w I I 3$*" i THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW s •• { Attorney at Law* HUMBOLDT, Richardson Co. NEBRASKA V 4 "•- ' > THE LAW OF CONTRACTS AND PROMISES eapon V avion* Subjects AN» WITH PARTICULAR PERSONS. AS SETTLED IN THE ACTION OF ASSUMPSIT. IN THREE PARTS. A BY SAMUEL COMYN, ESQ. OP THE MIDDLE TEMPLE, BARRISTER AT LAW. If- THE THIRD AMERICAN, FROM THE LAST LONDON EDITION .WITH NOTES, AND REFERENCES TO AMERICAN AUTHORITIES. BY THOMAS HUNTINGTON, COUNSELLOR AT LAW. NEW YORK: COLLINS AND HANNAY PEARL STREET. 1831. E. & G. Merriam, Printers, Brookfield, Mass. r C1392 c SOUTHERN DISTRICT OF NEW YORK, SS. BE IT REMEMBERED, that on the 16th day of April, A. D. 1S31, in the 55th year of the Independence of the United States of America, Collins & Hannay, of the said District, have deposited in this office, the title of a Book, the right whereof they claim as Proprietors in the words following, to wit : "The Law ofContracts and Promises upon various Subjects and with particular Persons, as settled in the action of Assumpsit. In three Parts. By Samuel Comyn, Esq. Of the Middle Temple, Barrister at Law. The Third American, from the last London Edition ; with Notes, and References to American authorities. By Thomas Huntington, Counsellor at Law." In conformity to the Act of the Congress of the United States, entitled, "An Act for the encouragement of Learning, by securing the copies of Maps, Charts, and Books, to the authors and proprietors of such copies, during the time therein mentioned." And also to an Act.entitled " An Act, supplementary to an Act, entitled an Act for the encouragement of Learning, by securing the copies of Maps, Charts, and Books, to the author? and pro- prietors of ^such copies, during the times therein mentioned, and extending this benefits thereof to the arts of designing, engraving, and etching historical and other prints.* & « £ ^^ *4^ ^ Cmk of mMttheiTViWm^reto York. • • ADVERTISEMENT A new Edition of this Work having been called for, the Author has carefully reviewed the various subjects of which it treated ; and, to render the Work as generally useful as possible, has thought it advisable to make an en- tirely new arrangement. He has also abridged many of the cases cited in the former Edition, and added such as have been determined since its first Publication. The present Edition is now submitted to the Public in the hope that the Work will still be found, as the Author originally intended it to be, a useful book of reference ; and that it will save the necessity of a long and laborious research into a vast variety of detached reports of cases which the particular subjects here treated of embrace. s. a Serjeant's Inn, Fleet Street, July 1st, 1824. TABLE OF THE CONTENTS. PART THE FIRST. CHAPTER I. Page OF the General Nature and Parts of a Contract and Promise. 1 CHAPTER II. 1. OF the Construction of Contracts and Agreements ; And of a Penalty or Stipulated Damages annexed- 2. Of the Cancelling and Rescinding of a Contract. And 3. Of the Performance of a Contract. 23 CHAPTER III. OF the Stamping of Contracts and Agreements. 44 CHAPTER IV. OF Contracts and Promises declared Illegal by the Common and Statute Law. 53 CHAPTER V. OF the Statute of Limitations, or within what Time an Action upon Promises must be brought 68 VI TABLE OF THE CONTENTS. PART THE SECOND. OF THE SUBJECT MATTER OF CONTRACTS AND PROMISES. CHAPTER I. Page OF Contracts for the Sale and Delivery of Goods, &c, and of the Statute of Frauds relating thereto ; and also of Warranties on Sales by Sample or otherwise. 77 CHAPTER II. OF Guarantees or Promises to be answerable for the Debt or Default of Another ; and of the Statute of Frauds relating thereto. 189 CHAPTER III. OF Contracts for Services and Works. 231 CHAPTER IV. ON Promises to Pay over Money Had and Received By One Person to the Use of Another ; and in what cases an Action lies for the Recovery thereof. 266 CHAPTER V. ON Promises to Repay Money Lent and Advanced. 382 CHAPTER VI. ON Express and Implied Promises to Repay Money Paid, laid out, and expended to and for the Use of Another. 389 CHAPTER VII. ON Promises to Pay Money Due upon an Account Stated. 417 TABLE OF THE CONTENTS- VH CHAPTER VIII. Page ON Promises to pay Interest ; and upon what Con- tracts or Debts Interest is Recoverable. 420 CHAPTER IX. OF Contracts to Accept or Transfer Public Stock. 426 CHAPTER X. OF Agreements not to carry on Trade within certain Limits, &c. 438 CHAPTER XI. OF Agreements for the Sale or Relinquishment of Of- fices, &c. 443 CHAPTER XII. OF Contracts to Marry : and of Agreements to Pay Money in Consideration of Marriage ; and of the Statute of Frauds relating thereto. 453 PART THE THIRD OF CONTRACTS AND PROMISES BY AND BE- TWEEN PARTICULAR PERSONS. CHAPTER I. OF Contracts By and Between Partners ; and Who may be Deemed a Partner, and made Liable to Partnership Debts and Contracts : And How Part- ners must Sue and be Sued. 463 CHAPTER II. OF Contracts By and Between Master and Servant. 521 Vlll TABLE OF THE CONTENTS. CHAPTER III. OF Contracts with Factor, Broker, or Agent on behalf of his Principal, and of their respective Liabilities. 535 CHAPTER IV. OF Contracts with Agents of Government, or other Public Bodies ; or with an Officer in the Army on Behalf of a Regiment, &c. 563 CHAPTER V. OF Contracts with Carriers, Wharfingers, and Ware- housemen ; and their respective Liabilities. 568 CHAPTER VI. OF Husband and Wife ; and of Contracts made by the Wife before and after Marriage ; and of their respec- tive Liabilities : and of Contracts made with Per- sons living together as Man and Wife. 598 CHAPTER VII. OF Contracts with Infants ; and of the Liability of Pa- rent or Child for Necessaries. 618 TABLE OF THE CASES CITED. A. Abbotts v. Barry Abel v. Sutton Adam v. Richards Adams v. Lindsell v. Fairbairn Agace, Exparte Alcinbrook v. Hall Alderson v. Pope Aldridge v. Ewen Alfred v. Marquis Fitzjames v. Home Allen v. Burnet v. Impet v. Dundas Alpass v. Watkins Alves v. Hodson Amie v. Andrews Anchor v. The Bank of Engl Anderson v. Heyman v. Scott Andrew v. Robinson Andrews v. Cawthorne Anstey v. Marden Arden v. Sharp v. Rowney Arundel v. Trevilian Astley v. Reynolds v. Weldon Atkinson v. Ritchie Aubert v. Walsh Austen v. Craven Ayliff v. Archdale B. gaglehole v. Walters Bainbridge v. Pickering Baker v. Charlton Baldey v. Parker B Page 170. 277 493 127 107 315 484 385 481 533 530 577 98 302 348 307 46 220 294 192 89 275 379 199 492 281 56 339 33 109 373 148 626 and 121 624 465 86 Ball v. Dunsterville Banfill v. Leigh Bank of England v. Glover Barber v. Fox v. Dennis Barclay v. Gooch Baring v. Corrie Barjeau v. Walmsley Barker v. Sutton Barley v. Gouldsmith Barlow v. Broadhurst Barrett v. The Duke of Bedford Barrow, Ex parte Bartlett v. Viner v. Tuchin Barton v. Glover v. Hanson Baston v. Bennett v. Butter Bate v. Cartwright Beauchamp v. Borrett Beaumont v. Meredith Becher v. Jones Beck v. Evans Bedford v. Deakin Bedwell v. Cotton Bell v. Drummond Bellairs v. Ebsworth Bennett v. Farnell Berry v. Young Bevan v. Hill Bever v. Tomlinson Biddle v. Levy Biggs v. Lawrence Bilbie v. Lumley Bingham v. Serle Bird v. Randall Birkett v. Willan Bishop v. Shillito Bize v. Dickason Blachford v. Preston 64. Page 503 554 384 217 527 400 535 384 106 129 419 410 474 261 308 32 480 225 239 273 332 474 424 577 507 215 529 212 293 328 184 588 169 177 338 306 38 579 185 338 451 TABLE OF THE CASES CITED. Blenkinsop v. Clayton Bloxam v. Pell Bodenham v. Bennett v. Purchas Bolton v. Prentice v. Richards Bonbonus, Exparte Bond v. Gibson Bonnel v. Foulk Bordenave v. Gregory 344. Bosanquet v. Wray Bosden v. Sir John Thinn Bourne v. Mason Boydell v. Drummond Boyter v. Dodsworth Brand v. Boulcott Bree v. Holbeck Brett v. Pretyman Bridge v. Wain Brisbane knt. v. Dacres Bristol, Earl of, v. Wilsmore Bristow v. Waddington i ■". Taylor v. Eastman Brook v. White Brown v. Dixon v. Hodgson v. M'Kinally Browne v. Garborough Browning v. Morris Bruce v. Hunter Buchanan v. Parnshaw Buck v. Buck v. Hatfield Buckler v. Buttivant Buckman v. Levi Buckmyr v. Darnall Buller v. Harrison v. Fisher Bunn v. Guy Burdon v. Webb Burgess v. Merrill Burrough v. Skinner Butler v. Heane Butterfield v. Burroughs Button v. Corder Butts v. Swann Byne v. Playne C. Caldwell v. Ball Calton v. Bragg Cailiff v. Danvers Camfield v. Gilbert Camm v. Alder Campbell r. Hall Page 89 469 578 513 602 183 495 483 579 434 472 17 21 233 377 402 317 221 118 336 173 66 508 620 181 243 391 341 458 376 425 127 364 158 397 140 190 299 588 441 415 483 272 575 124 118 52 222 Cannan v. Bryce Carlen v. Drury Carter v. Toussaint Cartwright v. Rowley Case v. Roberts Castling v. Aubert 198. Catt v. Howard Chalie v. Duke of York Chambers v. Griffith Champion v. Plummer v. Short Chandelor v. Lopus Chandler v. Parkes Chaplin v. Rogers Chater v. Beckett Cheap v. Cramond Chesby and wife v. Nain Child v. Hardyman Chorley v. Bolcot Clark v. Shee v. Noel Clarke v. Hutchins v. Glennie Clay v. Willan Clayton v. Andrews v. Hunt Clayton's case Clugas v. Penaluna Cobban v. Downe Cobden v. Kendrick v. Bolton Cockshott v. Bennett Coggs v. Bernard 14. Cole v. Gower Collins v. Blantern Colt v. Netterville Cooke v. Munstone v. Oxley 79. v. Ludlow Coope v. Eyre Cooper v. Smith v. Elston v. Martin Cork v. Baker Cotton v. Thurland Cox v. Prentice Cowell v. Edwards Cowley v. Dunlop Cowlin v. Cooke Crawshay v. Eades v. Maule 165 Crifford v. Berry 420 Cripps v. Read 593 Crockford v. Winter 316 Crow v. Rogers 273 Cuff v. Penn 357 I Cuming v. Brown Pag« 387 473 89 324 301 . 299 503 424 Sll 97 105 120 629 88 201 471 439 613 246 375 183 140 417 573 82 576 510 64 592 344 576 20 242 316 53 85 321 108 137 476 98 94 630 457 272 299 401 397 214 156 465 278 317 297 21 92 165 TABLE OF THE CASES CITED. XI Cummingv. Roebuck Curteis v. Bridges Curtis v. Hannay, baronet D. Dale v. Birch v. Hall Davis v. Edgar v. Mason v. Reynolds ■ v. James Davies v. Pinner Davison v. Heslop Dawes v. Peck Dawson v. Linton - ■ v. Remnant Page 103 527 128 351 585 364 441 158 582 424 215 583 394 418 480 283 600 424 501 De Berkom v. Smith De Bernales v. Fuller De Gaillon v. L'Aigle De Haviland v. Bowerbank Denton v. Rodie Derry v. The Duchess of Mazar- ine 600 De Silvale v. Kendall 326 De Symonds v. Minchwich 179 Devaynes v. Noble 510 Dew v. Parsons 354 Dewberry v. Chapman 325 Dickenson v. Lilwal 104 Dimsdale v. Lanchester 292 Dowe v. Holdsworth 512 Drinkwater v. Goodwin 560 Drury v. Defontaine 60 Dry v. Boswell 473 Duff v. India Company 508 Duke of Norfolk v. Worthy 305 Duncan v. Skipwith 290 Dunlop v. Waugh 126 Durant v. Titley 612 Dutch v. Warren 322 Dutton and wife v. Pool 21 E. Eades v. Vandeput 527 Eagleton v. East India Com- pany 135 Eardley v. Price 258 East India Company v. Pullen 590 Edwards v. Hodding 309 v. Sherratt 588 Egerton v. Matthews 95. 206 Eagles v. Vale 416, 417 Eland v. Karr 183 Elliott v. Edwards Ellis v. Hunt v. Hamlen v. Mortimer v. Turner Elmore v. Stone Elsee v. Gatward Elton v. Brogden Emanuel v. Dane Emly v. Lye Errington v. Aynesley Etherington v. Parrott Evans v. Bennett v. Martlett Evelyn, bart. v. Chishester Everett v. Collins Ewers v. Hutton Exall v. Partridge Eyles v. Faikney F. Farebrother v. Ansley Farmer v. Robinson Farnsworth v. Garrard Farrer v. Nightingale v. The Countess Dowa- Pagc 316 153 238 106 580 89 241 125 130 499 32 607 302 584 626 184 605 393 415 104. ger of Granard Favenc v. Bennett Feise v. Wray Fell v. Brown Feltham v. Terry Fenner v. Meares Fenton v. Emblers Fielder v. Starkin Fish v. Hutchinson Fisher v. Leslie v. Samuda Fleming v. Simpson Fletcher v. Dyche Flureau v. Thornhill Ford v. Fothergill Fores v. Johnson Forsyth v. Jervis Fortune v. Lingham Forward v. Pittard Foster v. Stewart v. Scarlett Foster's Case Fuller v. Abrahams Fydell v. Clark Fytche v. Bishop of London G. Gale v. Reed 404 545 240 314 602 549 158 247 347 281 232 126 200 47 187 188 31 310 625 178 185 322 569 259 14 16 134 289 56 442 xn TABLE OF THE CASES CITED. Gallini v. Laborie Gallway v. Matthews Gardiner v. Gray Garforth v. Fearon Garment v. Baivs Garrett v. Taylor Garsitle v. The Proprietors of the Trent and Mersey Navi- gation George v. Claggett Geraldes v. Donison Germain v. Burrows Germaine v. Barton Gibbon v. Paynton Giles v. Edwards Gillan v. Simpkin Gillett v. Mawman Glyn v. Hertel Glyn, Bart. v. Baker Godfrey v. Turnbull Golden v. Manning Goodall v. Skelton Goode v. Jones ■ v. Harrison Gordon v. Martin — — v. Swan Gouger v. Jolly Gouthwaite v. Duckworth Govier v. Hancock Gower v. Popkin Grace v. Smith Graham v. Hope v. Tate . v. Jackson Grant v. Vaughan Gratland v. Freeman Greave3 v. Ashlin v. Hepke Green v. Austin Greenway v. Hurd Grimaldi v. White Groning v. Mendham Groves v. Buck Gunnis v. Erhart H. Hagedorn v. Laing Hall v. Odber Hammond v. Anderson Hamper ex parte Hanson v. Roberdeau v. Meyer v. Armitage Hardress v. Prowd Page 256 497 113 413 125 515 570 551 336 131 187 572 323 326 259 209 277 505 580 142 298 483 260 424 579 479 613 341 469 504 394 108 282 522 131 149 353 356 186 139 83 309 Harman v. Anderson Harris v. Huntback . v. Richards v. Morris Hardy v. Martin 108. 