'-'^.. ' .s 1 -J ^ 'Boi Cornell University Law Library. THE QIPT OP LILLIAN HUFFCUT BINGHAMTON, N. Y. November 27, 1915 91S1 Cornell University Library KF 801.Z9W22 The student's quiz book, containing ques 3 1924 018 824 676 ^z^K'ir. Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018824676 THE STUDENT'S Quiz Book, CONTAINING QUESTIONS,, ANSWERS AND A HISTORY OF THE LEADING CASES IN ANSON ON CONTRACTS AND BLACKSTONE. AS TAUGHT BY THE Professors in the Michigan Law School. . UNIVERSITY OF MICHIGAN CHICAGO: CALLAGHAN & COMPANY, 1892. /3si(cu>. COPYRIGHTED. CALLAGHAN & COMPANY, 1892. PREFACE. Thb Students' Quiz Book, as the name implies, is a book ■designed for the use of every student of law. It has been prepared to subserve a manifold purpose, viz: To place in the hands of the student the work actually required in Anson on Contracts, and Blackstone, at the Michigan Law School; to arrange in a systematic order the questions, with their answers, which would be required for admission to the bar, or to any law school in the United States; and to give the student in one volume the actual work found in Anson on Contracts, and Blackstone's Commentaries. The work herein presented is that done by the students in the Junior Class of the Law Department of the University of Michigan, under the direct supervision of Professor Jerome C. Knowlton, in his class-room. The questions are from stenographic reports of his recitations, taken by his sanction, and carefully examined by him before going to press. In Anson on Contracts, the most valuable substance of the work is placed before the student. The writer has, at an expenditure of much time and research, carefully collected, annotated, and epitqmized the leading cases cited ; shorn them of all verbiage, and given in a clear, narrative form, only the IV PREFACE. material points in each case, together with the principle ' decided, the case in brief, and the English and American rules derived from such decisions. In Blackstone, only such portions as are of practical benefit are taken, and all obsolete law, or that which would be of no particular or practical importance to the i American student, ia eliminated. By permission of the Hon. Thomas M. Cooley and Prof. Jerome C. Knowlton, copious extracts from the American I^otes, in each work, are presented. No other book in the market covers the same ground in the same manner. This is the only authorized work of the kind ever published for the use of the students in the Michigan Law School in particular. To the students of the Junior Class this work will prove invaluable, because, in a comparatively brief time they can master that which they would otherwise be months in obtaining. To the students of other law schools, where Anson on Con- tracts, and Blackstone's Commentaries, are used, the work will be found fully as valuable; and to those persons who desire an elementary knowledge of the principles of law, contained 'in a small compass, in clear and simple language, this work will be found to be perfectly adapted to their use and con- venience. Believing that much benefit will be derived from its use, the author submits it to the public. C. C. WALSH. Ann Arbor, Mich., Oct. 1, 1892. LEADING CASES REPORTED AND CASES CITED. Cases in Boldface Type are the Leading Cases reported by the Author. Allshonse VB Bamse; 164 Bacon vs Lee 186 Bailey vs De Vrespigny 149, 239 Baldy ts Stratton \ 83, 190 Bank ts Wallace 200 Beal vs Chase ^....85, 193, 193 Brandt Y8 Lawrence 233 Bristo vs Lane 204 Brown ts Byrne 213 Bronrn vs JDunoan 74, 184 Brown ts Hall 202 Bnrtis vs Thompson 228 Byrne vs Van Tienhoven 11, 155 Caesar TS Krautz --184 Caldwell TS Meek 218 Caldwell ts Lawrence.—— ^ 215 Campbell ts New England Insur- ance Company 180 Cannan vs Bryce 87,194, lilB, 198 Carson TS Clark - 170 Cbamberlaln vs Williamson 109, 209 Chamber of Commerce ts Ballltt 228 Clifford TS Watts 149 Cohen tb Platts 232 Cole TS Hnghes 209 Collins TS De laporte 230 Cook vsOxley. .-..11,156 Cooke TS Millard 166 CornoU ts Cornell 243 Cort vs Ambergate Railrnad Company '..134,229 Crawford TS MiUspanffh 218 CuflfTsPenn 225 Culler TS Welsh 196, 198 Cnmmings ts Arnold 225 Daly TB Smith 237 Derby TS Johnson 230 DermottTS Jones 227 Dexter vs Morton 242 Dickinson vs Dodds 11, 158 Dingley ts Oler — 228 Donnellan vs Read 23, 161 Donner ts Cheesborongh 164 Dorsey tb St. Louis Bailroad Com- pany 309 Douglas TS Malting ...175 Eaton TB Eaton... 171 Eldred tb Malloy 188 Elemming ts Beck 335 Forsyth ts State 192 Foster vs Dawber 133, 2lB Foster vs lllackinnon.-. 49, 173 Praer ts Philbrick 183 Oates TS Hughes 220 Gilbert vs Sykes 76, 186 Green TS Gilbert 246 Hadley vs Baxendale 142. 234 Harriman case i ...2.38 Bart vs Alexander 12.5, 218 Hawks TS Nagle ^ 192 Head vs Tattersall 126, 230 Hendricks ts Lindsey t 304 Heywood TS TiUson .--203 HiUTsBaUs 182 HiU TS Bughrae 149 Hoare ts Bennie 233 Hochster vs Delatonr 133,227 Holmes ts Kicket _ 190 Hopmer ts Wilson ^330 HouckTS Muller 330 V VI LEADING CASES REPORTED. Household Fire InHurance Company vs Crrant 10, 153 HoTey TB Page 211 Howell V8 Stewart 198 Hnlle vs Heishtman 133,325 Hunt Ts Wyman 821 Illinois Central Eailroad Company TS Cobb 235 Jacquitb vs Hudson 215 Jeffrey vs Bigelow — 183 JeftSTS York - 178 Johnson TS Sellers - 168 Johnson ts Smith-' 178 Jones TS Stanley -.203 •Tones vs United States 238 Jndsonys Corcoran - 207 Keales vs liord Cadogan 63,183 KemUe vs Farren 131, 313 Kennedy TS Owen 209 Keppell V Bailey 108, 307 IjampIelKli vs BraithAvalt..36, 168 Larmon tb Jorden 156 liCe vs etriflin 25, 165 Eieronx vs BrowTi 33, 163 Lewis TS Alexander 198 LiTingstone tb Eadcliff 330 LoTCTB Harvey 188 Lucas TB Coulter 184 JLnmley vs Oye 94,201, 203 liiuiiley vs TVagner 144, 236, 237 Mallan vs May •- 198 Mansfield vs Inhabitants 213 McCullough TB Eagle Insurance Company 155 McKinneUTS Eobinson 196. 198 Millard TS Baldwin 204 Molton vs Camroux 45,170 Musselman vs Stoner 225 NiTer vs Kossman .- 215 IVoblevs Ward 127, 333 Norrinston vs Wright 135, 333 NoyesvsLoring 178 Nngent vs Smith 126,333 Paradinevs Jane 149,237 Parsons vs Loncks .....--166 Pearce vs Brooks 87,196 Feelmau vs Peelman 168 People vs Insurance Company 340 PiffervB Smith 176 Polhill vs wralter 56, 17& Pool vs Homer ^™ Pi'ice vs Faston 95, 303 Pymvs Campbell "* Baisin vs Clark *'* Bann vs Hughes 26, 173 Bay TB Thompson - 221 Eeed vs Washington Insurance Company l^O Renter vs Bala 2^ Bobinson vs Davidson 149,342 Rose vs Mitchell 19& Sage TS Wilcox 1^1 Sanquirico TS Beneditti-- 237 Scott vs Avery 83,188 School District No. 1 vs Dauchy 242 SemmesTB Insurance Company 240 Shadwell vs Shadwell 35, 166 Simpson vs Crippin 133, 230, 233 Skinner vs Henderson 300 Smith vs Sherman- 211 Smith vs Wilson 117. 211 SneU vs Cottingham 235 Soutier vs Hellerman 213 StiUins vs Palmer 311 Stocks vs Dohson 99,305 Strong TB Grand Trunk Railroad Company 213 Taylor vs Bo'wers 90, 199 Taylor vs Caldwell 149, 240 Taylor vs Pratt 161 Thayer TS Daniels 207 Thomas ts Miles- ' ...^..194 Tracy TS Talmage 19& Vanderbeck tb Vanderbeok— 21 8 Vassar TB Camp.. 155 Vose vs Eagle Life Insurance Com- pany '. 180 Wain vs Warlters 11, 160 Ward vs Hobhs 62,180 Wheelton vs Hardisty 60,178 Whipple vs Parker 163 White TB Buss 196,198 Wilder tb Weakley 171 Williamson vs Bailey...- 198 Willing Sherman „ 237 Winters vs Charry - 163 Wright vs Ryder 194 Woodward tb Washburn 302 INDEX. A Aeceptance : page. Forme it may asBame 9 How commnnicated 10 Defined 103 Accord and Satisfaction: Defined 34, 145, 397 Beqnirem entB of the conBidera- tion 145 Old rhyme of 145 In what it may consiBt 145 Act of Ood: Defined 126 Exclndes what idea....:126, 222,233 Action : Defined 400 Ex-contractu..-- 12 Administrator and Administra- tion : Title by 388 Defined 891 De bonis non 391 OJficers and daties of distin- eoishedfrom executors 392 AdvoTTSon : Defined .'. 276 Classified 276,277 Appendant, defined 276 In groBB, defined. 1 277 Presentative, defined 277 Collative, defined 277 Donative, defined 277 Agreement : Eeqnisites of, for existence 1 Outcome of what - 1 Essentials of-, 2 Made in frolic and banter 2 Agreement— Continued. page. Defined 2 Term wider than contract z, 3 Stages necessary to making 3, 4 Original, ,.; 8 In consideration of marriage 22 Not to be performed within a year 23 Substituted, defined .33 Rendered illegal by statute --.73 Tending to pervert justice 81 To refer matters in disputes to arbitration 82 Innocent, when vitiated 83 Effecting freedom or security of marriage-- .84 In restraint of marriage 84 Providing for separation of husband and wife 84 Evidence as to fact of 113 Unreal when 113, 11' Extrinsic evidence admissible when lia Aids: Defined 285 Kinds of 285 Alien: Powers of 37 How treated in United States 38 Enemy 38 Enemy, contract with 79 Defined 271 DisabiKties and Privileges of 273, 274 How naturalized 274 Alienation : Divisions of 339 ClasBes of 340 In mortmain .--340 By matter of record 352 VII Vlll INDEX. AII«ciance; faqe. Defined 873 Classified 278 Distinguished from fealty 278 Local, defined .,272 Oath of _ 273 Alteration : What amounts to material .150 Asimals : As personal chattels... 366 How dietingnished 366 Absolute property in ...367 Qualified property in.-367, 68, 69, 70 Brood of tame: 367 How classified :...367 Ammities : • Defined S78 Arbitration : Defined 397 Artiflciality of Constrnction : As limiting powers of corpo- rate bodies to contract 45 Assets : Defined 388 Assisnees : Duties of—.; 387 Assignment : i Form of required in America 101 Notice of required in America-- -lOi Operation of — 101 Of contractual rights 106 De*' of 349 Distinguished from lease 349 Assumpsit : Origin of IS Attestation : Of contract under seal 118 When necessary 113 Attorney at liovr : Defined 399 Bpeciesof 399 Antbors Cited in Wort : paoe. Parsons on Contracts 158, 207 Pomeroy on Contracts 158, 160 Story on Contracts 158 Cooley on Torts 188 Bishop on Contracts 842 Blackstone-...' 2^ Anson - 1 Authority : Royal, defined «70 Divisions of 270 A-ward : Defined ...397 B Bailment : Defined 381 Considered 382 Bailee : Defined 382 Eights of 382 Bailor: Defined 382 Eights of L 382 Bankrupt : Defined 386 Debts of 387 "Once a Bankrupt," etc 387 Bankruptcy : Act of 1883 110 When effect a statutory lease 151 Points considered in law of 38t Defined 386 Title by 387 Lawsof 887 Bargain and Sale : Deed of 350 Bastard : Defined 336 Law of inheritance of 336 Heirs of 335 Difference between civil and common law as to 33S Bills of Exchange : Defined 103,384,385 How drawn 103 Kinds of 103, 385 INDEX. IX Bills of Exchange— Continued. Loss of _ 151 DifEerenoe in law between kinds of , 385 When protested ^ 885 Indorsersof 386 »iIIof liadlng: Sometimes Billed what 105 Deiined 105 Number of copies made 106 Sights conferred by assignment of .105 Negotiability of 105 Distingaished from commercial paper 106 Bond : Defined 16,351 Of an agg:regate and sole corpora- tion 374 iBorongli English: Defined 590,891,893 Bottomry : Defined 383 .Buyer : How protected 52, 53 c Capacity of Parties : Consideration of 37 ' Causa Mortis : Defined 393 •Champerty : Defined 8S Avoids what agreements S3 Forms of 83 Chattels : Distingaished by common law.. 365 Real, defined 365 Examples of 365 Essential qaalitiesof 365 Personal, defined , 365 Examples of 365 Property in 366 Animals as sach 366 Chose in Action : paos. Defined...'. 97,370 How far assignable at common law 97 When assignable in equity 99 Conditions which offset the rights of assignee > 99 Assignable in United States 100 Things assignable as ... - 100, 101 Forms of '. ,- -101 Assignability of 102 Codicil Defined 390 Commons: Of England 264 Speaker of House of... 266 Defined 277 Kinds of 277, 278 Common Assurances : Kinds of 341 Common Liowz When adopted in America- 245 Common Becovery: Defined 368 Distinguished from fine-- 358 Toucher in 368, 359 Effect of 359 Exceptions to the mode of 359 Things necessary to all -^..359 Invented by whom 360 Object of 360 Composition Yvith Creditoi;'S: Defined 34 Condition : Used in what sense 58 Floating 137 Concurrent, defined 138 Precedent, defined- 140, 313 Precedent, distinguished from warranty 140 How turned into warranty How it may lose its force 140 Considered 313 Estates granted upon 313 Subsequent, defined 313 Express, when void 313, 814 Indeed 313 Inlaw --..314 Effect when void by statute 314 INDEX. Consideration : page. Origin of '. 11 How expressed - 18 Defined 26, 35 Bnles which apply to -- 26 Exceptions to rules 26 Needuotbe adequate 26 Inadequacy of 27 Consists of what — 28 TJnieal 29 Confusion between motive and-— .30 Good, defined --..30 Most move from plaintiff 30 Past, defined 31, 86 When unreal— _ 32 Involving legal impossibility 32 Consists of what 35 Executed .35 Valuable, defined 380 Yaloable, species of.- 380 Contract : Objects of inquiry which arise concerning - 1, 379 Defined 5,93,379 Elements necessary to be Valid 8 Formation of 8 Ways it originates .- -9 Kinds of in Early Common Law ..- 11, 380 Classified 13, 379 Of sale - 25 Made upon executory con sideration when.----' 27 Made upon executed considera- tion when - 28 Contingent 28 Illustrations of 28 Avoided on ground of mistake when 32 Of infants 39 Of infants, how classified 39 Questions which arise in deter- mining legality of 50 Rights of one who rescinds — 66, 67 Rendered void by statute when — 74 Of wages - 78 With alien enemy 79 For sale of public offices 80 Lobbying, defined -.81 Marriage brocage 84 Effect of being illegal 88 Contract— Continued. faob. Effect of being void 88 Cases in which one may be re- leased from 89 Assignment of ---_- --9''' Free from equities explained 101 Interpretation of HO* Disputes as to terms of HI By word of moutli— j HI Evidence of Ill Proof necessary to a simple 112* Consisting of several documentB-113 Discharge of 122, 127 Discharge of, by aerreement 123- Discharge of, by per'ormance 128- Discharge of, by right of action.. 144 Discharge of, by consent of parties 145- When broken 128 Special, defined 181 How broken 133 Installment - 135 Kemedies for breach of 141 For specific sale of goods j-144 Convey what interest 379' Personal, species *f 380- Of record _ 13 Varieties of —.13- How discharged 146 How affected by lapse of time. -146 Under seal. How considered- 14 Characteristics of 15 Gratuitous - 16 Evidence of -112 Proof of 112 How attested - 112 How discharged 137" Limited by Statute of Limita- tions 14? Consanguinity or Kindred : Defined 3C8 Kinds of _ 333 Lineal, defined _s-is Collateral, defined 328 How regarded by Civil Law 3S2 How regarded by Common Law. -332 How regarded by Statute Law.-,.332 How regarded in the United States ■_.. ssa INDEX. XI Constmction: ptoe. Kales relating to 118, 181 Conclnsions of 119 ' Constitution: Of England 850 Canveyances : Origin of 274 Distingnished from lease 318 Varions kinds of 347 Divisions of at Common Law 347 Defined 347 Primary at Common Law 347 DeriTative at Common Law 347 By act of parliament. - 353 Of estates by devise, rules of 363 Copy Hold: Principles of such tennre 295 Kinds of--- .295 Fruits of 295 ■ Copy Right: Defined -- 373 Law of 374 Corodles : Defined 278 Corporations : Defined- -- 44 Limitation of capacity to contract.44 How it contracts 44 Power of to contract in America. .45 Conrts : Defined 398 Sources of 3t8 How created..- 3a8 Divisions of 399 Of record, defined 399 Of record, how distingnished 399 Constituent parts of 399 Kinds of, and definations of each 400, 401, 402, 403, 404 Covenant: Affecting lease holds 106 Which "touch and concern the thing demised"..- 107 Examples of 107 Entered into at common law .! ... 108 Beal, defined 344, 345 To stand sized to use of 350 In America 345 Creator : paoe. Defined..... i 246 Cartilage : Defined ..278 Custom : Defined..^ 256 Bules relating to ..2S6 Requisites of ...255 ' Damages: Nominal, defined ^ 14^ Bale at common law as to 143 To which plaiutifE is entitled 142 Object of allowing. 14;* Death : Kinds of 26» Civil, defined 262 Of King, defined 269 Debt: Defined 384 Howdivided 384 Of record-- 384 By special contract 384 By simple contract 384 Deceit: American rules of.. 64 Action for -- 65 Which does not deceive 65 Deed: Delivery of 15 In Escrow .-- 15, 345 Defined 1 341 Poll 342 Indenture - 342 Bequisites and formal pai ts of 312, 43, 44, 45 Signatnreto 316 Howdivided 346 Destinction of --346 Of feoffment .- 347 Of gift - 348 Of -grant 348 Of exchange 348 Of partition ^ 348 Of release 349 Of confirmation 349 Of surrender 349 Of assignment 349 Of defenzance 350 Xll INDEX. Deed— Continued. pags. Of bargain and sale 351 Of lease and release .....350, 51 Ofre^oction 351 To declare nse 351 To charge or encumber an estate-SSI Defeasance : Defined 350 Of bond. 351 Denizen : Defined , 273 Privilages of .273, 274 Descent and Pnrcliase: Defined 327 Cannons of 329, 3.33 Title by 334 Distingaished from porchase 334 Devise : Executory, defined —..320,360 Distinguished from remainders.. 321 Land left by 334 Defined 360 When first used 360 Common law, rule of 360 Things first devised -.361 Exceptions to corporations 362 How revoked 362 Conveyances of estates by 362 Dignities : Defined 278 . Discliaree : Defined 131 Of Contract 122 By right of action 144 By agreement 123 By operation of law ---150 By waiver.. ..-.123 By performance 128 By Breach 131, 133 Provisions of 125 Distress : Defined .396 Most usual injury by 396 How disposed of 396 Oocunent : Proof of - 112 Dome Book: pass. Contents of 253 Defined - 286 Domesday Book: Defined 280 Doirer : Tenant in 306 Defined 306 Considered 306 In Gavel-kind 306 Origin of 306 Who may,be endowed ....306 Four species of 307 By whom assigned to widow 308 How barred 308 Duress : Defined 43,262 Contracts made by 68 Consists of what-^ 68 Kinds of ....68, 262 Who may be subject of 68 Of goods 68 Duty: How used in contract 94 E Emblements : Considered ...303 Tenant receives when 303 Entry : Defined 396 Eguity : Rules of 120,258 Courts of 121 Of redemption 315 llsciieats : Defined 886, 335 In socage __ 294 Founded upon what principles--S35 Of land 335 Escroir : Defined __ 15. Rules of delivery in.. 15 Deed of _ 345 Escnase : Defined orr INDEX. XIU Estate : ' faqb. 0£ the realm 864 Defined ^ 206 Considered 296,297 Primary divisions of 297 Freehold 297 Of inheritance 297 Distinguished from tenoiea 309 Life 301 Discussed 301, 303 TaU, discussed 299, 300,360 Less than freehold 309, 315 As to time of enjoyment 316 In joint tenancy _. 321, 323 In coparcenery 323, 325 In common.^ —.325 By occupancy 336, 337, 372 Rules for conveying by devise — 363 Estoppel : Defined 15 Evidence : Bules relating to 110 Of oral contracts Ill Difference in, between formal and simple contracts ^H* Of contracts under seal ■ 112 To show validity of document.. 113 To alter purport of deed 114 As to terms of contract 114 General rule of 114, 115 Parol — 115 To show use of phr sei 116 Of usage 116 Executor : Liabilities of 19, 20 Defined ---- 391 Who may be one 391 Deson tort 391 Powers and duties of 392,393 Exeonted Contract: Defined 9,379 How discharged 34 Executory Contract: Defined - 9,879 Howdischarged 34,35 Exchange : Deed of -— - ^^ Ex post facto: Warranty of ^ Defined — -- '^^ American laws of« 248 F Fealty : PAOE. Defined ..272 Distinguished from allegiance. .272 Oath of 380> Fee: Tail 29'7 Defined.^ 298 How used by later lawyers 298 Signifies what....^ 298^ Corporeal and incorporeal,dis- tingnished 298 In whom vested 298 In abeyance 298 Limited 299 Qualified or base 299 Conditional or fee tail 299' Feoffment : Meaning of T 28s. Deed of 347 Fend: How granted 281 Technical meaning of.- 281 Steps in donation of 281 Corporal investure of 2S1 Prohibitions of 282 Defined 298 How used by later lawyers 298 Feudal Tenures: Origin of - 279 Allotments of, called what 279 Requirements of, possessor of.. 280 When first introduced into England- 280' Fundamental maxims of 280 Manlier of granting 281 Fines: For alienation, defined 286 In socage 294 Defined 355, 358 Original foundation of 355 Why so called - 355 Steps in levying 355, 3f6- Kinds of, levied -.357 Parties, privies and stranEersto.368 Distinguished from recovery 358' Forbearance: Consideration of 28' Appears how 29 XIV INDEX. Form _ FAQE. llefined 11 And conBlderation 11 Forfeiture Defined -..339 Of lands, tenements and here- ditaments - 339 Offenses .which produce ___339 Franchises Defined 278 Fraud Defined -^ 48 What constitutes- __ 56 Distinguished from misrepre- sentation 57 Essentials of 62 Distin^Tuishedfrom non-dis- closure --- - 62 When one becomes liable for.. 63, 64 Remedies for - 66 Effect of upon contract 66 Fmctns Indnstriales Discussed i.23 Frnctns STaturales Considered 23 Gift Deed of 348 Distin guished from grant 377 Turned into a grant when 378 Accompanied by what 378 Government Origin of - 249 Forms of 249 Virtues of 249,250 Perfections of 250 Grants Offends .-- 281 How perfected - 281 Final stepof 281 Time of first donation 281, 288 Words necessary to make 298 Deed of 348 King's 354 In what contained 354 Manner of passing by King'6.354,355 Grants— Continued. page. Distinguished from gift 377 Things included in 377 Of chattels personal.— 378 How looked upon by the law and statute 378 H Habeas Corpus Act Defined 263 Habendum Defined 343 Heir At-law, defined 327, 334 Apparent - 329 Presumptive 329 Distinguished '. 329 Of Bastards 33B Herlot Defined 293 Hereditam ent Defined...'. 276 Classes of 275 Corporeal 375 1 Incorporeal. 276 Incorporeal, kinds of —276 Homage ' Defined 280 Husband and Wife Eights _of 3;4, 375, 376 I Illegality I Effects upon con tract.. 85, 86,87, 88 Distinguished from Toid -88 Effects upon parly making 89 Ignorance of Lslw Considered 51 Immorality Laws of 83 Infants Euleof law in regard to 39 When of age 39 Contracts of 39 INDEX. XV Infimts— Continued. page. Contracts, how classified 89 Contracts, how avoided 40 For what held liable 40 Shareholders, how treated 40 Shareholders, by equity 40 Deedof 41 Relief Act' of 1874 42 Relief Act, Effect of 42 When liable and when not. ...43,44 Sued in tort 44 Inheritance Defined 328 Indorsement Defined 103 EflEectof 103 Special 104 Blank 104 Indebitatus Counts Defined 131 When applicable 131 Independent Promises Considered 134 Indian Contract Act Substance of 31 Indenture Deed of 34S Insolvency Defined 387 Intention Expression of 63 Interest In land 22 Installment Contracts 13B Insurance Policy, defined 384 Marine 60 Fire 60 Life 60 Xiife, contracts of, distinguished-. 60 Life, a wager 76 Life, policy of, defined 79 Instrument Loss of written 151 J Jointure f.ioe. Defined .....308 When takes effect ...-308 Judgment Of record - 13 Characteristic's of - - - 13 Upon what matter conclusive 14 Title by - 370,377 Judicature Act Rights conferred by 101 Rule laid down by 9B Substance of 121 K Kinship Degree of 328 Methods of computing- 328 Methods by Common Law 328 Methods by Civil Law 329 Degree of, between brothers 330 Collateral - 332 li liaches Defined 269 King not guilty of 269 liand An interest in 5..- 22 Relates to what - 23 Sale of 144 Defined - 279 Of England, how holden-- 290 Book and charter, defined 291 Folk, defined-., ,291 Ancient demesne, defined 296 Kinds of, in the United states.. 296 Left by executory devise 334 When given away 331 Escheats how 335 liaw Objects of--.-- 394 Defined and distinguished 246 Revealed 246, 247 Municipal, defined 247, 394 Ex post facto - — 248 Parts of 251 XVI INDKX. liBW^— Contiuaed. paok. Doctrioe of 255 Particular , 857 CiTil, defined 857 Canon, defined 257 Due process of, defined 263 Of succession among Jews 330 Nature of prim&ry .895 Of England--.-. Discussion of 253,256 IaSlw Reports Origin of 255 Contents of ...255 Onfeof the most valuable 265 Iiease Distinguished from conveyance-. 318 Distinguished from assignment. . 349 Defined 348 I Kinds of .,295 Sfarriage Agreements made in oonsid. eration of 22 Efifectof 105,109 Defined 286 In socage __ __, 294 Title by .".";375 Married IVomen Contracts of 45 Contractual rights of 46, 376 Contractual rights of Queen of England 45 Contractual rights by custom.... 46 Contractual rights by divorce 47 Contractual rights of husband o£ n-m INDEX. XVll Married WomenH' Property Aet PAGE. RightB conferred by 47 Effects of 47 Marine Insurance Insurer bound to do what 60 Defined 75 Mayitem Defined _ 262 Memorandum Terms of 18 How expressed--- 18 Must ba complate ....18 Mnst show wnat.. 19 Merger Under seal- - 16 Defined- 150, 321 Bules governing 150 Misfeasance Defined - 12 Misrepresentation Defined - 48 Difitinguished f rrtm fraud 55, 56 BoloB regulating 57 In sale of lands ...60 Mistake Defined 48 Kinds of - 49, 50 Distingui*»hed f rom failure 51 As to subject matter 51 Illustrations of 53, 54 Remedies against 54, 55 Effect of, in contract 55 Misuser Defined - 312 Mortgase or Pledse Defined - 315 Distinguished 314, 315 Title of, how forfeited 315 Mortmnin Defined 340 Alienation of 340 Monster Defined 335 Necessaries page. Defined 4:} Of infants 43 Negotiability Essential features of 102 By custom of merchant.-- lt)*i By statute - 102 Distinguished I rom assignabil- ity - ."; 104 STegotiable Instruments Bnles regulating _. 88 Illegality of, considered 88 STonieazaiice Defined -..12 IVon-user Defined 812 IVo-vatlon Defined '. P8 When established 98 Not resnjlated by the Statute of Frauds 9» Nuisance Defined...- 386 o I Obligation Defined 4 Characteristics of 4 Sources of . 5 Distinguished from duty ---5 Arising out of agreement 6, 7 Delict 6 Moral -...31 Contractual 93 Occupancy Defined 336 Estates acquired by 336, 387 Special - ^..337 Offer and Acceptance How made- - 8 Rule of .9,10 Oflice Conditions in creating of .312 How forfeited in England 312 How forfeited in America 312 XVIU INDEX. Operation of Contract page. Bales regalating 92 P Parliament Composed of what 230 Defined ._ ..263 Called what in Saxon period 263 When constituted - 363 How assembled 264, 266 Stages of making laws in 264, 265 How dissolved 263, 266 Adjournment of----' 265 Prorogation of 265 Dissolution of - .-.266 How bills are introduced into 366 Length of session 267 Passing of title by 352 Parties Identity of 115 Intention of 117 Position of , in contract 131 To a fine 358 Partition Deed of , defined - 348 Patent Rishts Defined - 373 Payment Aspects of 128 Defined 129 Negotiable documents as - 129 Consists in what 129 Performance Impossibility of 149 General rule for- Jl 149 Persons Natural, defined 261 Artificial, defined 261 Eights of, defined -261 How protected 370 Who cannot make wills 389 Who are injured bywaste 405 Pledge See mortgage 314 Prerogative of King Defined 268 Divisions of and defined 268 In foreign affairs 270, 271 In civil affairs 271 Primer Seizin page. Defined — 285 In Socage ^93 Promise Gratuitous - 1® Mutual -- 27 Conditional - - 28. 137 Validity of in illegal transactions 87 Independent 134 Absolute - 135 Subsidiary - -- 136 How enforced - 143 Promissory motes Defined 104, 385 Loss of 151 Property Acquiring and losing-- 327 Vests when --- 329 Personal 364, 368 In personal chattels 3t»5, 366 In animals -367, 368, 369, 370 Prescription Title by 337 Defined - 337 Distinguished from custom 337 Exists in what 337, 338 In whom laid - 338 Value of estate gained by 338 Disposed of causa mortis 393 Q (taantnm llernit When to sue on 132 K KatiAcation Kinds of 40 Becaption Defined 395 Recognizance Defined' 14.351 Keddendnm Defined - 343 Belease Defined 145 Deed of 349 INDEX. XIX Relief^ page. Defined 285 How granted 285 In Socage 898 Kematnders Defined 316,319 Illustrations of 317, 318. 319 Rules for creating 317, 318, 319 Contingent or Exeoutorj' 319 " How defeated 320 Creation of 330 Distinguished from devise -. 320 Remmitter Defined-- - - 398 Reple-vy Defined - 396 Representation Apaitfrom Contract 57 Defined 67 False 59,63 Boles of 59 Bona fide 59 Contrasted with Opinion 62 ^ Fraudulent 63 Residnnm Defined 394 Disposition of - 394 Repondentia Defined - 383 Restraint of Trade Agreements in respect of 84 Promise of --85 I Time and place of 85 Reversion Defined 316 Usual incidents to.. 321 iRiSbts Of individuals 260 Natural 260 Absolute 261 Relative 261 Of personal security 262 Of things , .....874 First recognized 274 8 ISale FAOB. Distinguished from work and labor 25 Of g:oods distinguished from sale of land 144 Defined - 381 Distinguished from exchange 381 Seizin Kinds of 303 Service and Tenure Kindsof 883,284 Defined '. 283 Results of 283 Characteristics of socage 289 Simple Contract Essentials of 5 Not required to be under seal 17 Socage Free, defined 283, 2S8 Meaning of 288 Opposed to what service.. 268 Kindsof - 288 Characteristics of 289 Fruits of 293 Reliefs in defined 293 Society and (li^oTernnient Considered - 249 Foundations of i...24» What results from 249 Divisions of 271 Sovereignty and (xovernment Besides where.- 249, 250 Defined. 250 State Defined - 250 Statute Of frauds 17, 18 , Fourth Section of 17, 24 Seventeenth Section of 19, 24 Oldest extant- 258 Kinds of 258 General, defined v 258 Special, defined 258 Declaratory, defined 258 Remedial, deflued 25S XX INDEX. Statute— Contiiraed. page. De Beligiosis, defined 340 -De Religiosia, resnlts of 340 Enabling and leBtiaining 348 Of nses : i 350 Private - 353 Of -wiUs^ 361 Of JLimitations Actions barred by ___147 Discassions of - 147, 148 Begins to rnn when : 147 American rules of 148 Stoppage in Transitu Defined 105 (iRbstitnte and Contracts Distinguished from -waiver 124 Operates as discharge how 124 Subject Defined, natural bom 271 T Tenement Defined 375, 283 Tenants Paravail, defined 282 In capitse or cheif - ?82 In fee simple or in fee-- ^97 For life .301,302 Eeceivea emblements when 303 Privileges of, under 303 In tail after possibility of issue extinct 304 By curtesy of England 304 In dower 306 For years 310 AtwiU -..-310 By sufferance 310 lu severalty 321 In coparoenery - 325, 324 In common ..-..325 Tender Aspects of 128 How applied.- 130 Defenoeof 130 Legal 130 Legal, in United States 130 Legal, in England 130 Tenure page. Feudal, origin of 279 Defined 28S Kinds of 283 Highest known in law 284 Of Knight Serrice 284,287 By cornage 287, 289 Abolished 287, 3!)4 Frankalmoigne 267, 296 By Grand Serjeanty. 289 In burgage -.289, 290 In free socage 290 In Gavel-kind 290 Grand divisions of 291 In pure villanage : 891 In copyhold 291,292 Distingnished from estates :300 Distinguished from titles 300 Tenendum Defined _ 343 Testament Title by 338 Persons prohibited from mak- ing 389 How divided , ...-390 When become operative- 390 Of different dates^ 390 How avoided 391 Theodosian Code, The 257 Things Real, defined _. 275 Personal, defined 275, 364 Personal, consists of what. -.364, 365 Person^, compared with realty- -364 Personal, owners of 371 Tithes Kinds of . «... 377 Defined __ 377 Title Acquiring of 99 Defined 336, 333,341 Methods of gaining--326,327, 333, 334 By purchase 333 By descent , 334 By prescription 337 By act of parliament 353 Transfers of in America 353 Loss and acquisition of 371 By occupancy 373 INDEX. XXI Title— Continued. pagb. By accession — 373 By copy-right and patent-right-- 373 By saocession 374, 375 By marriage.-. 375 By jndgment 376 By bankruptcy. J 387 By testament 388 By administration .. 388 Trespass Defined 12 On the case.-.. 12 Tmstee Datyof wi 110 Tlllanage faqb. Pure, defined 284,892 Privileged, defined .- 284, 392 Villeins Classes of 292 Regardant 292 In gross • 292 Defined 292 Powers of - 295 Told Defined 91 Voidable Defined 91 u l^errimae Fidei Contracts Defined 60 Subjects treated as 61 How divided 61 Ultra Vires Contracts of — -- 45 1Jnli4iaidated Damages Defined 121 ITndae Influence Defined--- 48, 69 Presumption of, made when-- 69, 70 Bules relating to 70, 71 Rules of in New Xork 72 IJn enforceable Defined 91 Usage Meemingof phrases of. 116,117 Gonditione under which it must act 117, 118 Use Defined 350 Statute of 350 Cestue que 330 V Veto Power of by sovereign 267 President's power of 267 Contrasted with royal negative. -267 w IVager Defined 75 Considered-- 76 Statutes regulating 77, 78 Contracts of 78 ■Waiver Defined 123 Eule of 123 Wai-d Incomes of 286 In marriage 886 Wardships Defined 285 In socage 393 In cases when 293 Warranty How used : .- —58 Expost facto 58 Defined 141 Kinds of- 344 Lineal 344 Collateral 344 Waste Defined 405 Kinds of 405 Action of 1 406 KedresB for injuries of 405 "Ways Definefl 278 xxu INDEX. WUlS > PAGE. Statute of. 361 Effects of marriage and birth of child on ; 363 How made in the United States-363 By whom made 389 Persons prohibited fiom making.389 By fem'ecoTerte 390 Codicil of 390 HowproTHn 392 Probate of 392 ■Writs Of error „ 402 Of mondamnsor prooednie 405 Of estrepement 405 Of waste 406 ■Wrotts PAGB- Defined 360 HowdiTided. 260,394 Bedress for 369- Private and pnblic distingnished.394 Bedress of private 395 Causes of 403 Causes, pecniiiary 403 Canses matrimonial 403 Causes testamentary 403- X'ear Books Defined 256 Year Defined 30» ANSON ON CONTRACTS. BY PROF. JEEOME C. KNOWLTON. Part I. INTRODUCTION. AGREEMENT 2. WJmt are the main objects of inquiry which arise vn the discussion of the Law of Contract f {a) Nature of contract, (b) Its Foundation, (c) Its Opera- tion, {d) Its Interpretation, {e) Its Discharge. What two ideas are most prominent in contracts? The two most prominent ideas are agreement and obliga- tion. 1 What does an agreement require for its existence? ^ . - An agreement must have at least two parties. 2 Of what is an agreement the outcome? An agreement is the outcome of consenting' minds, and the- idea of plurality is essential to it. 2 1 2 QUESTIONS AND ANSWERS. What must he the intention of the parties? There must be a distinct intention common to both parties, as doubt, or difference are incompatible with agreement. 2 What are the essentials to an agreement? 1. An Agreement requires for its existence, at least two parties. 2. Parties must have a distinct intention common to both. 3. Parties must communicate to each other their common intention. 4. The intention of the parties must refer to legal rela- tions. 5. The consequence of agreement must affect the parties themselves. 2, 3 Will a secret acceptanoe of a proposal constitute an Mgreerhentf A secret acceptance of 2, proposal will not bind the par- ties. 2 When do proposal and acoepiance fail to constitute a ■contract? They fail if essential matter be left for future considera- tion. 3 Will an agreement made in frolic and hanter hind? It will not, it must be an act in law, as opposed to any agree- ment of a social character. Something which is of value. 3 JSTote 1. Is the verdict of a jury, or the decision of a court, the necessary requisite to an agreement? Tf either is sufficient. 3 What is an agreement? An agreement is the expression by two or more persons of an Intention to affect the legal relation of those persons. 3 -Sow. is the term agreement wider than contract ? 1. It may not create an obligation, as in conveyances and gifts, wherein the agreements of the parties affects at once a transfer of rights in rem (an action against the thing). 3 ANSON ON CONTRACTS. 3 2. It may only create it remotely, as in all agreements which create obligations incidental to transactions of a different and wider sort, as marriage and the settlement of property in trust. 3 When parties have not agreed, upon the same terms what is the effect? The agreement is not binding. The intention must be dis- tinct and common to both. 3 Illustrate an agreement which does riot affect a legal .relation? Where A agrees to dine with B at 7 p. m., and fails to appear, is one. What one thing is essential to a contract? A promise to do or forbear from doing a certain thing. 4 What is an illustration of an ohligation of contract hut not agreement? A verdict of a jury or decision of a judge sitting in banco. 4 Give an example of where an agreement may he a wider term than a contract? The marriage status and a settlement of property in trust for persons born or unborn. 4 What is the first illustration of an agreement leing hroader than a contract? Such as conveyances and gifts. 4 now does an offer difer from mere statement of intention? In that it imparts a willingness to be bound to the party to whom it is made, who, by acceptance, turns the offer into a promise. 4 What are the three stages necessary to making an agree- ment which results in contract? 1. There must be an offer. 2. There must be an acceptance of the offer, resulting in a promise, and 4 QUESTIONS AND ANSWERS, 3; The law must attach a binding force to the promise so as to invest it with the character of an obligation. 4 llow does the term contract differ from other forms of agreements Bj having for its object the creating of an obligation be- tween the parties to an agreement. 5 OBLIGATIOJSr. 5. What is an obligation? An obligation is a legal bond whereby constraint is laid' upon a person or a group of persons, to act or forbear on behalf of another person or group. 6 ' Is a de^ a contract, and what oMigation results from it? A deed is a contract but no Obligation results except in the clause of warranty. 5 What are the characteristics of an obligation? 1. A control— exercisable by one or both of the two persons or groups over the conduct of the other, vinculum juris. 2. Meeting of two parties. 3. The parties must be definite. 4. The liabilities must also be definite as they relate to- definite acts or forbearances. 5. The matter must be reducible to a money value. 5-6-7 What is an ol)ligation% It is a control exerciseable by definite persons over definite persons for the purpose of definite acts or forbearances, reducible to a money value. 7 Can a f arty be bound by an entire community? He cannot be bound by a community. 5 ANSON ON CONTRACTS. 5 What are the various sources of ohligation? 1. Agreement, resulting in a contract. 2. Delict, or where a primary right to forbearance has been violated, as where rights to property, to security or to character, have been violated by trespass, assault or slander. 3. Breach of contract. 4. From judgment of court called in England a Contract of Record. i 5. Quasi Contract. 6. Acts springing from agreement but wider than con- tracts. 7-8-9 What is the one object in view hy parties who enter into a contract f It is to create an obligation between the parties. 9 What is a contract f 1. A contract is an agreement between two or more persons for a sufficient consideration, to do or not to do a certain thing. II Blk. Comm. 442. 2. A contract is an agreement, enforceable at law, made between two or more persons, by which rights are acquired by one or more to acts or forbearances ou the part of the other or • others. 9 What are the six essentials to a simple contracts 1. Persons able to contract. 2. Persons able to be contracted With. 3. A thing to be contracted for. 4. A good and sufficient consideration. 5. Clear and explicit words to express a contract agreement. 6. Assent of both the contracting parties. 9 What is the lecjaL distinction hetween obligation and duty f A duty is a moral obligation to do or refrain from doing a certain thing, while an obligation is a legal bond with a con- dition annexed and a penalty attached for the nou-fullfillment of the same. Duties extend beyond obligation and direct the affections, desires, and intentions, as well as the actions. 7 6 QUESTIONS AND ANSWERS. What is an oMigation arising out of an agreement f It is that form of agreement which constitutes a contract. An offer is made by one, accepted by the other, and the result of this agreement is a legal tie binding the parties to one another in respect of some future acts or forbearances. 7 WfiAt is the oMigation ddictf The obligation which arises from delict, occurs where a primary right to forbearance has been violated; viz: As where a right to property, to security, or to character, has been vio- lated by trespass, assault or defamation, and as a result the wrong doer is bound to the injured party to make good his breach of duty in such manner as is required by law. 7 Is such an act created iy the free will of the parties? It is not, but springs up immediately upon the occurance of the wrongful act. 7 What obligation arises out of hr each of contract? When A is under promise to X, X has a right against A to the performance of his promise when it becomes due. But if A breaks his promise, the right of X has been violated, and a new obligation springs up at once, a right of action for the . breach of- the contract obligation. 7 When does such an obligation come into existence? It springs up immediately upon the occurrence of the wrongful act, the same as in delict and breach of contract. 7 What obligation arises out of judgment? The obligation may arise from the judgment of a court of competent jurisdiction, ordering something to be done or for- borne to be done, by one of' the two parties, in respect to the other. This is sometimes styled a Contract of Record in English Law. 7 What is said of such an obligation? It is unfortunate, because it suggests that an obligation springs from agreement, which is really imposed upon the parties ab extra, (from without). 7-8 What obligations may arise from a Quasi Contract? ANSON ON CONTRACTS. 7 It is a term used for that class of legal relations wliicli pos- sess this common feature; viz.: that without agreement and without delict, or breach of duty on either side, Ahas paid some-^ thing which X ought to pay, or X has received something which A ought to receive. 8 What is the law in such cases of Quasi Contract? The law imposes a duty ,upon X, to make good the advan- tage to which. A is entitled, and in some cases the practice of pleading has assumed a promise by X to A, making it have the semblaace of a contract. - 8 What ohligations may arise from agreement f All obligations incidental to such acts in the law, as mar- riage or the creation of trusts. 8 Can a contractual obligation arise incidentally to an agreement which has for its direct ohject the transfer of property? It is undoubtedly possible for such an obligation to arise, as in the case of a conveyance of laud with covenants annexed, or the sale of chattels with a warranty, it may be dealt with as a contract obligation. 8 Can an obligation, arisvng out of agreement, he enforced' in court? If they satisfy all the requirements of the law, yes. 8 questions and answers. Part IL THE FOEMATION OF CONTRACT. What a/re the elements necessary to a valid contract? ) 1. Offer and Acceptance. 2. Form and Consideration. 3^ Capacity of the parties to make a valid contract. 4. Genuineness of consent expressed in offer and accept- ance. 6. Legality of the objects which the contract proposes to effect. 10 What is the result of these elements f 1. Where all of these elements coexist a valid contract results. 2. Where one or more are wanting, the agreement is in some cases unenforceable, in some voidable at the optiou of one of the parties^ and in others absolutely void. 10 CHAPTER I. OFFER AISTD ACCEPTANCE. Where must agreement originate? Agreement must originate in offer' and acceptance, or in questions and answers, expressed or implied. Il How must offer and acceptance be made? The simplest form is applicable to all contracts under seal. 12. Is a promise not under seal binding in English Law? Not unless the promisor obtains some beaeiit in return for his promise, called a "consideration." 12. ANSON ON CONTRACTS. 9 Mow many forms may proposal assume? It may assume two forms, (1) offer of a promise, (2) offer ■of an act. 12 JECow Tuany forms may acceptance assume? Three forms, (1) simple assent, (2) giving of a promise, (3) doing of an act. 12 In how many ways may a contract originate f In four ways; viz: 1. In the offer of a promise and its acceptance by simple assent. 2. In the offer of an act for a promise, where a man offers services, which, when accepted, binds the acceptor to reward him for services rendered. 3. In the offer of a promise for an act; as where a man -offers a reward for the doing of a certain thing, which being ■done, he is bound to make good his promise to the doer. 4. In the offer of a promise for a promise, in which case, when the offer is accepted by the giving of the promise, the contract consists in outstanding obligations on both sides. 12 Whxit is an, executed contract? An executed contract is one which has been wholly per- iormed or a present consideration for the promise. 13 What is an executory contract? An executory contract is one which is either wholly imper- formed or one in which something yet remains to be done on .both sides. 13 What is the first rule of offer and acceptance? 1. An offer or its acceptance, or both, may be communicated •either by words or conduct, but it is essential to their operation that they be communicated. 14 Illustrate acceptance of an offer ly conduct? When A asks X to work for him for hire, X may accept bv simply doing the work, if no form of acceptance is pre- scribed in his offer. The doing of the work is the offer, the permission, the acceptance. 14 10 QUESTIONS AND ANSWERS. When does art order for goods amount to a contract? Not until some act is doiv. on the faith of it, by the person to whom it is given, or until it is accepted, and if above $50,' acceptance must be in writing. Orders for the delivery of personal property as a rule do not require any acceptance other than delivery. *(See bottom page 14, Note 1 and Cases- cited. When goods are ordered hy mail what oompletes the con- tract f An acceptance of the order by shipping goods completes- the contract. 14, Note 1 How may acceptance he communicatedf In various ways; by mail, telegraph "or special messenger. 15- What is the second rule of offer and acceptance? The offer must be intended to create, and capable of creating- legal relations. 18 What is the third rule of offer and acceptance? Acceptance must be absolute and identical with the termfr of the offer. 19 What is the fourth rule of offer and acceptance? An offer unaccepted creates no rights, but may be revolted or lapsed before acceptance. 20 Stata the fifth rule of offer and acceptance. An acceptance turns an offer into a contract and i^ irre- vocable. 22 State the sixth rule of offer and acceptance. Until the moment of acceptance an offer is revocable. 25 State the seventh rule of offer and acceptance. An offer need not be made to an ascertained person, but no contract can arise until it has been accepted by an ascertained person. 31 What were the facts in the case of Household Ins. Co. vs. Grant? *) When references are made to the NOTES at the bottom of the pages, they will be found in the notes as they are numbered in the answer, to correspond with those at the bottom of the page in Anson on Contracts. ANSON ON CONTRACTS. H See Chapter on Leading Cases. Ans. 24 What w&re the facts in the case of Byrne vs. VanTien- hoven? See Chapter on Leading Cases, Ans. 26-27 What were the facts in the case of GooJc vs. Oxley? See Chapter on Leading Cases. Ans. 27-28 What were the facts in the case of Dickinson vs. Bodd? See Chapter on Leading Cases. Ans. 28-29 What were the facts in the case of Wain vs. Wurltersf See Chapter on Leading Cases. Ans. 58 CHAPTER IL FOEM AND CONSIDEEATION. 36. ' What subject is treated in Chapter II? Form and Consideration of Contracts. 36 Which was the earlier test.. Form or Consideration f Form was the earlier test of a valid contract. 36 What is Form? By form is meant the peculiar solemnity attaching to the expression of agreement, which of itself gives efficacy to the contract. 36 Ai the early common law what two kinds of contracts existed? 1. Formal contracts or contracts under seal. 2. Informal contracts or contracts having an executed consideration on one side, with an implied or express promise to re-pay on the other. 37 In what court does consideration seem to have originated? In the court of Chancery. 38 12 QUESTIONS AND ANSWERS. What were actions ex-contratu in early common law? They were actions growing out of breach of promise, either express or implied. 38 What were the only actions of this natiire durvng the 13th and nth centuries? 1. Covenant, or for a breach of promise made pnder seal. 2. Deht, or for the recovery of a liquidated or certain sum of money, or for the recovery and delivery of goods, work done, or money lent. 3.. Detinue for the specific" recovery of goods and chattels, wrongfully retained from the rightful owner. 38-9 When could one recover for an executory agreement f Only wben such agreement was made under seal. 39 To what form of action did a hreach of an executory con- tract give rise? To the action of "trespass on the case." What was a Trespass? Trespass on the case? Trespass was an action brought for injuries resulting from immediate violence. Trespass on the case lay for the conse- quence of a wrongful act, or that for which an action of tres- pass could not be sustained. 39 What was the origin of assumpsit or the recovery of dam- ages for the non performance of a promise? The action of assumpsit lay originally for malfeasance; then for misfeasance and lastly for nonfeasance. 39 Define each of these terms. 1. Malfeasance was the doing of an act which was wrong- ful from the beginning. 2. Misfeasance was the doing of a lawful act in an im- proper manner, or in a way that it should not be done. 3. Nonfeasance was the neglect to do what one was law- fully bound to do. 39 On what informal contract could one recover? On an executory agreement arising from the sale and delivery of goods, the agreement to be under seal. 39 ANSON ON CONTRACTS. 13 CLASSIFICATION OF COl^TEACTS. How are contracts classified^ * 1. The formal contract, depending for validity upon/WOT. (a) Contracts of record, (h) Contracts under seal. 43-44 2. Simple contracts, depending upon consideration for their, validity, (a) Eequired by law to be in some form other than under seal, (b) No form is required. What is the onlij formal contract in English law? The deed or contract under seal. 43 What are all other contracts in the English law? They are simple contracts, and depend for their validity upon the presence of consideration. 43 'What are contracts in writing, hut not under seal, called? They are called simple or parol contracts. 43 CONTEACTS OF EECOED. What are the different contracts of record f Judgments, recognizance, statutes merchant and staple, and recognizances in the nature of statute staple. 44 What is a judgment of record? A judgment is the final consideration and determination of a court of competent jurisdiction, upon the matters submitted to it, evidenced by a record, or that which is by law substituted in its stead, rendered in due form and entered on record. 44 Note 1 Wliat are the chief characteristics of a judgmant? 1. Its terms admit of no dispute, but are proven by pro- duction of the record. 2. As soon as it is created, the prior existing rights merge in it. 3 14 QUESTIONS AND ANSWERS. 3. The creditor lias certain advantages which an ordinary creditor has not. He has a doable remedy for his debt, viz: An execution upon judgment, and an action of assumpsit for the nOn'-fulfillmeHt of the obligation. 44-45 ^Kat effect did entry of judgment Jiave at common lam? It made the judgment final, when entered upon record. 44, Note 1. Can a judgment he sued over again? Yes, as many times as the plaintiff chooses, until it is paid. Upon what matters is a judgment conclusive? A judgment rendered on an issue at law is conclusive as to all matters well pleaded ; upon an issue of fact it is conclusive only as to facts without the existence and proof or admission of which it could not have been rendered. 45 Note 1 What is a recognizance? A recognizance is a contract made with the Crown in its judicial capacity; or a recognizance is an obligation entered of record, defeasible on condition that the recognizor do some act required of him and specified in such record. 45, Note 1 In England and, America is an ordinary iond a recog- nizance? It is in America, but not in England. '45 CONTRACTS UNDER SEAL. How is a contract under seal considered or treated? 1. How a contract under seal is made. 2. "What are its chief characteristics apart from simple con- tracts? 3. When is it necessary to contract under seal? 46 Was it necessary at common law for an instriiment under ' seal to he signed? Formerly it was held in some doubt, but to day it must be signed. 46 ANSON ON CONTRACTS. 15 What was the common law seal'? It was an impression of wax or wafer, affixed to an instru- ment, but at present an impression upon paper is sufficient, if the court can recognize it. 46 Note 1 /* a pen scroll a common law seal? It is not at common law, but is good by many of the state statutes. 46, Note 1. What hinds of delivery of deeds are there in existanoe? 1. By an actual handing to the other party. 2. By delivery in escrow. 3. By words of intention that it should become operative, although retained in the hands of him who executed it. 46 see also Note 2 What is a deed in escrow? A deed m escrow is where the deed is delivered to a third party not interested, to hold until certain conditions are complied with by the grantee, when it is to be handed over to him. 46 What of the old rule of delivery in escrow? It must not be delivered to one who is a party to it, or it becomes an absolute deed. Modem cases over-rule it. 47 What are the cha/racteristics of a contract under seal? 1. Estoppel. 2. Merger. 3. Limitation of actions. 4. Kemedies against debtor's estate. 5. Gratuitous promise under seal binding. 47-48 What is am, estoppel? 1. An estoppel is a prohibition to deny all statements of facts made by a person under his own hand and seal. He cannot deny any matter he has asserted under seal. 47 2. An estopple is a preclusion, in law, which pre^'ents a man from alleging or denying a fact, in consequence of his own previous act, allegation, or denial of a contrary tenor. Steph. PI. 197 16 QUESTIONS AND ANSWERS. What is a merger under ■seal? A merger is an extinction of a lesser security, (from a sim pie contract), into a higher security (to a contract under seal.) 48 What is the limitation of actions f 1. On a simple contract, the right of action is barred in six years 2. On a contract ander seal, in twenty years. Qualified by statutes. 48 What are the remedies against a debtor's estate, under seal?' They are the rights possessed by the creditor by deed, asainst the debtor's estate. JSTot so in si mole contracts. 48 Which kind of creditors has the greater right utxder the statutes? Neither; both have equal rights Is a gratuitous promise under seal binding? , In some states, a sealed instrument is presumptive evidence of a good consideration, in other states it is not. 49 Also Note 1 At common law, what could one shoio in defense? A want of consideration could be shown. 49 What is a land? A bond is a promise, defeasible npon certain subsequent conditions. 50 What classes of contracts at common law were regui/red to- he under seal? 1. Gratuitous promises. 2. Contracts with corporations. 50 What exceptions to the common law rule with regard to corporations ? 1. Cases in which the rule would defeat the object of the corporation 2. Cases in which the operation of the rule would cause great and constant inconvenience to the corporation. 50-1-2 ANSON ON CONTRACTS. 17 In United States, are contracts of corporations required to be under seal? They are not. 51, Note 1. SIMPLE CONTRACT. What class of contracts at common law are not required to ie under seal? Simple or parol contracts need not be under seal. 53 What are the exceptions to this rule? 1. Acceptance of a bill of exchange mnst be in writing 2. Assignments of copyrights must be in writing 3. Contracts of Marine Insurance must be in the form of a policy 4. Transfer of shares in stock companies 5. Acknowledgement of a debt barred by Statute of Limita- tion must be in writing signed by the debtor. 53-54 §. The 4th and 17th sections of the Statute of Frauds must be in writing. 53-54 What is the substance of the fourth '■^Section of the Statute of Frauds? " No action shall be brought, whereby to charge. 1. Any executor or administrator upon any special promise to answer damages out of his own estate 2. The defendant upon any special promise tti answer for debt, default or miscarriage of another person 3. Any person upon any agpeement made in consideration of marriage 4. Upon any contract for. the sale of lands, tenements or hereditaments, or any interest in, or concerning them 5. Upon any agreement not to be performed withiq one year from the making, unless the agreement on which such action is brought, or some memorandum or note thereof, shall be in writing, signed by the party to be charged, or some other person thereunto lawfully authorized." 54 18 QUESTIONS AND ANSWERS. Into what three heads does the discussion of this para- graph fall f 1. Form required by the section 2. Nature of the contracts specified in it 3. Effects upon such contracts for non compliance of some of its provisions. 54 When can the memorandum or note in writing he made? At any time between formation of contract and com- mencement of action. 55 Can a name he supplied, iy parol evidence? Initials are valid and parol evidence may supply a name. 55. What must the memorandum of the contract show ? It must show who the parties to the contract are. -55 Need the terms all he expressed in the same document? They need not, but must be consistent, connected, and com- plete. 56 What is the only signature necessary ? That of the party to be charged. 56 What is meant hy stating it m.ust be complete? When a contract does not fall within the Statute of Frauds the parties may either 1. Put their contract into writing; 2. Contract only by parol ; or 3". Put some terms in writing, others by parol. But where the contract does fall within the Statute of Frauds all its terms must be in writing, and parol evidence of terms not appearing in writing invalidates the contract, as showing it was some- thing other than that which appeared in the memorandum. 75 3Iay parol proof he received in the United States? Yes, in some cases in proof of collateral papers of the memorandum. 57, Note 1 Must the consideration appear in writing, and what rule 'determ,ines' it? It must, as well as the terms ,of the promise sued upon, which was determined by the case of Wain vs. Warlters in 1804. 57 ANSON ON CONTRACTS. 19 Is the case of Wain vs. Warlters followed in United States? Many states do and many do not follow it in the United States. Many states have provided by statute holding that the consideration must be expressed in writing. 57, Note 2 What must a complete memorandum evidence? 1. A contract concluded, so far as the party to be charged is concerned , 2. The names of both contracting parties 3. The subject matter so described as to be identified 4. In contracts of sale the terms of credit and price agreed upon, where a definite price and term of credit were con- tracted for 5. In many states. the consideration for the undertaking. 58 Note 3 Can an executor he made to pay any thing oxd of^ his oxon pochet? He cannot; his liabilities are limited by the assets of deceased. 54 What is the substance of the ^'■llth Section of the Statute of Frauds.'''' v It enacts that no contract for the sale of any goods, wares and merchandise for the price of £10 sterling or upwards shall be allowed to be good 1. Except the buyer accept part of the goods so sold and actually receive them 2. Or give something in earnest to' bind the bargain, or in part payment 3. Or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such "contract, or their agents thereunto authorized." 64 Of what two hinds are the liabilities of an executor or administrator, in respect to the estate of a deceased perwn? Thev are of two kinds, viz: 1. At Common Law he may sue and be sued, upon obliga- tions devolving upon him as representative of the deceased. 20 QUESTIONS AND ANSWERS. 2. In Equity he may be compelled to carry out the direc- tions of the deceased in respect of legacies, or to give effect tO' the rules of law relating to the. division of the estate of an intestate. 58 Must he fay these defioiencies out afhis own jpocket? In neither case is he bound to pay anything out of his own pocicet; his liabilities are limited by the^ assets of the deceased. 58 ^ Under what circximstances would he he hound to pay from his own resources? If in order to save the credit of the deceased, or for any other reason whatever, he choose to promise to answer dam- ages out of his own estate, that promise must be in writing, together with the consideration for it, and must be signed by him or his agent, as the presence of writing does not atone for the absence of consideration. 59 From what must a promise be distinguished? It must be distinguished from an indemnity, or the promise • to save another harmless from the results of a transaction into which he enters at the instance of the promisor. 59 When is tTie ffomise to indemnify within the Statue? When the promise to indemnify is, in fact, a promise to pay the debt of another it is clearly within the Statute. 59,^ JSTote 1. How many parties munt there he in contsmplation? There must be three parties in contemplation. 59 Jones oioes Smith, 'and Brown agrees with Smith, that if he will not sue Jones for thirty days, he {Brown) will pay the debt of Jones, accordingly Smith forbears to sue,' is this promise void f not in writing, and why? This is a promise to answer for the debt of another, and anv such promise is void unless in writing. 59 When the promisor mahes himself primarily liable, does the promise come within the Statute Frauds? It does not, and need not be in writing. 59 ANSON ON CONTRACTS. 21 If Jones asks Smith to sell goods to Brown, and Jones promises Smith tJiat he will pay for them if Brown does not, and Smith sells the goods to Brown, is this promise void if not in writing, and why? ■ Yes, because it is the promise to pay the debt of another and comes within the Statute of Frauds. 59 What is the inquiry made in such cases? To whom is the credit given; for if any credit was given to* the party receiving the benefit, then the other party is not holden on a verbal promise. 69, !Note 2. If Jones owes Smith, and Brown agrees that if Smith will release the deht, he {Brown) will pay the debt, and Smith does it accordingly, will Brown be bound by this promise if not in writing, and why? He will, because the debt of Jones, by such an agreement, is extinguished, and the pre-existing remedy abandoned, thus making an original promise by Brown, and consequently not falling within the statute. 60 If Jones owes Smith, and Brown in consideration tJiat Jones should deliver him {Brown) hay to the value of the debt, verbally promised to pay Smith, the hay having been delivered, is Brown bound to his promise, and why? He is, because the promise of Brown, to pay the debt of Jones, arises out of a new consideration of benefit to Brown, and is an origina,! promise on the part of Brown for a valuable^ consideration and is not within the Statute of Frauds. 59 If Brown should say to Srriith., '^ Let Jones have what goods he may desire and I will pay you for them, ^'' and. ^ Smith lets Jones have the goods, is Brown bound by this promise, and why? He is, because this is the debt of Brown alone, and is not within the Statute of Frauds. 59 If Brown should soy to Smith, "let Jones have what^oods he mm/ desire and I will pay you for them if Jones does 22 QUESTIONS AND ANSWERS. not^'' and Smith lets Jones have the goods, does this promise hind Brown, and why? It does not, beeause Brown's promise shows that he intended to pay Jones' debts if he did not pay them himself, and being a promise to pay the debt of another is- void, because it is not in writing, and falls within the Statute of Frauds. 59 Mow can one ascertain who is to be held in the above cases? The person held is he to whom credit is given. What other liabilities does the Statute of Frauds include besides those arisvng out of contract? It includes liabilities arising •out of wrong also. 60 Where Jones wrongfully rode . the horse of Smith and killed it, without leave, Brown promised to fay Emith a^ cer- tain sum if Srfiith would forbear to sue Jones, what hind of a promise was this held to be? It was held to be a promise to answer for the fault or miscarriage of another, and within the meaning of the- Statute. 60 What liind of a contract is the above? This contract is an exception to the rule that "the agreement or some note or memorandum thereof," which the statute requires to be in writing, must contain the consideration, as well as the promise. 60 What is meant by '•'■the agreement made intonsideraiion of marriage." Not the promise to marry, but the promise to make a pay- ment of money or a settlement of property in consideration of, or conditional upon a marriage actually taking place. 60 What is meant by an interest in land? By an interest in land under the 4th section of the Statute of Frauds, is meant that the contract must be for a substantial interest in the land, amounting to an easement or more; and not for remote or inappreciable interests. 61 ANSON ON CONTRACTS. 23 The principal question of intevest relates to what? It relates to the sale of crops ; as a distinction has been drawn between fniotus industriales, or emblements, and fructus naturales or growing grass, timber, and fruit upon trees. 61 Do fructus industriales constitute an interest in land, under the Fourth Section of the Statute of Frauds? They do not, under any circumstances. 61 Do fructus naturales constitute an interest in land? They are considered to do so, if the sale of them contemplates the passing of the property in them before they are severed from the soil. 61 Where the property is to pass after severance, what are hoth classes considered to he? They are then considered to be goods, wares and merchan- dise, and within the meaning of the 17th Section of the Statute of Frauds, 61 Where an agreement is not to he performed within a year, what two points should he noted loith regard to this form of an agreement? (a) It must contemplate the nonperformance within the year, (b) It must be contemplated by both parties. 62 What were the facts in the case of Donnollarivs. Bead? See Chapter on Leading Cases. Anson 62 If such contracts, under the 17th Section of the Statue of Frauds, are not in writing are they void? They are not void, but cannot be proved. 62 What were the facts in the case of Leroux vs. Brown? See Chapter on Leading Cases. Anson 62 May a contract, valid hy the laws where it is made, although not in writi/ng, he' enforced in the courts of a coun- try where the Statute of Frauds prevails ? It will not be enforced unleSs the contract is put in writing, because the procedure is governed by the lex fori, (the law of the court), and the mode 'of proof would depend on the law of the country or state where the action is brought. 62 24 QUESTIONS AND ANSWERS. Why does the lex fori govern such contracts? Because it is a question of admissibility and effect of evi- dence, which must be determined by the lex fori. What is the rule where the law of the forum and that of the place of execution of the contract coi/ncide? It will then be enforced, although required ' to be in writing by the law of the place of performance. 62, E'ote 2 Why will the contract he enforced under such circum- stances? Because the form of the contract is regulated bv the law of the place of its celebration and the evidence of it by , that of thB forum. 62, l!fote 2 When one fails to comply with the requirements of the Statute of Frauds, what is the effect, upon the contract? The contract is valid, but cannot be proved, and is conse- quently unenforcible. 63 What action will take a contract out of the Statute of Frauds? A part performance of the contract subject to certain quali- fications. 63 and Note 1 What did the 17th Section of the Statute of Frauds enact? The 17th Section enacted, " That no contract for the sale of goods, wares and mprchandise, for the price of £10 sterling, or upwards, shall he allowed to ie good, except the buyer shall accept part of the goods so sold and actually, receive the same; or give something in earnest to bind the bargain, or in part payment; or that some note or memorandum, in writing of the said bargain, be made and signed by the parties to be charged by such contarct, or their agents thereunto author- ized. 64 Do the rules applicable to contracts under the Jfth Section apply to those wonder the 17th Section? They apply with one exception. It is not necessary under the 17th Section, ' that the consideration for the sale should appear in writihg. 