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■T"^^^^^
LEADING
CASES SIMPLIFIED
A COLLECTION OF THE
LEADING CASES OF THE COMMON LAW.
HY
JOHN D. LAW SON,
Author of " irordii mill Phraaes JiidiCMUij Construed," " The
Lair of Cmr/esaiid Customs,"" The Contracts
of Common Carriers," etc., etc.
ST. LOnS:
P. II. THOMAS & COMPANY,
l.s.s-.'. •
mmmim
f
KnteitMl arcovdiiiK to Act of Coiifrress, in tlio year ISSi, by
JOHN" 1). T.AWSOX,
Jnthconiccof the Librarian i.f t'ongruss, at Wasliington,
rronK of Xi von-, Tones Printing Co.
PKEFACE.
I
All cMuleiivor bus boon made in the following i)agt's to
present the Loading Cases of the Common Law — the land-
marks of the law of to-day in the States of the Union — in a
clear, concise and semi-humorous style. While this book is
more particularly intended for the law student, it is hoped
that (if he can lie induced to read it) the general reader will
And it interesting, and it is promised that (if he cannot be
prevented from reading it) the busy practitioner will find it
both entertaining and prolitable.
In this little book I have aimed at these results : 1. To crive
the student a collection of the acknowledged leading cas^s of
the commcm law. 2. To present these in a style which shall
arrest his atttmtion, render it possible for him to ac(iuire
their piinciples readily, and fix those principles in his mind
unincumbered l»y unimportant and sometimes unintelligible
facts. To this end only the really leading cases have been
selected, and these, instead of being some fifty or sixty, num-
ber in all over two hundred, and embrace nearly every branch
of the common law of the land. To this end, also, correct-
ness of statement has been adhered to, and humor has never
been indulged in at the expense of truth. Therefore, this
work differs essentially from a ^vork like the " Comic Black-
stone," in this, that while in that the principles of the law are
parodied, here the facts, the result, the principles settled
(hi)
J
I
IV
rUEFACE.
and the reasons given, are stated as tlR\v are found in Coke
and Story and Kent, and to tlic same end I have arranged
the cases in logical oi'der, so that tlie hnv may he studied
systematically and without confusing the many different
points which the}' decide. In adopting the semi-humorous
vein, I have tried to make the study of the law less dry to
the student than, as a rule, it generally is.
In bringing the following i)ages more particularly to the
notice of the "student," I am keeping in mind the fact
that one does not cease to be a student by Itcing admitted to
the bar.
It is an old saying that tliere is no rule without an excep-
tion, and 1 believe that this maxim is nowhere lietter
illustrated than it is by the rules of the common law. JMan}'
of these exceptions the student will find stated in the cases
themselves, others of them again in the occasional notes to
the cases.
In conclusion, I desire to express my obligations to ]Mr.
Shirley, the author of the English work, Leading Cases
Made Easy, lor the most of Smith's Leading Cases, wliich I
have either rewritten or adapted, and also for several later
ones. J. I). L.
St. Louis, Mo., June, 1882.
co:n^texts.
FOUM OF
.PART I. — FoR.MATiox OF Contract.
Two llKQUISITES TO COXTKACT, VIA., PROPOSAL AND ASSEXT
White V. Coi'lic's
Bartholomew v. Jackson ....
PuoposAi, Cannot ni; Rkth acted Aktku Acceptance —
Boston and Maine A*. Co. v. Bartlett
BiDDiNO AT Auctions —
raijne v. Gate
PuoposKR May Puescuiue Time, Place and
Acceptance —
Eliason v. Ilcnshaio . . , .
Maclay v. Harvey
But not oe Refusal —
Felthouse v. Bindley ....
Offeu must he Accepted within Reasonahle Time
Lorimj v. City oj Boston . .
Contkacts uv Post —
Adams v. Lindscll
Tayloe v. Merchants Fire Ins. Co. .
Household Fire las. Co. v. Grant .
Uncektain Agreement does not make Contract
iSherman v. Kitsmiller ....
Zaleski v. Clark
Acceptance must ke Identual with Offer —
Jordan v. Norton
Acceptance of Altered Proposai
Borland v. Guffey
Proposal to Unascertained Person —
Williams v. Carwardine ....
rA(jE.
1
2
3
5
r>
7
8
1)
11
12
U
l(j
18
19
20
22
(V)
VI
CO NT K NTS.
MiSTAKK AS TO PKliSON foMUACTINi; -
Boston Ice Co. v. Potter .
MisTAKK AS TO SraiKCT Mattkk —
K'lle V. KavanaiKjh .
RliPUIJSKNTATIOXS AM) WaKUANTIKS —
liehn V. Burness
I'A(.K.
. 2:5
. 20
PART II. t'oN'SIDKUATION.
A COXSIDEUATIOX NeCESSAKV lO Sll'I'OlM' A ("oNTKACT —
liann v. IhKjhes 28
AOKQIACY ()!■' CoNSIDl'.ltATIOX I>rM ATKUIAL —
Ii<iinbri(h/e v. Finustoiie ....... 20
But Considkhation mist lu; Kkal —
White V. Bluett 30
FOUnEAHANCK TO SUK A Sfl'I' ICIKXT CoXSIDKKATION —
Ilockenhurij v. Meyers 32
PKOVIPKI) T!IK1!K IS A LKOAL CaISK ok A« ITOX —
Palfreij v. Bortlaiul, etc., JL Co 32
Promise to i>o what Pakty is Boind to do, Insiifk ii;n r —
Beijunhls \. Xiii/eiit ........ iH
Climber v. Wane 35
Moral Ohi.igatiox Insli'iicikxt —
Cook V. Brmlleij . . . . . . . . 3(!
Beaumont v. Reeve .37
Past Coxsideratiox —
Balkleij v. L.jidon 38
Lamplevjh v. Brathwait 39
PAKT III. — Papties.
Contracts of Infants Voidaiji.i: axd Void-
Fetrow v. Wiseman ....
Except for Necessaries —
Peters v. Flemin<j . . .
Hunt V. Pcakc . . . . .
41
42
43
CONTENTS.
vil
I'A(.K.
'28
2!»
30
32
32
;'4
35
3()
37
38
39
I'AGK.
. 45
. 4(5
. 47
. 47
. 50
. 51
41
42
43
IIUSUANI) AND WiFK —
Miinhy V. ScDtt
Moiitnijn V. Jtcnrdirt ......
Seaton v. Benedict
Debvnhnm v. Mellon
COXTUACTS OK Li'XATICS —
Milchell V, KuKjnuin . ...'..
Baxler \ . Portsmouth ......
Krom V. Sdioonmaker ....... 52
CoXTUACTS OK CoKPOItATIOXS —
Bank of Colamhui v. Patterson 53
PART IV. — Tin: Stattte of Fuaids.
Pkomisk to Axswku kou " Dkbt, Dhkault, oil Miscauriage "
OK AXOTIIKI! —
Birkmijr v. Darnell . .57
Pkomisk, " ix CIoxsidkuatiox ok " Makhiaok —
Short V. Stotls 59
"In'tkkhst i\ oil CoxcK.iixixo Laxds" —
Crosbij V. IVads worth ....... 59
COXTUACTS " XOT To UK PERKOIOIKM WITIIIX A YkaU " —
Peter v. Coinpton ........ 00
CONSIDKl!ATi;)X Mlsr UK Exl'IiKSSKl) —
Wfiin V. Warlters ('>2
Pkomisk to Axswkk kou Dkht, ktc, ok "Axotiikk" —
Eastwood V. Ken^/oii .03
" Goods, Wauks, axo Mkuciiaxdisk " —
Tisdale v. Harris . . ..... G6
Goods xot ix Existkxck —
Lee V. Griffin 36
Value ok Goods —
Baldeij v. Parker . . . . . . . .07
Acceptaxck axd Rkceh'T —
Elmore v. Stone ........ 08
Shindler v. Ihmston 70
CoXTKACT CoXTAIXED IX SeVEUAL DOCI'MEXTS —
Boydell v. Drummond ....... 71
"3f
viii
CONTENTS.
PART V. — WuiTTKN CoNTUACTs AND Ohal EvroENCF;.
PAGE.
Oral Evidkncr not Admissiiilk —
Goss V. Nu(je)it ....
Pijm V. Cainphcll ....
L.VTKNT AMIUGt ITY MAY HK K.tl'I.AINKI) —
Sargent v. Adams ....
But not " Patknt Amukji itv" —
Aspden's Estate ....
SUPPLEMKXTVnY CONTRACT MAY IJK SHOWN —
Malpas V. Luiulo)!, etc., li. Co.
Usages of Tijadk may bk Shown —
Cooper V. Knne ....
Soutier V. Kellermua
Usage must not Coxthapict Contkact —
BlackeM v. Royal Exchange Ass. C;.
74
7G
77
78
80
«1
85.
PART VI. — Ili,i:(jal Contuacts.
Contracts to Prevent Co.mpetition —
Gulick V. Ward ....
Agreements to Influence Officials —
Tool Co. V. Norris ....
Contracts Impudino the Administration of
CoUins V. Illanteni ....
Scott V. Arenj
Contracts Violatino Law —
Cowan V. Milbourn ....
Contracts Violating Statutes —
Pattee v. Greeley ....
Immoral Contracts —
Pearce v. Brooks . . . .
Wagers —
Good V. Elliott ....
Contracts in Restraint ov Trade —
Alger V. Thacher ....
Mitchel X. Beynolds ....
Justice —
87
88
. 8!)
. 91
. 02
. 9.'?
. 95
. 9R
. 98
. 101
CONTENTS.
Ix
tDENOF;.
I'AGE.
. 74
. 7G
. 77
. 78
. 80
. «1
. 85
87
88
8!)
91
02
93
95
9fi
98
101
CONTUACTS IX RksTUAINT OK MaIIUIAGK —
Loice V. Pecrx .
MAIlHIACiK BliOKAOI-; CoXTUACTH —
Cnucfui'd V. littssell
COUKT Wri-I- NOT AID ElTIIKK PaUTY —
Ilohnan v. Jnhnsun
EXCKPT WIIKKK IlLKOAL P[TUrOSI': IS NOT (;().M1'I.I:TEI) —
Spring Co. v. Knowlton
PAOE.
.. 102
. 103
. 10«
. 108
TART VII. — Pfufoumance uf Contkacts.
DiSCIIAUdK HY xVCT OK PKOMISKE —
Feck V. United States , , 110
DisciiAiuiK BY Act ok La\v —
Baibj y. Dc Crexpigny HI
Impossiiumty ok Pkkkokmanck. —
Ta'jlurw Caldwell 113
Impossiiumty' by Act ok God —
Ii()bi)is(}n V. Darinon . . . . . . .114
Deweijv. Union School District . 11(»
RkNUXCIATION BkFOKE PKHFOltMANCK (ilVKS RuillT TO Sui: —
Ilochstcr V . De La Tour 117
Frosty. Kniijht 118
CoNSTiaCTION OK CoNTUACTM —
Itoe V. Tranmar .119
Brkacii of Pi«omi8K ok Makkiagk —
Wrif/htnutn v. Coatcs 120
Atrhinsan v. Baker . . . . . . . .121
Willard v. Stone 122
An Entirk Contract cannot, hk Apportionkd —
Cutter y. Foicell 123
Mf,asi:rk, of Pamagks ox Brkach of Contract —
Iladley v. Baxendalc 125
Pknaltiks axi> Liquidated Damages —
Kcmble v. Farren , 12()
Fraudulent Ooxvevances —
Ti{iyne''s Case 128
X CONTE>' S.
I'AGE.
Recovery of Moxey Paid uxdek Mistaki: —
Marriott v. Hampton ....... 130
PART VIII. —Sales.
When Sale Complete, Pkoperty Passes at Oxce —
Tarlincj v. Baxter 132
Unless S()metuix(i Remaixs to he doxe —
Gihhs V. Benjamin ........ 133
Warranties —
Chandelor v. Lopus ........ 134
iMPLtED WaURAXTY OE QUALITY OF GoODS —
Jones V. Jnst ......... 136
Warranty must re Durixg Course ok Sale —
Ilor/ins v. Phjmpton 138
PART IX. — Principal and A(;knt.
Special Aoext .mist Pursue Authority —
Batty V. Carswell 139
Death of Prixcipal Revokes .Vuthohitv —
Harper \ . Little ,. . . 110
COXTRACTS WITH AOEXTS OF UmjISCLOSKD PltlXcn'ALS —
ratersonx. Gandaxeqni . . . . . . .111
Thomson V. Davenport 143
Stone V. Wood 145
Set-Ofe Against Piuxcipal —
Geortje v. Cbujett 140
Agent Exceedlng Authouitv Liarle in Coxirac r —
ColJen V. Wright . • 148
Partnership I.iaiulitv —
Wauyh v. Carver .150
Cox V. Hickman 151
PART X. — Negotiable 1'aper.
The Requisites of a Promissory Note —
Ke.lley v. Hemmingicaij 153
•|
PAGE.
. 130
. 132
, 133
. 13-1
. 13(1
. 138
CONTENTS. XI
PAGE.
Title to Bank Notes —
MiUrr V. lidce ,154
Who is a " IIoLoi.it fou Vau-k " —
Swift V. Tijsoh 155
NOTICK OK DiSIIOXOI!, WIIKN XlOCKSSAHY —
Bkkordike v. Bulhunn 157
UxAUTiioi!i7.i:i> Altkuations Vitiate the Ixstrumext —
Master v. Miller 158
Negligexce IX DiiAwixo Check —
Young v. Grote lOO
Stoppage i\ Tuaxsitu —
Lickbarrow v. Mason IGl
Statute of Limitatioxs —
Whitcomb v. Whiting 103
PART XI. — Laxdlouo axd Texaxt.
13!)
140
111
J 13
145
i4t;
148
150
151
PaYIXO ReXT FOU 1)ESTI!0YK1) I'kemises —
JIallctt V. Wijlie
No Wahkaxty as to Coxditiox ok Phemises —
Clcvcs V. IVilloitijhb'j ....
Except it is a Fchxished House —
Smith V. Marrablc
EEEECT 0\ TeXAXT OI' M()I!T(!Al!E BY LAXin.OKD-
Kecch V. I fall
Moss V. Gallinwrc .....
USA(iES A.VI) CrsTOMS —
Wigglesinorth v. Dallison . ...
Leases eoi! moije thax Three Yeahs —
li'igg.- V. Hell
Claytun v Dlakey
ACUICULTUIIAL FiXTI KES —
Ehi'c.s V. Mawe,
COVEXAXTS THAT " RlX WITH THE LaX1> " —
Spenccr^s Case
Waiveh oe Coxditiox ix Lease —
Dumpor''s Case
. 1G5
. IGG
. 1G7
. 169
. 170
. 171
. 172
. 173
. 174
. 178
. 180
153
«.WM.Wi
Xll
CONTENTS.
Goona Pkivilkgf.d fkom Distkkss v*ni Eknt
Simpson v. J/artopp
TAOK.
. 182
PART XII. — Insuuance.
CONCKALMKXT OK ^MaTKHIAL FaCTS —
Carter v. Borhm 18(!
FlKK IXSI'RAXCK — Cl'STOMAUY UsK o:' PlIOIIiniTKl) AkTK I.IIS —
Harper V. City Ins. Co 1.S7
Who may Ixsure tiii: Liki: ok Axotiikij —
Conneclicut, etc., Ins. Co. v. Sehaefer .... 189
PART X III. — Bailments.
TlIK DiKKEltKXT KlXDS OK BaILMKXTS —
CoyijH V. Bernard
Liabilities ok Ixx-kekpeus —
Cayle's Case
Berkshire Woollen Co, v. Proctor .
RKsroxsiniLiTY ok Cauuikk ok PASSKXciKus Koi{ 1)i:kk
Vehicle —
Ingalls v. I}(7^s
Railroai> Time-tarles and Coxthacts —
Denton v. Great Northern It. Co. .
POWEK OK CAniUEIi TO LllMIT LlAlHLITV —
Ilollistcr V. 2k'owlen
Liability kok Ixjcuy to Free Passkxgeii —
Fhiladelphia, etc., It, Co. v. Derhy .
THAVELLIN(t OX " FUEE PaSS " WITH CoXDITIONS —
Itailroad Co, v. Lockicood ....
Who Caimueu may Refi'sk to Oahhv —
Tlmrstonw Union Pacijic It, Co. ,
What is ''Bacgaoe " kok wiik^ii CAintiEu is Rksi-onsih
Neic York, etc.. It. Co. v Fraloff .
TIVE
-i: —
11)4
1 ;•!»
200
202
204
205
207
L09
210
212
I'ART XIV. — Ni;(;Li(iENCE.
Injury Resi'ltixc; kuom Unintentional Accidext
Broicn v. Kendall
>15
'«
I'AriE.
. 182
. i8(;
rici.Ks —
. 187
. 189
194
199
200
■:rK( Tivi:
■iiiu.i;
. 202
. 204
. 205
. 207
. 109
. 210
212
. 215
CONTENTS. XIU
PAGE.
oxk must so usk his puopekty as not to injure ims
Neighhou's —
Fletcher v. Itylnnds . 216
Liability rou Injui:iks ijy Animals —
May y. JBiirdett 218
SicLLiNd Poison with Harmless Label —
Thomas v. Winchester 219
Removing Support of Land —
ranton v. Holland 220
Persons Coming ox Another's Premises —
Indcnnanr v. Dames 221
Injuries erom Non-repair of Buildings —
Todd V. Flight 223
Res Ips.e Loquitir — Presumption t>F, Negligence from
Accident —
Byrne v. Boadle . 224
Responsibility <>f ^Master foi: Wilful Acts of Servant —
McMamis v. Crickctt 225
Employer not Liable for Negligence of Independent
Contractor —
Ililliard \ . Ilichardson . 227
Liability of Mastek for Injury to Pellow-Servant —
Priestley v. Fowler 229
Farwell v. Boston, etc., li. Co 231
Contributory Negligence —
Butterjleld v. Forrester 233
Davies v. Mann 234
Imputed Negligence —
Bennett \. Nexo Jersey li. Co 235
Contributory Negligence ov Children —
Lynch v. Nurdin ........ 237
Contributory Nfgligence of Parent —
Uartjield y . lioper 239
Proximate and Remote Cause —
Scott V. Shepherd 240
Fent V. Toledo, etc., Ji. Co 241
PART XA\ — Miscellaneous Touts.
Nuisances —
St. IIelen''s Smelting Co. v. Tipping .... 243
fl^wljl
XIV
CONTENTS.
PAfiE.
Falsi; RioniESENTATioxs —
Paslcfj V. Freeman L'l5
Lamjridge v. Levy i'48
Rights or Fixokus — Posskssion — rijKst'.Mi'riov —
Annorij v. Delamiric ....... 251
"Ix.ii'Kv" WiTiiorr Damagk —
xishhtj V. White 252
Damage Without " In.iikv" —
Chusemore v. Jlichards ....... 2,'ill
Tkespass —
The Six Carpenters^ Case 25(i
PowEHs OK SiiEHirrs —
Semai/ne^s Case ........ 258
AcTioxs Agaixst Magistrates —
C repps \. Burden :;'(;i
Maliciois Pkoskcutiox —
Munns v. Dttpont 2(2
Sl.AXnEI! — I)EEAMVTf»i:Y WoUDS, MHEN ACTION Alil.K AND
WHEX Not —
Pollard V. Li/on 2ii;?
Lnmb'j v. Alldaij 2(U
Damages in Actioxs or Tout —
Vicars v. Wilcaeks .... ... . '>iX
Lumley v, Gye . 2i;s
No COXTHIIUTIOV ni-.TWEEX DeKEX;)AMS in Tokt —
Merryiocather v. Nixan ^[V.)
PART XVI.— Evii.KNd., Kt.:.
Hearsay EvmKxcK —
Didsbnry v. Thomas ^71
Declakatioxs itv Persox.s Sixce Deceased —
Price V. Earl of Torrimjton 27(;
Declakatioxs »y Deceased Persons Against tiikir In-
terest —
Ilighamv.Iiidgway ^77
PRE.SUMrTIOX OF DkaTH FROM AllSEXCE —
Nepean v. Doe <,-^
CONTENTS.
l'A(iE.
. 2 1 5
. i'48
. 251
ESTOPPKLS —
Duchess of Iu)igston\'i Case
Local axd Tkaxsitohy Actions —
Jlosti/n V. Fdhrigas .
USH OK lIlCiinVAYS — Pl.KADING —
Dovaston v. P<(>jiie .
XV
PAGE.
. 27!)
. 283
. 284
. 2,)(i
258
. 2(11
•
2( 2
1", AND
2(1;?
•
2(:i
2f;n
• •
2(;,s
2!;;)
271
27C.
TiiK Pkincipai, Maxims OK tiik Law
Taiji.k. ok AnnuKviATioxs .
Index
. 287
, 293
. 301
III I.\-
. 27«.
i
TABLE OF CASKS.
i
i
i
A(l;iins V. Lindsell
Alger V. Thacher
Armory v. Delainirie .
Ashby V. White .
AspdcMi's Estate .
Atchinson v. Baker
Atherford v. Beard
Ayrc V. Craven .
Baily v. Do Crespigny
Bainbridge v. Firinstone
Baldy v. I'arkt'r .
Bank of Colaml)ia v. Patterson
Bartholomew v. Jackson
Ratty 0. Carswell
Baxter v. Portsmoutli .
Beaumont v. Reeve
Behn v. Burness
Bcm;ett ■«, New Jerse}^ R. Co.
Berkshire Woollen Co. v. Proctor
Bickerdike v. Bollman
Birkmyr v. Darnell
Blackett v. Royal Exchange Ass. ('(
Borland v. Guffey
Boston Ice Co. v. Potter
Boston and ]\Iaine R. Co. v. Bartlett.
Boulton I'. Jones
Box V. Jubb
PAGE.
. 11
. 98
. 251
. 252
.• 78
. 121
. !)7
. 205
. Ill
. 29
. G7
. 53
. 2
. 139
. 51
. 37
. 26
. 235
. 2U0
. 157
57
. 85
. 20
. 23
3
. 25
. 217
(xvii)
■'-■wppi
xvm
TAHLE OF CASES.
PAGE.
Boydell v. Drummoiid 71
Bro!2;(l(Mi V. Marriott ....
. 97
Brown V. Edginijtoii ....
. 137
Brown V. Kondall ....
. 215
Brunnnell v. jMacpherson
. 181
BnlUlcy v. Landon ....
. 38
Buiin V. Riker .....
. 97
Burgess v. Hnxy ....
. 228
Buttorfiold V. Forrester
. 233
B3'rne v. Boadle ....
. 224
Carter v. Boehra ....
. 186
Ca3'le's Case
. 199
Chaiidelor v. Lopus . . _ .
. 134
Chascmore v. Richards
. 253
Clayton v. Blakey ....
. 173
Cleves V. Willoiighby .
. 1G6
Coggs V. Bernard
. 194
Collen V. Wright ....
. 148
Collins V. Blantern
. 89
Collins V. Godefroy ....
. 34
Connecticut, etc., Ins. Co. r. Schaefci
. 189
Cook V. Bradley
. 36
Cooper Kane ....
. 80
Cornish v. Al)ingtou .
. 281
Cowan V. Milbourn
. 92
Cox V. Hickman
. 151
Crosby v. Wadsworth .
. 59
Crawford v. Russell .
. 103
Crease v. Barrett
. 274
Crepps V. Durden . ,
. 261
Cumber v. Wane
. 35
Cutter V. Powell
. 123
Da Costa v. Jones
. 97
Dalbv V. India, etc., Life Ass. Co.
. 192
TABLE OF CASES.
XIX
I'AGE.
. 71
. 97
. 137
. 215
. 181
. 38
. 97
. 228
. 233
. 224
. 186
. 199
. 134
. 253
. 173
. :G6
. 194
. 148
. 89
. 34
. 189
. 3G
. 80
. 281
. 92
. 151
. 59
. 103
. 274
. 261
. 35
. 123
. 97
. 192
Davies v. Mann .
Debenhani v. Mellon .
Denton V. Great Northern K. Co
Dcwi'y V. T'nion School Dist.
Dexter v. Spear .
Didsbiiry v. Thomas .
Ditchburn v. Goldsmith
Doe V. Bliss
Dovaston v. Payne
Duchess of Kingston's Ca .e
Dnmpor's Case .
Duncan v. Baker
Dut^^on V. Gerrich . .
Eastwood V. Kenyon .
ICIiason v, Ilenshaw
Kllis V. Shetlield Gas Consumers'
Khnore v. Stone
Eltham i'. Kingsman .
Elwes V. Miiwc .
Evans v. Jones .
Farwell v. Boston, etc., R, Co.
Fehhouse v. Bindley .
Pent V. Toledo, etc., H. Co.
Fetrow v. Wiseman
Flsli V. Kempton
Fletchers i'. IJylands .
Frost V. Kniglit .
George v. Clagett
Gcrst V. Jones .
Gil)bs V. Benjamin
Gilbert v. Sykes
Given v. Blann .
Godsall V. Boldero
Co.
I'AGE.
. 234
. 47
. 204
. 116
. 266
. 271
. 97
. 181
. 284
. 279
. 180
. 125
. 169
63
6
229
68
98
174
97
231
8
241
41
148
216
118
146
137
133
97
184
192
1
XX
TAHLE OF CASES.
I'AOK.
Good r. Elliott
. 96
Goss r. \ii<:c'nt ...•••
. 74
Gulic'k V. Wanl .
. 87
Hivdlcy V. BaxiMiihilr .....
. 12.5
Ilallett V. Wylie
. 16o
Ilarpir v. City Ins. (' ;
. 187
Harper o. Little ....■•
. 140
Ilartlii'ld r. Kopci' .....
. 239
Hartley v. Kico ......
. 97
Iligliam r. Ridgway .....
. 277
Hill V. Kidd ......
. 97
Hilliard v. Kichardsoii ....
. 227
Hochster v. Do. La Tour ....
. 117
Hockenbury r. IMeyors ....
. 32
IJogiiis V. Plyinptou . . . . •
. 1.38
Hole V. Sitting IJouriu' K. Co.
. 229
Hollistor V. Nowlen .....
. 20.'>
Holinan c. Johnson .....
. 106
Holt V. Claroncieux
. 44
noi)kirk V. Page .....
. 1.58
Iloskins c. Paul ......
. 183
Housc'hokl Fire Ins. Co. v. (.Jrant
. 14
Hunt V. Peake
. 43
Inderinaur v. Dames .....
. 221
Ingalls V. Bills
. 202
Jolly I'. Recs ......
. 48
Jones V. Bright . . . . . .
. 137
Jones V. Just ......
. 133
Jordan v. Norton .....
. 19
Keech v. Hall ......
■. 169
Kelley v. Ilenimingway . • .
. 153
Kemble v. Farren .....
. 126
1
PAGE.
74
87
125
1()0
1H7
140
2.".!)
97
277
07
227
117
32
229
2 or)
100
4 1
ir)8
183
14
43
221
202
48
137
13G
19
1G9
la3
y.
126
s
■#
TAIUJ: OF CASKS.
4
Kii'ksiiill I^cwiTv Ci). r. Fiiriu-ss K*. (
Ki'oiu /'. Scliooiiiiiiik'cr
Ivvlo r. KavHiiaiiiili
LiiiiipU'inIi /". HnttlnvMit
L;in<j^ii(lii;(> /'. Levy
Lvo V. (Ji'illiii
Li{!l<l)a,T()\v /•. Mason
Loffiis V. Miwv
Loriiig V. City of Bost:)ii
Lowe -?'. Peers
Luiiiby V. AUday
Liimley v. Oye .
Lumlcy i\ Watrnoi'
Lynch /'. Nnnlin
^Int'lay v. Harvey
Malpns r. London it Soiit
INIanby i\ Se:)lt .
^larriott o. Hampton .
Marzetti v. Williams .
IMason 0. C'hapjx'll
ATaster v. jNIiller
."May /'. Bnrdett .
]Meriyvve.'itIier r. Xixaa
Miller V. Ktiee
^litclu'l V. Reynolds .
^litchell V. Kingman ,
:\ritehell v. Keed
^[ont!iL!;u V. Benedict .
^loss V. Gallimore
IMost^ni 0. Fuhrigas
^Innns v. Dupont
^[nrray v. Currie
IMcManus v. Crickett .
west
■vn n. Co.
XXI
27;-)
52
25
39
248
GO
IGl
282
9
102
2G4
2G8
2G8
237
7
79
45
130
255
137
158
218
2G9
164
101
50
282
4G
170
283
2G2
228
225
%
XXII
TAIJLK OF CASES.
PAdE.
Ni'lsoii V. Livi'rpool Bivwi-ry Cu. .... '221
>i'i';)C!n r. Doe .
. 278
New York Centnxl K. Co. r. Kriiloff
. 212
Nichols x\ IMarshnid .
. 217
Noe V. Gibson ....
. 184
Pulfrey r. Portliiiid, etc., \\. Co.
. 32
ranton r. Ilollaiid
. 220
Pasley v. Fivi'inaii
. 245
Paterson v. Oaiidaseciiii
. 141
Pat tee v. (Jreeley
. 93
Payiu! V. Cave .
. .5
Pearee v. Brooks
[)-)
Peck V. r lilted States .
. 110
Peter /'. Coini)ton
60
Peters /•. Fleminji'
. 42
Philadelphia, etc., R. Co. r. D.-rl
207
Pollard V. Lyon .
203
Price V. Earl ot Torriiigt:)i:
27G
Priestley v. Fowler
229
Pyin V. Campbell
7G
Railroad Co. r. Lockwood .
209
Rami V. Hughes ,
28
Reg V. Eliss ....
Reynolds r. Nugent .
Rigge V. Bell ....
274
34
172
Robl)ins I'. Ciiicago .
Robinson v. Davison .
229
J 14
Roe V. Trainnar ....
119
Rust V. Gott ....
97
St. Helen's Smelting Co. v. Tipping
Sargent v. Adams ....
243
Scott V. Ave:y ....
Scott V. Sliei)herd
.
91
240
.j TAllLi: OF CASES.
will
VAdK.
I'AflE.
. 221
Si'Mtoii r. IJi'iK'dict . . . . .
, 47
. 278
Soiiiiiyiio's Ciisi' ......
. 2r>8
. 212
Slicrmiin v. Kitsmillcr . . . .
. 16
. 217
SliiiidltT V. Houston . . . . .
. 70
. 184
Short V. Stotts ......
. 59
\ Simpson r. Iljirtopi) . . . . .
. 182
. 32
Six CarpontiTs' Cmsc, 'I'lit! . . . .
. 2.-)(;
. 220
Smith ('. Miirrnble . . . . .
. 108
. 24-)
Smith V. Wilson
. 83
. 141
Souticr V. Kt'llorman . . . . .
. 81
. 0.']
Spencer's Cuso
. 178
5
Sprinj^ Co. v. Knowlton . , . .
. 108
. 0')
SI ilk V. :\ryric'k ......
. 35
. 110
Stone V. Wood ..,,..
. 145
. 60
. 42
Swift V. Tyson
. 155
. 207
Tiuling V. Biixter . . „ . .
. 132
. 20;]
Turry v. Asliton . . , . . .
. 224
. 270
Tiiyloe V. ]Merfh:nits' Fire Ins. Co.
. 12
. 229
Taylor v. Caldwell
. 113
. 70
Thomas v. Winehester . . , .
. 219
Thomson v. Da,venport . , .
. 143
. 209
Thorogood /;. Bryan . , . . .
. 236
. 28
Thurston v. Spratt . . . . .
. 137
. 274
Thurston v. Union Pacitlcj R. Co.
. 210
. 34
Tisdale v. Harris . , . , ,
- . . G5
. 172
Todd V. Flight ....,,
. 223
. 229
Tool Co. V. Xorrls . . . . .
. 88
. 114
. 119
Twyne's Case ....,„
. 128
. 97
Viears v. Wilcoeks . . . , .
. 2G6
. 243
Viseher v. Yates . . . . .
. 97
. 77
. 91
. 2^0
Wiiin ?'. AVarlters . , . . .
AVaugh ('. Carver . . . . .
. 62
. 150
XXI v
TABLE OF CAUSES.
AVliatinaii v. Pcnrsoii
Wlioadon r. OMs
Wliilcoiiili r. \Miitiiii'-
White V. Bliu'tt .
White V. C'orlics .
WiooU'sworth r. Dallisor.
WiU:n'(l V. Stone
AViiliaiiis r. (';ii'\v!ir(hiie
Williiunsoii /'. Siiiiimiiis
Wriohtmaii r. ('oatrs .
P.VOE.
. \:V2
. ir.8
1
. 171
. 122
. 22
. I. '5 7
. 120
Ydiinu' V. (irote .
;c.o
Zalcski r. V\i\v\:
IM
P.VdK.
227
i;52
ir.-")
30
1
171
122
22
i;57
■20
LEADING CASES SIMPLIFIED.
I. — Formation of Contract.
100
IS
TWO REQUISITES TO CONTRACT, VIZ.
POSAL AND ASSENT.
PRO-
..«
WHITE V. CORLIES.
.1
[■to N. Y. 4G7.]
White was a huildor, and Jorlies & Co. were mer-
chants, all doing business in Now York City. The
latter had talked to White about refitting their offices,
which negotiations culminated in their sendinsr a note
to him in these words : —
*' Upon an agreement to finish the fitting up of of-
fices 57 Broadway in two Aveeks from date, you can
begin at once."
Now, if White had known as much about the law as
he did six years later, he wouUl scarcely have ])()Ught
his lumber and commenced work without tellin<r Corlies
& Co. that he wouhl take the jf>l). But tiiis is just
what he did ; and when Corlies & Co. the next day
iki-
2 LKAI>IN'(J CASKS snil'LiriKD.
('..iintcniiMiidod the nvdcw tlioiv .seemed nothing for
him to do but to brii)«:- ;iii action iigain.st thoni for brcjieh
of contract. But Iuto he made a mistake again, for
till' Court of Ai>i)("als of New Yoric decided that there
was no oontraot to sustain an action. They said the
rule of law was, tliat wlien an otler is made by one party
to another when they are not together, the acceptance
o{' it by tlie other must l)e made munifest to him.
Until that is done there is no contract. True, White
hail made up his mind to accept, for he l)ought the
hunber and commenced work. But a mental deter-
mination, not indicated by speech or put in course of
indication l)y act to tlie other party, is not an accept-
ance which will bind the other.
BARTHOLOMEW v. JACKSOX.
[20 Johns. L'S; 11 Am. Doc. 287.]
liartholomew and Jackson wcrc^ fanners and neigh-
bors. A stack of Bartiiolomew's wheat was in Jackson's
tield, which Bartholomew had promised to reinovi; in
time tor ,lacksoii to })repare thci ground for sowing.
The time having arrived, Jackson scnit a message to
T?.,..fi>,.i, ,...,.„. ,.ri.:,.i. „.,.., ,i..i;,„.,.,.,i f,> i.v, r.,..>;i„ ;,. i.:_.
ine uiiie ii;i\iiii; anivcu, .jju'ksuu .s(!iil a ine.ss;i:ic lo
Bartholomew, which was delivered to his family in his
absence, requesting the inuneiliate removal of" the
wheat as he wanted to burn the stubble. Bartholo-
mew's sons sent l)ack Avoi'd that they woidd remove
it the next morning. 15ut the ne.xt morning they did
not appear, and so Jackson, having commenced to burn
lotliiiiii; for
I for brctich
3 a<rain, for
that there
ey said the
y one party
acceptance
it to him.
rue, Wliite
l)ought the
iital (k'ter-
1 course of
an accept-
FORMATIOX OF CONTRACT. 3
the stul)l)h!, and believino: the stack to be in dan<ier,
removed it liimsolf. Jackson tliouuht some one ouulit
to pay him for his troubhs and although the Supreme
Court of New York considered it very unwoi-tliy of Bar-
tiioh)me\v to resist such a cUiini, thev were ol)!!"^^! to
decide tiiat he was not lei>allv l)ountl. AVhen Jackson
saw I]arthoh)mew's stack in danircr of ])urninii: :ind
Avent to work to remove it, he imi)liedly made an offer
to Bartlioh)mew to remove it for him, l)ut it was an
offer which was uncommunicated to, and unacccj)ted
by Bartlioh)niew, and therefore there was no contract
on whicli Bartholomew could l)e held.
PROPOSAL C^mxOT BE RETRACTED AFTER
ACCEPTANCE.
and neiii'h-
1 tiackson's
remove in
or sowinix.
nessau(! to
mily in his
'al of the
Bartholo-
dd remove
•i" they did
3cd to burn
BOSTOX AXI> MATXE R. CO. v. BARTLETT.
[;( Ciish. •l-l\\ Liiuiitl. Cas. on Con. 10:5.]
" We will sell you our land for $20,000 if you will
take it within thirty days," wrote the defendants in
this imi)ortant case, to the officers of the Boston and
Maine llaih'oad Company. The officers of the cor-
poration thought over the nialter for some time, and
Hnally several days before the thirty days had expired,
notiHed the defendants that they would accei)t the
oiler, tendered them the $l>(),000, and asked them to
wmm
LEADING CASKS SIMPLIFIKD.
])iil their s!_n-ii;itur('s to ii cU-cmI of the luiid in proper
form. Then the defeiidunts tried to l):ick ont of the
nirroenient, but the Supreme Judicial Court of ^las-
sachusotts .said it was loo hite to do that. " Thougli
llie writiiii:- siiiiied ^)y the .lefenchints was but an otfer,
and ail oll'er wliieh ini^-ht be revoked," said the court,
" vet, while it remained in force and unrevoked, it
was a continuino- offer durin<r the time limited for ac-
ceptance, and dnrinj.' the whole of that time it Avas an
oiler, evciT instant ; but as soon as it was accepted it
ceased to be an offer merely, and then ripened into a
contract. The counsel for the defendants is most
surely in the riuiit in sayinii' that the writing, when
made, was without consideration, and did not, there-
fore, form a contract. It was then but an ofler to con-
tract ; and the i)artics making the oiler, most undoubt-
edly, might have withdrawn it at any time before
acceptance. But when the ofier was accepted the
minds of tlu' i)arties met, and the contract was com-
plete. There was then the meeting of the minds of
the parties which constitutes, and is tlu; definition
of, a contract. The acticptance by the j)laintiirs
constituted a sufHcient legal consideration for the
engagement on the part of the defendants. There was
then nothing wanting, in order to perfect a valid con-
tract on the part of the defendants. It was precisely
as if the parties had mot at the time of the acceptance,
and the offer had then been made and accepted, and
the bargain completed at once."
FOHMATION OF CONTRACT.
m proper
:)iit of the
t of Mas-
" Thouo-li
t an oiFor,
the court,
evoked, it
id for ac-
1 it Avas an
^cepted it
led into a
i is most
ing, when
lot, thcre-
fer to con-
; undoubt-
ne before
:?pted the
was com-
! minds of
definition
phiintilfs
n for tlie
Tliore was
valid con-
precisely
cceptance,
'pted, and
BWIJIXa AT AUCTION'S.
PAYXK V. CAVE.
[3 Term Rop. 148 : Limga. Cas. on Con. 1 .]
There was an auction sale at which Cave was one of
the bidders; A certain article being put up, there was
some spirited ])idding. Cave's l)id of £40 l)eing the
last. The auctioneer sang out -' going, going, going,"
but was so long coming to "gone," that Cave said,
" Why do you dwell? you will not get more." Still
the auctioneer refused to knock the article down, and
l)eii:an, instead, to tell the spectators Avhat a bargain
thev were letting slip. Cave again interrupted, and
asked the auctioneer if ho would warrant what he said.
The auctioneer refused. "Then," said Ctuve, "I
won't take it." No one else wanting it, the auc-
tioneer was forced to sell it next day at a loss of ten
pounds on Cave's bid, against whom he afterwards
l)rou"-ht an action for the dilt''M'ence. But Lord Ken-
vox, who tried the case, was of opinion that Cave was
at liberty to withdraw his bid at anytime before the
liiimmcr was brought down, and non-suited the plain-
till'. So thought the whole court on appeal. The
assent of both parties, tliey said, is necessary to
make a contract binding. This is signified on the
part (>f the seller by bringing down the hannner or
calling out "gone" or "sold," wiiicli was not done
here until the defendant had retracted his oiler. An
auction is not ina[)tly called Jams pvenitentim (a place
^m^
6 LEADING CASKS SnU'LiriEI).
for Topontancc). Every l)i(l is notliing more thiin an
ollVr, wliich is not biiuling till accepted.
PROPOSER MAY PRESClilBE TIME, PLACE AND
FORM OF ACCEPTANCE.
ELIASON V. HENSHAAV.
[4 Wlioiit. L'25.j
E. & Co. ofFercd to l)uy tlour of II., the answer to be
sent by the return of the wagon which carried the offer.
H. sent u letter of acceptance, l)y mail, to another place,
which was not the destination of tiie waijon, havinii:
reason to l)elievc that his answer would in this way
reach E. &Co. more speedily. The Sui)reine Court of
the United State:; held that E. & Co. were not bound
by the acceptance so sent. An acceptance, said Mr.
Justice Washington, communicated at a place dif-
ferent from that pointed out by E. & Co., and forming
apart of their proposal, im[)osed no obligation l)indlng
upon them, mdess they had acquiesced in it, whiidi they
declined doing. It is no argument that an answer was
received at another place. E. & Co. had a right to
dictate the terms n[)on which they would purchase the
flour; and, unless they were com[)lied with, they were
not l)ound hy them. All their arrangements may have
been made with a view to the circumstance of place.
re thiin an
ACE AND
1
^1
FOJtMATION OF CONTRACT.
and they were the only judges of its importance.
There was, therefore, no contract concluded between
these 23fU'ties.
MACLAY V. HARVEY.
iswcr to bo
1 the offer,
ther i)Iace,
on, haviiiijf
I this way
e Court of
lot bound
said ]\Ir.
l)laoo dif-
kI forniiiii;
)ij l)indini;
vhich they
iiswer was
a right to
rt'hase the
tiic}^ were
1 may have
of 1)1 ace.
[00 111. 525.]
A merchant wanted a milliner. In a neio-hborins:
town lived Miss Maclay, who was open to an engage-
ment of this kind. The merchant hearins: of her, dis-
patched a letter offering the situation, and asking for
her answer by return mail. Directly she had read the
letter, she sat down and wrote her acceptance on a
postal card. But instead of putting this in the post-
office herself, she gave it to a small boy to post for her,
which small l)oy carried it in his pocket, with his j^eg-
toi)s and nK?rl>les, for four davs before he posted it.
Meanwhile the merchant had made other arranirements,
so that when Miss Maclav reached his store accordins:
to the terms of the card which had linijrered in the
pocket of the small boy, she was notified that her
services were not required. The Supreme Court of
Illinois hold that she could not obtain any damages
for the breach of a contract without proving a contract
to commence with. She had proved a proposal which
required that she should assent by return mail, and as
she had not assented by return mail (the small boy
being her agent in the matter), but by a mail four days-
8
LEADIXCr CASKS SIMIT IFIEl).
later, slie hiul f:iil('<l to show acooptance of the mor-
chaiiCs ollor. And Jiidgiueut was given against the
miUiiier.
BUT NOT OF REFUSAL.
FELTHOUSE v. BIXDI^EY.
[11 v.. w. (N. s.) yuii.]
All uncle and nephew having voi'l)ally treated for
the purchase of a horse by llio former of 1 lie latter,
the nephew wrote to the uncle stating tliat he under-
stood that he (the uncle) had mistaken the price he
held the horse at — thirty guineas was the price, not
thirty jiounds. To which the uncle reiilied by letter :
"Your price, I admit, was thirty guineas. I ollercd
£30 ; never otl'ered more, and you said the horse
was mine. However, as there may ])e a mistake about
him, I will split the ditl'erenee. If I hear no more
about him, I consider the horse mine at £30 l")s."
He heard no more about him ; but the horse, neverthe-
less, was not his, for the court held that there was no
contract for his sale. The uncle had no right to im-
pose upon the ne[)hew ii sale of his horse for £30 ir)s.,
unless ho chose to comply with the condition of writing
to him. The nephew might have bound his uncle to
FORMATION OF CONTRACT.
9
f the imn--
gainst the
''t'
»
the biirgfiiu by writing to hini ; hut as he did not do
this, there was nothing l)ut an open offer, Avhich never
ripened into a contract.
OFFER MUST BE ACCEPTED WITHIN REASOX-
ABLE TIME.
reated for
llie hitter,
ho undor-
e price he
})rice, not
by h'ttcr :
I o lie red
the liorse
take about
r no niorc
£80 i:)s."
, nevcrthc-
3ro was no
izht to ini-
£30 l.')s.,
of writiniij
s uncle to
LORIXG V. CITY OF BOSTON.
[7 Mete. 40;>; Langd. Cas. on Con. 09.]
The citizen.s of Boston and vicinity, on the morning
of May 27, 1837, read this advertisement in their
newspapers.
" $1,000 reward. The frequent and successful repe-
tition of incendiary attempts, renders it necessary that
the most vigorous (efforts should bo mado to prevent
their recurrence. In addition to tlio other precautions
the reward heretofore oifered is doubled. One thou-
sand dollars Avill be paid by the city for the conviction
of any person engaged in these nefarious practices.
" Samuel A. Eliot, Mavor.
"May 27, 1837."
There had been a similar advertisement otfering $500
reward in the newspapers the day before, and both
continued to api)oar for about a week, when they
ceased. No notice of anv time durini; which thev
10
IJ'.ADIMi CASKS SI.MI'LIFIKI).
wiiuM lie in force, nrofanyrovocatioii of llio oTer, was
ever iiKid.' hy \\\v city Miilhorilios. In Jauuiirv, 1.S41,
Ihc Annorv IIoiiso iiiid scvcimI o(1um- Imihliiijrs in Bos-
ton were bui-ni down. Loring and another person,
suspect inir who the incendiary Avas, eonelndctl to hunt
liini up and <xvi the reward of four years ago. Thoy
pursued the inccn(nary to New York, had him ar-
rested, ])rought hack, convicted and sent to tiio State
Prison. But when they came to chiini the reward
they did not succeed so well, for they had to sue tlio
city for it,oidy to he tohl hy th(^ Supreme Judicial
Court of Alassachusetts that they couhl not recover
the $1,000. " The offer of a reward for the detection
of a criminal," said Chief Justice Shaw, of pious
memory, " the recovery of pi'operty and the like is an
oiler or proposal on the part of the person making it
to all persons, which any one capahle of performing
the service, may accept at any time hefore it is revoked
and perform the service ; and such offer on one side,
and acce[)tance and performance of the service on the
other, is a valid contract made on good consideration,
which the law Avill enforce." lint an offer cannot ])e
supposed to last forever, and as there was no limit in
terms in the advertisement, then,l)y a general rule of
law, it was limited to a reasonable (hue, that is to say,
the service must he done or the offer accicpted within a
reasonahle time after the offer was made. And thi'ec
vejirs and eight months was not, in the opinion of the
Chief Justice and the other meml)ers of the court, a
reasonal)le time within which the offer in question
could he considered as a contiiming offer on the part of
the city. And so Loring and his partner went un-
rewarded for their trouhle.
FOKMATIOX OF CONTRACT.
11
o oTer, was
iitirv, 1.S41,
iijxs ill Bos-
un" person,
cd to liunt
iiro. Thev
ul him ar-
tho State
Mie roward
1 to suo tlic
lie Judicial
lot recover
o detection
', of j)ious
like is an
. making it
porfonning
is revoked
II one side,
ce on tho
ideration,
cannot bo
no limit in
n-al rule of
t is to say,
:m1 within a
And three
ion of the
10 court, a
u (juestion
tho part of
went un-
CONTRACTS BY POST.
;s
ADA3IS V. LIXDSELL. ,
[I Barn. & Aid. (181.]
Mr. Lindsell, wool-dealer at St. Ives, one day wrote
a letter to Messrs. Adams & Co., woollen manufac-
turers of Bromstrrove, otlering to sell them a quantity
of wool at a certain price, hut adding that he must
have their reply if they wished to close, " in course of
post." Now, whereas l>romsgrovo is in Worccstjr-
shire, Mr. Lindsell was iijnorant enouurh to address his
envelo[)o to " Bronisgrove, Leicestershire," and in con-
sequence of that mistake his letter reached its destina-
tion several days late. Directly Adams & Co. did re-
ceive it, thinking tho otfer a decidedly good one, they
wrote off and accei)ted it. But in tho meantime ]Mr.
Lindsell had infei-red from their silence that they did
not want his wool, and the day before their letter
reached him, but alter it had heen posted, had sold it to
some one else.
This action was brought for non-delivery of the
Avool, and the defendaut contended that ho had a riuht
to retract his otfer till notiticd of its acceptance, and
urged that he could not be bound on his side till tho
plaintids were on theirs. But the court said : " If that
wore so, no contracit could ever bo com[)leted by the
post. For if the defendants were not bound by their
otfer, when accei)ted by the plaintitfs, till the answer
was received, then the plaintitfs ought not to be bound
12
LKAUINO CAfSKS ^^IMl'LIFIEI).
till litter Iht'v li;i<l rccciwd tho notificiitioii tliiit the
(lofeii.liints Imdm-eivi'd their iiiiswin' iiiicl iisseiitod to
it ; Mini so it iiii-i-lit <ro on ad injinifum. Tho dtdciul-
an'ts must ho coiisidcivd in hiw as niiiking, during
ovorv iiistiint of the tiino thoir letter was truvoUing,
the smiio idciitic.'d oll'cr to tho phdntitrs, und then the
contnict is completed hy the iicceptiiiu'e of it by the
hitter. Then, iis to tho (h'hiy in notifying tho Jieeept-
iiiiee, thiit arises entirely from tho mistake of the
(lefendiiiits, and it IhercfoiH" nnist be taken as against
them, that the plaintitls' answer was received ' in eonrse
ot post.
TAYLOE V. 3IERCIIAXT.S FIllE INS. CO.
[i» How. ;!!I0; Lauixd. Cas. (»n Con. IOC.]
Mr. Tayh)o (not Tayh)r) w.UiKd to insure his resi-
• T-»- 1 1 /I i... \r' •...:. TT i:. .1 j.
doneo in Richmond County, Vo'-fiiiia. Ho api)lied to
tho h)eal agent at Froderieksbuig, and after considera-
l)lo eorresjjondenee l)et\veen the hitter and the head
office in Baltimore, tho agent, on Decenil)er 2d, wrote
to Tavloo who was then in Alal)ama, inforniiniji: him
that his a[)i)lication had been ap[)rovcd by tho com-
pany, and giving him the rates at which they would
'Msuro him. Tho a^ent havini:; misdirected the letter, it
as tho 2()tli of December before it reached him, but
,,. ,>„»,f .l..,r /(1,„ 01 * \ '^P.,,,l,v„ ,...i- ,1,....., .,...1 ,.,,...(,. *].„
I
in
w
th
Luo next day (the 21st) Tayloo sat down and wrote the
agent a note, telling him to deposit the policy in the
bank and enclosing him a check for the })reiniu'"
rOKMATION or t;t'N I'HACT.
18
II that tlio
ISSt'llttMl to
Mu) clcfeiu]-
iiijf, diiriiiu:
tnivelling,
(1 then tho
it by tho
tho iiocopt-
iko of tho
us against
'ill ooui'so
S. CO.
ro his resi-
s appliod t')
• roiisi(U'ra-
1 tho head
[• 2(1, wroto
nniiig him
f tho coin-
thov woiihl
ho lottor, it
d him, l)ut
il wrote tho
ilioy in tho
premium.
Tliis was rceeivod on tho ."ilst, but on the night of tho
2iM tho house was burned (h)\vn. Tho insuranoo com-
pany refused to reeognizo ]\Ir. Tayloc's chiim, and the
Supreme Court of the United States were ealled on to
dooido whotlior Tayh)e's accei)laiu'0 was eoini)let(! on
tho 21st, when ho posted his U'tter, or on tho 31st
when the agent reeeived it. This, one ean nnderstand
at a glaiioe, was a very imiiortant matter to Mr.
Tayloe, tor if tho eourt saitl the 21st was tho time,
then ho would i;et his insuraneo monev, otherwise not.
The company contended that they had a right to with-
draw their otfer at any time before notice of the
acceptance reached them. But tho court decided in
favor of Tayloe. An otl'or, thoy said, made through the
niiiil, inii)liodly authorizes an answer to be sent in the
same way, and the oiler cannot bo withdrawn unless
the withdrawal reaches tho party to whom it is ad-
dressed before his letter of renlv aiinouncinijf his
accei)tanco has boon mailed. When Tayloe had mailed
his letter of acceptance ho had done overvthiiig which
the offer rocpiircd him to do. Upon any other view
the pro])osal would amount to nothing and no contract
would ever bo completed, as the acceptance would be
but the adoption of the terms tendered, to bo in turn
l)roposod by the ap})! leant to the company for their
approval or rejection.
u
LEADINO CASKS SIMPLIFIED.
IIOLSEH(>I.l> FIRE IXS. CO. v. GRAXT.
[4 Kx. Div. 210.]
Tlio insurance ngoiit, in Mr. Ttiyloo's case, received
his letter after the house was l)urne(l down : and in
Adams v. LimUcU, the iin[)ortant letter which Mr.
Lindsell wrote about his wool, and which he mis-
directed, (lid at last reach the wool-manufacturers,
thoniih, so far as Mr. LiiulseH's interests woyg con-
cerned, very much behind time. \\\ both of these
cases, as we have just seen, the courts decided that
the contract was concluded Avhen the letter went into
the post-office, without regard to the time when it
reached the person to whom it was addressed. But
Mr. Grant waited for three years for his letter, which
never came, — and it has jirobably not come yet ; still
this did not make his case any ditlerent from Mr.
Tayloe's or Mr. Lindsell's. Here is the way the
trouble came about : ^Ir. Grant, who had some spare
cash to invest in stock, Avrote to th(^ Household Fire
Insurance Company (limited) asking them to allot
him one hundred sjiares in the company. The secre-
tary entered his name on the books, and replied l)y
mail th the shares had been alloted as he desired.
Mr. Grant never received this letter, and heard nothing
further from the company until three years afterwards,
when there came a notice that a matter of $.')()() or
so was duo from him for assessments on his shares.
Then Mr. Grant said that he didn't own any shares in
the company ; that his application had never received
an answer, and that there was therefore no contract.
But the English Court of Ai)i)eal thouirht otherwise.
FORMATION OF COXTUACT.
16
*' The contnict," sjiid Thesigeii, L. J., one of the
leanied judges who delivered the judgment, '* is
jictuailv made when the letter is posted. The uc-
ecptor, in posting the letter, has, to use the lan-
oiiaue of Lord Blackbukn, ' put it out of his con-
trol, and done an extraneous act, which clenches the
niaiter, and shows beyond all doubt that each side
is bound.' How, then, can a casualty in the post,
whether resulting in delay — which in commercial
transactions is often as bad as no delivery — or iii
non-delivery, unbind the parties or unmake the con-
tract? To me it ap[)ears that, in practice, a con-
tract complete upon the acceptance of an offer being
j)osted, but liabh; to be put aii <i\u\ to by an accident
ill the i)()st, would be more mischievous than a con-
tract only l)inding upon the parties to it upon the
acceptance actually reaching the olfercr ; and I can
see no principle of law from which such an anomalous
contract can bo deduced. There is no d()nl)t that the
implication of a complete, linal and absolute binding
contract bcinir formed as soon as the accei)tance of
an olfer is ^M)stcd, may, in some cases, lead to incon-
venience and hai'ilship. But such there must be at
times in every view of the hiw. It is impossible in
transactions which pass between parties at a distance,
and hav(! to be carried on through the medium of corre-
s[)()iidence, to adjust contlictiiig rights between inno-
cent i>arties, so as to make the conse(iuences of
misiake on the part of a mutual agent fall e(pially
u[)on the shoulders of bot' . At the sanie time 1 am
not prepared to admit that the implication in (piestion
will lead to any great or general inconvenience or
hardship. An otferer, if he chooses, may always make
I
i
1
16
LKAD1X(J CASES SIMPLIFIED.
the formation of the contract which he proposes
dependent upon the actnal oommnnictitiou to himself
of the .'icceptiince. If he trusts to the post, he trusts
to !i means of comnumiciition which, as a rule, does
not fail, and if no answer to his offer is received by
him, and the matter is of importance to liim, he can
make inipiiries of the person to whom his offer was
athlressed. On the other hand, if the contract is uot
fmally eonckided, excei)t in the event of the accept-
ance actually reaching- the offerer, the door would he
opened to the perpetration of nuich fraud ; and, put-
ting aside this consideration, considerable delay in
commercial transactions — in which dispatch is as rule
of the greatest consecpience — w-^nld be occasioned,
for the acceptor would never be entirely safe in acting
upon his accei)tance until he had received uotice that
his letter of acceptance ha<l reached its destination."
And ]\Ir. Grant was ordered to pay his calls.
UNCEUTATX AGREEMENT DOES NOT MAKE
CONTRACT.
SHEUMAX V. KITSMILLER.
[17 Scru'. & K. 15.]
In Pennsylvania, about fifty years ajxo, old Mr.
Sherman told Elizabeth, his niece, that if she would
rOUMATIOX OF COXTItACT.
17
Ml-.
live with liiin and keep lioiiso for him until somebody
married her, he woidd give her ii hundred acres of
land. She thought the otler a good one, and kept
house for him for several years, and until she was mar-
ried to a namesake of his ; but, very uidike a woman,
she never once, during all this time, asked the old gen-
tleman wJidt hundred acres she was to have. By-and-
hv he (lied, and as he had never carried out his })roni-
ise, and she was not even mentioned in his Avill, she
brought a suit against his administrator i'or the breach
of his [jroniise. The administrator did not deny the
facts, ])ut said that " one himdred acres of land " was
really t(t indctiuite a (]uantity to form a legal contract
which the courts could enforce. The court thought so,
too, and Klizabeth ^\ent away empty-handed, after
listeninu" to the followiniij remarks from the iudiic, who
dcilivered the oijiuion of the court: " If a certain ex-
plicit, serious promise was made with her, and the
prouiise was certain of some certain thing, it would ])e
bin(ii;!g. * * * J^ut th(>re would, in the present
case, bo nothing that even a court of chancery could
decrees performance; of, for the promisor himself would
not know what to convey, nor the promisee what to
demand. If it had been a proniiso to give her one
hundred pieces of silver, this would 1)C too vague to
support an action, — for what [)iecesV fifty-cent pieces
or dollars? of what denomination ? One hundred cows
or sheep would be sufficiently certain, Ix'causo the in-
tention would l)e that they should l)e at least of a
middling quality ; but one hundred acres of land,
witiiout location, without estimation of value, without
relation to anything which could render it certain, does
ap[)ear to me to be the most vauue of all promises ;
'i
4
•Ik
18
LEADlN(f CASKS 8IMPL1FEI).
niul if tiMVcoiitrnct can bo void for its uncertainty, this
must be. One liuuchcd acres on the Rocky Mountains
or in the Conostoi^a Manor; one hundred acres in the
Mountains of ILuiovcr Countv, Virirniia, or in the
Conewauii'o ricii lands of Adams County ; one hundred
acres of Georue Sherman's mansion i)lace, jit eiirhtv
dollars pei acre, or one hundred acres of his barren
lands at tive dollars? The promise is as boundless as
the terrestrial globe. The party would lie at the
morcj of the jury; there would be the same reason
for ten thousand dollars damages as for ten cents.
The court cannot enforce such an uncertain promise,
and the defendant nnist have judirnient."
ZALESKI V. CL.ARK.
[U Coiin. 218.]
Mrs. Johnson asked Mrs. Clark, a widow, if she
would not like to have a bust of her dear departed.
Mrs. Clark said she would, very much. Then Mrs.
Johnson told her of a friend of hers, named Zaleski,
who was a sculptor, and for Avhoni she was drummin"-
up business, and who would do the thing in first-class
style. She wouldn't run any risk, for she need not
take the bust unless she was satisfied with it. So Mrs.
Clark conclndi'd to perpetuate the features of lier hus-
band in plaster, and gave Mrs. Johnson a photogra[)h,
from which Zaleski made his cast. When it was
•A
i
FORMATION OF CONTRACT.
W
^1
1
liiiislu'tl everybody siiid that it was a fine piece of work,
Ix'sidcs being an accnrate representation of the de-
ceased Clark. But Mrs. Clarlc was not satisfied with
it, "When the sculptor asked her why, she could not
nive any reasons — it didn't satisfy her, that was all
the satisfaction he could <i:et. 80 he brought an action
I'di' the; ijrice she had agreed to pay, and he lost it.
He had contracted to satisfy a woman — a widow, at
that. This was sonicthing too uucertain for a court of
law to atteni[)t to define. If the sculptor had agreed
to make a l)ust perfect in every res[)ect, and one which
iho defendant oxujht to be satisfied witii, the court
might have interfered, for that (juestiou could bo de-
termined by the evidence of experts on the subject.
But to un<lcrtake to determine that she was satisfied
with it was a thing no one but herself could do. It
was a very unwise agrecMuent for the plaintilf to make,
but ho had only himself to blame for it.
C5
ACCEPTANCE JfUST BE IDENTICAL WITH
OFFER.
class
not
Mrs.
hus-
•aph,
was
JORDAN V. NORTOX.
[4 Meo. & \V. 155.]
Farmei- Norton wrot'> to Farmer Jordan, olTering to
buy a particular mare if the latter would warrant her
20
LKADIXU CASKS SIMrLIFIKD.
'K^oHwl ami qnii't in harnes.'^/' Ynvnivv JorLiu wmle
hack warrant iiiu- lit'i' ''■'^oiind and quiet in double har-
ness," l)iit savin^ii- he had never put her in sinr/Ie luiniess.
The mare was taken to Norton's hy an agent, who ex-
ceeded his authority (und whoso act was iniDiediately
repudiiitcd) and tlien — as the experienced reader will
have foreseen — tunned )• ' 'o 1)0 unsound. This Avas
Farmer Jordan's acta u ;;." price of the mare, and
the red (jueslion was waoLue; or not thero was a coni-
])lete contract. This ';ne>^tion was decided in the
neuative. " The corresi-ondv ce, ..id liaron PAifivK,
"amounts altogether merely to this: ihat the defend-
ant a<>-rees to give twentv auincas for the mare, if
there is a warranty of her hi-ing sound and (piiet in
harness jrenorallv, hut to that the plaintilf has not
assented. The parties have never contracted in writing
ad idem.'" It takestwo to make acontract, and those
two must have agreeing minds. That being so, an
olfer must be assented to in the precise terms in which
it is made.
ACCEPTANCE OF ALTERED PROPOSAL.
BORLAND V. GUFFEY.
[1 Grant's Cas. 394.]
The dramatis personiB of this caso arc four: (1)
Fullwood, an inn-keeper with more debts than lie can
FORMATIOX OF CONTRACT.
21
couveiiloiitly pay; (2) Borliiiul, u prospective piir-
cluisei' of Fiilhvood's imi ; (o) Giilley, a creditor of
Fiillwood's, and very anxious about liis debt ; (4) Wil-
liam Gudcy, his son. Act I., Scene 1. BorhimVs
ILmsc. — Enter William with a message froiu his
father, that if'Borhuid will not airi'ce to see him paid
ho will attach Fullwood's property at the inn. To
William, Borland replies that ho will see his father's
dol)t paid, provided hcAvill not take out an attachment
against Fullwood's property, and will llkeivise heep
quiet and let no jjcrson know anythimj about it. Scene
2. — William return.^ from his errand and relates what
Borland has said, (julley, Sr., replies that that is sat-
isfactory, but omits to send AVilliam back with a mes-
sage to Borland to that ellect. Nevertheless, he refrains
Trom attaching the pro[)erty. Act II. — The whole
scene is now in the Sui)renu! Court. Borland didn't
see him paid, and Gulley has sued him. But much to
his disgust he is told that there was no contract, for it
was essential that Borland should have been notitied
of his assent to the new terms in his proposal — the
I'.ttle matter concerning kec[)ing quiet. Exeunt onmes
to slow music, GufTey minus his money.
