J J J J J Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 in riEnoRY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 1554.P73 A summary of the principles of the law p 3 1924 021 859 107 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 924021 8591 07 & $MWWX% PRINCIPLES OF THE LAW SIMPLE CONTRACTS. I BY CLAUDE C. M. PJLUMPTRE, OF THE MIDDLE TEMPLE, ESQ., BAEEISTEK-AT-LAW. (Middle Temple Common Law Scholar, Eilary Term, 1877.) LONDON: BTJTTEEWOETHS, 7, FLEET STEEET, %8tn ^afiUa^cts to fl)e figueen's most excellent J8ta{estt>. DUBLIN: HODGES, FOSTEE & CO. EDINBURGH: T. & T. CLAEK; BELL & BEADFUTE. CALCUTTA : THACKEE, SPINK & CO. MELBOUENE : GEO. EOBEETSON. 1879. LONDON : FEINTED BY 0. F. KOWOETH, BBEAJl's BinLDtNOS, CHANCEEY LANE, E.O. PREFACE. It may cause some little surprise when it is seen that, notwithstanding the many able works on the Law of Contracts that have been published, I have ventured to add yet another volume to that already formidable array of legal literature. The reason why I have done so is, because this branch of the Law, however diversely treated, still remains unreduced, whether by means of Articles and Notes, or Eules and Sub- rules, or otherwise, into the form of a Concise Sum- mary or Digest; and in the present work I have hoped, to a certain extent, to supply the want thus existing. This mode of writing Law Books has lately be- come very popular, and meets, I believe, with con- siderable success. To Sir Fitzjames Stephen we are already indebted for two admirable Digests on the Criminal Law and the Law of Evidence, while to Mr. Underbill we owe a Summary of the Law of Torts, and a recent very excellent little work, entitled " A Concise Manual relating to Private Trusts and a2 IV PEEFACE. Trustees." In addition to these, I ought to mention Mr. Vaughan Hawkins' treatise on "Wills, Mr. Pol- lock's work on Partnership, and Mr. Farwell's on Powers. That works like these tend to lessen the difficulties experienced in mastering and comprehending the study of the Law must, I think, on all hands, he admitted ; hut in the case of foreigners — Students coming, as so many do now, from India, Japan, the Cape, and other distant parts, and who have to con- tend against the very serious ohstacle of learning a science in a language foreign to their own — their use is rendered highly valuahle. The Student can there read in one short Pule, clearly and concisely stated, followed hy carefully chosen cases to illustrate it and to impress it on his memory, and, not unfrequently, further explained by means of a Note or Sub-rule, what in other works, differently arranged, he finds extended perhaps over some dozen pages. Having thus read and learnt the Pule, and seen its applica- tion by the cases inserted to exemplify it, he is in a position to increase that knowledge hy the perusal of larger and more exhaustive treatises. But, beyond this, they serve another objeot which is important, and should not be lost sight of. They accustom the Student to method, and teaoh him to PREFACE. V arrange his learning in his mind somewhat as he read it arranged in the page before him ; so that, instead of possessing a multitude of confused facts, which can he hut of little good to him, he always has them at hand logically and well adjusted, properly connected, and ready for use when required. The only objection of which I am aware that has been raised against thus summarizing the Law is, that it encourages what is called the system of cramming — a method of learning in every way dan- gerous, and to be deprecated. It will be found, how- ever, on looking a little more closely at the mode of arrangement adopted, what little truth lies in the accusation, and what slight ground for fear there is on that score. Were the Eules stated simply by themselves, they might, no doubt, be put to such a purpose ; but when they are followed by cases illus- trating and Notes or Sub-rules explaining them, the Student has every means at hand for procuring, not a mere superficial knowledge of his subject, but a real, comprehensive understanding, such as will serve him as a sure and trusty foundation for more ad- vanced reading. The present work, it will be seen, has been ar- ranged as nearly as possible after the manner of Mr. Underbill's "Summary of the Law of Torts" — a second VI PREFACE. edition of which has lately been published, and in which I have had the honour to assist. I have en- deavoured in the space of some 200 pages, and by means of short Rules and Sub-rules, to state what I trust will be found a fairly accurate summary of the leading principles relating to the Law of Simple Contracts. These Rules are followed by cases ex- pressly chosen for the purpose of illustrating them, and which, so long as they appeared to me likely to accomplish that end, I selected alike from the older, as well as the more recent, Reports. How far this little Book, full of imperfections as I feel it must needs be, will prove of service to the Student, remains to be seen. That its production has been attended with considerable difficulty will be well understood by those who have experienced the arduous task of summarizing " that codeless myriad of precedent, that wilderness of single instances" of which our Law is composed; but how greatly this difficulty has been lessened by the help that has been afforded me by the labours of others, they who read these pages, and notice the references given, will perceive. More particularly do I desire to acknow- ledge the assistance I have derived from Mr. Chitty's " Law of Contracts," and " The Principles of Contract," by Mr. Pollock ; and (in my search for cases) from such works as Mr. Roscoe's "Nisi PKEFACE. Vll Prius Evidence," and the exhaustive Digest of Mr. Fisher. I have, in conclusion, only to express my obliga- tion to Mr. G. A. Yennell, of the Middle Temple, and to my friend and pupil Mr. Syud Abdur Rahman, of the Inner Temple, for the valuable help they have rendered me. The many useful suggestions of the former gentleman, and the care and trouble bestowed by the latter in the arrangement of the succeeding List of Cases, makes it impossible for me to speak too highly of their kindness, or to thank them too heartily. CLAUDE C. M. PLUMPTKE. 5, Hake Couet, Temple. SUMMARY OF CONTENTS. PAGE Preface iii Introductory Chapter xxi PAET I. THE PARTIES TO A SIMPLE CONTRACT. CHAPTEE I. Infants CHAPTEE II. Married Women 16 Sect. I. Contracts before Marriage . . .16 II. Contracts during Marriage . . .19 CHAPTEE HI. Sect. I. Persons Non Compos Mentis II. Drunkards III. Persons under Duress IV. Convicts and Outlaws V. Bankrupts 31 35 36 36 39 CHAPTEE IV. Sect. I. Corporations ... . . 42 II. Agents 46 X SUMMARY OF CONTENTS. CHAPTEE V. PAGE Partners and Partnerships generally . . .60 PAET II. THE CONSTITUENT PARTS OF A SIMPLE CONTRACT AND ILLEGAL AND FRAUDULENT CONTRACTS. CHAPTEE I. The Consent of the Parties 73 CHAPTEE II. The Consideration 82 CHAPTEE III. The Promise 98 CHAPTEE IV. Contracts Illegal at Common Law . . . 104 CHAPTEE V. < i Contracts Illegal by Statute . . . .119 CHAPTEE VI. Fraudulent Contracts 136 SUMMARY OF CONTENTS. XI PAET III. THE FORMATION OF A SIMPLE CONTRACT^ ETC., ETC. OHAPTEE I. PAQE General Rule and Contracts coming under the 4th Section of the Statute of Frauds . . 143 CHAPTER II. contracts coming under the 1?th section of the Statute of Frauds and under the Statutes of Limitation, &c 156 CHAPTER III. The Statutes of Limitation and their Effect on Simple Contracts 166 CHAPTER IV. The Discharge of the Obligation imposed by a Simple Contract 175 Sect. I. Performance II. Mutual Agreement — Accord, and Satis- faction and Operation of Law CHAPTER V. Oral Evidence and Written Contracts— Damages — Contracts entered into Abroad . . .185 INDEX 195 TABLE OF CASES. A. PAGE Abbot v. Kendricks 187 Abney v. Crux 187 Adams v. Bankart 68 Aitoheson v. Dixon 17 Alderson v. Pope 65 Aldis v. Chapman 29 AUsop v. Wheatoroft .... 110 Anderson v. Radcliffe .... 114 Angell v. Duke 187 Appleby v. Johnson 76 v. Meyers 96 Armstrong v. Stokes .... 54 Arnold v. The Mayor of Poole 42 Atkinson v. Smith 178 Atwood v. Chichester 19 Ayerst v. Jenkins 116 B. Bailey v. Bidwell 86 Bainbridge v. Pickering . . 7 Baker v. Dening 147 v. Sampson 29 v. "White Ill Baldey v. Parker 159 Bankart v. Bowers 178 Barron v. Fitzgerald .... 56 Bartlett v. Vinor 119 Barwick v. English Joint Stock Co 138 Basselah v. Sterne 152 Batard v. Hawes 92 Bateman v. Pinder 174 Bates v. Cart 83 PAGE Batson v. Newman . . 125, 126 Batty v. MaoCundie 66 v. Marriott 124 Baumaun v. James 148 Baxendale v. London, Chat- ham & Dover R. Co. . . 193 Baxter v. Earl of Ports- mouth 32, 33 Baylis v. Att.-Gen 191 Beaumont v. Reeve .. 85, 93, 1 16 v. Brengeri. ... 132, 161 Beavan v. MacDonnell .... 34 Beer v. London and Paris Hotel 146 Beckham v. Drake 39 Bensley v. Bignold 120 Berry v. Alderman 86 Betts v. Kimpton 17 Beynon v. Jones 18 Bill v. Bament 148 Bird v. Boulter 48 v. Brown 92 Blackburn v. Smith 96 Blackett v. Royal Ex. Ass. Co 191 Blandy v. De Burgh .... 87 Blenkmsop v. Clayton .... 164 Bligh v. Brent 152 Bloxsome v. Williams .... 133 Boast v. Eirth 95 Boulton v. Prentice 28 Bourdin v. Greenwood 171 Bowlby v. Bell 157 Boydell v. Drummond .... 148 Bracegirdle v. Heald .... 154 Bradlaugh v. De Rin .... 194 Bradshaw v. Lane. & York. R. Co , 193 XIV TABLE OF CASES. PAGE Brady v. Todd 51 Bragshaw v. Eaton 7 Brashford v. Buckingham 22 Brennan v. Bolton 155 British Amer. Telegraph Co., The v. Coleon 78 Linen Co., The v. Drummond 194 Brittain v. Lloyd 100 Brooker v. Scott 6 Brown v. Byrne 189 v. Edgington .... 99 v. Kidger 67 v. Leonard 65 Bunnfl. Guy 108 Burghart v. Angerstein . . 6 Burn v. Bolton 172 Busk v. "Walsh 105 Byrkmyr v. Darnell 149 C. Calder «). Dohell 55 Callisher v. BischofEsheim 83 Caiman v. Bryce 117 Carrol v. Blencow 20 Carter v. "Williams 110 Catling v. King ' 146 Caton v. Caton 155 Catt v. Tourle 107, 110 Caudell v. Shaw 20 Central B. Co. of Vene- zuela v. Kisch 137 Chaplin «. Bogers 161 Chasemore v. Turner .... 171 Chopple v. Cooper 8 Church v. Imperial Gas Light Co 45 Clarke v. Cuckfield Union 46 ■ v. Boyston 188 Clay*. Yates 116 Clifford v. Laton 27 — • v. Watts 96 Clough v. L. N. B. Co. . . 137, 138 Clubb v. Hutson 113 Gobbe v. Becke 88 Coggs v. Bernard 84 Collen v. "Wright 66 Collins v. Blantern. . .. 103, 113 PAGE Cook j>. Lister 182 Cooke v. Clayworth 35 Coombes v. Green 178 Coombs v. Dibble 123 Cooper v. Hood 144 v. Lloyd 29 Cope v. Rowlands. . . . 104, 119 Copper Miners' Co., The v. Eox 45 Coppock v. Bower 113 Cornforth v. Smithard. . . : 170 Cory v. Cory 35 v. Thames Iron "Work Co 193 Cotterell v. Dutton 169 Cowan v. Milbourne 178 Coxhead v. Mullis 13 Cropper i'. Cook 189 Crosby v. "Wadsworth 153 Crossley v. Maycock 80 Cox v. Hickman 62 v. The Midland B. Co 51 Cumber v. "Wane 83, 182 Cundell v. Dawson 121 Curtis v. Pugh 162 v. Williamson .... 55 Cuthbert v. dimming 190 Cutter v. Powell 178 D. Dalby v. The India and London Life Assurance Co. 129, 130 Dale v. Hamilton .... 61, 155 Dalton v. Gib 7 Darby v. Boucher 4, 8 Dawes v. Peck 163 Deacon v. Gridley 82 De Hoghton v. Money .... 115 Dickenson v. Burrel 116 Diokinson v. Jardine .... 189 v. Valpy 64 Diggle i>. Higgs 124, 125 v. The London and Blackwall E. Co 42, 46 Dilk v. Keighly 4 Dixon v. Nuttal 176 Dobie v. Larkan 179 TABLE OF OASES. XV PAGE Donellan v. Read 154 Dowling v. Ford 172 Drew v. Long 18 Drury v. De Fontaine .... 132 Dugdale v. Lovering .... 99 Duke v. Andrews 75 Duncan v. Lowndes 68, 69 v. Topham 77, 78 Dunoraft v. Albreoht 152 Dunlop v. Higgins 77 v. Lambert 163 E. Earle v. Hopwood. . . . 113, 114 v. Oliver 103 East London Waterworks Co. v. Bailey 42 Eastland v. Burchell 27 Eastwood v. Kenyon . . 93, 151 Edan v. Dudfield 163 Eden v. Blake 187 Edge v. Stafford 152 Edmunds v. Bushell 50 Edwards v. Chapman .... 183 Elliott v. Richardson .... 113 Elmore i>. Stone 163 Emerson v. Heelis 159 Engel v. Fitch 193 Erskine v. Adeane 153 European Mail Co. i>. Royal Steam Co 177 Evans v. Edmunds 137 v. Powis 183 i>. Roberts 153 v. Roe 186 Everett v. Robertson 170 Fairley v. Fenton 55 Farebrother i>. Simmons 48, 148 Farrer v. Deflinne 70 Farrow v. Wilson 95 Fenn v. Harrison 49 Fennel v. Ridler 132 Fenton v. Holloway 36 PAGE Figes v. Cutler 144 Findon v. Parker 113 Fish v. Kelly 100 Fitch v. Sutton 183 Fitzgerald v. Fitzgerald . . 184 Fleet v. Murton 55 v. Perrins 17 Forbes v. Marshall 67 Ford. v. Cotesworth 179 v. Fothergill 7 «. Tiley 180 Foster 17. Bates 58 17. Dauber .... 181, 184 ■ -i7. Mackinnon .... 139 v. Redgrave 7 Fox «. Hanbury 68 Foxcroft 17. Lester 155 Franklin v. Miller 178 Freestone 17. Butcher 25 Frost 17. Knight 180 G. Gabriel v. Dresser 183 Gallway 17. Mathew 68 Garden 17. Bruce 168 Garland 17. Jacomb 67 George 47. Clagget 57 Gibson v. Holland 148, 194 Gilbert v. Sykes 115 Giles 17. Giles 178 Godfrey v. Turnbull 70 Godsall 17. Boldero 130 Godwin v. Francis 147 Goode 17. Harrison 11, 12 Goodhall 17. Lowndes .... 105 Gore 17. Gibson 35, 36 Gorrisen 17. Perrin 190 Goss 17. Lord Nugent. . 181, 188 Govier v. Hancock 29 Graham 47. Musson 147 Great Northern R. Co. 17. Witham .„ 81 Great Western R. Co. v. Redmayne 193 Grice 17. Kenwick 68 Griffith 17. Middleton .... 39 Grizewood v. Blane 125 XVI TABLE OF CASES. H. PAGE Hadley v. Baxendale .... 192 Half ord v. Kymer 129 Hall v. Flockton 183 v. Potter Ill v. Wright 177 Hampden v. Walsh 125, 126, 127 Hancocks v. La Blache . . 22 Hands v. Slaney 5 Hargreaves v. Parsons 151 Harman v. Reeve 157 Harms v. Parsons 108 Harris' case 77, 78 v. Huntback 151 v. Venables 83 v. Wall 11 Harrison v. Cage 151 v. Fane 5 Hart v. Alexander 7 v. Prater 5 v. Prendergast 170 v. Stephens 17 Harvey v. Grabham 181 v. Johnston 77 v. Towers 86 Hawes i>. Harness 136 Heard v. Stamford 18 Heffield. v. Meadows 150 Helps V: Winterbottom . . 167 Hender v. The Australian Steam Navigation Co. . . 44 Herbert v. Sayer 40 Hezeltine v. Siggers 157 Higgins v. Burton 52 v. Senior 56 Hfflv.Fox 125 v. Royds 89 Hilton v. Woods 115 Hinde v. Whitehouse .... 157 Hindley v. Marquis of Westmeath 29, 112 Hitchcock v. Coker 87 Hochster v. De la Tour . . 180 Hodgkinson v. Fletcher 27, 28 Hodgson v. Sydney 39 Holme v. G-uppy 177 v. Hammond .... 62, 64 Holmes v. Hoskins 162 v . Kerrison 176 Holt v. Ward 14, 81 PAGE Hood v. Barrington 147 Hooper v. Lusby 68 Hopkins v. Logan 102 Hornet. Midland B. Co... 193 Horner v. Graves 107 Horsey v. Graham 152 Houliston v. Smyth 29 Howard v. Howard 118 v. Steward 51 Howell v. Batt 88 v . Coupland 96 Howlett v. Hoswell 4 Humble v. Mitchel 157 Hunt v. Bate 91 v. Silk 96 Huntley v. Sanderson 167 Hutchinson v. Tajham . . 189 Hutley v. Hutley 114 Hutton v. Warren 188 Tmnan v. Stamp 152 J. Jackson v. Galloway 74 ■ v. Turquand 76 Jakeman v. Cook 41 Jenkins v. Hutchkinson . . 55 Jennings v. Brown 85 Johnson v. Gallagher .... 20 Johnston v. Pye 14 v. Sumner. . 27, 28, 29 Jones v. Byde 96 v. St. John's College 177 i\Waite 112 Jordon v. Norton 75 Josselyn v. Parson 110 Keate v. Temple 150 Babble, Ex parte 12 Keir v. Leeman 112 Kelner v. Baxter 55 Kennaway v. Treleavan . . 81 TABLE OF CASES. XVU PAGE Kennedy v. Brown 101 Kent v. Huskisaon 162 Ken-worthy v. Soholefield. . 157 Kershaw v. Ogden 160 King v. Gillet 181 Kirk v. Bluston 67 Kirkham v. Martyr 152 Knight v. Cambers 128 v . Crockf ord .... 147 Knowlman v. Bluett .... 154 L. Lamb v. Attenborough . . 52 Lambert v. Heath 97 Lampleigh v. Braithwate . . 89 LampreH v. Guardian of Billericay Union 46 Langworthy v. Rockmore 28 Lawrie v. Scholefield .... 150 Laythoarpu. Bryant ..81, 147 Leather Cloth Co. v. Lor- sont 109 Leather v. Simpson 137 Lee v. Griffin 157 v. "Wilmot 170 Leeds Banking Co. , In re . . 76 Leman v. Fletcher 101 Lewis v. Brass 78 v. Davison 106 v. Marshall 191 Leroux v. Brown 194 Lickbarrow v. Mason 50 Lillywhite v. Devereux . . 161 Lindus v. Bradwell 48 Liverpool Adelphi Loan Ass., The v. Fairhurst . . 30 Llewellyn v. Llewellyn . . 183 Lloyd v. Gilbert 194 London Chartered Bank of Australia, The v. Lem- priere 20 London Dock Co. v. Linnot 45 Longridge v. Dorville .... 183 Lovell v. Newton 22 Lowe v. Peers 110 Ludlow (Mayor of) v. Carl- ton 42 P. M. PAGE M'Kewan i>. Sanderson . . 113 M'Kinnell v.- Kobinson .. 118 McKay v. Rutherford 61 McManus v. Bark 82, 184 Maber v. Maber 172 MacAllen ». Churchill .... 98 Macdonald v. Ramsay ..37, 39 Mackay r. Commercial Bank of New Bruns- wick 138 Mallan». May 106, 108 Malpas v. London & South Western R. Co 187 Manby v. Scott 24 Marlow «. Pitfield 9 Marshall v. Green 153 v. Button 19 Marzeth v. Williams .... 99 v. Goodall 90 v. Johnson 152 Masters, In re 114 Matthews v. Baxter 35 Matthewson's case 20 Mechelen v. Wallace .... 152 Melhado v. Porto Alegre Ry. Co 100 Meyerhoff v. Frochlick . . 171 Milbourn v. Ewart 184 Mitchell. Reynolds.. 106, 107 Mizen v. Pick 28 Molton D. Camroux 34 Molwo, March & Co. v. The Court of Wards 62 Montacute «>. Maxwell .... 151 Montague v. Benedict .... 25 Moore v. Bushell 89 v. Garwood 96 Morgan v. Griffith . . 153, 187 v. Ravey 98 v. Rowlands .... 172 Mortimer v. Wright 8 Morton v. Lamb 178 v. Tibbet .... 160, 161 Mostyn r. Fabrigas 193 ■ r. Mostyn 101 Mounstephen v. Lakeman .'.149, 150 Mousdale v. Birchall .... 85 Moyce v. Newington 136 XV111 TABLE OF CASES. PAOB Muudy v. Jolliffe 155 Murray v. Mann 138 Myers v. Perigal 153 N. National Permanent Build- ing Society 9 Nelson v. Duncombe . . 31, 33 v. Stocker 14 Nerot v. Wallace 93 Nesham v. Selby 148 Newell v. Radford 147 Nicholson v. Bradfield Union 46 Noble v. "Ward 188 Norton v. Ellam 167, 176 .*. Powell 132 Nurse. v. Wills 24 0. Oldershaw v. King 83 Overton v. Banister 83 Pain i>. Coombs 155 Palford v. Richards 137 Paradine v. Jane 94 Parker v. Ibbetson 189 v. Winlow 55 Parkinson v. Collier 190 Parsons v. Alexander .... 125 Patent Paper Manufactur- ing Co., In re 76 Paterson v. Gandesequi . . 53 Paynter v. Williams 92 Peacock v. Monk 20 Pearce v. Brooks 117 Peate v. Dicken 132 Peirce v. Corf 148 Perry v. Jackson 68 Peters v. Compton 154 v. Fleming 4 Phelps v. Potheroe 57 Phillipson r. Hayter .... 25 PAGE Philliskirk r. Pluckwell 24, 86 Phosphate of Lime Co. v. Green 100 Pickering v. Gunning .... 6 Pinnel's case.. 83, 183 Pitt v. Smith 3G Pooley v. Driver 62, 64 Poplettv. Stockdale 116 Potter «'. Duffield 146 Poussard v. Spiers & Pond 177 Powell v. Hoyland 36 Price v. Green 98 v. Nixon 167 v. Seaman 85 Proctor v. Nicholson .... 135 v. Sargent , 108 Purdew v. Jackson 16 Pym*. Campbell 186 R. Radcliff e v. Anderson .... 113 Radford v. Smith 175 Randell v. Trimen 56 Rann ». Hughes ...,,,.. 148 Rawlyns v. Vandyke .... 28 Reed v. Moore , 29 Reese River Silver Mining Co. v. Smith 137 Reeves v. Hearne 103 Redhead v. Midland R. Co. 99 R. v. Stoke-upon-Trent . . 189 — v. Whitnash 131 Renause v. Teakle 26 Reuss v. Picksley 147 Reynolds v. Doyle 167 Richard v. Richard 17 Richardson v. Dubois 30 Richmond Hill Hotel Co., In re 76 Ridley v. Ridley 154 River SteamCo's. case, The 169 Roberts v. Bury Commis- sioners 177 Robertson v. Jackson 190 Robinson v. Davison . .95, 177 ■ e>. Rutter 58 Rodgers v. Hadley 136 Rodwell v. Phillips 153 Roger's case 76 TABLE OF CASES. XIX PAGE Roper.tf . Johnson 180 Eosoorla v. Thomas 102 Rosewarne t\ Billing .... 128 Rossiter.p. Miller 80, 146 Rothwell a. Humphreys . . 67 Rourke v. Short 124 Rumsey.tf. G-eorge 17 Ryan v. Sams 27 Ryder v. Wombwell 6 S. Sadler v. Leigh 58 Sainsbury v. Mathews .... 153 Sale v. Lambert 146 Saunders v. Topp 162 Saunderson .v. Jackson. . . . 147 v . Piper 191 Soarpellini v. Atcheson. . 16, 17 Schneider v. Heath ...... 140 v. Noi&jis .147 Scotland (Bank of) v.Addie 138 Serle v . Reeves, 164 Shackell v. Rosier 115 Shad-well v. Shadwell 90 Shakleford's case 76 Sharman v.. Brandt 48, 148 Shaw v. G-alt 62 Shelton v. Springett 8 Sheppard v. Union Bank of London 52 Sherrington v. Yates .... 24 Short v. Spackman 58 Sibree v. Tripp 182, 183 Simpson v. Bloss 105 v . Nicholls 133 Sims v. Bond' 57, 58 v. Brutton 172 Smith v. Battams 193 ■ v. Green 193 v. Hills 169 ■ v. Hughes 139 v. Hudson 162 v. Jeffrys 191 v. Marrable 100 v. Mawhood 121 v. Monteith 36 v. Neale 154 v. Surman 153 PAGE Smith v. Wilson 190 Smout v. Ilbery 55, 59 Smyth v. Anderson 54 Snee v. Prescott 58 Souch ii. Strawbridgo .... 154 Souter v. Drake 99 South of Ireland Coll. Co. v. "Waddle 43, 44 r 45 Southwell v. Bowditch .55 Soward v. Palmer 175 Spears v. Hartley 166 Spedding v. Nerell 193 Spicers v. Cooper T90 Sprye v. Parter 114 Spurr v. Cass ~57 Stafford (Mayor of) v. Till . . 45 Stanley v. Dowdeswell . . 76 Stead v. Salt 6S Stranks r. St. John 99 Streeter v. Horlock 99 Sumners v . City Bank 22 Surcombe v. Tinniger 155 Tallis v. TalKs 106 Taylor v. Ashton 137 i: Caldwell 95, 96 v. Chester 116 Tempest v. Pitzgerald 162 Temple v. Pink 83 Thiis v. Byers 94 Thomas t: Edwards 85, 87 Thompson v. Harvey .... 27 Thomson v. Davenport. .53, 54, 5.5 Thorn v. Mayor of London 94 Thornborrow v. Whitacre 94 Thornhill v. Neats ; 177, Thornton v. Illingworth . . 174 Thorpe v. Booth 170 Tilley v. Thomas 179 Tipper v. Bicknell 90 Tippetts v. Heane 172 Trimbey v. Vegnier 193 Trueman v. Loder .... 49, 59 Turner v. Hayden 176 Tweddle v. Atkinson . . 85, 87 Tyler v. Bennet 152 XX TABLE OF CASES. U. PAGE Union Joint Stock Mutual Banking Co,, In re .... 14 Vandenbergh p. Spooner . . 146 Varney 11. Hickman 125 Veitch v. Bussell 101 Vickers v. Hertz 52 W. Wain v. Warlters 148 Wainman v. Kynman 172 Wainwright v. Bland 129 Waite v. Jones 96 "Waithman v. Wakefield . . 26 Wake v. Hassop 56 Waldo v. Waldo 12 Walker v. Massey 164 v. Perkins 116 Wall's case 78 Wallis v. Littel 186 Ward v. Byrne 107 v. Hobbs 139 Warde v. Stewart 190 PAGE Washbourn v. Burrows . . 153 Watson v. Threlkeld .... 27 v. Spratley 157 Watts v. Friend 159 Waugh v. Carver 62 Wells v. Kingston-upon- Hull 153 Wentworth v. Tubb 31 Wheatley v. Williams 167 Wigglesworth. v. Dallison . 188 Wilkinson v. Byers 183 v. Evans 148 v. Oliveira .... 86 Williams v. Byrnes 147 - — — • v. Chambers .... 40 v. Harrison .... 4 v. Paul 133 Wills v. Stradling 155 Wilson v. Hatton 100 Wing v. Mill 92 Wittersheim v. Countess of Carlisle 167 Wright v. Fairfield 39 v. Leonard 30 11. Stavert 152 Y. Yates v. Pym 191 Young v. Axtell 65 INTRODUCTORY CHAPTER. Kinds of Contracts.— Contracts are divided into three classes, that is to say : — (1) Contracts of Record; (2) Contracts under Seal ; (3) Contracts not under Seal or Simple Contracts. Contracts of Eecord and Contracts under Seal will be found fully discussed in Mr. Cutty's Treatise on Contracts (p. 2 et seq.). In the present work it is purposed considering, and that necessarily in a very elementary manner, the law of Simple Contracts. Definition of a Simple Contract.— A Simple Contract may be defined as being a deliberate engagement between competent parties, upon a legal consideration to do, or to abstain from doing, some act. (See Story on Contracts, p. 1.) This definition, it will be seen, admits of being divided in the following manner : — ■ (1) The Parties to the Contract. XX11 INTRODUCTORY CHAPTER. (2) The Constituent Elements of the Contract, that is to say : — (a) The Consent of the Parties ; (b) The Consideration; (c) The Promise. (3) The Mode and Manner in which the Contract is to be Expressed. Executed and Executory Contracts. — An Executed Contract is one which is wholly performed by both parties (Broom, Com. 253 ; Story on Con. 14 ; 2 Steph. Com. 57). An Executory Contract is one in which neither the promise nor the consideration is performed. A contract may be also Partly Executed and Partly Executory, as where the consi- deration is performed, but the promise is not. " If A. and B. agree to exchange horses, and they do it immediately, here the possession and the right are transferred together," and the contract is exe- cuted ; hut " if they agree to exchange next week, here the right only vests, and their reciprocal pro- perty in each other's horse is not in possession, hut in action," and the contract is executory (Moz. Law Die. p. 147 ; 2 Bl. 443 ; 2 Steph. Com. 58). "While, if A. has already delivered his horse to B., and, in consideration of his having done so, B. promises to INTRODUCTORY CHAPTER. XXU1 send him his, then the contract is partly executed and partly executory. Express and Implied Contracts. — Where the agreement is formal and stated, either verbally or in writing, it is usually called an Express Contract ; where the agreement is matter of inference or deduction, it is called an Implied Contract. (See Story, p. 4.) PART I. i THE PARTIES TO A CONTRACT. Chapter I. — Infants. II. — Married "Women. III. — Persons non Compos Mentis — Drunkards — Convicts and Out- laws — and Bankrupts. IV. — Corporations — Agents. V. — Partners. p. PAET I. PARTIES TO A' CONTRACT. Rule I. — All persons are in law presumed to have capacity to contract; and it is for the person claiming exemption from per- forming his contract on the ground of in- capacity, to prove the existence thereof (see Chitty on Con. p. 132). Exceptions. — The following persons form the most im- portant exceptions to this rule, and labour under certain disabilities in contracting : — 1. Infants. 2. Married women.' 3. Persons non compos mentis. 4. Drunkards. 5. Convicts and Outlaws. 6. Bankrupts. Note. — Aliens. By the Naturalization Act, 1870 (33 Vict. c. 14), the disabilities to which aliens for- merly were subject have, it would seem, been prac- tically removed. (See sect. 2, and the remarks made thereon in Chitty on Cont. p. 179.) B^2 PARTIES TO A CONTRACT. CHAPTER I. On Contracts by Infants. Rule 2. — No contract, other than a con- tract for necessaries, is binding upon an infant (Co. Litt. 172a; 37 $■ 38 Vict. c. 62, s.l). Thus an infant cannot trade so as to render himself liable thereby {Bilk v. Keighly, 2 Esp. 480) ; nor can he bind himself by accepting, drawing, or indorsing a bill [Williams v. Harrison, Carfh. 160); nor by giving a warranty of goods sold by him [Hoiclett v. Haswell, 4 Camp. 118) ; nor by borrowing money [Darby v. Bouchier, 1 Salt 279 ; 37 Sf 38 Vict. c. 62, s. 1, seep. 10). What are Necessaries ? The expression "neces- saries " is not limited in law to those articles actually essential to the maintenance of life and health ; but icill include those which, taking into consideration " the degree, state, and station in life " of the infant, can reasonably be supposed necessary to enable him to sup- port the position he holds in society, provided he is not already amply supplied therewith. In Peters v. Fleming (6 M. Sf W. 42), Parke, B. thus enunciates the law on this subject : — " It is per- fectly clear that, from the earliest times down to the INFANTS. 