65 ANSON ON CONTRACTS. 25 WJiat were the facts in the ease of Lee vs. Griffin? See Chapter on Leading Oases. Anson 65 What effect has a contract of sale in English Laxof It has the effect of conveyance, as it passes the JDroperty in ■the thing sold. 65. What is an executed contract of sale? It is a bargain and sale, which passes the property in the thing sold. 65 What is. an executory contract of sale? It is ono where the property does not pass; the buyer" does not acquire a title or right in rem, to the thing agreed to be sold, but only a right in fersonam &^^va&i the seller. 66 When does an executory contract become executed? Such a contract will become executed and the property will pass, also the risk, to the purchaser, when the chattel is com- pleted, its price ascertained, or when the specific goods are appropriated to the contract by the vendor. 66 Does an executory sale or contract, for the sale of goods, -come within the 17th Section of the Statute of Frauds? Yes, they were brought under the Statute by the Lord Ten- terden's Act. In what does the consideration consist then? It is the substitution of a new agreement, with new parties, and a new consideration. 86 Why is a composition of creditors no exception to the gen- eral rule? Because the debtor not only pays the creditor a portion of the sum due, but procures a promise by each of his other cred- itors, or by a certain number of them, that each will be content with a similar proportion of payment, if the others will forbear to ask for more. 87 COI^SIDERATIOF EXECUTED. What were the facts in the case of Shadwellvs. Shadwell? See Chapter on Leading Cases. Anson 88 How may an executory contract always he discharged? By a mutual agreement between the parties. 88 What is meant hy an executory consideration? A promise given for a promise. 89 What is understood iy a consideration executed? An act or forbearance given for a promise. 89 What is the consideration when it is past? A. mere sentiment of gratitude or honor, prompting a return for benefits received. In fact, no consideration at all. 89 When does a contract upon executed considei-atian arise? When the proposal is the offer of an act for a promise, or the offer of a promise for an act. 90 If I take up war^s from a tradesman without any agree- ment of price what does the law conclude? It concludes that I contracted to pay their real value. 90 36 QUESTIONS AND ANSWERS. When will such an offer not hind a ferson? Where the person to whom such an ofEer is made, has no opportunity to accept or reject the things offered, an accept- ance which he cannot help, will not bind him. 90 A makes a general offer of reward for information^ X. supplies'the information, what becomes of A!s offer? It is turned into a binding promise by the act of ,X, who at once concludes the contract, and does all that he is bound to do under it. 91 In such ease the request for such services implies what? It implies a promise which becomes binding when the lia- bilities or expenses are incurred, to make good his loss to the promisee. 91 Where a man ordered four dozen hottles of wine, and eight were sent, thirteen bottles were retained and the rest sent hach,' the plaintiff sued on the original conPract to collect for four dozen. Could he do it? Held that the plaintiff could only recover for the thirteen bottles, it being a new contract as to the part he kept. 90 How must every promise in order to be binding, be made? It must be made in contemplation of a present or future benefit to the promisor. 92 What is a past consideration? It is an act or forbearance in time past, by which a man has benefited without thereby incurring any legal liability. 92 Will a past consideration ever support a subsequent promise? It will if the consideration was given at the request of the promisor. 93 ■ What were the facts in the case of Lampleigh vs. Braith- wait? See Chapter on Leading Cases. Anson'93 Where A volvMarily does that which B was legally com- pelled to do, and B afterwards, in consideration thereof. ANSON ON CONTRACTS, 37 expressly promises to pay A, will B be lov/nd ly such a •promised He will. 97. Is a debt barred by the Statute of Limitations considera- tion for a subsequent promise to pay it? Yes. 100 CHAPTEE III. CAPACITY OF PAETIES. From what causes may the incapacity of the parties arise f 1. Political or professional status. 2. Youth. 3. Artificiality of co^nstruction, such as that of corpora- tions, which being given a personality by law, take it upon such terms as the law. imposes. 4. Permanent or temporary mental aberration, of lunacy or •drunkenness. 5. Prior to 1883, marriage, subject to certain exceptions. 103-104 What powers has an alien to contract under the English LoAJof An alien has a.11 the powers of contracting which a natural born British subject has, except that he cannot acquire property in a British ship. 104 Ca/n an action be maintained in this country against a State of the United States P No action can be maintained against one of our States, ■except by virtue of some constitutional or statutory provision granting permission; and a remedy against the United States may be had in a court of claims. 104, Note 1 38 QUESTIONS AND ANSWERS. How is the term '■'■alien " used in the. United States? While the term "alien" quite informally applies to one- born beyond the jurisdiction of the United States, it is some- .times used in statutes imposing personal disabilities to one who is not a citizen of the State, as one may be a citizen of a state and not a citizen of the United States. 104, Note 2. May an alien enemy m,ake a contract? Any alien enemy, or British subject, adhering to the king's enemies, cannot, without license from the crown, make any fresh contract or enforce any existing contract during the con- tinuance of hostilities. 104 What rights has he to outstanding contracts? If puch contracts were made before the commencement of war, they are simply suspended, not annulled, and can b^ enforced upon the conclusion of peace. 104 Can foreign states and sovereigns and their representatives he Jield subject to the jurisdiction of the courts in this coun- try? They cannot, unless they submit themselves to it. 104 Can a contract he enforced against such persons? Not unless they choose to have it enforced, although they are capable of enforcing it. 104 Cam, a felon mahe a valid -contract? If convicted of treason or felony, he cannot, during the con- tinuance of his conviction, make a valid contract, nor can he ■ enforce contracts made previous to his conviction ; but such ■ contracts may be enforced by an administrator, appointed for the purpose by the Crown. 10§ Can aharrister sue for fees for services rendered? He cannot, if such services are performed in the ordinary course of his professional business, 105 ' Can a physician recover pay for ^services rendered oy request? Prior to 1858, he could not, at the present day he can. 105. ANSON ON CONTRACTS. 39 Are such disahilities, arising from professional status, Jcnown in America? They are not, all have equal privileges. 105, note 1 INFANTS. What is the general rule of common law in regard to infants f An infant's contract is voidable at his option, either before or after he has attained his majority. 105 When is a person of age f When the statutes are silent, a person, male or female, is of age on the beginning of the day before his .or her twenty-first birthday; but by- the statutes of many states a woman is of age at eighteen, a man at twenty-one. 105, Note 2 How is the common law rule of infants modified? (a) The contract ceases to be voidable if ratified upon the attainment of twenty-one years of age. (b) The contract cannot be avoided if it be for necessaries. 105 What has the better opinion always heen in regard to the ■first exception? That the contract of an infant is not void, but voidable at his option. 105 Sow were the contracts of infants classified under the early English and American decisions? 1. Binding, if for necessaries at fair and just rates. 2. Void, if manifestly prejudicial to the infant. 3. Yoidable at the election of the minor, if the contracts be to his benefit or to his advantage, according to circum- stances. 106, Note 1 40 QUESTIONS AND ANSWERS. EATIFICATION. Ratification is of how many kinds? They are, (1), couiraets valid until rescinded and (2), con- tracts invalid until ratified, 106 How may an infant's contract he avoided? 1. Executory contracts of an infant may be avoided before or after his reaching majority by his declining performance, and pleading infancy in defense to an action for a breach of the executory contract. 2. Executed contracts relating to personalty, may be rescinded by an infant, both before and after full age. 3. His EXECUTED contracts relating to jjealitt, such as his conveyance of land, cannot, as a rule, be rescinded until he arrives at majority. 4. Where by contract, an infant acquires an interest in property of a fijied and permanent nature, his interest may be fiuspended during his majority, but caniiot be wholly avoided untU he becomes of full age. 106, Note 1 For what is an infant held liable? If he occupies land until majority, he is liable for arrears of rent, which accrued during his minority. 106 How have infant shareholders ieen treated? As purchasers who have acquired an interest, not in the MERE chattel, BUT IN A SUBJECT OF A PERMANENT NATURE. 106 May. an infant become a partner at Common Law? He' may, and is also entitled to benefits though not liable for debts arising from the partnership during his infancy. 107 How will equity treat an infant fartn&rf Equity will not allow an infant, in taking the partnership accounts, to claim to be credited with profits and not debited- with losses. 107 ANSON ON CONTRACTS. 41 What was held hy the court where am, infant held himself ■out as beina in partnership with X, and continued to act as ^uch partner until shortly before he came of age, and then, though ceasing to act as a partner, did nothing to disaffirm the partnership ? He was held liable on debts which accrued, after he came of age, to persons who supplied X with goods. 107 What does an infant do under such circumstances? In thus holding himself out as a partner, he contracts a con- tinual obligation, which remains until he thinks proper to put an end to it, by notifying the world. 107 What is a feature common to all infant liabilities f Nothing short of an express disclaimer, will entitle a man, on attaining his majority, to be free of any of the above obliga- tions. Is the rule the same with contract's not continuous in their -operation f It is not; as the infant is not bound unless he expressly rati- fies them. 108 What is a common illustration of contracts, which in America, require a special reoission to avoid them? An infant's deed of lands. As a party holding lands under an infant's deed has a good title subject to be defeated only by the infant's disaffirmance of the deed. 108, Note 1 Whsn must clisafirmance of such deed be made? It must be made within a reasonable time after the infant reaches his majority; and reasonable time is considered a period not fe'horter than that prescribed by the Statue of Limitation. 108, Note 1 42 QUESTIONS AND ANSWERS, LOED TENTERDEN'S ACT. What is the substance of Lord Tenterden's Act? "No action shall be maintained whereby to charge any person, upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification after full age of any promise or simple contract made during infancy, unless such promise or ratification shall be made by some writ- ing signed by the party to be charged therewith." 108 What was the design of the Infanfs Relief Act of 1871i.f It was designed to guard not merely against the results of youthful inexperience, but against the consequences of honor- able scruples as to the disclaimer of contracts uJ)on the attain- ment of majority. 108 What effect had the Infant'' s Relief Act f (ij,) It made certain contracts absolutely void if entered into- with infants, and (b) It prevented any contract with an infant from becoming actionable as against him, by subsequent ratification. 109 Where an infant fays for goods which have not been delivered, can he recover back his money? He probably can ; and so could have done before the Infant's Act by avoiding" the contract. 109 Where the infant receives the gopds and pays for them, can he recover bach his money and themerchant the goods? Such a transaction would stand, neither could recover.' 109- May an infant enforce his contract? He may, the contract is not void, but voidable at his option. Ill What will equity do in such oases? Equity will not grant specific performance of a contract in which only one side is bound. Ill ANSON ON CONTRACTS. 4!^ Wlien is an infa,nt not liable even for necessaries? When residing at home and under the care of his father and supported b}^ him, he is not liable for necessaries. Ill, Note 1 What are necessaries? The necessaries of life, are food, clothing, etc. Also such things as are suitable to the station in life, and to the particu- lar circumstances at the time in which the infant is placed. What is one rule for determining necessaries? Evidence being given of the things supplied and .the circum- stances of the infant, the Court determines whether the things supplied can reasonably be considered necessaries at all, and if it comes to the conclusion that they cannot, the case need not be submitted to the jury. Ill Would a monkey era pop-gun he considered necessaries? Not under any circumstances. Ill Would a number of cop>ies, eight or ten, of Blackstone^s Commentaries be necessary? One would perhaps be so considered, but not eight or ten, by any means. Ill How do necssaries for infants differ? Things necessary to a person in one station of life, would not be necessary to a person' in a different station. Or things not usually necessary may become so from the circumstances of the infant, as in case of ill health, medical attendance, etc. 113 . Who takes the risk where a tradesman supplies expensive goods to an infant because he thinks that the infanfs circum- stances are better than in fact they are, or where he suiyplies goods of a useful class not knowing that the infarct is already sufficiently supplied? ■ The merchant does it at his own peril. 112 May an infant be held liable in tort for a breach of con- tract? He cannot. 113 44 QUESTIONS AND ANSWERS. What must the wrong he to make him liab}ef It must be jnore than a misfeasance in the performance of the contract, and separate from and independent of it. 113 Can a charge of trover and conversion he made against an infant, for goods sold and delivered to him? Ko, because the Infant's Belief Act makes a sale of goods to an infant absolutaly void. 113 When can an i/nfant he sued in tort? When an infant hires an article for a specific purpose and damage results, he is held liable, for what was done by him was not an abuse of the contract, but was the doing of an act which was expressly forbidden by the contract. 113 CORPOEATIONS. What is a corporation? It is an artificial person created by law. 113 How are the limitations to the cajjacity of a corporation for entering into a contract divided? ■ Into necessary and express limitations. 113 How must a corporation contract? A corporation being an artificial entity apart from the per- sons who compose it, and since it has no ideal existence apart froih its members, it must make all contracts through an agent or agents. llS Why cannot a corporation act in its own person? Because it has no person. 113 Under the Comnion Law how must all corporations con- tract? They must contract under seals and hence they cannot, as a rule, make negotiable instruments. 114 Does the above rule hold good in the United States? This rule is entirely abrogated in this country. 114, Note 1 ANSON ON CONTRACTS. 45 Whxit is said of the express limitations upon a corporate lody? They must vary in every case by the terms of the corpora- tion. 114 What power /tas a corporation to malce contracts in America? It has the power to make any such contracts as further the purpose of incorporation and are not prohibited by its charters or some statute binding upon it. 115, Note 1 Is a contract made ultra vires (beyond its poioera) void, why? Such a contract is void, not on the grounds of illegality, but from the incapacity of one of the contracting parties. 115 LUNATICS AND DRUNKEN PERSONS. What is the law with regards to contracts made with lun- atics and persons in a state of intoxication? The contract of a . luuatic or drunken person is voidable at his option, if it can' be shown, that at the time of making the contract, he was absolutely incapable of understanding what he was doing, and the other party knew of the condition. 115 What were the^ facts in the caSe of Molton vs. Camroux? See Chapter on Leading Cases. Anson 116 Is a lunatic absolutely incapable of contracting, if so found by a commission? He is not, but the presumption is very strong in such cases that the contract was not made during a lucid interval, and that the other contracting party was aware of the mental con- dition of the lunatic. 116 46 QUESTIONS AND ANSWERS. What is the rule vjJiere a contract is made with a drunhen person? A contract made by a person in the state of intoxication, may be subsequently avoided by him, but if confirmed, is Ijind- ing on him. 116. How is the deed of a non sane person, after being placed under guardianship, considered in law? It is absolutely void. 116, Note 1 ' MAKKIED WOMEIT. What is said of a contract with a married woman f Prior to January 1st, 1883, as a general' rule the contract with a married waman was void. -117 What exceptions were there to this rule? In some cases a married woman could make a. valid contract but could not sue or be sued apart from the husband ; in others she could sue, but could not be sued alone; and in still others she could both sue and be sued alone. 117 ' / How could a married woman acquire contractual rights? By reason of personal services rendered by her, or by the assignment to her of a chose in action. 117 What may (he wife of the King of England do? She is of capacity to grant and to take, sue and be sued as a feme sole, at the common law. 117 What other class of women had similar rights? ? The wife of a man civiliter rnortuus. 117 What did the custom of the City of London enable women to do? It enabled them (married women) to trade, and for that purpose to make valid contracts, without involving their hus- bands in their liabilities incurred in trading. 117 ANSON ON CONTRACTS. 47 What effort has a divorce vpon a married woman with regards to her trading obligations? She is restored to the position of 2, feme sole. IIT THE MARRIED WOMAN'S PROPERTY ACT. What rights did the Married Woman's Property Act of 1810, confer upon women f It gave her the power to make a contract for the exercise of her personal labor and skill, and maintain an action upon it alone. 118 What equitable estate could a married woman bind? Only such separate estate as was in her possession or control at the time the liabilities accrued. 119 What was the presumption as to engagements entered into, by married women? It was extremely strong that every sach engagement was entered into on the faith of her separate estate, but she could not bind herself, nor could she create liabilities in excess of ber estate, her creditor's remedy lay not against her, but her property. 119 What is the effect of the Married Woman's Property Act of 1882? All property, real or personal, possessed by a woman before, or acq uired after marriage, is her separate property. She can acquire, hold, and, 'dispose of it by will or otherwise, as though she were a /(sme sole. 119 48 QUESTIONS AND ANSWERS. OHAPTEE lY. EEALITY OF CONSENT. What causes arise ffom unreality of consent? (a) Mistake, (b) Misrepresentation, (c) Fraud, (d) Duress and (e) Undue Influence. 121-122 What is meant hy mistaJce? By mistake is meant, that the parties to a contract may not have intended the same thing ; or one or both may, while meaning the same thing, have formed untrue conclusions as to the subject matter of the agreement. 121 What is misrepresentation? Misrepresentation is where one of the parties ' may have been led to form untrue conclusions respecting the subject mat- ' ter of the contract by statements innocently made or facts innocently withheld by the other. 121 What is fraucL? Through fraud; these untrue conclusibns respecting the subject matter of the contract, may have been induced, by rep- resentations of the other party, made with a knowledge of their untruth and with the intention of deceiving. 121 What is dioress? Duress is where the consent of one of the, parties has been extracted from him by the other, by actual or threatened personal violence. 121 What is undue influence? It is where circumstances may render one of the parties morally incapable of resisting the will of j'the other, so tiiat his consent is no real expression of intention. 122 ANSON ON CONTRACTS. id' MISTAKE. WTiat Mnls ofmi'Stahe may there hef Mistake of intention and mistake of expression. 122 Where a man knows with whom he is dealing, and the nature- of the transa/'cion which he desires to effect, whom can he hlame if the terms of the contract do not bind the other party to carry cut the objects of the agreement, or to pay damages for the non performance? No one but himself. 122-123 Why could he not avoid such an agreement on the ground' of mistake? Because if that were so, a contract would become no more than a rough draft of the intentions of the parties to be ex- plained in the light of subsequent events, and corrected by the court and jury. 123 What must the parties do in order for them to arrive at an agreement? Their minds must meet, otherwise there is no agreement, 123 When does mistake as to the nainore of the transaction arise? This is of rare occurrence, and must arise from from the mis-representation of a third party. It arises when a man is induced to contract by some deceit which ordinary diligence could not penetrate. 124 WJiat were the facts in the case of Foster vs.Mackvnnon?' See Oliapter on Leading Oases, Anson. 124 In what three ways does a mistake arise? (a) As to the nature of the transaction. 123 (b) As to the person with whom the contract is made. 125- (c) As to the su1)ject matter of the contract. 126 50 QUESTIONS AND ANSWERS. ■ When and how does a mistake as to the person arise in contracting? Where A contracts with X, thinking he is contracting with M. Such mistake can only arise where A has in contempla- tion a definite person "with whom he desires' to contract. 125 Where A intends to contract with M, can X make himself a party to the contract by substituting himself for M? He cannot. (1) Because A looks to the credit- and char- acter of M, and (2) If X is put in the place of M, A does not ^et what he bargains for, and (3) Because X is never present to A's mind in the formation of the contract. 125 What general rule may be laid down as to such contracts? Where X without any fraudlent intentions substitutes him ■ self for M, so that A contracts with X under the belief that he is contracting with M, the contract is void. 126 What is every one who enters into a contract presumed to helievef He is presumed to believe that he can perform it, and that it is his interest to do so, and in like manner that the other party can and will perform it 127 What question arises in determining the legality of a contract? Not what the parties thought, but what they said and did. 127 A sells to X, and X believes he is buying a bar of gold, a ■case of champagne, a barrel of oyster; if the ba/r turns out to to be brass, the case to contain sherry and the barrel oat meal, does it avoid the contract. This depends upon the fact whether A sold to X, a bar" of metal or a bar of gold, a case of wine or a case of champagne, :a barrel of provisions or a barrel of .oysters, If speoific words were used in the sale it avoids the contract, if general words were used it does not. 127-127 ANSON ON CONTRACTS. 51 Why is this so? Because a man is not bound to accept a thing substantially different from that which he bargained for, 128 What is the distinction between mistalce a.nd failure? ^ Mistake prevents what a consideration implies, the existence of a contract. 128 When will mistahe as to the subject matter of a contract uvoid it? (a) The parties may be agreed, but the subject matter of their agreement unknown to them, may have ceased to exist. (b) The parties may have agreed in terms but A may be thinking of M, the subject matter, while X is thinking of m. (c) One of the parties may knowingly allow the other to contract under a misapprehension as to the extent of his promise. 128 If A agrees with X in respect to a thing which, unknown to both parties is non existent at the time of entering into the contract, does such a mistake avoid the contract? Yes, because such a mistake is, in fact, a phase of the sub- • ject of impossibility of performance. 129 Is a mistake^ as to the existence of a right, " ignorance of the law?" It is not, for in that maxim the word jus is used in a sense denoting general law, or the.Qrdinary law of the country. 129 When does the maxim that " ignorance of the law excuses . no one,'^ have no application? When the wordyW is used in' the sense of denoting a pri- vate right, that maxim has no application. 129 What hind of an agreement is this: A agrees with X concerning M, thinking that X is referring to M, lohile X agrees with A concerning m and thinks that A refers to m? Such an agreement is void, as under such circumstances there is a mistake in 'i.\e identity of the thing contracted for; . 62 QUESTIONS AND ANSWERS. the minds of the parties never really meet, and there is no '^rue consent. 130 What was held lohere A agreed to huy of X a cargo of cotton '■'■to arrive ex Peerless from Bombay " and there were two shijps hy that nam.e^ and the huyer meant one, Hie seller' the other f , It was held that there was no contract; because the carga did not come in the vessel of that name, which wag present to- his mind when he made the agreement. 130 Will the mere misnomer of the subject of a contract entitle either party to avoid it on that ground? Not if the contract itself contains such a description of its subject matter as to practically identify it. 130 What was held when A offered to sell an estate to X, but hy a mistaJce in adding np the prices of the various plots, offered it for £1,000 less than he meant f The Court would not enforce the c'ontract, because it was a mistake a& to the nature of the promise^ known to the party to whom the promise was made. 130, 131 Generally, how must the statements of contracting 'parties b(} taken? They rnust be taken to be conclusive against themselves. 131 How is the buyer protected as to the quality of the thing bought? That an article should come up to a certain standard of quality, must be the subject of express warranty. 131 When the buyer is unable to inspect the goods how is he protected? The law protects him by an introduction of implied war- ranties, which secure to him in substance that he shall obtain the kind of thing he bargained f,or, and that of a marketable quality. 131 ANSON ON CONTRACTS. 53 Is a dealer iound to depreciate his wares f v He is not, even though he knows that the buyer is formingi,' amindue estimate of their quality. 131 ' Under what circumstances viill there he a^ implied! xoar- ranty that the article is reasonably fit for the purpose to which it is to he supplied? When a person contracts to supply an article which he man- ufactures, or in which he deals, to be applied to a particular , purpose, and under such circumstances that the buyer neces- sarily trusts to the judgment or skill of the seller, an implied warranty accompanies the sale. 131, Note 1 Is the seller affected hy such impressions as the huyer may Jorm as to the nature of the promise? He is not; if the buyer thinks he is being promised a quality of article which the seller does not intend to warrant, the con- tract, holds nevertheless. 132 What should the huyer do if he wants to hind the seller to supply an article of a particular quality? He should make it a term in the contract. 132 When the seller knows that the huyer understands his promise in a different sense from that in which he gives it, what hind of a contract is it? The contract is void, because the apparent consent of the parties is unreal. 132. ILLUSTRATIONS OF MISTAKE. A sells X a piece of china, X thinks it is Dresden china, A thinks it is not, each takes the consequences. Will the contract hold, why? Yes, because each takes the, consequences. X may get a better tiling than A intended to sell, or he may get a worse thing than he intended to buy, and in neither case is the con- tract affected. 132 54 QUESTIONS AND ANSWERS. X thinks it is Dresden china. A knows that X thinks so^ and knows that it is not. Will the contract hold, why? The contract holds, unless A does something to deceive X. A is not bound to prevent X from deceiving himself as to the quality of the article sold. .132 X thinks that it is Dresden china, and thinks that A in- tends to sell it as Dresden china; A knows that it is not Dresden china, iut does not know tlvat X thinks he intends- to sell it as Dresden chiria. The contract says nothing of Dresden china, but is for the sale of chirM in general terms. Will the contract hold, why? The contract holds. The misapprehension by X of the- EXTENT OF A's PROMISE, unknown to A has no effect. It is not A's fault that X omitted to introduce terms which he wished to form a part of the contract. 132 X thinks it is Dresden china and thinks that A intends- to sell it as Dresden china. A knows that X thinks he is- promising Dresden- china, hut does not mean to prom^ise more than china in general terrns. Is the contract good^ why? The contract is void. X's error was not one of judgment^ as in above, but regarded the intention of A, and A, knowing that his intention was mistaken, allowed the mistake to con- tinue. 133 What is effect of a mistake in a contract?- Where it has any operation at all, it avoids the contract. 135 What remedies does the common law afford a person who- has entered into cm agreement void on the ground of mis ■ take? If the contract is still executory, he may repudiate it and' successfully defend an action brought upon it. If he has paid under the contract, he may recover it back upon the general ANSON ON CONTRACTS. 55 principle that "where money is paid to another under the influence of a mistake, an action will lie to recover it back." 135 What remedy has a person in equity f In equity the victim of a mistake may resist specific perfor- mance of the contract, and may also have the court set the contract aside. 135 MISREPRESENTATION. Why is it not easy to distinguish Misrepresentation from Fraud? (1) Because fraud is so widely used to cover misrepresent- ations oifact, which vary very widely in their nature and consequences and (2.) because of the general desire of the courts to exclude mere representations which do not form part of the terms of tlie 'contract from all effect upon its validity, (3) if a representation forms an integral part of the contract it is vir- tually placed on a level with a promise. 136 If the representation turns out to he false, how does its untruth affect the formation of the contract? It does not affect the formation of the contract at all, but operates as a discharge to the injuired party from his liabili- ties, or gives him a right of action as upon the failure of a promise. 136 What distinction then, is necessary to he made as to the different representations? Representation which affects the validity of a contract must be distinguished from representation which affects the perfor- mance of a contract. 136 o6 QUESTIONS AND ANSWERS. What phrases are not easily followed through the various meanings m which they are used? (a) Eepresentalion, (b) Condition, (c) "Warranty, (d) Indep- endent agreement, (e) Implied warranty, and (f) Warranty in the nature of a condition. 136 What general rules attempt to meet these dificultiesf (a) The practical test of fraud as opposed to misrepre- sentation is, that the first does, and the second does not, give rise to an action, ex delicto. 136 (b) Misrepresentation made prior to the formation of a contract, not constituting a term in the contract, will only affect its validity in certain special cases. 137 (c) Where representations made prior to the conclusion of a contract have any effect, they affect the formation of the contract and make it voidable. 137 Can an vnnodent misrepresentation 'by mistahe he made ■on the ground of a personal action for fraud f It cannot, but it may Operate on the contract itself to such an extent that a court of equity will rescind the contract ; but only in the case when the error between the parties is of such a nature aud character as to destroy the consent necessary to the validity of the contract. 137, Note 1 Is it fraud in law where a party maJces representations which he Tcnows to he false, and inju/ry ensues, although the motives from which the representations proceeded may not have been bad? It is. 137-138 What wereihe facts in the case of Polhill vs. Walter? See Chapter on Leading Cases. Anson 138 In order to constitute fraud is it necessary that there should be a clear hfiowl^ge that the statement niade is false? It is not; statements which are intended to be acted' upon, if made recklessly and with no reasonable ground of belief, constitute a fraud. 138 ANSON ON CONTRACTS. t)7 What is perhaps the nearest approc^ch to a distinction made between misrepresentation and fraud? The former is an innocent misstatement or non-disclosure of facts, while the latter consists in representations known to be false, or made in such reckless ignorance of the truth or false- hood as to entitle the injured party to an action of deceit. 139 Does an innocent misstatement invalidate a contract? Not unless the contract is of a special class or where it amounts to a condition. 139 When the representation is a part of the contract what name does it receive? It receives the name of a condition or warranty, whose untruth does not affect the formation of the contract, but operates to discharge the injured party from his obligation, or . ^ives him a right of action ex contractu, for loss sustained by the untruth of the statement, which is regarded in the light ■of a promise. 139 Properly speahing, what is a representation? It is a statement or assertion, made by one party to the other, before or at the time of the contract, of some matter or circumstance relating to it. 140 CONDITIOK What nice distinctions have been made in the construction of charter parties ? Thus a statement that a vessel is to sail, or be ready to receive a cargo on or before a given day, has been held to be a condition; while a stipulation that she shall sail with all convenient speed, or within a reasonable time, has been held to be only an agreement. 141 58 QUESTIONS AND ANSWERS. • Condition isMsed in what senses f (1) As meaning a statement that a thing is; and (2) A promise that a thing shall be. In either case the untruth of the one, or breach of the other, discharge the contracts. 142 WAKEANTY. In what two senses is warranty used? (1) Where it means a subsidary promise in the contractj. the breach of which could under no circumstances do more- than give rise to an action for damages ; and (2) A condition, the breach of which might have dis- charged the contract had it not been so far acquiesced in as tO' lose its effect for that purpose, though it may give rise to an^ action for damages. 142 What are warranties used in the narrower sense, or warran- ties ab initio. They are independent subsidiary promises, the breach of which does not discharge the contract, but gives the injured party a right of action for such damages as he has sustained! by the failure of the other to fulfill his promise. 142-143- What is a warranty ex post facto? Where a condition may be broken and the injured party- may not avail himself of his rights to be discharged, but con- tinue to take benefits under the contract, or at any rate to act as though it were still in operation, in which case the condi- tion sinks to the level of a warranty, and the breach of it, being waived as a discharge, can only give a right of action for dam- ages sustained. 143 ANSON ON CONTRACTS. 59' What effect has a false representation made anterior to a- contract. It is held as a condition precedent and discharges the other party from all liability. 144 Upon what does the effect of representation made at the time of entering into a contract depend? ' It depends upon the answer that can be given to three ques- tions . 145 What are the questions? (1) Were the statements in question a part of the terms of the contract? (2) If not, were they made fraudulently ? (3) If neither of these, was the contract in respect of which they were made, one of those called contracts, toberrimaefidei?' If all of these questions are answered in the negative, the rep- resentation goes for nothing. 145 What is the rule in a court of equity f The untruth of a statement made by one of the parties tO' another constitutes a good defence to a suit for specific per- formance of a contract; though no .fraud was alleged, and though the statement was no term in the contract. 145 Whei'e a representfition Relieved to he' true when made has- turned out to he false, what will equity do? Equity will set the contract aside, on the ground that an attempt to enforce or to resist the avoidance of a contract induced by statements which have turned out untrue, i.s a sort of ex 'post facto fraud. J.46 Ahona fide representation not a part of the contract has ieen held to do what? (1) To be ground of defence to a suit on the contract. (2) To be ground for avoiding the contract. (3) To constitute some undelinable relation analagons to- the contract and of like effect, but based on a larger principle.. 146 so QUESTIONS AND ANSWERS. UBEERIM^ FIDEI CONTRACTS. What is a contract uberrimae Jldei? It is one in which one of the parties must, from the natu' e ■of the contract, rely upon statements made by the other, ar d is thus placed at a disadrahtage, as regards his means of acquir- ing knowledge upon the subject. 148 In contracts of Tfiarine insurance what is the insured hound to do? He is bound to give to the underwriter all such information as would be likely to determine his judgment in accepting the risk, and any misrepresentation or concealment of any such matter avoids the policy. 148 TJfon what docs the validity of a contract m -fi,re insur- ance depend? Upon a truthful representation or description of the premises, in England, while in America the innocent non-disclosure of .any material facts vitiates the poli'cy. 148 How do the contracts of life insurance differ from those of marine and fire insurance? Untruth in the representations made to the insurer as to the life insured will not affect the validity of a contract unless they be made fraudulently, or unless their truth be made an express condition of the contract. 149 What were the facts in the case of Wheelton vs. Hardisty? See Chapter on Leading Cases. Anson 149 What is the rule where misrepresentation is made in a ■contract for the sah of land? A misdescription of the premises sold, or of the terms to which they are subject, will vitiate the contract. 150 ANSON ON CONTRACTS. 6L What will equity do in such cases f Equity will endeavor to adjust the rights of the parties. 150- Wimt is the rule where the pivr chase of sluires in stoclc companies is made throicgh the influence of the projector^*- statements? Those who issue a prospectus, holding out to the public the great advantages which will accrue to persons taking stock in the proposed undertaking, are bound to state everything with, strict and scrupulus accuracy. 151 How may all English and American insurance companies he classed? ' As Ubeeeim.^ Fidei Companies. 152 Note 1 Is the contract of suretyship a uberrima} fldei contract?' It is safe to say that it is not. 152 When would such a Contract become so? When the contract of suretyship has been once entered into,, the surety is entitled to be informed of any agreement which alters the relation of creditor and debtor, or any circumstances which might give him the right to avoid the contract. 152 Into what classes have contracts ulerrimce fidei been divided? (1) Cases in which there is a previous and existing fidu- ciary relation between the parties, from which the obligation of perfect good faith arises. (2) Cases in which no such fiduciary' relation exists, but' in- which one of the parties has expressly reposed trust and confidence in the other. (3) Cases where there is no such relation or special confi- dence existing, but the very contract itself is intrinsically fiduciary without regard to the intention of the parties. 152,. Note 2 Do expressions of opinion or comrnendMory expressions- amount to a misrepresentation? They do not. 152-153' 6 i62 QUESTIONS AND ANSWERS. FEAUD. What are the essential features of fraud f Fraud is a false misrepresentation of fact, made with a knowledge of its falsefiood, or in reckless disregard of whether it be true or false, with the intention that it should be acted upon by the complaining party and actually inducing him to act u])on it. 153-154 How does it differ from non-disclosure, such as may vitiate •a contract uherrimw fidei? There must be some active attempt to deceive, either by a statement which is false, or by representation, true as far as it goes, but accompanied by such a suppression of facts as makes it convey a misleading impression. 154; • What is concealment of this kind sometimes called? It is called " active," " agressive,"' or " industrious." 154 Is non-disclos^ire fraud? It is not, because in the case of ordinary contracts dis- closure is not incumbent upon the parties. 154 What were the facts in the case of Ward vs. Hohbs? See Chapter on Leading Cases. Anson 165 Will a mere expression of opinion, which turns out to he unfounded, invalidate a contract? No. 156 What were the facts in the case of Keates vs. Lwd Cado ■ gan-? See Chapter on Leading Cases. Anson 156 , What would he a good illustration of the contrast between opinion and representation? This may be found in the difference between the vendor of property saying it was worth so much, and his saying that he gave so much for it. The first is merely an opinion which the buyer may adopt if he will; the second is an assertion of fact which, if false to the knowledge of the seller, is also fraudulent. 156 ANSON ON CONTRACTS. 63 Does an expression of intention amount to a statement of fact? It does not, neither does a promise. 157. What is the distinction, if any, ietween a promise which the promisor intends to perform and one which he intends to ireakJ' (1) In the first place he represents truly his intention that something shall take place in the future. (2) In the second place he misrepresents his existing intention. 166 What is held where a man huys goods, not intending to pay for them? He is guilty of making a fradulent misrepresentation. 156 Does a misrepresentation of law give rise to an action of deceit? It does not; nor does it even make a contract voidable as against the person making the statement. 156 What redress has a man whose rights have ieen know- ingly concealed or misstated? He may sue the person who made the statement for deceit. 157 What remedy has one where the effect of a deed has been fradulently represented to him? Such representation can be relied upon as a defense in an action upon the deed. 157, also Note 1 How must the representation he made to he a fraud? The representation must be made with knowledge of its false- hood, or in reckless disregard of its truth ; otherwise it gives no right of action to the party injured by it. 157 If a man makes a false representation i/n ignorance of its falsehood, is he liahlefor fraud? No, not unless hfe makes' it with such recklessness of state- ment as would suggest mala fides (bad faith). 158-169 How can a man le made liable for fraud? By proving moral fraud against him; for a statement made 64 QUESTIONa ANJJ ANSWERS. with a hona j^tZe belief in its truth, cannot be treated as fraud' ulent. 158 , • What is the American rule as to an action of deceit? Such an action may be maintained on account of false rep- resentations, when the party by whom they were made either knew them to be false, or made them in utter disregard of whether they were true or false, or believing them to be true without reasonable grounds for such belief and under such circumstances that he was bound to know the truth. 159, Note 1 Where a man chooses to a'ssertwhat he knows or even sus- pects to be false, hoping or believing it will turn out well, what will he not be permitted to do? He will not be permitted to urge upon the injured party the excellence of the motives with which he did hinl the wrong, but must submit to the natural inferences and results which follow upon his conduct. 160 How is the proposition that '■'■the representation should be m,ade with the intention that it sho^ild be acted upon by the injured party" divided? Into two parts; viz: (a) The representation need not be made to the injured party, but (b) It must be made with the intention that he should act upon it. 160 The defendant sold a gun to the father of the plaintiff, for the use of himself and sons, representing that the gun had been made by Nock and was " a good, safe, and- secure gun;" the plaintiff used the gun; it exploded and so injured his hand that amputation became necessary. He sued defendant for false representation. The jury found that the gun was unsafe; that it was not made by Nock. Would the plaintiff be liable, why? Yes ; for inasmuch as the gun was sold to the father to be used by himself and sons, .and the false representation made in order ANSON ON CONTRACTS. 65' to effect the sale, t,nA as there was fraud, and damages, the result of that friud, not from an act remote and conse- quential, but one contemplated by the defendant at the time as one of itg zesulfs, the party guilty of the fraud was respon- sible to. tli They are not, but to any fi-audulent statement which leads the person to whom it waa made to alter hJK position for the worse. What is the effect of fraud upon a contract? It makes it voidable and not void. 163 What remedy has a person who has heen injured hy a fraud arising out of a contract? He may affirm the contract and sue for such damages as the fraud has occasioned. 162 Mai; a person purchasing a cJiattel or goods, concerning which the vendor makes a fraudulent representation, on find- ing out the fraud, retain the chattel or the goods, and still have his action to recover any damages he has sustained hy reason of the fraud? He may. 162 Upon what must the existence of this twofold right depend? Upon the nature of the contract. 163. Can a holder of shares, which he has heen induced to pur- (b) In taking all unfair advantage of another's weakness of mind. (c) In taking a gi'ossly, oppressive, and unfair advantage of another's necessities and distress. 170, Note 1 ANSON ON CONTRACTS. 73 CHAPTER V. LEGALITY OF OBJECT, NATUEE OF ILLEGALITY ON CONTRACT. What two matters of inquiry jjresent themselves in respect •of this subject? (a) The nature and classification of those objects regarded . by law as illegal, and (b) The effect of the presence of such objects upon the con- tracts in which they appear. 171 What is illegality P Illegality is the mode in which the law expresses its disap- proval of certain objects of contract. 171 What are these modes of disapproval f (a) Prohibition by statute. (b) Prohibition by express rules of common la^y^. ,(c) Prohibition through "the policy of the law." 171 What may illegal agreements hef '(a) Agreements in breach of statute. (b) Agreements in breach of the express rules of common law, and ,(c) Agreements contrary to public policy. 171 How may a statute render an agreement illegal? In one of two ways; (a) By express prohibition. (b) By penalty. 172 74 QUESTIONS AND ANSWERS. What two marks may assist us to determine the intention- of the Legislature in passing such statutes? (1) The object of the penalty, and (2) The continuity of the penalty. 172 When does the penalty am,ount to a prohibition? When it is designed to further the objects of public policy in relation to some trade or bxisiness. 172 When is tlie contract not jprohibitedf When it is passed solely to facilitate and secure the collec- tion of revenue, then it is possible that the contract, though, penalized, is not prphibited. 172 Where the statute forbids the carrying on of trade except, under certain conditions, on pain of incurrmg specified penalty once for all, what has been held in regard to the con- tracts made in breach of such conditions? They are not vitiated. 172 When will the contract he void? The contract will be void where the penalty is recurrant upon every breach of the provisions of the statute. What then is the law sv/mmarised on this point/ Where a penalty is inflicted by statute upon the carrying on of a trade or business in a particular manner, we may ?i5e,\\Ta.e prima facie, that contracts made in breach of such statutory provisions are illegal and void. But if it appears that the penalty is imposed not for the benefit of the public in general, but for the security of the revenue, it is ppssible that the contract was only intended to be penalized and not pro- hibited. 172. What were the facts in the case of Brmcn vs. Duncan? See Chapter on Leading Cases. Anson 172 . When is it highly 'probable, if not certain, that the contracts are not intended to be vitiated? When it appears that the penalty is imposed upon the offending trader, and not upon such successive contracts con- tinuously, it is highly probable, if not certain, that the contracts' so made are not intended to be vitiated. 173 ANSON ON CONTRACTS. 75 To wJuit do these statutory prohibitions relate? They relate: (a) To the security of the revenue. (b) To the protection of the public in dealing with certain articles of commerce. (c) To the protection of the public in dealing with certain classes of traders. (d) To the regulation of the conduct of ^ several kinds of business. WAGER. What is a wager? A wager is a promise to pay money 'or transfer property upon the determination of an uncertain event. 173 What is the consideration for such a promise? It is either a present payment or transfer by the other party, or a promise to pay or transfer, upon the event determining- in a particular way. 173-174 Hay the event he uncertain? It may, because it has not happened, and because it is not ascertained to tha knowledge of the wagering parties. 174 • Where does the uncertainty of the ivager reside? It resides in the minds of the parties, and the subject of the wager is rather the accuracy of each man's judgment, than the the determination of a particular event. 174 What hind of a transaction may a wager he? It may be purely a gambling or sporting transaction, or it it may be direct,ed to commercial objects. 174 What is marine insurance? Marine insurance is a wager directed to a commercial object. 174 76 QUESTIONS AND ANSWERS. A has a horse likely to win the Derby, and, therefore, a prospect of a large return for money laid out m rearing and training the horse, in stakes and hets; he agrees with X that, zn consideration of X promising him £Ji,,000 if his horse loses, he, {A) promises X £7,000 if his horse wins. Is this a wager or a. commercial transaction? It is a mere wager, 175, A owns a cargo and has a prospect of large profits on TTMney expended upon a cargo of silk, and he agrees with X, •an underwriter, that in consideration of his {A^s) paying X £200, X promises to pay A £10,000 if his cargo is lost hy certain specified perils. Is this a wager or a commercial transaction? If A has an insurable interest in tlie cargo it is a commer- cial transaction and not a wager. 175 Why is it that the first is a wager, and the second a com- inercial transaction? Not because one is and the other is not a wager, but because a wagering contract is, and the other is not permitted by law, which makes the distinction between the two. Apart from this there is no real difference in the nature of the contracts. 175. 7s life insurance a wager? It is. 175 When and where were wagers enforcihle? ' At Common Law, until the latter part of the last century, wagers were enforcible in the courts. 176 What were the facts in the case of Gilbert vs. /Sykes? See Chapter on Leading Cases. Anson, 176 What statutes were passed as regards sporting wagers ? Any sum exceeding £100 lost in playing at games or pastimes, or in betting on the players, should be irrecoverable, and all forms of security so given for money lost should be void. 176 ANSON ON CONTRACTS. 77 How was the above statute strengthened? JBy enacting that securities of eveiy kind, given for any sum lost in playing at games, or betting on the players, or knowingly advanced for such purposes, should be void ; and that the loser of £10 or more might recover, it back, if paid, by action of debt brought within three months of payment. 177 What resulted from the worhing of this act? Many cases of great hardship resulted, as securities thus avoided were purchased from the holders of them by persons ignorant of their illegal origin. 177 What was the last statute passed in regard to wagers f It provided : " that all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void; and that no spit shall be brought in a Court of Law or Equity for recovering any snra of money or valuable thiiig which shall have been deposited in the hands of any persons to abide the event on which any wager shall have been made. 177 Sow then are all wagers'looTced upon at the present day f They are null, and void, but sequrities given in respect to them fall into two classes. 178 What is the effect of a promissory note given inpayment of a iet made upon a cricket match? It is tainted with illegality at the outset; not only is it void as between the original parties to it, but every subsequent purchaser may be called upon to show that he gave value for the note; and if it can be shown that he knew of the illegal consideration for which it was first given, he may be disen- titled to recover upon it. 178 What is the effect upon a promissory note given in pay- ment of a wager upon the result of a contested election? As bttg'een the parties to it, it is given on no consideration at all, a#S is given in discharge of an obligation which does 7 78 QUESTIONS AND ANSWERS. not exist. The wager is not illegal but simply void, and the value of the note, if endorsed over to a third party, can be recovered. 178 What are the three important subjects with which the Leg- islature has dealt, with regards to laboring contracts entered into for commercial purposes? They are (a) Stock exchange transactions. (b) Marine insurance, and (c) Insurance upon lives, or other events. 178 What are wager contracts on the price of stock sometimes called f " Agreements to pay differences." 178 If A contracts with Xfor the purchase of fifty Russian bonds @ £78 for every £100 bond; the contract to be exe- cuted on the next settling day, and by that date the bonds have risen vn price to SJ80, what 'must X do? X, unless he has bonds on hand, must buy at £80, to sell at £78, and if he has them on hand he is obliged to part with them below their market value 178-179 If the bonds in the above eample have fallen to £,75 in the marhet, before settling day, what will A be obliged to do? He must pay tl^e contract prices, which is in excess of the market value. 179 How are dealings in '^futures " looked upon in the American Courts? They have received the severest censure by all courts of America. 179 Note 1 To make a contract for marine insurance valid, what is necessary? The person effecting the insurance must be interested in the thing insured. 179 May a creditor insure the life of his debtor? He may ; so also may a lessee for lives, insure the lives upon which the continuance of his lease depends. 180 ANSON ON CONTRACTS. 79 Have wager 'policies upon marine risks ever heen sustained in American courts f They have, though some courts have pronounced them void as against " public policy." 180 Note 1 What is the difference between life insurance contracts and other, asfire^and marine contracts of insurance? Policies of insurance against fire and marine risks are contracts to recoupe the loss which parties may sustain from particular causes; while in a life policy there is no such provision ; the policy never refers to the reason for affecting it. 180 What is a life insurance policy? It is a contract, that in consideration of a certain annual payment, the company will pay at a future time, a fixed sum, calculated by them with reference to the value of the pre- miums which are to be paid, in order to purchase the post- poned payment. 180 What would he done with an agreement to commit a crime or an indictable offense? It would be looked upon as invalid, being made on an illegal ■consideration. 181. Is a contract with an alien enemy'validf No, it is illegal and void, because it was a principle at Com- mon Law that trading with an enemy without the King's license Tvas illegal in British s^ubjects. 181 What are the commonest forms of contracts in breach of the rules of common lawf They are agreements to commit a civil wrong; e. g. where a man agrees to beat another; or publish a libel, or commit a fraud upon another. 181 What is the natv/re of an agreement, where a creditor in fraud of the agreement to accept the composition, stipulates for a preference to himself? His stipulation is absolutely void. 181 80 QUESTIONS AND ANSWERS. Illustrate the difference between fraud and illegal/Uy? A is induced to enter into a contract with X, by the fraud of X the contract is voidable, because A's consent is not gen- uine. If A and X make a contract, the object of which is to- defraud M, the contract is void, because A and X have agreed to do what is illegal. 182 Wliat would he the effect of allowing ourselves to con- fuse reality of consent and legality of object? The subject would become very much obscured. 182 How do courts of law hold contracts which have for. their object the sale of publio offices or the assignrhent of the salar- ies of such offices? They hold such contracts to be illegal. 183 Upon what grounds do the courts base their rulings. Upon the grounds that the public has a right to some better test of the capacity of its servants than the fact that they possess the means of purchasing their oiEces. 184 What his the rule as to the assignment of pensions or salaries? Where a pension is granted not exclusively for past services, but a consideration for some continuing duty or service, then, although the amount of it may be influenced by the length of service which the party has already performed, it is against the policy of the law that it should be assignable. 184 How do American courts look upon any contract which in any way tends to interfere with the due administration of public service? They are very jealous of any such contract. 185 Note 1. What are som,e of the subjects of this class upon which there has been legislation. (a) Lobbying contracts, (b) Contracts to procure administrative justice. (c) Contracts to induce corporate action. 184 Note 2 ANSON. ON CONTRACTS. 81 Wluit are lobby vng contraotH? They are agreements to render pervice in securing legislative action through personal influence with public servants, and through other objectionable and sometimes corrupt measures^ 184, Note 2 From what must such contracts he distinguished? From purely professional service to be rendered openly, which contracts are valid while above are void. 184: Note 2 What Imve the courts said as to obligations of corpo7'a- tions? The courts insist that they shall enter into no obligations that may in any way interfere with their serving public con- venience. 184 Note 2 What are considered to be agreements which tend to pervert the course of justice f (a) Stifling prosecutions, and (b) Keference to arbitration. 184.-185 What is the rule in regard to stifling prosecution? No person shall make a trade of felony. If one is aware that a crime has been committed he shall not convert that crime into a source of benefit or profit to himself. 185 Does this rule admit of modification f Yes, where civil and commercial remedies coexist, a com- promise of a prosecution is pernjiissible. 185 What general rule may be laid down regulating such mat- ters. The law will permit a compromise of all offences, though, made the subject of criminal prosecution, for which offences the injured party might sue and recover damages in an action. 185 When will no agreement be valid that is founded on the: consideration of stifling a prosecution for it? "Whenever the offence is of a public nature. 185 82 QUESTIONS AND ANSWERS. JEow ar4 agreements to refer matters in dispute to arbitra- tion regarded f They are regarded as attempts to "oust the jurisdiction of the courts" and are not necessarily enforced. 185 , What were the facts in the case of Scott vs. Avery? See Chapter on Leading Cases. Anson. 186 Whsn is the condition of arbitration good a7id when ille- ■galf "Where the amount of dameges sustained by a breach of the ■contract is to be ascertained by specific arbitration before any right of action arises, the condition is good ; but where all matters in dispute, of whatever sort, are to be referred to arbitrators and to them alone, such a condition is illegal. 185 Why is one legal and the other illegal? The one imposes a condition precedent to a right of action accruing, the other endeavors to prevent any right of action accruing at all. 185 What are some of the arguments which tend to encourage litigation? (a) Maintenance. (b) Champerty; 106 What is mainttenance? It is where a man maintains ,a suit or quarrel to the distur- bance or hinderance of right. 186 What is Champerty? It is ■« here " he who maintains another " is to have by agreement, part of the land, or debt in the suit. 186 To wliat is the law of maintenance confined upon modern constructions? It is confined to cases where a man improperly, and for the purpose of stirring up litigation and strife, encourages others either to bring actions or to make defences which they have no right to make. And in some cases even where the con- ipon- contracts in whioh it exists? It must vary according to the circumstances. It may affect the whole, or only a part of the contract, and the legal and illegal parts may or may not be capable of separation. 189. Where the contract consists of several parts, so that there are several promises hased upon ■'several considerations, loill the fact that one or mors of these considerations is illegal avoid all the promises? It will not, if those promises which were made upon legal considerations are severable from the others. 189. What is the old rule of law laid down in C Che's Reports? "If some of. the Covenants of an Indenture, or of the con- ditions endorsed upon a bond, are against law, and some good 86 QUESTIONS AND ANSWERS. and lawful; that in this case the covenants' or conditions which are against law are void ab initio; and the others stand good." 190 Where does this rule apply? \ It applies whether the illegality exists by Statute or at Com- mon Law. 190 Fearing that the Statutes might he eluded, what rule did the judges lay down? j " The Statute is like a tyrant, where he comes he makes all void, but the Common Law is like a nursing father, makes only void that part where the fault is and preserves the rest," 190 Does this distinction hold good hy modern decisions? No. 190 Whut does the' court hold where you cannot, separate tJie illegal, from the legal? 1 In such cases it has been held that the contract is altogether void; but where they can be separated you can reject the bad and retain the good. 190 Where there is one promise m,ad6 upon several considera- tions, some of which are had and some good, what is the promise held to he? It is wholly void; for it is impossible to say whether the legal or illegal portion most affected the mind of the promisor and induced his promise. 190 Where the di/rect effect of the parties is to do an illegal act, is the contract valid or void? It is void ; and it matters not whether or no they knew that their object was illegal, as "ignorance of the law excuses no one." 191 Has this rule a modification? Yes ; where a contract is to do a thing which cannot be per- formed without a violation of the law, it is void whether the parties knew the law or not. But in order to avoid a contract which can be legally performed, on the ground that there was ANSON ON CONTRACTS. 87 an intention to perform it in an illegal manner, it is necessary to show that there was the wicked intention to break the law. 192 Wha,t is the rule wJiere the object of a contract is innocent in itself, Imt is designed to further an unlawful purpose? Such a contract is void if both parties knew of the illegal purpose at the time the contract was entered into. 192. Is there anything unlawful in the loan of money or the supply of goods? There is not; but if these are known to be intended to sup- ply or further an illegal purpose, neither the money lent, nor the goods supplied can form the subject of an action, and the whole transaction is void. 192 What were the facts in the case of Gannon vs. Bryce? See Chapter on Leading Cases. Anson 192 What were the facts in the case ofPearce vs Brooks? See Chapter on Leading Cases. Anson 193 Can the loan of money designed to satisfy debts arising frorri, past illegal transactions he recovered? Yes, because the illegal act had been carried out before the money was lent. 194 Where one of two parties intends a contract, innocent in itself ,,to further an illegal purpose, and the other enters into the contract in ignorance of his intention, what rmmj the innocent party do? He may, while the contract is still executory, avoid it at his option without giving any reasons. 195 TJpoi% what is the validity of a promise based, which has been gwen to cause the payment of money due or about to bocome due upon an illegal transaction? (a) Whether the transaction is legal or void. (b) Whether or no the promise is made under seal. (o) Where the promise is given in the form of a promissory note the question as to its value in the hands of third .parties arises. 195 88 QUESTIONS AND ANSWERS. 'What is the distinction between illegal and void? In one case the promise is regarded as given upon an illegal consideration; in the other upon no consideration at all. In the one case everything connected with the transaction is "tainted with illegality," in the other, collateral contracts arising out of the avoided transactions, are supported. 196 What is the effect of a contract iesng illegal? Where a contract is illegal, a promise- under seal, given to secure the payment of the money due upon it is void. 196 Would a parol contract, idsed upon some new considera- tion, he void also? It would. 196 What is considered in the case of negotiaile instruments, as to the illegality of contracts? We have to consider not only the effect of the illegality, as between the original parties to the contract, but its effect upon subsequent holders of the contract. 196 Upon proof of the illegality which tainted the instrument in its inception, what is the holder liable to have to show? He -is liable to have to show that he is a hdlder for value; i. e., that he gave consideration for the bill; and even then, if he can be found to have been aware of the illegality, he will be disentitled to recover. 