likely to extend than 
 to narrow the scope of the leading decision, called by the late L. 
 J. Giffard, "a landmark of the law on this subject" (c), if at any 
 future time the occasion presents itself. 
 
 There is no express authority to show whether a barrister can or 
 can not contract with his client's solicitor for payment of his fees- 
 any more effectually than with the client himself. It is appre- 
 hended that, inasmuch as counsel's services are given not to the 
 solicitor but to the client, there would be no consideration to 
 support such a contract unless the solicitor bad actually received 
 the fees from the client. In that case it can not be affirmed with- 
 any confidence that the barrister has no legal rights against the 
 solicitor. A barrister has in fact been admitted to prove in bank- 
 
 (a) Mostyn v. Mostyn, 5 Ch. 457, 459. It may be well to warn the reader- 
 that the cases there referred to in argument in favor of the counsel's claim are, 
 with the sole exception of Hobart v. Butler, 9 Ir. C. L. 157, irrelevant. For 
 instance, Doe d. Bennett v. Hale, 15 Q. B. 171, 18 L. J. Q. B. 353, shows only 
 that there is no absolute rule of law that in a civil cause a barrister may not be 
 instructed directly by the client, and throws no light whatever on any question 
 of a right to recover fees. Hobart u. Butler was relevant enough, but the 
 wrong way ; for it was really a decision against a similar claim, and on an al- 
 most identical point. 
 
 (b) In addition to Kennedy v. Broun, see Morris v. Hunt, 1 Ohitty, 544, 550, 
 554, where the rule is put on the ground that the remuneration of the counsel 
 ought to be independent of the result of the cause, and therefore counsel should 
 rely oxi prepayment alone. This reason would, however, be equally inapplica- 
 ble to an express and unconditional contract to pay fees for advocacy, if made 
 bcibre the commencement of the litigation. 
 
 (c) Mostyn v. Mostyn, supra. 
 
 672 
 
COTTNSEL'S TEES. > 595 
 
 riiptcy against the estate of a firm of solicitors for fees (apparently 
 for conveyancing, not litigious business) which had been actually 
 paid by clients to the bankrupts before the bankruptcy (a). If 
 this be right, it is difficult to see why an *express promise [596- 
 by the solicitor to pay such fees, or an account stated between the 
 solicitor and the counsel in' respect of them should not be binding. 
 On the other hand the Court of Common Pleas has refused to exercise- 
 a summary jurisdiction, on the motion of the client, to compel an 
 attorney to pay to counsel fees alleged to have been paid by the- 
 client, or else to return them to the client (6). The ease, however, 
 was a peculiar one and goes but a very little way towards answer- 
 ing the general question. In the argument of Hobart v. Butler (c) 
 two unreported (presumably Irish) cases were cited to show that a 
 barrister has a remedy in some form, it does not appear what, to re- 
 cover fees which have been received by the solicitor. The Court- 
 expressed no opinion as to their authority. 
 
 It is hardly necessary to add that although counsel's fees can not 
 be recovered in any way by action, except possibly in some of the- 
 cases which have been mentioned as still doubtful, the propriety of 
 paying such fees is judicially recognized by the constant practice 
 of the courts in the taxation of costs : and the solicitor needs no 
 authority from the client beyond his general retainer to enable him. 
 to retain and pay counsel and charge the fees to his client (d). The 
 payment of counsel's fees may in this manner be indirectly en- 
 forced either against the client himself or against an unsuccessful 
 adversary who is liaMe for the taxed costs. 
 
 Notwithstanding the strong expressions used by the Court in. 
 Kennedy v. Broun (e) the judicial notice thus taken of the obliga- 
 tion of a client to pay his counsel seems to be alone quite sufficient 
 to warrant us in treating it here as being, though imperfect, in the 
 nature of a legal duty, and on a different footing from a mere moral 
 obligation. 
 
 By the Attorneys and Solicitors Act, 1870 (33 & 34 Vict.. 
 c. 28) special agreements for remuneration between solicitor arid 
 client are made lawful (s. 4) and in a qualified manner enforce- 
 able. They can not be sued upon as ordinary contracts, but the- 
 procedure is by motion or petition, when the Court may enforce- 
 
 (a) Re Hall, 2 Jur. N.S. 1076. (ft) Re Angell, 29 L. J. C. P. 227. 
 
 (e) 9 Ir. C. L. 157. (d) See Morris v. Hunt, 1 Chitty, 544.- 
 
 (e) 13 C. B. N. 8. 677; 32 L. J. 0. P. 137. 
 
 673 
 
597, 598 chap. xn. agreements of imperfect obligation. 
 
 the agreement if it appears to be in all respects fair and reason- 
 able, or otherwise set it aside. In the last case the Court may direct 
 597] *the costs of the business included in the agreement to be 
 taxed in the regular way (ss. 8, 9). "Where there is an agreement 
 to employ a solicitor on certain terms at a future time, this does not 
 prevent the solicitor from suing the client in a court of law if the 
 client refuses to let him transact the business at all. . The Act ap- 
 plies only to that part of an agreement which fixes the mode of 
 payment for work done (a). 
 
 Since the Infants' Eelief Act, 1874, any contract of an infant 
 voidable at common law and affirmed by him on attaining his ma- 
 jority must be reckoned as an imperfect obligation of this class, 
 viz., on which there has not been and can not be any remedy. The 
 special features of this subject have been already considered (b~), 
 and there is nothing to add except that the general principles set 
 forth in the present chapter seem to be applicable to these as well 
 .as to other agreements of imperfect obligation. 
 
 There are sundry other cases of a less important kind in which 
 the remedy naturally attached to a contract is taken away by stat- 
 ute, without the contract itself being forbidden or avoided. 
 
 By the Act 24 Geo. 2, c. 40, s. 12, commonly known as the Tip- 
 pling Act, no debt can be recovered for spirituous liquors supplied 
 in quantities of less than twenty shillings' worth at one time (c). 
 The County Courts Act, 1867 (30 & 31 Vict., c. 142, s. 4), similarly 
 enacts that no action shall be brought in any court for the price of 
 beer or other specified liquors ejusdem generis consumed on the 
 premises. The Act of Geo. 2 applies whether the person to whom 
 the liquor is supplied be the consumer or not (d). As these enact- 
 ments do not make the sale illegal, money which has been paid for 
 spirits supplied in small quantities can not be recovered back (e). 
 598] A debt for such ^supplies was once held to be an illegal con- 
 
 (o) Rees v. "Williams, L. R. 10 Ex. 200. By the terms of the act the agree, 
 inent must be in writing, and it seems it must be signed by both parties : Ex 
 parte Munro, 1 Q. B. D. 724. 
 
 (6) Supra, Chap. II., p. 43. 
 
 (c) By 25 & 26 Viet., c. 38, an exception is made in favor of sales of spir- 
 ituous liquor not to be consumed on the premises, and delivered at the pur- 
 chaser's residence in quantities of not less than a reputed quart. 
 
 (d) Hughes v. Done or Doane, 1 Q. B. 294 ; 10 L. J. Q. B. 65. 
 
 (e) Philpott v. Jones, 2 A. & E. 41. 
 
 674 
 
TIPPLING ACT. 598 
 
 -sideration for a bill of exchange (a) : but this decision seems dic- 
 tated by an excess of zeal to carry out the policy of the Act, and is 
 possibly questionable. In a later case at Nisi Prius (6) Lord Ten- 
 terden held that, where an account consisted partly of items for 
 -spirituous liquors within the Tippling Act, and partly of other 
 items, and payments had been made generally in reduction of the 
 account, the vendor was at liberty to appropriate these payments 
 to the items for liquor, so as to leave a good cause of action for the 
 balance ; thus treating these debts, like debts barred by the Statute 
 of Limitation of James I., as existing though not recoverable. 
 
 The writer is not aware of any decision on the modern enactment 
 •as to beer, etc,, in the County Courts Act, 1867. 
 
 By the Trade Union Act, 1871 (34 & 35 Vict., c. 31), s. 4, certain 
 agreements therein enumerated and relating to the management 
 and operations of trade unions can not be sued upon, but it is 
 -expressly provided that they are not on that account to be deemed 
 unlawful. In this enumeration are included agreements to pay 
 subscriptions. Practically trade union subscriptions are thus placed 
 on the same footing as subscriptions to any club which is not pro- 
 prietary (c). So far as we are aware there is nothing in principle 
 against the payment of subscriptions to a club being legally en- 
 forced : but it would in most cases be extremely difficult, if not im- 
 possible, to ascertain who were the proper persons to sue (d). 
 The same difficulty exists in the case of any numerous unincor- 
 porated association. But this belongs to another division of our 
 subject (e). 
 
 The present place seems on the whole the most appropriate one 
 for mentioning a singular case which may be regarded as the con- 
 
 («.) Scott v. Gillmore, 3 Taunt. 226. 
 
 (6) Crookshanks v. Rose, 5 0. & P. 19. 
 
 (e) In the case of a proprietary club, the proprietor can sue : see Raggett v. 
 Bishop, 2 C. & P. 343; Raggett v. Musgrave, lb. 556. 
 
 (d) In the common law courts of some of the United States, however, the 
 still more difficult attempt has been made to enforce piomises to subscribe to 
 public objects in which the subscribers had a common interest; and in Massa- 
 chusetts and New York not without success: Hilliard on Contracts, 1. 259; 
 Parsons on Contracts, 1. 377. But see now Cottage Street Church v. Kendall, 
 121 .Mass. 528, where the opinion expressed in earlier dicta, that " it is a suffi- 
 cient consideration that others were led to subscribe by the very subscription 
 of the defendant" was overruled. 
 '«) See pp. 182, 199, 216, supra 
 
 675 
 
599,600 CHAP. XII. AGREEMENTS OF IMPERFECT OBLIGATION. 
 
 599] verse *of those we have been dealing with. A valuable con- 
 sideration is given in the course of a transaction which as the law 
 stands at the time is wholly illegal and confers no right of action 
 on either party. Afterwards the law which made the transaction 
 illegal is repealed. Is the consideration so received a good founda- 
 tion for a new express promise on the part of the receiver? The 
 question came before the Court of Exchequer in 1863, some years 
 after the repeal of the usury laws. The plaintiff sued on bills of 
 exchange drawn and accepted after that repeal, but in renewal of 
 other bills given before the repeal in respect of advances made On 
 terms which under the old law were usurious. The former bills 
 were unquestionably void : but it was held by the Court (Martin, 
 B., dissenting) that the original advance was a good consideration 
 for the new bills. The question was thus stated in the judgment 
 of , the majority : — " Whether an advance of money under such cir- 
 cumstances as to create no legal obligation at the time to repay it 
 . can constitute a good consideration for an express promise to do 
 so." And the answer was given thus : — ,' The consideration which 
 would have been sufficient to support the promise if the law had 
 notforbidden the promise to be made originally does not cease to be- 
 Biufficient when the legal restriction is abrogated. ... A man 
 by express promise may render himself liable to pay back money 
 which he has received as a loan, though some positive rule of law 
 or statute intervened at the time to prevent the transaction from 
 constituting a legal debt " (a). 
 
 The debt, therefore, which was originally void by the usury laws r 
 seems to have been put in the same position by their repeal us if it 
 had been a debt once enforceable but barred by the Statute of Lim- 
 itation. 
 
 There is one other analogy to which it is worth while to advert,, 
 although it was never of much practical importance, and what lit- 
 tle it had has in England b^en taken away by the Judicature Acts. 
 Purely equitable, liabilities have to a certain extent been treated by 
 common-law courts as imperfeet obligations. The mere existence- 
 of a liquidated claim on a trust against the trustee confers no legal 
 remedy. But the trustee may make himself legally liable in re- 
 600] spect of such a claim by an *account stated (6), or by a sim- 
 
 («) Plight v. Keed, 1 H. & 0. 703, 715, 716; 32 L. J. Ex. 265, 2!i9. 
 (*) Topham v. Morecroft, 8 E. & B. 972, 983; Howard v. Brownhill, 28 L. J, 
 Q. B. 23. 
 
 676 
 
LEGAL VIEW OF EQUSTABLE DEBTS. 600 
 
 pie admission that he holds as trustee a certain sum due to the 
 •cestui que trust (a). A court of law has also held that a payment 
 made by a debtor without appropriation may be appropriated by 
 the creditor to an equitable debt (6). 
 
 It may be useful to sum up in a more general form the results 
 which have been obtained in this chapter. 
 
 An imperfect obligation is an existing obligation which is not 
 directly enforceable. 
 
 This sfate of things results from exceptional rules of positive 
 law, and especially from laws limiting the right to enforce con- 
 tracts by special conditions precedent or subsequent. 
 
 When an agreement of imperfect obligation is executory, a righfc 
 of possession immediately founded on the obligation can be no 
 more enforced than the obligation itself. 
 