9
Q9
LEADING CASES SIMl'LIFIEl).
PROPOSAL TO rXAsCEPTAlKED PERSON.
WILLIA3IS V. CAKWAKDIXi:.
{\ Barn. & Adol. (ii'l; Lnn-td. Cas. on Con. 12.]
Williiun Ciirw.-irdiue caused a hjuid-billto bo printed
and distributed wliieh stated tliat whoever would give
.sueli iufonnatiou as would lead to the discovery of
the nuirdercr of his brother, AValter, should receive
twenlv pounds. Soon after this advertisement was
issued, Marv Ann Williams was l)adly beaten l)y a
man she was livinir with, and ])elieving she had not
\o\vs to live, and to ease her conscience, she iriive infor-
mation which led to the conviction of the man who
had beaten her for the murder of Walter Carwardine,
He was hanged, but she recovered and brought an ac-
tion for the twenty pounds. The jury found that other
motives than the olfer of the I'cward had in'duced her
to oive the information. Nevertheless, all the iudires
of the King's Bench ex[)ressed the opinion that she was
entitled to it. Dexmax C. J. : " The plaintiti' l)y hav-
injTj jfriven information Avliich led to the conviction of
the murderer of Walter Carwardine, has bron<>-ht her-
self within the terms of the advertisement, and there-
fore is entitled to recover." Littledale, J. " The
advertisement amounts to a general promise to give a
sum of money to any person who shall give information
which might lead to the discovery of the otfender.
The plaintiff gave that information." Pauke, J. :
" There was a contract with any i)er.son who performed
the condition mentioned in the advertisement." Pat-
Tisox, J : "I am of the same opinion. Wo cannot go
into the plaintiff's motives."
FOiaiATlOX OF CONTRACT.
23
MISTAKE AS TO PEh'SOX CONTRACTING.
BOSTOX ICE COMPAXY v. POTTER.
[IL'.T Mass. 28.]
During the early part of the suniiiier of 1878, the
Boston loo Coniiiiiny supplied Mr. Potter, of the Hub,
with ieo for his tea and claret , and for the household
generally. For some reason or other — perha[)s they
irave him short weight or too mueh straw and dirt —
he determined to try another ice man, and having heard
favorable rejjorts of the Citizens' Ico Company ho made
a contract with them. For about a year the wagons
of the Citizens' Company drove up daily to the door
of the Potter mansion, when one morning a wagon
of the Boston Company ap[)eared on the scene as of
old. From that day forward the Citizens' wajjons no
lonijer came that way, but ice vras reirularly delivered
to ]Mr. Potter's servants by the Boston Company. The
reason for this change was that the latter company had
bought out the former, ice wagons, horses, and every-
thing including the privilege of supplying ice to the
customers of the Citizens' Company. But of this ^Nlr.
Potter was sul)lim(!ly ignorant, and when at the end of
the season a bill was presented to him for ice, which had
been consumed in his house during several months,
and which had l)con supplied by the Boston Comi)any,
he refused to pay it. The company sued for the ac-
count, but were unsuccessful. Mr Potter, it was held,
had never expressed his assent to a contract for ice
with the Boston Company, and there was no implied
r5
21
LKADIXO CASKS SIMPLiriKD.
iissoiit on liis i):ir( iVoiii liis receiving iind using Iho loo,
xM'Miisc he had no knowU'dgo that it was fiirnish(>(l l)y
1
the phiinlill'; l>ut siii)p()sed that he was receiving it
from the C'ili/ens' Company. "A l):irty " said E\Di-
coTT, J., "has a right to select and detennino with
whom he will contract, and cannot have another person
thrust upon him withont his consent. It may bo of
im[)ortanee to him who performs the contract, as when
lie contracts with another to paint a pietnr(>, or write a
hook, or furnish articles of u particular kind, or when
ho relies upon the character or ([ualities of an individ-
ual, or has, a-
tliis case, reasons whv ho does not
wish to d'jal with a particular party. In all those cases,
as he may contract with whom he pleases, the snfH-
ciency of his reasons for so doing cannot be inquired
into. If the defendant before receiving tlu^ ieo or dur-
ing its delivery had received notice of the change, and
that the Citizens Company couhl no longer perform its
contract with him, "t would then have been his un-
doubted riliht to have rescinded the contract and to
decline to have it executed by the plaint ill', lint this
he was unal)le to do because the plaintilf failed to in-
form him of that which ho had a right to know. If
he had received notice and continued to take the ice as
delivered a contract would be implied. A case in
England " the judg(! added, " was very like this. Quo
Jones, who had been in the habit of d(?aling with Brockle-
hurst, a pipe-hose manufacturer, sent him an order for
fifty feet of leather hose. It happened that that very
day Brocklehurst had been l)ought out by Boulton, his
former foreman, who executed the order and sent the
goods to Jones, without irivini;- him notice that the <»-o()ds
were supi)lied by Boulton and not bv Brocklehurst.
FORMATION OK COXTKACT.
25
Tho Court of Kxc'licquor docldcd tliiit Boiiltoii could
r.ot niaiiitaiu uii uctioii agaliist Jouos for tliolr [)riec."^
MISTAKE AS TO SUBJECT MATTER.
KYI^E V. KAVAXAITGH.
[103 Mass. i55(!.]
]Mr. Ka'Io agreed lo sell, and ^Ir. Kavaiiaugh to buy,
a lot of land on Prospeot Street, in the town of AVal-
tliiun. Jsow, it happened rather oddly that there were
t^ro Pros[)eet Streets in Walt ham, and when Mr. Kav-
aiiatiuii was taken round by ^Ir. Kyle to inspect the land
he had bought, he found that it was on the other Pros-
pect Street, and was not the land he had been thinking
of at all. So ^Ir. Kavanauiih refused to take it, and
in this he was sustained by tho court, it beinu; held
that wliere one i)artv was neirotiatin<>: for one tiiine:
and the other selling anotlier and ditlerent thing, and
their minds did not agree as to the subject matter,
tlierc could l)e no contract by which either could be
l)ound ; and tliis would be so where there was no
fraud on either side — notliinii: more than a mistake.
)
s
' Boiiltun r. Jones, 2 Hurl. & N. r)(J4.
26
LEADING CASK8 ^IMIT.IKIKT).
HEruKSKS'i\ 1 TK >.v.s . ixn ]rAiiJUxriE,s.
jjEiiv \. ijri{M-:ss.
[1 Bestv<: S. H77; ;t Bi'st .<: S. 7.")1.]
Bv a c'li!vrl(>r-p!irly (hiU'd tlio liUli of Ocfohcr, ISOO,
tliu pliiiiiliir aiiTccd MS "owner of tlu> <i-oo(l hihip or
vessel oiilled the MnrlalMUi, of four liniKlrecl juid
twenty tons or tliercahouls, noir in lh<' port of Am-
sterdam,^' to proceed to Newport and there load
u car<j;o of coals, wliicli siie should carry to Hong
Kontjf. Unlbrtunately, the fjood ship, the ^Nlartahan,
was not just then '' in the port of Amsterdam," and
did not arriv(^ until the 23d. Wherefore, when she
reached New[)ort, the defendant refused to load a
carijo and repudiated the contract. The plaintilF then
brought an action, and the question was whether the
words " now in the })ort of Amsterdam " amounted to
a warranty, the breach of which entitled the plaintilF
to repudiate the conti'act, anil the court decided that
they did. " Properly speaking," said Williams, J.,
in giving judgment in the Exchequer Chamber, " a
representation is a statement or assertion made by one
party to the other l)efore or at the time of the con-
tract of some matter or circumstance relatinu: to it.
Though it is sometimes contained in the written in-
strument, it is not an integral part of the contract,
and consequently the contract is not broken, though
the rei)resentation proves to be untrue ; nor (with the
exception of the case of policies of insurance, at all
FORRIATION OV CONTRACT.
«7
ovoiit!=, niiirino policies, which stiiiid on !i pcculisir
anomalous footing)' i.s such uutruth Jiny Ciiuse of
action, nor has it any clticacy wh.*itov(M- unless ^'ic
icprcscntiition was inudo frau(hilcntly, t'ithcr by r^asou
of its hcinj^ niado with ii knowhMlLn; of ils untruth, or
l)V reason of its heinii; math) ilisiiouostlv, with ii reck-
less ignorance whethei- it was true or untrue. * * «
But with respect io statciiUMits in a contract descrip-
.* . . . . .
(ivc of the sul)ject-njattcr of it, or of sonu; material
incident thereof, tlu^ true doctrine, estahlished by
p:i!ci|)le well as authority, appears to b(% generally
spcakin; at if siu'h descri[)live statement was in-
tended to r>e a substantive part of the contract, it is to
bo regarde(l as a warranty ; that is to sa^', a condition
on the failure or iu)n-performanc(! of which the other
party may, if ho is so minded, repudiate the contract
hi fo(Oy and so bo relieved from performing his part of
it, provided it has not been partially exeouted in his
avor.
' Seo Carter v. Bouhm, post, p. lS(i.
I
28
LEADING CASES SIMPLIFIED.
IT. — C0XS1DERATI0X=
A CONSIDERATION NECESSARY TO SUPPORT
A CONTRACT.
I.AXX V. HUGHES.
[7 Tonii R(.p. ;!,"jO.]
^lorc than a hundred years airo Mr. Rami brought
an action against Isahelhi Hughes on ii promise whieh
she had made to him to pay him a sum a little less
than one thousand [xxinds, whieh he claimed to be due
from the estate of \vhi( h she was the administratrix.
The Court of King's Bench, the Court of Ex('he(|uer
Chamher, and finally the highest tribunal in England,
the House of Lords, wrestled with the case for a long
time, l)ut tlie u[)shot of it was that Mr. Rann was
informed that he could not recover, as he had not
shown any consideration, i.e., any benefit in mone}'' or
.'Miything else which the defendant had received for
making the promise. " It is undoubtedly true," said
Lord Chief Baron Skyxxer ''that every man is by the
law of nature bound to fulfil his enu:aijements. It is
e(|uallv true that the law of this country sui)plies rio
means, nor alfords any remedy, to compel the perforr,i-
unce of an asxreement made without sufficient cons'd-
CO:,'SIDE RATION
29
(■ration. Such agreement is nuduDi pricluiu e.cquo uon
on'fur actio," the Ltitiii he quoted being an ancient
maxim, which ])eing done into English reads: "No
cause of action arises from a ])are i)roniisc."
ADEQUACY OF COXSU >EHATIOX IMMATERIAL.
BAIXI$!{Il)(iE V. FIK3ISTOXE.
[8 Ad. & E. 7t:5; Laiiir.l. (":is. on Con. 20'.).]
Firmstone was worse tlian the man who would l)or-
row your nm])rella on a rainy day and then forget to
return it : for Firmstone would not only not return it,
but if you should remind hini of the circumstance
Avould tell you that if you wanted your umbndla you
would have to hire the sherilf to get it for you. For
this is exactly the way he served Bainbridge. The
latter owned two boilci's, and one day Firmstone came
to him and tohl him that he would like to l)oi-r()W
those boilers, and take them over to his place and put
them on his scales and see how much tliev weiu^hed.
Now, as Firmstone did not want to buy the I)oilcrs, or
to use thcin in any other way, this was rather an odd
request. But Firmstone promising to return them in
ffood order, Bainl)ridLrc, the accommodatiuii: neiirhbor
that h<' v/as, let him have them. Sad to relate he broke
,!,>
I
30
LKADINCf CASES Sl.MrLIFIED.
his ]iromis(\ iind when r>:iiii1)i'ulgo brought an iictioii
Luighod ill Ills slccvi', for lie had read enough la^v to
know that a contract without a consideration won't
hold, and what consideration is there in giving one an
oiiportuiiity to weigh boilers, argued he. But Lord
Dkxmax, C. J., thouirlit the suit was "well enouijh.
The defendant had some reason for wishing to weigh
the boilers, and he could do so onl}' bv obtaining per-
nnssion from tlu; plaintiif, v/hich he did obtain by
promising to return them in good condition. "We
need not inijuire what benetit he expected to derive.
The i)l!iintiir niiirht have i^iven or refused leave."
And Pattisox, J., thought so too. " I suppose the
defendant thought he h:id some l)ene(it," said he, '* jit
any rate there is a detriment to the plaintift' from his
parting with the possession for even so short a time."
So that merelv "allowing tcj weiirh " is a sufficient
consideration for a promise.
BUT CONSIDERATION MUST BE REAL.
AVIIITE V. liT.I^ETT.
[L'3 L. J. (Exch.) 3(5.]
A son had been constantly complaining to his father
that he did not givi; him ;is much inonev or the
same advantages that he gave the rest of tlie familv.
CONSIDKHATION.
31
FiiKillv", one day, ho proposed a treaty of peace. " If
vou woii't ask mo to pay that note of mine, I won't
l)()ther you about these thuigs any more," said the
son. "All right," re[)liod the father, who, some time
after, died, Avithout destroying it or giving it up.
When the executors came in, they found the note
among his papers, and brought an action on it against
the son, who pleaded his father's promise, without
avail. " Is an agreement," cried Baron Parke, with
astonishment, " is an airreement bv a father, in con-
sidcration that his son will not bore him, a binding
contract? Fudge!" His lawyers tried to convince
theother judges that it was, but with the same success.
" If such a plea as this could be supported," said
Chief Baron Pollock, " the followini!; would be a
binding promise : A man might complain that another
person used the public highway more than he ought
to do ; and that other might sa}', ' Do not complain,
and I will give you five pounds.' It is ridiculous to
supi)ose that such promises could be binding. So,
if the holder of a bill of exchange were suiniji; the
aocc[)tor, and the a('ce[)t()r were to c()m[)lain that the
holder had treated him badly, or that the bill ought
never to have been circulated, and the holder were to
say, ' Now, if you will not make any more com[)laints
I will not sue you,' such a promise vrould bo like that
now set up. In reality there was no consideration
whatever. The son had no right to com[)lain, for the
father might make what distribution of his property
he liked, and the son's abstaining from doing what he
had no right to da, can be no consideration."
CO
:?3
It-:
32
LEADING CASES SIMPLIFIED.
FORBEAUAXCE TO SUE A SVFFICIEXT
COXSIDERAriOX.
HOCIvi:XBUUY V. 3IEY'EUS.
[:U X. J. (L.) 340.]
Mrs. Movers hold Joliii Ilockoiiljiirv's note for $1 ,000
wliicli was ovordiie .'ind un[):iid, and she thrciitoned. to
sue liiin unless Ik^ could lind soeuiity. lie, therefore,
Avrote to his hrothor Asa, Iclliui;' hiui the fix ho was in,
and to pacifv the lady, Asa, who doubtless was a man
of suhstanoe, i)ut his naui(> on the l)ack of the not(>.
Two 3'cars more passed williout Mrs. Meyers seeing her
money and then sJic lost all paticuice and. did .sue.
" You can't ii'et anvthiiiu' out of me," i-hiickled Asa,
*' because my promise; was voluntary and without con-
sideration."' But tile court gave jndj:nient against him
on the ground that forbearance to sue was enouirh to
support a contract.
PROVIDED THERE IS A LE(fAL CAUSE OF
ACTIOX.
PALFREY V. I'ORTLAXI), ETC., R. CO.
[4 Alien, .">.]
One of the glories of the common law was to ciony an
action for damages occasioned bv the death of a hu-
CONSIDERATION.
33
niMii ])eiiio\ A very dis{igreoal)lc personage, thiit
figures in the Isiw reports with grout fVe(|uency,is tlic
modern corponition, which, recognizing its laclc of
a body to bo kiclicd or a sou^ to bo damned, gen-
erally manaires to crawl out of its oblii>;ationS and
evade its liabilities l)y the help of very technical and
unriuhteous defenses, rjtween these two Mrs. PmI-
iVey came to grief, as was not stran<>e. Her husband
had been killed on a train belonging to the Port-
land, Saeo and Portsmouth Railroad Company, un-
der circumstances of the most atrocious ne<>li<j:ence
on the })art of the comi)any. Its officers agreed to
nav her tiitv dollars a month durin<>' her life if she
would not sue them. They carried out their agreement
lor four years, and then having discovered that there
was no statute in Massachusetts or ^Nlaine allowing an
action aixainst a railroad for kiilini:' its passenircrs or its
em[)l()V(H's, thev told her to go the — work-house, for
slie had seen the last doUai of //k ir money. When
she sued them on their promise, they rc[)lied that it
was without consideration and void, and the court was
ohlige(l to givi! judgment in their favor, because, for-
bearance to sue is a good consideration, only where
there is a Icfjal cause of action,
•A
s
3 3
34
LEADING CASES Si:\IPLIFIED.
PROMISE TO DO WHAT PARTY IS BOUND TO
DO INSUFFICIENT.
REYXOLDS v. NUGEXT.
[25 Iiul. 328.]
There is nothing to show thiit Mr. Reynolds, of In-
diana, ever distinguished himself in the lute war,
though !it one time liis services were certainly at a })re-
mium. The township of Tohin offered him a hundred-
dolhir bounty if he would be one to till their <|uota of
the draft; he accepted, signed tlie roll, and pocketed
the money. But on his way with Nugent, the recruit-
ing officer, to be mustered in, an agent from Evans-
ville came along, offering $350 l)ounty for recruits.
♦' If you want to keep me," said Reynolds, Avhen he
heard this, "you have got to come up to I^vansville's
offer." " "We will do it," said Nugent. Reynolds
was satisfied, and went to the war. In 18(15 he turns
up again in a suit for the $250, which Nugent had not
yet paid him. Hard to relate, this patriotic veteran
was told by the court that there was no contract, bo-
cause there wns no consideration, A promise to do
what a person is bound to do by law is not, they said,
a good consideration for another promise. If Rev-
nolds had been a witness, sul)[)(iMiaed to give his evi-
dence in a lawsuit, and bad refused to go unless he
was paid extra, ^ or if he had been a sailor who had
agreed for a certain sum to work a certain voyage, and
' Collins V. Godefroy, 1 Barn. & Adol. iHi).
T
COXSIDKRATION.
35
■when half Avay through, he had refused to reef a sail
until the captahi promised him more pay,^ iu neither of
those cases could he have brought an action, for he
would have only promised to do what it was already
Ills loiral dutv to do. And that was iust what was the
matter here. Nugent had promised him the $250 to do
what he was already bound to do by his contract, and
this was not a legal consideration for a contract.
C3
CUIWBER V. AVAXE.
[1 Stra. 42(); 1 Smith Ltl. Cas. -139.]
AVane owed Cumber some $75, and wondered how
he should pay it. In a genial moment Cumber rejoiced
his debtor's heart by telling him that if he paid $21) it
would do. Wane thanked him, sat down quickly and
wrote out his promissory note for that amount. But
after a while Cumber repented of his generosity, and
went to law for the whole amount. Wane pleaded
that the plainlilf had agreed to accept $25 in full satis-
faction of the debt of $75, and that he had paid the $25.
This, though [)erfectly true, was not considered a satis-
factory plea, and the unfortunate Wane was compelled
to pay the remaining $50. The reason was that as
Cumber wsis entitled to the $25 all the time, there was
no consideration for his promise to relinquish the resi-
>,
^"*:;!
I
' Stilk y. Myrick, 2 Camp. 317.
3(1
LEADING CASES SIMPLIFIED.
(Inc. Sonic philosophoi- luis said that it is easy to be
wise after the tact. So thought Wane, as he rellectcd,
that if he had only said to ranil)er, " I'll give you iny
note for $2."), and a pipefnl of tol)acco," or " I'll pay
vou $2.') on account, and give you my old pocket-knife
in satisfaction of the l)alance," there would have been
a irood contract with a good consideration.
sa
MORAL OBLi:;ATn)y JXSUFFIOIEXT.
COOK V. HIIADLEI^.
[7 Conn. 57; IS Am. Dec. 7".t.]
Cook pero was poor ; Cookji/s was rich. The fathei-
must have been very poor indeed, for he was obliged
to «ot his necessarv'food and clothing from liradlevon
credit. The son, hearini^ that ho alreadv owed liradlcv
$()0, which he could never pay, wrote to Bradley, tell-
ing him that he considered the debt one that he (the
son) was under an obligation to pay. By and by
Cook Jils died, and Bradley endeavored to collect the
anionnt from his estate. But he found this a very
difficult matter. The court into which he brou<rht the
letter suggested first that it would l)e necessary for
him to show some consideration for the promise.
" The goods I supplied the old man with were neces-
CONSIDKKATION.
87
REAU3IOXT V. REEVE.
Ml'
Siiries, uiid (ho son was loj^ully obligated to [rdy tliom."
" Not so," iiiiswcivcl the court ; "a son is not bound
by law to pay past oxpoiiditurcs of lii.s parents."
"At any rate," replied Bradley, " he was under a
moral obligation to su[)port his father." " Right you
are," returned the court ; " but that will not help you,
lor we cannot find a case *in the ])ooks in which it has
been lu'ld that a moral o])ligati()n is a sufficient con-
sideration for an express promise. In fact there are a
iXood many to the contrary, and we must *x\\'g iudij-
mcnt against you," which they immediately proceeded
to do.
•'3 II
[S li. IJ. 483.]
Henry Reeve seduced Caroline Beaumont. They
lived togiUher for about tivo years, when they resolved
to separate. In consideration of the cohabitation,
Reeve [)romised to [)ay her an annuity of £(50 a year.
But the seducer was also a liar, and this was an
action for arrears. It was held, however, that there
was no legal consideration for Reeve's promise, and
the womafi must do without the annuity.
The student must clearly understand that it was not
because the contract was illef/al that it was held to be
void, — there was no illegality about it, — but simply
because; there was not what the law counts a coiuidc ra-
tion for Mr. R(!eve's promise ; so that if the contract
H ■
88
LEADINC CASKS SIMPLIFIED.
hiid been under sosil (where eonsiderations iiro unnoccs-
Siirv) it would luive l)eeu binding on him. If, liow-
evvv,fu/urc and not ^jr/.s-/ cohabitation were the con-
sideration, such a consideration wouM be WegaU nnd
would vitiate oven the contract under seal.
i
PAST CONSIDERATION.
BULKLEV V. LANDOX.
[2 Conn. 404.]
Bulklcy, Sonieryndike & Co, l)rought an action
n'l^ainst the representatives of the firm of Smith, Tav-
lor & Co., of New York. In their declaration they
allcfred that the defendants, in consideration that the
plaintills wonhl indorse a note signed by Ji third pei-
son, promised that they, the d(>fendants, would hold
themselves liable in the same manner as though they
had signed it with their names. The })romise, which
was in writing, when brought into court hardly l)ore
out their statement, for it was in these words : —
New York, August 27, 1814.
Mesi^rs. Bulldei/, Somfryndike (C Co. —
Gextlemen : In consideration of your Jiav'uig iu-
dor.^ed the undermentioned notes drawn by David Tay-
lor in your favor, we hereby hold ourselves accountal^lo
to you for them iu the same manner as though said
notes were drawn l)y us.
SiMirii, Taylou & Co.
COXSI DERATION.
89
ThoUirli tlui docisloii was lUiuld by tlio court on a
qiic'stion ot' i)lciuliug — which by tho Wiiy is the
mode ill wliich most of tho nilinixs on this point oc-
curred — ii very ini[;ortiiiit princi[)lo in th(> hiw of con-
fsideration for contracts was announced, thouixh not for
the first time, by any means. This princi[)le is that
a promise founded on a pa.sf consideration is not
binding; and tliough the piaintin's liad tried to make
a uood case bv savinii; " irou/d ind;>rs(!," the writinfj
itself, wliicli was the only evick'nce of tlie aUeged eon-
tract, said liaviiuj indorsed, — a mcn^ dilfereneo in
tenses, to bo sure, l)ut enough to put tlie plaintifls out
of court.
LA3U»I^EIGH V. BUATHWAIT.
[Hob 105, 1 Smith'H Ld. Cas. 222.J
Thomas Brathwait sUnv Patrick Mahuine. But
kings wei'e kings then, and the murderer was for-
tunate enough to have a friend at court. To this friend,
tlien, he resorted in his need, and begged him, in tho
name of all that was charitable, to go to the king, and
intercede for his life. Touched by tho appeal, this
friend, — Lanii)leigh was his name, — consented to see
what could l)c done, and " did by all the means ho
could and many days' labor do his endeavor to ()])tain
the king's pardon for tlu^ said felony, viz., in riding
and journeving at his own charires from London to
Rovston, wiien the king was there, and to London
I
40
LEADI\(f CASKS SIMI'MFIKD.
flr!f
luick, ainl so to and iVoiii Xcwiiiarkot to ()l»t;iiii pardon
for (lie (Icfoiulaiit for the said fidoiiy." After Lamp-
Iciiih had taken ail the joiiriieys, iiiul been put to all
this lroiil)le, liralhwait, as some sh'^-ht recognition of
liis services, i)roinise<l to ji:ivo him £li)!>. But t!io
storm l)U'\v over; Brathwait cheated the hang-man;
and now i)r<)|)osed to cheat Lan)pK'';rh, too. In answer
to Lanipieigh's gentle reminder of thi* promise to give
him £100, r)i-;ith\vait reidied vety learnedly that no
promise is hindinir unless it is founde 1 on a sutlieient
consideration, and that what Lam[)leiuh had done w;is
a mere vohiiUari/ courffs//^ quite insufHcient to support
jipromise. " No,"' said Lam[)leigii, with much somider
learninu', as the event proved, " it was not :i meri* vol-
untary courtesy. Yau asked me to do it, and that
iisking saved it from beini; a mere voluntary courtesy,
and made it a sntHcient consideration to l"ound a sul>-
secjuent promise on." The conrt thought so, too.
Services rendered in tlu^ [)ast , however eminent, are
not generally a sutlieient consideration to snpi)ort a
promise. But a i)ast consideration will snppoi-t a
promise, when it consists of services rendcu'cd by the
plaintiff at the defendant's reijuest. As this was
exactly Lampleigh's case, he got his £100.
Yet before he got it, he had to overcome another
objection, -which the urigratefid Brathwait interposed.
"It doth not ap[)ear," siid l^i'athwait, " that he <lid
anything towards the obtaining of the pardon but rid-
ing n|) an<I down and nothing when became there."
But the court said that did not matter, fen- labor,
though unsuccessful, may form a valuable considera-
tion.
PAIITIKS.
41
III. — l*AirJIKS.
('OXTliACTS OF IXFAXTS VOIDABLE A XI) VOW.
FKTHOW V. WISEMAN.
[10 liiil. M.s; KwL'll on Dis. of Inf. 22.] ,
Siiimu'l "Wisoinau (his nets certainly beru'd liis name)
took a promissory note, payable to himself, from
,Iose[)h Fetrow, Avilh Joseph's sou John as snrety.
John was at the time an infant — i.e., not 3'et twenty-
one years of a<xe. This was his first foolish i)roeee(l-
ini:-. Bi'ini^ nnable to make the amonnt ont of the old
Ilia 'is next move was to sno the youngster, but
when John api)eare(l in court he pleaded the " bab}'
a>'l." 'he court decided in the infant's favor, and the
jilaintilf went home a juuch wiser man. "The contracts
(•fan infant," said the court, " areof three kinds : void,
valid and voidable. An aorcement which he makes,
which is illegal Dccauso aijainst a statute or a rule of
public j)()licy. or a contract which he has no power to
make at all, as appointing an agent or attorney in fact,
is absolutc^ly vi d., A contract for necessaries, on the
other hand, is as binding on the infant as if he were
an adult. All other contracts made by an infant are
I
42
LEADINO CASKS SIMPLirKD.
voi(l:il)li' only, :iii<l when he eonies of age l>c may ratify
them ami become li:il)le on them. This contract of
suretv.^hip was of the hitter kind. John might disatfirm
or ratilV it at his option, and as he had taken the
former course, he couhl not be made lial)le npon it."
EXCEPT FOR XECESSARIES.
PETERS V. FLE3IIXG.
[d Meo. & W. \-l\ Ewoll on Dis. of luf. ijC.]
Mr. Fh!mini»; was one of those fast collegians whoso
efforts have contributed so liberally towards the set-
tlement of the law of " necessaries " for infants.
Durini; his career at the Universitv of Cambridii:e, and
while under a<ro, he became indebted to a i(>wcller in
the town for several articles of oi-namen*: ^'hich were
supplied to him on tick. Fleming, ^;e/'o who was a
wealthy nunnbcr of Parlimcnt, and could easily hare
paid it if he hid liked, wouldn't look at the liill when
it was sent in ; if he had, this is what he would iiavo
seen : —
£ s. d.
A fine gold ring 1 <S
A ring, engraved crest, ct(^ . . . . LS
A short gold watch chain 2 2
A pair of pins l.S
A ring 1 <)
A ring 1 .^
A ring repaired, xww stone .... 3 H
8 (5
PARTIES.
43
So tlie cloiilcr brought an action against tlie young
man himself Avhen he l)ecanie of age, and (the judge
luivinur loft it to the iurv to say whether the arti-
ck'S were "necessaries" or not, and they having
Ibnnd thtit they were,) he got his money. But
]\Ir. Fleming was not satisfied ; ho desired the opinion
of the Court of Exchequer on this interesting point.
He soon got it, and found it no more satisfactory than
tliat of the jury, for the court agreed in every respect
with the verdict.
" The true rule," said Paukk, B., " T take to be this,
that all such articles as nm pnreJ// ornamental are not
necessary and are to be rejected, because they cannot be
rc(|uisito for an3'one ; and for such matters, therefore,
an infant cannot be made responsible. But, if they
are not strictly of this discri[)tion, then the question
arises, whether thcv were boui^ht for the necessary use
of the party in order to support Jihnself 2Jroperl>/ in the
degree, slate and station of life in which he movt'd; if
they were, for such articles the infant may be respon-
sil)lo."
HUNT V. PEAKE.
I
[5 Cow. 475; 15 Am. Dec. 475.]
A half a (UMitury ago, in the State of New York,
young Alexander IVake told pretty Polly Hunt that
ho would marry her. But ho didn't do it, and so she
sued him in an action for broach of promise of mar
riage. " AVas Alexander twenty-one years old when
44
LKADIXG CASKS Sl.MI'LIFIKI).
he said lie would inarrv you?" asked the court, and
Pollv Avas ol)li;:('d 1o admit that lie was not. Tlien the
kind-hearted judire, with a savaire name, had to tell her
that he was sorry for her, but Ihc law could not help
her. For in the time? when Georiie II. was kinij of"
England ther(> 'was a youui:: lady of tifteen, who Avas
told l>v the owner of the name (w'.io was over twentA'-
one) that slu; should he Mrs. Ward ClartMicieux.^
But he Avas a ^ay deceiver, and married some one else,
and slie sent him a noh^ hy the sherilF that she con-
sidei'cd it Avorth £!,(»( 10 to miss havin<j: such a prettA'
name. The iurv tliou'iht it was Avorth half that sinn,
at least, and then ]\Ii'. Claroncieux retained the best
lawvers England had at th:t time, Avho made a fine
argument in Westminster Hall, Avhicli lasted several
days, trying to convince the Judges that he ought not to
bo obliged to i)ay the money. But it Avas no use. The
judges said that an infant's promise Avas not binding,
except for necessaries, and a Avife, notwithstanding St,
Paul, Avas not a " necessity,*' But if a [lersoii of t'ull
age and an infant agreed to marry each other, tin; for-
mer Avould l)e bound while the latter would not.
Therefore, this young lady of tifteeu could bring an
action a<:ai!ist Mr, Clarencieux, who had reached his
majoi'ity.
" But, therefore," concluded Savage, C.J,, ♦' l*olly
could not sue Alexander."
' Holt 0. Chireucioux, l' Stra, 'Ml.
as
f^
Jkm
TAliTlKS.
45
IIUSBAXJ) J YD WIFE.
MAMiY V. SCOTT.
[1 Sid. lo'.i; 'J Siiiitirs I>(1. ('as. 1(17.]
Sir E(l\v:ir<l Seott, :i rospoctable baronet of the
scvontoenth eentiiiy, was not fortunate in his choice of a
Avife. The hulv was fast, and the uenth'nian was slow ;
and they failed to hit it olf topfetlier. Prol)ably,
therefore, it was to the no small relief and .satisfaction
of the worthy baronet vdien Dame Scott, as th(; re-
porters call her ladyship, determined to seek fresh
Avoods ami pastures new, and went riuht away. The
irood easy man had not enjoyed such iieacc since the
days of his bachelorhood. Twelve years passed away,
and one day, at the stately home of Kniiland inhabited
by Sir Edward Scott, then; turned u[) an exceediuiily
seedy h)okinL>; female, who announced herself as Lady
Scott, and the mistress of all slu; surve\» I Her riijfhts,
howeyer, were very soon dis[)Uti'd. Tlu' baronet was
a sensible pcM'son, and his pam[)er(Ml menials soon sent
th(! old woman about her business.
This action was brought by a merchant who, although
Sir Edward had ex[)r(>ssly told him not to do so, had
supplii'd Tiady Scott with silks and satins dui'inu' the
time she was livinir away from her husband. The
reader will scarcely be sur[)rised to hear that Mr.
Manby did not obtain a satisfactoi'y settlement of his
little bill, and Mduhij v. Scott is the chief authority
for the prineii)le that the wife's contract does not bind
the husband unless she act by his authority.
CO
•l
4(5 li:ai)I.\(; casks {^implifikd.
3IOXT A<;r V. 1$ENK1>TCT.
[;{ Burn, .t Cri'ss. (.;il ; i' Smith's Ld. Ciis. 427.]
Mr. Beiiodicl, (tlu' iiaiiu", as stiKloiits of Shakespeare
will have siinnised, is a laiun^oiie) was a hanl-worUiiig
lawyer who lived in a furnished house which he rented,
and which wa.s ])y no means elc<2;ant in its a[)i)()inL-
incnts. Indeed, he did not keep a man-servant, and
these two facts were of importani'(! when he came to he
sued 1)}' Mr. Montaixn, jeweller, who had sold Mrs.
Benedict several hundrt'(l dollars worth of expensive
jewelry without his knov/ledge. In an action by the
jeweller auainst tlu; husband it was unanimously iield
that the goods were not necessaries, and he could not be
eom[)clled to pay lor them. M(»)if(nju v. liinwdlct
lays down thi; law of hushaml and wife this far: If a
man without any just cause, turns away his wife, he
is bound by anv contract she maki's for necessaries
suitable to Ihm* })osition and estate, and it is tlu; same
if they live together and he docs not snp[)ly her with
necessaries. Whi'u he himself provides ln'r with ne-
cessaries, he is not liabhi on her contracts unh'ss he
assents to tluMu, but his assent may be either express
or implied. But the goods must be necessaries, and
in this case they were dearly not, for Mrs. Benedict
would have been in a better business if she had laid out
the money for new furniture f(u- tlu; house instead of
useless ornaments which would so ill corrosiK)nd with
the old.
P\RTILS.
47
SEATOX V. BENEDICT.
[5 Bing. 28; 2 Smith's LU. Gas. 432.]
^Ir. and Mrs. Bcnodict reappoiir on the boards.
After the little affair of the jewelry, tliej left the city
and Avent to live in the couiitr3\ But even in the se-
clusion of the peaceful hamlet where they settled Mrs.
Benedict pursued her extravagant wavs. She became
indebted to a local store-keeper for gloves, ribbons,
muslins, laces, and silk stockings, and tinally the mer-
chant sued the husl)and. The goods supplied were
un(|uestional)ly necessaries, but then ]\Ir. Benedict had
always duly furnished his wife with necessary apparel
and knew nothing of her clandestine dealiuiis with
Seaton ; and on this ground the plaintiff was disap-
pointed in his expectations of getting i)aid. " It may
bo hard." said Best,C. .!., " on a fashionable milliner
that she is precluded from supplying a lady witliont
previous in(|uiry into her authority. The court, how-
ever, camiot enter into these little delicacies, Init must
lav down a law that shall protect the husband from
the extravaixance of his wife."
:?3
1)EIJENHA>I V. 3IELLOX.
[6 App. ('as. 24.]
A prudent man was Mr. Mellon. He gave his wife
an allowance of $2(50 a year for dresses and pin-money,
48
I,KAIH.\(f CASKS SIMl'Ml-IKI).
and iilso iiiioniuMi her tli.it he was not ii'oini;' to pay
for iiiiv (Irv ii'oods or inilliiun y she iniuht choose to
])U\ on credit — slie must _ii"i't aloiii; on what she had.
In spile of this distinct i)rohihilion, Mrs. MeMou
ravorc(l a certain store-keeper, omi Dehenhani, with
snhstaiiti.d orders lor dresses, etc., and ho, by and by,
i'avore(l Mr. Mi'Uon witli a substantial Cliristiuas bill.
This Ml-. M(dlon absolutely declined to have an^'thinij^
to do with, and litipition ensued. The' store-kee[)er
had not known that Mr. Mellon had expresslv forl)id(len
his wife to incur surre[)titious del)ts, and the u^oods ho
had supi)lied were what the law calls " necessaries," so
he felt eontident of success. The judges, howovei', di'-
cidcda<rain<t hini, and thus "carried to its logical results
the princi[)le that the wife's authority to bind lu'r hus-
bjind is !i nieri' (piestion of agency." ' Then the stori'-
kecper (aich'd by his brother dry-goods dealers, and
shooniakors, and jewellers, who were much ahinnod at
this anuonncenient ot the law) went to tlu; great ex-
pense of employing very eminent counsel, and taking
the case to till! House of Lords, lint that tribunal,
the higliesl in Kngland, was of ihc s;imt' (»i)iiiiou as
the judges below. "The fact," said Lord IIlack-
iJiii-N, "of a man living with his wife always allbrds
evidence that ho intrusts her with .such authorities as
are ordinarily given to a wifi>. In the ordinary ease
of tiie manag(Mnent of a household, the wW'o is tin;
manager, ami, with such tradesmen as a butcher or a
baker, she would have authoritv to nledirc! her bus-
band's credit ; but even then I do not think the pre-
sum[)ti()n would arise, if the husband gave her the
' Jolly r. IJc't's, 1,-) ('. IJ. (\. s.) C.L'S.
PAUTIF.S.
49
means to procui'o the articles without erodit. Tii llio
pi'eseiit c'as(^, however, yoiii* h)rdships have to ih'ter-
r.iiiie
whether the wile had a mandate to order eh)the:
I am of opinion that there is noth-
which it would he pro[)er for hov in her stiition of life
lo have, although the hn.sl)and had forbidden her to
lijediio his credit, and had iriven her monev to hnv
clothes * *
iiig to authorize our holdinii" that the wife had author-
ity to pledire her husband's ci'edit. I au"ree that if lie
knew that she iiad ijfot credit, and had allowed the
tradesmen to suppose* that he sanctioned the transac-
tions with them, it miirht well be aiireed that there
was such evidence of authority, that he could not
i-evoke it without uiviniT notice of the revocation to
all who had actc'd u[)on tlu; faith of his sanction. The
iicnci-al rule would be that which I have stated ; but
where an au'cnt is clothed with an authoritv which is
afterwards revoked, those who have dealt wi
th h
mi
have a riuht to say, uidess the revocation has been
made known to them, that the princii)al is i)recluded
from denyinixthe continuance of that authority, in the
continuance of which he has indnce(l them, as reason-
able; persons, to believe. There have been nniny cases
where a husband has sanctioned his credit being
thus pledgeil by his wife ; but there is no such ease
licre. I cannot agi'ee that the cases have (>stablished
that the fact of a wife; living with her husband alone
entitles tradesmen to [)resum(! that the iiusband has
giveji an authority which In; is precluded tVom after-
wards denying. I think that in such a case it is open
to the husband to i)ro>'e, if he can, that such an au-
thority does not, in fact, exist, that being a (piestion
c5
for tl
le jury
This is not the case of the withdrawal of
50
LKADINO CASKS SIMl'LIFIED,
nil authorily whic-h lius lun-n oiico givcMi ; but the ques-
tion is, wlu'thcM- the appellants, who had never before
dealt with either the wife or the husband, were entitled
t') assume that the authority was iiui)lied from the
mere fact of cohabitation, and I do not think that the
law srave them any riirht to do so."
CONTRACTS OF LUNATICS.
3IITCHELT^ V. KING3IAN.
[5 Pick. t;U ; Ewell on Dis. of Inf. 5L'2.]
Kingman Avas sued on a promissory note. *' I ad«
mit he made the note/' said his counsel, when the ease
came to trial, " but if your honor will allow, I will
show that at the time he sionod it, and ever since, he
has been an idiot, perfectly incajjable of understanding
what he was doing, and 1 think that, under these cir-
cumstances, he ought not to be bound." Then up
rose Mr. Mitchell's lawver. "It seems to me," he
replied, in a very confident tone, " that I have read
in Blackstonc that it is a maxim of the conunon hiw
that no man of full age can be allowed by his own
i)lea to stultifv himself, and thereby avoid liis own
deed or contract ; and, if I am not mistaken, Lord
Coke makes a remark of a similar character." " You
PAUTIES.
51
arc riglit," said tlio Jiidgo, " wc cumiot listen to such
ji plea. Judirnient for the plaiiitill'." But on ii[)pejil
the Supreme Court of Massachusetts reversed the
ease, sayiii<j^ that, thouLjh true it was that Blaekstono
and Coke had so written, yet a more enlightened
j)oliey had established a better rule, and the law of
England now was, and of America had always been,
that a lunatic or insane person might avoid his con-
tracts 1)y showing that he was insane at the time they
were made.
^5
BAXTER V. PORTS3IOUTH.
[7 Dow. & lly. (iU; 2 Car. & P. 178; 5 lUrn. & Cress. 170; Ewell
on Dis. of Inf. O.'Ji.'.]
On various occasions between 1818 and 1823 the
Earl of Portsmouth hired carriages and horses from
the plainlilf, Mr. lia.xter, or Bagster (there seems to he
some dilferenco as to what his real name was, but this
is unimportant), and thereby incurred the bill for which
this action was brought. It was proved that the plain-
tiff had no reason to sujjpose the Earl to be of unsound
mind ; and that the carriages, etc., were constantly
used by him, and were suitable to his rank and station.
This being so, the plaintiff's claim was not defeated
by its having been found, in 1823, by a commission that
the Earl "then was, and from the 1st of January,
1801>, coiitinnally had been of unsound mind, not suf-
ficient for the government of himself." Imposition or
fraud, as a rule, said the court, were ijrounds for
Mi
52
r.KADlNfi (.\Si;S SIMI'MIII'.I).
v:u';irm.!^' .'ill coiitrMi-ts, niiil willi icspcM-l to a person of
unsound niiii<l. if it can 1»<' proved that lie has Ix-cn
(lefrande.l, or an un(hie advaiitaii-e (aken of Ills im-
heeilitv. a court will not enforce his eontraets. Hut
where there is no inipo>ition praetise(], and the u'oods
snp|)lied are siiitaltle to his {■oudilion and decree,
then the mere fact that he is of unsound mind and in-
c'apal)le of makinjj: his own contracts will not deprive a
pei'sou who has uiven him credit for such goods from
suinu" in a court of law for their value.
KI{<)M V. S('II<)()\>IAKElf.
|;l Harli. (;17; Kwcll on \)\>. nf Inf. (i;;s.J
A crazy fellow in Rochester, \ew Vork, who was all
the luoro dangerous foi- the reason that he was a jus-
tice of the i)eaee, was [)()s<c^scd with tlie idea that Mr.
Krom had l)een committing wholesale forgei'y,aud so,
one line morning, he thought it his duty to issm; a
■warrant lor Krom's arrest , wherefore the latter was
obliged to spend a whole day in the custody of a con-
stable. When he got out it was not long before there
was an uetion for false; iinpiisounicnt i)endiug in the
courts against ^Nlr. Justice of the Peae(>, whose friends
seeing the (ix lie was in, inter[ osci] the defenst; that ho
was Insane at the time he issii.d a warrant. I'ut the
' This case properly he'loiiixs fiirtlicr on in tlic book, l)ut is
placed here for couveuieuue.
PARTI KS.
53
" iiisiuiity thxlgo " liiul no show i;i this ciisn. A limti-
tic, tho court sjiid, cannot he ixniishcd tor crime, hut,
;ill th(! same, lie may he sue(l i'oi- an injury donii to
another. An idiot or otiier insane pei'son is not a iVeo
:iirent, cai)al)le of inteUii^enl voluntary action, and,
therefore, he cannot have any ijfuiJty intent, wliich is
the Teiy cssenc(! of ci'ime. But a civil action to re-
cover damaires tor an injury m;iy he maintained M^iainst
him, hecau^e in such a cas(! the intent with which the
act is done is not material. It must be home in mind,
however, that the measure of damaires will generally
l)e less in the case of a lunatic than when; a sane man
is sueil for an injury, for th(5 amount of damaires is
<renerallv increased hy a malicious motive in eausin<r
the injury.
;"5
COXTUACTS OF COItPORATlONS.
1$AXK OF (JOLirMIJIA V. PATTERSON.
17 Craucli, '_".''.'.]
'I'luM-ei was an old doi'trin(>, that lingered in the courts
for many years, to the elfcct that a cor[)oration could
make no contract excei)t hy its corporate seal, the
reason iiiven heing, as ex[)ressed hy an old-time judire
that they were? " invisible, immortal, and had no
souls," and, therefore, were iucai)able of manifesting
I
54
LKADIMi CASKS SIMI'LIKIKI).
their intention by iHiy pciNonal (if or.il discourse.
Corpor.'itioiis h:i(l ii urlorions time of it on tlu^ strength
ofthi^ : thev in;i<le all sorts of eontraets with all sorts
of i)eis()ns, hy the word of mouth or the simple siixna-
turo of one of their otTictMs or air<'nts ; they looked on
and saw' the work l)eiiii!: done for them, or the things
delivered, and then when pay-day eame aronnil, they
absolutely deelined to l'oi-k over, and sueeessfully sh(d-
tored themsi-lves held 1 1 t!ie pitiful (h-fenro that the
contracts of corporations are not l)indi.ig unless mado
under their eorporalo seal. It is tliis sort of tiling
which has earned them the title of "bloated," and
which has at the same time rendered tluMii rath(>r un-
popular whenever they have been forced to come witii
their disputes before a jury. Hut it is a long lane
which has no turning, and tli(5 wjiole fabric of c;)r[)or-
fite exemption and privilege received a terril)lo shcxdc
in the celebrated case which stands at the head of this
})aragraph.
The facts of the case were very simple. Mr. Pat-
terson was a l)uilder ; the; Hank of Columbia wanted a
new buildiui!;. A committee of the stockholders and
Patterson made a contract, and he went on and put u[)
the building. But when he asked for payment for his
Avork, the Bank (thougii it had received the consider-
ation), made a grand ellbrt to keep the building, and
at the same time not pay for it, by saying : "We never
put our seal to the contract, and, therefore, you cannot
hold us." But tliis sort of morals did not suit the
Su[)reme Court of the United States, which court,
though admitting that such was the law ancientlv, pro-
ceeded ])y the hand of Mr. Justice Stouy to demolishit
for all time. "The technical doctrine" said that
jm
mm
PAirriKS.
65
Icnnu'd jiul^c, " tlial ii corporation could not contract
except under its seal, or in other words, could not
inaivc a promise, must have been product iv(! of <^reat
niiscliiels. Indeed, as soon as tiuj doclrinj; was estab-
lisl'.ed that its rcL^darly ap[)ointe(l a>xeiit could contract
Ml their minu! without seal, it was impossihle to su[)-
port it ; lor otheiwise, the party who truste<l such con-
ti-act would 1)0 without remedy a^iainst the corporation.
Accordinuh', it would seem to l>e a sound rido of law,
that wherever a corporation is actini^ within the scope
of th(^ le;jfitimate purposes of its institution, all j)arol
contracts made by its authorized aijonts arc express
promises of tln^ corporation ; and all duties im[)osed
on them by law, and all benetits conferred at their
re(pi(\st, raise implied promises for the euforccmciit of
fj
i i
w
hid
I an action mav well lie
f*s
5(j
LEADING fA8i:S 8i PLIFIKD.
IV. — TiiK Statute of Frauds.
[The iiidcpciKleiiL layman who I'luK'avors to iiuiki' Lis (•onlnicts
without llrst con:-iiltiii';- liis lawyer, will fr;ii'.U'iitly rc;;rc't th:it Iig
hail not been tlrst instructed in tiu; provisions of tl-o' Statute of
Frauds, l/fifx i>^'> in tlio reii;u of that incrry ruler, Charles II., a
few of t!ie fatlu-rsof the law in tlie Eniilisli Parliament — Lord Halo
amoiiij; tlieiii — passed a statute wiiich was entitled "An Act for pre-
vention of Frauds and rerjurycs." Most laws endeavor to put a
stop to the practices wiiicli tin y are designed to preveni, by assess-
Inj; penalties and punisluncnts ui>onlln; refractory individuals, wlio
forLTet or refuse to keep tlieni. Not so this law, v.Iiicli had for its
ul)ject tlie rcniovin-j; of some of tlie temptations to fraud and per-
jury, by prevent inii men, in the case of a larute number of agree-
nienls, from swearin'j; tliai they had or had not beea entered into,
unless tlie'-e was so;:!f writinij: on tlie subject. Where one; man
said tiial anotlier liad i«romis(d to do a certain thin;,', by word of
mouth, and tlie oilier denied il, it is obvious liiat even if o:ie of
them was not lyinu;, such testimony was very tnicertain and iinsati' -
factory for a jv.tlire to have to decide upon, an<l so that this kind of
sweariu!;; should be discouraired, tliis learned I'arli-inient i)assed the
celebrate,! Statute of Frauds — an enactment which is in force in
Gre.it !»ritain to this day, and whose provisions have l)een copied into
the statute l)ooks of almost all, if not all, tlic Spates of the Union.
The original act has sixteen sections, th.e fonrlii and sixteenth
beiuii" by far the ic.ost important. They read thus (the preamble
in the quaiiii ICuirlishof the time) ; " F(n'i)revcntion of many fraudu-
lent Practices which are commonly endeavored to be upheld by
Perjury and Subornation of Poriary U 'c it enacted that noe
Action shall he 1)roui;lit " : —
Sr.cT. t. On any promise l)y imi executor or adminis.rator to
ansv.cr dama'tes out of his own escate.
On any promise to answer for the debt, default, or miscarriaiie of
another person.
On any aitreement made in consideration of marriage.
TIIK STATUTK OF FIJAUDS.
a?
(!ii Miiy contracf orsalo of huids, tenements, or lieredUaincnts, or
any iiitiTcst ill or coiicerniiii; them.
(»ij any iiiireement not to be performed within a year from its
iiiMkiiii/
Unless the a^n-ement or some note or memorandum thereof sliall
!)(• in writin;;, sijined l)y the person to be eliarxed or Ills uijent.
Section Hi enacts that no contract for tiie sale of any j^oods,
wares, or merchandise for the price of £10 or more, shall be ;;ood
iiidcss the bnyer: —
(1.) Accepts ))art of the goods so sold, and actually receives the
same ;
(2.; Or ;iives somethim^ in earnest to bind the bargain, or in
l)art payment ; or
(;V) Some note or memorandnm in writiii'^, of the barfjain, is
ma<lo and sic -ed by the party to be charijed, or his a'j;i'nt.
As was to bti ex|)e(;ted, the courts were soon ealhil n|)on tointer-
prc the different provisions of this statute. In fact liiey have
]<('pt at it for two hun<lred years, and are by no me:ins through yet.
Indeed, one may say that they have just jiot a good start.
Tiie most imjiortant of tlie "leadinu: cases" on these important
statutory provisions, are the following ones: — 1
PUOMTSE TO ANSWER FOR 'DEll'I. DEFAULT,
OR MISrARRfAOF" OF ANOTHER.
B1L1K3IYR V. DAIlXET^r..
[Sulk. L'7; 1 Smith's Ld. {'as. ;571.]
Liuhtlimror WMiitcd somebody to lend liiiii ti horso ;
but wlio would lend Liirhi tiiijicr ;i lioi'se? IIo w:is so
suspicious u c'imi'actef that cvofybo'dy lie ii[)pliod to
rcinarkcd that lu; was very sorry, but that Just iit present
ho was not in tlu; livery business. At last \\o ofot the.
wesdv side! of one Darnell, who had no horses himseH", but
knew some persons who h;id. To one of theso persons.
58
LEA1)IN(J CASKS MMPI.I FIKD.
t
iiiinh'<l liii-kmyr, I);inicll wmt, aiul, with niiiiiy oxpros-
sions of coulidiMicc, undertook to 1)0 ros[)on.sil)I<> for
LiiilitliiiiTcr's biTiiriiiir saffly hark any horse tlmt Birk-
tiivr inii^ht nitni>t him witii. On the faifli of (his
uiKh'rtakiiiL^ — a V('rl)al one of coiirso — Birkmyr lot
Liuhtliiiu'or havi^ out' of tlio best horses in his stable,
and that uentlenian rode away; and, as there were
neither raih-oads nor teh'irra])hs nor poJi'o in 1700,
ncilhci' '■<! nor the horse was ever heard '■" aij^ain.
Tliis heinL'' the state of the ixanic '." rkniyr played
the only card that was left him : he sn<'(l Darnell.
This eard, iiowtjver, did not [)rove the trnm[) he antici-
pated. He iound to his eost that he onght. to have
taken Darnell's promise in writini";. The Statute of
Frauds, as we have seen, says that a '• promise to
juiswer for the debt, default, or misearriuije ol' another
person " must be In irrifiiiff. Darnell had [)romised
that if LiuhtliuL'er did not bring back the horse,
fVnkmyr niiuhl look to him. This was preeis(dy the
kind of promises that the statute referre<l to — a proniis(>
\vlier(! some one else is primarilv liable. If John
Smith takes his friend .lonivs to his tailor, and says,
"Make this iientlemun a pair of trousers, <ni(l if he
(Jncsii't pin/ i/nn, I iri///' Joni's remains primai-iiy
liable, and Smith cannot l)e sued ;is surety uidess his
l)romise was juit in writing. But if Smith should say
lothe tailor, " .Make this gentleman a pai.-of ti'ousors,
nvd f in'/i j)fti/ >/oii/' no writing would l)e required to
in:die Smith liable.
'"^yWfwn??ieaPW?Bwrrr«;v«Tr — ^-^--^ ■
TIIK STATUTK OF FK'AUDS.
59
PROMISE '^IX COXSIDERATIOX OF MARRIAGE:'
SHORT V. STOTTS.
[:)8 lud., L'!).]
Siimiu'l Slut. I i)r()inis('(l to iii.-utv Muuiriti Stott^;,
and wlu'ii I. \ out back on his word, MaLrsiio sued
liiin. ' Bi-oiii>iit into court, Mr. Samuel, knowini' that
his pre 'lise-; had always been by word of mouth, set
Ml) the J.jt( nco that Mao'iri*^ eould not hold him on
1 C7v_-
his aurccmont until she had i)r( lured some writini;
of his to that cfFect, relviiiuf on the Statute of Frauds
to help him out of the scrajje. Rut here he di<l not
succeed, as tiie court ruled that the statute applied
onlv to ai::reements " in consideration of marriaue,"
and not to Uirreements to marrv.
''IXTEREST IX OR COXCERXIXG LAXDS.
CROSIJY V. VV^VnSWORTH.
[t; East, no:;.]
Farmer '^Vadsworth, of Claypojo, In Lincolnshire,
had a tield of liUely-looking' gra.s , which Crosby, with
an eye to hay, desired to purchuse. Meeting casually
i
CO
I,K \!>I\<! CASKS snil'I.IlMKI).
one il.iv ill .Iiiiic, it \v;is jiuTood hi'tweeii tlieiii that
Croshv should have tlu; <rra->s for twenty .irniiH^-^, only
he was to iiavc the t roiil)l(' of mowing «ii<l making it
iiilo IiMV. On this undrrstanding thtiy so[)arat('d.
l>iit, two or tln-rc weeks al'ierwai'ds, ^Vadswortli again
happened to nieet('rosl)y, and remarked plea.saiitly :
"P.vlheway, I"ve thcided not to let yon have that
•'rass ot mine; I don't tliink \'onr liiiiire is u'ood
enouuh:"' and the same day h(! sohl it to a Mr.
Carver lor twenty-live i^uineas, thns cK'aring a iive-
ponnd note hy iiis diph)maey. .Mr. Crosby sned
Wadsworth lor his brc'aeh of contiaet, bnl, unfortu-
nately, took nothing by that, as it was held that tlu^
eontraet was oiu' whieli had to do willi the land, and
thendort! should have been in writing, as re(juired
ly the fourth seetion of the Statute of Frauds. " I
think," said Lord KLLKXHOUoiiiii, "the agreement
stated, conferring, as it professes to do, an excdusivo
right to th(! vesture ol" the land during a limited time
and for given purposes, is a contract or sale id' an
interest in, (»r at least an interest eoneerninu' lands."
Cell
--idl
verl
wa.-l
in
llidl
I'.-tl
COXTRACTS " XOT TO IlK I'EHFOIiMKD WITIIIX
A YEAH."
TETEIt V. (;<>.>ii»roN.
[Skill. :!:»:;: 1 Siiiitli's i.d. ('as. !:!•_'.]
Those who knew him best did not consider Mr.
Peter a marryiiiii- man. Theret'ore, it was that Mr.
THE STATUTE OF FKAUDS.
01
('(»mi)U)ii tliouulit li(! had uot defidcdiy on iho riijfht
sido of tho Imrgaiii wlu'ii, oiio eviMiiii;:, in casual con-
viM-salioii across' till! walnuts and wiiic, this ai^rt'cmcnt
was coino to: Peter to pay Cwiinilon a, ijiiiiica down,
in consideration that ('onipton would pay Peter a
thousand guineas on his (Peter's) Widdi'ig day.
Peter promptly paid down the uninea, and CoiU[)ton
poci<eted it with a grin. I^eter giinned, loo.
The next act opens with Peter's wedding day, two
years being su[)p<)sed to have elapsed. I>i"illiant
dresf'cs, lovely I)ridesniaids, rosettes, church bells, and
indigestible cake. But one is conspicuous bv his
al)sence. T\\o. reader can giu'ss who. \\'1umi Mr.
P(,'ter led .Mrs. Peter away from the hymeneal altar,
he sat down and wroti* an e.\trenicly I'riendly little note
to ( 'ompton, reminding him ot' that pleasant evening
tliey spent together two yi'ars ago, and recpicsting the
tavor of a check I'or amount due, as [)or agreement
Complon was considerably taken altack ; but, like a
sensil)le man, went sti'aiglit to his lawyer. That gen-
tleman told him to set his mind at rest ; tor, said
he, in a ceilain slat nt e, enaclcil of wise men long ago,
it was provided that an -'agrei'ment that is not to be?
performed within the spac(! of one year from tho
making thereof" slionld bi' in writing. ".Vnd how,"
asked the man of law, complacently sti'oking his chin,
"can they nnike out that this agreement was to Ix;
pertbrmiMl within tiie year, when this sly dog l\'ter
doesn't get married t'll two years aft(U'wai'ds V (Jo
home, my dear sir, and don't trouble yourself any
more al)out it ."
Unfortunately for C^ompton, this i-ather plausible
view of tln! law was not adoptetl by th(! juilges. who
''I
% •
(32
LEAUINO CASES SIMl'LiriED.
oiinu' to the ooncliisioii that the chiuso in the Stiitutc
of Fniiuls rclerri'd only to :igrocMnc>nts which, in their
terms, wcvQ<ihsoIi((d>/ incapahle of pvrforniance v^ithia
(Jic i/i'ar, and nMinired tha^ snch agreements only slionhl
lie in writing. Now, tliis agreement between Peter
am! Compton was rU^arly not " incapahh^ of perform-
ance " within the year, for Peter might have got mar-
ried the very next day. So that it was binding, thongh
not in writiiiiT.
1
uicil
'■'71
the
see }
mei
CONS IDE IIATIOX mrST BE EXPRESSED.
WAIX V. WARLTEBS.
[5 East., 10; 2 Smitirs Ld. Cas. 280.]
For Mr. Warhers the Statute of Frauds was decid-
edly a fortnnate enactment. He had a friend named
Hall, who becaint' indebted to Messrs. Wain &, Co. to
the extent of £'>(), and with no [)articnlar m(>ans of
payment. To extricates this lri<'nd from his dilficulties
Warltei-s sat down and wrote out the following colbit-
onil secmity :
" Mkssus. Wain and (\). : I will engjige to pay you
by half-past four this day £")(! and exi)en.se.s on bill that
amount on Hall.
" [Signed] fbjXATHA.v Waultehs.
" No. 2, Cornhill, April ;}(), 1S();;."
TUK STATUTK OF FIJAUDS.
()3
TLill, of nourso, did not piiy the money. So Wain
cii ('■). sued Warlters on his liiianmtoe. lint the docn-
iin'iit was hckl to bo so inneh waste [)ai)er, as no ron-
xidevation for Warlters' j^romisp to pa;/ the i'oO was
t.rj)rpsspd in it. The Statnte of Frauds re(jnires that
tiie •' agreement" sh ill <>e in wi'iting, and as we have
seen, the considpration is as much a [)art of the " agree-
ment " as XXw promise.
PROMISE TO ANSWER FOR DEBT, ETC., OF
'-ANOTHER.''
I
I
EASTWOOn V. KENYON.
[11 Ad. v*;- K. \\^s.^
John Sntclille, h.'ginning to feel that he was not the
man he used to he, thought it was ahout time to make
his Avili, aiid turn hi.-< attention to another and a hotter
world. He left everything he had in the way of real
j)ro[)erty to his only daughter, and named bis friend
Eastwood cxecutoi-. But John Sutelitle was not des-
tined to tlie just yet ; and "mansions in the skie.s "
weix* not the only estates to which he was busied in
makiuir his title clear. Before ho died ho had sold all
th«> lands mentioned in his will, and bouirht other
lands. Of those he made no will whatever, and when
(51
LKADINU CASKS SIMl'LIl'lKD.
I
^H
he diod. as lie did soon al'lcrwartls, ihcy dt'si't'iided to
h\< child as heiress at law. Tiiis young hidy, at the
time ol" her lather's death, was underage, and East-
wood, ou the strength ol'the now useless will (in those
(lavs a will did not speak I'roui the time of the testator's
death), and the faet that he was an old and di'ar friend
of her father's, took on himself to aet as her guardian.
lint Hast\s-ood, with all his good intentions, was a jjoor
man : and, lor the purpose of managing Miss Sutelilli''s
all'airs, he found it necessary to hoi'i'ow money. lie
l)oi'ro\v(Ml £I 10 from a person naint'd Rlaekhurn, and
gave him his promissory note for the amoinit. By
and hy Miss Sutclille did what all young heiresses,
sooner or later, must do — she got married ; the for-
tunate individual heing a Mr. Kenyon. Recognizing
his claims to his gratitude, Kenyon promised Eastwood
verhally that he wouhl pay Hlackhnrn tlu! £l in. jini
.somehow or other, when th(>time came, small as the
sum was, Kenyon conhl not l)ring himself to pai't
with the money; and linally this action had to he
brought on his promise.
Kenyon did not deny tiiat he had made the promise.
But he raised two ohjeclions to the plaintilf's claim :
(1.) That his promise was (me " to answer for the
debt, def lull, or miscarriage of another pei'son,"' and
therefore (l)y tlu^ Statute of Fi-aiids), shonld have
been in writing.
This |)oint was overruled, for the Judges said that
the words in the stalntt^ contemplated tlu^ promise
being made to the creditor, and had no reference when
the promise was made, as here, to the di'btor himsidf ;
it was a i)romise to answer for the debt of '" another"
which was reipiiretl to be in writin<>'.
isd
m
en
THE STATUTE OF riJAl'DS.
65
Beaton from this position, Keiiyon retreated to
another.