197 What is the effect of a contract being void? Where the consideration is not illegal, but the transaction void, a promise given to pay money due upon such a transac- tion, is based upon no consideration at all. If made under seal it is binding, if by parol it is void. 197 If a contract be entered into which is invalid for want of necessary form, wlmt is the effect of a covenant to pay money due upon a contract of this nature? It is binding. 197 Are promises of payment, made in consideration of past illicit cohabitation, valid? Such promises ^re invalid, if made by parol, because there ANSON ON CONTRACTS. 89 is no consideration at all ; and not upon the ground that the consideration is illegal. 197 Would a bond given upon such past consideration he hind ing? Yes. 197 What is the rule as to negotiable instruments given upon such consideration? They are, as between the original parties to them, void, because they are simple contracts,in which the promise is made in consideration of a transaction,^hich raises no legal obligation and therefore cannot su]5port it, but when the negotiable instrument has passed into the hands of a subsequent holder, such holder is not affected by the fact that between the original parties the promise is voluntary. 197-198 Can a party to an illegal contract under any circum- stances make it a cause of action? No party to such a contract can come into, a court of law and ask to have his illegal objects carried out. 198 Can he set up a cause in which he must necessarily dis- close an illegal purpose, as the ground woric of his claim? No, he cannot, "/ti pari delicto potior est conditio def6n- ■dentis:' 198 What are the exceptional cases in which a man may he relieved of an illegal contract i/nto which he has entered? (a) Cases in which the plaintiff has been induced to ■enter into the contract under the influence of fraud or strong pressure, and (b) Cases in which the contract being unperformed, money paid or goods delivered in furtherance of it, have been held recoverable. 198-199 Where money is paid or goods delivered for an illegal purpose may the person vjho paid the money or delivered the goods recover them? Yes, if he does so before the illegal purpose is carried out, but if he waits till the illegal purpose is carried out, or if he 90 QUESTIONS AND ANSWERS. seeks to enforce the illegal transaction, in neither case can he- maintain an action. 200 , If A gives X £1,000 in consideration of X undertaldng to hJow up Westminster Abbey, of" to write or piihlish, a series of defamatory notices of M, could A recover the money if at the end of a given time Westminster Abhey was unharmed or the notices unwritten, and X had the money at his bankers? No ; hecause it would tend to " enforce the illegal trans- action." 200 If A were to place £1,000 to the account of X with a banker in order that X might buy dynamite to blow up Westminster Abbey or purchase a share im, the management of a newspaper with a view to the defamation of M, and if A changed his mind before the execution of the contract, cdn he recover his money? Yes; he may ^ recover aS much of it as has not been spBnt on the illegal objects contemplated, because it would tend to prevent the illegal object from being carried out. 200 A agreed with X to go bail for hitn for a speci-fied time, if X would deposit the amount of bail in A^s hands, as an in- demnity against his possible default, A undertaking to return the money at the expiration of a specified time,' before the time expired X sued A for the money, on the groxmd that the agreement was illegal, and that he [^X) was entitled to rescind. it. Could'he recover? No; because the illegal purpose had already been effected by the deposit. 201 What were the facts in the case of Taylor vs. Bowers? See Chapter on Leading Cases. Anson, 202. A and B deposited £500 with the defendant to abide the decision of two scientific men as to the shape of the ANSON ON contracts: 91 earth. The decision went against A; hut hcfore the money was paid over to B he reclaimed it. Could he recover? Yes; because he had repudiated the wager before it had left the hands of the stake holder- 202 , ' What has the Court recently held in a contract, where. A employes X. to malce a void or even an illegal coiitract. and X having tnade^t would he subject to loss if he did not ful- fill its terms? A is bound to enable X to fulfill those terms, or indemuifj him for having fulfilled them. 202-203 ^Yhat did the Court hold where a hetting commissioner was employed to make hets, the non-payment of 'which would have caused him to he turned out of his employment? It was held that the employer could not revoke' the employ- ment after the bets were made and lost and before they were paid, but was bound to indemnify the person employed; against payments mWe under his compulsion. 203 Are these conclusions law in this country? They are not; an agent or broker /jannot recover for his ser- vices, losses and disbursements in making and performing the illegal contract of his principal. 203, JSTote 1. What is meant hy the terms '■'■void" '■'■voidable^'' and '■^ unenforceable?''^ (a) V)-^ " void " is meant destitute of legal effect. (b) By "voidable' is meant capable of being afiirmed or rejected at the option of one of the parties. (c) By " unenforceable " is meant " valid," but incapable of proof pending the fulfillment of certain conditions. 204 When nullity of a contract becomes apparent what hap- pens? The whole transaction falls to the ground. 205 A sells goods to X, being led to think that X is Y/ Xsells the goods to M. Is the contract valid? No; it is void on the ground of mistake and M acquires na right to the goods. 205 :92 QUESTIONS AND ANSWERS. A sells goods to X, ieing led ly the fraud of X to think that the market is falling. X resells tJie goods to M, an innocent purchaser for value. What kind ofacontractisit? The contract is valid; M acquires a good title to the goods, and A is left to his remedy against X by the action of deceit. 205 Can a contract which is unenforceable J* set aside at the option of one of the 'parties f No; the obstacles to its enforcement do not touch the' existence of the contract, but only set diflSculties in the way of action being brought or proof given. 206 llow may the defects in such contracts he remedied? Only with the concurrence of the party to be made liable. 206 PAET III. THE OPEEATION OF CONTEACT What two general rules may be laid down in regard to the ■operation of a contract? (a) No one but the parties to a contract can be bound by it, or entitled under it. (b) Under certain circumstances the rights and liabilities created by a contract may pass to a person or persons other than the original parties to it. 207 How may this be done? (1) Either by act of the parties, or (2) By rules of law operating in certain events. 207 If A contracts with B, can their contract impose liabilities or confer rights upon C? It cannot, but there are circumstances under which the law Tvould operate to effect a substitution of parties. 207 ANSON ON CONTRACTS, 93. CHAPTER I. LIMITS OF THE CONTRACTUAL OBLIGATION. What is a contract? A contract is an agreement between two or more persons, by which an, obligation is created, and those persons are bound together thereby. 208 What is one characteristic of the contractual, as opposed to other obligations f The restraint which the contractual obligation imposes on individual freedom is voluntarily created by those who are subject to it, is, in fact, the creature of an agreement. 208 What has a trust in common with a contract? It originates in agreement and aims at creating obligations. 208 Sow does a contract differ from other forms of agreement? In having for its sole and direct object the creation of an obligation ; or in taking its origin in the voluntary act of the parties obliged. 209 Sow does a contractual obligation differ from a trust? A trust and the obligations resulting from it corres- ponds to neither of these characteristics. The agreement which creates a trust has many other objects besides the cre- ation of obligations, which may include conveyance, and the subsequent devolution of property. 209 Does the obligation which exists between trustee and cestui que trust come into existence by the act of the parties? No, it does not. 209 Into what divisions is the first general proposition of the chapter d^ivisible? (a) A man cannot incur liabilities from a contract to which he was not a party, and (b) He cannot acquire rights from a contract to which h& was not a party. 209 .8 94 QUESTIONS AND ANSWERS. A MAS CANNOT INCUR LIABILITIES, ETC. Can A by paying X's -debts unasked, make X his debtor? He cannot; a man cani^ot by his own will pay another man's debts without his consent and thereby convert himself into a creditor. 209 Can A and M hy entering into a contract impose liabili- ties upon X ? No, they cannot. 210 A the defenda/wt employs X, a firm ofbroTcers, to transport a quantity of cocoa from, London to Amsterdam. X agreed with Y to put the whole contract of the transport into his hands. Y did the xoorltand sued a for his expenses and com- mission. Was A liable and why? He was not, because there was no privacy of contract be- tween A and Y, and a contract cannot impose liabilities and confer rights upon a third party. 210 Can a contract irnpose the b'lurden of an obligation upon one who is not a party to it? It cannot. 210 What does the contract do in regard .to this? A contract imposes a duty, upon persons extraneous to the obligation, not to interfere with its due performance. 210 How is the term duty used in this sense? It is used as signifying tliat necessity which rests upon all alike to respect the rights which the law sanctions.. 210 For what is the term obligation reserved? For the special tie which binds together definite and assign- able members of the community. 210 What were the facts in the case of Lumley vs. Gye? See Chapter on Leading Cases, Anson. 211. The relation of master and servant involves what right on the part of the master? It involves the right on the part of the master, to bring an action against any one who entices away his servant. 211 ANSON ON CONTRACTS. 95 A MAN CANNOT ACQUIRE RIGHTS, ETC. If A makes a promise to X, the consideration for which is a bene-fit to be conferred on M by Xdoes such a contract confer a right of action upon M? It does not. 212 If X?s promise amounts to a declaration of trust on behalf of M, can he sue? He can sue, not under the contract, but in virtue of the fiduciary relations which it creates. 212 What were the facts in the case of Price vs. Easton? See Chapter on Leading Cases. Anson. 212 Will a right of action vest in a person who is related by Mood to thepromiseef It will not. 213 What is the established rule at present? No stranger to the consideration can take advantage of a contract, although made for his benefit. 213 ITow have the covets of equity construed this subject? Reqent decisions put the matter upon a plain footing and distinguish the cases in which a party may or may not sue. 214 Does the mere contract between two parties that one of them shall pay money to a third, malce that person a cestui -qui trust? It does not as a rule, there must be some underta-king by one of the two contracting parties to stand to the third party in the relation of trustee to cestui qui trust. 215 What was held where a clause in the contract of partner- ship provided for the payment of an annuity, for Jive years after the termination of the partnership, to the retiring partner or his widov)?. It created a trust in favor of the widow, which freed the .annuity from the claim against her husbands estate. 215 96 QUESTIONS AND ANSWERS. X employed the plaintiff in the formation of the defendant company, and afterwards agreed with the company that it should pay the plaintiff for his services. What did the Court hold in this case? It was held that the agreement gave no right of action to the plaintiff. 215. May VMincorporated companies who wish to avoid hring- ing an action in the name of all their members, enable a third party to sue for them jointly? They cannot, because the proper person to bring an action is the person whose right has been violated. 216 How have statutes qualified this rule? Certain companies and societies are enabled to sue and be sued, in the name of an individual appointed in that behalf. 216. What general rule has the Judicature Act laid down? "Where there are numerous parties 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 an action on behalf of all the parties so interested. 216 How does Anson regard the subject of Agency? As an extension of the limits of contractual obligation by means of representation. ANSON ON CONTRACTS. 97 CHAPTER II. ASSIGNMENT OF CONTRACTS. ASSIGNMENT BY ACT OF THE PARTIES. Can a man he compelled to accept the performance of a contract from one who was not originally a party to it? He cannot, for he is entitled to know to whom he is to look for the satisfaction of his rights tinder the contract. 218 Sow may a liability he assigned? It may be assigned with the consent of the party eirtitled. 219 Where this is done is it in effect really an assignment? No, it is in effect the recision, by agreement, qf one contract and the substitution of a new one in which the saine acts are to be performed by different parties. 219 If A undertakes to do work for 2^ wldch needs no special skill, and it does not appear that A has heen selected with reference to any personal qualification, can X complain if A gets the work done hy an equally competent person? He cannot, yet A does not cease to be liable if the woi'k is poorly done. 219. Where an interest in land is transferred what liabilities pass with if ? Those liabilities attaching to the enjoyment of the interest pass with it. 219. What is a chose in action? A chA)se in action is a right to personal things of which the owner has not the ]iossession, but merely a right of action for their posession. II El. Comm. 389. At Common Law apart from the customs of the Law Mer-. chant, how far were choses in action assignable? A chose in action could not be assigned so as to enable the assignee to sue upon it in his own name. 219-220. 98 QUESTIONS AND AISTSWERS. Wlmt is the only mode, strictly ^speaking, hj lohich the rights under a contract can really de transferred .^ It is not by assignment at all, but by means of a substituted agreement. 220 ' A oyjes M £100, and M owes X £, 100, if it is agreed be- tween all three that A shall pay X instead of M, wliat effect has it upon Af It thus terminates A's legal relations witb either party; be- cause in such a case the consideration of A's promise is the discharge by M; and for M's discharge of A, the extinguish- ment of his debt to X; and for X's promise, the substitution of A's liability for that of M. 220. NOVATION. What is Novation? It is the substitution of a ne'v agreement for an old one, whereby the original indebtedness is extinguished. 220, Note 1. When is the contract of negation established? Not at all unless all the parties affected by it consent to the agreement, and it must also appear that the original indebted- ness was extinguished. 220 ISote 1. Does the Statute of Frauds ^pply to novation? It does not. 220 Note 1. • M owed money to the plaintiff who required security for the debt. M being owed money by the defendant, gave to the plaintiff a paper authorizing the defendant to pay the money to the plaintiff. Defendant '"acknowledged" this paper in writing. Did the plaintiff- have a right of action? The court held that such an acknowledgment gave no right of action; because there was no agreement to discharge the defendant, and hence no consideration for the defendants promise. 220 . ANSON ON CONTRACTS. 99 Will eq^dtt/ permit the assignment of a chose in action so ^ ,>^ 101 (b) Such fights of action for torts as Survive the per- sonal representatives may be assigned. (c) The right to compensation for executed contracts of personal service may be assigned, but the rights and duty to render such service cannot. (d) A creditor can assign a part of his claim, with the debtor's assent, who has the right to pay the claim as a whole. The whole claim may be assigned without his consent. 224 Note 1 What form of assignment is required in the American -courts? No particular form is required. A parol assignment good in equity is generally good under the statutes. The form may also be conditional and by way of security. 224, Note 1 What notice of assignment is required in the American courts? As between assignor and assignee no notice is necessary, but the assignee should give the debtor, trustee or holder of the fund prompt notice of the assignment. 224, Note 1 Suhjeot to wliat equities does the assignee take the chose in action? i Subject to all the equities existing in favor of the debtor at the time of the assignment. 224, Note 1 > Wltat legal rights and remedies does the Judicature Act of 1S73 give to ihe assignee of any debt or legal chose in uction? ' It gives him all le^l rights and remedies, but (a) The assignee takes subject to equities. (b) The assignment must be absolute. (c) The assignment must be in writing by the assignor. (d) Express notice must be given jn writing to the party to be charged, and the title of the assignee dates from such notice. 224-2^5 How does the assignment operate? It operates without the consent of the party liable. 225 102 QUESTIONS AND ANSWERS. What are certain choses in action which are assignable iy statutes f • (a) Policies of life insurance. (b) Policies of marine insurance. (c) Shares in stock companies, and (d) Mortgage debentures issued by companies under the Mortgage Debenture Act are assignable. 225 What is the essential features of negotiability? (1) The written promise gives a right of action to the the holder of the document for the time being, though he and his holding may be alike unknown to the promisor. (2) The holder is not prejudiced by defects in the title of his assignor; as he does not hold subject to such defences as. would be good against' his assignor 226. What conclusions are dravjn, from the above ride? (a) Notice need not be given to the party liable, and (b) The assignors title is immaterial. 226 What contracts are made - negotiable by the Custom of Merchants? Such as a bill of exchange, foreign and colonial bonds expressed to be transferrable by delivery, and script certificates which entitle the bearer to become a holder of such bonds or shares in a company. 226 A BILL OF EXCHANGE. What contracts are made negotiable by statute? Promissory Notes and East India bonds. 226. What. is a bill of exchange? A bill of exchange is an unconditional written order ad- dressed by M to X driecting X to pay a sum of money to a specified person or bearer. 227 if ANSON ON CONTRACTS 103 Usually who is this specified person? Usually a third person, but M may draw a bill upon X in favor of himself, or even in favor of X. 227 How is a hill of exchange drawn? M directs X to pay a sum of money to A or order, or to A or bearer. 227 When M draws upon X what are loth called? M is called the drav^erof the bill, and X the drawee., 227 M hy drawing the hill promises to do what? He promises to pay the sum specified, to A or any subse- quent holder, if X does not accept the bill, or having accepted it, fails to pay. 227 When X assents to pay the sum specified what does he he- oorm? He is said to become the acceptor. 227 How must such assent he specified or expressed? In writing on the bill "signed by the acceptor," or his sim- ple signature. 227 What is an acceptance? It is an unconditional promise to pay the sum named when due. 227 What is the difference hetween a hill payahle to hearer and to order of a certain person? (a) If the bill is payable to A or bearer, it ,may be trans- ferred by mere delivery from one holder to another. (b) If payable to the order of A, it must be transferred only by indorsement. 227 WJiat is an indorsement? It is an order written upon the bill and signed by A, the holder, in favor of D who recei^'es it. 227 What is the effect of an indorsement? It assigns to D the right to demand acceptance or payment of the bill from X when due, and in the event of default by 104 QUESTIONS AND ANSWERS. X, to demand it of M, the original drawer, or of A, against whom he has a concui rent remedy as being to all intents a new drawer of the bill. 227 What is a special indorsement? If the indorsement is simply to D, or to D or order, the bill may be assigned by D to whomsoever he will in the same manner as it was assigned to him. 227 What is a blank iudorsementf If tHe indorsement be the mere signature of A, it is indorsed in blank, and the bill then becomes ,payable to bearer, i. e. assignable by delivery. A has given his order addressed to no one in particular; the bill is in fact indorsed over to anyone who may become possessed of it. 227 2:^8 A PROMISSORY NOTE. Wlmt is a promissory note? It is a promise in writing made by X to A that he will pay a certain sum at a specified time or on demand, to A or order, or to A or bearer. 228 ■ Wliat is the difference between negotiability and assign- ability f ♦ The assignee does not need to give notice; consideration is presumed, and the assignee may have a better title than the assignor. 228 , Is an instrumsnt under seal negotiable? It is not. 229 ANSON ON CONTRACTS. 105 BILL OF LADING. What is a bill of lading sometimes called? "A document of title" and "a symbol of -property." 230 What is a hill of lading? It is a receipt by the Master of a ship for goods bailed to liim for delivery to X or his assignee. HoLO many copies are made of this Mil oy the Master? Three copies are made, of which, one is kept by the con- . signor of the goods, one by the Master of the ship, and one is forwarded to X the consignee. 230 Of what value is this Mil of lading to the consignee? LTpon receipt of it, he acquires a property in the goods, which can only be defeated by the exercise of the vendor's equitable right of stoppage in transitu. 230 What rights does the assignment of a hill of lading hy in- dorsement hy the consignee to a holder for value give that holder? It gives him a better right than the consignee himself pos- sessed. He has a title to the goods which overrides the ven- dor's right of stoppage in transitu, and gives him a claim to them in spite of the insolvency of the consignee and the loss of the price of his goods by the consignor. 230 What is the right of stoppage in transitu? Stoppage in transitu is the right of the unpaid vendor, upon learning of the insolvency of the buyer, to retake the goods before they reach the buyer's possession. 231, Note A. In what does the negotiability of a bill of lading differ from other negotiable notes and instnoments? Its assignment transfers rights in rem, rights to specific goods, and these to a certain extent are wider than those pos- sessed by the assignor; while negotiable investments pnlv confer rights in fersouam. 231 106 QUESTIONS AND ANSWERS. How does a bill of lading differ from commercial papar? "While it is transferable by delivery, like commercial paper, it is unlike it in this: that the assignee cannot acquire a better title to the property thus symbolically delivered than his assignor had at the time of assignment. 231, Note 1. ASSIGNMENT OF CONTRACTUAL llIGHTS, ETC. Does Tnarriage transfer the rights and liabilities of the wife to the hiisbnndf Prior to 1882 it operated conditionally, since then it hai> little effect at all. 232 To what extent does the executor or adminittiatcro^ a de- ceased person, or the assignee of a bankrupt, represent the original contracting party ? Merely to the extent of the original contracting party's estate and no more. 232 ■ Do the executors or administrators to whom, the contract is assigned, take any benefit by it? They are neither gainers nor losers personally by the enforce- ment of claims against them. 232 How are covenants affecting leaseholds said to run at Common Law? They are said " to run with the land and not with the rever- sion;, i. e. they pass upon an asignment of the lease, but not upon an assignment of the reversion. 232 If the lessee assigned his lease, how would it effect the man to whom it was assigned? The man to whom he assigned it would be bound to the landlord by the same liabilities and entitled to the same rights as his assignor. 232 ANSON ON CONTRACTS. 107 What become of covenants in a lease whick 'Houch and concern the thing demised T'' They pass to the assignee of tlie lessee whether or not they are expressed to have been made with the lessee "and his assigns." 232 What are examples of such covenants P Such as covenants to repair, or to leave in good repair, or to deal with the law in any specified manner. 232 What hecome of covenants in a l".ase lohioh touch and con- cern the thing demised, but relate to something not in exist- ence at the time of the lease? They are said to pass to the assigns only if named. 233 Does the assignee of the lessee acquire benefit or liability from merely personal or collateral covenants made betiueen his assignor and his landlord? He does not in any case of that kind. 233 ^, the lessee, covenanted to use his premises as a public house. A, the lessor, covenanted not to build or heep any house for the sale of beer or spirits within half a mile of the demised premises. X assigned his lease to M: Does 'A^s covenant pass ta M? The court held that it did not pass to M. 233 At Common Laio do covenants effecting leasehold interests run with the land? They do not. 2.33 How has the Common Law rule been modified? By the Statute of 32 Henry YIII C. 34, by which act the assignee of the reversion is enabled to take the benefits, and also incur the liabilities, of covenants entered into with the assignor. 233 To what do the rules as to the connection of covenants apply? They apply to such as run with the reversion equally with those that run with the land. 233 1U8 QUESTIONS AND ANSWERS. To vihat hind of leases only does the act apply? Only to leases under seal; but in cases of leases from year to year, payment of rent and the acceptance of it, is held to be evidence from which a jury may infer "a consent to go on, on the same terms as before." 2S3 Whatheoome of covenants entered into at Common Law with the owner of the land? All promises under seal made to the owner of land, and for his benefit, pass to his assignees, provided they touch and con- cern the land conveyed and are not merely personal. 233-234 X. the vender of land, covenants with A, the purchaser, that he h IS a good title and right to convey the land, would the hentfit of such a covenant pass to A and his assignees? It would, for reasons given above. 234 At Common Law, do covenants entered into by the ovmsr of the land, which restrict his enjoyment of the land, hind his assignees? They do not, unless he thereby creates certain well known interests, such as easemnets and prohts, recognized by law. 334 AYliat were the facts in the case of Ive-ppell vs. Bailey? See Chapter on Leading Cases. Anson 234 A sells his land to X and covenants that he. A, heing pos' sessed of adjoining lands, tvill never use it otherwise than in a particular way: A.sellshis land to M,with notice of the covenant. In Equity is M's enjoyment af the land litnited hy the terms of the covenant? It is, as a Court of Equity would enforce the covenant against M. 234 235 What is the only effect which Qnarriage may produces hy way of assignment of rights or liabilities? The only ejffect is, that if the separate estate of the wife be insuihcient to satisfy her ante-nuptial contracts, the husband is liable to the extent of all the property which he shall have acquired or become entitled to through his wife. 235 ANSON ON CONTRACTS. 10i> What is the general rule in American States? There is no assignment of contractual obligations iipon mar- riage in tlie States generally ; for the husband does not acquire any property through his wife, the common Jaw rule having been abrogated by the Statutes. 235, Note 2 What interest does death pass to the executors and ad- ministrators of a deceased estate? Death pa.sses to them all of the personal estate, all rights of action which would affect the personal estate, and all liabilitie& which lare chargeable upon it. 235 What is the differenceietween covenants which are atta'^hed to leasehold estates and those affecting freehold estates? Covenants attached to leasehold estates, pass, as to benefit and liability, with the personalty to the executor or administra- tor; while covenants affecting freeholds, as covenants for title in a conveyance of freehold property, pass to the heir or devisee of the realty. 235 Can the further J) erj or mane e of such contracts demanding personal service and shill, be required of the representatives of the deceased? It cannot; nor can the representatives insist upon offering such performance. 235 ^ What hecomes of contracts of personal service when either one of the parties to them dies? The contracts expire with either of the parties to them. 235 Does a breach of contract which involves a purely personal loss confer a right of action ujyon executors? It does not. 236 What were the facts in the case of Chamberlain vs_ Williamson? See Chapter on Leading Cases. Anson 236 J^^or what purpose is the trustee of a hankrupit appointed ? He is appointed for the purpose of getting in and dividing the property for the benefit of the creditors. 236 9 110 QUESTIONS AND ANSWERS. ■ W/iat does the Bankruptcy Act of 1883 provide? It provides that where any part of the property of a bank- rupt consists of things in action, such things sh'ail be deemed to have been duly assigned to the trustee. 236 ' ^Vhat is the duty of the trustee? The duty of the trustee is not merely to represent the bank- rupt, but to represent him with special reference to the inter- ests of his creditors. 236 In this capacity what is the trustee able to do? \\& is able to disclaim, and so discharge such executory con- tracts as he thinks will not be beneficial to the estate. 236 PAET IV. I THE INTERPRETATION OF CONTRACTS. CHAPTER I. RULES RELATING TO EVIDENCE. Into vihat two rules does the interpretation of contracts divide itself? Into (a) Rules relating to Evidence, and (b) Rules relating to Construction. 237 What must he considered under the first rule? The sourpes to which \ive may go for the purpose of ascer- taining the expression by the parties of their common inten- tion. 23T What must he considered under the second rule? The rules which exist for construing that intention from ex- pressions ascertained to have been used. 23" ANSON ON CONTRACTS. Ill If a dispute should arise as to the terms of a contract made hy loord of mouth, what is necessary in the first instance to he ascertained? We must ascertain what was said and the circumstances under which the supposed contract was formed. 238 What kind of questions would these he? , They would be questions of fact to be determined by the jury. 238 When a man is proved to have made a contract hy word of ■mouth upon certain terms^what will he not bealloioedto do? lie cannot be heard to alleoje that he did not mean what he said; and the same rule applies to contracts made in writing. 238 Where men have put into writing any portion' of their terms of agreement, can they alter hy parol evidence that which they have written? They cannot. 238 When the writing purports to he the whole of the agree- ment between the parties, how is it treated? It can neither be added to, nor varied by parol evidence. 238 Why need oral contracts not he discussed? Because the proof of a contract made by word of mouth is a part of the general law of evidence. 238 Admissible evidence extrinsic to s%ich coritracts falls under what three heads? (a) Proof of the existence of the document. (b) Proof of the fact of agreement. (c) Proof of the terms of the contract. 239 What then are we obliged to cowsider under this hsad? (a) Evidence as to the existence of a contract. (b) Evidence that the document is a contract. (c) Evidence as to its terras. 239 112 QUESTIONS AND ANSWERS, What is the differduce in evidence between a formal and a simple contract? In the first, the instrnment is the contract; in the second* the writing is only evidence of the contract. 239 What are the parties supposed to put on paper ? They put on paper what is to bind thera, and so make the written document conclusive evijience against them. 24:0 How is a contract under seal proved? Ey evidence of the sealing and delivery. 240 , PROOF OF DOCQMENT. Where a contract under seal was- attested was it necessary to call one of the attesting witnesses to prove the contract? . Formerly, this was necessary, but the Common Law Pro- cedure Act of 1S54, enacted that this should no longer be required, save in those exceptional cases, in which attestation is necessary to the validity of a deed. 240 What are instances of instricments to which attestation is necessary ? ' ' Such as a warrant of Attorney and a Cognovit. 240 What is necessary in proving a simple contract? Parol evidence is always necessary to show that the party sued is the party making the contract, and is bound by it. 240 What is necessary where writing constitutes only, a part of the contract? Parol or oral evidence must supplement the writing. 240 A B, in Oxford, writes to X, in London, "I will give £50- for your horse; if you accept, send it by next train to Oxford. "^ Signed, A B. What is necessary to prove the conclusion of this contract? The dispatch of the horse would need to be proved. 240 ANSON ON CONTRACTS. 113 When the attesting witness is dead, or incapaile of testi- fying, or, out of the jurisdiction of the court, how uiay the execution of the deed he proved? I5y the hand-writing of such witnesses. 240 Note 2 What is the tendency of modern decisions on this point?' It is to hold that proof of the hand-writing of the party is sufficient when the witness cannot • be produced, unless; the instrument is one which the law requires to be attested by- witnesses. 240 Note 2 Where a contract consists of several documents which need oral evidence to connect them, or show their connection, may such evidence he given? ■ It may. 241 What exceptions must he tahen to this rule? We must except contracts of which the Statute of Frauds- requires a written memorandum. 241 This is an illustration of what rule? That where the Statute of Frauds requires written evidence of a contract, it requires sach evidence as. to the whole of the contract. 241. EVIDENCE AS TO FACT OF AGEEEMENT. When is extrinsic evidence admissahle? , To show that the document is not in fact a valid agree- ment. 241 What may he shown to have made the agreement unreal? It may be shown that (a) Incapacity of one of the parties, (b) "Want of genuine consent, or (c) Illegality of the object made the agreement of the par- ties unreal, or 114 QUESTIONS AND ANSWJCRS. (d) Such as the law forbids to be carried into effect. 24 1 - 242 What may he shown in, the case of a simple contract f It may be shown that where the promise only, appearsin writing, that there was no consideration for that promise. 242 Is extrinsic evidence admissible to alter the pitrpori of a ■deed? It is not, but it is admissible to show that it was made under such conditions as to preclude the reality of consent. 242 May far ol or documentary evidence, extrinsic to the sealed instrument, he admitted to prove tJmt a deed is an escrow? Yes, it may. 242 What did the court hold in the case of Pym vs Camphellf It held that the evidence was admissible, not to vary a writ- ten contract, but to show that there had never been a contract -at all. 243 What is the distinction in point of law as to the admission of evidence to vary the terms of an agreement in writing? Evidence to vary the terms of an agreement in writing is not admissible, but evidence to show that there is not an agreement at all, is admissible. 243 EVIDENCE AS TO THE TERMS OF A'CONTEACT. What is the general rule in regard to the admissihility of extrinsic evidence as to the terms of the contract? According to the General Law of England, the written record of a contract must not be varied, or added to by verbal ■evidence of what was the intention of the parties. 243-244 What exceptions do we find to this rule? (a) In cases where terms are proved supplementary, or col- lateral to so much of the agreement as is in writing. ANSON ON CONTRACTS. 115 (b) In cases where explanation of the terms in the contract is required. (c) In the introduction of usages in the contract. (d) In the application by equity of its peculiar remedies in the case of mistake. 244. If the parties to the contract have not put all its terms into writing, for what pur2J0se may jiarol evidence he admitted? Parol evidence of tlie supplementary terms is admissible, not to vary but to complete the written contract. 244. May parol evidence he introduced to show that a contract or deed has he&n wrongfully datt-d? It can, because the date is not a term of the contract. 244. "Where a farmer executed a lease upon the promise of the lessor that the game should he hilled doivn, upon the land, and no reference to it appeared in the terms of the lease, what did the court hold in, aio action for damages done to his crops hy the hreach of a verbal promise? The court held that he was entitled to compensation for damages done to his crops by a breach of such a verbal prom- ise. 245. TJpon what grounds did, the court make this ruling? Upon the grounds that evidence may be given of a verbal agreement collateral to the'contract proved, subjecting it to a term unexpressed in its contents, provided such term is not contrary to the tenor of the written agreement. 244-5. The explanation of terms amounts to what? The explanation of terras may merely amount to evidence of the identity of parties to the contract, or it may be a descrip- tion of the subject matter of the contract. 245. What is an example of the identity to parties of a contract? As where two persons have the same name, or where an agent has contracted in his own name, or in behalf of a princi- pal whose name or existence he does not disclose. 245. A agreed to huy of X, certain wool which was described as " your ■wool " and the rigid of X to bring evidence as to the 116 QUESTIONS AND ANSWERS. quality and quantity of- the wool was disputed. What did the court hold? The court held that such evidence was admissible to identify the subject matter of the contract, and to show what " your wool " really was. Because the judge, who has to construe the written document, cannot have judicial knowledge of the- subject matter; and evidence has invariably been allowed to identify it. 24:5-6. To what certain phrases is evidence admissible to show their- application to the subject matter of the contract so as to ascer- the intention of the parties? To such phrases as: (a) Where a vessel is warranted to be " sea-worthy." (b) A house promised to kept in a "tenantable " repair, or (c) A thing undertaken to be done in a " reasonable" man- ner. 246. What are such cases as those just described called? They are called cases of latent ambiguity, and are sometimes distinguished from patent ambiguities where words are omitted or contradict one another; in which cases explanatory evidence is not admissible. 247-8 Where a bill of exchange was drawn for " SJ200" hut the Hgures at the top were " ^^," was evidence admissible to shoiix that the bill was intended to be drawn for a larger amount? It was not. 248. For what is evidence of usage admissible? Such evidence is adniissible because the usage of a trade or locality may add a term to a contract or may sometimes attach a special and non-natural meaning to one of its terms. 248. Upon what presumption does the principle of such usage rest? , I Upon the presumption that in such transactions the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but to contract with reference to those known usages, 248. 'ANSON ON C6ntRACTS, 117 Upon wliat principle is evidence of usage to explain ;phrases in contracts, whether commercial, agricultural or ■otherwise suhject toTcnown customs, admissihlef The principle upon which such explanation is admitted, has been stated to be, " That words perfectly unambiguous in their ordinary meaning are used by the contractors in a different sense from that. In such cases the evidence neither adds to, •qualifies, nor contradicts the existing contract; it only ascer- i tains it by expounding the language." 248» In commercial contracts in the case of charter parties, %n which the days allowed for unloading the ship " are to com- mence running ' on arrival ' at the ship'' s port of discharge, ^^ lohat evidence may he given f Such evidence as will show what is commonly understood to be the port. 249 By custom " arrival " is understood to mean what? It is understood to mean the arriving at one particular spot in the port. 249 What were thefq,cts in the case of Smith vs. Wilson? See Chapter on Leading Cases. Anson 249 What is closely connected with the principle that usage may explain phrases? The admissibility of skilled evidence to explain terms of art or technical phrases when used in documents. 249 The intention of the contracting parties cannot he shown hy evidence of a usage which is at variance with what? (a) With the express terms of contract. (b) "When repugnant to statutory law.. (c) When against public policy. (d) When unreasonable and oppressive. 249, Note 1 In order to effect a contract what are the conditions under which usages must operate? (a) They must be consistent with rules of law. (b) A universal usage cannot be set up agamst the gen- eral law. 118 QUESTIONS AND ANSWERS. (c) It must also be consistent with the terms of the con- tract, for the parties may exclude the usage if they think tit and frame their contract so as to be repugnant to its opera- tion. 249. What is the differencein the admission of extrinsic evidence in the application of equitalle remedies? In the application of equitable remedies, the granting or refusing of specific performance, the rectification of docu- ments or their cancellation, extrinsic evidence is more fully admitted. 249 When onlij are these corrective powers used? They are not used unless the parties can be placed in the same condition as if the contract had not been made. 250-251 CHAPTER II, EULES RELATING TO CONSTRUCTIOlSr. GENERAL RULES. What is thefirstrule as to construction f "Words are to be understood in their plain and literal mean- ing. 252 To what extent is this rule followed f This rule is followed, even though its consequences may not have been in. the contemplation of the parties, subject always to admissible evidence being adduced of a usage varying the usual meaning of the words, and subject to inference of inten- tion gathered from the whole document. 352 What is the second rule of construction? An agreement ought to receive that construction which will best effectuate the intention of the parties to be collected from the whole document. 252 ANSON ON CONTRACTS. 119 To which of these rules is the greater regard to he had? Greater regard is to be had to the clear intention of the •parties than to any particular words which they may have used in the expression of their intent. 352 To what conclusion do these rules substantially come? Men will be taken to mean precisely what they say, unless, from the whole tenor of the instrument, a definite meaning can be collected which gives a broader interpretation to specific words than their literal meaning would bear. 252 What will the courts do for the parties in such cases? The courts will not make an agreement for the parties, but will ascertain what their agreement was, if not by general pur- port,^heij by the literal meaning of its words. 252-3 What are some of the suhsidiaryrules affecting the inten- tion of the parties so far as it can he discerned? (a) Courts, both of law and of equity, will correct obvious mistakes in writing and grammar. (b) They will sustain the meaning of general words by more specific and particular descriptions of the sabject matter to wliich they are to apply. (c) They assign to words susceptible of two meanings, that whicli will make the instrument valid. (d) They will construe words most strongly against the party who used them, 253 Upon what principle is the last hased? Upon the principle that a man is responsible for ambig- uities in his own expression, and has no right to induce .another to contract with him on the supposition that his words mean one thing while he hopes that the court will adopt a construc- tion by which they would mean another thing more to his advantage. 253 120 > 4UESTIONS AND ANSWERS. KULES OF LAW AND EQUITY AS TO TIME AND PENALTIES. On what two-povnts of construction did law am,d equity , once differ f They once differed as to time and penalties, but do so no longer. At Common Law, what was the essence of the contract? Time. 254 At Common Law, if A made a promise to X, wherry A undertook to do a certain thing hy a certain day, in consider- ation that X would thereupon do something for him/ if by the da,te named in the contract, A's promise was unfuilfilled, vjhat would Xdo? ' X, would be discharged from his promise, because time was the essence of the contract. 253 What would Equity do in such a case? Equity would look further into the intention of the parties, so as to ascertain whether, in fact, the performance of the con- tract was meant to depend on A's promise being fulfilled to the day, or whether a day was named -in order to secure per- formance within a reasonable time. 254 If the latter reason wa,s found to he the intention of the parties, what would Equity do? > Equity would not refuse to A the enforcement on X's prom- ise if his own was performed within a reasonable time. 254 May the parties m,ake time the essence of the contract by express agreement? , Such a course is left open to the parties. 254 What is the general rule in the United States? The rule is, that while equity will not regard the time speci- fied as of the essence of the contract, yet the parties, by express agreement, may make it so, and, in case they do, equity will not relieve the party in default. 254, Note 1 ANSON ON CONTRACTS. 121 By what' act has the distinction between the courts of Jmw and Equity been swept away? By the Judicature Act. 254 What was this Act in substance? It enacts that stipulations in contracts as to time, or other- wise, which Would not, before the passing of this Act, hare been deenaed to be, or have become of the essence of such con- tracts in a court of Equity, shall receive in all courts the same ■construction and effect as they would have heretofore received in equity. 254 Where the parties afix a penalty to the non-perfonnance of his promise by one or each of them, they may have intended -to effect either of what two purposes? (a) Either to assess the damages at which they rate the non- performance of the promise, or (b) To secure its performance by the imposition of a pen- ;alty in excess of the actual loss likely to be sustained. 254 If the former was their intention, how could the sum be recovered? If the latter? ' (a) If the former was their intention, the sum named is recoverable by " liquidated damages." (b) If the latter, the amount recoverable is limited to the loss actually sustained in spite of the sum undertaken to be paid by the defaulter. 254-255 What are '■^liquidated datnages?^^ Unliquidated darn- ■ages? (a) Liquidated damages are the sum agreed upon in the •contract by the parties themselves, as the damages for a breach ■of it. (b) Unliquidated damages are such as are left to be assessed by a jury according to the Joss sustained. 255, Eote B What were the facts in the case of Kemble vs Farren? See Chapter on Leading Cases. Anson 255 123 QUESTIONS AND ANSWERS. What rules may be laid down for determining this ques- tion of construction? ' (a) If the contract is "for matter for certain value and a sum is fixed to be paid on a breach of it, which is in excess of that value, then the sum fixed is a penalty and not " liqui- dated damages." (b) If the contract is for a matter of uncertain value and a sum is fixed to be paid on a breach of it, then the sum is re- coverable as " liquidated damages." (c) If a debt is to be paid by installments^ it is no penalty to provide that on default of any one payment the entire bal- ance of unpaid installments is to fall due. (d) If a contract, contains a number of terms, some of which are of a certain value and some not, and the penalty is applied to a breach of any one of them, it is not recoverable as "liquidated damages," however strongly the parties may have expressed their intention that it shall be so. 255 PAKT IV. DISCHAKGE OF CONTRACT. What are the 'modes in which a contract may he discharged l (a) Agreement. (b) Performance. (c) Breach. (d) Impossibility and (e) Operation of law. 257 ANSON ON CONTRACTS. 12S CHAPTER I. DISCHAEGE BY AGEEEMENT. "WAIYEE. In what three ways may a contract he discharged hg agree- ment? (1) Waiver. (2) Substituted agreement and (3) Conditions subsequent. 258 When a contract is discha/rged 2>y express agreem,ent that it shall stand no longer, what is the process called? Tbis process is called a waiver, cancellation, or recision of the contract. 258 An agreement of this rmture is subject to what rule? Tbe rule wbicb governs all simple contracts witb regard to consideration. 258 The rule that a sim.ple contract may, hefore hreach, he waived or discharged, without a deed and without consider- ation, must he taken to mean what? It must be taken to mean that where the contract is execu- tory, no further consideration is needed for an agreement to rescind, than the discharge of each party by the other from his liabilities under the contract. 258 Can a contract, executed upon one side, he discharged ': before hreach without consideration? It cannot. 258 What were the facts in the case of Foster vs. Dawher? See Chapter on Leading Oases. Anson 260 124 QUESTIONS AND ANSWERS. SUBSTITUTED CONTEACT. What is the difference between a substituted contract ■and a waiver? The difference lies in the fact that a waiver is a total obliteration of a contract, while the substituted contract is the ■substitution of a new bond between the parties in place of the old one. 261 ' • How does the substituted agreement operate as a discharge? In this way: If it does not in terms express an intention "that the original contract should be waived, it indicates such -an intention, by the introduction of new terms or new parties. 261. What forms the consideration on each side of the new con- tract f The change of rights and liabilities and the consequent extinction of those which before existed. 261 Does a mere postponement of performance, for the con- venience of one of the parties , discharge the contract? It does not. 261 , When is a contract discharged by the alteration of its ■terms? (a) When what is to be done is so far altered as to be inconsistent with it and to amount to a new contract, or (b) When a new party is substituted for a previous one by :an agreement of all three. If A has entered into a contract with XandM,ci/ndX ■and M agree between themselves that M shall retire frotn the vhich M was not a party. 263 What were the facts in the case of Hart vs. Alexander f See Chapter on Leading Oases. Anson, 263. PRO VISIONS FOR DISCHARGE. What -may a contract contain xoithin it/feJf? It may contain, under certain circumstances, the elements of its own discharge in the form of express provisions. 264 What may these circumstances be? They may be: (a) The non-fulfillment of a specified term of the contract (b) The occurrence of a particular event. (c) The exercise of by one of the parties of an option to determine the contract. 264 What is the difference between the nonfulfillment of a ion agreed terms, what may the other party dof He may treat the contract as being at an end. 292 What may the seller do if a nori payment of one install- ment of goods he accompanied hy circumstances which give reasonahle grounds for thinking that the hv,yer will not he ahle to pay for the rest of them? He may take advantage of the one omission and repudiate the contract. 292 What agreement is always left dpen to the parties in a contract f i The agreement that the entire performance of a considera- tion, in its nature divisible, shall be a condition precedent to the right of a fulfillment by the other party of his promise. 292 In such a case what can he ohtained upon the contract oi upon a quantum meruit for what has heen performed? ISTothing at all. 292 When will apromise be regarded as suhsidiaryf It may be said, generally speaking, that when a promise iw to be performed in the course of the performance of the con- tract and after some of the consideration, of which it forms » part, has been given, it wilU be regarded as a subsidiary, and its breach will not be considered a discharge unless there be words expressing that it is a condition precedent, or unless the performance of the thing promised be plainly essential to the contract. 294. Where a person has received a part of the consideradon for which he entered into the agreement, will the court per- m/it him to enjoy that part without either payment or doing anything for it. It will not, he must perform the agreement on his part «nd use his remedy to recover damages he may have sustained in not having received the whole consideration. 294. ANSON ON CONTRACTS. 137 CONDITIONAL PROMISES. What are the three kinds of conditional promises? (a) Subsequent. , (b) Concurrent, and (c) Precedent. 295 A makes a promise to ^, in case of a condition sv,hse- quent, whiin are the rights of X under A^s 2)ro7nise determin- able? Upon a specified ev^nt. 295 In case of a condition concurrent, how are the rights of X nnder A's promise affected? They are dependent upon his doinof, or being prepared to do, something simultaneously with, the performance of his promise by A. 295-296 In the case of a condition precedent when do the rights of X under A^s promise arise f Not until something has been done, or has happened, or some period of time has elapsed. 296 What are floating conditions? Those conditions which suspend the operation of a promise until they are fulfilled, are called floating as opposed to those conditions, the performance of which, is fixed by time or cir- cumstances. 296 Does the non-fulfilllment of a floating condition effect a discharge? It does not. 296 Upon what may a conditional promise depend? (a) Upon the happening of an uncertain event. ^b) The lapse of time, or (c) The act of the promisee. 138 QUESTIONS AND ANSWERS. In any of the above oases can an action he irought upon the promise before the fulfillment of the condition? Such an action would be brought prematurely; and the condition suspends, according to its terms, the right to the .performance; though it does not discharge the contract. 297 Where A^s promise to Xis conditional, and not an absolute promise, how may he be discharged f {&) By the failure of X to perforin a "concurrent condi- tion;'" i. e., to do something or be ready to do something which should be simultaneous with the performance of his promise by A. (b) By the fact that there has been a total or substantial failure on the part of X, to do what he was bound to do under the contract, or a virtual failure of consideration. (c) By the untruth of some one statement or the^ breach of some one term which the parties considered to be vital to the contract. 297-298 In point of fact, what do concurrent conditions seem to bef They seem to be conditions precedent. Because the simul- taneous performance of his promise by each party must needs be impossible except in contemplation of law. 298 What is here meant by a concurrent condition? It meg,ns that there must be a concurrent readiness ■ and willingness to perform the two promises,- and thd,t if one is not able or willing to do his part the other is discharged. 298 This form of condition is more particularly applicable to what? To contracts of sale, where payment and delivery are assumed in the absence of express stipulations to be intended to be contemporaneous. 298 In cases of every executory contract of sale what may the buyer do? If he has contracted for an article of a particular quality, he is entitled reject the article tendered if it does not correspond in quality with the terms of the contract. 299 ANSON ON CONTRACTS. * 189 In every contract to supply goods of a specified degoription which the buyer has -no opportunity to inspect, the goods must answer what description? They must answer not only the specified description, but must also be salable and merchantable under that description. 300 What is the rule where the goods do not answer the descrip- tion? The buyer is not bound to accept goods which do not cor- respond to the description of the article sold even though they do correspond to the sample by which they were bought. 300. Where a purcliaser receives goods that are not of a mer- chantable quality, will he be compelled to retain them? No, he is discharged from the contract and need not receive them. 300 In the case of an executed contract of sale in which the property in the article sold has passed unconditionally to the buyer, can the buyer return the article bought if it is- not as expected? There is no express authority to that effect In the early law, but by late English decisions the right to rescind an executed contract of sale for breach of warranty is confined to cases of fraudulent warranty. 300, Note 2 What rights, closely analogous with the right of return,; can the buyer of an article exercise which proves to he worth- less, unmarketable, or different in character from that which he agreed to buy? (a) He can defend an action successfully for the whole amount of the price. (b) He can, if he has paid the price, recover it back as money received to bis use. 301 140 QUESTIONS AND ANSWERS. TTjyon what priTwiple can the iuyer if he has paid the price recover it? Oa the principle, that where a man has done all or any part of his share of a contract which is afterwards broken by the default of the other party, he may recover upon a distinct con- tract arising upon the acceptance by the other of money, goods, or services offered by him. 301 Where the performance of a promise is divisible so that a partial hreach will not discharge the other contracting party, will a total failure of performance operate as such a dis. charge? It will. 302 CONDITIONS PEECEDENT AND WAEEANTY. ^Yhat is a condition precedent? It is a statement or promise the untruth or non-performance of which discharges the contract. 304 In America will the breach of a condition precedent dis- charge a contract? It will, unless performance of the condition is waived or rendered impossible by the Act of God, the law, or the other party 303, Note 1. When will a term be a condition precedent and when a warranty? If the parties regarded the particular term as essentia] the term is a condition and its failure discharges the contract, but if the particular term was not considered essential it is a war- ranty, and its failure can only give rise to an action for such damages as have been sustained by the failure of that particu- lar term. 303-304 ANSON ON CONTRACTS. 141 'W/i7't is a warranty? Warranty is a more or less unqualified promise of indem- nity against a failure in the performance of a term in the contract 304 How may a condition he turned into a xoarranty? By an acquiescence in a breach of condition. 306 How is the question whether covenants are to he held dependent o>' independent of each otlier determined? J3y the intention and meaning of the parties as it appears on the instrument and by the application of common sense to each case. 305-306 What form may a condition precedent assume? It may assume either the form of a statement or of a promise. 306 What is necessary for the condition to lose its force? The part performance thus accepted after breach must be a "substantial part of the consideration," or the condition does liot lose its force. 308 EEMEDIES FOR THE BREACH OF CONTRACT. If the contract he discharged hy a hreach what three dis- tinct rights does the person injured acquire? (a) A right to be exonerated from further performance. (b) A right, if he has done anything under the contract to sue upon a quantum m,eriut, a cause of action distinct from that arising out of the original contract and based upon a new contract, originating in the conduct of the parties. (c) A right of action upon the contract or term of the con tract broken. 308-309 What remedies are open to a person who is injured hy a hreach of the contract made loith him? (a) He may seek to obtain damages for the loss he has sus- tained. 11 142 QUESTIONS AND ANSWERS. (b) He may seekto obtain specific performance of the con- tract, which the other party has refused, or neglected to per- form. 309 What is the difference ietioeen the two remedies? Every breach of contract entitles the injured party to damages, though they be but nominal; but it is only in the case of certain contracts and under certain circumstances that specific performance can be obtained. 309 DAMAGES. What do we mein hy nominal damage? By nominal damage we mean a sum of money that may be spoken of but has no existence in point of quantity, usually six cents. 309 What is the rule of common law as to damages? Damages should represent the loss sustained so far as it was in contemplation of the parties. 309-31(1 To what damages is the plaintiff entitled for a ireach of contract? To such damages as might have been supposed by the par- ties to be the natural result of a breach of the contract, such as might have been in their contemplation when the contract was made. 310 What were the facts in the case of Hadley vs. Baxendale? See Chapter on Leading Cases, Anson. 310. How can the plaintiff , recover for any special loss which m,ight accrue to him but which would not naturally and ohvi- ously fio'w from, the ireach? Such special loss must, if it is to be recovered, be a matter of expressed terms in the making of the contract. 310 ANSON ON CONTRACTS. 143 W/tat is the object in allowing damages hi an action for a breach of contract? It is for compensation and not for punishment. 311 What exception exists to the general rule just given? The breach of promise of marriage is an exception; for in such cases the feelings of the person injured are taken into account, apart from such specific pecuniary loss as can be shown to have arisen. 311. How is the difficulty of assessment to he met? A difficulty in assessing damages can in no way disentitle a plaintiff from having an attempt made to assess them and such difficulty must be met by a jury. 311 Can the plaintiff recover for 'prospective loss arising fr^m the refusal by the defendant to p>eiform a contract by which the plaintiff would have profited ? He can. 312 By what decree can a promise to do a thing be enforced? A decree of specific performance. 312 By what decree can a promise to forbear from doing a thing be enforced? By a decree for an injunction. Hoio did the Court af Chancery limit the exercise of this jurisdiction? The courts will not decree specific performance (a) Where the Common Law remedy of damages is ade- .quate to the loss sustained ; or (b) Where the matter of the contract is such that the court cannot supervise its execution. 312 Why is the specific performance of a contract for the pur- chase of real estate generally enforced in equity? Because the objects with which a man purchases a particular piece of land are different from those with which he purchases goods. 313 144 QUESTIONS AND ANSWERS. , What motives may prompt him in making a contract for a piece of land? He may be determined in making the contract by the merits of its site, or its neighborhood, and these can not be represented by a money compensation. 313 What is the general rule for the speoifio performance of a contract for the sale of goods in a court of equity? The specific performance of a contract for a sale of goods is only decreed in the case of specific chattels the value of which, either from their beauty, the interest attaching to them, or some other cause, cannot be represented by damages. 313 What is the distinction between the sale of lands" and that of goods? An agreement for the purchase of land can be performed by the doing of a specific act, as the execution of a deed or con- veyance; while in the contract for the sale, and delivery of goods the performance may extend over some time and involve the fulfillment of various terms-. 313 When only does the court act? The court a'cts only when it can perform the very thing in the term specifically agreed upon. 313 What were the facts in the case of Lumley v Wagner f See Chapter on Leading Cases. Anson, 313 DISOHAEGE OF THE EIGHT OF ACTION. ITow may the right of action, arising from a hreac/i- of con- tract, take place? (a) By consent pf the parties. (b) By judgment of a court of competent jurisdiction. (c) By lapse of time. 31i ANSON ON CONTRACTS. 145 In what way may a discharge take place iy consent of the parties f This may take place either by release or by accord and satis- faction. 314 What is a released A release is a waiver, by the person entitled, of a right of action accruing to him from a breach of promise made to him. 314 What is necessary in 'order that such a waiver should bind the person making it? It should be made under seal, otherwise it would be nothing more than a promise given without consideration to forbear from the exercise of a right. 314 What instruments form an exception to this rulef Bills of exchange and promissory notes form an exception to the rule, because they admit of parol waiver before they fall due. 315 What is an accord in satisfaction? It is an agreement whicli need not be by deed, the effect of which is to discharge the right of action possessed by one of the parties to the agreement. 315 In order to have this effect what is necessary? The consideration should be executed ia -favor of the party entitled to sue, otherwise it would be an accord without satis- faction. 315. What rhyme conveys them,eaning of the above? "An accord Without satisfaction Gives the plaintiff a legal right of action." In what may the satisfaction consist? (a) It may consist in the acquisition of a new right against the debtor. (b) Of a new right against the debtor and third parties. (c) Of something different in kind to that which the debtor was bound by the original contrac^t to perform, but it must 146 ' QUESTIONS AND ANSWERS. have been taken by the creditor as satisfaction for his claim in order to operate as a valid discharge. 315 Ths judgment of a court of competent jurisdiction in the flaintlff^s favor, does what? It discharges the right of action, arising from the breach of the contract ; the right being merged into a contract of record. 315 ■ Does the hrlnging of an action have of itself any effect in discharging the right to bring an action? •It has not, for any number of actions may be brought in different courts. 316 Where an action is hrought in an English and a foreign court, the fact that the defendant was being sued in the lat- ter, would in what manner off net his position in the former? It would not affect it at all. 316 When the action is pursued to judgment, what will a judgment adverse to the plaintiff do? It discharges the operaton by estoppel. 316 Can the plaintiff bring another action for the same cause? He can not as long as the judgment stands. 316 Upon what must the adverse judgment in order to dis- charge the obligation by estopping the plaintiff from re' asserting his claim liave proceeded'^ It must have proceeded upon the merits of the case. 316 Will a judgment rendered against a man because he has sued in the wrong character or at the wrong time prevent him from bringing a subsequent action? It will not. 316 How may a contract of record be discharged? [ By payment of the judgment debt, or. by satisfaction ob- tained by the creditor from the property of his debtor by the power of execution. 