 ' Acts done in fulfillment of an imperfect obligation are valid, and 
 may be the foundation of new rights and liabilities, by way of con- 
 ■sidcration for a new contract or otherwise. 
 
 A party who has a liquidated and unconditional claim under an 
 imperfect obligation may obtain satisfaction of such claim by any 
 means other than direct process of law which he might have law- 
 fully employed to obtain it if the obligation had not been imper- 
 fect. 
 
 The laws which give rise to imperfect obligations by imposing 
 special conditions on the enforcement of rights are generally 
 treated as part of the law of procedure of the forum where they 
 prevail (c), and as part of the lex fori they are applicable to con- 
 tracts sued upon in that forum without regard to the law govern- 
 ing the substance of the contract (d), but on the other hand they 
 are not regarded in any other forum. 
 
 (a) Koper v. Holland, 3 A. & E. 99. 
 
 (b) Bosanquet v. Wray, 6 Taunt. 597. 
 
 (c) Contra, Savigny, Syst. 8. 270, 273. 
 
 (d) This (it is conceived) does not apply to revenue laws, and enactments 
 which are merely ancillary to revenue laws, such as the 30 Vict., c. 23, s. 7, as 
 
 ~to marine insurances. 
 
 677 
 
INDEX. 
 
 THE FIGURES REFER TO THE [ PASES. MATTER IN A NOTE IS REFERRED TO AS OF THE- 
 PAGE WHEREON THE NOTE BEGINS. 
 
 ACCEPTANCE OF CONTRACT: 
 
 within what time, etc., it must be communicated, 9 
 must be communicated in all cases, 10, 18 
 
 when the contract is made by correspondence ; difficulties of the subject, 11. 
 authorities reviewed, 13-18 
 will not relate back to date of proposal, 20 
 must be unqualified, 21 
 examples of insufficient acceptance, 21-23 
 with immaterial or ambiguous addition, 23 
 may be communicated by conduct (implied acceptance), 28 
 by conduct as well as by words must he certain 30 
 by receiving document with special conditions, 30-31 
 of general offer made by advertisement, etc., 180, 183 
 of misunderstood proposal, effect of, 419 
 And see Proposal of Contract. 
 
 ACCIDENT : 
 
 destroying subject-matter of contract, effect of, 362 sqq. 
 And see Impossible Agreements. 
 
 ACCOUNT, action of, 126 
 
 ACKNOWLEDGMENT : 
 of debt barred by Statute of Limitation, 571 
 what is sufficient, 572 
 See Limitation. 
 
 ACQUIESCENCE : 
 
 as affirmance of infant's sale of land, 42 
 
 as proof of assent, 112 
 
 can not exist without knowledge, 389, 516 
 
 as a bar to rescinding contract, 515 
 
 lapse of time as evidence of, 516-518 
 
 in cases of undue influence, 562 
 
 may work estoppel in equity, 581 
 
 (C79). 
 
•680 INDEX. 
 
 -"ACT OP GOD:" 
 
 meaning of; no general definition passible, 361 
 
 ADMINISTRATOR: 
 
 may retain out of the estate a barred debt due to himself, 571 
 right of retainer by, not affected by Statute of Frauds, 678 
 See Executor. 
 
 ADVERTISEMENT: 
 contract by, 174, sqq. 
 ■whether Statute of Frauds applies to, 186 
 See Contract. 
 
 AGENCY: 
 
 results of applying doctrine of, to contracts by correspondence, 12, 18 
 powers of partners and directors as agents. of firms 'and companies, 93, 94, 
 
 109, 110 
 general theory of agency as regards principal, 191 
 parties to actions on contracts made by agents, 224 sqq. 
 contract by authorized agent known to be such, 225 
 when agent is personally liable, 225 
 how agent's liability may be excluded or limited when he contracts in his 
 
 own name, 226 
 contract by agent for a government, 227 
 rights and liabilities of undisclosed principal, 227-229 
 rights of other contracting party, 228-229 
 election to hold principal or agent, 229 
 
 .AGENCY: 
 
 position of professed agent who has no authority; where a responsible prin- 
 cipal is named, 230-233, 482 
 
 where no responsible principal is named, 233-234 
 
 when professed agent may disclose himself as real principal, 234-235 
 
 effect of death or insanity of principal on subsequent contracts of agent be- 
 fore notice, 236 
 
 sub-agent appointed without authority is not agent of principal, 412 
 
 fraudulent misrepresentation or concealment of, 501-504 
 And see Agent, Principal and Agent. 
 
 .AGENT: 
 
 must not deal secretly on his own account in business of agency, 251 
 
 must not sell to or buy from himself, 252 
 
 so long as contract for sale made by, remains executory, can not repurchase 
 subject-matter thereof for his own benefit, 253 
 
 liable to principal for all profits made by him beyond his ordinary compen- 
 sation, 253 
 
 agreement with, in fraud of his principal, 253 
 
 nature of remedies applicable, 254 
 
 must account to principal notwithstanding collateral illegality in the trans- 
 action, 329 
 
 .knowledge of, is knowledge of principal, 225, 228 
 
INDEX. 681 
 
 Agen t — Continued. 
 
 if creditor has agent in country of enemy, payment to him by debtor resi- 
 dent there is lawful, 282 
 always liable for his own wrong, 504 
 And see Agency, Principal and Agent. 
 
 AGREEMENT: 
 
 Savigny's analysis of the conception, 1 
 as defined by him covers much more than contract, 2-3 
 common intention expressed by proposal and acceptance, 5 
 no contract'unless the terms are certain, 25 
 no contract where the promise is illusory, 26-28, 160 
 implied proposal or acceptance, 28 
 
 substituted, distinction between, and substituted performance, 81 
 Unlawful (which see),,Ch. VI. 
 
 ■ unlawful, the different classes of, 242 
 
 ■ contrary to positive law, 244 sqq. 
 to commit offense, etc., 244 
 wrongful as against third persons, 246 
 illegal by statute, 258 
 
 immoral, 266 
 .against Public Policy (which see), 275 
 
 See also Champerty. Marriage. Restraint or Trade. 
 impossible, 349 sqq. 
 
 See Impossible Agreements. 
 -conditions affecting validity of consent, 381 
 
 See Mistake, etc. 
 where there may be an apparent, but no real consent and no contract, 399 
 election to adopt, where originally void, 432 
 operation of document as, may be conditional, 439 
 
 parol addition to or variation in terms of— effect as regards specific perform- 
 ance,. 449 
 informal, how affected by Statute of Frauds, 578 sqq. 
 
 execution of, may be good consideration or accord and satisfaction, 579 
 
 effect of part performance, 580 
 
 ante-nuptial, how far made binding by post-nuptial settlement, 582 
 
 AGREEMENTS QF IMPERFECT OBLIGATION: 
 their nature and effects, 568 sqq. 
 
 conflict between lex fort and lex contractus, 573, 576, 592 
 general results as to, 600 
 
 APOTHECARIES: 
 
 can not recover charges unless properly qualified at time of services, 591 
 
 APPRENTICESHIP : 
 
 contract of, is personal, hence not assignable, 412 
 
 -ARBITRATION: 
 
 agreements for reference, 293-294 
 
 fight of action may be conditional on award, 294 
 
682 INDEX. 
 
 ARBITRATOR: 
 
 can recover remuneration on express contract, 593 
 
 in U. S. no presumption that services of, are gratuitous, 593 
 
 ARTIFICIAL PERSON : 
 nature of, 83 
 
 partnerships and other bodies treated as, by custom though not by law, 8f 
 separate estate of married woman, analogous to, 69 
 
 ASSIGNMENT: 
 of Contract (which see), 201 sqq. 
 
 ASSUMPSIT: 
 
 action of, its introduction, 127 
 
 AUCTION : 
 contract of sale by, complete when bid accepted by fall of the hammer, 179 ' 
 sale without reserve, rights of highest bona fide bidder, 179 
 rights and liabilities of auctioneer, 179, 226 
 agreement by several that one shall bid on behalf of all at sale by, when and? 
 
 when, not unlawful, 309-310 
 employment of puffers at, 493 
 
 AWARD: 
 
 whether stranger can be bound by, 188 
 mistake in, 393 
 
 BANKRUPTCY: 
 loan obtained by infant under pretense of full age provable in, 57 
 anomalous effects of on contractual rights, 192 
 secret agreements with particular creditors, void, 246 
 
 BARRISTER— 
 
 fees of, for advocacy npt recoverable from client, 594 
 
 for non-litigious business, gu., 594 
 
 fees paid by client to solicitor, whether recoverable by counsel, 595 
 
 judicial notice of counsel's fees in taxing costs, 596 
 
 BILL OP EXCHANGE : 
 
 infant's not void, but voidable, 40 
 whether it is an equitable assignment, 73 
 
 drawn by a person on himself may be regarded as his promissory note, 110 
 promise to accept, 186 
 
 indorsement of, when overdue, makes indorsee's rights subject to equities at- 
 taching to the bill itself, but not to collateral equities such as set-off, 214; — 
 215 
 between hostile countries, 283 
 And see Negotiable Instruments. 
 
 BILL OP LADING: 
 
 with special conditions, effect of acceptance of, 30-31 
 
 transfer of contract by indorsement of, 217 
 
 is not properly negotiable, 220 
 
 effect of misdescription of goods in, 468 
 
INDEX. 685 
 
 BOND: 
 
 of infant, voidable, not void, 36 
 with unlawful condition, void, 324 
 
 is absolute if the condition is impossible at the time, but discharged if it sub- 
 sequently becomes impossible, 377 
 with alternative conditions, where one impossible, 378 
 And see Conditions. 
 
 CANADA (LOWER), Civil Code of, 149, 546 
 
 CANCELLATION : 
 
 of instruments by courts of equity, 519 
 
 CARRIER: 
 
 contracts with, by receiving document with special conditions limiting his- 
 
 liability, 30-31 
 concealment of true value of goods from, 469-470 
 
 CATCHING BARGAINS: 
 rules of equity as to, 553 sqq. 
 what are marks of, 553 
 on what terms borrower relieved, 556 
 
 CAUSA: 
 in Roman law of contract, 122 
 its relation to cause in modern French, and consideration in English law, 152 
 
 CHAMPERTY: 
 definition of, 294 
 what amounts to, 295-297 
 
 bargains to find means for litigation and share property recovered, 297 
 solicitor can not purchase subject-matter of the suit from his client, 29£ 
 purchase of subject-matter of litigation not in itself unlawful, 299 
 statute of Henry VIII. against, 300 
 proceedings in lunacy exceptional, 302 
 not justified by kinship, 303 
 
 whether rules against apply to agreements made abroad, 339 
 And see ^tenanoe. ' 
 
 CHILDREN : 
 
 right of, to enforce provisions for their benefit in settlements, 194 
 custody of, agreements as to, 303-305 
 
 CHOSE IN ACTION: 
 assignment of, see Contract. 
 why formerly not assignable, 202 
 early authorities on assignment of, 237 
 
 purchase of, from one upon whom the owner has by assignment conferred the 
 apparent ownership, 214 
 
 COERCION : 
 money paid under, recoverable though the transaction otherwise unlawful, 
 
 331 
 and though circumstances do not amount to duress, 522 
 
"684 INDEX. 
 
 COMPANIES ACT, 1862: 
 
 company under, can not bind itself by contract for. purposes foreign to the 
 memorandum of association, 98, 114 
 
 COMPANY: r 
 
 general powers of incorporated, 90, 99 
 
 limited by special purpose of incorporation, 100, 103 
 
 has prima facie power to mortgage its property, 106 
 
 powers of directors, etc., limited by principles of partnership, 106 
 
 rights of dissenting shareholders, 107 
 
 how far third persons are bound to know limits of directors' authority, 94, 109 
 
 ratification of irregular transactions by assent of shareholders, 111 
 
 under Act of 1862, incapable of contracting for purposes not within memo- 
 randum of association, 114 
 
 when bound by negotiable instruments, 115, 117 
 
 when bound in equity by promoters' agreements, 188 
 
 unincorporated, power of to sue by public officer, 195 
 
 purchase of shares in order to sue company or directors at one's own risk is 
 not maintenance, 300 
 
 contract to take shares in not void, but only voidable on ground of error, etc., 
 414 
 
 sale of shares in, avoided by petition for winding-up unknown to parties, 425 
 
 duty of directors, etc., to state facts truly in prospectus, 480 
 
 duty of promoters to make full disclosure, 481 
 
 transfer of shares invalid when directors' consent obtained by fraud, 494 
 
 when bound by statements of directors, etc., 503 
 
 statements of prospectus addressed only to original shareholders, 505 
 
 repudiation of shares in, when too late, 494, 497, 507, 511 
 
 (winding up of) secret agreement to delay proceedings void, 292 
 And see Corporation. 
 