131 419 144 473 309 145. 160 93 255 33 Harris's Case Harrison v. Jackson . v. Cage Hartley v. Rice Harvey v. Gibbon Hasser v. Wallis Hatchett v. Baddeley Hawkins v. Rutt Hawkshaw v. Parkins Hayward v. Scougall Hazard v. Treadwell Hebden v. Rutter Heckscher v. Gregory Henderson v. Wild Hereford v. Powell Hern v. Nichols Hesketh v. Blanchard Heyman v. Neale Hiccoxv. Proud Hicks v. Hicks Higgins v. Sargent Highmore v. Primrose Hill v. Gray Hilberds v. Pettipierre Hinde v. Waterhouse v. Whitehouse Hiscox v. Greenwood Hoare v. Dawes Hodge v. Vavisor Hodges v. Hodges Hodgson v. Davies v. Le Brett v. Loy Hogan v. Shee Holcombe v. Hewson Holman v. Johnson Holmes v. Blogg Holt v. Ward Hope v. Cust Horsfall v. Handley Horsley v. Bell Houlditch v. Desanges v. Milne Houle v. Baxter Howard v. Castle Howard v. Hopkins Howe v. Palmer Howes v. Martin Howson v. Hancock Hudson v. Granger v. Robinson Humphries v. Carvalho Hunt v. Bate Page 87 193. 382 215 604 16 503 453 456 22 350 609 184 504 108 522 12 432 507 561 545 478 103 264 333 422 418 186 58. 81 94 100 525 474 19 605 39 89 157 349 118 175 482 454 487 380 667 153 197 396 133 38 90 395 374 549 502 107 15 TABLE OF THE CASES CITED. xai Hunt v. Silk Hutton v. Eyre v. Mansell I.J. Jackson v. Dwchaise Jacques v. Golightly Jee v. Thurlow Jennings v. Harley v. Rundall Jestons v. Brooke Jeudwine v. Slade Jewry v. Bush Ingram v. Shirley 135. 185, Johnson v. Johnson v. Hudson v. Collings Jones v. Bowden v. Clark v. Cooper . v. Brinley Irvin v. Wilson Israel v. Douglas Izett v. Mountain Page 313 403 454 L. Laing v. Fidgeon Lamb v. Bunce Langston v. Corney Langton v. Hughes La Neuville v. Nourse Law v. Hodgson Layfield's case Leake v. Lord Pigot Lee v. Munn Leery v. Goodson Leggett v. Cooper Le Sage v. Cousmaker 171 374 611 216 619 367 119 265 418 312 178 288 118 18 192 262 358 279 573 K. Kannen v. M'Mullen 245 Keate v. Tample 194 Kennedy v. Nash 415 Kent v. Huskinson 9 1 Kenrig v. Eggleston 570 Kerr v. Osborne 272 Kilsby v. Williams 286 King v. Scrape 375 Kingston v. M'Intosh 424 Kirby v. Duke of Marlborough 211. 228 Knibbs v. Hall 345 Knowles v. Michell 418 Kymer v. Suwercropp 553 117 245 297 65 121 66 501 340 310 275 187 264 Lett v. Cowley Lickbarrow v. Mason Lightfoot v. Creed v. Tennant Lightly v. Clouston Lills v. Laing Lindon v. Hooper Little wood v. Williams Livesay v. Hood Lodge v. Dicas Longchamp v. Kenney Longdill v. Jones Lorymer v. Smith Love's case Lowe v. Peers v. Waller Lutterlow v. Halsey M. Page 158 161 391 65 259 391 348 380 130 509 276 353 110 221 30. 56. 455 61 566 Maberley v. Robins Macbeath v. Haldimand M' Arthur v. Lord Seaforth M'lver v. Richardson M'Neil v. Perchard Mackenzie v. Banks v. Scott Madden v. Kempster Maddock v. Rumball Mairv. Glennie Male v. Roberts Manby v. Scott Manton v. Moore Marriot v. Hampton Marryatts v. White Marsh and Rainsford's case Marshall v. Rutton Martin v. Hind ■ v. Morgan Martyn v. Blithman Mason v. Pritchard Matson v. Wharam Medina v. Stoughton Meggot v. Mill3 Mellish v. Motteux Melville v. Haydon Menvel v. Whiney Meredith v. Chute Merle v. Wells Mertens v. A.dcock Merryweather v. Nixon Mesnard v. Aldridge Meyer v. Everth Miller v. Shawe v. Aris 104. Mills v. Ball Mitchell v. Lapage 306 563 436 207 351 51 546 348 431 473 627 607 151 341 228 459 598 256 290 223 210 192 116 512 121 212 484 219 211 131 403 127 113 180 354 158 104 XIV TABLE OF THE CASES CITED. Mitchell v. Reynolds Montagu v. Tidcombe Moore v. Voughton v. Wilson Morgan v. Richards . v. Corder Morris v. Martin v. Cleasby v. Burdett, Bart. Morse v. Slue Morse v. Williams Moses v. Macferlan Mucklow v. Mangles Munn v. Baker Mussell v. Cooke Mussen v. Price Myrtle v. Beaver N. Nathan v. Giles Nerot v. Wallace Newby v. Wiltshire Newdigate v. Davy Newmarch v. Clay Newsome v. Thornton v. Coles Nicholson v. Willan Nickson v. Brohan v. Jepson Nightingale assignee v. Nisbit v. Smith Noble v. Adams Norman v. Cole Norris v. Napper Northay v. Field Norton v. Fazan Nurse v. Craig 0. Ogle v. Atkinson Ollivierson v. Coles Onslow v. Eames Orr v. Churchill Osborne v. Guy's Hospital Osey v. Gardner Owen v. Gooch Owenson v. Morse 142. Oxford, St. John's College v. Murcott Oxley v. Young Devisme Page 55. 438 227 425 583 187 556 613 551 260 579 290 342 152 579 84 179 566 165 22 531 347 514 159 505 574 527 182 275 224 172 262 277 159 614 611 152 431 126 36 264 165 555 181 352 227 P. Packhurst v. Smith Parker v. Brown v. Palmer Parkinson v. Lee Parnther v. Gaitskill Parsons v. Blandy v. Thompson Payne v. Whale v. Cave Peacock v. Harris Pearce v. Rogers Pearle v. Unger Peck v. Wood Peel v. Tatlock v. Baxter Penhorn v. Tuckington Pepper v. Burland Peter v. Compton Phillips v. Bateman Philips v. Astling Philpott v. Wallet Pickard v. Bankes v. Bonner Pickering v. Appleby v. Busk v. Barclay Pierson v. Hutchinson v. Dunlop Pike v. Ledwell Pitt v. Yalden Plymouth, Countess of, v. Throg morton Pordage v. Cole Porter v. Palsgrave Poulter v. Cornwall Powell v. Divett v. Millbank Page 25 452 111 113 298 359 448 321 132 419 524 18 409 226 167 424 236 232 209 229 456 275 364 84 543 587 184 287 431 254 Power v. Wells Precious v. Abel Price v. Lea v. Nixon v. Neale Prosser v. Hooper Prouting v. Hammond Q. Queensbury, Duke of, v. Cullen in error 530 41 424 270 104 378 320 522 91 182 293 123 275 R. Raba v. Ryland Rami v. Hughes Rapp v. Latham 484 8 503 TABLE OF THE CASES CITED. xv Rawlyns v. Vandyke Read v. Nash v. Hutchinson Redshaw v. Jackson Reed v. Mestaer Rex v. Dodd Ribbans v. Crickett Rice v. Shute v. Everitt Richards v. Borrett v. Barton Ridley v. Taylor Robinson v. Lewis v. Bland < v. Anderton v. Hendman Robison v. Gosnold Robson v. Godfrey v. Andrade ■ v. Eaton Rogers v. Kelly v. Reeves Rolfe v. Peterson Rondeau v. Wyatt Rothwell v. Humphreys Roy v. Duke of Beaufort Rucker v. Cammeyer Rugg v. Minett Rusby v. Scarlett Russell v. Palmer Rutter v. Hebden S. Salmon v. Watson Salomons v. Nissen Samuel v. Howarth Sanders v. Kentish Sandhill v. Jenny Sandilands v. Marsh Saunders v. Wakefield Saunderson v. Jackson Saville v. Robertson Scarmanv. Castell Schneider v. Heath Scott v. Pettit Scurneld v. Gowland Searle v. Keeves Selway v. Holloway Sharp v. Warren Sheppard v. Johnson Shepherd v Kain v. Beecher Shepley v. Davis ShirrefT v. Wilks Shove v. Webb Page 608 196 171 290 181 474 66 566 Ibid 331 311 496 413 62. 385 318. 327 530 604 237 272 348 289 223 29 82 500 29 99 146 524 253 453 418 160. 161 224 435 459 485 205 96 479 532 121 159 330 87 580 270 436 123 211 149 491 328 Sidenham and Worlington's case Simmons v. Keating Simon v. Motivos or Metivier Page 16 209 100 Simpson v. Ingham v. Bloss 228. 509 373 584 33 156. 160 67. 368 398 Skinner v. Upshaw Sloman v. Walter Slubey v. Hey ward Smith v. Bromley v. Nissen v. Dickinson 36 v. Jameson 602 v. Goss 158 v. Kelly 49 v. Mercer 296 v. Shepherd 586 v. Dennis 379 v. Home 57 9 v. Lascelles 558 Snaith assignee, &c. v. Gale 396 Snee v. Prescott 154 Snowden v. Davis 346. 354 Southall v. Leadbetter 407 South Sea Company v. Duncomb 383 Sparrow v. Carruthers Splidt v. Heath Spragg v. Hammond Stockpoll v. Earle Stadt v. Lill Stedman v. Gooch Steers v. Lashley Stephens v. Squire Stephenson v. Hardy Stevenson v. Mortimer Stewart v. Fry v. Smith St. John v. St. John Stokes v. Lewis v. Twitcher 324 Stone v. Carr Stoveld v. Hughes Strange v. Lee Stratton v. Rastall Stubbing v. Heintz Swaine v. Morland 351 Swan v. Steele Symonds v. Carr Symmons v. Want Tappenden v. Randall Tate v. Wellings Tatlock v. Harris Taylor v. Mills and Magnali 599 109 395 451 206 181 63 196 382 357 288 412 612 392 364 632 159 213 333 523 364 488 142 208 372 430 292 399 XVI TABLE OF THE OASES CITED. Taylor v. Hare v. Higgins DO v. Lendy Teed v. Elworthy Tempest v. Fitzgerald Temple v. Welds Tenant v. Mackintosh Thomas v. Whip — v. Day Thomason v. Frere Thompson v. Hervey Thornton v. Kempster Thrnpp v. Fielder Thurston v. Mills Todd v. Stokes Tomkins v. Bernet Tounsend v. Hunt Towers v. Sir John Osbourne v. Barrett Townson v. Wilson Trent Navigation Company v. Harley Tubb v. Harrison Tuck v. Ruggles Turner v. Phillips v. Davies v. Hoole Tuson v. Batting Tyly, Sir Joseph, v. Morrice Page 324 400 272 483 90 272 301 350 594 499 603 104 629 351 610 366 17 82 319 360 227 630 567 333 403 370 244 571 V. Vale v. Bayle Vere v. Lewis Virany v. Yarne U. Upsdell v. Stewart Usher v. Dauncey W. Waddington v. Bristow v. Oliver Wain v. Warlters Walford v. The Duchess of De Pienne Walker v. Chapman v. Perkins v. Dixon Wallace v. Breeds Wallay v. Montgomery Warcop v. Morse Ward v. Evans Waring v. Cox 160. Warwicke v. Noakes Waters v. Glossop 137 293 255 243 500 141 184 202 600 365 55 141 147 166 19 278 165 184 214 Waters v. Mansell Watkins v. Vince Watson v. Threlkeld Waugh v. Carver Wayland's, Sir Robert, Waymell v. Reed Webb's case Weddell v. Lynam Wells v. Masterman v. Ross Welsh v. Welsh Wennall v. Adney Weston v. Downes v. Barton Wettenhall v. Wood White v.Wilks Whitehouse v. Frost Whitfield v. Savage Whittingham v. Hill Whitwell v. Bennet Wightman v. Townroe Wilbean v. Ashton Wild v. Fort Wilder v. Griffin Wilkinson v. King v. Frasier Willett v. Chambers Williams v. Leper v. Harrison v. Everett v. Cranston v. Hedley v. Thomas v. Keats v. Millington Wiltshire v. Sims Wilson v. Milner v. Freeman v. Dickson Winkworth v. Mills Wish v. Small Withers v. Lys D arm ah Lawes Wrightson v. Pullan T. Yate v. Willan Yates v. Pirn -v.Bell Axtell Wright v Young v Z. Zagury v. Farnell Zwinger v. Samuda Page 333 202 615 466 case 522 64. 177 261 331 490 297 399 532 320 213 387 148 147 287 618 288 482 36 308 361 167 473 502 197. 222 619 284 5S0 362 49S 506 546 542 354. 416 57S 592 201 473 146 98 157 500 580 110 286 481 149 150. 