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 ^''^n.f,!!',teVf,,.9!Ji.t!e..tp. Smith on contract 
 
 3 1924 022 224 137 
 
The original of tliis 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/cu31924022224137 
 
THE STUDENT'S GUIDE 
 
 SMITH ON CONTRACTS. 
 
 A COMPLETE SEKIES 
 
 QUESTIONS AND ANSWERS THEREON. 
 
 H. WAKEHAM PUEKIS, Esq., 
 
 AUTHOK OF "the STUDENT'S GUIDE TO WILLIAMS ON REAL PROPERTY," "THE 
 student's guide to WILlftAMS ON PERSONAL PROPERTY." 
 
 PHILADELPHIA . 
 T. & J. W. JOHNSON & CO., 
 
 LAW BOOKSELLERS AND PUBLISHERS, 
 
 No. 535 CHESTNUT STREET. 
 
 1882. 
 
TABLE OF CONTENTS. 
 
 LECTURE I. 
 
 On the nature and classification of Contracts, and on Con- 
 tracts by Deed, 1 
 
 LECTURE n. 
 
 The nature of Simple Contracts — Of Written Contracts — the 
 
 Statute of Frauds, ........ 8 
 
 LECTURE in. 
 
 The Fourth Section of the Statute of Frauds — Promises by- 
 Executors and Administrators — Guarantees — Marriage 
 Contracts — Contracts for the Sale of Land — Agreements 
 not to be performed within a Year, 19 
 
 LECTURE IV. 
 
 Sale of Goods, &c., under the Seventeenth Section of the Stat- 
 ute of Frauds — Consideration of Contracts by Deed and 
 of Simple Contracts, 26 
 
 LECTURE V. 
 
 Consideration of Simple Contracts — Executed Considerations — 
 Where express Requests and Promises are of avail — Moral 
 Considerations — Illegal Contracts — Restraints of Trade, . 35 
 
IV CONTENTS. 
 
 LECTURE TI. 
 
 FAaE 
 
 Illegal Contracts — Fraud — Gaming on Horse-racing — Wagers, 45 
 
 LECTURE VII. 
 
 The Lord's Day Act — Simony— Bills of Exchange for Illegal 
 Consideration — Recovery of Money paid on Illegal Con- 
 tracts, 53 
 
 y LECTURE Vlir. 
 
 Parties to Contracts — Who are incompetent to contract — In- 
 fants — Wives 58 
 
 LECTURE IX. 
 
 Parties to Contracts — Insane Persons — Intoxicated Persons — 
 Aliens — Corporations — Public Companies — The mode in 
 which competent Persons contract — Agents — Partners, . 66 
 
 LECTURE X. 
 
 Principal and Agent, their respective Liabilities — Agency of 
 Brokers, Factors, Partners, Wives — Recapitulation — Rem- 
 edies by Action — Statutes of Limitations — Construction 
 of Contracts, 83 
 
THE STUDENT'S GUIDE 
 
 SMITH'S LAW OF CONTRACTS. 
 
 LECTURE I. 
 
 ON THE NATURE AN» CLASSIFICATION OF CONTRACTS, 
 AND ON CONTRACTS BY DEED. 
 
 Q. Into what two classes is the practice of the com- 
 mon law distributed, exclusive of the criminal law, title 
 to land, and the exchequer jurisdiction ? 
 
 A. Into contracts and torts. 
 
 Q. Contracts are divided into what three classes ? 
 
 A. 1. Contracts by matter of record. 
 
 2. Contracts under seal. 
 
 3. Contracts not under seal, or simple contracts. 
 Q. What is a contract of record? 
 
 A. A memorial or remenibrance on rolls of parch- 
 ment, and such memorial is not a record until enrolled 
 in the proper office. Such are statutes merchant and 
 statutes staple, and recognizances in the nature of 
 statutes staple. These contracts are now almost un- 
 heard of; the only contract of record with which we 
 now occasionally meet is a re^jognizancc, and that 
 
 Z.ofOon. I 
 
2 ON CONTRACTS BY DEED. 
 
 oftener in matters in which the crown is concerned than 
 between subject and subject. 
 
 Q. What are their peculiar advantages ? 
 
 A. 1st. That, like all records, they prove themselves ; 
 that is, their bare production, without any further 
 proof, is sufficient evidence of their existence should it 
 be controverted. 
 
 2dly. That if it become necessary to" enforce them 
 that may be done, if it be thought proper, by writ of 
 scire facias. 
 
 Q. What is a deed ? 
 
 A. A deed is a written instrument sealed and deliv- 
 ered; on paper or parchment signature is not necessary 
 at common law, but has been rendered essential to the 
 validity of certain contracts by the Statute of Frauds 
 and other statutes. 
 
 Q. Need the deed be delivered actually to the person 
 benefited ? 
 
 A. It is not absolutely necessary that the party exe- 
 cuting should take the instrument into his hand and 
 give it to the person for whose benefit it is intended ; 
 but, as it is said by Lord Coke, " a deed may be deliv- 
 ered by words without actual touch, or by touch without 
 words." 
 
 Q. What is an escrow ? 
 
 A. An escrow is a deed delivered conditionally to a 
 third person, to be delivered to the person for whose 
 benefit it purports to be, on some condition or other. 
 If that condition be performed it becomes an absolute 
 deed ; till then it continues an escrow, and if the con- 
 dition never be performed, it never becomes a deed at 
 
ON CONTRACTS BY DEED. 3 
 
 all. The conditional delivery must be to some third 
 person ; for if it were to the party himself who is to be 
 benefited the deed would become absolute. 
 
 Q. Into what two classes are deeds divided ? 
 
 A. Into deeds poll and indentures; a deed poll being 
 made by one party only, an indenture between two or 
 more parties. 
 
 Q. Is a consideration necessary to support a deed ? 
 What is the maxim with regard to simple contracts ? 
 
 A. A contract by deed requires no consideration, as 
 the law conclusively presumes that it is made upon a 
 good and sufficient consideration. 
 
 The maxim with regard to simple contracts is " ex 
 nudo pacta non oritur actio." 
 
 Q. What deeds are void for want of consideration ? 
 
 A. Some deeds which derive their effect from the 
 Statute of Uses, as a bargain and sale, and a covenant 
 to stand seised to uses ; the first requiring a pecuniary 
 consideration, and the latter a consideration of blood- or 
 marriage, to support it. Contracts in restraint of trade 
 are also void if made without consideration, although 
 under seal. 
 
 Q. Will an illegal consideration avoid a deed ? 
 
 A. If the consideration be illegal, it avoids the whole 
 instrument, and it cannot be sued upon although under 
 seal ; it signifies not whether it be a breach of the rules 
 of common law or consist in the contravention of the 
 provisions of some statute. 
 
 Q. Is a deed void if opposed to the general policy 
 and intent of a statute ? 
 
 A. Although not expressly prohibited, it may be il- 
 
ON CONTRACTS BY' DEED. 
 
 legal if opposed to the general policy and intent of the 
 statute, as if made to insure to one creditor of a bank- 
 rupt a greater share of his debt than the others can 
 have, or a contract made in order to enable another to 
 infringe that policy and intent. 
 
 Q. What is the meaning of estoppel by deed ? 
 
 A. That the person executing it is not permitted to 
 contravene or disprove what he has there asserted, 
 though he may do so ■where the assertion is in a con- 
 tract not under seal, as in a case of a receipt, where the 
 creditor may show that he has not received the money 
 if it is not under seal, but otherwise if that receipt be 
 by deed. 
 
 Q. When does a deed take eflFect ? 
 
 A. From the delivery and not from the apparent 
 date, and neither party can be estopped from showing 
 the real date of the delivery, although by doing so a 
 very different meaning may be given to the deed from 
 that which would be given to it if the parties were 
 estopped from denying that the date was the time from 
 which the deed commenced in effect. 
 
 Q. How many kinds of estoppels are there? 
 
 A. There are three kinds of estoppels : — 
 
 1. By matter of record, as, by letters patent, fine, 
 recovery, pleading, taking of continuance, confession, 
 imparlance, warrant of attorney or admittance, some of 
 which are now obsolete. 
 
 2. By matter in writing {i. e. by deed). 
 
 3. By matter in pais, as by livery, by entry, by ac- 
 ceptance of rent, by partition, or by acceptance of an 
 estate. 
 
ON CONTRACTS BY DEED. 5 
 
 Q. How does merger arise under a deed ? 
 
 A. This happens when an engagement has been made 
 by way of simple contract ; that is, by words in writing 
 not under seal, and afterwards the very same engage- 
 ment is entered into between the same parties by a deed. 
 When this happens the simple contract is merged, lost, 
 sunk, as it were, and swallowed up in that under seal 
 and becomes totally extinguished. Suppose, for in- 
 stance, I give my creditor a promissory note for 501. 
 and then a bond for the same demand, the note is lost, 
 swallowed up in the bond, and becomes totally extinct 
 and useless. 
 
 Q. Can a deed be got rid of by parol ? 
 
 A. A deed cannot be got rid of by parol : thus, a 
 verbal license will not exempt a man from liability for 
 breach of his covenant. Thus, in West v. Blaheway, a 
 tenant had covenanted not to remove a greenhouse, and 
 it was held no defence for him against an action for so 
 doing that he had his landlord's subsequent permission 
 so to do, that "permission not being shown to have been 
 under seal. "It is a well-known rule of law," said the 
 Lord Chief Justice, "that unumquodque ligamen dis- 
 solvitur eodem ligamine quo et ligatur." 
 
 Q. When is a contract by deed assignable at law ? 
 
 A. Where the contract is one between a landlord and 
 tenant and is such as in its nature to affect directly the 
 estates of either of them, which in law is called running 
 with the land ; the benefit and the burthen of that con- 
 tract, when under seal, will, without having regard to 
 the last-mentioned statute, if the estate of either is 
 assigned, pass with the reversion or the term to the new 
 
6 ON CONTRACTS BY DEED. 
 
 landlord or to the new tenant. This is partly by force 
 of the common law and partly by force of the stat. 32 
 Hen. 8, c. 34. 
 
 Q. What advantage had a deed formerly in case of 
 the death of the party bound by it ? 
 
 A. It charged his heirs (if the deceased bound his 
 heirs by using words for that purpose in the deed) to 
 the extent of any assets that might have descended to 
 them. 
 
 Q. How has the law been altered lately with respect 
 to specialty creditors ? 
 
 A. By 32 & 33 Vict. c. 46, s. 1, in the administration 
 of the estate of every person dying on or after the 1st 
 January, 1870, the specialty or simple contract creditors 
 stand in equal degree ; but by the proviso of that section 
 the Act is not to affect any lien, charge or other security 
 which any creditor may hold or be entitled to for the 
 payment of his debts. 
 
 Q. What difference formerly existed in the convey- 
 ance of real property ? 
 
 A. Real property of the corporeal kind, being capa- 
 ble of actual delivery, may, by the common law, be 
 aliened or transferred by delivery alone without deed, 
 and is, therefore, said to lie in livery ; while that of the 
 incorporeal kind, being incapable of delivery, requires 
 some other mode to be used for authenticating its aliena- 
 tion or transfer, which mode is a deed, and, therefore, 
 such property is said to lie in grant. 
 
 Q. What was the case of Wood v. Leadhitter? 
 
 A. As an easement cannot be granted without deed, 
 a ticket of admission to the grand stand at Doncaster 
 
ON CONTRACTS BY DEED. 7 
 
 to see the races, issued by the steward, and for which 
 the holder had paid a guinea, was held, not being under 
 seal, to convey to the latter no right to be there, and no 
 remedy for having been put out. 
 
 Q. What is the diiference between a gift of chattels 
 by word of mouth and by deed ? 
 
 A. In the former case after the gift, and before some- 
 thing has been done or said by the donee- to show his 
 acceptance of the thing given, the gift is revocable. But 
 if the gift be by deed, it vests in the donee upon the 
 execution of the deed, and is irrevocable by the donor 
 until it is actually disclaimed by the donee. After such 
 execution, and before such disclaimer, the estate is in 
 the donee without any actual delivery of the chattel 
 given.. 
 
 Q. What instruments are required by 8 & 9 Vict. c. 
 106, s. 3, to be by deed ? 
 
 A. Feoffments, petitions, exchanges, leases, required 
 by law to be in writing, assignments of chattel interests, 
 and surrenders in writing of all interests in tenements 
 and hereditaments, not being such as might have been 
 created without writing. 
 
 Q. Must an agent be authorized by deed to execute a 
 deed for another ? 
 
 A. A deed is necessary to authorize an agent to exe- 
 cute a deed for another ? 
 
 Q. How are patents and copyrights assignable ? 
 
 A. Patents for inventions are, by stat. 15 & 16 Vict. 
 c. 83, assignable only by deed or will, and such assign- 
 ments must be perfected by entry on the register of pro- 
 prietors. 
 
Copyrights within the Copyright Act, 5 & 6 Vict. c. 
 45, may, under sect. 13 of that Act, be assigned by en- 
 try made in the book of registry, kept at Stationers' 
 Hall, of the assignment. 
 
 Q. What is the remedy on contracts by deed ? 
 
 A. By an action. But the remedy must be pursued 
 within twenty years, except in cases of disability by rea- 
 son of infancy, coverture, lunacy, or absence beyond 
 seas, such being the period fixed by 3 & 4 Will. 4, c. 
 42, s. 3. 
 
 LECTURE 11. 
 
 THE NATURE OF SIMPLE CONTRACTS — OF WRITTEN CON- 
 TRACTS — THE STATUTE OS FRAUDS. 
 
 Q. In what respect are simple contracts inferior to 
 deeds ? 
 
 A. They do not create an estoppel. They are capa- 
 ble of being put an end to without the solemnity of a 
 deed. They form no ground of action (except an admin- 
 istration action in the Chancery Division) against the 
 heir or devisee, even though he be expressly named in 
 them ; and they require a consideration to support and 
 give them validity. 
 
 Q. What are the two great practical differences be- 
 tween verbal and written contracts ? 
 
 A. When a contract is reduced into writing it must 
 be proved by the writing, and by that only. For the 
 written instrument, being constituted by the parties the 
 
OF WRITTEN CONTRACTS. 9 
 
 expositor of their intentions, must, in order to effectuate 
 that object, be the only instrument of evidence to prove 
 their intentions, and no contemporaneous verbal expres- 
 sions can be engrafted on the writing so as to alter it 
 by adding to or taking away from its import. 
 
 With respect to verbal contracts there are several mat- 
 ters which, although- they are capable of becoming the 
 subjects of simple contracts, cannot, nevertheless, be 
 contracted for without writing, so as to give either party 
 a right to action on such contract. 
 
 Q. Can a written contract be varied by parol evi- 
 dence ? 
 
 A. The rule is that no parol evidence of what took 
 place at the time of making a written contract is ad- 
 missible for the purpose of contradicting or altering it. 
 Q. Can a subsequent variation of the contract be 
 shown by parol evidence ? 
 
 A. Only in those cases in which the contract, al- 
 though written, is of a description which is not required 
 by law to be reduced into writing at all. 
 
 Q. What is the difference between a patent and la- 
 tent ambiguity ? 
 
 A. A patent ambiguity is never allowed to be ex- 
 plained by verbal evidence, as a latent ambiguity may 
 be ; the former is one which appears on the face of the 
 instrument itself, and renders it ambiguous and unintel- 
 ligible, as if in » will there is a llanh left for the de- 
 visee's name. 
 
 A latent ambiguity is where the instrument itself is 
 on the face of it intelligent enough, but a difficulty 
 arises "in ascertaining the identity of the subject-matter 
 
10 OP WRITTEN CONTRACTS. 
 
 to which it applies, as if a devise were to John Smith 
 without further description. 
 
 Q. Can parol evidence be given in the case of a will ? 
 
 A. The object in all cases is to discover the intention 
 of the testator; the first and most obvious mode of 
 doing this is to read his will as he has written it, and 
 collect his intention from his words ; in order to effect 
 this, if it is necessary, parol evidence of the surround- 
 ing facts will be admitted. 
 
 Q. Under a contract to purchase "your wool," is 
 parol evidence admissible ? 
 
 A. When there is a contract for the sale of a specific 
 subject-matter, parol evidence may be received to show 
 what the nature of that subject-matter was, and that in 
 effect may be by proving what was in the knowledge of 
 the parties at the time of the contract being made. 
 
 Q. What other exception to the rule occurs in the 
 case of a custom ? 
 
 A. It occurs where parties have contracted with ref- 
 erence to some known and established usage. In such 
 cases the usage is sometimes allowed to be engrafted on 
 the contract in addition to the express written terms. 
 The notoriety of the custom makes it part of the. con- 
 tract. For the custom may be so universally followed 
 in the place or trade in which the contract was made 
 that no one can be supposed to have contracted without 
 looking upon it as part of his contracts 
 
 Q. Give two of the leading cases on this point. 
 
 A. In Wigglesworth v. DaUison, where a lease of 
 land under seal was made for a fixed term of years, 
 
OF WRITTEN CONTRACTS. 11 
 
 it was held that a custom of the parish in which the 
 land lay, that the tenant should, after the expiration of 
 the term, have the way-going crop, was obligatory on 
 the landlord ; that custom not altering or contradicting 
 the agreement in the case, but only superadding a right 
 as consequential to the taking. 
 
 Sutton V. Warren, where the plaintiff had held under 
 a lease by deed, which had expired, but continued to 
 occupy without further stipulation, was held bound 
 by the terms of the expired lease. 
 
 Q. Mention some other instances where parol evi- 
 dence is admissible to annex customary incidents to 
 written contracts. 
 
 A. This will be done not only between landlord and 
 tenant, but in commercial and other transactions of 
 life in which known usages have been established. 
 Thus, a person employing a broker on the Stock Ex- 
 change impliedly gives him power to act in accordance 
 with the rules there established, although he makes no 
 mention of them in his instructions, and although he 
 may even be ignorant of them. 
 
 Q. Give another instance where a customai-y incident 
 has been annexed to a written contract. 
 
 A. In the case of a bill of lading which provided 
 that goods should be delivered to the consignee or his 
 assigns at Liverpool, he or they paying freight for the 
 same, five-eighths of a penny per pound, with primage 
 and average accustomed, the shipowner. sued the indorsee 
 of the bill of lading, who had accepted the goods, to 
 recover the freight and primage, when the latter was 
 
12 OF WRITTEN CONTRACTS. 
 
 allowed to prove a custom at Liverpool, by which, he 
 was entitled to a deduction of three months discount 
 from the freight. 
 
 Q. When no time is fixed for the instrument to oper- 
 ate, is parol evidence admissible ? 
 
 A. Where an attorney entered into a written contract 
 whereby he agreed to take into partnership, in the busi- 
 ness of an attorney, a person who had not at that time 
 been admitted, no time being fixed by the writing for 
 the commencement of the partnership, it was decided 
 that (no time being expressly appointed) the partnership 
 commenced from the date of the agreement, and that 
 parol evidence could not be received to show that the 
 agreement was not to take effect until the intended 
 partner should be duly admitted. 
 
 Q. Can parol evidence be given to show a custom that 
 underwriters are not, under an ordinary form of policy, 
 liable to general average for the jettison of timber stored 
 on deck ? 
 
 A. Yes, as such custom is not inconsistent with the 
 terms of such policy, and it is a reasonable one, for the 
 goods so stowed are not in the part of the ship where 
 goods are usually carried and are in more than usual 
 peril. 
 
 Q. To what extent did Lord Lyndhurst, in Blackett 
 v. Royal Exchange Insurance Company, declare that 
 usage was admissible to explain ? 
 
 A. That "usage maybe admissible to explain what 
 is doubtful, it is never admitted to contradict what is 
 plain." 
 
 Q. Who must construe the contract ? 
 
THE STATUTE OP FRAUDS. 13 
 
 A. Although evidence of usage may be received to 
 explain the written contract, yet, when the jury have 
 decided on the meaning of the term, it is for the court 
 to put a construction upon the entire contract or doc- 
 ument. 
 