 COMPENSATION : 
 
 for misdescription on sale of land, 472 
 See Specific Performance. 
 
 COMPROMISE : 
 consideration for, 166 
 of criminal proceedings, 290-291 
 of civil proceedings, void when improperly cured, 292 
 can not be set aside for mistake or oversight as to particular points of law, 369 
 
 CONDITIONS: 
 special, on ticket, etc., how far binding on party taking the document, 30-31 
 in restraint of marriage, 307-308 
 
 to be performed by stranger, must be performed at obligor's peril, 354 
 impossible or necessary, 375 
 
 treatment of impossible conditions in bonds, 377-378 
 alternative conditions where one becomes impossible, 378 
 representations amounting to, their nature and effect, 464-466 
 
 CONDITIONS OF SALE: 
 
 effect of, on right to compensation, 473, 475 
 
INDEX. 635- 
 
 CONFLICT OF LAWS: 
 as to marriages prohibited by statute of the domicil of the parties, 257 
 sale of goods in a state where sale is lawful to be resold in a state where sale? 
 
 is unlawful, 320 
 as to lawfulness of agreements generally, 333 sqq. 
 how far foreign law will be admitted to decide lawfulness of agreement mada 
 
 abroad, 337 
 effect of change of law, 340 
 as to existence of remedy, 573, 576, 592 
 
 CONSENT: 
 to contract, conditions affecting validity of, 381 
 definition of, 400 
 
 CONSIDERATION: 
 
 the doctrine peculiar to English law, 151 
 
 possible connection with the causa of Roman law, 158 
 
 cause in modern French law, 152 
 
 gradual formation of the doctrine, 154 
 
 connection with the learning of uses, 156 
 
 points more lately settled; contracts in writing, 157 
 
 promises founded on moral duty, 157-158 
 
 examples of sufficient, 158, 159, 162 
 
 adequacy of, not material, 158 
 
 but whore it is on each side the payment of a fixed sum of money, 16 
 
 past, will not support an express promise, 158 
 
 when a part of, past, and a part not, will support express promise, 15* 
 
 may be contingent, 160 
 
 of unilateral contract, 160 
 
 reciprocal promises as, 160 
 
 promise must be enforceable, 161 
 
 promise to perform existing duty as, 161-164, 167, 571 
 
 how far required for discharge of contracts, 164 
 
 for variation of contracts, 165 
 abandonment or forbearance of rights, 165 
 
 forbearance must be definite and of a really disputed right, 165-167 
 compromises, 166 
 
 application of the doctrine in equity to contracts under seal, 167 
 specific performance of voluntary agreement not granted, 168 
 external evidence of, 169 
 
 illicit cohabitation, if future, an tmlawful consideration ; if past, no consider- 
 ation, 267 
 for agreement for separation, 271 
 
 for agreement in partial restraint of trade, sufficient if of some value, 313 
 unlawful, makes whole agreement void, 318 
 
 forbearance to enforce racing debts in conventional forum, whether a good, 345> 
 failure of, the true ground for recovering back compulsory payments, 522 
 inadequacy of, whether ground for refusing specific performance, 541 
 
 And see Undervalue. 
 execution of informal agreement as, 579 
 
€86 INDEX. 
 
 •CONSTRUCTION : 
 
 of contract, not altered by mistake of parties, 391-392 
 
 particular, of an ambiguous document, acted on by the parties will, if in itself 
 admissible, be adopted by the court, 392 
 
 rules of, common to law and equity ; general intent prevails, 434-435 
 
 correction of obvious mistakes by. 434 
 
 restriction of general words, 436, 442 
 
 What is a rule of, 437 
 
 peculiar rules in equity, 441, sqq. 
 CONTRACT. (See also Agreement ; Equity.) 
 
 definition of, 5, 6 
 
 made by correspondence, where concluded, 19 
 
 conclusion of, may be postponed until execution of formal instrument, 24 
 
 tacit contracts (promise inferred in fact) distinguished from quasi contracts 
 (promise implied by law), 29 
 
 •of infants. See Infants. 
 
 form of, 119, sqq. See Formal Contracts. 
 
 procedure upon, in early English law, 125 
 
 judgment treated as, for some purposes, 129 
 
 unilateral and bilateral, 160 
 
 consideration for discharge or variation of, 164 
 
 persons affected, by, 170, sqq. 
 
 for personal services or involving personal skill or a relation of personal con- 
 fidence, 172, 367, 411 
 
 parties must be ascertained at time of contract, 173 
 
 -contracts by advertisement, 174-185 
 
 legal theory of such contracts, 176 
 
 later extensions of the doctrine, 177 
 
 difficulties raised by the modern eases, 181, sqq. 
 
 revocation of proposal made by advertisement, 180, 182 
 
 performance of conditions of such proposal sufficient acceptance and consid- 
 eration for the promise, 180 
 
 subscriptions, 182 
 
 effect of Statute of Frauds on contracts by advertisement, 186 
 
 third persons not bound, 187 
 
 stranger to, may be liable in tort for procuring breach of, 188 
 
 novation, 189 
 
 third persons not entitled by the contract itself, 190, sqq. 
 
 how far trust is in the nature of, 193, 194 
 
 rights of children to enforce provisions for their benefit in settlements, 194 
 
 right of third person to sue on contract made for his benefit, 196-199 
 
 stranger can not sue for damage by nonperformance of, 197 
 
 attempts to enable a stranger to sue for couvenience of parties, 199 
 
 notes and bills payable to treasurer, etc., for time being, 200 
 
 assignment of contract, 201 
 
 under Judicature Act, by rules of equity, or by special statutes, 202, 203 
 
 rules of equitable assignment, notice to debtor, 204, 205 
 
 •what is meant by assignments being subject to equities, 206-207 
 
 assignment may be free from equities by agreement of parties, 208 
 
INDEX. 687 
 
 ■Cos tbacts — Continued. 
 
 instruments may be made transferable, 209-210 
 but not negotiable except by law merchant or statute, 211 
 nature of, in partnership with transferable shares, 215, 216 
 in bill of lading, transferable by indorsement, 217, 220 
 Unlawful, Ch. VI. 
 
 See Unlawful Agreements. 
 agreement to commit breach of, void, 246 
 forbidden by statute, 258 
 malum prohibitum and malum in se, 260 
 agreement may be not void though forbidden, 264 
 to make disposition by will, good by English law, 308 
 -unconditional, not excused by performance being in fact impossible, 356 
 to pay rent, not avoided in English law by accidental destruction of prem- 
 ises, 358 
 when held conditional on performance being or remaining possible, 360 sqq. 
 -construction of certain exceptions providing for accidents, 366 
 -dissolution of, by subsequent impossibility does not affect acquired rights, 870 
 
 See Impossible Agreements. 
 -effect of, not altered by mistaken construction acted on by party, 391 
 ambiguous, construction acted upon by parties will be adopted, 392 
 effect of including property in, by mistake, 415, 417 
 -satisfaction by stranger, whether a bar to subsequent action upon, 410 
 personal, can not be assigned, 411 
 
 in writing, can not be varied by verbal agreement, 438 sqq. 
 but may be verbally waived in equity, qu. whether at law, 439 
 apparent, where document not meant to operate as, 439 
 when voidable for Misrepresentation (which see), 464, 482 sqq. 
 
 And see Rescission. 
 representations, etc., not amounting to, may be binding as estoppel, 580, 584 
 requiring stamp, variation of, by subsequent unstamped agreement, 588 
 
 •CONTEACT BY COBBESPONDENCE: 
 how and when completed, 13 sqq. 
 present state of the law as to, 16, 18 
 where concluded, 19 
 
 •CONVEYANCE : 
 
 includes, but contains something beyond, agreement, 3 
 
 executed upon unlawful consideration, or for unlawful purpose, is valid, 269, 
 
 320, 328, 329 
 of mere expectancy, equity will give effect to, 302 
 
 ■COPYHOLDEB: 
 
 infant, must pay fine, 46 
 
 COPYEIGHT: 
 
 assignments of, 147 
 
 CORPOBATION: 
 
 sole and aggregate, 85 
 
 created by the laws of any of the United States, is a citizen of that state, 84 
 
688 INDEX. 
 
 Corporation — Continued. 
 is a person in law distinct from all the members composing it, 84, 88, 89" 
 can act only by agent, 86 
 can not incur strictly personal liabilities, 87 
 but may be liable ex delicto for acts of its agents, 87 
 may be liable in an action for deceit for the fraud of its agents, 87 
 may be liable in exemplary damages in some cases, 87 
 indictable in some cases, 87 
 conflicting theories of corporate powers, doctrines of special capacities ancfc 
 
 general capacity, 90-92, 97 
 dissenting members may restrain, from engaging in business not coming- 
 
 within its purpose as defined in its charter, 93, 100 
 when subscriber for stock in, released by subsequent fundamental alteration 
 
 of the organization or purpose of, 93 
 power of officers of, to bind, by apparently regular acts, 94, 109 
 powers of, how modified by considerations of public policy as to purposes of 
 
 incorporation, 95 
 and as to the interest of the public as investors, 97 
 capacities incident to, generally, 97, 99 
 may exercise all powers expressly conferred and all others necessary to the 
 
 exercise of those expressly conferred; necessary meaning not indispena- 
 
 ble, but reasonably incidental, 97 
 in TJ. S. can be created by the legislature only, 97 
 ultra vires, contracts of, 97 
 
 railway, can not make a lease of the undertaking, or sell or mortgage its fran- 
 chises, 101 
 created for special purposes; meaning of ultra vires, 104 
 application of doctrines of partnership and agency to powers of, 106 sqq. 
 parties to actions by dissenting shareholders to restrain action of, 107, 108 
 bill of exchange drawn by one officer of, on another, may be regarded as 
 
 promissory note of, 110 
 how far irregular transactions may be ratified by assent of all members,. 
 
 Ill sqq. 
 application of doctrine of public policy to powers of, 113 sqq. 
 power of to make negotiable instruments, 115-118 
 rights of holder for value of negotiable instruments made by, 115 
 doctrines of estoppel and part performance apply to, 118 
 contracts formerly required to be under seal, 130 
 
 presence of seal prima facie evidence that it was affixed by authority, 131 
 instrument to which seal affixed without authority not binding on, 131-132' ( 
 may make use of any seal; scroll seal may be sufficient, 99, 132 
 trading, contracts of, in course of business need not be under seal, 132 sqq. 
 rule in U. S. as to necessity of seal in contracts of, 132-133 
 as to necessity of seal, in contracts of non-trading corporations incidental to» 
 
 purposes of incorporation, 136 
 in appointments to office, 133, 137 
 
 may sue upon executed contract, though not originally bound, 138 
 liable on contract implied in law, 139 
 trover can be maintained agaiust, 139 
 
INDEX. 689* 
 
 Corporation — Continued. 
 
 statutory forms of contract, 139 
 
 summary of law as to form of corporate contracts, 140 
 
 whether seal equivalent to signature for marking negotiable instruments*. 
 116, 213 
 See Seal. 
 
 COVENANT: 
 
 relating to real property, person not party may take benefit of, 195 
 
 to pay money "under unlawful agreement, void, though distinct from the- 
 
 original agreement, 822 
 when covenants run with the land, 218 sqq. 
 difference between common law and equity, 221-224 
 
 CREDITOES: 
 agreements in fraud of, 247-249 
 
 money extorted to purchase assent of to composition may be recovered back,. 
 331 
 
 CUSTODY OF CHILDREN : 
 agreements as to, how far valid, 303, 305 
 
 CUSTODY OF INFANTS' ACT, 305 
 
 CUSTOMS OF LONDON: 
 as to infant apprentice, 48, 54 
 as to married women trading alone, 62 
 certain securities taken by chamberlain to go to successor, 86 
 as to leases, 127 
 
 DEATH: 
 of proposer operates as a revocation of offer, 20 
 civil, meaning of, 60 
 
 wife of person civilly dead can sue alone, 60 
 of principal, effect of on agents authority, 236 
 
 DEBENTURES: 
 transferable, rights of holder of, 209 
 
 DEBT: 
 action of, in early English law, 125 
 
 DECEIT, ACTION OF: 
 may lie against corporation, 87 
 what is ground for, 482 sqq. 
 