316 How does thelapse of time affect the parties to a contract? Except by expresess statutory provision, the lapse of time does not affect the rights of the parties to the contract. 317 ANSON ON CONTRACTS. 147 _ THE STATUTE OF LIMITATION. What actions arising upon contract are barred by the Statute of Limitation? All actions of debt grounded upon any lending or contract without specialty and all actions of debt for arrrearages of rent are barred unless commenced and sued within six years after the cause of such action arises, 317 Within ■v:hat time does the Statute of Limitation limit the bringing of actions on any contract under seal? Such action is limited to a period of twenty years from the time the cause of action arises./ 317 When does the Stattote of Limitation begin to run? As soon as the cause of action arises. 317 What causes will suspend the action of the Statute of Limitation? Infancy, coverture, insanity, imprisonment, or absence be- yond the sea would suspend the opeaation of the statute until the removal of the di-sability, if the plaintiff was affectad by any of these disabilities at the time the cause of action arose. 317 When the defendant is beyond the seas at the time the -right of action, accrues^ how long is the action suspended? Until he returns. 317 Where there are two or more defendants, one of whom is heyond the seas, what may be done? The plaintiff may proceed at once against those who are accessible without affecting the rights of him who is beyond the seas. 318 LLow will the disability arising after the period of limi- tation has began to run affect the operation of thestatxite? It will not affect it at all, nor will ignorance that the i-ight of action existed. 318 148 QUESTIONS AND ANSWERS. Whei'e a specialty contract results in a money debt how ma'tf the right of action he revived for the statutory period of lit?iitation? (a) Bj an acknowledgement c(f the debt in writing signed by the party Jiable, or his agent. (b) By part payment, as part satisfaction, on account of any principal or interest due on such specialty debt. 318 How may the right of action he revived in specialty deht; and in a deht in simple contract f A payment made by the agent of the party liable will revive the claim of aspecialty debt^ and the subsequent acknowledge- ment of promise revives the debt on a simple contract. 318 How can a case he taken on,t of the Statute of Limitation? There must be one of three things to do this (a) An acknowledgment of the debt from which a prom- ise to pay is implied. (b) An unconditional promise to pay the debt, and (c) A conditional promise to pay the debt and evidence that the condition has been performed. 319 "What rules are laid down by the American courts?' (a) The statute is regarded as a statute of repose as well as a statute of presumption. (b) An acknowledgment to remove the bar must be made to the proper person, and with proper formalities when required by statute; and in terms' sufficient to warrant the in- ference of a promise to pay the debts. (c) Part payment, in order to remove the bar, must be made under such circumstances as amount to an acknowledg- ment of the debt. 319, Note 1. ANSON ON CONTRACTS. 149 CHAPTER IV. IMPOSSIBILITY OF PERFORMANCE. What effect has obvious physical or legal iinpossihility 'aj>2^areut upon the face of the promise of a contract? It avoids the contract because the promise is an unreal con- sideration for any promise given in respect of it. 320 Upon what ground does impossibility which arises from the non-ea;istence of the subject avoid the contract f Upon the ground of mistake; bat this rule has two notable exceptions in the cases of Hills vs. Sughrue, and Clifford vs. Watts which are diametrically opposed' to each other. 320-323. What is the general rule for impossibilities arising subse- quent to the form.ation of the contract? Whether or not such impossibility originates in the default of the promisor he will not be excused from performance. What were the facts in the case of Paradine vs. Jane? See Chapter on Leading Cases, Anson. 322. What forms of impossibility are said to excuse from per- foriiuince? (a) Legal impossibilities arising from a change in the law of our country, exonerates the promisor. (b) Where the continued existence of a specific thing is •essential to the performance of a contract, ita destruction from no fault of either party, operates as a discharge. (c) A contract which has for its object the rendering of of a personal service, is discharged by the death or incapaci- tating illness of the promisor. 323-324-325. What were the facts in the case of Bailey vs. Be Ores- pigny? See Chapter on Leading Oases, Anson. 323. What were the facts in the case of Taylor vs. Caldtoell? See Chapter on Leading Cases, Anson. 324. What were the facts in the case of Robinson vs. Davidson? See Chapter on Leading Cases, Anson. 324-325. 150 QUESTIONS AND ANSWERS. CHAPTER V. DISCHARGE OF THE CONTRACT BY OPERATION OF LAW. What is merger? Merger is the acceptance of a higher security in the place of a lower; i. e. a security which in the eye of the law is superior in operative power, ipso facto, and apart from the intention of the other parties, merges or extinguishes the low^r. 326. What are the rules governing the process of mergsrf (a) The two securities must be different in their legal operation, the one of a higher efficiency than the other, (b) The subject matter of the two securities must Ive iden- tical. 1 (c) The parties must be the same. 326. Subject to what rules is a deed or contract in, writing when altered by addition or erasure discharged? (a) The alteration must be made by a party to the con- tract; or (b) By a stranger while in possession and for hb benefit. (c) Alterations occurring by accident or mistake and under such circumstances as to negative the idea of intention, will not in validate -the document. (d) The alteration must be made without the cona,)nt of the other party, else it would operate as a new agreement. (e) The alteration must be made in a material part. 327 What amounts to any material alteration? Any alteration which causes the instrument to s^;ak a lan- guage different in legal effect from that which it s)riginally spoke is a material alteration. 327, Note 1 ANSON ON CONTRADi'S. 151 Howdoes the loss of a written instrument affect the rights of the parties? It only affects their rights in so far as it occasions a diffi- culty of proof; except in bills of exchange and promissory notes. 328 When the holder of a bill of exchange or promissory note loses it how are his rights affected f He loses his rights under it, unless he offer to the party primarily liable upon it, an indemnity against possible claims. 328 ■ ' When does harbhruptcy effect a statutory release from debts and liabilities proveable binder bankruptcy? This is done when the bankrupt obtains from the court an order of discharge. 328 i ANSON ON CONTRACTS. 153 LEADING CASES. ABllIDGED, ANI^^OTATED AND SYSTEMATIZED BY THE AUTHOR. ANNOUNCED IN ANSON ON CONTKACTS. Hoiisehokl, Fire Insurance Co. vs. Grant. Decided in England, July 1, 1879. iExch. Div., 216; Anson 24. Peinciplk. — A case determinin,^ the moment of Accfept- ance and Communcation in Contracts. CASE IN BRIEF. Some years ago Thomas Grant, the defendant in this case made an application to the Plousehold Fire Insurance Company, (limited), for ope hundred (lO(i) shares of stock, enclosing a £5 note as iirst payment on the price of the shares. Upon the receipt of his letter the secretary of the insurance company entered Grant's name npon the books and sent him a letter of acceptance, containing as requested, a notice of his allotment oi shares. Grant never received the letter nor heard anything more from the Household Insurance Company for about three years, when notice came stating that he was in ari'ears to the 154 LEADING CASES. Rmoant of some £96; he refused to pay the arrearages, alleging that he never received the letter of acceptance from the com- pany and consequently there was no agreement to bind him: Suit was commenced against Grant by the Household Fire Insurance Co. to recover the arrearages on the shares held by him, on the ground that the contract between them was closed the moment they sent him a letter accepting his offer. The court sustained this view of the case, and in rendering judg- ment Lord Justice Thesiger thus clearly lays down the law: "The acceptor, in posting the letter, has, to use the language of Lord Blackburn, 'put it out of his control and donean ex-' traneous act which clenches the matter and shows beyond all doubt that each side is bound.' How then can a casualty in the past, whether resulting in delay, which in commercial transactions is often as bad as no delivery, or in non-delivery> unbind the parties or unmake the contract? " Judgment was rendered against Grant in favor of the Household Fire Insurance Company for the sum of £9J: 15s by the English Court of Appeals. ENGLISH RULE. Parties are bound from the moment the letter of acceptance is put in the course of circulation or transmission, by a eon- tract, the existence of which is unaffected by the subsequent fate of the letter. When the leitek is mailed, the contract IS SEA.LED. AMERICAN RULE. The settled rule in American Courts is, that the contract is complete as soon as the acceptance is duly mailed, or placed in the hands of an agent of the proposer, whatever may be the subsequent fate of the previously sent letter. But if the ANSON ON CONTRACTS. 155 acceptance be sent by an a^ent of the acceptor^ then it is insufficient until received by the proposer. Yassar vs. Camp, 11 N. Y.; 441 contra McOullough vs. Eagle Insurance Com- pany, 1 Pick. 27S BYRNE VS. VAN TIENHOVEN. Decided in England, March 6th, 1880. 5 Com. Plea. Div. 344; Anson 27. Principle. — A case setting forth the law regulating offer and acceptance^ CASE IN BEIEF. This case has not only become widely known from the fact that it involves some very interesting legal teciniicalities, but also because it shows the impartiality with which courts of a foreign country endeavor to administer justice alike to all. Byrne, the plaintiff, was a wholesale tin merchant who con- ducted a large business in New York City. He received word from Leon Yan Tienhoven, an exporter of tin, living at Car- diff, South Wales, stating that he would supply Byrne with a certain quality of tin at specified prices. Upon receipt of the letter Byrne sent a cablegram to Yan Tienhoven saying that he would accept one thousand boxes of the tin plate at the prices quoted in Yan Tienhoven's letter, and for- warded a bill of exchange for the amount due. Yan Tien- hoven wrote his first letter Oct. 1, and Byrne received it Oct. 11th, and answered it on the same day accepting the offer in the mode requested (i. e., by cable). Between October 1st and 8th tin took a sudden rise in the market, whereupon Yan Tienhoven wrote a letter on the 8th of October to Byrne rescinding his offer of October 1st, and refusing to ship the tin. 156 LEADING CASES. Bvrne then brought act'Jon against Yan Tienhoven to recover damages for the non-compliance of his contract. At the trial two questions aro^e for settlement, "(1) Whether a withdrawal has any effect until it is communicated to the party to -whom the offer has been sent? (2) "Whether postinga letter of With- drawal is a communication to the person to whom the letter is sent?" and it was held "that both legal principle and practical convenience requires that a person who has accepted an offer not known to him to have been revoked shall be in a position safely to act upon the footing that the offer and acceptance constitute a contract binding upon both parties." The court therefore rendered judgment in favor of Byrne, the pkintiff, in the sum of £375 together with the costs of the suit, and established the ENGLISH EULE. Until the moment of acceptance an offer is revocable, but the notice of revocation mu-st be communicated, and the MOMENT OF COMMUNICATION IS THE MOMENT OF EEOEIPT. AMERICAN" RULE. , Tlie English rule is absolute in America. Larmon vs. Jor. dan, 56 III, 204 COOK VS. OXLEY. Decided in England, III ,& lY Durnford & East, 653; Anson 28. Tkinciple. — This case is an exception to the rule that "Until the moment of acceptance the offer is revocable; notice of revocation must be communicated, and the moment of COMMUNICATION IS THE .MOMENT OF EEOEIPT." ANSON ON CONTRACTS. 157 CASE m BRIEF. When the eause of this action arose, Oxley, the defendant, was a wholesale tobacco merchant residing in England. Hav- ing an extra large shipment in store, he offered Cook,, the plaintiff, 266 hhgs. of it at certain stipulated prices. Cook, not being positive that he could care for so large a quantity, desired Oxley to extend the time of his offer until i o'clock that day, at which time he would be ready to give Oxley an answer in regard to his acceptance or refusal of the offer. Oxley assented to the request and within the prescribed time received word from Cook that he would accept the tobacco. In the meantime Oxley had decided to rescirvd his offer and refused to deliver to Cook the tobacco. Upon this refusal to deliver, Cook commenced an action to recover daniages for the Idss sustained in the non-delivery of the goods, alleging that he accepted the offer within the prescribed time. The coxivi held that the promise made by Oxley to keep the offer open until 4 o'clock was not binding for want of consideration, and that his offer was nothinsr more than an invitation to do business on certain terms within a certain time, and not one which unless revoked might be turned by acceptance into a binding contract. The court fur- ther inferred that Oxley was not only free to revoke his offer at any time before acceptance, but that he was free to revoke it by a mere sale of the goods without notice.' In rendering jiidgment the court held that "the promise can only be sup- ported on the grounds of a new contract made at 4 o'clock; but there is no pretense for that. It has been argTiedthat this must be taken to be a complete sale froln the time the condition was complied with; but it was not complied with, for it is not stated that Oxley did agree at 4 o'clock to the terms of the sale, or even that the goods were heft till that time.'''' A decision of non assumpsit was then rendered in favor of Oxley, the defendant. 12 158 LEADING CASES. ENGLISH KULE. The acceptance of an offer to sell goods constitutes a con- tract of sale only as from the time of acceptance, and the CDNTEACT DOES NOT EELATE BACK TO THE TIME WHEN THE OEFEE WAS MADE. AMEEICAN KULE. It Jias been settled in America, that the offer may neverthe- less be retracted in the interval, if no consideration has been given for the promise to be held open. The difficult question seems to be what amounts to, a retraction? It is believed with regard to this question that there is no rational distinction between contracts made inter absentes (between persons at a distance) and those made inter presentes (between persons present); and the weight of American authority is to the effect that no withdrawal of a proposal before the time allowed has elapsed, is effectual until knowledge of that withdrawal is in some way communicated to the person receiving the proposal. Pomeroy on Contracts § 61; Story on Contracts (5th ed.), § 498, N. ; Parsons on Contracts § 484. DICKINSON VS. DODDS. Decided in England, March and April, 1876. 2 Chan. Div. 463; Anson 29. Peinciple. — This case also is an exception and contrary to the rule, viz: " Until the movement of acceptance an offer is revocable; but the notice of revocation must be communi- cated and THE MOMENT OF COMMUiNIOATION IS THE MOMENT OF EECEIPT." ANSON ON CONTRACTS. 159 CASE m BRIEF. This case has become aland mark in judicial decisions from the fact that the rule laid down by the judges is diametri- cally opposed to that given by Judge Lindlgy in Byrne vs. Yan Tienhoven a paralell case. John Dodds owned a smsill property at Croft, England, and offered it for sale to one George Dickinson, under the subjoined written promise. " June 10, 1874. I hereby agree to sell to Mr. GeoVge Dick- inson the whole of the dwelling houses, garden ground, stabling and out buildings thereto belonging, situated at Croft, and belonging to me, for the sum of £800, as witness my hand this 10th day of June, 1.^74. " "{£800.) (Signed) John Dodds." " P. S. This offer to be left over until Friday, 9 o'clock A. M., J. D. (the twelfth) of June, 1874:. (/S'?>H«Z) "J. DoDDS." On the morning of June 11th, another man appeared upon the premises and offered Dodds, the defendant, £800, for his property; without giving Dickinson notice of the new offer he accepted it and transferred the deed to the purchaser. Shortly afterwards Dickinson was informed of the transaction by one not authorized by Dodds, and immediately gave notice to Dodds that he would accept the property. This notice was civen in due form before 9 A. M. Friday, June 12th. Of course Dodds could not sell him the property and Dickin- son commenced a suit for the specific _ performance of the terms of the contract. The Court of appeal held that there was no contract, and declared that " there is neither princijde nor authority for the frojyosition that there must he an actual and express withdrawal of the offer or what is called retrac- tation-" and rendered their decision favorable to Dodds. 160 LEADING CASES. ENGLISH EULE. An offer to sell property may be withdrawn without any formal notice to the person to whom the offer is made. It is sufficient that the person have actual knowledge that he who made the offer has done some act inconsistent with the con- tinuance of the offer, as selling the property to a third person. AMEEICAN EULE. In the absence of consideration no formal notice is necessary to constitute a withdrawal of the offer. A sale of the prop- erty to another is sufficient. Pomeroy on contracts, §61. WAIN VS. WARLTEES. Decided in England, April 19, ISO-t. .5 East, 10; Anson 58. Pbinciple. — A cas.e determining that the consideration ot every contract must appear in writing, as well as the terms of the promise sued upon. THE CASE IN BEIEF. At the beginning of the century, Wain and Company were merchants doing business in England. One Hal] became in debted to the firm for the sum of £56, which when it became due he had ncS means of liqiridating the obligation. The iirm thieatened to sue him for the money, and to save him from going to a debtor's cell, his friend Warlters lifted the responsibility by giving the following collateral security. "Messrs. Wain & Co: I will engage to pay you by half- past four this day £56 and expenses on the bill of that amount, on Hall. {Signed) Jonatham Wakltees. ANSON ON CONTRACTS. 161 ■"No. 2., Cornhill, April 30, 1803." Hall did not pay the bill and accordingly Wain & Co. brought suit against Warlters for the sum due them. The court held that no ootmderation appeared in the agreement for Walter's promise ,to pay the £56, and as the Statute of Frauds requires that the agreement must be in writing, they held the consideration to be as much a part of the agroement as the promise/ and as they could not permit parol e\idence to prove that a good and true consideration existed, the agree- ment was declared to be on its face nudum pactum, thus giving no cause of action. Consequently Wain & Co. failed to recover the £56. ENGLISH EIJLE. No person can, by the Statute of Frauds, be charged upon to pay the debt of another, unless the agreement' n-pon which the action is brought or some note or memorandufn thereof be in writing. By which word agreement must be understood to mean the consideration for the promise as well as the promise itself. AMERICAN RULE. The American courts are in hopeless confusion over thi4 rule aa many of the courts follow it, while many others repu- diate it entirely. Taylor vs. Pratt, 3 Wis. 674. Contra, Sage vs. Wilcox, 6 Conn. 91. DONELLAN VS. EEAD. Decided in England, Jaly, 1832. . 3 B. and Ad. 899; Anson 62. Feinoiple. — A. case commenting upon agreements not to be performed within the space of one year from the making thereof. 162 ^ LEADING CASES. CASE IN BEIEF. Donellan was the owner of a bake house and grounds, eitu- ated in one of the larger cities of England. Desiring to retire from the business, he leased the entire premises' to a man named Eead, for. a period of twenty years,, beginning June 7, 1822. Donellan was to receive from Read an annual rental fee of £50, payable quarterly. Eead, the defendant, desired some improvements to be made about the premises, and in con- sideration of such improvements, agreed to give an additional £5 rental, per year, for the remainder of his term. Donel- lan, the plaintiff, made alterations and improvements upon the premises to the amount of £55 during the year, and Read made one payment of the additional £5 agreed upon. When Donellan brought the agreement to Read to sign, he refused, and also refused to make further additional payments, on the ground that the contract was brought under the terms of the Statute of Frauds, and as it was not in writing, he refused to comply with the terms of his verbal agreement. The court held that the contract did not come within the meaning of the Statute of Frauds, and compelled Eead to make good his promise. Judgment for plaintiff. EISTGLISH EULE. Such a contract as the above is hot a contract, for "any inter- est in, or concerning lands," within the meaning of the Fourth Section of the Statute of Frauds, nor is it according to that statute, "an agreement to be performed within a year from the making thereof," no time having been fixed for the perfor- mance on the part of the landlord. AMEEICAN EULE. The above rule has been followed in most of the American courts, but several of the courts have declined to support it. ANSON ON CONTRACTS. 163 They hold that aTthough that which one of the parties to the agreement is to do, is all to be done within a year, still, if the ■other party's promise is not to be performed within a year, it is within the letter and spirit of the Fourth Section of the Statute of Frauds. Winters vs Gharry, 18 Mo. 350. Contra, Whipple vs. Parker,-29 Mich., 375. J.EROIJX VS. BROWN. Decided in England, Nov. 10, 1852. 12 Com. Bench., 801; Anson 62, 63. Principle. — A case establishing the law as to the validity and enforcement of contracts, made in a country where the Statute of Frauds does not exist, and sued upon in a country where such contracts are regulated by the Statute of Frauds. CASE INBEIEF. About ihe year 1850, an Englishman named Brown, was traveling through Europe. In the City of Calais, France, he engaged the services of one Leroux, at a salary of £100 per annum. The agreement was a verbal one, as the French law does not require such contracts to be made in writing. Soon after the agreement had been concluded land before Leroux went to work, Brown decided that he could dispense with his services, and'hence refused to comply with the terms of his contract. Shortly after this. Brown the defendant, returned to England. Leroux followed him and commenced suit in the English courts, to recover his salary, upon a contract "not to be performed within a year from the making thereof," the contract being made in France and not reduced to writing. By the rules of private international law, the validity of aeon- tract, as regards its formation, is determined by the lex loci 164 LEADING CASES. contractus; but the procedure in trying tlie rights of parties inder a contract is governed by the lex fori, and the mode of proof would thus depend upon the law of- the country where the action was brought. In this case it must depend ujion the laws of England. This was exactly what Leroux desired, because if the Fourth Section of the Statute of Frauds avoided all contracts made in ireach of it, (which this contract was); Leroux could have j-ecovered, as his contract was good in France where it was made, and the lex loci contractus would have been applicable. If on the other hand, the Fourth Section affected procedure only, the contract, though not void, was incapable of proof. Leroux endeavored to show that his contract was void by the English law and Statute of Frauds, and thus insure the success of his case, for could he have accomplished this, it would have been an easy matter for him to prove first the contract, and then the French law which made it valid. , But the Court of Coirimon Pleas held that the- Fourth Section of the Statute of Fraunds dealt with procedure only, and the existence of the contract was not affected by it^ but simply rendered incapable of being proved. The court then decided that Leroux could not be able to maintain his action and rendered judgment in favor of Brown. ENGLISH EULE. A contract, not in writing, but valid by the laws of the country in which it is made, will not be enforced in a country where the Statute of Frauds prevails, unless put in writing. AMEEICAN KULE. There is much confusion in American courts concernine this rule. Many states follow it, while many others abso- lutely reject it. In still other states it is regulated by statute, Domier vs Cheeseborough, 35 Conn., 39. Contra. AUshouse- vs Ramsey, 6 Wharton, (Pa). ANSON ON CONTRACTS. 165 LEE VS. GRIFFIN. Decided in England May 9, 1S61, 1 B & S., C. B. 1872; Anson 66—67. Peinciple.^A case making a distinction between a con- tract for the sale of goods, wares and merchandise, and a con- tract for work and labor done and materials used. CASE IN BRIEF. Lee, the plaintiff in this snit was a professional dentist, who contracted with an old lady named Mrs. Pearson to supply her a set of false teeth for the sum of £21. By the ♦'erras of the contract Lee guaranteed the teeth to give sat i£f action in every respect, and iit her mouth perfectly. When the plates had been completed by the dentist, he sent Mrs. Pearson a note requesting her to set a date upon which she could call at the dental office and have the teeth fitted in her mouth. In the mean time the old lady had contracted a serious ill- ness which confined her to her apartments, and upon the re- ceipt of Lee's note, she replied, telling him that she feared it would be many days before she cou^d venture out. She never rallied from her illness, and after lingering a few weieks «he died. The defendant, GrifSin, was named as executor of the de- ceased lady's estate ; to whom Lee presented his bill for the sum of £21, the value of the teieth. Griffin refused to honor the claim, and Lee at once brought suit against him to recover the value of the teeth, basing his grounds of recovery upon materials used and work and labor done. The court held that an action of this kind would not lie; for whenever the ultimate delivery of a ohattel is contemplated, it is a con- tract for the sale of goods, wares and merchandise, and not for work and labor done and materials used. In drawing this distinction Justice Eiackburne observed: "I do not think 166 LEADING CASES. that the relative value of the labor and the materials, oq which it is bestowed can in any case be the test of what is the cause of ac4;ion ; and that if Benyenuto Cellini had contracted to execute a work of art. for another, much as the value of the skill might exceed that of the materials used, the contract would have been none the less for the sale of a chattel." Upon these ' grounds Lee was non suited. ENGLISH EULE. A contract which contemplates the ultimate delivery of , a chattel, is a contract for the sale of goods, wares and merchan- dise, under the Seventeenth Section of the Statute of frauds. AMERICAN RULE. In America this case is a departure, and cannot be regarded as good law. NEW YORK RULE. In New Yoi'k State the distinction is made between the sale of goods actually in existence at the time of making the contract, and an agreement to inaniifacture goods. The former falls within the prohibition of the statute, the latter does not. Cooks vs. Millard, 65 N. Y., 360. Parsons vs. Loucks, 48 N. Y. 17. SHADWELL, VS. SHADWELL.. Decided in England, 1860, 9 0. B. (N. S.) 159, Anson 88. Peinciple. — A case wherein the judges in giving their decision take exceptions to the rule which had for years pre- Tious been regarded as sound law, viz: " The agreement to do what one is legally bound to do, is void for want of consider- ation" ANSON ON CONTRACTS. 167 CASE IN BEIEF. Lancelot Shadwell was a young barrister-at-law, just starting out in life in one of the smaller cities of England. He had succeeded in winning the affections of a very worthy young lady named Ellen Nichols, and preparations for the wedding had been comn;ienced. He wrote to ■ his uncle Charles Shadwell, a very wealthy old gentlemen, of his in- tended marriage, tfpon the receipt of this information, Charles Shadwell sent his indigent nephew a letter of con- gratulation, and in .this letter he further stated that should the ceremony actually occur, he would bestow upon the young couple as a wedding present, the sum of £150 pounds as a yearly annuity through life, or until such time when young Lancelot's salary as a barrister-at-law should aggregate six hundred guineas per annum (about $3,000). The marriage was soon after solemized and the young couple received their annuity for a number of years, after which time it fell in arrears. Some years later the donor of this annuity was stricken down with sudden illness and died. Another indi- vidual named Shadwell, was appointed executor of the estate of the deceased . From the executor Lancelot Shadwell de- manded the continuance of the annuity and also a settlement of the arrearages, alleging that he had never succeded in having his annual salary reach the sum of six hundred guineas. The executor refused to pay either the annuity or the arrearages on the ground that Lancelot had done nothing more than he was legally bound to do, in marrying Ellen Nichols after having made her the promise. The executor of the estate based his grounds of refusal upon the rule quoted above. The court, in reviewing the case, concluded that under the peculiar circumstances the above tule was not applicable to the case, and held that the marriage was suflScient to support the promise, which was in fact an offer capable of becoming 168 LEADING CASES. a binding contract when the marriage took place. One of the judges dissented from the decision, holding the rule quoted to be the law, but judgment was rendered in favor of Lancelot Sh9,dwen. Before an execution of the judgment was obtained Lancelot Shadwell died and his heirs not caring to longer continue the case, agreed upon a compromise satisfactory to all. ENGLISH EULE. ' A promise is binding which is made in consideration of a performance or " promise of performance " by one of ihe par- ties to a contract already subsisting between him and ii third party. AMERICAN EULE. The American courts have not rendered their decisions in conformity with this rule, holding that such a contract is not binding for want of consideration. Johnson vs. Sellers, 33 Ala. 265 ; Peelman vs. Feehnan, 4 Ind. 612. LAMPLEIGH VS. BRAITHWAIT. Decided in England, 1615, Hobart 105; 1 S. L. C. 64-141; Anson 92. Peihciple. — A rule of law holding that & past consideration will support a subsequent promise, if such consideration was given at the request of the promisor. CASE IlSr BEIEF. Nearly 300 years ago there dwelt within the English realm three individuals whose names were resp,^ctively Anthony Lampleigh, the plaintiff, Thomas Braithwait, the defendant, and Patrick Mahume, deceased. Braithwaite and Mahume ANSON ON CONTRACTS. 169 became involved in an altercation in which the latter received injurios from which he died. The assassin was apprehended, and after all necessary preparation, signified his i*eadiness for trial. It appeared in the evidence at the trial that Mahnme was the instigator of the quarrel, hvtt the laws of England at that period were peculiar in regard to self-defence, and after what purported to be an impartial hear- ing, Eraithwait was found guilty by a jury of his pefirs and sentenced to die. Lampleigh was a staunch friend of the condemned man and also had influential friends at the" king's court, he accord- ingly volunteered to make intercessions for the life of his friend. He made several journeys to London and finally was successful in obt?iining a hearing from King James in person. The gi'ievance was laid before the king in an able manner and after. hearing the case in detail he granted Braithwaite an un- conditional pardon. Upon gaining his freedom, Braithwaite in gratitude for the invaluable services rendered him by liis friend promised to pay Lampleigh £120 as a pecuniary com- pensation for his efforts; but when the time of payment ar- rived Braithwaite's generous spirit of gratitude had departed and he refused to fulfill his promise, whereupon Lampleigh sought redress in the courts to compel Braithwait to fulfill the terms of his promise. Braithivaite defended his act^ion on tlie ground that " a mere voluntary promise or courtesy will not have consideration to uphold an assumpsit." The court held, that while that would be a good ground for a defence in ordinary cases, yet, "If that courtesy were moved by a suit or request of the party that gives the assumpsit, it will bind; for the promise, though it follows, yet it is not nudum pactum, but coiiples itself with an interest in the suit before, and the merits of the party procured by that suit." The court held that Lampleigh was jusny entitled to recover on the promise, and gave judgment in hi"s favor for £120. 170 LEADING CASES. EJSGLISH KULE. Services performed by ithe plaintiff at the defendant's request, are good considerations to snpport a subsequent promise to pay, but null and void if performed without request; i. e., a past consideration will suport a subsequent promise if the con- sideration was given at the request of the promisor. AMERICAN EULE. This rule is unquestioned and absolute law in the United States. Carson vs. Clark, 2 111. 113; Pool vs. Homer 64 Md. 133. MOLTON VS. CAMROUX. Decided in England, June 13, 1848. 4 Exchange . 486 ; Anson 116. ' Peinciple. — This case explicitly lays down the law in regard to the validity of contracts entered into with idiots, lunatics, and non-sane persons generally. CASE IN BRIEF. Many persons are to be found eccentric in some ways and still possessing a reasonable degree of intelligence in others; yet at no time can such persons be classed among the insane or lunatics. Such an individual was Thomas Lee, the princi- pal in this case. He did not possess the brightest of minds, yet he was sufficiently competent to make an honest liv- ing and economical enough to accumulate a few pounds sterling to be used in cases of emergencies should any chance to arise. After having accumulated quite a little sum, he concluded to invest it safely. He accordingly applied to Mr. Camroux, the defendant, for shares of stock in The National Loan Fund Library Association. Camroux, who was secretary of the ANSON ON CONTRACTS. 171 association, entered his name upon the books and issued his allotment of shares to the amount of £355 6s. 2 d. Soon after this purchase Thomas Lee was taken ill and died, whereupon Mr. Molton was appointed executor of his estate. ' As soon as he discovered what had become of this money Molton endeavored to recover it from the society on the alleged grounds that Lee , was a coniirmed lunatic and had biien for several years prior to his death. It appeared in evidence that no advantage had been taken of him by the association and furthermore, that in the transaction in question, he showed not the least indication of insanity. The court found the deal to be a bona fide transaction and therefore held that iinder the circumstances Molton could not recover the claim. EN^GLISH EULE. Where a person apparently of sound mind and not known to be otherwise, enters into a contract which is fair and bona fide, and which is executed and completed; and the property whicli is the subject matter of the contention can not be returned so as to put the parties in statu quo (the same condition as thpy were in at lir^t) ; such a contract cannot be set aside afterwards, either by the alleged lunatic himself, or by any one who repre- sents him. AMERICAN RULE. I The above rule is generally followed in the American courts, yet not exclusively. It is applied in each case only to prevent a wrong from being done and is based upon the doctrine and principle that " the law will not permit the lunatic's infirmity to be made the instrument of fraud, by such persons who re- pudiate the contract on account of his mental incapacity. Eaton vs. Eaton, 37 N. J. L. 118; Wilder vs. Weakly, 34 Ind. 181. 172 LEADING CASES. RANN VS. HUGHES. Decided in England 1T88. 7 Term Reports, 350; Anson 69. Principle. — A case holding that consideration ig necessary to the validity of every contract. CASE IN Bl^lEF. This case originated out of a family affair, and, like all such ■difficulties, the more agitation there was concerni-ng it, the more intri.cate it became. John and Mary Huglies lieired certain property, of wluch they were to take equal shares, but tlie property ,at appears, was of such a nature that it was impos- sible to make a division in which both would receive equal portions, and neither desired the other to receive the larger share. Finally they agreed to refer the matter to a committee of arbitration, and abide the decision of this committee. The committee decreed, that, while John could take' the larger share of the property, he must pay to Mary the sumi of £983 to equalize the difference between the value of the two shares. This, John aijreed to do, but before he could fulfill his promise, he was taken ill and died, without having made a will or appointed an executor of his estate, which was amply sufficient to liquidate the debt. After this, Isabella Hughes, a relative of John, and the real defendant in this case, was appointed executrix of his" estate; she at once began to take steps toward paying off this indebtedness, but the unexpected always happens,- and before the money could be paid by the administratrix, to Mary Hughes, Mary was stricken down with disease, and also died; not, however, without having made a will, and, in it, naming the plaintiff, Eann, as the executor of her estate. The defendant, Isabella Hughes, being administratrix of the deceased John's estate, became liable for his promise to pay Kann, Mary's executor, the sum of £983, the sum due. Being thus liable, she " undertook and promised to answer for ANSON ON CONTRACTS. 173 damages out of her own estate." Learning that the lawwould not compel her to f ultiU this promise, Isabella refused to pay the debt when it fell due. Rann , then brought suit to recover the £983 on the ground that the agreement was in writing, and thus valid in the meaning of the statute. The court held that though the agreement was in writing, it was only a simple contract, and as there appeared no consideration for the prom- ise, such a contract was void without it, and consequently refused to compel Isabella Hughes to pay over the money claimed by Rann, the executor of Mary's estate. ENGLISH RULE. All contracts, by the laws of England, are distinguished int» agreements by specialty, and agreements by paeol, and where such contracts are merely written, and ijot specialties, they are classed as parol contracts, the consideration of which must be proven, and the promise co-extensive with the considera- tion. AMERICAN RULE. By the statutes of Missouri, California, Iowa, Indiana, Ken- tucky and Kansas, a written instrument is presumptive evi- dence of consideration, and all written instruments are so far placed upon a level with negotiable paper. See statutes of States named. FOSTER VS. MACKINNOlSr. Decided in England, July 6th, 1860. 4 L. R. C. P. 704, Anson 124 Peinciple. — A case determining the validity of contracts entered into between two parties through the misrepresenta- tion of a third party. 13 174 LEADING CASES. CASE IN BEIEF. Thia is only a repetition of the oft repeated story of misused confidence, where perfidy and dishonor inveigle unsus- pecting old age. A new railroad company had taken out letters of incorporation, sit Sandgate, England, and a wealthy old gentleman, named Mackinnon, desiring to see his section of the country prosper, purchased a number of shares of the company's stock. The company was sadly in need of money at one time, and their secretary, an unscrupulous man named Callow, visited old Mr. Mackinnon, and prevailed upon him to sign a guarantee for £3,000, to enable the company to borrow that amount of money on short time. In a few weeks Callow again appeared at the residence of Mackinnon with a paper similar in appearance, a-nd. requested him to indorse it, stating that it was another guarantee, and placing it before Mackinnon face downward. Relying upon the integrity of the secretary, Mackinnon signed the paper without turning it over and read- ing its face In a few days, the plaintiff, Foster, called at the residence of Mackinnon and presented a bill of exchange for payment. Mackinnon refused to honor the paper, saying that it was not his writing, and declaring that he had placed his signature on no such paper. Then Callow, the infidel secretary, comes for- ward and swears that he did sign the paper, recounting the circumstances under which it was done. The court held that the defendants signature did not bind him,^saying that it was " plain on priciple and on authority, that if a blind man, or a man who cannot read, or who, for some reason (hot implying negligence),' forbears to read, has a written contract falsely read over to him, the reader mis-reading to such a degree tliat the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterward signs; then, at least, if tiiere be no negligence, the signature so obtained is of no force, and it is ANSON ON CONTRACTS. 175 invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accom- pany the sign atuke; in other words, that he never intended to sign, and, therefore, in contemplation of law, never did sign the contract to which his name was appended. ENGLISH KULE. Where a contract is entered into by two parties through the willful, or otherwise, misrepresentation of a third party, the legal effects are declared void on the ground of mistake, the minds of the parties having failed to meet. i AMERICAN RULE. This rule is generally recognized by American Courts, still the contract is not held invalid, simply because " the mind of the signer did not accompany the signature," and through fraud he had been induced to sign an instrument materially different in legal effect from what had been represented to him. Where a man in full possession of his faculties and able to read, even though with difficulty, signs the paper, it renders him liable to a hona fide holder of the same in nearly every state in the Union, Michigan and Wisconsin excepted. Pift'er vs Smith; 57 HI. 527.' Douglas vs Malting; 29 la. 498. POLHILIi VS. WALTER. Decided in England, 1832. 9 Bing, 3'8; B. and Adol., 114; Anson, 138 Peinciple. — A case declaring it to be fraud in* law for a party to make representations which he knows to be false, and from which injury ensues, although the motives from which the representations proceeded may not have been bad. 176 LEADING CASES. CASE IN BRIEF. Peenambuco, Brazil, April 23, 1829. (£140, 16s, 8d.) Sixty days after sight of' this iirst of exchange (second and third of same tenor and date unpaid), pay to the order of Messrs. Turner, Brade & Co. one hundred forty pounds, sixteen shillings, eight pence, for value received. For Robert Lott. {Signed) J. B. Fox. ■ To Mr. Edward Hancorne, London, England. Prior to the year 1829, the linn of Hancorne and "Walter was conducting a counting house in London, England. Wal- ter desiring to retire from the business, a formal dissolution of partnership took place, Hancorne continuing the business upon the premises of the retiring partner, falter. In June, 1829, while Hancorne was absent from London, the above bill of exchange was presented at his place of business for acceptance. He being absent, the bill was left, and in a day or two a banker's clerk accompanied by Mr. Armfield, one of the partners in the firm of the payees. Turner, Brade & Co., called for it. "Walter informed them that Mr. Hancorne was still absent and would not return for a week or ten days and that they had better present it again. This the clerk refused to do, maintaining that it would be protested if longer delayed. Armfield also represented to "Walter that additional expense would be incurred by such protest, and further assured him that the bill was regularly drawn and correct. "Waiter, acting upon this assurance, and desiring to oblige his friends, accepted the bill as per .procitration: of Edward Hancorne, honestly believing that the acceptance would be sanctioned and the bill paid by the person for whom he professed to act. After this acceptance it was endorsed over by the payees. Turner, Brade & Co., until finally it came into the hands of ANSON ON CONTRACTS. 177 the plaintiff Polhill, a merchant who accepted the bill in pay- ment for a bill of goods, solely upon the strength of the representation made by Walter that he had authority to accept the bill for Ilancorne. Upon the retnrn of Ilancorne, and his learning of the trans- action, he expressed his regrets at the acceptance of the bill and when presented by Polhill at maturity for payment, the bill was dishonored. Action was brought against Hancorne by Polhill to recover paym'ent, but he resisted on the ground that he never accepted the bill and produced Walter as his princi. pal witness,^ upon whose testimony Polhill was non suited. Polhill then commenced an immediate action of deceit against the defendant Walter, to recover not only the amount of the bill of exchange, but also the costs of the trial with Hancorne, amounting in all to £196. The Court held that he was liable, and Lord Tenterdin, in giving judgment, said: " If the defend- ant, Walter, when he wrote the acceptance, and thereby in svlistance represented that he had authority from the drawee to make it, knew that he had no such authority, (and upon the evidence there can be ho doubt that he did), the representation was untrue to his knowledge, and we think that an action will lie against him by the plaintiff for the damage sustained in consequence." ENGLISH EULE. The making of a representation which a party knows to be untrue, and which is intended or calculated to, from the man- ner or mode in which it is made, to act on the faith of it, so that he may incur damages, is a fraud in law; and the party making such representation must be considered as having' intended to make it, to all who receive such bill in the course of its circulation, and will therefore be held liable in damages for all loss sustained by such misrepresentation. 178 LEADING CASES. AMERICAN RULi;. The majority of cases in this country hold: that by acting as agent for another when he is not, though he thinks he is, one tacitly and impliedly represents himself authorized with- out knowing the fact to be true, it is in the nature of a false warranty and he is liable. J3ut such liability is founded on the ground of deceit, and the remedy is hy an action of tort. Jefts vs. York, 10 Gush. 395; Noyes vs. Loring, 5,5 Me. 408; Johnson vs. Smith, 21 Conn. 627. WHEELTON VS. HARDISTY. Decided in England, April, 1856. 8 E. & B. 232; Anson, 149 Pbinciple. — A case determining the validity and effect of false and fraudulent statements made in an application for a Life Insurance Policy, by an innocent third party. CASE m BRIEF, Mr. Jodrell, upon whose account this action was brought, was a man with "great expectations," from a pecuniary stand- point; but physically and morally he was an imbecile; having in early manhood contracted questionable and intemperate habits which left him a physical and moral wreck. Fre- quently he experienced attacks of delirium tremens and epileptic fits, and was almost constantly under the influence of strong drink. Being a spendthrift as well, he could not retain sufficient funds about him to meet his demands. He would, '' in^ the course of events, should he survive his father, fall hbir to a large reversionary interest. Upon this "expectancy" he resolved to raise some money and for that purpose a])plied for a loan to the Norwich Union Reversionary Interest Company of which the plaintiff, Wheelton, was a trustee. The company agreed to make the loan upon the security of the reversionary ANSON, ON CONTRACTS. 179 interests of which he was "heir expectant." Having this in view, the company applied to the Eurjpean Life Insuraince and Annuity Company for an insurance policy for £5,0U0 ; and to the "Westminster General Life Insai'ance Association for a further insurance of £1,500 on Mr. Jodrell's life to cover their interests pro tanto (as far as it goes). Application blanks were made out by the different companies and sent to Secretray Norris of the Norwich Union lieversionary Interest i Company, who filled them out and answered the questions upon the sworn infoTTnation of Mr. J or dell and his friend^ who declared under oath that Mr. Jodrell was a man of sober and temperate habits^ was not addicted to strong drink; did not have delirium tremens or epileptic fits, and was a fit subject to take out a life insurance policy. The insurance policies were issued to the company and Jodrell received his money. As soon as he had received it, he immediately entered ■upon a career of dissipation and debauchery which speedily terminated in death. Thereupon the Norwich Union Eever- fiionary Interest Company demanded the money on their life insurance policies. The European Life Insurance Company, represented by Hardisty, the defendant; refused to pay its policy, averring that the statements made in the application blanks by Norris, the secretary of the Norwich Company, were untrue. Action was brought by Wheelton, representing the Norwich Union Eeversionary Interest Company, to recover the amount of the policy. It was clearly proven by Hardisty, that at the time the statements were made to the' European Life Assurance and Annuity Company, Jodrell was neither sober or temperate; that he was a sufferer from epileptic fits and delirium tremens; and that his habits were very question- able. But the plaintiff, Wheelton and all persons in the Nor- wich Company maintained that they believed the sworn state- ments made by Jodrell and his friends to be absolutely true, as deceit had been practiced on them also; and that when their secretary, Norris, made the statements, he had implicit 180 LEADING CASES. confidence in their veracity. The jury returned a verdict hold- ing that the plaintiff company was not guilty of practicing deceit or fraud upon the defendant company, and tliat they would be compelled to pay the Norwich Company the face of the policy. This verdict was afterwards sustained by the Court of Exchequer Chamber, at which time Judge Willes said: "There is nothing in law to make the truth of a statement a condition precedent to the liability of the defendants upon the policy, unless it were untrue to the knowledge of the plaintiffs, and therefore fraudulent the mere untruth would not avoid any policy in which it was introduced, the policy containing no stipulation to that effect." ENGLISH EULE. An untruth in the reprentations made to an insurer as t& the life insured will not affect the validity of a contract, unless they be made fraudulently, or unless their truth be made au express condition of the contract. AMERICAN EULE. This case is not in direct accord with the rulings made in the American Courts and by text writers, as "an untrue alle- gation of a material fact will avoid the policy, thoagh such allegation or concealment be the result of an accident, negli- gence or design." It is no reason to say that they were inno- cently made. Yery little difference is made in Marine, Fire, or Life Insurance by the American decisions. Vose vs. Eagle Life and Health Insurance Company. 6 Cush, 42. Campbell vs. New England Insurance Company. 98 Mass., 396. WARD VS. HOBBS. Decided in England, Dec. 7, 18S7. 3 Q. B. D. (C. A.) 150; 4 App. Cases 14; Anson 155. Principle. — A case deciding that non-disclosure, by parties in the case of ordinary contracts, is not fraud. ANSON ON CONTRACTS. 181 CASE IN" BRIEF. The defendant, Hobbs, was a peasant and stockraiser, resid- ing near one of the large stock markets of England. He had quite a drove of pigs, which, when almost ready for sale, became infected with an epidemic of typhoid fever and a great many died; whereupon he sent the remainder of them to New- berry cattle market to be sold at public auction. Knowing that the pigs were infected with a contagious disease, Hobbs ordered them to be exposed for sale, subject to all faults, and that no warranty should be given, and no compensation made in respect to any fault which might appear. No verbal representation was made by Hobbs to the plaintiff. Ward, as to the condition of the pigs. Ward bought thirty-two (32) of them, which had been examined by the government inspectors before being admitted to the market, when they showed no signs of disease. The sale took place among others, with the condition that no warranty would be given by the authori- ties with any lot, as all were open to inspection prior to pur- chase of same. After the sale Ward took the pigs to his farm and placed them in some stubble fields with others which he already had. These pigs , also became infected with the disease and many of them died, and out of the lot purchased of Hobbs thirty of the thirty-two died. Ward brought an action to recover, alleging as his grounds, that the exposure of the pigs in the market amounted to a representation, under the circumstances, that they were free of any contagious disease. The Court of Queen's Bench sustained this theory, but when carried up to the C»urt of Appeals, Lord Chief Jus- tice Cotton, in overruling the decision of the inferior court, said: "What is relied upon here as a representation is this: That the defendant, Hobbs, knowing that the pigs had an infectious disease, sent them to market. Is that evidence on which a jury could find, properly, that the defendant repre- sented that the pigs had not, to his knowledge, any infec- tious disease?" And the court held that it was not, exonerating Hobbs for not disclosing the defects in the pigs. 182 LEADING CASES. El^GLISH EULE. A vender of goods, chattels or merchandise, is under no lia- bility to communicate the existence of even latent defects in his wares, unless by an implication, he represents such defect& not to exist in things sold. AMERICAN EULE. This is the general rule followed in American courts, though it is believed that when a person sells an animal, knowing it has a contagious disease, and does not communicate the fact to the buyer, liQ is guilty of a fraud, and would be liable in an action on the case. But, generally speaking, the maxim Caveat Emptor (let this purchaser beware) applies. Jeffrey vs Bigelow, 13 Wend., 58; Cooley on Torts, 481; Contra. Hill vs Balls, 2 H. & N., 299. KEATS VS. liORD CADOGAIN. Decided in England, Jan. 20, 1851. 10 C. B., 591; Anson 155; Peinciplb. — A case determining the law in regard to a land- lord's liability, in letting a house, desired for immediate occu- pation, /bra teria of years, without disclosing that it was in a ruinous condition. CASE m.BEIEF. Lord Cadogan was the owner of a dwelling house in the County of Middlesex, England, and through his agent, Daniel P. Owen, leased it to the plaintiff, Kesits, for a term of three years, at a rental of £25 per annum. Keats did not go to inspect the dwelling prior to moving into it, and when he came to take possession, found the house badly delapidated and ANSON ON CONTRACTS- 183 ■Almost untenantable. He reported this state of affairs to Lord Cadogan, and requested him to do some repairing; but his complaints went unheeded. After several useless attempts to have the house repaired, a wind storm arose one night and blew a portion of it down, greatly damaging his furniture and severely injuring his wife. He brought an action on the case to recover special daraages for loss of time and services of his wife, while recovering from her injuries, aud claiming damages for loss of furniture, on the ground that Lord Cadogan, the defendant, knew the house to be in a ruinous condition and did not disclose the facts to Keats. The court held that no such action would lie, and in render- ing their decision in favor of Cadogan, Chief Justice J^rvis remarked: " It is not pretended that there was any warranty, express or implied, that the house was fit for immediate occu- pktion; but, it is said, that because Cadogan knew that Keats wanted the house for immediate occupation, and knew that it was in an unfit and dangerous state, and did not disclose that fact to the plaintiff, an action of deceit will lie. The declara- tion does not allege that the defendant, Cadogan, made any misrepresentation, or that he had reason to suppose that the plaintiff, Keats, would not do, what any man in his proper senses would do, viz,, make proper investigation and satisfy himself as to the condition of the house before he entered upon the occupation of it, there is nothing amounting to deceit," and defendant is not liable. ENGLISH KULE. There is no implied duty on the part of the owner of a house which is in a ruinous and unsafe condition, to inform a pro- posed tenant that it is unfit for habitation, and no action will lie against him for an omission to do so in the absence of an express warranty of its safe and tenantable condition. 184 LEADING CASES. AMERICAN EULE. The above rule has generally been followed in the United States to the extent of holdinsr, that there is no imolied war- ranty that the premises leased are fit for habitation; yet, if a landlord lets premises subject to a nuisance prejudical to life or health, it is his duty to inform the tenant of the exist- ence of such nuisance, and upon failure to do so, an action on the case may be maintained against him. Caesar vs Krautz, 60 N. Y., 229; Lucas vs Caulter, lOi Ind., 81. BKOWN VS. DUNCAN. Decided in England, 1828, 10 B & C 93 or 29; Anson 172 Peinoiple.— A case determining the illegality of contracts made in breach of those statutes which do no more than impose- a penalty upon the carrying out of the object of the contract. CASE m BRIEF. In 1825, five individuals under the firm name of Messrs. Brown & Co., were carrying on a partnership trade in the distillingof liquors. At, the same time one of the partners conducted a retail liqxior business within two miles of the dis- tillery, contrary to the license law which provided that all persons ■ engaged in the manufacture of liquors should have their names entered in the Excise book and upon the license, but Leslie Clan-k, the partner referred to, did not have his name entered either in the Excise book or upon the license, which was in direct violation of the law. In the same year (1825), there was a salesman living at Aberdeen, Scotland, named A. Glennin, who. desired an ap- pointment as agent to sell the liquors of this firm in the city of London. They agreed to employ him, provided he could furnish good security for the faithful performance of his duties of selling and collecting money for sales made. "^ ANSON ON CONTRACTS. 185 Duncan, the defendant, was kindly disposed toward Glennin and accordingly he agreed to pay to Brown & Co., all sums of money for which Glennin should become indebted, or should fail to account to the fii m. For three years, (from 1825 to 1S2S,) Glennin acted as agent for Brown & Co., in the city of London. At the end of tliis time he became bankrupt and indebted to the firm in the sum of £2,307, which he was unable to pay; whereupon Brown brought suit against Duncan tlie surety, who had agreed to make good all deficits inGlennin's accounts. Duncan refused to settle and set up as his defence that the contract was illegal, having been made with an illegal firm, as one of the firm names, Leslie Clark, did not appear in the Excise book nor upon the license accordinar to law. After reviewing the case the court held that the above facts were not suflicient to vitiate the con- tract, because the statutes were aimed for mere revenue regxi- latioiis, and the breach of them by any one of the partners with knowledge of the others did not render the trade carried on by the others so illegal as to deprive them of the right to recover the price of the spirits sold by the defaulterer Glennin. Judgment was rendered in favor of Brown \fe Co., in the snm of £2,307. ENGLISH EULE. If the statute be for the protection of the public, as well as 'he revenue; and if it be designed to further objects of pub- lic policy in relation to some trade or business, then a penalty amounts without doubt to a prohibition. But where the statute is solely for the purpose of facilitating and collecting revenue, then it is possible that the contract, though penalized, is not prohibited. ly6 LEAIJING CASES. AMERICAN EULE. The principles announced in this case are generally followed in the American courts. But there are-some decisions in sup-r port of the proposition, without qualifications, t\hat when a statute inflicts a penalty for doing a particular act, that act is, by implication prohibited and illegal. Fraer vs. Pliilbrick. 7 N. H.. 340. Bacon vs. Lee, 4 la. 490 GILBERT VS. SYKES. Decided in England, June 12, 16 East 150; Anson 176. Principle. — A decision which completely revolutionizes the law of wagers existing prior to 1812. CASE IN BRIEF, During the crowning days of Napoleon Bonaparte's career, when the star of his fame shown brightest in the zenith of worldly renown the cause of this a,etion had its inception and birth. At this time the '"iron heel of oppression" ground most heavily upon every French subject and menacing murmurs of dissension arose on every side of the great em- peror, threatening not only the possession of his throne, but also his personal security and his life- It was in 1802, that Gilbert and Sykes,vtwo loyal English subjects, were discussing the situation of the French emperor and the probabilities of his assassination by some dissatisfied subject. Sykes was of the opinion that Napoleon's hours were num- bered and that it was, only a question of a few days as to when he would be slain. Gilbert had more confidence in the shrewd emperor's generalship and did not think that his life was in jeo- pardy. So positive was Sykes that the signs of the times indi- cated a speedy removal of the "Little Corporal," tliat he was willing to wager upon it, therefore, he said: "Gilbert, if you ANSON ON CONTRACTS. 187 •will pay me one hundred guineas to-day, I will give you one guinea a day as long hereafter as Napoleon Bonaparte lives." Gilbert immediately accepted the wager and paid over to Sjkes the one hundred guineas. This was on May 31, 1802, and Sykes continued to pay the guinea each day until Dec. 25, 1801, and still Napoleon lived on, nor did he die, as the world knows, until 1821. But in 1804, Sykes refused to pay another guinea, and in 1812 Gilbert brought suit to recover the amount due on the wager, which by this time had aggregated £2296, or about $11,480. While the action was perfectly legal, and the wager by the old law ^^as due Gilbert, the court departed from the old rule and held that the action would not lie in such an idle wager, asserting that the court had no time to try such trifling cases when their time and attention should be occupied in hearing more important cases ; and that such a case must be put off until such time when the court has nothing else to look after. A verdict was rendered in favor of the defendant, Sykes, holding that he was not liable for the money due on the wager^ at which time the court made the following ruling: ENGLISH RULE. A bet upon the duration of the life of Napoleon Bonaparte is unenforceable, as tending on the one hand to weaken 'the patriotism of an Englishman and on the other to encourage the idea of the assassination of a foreign ruler, and so provoke retaliation upon the person of our own sovereign: hence mak- ing such wager void on the grounds of immorality and im- policy. AMERICAN RULE. The American courts have held that all wagers upon the subject in which the parties have no interest are void. And 188 LEADING CASES. nearJj every state in the Union has passed statutes condemn- ing wagers of every kind tolerated by the old common law. Love vs. I-Iarvey, 114 Mass. 82; Eldr'ed vs. Malloy, 2 Col. 320. SCOTT VS. AVERY. Decided in England July 10, 1856, 5 H. L. C. 811; Anson, 185. PiiiNciPLE. — A case deciding that agreements in a con- tract to refer matters in dispute to a Comrhittee of Arbitra- tion, are not necessarily agreemeifts which tend to pervert the course of justice nor ouster the court of its jurisdiction; and under certain conditions will be enforced as valid. CASE IN BRIEF. In 1856, Scott, the plaintiff in this case, had his ship, "Alex- ander," insured in three different insurance companies, of which himself and the defendant Avery, were both mem'bers. Each policy called for £2,400 in case of a destruction of the vessel. During the voyage upon which the ship subse- quently sailed, a storm arose and the vessel was badly injured. This action was caused by a dispute in regard to the manner of settling the amount of loss and damages occasioned the vessel by the sto]-m. Action was commenced against one company only, that of the Kew Castle A 1 Insurance Associ- ation, represented by the defendant Avery. One of the con- ditions of the policy was, that the sum to be paid to any in- surer for loss, upon proof of such loss, should in the first instance be ascertained by a committee. But if a difference should arise between the insurer and the committee " relative to the settling of any loss or a claim for any damages, or other matters relating to the insurance," this difference was to be ■ referred to arhitrators in the way and manner pointed out in ANSON ON CONTRACTS. 18!:> the conditions, " provided always that no insurer who refuses to accept the amount settled upon by the committee shall be entitled to entertain any action at Law or suit in Equity on his policy," until the matter has been decided by the arbitrators, and then only for such sum as the arbitrators shall award. And the obtaining of the decision of the arbitrators was de- clared to be a condition precedent to the commencement of an action. When Scott called for a settlement from the New Castle A 1 Insurance Association, for damages done his vessel and losses sustained by the storm, they proceeded to settle in con- formity with the rules of the association which bound both Scott and Avery. Between Scott and the committee appointed by the company to confer with him in reference to his losses, a difference and dispute soon arose in regard to the amount which Scott should be paid for loss sustained and repairs placed upon the ship. Avery, the defendant, then in behalf of the company, agreed to refer the matter to arbitrators, ac- cording to the rules of the company. This Scott refused to do, declaring that such a course would have a tendency to oust the courts of their jurisdiction and thus be adverse to public policy. The court held that the rules of the associa- tion regulating the manner of settling differences and ascer- taining damages were valid, and until an award was made by the arbitrators, Avery could not maintain his action, and a verdict was rendered for defendant with costs of the suit. ENGLISH RULE. When a contract contains a condition which provides that disputes arising out of it shall be referred to arbitration, the validity of such a condition depends upon rather a fine dis- tinction. But where the amount of damages sustained ly a hreach of the contract is to he ascertained hy specific arhi- tration before any right of action arises, tke condition is good, and will le sustained. 