(2.) That there was no eoiisltleration for liis prom-
ise.
And tliis point was deeided in his favor, for a mere
nior.i.! eonsich'ration, as we liavo seen, is not strong
enongh to snpport a promise.
So Eastwood was £140 ont of pocket by his executor-
ship.
' ' GOODS, \V. 1 Ii'ES . I .\7> MERCIIAXDISE. ' '
TISnAI.K V. HAHRIS.
[•-'0 rick. ;i.]
Th(i phiintiir sned the (U'feiuhmt on a verbal con-
tract hy wiiicii th(! lalt(>r airreecl to sell him two liun-
(h'cd shares of stock owned by iiim in the ColHns
Mannl'actnriiig C()mi)any. The (h'fenchmt had never
delivered the stock, and hence this suit, in which ho
made the (K'fence that it was a contract for tiio sale
of " goods, wart's and merchandise," and not l)eing
in writing he could not b(> bound. The [)laintilf vigor-
ously op[)()S(>d this view of the case, but the court hold
it was a correct one. " The court are of opinion,"
said Chief Justice Shaw, " that as well by its terms as
by its general i)()licy, stocks are fairly within its oper-
lie
LKADINC CASKS SI.MPLI riFJ).
iition. Thr words 'i^oods' jiiul » iiu-ivluimliso ' nrc
hotli of very liirjro sijxiiiticjition. /ion't as incd in llio
civil l:i\\' is almost as cxh'iisivc as personal i)ro[Mn-ty
itself, and in many resix-ds it has nearly as lar<j:e a
siirnitieation in the common law. The word ' merchan-
dise,' also includini;' in p'ueral ohjects of traiHe and
commerce, is hroad enonj;h to include stocks or shares
in ini'orporated companies."
Th
rnl
///
c//r
W(
GOODS XOr IX KXISTEXCE.
lA'li: V. (iltlFl I\,
[1 Host .!i S. l'Tl'.]
Old Mrs, Pearson ordered two sets of artitieial te(>th
of Mr. Lee, a dentist. The latti-r mad(> them, hut on
the day before she was to call at tin; otlice to have
them fitted the old lady died, and as her executor was
already supplied by nature with an elllcient array ol'
grinders, the dentist was forci'd to sue for his hill,
which amounted to $105. The executor set up the
defence, that it was a contract tor the sale of " goods,
wares or mei-chandise," and shoidd, therefore, have
been in writing, as reqinred by the Statute of Frauds,
while the dentist contended that, on the contrary, it was
work, labor, and materials for which he was suin<>\
THE STATITK OF lUAl DS.
67
^=^
The oxcoutor's view wiis luloijtcd by tho court, llio
luU^ hi'iiig stated to ho that, if the contract he such
llnit ir/ioi mi't'ied out it inoiihl rcsn/f in f/te sttlc of a
rhdHcl^ it is a sale of goods, and not a contract for
work and hihoi-.
VALUE or (iOODS.
3
BAT^1>EV V. IWIJKEIl.
[L' IJarn. i!i C'russ. ;17.]
Mr. Parker lias not paid an exorbitant pi'ico for fame,
lie went one day into a sho[) and hargained for a
nun»l)crof trifling articles, a separate i)rico being agreed
on for each, and no one article bi'ini:; l)rice(l so hiijli as
£10. The articles tlmt Mr. Parker had decided to
l)ny he marked with a i)encil, or assisted in cutting
iVoni a larger bulk. 'I'hen he went home — he always
did — to tea, desirinij; that an aeconnt of the whole
shonld be sent after him. This was done, and the
sum Parki'r was asked to pay was £70, iulinis live pel'
cent discoinit I'or ready mont'V. Tliis disi'oiuit he
(jnarrelled with, not considering it liberal enough, and
when tho ijfoods were sent to him he refused to accept
them.
This was an action by tho store-keeper against his
recalcitrant customer, and the main ([uestion was
•'V.
e>.
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IMAGE EVALUATION
TEST TARGET (MT-3)
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Photographic
Sciences
Corporation
23 WEST MAIN STREET
WEBSTER, N.Y. 14580
(7)6) 872-4503
4^
:*
MP,
.<$>
68
LEADIXCr CASES SIMPLIFIED.
whether the eontnict \v:is one " for the sale of goods,
wares, or inereh!in(li.ses for the priec of £10" within
the 17th seetlon of the Statute of Frauds, the honest
store-keeper raying that it wasn't, and the other gen-
tleman saviiiij: that it was. The question was deeided
in the affirmative', the contract having l)een an entire
one, and " '^ being the intention of that statute," as
HoLKOYO, J -aid, "• that where the contract, eltJicv
at the cowmev-: :'i''-]if or at tJie conclusion, amounted to
or exceeded lii' va'ue of £10, it should not hind unless
the requisite? there mentioned were complied with.
The danger," lie added, " of false testimony is quite
as "i-reat where the bargain is ultimatelv of the value of
£10 as if it had been oriuinallv of that amount."
ACCEPTAXCE AXD RECEIPT.
EL3IOKE V. STOXE.
[1 Tiuin. -458.]
Elmore was a livery-stabie kee|)er, and had a couple
of horses for sale, for which he wai.t:.' £200. Stone
admired the horses, but not the price. Finding, liow-
ever, he could not get them for less, he sent word \u\
would take the h()rs(-s, " tmt, as he had neither ser-
vant nor stal)ie, Mr. Elmore must keep them at livery for
THE STATUTE OF FRAUDS.
()9
I
him." In consequence of this message, Ehnore re-
moved the horses from hissale-stiil)le into another stable,
whii'li he calh'd liis livery stable. In an action which
he brought for the price, the (juestion was whether
such removal was a sufficient constructive delivery to
take the case out of the Statute of Frauds, and it was
held that it was, as Elmore from that time held the
horses, not as owner, but as any other liverj-stable
kee{)er miuht have done. Said Lord ]\1axsfieli), who
delivered the jiulgment in this case: "There are
many cases of constructive delivery. A common case
is that of goods at :i wharf or in a warehouse, wherci the
usual pi-aetice is that the key of the warehouse is de-
livered or a note is aivcn addressed to the whartinger,
who, in consc(|uence, makes a new entry of the go'ids
in the nanu^ of the vendee \ although no transfer of the
local situation, or actual possessiou, takes place. Thus
in thi^ [)rescnt case, after the defendant had said that
the horses must stand at livery, and the piaintitf had
acce[)ted the order, it made no diflerence whether they
stood at livery at the vendor's stable, or whether they
had been taken away and put in some other stable.
The plaintilf possessed them from that time, not as
the owner of the horses, but as any other livery-stable
keeper might have them to keep."
» * J1
m
70
LKADIXO CASKS SIMPLIFIED.
SHIXDLEK V. IIOUSTOX.
[1 Dcnio, -18; 1 X. Y. L'Cl.]
IIoiislou owiumI ;i lot of lumUer which Wiis piled on
!i (lock iij);irt from other liiiul)cr there, iiiul had been
pi-eviously measured and inspected. Shindler wanted
to l)nv some lumber, and this particular lot being in
view of both, Shindler olTered a certain i)rico per foot
for it, wliicli Houston accepted, sayini>', "The lumber
is yours." Shindler then told Houston to get the in-
spector's bill and take it to his agent and he would i)ay
for it. II(^ did so, but paynuMit was refused. Hous-
ton then brouglit an action Ibr the price, but was un-
successful, the court holding that there had been no
sutficient "acceptance and recei[)t" of the goods to
satisfy the statute. It was not denied that there* might
be Ji constructive acce[)tance of goods as in J'JJdiovc v.
Stone, but the court tliought tliat in this case what
was relied on as cviilencc of acceptance and rei'ei[)t
was notliing bui the acts and declarations of the [)ar-
ties during the course of tlu^ sal(\ There; were no
such subse(juent acts, as constituted the open recogni-
tion of an existing contract ; nothing in short to show
that Houston considered that the lumber was no longer
his property.
THE STATUTE OF FRAUDS.
COXTRACT roXTAIXED IN SEVERAL DOCU-
MENTS.
Ih*
BOYDELL V. l>RU3I3IOXD.
> '^1
m
[U East, Ul'.]
Towards the end of the lust century Boydell &, Co.,
.1 grciit publishing tirni In London, determined, with a
view to the encouragement of literature and their own
remuneration, to bring out a series of engravings of
scenes in Shakspeare's plays ; and so they issued a
prospectus and began vigoronsly canvassing for sub-
scribers. Tiiere were to be seventv-two enijravinirs
altogetluM', four of wliich were to constitute a lunnber,
and at l(>ast one number ^\as to be pul)lished every
year. " The [)roprietors, however, were; confident
that they should be able to product? tM'o numbers in
the course of ev<'ry year." The [)rice of each number
was tliree guineas. The student, wliosoy?>r/e is arith-
metic, will thus perceive that the whole series would
not hv completed for niue years, and that the total
cost woidd be r)4 guineas. Amongst <)ther enthusias-
tic, if not vci-y ap[)reciative, admirers of the grtvit bard
Avas a ]Mr. Drummond. He agreed to Ixu'ome a sub-
scril)er, and signed his name in a book bearing the
title, " Shaks[)eare Snl)scril)ers, their Signatures."
He even put his admiration of he dramatist to the
still sever test of accepting and actually i)aying for one
or two of the numbers. P)Ut his interest soon beiran
to languish, and at last it became necessary to sue
72
LEADIXCr CASES SIMrLiriED.
him lor not aocoplinir the nMUiiiiKlor of the onirravinn^s.
In defence, ^M". Dnunuiond availed himself of the
Statute of Frauds, lie said that the agreement he
liad entered into w:is one which, by its tcnns, wiis iii-
ciipidde of performance within a year from the making-,
and, therefore, to l)ind him, should have been writing.
The publishers replied to this : —
1. That, :\rr. Drummond having taken and paid for
several numbers, there was a sufHcient " performance! "
to satisfy the statute, if not Mr. Drummonc' con-
science.
2. Thai, after all, the agreement ioas in writing,
for the book in v.liich Mr. Drummond had signe<l his
name, coupled with the publishers' prospectus, consti-
tuted a sutficient memorandum of agreement.
It was held, however, — scarcely to the execution of
justice and the maintenance of truth : —
1. That part ]ierformance would not do, for the
word ^'' per for) nance' ^ could iu)t mean anything less
than comphtwn.
2. That there being no means of connecting the
Shakspeare sul)scribers' book with the pi'os[)ectus,
without oral evidence — i^o reference being made by
the one to the other — they did not together consti-
tute a sutficient: memorandum.
"If," said Le Br.AXf', »1., "there had bc^en anything
in that book which had referred to the particular pros-
l^ectus, that would have been sutficient ; if the title to
the book had been the same Avith that of the prospec-
tus, it might, }ierha[)s, have done : but as the signa-
ture now stands without reference of any sort to the
prospectus, there was nothing to prevent tlu! plaintiff
from substituting any prospectus, and saying that it
TUn STATUTE OF FRAUDS.
73
was the prospectus exliibitcd in his sliop at the time to
which the signature rehited ; the ease, therefore, falls
directly within this branch of the Statute of Frauds."'
F ) Boydell beat the publishers, and lived happily
to the end of his days ; and his case remains the
leading authoiity for the pi inciple that, though a con-
tract may be collected from several documents, those
documents must bo so connected in sense that oral
evidence is unnecessurv to show their connection — in
other words, they must be left to 3i)eak for them-
selves. It should also be remembered by the student,
a> an illustration of tin clause in the fourth section
of the Statute of Frauds, which says that an agree-
ment not to be perfoiined within a year must ])e in
writiuii'.'
"**(
"^'3
..a
' Soe ante, p. ('>0.
'1.,.
^ ^«
N.
■
74
LKADING CASKS SIMPLI'^'IED.
y. — AVefttfa' Coxteacts axd Oeal
EVIDEXCE.
OJiAL EVIDEXCE XOT ADMISSIBLE.
GOSS V. NUGENT.
[,-) Barn. .<:. Adol. 58.]
Lord Nupfont uirrocd to buy of ]\Ii'. Goss .sevoriii lots
of land for £4y(), Jiiid paid a (lo[)osit of £>!(), i\Ir. (toss
undortakiiiu: to make a ffood title to all \\\o. lots. This
aiiTcemciit was, as the Statute of Frauds requires it to
be, in n'ritin<x. Soon afterwards Mr. (toss i'ound that
as to one of the lots he eould not make a ffood title ;
and of course Lord Nuuent would then have been
perfectly justified in eryinij; otf the barirain. Instead
of doing so, he airreed orally to waive the necessity
of airood title bein_n' made as to that lot. Afterwards,
however, his lordship seems to have altered his oi)inion
as to the desirability of becomiuij: the owner of the
land, and he declined to pay the remainder of the
purchase-money, relyinp; on the objection to the title.
In answer to that, j\Ir. Goss wished to prove that after
Lord Nugent knew about the defect of the title he
agreed to waive it. This, however, was not allowed.
WKITTKX CONTRACTS AXD OIIAL EVIDENCE.
75
So Lonl Xiiii'cMit I'ocovcrod his deposit, iiud got the
hclter of Mr. Goss. " By tho general rules of the
eoininoii law," said Denman, C. J., " if there he ii eoii-
traet wliieh has been rodiieed into writing, verbal
evidenee is not allowed to be given of what passed
between the parties, either before the written instru-
ment was made, or during the time it was in a state
of preparation, so as to atld to, or subtract from, or in
anv manner to vary or qualify the written contract ; but
after the agreement has been reduced into writing, it
is competent to the parties, at any time before breach
of it, by a new contract not in writing, either aUo-
i>"ether to waive, dissolve, or annul the former agree-
ments, or in any manner to add to, or subtract from,
or vary or (]ualify the terms of it, and thus to make a
new contract, which is to be proved partly by the
written agreement and partly by the subsequent verbal
terms engrafted u[)on what will be thus left of tho
written agreement. And if the present contract was
not subject to the control of any act of Parliament,
we think that it would have been competent for the
parties by word of mouth to dis[)ense with requiring
a good title to be made to the lot in question, and that
the action might be maintained. * * * I3i,t ^vo
thiidc the object of the Statute of Frauds was to
exclude all oral evidence as to contracts for the sale
of lands, and that anv contract which is sought to ])e
enforced must I)e proved by writing only."
1
70
LKADIN'U CASKS SIMl'MFIED.
PY3I V. CA3iriJEl^I^.
[i; Ki. .^ HI. ;:70.]
The clcfciulimts jiiri'ood to hiiytVom.Ioliii Pyin uthroc-
oiirlith part of the beiicrits to iUHTiio from an inven-
tion of his. It AViis aixreetl that tiiis piin;hase was
only to be made if an en_ij:ineer named Abernetiiie
approved of the invention. Tiicy then made a written
memorim(him of the airreement, withont pnttinij down
the condition abont ^Ir. Abernetliie's ap[)roval. Mr.
Abernethie did )io(. api)r<)ve ; and the (pu^stion was,
whether the condition couM be proved by oral evi-
dence. In ijiving jiidirnieiit that the evidence was
admissil)k', Erlk, C. J.', said: "The point made is
that this is a written airreement, absolnte on the facie
of it, and that evidence was admitted to show it was
conditional ; and, if that had beiai so, it wonld have
been wronir. Bnt I am of o[)inion that tiie evidence
showed that in fact there was never any airreement at
all. * * * Xhc distinction in i)()int of law is that
evidence to vary the terms of an airreement in writinir
is not admissible, bnt evidence to .skoiv that there is not
an agreement at all is admifiniblc.'"
WRITTKN CONTRACTS AND OUAL EVIDENCE.
LATENT AMDiaUITY MAY BE EXPLAIXEJ).
SARGENT V. ADAMS.
[:$ Gray, 72. ]
The defendiint entered into !i written agreement to
lease to the phiintiir the "Adams House," in Boston,
for a term of ten years. The defendant bad fitted up
an old hostelry called the Laml) Tavern, as a hotel,
and had christened it the "Adams House." The en-
trance to the hotel was on Washiniiton Street, and was
numbered 371. The rest of the liround floor of the
buikling was fitted up for stores, which were numbered
1, 2, o, 4, and i) Adams House. When the time came
for the defendant to [)rcsent the plaintiff with the biase,
the latter discovered that it did not include all these
stores, but only one of them. He, therefore, refused
to accept it, and ])r()ught an action to recover back a
sum of money Avhich be had advanced to the defendant
under the agreement. It would, doubtless, have been
hard for the defendant to have shown that he had
complied with his agreement had the Supreme Court
not allowed him to prove by parol that the agreement
originally was that the lease should include oidy the
hotel proper and one of the stores. " The court are
of opinion, " said the distinguished Chief Justice
Shaw, " that this constituted a case of latnit aml)ig-
uity, as that is understood and explained in this
department of the law. * * * \^ i\\\\^ under that
7.S
LICADINO CASK8 SIMTLIFIKD.
class of rjiscs where the very ^'cMicral description
adopted ill !i ('oiitniet will npply to two distinct .sul)-
ject.s, and so there is si latent and)ii:uily."'
BUT NOT " PATENT AMBiarTTY
! .
f
ASPl-KN'S ESTATE.
[1' Wall. jr. :i(;8.]
Mr. Mathias Aspden, a wealthy and eccentric Amer-
ican, died without issue, in London, in the year 1S24.
There were plenty of relatives to take care of his
money, and as they could not agree on the division, a
costlv and lenirthv liti<ration was the result. iNIatters
were somewhat complicated hy the fact that ^Ir. Asp-
den left a will in which he devised his estate without
further description to his " heir-at-law." Every one
of several nephews thought he exactly filled tlie l)ill,
and one of them was particularly anxious to let the
court hear evidence that his uncle always treated him
the hest, and thought more of him than of the others,
in fact, considered him as his heir-at-law. But the
court held that there Avas no latent aml)iguity to ex-
plain here; if it was anj'thing it was a p((tent ambig-
uity and parol evidence was not admissihlo to explain
that kind. " The difficulty i)resented in this will,"
■WIUTTEN C'ONTUACTS AND (»I!AL KVIDKNCK.
7<J
s!ii(l Mr. Jiistiff GiiiKit, " is not oiu; arising uijon ii
latent !inibi<i"uil y, as wiicre a testator I)t'(iuoathcs his
estate to his ne[)hew, Joini Smith, and has two or more
nephews of tiiat name. On the contrary, the t(5stator
has described a certain pi'rson, or a certain chi.-. of
persons, as tlio ol»jeets of his hoinity ; the description
given cannot e(|nally apply to two or more."
4
■X ■
L H
i;»5 III
SUI'I'LEMEXTARY (JOXTRACT MA Y BE SHOWN.
^ 'i^
3IALPAS V. LONDON «X. SOL'THWESTEUN K. CO.
[L. K. 1 ('. P. ly.w.]
A cattle-dealer wanteil to send some cattle from
Guildford to I>lingt()n. They told him at Guildford
Station th:it the beasts would be duly forwarded to
Kinir's Cross ; but they inveiiiied him into siii'ninji' a
consiijfnment note by which the cattle were directed to
be taken to tlu^ Nine Hlms Station, whit;h was not so
far as the cattle-dealer cx^jccted them to go. At this
intermediate station they remained and suffered injury
from not being f(!d properly, etc. The company's
point was that the consignment note was conclusive
evidence of the terms of the contract, and,' therefore,
that they had never undertaken to carry further than
the Nine Elms Station. But for the cattle-dealer it
80
LEADING CASES SIMPLIFIED.
was successfully contondcd that the consignment note
did not constitute ji complete contract, and that parol
evidence could be uiveu of the conversation that had
taken place between the plaintiff and the company's
servants before the consignment note was signed.
In rogni'd to the company's argument that the writ-
ten contract was conclusive evidence that tlu> cattle
were to be carried to Nine Elms and no farther, Eijlk
C. J., said : " I think that it is not so, because it seems
clear on the evidence that there may have been a con-
tract to carry to Nine Elms, and an additional contract
to carry the cattle on from then(;e to King's Cross.
The parol evidence, therefore, docs not vary or contra-
dict the written document, but only makes an addition
to it."
USAGES OF TRADE MAI' BE SHOWN.
COOPER V. KAXE.
[1!) WoiKl. ;i8(;; Law.son, Us. & C. 33i).]
A property owner in the capital of the State of New
York emploved a contractor to oiade a lot so as to make
it conform to a plan of the streets established by the
city. The parties signed a written agreement, which
provided that the contractor should excavate the lot
and make the necessarv embankments within a certain
WRITTEN COXTKACTS AND OKAL EVIDENCE.
81
time, for which the other, when the work was done,
was to pay him $1S0. As the excavating went on the
contractor piled the sand, which was taken out, on an
ndioiniiii!; h)t, and as was not straiii^e (for when tlic
work wa.5 finished the sand taken out was worth at least
$150), both pai'ties claimed it. *' It certainly iras
mine," said the owner, " and our contract docs not say
that you are to have $180 (iiul the sand for your work,"
But the contractor answered that it had always been
understood in Albany that the material excavated be-
longed to the excavator, and this was one reason why
he had taken the contract so low. In the court, where
the parties at last resorted, the contractor offered to
give evidence of this custom, but the judge would not
allow it and gave the sand to the ownci" of the prop-
erty. But on ai)[)eal the Supreme Court thought
this all wrong, and ordered the court below to permit
the contractor to show such a usage, if he could. It
was oidy fair to conclude, they said, that the parties
contracted v/ith reference to it.
80UTIER V. KELLEK3IAX.
[IS Mo. 500.]
This somewluit novel case calls for a little arithmeti-
cal calculation. Mr. Soulier, Avho was doubtless
l)uilding a new house, ordered four thousand shingles
of a lumber dealer, and paid for them, too. In due
'J
, 3
82
LEADIN(f rASf:S SI.AU'LIFIED.
course of time the dealer's wagon eamc along, and
dumped eiglit large packages of shingles down into
Soutier's yard. "It strikes me that there lias been
somethina- Avronir in the count," said Soutier, when
he saw the p'ickages, " I guess I'll check them." He
went to work and counted them all over, when lo !
there were only two thousand five hundred shingles all
told. Then he hied his wayto the lumber dealer's. " I
paid vou for four thousand shin<rlcs and vou have sent
me only two thousand five hundred," ho vociferated.
"How many bundles did you say you received?"
calmly retui'iied the lumber man. " Eight bundles,"
answered Soutier "but what has that to do with
it ; I paid you for four thousand shingles, not for eight
bundles." " Ah," rejoined the dealer, " but you
know Ave never count them, we put them u[) in bun-
dles of a certain size, and we call two l)undles a thou-
sand." "And if there are only seven hundred ia the
two bundles do 3'ou call them a thousand, then?"
asked Soutier. " Oh, yes," responded the dealer.
" If that's your arithmetic, it isn't mine," said
Soutier, and he immediately brought suit for the ])rice
of the one thousand five hundred shingles he had not
received.
As very often happens, the first court thought the
buyer was rii>ht and the seller Avronij, while the
second court thought just the oi)i)()sito about the
case. But unfortunately for Soutier, the second
court was the Supreme Coui't, and .so ho lost his
monc}'. The Supreme Court said that usage was
always admissible to explain the meaning of a con-
tract. The court below could never have heard of the
WllITTEX CONTRACTS ANJJ) ORAL EVIDENCE.
83
English Riibbit Ciise,' or it never would have made
such a. mistalve. lu tliiit celebrated case, Mr. Smith
leased from Mr. Wilsou a rabbit warren, and cove-
iiiintod that at the end of the term ho would leave on
the land at least ten thousand ral)bits, Wilson to pay
hiin £()0 a thousand for all he left. When the lease
was up two persons v/ore appointed to count the rab-
bits, and they reported the number at nineteen thou-
sand two hundred. But when Wilson came to settle
ho wanted to pay for only sixteen thousand rabbits, on
the ground that " thousand," in that part of the coun-
try, when ap[)ried to rabbits, meant twelve hundred,
or a hundred dozen. Smith did not see it that way,
and brought an action for nineteen thou:?and two hun-
dred rabbits, at £C)0 a thousand. But the court
allowccl Wilson to show that the custom of the coun-
try was just as he had contended ; and all the judges
of the Kinii's Bencli aa'reed that this was correct law.
Tlierefore, said the Sui)reme Court of Missouri in
Soutlpv V. KeUcrmaa, " the usage of a particular trade
is evidence from which the intention and agreement of
paities may be iin[)lied ; and although it cannot con-
trol an ex[)ress contract made in such terms as to bo
entirely inconsistent with it, yet in express contracts
the terms employed may have their true meaning and
force best understood bv reference to such usaire.
Evidence of such usage is adnntted, not to vary the
terms of an cxi)ress contract, or to chan<ie the obliga-
tion, but to determine the meaniui*; and oblii>"ation of
the contract as made. The usage must appear to be
so general and well established that knowled«re of it
""'C
■^'0
.•^3
■■'I'
!4
' Smith V. Wilsou, 3 Barn. & Adol. 1'1S\ Lawsou, Us.&C. iW5.
84
LEADIXC^ CASKS SIMl'LIFIKD,
may be presuincd t<» exist ainoiiir those dealing in the
husinoss to "whieh it a[)i)lies ; so that the coiitraet of
the parties ma}' be taken to liavc been made with
reference to it. In this conntry, many articles which
arc in terms sold by the l)nshel (a dry iiieasnre con-
taininix •eiirht li'idlons), are in fact sold by weiiiht, the
bushel beiiiij; understood to mean a certain numl)er of
poinuls, and the number of pounds diffi'ring in diller-
eut articles — as salt, wheat, etc. When such custom
becomes general and Avell established, so as to be
known to the community, it is obvious that a contract
for a given n'umber of l)ushels must mean the bushel
as ascertained l)y weight, whether, in fact, the number
of pounds of the article sold would measure more or
less than the real bushel. In the ])resent case tlun-e
was evidence that a general custom prevailed in tlu;
lumber trade of estimating two packs of shingles of
certain dimensions as a thousand shingles, without
reference to the number of i)ieces In the pack. If
such was the usa<;e of tlu; trade, so <>"eneral and well
established that those l)uving and *elHni>' mmht be
presumed to deal in reference to it, there does not ap-
pear to have been any such contract shown in this case
as would prevent the usage from applying. Tin; law
commissioner seems to have thought that the defend-
ant could not escape from liability, if the contract was
at so much per thousand, unless there was an exjjress
agreement that two bundles sliould re^jresent a thou-
sand. This was an Incorrect statement of the law in
a case where evidence was given of a general usage,
that a thousand shlnghvs meant two i)acks of certain
dimensions. Whetluu' there was as full evidence of
the usage given as ought to have ])een given, is not '.\
■WRITTEN CONTRACTS AXD ORAL EVIDENCE.
85
question upon which wc i)iiss ; hut there was evidence
of the usage, U[)on which the pui'ty wtis entitled to
hiive the hiw dilFerently dechired, if the evidence
proved the usage as general, Avcll established and
known so that contracts might be presumed to l)e
made Avitli reference to it.
USAGE MUST NOT COXTRADICT CONTRACT.
liLACKETT V. ROYAr^ EXCHANGE ASS. CO.
•its
[2 Cromp. & J. 244; Lawson, Us. & C. 413.]
An insurance company made a policy, which by its
terms, was expressed to be on " the ship (that is the
l)ody), tackle, apparel ordinance, munition, boat and
other furniture of the ship called the Thames" from
London to Calcutta. One stormy day during the
voA'age. a suiall ])oat, which was slung upon the outside
of the ship, on tlie quarter, was washed overboard and
lost. The underwriters demurred to paying for this,
and when they were sued wanted to show a usage of
the trade that boats slung as this one was, were not
protected by marine policies. But this they were not
permitted to do. The evidence did not pretend to ex-
plain any ambiguous words in the policy, or to intro-
duce matter on which it was silent; but it was at
C
I
SG
LEADIXG CASF'.S SIMPLIFIED.
direct variance with the words of the policy, and in
phiin opposition to its hinguago, for whereas the pol-
icy impntcd to be on the ship, and furniture, and apparel
generally, the usage offered was to say that it was not
on all the furniture and apparel, but upon only a part,
excluding the boat. " Usage," said Lord Lyxdiiurst,
in a pithy sentence since quoted by a thousand courts,
" Usage may l)e admissible to explain what is doubt-
ful ; it is never admissible to contradict what is plain."
ILLEGAL CO^TRACT8.
87
TI. — Illegal Coxtkacts.
CONTRACTS TO PUEVEXT COMPETITION.
tf
GULICK V. AVARD.
:^3
[5 Ilalst. S7; IS Am. Dec. ;38i).]
Thoro wore sciunps with eyes .set on the sweets of
the post-office (lepiii'tnient, long before the days of
Star lionte.s. When James Monroe was President,
Giilick and Ward were competitors for the contract to
carry the mails between New York and Philadelphia,
the Postmaster-general having, under authority of an
act of Congress, advertised for proposals for this ser-
vice. Gulick and Ward concluded that as both could
not have it, there was no use cutting each other's
throats in the endeavor to make the lowest bid, and so
they made an agreement, which they drew up and
signed, that if Gnlick would withdraw, and not make
any offer nor induce any one else to compete, and
Ward should get the contract, he should pay Gulick
$1,000 for his magnanimity. The long and short
of it was, that Gulick vv'ithdrew from the compe-
tition, that Ward did get the contract and then,
very ungenerously refused to hand over the $1,000.
'K .
111'-
88
LEADING CASES SIMPLIFIED.
Gulick sued him, but without success. The court
tohi hini that courts of Justice did not sit for the
purpose of cufori-ing contracts aj::ainst public policy,
and his contract with "Ward was decidedly one of that
kiducv. An arrangement which diminishes the num-
ber of com[)etit()rs, lessens the number of i)roposals, or
induces anvlxxlv to abandon his intention of inakinir
un olfer, is directly opposed to the policy of the act of
Congress which calls for bids upon the work. It de-
feats the statute, for it destroys the competition and
precludes the advantages which competition is in-
tended. to result in. And Gulick saw nothing of that
thousand dollars, and lost the contract into tlu^ bar-
gain, as his reward for making an illciral a<jreement.
AGREEMENTS TO IXFLUENCE OFFICIALS.
TOOL CO. V. NORRIS.
[!' Willi. 45.]
About the middle of ISCl, when the United States
government was purchasing arms on an extensive
scale, an nbiquitous individual ai)peared at Washington,
and after lobbying around with great energy for a few
weeks, obtained a contract from the Secretary of War
for twenty-tive thousand muskets of the Providence
I
ILLKOAL CONTRACTS.
89
Tool Conif)iUiy, iit twenty doUiirs each. Norris's exer-
tions wcrii due to the fact thiit he had ])eeu cmphned
I)V the tool coiiq)!!!!}' to get this contract iVoni the
oovernnuMil, thev aizreeini:: to pay him, in the event
of his success, ji very handsome compensation. But
wlien the "vvork was done a dispute arose between
Xorris and the tool con'[)any concerniiiij: the amount
of coin[)ensation which he should receive, and the re-
sult of it was that hv had to l)ring an action against the
company. The jury gave him a verdict for $13,500.
But on a[)peal, the Supreme Court of the United
States (after listening to an able argument by the
counsel for the defendants), set tiie verdict aside, the
court holding that Norris could re-cover nothing for
his services, on the ground that all agreements for
compensation for procuring favors or contracts from
Icijishitive bodies or <>()vernment officers are ai^ainst
public policy and void.'
COXTRACrS IMPEDIXC THE AIUnXISTIiATION
OF JUSTICE.
COLLIXS V. BLAXTERX.
[2Wils. ;U1; 1 Smith's Lcl. Cas. 400.]
AmoniTst other misdemeanants to be tried at the
' If the stiuk'ut is in search of a counsers argument to serve as
a model for liimself, he will find one in tlie brief of the counsel for
the defendants in tlie Supreme Court as reported in this case. It is
one of the best in tlie American K^'ports, its brevity being as con-
spicuously noticeable as its learning and rhetoric.
i)(>
i.KADlNO CASKS SIMI'LIFIKD.
Staftortl Smnmer Assizes, 170"), were five persons
charged with perjiirv. It h:ipi)eiiet1, however, that
their prosecutor, a ^Ir. Kiulge, was not of that h)fty
character which wouKl proni[)t him scornfiill}^ to reject
a brihe. The perjurers decided that he might be
" o-ot at," and they set to work accordingly. A
friend of theirs, a disreputable surgeon named Collins,
was persuaded to pay Rudge £350 to " square " him ;
and, to indcnniify Collins, the perjurers and another
" pal," named Blantern, executed a bond for the pay-
ment of £350. There would scarcely seem, however,
to flourish among perjurers quite that chastity of
honor which is ascril)ed by some people to thieves in
their dealings with one' another : for when Collins
hinted at the repayment of the money he had ad-
vanced he was laughed at for his pains ; and wdien at
last he sued on the bond, the jjcrfidious crew success-
fully pleaded that the consideration for the bond was
illegal, and, although it did not appear on the face of the
deed, vitiated it.
Said Lord Chief Justice Wilmot, in memorable
words, " You shall not sti[)ulate for ini(piity. All
writers upon our law agree in this — no polluted hand
shall touch the pure fv)untains of justice. VViioeveris
a l)arty to an unlawful contract, if he hath once paid
the. money stipulated to be paid in pursuance thereof,
he shall not have the help of a court to fetch it back
again ; you shall not have a right of action when you
come into a court of justice in this unclean manner
to recover it back. Procul Olproculesteprofanir''
ILLEGAL COXTKACTS.
ill
SCOTT V. AVERY.
[.■) II. L, Ciis. 811.]
This Wiis ail action, by a irciitleiiiaii whose uood j^liin
had j^ono to tho bottom, airaiiist a Newcastle Insurance
Association, of which both plaintiff and (lofeiulants wore
niombers. The dcCendants relied on one of the rules
of their jissociatioii (which the plaintilf as a niembcr
had, of course, bound himself to observe), which pro-
vided that no member should l)rin<x Jm action on a
iH)licv till certain persons, bv wav of l)ein<i: arbitrators,
had ascertained the amount that ought to be paid. In
answer to that objection, the i)laintiff contended that
an aixreement which ousts the superior courts of their
jurisdiction is illegal and void, and that the rule relied
on by the defend:iiits was of such a nature. This
view, however, did not prevail. Judgment was given
for the defendants on the ground that tho contract did
not oust the su[)erior courts of their Jurisdiction, l)ut
only rendered it a condition precedent to an action
that the amount to bo recovered should be tirst ascer-
tained l)y the persons specified. The limitation to the
rule that all contracts obstructini:; or iuterferino- with
the administration of the law are illegal and void, was
concisely stated by Mr. Justice Colkridge, as follows :
" If two parties enter into a contract, for the l)reach
of which in any particular an action lies, they cannot
make it a binding term that in such event no action shall
be maintaina])le, but that tho only remedy shall be by
roferenco to arbitration.
The courts will not
enforce or sanction an agreement which deprives the
subject of that recourse to their jurisdiction which has
,3
112
LKADIN'fJ "CASKS SIMI'MFIKD.
been t'ojisidiM-cd <i I'iLrlit tiuiliciiMhlc, cvoii by tho con-
current will > if the piirtics. But iiothiiiix i)rcvciits \r,u'.
tics fVoin iisccrt.'iiiiiiiu" iiinl coii^^fitiitiiiir, :is tlicyi)le:is(\
{\n\ ciuisc of action which is to bitconic tho subjcct-
matter of decision by^th(/coirrts.' Covenantinjj^ i)ai'ties
may airrco^hat, in case of an aneir<'<l breach, tho dani-
aircs rcn(h're(l sh.dl be a sfnn tixed or a snni to be
ascertained l)v A. B., or by arbitrators, to I)c clioscn
in such and sucli a niannei', and until this l)o done or
the nonfeasance be satisfactorily accountcMl for, that no
action shall bo maintainabjo for tho broach."
COXTIi'ACTS VIOLATIXff LA]]'
COWAN V. MIT.IJOURX.
i
[L. U. L' Kxch. L';;i.j
Mr. Cowan was, in 1-S() 7, the secretary of tho Liver-
pool Secular Society, and tin; defendant tho proprietor
of some assenil)ly-roonis in that town, (\)wan eni^aged
the rooms for a series of lectures to show that our
Lord's character was defective, and His teachin<»; erro-
neons ; and that the Bible was no more inspired than
any other book. At the time tho defendant let the
rooms he did not know the nature of tho lectures to be
delivered, and when he found out, his rcliirious sensi-
bilities were shocked, and ho declined to complete his
a<>;reement. The secularibt now sued him for breach
I
ii-ij:(j.\i. ( ontkac rs.
93-
of ('onti'iU't , Itiit tilt' coui'l (K*i(l«'<l that lli(> purpose for
which the |)hiinlitr iiitfiukMl to usi; the rooms \v;is
ilh'<:;!il, find the colli r:i(t , ihcrdoi-c, oiio \vhi<'h couhl not
l)tv ciiforctMl at law. "The (|ucstion is,"' said Chief
• Haroii Kr.1,1-^, "whether one wlio has contracted to
let rooms for a purpose styted in i.^eneral terms, and
who atterwards discoveis that they are to he nsed
for the (hdiveiy of h'ctiireiS in support of a p'roi)osi-
tion A\diieh states, with r''S[)ect to our Saviour and
His leachiiiii, that thelirst is defective and tlu^ sec-
ond misleading', is nevejM heless hound to i)erniit his.
rooms to he used foi- that, [)ur|)()s(! in pursuance of that
i^^'ueral conti'act. 'I'here is ahundant authorit\' for
saying" that rhristianity is part and parcel of the
law of the land, and that therefore to support and
maintain pul)licly the [)roi)ositioii I have al)ove men-
tioned is a violation of the tirst princi[)les of the law,
and eaimot l>e tlom^ without l)las[)heiiiy. I, there-
fore, do not hesital(^ to say that the delVnchint was
not only entitled, hut was called on and hound hy the
law, to refuse his sanction to this use of his rooms."
CONTRACTS VTOLATTXG STATUTES.
1
f
i'
>:-
I
. \.
■
PATTEi: V. GREELEY.
[Ill Mete. L'S4.]
It is enacted hy statute in ^Massachusetts that " no
person shall do any manner of lahor, business or work,
1)4
LEADING CASES SIMPLIFIKD.
except onl}' -works of neeessit}^ aiul cliiirity on tlu!
Lord's day." This being the state of the hiw, a
couple of bakers drew up an agreement which, after
reciting that one liad purchased of the other certain
bread routes, bound the other in the sum of $500 to
quit these routes, and not thereafter to interfere with
the eaters of bread tliereon. To this they set their
hands and seals, but even this solemnity did not ijrc-
vent the defendant from doing just what he had coven-
anted not to do. Then, when he was sued for the
$500, he was mean enough to set np the defense that
the l)ond had been executed and uelivered on Sunday.
And this being proved, the court decided that it could
liot coini)el him to pay it, the plaintiff being unable to
show that the execution on Sunday was a work of
cither "necessity" or "charity." "Was its execu-
tion," said Chief Justice Shaw, " ' any manner of
labor, business, or work,' within the meaning of the
statute? Certainly it was. The Legislature intended
to prohibit secular l)usiness on the Lord's da}', and did
not confine the prohibition to manual labor, but ex-
tended it to the makini*' of barirains and all kinds of
trafficking. The genei'al princi})lo that an action Avill
not lie on a contract made in contravention of a stat-
ute is well established."
^i»i
ILLKGAL COXTUACTS.
05
IMMORAL COXTUACTS.
PEAUCE V. KROOKS.
[L. K 1 Exch. 21 4.]
The plaintiffs were coaeli-buildcrs and the defendant,
one of the demi-monde, had purchased a hron<i:hani
from them on credit, with an airreemcnt that she nii2;ht
return it before the end of the year on i)avin2: the
price of its hire. She did return it, l)ut without pay-
injx anvthinir, and thev brousrlit an action for the iirice.
On the trial thei'o was evidence that one of tiie part-
ners knew that the defendant was a i)rostitute, l)ut no
direct evidence that eith(U' of them l<new that the
hrouirham was intended to be used by her in her trade.
Baron Buamwell instructed the jury that in one sense
everythiuiT which was supplied to a prostitute is sup-
l)lied to h(>r to enable he: .o carry on her trade, as,
for instance, shoes sold to a street wallier ; but that
the tilings supplied, for which no action can be l)roijght
on account of the immorality of the contract, must be
not nierclv such as would be nccessarv or useful for
ordinary purposes, and might also l)e applied to an
immoral cue, but they must be such as would not be
required at all except with that view. The jury l)rinir-
iiig their knowledge of the world to bear upon tiie
case, thereupon found u special verdict that the
brougham was used by the defendant as part of her dis-
play to attract men, and that the plaintitfs knew it was
to be used for that purpose, which the judge thought
;;i
96
LEADIN'Cr CASES SIMPLIFIED.
was a very proper one, as the inference that a prostitute
(who swore that she conhl not read writing), reciuircd
ail ornamental carriage for the purposes of her calling
was as natural a one as that a medical man would want
a hrougham for the puri)(>se of visiting his patients.
The defendant therefore li:id a verdict which was af-
firmed on appeal, all the judges l)eing of opinion that
any person who contributes to the performance of an
immoral act by supplying a thing with the knowledge
that it is going to i)e used for that purpose, cannot re-
cover the price of the thing so supplied.
WAGERS.
GOOD V. EL1.IOTT.
I"
[;! Term Ucp. C'.is.]
Good, Elliott and Heath were discussing local mat-
ters at the cross-roads, when Good ha[)pened to remark
that that new wagon of David Coleman's Avas a beauty.
"Coleman hasn't any wagon," said Elliott, " he sold
it to Susannah T^'e long ago." " Nonsense," returned
Good. "What will you bet?" said Elliott. "I'll
bet you live guineas," said (iood, " that Susannah
Tye has not bought Coleman's wagon." " I'll take
it," replied Elliott. A forfeit was put up in Heath's
hands. On iiiquiry it turned out that Elliott was mis-
l if
ILLEGAL CONTUACTS.
97
tiikoii, :um1 tliiit the wiigou was still ColciiKiii's. But
lie Avould not pay up, and (rood sued him. The (pies-
tion Avas wheliier a waiter was i'ec()V^eral)le at all, and
the court decided that except where they are against
l)ui)iic polic}',^ or are indecent,' or tend to injui-e the
feeliniis of third i)arties,'' waii'crs are not illeiial ; hut it"
not paid, may be recovered at law.
' Oil this iiroiiiiil the following Wiigers liiivr Ix'cii declared void
at comniou law : That one of the parties would not marry (because
contracts in restraint of marriage are void, siivpast]). lOi'), Hartley r.
Kice, 10 East, 22; that a certain bird will win a ctjck-light (because
it encourages cruelty), lirogdeii v. ^Marriott, JJ I5ing. X. C. SS ; as to
the future amount of the hop duty (because it might expose to all
the world the amount of the public revenue, and Parliament was
the only proi)er place for the discussion of such matters), Alherford
V. Beard, -' Term Kep. (ilo; as to the duration of the life of Napo-
leon IJonaparte (i)eeausi' it gave one party an interest in keeping the
king's enemy alive, and theotlier an interest in compassing his death
by unlawful means), (Jilbert c. Sykes, k; East, l."0; as to whether a
ju'isoner will be convicted on a criminal chiirge (because it gives one
of the parties an interest in obstructing or corrui)ting the fountains of
justice), Evans r.,Iones, 5 ]\Iee. & W. 77; as to the result of an elec-
tion (because it gives each party an interest in corrupting the vote
or falsifying the count), IJuiin v. Hiker, 4 .lolms. 4l'i!; s. c. -4 Ain.
I)ec.2'.)L*; Vischer c. Yates, U Johns. 21 ; liust c. Gott, » Cow. 1(J'J;
.s. r. IS Am. Dec. t'.)7;-IIill c. Kidd, 4;i ("al. Clo.
■^ Thus a wager as to whether a certain person is a man or a
•woman, (Da Costa r. Jones, 2 Cowp. 720), or as to whether an un-
married woman will have a child by a certain day (Ditchburii r.
Gohlsmith, 4 Camp. ir»2), is voitl.
■' So, as said in llie principal case, a wager that a j'oung lady who
passes for twenty-three years of age is really thirty-three, or that
she sfpiints, or lias a mole on her breast, would be void. In a later
Knglish case A. and J5., two rival coach drivers, each bet tlio other
his watch that Col. H. would go by his coach to an entertainment
that evening. t)n an action being brought for the stake, Aiuiott,
.!., at the beginning of the argument, .said : " I doubt whether this
wager be legal. The effect of it would be to subject a third party
to great inconvenience by exposing him to the importunities of tlie
98
LEADING CASES SDirLIFIED.
The stuclent should ivmcinher to note iinothcr excep-
tion, viz. : that the particular wager shall not be pro-
hibited by statute. In their irrancbnothorly care for
the morals of tlie citizen, the Legislatures of most of
the States have made illegal a variety of Avagers, and
therefore such bets as come within these statutes will
be void, although valid enough at common law.
COSTIiACTS ly RESTRAINT OF TRADE.
AHiElt V. THACHKU.
[Ill rick. :A\ ;U Am. Dec. UK.]
Thacher, on seHin<r Alizer all his shares in the Boston
Iron Company, agreed with him that he would not at
anv time thereafter, in his own name or in the name of
proprietors of those vehicles; any person who has walkcil through
Piccadilly must be sensible that this is no small inconvenience."
When the case came to a decision all the judges were of the same
opinion. ".V waiter like the present," said Lord Ellkxboroi'GII,
" that a gentleman shotdd go by one of these conveyances rather
than another, the decision of which would expose him to improper
i.nportunity and interruptions, and would abridge the exercise of
his right of electing his own conveyance, certainly exposes him to
some inconvenience. What has been said of the inconvenience
subsisting in Piccadilly is applicable to this case, and arises from
the same circumstances. This wager, then, being pregnant with
these consecjuences to other parties, seems to me to be illegal."
Eltham r. Kingsman, 1 IJarn. i.*i Aid. (is3.
ILLEGAL CONTItACTS.
99
another, couiluct, curry on, use or employ the art,
trade or occupation of an iron founder or caster, or be
concerned, interested, employed or engaged, directly
or indirectly, in any manner whatsoevei, or under any
pretense whatsoever, in the business of founding or
castinjij of iron. Almu* wanted tlie agreement to be
iron-chid, and not content with ordinary writing, it
was executed with all the fornjality of a seal. But
when some years after he came into court to enforce
this contract, the judges verv '^ahnly told him that it
was no use, for this was another of those contracts that
are against public policy and void. The agreement
excluded Thacher everywhere and at all times from
participating in the trade referred to. And then the
court proceeded to point out to Alger several reasons
why such agreements as this were unreasonable, and
could not l)e listened to for a moment.
1. They injure the parties making them, because
they diminish the means of procuring a livelihood and
acom[)etency for their families. They tempt improvi-
dent persons for the sake of present gain to deprive
themselves of the power to make future accjuisitions ;
and expose them to imposit^ )n and op[)ression. Long
ago in England, in Henry the Fifth's time, a poor
weaver was bewailing the loss of some of his cloth,
and declaring that he would follow his trade no longer,
when up comes a designing fellow who offers him a
triilin!'' sum not to weave anv more. The weaver,
read}' for anything, accepts the money, signs a bond
not to work at his trade again, and goes off to the
tavern to enjoy himself. Next morning, forgetting
all about his aLrreement of the dav before, he irets out
his loom to earn his dinner. Mephistophiles, hearing
■,ll
■ill
t
100
LKADIXCr CASES SIMI'LIFIKO.
the noise, pokes liis head llii'otiuh the window tind
points to the bond. The weaver tells liini to go to
ILuh's M'ith his I)()nd ; he isn't goinir to starve, and he
knows no other trade but weaving. ^Ie[)histoi)hih's,
however, goes to eourt Avith his l)ond, witli poor suc-
cess as we shall sec* below.
2. They deprive the public of the services of men in
the emploAMiients and eai)a('ities in which they may ])o
most useful to the coniniunity as well as themselves.
Dr. Skilful and Dr. Blunderer are surgeons. Tluj
former has all the i)ractice until the lattei- pays him a
handsome annuity not to take out his lancet again as
long as he lives. It is obviously a good law which
makes such an agreement null and void.
3, 4, !ind T). Thev discoura<::e industry and enter-
prise; diminish tlu; i)roducts of ingenuity and skill,
prevent eompetition, enhance prices, and expose the
public to all the evils of monopoly. Thus, if all the
gas companies in the United States wen^ to induce
Mr. Edison, 1)y paying him a couple of millions of
dollars, to promise under his hand and seal that he
Avould never invent or enM-t, or manufacture another
electric light in the United States, the bond would not
prevent us from having our streets and houses lighte<l
by electricity, invented and manufactured b\' M; .
Edison, if ho should conclude to break his word, wlii( h
U !'}8tani'e it is to be hoped he would.
>.' M for ti)ese reasons Ali^er left the court-hou^e
v--' ;". *^ lis money, u sadder and a wiser man. He
nn-lii. h.ive fared worse had he lived in the time of the
Phmtagenets, for when the Judge to whom, by liis
hiwyer, the fifteenth-century Mephistophiles sent his
bond, read it over, he tlew into a passion, using soi.ic
ILLEGAL CONTRACTS.
101
very strong langnaoc in some very strange French, to
the effect that, " If the phiintltFwas hero he should go
to ])rison, until he hail paiil a good round tine to the
king for his pains, by God." '
31TTCHETj v. REYXOI^DS.
[<; r. Wins. 181 ; 1 Smith's U\. Ct\s. .".08.]
Lcadiiiir eastwards from that sweet thorouohfare,
Gray's Inn Road, London, is, or till quite recently was,
a street called Liquorpond Street. In that street,
soniethini; like two hundi'cd years asfo, there dwelt a
prosperous baker. So prosi)erous was he that he
baked himself a fortune, and retired on it into private
life. But before retiring he sold his business to the
plaintiir, and executed a bond in which he undertook
not to carry on the ])usiness of a baker in the parish of
Sf. Andrei/:, Ilolhorn, for Jive yearn, under a penalty of
£50. The baker did not know his own mind. Ketire-
ment suited him little, and his lingers were everlastingly
itching to l)e in the pudding. The end of it was that
louix !)efore the five vears were over he was bakinii"
away as hard as ever, and in the aforesaid parish, too.
' The ratlicr vigorous judjiment of IItll, J., in this case is thus
reportcHl : " .\ inii intent vons pnrres avec deinnrre snr ley <|ue
I'oblisation est voide ce (lue lo condition est encounter eonnnou
ley ct per Dieu se le plaintiff fait ici/ il irra al pnsuii tanque il itt<tj'uit
fine uu lioi/.''^
K
102
LEAOIXO CASKS ^IMI'MFIKD.
■>ii,,
Mitchel now sued the perfidious baker on the bond to
recover the £50, and, what is more, lie did recover it.
Though a contract in ahmhtte restraint of trade, is
not worth the paper it is written on, a contract in par-
tial restraint of trade (tliat is where the tradiuii; is not
to take place within a cei'tain area) may be good.
But even here there is another proviso, viz. : that the
restraint nmst be reasonable, that is to say, it must not
be greater than will ailbrd a fair protection to the
benefited party. The contract of our friend, the
baker, was very reasonable — £10 a year for five years
was a good deal of money in the seventeenth century,
and five years was not more than an ordinary vacation.
Besides this, there were other places than this little
parish where he could knead and bake to his heart's
content, with no fear of interference. And so the
agreement was i)erfe('tly legal. Thus, and much more
to the same etiect, spake the court oi King's Bench.
CONTRACTS IX IlESTPAINT OF MARIUAGE.
LOWE V. PEERS.
H Burr. L>1'25.]
In the ardor of liis affection and the hey-dey of his
youth, Mr. Newsham Peers was fool enough to sign,
seal and deliver a document to this purport : —
ILLEGAL CONTRACTS.
103
'* I do hereby promise Mrs. Ciitheriiic Lowe that I
will not niiirry Nvitii iiiiy person l)esides hersi-ir; if I
do, I agree to pay to the said Catherine Lowe £1,000.
within three months next after I shall marry anyone
else."
Ten yenrs passed away, and then the faithless swain
married a girl that was not Catherine Lowe. The in-
jured lady brought an action on the doeument, but
after learned argument it was resolved that it was
void as being in restraint of marriage. According to
the view of the judges — the only sensible one — Mr.
Peers' promise had not been to many Mrs. Lowe, as
might seem at tirst sight to be the case, but he had
promised not to marry ant/hod y except Mrs. Lowe : so
that if tiiat good widow from cajjrice, or otherwise re-
fused to marry him, he would be compelled to live all
his days the celibate and cheerless life of a bachelor.
K
MARRIAGE BROKAGE CONTRACTS.
s;
CRAWFOUl> V. RUSSELL.
[('.2 Barb. 1)2.]
Jeremiah Russell was a wealthy widower in Ulster
County, New York. Christina Koe had her eyes on
the old irentleman's wealth, and made up her mind to
104
LEADlN<i TASKS SIMl'I-II'Ii:!).
I"
::j
hiivo it ; but rocogiiiziuir tlu; aduufc th;il two heads iiro
better than one, she detei'miiied to takc^ lier friend
Susan Craui'ord into the seeret. Susan thought the
idea Ji splendid one, but refused to move a hiind unless
she was to share the ducats. " I don't want the
money now,'' said Susan, " but the old man can't live
very long, and 1 will wait for my share till you are a
rich vounii widow." So the two women set to work
to draw u[) an agreement about the matter, and i)res-
ently tlu^y luid signed and sealed a contract in these
words :
" Susan shall do all she can to aid a marriaire
between Jeremiah and Christina l)y her influence and
services, and in consideration thereof, Chi-istina I'aith-
fully agrees and promises that, in case she becomes the
wife of Jeremiah and outlives him, she will pay Susan
for her services in this matter $2,()()() in cash, and pur-
chase for her a piano-forte and pay for educating her
duuirhter Kate and give her a irold watch."
Then thev laid sieije to old man Russell's heart. Su-
san certainly did her dutv. She never left olf praisiuijr
the virtues of dear Christina when ho was around, she
invited him to her house where the young lady would
unexpectedly drop in, she provided refreshments for
them, and when the widower bei>'an to yield to the
charms of the lovely Christina, it was Susan that had
to i)ay for all the wood and oil that was burned during
the lonij winter eveninos that he carried on his court-
ing in the Crawford house. At last, in less than a year,
the bait Avas hooked, and Christina became Mrs. Jere-
miah Russell. Then as soon as the wedding feast was
over, Susan Crawford began to speculate on the date of
TLLR(}AT- CONTIIACTS.
105
the I'lMicrnl. Thorc sho iniscMlciiliited very l';ir, Cor it
\v;is Iwciit V years before? Jeremiuli got ready for the
uiidei'faUer, l»tit wlieii ho did die Cliristiiia was a very
rich widow, and a veiy mean one, for she deelined to
p.iv her ohl friend anvthinjx. Susan brouiilit an ae-
tion, hut it was no use. The court said that this
was a marriage brokago coiitract, and void. True, the
civil huv aih)wcd match-makers to receive compensa-
tion for their services, its policy ap[)earing to be tluit
all aid rendered in encourajiiiiii- and cstablishiui; mar-
riages was for the good of the nation and productive
of public morality, inasmuch as it discouraged forni-
cation, adultery, and concubinage; but the common
law looked at the thing in ji dillerent light. The lat-
ter considered that the cllect of such auencics was to
enco\irage influences of a pernicious nature b}'^ pro-
moting many unha[)py marriages, causing the loss of
the inlluence of parents over their children, holding
out false and seductive ho[)es, by the self-interest of
l)roka<ro amMits — these were rcaarded as so corrui)tive
in their tench'ucy as to be adjudged Avholly illegal and
void. So Susan got nothing for her pains, not even
the money she had laid out for food, and light, and
lire, for the agreement being void, the claim for these
fell with it.
s. <
lot;
LKAUlXa CASES ISIMrHFIlil).
COrUT WILL NOT All) lUTllKlt PAJi'TY
HOLMAX V. JOHNSON.
[Cowp. ;ui.]
j\Ii'. Ilolmaii was a tea uiei'diaiit , doiirjc business at
DimkirU, at whicli [Aiwe lie sold and didiVvTcd lodoliii-
son (jiiito a lariio (juanlity ot" tliu j)r()diict of the C-oli's-
tial Eni[)iro. Wlicii tho tinio canu! for him to \v,\y for
it, Joliiisou lu'jj^lcftt'd tills littlo mattor, and .so Mr.
Hohnan had to go across to Eniiland and .sue liini for
tiie price. Here, Johnson i)lca(]cd tliat Iho t(>a had
l)ccn bouiiht l»v lilm to be snuiiiu'h'd into England;
tliat INIr. Ilolnian knew it, and tlio contract was, there-
fore, void. jNIr. Ilolnian's counsel replied that it was
not void, because there was nothing illeir'i iu t!ic con-
tract when made, and he was not res[)on,->iM for what
might be done with the tea after it w tst, out of his
hands, and in addition he argued that, even if it was
illegal, dohnson was as l)ad a sinner as Ilolman in the
matter, and it Avould be very wrong to let him take
the tea and the price, too, as his share of the swag.
The court decided that he was right on the first point,
and therefore Johnson must })ay, but that if tho con-
tract had been illciral, Ilolman would have received no
aid from them. Lord IMansfikld, who delivered the
judgment, laid down the rules of law on this question,
and the reasons on which thev are founded, with ijfreat
clearness, iu the following lauiruaiie : "The obiection
that a contract is inunoral or illegal as between plaintiff
__
ir.LKOAL COXTIIACTS.
107
and di^ftMuliiMt, sounds at all tiinos very ill in the mouth
ofllic dcfiMidant. It i.s not t'nv his sake, however, that
the objection is over allowed, hut it is founded in g<'n-
oral pi'ineii)]es of policy which the (h'f'endaut has the
advantage of, contrary to the real Justice, iu between
him and tin; |)laintill', by accident, if I may so say.
The principle ot'})ubli(! policy is this : e.v dofo malonon
orllnr acfio.^ No court will lend its aid to a man wiio
founds his cause of action ujjon an immoral oi" an
illegal act. If from tho plaintilV's own stating, or
otherwise, the cause of action a[)pears to arise ex turpi
cansa,^ or th(^ ti'ansgression of a positive law of this
conntiw, there tho court savs he has no riirht to be
assisted. It is upon that ground the court j^oes ; not
for the sake of the defendant, but l)ecause they will
not lend their aid to such a plaintiff. So if the phi"n-
tilf and defendant were to change sides, and the de-
fendant Avas to bring his action against the })laintiff,
the latter would then have tho advantage of it, for
where l)oth are equally in i'auh, jj'^ti or est conditio de-
fendentisr''
* N ) ciuise of action can firow o>it of a (luestionable transaction.
'^ " From a sca'y dealiiii;."
^ Tiie one in possession lias tlie <' inside tracli."
:.5
1. '
108
LEADING CASES SIMri.IFIED.
EXCEPT WTIEEE ILLEGAL PURPOSE IS NOT
COMPLETED.
•"•w
SPRING CO. V. KXOWLTOX.
[lo;^ u. s. 4',).]
The officers of the Conirress ;iik1 Empire Spring Com-
panv, in New York, formed a nice little scliome for the
benetit of themselves and other stockholders, viz. : to
increase the stock to the amonnt of $200,000, every old
stockholder to have a full-paid $100 share for $.S0.
A paper was passed round among them, to the eU'i'ct
that whoever did not pay the whole of the $S0 when
called for by the company, would submit to forfeiting
"what he had i)aid. This was signed by the stock-
holders, among them being Mr. Knowlton, vice-presi-
dent of the company. Having taken more of tiio now
stock than ho could carry, Knowlton was unable to
pay more than twimty per cent on it, and in pursuance
of the agreement, his payments were forfeited. It is
here important to note that this ^\ hole scheme of in-
creasinj the stock in this wav was in violation of the
law of the State, and therefore illeiral and void. A
little while after, ini'jressed eitlier by fear of the law,
or the unrighteousness of the affair, the company con-
cluded to abandon the wholt; thing, and refunded tiie
money which had been })aid for the new stock. But
they inade no effort to i)ay the forfeited sunjs, and so
the executor of Mr. Knowlton, who had meantime
died, brouirht an r.ction in the Federal court to recover
his money which had been forfeited i-u this way.
ILLEGAL CONTRACTS.
109
Tlic compuuy set up the liiuhly moral defence, that no
trihunal would a'd a party to an illegal contract in get-
ling his inoiuiy back. But the court replied that every
judge sat for just this thing, if it a[)peared that the
contract had not been c()ni[)lcted when the aid was
asked for. There was always time for repentance un-
til the illegal all'air was consummated. '• It is as old
as C'omyns," ' said ]\Ir. Justice Woods, " that where
money has been paid upon an illegal contract, it is a
general ruh^ that if the contract l)e executed, and both
parties are in pari delicto, neither of them can recover
from the other llic^ money so paid ; but if the contract
continues executory, and the party paying the money
l)e desirous of reseinding it, he mav do so and recover
back, by action, for money had and received."
Luckily for the plaintilf, the company had weakened
in its unlawful scheme, and he must have his money.
And the court gave judgment for the Know^lton estate
for the sum asked, which by this time amo.uiited to
something over fourteen thousand dollars.
' Sir John Comyns, Ciiicf Baron of the Court of Exchequer, who
about the vear 17<12 wrote a di-'est of the laws of Euijlaud.
:.?
\u '
4
no
LEADING CASES S13IFLIFIED.
yil. — Perpormaxce op Contracts.
DISCHARGE BY ACT OF PROMISEE.
PECK V. UNITED STATES.
•<»3i
[102 U. S. 05.]
Mr. Peck entered into a contract with tlie proper
officers of the United States to fnrnish and deliver a
certain qnantity of wood an<l hay at the military sta-
tion at Tongue River by a certain day. All the par-
ties intended that the hay should be taken from Big
Meadows in the Yellowstone Valley, for there was to
be found the only available grass for hundreds of
miles. The time for the completion of the contract
approached and as Mr. Peck S(!emed to be going too
slow, and it was absolutely necessary that the station
should have the h:iv, the iiovornment officers, fearinjj
that ho would not be able to carry out his contract,
but not waiting till the time for its completion ex-
pired, allowed other i)arties to go into the Big Mead-
ows and cut the hay for them. Of course, Mr. Peck
could not get the hay now, and so failed to carry out
his contract. It was held, however, in the Supreme
Court of the United Sttites that he could not be made
PERFORMANCE OF CONTRACTS.
Ill
to suffer for it, as it was not his fault. The supply of
liay that ho had depended on had ])ecu taken away by
tlie United States through its agents. They had hin-
dered and prevented him from performing his part of
tiie agreement ; and it was a sound principle of law
that he Avho prevents a thing being done shall not
avail himself of the non-[)erformance he has occa-
sioned.
DISCHARGE BY ACT OF LAW.
BAir^Y V. Di: CRESPIGNY.
[L. U. 1 Q. B. 180.]
People do not, as a rule, choose as eligible sites for
residence purposes the land adjacent to a railroad
depot. For this reason, the plaintiti' in this case had
certainly good cause to complain of the way he was
treated. lie had taken a lease of a house and
grounds for eighty-nine years from a party with the
ornamental name of De Crespigny, and desiring to be
select in his surroundinsrs, had taken a deed from that
gentleman in which Mr. De Crespigny covenanted with
the plaintilf " that neither he (Do Crespigny) nor his
heirs and assigns sjiould or would during the term,
permit to be built on the paddock fronting the prem-
ises demised by the deed towards the north, any
1
112
LEADING CASES SIMPLIFIED.
1:1
messuaoc or d\velliiiii:-housc, eoiich-liouse or stiiblo, or
other erection, save and except siiimncr or pleasure
houses in private u'ardeu ground, and also a church or
chapel at the eastern extremity of (he paddock."