 DEED: 
 treated by early English writers as equivalent to Roman Stipulation, 12£ 
 why it can not be written on wood, 129 
 wbetherrwithin Statute of Frauds, 146 
 of agent, principal not liable on, 226 
 executed in error as to its contents, not binding, 401 sqq. 
 executed in favor of wrong party, whether void, 405, 409-410 
 of lunatic, whether void or voidable, 406 
 44 
 
690 INDEX. 
 
 DRUNKENNESS : (See also Lunatic.) 
 
 effect of, on capacity of contracting, same as of insanity, 77 
 contract of drunken inan voidable, not void, 80, 406 
 not of itself ground for refusing specific performance, 79 
 
 DURESS: 
 
 w*hat is at common law, 520 
 
 contract obtained by, voidable, not void, 520 
 
 when it consists in threats, threat must be of something unlawful, 521 
 
 recovery of money paid under compulsion, 522 
 
 EASEMENTS: 
 
 new kinds can not be created, 221 
 
 ECCLESIASTICAL LAW: 
 
 influence of on legal view of morality, 266, 270 
 
 ELECTION : 
 
 to avoid contract made in infancy, 42 
 to charge principal or agent, 229 
 to adopt agreement void for mistake, 431 
 And see Rescission. 
 
 ■"ENGAGEMENT:" 
 
 technical use of the term with reference to separate estate, 68 
 See Sepakate Estate. 
 
 EQUITIES : 
 
 assignment of contract subject to, 206 
 
 but may be excluded by agreement of parties, 208 
 
 may be excluded by estoppel, 214 
 
 attaching to negotiable instrument, 214 
 
 undisclosed principal must take agent's contract subject to, 228 
 
 EQUITY: 
 
 treatment of infants' marriage settlements in, 40 
 no specific, performance of infant's contract, 41, 44 
 liability of infant in, on false representation of full age, 56 
 •doctrines of, as to married women's separate estate, 65 sqq. 
 
 See Separate Estate. 
 adopts rule of law as to acts of lunatic, etc., 81 
 decisions on corporate powers in, 99, 106, li!8 
 whether the doctrine of consideration took its origin in, 156 
 what is good consideration in, 159 
 
 treatment of voluntary covenants and imperfect gifts in, 168, 169 
 treatment of contract by advertisement in, 184 
 when companies bound by promoters' agreements in, 188 
 who may be bound by or may enforce contract in, 189, 194, 197, 201 
 assignment of contract in, 202 sqq. 
 notice to debtor required, 205 
 assignee takes subject to " equities," 206 
 assignment " free from equities," 208 
 agrees with common law as to negotiable instruments, 212 
 
INDEX. 691 
 
 Equity— Continued. 
 
 doctrine of, as to covenants running with land, 219 
 
 conflict with common law on this question, 221-224 
 
 will not protect copyright of seditious or immoral publications, 274 
 
 will not protect trade-mark of an article intended to deceive the public, 274 
 
 will give effect to conveyance of mere expectancy, 302 
 
 rules of as to custody of infants, 304 
 
 doctrine of, as to unlawful agreements where parties not in pari delicto, 332 
 
 .apparent difference from common law, as to repayment of money paid un- 
 der contract when further performance becomes impossible, 370 
 
 contracts voidable in, on ground of fraud, etc., 383 
 
 rule of, as to purchase for value without notice, 387-388 
 
 will not deprive purchaser for value of any thing he has actually got, 388 
 
 .agrees with law as to recovering back payments made by mistake, 398 
 
 as to fundamental error avoiding agreement, 403, 415, 420, 426 
 
 decisions in, on sales of land where parcels included by mistake, 415, 417 
 
 on purchase of a party's own property by mistake, 427 sqq. 
 
 correction of obvious mistakes in expression both at law and in equity, 434 
 
 agrees with law in excluding parol evidence on questions of pure construc- 
 tion, 438-440 
 
 •oral waiver of written contract in, 439 
 
 restricted construction of general words in, 442 
 
 when time is of essence of contract in. 443 
 
 relief against penalties in, 445 
 
 treatment of mortgages in, 446-447 ' 
 
 admission of oral evidence as defense against specific performance of con- 
 tract in writing, 448-450 
 Bectificatioh of instruments in (which see), 450 sqq. 
 
 general rules of, as to misrepresentation, 464, 482, 485 
 
 Agrees with law as to creditor's duty to surety, 469 
 
 rules of, as to specific performance and compensation on sales of land, 472— 
 476 
 
 suits analogous to action of deceit in, 482 
 
 former difference of, from law as to sales by auction, 493 
 
 doctrine of, as to " making repreprcsentations good," 497 
 
 rules of, as to loss of remedies by acquiescence, 516 
 jurisdiction of, to cancel instruments, 519 
 
 doctrine of, as to undue influence, 523 sqq. 
 as to refusing specific performance on ground of undervalue, 64' 
 as to " expectant heirs," 547 
 as to "catching bargains," 653 
 as to part performance of informal agreement, 580 
 as to estoppel by representation or acqiescence, 580, 583 
 
 liabilities in, incidentally recognized at common law, 599 
 
 ESTOPPEL: 
 
 corporations bound by, 118 
 
 negotiabili:y by, 214 
 
 by negligence in execution of negotiable instrument, 402 
 
 by negligence, whether applicable to deeds, 402 
 
692 INDEX. 
 
 Estoppel — Continued. 
 of party who has induced a fundamental error by misrepresentation, 431 
 equitable doctrine of part performance rests on a principle analogous to, 438,. 
 
 581 
 by acquiescence, 581 
 extended doctrine of, in equity, 580, 583-584 
 
 EVIDENCE: 
 
 extrinsic, always admissible to show illegality of agreement.. 324 
 
 subsequent conduct of parties may be evidence of original unlawful inten- 
 tion, 325 
 
 rules of, distinguished from rules of construction, 437 
 
 parol, not admitted to vary written contract, 438-440 
 
 oral waiver of written agreement, 439 
 
 oral, admissible to show that written document is not the record of a con- 
 tract between the parties, 439-440 
 
 of oral variation, admission of in actions for specific performance, 448 
 
 oral, inadmissible to rectify instrument where there is previous agreement in* 
 writing, 451 
 
 but admissible where there is no previous agreement in writing, 451-453 
 
 to rectify instrument, must be beyond a reasonable doubt, 453 
 
 EXECUTORS : 
 
 general right and liability of, on contracts of testatator, 187 
 
 can not sue or be sued on contracts of personal service, 367 
 
 or on contract to marry, 370 
 
 purchase by, of part of testator's estate, 533 
 
 right of retainer by, 571, 578 
 
 EXPECTANCY : 
 sale of, not unlawful, 302 
 
 EXPECTANT HEIES: 
 protection of, by courts of equity, 547 sqq. 
 
 FIDUCIARY RELATION: 
 
 between contracting parties, effect of, 524 sqq. 
 instances of, 534 sqq. 
 
 FORBEARANCE TO SUE: 
 
 as consideration for promise, 165-166 
 
 FOREIGN LAW: 
 
 foreign revenue laws said to be disregarded, 284 
 as to stamps, effect of, 285 
 
 agreements lawful by, but not by law of forum, treatment of, 337 
 subsequent prohibition by, deemed to make performance of contract not un- 
 lawful but impossible, 340 
 contract rendered impossible of performance by, not discharged, 358, 378 
 money paid under mistake of, may be recovered back, 397 
 And see Conflict op Laws. 
 
 FORFEITURE: 
 
 relief against, in equity, 445 
 
INDEX. 693 
 
 FORMAL CONTRACTS: 
 
 their importance in ancient law, 119-120 
 position of informal contracts in Roman law, 121-123 
 in old English law, 1 24, 125 
 requirements of form now the exception, 129 
 contracts of record, 129 
 cases where form specially required, 130 sqq. 
 marriage not a formal contract in U. S., 130 
 See Corporations, Frauds (Statute of). 
 
 .FRAUD : 
 
 of agent, corporation liahle for, 87, 88 
 
 on creditors, in composition, etc., 247 
 
 on third party, makes agreement void, 246 
 
 settlements in fraud of marital right, 254-256 
 
 dissimulation of unlawful purpose by one party to contract is, 342 
 
 delivery of goods to wrong person obtained by, passes no property, 409 
 
 passive acquiescence in self-deception of other party is not, 422 
 
 how distinguished from misrepresentation, 489 
 
 what is fraudulent representation or concealment, 490 
 
 purchase of goods by one not meaning to pay is, 490 
 
 mere non-disclosure by purchaser of his insolvency is not, 490 
 
 mere silence is not in ordinary cases, 482, 491-492 
 
 reckless assertions, 482, 484, 492-493 
 
 special doctrines as to sales by auction and marriage, 493 
 
 transaction voidable when consent of third person obtained by, 494 
 
 rules as to rescinding contract for, how far the same as for simple misrepre- 
 sentation, 495, 496, 502 
 
 contract incidental to a fraud is itself fraudulent, 500 
 
 contract induced by, voidable, not void, 506 
 
 never sufficiently pleaded except by statement of the facts on which the 
 charge is based, 518 
 
 undervalue, as evidence of, 539-541 
 And see Rescission. 
 
 FRAUDS, STATUTE OF: 
 substituted performance of agreement within, 31 
 as to special promise by executor, 142 
 as to guaranties, 142 
 
 as to agreements in. consideration of marriage, 142 
 as to interests in land, 143 
 
 as to agreements not to be performed within a year, 145 
 as to the note or memorandum, 7, 145 
 whether applicable to deeds, 146 
 foreign laws analogous to, 149 
 
 whether applicable to contracts by advertisement, 186 
 -waiver of contract within, by oral agreement, 439 
 
 -whether equity will on oral evidence rectify an agreement within, so as to 
 make it apply to a subject-matter which as written it does not cover, 448 
 . effect of, where writing does not represent real agreement, 448-450 
 
£94 INDEX. 
 
 Frauds, Statute or — Continued. 
 informal agreements within s. 4 not void : otherwise as to s. 17, 576 
 results of imperfect obligations under, 578 sqq. 
 results where agreement within has been fully or partly executed on one or - 
 
 both sides, 578-580 
 relation of, to equitable doctrine of part performance, 580-581 
 ante-nuptial agreements confirmed by post-nuptial writing, 582-583 
 
 GENERAL "WORDS: 
 
 restrained by context both at law and in equity, 436 
 
 and in equity by intention appearing from external evidence, 442 
 
 GERMAN COMMERCIAL CODE: 
 on formation of contracts, 32 
 
 exempts commercial contracts from requirements of form, 150 
 extends rule of market overt, 387 
 
 GIFT: 
 
 to make, requires assent of both donor and donee, 3 
 imperfect not aided in equity, 169 
 acceptance of, as loan, effect of, 3, 407 
 
 GOODS: 
 
 order for delivery of, may be assignable free from equities, 209 
 but can not be negotiable, 213 
 contract can not run with, 217 
 
 delivery of, to wrong person by mistake or fraud does not pass property, 407,. 
 409 
 And see Sale op Goods. 
 
 GUARANTY: 
 
 within Statute of Frauds, 142, 578 
 
 voidable for misrepresentation or dissimulation to surety, 469 
 
 HUSBAND AND "WIFE: 
 
 settlement in fraud of marital rights, 254-256 
 presumption of influence in contracts between, 525 
 
 See Married Women ; Serarate Estate ; Separation Deeds. 
 
 IGNORANCE: 
 of law may be material as excluding specific unlawful intention, 326, 341 
 does not in general exclude civil liability, 385 
 
 reckless or negligent, carries responsibilities of knowledge, 482, 483-484 
 See also Mistake. 
 
 "IGNORANTIA JURIS:" 
 meaning of, 428 
 
 ILLEGALITY. (See Unlawful Agreements.) 
 