 Q. Must the writing constitute a complete contract ? 
 and give an example. 
 
 A. The writing must really he a complete contract. 
 For example, where, in a printed catalogue of articles 
 to be sold by auction, a dressing-case was described as 
 having silver fittings, but at the sale the auctioneer 
 stated in the defendant's hearing that the catalogue was 
 incorrect in describing the fittings as silver, and it would 
 be sold as having plated fittings, but no alteration was 
 made in the catalogue ; in an action for the price it was 
 proposed to prove what the auctioneer had said, but this 
 was objected to, as attempting to vary by parol a written 
 contract. But the court considered the evidence to be 
 unobjectionable, as, in fact, the auctioneer declined to 
 sell by the printed particulars, and the contract of sale 
 was altogether oral. 
 
 Q. When was the Statute of Frauds passed ? and 
 who were its authors ? 
 
 A. In the 29th year of the reign of Charles II. and 
 in the 3d chap, of the statute book of that year (29 Car. 
 2, cap. 3). It is said to have been the joint production 
 of Sir Matthew Hale, Lord Keeper Guildford, and Sir 
 Leoline Jenkins, an eminent civilian. 
 
 Q. What was its chief object ? 
 
 A. The chief object was to prevent the facility to 
 frauds and the temptation to perjury held out by the 
 
14 THE STATUTE OF FRAUDS. 
 
 enforcement of obligations depending for their evidence 
 upon the unassisted memory of witnesses. 
 
 Q. What are its principal enactments relating to con- 
 tracts ? 
 
 A. The 4th and 17th sections. (See post.) 
 
 Q. What are the other enactments in it ? 
 
 A. The first of the twenty-five sections of which it 
 consists is levelled at parol conveyances of land, and 
 contains the celebrated enactment, of which you have 
 doubtless often heard, that they shall create estates at 
 will only. The 2d section exempts from this enactment 
 the case of leases not exceeding three years from the 
 making thereof, and reserving two-thirds of the annual 
 value as rent. The 3d section forbids parol assignments, 
 grants or surrenders ; the 5th is levelled at unattested 
 devises ; the 6th at secret revocations of devises ; the 
 7th at parol declarations of trust ; the 19th and 20th 
 against nuncupative wills of personalty ; and the 21st 
 against verbal alterations in written wills. 
 
 Q. What are the contracts required by the 4th section 
 to be in writing and signed by the party to be charged 
 therewith or his agent ? 
 
 A. 1st. Promises by an executor or administrator to 
 answer damages out of his own estate. 
 
 2d. Promises to answer for the debt, default or mis- 
 carriage of another person. 
 
 3d. Agreements made in consideration of marriage. 
 
 4th. Contracts or sales of lands, tenements or her- 
 editaments, or any interest in or concerning them. 
 
 5th. Agreements not to he performed within the space 
 of a year after the making thereof. 
 
THE STATUTE OF FRAUDS. 15 
 
 Q. Must the consideration appear in writing ? and if 
 so, how ? 
 
 A. In consequence of the introduction of the word 
 agreement in the 4th section, the consideration as well 
 as the promise must appear in writing. This was set- 
 tled in Wain v. Warlters and other cases, for the con- 
 sideration is as much part of the agreement as the 
 promise itself. 
 
 Q. How has this been affected by the Mercantile Law 
 Amendment Act, 1856 ? 
 
 A. By Stat. 19 and 20 Vict. c. 97 (Mercantile Law 
 Amendment Act, 1856), s. 3, if the special promise to 
 answer for the debt, default or miscarriage of another 
 be in writing, duly signed, it is not necessary that the 
 consideration should appear in writing also. 
 
 Q. Must the names or sufficient descriptions of the 
 buyer and seller appear ? 
 
 A. The names or a sufficient description of the buyer 
 must appear. So, in Williams v. Lake, it was held 
 that an action could not be brought upon a guaranty in 
 which the plaintiff's name did not appear. 
 
 Q. What is a sufficient description ? 
 
 A. Upon a sale by auction of real estate in lots, the 
 particulars stated that the sale was by direction of the 
 " proprietor," but the name of the vendor did not ap- 
 pear. A memorandum on a copy of the particulars 
 was signed by the purchaser of one of the lots, and by 
 the auctioneer on behalf of the vendor. It was held 
 that the vendor was sufficiently described, and that the 
 memorandum was sufficient to satisfy the requirements 
 of the statute. In Bossiter \. Miller, "proprietors," 
 
16 THE STATUTE OF FRAUDS. 
 
 in Catling v. King, " trustee selling under a trust for 
 sale," was held a sufficient description. 
 
 Q. May the agreement be contained in several writ- 
 ings? 
 
 A. Where there are several papers the agreement may 
 be collected from them all, provided they are sufficiently 
 connected in sense among themselves, so that a person, 
 looking at them all together can make out the connec- 
 tion and the meaning of the whole without the aid of 
 any verbal evidence. But the statute is not satisfied 
 where the connection does not appear on the face of 
 the writings themselves. 
 
 Q. What was the great case of Boydell v. Drummond? 
 
 A. In this case the plaintiff proposed to publish an 
 edition of Shakspeare, with splendid engravings, and 
 issued a prospectus stating the terms. A copy of the 
 prospectus lay in his shop, and beside it lay a book 
 headed " Shakspeare Subscribers, their signatures ;" 
 but there was nothing in the book about the prospectus, 
 or in the prospectus about the book. The defendant 
 had signed the book, and having afterwards refused to 
 continue taking in the Shakspeare, the plaintiff brought 
 an action against him. Now the Shakspeare was not to 
 be finished for some years, and therefore the case was 
 one of those provided for by the 4th section of the Stat- 
 ute of Frauds, falling within the words " any agreement 
 that is not to be performed within one year from the 
 making thereof." Now the terms of the agreement were 
 in the prospectus, and so far the statute had been com- 
 plied with ; but the signature unluckily was in the book, 
 and the court held that as the prospectus did not refer 
 
THE STATUTE OF FRAUDS. 17 
 
 to the book, nor the book to it, the statute had not been 
 complied with, and the contract could not be enforced. 
 
 Q. Where may the signature be placed ? 
 
 A. The signature, it is obvious, is most regularly and 
 properly placed at the foot or end of the instrument 
 signed ; but it is decided in many cases that, although 
 the signature be in the beginning or middle of the in- 
 strument, it is as binding as if at the foot ; although, if 
 not signed regularly at the foot, there is always a ques- 
 tion whether the party meant to be bound by it as it 
 stood, or whether it was left so unsigned because he 
 refused to complete it. But where it is ascertained 
 that he meant to be bound by it as a complete contract, 
 the statute is satisfied, there being a note in writing 
 showing the terms of the contract, and signed by him. 
 
 Q. Is a signature in pencil good, or by stamping ? 
 
 A. A signature either in pencil or print is good. 
 There is also little or no doubt that a party may sign 
 within this statute by stamping his signature instead of 
 writing it. It seems, too, that a telegraiii containing 
 as usual the names of the sender and receiver would be 
 sufficient writing signed within the statute to bind the 
 sender. 
 
 Q. Must the writing be signed by the parties to the 
 contract ? 
 
 A. It is sufficient if the party suing on it is able to 
 produce a writing signed by the party whom he is seek- 
 ing to charge. The person seeking to enforce the agree- 
 ment must either do or be ready to do his own part of 
 the agreement before he can seek performance on the 
 part of the person who has signed. 
 
 L. of Con. 2 
 
18 THE STATUTE OF FRAUDS. 
 
 Q. If money is paid in pursuance of an unwritten 
 contract, will this be valid ? 
 
 A. Money so paid is a good payment for all purposes ; 
 thus, where lOOZ. was paid by the incoming tenant to the 
 outgoing one, partly for himself and partly for the land- 
 lady, in pursuance of a verbal agreement, and the out- 
 going tenant refused to pay the landlady her share, 
 saying that there was no writing, and that words were 
 but wind; on the landlady bringing her action, Lord 
 Ellenborough nonsuited her, on the ground that the 
 agreement, being for an interest in land, ought to have 
 been in writing ; but the Court of King's Bench set aside 
 the nonsuit with Lord EUenborough's own concurrence. 
 
 Q. When would equity enforce an unwritten con- 
 tract ? 
 
 A. The courts of equity would enforce the complete 
 performance of an agreement which had been partly per- 
 formed, although it could not have been sued upon by 
 reason of its not satisfying the Statute of Frauds, if 
 there had been no part performance. In other words, 
 in equity part performance takes the case out of the 
 statute. 
 
GUARANTEES. 19 
 
 LECTURE III. 
 
 THE FOURTH SECTION OF THE STATUTE OF FRAUDS — 
 
 PROMISES BY EXECUTORS AND ADMINISTRATORS 
 
 GUARANTEES MARRIAGE CONTRACTS CONTRACTS 
 
 FOR THE SALE OF LAND — AGREEMENTS NOT TO BE 
 PERFORMED WITHIN A TEAR. 
 
 Q. What is the principal case on a promise by an 
 executor or administrator to answer damages out of his 
 own estate? 
 
 A. Rann v. Hughes, which went up to the House of 
 Lords. The point decided in this case was that the 
 Statute of Frauds in no manner affected the validity of 
 such promises, or rendered them enforceable in any case 
 in which at common law they would not have been so ; 
 but merely required that they should be reduced into 
 writing, leaving the written contract to be construed in 
 the same manner as a parol contract would have been 
 had there been no writing. 
 
 Q. With regard to guarantees, must the party guar- 
 anteed be himself liable ? 
 
 A. The person whose debt is guaranteed must be him- 
 self liable. Thus, if A. go to a shop and say, "Let B. 
 have what goods he pleases to order, and if he do not 
 pay you I will," that is a promise to answer for a debt 
 of B. for which B. is himself also liable ; and if it be 
 sought to enforce it, it must be shown to have been re- 
 duced into writing ; but if A. had said, " Let B. have 
 goods on my account," or " Let B. have goods and 
 
20 GUARANTEES. 
 
 charge me with them," in these cases no -writing would 
 be required, because B. never would be liable at all, the 
 goods being supplierj on A.'s credit and responsibility, 
 though handed by his directions to B. 
 
 Q. Does a promise to answer for the debt of another, 
 who never became legally indebted to the promisee, come 
 within the statute ? 
 
 A. The Court of Queen's Bench, in MounUtephen v. 
 Laheman, held that it might be, if, at the time the 
 promise was made, the promiser and promisee expected 
 that a legal obligation would be incurred by the third 
 person. 
 
 Q. Would a verbal guarantee be sufficient if founded 
 on an entirely new consideration, conferring a distinct 
 benefit upon the party making such promise ? 
 
 A. The only test and criterion by which to determine 
 whether the promise needs to be in writing is the ques- 
 tion whether it is or is not a promise to answer for a 
 debt, default or miscarriage of another, for which that 
 other continues liable. If it be so it must be reduced 
 into writing. Nor can the consideration in any case be 
 of importance except in such cases as Goodniun v. Cham, 
 in which the consideration to the person giving the 
 promise is something which extinguishes the original 
 debtor's liability. 
 
 Q. Must the default be in payment of a debt or in 
 performing a contract ? 
 
 A. Any duty imposed by the law, although not in 
 performance of a contract against the breach, of which 
 it was the intention of the parties to secure and be 
 secured, must be proved in writing. Thus, where one 
 
GUARANTEES. 21 
 
 had improperly ridden another's horse and thereby 
 caused its death, a promise by a third person to pay a 
 sum of money in consideration that the owner of the 
 horse would not sue the wrongdoer was adjudged to be 
 unavailable, because in parol only. 
 
 Q. What did the Court of Queen's Bench decide in 
 the case of Eastwood v. Kenyon ? 
 
 A. In the case of Eastwood v. Kenyon the court held 
 that the promise which is to be reduced into writing is 
 a promise made to the person to whom the original 
 debtor is liable, but that a promise made to the debtor 
 himself, or even to a third person, to answer to the 
 creditor, would not require to be reduced into writing. 
 
 Q. What alteration in the law of guarantees was made 
 by the Mercantile Law Amendment Act, 1856 ? 
 
 A. By the Mercantile Law Amendment Act, 1856, 
 no guarantee shall be deemed invalid to support an 
 action, suit or other proceeding, to charge the person by 
 whom such promise shall have been made, by reason 
 only that the consideration for such promise does not 
 appear in writing, or by necessary inference from a 
 written document. 
 
 Q. What did Lord Tenterden's Act enact with regard 
 to representation, as to the conduct, credit or ability of 
 another ? 
 
 A. That no action shall be brought whereby to charge 
 any person upon or by reason of any representation or 
 assurance made or given concerning or relating to the 
 character, conduct, credit, ability, trade or dealings of 
 any other person, to the intent or purpose that such 
 other person may obtain credit, money or goods upon, 
 
22 GUARANTEES. 
 
 unless such representation or assurance be made in 
 ■writing, signed by the party to be charged therewith. 
 
 Q. What did the Court of Exchequer Chamber decide 
 in the case of Wade v. Tatton ? 
 
 A. That where a written representation is made as to 
 the character of a third person and also a parol repre- 
 sentation of the character of the same person, and the 
 person deceived thereby trusted to both representations 
 and would not have trusted to either of them alone, that 
 the party deceived thereby may maintain an action — a 
 material part of the representation having been made in 
 writing. 
 
 Q. Is the signature of an agent sufficient in this 
 case? 
 
 A. The signature of an agent generally is not suf- 
 ficient, but in the case of a banking company formed 
 under 7 Geo. 4, c. 46, the signature of the manager is 
 the signature not merely of an agent but of the company 
 itself, and, therefore, " the signature of the party to be 
 charged," within that section. 
 
 Q. Must a promise to marry be in writing ? 
 
 A. The case of Fhilpott v. Wallet has been overruled 
 by Oork v. Baker, and it has been decided by that case 
 and Harrison v. Oage that an agreement made between 
 two persons to marry is not an agreement in consider- 
 ation of marriage within the meaning of this enactment, 
 but that these terms are confined to promises to do 
 something in consideration of marriage other than the 
 performance of the contract of marriage itself. 
 
 Q. Give some examples of contracts concerning an 
 interest in land. 
 
CONTRACTS FOR THE SALE OF LANDS. 23 
 
 A. It was held in Crosby v. Wadsworth (6 East 602) 
 that an agreement conferring an exclusive right to the 
 vesture of land (^'. e. a growing crop of mowing grass), 
 during a limited time and for given purposes, is a con- 
 tract for sale of an interest in or at least concerning 
 lands ; and for the non-performance of which, if made 
 by parol, an action cannot be maintained. In Tyler v. 
 Bennett (5 A. & E. 377), an agreement that plaintiff 
 should be allowed to take water from a particular well 
 was held to concern land and to require a writing. On 
 the other hand, in Ilvans v. Roberts (5 B. & C. 829), 
 where the plaintiff had sold to the defendant a growing 
 crop of potatoes, this was decided not to be a sale of any 
 interest in or concerning land. 
 
 Q. How is the result of the cases laid down in Wil- 
 liams' Saunders ? 
 
 A. It appears to be now settled that, with respect 
 to emblements or fructus industriales (i. e. the corn 
 and other growth of the earth, which are produced not 
 spontaneously but by labor and industry), a contract 
 for the sale of them while growing, whether they are 
 in a state of maturity, or whether they have still to 
 derive nutriment from the land in order to bring them 
 down to that state, is not a contract for the sale of any 
 interest in land, but merely for the sale of goods. 
 {Evans v. Roberts (before cited) ; Sainsbury v. Mat- 
 thews, 4 M. & W. 343.) And it will make no difference 
 whether they are to be reaped or dug up by the buy^r 
 or by the seller. [Jones v. Flint, 10 A. & E. 753.) 
 
 Q. What does the 2d section of the Statute of Frauds 
 except from the operation of the 1st section ? 
 
24 CONTRACTS NOT TO BE PERFOKMED WITHIN A YEAR. 
 
 A. The 2d section excepts "all leases not exceeding 
 three years from the making thereof, whereupon the 
 rent reserved to the landlord during such term shall 
 amount unto two third parts at least of the full im- 
 proved value of the thing demised." But an agreement 
 for such a lease falls, not within the 1st, but within the 
 4th, section, for it is an agreement for an interest in 
 lands, and therefore, though a lease for a year would 
 be perfectly good, though made verbally, an agreement 
 (so made) for such a lease cannot be ^enforced. That 
 was the point decided in Hdge v. Strafford, 1 C. & J. 
 391 ; 1 Tyr. 293. 
 
 Q. Is an agreement that may or may not be per- 
 formed within the year within the statute ? 
 
 A. It has been decided that the agreements meant by 
 this (the 4th) section are not agreements which may or 
 may not be performed within a year, but agreements 
 which on the face of them contemplate a longer delay 
 than a year before their accomplishment. 
 
 Q. What agreements are under the clause " not to be 
 performed within a year" ? 
 
 A. In the case of Peter v. Qompton (Skinner 353 ; 
 Smith's L. C. 335, 7th ed.) it was held that "where 
 an agreement is to be performed upon a contingency, 
 and it does not appear within the agreement that it is 
 to be performed after the year, there a note in writing 
 is not necessary, for the contingency might happen 
 within the year; but where it appears by the whole 
 tenor of the agreement that it is to be performed after 
 the year, there a note in writing is necessary, otherwise 
 not." 
 
CONTRACTS NOT TO BE PERFORMED WITHIN A YEAR. 25 
 
 Q. Must an agreement to pay an annuity for life be 
 in writing ? 
 
 A. It must, although it may terminate by death 
 within a year. And so a contract for service for more 
 than a year, but subject to determination within the 
 year on a given event, is within the 4th section. The 
 circumstance that it is defeasible will not make it other 
 than a contract for more than a year. 
 
 Q. Does the clause apply to instruments to be per- 
 formed on either side within the year ? 
 
 A. Where all that is to be done by one party, as the 
 consideration for what is to be done by the other, act- 
 ually is done within the year, the statute does not pre- 
 vent that party suing the other for the non-performance 
 of his part of the contract. Where the one has had the 
 full benefit of the contract, the law will not permit the 
 other to withhold the consideration. As where a land- 
 lord had agreed to lay out 501. on improvements on the 
 premises demised, and the tenant in consequence had 
 undertaken to pay 51. a year additional rent for the re- 
 mainder of his term, of which there were several years, 
 and the landlord laid out the 50Z. within the year, he 
 was allowed to recover the additional rent, although the 
 agreement was not in writing ; for this enactment ap- 
 plies only to contracts not to be performed on either 
 side within the year. 
 
 2* 
 
26 SALE OF GOODS, ETC. 
 
 LECTURE IV. 
 
 SALE OF GOODS, ETC., UNDER THE SEVENTEENTH SEC- 
 TION OF THE STATUTE OF FRAUDS — CONSIDERATION 
 OF CONTRACTS BY DEED AND OF SIMPLE CONTRACTS. 
 
 Q. What is required by the 17th section of the Statute 
 of Frauds with respect to the sale of goods, wares or 
 merchandises ? 
 
 A. " No such contract for the price of 101. or upwards 
 shall be good except the buyer shall accept part of the 
 goods so sold, and actually receive the same, or give 
 something in earnest to bind the bargain, or in part pay- 
 ment, or that some note or memorandum in writing of 
 the said bargain be made and signed by the parties to 
 be charged by such contract, or their agents thereunto 
 lawfully authorized." It has been decided that shares 
 in railways and other joint-stock companies are not an 
 interest in land within the 4th section of the Statute of 
 Frauds, nor are they goods, wares or merchandises within 
 the 17th. A sale also of tenant's fixtures is not a sale 
 of goods within this section, or within the 4th. 
 