160 THE LAW OF CONTRACTS AND PROMISES PART THE FIRST. CHAPTER I. OF THE GENERAL NATURE AND PARTS OF A CONTRACT AND PROMISE. A contract is an agreement or mutual bargain between two contracting par- ties ; and is entered into either verbally, that is, by word of mouth only, or in writing. When reduced into writing, it is either subscribed with the hands and seals of both the contracting parties, or merely with one or both of their signa- tures. Such contracts or agreements as are reduced into writing under hand and seal, are technically called deeds or specialties ; and those which are mere- ly verbal, or in writing not under seal, are denominated simple contracts, or con- tracts by parol : for it is said, («) that '■' by the law of England all contracts are distinguished into agreements by specialty and agreements by parol." A promise is in the nature of a verbal covenant, and is either express or implied. The present work will treat only of agreements not under seal ; for in trade and commerce, as well as in the ordinary transactions of business between individ- uals, contracts and agreements are most commonly entered into either by word of mouth, or in writing with their signatures merely. Contracts and agreements of this description, however, are oftentimes expressed in such vague and uncer- tain terms as to render it extremely difficult to determine the real meaning and intention of the parties ; and it not unfrequently happens that questions arise either upon the legality of the subject matter of the contract or promise ; the competency of the parties to contract ; or the extent of their respective liabili- ties. When these difficulties *occur, they too frequently give birth to disputes and differences between the parties, and commonly terminate in an action at law, which is technically called an action of assumpsit, and is prosecuted either for the recovery of a fixed and ascertained sum of money, or for uncertain and un- (o) Per Ld. Ch. B. Skynner, 7 Term Rep. 350. n. a. 1 *2 2 Of the Nature and Parts [Part 1 . liquidated damages for the non-performance of the contract or promise ; and these damages can only be reduced to a certainty by the verdict of a jury. The species of contract proposed for consideration is defined in our law books, to be a bargain or agreement voluntarily made, upon a good consideration, be- tween two or more persons capable of contracting, to do or forbear to do some lawful act ; as if a man sells or exchanges cattle or goods for money or any other commodity, or agrees, in consideration of a sum of money, to make a lease of lands, or forbear to prosecute a legal claim, &c. And these are valid contracts, because there is, what lawyers term quid pro quo, or one thing for another. But, if a man without any other consideration than mere good will, or natural affection, make a voluntary promise to give to another a sum of money, as for instance, 20/., and that he will be his debtor for that sum ; this is no contract, but a mere naked promise or nudum pactum: for, however a man may or may not be bound to perform such a promise in honour or conscience, which the municipal laws of this country do not take upon them to decide, certainly those municipal laws will not compel the execution of what he had no visible induce-' ment to engage for: and therefore our law has adopted the maxim of the civil law that, ex nudo pacto non oritur actio. But any degree of reciprocity will prevent the agreement or promise from being classed under this rule ; and there- fore, in the instance put, if any thing, however trifling, were done, or to be done or given for the 20/., it would be a valid contract, and binding upon the par- ties, (b) And it is observed, (c) that every contract and' agreement ought to * be so certain and complete that each party may have an action or other rem- edy upon it ; and for this purpose six things appear necessary to concur; 1. A person able to contract ; 2. A person capable to be contracted with ; 3. A thing / to be contracted for ; 4. A good and sufficient consideration or quid pro quo ; 5. Clear and explicit words to express the contract or agreement ; 6. The as- sent of both the contracting parties, (d) So, every contract should be obliga- tory on both the contracting parties, or both should be at liberty to recede there- from, (e) But to an agreement or contract there is no prescribed form of words, but any words which show the assent of the parties are sufficient, (f) A contract or agreement conveys an interest either in possession, or in *action; as if A. agrees to change horses with B., and they do it immediately ; or if goods are sold and delivered and paid for at one time ; here the possession and the right are transferred together ; and such contract or agreement being executed and complete, is commonly termed an executed contract. But where A. for a valuable consideration contracts with B. to pay him 100/. at a day to come ; in this case, though A. thereby transfers a property or interest in such sum to B., yet such property or interest is not in possession, but in action merely, (6) Termes de Ley, tit. Contract. PI. (d) Vide PI. Com. 164. Co. Lit. 35. (b) Com. 302. 2 Bl. Com. 415. (e) 3 Term. Rep. 653. (c) PI. Com. 5. (02 Bl. Com. 443. ►3 Chap. 1.] Of a Contract and Promise. 3 and recoverable by suit at law ; and the contract not being performed is there- fore usually denominated an executory contract, (g) 2. OF EXPRESS CONTRACTS AND PROMISES. Contracts and agreements without seal are either expressed or implied. Express contracts are where the terms of the bargain, agreement, or prom- ise, are openly uttered and expressed by the contracting parties themselves. The subject matter of this class of contracts relates either to the person or property of the contractors, and may be either to do or forbear to do a particular act ; as, to pay money on the sale or exchange of cattle or goods ; to pay rent for the use and occupation of lands or houses ; to pay money on particular mercantile securities or agreements ; to pay the debt of a third person ; to pay money won or lost at play ; to perform works ; to accept, deliver, or take back goods, &c. ; to accept, transfer, or replace stock; to let or take lands or houses ; to warrant the title to lands ; to warrant the soundness or quality of cattle or goods ; to indemnify ; to marry ; to forbear to sue ; not to trade within a particular distance, &c. And these contracts or promises ought to be certain and explicit ; but certainty to a common intent is sufficient: (h) as, if a man promises another, in consideration that he will assign to him a certain term, to pay him 10/., this is a good as- sumpsit, though the time of the assignment and the payment be not appointed ; for the 10/. shall be paid in a convenient or reasonable time after the assignment, which also must be made within a reasonable time after the agreement, (i) Or, if A. be indebted to B. for certain things to him sold, and C. comes to B. and, for a good consideration, promises him that if A. should not pay him the money he will pay it for him ; an action upon the case lies for B. against C. upon this promise if A. does not pay the money within a convenient or reason- able time ; for so shall the promise be taken, viz. that if A. does not pay it in a convenient time, that then C. will pay it for him. (k) *So, where A., in consideration that B. would marry his daughter, promised to give with her a child's part, and that at the time of his death he would give to her as much as to any of his children, except his eldest son; this washol- den to be a good promise ; for though a child's part is in itself altogether un- certain, yet, it being shown what the rest of the children had, except the eldest, it is then reduced to a sufficient ceitainty. (/) So, a promise to give a bond for 40/., without saying in what penalty, is good ; for it shall be intended double the sum. (m) But, where the plaintiff declared that, whereas there was a communication between him and the defendant concerning the bark of certain wood, and that thereupon it was agreed, that the defendant should give to the plaintiff two shil- lings per seam for all the bark of such wood as the plaintiff should cut ; and that (g) PL Com. 140. (k) 1 Rol. Abr. 15. 1. 5. (A) Com. Dig. tit. Action of Assumpsit, (I) Poph. 148. 2 Rol. Rep. 104. A. 3. 4. (»i) 1 Lev. 88. (i) 1 Rol. Abr. 14. 1. 50. 4 Of the Nature and Parts [Part 1. the defendant assumed and promised to have ready upon a certain day articles in writing purporting that agreement, and an obligation for performance thereof, &c, the declaration was holden not to be good, because it was not said in what sum the obligation was to be, and a certain sum could not be intended, because the number of seams were altogether uncertain, (n) No express contract or agree- ment can be raised from a mere casual speaking or declaration in discourse ; as, if there be a discourse between the father of A. and B. in relation to a mairiage between A. and the daughter of B. ; and B. in that discourse declares and pub- lishes to the father of A. that he would give to him v;ho should marry his daugh- ter with his consent 100/., and A. after this declaration marries the daughter of B. with his consent ; yet it was holden, that this declaration and publication of B. shall raise no promise upon which an action of assumpsit may be brought ; for these general words do not include any promise, and the agreement must be complete upon which an express assumpsit lies, (o) 3. OF IMPLIED CONTRACTS OR PROMISES. Implied contracts or promises are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform. As, if a person is employed by another to do any business for him, or perform any work, and nothing is agreed upon as to the price of his labour, the law implies that the employer undertook or contracted to pay the person so employed as much as he reasonably deserves for his labour. So, where a man orders goods of a tradesman without any agreement of price, the law concludes that the buyer contracted to pay to the seller their real value, (/>) And from hence it * may be collected that all implied contracts or promises are founded on some legal liability to pay a debt, or perform a duty. Therefore, besides the instan- ces just mentioned, when money is lent and advanced, paid, laid out, and ex- pended, or had and received ; and nothing is expressly stipulated by the parties as to the repayment thereof, the law raises an implied promise that it shall be repaid upon request. So, when money is due on an account stated, or for fines on admissions into copyhold premises ; for fines and duties payable to corpora- tions ; for fees payable to particular officers ; for petty customs and tolls ; for general average ; for the salvage of ship or goods ; for the carriage or wharfage of goods ; for money due on awards, or foreign judgments : So also, as between landlord and tenant, that the latter shall use his farm, &c. in a husband-like and proper manner : in these instances also, and various others which might be mentioned, though no express agreement be made, a legal liability arises, and the law presumes that the party promised to pay the debt, or perform the duty. The last class of contracts implied by reason and construction of law, arises upon this supposition, that every one who undertakes any office, employment, trust, or duty, contracts with those who employ or entrust him, to perform it (n) 1 Sid. 270. Action of Assumpsit. F. 2. (o) 1 Rol. Abr. 6. 1. 40. Com. Dig. tit. (p) 2 Bl. Coin. 413. # o Chap. I.] Of a Contract and Promise. 5 with integrity, diligence, and skill ; and if, by his want of either of those quali- ties, any injury accrues to individuals, they have therefore their remedy in damages by action. A few instances will fully illustrate this matter ; as, if a surgeon, attorney, or any other professional person is guilty of neglect of duty, or a palpable breach of it, he is liable to an action on an implied assumpsit or promise for a reparation in damages for the injury sustained in consequence of such neglect. There is also in law always an implied contract with a com- mon innkeeper, common carrier, wharfinger, warehousekeeper, or other bailee lo be answerable for the goods entrusted to their care ; with a common farrier that he shoes a horse well without laming it ; with builders and other workmen that they perform their business in a workman-like manner ; in which if they fail, an action on the case, either in tort or assumpsit, lies to recover damages for the breach of their general undertaking. But if a person is employed to transact any of these concerns, whose common profession and business it is not, the law implies no such general undertaking ; but in order to charge such person with damages an express agreement is required, (q) It is difficult to state with certainty what contracts and promises are exclusive- ly implied ; though, as a general rule, it may be observed, that promises in law only exist where there is no express stipulation between the parties ; for expressum facit cessare taciturn, (r) *4. OF THE PARTIES TO A CONTRACT. The parties to a contract are two or more, namely, the person or persons who contract the obligation to do or forbear to do a particular act, and the per- son or persons in whose favour it is contracted. And, generally speaking, all persons, except infants and married women, having capacity and understanding, may, by mutual assent, become parties to a contract and bind themselves and their personal representatives to a performance thereof, (s) In some cases in- deed, as will be shown in a subsequent part of this work, infants and married women may legally enter into a contract. The contracts of idiots, lunatics, or other persons labouring under a defect in the understanding, of such a nature as to render them incapable of comprehending