 IMMORAL AGREEMENTS: 
 void : what are such, and what is immoral consideration, 266 sqq. 
 agreement immoral jure gentium can not be justified by any local law, 309* 
 
INDEX. 695' 
 
 IMMORAL PUBLICATIONS: 
 
 punishable by criminal law, and therefore no ground of civil rights, 274 
 
 IMPOSSIBLE AGREEMENTS : 
 
 general statement of law as to, 349 
 
 agreement impossible in itself void; what is meant by impossibility for this' 
 purpose, 350-351 
 
 "practical impossibility" not equivalent to absolute impossibility, 352 
 
 repugnant promises, etc., 352 
 
 promisor's not having means of performance is not impossibility, 353 
 
 warranty of acts of third persons, or natural event in itself possible, 353 
 
 agreement impossible in law void, 354 
 
 promisor excused when performance becomes impossible by law, 355 
 
 performance being impossible in fact, no excuse in absolute contract, 356-358 
 
 impossibility by foreign law no excuse, 358, 378 
 
 effect of accidents subsequent to contract; analogy of contract to pay rent,, 
 when premises accidentally destroyed, 358 sqq. 
 
 exception of accidents not contemplated by contract, 361 sqq. 
 
 where performance depends on existence of specific thing, 362 
 
 where subject-matter destroyed without fault on either side, 363, 364 
 
 state of things at date of agreement not contemplated by parties, 365 
 
 construction of covenants in mining leases, 365 
 
 express exceptions in commercial contracts, 366 
 
 agreement not to be treated as having become impossible if by any reason- 
 able construction it is still capable in substance of being performed, 366 
 
 where performance depends on life or health of a person, implied condition 
 that life or health shall continue, 367-370 
 
 anomalous treatment of contract to marry, 369 
 
 sickness supervening, preventing complete performance of personal services 
 under entire contract, 370 
 
 substituted contract becoming impossible of performance, 371 
 
 impossibility caused by default of promisor, equivalent to breach of contract, 
 371 
 
 by default of promisee, discharges promisor, and he may recover loss or re- 
 scind the contract, 371-373 
 
 alternative contracts where one thing is, or becomes impossible, 373 
 
 conditional contracts where the condition is, or becomes impossible, 375 
 
 when condition of bond impossible, obligation is absolute, 377 
 
 otherwise where the condition subsequently becomes impossible, 377-378 
 
 alternative conditions in bonds where one is, or becomes impossible, 378 
 
 Indian Contract Act on impossible agreements, 379 
 
 INDIAN CONTRACT ACT: 
 its definitions of agreement, etc., 6 
 
 on the communication, acceptance, and revocation of proposals, 18 
 on quasi-contracts, or contracts implied in law, 30 
 on proposal and acceptance, 31 
 on contracts of persons of unsound mind, 83 
 on discharge of contracts, 164 
 on parties to contract by agent, 236 
 
696 INDEX. 
 
 Indian Contbact Act — Continued. 
 on knowledge of agent being knowledge of principal, 225 
 makes wagers void, 277 
 
 provisions of, as to unlawful agreements, 345 
 provisions of, as to impossible agreements, 379 
 does not adopt English rule of market overt, 387 
 on material common mistake avoiding agreement, 425 
 on time being of essence of contract, 445 
 
 abolishes distinction between penalty and liquidated damages, 448 
 on distinction of mere silence from representation, 492 
 on sales by auction, 493 
 
 on responsibility of principal for fraud of agent, 503 
 on inadequacy of consideration, 541 
 
 on coercion, undue influence, fraud, misrepresentation, and mistake, 564 
 on rescission of voidable contracts, 566 
 
 INFANTS— 
 
 generally can not bind themselves by contract, 34 
 
 general statement of the law, 34 
 
 contracts of, voidable at common law ; no real authority for holding them in. 
 any case void, 35-41 
 
 tonds, 36 
 
 "trading contracts, 37 
 
 contracts of service, 37, 42 
 
 leases, 38 
 
 sales of land, 38, 42 
 
 partnership and shareholding, 38 
 
 marriage, 39 
 
 promise to marry, and marriage settlements, 40 
 
 negotiable instruments and account stated, 40 
 
 ■disaffirmance of deed of, 38 
 
 infant can not have specific performance, 41, 44 
 
 At what time he may avoid his contracts, 42 
 
 acts after majority which amount to affirmance of contract of, 42 
 
 sale of land, mere acquiescence for any time short of statutory period of lim- 
 itation will not amount to affirmance of, 42 
 
 rights and liabilities of, when contract avoided by, 42 
 
 liability on obligations incident to property ; leases and railway shares, 46 
 
 -whether liable on contract for his benefit not for necessaries, 41, 47 
 
 liable for necessaries, 48 
 
 what are necessaries, how ascertained, 49 
 
 question of fact, subject to question of law whether the things are prima fade 
 necessary, 49 
 
 liability for necessaries on simple contract only, 63 
 
 what contracts infant can make by custom or statute, 53, 54 
 
 not liable for wrong when the cause of action is substantially on a contract, 
 54, 55 
 
 but liable for wrong apart from contract, though touching the subject-matter 
 of a contract, 55 
 
INDEX. 697 
 
 Infants — Continued. 
 
 not liable at law for representing himself as of full age, 55 
 effect in equity of representing himself as of full age, 56-57 
 See also Necessaries. ' 
 
 INFANTS' RELIEF ACT: 
 
 does not make ratification wholly inoperative, 43 
 
 effect of section 1, 44 
 
 effect since the Act of affirming agreement voidable at common law, 597 
 
 INSANITY: 
 of proposer supervening operates as revocation of offer, 20 
 of principal, effect of on subsequent contracts of agent, 236 
 See Lttmatic. 
 
 INSURANCE: 
 contract of liberally construed in favor of true intention, 454 
 
 INSURANCE (FIRE): 
 effect of war rendering suit on policy within the time provided for in it im- 
 possible, 355 
 contract of insurer to reinstate is unconditional after election made, 357 
 effect of, as between landlord and tenant, 359 
 implies condition that property is correctly described, 468 
 
 .INSURANCE (LIFE): 
 
 result of war causing failure to pay annual premiums for, 282 
 no such duty of disclosure as in marine insurance, 467 
 
 INSURANCE (MARINE): 
 must be expressed in policy, 148 
 seamen's wages not insurable, 305 
 where voyage illegal to knowledge of owner, void, 321 
 voidable for material misrepresentation or non-disclosure, 466 
 stamped policy required by statute, 585 
 
 the "slip" nevertheless recognized for collateral purposes, 586 
 the rights of the parties determined at the date of the slip, ib. 587 
 
 KNOWLEDGE: 
 how far material on question of unlawfulness of agreement, 341 
 
 LAND: 
 Statute of Frauds as to sale of interest in, 143 
 what covenants run with, 218 sqq. 
 sale of by auction, employment of puffer at, 493 
 See Sale ot Land. 
 
 LAW MERCHANT: 
 peculiarities of, as to negotiable instruments, 212 
 not invariable, 214 
 
 .LEASE: 
 
 of infant at common law, voidable, 38 
 
 statutory powers of infants to renew and make, 54 
 
 statutory renewal of by married women, 64 
 
£98 INDEX. 
 
 "Lease — Continued. 
 
 Statute of Frauds as to, 144 
 
 of tenements for unlawful purpose, no action on covenants, 320 
 
 for lives, effect of contract for sale of, 429 
 
 LANDLORD AND TENANT: 
 
 covenants running with tenancy or reversion, 218 
 
 lessee may still be sued on his express covenants (but not in debt for rent) r 
 after assignment of the term, 218 
 
 lessor can not resume possession actually delivered on discovering unlawful 
 purpose or fraud of lessee, 320, 489 
 
 but may rescind if possession has not been delivered, 321 
 
 rent payable though premises accidentally destroyed, 358 
 
 lessee of apartments discharged from payment of rent by accidental destruc- 
 tion of building, 358 
 
 effect of insurance, as between, 359 
 
 lessor is not bound to inform lessee of state of premises, 479 
 
 lessor is liable in damages for non-disclosure of a fact known to him and not 
 discoverable by inspection, as that the premises are infected by a conta- 
 gious disease, 479 
 LEX LOCI: 
 
 marriage of domiciled British subjects wherever celebrated, governed by 
 English law, 257 
 
 requirement of stamp, how treated in foreign court, 285 
 
 by what local law the lawfulness of an agreement is determined, 333 
 See Conflict or Laws. 
 
 LIMITATION, STATUTE OP: 
 
 promise or acknowledgment by married woman can not revive barred debt, 60- 
 
 promise to pay debt barred by, 149, 571-572 
 
 debts not extinguished; results, 570-571 
 
 barred debt can not be set off, 571 
 
 right of action restored by subsequent acknowledgment, 571 
 
 what is sufficient acknowledgment, 572 
 
 acknowledgment operates as new promise in case under statute of James,. 
 
 571-572 
 otherwise of specialty debt under statute of William IV., 572 
 applied according to lex fori, not lex contractus, 573-574 
 
 LIQUIDATED DAMAGES: 
 distinction of, from penalty, 447 
 
 LUNATIC: 
 
 marriage of, void, 76 
 
 so found by inquisition, incapable of acts in the law, 76 
 
 liable for necessaries; what included in the term, 77 
 
 contracts in lucid intervals, and contracts prior to lunacy, good, 77 
 
 lunacy or drunkenness no answer to action for money had and received, IT 
 
 power of attorney executed by, void, 78 
 
 contract of (not so found by inquisition), in general voidable, not void, 80 
 
 history of different doctrines on the subject, 77-80 
 
INDEX. 699 
 
 I/CN atic — Continued. 
 
 statement of tbe modern rule, 82 
 
 negotiable paper made by, unimpeachable in hands of holder for value, 82 
 
 inquest of lunacy found against one of the members ^of a partnership ope- 
 rates as a dissolution of the firm, 82 
 
 contract of, why only voidable though he has no agreeing mind, 406 
 
 deed of, whether voidable or void, 406 
 
 whether action lies to recover land conveyed by, without first restoring the- 
 consideration received, 406 
 
 MAINTENANCE: 
 
 attempts to oppose equitable assignments on ground of, 239 
 
 definition of; it includes champerty, 294 
 
 ■What amounts to, 295-297, 302 
 
 statute of Henry VIII. against buying pretended titles, 300 
 
 what dealings are within the statute, 301 
 
 no maintenance without unlawful,intention, 303 
 
 may be justified by kindred or affinity, 303 
 
 MALUM PROHIBITUM, and malum in se, 260 
 
 MAEITAL EIGHT: 
 
 settlements in fraud of, 254-256 
 
 MARKET OVERT: 
 not recognized in U. S., 387 
 sale of horses at, 148 
 
 MARRIAGE : 
 
 of infants, 39 
 
 promise of, infant may sue but is not liable on, 40 
 
 agreements in consideration of, 143, 581 
 
 settlements in fraud of marital right, 254-256 
 
 marriages which are prohibited as against public policy, 256-257 
 
 of members of Royal Family, Act regulating, 258 
 
 agreements in general restraint of, void, 306 
 
 conditions in restraint of, 307-308 
 
 polygamous, not recognized by English Divorce Court, 335 
 
 illness unfitting for, does not avoid contract to marry, 369 
 
 executors can not sue or be sued on contract to marry, 370 
 
 contract to marry not uberrimce fidei, 481 
 
 not rendered invalid by fraud, 493 
 
 is not such part performance as to make agreement in consideration of, bind- 
 ing in equity, 581 
 
 informal agreements in consideration of, how far made valid by post-nuptial?. 
 settlement, 582 
 
 MARRIED WOMEN: 
 married woman not liable for fulsely representing herself as sole, 58 
 at common law can not contract, 58 
 even if living and trading alone, 59 
 acquisition of things in action by, 59 
 
'700 INDEX. 
 
 . Makkied "Women — Continued. 
 
 renewed promise by, can not revive barred debt, 60 
 exceptions to incapacity ; queen consort, 60 
 wife of person civilly dead, 60 
 wife of alien who has never been in England, 61 
 
 wife of husband who was never within the state, or has gone beyond its juris- 
 diction renouncing his marital rights and duties, 62 
 custom of London as to sole trader, 62 
 exceptional contracts with husband as to separation, 62 
 statutory exceptions, judicial separation, etc., 62 
 Married Women's Property Act, 63 
 liability for ante-nuptial debts under, 72 
 statutory provisions for renewal of leases by, 64 
 •whether they may be bound by estoppel, 70, 584 
 
 Separate Estate (which see), 65 sqq. 
 agreement by to execute power, apart from separate use, 76 
 settlements in fraud of marital right, 254-256 
 
 MAXIMS : 
 
 alteri stipulari nemo potest, 152 
 
 in pari delicto potior est conditio defendentis, 327 
 
 locus regit actum, 340 
 
 non videntur qui errant consentire, 384 
 
 nulla voluntas errantis est, 389 
 
 ignorantia juris haud excusat, 428 
 
 mala grammatica non vitiat chartam, 435 
 
 expressio unius est exclusio alterius, 437 
 
 verba accipiuntur fortius contra proferentem, 476 
 
 MEDICAL PRACTITIONERS: 
 
 regulations of Medical Act as to their right of remuneration, 691 
 conditions precedent to recovering charges, 593 
 presumption of influence in gifts, etc., from patients, 536 
 See Physicians. 
 
 MINES : 
 construction of unqualified covenants to work, 365 
 
 MIS LIEPRESENTATION : 
 
 producing fundamental error, makes agreement void as against third persons, 
 
 but as between the parties binding by estoppel at the option of the party. 
 
 misled, 430 
 fraudulent or non-fraudulent, 461 
 
 general doctrines of common law and of equity, 462, 463 
 distinction of it from mere non-disclosure, 453, 460, 463, 469 
 special rules as to, in contracts of insurance, 466-468 
 in contract of suretyship, 469-471 
 in contract for sale of land, 472 
 
 rules of equity as to performance with compensation, 472 
 duty of vendor to describe property correctly, 476-479 
 "in family settlements, 479 
 
INDEX. 701. 
 