5 present, the word ' necessaries ' was not confined to such articles as were necessary to the support of life, hut extended to articles fit to maintain the particular person in the state, station, and degree of life in which he is: and, therefore, we must^not take the word ' necessaries ' in its unqualified sense, but with the qualification above pointed out The true rule I take to be this, that all such articles as are purely ornamental are not ' necessaries,' and are to be rejected because they cannot be requisite for any one : and for such matters, therefore, an infant can- not be held responsible. But, if they are not strictly of this description, then the question arises, whether they were bought for the necessary use of the party, in order to support himself properly in the degree, state, and station of life in which be moved. If they were for such articles, the infant may be made responsible." The following examples will suffice to illustrate the above definition : — ,(1) A captain in the army, who was under age, was held liable for a livery supplied to his servant at his request ; but not for cockades for the soldiers of his company {Sands v. Slaney, 8 T. R. 578). (2) An apprentice to a chemist, who was entitled to property when of age, and who had nearly attained his majority, bought a horse. The jury found, on it appearing that the infant had been ordered horse exercise, that the horse was a necessary, and the court refused to set aside the verdict {Hart v. Prater, 1 Jurist, 623). (3) Dinners, confectionery, or fruit supplied to an (> PARTIES TO A CONTRACT. infant, an undergraduate in the university, having lodgings in the town, are not, primd facie, neces- saries ; and in an action brought against him for such articles, no special circumstances being shown, the court will direct a non-suit to be entered (Brooker v. Scott, 11 M. 8f W. 67). (4) In Harrison v. Fane (1 M. 8f Gr. 550), the defendant, who was an infant, and younger son of a gentleman possessed of a considerable amount of pro- perty, but who had a large family, "was sued for the hire of certain horses and gigs. It appeared that the defendant kept a horse, and sometimes hunted with his father. Held, that there was nothing in the case to render the hire of the horses or gigs a necessary. (5) A promise by a child, who was only fourteen years old, to pay a reasonable sum for his schooling, has been held binding upon him [Pickering v. Chin- ning, Sir W. Jones, 182). (6) A silver goblet for presentation to a friend, at whose house an infant was staying, is not a neces- sary {Ryder v. Wombwell, L. R., 4 Ex. 32). (7) A minor who had been supplied by one trades- man with ten coats, and immediately afterwards with another by the plaintiff, was held not to be bound to pay for such coat, as it was unnecessary. In such a case the infant may call evidence to show that he had all the clothes which were suitable to his degree and estate from other tailors (Burg hart v. Angerstein, 6 C. 8f P. 690). Until the recent case of Ryder v. Wombwell (L. R., 3 Ex. 90), it seems to have been fully settled that, where the infant was already sufficiently supplied INFANTS. 7 ■with the articles sold him, such articles could not be considered necessaries, although the tradesman was not aware of his being so supplied (Bainbridge v. Pickering, 2 W. Bl. 1325 ; Bragshaio v. Eaton, 7 Scott, 183; Dalton v. Gib, 7 Scott, 117; Ford v. Father gill, Pealce, 229 ; Foster v. Redgrave, L. B., 4 Ex. 35). In the above case, however, it was decided by the Court of Exchequer that, unless the plaintiff could be shown to have been aware of the fact, evi- dence was inadmissible to prove that the defendant was at the time provided with the articles supplied him. The judgment in this case was reversed in the Exchequer Chamber, but on another point; the judges, in respect to the present, contenting themselves by saying : " There is much to be urged in support of the view taken by the majority of the court below, and we desire not to be understood as either over- ruling it, or affirming that decision. If ever the' point again arises, the court before which it comes must determine it on the balance of authority and principle, without being fettered by a decision of this court." In the absence of any further authority to tie contrary, I have thought myself justified in stating the law as above. In this conclusion I am supported by Mr. Simpson in his valuable work, The Law of Infants, p. 89. Necessaries supplied to the Wife or Chil- dren of an Infant. Sub-rule 1. — An infant is liable jor necessaries supplied to his ivife, or to his lawful children, on his express or implied authority. (1) " If," it has been said, " a man under the age 8 PARTIES 10 A CONTRACT. of twenty-one contract for the nursing of his law- ful child, this contract is good, and shall not he avoided by infancy, no more than if he had con- tracted for his own aliments or erudition." (Bac. Max. reg. 18.) (2) So, an infant husband may bind himself by a contract for the burial of his wife, or the infant wife for the burial of her husband (Chappie v. Cooper, 13 M. fy W. 252). Where, however, a parent, whether an infant or otherwise, has not expressly or impliedly authorized his child to pledge his credit, he will not be liable even for necessaries supplied to such child (Morti- more v. Wright, 6 M '. 8f W. 482; Shelton v. Springett, 11 C. B. 452). Slight circumstances will raise a prima facie pre- sumption of authority to purchase necessaries ; as, that the goods were delivered at the father's house ; but the presumption is rebutted by showing that the father allowed his son sufficient money wherewith to procure such articles, or that he bad ordered them elsewhere (see Chitty, 147). Money lent to an Infant for the purpose of Paying for Necessaries. Sub-rule 2.— At common law money lent to an infant, even for the ex- press purpose of paying for necessaries, could not be recovered (Darby v. Boucher, 1 Salic. 279). In equity, hoivever, when there teas a loan to an infant, a%d the money was actually spent in paying creditors for neces- saries that had been supplied him, the lender might come into the court, and stand in the place of those INFANTS. 9 creditors whose debts had been so paid (Marlow v. Pit- field, 1 P. Wms. 558 ; In re National Permanent Benefit Building Society, 5 Ch. App. 313). Query, how this would be since the Infants' Re- lief Act. Functions of Judge and Jury. Sub-rule 3. — The question of necessaries, or not necessaries, is one of fact, and, therefore, for the jury. But like all other questions of fact should not be left to the jury, unless there is evidence on ichich they can reasonably find in the affirmative. " "We quite agree," remarks "Willes, J., " that the judges are not to determine facts, and, therefore, where evidence is given as to any fact, the jury must determine whether they believe it or not. But the judges do know, as much as juries, what is the moral and normal state of things. If a state of facts exist (as it well may) so new and so exceptional that the judges do not know of it, that may be proved as a fact : and then it will be for a jury, under a proper direction, to decide the case. But it seems to us,, that, if we were to say, that in every case the jury are to be at liberty to find anything to be necessary, on the ground that there may be some usage of society, not proved in evidence, and not known to the court, but which is suggested that the jury may,, know, we should, in effect, say that the question for the jury was whether it was shabby in the defendant to plead infancy. We think the judges must deter- mine whether the case is such as to cast on the plain- tiff the onus of proving that the articles are within 10 PARTIES TO A CONTRACT. the exception, and then whether there is any sufficient evidence to satisfy that onus" {Ryder v. Wombivell, L. R., 4 Ex. 40). Voidable Contracts. Rule 3. — Contracts which were beneficial to an infant (and, per- haps, those that were not, see Pollock on Con. p. 35) were formerly only voidable and not void. But by the Infants' Relief Act. (37 & 38 Vict. c. 62, s. 1), it is, in effect, enacted,, that all contracts, whether by specialty or by simple contract, entered into by infants for the repay- ment of money lent, or to be lent, or for goods supplied, or to be supplied (other than neces- saries), and all accounts stated with infants, shall be absolutely void: provided always, that that enactment shall not invalidate any contract which an infant may by any present (see, for example,- 18 & 19 Vict. c. 43) or future statute, or by common law or equity, enter into, except such as are now by law voidable. Ratification. — The effect of a contract heing void- able and not void was that the infant could, on attaining his majority, ratify it, and so render him- self liable thereon. This ratification might at com- mon law be inferred from any act done, or declaration made, by the quondam infant, provided such act or declaration amounted to a recognition of his liability INFANTS. 11 {Harris v. Wall, 1 Ex. 122) ; and in the case of con- tinuing contracts, such as partnership, it was held, that, unless within a reasonable time after attaining his majority, he did something clearly showing his intention to disaffirm such contract, he must he taken as having ratified it (Goode v. Harrison, 5 B. 8f Aid. 147). By Lord Tenterden's Act (9 Geo. 4, c. 14) it was provided that no action should he maintained whereby to charge any person, upon any promise made after full age to pay any debt contracted during infancy, or iipon any ratification of any simple contract made during that period, unless such promise or ratification was made in writing and signed by the party to be charged therewith ; and now by sect. 2 of the Infants' Belief Act it is enacted that — Sub-rule. — JYo 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. Effect of Infants' Relief Act.— The effect of sect. 2 of this act is to supersede the 5th section in Lord Tenterden's Act, and (instead of requiring a ratifica- tion in writing signed by the party to be charged therewith) to render void such ratification, however it may be made. But as Lord Tenterden's Act did not extend to continuing contracts, so the better opinion 12 PARTIES TO A CONTRACT. would seem to be that the Infante' Belief Act would not ; and that on such a contract a person may still render himself liable by not disaffirming for any breach thereof committed by him after attaining his majority (see remarks in Simpson on Infants, p. 18; and Chitty on Contracts, p. 151) . The following cases will suffice to illustrate this : — (1) A., an infant, employs B. as his servant. A.'s position is such that a servant cannot be considered a " necessary" for him. The servant continues in his employment without any fresh contract being made after A.'s infancy is terminated. Held, under Lord Tenterden's Act, and, it is submitted, would be so held under the one in discussion, that A. was liable for wages due to B. for services performed by him after A.'s majority, but not for those due in respect of services performed prior to that event (see Waldo v. Waldo, lF.fyF. 173). (2) For the same reason, it is presumed, that an infant partner, who neither affirms nor disaffirms the partnership, but who continues a partner therein, will be liable for debts incurred by his co-partner subsequent to his majority (Goode v. Harrison, sup.) Under this statute it has been decided — (1) That it is immaterial whether the contract was made before or after the passing of the act, so long as the ratification of such contract has taken place since the date of its operation (Ex parte Kibble, L. R., 10 Oh. App. 373). (2) That sect. 2 applies to promises of marriage (Coxhead v. Mullis, L. B., 3 C. P. D. 439). In that INFANTS. 13 case, decided as recently as December of last year, the facts were as follows : the defendant, during his infancy, promised to marry the plaintiff, and, after coming of age, recognized without expressly repeating the promise, and eventually broke it. The plaintiff sued for the breach and was nonsuited. Held, that the nonsuit was right, for, assuming that there was a ratification of the promise subsequent to his majority, the right of action upon such ratification was taken away by the above seotion, and that there was no evidence of any fresh promise made after the de- fendant came of age. " Before saying a word upon the question whether the act applies," observed Coleridge, C.J., " I may ob- serve that I am of opinion that, where there is a clear promise, such as was proved in this case, a promise to marry being in this respect like any other contract, ratification, if it exists, must have reference to the contract proved, and you cannot say, because there is a ratification from day to day, that there is a fresh promise from day to day. Evidence of ratification is one thing, evidence of a fresh promise is another." Rule 4. — A person of full age contracting with an infant is bound thereby, though the latter be not. " Infancy," it has been said by an old writer, " is a personal privilege of which no one can take ad- vantage but the infant himself; and, therefore, though the contract of the infant be voidable, yet it shall bind the person of full age : for being an indul- 14 PARTIES TO A CONTRACT. gence which the law allows infants to secure them from the fraud and imposition of others, it can only be intended for their benefit, and is not to be ex- tended to persons of the years of discretion, who are presumed to act with sufficient caution and security ; and, were it otherwise, this privilege, instead of being an advantage to the infant, would in many cases turn greatly to his detriment." Thus, A., a person of full age, agrees to marry B., an infant; on his failing to' do so, B. has a right of action for breach of contract against A. {Holt v. Ward, 2 Str. 937). Rule 5. — It has been held to be no answer to a plea of infancy to state that the defendant fraudulently misrepresented his age at the time of entering into the contract, and that owing thereto the plaintiff contracted with him (see Chitty, 138 ; Johnson v. Pye, 1 Sid. 258 ; Bartlett v. Wells, 1 B. $ S. 836). But in equity infants are no more entitled than adults are to gain benefits to themselves by fraud {per Turner, L. J., Nelson v. Stocker, 28 L. J., Ch. 760) ; and on the ground of fraudulent misrepresentation relief would probably be granted against them {Ex parte Union Joint Stock Mutual Banking Co., 27 L. J., B. Ca. 33 ; Story on Eq. 246. As to the nature and extent of this relief see Pollock on Contracts, p. 56) . How an Infant may Sue. Rule 6. — • Infants may sue as plaintiffs by their next INFANTS. 15 friend, in the manner practised in the Court of Chancery, before the passing of the Judi- cature Act, and may, in like manner, defend any action by their guardian appointed for that purpose (38 & 39 Vict. c. 77, First Sched. Order XVI. s. 8). 16 PARTIES TO A CONTRACT. CHAPTER II. On the Contracts of Married "Women. — ♦ — Section I. Contracts of Wife before Marriage. Husband's Benefit to. Rule 7. — The bene- fit of the wife's contracts, entered into by her before marriage, vests in her husband, provided he reduces the same into possession during her lifetime {Purdeio v. Jackson, 1 Buss. 1). What is a Reduction into Possession. — Sub-rule 1. — There must be some precise and specific act done "from which the court may reasonably infer the disagreement of the husband to the interest of the icife, and an extinguishment of her rights" {Scarpettini v. Ateheson, 7 Q. B. 864, 867). (1) Where the husband brings an action on the contract in the joint names of his wife and himself, and recovers judgment thereon, such a proceeding would constitute a reduction into possession; as would his (Scarpellini v. Ateheson, sup.), or some third party at his request, actually receiving the money due thereon (see Chitty, 153). MARRIED WOMEN. 17 (2) In an action by a payee against the maker of a note, the defendant pleaded that, when the note was made, the plaintiff was the wife of B., and that he elected to take, the note in his marital right, and she, by his authority, indorsed the note, and B. de- livered it and indorsed it to F., and after the note became due, and before action, B. died, and the note came to the plaintiff's possession by delivery from F. Held, that the plea was bad, because it did not clearly show such a reduction of the note into posses- sion of the husband, as disentitled the wife to sue thereon after his death (Scarpellini v. Atcheson, sup.) (3) In Hart v. Stephens (6 Q. B. 937), the court held that the mere fact of the husband receiving interest on a note given to his wife, when she was a feme sole, did not amount to a reduction into posses- sion. See also on this subject, Aitcheson v. Dixon (L. E., 10 Eq. 589), Fleet v. Pprriw {L. R, 4 Q. B. 500). Kule 8. — Should the husband die before the wife, without having reduced her choses in action into possession, they will survive to her, subject to debts contracted by her dum sola [Richards v. Richards, 2 B. Sf A. 447; Rumsey v. George, 1 M. Sf S. 180); and, where the husband, under similar circum- stances, survives the wife, he will be entitled thereto as her administrator, and consequently only after payment of her lawful debts (Betts v. Kimpton, 2 B. Sf Ad. 273). p. c 18 PARTIES TO A CONTRACT. If, after the death of the wife, the husband fails to take out letters of administration to her estate, but some other person does, such person, after payment, of the wife's debts, must hand over the surplus to the husband (Drew v. Long, 22 L. J. (N. S.) Clu 717). Husband's Liability on. Rule 9. — A husband, except in the cases hereinafter mentioned, is liable upon all his wife's con- tracts, made while a feme sole (Beynon v. Jones, 15 M. 6f W. 566) ; but should he survive her, that liability ceases, except as administrator to her choses in action still unreduced into possession (Heard v. Stamford, 3 P. Wins. 409). Exceptions. — (1) In respect to husbands married after the passing of the Married "Women's Property Act*( ft7 ft BB YiWi n fifi )— which came into opera- tion on August 9th, 1870 — and before the Married Women's Property Amendment Act, 1874, it is enacted by sect. .12 of the former statute, that — A husband shall not, by reason of any marriage which shall take place after this Act has come into operation, be liable for the debts of his wife contracted before mar- riage ; but the wife shall be liable to be sued for, and any property belonging to her separate use shall be liable to satisfy such debts, as if she had continued un- married. (2) This section was repealed by 37 & 38 Vict. * 33 & 34 Vict. c. 93. MARRIED WOMEN. 19 c. 50, ss. 1, 2; and in respect to inarriages taking place after the 30th of July, 1874, the law on this point stands thus : — The husband and the wife may be sued jointly for any of the wife's debts contracted before marriage, or for damages sustained by reason of any tort committed by the wife before marriage, or by reason of the breach of any contract made by the wife before marriage, and the husband shall in such action be liable for the debt or damages respectively, to the extent only of the assets therein specified ; -and by sect. 4, it is further provided that when the husband and tvife are sued jointly, if it appears that the husband is liable for the debt recovered, or any part thereof, the judgment, to the extent of the amount for ivhich the husband is liable, shall be a joint judgment against the husband and wife, and as to the residue, if any, of such debt, the judgment shall be a separate judgment against the wife. Section II. Contracts of Wife during Marriage. When a Married Woman can sue or be sued. Rule 10. — A married woman, whether living with her husband, or apart, whether with or without his consent, is unable to contract so as to sue, or be sued thereon {Marshall v. Button, 8 T. R. 545 ; see also remarks in Atwoody. Chichester, L. R., 3 Q. B. D. 722), except in the following cases : — Exceptions. — (1) Where her husband is civilly c2 20 PARTIES TO A CONTKACT. dead, as where lie is undergoing penal servitude {Carrol v. Blencow, 4 Rep. 27). (2) A married woman is by the custom of London entitled to sue, and be sued, in the city courts, in respect to contracts made by her, when she is carry- ing on a trade in the city apart from her husband. It would appear, however, that even in this case the husband must be joined for the sake of conformity (Caudell v. Shaw, 4 T. R. 361). (3) In equity, a feme covert may be treated as a feme sole in respect to property settled upon her for her separate use (Peacock v. Monk, 1 Ves. 128) ; and, consequently, may render such estate liable by her contracts, provided " she purports to contract not for her husband, but for herself, and on the credit of her separate estate, and it was so intended by her, and so understood by the person with whom she is con- tracting " (Matthewson's case, L. R., 3 Eq. 781, 787 ; Johnson v. Gallagher, 30 L. J., Ch. 298; The London Chartered Bank of Australia v. Lempriere, L. R., 4 P. C. 572). It is necessary that the husband be made a party to the suit. (4) By 20 & 21 Vict. c. 85, s. 26, a wife judicially separated shall be considered as a feme sole for the purpose of contract, and wrongs, and injuries, and suing, and being sued in any civil proceeding ; and her husband shall not be liable upon any of her en- gagements then made. Moreover, by 21 & 22 Vict, c. 108, s. 8., it is further enacted, that no discharge, variation, or reversal of any decree for a judicial separation shall . prejudice or affect any rights or remedies which any person would have had in case the same had not been reversed, varied, or dis- MARRIED WOMEN. 21 charged, in respect of any debts, contracts, or acts of the wife incurred, entered into, or done, between the time of the making of such decree and the discharge, variation, or reversal thereof. (5) The 21st sect, of above-stated Act (20 & 21 Vict. c. 85) enables a wife to apply to a' magistrate for a protection order when she has been deserted by her husband: and the wife shall during the con- tinuance thereof be, and be deemed to have been during such desertion, in the like position in all respects with regard to property and contracts, and suing and being sued, as she would be if she had obtained a judicial separation. (6) Next we have to consider the alteration in the law effected by the Married Women's Property Act, 1870. Section 1 enacts as follows : — The wages and earnings of any married woman acquired or gained by her after the passing of this 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 property held and settled to her separate use, independent of any husband to whom she may be married, and her receipts alone shall be a good discharge for such wages, earnings, money, and pro- perty ; and by section 11 it is further provided — A married woman may maintain an action in her own name for the recovery of any wages, earnings, money, and property by this Act declared to be her separate 22 PARTIES TO A C0NTKACT. property, or of any property belonging to her before marriage, and which her husband shall, by ■writing under his hand, have agreed with her shall belong to her after marriage as her separate property, and she shall have in her own name the same remedies, both civil and criminal, against all persons whomsoever for the protection and security of such wages, earn- ings, money, and property, and of any chattels and property belonging to her as an unmarried woman (see Sumner & v. City Bank, L. R., 9 C. P. 580 ; also R, v. Camatic R. Co., L. R., 8 Q. B. 299; Lovett v. Newton, L. R., 4 C. P. B. 7). It will be seen that this latter section, though it gives a married woman the right of suing in her own name, does not confer upon others the right to so sue her. The Act makes property acquired as above stated " separate property," and consequently the creditor who seeks to procure payment thereout is bound by the general rule in equity that no suit can be instituted against a married woman without the husband being a party. This point was discussed in the recent case of Han- cocks v. Lablache (L. R., 3 C. P. D. 197) ; and Mr. Justice Lindley there observes, "Now, the first ques- tion here is whether, on the true construction of the Married Women's Property Act, 1870, such property as is therein declared to belong to her for her separate use is property in respect of which she can sue, and be sued, as if unmarried ? That it is such as she can sue for is undoubtedly declared in sect. 2 ; but, save in certain excepted cases, the Act does not expressly render her liable to be sued, and ss. 1 and 2 cannot be construed to mean that the property in s. 1 MAE*R1ED WOMEN. 23 declared to belong to her apart from her husband, will by virtue of s. 2 belong to her in all respects as if she were an unmarried woman. I do not think it mere accident that a different set of phrases was used in s. 1. and s. 2. It may have been thought expe- dient to give the wife power "to sue in actions without joining her husband, and yet not to give power to others to sue her without joining him, and I cannot hold that the words in s. 1 are equivalent to a provi- sion that the property therein mentioned shall be deemed to belong to the wife as if she were un- married. Starting from that point, I come to the conclusion that the property specified in s. 1. must be treated as belonging to the wife in the manner and to the extent there mentioned, viz. as if settled to her separate use So I find that the Act has not altered the law as to the proper mode of suing a married woman in respect of that property which by this Act is made her separate estate The question is one of much more than mere form, because if the action could be maintained without joining the husband, judgment binding the wife's estate might be obtained against it in his absence, whereas he might have been able successfully to resist it, and so protect his own interest." (7) "Where a promise is made to the wife,, in con- sideration of her exercising some personal skill or labour, or in any case, where she herself can be con- sidered "the meritorious cause of the action," she may be joined as plaintiff with her husband, and, in such a case, should the husband die before execution, the benefit of the judgment will survive to her (see 24 PARTIES TO A CONTRACT. Chitty, 177; Nurse v. Wills, 4 R fy Ad. 739; Bee Sherrington v. Yates, 12 M. fy W. 855). Thus, -when a married woman has undertaken for a certain sum to cure a wound, she may he joined with her husband in suing for such sum (Brashford v. Buckingham, Cro. Jac. 7-7). Similarly she may be joined in suing on a note made payable to her (Phillishick v. Phichwell, 2 M. $• 8. 393). "Is not the wife," it was then re- marked, " the meritorious cause of the action ; she is the donee of the note, and it is acquired through her, and the note is a thing which of itself imports a con- sideration." (8) A married woman may, under the Judicature Acts, 1873, 1875 (First Sched. Ord. 16, s. 8), by leave of the court or a judge, sue or defend without her husband, and without a nest friend, on giving such security (if any) for costs as the court or judge may require. (9) Where the husband has not been heard of for seven years, the presumption is that he is dead, and after that period the wife will be prima facie answer- able on the contracts entered into by her. Husband's Liability on Wife's Contracts. Rule 11. — A husband is not liable in respect of the contracts entered into by his wife during marriage, unless in so contracting she has acted with his express or implied aiitho- rity {Manly v. Scott, 1 Sid. 109). The husband is not liable in respect of a contract MARRIED WOMEN. 