the engagements they enter into, may be avoided, (t) It has also been determined, that a contract entered into by a man so drunk as to be wholly unable to understand what he was doing, is void at common law. («)(1) And though this decision may at first view appear to intrench upon the old common law maxim, viz. that a man shall (q) 3 BI. Com. 165. (t) Yates v. Boen, Stra. 1]04. (r) Per Buller, Just. 2 Term Rep. 105. (u) Bui. Ni. Pri. 172. and Pitt v. Smith, 3 (s) 1 Bac. Abr. tit. Agreements. A. Camp. Rep. 33. (1) See Reynolds v. Waller, 1 "Wash. 164. A contract may be avoided by the lecal rep- resentatives of a party thereto, on the ground of his having been drunk, although such drunkenness was not occasioned by the procurement of the other party. Wigrtesworth v. Steers, 1 Hen. & Munf. 70. If a person, for any considerable part of the time, be so intoxi- cated as to deprive him of his ordinary reasoning powers, it is prima facie evidence that he is incapable of managing his aiiaira. Per Wahvorth, Chancellor, 1 Pai^c, 580. »6 6 Of the Nature and Parts [Part 1. not be permitted to stultify himself ; (t>) yet upon reflection it will be found to be rather an exception to the general rule than an infringement upon it. So, a contract or promise made by a person under duress or unlawful impris- onment, or under any other violent menace or constraint, which has the effect of preventing him from exercising the free use of his understanding and judg- ment, may be avoided, (w) So, no contract can legally be entered into between a British subject and an alien enemy. (a;) It may also be observed, that persons under judgment of outlawry, attainder of treason or felony, are incapacitated from making a contract for their own benefit ; for, being considered in law as civilly dead, they cannot sue in any court of law ; indeed their property, as well as all rights of action in respect thereof, are vested in the crown, (y) (2) Contracts and agreements are entered into by individuals either for them- selves or third persons ; and the liability of the parties thereto must wholly depend upon the general nature and terms of the contract. Thus, where A. B. and C. on behalf of themselves and other members of a club, entered into articles of agreement with D. to provide necessaries for the use and accommo- dation of the club ; it was holden that the three were personally bound by such articles, and that D. was not *obliged to resort to any of the other mem- bers for satisfaction of his demands (2) (3). 5. OF THE CONSIDERATION TO SUPPORT A CONTRACT OR PROMISE. It is essential to every contract or promise, that it be founded upon a good consideration. The civilians hold, that in all contracts, either express or impli- ed, there must be something given in exchange, something that is mutual or reciprocal. This thing, which is the price or motive of the contract, we call the consideration ; and it must be a thing lawful in itself, or else the contract is void. A contract for any valuable consideration, as for marriage, for money, for work done, or for other reciprocal contracts, can never be impeached at law ; and, if it be of sufficient adequate value, is never set aside in equity ; for the person contracted with has then given an equivalent in recompence, and is therefore as much an owner, or a creditor, as any other person, (a) These considerations are divided by the civilians into four species 1. Do, tit des ; as, when I give money or goods on a contract, that I shall be repaid (r) See Co. Lit. 247. 2 Bl. Com. 291, 2. 2 Barn. & Aid. 263. where the authorities on (to) 2 Inst. 482. 1 Bl. Com. 136. Bui. this subject are cited. IS T i. Pri. 172. (;) Duke of Queensbitry and others v. (x) Brandon v. Nisbet, 6 Term Rep. 23. Cullen, 1 Bro. Pari. Cas. 396. Svo. edit. Hors- Bristoic v. Towers, ib. 35. ley v. Bell, 1 Bro. Ch. Cas. 101. innotis. (ij) See the recent case of Bullock v. Dodd, (a) 2 Bl. Cora. 444. (2) The process of outlawry is unknown in this country, except in a very few of the States ; and wherever the English practice has been introduced, it is believed, that, in per- sonal actions especially, the forfeitures and disabilities do not follow, upon judgment of out- lawry, as in England. In the state of New- York, it is provided by statute, " that no out- lawry in any personal action, shall work any disability or forfeiture whatsoever in favor of any other person than the plaintiff at whose suit it shall be had." 1 N. E. L. 165. (3) See M' Williams v. Willis, 1 Wash. 199. Chap. 1.] Of a Contract and Promise. 7 money or goods for them again. Of this kind are all loans of money upon bond, or promise of repayment, and all sales of goods, in which there is either an express contract to pay so much for them, or else the law implies a contract to pay so much as they are worth. 2. The second species is facio, ut facias : as, when I agree with a man to do his work for him, if he will do mine for m e ; or'if two persons agree to marry together ; or to do any other positive acts on both sides : or, it may be to forbear on one side in consideration of some thing done on the other ; as, that in consideration A., the tenant, will re- pair his house, B., the landlord, will not sue him for waste : or, it may be for mutual forbearance on both sides ; as, that in consideration that A. will not trade to Lisbon, B. will not trade to Marseilles, so as to avoid interfering with each other. 3. The third species of consideration is facio, ut dcs : when a man agrees to perform any thing for a price, either specifically mentioned, or left to the determination of the law to set a value on it. And when a servant hires himself to his master for certain wages, or an agreed sum of money ; here the servant contracts to do his master's service, in order to earn that spe- cific sum : otherwise, if he be hired generally ; for then he is under an implied contract to perform this service for what it shall be reasonably worth. 4. The fourth species is do, ut facias : which is the direct counterpart of the preceding. As when I agree with a servant, to give him such wages upon his *performing such work, which, we see is nothing else but the last species inverted : for servusfacit, ut herus det, and, herus dat, ut servus faciat. (b) A consideration of some sort or other is so absolutely necessary to the forming of a contract, that a nudum pactum, or agreement to do or pay any thing on one side, without any compensation on the other, is totally void in law ; and a man cannot be compel- led to perform it. (c) But it is observed, (d) as this rule was principally estab- lished, to avoid the inconvenience that would arise from setting up mere verbal promises, for which no good reason could be assigned, it therefore does not hold in some cases were such a promise is authentically proved by written documents. For if a man enters into a voluntary bond, or gives a promissory note, he shall not be allowed to aver the want of a consideration in order to evade the payment ; for every bond from the solemnity of the instrument, and every note from the subscription of the drawer, carries with it an internal evi- dence of a good consideration. Courts of justice will therefore support them both as against the contractor himself; but not to the prejudice of creditors or strangers to the contract. This observation, as far as it respects promissory notes, and other written contracts not under seal, is certainly supported by the opinion of Mr. Justice Wilmot, in the case of Pillans v. Van Mierop, (e) who said, " I cannot find that a nudum pactum evidenced by writing has ever been holdenbad; and I should think it good, though where it is merely verbal, it is bad. Yet I give no opinion upon its being good always when in writing." The law, however, on this point is now settled ; and the rule is, that a verbal (6) 2 Bl. Com. 445. (c) Ibid. (rf) Ibid. (<•) 3 Burr. 1671. 8 Of the Nature and Parts [Part 1 . agreement, or promise, though reduced into writing, is not valid, without a good consideration. (4) Thus, in the case of Rann and another, executors of Mary Hughes x. Isabella Hughes, administratrix of J. Hughes [/), the declaration stated, that on the 11th June 1764, divers disputes had arisen between the plaintiff's testator and the defendant's intestate, which they referred to arbitra- tion ; that the arbitrator awarded that the defendant's intestate should pay to the plaintiff's testator 983/. That the defendant's intestate afterwards died possessed of effects sufficient to pay that sum; that administration was granted to the defendant ; that Mary Hughes died, having appointed the plaintiffs her executors ; that at the time of her death the said sum of 983/. was unpaid, " by reason of which premises the defendant as administratrix became liable to pay to the plaintiffs as executors the said sum, and being so liable she, in consideration thereof, undertook and promised to pay, &c." Upon a writ of error in the House of Lords, after argument, the following question was pro- posed to the Judges by the Lord Chancellor, " Whether sufficient matter *appeared upon the declaration to warrant after verdict the judgment against the defendant in error in her personal capacity ?" Upon Avhich the Lord Chief Bar- on Sky nner delivered the opinion of the Judges to this effect : — " It is undoubt- edly true, that every man is by the law of nature bound to fulfil his engagements. It is equzlly true, that the law of this country supplies no means, nor affords any remedy to compel the performance of an agreement made without sufficient consideration ; such agreement is nudum pactum ex quo non oritur actio ; and whatsoever may be the sense of this maxim in the civil law, it is in the last mentioned sense only that it is to be understood in our law. The declaration states that the defendant being indebted as administratrix, promised to pay when requested, and the judgment is against the defendant generally. The being in- debted is of itself a sufficient consideration to ground a promise, but the promise must be co-extensive with the consideration, unless some particular consideration of fact can be found here to warrant the extension of it against the defendant in her own capacity. If a person indebted in one right, in consideration of forbear- ance for a particular time promise to pay in another right, this convenience will be a sufficient consideration to warrant an action against him or her in the latter right : but here no sufficient consideration occurs to support this demand against her in her personal capacity ; for she derives no advantage or conveni- ence from the promise here made. For if I promise generally to pay upon request, what I was liable to pay upon request in another right, I derive no (/) 7 Term Rep. 350. n. a. 7 Bro. Pari. Cas. 551. S.C. (4) The principle laid down in the text, has been repeatedly recognized in the United States. Burnet v. Bisco, 4 J. R. 235. Pearson v. Pearson, 7 I. R. 26. Sears v. Brink, 3 J. R. 214. The People v. Howell, 4 J. R. 296. Union Turnpike Co. v. Jenksins, 1 Caines, 387. Per Lewis, Ch. J. Beverleys v. Holmes, 4 Munf. 95. Parker v. Carter, 4 Munf. 273. Moseley v. Jones, 5 Munf. 23. See also Slade v. Hoisted,! Cowen, 322. 