This was in 1>>U). Twenty-tivo years rolled by when
one day a crowd of workman appeared on the scene,
and in a few weeks there arose on the sacred paddoclc
op[)osite the plaintiti"s residence, a building that was
neither a sinnmer-house, church nor chapid, i)ut on
the contrary, to (piote the language of the plaintilfs
declaration, " certain erections other than those in the
deed excepted, to wit : a railway station \vith the ap-
pentenances thereof, including water-closets and uri-
nals." Of course this was nu)re than he could stand,
and he Immediately repaired to his lawyer and com-
menced an action against Mr. De Crespigny for breach
of (ho covenant in the deed as to erections. The
latter re[)lied that Z*^' had not built the railway station ;
it had l)een built by the London & Brighton Railway,
which company had compulsorily [)urchased the })ad-
dock from him by virtue of this somewhat despotic
power given to them \)y their charter. He did not
want to part "with this property in that way, and was
as nuich incensed al)out it as the plaintiff, but the law
compelled him and he could not help himself. The
Court of Queen's Bench, after lu^aring Mr. De Cres-
pigny's plea, decided that it was a good defence, and
that the plaintilF could not recover anything. It was a
case of an agreement rendered impossible by law and
for failure to perform it there could be no liability.
"The substantial (juestion," said the court, " is whether
the defendant is discharged from his covenant by the
subsequent act of parliament which put it out of his
rEllFOUMAXCr. OF CONTIIACTS.
113
power to do so. Wo tire of opinion that he is so tlis-
chiirged, on the prineii)Ui expressed in the maxim, lex
non co(jPt ad hnjjos.slbifia/' ^
IMPOSSIBILITY OF PERFORMANCE.
TAYLOR V. CAi^DWELL.
[;? Best & S. .S2(;.]
In 18()1, Mr. Cahhvell agreed to let Mr. Taylor have
the Surre}'^ Gardens and Mnsic Hall for four specified
summer nigiits, on which Mr. Taylor proi)osed to en-
tertain the British i)uhlic with hands, ballets, acquatic
s[)orts, fire-works, and other festivities. Unfortun-
ately, before these summer nights arrived, Mr. Cald-
welTs premises were destroyed by an accidental fire.
Mr. Taylor had l)een i)ut to great exi)enso in jn-eparing
for his entertainment, and he submitted that, as the
contract was an absolute one, Mr. Caldwell must pay
damages for the breach. It was held, however, that
the parties nmst be taken to have contracted on the
basis of the contiimed existence of the premises, and,
as they had been burnt down without the fault of either
party, both })arties were excused.
The law ap[)licab!e to such cases was thus summed
in) by BLACKuruN, J. : " Then; seems to be no doubt
that where there is w j)ositive contract to do a thing
' The liiw docs not compel a iiiaii to perform impossibilities.
•*3ii;
lU
LEADIXG CA=ES SIMPLIKIEl).
not ill itself unlawful, the contractor must porforni it
or pajMlaniauos for not doing it, although in conse-
quence of unforeseen accidents, the performance of his
contract has become niu^xpectedly l)urthensome, or
even iini)ossihJe. I>ut this rule is only ap[)lii'al>lc
where the conti-.M't is positive and absolute, and not
subject to m . i-btion, either express or im[)lic(l ;
and there arc a...i, ,, Itics which establish the princii)le
that where, f'om the nature of the contract, it appears
that the ])artios n '-t 1 • the beufinning have known
that it coidd not be fultiUcd, unless when the time for
the fultilment of the contract arrived, some particular
specified thing continued to exist, so that, when en-
tering into the contract, they must have contemi)latcd
sucli continuin<>; existence as the foundation of what
"was to be done, there in the absence of any exjjress or
implied warranty that the thing shall exist, the con-
tract is not to l)e construed as a [)ositive contract, but
as subject to an im[)lied condition that the parties shall
be excused, in case, l)efore breach, performance beconies
impossible, from the perishing of the thing without
default of the contractor."
i
Uf POSSIBILITY BY ACT OF GOD.
KOIMNSOX V. DAVISOX.
[L. K. (1 Kxch. L'l;;).]
An eminent jiianist, known professionally as Miss
Arabella Goddard, was the wife of the defendant in
PEUFOIIMAXCK OF COXTIt ACTS.
ii;
this caso, ^Iv. Davison. Mr. Robinson, whoso l)nsi-
ncss was that of a concert nianau'cr, made a contract
with Mr. Davison that his wife shonhl perform at a
concert on the niijht of the 14th of Jannary, 1871,
for a certain sum of monov. The former o-ot cverv-
thiiiij ready for the performance, but on the morning
of the 14th, instead of Mrs. Davison, there came a
letter from her, sayinii" tiiat she was too ill to attend
the concert, and incU)sing a medical certitlcate to that
elfect. 'Phis did not suit Mr. Robinson, at all, and so
he bronirht an action for the l)reacli of the contract,
l^ut all the court held that the sickness, if real, was a
oood excuse. " This is a contract," said Baron BKA.'\r-
WKLL, "to perform a service which no d(>i)uty could
[K'rform, and which, in case of death, could not be
performed by the executors of the deceased; and I
am of opinion that, by virtue of the tcuMUs of the
oriuinal barirain, incapacity either of body, or mind,
in the performer, without default on his or her })art, is
an excuse for non-performance. Of course, the par-
ties miirht expressly contract that incapacity should
not excuse, and thus preclude the condition of health
from beiiiu annexed to their agreement. Here they
have not done so, and as they have been silent on that
point, the contract must, in my judgment, be taken to
have been conditional, and not absolute." Baron
Ci.EASHY was of the same opinion. Said he: "This
is a contract that a lady should perform as a pianist ;
that is, should undertake ;■, duty requiring a high
degree of skill and taste, and one which, if not per-
formed pro[)erly, can hardly be said to have been per-
formed at all. It is, moreover, ii duty which could
not be done by a deputy, but only by the lady herself,
IIG
LEADIN(f CASrvS M.MI'MIIKD.
and that being so, I think that disabilitv^ or inr.ipacity
caused by tlie act of God excuses the? defendant. The
whole contract l)et\vcon tlie ])arties was based upon the
assumption by both tliat the performer wouhl continue
hving and in sufficient health to play on the day
named. This was really the very foundation of the
promise, and vvhen the foundation fails the promise
built on it must fail also."
DEAVEY V. UXIOX SCHOOL DISTRICT.
I-
•-31;:
'
[43 Mich. 480.]
The school directors of a town i i Michigan hired a
teacher for ten months ;it a salary of $130 a month.
He had no more than entered on his duties, 1)eforo the
small-pox broke out in the neighborhood, and raged to
such a ffreat extent that the directors did the onlv
proper thing under such circumstances — they closed
the school until the epidemic had abated, which was
something like three months. At the end of that
time the school was re-opened. The schoolmaster went
back to his work, and also [)resented a little bill to the
board, for the amount of his salary duriiiijc his enforced
vacation. But the directors replied (there was most
likely a lawyer on the board) : " The act of God made
it impossible for us to keep the school open, and the
law books say that the act of God will excuse the faih
lire to carry out a contract." The schoolmaster said
PERrOIJMANCE OF CONTRACTS.
117
ho Avould SCO about tlisit, :ui(l striiiu'htway sued the
directors. The defeiidiint's hiw, tlie court siiid, was
sound, but, for ministers ofpublicin.struct ion, their mis-
use of words was horrible. It was hot " inip()ssi])le "
to keep the school open at such a time ; it was simply
*' daui^crous." The act was not one of absolute neees-
sity, but of strong exi)ediency. Therefore, they did
not come within their own definition, and the school-
master must have his monev.
.:'.3
■ *
BENUXCIATIOX BEFOUE PERFOIUIAXCE DUE
GIVES niaiir to sue.
HOCHSTKIt V. I)i: T.A TOUR.
[2 El. & HI. t;78.]
Mr. De La Tour, meditating a tour on the continent,
enj^aired llochster as his courier at £10 a month, the
service to commence on June 1st. Before that dav
came, however, Mr. De La Tour altered his mind, and
told llochster he should not want him. AVithout
wasting words or letting the grass grow under his feet,
and before June 1st, Hochster issued his writ in an
action for breach of contract. For De La Tour it was
arirued that Hochster should have waited till Juno 1st
before briuirinir his action, for that the contract could
not be considered to be broken till then. It was held,
118
LKA1)IN(} CASKS SIMI'LIFIKD.
however, that the eoiitnict li:ul Ix'cii siiffieieiilly l)r()l<oii
by Do La 'I'our's sayinji; (h'lliiitely that he venouiu'cd
the airi'eenu'iit. "Where there is a contract," said
the court, " to (h> an act on a future day, there is a
rehition constituted Ix'tween the parties in the mean-
time l)y the contract, and they impliedly promise tlnit in
the meantime neither will do anything to the prejudice
of till" other incf)nsistent with that relation. As an ex ■
ann)le,a man and a woman eniraixed to nKirrv,ar(! afTi-
nnced to one another duringtheperifxl between the time
of th(> engagement and the celebration of the marriage.
In this very case of traveller and courier, fromtlio day
of hirini; to the davthe emplovment was to bcirin, thev
were engaged to each other; and it seems to be a
l)r(>ach of an implied contract if either of theiu re-
nounces his euiraiijement."
^iSii'
I-/
•'•,1'
"••Si.'
FROST V. KXIGHT.
[L. H. 7 Kxch. 114.]
i\Ir. Knight promised his sweetheart that, though he
could not marry her at once, he would do so the
moment his father died. Soon after he repented of
his promise, and in the lifetime of his father, told her
frankly that he took back what ho had said, and
Would never marry her. Instantly, without waiting
for the old gentleman's death, she went to law and
recovered, too. "The promisee," said Chief Justice
PKIU'OK.MANCK Ol' CONTHACTS.
11J>
CocKiuruN, " hiis ill! inchoiitc right to the port'onnunco
of the l):irg!iin, wlilch becoines compli'to whoii tho
time for [X'l-roriuiuu'o arrives. In tlie nu'untiiiK^ ho
hus a right to have tho eoiitract ke[)t open as a sub-
sisting and ellective eontraot. Its unimpaired and un-
inipeaehed efHeaey may be>essential to his interests."
COXSTJtUCTIOX OF CONTHACTS.
ROK V. TUAX3IAR.
rWilU's CliL'; L' Smith's Ld. ('as. 44-4.]
A deed bade fair to beeome void altogether as pur-
porting to grant a freehold hi futuro — a thing which
the law does not allow. It was saved, however, from
tliis untimely fate by tho merciful construction that,
though void as what it purported to be, it might yet
avail as a covenant to stand seised, tho court citing
the maxim, beiiirfue faciewlce sunt i titer pretatlones
chartanim, lit res magis va/eat qiiam pereat, which
means that instruments ought to be construed leniently
with all allowances for the ignorance of people who are
not lawyers, in order that, if possible, tho transaction
may be supported.
120
LEADING CASKS SIMrLIFIKD.
nnEAriT or rffn}rrsr: or maruiage.
•"J
WUIGIIT>IA\ V. COATKS.
[1j Mass. I ; s Am. Doc. 77.]
Miss Miiria Wright miin compliiiiK'd th:it .losliua
Coiitcs had brokoii his proiniso to make her Mrs. Coatcs,
and had married somebody else. For this she asked
dainajres in a Massachusetts court. There was no ex-
press promise on Joshua's part, hut there were a num-
ber of nice letters, which she produced in court, all
written b\ him, in which he called jier his dear IMaria,
and besides, had he not taken her to siuiiiuLj-school tor
two years, and always si)ent at least two other
eveniuirs a week in her company? Joshua's lawyer,
hoAvever, was not satistied. In the Hrst [)lace ho object-
ed that actions of this kind ou'jlit to be diseouracjed by
the courts, who should refuse to listen to complaints
of this chiiracter, and this objection beinij^ overruled
(for said the court, "Wo can conceivo of no more
suitable ground of ap[)li('ation to the tribunals of jus-
tice for compensation, than that of a violated promise
to enter into a contract on the faithful performance of
which the interest of all civilized countries so essen-
tially depends "), he fell ])ack on the further objection
that, as Maria had not shown an express promise by
Joshua, she could not succeed. But here ho was over-
ruled again. " That young peo})lo of dillerent sexes,"
said Chief Justice Parkku, " instead of having their
mututd engagement inferred from a course of devoted
PKni'Oini.\\( K OF CONTKACTS.
121
attention, .'uul appiu'cntly exclusive attaclnnonl, wliicli
is now tho coninioii evidonco, should ho obliged, Ixd'ore
tlioy considered llieinselves Ixu.'.il. to I'all witnesses
or (ixecnte instruments under lian<l a id seal, would bo
(lestrurtivo of thai chaste and modest intercourse
which is tho pritU; of our country, and a boldness of
manners would probably succeed, by no means friendly
to the (character of the sex or tho interests of society."
ATCHINSOV V. li.VKER.
[Peak. Ad. Cas. 10:?.]
!Mrs. Baker was a rich wi<l()w ; fair, fat, forty, and
in every way calcnlatecl to crown tho felicity of a man
of nioderate tastes. She yielded to tho persuasions of
Mr. Atchinson, a widower of tho same ago, and })rom-
isod to niarry him. At the time of tho promise, Mr.
Atchinson had all tho a[)i)earanco of l)eing, and no
doubt was, a sound, healthy, ca[)al)lo man, and the
Avidow congratulated hei'solf on ]ier a[>proaching nup-
tial l)liss. But before the ha[)py day came, she was
disgusted to find — so she said — that her lover had
an abscess on his breast ; and immediately the fever
loft her. She vowed she would never link herself to a
putrid mass of corrupting humanity. Mr. Atchinson
])r()Ught an action for breach of i)romiso, and tho trial
elicited some valuable remarks from Lord Kkxyon :
*' If tho condition of tho parties is changed after the
122
LEADING CASES SIMPLiriP:D.
time of milking the contract, it is ;i good cause for
either party to break off the connection LortI Maxs-
FiELD lias held that if, after a man has made a contract
of niarriaue, the Avoman's character turns out to be
different from what he had reason to think it was, he
may refuse to marry her without being liable to an ac-
tion, and whether the infirmity is bodily or mental,
the reason is the same ; it would be most mischievous
to compel parties to marry who can never live happily
together."
A A
WILLARD V. STONE.
[7 Cow. 22; 17 Am. Dec. 496.]
Miss Willard had the same kind of trouble with Mr.
Stone that Maria Wrightmau had with Joshua Coates.
AVlieu she got him into court he did not deny that he
had promised to marry her ; but, said he, '■' AVhen I
gov back from a journey out West, everybody said tiiat
a fellow l)y the name of Frink had cut me out wliiie I
was awav, and this was the reason I broke oft' the en-
gairement." " We cannot list(>n to evidence like that,"
the <'ourt replied, " for Miss Willard was not respon-
sible for whatever Danu» Rumor might say." " But
ouixlit I not to l)e allowvj.l to prove that after our engage-
ment was l)rok('n off she used to take long walks at night
with Frink, and was often guilty of very gross and
mdecent familiarities with him." " Certainly," said
the court, " evidence of what kind of a character the
I'ERrORMAXCE OF CONTRACTS.
123
female complaining is, is always admissil)le in actionb
of this kind. The ohjeet of those actions is not merely
a compensati(ni for the immediate injury received, but
damages for loss of reputation. This, of course, must
depend on her general character both before and after
the l)reacli of promise." And ]\Iiss Willard, on account
of these little indiscretions, lost her case.
■ 3
^.V ENTIRE CONTRACT CANNOT
TIONED.
BE APPOR-
CUTTER V. POWELL.
[G ToriA lU'p. IJi'O: '1 Smith's Ld. Cas. 18.]
The defendant liad a ship which was a])out to sail
from »Tamaica to England, and wanted a second-mate.
In answer to an advertisement a suitable person pre-
sented himself in the shape of ]Mr. T. Cutter, and the
defendant gave him a note to this effect : —
" Ten daA's after the ship. Governor Parry, myself
master, arrives at Liverjjool I promise to pay to Mr.
T. Cutter tlie sum of 30 guineas, [)rovided he proceeds,
continues, and does his duty as second-mate in the said
ship from hence to the port of Liverpool."
The ship set sail on July 31st, and arrived at Liver-
pool on October 11th. But life is very uncertam ;
124
LEADING CASKS SIMPLIFIKD.
!"■■"
'•31,, ..
and on the voyaue Mr. T. Cutter exclKinirod the bil-
lows of time for the haven of eternity. He had gon •
on l)0!ird on July 31st, and had performed his duty
faithfully and well up to the time of his death, whieh
oceurred on September 20tli, — that is to say, when
more than two-thirds of the passage were aecom-
jjlished.
If on these faets the unso|)histi('ated but thoughtful
student were asked wiiether jNIr. T. Cutte. > family
would l)e entitled to see anything of the 30 guineas,
the probaliilities are that he would reply, " Certainly ;
thev might not be able to get the "wlioh; 30 guineas,
biit I supi)ose they would get something for the man's
serviee froiU'July 31st to the tiux; of his d(>ath." In
this oi)ini()U the unso[)hisli('ated but thoughtful stu-
dent would 1)0 wrong. " In this ease," said one of
the judges, " the agreement is eonelusive ; the defen-
dant only engaged to pay the intestate on condition of
his continuiuiT to do his dutv on board durinii; the
whole voyage, and the latter was to bo entitled either
to 30 guineas or nothing ; for sueh was the agreement
between the parties." Said another of the judg(>s :
' This is a written contract and it speaks for itself.
And as it is entire, and as the defendant's promise de-
pends on a condition precedent to bo pert'ormed by the
other party, the condition nnist bo performed before
the other party is entitled to receive anything under
it.-'i
' TIic cdurtH at ilit; present day seem to rejiard the rule in
Cutter V. Powell as a lianl one, and rather favor ixTiniltinLC the
party who has not wholly completed thu entire contract to recover
for what ho has done (especially where the otlier party retains the
bcnellt), less the dama;:e sustained by the latter by reason of the
PERFOUMANCE OF CONTRACTS.
125
MEASUBE OF DAMAGES ON BREACH OF
coy TRACT.
HAI>T^EY V. I?AXEXr>AI.E.
[9 Exch. 3-11. J
Hiulley & Co. were owners of ji steam-mill Jit Glou-
cester. It happened that the shaft of the engine broke,
and they gave it to the defendant, a carrier, to take to
an engineer at Green wieh to serve as a pattern for a
new one ; the defendant's clerk being informed that
the mill was stopped, and that the shaft must be deliv-
ered immediately. But through the negligence of the
defendant the shaft was not delivered promptly, and
in conseciuence Hadley & Co. did Jiot get the new
shaft until several days idler they otherwise would
have done, the mill in the meantime remaining silent
and idle, to the pecuniary loss of the proprietors.
For the loss of the i)rofits which they would h;i ve made
if the new shaft had come to them when they ex[)ected
it, Iladley & Co. l)rought an action, and the question
was whether the damages were too remote. The
court held that i' the carrier had been made aware that
n'5
■ 3
partial UiifuKUment of tho contract. Thus, in a recent case where
I), hired 15. to work for him for seven months at §15 per month, and
H. woiked only llfty-nine days and then (piit without any {lood
excuse, it was, nevertheless, held that 13. niitrht recover from
D. the sum tliat his fifty-nino days' work was worth, deducting the
damafre to D. from his breach of contract. Duncan v. Baker, 21
Kas. !»!),
4
1 ji
12G
LEADING CASES SIMPLIFIED.
fo,t'
"511''.
'-3' I.'
a loss of profits would result IVoni delay on his p:irt,
ho would have beeu answonihlo. But it did not a[)-
pear that he knew that the want of the shaft Avas the
only tiiinij which was keei)inii' the mill idle, and there-
fore he could not he liable for the loss of i)rorits.
Iladleii V. Baxendale is justly ro<rarded as the lead-
ins: case on the subject of daniaires arisinu* from a
l)reach of contract. It lays down the three followinu'
rules :
1. Damaixes which may I'airly be considered as nat-
urally arising from the breach of contract, aecording to
the usual course of thinirs, are recoyerable.
2. Damaircs, not arising naturally, but from circum-
stances i)eculiar to the special case, are not recoyer-
able unless the s[)ecial circumstances are known to the
person who has l)roken the contract.
3. Where the special circumstances are known to
the person who breaks, and the damage complained of
flows naturally from the breach of, the contract under
those special circumstances, such special damage is
recoverable.
PENALTIES AND LfQl^FDATED DAMAGES.
KEMBT^K V. FAHUEX.
[(I Biiij;. Ul.]
Courts are very averse to enforcing: exorbitant
agreements us to damages which parties sometimes in-
PERFORMANCE OF CONTRACTS.
127
ti'odiice into llioir contructs for a violation of their pro-
visions. Something more tlitin h:ilt a century iiijo iin
iictor and a manai'er sat down and made an aixreement.
The actor on his ])art undertook to act as principal
comedian at the manager's tlieatrc (Covent Garden)
for four seasons, and in all things to conform to the
regulations of the theatre ; while the manager agreed
to i):iy the actor £.") (J.s* <S^?. a night, and to allow him a
Itenelit once every season. And the aureement con-
tiiined tlu; clause, " thtit i'f either of the parties should
neglect or refus(» to fullil the said agreenuiiit, oi' any
part i/if'ren/\ or (tn// slipnlafioii therehi contained, such
pai't y should pay to tiie other the sum of £1,000, to
which sum it was thereby agreed that the damages
sustained l»v anv such omission, neiilect or refusal
should amount ; and which sum was thereby declared
by the said i)arties to he liquidated and ascertained
dani(Kje,s, and not a pvnalti/ or penal sum, or in the
nature tliereof."" For some reason or other — it does
not matter what — during the second season the actor
refused to ai!t, and tlie manager now went to law to
recover the whole £1,000 mentioned in the agreement,
although he was cjuite i)repared to admit that he had
not sustained damage to a greater extent than £7r)0.
The manager, however, did not succeed. " That a
very large sum," saidTiNDALL, C. J., "should become
immediately i)ayable in consecjuence of the non-i)ay-
ment of a very small sum, and that the former should
not be considered a penalt}', a[)pears to be a contradic-
tion in terms ; the case being precisely that in which
courts of equity have always relieved, and against which
courts of law have in modern times endeavored to re-
I
128
LEADIN(} CA.SKS SI.MrHFIKD.
lieve, by dlrectinj^ juries to assess the real damages
ijustainod by the breach of the agreenioiit." xViid so
the manasrcr had to l)e content with £750.
FRA UD ULEXT COXVE Y^iXCES.
TWYNE'S CASE.
[3 Coke, 80; 1 Smith's Ld. Cas. 3:$.]
A farmer named Pierce got deeply into debt ; and
amongst his creditors were two persons named Twyne
and Grasper ; to the former he owed £400, and to the
hitter £200. After repeatedly dunning the farmer in
vain, Grasper decided to go to law for his money, and
had a writ issued. As soon as Pierce heard of this,
he took the other creditor, Twyne, into his contidence,
and in satisfaction of the debt of £400 made a secret
conveyance to him of everything he had. In spite of
this deed, however, — in pursuance of the nefarious
ai'ranu'cment ])ctween tiieni, — Pierce continued in
possession just as if he had never made it. lie sold
some of the goods, sheared and marked some of the
sheei), and in every way acted as if he were tiie mon-
arch of all he surveved, and Twvne had nothinijr to do
with it. ^Meanwhile Grasper went on quietly with his
action, got judgment, and consequently the assistance
of the sherirt'of Southampton, who a[)peared one day ut
rEHFOUMANCE OF COXTUACTS.
129
tlic homcstoad with the Intoiition of currviiiii- ofl' In Mr.
(,ir:isi)i>r's iiitcivst wliatcwr ho might c'h.'inco to find
tluTo. This proceeding Twvne, who snddenly :ip-
l)o:u'ed on tlu; scene, sti'ongly objected to, for, suid
lie, " everything on tiiis fiinn l)elon«>-.s to rue, not to
Pierce," mid in [)ro()f of his assertion, he produced the
deed of conveyance.
The qnestioii then wa.s whether this deed of convey-
ance was void within the meaning of an act of Parlia-
ment called the l.'lth Klizaheth (from being passed in
the thirteenth year of the reign of thai, [)ublic-spirited
queen), which [)rovi(led that all gifts and conveyances,
whether of lands or chattels, made for the purpose of de-
laviui:: <>i" defrauding creditors, shall be void as aLrainst
such creditors unless made ui)on;i valual)]ec<)nsi(lerati()n
and bona Ji (If to some person not having notice of the
fraud. It was pretty clear that Farmer Pierce's gift
was for a valuable consideration ; but it was not bona
Jiilc, and Iherelore it was within the statute, said the
court, for tlie following six reasons :
1. It was impossil)le that anybody could really
1)0 so generous as Farmer Pierce had i)ro[)osed to be.
lie had given awav evervthing he had in the world,
even down to tin; boots he was wearing. Such self-
denial could oidy be the cloak of fraud.
2. In spite of his ap[)arent liberality Farmer
Pierce did not let one of the thinu's no, but " con-
tinned in i)os.session, and by reason thereof he traded
and IratKcked with others and defrauded and deceived
them."
3. The conveyauco was made in secret. This
WHS a very suspicious circumstance. If there was no
s
i
ffm
130
LEADIXO CASKS SIMPLIFIED.
fraud why was there so much mystery about it? Why
was not it done o[)enly?
4. It was made wlieu (rrasper had already com-
menced an aotioii and evidently meant l)usine.ss,
5. There was a trust between the parties, and
** trust is the cover of fraud."
(). The deed alleged that the gift was made "hon-
estly, truly and hona Ji(h','' and that was a very sus-
pici(His circumstance in itself.
liECOVEUY OF MOXEY PAID UNDER
MISTAKE.
3LVr^KIOTT V. HA3IPTOX.
[7 Terin Kep. 2(!;) ; 2 Smith's Ld. C:is. 3!)3.]
This case should impress the student with the wis-
dom of taking care of the recei[)t on those rare occa-
sions when he pays his tailor's bill. Hampton,
possibly, was not a tailor ; but he was no doubt a
tradesman of some sort, and in the course of his trade
sold goods to Marriott. These ^Marriott duly paid for
and obtained a receipt. But, instead of carefully put-
ting it where he could find it if he wanted it, ho put it
where he could not find it. By-and-by Hampton, — re-
lying, it may be, on his knowledge of Marriott's care-
w
I'EUFOHMAXCK OF CONTILVCTS.
131
loss pfciitlenianly hiil)its, — scMit in his bill iiiruin with
tho air of a loiij^-siifroring and ill-nsed creditor. Mar-
riott had a distinct recollection of having paid for the
trousers, and stiid so. ILun[)ton, however, challenged
him to show pa[)er, and though Marriott looked high and
low for the document, it could not be found, and, as
IIami)ton bronght an action, he was obliged to pay
over ana in.
v..
But it came to pass that after a while the missing
receipt turned up, and ^larriott carried it in trium[)h
to Hampton's shop. "Yes," said that respectal)lo
tradesman, " it seems rii>ht cn()U2;h, I own ; 1)ut excuse
me if r sa}' that I have got the mone}', and I intend to
stick to it." ^Marriott now went to law to force him
to re[)ay the money, but the student will bo grieved
to hear that his elVorts were not crowned with tho suc-
cess he deserved. Interest reipuhUcce xt sit finis Jifitim.
It is tho interest of tho state that litigation should
cease, is an old maxim of tho law ; and all the judges
agreed that law suits lunst stop somewhere. Said Lord
Kewox, C. J. : " If this action could bo maintained I
know not what cause of action could ever bo at rest.
After a recovery by process of law there must be an end
of litigation, otherwise there would be no security for
any person." ^
' So, if ii man pays ovoi- money with a full knowleds^e of the
facts, bnt mistaking the law of the case, he cannot recover it back.
A sea captain once on a time made a blunder of this sort. He had
brought home in his ship a larjie quantity of treasure, a part of
which he jxave to a certain admiral under whose convoy he had
sailed, not at all in a spirit of gratitude, bnt believing that he was
bound by law to pay it. By-and-by lie discovered that the law did
not compel him to do anything of the kind, and he brought an ac-
tion to get it back, but did not succeed. But if the mistake is cue
1
ir,2
LEAUIMJ CASKS snil'LIFIKD.
yriT. — Salks.
WIIEX SALE COMPLETE, PI?OPERTY FA^.SES
AT OXCE.
TAI{l.f\<T V. !JV\Ti:iJ.
i\
M V
••id
If ■;••—•'
If: ^
"Si
1
:i .
I
[li JJtini. >>c, C'lX's.s. olio.]
On January 4, 1S2"), it was in writiiisr airrocd bo-
twccn ^Ir. Baxter, and Mr. Tarlinu', that tlio lornier
should sell to the latter a stack of hay, then standing in
his field, at the ])ri('o of I'll-"). Payment Avas to be
made on Fehruar}' 4tli,l)Ut the stack \vas to be allowed
to remain where it was till ]May-day. It was not to ])c
cut till paid for. This was held to be an immediate,
not a prospective, sale, so that Avhen on January 20th
the stack was accidentally l)urnt down, the loss fell on
Tarlini;, the bu^'er. " The rule of law," said Bayley,
J., <' is that where there is an immediate sale, and
of fact it is different. Mr. Wlioadon found out to liis firatillcation
tliiit tliis was .so, after a i)assau;(; at law with Mr. Olds. Tlie former
hadl)oui;litalotof wheat of Olds, the (iuautltyl»eiu,L; estimated by the
size of another pile whieh l)oth supposed to eontain a certain num
bcr of bushels, but whieh sul)se(|Ui'ntly was diseovered to eontam
only that number of half l)uslu!ls. This beiu^a mistalic of fact, Mr.
Wheadon succeeded in recoyerinjj the excess payment. Wlieadou
V. Olds, 20 Wend. 175.
NALKS.
133
nothiiii; voniiilns to be doiio by tlin vendor as between
him luul tho vendee, tlie i)r()[)erty in the tiling .sold
vests in tlio vendee, and llien all tlio consequences re-
sulting iVoni the vesting of the pr()[)erty follow, one of
which is that, if it be destroyed, the loss falls on the
vendee."
UXLESS SOMETIIIXa REMAINS TO BE DONE.
3
GIBBS V. BENJAMIN.
[■l.-> Vt. 1J4.]
On the edge of Mr. Giljbs' farm, on Lake Champlain,
there was a quantity of wood cut and piled, which
Mr. Benjamin agreed to purchase at $3.r)() a cord. It
was part of the contract that the parties should meet
and ascertain the quantity. Tliis they ditl a day or
two later, but thev had scareelv commenced the meas-
urinir 1)efore thev disa<;reed ou tho method of doinii:; it.
This issue grew into a controversv "vvhich was not set-
tled when a Hood came along and carried the whole of
the Avood into the lake. Tlu-n Gil)bs sued Benjamin
for the price, claiming that tho latter having previously
bought the wood must stand tho loss. But tho court
decided that tho property had never passed to Bejanun
and that he was, therefore, not liable for the i)rice.
" The prin.cipie is well settled, and uniform in all the
184
LKADINO CASKS SIMPLiri KD .
oasos," stiid Hkdfikld, .1., " that when anything re-
mains to be done hy eitlier or hotii parties, preeedent
to tlio delivery, tlu! titl(^ does not pass. And so hi-
lU'xihle is tlie rule that wlien the property has been
(h'hvered, if anvt liinu: remains to l)e (h)ne l»v the terms
of the contraet before the sale is eomplete, the prop-
erty still remains in tho vendor. The contract must
ho exrcufc'l to ellect a completed sale, and nothing fur-
ther to be done to ascertain the (jiiality, (juantily, or
value of the pi-oju-rty. The ireneral ruh' in relation to
the sale of jjersonal property is, that if anything re-
mains to be done b^ the seller belbro delivery, no
property passes to the vendee, ev(Mi as between the
[)arties. This rnh;. of law, applied to llu^ facts as re-
ported in this case, retains tln^ pi'oix'i'ty in the wood
in the plaintill", and leaves the contract executory and
as a sale incomplete."
WAlillAyTTES.
CHANDEI.OR v. T.OPUS.
[-' Ciu. 2; 1 Smith's U\. Cas. 2;i8,]
In the days when superstition was rife — for it was
half a century before Sir Matthew Hale began to burn
witches — it was generally thought that a bezoar stone
.SALKS.
135
wiis ii eliiirm Jiiiraiiist most of tin; ills of lifo; mikI siu^h
stones ii('('()r(liiii;jy l)roiiirht l>i_u' prices. ]Mr. L()[)us
liiid ii j)iir(]()n!il>l(.! (losiro to Ix! t'xcmpt from mh many of
the ills of lifo as possililc, inid went to Ciiaiidi'lor's
slioj) — Cli!iii(U'Ior was a jeweller — and paid £100 for
a stono that tlu; tradesman distinctly told him was a
hezoar. Mi". Lopns went away u hai)py man, l»nt after
a short titne, findinLj he was not so free iVom the ills
ji»l' life as lu! ex[)eeted to l)(>, his suspitiions were
aroused. Ho made inquiries, and discovered that his
fancied treasure was not a hezoar at all, and was
decidedly fitter for inendini:" tlu! hiirliway than for
curini; anvl)od\ 's neural<>:ia.
Undei" these eireumstances, Loi)us went to law
with
the jeweller who liad sold him the stone. But ho
failed, lor ho was unalih; to ji'ivo satisfactory answers
to two questions which tho jud«i('s put to him, viz. : —
1 . Did Cliiindclor wwniwv Ihln slonc (o he a Ix'zoar?
"No," repliecl Lopus, gloomily, "I can't say ho
exactly warranted it. But he eortaiidy f<aid it was a
hezoar.'"
"Very likely," said tho court, "but faying isn't
loarranting. You cannot recover in contract."
2. Did C/tande/or, when lie told yon that it was
bezoar, know that it was not?
a
How on earth can I tell," replied Loi)us, " what
tho irin knew, or did not know?
Ihei
said tho court, " neither ei
Hi you recover
in tort.
Tho probabilities are, that if Lopus had been a liti-
gaii of to-day, ho would have succeeded on both
points. He would have hit the jeweller in contract
because " (jvery affirmation at the time of tho sale of
l.'}()
LEADING CASKS SIMl'LIKIKU.
n. personal chattel U n warrant'/ ii^ it ai)[)oars to hav^o
bocn iiitenclcd as sueli," and Cliandolor's assertion
that \hc stont? Avas a l)t'Zoar wonld, no donWt, l)c cnii-
sidcrcd snlHcicnt. IIo would liavo succocdcd ni tort,
because (lie Tact that the defendant was a jeweller
would he damning evidenee that ho knew one slono
IVo!" •mother.
IMPLIKI^ WAJinAXTY OF Ql'.U.ITY OF HOODS.
JONKS V. JUST.
[L. I{. ;'. i.i 15. i;i7.]
Jones &: Co., Liverpool mendninls, nirrced to buy
from Mr. .lust, a London merchant. •" numlier of bales
of manila-liemi), which were exj,. .•ic(l to arrive in
sonu> ships from SinL:a[)ore. 'I'he hemp did arrive,
but, Avhen it was examined, it was found to ho so nnieli
damnucd that it. woidd not pass in tho market as ma-
nila-hemp ; and flones & (^o., who had [)aid tlu; price
before the ships :irrive;l, had to sell it at seventy-five
per cent of tiii! [)ric(! which similar hemp would have
realized if undanniwd. This was an action by them
against the seller, who was admitted to have act'^l
quite innocently in the matter, to recover tho dill'er-
ence ; and it was held that ho must pay it, on tho
ground that in every contract to supply goods of u
SALES.
137
specified description, wiiieli the buyer has no o[){)or-
tiuiity of inspecting, the goods must not only eorre-
s[)ond to tlio .«peci(ied descri[)tion, but must also bo
Sideabb" or merchantable unib'rthat description.
Tlie maxim caveat cniptor (the buyer must look out
for himself) generally applies as to the quality of
goods .sold, and uidess there is an express warranty
thei(! is no warranty at all. But a warranty is impllid
in th(^ followiuii; cases : —
1. When li'oods are sold bv a trader for a particular
pur})osc of which he is well aware, — e.ij., co[)per for
sheathing a shi|),' or a ropo for hoisting goods, ^ or
fertilizini; manure i'or a farm,' or boxes for ))ackin2:
tobacco in,^ there is an implied warranty on his part
that tluy shall be reasonably tit for the i)ur[)ose for
which they are bought.
'2. AVhen the contract is to furnish manufactured
iroods thev must bo of a nu'rchantaI)l(^ nualitv.
?>. In the case of a sale by sampler there is an ini-
])lie<l undertaking that the sample is fairly taken iVoui
tiie bidk.
4. The custom of a particular trade may recpiirc a
wairantv where none is exnrcsslv ^lis'en.^
T). On the .sale of chattels there is an implied war-
ranty of title ; /.'., that they are the property of the
purchaser.'*
• Jones r. Hriirlit; .0 IVmir. 'uV,\.
- Hniwii r. Kdiiiiiiitoii, L' .Miic. & (J. L'7'.>.
^ Mason ; . (liappi'll, I.") Gnitt. tu'l.
* Gt'i-st f. Jones, lOCVnt. L..I. loO.
■'■' Tiiiwsoii, Us. i^ ('., ^(•(•t. l.'iS.
"■ Tliursion r. Kpriitt, ;i-' Me. '-'02; Williamson v. Simmons, 34
Ala. C!)l.
3
t
# •
l^J.S
. M:Al')IN(t CASKS SIMl'I.iriKI).
WAJiJiAXTY MUST HE I)1'1UX(; COUltSE OF
SALE.
HOGIXS V. l»I.V>lPTOX.
•■ft >'
H
[11 rick. '.17. ]
Tln' pl.'iiiitiir i)uicli:is('(l of llii' (lofi'mluiit ;i qiKinlity
of wiiio in l><)ttlc's. Al'tcr the s'.i\q was coiisimiiniitcd,
and tlu! iK-rcndant had r(H'(>iv('d payment in ii{'u()tial)l(^
paper, ho wrote out a nieinoranchun of the: sah", which
he sent to the phiintill". In liiis tlic wine was (h'scrihcd
as '"good line wine.*" lint when the j)hiintir eaine to
open the bottles, \n\ found that it was anvthiuii" hnl
"good tinc! wine,'" — in short, it was very had sour
wine. 'I'hen the plaint ilf hi'onghi an action aUeging
that the <h'sci'i[)tion of the li(pior in liie ineniofandnin
of sale was a Avari'antv that it was rnxxl fine wine, l^ul
the court held that it was not necessary to decide whet her
this was so ov not, for the reason that the strongest kind
of a warranty, if iixn/r afli'v thv xhIp is vniiiphtt'd , is
invalitL To sui)port a warrant v not uiveii in 1 he course
of the .sale, tlu're must hv, a new consideration ; for the
consideration i:iven for the "oods is exh;iust(>d hv their
transfer without a warranty, and there is nothing to
support a suhsecpient warranty.
PUIN'<;il'AL AND AGENT*.
139
IX.- PrJXCIPAL AND AgEXT.
SPECIAL AGENT MUST PURSUE AUTJIOIUTY.
liATTV V. CAKSWEI.L.
[L' Johns. 4.S: 1 Am. \a\. C'as. d.-;;;.]
'3
Mr. AI)iior Car.swoll, at tlio solioitiitioii of his brother,
who Avantol to raise some money, told his aueiit that
lie mii^ht siu'ii his (Al)iier's) name to a note lor $2r)0,
pni/aJtJe in six ntoitf/is. A lew days after, the brother
and th(^ aufciit liot toirethor, and the agent signed
Abiier's uauu) to a note for $2^)0, payable in ,s/xf>/
<J(t>/s. The brother gavc! tl is note to a ereditor. "When
it fell due, Al)ner refused to pay it, and the creditor
sued him, but without success, the court deciding that
as this was a s[)e('ial authority to do a particuhir thing
in a })articul!ir way, the priiicii)al was not liable for the
act of the agent iu executing his power iu a different
WHY.
140
LKADINd CASKS SIMPLIKIKD.
DEATH OF PIUXCIPAL REVOKES AUTITOnTTY.
HAIlPKIl V. I.ITTI^E.
[•2 Me. 14; 11 Am. Dfc. 1.]
Ill March, ISll, Mr. "Williaiu J.icksoii, who ivsidod in
^Ic'xico, iiavo a [)()\V(M" of attorney under seal to Har-
per, aiitlioriziiiiji: him to sell his real estate in Portland,
]Maiiie. On the <Slh ol" January, 1814, Harper, as
Jaekson's auont, sold the i)roi)orty to Little and
received and pocketed the purchase-money. Ret\V(>en
these two dates there had heen a little niisnniU'rstand-
\ug hetwi^en the Unite(l States and (ireat Britain,
Avhich had interrui)ted intercourse hetween ]\Iaine and
foreign countries, and, consequcMitly, it was some time
after the sale had heeii consummated that it heeanui
known to the parties in Portland that Mr. Jackson had
departed this life on the eiii'hteenth day of Aujiust, 1813.
His executors failing to obtain tin; pnrchase-moui'V
from Harper, l)ronght an action to recover the pro[)-
erty, and were suv-cessi'ul under tlu; rule of law tiiat
the death of the princii)al causes an instantaneous revo-
cation of the authority of tin? i)rincipal.'
* "A few illiistriitioiis," siiys the writer of ;i forcible Jirticlt! on
this sul)ject, iJiiblislu'il a f(!W j'ears a;j:o (see (i (^ent. L. J. 38;?), " will
servo to show how tcclmieal and artillcial are the reasons which
have iK'cn considered snllicient to justify the rule that no valid act
can he done by an airent actiun for a deceased person, thou;j;h no
notice of the death of tiie iJrincipal lias reached the i)arties at the
time of the transaction.
•* Suppose A., wlio lives In Milwaukee, does the followinji acts
on the Jlrst day of May : —
" I. Executes his promissory note to 15., due one year after date.
•' II. Executes his last will and testament in proper form, l)y the
PUINCII'AL AM) AGENT.
141
CONTRACTS WITH AGENTS OF UNDISCLOSED
PRINCIPALS.
l»ATKItS<)\ V. GAXI) VSKQUI.
[l."> Kast, •;•.'; L' Sinitli's \A. <':is. ;U',i.]
Giind.'isefiui, a respectable and eiitin'})risin2^ Spanish
iiu'rehaiil, made up liis mind that tlu; foreign market
<'()iild do with some silks and satiiis. Ho accordinfrly
set sail I'oi' Eniilaiid, aiid, on rcacliiiig London, went
to Larrazabal &:, Co., certain aiiients in the city, and
commissioned them to hnv a (luantitv of ^ioods lor
tiTiiis of wiiicli liis luopcrty is left mainly lo stranjicrs, and bis
natural lirii's, tlioimh ili'siTvlii;;, arc left with l)ii( u pittance.
"III. (lives ('. and 1)., who are his a;reiits at New York, each
written anthority to purchase certain jroods in his iianu-.
•' < )u .May lid he writes to ('. not to i)ny any j^oods. The next day,
May .".rd, \. is accidentally killed.
" Let ns see iiow far tiie law respects liis wishes and compels his
representatives to fulfil thi- ohlitrations he has incurred. <»l' course
his reiireseiitatives must pay the note, though iiiven \\\ liis iKtuw,
and therefore the promisi- of a dead man. In this case the law im-
plies an agreement on his i)avt that his representatives shall be
hound hy liis contra*-!, and gives effect fo that agreement. His
wishes as set forth in the will are respected and enforced by the
law, though lliey are tin' wishes of a di-atl man, a man who can no
longer act, and tliongh they do great iujustice to those who sliould
rightfully enjoy his property.
"On May ;!rd, ('. and I), receive .\.'s letler>, written May 1st,
and each purchases goods according to his iustriictions, (.). pur-
chasing Immediately before, and 1). iuimediately after the death
of A. Kach agent ships the goods b'onght by him to Milwaukee,
consigned lo .\. The goods are snbseiiuently destroyd on the
roail by the ' act of God.' The parties ol whom the goods were
?
142
LEADIXa CASES ISIMl'LIFIED.
hiin. huYV. & Co. (lifo is too short to vopcat tlio
whole name) proceeded to execute the coiniuissioii,
and iiskod Pat<M'son & Co., ji great hosiery 11 nn, to
send certain si)cci(ied artiides, with terms and prices.
Now, Paterson & Co. knew Larr. & Co., and Iim'I per-
fect confidence in them, hut Gandasecpii ihey did not
know, and had no confidence in. Therefore, though
thev sent the "-oods and tliouijrh thev knew i)ei'fectlv
well that they were really for Gandasecnii, and that
Larr. & Co. were mcrelv his amaits in the matter, yet
for all that they hooked the goods as sold to Larr. &,
Co. This was unfortunate, l)ecauso it hiip[)ened that
Gandasecjui was really a more sul)stantial p(>rson than
his agents, who shortly af"terwai(ls went to financial
smash. Paterson was not disposed to he content with
the fraction of his deht, which, a> a credito'' in l)ank-
• r'
purchased tal<e steps to recover tlie i)urcliase-nioney of tJie repre
sentatives of A. Now, tlie aiitliority of C. to purchase jioods was,
m fact, reschi(U'(l l)efore the}' were brouttiit, by tlio seeoutl letter of
A. Tlio hiw, however, very i)roper]y protects those who deal with
au agent without notice that liis authority has been rt'voknl, and
the fact that A. had done all in his power to revoke the order he
had previously made, and that .sucii order was absolutely rescinded,
would not enable the representatives of A. to avoid the Uability he
thus assumed. But in the case of I)., irhose anthoritij A. never at-
tempted or ■intrndrd to reriifiC, the law holds, that the vendor of the
goods cannot recover, simply because tin,' party in wiiose name the
contract was made, was not livin;^ at that time. In both cases, the
act, //// rirtue afvliidi lurh (Hjent k^is eiiijioWir' d to lut'i, vu:' tlic aet of
a lir'nij princip(tl. In tlie case of (-. the principal does all in his
power to prevent the agent from acting; in the case of 1). he de-
sires the agent to act, and does nothing to prevent him. The law
interposes a technical rule which entindy defeats his intentionsj
and in I'ffeet places upon one of tlie innocent vendors the burden
of paying a heavy insurant! on the life of A. without receiving any
consideration therefor."
L.,
I'lUNCll'AL AM) AGENT.
143
ruptcy, ho nilirht luivo got from Lsirr. & Co., iincl,
with the huidablo object of gottiiii^ the whole of his
money, sii(!(l Giuuliisequi. But it was held thut, if the
seller of goods knows tluit the person he deiUs with is
only 5in iigont, and knoics a/.^o wJto hi a pnnclpnl is, tind
in spite of that knowledge chooses to give tin? credit
to the agent, ho nmst stand by his choice, und cannot
sue the princi[)al. " I havo generally understood,"
said Bailkv, »!., " that the seller may lookto the prin-
cii)al when ho discovers him, unless he has abandoned
his right to resort to him. I agree that where the
seller knows the principal at the time, and yet elects
to i^ivo credit to the airont, he must be taken to havo
abandoned such right, and cannot, therefore, afterwards
sue the principal."
3
THOMSON' V. J)AVI<:NP0IIT.
[;t Burn. & Cress. 7S; -j Smith's Ld. Cas. :i")S.]
A person named McKune carried on at Liverpool
the business — whatever it may be — of a "general
Scotch merchant." This gentlemen one day received
a letter fVoiu some customers of his in the land of
Burns, to tho following ertect : —
DuMFUiKS, March 29, 1823.
Dkau Siu ; Annexctl is a list of ffoods which vou
Avill please procure and ship j)pr Nancy. Memorandum
of goods to bo shipi)ed. Twelve crates of Statibrd-
144
LKADINd CASKS SIM I'LIl'l Kl).
shiiv w:if(^ orovii window jihiss, ti'ii s(ni:ir(' boxes, I'tc,
etc. Yours, ot<!.,
TllO.^ISON iii Co.
On receiving tliis letter McKune went straiiiht to the
shop of Diiveuporl &i\)., who were ghiss jind earthen-
ware deah'rs, and had an interview with their head
partner. lie did not i)retend to be l>uying for liiinself.
He said he had received an oriU'r to ])nrcliase some
ijood.s for some customers in Seothmd, hut /m (fid iiof
mention tlieirna me , {\\\(\ the Davenports did not ask for
it. They sokl about £:?()<) worth of goods and dc^bited
McKune, though they knew perfcH'tly Avell he was
only an agent. Then McKune faiU'd without having
l)aid Davenport & Co.
This was an action by Davenpoi't & Co. against
^IcKnne's ])rincipals, Thomson & Co., who denieij
their liabilitv on the iiround that Davenport *.*c Co.
had debited ^NIcKune, and could, th(>reforo, look only
to him for payment. This view, however, was not
adopted by the court, and Thomson & Co. wei-e nia(h'
to iiiiy, tlu^ principle being that, as the name of the
real buyer had not been disclosed to them by the
agent, the sellers had had no opportunity of writing
him down as theii' debtor.
The chief rules on this subject are — 1. ^Vhere vou
contract with a man whom you know to be an agent,
and you know also who his principal is, but, in spite
of such knowledge, you give credit to the agent, and
to him alone, you are bound by such election, and can
not afterwards sue the principal.
2. AVliere you deal with a man who appears to be a
pruicipal, you may, on discovering that he is only an
ritlNCIl'AL AM) A(H:.\T.
145
agent, sno liini or lils principal at your plciisurc. It
is necessary, however, that you should make your
election between them within a reasonable time.
3. Where 3'ou deal with a man who is known to bo
an agent, but whose principal is undisclosed, you may,
on giving evidence that he is himself i)rincii)al, sue
him ; otherwise, you must sue his princii)al.
4. If a person siijns a contnict in his own name
without disclosing the fact that ho is only an agent,
]\{) is prima f((cie to ha decMUed the piM'son res[)onsil)le ;
and, on action bcini!; brouuht airainst hiiu on the con-
tract, he cannot tui-n i-ound and shutHe olf his liability
bv savinii" that lu; was onlv somebodv else's aijent.
Parol evidence to ])rove such a thing would not be ad-
mitted, and if he gets out of the (»(!ra[)e at all, it will
be because it is quite clear from the rest of the docu-
meiU- that he did not mean to bind himself personall3\
And, indeed (as w(! shall see in the next case), the
person who has signed a contract in his own name may
still bo liable, although in the Ixxly of the contract ho
has expressly declared himself to be an agent.
.•3
STOXK v. AVOOD.
[7 Cow. t.V'.; 17 Am. Dec. .-.I'll.]
Captain Stone, part owner and master of the good
ship George, and Timo N. Wood entered into a con-
tract under seal, the provisions of which are not rele-
13
14U
LKAUINU CAS^K.S t^l.Ml'LIlli;i>,
vant to this Iiistoi-y. It Is enough to s:iy tli;it the
COiilract cU'sc'l'ilx'd Wood " ;is ilj^ciit of ,1. Si Iv. K.'iV-
nioiul,"' aiul rcleri'tHl to him tlii'oiiirhout "as agent,**
ch)sing with ail agreemeiit by Wood "as agent," to
pay a certain sum to the captain on c(!i'lain conditions.
These conditions hcing [xTJoi'ined, the captain sned
for the money, to wliich ^^'ood i'ei)lied that J. & Iv.
Raymond were the persons to whom ho ought to h)ok.
But the cai)tain did not see it in tliis liglit, and neither
did the Su[)reme Court of New York. They said that
an agent signing a contract in liis own name; is pc'-son-
ally hound thereon, even though lie is (h'scrihed in it
as an airent. 'iMu; words " as auent,** are a mere de-
scription of the jjcrson.
»
SET-OFF AGAIXST PlilNCIPAL.
•*■■
OEOHCJK A. ci.A(;ett.
[7 Term He]). ;•.:>".»; L' Sniitli'sLil. C'as. 1S5.]
Messrs. Kicli & TIeapy cari"ie(l on business in woollen
ch)ths. For \\h\ purposes of tlieir riches heaping they
not only carried on business on their own account, l)ut
acted also as factors for other peopl(\ A factor, it
should be remarked, dill'ers from an ordinary agcMit in
having the possession of the goods of his i)rincipal
which he sells. As Kich & Ileapy carried on all their
business at the same warehouse, it would not be ob-
I'UINCirAL AM) A(ii:\T.
147
vious when they wore acting as principals and Avlion as
airojits. At the lime of f)ur story, Messrs. Rich &
Ilcain' ha[)p(MU'(l to liavo In their possession as factors
a large (luantitv of i^oods helonsjin;^ to Mr. Georue, a
clothier of Fi'onie, wliich goods were in their ware-
house along with ijoods belonixin*/ to tlioniselves. It
happened Just thou thiit Messrs. Clagett were in want
of such goods. Tliev held a hill of exchanije for
£1200, aeoei)ted by Rich & ileapy, and as they saw
no particular liki-lihood of getting i)aid, they thought
it would not bo a bad plan to buy goods from them on
credit, and deduct the amount of the bill from the pur-
chase-money. In pursuan<'e of this plan, Messrs. Rieli
&, rieap}^ sold them a (piantity of goods ; making out
a bill of j)arc(>ls for the whole in their own names, and
Messrs. Cla<rett fuliv bidieved that thev were dealing
with principals. Messrs. Rich &, Ilcapy took the
goods out of one general mass in their warehouse, so
that .1 large i)ortiou of them reaTly belonged to the
clothier of Frome, the unfortunate Mr. G(!or2:e.
This was an action by that gentleman against Messrs.
Clagett for the jirice of the portion of the goods
which belouii'ed to him, and which lu^ said Messrs.
Rich & Ileapy had sold as his agents. Messrs. Clag-
ett said they did not know that Rich & Heapy Avere
his airents or anvl)odv else's a<;ents, and claimed to
have the same riiiht of set-otr(that is to sav, of de-
ducting the above-mentioned del)t) which they would
have had against Messrs. Ricii & Heapy. In this con-
tention thev were successful.'
"r I
' " 111 all these cases of set-off," says an eminent judsje in a
later case, "the law eiidea'-ors to meet tlie real honesty and jnstice *
of the case. Where ^oods are placed in the hands of a factor for
148
I,i:\l)IN(l (ASKS SI.MI'F-II'IKl).
AGENT KXiJEEDINd ArTIIOIlITY LlAllLK IN
CONTRACT.
COLI.KX V. AVItlOHT.
m
' It"'
[7 Kl. v>t HI. .'501 i S Id. (-47.]
Mr. Wriirlit was tlu^ laml !IL'<mi< of a u-cntlcniau
iianitMl Diiiiii (Tardiici', and as such madi^ an a^'i'*'*'-
iiu'iit with a Mr. CoWcn lor tlic lease to him lor twelve
and a-lialf years ofalai-iu ol" Dunn (Jardner's. On
the strength of this airreement Collen entered on the^
enjcn'inent of the farm ; l»nl In; soon fonml that tliere
was a serions dillienlt y in the way. Mr. Dunn (Jard-
ner 'efnsefl to execute any such h'ase. savin;; lii-'t he
had never antiiorized Mr. Wriuht to airreo for a lease
for so long a term; and this proved to lu' the fact.
The disa[)i)ointed.fai"mer hrou^lit an acti(»n airainst th(>
executors of tiio*airi!nt who had h-d him wronn", am!
the n ain (juesticin was whether Wright's assuminu-
to act as Dmm (Jardner's airent to ixrant the lease
sale, and arc sold by liiiu imdiT (•irt'iim^tanccs that arc calculatcMl
to induce, and do indiicc, a |)nrclias( r to bi'licvt; tliat he l>i dcalin;^
with his own fioods, t!io principal is not pormlttcd afterwards to
turn round and tell the vendee tliat tlie cliaracter he ld:n.-eif has
allowed tlie factor to assume did not really belong to him. The
purchaser may have boujifht for the express purpose of settinj; off
the price of the yoods against a debt due to him from tiie seller."
These words put the rule and its reason very clearly. "Rut the
case is different where tlie purchaser has notice' at the time that the
seller is aetin;; merely as the aiient of anotlier. In tliat case, there
would be no honesty in alhnviiii^ the purchaser to set off a bad debt
at the expense of tiie iirincipal." Fish r. Kemj)ton, 7 C. ]J.
rUlNCIl'AI. AM) AOINT
149
aiuouiitod to II contract on liis part that lii> had such
aiilhoiit y. I'his was tlic view a(h)|)l('(l, so that
Wriu'ht's excciitoi's hccaino liahh! to Colh-n. " I am
of opinion," said \\*iM-r.s, J., (U-livcrini; 1 he Judiinicnt
of the Court of KxiduMpicr ChandxT, "that a [)('i'soii
who iiidnccs anothci" to contrac't with him as tho airciit
of a tiiird party, l>y an nncjntdificcl assertion of liis
being anthorizcd to act as snch aixent, is answerable to
tho person mIio so contracts, for any danniges which
ho may sustain by reason of the asscnlion of authority
x'inii; untrue.
This is not tho oaso of a bare misstate-
ment by a person not bound by any duty to irivo \\\-
lornnition, Tht; fad that tiie professed agent honestly
tliiidvs that he has authority all'ect.s the moral charac-
ter of his net ; l>nt his moral innoeonce, so far as the
person wlioin he has induced to contract is concei'iied,
in no way aids such person or alleviates the inconvi'iii-
enc(! and damaiio which he sustains. Tho objiiratioii
arising in such a case is w(dl expressed by saying that
a person [)i'ofessing to contract as agent for another
im[)lie(ljy, if not exi)i'essly, undertakes to or promises
tho person who enters into siudi contract u[)oii tho
faith of the professed agi'ut being duly authorized,
that tho authority which In; professes to have does in
point of fact exist. Tho fact of entering into tho
transaction with tho professed agent as such is good
consideration for tho promise."
•■'3
I ■
150
LKADINO t SKS SIMPLIFIKD.
f
PAR TXEliSlIIP LIABILITY.
WAKill V. CARVER.
[1' II. Mliick. •-';!."); 1 Smith's Ld. Cp.s. itCS.]
* • .
.•V
m
In Fchniarv, 171>n. Enisiniis Carver and William
Carver, ship-aircnts, of Southampton, of the one i)art,
and Archibald (l-icslcr, ship-agent , of Plymouth, of the
other part, entered into a rather wide-awake agreo-
nient for their mutual h.enetit. Rv tiie terms of this
agi'eeinent; Ciiesler was to remove from Plymouth and
settle ut Cowes. There he was to establish a house
on his own aeeoniit, which the Carvers were to jMifr.
Ciiesler, on the other hantl, was to endeavor to per-
suade all llie shi[)-iu.Hti'rs putting into Portsmouth to
emi)loy the Ci'ivers. Arrangements wei'o made for
sharini; in eertaiii proportions the jjrolits of their rc-
speetlve commissions, and the discount on tln^ hills of
tradesmen employed by them in repairing the ships
consigned to them. It was -Uso expressly provided
that neither of th<^ parties to the agi'(>ement shoul-A bo
answeiable for the acts or losses of the other, but each
for hi.'i own. Accordingly, (liesler left Plymouth and
came to Cowes. and in tiie course of carrvin<x on his
iiusiness there he iiu-urred . certain tlebt to the plain-
till' in this action, who now sought to inako the Car-
■ i-s liable on the ground that the aiireement made them
pa;; ners with (liesler and i'(>s})onsible for liis debt.s.
It was held, in spite y)( the clause providing that
mi ^ amus M—
PRIXCIPAL AXO A(}ENT.
151
each should ho responsible for his own losses, th:it the
agreement did niuke the Ctirvers partners, for: —
1. lie who takes the proHts of a partnership must
of necessity he made liable for the losses.
(The student, however, must look at the next case
before taking this [)roposition for gos[)el.)
2. lie who hmds his name to a partnership becomes,
as against all the rest of the worhl, a partner.
•-§
COX V. IIICK3IAN.
[S II. L. Cas. '-'(IS.]
Messrs. Smitii iSc Co., ir* merchants, becoming in-
solvent, a deed of arrangement was executed between
them and their creditors. By this deed Smith & Co.
assigned all their pro[)erty to five trustees to carry on
the business under the name of the Stantoi* Iron Con?-
pany. The trustees were to manage the works as they
thouidit fit, and to execute all contracts and instru-
ments in carrying on the business. Amongst the
creditors were two j^entlemen who afterwards bios-
somed into the defendants in this action. They sub-
scribed .iud executed the deed, and were both named
as trustees. One of them never acted at all ; the
other acted for six weeks and then resigned. The
other trustees, however, did JU't, and did the best Hiey
could for the business. In tlie carrving on of the
business the plaintitf supplied the comi)any with a
quantity of iron-ore, and one of the trustees accepted
l'>2
ii:\i)i.\(; (Asis si.Mi'i.ii'iiM).
liills of oxcliimir*' ill til*' name of the cotnpMiiy lor \\\o
j)i'ici' of it .
Tlio (luc'stioii was wlictluT flic tru.stccs wci'c niifcMits
for liio (Icft'iKlaiils to accept tin; Mils, and it was hch]
tluit tlicy were )i<)f ; on tlio <rroiiii(l that the persons for
whose heiietit the business was carrieil on were not the
crcditoi's, hut Messrs. Smith & Co. The real test of
))arlnership iialtility, the judii'es said, was iiof paitici-
patioii in the profits, hut whether ihe trade was eai'ried
on 1)V persons uetinii' -'i-^ th* fi/rnfs of the p(>rsoiis
souu'ht to he made liahle.'
mfi
' Persons in;iy jx- p;irtni'rs iis rcijiinls tlio worlil at lariit;, al-
tluMifjh tlii-y are not partners as bctwiHii thonisclves. If a man
holds himself out as a partner he is Hal)le to a person wlio, for that
reason, ;iivi's credit to the (Irni. If it were not so. there would be
even more imposition in l)nsiness transactions than tliero already
Is. Tlie law does not prescribe any particular acts which shall con-
stitute a'Mioldiui: out: " evidence m.iy ;;e ;;iveu of auythintr tlie
defendant has done wlil'h would induce others lo bilicNc iliat lie
WHS a partner, such acts havlnij; the effect of an estoppel by con-
duct. As to the other point of those cases, it was for a loiiij time
thoujiht that if it could be proved that the defendant sliand the
projil.i hi' was thereby proved to be a partner. The effect of the
case of Cox v. Ilicliman is to destroy tins doctrine; and the l.iw
now is that, tl.oULih connnuuity in the profits is strnn;/ evidence of
partnershiii, it is not r(<iirh(sii;' evidence. There must always be uu
exainiuutiou into the intention ot the contracting parties.
XHGOTIAIJLK rAPKIt
153
X. — Xkuotiaiuj: Papkh
rUi: REQUISITES OF A PnOMISSORY NOTE.
ViVAA.,\lY V. IIE^IMlNCaVAY,
[i;nn. ii ; \V\
.1. f;!-. Hills .v; Noti-s 1(1.]
II
oinnrmu'wiiv simmI !>;i\i(l Kdlcv oii the I'ollowiiis;
iiisliiiiiiciit
" Castletov, April, 27. ISU.
" Due lli'lil"\' I). K('llf\', >.");> wiici; he is ( went \-()il0
yciiirs old, wiili iiit('i'«'st.
" l).Mii> Kklf^ky.
Wliicli Ilciirv I). Ki'll(>v li:ul .'issjfiicd to him hv a
n
indoi'sc'iiu'iit in writing. Tlu' duloiulaiil [)U':uk'd tiiat
tl
lis was not a proiiiissory note
\v
hid
1 was a Aorv vi
tal
question, hccauso, if it wci'c not a i)!'otnissor\'" note
it was not as.siuMiahlc l>y indor. '-nKMit, and lli'inminir-
way had no ni:;lit to I»rinii an action on it in his own
name. The coiiit held the plea <rood, on the irround
that to constitr.te a promissory note the money must
he payalile certainly, and not (U'[)endent on any cou-
linjifency either as to event, the fund outof v.hieli pay-
ment is to I)e made, or the parties by or to M'hom
payment is to be made, A promise to pay a sum of
154
LEAOIXO CASrS SIMPLIFIED.
money Avhen a particular })t'rs()n is married is not a
jiroinissory note — he may never be married. 80 of a
liromise to pay when a particular ship returns from
soa — it may never return. Here tlio payment was to
be made when Henry attained his majority, but that
was an event that mi<i:ht never hajjpen ; it was not cer-
tain, but simply contingent on his living that long.