25 made by his wife witbout bis assent to it, and a party seeking to cbarge bim in respect of such a contract is bound eitber to prove an express assent on bis part, or circumstances from wbicb sucb assent is to be implied (per Littledale, J., in Montague v. Benedict, 2 8m. L. C. 473). Where the Wife is impliedly her Hus- band's Agent. (Sub-rule) . — Wliere a wife is Iking with her husband, the presumption is that she has his authority to pledge his credit for all articles that are suitable to that station lohich he permits her to assume (Jollyv.Rees,15 G. B.,N. 5.628; Phillipsonr. Hayter, L. R., 6 C. P- 38; Manby v. Scott, sup.). (1) A wife bas prima facie autbority to act as her husband's agent, and to bind him by orders given in those departments of her husband's household which she has under her control ; or for clothes suitable to her position (Freestone v. Butcher, 9 C. fy P. 643). (2) But when it appeared that the plaintiff, a jeweller, in the course of two months, had supplied the defendant's wife with jewelry amounting in value to 83/., and that the defendant was a special pleader, living in a furnished house at 200/., that the wife's fortune upon her marriage was under 4,000/., and that she was well provided with jewelry, and had never worn the articles supplied by the plaintiff in the defendant's presence, nor had the plaintiff, when he called, ever demanded to see the defendant, it was held that the goods so furnished were not necessaries, and that, as there was no evidence to go to the jury to show any assent of the husband, the action could not be maintained (Montague v. Benedict, sup.). 26 PARTIES TO A CONTRACT. Presumption Rebuttable. (Sub-rule 1). — The presumption in the above rule may be rebutted (Manby v. Scott, sup.) ; as by showing that the husband had expressly warned the plaintiff or his servant not to trust her any more (Etherington v. Parrott, 1 Salk. 118) ; or that the ivife received a sufficient allowance for dress, etc. {Rename v. Tealde, 8 Ex. 680). It was formerly considered that a private agreement between man and wife could not affect the tradesman. " It matters not what private agreement they may make," it was said, " the wife has all the usual authorities of a wife." In the case of Jolly v. Bees (15 C. B., N-. S. 628), however, a different rule is laid down, and there it was held a husband's liability for necessaries supplied to his wife may be rebutted when it can be shown that he had expressly ordered his wife not to pledge his credit, even though the trades- man knew nothing of such order. Ratification by Husband. Rule 12. — A husband is liable, whatever be the nature of the goods supplied to his wife, if he knowingly permits her to receive the same, or by his subsequent conduct ratifies her contract ( Waithman v. Wakefield, 1 Camp. 120). Cohabitation. Rule 13. — "Where a man lives with a woman, who passes for his wife, he will be prima facie liable for necessaries supplied her, notwithstanding the fact that the true relationship of the parties was MARRIED WOMEN. 27 known to the plaintiff (Watson v. Threlkeld, 2 Esp. 637) ; and unless the tradesman has had knowledge of the termination of the cohabitation he can recover for necessaries supplied, even after it has ceased (Ryan v. Sams, 12 Q. B. 460). Separation by Mutual Consent. Rule 14. — "Where the husband and wife are living apart by mutual consent, the husband will, under ordinary circumstances, and in the absence of any express revocation of her agency, be liable for necessaries supplied her, unless he allow and actually pay her a suffi- cient sum for her proper maintenance " (8m. L. C, Vol. 2, p. 490; Hodgleinsonv. Fletcher, 4 Camp. 70 ; Johnston v. Sumner, 3 H. Sf N. 261 ; see also Eastland v. Burchell, L. R., 3 C. P. D. 432). Wife having Income of her own. (Sub- rule 1.) — But where the wife p>ossesses a private income of her oimi sufficient to maintain her, and, perhaps, where she is able to earn one {Johnston v. Sumner, 3 H. 8f iV. 261), the husband will not be liable for necessaries, even though he fails to make her an allowance (Clifford v. Laton, M. 8f M. 102). It has been held that a pension given by the crown, and capable of being revoked at will, is not such a source of income as will meet the above sub-rule (Thompson v. Harvey, 4 Burr. 2177). 28 PARTIES TO A CONTRACT. Plaintiffs knowledge of Wife's Allow- ance. (Sub-rule 2.) — The fact that the tradesman who supplied the goods knew, or did not know, that the wife teas receiving an allowance from her husband is im- material (Mizen v. Pick, 3 M. . 8f W. 481). Separation by Husband's Misconduct. Rule 15. — Where the separation is caused by the misconduct of the husband, and he does not make his wife a proper allowance (HodgMnson v. Fletcher, 4 Camp. 70), he will- be liable for necessaries supplied her {Rawlyns v. Vandyke, 3 Esp. 251). " If a man will not receive his wife into his house, or turns her out of doors, he sends her with credit for her reasonable expenses." {Per Lord Eldon, in Rawlyns V; Vandyke, sup.). It would seem that the presumption that the law thus, raises that the man who turns his wife adrift upon the world unprovided for, has constituted her his agent for the purpose of procuring for herself necessaries, cannot be rebutted {8m. L. C, Vol. 2, p. 492), or, at least, is in no way affected by any notice, particular or otherwise, he may give to the tradesman, not to trust her {Boulton v. Prentice, Str. 1214 ; Langworthy v. Roekmore, 1 Lord Raymond, 444). See, however, Johnston v. Sumner, sup., as to whether, supposing the wife was already provided for from other sources, the husband would then be liable. ' It is not necessary that the wife should be actually turned out of her house ; it is enough that MARRIED WOMEN. 29 her husband's conduct has been such as to make her in bodily fear of living with him {Baker v. Sampson, 14 C. B., N. S. 383) ; or of such an immoral character that she cannot be expected to remain in the house ; as, when he brings another woman under his roof to live with him as his mistress (see Aldis v. Chapman, 1 Sel. N. P., 9 Ed. 276 ; Hoidiston v. Smyth, 3 Bing. 127). Separation by Wife's Misconduct. Rule 16. — Where the wife is turned away from her husband's house by reason of her having com- mitted adultery, or where she improperly leaves her husband without his consent, and remains absent from him, even though there has been no adultery, she cannot bind him for neces- saries [Cooper v. Lloyd, 6 C. B., N. 8. 519 ; Johnston v. Sumner, sup. ; Hindley v. Marquis of Westmeath, 6 B. &f C. 200). The same rule applies where the husband has him- self been guilty of adultery (Cfovier v. Hancock, 6 T. B. 603). Presumption as to Cause of Separation. Sub-rule. — Where a married woman is living apart from her husband, the presumption is that the separation ■is owing to her own misconduct, and, consequently, the plaintiff who seeks to recover from the husband must show it to have been caused in some other ivay [Reed v. Moore, 5 C. 8f P. 200). 30 PARTIES TO A CONTRACT. Lunacy. Rule 17. — The authority of a wife to pledge her husband's credit is no greater in the case of a lunatic than in the ordinary case of husband and wife [Richardson v. Dubois, L. R., 5 Q. B. 51). Fraudulent Misrepresentation. Rule 18. — A husband is not liable for a false repre- sentation by his wife that she was a, feme sole; though in consequence thereof the plaintiff may be induced to contract with her [The Liverpool Adelphi Loan Ass. v. Fairhurst, 9 Ex. 422 ; see also Wright v. Leonard, 11 C. B., N. 8. 258). ( 31 ) CHAPTER III. Contracts by Persons non compos mentis — Con- tracts by Drunkards — Contracts by Per- sons under Duress — Contracts by Convicts and Outlaws — and Contracts by Bankrupts. Section 1. ' Contracts by Persons non compos mentis. Contracts for Necessaries. Rule 19. — Persons non compos mentis are liable' for neces- saries supplied to them, provided no advan- tage has been taken of their state of mind by the other contracting party. Money bond fide expended in procuring them necessaries can also be recovered {Nelson v. Duneombe, 9 Beav. 211 ; Wentworthy. Tubb, 1 Y. Sf C. C. 0. In this latter case Shadwell, V.-C, observes, " The inconvenience which would ensue if necessaries could not he supplied to a person in this situation, except gratuitously, so far as he and his estate are concerned, would be great. The consequence might be that, not-* withstanding the possession of large estates, such a 32 PARTIES TO A CONTRACT. person might be left to casual charity, thrown upon the parish, or exposed to starvation.. I am not pre- pared to say that such is the state of the law, and, as at present advised, I think that it is not so" (p. 174). In the leading case of Baxter v. Earl of Portsmouth (5 JB. .8f C. 170) it was held that the defendant, the Earl of Portsmouth, was liable for the hire of certain carriages, notwithstanding the fact that he was in- sane, on it appearing that such carriages were suitable to his degree and fortune, that the price charged for the hire thereof was reasonable, that the plaintiff was not aware of his insanity, and that, consequently, no imposition was practised upon him.. Abbott, C. J., thus stated the law : "I was of opinion at the trial that the evidence produced in this case was not such as ought to defeat the plaintiff's right of recovering in the present action, considering that it was brought for the hire and use of carriages, suited to the state and degree of the defendant, and by him actually ordered and enjoyed. That was the ground on which I expressed my opinion. I, however, took care to distinguish this from the case of an unexecuted con- tract, and from the case of an agreement entered into under such circumstances as might lead any reason- able person to conclude that at the time it was made the party was of unsound mind. A case of the latter description would come under that class where impo- sition is practised upon, or advantage taken of, the mental infirmity of the contracting party. In such cases I by no means wish to extend the opinion which I have formed in the present instance. My PERSONS NOX COMPOS MENTIS. 33 judgment is governed by a reference to the particular circumstances of this case, and it is not to he under- stood as emhracing cases of the description to which I have alluded. Imbecility of mind may, or may not, be a defence in the case of an unexecuted con- tract. I am not saying that it would, nor does my present opinion decide that it would not." Although in this case the decision might have been different had the plaintiff known of the insanity of the defendant, it must not be supposed that in every instance the mere fact of such a knowledge being brought home to the person supplying necessaries to a lunatic will prevent him recovering. In Baxter v. Earl of Portsmouth, though the use of a carriage was, in its legal sense, a necessary for the defendant, it might very well be questioned whether, had the plaintiff known of the Earl's insanity, his supplying such goods would not be held evidence of imposition. But, on the other hand, where the plaintiff boards and provides for an insane person, a knowledge of his real condition is, of course, immaterial [Nelson v. Buncombe, 9 Beav. 211). Articles not Necessary. Rule 20. — A person non compos mentis will be liable for articles supplied to him other than necessaries when (1) at the time of contracting he ap- pears of sound mind and is not known to be otherwise, (2) when the contract itself is bond fide, (3) when it is executed in part or in whole, p. n 84 PARTIES TO A CONTRACT. and (4) when the parties are incapable of being put in statu quo (Motion v. Camron, 4 Ex. 17). Thus: the plaintiff entered into a written con- tract for the purchase of certain land at a specified price from certain persons, vendors thereof on behalf of the defendant, on the terms and conditions that the plaintiff should forthwith pay a sum of 415?. as a deposit on the purchase, &c. The plaintiff paid the deposit at the time of entering into the contract, and an abstract of title was afterwards duly delivered to him, to which no objection was made. At the time the plaintiff entered into the contract he was a lunatic and incapable of understanding its nature ; but this the defendant did not know, and the con- tract on his part was a bondjidc one. Held : that, as the contract was entered into by the defendant, and the money received, fairly and in good faith, and without knowledge of the lunacy, and so far as con- cerned the deposit, the transaction was completely executed, the plaintiff was not entitled to the return of the money so deposited (Bearan v. MacDonneJJ, 9 Beav. 309). Whether Contracts Void or Voidable. Rule 21. — The better opinion would seem to be that contracts entered into by a person non compos mentis, are voidable only, and capable of being confirmed should he attain his mental capacity (see the remarks made in Pollock on Contracts, p. 82). drunkards. 35 Section 2. Contracts by Drunkards. Rule 22. — A person, even in a state of complete intoxication, may be liable in cases where the contract is necessary for his pre- servation — as in the case of a supply of actual necessaries (per Alder son, B., in Crorer. Gibson, 13 M. Sf W. 627). But in respect to other contracts entered into by a man so drunk as not to possess " an agreeing mind," they are in law considered voidable {Mathews v. Baxter, L. R., 8 Ex. 132). It was formerly held that the contracts of a drunkard, whatever might he their nature, were binding upon him, unless, indeed, the drunkenness was caused hy the contrivance of the plaintiff him- self, or there had been some actual unfair advantage taken of the defendant. The same rule applied in Equity. " A Court of Equity," it was said by Sir W. Grant, " ought not to assist a person to get rid of any agreement or deed merely upon the ground of his having been intoxicated at the time. I say, merely upon that ground, as if there were, as Lord Hardwicke expresses it, in Cory v. Cory, 1 Ves. 19, any unfair advantage made of his situation, or . . . any contrivance or management to draw him into drink, he might be a proper object of relief in a Court of Equity" (Cooke v. Claijworth, 18 Ves. 17). Subsequently, however, a different opinion prevailed, d2 36 PAKTIES TO A CONTRACT. and in Pitt v. Smith (3 Camp. 33), Lord Ellen- borough observed, "Intoxication is good evidence upon a plea of non est factum to a deed, of non con- cessit to a grant, or non assumpsit to a promise" (see &ho Fenton v. Holloway, 1 Stark. 126 ; Gore v. Gibson, 13M.8f W. 623). Section 3. Contracts by Persons under Duress. Rule 23. — A person who has been induced to enter into a contract by actual duress, that is to say, by violence or by any threats of violence, is not bound thereby [Smith v. Montieth, 13 M. Sf W. 427 ; Chitty, 186). Duress per Minas.— Duress by threats is of four kinds : (1) loss of life, (2) loss of member, (3) mayhem, (4) imprisonment (Chitty, 187) ; and any such duress will, if a person has thereby been induced to contract, enable him to avoid his act ; but a mere menace to injure goods is not sufficient (Powell v. Soy land, 6 Ex. 67). Section 4. On Contracts by Convicts and Outlaws. Rule 24. — A convict, except as herein- after mentioned, is incapable of alienating or charging any property, or of making any contract. CONVICTS. 37 By sect. 8 of the 33 & 34 Viet. c. 23 (the Act which abolished forfeiture on conviction of treason or felony) it is enacted : " No action at law or suit in equity for the recovery of any property,, debt, or damage whatsoever, shall be brought by any con- vict against any person, during the time while he shall be subject to the operation of this Act; and every convict shall be incapable, during such time as aforesaid, of alienating or charging any property, or of making any contract, save as hereinafter provided." (See sect. 30.) Before this statute was passed, it was held that a felon could be sued on a contract made by him, though he was unable to sue (MacdonaM, v. Ramsay, Fost. Cr. L. 61) ; and it is presumed that this would still be the law in cases not coming under the Act. Who is a Convict ? — The expression convict is defined as being any person against whom, after the passing of the above Act, judgment of death or of penal servitude shall have been pronounced by any court of competent jurisdiction in England, Wales, or Ireland, upon any charge of treason or felony (sect. 6). The disability mentioned in the above rule does not apply to any convict who is lawfully at large under any licence, and, therefore, during that period a con-r vict may both make contracts and sue thereon (sect. 30). Rule 25. — All contracts of letting or sale, mortgages, conveyances or transfers of pro- perty bond fide made by the administrator of 38 PARTIES TO A CONTRACT. a convict, under the powers given him by 33 & 34 Vict. c. 23, shall be binding ; and the propriety thereof shall not be called in ques- tion by such convict, or by any person claim- ing an interest in such property by virtue of that act (sects. 16, 17). Where a person, since the passing of the Act, is convicted of any treason or felony it is lawful for the Crown to commit the custody and management of the property of any such convict to an administrator, in whom all the real and personal property and choses in action of the convict hecome vested during her Majesty's pleasure. The administrator thus appointed is empowered to pay out of the property the dehts and liabilities of the convict, and to make allowances for the maintenance and support of any person dependent upon him, and to do a variety of other acts stated in that statute (see sects. 13, 14, 15, 16, and 18.) By sect. 12, he is further enabled to let, mortgage, sell, transfer and convey any part of the property so vested in him as he shall deem fit. Rule 26. When a convict has undergone the punishment inflicted on him, or has re- ceived the Queen's pardon, he once more re- gains his capacity to contract (sect. 7). BANKRUPTS. 39 Rule 27. A person who has been outlawed is incapable of suing on his contracts, but may himself be sued thereon ( Griffith v. Mid- dletoriy Cro. J. 425 ; MacDonalcl v. Ramsey, sup.) Section 5. Contracts by Bankrupts. Contracts made before Bankruptcy. Rule 28. — The right to sue on the contracts of a bankrupt made by him before his bank- ruptcy, passes, as a general rule, to the trustee in bankruptcy. By the Bankruptcy Act 1869 (32- & 33 Vict. c. 71, ss. 15, 17) it is enacted, that all such property as may belong to, or he Yested in, a bankrupt at the com- mencement of the bankruptcy, or may be acquired or devolve on him during its continuance, shall vest in the trustee. The word "property" includes choses in action arising out of contracts relating to the personal estate of the bankrupt (Beckham v. Drake, 8 M. 8f W. 846 ; Wright v. Fairfield, 2 B. 8f Ad. 727 ; See Hodgson v. Sydney, L. B., 1 Ex. 313 ; Morgan v. Steble, L. JR., 7 Q. B. 611). Rule 29. — A trustee in bankruptcy may be sued in that capacity on the unexecuted contracts of the bankrupt should he elect to take the same (Addison on Con. 854); but 40 PARTIES TO A CONTRACT. should such contracts be considered by him onerous and likely to prove unbeneficial to the estate, he may disclaim them (sect. 23). By section 83 it is provided that the trustee of a bankrupt may sue and be sued by the official name "of the trustee of the property of A. B., a bank- rupt." Contracts by Undischarged Bankrupt. Rule 30. — An undischarged bankrupt is capable of making a contract and also of suing thereon ; but should the trustee choose to interfere and take the benefit thereof, he may, as a general rule, do so, and sue accord- ingly {Chitty ', 185 ; Herbert v. Sayer, 5 Q. B. 965). Exception. — " The earnings of a bankrupt by his personal labour, so far as may be necessary for the support of himself and family," are not liable to the claim of the trustee {Leake, 128; Williams v. Chambers, 10 Q.B. 337). Effect of Discharge. Rule 31. — A bank- rupt who has obtained his discharge is, except in certain cases (see sect. 49), released from liability in respect to all other debts prov- able under the bankruptcy (sect. 49); nor can he make himself responsible for such BANKRUPTS. 41 debts by any express, promise to pay the same made after adjudication (see 24 & 25 Vict. c. 134, s. 164; Chitty, 182). Since the writing of this rule it has been held in the case of Jakeman v. Cook (L. B., 4 Ex. B. 26), that a promise by a bankrupt after his discharge, made on a new and valuable consideration, to pay a debt, which by virtue of sect. 49 has been released by such discharge, will be binding upon him. 42 PAltTIES TO A CONTRACT. OHAPTEE IV. Contract's by Corporations and Con- tracts by Agents. Section 1. Contracts by Corporations. Eule 32. — Corporations, though competent to contract, must (except in the cases herein- after stated) do so under the common seal of the body corporate [Arnold v. The Mayor of Poole, 4M. 6f Gr. 860 ; The Mayor of Ludlow v. Charlton, 6 M. $ W. 815 ; see Hunt v. The Wimbledon Local Board, L. R.,± C. P. D. 48). So, in Arnold v. The Mayor of Poole (sup.) it was held that no municipal corporation (other than that of London) could appoint an attorney, except under the seal of the corporation. Exceptions. — (1) When the contract relates either to trivial matters of frequent occurrence, or such as from their nature do not admit of delay, it need not he under seal (East London Waterworks Company v. Bailey, 4 Bing. 183). (2) A company, which is established for the pur- pose of trading, may make all such contracts as are CORPORATIONS — AGENTS. 43 of ordinary occurrence in that trade without the formality of a seal (Per Montague Smith, J., in South of Ireland Coll. Co. v. Waddle, L. B., 3 C. P. 474). In that case, Bovill, C. J., observes, "Originally all contracts by corporations were required to be under seal. From time to .time certain exceptions were introduced, but these for a long time had reference only to matters of trifling importance and frequent occurrence, such as the hiring of servants, and the like. But in progress of time, as new descriptions of corporations came into existence, the courts came to consider whether these exceptions ought not to be extended in the case of corporations created for trading and other purposes. At first there was con- siderable conflict, and it is impossible to reconcile all the decisions on the subject. But it seems to me that the exceptions created by the recent cases are now too firmly established to be questioned by the earlier decisions, which, if inconsistent with them, must, I think, be held not to be law. These exceptions apply to all contracts by trading corporations entered into for the purpose for which they were incorporated. A company can only carry on business by agents and managers, and others, and if the contracts made by these persons are contracts which relate to objects and purposes of the company, and are not incon- sistent with the rules and regulations which govern their acts, they are valid and binding upon the com- pany though not under seal. It has been urged that the exceptions to the general rule are still limited to matters of frequent occurrence and small importance ; 44 PARTIES TO A CONTRACT. the authorities, however, do not sanction that argu- ment." (a) Thus, a company incorporated for the pur- pose of trading as shipowners were sued for the non- performance of a contract not under seal, by which they had undertaken to proceed to a certain port and hring back a disabled vessel. Held, on demurrer, that the corporation being a trading one, and incor- porated for a specific purpose, the company was bound by the contract as being made in furtherance of the purpose for which the corporation was formed (Henderson v. The Australian Steam Navigation Co., 5 K8fB. 409). (b) Again, a company incorporated for the work- ing of collieries contracted with an engineer for the erection of a pumping-engine and machinery for that purpose, and paid him part of the price. In an action by the company against the engineer for a breach of contract, in refusing to deliver the engine and machinery, it was held that the action was main- tainable though the contract was not under seal (The South of Ireland Colliery Co. v. Waddle, L. H., 3 C. P. 463). (c) But where a company was incorporated for the purpose of working copper mines and selling copper ore, and the action was brought by the corporation for the value of certain iron rails supplied to the defendant, it was held not to be maintainable. " Had the subject matter of the contract been cop- per," it was said, " or, if it had been shown in any way to be incidental or auxiliary to carrying on the business of copper miners, the contraot would have CORPORATIONS — AGENTS. 45 been binding, although not under seal. But the iron rails, the subject-matter of this contract, were not shown to have any connection with the business of copper miners " {The Copper Miners' Co. v. Fox-, 16 Q. B. 229). So long as the contract is within the scope of the object for which the company was incorporated the magnitude or insignificance of its subject-matter is immaterial {The South of Ireland Colliery Co. v. Waddle, sup.). (3) It is possible that where a corporation has per- formed its part of the contract, and the contractee has reaped and enjoyed the benefits thereof, it would be entitled to sue thereon though such contract was not made by deed. So, it has been held that a corporation may main- tain assumpsit for the use and occupation of land held under them {The Mayor of Stafford v. Till, 4 Bing. 75). There seems to be considerable doubt, however, as to the soundness of this rule, and the .authorities are more or less conflicting. In the Court of Queen's Bench, in Church v. Imperial Gas Light Co., 6 A. 6j* E. 846, it was decided that the right of a corpora- tion to sue on a contract not under seal was the same when such contract was executed as it was when executory (see also London Dock Co. v. Linnot, 8 E. 8f B. 347). (4) ,The better opinion would seem to be that when the other party has performed his part of the con- tract, and the corporation has derived the benefit there- from, he may sue such corporation, notwithstanding 46 PASTIES TO A CONTRACT. that the contract was not under seal (Nicholson v. Bradfield Union, L. R., 1 Q,. B. 620 ; Clarke v. Cuck- field Union, 21 L. J., Q. B. 349 ; but see Sunt v. The Wimbledon Local Board, sup.). According to Biggie v. The London and Blaekwall Railway Co. (sup.) a mere adoption of the work done will not suffice : it is necessary also that the work itself comes within the scope of the object for which the company was incorporated (see also Lamprell v. Guardian of Billerkay Union, 3 Ex. 283). Section 2. On the Contracts of Agents. Definition. — "Agency is founded upon a con- tract either express or implied, by which one of the parties confides to the other the management of some business to be transacted in, his name, or on his account, and by which the other assumes to do the business and render an account of it " (Kent's Com., 10 Ed,, vol. 2, p. 848). Kinds of Agencies. — Agency, in respect to the extent of the authority vested in the agent, is of three kinds: — (1) A particular or special agency — that is to say, an agency wherein the agent is authorized to do some particular or special act. (2) A general agency — or one wherein the agent is authorized to do every act that can reasonably be said to come within the scope of some particular trade or business. (3) An universal agency — or one in which the CORPORATIONS — AGENTS. 