1 Bac. Abr. (Wilson's edit.) 112. Harts' Exrs.x. Coram, 3 Bibb, 26. Prior v. Lindsey, 3 Bibb, 76. Cook v. Bradley, 7 Conn. Rep. 57. W inthrop <$- al. v. Lane Sf al. 3Des. 310, 341. Hosmer v. Hollenbeck, 2 Dnv, 22. Chandler's Ex. v. Hill, 2 Hen. & Munf. 124, 130. *9 Chap. 1.] Of a Contract end Promise advantage or convenience from this promise, and therefore there is not sufficient consideration for it. But it is said, that if this promise is in writing, that takes away the necessity of a consideration, and obviates the objection of nudum pactum, for that cannot be where the promise is put in writing ; and that after verdict, if it were necessary to support the promise that it should be in writing, it will, after verdict, be presumed that it was in writing ; and this last is cer- tainly true: but that there cannot be nudum pactum in writing, whatever may be the rule of the civil law, there is certainly none such in the law of England. All contracts are by the laws of England distinguished into agreements by specialty, and agreements by parol ; nor is there any such third class, as some of the counsel have endeavoured to maintain, as contracts in writing. If they be merely written and not specialties, they are parol, and a consideration must be proved. His Lordship also observed upon the case of Pillans v. Van Mireop (t), and the case of Losh v. Williamson, Mich. 16 G. 3. in B. R. and so far as these cases went on the doctrine of nudum pactum, he seemed to in- timate that they were erroneous. And he concluded by saying, that all his ♦Brothers concurred with him, that in this case there was not a sufficient con- sideration to support this demand, as a personal demand against the defendant, and that its being now supposed to have been in writing makes no difference. The consequence of which is, that the question put to us must be answered in the negative." (5) The same rule also applies to promissory notes and bills of exchange, as well as to all other contracts in writing without seal. This rule, however, ex- tends only to the immediate parties to a bill or note, and does not affect third persons, who happen to be strangers to the want of consideration as between those parties. For instance, if an action be brought upon a note or bill, at the suit of the payee against the drawer, or, by the indorsee against the indorser, for which no consideration was given, the plaintiff, in either case, cannot re- cover. (6) But the want of consideration, as between the maker and payee of a note or bill, cannot be set up in an aclion against either of them at the suit of an indorsee, unless it be proved that he was acquainted with this cir- cumstance at the time of taking the note or bill, (g) And the reason why third persons ought not to be affected by this rule is, that bills and notes being ne- gotiable instruments, by mere indorsement and delivery, it would be enabling the original parties to assist in a fraud, if they were to be allowed to set up the want of consideration, as between themselves, in bar to an action against either of them, at the suit of an indorsee for a valuable consideration. And Lord Mansfield is reported to have said, that " in commercial cases amongst (t) 3 Burr. 1663. (V) Vide Bayley on Bills, 121. 2d edit. Chitty on Bills, 12.88. 5th edit. (5) See Tctlliaferro v. Robb, 2 Call, 258. Schoonmakerv. Roosa, 17 J. R. 301. Ten Erjckv. Vanderpool, 8 J. R. 93. 2d edit. (6) See The People v. Howell, 4 J. R. 286. Pierson v. Pierson, 7 J. R. 26. Schoonmaker v. Roosa, ubi supra. 2 no 10 Of the Nature and Parts [Part 1 . merchants, the want of consideration is not an objection." (h) But this ob- servation, it is apprehended, must be understood to apply only to cases of bills and notes when in the hands of an indorsee ; for in all other contracts and agreements, not under seal, whether mercantile or otherwise, a consideration is absolutely necessary. Indeed, a bargain without a consideration is said to be a contradiction in terms, and cannot exist, (i) I now proceed to show what consideration will support a contract or promise. It is a settled rule of law, that to make a contract or agreement obligatory, the consideration must be either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made ; (7) otherwise the contract or agreement is considered as nudum pactum, and cannot be enforced, (k) Thus, a. promise in consideration of the forbearance of a suit for a certain time, is good; for that is for the benefit of the defendant, though the action is not discharg- ed. (/) (8) But, a promise in consideration of forbearance is not valid where there was originally *no cause of action ; as, in consideration of forbearance of a suit upon a contract made by a married woman, (m) (9) A promise in consideration of surceasing of a suit is good ; for that is a benefit to the de- fendant, and a prejudice to the plaintiff, though the action is not discharged. (n) So, in consideration of the discharge of a debt, or the delivery of a bond, or other security, (o) Or, in consideration of the proof of a debt, for it is a charge to the plaintiff; as, if an executor promise, in consideration of the proof of the delivery of goods to his'testator, to pay for them, (p) So if the par- ties agree to a particular manner of trial of the validity of a debt, it shall be determined in such manner, (q) So, in consideration of any particular service or labour by the party to whom the promise is made ; as, to procure the enjoyment of a house (r) ; or to pro- cure a note, &c. from the debtor of the party promising, (s) Or, in consider- (h) 3 Burr. 1669. (n) Hob. 216. 2 Bulst. 41. (i) Per Lord Loughborough, 2 Ves. iun. (o) Com. Dig. tit. Action upon Assump- 408. sit, B. 3. (ft) Com. Dig. tit. Action "on the Case up- (p) 1 Leon. 93. 1 Sid. 57. 369. on Assumpsit, B. 1. (•) Cowp. 290. cases, arises on the question as to the sufficiency or insufficiency of the evidence ; or in other words, what acts or declarations of the party are sufficient to revive the original cause of action. Under this head, a reference to some of the principal cases, will be suffi- cient for all practical purposes. Danforth v. Culver, 11 J. R. 146. Sluby v. Champlin, A J. R. 460. and note (b) 469. Dean v. Pitts, 10 J. R. 35. Furgerson v. Taylor, 1 Hayw. 20. Fergusons. Fitt,\A. 239. Sands v. Gelston, 15 J. R. 511. Mosher v. Hubbard, 13 J. R. 510? Baxter v. Penniman, 8 Mass. Rep. 133. Fiske v. Needham, 11 Mass. Rep. 452. Guier v. Pcarce, 2 Browne, 35. MUes v. Moudie, 3 Serg. Sc R. 211. Smith v. Freel, Addis. 291. Brown v. Campbell, 1 Serg. & R. 176. Jones v. Moore, 5 Binn. 573. Beall v. Ed- mondson, 3 Call, 41G. Marshall v. Dalliber, 5 Conn. Rep. 480. Beitz v. Fuller, 1 M'Cord, 541. Lee\. Perry, 3 M'Cord, 552. King v. Riddle, 7 Cranch, 168. Clementscn v. Wil- liams, 8 Cranch, 72. Kane v. Bloodgood, 7 Johns. Ch. Rep. 90. Robins v. Otis, 1 Pick. 368. Wetzellv. Bussard, 11 Wheat. 309. Thompson v. Peter, 12 Wheat. 56a. Bell v. Morrison, I Peters, 351, 362. Bell v. Rowland, Hardin, 301. But if the promise to pay a debt barred by the statute, be conditional, the remedy will not be revived, unless the condition be performed, or a readiness to perform it, be shown. Read v. Wilkinson, M. S. Rep. C. C. April 1811. Whart. Dig. 425. S. C. 2. Browne, Appx. 16. Bell v. Morrison ; Wetzellv. Bussard; and Robbins v. Otis, ut supra. See Scouton v. Eislord, 7 J. R. 3G. Kingston v. Wharton, 2 Serg. & R. 208. Bush v. Barnard, S J. R. 318. 2d edit. An acknowledgment, by one partner, after a dissolution of the partnership, of a company debt barred by "the statute, will revive it against all the partners. Smith v. Ludlow, 6 J. R. 267. But see contra, Bell v. Morrison, 1 Peters, 351, 370, 373. So, a pro- mise by one joint debtor, to pay a debt barred by the statute of limitations, will take the case out of the statute. Johnson v. Beardslee, 15 J . R. 3. Beitz v. Fuller, 1 M'Cord, 541. (22) See ford v. Phillips, ] Pick. 202. Barnabyx. Barnaby, 1 Pick. 221. (23) See Scouton v. Eislord, 7 J. R. 36. Shippey v. Henderson, 14 J. It. 178. Maxim v. Morse, 8 Mass. Rep. 127. Erwin v. Saunders, 1 Cowen, 249. Kingston v. Wharton, 2 Serg. & R. 208. (24) In conformity to this principle, it has frequently been decided, that an equitable or moral obligation is a sufficient consideration to support an express promise : Thus, an ex- ecutor, having assets in his hands, may be charged de bonis propriis, on a promise to pay a leszacv giveD by the will of the testator. Clark v. Herring, 5 Binn. 33. So, where a deputy sheriff, voluntarily, suffered a prisoner in custody on a ca. sa., to escape, and the sheriff having been compelled, by legal process, to pay the amount of the debt to the execution creditor, promised the sheriff to pay the same to him ; it was held, that such promise would support assumpsit for the money so paid ; there being a moral obligation irsting on the defendant, accompanied by an express assumption. Doty v. Wilson, 14 J. R. 378. So, if a person, for whose benefit a note has been made, but who is not a party to it, promise to pay the amount to the holder, the prior equitable obligation is a good consideration to support the assumption. Stewart v. Eden, 2Caines, 150. And so, where money has been paid, and a receipt taken, and afterwards the creditor brought an action for the same mo- ney, and recovered, by reason of the omission of the defendant to produce the receipt in his defence : a subsequent promise to refund the money, was held to be valid ; the moral ob- ligation to repay, being a sufficient consideration. Bint ley v. Morse, 14 J. R. 468. An assign- ment of a chose in action, with notice to the debtor, imposes' on him an equitable and moral obligation to pay the money to the assignee and although such obligation may not he suffi- cient to support an implied assumpsit, so as to enable the assignee to sue in his own name ; yet it is a good consideration for an express promise, upon which, an action in his own name may be maintained. Crocker v. Whitney, 10 Mass. Rep. 316. Mowry v. Todd, 12 *20 Chap. 1.] Of a Contract and Promise. 20 A subsequent promise, however, will revive that which is voidable only ; there- fore where the consideration is void in its creation, no promise can set it up again : As, if all the creditors of an insolvent consent to accept a composition for their demands, on an assignment of his effects by a deed of trust, to which they are all parties, and one of them, before he executes, obtain from the in- solvent a promissory note for the residue of his demand, as the condition of his executing the deed, the note is void in law, as a fraud on the rest of the creditors ; and a subsequent promise to pay it is a promise without considera- tion, and will not maintain an action.(0 9. OF A CONSIDERATION VOID IN PART. If a contract or agreement be made upon two considerations, and one of them cannot be performed, this will not avoid the contract ; and in an action thereon, the damages shall be intended to be wholly given for the good consideration, (u) As, in consideration of the assignment of a title to dower, and the not suing an attachment out of chancery upon a decree ; though a title to dower can- not be assigned, but released to the terre-tenant, (v) So, in consideration of a permission to remove goods, and relinquish a foreign attachment, though it cannot be relinquished, (w) Or, in consideration of two things ; and one (0 Cockshott v. Bennett, 2 Term Rep. Leon. 3. 763. (»)Cro. El. 847. (u) Cro. El. 149. 1 Sid. 33. contra. 4 (u<) Yelv. 56. Mass. Rep. 281. As to the sufficiency of a moral obligation, accompanied by a subsequent 1 Swift's Dig. 204, 205. Comstock v. Smith, 7 J. R. 89. note (c). The broad foundation upon which these authorities rest, has, by some recent decisions, been very much narrowed. In Mills v. Wyman, 3 Pick. 207 ; where a son, who was of full age, and had ceased to be a member of his father's family, was suddenly taken sick, among strangers, and being poor and in distress, was relieved by the plaintiff; and afterwards, the father wrote to the plain- tiff, promising to pay him the expences incurred ; it was held, that such promise would not sustain an action. And in a similar, and still later case, the same principle is fully recog- nized : A. had furnished necessaries to B., who was indigent, and needed relief; and C. his son, who was of sufficient ability, signed and delivered to A., a writing in these words ; " This may certify, that the debt now due from my father B. to A., I acknowledge to be for necessaries of life, and of such a nature, that I consider myself hereby obliged to pay A. 60 dollars towards said debt now due ; provided my father does not settle with A. in his life time ;" — This contract was held to be void for want of consideration. Cook v. Bradley, 7 Conn. Rep. 57. From a view of these cases, it seems, that a distinction is made be- tween that kind of moral obligation which arises from affinity by blood, and all the other social and relative duties, which must be referred, exclusively, to the forum of conscience ; and those rights which may be enforced at law, were it not for some positive rule, which, with a view to the public good, exempts the party, in a particular instance, from lejral liabili- ty : This distinction is maintained in a note in Wennall v. Adleij, 3 Bos. & Pul. 219., where all the cases on this subject are reviewed. The result of the investigation is thus expressed. " An express promise, therefore as it should seem, can only revive a precedent cood consid- eration, which might have been . enforced at law, through the medium of an implied promise, had it not been suspended by some positive rule of law ; but can give no original right of action, if the obligation on Which it is founded, never could have been enforced at law, though not barred by any legal maxim or statute provision." This language is adopted in the opinion of Spencer, J. in Smith v. Ware, 13 I. R. 257. See further, in Edwards v. D«- vis, 16 J. R. 281, 283. note («). 