 Q. What three circumstances are as effectual as writ- 
 ing to make such contracts binding ? 
 
 A. Acceptance of any part of the goods, payment of 
 part of the price, and, lastly, the giving something by 
 way of earnest to bind the bargain, or in part payment ; 
 any one of which three things will as effectually perfect 
 the sale as writing would. 
 
RALE OF GOODS, ETC. 27 
 
 Q. Does the 17th section of the Statute of Frauds 
 extend to executory contracts ? 
 
 A. By Stat. 9 Geo. 4, c. 14, s. 7, it is enacted that 
 the 17th section of the Statute of Frauds " shall extend 
 to all contracts for the sale of goods of the value of lOZ. 
 sterling and upwards, notwithstanding the goods may be 
 intended to be delivered at some future time, or may not 
 at the time of such contract be actually made, procured 
 or provided, or fit or ready for delivery, or some act may 
 be required for the making or completing thereof, or 
 rendering the same fit for delivery." 
 
 Q. May several dod^iments be read together, and must 
 both parties mean the same thing ? 
 
 A. Yes ; as where there was a treaty for the sale of a 
 horse, and one wrote that he would buy him if warranted 
 sound and quiet in harness, and the other wrote that he 
 would warrant him sound and quiet in double harness, it 
 was considered by the court that the parties never httd 
 contracted in writing ad idem, and consequently that 
 the statute had not been complied with. 
 
 Q. Must the names of both parties appear in the mem- 
 orandum ? 
 
 A.~ The names of both parties must appear in the 
 memorandum, though the signature of the party to be 
 bound alone is requisite ; for there cannot be a bargain 
 without two parties, and therefore a memorandum naming 
 one only is not a memorandum of a bargain. But it 
 seems to be quite enough if the parties are sufficiently 
 described, and the price ought to be stated, if one was 
 agreed on, for that is part of the bargain. 
 
 Q. If no price be named what must be understood ? 
 
28 SALE OF GOODS, ETC. 
 
 A. The parties must be understood to have agreed for 
 what the thing is reasonably worth. 
 
 Q. Is a memorandum sufficient which, containing all 
 the terms of the bargain, acknowledges but repudiates it ? 
 
 A. Yes. Thus, where the purchaser of goods wrote 
 to the seller, referring to all the material terms of the 
 contract, but stating that he had never received the 
 goods, and declined to do so because they had been 
 damaged by the carrier before they reached him, the 
 court considered that the former part of the letter con- 
 tained a memorandum of the contract, which was all that 
 was required by the statute ; and that the existence in 
 the same writing of the refusal to abide by the bargain 
 did not neutralize the acknowledgment. 
 
 Q. Formerly an infant might have ratified a contract 
 made during infancy, after becoming of age ; how has 
 this been altered ? 
 
 A. By the Infants Relief Act, 1874 (37 & 38 Vict. c. 
 62), sect. 2. "No action shall be brought whereby to 
 charge any person upon any promise made after full age 
 to pay any debt contracted during infancy, or upon any 
 ratification made after full age of any promise or con- 
 tract made during infancy, whether there shall or shall 
 not be any new consideration for such promise or ratifi- 
 cation after full age." 
 
 Q. Must there be an exact agreement, express or im- 
 plied, to the terms of the proposed contract ? 
 
 A. There must, otherwise there is no mutuality, and 
 no contract. Take, for instance, the case of Hutchison 
 V. Bowker (5 M. & W. 535). There the defendants 
 wrote to the plaintiffs, offering them a certain quantity 
 
SIMPLE CONTRACTS. 29 
 
 of "good" barley upon certain terms, to which the 
 plaintiiFs answered, after quoting the defendants' letter, 
 as follows : " Of which oifer we accept, expecting you 
 will give us fine barley and full weight." The defend- 
 ants, in their reply, stated that their letter contained no 
 such expression as fine barley, and declined to ship the 
 same. Evidence was given at the trial that the terms 
 " good" and " fine" were terms well known in the trade, 
 and the jury found that there was a distinction in the 
 trade between "good" and "fine" barley. It was held 
 that although it was a question for the jury, what was 
 the meaning of those terms in a mercantile sense, yet 
 that they having found what that meaning was, it was 
 for the court to determine the meaning of the contract ; 
 and the court held that there was not a sufficient accept- 
 ance of the offer to make a complete contract. 
 
 Q. "What was the recent case of Lindsay v. Qundy ? 
 
 A. Here, one Blenkarn took premises at 37 Wood 
 Street, London, and wrote to the plaintiffs at Belfast, 
 ordering goods of them. The letters were dated 37 
 Wood Street, and signed " A. Blenkarn & Co.," in such 
 a way as to look like " A. Blenkiron & Co.," there being 
 an old-established firm of " A. Blenkiron & Co." at 123 
 Wood Street. The plaintiffs entered into a correspond- 
 ence with Blenkarn and ultimately supplied the goods 
 ordered, addressing them to " A. Blenkiron & Co., 37 
 Wood Street." The fraud having been discovered, 
 Blenkarn was indicted and convicted for obtaining goods 
 by falsely pretending that he was Blenkiron & Sons. 
 Before the conviction the defendants had purchased 
 some of the goods hond fide of Blenkarn without notice 
 
30 SIMPLE CONTRACTS. 
 
 of the fraud, and resold them to other persons. The 
 plaintiff having brought an action for the recovery of 
 the goods, it was held by the Court of Appeal, reversing 
 the judgment of the Queen's Bench Division, and after- 
 wards by the House of Lords, affirming the judgment 
 of the Court of Appeal, that the plaintiffs intended to 
 deal with Blenkiron & Sons, and therefore there was no 
 contract with Blenkarn ; that the property in the goods 
 never passed from the plaintiffs, and that they were 
 accordingly entitled to recover in the action. 
 
 Q. Must the offer be accepted without a new term 
 being added ? 
 
 A. The party who made the offer has a right to say, 
 "mow hcEc in foedera veni," and to decline any other 
 bargain than that which he offered. Where an offer is 
 accepted in the terms in which it is made, the contract 
 is binding on both parties. At any time before it is 
 accepted, the offer may be rescinded, but not afterwards. 
 
 Q. If the bought and sold notes differ, is the contract , 
 binding ? 
 
 A. It was decided by the Judicial Committee of the 
 Privy Council upon appeal in the case of Cowie v. 
 Bemfry (5 Moore (P. C.) 232), that the bought and sold 
 notes together formed the agreement between the partiefe, 
 and there being a material variation in the bought and 
 sold notes they did not together form a binding contract. 
 
 Q. What is the effect of an offer made by letter ? 
 
 A. The offerer must be considered as making during 
 every instant of time his letter is travelling the same 
 identical offer to the receiver. In like manner the re- 
 ceiver's acceptance of the offer is complete when in due 
 
SIMPLE CONTRACTS. 31 
 
 time he sends his answer. This due time is ascertained 
 by the usage of trade, by the actual stipulation of the 
 parties, or by what is a reasonable time under the cir- 
 cumstances. Wben the post is either directly or im- 
 pliedly appointed by the party making the offer to be 
 the channel of communication, the contract is complete 
 when the letter accepting the offer is posted, at all events 
 if the letter of acceptance reaches its destination, though 
 after a delay caused by circumstances over which the 
 sender has no control {Adams v. lAndsell, 1 B. & A. 
 681). 
 
 Q. What is meant by a deed is good without a con- 
 sideration ? 
 
 A. We do not mean to say that it stands for all pur- 
 poses on the same footing as an instrument for which 
 value has passed, but that where the interests of third 
 parties are not affected, but the question is between the 
 person who entered into the contract and the person 
 with whom it is made ; there a man cannot defend him- 
 self against a promise made by deed by saying that he 
 received no consideration for it, although he might 
 defend himself upon that ground upon the very same 
 promise if it Tiad been made by simple contract. 
 
 Q. Is a simple contract void for want of considera- 
 tion? 
 
 A. A simple contract is incapable of becoming the 
 subject of an action unless supported by a consideration. 
 ^x nudo facto non oritur actio is an old and well-es- 
 tablished maxim of our law, as well as of the civil law, 
 and has been illustrated by a great variety of cases 
 from time to time ; thus it has been laid down by Lord 
 
32 CONSIDERATION OF PROMISES. 
 
 Kenyon that a promise made by the captain of a ship 
 to one of his seamen, when the ship was in extraordi- 
 nary danger, to pay him an extra sum of money as an 
 inducement to extraordinary exertion was a void prom- 
 ise ; because every seaman is bound to exert himself to 
 the utmost for the safety of the ship, and therefore the 
 captain would get nothing from the seaman in exchange 
 for his promise except that which the seaman was bound 
 to do before. 
 
 Q. What are the reasons for this rule as laid down 
 in Eastwood v. Kenyon ? 
 
 A. The enforcement of such promises at law (as re- 
 ferred to in last answer), however plausibly reconciled 
 by the desire to carry into effect all conscientious en- 
 gagements, might be attended with mischievous conse- 
 quences to society — one of which would be the frequent 
 preference of voluntary undertakings to claims for just 
 debts. Suits would thereby be multiplied, and volun- 
 tary undertakings would also be multiplied, to the prej- 
 udice of real creditors. The temptations of executors 
 would be much increased by the prevalence of such a 
 doctrine, and the faithful discharge of their duty be 
 rendered more difficult. 
 
 Q. What does the law of England recognize as a con- 
 sideration capable of supporting a simple contract ? 
 
 A. Any benefit to the person making the 'promise, or 
 any loss, trouble or inconvenience to or charge upon the 
 person to whom it is made. 
 
 Q. How does Sir William Blackstone divide consid- 
 erations ? 
 
 A. Into four classes : 1st, Bo ut des, where I give 
 
CONSIDERATION OF PROMISES. 33 
 
 something that something may be given to me ; 2d, 
 Faoio ut facias, where I do something that something 
 may be done for me; 3d, Facio ut des, where I do 
 something that something may be given to me ; and 
 4th, Bo ut facias, where I give something that some- 
 thing may be done for me. 
 
 Q. What was the case of Harris v. Watson ? 
 
 A. A ship being on a voyage from Liverpool to Port 
 Philip and back, when in port at P. became so short- 
 handed that it was dangerous to life to proceed with 
 only the reduced crew. The captain, being unable to 
 procure additional hands, promised the able seamen re- 
 maining, who were under articles for the whole voyage, 
 an additional sum if they would assist in taking the 
 ship into port. It was held that the seamen were not 
 bound to proceed on the voyage, as it involved risk of 
 life, and that the promise was therefore not nudum pac- 
 tum, and was binding on the captain. 
 
 Q. From whence must the consideration arise ? 
 
 A. From the party to whom the promise is made. 
 If it proceed from some third person not in any way 
 moved or affected thereto by the promise, the latter is 
 a stranger to the consideration, and a promise made to 
 him is nudum pactum. 
 
 Q. Must the consideration be adequate ? 
 
 A. Provided there be some benefit to the contractor, 
 or some loss, trouble, inconvenience or charge imposed 
 upon the contractee, so as to constitute a consideration, 
 the courts are not willing to enter into the question 
 whether that consideration be adequate in value to the 
 thing which is promised in exchange for it. Very gross 
 
34 CONSIDERATION OF PROMISES. 
 
 inadequacy would be an index of fraud, and might af- 
 ford evidence of the existence of fraud ; and fraud is a 
 ground on which the performance of any contract may 
 be resisted. 
 
 Q. What was the case of Tliornhorow v. Whiteaore ? 
 
 A. It was an action in which the plaintiff declared 
 that the defendant in consideration of 2s. Qd. paid down 
 and Al. 17s. Qd. to be paid on the performance of the 
 agreement, promised to give the plaintiff two grains of 
 rye corn on Monday the 29th of March, four on the 
 next Monday, eight on the next, and so on for a year, 
 doubling ou every successive Monday the quantity de- 
 livered on the last Monday. 
 
 The defendant demurred to the declaration ; and upon 
 calculation it was found that, supposing the contract to 
 have been performed, the whole quantity of rye to be de- 
 livered would be 524,288,000 quarters ; so that, as Sal- 
 keld the reporter, who argued the demurrer, remarked, 
 all the rye grown in the world would not come to so 
 much. But the court said that though the contract was 
 a foolish one, it would hold at law, and that the defend- 
 ant ought to pay something for his folly. This case was 
 ultimately compromised. 
 
 Q. Is a contract in restraint of trade good ? 
 
 A. By the law of England, a contract in restraint of 
 trade is void ; but if in partial restraint of trade only, 
 it may be supported, provided the restraint be reason- 
 able and the contract founded on a consideration. 
 
 Q. How does a bill of exchange or promissory note 
 differ from an ordinary simple contract ? 
 
 A. They are always presumed to have been given for 
 
EXECUTED CONSIDERATIONS. 35 
 
 a good and sufficient consideration, until the contrary is 
 shown. And even if the contrary he shown, still if the 
 holder for the time being have given value for the instru- 
 ment, his right to sue on it cannot be taken away by 
 showing that the person to whom it was originally given 
 could not have sued, unless, indeed, it be further shown 
 that he [the holder] had notice of the circumstances, or 
 that he took the security where overdue, which is a sort 
 of constructive notice, and places him in the same situa- 
 tion as the party from whom he took. 
 
 LECTURE V. 
 
 CONSIDERATION OF SIMPLE CONTRACTS — EXECUTED CON- 
 SIDERATIONS WHERE EXPRESS REQUESTS AND PROM- 
 ISES ARE OF AVAIL MORAL CONSIDERATIONS ILLE- 
 GAL CONTRACTS RESTRAINTS OF TRADE. 
 
 Q. Is forbearance to sue sufficient consideration ? 
 
 A. Where a plaintiff, who had been appointed by the 
 Court of Chancery a receiver of the debts and moneys of 
 a firm, agreed to give time for payment to a person who 
 owed money to the firm, in consideration of which a third 
 person promised to guarantee the debt; in an action 
 against the third person .it was objected that there was 
 no sufficient consideration for his promise ; the Court of 
 Common Pleas, however, decided that there was ( Wil- 
 latts V. Kennedy, 8 Bing. 5). 
 
 Q. Is forbearance of an unfounded claim sufficient ? 
 
86 EXECUTED CONSIDERATIONS. 
 
 A. In Cooh V. Wright (1 B. & S. 559 ; 30 L. J. (Q. 
 B.) 321), the trustees under a local Act called on the 
 agent of the oivner of certain houses to pay certain ex- 
 penses chargeable under the Act on the owner. The 
 agent told the trustees that he was not owner, but that 
 B. was, and that such owner and not he was liable ; but 
 the trustees, notwithstanding, really believing that he 
 was liable, threatened to take proceedings against him. 
 Thereupon the agent, although he knew he was not liable, 
 gave his own promissory note to the trustees on their 
 agreeing to take less than the amount demanded, and 
 allowing it to be paid by installments, and this was de- 
 cided to be a good consideration. 
 
 Q. Is entrusting a man with goods a sufficient consid- 
 eration ? 
 
 A. Not only is the reposal of such a trust a sufficient 
 consideration for an express promise on the part of the 
 person in whom it is reposed to conduct himself faith- 
 fully in the performance of it ; but the law, even in the 
 absence of an express promise, implies one that he will 
 not be guilty of gross negligence. 
 
 Q. What was the famous case of Ooggs'Y. Bernard? 
 
 A. In this case Bernard had undertaken safely and 
 securely to take up several hogsheads of brandy from 
 one cellar and safely and securely to lay them down 
 again in another ; and he was held bound by that under- 
 taking, and responsible for damage sustained by them in 
 the removal. " The reason is," said Mr. Justice Gould, 
 " the particular trust reposed in the defendant, to which 
 he has concurred by his assumption, and in executing 
 which he has miscarried by his neglect." 
 
EXECUTED CONSIDERATIONS. 37 
 
 Q. What is the difference in the liability of remuner- 
 ative and unremunerative agents ? 
 
 A. From the former the law implies a promise that 
 they will act with reasonable diligence ; from the latter 
 only that they will not be guilty of gross negligence. 
 Thus, where a stage-coachman received a parcel to carry 
 gratis, and it was lost upon the road, Lord Tenterden 
 directed the jury to consider whether there was gross 
 negligence on the coachman's part. A remunerated 
 agent may be compelled to enter on the performance of 
 his trust, or at least made liable in damages if he neg- 
 lect to do so ; whereas an unremunerated agent cannot, 
 although, as we have seen, he may be held liable for 
 misconduct in the performance of it. 
 
 Q. Does a consideration arise where one is compelled 
 to do what another ought to have done? 
 
 A. This is a sufiScient consideration to support a 
 promise by the former to indemnify him. Such is the 
 common case of a surety who has b'een compelled to 
 pay a demand made against the principal, and who, as 
 we know, is entitled to bring an action to recover an 
 indemnity. 
 
 Q. What is the difference between an executed and 
 executory consideration ? 
 
 A. An executed consideration is one which has al- 
 ready taken place, an executory consideration one which 
 is to take place — one is past, the other future. Thus, 
 if A. delivered goods to B. yesterday, and B. makes a 
 promise to-day in consideration of that delivery, this 
 promise is said to be founded upon an executed consid- 
 eration, because the delivery of the goods is past and 
 
38 EXECUTED CONSIDERATIONS. 
 
 over. But if it be agreed that A. shall deliver goods 
 to B. to-morrow, and that B. shall, in consideration, do 
 something for A., here is an executory consideration, 
 because the delivery of the goods has not yet taken 
 place. Now, between executed and executory, or, in 
 other words, between past &nd future considerations, the 
 law makes this distinction, viz., that an executed con- 
 sideration must be founded on a previous request ; an 
 executory one need not. 
 
 Q. In what cases is a previous request implied ? 
 
 A. First, where one man is compelled to do that 
 which another ought to have done and was compellable 
 to do. (See Batard v. Eawes, 22 L. J. (Q. B.) 443.) 
 
 Secondly, where the person who is sought to be 
 charged adopts and tahes advantage of the benefit of 
 the consideration. (See Coles v. Bulman, 6 C. B. 184.) 
 
 Thirdly, where a person does, without compulsion, 
 that which the person sought to be charged was compel- 
 lable to do. 
 
 Q. Give an example of the first case. 
 
 A. In Gfrissell v. Robinson (8 Bing. N. 0. 10), the 
 plaintiffs had contracted to grant the defendant a lease ; 
 the lease was prepared by their solicitor and executed. 
 It is the general practice for the lessor's solicitor to pre- 
 pare the lease, and for the lessee to pay the solicitor ; 
 the lessee having refused to do so, the lessors paid him 
 as they might have been compelled to do ; and the court 
 decided that an action was maintainable by them for 
 money paid at the lessee's request. 
 
 Q. Is the promise implied as well as the consider- 
 ation ? 
 
EXECUTED CONSIDERATIONS. 39 
 
 A. Yes. Thus, if A. is indebted to B. in a certain 
 sum of money, and C. is his surety ; if C. be compelled 
 to pay, not only is a request by A. to do so implied by 
 the law, but a promise by him to indemnify 0. is also 
 implied. 
 
 Q. Give an example of the second case. 
 A. If A. purchases goods for B. without his sanc- 
 tion, B. may, if he think fit, repudiate the whole trans- 
 action ; but if, instead of doing so, he receive the goods 
 and take possession of them, the law will imply a re- 
 quest from him to A. to purchase them, and will also 
 imply a promise by him to repay A., and he will be lia- 
 ble to an action for money paid to his use, founded on 
 that implied promise. (See Coles v. Bulman, 6 C. B. 
 184.) 
 
 Q. Give an example of the third case. 
 A. A. owes B. 50Z., and C. pays it ; here if A. prom- 
 ise to repay C, it will be implied that the payment by 
 C. was made at his request. (See Wing v. Mill, 1 B. 
 & Aid. 104.) But in this class of cases, though the re- 
 quest is implied "where there is a promise, yet the prom- 
 ise must be express, for the law will not imply one, as 
 in the two former cases. 
 