The fact that he did live till he was twenty-one made
no difference. It was not a good promissory note
when made, and it could not become so ex post facto.
If the event was sure to take place it would not have
mattei'ed how long a time eiapsed. Therefore, if the
instrument had been paysible at Henry's death, it
would have l)een a good [)romiHsory note, for if there
is one thing that is certain it is death.
TirLE TO BANK NOTES,
MILLEJl v. KACE.
[I Burr. 451'; 1 HiuithN Ld. Cas. 507.]
On a dark December niu'ht about the middle of the
last century, the mail from London to the west was
attacked b}- highwaymen. In reply to the usual
question, most of the passengers meekly remarked
that, on the whole, tliey valued their lives more than
their money, and the knights of the road got away
.■-;f;>:-.s:ii£&ftaaff(*fcMir:.]*>*K^'',:v ./ ,i* ■;
,jii'jil^»jttVl!ftu*t:CT-.^tfc-jv»cw%'K«-7..r.«>j<itlii«-fcAi^^.iK
NEOOTIAHLE T'APKIi.
155
with a ftiir l)!ii;fiil. Ani()nij:st other th'mirs tak(Mi was
a, hank-iioto tor £21 10s., which a ]\Ir. Fiiiiicy, of
London, was soiuliiii^ down by tho general [)ost to a
client in Oxfordsliirc. Tho next day the news of the
disaster reached the cars of Mr Finney, who rushed
olf in wild hasten to the ))ank and stoi)i)ed payment of
iho note. Not many days after the plaint itf, who iiad
come hy the note (piite honestly, and had iriven value
for it, presented it at tho haidc ; but Mr, Race, one of
lh(! bank clerks, not only refused to cash it, but (!ven
to hand it ])ack. Miller, therefore, sued him. When
the case came before the Court of King's Bench, the
defendant's counsel made such an ing(Miious argument
that, though Chief Justice Mansfikli; had. no doubt
tliat ^Ir. Miller ought to recovei-, he thought it proper
to look into lIu! case, and deferred rendering judgment
for a week. But at the end of the week the ingenious
lawyer was llooi'cd. The court was unanimously of
opinion that [)ro[)erty in a l)ank-not(^ i)asscs like cash
by delivery, and a party taking one homi Jide and for
value, is ontitletl to retain it as against a person from
whom it has been stolen.
WHO IS A '' IIOLDEH FOR VALUE/'
SWIFT V. TYSON.
[l(i IVt. I ; Hiji. 1.(1. ('as. Bills & NoU'S, 48G.]
Swit't held Norton & Keith's iu)te. They on tho
othc) hand had a bill of exchange accepted by Tyson,
A
15(1
LEADIxa f'ASi:s SIMI'LIKIKI).
in
jiiid witli tliis tlu'V paid their iioli; to Swift. It is
tloubtl'ul if Tyson would ever iiavc Iiccii compcllod to
Diiv tlu! ainoiiiil of this hill to Norton & Ki'ith, for thcv
Iiad indiu'i'd hit.) to accept it hy a lot of false; ;uid
fraiididcnt rcprcscntatioiiN ahoiit some lands in Maine,
to which they had no title; Init Ssvift knew nothinir
ahont these frauds, and he took the hill of cxchanire
before it was due. But this did not console Tyson,
who when Swift sued him on it, pleaded the i'ase;ditv
of Norton it Keith. Uul the Supreme C'ouit of the
United Slates de(udcd the ease for the i)laintiir,
"There is no doubt," said .ludii'c Srouv, in one ofth(>
ablest judgments of that great jurist, "that a hoitti
fide holder of a negotiable instiaunent for a valuable
consideration without any notice of facts which ini-
})each its validity as Ix'tween the antecedent i)ariies,
if he takes it under an indorsement made before tlic
same becomes due, liohN the title unall'ecte(l by these
facts and may recover thereon, although as between
the antecedent [)arties tli<> transaction may be without
any legal validity. This is :i doctiMue so long and so
well established, and so essential to the secui'ity of ne-
gotiaI)le paper that it is luiil uj) among the t'undaiucn-
tals of the law, and reipiiics no authority or reasoning
to be now brought in its suppoi't." The (picstioii
then was whether a j)re-e.\istiug <lel>t was a sufficient
consideration to shut out the e«piitics of tin; original
parties uiKh'r this rule. TIk; coui-t ludd that it was,
und that Swift's title was noi aHectccl by wjjat had
taken place between Tvson and Norton &, Keitii.'
It is necessary to say lu-re that tlie question diciiled in this
case is one of tliose (luestions iipoii wliicii entirely contniiy views
SS,r*«Sfc;..
•'-^ft'^^^itH^j v„jKr«ajLi£!
NEOOTIABLK rAl'KIt.
1')?
ynriCT'J OF DTsnOXOIi, WHEN XECESSARY.
IU(<lvi:iM>IKi: V. HOI.l.MAX.
[1 Term Kcp. K).")-, L' Smitli's \a\. Cii- 'A.]
TIic Itottoiii facls of this cuso, (the narrative of which
is too coinplicatiMl to he worth (li'tailiiiu ) iirc as I'ol-
h)\vs: SpiMuhast heiiig hard up toi" luoiirv, and kiiow-
inuf the weak ui^od-nat lire ot" his tViciid Liu'lithoad,
a>ks him 1) .".cccpt a hill oi\xfliaiii:'(> for him, assiiniij^
him thai ho will never l>i^ called on to pay it, and
that it is re;ii'y only a formality. Li^ihthead consents,
and though ho iii'ls no consi(l(>ration whatever for it,
acce[)ts a hill drawn on him hy S[». iidfast. The bill
finally yets into tlu; hands of 'I'lirift man as holder, and
he presents it to Lighthead for payment, l^^iiihthead,
of cours(>, dishonors the hill, and uses strouLT lanuuaLi'o.
Such l)i'ing the stuto of the parties, Dickcrdikc v. BoU-
himi decides that Thrittman, the holder, can sue
Spendfast, the drawer, without havinji' previously
'liven hin\ notice that Lighthead, tlui acce[)tor, has
dishonored the bill, the reason beinii" that the drawer
never had any ellects in the hands of the drawee, and
ther(>f;)re couJtl not Josr a)i>/f///')ii/ hi/ iiofice not being
§
are liold l)y differeiii courts. In Now York aiul ;i fow Slates whicli
follow tlio New York rule, Swift v Tysou is not rciiarded us correct
1 iw on wliiit constitutes a hoI(lin;i for value, while in the Federal
courts, a. 1(1 in most of the State courts, the doctrine of Swift v.
Tyson is adiruied and followed. See Big. Ld. C'as. Bills & Notes,
4!*", lit SCq.
158
LEA1)IX(} CAfSK.S S1M''LIFIE1>.
given. Ji!m. •' The l;i\v requires notieo to bo gl^en,"
Siiid Bri.LKK, J., " for this reason, viz. : beeause it is
I)rcsunie(l tliat the bill is drawn on account ol" tlie
drawee's havinir eU'ects of the drawer in Iiis hands;
and if the latter has notice that the bill is not ac-
cepted or not paid, lie may withdraw them immedi-
ately. But if he have no ell'ects in the other's luiuds
then ho cannot be injured for want of notice."
Bickerdil-e v. BoUnnin is still riM'oirnized both in
America and Kniilan'! as the leadinuj case on tliis sub-
ject. Later adjudications, however, without attenii)tiiii>-
to overrule it, do not make the right to notice de[)end
upon the fact that the drawee had at the niatui'hy of
the bill, funds in his hands of the drawei", ade.juatc to
its payment. On the contrary the criterion is : had
the drawer reasoiuthle grounds to expect that the bill
would be honored ? ^
UNAUTHORIZED ALTEllATIOXS VITIATE THE
INSTliUMEXT.
MASTER V. MILLER.
[4 '':'c'rin Rop.ML'O: l.' H. Hhick. 140: 1 Smith's Ld. Cas. i)35.]
We are not in a position to state whether the Mr.
Miller who was defendant in this action was the same
110.
> See Hopkirk v. Page, 2 Brock. 20; Big. Ld.Cas. Bill & Notes,
\
NEGOTIABLK PAl'EK.
yj
Mr. Miller who took the bjiiik-note from the robl)or,
:iiul had a pass!i<;o of arms with Mr. liaoo, of the bank of
England. If so, ho is oiio of Iho most fortunate liti-
gants of whom there is any record. In the former
case, it will be rememb(M-ed, ho was a plaintiff, suing
on u stolen bank-note. lie now appears in the hum-
bler ca[)aeity of delendant, having accepted a l)ill of
exchange, and resisting [)aym(!nt, on the ground that
it has been altered since acce[)tance. It isn't tiie same
bill, ho sjivs, and ho won't have anvthini'- to do with it.
Tho history of tho transaction is this. On March
2(), 17.SH, Pc(d & Co., of Manchester, drew a bill for
£1,000 on Miller, payable three months after date to
Wilkinson & Cooke. This bill they delivered to Wil-
kinson & Cooke, and Miller afl'.-rwards at^ce^jted it.
Wilkinson & Cooke then imlorsed it for value to the
plaiutitf. I)Ut, befoVe doing so, they quietly made one
or two little alterations, with the object of im[)roving
the document. March 2(!th, tlu-y changed into March
20th ; and they stuck June 2ord at tho top to indicate
that the bill would become due on that day. Tliese
alterations, being to accelerate [)aynient and unauthor-
ized, were held to vitiate the instrument. " When it is
admitted," said Chief Justice P^yui:, -' that tho altera-
tion of a deed would vitiate it, the point seems to me
to be concluded. * * * jf courts of justi"e were
not to insist on bills being strictly and faithfully ke[)t,
alterations in them highly dangerous might take i)lace,
such as the addition of a cipher in a l)ili for £100, by
which the sum miirht l>e chanixed to £1,000, and the
holder having failed in attempting to recover the £1,000,
miirht afterwards take his chance of recoverin<r the
£100 as the hill ori<rinallv stood. But such a proceed-
ing would be intolerable."
'1
ICO
LKADINO rASK>< SI M I'M 11 1.l ) .
XKOLKiEXci: IS' nuAwixa chuck.
voi:\<i V. (iitoTi:
[I I5ii
Mr. Vinmi; \v;i-i ;i r;i>li l>ui lilxTul hu>l);iii<l. \Vh(Mi
lio wt'iil iiw.iv from liomn Ik^ ii^cd 1') l.';ivi' M.-mk checks
siirii('<l for ^^I•s. Voiiiiir to till up nccoi-trmu: lo her iic-
<'('.s>.it U's. ( )ii one ol' llic>i' o('c:i->io:H she r.''|iicst(Ml
lu'i* liiishaiid's clerk lo till out ;i check toi" the simi ot'
.£r)(li Mild 'J>. 'I'Ik' clerk did -o, writiiiLC t hti *• lll't y "
with !i small letter in the middle (d" tlie line, and })ut-
tint.*: the <i;iiircs T)!). '2< a uood di-taiu'o to the riji,ht
of the piintetl 1'. lie sJi(ia(m1 it to her, and sho told
him to o'o and draw the mone\' iVom the hank, lie
went : hilt he stoppi'cl loiiu'" enoiiuh on his way lo in-
sert at, tilt! Ix'ii'iiiniiiLr ol" the line in whiidi tiie wdril
fiCtv
w
as written, the; woi^U •' llnce huiidretl and
and he (h-l'tly jilaced the linnrt; .'{ l)et\v«'en tin; £, and
tlu! no. He liad now a check for £l>.">0 2>, which the
bank paid witliont suspicion, and i^lJOO of which he
j)()ckete(l. Then Mr. Voniii,^ tried to throw tho h)ss on
the hank hiit he (hd not siicccicd, for this wasthejudi;-
eiit ol" the coiiil : •'' A l)anker who pjiys a forged
in
check IS in Li'cncral ooniid to pav the amount airaiii to
liis customer, hecanse h(! p.iys without antliority, Jind
it is his duty to he ac(iuainte(l with his customer's liand-
wntinir.
Yet if it 1)(? tlie fault of the; cus-
tomer that the hanker p;iys moro than ho ouirht, ho
lied
cannot i)ocalle(t on to [)aya;j:aiu.
Hero tho
ir
M:»i(>ri.\Mi.i; i'\ri:i!.
ICl
lil;mu' was ;ill on one side, and Young must >ntrcr for
liis own ncuTiLTcnco." Cliicl' Justice Bkst snj:':j,i'sti'(l
1 wo ujaxiuis wliicli, it' Mi" Young had only known in
tinic, would Iiavo saved hini a good many liundi'cd
iloilai's. I'Mrst, always write your checks well to the
left side : second, never let your wife ha\X' an\thing lo
do with \()ur checdv book.
■§
STOPPAdK IX TUAXSJTU.
LICKnAltKOW V. 31ASOX.
[L'Tcnii Iv'cp. <;:•.; 1 Siiiitirs l.d. Cas. flii.]
'I'he orii:inalor of tliis litiiration was one Freeman,
of liotterdam, who had the iiuihicity to hecomo bank-
rupt and confound tlu^ transactuuis of a groat many
honest [)eo))le. The tlra iinilh persoiue are somewhat
nuuu'i-ous, but the student will probably liiul tlie fol-
lowing account reascMiably clear and correct.
Freeman sent an orch-r to Messrs. Turiugs, of Mid-
dleburg, to shii) a (piautity of corn to Liverpool. This
order Messrs. Turiugs were rash enough to execute ; for
liiey theu ( ousidered Freeman to be, if not " the richest
merchant in Rotterdam," at all events, :i safe and sol-
vent person. On July 22, 17S(), ^Messrs. Tnrings put
the corn on board the ship Endeavour, whereof the
11
M
IMAGE EVALUATION
TEST TARGET (MT-3)
1.0
I.I
Ik
150
1^ IM
1^ IS
20
U&
1.8
IL25 i 1.4 i 1.6
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^
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Photographic
Sciences
Corporation
23 WEST MAIN STREET
WEBSTER, N.Y. 14SS0
(716) 872-4503
1G2
LEADIXG CASES SIMPLIFIED.
ill
.5;:*,
i I
master was a ]Mi\ Holmes. It is the duty of a master
when he sets out on a voyage like this to sign hills of
ladnig, by way of acknowledging that he has got the
goods on board. Holmes signed four of these bills of
lading (usually, it may bo remarked, only three are
signed) ; and of the four, one he pocketed, two were
indorsed in blaidc by Turings & Co. and sent to Free-
m:iu with an invoice of the goods shipped, and the
.;:rth Avas retained by ^lessrs. Turings.
The sound ship. Endeavour, had not set sail very
Jonuf when tidinufs came to the ears of the Turmus that
Freeman had ])oeonie ])ankrupt. Rising to the occa-
sion, they innnediately sent olF the bill of lading that
remained in their custody to Messrs. ^Nlason & Co., of
Liverpool, Avith a special indorsement to deliver the
corn to them for Messrs. Turings' l)enefit. Pursuant
to this special indorsement Mr. noiines, when he ar-
rived at Liveri)()()l, delivered his cargo to the Masons.
In the meantime, however, and bel'ore he became
bankrupt. Freeman had sent his two bills of lading to
Messrs. Lickbarrow dulv neirotiated for a valuat)l(>
consideration. Messrs. Lickbari'ow, therefore, Ave;'v>
anvthini; but i)leased to find that Mason & Co. had ""ot
hold of the corn, and they brought this action to try
and make them give it up. In this they were success-
ful. Judgment Avas given for the plaintiffs, on the
ground that {xhona fide assiu:nment of the bills of lad-
ing defeats the vendor's right to stop in transitu.^
' TIr- Urst rule laid down in tliis case is to tliis effect: —
When a man l)ecoines banlvi-upt his goods"arc divided amongst his
creditors, nobody jietting tlie full amount tiiat is due to him, but
everybody getting a proportion of it. Thus, the person who has
most recently been rash enough to intrust the trader with goods tni
NEGOTIABLE TAPEIl.
163
STATUTE OF LIMITATIONS.
AVHITCOMH V. WHITIXG.
[Dougl. r)52; 1 Smith's Lil. Cas. 703.]
Whiting iiiul Jones niiulo ;i joint {uul several promis-
sory note, which in the course of time ciimo into the
hands of the pliiintill". Eight or ten years after the
clay on which it Avas made, the plaintiff sued Whiting,
who had long aijo forgotten his little undertakini;.
credit is tiie most to ))e pitied, for wliat v\;s yesterday all Ids own,
is to-day part of tlie general fund from wliieli eacli creditor derives
tlie proportion of ins debt. To prevent tins injustice of one man's
goods l)eing used to pay anotlier man's debts, tlie doctrine of stoppage
in trmisitn is nitrodnced. Therefore, altliough tlie vendor has sent
off Ins goods, and parted with the property in them, to the vendee
on a credit sale, he may, nevertheless, on hearing of that gentle-
man's bankruptcy or general inability to pay his debts, stop the
goods and retake possession of them at any time while they are on
their journey to him, and have not come into his actual possession.
The riglit to stop is personal to the vendor or consignor. It cannot,
for example, be exercised by a surety for the price of the goods.
Hut the vendor may, at any time before the transitus has ended,
ratify the act of a stranger who stofis the goods. The great ques-
tion ill most t-toppaijn in trnnnUn cases is, was tlie journey at an end
or not? The goods are on the jonrncn as long as they are in the
hands of the carrier as such; but the carrier may hold them as bailee
for the vendee, as when the latter pays him a rent for warehous-
ing them.
The second rule in this case is, that if, while the goods are in
transitu, the vendee indorses the bill of lading (as Freeman did) to
a person who takes it in the ordinary v, ay of business and in per-
fect good faith, the vendor's right to stop is at an end. Siiirley Ld.
Cas. 8G,
■:3
H
m
«ll
1G4
LEADING CASES SIMPLIFIED.
"Yes," siiid AVhiting, " th:it certainly must be my
si<'-ii!itur«, and, now you come to mentiou it, I do re-
member sometbing about a promissory note. But,
3'ou see, tbe date of tliat note is more tliaii six years
a<n) : so I bave the law on vou." "That's all very
fine, Mr. Whiting," replied the holder with a chuckle,
'• but 3'ou may be interested to learn that Mr. Jones,
the gentleman whose name is with yours on this bit ot"
paper, has paid interest on it within the hist six years ;
and, if I'm not pretty well mistaken, that takes it out
of the statute as against you as well as against him.^'
And so it proved. " Payment by one," said Lord
Mansfield, (,\ J., *' is payment for all, the one acting
virtually as agent for the rest, and in the same manner
an admission by one is an admission by all," " The
defendant," said Willes, J., " has had the. advantage
of the partial payment, and therefore must be bound
by it." In explanation of this last remark it may be
suggested that })rol)ably all the ten years Jones was
punctually paying the interest, so that Whitcond) had
no desire to enforce payment of the [)rinci[)al. Then
Jones suddenly foundered in the ocean of insolvency,
and it became necessary to sec whether the other joint
contractor was any good.
liii
LANDLORD AND TKNANT.
](J5
XT. — LAXDLor.D AXD Texaxt.
PAYIN(r RENT FOR DESTROYED PREMISES.
HALLETT v. WYLIE.
[3 Johus. 44; 3 Am. Dec. 457.]
Mr Hallott loused a hou.sc from Mr. Wylic for the
term of four yoiirs. The lease provided that the rent
should 1)0 paid quarterly, and that the tenant should
pay all taxes aud assessments and keei^ the inside of
the house in irood order. Mr. Hallott took up his
ahode in his now (piarters, and was very well salistiod
until one day in Decembcu-, barely nine months after
he had taken [)ossession, the house was burned down,
and he had to rent another one. The landlord waited
!i year, and then sued I\[r. Ilallett for four quarters'
rent, to which that gentleman replied that ho had paid
his rent promptly as long as the house stood, but he
would be blest if he would i)av rent after that time.
" No house, no rent," was his motto. This certainly
appeared just, but Wylie, who w;;s something of a
Scrooge, went ' ) law about it, and, we regret to say,
was successful. The court gave the tenant their sym-
pathy and the landlord his money.
" This is a hard case upon the defendant," they said.
s
f(
►I*
• * ■ *
' • '••ii' (
1 1 If
■M
I
i
166
ij:ai)I.\(; ('A!>;i:s simi-i-ikied.
*' and if the court eoukl, consistently with settled and
est:il)lishe(l principles, relieve liini against the payment
of the rent in question, \vg should most willingly do it.
But it can not be done without overturning a series of
decisions td which this court is bound to conform.
Wo sit here \jus dare,' not '■Jus facevo."^ Wo think
it may safely be said that there is not Ji ease in the
hooks where the destruction of the demised premises
by fire has been held to excuse tiio tenant from the
payment of the rent on an e> ress covenant ; but in
every case where a del'ence on Jiiat ground has been
attempted, it has failed. The law on this point has,
in one of the late cases in England, been ctmsidered
so fully established that the court would not evon hear
an argument respecting it."
Moral : ^V^hen you sign a lease of a house, don't
forget to htive it provide that, in case the building
is burned down, or rendered uninhabitable, the rent
shall cease to be payable.
NO WARnA:^TY AS TO COXDITTON OF
PREMISES.
CLEVES V. Wir^LOl OHBY.
[7 Hill, s;!.]
The dwelling No. 3. Linden Itow, Brooklyn, was for
rent, and Mr. Cleves, who was hunting for a house,
' "To annoimcc the huv, uotlo manufacture it."
LANDI.OUD AND TENANT.
167
leased it for tivc years jit a 3'oarh'- rent of $300, pay-
al)le (iiiarterly. IIo was in such a Imri'v to get tliein
that he Avas not i)arti('uhir to exaiuiue the premises.
Al'ter tlie lease was signed and he was prepared
to move in, he found tliat it was not Avhat one
would wish for a residence. The house Avas in horri-
l)ly bad re[)air, the cisteru leakcnl, the cellars were filthy
and foul — in fact it Avas not a i)lace to take a 1am-
ily into at all. ]\Ir. Cleves suggested to the hmdlord
that, unless he would repair and clean it u[), ho would
not move in. This tlie landlord refused to do, so
]\Ir. Cleves rented and occui)ied another house. At
the end of thrc^e montlis there came u bill for a quar-
ter's rent of No. 3, Linden Row, Avhich Mi. Cleves,
verv niiturallv, refusetl to i)aA\ Then the case came
into court, and Mr. Cleves' only plea Avas that the
house Avas unlit for occupation. But the court re-
fused to listen to it. They held that tlicie Avas no im-
plied Avarranty on the part of the lessor of a dwelling-
house, that it is fit for habitation. " It is quite
unnecessary," said Beakdslkv, J., " to look at the
connnon-law doctrine as to implied covenants and Avar-
ranties, or its modification by statute. That doctrine
has reference to the title and not to the quality or con-
dition of the property. The maxim caveat emptor (let
the purchaser bcAvare) applies to the transler of all
property, real, personal and mixed, and the purchaser
takes the risk of its quality and condition, unless he
protects himself by an express agreement on the sub-
ject."
3
If; 8
I.KADIN'O CASES i^IMI'LIFlEO .
EXCEPT IT IS A FU UN I SUED HOUSE.
S3TITH V. 3IAKRABLE.
Ill*
illf
: W
[11 Mee. & W. 5.]
Briijrlitoii is a faslilouiiblc Eiiijlish watcrin<>:-i')lacG,
and Sir Thomas ^Nlarrahle, who Avishod to spend tlic
season there with his family, rented a furnished house
of Mr. John Snlitii, ior a eertain term. Tlie student
will note that it was a fav)iis!i''d house he rented.
On the KUh of Se[)teml)er the j\Iarra])le family moved
in. Tiireo days later xMrs. John Smith reeeived the
tbllowini'' l)illet : —
" 5 Rhttxswicic Place, September 19, 1842.
'^ Lady ]Marral)le informs ]\Irs Smith that it is her de-
termination to leave tl'? house in Brunswick Place as
soon as she can take anotiier, paying a week's rent, as
all the l)edrooms occupied but one are so infested with
bu<rs that it is impossible to remain."
Tlio landlord sent a man to drive the bugs out, but
thci-o were too many for him and the family did leave
as threatened. Tliis was Mr. John Smith's action for
tlio rent mider his agreement with Sir Thomas. The
iurv having found that the bnus were the real caiiso of
the moving out, the Court of Exchequer decided that
they did the })roper thing and Mr. John Smith was
defeated. " A man who lets a ready fnrnished
house," said Lord Ahingeii, C. J., " does so under the
implied condition or obligation — call it wdiat you
LAXDLOIM) AND 'I lONANT.
i(;o
will — that tlio house is in a fit state to he iiihal)ited.
Suppose,, iustcad of the particular nuisance which
existed iu this case, the tenant discovered the fact,
urdvUDWii, perhaps, (o the landlord, that* lodgers had
p'/eviouslv quitted the house: in consoqueiicc of having
ascertained that a person had recently died in it of
plague or scarlet fever, would not the hiw imply that
lie ouglit not to stay in it? I entertain no doubt what-
ever on the subject, and think the defendant was fully
justified in leaving these premises as he did ; indeed, I
onlv won(hu' that ho remained so lon'jf, and ijave the
huidlord so much op[)ortunity of remedj'ing the evil," '
EFFECT ON TEXAX2' OF MOUTGAGE BY LAND-
LORD.
KEKCH V. IIAI^I..
[I Douiil. 21 ; 1 Siiiith'.s L;l. Cas. (mI.]
The owner of a warehouse in the city of London,
moitgaged it to ^Ir. Keech, but remained in posses-
sion. Soon afterwards, without savini;: a word to Keecli
on the subject, he leased it for seven years to Hall.
' Tho prliicli)lo of this case was expressly afllrmecl in the late
case of Wilson v. Fincli llatton, 2 Exch. Div. o.W., where the tenant
of a furnished honse was held to he jnstitled in leaving on account
of defective drainage. And see Dutton r. derrlch, t) Cush. 89.
170
LEADINd CASKS SIMI'LIFIKD.
€
Keech was very iiuligiiaiit at this. IIc^ said the mort-
gagor had cxcfedc'd his rights, having no l)usiiu!ss to
do such a thing witlioiit coiisiilling him, and that Hall
was no l)etter than a trespasser, and could he ejeetod
without notie»\ And the Judges coincicU'd with his
view of tlie matter. At lirst sight the tendcr-h(!arted
student mav think this a little rough on Hall ; hut it is
not really so ; lor it" the man had taken the trouble to
make proper incpiiry he would soon have discovered
that the person he was dealing with was only a mort-
gagor, and therefore that it would he a risky thing to
take a lease from him.
II"''
I Sv "
i I
MOSS V. GAL1.I3IOUE.
[1 Doiigl. 27i); 1 Smith's Ld. Cas. (iS!».]
Mr. Harrison hegan the year 1772 by letting a house
to IMoss for twenty y(Mrs at the rent of £40 a year.
Times were bad with Mr. Harrison, and in jNIav of the
same year he mortgaged the property to a Mrs. Galli-
moro, a nice old hidy, who wanted eligil)le security
for the little fortune which her late husband had left
her. Moss was not in the least aftected by this mort-
gage of the leversion. He went on quietly living in
the house, and paid Harrison his rent pretty regularly
up to November, 1778, when he was £28 behindhand.
At that time, Harrison, having sunk deeper and
deeper into the mire, became bankrupt, being at the
LANDLOUD AND TENANT.
171
•t-
to
ill
Ml
is
(1
is
()
a
fimo iiulebtetl to ^Irs. Galliinoro for interest on the
mortffago in u .sum gre:iter tlitin £28. Mrs. Galliinore
iTiive Moss notice of her being mortgagee ,and told him
to pay to her the £28 which ho unciuestionably owed
to somebody. Moss showed no disposition to yield to
this demand, nnd finally the old huly made a raid U[)on
his chairs, tables, grandfather's clocks, etc. This dis-
traint Moss considered a tresj)ass, and bronght this
action accordinijlv. It was held, however, that the
worthy Mrs, Gallimore was (jnite justified in distrain-
in"", for a morti^aijee, after giving notice of the mort-
gage to a tenant in possession under a lease prior to
the mortgage, is entitled to the rent in arrear at the
time of the notice as well as to what accrues after-
wards, and he may distrain for it after such notice.
:3
USAGES AND CUSTOMS.
WIGGLES WORTH v. DALLISOX.
[Dou;,'l. 201; 1 Smith's Ld. Cas. 1)00; Lawsoii, Us, & C. 1(50.]
Wiiiarlesworth was, as his bucolic name alone might
show, a farmer. By lease dated March 2, 1753, one of
the Dallison family let him have a field in Lincolnshire
for twenty-one j^ears. In the last year of his tenancy,
though he knew that he had to give up the land almost
17 2
I,K\I>I\(} (WSKS MMI'MI'IKI).
li
iininediiitciv, lio sowed his Held wi'Ji coi'ii. In doiiii;
wli.'it iniirlit seem iil lirst siirlit ti i:is!i mikI iMipi-ovidcnt
!U't, Mr. Wiijglosworlh w:i.s rclyiii;^ on a certain local
cnstoin, wliicli entitled an ontjioinj^ tonanl of lan<ls to
his way-going crop, that is, to the corn left standing
and growing at the expii-ation ot"(ho lease, nallison's
answer to this claim was that, if any such custom
existed at all, it had no a[)olication to tlr; pi-esent casi^
■where tiie terms between landlord and temmt had been
carefully drawn up in a l(>aso hy deed, and no mention
made therein of any custom. TlKM-oiirt, however, de-
cided in favor of tin; custom, Ijord Mansfimm) remark-
ingthat, while it was just and roasonaUlo and for the de-
bcnetit of agriculture tliJt ho who sows sliall reaj), it
did not alter or conti'adict tho agreement in the h'aso,
but only sui)cradded a I'ight.
LEASES FOR MORE Til AX THREE YEARSA
m
KIGGE V. IJELL.
[5 Term Kf|'- t'h - Sinilh's Ld. Cas. 177. J
Bv parol merelv, lliiiire let a farm in Yorkshire to
' Our friend, the Statute of Francis, eoines to tlie front again to
regulate deal in;is inland as well as in "goods, Avares, and nierelian-
dise." By the first section of that important law, it was enaete^l
that (with the exception of leases for a term not exceeding three
years) all leases of lands, tenements and hereditaments not put in
writing and signed by tho parties or their agents, should have only
the lorco and effect of leases at will.
LANDLOItl) AM) TKNANT.
178
Hell for soveii years, iuul Boll ciitorcd jiiid paid ront.
IJut tlio tonant tlid not j.tivo satij^faciion, and liiuijo do-
Icnuiiiod to in't rid of liiiii. Viv the tonus of tlio
airroiuiuMil IV-Jl was to jjfo nut at C!!andloinas ; hut
IJigrro'.s view was, as tho leas;', Ixmiu; for inoro than
lliroo years, and yet iu)t in wiitiii^ii", as tli*^ Slatulo of
Fi-iiiids recjuiroij, ofjorato ' iiicroly as a tenancy at
will, ho conhl make tho man (j 'it wlien ho i)h'ased,
and Avas not l)(>nnd by tho tonus they liad agixvd on.
In tliis view he lonnd himself mist al;en, for it was held,
that " tlioni;h tho agreement ho void hy the Statute of
Frauds as to tho ihirat/on of i\w lease, it Diu.'it iTt/uJa(e
the terms on wliich the tcndunj shU^'ikIh l\i olJici- rf'spects,
as to tho rent, tho time of tho year when tho tenant is
to quit," etc.
CLAY lOX V. IJI.AKEY.
[8 Torni Krp.li; '2 Smitirs Ld. ('as. Iso.]
Also l)y parol merely, Mr. dayton let Blakey some
land for twentv-one years, and l^lnkey entered and
paid i"ent. Two or three years afterwards his land-
lord gave him notice to quit, and, as lie treated such
notice with supreme eontemi)t, sued him for double
ront for holding over. To this claim Blakey raised
the somewhat cool defence that (I)y virtue of sect. 1 of
the Statute of Frauds, which directs that any lease for
more than three years, not reduced into writing, shall
4
i^
174
L/ \DIN(} CASES SI.MPLIFIKD.
operate only as a tenancy at will) be was only a ten-
ant at will, and onght to have been so described in the
plaintiff'^ declaration. It was held, however, that
>/Blakey was not a tenant at will, but a yearly tenant,
and therefore the plaintiff's pleading was good enough
to hit him.
This decision seems, at first siffht, rather extraordin-
ary. The Statute of Frauds distinctly says, that all
leases by parol for more than three years, shall bo ten-
ancies at Avill only. The decision intervenes and says :
*'No, they shall bo yearly tenancies," thus puttingthe
tenant in abettor position than the statute left hiiu in.
The accepted explanation is that tho statute's inten-
tion was that the estate should be an estate at will to
begin icith, but that when once created, it should be
liable, like any other estate at avIU, to be changed into
a tenancy from year to year by payment of rent, or
anything showing an intention to create a yearly teu-
ancy. But if there were uo circumstances showing
such intention, the estate would remain an estate at
will.
AGIUCULTUUAL FIXTURES.
Ill
ET^W ES V. MAWE.
[3 East, 38; 2 Smith's Ltl.Cas. 228.]
ToAvard the close of the last century, Elwes let a
farm at Bigby in Lincolnshire to INIawe for twenty-one
LANDLORD AND TKNANT.
175
11-
10
It
t,
h
years ; and during his tenancy Mawe conceived and
carried out various improvements for the more profita-
ble occupation of the land. He built a beast-house, a
carpenter's-house, and a pigeon-house, among other
things. By-and-by the twenty-one years came to an
cPid, and the time came for 3,Li\ve to go. A few daj's
before leaving, he set his laborers to work to pull down
the l)east-house, and the carpenter's-house, and the
pigoou-house and Avhatever else he had erected, and
carted them all away, leaving the premises in just the
sauie nude condition they were when he entered. When
Ehves heard of this he was very angry. He said
Mawe had no right whatever to take away fixtures, it
was ilat burglary and so on, and finally he brought an
action for waste. There was no doubt that by the old
common law whatever a lessee annexed to the freehold
during his term, unless it was a trade fixture, became
the landlord's when" he left, but ^Nlawe's counsel
argued that, considering the cai)ital farming required
uow-a-daA's, and the elaborate implements employed
in the cultivation of the land, airriculture was overv bit
as nmch a trade as clock-making or iron-monirerinir.
Moreover, they produced authorities which showed
that hot-houses, posts, sheds, colliery-engines, and the
like, had in various cases been held to be rem()val)le
by tenants as being trade erections ; and they defied
the plaintirt'to show the difference between such things
and the tilings the defendant had set up. All this was
very plausible, but the judges came to the conclusion
that Mawe had no riiilit to remove his erections.
They said it would be a " dangerous hmovation " to
cnll agriculti"''e a trade, and that the hot-houses and
i7(;
LKADIN(! CASKS SIMl'I.lI'IKI).
a
the other erections the deleiidaiit made so nuieh of,
were all more or less connected wilh trade.
An aiionyinous modern poet has, iu ijlowinix liexa-
meters, described the great trial wherein : —
Elwes, the shrewd, was plaintiff, and Mawo, tlie thrifty, defendant,
Muwo was lessee from Elwes of hauls in tlie connty of Lincoln,
Messuage, ont-houses, stables and barn, in the jjarish of Uigby;
Mavve, the thrifty, looked round him and scanned those premises
wisely,
Full six ycmrs he scanned them, beholding the farm's occupation
'Minislied in nse and wortli for want of convenient buildin'^s :
Therefore he laid to his hand, and setup those convenient buildings.
All at his own expense, a carpenter's-shop and a beast-house,
Houses of fuel and carts, and a pump-house, of brick and mortar,
Founded fast in the ground, and tiled, and of brick were the pillars.
So he possessed his farm, and I'ejoiced in his useful buildiiigs,
He and all men and all beasts of the field in the parish of IJigby.
Time, which men count by moons, but the gods by terms and vaca-
tions,
Stood not nor halted the while, and the lease drew nigh to its
ending.
Therefore, did ^Nlawc, the thrifty, bespeak his own heart and take
counsel.
This way and that revolving the cost and the gain, and the
chances
„. Weighing, and thus at the last to himself did his heart make
answer :
"Lo, now, 1 leave these lands, and shall be to this farm as a
stranger ;
Soothly it little shall profit me then if the houses I builded
All at mine own expense, the carpenter's-shop and the beast-house.
Houses of fuel and carts, and the pump-house, of brick and mortar,
Joy to all men and all beasts of the field in t)ie parish of Uigby,
Stand t!iere after my time, and be left a possesion to Klwes :
Nay, but I surely will move their foundations, digging around
them,
Raze their walls and their stuff, the goodly liricks and the mortar,
Keep for a gain to myself and leave the land as I found it."
So then in all things he did in such wise as his heart had coun-
selled.
I, A
ft-
Ilii
LANDLORD AND TENANT.
177
Razed those walls, and moved the foundations, diu^;inm around
them,
Carted away the stuff for himself, the bricks and the mortar.
Elwes, tlie shrewd, sat aloft and beheld from). a height of rever-
sion
These things wrought, and, beholding, his anger was kindled within
him.
Anger that moved him to deeds of raiglit and to Lincoln assizes.
Tliere he declared against Mawe for his injured estate in reversion,
Claiming the buildings his own, their destruction a waste and a
trespass.
Great was the case and the point too grave for Lincoln assizes;
After a verdict for Elwes, the case was reserved for the full court.
There where the king's own pleas were before his juscices holden,
Counsel for Elwes and Mawe stood forth and strove with examples.
Showing what things in old time were esteemed ingrown to the
freehold.
Rooted past lawful removal, what kept their movable nature,
Much they del)ated of wainscot and window, of furnace and oven,
Vats of the dyer and cider-mills and boilers and salt pans;
Also, not least, a new thing, lire-engine, a blessing to coal mines.
Twice in two terms tliey strove and the court considered its J Ig-
nient.
Judgment which afterwards, well advised, the chief justice de-
livered.
Stated the case and the (luestion and spoke their considered
opmion;
Xo right had the defendant, they held, to remove these buildings,
Wi>ely he showed how tlie general rule bids cleave to the freehold
Things by the tenant once llxed, and explained the divers exceptions
Suffered m f.ivor of trade, the furnace, the vats, and the boilers,
Also tlie new fire-engines, the cider- m' 'Is and tlie salt-pans;
Ever in favor (.i trade such cxcepticns, no mention of farming;
Further to stretcli the exception to mere agricultural buildings,
Not for a certain trade, were great and rash innovation.
Wherefore IClwes, the shrewd, maintained his cause and his verdict,
Had great worsliip of a!l men there, and wont homeward rejoicing,
Bearing tiie postea, goodly-engrossed, the prize of the battle.'
5s
' Leading Uaces Done hito Englisli. IJy an Appreutico of Linoohi's Iniu
Loudon, ISTiJ.
.13
s'!
178
LEADING CA8i:S SDIPLIFIED.
cove:s-ants that '• uvn with the LAXU/'
ifl
€
• ' f
II
SPEXCEirS CASK.
[5 Coke, n;: 1 Smith's Ld. Ciis. llC.]
In the days of Queen Eliz:il)cth there liv^cd a gentle-
man named Spencer, who, wise in his generation,
married a woman with mon<'y. Tiius erected into a
huided proi)rietor, he k't a house and grounds lo a
nieniher of the great fan.ily of Smitli for a term of
twenty-one years, and in the indenture Smitli coven-
anted to l)i:ihl a l)riek wall on the huids let to him.
Before very long ]Mr. Smitli got tired of his residence,
and assigned the demised premises to a JNIr. Jones
without having made the least atteini)t at l)uildmg the
brick wall. But Jones could not live there either,
and he, in his turn, passed on the [)lace to Clark,
^leanwhile nobody had built tiie wall, and S[)encer
called on Clark to do it. " I'll see you — ," replied
Clark, in the most forc:!)le Saxon of the [)eriod ; "I've
nothing to do with it; I n.ver undertook to huild any
brick walls." " "Well, l)Ul,*" said S[)encer, "Smith
did; and you stand in his shoes.** Argument, how-
ever, was useless, and Si)encer went to hiw.
The judges had (luite " a day" over this brick wall.
*'And, after many arguments at the bar, tlui case was
excellently argued and debated by the justices at the
bench, * * * .md many diU'crences were taken
and agreed concerning express covenants and cove-
LANDLORD AND TENANT.
179
nauts in law, and which of them wonlcl rnn with the
land, and which of them are collateral and do not 2,0
Avitli the land, and where the assiirneo shall bo bound
without namini^ him, and where not ; and where he
shall not be bound, although he be expressly named,
and where not." Tliev decided in the end that Clark
was 7iot bound to build the Avail, ISniith not having
covenanted for his assigns, hni only for ht'nisf'Jf as to a
subject-matter not in existence at the time of the
covenant, and they laid <lown the law on this subject
very clearlv to this effect : —
A covenant " runs with the land " when either the
liability to perform it, or the right to take advantage
of it, passes to the assignee of the land. Some cove-
nants run with the land, some do not, thus: —
1. Sii[)[)()se the lessee wlio mak(>s the covenant
omits all mention of his assigns, and the deed s[)eaks
only of himsejl". In that event —
a. If the covenant has to do with KonietJiliig not in
existence at the time the lease is made the assignee is
not bound. This was precisely Spencer's case; tlie
bi'ick wall was '• not in existence at the time tiie lease
was made,"' and has [)robably not been built yet.
h. But if the cov(Miant has to do something whicli As*
in existence at the time the lease is made, and is ])(irt
of tlie demised lands, then the assignee is bound. If,
f(>rexaini)U', Sinitli had covenanted to rei)air the house
during the term, Clark would have been liable to [)vv-
forni that covenant. The house Avas in existence at
the time the lease Avas made, and it Avas of course part
of the demised lands.
2. Now sup[)ose the lessee Avho makes the covenant
covenants for his assigns as Avell as for himself.
'5
3
il
it*-'!'
':;}■'■ I'
180
LKAUIXG CASKS SIMPLIFIKI).
P.5 >.
C'
«. The assigiioo is of coui-se liiihlc in case b of 1.
A niiltl oxorciso of a fortiori reasoning will show that
this is so. If an assignee is 1)oimkI when he is not
named, mueh more is he bound when he is named.
b. But the assignee is also bound in ease a of 1,
jarovided that what is to l)e done is to l)e done on the
demised i)reinises. Clark, for instance, would have
had to build the wall if Smith had covenanted for his
assigns.
c. The assiirnee is not liable wdien the lessee's
covenant is colhiteral to the lands dr.nised. If the
lessee covenanted to build a crematory in the next
county, very well, let him do it, there is no great harm
in a cremator^^ But such a covenant Avould uot bind
his assigns even if the lease said so, for it would have
iiothiui]: to do with the land demised.
WAIVER OF COXDITIOX IX LE ' ■" E
DU3IPOU'S CASE.
[3 Coke, 11!); 1 Smith's Ld. Cas. 85.]
In the tenth year of the reign of Queen Elizul)eth
the college of Cor[)us Christi, Oxford, made a lease
for years of certain land to a ]Mr. Bolde, exacting from
him a covenant that he would not alien the property
LANDLOUU AND TKXANT.
181
to iinjbody else without the eolleue's consent. Three
years aftorwardsj the collei>e, by deed, nave him
permission to alien to anybody ho pleased, and
soon afterwards liolde availed himself of this permis-
sion and assigned tin; term to one Tubb. Tubb, after
a brief enjoyment of this world's goods, made his
will devising the lands to his son, and went, over to the
majority. The son entered, and also died, but in-
testate, and administration was granted to a person
who assigned the term to the defendant Symms.
Thereupon the v tath ()f the i)resident and scholars of
the college of Coipus Christi, in the University of Ox-
foi'd, was kindled. Bolde had covenanted with them
not to assign without leave, and such a covenant, they
said, should have been observed by whoever held the
lands. Therefore, they entered for the broken condi-
tion, and leased to Dumpor for twenty-one years.
Dumpor entered, l>ut Symms re-entered, and for doing
so Dumpor now brought this action of trespass against
him, the college spectator of the tempest from the safe
shore. Duni[)()r did not succeed : the case was de-
cided against him on the ground, that " if the lessors
dispense with one alienation, they thereby dispense
with all alienations after."
" ' Duuipor's case ' always struck me as extraordi-
nary," said Lord Eldox in 1807, " but," he added
rather regretfully, " it is the law of the land." ^ " The
profession have always wondered at Dumpor's case,"
said Chief Justice Mvxstikld in 1812, " but it has
been law so many centuries that v, o cannot now re-
verse it." ■ Nevertheless, it remained the law of Eng-
1
m
' Brir.ir.iv.'ll r. Macphcrsou, 14 Ves. 173.
•^ Doe V. Bliss, 4 Tiiuut. 7;3().
fmm
^mm
■I '5
'"i
182
I-EAi)iN(f CASKS SI.All'LlI' IKD.
land until 18(10, when Piirliamcnt knocked it on the
head by enacting that " every such licuMiso should,
unless otiierwiso expressed, extend oidy to the permis-
sion actualh' <>iven." Duin[)or's case is not, however,
to be neglected l)y the American student, as it has
been recognized and followed in tliis country in many
subsequent cases early and late.^
GOODS PRIVILEGED FROM DISTRESS
RENT.
FOR
SIMPSOX V. HARTOPP.
[Willes, 512; 1 Smith's Ld. Cas. 5l'7.]
John Armstrong was a stocking-weaver, and rented
a small cottage of the defendant IIartoi)p. Early in
1741 ho hired a stocking-frame from the plaintilf Simp-
son, at so much a week, for the purposes of his trade.
About the end of the year, as tenants will do, ho got
behindhand with liis rent, and Flartopp, as landlords
will do, distrained on him. There was not much for
the bailiffs when they came ; indeed, so little that
there was not enough to satisfy the rent in arrear
without carrying off Simpson's stocking-frame. This
was done, although " the said John Armstrong's ap-
1 Sue Taylor's L. & T., sect. 28(1; notes to 1 Smith's Lcl. Cas. 88.
LANDLORD AND TKNANT.
183
pi'onti('(? \v;i8 then weaving ii stocking i,.i the said
fViune." Wiien he heard of this, the anger of Simp-
son was kindled, and he brought an action of trover
for the stocking-frame, and succeeded in getting it
restored to him ; for a hindh)rd has no 1)usiness to dis-
train on what is actuaJhj in use at the time.
'^'he general rule is, that ail personal chattels found
on the premises, whether the goods of the tenant or
somebody else, can bo distrained for rent. Simpson v.
Hartopp introduces us to the exceptions : —
I. Some things are ahuolutely privileged from dis-
tress ; under no circumstances can they be taken.
Such things are —
1. Things in the personal use of a man (because
the liiw does not wish to encourage breaches of the
peace), as the hatchet with which a man is working,
the clothes he is wearinsr, oi" the horse he is ridinjr.
2. Fixtures (because damage would be done to the
freehold in tearing them away).
3. Thiniis sent to the tenant to be wrought on in
the way of his calling ; this exemption is for the sake
of trade ; no one would like his boots to be at the
mercy of his cobl)lor''s landlord whenever they required
mending. So a horse sent to a farrier's shop cannot
be distrained for the rent of the shop, nor yarn sent to
a Avoaver's, nor cloth to a tailor's,^ nor sacks of corn
sent to a mill to be ground, or a market to be sold.
4. Goods delivered to a common carrier or other
person to be conveyed for hire.
5. Perishable goods (l^ecause such articles cannot
be restored in statu quo ante distraint ; they soon be-
s
' Hoskius V. Paul, 4 Halst. 110.
184
LK.\I)IX(} CASKS SIMl'LIFIKI).
I
<
come corrupt and iiiu'iiliihlc) ; ami tlu'rcfori! if I ani
behind in inv rent, niv landlord cannot carry oil' mv
bread, and I'ruil, and niilk.^
H. Wild animals {fenv, nattwoiy as the law-books call
them) ; because no one has any valuable [)roperty in
them. Dogs were once considered fcnc naluv(i>, — one
judire went so far as to call them vermin — but thcv
are not now, and when an animal, ntiturally wild, has
discarded its rouu'ii manners and settled down 1)
play the humbler rule of domestic pet — a tame fox oi-
a dancing bear, for instance — it may be distrained as
much as a horse or a donkey.
7. Goods in the custody of the law ; because; already
taken in execution, and because a court will not brook
interference with i)ro[)crty in its custody. -
8. Everything in the houses of ambassadors or other
public ministers of a foreign state is by the law of
nations exempt, being considered out of the jurisdic-
tion of the country.'
II. Certain other things are privileged conditionally.
They can be taken, but only when there arc not suffi-
cient other goods on the premises to satisfy the land-
lord's claim. Such things are —
1. The instrumeuts of a man's trade ; ^^f/.,a work-
man's pickaxe, a doctor's stethoscope, a lawyer's
*' Leading Cases," or a stocking-weaver's frame. It
would be contrary to public policy to take the means
Avhereby a man lives. Of course, if the lawyer were
actually reading his law-book, or the doctor using his
surgical instrument, such things would be ahsohttehj
' Given r. Blann, 3 Blackf. <!+.
'^ Noe 7'. Gibson, 7 Paige, 513.
3 Taylor's L. & T., sect. 59G,
LANDLOIM) AND TKNAXT.
1S5
privileged, ns beir."' in their personul use ; so that
there -svoiihl l»e no lu eesslty to make them out to be
eoiulltlonally privileged.
2. Beasts of the plough, and sheep. ^
III. By a variety of statutes In the dltierent States
(which the student must consult for himself) otluu-
exemptions from distress are made In addition to those
at common law. Among these are the necessary tools
of a mechanic, household goods to a certain value, and
other articles.
1 Taylor's L. & T., sect. 5!»7.
■^
'::?
*,(
186
LKADINO CASKH SIMPLIFIED.
XII. — IXSCKAXCE.
CONCE^ILMENT OF MATERIAL FACTiS,
CARTER V. IIOEHM.
[;? Burr. lliOj; 1 Smitli's Ld. Ctis. (118.]
The governor of Fort Marlljorough, in the Island of
SuniJitra, in the East Indies, cunie to the conehisiou
that there was considorahlo danger of his fort being
captured. He wisi-ly, therefore, wrote to his brother
in Enirland, and asked him to get the fort insured for
ii year. The l)rothor Jiccordiiisxlv wont to Boohni &
Co., and that eminent fii'm insured Fort Marll)orou<>h
against eapture l)y " a foreign enemy " l)etsv'een Octo-
l)er 10th, 1759, and Oetober lOth, 17(10. In April,
17(50, the fort was captured by the French, and this
action was brouglit to recover the insurance money.
The insurers declined to i)ay, on tiie ground that cer-
tain material facts contained in two letters whicii the
governor had written to his brother in Sei)tembcr,
1759, had been concealed from them. In those letters
the governor si)oke of the weakness of his fort, and
the probability of the French attacking it. "The
question," said Lord Ellenborougii, in delivering the
•^X
INSUUANTK.
187
judu'iiu'iit of the coui'l, " must ill ways ho wliothcr tlicrc
Wiis uikUt all tlio ciivimistaiK'cs, jit tlio limo liui policy
Wiis undcrwi'itton, a. fair rcpivsciitatioii or a coiu't'al-
iiu'iil, fVaudulciit If (k'sigiuul, or tIioiii;Ii not dcslgiuMl,
varvinu; inatoriallv tlio object of tlio poliov and cliaiiLi-
iiig the risk undortakon to 1)0 run." Thoroforc, it
appearing that tlio fort was little nioro than a factory,
h(!ing merely intended for derence against tlu; natives,
so that it.s weakness was an iimnaterial fact as regarded
tlu^ French, while the prohiibilitv of their attackiiiir it
was a question which a person in J^ngland was in a
Ix'tter i)osition to determine than tho governor him-
self, Boehm & Co. were ordered to pay up.
.■:j
I
Flli/-: INSUHAXCE — CUSTOM ARY USE OF PRO-
II IB IT ED ARTICLES.
HARPER V. CITY IXS. CO.
[1 Bosw. 520; L>2 N. Y. 441; Lawsoii, Us. & C. 157.]
Evervbodv knows the ffrcat nrintinir and publishinsT
house of Harper & Brothers, New York. Many will
also remember that about thirty years ixno this exten-
sive establishment was almost entirely destroA'ed by
fire. Though the Harper's Avere well insured the com-
panies did not pay up without some law suits. There
'*l
ii
188
LEADI\(! CASKS SniI'LlFIK').
m
Jlj
m
■'■\
was one j)()liey for $10,000 in the City Iiisiir;iiico Com-
paiiv of New York wliicli coverod hooks und hook
materials, stereotyi)o plates, paper, cte., contained in
the premises and privileged " for a printini^ office and
hindcry." Called on, after the fire, to settle, the
oflScers of the company drew the Messrs. Harper's at-
tention to one of those numerous conditions which,
printed in the smallest of type and in the most out of
the way place, every insurance policy contains. This
condition was in these words : " The company shall not
he liahlc for loss or damau'c hy fire occasioned hy cain-
pheno av other imfiainnial)le licjuid." Now, as the fire
had oriu'inated through the carelessness of a i)rinter in
dropping a lighted paper into a pan of fluid cam[)heiie
which he mistook for water, it looked like a desper-
ate case for the firm. But they, like prudent men,
straightway went to see a " i^ood lawyer." Thev
consulted William M. Evai'ls, and he advised them to
hring an action on the ijolicv, which thev did. On the
trial a numher of witnesses testified thatcain[)hene was
necessary for fine printing, for the pur[)()so of cle:inslng
the rollers of the machines. On this <>round the com-
pany were ordered to pay up, the princi[)Ie hcing that
where a certain trade or business is insured, the insurer
is presumed to consent that all its customary incidents
shall he allowed, though the policy (h)es not [)eiinit it
and may even, hy its [)rinted conditions, forhid it. Wy
insuring the plaintiff's stock with the privilege of a
printing office and l)()ok binderv, said the court, the
use of such materials, including cainphene, as were
necessary in that business was allowed ; otherwise the
contra:jt was a delusion and a snare.
INSUUANCK.
189
WHO MAY INSURE THE LIFE OF ANOTHER,
CONNECTICUT, ETC., INS. CO. v. SCHAEFER.
[ii4 U. S. 457.]
Goorije and Frances had been inarriod a few vears
when an insnranee airent ajipeared on the .scene, and
.soon denion.strated what a irood thlnij it wonld be for
them to take out a policy in his company on their
joint lives, so that if he died she would have $5,000
to comfort her for her loss, and vice versa. But after
they had got the policy the course of true love ran
anvthiuii" l)ut smooth. The end of it was that in two
short years the judge was called on to cut the
hymeneal knot — George and Frances were divorced.
Then Georire married a Frances II. and Frances mar-
ried a Georixe II. Bv-and-bv Geor<>e I. died, and
Francis I., when she heard the news, uidocked the
bureau drawer, took out the policy, and concluded to
open a bank account that afternoon, after she had
called at the insurance-office for her money.
The insurance manager sat in his counting-house
counting out his money. He chuckled to himself as
ho read over tiio long list of innocents who had
handed over their money for his company to keep.
He smiled as he thought how the bumj) of confidence
had been developed in some people, when, enter
Frances. The manager pleasantly handed her a chair,
mistaking her for an a[)plicant for insurance ; but
when she produced the old policy on tlie life of her
190
LEADIXU CASES SIMPLIFIED.
'Hi
<■
rlllj
i:
!
first Georire, liis smile (loi)iirtetl ; and his look chaiiiied
to one of hlauk astonislnnent, as she asked liiin if ho
would be irood enoui^h to write her a chock for the
amount, in order that she might uet it in the bank be-
fore three o'clock. "Pay you to-day? " Ik^ uaspcd.
" You must bo crazy, mnihun ; I never hoard of such
ji thin"-. You quite take inv breath awav, 1 assure
you." " "Well, [ am sorry if I have made a mistake,
l>ut does not the policy say that 3'ou will i)ay nio the
money ' at his death?' and you know very well that
he has l)eou dead nearly a week." " I admit," an-
swered the manairer, " that it savs ' at his death,' but
it realh^ means nothing of the kind. You st^e, l)ef()ro
we can pay 3'ou Ave have to find out whether the man
is dead, what lie died of, whether the answers he i>ave
about the lives of his grandfathers and grandmothers
and uncles and aunts wore all correct. Of course, we
know that he is dead, but not officially, madam, not
ofiiciallv. All this will take a long time, for I have
the l)est reason for believing that wo can establish, by
correspondence with parties in Germany, that his
maternal grandunchi was sixtv-nino years and eleven
months old when ho died, while, according to our do-
ceased friend's statement, ho should have \wi^\\ seventy.
If this is so, it was a misrei)rosentalion, which, of
course, releases us from liability, to say nothini; of a
report which one of onr agents ])rings that an old
acquaintance remembers his falling from a tree when
l)ird's-nesting while a l)oy — another im[)ortant fact
which he concealed from us. Come back in a couple
of 3'ears, nuulam, and wo will then be in a [jositiou to
say whether we will pay you or not." " Swindler,"
cried Frances, " I'll send my husband to talk to you."
1^•SUKANCE.
191
"Culm yourself, madjiin," returned the manager;
"you can not mean that you have secured another
husband in a week." Then Frances tokl the iiiana<rer
how she and George had been divorced more than a
ye:U' heibre, and that she had married again. As he
listened to this, his smile returned, and, raising his
eyes, he said sh)wly :" Before you go madam, I
should like to ask you if you have ever heard of Bold-
ero?" " Boldero," exclaimed Frances; "who was
he, a Chinaman? " " No," returned tiie manager, " an
Englishman. Listen to his story and then say if you
think it worth while coming here again even in two
years :
" About seventy-Hvc years ago there lived a great
statesman named William Pitt, who was Prime Minis-
ter of England, and whose income was never quite up to
his expenses. Among his many creditors was one
Boldero, a carriage-maker, who had a bill against him
for something like £2,500. Seeing small cliance of
his ever <>:ettinij!; his money from either Pitt livin<r, or
his estate when he died, Boldero went to the Pelican
Insurance C'ompany in London, and took out a policy
on the premier's life for the £2,500. By-and-by Mr.
Pitt died, and a gi'ateful country, alter depositing his
remains in Westminster Abbey, ordered all his debts
to be paid from the })ul)lic i)urse. Ui), then, comes
Mr. lioldero, and gets his £2,500 from the government
fund. Then he [)resents his policy at the Pelican
office, and the directors refusing to i)a3' him, he brings
a suit in the Court of King's Bench. But there he is
worsted, for Lord ELLKxnouorcai, Ciiief Justice of
England, decided that a contract of life uisurance is a
contract of indenuiity, and that, as Boldero had been
:3
111
u
liJ2
LEADING CASES SIMPLIFIED.
■"iip
paid his debt, he could not recover anything from the
company.'
" So, madam, you must phiinly see that by being
divorced and marrvinu: airain, your interest in the life
of your first husband ceased, and, like Boldero, you
can't get any nisurance money. Good day." Frances
left the office, and Avent straiirht to a lawvcr. To
him she related the whole case, l)e<2;innin<x with the
visit of the agent five 3'ears before, and ending with
her interview with the manager. " lie asked me,"
said s-he, '* if I had ever heard of Boldero." " Did
he, indeed," said the man of law, " then go back and
ask Jiim if he ever heard of Dalb}'." -
The last scene is laid within the august portals of
the Supreme Court of the United States, where the
man of law has safely piloted Frances' action against
the company. The court is delivering its judgment.
There is no use, they say, quoting Boldero's case to us,
for as even the great Homer sometimes nods, the great
ELLEMJOiJOUCJir sometimes made a mistake, and when
he decided that Boldero could not recover the £2,r>00
from the comp;inv he made a verv bio- one, indeed.
The English judges never liked that decision ; so
when, fifty years after, one Mr. Dalby sued on a
policy on the life of the Duke of Cambridge,'^ the
Court of Exchequer Chamber unanimously overruled
Boldero's ca^e. A man cannot take out an insurance
on the life of a total stranger, for the insurance is only
valid when he has some interest in the life of the
party whom he insures. Any reas ..able ex[)ectati()n
1 Godsiill r. BoUloro, East, 72; L' Smith's Ld. Cas. 'J!>2.
■'■ Dalby v. India, etc., Life Ass. Co. 15 C. U. ;J(;5; 2 Smith's Ld.
Cas. 298.
INSUItANCF.
193
of pecuniary benefit or adviintagc from the continued
life of another creates a sufficient insnra))le interest in
such life. Thus, a man has an insurable interest in
his own life, ami in that of his wife and children, a
woman in that of her husband, a child in the life of his
parent, or a creditor in the life of his del)tor. A con-
tract of life insurance is not like that of fire insurance,
or marine insurance, a contract of indomnlt}'^ merely,
(this is where Ellknbououoh blundered), but it en-
litU's th'^ -"surcd to recover the whole amount Avithout
reference to what his real loss is. All that is necessary-
is that he should have had an insurable interest at the
time the poJici/ was taken out. The cessation of this
interest does not atfect the case at all. Frances
clearly had an insurable interest at the time the policy
was taken out — for George and she were then man
and wife — and the subsequent divorce and re-marriage
did not alter the case.
So she got her money after waiting five years.
But then beneficiaries under life insurance policies
have generally to wait longer than that, and usually
consider themselves very lucky if they ever get auy-
thinir at all.
13
'is
••:3
19^
LEADING CASES SIMPLIFI Kl).
V'
mi
^ri
I! I
:i ^
XIII. BxULMEXTS.
THE DIFFERENT KiyDS OF BAILMENTS.
COGGS V. BERXARD.
[Ld. Raym. !)0i>; 1 Smith's Lil. Cas. 284.]
Coirffs wanted several hoijslieads of brandy removed
from one cellar to another. Instead of emplo3'ing a
regular porter to do the job, he accepted the gratui-
tous services of his friend, Bernard, who said he would
move them safely and securely. But the amateur did
his work so clumsily that one of the casks was staved,
and the street streamed with u'ood old brandv. Coirus
was anirrv, t.nd notwithstandinijj Bernard was to re-
ceive nothing for his trouble, successfully mantained
an action against him for tlie spilt liquor.
This is one of the most celebrated cases ever decided
by a court, for the elaborate judgment of Chief Justice
Holt contains the first exhaustive and methodical ex-
position of the law of bailments. A bailment is the
delivery of a thing in trust for some special purpose,
the person who delivers it being called the bailor, and
the person to Avhom it is delivered the bailee. Lord
Holt divides bailments into six kinds — depositu7)i,
IJIII
liAlLMENTS.
19^
mandatum, commodafum, vadium, locatio rei, unci
locatlo operis faciendi. These may also lie clussifiell :•
(1) For the benefit of the baUor iiloiie ; (2) fur the
])eiu'fit of the bailee alone ; (3) for the mutual benefit
of the bailor and bailee.
1. Under the first head come depositum and man-
dalum.
(a.) Depositum — the delivery of goods to be taken
care q/'for the bailor without the bailee receiving any-
thing for his trouble: e.fj., I a.sk my friend Brown to
hold iny watch while I am playing a game of base-ball.
Brown is responsible only for gross negligence. If he
takes a moderate amount of care of my -watch, he will
not be oblio-ed to give me a new one if it is stolen, or
lost, or broken. But, on the other hand, if he has
been jxrosslv ne<ilii;ent, he cannot defend himself bv
showing that he has lost his own things with my
watch. At the same time I must exercise a certain
amount of care in the selection of my depositary. If
I were to intrust inv watch to an idiot or a little ffirl,
no amonnt of gross negligence on their part would
give mo a remedy against them. I must bear the con-
sequences of my own stupidity. The depositary, as a
rule, must not make use of the things deposited. But
if no harm would naturally come from his doing so,
he may. Brown, for example, might draw my watch
from his pocket to see the time.