20 Of the Nature and Parts [Part 1. of them is insufficient ; as, in consideration of forbearance of a debt due from the defendant and his son ; though, as to the debt of the son, it is of no value, (x) And the void consideration need not be proved. (y) But if one of the considerations is found false by the jury, the action fails. (z) Or, if one of the considerations is unlawful, that vitiates the whole, and the plaintiff shall recover for nothing ; as, in consideration of 2s., and the escape of R. ; for the permitting the escape is unlawful, (a) (25) 10. OF A CONSIDERATION FROM A THIRD PERSON. A promise in some cases is valid though the consideration on which it is made proceed in part from another ; as, if a man promise a pig of lead to A., and his executor give lead for that purpose to B. who undertakes to deliver it to A. ; an action lies by A. against B. upon his undertaking, (b) *So, in the case of Dutton and wife v. Pool,(c) the plaintiff declared, that his wife's fa- ther being seised of certain lands now descended to the defendant, and being about to cut down 1000/. worth of timber off from the said lands to raise a portion for his daughter, the defendant, being his heir, promised the father, in consideration that he would forbear to fell the timber, that he would pay the daughter a 000/. After verdict for the plaintiff, upon non assumpsit, it was moved in arrest of judgment, that the action ought not to have been brought by the daughter, but by the father ; or if the father were dead, by his execu- tors, for the promise was made to the father, and the daughter was neither pri- vy nor interested in the consideration, nothing being due to her : but Scroggs, Ch. J. said, that there was such apparent consideration of affection from the father to his children, for whom nature obliged him to provide, that the consid- eration and promise to the father might well extend to the children. Judg- ment for the plaintiff ; for the son had the benefit by having the wood, and the daughter had lost her portion by these means. But, in general, it is necessary that the consideration on which the promise is founded should move from the party in whose favour the promise is made. Thus, in the case of Bourne v. Mason, (d) where the plaintiff declared, that A. being indebted to the plaintiff and defendant in two several sums of money, and B. being indebted to A. in another sum, and there being a communication between the parties, the defend- ant in consideration that A. would permit the defendant to sue B. in A.'s name for the recovery of the sum due from B. to A. promised that he, the defendant, would pay A.'s debt to the plaintiff, and alleged that A. permitted the defend- ant to sue accordingly, and that he recovered. After verdict for the plaintiff, (x) 1 Sid. 38. («) Cro. El. 199. See also 1 Sid. 38. (y) Com. Dig. Action upon Assumpsit, B. (6) 1 Rol. Abr. 27. 1. 40. 31. 1. 5. 13. ■ (c) 2 Lev. 210. (z) Cro. El. 848. (rf) 1 Vent. 6. (25) In Crawford v. Morrell, 8 J. R. 195. 2d edit, it was held, that a parol contract to pay the plaintiff for permitting certain land to remain open as a public road, and also to pay him for certain other lands in the possession of the defendant, and ■which the plaintiff claimed, is void ; the whole being one entire contract, and the latter clause being within the statute of frauds. *21 * Chap. 1.] Of a Contract and Promise. 21 upon non assumpsit, it was moved in arrest of judgment, that the plaintiff could not maintain this action : and of this opinion were the court, observing, that the plaintiff was a mere stranger to the consideration, having done nothing of trouble to himself, or of benefit to the defendant. And in the case of Crow v. Rogers, (e) where the plaintiff declared, that J. S. was indebted to the plaintiff, and it was agreed between J. S. and the defendant, that the defendant should pay to the plaintiff the debt due to him from J. S., and that J. S. should make the defendant a title to a house, in consideration whereof the defendant promised to pay to the plaintiff the debt due to him from J. S., and then aver- red that J. S. was always ready to perform his part of the agreement : on de- murrer, judgment was given for the defendant, because the plaintiff was a stranger to the consideration. *11. OF A CONSIDERATION WHICH THE PARTY HAS NOT THE POWER TO GRANT. The consideration must be such as the party, to whom a promise is made, has a power by law to perform, or cause to be performed, otherwise the pro- mise cannot be enforced. Thus, in the case of Harvey v. Gibbons(f) the plaintiff declared, that he being bailiff to J. S., the defendant in consideration that the plaintiff would discharge defendant of a debt due to J. S., promised, &c. After verdict and judgment for the plaintiff in the court below, it was reversed in B. R., because the plaintiff could not discharge a debt due to his master. And the principle established by this case was recognized by Lord Kenyon, Ch. J. in the case of Nerot v. Wallace, (g) where the consideration was, that the plaintiffs, who were assignees under a commission of bankrupt against J. S. would forbear to proceed to have the examination of J. S. taken before the commissioners concerning certain sums, with which J. S. was charg- ed, and that the commissioners would forbear and desist accordingly. Lord Kenyon said, " The ground on which I found my judgment is this ; that every person who, in consideration of some advantage either to himself or another, promises a benefit, must have the power of conferring it up to the extent to which the benefit professes to go ; and that not only in fact, but law." Now the promise made by the assignees in this case, which was the consideration of the defendant's promise, was not in their power to perform ; because the com- missioners had nevertheless a right to examine the bankrupt. And no collu- sion of the assignees could deprive the creditors of the right of examination which the commissioners would procure them. The assignees stipulated not only for their own acts, but also that the commissioners should forbear to ex- amine the bankrupt ; but clearly they had no right to tie up the hands of the commissioners by any such agreement. And if any proposal of that sort had been made to the commissioners, they, as acting in a public duty, would have been guilty of a breach of that duty in acceding to it. (e) Stra. 592. See also 1 Bos. & Pul. (/) 2 Lev. 161. 101. n. c. 3 Bos. & Pul. 149. n. a. (g) 3 Term Rep. 22. *22 23 Of the Construction of Contracts, 8>c. [Part 1. * CHAPTER II. 1. OF THE CONSTRUCTION OF CONTRACTS AND AGREEMENTS. Having in the former Chapter treated of the general nature and parts of a con- tract and promise, I propose in the present Chapter to show, first, the general rule adopted in the construction of contracts and agreements ; secondly, what shall be deemed a penalty or stipulated damages for securing the performance of a contract ; thirdly, the power of the parties to cancel or rescind a contract or agreement ; and, lastly, the general rules to be observed with regard to the performance of a contract. The general rule adopted in our courts of law and equity, in the construction of a contract or agreement is, that it shall be construed according to its sense and meaning, as collected, in the first place, from the terms used in it, which terms are themselves to be understood in their plain, ordinary, and popular sense, unless they have generally, in respect to the subject matter, as by the known usage of trade, or the like, acquired a peculiar sense, distinct from the popular sense of the same words ; or unless the context evidently points out that they must, in the particular instance, and in order to effectuate the immediate inten- tion of the parties to that contract, be understood in some other special and pecu- liar sense, (a) (26) So, with regard to mercantile instruments, the rule is, that the («) Per Lord Ellenborough, 4 East Rep. 135. (26) See Sumner v. Williams, 8 Mass. Rep. 162,214. Fowle v. Bigelow, 10 Mass. Rep. 379. Hopkins v. Young, 11 Mass. Rep. 302. When different instruments are executed at the same time, by the same parties, but are all parts of the same transaction, the court will suppose such priority in the execution of them, as will affect the intention of the parties. Newell v. Wright, 3 Mass. Rep. 138. When descriptive words include an immaterial cir- cumstance, this is not to be construed as a stipulation, warranty or condition, rendering the whole contract dependent on that circumstance ; but where such stipulation is clearly expressed, it must have its effect. Manly v. The United M. & F. Ins. Co., 9 Mass. Rep. 85, 90. Asa general rule, words of a general import are restrained by particular expressions in the same instrument. Lyman v. Clark, Id. 235. If a creditor covenant with his debtor, that he will not sue him within a limited time, such covenant will not apply to any new right of action which the creditor may have against the debtor. Brighamv. Eveleth, Id. 538. See further, Hawkins v. Berkley, 1 Wash. 204, 206. Tabb v. Archer, 3 Hen. & Munf. 399. Harris v. Nicholas, 5 Munf. 483. Ludlow v. M'Crea, 1 Wend. 228. Jackson v. Delacroix, 2 Wend. 433. *23 Chap. 2.] Of the Construction of Contracts. 23 construction should be liberal, agreeable to the real intention of the parties, and conformable to the usage of trade ia general, and of the particular trade to which the contract relates, (b) Pothier, in his very learned treatise on obligations,(c) lays down the following (amongst other) rules for the interpretation of agreements; 1. We ought to ex- amine what was the common intention of the contracting parties, rather than the grammatical sense of the terms, (d) 2. When a clause is capable of two sig- nifications, it should be understood in that which will have some operation, rath- er than that in which it will have none, (e) 3. Where the terms of a contract are capable of two significations, we ought to understand them in the sense which is most agreeable to the nature of the contract. (/) 4. Any thing which may appear ambiguous in the terms of a contract, may be explained by the *CDmmon use of those terms in the country where it is made, (g) 5. Usage is of so much authority in the interpretation of agreements, that a contract is understood to contain the customary clauses, although they are not expressed. (h) 6. We ought to interpret one clause by the others contained in the same act, whether they precede or follow it. 8. However general the terms may be in which an agreement is conceived, it only comprises those things respecting which it appears that the contracting parties proposed to contract, and not oth- ers which they never thought of. 10. When a case is expressed in a contract, on account of any doubt which there may be whether the engagement result- ing from the contract would extend to such case, the parties are not thereby understood to restrain the extent which the engagement has of right, in res- pect to all cases not expressed. 11. In contracts, as well as in testaments, a clause conceived in the plural may be frequently distributed into several partic- ular clauses. 