 Q. Will a moral obligation support a promise ? and 
 what was the rule laid down in Wennall v. Adney ? 
 
 A. No ; the rule laid down in the case cited is " that 
 an express promise can only revive a precedent good 
 consideration, which might have been enforced at law 
 through the medium of an implied promise, had it not 
 been suspended hy some positive rule of law ; but can 
 give DO original cause of action, if the obligation on 
 
40 EXECUTED CONSIDERATIONS. 
 
 which it is founded never could have been enforced at 
 law, though not barred by any legal maxim or statute 
 provision." (See also Flight v. Reed, 1 H. & C. 703 ; 
 32 L. J. (Ex.) 265.) This principle may be illustrated 
 by the case of a debt barred by the Statute of Limit- 
 ations, a promise to pay which, if duly made, takes the 
 debt out of the protection of the statute, and makes the 
 debtor liable. 
 
 Q. What is the rule where the law implies a certain 
 promise from a consideration executed ? 
 
 A. That consideration will not support any other 
 promise than the one which the law implies. (See El- 
 derton v. Ummens, 6 C. B. 160, in Exchequer Chamber.) 
 Any other promise, consequently, however expressly 
 made, is nudum pactum. Thus, it has been decided (in 
 Hopkins V. Logan, 5 M. & W. 241, and other cases; 
 the latest being Walker v. Rostron, 9 M. & W. 411, 
 and 1 Smith L. C. 152, 7th ed.) that an account stated 
 and a sum thereupon found to be due to the plaintiff, 
 from which the law implies a promise to pay in prcesenti, 
 will not support a promise to pay in futuro. 
 
 Q. How was this instanced in the case of Rosoorla v. 
 Thomas ? 
 
 A. The declaration alleged that, in consideration that 
 the plaintiff had bought a horse of the defendant at a 
 certain price, the defendant promised that it did not 
 exceed five years old, and was sound and free from vice; 
 and the plaintiff having obtained a verdict, the court 
 arrested the judgment, because the only promise which 
 could be implied from the consideration was to deliver 
 the horse upon request ; and therefore, however ex- 
 
ILLEGAL CONTRACTS. 41 
 
 pressly the promise alleged might have been made, the 
 consideration would not support it. (See 3 Q. B. 234.) 
 
 Q. Is a deed good if founded upon an illegal consid- 
 eration ? 
 
 A. Every contract, be it by deed or be it without 
 deed, is void if it stipulate for the performance of an 
 illegal act or if it be founded upon an illegal consider- 
 ation. Ex turpi causd non oritur actio is the maxim of 
 our law, as well as of the civil. 
 
 Q. Of what sorts are illegality ? 
 
 A. It exists at common law, or is created ly some statute. 
 
 A contract illegal at common law is so on one of three 
 grounds : either because it violates morality, or because 
 it is opposed to the policy of the law, or because it is 
 tainted with fraud. 
 
 Q. Give instances of contracts void on the ground of 
 illegality. 
 
 A. You will find an example in the case of Fores v. 
 Johnes (4 Esp. 97), in which Mr. Justice Lawrence held 
 that a print-seller could not recover the price of libellous 
 publications which he had sold and delivered to the 
 defendant. 
 
 For this reason the printer of an immoral and libellous 
 work cannot maintain an action for the price of his labor 
 against the publisher who employed him. Even the 
 supplying lodgings, or clothing (see numerous cases cited 
 in Smith on Contracts, p. 201, note (I)), or a carriage 
 to a prostitute for the purpose of enabling her to carry 
 on her practices is illegal, and the creditor cannot re- 
 cover the price. (Pearce v. Brookes, 35 L. J. (Ex.) 
 134; L. R. lEx. 213.) 
 
 Z. of Cm. 3 
 
42 ILLEGAL CONTRACTS. 
 
 Q. Is a contract not to carry on his trade within the 
 limits of England good? 
 
 A. Such a covenant or promise is totally void. This 
 was decided so long ago as in the reign of Henry V. ; in 
 the Year Book of the second year of which reign, fol. 5, 
 pi. 26, a hond restraining a weaver from exercising his 
 trade was held void. And Judge Hull flew into such a 
 passion at the sight of it that he swore on the bench, 
 and threatened to send the obligee to prison till he had 
 paid a fine to the king. 
 
 Q. What distinction was first illustrated by Lord 
 Macclesfield in the case of Mitchell v. Reynolds ? 
 
 A. It is, that though a contract in general restraint 
 of trade is void, one in partial restraint of trade may be 
 upheld ; provided the restraint be reasonable, and pro- 
 vided the contract be founded upon a consideration. 
 
 Q. In what respects are such restraints partial? 
 
 A. They are usually partial in respect of time, as not 
 to exercise it for a specified period; or in respect of 
 space, as not to trade within a given district; and a 
 restraint limited as to space may be unlimited as to time 
 and yet good. 
 
 Q. Mention some cases in which such restraints were 
 upheld. 
 
 A. In the case of Chesman v. Nainhy (decided in the 
 House of Lords upon writ of error, 2 Str. '( 39 ; 3 Bro. 
 P. C. 349), in which the agreement was not to carry on 
 the trade of a linen draper within half a mile of the place 
 where the party was to serve as assistant ; in that of 
 Bunn v. Guy (4 East 190), where the agreement was 
 that one attorney in London selling his business to others 
 
ILLEGAL CONTRACTS. 43 
 
 should not practice as an attorney within London or 150 
 miles thereof; and in that of Proctor v. Sargent (2 M. & 
 Gr. 20), where the servant of a cowkeeper engaged not 
 to carry on the same trade as his master within five miles 
 for twenty-four months after the determination of his 
 service. But these restraints must, in order to be up- 
 held, be reasonable ; that is, a greater restriction must 
 not be wantonly imposed than can be necessary for the 
 protection intended. 
 
 Q. On what ground was a covenant not to carry on 
 the manufacture of American leather cloth in any part 
 of Europe held to be good, by V.-C. James, in the recent 
 case of The American Leather Qloth Company v. Lor- 
 sont ? 
 
 A. That the restriction contained in this clause was 
 not greater, having regard to the subject-matter of the 
 contract, than was necessary for the protection of the 
 purchasers. His honor, however, went on the ground 
 that the case much more resembled " the sale of a secret 
 which has been held to be perfectly good, with a stipu- 
 lation unlimited as to time and place as to communicat- 
 ing the secret or dealing with it so as to interfere with 
 the purchaser. It is settled by authority that a man 
 may bind himself not to communicate that process to any- 
 body else, anywhere, under any circumstances, in any 
 part of the world." (L. R. 9 Eq. 354.) 
 
 Q. Are contracts in general restraint of marriage 
 void? 
 
 A. Contracts in general restraint of marriage have 
 been held void. (See Newton v. Marsden, 31 L. J. 
 (Ch.) 690.) Thus, in Lowe v. Peers (4 Burr. 2225), a 
 
44 ILLKGAL CONTKACTS. 
 
 defendant entered into the following covenant : " I do 
 hereby promise Mrs. Catherine Lowe that I will not 
 marry any person "besides herself. If I do I agree to 
 pay her lOOOZ. within three months after I shall marry 
 anybody else." The Court of King's Bench held this 
 contract void, remarking that it was not a promise to 
 marry her, but not to marry any one else, and yet she 
 was under no obligation to marry him." 
 
 Q. Is a provision for future separation void ? 
 
 A. Such a provision is void on grounds of public 
 policy (see Hindley v. Marquis of Westmeath, 6 B. & C. 
 200) ; although a deed providing a fund for the lady's 
 support on the occasion of an immediate separation is 
 not so. And the Chancery Division will exercise its 
 jurisdiction in giving effect to arrangements of property 
 contained in articles of separation, such separation hav- 
 ing previously taken place, and will restrain the husband 
 from doing any act contrary to his covenant in such arti- 
 cles not to molest his wife. 
 
 Q. What is a marriage brocage contract, and is it 
 void? 
 
 A. It is where a man has agreed, in consideration of 
 money, to bring about a marriage. These are all void 
 as against public policy, the law considering that unions 
 so brought about are unlikely to be happy ones. This 
 class of cases is founded upon a case in the House of 
 Peers [Sail v. Potter, 3 Lev. 411), in which Thomas 
 Thynne gave an obligation of lOOOZ. to Mrs. Potter, con- 
 ditioned to pay her 500Z. within three months after he 
 should be married to Lady Ogle. 
 
ILLEGAL CONTRACTS. 45 
 
 LECTURE VI. 
 
 ILLEGAL CONTRACTS — FRA:UD — GAMING ON HORSE 
 RACING — WAGERS. 
 
 Q. Are conti'acts void which obstruct the course of 
 public justice? 
 
 A. Yes. Thus, in Collins v. Blantern, where five 
 persons had been indicted for perjury, and it was agreed 
 that Collins, who was their friend, should buy off the 
 prosecutor's evidence by giving him a note for 3^0?., in 
 consideration of which he undertook not to appear at the 
 assizes. And it was further agreed that, in order to in- 
 demnify Collins against the consequences of being called 
 upon to pay the note, Blantern should give Collins his 
 bond conditioned for the payment of 350^., the same sum 
 for which the note was made. In an action brought 
 upon the bond, the Court of Common Pleas held that it 
 was void, and that a plea showing the consideration for 
 which it was given was a good answer to the action. 
 
 Q. Can an indictment for misdemeanor be com- 
 promised ? 
 
 A. "The law," says the Court of Queen's Bench, in 
 Keir v. Leeman (6 Q. B. 821), "will permit a com- 
 promise of all offences, though made the subject of a 
 criminal prosecution, for which offences the injured 
 party might sue and recover damages in an action. It 
 is often the only manner in which he can obtain redress. 
 But if the offence is of a public nature, no agreement 
 can be valid that is founded on the consideration of 
 stifling a prosecution for it." 
 
46 ILLEGAL CONTRACTS. 
 
 Q. What are maintenance and champerty ? 
 
 A. Maintenance consists in one who has no interest 
 in the subject of a suit, and has no just right to interfere 
 in it, aiding by money or otherwise the parties interested. 
 This is forbidden by the law, whose policy has always 
 been to discourage disputes and litigation. 
 
 If a person having no interest in a suit interferes 
 with the object of sharing in the fruits of the suit, this 
 is champerty. If, therefore, an attorney agrees not to 
 charge his client costs, in consideration of having him- 
 self a proportion of what he may recover for him, this 
 agreement is champerty, and consequently illegal and 
 void. 
 
 Q. Is a contract with an alien enemy good ? 
 
 A. All contracts between British subjects and alien 
 enemies, not having a license to trade with this country, 
 are void, and cannot be enforced, even upon the return 
 of peace. The sovereign of this country has the right 
 to proclaim war, with all its consequences, enforcing or 
 mitigating them either generally or in particular in- 
 stances, as may be thought best by the government. 
 One of these consequences is, that trade and dealing 
 with the enemy, unless expressly permitted, are for- 
 bidden. 
 
 Q. Are agreements contravening the objects of the 
 legislature void ? 
 
 A. Such agreements violate the principle of the com- 
 mon law, which is to carry into effect the intent and 
 object of the legislature. The most common instances 
 of this illegality are, agreements to give a creditor of a 
 bankrupt more than his equal share of the bankrupt's 
 
ILLEGAL CONTRACTS. 47 
 
 estate, which it is the object of the Bankruptcy Acts to 
 divide equally amongst his creditors. 
 
 Q. What is meant by the words policy of the law, or 
 public policy ? 
 
 A. Two distinct classes of things are referred to by 
 them. Sometimes they indicate the spirit of a law as 
 distinguished from the letter of it ; as, when it is said 
 that contracts made by a trader, giving preference to 
 particular creditors, although not forbidden by the letter 
 of any enactment, violate the policy of the bankrupt 
 laws, the first object and policy of those laws being to 
 make a ratable distribution of a bankrupt's property 
 amongst all his creditors. At other times these ex- 
 pressions indicate a principle of law, which holds that 
 no subject can lawfully do that which has a tendency to 
 be injurious to the public, or against the public good. 
 
 Q. Under what three heads are conditions against 
 law reducible? 
 
 A. 1. Either to do something that is malum in se or 
 malum prohibitum. 
 
 2. To omit the doing of something that is a duty. 
 
 3. To encourage such crimes and omissions. 
 Q. What kind of deceit avoids a contract ? 
 
 A. The deceit may be of an active kind, as falsehood 
 and misrepresentation, actually used by one party for 
 the purpose of deceiving the other ; or it may be pas- 
 sive, as, where a vendor knows that a purchaser labors 
 under a delusion, which he also knows is influencing his 
 judgment in favor of purchasing, and suffers him to 
 complete his purchase under that delusion. 
 
 Q. What was the recent case of Ward v. Hohbs ? 
 
48 ILLEGAL CONTRACTS. 
 
 A. Here the defendant sent for sale to a public mar- 
 ket pigs wliicli he knew to be infected with a conta- 
 gious disease. They were exposed for sale subject to 
 a condition that no warranty would be ^iven, and no 
 compensation would be made in respect of any fault. 
 No verbal representation was made by or on behalf of 
 the defendant as to the condition of the pigs. The 
 plaintiif, having bought the pigs, put them with other 
 pigs, which became infected ; some of the pigs bought 
 from the defendant and also some of those with which 
 they were put died of the contagious disease. The 
 plaintiff having sued to recover damages for the loss 
 which he had sustained, the Court of Appeal held (re- 
 versing the judgment of the Queen's Bench Division) 
 that, although the defendant might have been guilty of 
 an offence against the Contagious Diseases (Animals) 
 Act, 1869 (32 & 83 Vict. c. 78), s. 67, yet he was not 
 liable to the plaintiff, for that his conduct in exposing 
 the pigs for sale in the market did not amount to a rep- 
 resentation that they were free from disease. 
 
 Q. What degree of moral fraud is necessary to 
 avoid a contract ? 
 
 A. If the representation be not known to be false 
 by the utterer of it, or be not used with intent to de- 
 ceive, it will not amount to fraud, although really false. 
 Moral fraud in a representation is essential in order to 
 invalidate a contract made upon the faith of that repre- 
 sentation. But it is not necessary, in order to consti- 
 tute moral fraud, that it should be false to the knowl- 
 edge of the party making it. If untrue in fact, and 
 not believed to be true by the party making it, and made 
 
ILLEGAL CONTRACTS. 49 
 
 for a fraudulent purpose, it is both a legal and a moral 
 fraud. This deceit, moreover, must also actually induce 
 the contracting party to enter into the contract. If he 
 contracted, not believing it, or contrary to his own 
 judgment, and not to the representation, he cannot 
 avoid this contract on account of the falsehood. 
 
 Q. Can a contract be enforced which is impliedly 
 forbidden by statute ? 
 
 A. "Where a contract," says Lord Tenterden, in 
 Weiherell v. Jones (3 B. & Ad. 221), " is expressly or 
 by implication forbidden, no court will lend its assist- 
 ance to give it eifect." Thus, where a ship which was 
 to sail from a British port in North America to a port 
 in the United Kingdom, between the 1st of September 
 and the 1st of May, had part of her cargo loaded on 
 the deck, which is forbidden by 16 & 17 Vict. c. 107, 
 ss. 170, 171 and 172, and the owners knowing these 
 things insured the cargo and the freight, the whole 
 voyage was held illegal, and the owners were not per- 
 mitted to recover the insurance. {Cunard v. Hyde, 
 2E. &E. 1; 29 L. J. (Q. B.) 6.) 
 
 Q. Does a penalty imply a prohibition ? 
 
 A. For this reason : a statute having required that 
 with all coals delivered in London above a certain quan- 
 tity the seller should deliver a certain ticket, and in case 
 of not delivering the ticket should for every offence for- 
 feit a sum not exceeding 20Z., the seller of a quantity of 
 coals, who had omitted to deliver a ticket with them to 
 his customer, was held not to be entitled to sue for the 
 price. [Oundell v. Dawson, 4 C. B. 378.) 
 
 Q. Is a contract void which violates the revenue law ? 
 
 3* 
 
50 ILLEGAL CONTRACTS. 
 
 A. It depends upon whether the legislature meant 
 to prohibit the act done, or rot. If the contract is for- 
 bidden by the express or implied enactment of some 
 statute it is void, but if the contract itself does not vio- 
 late the statute, but some incidental illegality occurs in 
 carrying it into effect, the contract is good and may be 
 made the subject-matter of an action, notwithstanding 
 the breach of the law which has occurred in carrying it 
 into effect. 
 
 Q. Is a contract void which cannot be performed 
 without a violation of the law ? 
 
 A. 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 an in- 
 tention to perform it in an illegal manner, it is neces- 
 sary to show that there was a wicked intention to break 
 the law. ( Waugh v. Morris, L. R., 8 Q. B. 202 ; 42 
 L. J. (Q. B.) 67.) 
 
 Q. Are contracts by way of gaming or wagering ille- 
 gal? 
 
 A. They are now void rather than illegal. The Acts 
 against gaming were formerly exceedingly complex and 
 troublesome, but the law has been much simplified by 
 Stat. 8 & 9 Vict. c. 109. 
 
 Q. What does the stat. 8 & 9 Vict. c. 109 enact ? 
 
 A. Sect 18 of this Act enacts, " That all contracts or 
 agreements, whether by parol or writing, by way of 
 gaming or wagering, shall be null and void; and that no 
 suit shall be brought or maintained in any court of law 
 or equity for recovering any sum of money or valuable 
 thing alleged to be won upon any wager, or which shall 
 
ILLEGAL CONTRACT?. 51 
 
 have been deposited in the hands of any person to abide 
 the event on which any wager shall have been made ; 
 provided always, that this enactment shall not be deemed 
 to apply to any subscription or contribution, or agree- 
 ment to subscribe or contribute, for or toward any plate, 
 prize or sum of money, to be awarded to the winner or 
 winners of any lawful game, sport, pastime or exercise." 
 
 Q. What did the case of Grizewood v. Blane show ? 
 
 A. That a colorable contract for the sale and purchase 
 of railway shares where neither party intends to deliver 
 or to accept the shares, but merely to pay " differences" 
 according to the rise or fall of the market, is gaming 
 within the last-mentioned enactment. 
 
 Q. Will the lawfulness of the game make the wager 
 good under section 18 ? 
 
 A. It is clear, under sect. 18, that the lawfulness of 
 any game at which any wager is made does not make 
 the wager lawful, in the sense of being recoverable in an 
 action ; but if a party loses a wager, and requests an- 
 other to pay it for him, the loser is liable to the party so 
 paying it, for money paid at his request. {Rosewarne 
 v. Billing, 33 L. J. (C. P.) 55.) 
 
 Q. Where money is deposited with a stakeholder to 
 abide the event of any wager, can it be withdrawn ? 
 
 A. There is nothing in the section under considera- 
 tion to prevent such a depositor, who repents of his ven- 
 ture and repudiates the wager, from revoking the author- 
 ity given by him to the stakeholder to pay the money to 
 the winner, at any time before the stakeholder has paid 
 over the money, and suing the latter for his deposit and 
 recovering it from him. But the winner, after the hap- 
 
52 ILLEGAL CONTRACTS. 
 
 pening of the event on which the wager depended, can- 
 not recover his winnings unless the transaction comes 
 within the protection of the proviso with which sect. 18 
 concludes. 
 
 Q. Are wager polices lawful ? 
 
 A. The stat. 14 Geo. 3, c. 48, prohibiting wager poli- 
 cies, altogether prevents a man from insuring an event 
 in which he has no interest, and where he has an inter- 
 est but not to the extent insured, prohibits him from re- 
 covering more than the amount of his interest. The 
 effect of this Act, in a word, is to invalidate wagers 
 framed in the shape of policies of insurance. Thus, a 
 wager on the price of Brazilian shares, framed like a 
 policy, was held invalid. [Paterson v. Powell, 9 Bing. 
 320.) 
 