47 agent is authorized to do every act that his principal is by law competent to depute to another. The case of universal agency is seldom, if, indeed, ever met with ; and, in the course of the present section, I purpose dealing only with the two former descrip- tions. How an Agent may be Appointed. Rule 33. — For the purpose of entering into a simple contract, an agent may be appointed by word of mouth only, and in some cases, as has been stated, that relationship may be created by mere implication (p. 25). By sections 1, 2 and 3 of the Statute of Frauds (relating to the creation, surrender or assign- ments of freeholds and leaseholds) it is enacted, that the agent, before he can bind his principal by signing on his behalf, must be appointed by writing. " The authority to contract for a lease," remarks Mr. Chitty in a note on page 190, "need not be in writing, though the authority to sign the lease or instrument by which the interest passes must be." Who may be Agents. Rule 34. — It may be said, generally, that all persons are capable of being agents ; nor does it follow that be- cause a person is not competent to contract for himself, he is therefore disabled from com 48 PARTIES TO A CONTRACT. tracting on behalf of another. A principal, however, has no remedy against an agent who is incompetent to contract in his own right. Consequently, an infant may contract as agent for another, as also may a married woman (Lindus v. Bradwett, 5 C. B. 583), or an outlaw. Agents under the Statute of Frauds. (Sub-rule). — In contracts, coming under the Statute of Frauds, the agent, who is to bind his principal by sign- ing on his belialf, must be some third person, and not the other contracting party (Sharman v. Brandt, L. R., 6 Q. B. 720). An auctioneer wrote down the defendant's name by his authority, opposite to the lot purchased, which was in value above -101., so that the 17th section of the Statute of Frauds applied. Held, on an action being brought in the name of the auctioneer, that the entry in such book was not sufficient to take the case out of the statute (Farebrother v. Simmons, 5 B. 8f A. 333). Had the auctioneer's clerk signed in the presence of the bidder, or by his authority, that would have been sufficient (Bird v. Boulter, 4 B. fy A. 443) ; nor could any objection have been raised if the auctioneer had not been suing as the other contracting party, for there is nothing to prevent his being agent for both parties (Farebrother v. Simmons, sup.). Liability of Principal on the Authorized Contracts of his Agents. Rule 35. — A CORPORATIONS — AGENTS. 49 principal is liable on all contracts entered into by Ms agent which he has expressly au- thorized him to make and are made in ac- cordance with that authority. This rule is in accordance with the maxim " Qui per alium facit per seipsum facere videtur" {Coke upon Littleton, p. 258). Liability of Principal on the Unautho- rized Contracts of his Agents. Rule 36. — " If a particular agent exceed his authority, his principal is not bound by what he does ; whereas if a general agent exceed his autho- rity his principal is bound, provided what he does is within the ordinary and usual scope of the business he is deputed to transact" (Sm. on Cont, p. 375, 6th ed.); and provided the contractee has had no notice of the excess of authority {Trueman v. Lode?', 11 A. Sf E. 589). The distinction thus drawn between a special and a general agency is obvious. Where a person has been authorized by another to act in a particular way, or to enter into a particular contract, and he is ap- pointed agent simply and solely for that one purpose, then it is the duty of persons dealing with such agent to ascertain the extent of his authority (Fenn v. Harrison, 3 T. B. 762). But where a person allows another to carry on some particular business on his behalf, he thereby impliedly authorizes him to do all such acts as are generally done in that business, p. n '50 PARTIES TO A CONTRACT. and as can reasonably be considered within the scope thereof, and the public, dealing with such a person, have a right to conclude that he is only doing what he has been authorized to do. Consequently, should it happen that, in point of fact, the agent has been acting beyond his authority, or without any at all, the principal must be held liable, in accordance with the maxim, that where one of two innocent persons must suffer by the act of a third, he who has enabled such third person to occasion the loss must sustain it (per Ashurst, J., in Lickbarroicv. Mason, 2 T. R. 70). (1) A. employed B. to manage his business, and to carry it on in the name of B. and Co. The drawing and accepting of bills of exchange was inci- dental to the carrying on of such business, but it was stipulated between them that B. should not draw or accept bills. B. accepted a bill in the name of B. and Co. Held that A. was liable on the bill in the hands of an indorsee, who took it without any knowledge of B. or the business (Edmunds v. BusheU, L. B., 1 Q. B. 97). " It would be very dangerous to hold that a person, who allows an agent to act as a principal in carrying on a business, and invests him with an apparent authority to enter into contracts incidental to it, could limit that authority by a secret reservation" (per Mellor, J.) (2) The servant of a private person intrusted to sell and deliver a horse on one partioular oooasion has not by law any authority to bind his master by giving a warranty. Therefore, should such servant CORPORATIONS AGENTS. 51 in the course of the sale give a warranty with the horse, when not authorized by his master to do so, the master will not be bound thereby (Brady v. Todd, 9 C. B., N. S. 592). (3) But where the servant is in the employment of a horsedealer, then there is an implied authority given him to bind his master by a warranty ; and the master would be liable for such warranty, even though his servant had express orders not to warrant {Howard v. Steward, L. B., 2 C. P. 148). (4) It must be borne in mind that, even in the case of a general agency, the principal is only liable for acts done within the scope of the business or em- ployment wherein he has instructed his agent to act. Accordingly, where a station master contracted, without authority, for surgical attendance on some passengers who had been injured in an accident, it was held that the Company was not liable ; such contract not being incidental to the employment of a station master (Cox v. The Midland B. Co., 3 Ex. 268). Factors' Acts (5 & 6 Vict. c. 39 ; 6 Geo. 4, c. 94). — Before the passing of these acts, an agent, intrusted with goods for the purpose of selling them, could not bind his principal by pledging the same (Paterson v. Task, 2 Str. 1178). By sect. 1 of 5 & 6 Vict. c. 39, the law is now altered, and it is enacted, that; — From and after the passing of that act, any agent who shall thereafter be intrusted with the possession of goods, or of the documents of title to goods, shall be- e2 52 PARTIES TO A CONTRACT. deemed and taken to be the owner of such goods and documents, so far as to give validity to any contract by way of pledge, lien, or security bond fide made by any person with such agent intrusted as aforesaid, as well for any original loan or advance made upon the security of such goods or documents, as also for any further or continuing advance in respect thereof, and such contract shall be binding upon the owner of such goods, and all other persons interested therein, notwithstanding the person claiming such pledge or lien may have had notice that the person with whom the contract is made is only an agent. In reference to this act, the following points should he remembered : — (1) The section just cited requires an agent; a mere clerk or servant is not sufficient {Lamb v. Attenborough, 1 B. 8f 8. 831). (2.) The agent must have heen intrusted with the possession of the goods, or the documents of title thereto. A person who has obtained goods under false pretences has no power to hind their true owner hy a pledge thereof {Higgins v. Burton, 26 L. J., Ex. 342 ; see also, as to what is an intrusting under the statute, sect. 4 ; Sheppard v. Union Bank of London, 7 H.$ N. 661 ; Vickers v. Hertz, L. B., 2 Sc, App. 113). (3) When the pledge is made in consideration of a past debt, the owner will not be hound (seot. 3), nor will he where the pledgee is aware that the agent has no authority to pledge the goods (sect. 3). But, as has heen stated, the mere fact of the pledgor heing known to be an agent will not take the person having CORPORATIONS — AGENTS. 53 such knowledge out of the protection of the statute (sect. 1). (4) Where the consideration for the pledge is the delivery of other goods, or documents of title, whereon the person who delivers them possesses a lien for a past deht or advance, ,an absolute lien, to the extent of the value of the goods delivered, is acquired by the pledgee. (See Cutty's Statutes, 5th ed., vol 2, p. 56.) (5) The goods are considered to be in the posses- sion of the agent, not only where they are in his own custody, but also where they are held by some person on his behalf and subject to his control (sect. 4). See the Factors' Act of 1877 (40 & 41 Vict. c. 39). When the Principal may be sued. Rule 37. — Supposing the contract to be one that in its nature is binding upon the prin- cipal, he may (subject to what is hereafter stated) be sued thereon in any of the three following cases:— (1) where his agent con- tracts in his own name without disclosing that he has a principal ; (2) where he states that he has a principal but does not disclose his name ; and (3) where he makes the contract stating who his principal is [Thomson v. Daven- port, 9 B. $• C. 86 ; Paterson v. Gandesequi, 15 East, 62). Altering of Accounts. Sub-rule 1. — Wliere the principal is not disclosed, or disclosed but his name not mentioned, he cannot be sued, if the state of accounts 54 PARTIES TO A CONTRACT. between himself and his agent would thereby be altered to his (the principal's) prejudice ; or, if there is anything in the transaction making it inequitable that lie should be held liable (Tliomson v. Davenport, sup. ; Smyth v. Anderson, 7 C. B. 21). In Armstrong v. Stokes (L. R., 7 Q. B. 598) it was held that a vendor dealing with a person he believed ' to be a principal, and to whom he gave credit, can- not sue the real principal, when discovered, if the latter has bond fide, and in the ordinary course of business, paid his agent for the goods supplied, at a time when the vendor still gave credit to the agent, and knew no one else as principal. Where there has been an Election. Sub- rule 2. — Where the contract is made in tlie principal's name, so that the other contracting party had full oppor- tunity of electing to whom he should give credit, and he elects to give such credit to the agent, he cannot after- wards sue the principal (Thomson v. Davenport, sup>.). In that case, Lord Tenterden remarked, " If at the time the seller knows not only that the person who is nominally dealing with him is not the principal but agent, and also knows who the principal really is, and, notwithstanding all that knowledge, deals with him, and him alone, then the seller cannot afterwards, on the failure of the agent, turn round and charge the principal, having once made his elec- tion at the time when he had the power of choosing between him and the other." The fact that the buyer knew that there was a principal does not give him the means of making his CORPORATIONS — AGENTS. 55 election, unless he was also aware who he really was {Thomson v. Davenport, sup.). It is a question for the jury whether the plaintiff had elected to give credit to the agent or the principal {Calcler v. Bobell, L. P., 6 C. P 486 ; Curtis v. Williamson, L. P., 10 Q. B. 57). "When the Agent may be sued. Rule 38. — An agent who contracts as such for a known principal cannot, as a rule, be sued (TJwmas v. Edwards, 2 M. Sf W. 215; see Fairley v. Fenton, L. R., Ex. 169). But when he enters into a contract as principal ; or (in general) as agent, but without disclosing who his principal is, the rule is otherwise (Thomson v. Davenport, sup.). In the following cases, a person contracting as agent may be sued, even though he has contracted in his representative capacity, and has stated the name of his principal. (1) Where he has expressly undertaken to be liable {Parker v. Winlow, 7 E. 8f Bl. 942 ; see Southicell v. Botccltfch, L. P., 1 C. P. B. 344; Fleet v. Mtcrton, L. R., 7 Q. B. 129). (2) If the so-called agent has, in point of fact, no principal, he is in law considered to be the principal, and is liable on the contract {Kelner v. Baxter, L. P., 2 C. P. 174; but see Smout v. Ilbery, post, p. 59). (3) Where, without the knowledge of the contrac- tee, he exceeds his authority. In this case, it would seem, that he would not be liable upon the contract itself {Jenkins v. BTutchkinso?!, 56 PARTIES TO A CONTRACT. 13 Q. B. 744) ; but, if he knowingly misrepresented the extent of his authority, on the fraudulent misre- presentation (Randell v. Trimen, 18 C. B. 786) ; and if he did not know that he was doing this, then on the implied contract that he had the authority he represented himself as possessing (Cotton v. Wright, 7 E. 8f 31. 301). This latter action could also he maintained where he had been guilty of fraud (Ban- dell v. Trimen, sup.). In every case in which an agent, not incapable of contracting on his own account, exceeds his authority, and thereby occasions loss to his principal, he will be liable to such principal (Barron v. Fitzgerald, 6 Bing. N. C. 201). Parol Evidence to relieve Agent's Lia- bility. Sub-rule 1. — An agent who signs a written contract in his own name, and not on behalf of his principal, cannot free himself from liability on such contract, by showing that the contractee knew that he was only an agent when he signed the written agreement (Higgins v. Senior, 8 M. 8f W. 834). He may show, by icay of equitable plea, however, that when the contract ■was made it teas the intention of the plaintiff and him- self that he should not be rendered answerable as prin- cipal (see Chitty, 207) ; or that it was so expressly stipulated (Wake v. Hassop, 6 H. fy JST. 768). When the Principal may sue. Eule39. — Where a simple contract is made by an agent (which is not by bill of exchange or promissory note, signed by the agent in his CORPORATIONS — AGENTS. 57 own name), the principal may sue thereon, (1) where at the time of the contract he was fully disclosed, (2) where he was disclosed but his name not mentioned, and (3) where the agent contracted in his own name (Spurr v. Cass, L.B.,5 Q. B. 659 ; Phdps v. Protheroe, 16 C. B. 370). In the latter case the defend- ant is entitled to be placed in the same posi- tion at the time of the disclosure of the real principal, as if the agent had been the con- tracting party in point of fact {Sims v. Bond, 5 B. Sf Ad. 395). Thus, where goods were sold to the defendant by the factor to the plaintiff, the defendant, on an action being brought by the plaintiff for the value of such goods, was held to be entitled to set off a debt due to him from the factor (George v. Clagget, 7 T. R. 359). " Where a factor, dealing for a principal, but con- cealing that principal, delivers goods in his own name, the person contracting with him has a right to consider him, to all intents and purposes, as the principal ; and, though the real principal may appear and bring an action upon that contract against the purchaser of the goods, yet that purchaser may set off any claim he may have against the factor in an- swer to the demand of the principal" (per Mansfield, C. J.). When the Agent may sue. Kule 40. — - An agent who has made a contract in his own name and without disclosing the fact that he 58 PARTIES TO A CONTRACT. has a principal ; or who has disclosed the fact but not stated who his principal is, may sue thereon (Short v. Spademan, 2 B. 6f Ad. 762 ; Sims v. Bond, sup.). But where he contracts as agent in the ordinary way he cannot do so, except as stated in the next paragraph. Exception. Sub-rule. — Where the agent lias some beneficial interest or special property in the subject- matter of the contract, and his principal does not elect to sue, he may do so, notwithstanding that the contract was made in the principal's name {Snee v. Prescott, 1 Atli. 245 ; Sadler v. Leigh, 4 Camp. 196 ; see Robinson v. Butter, AE.fyB. 954 ; Grice v. Kemoick, L.B.,5 Q. B. 340). Thus, a carrier, a factor, an auctioneer, &c, have a special property in the goods of their principal. Ratification. Rule 41. — A person may ratify a contract made by another professing to act on his behalf, but without his consent, and thereby enable himself to sue and be sued thereon (Foster v. Bates, 12 M. Sf W. 226). ' ' The subsequent ratification is equivalent to a prior command, and the great maxim of agency, Qui facit per aliumfacit per se, has a retrospective effect" (Sm. on Con. p. 390). Delegatus non potest Delegare. Rule 42. - — An agent cannot delegate his authority to another except (1) when compelled to do so by necessity, or (2) when allowed to do so by some CORPORATIONS AGENTS. 59 usage of trade, or (3) by the consent of his principal (Truemany.Zoder, 11 A. Sf E. 589). So an agent of an agent cannot bind the principal by any act he may do, or by any contract he may make. How an Agency may be Terminated. Rule 43. — The authority of an agent may be terminated either (1) by the death or bank- ruptcy of himself or his principal, (2) by express relocation, (3)by renunciation, (4)by the performance of the act he was appointed to do, or (5) by the lapse of- time (if any) during which he was to act (see Chitty, 191) ; (6) by marriage of the principal, if a feme sole. In respect to revocation of an agent's authority by the death of the principal, the leading case of Smout v. Ilbery, 10 M. Sf W.l, should be consulted. In that case a butcher had been accustomed to supply meat to A.'s wife during his residence abroad. A. having died, an action was brought against the wife for the price of certain meat supplied during one of her hus- band's visits abroad. But it was held not to be maintainable, on the ground that she had received no tidings of her husband's death, and had bond fide be- lieved she still had authority to pledge his credit. On the other hand, it was decided that A.'s executors were not liable for the meat sold after his death, as his wife's authority to act on his behalf was thereby terminated. PARTIES TO A CONTRACT. CHAPTEE V. Contracts by Partners and Partnership generally. What is a Partnership. — Partnership, often called co-partnership, is usually denned to be a voluntary contract between two or more persons to place their money, effects, labour, skill, or some or all of them, in lawful commerce or business, with the understanding that there shall be a community of the profits thereof between them {Story on Part. 4). Quasi Partnership. — Besides the above kind of partnership, usually termed " True Partnership," there is, what is called, " Quasi Partnership," that is to say, a partnership which does not exist in fact, but only quoad third parties (see Lindley, 34). How a True Partnership may be Created. Rule 44. — A partnership contract may, as a rule, be entered into without any formality. Neither is a writing, deed, nor registration necessary {Lind. on Part. pp. 87 — 89). Exceptions. — Among the most important exceptions to this rule may be stated the following: — (1) Under the 4th section of the Statute of Frauds, a partnership that is to continue for a longer period PARTNERS AND PARTNERSHIPS. 61 than a year must be in writing (Chitty, 210 ; see, how- ever, McKay v. Rutherford, 13 Jur. 21). But, it would appear, a partnership, having for its purpose the purchasing and selling of land, may be evidenced by parol {Bale v. Hamilton, 5 Hay, 369). (2) By the Companies Act, 1862 (25 & 26 Vict. c. 89) , it is enacted, that no partnership of more than ten persons shall be formed, after the commencement of that act, for the purpose of banking, unless registered under the act, or formed under an act of parliament, or letters patent: and no company consisting of more than twenty persons shall be formed, unless regis- tered under the act, or formed in pursuance of some act of parliament, or of letters patent, unless it be a mining company within the jurisdiction of the stannaries. It is not purposed here to consider the laws re- lating to joint-stock companies, and in the present chapter I must be understood as restricting my re- marks to ordinary partnership. How a Quasi Partnership can be Created. Rule 45. — A quasi partnership may be created either by a person participating in the profits of a concern, or by his holding himself out as a partner therein. Participation in Profits. Sub-rule 1. — A person, who shares in the profits of a concern, is prima facie presumed to be a partner therein ; out this pre- sumption may be rebutted by showing that from the whole 62 PARTIES TO A CONTRACT. agreement of the parties it was not their intention that a partnership should be constituted (Molwo, March 8f Co. v. The Court of Wards, L. R., 4 P. C. 435). It was formerly held that, in respect to third parties, a person who participated in the profits of a concern hecame ipso facto a partner, because "he who takes the general profits of a partnership," it was said, " must of necessity he made liable to the losses" (see Waugh v. Carver, 2 H.fyBl. 236; 1 Sm. L. Ca. 922). This rule, however, gradually hecame much modified, and, though a participation in the profits raises a prima facie presumption of such a relationship (Pooley v. Driver, L. R., 5 Ch. D. 458), it is now clearly settled, that such presumption is capable of being re- butted; and that the saying, "because there is a participation of profits, there must of necessity be a partnership," is incorrect (Coxy. Hickman, 8 H. L. Ca. 268). A test for seeing whether there is a part- nership of this nature has been stated to be, "was there the existence of such a relation between the parties that each of them is a principal and each an agent for the other ?" (Per O'Brien, J., in Shaw v. Gait, cited in Holme v. Hammond, infra; but see Pooley v. Driver, sup.). " It is said," observed Lord Cranworth in Cox v. Hickman, " that the test, or one of the tests, whether a person, not ostensibly a partner, is, nevertheless, in contemplation of law a partner, is whether he is en- titled to participation in the profits. This, no doubt, is in general a sufficiently accurate test ; for a right to participate in profits affords cogent, often conclusive, evidence that the trade in which the profits have been PARTNERS AND PARTNERSHIPS. 63 made was carried on in part for, or on behalf of, the person setting up such a claim. But the real ground of the liability is that the trade has been carried on by persons acting on his behalf. Where that is the case, he is liable to the trade obligations, and entitled to the profits, or to a share of them. It is not strictly correct to say that his right to share in the profits makes him liable to the debts of the trade. The cor- rect mode of stating the proposition is to say that the same thing that entitles him to the one makes him liable to the other, namely, the fact that the trade has been carried on on his behalf, i. e. that he stood in the relation of principal toward the persons acting ostensibly as the trader by whom the liabilities have been incurred, and under whose management the profits have been made." 28 & 39 Vict. c. 86. — By this act it is enacted that — (1) The advance of money by way of loan to a person engaged, or about to engage, in any trade or undertaking, upon a contract in writing with such person, that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profits arising from the carrying on of such trade or undertaking, shall not of itself constitute the lender a, partner with the person or persons carrying on such trade or undertaking, or render him re- sponsible as such. (2) No contract for the remuneration of a servant or agent of any person engaged in any trade or under- taking by a share of the profits of such trade or undertaking, shall of itself render such servant or 64 PARTIES TO A CONTRACT. agent responsible as a partner therein, nor give him the rights of a partner. (3) No person being the widow or child of the deceased partner of a trader, and receiving by way of annuity a portion of the profits made by such trader in his business, shall by reason only of such receipt be deemed to be a partner of, or to be subject to any liabilities incurred by, such trader. (4) No person receiving, by way of annuity or otherwise, a portion of the profits of any business in consideration of the sale by him of the goodwill of such business, shall by reason only of such receipt be deemed to be a partner of, or to be subject to the liabilities of the person carrying on such business. Effect of the Act.— The effect of the above act is that, in respect to the protected classes men- tioned therein, the sharing of profits shall be no evidence at all of a contract of partnership ; whereas with regard to other persons, it is, as we have seen, prima facie, though not conclusive, evidence thereof {Holme v. Hammond, L. It., 7 Ex. 218 ; see Pooler/ v. Driver, sup.). Holding Out. Sub-rule 2. — A person ivho by lending his name to a concern, or otherwise, induces another to believe him to be a partner tlierein, is liable as such to that other, should he act on the faith of that representation. " If it could be proved," said Lord "Wensleydale, in Dickinson v. Valpy (10 B. fy C. 140), "that the defendant had held himself out to be a partner, not PARTNERS AND PARTNERSHIPS. 