12. What is at the end of a phrase, commonly refers to the whole phrase, and not only to what immediately precedes it, provided it agrees in gen- der and number with the whole phrase. Now these rules claim our particular attention, not only on account of the high estimation in which the opinions of Pothier are always received,(*) but because these rules will be found to be quite consonant to the principles of the English law, and to the practice of our courts, in the construction of contracts and agreements, upon examining the authorities which I have already cited at the end of the different rules, and to a few others which I shall now lay before the reader. In Plowdcn's Commentaries, (*) it is said " That if any persons are agreed upon a thing, and words are expressed or written to make the agreement, although they are not apt and usual words, yet if they have substance in them tending to the effect proposed, the law will take them to be of the same effect as usual words ; for the law always regards the intention of the parties, and will (6) Doug. 277. Abr. 510. (c) Part 1. c. 1. s. 1. art. 7. Evans's edi- (g) 5 Vin. Abr. 511. 1 Bl. Rep. 258. 6 tion. Term Rep. 338. («') See also 5 Vin. Abr. 510. Cowp. 600. (/*) 8 Bro. P. C. 341. Doug. 201. 1 Term Rep. 703. (*) Via". Sir W. Jones Law of Bailments, («) Co. Lit. 42. a. Cowp. 714. p. 29. &c. (/ Doug. 72, 3. 2 Bos. & Pul. 565. 5 Vin. (i) Fo. 140. 290. 4 # 24 24 Of the Construction of Contracts. [Part I. apply the words to that which, in common presumption, may be given to be their intent. And such laws are very commendable: for if the law should be so precise as always to insist upon a peculiar form and order of words in agreements, and would not regard the intention of the parties, when it was expressed in other words of substance, but would rather apply the intention of the parties to the order and form of words, than the words to the intention of the parties, such law would be more full of form than of substance. But our law, which is the most reasonable law upon earth, regards the effect and sub- stance of words more than the form of them, and takes the substance of words to imply the form thereof, rather than that the intent of the parties should be void : and the law *takes words of substance that are rarely used, to be equi- valent to words of substance that are usual." So, in contracts it is not material which of the parties speak the words, if the other agrees to them ; for the agreement of the minds of the parties is the only thing the law respects in con- tracts ; and such words as express the assent of the parties, and have substance in them, are sufficient, (k) And Willes, Ch. J. in the case of Packhurst v. Smith, (I) observes, " it is a known maxim in law, that ' benignce facienda sunt interpretationes chartarum ut res magis valeat quam periat? 1 There is also another, that, " verba intcntioni et non e contra debent inservire" His lordship also further observes, " That it is said in our books that the construc- tion of deeds ought to be favourable, and as near to the apparent intent of the parties as possibly may be, and as the law will permit ; that too much regard is not to be had to the natural and proper signification of words and sentences to prevent the simple intention of the parties from taking effect ; for that the law is not nice in grants, and therefore it doth often transpose words contrary to their order, to bring them to the intent of the parties ; for neither false Lat- in nor false English will make a deed void, if the intent of the parties doth plainly appear. 1 have collected these rules and maxims from Littleton, Plowden, Coke, Hobart, and Finch, persons of the greatest authority. But they are themselves so full of justice, and good sense, that they do not want any authority to support them, and I do not know that they were ever yet con- troverted. On the foundation of these rules, whenever it is necessary to give an opinion upon the doubtful words of a deed, the first thing we ought to en- quire into, is, what was the intention of the parties. If the intent be as doubt- ful as the words, it will be of no assistance at all. But if the intent of the par- ties be plain and clear, Ave ought, if possible, to put such a construction on the doubtful words of a deed as will best answer the intention of the parties, and reject that construction which manifestly intends to overturn and destroy it. I admit that though the intent of the parties be never so clear, it cannot take place contrary to the rules of law, nor can we put words in a deed which are not there ; nor put a construction on the words of a deed directly contrary to (Jfc) Ibid. Fo. 140. (/) Willes Rep. 332. Shep. Touch, c. 5. p. 86. •25 Chap. 2.] Of the Construction of Contracts. 25 the plain sense of them. But where the intent is plain and manifest, and the words doubtful and obscure, it is the duty of the judges to endeavour to find out such a meaning in the words as will best answer the intent of the parties." And Lord Ch. B. Comyns in his Digest (m) also states, " That an agreement or contract shall have a reasonable construction, according to the intent of the parties ; as, if a man agree with B. for twenty barrels of ale, he shall not have the barrels after the ale is spent." So, if a man promise payment *without say- ing to whom, it shall be intended to him from whom the consideration comes.(n) And upon a promise of payment according to the rate of 40s. per ton, it shall be intended that he will pay for the odd pounds according to the same rate.(o) Again, if one promise payment upon Easter-day, if A. do not pay the same day, A. has all the day for payment ; and therefore it shall be intended of a payment afterwards upon request, (p) Pothier's seventh rule of construction is, that in case of doubt, a clause ought to be interpreted against the person who stipulates any thing, and in discharge of the person who contracts the obligation. But the rule of construction adopted by our courts of law is quite the reverse ; namely, that in case of doubt, the words of a promise, or cove- nant, shall be taken most strongly against the promisor or covenantor, (q) Lord Bacon, however, in commenting upon this general maxim, says, " It is to be noted that this is the last rule to be resorted to, and is never to be relied upon but where all other rules of exposition of words fail ; and if any other rule come in place, this giveth place ;" and adds, " that it is a point worthy to be observed generally of the rules of law, that when they encounter and cross one another, that be understood which the law holds to be worthier and to be preferred ; and it is in this particular very notable to consider, that this being a rule of some strictness and rigour, doth not as it were its office, but in the ab- sence of other rules which are of some equity and humanity." Lord Eldon also, in a very recent case, observes,(r) " It is certainly true that the words of a covenant are to be taken most strongly against the covenantor ; but that must be qualified by the observation, that a due regard must be paid to the intention of the parties, as collected from the whole context of the instrument." Though the rule of construction of agreements is the same in a court of equity as in a court of law, yet the consideration of performance differs ; for at law a cove- nant and agreement must be strictly and literally performed ; but in equity it is sufficient if it be really and substantially performed according to the true in- tent and meaning of the parties, so far as circumstances will admit, ("f ) The executors and administrators of the contracting parties are generally comprehended in every contract though not mentioned, (s) but the heir is not (m) Tit. Agreement, C. et tit. Parols. (q) Co. Lit. 183. a. (n) Cro. Ei. 149. 848. Poph. 1S2. Nov. (r) 2 Bos. & Pul. 22. 83. (t) Vide 3 Ves. jun. C92. (o) Yelv. 134. (s) Com. Di») Reardonv. Swaby, 4 East Rep. 188. (A) 1 Esp. Rrp. 426. 1 Campb. 499. But (») Robinson v. Dnjbroitgh, 6 T. R. 317. see Chitty on Bills, 5 ed.428. n. 5. Sed ante sect. 10. of the stamp act. (i) Orford v. Cole, 2 Stark. 351. 7 # 48 48 Of the Stamping of Contracts and Agreements. [Part I. ment stamp, (o) A memorandum given by an overseer of the poor to the re- puted father of a bastard that he had received a bill of exchange for a certain sum of money, which when paid would exonerate him from the expences at- tending the birth and maintenance of such child, does not require an agreement stamp, (jo) A copy of an advertisement in the Gazette, of an agreement to dissolve a partnership, must have an agreement stamp, (q) But a mere notice of a dis- solution does not require to be stamped, (r) If an action is brought upon an agreement contained in a prospectus of terms delivered by the plaintiff to the defendant, that identical prospectus so delivered must be stamped ; the stamping of a copy is not sufficient, (s) It has, however, been held, that a person signifying by a printed prospectus the terms on which he was ready to engage to perform particular services, may, in an action against one who has employed him under those terms by a parol agreement, read the prospectus in evidence, without being stamped. (t) But a schoolmaster's printed terms delivered to a parent, requiring a month's notice of the removal of a scholar, cannot be given in evidence without a stamp, (m) A proposal to do certain works, containing an estimate of the amount, not finally acceded to, may be read in evidence, although not stamped (u) A written paper signed by an auctioneer, and delivered to the bidder, to whom lands were let by auction, containing the description of the lands, the term for which they are let to the bidder, and the rent payable, must be stamped, though it be only evidence of part of the contract, (w) But unless such paper be signed by the auctioneer, it need not be stamped. (x) And any writing which would be evidence of part of the contract only, must be stamped, (y) So, a schedule requires a stamp, as being part of the agreement to which it is annexed. (z) *So, a bill of parcels subscribed " Settled by two bills, one at nine and the other at twelve months," requires either a receipt or an agreement stamp.(a) 2. OF AGREEMENTS RELATING TO DIFFERENT SUBJECTS WITH SEVE- RAL PERSONS; AND OF DISTINCT AND SEPARATE AGREEMENTS ON THE SAME PAPER, BUT WITH ONE STAMP ONLY. It is now settled, that though a deed or agreement may affect the separate interest of several parties, yet if there be a community of the same subject matter as to all of them, one stamp will be sufficient ; but where the parties have separate and distinct interests in different subjects, in that case there must be a separate stamp for each party.(i) Thus, in the common case of a deed or (o) Smithv. Nightingale, 2 Stark. 375. f» Penniford v. Hamilton, 2 Stark. 475. (p) Watkins v. Hewlett, 3 Mo. 211. (w) Ramsbollom v. Mortley,2 M. & S. 445. (a) May v. Smith, 1 Esp. Rep. 233. (x) Same v. Tunbridge, lb. 434. r) Jenkins v. Blizard, 1 Stark. 418. (y) 2 M. & S. 445. i y s) Williams v. Sloughton, 2 Stark. 292. (z) 3 East Rep. 326. (i) Edgar v. Blick, 1 Stark. 464. (a) Smith v. Kelly, 4 Esp. Rep. 249. (u) 2 Stark. 292. (6) 13 East Rep. 246. •49 Chap. 8.] Of the Stamping of Contracts and Agreements. 49 agreement between a debtor and his creditors, where each creditor signs the same, and thereby agrees either to give further day of payment of their respec- tive debts, or to accept a certain sum by way of composition ; in that case, though the agreement is in fact a separate covenant, and the several deed of each creditor, yet, as there is a community of the same subject matter, and the whole being one transaction only, a separate stamp for each person is not required, (c) So, where one paper contains two contracts for the purchase of different lots by several persons, and a proper stamp be impressed on that part of the paper on which is written one of the contracts, this is sufficient to legalize the evidence of that particular contract. But in order to make both contracts binding, there must be two stamps, (d) So, though an agreement by several individuals for a subscription to one common fund, is, in its nature, separate as to each subscriber, yet it requires but one stamp, (e) And an agreement relative to prize shares, though several as t® each person, requires one stamp only, (f) So, where a wager upon a horse-race was reduced into writing, which was duly stamped, and the bet was afterwards, by indorsement, doubled ; it was determined that the stamp was sufficient to cover the original bet, but not the latter. (g) 3. OF THE EFFECT OF ALTERING AN AGREEMENT AFTER IT HAS BEEN ONCE EXECUTED AND DELIVERED. Where an agreement has been signed by one party only, and previously to the other party signing it, a new stipulation is inserted ; such *agreement does not require a new stamp, (h) But after it has been once executed by both par- ties, and delivered, if any additional stipulation or other material alteration be made, it will require a new stamp ; unless it happen to be an immaterial altera- tion.