 Q. Mention some cases where persons have been held 
 to have an interest. 
 
 A. It is clear that a creditor has an interest in the life 
 of his debtor ; that a trustee may insure for the benefit 
 of his cestui que trust ; that a wife has an interest in her 
 husband's life ; and that a man may insure his own life, 
 which is the common case of every day's experience. It 
 is also required that in every policy on the life of an- 
 other, the name of the person really interested when the 
 policy is effected, or for whose benefit it is effected, must 
 be inserted as the person interested. 
 
ILLEGAL CONTRACT?. 53 
 
 LECTURE VII. 
 
 THE lord's day ACT — SIMONT — BILLS OF EXCHANGE 
 FOR ILLEGAL CONSIDERATION — RECOVERY OF MONEY 
 PAID ON ILLEGAL CONTRACTS. 
 
 Q. What contracts are void under the Lord's Day- 
 Act? 
 
 A. By 29 Car. 2, c. 7, no tradesman, artificer, la- 
 borer, or other person whatever, may do or exercise any 
 ■worldly labor, or business, or work of their ordinary call- 
 ings upon the Lord's day (works of necessity or charity 
 only excepted), and every person of the age of fourteen 
 years offending in the premises shall forfeit five shillings. 
 
 Q. Does the hiring of a laborer by a farmer on a 
 Sunday come within this Act ? 
 
 A. In Reg. v. WMtnash (7 B. & C. 596), the court 
 decided, in the first place, that a farmer was not a per- 
 son within the meaning of the statute at all, for that 
 the meaning of the words " tradesman, artificer, work- 
 man, laborer or other person whatsoever" was to pro- 
 hibit the classes of persons named, and other persons 
 ejusdem generis of a like denomination ; and they did 
 not consider a farmer to be so. And secondly, they 
 held that even if the farmer were comprehended within 
 the class of .persons prohibited, the hiring of the serv- 
 ant could not be considered as work done in his ordinary 
 calling. 
 
 Q. What is the rule for construing a statute's words 
 ejusdem generis f 
 
54 ILLEGAL CONTRACTS. 
 
 A. That where an Act mentions particular classes of 
 persons, and then uses general words, such as " all 
 others," the general words are restrained to persons of 
 the like description with those specified. 
 
 Q. What statutes are there relating to simony ? 
 
 A. There are two statutes on this subject : the 31 
 Eliz. 0. 6, and 12 Anne, sess. 2, c. 12, the former of 
 which enacts that if any patron for any corrupt consid- 
 eration, by gift or promise, directly or indirectly, shall 
 present or collate any person to any ecclesiastical ben- 
 efice or dignity, such presentation shall be void, the 
 presentee shall be incapable of enjoying the benefice, 
 and the crown shall present to it. {Groldham v. JSd- 
 wards, 24 L. J. (C. P.) 189; 18 C. B. 389.) The 
 other statute, 12 Anne, sess. 2, c. 12, which enacts, in 
 efiect, that if any person, for money or profit, shall 
 procure in his own name, or in the name of any other, 
 the next presentation to any living ecclesiastical, and 
 shall be presented thereupon, the contract shall be 
 deemed to be simoniacal, and the presentation is to de- 
 volve upon the crown. 
 
 Q. What was the case of Fox v. The Bishop of 
 Chester ? 
 
 A. In that case the incumbent of a living was ex- 
 ceedingly ill and upon his deathbed ; the proprietor of 
 the advowson and another person being aware of this, 
 and believing that his death was at hand, agreed for the 
 sale of the next presentation. After the death of the 
 incumbent the vendee presented a clergyman who was 
 in no way privy to the bargain ; and, consequently, the 
 only question was as to the legality of the bargain it- 
 
ILLEGAL CONTRACTS. 55 
 
 self, and it was strongly urged that it was void ; and 
 such was the- opinion of the Court of King's Bench, 
 who delivered their judgment accordingly. But it was 
 carried to the House of Lords, and there reversed, ac- 
 cording to the unanimous opinion of the other judges, 
 and of Lord'Eldon, who was at that time chancellor. 
 
 Q. What case first decided that special resignation 
 bonds were illegal, and what is now the law ? 
 
 A. Fletcher v. Lord Sondes (3 Bing. 501, in Dom. 
 Proc). But the stat. 9 Geo. 4, c. 94, rendered special 
 resignation bonds and contracts, entered into after the 
 passing of that Act, good, if in favor of one or one of 
 two persons standing in the relation of uncle, son, 
 grandson, brother, nephew or grand-nephew to the 
 patron^by blood or marriage. 
 
 Q. Can a clergyman charge his benefice ? 
 
 A. No. The 13 Eliz. e. 20 directs that all chargings 
 of benefices, other than rents reserved upon the leases, 
 which the law allows to be made, should be void. 
 
 Q. What contracts are void under the Weights and 
 Measures Act, 1878 ? 
 
 A. Sect. 19 of this Act expressly makes void all con- 
 tracts not made ^^in terms of imperial weights or meas- 
 ures where weight or _ measure is agreed for. Sect. 21 
 contains an exception in favor of contracts in metric 
 weights, &c., or where decimal subdivisions of imperial 
 weights, &c., are used. 
 
 Q. Mention some exceptions to the rule that con- 
 tracts are not assignable. 
 
 A. Bills of exchange, which by the law merchant are 
 transferable by indorsement, if payable to order ; by 
 
56 ILLEGAL CONTRACTS. 
 
 delivery, if payable to leaver. Promissory notes, which 
 by the stat. 3 & 4 Anne, c. 91, are placed on the same 
 footing as bills of exchange (and bills of lading and 
 policies of insurance are made assignable by recent 
 statutes). 
 
 Q. What is now provided by the Judicature Act, 
 1873, s. 25, subs. 6 ? 
 
 A. "Any absolute assignment by writing under the 
 hand of the assignor (not purporting to be by way of 
 charge only), of any debt or any other legal chose in 
 action, of which express notice in writing shall have 
 been given to the debtor, trustee or other person from 
 whom the assignor would have been entitled to receive 
 or claim such debt or chose in action, shall and be 
 deemed to have been effectual in law (subject to all 
 equities which would have been entitled to priority over 
 the right of the assignee if this Act had not passed) to 
 pass and transfer the legal right to such debt or chose 
 in action from the date of such notice, and all legal and 
 other remedies for the same, and the power to give a 
 good discharge for the same, without the concurrence of 
 the assignor." 
 
 Q. What is the effect of a bill given for an illegal 
 consideration ? 
 
 A. Such bills are still void as between the original 
 parties, and also as against all persons who have taken 
 them with the notice of illegality, or after they had 
 become overdue, or without giving value for them ; but 
 good in the hands of every person wJio has given value, 
 and taken the instrument, before it was due and bond fide. 
 
 Q. Will an action lie to recover money paid on an 
 illegal contract? 
 
ILLEGAL CONTRACTS. 57 
 
 A. No. The reason of this is that the law will not 
 assist a party to an illegal contract. He has lost his 
 money, it is true, but he has lost it by his own folly in 
 entering into a transaction which the law forbids. (See 
 Collins V. Blantern, 2 Wilson 341.) 
 
 Q. What two exceptions are there to this rule ? 
 
 A. The first is, where the illegality is created hy some 
 statute, the object of which is to protect one class of men 
 against another, or where the illegal contract has been 
 extorted from one party by the oppression of the other. 
 The other exception is that, when money has been paid 
 in, or goods delivered, under an unlawful agreement, hut 
 there has been no further performance of it, the party 
 paying the money or delivering the goods may repudiate 
 the transaction, and recover back his money or goods. 
 {Taylor v. Bowers, 1 Q. B. D. 291; 45 L. J. (Q. B., 
 C. P. and Ex.) 163 ; 46 lb. 39.) 
 
 Q. Give an example of the first exception, as decided 
 in Smith v. Cuffe. 
 
 A. The defendant, who was a creditor of the plaintiff, 
 entered into an agreement with the plaintiff and the 
 other creditors to accept a composition of 10s. in the 
 pound on the debts due to them from the plaintiff. The 
 defendant would not enter into this agreement except 
 upon the consideration that the plaintiff should give him 
 his promissory note for the remainder of his debt. The 
 note was given, the 10s. in the pound paid, the defendant 
 passed away the note, and the owner compelled the 
 plaintiff to pay it. The court decided that the plaintiff 
 miffht recover back from the defendant the amount of 
 the note so paid. 
 
58 PARTIES TO CONTRACTS. 
 
 LECTURE VIII. 
 
 PARTIES TO CONTRACTS — WHO ARE INCOMPETENT TO 
 CONTRACT — INFANTS — WIVES. 
 
 Q. What two points are involved in considering the 
 parties to contracts ? 
 
 A. 1. Regarding the ahility of the parties to the con- 
 tract to contract at all. 
 
 2. Regarding their ability to enter into this or that 
 particular sort of contract ; for there are persons who 
 are allowed by the law to contract, but are not allowed 
 to contract in the same way as an ordinary individual ; 
 for instance, a corporation may contract by deed, but 
 cannot, except in certain cases, contract in any other 
 manner. 
 
 Q. For what is an infant liable ? 
 
 A. The general principle is, that an infant may bind 
 himself by a contract for what the law considers neces- 
 saries, but not by any other contract. 
 
 It is well established by the decisions that under the 
 denomination necessaries fall not only the food, clothing 
 and lodging necessary to the actual support of life, but 
 likewise means of education suitable to the infant's de- 
 gree, and all those accommodations, conveniences, and 
 even matters of taste which the usages of society for the 
 time being render proper and conformable to a person in 
 the rank in which the infant moves. The question what 
 is conformable — what is in the legal sense of the word 
 necessary — is, in each case, to be decided by a jury. 
 
PARTIES TO CONTRACTS. 59 
 
 Q. Ought the question of necessaries always to be left 
 to the jury ? 
 
 A. Though the question of "necessaries" or "non- 
 necessaries" is one of fact, and therefore for the jury, 
 yet, like all other questions of fact, it should not be left 
 to the jury by the judge unless there is evidence on which 
 they can reasonably find in the affirmative. If there is 
 not, the judge ought to withdraw the question from the 
 
 jury- 
 
 Q. How was this exemplified in the recent case of 
 Ryder v. Womhwell ? 
 
 A. In this case it was held that there was no evidence 
 of either a pair of solitaires worth 25^., or an antique 
 goblet, intended for a present, worth 15Z. 15s., being 
 necessaries for an infant, the son of a baronet, with no 
 independent establishment, and in receipt of an allow- 
 ance of 500?. a year ; that the question, therefore, of 
 " necessaries " or not ought not to be left to the jury, but 
 a nonsuit directed. If the articles supplied to the infant 
 are in their own nature necessaries, considering the in- 
 fant's degree and station, it is immaterial that he had 
 such an allowance paid to him as might have enabled 
 him to pay ready money for them. [BurgJiart v. Sail, 
 4 M. & W. 727.) 
 
 Q. Is an infant liable for necessaries supplied to his 
 infant children ? 
 
 A. It has always been considered that necessaries for 
 an infant's wife and children are necessaries for himself 
 [Turner v. Trisby, 1 Str. 168), a doctrine which, to- 
 gether with an infant's liability generally, is so fully and 
 clearly explained in the case of Chappie v. Cooper (13 
 
GO PARTIES TO CONTRACTS. 
 
 M. & W. 252) that it deserves to be carefully studied 
 by the student. 
 
 Q. Can an infant enter into trade ? 
 
 A. An infant cannot trade, and consequently cannot 
 bind himself by any contract having relation to trade. 
 We know by constant experience that infants do in fact 
 trade, and trade sometimes very extensively. However, 
 there exists a conclusive presumption of law that no in- 
 fant under the age of twenty-one years has discretion 
 enough for that purpose. (You will see this laid down 
 in the case of Whywall v. Qham'pion, Str. 1083, and 
 Bilh V. KeigJdey, 2 Esp. 480.) He may, therefore, re- 
 cover back in an action for money had and received a 
 sum which, while an infant, he had paid towards the pur- 
 chase of a share in the defendant's trade {Gorpe v. Over- 
 ton, 10 Bing. 252), not having actually received any 
 profit or benefit from the business {Holmes v. Blogg, 8 
 Taunt. 508). If he has obtained such profit, or has de- 
 rived advantage from the business, so that he cannot put 
 the defendant in the same situation in which he would 
 have been had the contract not been made, he cannot 
 recover back the money. 
 
 As an infant cannot trade, he cannot become bank- 
 rupt, and it has been decided that a fiat against him is 
 void [Belton v. Hodges, 9 Bing. 365). 
 
 Q. Are contracts made by infants confirmable after 
 coming of age ? 
 
 A. Recently the law as to the voidability and confirm- 
 ation or ratification of contracts made by infants has been 
 considerably altered by the Infants Relief Act, 1874 
 (37 k 38 Vict. c. 62), which was passed on the 7th Au- 
 
PARTIES TO CONTRACTS. 61 
 
 gust, 1874. The first and second sections of that Act 
 are as follows : — 
 
 "(1.) All contracts, whether by specialty or simple 
 contract, henceforth entered into by infants for the re- 
 payment of money lent, or to be lent, or for goods sup- 
 plied or to be supplied (other than contracts for neces- 
 saries), and all accounts stated with infants, shall be 
 absolutely void : provided always, that this enactment 
 shall not invalidate any contract into which an infant 
 may, by any existing or future statute, or by the rules 
 of common law or equity, enter, except such as now by 
 law are voidable. 
 
 " (2.) No action shall be brought whereby to charge 
 any person upon any promise made after full age to pay 
 any debt contracted during infancy, or upon any ratifi- 
 cation made after full age of any promise or contract 
 made during infancy, whether there shall or shall not 
 be any new consideration for such promise or ratification 
 after full age." 
 
 Q. Is a person who contracts with an infant bound ? 
 
 A. The rule is stated in Bacon's Abr. "Infancy," I. 4. 
 " Infancy is a personal privilege of which no one can 
 take advantage but the infant himself; and therefore, 
 though the contract of the infant be voidable, yet it shall 
 bind the person of full age." 
 
 Q. Of what two sorts are contracts with married 
 
 women 
 
 ? 
 
 A. It is either a contract which she entered into 
 before her marriage, and which continued in existence 
 afterwards ; or it is a contract which she entered into 
 subsequently to her marriage. 
 
62 PARTIES TO CONTRACTS. 
 
 Q. Who must sue for debts of the wife contracted 
 before marriage ? 
 
 A. " Tiie husband and wife jointly, but in the event 
 of his death they would survive to her." The husband 
 alone cannot be a petitioning creditor upon the bank- 
 ruptcy of a debtor of his wife who became her debtor 
 before her marriage. {Sherrington v. Yates, 12 M. & 
 W. 855.) There is also one case in which the husband 
 may sue upon a contract made with his wife while single 
 without joining her. This is, where a bill of exchange 
 or promissory note has been given to her ; in which case 
 his suing upon it in his own name is an election to take 
 it to himself, and a dissent to his wife's having any 
 interest in it. 
 
 Q. What is the liability of the husband for his wife's 
 debts contracted before marriage ? 
 
 A. At common law he is liable upon them if sued 
 during the coverture ; but this has been altered by the 
 Married Women's Property Act, 1870 (33 & 34 Vict. 
 c. 93). By sect. 12 of that Act, the husband, where 
 the marriage has taken place since the Act, is no longer 
 liable for the debts of his wife contracted before mar- 
 riage. The wife, however, is liable to be sued for them, 
 and any property belonging to her for her separate use 
 is liable to satisfy such debts as if she had continued 
 unmarried. But this Act has been amended by the 
 Married Women's Property Act (1870) Amendment 
 Act, 1874 (37 & 38 Vict. c. 60), which was passed on 
 the 30th July, 1874, the first section of which enacts 
 that " a husband and wife married after the passing of 
 this Act may be jointly sued for any such debt." The 
 
PARTIES TO CONTRACTS. 63 
 
 Amendment Act, however, limits the husband's liability 
 for such debts to the extent of his wife's property, as 
 defined in sect. 5 of that Act. 
 
 Q. What was decided in the case of Marshall v. 
 Hutton ? 
 
 A. In this case it was decided that, at common law, a 
 married woman cannot bind herself by any contract 
 made during her coverture, although she was separated 
 from her husband and had a separate maintenance ; nor 
 can she where living in open adultery, although the 
 contract was for goods sold to her, and the vendor knew 
 not of her marriage. [Williamson v. Dawes, 9 Bing. 
 292.) 
 
 Q. When may the wife now contract alone ? 
 
 A. The first case is, where the husband is civilly 
 dead, as, for instance, where he is under sentence of 
 transportation. In such a case, to prevent her from 
 contracting would be to deprive her, too, of all civil 
 rights ; since the husband, being civilly dead, is no 
 longer capable of contracting for her. {^x parte 
 Franks, 7 Bing. 762.) Another case is, where the 
 husband is a foreigner, belonging to a country at war 
 with Great Britain. In such case, as he cannot law- 
 fully sue or contract in England, it seems to be ad- 
 mitted that his wife may do so as if she were unmarried. 
 {Burden v. Keverberg, 2 M. & W. 61.) By the custom 
 of the city of London, a married woman is allowed to be 
 a trader in her individual capacity, and may sue alone 
 ia the city courts on contracts made by her in the course 
 of such trade. In case of a judicial separation, while 
 the separation continues the wife is considered as a 
 
64 PARTIES TO CONTRACTS. 
 
 feme sole, and may contract as such. Moreover, a -wife 
 deserted by her husband may obtain an order to protect 
 any property which, after her desertion, she may acquire 
 by her own industry, or may become possessed of; and 
 she is, during the continuance of the order and during 
 her desertion, in the like position in regard to property 
 and contracts, suing and being sued, as if she had ob- 
 tained a decree of judicial separation. (Sect. 21.) 
 
 Q. Can the husband avail himself of contracts made 
 ■with the wife during coverture ? 
 
 A. Yes; it has been decided that if a contract be 
 made with the wife on good consideration, during the 
 marriage, the husband may, if he please, take advantage 
 of it and recover in an action on it, in which action he 
 may join his wife as a co-plaintiif. And if he die with- 
 out taking any such step, the right to sue upon it will 
 survive to the wife. One of the earliest authorities on 
 this subject is Brashford v. Buckingham, Cro. Jac. 77 ; 
 confirmed in error. Id. 205. 
 
 Q. When a chose in action, such as a bond or note, 
 is given to the wife, what are the rights in it ? 
 
 A. " The husband may elect to let his wife have the 
 benefit of it; or, if he think proper, he may take it 
 himself. And if, in this case, the husband had, in his 
 lifetime, brought an action upon this note in his own 
 name, that would have amounted to an election to take 
 it himself, and to an expression of dissent on his part 
 to his wife's having any interest in it. On the other 
 hand, he may, if he pleases, leave it as it is ; and, in 
 that case, the remedy on it survives to the wife, or he 
 may adopt another course, and join her name with his 
 
PAKTIES TO CONTRACTS. G5 
 
 own ; and in that case, if lie should die after judgment, 
 the wife would be entitled to the benefit of the note, as 
 the benefit would survive to her." 
 
 Q. What efi"ect has the Married Women's Property 
 Act, 1870, on her contracts ? 
 
 A. By sect. 1 of this Act the wages and earnings 
 of any married woman, acquired or gained by her after 
 the passing of the Act, in any employment, occupation 
 or trade in which she is engaged, or which she carries 
 on separately from her husband, and also any money or 
 property so acquired by her through the exercise of any 
 literary, artistic or scientific skill, and all investments 
 of such wages, earnings, money or property, shall be 
 deemed and taken to be projperty held and settled to 
 her separate use. Under sect. 10 of the same Act " a 
 married woman may effect a policy of insurance upon 
 her own life or the life of her husband for her separate 
 use." And sect. 11 enables a married woman to main- 
 tain an action in her own name for the recovery of any 
 wages, earnings, money and property by the Act de- 
 clared to be her separate property. 
 