65 to the world, for that is a loose expression, but to the plaintiff himself, or under such circumstances of publicity as to satisfy a jury that the plaintiff knew of it, and believed him to be a partner, he -would be liable to the plaintiff in all transactions in which he engaged and gave credit to the defendant, upon the faith of his being such partner. The defendant would be bound by an indirect representation to the plaintiff arising from his conduct, as much as if he had stated to him directly and in express terms that he was a partner, and the plaintiff had acted upon that statement." Nominal Partner. — A person who thus lends his name to a concern without having any real interest therein, is called a nominal partner. Effect of Plaintiff's Knowledge of De- fendant's Position. — It has been held that a nominal partner is liable, even though the plaintiff, when he gave credit to the firm, was not aware of his name being so used (Young v. Axtell, cited in 2 IT. 8f BI. 242) ; and, also, that he cannot exempt himself from liability by showing that the fact that he pos-? sessed no interest in the firm, was known to the plain- tiff at the time of his dealing therewith (see Broicn v. Leonard, 2 Chitty, 120; and also Lindky,p. 48). The former of these propositions, however, has been considerably questioned, and may now be looked upon as unmaintainable (see remarks by Mr. Smith, in S. L. Ca. 952, and Chitty on Con. 216) ; while the latter has been dissented from in AMerson v. Tope (1 Camp, p. v 66 PARTIES TO A CONTRACT. 404, «.), and Batty v. HacCundie, (3 0. P. 202). The reason why a nominal partner might still be liable, notwithstanding it being known that he had no interest in the concern, is that the lending of his name "might justify the belief that he is willing to be responsible to those who may be induced to trust him for payment" (land. p. 48). How far Contracts by Partners are bind- ing among themselves. Rule 46. — Partners may stipulate among themselves that some of them only shall enter into particular contracts or into any contracts, or that as to certain of their contracts none shall be liable except those by whom they are actually made (per lord Cranworth, 8 II. L. Ca., 304, 305), and, gene- rally, may make what arrangements they may choose as to the management of the affair. An agreement whereby one person is to receive the whole of the profits arising out of a concern would not create a partnership at all, community of profits being an essential element in such a contract (Sm. on Con. 413). The effect of these and similar agreements between partners as regards third parties, is (as will be seen in the next rule) widely different. Dormant Partner. — A dormant partner is a partner who participates in the profits of a concern, but who does not appear to the world as a partner (see Sm. Merc. Law, p. 20). PARTNERS AND PARTNERSHIPS. 67 To what Extent one Partner is liable for the Contracts of his Co -Partners. Rule 47, — Every partner, acting on behalf of the firm, can bind his co-partners by contracts entered into by him, though without the authority of such co-partners, provided (1) the contract comes within the scope of the ordinary business of the firm ; and (2) that notice of such want of authority was not brought to the knowledge of the party with whom the contract was made. When the contract is one which the partner is authorized to make by the others, it need hardly be said they will be bound thereby. (1) Thus, it is clearly settled that one partner in a trading firm can bind the others by borrowing money for partnership purposes {Brown v. Kidger, '6R.8fJSr. 853 ; Botlmell v. Humphreys, 1 Esp. 406). (2) So, again, supposing the partnership is a trading partnership, a partner can bind his co- partners by accepting, drawing, or indorsing bills of exchange, though he be expressly forbidden by the firm to enter into such contracts {Kirk v. Blurton, 9 M. 8f W. 284; Forbes v. Marshall, 11 Ex. 166). But, where the firm is not a trading one, as in the case of a firm of solicitors, there is no implied authority for one of the partners to bind the others by drawing, accepting, or indorsing such instruments [Garland \. Jacomb, L. B., 8 Ex. 216). (3) A trading firm is bound by one of its partners f2 68 PARTIES TO A CONTRACT. releasing a debt due to it [Steady. Salt, 3 Bing. 101), or by the sale, or insurance, of the partnership goods by one of its members {Fox v. Haiibury, Cowper, 445 ; Hooper v. Lusby, 4 Gamp. 66). (4) A partner has no implied authority to bind his co-partners by a submission to arbitration {Adams v. Bankart, 1 Or. M. 8f B. 681), nor, as a rule, by executing a deed {Berry v. Jackson, 4 T. B. 516), nor by giving a guaranty {Duncan v. Loicndes, 3 Camp. 481), (5) But, as above stated, if the plaintiff when he contracted with one of the partners was aware that such members had no authority to contract on behalf of the firm he cannot recover. In Gallway v. Mathew (1 Camp. 402 ; 10 East, 264) the defendants M. and S. were partners. S., by a public notice, warned all persons not to give credit to M. on his (S.'s) account, such notice also stating that he would not be answerable for bills or notes drawn by M. in the firm's name. It was proved that Gr., the plaintiff, had seen this. Held, that he could not recover from S. the money due on a promissory note, drawn by M. in the name of the firm. "The general authority of one partner to draw bills or promissory notes to charge another is only an implied authority, and that implication was rebutted in this instance by the notice given by Smithson, who is now sought to be charged, which reaohed the plaintiff, warning him that Mathew had no suoh authority. It is not essential to a partnership that one partner should have power to draw bills and notes in the partnership firm to charge the others ; PARTNERS AND PARTNERSHIPS. 69 they may stipulate between themselves that it shall not he done ; and, if a third person, having notice of this, will take such a security from one of the partners, he shall not sue the others upon it in breach of such stipulation, nor in defiance of a notice pre- viously given to him by one of them that he will not be liable for. any bill or note signed by the others" (per Lord Ellenborough). Ratification. Sub-rule. — Partners, not otherwise liable on a contract made by a co-partner, may become so by subsequently ratifying and confirming the same {Duncan v. Lowndes, 3 Camp. 478). How a Partnership may be Dissolved. Rule 48. — A partnership may be dissolved in any of the following ways : (1) by mutual consent ; (2) by the death of one of the partners; (3) where the partnership is con- stituted for a particular period or purpose by the termination of that period, or by the object of the partnership being accomplished; (4) by the impossibility of proceeding with the concern, as when it becomes insolvent ; (5) by the transfer of a partner's interest, as, for instance, by bankruptcy; (6) by the part- nership subsequently becoming illegal ; and, lastly (7), by the decree of a Court of Equity {Lindley, 231 ; Chittij, 236). 70 PAUTIES TO A CONTRACT. Notice of Retirement. Sub-rule. — A partner, who, on his retirement from tlie partnership, gives notice thereof in the Gazette, is freed from any lia- bility arising out of contracts made by the firm, sub- sequently to his retirement, with persons who tcere not formerly its customers (Fairer v. Deflinne, 1 C. fy K. 580; Godfrey v. Tumbull, 1 Esp. 371). But to dis- charge himself from responsibility arising out of contracts entered into with customers, an express notice must be given, unless it can be proved that the customer knew of the retirement (Hart v. Alexander, 7 C. 8f P. 746). In both cases the retired partner continues liable on contracts made before his withdrawal. A dormant partner, except as regards persons who knew him to be a partner, is not obliged to give notice of his retirement to save himself from liability on contracts entered into after that event (Farrer v. Deflinne, sup.). PAET II. THE CONSTITUENT PARTS OF A CONTRACT AND ILLEGAL AND FRAUDULENT CONTRACTS. Chapter I. — The Consent of the Parties. II. — The Consideration. III. — The Promise. IV. — Contracts Illegal by Common Law. V. — Contracts Illegal by Statute. VI. — Fraudulent Contracts. PART II. THE CONSTITUENT PAETS OF A CONTEACT. OHAPTEE I. The Consent of the Parties. Having thus considered the parties to a contract, we now come to deal with the contract itself, that is to say, to discuss each of those particular factors that must exist before there can he a valid simple contract. They are these — 1. The Consent of the Parties : 2. The Consideration : 3. The Promise. I. — Consent. Mutuality of Consent. Rule 49. — In order that there may be a binding simple contract, it is necessary that the proposal of the one party should be assented to and accepted by the other in the exact terms in 74 CONSTITUENT PARTS OF A CONTRACT. which it is made : for until it is so, the parties are never ad idem, or " of one mind," as it is termed, and the proposal can be retracted {Jackson v. Galloway, 6 Scott, 786 ; see CUtty, 8). " A contract," it has been said, " includes a con- currence of intention in two parties, one of whom promises something to the other, who, on his part, accepts such promise. A pollicitation is a promise not yet accepted by the person to whom it is made. Pollicitatio est solius offerentis promissum. A pollicita- tion, according to the rules of mere natural law, does not produce what can be properly called an obligation, and the person who has made the promise may re- tract it any time before it is accepted : for there can- not be any obligation without a right being acquired by the person in whose favour it is contracted against the party bound. Now as I cannot by the mere act of my own, transfer to another a right in my goods, without a concurrent intention on his part to accept them ; neither can I by my promise, confer a right against my person, until the person to whom the promise is made has, by his acceptance of it, con- curred in the intention of acquiring such right" (Pothier on Obi., p. 1, c. 1, s. 1, art. 2). Examples : — (1) An unqualified allotment of shares was applied for in a company about to be formed, and, when the allotment was made, there was a condition attached thereto that the shares were to be "not transferable." Held, that there was no binding contract between CONSENT OF THE PARTIES. iO the applicant and the company, as the acceptance contained a proviso not stated in the proposal {Duke v. Andrews, 2 Ex. 290). (2) A. agreed in writing to give twenty guineas for a mare, if she were warranted to he sound and quiet in harness; the plaintiff replied warranting the animal sound and quiet in double harness. Held, that the correspondence evidenced no contract be- tw6en the parties {Jordan v. Norton, 4 M. fy W. 155). (3) The plaintiff, who proposed to enter the service of the defendant, wrote as follows : — " Eeferring to my conversation with you, I have now the pleasure to state my willingness to enter the service of your firm for one year on trial, on the following terms, viz., a list of merchants to he regularly called on hy me, to he made, and corrected as occasion requires. My salary for the year to he 120/., and, in addition, a commission of §(/. per piece on all sales effected, or orders taken, hy myself, etc. If the terms herein specified are in accordance with your ideas, kindly confirm them hy return, and I will prepare to enter on my duties in your warehouse on Monday morning next." The defendant, on the following day, re- plied: — "Yours of yesterday embodies the suhstance of our conversation and terms. If we can define some of the terms a little clearer it might prevent mistakes; hut I think we are quite agreed on all. "We shall, therefore, expect you on Monday. I have made a list of customers, which we can consider to- gether." Held, that these two letters did not con- stitute a binding contract in writing, the defendant's 76 CONSTITUENT PARTS OF A CONTRACT. answer not being an absolute and unqualified accept- ance of the plaintiff's offer (Appleby v. Johnson, L. R., 9 C. P. 158). (4) The agents of A., who had a lease of premises, No. 22, Belgrave Eoad, to dispose of, wrote to B. as follows : — " "We have been requested by Mrs. D. to find her a lodging-house in this neighbourhood ; and we forward for your approval particulars of two which we think most likely will suit." Inclosed were particulars of two houses, one of which is No. 22, Belgrave Eoad, the terms for which were stated to be — " Premium 250 guineas ; rent 80£ ; and certain fixtures and planned furniture to be taken at a valuation." B. replied as follows : — " I have decided on taking No 22, Belgrave Eoad, and have spoken to my agent, Mr. 0., of &c, who will arrange matters with you, if you will put yourselves in communication with him. I leave town this after- noon, so if you have occasion to write please address to Cirencester." Held, that these two letters did not constitute a complete agreement binding on the defendant {Stanley v. Doicdesicell, L. R., 10 C. P. 102). On this subject the following cases may be also consulted : — In re Rolling Stock Co. of Ireland, Shakleford's case (L. R., 1 Ch. 567) ; In re Universal Banking Co., Roger's case (L. R., 3 Ch. 633) ; In re Patent Paper Manufacturing Co. (L. R., 5 Ch. 294) ; In re Leeds Banking Co. (L. R., 1 Eq. 225) ; Jackson v. Turquand (L. JR., 4 H. L. 305) ; In re Richmond Hill Hotel Co. (L. R., 2 Ch. 527). Acceptance by Letter. Rule 50. — Where CONSENT OF THE PARTIES. 77 an offer which can be accepted by letter is accepted so unconditionally, the contract is completed and becomes binding the instant the letter is posted, even though it should never reach its destination (Dunlop v. Higgins, 1 H. L. Ca. 381 ; Harvey v. Johnston, 6 C. B. 304 ; Duncan v. Topham, 8 C. B. 225 ; In re Imperial Land Co. of Marseilles, Hams' case, L. R., 7 Ch. 587). (1) In the case last cited a letter applying for shares in a company was posted and duly received by the directors thereof. A committee in due course was appointed, and allotted to the applicant 100 shares, and the secretary posted a letter addressed to him informing him of the allotment. The letter was received hy the applicant, but before he received it, he had sent a letter by post refusing to accept the shares. Held, that the contract was completed the moment the letter announcing the allotment of the shares was put into the post. (2) The facts in Dunlop v. Higgins were shortly these. Dunlop made an offer by post to Higgins, who, according to the usual custom of merchants, was bound to post his answer accepting the offer on a particular day. This he accordingly did. In the ordinary course of post, the letter would have arrived at Glasgow at 8 a.m. the following day but one, but, owing to. the slippery state of the road, it failed to do so till 2 p.m. Held, that Dunlop was bound by the 78 CONSTITUENT FAK.TS OF A CONTRACT. acceptance, notwithstanding that it failed to reach him at the proper time. (3) In Duncan v. Topham, the jury were directed that if a letter accepting the offer made had been lost through the negligence of the post-office, the contract would, nevertheless, be complete ; and, on a motion for a new trial, this ruling was upheld. A distinction seems to have been drawn in The British American Telegraph Co. v. Cohort (L. B., 6 Ex. 108), between the case of a letter being only delayed in the post, and of one wholly lost therein ; but this case is disapproved of in Hams' case, and can no longer be considered law (see, also, In re Imperial Land Co. of Marseilles, sup.; Wall's case, L. B., 15 Eq. 18). Acceptance of Offer with. Intimation that a Formal Contract is to be subsequently- prepared. Rule 51. — An intimation in the written acceptance of a tender that a contract will be afterwards prepared, does not prevent the parties from becoming bound to perform the terms in the tender and acceptance re- spectively mentioned, if the intention of the parties was thereby to enter into an agree- ment, and if the preparation of the contract was contemplated merely for the purpose of expressing the agreement already arrived at in more formal language (Lewis v. Brass, L. R., 3 Q. B. D. 667). CONSENT OF THE PARTIES. 79 In that case the plaintiff, who had been desirous of making certain alterations in his premises, had invited several huilders to state the sum for which they would undertake the work. The defendant sent in a tender which the plaintiff's architect accepted in writing, adding that the contract would he prepared by the plaintiff's solicitors, and would be ready for signature in the. course of a few days. The defendant subsequently withdrew his tender, and the plaintiff, being injured thereby, brought his action for breach of contract. It was argued, on behalf of the defendant, that there had never been an unconditional acceptance of the tender, and that there had been an additional term annexed thereto. This contention, however, was overruled, and the defendant was held liable. " "When the existence of a contract is to be gathered from a correspondence," remarked Cotton, L. J., " there must be an unqualified acceptance of the offer, and no term must be introduced. If a new term is introduced there is no contract. It often happens that the language used is ambiguous, and doubts arise whether the parties are ad Mem. If the plaintiff's architect, by his letter, introduced new terms, the acceptance was not unqualified ; but I do not think that he did, and, if it were not for the reference to the preparation of a subsequent contract, it could not have been argued that the contract was incomplete. No new terms as to the execution of the works or payment of the price are mentioned, and, if any other terms were contemplated at the time of the negotiations, it was competent to the 80 CONSTITUENT TAETS OF A CONTRACT. plaintiff not to insist upon them. I think that the rule of construction, laid down in Crossk;/ v. Maycock (L. R., 18 Eq. 180), is correct, and that the accept- ance of an offer accompanied by the expression of a wish for a more formal instrument is sufficient to enable a court of justice to hold that a final agree- ment has been arrived at. The defendant has relied upon Eossiter v. Miller (L. E., 5 Ch. B. 648). I do not think that that case is at variance with our decision: there the court held that upon the con- struction of the documents no final contract had been arrived at ; and it is to be observed tbat by the con- ditions the purchaser was 'required to sign a contract.' The language used was different from that in the present case, and the decision is no authority against the conclusion to which we have come." Mutuality of Obligation. Eule 52. — It is, as a general rule, necessary not only that there should be a mutuality of consent, but that there should be a mutuality of obligation ; or in other words, that the contract should be as binding upon the one party as upon the other (see Chitty, 13). There are, however, many cases in which one of the contracting parties would be bound to perform what he has undertaken to do, although there is no liability imposed by the contract upon the other ; thus, — 1. The plaintiffs advertised for tenders for the supply of stores for twelve months. The defendant CONSENT OF THE PARTIES. 81 sent in a tender to supply the stores for the period named "in such quantities as the company's store- keeper might order from time to time," and the plaintiffs accepted his tender. It was held, that there was a binding contract upon the defendant to supply the goods, although the plaintiffs were under no legal liability to order any {Great Northern JR. Co. v. Witham, L. E., 9 C. P. 16). 2. Again, to put a case mentioned by Parke, B., in Kennaivay v. Treleavan, 5 M. cjf W. 501 : If a person said to another, " In case you choose to em- ploy this man as your agent for a week, I will be responsible for all such sums as he shall receive during that time and neglect to pay over to you ;" the person who so undertakes to be responsible is answerable, should there be any default made ; but, on the other hand, no action will lie by him against the person indemnified for not taking the man into his service. 3. So, too, as we have seen, a person who has at- tained his majority is bound by a contract with an infant, though, as a rule, the infant is not {Holt v. Ward, 2 Str. 973; ante, p. 14). In like manner, a person who has not signed a contract coming under the Statute of Frauds, cannot be sued thereon ; although he may sue the other contracting party who has {Laythoarp v. Bryant, 3 Scott, 238). 82 CONSTITUENT PARTS OF A CONTRACT. CHAPTEE II. The Consideration. Rule 53. — Ex nudopacto non actio oritur; and in order that a promise may become binding as a simple contract it must be supported by a valuable consideration [Deacon y. Gridley, 15 C. B. 295 ; 2 Bl. C. 445 ; see McManus v. Bark, L. B., 5 Ex. 65). "What is a Valuable Consideration. — A valuable consideration may be defined as being any act of tbe promisee's from which the promisor (or some person at his request) derives a benefit or an advantage ; or any labour, trouble, or inconvenience to, or charge upon, the promisee, at the request of the promisor. The following examples will be useful to show what has, and what has not, been held sufficient to constitute a valuable consideration; so as, on the one hand, to support and render binding a promise, and, on the other, to cause it to fail to have any legal effect as a contract by reason of it being a mere nudum pactum. (1.) A. agreed in writing that, in consideration that B. would appoint him to receive a sum of money for a lace machine (agreed for between B. and C), he would take the machine and pay the balance CONSIDERATION. 83 ft should there be any default on the part of C. C. did make default. Held, that this agreement of A.'s was not binding on him for want of a consideration (Bates v. Cort, SD.SfB. 676 ; 2 B. 8f ft 474). (2.) An agreement whereby a person undertakes, on consideration that his debtor will pay a portion of his debt, to let him off the rest, is void for want of a consideration (Overton v. Banister, 3 Mare, 503 ; Cumber v. Wane, 1 8m. L. Ca. 341) ; though, if there be some additional advantage to the creditor, as if the full debt was not payable till three months, and he agreed to receive a part thereof at once in satisfaction of the whole, the case would be different (Pinnel's case, 5 Rep. 117). (3.) Forbearance to Sue— Forbearance to sue is a sufficient consideration for any promise based thereon {Harris v. Venables^ L. JR., 7 Ex. 285; Temple v. Pink, 1 Ex. 74 ; Oldershaw v. King, 2 M. 8f JY. 517) ; as, also, is the compromise of a disputed claim, made bona fide, even although it ultimately appears that the claim was wholly unfounded (Callishery. Bischoffsheim, L. R., 5 Q. B. 449). In that case the declaration alleged that the plaintiff had stated that certain monies were due to him from the government of H., and was about to take proceedings to enforce payment ; and, there- upon, in consideration that the plaintiff would for- bear taking such proceedings for an agreed time, the defendant promised to deliver to the plaintiff certain debentures. Breach, that the defendant did not deliver the debentures. Plea, that at the time g2 84 CONSTITUENT PARTS OF A CONTRACT. of making the agreement no money was due to the plaintiff from the government of H. Held, on demurrer, that the plea was no answer to the declaration. (4.) Confidence. — Where a person undertakes, without consideration, to do a certain act for another, though no action will lie against him for not doing the same, yet, if he once enters upon his undertaking, the trust or confidence reposed in him will be a sufficient consideration to oblige'him to perform it properly. Accordingly, where A. agreed, without any con- sideration for his promise, to take up several hogs- heads of brandy belonging to B., then in a certain cellar, and to carry them to another and there to store them, and he and his servants so negligently put them down that one of the casks was staved and a great quantity of brandy lost, it was held that an action of assumpsit would lie against A. (Coggs v. Bernard, 1 Sm. L. Ca. 188). " It is objected," said Holt, C. J., " that there is no consideration to ground this promise upon, and, therefore, the undertaking is but a nudum pactum. But to this I answer that the owner's trusting him with the goods is a sufficient consideration to oblige him to a careful management. Indeed, if the agree- ment had been executory to carry these brandies from one place to another on such a day, the defen- dant had not been bound to carry them. But this is a different case, for assumpsit does not only signify a future agreement, but, in such a case as this, it signifies an actual entry upon the thing and taking CONSIDERATION. 85 the trust upon himself ; and if a man will do that, and miscarries in the performance of his trust, an action would lie against him for that, though nobody could have compelled him to do the thing." (5.) Assignment of a Chose in Action. — The assignment of a debt, or other chose in action, is a valuable consideration, and mil support a promise made by the assignee to the assignor {Mousdale v. Birchall, 2 Bl. R. 820). As to how a chose in action may be assigned, see the Judicature Act of 1873, s. 25 (6). The plaintiff agreed with C. for the purchase of certain houses. The defendant agreed to give the plaintiff 40/. for his bargain ; the houses were after- wards, at the plaintiff's request, conveyed to a nominee of the defendant. Held, that the transfer of the bargain was a sufficient consideration for the promise of the defendant {Price v. Seaman, 4 B. 8f C. 528). (6.) Natural Love and Affection and Moral Consideration. — It is now clearly settled that a con- sideration consisting only of natural love and affection, or of a promise to do something that the promisor is only morally bound to do, is not sufficient {Beaumont v. Reeve, 8 Q. B. 485 ; Jennings v. Brown, 9 M. 8f W. 496 ; Tweddle v. Atkinson, 30 L. J., Q. B. 265). In Beaumont v. Reeve, the defendant, who had lived with the plaintiff and had seduced her, and thereby injured her character, so that it was im- possible for her to earn an honest livelihood, under- took to pay her a yearly sum towards her maintenance. 