14 190 LEADING CASES. AMERICAI^ EULE. This is regarded as a leading case and is a departure from the doctrine, as formerly understood,. that arbitration clauses in contracts are void. The case has been generally followed in American courts and the principle applied to contracts for the-construction of railroads, canals, and other works involv- ing: numerous details. Holmes vs. Richet, 56 Cal., 307. Reed vs. Washington Ins. Co., 138 Mass, 572.' BALDY VS. STEATTON. Decided in Pennsylvania, U. S. A., July 11th, 1849. 11 Pa. St. 316; Anson, 187. Peinciple. — A case laying down the law in regard to the ralidity of contracts inade in consideration of future illicit intercourse. CASE IN BRIEF. Paul R. Baldy was a resident of Pennsylvania, where h^ met and became acquainted with Miss Fanny Stratton. Their friendship ripened into devotion, and his attentions toward her became very marked by both friends and relatives. He was a frequent visitor at her iome and appeared particularly solic- itous in regard to her welfare. Miss Stratton was held in the highest esteem by her young lady friends, and Baldy, while considerable of a braggadocio, was fairly well respected. The young couple continued their friendly relations- for some time when suddenly, and without apparent cause, Baldy ceased to visit the home of Miss Stratton an(J"it became known that she enceinte. She immediately began an action on the case against Baldy for breach of promise to marry and claimed damages in the sum of $5,000. ANSON ON CONTRACTS. 191 At the trial, which was quite a sensational one, the testimony turned upon the following note which was introduced in evi- dence hy Ba-ldy against Miss Stratton: "I swear Paul, with my dying breath, that you promised to marry me if anything hap. pened, and I told you you would not. You said: 'I call God to witness I will if anything happens.' And I can bring for- ward an other person that you told them the same thing. And you solemnly promised' before all this happened — Fanny." Baldy admitted that he promised to marry Miss Stratton, but npon the condition that she would permit the defendant to have sexual intercourse with her, which she did. Baldy set up the defense that the agreement was illegal on the ground that a promise made in consideration of future illicit inter- course is void as bemg given upon an immoral consideration, and to show that this was the basis of his promise he intro- duced the above note. The court held that while the above rule was unquestioned law, yet it did not apply in this case, having come to the conclusion from testimony given and the interpre- tation of Miss Stratton's note that the promise of marriage had been made to her before thfe subject of illicit intercourse had been mentioned. A verdict was accordingly rendered by the lower court and sustained by the Superior Court awarding Miss Stratton dam- ages in the sum of $3,000 as a pecuniary compensation for the injustice practiced upon her by Baldy. ENGLISH KULE. A promise made in consideration of future illicit intercourse is given upon an immoral consideration and is void whether made by parol or under seal. Ayerst vs. Jencins, 16 Eq. 275. 192 LEADING CASES. AMEEICAN EtJLE I The rule is the same in America, but many things are admit- ted to show that there was a pre-existing promise of marriage which is binding even after intercourse has taken place, as in the case under discussion. Hawks vs. Nagle, 54 Cal. 5i; Forsyth vs. State, 6 Ohio 19. BEAL VS. CHASE. Decided in Michigan, U. S. A., April, 1875. 31 Mich., 490 •, Anson lo8. Peincipal. — A decision abrogating the old law existing prior to 1870, regulating contracts made in restraint of trade. CASE m BRIEF. Some years ago an individual named Dr. Chase, founded a printing and publishing business in the city of Ann Arbor, Michigan. Within a short time he had succeeded in estab- lishing a large and lucrative business under the commercial name of Dr. Chase's Steam Printing House, where he edited a newspaper and published and, sold, with a number of other books, the celebrated Chase Recei'pe Book. Sometime after the business had grown very prosperous, negotiations were commenced between Dr. Chase and Rice A, Beal, the plaintiff, for a purchase of the entire plant. A sale was eventually effected for a valuable consideration, and by the terms of the agreement Dr. Chase was to turn over ta Beal the entire printing and publishing establishment, together with the good will of the business; the newspaper and copy- rights of certam books ; and with the express understanding ANSON ON CONTRACTS. 193 that Dr Chase should not again engage in the same line of work within the State of Michigan, so long as Beal should continue the business in Ann Arbor. . The agreement was signed by both parties, the transfer of the property was effected and Beal moved into the establishment and commenced business, but within a short time thereafter Dr. Chase, in violation of his contract, set up another printing house and got out a revised edition of the Chase lieceipe Book, seriously damaging the trade of Beal, who at once sued out a writ of injunction restrain- ing Chase from violating the rights secured to him (Beal,) by theternis of the agreement. Dr. Chase defended his action and sought to have the injunction dissolved on the ground that his promise not to carry on a speciiied business within the State, was void, as being against public policy, because he was thus depriving himself of the means of exercising his skill and earning his living. The Court held that while the law was strongly in his favor, yet they did not consider this an unrea- sonable restraint of trade nor against the policy of the law, even if it did extend substantially over the entire territory of the state. Accordingly the decision was rendered in favor of Beal making the injunction perpetual. ENGLISH EULE. (a) Consideration is required to support a promise in re- straint of trade, even though the promise is made under seal. Mallan vs. May, 11 M. & W. 665 (b) Until quite recently it was regarded that the restraint may be unlimited as to time but must not be unlimited as to space. Beal vs. Chase, 31 Mich. 490 (c) The restraint as to space must be reasonable in the judgment of the Court. 194 LEADING CASES. AMERICAN ECJLE. Prior to 1S70: A contract wherein one of the parties prom- ises not to carry on as pecified business at any place within the State is void. "Wright vs. Eyder, 36 Cal. 357; Tliomas vs. Miles, 3 Ohio St. 274. Within the last twenty years this rule has been materially modified in many of the States, and in Michigan entirely abrogated by the case under consideration, which holds than it is not an an unreasonable restraint of trade when the business sold extends substantially over the whole territory of the state. CANIVAN VS. BKYCE. Decided in , England, 1819, 3 B. and Aid. 179-255; Anson 192. Peinoiplb. — A case which held than when the loan of money or the supply of goods is intended to further an illegal purpose, neither the money lent nor the goods supplied can be the subject of an action to recover. CASE IN BRIEF. At the time the cause of this action arose James Am6s and Charles Sutherland were transacting business under the firm name of Amos & Company, in British India. In March, 1814, without the knowledge or consent of his partner, Sutherland, Amos entered into an illegal stock jobbing transaction by which he lost a large sum of money. When the payment of the the debt came due Amos was unable to meet the loss, either by his own funds or those of the partnership. ' The defendant, Bryce, was at that time a wealthy lieutenant in the ser- vice of the East India Company, and to him Amos applied for relief. Bryc6 loaned Amos an amount sufficient to liquidate ANSON ON CONTRACTS. 195 the debt and the money was applied for that purpose. The partners, to secure Bryce for the loan, gave him a bond for the money received. Cannan, the plaiutifE in this case, was a wholesale merchant from whom Amos & Company had pur- chased three cargoes of merchandise. After tlie disastrous speculation of Amos, the Urm went into bankruptcy, subse- quently making over three deeds of assignment to Bryce, one' for each cargo, for the money loaned. Cannan was appointed j assignee of the bankrupt stock of goods. Bryce sold the three cargoes but failed to realize a sum sufficient to cover the in- debtedness. Caiman then brought an action in assumpsit to recover the value of the cargoes, which he asserted to be a part of the property of the bankrupt firm of Amos & Company. The court held that the lending of the money by Bryce, the giv- ing of the bond by Amos & Company to Bryce, and the assign- ments under the bond Were each and all void, because from the evidence given there was not the least doubt in the minds of the <50urt that the defendant, Bryce, knew the illegal object to which his money was to be applied. Chief Justice Abbott, in rendering judgment, said: "Then, as the statute has abso- lutely prohibited the payment of money for compounding dif- ferences, it is impossible to say that the making of such a pay- Tnent is not an unlawful act; if it be unlawful in one man to ])ay how can it be lawful for another to furnish him with the means of payment? It will recollected that / am speaking of a case wherein the means were furnishrd with a full know- ledge of the object to which they were to b^ applied, and for the express purpose of accomplishing that object." Held that Cannan could recover the value of the cargoes. ENGLISH EULE. Money lent and applied by the borrower for the purpose of settlinc losses on illegal stock jobbing transactions, to which the lender was no party can not be recovered. There is noth- 196 LEADING CASES. ing illegal in the loan of money or the supply of good^; but if these are known to be intended to further an illegal purpo^e, neither the money lent nor the goods supplied can form th& subject of an action. The whole transaction is void. Cannan vs. Bryce ; McKinnell vs. liobinson, 3 M. W. 435 ; Pearwe vs. Brooks, L. K. 1 Exch. 213 AMERICAN RULE. The weight of American authority is in accord with the de- cision of the Supreme Court of New York,, which, says: A man who sells goods will not be deprivedlof his right of payment unless (a) It be made a part- of the contract of sale, that the prop- erty shall not be used for an unlawful purpose, or (b) Unless the vendor does something beyond making the Bale in aid or furtherance of the unlawful design, or (c) Unless the illegal act contemplated, is such that no man having a knowledge of the design can I'emain neutral without being in a just sense a criminal himself. Tracy vs. Talmadge, 14 N. Y. 162, 215. Rose vs. Mitchell, 6 Cul." IQS. As to the loan of money, the courts hold that one who loans money to another '•^for the express p'urpose " of accomplish- ing an illegal object, cannot recover his loan. Culler vs. Welsh, 43 N. H. 498; Whit&vs. Buss, 3 Cush. 450. PEARCE VS. BROOKS. Decided in England, April 17, 1866, 1 Exch. 214; Anson 193. Principle. — A decision sustaining the rule laid down in Cannon vs. Bryce, that where the loan of money or the supply of goods is known to be intended to further an illegal pur- pose, neither the money lent nor the goods supplied can form the subject of an action^ as the whole transaction is void. ANSON ON CONTRACTS. 197 CASE IN BRIEF. Pearce, the plaintiff in this action, composed one of a firm of coach builders doing an extensive business in England, and in 1865-1866. They sold to the defendant, Miss Brooks, a miniature brougham for £50, to be paid for /in installments within one year. One of the conditions of the agreement was that at any time within the year she could return the carriage at her option, by paying the rental value of it and extra for all damages done, reasonable wear and usage excepted. By the agreement, if she returned the carriage before the second in- stallment 'fell due she was to pay,the firm as a rental fee the sum of 15 guineas, about ($T5). She returned the brougham which had been badly used, but failed to pay the fifteen guineas, whereupon Pearce brought an action to recover for the non-payment of the rental value of the vehicle. There was nothing apparently unlawful in the terms of this agree- ment which would restrain the plaintiff from recovering the rental price, but when the testimony was introduced, quite a different light was thrown upoii the contract. From the evi- dence it appeared that Miss Brooks was one of the demi- Tnonde of the city, and that she had purchased this brougham for the express purpose of attracting young men to her cus- tom; it further appeared in evidence that Pearce was aware of this fact, and knew that th,e pay for the brougham was to be derived from the proceeds of her lust. The jury thereupon concluded from the nature of the contract and the article sup- plied, that it was given for the furtherance of an immoral pur- pose. In holding that Pearce could not recover Justice Bram- well observed; "My difficulty was, whether, tliough the defendant hired the brougham for that purpose, it could be said that the plaintiffs let it for the same purpose. In one sense it was not for the same purpose. If a man were to ask for dueling pistols, and gay ' I think I shall fight a duel tomorrow,' might not the seller answer, ' I do not want to know your purpose; I 198 LEADING CASES. have nothing to do with it; that is your business; mine is to sell the pistols, and I look only to the profits of trade.' ITo doubt such an act would be immoral, but I have felt a doubt whether it would be illegalj and I should feel it still, but the authority of Cannon vs. Bryce and McKinnell vs. Eobinson con- cludes the matter." .fudgment was rendered in favor of Miss Brooks, and the following rule established. ENGLISH EULE. One who makes a con'tract for sale or hire, with a know- ledge that the contracting party intends to apply the subject matter of the contract to an immoral purpose, cannot recover upon the contract. It ^ is not necessary either, that he should expect to be paid out of the proceeds of an immoral action. AMEKICAlSr EULE. The American courts have generally disapproved the English rule in this case, holding that one who loans money to another "/oy the express purpose " of accomplishing an illegal object, cannot recover his loan, as the doctrine laid down in Gannon v%. Bryce and McKinwell vs. Rohinson^ and some courts hold, that" aside from felonies or crimes involving great moral turpitude," the mere knowledge of the lender or vendor, that the money loaned or the property sold is designed to be applied to an unlawful purpose will not prevent a lewal recovery based on such loan or sale. White vs. Buss, 3 Cush. 450; Cutler vs.- Welsh, 43, N. H. 498. Williamson vs. Bailey, 78 Mo., 636; Lewis vs. Alexander, 51 Texas, 578; Howell vs. Stewart, 54 Mo., 404. ANSON ON CONTRACTS. 199 TAYLOR VS. BOWERS. Decided in England, February 15, 1876. 1 Q. B. D., 291 ; Anson 202. Peinciple. — A case holding that where goods were sold or money lent for an illegal purpose, such an illegal purpose is not affected until the expenditure takes place; and the parties may be restored to their original position at any time before the illegal purpose is carried out. CASE IN BRIEF. Taylor, the plaintiff in this case, was a machinist, who carried on an extensive business at Ranton, England. As a part of his stock in trade he possessed a steam engine, threshing machine and accompanying paraphernalia. In 1868, being called to America, he left his son in charge of affairs during his absence, and upon his return home the next year, he discovered that through youthful inexperience, his son had contracted a heavy indebtedness, which was claimed against the father, having been incui:red on his account. Desiring to fleece his creditors and avoid these claims, he conferred with his nephew, an unprincipled attorney, for advice on the subject. Allcock, (his nephew), directed Taylor to turn over all his goods to him (Allcock), by making out flctitious bills of assignment in Allcock's favor, as a pretended consideration for the assign- ment of the goods, which was done. Among others of the creditors who held claims against Taylor was the defendant Bowers, whom he owed £100, and who was also cognizant of the fraudulent transaction which had taken place between Taylor and Allcock. After having made the assignment to Allcock, Taylor held two joint meetings with his creditors, but no satisfactory terms were agreed upon. Some months after this illegal assignment, Allcock put up the goods at public 200 LEADING CASES, auction, and Bowers, the defendant, was the purchaser, re- ceiving an executed bill of sale from AUcock for the alleged purpose of securing Bowers in his claim against Taylor. Taylor himself was not a party to the contract, and in fact was absolutely ignorant of it. "When he learned what had taken place, he commenced immediate action against Bowers, demanding the return of his property. Bowers resisted, on the plea that the assignment to AUcock by Taylor was legal, and therefore the latter had the authority to make the deed of sale. The court held that as nothing had been done by Taylor in respect of the fraud co'mtemplated against the creditors, he was entitled to recover, because the fraudulent perpetration not having been carried out, Taylor was not relying upon the ■ illegal transaction, and was therefore entitled to repudiate it and recover the goods from both Bowers and AUcock, as one had no better title than the other, botii being illegal under^the law. Judgment was rendered against Bowers in favor of Taylor. ENGLISH RULE. Until an illegal purpose is carried out by the on© who has contributed goods or money for such a purpose, which goods or money remain undisclosed of, there is a locus ponie- tentiae (or an opportunity to withdraw). UNITED STATES EULE. The principles in this case have been repeatedly followed in American courts, especially in such cases as thos"e where money is deposited on abet, with a stake holder, in games of , chance, the depositor may recover the money of a stake holder at any time before it is paid over to the winner, if he demands it. Skinner. vs. Henderson, 10, Mo., 205; Bank vs. Wallace, 61, N. H. 2i. ANSON ON CONTRACTS 201 LUaiLEY VS. GYE. Decided in England in 1S53, 2 E. & B. 216; Anson 210. Principle. — A rule of law holding that an action will lie against any third person who induces a servant to leave the eervices of his master. ' CASE IN BRIEF. - * The very remarkahle decision in this case was rendered in 1S53, and frora that time it stood alone in legal history with- out a parallel, until 1881, when another case canoe before the Court of Appeals, offering precisely the same points for decision. Benjamin Lnmley, the plaintiff, was the manager of her Majesty's The Queen's Theater, in London, and in 1853^ he journeyed to the city of Berlin, Germany, where he secured the services of the talented German singer, Miss Johanna Wagner, a,jn'ii)ia donna who at that time was captivat- ing tlie music-loving world by her charming voice. By the terms of the agreement, Miss Wagner was to sing in Lumley's Theater for a period of three months, from April 15th to July 1.5th; and during this interval she was not to use her talents or sing elsewhere without written authority from Lumley. For a time the terms of the contract were fully complied with, until the defendant in this case caused the agreement to be broken. Frederic Gye, the defendant, was the manager of the 'Covent Garden, a rival theater, and, with a knowledge of the agreement which bound Miss Wagner, he persuaded her to quit the service of Lijmley before the expiration of her time and enter upon an engagement at the Covent Garden Theater, at a greatly increased salary. The conduct of Miss Wagner caused Lumley great financial losses and heat once commenced an action against Gye to recover damages for losses sustained in the enticing away of his actress. Lumley based his right '202 LEADING CASES of action upon the ground that an action will lie against any person who procures the breach of any kind of a contract ; but if that were not so, an action would certainly lie for induc- ing a servant to quit the services of his master. Accordingly the Court was called upon to answer two questions: "1. Does an action lie for procuring the breach of any contract? 2. If not, then does the exceptional rule applicable to the contract of master and servant apply to the manager of a theater and the actors whom he engages to perform?" With one exception (Justice Coleridge dissenting) the Court answered both these questions in the affirmative. Judgment was therefore rendered in favor of Lumley, awarding him damages for the losses sus- tained. ENGLISH EULE. Aft action lies for the malicious procuration of a breach of contract to give exclusive personal service for a certain time; equally whether the employment has commenced, or is only in -fieri (in process of formation), provided the procurement be during the subsistence of the contract and then produces damages, and to sustain such an action it is not necessary that the employer and the employe should stand in the strict relation of master and servant. As the act would lie for the malicious procuration of the breach of any contract, though not for per'sonal services, if by the procuration, damages were intended to result and did result to the plaintifE. Brown vs. Hall, 6 Q. B. D. 339. AMERICAN EULE. There is no controversy over the proposition that an action will lie for wrongfully enticing away another's servants or apprentices. Woodward vs. Washburn, 3 Denio, 269. The same reasons as those given in Lumley vs. Gye apply to every ANSON ON CONTRACTS. 203 case where one person maliciously persuades another to break any kind of a contract with a third person. It is not confined to contracts oi personal services. Jones vs. Stanley, 76 N. C. 355. A man may advise another to break a contract, if it be not a contract for personal services. He may use any lawful influences or means to make his advices prevail. Heywood vs. Tillson, 73 Me. (Latest decision 1883.) PKICE VS. E ASTON. Decided in England, 1833. 5 B. & Add. 433; 6 Carr & Payne 98; Anson 212. Principle. — A decision ruling that a man canhot acquire rights under a contract to which he is not a party, unless it amounts to a declaration in trust. CASE m BRIEF. John Price, the plaintiff in this case, was the owner of a timber carriage, which he sold to his brother William for a stipulated sum, all of which he received except £13, which was to be paid on a certain day. John Easton, the defendant, who was at that time needing some labor done, entered into an agreement with William Price, by the terms of which William was to work for Easton at a fixed salary for a definite time, leaving his wages uncollected. In consideration for such services Easton was to " undertake and promise " to pay the £13 indebtedness to John Price, thus liquidating the obligation of William on the timber carriage. William Price went to work and complied with the terms of the contract, performing the services and leaving his salary in the hands of Easton, whereupon John Price demanded the payment of the £13 from Easton, which he refused to make. Suit was commenced by Price to recover the £13 from Easton, who set up as his defense that Price could not acquire a right of action under a 204 LEADING CASES. contract to which he was not a party. The Court of Queen's Bench sustained this defence, holding that Price could not recover, because he was not a party to the contract. This de- cision was unanimously given, each member of the court giving his individual reasons for so ruling. Lord Chief Justice Den- ' man declared that the declaration failed to " show any considera- tion for the promise moving from the plaintiff to the defend- ant," (Price to Easton). Justice Littledale gave as his reasons that " no privity is shown between the plaintiff and the defend- ant." Justice Taunton thought that it was " consistent with the matter alleged in the declaration that the plaintiff may have been entirely ignorant of the agreement between WilKam Price and the defendant Easton," and Judge Putnam declared that" there was "no promise to the plaintiff alleged." Judg- ment was rendered in favor of the defendant Easton, holding that he was not liable for the money claimed. ENGLISH EULE. This is the inflexible rule in England, that when the plaintiff 6ues upon a promise rr^ade by the defendant to a third person, that.in consideration that the third person work for him, he would pay the plaintiff a sum of money; that plain- tiff cannot recover, because he is not a party to the contract and did not show any considei-ation for the promise moving from the plaintiff to the defendant. And " no promise to the plaintiff alleged." AMERICAN RULE. This is not the inflexible rule in the United States, as much depends on the nature of the contract, and the rule itself is subject to various exceptions. Independent of the Codes, the prevailing rule in America seems to be that a party may main- tain assumpsit on a parol promise made to another for his benefit, Hendrick vs. Lindsey, 93. U. S. 143; Bristo vs. Lane, 21 111. 194; Contra Millard vs. Baldwin, 3 Gray 4S4. ANSON ON CONTRACTS. 205 STOCKS VS. DOBSON. Decided in England April 21, 1853. 4 D. M. & G. (Eng. Chan. Rpts.) 11; Anson 232. Peinciple. — A ease wherein the judges held that if a mort- gage be assigned by the mortgagee without notice to the mortgagor, and interest be afterwards paid by the mortgagor to the duly authorized agent of the mortgagee, the money so paid though due to the assignee, cannot be recovered by him from the debtor. CASE m BRIEF. In 1815 a man named Jackson died, leaving an estate in trust for one John Dobson, whom he named as executor of his estate. After Jackson's death, a promissory note signed by him was discovered in the possession of a man named W. Peel, which remained unpaid. Dobson, as executor of the estate, paid the interest on this note for some fifteen years, until 1830, at which time domestic dissensions arose in the family and he suddenly disappeared, leaving his affairs in an unsettled condition. He was also the owner of a hotel resi- dence, know as The Anchor, which he left without instructions as to what should be done with it. Having waited until 1836 for a settlement of the note, without success, Peel, the holder, sued and obtained a judgment pn same. Dobson had a broth- er-in-law named Watson, who purchased this judgment from Peel for £146 15s , and who also took possession of the Anchor Hotel. Watson held' the judgment until 1842, receiving his interest in it from Dobson, with whom he was in regular com- munication. At this time (1842) he mortgaged the judgment to Messrs. Stocks, the plaintiffs in the case, and also made an assignment of the mortgage to them, without giving Dobson notice of such assignment. Watson then made a parol agree- ment with Dobson, who knew nothing of the mortgage or the- 206 LEADING CASES. assignment to Stocks, to pay off the judgment, which was done. Stocks then brought suit against Dobson on the deed of assignment and sought to recover the value of tha judgment. JBut the court held that Stocks could not recover on a debt which had already been paid to a duly authorized agent, and in laying down the rule Lord Justice Turner observed: " The debtor is liable at law to the assignor of the debt, and at law must pay the assignor if he sues in respect of it. If so, it follows that he may pay without suit. The'payment of the debtor to the o.isignor discharges the debt at lau\ The assignee has no legal right and can only sue in the assignor''s name. How can he sue if the debt be paid? If a Court of Equity laid down the rule that the debtor is a trustee for the assignee, without having any notice of the assignment, it would be impossible for a debtor to safely pay his debts to a creditor. The law of the Court has therefore required notice to b'egiven to the debtor, of the assignment, in order to perfect the title of the assignee, and equitable titles have priority according to the priority of notice.''^ Judgment was rendered in favor of Dobson, the defendant. ENGLISH RULE. "Where a person becomes liable to another, he should know to whom his liability is due; and if he receives no notice that it is due to another party than the one with whom he origin- ally contracted, he is entitled to the benefit of any payment which he may make to his original creditor. AMERICAlSr RULE. The doctrine that " Equitable titles have priority according to the priority of notice," that as between successive pur- chasers of a chose in action, he will have the preference who first gave notice to the debtor, if he be even a subsequent pur- chaser, is the rules of the Supreme Court of the United States ANSON ON CONTRACTS. 2()7 and other courts. But many American Courts hold that equitable titles have priority according to priority of time,' that the assignment of a chose in action is complete without notice to the debtor, so far as the rights of purchase other tlian the debtor may be involved ; that the purchaser must abide by the case of the person from whom he buys and that he can take no rights not possessed by his assignor. Judson vs. Corcoran, 17 How. 615; Thayer vs. Daniels, 113 Mass. 129; Parsons on Contracts 227. KEPPELL VS. BAILEY. Decided in England about 1800, 2 Mylne &, Keen 517; 8 Cond. Eng. Chan. Epts. Ill; Anson 234—235. Peinciple. — A decision holding that where a man endeavors to create restrictions on his land which are not included in the circle of rights in. re alinia, known to the Common Law, he cannot affix those rights to the land so as to bind subsequent owners. CASE IN" BRIEF. The Monmouthshire Canal Act provided, that upon all aux- iliary railroads, made by private individuals, under the authority of the act, the tolls on such auxiliary roads should not exceed the rate of that charged by the Canal Company which for lime-stone and iron-stone was 2 ^d. per ton per mile. This act also empowered the Canal Company, by a satisfactory agreement with the knd owners, to construct, itself, railroads on which tolls not exceeding 5 d. per ton per mile might be charged. During the closing yearS of the last century a number of land owners, owners of iron works, and among others the lessees of an extensive y)lant known as the Beaufort Iron Works, formed a joint stock company and under the powers given them by the Monmouthshire Canal Act constructed a railroad 208 LEADING CASES. connecting a limestone qnarry Imown as the Tievil Quarry, with several jron works, among them the Beaufort works, iand also with railroads of the Canal Company. By the terms of this partnership deed, which was dnly ex- ecuted in 1795, for the railroad company, the lessees of the Beaufort Iron Works agreed for themselves, heirs, adminis- trators, assigns, etc., tiiat so long as the covenant should hold, the Beaufort Works was to procure all the limestone used, from Trevil Quarry; and that this limestone should he carried from Trevil Quarry, and the mines to Beaufort Works, over the Trevil railroad only, at a toll of 5d. per ton per mile for the transportation of same. Some years subsequent to tlie signing of this compact, Bailey, the defendant, purchased the Beaufort Iron Works, with a full knowledge of the partnership deed, and the obli- gations imposed upon the assigns of the Beaufort Works in consequence of such deed. Considering the rate of toll for transportation too high, he constructed under the powers of the canal act a new railroad, which he used for transporting limestone and ironstone, contrary to the obligations in the partnership deed. Keppell, the plaintiff in this case repre- senting the shareholders of the Trevil Railroad Company, tiled an injunction, restraining Bailey and his agents from using the new railroad, or any other road except the Trevil road for carrying their commerce. The plaintiff company set up as their defense a willful viola- tion of the terms of the covenant entered into by the lessees of Beaufort Works in 1795. The court held-that while the terms of the covenant had been violated they could not perpetuate the injunction, because the deed itself was invalid, and in giv- ing judgment for the defendant Bailey, dissolving the injunct- tion. Justice Lord Brougham thus expounded the law: "It must not be supposed that incidents of a novel kind can be devised and attached to property, at the fancy or cajjrice of the owner. Great detriment would arise and much confusion of ANSON ON CONTRA-CTS. 209 rights, if parties were allowed to invent new modes of hold- ing and enjoying real property, and to impress upon their lands and tenements a peculiar character, which would follow them into all hands however remote." Judgment dissolving the in- junction was rendered in favor of the defendant, Bailey. ENGLISH RULE. The covenant does not run with the land so as to bind assignees at law; and a court of Equity would not, by holding the conscience of the purchaser to be affected by the notice, give the covenant a more extensive operation than the law allowed to it. Also the covenant securing a toll of 5d. pfer ton to the Lord of the Trevil Railroad was a fraud upon the Canal Company and Legislature, and therefore ought not be specifi- cally enforced by injunction. AMERICAJSr RULE. The benefit of a covenant passes with the land to which it is incident, but the burden of liability is confined to the or- iginal covenantor, unless a privity of estate between him and the covanantee exists, or is created at the time the covenant is made. Cole vs. Hughes, 54, N. Y. 444; Dorsey vs. St. Louis R. R. Co. 58 111., 65; Kennedy vs. Owen, 136 Mass., 201, CHAMEKLAIN VS. WILLIAMSON. Decided in England, 1813, 2 M. & S., Vol. I, Book II, 408- 409; Anson 236. Pbinciple. — A breach of contract which involves a purely personal loss, does not confer a right of action upon the execu- tor of such deceased person. 210 LEADING CASES. CASE IN BRIEF. In 1812 Anne Otiamberlain was conducting a boarding Bchool in England. Sometime previous she had become acquainted with tlie defendant, Williamson. He soon became a frequeiit visitor at her residence and iinally made to her a proposition of marriage. She accepted his offer and promised to become his wife. Preparations were commenced for the marriage, and in the fall of 1812 it was decided between her- self and Williamson that she should close her boarding school on the following Christmas; but in Iliovember prior to the closing of her school, a change came over Williamson and he broke off the engagement, ref usi ng to have anything more to do with his affianced. The blow was so severe on Miss Chamber- lain and her mental anguish was so great that she was thrown into an illness from which she never recovered, and in May, 1813, she passed away. This action of assumpsit was brought by John Chamberlain, her brother, who had been appointed administrator of his sister's estate, against Williamson, to recover damages on a breach of promise to marry Anne Cham- berlain during her life. Chamberlain averred that his sister, having confided in the promise of Williamson to marry her, had remained sole and unmarried tmtil her death, and at many different times during her life, she had told the defendant that she was ready and willing to be married, but at each time he refused. Williamson did not deny these statements, but defended his action on the ground that such an action would not lie, as it was merely a 'personal loss, and it did not appear that the breach of the contract had resulted in damage to the personal estate. The jury in the lower court gave a verdict for the plaintiff. Chamberlain, in the sum of £200; from this verdict an appeal was taken, by defendant, to the superior courts, in which an arrest of judgment was entered for Wil- liamson, and in conclusion the learned chief justice said-: "Althoagh marriage may be regarded as a tetoporal advantage ANSON ON CONTRACTS.. 211 to the party as far as respects ^eraowaZ comfort, still it cannot ^e considered as an increase of the transmissible personal estate, but rather an extinguishment of it." Kule for arrest of judg- ment was sustained for defendant. ENGLISH EULE. An administrator cannpt have' an action for a breach of promise of marriage, to the intestate, when no special damages are alleged. AMERICAN EULE. Notwithstanding the fact that most States have statutory provisions, to the effect that a personal representative may sue or be sued on any contract of or with the deceased, still it is generally held that such statutes do not change the rule above, also such an action will not survive against the administrator of the promisor. Stellins vs. Palmer, 1 Pick. 71. Hovey vs. Page, 55 Maine, 142. Smith vs. Sherman, 4 Gush. 408. t SMITH VS. WILSON. Decided in England, 1832, 3 B. & Ad. 728; 169; Anson 249. PiiiNciPLE. — A case holding that the admissibility of evi- dence of usage to explain phrases in contracts, whether com- mercial, agricultural or otherwise, subject to known customs, is lawful. GASE m BEIEF. This peculiar case arose out of a dispute between the plaintiff Smith and the defendant "Wilson as to the number of rabbits it takes to make a thousand; for as strange as it may seem, Wilson contended that there were twelve hundred rabbits in a thousand, while Smith maintained that ten hun- dred would be enough. Smith had leased a rabbit warren of 212 • LEADING CASES. the defendant for a term of years, under the following cove- nant, in substance. Smith agreed to leave ■ upon the warren at the expiration of his lease, not less than ten thousand rabbits or conies, as thej were called, "Wilson to pay for the same at the rate of £6 per thousand (about $30) ; and for all over that number at the same rate. The number of rabbits was to be determined by t,wo disinterested parties, one chosen by the plaintiff, the other by defendant. At the expiration of the lease, the parties chosen decided that there were nineteen thousand two hundred rabbits yet in the warren. When Wilson came to settle .the amount due Smith, he claimed that the 19,200 rabbits should be counted as 16,000, according to the custom of the country, which counted 100 dozen rabbits a thousand; he accordingly offered Smith £96 as payment in» full for the rabbits yet remaining in the warren. This Smith refused, claiming that a thousand should be taken in its ordi- nary sense to mean ten hundred and not twelve hundred. He therefore brought suit to recover the price of 19,200 rabbits. Wilson asked permission to introduce parol evidence to prove that the custom of the country in which the covenant was made called 1,200 hundred rabbits 1,000. The court granted this per- mission, and upon the evidence introduced the jury decided that 1,200 rabbits meant 1,000 in this particular case, and that Smith must accept payment of £96 for the 16,000 rabbits, which amount Wilson had paid into court, or nothing at all. This verdict was sustained by the superior courts and a de- cision rendered in favor of Wilson. Smith accepted the £96. ENGLISH RULE. Parol evidence is admissible to show that by the custom of the country where the lease was made that the Word thousand means 1,200 or 100 dozen, when applied to rabbits, and the principle on which such explanation is admitted has been stated to be that "words perfectly unambiguous in their ordinary meaning ANSON ON CONTRACTS. 213 are used by the contractors in a different sense from that, aad in such cases the evidence neither adds to, nor qaalilies, nor contradicts the existing contract, it only ascertains it, by ex- pounding the language." Brown vs. Byrne 3 E. & B. 716 AMEEICAN RULE. Abbreviated expressions and ambiguous phrases may be used with reference to some usage or custom and in an action on a contract, containing such terms^ usage may be appealed to explain them, but as a rule, words of manifest and certain import cannot be given an unnatural meaning. The intention of contracting parties cannot be shown by evidence of a usage which is at variance with the express terms of the contract; repugnant to statutory law, against public policy or unrea- sonable and oppressive. Soutier vs. Kellerman, 18 Mo. 509; Caldwell vs. Meek, 17 111. 229. Mansfield vs. Inhabitants, 15 Gray 149; liaisin vs. Clark, 41 Md. 158; Strong vs. Grand Trunk R. R. Co., 15 Mich. 206 KEMBLE VS. FARREN. Decided in England, 1829. 6 Bing, 141—34 Eng. Com. Law Rpts; Anson 255. Peinciple. — A case deciding that when the amount to be recovered for a non-compliance to the terms of a contract is in the nature of a penalty, they will not allow it to be enforced, although the parties have expressly stated that it is to be paid as liquidated damages and not as a penalty. CASE IN BRIEF. In 1828-1829, Kemble, the plaintiff, was the manager of the Covent Garden Theater, London. He entered into an agree- ment with the defendant, Farren, a popular actor of the time, to perform at the Covent Garden Thqater for four consecutive 214 ■ LEADING CASES. seasons, ccmmencing in October, 1828. By the terras of the contract Farren was to conform in all things to the usual regulations of the theater; he was to receive a salary of £3 6s. 8d. for every night on which the theater should be open for theatrical performances during the next four seasons of the engagement; he should also be allowed one benefit night in each season, on terms therein specified. The agreement also contained a clause stating that should either of the parties neglect or refuse to fulfil the terms of the contract, or any part of it, or any stipulation therein contained, such party should pay to the other the sum of £1000, "to which sum it was agreed that the damages sustained by such omission, neglect or refusal should amount; and which sum was thereby declared by the parties to be liquidated and ascertained damages, and not a penalty' or penal sum, or even in the nature thereof ." During the first season the spirit and letter of the agreement were complied with, but at the beginning of the second Farren refused to perform. Kemble then brought an action of assumpsit to recover the liquidated and ascertained damages, placed at £1000, for the violation of Farren's engage- ment. The lower court gave Kemble a verdict for £750 damages, which he would' not accept and took an appeal to the higher courts for the £1000, but the court held that thoiigh the parties had explicitly stated in the agreement that the sum was not to be regarded as a penalty, it must nevertheless be so regarded, and Chief Justice Tindal in rendering judgment gave his reasons for so doing as follows: "If the penal clause had been limited to brea,ches uncertain in their nature and amount, it might have had the effect of ascertaining the damages; but in the present case the clause is not so confined; it extends to the breach of any stipulation by either party. If, therefore, on the one hand, Kemble had neglected to make a single payroent.of £3 6s. 8d. per day, or on the other hand, the defendant had refused to conform with any usual regulation of the theater, however minute or unim- ANSON ON CONTRACTS. 215 portant, it must have been contended that the clause in ques- tion, in either case, would have given the stipulated damage& of £1000. But that a very large sum should become immedi- ately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered as a penalty, appears to be a contradiction in terms; the case being precisely that in which Courts of Equity have always relieved, and against which Courts of Law have, in modern times, endeavored to relieve, by directing juries to assess the real damages sustained by the breach of the agreement." Judg- ment was then rendered placing the damages at £750. ENGLISH KULE. - Liquidated damages cannot be reserved on an agreement containing various stipulations, of various degrees of impor- tance, unless the agreement specify the particular stipulation or stipulations to which the liquidated damages are to be con- iined, or, if a contract contains a number of teluns, sonie of which are t)f a certain value and some not, and the penalty is applied to a breach of any one of them, it is not recoverable, as liquidated damages, however strongly the parties may have expressed their intention that it shall be so. AMERICAN RULE. This rule' has been generally followed in American courts, but not in all. In 5 Mich. 124, it was held that the injury in this class of cases was, whether the principle of just compensa- tion had been violated. "Not what the parties intended, but whether the sum is in fact in the nature of a penalty, and this is to be determined by the magnitude of the sum, in con- nection with the subject matter, not by words and understand- ing of the parties. The intention of the parties cannot alter it." Jacqueth vs. Hudson, 5 Mich. 124; Niver vs. Rossman, 18 Barb., 50; Caldwell vs. Laurence, 38 N. Y. 71. 216 LEADING CASES. FOSTER VS. DAWBER. Decided in England, June 8-30, 1851. 6 Exclh. 839; Anson 260. Peixciple. — A case which decided that an executed contract, i. e., a contract in which one of the parties has performed all that is due from liim, cannot be discharged by a parol waiver ; except in the case of hills of exchange and promissory ' notes; the rights of the holder of such instruments may be waived and discharged without any consideration for the waiver. CASE IN BRIEF. This was an action in assumpsit brought against Richard Dawber, the defendant, by Foster the plaintiff, who was also administrator to! the estate of one John Clark. It appeared that John Clark, the plaintiff's testator, was a farmer at Cas- tlethrope, Lincolnshire, England. That previous to this suit, the defendant, Richard Dawber, who was a merchant, had fallen in love with John Clark's daughter and eventually married her. John Clark loaned his son-in-law, Dawber, in 1S35, £500 upon security of his promissory note, payable upon demand with £4: per cent interest, and in 1842, he loaned Dawber £500 more on a similar note with interest. Dawber paid Clark the interest regularly until the backs of the notes had become covered with credits of the interest payments, then by mutual agreement, new notes were made on Dec. 7, 1845 and Jan. 20, 1846, for the sums due, and upon these notes the action was brought. On Feb. 16, 1846, J. Clark visited his son-in-law at Hull, England, and in a talk upon family affairs, he told Dawber to purchase a ten shilling stamped paper and write upon it this receipt: "Hull, Feb. 16,1846. Received of Richai^d Dawber, the sum of £1080, as principal 3.nd interest on two notes, dated Dec. 7, 1845, and Jan. 20, 1846, in full of all demands. — signed — " This Clark signed ANSON ON CONTRACTS, 217 in the presence of one, J. Newton, as a complete discharge of the notes. Jan. 13, 1850, J. Clark died, willing the notes to Foster, who brought action to recover, but the court held that the receipt signed by J. Clarli was a sufficient discharge of all claims and gave a verdict for the defendant. In rendering the decision the Court observed ''that it is competent for both parties to an executory contracll, by mutual agreement without any satisfaction, to discharge the obligation of that contract. But an executed contract cannot he discharged except by a release under seal, or hy -performance of the obligation, as by payment, when the obligation is to be per- formed by payment. But a promissory note or bill of ex- change appears to stand on a different footing to simple con- tracts. The rule of the' law has been so often laid down and acted upon, although there is no case precisely on the point as between immediate parties, that the obligation on a bill of exchange may be discharged by parol waiver, that it is too late now to question the propriety of that rule." And as the rule regulating bills of exchange applies to promissory notes as well, the law is applicable to both instruments. Judgment, holding that the discharge though unsupported by consideration was valid, was then rendered in favor of the defendant, Dawber. ENGLISH EULE. ' Where the holder of a promissory note signs a . written receipt and discharges from all further payments of same, with his own free will, and the sole intention of releasing the prom- isor from all further obligation as a payment of same, "such a transaction is evidence in support of siich discharge and as the obligation on a bill of exchange, might, before it is paid be discharged by parol, and as promissory notes' are by the same statute, 3 and 4 Anne, c 9, placed upon the same footing, the plea of such written discharge and it produced in evidence is good," and the discharge is held good. 218 LEADING CASES. AMERICA]^ EULE. By weight of American authority bills of exchange and promissory notes present no exception to the rule that a cause of action cannot be discharged by a parol waiver un- supported by anj' consideration. And the above case is not followed to that extent in the United States. But a sur- render of the obJ Igatiun, bill or note, with interest and for the purpose of discharging , the debt, and without fraud or mis- take, operates in law as a discharge of the liability thereon ; nor is any consideration required to support such a transaction when it has been fully executed. Crawford vs. Millspaugli, . 13 Johns. 87; Vanderbeck vs. Yanderbeck 30 N. J. Eq. 279. HART VS. ALEXANDER. Decided in England, June, 1837. 2 m! & W. 489 Anson 263; Principle. — A case which decided that a contract may be discharged by the introduction of new parties into the original agreement, whereby a new contract is created, in which the tdrms remain the same, but the parties different, unless all the parties agree to acquiesce in the change of the liability, and in case the parties consent to the change,, either expressly or impliedly, they are bound. CASE IN", BEIEF. This was an action brought by the plaintiff Hart, to recover £18jl50, the value' in English money of 148,771 sicca rupees, with interest, up to April 30, 1832, at 5 per cent, which Hart alleged to be due him from the defendant, as one of the part- ners in the firm of Alexander & Co., who were bankers in Cal- cutta, India. Captain Richard Hart, the plaintiff, was on half pay in the 60th Foot, but was formerly in active service AlsrSON ON CONTRACTS. 219 in the Queen's army in India, .and was employed in an expe- dition against Java in 1815, from which island he sent from time to time, to Calcutta, large sums of money to be deposited in the bank of Alexander & Co. The accounts rendered to Ilart by Alexander & Co. from 1816 to 1832, were put in evidence, and those accounts of 1816-17-18, were in the writing of defend- ant, Josias Dupon Alexander. The account of 1816 gave Hart a credit of 29,518 sicca rupees, and continued to increase until 1832, when it amounted to 148,771 sicca rupees with interest at various rates during the time. In 1818 Josias Dupon Alexander retired from the firm and two new partners were admitted. This was announced in the papei's which Hart took, and also by a circular letter sent him, the custom of the house upon making a change of partners. A Nathaniel Alexander having been made partner, the firm continued under the name of Alexander & Co., and Hart continued to deal with them until 1832, when the firm became bankrupt. Hart then sued defendant for this money as being one of the original firm. But the court said: " I apprehend the law to be now settled that if one partner goes out of the firm and another comes in, the debts of the old firm and the new firm may be transferred by consent of all three of the parties, the creditor, the old flrin ' and the newfirrn; and this change of liabilities has been ac- cepted and the plaintiff has rescinded the old contract by dealing with the new firm." Judgment for defendant was then rendered, holding that Plart could not recover. ENGLISH EULE. "Where a person has been sufficiently notified of a change in the firm with which he is dealing, by circular letter or news- paper, and he still continues to deal with the firm after knowl- edge of such change, " such evidence is sufficient to go to the jury to show that the person knew that one of the parties had 220 LEADING CASES. retired from the firm and another had taken his place and that he had agreed to the discharge of the retired partner from liability and taken the new firm as his debtors." AMERICAN EULE. This rule is followed in the American courts to the extent that a note of one of the members of the firm was a new security, . expressing an obligation unlike that arising out of the original contract, and was a sufficient consideration for the discharge of the other members of the firm. Livingstofa vs. Kadcliff, 6 Barb. 201. But the note or other security must be re- received with the intention that it shall satisfy the original obligation, or it will not effect a discharge, and the intention of the parties in this matter is a question of fact for jury to determine. Gates vs. Hughes, 44 Wis. 332. HEAD VS. TATTERSTAI.L. Decided in England, Nov. 17, 1871. 7 Exch. 7; Anson 264- 265 Pkinciple. — A case deciding that in a contract which con- tained specific terms, upon the non-fulfillment of these terms, the contract may be discharged at the option of^-the buyer. CASE IN BEEF. This was an action brought by the plaintiff Head to recover the sum of £43 Is., which he paid for ahorse under the following cir- cumstances: The horse was described in the catalogue of sale as having been hunted with the Bicester and Duke of Grafton's hounds, and the contract of sale contained among other condi- tions, " that horses not answering the description in catalogue must be returned before five o'clock in the evening on the Wednesday next, otherwise the purchaser will be obliged to keep the lot with all faults. After Head, the plaintiff, had ANSON ON CONTRACTS. 221 made the purchase, the groom who had taken care of the horse, but who was not one of Tatterstall's servants, told Head that the horse had not in fact been hunted with the Bicester and Duke of Grafton hounds. This information proved to be correct, but as Head did not want the horse for hunting pur- poses, he took it away for trial, the same afternoon of the purchase. On the road from Tatterstall's premises to Head's stables, and while under the care of Head's servants, the horse became frightened and seriously injured itself by running against the splinter-bar of a carriage in the road. Upon the occurrence of this accident Head returned the horse before the stated time for return had expired, and this action was brought to recover the price of the horse, which he had paid to Tatterstall. The Court held that as the horse did not answer the description, and the accident happened through no fault of either party, Head could recover the £43 Is. Judg- ment for plaintiff. ElfGLISH EULE. " The effect of such a contract is to vest in the buyer, the property subject to a right of recision in a particular event when it would revest in the seller. And in the above case, the plaintiff's conduct in removing the horse, after in- formation given him by the groom, did not deprive him of the right given under his, contract to return the horse, and his rights to return it was unaffected by an accident hav- ing happened to it when in his possession, without neglect or default on his part. AMEEIOAN EULE. This rule is followed in the American courts, modified to the extent only that if a chattel sustains injury through the buyers fault, the right of return is lost, and the seller may bring assum/psit for the price. Eay vs. Thompson, 12 Cush., 281 ; Hunt vs. 'Wyraail 100 Mass., 198 16 222 LEADING CASES. NUGENT VS. SMITH. Decided in England, May 29, 1876, 1 C. P. D., 423; Anson 266-267. Peingiple. — A case which decided the meaning of the phrase " Act of God." CASE IN BRIEF. Nugent, the plaintiff, was the owner of the two valuable horses, and desired to send them from London, England, to Aberdeen, Scotland. He shipped them on board a steamship belonging to a company of which the defendant Smith was a representative. The vessel was plying regularly as a general traffic ship of lading. During the voyage through the North Sea, and near the great Maelstrom, a storm of up usual viot- lence arose, and partly from the rolling of the vessel, in the heavy seas, and partly from the excessive struggling caused by great fright, one of the animals, a mare, received injuries from which she died while on the voyage. An action was brought to recover damages- for loss of the mare, and in the court of Common Pleas, Nugent received the judgment, but upon an appeal the Court of Appeals reversed the decision, and established the English rule as given below, holding that the shipman was not responsible for the loss of the mare. Judgment in favor of Smith, the defendant. ENGLISH RULE. / ' The Court of Appeals held that it is not necessary to prove that it was absolutely impossible for the carrier to prevent it, but that it is sufficient to prove that hy no reasonable precau- tion under the Gir.atimstanGes could it have been prevented." Also that the carrier does not insure against the irresistable ANSON ON CONTRACTS. 223 net of nature, nor against defects inherent in the thing car- ied. And if he can show that either the act of nature or the thing itself, or both taken together, forin,ed the sole, direct and irresistable cause of the loss, he is discharged. To show- that the cause of the loss was irresistable it is not necessary to prove that it was absolutely impossible for the carrier to pre- vent it, but it is sufScient to show that by no reasonable pre- caution under the circumstances could it have been prevented. AMERICAN RULE. The general rule in the American courts is, that in case of an inevitable accident, the law requires of a carrier only or- dinary care, skill and foresight. Morrison vs. Davis & Co., 20 Fa. St., 171. " The act of God " excludes all idea of human agency, many courts insisting that there is no distinction between " Act of God " and inevitable accident. Neal vs. Saunderson, 2 S. & M. (Miss.) 572. NOBLE VS. WARD. Decided in England, Feb. 8, 1S67, L. R. 2 Exch., 135; Anson 269. Principle — A case which decided that where a contract is required by the Statue of Frauds to be in writing; there ap- pears to be authority for saying that an absolute discharge of the contract may take place by word of mouth. But if the dis- charge be not a simple recision or cancellation, if it be such an implied discharge as arises from the making of a new 224 LEADING CASES. agreement inconsistent with the old one, then there must jje writing such as would satisfy the enactment which governs the original contract. ' CASE m BEIEF. This was a case which was appealed from the judgment of the Court of Exchequer. The action was brought for the non- acceptance of goods by Ward, pursuant to a contract dated August 18, by which goods were to be delivered within a certain time, by Noble, the plaintiff, to Ward, the defendant. The terms of this agreement were put in writing and satisfied the requirements of the Statute of 'Frauds. It appeared in evidence that on September 27th a verbal agreement was made between Noble and Ward, extending the time for delivery a fortnight; and that a previous contract made August 12th should be rescinded. These facts were not disputed by the plaintiff. When the time for delivery arrived Ward' refused to accept the goods, contending that the effect of the. verb&l contract to extend the time for delivery was a recision of the contract made August 18th. Noble contended that the agreement made September 27th was invalid, being made by word of mouth, for want dt the formalities required by the 17 § of the Statute of Frauds; being thus a verbal agreement it would not "be allowed to be good'' as a new contract for the sale of goods. Ward maintained that though the contract was invalid to create a new contract it was never- theless valid to rescind the old one. The Court of Exchequer held that " no recision could take place by an invalid contract;" that the agreement made September 27th must be taken as an entirety; that the contract then verbally made must not be looked upon as valid and hence the judgment rendered in the lower court must be affirmed by giving a judgment for the plaintiff, Noble, compelling Ward, the defendant, to accept the goods. ANSON ON CONTRACTS. 225 JENGLISII EULE. Where a contract is made in writing for the sale of goods, to be delivered at a certain time in future, above £10 in value, and before the time for delivery arrives, the parties by parol agreement extend the time, it was held that the parol agreement being invalid under the the 17 § of the Statute of Frauds, did not effect an implied recision of the former con- tract. AMERICAN RULE. In this country, some of the courts hold with Cuff vs. Penn, 1 M. and S. 21, to the extent that a contract in writing and within the Statute of Frauds, may be modified by a subse- quent oral agreement for a substituted performance. Cum- mings vs. Arnold, 3 Met. 486. Btit the better opinion is that a written contract fallings within the Statute of Frauds cannot be varied by any subsequent agreement of the parties, unless such new agreement is also in writing. Mussleman vs. Stoner, 31 Pa. St. 365. IIULLE VS. HEIGHTMAlSr. Decided in England, January 27, 1802. 2 East., 145; Anson 279. Principle. — A case which decided that the right to sue upon a quantum fneruit count is emphatically stated to depend on the fact that the contract has been discharged. CASE IN BRIEF. This was an action in assumpsit for wages due HuUe, a sea- man on board a Danish vessel, of which Heightman, the de- fendant, was captain. The vessel was chartered from Altooiia,. 226 LEADING CASES. a port on the Elbe river, in Holstein, Prussia, to London, England, and return. Hulle proved that he was a seaman at Altoona until his arrival in London, and after the ship had unloaded her cargo in London, the captain refused to supply the seamen with food, bul; told them to go on shore, saying he could secure plenty of their countrymen to go back to Den- mark with him for their food only, since the peace had been concluded. Hulle and others went on shore, and a few days laterj when the captain was ready to set sail for home, he re- quested them to come back on board, but they refused, saying it was too late now, a? they had brought action against him for wages due. Before leaving London the captain once more asked them to return to the ship, which they again refused to do. There had been written articles of agreement signed by the seamen, which the captain held, it was also signed by Hulle, the plaintiff, whereby it appeared that the seamen were hired for the voyage from Altoona to London and return. There was an express stipulation that the seamen should assist in bringing the ship back again and making her fast in the proper place before they could ask for wages due, iinder a certain penalty ; and also another stipulation that no one of the crew should, in a foreign port demand money of the captain, but should be content with the wages received in advance, until the voy- age was completed to the satisfaction of the captain and own- ers of the vessel, and cargo of goods, tend the ship had again safely arrived at Altoona. It should also be at the captain's option whether or not he should givp tliem money in foreign ports; also, no person should demand his discharge in foreign ports, and a disobedience of the captaui's orders was a forfeit- ure of salary in full and to suffer punishment. Under the circumstances, the plaintiff, Hulle, was mistaken in his remedy and should have declared specially upon the contract instead of an indebitatus assumpsit on a quantum meriut. Judg- ment was rendered in favor of Heightman, and Hulle failed to recover. ANSON ON CONTRACTS. 227 ENGLISH RULE. A seaman having contracted to go on a voyage from A. to B. and return, with a stipulation that he should not be en- titled to his wages till the end ol; the voyage, cannot maintain a generaliiidebitatus assumpsit to lecover his wages ^ro rata as far as B. though he was there wrongfully dismissed by defend-> ant (the captain), but his remedy is either for breach of the j special contract or for such tortious act of the captain whereby he was prevented from earning his wages. AMERICAN RULE. This rule is unquestioned authority in America. Dermott vs Jones, 2 "Wall. 1 ; "Willing vs. Sherman, 7 Wend. 109. HOCHSTER VS. DE LA TOUR. Decided in England June 25, 1853. 2 E. & B. 678; Anson 281. Peinciple. — A case which decided that where two parties have entered into a contract, the renunciation of the contract by one of the' parties, before* the time for perforjnance has arrived, discharges the other if h© so choose and entitles him to at once sue for a breach of the contract. CASE IN BRIEF. This was an action brought by Hochster, the plaintiff, to recover wages upon a contract, as follows: Hochster was a courier, and on April 1, 1852, was engaged by the defendant, Delatour, to accompany him ■ on a trip through Europe, his services to commence June 1, 1852, and to continue three months, at a salary of £50 or $250 per month. On May 11^ 1862, Delatour wrote Hochster that he had changed hia 228 LEADING CASES. mind in regard to the employment and declined his Services, He also refused to make Hochster any compensation for the breach of contract, and, as a consequence, the, plaintiff com- menced action to recover his wages as per agreement, on May 22, 1852. On May 25, Hochster obtained an engagement as courier, with Lord Ashburton, on equally good terms, to com- mence July 4, 1852. The defendant's council objected that there could be no breach of the contract before June 1, 1852, but the court said that it sufficiently appeared upon the face of the declaration, that ihere was not merely an intention to break the contract, for which intention he might repent, but a renunciation communicated to the plaintiff on which the plaintiff was entitled to an immediate action, and as a result the plaintiff was entitled to a judgment; the verdict was so rendered in favor of Hochster, the plaintiff. ENGLISH EULE. A party to an executory agreement may, before the tim^e for executing it, either by disobedience himself for not fulfilling it, or by renouncing the contract, be held liable; and in such case an action will lie for such breach, hefore the time of the ful- fillment arrives, for the carrying out of the agreement. AMERICAN EULE. While the above rule is undisputed law in England, yet the docti'ine has been seriously questioned in America by high authority. Burtis vs. Thompson, 42 N. Y.; 246-50. Ita application to breaches of promise of marriage is generally recognized, and the English rule has been followed by the Federal Courts in Dingley vs. Oler, 11 Fed. Eept. 372. Chamber of Commerce vs. Sollitt, 43, 111. 519. ANSON ON CONTRACTS. 229 COKT VS. AMBERGATE R. R. CO. Decided in England May 27, 1851, 172. B. 127; Anson 2S5. Pr.rxGiPLE. — A case which decided that if in th« course of performance of a contract, one of the parties' does, by word or act, deliberately and avowedly.ref use further performance on his part, by renouncing the contract or rendering perfoi-inance impossible, the other party is then exonerated from a contin- ued performance of his promise, and is at once entitled to bring action upon the contract. CASE IN BPvIEF. This was an action brought by Cort & Gee, the plaintiffs, against the Ambergate Railroad Company, to recover the value of certain railroad chairs (?'