 Q. What effect have married women's contracts in 
 equity ? 
 
 A. According to the rules of equity, a married woman 
 may bind by her contracts her separate estate, if she 
 has any. Persons, therefore, who have supplied goods 
 to a married woman, though they cannot in action claim 
 relief against her personally, yet they may claim a 
 charge on her separate estate, where she has any. But 
 in such action the husband must be joined with her as a 
 defendant. 
 
 Z. 0/ Oon. 4 
 
66 PARTIES TO CONTRACTS. 
 
 • Q. Must tbe husband be joined as a defendant in an 
 action against the wife on her contracts ? , 
 
 A. The husband must be joined as a defendant, al- 
 though the wife was living apart from him, the Married 
 Women's Property Act, 1870, not having altered the 
 law as to the proper mode of suing a married woman in 
 respect of that property which by that Act was made 
 her separate estate. 
 
 LECTURE IX. 
 
 PARTIES TO CONTRACTS — INSANE PERSONS — INTOXICATED 
 PERSONS — ALIENS — CORPORATIONS — PUBLIC COMPA- 
 NIES — THE MODE IN WHICH COMPETENT PERSONS 
 CONTRACT — AGENTS — PARTNERS. 
 
 Q. For what contracts are lunatics liable ? 
 
 A. It would not be for the lunatic's own benefit to 
 prohibit him absolutely from binding himself by any 
 contract whatever. Such a prohibition might prevent 
 him from obtaining credit for the ordinary necessaries 
 of life ; and there are modern cases in which contracts 
 evidently of a fair and reasonable description, entered 
 into with a lunatic, have been held binding on him, and 
 have been enforced. In the case of Baxter v. Earl of 
 Portsmouth, (5 B. & C. 170), an action was brought 
 against the Earl of Portsmouth for the hire of several 
 carriages. It was proved that they were suitable to his 
 station and fortune, and that the plaintiffs had no reason 
 
PARTIES TO CONTRACTS. 67 
 
 to suppose him of unsound mind and had practiced no 
 imposition upon him, and they were held entitled to 
 recover. 
 
 Q. What is the general conclusion derived from all 
 the cases ? 
 
 A. It seems clear that a lunatic is liable upon an ex- 
 ecuted contract for articles suitable to his degree, fur- 
 nished by a person who did not know of his lunacy, 
 and practiced no imposition upon him. Where A. ad- 
 vanced money on mortgage to B., a lunatic, but did not 
 know B.'s state, and took no advantage of him, he was 
 held entitled to a decree of foreclosure. {Campbell v. 
 Hooper, 24 L. J. (Ch.) 644.) It seems equally clear 
 that he is not liable when the other contracting party 
 has taken advantage of his lunacy; indeed, that was 
 the decision in Levy v. Baker, reported in a note to 
 Brown v. Jodrell, M. & M. 106, n. 
 
 Q. What are the two most recent cases on the sub- 
 ject? 
 
 A. Molton V. Qamroux, 2 Ex. 487, and Beavan v. 
 McDonnell, 23 L. J. (Ex.) 94. 
 
 Q. Will intoxication avoid a contract ? 
 
 A. In Pitt V. Smith (3 Camp. 33), issue had been 
 joined upon the question whether there was an agree- 
 ment between the plaintiff and defendant for the sale 
 of an estate. It was proved that, in fact, there was an 
 agreement signed, but one of the parties when he signed 
 it was intoxicated. Lord Ellenborough said, " There 
 was no agreement between the parties, if the defendant 
 was intoxicated in the manner supposed when he signed 
 this paper. He had not an agreeing mind. Intoxica- 
 
68 PAKTIBS TO CONTRACTS. 
 
 tion is good evidence upon a plea of non est factum to a 
 deed, of non concessit to a grant, or of non assumpsit to 
 a promise;" and he directed a nonsuit, which the full 
 court afterwards refused to set aside. In Fenton v. Hol- 
 loway (1 Stark. 126), Lord Ellenborough again ruled in 
 the same manner. And it may be considered as now set- 
 tled that intoxication avoids a contract when it is so 
 complete as to prevent a man from knowing what he is 
 about. In that state he is, in common parlance, " not 
 himself," nor are his acts his own. It has been recently 
 held that the contract of a man too drunk to know what 
 he is about is voidable only, and not void, and therefore 
 capable of ratification by him when he becomes sober. 
 {Matthews v. Baxter, L. R., 8 Ex. 132 ; 42 L. J. (Ex.) 
 73.) 
 
 Q. What is the rule with respect to the contracts of 
 alien friends ? 
 
 A. They have a right to contract with the subjects of 
 this country, and may sue on such contracts in the courts 
 of this country, whether the contract was made in Eng- 
 land or abroad ; with this distinction, that if it was made 
 in England it is expounded according to the law of Eng- 
 land ; if abroad, according to the law of the country 
 where it is made. But, whether it was made abroad or 
 in England, the person who sues on it here must take 
 the remedy here as he finds it, although, perhaps, abroad^ 
 there might have been a more advantageous one. 
 
 Q. What is the rule as to contracts with alien ene- 
 mies ? 
 
 A. All contracts made with them are wholly void. 
 Indeed, in one case it was decided that if the contract was 
 
PARTIES TO CONTRACTS. G9 
 
 made during war it does not become capable of being 
 enforced even on the return of peace ; although if a con- 
 tract be made with an alien friend, and a war afterwards 
 breaks, out between his country and this, the effect is to 
 suspend his right to sue upon the contract until the 
 return of peace, not wholly to disqualify him from 
 suing. 
 
 Q. What is the effect of the Naturalization Act, 
 1870? 
 
 A. By this Act (33 & 34 A^ct. c. 14), s. 2, real and 
 personal property of every description may be taken, ac- 
 quired, held and disposed of by an alien in the same man- 
 ner in all respects as by a natural-born British subject ; 
 and a title to real and personal property of every descrip- 
 tion may be derived through, from or in succession to an 
 alien in the same manner in all respects as through, from 
 or in succession to a natural-bom British subject. 
 
 Q. Can felons and outlaws make contracts ? and how 
 has the law been altered ? 
 
 A. They are liable upon the contracts made by them 
 while in that situation, though incapable of taking ad- 
 vantage of them. This disability is removed by pardon ; 
 and when the attainder or outlawry is removed, the party 
 may contract and sue as before. (Bac. Abr. " Out- 
 lawry," H.) It should be observed, however, that the 
 law as to the inability of felons to enforce contracts has 
 been modified by 33 & 34 Vict. c. 23, which was passed 
 on the 4th July, 1870. Sect. 1 of that Act provides 
 that " from and after the passing of this Act, no confes- 
 sion, verdict, inquest, conviction or judgment of or for 
 any treason or felony or felo de se shall cause any 
 
70 PARTIES TO CONTRACTS. 
 
 attainder or corruption of blood, or any forfeiture or 
 escheat, provided that nothing is this Act shall aifect the 
 law of forfeiture consequent on outlawry." 
 
 Q. How must a corporation contract ? 
 
 A. A corporation aggregate consists of a number of 
 individuals united in such a manner that they and their 
 successors constitute but one person in law. A corpo- 
 ration contracts by its common seal, which, being affixed 
 to the contract, authenticates it, and makes it the deed 
 of the corporation ; and, as a general rule, that is the 
 only way in which a corporation can contract. (Com. 
 Dig., "Franchises," F. 13.) A few instances will show 
 the force and application of this important rule. Thus, 
 in the Mayor of Ludlow v. Charlton (6 M. & W. 815), 
 the defendant had laid out a sum of money in pulling 
 down and altering an inn, and doing other work at the 
 request and for the convenience of the corporation, con- 
 fiding in their promise to pay him that sum for such 
 work ; but though he laid out more than that sum, he 
 was unable to charge the corporation with it, from having 
 neglected the very obvious and easy mode of binding the 
 corporation by deed, as the law prescribes. Even an en- 
 try by the corporation in their own books of a minute of 
 this agreement was not admitted to bind them. 
 
 Q. On what principle have exceptions been allowed ? 
 
 A. The principle appears to be convenience, amount- 
 ing almost to necessity. Hence, the retainer by parol 
 of an inferior servant authorizing another to drive 
 away cattle damage feasant, to make a distress or the 
 like, the doing of acts very frequently recurring or too 
 insignificant to be worth the trouble of affixing the 
 
PARTIES TO CONTRACTS. 71 
 
 common seal, are established exceptions. In such cases 
 the head of the corporation has, from the earliest time, 
 been considered as delegated by the rest to act for 
 them. 
 
 Q. What was the case of Qhurch v. The Imperial 
 Gras Light Company ? 
 
 A. The defendants entered into a simple contract 
 ■with the plaintiff to supply him with gas at a certain 
 rate, and the court held that they had power to enter 
 into this contract, and to sue in assumpsit for the price 
 of the gas supplied. " The general rule of the law," 
 said the court, in delivering its judgment, "is that a 
 corporation contracts under its common seal ; as a gen- 
 eral rule it is only in that way that a corporation can 
 express its will or do any act." Whenever to hold the 
 rule applicable would occasion a great inconvenience, or 
 tend to defeat the very object for which the corporation 
 was created, the exception has prevailed. 
 
 Q. Give another instance of the exception to this 
 rule. 
 
 A. Where a company incorporated under the Com- 
 panies Act, 1862, for the working of collieries con- 
 tracted, but not under seal, with an engineer for the 
 erection of a pumping-engine and machinery for use in 
 the colliery, and paid him part of the price ; in an ac- 
 tion by the company against the engineer for a breach 
 of contract in refusing to deliver the engine and machin- 
 ery, it was held that the action was maintainable, though 
 the contract was not under seal. 
 
 Q. How must contracts be made between authorities 
 created by the Public Health Act, 1875 ? 
 
72 PARTIES TO CONTRACTS. 
 
 A. By 38 & 39 Vict. c. 55 contracts made between 
 "urban authorities," created by that Act, cannot be 
 enforced if for an amount exceeding 50Z., unless under 
 their common seal. 
 
 Q. What Acts now regulate the law relating to pub- 
 lic companies ? 
 
 A. The principal is the Companies Act, 1862 (25 & 
 26 Vict. c. 89), which has repealed most of the former 
 Acts, and has established a system which varies much 
 from the ordinary rules of law, and which can be learnt 
 only by a careful study of the statute itself, and of the 
 decisions of the courts upon the questions which have 
 occurred in applying it to practice. This Act is 
 amended by the Companies Act, 1867 (30 & 31 Vict. 
 c. 131). 
 
 Q. What is a joint stock company ? 
 
 A. A joint stock company is a partnership, consist- 
 ing for the most part of a very large number of mem- 
 bers, whose rights and liabilities would be precisely the 
 same as those of any other partners did not their mul- 
 titude oblige them to adopt certain peculiar regulations 
 for the government of the concern, which are ordinarily 
 contained in an instrument called a deed of settlement. 
 
 Q. Does the common law prevail when not exeluded 
 by agreement ? 
 
 A. In all cases which are not regulated by the deed 
 of settlement, and the private, or, as it is called, special 
 Act, or by one or other of the general statutes we have 
 mentioned, the common law prevails, and the rules 
 apply which would apply to an ordinary partnership ; 
 and, on the other hand, the parties having exchanged 
 
PARTIES TO CONTRACTS. 73 
 
 their mutual rights at common law for those stipulated 
 for in their deed are bound by the latter, and cannot, 
 as a general rule, act otherwise than in the stipulated 
 manner. 
 
 Q. How are shares transferred ? 
 
 A. In the transfer of shares, if the approbation of the 
 directors be required as a preliminary to the transfer, it 
 must, of course, be procured, and that by the vendor, 
 who must do everything necessary to vest the property 
 in the purchaser, although it is generally for the pur- 
 chaser to prepare and tender the conveyance. And, 
 therefore, when the shares are, by the provisions of an 
 Act of Parliament, transferable by deed only, the pur- 
 chaser must tender a deed to the seller for execution 
 before he can sue for not transferring them ; and a 
 sealed instrument of transfer, having the name of the 
 vendee in blank at the time when it is sealed and de- 
 livered, is invalid, not being a legal deed. 
 
 Q. For what contracts made by agents of the company 
 is a subscriber liable ? 
 
 A. For contracts either expressly authorized by him 
 or appropriate in order to carry out the purposes for 
 which the company was formed. Thus, in the celebrated 
 case af Dickenson v. Valpy, which was an action on a 
 bill of exchange, purporting to be drawn and accepted 
 by a mining company, wherein the plaintiff, an indorsee 
 for value, sought to charge the defendant, as a member 
 of that company, the Court of King's Bench held that, 
 assuming the defendant to be a member of that company, 
 it was incumbent on the defendant to prove that the di- 
 rectors of the company had authority to bind the other 
 
 4* 
 
74 PARTIES TO CONTRACTS. 
 
 members by drawing and accepting bills of exchange, 
 and that the plaintiff not having produced the deed of 
 co-partnership, nor given any evidence to show that it 
 was necessary for the purpose of carrying on the busi- 
 ness of a mining company, or that it was usual for them 
 to draw or accept bills of exchange, there was no evi- 
 dence of such authority to draw or accept them. 
 
 Q. What powers have directors of a company to bor- 
 row money ? 
 
 A. Unless it be part of the ordinary business of the 
 company, as it would be of a banking company, or ex- 
 press powers be given them by the deed, the directors 
 have no authority to pledge the credit of the share- 
 holders by borrowing money, even though it be neces- 
 sary to enable them to carry on the affairs of the 
 company. 
 
 Q. How is a joint stock company formed under the 
 Companies Acts, 1862 and 1867 ? 
 
 A. By. the Joint Stock Companies Acts, 1862 and 
 1867, any number of persons, not less than seven, may, 
 by using the modes prescribed by that statute, form 
 themselves into an incorporated company, so as to ob- 
 tain the advantages given them thereby. These modes 
 are, among other things, the registration, in an office 
 provided for that purpose, of a document called the 
 memorandum of association, which memorandum is to 
 declare the name of the company, its objects, capital, 
 number of shares into which its capital is divided, the 
 liability of its shareholders, whether limited or unlimited, 
 and the part of the United Kingdom in which its regis- 
 tered office is to be established. 
 
PARTIES TO CONTRACTS. 75 
 
 Q. What is the effect of more than twenty members 
 carrying on business in an unregistered company ? 
 
 A. Unless registered or authorized by private statute 
 or engaged in mining/5n the Stannaries, each of them 
 may be sued for the whole debts of the co-partnership 
 ■without joining any other member. 
 
 Q. How are contracts made on behalf of companies 
 under the above Acts ? 
 
 A. Under the Companies Act, 1867 (30 & 31 Vict, 
 c. 131, s. b7). 
 
 1. Any contract which, if made between private per- 
 sons, would be by law required to be in writing, and if 
 made according to English law to be under seal, may be 
 made on behalf of the company in writing under the 
 common seal of the company, and such contract may be 
 in the same manner varied or discharged. 
 
 2. Any contract which, if made between private per- 
 sons, would be by law required to be in writing and 
 signed by the parties to be charged therewith, may be 
 made on behalf of the company in writing, signed by 
 any person acting under the express or implied author- 
 ity of the company, and such contract may in the same 
 manner be varied or discharged. 
 
 3. Any contract which, if made between private per- 
 sons, would by law be valid,' although made by parol 
 only, and not reduced into writing, may be made by 
 parol on behalf of the company by any person acting 
 under the express or implied authority of the company, 
 and such contract may in the same way be varied or 
 discharged. 
 
 Q. How is payment enforced against a company ? 
 
76 PARTIES TO CONTRACTS. 
 
 A. Upon such contracts the company thus incorpor- 
 ated may sue and be sued like any other corporation. 
 If the company, on judgment being obtained against it, 
 does not pay or satisfy the judgment, and execution 
 issued thereon is unsatisfied in -whole or in part, the 
 company shall be deemed unable to pay its debts, and 
 proceedings may then be taken for winding up the com- 
 pany, as it is called. The result of these, as to the 
 liability of the existing shareholders, is that they shall, 
 upon the winding up, be liable to contribute to the assets 
 of the company, to an amount sufiBcient to pay its debts, 
 and the costs, charges and expenses of winding it up ; 
 but if the company is limited each shareholder will be 
 liable to contribute to the assets of the company to the 
 amount, if any, which may remain unpaid on the shares 
 held or the amount guaranteed by him. (Sects. 38, 90, 
 134.) Moreover, no person who has ceased to be a 
 shareholder for the period of one year prior to the com- 
 mencement of the winding up shall be liable to con- 
 tribute to those assets, nor shall any past member be 
 liable in respect of any debts of the company contracted 
 since he ceased to be a shareholder. (Sect. 38.) But 
 if the company being wound up be limited, no past or 
 present member can be made to contribute more than 
 the amount unpaid on his share, or the amount he has 
 guaranteed. 
 
 Q. Who are deemed to be members of the company? 
 
 A. Every person who has accepted any share in a 
 company registered under the Act, and whose name is 
 entered in the register of members, shall, for the pur- 
 poses of the Act, be deemed a member ; but the trans- 
 
CONTRACTS BY AGENTS. 77 
 
 feror shall be deemed to remain a holder of his share 
 until the name of the transferee is entered on the regis- 
 ter, and the title of every shareholder to his shares shall 
 be a certificate under the common seal of the company 
 specifying the shares held by him. Finally, the amount 
 of calls for the time being unpaid on his shares shall be 
 deemed a debt due from the shareholder to the company. 
 
 Q. When can contracts be entered into by agents ? 
 
 A. Generally speaking, whatever contract a man 
 may enter into in his own person, he may, if he think 
 fit, appoint an agent to enter into in his behalf. There 
 are, indeed, one or two exceptions to this rule which 
 arise out of the wording of certain Acts of Parliament, 
 requiring the intervention of the principal party himself 
 in certain contracts. There is, however, another exten- 
 sive and important exception to this rule, which takes 
 place when a man is himself an agent. He cannot, in 
 this instance, appoint an agent to transact the matters 
 entrusted to his own agency. The maxims of law, 
 therefore, are '■'■Delegatus non potest delegare" and 
 " Vicarius non habet vicarium," maxims which it is 
 obvious are necessary for the principal's protection, but 
 which it is clear cannot apply where you give your 
 agent power to appoint a deputy either expressly or by 
 implication. 
 
 Q. Under what four heads may the subject be con- 
 sidered ? 
 
 A. 1. Who may be an agent. 
 
 2. How an agent is appointed. 
 
 3. How far his contracts bind his principal. 
 
 4. How far the principal may be advantaged by them. 
 
78 CONTRACTS BY AGKNTS. 
 
 Q. Who may be an agent ? 
 
 A. It by no means follows that a person who is not 
 competent to contract himself is therefore not com- 
 petent to contract as agent for another ; thus, it has 
 been decided that an infant may be an agent or even a 
 married woman, though she could not have contracted 
 in her own right. 
 
 Q. Under the Statute of Frauds, can one party sign 
 as agent of the other ? 
 
 A. Although in general an auctioneer may be con- 
 sidered as the agent and witness of both parties (the 
 vendor and purchaser), yet when he elects, as he may 
 do, to sue himself as one of the contracting parties, the 
 agent who is to bind a defendant by his signature must 
 be some third person and not the other contracting 
 party upon the record. But in an action by an auc- 
 tioneer against a purchaser of goods sold by auction, 
 the entry made in the auctioneer's sale book, made by 
 the auctioneer's clerk, who was assisting at the sale, and 
 as each lot was knocked down named the purchaser 
 aloud, and on assent from him made an entry of the sale 
 to him, was held a sufficient memorandum within the 
 17th section of the Statute of Frauds. 
 