86 CONSTITUENT l'AKTS OF A CONTRACT. On his failing to do so, and an action being brought against him, he was held not liable, as the past seduction, however much in a moral point of view it imposed upon the defendant a duty to provide for the plaintiff, was no legal consideration for his promise. Bills of Exchange. Sub-rule. — In hills of ex- change and other negotiable instruments the law always presumes a consideration (Philliskirk v. Pluckivell, 2 Jf, 8f S. 398) ; nor can the defendant call upon the plaintiff to prove that he gave any, unless he can show a prima, facie case of the bill being lost, stolen, or tainted with fraud or other illegality (Bailey v. Bidwell, 13 M. 8f W. 76; Harvey v. Towers, 6 Ex. 656; Berry v. Alderman, 14 C. B. 95). Adequacy of Consideration. Rule 54. — The consideration -which is to support the promise must (as has been stated) be of some value, but, unless the case savours of fraud, &c, the courts will not enter into its adequacy. Thus, in Wilkinson v. Oliveira (1 Bing. N. C. 490), the defendant had promised to give 1,000J. to the plaintiff in consideration of his giving him a cer- tain letter, by means of which he had been able to close sundry disputes between himself and some third parties. Held, that there was a good con- sideration for the defendant's promise, and that he was bound thereby. For an example of a consideration being of such CONSIDERATION. 87 little value as to be colourable, see Hitchcock v. Coker (6 A. 8f E. 438). f Privity. Rule 55. — In order that a plain- tiff may succeed in an action on a simple contract, it is necessary that the consideration on which he relies should have proceeded from him, or from some third person "moved or affected" by him ; otherwise, however nearly he may be connected to the person from whom it does proceed, there is no privity, or "connection or bond of union" (per Wilde, C. J., Blandy v. De Burgh, 6 C. B. 634) between himself and the defendant, and qua that particular transaction they are strangers one to another (Tweddle v. Atkinson, sup.). (1.) The facts in the last-cited case were as follows : The father of a young lady who was about to be married undertook to pay 2001. to his future son-in- law, if the father of the latter would also undertake to give 1001. This agreement was accordingly entered into. On an action being brought by the son-in-law against his father-in-law, it was held not to be maintainable, on the ground that the considera- tion for his promise did not move from the plaintiff. (2.) The defendant was an office-keeper of the Exeter and London coach and servant to B., a pro- prietor at Exeter, where the office kept by the defendant was. The defendant from time to time 88 CONSTITUENT PARTS OF A CONTRACT. made up the accounts of the profits due to the several proprietors, and sent the same to the parties con- cerned, taking the money from the balance of B.'s, which he had in hand. On one occasion the defen- dant sent to the plaintiff, a proprietor, a packet pur- porting to contain 231. then due to him, hut in reality containing 201. The plaintiff sued the defendant for monies had and received to his use. Held, that he ■was^ not liable, there being no privity of contract between himself and the plaintiff {Howell v. Baft, 5R 8f Ad. 504). (3.) A., being defendant in an action brought by B., paid the debt and costs to his own country attorney for transmission to B. The attorney sent a cheque exceeding the amount to his own town agent, directing him to pay the costs and debt out of it. The agent acknowledged the receipt by letter to the country attorney, and therein promised to apply the money as directed, but he retained it in reduction of a debt due to him from the attorney. Held, that there was no sufficient privity to support an action for money had and received by A. against the agent (Cobb v. Beclie, 6 Q. B. 930; 9 Jar. 439 ; 14 L. J., Q. B. 108). (4.) The acceptor of a bill paid a sum of money into the bank to be appropriated to the payment thereof. The money was duly received and entered in the books. The drawers, owing to the bank not having taken up the bill, were obliged to pay it. Held, on action being brought by the drawer against the banker, that there was no privity between them, CONSIDERATION. 89 the contract to pay being only between the acceptor and the banker (Moore v. Bushell, 27 L. J., Ex. 3 ; see Hill v. Eoyds, L. R., 8 Eq. 290). Kinds of Consideration. — Consideration, in regard to time, may be either executed, executory, contemporaneous, or continuing. (1.) An executed consideration is one that is altogether passed. (2.) An executory consideration is one that has yet to be performed. (3). A contemporaneous, or, as it is sometimes called, a concurrent consideration, is denned by Mr. Smith, in his Manual of Common Law, as " one which is contemporaneous with a promise made in consequence of it, or one which arises where two persons simultaneously and reciprocally promise to do certain things, the promise of the one party being the consideration for the promise of the other. (4.) And, lastly, a continuing consideration is one which is partly past and executed, but is still con- tinuing at the time of the promise. Request. Rule 56. — The consideration must be moved by a previous request, ex- press or implied, proceeding from the pro- misor to the promisee {Lampleigh v. Braith- ivaite, 1 Sm. L. Ca. 141). In the case of executory, concurrent, and continuing con- siderations the request is always implied, and need not be proved or declared; but 90 CONSTITUENT PABTS OF A CONTRACT, where the consideration is executed, it must be express, except in the cases hereinafter mentioned. ' (1.) The defendant's testator wrote to his nephew, " I am glad to hear of your intended marriage with E. N., and, as I promised to help you at starting, I am happy to tell you that I will pay you 1501. at starting, during my life ? and until your annual income, from your profession of a chancery barrister, shall amount to 600 guineas." The plaintiff married E. N., and on the uncle's death, there heing certain arrears of the annuity due, he sued the executors. Held, that the above letter amounted to a request to the plaintiff to marry E. N., and that consequently the promise was binding {8hadwe.ll v. Shadivell, 9 C. B., N. 8. 159 ; 30 L. J., C. P. 97). (2.) In Tipper v. Bichnell (3 Bing. N. C. 710), the declaration stated that the defendants, being in pos- session of certain mortgage deeds, of which H. R. was desirous to obtain an assignment by the payment of 5001, the plaintiff consented, at H. R.'s request, to accept bills to that amount (drawn by H. B..), upon H. E. promising that the defendants would deliver the mortgage deeds to the plaintiff as a security : that the defendants, in consideration of the plaintiff accepting the bills, undertook to deliver the deeds to him upon his paying them the amount of the bills. Held, that the declaration disclosed a good cause of action. (3.) In Massey v. Goodall (17 Q. B. 310), the de- claration alleged that the defendant had become and was tenant from year to year to the plaintiff, on cer- CONSIDERATION. 91 tain stipulations, and that in consideration thereof the defendant then promised the plaintiff that he would pay the plaintiff all such penalties, &c. Breach, nonpayment. Held, that the declaration disclosed a good cause of action. " It is not alleged," remarks Patteson, J., " that he (the defendant) became and was tenant at his request; but I take it that it is only necessary to lay a re- quest, where the consideration was wholly bygone and executed at the time of the promise, and that it is not necessary, when it is a continuing considera- tion, as this is, where the terms would continue, after the promise, throughout the whole tenancy." (4.) B.'s servant was arrested, and H. of his own accord stood bail for him, and procured him his re- lease : in consideration of which B. afterwards pro- mised H. to save him harmless. H., having been compelled to pay the servant's debt, brought an action against the master to recover the amount. Held, that " as the master did never make request to the plaintiff to do so much, but he did it of his own head," the action would not lie {Hunt v. Bate, Dyer, 272). When a Request is Implied in Executed Consideration. Sub-rule. — In the following cases, a previous request is implied, notioithstanding the fact that the consideration is past and executed. 1. When the consideration consists in the plaintiff having been compelled to do that which the defendant was legally compellable to do. Thus, if A. becomes surety for B. at his request, and is subsequently compelled to pay his (B.'s) debt 92 CONSTITUENT PARTS OF A CONTRACT. to C, A, may recover from B., without proving that he paid C. at B.'s request. The request to pay the money is implied by law from the fact of entering into the engagement {Batard v. Hawes, 2E.8fB. 296). 2. When the consideration is beneficial to the de- fendant, and has been actually adopted and enjoyed by him {Story on Con. i. 553). This may be illustrated by an example given by Eolfe, B., in Bird v. Brown (4 Exch. 798). If A., unauthorized by B., makes a contract on his behalf with 0., and B. afterwards recognizes and adopts it, he may be sued thereon by C. ; and the fact that the previous request by B. was not expressed is im- material. 3. Where the consideration is of such a nature that it must have been moved by a previous request of the de- fendant, as in the case of money lent {Smith, L. Ca. 147). In each of these cases, as will be seen hereafter, the promise to indemnify is implied as well as the request. 4. When the consideration consists in the plaintiff having voluntarily done that which the defendant was legally compellable to do, and the defendant has after- wards expressly promised to indemnify him. As if A. owed a debt to B., and 0. paid it for him, and A. subsequently promised to repay C. the sum so expended {Wing v. Mill, 1 B. fyAld. 104; Paynter v. Williams, 1 C. 8[ M . 818). " It is now clearly settled that a previous request will not be implied where the plaintiff has voluntarily done that which the defendant was only morally com- pelled to do ; not even though the defendant in con- CONSIDERATION. 93 sideration thereof has expressly promised to reimburse the plaintiff (Eastwood v. Kenyan, 11 Ad. fy E. 438; Beaumont v. Reeve, sup.). Impossible Considerations. Rule 57. — In order to found a consideration for a pro- mise, it is necessary that it should be capable of being performed both in fact and in law ; and the same rule applies when part of the consideration is capable of performance, but it is impossible, either in fact or in law, for the contractee to perform it to its fullest extent (Nerot v. Wallace, 3 T. R. 17, 23). (1.) In that case the facts were as follows: — A friend of a bankrupt promised to pay to his assignees all such sums as he, the bankrupt, was charged with having received, but not accounted for, in considera- tion that the assignees, on their part, would undertake to forbear to examine him, and that the commis- sioners would desist from doing so. In his judgment in this case, Lord Kenyon re- marked, " I do not say that this is a nudum pactum, but the ground on which I found my judgment is that every person who, in consideration of some ad- vantage, either to himself or another, promises a benefit, must have the power of conferring that benefit up to the extent to which that benefit professes to go, and that, not only in fact, but in law. Now the promise made by the assignees, which was the consi- deration of the defendant's promise, was not in their power to perform, because the commissioners had, 94 CONSTITUENT PARTS OF A CONTRACT. nevertheless, a right to examine the bankrupt, and no collusion of the assignees could deprive the cre- ditors of the right of examination which the commis- sioners would procure them." (2.) So, also, where the consideration is in itself, and not in law, impossible, as should A. promise to go from Westminster to Borne in' an hour, or to make water flow up hill, &c. (see Chitty, 45). Sub-rule. — Where, however, the consideration is only difficult, or it is only improbable that it can be per- formed, or it is " in respect to the defendants ability" and not because the thing to be done is in itself naturally or legally impossible, that the impossibility arises, the consideration, as a general rule, will be valid and binding (Thornboroio v. Whitacre, 2 Ld. Ratjm. 1164; see Chitty, 46). It is on this ground that the owner of a ship, who had agreed to load her with a certain cargo in a given time, and was prevented from so doing by a severe frost, was held liable; he having himself to blame for not having guarded against such a contingency by inserting a provision in his contract (Kearon v. Pearson, 7 S. 8f N. 386). See further on this sub-rule, TMis v. Byers (L. R., 1 Q. B. D. 244) ; Thorn v. Mayor of London (L. R., 1 H. L. Ap. Ca. 120); Paradine v. Jane {Aleyn, 26). Exception to Sub-rule. — To this sub-rule there are various exceptions, as where the consideration con- sists in a promise to do something for which the personal skill or labour of the contractee is required, and, owing to the act of Q-od, he is rendered incapable CONSIDERATION. 95 of doing the same (Robinson v. Davison, L. JR., 6 Ex. 219; Farrow v. Wilson, L. R., 4 ft P. 744; Boast v. Firth, L. R., 4 ft P. 1) ; or, again, "where from the nature of the contract it appears that the parties must from the beginning have known that it could not be fulfilled, unless, when the time for the fulfilment of the contract arrived, some specified thing continued to exist, so that when entering into the contract they must have contemplated such continued exist- ence as the foundation of what was to be done; then, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed a positive contract, but subject to the im- plied condition that the parties shall be excused in case before breach performance becomes impossible, from the perishing of the thing, without default of the contractee" (Taylor v. Caldwell, 3 B. fy S. 826). See further, Chapter on Discharge of Obligation. As an example of this latter exception, the follow- ing affords a good illustration: — The defendant in March, 1872, agreed to sell to the plaintiff 200 tons of regent potatoes, grown on land belonging to the defendant, at a certain price, to be delivered in September and October, 1872. The defendant, at the time of the contract, had sixty- eight acres ready for planting potatoes, part of which was already sown, and the rest was sown afterwards. This quantity of land was enough in ordinary years to produce more than 200 tons. From no fault of the defendant, but in consequence of a potatoe-blight which occurred in August, the crop failed, and the defendant was able to deliver only eighty tons : — • 96 CONSTITUENT PARTS OF A CONTRACT. Held, in an action for non-delivery of the remain- der, that, the contract being for the sale of part of a specific crop, the case was within the principle of Taylor v. Caldwell (32 L. J., Q. B. 164 ; 3 B. 8f Sm. 826) ; and that the delivery of the potatoes being pre- vented by vis major, the defendant was excused from the performance of the contract {IToicell v. Coupland, L. R., 9 Q. B. 62, aff. in 1 C. A., 1 Q. B. D. 263 ; see Clifford v. Watts, L. R., 5 C. P. 577 ; Appleby v. 'Meyers, L. R., 2 C. P. 651). Illegal Considerations. Rule 58. — The consideration must be lawful, for otherwise, though the illegality thereof be partial only, the contract is rendered void ( White v. Jones, 1 Scott, 730). The subject of illegal consideration will be found fully discussed in a subsequent chapter. Money paid on a Consideration that has Failed. Rule 59. — "Where money has been paid on a consideration that has wholly, and not merely partially, failed, it may be re- covered back [Hunt v. Silk, 5 East, 449). Accordingly, a person may recover money given for a forged bill or bank note {Jones v. Ryde, 5 Taunt. 488) ; or for shares in a company that has never been formed {Moore v. Garwood, 4 Ex. 681) ; or paid as deposit on a contract for the sale of goods or lands that cannot be completed by the vendor {Blackburn V. Smith, 2 Ex. 783). As has been CONSIDERATION. 97 pointed out in the rule, it is absolutely necessary that there should have been a complete failure of the con- sideration, or should it consist of distinct and severable parts, then, a complete failure of one or more of such parts ; because, as long as the plaintiff has obtained that for which he bargained, it is immaterial — so far as an action for money had and received goes — whether it is of the value or description he contracted for, or not (Lambert v. Heath, 15 M. 8f W. 486). r. 98 CONSTITUENT PARTS OF A CONTRACT. CHAPTEE III. The Promise. The Promise, the remaining part of the contract we have to consider, may be express or implied. Express Promises. Rule 60. — The pro- mise, like the consideration, must be" legal. Where, however, there are several promises, founded upon the same lawful consideration, some of which are legal and others illegal, the contract is only void in respect of the latter, and the former will remain binding, unless, from the peculiarity of the contract, the parts thereof cannot be separated {Price v. Green, 16 M. Sp W. 346; Mac Allen v. Churchill, 11 Moore, 483; see "Illegal Con- tracts"). Implied Promises. Rule 61. — "Where a relation exists between two parties, which involves the performance of certain duties by one of them, and the payment of reward to him by the other, the law will imply, or the jury may infer, a promise by each party to do wbat is to be done by him" [Morgan v. PROMISE. 99 Ravey, 6 H. 6f iV. 276 ; Streeter v. Horlock, 1 Bing. 34; Dugdale v. Lovering, L. R., 10 (7. P. 196). (1) A banker impliedly undertakes with his cus- tomer that he will pay the cheques drawn by him , provided he has money in hand belonging to that customer, and the cheque is presented for payment during proper hours (Marzetti v. Williams, lB.fy Aid. 424). (2) A lessor impliedly promises to make out a good title to the lease he is about to assign or grant ; and, unless he is able to do so, he cannot maintain an action at law against the buyer for refusing to accept the purchase, but is, on the contrary, liable to be sued himself for breach of contract (Souter v. Drake, 5 B. 8f Ad. 992; Stranks v. St. John, L. B., 2 0. P. 376). (3) In Bedhead v. Midland B. Co. (L. B., 2 Q. B. 412; 4 Q. B. 379), citing Brown v. Edgington (2 M. 8f G. 279), Mr. Justice Blackburn remarked, " Where one party to a contract engages to select and supply an article for a particular purpose, and the other party has nothing to do with the selection, but relies entirely upon the party who supplies it, it is to be taken as a part of the contract implied by law, that the supplier warrants the reasonable sufficiency of the article for that purpose." (4) A person who lets a furnished house is, in law, under an implied undertaking that it shall be fit for habitation at the time agreed upon for the tenancy to commence; and, unless it is so, the lessee may h2 100 CONSTITUENT PARTS OF A CONTRACT. rescind the contract {Smith v. Marrable, 11 M, fy W. 5 ; Wilson v. Eatton, L. B., 2 Ex. D. 336). (5) Medical men, solicitors, surveyors, &c, im- pliedly undertake to use reasonable skill and care in the performance of their professional services {Broom, p. 660). Executed. Considerations and Implied Promises. Rule 62. — Where the considera- tion is executed, and has been moved by a previous request, express or implied, the law will, as a general rule, presume a promise by the contractor (see Broom, 326 ; Fish v. Kelly, 17 C. B., N. 8. 194). (1) If a person has been compelled to do that which another was legally compellable to do, the law will not only imply a previous request (as we have seen, p. 92), but it will presume a promise on the part of the latter person to indemnify the former. (2) And, again, where the defendant has adopted and enjoyed the benefit of the consideration — as where goods are sent to him under circumstances that clearly show that a sale, and not a gift, was in- tended — and he keeps and consumes, or uses the same, he will be liable to pay for them (see on this subject Melhado v. Porto Ategre B. Co., L. B., 9 C. P. 503; Phosphate of Lime Co.r. Green, L.B., 7 C. P. 43). (3) If a person has paid money for another, at his request or authority, there is an implied promise raised in law that the latter will repay him {Brittain v. Lloyd, 14 M. $ W. 762). PROMISE. 101 Exception. — In the following cases, though the consideration is executed, and though it was duly moved by a previous request, the law will not imply a promise. (1) "Where a barrister has performed professional services for his client, there is no implied undertaking on the client's part to remunerate him {Kennedy v. Broivn, infra). " The relation of counsel and client in litigation," it was said in that case, " creates the incapacity to make a contract of hiring as an advocate. It follows that the request and promise of the defendant (the client) and the services of the plaintiff (the bar- rister) create neither an obligation, nor an inception of an obligation, nor any inchoate right whatever capable of being completed and made into a contract by any subsequent promise" {per Erie, C. J., in Ken- nedy v. Brown, 13 C. B., N. 8. 677; see also Mostyn v. Mostyn, L. R., 5 Ch. 457). By this it will be seen that a barrister is unable to recover his fees, even where there is an express pro- mise made to him. (2) At common law, physicians were also incom- petent to sue for fees due to them, unless they had expressly stipulated that they were to receive re- muneration for the services performed by them ( Veitch v. Russell, 3 Q. B. 928 ; Leman v. Fletcher, L. R., 8 Q. B. 319). By 21 & 22 Viet. c. 90, s. 31, it is enacted, that physicians, properly registered, may recover reasonable remuneration for their professional services, provided they are not restricted from so doing by any bye-law of the college whereof they 102 CONSTITUENT PARTS OF A CONTRACT. are members. Such a bye-law exists in the College of Physicians (see Sm. L. Ca. 151). (3) An infant to whom goods, other than neces- saries, have been supplied, is, as we have seen, under no legal liability to pay for them. Nor, at common law, is a married woman under any obligation to pay for articles sold, whether they be necessaries or not. (4) Where a person has voluntarily done that which another was legally compellable to do, the law implies no promise to indemnify. Executed Considerations and Express Promises. Rule 63. — A consideration past and executed will support no other promise than such as would be implied by law {per Denman, C. J., in Roscorla v. Thomas, 3 Q. B. 234). (1) So, in that case, it was held that no action would lie against the defendant, a horse-dealer, for breach of warranty in warranting a horse sound and free from vice, when the sole consideration for the warranty was that the plaintiff had, at the request of the defendant, bought a horse. The only promise which the law would imply from such a consideration would be the delivery of the horse upon request. (2) Again, upon an account stated the law implies a promise, on behalf of the debtor, to pay the sum found to be due on request ; consequently, a promise to pay the same on some future day would need a fresh consideration (Hopkins' v. Logan, 5 If. 8f TT. 241). PROMISE. 103 Exception. Sub-rule. — Where the consideration teas originally beneficial to the party promising, yet, if he be protected from liability by some provision of the statute or common law, meant for his advantage, as in the case of a debt due by him being barred by the Statute of Limitation, he may renounce the benefit of that law; and, if he promises to pay the debt, which is only what an honest man ought to do, he is then bound by the laiv to perform it . . . and debts so barred are unquestion- ably a sufficient consideration for every promise, whether absolute or unqualified, qualified or conditional, to pay them. Promises to pay such a debt simply, or by in- stalments, or when the party is able, are all equally supported by the past consideration. But it does not follow that, though a promise revives the debt in such a case, any of those debts will be a consideration to support a promise to do a collateral thing, as to supply goods, or to perform labour {per Parke, B., in Reeves v. Eearnc, 1 M. 8f W. 323; Earle v. Oliver, 2 Ex. 90). 104 ILLEGAL AND FRAUDULENT CONTRACTS. CHAPTER IV. Illegal Contracts generally, and Contracts Illegal at Common Law. In the present and following chapter, where I pro- pose considering the subject of illegal contracts, it must be understood as being immaterial whether the illegality exists *in the consideration or the promise. But for the exception hereinbefore stated (pp. 96,98), the effect of illegality in the one is the same as that in the other. Illegal Contracts generally. Rule 64. — Where the contract, which the plaintiff is desirous of enforcing, be it express or im- plied, is expressly or impliedly forbidden by law, no court will lend him its assistance to give it effect {Cope v. Rowland, 2 M. Sf W. 149). Ex turpi causa non oritur actio. "You shall not stipulate for iniquity," observed Wilmot, C. J., in Collins v. Blantcm (1 Sm. L. Ca. 381). "All writers upon our law agree in this, no polluted hand shall touch the pure fountains of justice." ILLEGAL AT COMMON LAW. 105 Contracts connected with Illegal Trans- actions. Sub-rule. — The test whether a demand, con- nected with an illegal transaction, is capable of being enforced at law, is whether the plaintiff' requires any aid from the illegal transaction to establish his case. A. bet an illegal wager of twenty-five guineas with B. on a horse race, of which 0. agreed to con- tribute ten. A. won and paid C, in the expec- tation of receiving the whole of the amount from B. B. died, and A. never received it. Held, that A. was not entitled to recover the ten guineas from C. which he had paid him, because he could not sub- stantiate his case without going into the illegal transaction, in which both were equally involved (Simpson v. Bloss, 2 Marsh, 542; 7 Taunt. 246). Money paid on Illegal Contracts. Rule 65. — Where the contract is executory, and money has been paid under it by the one party to the other, there is a locus poenitentice , and the party paying may recover it back ; but when once the contract is executed the locus poenitentice is gone, and, if the parties are in pari delicto, the money so paid cannot be recovered (Busk v. Walsh, 4 Taunt. 