. e. railings and straps or joints) which were yet unmade and undelivered. The circumstances were as follows: The Ambergate Kailroad Company was -about to build a railroad, and contracted with the plaintiffs for the railroad chairs, to the amount of 3,900 tons in all, or 3,000 tons of railing and 900 tons of straps or joints. These chairs were to be delivered at certain times and stated places, the first delivery to be made in February, 1847, and monthly thereafter according to the terms of the contract. After the agreement had been signed, Cort & Gee bought premises and erected buildings, contracted for iron and made preparations to supply the chairs as per contract, at a great expense to them- selves. The supply was begun and the company called upon for the amounts due the plaintiffs from time to time. The payments were very irregular and not made according to contract, until 1,787 tons of chairs had been supplied up to December, 1849. At this time, the company, through their contracting engineer, orderd the supply stopped, as no more rail* would 230 LEADING CASES. ENGLISIi EULE. be needed, the company also refused to pay for the remaining chairs not yet manufactured. Suit was brought, and in render- ing judgment in favor of the plaintiffs, Justice Coldridge said: "Where there is 'an executory contract for the manufacture and supply of goods from time to time, to be paid for after delivery, if the purchaser having accepted and paid for any portion of the goods contracted for and then gives notice to the vendor not to supply any more, as he has no use for them,. and will not accept or pay for them, the vendor being desir- ous and able to complete his contract may, without further manufacture and tendering of the rest of the goods', main- tain an action against the purchaser for breach of contract and is entitled to a verdict thereon." Verdict wbs rendered for Cort in the sum of £1,800 or $9,000. ENGLISH EULE. Where a contract is renounced by one of the parties to it, the other party need do no more than show that he was will- ing to have performed his part, to entitle him to &nimmedlute right of action. -AMEEICAN EULE. This rule has been generally followed in this country, by nearly all courts. Hosmer vs. Wilson, 7 Mich. 304. Derby vs. Johnson, 21 Vt., Collins vs. Delaporte, 115 Mass. 162. SIMPSON VS. CKIPPIlSr. Decided in England, JSTov. 26, 1872, 8 Q. B. 14; Anson 292. I Principle. — A case which decided that in an installment contract, for the delivery of goods in equal monthly install- ments, the vendor cannot rescind the contract if the vendee fails to take the amount agreed upon for the first installment. ANSON ON CONTRACTS. 231 CASE IN BEIEF. In this case an action was brought by Simpson, the plaintiff , who was a coal merchant, against Crippin, the defendant, the proprietor of a coal mine, claiming damages for rescinding a coal contract made upon the following terms: On June 10, 1871, Simpson, the plaintiff, wrote to Crippin, the defendant: "Sir: We agree to take from- you about six to eight thousand (6,000 to y,000) tons of your best Wigan, four feet (char) coal, at 5s. 6d. per ton of 21 cwt. to the ton, put into our wagons at the the colliery. Delivery to commence from first of July next, and to be taken in about equal monthly quantities during the next twelve months. In case of accidents, strikes or riots, you are not bound to supply the coal. Terms, cash monthly on delivery, 2^ per cent discount." Crippin, in a letter dated June 10th accepted the contract on above terms. When July 1st arrived no wagons were sent to the mines by the plaintiff for coal, nor any during the week. On July 8th Crippin wrote to Simpson to know why he did not send on wagons to remove the coal. Simpson promised to send wagons promptly, but during the month of July only 158 tons of coal were removed by the plaintiff, when he should have taken not less than 500 tons. Thereupon Crippin notified Simpson, August 1st, that as he had taken only 158 tons of coal from the mine during July, and as the sole inducement for the contract was the re- moval of the coal during the summer months, which the plaintiff had failed to do, the contract should be cancelled. August 2d, Simpson gave Crippin notice that he would not allow the contract to be cancelled; and brought an action for damages. . The court held as above, and said that if the parties intended that such a breach of this kind should put an end to the contract they should have provided for it in the agreement. Judgment was rendered in favor of Simpson for £475, or about $2,375. 2,'52 LEADING CASES. EN-QLISII EXILE. The breach of a contract in taking less than the stipulated sum during the iirst month, does not entitle the defendant, the vendor, to rescind the contract. AMERICAN RULE. This case has received much attention in the American courts, as many courts follow it, while other courts prefer to follow I[oarevs..Eennie, 51 H. & N. 19, which is the reverse of the above rule. Cohen vs. Platte, 69 JST: Y. 3i8; contra Nor- rington vs. "Wright, 115 U. S. 188-211; NOKKINGTON VS. WRIGHT. Decided in United States, Eastern District of Pennsylvania, October 26, 1885. 115 U. S. 211; Anson 292. Pbinciple. — A case which is in direct opposition to the English rule in Simpson vs. Crippin, viz: "That the failure to deliver the first of a series of installments of goods will not operate as a discharge." b^ CASE IN BRIEF. This was an action of assumpsit, brought by Arthur Nor- rington, of London, England,, against James A. Wright, of Pennsylvania, doing business under the name of P. "Wright k, Sons. Edward J. Etting, a metal broker of Philadelphia, sold to Peter Wright & Sons, for A. Norrington, 5,000 tons of old T iron rails, to be shipped from European ports at the rate of about ] ,000 tons per month. Shipments to begin in Feb. 1880, and the whole contract to be shipped before Aug. 1, 1880. Terms, £45 per ton, 2240 lbs custom house weight. Ex-shipment Philadelphia, cash on presentation of bill, accom- panied by custom house certificate of weight. Seller was to ANSON ON CONTRACTS. 2?>'d notify buyer of shipment, with names of vessels as soon as known by him. Norrington shipped from various European ports, 400 tons in Feb., t^S5 tons in March, 1571 tons in April,- 850 tons in May, 1000 tons in June and 300 tons in July, and ^ave the defendant notice of same. Wright received and paid for the Feb. shipment upon its arrival in March and, April, and gave directions at what wharves the IMarch shipment should be discharged on its arrival. On May 14, about the time of the March arrival, he learned for the tirst time of the amount shipped in Feb., March and April, and at once gave Etting notice that as none of these shipments were in accord- ance wiih the terms of the contract, he should decline to accept the March and April shipments and rescind the contract immediately. While they had six months to deliver the iron, yet it was to be done at the rate of about' 1000 tons per month. From the date of the contract to tlie time of its recision, the market price of such iron was lower than the contract price,. and still falling. Judgment was given for the defendant, the court saying "that a man cannot be made to accept that which he did not bargain for where the description of the article differs from that given in the contract." a' ENGLISH EULE. Such failure to deliver as per contract does not operate as a discharge of the contract. Simpson vs. Crippen. That such failure to deliver as per contract does operate as a discharge, see the later cases of Flock vs. Muller, 7, Q. B. Div. 1*2; Keuter vs. Sala 4 C. P. Div., (B. A,) 239; Brandt vs. Law- rence, 1, Q. B. Div. 344. AMERICAN EULE. The plaintiff's failure to make such shipments as the contract' required in Feb. and March, prevented him from maintaining the action, because the defendant could not be compelled to 234 LEADING CASES. take about 1000 tons out of a larger quantity shipped in April, for the plaintiff, after once designating the names of the vessels as the contract required, could not substitute other vessels for ttiose named in the agreement. HADLEY VS. BAXEXDALE. Decided in England. Feb. 23, 1854, 9 Ex'ch. 355; Anson 310 Pkinciplb. — A case deciding that in an action for dapiages for a breach of contract, the damages to which the plaintiff is entitled are such as might have been supposed by the parties to be the -natural result of a breach of contract. Such as might have been in contemplation when the contract was made. CASE IN BRIEF. The plaintiff, Hadley, was an extensive miller at Gloucester, England, and on May 11, 1854, the mill was stopped by the breakage of a crank shaft, by which the mill was worked. The shaft had to be sent to Greenwich, England, to have a new one made from it used as a pattern. Hadley sent a message to Baxendale, the defendant, who was a well-known common carrier, taking orders under the name of Pickford & Co., for the purpose of having the shaft carried to Greenwich. The clerk of the defendant was told that the mill was stopped and the shaft must be sent at once, and desired to know when the shaft could be taken. The answer was that " if left by tv/elve o'clock noon any day it would be delivered in Greenwich the following day." The shaft was sent up as per advise, and also £2 4s. to prepay its carriage to Greenwich, and the clerk was told to make a special entrj^ if need be, to insure its rapid delivery. The delivery of the shaft was delayed several days, ANSON ON CONTRACTS. 235 causing quite a loss to the plaintiff by the stoppage of his mill, and he brought action to recover damages. He was awarded £25 in the lower courts, but upon an appeal the higher Court held it to be excessive, and in rendering the decision held that under the circumstances such loss could not be recovered, and gave judgment for defendant. ENGLISH RULE. " AVhere two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such a contract should be (a) such as may be fairly and reasonably considered, either arising naturally, i. e. ac- cording to the usual course of things, from such breach of contract itself, (b) Or such as may be reasonably supposed to have been in contemplation of both parties at the time they made the contract, or the probable result of the breach of it. (c) If the damages arose out of the circumstances under which the contract was made, and such circumstances were communi- cated from plaintiff to defendant, the damages from the breach of such contract would be the amojint of injury which would ordinarily follow, (d.) But if these special circumstances were wholly unknown to the party breaking the contract he could only be supposed to have had in contemplation the amount of injury arising generally in cases, not affected by any special circumstances, so known and communicated." AMERICAN RtJLE. The above rules are followed by nearly all courts in Amer- ica; some courts differing slightly from third rule. I. C. R. R. Co. vs. Cobb, 6-1: 111.125; Fleming vs. Beck, 48 Pa. St. 312; Snell vs.'Cottingham 72 111. 161, '236 LEADING CASES. LUMLEY VS. WAGNEK. Decided in England, May 22-26,1852,1 D. M. & G. 604; Anson 313. Pbinciple. — A case deciding that where the subject matter ,of a contract is such that the courts cannot supervise its execu- tion, as in contracts involving personal service, it will enforce by an injunction a promise not to act in a particular way. CASE IlSr BRIEF. The bill in this suit asking for an injunction was filed April 22, 1852, by Benjamin Lumley, who was the lessee of Her Majesty's Theatre, against Johanna Wagner, Albert "Wagner, her father, and Frederick Gye, the lessee of Convent Garden Theatre. In 1851, Dr. Joseph Bacher, Albert Wagner and Johanna Wagner, came to Berlin, and there concluded an agreeraent'in writing in the French language, dated Nov. 9, 1851, by which agreement Johanna Wagner was to sing for a period of three months, at the theatre of Mr. Lumley, Her Majesty's The Queen's Garden, in London. The engage- ment to commence April 1, 1852, including the time of journey from Berlin to London. Johanna Wagner was to receive a salary of £100 per month, and £50 extra for each appear- ance over the number stipulated in the contract. She also agreed not to sing elsewhere during the engagement, without Lumley's written consent to do so. Subsequently, Miss Wagner made another engagement with Frederick Gye, one of the defendants, to abandon her first engagement and sing in tjie Convent Garden E.oyal Italian Opera, at a larger salary. Gye had full knowledge of the engagement with Lumley, the plaintiff, at the time he made his contract with Miss Wagner. In considering its decision, the Court held that an injunction restraining Miss Wagner from singing for Gye should be granted, though she could not be made sing for Lumley, and rendered their judgment in favor of the •plaintiff, Lumley. ANSON ON CONTRACTS. 2o7 ENGLISH EULE. In contracts of personal service an injunction will be granted restraining the person from doing what they agreed not to do^ for another, though the Conrt cannot compel that person to do thut which was agreed to he done in the contract. AMERICAN EULE. In the earlier cases of Sanquirico vs. Benedctti, 1 Barber 315, the court refused to enforce this rule of injunction, but later decisions generally follow the English rule as laid down in Lumley vs. Wagner, and the relief may be granted though the negative promise is not express, but implied from the contract. Daly vs. Smith, 3S N. Y.,--Sup. Ct. lob (1S74.) PARABINE VS. JANE. Decided in the Court of the King's Bench, England, about 1642. Aleyn 26 ; Anson 322 Peinciple. — A case deciding that where a contract is made between two or more parties, the performance of which snl.- sequently becomes an impossilility, the promisor will not be excused from its performance, whether such impossibilitj' originates in the default of the promisor or some other per- son. CASE IN BEIEF. This is an extremely old case, decided in the 17th century. Paradine, the plaintiff, sued Jane, the defendant, for rent due upon a lease which he held. The lease was made during the Thirty Years "War and Jane pleaded that he was unable to pay the rent from the fact that the great warrior and German Prince Eupert, "an alien born and an enemy to the king and 17 238 LEADING CASES. kingdom,,, had invaded the realm with an hostile armj oif men and entered upon Jane's property and expelled him from the land and kept him out of possession, so that he could not farm the land and take the prohts, making payment of rent impos- sible and therefore since he had been deprived of the land leased, by the events beyond his control he should not be made to pay the- rent. But the Court said: "Where the lav^ creates a duty or charge and the party is unable to perform it without any default in him, the law will excuse him, but where & party creates a duty or charge upon himself by his own contract, he must make it good, as he might have pro- vided against it by his contract." Judgment was given in favor of plaintiff. ENGLISH EULE. If the provision makes the performance of his promise con- ditional upon its continued po-sibility, the promisee takes the- risk; in the event of the performance becoming impossible, the promisee must bear the loss. If the promisor makes his promise unconditionally, he takes the risk of being held liable ever though the promise should become impossible by circum- stances beyound his control. AMERICAN EULE. The principles of this case are followed by numerous courts in America, the courts holding that if a man binds himself to perform imposibilities, he cannot be held to his agreement, but where one agrees to do a thing at the time possible in itself, the performance is not excused by the occurrence of in- evitable accidents, not forseen or within the control of the party. liarriman Case, 9 Wall. 172; Jones vs. United States 96 U. S. 29. ANSON ON CONTRACTS. 239 BAILEY \ S. DE CRESPIGNY. Decided in England, Jan. 20, 1869. 4, Q. B. 180; Anson, 322-323 Principle.^— A case which decided that a legal imposibility, arising from a change in the law of our country exonerates the promisor. CASE IN BRIEP'. Upon the trial of this case it appeared that the defendant, De- Crespigny, had deeded to the plaintiff, Bailey, a certain plot of land in the parish of St. Giles, in the county of Surry, Eng- land, together with the buildings which had been recently erected by the plaintiff. The lease to run for eighty-nine years from the 25th of March, 1S40. The compensation to be a re- served rent. Among other things De Crespigny, the defend- ant, covenanted with the plaintiff, Bailey, that neither he, (the defendant), his heirs, nor assigns, should themselves build nor would during the term of the lease, permit others to build any buildings upon the paddock fronting the premises demised by the deed, except summer houses or pleasure houses in private yards or grounds,and a church or chapel at the eastern end of the the paddock. During the term of the lease defendant permitted a railway station or depot to be erected with appurtenances thereof which included water closets and urinals, and by reason of such buildings and obnoxious appurtenances the plaintiff -was greatly damaged in the enjoyment of his land. The paddock was assigned to a railway company, which placed the build- ings aforesaid upon it and caused the damage. Upon investi- gation it was found, however, that the E. R. Co. had pur- chased the land under power given it by the special act of parliament, and that by such act the defendant was compelled to sell the land to the R. R. Co. This act of parliament was 240 , LEADING CASES. passed in 1862, giving the R. E. Co. power to pnrchafe, and build, and, if necessary, to do this by compulsion. Hence defendant was held not liable. ENGLISH RULE. The defendant was disojiarged from his contract by the sub- sequent act of parliament, which compelled him to assign his land to the R. R. Co., and by so doing made it inipossible for him to perform his previous covenant, on the principle that " lex non cogit ad imjtossihih'a ," and hence it would make no difference whether the company were only empowered or compelled to build a station on the paddock. AMERICAN RULE. This rule is followed in the American courts. Semmes vs. Insurance Co., 13 Wal. 158; People vs. Insurance Co., 91 N. Y. 174 TAYLOR VS. CALDWELL. Decided in England, May 6, 1863, 3 B. & S. 126; Anson 324. Peinciple. — A case deciding that where the continued ex- istence of a specific thing is essential to the performance of the contract, its destruction, from no fault of either party^ operates as a discharge. - CASE IN BRIEF. On May 27, 1861, the defendants, Caldwell and others, agreed to let, and the plaintiff, Taylor, agreed to take, on terms stated in the contract, the Surrey Gardens and Music Hall, at Newington', Surry,' which gardens and hall were places of amusement. Taylor was to have the use of Surry Gardens and ANSON ON CONTRACTS. 241 Music Hall, on Monday, June 17, 1861 ; Monday, July 15, 1861 ; Monday, August 5, 1861, and Monday, August 19, 1861, for the purpose of giving four grand concerts, with day and night fetes in the gardens. The defendants were to receive a rental of £100 per day for the use of the same. On June 11th the Music Hall was destroyed by an accidental lire, so that it became impossible to give the concerts as per contract, and action for damages was brought by Taylor to recover the loss occasioned thereby. The Court held " that where there is a positive contract to do a thing, not in itself unlawful, the con- tractor must perform it or pay damages for not doing it, although in consequence of unforeseen accident, the perform- ance of his contract has become unexpectedly burdensome or even impossible, but in the absence of any express or implied stipulation that the thing shall exist, the contract is not to be construed as a positive contract, but with the implied condi- tion that the parties shall be excused in case of impossible , performance, and the Music Hall having ceased to exist with- out fault of either party, both are excused from performing the contract. Verdict for defendants." ENGLISH EULE. In the absence of any express or implied stipulation that the thing shall exist, the contract is not to be construed as a posi- tive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractors. AMERICAN RULE. This is a leading case in the American courts and the rule is often followed. In every contract for the conveyance of property there is an implied condition that the subject matter 242 LEADING CASES. of the contract shall be in existence when the time for the performance of the contract arrives. School District No. 1, vs. Dauehj, 35 Conn. 530; Bishop on Contracts §588; Dex ter vs. Norton, 47 N. Y. 65 ROBINSON VS. DAVIDSON. Decided in England May 26, 1871, L. R. 6 Exch. 269; Anson 325. Principle. — A case deciding that a contract which ha? for its object the rendering of personal services is discharged by the death or incapacitating illness of the pronjisor. CASE IN BEIEF. This was an action for damages brought by Kobinson, the plaintiff, who was a professor of music and giving musical entertainments. He had contracted with Davidson, the defen- dant, that the wife of Davidson, professionally known as Miss Arabella Goddard, and a talented musician, should ^perform in a certain musical entertainment, to be given at Gainesborough, in Lincolnshire. The concert at which Mfs. Davidson was to perforin was to be given also at Brigg, on Jan. 14, 1871, and she was to furnish piano and a vocalist for an agreed sum. Noth- ing was said as to the result, if Mrs. Davidson should be sick or incapacitated at the time of the concert, accordingly all ar- rangepients were made and on the morning of Jan. 14, Kobin- sori received a note from Mrs. Davidson stating that she was too ill to attend the concert, also enclosing a physician's cer- tiiicate to that effect. Robinson was thus put to a great ex- pense which was an absolute loss, being compelled to postpone the concert. Hence he brought an action to recover for failure to perform the contract and placed his loss at £40. The jury found for the defendant, Davidson, and the higher ANSON ON CONTRACTS. 243 Court lield that in as much as the contract in its nature was not absolute but conditional upon ' Mrs. Davidson being able to perform, she was excused for non-performance on the ground of illness, and the lower Court was sustained, from the fact that the parties did not contract that incapacity should not excuse ■either party. Verdict for defendant. ENGLISH EULE. In a contract for the performance of service which no <3eputy could perform, and which in case of death could not be performed by executors of the deceased, incapacity of body or mind in the perfojmer, without default on his or her part is a valid excuse for non-performance. AMEEICAN EULE. This principle has been quite generally applied by the American courts, to the extent that sickness or death of the promisor works a discharge of his contract; but no contract ■capable of being performed by an agent, can be discharged by a cause of this kind. Green vs. Gilbert, 21 Wis. 401; Cornell vs. Cornell; 96 N. Y. 116 QUESTIONS AND ANSWERS IN X BLACKSTONE As Taught in Law School of the University of Michigan BY PROF. JEROME C. KNOWLTON. LESSON I. SECTIONS II AND III OF INTRODUCTION. Vilty do we study Blachntone? Because his lectures were printed about the time that our own government was established, and they contain a full, clear statement of the origin and uses of the common laws of Eng- land, from which the American law is derived. 'When was the English common law adopted in Am^ericaf With the adoption of the Constitution of the United States, Sept J 7, 1789. Into what four looks are Blaclcstone's Commentaries dirided? Book I. The Rights of Persons. Book II. The Rights of Things. Book III. Private Wrongs. Book IV. Public Wrongs. 122 245 246 BLACKSTONE. LAW DEFINED AND DISTINGUISHED. What is law in its general and most comprehensive sense? Law, in its genferal and most compreliensive sense, signifies a rule of action, which is prescribed by some superior, and which the inferior is bound to obey. 38 What are laws in q, more confined sense? Laws, in a more confined sense, denote the rules of human action or conduct; that is, the precepts by which man, a. creature endowed with both reason and free will, is com- manded to make use of those faculties in the general regula- tion of his behavior. 39 What is the natural law or the law of nature? It is that certain immutable law of human nature, laid down by the Creator, whereby the free will qf man is in some^ degree regulated and restrained. 40 What hind of a ieing is the Creator? The Creator is a being of infinite powee, wisdom ani> GOODNESS 40. Sow has He framed the law of human nature? He has graciously reduced the rule of obedience to one precept, viz.: That "man should pursue his own true and substantial happiness," which is the foundation also of ethica or natural law. 41 How is this law regarded? This law of nature being coeval with mankind and dictated by God himself is superior in obligation to any other. 41 Whom does the law of nature hind? It is binding all over the globe, in all countries, and at all times; no human laws are of any validity if contrary to this. 41 Investigation shows every man's reason and understand- ing to he wliat? It shows that his reason is corrupt, and his understanding full of ignorance and error/. 41 QUESTIONS AND ANSWERS. 247 Which IS of the greatest a lUhenticity, rere.nl ed or moral laio ? The revealed law, because this is the law of nature, expressly declared so to be by God himself; while the moral or ethical law is only what, by the assistance of human reason, we im- agine to be that law. 42 ' Upon what do all human laws depend? Upon the law of nature and the law of revelation. 42 , Under what circumstances v^mdd the law of nature and the law of God only he necessary ? < Only if man were to live in a state of nature, unconnected with other individuals. 43 What does law always suppose? It always supposes some superior to make it and an inferior to obey it. 43 What is international law? It is a law regulating the natural intercourse betweenstates, commonwealths and nations. 43 Upon uiJu(t does this law depend? It depends entirely upon the rules of natural law or upon mutual compacts, treaties, leagues and agreements between these several communities. 43 What law governs -particular districts, communities or nations? The municipal or civil law. 44 What is municipal laiu? Municipal law is a rule of civil conduct prescribed by the supreme power in the state, commanding what is right and prohibiting what is wrong. 44 Why is it a rule? Because: First. It is something permanent, uniform and universal. Second. So called to- distinguish it from advice or council. Third. So called to distinguish it from compact or agreement. 44, 45. 248 BLACKSTONE. What must he done witfi all laws? They must be notified to all people who are to obey them. 45 III what vtaxjs may this notification he given? 1. By universal tradition. 2. By viva voce. Z. By writing or printing. 45 What is an ex post facto law? An ex post facto law, is one that rnakes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 46 Note 5. What are considered ex post facto laws in America f 1. ' Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishable; , 2. Every law that aggravates a crime or makes it greater than it was when committed ; 3. Every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime wlien committed ; 4. Every law that alters the legal rules of evidence and re- ceives less or different testimony than the law required at time of the commission of the offense in order to convict the offender, is an ex postfaeto law. '46 Note 5. ]Ie made? By the supreme power. 46 QUESTIONS AND ANSWERS. 249 SOCIETY AND GOVERNMENT. What are the only true and natural foundations of society? The wants and fears of individuals. 57 What results when civil society is onee formed f Government results at the same time, being necessary to preserve and keep that society in order. 48 How did the different forms of government originate? It is a matter of great uncertainty and has occasioned infinite disputes. 48 In whose hands does sovereignty reside? In the hands of those wherein the qualities requisite for supremacy, wisdom, goodness and power are most likely to be found. 49 Political writers alloiu how many forms of government? 1. A Democracy, where the sovereign power is lodged in an aggregate assembly consisting of all the free members of a community. ^ 2. An Aristocracy, when it is lodged in a council composed of select members. 3. A Monarchy, when intrusted in the hands of a single person. 49 What may the Legislature do at any time? It is at any time, at the option of the Legislature, to alter the form and administration of the government by a new edict or rule, and to put the execution of the laws into wiiatever hands « it pleases; .by constituting one, or a few, or many executive magistrates. 49 Wliat virtues may he found in each J-orm of government? 1. In a Democracy, where the right of making laws resides in the people at large, public virtue; or goodness of intention, is more likely to be founds than either of the other qualities of governments. 250 BLACKSTONE. 2. In Aristocracies there is more wisdom to be found than in other forms of government, being composed of the most experienced citizens. 3. In a monarchy we iind the entire conjimction of the legislative and executive powers knit together and united in the hand of the Prince. 60 What, perfection Ints each form of gove'mment? 1. Democracies are best calculilted to direct the end of a law. 2. Aristocracies to invent the means by which that end shall be obtained. 3. And Monarchies to carry those means into execution. Of wJiat does tlie Constitution of England consist? It may be said to consist of the unwritten rules and usages in accordance with which the powers of government are habit- ually exercised. 50, 'Sole 6 Where does the exercise of Sovereign powers of the Britiah Qovernment rest? It rests in the Parliament, which is said to be "omnipotent." Where is the executive power of the law lodged? It is lodged in a single individual, the King or Queen. 60 Of what is the Legislature of the kingdom composed? Of three distinct powers, independent of each other. 50 What are these powers? 1. The King. 2. The Lords Spiritual and Temporal. 3. The House of Commons, freely chosen by the people from among themselves. 61 Whai is a state? A st^te is a collective body composed of a multitude of individuals, united for their safety and conxenience, and in- tending to act together as one man. 52 QUESTIONS AND ANSWERS. -51 W/icre does the supremaci/ of power rest in America.'' The supreme authority in America rests in the people. 5-3, Note 8 What are the parts of every lawf 1. The declaratory; whereby the rights to be observed and the wrongs to be eschewed, are clearly deiined and laid down. 2. The directory; whereby the individual is instructed and enjoined to observe those rights and abstain from the com- mission of those wrongs. 3. Remedial; whereby a method is pointed out to recover a man's private rights, or redress his private wrongs. 4. The sanction and vindicatory; whereby it is signified what evil or penalty shall be incurred by such as commi^ any public wrongs, and transgress or neglect their duty. 54 What do toe mean by mala in se? Wrongs in themselves; acts morally wrong; offenses against conscience. 57-58, 4 Bl. Comm. 8 Wind do ice mean by inala prohibita? Prohibited wrongs or offenses; acts which are made offenses by positive laws, and prohibited as such. 57-58, 4 Bl. Comm ; MODES OF INTERPRETlisfG THE LAW. What is the most effectual part of the law? The vindicatory, or enforcing the penalty annexed to the law. 57 What IS the best method of interpreting the vjill of the legislator? The fairest and most rational method is by exploring his intentions at the time when the law was made, by the signs most natural and probable. 59 '2o2 BLACKSTONE, Of what do the.ie signs cun»i»tf They are- eitlier . (a) The words. (b) The context. (c) The subject matter. (d) The effects and consequences, or (e). The spirit and reason of the law. 69 JIow are wm'ds to. he understood? In their usual and most known signification. 59 When is the context usedf It is used when words are still dubious, in which a com- parison of a word or a sentence is made, whenever they are ambiguous, equivocal, or intricate. 60 What will the intention of the legislature do? The intention of the legislature, when properly discoverable, is always 10 control in the construction of statutes. 60, Note 14 How is the subject matter to he regarded? As to the subject matter, words are always to be under- stood as having a regard thereto, as that is always -supposed to be in the mind of the legislator, and all his expressions directed to that end. 60 How are effects and consequences to he regarded? As to effects and consequences the rule is that where words bear either none, or a very absurd signification, we must deviate a little from the received sense of them if literally understood. 60 What is meant hy the reason and spirit of the law? By this is meant the cause which moyed the legislature to enact it. 61 Wfuit arises from this inethod of interpreting laws? From this method of interpreting laws, arises what we call equity, which is the "correction of that, wherein the law (by reason of its universality) is deficient." 61 QUESTIONS AND ANSWERS. 255 Are there any fi,eed and estahllsked rules for eqioity ? Why? There can be none, as equity depends, essentially, upon the- particular circumstances of each individual case. 62 THE LAVyS OF ENGLAND. How is the miuiicipal law of Eiigland divided? Into two kinds: (a) Lex non scripta, or the unwritten common law, and (b) Lex scripta^ the written, or statute law. 63 What does the Lex rion scripta include? It includes : i (a) General customs, or the common law proper. (b) Particular customs. ' (c) Particular laws, that are by custom observed only in. certain courts and jurisdictions. 63 Iji loliat are the evidences of legal custom contained? They are contained in : (a) The records of the several courts of justice. (b) In books of reports and judicial decisions, and (c) In treatises of the learned sages of the profession pre- served and handed down to us from the times of highest antiquity. 64 What was the origin of the English Common Law? It was probably the intermixture of the laws of the Romans,. the Picts, the Saxons, the Danes and the Normans. 64 Who oom^led the first lav] hooh in England? It was' compiled by Alfred the Great, and was called the Dome Book, or Liber JudicialiSflor the general use of th& kingdom. 66 What did Alfred's Dome Book contain? (a) It contained the jjrincipal maxims of the Common Law. (b) The penalties for misdemeanors. , (c) The forms of judicial proceedings. 65 18 254 BLACKSTONE. ^Y^lat three systems of law prevailed at the heginniTig of the eleventh century f Ist. The Mercen Lage, or Mercian Law. 2nd. The ^¥est Saxon, Lage, or the laws of the West Saxons. \ , 3rd. The Dane Lage, or the Danish Law. 65 In English law lipon what does the goodness of custom - <.juent parliaments bind not. 90 X Acts of parliament that are impossible to be performed, are of no validity. 91 260 BLACKSTONE. LESSON II. BOOK I. CHAPTER I. THE ABSOLUTE RIGHTS OF INDIYIDUALg. What is a right f A right is a well founded claim enforced bj sanction. 122: Note 4.. Sow are rights divided f Into rights of persons and rights of things. 122 What is a wrong? A wrong is simply a violation of a right. 122, Note 1. How are wrongs divided? I. Private wrongs, or those which concern individuals only, and called civil injuries. II. Public wrongs, or those which effect the whole comma nity, and are called crimes or misdemeanors. How^ does Cooley classify rights? Natural, moral and legal rights. 122, Note 4. What is a natural right? ^ Natural rights are rights which are so fundamental and so essential that they ought to be universally conceded as belong- ing to man as man and universally recognized and protected by government. 122, Note 4. , Wliat are the natural rights? (a) The right of life. (b) The right to liberty. (c) The, right to form the family relation. (d) The right to acquire property. (e) The right to make contracts. 122, Note 4. QUESTIONS AND ANSWERS. 261 What is a natural person? An artificial person? Natural persons are such as the Grod of nature formed us. xirtiticial persons are such as are created and devised by human laws for the purposes of society and government, and are called corporations or bodies politic. 123, How are the rights^ of persons in their natural capacities divided? Absolute rights and relative rights. 123 What is- an absolute right? An absolute right is one which appertains to particular men merely as individuals or single persons. 123 What is a relative right? A relative right is one which is incident to men as members of society and standing in various relations to each other. 123 ITow are absolute rights summed up? The absolute rights of man are usually summed up in one general appellation and denominated the natural liberty of mankind. 125 LIBERTY. What is natural liberty? iSTatural liberty consists in the power of acting as one thinks lit without any restraint or control unless by the law of nature. 125 What is civil liberty? Civil liberty is that condition in which rights are established and protected by means of such limitations and restraints upon the actions of the individual members of the political society 'as are needed to prevent what would be injurious to other indi- viduals or prejudicial to the general welfare. 125, Note 6. What is political liberty? Political liberty consists in an effectual participation of the people in making the laws. 125, Note 6 262 - BLACKSTONE. What is political or civil liierty? Political or civil liberty is man's natural liberty so far re- strained by human laws (and no further) as is necessary and expedient for the general advantage of the public. 125 How have rights and liberties been asserted from time to time in England:^ ' ' 1. By the Magna Charta. 2. By the Confirmatio Cartarum. 3. By subsequent corroborating statutes. 4. ^-^ the Petition of Rights. 5. By the Habeas Corpus Act. 6. By the Bill of Rights delivered Feb. 16, 1688. 7. By the Acts of Settlement. 128 What is the right of personal security? This right consists in a person's legal and uninterrupted enjoyment of his life, limbs, body, health and reputation. 12& . What is, mayhem? Mayhem is the maiming of a person by depriving him of the use of his members, which are used by him in the neces- sary defense of his person. 130 What is duress J' Duress is the state of compulsion or necessity in wliich a person is influenced (whether by unlawful restraint of his liberty or threat of physical violence), to commit an offense or incur a civil liability in self protection. 130 What are the kinds of duress? 1. Duress of imprisonment, where. a person actually losea his liberty. 2. Duress per minas, where the hardship is only threatened^ by the bodily injury and loss of life or limb. 131 What are the hinds of death? Death may be either natural or civil. What is a civil death? Civil death commenced, if any man was banished, or abjured the realm by process of Common Law, or entered into a mon- estary and there became a monk. 132 QUESTIONS AND ANSWERS. 263 What is 'personal liberty? Personal liberty consists in the power of locomotion, of changing the situation, or moving one's person to whatsoever place one's inclination may direct, without imprisonment or restraint, unless by due course of law. 13i What is the Habeas Corpus Act? It is a right having for its object to bring a party before a ■ court or judge to inquire into the cause of a party's imprison- ' ment or detention by another person. 135 What is meant by due course or due process of law? This mean^, such an exertion of the powers of Government as the settled maxims of law sanction and require, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. 135, Note 15 LESSON III. Book I. CriAPTKits II and VII. ENGLISH PAELIAMENT. What is a Parliament? Parliament is the Supreme Legislative Assembly of Great Britain, consisting of the King or Queen, and the three estates of the realm, viz: The, Lords Spiritual, the Lords Temporal, and the Commons. 147 What was it called in the Saxon Period? Called Wittena Gemote, or the meeting of wise men. 148 When was parliament first constituted? In the reign- of King John, by Magn4 Charta, 1215 A. D. 149 -. 2G4 BLACKSTONE. How is Parliament assewhled ? The Parliament is regularly to be summoned by the King's Writ, issuing out of the Court of Chancery, by advice of the Privy Council, at least thirty-five days before they begin to sit. 150 Ho 10 often was Parliament required to assemble, in early times? At least once a year and oftener if need be. 151 What are the constituent parts of Parliament? They are the Iving't Majesty himself, and the three estates of the realm, or the Lords Spiritual, the Lords Temporal and Commons. 153 What are three estates of the realm? The Lords Spiritual, Lords Temporal and the Commons. 153 What part of the legislation does the Sovereign or King take? He has the executive function, or right to veto all bills. 154 How do the Lords Temporal secure their seats in Parlia- ment? 1. Some by descent. 2. Some by creation ; and , ' 3. Some by election. 157 How do Lords Sjjiritual sit? By what right? Ey the right of succession to those baronies which they held or were supposed to hold under the King. 156 What are the Commons of England? The Commons are composed of such men of property as do not hold seats in the House of Lords. 158 IIdio do they sit in the Llouse of Comtnons? By the right of property, in person or by representation. 159 What are the successive stages of making laws in Parlia- ment? To bring a Private Bill the steps are as follows: 1. Petition must be presented to Commons by a membec 2. Petition sets forth the grievance to be remedied. QUESTIONS AND ANSWERS. 265 3. "When founded upon facts that may be refuted; the petition is referred to a committee, who after examination reports to the House. i. Then leave is given to bring in the bill. £.. In public matters the bill is brought in upon motion made to the house vFithout any petition. 6. Presented to the house drawn out on paper with blank, etc., etc. 7. In the House of Lords a private bill is referred to two of the judges to examine and report on the same. 8. It is then read three different times if not lost in the first or second reading. 9. After second reading it is reported to a committee unless the house resolves itself into a committee of the whole. 10. After third reading, if passed, it is then sent to the other house. 11. If both houses pass the bill it is then sent up to the Master of Chancery to let hini kno,w that an agreement has been reached. 12. It is then sent to await the royal assent of the King in the House of Peers. 13. The royal assent is given in two ways. First, in per- son ; second, by letters patent under the great seal signed by his own hand. 14. It is then a law. 181-186 In tc hat ways may parliament be, not adjourned, hut dis- solved? 1. By the prorogation of the King. 2. Demise of the Grown. 3. By the expiration of the time allowed. 186 Wliat is an adjournment ofparlianientf A continuance of the session from one day to another. 186 What is a prorogation of parliament f A continuance of parliament from one session to another. 186 2()() BLACKSTONE. What is tlie dissdl tition of jiarU anient? It is the civil death of the parliament and is accomplished in three ways: ' 1. Will of King. 2. Demise of Crown. 3. Expiration of time. 188 How are PuUIg Bills Introduced into parliaments Public Bills are brought in upon notice made to the house without petition. ISl How are Private Bills hrought into parliamentf Private Bills are brought into parliament by a petition being preferred and presented by some naember of the house. 181 , How is the speaTcer of the House of Commons chosen? He is chosen \i^ the members and appointed by the King. 181 Who is the speaker of the House of Lords? The Lord Chancellor or the Keeper of the King's great Record and seal. 181 After the Bill lias passed the house what is the next step? It is then carried to the House of Lord^ by a member or a committee. 183 In what three ways inay parliament be dissolved? 1. By^ will of King. 2. By Demise of Crown. 3. Expiration of the time given. 188 How is parliament assembled'^ 1. By the King's Writ issued out of the Court of Chancery by advise of privy council, at least thirty -five days before it begins to sit. 150 Gould parliament he assembled without the King's Writ, under the theory of the Constitution? It could not be assembled. 150 QUESTIONS AND ANSWERS. 26T What two leading exceptions to this mlef ■ At the downfall of the Commonwealth or the Restoration of Charles II, and at the accession of William and Mary in 16SS, after the abdication of the throne by James II. 151 On what doctrine does the author sustain this action f Because the throne was vacant and the safety of the nation demanded immediate action to be taken in affairs of State. 152 Can the Sovereign veto a hill? Yes, but public policy will not allow him to do so in our day. 183 How long since the veto prerogative was last exercised hy the Crown,? By Queen Anne, 1707 A. D., 185, Note 36. Can a President of the United States veto a Bill? Yes, certainly he can, and he frequently does it. 185, Note 34- What is the distinction between the Mng''s royal negative and the president's veto ? The king*s negative is final, from whose decision there is no appeal. Congress may pass a bill, vetoed by the president, by a two-thirds vote, over his head. Who are the Lor d^ Spiritual? The members from the Established Church. 155 Who are the Lords Temporal? The nobles, peers, etc., of the land. 156 If a bill should pass by a special vote of either the Lords Temporal or Spiritual, will it be a law? , It would, as a simple majority binds the whole body together. 183 How long may parliament sit before it will dissolve itself? It may sit seven years, when it dies a civil death. 189 2G8 BLACKSTONE. THE KING'S PEEROGATIYE. What is a king's 2'>fefogat/ve ? It is that special preeminence which the 'king has over and Jibove all other persons, and out of the ordinary course of com- mon law, in right of his regal dignity. 239 , What are the dirisions or classifications of prerogatives? They are dii-ect and incidental. 240 What are direct i.rerogatives? The direct are such positive parts of the royal character as are rooted inland spring from the king's political person, considered merely by itself without reference to any extrinsic circumstances as, examples: (1) Sending embassadors, (2) Creating peers. (3) Making war and peace. 240 What are incidental prerogative?.? They are those prerogatives which always bear a relation dis- tinct from the king's person, and are really only exceptions in favor of the Crown; as no costs shall be incurred against the king, etc. 240 What three hinds of direct or substantive 'prerogatives are there? (1) His royal character. (2) Royal authority. (3) Eoyal income. 240 . What is meant by the king's political character or royal dignity? By royal dignity of the king is meant those attributes of a^ great and transcendent nature, by \yhich the people are led to consider him in the light of a superior being, and hence pay him that awful respect which will enable him, with greater ease, to carry on the affairs of his government. 241 QUESTIONS AND ANSWERS. 269" What is meant iy sovereignty? , Tlie pre-eminent political power. 242 What redress can a subject get for private wrongs in England? He may petition the Court of Chancery where the chancellor will administer right, as a matter of grace, though not upon compulsion. 243 What redress can he had for publio wrongs in England? The king's evil counsellors or ministers may be examined and punished for the wrong done the public ib ill advising the king. 244 What is a king'' s perfection? The king can do no wx;ong (in himself) as the prerogative of the crown extends not lo do an injury, it is created to benelit the people and hencei cannot be exerted to prejudice them. 24& What do we mean by laohes? Laches is negligence, consisting in the omission of doing something which might have been ,done towards the vindica- tion or enforcement of rights. 247 Can the king do or think a wrong? i He cannot. 246 Why cannot a king be guilty of laches? Because the king is always busied with the public good and has no time in which . to assert his rights within the time limited to subjects. 247 What do we mean by the royal perpetuity ? An absolute immortality ; the king never dies. 249 Wliat is meant by the death t of tithes? {1) They are predial as corn, grass, hops or wood, or (2) They are mixed as wool, milk, pigs,'etc. (3) They are personal, as manual labor, etc. 2i What are commons? A common is a profit which a man has in land of another; as to feed beasts, catch fish, dig txirf, or cut wood. What are the four hinds of commons? (1) Pasture (2), Piscary (3), Turbary and (4) Estovers. Define each? (1) Common of pasture is the right of feeding one's beast on another's land. -78 BLACKSTONE. (2) Common of Piscaiy is the right of fishing in another man's waters. (3) Common of Turbary is the right of digging turf in another's field. (4) Common of Estovers is the right of taking necessary wood for the use of furniture, house or farm from another's "land. 32 What is a way? It is the right of going over another man's ground. 35 Sow may these ways he secured or obtained? They may be founded on permission, grant, prescription or by act of law. 35 What are f ranch Ise^s' ? They are royal privileges or a branch of the kings prero- gative subsisting in the hands of the subject. 37 What are annuities? Annuities are the vearly sums of money charged upon the persons, and not upon the lands. 40 What are dignities? Dignities are titles of honor, and bear no relation to offices. 37 What are corodies? Corodies are the right of sustenance, or to receive a certain allotment of victuals and provisions for one's maintenance. 40 What are rents? They are certain protits issuing yearly out of lands and tenements corporeal. 41 What Is a curtilage? A yard, court yard, or piece of ground lying near to a dwell- ing house, and included within the same fence. What does a deed of water convey? The right to use the water, but not to own the land under it. 18 QUESTIONS AND ANSWERS. 279 How could you hring an action to recover possession of a pool or pond? Bring an action for the recovery of land at the bottom of the pool or pond. 18 What three kinds of rents liave we? Kent service, rent charge and rent seek. 42 LESSON V. Chapters IV and Y. BOOK II. FEUDAL TENUllES. What was the origin of the Fexulal system? The Feudal system originated from the military policies of the Northern or Celtic nations, as the Goths, Huns, Franks, etc., etc. 45 What was the military policy of these nations? The policy was for the conquering general to allot out large districts, or parcels of land, to the superior officers of his army, who, in turn, dealt out smaller allotments, or parcels of land to the inferior officers, or most deserving soldiers. 45 What loere these allotments called? They were called feoda, feuds, fifes, or fees, and fees meant in the northern language, a stipend or rewards 45 280 BLACKSTONE. What were the requirements of the possessor of a feud or fee? (1) That the possessor of the feud should do service both at home and in war to hira by whom they were given. (2) To take the oath of fealty. ' In case of a non-performance of these requirements the land reverted back to him who gave it. 46 When was this system first introduced^into England? As early as 600, A. D., by the Saxons, but they did not come into full force and \igor until introduced by William, the Norman Conqueror. 48 What was the Dom^esday l)ooh? It was a book comprised of two volumes, containing a sur- vey of all the lands of the Crown, and taken in 1085-6, A. D. 50, Note 2 WJiat irijs the Dome Booh? The Dome Book was a book compiled by Alfred the Great> and contained all of the maxims of common law extant at that time, with puiiisliments for misdemeanors. Book, 1 65 What was meant by the oath of fealty? It was the oath which the vassal took to be faithful to his lord, 53 117/^^; is meant hy doing Jiomage? The vassal, or tenant, upon investure of the feud did homage to his lord by "openly and humbly kneeling before the lord, being ungirt, and the head uncovered, and holding up both hands, folded together, between the hands of the lord who sat before him, and thus confessing that - he did liecome his man from that day forth of life and limb and earthly honor,' and then he received a kiss from his lord." 54 What is the fmulamental maxim, of all feudal tenv/res? That all lands are holden mediately, or immediately from the Crown. 53 QUESTIONS AND ANSWERS. 281 What was the grantor called? The grantee? He was called the proprietor, or lord. The grantee, the vassal. What was the manner in which the feud was granted? By words of gratuitous, or pure donatioji. 53 How was the grant perfected? The grant was perfected by the ceremony of corporal inves- ture, or open and notorious delivery of possession in the pres- ence of other vassals. 63 What was the technical meaning of f tied? The meaning was a reward or stipend. 45 . What were the steps in donation of a feud? First step: Tlie gratuitous or pure donation. Second step: The corporal in vesture, or the livery of seizin. 53-54-55 Third step: Oath of fealty. . • Fourth step: Doing homage. Fifth step: The service. Whutis a corporal invest are? The corporal investure was the o^en and notorious deliv- ery of possession of the fued or grant in the presence of other vassals. 53 Wliat is the final step of a grant ? It was the service or reditus which the tenant was to pay for the grant or feud. 54 What was the length of time that the fetids loere first donated? (1) They were first held at the will of the lord or were pre- carious, 55 ' (2) Then they became certain for one or more years. (3) Then they begun ^to be granted for life of the feuda- tory. 282 BLACKSTONE. (4) Then finally they became hereditary to the sons of the first vassal. (5) Then they became hereditary to any of the male descen- dents. 55 What prohibitions loere put upon the feud hy the lord? (1) The vassal conld not alien or dispose of his feud. (2) He could not exchange or mortgage it nor devise by ■will without the consent of the lord. 67 Who was the Lord Paramount? The king is styled the Lord Paramount. 59 Who were the mesne lords? They were the- middle lords, or those who were both lord and tenant. 59 Who were tenants par avail? Those of the lowest caste, who.wei'e supposed to make avail or profit out of the land. 60 What is meant iy allodium lands? They were such estates of the subject as are not hold en to any superior. The name which foreign feudists give thore lands. 60 What were tenants in capite or chief? Those lords who held their feuds directly from, the king. 60 What is said of the tenure? It was the most honorable species of tenure, yet it was more burdensome than that impossed upon the inferior tenants. 60 Wliat is a tenem.ent? _ A tenement is anything which may be holden, provided it be permanent. 59 What is a tenant? A tenant is the possessor of a tenement. 59 What is a tenure? . A tenure is the manner of holding or occupying a tenement. 59 " , QUESTIONS AND ANSWERS. , 283 KINDS OF SERVICE AKD TENURES. What ivere the four kinds of service? Free and base, certain and uncertain. 61 What xoas free service? Free service was such as was not nnbecomino' a soldier or gentleman to perform; as to serve in war, pay a sum of money, etc., 61 What loere iase services? Base services were such as were fit only for peasants or per. sons of servile rank to perform; as to plough the lord's land, trim his hedges, carry out his dung, etc., etc. 61 What were certain services? Certain services can be either free or base, and consisted of such work as was limited in quantity and could not be exceeded on any pretense; as to pay a stated annual rent or plough a certain field for three days. 61 What were uncertain services? Uncertain services were such as depended iipon unknown contingencies, as to do military service, or pay a fee instead of doing it, if called upon, or to wind a horn upon an invasion of the Scotch, or to do whatever the lord commanded, they are both free and base. 61 What has arisen Jroin these various services? Four kinds of tenure have arisen. 61 Name the four I'inds of tenure. (1) Knight Service. (2) Free Socage. (3) Pure Villanage, base and uncertain. (4) Privileged Yillanage, or villein socage, which is base, certain. 62 What is meant iy free socage? Free socage is that kind of tenure where the service is cer- tain and honorable and free, as by fealty or rent and fealty. 62 2Si BL.VCKSTONE. What tvas the highest tenure linoion to law? It was the tenure of Knight Service. What is pure villa nage? Pare villanage is the tenure whose service is to do what- ever is commanded and is always base and uncertain. 62 What is PrivUcgeil Yillanage or Villein Socage? This is the tenure whose service is alvrays base but cer- tain. 62 What was Knight Service? The tenure of Knight Service was the .service which W9,s free but uncertain, as military service with homage. 62 Briefly review these tenures in their order of prominence? (1) Knight Service which was free and uncertain service. (2) Free Socage which was free and certain service. (0) Pure' Yillanage which was base and uncertain service (4) Priviliged Yillianage or villein socage which wa,s base and certain. What was aknighfs fees? Roivmuch land for the fee? It was twelve plough lands (in 3 Ed. I.) equal to about 600 to 1,200 acres. 62 Wliat was the Jtnighfs service as 'pay for this land? He was bound to attend his lord to the war forty days in each year if called upon, which was called his re(;litus or rent for the land he claimed to hold.' 62 How was the tenure of knight service granted? (1) It was granted by words of pure donation. (2) It was conferred by investiture or delivering corporal possession of the land usually called Livery of Seizin. (3) And was perfected by the oath of fealty and hom- age. 63 ' QUESTIONS AND ANSWERS. 285 THE FRUITS OF KNIGHT SERVICE. What loere the fruits of this Knight Service f {I) Aids. (2) Reliefs. (3) Primer Seizin. (4) Wardships. (5) Marriages. (6) Fines for Alienation. (7) Escheats. 63 What were aids? Aids were benevolences granted by the tenant to his lord in times of difSciilty and distress. 63 How Tnany aids were there? Name them. There were three aids. (1) To ransom the lord's body. (2) To make the lord's eldest son a knight, (3) To marry the lord's eldest daughter by settling a sum of money upon her. 64-65 What seruice other than follow his lord must the tenant render? Attend in courts of justice, give aids and help pay debts. 64 What were reliefs? They were tines or composition which the lord could charge for taking up the estate, which by the feudal law had lapsed or fallen by the death of the tenant. 65 On what theory were reliefs granted? On the theory that the lord had lifted iip the feud. 65 What was Primer Siesln? \ Primer Siezin was a right which the king had, when any of his tenants in chief died, who were siezed of a knight's fee or feud, to receive from the heir (provided he was of age) one whole year's profits of the lands if they were in immediate possession and half a year's profits if the land were in rever- sion, expectant on an estate for life. 66 20 286 BLACKSTONE. What are Wardships? The Wardship consisted in the lord having the custody of tTie body and lands of the ward or heir vvithuut any account of the profits till the age of twenty-one in males and sixteen in females. 67 Why were the lords not permitted or compelled to make an account of the incomes of their toardf Because the ma,le heirs could not in the eyes of the law, , perform the duties of Knight Service till twenty-one and the girl at fourteen could marry and Iher husband could act for her. 67 WJiat are tnarriages ? The right of marriages is the power which the lord or guar- dian in chivalry had in disposing of his infant ward in matri- mony. 70. What happened if the ward refused the offer of marriage f He forfeited the value of the marriage, deterniined by a jury. 70 What happened if the ward married without the guardian's consent? He forfeited double the value of the marriage such as would be assessed by a jury. 70 What' were fines for alienation ? These fines were certain suras due the lord for every aliena- tion, whenever the tenant had occasion to make over his land to another. 72 What were escheats? (1) An escheat is the determination of the tenure, or a dis- solution of the mutual bond between the lord and tenant, from the extinction of the blood of the latter by either natural or civil means. Elk. "Vol. II, 71 § 7 (extinction of name or of attainder in blood.) (2) An escheat is an interruption of the course of descent by a failure, or corruption of blood. 72 In such cases what became of the land? It returned to the lord of the fee or feud. 72 QUESTIONS AND ANSWERS. 287 WTiitt services other than follolv his lord to war was imposed upon the tenants (1) The tenure by grand savjeanty; — serving as butler, carrying king's sword, banner, etc. (2) The tenure by cornage. 73 What was escuage, or scutage? Escuage was a payment of the service in money, instead of going to war in person to do military service. 74: What is Cooley^s definition of an incorporeal herediti- ment? An incorporeal hereditament is any intangible right capable of being inherited. 20, Note 1 Can personal property he inherited? Personal property cannot be inherited. LESSON VI. Chapter VI and YII. BOOK II. TENURES ABOLISRED. What tenures were abolished and what p>reserved hy the Statute of Charles 11, King of England .'' During the reign of Charles II, all tenures, except frankal- moigne, grand sarjeanty and copyholds, were reduced to one general species of tenure, known as free and common socage. 78 What was frankalmoigne temiref The frankalmoigne tenure was a spiritual tenure, whereby a religious corporation, aggregate, or sole, holds lands of the donor to them and their successors forever. 101 288 ' BLACKSTONE- What was the military tenure, or Icnight service? It was the most honorable and free service, but in. its nature was uncertain in regards to the time of its perform- ance. 78 Of what did the second tenure free socage consist? It was also free in its nature, and reduced to an absolute certainty. 78 What great changes has tali en place in regards to this tenure? It exists down to the present day, but has, in a manner, as it were; swallowed up every other tenure, except frankalmoigne grand sarjeanty and copy holds. 78 SOCAGE. Whflt dois socage viv its most general signification denote? It seems to denote a tenure by any certain and determinate service. 79 With what service did ancient writers coivstantly put this socage in opposition? It was put in opposition to chivalry, or knight service, which was rendered precarious or uncertain, while socage was certain 79. IIov} many sorts or Idnds of socage had they? They had two kinds; free socage and villein socage. 79 Define each hind of socage ? (1) Free socage is that tenure whose service is free anc certain, and honorable to be performed. (2) Villein socage is that ,tenure .whose service is certair and base the same as privileged villanage. 79 What %s the m.osv accepted etymology of the vjord: socage^ From the saxon soc, which means liberty or privilege. 8(/ What is the meaning of feoffment? A feoffment was a gift, or conveyance, in fee of any land or other corporeal hereditaments accompanied by the actual delivery over of possession of the same. 310 QUESTIONS AND ANSWERS. 289 Wlmt is the leading okaraoteristic of all socage service? It was certain and determinate service. 80 ^Yhat was tenure hy grand sarjeanty? This was that tenure where the service was free and uncer- tain, where the tenure was to carry the king's sword, his ban- ner, or to be his butler, etc., etc. 73 What was tenure by carnage? This was a species of grand sarjeanty, and consisted in \vind- ing a liorn when the Scots, or other enemies threatened a raid, etc. 73 What does free and common socage include? It includes aU methods of holding free lands by certain in- variable rents and duties, and in particular the (1) Petit sergeanty(2)Tenure in Burgage and Gavelkind. 81 Is grand serjeanty totally abolished hy Statute of Chas. Ilf It is not; the honorary services are still retained. 81 What is the difference between petit and grand ser geanty? Petit sergeanty, the service rendered the King for holding land, was not of a personal nature, but consisted in rendering him annually some small implement of war, as a sword, bow, lance, arrow, etc. While in grand sergeanty the service was of a personal nature, and consisted in the tenant doing some- honorary service, as to carry the king's sword or his banner, or act as his butler, special carrier, as his courier, etc. 82 Why were these renders in petit sergeanty made? They were made as a show of paying a certain rent fee for lands. 82 What was tenure in burgage? It is 'when the King or some other person is lord of an ancient borough in which thp lands or tenements are held by rent certain. 82 290 BLACKSTONE. It is really only a form of time socage, or common socage by which lands are holden, and is usually of a rural nature. 82 How is a borough distinguished from other towns? By the right of sending members to parliament. 82 What is the principal and most remarJcahle custom of Saxon liberty called and defined. It was called Borough English and was to the effect that the youngest son, and not the eldest was to succeed to the ten- ement or hereditament, on the death of the father. 83 Name three points in which tenure in free socage partakes of the feudal nature? (1) Both were held of superior lords.- (3) Both were subject to the feudal return, render or service which arose from a supposed original grant by the Lord to the tenant. (3) Both were universally subject to the oath of fealty In f kct all of the seven aids in knight service also existed in socage. Jiow are the lands of the present day in Eixgland holden? By the universal system of free and common socage. 102 What were the four {^ distinguished proferties of Gavel- kind tenures? (1) The tenant is of sufficient age to alienate his estate by feoffment at fifteen. (2) The estate does not escheat in case of attainder in the blood and execution for felony, " the father to the bough, the sons to the plough." (3) The tenant in most cases had the power of devising lands by will before the statute for that purpose was made. (4r) The lands descend to all sons equally. 84 What happened at the Restoration ^in 1660? The tenure of knight service and frfee socage was merged into that of free socage, and all lands are now holden by free and comm6n socage. QUESTIONS AND ANSWERS. 291 What was the other grand division of tenure? The tenure of villanages: pure villanage, which was base and uncertain, privileged villanage, or villein socage, which was base and certain. 89 What has sprung from ths tenure of pure villanage, iase and uncertain? ^ We have from this, tenure of copyhold. 90 What was a tenure in copyhold? or a copy hold ' tenure? A copyhold tenure is that service which originated from pure villanage, the tenants of whom were originally villeins, but whom by a long series of encroachments upon the lords, had at last established a customary right to the estates, which before were held absolutely at the will of the lord. These customs were evidenced by the rolls of the Courts Baron, in which they were entered and kept on foot by the constant usage of the manors in which the lands lay. So they began to be called tenants by copy of the court roll, and hence, such a tenure is a copyhold. 