 Misrepresentation — Continued. 
 in contract to take shares, 480 
 in contract to marry, 481 
 effect of on contracts in general, 482 sqq. 
 when it is an actionable wrong, 482 
 
 material, though innocent, makes contract voidable in equity, 483, 485 
 where party misled has means of knowledge, 486 
 immaterial, in cases of active representation, unless he uses his means and 
 
 acts on his own judgment, 487-489 
 rights of party misled, 506 sqq. 
 And see Rescission ; Representation ; Sale op Goods ; Sale of Land.- 
 
 MISTAKE: 
 
 distinction of from Fraud, 382 
 
 in private law has not as such any universal consequences, 385 
 
 does not as a rule avoid liability, 385 
 
 certain exceptions to this for protection of persons acting under judicial pro- 
 cess, 380 
 
 sometimes a condition of title; purchase for value without notice, 387-388 
 
 does not as a rule alter existing rights of the party or of other persons; in- 
 stances of misdelivery of goods and payments to wrong persons, 390 
 
 mistake in construction by parties does not alter contract, 391-392 
 
 special cases where it is of real importance, 393 
 
 mistake of fact and of law, 393 
 
 the distinction is really of limited application, 394 
 
 cases where it is not applicable, 395 
 
 cases of compromise, etc., 396 
 
 the distinction does apply inflexibly to recovering back money paid by mis- 
 take, 397 
 
 and in equity as well as at law, 398 
 
 money paid under a mistake of foreign law is treated as paid by mistake of 
 fact, 397 
 
 mistake excluding true consent, 399 
 
 different kinds of fundamental error, 400 
 
 as to nature of transaction, 401 sqq. 
 
 as to its legal character (as whether sale or gift), 406-407 
 
 mistaken delivery of money, etc , passes no property, 407 
 
 as to person of the other party, 407-410, 457-458 
 
 partial exceptions to the rule in assignment of contracts and agency, 411, 412 
 
 as to subject-matter of the contract, 413 
 
 herein as to the specific thing, 414-417 
 
 as to nature of company in which shares are taken, 413-414, 417-418 
 
 decisions in equity on sales of land where parcels included by mistake, 415- 
 
 as to kind or quantity, 418 
 
 or price, 419 
 
 or other material attribute of 'subject-matter, 420 
 
 when error must be common to avoid agreement, 421, 422 
 
 cases of mi-description on sales of real property, 424 
 
 as to existence of subject-matter, 425-426, 429 
 
■702 
 
 INDEX. 
 
 M istake — Continued. 
 
 agreements to purchase or pay rent for property really one's own,. 427-429 
 results where only one party is ignorant of the material fact, 429-430 
 where fundamental error produced by misrepresentation, 430-431 
 rights and remedies of parties, where agreement void for fundamental error, 
 
 432 
 election to adopt agreement, 432-433 
 mistake in expression of true consent, 433 sqq. 
 correction of obvious mistakes by ordinary construction, 434 
 restriction of general words, 430, 442 
 
 in expression of contract, a bar to specific performance, 448 
 Bectificatioh of instruments on ground of (which see), 450 sqq. 
 
 MONEY PAID: 
 
 by infant under voidable contract, recovery of, 42 
 
 by mistake, whether separate estate liable for repayment of, 74 
 
 at the request of loser of wager in papment thereof, may be recovered from 
 him, 265 
 
 under Unlawful Agreement (which see), when it can be recovered back, 
 327 sqq. 
 
 in actual ignorance of fact, though with means of knowledge, recoverable, 
 394, 397 
 
 with knowledge of facts, though under mistake of law, not recoverable, either 
 at common law or in equity, 394, 397, 398-399 
 
 .apparent exception in bankruptcy, 398 
 
 under a mistake of foreign law treated as paid by mistake of fact, hence re- 
 coverable, 397 
 
 can not be recovered back where former state of things can not be rest 
 512 
 
 under compulsion, recoverable, 522 
 
 under informal agreement within s. 4 of Statute of Frauds not recovera- 
 ble, 578 
 
 for small debts within Tippling Act, not recoverable, 597 
 
 MONEY RECEIVED: 
 
 drunkenness or lunacy no answer to action for, 77 
 action for, lies against corporation, 139 
 
 MORTGAGES : 
 
 treatment of in equity, 446-447 
 
 the court will treat nominal sale as if such is true intention, 446 
 
 sale with option to repurchase distinguished, 446 
 
 " once a mortgage, always a mortgage," 446 
 
 principles applicable to sale of his equity of redemption by mortgagor to 
 mortgagee, 446, 540 
 
 may bo foreclosed after right of action on the debt which it secures has be- 
 come barred by statute-of limitation, 570 
 
 NECESSARIES: 
 
 liability of infant for, 35, 48 sqq. 
 
INDEX. 703 
 
 Nec ess artes — Continued. 
 
 the only contract binding on an infant is the implied contract for necessa- 
 ries, 41 
 
 what are, a question of mixed fact and law, the court say if things are prima 
 facie necessary ; the jury say if they are in fact necessary, 49-50 
 
 ,if infant already supplied, can not bind himself for, 50 
 
 articles being capable of real use not a sufficient test of their being necessa- 
 ries, 51 
 
 obtained on credit, liability for, when infant has an income from which he 
 might keep himself supplied for ready money. 50-51 
 
 apparent means of buyer not material, 51 
 
 not confined to goods, 52 
 
 the liability is on simple contract only, 53 
 
 infant can make no binding executory agreement for purchase of, 53 
 
 stipulated price not binding on infant; seller recovers only the reasonable 
 value of articles furnished, 53 
 
 infant, though too young to understand the nature of a contract, is liable for 
 necessaries furnished, 53 
 
 infant is liable for money paid at his request to a third person for necessaries 
 furnished, 53 
 
 infant not liable at law for money loaned him with which to purchase neces- 
 saries, 53 
 
 but liable in equity if the money was so applied, 53 
 
 liability of lunatic for, 77 
 And see Infants. 
 
 NEGLIGENCE: 
 
 of agent, corporation answerable for as well as natural person, 87 
 agent must not profit by his own, 254 
 
 of person signing negotiable paper in error as to nature of instrument, 402 
 does not exclude right to rescind for misrepresentation, 486 
 
 NEGOTIABLE INSTRUMENTS: 
 power of corporation to make, 115-118 
 must be in writing, 141 
 
 payable to treasurer, etc., of a society for time being, bad, 200 
 peculiar qualities of, 211 
 rights of holders for value, 212 
 
 no title to sue on can be made through a forged indorsement, 212, 388 
 what can be admitted as, 213 
 how they cease to be so, 214 
 negotiability by estoppel, 214 
 
 principal bound by acceptance of agent though, not in principal's name, 226 
 made by agent of unnamed principal, 226 
 a, person may become parly to, by any mark or designation he chooses to 
 
 adopt as a substitute for his name, 226 
 if consideration of, fraudulent or illegal burden of proof is on holder to show 
 
 that he is holder for value, 265 
 signature of, in error as to nature of instrument, not binding, 402 
 
704 INDEX. 
 
 N kgotiablk Instruments — Continued. 
 
 hut, only voidable, not void, if person signing was guilty of negligence, 402 
 signed in blank, 402-403 
 
 And see Bill op Exchange. 
 
 NOTICE: 
 
 assignee of married woman's separate property with, bound by engagement 
 affecting it, 70 
 
 to debtor, of assignment of contract, 204 sqq. 
 
 purchaser for value without, of non-negotiable chose in action from one- 
 upon whom the owner has by assignment conferred the apparent owner- 
 ship, protected, 214 
 
 until lessee has, of any grant over of the reversion he may safely pay rent to- 
 his lessor, 218 
 
 purchase for value without, 387-388 
 
 purchaser for value without, from fraudulent vendee and fraudulent possessor 
 of goods, 513, 514 
 
 attaching creditor of fraudulent vendee is not entitled to protection of pur- 
 chaser for value without notice, 513 
 
 whether one receiving the goods in payment of a precedent debt is, 513 
 
 NOVATION : 
 
 its nature explained, 189 
 
 NUDUM PACTUM: 
 in Roman law, 122 
 change in the meaning of the term in English use, 155 
 
 NUISANCE: 
 
 corporation indictable for, 87 
 
 OFFENSE: 
 
 agreement to commit, void, 244 
 compounding of, 290, 291 
 
 OFFER. (See Proposal.) 
 
 OFFICES: 
 
 appointments to, by corporations, 133, 137 
 sale of, unlawful, 289 
 
 PAP. DELICTUM: 
 doctrine of, 327-329 
 qualifications of and exceptions to it, 329, 331 
 
 PART PERFORMANCE: 
 equitable doctrine of, 580-581 
 
 marriage not such, as to make a contract in consideration of marriage good> 
 in equity, 581 
 
 PARTIES. (See Contract.) 
 to contract, rules as to, 171 sqq. 
 to action on contract made by agent, 224 sqq. 
 
INDEX. 705 
 
 .PARTNER : 
 
 infant may be, 38-39, 43-44 
 extent of partner's authority to bind the firm, 93 
 
 one can not transfer his share so as to force a new partner on the other mem- 
 bers of the firm without their consent, 411-412 
 
 •PARTNERSHIP: 
 
 inquest of lunacy found, against one member operates as dissolution of, 82 
 no majority of the partners can bind a dissenting partner to engage the firm 
 
 in transactions beyond its original scope, 93 
 shares in, transferable at common law, 215-216 
 the outbreak of a war dissolves a partnership previously existing between 
 
 subjects of the hostile countries, 282 
 bill of partnership account of profits realized from illegal business, 244, 829 
 
 PATENTS: 
 
 assignments of, 147 
 
 PENALTIES : 
 
 imposition of, by statute implies prohibition, 260 
 relief in equity against, 445-447 
 and liquidated damages, 447-448 
 
 PERSONAL CONTRACTS : 
 
 implied condition in, as to life or health of party continuing, 367-370 
 not assignable, 411-412 
 
 PHYSICIANS: 
 
 presumption of influence in transactions between physician and patient, 525, 
 
 536 
 
 .rights of, as to payment for services at common law, 591 
 
 in TJ. S. no presumption that services of, are honorary or gratuitous, 591 
 
 under Medical Act, 591, 592 
 
 PRINCIPAL AND AGENT: 
 
 principal when liable on contracts made by agent, 225 sqq. 
 agent for foreign principal, 226 
 technical rule as to deed executed by agent, 226 
 
 rule as to negotiable instruments made by agent of unnamed principal, 226 
 rights and liabilities of undisclosed principal, 227-229 
 principal not liable if exclusive credit given to agent, 229 
 when professed agent may declare himself as real principal, 235 
 effect of death of principal on agent's authority, 236 
 -effect of insanity of principal on agent's authority, 236 
 if agent appoints » sub-agent without authority, sub-agent is not agent of 
 
 principal, 412 
 principal when answerable for representations of agent, 501-504 
 agent always liable for his own wrong, 504 
 
 .agent dealing on his own account with his principal must show that he has 
 given full information, 532 
 And see Agency ; Agent; Set-off. 
 45 
 
706 INDEX. 
 
 PRIVITY. (See Contract.) 
 
 PEOMISE: 
 as constituting contract, 5 
 illusory, 26-28, 160 
 
 inferred in fact or implied by law, 28-29 
 
 founded on moral duty, not binding without valuable consideration, 157-168 ; 
 too vague to be enforced, 161 
 
 how far promise to perform existing duty can be consideration, 161, 163-164 
 by advertisement or general announcement, nature and limits of, 174 sqq. 
 by A. to B. for the benefit of C, whether C. can sue A. on, 196-199 
 to several, whether one can sue on, 199 
 
 PROMISES: 
 
 in same instrument, where some lawful and some not, 317-318 
 
 PROMOTERS : 
 
 agreements of, when binding on company, 188 
 fiduciary relation between, and company, 481 
 statements of, may becorue statements of company, 503 
 
 PROPOSAL OE CONTRACT: 
 
 may be revoked at any time before acceptance, but not afterwards, 8 
 
 revocation must be communicated, 8, 10 
 
 determination of by lapse of prescribed, or reasonable time, 8, 9 
 
 may prescribe time and form or place of acceptance, 9 
 
 can not prescribe form or time of refusal, 9 
 
 after determination of there can be no acceptance, 9 
 
 is revoked by death of proposer before acceptance, 20 
 
 whether revoked by insanity of proposer before acceptance, 21 
 
 by Indian Act only if death or insanity known to other party, 19, 20-21 
 
 proposal or acceptance may be communicated by conduct as well as by words- 
 
 (implied proposal or acceptance), 28 
 tacit proposals and acceptances must like express ones be communicated, 29 
 made by advertisement, revocation of, and expiration of by lapse of time,. 
 180, 182 
 And see Acceptance of Contract. 
 