290 ; Good- hall v. Lounder, 6 Q. B. 464; see Chitty, 591). Presumption as to Illegality. Rule 66. —Where a contract is reasonably capable of being construed in two ways, one of which would make it legal and the other illegal, 106' ILLEGAL AND FRAUDULENT CONTRACTS. the presumption in law being against ille- gality, the former construction is preferred {Lewis v. Davison, 4 M. 6f W. 654). Contracts are illegal either because they are made so by common law or because they are prohibited by statute. Those that are unlawful at common law may be subdivided into — I. — Those that Contravene Public Policy and are Injurious to the State. II. — Those that tend to Violate Morality. I. — Contracts Void on the Ground of Public Policy. The question whether a contract is void on this ground is for the court, when the circumstances raising the question are conceded {Tallis v. Tallis, 1 Ell. 8f Bl. 391). (a.) Contracts in restraint of Trade. Rule 67. — All contracts which have for their object a general restraint of trade are abso- lutely void ; but those which would operate as a partial restraint only are valid provided such restraint is fair and reasonable, and, of course, made upon a valuable consideration (Mitchel v. Reynolds, 1 Sm. L. Ca. 406 ; Mallan v. May, 11 M. Sf W. 653). In all restraints of trade, where nothing more appears, the law presumes them bad; but if the ILLEGAL AT COMMON LAW. 107 circumstances are set forth that presumption is ex- cluded, and the court is to judge of those circum- stances and determine accordingly; and if upon them it appears to be a just and honest contract, it ought to he maintained {per Parkes, 0. J., Mitchel v. Reynolds, sup.). Partial Restraint. Sub-rule. — A restraint may be partial either in respect of time or of space. If the space is unlimited the contract mil be void, even though the time is limited (see Ward v. Byrne, 5 M. 8; W. 548) ; but, provided the space is limited, the contract may be valid, notwithstanding the fact that the time is unlimited {Catt v. Tourle, L. R., 4 Ch. 659). Reasonable Restraint. — " We do not see how a better test can be applied to the question, whether reasonable or not, than by considering whether the restraint is such only as to afford a fair protection to the interest of the party in favour of whom it is given, and not so large as to interfere with the interest of the public. Whatever restraint is larger than the necessary protection of the party can be of no benefit to either; it can only be oppressive, and, if oppressive, it is in the eye of the law unreasonable {per Tindal, C. J., in Homer v. Graves, 7 Bing. 744). Examples of Rule. — (1) In the case last cited an agreement by which a surgeon dentist undertook that he would not practise within 100 miles of York, was held void, the distance of 100 miles being con- sidered unreasonable. 108 ILLEGAL AND FRAUDULENT CONTRACTS. (2) In Mallan v. May {sup.), the defendant, in consideration that the plaintiff would instruct him in the business of a surgeon dentist, agreed, after the expiration of his term, not to cany on the business in London, or in any of the towns or places in England or Scotland where the plaintiff might have been practising before the expiration of the said service. Held, first, that the agreement not to practise in London was valid, the limit thereof not being too large for the profession in question ; secondly, that the stipulation not to practise in the towns where the plaintiff might have been practising during the service was an unreasonable restriction, and, therefore, illegal and void ; and, thirdly, that the stipulation as to not practising in London was not affected by the illegality of the other agreement. It would seem that the populousness of the district cannot be taken into consideration, when deciding as to the reasonableness or unreasonableness of the restriction (Parke, ~B.,per). (3) In Proctor v. Sargent (2 Scott, N. E. 289), a contract by a milkman not to carry on his trade within five miles of Northampton Square, Middlesex, was held valid. So, also, in Buna v. Guy (4 East, 190), an agreement by an attorney not to practise in London and 150 miles round; and, in Harms v. Parsons (32 Bear. 328), a covenant not to carry on the trade of a horsehair manufacturer within 200 miles of Birmingham. (4) Upon the formation of a company for the purchase and working of a certain process of manu- facture introduced into this country from America, ILLEGAL AT COMMON LAW. 109 the agreement for the purchase contained a provision that the vendors would "not directly or indirectly carry on, nor will they, to the best of their power, allow to he carried on by others, in any part of Europe any company or manufactory having for its object the manufacture or sale of productions now manufactured in the business or manufactory" (of the vendors), "and will not communicate to any person or persons the means or processes of such manufacture, so as in any way to interfere with the exclusive enjoyment by the purchasing company of the benefits hereby agreed to be purchased." Held, 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 purchasers, and was capable of being enforced against the vendors {Leather Cloth Co. v. Lorsont, L. R., 9 Eq. 345). "All the cases," said Sir William James, V.-C, " when they come to be examined, seem to establish this principle, that all restraints upon trade are bad, as being in violation of public policy, unless they are natural and not unreasonable for the protection of the parties in dealing legally with some subject- matter of the contract. The principle is this : public policy requires that every man should be at liberty to work for himself, and should not be at liberty to deprive himself or the state of his labour, skill, or talent by any contract that he enters into. On the other hand, public policy requires that when a man has by skill, or by any other means, obtained some- thing which he wants to sell, he should be at liberty 110 ILLEGAL AND FRAUDULENT CONTRACTS. to sell it in the most advantageous way in the market, and, in order to enable him to sell it advantageously in the market, it is necessary that he should be able to preclude himself from entering into competition with the purchaser. In such a case the same public policy that enables him to do that, does not restrain him from alienating that which he wants to alienate, and, therefore, enables him to enter into any stipu- lation, however restrictive it is, provided that restric- tion, in the judgment of the court, is not unreasonable, having regard to the subject-matter of the contract." (5) In Allsop v. Wheatcrqft (L. B., 15 Eq. 59), a clerk and traveller to a firm of brewers agreed not to directly or indirectly sell, procure orders for, or re- commend, either on his own account or for any other person, during his service, or within two years after- wards, any Burton ale or porter brewed at Burton, or offer for sale as such, other than the ale, beer or porter brewed by the plaintiffs. Held, that the agree- ment was void, the above restrictions being unneces- sarily extensive. See further on this subject Carter v. Williams {L. B., 9 Eq. 678) ; Catt v. Tourle (L. B., 4 C/i. 654) ; JossehjiiY. Parson (L. B., 7 Ex. 127). (Jo.) Restraint on Marriage. Rule 68. — Contracts which tend to operate as a general restraint upon marriage are illegal and void [Lowe v. Peers, 4 Burr. 2225). (1) In that case the defendant had executed a deed which contained the following undertaking : " I do ILLEGAL AT COMMON LAW. Ill hereby promise Mrs. L. that I will not marry with anybody besides herself ; if I do, I agree to pay to the said C. L. 100/?. within three months after I shall marry anybody else." Held, that the con- tract, not being a contract to marry the plaintiff, but "not to marry anybody else," was illegal, as the plaintiff was under no obligation to marry the defen- dant, and, should she refuse to do so, the restriction would bar the man from marrying at all. (2) A., being a -widow, gave B. a bond by which she undertook to pay him 100/. if she should marry again ; and he gave her a bond to pay her executors a like sum if she should not marry again. The bond was ordered to be delivered up and cancelled, as being in restraint of marriage {Bakery. White, 2 Vern. 215). Note. — In these cases (and in a few others which I have had to cite) the contract was by deed, but the principle, it must be understood, is equally applicable to simple contracts. (c.) Marriage Brocage. Rule 69. — Every contract for procuring a marriage for reward is illegal (see Leake on Con. 758). A. undertook by deed to pay B. 500/!. within a certain time after he should be married to a certain lady, if B. would undertake to bring about and pro- . cure such a marriage. The bond was ordered to be cancelled (Sally. Potter, 3 Lev. 411). (d.) Contracts for Future Separation of Husband and Wife. Rule 70. — All con- tracts made in contemplation of, and pro- 112 ILLEGAL AND FRAUDULENT CONTRACTS. viding for, the future separation of husband and wife, are illegal; but contracts made in contemplation of, and providing for, their immediate separation, are valid [Hindley v. Marquis of Westmeath, 6 B. 6f C. 200 ; Jones v. Waite, 9 CI. $ F. 101). In order that such a contract may be binding on the husband, it is necessary that some third party should contract on behalf of the wife, — a husband and wife being unable in law to enter into a binding agreement one with another. For this purpose, in an ordinary separation deed, trustees are interposed, with whom the husband covenants to pay his wife a suit- able allowance, and they, on their part, to indemnify him against her debts, &c. (As to the effect in Equity of not interposing trustees, see Poll, on Con. 62). (e.) Contracts impeding Administration of Justice. Rule 71. — All contracts which would impede, or obstruct, the due admi- nistration of public justice are illegal. Compounding Felonies and Public Mis- demeanours. ' Sub-rule. — The law mil permit a compromise of any offence, though made the subject of a criminal prosecution, for ichich the injured parti/ might recover damages in an action ; bid if the offence is of a public nature, no agreement can be valid ichich is made for the purpose of stifling its prosecution (Keir v. Leeman, 6 Q. B. 308; 9 Q. B. 371). (1) So, in that case, it was held a person might CONTRACTS .ILLEGAL AT COMMON LAW. 118 lawfully agree to compromise an indictment for a common assault upon himself; but, on the other hand, not where the agreement was to withdraw a prosecution for an assault accompanied with riot. (2) A promissory note, given in consideration of the payee forbearing to prosecute a charge of obtain- ing money under false pretences against the maker, is illegal and void {Clubb v. Hutson, 18 C. P., N. S. 414). (3) Again, where a petition had been lodged in the House of Commons against the return of a member, on the ground of bribery, and the peti- tioner agreed to withdraw the said petition on pay- ment of a certain sum, the contract was held to be illegal (Coppock v. Bower, 4 if. $ W. 361). (4) For the same reason an agreement to with- draw a prosecution for perjury, and not to give evi- dence against the prisoner, is invalid {Collins v. £ lan- tern, 1 Sm. L. Ca. 369; see Elliott v. Richardson, L. R., 5 C. P. 744; M'Kewan v. Sanderson, L. R., 20 Eq. 65). Maintenance and Champerty. Sub-rule 2. -^A contract, icherehj one person agrees to help or maintain another, either by money or otherwise, in the conduct of any legal proceeding in which he (the former) has no legal interest, nor reasonable grounds on which to suppose he has an interest (Findon v. Parker, 11 3f. 8f W. 675), is illegal, and amounts to maintenance (Radcliffe v. Anderson, E. B. 8f E. 819; Earle v. Hopwood, 9 C. B., N. S. 566). Such an agreement, when made upon the consideration that the person assisting the plaintiff should p. l 114 ILLEGAL AND FRAUDULENT CONTRACTS. share in the proceeds of the action, is champerty, and is also unlawful {Hutley v. Hutley, L. B., 8 Q. B. 112 ; Sprije v. Porter, 7 E. 8f B. 58). (1) A contract, whereby an attorney stipulates with a client to receive, in consideration of the large advances requisite to the conducting the proceedings to a successful issue, over and above his legal costs and charges, a sum which should be commensurate with his outlay and exertions, and with the benefit resulting to the client, is void on the ground of maintenance (Earle v. Hopwood, sup.). (2) An attorney undertook to commence and carry on an action for the recovery of a certain sum, on consideration of his receiving one-half of the pro- ceeds of the action should he be successful. On the other hand, it was arranged, in the event of the pro- ceedings terminating adversely, he was not to charge the plaintiff anything for costs. Held, that such a contract amounted to maintenance and was void (In re Masters, 4 Bowl. 18; see also 33 8f 34 Vict. c. 28, s. 11). (3) An assignment, however, of the subject-matter of a suit, by way of security for costs only, is not champerty (Anderson v. Ratcliffe, E. B. 8f E. 806). (4) In Hutley v. Hutley (L. R., 8 Q. B. 112), the declaration alleged that J. H., a brother of the defen- dant, and a cousin of the plaintiff, had died, leaving large real and personal property ; that the defendant was heir-at-law of J. H., and one of his next-of-kin ; that J. H. left a will, whereby his real and personal property was left to persons other than the plaintiff and the defendant, and that the plaintiff believed that the CONTRACTS ILLEGAL AT COMMON LAW. 115 •will revoked a former will by which J. H. had be- queathed property to the plaintiff ; and that in con- sideration that the plaintiff would take necessary steps to contest the will and advance money, and obtain evidence for such purpose, and instruct an attorney, the defendant promised to share with the plaintiff half the real and personal property which might come to the defendant by reason of such pro- ceedings. Held, that the agreement amounted to champerty ; and that the fact that the plaintiff was a relation of the defendant, and had some collateral interest in the suit, did not prevent a contract, by which he. was to receive half of what the defendant recovered, being champerty (see Be Hoghton v. Money, L. B., 2 Ch. 169; Dickenson v. Burr el, L. B., 1 Eq. 337; Hilton v. Woods, L. B., 4 Eq. 432). . Other contracts might be mentioned, such as those tending to prejudice the revenue, or to bring about a breach of the peace, or to indemnify a person against the doing of, or for the having done, an illegal act, such as publishing a libel (Shackell v. Bosier, 2 J¥. C. 634), that are rendered unlawful by the common law, as being against public policy. In a word, " Wherever the tolerating any species of contract has a tendency to produce a public mischief or inconveni- ence, such a contract has been held to be void"(i^ r Lord Ellenborough, in Gilbert v. SyJces, 16 East, 156). II. — Contracts which tend to violate Morality. Kule 72. — All contracts which tend in any way to violate morality arc illegal and void 116 ILLEGAL AND FRAUDULENT CONTRACTS. (Walker v. Perkins, 3 Burr. 1568; Tat/lor v. Chester, L. R., 4 'DEX. ExECUTOEY CONTRACT, what is, Introd. money paid on an illegal, can be recovered, 105. Ex Nujjo Pacto non Actio Obitue, 82. Explanation, of written contract by oral evidence, 190. a patent ambiguity, 191. Factors' Acts (9 Geo. 4, c. 83 ; 5 & 6 Vict. c. 39), 51. ■when they apply, ib, Eailtjee op Consideration, when money paid can be recovered on, 96. right to rescind contract on, 178. Eees, barrister's right to recover, 101. physician's right to recover, ib. Felon, contracts by, 37. Felony, contract to compound felony illegal, 112. Feme Coveet. See Husband and Wife. Eeme Sole. See Husband and Wife. marriage of, if principal, terminates agency, 59. marriage of creditor, if a feme sole, with debtor, discharges debt, 184. Foebeaeance to Site, when a good consideration for promise, 83. claim must be bond fide, ib. Foeeign Contract, rule as to : construction of, according to lex loci contractus, 193. the remedy on, according to lex loci fori, ib. Formation of Simple Oonteact, 143. See Statute of Frauds. general rule as to how a simple contract may be made, ib. in all cases its terms must be ascertained or ascertainable, ib. when it must be reduced into writing, 144-165. contracts coming under the 4th section of the Statute of Frauds, 144. promise by an executor or administrator to answer damages out of his own estate, 14S. promises to answer for the debt, default, or mis- carriage of another, 149. agreements made in consideration of marriage, 151. contracts for the sale of lands or interest therein, 152. agreements that are not to bo performed within a year, 153. INDEX. 205 FORMATION OF SIMPLE CONTRACTS — continued. contracts coming 1 under the 17th section of Statute of Frauds, 156. contracts for the sale of goods of the value of 101., ib. promise to revive debts barred by the Statute of Limitations, 164. assignments of copyright, ib. transfer of ships or shares therein, ib. marine insurances, ib. contracts expressed in bills of exchange, ib. Frauds, Statute of, 144-165. See Statute of Francis. Fraudulent Contracts, effect of fraud on contract, 136. gives right to rescind, but does not vitiate, contract, ib. what amounts to fraud, ib. principal's liability for agent's, 138. effect of fraud on third parties, 139. oral evidence admissible to prove fraud in written con- tracts, 185. Feaudulent Misrepresentation. See Fraudulent Contracts. what amounts to, 136. Funeral Expenses. See Burial Expenses. Game, Sale of, under 1 & 2 Will. 4, c. 32, s. 4. .134. Gaming. See Illegal Contracts. contracts by way of, void under 8 & 9 Vict. u. 109, b. 18. . 122. subscription for any sum of money, &c. to be awarded to the winner of any lawful game not forbidden, 123. examples of wagering contracts, ib. money paid to a stakeholder on gaming contract, when recoverable,. 125. money paid on behalf of one who has lost on gaming con- tract recoverable, 127. Guaranty, must be in writing under 4th section of Statute of Frauds, 144. there must be a person primarily liable, 149. when the statute applies, 149-151. guaranty for an infant, 151. when Statute of Limitations runs in case of, 167. 206 INDEX. HOESB, infant may be liable for hire of, 6. right of servant to bind master by -warranty of, 50, 51. HtTSBAUD AND WlFE, I. Contracts of wife before marriage, 16. husband's benefit in, conditional only, and survives to ■wife, ib. should reduce wife's choses in action into possession during coverture, ib. what amounts to a reduction into possession, ib. husband dying before wife without having reduced choses in action into possession, 17. wife dying before husband has reduced choses in action into possession, ib. husband's liability on, 18. at common law husband's liability ceases on wife's death, except as her administrator, ib. under Married Women's Property Act (33 & 34 Vict. c. 93), ib. under Married Women's Property Amendment Act (37 & 38 Vict. c. 50), ib. husband and wife may be sued jointly, 19. II. Contracts of wife during marriage, ib. cannot as a rule contract so as to sue or be sued, ib. exceptions, when civilly dead, ib. by custom, 20. where she has separate estate, ib. when judicially separated under 20 & 21 Vict. c. 85, s. 26, ib. where she has obtained protection order under same act, 21. under Married Women's Property Act, ib. where she is the meritorious cause of action, 23. under Judicature Act, 24. when husband absent seven years, ib. husband's liability on, ib. not liable, unless she has acted on his express or im- plied authority, ib. presumption that wife has authority to bind him for necessaries when living with him, 25. presumption may be rebutted, 26. by express warning to tradesman, ib. by wife having sufficient allowance, ib. husband may be liable for goods not necessary by ratification, ib. liability of a man who cohabits with a woman who is not his wife, ib. where wife and husband live apart by mutual consent, 27. not liable where he provides her proper maintenance, ib. INDEX. 207 Husband and Wife — continued. II. Contracts of wife during marriage — continued. or wife haa private income, 27. effect of tradesman having notice of allowance, 28. where husband and wife live apart through husband's misconduct, ib. what will amount to misconduct on his part, ib. where wife and husband live apart through wife's misconduct, 29. presumption as to cause of separation, ib. husband's liability for wife's fraudulent misrepresentation, 30. lunatic husband, ib. Idiot. See JTo» Compos. contracts by idiots, 31 — 34. Illegal Consideration. See Illegal Contract. renders contract void, 96. where several considerations, some illegal, others legal, ib Illegal Contracts, illegal contracts generally : effect of illegality in contract, 104. where several considerations, some of which legal, others illegal, 96. where several promises, some legal, others illegal, 98. contracts connected with illegal transactions, 105. test of illegality, ib. money paid on illegal contracts, ib. presumption as to illegality, ib. illegality in written contract may be proved by parol evidence, ib. contracts illegal at common law : contracts contravening public policy, 105. whether contracts illegal on this ground for the court, ib. contracts in restraint of trade, ib. general rule, ib. if restraint partial and fair and reasonable, contract will be valid, ib. where time unlimited but space limited, 107. where time limited but space unlimited, ib. what is reasonable restraint, ib. examples, ib., 108 — 110. stipulations in contract divisible, 108. whether populousness of district should be taken into accord, ib. contract in restraint of marriage void, 110, 111. marriage brocage contracts void, 111. 208 INDEX. Illegal Contracts — continued. contract providing for the future separation of husband and wife, illegal, 111. but for immediate separation, good, 112. how such a contract should be made, ib. contracts impeding the ad^ministration of justice, void, ib. compounding felonies and public misdemeanours, ib. general rule, ib. person may compound for private injury, ib. maintenance and champerty, 113. what is maintenance, ib. what is champerty, ib. examples of both, 114, 115. other contracts illegal because against public policy, examples of , 115. contracts illegal on the ground of morality, ib. general rule, ib. printing libellous, indecent, or blasphemous books, '116. printer cannot as a rule recover, ib. when he can, ib. seduction, promises based on, ib. consideration of future seduction illegal, ib. past seduction no consideration at all, ib. goods sold or premises let for immoral purposes, 117. person so selling or letting with knowledge of pur- pose cannot recover, ib. whether his looking for payment out of proceeds of immoral act material, ib. contracts illegal by Statute, 119. may be expressly or impliedly prohibited, ib. impliedly so when there is a penalty imposed, ib. rule concerning penalties, ib. when the statute imposing a penalty does not forbid the act done, 121. gaming and wagering contracts, 122. general rule and protection clause, ib. 8 & 9 Vict. c. 109, s. 18, makes wagering con- tracts void, not illegal, ib. subscription for prize to winner of lawful game not prohibited, ib. examples of wagering contracts, 123. statute extends equally to lawful and unlawful games, 124. money paid to a stakeholder, when recoverable 125. money knowingly paid on behalf of one who has lost a wager, 127. wager policies illegal (19 Geo. 3, c. 48), 128. person effecting life insurance must have an interest, ib. INDEX. 209 Illegal Conteacts — continued. Contracts illegal by Statute — continued. wager policies — continued. and the same in other insurances, 128. name of the person, on whose account insurance is made muBt be inserted, ib. marine insurances, ib. nature and duration of interest, 129. interest must be pecuniary, ib. and must exist at the time insurance is made, ib. but in life insurances need not continue, ib. married woman's right to effect a policy under Married Women's Property Act, 130. creditor has insurable interest in debtor's life, ib. life insurance not a contract of indemnity, il). marine and fire insurances are so, ib. contracts made on a Sunday, when illegal, ib. Lord's Day Act (29 Car. 2, c. 7, s. 1), ib. construction of the words " other person whatso- ever," 131. examples of contracts coming under the act, ib. the contract must be completed on the Sunday before act applies, 132. when the goods sold on Sunday are kept, and express promise subsequently made to pay for them, 133. contracts for the sale of public offices illegal, ib. other contracts illegal by statute, examples of, 134. buying or selling game, when forbidden (1 & 2 Will. 4, c. 32, s. 4), ib. selling poisons without observation of certain regulations (31 & 32 Vict. c. 121, s. 17), ib. selling spirituous liquors, when illegal (24 Geo. 2, c. 40, s. 12), ib. Illegality, not to be presumed when construing contract, 105. parol evidence to prove, in written contract, ib. in bill of exchange, 86. partial, in consideration, 96. partial, in promise, 98. Immobal Contbacts. See Illegal Contracts — Seduction. illegal at common law, 115. goods sold or premises let for immoral purposes, 117. Immobal Publication, printer cannot maintain an action for, 116. Implied Conteact, definition of, Introd. xxiii. Implied Pbomhe, when a promise is implied in law, 98. banker impliedly undertakes to honour customer's cheque, 99. 210 INDEX. Implied Promise — continued. lessor to make good title to lease, 99. person who lets furnished house that it will be in fit condi- tion at time agreed upon, ib. medical men, solicitors, &c. to use reasonable care, 100. promise when implied where consideration is executed, ib. when not, 101. no implied promise to pay counsel, ib. in cases of physicians, ib. Impossibility. See Performance. when it excuses non-performance of contract, 176. Impossible Consideration, consideration must be capable of being performed in fact and in law, 93. where the consideration merely difficult, it is binding, 94. so in general where it is impossible ' ' owing to defendant's abiEty," ib. when it is not, ib. Impossible Contracts. See Impossible Consideration. Inadequacy of Consideration, will not render contract liable to be rescinded, 86. unless there is fraud, ib. Incapacity to Contract, presumption against, 3. party setting it up must prove it, ib. persons labouring under an, ib. Indemnity. See Guaranty. Infancy, is a personal privilege only, 13. replication to plea of infancy that defendant fraudulently misrepresented his age', 14. rule in equity where infant has gained benefit by fraud, ib. Infants, contracts not binding unless for necessaries, 4. what are necessaries, ib. general rule, ib. articles purely ornamental not necessaries, 5. whether artioles otherwise necessaries cease to be so where infant already amply provided, 6. necessaries supplied to wife or child of infant, 7. a parent's liability for necessaries supplied to his child .i 8. money lent to an infant not recoverable, ib. 10. not even when borrowed for paying for necessaries, ib. in equity might be when actually spent in paying creditors who had supplied necessaries, ib. INDEX. 