90' What was an English manor and its constituent parts? ~- It was a district of ground held by lords or great barons or personages, who kept in their own hands such landp as were necessary for the use of theif families, which were called the mesne lands, or those which were occupied by the lord and his servants. The other lands were distributed among their tenants which were distinguished by two different names. (1) Book land or Charter lands and (2) and Folk land. 90 Define Booh land or Charter land? This was land held by a deed under certain rents and free services, was the same in respect as free socage land. ' Define Folh land? This was land that was held by no writing or deed, but simply detained by the lord among the common folks at will, and he could take it away as well. 90 292 BI.ACKSTONE. I YILLANAGE. ( From wlwbt one of the four hinds of tenure did copyhold originate? From the tenure of pure villanage, which was base, uncer- tain. 90 What is pure villanage? It is an uncertain and slavisji tenure at the absolute will of the lord upon uncertain services of the basest nature. 92 What is privileged villanage or villein socage, hase cer- tain? It is an elevated species of copyhold tenure upon base but certain services. But tlie tenants could not alien or transfer^ their tenements by grant or feoffment any more than could pure villeins. 93 What were the two classes of villeins? Villeins regardant and villeins in gross, 93 What was a villein regardant? He was one that was annexed to the manor or land. 93 What was a villein in gross? He was one that was annexed to the person of the lord and transferable by deed from one to another, 93 What were villeins? They were a class of persons in the downright servitude under the Saxon government, who were not only'used and em- ployed in the most servile works, but belonged both they and their children and their effects to the lord of the soil. 93 Was there any thing in copyhold tenures incident tc other tenwres? ' ' They were subject, like socage tenures, to services, relief, escheats, heriots, wardship and fines or allienation and descent. 97 QUESTIONS AND ANSWERS. 293 What is meant hy Borough English^ It is an incident of burgage tenure and provides that the youngest instead of the oldest shall succeed to the burgage tenement upon the death of the father; by reason of the custom of merchants. 83. ' What were heriots? Heriots were a render to the lord by the tenant of the best beast or other goods on the death of a tenant. 97 FRUITS OF SOCAGE. What were reliefs in socage f A socage relief was one year's rent, or render, payable by the tenant to the lord, be it great or small, while a relief^in knight service, or a knight-fee, was £5, or one- fourth the value of the land. 87 Where and how does the payment of the two reliefs differ f Keliefs in kpight service were only payable if the heir at the death of his ancestor was of fall age. But in socage they were due even if the heir was under age at the death of the ancestor because the lord had no wardship over him. 87 What was primer seisein in socage? Primer seizin existed with tenants in knight service and in capite, but are entirely abolished by the statute. 87 What were wardships in socage? TFardships in socage are very different from those in knight service. Because if the inheritance descends to an infant under fourteen years of age, the ^jardship does not belong to the lord of the fee, while in knight service it did. 87 Why was there no cause for the lord to hold the wardship in socage? Because in socage tenure there was no military or other personal service required, which would make it necessary for the lord to secure a substitute for his ward. 87 294 BLACKSTONE. Who shall he the heir^s guardian in socage tenure? The nearest relative to whom the inheritance cannot descend. 88 When does wardship in socage cease? At the age of fourteen years it ceases, for at this age the law supposes him capable of choosing a guardian. 88 What disadvantage was therd in this- change of wardship? It was that young heirs left at this tender age to choose their own guardians until twenty-one, might make an injudi- cious choice from their indiscretion. 88 How was this emergency remedied? The father could appoint a guardian by will for the heir, and also the court of chancery could interpose and name the • guardian to prevent the infant heir from being exposed to ruin. 88 What was marriage in socage tenure? It existed, but was of no advantage to the guardian, but was rather the reverse. 88 How was it the reverse to a guardian? The guardian was bound to account to the ward for all the value of the marriage, even though he took nothing for it, if he married his ward under age. 89 What is said of fines in socage tenure? If they existed at all they were abolished by the Statute Chas. II. 89 Were there escheats in socage tenure? There were, except only in Gavelkind lands, which were subject to no escheats for felony, yet they were for want of heirs. 89 What tenures were abolished and what retained by the Statute of Charles II? All tenures in general, except frankalmoigne, grand serjeanty and copyhold were merged or reduced into one species of tenure, known as free and common socage. 89 QUESTIONS AND ANSWERS. 295 Of what lands were the manors made upf 1. Demesne Lands. 2. Tenemental Lands. Book Lands. Folk Lands. 3. Waste Lands or Commons. 90 . Could a villein aoquvre property or goods P He could not, and if he did his lord could take it all. 93 What was the state of the children of villeins .^ The same as their parents, holden to the lord of the manor- 94 What resulted from intermarriage of freemen and villeins? If the husband was a freeman the wife became free. If the husband was a villein the wife became a villein also. 94 What is manuinission ? Manumission was the act of liberating a slave or villein and giving hini his freedom. It was either expressed or implied. 94 Define expressed and implied manumissions. Expressed where a man granted to his villein a deed of manumission. Implied where a man bound himself in a bond to villein for a sum of money, granted him an annuity by deed, or gave him an estate in fee for life or a number of years. 94 What are the two main principles witJiout which a copy- nold tenure ca-rvnot exist? 1. The land must be a part of and situated within the manor under which it is held. 2. That the lands have been demised, or demisable, by a copy of court roll immemorially, as immemorial custoin is the life of all tenures by copy, and as a consequence, no hew copy hold (strictly speaking) can be granted at this day. 97 What are the two kinds of copyholds? 1. Copyholds by inheritance, where the heir succeeds the; tenant in his tenure by a customary permit. 2. Copyholds for life, where the lords permit them to hold for life only. 97 296 BLACKSTONE. What are some of the fruits of a copyhold tenure in com- mon with a freehold temoref They are fealty, rent and other services, relief and escheats. What else have copyholds besides these? They have heriots, wardships s-nd fines. 97 What are ancient demesne lands? Ancient demesne lands consist of those lands or manor, which, though, now perhaps granted out to private subjects* were actually in the hands of the crown in the time of Edward the Confessor and William the Conquerer, and appeared in the Domesday book. 99 What was a tenure in frankalmoignef It is that tenure where a religious corporation, aggregate, or sole, holds lands of the donor, to them and their successors forever. 101 What are the hind of lands in the United States? They are allodial lands, because they are holden to no superior. The Tenure is allodial tenure also. 102, Note 7 ESTATES. What is ar- *tate? An estate i? >n interest a person nas in lands, tenements or hereditaments. 103 What is it called in latin and what does it signify? An estate in latin is called status and signifies the conditions or circumstance in which the owner stands in regard to his property. 103 ' In what three fold ways may estates he .considered? 1. With regards the quantity of interest, which the tenant has in the tenement, measured by duration and extent. 2 With regards to the time at which that quantity of inter- est is to be enjoyed. QUESTIONS AND ANSWERS. 297 3. Witli regard to the mimber and connections of the tenants. 10 i What is 7neant hy the quantity of interest measured iy dv/r- dtion and extent? 1. His right of possession is to subsist for an uncertain period during his own life or that of another man. 2. His right of possession is to end at his own death or to remain to his descendants after him. 3. As it may be limited to ascertain number of years, months and days, or 4. The right may be infinite and unlimited, being vested in him and his heirs forever. 104 'What are the 'prima/ry divisions of estates? 1. Freehold and 2. Less than freehold. 104 What is a freehold or Frank tenement? A freehold is such an estate as actually requires possession of the land; or, a freehold is such an estate as in lands as is conveyed by the livery of siezin or in tenements of any incor- poreal nature, by what is equivalent to the same. 104 What estates were jprop^rly freehold and why? 1. Estates of inheritance. 2. Estates not of inheritance or for life only. Because these could only be conveyed by livery of siezin. 104 How are estates of inheritance divided? . Estates of inheritance are divided into two classes which are: 1. Absolute or foe simple and (2) Inheritance limited. 104 What is fee tail? It is a species of inheritance.^ What is a tenant in fee simple or a teriant in fee? A tenant in fee simple or in fee is one who has lands, tene- ments or hereditaments to hold to himself and his heirs for- ever. 104 298 BLACKSTONE. What is the true meaning of the word fee? It means the same as that of feud or fief, and in its original sense is taken in contra-distinction to that of allodium. 105 What is the meaning of allodium? Allodium lands are a man's own lands which he possesses in his own right without owing any rent or service to any supe- rior. 105 What is a definition of fee or feud? I A feud or fee is the right which the vassal or tenant has in lands to us'e the same and take the profits to him and his heirs rendering to his lord the due service, while allodial propriety. of the soil remains with the lord. 105 ITow do the later lawyers use the word fee? Not in the original or primary sense but to express the con- tinuance or quantity of an estate. 106 What does a fee in general signify? Simply a state of inheritance. 106 What is the distinction ietween fees corporeal, and inoor- 'poreal hereditament? 1. In corporeal hereditaments or corporeal inheritance he is seized " in his demesne, as of fee." 2. In incorporeal inheritance he is seized " as. of fee " and not in his demesne. 106 In whom is the fee simple generally vested? The fee simple of lands and tenements is generally vested and resides in some person or other though there may be many inferior estates carved out of this. 107 What is meant iy the fee being in abeyance? In expectance or remembrance or contemplation of an heir or a successor who succeeds to the fee and freehold. 107 What word is fiecessary in a grant or donation in order to make a fee an inheritance? The word heirs must be in every grant or donation. 107 QUESTIONS AND ANSWERS. 299 I What loere the two sets of limited fees? 1. Qualified or base fees. 2. Conditional or pees tail. 109 What was a qualified or base fee? A qualified or base fee is one that has a qualification sub- joined to it, and which must terminate whenever this qualfi- cation annexed to it ends. As where a grant to A as tenant of the Manor of Dale. Whenever he ceases to be a tenant the fee ends. What was a conditional fee or fee tail? This was a fee restrained to sense particular heirs, exclu- sive of others, as " to the heirs of a man's body" or " to the heir's male of his body.'' 110 Why was it called a conditional fee? By reason of the conditions expressed or implied in it, if the donee died without such heirs, the land reverted back to don- or. 110 What things may he entailed? All tenements vt^hatever can be entailed, which includes all corporeal and incorporeal hereditamentswhich savor of realty. 113 Can mere personal chattels he entailed? They cannot, neither can an office or an annuity, nor an estate to a man and his heirs for another's life, nor a copy- hold. 113 ESTATES TAIL. What are the species of the estates tail? Estates tail are either general or special. 113 Define each? Tail general is where the lands and tenements are given to one, and "the heirs of his body begotten." Often married, no matter. 113 300 BLACKSTONE, , Tail special is where the gift is restrained to certain heirs of the body. This may be done in several ways, as "given to a man and the heirs of his body, on Mary, his now wife, to be begotten." 113 WJiut word is necessary to create a fee tail? The word " body." 114 What is frankmarriage? They are estates entail where" tenements are given by one man to another, together with his wife, who is the daughter or couein of the donor, to hold in frankmarriage. 115 What are the incidents to a tenancy in tail? 1. The tenant in tail may commit waste on the estates . tail. 2. The wife of the tenant in tail, shall have her dower, or one-third of the estate tail. • 3. That the husband of a female tenant in tail may be tenant by courtesy of the estate in tail. 4. That an estate in tail may be barred or destroyed by a fine, by common recovery, or by lineal warranty descending with assets to the heirs. 116 What was the result of estates tail? Dissensions of every description and all kinds of frauds. 116 Distinguish between estates and tenures? An estate is the interest that one has in a land, tenement or heriditament, while a tenure denotes the manner of holding property. 103 What is the difference between tenure and titled A tenure is the manner of holding a tenement, while a title is the means of holding it. 195 Can a living person have heirs? He cannot. QUESTIONS AND ANSWERS. 301 LESSON VII. Book II. Chapters YIII and IX. What do the chapters of this lesson treat of respectively ? Chapter VIII, of Free holds, not of inheritance. 120 Chapter IX of Estates less than freehold. 139 What are estates not of inheritance? They are free holds foj* life only. 120 What are the divisions of estates not of inheritance? They are : (1) Conventional estates and (2) Legal estates. 120 LIFE ESTATES. What are life estates?" Life estates, which are expressly created by deed or grant, are where a lease is made of lands or tenements to a man to hold for the term of his own life, or for the life of another , person, or for the lives of more than one person, in any of which instances he is styled a tenant for life. 120 WAa^ is a tenant for life? One who holds a life estate in land or tenement, or for that of any other person which is called {pur auter vi^. 120 Wfuit is a conventional life estate? A conventional life estate is one which is expressly created by the acts of the parties. 120 What is a legal life estate? A legal life estate is one which is created by construction and operation of the law. 12 What hvnd of a grant is " a grant to A forever"? It is a life estate only, wanting the word "heirs." 121 What is " a grant to X as long as she is a widow? It is a life estate only, 121 21 302 BLACKSTONE, What is a tenant for life? A tenant for life is one who holds lands or tenements for the term of his own life or for that of another person, in which case it is called "j>'M7* autervie". or for more lives than one. 120 What are- the incidents to a life estate? i 1. Every tenant for life, unless restrained by covenant or agreement, may of common right take upon him from the land demised reasonable estoveis or botes. 2. Every tenant for life, or his representatives, shall not be prejudiced by any sadden. determination of his estate, as such termination is contingent and uncertain and hence he shall have emblements. 3. Every under tenant of a life estate shall have equal or even greater powers than the tenants themselves or original lessors. 122-124 Were these estates for life of a feudal natv/re? Yes, they were of a feudal nature, and were given and con- ferred by the same feudal rights or solemnities, and the same corporal investiture, or livery of seizin, as fees themselves are. 120 Are they held hy fealty? They are if demanded, and such conventional rents and services as the lessor and' lessee have agreed upon. 120 When an estate is granted to a man for life how may it end? It may terminate by his civil death. 121 What is the distinction hetween civil and natural death? , In civil death, as where he enters a monastery, or is ban- ished, and in natural death where he dies and is buried in the ground. 121 ' What is the rule of law in regard to grants? All grants are to be taken most strongly against the grantor except in the case of the king. 121 QUESTIONS AND ANSWERS. 303 Are there any estates for life which determine on a con- tingency? Yes, in the case of a grant to a widow till she marry or the promotion of a man to a benefice. 121 What is the rigid of estover i/noident to a life estate? He m9,y take from the land all reasonable estovers, but he must not commit unreasonable waste. 122 What is the right of emblements, incident to a life estate? Thej are crops or profits which a tenant, and in case of his death, his executors or heirs, may take from the land, and con- sist of those vegetables, or chattels, as corn, wheat, etc., which are produced annually by industry of the tenalnt. 122 When will the tenant receive emblements? Whenever the estate is not determined by his own act. 122 Can emblements he tahen for- perennial crops? They cannot, as they were clearly planted for future use.123 What privileges had the under tenants? 1. The lessee could take emblements where the lessor cannot as in case of termination of the estate or 'marriage of a widow. 2. The lessee or under tenants in case of the death of the tenants could quit the land without paying the rent. 123 When an estate is determined hy operation of the law, what right has the tenant? He shall have the emblements. 123 ' When will the emblements go to the grantor? "When the tenant for life terminates the estate by his own acts. 123 What is the difference between actual seizin and seizin in law? An actual seizin is the actual possession of the freehold estate or a seizin in deed ; while a Seizin in law is where the grantor gives the grantee a bare right to possession only. 124 304 BLACKSTONE. What is the second estate for life of the legal kind? It is that "of tenant in tail after possibility of issue extinct."" When does this happen? It happens where one is tenant in special tail, and the per- son from whose body the issue was to spring, dies, or having left issue, that issue dies or becomes extinct. 124 Illustrate '■'tenant in tail after possibility of issue extinct.'^ As where A has an estate to him on his heirs on the body of his present wife to be begotten, and the wife dies without an issue. 124 Why could he not have heen called "tena?it in fee tail spec- ial"? Because he has no longer an estate of inheritance or fee, for he can have no heirs capable of taking it by this form. 124 Why would "tenant in tail without issue" not do? Because this would only relate to the present fact and would not exclude the possibility of future issue. 125 Why not "tenant in tail without possibility of issue"? This would exclude time past as well as present, and he might never have had any possibility of issue. 125 Why is "tenant in tail after possibility of issue extinct" correct? Because it covers the ground exactly, because it takes in the possibility of issue in tail ^Vhich he once had but which is now gone forever., 125 How must such an estate be created? Through God, by the death of the person. 125 What is a "tenant by courtesy, of England"? It is where a man marries a woman seized of an estate of inheritance, of lands and tenements in fee simple and in fee tail; and has by her, issue which was born alive and capable of inheriting the estate, and hence at her death he becomes tenant for life of the estate. 126 QUESTIONS AND ANSWERS. 305 WTiat are the four requisites for a tenancy by courtesy f 1. Marriage. 2. Seizin of wife. 3. Issue. 4. Death of wife. 127 What is said of the requisite of marriage? - It must be canonical and legal. 227 What is said of the requisite seizin? The seizin must be ah actual seizin or possession of the land by-deed and not a bare right only to possess, which is called a seizin in law. 127 Oan a man be tenant hy courtesy of a remainder or rever- sion? No, he cannot; because the seizin must be actual. 127 How may one he tenant hy courtesy without aotuMl seizin? He can do so in case of an advowson, no actual seizin being possible. T27 If the wife ie an idiot can hushand have tenancy hy court- esy? He cannot, as the marriage was absolutely void on its face, for want of legal capacity to perform the marriage contract. 127 . ' Wimt is said of the issue? The issue must be born alive, during the life of the mother, otherwise if the infant is born during confinement after the- death of its mother, it inherits the mother's estate at once.. 127 What is the exception to the rule for necessity of issue?' In Gavel-kind lands the husband might be tenant by court- esy without issue. 128 What is the general rule of tenancy hy courtesy? There must be issue born capable of inheriting the estate., 128 When is the husband's estate hy courtesy consurthtnate?' It is consummate at the death of the wife. 138 306 BLACKSTONE. BOWER. What is a tenant in dower f A. tenant in dower is where the husband of a woman is seized of an estate and dies, in which case the wife shall have the third part of all the lands and tenements, whereof he was seized at any time during their coverture to hold to herself during the term of her natural life. 129 What is dower? ' Dower is the provision which the law makes for the wife and widow, out of the lands and tenements of her husband, for her support and the nurture of her children and their educa-, tion. 129 What was the dower allowed in GavelJcind? The half of the estate on condition that the widow would remain chastcand unmarried. In treating of dower, what do we consider? 1. Who may be endowed. 2. Of what she may be endowed. 3. How she shall be endowed. 4. How the dower may be barred. 130 . What was the .origin and meaning of dower? It possibly originated with us from the Danes. 129 What dower did the widow receive from lands in Borough H^nglish? ^ i She received the whole of the estate. 132 What dower did she receive in copyhold or freebench? In copyhold of such lands as the husband was seized of at his death. In freebeneh, of such land as the husband died seized. 132 Who may he endowed? The actual wife of the party at the time of his decease. If she' be divorced *' a vincula matrimonii " she gets no dower. But a divorce " a mensa et thora'' does not destroy dower. 130 QUESTIONS AND ANSWERS. 307 How may a woman lose her dower? 1. She will lose her dower by elopement and continued adul- tery. 2. The wife of a felon or traitor, by ancient law, loses her dower. ' 3. An alien cannot be endowed, except she be queen con- sort, (now changed). 136 Of what may the wife he endowed? She is entitled by law to be endowed of all the lands and tenements of which her husband was seized, in fee simple or fee tail, at any time during the coverture, and of which any issue which she might have had might by possibility have been an heir. 131 Is a seizin in law effectual to a wife's dower? A seizin in law is as effectiialas a seizin in deed. 131. Will seizin of hushand for " a transitory instant " give dower? This will not entitle the wife to dower, but if the land abides in him for a moment only, she can be endowed, it seems. 131 Of what may she ie endowed ? Of all the husband's lands, tenements, or hereditaments, either corporeal or incorporeal, if they partake of the nature of realty. 131 What estates are not liable to dovjer? 1. Copyhold estates, being liable to the lord's will. 2. Castles built for defense of the realm. 3. Commons without stint. 132 What a/re the four species of dower extant? 1. Dower by common law. 2. Dower by particular custom, as in Gavel-kind, where the wife gets half the estate, or in some places the whole of it; in others only the quarter. \ 3. Dower ^^ad ostium, ecclesice (or at the church door), 4. Dower " ex assensu patris" by the will of the father. 132 308 BLACKSTONE. What was the widow'' s quarantj^mf The forty days in which the widow shall remain in her hus- band's house after his death, at which -time her dower is fixed, 135. Who assigns the dower to the widow? The heir of the husband or his guardian. 135 How may dower ie barred from the widow? 1. By elopement. 2. Divorce. 3. Being an alien. 4. Treason of husband. 5. Detaining title deeds from heirs, until she returns them. 6. By aliening the land given her for dower. 136-7 7. By levying a fine or suffering a recovery of lands during coverture. 8. By jointures of deeds of conveyance, and, 9. JSTon-claimer. 137 What is a jointure? A jointure is an estate limited to both husband and wife, but may extend to a sole estate, limited to the wife only, or " a jointure is a competent livelihood of freehold for the wife^ of lands and tenements, to take effect, in profit or possession after the death of the husband, for the life of the wife at least." 137 V When must the jointure take effect? Or, give rules to he observed. 1. The jointure must take effect immediately after death of husband. 2. It mvist be for her own life, at least; not pur auter vie or for years. 3. It must be made to herself, and to no other for her. 4. It must be made in satisfaction of her whole dower, and BO expressed in the deed. 138 QUESTIONS AND ANSWERS. 309 ESTATES LESS THAN FEEEHOLD. What are the sorts of estates less than a freehold? (1) Estates for years. (2) Estates at will. (3) Estates by sufEerance. 1.39 How is dower tarred in the United States? By a joint deed of conveyance or non-claim in due time. 139 JSfote. WJiat is an estate for years ? An estate for years is a contract for the possession of lands or tenements for some determinate period. 139 When does this take place? It takes place where a man lets them to another for a term of a certain number of years agreed upon by the lessor and lessee. 139 What is a year in law? A year in law is 365 days. 139 What is done in leap years or bissextile years? The 366th day is counted in with the last day of the year. 141 W/iat is a month in law according to the common law? A month in law is a lunar month or 28 days, unless other- wise expressed. 1-41 What two hinds of months have we? A lunar month and a calendar month. 141' How many hinds of days are there in common law? A natural day of 24 hours and an artificial day from sun to sun. 141 Wha,t is the lease for '-twelve months^' and for a '■^twelfth month?'''' "Twelve months" f(>r forty-eight weeks. For a "twelfth month" one year or 365 days. 141 3i0 BLACKSTONE. Which is superior, am, estate for years or one for life? An estate for life is superior to, an estate for years, being a freehold. 143 Why cannot a, lease for life commence ^Hnfuturo"? Because an estate of freehold cannot be, created without livery of seizin or corporeal possession of the land and thi& possession can only be given when you commence to use the the land. 144 When is an estate for years vested m the tenant? "When he takes actual possession of it. 144 What privileges has a tenant for years? The same estovers as a tenant for life. 144 He cannot take emblements where the tenancy depends upon a certainty, but in an uncertainty he can. 145 What is a tenant at will? A tenant at will is where an estate in lands or tenements are let by one man to another to have and hold during the will of the lessor. 145 What rights has a tenant at will? The right of emblements if the lord ends the lease before the crops can be gathered. 146 What is an estate iy sufferance? It is an estate where one comes into possession of the lands or tenements lawfully, but keeps it afterwards without any title. 150 ^ What right has the tenant hy sufferance? ' None, except the right to get off the estate. 151 QUESTIONS AND ANSWERS. 311 LESSON VIII. Book II Chapter X, XI, and XII. Of what does the advanced lesson treat. Chapter X Estates upon Condition. 152 ' Chapter XI Estates in Possession, Kemainder and Rever- Bion. 163 Chapter XII Estates in Severalty, Joint Tenancy, Coparce- nary and Oonamfin. 173 ESTATES UPON CONDITION. What is an estate upon condition? An estate upon condition is one whose existence depends iipon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or en- larged, or finally defeated. 152 i How are conditions to he classified? They are estates implied and estates expressed. 152 What is included in estates expressed? Under estates expressed are: 1. Estates in vadio or pledge. 2. Estates by statute merchant or statute staple. 3. Estate by elegit. 152 What is an estate upon a condition implied in law ? An implied condition, is where a grant of an estate has a condition annexed to it inseparably from its essence and con- stitution, although no condition may be expressed in words^ but is tacitly understood. 152 ~What is the implied condition in creating an ofice? The law tacitly annexes a secret condition, which is implied, that he shall duly execute his office, and upon a failure to comply with this condition he may be ousted by the grantor or his heirs, and another appointed.' 152 312 BLACKSTONE. How may a public or private office he forfeited? By a mis-user or non-user both being implied conditions of an office. i ' What is the meaning of mis-user f Mis-user is where the office is abused by the judge taking a bribe, or the park-keeper killing a deer without authority. 153 What is meant by non-user? Non-user or neglect is in public offices a direct and imme- diate cause of forfeiture, but in private a,ffairs is no cause of forfeiture unless some special damage is proved to be occa- sioned thereby. 153 What 'other privilege may he forfeited by non-user and mis-user f Franchises from the King. 153 Can one create a greater estate than they them,selves are entitled to possess? They cannot, and if attempted, it is a forfeiture of their lands. 153 What is an estate on expressed conditions? An estate on expressed conditions is one where an estate is granted, either in fee simple or otherwise, with an express qualification annexed, whereby the estate granted shall com- mence, be enlarged or be defeated by the perform.ance or breach of such qualification or condition. 154 What is the difference between an expressed and implied condition? The condition in an implied grant is tacitly understood, while in an expressed grant the condition is annexed to the grant and expressly mentioned. 152-154 Will the office be defeated by non-user? A public office will be forfeited, but" not necessarily a private one, 153 How are offices forfeited in this country? By any breach of trust (pr mis-use of the office. Also, for oflEensive partisanship. QUESTIONS AND ANSWERS. 313 CONDITIONS. Upon what two conditions implied are estates granted? That they will be properly used and not neglected, or mis- used. What are the two hinds of express conditions? They are either precedent or subsequent conditions ? What are precedent conditions? Precedent conditions are such as must happen or be per- formed before the estate can vest or be enlarged. 154 What are subsequent conditions? Subsequent conditions are such as by the failure or non-per- formance of which an estate already vested may be defeated. 154. Illustrate a precedent condition. Thus, if an estate for life be limited to A upon his marriage with B, the marriage is a precedent condition and no estate will be invested in A until that happens; or if A grants to his lessee B, land for a term of years, and that upon the payment to A of $1,000 within that terra of years, he shall own the land. This is also a condition precedent and the fee simple will not pass from A to B until the $1,000 are paid. 154 Illustrate subsequent conditions. All base fees and fees simple coudFtional at common law are of this class. Thus an estate to A and his heirs tenants of the Manor of Dale, is a subsequent condition ; or if A grants an estate in fee simple, reserving to himself and heirs a certain rent, and that if such rent be ,not paid at the stated , time, he and his heirs may lawfully enter and take possession. This also is a subsequent condition. 154 When are express conditions void? The estates are wholly determined void upon the breach of any of the conditions contained in thesm. 155 What is a condition in deed? A condition in deed is a condition expressed in plain words or in legal terms of law. 155 314 BLACKSTONE. What is a condition in law, or often called a limitation f A condition in law is a condition tacitly annexed to a grant by law without any words used, as when an estate is granted to A as long as he remains parson of Dale. Here whenever he ceases to be parson of Dale his lease ends, or as soon as the contingency happens. 153 When are express conditions void? They become void if (1) At the time of their creation, they are impossible, or afterwards become impossible by the act of Grod or the act of the feoffor himself. (2) If they are contrary to law, or (3) Repugnant to the nature of the estate. 156 What effect has a void condition subsequent? If the grant has been made, the estate becomes absolutely vested in the tenant. 157 What effect is a void condition precedent? \ If the condition is precedent and void the estate is voiii. 157 What are estates in vadio? They are estates held in pledge, either living or dead. 157 What is viv'um vadium? , • A living pledge. 157 What is mortum vadium? A dead pledge or a mortgage. 157 PLEDGE OE MORTGAGE. What is a living pledge? A living pledge is where a man bprrows a sum of money, as (£2,000) of another and grants him an estate to hold as of £20, until the rents and profits shall repay the sum borrowed. This is an estate conditioned to be void as soon as the sum is raised. 157 QUESTIONS AND ANSWERS. 315 WTiat is ^ead pledge or mortgage? A mortgage is where a man )3orrows of another a specific sum, and grants him an estate in fee, on condition that if he, (the mortgager), shall pay the mortgagee the said sura on a cer- tain day mentioned in the deed, then the mortgagor shall re- enter on the estate so granted in the deed or pledge. 158 What becomes of the laridfiy this method of Common Law? Upon the non-payment of the sum, it is forever dead and gone. 169 What is the " equity of redemption "? Equity of redemption was the reasonable advantage allowed to mortgagors over the mortgagee, giving him time in which to pay the mortgage, and compelling the mortgagee to re- deliver land on payment of principal with dosts and interests. 159 What must the mortgagee do to get a perfect title? He must call upon the mortgagor to redeem his estate within a, given time, or in default of this, the mortgage is forever foreclosed, and the mortgagor is barred from redeeming the same, thus losing his equity of redemption without possi- bility of recall. 159 Who holds the legal- title in the United States? The mortgagor holds the legal title. 59, Notes 11-12 ESTATES. What are estates merchant or estates statute staple? They- are estates held till the profits thereof shall discharge a debt liquidated or ascertained, both securities for money on debts acknowledged to be due. 160 What is an estate hy elegit? An estate by elegit is the name of a writ, by which after a plaintiff has obtained judgment for his debt at law, the sheriff gives him possession of one-half of the defendant's lands and tenements, to be occupied until the debt and damages are fully paid and during the time he so holds them he is called a ten- ant by elegit. 161 316 BLACKSTONE. Classify estates with reference to time of enjoyment f Estates in PosseiSsioii and Estates in Expectancy. What are the divisions of estates in expectancy? They are the remainder and the reversion. 163 WJiat is an estate iri Possession or Estates Executed f An estate in possession is one whereby the present inter- est passes to and resides in the tenant, not depending on any other subsequent circumstance or cpntingency. 163 W?iat is an estate in ex'pectancy? An estate in expectancy is one which is not yet in possession, but the enjoyment of which is to begin at some future time; a present and vested contingent right of future enjoyment. KEMAINDERS. What is a remainder? A remainder is an estate limited to take effect and be en- joyed after another estate is terminated. 164 What is a reversion? A reversion is the residue of an estate left in the grantor, to commence in possession after some particular estate granted out by him has terminated; or returning the land to the grantor or his heirs after the grant is over. 175 When does an estate in possession exist? It exists where the owner is entitled to immediate possess- ion. 163 When does an estate in expectancy exist? It exists where the right to, possession is postponed to a future period. 163 What is a vested remainder? It is a vested remainder when there is a person in being who would have an immediate right of possession upon the ceas- ing of the preceding estate. 168 . QUESTIONS AND ANSWERS. 317 Illustrate a remainder. As where a man seized in fee simple, grants lands to A for twenty years, and after the deterniiuation of this term, then the remainder to B and his heirs forever. 164 What, are ^ and B In this case? A is tenant for years, B is tenant in fee of remainder. 164 llltistrate a remainder to three. Land granted to A for twenty years, to B for life, and after that to C and his heirs forever. Here A is tenant for years, B for life, andjC tenant in fee. 164 What do we mean iy "limited to take effect?^'' That which is left, or the remainder of the estate, as no remainder can be limited after the grant of an estate in fee simple, for this takes all of the parts. 164-165 EULES FOR CEEATING REMAINDERS. What is the first rule for creating a remainder? There must be some particular estate precedent to the estate in remainder. 165 Illustrate this rule. ' As an estate for years to A, the remainder' to B for life ; or an estate for life to A, the remainder to B in tail or to B and his heirs, etc. This precedent estate is called the particular estate, being only a small particulse of the residue or remain- der which is granted over to another. 165 What is the necessity of creating this particular estate? Because the remainder being a relative expression implies that some part has been disposed of, for where the whole is conveyed there can be no remainder left. 165 Can a freehold estate he created to commence in fiituro? It cannot, because no freehold in lands could pass without the livery of seizin, in Common Law. 166 99 31,8 BLACKSTONE. What are estates in future without a precedent estate called? They are simply called chattel interests. 165 What is the difference ietween a lease and a conveyance? A lease may commence in futuro, while a deed or convey- ance must be the immediate possession of same. 166 When one desires to grant a freehold, where the enjoy- ment is to be deferred until a future .time, what must he do? A particular previous estate must be created which will last until the period of time has elapsed at- which the freehold is ^o be enjoyed. 166 Illustrate. As when A leases to B for three years, with reniainder to in fee and makes, livery of seizin to B. Here the livery of the freehold is immediately created and vested in C during the continuance of B's term of years. The whole estate passes at once to the grantee. 166 What is the estate to all intents and purposes? An estate commencing " in presenti," to be enjoyed in the future. 166 What does the particular estate do to the remainder? It is said to support the remainder over. 166 Will a lease at will support a remainder over? It will not support the remainder over. 166 When is the remainder over void? 1. When an estate is void in its creation. 2. An estate for life upon condition, on breach of which the grantor eaters and avoids the estate. 167 What is the second rule for crea,tion of an estate? The remainder must commence or pass out of the grantor at the time of the creation of the particular estate. Illustrate. As where there is a grant to A for life with remainder to B in fee. Here B's remainder in fee passes from the grantor at the same time that seizin is delivered to A of his life estate in possession. 167 QUESTIONS AND ANSWERS. 319 What is the only way a freehold can he conveyed in expect- ancy? By liverj of seizin of the particular estate, otherwise the remainder is void. 167 Whxit is the third rule respecting creations of remainders? The remainder must vest in the grantee during the contin- uance of the particular estate that it determines. Illustrate: As where A is tenant for life, B, remainder in tail: here B's remainder is vested in him at the creation of the particular estate of A for life. 168 When A and B are tenants for their joint lives remainder to survivor, what happens? The remainder is vested in neither during their joint -lives, but at the death of one, the remainder vests in the other, and both are good remainders. 168 When is such a remainder void? "When an estate is to A for life remainder to eldest son of - B in tail, and A dies before B has heirs, it is void. 168 What is a vested remainder or a remainder executed? Yested remainders are where the estate is fixed to remain t j a certain person after the particular estate is spent. As where A is a tenant for '20 years the remainder to B in fee, here B's estate is a vested remainder. 168 What are contingent or executory remainders? They are where the estate in remainder is limited to take effect either to a dubious and uncertain person, or to a dubious and uncertain event, so that the particular estate may chance to be determined, and the remainder never take effect. 169 Illustrate: To a dubious and uncertain person as a . tenant for life, remainder to B's eldest son (unborn) ' in tail. To a dubious and uncertain event ; as where a grant is given to A for life, and if B survives him, the remainder to B in lee. Here B is cer- tain, but the remainder depends upon an Uncertain event. 169 320 BLACKSTONE. ^ Can contingent remavtider he limited upon an estate for years? Wot if it amounts to a freehold. 171 How may contingent remainders he defeated? The contingent remainders may be defeated or barred bj destroying or determining the particular estate upon which they depend, before the contingency happens whereby they become vested. As when a tenant for life surrenders his life estate before he dies, he defeats all remainders. As when the son is not yet born or in esse. 171 Under such circumstances how is the difficulty averted? Trustees are appointed to preserve the contingent remain- ders in whom there is vested an estate in a remainder for the Jife of the tenant for life, to commence when his estate deter- mines. 171 Sow may remainders he created contrary to rvles? By last will and testament or by executory devises. 172 What is an executory devise? It is such a disposition of lands by will, that no estate vesta at the death of the devisor, but only upon some future contin- gency. 172 In what three ways does it differ from a remainder? 1. It needs no particular estate to support it. 2. That by it a fee simple or other less estate may be limited after a fee simple. 3. That by it a remainder may be limited of a chattel in- terest, after a particular estate for life is created in same. 173 Illustrate these differences as when a grantor devisee la/nd to a feme sole and her heirs ufon the doAj of marriage? 1. Now" this is good, for by devise, a freehold may pass without livery of seizin or a particular grant to support it. 173 2. Where a devisor devises his whole estate in fee, but limits a remainder thereon, to commence on a future contin-. gency, as when A devises land to B g,nd his heirs, but if B die& I QUESTIONS AND ANSWERS. 321 before the age of twentj'-one, then to C and his heirs. Though void in a deed is good in a devise. But must happen within a reasonable time. 173 3. That A can grant to B for years, and afterwards to C and his heirs for life or in tail, which could not be done in a remainder. 174 What are the usual incidents to reversion? They are rent and fealty. 176 What is the meaning of the toord merger or merged? When a less estate is absorbed, sunk, or drowned by a greater, owned by the same person, it is called a merger, or is merged. What are the estates, with respect to number and connec- tions of their owners? 1. Severalty. 2. Joint Tenancy. 3. Coparcenary, and, 4. Common. 178 What is a tenant in severalty? A tenant in severalty is one who holds lands and tenements in his own right only, without any other person being con- nected or joined with him in point of interest during his estate therein. 178 ESTATES IN JOINT TENANCY. What is an estate In joint tenancy? An estate in joint tenancy is where an estate in lands or tenements are granted to two or more persons, to hold in fee, simple, fee tail, for life, for years, or at will. 180 Wliat are the incidents considered in studying these estates? ^_ 1. How created. 2. Their properties and respective incidents, and, 3. How they may be severed or destroyed. 180 Upon wJbat does the creation of a joint tenancy depend? It depends upon the wording of the deed or devise by which '^>'2'2 BLACKSTbNE. the tenant claims title, as it can only arise by purchase or grant, and never by mere act of the law. Deed or devise must include the names of all tenants by jointure. 180 ; From, what are. th-i properties of joi'^ht tenancy derived? From its unity, which is four-fold, viz: 1. Unity of Interest. 2. Unity of Title. 3. Unity of Time. 4. Unity of Possession. 180 Hovymay a joint tenancy he ereated? It cannot be created by law at all. 180 What if^ unity of interest? They must all have one and the same interest in the estate as to period of duration or quantity of interest. 180 What is unity of title? Their estate must be created by one and the same act, legal or illegal, as by one and the same grant, or by one and the same disseizin. 181 Can joint tenancy rise by desceiit, or act of law? It cannot; but by purchase or acquisition, by act of the party. 181 What is meant by unity of time? Their estates must be vested at one and the same period, as well as by one and the same title. What is unity of possession? Where each of the joint tenants have; entire possession of every parcel as well as of the whole estate. Each has an undi- vided moiety of the whole, and not the whole of an undivided moiety. 182 What is the distinguishing characteristic of joint tenancy? On the death of one tenant the right in the estate survives to the other, to the exclusion of the heirs and representatives of the deceased tenant. 183 QUESTIONS AND ANSWERS. 323 What is meant hy survivorship in joint tenancy? It is where two or mor&persons are seized of a joint tenancy for their own lives, or pur auter vie, or, are jointly possessed of any chattel interest, the entire tenancy upon decease of any one of them, remains to the survivors, and at length to the last survivor, who is entitled to the whole estate, to the exclusion of the heirs of the deceased tenants. 183 What was this right called by the ancient authors? ^ Jus accrescendi, or an increasing estate. 184 JIow may joint tenancy ie severed f By destroying any of its constituent unities, as of 1. Time, which is past and cannot be affected. 2. Possession, by disuniting their possession, destroys the jointure. 3. Title, joint tenancy is destroyed by destroying unity of title. 4. Interest, by destroying the unity of interest destroys the tenancy. 185 What happens when the jointure is severed? The right of survivorship ceases instantly. 186 When is it an advantage to dissolve jointure? Most generally, as the right of survivorship is taken away, and each tenant may transmit his part to his own heirs. 187 When is it a disadvantage? When joint tenants for life make a division, and one dies, the remaining tenant gets only his own moiety, while the rest reverts back to the reversioner. 187 ESTATES OF COPARCENAKY, What is an estate of coparcenary or parcenary? Where lands of inheritance descend to two or more per- sons. 187 How may it arise? , Either by common law or particular custom. 187 324 BLACKSTONE. IIow in common law? As when a mail dies seized of an estate, in fee simple or fee tail, and his next heirs are two or more females, either daugh- ters, sisters, cousins or aunts, in which case they shall all inherit of the estate. 187 How hy particular custom? As where in Gavel-kind lands descend to all miale heirs in equal degree, and in either of these all the parceners combined make one heir. 187 How are the properties of coparceners like joint tenants? (1) In respect of unity of interest, title and possession. (2) They may sue and be sued jointly for matters relating to their own land. (3) The entry of one of them, in some cases, is the entry for all. (4) They cannot have an action of trespass against each other. (5) They can commit waste, which joint tenants could not do. 188 How do coparceners differ from joint tenants? (1) They always claim by descent while joint tenants claim by purchase. (2) If two sisters buy land to hold to them and their heirs it is held by joint tenancy, because land of coparceners always descends by inheritance. ' (3) There is no unity of time necessary in coparcenery. (4) Coparceners may have a unity but not an entirety of interest. 188 What are the methods of partition in coparceners? (1) Agreement to divide the estate into equal parts. (2) Agreement to choose a friend to make the division; sisters choose according to age. (3) Where the eldest sister divides, she. chooses last her estate. (4) "Where the sisters agree to cast lots for their shares. QUESTIONS AND ANSWERS. 325 ' (5) By compulsion, where one or more serve out a writ to divide. (6) Where the sheriff makes the division for them. Can a daughter with a frank marriage estate get shares? ]S"ot unless she will agree to divide her estate with the rest. 187 What was hringing the land into ^'■hotch potP'' Lands in fee simple and frank mafriage should all be mixed [together and then divided equally. 190 How may the estate of coparcenery he dissolved? (1) By partition. (2) By alienation of one partner. (3) By the whole estate descending to one person, making ^t a severalty. 191 What are tenants in common? They are such as hold by several and distinct titles, and by a unity of possession. 191 When does this tenancy happen? Where there is a unity of possession merely; no other unity is necessary. 192 How may tenancy in common he created? By the destruction of the two estates either in joint tenancy or coparcenary or by special limitations in deed. 192 What are the incidents to a tenancy in common? (1) They must make partition of their lands; not so at common law. (2) ' They have distinct moieties and no entirety of interest. (3) No survivorship between tenants in common exists. 194 How may these estates in comrnqn he dissolved? (1) By uniting all the titles of interest in one person. (2) By making partition among the tenants in common. 194 326 BLACKSTONE. LESSON IX. Chapters XIII and XIV. Book II. Of what do Chapter's XIII and XI Y treat? , Chapter XIII. Of the Title to Things Real in Genekal. 195 Chapter XIV. Title by Descent. 199 TITLE TO TlilNGS REAL. What is a title? A title is the means whereby the owner of' lands has the just possession of his property. ,195 WJiat are the two methods of gaining a title? By Purchase and Descent. 201 What is the weakest title one can have, or the first stage? The most imperfect degree is mere naked possession. 195 When one ma?i has this \how may it happen? (1) It happens when one man invades the land of another and by force and surprise turns him out of possession. (2) It may happen that after the death of an ancestor and before the entry of the heir, or after the death, of a particular tenant and before the entry of a'remainder man, a stranger may contrive to get possession, which the owner may regain by legal remedies. 196 What is the next step or second best title? The next or second best title is the right of possession. 196 QUESTIONS AND ANSWERS. 3"27 What are the tivo kinds of right of possession? 1. Actual right and 2. Apparent right. 196 How may the actual right he defeated? It cannot be defeated by any opponent. 196 How may the apparent right he defeated? It may be defeated by proving a better title. 196 Illustrate the apparent right of possession? When the disseizor or other wrong-doer dies, possessed of the land obtained by his unlawful acts, and the same descends to his heirs, this possession is to them the apparent right. 197 What is the thitxl right to a title? The third right is the mere right of property without even possession or right of possession. 167 How long inay a right last without assumi?ig a right of possession? In common law thirty years. By statute twenty years. It will fail entirely unless pursued within sixty years. 199 What is the fourth and last hest title? A complete title to lands, tenements and hereditaments is established when the right of possession or actual possession is joined with the right of property. 199 DESCENT AND PURCHASE. How many methods of acquiring or losing property? Two methods, descent and purchase. 201 What is descent or hereditary succession? It is the title whereby a man on the death of his aucestoi, acquires his property or estate by right of representation as his heir at law. 201 Wlhat is an heir at laio ? An heir at law is one upon whom the law casts the inheri- tance immediately upon the death of the ancestor. 201 328 BLACKSTONE. What is an inheritance^ An inheritance is an estate descending from the ancester immediately upon his death to the heir at law. 201 What is consanquinity or kindred f Consanguinity or kindred is the coimection or relation of jiersons descended from the same stock or common ancestor. 205 What are the two kinds of consanguinity f 1. Lineal or direct and 2. Collateral or indirect. 202 What is, lineal consanguinity? Lineal consanguinity is that which exists between- persons of whom one is descended in direct line from the other, as between John Stiles, his father, his grand father, his great grandfather, etc., or his son, grandson, etc. 202 What is collateral consanguinity? Collateral consanguinity is that which exists between per- sons of the same common, ancestor but they do not descend from one another in a direct line, as where John Stiles has two sons, each of which have numerous progeny, these are descended from the same common ancestry but by different branches. 203 What is the common ancestor called? He is called the stirps, root, and stipes, trunk or common stock. 204 What is a degree of kinship? A degree of kinship is one generation as from father to son. 205. What are the two methods of computing • degrees of kin. ship? The method of the canon law and that of the civil law. 206 What was the canon law method now in use? The method in the canOn law, was to begin at the common ancestor and reckon downwards, and in whatever degree or gen- eration the two persons or the most remote of them, is dis- tant from the common ancestor, that is the degree in which they are related to each other. 206 QUESTIONS AND ANSWERS. 329 What was the ctril law method of computing degrees? The civil law counted upwards from either of the persons related to the common stock or ancestor and then they counted down again to the other, reckoning a degree for eacli person ascending and descending to the other. 206 By law when can property vest and when does one become un heir? Property will not vest and no one can become an heir until the ancestor is previously dead. 208 THE CANONS OF DESCENT. What is the first canon of descent? Inheritance shall lineally descend to the issue of the person who last died actually seized in infinitum, but shall never lineally ascend. 208 Who is the heir apparent or presumptive ? The heir apparent is he who is next in the line of succession prior to the death of the ancestor. 208 WJMt is the distinction between heir apparent and heir presumptive? 1. The heir apparent is one whose right is indefeasible, provided he outlive the ancestor, as the eldest son, or his issue. 2. The heir presumptive is one who, if the ancestor should die immediately, would in the present circumstances of things be heir of the ancestor, but whose rights of inheritance may be defeated by the contingency of some nearer heirs being born, as a brother or nephew, whose presumptive heirship may be destroyed by the birth of a child, or a daughter may be cut' off by the birth of a son. What is necessary to he a proper ancestor? Actual seizin in some way is necessary, 209 What does the lavj require as evidence of property? It requires the notoriety of possession, 209 330 I3LACKSTONE. What was the law of succession among the Jews? In case no children were born the parents, inherited. 210 What was the rule hy Roman laios? The children of lineal descendants were preferred and after this the parents succeeded with brothers and sisters. 210 What law excluded the mother? The Law of the Twelve Tables, on account of sex. 310 What is the second rwle or canon of descent? The male issue shall be admitted before females. 212 Why vjas this rule so given? Because the worthiest of blood shall be preserved. The true reason was the feudal one of military service. 213 By comino.ib laio what was the degree of hinshlp hettoeen brothers? It was the first degree by common law and the second degree by civil law. What is the third rule or canon of descent? Where there are two or more males of equal degree the eldest shall inherit; but of females all together. Illustration: Smith has two sons, Henry and George, and two daughters, Sarah and Eliza. When Smith dies, Henry, the eldest son, shall inherit to the exclusion of the other son and daughters: but if both sons die without issue then the estate goes to Sarah and Eliza equally. 214. What would such a tenancy of the sisters he called? Why? A tenancy in coparcenary, because the lands descend from the ancestor to two or more persons. 315 Why did the estate duscend to the eldest son ? To preserve the dignity and size of the estate, or keep it entire; continue military titles, and strengthen the military service. 215 Why covXd' not the estate descend to females? They could not perform the knight service or military service. 216 QUESTIONS AND ANSWERS. 331 What was this celebrated rule called? The saccession by primogeniture. 216 Does this. rule prevail In the United States? The right of primogeniture is not recognized the United States. 217, Note 8 What is the fourth canon of descent? The lineal descendants in intiitum, of any person deceased shall represent their ancestor, i. e.: shall stand in the same place as the person himself wbnld have done had he beeu living. 217. I)oes this rule hold good in the United States? Is is not universelly adopted in the United States, but in many of the states the descendants take per stripes only, when they stand in different degrees of retationship to the common ancestor. Illustration: Thus, the child, grandchild or great- grandchild, etc., of the eldest son succeeds before the yoiinger one. 217, Note 8 What shall these representatives take? Neither more nor less than the principals would have done. 217, What is such a tak'mg in representation called? It it is called succession in stirpes, according to the roots, since all the branches inherit the same share that their root whom they represent would have done. 217 What were. the two methods of succession? 1. By stirpes and 2. By per capita. 217 What is meant hy per capita? ■ Per capita is share and share alike, they being themselves next in degree to the ancestor, in their own right, and not by the right of representation. 217 Wlmt is the fifth canon or rule of descent? Upon failure of lineal descendants, or issue of the person last seized, the inheritance shall descend to his collateral relations who were of the blood of the lirst purcliaser, subject to the preceding rules. 220 332 BLACKSTONE. Who is the first purchaser? He who iirst acquires the estate tb his family, secured by any method except descent, is the first purchaser. 220 What was the trxie feudal reason for this rule? What was given to a man for his personal valor and per- sonal service, ought not to descend to any but the heirs of his person. 221 What is the great and general principle upon which ■ the collateral kinship depends? That upon failure of issue in the last proprietor, the estate shall descend to the blood of the first purchaser ; or go back to the heirs of the body of that ancestor, from whom it really has, or by a fiction of the law is supposed to have originally descended, Or, "he who would have been heir to the father of the deceased, shall be heir to the son of the deceased. 223 What is the sixth rule or canon of descent? The collateral heir of the person last seized must be his next collateral kinsman of the whole blood. 124 How does the civil law regard consanguinity ? With respect to the successions, and considers only the per- son deceased to whom relation is claimed. 224 Hoto does the canon law regard consanguinity ? With respect to descents, and respects the purchasing "ancestor from whom the estate was derived, and hence it resembles the canon law and counts its degrees in- the same manner. 224 What have the statutes done in regard to this rule? The half blood are now to succeed to the inheritance next after a relation of the whole blood in the same degree, and his issue, where the common ancestor is a male, and next after the common ancestor where such ancestor is a female- 225 QUESTIONS AND ANSWKRS. 33S What is the rule in the United States? No distinction is made in many of the states between the whole and the half blood in the statutes of descent, in others, the half blood is postponed or the share ..diminished, but in none is it cut off or excluded. 224, Note 8 ^Vhat is the seventh rule or canon of descent? In collateral inheritance the male stock shall be preferred to the female, unless where the lands have, in fact , descended from the the female. 234 - Does this rule hold good in the United States? It does not. 235, Note 10 Illustrate. Kindred on the father's side, however remote are admitted in finitum before those of the mother, however near. 235 LESSON X. Chapters XV, XYI, XVII axd XVIII. Book II. TITLE BY DESCENT AND PURCHASE. What is a title? A title is the means whereby the owners of lands and tene- ments has just possession of his property. 195 What two methods have we of acquiring a title? 1. By purchase. 2. By descent. 202 What is meant by title ly purchase? By purchase is meant the possession of lands or tenements which a man has by his own act or agreement, and not by- descent from any of his ancestors or kindred. 241 23 334 BLACKSTONE. What is title hi/ descent? Descent, or hereditary succession, is the title whereby a man at the death of an ancestor acquires his estate by right of representation as his heir at law. 201 Who is the heir at lap}? The heir at law is the one upon whom the law casts the estate immediately upon the death of the ancestor. 201 What is such an estate called? An estate so descending is called an inheritance. 201 Is land left by executory devise a purchase or descent? ■ If the land is left to the heir at law by devise or will, with other limitations, or in any other shape than the course of descents should direct, snch heir shall take by purchase. 241 Can one devise in any such way as to take hy descent? He can. If the man seized in fee devises his whole estate to his heir at law, so that the heir at law takes neither a greater nor less estate by tiie devise than he would have done without it, he shall take by descent. 241 If land, is given away, how, by law, is it obtained? The law says by "purchase, because it is one's own actor agreement to the gift and not by descent. 241 What are the two distinctions between title by descent and title by purchase.'' 1. By purchase the estate acquires a new inheritable quality, and is descendible to the owner's blood in general and not to .the blood only of some particular ancestor. 2. An estate taken by purchase will not make the heir answerable for the act of the ancestor as an estate by descent will do. 243 In what ways may a title to an estate be acquired by parchse? 1. By Escheat. 2. By Occupancy. 3. By Prescription. 4. By Forfeiture. 5. By Alienation. QUESTIONS AND ANSWERS. 335 ESCHEAT. What is escheat? Escheat denotes an obstruction of the course of descent and a consequent determination of the tenure by some unfore- seen contingency, in which case the land naturally results back to the owner of the fee by a kind of reversion to the original grantor or lord of the fee. 244 ' How does land escheat? 1. Land escheats where the tenani; dies without heirs. 2. Land escheats where the blood of the tenant is attainted. 241 ' What is necessary in order to complete a title Tjij escheat? The lord must perform an act of his own, by entering on the lands and tenements so escheated, or by sueing out a writ of escheat. 245 Upon what principle is the law of escheats founded? It is founded upon the principle that the blood of the person last seized in fee simple, is, by some means or other, utterly extinct and gone, and since none can inherit the estate but such as are > of his blood, consequently it follows that where such blood is extinct the inheritance must fail. 245 In wJiat instances will land escheat from deficiency of blood? • 1. When the tenant dies without any relations on the part of his ancestors, the land will escheat. 2. When he dies without any relations on the part of those ancestors from whom the land descended it will escheat. 3. When he dies without any relations of the whole blood ■the land will escheat. 246 ' What is a monster? A monster is anything which has not the shape of mankind, which has been brought forth in wedlock, but in any part bears a resemblance to the brute creation. It cannot in- lierit unless it has human shape. 245 336 BJLACKSTONE. What are dastards? Bastards are such children as are not born in lawful wed- lock, or within a competent time after its determination. 247 Can hastards inherits They cannot, being the sons of nobody, they have no inher- itable blood in them. 247 Is there a single instance in which the English Common Law has shown ^them any rega/rdsf Yes, in one instance, when a man has a bastard son and afterwards marries the mother, and by her has a legitimate son, and upon the death of the father, if the eldest son\ the bastard, takes possession of land and enjoys it through life, his heirs may have the inheritance cast upon them. 248 What heirs may hasta^rds have? They can have only heirs of their own body. 249 WJiat was the difference ietween the civil and common law as to iaetards? 1. The civil law allowed the bastard to be legitimate upon the subsequent marriage of the mother with the father. 2. The commpn law, while rejecting the civil and common law rnle of inheritance, did hold that after the land had thus descended to the issue of the bastard, they would not suffer his property to be retaken. 248 Can an alien talce by descent? • By the old Common Law he cannot inherit. 249 OCCUPANCY. What is occupancy? - Occupancy is the taking possession of those things which belonged to nobody at all. 257 What was the only instance in which an estate could be acquired by occupation? Where a man was tenant per auter vie, or had an estate granted to himself only (without mentioning his heirs) for the QUESTIONS AND ANSWEiRS. 