 Q. How may an agent be appointed ? 
 
 A. Whenever there is no particular rule of law or 
 special statutory provision pointing out a particular 
 mode of appointment, he may be appointed even by 
 bare words. But there are some cases in which the 
 common or statute law does require a particular mode 
 of appointment ; for instance, it is a rule of common 
 law that an agent who is to contract for his principal 
 
CONTRACTS BY AGENTS. 79 
 
 by deed must himself be appointed by deed. Again, a 
 corporation, as it can, generally speaking, do no act ex- 
 cept by deed, so it cannot, generally speaking, appoint 
 an agent in any other way. 
 
 Q. How must an agent be appointed under the Stat- 
 ute of Frauds ? 
 
 A. The 1st, 2d and 3d sections of the Statute of 
 Frauds require in express terms that the agent who is 
 to do any of the acts mentioned in those sections shall 
 be appointed by writing, whereas the 4th and 17th sec- 
 tions contain no such provision. The consequence, of 
 course, is that in cases within these latter sections the 
 agent's authority need not be in writing. 
 
 Q. What is the difference between a general and a 
 particular agent ? 
 
 A. A general agent is an agent entrusted with all his 
 principal's business in some specific line of some specific 
 kind. 
 
 A particular agent is an agent employed specially for 
 some special purpose. For instance, if I entrust an- 
 other with the sale of a particular horse, of which I am 
 desirous of disposing, he is a, particular agent to trans- 
 act that particular business. But if I appoint an agent 
 to sell all my horses, and consign horses to him from 
 time to time for sale, he is my general agent in that line 
 of business. Now, there is this important distinction 
 between contracts made by general and those made by 
 particular agents, viz., that if a particular agent exceed 
 his authority, his principal is not bound by what he 
 does; whereas, if a general agent exceed his authority, 
 his principal is bound, provided what he does is within 
 
80 CONTRACTS BY AGENTS. 
 
 the ordinary and usual scope of tlie business he is de- 
 puted to transact. 
 
 Q. How far is the principal bound by the acts of the 
 agent ? 
 
 A. So far as the agent's authority extends his prin- 
 cipal is bound by all acts done in pursuance of that au- 
 thority. But the cases in -which doubts and difficulties 
 arise are those in which the agent has gone beyond his 
 authority. 
 
 Q. Where the principal carried on the business in the 
 name of the agent, how far is he liable ? 
 
 A. He is bound by all such acts and contracts as are 
 incidental to the ordinary conduct of the business, and 
 this obligation cannot be restricted by any private ar- 
 rangement between them. 
 
 Q. What further rule is therS as to a general agent ? 
 
 A. That the authority of a general agent is, as far 
 as the public are concerned, measured by the extent of 
 his usual employment. Thus, where a man permits an- 
 other to act generally for him in any line of business, 
 he is bound by contracts made by that other in that 
 line of business ; although, in truth and in fact, the 
 person so acting may have a limited authority, or even 
 no authority at all. This is laid down by Lord Holt, 
 in homely but forcible language, in Shower, 95, where 
 it is thus reported : " Memorandum. — Upon evidence 
 in an assumpsit for wares sold, it was held by Holt, 0. 
 J., that if a man send his servant with ready money to 
 buy meat or other goods, and the servant buys upon 
 credit, the master is not chargeable. But if the serv- 
 ant usually buys upon tick, and the servant buys some 
 
CONTRACTS BY AGENTS. 81 
 
 ttings without the master's order, yet, if the master 
 ■were trusted by the trader, the master is chargeable." 
 
 Q. What is the liability of provisional committeemen, 
 or the directors or chairman of a proposed company, 
 for the contracts of other committeemen or the secre- 
 tary ? 
 
 A. Where they give each other, or a secretary, or an 
 original promoter, apparently the power to bind them, 
 they will be liable upon contracts made by him in their 
 names, although they expressly prohibit him so to do ; 
 or though there may be a private arrangement between 
 them that he and not they are to be liable. Provisional 
 directors of a pi'ojected joint stock company, who were 
 induced to become such by the representations of the 
 nominal secretary (the getter-up of the company) that 
 he would pay the preliminary expenses, and that they 
 should not be liable, passed a resolution, inter alia, that 
 the company should be advertised. The secretary 
 agreed with the plaintiff for advertising the company, 
 showing him the resolution of the directors, but not in- 
 forming him of the above understanding with the di- 
 rectors. The latter were held liable to the plaintiff for 
 the advertisements. 
 
 Q. Is the principal bound on a contract made by an 
 agent according to usage ? 
 
 A. "I consider it to be clear law," said Mr. Baron 
 Parke, in the subsequent case oi Bayliffe v. Butterworth, 
 " that if there is at a particular place an established usage 
 in the manner of dealing and making contracts, a per- 
 son who is employed to deal or make contracts there 
 has an implied authority to act in the usual way, and if 
 
82 CONTRACTS BY AGENTS. 
 
 it be the usage that he should make the contract in his 
 own name, he has authority to do so." 
 
 Q. Can a master of a ship in a foreign port bind his 
 owners to carry goods? 
 
 A. When a master contracts as such in a foreign port 
 to carry goods for a foreigner, his authority to bind his 
 owner is that conferred by the law of the country to 
 which his ship belongs ; and the flag of his ship is notice 
 to all the world that his implied authority is limited by 
 the law of that flag. 
 
 Q. When is an agency implied ? 
 
 A. It is implied from the position or capacity in which 
 a person acts ; of this description is the agency of fac- 
 tors, brokers, of partners, wives and servants, all of whom 
 have an implied or constructive authority to bind those 
 for whom they act, or are held to act. The usages of 
 trades form material points in determining the authority 
 of an agent ; and the custom of an individual as to the 
 general mode and scope of his dealings with tradesmen 
 would, as we have seen, limit the implied authority of 
 his servants to bind him by their orders. Wherever acts 
 are done inconsistently with express directions, or with 
 the customary transactions from which agency may be 
 implied, there is an excess of authority, and the princi- 
 pal is not bound. 
 
 Q. What effect has the subsequent ratification of an 
 agent's acts ? 
 
 A. The subsequent ratification is equivalent to a prior 
 command, and the great maxim of agency, '■'■Qui facit 
 per alium facit per se," has a retrospective efiiect. And 
 such ratification may be inferred from the conduct of the 
 
CONTRACTS BY AGENTS. 83 
 
 principal, as well as expressed by him in words. It is - 
 held that the principal cannot ratify a part of the trans- 
 action and repudiate the rest, but must adopt the whole 
 or none. ( Wilson v. Poulter, 2 Str. 859 ; Brewer v. 
 Sparrow, 7 B. & 0. 310.) 
 
 Q. What is the effect of the person contracting having 
 notice that the agent is exceeding his authority ? 
 
 A. Wherever the person who contracts with an agent 
 knows that the agent's authority is limited, and never- 
 theless contracts with him beyond those limits, he does 
 so at his peril, for the principal is not bound. {True- 
 man V. Loder, 11 A. & E. 589.) And on this account 
 it is wise and usual for persons who have been in the 
 habit of employing a general agent, and are desirous of 
 discontinuing him, to give notice to the world of their 
 intention in the Gazette, and to those persons with whom 
 they are in the habit of dealing, by circulars. (See 
 Smith's Merc. Law, 9th edit., p. 122.) 
 
 LECTURE X. 
 
 PRINCIPAL AND AGENT, THEIR RESPECTIVE LIABILITIES 
 
 AGENCY OF BROKERS, FACTORS, PARTNERS, WIVES 
 
 — RECAPITULATION REMEDIES BY ACTION — STAT- 
 UTES OF LIMITATION. 
 
 Q. Where the agent contracts as principal, what are 
 the rights of , the latter ? 
 
 A. In such a case the principal may adopt and en- 
 force the contract, but his right to do so is subject to a 
 
84 CONTRACTS BY AGENTS. 
 
 qualification which has been dictated by common sense 
 and public convenience ; namely, that, on declaring him- 
 self, he stands in the place of the agent who made it ; 
 so that the other contracting party enjoys the same right 
 against him as he would have enjoyed against the agent 
 who made it, had that agent really been the principal. 
 For instance, if I buy a parcel of goods from A., who 
 sells them to me in his own name, though he is really 
 only the factor of B., whose property the goods are, B. 
 may, if he think proper, declare himself the principal 
 and require me to pay the price to him ; but if the fac- 
 tor owed me money whiph I could have set off against 
 the price, had the factor sued me for it, I have the right 
 of setting it off against B. in like manner as I might have 
 done against the factor. 
 
 Q. What was the case of Warner v. M'-Kay ? 
 
 A. Here the defendants were aware that they were 
 dealing with an agent, a factor, but the latter was accus- 
 tomed to sell in his own name when he had any claim 
 against the owner of the goods for advances, and the 
 purchaser, in buying the goods in question, bond fide 
 believed that the factor sold them for the purpose of 
 satisfying such a claim ; it was decided that the purchaser 
 was entitled to set off the payments made by him to the 
 factor. 
 
 Q. What is the result when the principal allows the 
 agent to sell in his own name ? 
 
 A. Two consequences follow : first, that the defend- 
 ant may avail himself of all defences which would be 
 good against the agent, who is, by the supposition, the 
 plaintiff on the record {Cfibson v. Winter, 5 B. & Ad. 
 
CONTRACTS BY AGENTS. 85 
 
 96) ; secondly, that he may avail himself of those which 
 would be good against the principal, for whose sole use 
 the action has been brought. {May v. Taylor, 6 M. & 
 Gr. 261.) 
 
 Q. When the agent contracts in his own name, what 
 are the rights of the other contracting parties ? 
 
 A. "The law," says Lord Ellenborough, "has been 
 settled by a variety of cases, that an unknown principal, 
 when discovered, is liable on the contracts which his 
 agent makes for him." On the other hand, if the agent 
 contracts without naming any principal, he is himself the 
 person primd facie responsible ; and though the other 
 party may, ip most cases, elect to charge the employer 
 on discovering him, yet he need not do so, but may, if 
 he please, continue to look to the agent. He may also 
 elect to charge either the agent or his principal, where 
 the agent, at the time of making the contract, says that 
 he has a principal, but declines to say who that princi- 
 pal is. [Thompson v. Davenport, 9 B. & 0. 78.) It 
 is important to bear in mind the rule that this election 
 when once made is binding. This is the main point illus- 
 trated by the case of Patterson v. G-andasequi (15 East 
 tJ2). 
 
 Q. Is this right lost if he has debited the agent with 
 the amount ? 
 
 A. He may still afterwards recover the amount from 
 the real principal, subject, however, to this qualification, 
 that the state of the account between the principal and 
 the agent is not altered to the prejudice of the principal. 
 
 Q. What is the rule when a British merchant is buy- 
 ing for a foreigner ? 
 
86 CONTKACTS BY ASBNTS. 
 
 A. "According to the universal understanding of 
 merchants and all persons in trade, the credit is then 
 considered to be given to the British buyer and not to 
 the foreigner" ( Wilson v. Zulueta, 19 L. J. (Q. B.) 49) ; 
 although, of course, a contract may he made by the agent 
 so as to charge the foreigner, and not himself. {Maho- 
 ney v. KehulS, 23 L. J. (C. P.) 54.) 
 
 Q. If the principal has settled with the agent can the 
 former be sued ? 
 
 A. If the principal has paid the agent, under circum- 
 stances which would make it unjust for the purchaser to 
 treat him as still his debtor (see Heald v. Keriworthy, 
 10 Ex. 739), the latter will lose that right, since the 
 former would otherwise have to pay the amount twice 
 over. Still this modification is itself subject to a minor 
 one, namely, that the principal cannot, by prematurely 
 and improperly settling with his agent, deprive the other 
 contracting party of the right of election. 
 
 Q. Can the agent sue or be sued upon the contract ? 
 
 A. An agent making and signing a contract, as such, 
 would in general, in the absence of a custom to the con- 
 trary, not be liable or entitled to sue upon it. " Yet in 
 every contract, if the agent chooses to make himself a 
 contracting party, the other contracting party may either 
 sue the agent who has himself contracted, though on 
 behalf of another, or he may sue the principal who has 
 contracted through his agent ; and this, whether the 
 principal was known at the time or not, or whether it 
 was or was not known that he was a principal;" and as 
 in such a case the agent is liable, so also he has a right 
 to sue. 
 
CONTRACTS BY PARTNERS. 87 
 
 Q. What persons are liable as partners, and for what ? 
 
 A. However they may stipulate with each -other, all 
 who take a share in the profits (subject to the qualifica- 
 tions contained in 28 & 29 Vict. c. 86), and all who 
 allow themselves to be described and held out as part- 
 ners, are liable as such to those to whom they have so 
 held themselves out. Supposing the parties to have 
 become partners, the result is that each individual part- 
 ner constitutes the others his agents for the purpose of 
 entering into all contracts for him within the scope of 
 the partnership concern, and, consequently, that he is 
 liable to the performance of all such contracts in the 
 same manner as if entered into personally by himself. 
 
 Q. Mention one or two instances held not to be with- 
 in the scope of the partnership business. 
 
 A. It has been held that one partner has no implied 
 authority to bind his co-partner by a submission to arbi- 
 tration [Adams v. Banhart, 1 C. M. k R. 681), or by 
 a guaranty {Brettel v. Williams, 4 Exch. 623), respect- 
 ing the matters of the partnership ; for it is clear that 
 such a power does not arise out of the relation of part- 
 nership, and is not, therefore, to be inferred from it; 
 and where it is relied upon, it must, like every other 
 authority, be proved either by express evidence or by 
 such circumstances as lead to the presumption of such 
 an authority having been conferred. 
 
 Q. Can the liability of all the partners ever be rebutted ? 
 
 A. The liability arising from the naked fact of part- 
 nership is primd facie the evidence of all the partners, 
 and may be rebutted by direct evidence that credit was 
 not given to the partnership, but to an individual mem- 
 
88 CONTRACTS BY PARTNERS. 
 
 ber of it {Peacock v. Peacoclc, 2 Camp. 45). This doc- 
 trine is v'ery strongly corroborated by the case of Hol- 
 croft V. Hoggins, 2 C. B. 488. 
 
 Q. Must the cause of action arise during the part- 
 nership ? 
 
 A. It must be shown that the debt for which an ac- 
 tion is brought accrued during the time the party sued 
 ■was actually in partnership. He will be liable neither 
 for contracts made before he became a partner ( Vere v. 
 Ashhy, 10 B. & C. 288) nor after he ceases to be one 
 {Heath v. Sanson, 4 B. & Ad. 172), provided he gives 
 proper notice of his retirement {Parkins v. Carruthers, 
 3 Esp. 248). 
 
 Q. Is a dormant partner liable ? 
 
 A. It has long been held that dormant partners are 
 equally liable with ostensible partners upon all con- 
 tracts made for the firm during their partnership, on 
 the principle, not, perhaps, very satisfactory, that the 
 dormant partner, being entitled to share in all the 
 profits of the firm to which he belongs, ought also to 
 share in the liability, and that having a right moreover 
 to sue others on it, he ought not to be protected from 
 being sued on it by them, for " Qui sentit commodum 
 sentire debet et onus." 
 
 Q. Is a nominal partner liable ? 
 
 A. Nominal partners are as liable as dormant ones, 
 not because they are principals for whom others are 
 agents, but on the ground that credit has been given to 
 them. The jury must be satisfied that the plaintiff bond 
 fide believed that the partner sought to be charged was 
 really such. {Dickenson v. Valpy, 10 B. & C. 128.) 
 
CONTRACTS BY BROKERS. 89 
 
 Q. What notice is necessary of retirement from a 
 firm ? 
 
 A. A general notice is suflScient to discharge part- 
 ners who retire from firms as regards the world at large ; 
 but an express notice is requisite to discharge them as 
 regards previous customers. 
 
 Q. When can one partner bind another by accepting 
 a bill ? 
 
 A. Where bills are drawn by partners in trade, the 
 general authority implied by the custom of merchants 
 binds each partner ; but not so where the partnership 
 is not of a commercial nature, such as that of soliciters, 
 for instance, in which case it must be shbwn that the 
 party accepting or drawing had special authority to do 
 so, even where it is done in the name of the firm. 
 [Medley v. Bainhridge, 3 Q. B. 316.) Where one part- 
 ner signs for the firm, being authorized to do so, and 
 describes himself as signing for the firm, he is not sep- 
 arately liable, but the firm alone. {Ex 'parte BucMey, 
 in re Clarice, 14 M. & W. 469.) If he accepts, profess- 
 ing to have authority which he has not, a bill addressed 
 to the firm, he makes himself liable thereby. [Owen v. 
 Van Uster, 10 C. B. 318.) 
 Q. What is the diiference between factors and brokers ? 
 A. Factors are entrusted with the possession of the 
 property they are to dispose of; brokers are entrusted 
 with the disposal but not with the possession. The 
 latter, therefore, are mere middlemen between the two 
 parties contracting, and cannot sue in their own name 
 upon contracts made by them as brokers. Neither arc 
 they liable upon contracts so made, unless there be an 
 
 L. of Con, r- 
 
90 CONTRACTS BY BROKERS. 
 
 usage in the particular trade to make the broker, though 
 contracting as such, personally liable. And evidence 
 of such usage is admissible, even though the contract 
 for sale be in writing. The contract between the parties 
 employing the broker is the contract of employment, 
 and not the contract of sale, and the custom is attached 
 to the employment. 
 
 Q. What variation is there in the case of insurance 
 brokers ? 
 
 A. " According to the ordinary course of trade be- 
 tween the assured, the broker and the underwriter, the 
 assured do not, in the first instance, pay the premium to 
 the broker, nor does the latter pay it to the underwriter. 
 But as between the assured and the underwriter the 
 premiums are considered as paid. The underwriter, to 
 whom in most instances the assured are unknown, looks 
 to the broker for payment and he to the assured. The 
 latter pay the premiums to the broker only, and he is a 
 middleman between the assured and the underwriter ; 
 but he is not solely agent, he is a principal to receive 
 the money from the assured and to pay it to the under- 
 writer." 
 
 As to the mode in which, .in the event of a loss, the 
 payment is made to the assured, the brokers usually 
 settle and adjust the loss and receive the payment. It 
 is a frequent custom to make settlements on account, 
 there being, as we have seen, an account between the 
 broker and the underwriter ; and it is clear that if the 
 assured have known, or ought in the common course of 
 things to have known, of such a custom, they will be 
 bound by it, although money has not actually been paid 
 by the underwriter. 
 
CONTRACTS BY FACTOES. 91 
 
 Q. What is the effect of the first three Factors Acts ? 
 
 A. "First, where goods, or documents for the deliv- 
 ery of goods, are pledged as a security for present or 
 future advances, with the knowledge that they are not 
 the property of the factor, but without notice that he is 
 acting without authority, in such a case the pledgee 
 acquires an absolute lien. Secondly, where the goods 
 are pledged by a factor without notice to the pledgee 
 that they are the property of another, as a security for 
 a pre-existing debt, in that case the pledgee acquires the 
 same right the factor had. Thirdly, where a contract 
 to pledge is made in consideration of the delivery of 
 other goods or documents of title upon which the per- 
 sons delivering them up had a lien for a previous advance 
 (which is deemed to be a contract for a present advance), 
 in that case the pledgee acquires an absolute lien to the 
 extent of the value of the goods given up." It is to be 
 observed that the persons whose dealings with property 
 or documents in their possession are within the pro- 
 tection of these earlier statutes are persons entrusted 
 therewith as factors or agents. {Jenkyns v. Usborne, 1 
 M. & Gr. 678.) 
 
 Q. Under these Acts the secret revocation of the 
 agent's power defeated the rights of a bond fide pledger ; 
 how has this been altered ? 
 
 A. The Stat. 40 & 41 Vict. c. 39, s. 2, enacts that 
 " where any agent or person has been entrusted with 
 and continues in the possession of any goods or docu- 
 ments of title to goods, within the meaning of the prin- 
 cipal Act as amended by this Act, any revocation of his 
 entrustment or agency shall not prejudice or affect the 
 
92 CONTRACTS BY VENDORS. 
 
 title or rights of any other person who, without notice 
 of revocation, purchases such goods or makes advances 
 upon the faith or security of such goods or documents." 
 