(6.) Mandatum — the delivery of goods to he done
somethuiij with for the bailor, without the bailee re-
ceiving anything for his trouble : {^f/., I ask my friend
Jones to post a letter for me.
As in depositum (and maiidatiDa is only a kind of
superior depositum), the bailee is liable for gross neg-
^§:
19(j
LKADING CASKS SIMl'I, IKIED.
^ .
\ 1
liirencc only. The contract between Mr. Coijirs nii<l
Mr. BeniiU'd was one of manddtiim, thongh it is lo he
observed that ]Mr. Bernard hiid additional rcsponsibil-
itv on his shoulders by iindcrtaUinij to effect the re-
nioval " safely." The rule, however, that a mandatory
is responsible for gross negligence only, is to some ex-
tent qualitied by the maxim sjxjiidcs perUkon arti^,
that is to say, if your position implies sUill you must
use it. If I ask a jockey to do mo the favor to trv my
horse, or a surgeon offers, without pay, to set my
sprained ankle, they must use the ordinary care of
persons of their qualifications. What would not Ito
iiciiliirence at all in unskilled i)ersous niiii:ht be ijross
V? c loo
ncirliixence in them.
2. Under this head (for the benefit of the bailee
alone) comes commodatain.
(a.) Coi/iinodaiuin — the lendiw/ of a thing to be
returned just as it is: e.g., I lend my gray mare to
Jones to ride to the next town on ; I don't exi)ect him
to return me another jrray mare, but the samo identi-
cal old horse that I lend him. (Note. — If I exi)ected
a borrower to return me not the identical things, but
similar: e.g., if I lend him half a dozen postage
stamps, or $'), it would not be cominodatum but
onufiuim. )
Commodatiua being a contract in which the only
person benefited is the bailee, that gentleman is re-
sponsible even for slight negligence ; the more so as
by the fact of borrowing he may l)e taken to have
represented himself to the lender as a fit and proper
person to be intrusted with a valuable article. The
commodatory must strictly pursue the terms of the
loan. If 1 borrow a horse or a book to ride or to read
IIAILMKNTS.
11)7
myself, I huvc no business to allow aiiyhody else to
ride or rojid. If the horse is lent for the hiiih\v;i\', I
must not t:iko it alouij d;uigerous bridle ]);itlis. The
]):ulee must redeliver tlie ehiittel, Avhen the time has
expired, just us it was, reasonable wear aud tear ex-
ee[)ted. IIo is not responsible, however, if the arti-
cle i)erishes by iuevitable accident, or by its heing
stolen from him without any fault of his. The bailor
must disclose defects of which he is aware, as for
instance, that the gun lui len<ls his frieud Brown is
more likely tlian not to l)urst and blow his hand
off.
3. Undtu' the last head (for the mutual benefit of
bailor aud bailee) conn; vadiiun, locatio rei iind locaiio
ojx-ris.
{(I.) Vadium (otherwise known i\>i ])ir/non accep-
tuiii) — the contract of pawn. We will hope the stu-
dent is not fi'e(juently the ])ailor here.
The benefit being mutual, the degree of diligence re-
quire<| of the bailee is " ordiuarv." If in spile of due
diligence the chattel is lost while in the pawnee's
keei)iug, he may still sue the pawnor for the amount
of his debt. The elfect of the coutract of pawn is not
(like that of a mortgage of i)ersonalty) to pass the
})roperty in the chattel to the bailee ; nor, on the
other hand, is .it (like that of a lieu) merely to give
liiui a hostage, but it gives him such a special prop-
erty in tl.'e thing pawned as enables him, if the pawnor
makes default, to sell it and pay himself; the sur[)lus
being, of course, handed back to the pawnor. As a
rule, the pawnee may not make use of the thing
bailed to him. If, however, it is au article which
cannot bo the worse for the user, — jewellery, for
:3
10«
LEADINti CASKS SIMI ..II IKI).
ill
instiinee, — ho nuiy ; but in such !i cjiso ho wouhl l)o
rcsj)()ii.sil)lo for tho h)s.s, however it h;i[)i)(!ii('(l. Alorc-
over, if the piiwii bo of such a nature that the pawnee
is put to expense to keep it, e.g., if it 1)0 a horse or ii
cow, the pawnee may make use of it, — riding' th(^
liorse or milking the cow — as a reeompcuise for the
cost of maintenance.
(/>.) Lorxttlo rel — the every-day contract ol' the
hiring of ii^oocls.
This being a mutual benefit l)ailincnt, the decree of
noijliijence for which the hirer is an-^werabie is ordiii-
ury. I hire a horse and buggy from a liv(My-keo[)er,
and durin<; the course of niv drive, the buiriry is
run into and smashed, or the horse runs away and
tears everything to pieces. Tho law does not make
me pa}-- tho livery-man for the damage, if I have us(>d
ordinary care in driving, that is, if I have driven his
horse as I would my own.
(c.) Locatlo oppvis faciendl — when the bailee is to
bestow labor on or about the thing l)ailod, and to be
paid for such labor.
Generally speaking, the rule a;^ to care in this case
is tho same as in vadium or locatio rei. I give my coat
to a tailor to be mendeil or my watch to a jewclU'r fir
the same pur[)ose. They must use ordinary care in
doing it, and of course if their occupation implies skill
they must use it, as in case 1 {It.) But wIkmi a bailee
of this kind is a person exercising a public emjiloy-
ment — a common-carrier or an inn-keo[)or, he is re-
quired to exercise much greater circums[)ection. l\\
fact, the law makes him an insurer of my goods, ex-
cept where the loss arisqs from the act of God or the
public enemy.
HAILMKNT.'"!.
199
LIABILITIES OF IXS^ KEEPERS.
CAYT.E'S CASE.
[8Coke, :{2; 1 Smith's Lil. (las. Ilt4.]
Alatodti'iivollorji-uiiiod his timelv iim.aiid disinoiiiit-
m<r from hi.s fiorv steed btido mine host send it out to
pasture. The hiiidU)rd, JU'cordiiigly, sent it into a
Held ; but, when its master wished to resume his Jour-
ney, it was nowhere to be found. Tlie owner now
tried to make out that the hindh)rd was resp()nsil)le.
But it was held that he was not, for the iiorse had been
sent into the field at the express desire of tlie guest ;
and several other rules as to the liability of inn-ke(.'pers
this great case established in the law, viz. :
1. If a neighbor, who is no traveller, but siin[)ly a
friend who is lodging thereat his request, has his goods
stolen from the inn, the inn-keeper is not lial)le.
2. An inn-keeper is bound to answer for himself and
his family, for his chaml)ers and stables.
3. It is no excuse that ho delivered the guest the
key of the chaml)er in which lie is lodged, and that he
left that chamber door oi)cn.
4. Alth()Uiji:h the <>'uest does not deliver his floods to
the inn-keeper to keep, nor acquaint him with them,
yet, if they be carried away or stolen, the inn-keeper
is liable.
5. The inn-keeper requires his guest to put his goods
in a certain place under lock and key, and then he will
warrant them, otherwise not; the guest lets them lie
!§
200
LE.M)IN(} CASKS SIMI'LiriKI).
r. i
i44
in ill! outer pluco where thev aw taken :i\vav. Tlu-
I. « »
inn-Uecper slnill not be diarized.
6. The inn-keeper's liuhilily extend- to all niov iMc
Sfoods.
7. If the ijiiest's servant, or he wlio conies wilh him,
or he whom he desires to he lodiicd wilh him, stc^iis
or carries away his i;-oods, the inn-keei)er shall not he
charu'cd.
S. II" the tziic>t l>c hcalcn at the inn, the inn-kecpcr
shall not answer I'or it.
BEIIKSIIIIIE AVOOLLEX CO. v. PROCTOR.
[TCiisii. n:.]
Russell, the airent oi the Berkshire Woollen C!om-
pany» "vvent to Boston to attend to a law-><nit for his
})rlnci[)als. IIo ifiii, up at the ^Nlarlhoro hotel in that
city, alon<>; with several witnesses that he had hrouijht
alonir with him. L;iw-snits, as some people know, cost
money, and Russell, therefoi'o, h(>sides spare chanjjfe,
had a package containing $'»()() in his trunk. He hud
been at the hotel about three weeks, when ho discov-
ered that a thief had come into his room, picked the
lock of his trunk and de[)arted with the shekels. The
Woollen Conii)any did not like to h)se good money in
this way, and they immediately instituted a suit against
the landlord for the amount. jNIine host made several
defences. Among other thinjjs he said that as Russell
H.ML.MKXTM.
201
w.'is goiiiir to 1)(> ill Boston Mcvin'iil wocks, lio li.-id miido
ji ^pt'cinl iiiirccMU'iit with iiim to hoard liiiii tit so miicli
a week. " This in;i(lu him u l)o;u'(h'i'," he, iiri^iiod,
" iiiid MM iiui-koopcr is only an insurer of th« property
of ' U'Ui'sts.' " l»nl llie coui't hchl tliiit a Iravclh'r wlio
puts up at an inn, and is received as a u'uesl, docs not
cease to he a iriiesl from llie fact that lu! makes ail
aiirccment with tlie inn-kee[)er for tlu; i)i'icn of liis
hoard hy the week. P>eaten from this [josition, h(! saitl
tliat he was quite; willing to stand liahlo for the [)rop-
ertv of his iruests, hut that ho thought ho ouirht not to
pav for what tliev earri*^d with them l)elonnMni»* to
othei- [)eo[)Ie. l>ut the court told him that it was an
old principle of law, tli.it if a servant is rohhcd of
his master's money or i»oods, the latt(!r may maintain
an action against the inn-kcopcr in Avhoso house tho
loss was sustained. These were two knock-downs for
tho i)laintifr, l)ut the diifeiKhint camo up smiling for a
third and final round, "At any ra<'3,"' ho said, "I
am only liahlo for such sums of money as my guests
ai'o ohli<2:ed to carry for tlieir necessary trayeHin<>; ex-
])onscs." " Xo," answered tho court, "you are
wrong again. The res[)onsil)ility of the inn-kecpor
extends to all tho moval)le goods and chattels and
moneys of his guest which are phu'cd within tho inn."
Tho landlord could fight no longer ; he threw up the
sponge and paid the judgment.
:^.
^sS^^'iSS:»t% ;* t ^ aK j. : . * M r . K i i^1 ■^'^'■^^^ i^
■t:<-'
202
LEADING CASES SIMPLIFIED.
RESPOXSIBILITY <>F CAR HIE R OF PASSEXGEli^
FOR DEFECTIVE VEHICLE.
IXGAT^LS V. l?rLLS.
[D .M,etc. 1 ; Thonip. Ld. Ctis. Carr. Pass. 111'.]
Ml*. Iiiir;ill.s was iuiotheruiilortuuato tniveller. hid-
ing on tho top of a coach which carried pas^enjj^ers
between Camhridge and Boston, he was .surprised to
liear the axlo crack, to see one of tho hind wheels come
off and to feel tho vehicle settle down on one side.
Without waiting for anvthing more, he made a jump
to tho pavement, but not being able to laud with the
ability of a trapeze performer, ho broke his arm. A
broken arm is no loko and Mr. In<ralls determined to
make the coach proprietor pay tho damage. Tho lat-
ter was just as determined not to pay. In tho first
place ho pleaded that if Mr. Ingalls had kept his seat,
as ho ought to have done, he would not have been
hurt at all, for it was his ]ea[) to tho [)avement which
had broken his arm and not the o. erturning of ihc
coach. But the court held that wlu're a passenger is
phiced, in consequence of tho carrier's want of care, in
!l situation so perilous as to render his endeavoring to
escape an act of precaution, the carrier is liable fi)r the
injury he receives in doing so, even though it after-
wards turns out that if he had kept his seat he would
not have been hurt at all. Then tho coach projirietor
resorted to another defence, and this time with success.
He i)roved that he had his coach m;' U; of tho best
m:
BAILMENTS.
203
matoriiils in the market, that it had l)eeii carefully ex-
iiiuiiicd and inspected, but that the axle had broken
on account of a hidden defect in its interior which no-
body could have discovered or have been aware of.
The coiu't held that this was enouixh and that ho was
not liable. Carriers of passengers, that said, wore
bound to the utmost care and diligence, in the trans-
portation itself and in i)roviding safe and sufficient vehi-
cles. But " where the accident arises from a hidden and
internal defect which a careful and thorough examina-
(ion Avouhl not disclose, and which could not be
;:uarded aixainst bv the exercise of a sound iudirnient,
ih(Mi the carrier is not liable for the injury, but the
misfortune must be l)orne l)v tlie sufferer as one of
that class of injuries for which the law can afford no
redress in the form of a i)ecuniar3'" recompense." ^
1 It must strike the observer as somewhat strange that the law
regards the safety of a chattel while in trausit as of more iiiiportauce
than the life or pt-rsoii of a luunau being. A carrier of goods is
(with two rare ex(';'plions) an insurer of tlieir safety. If there had
been a basket of eggs on the top of the coach on wliich Mr. lugalls
was riding, and tiie broken axle had spilled tlieni into the street, the
coach proprietor would have had to pay for them. However, the
destinclion itself is not uioro absurd tliau the reasons which the
courts cnutinuf! to give for maintaining it. Wiien property is in-
trusli'd to a carrier, say tlie courts, the owner loses all sight of it;
it is inanimate and cannot take care of itself. What is there to pre-
vent the carrier and some Jesse James of the road secretly making a
divide of tlie property? To protect persons liavingdealings with car-
riers, we must make them insurers. " liut prrsDiis,^'' say the courts,
"are very different — they can take care of themselves, and can
exercise that vigilance and foresight in the maintenance of their
rights which the owners of goods cannot do." Tliis had u little
show of sense when people rode in stage coaches, but we should
very much like to see some one of our modern jmlges, who are so
fond of applying this reason to the means of transit of to-day.
j:,^,i
204
LEADING CASES SIMPLIFIED.
RAILROAD TIME TABLES AXD COXTRACTS.
DENTOX V. GREAT XORTHERX ItAIEAVAY CO.
[5 El. .<: 151. SCO; Thump. Ld. Cas. Carr. Pass. 52.J
On the 2")tli of Miirch, 18")."), ]\Ir. Doiiton, an
en-
if
■}(:,', 'L
""'•SI
ffiiicer of sonic cmiiienee, had occasion to ijo from
Pctci'borongh to Hull, where he had an ap[)ointinont
for the next nioriiinir. He consnlted the C()ni[)any's
time-tables, and fonnd there was a train leavini^' Pcter-
l)oron<rh at 7 p. :m. which wonkl land hiin at Hull
ubont midnight. This jnst snitcd him, so he took his
ticket for Hull and started by it. But when he got to
a place called Milford Junction, where passengers
change cars for Hull, ho was informed bv an obliu-inii:
official that tlu; late train to Hull had been discon-
tinued, and that lu; could not get there that night.
The fact was, that the line from Milford Junction to
Hull belonged to the North-Eastern Railway (\)ni-
pany, wiio till March 1st had run a train dc[)artiiii; a
few minutes after the arrival of the train having
Peterborouu'h at 7 p. m. But it had not run at all
during March, and the Great Northern Kailway Com-
pany had pnblishcil their March tinnstables, thougli
they had had notice that it would not run. In conse-
quence of the absence of this train, Mr. Denton did
" takliiu; care of liiuisclf " ami " cxcrcisinir vi-rilancc and f<)resiu:lit
in the niaiiitcnance of his riLrlits " in tlie midst of a railroail eolli-
siou or a steamboat explosion.
ijail.mi:nts.
205
not get to Hull ill time to keep liis appointment, imd
sustained damage to the amount of£') lO.s., for which
lie sought to make the Great Northern Railway Com-
pany^ liable. He was quite successful. The company
were held liable on the grounds : —
1. That they had l)cen guilty of a faise representation.
" It is all one," said Lord Camimjell, "■ as if a person
duly authorized by the company had, knowing it was
not true, said to the plaintiff, ' There is a train from
Miltord Junction to Hull at that hour.' The plaintiff
])elieves this, acts upon it, and sustains loss. It is
well established law that where a person makes an un-
true statement, knowing it to be untrue, to another,
who is induced to act upon it, an action lies. The
facts l)ring the present case within that rule."
2. That the time-tables amounted to a contract.
" It seems to me," said Wigiitmax, J., " that the pub-
lication of these time-tables amounted to a i)romise to
any one of the public who would come to the station
and pay for a ticket, that he shall have one by the
train at seven."
POWER OF CARRIER TO LIMIT LIABILITY.
HOLLISTEll V. NOWLEX.
[19 Weiul. 2;U: ;?2 Am. Doc. 455; Thorap. Ld. Cas. Carr. Pass. 489.]
It was in 1838, before railroads were very numerous,
that HoUister made a journey by stage from Utica to
20(5
LEADING CASES SIMPLIFIKD.
Buffalo, New York. A tnivellor had to take an early
start in those days, and the sun had not yet risen
when Hollister got on the coach of the Telegraph Line,
and saw his trunk salely stowed away in the boot. In
all the stage-offices along the route, and in most of
the public houses, there were hung large placards in
biir letters, Avith this notice: "All bairij-aLro sent or
carried on the Telegraph Line is at the risk of the
owners thereof." Whetlier Hollister read any of
these notices no one will ever be able to find out, for
no one saw him reading them. To be sure ho said he
never did, but then he may have lied about it. At
any rate, ])ef<)re the coach had gone three miles on this
memoral)le journey, it Avas discovered that somebody
had climbed up at the back of the vehicle, cut the
strai)s of tiie boot, and relieved the horses of pulling
two hundred pounds at least. Then Hollister sug-
jjested to the ca:i"ierthe advi.sabilitv of recouuinii: him
for his loss, and the carrier (as usual) cf)uld not see it
in that light. So they (inally had to go before the
Su|)reme Court of New York, and Nowlen's lawyer
and that tribunal discussed the matter in a friendlv wav.
*' Wo admit," said yotvJeii's lawijer, "that wo arc
j)rima facie insurers of the projjerty wo carry, but
the law lets us make a different contract with our
customers."
The court. " Yes ; but wo fail to discover any con-
tract here."
A\nch'niih(wypv. " When W(! say : 'Any one wanting
to travcd on our line must take the risk of their bair-
iiraufc,' and a man seeinij^<-ur notice, jjets in one of our
coaclies with his baggage, wo have a right to pel sumo
that he has accepted our terms."
BAILMENTS.
207
The court. " From his hiivlnjr siiid nothing? Not :it
all. You have no more right to assume from his
silence that ho consents than that he dissents. Silence
sometimes signifies assent, but not in your case. The
law casts on you legal obligations which a party has a
ri<>ht to insist on. If a man ordered a coat from a
tailor after he had given him notice that he would not
make any coat for less than $100, the assent of the
customer to i)ay that sum, although it were double
the real value of the coat, might be implied. But if
the tailor had been under a legal ol)ligation not oidy
to furnish coats to his customers, l)ut to furnish them
at a reasonable price, no such im[)lication could
arise."
And Nowlen had to pay for HoUister's stolen
trunk.
LIABILITY FOR IXJCRY TO FREE PASSENGER.
PHILADETiPHIA, KTC, R. CO. v. DERBY.
[U How. 4()8; Tliomp. Ld. Cas. Ciirr. Pass. 81.]
One pleasant day about thirty years ago, Mr.
Derby, who was a stockholder in the company, was
invited by the president and officers of the Philadel-
l)hia and Reading Railroad to make a little excursion
with them over the line. Unfortunately for him on
208
LEADIXTr CASKS SIMPLIFI lOI).
'.f]
that very day, an cMiijiiKc'r in ('liari:;c of another loco-
motiye on the road, attempted an experiment Avhicli,
notwithstandini]^ that it is iinitbrmly unsuccessful, is
still repeated at regular interyals to this day — he tried
to have two trains pass each other on a single track.
The result was disastrous to Mr. Derl)y and to Mr.
'^orl)y's boiu's, and he brought an action against the
r." .'oad for his injuries. The defence Avas that lie was
not i: passenger, as he was tr.avelling frc(; of charge.
But i*^ was held that the duty of a carrier to trans[)ort
safely <(Ocs not arise from the consideration [)aid for
the seryjce, but on the contrary', is imposed by the
law even Avliere the service is gratuitous. " When
carriers undertake to convey persons l)y the powerful,
but dangerous agency of steam," said tlie Supreme
Court of the United States, " public policy and safety
require that the}' bo held to the greatest possible care
and diligence. And whether the consideration for
such transportation be pecuniary or otherwise, the
personal safety of the passengers should not ^ ^ left to
the sport of chance or the negliijence of careless
ajrents. Any ncirliLTenco in such case may well de-
serve the epithet of ' gross.' "
:\^>
BAILMENTS.
201^
TRAVELLING ON ''FREE PASS" WITH CON-
DITIONS.
KAILKOAl) CO. V. LOCKWOOO.
[17 Wall. 3r)7; Thomp. Ld. Cas. Carr. Pass. ;?78.]
]\I()st people prefer triivelllng on :i "• puss " to piiy-
in*'- fare. It is sometimes, though, a little disappoint-
ing when you have taken your seat in the ear, and
lKi[)[)en to glanee over the " pass," to liiul that on the
reverse side in very small type there is printed this
condition :
"Tlio person a('C(»i)ting this free tioket assimies all risk of aceidents and
expressly a)j:rees tliat the coiiipany sliall not he liahle under unii circum-
stances whether of nef/liffeiice of their ar/ents or othenrise, for any injury to the
porson or for any loss or injury to the property of the passenger using this
ticket."
The "deadhead" will doubtless be gratified to
learn that, so far as the Avords italicized are concerned,
the American courts are decidedly averse to giving the
company the benefit of them. Tiie litigation which
^Ir. Lockwood carried on some years ago has done
much to firmly establish this principle. He took a
train on the New York Central Railroad on just such
a ticket with just such a conditif)n, which he had re*
ceived from one of the officers of the company, not a?
an expression of friendship, but 1)ecause ^Ir. Lock-
wood was a drover and was shii)ping a good many
head of stock over the line. There was an " acci-
dent " and Mr. Lockwood was hurt. He brought an
action and recovered a verdict. The railroad, as is the
custom of railroads, fought the case as far as was pos-
14
m
•I
if. ■'■■
<;
210
LEAUINO CASKS ^IMPLIIIKD.
sible — which in this instaiu'o was as ftir as the Siiprcinc
Court of the United States. But there Mr. Justice
Bhadlky, in a very able and learned opinion which the
student should not fail to read, aftirnied the judiiinenl
\\\ favor of Mr. Loekwood. The hiw on the subject
(le sunnned up thus :
1. A eoninion carrier cainiot lawfully make a con-
tract for exeini)tion from res[)onsil)ility, when sudi
exemption is not just and i'easonal)le in the eN-e of
the law.
2. It is not just and reasonable in the ey<^ of the
law, for Ji common carrier to stipulate for exem[)tion
from responsibility for the negligence of himself or his
servants.
3. These rules apply both to carriers of goods and
carriers of passengers for hire, and with special t"orce
to the latter.^
WHO CARRIER MAY REFUSE TO CARRY.
THl RSTOX V. UXIOX PACIFC It. CO.
[+ Dill. :?21 ; Tlioifi]!. L(l. ('tis. Carr. Pass. 10.]
Thurston was a l)ad man to meet on a railroad train.
• As Lockwood's pass wis given liiinasaparl of the transaction
of carryin;? his stock, it w.as held tliat ho was a i)asscngoi' for iiire
a.s much as though lie had paid his faro. Tlie court did not fhore-
foro decide wliat would liave boon tlie result had ho been a purely
gratuitous passenger. Other courts, however, lui\e d<!cidod that
this makes no difference. Lawson, Cent. Carr., sects. 212-221.
BAILMENTS.
211
And yet tnivollcrs were very apt to run iijitiiiist him,
for his Imsiiie.s.s culled him there verv iViMiueiitlv. His
«, X *,
.sole stock ill tnide was three pieces of pasteboard, and
he earned his living hy mukini>' snitdl bets with unsophis-
ticated grangers, wliom heg(!n'.'r;dly met in the smoking
car, concerning the identity ot'u parficnlur card of the
three. After the game was over, and when tlje shek-
els of the rural inhabitant were de[)osited in tlie jjocket
ol" Thurston, wliat used to i)uz/,le tlie granger was how
it came about that whenever ho bet a small sum, he
could generally locate the right card, and wluMU'ver he
put up his i)ile, he always selected the wrong one.
It was this sort of thing that gave Thurston tlie name
of" monte-nuin," and that, one day having pui'chased
his ticket on the defendant's road, caused the con-
ductor of the train to i)revent him from boarding it.
The suit which ho brought against tin; company gave
the court an opi)ortunitv of stating in a verv lucid
way the law concerning the light of ii carrier to refuse
to carry.
And here it is in a dozen or more linos : " The rail-
way company is bound as a common carriiu*, when not
overcrowded, to take all pr()[)er persons who may ap-
ply for transportation over its line, on their complying
with all reasonable rules of the company. But it is not
bound to carry all persons at all times or it migiit be
utterly unable to protect itself from ruin. It would
not be obliixed to carry one whose ostensible business
might be to injure the line ; one tleeing from justice ;
one going upon the train to assault a passenger, com-
mit larceny or robbery, or for the purpose of interfer-
ing with the proper regulations of the comi)auy, or for
gambling in any form or committing any crime ; nor is
212
LKAOINO CASKS SIMPTJFIED.
B
',':f
;Bii
it bound to ciirrv persons iiifcctecl witli ('oiituirioiis
disojiscs to the (luiiii'tT of other passenircrs. The p(>rsoii
must 1)11 upon liiwl'ul niid legitiiuiite husiiioss. IIciicc
defendant is not bound to cany jxTsons wlio travel foi-
tlio puipose of ganiblinui:. As <^aniblin<j; is a crime
under the State laws, it is uot even necessary for the
company to have a ride against it. It is not bound to
furnish facilities for carryinj^ out an uidawfnl i)uri)ose.
Necessary force may be used to prevent gaml)lers from
enterini; trains, and if found on them emraufed in gam-
bling, and ri'fusing to desist, they may be forcibly ex-
pelled."
So the monle-man could not get any damages ;
but as he had paid for his ticket, and tlie coni-
l)any had not refunded him the money, tiie judge
thought the jury should make that u^) to him, and
they gave him a verdict for $1.74.
sfli=
WHAT IS ''BAGGAGE" FOR WHICH CARRIER
IS HE SPONSIBLE.
XEAV YORK CEXTRAT^ R. CO. v. FRAT^OFF.
[100 U. S. 24; Thoiup Ld. Cas, Carr. Pass. 502.]
A Russian countess of large wealth and high posi-
tion, after taking in London and Paris, concluded not
to die till she had seen America. The pampered aris-
HAIL.MKNT8.
213
tocr.'icy of Europe are not content to tviivcl with a
c'lirpet-saek ; and .so she nuist hrini; ah)ng with lior
half a dozen trunks, l)urstini>" Avith silU.s, and jewels,
and laees, anc' l<ne linens, in onhn- that she niijiht not
he without soniethini!: to wear if she should want to go
to the opera in New York, or he invited out to dinner
in St. Ijouis. Her laces she was j)articularly proud of,
for thev had heen made; hy her ancestors upon their
i'states in Russia. She arrived in New York in good
oi'der, and so did her trunks ; and all would have heen
well had she not made \i[) her mind to visit Chicago,
for on her way thither two of her trunks (which was
all, she dai-ed trust in that wicked city) came to gi'ief.
On the train between Albany and Niauara Falls, some
ruthless Nihilist ransacked her wardrobe, and failed to
return two hundred yards of her much-[)rized lace.
Then the countess said to the railroad company,
" <>ive me hack the needlework of my <>randm()lhers,
or give me roubles." But the railroad comi)an3' could
not, or wfMdd not, and then the countess brought suit,
and a iiiry thou<»ht that the laces were worth at least
$10,000. The com[)any ai)pealed, l)ut the Supreme
Court of the United States decided that 1 hey must pay
the $10,000. Bauijaiie for which you are liable as an
insurer, said the court to the company, is none the less
I)aggage because it is extensive or valuable. The sole
question is, was it suited to the condition of its
owner. If a commercial traveller, or a country
school-marm, were to carry thousands of dollars of ex-
l)ensive lace in her trunk, and it were to l)e lost on
your road, you would not be liable ; hut here, your
passenger was a countess, and laces are made for
-}
n
214
LEAl)I\(J CASES JSIMrLll'IED.
III
coimtessos, jiiid arc as necessary to them as plumairo
to peaeoelvs. If voii liad iiotilied all your nasseiio-ei's
that yon would not carry more than s?l()() worth oC
baggage M'ithont extra payment, or if yon liad usked
the countess the value of jier tnmks, and she had said,
" Oh, not much," it would have been diU'ercnt*, but
you did not, and she was not bound to give you uny
information you did not ask for.
NEULIUENCE.
215
XI Y. — XECiLIGF.>X'E.
IXJURY RESULTIXa FRO.U UNINTENTIONAL
ACCID .NT.
■'.1
BROWN V. KEXOALI^.
[0 Ciish. i".t-'.]
The trouble in this etise cuino from a dog tight.
The dogs of Brown and Kendall respectively were
Hirhtingrand the hitter, in the hiudal)le purpose of en-
deavoring to separate them with the aid of a long
stick, uirtbrtunately put out the eyo of Brown who,
unobserved of Kendall, was standing behind hini.
Brown brought an action, and the question was
whether a person is liable for a purely accidenttd and
unintentional injury which he may do to another.
The court decided in the negative. " The plaintiff,"
said Chief Justice Shaw, " must come prepared with
evidence to show either that the intention was unlaw-
fid or that the defendant was infaidl; for if the injury
'was unavoidable, and the conduct of the defendant
was free from blame, he will not be liable. If in the
prosecution of a lawful act, a casualty, purely acci-
dental, arises, no action can be supported for an injury
arising therefrom."
216
LEADIXCr CASES .SI.Ml'LII'IED.
ONE MUST so USE IITS PROPERTY AS XOT TO
INJURE HIS NEIGHBOR'S.
f
J:
MM,
FLETCHEI5 v. KYI^AXDS.
[;i Hurl. & C. 7'.H; L. H. 1 Hxcli. 2<;.-.; L. IJ. ;5 II. L. ;i;W; 1 Tl-omp.
L(l. ('lis. Noii. 1'.]
Of the modorii Eiiijlisli c:isos, on tln^ l:i\v of ncijli-
genco, this one is iKn-hin)^ llio most important in tlu!
reports. Messrs. Ryliuids &C()., niill-ownors, wiint('(l
a reseivoir on their land, and like carefnl men, eni-
plo^'ed a eompetent enirineer, and first-ehiss u'orkmcn
to make it. Durini^ its construction the workmen
came U[)oii some old vertical mine shafts of the exis-
tence of which no one was j)i"cvion>ly aware. These
thev carefidlv tiUed up with soil. But when the wati'r
came to be put in tiie reservoir, it was just like j)utting
it into an em[)ty Ho\ver-i)ot. It ran through and diil a
world of mischief to the ncMghhoring mines of .Mr.
Fletcher, who instituted legal [)roceedings.
liylands & Co. (Id'cndcd thi; action, iliinking that as
they had em[)l(;yed compctciit i)ersons to construct iho,
reservoir, they woidd not be hchl responsible. But
here thev were mistaken ; they were connxdled to com-
pensate Mr. Fletcher for his damage. " If a person,"
said the court, "brings or accumulates on his land
anything which, if it shouhl escai)e, may cause dam-
age, he does so at his peril. If it does escape and
cause damage, he is responsible, however careful he
NEOI.IOEXCE.
217
may have been, ami whatever [)rec:iuti()u.s ho may have
taken to prevent the dauuige." ^
• Tliere is a difforonco of opinion in tlio Ainoiican conrts con-
cerning tlicjnstness of tliis decision. In some States it is followed
in others it is not. Qnalilled, however, as it has Ijeen by two later
decisions, the rnle in Fletcher v. llyhinds, strikes the writer as uu-
assailaole.
The first qualification was laid down in Nichols v. Marsland,
L. K. 10 Kxch. 2.m; 2 K\ch. Div. 1. Mrs. Marsland was a for-
tunate proprietor of some ornamental lakes in tlie county of
Chester. She had not made the lakes herself. They had ex-
isted time out of mind, and liad always l)orne the character
of bein'.i sober, respoctaI)!e, well-beliaved lakes. But on the
18th of June, 1.S7L', there came a tremendous storm, the like of
which the oldest inhai)itant could not remember. The rains de-
scended, the 11 )ods came, and Mrs. Marsland' s lakes burst, their
fetters, and, in the riot of their new-found liberty, swept into
eternity two or three county bridiies. Nichols was tlie county sur-
veyor of ("heshiri', and brought this action for tlie damaije done. It
was argued for the surveyor, with much plausiljility, that Mrs.
T.Iarsland was in the same position as a person who kee|)s a mis-
chievous animal with knowledue of its pro<)ensities, and therefore
that iiuiuiry as to whether slie had l)een neirliixent or not was need-
less — she kept the lakes at her peril. It was held, howevei', that
as the lakes had been carefully constructed and maintained, and
the downpour of rain was so extraordiiniry as to amount to vis
mnjnr, the county bridsjes niinht build tliemselves up — it was no
concern of the ohl lady's. Shirley's Ld. C'as. L'OS.
Several years after, in the case of Box r. Jui)b, 1 Kxch. Div. 7(>;
L'7 Week. Hep. 41"), the same court held, that for the wrongful act
of a third parti/, which set in motion the damage, the proprietor was
no more responsible than for vis major.
'IS
218
LEADING CASES SIMPLIFIED.
I i^lH I
LI A BILIT Y FOR IXJURIES B Y ANIMALS.
MAY V. BURHETT.
;::;Ji \i-
j. ■ ■ ■ 1
1 • ' ■
* . •'
ifj*
r
[0 Q. R. 101 ; 1 Thoinp. Ld. C:is. N\';r. 174.]
It is rather diuiirerous to keep a monkey, espeeially
if you know that it has a fonuiiess for ])iting people.
Mr. Biirdett found this out after a little litigation
which took place l)etween himself and Mr. Ma}'. The
former owned a monkey, which one day bit Mrs. May.
The husband was iudiirnaut and brought an action
asfainst the owner. The (luestion was whether it made
any difference that Mr. Burdett had not been guilty of
any neijliirence in securini>; or takin<; care of it. The
court held that it did iiot, as " the gist of action is the
heephifj of the animal after knowledge of its miscihiev-
ous propensities:" and Burdett had to pay £50 for
the injury to Mrs. May.'
' The Ihibility of owners of animals for their hurtiuir people is
pretty plain. If a man has a domestic beast, snch as a do;;, a
horse, or a cow, he is not iienerally responsil)Ie for any injury it
may canse. But if he knows that it is of a mischievous disposition
and is lil\ely to do damage, then he keeps it at his i)eril. If he
wants to run no risk lie Iiad belter shoot it at once, for no matter
liow careful he may be, he is answerable for any hurt it may do to
any jierson. Lon^ a-^o a distini;uislied judi^e laid it down that every
doLC was entitled to one bite, l)eciiuso it took somethina; like this to
give tlie owner notice that he was a l)ad do^.
On the otlier hand, if a man keeps a dangerous animal, one
ford' nntune, as the books call them, such as a lion, or a bear, or
a wolf, he is answerabli; in the same manner as the owner of a dog
accustomed to bite. The lion or bear is not entitled to one bite,
for the owner knows from the beginning what his i)et will do if he
only gets a cliance.
NEGLIGENCE.
2li)
SELLING POISON WITH HARMLESS LABEL.
THOMAS V. WIXCHESTEU.
[C. N. Y. ;5'.»7; 1 Thomp. Lcl. Cas. Neg. 224.]
Mr. Thoinas walked one day into a country drug-
store kept by a Dr. Foord and asked the drujrgist for
some extract of dandelion, Avliich the family physi-
cian had prescribed for Mrs. T. The druggist took
down from a shelf a jar labelled " }r Ih. Dandelion ,
prepared by J. A. Gilbert, No. 108 John Street, iV.
Y., Jar. 8 oz.,'' and gave Mr. Thomas the quantity
called for. This the hitter gave to his wife, but with
nearly fatal results, for, as it afterwards turned out, it
was belladonna, a deadly poison, that the jar really
contained. The druggist was quite imiocent in the
matter, for it had been sold to him for dandelion by
Aspinwall, a druggist in New York, who, in turn, had
purchased it as such from AVinchester, a drug manu-
facturer. The latter had not manufactured the extract
in this particular jar, but had i)urchased it, and put it
u[) for the trade and labelled it with (iilbert's name,
who was enq)l()3'ed by him as a clerk. Mr. Thomas
now broui^ht an action auainst Winchester for the in-
juries sustained b}' his wife in taking the poison.
Winchester tried to escape liability on the grounil that
there was no privity between him and the plaiiititf, the
drug having previously i)assed through so many hands.
•' If A," argued Winchester's counsel, " build a
wagon, and sell it to B, who sells it to C, and C hires
3
II
m
220
LEADING CASES SIMPLIFIED.
it to D, wlio, ill consequence of the neirlioence of A
in building it, is overturiuHl and injured, D ciinnot re-
cover diini:ii»e-s aijiilnst A, the bnikler, for A's ohli<>;i-
tion to build the wagon proijerly arises solely out ol'
his contract with B." The court admitted that this
was so, but the present case, the}' said, stood on a
dil'ereiit footinu'. Winchester's lial)ilit v arose, not out
of any contract or privity between him and the person
injured, but out of the duty which the law imposed on
hini to avoid acts in their nature <langerous to the lives
of others. Therefore, a dealer in drugs or medicines
who ciirelessly labels a deadly jjoison as a harmless
medicine, antl sends it so labelled into market, islial)le
to all persons who, without fault on their \y.u-t, are in-
jured by using it in c()nse(iuence of the false label.
And, therefore, Winchester was liable for the injury to
the wife of Thomas.
REMOVIXG SUPPORT OF LAND.
PANTox V. iior.i.Axn.
[17 Johns. '.VI; s Am. Dec. ;i(i;i; 1 Tliomi). Ld. ('as. Ne^'. L'U).}
Panton and Holland were owners of contiguous lots
on Warren Street, in New York City. In the course
of erecthig a house on his lot, Holland dug sonic dis-
tance below the foundations of Panton's house, and
NEGLIGENCE.
221
the result was that one of the corners of Panton's
liouse settled, the walls were cracked and much injury
was done to the buihllng. For this, Panton brought an
action, claiming that he had a right to lateral support
from the land of his neighbor, not oidy for his own
soil, but also for the buildings which he put up on it,
and that, having removed this lateral support, Panton
was absolutely liable for the damages caused thereby.
But the court held that if injury is sustained to a
l)uildiug in consequence of the withdrawal of the
lateral support of the neighboring soil, done with
reasonable skill and care to avoid unnecessary injury,
there can be no recovery, and therefore, if Holland
had not been negligent in his digging, he could not be
made to pay for the damage to Panton's house.
pijiisoxs coMiyrr o.y another's premises.
IXl)Elt3lAUU V. 1)A3IES.
iL. ]{. 1 ('. r. L'74; L. K. L> ('. V. :?11 ; 1 Tlioiiip. Ld. Cas. Ncg. 283.]
Mr. Dames was the owner of a suuar refinei'v, and
employed oik; Duckham, a gas-fitter, to imi)rove his
gas-meter. Duckham got his work done l)y a certaui
Saturday evening ; but it was arranged that he or one
of his workmen should come; on the following Tuesday
to sec it the improvement was working satisfaetordy.
Accordingly, on the Tuesday the plaintitf, Indermaur,
222
LKADIX(} CASKS SIMl'LIFIKD.
ill
presented liiinst'U" !i.s Diickliiuu's i'ei)reseiit:itive to look
lit tlie g;is-nieter. Now it happeiuMJ that on tlie pi-em-
ises, and level with the floor, there was an nnfenecd
shaft nsed for the i)iirposo of hanlingnp ])alcs of sugar.
When tiie shaft was being used for that pnrposo, it
was usual and neeessarv that it should be unfenced ;
l)ut when not being used there was no partieular rea-
son why it should not be fenced. The experienced
case-reader will not be surprised to hear that Inder-
niaur was unfortunate — or fortunate — enough to fall
through this shaft. The sugar peojjle denied their
liability to him, contending that he was a mere licensee,
and that they were under no partieulai- duty towards
him. It was held, however, that he was not a mere
licensee, as he had come on lawful business, and that,
as the hole was from its nature unreasonal)ly danger-
ous to persons not usually emi>loyed on the ])remises,
the defendant was lial)le. The oecu[)ier of i)remis('s,
said the court, is not bound to see that his i)i'einises are
in such a safe condition that a trespasser or a mere
licensee coming upon them, will be in no dauiicr of
breaking his bones ; but with rcspcH't to a i)erson who
has come on lawful business, and on the invitation of
the occupier, it is settled law that he " using reasona-
ble care on his own part for his owi safety is entitled
to ex'[)ect that the o('cui)ier shall, on his i)art, use rea-
sonable care to i)revent damau'e from unusual dauiicr
which he knows or ought to know: and that where
there is evidence of negh^ct, the question whether such
reasonable care has been taken by notice, lighting,
guarding or otherwise, and whether there was contril)-
utory negligence in the sufFei'er, nnist be determined by
a jury as matter of fact."
PI-
NEGLIGENCE.
223
TXJUEIES FROM NON-REPAIR OF BUILDINGS.
TOr>l> V. FLIGHT.
[!> C. B. (X. s.) ICS.]
The late lauiciited Mr. Flight — the luenioiy of the
litiirious is blessed — houiiht a shaky old house next
door to a ehnrch. This he let to Ijeiijamiii Batt, who
had f)cciipied it ))ut a short time when it fell down on
the ehurch. For this injury an aetion was brought
against th(> landlord. ^Ir. Flight tried to make it out
that liatt, the tenant, was the responsible party, but
the court held that, as Flight had let the house when
he knew it to be iu a verv dan<>erous condition, and as
the building had fallen through old age, arul not
through th(! default of the tenant, it was he, the land-
lord, who must pay.'
' Till! 5j;i'iH'riil riilo is that the occupier, ;iiul not liis laiullord, is
rcsi)onsil)lo for any injury urisiui]; to a tlilnl person througli the
IH'emises bcinij out of repair. And it does not niucli matter liow
careful he has been, if he has not succeeded in makin,^ liis premises
safe. A year or two ago a ^ood old woman was toddling down a
London street one afternoon when a lari;e lamp, which was sus-
pended from the front of a house and projected several feet across
the pavement, fell njion her and injured her severely. The occn-
l)ier of the house was tenant under a lease, and a short time before
had noticed that the lamp was jjetting out of repair, and had em-
ployed a competent contractor to put it riiiht. lie thoui^ht, there-
fore, that he had done as much as could be expected of him. lie
tliought wronii. "The question is," said Lrsii, ,T., "what is the
duty of an occupier who has a lamp in the position of that of the
defendant ? Is it his duty al)solutely to maintain that lamp in
1
w
224
LEADIXCr CASES SIMI'LIFIEI).
if'.. ,
i2£*S irS^E LOQUirun — PliESUMPTTOX OF
NEGLIGENCE FROM ACCIDENT.
«YKXi: V. 150A1>I.E.
[2 Hurl. v<: C. 722; Bij?. Ld. Cas. Torts, nTs.]
Olio plcasiint day in July, Mr. Bynio wis walkiiiij:
down ji London street, when a barrel of ilonr fell
^roin a window of a l)nildini; In^ was passinir, ])lnin[) on
liis licad. The suhsefjuent proceedings inrei'estcd Mr.
Byrne no more, he was taken homo in a hack, and it
was some time before he was aI)lo to get out of the
house. When, however, ho had sufficiently recovered
to visit the scene of the accident, ho found that the
buildin<r was occupied bv Mr. Boadle, a. flour-dealer,
and that it was one of Mr. Boadle's barrels that had
kept him at homo so lonir. Mr. Byrne broui^ht !'n ac-
tion at once aijainst the flour-dealer, alle<;iin' that the
proper repair, or to enipl')y a competent person to repair it? I ap-
preliend that tlie wider duty is inciunbunt on tlie occupier." And
so they all api)rehended, and the i)laintiff recovered. Tarry v.
Ashton, 1 Q. H. Div. IHO. But sometinies the landlord is the man to
looiv to. "There are only two ways," it is said in a recent Eni;;-
lish case (Nelson v. Liverpool Brewery Co., 2 C. I'. Div. 210), "in
which landlords or owners can be made liablo in the case of an in-
jury to a stranijer by the defective repair of i)remises let to a tenant,
the occui)ier, and the occupier alone, beiu'^ priinufitric lial)!e, — ■
first, in the case of a contract by the landlord to do the repairs,
where the tenant can sue him for not repairing; secondly, in the
case of a nusfeasance by the landloril, as for instance where h'! lets
l)remises in a ruinous condition." Todd c. Flight illustrates the
second exception. Shirley Ld. Cas. 20(5.
ir»
m
NKGLIOEXCK.
225
latter, by his serviuits, hud so negligently moved his
1);inels as to injure him to the extent of $250 at least.
The llowr-dealei- ohieeted that some evidence of ne<»'li-
gencc on liis part must he shown, but the court held
that from the mere fact of the accident a presumption
of nei:liiienc(! arose. " It is the dutv of iiersons Avho
keep barrels in a warehouse," said Chief Baron Pol-
loch, '-to take care that they do not roll out, and I
think that such a case would, beyond all doubt,
afl'ord prhna facie evidence of negligence. A barrel
could not roll out of a warehouse without some neir-
ligence, and to say that a i)laintifF who is injured by it
must call witnesses from the warehouse to prove neg-
ligence, seems to mo [)re[)()sterous. So, in the build-
ing or repairing a house, or })utting pots on the chim-
neys, if a person passing along the road is injured by
som(!thing falling upon him, I think the accident alone
would l)e priiiKi facie evidence of negligence."
!i
IIESPONSIBILITY OF MASTEE FOR WILFUL
ACTS OF SERVANTS.
3Ic3IAXrs V. CUICIvETT.
[1 East, 10(;; 2 Thoinp. Ld. Cas. No?,'. 8(!5.]
Mr. Crickett's servant Brown had a grudge against
his nciiilibor McManus, and he oii!v waited for a chance
15
n
22(1
LEADING CASKS SIMI'LiriKD.
•t
(;ic::
M
III-
i
to injure one of tlie McMiuuis family in some way. At
liisl an opportunity oHorcd itself. Drivinj^ homo his
master's earriaije oni? evenini; ahont dusU, Brown was
deli<;hte(l to see ahead of him the old I'our-wluieled
chiii'-e ^>f'loniiing to Mr. MeManus, and seated in it was
the owner himself, alone and unatton(h'U. Brown
whi[)ped up his team and (hished right into the chaise,
ui)setting it in tiio middle of the road and landinu" Mr.
McManus on an adjoining door-stej). Brown heing,
of course, an irresponsible fellow whom no eivil judg-
ment would hav(^ disturbed in the least, Mr. M<'Manns
l)rouuht an action auainst Mr. Ci'icUett, claiming that,
although the latter was not present at the time, he.
was nevertheless answerable for the wilful and mali-
cious act of his servant. But the court did not agri'c
to this, l)eeause they said that when a servant ([uits sight
of the ()])ject for which he is employed, and without
having in view his master's orders })ursues that Avhich
his own malice suggests, he no longer acts in pursu-
ance of the authoritv iriven him, and his master will
not l)e responsible for such act.^
* A principal or master is !ins\vi'riil)le in daniajzes for wronyH
coinuiittcd l)y liis a^ciit or servant wliilc uctiui^ al)()iit his l)usiiiL's«s.
This is tlie {general rule. lint in order that this may bo so the ser-
vant must have been actini; in the course of Ids reiiular employ-
ment. If while driviuL? me or driving on r.ij business my servant
neglijtently injures a person, I am liable. lint if the enterprise is en-
tirely the servant's, — if, for instance, he takes his master's carriage
without leave, for purposes entirely his own, — the master is not re-
sponsible. One May Saturday in 18(!1), a wine merchant sent a clerk
and carman with a horse and cart to deliver wine at B., and to briufj;
back a quantity of empty bottles to the ollices, which wore in M.
On the homeward journey, after crossiiJg London Bridge, they
should have turned to the right; instead of that they turned to the
left, and went in the opposite direction on some private matter of
NKOLKiENCE.
227
EMPLOYER NOT LIABLE Fol! XEGLIGENCE OF
INDEPENDENT CONTRACTOR.
HIT^r^IAlU> V. RfCHARDSON.
[3 Gray, ;U;t; 2 Thoiup. hil. Ctis. Ne;;. 8G8.]
Mr. Ric'liiU'dson niiulo iiii Mgroeinoiit with a contrac-
tor ikuikhI Shaw tliat the hitter shouhl inaU(; .some al-
terations on a huihling of his, in CaniI)ri(lgo, Mass.
Tn pnrsnanee of this agreement ono of Shaw's work-
men who was engaged in hauling lumber to the place,
the clerk's. Wliil(! tlius uoiiiLi <iiiite iiiiaiiist tlu'ir orders tliey ran
over a chilil. It was held that the wine merchant was not respou-
sible. Whatman v. Pearson, I.. 15. :{ V. V. 4l'2.
And a master is not responsiljle for the wilfnl and malicious act
of his servant while actini; in his employment, bnt which wilful and
malicious act he has neither ordered nor conllrmed. McManus v.
Cricket t illustrates tiiis exception. The student, however, should
i)e careful to note that this doctrine does not interfere with the
cases where a master is hehl liable for the negligent or malicious act
of a servant, who had no purpose but the execution of his master's
orders. For example, when a master authorizes his servant to use
force about his business, the former is liable when the hitter uses
more force than the master intended he should. A railroad com-
pany instructs its conductors that if a passeuLter will not pay his
fare they are to eject him, nsiiii; force if he will not jjo without it.
Under this authority a conductor demands a faro from a passenger
who refuses to i)ay (perhaps because he has already bousjlit a
ticket whicli he has lost, or for some other reason), and who refuses
to leave the car. The conductor calls the brakeman, and they pro-
ceed to eject him, i)nt in doing so they use far more force than is
necessary and the passenger is injured. For this act, though wil-
ful and malicious on the servants' part, the compauy will bo liable.
JSee 2 Tliomp. Ld. Cas. Neg. 884-890.
!|'
22«
LKAOIXa CASKS .SIMIM.IFIKI).
— u
li-li !
I
vorv lu'ixliilcnlly :i11()\v(m1 soiiio of it lo rcMiii'm in the
street over iiiijflit. The ('oMse(|iieiU'o was timt wiien
Ml". Ililliard drove jilonir llie sti'oet that eveniiijjr, his
liorso took t'ri_i;ht at the [)iIo tiiere, and the; driver was
thrown iVoni his wai^on nud hadly hurt. Hilli.ird
brought an iietion a^jainst Kieiianlson for daniai.''es, Iml
witlioul .snecess, it In'inij; lield that Shaw heini; an in-
dependent eontrai'tor, he, and not Richardson, had tiie
control ol' tijo workman, and it' anv one was liablo it
was Shaw.'
' Tlie law on this subject was very consisoly stated by an emi-
nent Enjilisli jiitljie some ten years a^o. " In aseertaiiiiiifi who is
liable for the act of a wroniJt-doer," said he, "you nnist look to the
wronir-doer himself or to the (Irst person in the ascendinix line who is
theemployer and lias eontrol over the work. You eannot^o further
back and make the employer of that i)erson liable." Wii.i.r.s ,1., in
Murray r. Currie, L. U. C. V. 24. Hut as there art; exceptions
to every ride, we are ])repared to llnd some here; and the student
should note the followiiii^ cases as beiiin the most ini'iortant ex
ceptions to the rule that for the neiilij;ence of an independent con-
tractor the empU)yer is not answerable : —
1. Wlicrr till' cniphnjcr pcrsitnallij intorfi'rrx. The proprietor of
some newly built houses had his attention drawn by a j)oli<' mi ' ■
the fact that a contractor lie had employed to make i dr w had itll
a heap of {xravel by the roadside. Tiie propr' ' ,i he wouli'
get it removed as soon as possible, and pal ..m to cart i'
away. Tlu; man did not do his work thoroii > enouirh, and a
person drivim; home was ui)set and injured. In an acti a by this
person ajiainst the propri<'tor, it was urixed that it wa the con-
tractor who was liable. Hut the proprietor was held liable on the
ground that it did not appear that the contractor had undertaken to
reinovi! the gravel, and the i)roprictor had busied himself about it.
Burj^ess v. Gray, 1 ('. H. .')7S.
2. Where the thimj contracted to he done is unlniofiil. A company,
without the special powers for that purpose which they oujjht to
have had, emi)loyed a contractor to open trenches in the streets of
Sheflield. The plaintiff walkinj; down the street fell over a heap of
stones left there by the contractor, and broke her arm. She suc-
( '
NKOLIOENCK.
22i)
UAinr.iTY or master for injiiiy to fel-
/.nW-SERVAXT.
i»Hii-:sTrj:v v. fowi.eu.
[3 Mt'L'. & W. 1 ; L' 'riioiiii), J,(l. Ciis. Nc'-i. 1)19.]
Fowler w:is!i Ixitcljcr mikI Priestley was his innn. It
was Priestley's intercvstini^ duty to tiiko moat around in
avail to tli(^ various eiistoiners. These seem to have
Ix'eii pretty numerous, for one day such a (juantity of
shouldei's of mutton and rounds of l)e(>f were put on
board that the van Itroke down and Pi-iestlev's thiirh
ceedc'cl in fretting: diunaires out of tlu; company, tlu; distinction be-
ins; clL'iirly drawn bctwoon a contractor Ix'inj; employed to do
sometiiin;; lawful and to do soinetldnj; unlawful. Ellis v. SlielUeld
Gus Consunu'r Co., 2 HI. & IJl. 7<lii.
3. ^Dicrr. the- thiii'j contrnctrd ^< ///■ (Idiu' is jii'i-frcth/ hm'fitl in itself,
hut iujnriiiUH con-Muiuenccs miu^t in the natural cnursn of thiwjs arise,
%inless effectual means to prevent them are adopted. Mr. Robbins, of
Chicago, had let to one lUittou, the contract to biuld a ntore-
liou.se on his lot, whii-li work rcriuircd an excavation to l)e made in
tlie street, tliat if uuLrnarded was ii;il)le to entrap some unwarj'
pedestrian. JJutton after he liad made the excavation neglected
to {juard it, and a iieilestrian fell in, as was to be expected. Under
these circumstances it was lield tliat Ko!)bius was liable for the In-
jury. Robbins r. Chicaiio, 2 Black, 41 s; \ Wall, i\" .
4. 117/(77' the nnph>;i<'r is hound h'j statute to do a thiiuj cjlieiently.
A railroad company were authorized by act of Parliament to inalie
.".n opening; bridj;e over a naviL^abie river. Thvy e;ni)l()yed a ('ou-
fraclor, and that gentleman ingeniously made them a bridge wiiicli
wouldn't open. The plaintiff's vessel was in consequence pre-
vented from navigating the river, and the company were held
responsible to him. Hole c. Sitting Bourne II. Co., (J Hurl. & N.
488 ; Shirley's Ld. Cas. 1'02.
I ii
2;}()
LKADlXa CASKS 8I.M1'LIFIKD.
m
;::;ji
i'l
li-i
'Si
,' ''
r
If
i;f
was (Vactiirod. Tlio hiitxilior boy now bionglit an ac-
tion Mirainst his niastor, hut it was hohl that the action
would not lie. " It" the niastcr ho liahlo to the ser-
vant in this action," said Lord Aiungkk, " tho princi-
ple of that liahilit}' will 1)0 found to carry us to an
alarniinir extent. IIo who is ros[)onsiblo by his <ron-
eral duty, or by tho tor jus of hi3 contract, for all tho
consc(iuoncos of negligcnco in a matter in which he is
tho principal, is responsible for tho negligence of all
his inferior agents. If tlu; owner of the carriage is
therefore res[)onsible for tho sufHcioncy of his carriage,
to his servant, he is •.•esponsiblo for tho negligcnco
of his coach-niaUer, or his harnc >:s-niakcr, or his
coachman. The footman, therefore, who rides bo-
hind tho carriage may have an action against his
master for a defect in the cai'riage, owing to the
negligence of the coach-maker, or for a defect in
the liarness, arising from tho negligence of tlu? har-
ness-maker, or for drunkenness, neglect, or want
of skill in tlio coachman ; nor is there any reason
why the [)rincipie would not, if ap[)licable in this
class of cases, extend to many others. The mastei-,
for exam[)le, would be liable to the servant for the ni'gli-
gonce of tho chambermaid for [)utting him into a dam[)
bed ; for that of the u|)h()lstoror, for scmding in a crazy
bedstead., whei'cby he was made to fail down, while
ash'cp, an<l injure himself; foi* tho negligcnco of the
cook, in not ])ro[)crly cleaning the co[)[)cr vessels used
in th(i kitchen ; of tho butcher, in su[)i)lying the family
with moat of a cpiality injurious in tho health ; of the
builder, for a defect in the foimdation of tho house,
whereby it fell and injured Imth thc^ master and tho
servant by the ruins. Tho inconvonionco, not to say
NEGLIOKXCE.
231
the absurdity, of these consequences airords a sufficient
ariruuient against tlie application of tliis principle to the
present case."
FARWELT^ V. BOSTON, ETC., R. CO.
[i Mete. 4!>; li Thomp. Ld. ('as. Nci,'. !)-'4.]
Farwell was an engineer on the Boston & Worces-
ter llailroad, and one da}*" late in October, l8o7, was
running his locomotive (behind which were several
passenger ears) along the road as usual, when all of
a sudden the locomotive lea[)(Hl from the track, and
after cavorting round in tlu; ditch for some time, came
to a standstill, not, however, until it had broken sev-
eral of Farwell's bones. The cause of this deplorable
accident was, as often happ<_Mis, the negligence of one
Whitcomb, who had charge of the switch, and who
had very carelessly left itoi^Mi. Farwell now sued the
coin[)any for the injury, and the case came l)efore the
Sin)reme Judicial Conrt of Mas.saehus(>tts. "This is
an action of new imi)ressi()n in our courts," said Chief
ilnstice Sii.vw, "and involves a princii)le of great im-
portances It [)res('nts a case where two persons are
in the service and emi)loyment of one company, whose
business it is (o construct and maintain a railroad, and
to employ their trains of c:ii's to carry [)ersons and
nu'rchandise for hire. They arc a[)[)ointed and em-
ployed by the same ('oini)any to perform sejjarate duties
and services, all tending to the accomplishment of one
H!
232
LEADIN(^ CASF'.S SIMPLIFIKI).
I* >
••«•,
1 : '
w
HZ
5!!f
f'5!l
and the same purpose — that of the safo and rapid
transmission of the trains ; and thoy are paid for their
respective services according to the natniv^ of tlieii" rt'-
spectivo duties, and the hihor and skill recjuired for
their proper performance. The question is, whether,
for damages sustained by one of the persons so em-
ployed, ])y means of the Ciirelessness and negligence of
another, the parly injured has a remedy aLrainst the
common employer." This (piestion the court resolved
in the negative, and Farwell was thus unable to obtain
danniges for his injury from the company.'
' It is not often that .i sorvant c:ui l)rin'4 an action a!j;ainst his
master in respect of an injury sustained in tlio course of tlie ser-
vice. He is supposed at the time of onteriuLt on tlie service to liave
contemplated all the ordinary risUs thereof; to have made allow-
ance for tliera in liis waives, and he is not 1)ound to ri-^k his safety,
but may decline to enter into the si-rvice if he thinks there an- too
many danucers. One of these risks, which he is taken to have
contemi)lated, is the risk of one of his fellow-servants c-.i'^am'd in a
common em[)loynient, neitlii!;cntly causin?^ liim an injury; and in
such a case tlu; master could not Ik! successfully sued. Take, for
instance, the case of a railroad accident ha|)penin^ throuy;h the en-
gineer's ne^ilijjence : ev^ry ordinary p;issen,iier who has l)eeu in-
jured can get compensation out of tlie company; but tlw conductor,
brakeman, and the llreman, no matter how innocent of neirliiier.ce,
cannot; they are fellow-servants of the engineer, and engaged in a
common employment.
It is, however, a master's duty to take reasonable precautions to
insure the safety of his servants. If he has omitted to provide
competent fellow-servants, or safe and elllcient machinery, or if Ids
own personal negligence, or that of one who may be regarded as a
deputy-master, or as a servant of the same master but eniiaged in a
different employment, h;is conduced to the aec-ideiit : in sueli case-;
lie is not exempt from liability. Even, however, in eases where
the machinery provided by the master was not safe and t'llici<'iit,
the master is not liable if the servant was e(|iially well awa.'e how
defective it was, and in spite of that knowledge went on working
with it. Shirley's Ld. Cas. lOG.
]Tr
M
I
NEGLIGENCE.
233
CONTRIliUTOU Y NEGLIGENCE.
BUTTE KFTET.n v. FORRESTER.
[11 Kast, f.O; •> Thomp. Lil. Ciis. Neg. 1104.]
Mr. Forrester was u citizen of the town of Derby,
and at the time to which our stoiy rehites was engaged
ill the hiudahle enterprise of enhirging and improving
liis house. This was \\\\ very well ; hut in carrying
out his repsiirs he was guilty of the high-handed and
nnw;irrantal»le act of putting poles across the king's
liighway. Just about dusk oni; August evening, while
the things were in this improper .state, Mr. Butterfield
was ridiiiic home. With reckless disregard for his own
and the liege's safetv, lie went galloping through the
streets "as fast as his horse could go;" and the
reader will scarcely he surjjrised to hear that ho rode
])lump up :'gainst Mr. Forrestiu-'s obstruction, and,
that a moment later, as the poet says (though, if we
ri'incmber light, not exclusively in reference to Mr.
Butterlii'ld ). " there lay the; rider distorted and pale."
Conceiviiiij: with a yreat deal of sense, that the most
ellectual wav of resloriuu; his health would be bv a
verdict and damages, he l)r()Ught this action ; but his
own careless riding was held to be as c()m[)lete an ob-
stacle to his success as Mr. Forrester's pole iiad been
to his horse. "A i)arty,"' said Lord Ellknhouougii,
C. .1., " is not to cast himself ui)on an obstruction
which has bcH'ii made by the fault of another, and avail
himself of it, if he do not himself use eoinmon and oi-
V
i
1 :i
234
LEADING CASKS SIMPLIFIED.
dinary caution to be in the riulit. * ♦ * Qne per-
son boini; in fault will not dispense with tinotliev's
using ordinary care for himself."
«
Hy
HZ
I*-
1;'^
DAVIES V. 3IAN]S^.
[10 Mce. & W. .H5; 2 Thomp. Ld. ('as. Nf.u'. 1105.]
'* The plaintiff having fettered the forefeet of an ass
belon<rin«>: to liiui, turned it into a i)ubli(' hiirhwav, and
at the time in (piestion, the ass was grazing on the olf
side of a road about eight yai'ds wide when the de-
fen(hint's wagon with a team of horses came along."
The waiTon was jjoinu' a <j:reat deal too t";ist, and was
not being pro[)erly looked after by its driver, and the
conse(]uenco was that it caught the poor ))east, which
could n()t get out of the way, and hurled it into that
bourne whence returneth neitlun- man nor donkey.
The owner of the donkey now brought an action
against the owner of the wagon, an<l, in spite of his
own stupidity, was allowc'd to recover, on the ground
that if the driver of the wagon had been decently care-
ful the consequences of the plaintitf's negligence
would have been averted. "Although," said Paiike,
B., " the ass ma}^ have b^^en wrongfully there, still
the defendant was bound to *xo along the road at such
a pace as would be likely to prevent mischief. Were
this not so, !i man miLdit justifvthe drivinijr over ijoods
left on a public hi<;hwav, or even over a man lyinjj:
NEGLIGENCE.