337 life of another man, and died during the life of cestuy qxie vie (him by whose life it was holden); in this case he who could enter on the land might lawfully retain possession of same so long as cestuy gue vie lived, by right of occupancy. 267 V What is a special occupant? Where land is granted to a man and his heirs during the life of cestuy que 'i)ie, then the heir might and still may, enter and hold possession, and is called in law, a special occupant. 259 W/iat is the nile as to title to islands in seas or rivers? 1. When an island is in the middle of a river it belongs equally to the adjacent riparian owners. If closer to one side than the other to the owner whose bank it is nearest. 2. When a new island arrives in the sea, the Common Law of England gives it to the Crown or King. The Civil Law gives it to the first occupant. 261 What is the law of alluvium, or dereliction,? All land thus added belongs to the riparain owner, if it is gained gradually. But if it be sudden and considerable it be- longs to the Eang. 262 TITLE BY PRESCKIPTION. What is meant hy title by prescription? Prescription is where a man can show no other title to whar he claims, than that he and those under whom he claims, have immemorially held and used it. 263 What is the difference between a custom and prescription? A custom is local usage, prescription is personal. 263 In what must all prescriptions exist? 1. All prescriptions must be either in -a man and his ances- tors, or 2. In a man and those persons whose estates he has. 264 What is prescribing que estate? 338 BLACKSTONE. A prescription que estate is a prescription in a man and those persons whose estate he has. 264 'What things, may he prescribed? ■ Nothing but incorporeal hereditaments can be prescribed for, as rights of way, air, mutual support, etc. 264 Can a prescription give title to land? It cannot, as a more certain evidence may be had, as by the livery of seizin. 264 In whom must a prescription he laid? A prescription must always be laid in him that is tenant of a fee. As a tenant for life, years, at will, or copyhold cannot prescribe by reason of his weak estate. 265 Can a prescription fur a thing which cannot be raised hy grant be made? It cannot, for the law allows prescription only to supply the loss of a grant. Hence it pre-supposes a grant. 265 Gan one he prescribed for that which is to arise by matter of record? He cannot, but must claim by a grant, entered on record^ 265 What is claimed where a man prescribes que estate? Nothing but such things as are incident, appendant, or ap- parant to the lands. 266 What is claimed when he prescribes in himself and his ancestors? Anything whatsoever may be claimed that lies in a grant, not only things appurtenant to, but also things in gross. 266 Are estates gained by prescription descendible to heirs? They are not, but are an exception to the rule of descent. 266 QUESTIONS AND ANSWERS. 339 FORFEITUKE. What is forfeiture? Forfeiture is a punishment annexed by law to some illegal act, or negligence in the owner of lands, tenements, or heredit- aments, whereby he loses all his interests therein, and they go to the party injured as a recompense for the wrong which he alone, or the public with him, has sustained. 267 Sow may lands, tenaments and hereditaments heforfeited? 1. By crimes and misdemeanors. 2. By alienation contrary to law. 3. By non-presentation to a benefice, called a lapse. 4. By simony. 5. By non-performance of conditions. 6. ^y waste. 7. By breach of copyhold, and 8. By bankruptcy. 267 What are the kinds of offences which produce forfeiture to the Crown f 1. Treason. 2. Felony. 3. Misprison of Treason. 4. Froemunire. 5. Drawing weapons on a judge, or striking any one in the king's principal courts of justice. 6. Popish recusancy, or non-observance of certain laws enacted in restraint of papists. 268 How may lands and tenements heforfeited? Lands and tenements may be forfeited by alienation in con- veying them to another contrary, to law. 268 What are the divisions of alienation? 1. Alienation in mortmain. 2. Alienation to an alien. 3. Alienation to a particular tenant. 268 340 ,> BLACKSTONE. How and into what two classes are these placed? 1. In alienation in mortmain and to an alien, the forfeiture arises from incapacity of the alienee to take the estate, 2. In alienation to particular tenants, the forfeiture arises from the incapacity of the alienor to give the estate. 268 What is alienation in moHmairif Alienation in mortmain is an alienation of lands and tene- ments to afay corporation, sole, or aggregate, ecclesiastical or temporal. 268 Against whom was this statute specially directed? Against religious houses. 268-270 Wliat does mortmain mean? A dead hand. 268 What could a man do with his lands at Common Law? He could dispose of his land to whom he chose after the feudal restraints had worn away. 269 What was the statute de religiosis?. It was a statute which provided that no person, religious or whatsoever,! should buy, sell, or receive under pretense of a gift, or term of years, or any other title whatsoever, nor should by any art or ingenuity appropriate to himself any lands or tenements in mortmain, upon pain that the immediate lord of the fee, or in his default for one year, the lords paramount, and in default of all of them, the King, might enter for- feiture. 270 What originated from this series of statutes? 1. Thousand year grants and other long grantSi 2. Common Recoveries. , 3. Fiction of the Law. 4. Uses and Trusts. 270-271-272 QUESTIONS AND ANSWERS. 341 LESSON XI. Chapter XIX and XX. Book II. TITLE BY DEED. What is title? Title is the means whereby the owner of lands or tenements has just possession of his property. 195 What is tneant hy the word " mea'asf'' It is the common assurance or the several ipodes or instru- ments of conveyance established or authoriiied by the laws of England. 204 Why called " eommon " assurance? Because thereby every man's estate is assured to him. 294 What is a deed? A deed is a writing sealed and delivered by the parties. 295 Does a deed involve the transfer of lands? It does not necessarily, for money may be a deed. 296 What are the four hinds of Cormnon Assurances? (1) By matter vn pais, or deed, which is an assurance that is transacted between two or more pj-ivate persons in the country; that is (according to the old law) upon the very spot to be transferred. 294 i (2) By matter of record, or an assurance transacted only in the king's public Court of Kecord. 294 1 (3) By special custom, obtaining in somfe particular places and relating to a, particular species of property only. 294 (4) By devise contained in his last will and testament While the first, second and third take effect during life, the fourth does not take effect until after the death of the devisor. 294 342 BLACKSTONE. What is an indentured An indenture is a deed to which two or more persons are parties, and in which the persons enter into reciprocal and cor- responding grants or obligations toward each other. 295 What was the object of vndentvngf The object of indenting was to prove the genuineness of each part, by having one fit exactly in the angles of the other. 295 • What is a deed, poll? , A deed poll is one which only the party making it executes or binds himself to "it as a deed, though the grantors or grantees therein may be several in number. 296 Ai present are deeds indented? They are not, and the form serves only to give name to the species of deed executed by two or more parties as opposed to a deed poll. 207, l^ote 1 EEQUISITES.AND FOEMAL PARTS OF A DEED. What is the first requisite of a deed? There must be persons able to contract, to be contracted with, and also a thing to be contracted for, all expressed by suffi- cient names. 296 What is the second requisite of a deed? The deed must be founded upon good and sufficient consid- eration. 296 What is a good consideration? A good consideration as: Bloocl or natural love and affec- tion. 297 What is a valuable consideration? A valuable consideration as: Money, marriage, and fhe like. 297 What is the third requisite of a deed? The deed must be written or printed upon paper or parch- ment, as nothing else, or no other substance will answer. 297 QUESTIONS AND ANSWERS. 343 what is the fourth, requisite of a deed? The matter written in the deed must be legally and orderly set forth in formal parts. 297 What is the first formal pari of a deed? The premises ; which may be used to set forth the number and names of the parties with their additional titles, if any. They also contain the recital, if any, of deeds, agreements, or matters of fact, such as are necessary to explain the reasons upon which the present transaction is founded, and also in the prem- ises is set down the consideration upon which the deed is made, followed by the certainty of the grantor, grantee and the thing granted. 298 Where do the premises end? The premises ends or with the consideration of the deed. 298 What is the second formal part of a deed? This part is called the habendum, and is used properly to determine what estate or interest is granted by the deed. Though this may be performed and is sometimes performed fn the premises of the deed, in which case the habendum may lessen, enlarge, explain or qualify, but not contradict the estate granted in premises. 298 What is the tenendum? The tenendum, "and to hold," now very little lised, was formerly retained in the deed, to signify the tenure by which the estate granted was to be holden. 299 What is the reddendv/m? \ The reddendum was the reservation of some new thing by the grantor, which he kept to himself out of what he had before granted as rent or return. 299 Which of these still exist? Habendum and reddendum. 299 ■ What is the fourth forrrml part of a deed? The terms of stipulation, if any, as the thereddendum. 299 344 BLACKSTONE. What is the fifth formal part of the deedf The conditions, which is a clause of contingency on the happening of which the estate may be defeated. 300 What is the sixth formal part of the deed? The clause of warranty, whereby the grantor does, for himself and heirs, secure the estate to the grantee. 300 WAERANTY. What are the two kinds of warranty 1. Lineal warranty, and 2. Collateral warranty. 301 What is lineal warranty A lineal warranty was, where the heir derived, or might by possibility have derived, his title to the land warranted, either from or through the ancestor who made the warranty, as for example: Where the father or eldest son during the life of the father, released to the disseizor of either themselves or their grandfathers, with warranty, this was lineal to the younger son. 301 What is collateral warranty? Collateral warranty was where the heir's title to the land neither, was, nor could have been derived from the warranting ' ancestor; as where a younger brother releases to his father's disseizor with warranty, this was collateral to the elder brother. 302 What is the seventh formal part of the deed? The covenants or conventions, which are clauses of agree- ment contained in the deed, whereby either party may stip- ulate for the truth of certain facts ; or may bind himself to pei-form or give something to the other. 302 What is a covenant real? A covenant real, is where the covenantor covenants for himself and his heirs, in which case it descends upon his hsirs. QUESTIONS AND ANSWERS. 345 who are bound to perform it, provided thej have assets by descent, but not otherwise. 304 . Wlmt are the most common covenants in American con- veyances? -1. Grantor is to be well seized of premises described. 2. Grantor must have a good right and lawful authority to convey the same 3. Grantor's premises to be free from any incnmberances. 4. Grantor must protect the grantee in the quiet enjoyment of his estate; and he 5. Must give covenants of general warranty. 304, Note 6 TFAa^ is the eighth formal part of a deed? The conclusion, which mentions the execution and date of the deed, or the time of its being given or executed, either expressly or by reference to some day and year before men- tioned. 304 / What is the fifth requisite ofmahing a good deed? The reading of the deed correctly, when desired by any of the parties. If not properly read it is void unless collusion can be proved, and in such case it shall be binding upon the fraudulent party. 304 What is the sixth requisite to a deed? The signing, sealing, and delivering in presence of wit- nesses. 305 What is the seventh requisite to a good deed? It must be delivered, (until which time no title passes as lono- as grantor retains possession of deed) by the party him. self or his certain attorney. 306 ■ What is a deed in escrow? A deed in escrow is where the grantor delivers the deed to a third person to be held until certain conditions are performed on the part of the grantee. 307 What is the eighth and last requisite to a good deed? Attestation or execution of it in presence of witnesses, which is necessary for preserving evidence and not absolutely necessary for a valid deed. 307 346 BLACKSTONE. At the^present tifne who signs the deeds? The grantor only signs the deeds. 308 Is the delivery of a deed necessary to a transfer f It was in ancient times, and is at the present day, as no title passes until the deed is delivered. 307 What other formality is necessary in this country? The acknowledgement of the deed. 307, Note 9 Is the acknowledgment essential to the validity of a deed? It is not, only to the recording of it. 308 How may a deed he "avoided? If the deed wants any of the essential requisites, viz: 1. Proper parties and proper subject matter. 2. A good and sufficient consideration. 3. "Written on paper or parchment. , 4. Sufficient and legal words properly disposed of. 6. Heading, if desired, before the execution. 6. Sealing, and by statutes in most cases, signing also, and 7. Delivery, otherwise, the deed is void. It may also be avoided by matters ex post facto, as 1. By erasure, interlining or other material altering in any part, unless a memorandum of same be made at time of ex- ecution and attestation. 2. By breaking off the seal or defacing it. 3. By delivering it up to be cancelled, 4. By disagreement of such persons, whose concurrence is necessary in order to make the deed stand, as the husband where the wife is concerned, or an infant or person under duress. 6. By judgment and decree of the court of judicature. 308 Will the destruetiofh of a deed, reinstate a title to former owner? It will not do so. 309, Notes QUESTIONS AND ANSWERS. 347 CONYEYANCES. What are the various kinds of conveyances? Conveyances at Common Law and those derived from the Statute of Uses. 309 What are the two divisions of conveyances at common law? 1. Original or primary conveyances, and 2. Derivation or secondary conveyances. 309 Define each. Original or primary conveyances are snch, hy means whereof the benefit or estate is first created or arises. Deriva- tive or secondary estates or conveyances are those whereby the benefit or estate originally created is enlarged, restrained, transferred, or even extinguished. 310 What are the leading primary conveyances at common law? 1. Feoffment. ' 2. Gift. 3. Grant; 4. Lease. 5. Exchange. 6. Partition. 310 ' Whzt are the leading derivative conveyances at^ common l&io. 7. Kelease. 8. Confirmation. ' 9. Surrender. 10. Assignment. 11. Defeazance. 310 What is a deed of feoffment. A deed of feoffment is the conveyance of any corporeal hereditament in fee simple to another, by the accompanying livery of seizin. 310 348 BLACKSTONE. What is a deed of gift? A deed of gift is properly applied to the creation of an es- tate tail as a feoffment is to an estate in fee and must also pass by livery of seizin. 316 WJiat kind of a deed is used to transfer a life estate? A lease accompanied by livery of seizin. 317 What is a deed of grant? A' deed of grant or concession is the regular method at common law of transferring incorporeal hereditaments or such things where no livery of seizin can be had, and the title passes only by delivery of the deed. 317 What is a lease? A lease is properly a conveyance of lands or tenements usually in consideration of rent or other annual recompense, made for life, years, or at will, bat always for a less time than the lessor has in his premises. 317 Why' do we have enabling and restraining statutes? It was done for the purpose of governing the disposal of estates by certain unscrupulous persons, corporations, aggre- , gates, or soles, to enable one class and restrain another class. 319 What is a deed of exchange? A deed of exchange is a mutual grant of equal interests, the one for the other, and the estate exchanged must be equal in quantity, not of value, for that is immaterial, but of inter- est as a fee simple for a fee simple, and may lie either in grant or in livery of seizin. 323 What is a deed of partition? A deed of partition is where two or more joint terfants, par- ceners, or tenants in common, agree to divide the land, so held among them in severalty; each taking a distinct part of the whole. 324 Is Uvery of seizin necessary in deeds of exchange? No livery of seizin is necessary to perfect the conveyance in exchange, for each party stands in tlie place of the other and has already had corporal possession of his land. 323 QUESTIONS AND ANSWERS. 349 What is a deed of release? " • A deed of release is a discharge or conveyance of a man's rights in lands or tenements to another that has some former estate in possession. 324 In what ways may these releases enuref (1) ]ij way of enlarging an estate; as when a tenant for years gets an estate in fee by way of release. (2) By way of passing an estate ; when one of two copar- ceners releases her estate to the' other. (3) By way of passing a right; as if a man be disseized of an estate, and releases to his disseizor allhis rights. (4r) By way of extinguishment ; as if my tenant for life makes a lease to A for life, remainder to B and his heirs and I release to A. This gives remainder to B and his heirs and extingiiishes my right of reversion. (5) By way of entry and feoffment, when there are two joint disseizors and the disseized releases to one of them he is sole seized. 325 What is a confirmation? A confirmation is nearly allied to release, and is a deed of conveyance of an estate or right vn esse (in being) whereby a voidable estate is made sure and unavoidable, or whereby a par- ticular estate is increased. 325 What is a surrender? A surrender or rendering up is of a nature directly opposite to a release and is a deed of conveyance whereby a less estate falls into a greater; it is the yielding up of an estate for life or years to him that has immediate reversion or remainder wherein the particular estate may merge or drown by mutual agreement between them. 326 What is an assignment? An assignment is properly a deed of transfer, or making over to another of the right one has in any estate, but usually, applied to an estate for life or years. 326 24 350 BLACKSTONE. I How does an assignment differ from a lease? In a lease he parts with a less estate than he holds and in an assignment he parts with the whole of his estate. 327 What is a defeazancef A defeazanee is a collateral deed made at the same time as the deed of feoffment or other conveyance, containing certain conditions upon the performance of which the estate then created may be defeated and totally undone. From this way mortgages originated. 327 What is a use? 1. A use was the disposal of an inheritance to one, in confidence that he should convey it, or dispose of the profits at the will of another. Civil Law., 2. A use is a confidence reposed in another, who was ten- ant of the land, that he should dispose of the land according to the intentions of cestuy que use (he for whose use the lands are held by another) and suffer him to make the profits. 32t Who held hy legal title, and who in equity? The tenant held by legal title and possession, and cestuy que use in equity. 328 What was the statute of uses? Laws introduced by the Ecclesiastics to avoid the Statute of Mortmain in the churches. 328 What is a covenant to stand seised to uses? A covenant to stand seized to uses was a deed of conveyance by whicha man, seized of lands, covenants in consideration of blood or marriage, that he will stand seized of the same to the use of his child, wife or kinsman, for life, in tail or in fee. 338 Wliat is a deed of har^gaim, and sale? A deed of bargain and sale was a conveyance introduced by the Statute of Uses, which is a kind of real contract, whereby the bargainor for some pecuniary consideration, bargains and QUESTIONS AND ANSWERS. 351 sells, that is, contracts to convey the land to the bargainee, and becomes by such a bargain a trustee for the bargainee, and then the Statute of Uses completes the purchase. 338 What was a deed of lease and release? " A lease and release was a deed of conveyance in which a lease, or rather bargain and sale, for a pecuniary consideration, made for one year by the tenant of the freehold for and to the lessee or bargainee, and hence the bargainor stands seized to the use of the bargaiinee for one year, and the Statute of IJHes annexes possession. 339 What were two more deeds derived from Statute of Uses? 1, Deeds which lead or declare the uses of other more direct conveyances, as feoffments, lines and recoveries. 2. Deeds of revocation of uses, reserved at the raising of uses to revoke such uses as were then declared and to appoint others in their stead, which is incident to 'the power of revo- cation. 339 What class of deeds are used to charge or incumber and discharge lands? 1. Obligations or bonds. 2. Recognizances. 3. Defeazances. 248 What is a iond or oiligation? A bond or obligation is a deed whereby the obligor obliges himself, heirs, executors and administrators, to pay a certain sum of money to another at a day appointed. 340 What is a recognizance? A recognizance is a deed or an obligation of record, whereby a man entera into an agreement before some Court of Record or magistrate duly authorized, with condition to do some particular act, as to appear at the assize, pay a debt, keep the peace,. or the like. 341 What is a defeazance of a bond orrecognizamce? Is a condition which when performed, defeats or undoes it, in the same manner as the defeazance of an estate. 342 352 BI.ACKSTONE. LESSON XII. Ohaptous XXT and' XXIII. Book IL ALIENATION. Wluit is the advanced lesson to-day f Chapter XXI, Alienation by Matter of Eecord and Chapter XXIII, Alienation by Devise. 344 and 372 What are the methods of Alienation hy Matter of Record? 1. Private Acts of Parliament. 2. The King's Grants. 3. Fines and 4. Common Recoveries. 344 What was the Oommon Law rpile as to passing of titles hy act of 'parliament? The power of parliament is called in to enforce by its par- ticular laws enacted, to unfetter an estate; to give its tenants reasonable powers; or to assure it to a purchaser against the remote or latent claims of infants or disabled persons by set- tling a proper equivalent in proportion to the interests sc barred. 345 What' was the object of resorting to parliament for title? The object was to correct the many errors which had arisen from the ingenuity and blunders of lawyers ; the strictures or omissions of family settlements; to secure it against the claims of infants or other persons under legal disability which no other courts have the power to correct. 344 What or how are such acts at present carried on in parlia- ment? ) They are carried on with the greatest deliberation and cau- tion in both houses, particularly in the House of Lords, where QUESTIONS AND ANSWERS. 35S two judges are usually appointed to examine and report on the facts alleged,' aud settle all technical forms which arise, 345 What kind of a conveyance is a law thus made? A law thus made, though it binds all parties to the bill is yet looked upon rather as a private conveyance, than as the solemn act of the legislature. 346 What hind of a statute is it allowed to he? It is not allowed to be a public, but a mere private statute, and is not printed or published among the other laws Of the session, but remains enrolled among the public records. 346 Can the legislatures of the several states or the congress of the United States give a good title in America? The power of the legislature to transfer the title to private estates is very much restricted in the several states of the United States, by the universal constitutional principles that no man shall be deprived of his estate except by due process -of law, and by express provisions in some of the constitutions . in prohibiting private acts for such purposes, also from the fact that the power does not lie with the legislative depart- ment of our government. 346, Note 1 Are transfers of title ever allowable in the United States? They are in many cases, unless prohibited in express terms, as in the case of infants, lunatics and other persons unider legal disability. The legislature possesses general authority to dispose or prescribe the mode bj which their property ehall be disposed of for their benefit. 346, Note 1 WJiat is the legislature forbidden to do? It cannot assume to declare that claims which are asserted against the property of the individuals are valid, and to order the property sold to satisfy them, as this would be the exercise, not of the legislative authority, but of the judicial, which they do not possess. 346, Note 1 354 BLACKSTONE. What interest can he modified' or abolished hy the legisla- ture ? Interests in expectancy, as heir at law, tenant by courtesy, or in doWer, may be modified or altogether abolished by the acts of the legislature, but when done it must be by general laws. 346, Note 1 KING'S GRANTS. What is the second assurance hij matter of record? The King's Grant, which was a transfer of an estate made to the King himself as grantor. 346 In xohat are such ■ How do the statutes provide against these gifts or grants f They provide against them by making such deeds of gifts ide in trust for the use of the donor void; and when sucJi mts are made with intent to defraud creditors, they are de- red void, as against such persons defrauded. 441 By what is a true and proper gift always accompanied? With the delivery of possession, and it takes effect imme- itely. 441. QUESTIONS AND ANSWERS. 379 CONTRACTS. "What results if the gift does not take effect hy the delivery of immediate possession f It is then not properly a gift, but a contract. 442 What interest does a contract convey, and how is it defined f A contract usually conveys an interest merely in action, and is an agreement, given upon a sufficient consideration, to do or not to do a certain thing. 442 How are contracts classified? 1. Express. 2. Implied. 3. Executed. 4. Executory. What three points arise for contemplation in contracts? 1. The agreement. 2. The consideration. 3. The thing to be done or omitted, or the different species of contracts. 442 What are express contract agreements? They are where the terms of the agreement are openly uttered and avowed at the time of the making, as to deliver an ox, or pay a stated price for goods. 443 What is an implied contract? An implied contract is such as reason and justice dictates, and which, therefore, the law presumes that every man under- takes to perform. 443 What is an executed contract? An executed contract is one in which the rights and pos- sessions are transferred together, conveying a chose in pos- session immediately. 443 What is am executory contract? An executory contract is one in which the right only, vests, and the reciprocal property is not in possession, but in action, conveying a chose in action. 443 380 BLACKSTONE. ■ What is the difference hetween an executed and executory contvactP * An executed contract conveys a chose in possession; an executory contract a chose in action. 443 What is meant hi) a good consideration? A consideration of blood or natural affection between near relatives. 444 What is a valuable consideration? One for marriage, money, work done, or for other reciprocal contracts, which pannot be impeached by law. 444 What is meant by nudum pactum? It is a naked agreement to do or to pay anything on one side without any compensation or consideration from the other side, and is totally void in law, and a man cannot be compelled to perform it. ,445 Into what four species is a valuable consideration divided? 1. Do ut des: As when one gives money or goods on a' contract that he shall be repaid money or goods for them again. I give (you) that (you) may give (me). 445 ,2. Facio ut facias. (I do, that you may do): as where I agree with a' man to do his work for him if he will do my work for me. 445 3. Facio ut des: (I do that you may give): as when a man agrees to perform anything for a price, either specifically mentioned, or left to be determined by the law, to set a value to it, as a servant hiring to a master for certain wages. 445 4. Do ut Facias: I give (you) that you may do br make (for me): as where I agree with a servant to give him such wages upon his performing such work. 445 What is the most usual species of personal contract %? 1,. Sale or exchange. 2. Bailment. 3. Hiring and borrowing, and 4. Debt. 446 QUESTIONS AND ANSWERS. ;581 SALE OR EXCHANGE. What is a sale or exchanged A sale or exchange is the transmission of property from one man to another, in consideration of some price or recompense in value. i^iQ What distinction is made ietween a sale and an ex- change? An exchange is the commutation of goods for goods, while a sale is the transfer of good's for money. 446 What is a sale? A sale is a transmutation of property from one man to another in consideration of some price or recompense in value. 446 What is a marlcet overt in London? Every shop in which good's are exposed publicly for sale, for such things only as those in which the owner professes t& trade is a market overt. 449 What remedy lias a purchaser if a vendor sells goods and chattels as his own, and the title proves defective? He has a right of action against the vendor. 449 When must the vendor answer for the goodness of his wares purchased? He is not bound to answer unless he expressly warrants them to be solmd and good; or, unless he knew them to be otherwise, and has used any art to disguise them; or, unless they turn out to be different from what he represenj:ed to the buyer. 451 A BAILMENT. What is a bailment? A bailment is a delivery of goods in trust upon a contract,, express or implied, that the trust shall be faithfully performed by the bailee. 451 26 382 X BLACKSTONE. Who is the bailor f. The hailee? 1. The bailor is the person who delivers the goods over to be held in trust. 2. The bailee is the person to whom the goods are deliv- ered to be held in trust. 451 What is understood by an agistment? An agistment is where a person takes horses or other cattle to graze and depasture in his own grounds, upon an implied contract to return them on demand to the owner. 452 What is held where a friend delivers anything to his friend to keep for himf The receiver, as bailee, is bound to restore it on demand ; and it was formerly held, that in the meantime, he was answerable for any damage or loss it might sustain, whether by accident or otherwise; unless he expressly undertook to keep it only with the same care as his own goods, and then he should not be answerable for theft, or other accidents. But now the law seems settled that such a general bailment will not charge the bailee, with any loss, unless it happens through gross neglect, which is evidence of fraud ; but, if he undertakes specially to keep tke goods safely and securely, he is bound to take the same care of them that a prudent' man would take of his own. 452. ' What right has the bailee to protect such property ? lie may mantain an action against such persons as injure or take away these chattels. 453 What is the difference between hiring arid borrowing? Hiring is always for a price, a stipend, or additional recom- pense while borrowing is merely gratuitous. 453 What is the law in each case? The law in both cases is the same, as they are both contracts whereby the possession and transient property is transferred for some particular time or use, on condition to restore the goods so hired or borrowed, as soon as the time has expired, or the use is QUESTIONS AND ANSWERS. 383 performed, together with the price or stipend (in case of hiring), either expressly agreed on by the parties, or left to be implied by law according to the value of the service. 453 What is interest and upon what is its doctrine hased? Interest is where money is lent on a contract, to receive not only the principal sum again, but also an increase by way of compensation. It is founded upon the acknowledged principle, that commerce cannot exist without extensive credit. 455 When the hazard of lending money is greater than the rate of interest allowed by lawwill compensate, to what prac- tice does it give rhe? This gives rise to the practice of (1) Bottomry or respondentia. (2) Policies of insurance. (3) Annuities upon lives. 456 What is Bottomry? Bottomry is in the nature of a mortgage of 'a ship, whereby the owner or master raises money to enable him to carry on his voyage, and pledges the keel or bottom of his ship as secur- ity. 458 What i^ understood in the case of such an agreement? If the ship is lost, the lender loses all money lent; but if it returns in safety, then he shall receive back his principal and also the premium of interest agreed upon, however it may ex- ceed the legaV rate of interest. 457 Why is this contract allowed to he valid? It is allowed to be valid in all trading nations, for the bene- fit of commerce and by reason of the extraordinary hazard run by the lender. 458 What is understood iy respondentia? It is where the loan is not upon the vessel, but the goods . and merchandise in it, which must be sold or exchanged in the course of the voyage. Here only the borrower personally is bound to answer the contract, and is therefore' said to take up. money at respondentia. 458 ■3^4 BLACKSTONE, What is a policy of insurance? A policy of insurance is a contract between A and B, that upon A's paying a premium equi^ralent to the hazard run, B will indemnify or insure him against a particular event. 458 What is a debt? A debt is a contract whereby a defcrminate sum of money becomes due to any person and is not paid, but remains in action merely. 464 Into what classes is debt usually divided? (1) Into debt of record. (2) Debts by special contract and (3) Debts by simple contract. What is a debt of record? A debt of record is a sum of money which appears to be due by the evidence of a Court of Kecord. 465 What is a debt by special contract? A debt by special contract is such whereby a sum of money becomes due, or is acknovvieuged to be due, by deed or instru- ment under seal. 465 What is a debt by simple contract? , Debts by simple contract are such, where the contract upOn which the obligation arises is neither ascertained by matter of record, nor by deed or special instrument, but by mere oral evidence, the most simple of any; or by notes unsealed, which are capable of a more easy proof, and therefore better than a verbal promise. 466 What is known as paper credit? Paper credit consists of simple contract debts, by bills of exchange, promissory notes, etc. 466 What is a bill of exchange or draft? (a) A bill of exchange or draft is a security, originally invented among merchant in different countries, for the more easy remittance of money from the one to the other, which has since spread itself into almost all J)ecuniary transactions. 466 QUESTIONS AND ANSWERS. 385 (b) It is an open letter of request from one person to another, desiring him to pay a sum therein named to a third person. 466 What are the Mnds of Mils of exchange? 1. Foreign, when drawn by a merchant residing abroad, upon his correspondent in America or vice versa. 2. Inland, when both drawer and drawee reside in the same country. 467 What is the difference ifv law hetween them? Formerly, foreign bills of , exchange were much more re- garded in the eye of the law, than inland ones, as being thought of more public concern -in the advancement of trade and com- merce; but by statute they are both put on the same footing. 467 , What are promissory notes? Promissory note, or notes of hand, are a plain and direct engagement in writing, to pay a sum specified at the time therein limited, and to a person therein named, or sometimes to his order or to bearer at large. 467 Why is itunusual inhills of exchange or promissory notes to express that the value thereof has heen received hy the drawer? This is done to show the consideration upon which the im- plied contract of repayment arises. 468 What may he done with these bills and notes? They may be transferred and assigned from the payee to any other man, contrary to the general rule of the common law, that no chose in action is assignable, which assignment is the life of paper credit. 468 When will a hill of exchange be protested for non accept- ance and when for non-payment? If the drawee refuse to accept the bill, and it be of the value of £20 or upwards, and expressed to be for value receive^; the payee or indorsee may protest it for non-acceptance. But in case such a bill be accepted by the drawee, and after accept- ance he fails or refuses to pay it within three days (called days 386 BLACKSTONE. of grace) after it becomes due, the payee or indorsee is then entitled to get it protested for non-payment in the same man- ner, and by the same persons who are to protest it in ease of non- acceptance. 469 Upon whom may an indorsee call to discharge a bill or note if he cannot get the drawer to discharge it? He may call upon either the drawer or the indorser, or if there has been more than one indorser upon any of them. 470 , ' When there are a number of indorsees what rnay each do? If the names are prior to his own, each may at liberty call nipon any of them to make him satisfaction, except the first indorser, who has no one to resort to but the drawer only. 470 LESSON XV. Chaptee XXXI AND XXXII. Book II. \ ' ; - BANKEUBTCY. , WJMt points are considered in the law of bankruptcy? 1. "Who may become a bankrupt. 2. What acts make a bankrupt. 3. The proceedings on a commission of bankrupt, and 4. ' In what manner an estate in goods and chattels may be transferred by bankruptcy. 471 What is a bankrupt?, A bankrupt is a trader, who secrets himself, or does certain ■other, acts, tending to defraud his creditors. 471 QUESTIONS AND ANSWERS. 387 What is title by bankruptcy f Title by bankruptcy is that method, by which a right is ac- quired to the property of a bankrupt. 285 What privileges do the laws of bankruptcy confer upon the creditors and debtors? 1 It confers privileges on the creditors, by compelling the bankrupt to give up all his effects to their use, without any concealment. 2. Upon the debtor, by exempting him from the rigor of the general law, whereby his person might be confined at the discretion of the creditor, though in reality he has nothing to satisfy the debt. 472 'What is an act of insolvency? It is an act whereby all persons, who are either in too low a way of dealing to become bankrupt, or not being in a mercan- tile state of life are not included within the laws of bank- ruptcy, are discharged from- all suits or imprisonments, upon delivery of all their estates and effects to their creditors upon oath, at the sessions or assizes. Wloat is meant by the saying " once a bankrupt, always a bankrupt?'''' It means that a plain and direct act of bankrupcy once committed, jcannot be purged and explained away by any sub- sequent conduct, as a dubious equivocal act may be; blit that if a commission is afterwards awarded, the commission and the property of the assignee shall have a relation or reference back to the first and original act of bankruptcy. 486 What is the duty of the assignees towards their creditors? The assignees may pursue any legal method of receiving this property so vested in them, by their own authority; but cannot commence a suit in equity, nor compound any debts ©wing to the bankrupt, nor refer any matter to arbitration, without the consent of the creditors, or the major part of them in value, at a meeting to be held in pursuance of notice in the gazette. 487 388 BLACKSTONE, What debts of a bankrupt have a priority to be paid,' and what shall not be postponed or set asi^ef Judgments and recognizances, whicli hare a priority, ■ also bonds and obligations by deed or special instrument, are all put on a level with debts by mere simple contract, and are all paid pari passu (without preference). 4:87 What are assets? They are whatever goods and chattels of a bankrupt that may be converted into money. 488 TITLE BY TESTAMENTS' ANJD ADMINISTRATION. iWhat points are investigated in the study 'of title by testament and administration? 1. Originality and antiquity of titles of testament and ad- ministration. 2. "Who is capable of making a last will and testament. 3. Nature and incidents of a testament. 4. What executors and administrators are, and how ap- pointed, and 5. Offices and duties of executors and administrators. 489 What is title by testament? Title by testament is the method of acquiring personal property according to the express directions of the deceased proprietor. 490 What is title by administration? Title by administration is the method of acquiring personal property according to the .will of the deceased proprietor, which is not expressed, but presumed by law, which answers to the descent or inheritance of real estates. 490 What were the reasonable parts into which- a inan^s goods were to be divided? His goods were to be divided into three equal parts. QUESTIONS AND ANSWERS. 389 1. One part went to his heirs or lineal descendants. 2. Another to his wife, and 3. A third was at his own disposal. 492 What are the shares of the wife and children called? Thej are called their reasonable parts, and if he died with- out wife or issue the whole was at his disposal. 492 When is a man said to die intestate? In case a person made no disposition of his goods, such as were testable, whether that were only a part or whole of them, he was, and is, said to die intestate. 494 Who is the intestate adndnistrator? He whom the ordinary shall depute as the nearest and most lawful friend of the deceased to administer his goods is the intestate administrator. 496 Who may hy law make a will? ^ Kegularly, qvqtj person has full power and liberty to make a will, that is not under some special prohibition bj law or custom. 497 Upon what accounts do these prohibitions exist? 1. For want of sufficient discretion. 2. For want of sufficient liberty and freedom. 3. On account of their criminal conduct. 497 To whom does the first case apply? 1. Infants under the age of fourteen years if males, and twelve if females. 2. Madmen, or otherwise non compos mentis. 3. Idiots, or natural-born fools. 4. Persons grown childish by old age or distemper. 5. Persons born deaf, blind or dumb. 497 To whom does the second case apply? 1 Prisoners, captives, etc., by civil law. 2. Feme coverts. 497 390 BLACKSTONE. In what cases may a feme co'jert make a testament of chat- tels? Axiijfeme covert may make her will of goods, which are in her possession in auter droit (in another's right) as executrix and administratrix, and by her husband's license, she may make a testament of any of her chattels. 498 To whom does the thi/rd class apply? 1. All traitors and felons, from the time of conviction. 2. Outlaws, even if it be for debt, as long as outlawry lasts. 499 Into what classes are testaments divided? 1. Into written, and 2. Into verbal, or non cupative. Of which the former is committed to writing, while the lat- ter depends merely upon oral evidence, being declared by the testator in extremis before a sufficient number of witnesses, and afterwards reduced to writing. 500 ' What is a codicil? Codicil, meaning a little book, or writing, is a supplement to a will, or an addition made by the testator, and annexed to, and to be taken as part of, a testament, being for its explana- tion, or alteration, or to make some addition to, or else some subtraction from, the former dispositions of the testator, which may also be either written or verbal. 500 When does a testament hecome operative? No testament is of any efEect until after the death of the tes- tator. 502 What is the rule lohen there are testaments of different dates? If there be many testaments, the last overthrows the for- mer; but the republication of a former will, revokes one of a later date, and establishes the first again. 602 QUESTIONS AND ANSWERS. 391 In what three ways may testaments he avoided? 1. If made by a person laboring under any of the incapa- cities before mentioned. 2. By making another testament of a later 'date. \ 3. Bycancelling or revoking it. 502 Whai is the rule where a 'nan, having inade a will, then marries and has children? This is a presumptive or implied revocation of the will made during celibacy. 502 What is an executor and who may he one? An executor is he to whom another man commits by will the execution of his last will and testament. All persons are capable of being executors that are capable of making wills and many others besides, as fone coverts, infants and even infants unborn. 503 What is necessarg to the mxihing of every will? The appointment of an executor, either by express words, or such as strongly imply the same. 503 Who is the executor de son tort? An executor de son tort, is one who acts as executor with- out just authority; and who is held liable to all the trouble of an executorship without any of the profits or advantages. 507 Who is an administrator? He is an executor appointed by law, i. e. he is appointed by the courts to administer upon the goods and effects of the person dying intestate. 604 ' ^ What is an administrator de honis non? It is where the course of representation or administration, being interrupted, it is necessary to commit administration afresh of the goods of the deceased, not administered by the former executor or administrator. 506 392 BLACKSTONE. What is the difference hetween ^ the o'ffioes aiid duties of exeeutoi's and administrators f They are in general very much the same in both executors and administrators, excepting lirst, that the executor is bound to perform a will, which an administrator is not, unless where a, testament is annexed to his administration, and secondly that an executor can p'ferform many acts before he proves the will, but the former may do nothing until letters of adminis- tration are issued. 507 What are the powers and duties of a rightful executor or administrator f 1. He must bury the deceased in a manner suitable to the estate which he leaves behind him. 2. The executor or administrator must prove the will. 3. He must make an inventory of all goods and chattels of deceased whether in possession or in action. 4. He must collect all goods and chattels so inventoried. 6. He m\ist pay the debts of the deceased. 6. "When debts are paid legacies must next be discharged. 7. After debts and legacies are discharged, the surplus or residuum goes to the residuary legatee. 508-515 1)1 what ways may a will he proven? 1. By common form, which is upon his (executor's) own oath before the ordinary or surrogate, or 2. Per testis, in more solemn form of law, in case the val- tidity of the will is disputed. 508 What is styled the prohate? "When a will is so proved, the original must be deposited in the registry of the ordinary, and a copy thereof in parchment is made out under the seal of the ordinary, and delivered to the executor or administrator, together with a certificate of its having been proved before him, all of which together is styled a probate. 508 QUESTIONS AND ANSWERS. 393 What is a legacy? A legacy is a bequest, or gift of goods and chattels by a will or testament, to a person styled the legatee. 512 Who may be legatee or receiver of legacies ? Any person not disabled by the. Common Law or statute, as traitors, papists, et al. 512 How is a legacy perfected? The bequest transfers an inchoate property to tlie legatee, but it is not perfect without the assent of the executor, for in him all chattels are vested. 612 What is an executor'' s first duty? Ills first duty is to see whether there is a sufiScient fund to pa}' the debts of the testator left ; the rule of equity being that '• a man must first be just before he is generous." 512 What are the hinds of legacies? 1. Contingent legacy, when it depends upon the happening of an uncertain event, where it is left to one, as when he attains, or if he attains the age of 21 years. 513 2. A vested legacy is when the sum \% to be paid when he attains the age of 21 years, and if the legatee dies before that time it goes to his representatives, when it falls due. 513 What is a lost or a lapsed legacy? If the legatee dies before the testator himself, the legacy is . then a lost or lapsed legacy, and sinks into the residuum fund. 613 What is a causa mortis? It is that disposition of property which a man is permitted to make upon his death bed, being in his last sickness and apprehending that dissolution is near at hand, he can thus dispose of his effects. 514 What becomes of this property so disposed of causa mortis? If the donor dies it needs no assent of the executor; yet it shall not prevail against creditors; while if the donor lives it shall revert to himself, being only given in contemplation of| death, or causa mortis. 614 394 BLACKSTONE. What is a residuum P It is that sum left over after the payment of all debts and legacies. 514 ^ What is done with this residuum? It is paid to the residuary legatee, if any, if not, it goes to executor by virtue of his executorship. 514 LESSON XVI. BOOK III. Chaptees I, II, III, IV, YII, XIV. PUBLIC AND PRIVATE WEONGS. \ What is municipal law? Municipal law is a rule of civil conduct, prescribed by the supreme power of the state, commanding what is right and prohibiting what is wrong. Intro § 2; Book III. 1 What are the primary objects of the law? 1. Establishment rigkts, and 2. Prohibition wrongs. 1 Into what species are wrongs divisible? Into private wrongs and public wrongs. 2 What are private wrongs as distinguished from public wrongs? Private wrongs are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals; frequently termed civil injuries; while public wrongs are a breach and violation of public rights and duties, which afEect the whole comniunity, considered as a community; distinguished as crimes and misdemeanors. 2 QUESTIONS AND ANSWERS, 395 How is the redress of private wrongs accomplished? Courts of justice are instituted in every civilized society, in order to protect the weak from the insults of the stronger, by expounding and enforcing those laws by which rights are defined and wrongs prohibited. 2 How is this thorough remedy to he sought? Principally by application to these courts of justice, i. e., by a civil suit or action. 3 Into what three species . is the redress of private wrongs distributed? 1. That which is obtained by the mere act of the parties themselves. 2. That which is effected by the mere act and operation of law. 3. That which arises from suit or action in courts, which consists in a conjunction of the other two; ,or the act of the parties co-operating with the act of the law. 3 Of wliat two sorts is that redress of private injuries? 1. That which arises from the act of the injured party only. 2. That which arises from the joint act of all the parties together. 3 ' Can a mnn defend himself or family without being liable? He can, as the breach of peace which happens is charge- able to him who began the affray. 8- What is the primary law of nature and what is said of it? " Self preservation is the first law of nature," even unto homicide itself; but care must be taken that the resist- ance does not exceed the bounds of mere defence and preven- tion, for, then the defender would himself become the aggressor. , 4 What is understood by recaption or reprisal? This happens when one man has deprived another of his property in goods or chattels personal, or wrongfully detains 396 BLACKSTONE. one's wife, child or servant; in which case the owner of the goods, and husband, parent and master, may lawfully reclaim and take them, wherever he can find them. 4 What is entry F Entry is the remedy given the owner of real property and corresponding to recaptioti of personal property, by which an owner may enter and retake possession of his lawful lands. 5 What is a nuisance? Whatever annoys or does damage to another person is a nuisance, and may be removed by the party agrieved thereby if no riot is committed in doing it. 5 What is a distress? A distress is the taking of personal chattels out of the posses- sion of the wrong-doer into the custody of the party injured; to procure a satisfaction for the wrong committed. 6 What is the most usual injury for which distress may arise? For the non-payment of rent. 6 What things may be taken by distress? AH chattels personal are liable to be distrained, unless particularly protected or exempted. 7 What is cattle damage- feasant? Where the beasts of a stranger wander into a man's grounds, doing him hurt or damage by treading down the grass or the like, is called damage feasant. 7 How must a distress be disposed of? The beasts must first be carried to a pound and there im- pounded by the taker; for if once imj)ounded they are then in the custody of the law. 12 What is a pound? A pound is an enclosure, either open or closed overhead, where distressed goods are held in legal custody. 12 What is meant iy replevy or replegiare? Keplegiare (i. e., to take back the pledge) is when a person distrained upon, applies to the sheriff or his officers, and has the QUESTIONS AND ANSWERS. 397 distress returned into his own possession, upon giving good security to pay the right of taking it, in a suit at law, and if that go against him, to return the goods once more into the hands of the distrainor. 13 What remedies arise from the joint act of all. the parties? 1. Accord and 2. Arbitration. 15 What is accord? Accord is a satisfaction agreed upon between the party injuring and the party injured, which, when performed, is a bar to all actions upon this account. 16 What is arbitration? Arbitration is where the parties injuring and injured submit all matters in dispute, concerning any personal chattels or personal wrong, to the judgment of two or more arbitrators, who are to decide the controversy. 16 What is afi award? An award is the decision arrived at by the arbitrator, arbi- trators, or umpire, to whom the question was submitted. 16 Can the right of real property pass iy award? It cannot, for had this been allowed, the land in feudal times might have been aliened coUusively without consent of the superior. 16 What may an arbitrator do in this regard now? He may now award % conveyance or release of land, and it will be a breach of the arbitration bond to refuse compliance. 16 Wliat are the species of that redress of private wrongs, effected hy mere operation of law? 1. That of retainer, when a creditor is made executor or administrator to his debtor; and 2. What the law calls a remitter. 18 Why is a creditor, wheri) an executor or administrator, allowed to retain his own debt? Because an executor cannot, without an apparent absurdity, 398 ' BLACKSTONE. « commence a suit against himself, as a representative of the deceased, to recover that which is due him in his own private capacity. 18 What is a remitter? , A remitter is where he who has the true property in lands, but is out of possession thereof, and has no right to enter without recovering possession in an action, has afterwards the free hold cast upon him, by some subsequent, and of course, defective title; in which case he is remitted, or sent back, by operation of law to his ancient aiid more certain title. 19 Wherein do the act of parties and the act^ of the law co- operate to redress civil injuries? By suits in- court, where the act of the parties sets the law in motion, whose process is the only means of procuring cer- tain and adequate redress. 2^, What is the general and indisputable rule of the law, where there is a legal right? Where there is a legal right there is always a legal remedy, by a suit or action at law whenever that right is invaded. 23 COURTS AND ATTORNEYS. What is a court? A court is a place where justice is judicially administered. 23 From what source are all courts derived? All courts of justice are derived from the power of the crown. How are courts created? The only ways in which courts may come into existence, are: 1. By act of parliament; 2. By letters patent, or 3. By subsisting by prescription. 24 QUESTIONS AND ANSWERS. 399 Who is supposed, in contemplation, of law, to he present in every court? The King, but as that would be impossible, he is represented by his judges, whose power is only an emanation of the royal prerogative. 24 What are the two most important divisions oj^ courts? 1. Courts of flecord, and 2. Courts not of Record. 24 W/iat is a Court of Recurd? A court of record is one where the acts and judicial pro- ceedings are enrolled on parchment, for a perpetual memo- rial and testimony; which rolls are called the records of the' court, and are of such high and super-eminent authority, that their truth cannot be called into question. 24 How are courts of record distinguished? They are the only courts that have the power to fine and. imprison. 25 What is a court not of record? A court not of record is the court of a private man, whom, the law will not entrust with any discretionary power; viz: courts baron, etc. 25 What three constituent parts must there le in every court? 1. The plaintiff, or actor. 2. The reus, or defendant. 3. The judix or judicial power which is called upon to examine into the truth of the fact, deterjnine the law, and apply the remedy. 25 What is an attorney at law? He is one who is put in the place, stead, or turn of another to manage his affairs at law. 25 Who are clients? They are suitors ; either pl^iintiffs or defendants. 25 What are the two species of advocates? 1. Barristers, and 2. Sergeants. 26 400 , BLACKSTONE. What is a suit or action? It is the lawful demand of one's right. An ordinary pro- ceeding in a court of justice, by which a party prosecutes an- other party for the enforcement or protection of a right; the redress or prevention of a wrong, or the punishment of a pub- lic offense. 116 Of what two kinds are courts, with regard to their several species? 1. Such as are of public and general jurisdiction, through- out the realm, and 2. Special and private jurisdiction in certain parts of the realm. 30 What are the' four sorts of puilio courts of justice? 1. The universally established courts of common law. 2. The ecclesiastical courts. 3. The courts military, and 4. Courts maritime. 30 What are the ten, public courts of Gommork Law and Equity? 1. Piepoudre. 2. Court Baron. . 3. Hundred Court. 4. County Court. 5. Court of Common Pleas. 6. Court of King's Bench. 7. Court of Exchequer. 8. Court of Chancery. 9. Court of Exchequer Chamber, and 10. House of Peers. 32-56 What is a Piepoudre Court? It is a court of record incident to every fair or market, where tie act complained of must be done, tried, and decided, during the existence of that fair or market, and not a preceding one. -33 What is a Court Baron? It is a court incident to every manor of the kingdom, to be holden by the steward within said inanor. 33 QUESTIONS AND ANSWERS. 401 What is a County Uourtf It is a court incident to the jarisdiction of the sheriff. 35 What is a Hundred Court? A hundred court is only a larger court baron, being held for all the inhabitants of a particular hundred instead of a manor. 34 What is a Court of Common Pleas? A Court of Common Pleas is for the trial of all matters of law arising in civil cases, whether real, personal or mixed, and compounded of both. 40 How are pleas regula/rVy divided? Into 1. Pleas of the Crown, comprehending all suits for crimes and misdemeanors, wherein the king (on behalf of the pub- lic) is the plaintiff, and 2. Common Pleas, which include all civil actions, depend- ing between subject and subject. 40 What is the Court of Kin^s Bench? It is the supreme court of the common law in the king- dom, so called because the King used to formerly sit there in person. 40 What is the Court of Exchequer? ' It is a court of inferior rank to that of the King' Bench, or Common Pleas, and is intended principally to order the reve- nues, and collect the debts and duties of the crown. 44 What is the Court of Chancery? The Court of Chancery is the court which deals in matters of civil property, and by much the most important of any of the king's superior and original courts of justice; 'and takes- its name from the judge who presides over it ; the Lord Chan- cellor. 46 > W?vat is the Cou/rt of Exchequer Chamber? The Court of Exchequer Chamber is only a court of appeal to correct the errors of other jusisdictions. 65 402 BLACKSTONE. What is the House of Beers? It is the Supreme Court of Judicature in the kingdom, but has no original jurisdiction over causes, but only upon appeal and writs of error, to rectify any injustice or mistake of the law committed by the courts below. 56 What are courts of assize and nisi priusf They are courts which are composed of two or more com- missioners who twice in every year, are sent by the King's special commission, all around the kingdom, to try by 'a jury of the respective counties, the truth of such matters of fact as are then under dispute in the courts of Westminster Hall. 58 Which of the cowrts named are courts of record, and which are not cotvrts of record? 1. Courts of record, as (a) Piepoudre. (b) Common Pleas. (c) King's Bench. (d) Exchequer. (e) Chancery. (f) Exchequer Chambers. (g) House of Peers. (h) Assize and JS^isi Pri us 2. Courts not of record: (a) Court Baron. (b) Hundred Court. (c) County Court. 33-56 What is the difference between an appeal from a court of equity and a writ of error from a court of law? 1. An appeal from a court of equity may be brought upon any interlocutory matter; while a writ of error from a €ourt of law can be brought upon nothing but a definite judg- ment. 55 2. On writs of error the House of Lords pronounces judgment; on appeals, it directs the court below to rectify its own decree. 55 QUESTIONS AND ANSWERS. 403 What is t?ie order in which the inquiry of the cognisance of private wrongs is pursued? 1. What actions may be brought or what injui'ies rem- edied in Ecclesiastical courts. 2. "What in the Military. 3. What in the Maritime, and 4. What in the courts of Common Law. 86 Of what three classes are wrongs or injuries cognisable in the ^Ecclesiastical Courts f 1. Pecuniary causes. 2. Matrimonial causes, and 3. Testataentary causes. What are pecv/niary causes? Pecuniary causes are such as arise, either from the witholding of ecclesiastical dues, or doing or neglecting some act relating to the church, whereby some damage accrues to the plaintiff. 88 What are the principal pecuniary causes? 1. Subtraction or witholding of tithes. 2. Non-payment of ecclesiastical dues. 3. Spoliation. 4. Dilapidation, and 5. Non repairs of the churph, etc. 90^91 What are the principal matrimonial causes? 1. Causa jaatitationis matrimonii, or when one boasts or gives out that he is married to another, whereby a, common reputation of their matrimony may ensue. 93 2. Breach of promise to marry. 3. destitution for conjugal rights. 4. Divorces. h. Suits for alimony. 94 What a/re the testamentary causes? 1. Disputing the validity of wills. 2. Obstructing" the testimony of administration. 3. Subtraction of legacies. 48 404 BLACKSTONE. What is spoliation? Spoliation is an injury don« by one clerk or incumbent, to another, in taking the fruits of his benefice without any right but under a pretended title. 91 According to the practice of what laws are the proceedinga in Ecclesiastical Cov/rts regulated? They are regulated according to the practice of the Civil and Common Laws, corrected and new modeled "by their own par- ticular usages, and the interposition of the Common Law. 100 What jyrocess have the Ecclesiastical Cov/rts of enforcing these sentences? The process of excommunication, which is two fold, the lesser and the greater excommunication. The former excluding the party from participation in the sacraments and the latter exdudes him from the! society of the Christians entirely. 101 . What is the jurisdiction of the Court Military, or Court of Chi/oalry, as gi/ven by statute, IS Rich. II., C. 2? " It has cognizance of ■ contracts touching deeds of arms or of war, out of the realm, and also things which touch war within the realm, which cannot be determined or discussed by the common law; together with other wages and customs to the same matters appertaining." 103 What injv/ries are cognizable in Maritime cowrts? These courts have jurisdiction and power to try and deter- mine all maritime causes; or such injuries, which, though they. are in the nature of common law cognizance, yet being committed on the high seas, out of the reiach of ordinary courts of justice, are therefore to be remedied in a peculiar court of their own. 106 What injuries are cognizable in Common Law courts? All possible injuries whatsoever, that do not fall within the exclusive cognizance of either the ecclesiastical, military or maritime tribunals. 109 Wliat is a writ of procedendo or mandamus? A writ of mandamus is a command issuing in the King's QUESTIONS AND ANSWERS. 405 name, from the Court of King's Bench, and directed to any person, corporation or inferior court of judicature within the King's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the Court of King's Bench has previously determined, or at least suffers to be consonant with right and justice. 110 What is a writ of prohibition? It is a writ issuing out of the Court of King's Bench, being the Kings' prerogative writ, but for the furtherance of justice, it may also be had in some cases out of the Court of Chancery, Common Pleas, or Exchequer, directed to the judge and par- ties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some collateral matter arising therein, • does not belong to that jurisdiction, but to the cognizance of some other court. 11^ What is waste, and ofvjhat two hinds is it? Waste is a spoil and destruction of the estate, either in houses, woods or lands, by demolishing not the temporary profits only, but the very substance of the thing itself. 223 What two kinds of waste are hnown to the law? 1. Yoluntary, or an actual and designed demolition of lands, woods and houses; or 2. Permissive, arising from mere negligence, and want of sufficient care in the reparation of houses, and fences, etc. 223 What persons are injured hy waste? The persons who may be injured by waste are such as have some interest in the estate wasted. 224 WM't redress may persons have for this injury of waste? 1. Preventative, or by writ of estrepement ; and 2. Corrective, or by a writ of waste. What is a writ of estrepement? A writ of estrepement lay at Common Law, after judgment obtained in any action real, and before possession was deliv- 406 BLACKSTONE. ered ty the sheriff, to stop any waste which the vanquished party might be tempted to commit in lands which were no longer his. 225 What is a writ of waste? A writ of waste is also an action, partly founded upon the Common Law and partly upon the Statute of Gloucester, and may be brought before him who has the immediate estate of inheritance in reversion or remainder, against the tenant for life, years, dower or curtesy. 227 What kind of an action is an action for waste? A mixed action, partly real so far as it recovers land; and pereonal so far as it recovers damages. 227 FINIS. J. KP 801 Z9 W22 Author Walsh, Charles Clinton Vol. Title The Student's quiz book Copy Date Borrower's Name -