 Q. What alteration is made with respect to vendors 
 permitted to retain documents of title ? 
 
 A. " Any sale, pledge or other disposition of the 
 goods or documents made by such vendor, or any other 
 person or agent entrusted by the vendor with the goods 
 or documents, within the meaning of the principal Acts 
 as amended by this Act, so continuing or being in pos- 
 session, shall be as valid and effectual as if such vendor 
 or person were an agent or person entrusted by the 
 vendee with the goods or documents within the meaning 
 of the principal Acts as amended by this Act, provided 
 the person to whom the sale, pledge or other disposition 
 is made has not notice that the goods have been previ- 
 ously sold." 
 
 Q. What as to vendors permitted to have possession 
 of same ? 
 
 A. "Any such sale, &c., shall be as valid and effect- 
 ual as if such vendee or other person were an agent or 
 person entrusted by the vendor with the documents 
 within the meaning of the principal Acts as amended 
 by this Act, provided the person to whom the sale, 
 pledge or other disposition is made has not notice of 
 any lien or other right of the vendor in respect of the 
 goods." 
 
 Q. What effect now has the endorsement or transfer 
 of the documents of title to goods ? 
 
 A. By sect; 5, if by a former vendee or owner and to 
 a bond fide holder for value, it will defeat any vendor's 
 
CONTRACTS EY WiyES. 93 
 
 lien or right to stop in transitu in the same way as tlie 
 transfer of a bill of lading would. 
 
 Q. What is the right of stoppage in transitu ? 
 
 A. It is the right of the unpaid vendor of goods, after 
 delivery of them to a carrier in compliance with the sale, 
 on ascertaining the insolvency of the vendee, to stop or 
 countermand their delivery before arrival at their des- 
 tination. Endorsement of the bill of lading for value 
 stops this right. 
 
 Q. On what principle is it that a husband is liable on 
 his wife's contracts ? 
 
 A. On the ground that she entered into them as his 
 agent. Thus, when the plaintiif sold music to a married 
 woman living with her husband, and sued the husband 
 for the price, and the only question left to the jury was 
 whether the music was necessary for the wife in her sta- 
 tion ; this was held wrong, as the question ought to have 
 been, whether the wife had the husband's authority to 
 purchase. {Reid v. TeaUe, 22 L. J. (C. P.) 161.) 
 
 Q. When is the husband liable for necessaries supplied 
 to the wife ? 
 
 A. It is the cohabitation that is an evidence of the 
 husband's assent to contracts made by his wife for neces- 
 saries ; but this is subject to two qualifications : first, 
 that the contract must be for necessaries ; secondly, that 
 the party making it must not have been forbidden to 
 trust her. 
 
 Q. What were the cases of Seaton v. Benedict and 
 Montague v. Benedict ? 
 
 A. In Seaton v. Benedict it was sought to charge the 
 husband with a debt contracted by his wife for articles 
 
 5* 
 
94 CONTRACTS BY WIVES. 
 
 of millinery of a very expensive description. It ap- 
 peared at the trial that she was already supplied with 
 all necessary articles of dress. The court held, on mo- 
 tion for a new trial, that the defendant was, in point of 
 law, entitled to the verdict. 
 
 In Montague v. Benedict, the goods supplied were arti- 
 cles of jewelry, to the amount of 83?., which had been 
 delivered in the course of two months. The plaintiff 
 showed that the lady had a fortune of 4000?., the defend- 
 ant that she was already supplied with sufficient jewelry. 
 The jury gave a verdict for the plaintiff, but the court 
 set it aside on the ground that there was no evidence to 
 support it. 
 
 Q. What was decided in the case of Manhy v. Scott ? 
 
 A. The majority of the court were here of opinion 
 that the husband might prohibit a particular person from 
 trusting his wife, even for necessaries, and that if he 
 trusted" her in defiance of that prohibition he could not 
 hold the husband liable. 
 
 Q. How has this been enlarged by the recent case of 
 Jolly V. Rees ? 
 
 A. Here it was held " that the presumption which 
 exists during cohabitation, and from that circumstance 
 that the husband assents to contracts made by the wife 
 for necessaries suitable to his credit and degree, may he 
 rebutted by showing that he has forbidden his wife to 
 pledge his credit, although no notice of that fact has been 
 communicated to the tradesman. 
 
 Q. When is the husband liable if his wife is living 
 apart from him ? 
 
 A. If the husband drive his wife from home, or if he 
 
CONTRACTS BY WIVES. 95 
 
 do so misconduct himself ttat it is morally impossible 
 and unreasonable that she should continue to reside in 
 his house, he sends her into the world with authority to 
 pledge his credit for her necessary expenses. And this 
 authority he cannot revoke or control by any notice or 
 prohibition whatever. In Tike r&anner, if the husband 
 and wife mutually consent to live apart, she has a right 
 to bind him by contracting for her reasonable and neces- 
 sary expenses as long as the consent continues. 
 
 Q. How and when is he not liable in such case ? 
 
 A. If he allow and pay her a sufficient maintenance 
 the authority is gone, and her contracts, even for neces- 
 saries, will not bind him ; the reason of which is that 
 the authority is given by law for the wife's protection, 
 to save her from distress occasioned by her husband's 
 misconduct. But if he make her a proper allowance, 
 and pay it, there is no such danger, and then cessante 
 ratione eessat lex ; and even if she agree to accept an in- 
 adequate allowance as sufficient, so long as the husband 
 fulfills the terms on his part, he is not further liable 
 {Eastland v. Bardell, 47 L. J. 500). And if the wife 
 when living separate has a sufficient maintenance, thcTugh 
 not paid by her husband, supplies furnished to her can- 
 not be necessaries for which he is liable. 
 
 Q. In the recent case of Wilson v. Ford what were 
 held to be necessaries ? 
 
 A. The following legal expenses incurred by a de- 
 serted wife : (1) preliminary and incidental to a suit for 
 restitution of conjugal rights ; (2) in obtaining counsel's 
 opinion on the effect of an ante-nuptial agreement for a 
 settlement; (3) in obtaining professional advice as to 
 
96 CONTRACTS BY WIVES. 
 
 the proper mode of dealing with tradespeople who were 
 pressing her to pay them for necessaries supplied to her 
 since she had been deserted ; and also of preventing a 
 distress threatened on furniture belonging to her hus- 
 band in the house she occupied. 
 
 Q. What was held iii the case of BazeUy v. Forder ? 
 
 A. That a wife living separate from her husband for 
 justifiable reasons, the maintenance of her child under 
 seven years of age in her custody, pursuant to an order 
 obtained under 2 & 3 Vict. c. 54,, was part of her rea- 
 sonable expenses, for which she had authority to pledge 
 her husband's credit. 
 
 Q. How may the cases on this branch of the law be 
 summed up ? 
 
 A. That while a wife continues to live with her hus- 
 band the presumption is that she has authority to bind 
 him by contracting for necessaries, but that presump- 
 tion is subject to be rebutted. When she is living sep- 
 arately from him the presumption is that she has no 
 such authority ; but that presumption is subject to be 
 rebutted, by showing that the separation was by con- 
 sent, or occasioned by her husband's misconduct; in 
 which case, if he leaves her without adequate funds for 
 her support, she has a right to pledge his credit by con- 
 tracting for necessaries. 
 
 Q. What is the remedy on a contract by record ? 
 
 A. By writ of scire facias, which lies only upon a 
 record. But in the cases in which, by reason of lapse 
 of time or change of parties since a judgment had been 
 obtained, the proceeding was formerly by sci. fa., the 
 parties may now have the same benefit by a suggestion 
 
LIMITATION. 97 
 
 entered by leave of the court upon tlie roll, or by a 
 writ of revivor. This is by the Common Law Proced- 
 ure Act, 1852. If the record create a debt, an action 
 may be brought upon it. 
 
 Q. When did the actions of debt, covenant and as- 
 sumpsit lie ? 
 
 A. The action of debt lay in every case where there 
 was a liquidated pecuniary duty from one person to an- 
 other ; if the contract were by deed, an action of cove- 
 nant would also lie to enforce it; and if it were by 
 simple contract, the action of assumpsit. 
 
 Q. What is the policy of the Statute of Limitations ? 
 
 A. There would be the greatest hardship in calling 
 upon a man, after the lapse of an indefinite space of 
 time, to defend himself against a stale demand ; but 
 there is no great hardship imposed on the obligee by 
 requiring him to enforce his claim within a reasonable 
 time if he intend to enforce it at all. 
 
 Q. Within what time must a record be enforced ? 
 
 A. By 3 & 4 Will. 4, c. 42, a scire facias on a re- 
 cognizance must be sued out within twenty years. 
 After the recovery of a judgment, and during the lives 
 of the parties to it, execution may issue within six 
 years, without reviving the judgment. (15 & 16 Vict. 
 c. 76, s. 128.) Afterwards, the judgment may be re- 
 vived, by writ of revivor (sect. 129). This writ, if the 
 judgment be less than ten years old, does not need any 
 rule or order to authorize its issue ; but, if the judgment 
 be more than ten years old, a rule of court or judge's 
 order is necessary ; and if more than fifteen years old, a 
 rule to show cause. 
 
98 LIMITATION. 
 
 Q. Within what time must an action of debt or cove- 
 nant be brought ? 
 
 A. Within twenty years after the cause of such ac- 
 tions or suits, but not after. (3 & 4 Will. 4, c. 42, 
 s. 3.) 
 
 Q. What exceptions are there to this rule ? 
 
 A. In the first place, by the 4th section of the Act, 
 as amended by 19 & 20 Vict. c. 97 (Mercantile Law 
 Amendment Act, 1856), s. 10, if the person entitled to 
 bring the action be an infant, a married woman, or an 
 insane person, the time runs not from the accrual of the 
 right of action, but from the removal from disability, as 
 it is called. In the second place, if the defendant be 
 beyond seas, the time runs from his return : that is also 
 by the Act of 3 & 4 Will. 4. In the case of joint debt- 
 ors, the fact of one or more being beyond seas at the 
 time of the accrual of the cause of action is no longer a 
 bar to the period beginning to run as to joint debtors in 
 the kingdom at that time. In the third place, if an 
 acknowledgment of the liability be given in writing 
 signed by the person liable or his agent, the time runs 
 from the date of that acknowledgment. This is by sect. 
 5 of 3 & 4 Will. 4, c. 42. 
 
 Q. Within what time must actions on simple contracts 
 be brought ? 
 
 A. By the stat. of James I. within six years, except 
 in cases of disability, i. e., plaintiff being an infant, 
 married, insane, imprisoned or beyond seas at the time 
 of the accruing of the right, and when within six years 
 from the removal of the disability. By 19 & 20 Vict, 
 c. 97, s. 10, the exceptions of imprisonment and being 
 
LIMITATION. 99 
 
 beyond seas are abolished ; similar disabilities in case of 
 a defendant are his being outlawed or beyond seas. 
 
 Q. What promise is necessary to revive a statute 
 barred debt ? 
 
 A. By 9 Geo. 4, c. 14, the acknowledgment must be 
 in writing, "signed by the party chargeable." 
 
 Q. How is the law as to an acknowledgment laid 
 down in Tanner v. Smart ? 
 
 A. The only principle upon which it (an acknowledg- 
 ment) can be held to be an answer to the statute is this, 
 that an acknowledgment is evidence of a new promise, 
 and as such constitutes a new cause of action, and sup- 
 ports and establishes the promise which the declaration 
 states. Upon this principle, whenever the acknowledg- 
 ment supports any of the promises in the declaration, 
 the plaintiff succeeds ; when it does not support them, 
 though it may show clearly that the debt has never been 
 paid, but is still a subsisting debt, the plaintiif fails. 
 
 Q. Must the writing contain an unqualified promise 
 to pay ? 
 
 A. According to the doctrine now adopted from 
 Tanner v. Smart, any conditional promise defeats the 
 acknowledgment ; so that, however strongly the debt 
 may be admitted, unless there be a promise to pay it, 
 express or implied, it cannot be enforced. Lord Ten- 
 terden said, in Tanner v. Smart, " Upon a general 
 acknowledgment, where notldng is said to prevent it, a 
 promise to pay may and ought to be implied, but when 
 this party guards his acknowledgment and accompanies 
 it with an express declaration to prevent any such 
 
100 LIMITATION. 
 
 implication, why sball not the rule ' Uxpressum facit 
 cessare taciturn' prevail ?" 
 
 It is not sufficient that the document contains a 
 promise by the defendant to pay when he is able, or hy 
 hill, or a mere expectation that he shall pay at some 
 future time : it should contain either an unqualified 
 promise to pay, that is, a promise to pay on request, or, 
 if it be a conditional promise, the performance of the 
 condition should be shown. 
 
 Q. What is the effect of an offer without prejudice ? 
 
 A. It appears to me, not on the grounds of bad faith, 
 but on the construction of the document, that when a 
 man says in his letter it is to be without prejudice, he 
 cannot be held to have entered into any contract if, by 
 it, the offer contained in it is not accepted. 
 
 Q. In what three ways can Lord Tenterden's Act be 
 satisfied by writing duly signed ? 
 
 A. " Either there must be an acknowledgment of the 
 debt from which a promise to pay is to be implied ; or, 
 secondly, there must be an unconditional promise to 
 pay the debt ; or, thirdly, there must be a conditional 
 promise to pay the debt, and evidence that the condition 
 has been performed." 
 
 Q. Is the signature of an agent now sufficient ? 
 
 A. The signature of an agent is now sufficient by 19 
 & 20 Vict. c. 97, s. 13. 
 
 Q. Will part payment by one contractter bind another ? 
 
 A. Formerly it did ; but it has now been enacted that 
 for the future part payment by one shall not deprive 
 another of the benefit of the enactments of the Statute 
 of Limitations (19 & 20 Vict. c. 97, s. 14). 
 
CONSTRUCTION. 101 
 
 Q. Is actual payment necessary in every case ? 
 
 A. It is not essential that money or a bill should 
 actually pass ; for the statement of a mutual settlement 
 of account between the parties is equivalent to a pay- 
 ment, if the party to whom the debt is owing agree that 
 it shall be paid by the setting off of the same amount, 
 so that the sum set off is evidence of payment, if the 
 party against whom it is set off did not object to it when 
 his account was settled. {Scholey v. Walton, 12 M. & 
 W. 510.) 
 
 Q. Must there be a definite appropriation by the 
 debtor at the time of payment ? 
 
 A. If the payment of a sum of money is proved as 
 a fact, and not by a mere admission, there is nothing 
 which requires the appropriation to a particular account 
 to be proved by an express declaration of the party 
 making it at the time; such appropriation may be 
 shown by any medium of proof. 
 
 Q. By whom must contracts be construed ? 
 
 A. The construction of all written instruments be- 
 longs to the court alone, whose duty it is to construe all 
 such instruments, as soon as the true meaning of the 
 words in which they are couched, and the surrounding 
 circumstances, if any, have been ascertained as facts by 
 the jury ; and it is the duty of the jury to take the 
 construction from the court, either absolutely, if there 
 be no words to be construed as words of art or phrases 
 of commerce, and no surrounding circumstances to be 
 ascertained ; or conditionally, when those words or 
 circumstances are necessarily referred to them. 
 
 L. of Con, 6 
 
102 CONSTRUCTION. 
 
 Q. Are specialty and simple contracts construed the 
 same, and does the same rule apply to all contracts ? 
 
 A. The same sense is to be put upon the words of 
 a contra,ct in an instrument under seal as would be put 
 upon the same words in any instrument not under seal ; 
 and the rule of construction must be the same, whether 
 in a civil or a criminal court, or whether in a court of 
 law or equity. 
 
 Q. What is the first rule of construction ? 
 
 A. In the first place, it is the most important of all 
 the rules of construction that the whole of the agree- 
 ment is to be considered. The case of Monypenny v. 
 Monypenny (28 L. J. (Ch.) 303 ; 31 L. J. (Ch.) 269), 
 decided by Lord Chancellor Chelmsford, contains one 
 of the most luminous judgments to be found in the 
 books on this most important rule, and deserves so much 
 attention that we have stated it at some length. Phil- 
 lips Monypenny vested a term of 100 years in trustees 
 for the better security of the payment of the rent- 
 charges, being his wife's jointure. Phillips Monypenny 
 died in 1841. After his death it was discovered that 
 of the principal part of the property charged with the 
 annuity, Phillips Monypenny was only tenant for life, 
 and on his death it became another's. As the charge 
 upon the land of which he was such tenant ceased, it 
 became material to inquire whether there was any cove- 
 nant in the deed to bind his personal representatives. 
 One of the Vice-Chancellors, assisted by two of the 
 common law judges, decided that there was no such 
 covenant, and the case was reconsidered on appeal by 
 Lord Chancellor Chelmsford, and reversed on the ground 
 
CONSTRUCTION. 103 
 
 that a covenant was expressly created by the language 
 of the parties, the words used on the creation of the 
 power of distress being "covenants," grants and agrees 
 that it shall be lawful when the rent-charge is in arrear 
 for the grantee to distrain on the premises." 
 
 Q. How has the rule been further illustrated by the 
 case of Piggott v. Stratton ? 
 
 A. In 1845 Sir R. Simeon demised to Mr. Stratton 
 three pieces of land marked A., B. and C, Stratton 
 covenanting not to build on the piece marked C, except 
 in a certain manner, which would leave intervals giving 
 a sea-view to houses built on the piece marked B. 
 Stratton granted an underlease of part of B. to one 
 Harbour, and by the underlease covenanted to observe 
 his own covenants in the original lease, and effectually 
 to indemnify the underlessee, his executors, administra- 
 tors and assigns, therefrom. Harbour sold and assigned 
 his underlease to the plaintiff. Stratton afterwards 
 surrendered the original lease, obtained another not 
 containing the restrictive covenants, and proceeded to 
 build on C. in a manner which would exclude the 
 houses on B. from the sea-view. The Lord Chancellor 
 Campbell, sitting in the full Court of Appeal, decided 
 that the full covenants in the underlease to observe 
 those in the original lease had the same effect as if 
 they had been repeated in the underlease, notwith- 
 standing that the lease was surrendered ; and an in- 
 junction was granted to prevent Stratton from violating 
 them. {Piggott v. Stratton, 29 L. J. (Ch.) 1.) 
 
 Q. What is the effect of general words in a contract ? 
 A. An important instance of the rule which we have 
 
104 CONSTKUCTION. 
 
 been considering is that where general words follow 
 others of more particular meaning, that they are to be 
 _ construed as applicable to things ejusdem generis with 
 the former particular words. {Oullen v. Butler, 5 M. 
 & S. 461.). 
 
 Q. What points are material to consider in the con- 
 tract ? 
 
 A. It is obvious that if the whole of the agreement is 
 to be considered, the place where it was made (see Pust 
 V. Dowie, 33 L. J. (Q. B.) 172), the time when, the ob- 
 jects of the parties, and the department of science or 
 art, trade or commerce, to which the subject-matter of 
 it belongs, must be_ regarded; for otherwise the mean- 
 ing of words which have peculiar acceptations at differ- 
 ent times and places, and in relation to different subject- 
 matters, cannot be accurately understood. But bearing 
 in mind these observations as to the peculiar meaning 
 which words sometimes bear, and to the context of the 
 whole contract, the usual and proper mode of under- 
 standing words is according to their ordinary sense and 
 meaning. 
 
 Q. What is the legal maxim on this point ? 
 
 A. The rule of understanding the words and sentences 
 in their ordinary meaning, when it is not restrained by 
 the context, is perfectly consistent with the rule that the 
 whole context is to be considered, which is, indeed, the 
 just rule of interpretation, and is very conveniently 
 couched in the ancient maxim of the law. Ex antece- 
 dentihus et consequentibus fit optima interpretatio. (1 
 Shep. Touch. 87 ; Ooles v. Bulme, 8 B. & C. 568.)