2'db
ivslccp there, or the purposely running iigainst ii car-
liaij,!' going oil the wrong side ot'tlio roud."
The doctrine of contributory negligence is based on
the common-sense nvA^'nw^ volenti non Jit injuria, —
i.e., the man who is the author of his own hurt has no
right to complain of it; his own folly disentitles him
to anybody's sympathy or money. But Davies v.
Mann lays down a very sensible qualification to this
ruhs viz. : If the defendant by being ordinarily careful
would have averted the consequences of the plaintiff's
nc'dijitnce, — in other words, if the regrettable acci-
dent wouhl never have ha[)pened if tlio defendant had
l)ehaved as he ought to have done, — then the plaintiff
is entitled to recover in spite of his negligence.
IMPUTED NEGLIGENCE.
BEXXETT V. XEW JERSEY KAILROAD.
[3(5 N. J. (L.) 1'--'."); Tliomp. Ld. Cas. Ciirr. Pass. 2«1.]
Just where a street-car track and a railroad
track crossed each otlior in Jersey City there was a
smasli-up one day, a locomotive of the New Jersey
Railroad running into a street-car which was attenipt-
inij to cross over. It was not denied that both the
■o
euffinecr of the locomotive and the driver of the horse-
Ij
i)i
H:
II
23(5
FJOAOIXCr CASKS SniI'I.I I IKD .
car wt '.'o <i;uiltv of lu'iiliiic'iic'c. Mr, Uciinctt, who avjis
sitliiiii" ill tlio liitlor voliicN! mL tlu3 liinc, and who was ;i
good deal hurt, sued tho railroad ('()iui)any, and ihc
jury cjavo hiiu $'),()()() damages, Tho conii)any ap-
pealed to the iStipreine (\)urt on the <;round that, Mr.
Bennett had been guilty of contrihiitory negligence
"Where is the eontrihutory negligence?" the court
inquired. " 1 will show you," said the railroad lawyer ;
"the driver of the horse-car was negligent, and :is
Bennett was a passenger tlicrcon, he is so ' identiticil'
with the tlriver as to he responsible for his acts. In
the case of T/toror/oiKl v. l^ri/an,^ tlu; English court
of Common Picas so decided in tlu? year l.S4i)."
But the New Jersey couil very i)ro[)erly rel'used to
follow the English ruling, and the railroad was coni-
pe'led to pay. " I have entirely faih'd to conceive,"
said liKASLKV, ('. ,1., " how it is that the passenger in a
public conveyance Itecomes identitied in any legal sense
with the driver of such conveyauee. Such i(lcntili<'a-
tion eould result oidv in on(5 war — that is, bv eonsider-
' 111 Tliorof^ood r. Hrvuii, s C I{. Ill; (Tlionii). I.d. Cii^. f'iiir.
P.1SS. L'7;ij, tli(-' action was l)y the wifi of Tlioro-jcood, who had lu'cii
killed under I Ik; follow] n-j; circnnisianccs : l\v was a iiassenirer in
an omnibus, in alii,'liting from wliieli Ik; was run over by an onnu-
bus of auollier line bcloniriuL!; to the defi'iidanl. The injury was
the re-ult of the coiieurn lit iieirliuence of both drivers, ami it was
held that this beiii;; so the widow could reco\ cr nolhinii. This ciisc
has been iiineh eritioised bolli by laler ICn^rlisli jndiies and text
writ<'r<. TIk' American courts decline to follow it — oxcei)t in
Pennsylvania. Here is, perhaps, tlie [ilace to warn the student, so
far as the law of carriers is concerned, not to pay ninch heed to the
decisions of the Supreme Court of I'eiinsylvania, at least durinii the
past ten or (Ifteeii years. Tiie renn<ylvania IJailroad ajipears to
"run" that tribunal with the same .success tliat it does its own
trains.
pi
111.'
NEOLIGKNCK.
237
ill'' such driver tlio 8crviuit of the passenger. * « «
The passciiufer lias no control over the driver or agent
ill charge ot'tlie vehicle, and it is the right to control
the ULrent which is the t'oundation of the doctrine that
the master is to Ik; allected hy the acts of his servant.
To liold that the conductor of a street-car or of a rail-
road train is tin; agent of the nnmerons iiassengers
who may chance to be in it, would be a pure fiction."
CONTRIBUrOIiV XEGTJGEXCE OF CHILDREN.
LYNCH V. XURDIX.
[1 Q. B. 2(1; 2 Thomp. Ltl. Cas. Neg. lUO.]
Mr. Nurd in was an egg merchant, and used to send
his servant Avilh a cart to deliver v^jr^x.'^ to his eus-
tonicrs. One day, when the man was out with the
cart as usual, he imprudently left it for half an hour
or so standing by itsolf in tin; street, drawn U[) by the
side of the pavement. While lie was away, sonii* little
children began playing aliout the cart, climbing into it
and having all kinds of games. Amongst them was a
little boy, who may be said to be the hero of this thrill-
iug narrative, aLfcd six vcars. He was in the act of
climbing the step with a vie\v to securing a box-seat,
when another mischievous little beggar pulled at the
horse's bridle. The old horse, obeving its natural
FT
I
238
LEAOINCr CASKS SIMI'LIKIKD.
i^t ',
HZ
master, nwm, moved on, and the little Lynch was
thrown to the irround, and the wheel M'ent over hini.
The child now bronirht an action for (lama2:es ajrainst
the cuiT merchant, and becanso he 2vas a child ho was
successful. lie had done wrong ; he had no right to
get on the cart, and if he had abstained from doing so
he would not have l)een injured. But the care whiih
would have been exi)ected of a man was not to be
asked of so yoinig a child. " The (juestion remains,"
said Chief Justice Di:\max, " can the plaintilF consist-
ently with the authorities maintain his action, having
been at least ecjually in fault? The answer is that
supposing that fact ascertained l)y the jury, l)ut to
this extent, that he merely indulged the natural in-
stinct of a child in amusing himself with the empty
cart and deserted horse, then we think that the de-
fendant cannot be permitteil to avail himself of tiiat
fact. The most ))lamable carelessness of his servant
having tem[)ted tlH> child, he ought not to re[)roa('h
the child with yielding to that temptation. He has
been the real and only cause of the mischief. He has
been deticient in ordinarv care ; the child actiiiij with-
out piudence or thought has, however, shown these
qualities in as great a degree as he could be expected
to possess them. His misconduct l)ears no proportion
to that of the defendant which produced it."
NEGLIOKNCE.
239
CONTRIBUTORY NEGLKiENCE OF PARENT.
HARTFIKI.I) V. KOPER.
[21 Wend. (iir>; L' Tliomi). Ltl. ("as. Neg. 1121.]
One (lay in tlui winter of 1 «;}(!, a cliikl only two
A'CiU's old was j)l!iyiiii^- in the l)caten track of a pnblic
hiirhway, aioiio and nnattondcd. A f^leiizli, williont
bells, tlrivcn i)y Mr. Kopcr, canu^ along ovor this road,
at a luoderato si^'cd, and the driver snceeeded in rnn-
iiiniT over the child Ix'f'oro he discovcn-d his i)rosence.
For the injuries thus* snstained, the child brought au
action against the persons in liie sleigh. He did not,
however, succeed. Though a child ot" such tender
years was incapable ot" using that oi'dinary care which
is required of an adult, and though Iris contributory
negligen«-e could not all'ect him, it was ncverthcles.s
held that the want of such care on the part of liis
parents Avas a sulHcient answer to the action. For a
parent or guardian to idlow a child only two yeai's of
ago to wander and play nnattendcMl on a public road
wa.s clearly lu'gligence, and this negligence furnished
a complete defence to an action by the child for the
iniurv sustained.'
' " TIk' rule wliioh imputes tlio iicjiligoiice of parents to chil-
dren," says Jnd'io Thompson, in liis work on " Neijligence,"
"has received tlie support of suhseiiueiit decisions in New Yorl<,
and of tlie courts of last resort in Massaeiiusetts, Maine, Mary-
land, Indiana, Illinois, (California and Nebraska. On the contrary
it is denied in rennsylvania, Vermont, Connecticut, Ohio, Viriiinia,
Missouri and Alabama that the failure of the parent to exercise
proi)er care over the child, such that it shall be restrauied within
safe limits, can affect tlie child's ri,i;ht of action for Injuries sus-
tained through the negligence of third persons."
240
'
1 1 ■ •
1 ?i n
V 'Mi ?*
■ 'f
LliAUIXO CASES SIMi'LIFIEL).
PROXIMATE AXD RKMOTE CAUSE.
8COTT V. SlIEPIIERl).
[2 W. Black. Wili; 1 Sinilli's Lii. Cus. u-t!).]
Prohiibly no case cxee[)t Coygs v. Bcniavd is better
known to the l.-nvvcr th:in tlio oololji-utcd ♦' S(juil>
Case." It ciinnot bo .said, liowovcr, that its importiUU'e
is equal to its popularity. In days jjono by it served
to illustrate the distinc^tion between the aetioii of tres-
pass and the action on the ease ; but it is now only
worth renieniberiiiir as an authority on the question of
consequential daniaixe. The faets arts well related by
the Apprentice of Lincoln's Inn : — ^
" Facts o' case first. At Milbounie Port
Was fair day, Octobfr tin- twenty and cijiht,
Aud folk ill the market like fowls in a crate;
Shepherd, one of your town-fool sort.
(From Solomon's time lliey call it sport,
Illslit to help holiday, just make fun louder),
Lights me a sfpiib up of paper and i)owder
(Find if you can the law-Latin for't).
» And chucks it, to jiive their tradin;i: a rouse,
Full i' the midst o' the market-house.
It happened to fall on a stall where Yates
Sold friiiLier-bread and {gilded cates.
(Small dama^ie if tlfj shoidd i)urn or lly all) ;
To save himself and said fiiniier-bread loss.
One Willis doth toss the thinyt across
To stall of one Ilyal, who straijiht on espial.
' Leading Cases Done into English. By An Apprentice of Liu-
coin's Inn. London, 187(i.
NIUJLIUENCE. 24.1
Of (liini?»'r to his- wares, of solf-sainc worth,
Casts it ill iiiarl\ft-li()iis(' fartliiT fortli.
And by two mcsno tossliisjs thus It got
To i)iirHt i' till' face of plaintiff Scott.
Ami now ';;aiiist SlicplK'nl for loss of eye,
QiiL'stion is, wlu-tliiT trespass shall lio."
Slieplu'i'd ()l)j(K!to(l that ho Wiis not rcsponsihU> for
wliiit had happened when th(^ sipiil) hail passed
ihronirh so iiiaiiy hands ; hut thoiiuh ho [)ofsiiaded
tho leiirncil Mr. fliistico Bf^ackstonk to aujreo witli him,
tho majority of tho court decided that ho must be
jyrcsuDied to Intre contemplated all the consequences of
his wrong/id act and was answerablo lor them.
I
FENT V. T0I.E1>0, ETC., K. CO.
[.->;» 111. ;U!t; 1 Thomp. Ld. Cas. Neg. 13(5.]
A warelioiise and huiiber yard wore near the track
of tho 'roU'(h> and Peoria Railroad Company, at Fair-
Held, III., a very jjfood situation lor some reasons, and
a bad one for others. One; day in October, l<S(i7, a
locomotives came alon<:", ludchiniji: out great clouds of
thick smoke and liviM'inders. There had boon no rain
in tho neighborhood for some weeks, and so, when
some of the coals fell on tho lumber there was a big
blaze, which was not extinguished until it had do-
vom-od not only tho warehouse; and luml)er yard, but
likewise Mr. Font's house, which was located two
liundred feet from the warehouse, from which the Hre
16
imi' H
!i ' ' • I '
• » ■
IIW
<.i>
242
LKA1)IN(J (ASKS SI.MI'MIIICU.
3
sproiul. The niilroiid compiiiiy could not deny their
n(\ii:liL''<'iu'e, iind e()iise(|iieMlly Wiv'w liability, tor burii-
iiij^" the warehouse and hiniber yard, Init they tirndy
refused to pav anv daiuai:;o lor Mr. Fent's house.
When III' hrouuht an aetion against them, they arjijueil
that, as the house was set on lire, not hy s[)arks from
tlio loeoniotive, hut iVoiu s[)ai'Us from the burning-
warehouse, they wer(! not liable, hecauso-.they were
only the remoti! and not tho proximate eaus(( of the
loss. And what, they asked, will become of Us poor
railroatls if, by a spark from a locotiiotix'e, a house near
tli(! ti'aek catches on llri;, which s|)reads and burns
down Ji whole town, and wo ai'(! made to i)ay for
the whole damajic Hut, notwithstanding this touch-
ing appeal, the coui't decidecl against the company.
" If loss i»as been caused by the? act," said Lawuknck,
C tl., '* and it was, under the circuinstances, a natural
consecpieni'i! which any reasonaI)le person could have
anticipated, then tlu^ act is a proximate cause whether
the iiouso burned was the lirsl ortln^ tenth — the latter
l)eiug so situated that its destruction is a conseciucnce
reasonably to be anticipated from settiui; the first on
fire." As to the second point , tlu; court was unable
to see the force; of an arguin(>nt which proceeded U[)on
the assumption that it was l)etter to distril)ule a great
loss among a hundred imioceut victims tlian to visit it
all on the wroui^-doer.
JIISCKLLANKOL .S TOUTS .
243
Xy. MlS("KLLANK( >rs ToRTS.'
NUJ>iAy(E^.
HT, iiEi^i']X's s:ni':i/ri\<i co. v. tippixg.
[11 II. L. Cas. (:»:.'; Hi;i. I-d. Ciis. Torts, ■[:>[.]
Mr. 'rii)()iiiLr, of Liuic-isliiro, iiiiuiircstcd his ohjoc-
tioiis to siiioko ill a vcrv practiciil way. IlaviiiiT pui'-
chased a housti an«l grouixls .situated within a short
(h>laiiee of tlio woi'ks of a copper .siiielting c()mi)aiiy,
he found very soou that to live ir. that, re<j^iou was
suuply out of the (piestiou. From the tall chiuiueys
of the works smoke and no.xious va[)()rs issued uiirht
and day ; it injui'ed his trees and shrul)l)ei'y ; made his
("ittle sick, and rendered his own e.\istence intohu'able.
.Mr. Tippinir therefore^ resoi-ted to an action for
damaires. The company pi'oved that the whole neigh-
borhood was stud<led with manufactories and tall
chimnevs ; that there were some alkali works clo.so to
their own, whose smoke wa.s cpiite as injurious as theirs,
and that the smoke of both sometimes united, making
it impossible to .say to which of the two any |)articular
injury was attributable. Thev also relied on the fact
' A tort is an injury wliicli involves no broacli of contract.
i
: )
'i'
f'
244
rj:AI)IN(J CASKS SIMI'MI'IKD.
thiit their work>< liiul cxisicd boforo the (lot(Mi(l,iiit
boiiirlit his ])r()[)('rly, Xcvcrthch'ss, Mr. Tippiii;; n-
0()\('ri'(l £.'{(!! (l.imaiics, iuid aUh()m;li tho ronipniiv
C'iirricd the ('ms(» all the way to the House of Lords, ;i|j
th(! judires thouiiiit him entitled to the verdict.
" In inattersot"lliisdcseripti(ni," saiil Loi'dCMiaiu'ollor
Wkstiuky, " it appears to me that it is n veiy desirable
thini.': to mark the d'/leretieo lu'tween an aetion bronjilit
for a iujis;mee upon tlui jrronnd that the alle^red niii-
sauce proihu'cs nialerial injury to tlu? propei'ty, and an
aclion brouirht f'oi' a nuisanco on the iiround that the
thing allegcil to l»e a nuisance is productive of se:«>;il)lc
personal discomrorl. With regard to the latter,
namely, the [x'rsonal inconvenience and interf'ei'cnce
with one's enjoyment, one's (|uiel, one's [)erson:d
lVe(!dom, ar.ylhing that discfrmposes oi* injuriously
allects the sens(>s or the neives, whether that may or
may not be denominated u nuisance, must undoubtedly
depend greatly on the eii'cumstanci's of the place
where the thing complained of actuaily occurs. If a
man lives in a lo'.n, it is necessary that he should siib-
j(>ct himself to the consecpiences of tho>^e opei'ation^
of trade which may b(^ cariiecl on in his inuneiliatc
loca.iity, which ai-e actually necessary for trade and
cc'/UHnerce, and also for the ( njoyment of properly,
•ind foi' the benelit of the inhabitants of tln^ town and
of i he public at large. If a man livi>s in ii street
wiicre 'her(^ are nmnerons shops, and a shop is opeiic(|
next door to him,whi(h is carried on in a fair and
reasonable way, he has no ground f(M" com|'laint, be-
cause to himself individually there may arise much
discomfort from the irad(> carriecl on in that shop.
But when an occupation is cari-ied on by one person in
J
1J
MISCELLANEOUS TOUTS.
245
the noigliborhood of iuiothcr, and tlio result of tli;it
tratle, or oecup:itioii, or husiiiess, Is a material injury to
property, then there uuipiestionaMy arises a veiy dil-
icrent consideration. I think, i )y lords, that in a ease
of that descri^jtion, the submission which is recpMred
from j)ersons living in society to that amoinit of dis-
comfort which may be neeesstiry for tlu! K-gitimate and
fret; exercise of tlu; traiU; of their ncighboi's would not
apply to the ciri-nnistances, the immediate result of
which is sensible injury to tlu vulm^ of llu! property.
And the judges hidd, also, that th(> fact that tlie local-
ity A\hcre the; olleusive trade was carric(l on was oio
generally em[)loyed for tlu^ purpose; of that and >imilar
trades, would not exempt the com[)auy from liability
to an action for damages in respect of. injury created
bv it to propertv in the neii^hborliood.
11.. ., v_
FALSI'] lii'jriiijsKxrA rmys.
i»Asi.i:v V. I Ki:i:>iAX.
[;i Term Ut'it. .")1 : i' Siiiitli's Ld ('as. 157.]
Paslev was a i)er>on who dealt in that curious ex-
poi't of Mexico, cochin(>al, ami wantt'd a [lurchaser for
!i (piantity lu^ had on hand. Ilappeniugto maki- known
his want to Freeman, that worthy instantly said he
r ~
;:■) :;
24(5
LKA1)IN(} (ASKS SI.MPLIFIF:1).
knew somebody who would buy the cochineiil — a Mi\
Faleli. " Is he a resi)eet:ible and siibsianli.il person?"
asked PmsK'v. " Certainly he is," answered Freeman,
well knowinuthat lio wasnothin*; of the soi't. On tli'
laith of this re[)resentation, Pasley let Faleh h:i\ -i
teen baj^s of eoi'hineal, of th(^ value of nearly X.'l.ooo.
on credit. Tt then turned out that Fah-h was a man of
straw, ami as Pa^^U'v had not thi^ remotest prospect of
gettinu:; the .''. >,()0n iVom him, lu; sikmI Fi-eeman for
" telling !i iie,*' and got his money that way.
The fourth section of the Statute of Frauds, enacts,
amongst other things, that a i)romise to answer for the
debt, default, or miscarriage of one of your friends,
must be in writing, or it shall not bind you. Why,
then, was Freeman lu'hl liable? The a.iswer is that,
whereas tin; section refers exchisively to cnntracf^, Pas-
Ic}'' sued Freeman in (ovf -, and tho principle allirnn^d
in tho case is, that " wlierevi'r deceit or falsehood is
practiced to tlu; detriment of another the law will give
redress." And it is no defence to an action of this
kind that the defendant had no intei'cst in and was to
j;ain nothing from telling the lie.
The Ap[)rentiee ot' Lincohi's Inn thus renders this
memoralde (U'cision : —
It was Piislcv t'aitK! with !iis fdaw
tt» Loiitloii town with wart's io sell,
sixteen buiis of tin; lliu; eo(!hineal,
for buyers wlio should like t',iem well.
Stood up a l)U.ver and spokti so fair;
Jolni (;hristo|)li(!r Falcii lie liad to name:
" liiiilit well ine liketh tlie eoeliiiu-ai line,
uud I will freely buy the saine."
MliSCKLLANEOL'S TOUTS.
247
" If ye !);• fain to l)iiy our wares,
we must >,ol, one lliiiiLT or I'li' we sell ;
yo sliall ilo us to wit if yo be of worth,
a man to trust ami credit well.
" For but and the silver ami jrold were paid,
this (lay were a day to rue full sore :
two tliousand poiiud is not the wortli,
nor if ye tell six iiiiudred more."
Joseph Freeman stood up and spake:
" I rede you let tlie wares be sold,
John ("hristopher is a man of trust
for the white silver and eke red icold."
They have i;i\en their wares to John (-hristopher,
and set him a day to |)ay in han<l ;
John Christopher's lied o'er tlie wan water
and left no jroods within tlie land.
Pasley is wo\en as a man wood,
to sit still liini seemed uolhiim meet;
said, We'll up and sue tins falsr Freeman,
t ) do u- riLtht for his deceit.
There was (irose the one justice,
said this was but a lewed thinii,
for wliere .\e I. ml no word of promise,
no action I'eth for l)are h^sin;;.
liuller, was th' other justice,
said, Hero is a ilaina;ie and deceit;
wiiere by word of man lie coiuen tlioe twain,
the third is, to rcpiite ins cheat.
Ashliurst w.is the tlur,i justice,
said, Thouijh Iv .^ain not by tlie lie,
liis ma!,i e is yet more curst of kind
than if he had lioiie to win thereby.
I.ord Ivi'.NYi>\ was the chief justice,
.^•Md, Full little is l.'ft to tell;
but the fraud was plain a-ul eke the loss,
and I hold this action lieth well.
ir
llji! !
iw
■' ,«-.
¥
i:
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i;'
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It"''
i^'
*•»•
,^.ii
II
248
LKADINO CASKS iSIMl'I-IFIKD.
So Paslov won tli;it oauso as llien;
but iiKTcliants liad tluTcof affi'iirht,
ami liavc letteii onlaiu in Parliament,
sui'h words sliall have no harm no might
to hold oML- Ixvnnd for his fidlow's trust,
but if thev l)e written in black aud white. *
i.AX(;!{ii)<ji-: V. i.Evv.
[■-' .Mi'c. .v \V. :.i;i: I id. ;;:i7.J
Mr. LiiMo;ri(li>\' .sciiioi", w.ilkiiiLT oiu; d.iv down the
streets ofUristol, noticecl ;i 1:1111 in ii slioj) window with
the foUowiiio- seduetivo udvertiseniont lied round its
innzzle : —
" Warranled, this (deirJint twi>t oun ])y Xofk, with
case e()ni[)Uite, niaiU' for his late Majesty Georgo IV. ;
cost (50 guineas ; can he liad for 2')."
He enteriMl tht^ shop, which was the defeiKhmt's,
and tohl him ho wauled a nice, (niiet, steady-going gun
for the use of liimsi-lf and his son. Finally, he bought
the oloL'ant twist-irnn, as warranted. Now, wi* reoret
' Pasloy r. I'^n'oiniiu was substantially if not iu form a viohuion
of tlic Statute of Krauds. Viewing it in tills liglit, Parliament
passed an act in tlio ninth year of Ck'orge tiie Fourtli's reign, which
provided that no one wlio had eulogized anotlier's " eliaracter, con-
duct, cr(!dit, ability," etc., in order to imluce people to trust liim,
shoi'id 1)0 lial)Ie to an action for faNo representation, iiule-s his
eulogy were i:i writiugand siiiiied by him. Tliis is g<'iierally l^uowu
as I.,ord Teiiderdcii's act, so named after its autlior, and it lias
been coi)ied into tlie statutes of at least ten States of tlio Union.
See Browne on Stat. Fr., sect. LSI,
MISCKLLANKOUS TOUTS .
2 49
to say, this warninty was false and iVai'diilt'iit , Id the
(Icrondant's Uiiowlcdg;', and, slioi-tly al'icr t!u» purcliaso,
OIK. of tlu; voiinu^ Tj:inii"!'idp's was n-inii" (lie uuii in a
[xTfcctly fair and spni'lsnianlikc nianiu-r wIhmi it hurst
and hlow oil" his hd'l hand.
It was lhi> victim of Iicvy'> dishonest v who now
hrouLdit an action aLrain^^t him, ami the chii'T point re-
lied on hy the defendant's counsel was that, if any
one had a I'i'iht to hrii'.u' :»n action, it wa>: the father,
to whom the ii'im had hcen ->old ; as for the ^on, they
said, there was no privity of <'onlraet hetwi'en him and
llm L''Ui\.smilh. 'IMiisdet'ence, how(>ver, did not suce(M>d,
and the yo4ilhi'ul L;mLiridir<' j2ot as much consolation
as money eould liive him for the loss of hi-^ hand.
The rea.son of lliis result was thai Levy had hcen
iXuiltvofa tort iii makin^i' a false re|)re>entat ion. If
he had made c.o lal-e rei)resentation he W(mld have
oid\' l)een lial)h> to the father for t he hi'cacli of con-
tiMct. As it wa->, he was held liahle to the son, who
eonli(le(| in tlu^ representation, and wh(), he knew, was
goinif to use it. Said liai-on I'akki:, who delivered an
e.\haustive iud'j,inent in tln^ Court of Ivxehecpier : "It
tlie instrui lent in (piestioii which is not of" itself dan-
gerous, l)iit which reciuircs an act to h(> (h)ne — that i.s,
lo he loaih'd — in oilier to makc^ it so, had l)een shn-
j>/>/ delivere<l l)y the defendant, wiihojit any eontraet
or representation on his part to the plaintitl", sio action
would haveheen maintainahle for any suh-ie(|uent dam-
ag(! which the plaintitl' might, have sustained l)y the
us(« of it. Ihit it it had heen delivcretl hy tiie (lefend-
;int to tilt! i)laintiir, for tlu^ jnu'pose of being so used Iji/
///III, with an accompanying re[)resentation to hini that
lie might s(tfrhj so its<' t'f, and that re[)resentation hud
T
I
4
I'i
II
2;")0
l.K.\ni\<^. CASKS SIMl'MFIKD.
i)tMMi /(//.sv /o ///'' (/(ft'iuhinf's huioivlethfr, mikI the plnin-
tiH"li:iil i.i'tcd ll|»n|i lli(> f;iitll of its Ix'iii;^ Irilc, ami li.'dl
/ec'civi'd (l;i!n;iL''i' tlic:'(»I>y, lIuMi tluTci is no (iiicslion
but th:it !iii iU'tioii would Irivo lain, u|)()ii tlio i)i'iiifi[)l(!
ot'.'i iitiincroiis class of cases, of wliicli tho Icadiiii^ one
is that of PaH.]('ii \ . FvcciiKiti , which principle is thai
a mere naUci] falsehood is not enonuh to ij;ivc a ri^lit
of action; lust if il l>e a falsehood told with an inten-
tion that it shouhl Ixi ai'teil ii[)on hjMhi! i)arty injuretl,
and thai ai-t nnisl pivxhico thunajjfc to him ; if, instead
of heinii- d 'livered to the plaintiff inimediatoly, tin; in-
stnmieiil had heeii placed in the hands of a thircl pei-
son, ('),• llf puvpnsi' of licliui (h'livi'i'cd to dud tlcil m^nl
hij (he i)hi!itlitf\ the like false reni-e-icnt a; ion hein"'
knowingly made to the intermedia (5 [)ers<>n, to l>e
commnnicali'd to the plaintilf, and tlu^ plaintilf hail
acted upon it , there can \n\ no doubt but, that the prin-
ciple would ecpially a[> [)ly,and t he plaint ill' woidd have
had his i-emedy for tlu! deceit ; nor could it make any
ditferencci that the third person <iI.-<o was intende(|
by tho deiendant to be deceived ; noi" does there seem
to be any std)stanlial distinction, if the instrument he
dt'livt'i'cd in oiiler lo l»e so used by the plaintilf,
thoUL'h it dot's not apjx'ar that the delendant intended
the fals(> representation itself to !)e comiu.uucale<l to
him. There is a false r"presentalion made by the i\v-
fi'iidanl, with a \\v\\' thaf (lie phiiiiUlJ' s/tonii/ iis'' ///r
iitsfrtoufuf m a dani!"erous way, and unless tlu; repre-
sentation had been made, the dangerous act would
never liave been done."
MISCKLLAN lOUUii TOUTS .
i'n
lUGIITS OF FfXDFUS — POSSESSION- PRE-
suMrriox.
AitMoiM V. i>i:i..vMii{ii:.
[1 Slru. :)()(; I Siiiitli's Ltl. ('lis. 171.]
X voutlil'iil cliimncv-swi'i'i) \\;ts lortuiiMto (miouHi to
find ;i wvy v:iIiim1)I(' jewel. Vnil or I, li;ul we foiiiul
>iicli :i Irciisiirc, mi^ht li.-ivc .•idvcrl isrd it in the iicws-
l);i[)('i's. \(>l so our voiii)<r iVi,. 11,1. \\y his Ii«:nt.s Uncl-
iiiij;- \v;is kccpiiin-. Mini he looU it to :i Jeweller's to iis-
certiiiii its viiliie. 'rii(> jeweller, taking- Mtlvuntairo of
tlu! hoy's simplicity, told hiin it wms a riil)l>ishv lliinir,
and oll'ered liiin tiiree Iiall-peiiee for it, — a imiiiilieeiit
( ll'er which the lad decliiuMl without thanks, and de-
Hiaiidcd liis [)ri/e hack.
" Vur all his words tlicv -rave hiiii for llie nones
Tilt' sockt't empty ami wiilioutca stones,
Ami laiii^li upon liiiu and fiun call liiia thief:
Therefofe fall wisely telleth he his m-ief
To men of law, which answered him anon."
And wh.at the men of law answerc(l him anon was to
tliis ctfect : '• Vot; have fairly fomid this jewel, and
nobody c.xcopt the real owner has a bettor title to It
than yotii'self ; till he shall tippear, you may keej) it
against all the world, and maint-tin trover for it.'' '
' The tinder of a ehattel stands in the shoes of the real owner
nntil tliat person t!;rns np. 'I'herefore, it Smitli should Mud a watch
on Monday, and on Tn-'sday lose it, and -tones tind it, this tiaie,
Smith could n-cover it from Jones, if the original owner was still
fn
252
LKAIJINO C;,\Si:S HI.MI'LiriEl).
Ilavinir settled this i)()iiit, the JikIu'cs mow turned to
tlie vnliie ol" the Jewel. The jeweller liild refused to pro-
duce the stoue, and so several oi'thi' trade were exani-
iiied as to the value of a Jinvel of th(^ Inicst water that
woidd lit th(! euiptN' socket, and it was held thateverv-
thinii- would \)e presumed airaiusL the jeweller, and
that the chininev-swee[) should have the value of the
very hest jewel ol' the si/e taken, on the [)rinci[)h! of
the maxim (iiiinia jincsuniuiifur {ipolUitort'in — every
presunii)tion is madi; to the disadvantage of the wrong-
doer.
'' ixjfin'" wiTiiorr damage.
ASiiiJV V. WIIITl!:.
[Ltl. Kiiyiii. '.cis; 1 Smith's L.l. Cus. :UL'.]
Ashhy l)r()Ug!it an action ai^aiust th<' olHceivs of an
clei'tion foi' refusinu' to receive his vote. 'V\n\ candi-
dates for whom h(! intended to voh; were elected ; l»ut
in spite of this, and althouuh he had sustained no
unknown. But thi' cliirf |)oint on wliicli the wrll-known c.-isc of
Armory v. Dclaniiric is an antliority, is as to wliat is suilicicnt toon-
able a person to maintain an action of trover. It is not merely lIic
person in wiiom resides the riijlit ui propcrtij whocan maintain sncii
an action. The chimney-sweep had not that riirht. It was all
alonir in the person who had lost tlie jewel. .VII the ehiinney-
.swct'p had was the rii;ht of jhjssessioii, l)ut it was considered that
J
MISCELLAXKorS TOI!TS.
2r)»
IV tunu'tl to
"used to pro-
wore cx:un-
t wiitor tliut
I that cvcrv-
•wcIUm', ami
s'aliic of t lit'
l)i'infil)li! of
''>'in — cvciy
f the wroiig-
(iE.
act Hill <laiuag(', It was licld linally that such an ad ion
could l>o maiiitaiiuMl. Chief dustico Holt in this case
covered himself with irlorv as with a cloak. He was
unanimously overruled in his own court. •* My
i)i-()thers," said he, " dilfer from me in o[)inion, and
tiiey all (lill'i'r fi'om one another in the; reasons of their
opinion, hut notwithstandinir their opinion, I think the
plaintiir ouirht to recovei-. * * ♦ | y^\\\ ,|,, ili,.so
two thinu's. Fir>l, I will mainttiin that the plaint ill' has
a riirht and nrivileire to irive his vote, Secondlv, in
oil* •■
consecpience thei'eot", that if he was hindered in the
enjovment or exercise of that riirht, the lawuives him
an action airainst the distuj'her and that this is the
proper action <^\\vu l»y the law." The Chief Justice
maintained these two propositions so well, that when
the case went to the House of Lords, the majority
o[»inion in his own court was overrule(l, and Ashhy
was trium[)hant.
olHi'crs of an
The candi-
el(M'led : hut
sustained no
l-kiiowii case of
■i sMiricicnt to eii-
!■< not iiu'i't'ly i-lio
in iiiiiintain such
uMit. It was all
Ail tiiv' chiinncy-
s cousidorc'd that
DAMAdi: wrriiorr - is.niiY."
ciiAsimoin: \. ishiiaiids.
[7 II. L. ("as. ise.l.]
A town cannot easily have too L'ood a sup[)ly of
water, and no doiiht the Boaid of Health of the town
that was rpiitc a sn(IU-iciit foiniilation for an action of trover as
ajjainst a mere wrou'^-docr. On tin- same principle (vi/..: that
mere posse.ssiou is sulllcient as against i\. wrougnloer) rests a well-
254
I.KAI)I\(f CASKS SIMrLlIMKI).
%
u
■ )
.1
1
■
,1
••«
u to
>**
:■?
of Crovdon wciv i)iil>li(i iKMiofartors when in tlu' \v;\\
1851 llicy s.'iiik :i sijltstaiitial woU sind supplicil lli(«
good pcoj)])^ ol' Ci'ovdon with pure wiilcr at tlio rale of
six luindrcd llioiisaiid i:aIloiis a dav. W\\\ \\w public
iiaiii was Mr. CliasiMiiorc's loss. Tliat irciilicinaii was
tlio occupier ol' a iiiill situated on the river Waiidlc
{xbout a mile iVoni (^'oydoii, and had — he and his
jiredecessors — used the river lor the last seventy
years for turniiii:: his wheels. It may well he imaiiinecl,
therefore, that he was extremely disgusted to find that
the elfect of what tlu^ Hoard of Health had donif was
to j)revent an enornjous (|uantity of water from
ever reaching the AVandle or his mill. The miller,
tliey say, wots not of all tin; water that goes hy his
mill. Very likely. r)iit ('has(>more wotted of a good
deal of water that did nnf go hy his mill, and went to
hiw. Unfortunately, however, he was not successrul.
The judges told him that, though he was very much to
be symi)athize(l with, lu^ had no legal remedy. Thi-re
was damage {(hnmunn) l)ut not injury {iiij'iirid).
This ease and Ashhi/ v. ]V//ifr illustrate the distinc-
tion between what the lawyers call hijiwia s/iic (hnuiio
and (hnuuHiii sine injuvla ; /.'\, injury Avliere there i>
no damai^e, ami damage where there is no iniurv. If
a man can show the former h(> is all I'ight — he mav
rely on getting some recompense at the hand of the
law ; but if he can only show the hitter, his case is
hopeless. Wherever a jierson has sustained what
the law calls an " injurv," there he maA' ])rinu' an ac-
known rule in actions of ejoctinont, namely, that the plaintiff must
recover by the strenjith of his own title, and not hy tlic weakness
of his opijonent's. Possession, as to the popular adage has it, is
nine-tenths of the law.
MISC'KI.LANKOl S lOUTS.
2.').')
II"
lloii willioiit Ix'injjj mulcr tin* upccssity (if pi'oviii^
spcH'iiil (iMiiiMirc, lit'ciiiisi! ilu' iiijuiy ilsclf is t.iUfii to
imply (l:iiii;i;_''('. A Icinkcr once (iislionorcil tin? cIh'cjuu
ot" !i customer who really had |)leiity ol' money in tiic
l.anU, and the customer thereupon Itrou^ht an action
ai^ainst him. It was held that the action was main-
lainahlc, allhoiiirh the plaintill' had not sustained any
jo-s whatever Itythe l>ankei'"s wroniiful act. There
was no i/diiiiiKia, hut. there was tnjiiriii, and tliat was
(juilc sullicii'ul.' Such was Mr. Ashhy's case; he
could show 1H> '* damauc," l)ut he had sustained an
•* injury "" and hence his a<lion was allowed.
On the other hand it is not everythin<;' that tlu; law
Inands as an •' injury."" Thi* most terrible wroni^s
may he inllicted I>y one man on another withouL re-
di'i'ss heini:; ohtainalde. It' you are driving a llourish-
ing trade as a s<'h()olmaster, and I come and set up a
school just oi)p()site to yours, and the Ijovs desert you
and ilocli to nu', there is no "injuria" here, even
though I may have turneil schoolmasti-r for the express
l)urp()s(; of ruining you. It is ddimnan .'<iiie injuria,
and you hav(^ no rigiit ol' action against nn*. Mr.
('has«Mnore"s I'omplaint was one of I his kind; he had
sulh'rcd damage enough, a good deal more than Mr.
Ashhy had, — hut there was no legal "injury" to
him, in what the Hoard of Ileallh had done.
' Marzotti y. Williams, 1 liani. .<: AiloUlJ.
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256
LEADING CASKS SIMPLIFIED.
''A-
TJiESPASS:
•i^i
THE 8IX CAUPEXTERS' CASE.
[8 Co'- !•*(!; 1 Smith's Ld. Cas. 217.]
It w.'is Oil a v/:i-iu Sopteinber afternoon in the early
days of James ti'^ Fii'st, that six thirsty carpenters cn-
teretl a London tnvern, called the waiter, one .Tolm
Ridding, and " did there bny and driidc a qnart of
wine, and there paid for the same." Mark that, gentle
reader, they jiciid for it. l>nt a (jnart of wine does not
20 far with six lustv workin<;men, and the reader will
scarcely bo surprised to hear that, lik(; Oliver Twist,
they asked for more. The waiter accordingly brought
thetn " another quart of M'ine and a ])enny worth of
bread, amounting to 8d." Whether the worthy pub-
lican acted on the princi[)le that when men havi^ well
drunk they will be satistied with any [)oison, or what-
ever the reason may have been, when the banfjuet was
over and the reckoning came, our friends stoutly ri'-
fiised to pay. For this indignity the landlord brought
an action of trespass against the whole six, iin.l the
question now was, whether this non-payment made
their original cntr3Mnl() the tavern tortious ; in other
words, whether it made them fre. ^^a <<■<<(' rs ah initio.
This (piestion was decided in the negative, the judges
holding that mere ?/o?i-feasance is not enough to make
u man a trespasser ah initio. Two thinirs, thov added,
must always concui' to make a man a trespass(U' al)
initio: first, he nmst be guilty of wa'.s-feasance ; and
MISCKLLAXEOL'8 TORTS.
257
'1
o
the
itio.
lake
led,
ah
iuul
secondly, the iiuthority he Jihuscs must bo one p:iven
him by tlie laio uiid not l)y an in Mvidual.
The authority these g(>ntlemon abused was clearly
one conferred on them hy the law. The law <2;ivcs
every man a right to enter and take his ease in an inn,
and if they had been guilty of misfeasance {e.g.-, if
they had broken mine host's glasses or his head) they
would have been trespassers ah initio. But they were
only guilty of no7i feasance, viz., of declining to pay
for their liquor. The reason wliy misfeasance does
not make a man a trespasser ah initio when the author-
ity is conferred by an individual, would seem to be
tliat those who voluntarily give powers can limit or
recall them as tliey please, wliile the abuse of powevs
given l)y the law needs a more stringent protection.
The " Apprentice of Lincoln's Tun " has turned the
Six Carpenters' Case into poetry, with what success the
readei* may judge from the following: —
"This case befoU at four of the clock
(now ILstcuctli what I shall .say),
and the year was the seventh of James the First,
on a fine Septeml)er day.
The birds on the bouuih sinji; loud and sinj? low,
what trespass shall be ab initio.
It was Thomas Newman ami live his feres
(three more Avould have made them nine),
and they entered into John Vaux's house,
that had the Queen's Head to sijin.
The birds on the boush sing loud and sing low,
what trespass shall be ab initio.
They called anon for a (piart of wine
(they were carpenters all by trade),
and they draidv about till tlu'y drank it out,
and when they had drunk they paid.
The birds on tlic l)ough sing loud and sing low,
what trespass shall be ab initio.
17
:m
^\
258
LEADING CASES SIMrLlEIED.
,*"'..,
k
One spake this word in John Ridding' s ear
(wliite mancliets are sweet and line) :
"Fair sir, we are fain of a penn'orth of bread
and another quart of wine."
Tlie birds on tlie bougli sing 1* ud and sing low,
what trespass shall be ab initio.
Full I'ghtly thereof they did eat and drink
(to drinlv is iwis no blame).
"Now tell me eight pennies," quoth Master Vaux;
but they would not pay tlie same.
The birds on tlie bougli sing loud and sing low,
what trespass shall be ab initio.
**Ye have trespassed with force and arms, ye knaves
(the six be too strong for me),
but your tortious entry sliall cost you dear,
and that the King's court shall see.''
The l)ii'ds on the bough sing loud and nought low,
your trespass was wrought ab initio.
Sed per totam curiam 'twas well resolved
(note, reader, this difference)
that in mere not doing no trespass is,
and Jolin Vaux went empty tlience.
The birds on tlie bougli sing loud and sing low,
no trespass was here ab initio.
I*'
IT
•5'?.
I)'.
n
POWERS OF SHERIFFS.
SEMAVXE'S CASE.
[5 Coke, !)1 ; 1 Smitli's Ld. Cas. 183.]
This case is the principal authority for the old
saying that " a man's house is his castle."
MISCELLANEOUS TOUTS.
259
old
Berisford and Greshtim Averc two gay young sparks
of the sixteenth century. Thov wore ureat chums,
and lived together in a house at Blackfriars, of which
they were joint tenants. Berisford, as in the manner
of gilded youth, plunged deeply into debt, and one of
the largest and most pressing of his creditors was a
iientleman who mav or not have l)een his tailor, a Mr.
Semayne, to whom ho " acknowledued a reeojxnizance
in the nature of a statute staple ; " — a ceremony which
would be prettv nnioh like a Berisford of our day siv-
ing an I. O. U., or otherwise coinmittiug himself on
paper. In these impecunious circumstances, he wrs
lucky enough to die, and, by right of survivorship, the
ownership of the house in Blackfriars became vested
in the bereaved Gresh; n. Now, in that house were
" divers goods " of the late l\Ir. Berisford, and to
these, in virtue of the little formality of the statute
stajjle, Semayne not unrcasona!)ly considered himself
entitled. Accordingly, ho gave instructions to the
sheritts of London to 2:0 and do the best thev could for
him, and those functionaries, armed with the proper
■writ, setort'for Blackfriars. But, when they came to the
house, Gresham, who had an inkling of what they had
come for, shut the door in their faces, " whereby they
could not come and extend the said goods." It Avas
for thus " disturbinn' tlie execution," and causing him
to lose the benefit of his Avrit, that Semayne brought
this action. ]Mucli, however, to his surprise and dis-
gust, he did not su(;ceed, for the jud- es said that Gres-
ham had done nothiuii; wroni; in locking the front door.
And they resolved that the following was the law of
the land on the subject : —
1. The house of every one is his castle, and if thieves
i fn
i\- !
260
LEADING CASES SI.MPLIFIKD.
-I
Pi
I*.
come to .'I man's house to rob or inunler and t'ne owner
or his servants kill any of the thieves in defence of him-
self or his house, it is no felony.
2. It is not lawful for the sheriff at the suit of a
connnon person to break into the defendant's house iu
order to execute any civil process — the defendant's
house is his castle.
3. A man's house is not his castle when the king is
a party, — i.e.. when the man is wanted for a fc\)ny or
misdemeanor. But even then, before tlu; onto, door is
broken open, the caller ought to ask to bo allowed to
enter quietly.
4. A man's house is not his castle when some one
else has got the l)etter of him in an action of ejectment.
In this case, of course, it lias ceased to l»e his house
at all, and therefore has ceased to be his castle.
5. A man's house is not his castle when the outer
door is open. The sheriff having once gained admis-
sion into the house may break open as many inner
doors as he pleases.
6. A man's house is not his castle for anyone except
hhnself and hisfamih/. lie may not shelter therein a
person Avho takes refuge in his house, or who removes
his goods there to prevent the sheriff getting hold of
them.
MISCELLANKOUS TOUTS.
261
ACTIONS AGAINST MAGISTRATES.
CREPPS V. DURDEX.
[Cowp. (;40; 1 Smith's Ld. Oils. 800.]
One Suiidiiy morning Peter Crcpps, instead of being
at cluirch was selling hot rolls on the streets of Lon-
don to whoever wotdd buy. As this could not be con-
strued as a " work of necessity or charity " Peter was
broujiht before INIairi'^trato Durden and chariicd with
exercising his ordinary calling on the Lord's Day, con-
trary to a statute of Charles IL which prohibited such
goings on on Sunday under a penalty of 5.s'. Now, as
it happened that Peter had sold four hot rolls, the
worthy magistrate fined him £1, that is to say 5.s' a
roll. But Peter Avas dissatisfied with this proceedino;,
and soon after commenced an action of trespass against
the magistrate. He was successful, all the judges
agreeing that Peter had been fined lo.s-. too much.
Said Lord Mansfield: "The penalty incurred by
this offence is 5.s. There is no idea conveyed l)v the
act that if a tailor sews on the Lord's Day every stitch
lie taUes is a separate offence, or if a shoemaker or
carpenter Avorks for dltrerent customers at different
times on the same Sunday that those are so many sep-
arate and distinct offences. There can be but one en-
tire offence on one and the same day."
-.m
202
LEADING CASES SIMPLIFIED.
MAL TCIOUS PROSECUTION.
MUXXS V. DUTOXT.
[3 Wash. C. Ct. 31 ; 1 Am. Ld. Cas. 200.]
• •«!'
)
Muiins, the supcriiitoiuleiit of a i)o\Y(lcr factory in
Virginia, went up to Delaware to endeavor to iiiul ont
the process cmph)yecl in a factory there owned by
Dupont & Co. He approached the workmen, induced
one of them to procure him patterns of the machinery
they used, and also an important })ieco of the uiachinery
itself. Dupont & Co. were very Jingry ; thc^y had
taken great pains to preserve the secrets of their trade,
and so when they heard that he had left the place they
followed him to Philadeli)liia, where they had him ar-
rested for stealing their property. H3 was brouglit
back to Delaware, but in the end was acquitted of the
charoo. Then he broni>ht an action aL!:ainst Dupont &
Co. for malicious prosecution, alleging that he had
been greatly damaged by the acts of the firm in mali-
ciously arresting him on achate not founded on truth.
But it was held tiiat this was uot the (juestion at all.
The question was, "Was the charge made maliciously and
without probable cause — probable cause being defined
as "a reasonable ground of sns[)ioion sui)portcd by
circumstances sufficiently strong in themselves to war-
rant a cautious man in the belief that the person ac-
cused isjruiltv of the offence with which he ischarjjed."
Therefore, if Dupont & Co. had this " reasonable
cause," it did not matter at all how much malice they
MISCELLANEOUS TOUTS.
203
may have had against Miiiins. The court decided that
they had reasonable cause for the charge, so Munns
went home without his damages.
SLANDER —DEFAMATORY WORDS, WHEN
ACTIONABLE AND WHEN NOT.
by
POLLARD V. LYOX.
['.)l U. S. L'25.]
Mrs. Polhu'd, though unsuccessful, did not go to
law without some provocation. She sued Lyon for
slander, for having made, on several occasions, the
following rather personal statement in regard to her :
*' I looked over the transom and saw Mrs. Pollard
in bed with C;i[)t. Denty." She averred that the
charoe was false, and that the slander had damaijed
and iniurcd her in her cood name and fame to the ex-
tent of, at least, $10,000. Notwithstanding all this
she did not recover anything.
Defamatory words spoken by one person of another,
said the court, are not actionable except in four cases :
1. When they impute to the party the commission
of some criminal offence involving moral turptitude for
which the party, if the charge is true, might be in-
dicted and punished. Mrs. Pollard's case did not
'wr
III
204
LKAI)I\(} CASKS SIMrr.IFIKI).
come within this exception, l)ec;inse tlio words nscd hv
Mr. Lvon cliariied her with ibrnicatioii, !ind forniciition
wtis not an indictal)lo offence in tlie Disti-ict ot'Coluni-
hiii, where tlie words were spoken and the action was
commenced.
2. When they impute that the party is infected witii
some contagious disease, wliere, if tiie ciiariro was
true, it Would excdude him from society. ]\Irs. Pol-
lard's case was ol)viously not one of this kind.
3. When they a!!ect the party in his office, trade, or
occupation. Nor could the lady's case fall witliin this
exception. But see Mr. Lumbj^'s case on the next
page.
4. When they cause the party special dauiaire.
Mrs. Pollard had not shown any " si)ecial damaije "
as that term is understood in the law, and therefore
she could not recover under tliis head.
And therefore Mrs. Pollard's action, not having a
single legal leg to stand on, fell, of course, to the
ground.
I*
UH
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hi'
LU3II5Y V. ALL1>AY.
[1 Cromp. & J. ;K)L ; Uijj;. Lil. Cas. T(»rts, 87.]
Mr. Lumby had a comfortable situation as clerk in
the office of the Birmingham Gas Company. Mr.
Lumby had also an enemy. One afternoon this
enemy, one Allday, meeting him in the street, and not
caring the- least for the people around, who heard all
MISCELLANEOUS TOUTS.
2(55
!l
lie said, abused Mr. Luinby in very forcible, if not
elegant language. "Yon are a fellow," said he, "a
(lisgraco to the town ; you arc niititto hold your sitna-
lion for your conduct with whores. You may drown
votu'self, for von are not Ht to live, and are a disirrace
to the situation 3'ou hold." Luniby's only reply Avas
an action for slander, which he at once instituted,
alleging that ho was a clerk in the Birniinghani Gas
Couii)an3', and that Allday, in order to cause it to be
believed that: ho was an iin[)roper person to hold his
situation, spoke the words above mentioned. But the
court held that no action woidd lie, there beiuix uo
proof of the slander having caused him any special
damage. "The charge," thev said, "is not action-
able, because the imputation it contains docs not ini[)ly
the want of any of those qualities which a clerk ought
to possess, and because the imputation has no refer-
ence to ids conduct as clerk." ^
1 The defamatory words to be actionable per se must affect him
In his particular calliuii, i.e., must impute the lack of some essen-
tial (lualidcatiou for the occupation or calliuu: lie is euiiaijed in; it
is not enough that liis general reputation is affected thereby'. The
charjre against Vr. Lumby certainly affected hisjieneral reputation,
but it did not follow that, if it was true, he was unlit to bo a
clerk. A most terrible rour mi^;ht be a. very valuable book-keeper.
So where D, who was an attorney, had become Involved in transac-
tions on the turf, and 11 said of him, "he has defrauded his credi-
tors, and lias been horse-w!ui)pe(l off the course at Doncaster,"
these words were held not to be actional)le, beci^iuse the creditors
referred to were sportiuL; creditors, and if his clients were satisfied
with his skill as a lawyer, it did not follow that they would with-
draw their business simply Ijecause he did not pay his gambling
debts. Ayre v. Craven, 2 Ad. & E. 2. On the other hand, where
morality is required in a particular calling, to impute immorality to
one pursuing that calling is actionable per se. Thus, to charge a
minister of the gospel with being drunk, or being guilty of obscene
2GiJ
LEADING CASKS SIMl'LIFIKO.
DAMAGES JX ACTIOXS OF TORT.
VICARS V. WILCOCKS.
[8 East, 1 ; 2 Smith's Lil. Ciis. 4«U.]
*»«; '!•
,»*,,,
'ilj4t,..
:W:\l
K
Stored in his rope-yiinl, Mr. AVilcocks liiid ii (quantity
of cxpellcMit cordiiirt', which ho was disgusted ono day to
find cut to rihl)oiis. Foi* reasons which tlie n^porter
does not I'avor us'v ith, Mr. WiU;ocUs' suspicion rcstcil
on ono Vicars, the servant of his nei!ji:hl)()r, Mr. Josluia
Oakley, and not being tlio man to k(>cp his opinions {o
himself, ho proclaimed loudly on the housetops and in
language the veiy jjlainest, thict Vicars Avas the scam[)
who had cut his cordaire. B\-and-l»v it came to the
ears of the worthy Mr. Oakley that one of his ser-
vants had been damaging his neighbor's proi)erty. Ho
was hiuhlv incensed, aiid althoii<;h A'^icars had been
engaged for a year, which was not nearly expired, \u\
immediately and without takinix the troul)lo to sift the
matter, discharijed him. Turned away by his master,
practices, would bo actioiiiible prr so. The stmlont who wislies to
pursue this siil)ject furtlier is referred to a paper on " The Shuider
of a Tcrson in his Calllnj^," in t\w American Law lievitw for Sep-
tember, 1S81.
Slander, i.e., o^-al defamation, must be carefull}' distinguished
from libel; i.e, written or printed defamation, as the leijal rules re-
latinij to the actionable quality of each are very different. Any
pul)lication, " the tendency of which is to degrade or injure another
person, to brini? him into contempt, ridieule or haired, whicii ac-
cuses lilm of a crime punishable i)y law, or of an act odious and
difirraceful to society, is a libel, and will entitle the injured party
to damages." Dexter v. Spear, i Mason, 115.
Vi,,
MISCELLAXKOUS TORTS.
2()7
the niiiligncd Vicars soiiglit omployniont from a Mr.
lioger Prudciu'c ; hut Kogor, too, had heard oClhn cut
cordage and refused to take the rei)uted proprietor of
llie outrage into his service on any terms. In thi?, k \-
tremity a happy tliought, as the luckless litigant then
considered it, occurred to him : why not hrin*-- ;ui ac-
tion against the owner of the cordage for slander, and
lay as specii.l ! image the dismissal by Oakley and the
rejection hy Prudence. But the result did not corre-
spond to his sanguine anticipations, for the court
decided against hiin on two grounds :
1. Because the tirst s[)ecial damage, viz. : the dis-
missal l)y Oakley, was not the legal, hut the illegal con-
se(jucncG of Wilcocks' words — illegal for Vicars had
l)een engaged for a year, and therefore his master had
no right to dismiss him in this sunnnary way. " The
special damage," said Lord ELLExnoKorGii, " nmst
he the legal and natural conseciuenco of the words
spoken. * * * Here it was an illegal consequence,
a mere wrongful act of the master for which the defend-
ant was no more answerable than if, in consequence of
the words, other persons had afterwards asseml)led and
seized the plaintiff and thrown him into a horse \Hmd,
by way of punishment for his supposed transgression."
But on this point see the next case.
2. Because it was far more likely that Prudence's
refusal to emplo}^ him arose from the simple fact of
his having been dismissed from his last place than
from the reason for such dismissal.
►■;!
268
LEADING CASES SIMPLIFIED.
LUMLEY V. GYE.
[2 El.&Bl. 215.]
m
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1
1,1
1^
1
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!!
1
t '
Mr. Liimley, the proprietor of Her Majesty's Thea-
tre, London, had enLT'isxed a very fascinating and ao-
complislied actress, Mademoiselle Johanna Wagner, to
api)ear at his theatre in oi)era, twice a week for tlircr
months from the first dav of April, l<sr)2. Miss "Wauf-
ner was to receive a sahiry ot $')()() a wceiv, and sh(!
expressly agreed that she would not, during that tin.ie,
use her talents at any other theatre. Now ]\Ir. Gyv.,
a rival manager, and proprietor of Covent Garden
Theatre, when he heard of this contract did not like it,
at all, for he wanted a new star at his house. The
end of it was that hy offering her a larger salary, ]Mr.
Gve persuaded ]Miss Waijfner to break her en<;auemeni
with Mr. Luinley, and to perform for him. For this
hiterferenco and the damaires w'.iich were caused hv the
actress's breach of contract, Mr. Luinley brought an
action against Mr. Gye.^ The court held that the
action Avould lie. "It was undoubtedlv y^/'/yMa^c^vV'
an unlawful act on th(! part of Miss Wagner to break
' Before talvin^ this course, however, the lon^-headed Mr.
Lumley applied to tlie Court of Cliancery iu tlie uiatter, and
asl;ed an injunction to prevent lier from siuiiiuij; at Gye's Tlieatre.
Tiie court fjranted tlie injunction. " It is true," ya.u\ Lord St.
Leonards, the Lord Cliancellor, " th.it I have not the means to
compel her to sUv^, but she has no cause of complaint if 1 compel
her to abstain from the commis.sion of an act which she lias bound
herself not to do, and thus possibly cause her to fuUll her eiiira^ie-
ment." Lumley v. Wagner, 1 l)e G. M. & 0. GOO. But as Lumlev
would not have her now, and Gye could not, the actress went home
to reflect that honesty is perhaps the best policy after all.
^1 ji
MISCELLANEOUS TOUTS.
269
her contract," said Wigiitman J., "and therefore a
tortious act of the defendant mivliciously to procure
her to do so, nnd if damage to the phiintifl' foHowed iu
consequence of that tortious act of the defendant, it
would seem * * * l\y^^l .j,! .action on the case is
niaintaiuablo."
This case has practically overruled Vicars v. Wilcochs
on one point. In Vlcavs v. Wilpocks it was laid down
that the damage in respect of which an action is
brought must have l)een the le;/al consequence of the
defendant's act. If, the court said, as the consequence
of the defendant's slander, a mob had ducked the
plaintilfin a horse-pond, such a consequence would be
an iUerjal and unnatural consequence of the slander,
and could not be taken into account in estimatinir the
compensation to be i)aid by the defendant to the plam-
tiff. Lumley v. Gye, however, alters this rule by
allowing the Avrongful act of a third party to form part
of the damage where such wrongful act might be nat-
urally contemplated as likely to arise from the defend-
ant's conduct.'
NO CONTRIBUTION BETWEEN DEFENDANTS
IN TORT.
MERRYWEATHER a . XIXAN.
[8 Term Rep. ISC; 2 Smith's Ld. Cas. 457.]
Merryweather and Nixan, in the fulness of their ani-
« Shirley Ld. Cas. 239.
270
LEAUINO CASES SIMPLIFIED.
V
iji'il
■ *<^'*
mal spirits, dcstroj'cd the macliineiy and injured the
mill of one Starkcy. The mill-owner was not prepared
to submit tamely, and brouirlit an action against the
l^air of them. The jury gave him £840 as damages,
and, instead of getting £420 from each he made Mer-
ryweather pay the whole £840. Merryweather —
small blame to him — did not see Avhy he should pay
for Nixan's whistle as well as his own, and sued his
•' pal" for contribution, that is to say, for £420, In
fairness, of course, Nixan ought to have made no diffi-
culty about paying it ; but he steadfastly declined to
do anything of the sort. The law backed him up in
this refusal, for ex turpi causa iion oritur actio, which
means that a man shall riot be allowed to found an ac-
tion on something tliat he ouirht to be ashamed of;
and Merryweather ought to have been very much
ashamed, indeed, of having injured Starkey's mill.
There is no contribution, said the court, between
defendants in tort. In contract there is. If there are
two sureties, and one of them is made to pay the
whole debt, he can sue his brother surety for half
of what he has paid. In such a case there is no lurpis
causa.
Pi-
EVIDENCE, ETC.
271
XYI . — E viDKxcE , Etc .
HEARSAY EVIDENCE.
DIDSBUKY V. TH03IAS.
. [U East, 323 ; 2 Smith's Ld. Cas. 444.]
Like all land cases, this is a very dry one, and the stu-
dent will doubtless ho better able to grasp the principles
whicli it announced, after a short preliniiniiry study of
the more modern and more entertaining case of Bar-
dell V. Pickwick, 2 Diclc. 104, a reporter with which
most readers are already pretty familiar. In- the
course of this trial before Mr. Justice Staiileigii, Mr.
Sanmel AVeller, it will be remembered, was called as a
witness. We give the scene in the exact words of the
genial reporter : —
Sergeant Buzfiiz now rose with more importance than he had
yet exliibited, if that were possible, and vociferated, " Call Samuel
Weller."
It was quite unnecessary to call Samuel Weller; for Samuel
Weilcr stepped briskly into the box the instant his name was pro-
nounced ; and placini;; his hat on the floor, and his arms on the rail,
took a bird's-oyo view of the bar, and a comprehensive survey of
the bench with a remarkably cheerful and lively aspect.
" What's your name, sir?" inquired the judge.
«' Sam Weller, ray Lord," replied that gentleman.
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272
LEADlXCr CASKS SIMl'LIFIKI).
"Do j'on spell it witli a ' V ' or a ' W? " inquired the judge.
"Tliat depends upon tlie taste and fancy of the speller, my Lord,"
replied Sam, " 1 never had occasion to spell it more than once or
twice in my life, but I spells it with a ' V.' "
Here a voice in the gallery exclaimed aloud, "Quite right, too,
Samivel, (piite right. Tut it down a we, my Lord, put it down a
we."
"Who is that, who dares to address the court?" said the little
judge, looking up, " Usher."
"Yes, my Lord."
" Bring tliat person here instantly."
"Yes, my Lord."
But as tlie usher did not Und the person, he did not bring him;
and, after a great commotion, all the people who had got up to look
for the culprit, sat down again. The little judge turned to the wit-
ness as soon as his indignation would allow him to speak, and
said : —
" Do you know who that was, sir? "
" I rayther suspect it was my fatlior, my Lord," replied Sam.
"Do yon see him here now? " said the judge.
"No, I don't, my Lord," replied Sam, staring right up into the
lantern in the roof of the court.
" If you could have pointed him out, I would have coraraitted
him instantly," said the judge.
Sam bowed his aclcnowledgments and turned, with unimpaired
cheerfulness of countenance, towards Sergeant Buzfuz.
"Now, Mr. Welter," said Sergeant Buzfuz.
"Now, sir," replied Sam.
" I believe you are in tlie service of Mr. Pickwick, the defendant
in this case. Speak up, if you please, Mr. Weller."
" I mean to speak up, sir," replied Sam, " I am in the service o'
that 'ere gen'l'm'n, and a wery good service it is."
" Little to do and plenty to get, I suppose?" said Sergeant Buz-
fuz, with jocularity.
"Oh, (luite enough to get, sir, as the soldier said yen they or-
dered him three hundred and fifty lashes," replied Sam.
" YdU must nottcll us what the soldier, or any other tnan said, sir,'^
interposed the judge, " ifs not evidence.''^
Didshury v. Thomas, illustrates the rule, that what
the other man said is not evidence, because the other
man was not under oath wheu he said it. One Ann
EVIDENCE, ETC.
273
Dldsbiiry brougbt ;ui iutioii oi cjoctincui to get liokl
of :i fjinn of lhirfv-i!vc iioros;, called tho MerulovrFidiii,
ill Deil)ysi,iio. She oluiineit it uiidci li.e will of ;- Mr.
Sainiiul White. The Avili vv:is dated Nv^veinher :}',!.
17r)4, and the chief obstacle to \iin's siicc-ss '.vas t*)
prove that the l.-uuls wmv the testator's at that timr.
Til support of her ease she called a /itiiess who swore
that the r.tnu in q le-'tioii, t()ijC;:hcr with another farm
called Foxh'w's Croft, was icpuLcd to i: ve been Sir
.John Statham's, and to hive Ixicii ))urcha'^("^ at the
siiine L'.nr> with it, hy »Sainuol White of Sir r?^ohn.