 PUBLIC POLICY : 
 
 corporate powers must not be used to defeat purposes of incorporation, 
 
 95-96 
 doctrine of, applied to corporate acts, 113 sqq. 
 marriages which are prohibited as being against, 257 
 the doctrine of, extended in order to discourage wagers, 276 
 opinions in Egerton v. Brownlow, and effect of the decision, 278-280 
 rules not to be arbitrarily extended, 281 
 trading with enemies, 281-283 
 aiding hostilities against friendly nations, 283-284 
 contracts payable in Confederate currency, 284 
 as to foreign revenue laws, 284-285 
 agreements for corrupt or improper influence, 286-288 
 sale of offices, etc., 289 
 
INDEX. 707" 
 
 Public Policy — Continued. 
 
 assignments of military pay and judicial salaries, 289 
 
 interference with course of justice, 290 sqq. 
 
 stifling prosecutions, compounding offenses, 290, 291 
 
 agreement for collusive conduct of divorce suit, 292 
 
 secret agreement as to conduct of winding up, 292 
 
 agreements for reference to arbitration, 292-294 
 
 maintenance and champerty, 294 sqq. 
 
 agreements as to custody of children, 303-305 
 
 insurance of seamen's wages, 305 
 
 as to agreements limiting freedom of individual action, 305 sqq. 
 
 agreements in restraint of marriage, 306-308 
 
 marriage brokage agreements, 306 
 
 agreements to influence testator, 308 
 
 agreements in restraint of trade, 309, sqq. 
 
 agreement by several that one shall, on behalf of all, bid for public contract,. 
 
 or at a sale by auction, when and when not unlawful, 309-310 
 agreements against interests of state where sued upon can not be supported 
 
 by any local law, 333 sqq., 339 
 And see Champerty ; Maintenance ; Eesteaint or Tbade ; Tradino 
 
 with Enemies; "War. 
 
 PUBLICATIONS: 
 
 immoral, etc., can not be ground of civil rights, 274 
 
 QUASI-OONTKACTS : 
 distinguished from tacit but real contracts, 29 
 
 appear as fictitious contracts in English law; dealt with separately in Indian 
 Contract Act, 30 
 
 EAILWAY COMPANY: 
 purchase of shares in or promotion of by another railway company, 93, 
 
 100, 102 N 
 
 lease by, of its undertaking, or grant of exclusive running powers, 101 
 liability of, as to correctness of time-table, 177 sqq. 
 as to published regulation regarding fares, 178 
 See Corporations. 
 
 KATIEIOATION : 
 
 of infant's contract, 42, 43 
 
 of irregular act by assent of shareholders, 95, 111 . 
 of agent's acts, 192, 233 
 
 must be by one who might have been originally bound, 233 
 essential to, that party ratifying should be able not merely to do the act rati- 
 fied at the time the act was done, but also at the time the ratification was 
 made, 233 
 
 RECORD : 
 
 contracts of, 129 
 
TOS INDEX. 
 
 RECTIFICATION OF INSTRUMENTS: 
 
 against mistake of draftsman arising from misapprehension of instructions or 
 
 ignorance of law, 395 
 equity will not reform an instrument by inserting in it a clause which the 
 
 the parties deliberately agreed to leave out, or substitute for the form of 
 
 security they have chosen another which they rejected, 395 
 -whether oral evidence is admissible when contract is within Statute of 
 
 Frauds, 448 
 jurisdiction of the court in, 450, 454 
 oral evidence, how far admissible, 448, 451-453 
 & common intention of all parties different from the expressed intention must 
 
 be shown, 453 
 proof of one party's intention will not do, 453, 454 
 possible exception where one party acts as other's agent, 454-555 
 mistake on plaintiff's part and fraud on part of the defendant may be ground 
 
 for, 453 
 to warrant, proof must be beyond a reasonable doubt, 453 
 special rules as to settlements, 455 
 &i whose suit granted, 456 
 
 voluntary deed will not be rectified against grantor, 456 
 "option to rectify or set aside in certain cases, 456-457 
 new conveyance not required, 457 
 no jurisdiction to rectify wills, 459 
 
 REDUCTION INTO POSSESSION: 
 of married woman's chose in action, 59 
 
 RELEASES : 
 
 restricted construction of in equity, 442 
 
 REPRES liNTATION : 
 
 of full age by infant, liability on, 55, 56, 57 
 
 of discoverture by married woman, 58-59 
 
 when silence is or is not equivalent to, 482, 492 
 
 responsibility ex delicto for false, 482, 483-484 
 
 what conditions it must satisfy to be relied on for rescinding contract, 495 sqq. 
 
 it must generally be of fact, not of law, 495-496 
 
 nor of mere motive or intention, 496 
 
 the equitable doctrine of "making representations good" distinguished, 
 
 497-498 
 it must in fact have had material influence in inducing the contract, 499 
 but need not have been the sole or predominating inducement, 499-500 
 must be made by a party to the contract, 501 
 of agent, when principal liable for, 501-504 
 must be made as part of same transaction, 504-505 
 And see Misrepresentation; Rescission. 
 
 RESCISSION : 
 
 right of, on discovering unlawful purpose of other contracting party, 320 
 ritrht of,- for breach of" warranty on sale of specific chattel, 414, 421 
 of contract for misrepresentation, 466 sqq., 482, 485 
 
INDEX. 709» 
 
 Rescission — Continued. 
 
 for fraud or misrepresentation not allowed unless (in general) the representa- 
 tion was of fact, 495-496 
 
 and in fact induced the contract, 499 
 
 but need not have been the sole or predominating inducement, 499-500 
 
 option to affirm or rescind contract for fraud, etc., 507 
 
 election how determined, 507 \ 
 
 treating contract as subsisting, taking steps to enforce it, 507-508 ( 
 
 election to rescind must be communicated, 508 
 
 what communication sufficient, 509 
 
 by or against representatives, 510 
 
 not allowed where former position can not be restored, 510-512 
 
 where party entitled to rescind has done acts of ownership, etc., 512 
 
 not allowed against purchaser for value, 512-513 
 
 effect of winding up, appointment of receiver, etc., on shareholders right of, 
 514-515 
 
 allowed against persons taking gratuitous benefit under fraudulent transac- 
 tion though themselves innocent, 515 
 
 must be within reasonable time, for length of time is evidence of acquies- 
 cence, 515-518 
 
 for undue influence, 561 sqq. 
 
 RESTRAINT OF TRADE: 
 
 agreements in unlimited restraint of trade void, 309 
 
 limited restraints admitted, 310 
 
 reasons for not allowing general restraint, 310 
 
 for allowing partial restraint, 310 
 
 questions as to historical origin of the doctrine, 311-312 
 
 what conditions such agreements must satisfy, 313 
 
 whether a limit in space is indispensable, 313 
 
 the rule as to limits of space does not apply to contracts of partnership or 
 
 service, or for preservation of trade secret, 314 < 
 
 agreement in, may be divisible, and hence valid in part and void in part, 
 
 314 
 table showing what restrictions have been held reasonable in recent cases, 
 
 315-316 
 distances, how measured, 316 
 contract to serve for life or for exclusive service may be good, but must be 
 
 mutual, 316 
 
 REVERSION. (See Sale of Reversion.) 
 
 SALE: 
 of mere expectancy, valid by English law, otherwise by civil law, 302 
 of future specific product, contract discharged by failure of produce, 364 
 
 SALE BY AUCTION : 
 
 when warranted without reserve, 179 
 voidable for employment of puffier, if without reserve, 493 
 See Auction. 
 
5T10 INDEX. 
 
 •SALE OF GOODS: 
 
 to infant, not necessaries void by Infants' Relief Act, 43 
 
 Statute of Frauds as to, 144, 574-575 
 
 Bills of Sale Acts, 146 
 
 agreements in form executory contracts of sale, when treated as wagers, 277 
 
 sale of goods for unlawful purpose, 319-320 
 
 ■whether purchaser of specific chattel may rescind for breach of warranty, 
 414, 421 
 
 •warranty of title on, 415 
 
 -when goods ordered are sent together with goods not ordered, buyer may re- 
 fuse to accept any, 419 
 
 warranty or condition upon, 421, 464-466 
 
 by sample, rule as to secret defects in sample, 431 
 
 purchase by one not meaning to pay is fraud, 490 
 
 induced by fraud, effect of, 513 
 
 distinction where delivery is obtained by false pretenses without any con- 
 tract, 513-514 
 
 fraudulent, action for the price brought after discovery of the fraud is an 
 affirmance of the contract, 507 
 
 •SALE OF LAND: 
 
 by or to infant, voidable, 38 
 Statute of Frauds as to, 143-144 
 effect of mistake as to parcels, 415 sqq. 
 effect of mistake as to price, 420 
 
 effect of mistake as to area of a tract sold at a given rate per acre, 423 
 misdescription of thing sold distinguished from fundamental error, 424 
 mistaken purchase or tenancy of property really one's own, 427 sqq. 
 with option of or agreement for repurchase, 446 
 effect of misdescription on, 471 sqq. 
 .specific performance with compensation, 472 sqq. 
 duty of vendor to give correct description, 476 
 like duty of purchaser in special circumstances, 477 
 non-disclosure of latent defect of title, 478 
 by auction, employment of puffer at, 493 
 See Specific Performance. 
 
 •SALE OF OFFICES: 
 unlawful, 289 
 
 SALE OF REVERSION: 
 
 under old law voidable for undervalue, 549 
 
 the development of the doctrine by decisions, 550 sqq. 
 
 its abrogation by 31 Vict. c. 4, 552 
 
 the English doctrine in so far as it relates to vested interests not in force in 
 
 U. S., 550 
 by person in dependent position, present rule as to, 657 
 
 SEAL: 
 
 corporation may use any seal at common law, 99, 132 
 
INDEX. 711 
 
 •■Seal — Continued. 
 
 misapplication of, 118, 125 
 necessity of, in early English law, 124 
 
 specific performance of a voluntary contract under seal will not be granted, 
 168 
 See Coepokation. 
 
 .SEPARATE ESTATE: 
 
 origin of separate use, 65 
 
 earlier doctrines as to the power of binding separate estate, 66 
 
 " general engagements" may bind separate estate without special form, but 
 with proved or presumed intention, rules as to this, 67 sqq. 
 
 intention to bind presumed in the case .of debts contracted by a married wo- 
 man lining apart from her husband, 68 
 
 • or where a married woman gives a guaranty for her husband's debt or joins 
 him in making a note, 68, 69 
 
 is a quasi artificial person, 69 
 
 married woman may be shareholder in respect of, 69 
 
 may enter into an ordinary, partnership in respect of, 70 
 
 after acquired, whether bound by engagements, 70 
 
 effect of cessation of coverture, 71 
 
 whether liable for debts before marriage, 71 
 
 liability for ante-nuptial debts under Married Women's Property Act, 72 
 
 whether engagement must comply with ordinary forms of contract, 73 
 
 whether analogy of Statute of Limitations applies to claims against, 74 
 
 whether liable on quasi-contract, 74 
 
 not liable for general tort or breach of trust, 75-76 
 
 .SEPARATION DEEDS: 
 
 agreements for, between husband and wife alone, 62, 270 
 
 when parties not lawfully married, proviso for reconciliation void, 269 
 
 validity of, 270 
 
 effect of, on special points, 272 
 
 avoided by reconciliation, 272 
 
 agreement for future separation void, 273 
 
 provisions for custody of children in, 304, 305 
 
 :SET-OEE : 
 
 liability of assignee of contract to, 207 
 
 bill of exchange indorsed when over-due, not liable to in hands of indorsee, 
 
 214-215 
 one who deals with an agent known to be such can not set-off against princi- 
 
 pal's'claim a debt due him from the agent, 225 
 against principal, right to of one who has dealt with undisclosed agent, 228 
 debt barred by Statute of Limitation can not be, 571 
 
 .SETTLEMENT: 
 
 marriage settlement of infant, confirmation of, 40 
 
 in fraud of marital rights, 254-256 
 
 special rules as to reformation of, according to previous articles, 455 
 
712 INDEX. 
 
 Settlement — Continued. 
 
 duty of full disclosure in negotiations for, 479-480 
 
 marriage settlement not rendered voidable by wife's non-disclosure of pre- 
 vious misconduct, 482 
 post-nuptial, how far supported by informal ante-nuptial agreement, 582-583 
 
 SHAREHOLDER: 
 infant may be, 38 
 
 and is liable for calls if shares not disclaimed, 46 
 married woman may be, in respect of separate estate, 69 
 right of to restrain company from acts not warranted by its constitution, 98,. 
 