211 Infants — continued. whether the question of necessaries is for the judge or jury, 9. voidable contracts, 10. contracts beneficial to infant formerly voidable, ib. by Infants' Relief Act, 1874, all contracts unless for necessaries void, ib. ratification of contracts at common law, ib. under Lord Tenterden's Act (9 Geo. 4, c. 14), 11. Lord Tenterden's Act not applicable to continuing contacts, ib. ratification prohibited by sect. 2 of Infants' Relief Act, ib. effect of sect. 2 of Infants' Relief Act, ib. doubtful whether it applies to continuing contracts, such as partnership, 12. applies to promises to marry, ib. contract binding on other contracting party in every case if over age, 13. infant fraudulently misrepresenting his age, 14. how infants may sue, ib. infants may be agents, 48. Infants' Relief Act, 1874 (37 & 38 Vict. o. 62), makes all contracts, other than for necessaries, void, 10. section 2 prohibits ratification of promise made during infancy, 11. effect of sect. 2, ib. doubtful whether it extends to continuing contracts, 12. extends to promises to marry, ib. Insanity. See Non Compos. contracts by insane persons, 31 — 34. Insurance. See Illegal Contracts. policy of, by way of wagering, illegal, 128. person effecting, must have interest, ib. nature and extent of interest, 129. when it must exist, ib. name of person effecting, must be inserted in policy, ib. in life insurance interest need not continue, ib. married woman's right to insure, 130. creditor's right to insure, ib. life insurance not contract of indemnity, ib. fire and marine are so, ib. Interest, nature and duration of interest required in contracts of insurance, 129. Interest, in land, what is, 152. See Statute of Frauds. Joint Contractors, . . effect of acknowledgment or part payment by one joint contractor under the Statute of Limitations, 173. p2 212 INDEX. Joint Stock Companies, 61. Judicatuee Aots (36 & 37 Vict. o. 66; 38 & 39 Viet. c. 77), provision as to infants suing, 15. and as to married women suing or being sued, 24. provision as to assignment of choses in action, 85. provision as to time being essence of contract, 179. Judicial Separation, wife considered as feme sole for the purpose of entering into contracts, 20 effect of reversal of decree, ib. Juby, whether question of necessaries for, 9. whether performance of accord or promise only is taken in satisfaction is a question for the, 183. Land. See Statute of Frauds. contracts for the sale of, or interest therein, must be in writing, 152. what is an interest in land, ib. Latent Ambiguity, oral evidence to explain, in written con- tract, 190. Lease, implied promise by lessor to make good title, 99. provision in Statute of Frauds as to leases, 145. Lettee, acceptance of offer by, 76. Lex Loci Contractus, must be observed in expounding con- tract, 183. Lex Loci Foei, must be observed in enforcing contract made abroad, ib. Life Insueance, 129. See Insurances. Limitation, Statutes of , 166. See Statutes of limitation. Lodgings, contract to let furnished lodging is a contract for an in- terest in land under Statute of Frauds, 152. but not a contract for board and lodging merely, ib. London, feme sole who trades in, liability on her contracts, 20. •Loed's Day. See Illegal Contracts — Sunday. contracts made on the, 130. Loed Tenteeden's Act, as to ratifications of contracts by infants, 11. did not extend to continuing contracts, ib. as to promise and acknowledgments to revive debts barred by Statute of Limitations, 165, 169. INDEX. 213 Lunatic. See Non Compos Mentis. contracts by, 31. husband, liability of, on wife's contract, 30. Maintenance, what is, 113. contracts illegal on the ground of, 113. examples of, 114. Marine Insurance, 128. Market Oveet, sale in, within Statute of Frauds, 157. Maeeiage. See Husband and Wife — Separation. contract to marry : infant cannot be sued on, 13. Infants' Belief Act applies to, ib. infant may sue on, ib. promises to marry need not be in writing, 157. collateral promises made in consideration of marriage must be, ib. plaintiffs evidence of defendant's promise to marry must be corroborated, 152. defendant may be sued before time fixed for marriage if he expressly refuses to marry plaintiff, 180. or if he marries another woman, ib. marriage of principal, if a feme sole, with agent, terminates agency, 59. marriage of feme creditor with debtor discharges debt, 184. Maebiag/E Bbocage, contracts for procuring marriage illegal, 111. Maeeied "Woman. See Husband and Wife. contracts by, 16 — 30. Maeeied Women's Property Act (33 & 34 Vict. c. 93), 18, 21, 22, 130. Maeeied "Women's Property Amendment Act (37 & 38 Vict, c. 50), 18. Marry, Contracts to. See Marriage. Master and Seevant, contract of hiring : whether infant liable on, 12. whether Infants' Relief Act applies to, ib. when it must be in writing under Statute of Frauds, 154. when servant can bind master by giving a warranty, 50, 51. Maxims, " Qui per alium facit per seipsum facere videtur," 49. " Delegatus non potest delegare," 58. " Ex mido pacto non actio oritur," 82. 214 INDEX. Meaning of Woeds, when oral evidence admissible to explain the meaning of words used in a written contract, 190. Medical Act (21 & 22 Vict. c. 90), 101. Medical Men. See Physicians. impliedly contract to use reasonable skill, 100. Mine, whether shares in, within Statute of Frauds, 157. Misdemeanotje, contract for compounding a, if of a public nature, illegal, 112. Misbepbesentation. See Fraudulent Contract. Mistake, when parol evidence admissible to prove, in written contract, 190, 191. Money Lent, to an infant cannot be recovered, 4, 10. former rule in equity when lent to an infant, and spent by him in paying creditors for necessaries that had been supplied him, 8. request is implied in the case of money lent, 92. MOBAL OBLIQATION, not a valuable consideration, 85. no previous request implied where the plaintiff has volun- tarily done that which the defendant was morally bound to do, 92. Mutuality, of consent always necessary in simple contract, 73. of obligation generally essential, 80. exceptions, ib. Natueal Love and Affection, consideration consisting of, not sufficient, 85. Naturalization Act (33 Vict. c. 14), its effect on contracts by aliens, 3. Necessaeies, liability of infant for, 4 — 8. what are, 4. money lent to an infant to pay for, 8. whether question of, for judge or jury, 9. liability of parent for, supplied to'his child, 8. liability of husband, on wife's contracts for, 25, 27, 28, 29. liability of man for, supplied to his mistress, 26. liability of person non compos mentis for, 31. liability of drunkard for, 35. INDEX. 215 Non Compos Mentis, contracts by persons non compos mentis, 31. liable for necessaries, ib. money spent in procuring' them necessaries may be re- covered, ib. when liable for articles other than necessaries, 33. ■whether other contracts void or voidable, 34. liability of lunatic husband upon wife's contracts, 30. Nudum Pactum. See Consideration. Obligation, Discharge of. See Discharge of Obligation. Offer, unless assented to as made, does not constitute an agree- ment, 73. may be retracted till accepted, 74. in writing, signed by the defendant, will be binding on him under the Statute of Frauds, though accepted verbally by plaintiff, 147. Ordee foe Peotection, made under 20 & 21 Vict. c. 85, s. 21, how it affects wife's capacity to contract, 21 . Okdee op Dischaege. See Contracts by Bankrupts. of bankrupt, its effect on his contracts, 40. contracts ty bankrupt made before, 41. bankrupt subsequently promising to pay debt barred by, ib. Outlaw, contracts by outlaws, 39. may be sued, but cannot sue, ib. may act as agent, 48. Parent and Child, liability of father for necessaries supplied to his child, 8. slight circumstances will raise a primd facie presumption that father has given his child authority to pledge his credit, ib. Parol Evidence. See Evidence, Oral. when it can be used to vary, waive, or explain written con- tract, 185—191. Part Payment, effect of, under 17th section of Statute of Frauds, 156, 164. effect of, under Statutes of Limitation, 169, 172. what amounts to part payment, so as to take a case out of the statute, 172. 216 INDEX. PAST PeeFOEMANCE, of contract, coming under 4th section of Statute of Frauds, 154. rule in equity where there has been, of such a contract, ib. ■what amounts to part performance, 155. Paetnebs and Paetnebship, what is a true partnership, 60. what is a quasi partnership, ib. how a true partnership may be created, ib. general rule, ib. exceptions coming under the Statute of Frauds, ib. under the Companies Acts, 61. how a quasi partnership may be created, ib. participation in profits, ib. former rule as to the effect of participation in profits, 62. alteration by Cox v. Hickman, ib. and by 28 & 29 Vict. u. 86. .63. effect of that act, 64. holding out, ib. lending name may constitute a quasi partnership, ib. nominal partner, 65. effect of plaintiff knowing nominal partner's true position, ib. contracts by partners inter se, 66. dormant partner, ib. contracts by partners quoad third persons, 67. how far one partner can bind his co -partners when unauthorized, ib. when he can bind them by drawing, indorsing, or ac- cepting bills, ib. effect of plaintiff having knowledge of excess of authority, 68. ratification by partners, 69. how a partnership may be dissolved, ib. retirement, when notice is necessary, 70. what notice should be given, ib. ' when dormant partner must give notice, ib. Past Considebation, must have been moved by previous request, express or im- plied, to support promise, 89. must generally be express, 90. when implied, 91. Payment. See Part Payment. Peefobmanoe. See Discharge of Obligation— Part Performance. rule as to performance of contract, 175. when a request to perform is necessary, ib. when it is in the case of bills, notes, &c, 176 INDEX. 217 Pekfokmanoe — continued. when non-performance is excused, 176. when a contract must be performed, 178. when a particular day is named, 179. when time is the essence of a contract, ib. where defendant may he sued before day named for per- formance, 180. Physician, impliedly undertakes to use reasonable skill, 100. when he could recover fees at common law, 101. effect of the Medical Act (21 & 22 Vict. c. 90), a. 31, ib. Poison, sale of, forbidden by 31 & 32 Vict. c. 121, unless certain regulations observed, 134 Policy op Insurance, 128. See Insurance. Post, acceptance of offer sent by post, and lost or delayed, 77. Principal and Agent, how an agent may be appointed, 47. who may be an agent, ib. infants and married women may, 48. who may be an agent to sign under the Statute of IVauds, ib. who should sign in a sale by auction over 10?., ib. liability of principal on the authorised contracts of his agent, ib. liability of principal on the unauthorised contracts of hia agent, 49. difference between a general and a special agent, ib. agent pledging instead of selling goods entrusted to him, 61. principal not bound at co mm on law, ib. effect of Factors Acts (5 & 6 Vict. c. 39 ; 6 Geo. 4, c. 94), ib. in what cases these acts are applicable, 52. when a principal may be sued, 63. effect of altering accounts between principal and agent, ib. when plaintiff has elected to give credit to agent, 54. when an agent may be sued, 55. when so-called agent has no principal, ib. when liable to principal, 48, 56. parol evidence to relieve his liability, 56. when principal may sue, ib. when defence against the agent maybe set up against the principal, 57. when agent may sue, 57. his right to sue when he has some beneficial interest, 68. ratification, ib. 218 INDEX. Principal and Agent — continued. delegation of agency by agent, ib. when and how agent's authority is terminated, 59. Printer, cannot recover for printing a libellous or immoral book, 116. Promise (the), what is a promise, 74. how it differs from a contract, ib. must be legal, 98. where there are several promises, some legal others illegal, ib. when promise is implied, ib. executed considerations and implied promises, 100. promise usually implied when consideration is executed, ib. when it is not, 101. promises by client to banister, patient to physician, &c. , ib. executed consideration and express promises, 102. executed consideration will support no other promise than that which the law will imply, 102. exception, 103. Proposal. See Offer. may be retracted till accepted, 74. signed by defendant and accepted verbally by plaintiff, sufficient to satisfy Statute of Frauds, 147. Prostitution. See Illegal Contracts — Seduction. goods sold or premises let to prostitute, 117. Protection Order, under 20 & 21 Vict. c. 85, s. 21, how it affects wife's capacity to contract, 21 . Public Policy. See Illegal Contracts contracts illegal on the ground of, 106. whether contract void on this ground for the court, ib. contracts in restraint of trade, ib. See Restraint of Trade. contracts in restraint of marriage, 110. marriage brocage, 111. contracts for future separation of husband and wife, ib. impeding administration of justice, 112. compounding felonies and public misdemeanours, ib. maintenance and champerty, ib. " Qui per Alium Facit per Seipsum FacereVidetur," 49. Railway, contracts for sale of shares in, not within Statute of Frauds, 157. liability of railway company for medical attendance to passenger at their servant's request, 51. INDEX. 319 Ratification, of contract made during infancy, 10. effect of Lord Tenterden's Act upon, 1 1 . effect of Infanta' Relief Act upon, ib. of contract of wife, by husband, 26. of contract of agent, by principal, 58. Receipt. See Statute of Frauds. what amounts to, under the 17th section of Statute of Frauds, 162. delivery to common carrier is delivery to vendee, 163. Reduction into Possession, of wife's chbses in action by husband, what amounts to, 16. where husband dies before wife without having reduced, 17- where husband survives wife without having reduced, ib. Release. See Discharge of ( Representation. See Fraudulent Contracts. when it will give a right to rescind contract, though made without fraud, 137. Rescission of Contract. See Discharge of Obligation. on the ground of fraud, 136. within what time it should be exercised, 137. on complete failure of consideration, 178. Restraint op Marriage. See Illegal Contracts. contracts in, illegal, 110. Restraint of Trade. See Illegal Contracts. contracts in, when illegal, 106. those merely in partial, valid, ib. presumption is against validity, ib. what is partial restraint, 107. what is reasonable restraint, ib. stipulations in contract, severable, 118. populousness of district, whether taken into account, ib. Revocation of agent's authority, 59. Sale. See Statute of Frauds. Sale of goods, contract for the, 145, 156. when writing is necessary, 153, 156. provisions of Statute of Frauds, ib. what sales are within the 17th section, 157- sales in auction are, ib. and in market overt, ib. test for seeing whether a contract is for the sale of goods, or for work and labour done and materials provided, ib. 220 INDEX. Sale — continued. Sale of Goods — continued. contract consisting of several items, when within section, 158. lots sold by auction, are sold under different contracts, 159. where the price is uncertain, whether section applies, ib. what amounts to acceptance, 160 — 162. what amounts to a receipt, 162 — 164. part payment or earnest, 164. what is sufficient memorandum to satisfy the section, 146—148. Sale of Land, contracts for the, or any interest therein must be in writing, 152. provision of the 4th section of the Statute of Frauds concerning the, ib. what is an interest in land, ib. contract to convey equity of redemption is a contract concerning an interest in land, ib. so also a contract to let furnished lodgings, ib. but, aliter, a contract for board and lodging merely, ib. or shares in railway or joint stock company, 153. growing crops, when considered an interest in land, ib. distinction between fructus industrials and fructus non industrials, ib. what is a sufficient note or memorandum to satisfy the section, 146—148. Illegal Sales, on the ground of morality, 116. contracts for the sale of goods to a prostitute, 117. fact that tradesman looked to be paid out of proceeds of immoral act immaterial, ib. by statute, 119. penalty imposed by statute, when such penalty makes contract illegal, 119 — 122. sales made on a Sunday when illegal, 130. contract must be complete in the sense of being bind- ing on the Sunday, 132. where goods sold on a Sunday are kept and subsequent promise to pay made, 133. contracts for the sale of public offices illegal, ib. sale of game, when forbidden, 134. of poisons, when forbidden, ib. of spiritous liquors, beer, ale, cider, &o., when illegal, ib. Fraudulent Sales, effect of fraud, 136. what amounts to fraud, ib. within what time a contract may be rescinded on the ground of fraud, 137. INDEX. 221 Sale — continued. Fraudulent Sales — continued. principal's liability for the fraud of his agent, 138. non-disclosure of defects in contracts of sale, 139. a person not guilty of fraud when he says nothing about quality and condition, though he knows of defect, ib. aliter where he does something actively to deeeivo the vendee, 140. when Statute of Limitations begins to run in the cas_e of goods sold on credit, 167. Satisfaction. See Discharge of Obligation — Accord and Satisfac- tion. Seduction, if past, is no consideration at all, and will not support promise, unless made by deed, 85, 116. future, is an illegal consideration, and promise based thereon, however made, is void, 116. Sep abate Estate, when married, woman's, liable for debts contracted by her before marriage, 18, 19. when she can make her, liable by her contracts made during marriage, 20. under Married Women's Property Act, what is, 21. how wife should be sued, 20, 22. Sepabation of Husband and "Wife, liability of husband upon his wife's contracts during separation — when the separation is judicial, wife treated as a feme sole, 20. when it is by mutual consent, 27. when caused by husband's misconduct, 28. when caused by wife's misconduct, 29. presumption as to cause of separation, 29. contracts providing for the future, illegal, 111. but aliter for the immediate, 112.' how such a contract should be made, ib. Shares, sale of, when within Statute of Frauds, 152, 157. Ship, contract for the transfer of, or shares therein, must be in writing, 165. Signature, what is sufficient, under Statute of Frauds, 147. Simple Contract. See Contract. definition of, Introd. xxi. parties to, 3 — 7. the constituent parts of, 73 — 103. how it should be made, 143. terms must be ascertained or legally ascertainable, ib. when a writing is necessary, 144 — 165. 222 INDEX. Simple Contkact — continued. Statutes of Limitation and their effect on, 166 — 174. discharge of the obligation imposed by, 175 — 184. oral evidence and written contracts, 185 — 191. damages on breach of, 191. entered into abroad, 192. Solicitoe, impliedly undertakes to use reasonable skill and care, 100. Specific Pereobmance, equity will not decree, of a contract whose terms are indefinite and vague, 143. when equity will decree, of a contract coming under the Statute of Frauds, and not in writing, 154. STAKEHOLDER, when money paid to a, can be recovered, 125. effect of 8 & 9 Vict. c. 109, s. 18, ib. Statute op Frauds, 4th section, 144. what is sufficient memorandum to satisfy 4th and 17th section, 146. consideration must generally be stated, ib. exception in the case of guaranties by 19 & 20 Vict. e. 97, ib. and in cases coming under the 17th section of Statute of Frauds, ib. names of the parties must appear, ib. or sufficient description of them, ib. what is a sufficient description, ib., 146. signature of the party to be charged, or of his agent, must appear, 147. it need not be written at the bottom of the writing, ib. may be printed, if authorized by defendant, ib. telegram containing name of the sender and receiver sufficient memorandum, ib. agent signing must not be the other contracting party, ib. memorandum may be collected from several documents, ib. provided such documents, on the face of them, are con- nected with each other, ib. memorandum must exist at time of action brought, ib. promises by executors and administrators, ib. promise in this, as in other cases coming under the act, must be supported by valuable consideration, ib. promises to answer for the debt or miscarriage of another, 149. guaranties, ib. INDEX. 223 Statute of IFeauds — continued. promises to answer for debt, &o. — continued. liability undertaken must be collateral and not direct, ib. whether liability direct or collateral depends on sur- rounding circumstances, ib. the debt must continue to exist, 150. promise to answer for a debt of an infant need not be in writing, 151. promise must be made to the person to whom another is, or is about to become, liable, 151. clause extends to wrongs ex delicto, ib. consideration for guaranty need not appear, ib. but must exist, ib. agreements made in consideration of marriage, ib. does not apply to contracts to marry, ib. but only to collateral promises based on the consider- ation of marriage, ib. evidence of a promise to marry must be corroborated, 152. contracts for the sale of lands or any interest therein, ib. what is an interest in land, ib. contract to convey equity of redemption comes under the clause, ib. or an agreement to let furnished lodgings, ib. but not a contract for board or lodging merely, ib. or for the sale of shares in railway or canal company, ib. or, as a rule, in any joint stock company possessing land, 153. growing crops, rule as to, ib. crops growing naturally are an interest in land, ib. unless immediate severance from soil is contem- plated, ih. but not fructus industrials, ib. contracts that are not to be performed within a year, ib. where it is doubtful when contract will be per- formed statute does not apply, ib. nor where all that is to be done by one party is capable of being done within a year, 154. nor where the consideration is executed, ib. part performance of contract coming under section, ib. when equity will decree specific performance, ib. what amounts to part performance, 155. Contracts coming under the Vlth section, 156. provision under Lord Tenterden's Act, ib. what contracts are within the section, 157. does not apply to sale of shares in railway, mining, or joint stock company, ib. nor to contracts for the sale of foreign stock, ib. 224 INDEX. Statute op Fbauds — continued. Contracts coming under the 17th section — continued, applies to sales by auction, 157. or in market overt, ib. when a contract is for the sale of an article or for work and labour done and material provided, ib. rule for ascertaining this, ib. value of ten pounds, 158. when contract consists of several items, ib. ■ section applies, if sold under one contract, ib. where price is uncertain, 159. buyer must accept part of goods and actually receive the same, ib . acceptance may precede delivery, 160. acceptance, when there is an, ib. acceptance may be constructive, ib. what constitutes a constructive acceptance, ib. what constitutes a receipt, 162. where goods are removed into the possession of the vendee or his agent, ib. where they are already in the possession of the vendee, 163. where they are in the possession of a third person, ib. earnest or part payment, what amounts to, 164. Statutes of Limitation (21 Jac. 1, u. 16; 19 & 20 Vict. u. 97), 166. within what time a simple contract must be enforced, ib. the effect of the Statute of Limitations (21 Jac. 1, u. 16) is not to extinguish debt, ib. when the statute begins to run, 167. when goods are sold upon credit, ib. in contracts of indemnity, ib. in bill of exchange and promissory note, ib. when money has been lent by cheque, ib. disabilities, 168. provisions made for infants, married women, non compos mentis, ib. exception as to plaintiff being in prison or beyond seas abolished, ib. when defendant is beyond seas, ib. what is "beyond seas," ib. in case of joint debtors, ib. subsequent disability does not stay the operation of act, ib. what will take case out of the operation of act, 169. how the acknowledgment or promise should be made, ib. acknowledgment or promise by writing, ib. when it will take case out of the operation of statute, ib. examples, ib. INDEX. 225 Statutes op Limitation — continued. acknowledgment by part payment, 172. when it will take case out of operation of statute, ib. payment of interest, ib. when payment of interest will take case out of opera- tion of statute, ib. proof of payment in bills, notes, or other writing, 173. acknowledgment by joint contractor, ib. when the acknowledgment or promise must be made, 174. Sunday. See Illegal Contracts. contracts made on, when illegal under 29 Car. 2, u. 7. . 130. meaning of the words "or other person whatsoever," 131. contract for the hire of a labourer by a farmer not within act, ib. what is the meaning of " ordinary calling," lb. a horse dealer comes within the class mentioned in act, ib. but not a solicitor, 132. contract must be completed on the, in the sense of being binding, ib. when the goods sold on the, are kept, and there is a sub- sequent express promise made to pay for them, 133. Surgeons. See Physicians. impliedly undertake to use reasonable skill, 100. Surveyors, impliedly undertake to use reasonable skill, 100. Telegram, how far it will constitute a memorandum under Statute of Frauds, 147. Tenterden's (Lord) Act (9 Geo. 4, c. 14), provision as to ratification by infants, 11. did not apply to continuing contracts, ib. provision as to sale of goods not in esse, 156. provision respecting the Statute of Limitations, 165, 169, 173. Time, when the essence of a contract, 179. rule in equity, ib. provision in Judicature Acts, ib, when definite time stated for performance of contract, defendant cannot usually be sued till that time is passed, 180. when he may be sued before the time named, ib. 1\ Q 226 INDEX. Titus, when lessor impliedly contracts that he has a good title, 79. Tout, promise to answer for the debt of another arising out of a tort, is within Statute of Frauds, 151. Trustee op Bankrupt. See Bankrupts. Usage. See Evidence, Oral. when oral evidence of usage or custom can be given to annex incident to written contract, 188, 190. Valuable Consideration, absolutely necessary in case of simple contract, 82. what is a, ib. Wager Policies. See Insurance. forbidden by 14 Geo. 3, c. 48 . . 128. ■Wagering Contracts, contracts by way of wagering void under 8 & 9 Vict. c. 109.. 122. act does not extend to subscription to be given to the winner of any lawful game, ib. examples of wagering contracts, 123 — 125. money "paid to a stakeholder to abide the event of * wagering contract, 125. Waiver, of oral contract before breach by parol, 181. of written contract before breach, may be by parol, ib. even, perhaps, where the contract comes under Statute of Frauds, ib. Wife. See Husband and Wife. contracts by wife, 19 ct seq. Words, oral evidence to explain the meaning of, in written contract, when admissible, 190. Writing. See Formation of Simple Contract. when a simple contract must be reduced into writing- US— 164. INDEX. 227 Weitten Contract. See Formation of Simple Contract — Evi- dence, Oral. oral evidence to -waive, vary, or explain written contract, when admissible, 181, 184 et seq. Year, contracts that are not to be performed within a, must be in writing under 4th sect, of Statute of Rauds, 153. when the section applies, 153, 154. THE END. PErNTED ET C. F. EOWOBTH, BBEAm'S BTJILDINGS, CHANCEKY IANE.