That, of coni'se, alone <li(l not 1)X any piirti* ijlar unJe.
But to siipplenitMit this e. i!L!nce,aiid in'ikc it serve th:'
good Vvoin-Mrs CMiiso., a deed .''as [>ro»liiced ihited
March 2i>, 170:', whei-el. / in consil ovation t»'' natural
love a:)'! airccinai ^)ld Sjimii'^l Wl'itc ^arjjr/ined and
enfeofl';''! ]m son Eo vard of I'oxlow'-i C'"oft, ** idl
which said farm, etc., Iiiive Id ii lately ]>iircl!ased,
amomjH oth' " laml'^ and Itereditameuf.<, by the said
Samuel White, of a')d from f^ir dohn Slathani."
Tt w: s clearly ^jvovcd that liich:;rd, the le.itntor's
eldest son, hau taken ))os.ie ision of find occupied the
Meadow Faun ."t the s;i:no time t'i.ct h's y .unger
brother Ned had b^gun to <>' '■upy 1^ oxlew's Croft ;
and also that tne person iiamed'atcly preceding Richard
ill the occupation of the ^Aladow Farm was tenant to
Sir John : and the [)laintilt' s ^o'lneel aigued thot un-
der the circumstances the eviden "r of repu atioii coiJd
bo received. It was held, hoAvevei, t!»at the evidence
could not be received, as it was only hearsay.
Hearsay — i.e.., what the other man said, or to speak
more correctly, statements made b}^ a person not
called as a witness — is not admissible in evidence in
I
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ill MS
m
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274
LEADING CASES SIMPLIFIED.
courts of liiw. But, us usual, we no sooner announce
the rule than we come upon the exceptions. These
exceptions arc as follows.^
1. Hearsay is admissible, resjyecling matters of 'pub-
lic and general interest, such as the boundaries of coun-
ties or townships, claims of highways, etc. The
reason for the exception in this case is that the origin
of such rights is generally obscure and incapable of
better proof; that people living in the district are
naturally interested in local matters and likely to know
about them, and that reputation cannot well exist
without the concurrence of many persons who are
strangers to one another and yet equally interested.
Such declarations, however, to be evidence must have
been made a)ite litem motam, that is, before any dis-
pute on the sujcct has arisen. They must also be con-
fined to general matters, and not touch jjarticular
facts.'- Illustrations. — The question is whether a
road is public. A statement by A. (deceased), that it is
public, is admissible.^ A statement by A. (deceased),
that ho planted a willow, still standing, to show where
the boundary of the road had been when a boy, is
inadmissible,*
2. Hearsay is admissible in matters of pedigree.
Illustration. — The question is which of three sons
(For,t,unatus, Stephaiuis, and Achaicus),born at a birth.
'•' On this subject the student will do well to consult Mr, Justice
Steimikn's admirable Digest of the Law of Evidence, From this
work I have talvca the illustrations given in the remainder of this
case.
2 Shirley Ld. Cas. 243.
s Crease v. Barrett, 1 Crorap. M. & R. 919.
« Reg V. Bliss, 7 Ad. & E. 550,
w
IS
EVIDENCE, ETC.
275
is the eldest. The fact thiit the father said that Achaicus
was the 3'ouiigest, and he took their names from St.
Paul's Epistles (See 1 Cor. xvi. 17), and the fact that
a relation present at the birth said that she tied a
strinij around the second child's arm to distinsfuish it,
are relevant." Such declarations, together with in-
scriptions on tombstones, entries in family Bibles, and
the like, are admissible on tlie principle that they are
the natural effusions of a person who must know the
truth and has no motive for misrepresenting it.
3. An admission 2))'ci'iousIi/ madt '>>/ a party to the
action, or one interested in it is admissible. Illustra-
tion. — The assignee of a bond sues the oblinor in the
name of the obligee. An admission on tiie part of the
obligee, that the money due has been paid, is admissi-
ble on the part of the defendant.
4. An admission made by an agent authorized to
make it, eitJtpr exjiressl// or by the conduct of the prin-
cipal, is admissible. Illustiiatiox. — The question is,
whether a parcel, for the loss of which a railroad
company is sued, was stolen by one of their servants.
Statements made by the station-master to a policeman,
suggesting that the parcel had been stolen by a porter
are admissible as aijainst the railroad.^
5. A voluntanj confession made by a person charged
ivifh a crime, is admissible.
6. Dying declarations as to cause of death are ad-
missible in murder and manslaughter cases.
7. Hearsay is admissible as part of the transaction,
or as it is technically called, as part of the res gestae.
i
1 Kirkstall Brewery Co. v. Furaess R. Co., L. R. 9 Q. B. 468.
276
LEADING CASKS SIMl'MFIKD.
Thus A.'s declanitloii in l)ii3niig money that he pays us
agent of B., is admissible.'
8, Hearsay is admissible as to declarations of jter-
sons since deceased, made in the ordinary course of
their business. Onlliis point see J^/'2*ce v. Torrington^^
a case of delivery of beer.
9. Hearsay is admissible as to declarations by per-
sons since deceased, against their interest. On this
point see Iligham v. Ridgway,^ a ease of delivery of
babies.
DECLAllATIONS BY PERSONS SINCE DE-
CEASED.
PRICE V. EARL OF TORRIXGTOX.
[Salk. 285; 1 Smith's Ld. Cas. 3!)0.]
I;
i
This was an action by a brewer against the defend-
ant for beer which his household had drunk. The
practice at the plaintiff's brewery was for the dray-
men who had taken out beer during the day to sign
their names in a book kept for the purpose before they
hied them home for sweet repast and conjugal joys.
The particular drayman who had taken Lord Torring-
' Wliart. on Ev., sect. 2G2.
2 Post.
3 Post, p. 277.
rs US
EVIDKXCK, KTC.
277
ton liis heer was dead, but ho had duly made his entry,
and the fj^uostion was whether it was adniissiblo evi-
dence for the phiintifl*. It was held that it was, on the
ground that it was an entry made ht/ a disinterested
perso)i in the ordinary course of his business.
DECLARATIOXS BY DECEASED PERSONS
AfiAlNST THEIR INTEREST.
HIGHAM V. UIDGWAY.
sign
thev
[10 East, 101); 2 Smith's Ld. Cas. 3:50.]
When was William Fowden born? This Avas the
interesting question on which depended vast estates in
the countv of Chester. Elizabeth Hiii-hain laid claim
to them by virtue of a certain remainder ; but those
who contested her right said that her remainder had
been barred by a recov^ery suffered on April 16, 1789,
by one William Fowden, since deceased. Mrs.
Higham's answer to this was that on the day named
William Fowden had not yet come of age, and was
therefore iiica[)able of sulfcring recoveries, and barring
the remainders of good honest women like herself.
So it was that it was strenuously disputed on which
side of April It), 17()8, the late Mr. Fowden had been
boru. Was he or was he not of age on April 16,
1789? It was, of course, the object of Mrs. Highara.
to make out that ho was born later than April IG ;
and the most important piece of evidence she adduced
i
278
LEADING CASES SIMPLIFIED.
!
in support of that view was an entry in tlie diary of a
man-midwife who, like Fowdon, liad loiij^ since joined
the niiijority. In that diary, under the head of April
22, 1768, there was this important entry: —
*' W. Fowden, jun.'s, wife,
"Filius circa hor. 3 post nierld. natus H.
" W. Fowden, jnn.,
"April 22, fllliis natus
" Wife, £1 iis. Id.
*'Paid, 25 Oct., 17()8."
This entry was admitted in evidence on the ground
that it was a declaration agahut interest, the law
shrewdly suspecting that no one would be such a fool
as to ])ut himself down as paid when he h:id not been.
«< The entry made by the party," said Lord IiIllex-
BOROUGH, C. J., " was to his own immediate prejudice
when he had not only no interest to make it if it was
not true, but he had an interest the other way not to
discharge a claim which it appears from other evidence
that he had. The evidence, therefore, iu this case was
properly received."
PRESUMPTION OF DEATH FROM ABSENCE.
NEPEAX V. DOE.
[2 Mee. & W, KIO; 2 Sinith'.s Ld. Cas. 46G.]
The effect of this case is that when a person goes
abroad and is not heard of for seven years, the law pre-
EVIDENCE, ETCo
27!)
sumes him to bo dead, unless the cu'cinnstances of the
case arc such as to account f(U' his not USimx licard of
without assuming his tloatli, hut does not presume
that lie died at any particuhir period during those
seven j'ears.
ESTOPPELS.
I>UCHESS OF KINGSTON'S CASE.
[I'O How. St. Tr. ;'.!ll ; Smith's Ltl. Cas. 57;5.]
One of the most beautiful women of the hist century
was Sarah Chudleii»li, "Witliout going minutely into
her strange eventful history, it may be said that in a
weak moment she fell in love with a Cai)tain Harvey,
and married him. Married in haste she repented at
leisure. Being, however, of an ingenious turn of mind,
she determined to destroy the evidence of the mar-
riage, and with that object Avent down to the church
where the ceremony had been performed, and tore
the leaf out of the register. She had scarcely accom-
plished this feat when the news reached her that her
husband had succeeded to a peerage, and was dying.
To reap the benefit of such good fortune, she went
straight back to the church, and replaced the pur-
loined leaf. Her husband, however, was not obliging
enough to die, and, as the lady was very anxious to
marry the Duke of Kingston and become a duchess,
2^0
LK.M)l\(^ CASKS SIMI'I.IKIKI),
B]',i f
she pi'ocurotl an irregular divorce from him ami iinir-
ried the duke. Al'tcr a few yc^ars tlio tluk(! diu(l,
leaviiii; liis widow a verv lariro fortune. This the
duke's heirs were not dis[)()sed to aHow her to enjoy
in ix'ace. 'I'h(^y prosecuted lier for l)iij:aniy, that is, of
course, for niarrviuijr tlio Duk(! of Kini^ston wlien she
liad not hvcn U'gally divorced from her first Iuisl)and.
The defenco to tho ciiari^o was that the divorce was ji
legal one, and left her free to marry the Duke of
Kingston or any other man or duke.
Tho iudires were renuired to answer the following
questions : —
1. If a spiritual court decides that a nitvrriagc^ is null
and void, is its decision so conclusive on the subject
that the marriage cannot ho proved against one of the
parties in an indictment for bigamy?
2. Supposing tlio spiritual court's decision is final,
may counsel for tho prosecution destroy its elfect by
showinj; that it was brought about by fraud and collu-
sion ?
The first question was answered in tho negative, so
that it did not much matter to tho duch(!ss what tho
answer to the second was. That question, however,
tho judges answered in the affirmative, thus doubly
settling her.
This is tho " leading case " on tho law of Esto})pol.
The definition of estoppel as given by Lord Coke is
gonerallv ackno\vled<red to l)o a little startlinir, and to
have an air of immorality about it, which only tho
public interest in putting an end to litigation, and tho
reastmabloness of refusing to allow people to contradict
statements on the truth of which others have acted,
can justify. "An estoppel," says Coke, "is where
I:
EVIJ>K\t'K, KTC.
281
!i iiiMii is coiicIikUhI hy his own iict ov iicci'[)tiiiu'(' to
sMV ilw tnitli," jiD'l ho divides ostoi)pcls into tin-eo
kinds, viz.: 1. By niiittcr of record. 2. liy deed.
'A. B}' condnc't.
1. Wlicn the parties and the points litiuated are tlie
same, a tornier Judunuint rendered is eonehisive. As
we liavo already seen (Man-iott v. Ilduipton) interest
reipuhUvaa lit setjiiiis lltium.
2. To exeente a (h-ed is like cxcenting a murderer
a very solemn tiiini^ and therefore whatever assertion
a man has made in his deed he must stand hy. If you
e.xeeute a bond in the name of Obadiah you are es-
topped from i)leading that your name is Augustus.
So, though a person who has given an ordinary receipt
may show that ho has never really received the money,
a person Avho has given a receipt under seal cannot.
Two qualifications of the doctrine of estoppel by
deed nuist be remembered: 1. Althougii a person
acknowledges in his deed that he has received the con-
sideratioji money for the service he undertakes to per-
form, he may nevertheless show that as a nuitter of
fact he has not received it. 2. A person who is sued
on his deed may show that it is ibunded on fraud or
illegality; and, if he proves it, the document becomes
worthless. The <»'reat case on this subiect is Collins v.
BldiUern,^ which we have already seen.
.'). If a nuin so conducts himself, whether intention-
ally or not, that a reasonable person would infer tliat a
certain state of facts exists, and acts on that inference,
he will afterwards be estopped from denying it.'^
Ante, p. 8!); Shirley Ld. C;is. 202,
2 Cornish v. Abington, 4 Hurl & N. 547.
Uir^
§■
282
LEADING CASES SIMPLIFIED.
¥ 'if
Once in England an old gentleman induced a niece
to come and live with him and nurse his old age by
promising to remember her in his will. But the old
deceiver did not remember her. It was held, how-
ever, in an action against the executors, that he was
estoi)ped from omitting to make some provision for
her, as she had altered her position in consequence of
his representations.^ Some years later in California,
there was a Good Templar who kept a grocery. After
a while some one discovered that liquor was being sold
in the store. The proi)rietor protested that the liquor
did not belong to him !)ut to his clerk. A creditor of
the clerk hearing this, attached it for a debt, as be-
longing to the clerk. Then the Good Templar finding
his property :iI)out to be taken from him, declared his
ownership and tried to get the liquor back. But
it was too late. "If parties," said Bennett, J.,
*' choose to make untrue statements by which others
are injured, they should be estopped to unsay that
which they have said. Estop[)els, in general, are
odious, but in morchantile and ordinary business
transactions, where men must trust to the appear-
ances and declarations of parties because they have
no other means of information in such cases, the courts
have been Inclined to extend the list of estoppels." ^
' Loffus r. Maw, :V2 L. ,1. (Cli.) 49.
2 Mitchell V. Reed, !) Cal. 204.
EVIDENCE, ETC.
283
LOCAL AND TRANSITORY ACTIONS.
MOSTYX V. FABRIGAS.
[Cowp. 101 ; 1 Smith's Ld. Cas, 7GG.]
" 2
By the Peace of Piiris, which hi 17G3 put an end to
the Seven Years' War, the ishuid of Minorca, in the
.Mediterranean, became a British i)ossession. In 1770
the jrovernor of this ishuid was a gentleman named
Mostyn, who, apparently, was of opinion that he was
entitled to play the part of an absolute and irresponsi-
ble despot on his small stage. One of his subjects,
however, a Mr. Fabrigas, did not coincide with him in
this view, <ind he rendered himself so o])noxious that
the irovernor laid hands suddenly on him, and, after
keeping him imprisoned for a week, banished him to
Spain. It was for this arbinary treatment that Fabri-
mis now brouscht an action at Westminsler.'iw England.
Mostyn objected that, as the alleged trespass and false
imprisonment had taken place in Minorca, the action
could not be br'Miirht in England. But it was held
that, as the cause of action was of a transitory and
not a local nature, it could. And a British jury gave
Fabrigas £3,000 damages.
This is the leading case on "local" and "transi-
tory" actions. All actions ftdl within one or the
other of these two divisions. Those which are re-
quired to be tried in a particular county because the
subject-matter is connected with the particular locality
284
LEADING CASES SIMPLIFIED.
i] V
.'.:i
i;i.
must be tried there. Others are transitory, and may
he tried wherever the parties can be found.
USE OF IIIG IIW AYS -~ PLEADING.
DOVASTON V. PAYNE.
[1' II. Black. r>-i7; 2 Smith's Lil. t7:is. 200.]
Dovaston's ooninlaint aj^ainst Payne was that he had
taken and impounded his cattle without rhyme or
reason : —
" Mj' kiiie ai"e gone, and I have no more,
Which Payuo liatli caught and doth keep away,"
was his mehmcholy refVaiu.
CalhKl on for an ex[)hination, Pa^'ue said he had
cauirht the l)easts breakiuij; down his fences and ruinini;
his crops ; he had taken them dnmarfe feasant ^ in fact.
Such were the replevin and the avowry. It was now
Dovaston's turn to{)lead, which he(iid to this effect : —
" Well but, my friend, if they were, as you say, in
your field damajiiuir your crops, and all the rest of it,
it was entirely your fault for not keeping yoin' f(Mices
in proper condition. There they were, — the sweet
innocents, — 'in the hij^hway,' and how could they
know where they had a right to go and where they
had not?"
KVIDENCE, ETC.
2.sr)
The weak point of this pleading, — pi*obal)ly drawn
by some youthful lawyer called the day before, — was
that, by alleging that his cattle Avero " in " the high-
way instead of "passing along," Dovaston had not
exchidcd the chance of their being trespassers. They
might very well be " in " the hiiihwav without beins:
quietly and peaceably " passing along" it, like solder,
well-conducted cattle ; and so the defendant had judg-
ment.
On the subject of certainty in pleading, which was
so much thought of in the days of special pleading,
this case has lost much of its importance, since the
adoption of the Codes. It is, however, still a leading
case ou the rights of the public over a hignway.
1 .
1]
^'f
4*
r
The Principal M^vxims of the Law/
i
Acta exteriora indicant interiora secreta.
Overt acts declare a man's intentions and motives.
Actio )jersonaliB inoritur cum pci&ona.
A personal right of action ceases at death.
Actus Dei ncmini facit injuriam.
The act of God does injury to no man.
Benigne facienda) sunt intcrpretationes propter simplicitatem
laicorum, ut res niagis valeat quam pereat.
Instrum-nts ought to he construed, leniently, tvith alloioances
made for the ignorance of people who are not laivyers, so
that the transaction may be supported, and not rendered
nugatory.
Caveat emptor.
The buyer must look after himself.
Cessante ratioiie, cessat lex.
When the reason for a laio ceases to exist, so also does the
law itself.
Contemporanea expositio est optima et fortissima in lege.
The best way of getting at the meaning of an instrument is
to ascertain lohen and under what circumstances it was
made.
Cuilibet in sua arte perito credendum est.
Every man is an expert in the particular branch of business
he is familiar with.
' With some alterations and additions from Shirley's Ld. Cas.,
291-294. , ^ „^
(287)
I
Ri,jj,
^
I.
5'i
3^ '
ilili
J SI
K '"
288
THE PlJIXCIl'AL MAXIMS OF Till] LAW.
Dc'lej>;atns iion potest delegiirc.
A person Jiniini'j mere delegated authority cannot himself
deler/ate that anthoritj/ to another.
Do miniinis noii curat lex
The Ik 1(1 iloe'i not tronhle it>ielf aboiit Irijfefi.
Doinus suiv est ciiiqiK' tiitissiimini relugiiiiu.
A ni'in'.'i JioHse is hin safest retreat.
Ex (lolo mnlo non oritur actio.
Xo ca use of action can grow out of a questionable transaction.
Ex uudo pMcto iiou oritur actio.
In order to ground an action, an agreement must have a
coiisid<'r(dion.
Expedit i'(Mpul>licii.' ue (piis sua re male utatur.
The good of the State requires a man not to injure his own
property.
Exi)ressuui facit cessare tacituiu.
When all (he terms are cvpressed, nothiiaj can he implied.
Iguorantia facti excusat, iguorautia juris uoii excusat.
A man may be pardoned for mistaking facts, but not for
mistaking the laio.
Ill contraetis tacite iusunt quie sunt nioris et cousuetudiuis.
Persons are presumed to contract with reference to habits
and customs.
Injure non remota si'd proxiuia causa spectatur.
It is not the remote, but the immediate cause that the law
looks at.
Interest reipublicse ut sit finis litiuni.
It /s the interest of the State that litigation should end.
> jx non dogit atl iini)()ssil)ilia.
The law does not compel a man to perform imjiossibilities.
Lex semper intendit quod convenit ratioiii.
The law must he taken to intend what is reasonable.
Lex spectat natura* ordinem.
The law takes into account the natural succession of things.
THE PllIXCIPAL MAXIMS OF TIIK LAW. 2fi'.f
•>t himself
iiisaction.
st have a
•e hi.s own
3 implied.
i!lt.
'it not for
m
letiulinis.
to habits
t the law
end.
sibilities.
>f things.
Modus et convcntio vincunt leo-em
Perso7is may contract themselves out of their legal liabilities.
Non dat qui nou habet.
A man cannot give what he has not got.
Non omnium qinxi a majoribus constituta sunt ratio reddi
l)otost.
A reason cannot be given for everything that has been %■-
tablished by our ancestors.
Omnia piwsumuntur contra spoliatorem.
Every presumiMon is made to tlie disadvantage of the
vjroiig doer.
Omnia pni'sumnntur rite et sollennitcr esse acta.
It is presumed that all the usual formal it ies have been com-
plied ivith.
Omnis ratihibitio rotrotraliitur et mandato priori jequi-
paratur.
^1 rafijicatlon is taken bark and made equivalent to a pre-
vious command
Optima est lex qua> minimum relinquit arl)itrio judicis, opti-
mus judex qui minimum sibi.
The b'st system of law is that which leaves the least to the
discretion of the Judge; the best Judge is he who leaves
the least to his own, discretion.
Potior est conditio possidentis.
The one in possession has the " imlde track."
Quifacit \)ev alium, facit i)er se.
He who does a thing by another does it himself.
Qui hieret in litera lueret in cortice.
He ioho harps on a mere written Instrument does not get at
the pith of tit e matter.
<iui prior est tempore, potior est jure.
The law favors the earlier in point of time.
Qui sentit commodum, sentire debet et onus.
Benefit and burden ought to go hand in hand.
r
•1}
:..
ilfj
I-' i
I
290
THE PRINCIPAL MAXIMS OF THE LAW.
Quiequid i)l!intatiir solo, solo ccdit.
Whtdenr is j^lcinted in the (jround becomes part of the ground.
Quilibet potest rciiiinciarc jiiri pro so introducto.
A man may ivaiie a r if/hi established for his own benefit.
Quod fieri nou debet fnctuin valet.
What ought never to have been done at all., if it has been
done, may be valid.
Quod suhintelligitur, iion doest.
^\ltnt is to be under.'itood, is a.s good as if it were there.
Quoties in verbis nulla est ambiguitas, ibi nulla expositio
contra verba fienda est.
When the language of a written instrument is perfccibi
plain, no construction tvill be made to contradict the lan-
guage.
Res inter alios acta alteri noeere non debet.
^1 vian ought not to be prejudiced by xchat has talien j)Iace
betiveen others.
Res ipsie loquitur.
The thing itself speaks.
Res judicata pro A'eritate accipitur.
The decimon of a court of Justice is assumed to be correct.
Respondeat superior.
A man must nnsioer for his dependents.
Salus populi suprema lex.
The icelftre of the State t','? the highest law.
Sic iitci'e luo ut alienum non licdas.
Make such a use of your oiim property <is not to injure your
neighbor'-s.
Solvitur secundum modum solvontis.
Payment is to be made as the payer pleases.
Spondes peritiani artis.
If your position implies skill, you must use it.
Ubi jus, ibi remedium.
Where there is a right, there is a remedy.
THE I'KIXCIPAL :MAXI.M.S OF THK LAW.
291
Vcrha chartanim fortius accipiuntur contra profcM'entom.
Tlie haiguaye of an inslrument /.s to be taken stronr/bj
against the j)e.rso)i n-Jiose languarje it is.
Verba gencralia restringuuntur ad habilitatem rei vcl per-
sonam.
General words are to be tied doion and interpreted accord-
ing to their context.
Vngilantibus uon donnicntibut jura subveniunt.
To get the laio's help a man 7nust not go to sleep over hi.i
o>i-n interests.
Volenti non fit injuria.
The man who is the author of his otcn hurt has no right to
complain.
,'' I
\%
I !'■
't
l(
11
Table of Abbueviatioxs ix this Volume.
Ad. & K. . ,
Ala.
Allen . .
Am. Dec. .
Am. Ld. Cas.
App. ('as.
7\.doli)hus and Ellis's Qnecn's Bench Re-
ports, 18;U-1.S10. •
Alabama Snpreme C'onrt Reports, IHJO.
Allen's Massachusetts Reimrts, 1801-1 867.
American Decisions, 1878-^
American Leadiuf? Cases.
English Appeal Cases, ^ 1876.
Barb. . . .
Barn. & Adol.
Barn. & Aid.
Barn. & Cress.
Barbour's New York Supreme Court Re-
ports, 1847-187").
Barnwell and Adolphus's King's Bench
Reports, 1830-1 8;54.
Barnwell and Alderson's King's Bench
Reports, 1817-1822.
Barnwell and CrcssweU's English King's
Bench Reports, 1822-1830.
' The second scries of these reports, extending from 1841 to 1852,
is sometimes cited Ad. & E. (x. s.), but the correct citation is Q. B.
•^ Tliis is a worlc published ])y A. L. Bancroft & Co., San Fran-
cisco, and containing iUl the cases of general value and authority
decided in tlie courts of tlie several States from the earliest issue
of the State Reports to the year 18()!). About thirty-three volumes
are now out, reacliing to 1838. It is edited by A. C. Freeman, Esq.,
the author of Treatises on Executions and Judgments, and is of
great value to the profession, as the number of State Reports run
now into tlie thousands, and a complete collection of them is some-
thing quite beyond the means of the majority of lawyers.
■'' In this series are reported the judgments on appeal of the Eng-
lish House of Lords and Privy Council.
(293)
m
li "
»* .,'
<!
'J!)4 TAHLK OF AUnUKVIATIONS.
Best & S. . . Best and Sinilli's (^tioen's Beiu-li Kt-ports,
lS(;i-187().
Bi<r. Ld. Cas. . Biirelow's Loadinir Cases on Bills, Notes.
Bills & Notes . and Cheeks (2(1 ed.). Bust i, IHSO.
BijT. J^d. Ciis. . Bijii'low's Leading; Cases on Torts Boston,
Torts
IS
ii>.
\V-
Binj; Biny;hani*s KnoHsli Common Tleas 1
l)()rts, 1Hl>2-1s;5|,
Bing. (n. c). . Binuham's Knglisli Common IMeas lie-
ports (new cases). iw.'JI-jSK).
Black .... Black's United States Supreme Court Be-
ports, isr, 1-1802.
Black., II. . . See II. Black.
^y. . . Sec. W. Black.
. . Blackford's Indiana Heports, 1817-1H17.
icK.
Bl;
Blaekf.
• •
Bosw Bosworth's New York Superior Conit
Reimrts, ISfiT-lSC,;}.
Brockenhrougirs Uepoi'ts of Chief Jnstict'
Marshall's Decisions, 1802-18;!:;.
Burrow's Englisli King's Bench Beporls,
< o < - 1 / / 1 .
Br(jck
Burr.
Cal California Su[)remo Coi'it Reports, ]H')0-
Camp Cami)l)eirs English Xi:;l Prius Reports,
1808~181(;.
. Carrington and Payne's English Nisi
I'rius Reports, 182;5-18n.
English Conunon Bench (or Pleas) Re-
poi'ts, old and new series, 1845-1800;
I8r)(;-i8(ir).
Central Lav Journal. 1874-
Coke's English King's Bench Re})orts,
1072-1610.
Conn Connecticut Supreme Court Repoits,
1814-
Cow Cowen's New York Reports, 182;?- 1820.
Car <fc P.
C. B. . .
C. B. (n. s.)
Cent. L. J.
Coke . .
TAlil.E OF ABIJUKVIATIUNS.
295
I IH'-
KV-
Cowp Cowper's En<j>iisli Iviii«r's Uciicli IJcports.
1774-177H.
Cnuu'li . . . Crjinch'.s I'liitcd Statun Supivmo Coui't
Keports, IsOO-lKl,').
Croke .... rroki-'s English King's lU'iicli Hoports,
l."»H2-l(ill.
Ci'oinp. & J. . . Civunptou jukI Jorvis's Kiiglisli Kxc'lio(|iU'i-
Reports, 1.s;;()-1H;}2.
Cromi). M. & U. . Cr )ni[)t;)n, ^Ii'csou and Hoscoe's Kiiglisli
KxclRMpuM- Hi'ports, 1h;}4-1.s;1(;.
Ciisli Ciishiiig's Massai'liusetts Ivopoits, 1818-
IS.V}.
Dt' (r. M. & G. . Di'Gi'x, Macnaghteii and Oonldu's Knglish
Clianct'iy Ri'ports, 18')1-18.J7.
Bcnio .... Dciiio's Now York Hoports, 18ir)-18|8.
Dill Dillon's rnitcd Slati'S Circuit Court Re-
ports, 1870-1878.
Dougl. . . . Douglass's English King's IJcneli Reports,
1778-1781.
Dow. & Ivy. . . Dowling and Kvland's Englisli King's
Bench Reports, 182 1-18-27.
East . .
El. & Bl. . .
Kwell on Dis.
of Inf. . .
Ex.
Ex. Div. . .
Grant's Cas. .
Gratt. .
Gray . .
East's English King's Bench Reports,
1801-1812.
Ellis and Blackburn's English Queen's
Bench Reports, I8r)2-18.")8.
EwcU's Leading Cases on the Disabilities
of Infancy and Coverture. Chicago,
187(5.
English Exchequer Reports, 1847-18,^)0.
English High Court, Exchequer Division,
Reports, 187r)-
Grant's Pennsylvania Cases, 1852-1803.
Grattan's Virginia Reports, 1844-1881.
Gray's Massachusetts Reports, 1854-1800.
296
TABLE OF ABIiREVIATIONS.
8
)
\m i
31? ■
Ilalst. . . .
II. Black.
Hill . . .
II. L. C'iis. .
Hob. .
I low. . .
How. St. Tr. .
Hurl. & C. .
Ilml. & N. .
. Ilalstend's New Jerse}' Reports (Law),
1821-1831. «»
. Henry Blackstone's Knglish Common Pleas
Reports, 1 788-1 TDC.
. Hill's New York Reports, 1841-1844.
. English House of Lords Cases, 1847-18(1.").
. Hobart's English King's Bench Reports,
. Howard's United States Supreme Court
Rfp)rts, 184;5-18(;().
. IIowi-lI's Englisli State Trials, ll(;,'J-l.S20,
. Ilurlstune and Coltmau's English Ex-
chequer Reports, 1862-180').
. Ilurlstone and Xorman's English Ex-
chequer Reports, 18r)fi-18Gl.
Ill
Ind. . . .
Johns. . .
Kas. . .
Langd. Cas. on
Con. . .
LaAuson Cont.
Carr. . .
Law>! Us. .
»& ( . . .
Ld. Raym.
I^. J. (Exch or
Ch.) . .
L. R. C. P. .
L. R. Ex. . .
Illinois Supreme Court Reports, 1-S ID-
Indiana Supreme Court Reports, 1848-
Johnson's New York Reports, 1800-182;').
Kansas Supreme Court Reports, 1802-
I nngdell's Select Cases on the Law of
Contracts (2nded.). Boston, 1871).
Lawson on Contracts of Common Carriers.
St. Louis, 1880.
Lawson on Usages pnd Customs, with
Illustrative Cases. St. Louis. 1H81.
Raymond's (Lord) English King's Bench
Re,)orts, 1(;!)4-17.'U.
The English Law Journal, 1800-
English Law Reports, Court of Common
Pleas, 1S(;(;-187.").
English Law Reports, Court of Exchequer,
18GG-1875.
r '
TABLE OF ABBREVIATIONS.
2\)1
L. R. 11. L. . . English Law Reports, House of Lords,
18r)()-1875.
L. R. Q. B. . . English Law Reports, Court of Queen's
Bench, 1866-1875.
Mac lit G. . . Macnaghtcn and Gordon's English Chan-
cery Reports, 184'.)-18r)l.
Mason .... 3Iason's United States Circuit Court Re-
port:., 1816-18:50.
Mass Massachusetts Sui)reme Judicial Court
Reports, 1804-1822; 1867-
Me Elaine Supreme Court Reports, 1820-
Mee. & AV. . . Meesou & Wclsb^'s English Exchequer
Rei)orts, 1836-1847.
Mete Metcalf's Massachusetts Reports, 1840-
1847.
Mich jMiciiigan Supreme Court Reports, 1847-
Mo JMissouri Supreme; Court Reports, 1821-
N. J. (L.)
N. Y. . .
New Jersey Supreme Court Reports,
171)0-
New York Court of Appeals Reports,
1847-
Paige .
Reak. Ad. Cas.
Pet. . . .
Pick. . .
P. Wms. . .
. I'aige's New York Chancery Reports.
1828-184;").
. Peake's English Nisi Prius Cases (addi-
tional), 1790-1812.
. I'eters' I'nited States Suprenn; Court Re-
ports, 1827-1842.
. Pickering's Massachusetts Reports, 1822-
^42.
. Peere Williams's English Chancery Re-
ports, 16i)5-17;36.
'^Lh i'**'' '•
Mi
*'%!'* H
lifl
21)8
Q. B. . .
Q. B. Div.
TABLE OF AIJDUKVIATIOXS.
. Kn<rlish Queen's Bench Reports. 1841-
1852.1
. Knglish IlijTli Court, Queen's Bench Divi-
sion, llei)orts, 187")-
Salk Salkeld's EngUsli Kinj^'s Bench Reports,
ir)8<»-1712.
Sera'. & R. . . Sergeant nnd Rawle's Pennsylvania Re-
ports, 1S14-1S2S.
vShirley L(l. Cas. . Shirk'y's Leading Cases Made Easy. Lon-
don, 1880.
Sid Siderfin's English King's Bencli Reports,
ICoT-UlTO.
Skin Skinner's EiigUsh King's Bench Rci)()rts,
lG,Sl-ir.98.
Smith'sLd. Cas. . Smith's Leading Cases. -
Stra Strange's English King's Bench Reports,
171(;-174!).
Taun Taunton's English Common Pleas Re-
ports, 1S()8-181<).
Taylor's Treatise on Landlord and Tenant.
(7th ed.) Boston, 187!l.
Term Reports, English King's Bencii,
178r)-18()0.''
Thomp. Ld. Cas. . Tlionipson's Leading Cases on Carriers of
Carr. Pass. . Passengers. St. Louis, 1880.
Thomi). Ld. Cas. . Thompson's I^eading Cases on Negligence.
Neg. ... St. Louis, 1880.
Taylor's L. .
& T. . .
Tcr:n Rep. .
' This series is sometimes, though improperly, cited, Ad. & !•>.
(N. s.) after the reportt-rs, Adolphus and Ellis.
- The seventh Ainoricau edition of this great work was publislicd
in Philadelphia in 1S72.
■' This series is sometimes cited Durn. & E., after tlie names of
the reporters, Durnford anil East.
TAIU.K OF AUHREVIATIOXS.
299
,0:1-
Yes. , .
Vt. . . .
Willi. . .
Wall. jr. .
Wash. C. Ct
^V. Black.
Week. Rep.
Weiul.
Wheat.
AVils. . .
Willes . .
Tnited States Supreme Court Reports,
]S75-
Vesey's English Chancery Reports, 17H9-
1810.
Vermont Supreme Court Reports, 1820-
AVallace's United States Supreme Court
Reports, 180;5-1875.
AVtiUace's United States Circuit Court
Reports, 1812-1862.
Washington United States Circuit Court
Reports, 180;]-1827.
Blackstone's Enghsh King's Bench Re-
ports, 1746-1780.
English Weekly Reportei-, 1853-
Wendell's New York Reports, 1828-1841.
Wheaton's United States Supreme Court
Reports, 181»)-1827.
Wilson's English King's Bench Reports,
1742-1774.
Willes' s English Common Pleas Reports,
1737-1760.
II
1
fi'
'1 '
i \
i
^
fii
'!
i:ndex.
ABSENCE.
Party absent seven years without being licard from, presumed to
be dead, 278, "7'J.
ACCEPTANCE. (See also Sales.)
Offer does not make a contract till accepted, 1, 2.
Offer cannot be retracted after acceptance, ?>, 4.
Proposer may prescribe time, place and form of acceptance, G, 7.
But not of refusal, 8.
Offer must be accepted within reasonable time, 9, 10.
Acceptance must be identical with terms of offtu', 10, 20
Acceptance of altered proposal, 20, 21.
Of goods under Statute of Frauds, 08, 09, 70.
ACCIDENT.
Will excuse party from performing contract when, 113, 114.
Party not liable for injury resulting from unintentional accident,
215,
Presumption of negligence from happening of, 224, 225.
ACT OF GOD.
Contract made impossible by, promisor is discharged, 114, 115.
But not where performance is only " dangerous," 110, 117.
ACTION.
Forbearing to bring suit sulTicient consideration for contract, 32.
But not if there be no legal cause of action, 32, 33.
Local and transitory actions distinguished, 283, 284.
ACTORS .VND ACTRESSES. (See Tiieatuk.)
ADMINISTRATION OF JUSTICE.
Contracts to impede the, illegal, 89, 90.
*"• ementsto refer dispiue to arbitration, when legal, 91, 92
tVager as to whetiier prisoner will be convicted, illegal, 97.
ADMISSIONS, (Sje Eviokxck.)
AGENCY. (See Pkincii-ai, axu Agkxt,)
(301 )
w
Wit ;•■
■1 1
302
INDEX.
ALTERATION.
Acceptance of altered proposal, 20, I'l.
Unauthorized alteration of bill of exchange vitiates it, loS, loO.
AMBASSADORS.
Goods in houses of, privileged from distress, 184.
AMBIGUITIKS. (See Oual Evidknck.)
ANIMALS.
Wild animals ci - I listrained for rent, 184.
Liability of owucrior injuries by, 218.
"ANOTHER."
Promise to answor frw 'c^bt, . ^.. of, 03, 04.
APPORTIONMENT.
An entire contract cannot be apportioned, \2^^, 124.
Relaxation of this rule, 124, note.
ARBITRATION.
Agreements to refer disputes to, when legal, 91, 92.
ASSENT. (See Acceptance.)
AUCTIONS.
Bidding at, 5, G.
BAGGAGE.
What is "baggage " for which carrier is responsible, 212, 213.
BAILMENTS. (See also Cakriers: Innkeepers.)
The different kinds of, 194, 19.j, 190, 197, 198.
BANK BILLS. (See Neuotiable Paper.)
BANKER.
Not liable for paying altered chock negligently drawn, 100, 101.
Liable to action for dislionoring customer's check, 255.
BETTING. (See Wacjers.)
BILLS OF EXCHANGE. (See NEiioriAUi.i: Paper.)
BILLS OF LADING. (See Ne(;(<tiahi.e Paper.)
BOOKS.
Entries made by deceased party in course of business admissible
in evidence, 270.
Or if against his interest, 277, 278.
INDEX.
303
BORROWER.
Liability of borrower of chattel, 19(>.
BREACH OF PROMISE OF MARRFAGE.
Infant may sue, but cannot be sued for, 43, 4-1.
Promise to marry not within Statute of Frauds, 59.
Ou promise to marry at a particular time, action may be brought
before that time has arrived, 118, lit).
Action will lie for, 120.
Express promise need not be shown, 120, 121.
What are good causes for breaking; off entrageraent, 121, 122.
Party cannot act on rumors as to conduct of other, 122.
But may plead his or her conduct after engagement was broken
off, 122, 123.
BRIEF.
A model brief, 8'J.
BUGS. (See Fcunisiied Hou3K.)
CARRIERS.
Carrier of goods is an insurer, 108.
Responsibility of carrier of passengers for defective vehicle,
202, 203.
The responsibility of carriers of goods and passengers compared,
203, 7iote.
Duty of, to follow time tables, 204.
Power of carriers to lim't their liability by notice, 205.
Liability for injury to free passenger, 207, 208.
Travelling on "free pass" with condition, 209, 210.
Who carrier may refuse to carry, 210, 211.
What is " baiigage " for which carrier is responsible, 212, 213, 214.
CHECKS. (See Necotiabi-K Papeh.)
CHILDREN. (See Infancy.)
CHRISTIANITY.
Contract in furtherance of attacks on, illegal, 92, 93.
COHABITATION.
ast cohabitation no consideration for promise, 37, 38.
i^romise to pay money for future cohabitation, illegal, 37, 38.
COMMODATUM.
Detined and explained, 196.
V rrmi0i->vr^h' nam
304
INDEX.
mi
COMPETITION.
Contracts to restrain, illegal, 87, 88.
COMPOSITION.
No consideration for agreement to accept part of debt in payment
of whole, i}5, 3G.
CONSIDERATION.
Always necessary to support a contract, 28, 20.
Its adequacy is immaterial, 29, 30.
Consideration must be real, 30, 31.
Forbearance to sue sullicient, 32.
But not if there is no legal cause of action, 32, 33.
Promise to do what party is bound to do iusullicient, 34, 35, 3(i.
Moral obligation not sullicient, 3(5, 37, 3S, (15.
Past consideration will not support a promise, 38, 3'.).
Unless there was a previous reipiest, 39, 40.
Labor, though unsuccessful, a sullicient, 40.
Must be expressed in memorandum reciuired by Statute of Frauds,
(i2, 03.
CONSTRUCTION.
Contracts are construed liberally, 119.
CONTRACTS. (See Acceptanci; ; Considkuation ; Pkoposal;
Statutk of Frauds, and the various special titles.)
CONTRIBUTION.
A defendant in tort cannot recover contribution from co-aefend-
ant, 209, 270.
CONTRIBUTORY NEGLIGENCE. (See Nkui.I(;i:xck.)
COVENANTS.
Wliat covenants in deed " run with the land," 178, J79, 180.
Condition in lease if once waived is \\'iiive(l altogether, 180, 181.
CORPORATIONS.
Liable on contracts not under seal, 53, r>i, .55.
COURTS. (See Administhatiox ok JtsTici:.)
CREDIT. (See also Statutk ok Fkauds.)
Liability for falsely eulogizing another's credit, 245, 240, 247,
248.
CUSTOM. (See Usages and Custom-s.)
INDEX.
305
DAMAGE.
" Injury" without damage is actionable, 252, 253.
But not damage whentliere is no " injury," 253, 254, 255.
DA^^AG^:s.
Measure of damages on breach of contract, 125, 12(1.
Exorl)ltant agreements as to damages will not be enforced 12G,
127.
Dajnages iu actions of tort, 2(30, 207, 208, 209.
DANGKU.
That performancf! of contract is made dangerous by "act of
God" does not excuse, 110, 117.
DAY.
Several offences committed on same day ; one penalty only recov-
erable, 201.
DEATH.
Of principal revokes agent's authority, 140.
Parly absent seven years without being heard from presumed to
be dead, 278, 27!).
«' DEBT, DEFAULT, Oil MISCARRIAGE OF ANOTHER."
Promise to answer for, under Statute of Frauds, 57, 58, 03, 04.
DEPOSITUM.
Dellned and explained, 105.
DISCHARGE. CSee Pekkuumaxck.)
DISTRESS.
What goods on premises are privileged from distress for rent,
182, 183, 184, 185,
DIVORCE.
Does not affect life insurance previously effected, 189, 190, 191,
192, 193.
DRAINS. (See FruNisiiKi) House.)
DYING DECLARATIONS. (See Evidence.)
ELECTIONS.
Wagers on result of, void, 97.
Action against election officers for refusing vote, 252, 253.
20
^
i! 't
306
INDEX.
ESTOPPEL.
Forinur judfjment recoverod subse(|uently binding when, 280.
Party estopped from denying wliat lie lias said nnder hand and
seal, 2«1.
And also from denying statements on wliich others have acted,
281, 282.
EVIDENCE. (See Okal Evidence.)
Presumption of negligence from happening of accident, 224, 226.
Presumption of value against spoliator, 2o2.
Hearsay evidence generally inadmissible, 271, et aeq.
Except as to matters of public interest, 274.
Or on matters of pedigree, 274, 275.
Or adini.Hsion by party or agent, 275.
Or confession of person charged with crime, 275.
Or dying declarations, 275.
Or if part of tlie transaction, i.e. res gcKtit, 275.
Or declaration of deceased party in the course of Ida
business, 270.
Or against his interest, 277, 278.
Presumption of absence from deatli, 278, 270.
FALSE REPI{ESENTATIONS.
Railroad guilty of, in publishing incorrect time tables, 205.
Liability for making false representations on which another acts,
245, 24G, 247, 248, 24!), 250.
Party estopped from denying statements on which another has
acted, 281, 282.
FINDER.
Of property has title against every one but real owner, 251, 252.
FIRE. (See also Insurance.)
Destruction of hall by fire, discharges agreement to let it, when,.
113, 114.
Rent is payable for full term, though premises burn down, 165.
Liability of railroad for spread of, 241, 242.
FIRE-ARMS. (See Wakkanty.)
FIRE INSURANCE. (See Insurance.)
FIXTURES.
Right to fixtures annexed to land by tenant, 174, 175, 176, 177.
Cannot be dis ained for rent, 183.
H '1;
INDEX.
307
I'ORNICATION.
Clmr^in;? women with, not actionable per sc, 2(i3, 264.
FR.vrDULENT CONVKYANCES.
The law as to, 128, 12!), l.SO.
FUKK PASS. (Sec Caruikus.)
FUHNISIIED HOUSE.
That furnished house is infested with hugs good ground for tenant
leaving, 1«8, K.O.
So as to defective drainage, IGO.
GAMBLKUS.
M:iy be excluded by carrier from train, 210, 211.
"GOODS, WARES ANO MERCHANDISE."
Stocks are within these words, G5, CG.
Goods not in existence, (!G, G7.
Value of goods, G7, C8.
GRATUITOUS SERVICE.
Party undertaking to do thing without reward, is responsible for
negligence, 194.
GUARANTY. (See Cukdit; Stathtk of FimiDSj Waukanty.)
PT^FST
Traveller boarding at hotel by the week is a, 201.
HEARSAY. (See Evidenck.)
HIGHWAYS.
Rights of public over, 284, 285.
HIRER.
Of chattels liable only for negligence, 198.
HOUSE. (See also FrKNisiiKi. Hoi;sK ; Landlord and Tenant.)
A man's house is his castle, 258, 259, 2G0.
HUSBAND AND WIFE.
When husband liable for debts of wife, 45, 46, 47, 48, 49, 50.
ILLEGAL CONTRACTS. (See also Immoral Contracts.)
To pay woman for future cohabitation, .S7, ;?s.
To prevent competition for public service, 87, 88
To Influence legislative bodies or public officers, 88, 89.
To impede administration of justice, 89, 90.
308
INDEX.
ILLEGAL CONTRACTS — Continued.
To submit disputes to arbitration, 91, 02.
To rent rooms for Iccturo attackin<j Christianity, 92, 98.
Kxccutinji bond on Sunday, i>3, 94.
Wafers wlien Icjjal and wlicn illc'sal, Ofi, 97, 98.
In restraint of trade, 98, W, ino, lOl, 102.
In restraint of marrin'je, 102, 1015.
To \mn<i abont marriai;o, 10;5, 104, 105.
Court will aid neitlicr party to illegal contract, lOfi, 107.
Except where illegal purpose is not complete, 108, lOO.
IMMORAL CONTRACTS.
Sui>plying ;joods to prostitute for purpose of her trade, 95, 96.
IMMORALITY.
Charge of, not actionable prr se, 2(14, 2G5, 2(;)i, note.
IMPLEMENTS OK TRADE.
Are i)rivilei;ed from distress, 1H4.
IMPOSSIBILITY OF PERFORMANCE. (See Pkhkoumance.;
"IMPUTED NEGLIGENCE." (See Neglioknce.)
INDECENCY.
Wagers on indecent subjects void, 97.
INFANCY.
Contracts of iafants void, valid and voidable, 41, 42.
Except for necessaries: what are "necessaries," 42, 43.
Infant may sue, but cannot be sued for breach of promise to
marry, 43, 44.
Child of tender years not legally guilty of contributory negli-
gence, 237, 238.
But negligence of parent may be " imputed" to child, 239.
IN.JUNCTION. (Sec Theatre.)
INN-KEEPERS.
Liability of inn-keepers for goods of guest, 199.
Traveller boarding at liotel by the week is a " guest," 200, 201.
INSANITY.
Lunatics not liable on their contracts, when, 50, 51, 52.
But liable for torts, 52, 53.
INSURANCE.
Concealment of material facts by insurer, 18(1, 187.
Fire insurance — customary use of i)rohibited article, 187, 188.
Who may insure life of another, 189, 190, 191, 192, 193.
INDKX.
30f>
JOINT AND SKVKHAL MABILITIKS.
ArUiiowlediiiiu'iit by om- of two joint milkers of note binds the
other, \^>'^, IC.-t.
One joint wron<i-(loer can not recover from oth r, !.'<'.!>, \>'0.
LAUOK.
Thou^li unsuccessful Is a sufficient consideration for a contract, 40.
LANDLORD AND TKNANT.
Rentini; rooms for lecture uttacliinii Christiauity, illcjial, O'J, m.
Destruction of hall by tiro discharges agreement to rent it, when,
U.S, 111.
Payin::; rent for premises destroyed by (ire, IGo.
No warranty on l)art of landlord as to condition of house rented,
KK!, lf)7.
Except the house is a furnished one, HiS, lOi).
Effect on tenant of landlord mortgagiu"; the premises, u;'.», 170,
171.
Tenant entitled to way going crop by custom, 171, 172.
Leases for more than three years uuist l)e in writing, 172, 173, 174.
But parol agreement may regulate terms in other respects,
172,17:5,174.
The law as to fixtures placed on land by tenant, 174, 175, 17(1, 177.
What covenants in lease "run with the land," 178, 170, 1«0.
Condition in lease if once waived is waived altogether, ISO, 181.
What goods on premises are privileged from distress for rent,
182, 183, 184, 185.
Injury to one coming on another's premises, 221, 222.
Tenant generally liable for injuries caused byuon-repair of build-
ing, 2'_'3.
Exceptions to this rule, 223, 224, note.
LANDS.
What is an " interest in or concerning lands " withm Statute of
Frauds, 5'.), GO.
Liability for injury caused by removing support of land, 220, 221.
LAW.
Where law renders performance of contract Impossible, promisor
is excused. 111, 112.
LEASE. (See Landlord and Tenant.)
LEGISLATURE.
Agreement to influenceiegislatlve bodies, illegal, 88, 89.
3ii
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i f
i
I
810
INDEX.
LIBEL.
Distinction between libel and slander, 266, note.
LIMITATION.
Acknowledgment by one joint maker of note binds other, 16?, 164.
LOCAL ACTION. (Sec Action.)
LOC.VTIO liEI.
Delined and explained, 198.
LOCATIO OPERIS FACIENDI.
Defined and explained, 198.
LUNATIC. (See Insanity.)
MAGISTRATE.
Action ajj;ainst, for assessing? wrong penalty, 261.
MALICIOUS PROSECUTION.
Action for, when sustainable, 262, 263.
MANDATUM.
Defined and explained, 195.
MARRIAGE. (Sec also Bkkach ok Pkomise ok Mahkiagk; Hus-
HAXI) AM) WU'E.
Wager that a i)arty will not marry, void, 97.
Contracts in restraint of, illega], 102, 103,
Contracts to bring about, void, 10.'?, 104, 105.
MASTER AND SERVANT. (See also Pkixcipal and Agent.)
On contract of hiring to begin at a particular time, if nmster re-
fuses to perform, servant may bring action before that time
arrives, 117, 118.
Inn-keeper liable for goods of master in possession of servant,
201.
Responsibility of master for acts of servant, 225, 226.
Person not liable for negligence of independent contractor, 227,
22!S.
Exceptions to this rule, 228, 229, notr.
Lial)ility of master for injury to fellow servant, 229, 230, 231, 232.
Driver of horse-car not servant of passengers, 23.j, 236.
Action for inducing servant to break contract 26;j, 260.
MEASURE Ol' DAMAGES. (See Damages.)
MISTAKE. .
As to person contracting, 23, 21.
it
INDEX.
311
i3, 1G4.
MISTAKE — Continued.
As to thing contracted for, 25.
Money paid under mistake of law cannot bo recovered, lao, 131.
Different if tlic mistalce is one of fact, 131, 132, note.
"MONTE-MAN." (See Gamulkks.;
MORAL OBLKxATION. (See Coxsidkkatiox.)
MORTGAGE.
Mortgage of property, mortgagor remaining in i)ossession, 128,
121), 130.
Effjct on tenant of mortgage of premises by landlord, 100, 170,
171.
MUTUUM.
Deflned and explained, V.)i\.
i\
NECESSARIES. (See Infancy; IIis»anm> and Wife.)
NEGLIGENCE. (See also Cauuikks.)
Banker not liable for paying altered check negligently drawn, IGO,
U'A.
Person undertaking gratuitous service is Table for negligence,
194, 11)5.
Carrier c innot exempt himself from liability for negligence, 210.
Party not liable for injury caused t)y uniutenlioual accident, 215.
One accumulating dangerous things on land liable if they escape
and do injury, 21(!, 217.
Unless escape was caused by act of God, 217.
Or of third party, 217.
Liabilities for injuries by animals, 218.
Selling p'.)lsi)n with harmless label, 210.
Renioviug support of land, 2i;t, 220.
Injury to person coming on another's premises, 221, 222.
Injury caused by non-repair of l)uilding, 223.
Presumption of njgligeuco from happening of accident, 224.
Liability of master for wilful acts of servant, 225, 22(1.
Employer not lial)le for^negligence of independent contractor, 227.
Liability of master for injury to fellow-servant, 22!>, 230, 231, 232.
Contril)Utory negligence bars party's action for injury, 233, 23-t.
Exception to tins rule, 234, 235.
Imputed negligence, 235, 23(1.
Contributory negligence of children, 237, 238
Contributory negligence of parent, 231>.
Proximate and remote cause, 210, 241, 242.
: '
I I!
312
INDKX.
NEGOTIABLE PAPER.
A i)r()inissory noto imist be payablu at a time crrt'iiu, l'>:\, I'A.
IBank notes pass a fi;oo(l title l)y delivery, 154, 155.
Who is a " holdex' for value ;" antecedent debt a good eonsidera-
tion, 155, 15G.
Notice of dishonor, when necessary, 157, 158.
Unauthorized alteration of bill of exchange vitiates it, 15S, \:>'.).
Negligence in drawing clu.'cl<, HiO, 101.
Stoppage in transitn defeated by bonafldc, indorsement of bill of
lading, ICl, 1(12, ICS, note.
NOTICES. (See Carkikus.)
NUISANCE.
Distinction between injury to property and personal discomfort,
243, 241.
Liability for injury to property by smoke from factory, 243, 244,
245.
i
OFFER. (See Pkoi-osal.)
OFFICERS. (See Priu.u; Okfickus.) '
ORAL EVIDENCE.
Contracts contained in several documents cannot be explained
by, 71, 72, 73.
Not admissible to vary written contract, 74, 75.
But adinissit)le to sliow tliat tliere is no agreement at all, 7<5.
Latent ambiguity may be explained, 77, 78.
But not patent ambiguity, 78, 7D.
S ipplemeutary contract may be sliown by, 71), 80.
Usages of trade may be shown, 80, 81, 82, 83, 84, 85.
But not if they contradict contract, 85, 86.
PARENT AND CHILI). (See also Inkaxcy.)
Son not bound to pay pa-^t expenditures of parent, 3(!, 37.
Moral obligation not sulflt^ieut consideration for contract, 3(1, 37.
PARTNERSHIP.
Wlien persons liableas partners, 150, 151, 152.
PASSENGERS. (See Cakkikus.)
PAST CONSIDERATION. (See Consideration.)
PAWNS.
The law as to, 197.
INDEX.
313
I'AYMENT. uavraeut of whole, nudum
Agreement to receive part of aeot m paymcu
pactum, 35, 3().
rEDIGREE. (See Evidence.)
PENALTIES. • ' ^
same day, 2G1.
^"■iS'";Iofsupre,nc court C, oo rauroa. <,ues.,o„s v,ewe. wit.
suspicion, 230, 7»o(e.
''™,v,fon„*mcf •• .nulcr Statute o, Frau,ls, meaus .ou>pi.tlo„, 12.
Act otoue Pa"y u,aWius pertormauc. i.upossibl. by other cUs-
J,;S luX'ib.0 by act of law .-.charges P-ty, ul, m.
S:.,uR.rc'l n»po»»iblo l,y accldout, wl.eu party d,,charge<,, 113,
J,;;;;,iJL„ C cou.ract byoue party before tl.eoi per.oru>.
nnro ffives otlicf rii,'lit to sue inslanWr, U-, U», ^i-'-
CoX S mu^t be entirely performed or party can recover noth-
ing, 123, 124.
Relaxation of this rule, 124, 7iote.
PIGNORI ACCEPTUM.
Detined and explained, 197.
"" Ceml'fty lu Pleadlug not ,o lu.portaut a» formerly, 284, 285.
'''iSty for »elll, g pol«.u wltU h.rmlcs label, 2.», 220.
POST. . , .
Contracts by, 7, 11, l-Nl^^l^'^"' ^''•
PHESUMl»TION. (See Evii.enck.)
PUIXCIPAL AND AGENT.
V special agent must strictly pursue his authority, 139
i)eath of principal revokes authority of agent, 140.
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lit
Iff
I
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314.
INDEX.
PRINCIPAL AND AGEiJiT— Continued.
Contracts with agents of undisclosed principals, 141, 142, 143,
144, 145.
Party described in contract "as agent" may still be liable as a
principal, 145, 14G.
Set-off of debt of agent against claim of principal, 14(1, 147.
Agent exceeding authority liable in contract, 148, 14!).
Admissions of agent bind principal, 275.
PRIVITY.
Not necessary to support action, wlien, 219, 220, 248, 249, 250.
PROMISSORY NOTES. (See Negotiablk Paper.)
PROPOSAL.
Does not make a contract till accepted, 1,2.
Cannot be retracted after acceptance, 3, 4.
Proposer may prescribe time, place, and form of acceptance, 6, 7.
But not of refusal, 8.
Must be accepted within reasonable time, 1), 10.
Acceptance nmst be identical witli terms of offer, 19, 20.
Acceptance of altered proposal, 20, 21.
Proposal to unascertained person, 22.
PROSTITUTE.
Price of goods supplied to, cannot be recovered when, 95, 96.
PROXIMATE AND REMOTE CAUSE.
The "Squib'' Case, 240, 241.
Liability of railroad for spread of Are, 241, 242.
In action for slander, 260, 20".
PUBLIC OFFICERS.
Agreement to influence, illegal, 88, 89.
PUBLIC POLICY. (See Illegal Contuacts; Waqbbs.)
RAILROADS. (See Cauiuehs.)
RECEIPTS.
Tiie policy of preserving receipted bills, 130, 131.
REFUSAL.
Proposer cannot prescribe terms of, 8.
RELIGION. (See Chuistianity.)
REPRESENTATIONS.
Representations and warranties, 26, 27.
INDEX. 315
RES GEST.T5. (See Evidence.)
RESTRAINT OF TRADE.
Contracts in, void, '.18, <.)'.», 100, 101.
Unless restraint is partial and reasonable, 101, 102.
RETRACTION.
Offer cannot be retracted after it is accepted, 3, 4.
REWARD.
Offers of, 0, '-'2.
RUMORS.
Cannot affect rights of party, when, 122.
SALES. (See also Statute or Frauds.)
When sale is complete, property passes at once, 132, 133.
Unless something remains to be done, 133, 134.
When party selling goods is presumed to warrant them, 134, i35,
13(;, 137.
Warranty made after sale, void, 138.
SATISFACTION. ^ . ,^ ,,,
Agreement to make a thing to one's satisfaction, 18, IJ.
^''ciollngl'chool on account of small-pox does not discharge direc-
tors from paying teacher's salary, UC, 117.
SEAL. (See Coui'OKATIONS.)
^'promi^fto'pay woman a sum of money for past cohabitation,
nudum pactum, 37, 3S. _
If for future cohabitation contract is illegal, 3*, 3H.
^ m' d^!^' of agent against claim of principal, when allowed, 14G,
147, 148.
SIIKLP.
Privileged from distress for rent, l»o.
^'l^uln'^igainut, for breaking into house, when maintainable, 238,
251), 2(i0.
^'E^d^nLhich causes closing of school, does not relieve direc-
tors from payment of teacher's salary, 11 »>, 11- •
Contract of pianist to perform excused by, 114, 116.
' r
■■■■■Hi
! W
316
INDEX.
SLANDER.
Defamatory words, when actionable and when not, 2(13, 204, 2r.,''>.
Distinction between slander and libel, 2(j(>, note.
SMALL-POX.
Breaking out of, rendering it necessary to close school, does not
discharge directors from paying teacher's salary, 110, 117.
SMOKE. rSce NfisANCT,.)
STATUTE OF FRAUDS.
The provisions of the, explained, 50, 57.
Promise to answer for " debt, default, or miscarriage of another,"
57, 58, 03, 04.
Promise " in consideration of marriage," 5i).
What is an " interest in or concerning lands," 59, 60,
Contracts "not to be performed within a year," GO, 61, 62.
"Performance" means completion, 72.
Consideration must be expressed in memorandum, 02, 03,
StocliS are " goods, wares and mercliaudise " within, 05, 66.
Goods not in existence, 60, 67.
Value of goods, 07, 68.
Acceptance and receipt of goods under, 68, 0!», 70.
Oral evidence not admissible to vary contract, 74, 75.
Leases for more than three years required t(j be in writing by,
172,173, 174.
But parol agreement may regulate terms in other respects,
172, 173,174.
STATUTES.
Contracts violating statutes are void, '.)3, !)4.
Wagers when prohil)ited by, are void, 98.
STOPPAGE IN TRANSITU.
Right to, defeated by bona fide indorsement of bill of lading, 161,
162, 163, note.
SUNDAY.
Executing bond on Sunday illegal, 93, 94.
SUPPORT OF LAND. (See Lands.)
THEATRE.
Contract of pianist to perform excused by sickness, 114, 116.
Penalty in contract of actor for failure to act, 120, 127.
Rival manager liable for inducing actress to break her contract,
268, 269.
INDEX.
317
THE ATRK — Continued.
Actress may be prevented by injunction from performing at rival
tlieatre, 2(J8, note.
THIEF.
May give good title to stolen banli-note by delivery, 154, 155.
TIME-TABLES. (See Cauuikus.)
TRADE. (See Ukstr.vint of Tkade.)
TRANSITORY ACTION. (See A('TI()n\)
TRESPASS.
Wlio are trespassers ah initio, 25(1, 257, 258.
TROV^ER.
One witii riglit to possession of cliattel may maintain, 251, 252.
TRUST.
Is the cover of fraud, 130.
UNCERTAINTY.
Terms of a;;roement must be certain, It!, 17, 18.
Agreement to mal<e a tiling to one's "satisfaction," 18, 11).
USAGES AND CUSTOMS.
Oral cvidcjice of, admissible to explain written contracts, 80, 81;
82, 815 81, 85.
But not to contradict them, 85, Si;.
Custom giving tenant way-going crop valid, 171, 172.
VADIUM.
Dellned and explained, 197.
VALUE.
Of goods under Statute of Frauds, 07, ()8.
Presumption of value of thing as against wrong-doer, 252
VENUE. (See Action.)
\va(;ers.
Legal at commou law, OU, 07.
Unless against public policy, indecent, etc., 07.
But generally prohii)ited by statute, '.t8.
WAIVER.
Condition in lease if waived once is waived altogether, 180, 181.
318
INDKX.
WARRANTIES (See also Insurance; Salks.)
Effect of "breach of warranty, 20, 27.
No warranty by landlord as to condition of promises leased, liUT,
. 1G7.
1 Except in the case of a furnished house, 108, 10!).
Warrant of safeness of gun which afterwards bursts, 248, 24'.),
250.
WATER-COURSES.
Injury to, not actionable when, 253, ?54. *
WITNESS.
f
Promise to pay witness more than his lefial fees, void, 34.
WRITINGS (See Statutk ok Frauds ; Okai. Evidbnck.)
YEAR. '
Contracts not to be performed within a, GO, 01, 62.
" Performance " means '* completion," 7?.
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i48, 24!),