 107 " _ 
 
 ratification by assent of, 95, 111 
 can not treat contract as void by reason of variance between prospectus ands- 
 
 meniorandum of association, 417-418 
 right of under Companies Act, 1867, s. 38, 481 
 only original shareholders are entitled to rely on prospectus, 505 
 can not repudiate shares after acts of ownership, 507 
 cancellation of shares on other grounds equivalent to repudiation, 510 
 can not repudiate after change in constitution of company, 511 
 can not repudiate after commencement of winding up, 514 
 must be diligent in repudiation, 517 
 
 SHARES— 
 
 application for, notice of allotment must be given, 20 
 
 repudiation of by infant, 39, 46 
 
 sale of after winding up not enforceable, 425, 430 
 
 SHIPS: 
 
 transfer of, 147 
 
 SLAVERY: 
 
 rule of that a slave was incapable of entering into any contract, 34 
 effect of abolition of, on prior contracts, 275 
 
 contract for sale of slaves in slave country not void in country where slavery- 
 is unknown, 337 
 statutes against slave trade, 344 
 
 SLIP: 
 
 in marine insurance, effect of, 584 sqq. 
 
 SOLICITOR: 
 
 what agreements with client are bad for ehamperty, 296-298 
 
 purchase of subject-matter of suit by, 298 
 
 costs of uncertificated, solicitor not recoverable, but allowable on taxation, 
 
 344, 589 
 how soon costs may be sued for, 590 
 special agreements with client, 344, 596 
 
 SOLICITOR AND CLIENT: 
 
 special agreements between, allowed by statute, 344, 596 
 
INDEX. 713" 
 
 Solicitor and Client— Continued. 
 
 how affected by the rules of law against champerty, 296-8, 339, 344 
 presumption of influence in contracts between, 526, 531, 563 
 
 SPECIFIC PERFORMANCE: 
 
 may be refused without deciding there is no contract, 26 
 
 not granted at suit of infant, 41 
 
 nor since Infants' Eelief Act of any contract made during infancy, 44 
 
 against married woman's separate estate, 68 
 
 intoxication not of itself ground for refusing, 79 
 
 of contract by railway company to purchase land, 105 
 
 of voluntary covenant, though under seal, not granted, 168 
 
 refused against purchaser who bid for wrong lot, 415 
 
 refused in certain cases where contract ambiguous, 417 
 
 subsequent oral waiver or rescission defense against, 439 
 
 refused where instrument sued on does not express the real agreement, - 
 
 448-450 
 whether plaintiff may in the same suit have a contract reformed for mistake 
 
 and specifically enforced as thus reformed, 448 
 with compensation on sale of land, 472 
 
 at suit of either party where misdescription not substantial, 472 
 at purchaser's option where substantial and capable of estimation, 472-473 
 where misdescription substantial and not capable of estimation, option only 
 
 to rescind or to affirm unconditionally, 474 
 where wife of vendor. refuses to release dower, 474 
 when vendor oan make good his representation, 475 
 not enforceable where collateral representation, though not of existing fact, - 
 
 has not been fulfilled, 497-498 
 whether it can be refused for under-value, 541-545 
 
 STAMPS : 
 
 effect of foreign law as to, 285-286 
 
 unstamped document, when admissible as evidence, 587 
 
 variation of contract by subsequent unstamped agreement, 588 
 
 STATUTE OP FRAUDS: See Frauds, Statute of. 
 
 STATUTE OF LIMITATION : See Limitation, Statute of. 
 
 STATUTES : 
 construction of statutory prohibitions, 258 sqq. 
 what is meant by policy of, 259 
 particular occupations, etc., regulated by, appendix C to Ch. VI, 342 
 
 STIPULATION: 
 in Roman law, 121 
 
 STOPPAGE IN TRANSITU : 
 does not resuindithe contract, 390 
 right of possession revests in vendor from date of notice to carrier, 390- 
 
"714 INDEX. 
 
 -SURETY: 
 
 when discharged by subsequent dealings between debtor and creditor, 250-251 
 entitled to benefit of securities, 251 
 
 discharged by misrepresentation or concealment on part of creditor, 469 
 entitled to know real nature of transaction between creditor and principal 
 
 debtor, 469 
 . but creditor not bound to volunteer information, 471 
 
 SURPRISE: 
 whether a ground of relief against contracts, 558-561. 
 
 TALLIES: 
 
 former use of, 129 
 
 TIME: 
 
 when of essence of contract in equity, 443-444 
 
 may be made so by express agreement or notice, 4 11-11 5 
 
 TIPPLING ACT: 
 small debts for spirits not recoverable by, 597 
 
 TKADE MARK: 
 of an article intended to deceive the public will not be protected by the law, 
 
 274 
 
 TEADE UNIONS: 
 
 agreement for strike not enforceable, 309 
 
 certain agreements of, lawful, but not enforceable, 598 
 
 TRADING WITH ENEMIES : 
 without license from crown, illegal, 281 
 contracts dissolved or suspended by war, 282 
 neutral trade with belligerents not unlawful, 284 
 See War. 
 
 TRESPASS : 
 
 agreement to commit, void, 246 
 
 willful but not gratuitous, by servant, may make the master liable, 386 
 
 TBOVEE : 
 
 ignorance of real ownership of property no defense to action of, 885, 386 
 TEUST: 
 
 how far in the nature of contract, 193-194 
 
 agreement to commit breach of, void, 246 
 
 TRUSTEE: 
 
 must not sell to or buy from himself, 252 
 
 may purchase from ceatuis que trust, 252 
 
 must account to cestuis que trust notwithstanding collateral illegality, 329 
 
 must be impartial as between cestuis que trust-, 537, 538 
 
 UNDERVALUE: 
 does not of itself avoid contract, but may be evidence of fraud, etc., 639-541 
 whether specific performance can be refused for, 541-545 
 treatment of, in foreign law, 545 sqq. 
 
INDEX. 715 
 
 UNDUE INFLUENCE: 
 what is, 523 sqq. 
 
 presumed from certain relations, 524-526 
 burden of pvoof in such cases, 526 
 never presumed as to wills, 526 
 
 supposed general rule as to voluntary donations, 527-528 
 burden of proof where no special relation, 528 
 influence once shown presumed to continue, 530 
 ■duty of persons in fiduciary relation's, 531 sqq. 
 purchases by solicitor from client, 531-533 
 .no presumption against "family arrangements," 533 
 particular relations where influence presumed, 534 sqq. 
 relations aualogous to parent and child, 534-535 
 relations analogous to solicitor and client, 535-536 
 spiritual influence, 536-537 
 apart from fiduciary relation, 537-538 
 .securities obtained by pressure, 538 
 undervalue how far material, 539 sqq. 
 protection of expectant heirs, etc., 547 
 rules of equity as to " catching bargains," 553 
 
 sales of reversionary interests by persons in dependent position, 557 
 "surprise," etc., as evidence of, bh^~b&\ 
 rescission of contract for, 561-563 
 
 whether material if exerted by stranger to the contract, 562 
 effect of confirmation or delay, 562-563 
 
 UNLAWFUL AGEEEMENTS: 
 
 general classification of, 243 
 
 to commit offense, etc., 244 
 
 contract unlawful when ulterior object is an offense, e.g., no right of action 
 can arise for work done in printing a criminal libel, 246 
 
 to commit civil wrong, 246 
 
 in fraud of creditors, 247-249 
 
 with agent in fraud of his principal, 253, 254 
 
 ■settlements in fraud of marital right, 254-256 
 
 marriages which are prohibited as against public policy, 267 
 
 agreements illegal by statute; construction of prohibitory statutes, 258 sqq. 
 
 executed transfer of property made on unlawful consideration or for unlaw- 
 ful purpose is valid, 269, 320, 328, 329 
 
 general rules as to treatment of, 317 sqq. 
 
 where promises are independent, the lawful ones enforceable, 317-318 
 
 alternative promise, one branch of which is unlawful, 318 
 
 unlawful consideration avoids the whole agreement, 318 
 
 where immediate object unlawful, agreement void, 318 
 
 effect of intended unlawful use of subject-matter of contract, 319-320 
 
 innocent party may rescind on discovering unlawful intention of the other 
 320 
 . .agreements void as part of unlawful scheme, though subsequent to the un- 
 lawful act, 321-323 
 
716 INDEX. 
 
 Unlawful Agreements — Continued. 
 
 securities subsequently given for payment of money under unlawful agree- 
 ments, void, 323-324 
 
 illegality may always be shown by extrinsic evidence, 324 
 
 where immediate object not unlawful, unlawful intention must be shown to- 
 have existed at date of agreement, 325 
 
 the parties' knowledge or ignorance of the law may be material for this pur- 
 pose, 326 
 
 unlawful intention not to be presumed, 327 
 
 rule that party in pari delicto can not recover, 327-329 
 
 collateral illegality does not affect duty of agents to account to principals,. 
 329-330 
 
 right to an account of partnership profits realized from unlawful business r 
 329, 244 
 
 money paid under, recoverable where agreement not executed, 330 
 
 unless manifestly repugnant to justice or morality, 330 
 
 where payment not voluntary, or parties otherwise not in pari delicto, 331 — 
 333 
 
 conflict of laws as to lawfulness ; generally lex loci solutionis governs, 333- 
 sqq. 
 
 contract for sale of slaves made and to be performed in a slave state is rec- 
 ognized in states where slavery is unknown, 337 
 
 conflict of laws in time; contract dissolved by performance becoming unlaw- 
 ful, 340 
 
 whether, in absence of original unlawful intention, an agreement may be- 
 come valid by performance becoming lawful, 341 
 
 statutes forbidding or regulating particular contracts collected, 342 sqq. 
 See also Conflict op Laws; Immobal Agreements; Public Policy - r 
 Wagers. 
 
 USURY LAWS: 
 
 repeal of has not altered doctrine of " catching bargains," 552-553 
 its effect on subsisting loans, 599 
 
 VENDOR AND PURCHASER. See Sale of Land; Specific Perform- 
 ance. 
 
 VIS, MAJOR: 
 meaning of, 361 
 
 VOID AND VOIDABLE : 
 
 distinction between these terms, 7 
 confusion between terms, 36 
 
 contracts of infants at common law voidable, not void, 35-41 
 power of attorney of infant void, 41 
 contracts of lunatics whether void or voidable. 77-82 
 power of attorney of lunatic void, 78 
 agreements may be without being forbidden, 264 
 
 contract depending' on- personal skill, etc., made void, not voidable, by sub- 
 sequent disability, 368 
 
INDEX. 717 
 
 "Void and Voidable — Continued. 
 
 deed void in part by statute, not necessarily void altogether, 318 
 
 deed of lunatic whether void or voidable, 406 
 
 in some cases agreement may be void as against third persons, but voidable 
 
 as between the parties, 430-431 
 contract induced by fraud voidable, not void, 506 
 contract induced by duress voidable, not void, 520 
 
 VOLUNTARY COVENANT: 
 
 specific performance of not granted, 168 
 
 VOLUNTARY DEED: 
 
 not rectified against grantor, 456 
 
 VOLUNTARY GIFT OR SETTLEMENT: 
 incomplete, not aided in equity, 169 
 question as to burden of proof on donee, 527 
 readily set aside, 529 
 power of revocation not necessary to validity of, 530 v 
 
 WAGERS: 
 
 valid at common law, but courts astute not to enforce them, 265, 276 
 one paying a wager at the request of the loser may recover from him, 265 
 agreements in form executory contracts of sale, when treated as, 277 
 party repudiating before the stakes are paid over may recover his deposife 
 from the stakeholder, 330 
 
 WAR: 
 
 trading with enemies illegal, 281 
 effect of, on subsisting contracts, 282 
 
 validity of bills of exchange drawn between hostile countries, 283 
 effect of on right of action of enemy resident in enemy's territory, 283 
 effect of, in rendering impossible suit on insurance policy within time pro- 
 vided for in it, 355 
 See Unlawful Agreements ; Trading with Enemies. 
 
 "WARRANTY: 
 
 implied, of agent's authority, 232 sqq. 
 
 whether purchaser may rescind for breach of on sale of specific chattel, 414, 
 
 421 
 implied, of title on sale of chattels, 415 
 repretentations amounting to warranty or condition ; effects distinguished, 
 
 464-466 
 
 WILL: 
 rnntract to make disposition by, lawful, 308 
 execution of wrong document as, wholly inoperative, 403 
 can not be rectified, but general intention may take effect against particular 
 
 words, 459 
 -dispositions on false cause, 460 
 
718 INDEX. 
 
 "Will — Continued . 
 
 burden of proof to show the righteousness of the thing on one who takes a 
 benefit under a will which he was instrumental in preparing or obtain- 
 ing, 524 
 
 undue influence never presumed as to, 526 
 
 WINDING UP: 
 
 secret agreement for conduct of, void, 292 
 
 right to proceed with creditor's petition for, not salable, 299 
 
 shares can pot be repudiated after, 511, 514-515 
 
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