^) 4. OF THE EXEMPTION CLAUSE RELATING TO THE SALE OF GOODS. Upon the exemption clause in the stamp acts relating to the sale of goods, it has been determined, that a contract for the sale of a quantity of oil in a raw state, and consequently not capable of immediate delivery at the time of sale, is nevertheless within the clause, as being a contract relating to the sale of goods. (&) But where the subject matter of contract does not exist in the state of goods at the time of making the contract, and requires labour and materials to bring it into that state, in that case the contract does not fall within the ex- emption.^) A receipt for the price of a horse, containing a warranty, does (c) 1 New. Rep. 274. 1 Marsh. 525. Sanderson v. Symonds, 1 Brod. & Bine 426. (d) 12 East Rep. 6. 13 East Rep. 241. (i) 1 Brod. & B. 426. and see Chitty on (e) 13 East Rep. 232. Bills, 6 cd. 101, &c. (/) Ibid. 235. n. 6. (k) Wilks v. Atkinson, 1 Marsh. 412. \g) Peake's N. P. Cas. 127. (I) Waddington v. Bristow, 2 Bos. & Pul. (A) Bathe v. Taylor, 15 East Rep. 417, 4 IS. 452. *50 50 Of the Stamping of Contracts and Agreements. [Part I* not require an agreement stamp (//?) An agreement to share in goods purchas- ed by one of the contracting parties on their joint account, does not require a stamp.(«) But an agreement between merchants, that one shall take a share in an outfit of a ship and the adventure, is not an agreement for the sale of goods within the exception; and therefore must be stamped. (o) But an agree- ment by a broker to indemnify his principal on the re-sale of goods purchased by him, need not be stamped ; such agreement being considered as relating to the sale of goods. (p) So, an undertaking to guarantee the payment of goods sold to a third person, is within the exception, (q) And a stipulation for re- scinding a former agreement for the sale of goods, does not require an agree- ment stamp, (r) Again, an unstamped agreement is valid, so far as it relates to the sale of goods, though it contains stipulations unconnected with the con- tract of sale, (s) An executory agreement for making and putting up of machines in a house, does not fall within the exception, (t) So, an agreement for the sale of crops growing, is not within the clause of exemption. (v) *S. OF THE EXEMPTION OF LETTERS PASSING BY POST BETWEEN MERCHANTS AND TRADERS. In the case of Mackenzie v. Banks,{w) which was an action on the defend- ant's undertaking to pay the debt of his mother, who was in trade, the debt arose in the course of her business, which the defendant assisted her in carry- ing on, though without any share in it. The evidence of the undertaking was a letter written by the defendant to the plaintiff. And the question was, wheth- er it ought to have been stamped, as all agreements in writing are required to be by the 23 Geo. III. c. 58. " whether the writing be only evidence of the contract, or obligatory upon the parties from its being a written instrument ;" or whether this letter came within the exception of the 32 Geo. 3. c. 51. s. 1. by which it is provided that the first-mentioned act " shall not extend to make liable to the said stamp duty any letter passing by the post between merchants, or other persons carrying on trade or commerce in this kingdom residing at 50 miles distance from each other." At the trial, the letter had been received in evidence unstamped by Lord Kenyan Ch. J., and the plaintiff obtained a ver- dict. But a motion was afterwards made to set aside the verdict, on the ground that the letter did not fall within the terms of the exception in the latter statute : and it was argued that the defendant was neither a merchant or trader ; he had no concern in his mother's business. The letter was not written by him as agent for his mother, in which case, perhaps, the exception might have extend- ed to him, but in his own individual character to pay the debt of another. His (m) 2 Campb. Rep. 407. (,•) Whitworth v. Crockett, ib. 431. (>i) Venning v. Leckie, 13 East Rep. 7. (s) Heron v. Granger, 5 Esp. 269. (o) Leigh v. Banner, 1 Esp. Rep. 403. (t) Buxton v. Bidall, 3 East Rep. 303. 0>) Curry v. Edensor, 3 T. R. 524. (») 2 Taunt. 38. 2 Bos. &. Pul. 452. («j) Warrington v. Furbor, S East Rep. 242. (io) 5 Term Rep. 176. Watkins v. Vince, 2 Stark. 368. ♦51 Chap. 3.] Of the Stamping of Contracts and Agreements. 51 promise, therefore, was like that of any other indifferent person. The legisla- ture only intended to protect persons, whose ordinary business led them to write to each other in the course of their own particular callings. A person, who was not a trader, although he wrote a letter concerning some trading contract, would not be within the words or meaning of the exemption. But the Court said, " It appears in evidence that the defendant did carry on the business for his mother, and that this debt arose in the regular course of the trade. And therefore any letter written by him on account of that very trade, whereby he bound himself to another tradesman, may fairly be construed to fall within the letter and spirit of the act ; which meant that the correspondence of merchants and tradesmen at a distance from each other, on the faith of which they had considerable dealings, should not be fettered with stamps." A letter to a correspondent, requesting him to pay to certain persons or their order 600Z. out of the first proceeds that should become due of a stock of gun- powder then in his hands, and to charge the same to account, *is not within the exception ofjhe act, but must be stamped as a bill of exchange, although the letter form part of a subsequent correspondence between the three houses. (x) So, a letter from a principal to his factor, containing bills of exchange drawn upon the latter, and in which the principal promised to provide for the bills if certain goods, then either in the factor's possession or about to be placed in his hands, should remain unsold at the time of the bills falling due, requires to be stamped, and does not come within the exception in the stamp act, as a letter for or relating to the sale of goods ; the primary object of such letter not being the sale of goods, but the obtaining of an advance of money on the goods, (y) (x) Butts v. Sioan, 2 Broil. & Bing. 78. (i/) Smith v. Cator, 2 B. & A. 778. Firbank v. Bell, 1 B. & A. 36. *52 53 Of Contracts Illegal by the Common Law. [Part I. * CHAPTER IV. OF CONTRACTS AND AGREEMENTS DEEMED ILLEGAL BY THE COMMON AND STATUTE LAW. All contracts or agreements which have for their object any thing which is either repugnant to justice, or in violation of religion or public decency, are void. So, are all contracts made in contravention of the general policy of the commonbiw, or jn direcUoppositicm to, the provisions of an act of parlia- ment : for^rtw^Tcon^acfw ac^^wnorimr^sa^^ooia mlawcmd*equity\lfa) And whenever a contract or agreement is entered into with a view to contravene any of these general principles, there is no form of words, however artfully in- troduced or omitted, which can prevent courts of law and equity from investigat- ing the truth of the transaction. And therefore, in an action upon a bond(i) given for compounding a prosecution for perjury, it was argued in support of the action, that no averment could be admitted of the bond having been given for such a consideration, because it did not appear in the condition. But to this it was answered by Lord Ch. J. Wilmot, "That the manner of the transaction was to gild over and conceal the truth ; and whenever courts of law see such attempts made to conceal such wicked deeds, they will brush away the cobweb varnish, and show the transactions in their true light. This is an agreement to stifle a prosecution for wilful and corrupt perjury, a crime most detrimental to the commonwealth ; for it is the duty of every man to prosecute, appear against, and bring offenders of this sort to justice. This is a contract to tempt a man to transgress the law, to do that which is injurious to the com- munity : it is void by the common law ; and the reason why the common law says such contracts are void, is for the public good. You shall not stipulate for iniquity. All writers upon our law agree in this, that no polluted hand shall touch the pure fountains of justice. Whoever is a party to an unlawful con- tract, if he hath once paid the money stipulated to be paid in pursuance there- of, 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.'' Upon the same principle it has been determined, that if A. promise B. money (a) See Fonbl. Treat, of Equity, vol. i. (b) Collins v. Blantern, 2 Wils. 341. 347. bk. 1. c. 4. s. 4. n. y. See also 1 P. Wins. 156. 220. *53 7 * Chap. 4.] Of Contracts Illegal by the Common Law, 53 in consideration that he will not give evidence in a suit depending, such prom- ise cannot be enforced; it being unlawful and iniquitous *for any man to sup- press testimony in any cause, (c) So, a promise made by the friend of a bank- rupt when the latter was on his last examination, that in consideration that the assignees and commissioners would forbear to examine him touching certain sums which he was charged with having received and not accounted for, he would pay such sums as the bankrupt had received and not accounted for, is void ; as being against the policy of the bankrupt laws : for the inten- tion of the legislature was, that the creditors should have the full examination of the bankrupt as to the state of his effects and the disposition of them ; whereas the promise in this case would be to induce the assignees and commis- sioners to forbear doing their duty, (d) But a covenant by a friend of a bankrupt to pay all his creditors their full debts, in consideration that they will not proceed any further under the commission, is lawful, (e) So, an agreement not to move the court against an attorney for malpractices, is illegal and void, (f) But a promissory note given by a party indicted for a misdemeanor, for the amount of the costs and expences of the prosecution, is valid when given after the conviction, and at the recommendation of the court, (g) A contract or agreement must be unlawful at the time of making it, otherwise it cannot be set aside ; for it is said, (A) the law knows of no contract but what was good or bad at the time of the contract made ; it cannot be one or other according to a subsequent contingency. In this chapter it will only be necessary to bring before the reader a general view of the cases in which contracts and agreements are declared void by the common law, and those which are prohibited by statute. In considering those which come under the first class, it is hardly necessary to observe, that every contract or agreement which has for its object any thing forbidden by the law of God ; as to commit murder, theft, perjury, or other crime, is void by the common law. Therefore, if a man is under an obligation to pay to an- other 201. if he will kill or rob such a person ; this is a void obligation, and creates no right, (i) The common law also prohibits every thing which is un- just, or contra bonos mores. Therefore, a contract or agreement which is made in contravention of these general principles is void : for instance, if A. promise, in consideration of 20s. paid to him by B.,he will pay B. 40s. if he does not beat J. S. out of such a close ; this is illegal and void, (k) So, if A. request B. to beat another, and promise to save him harmless ; this is a void consid- eration, for the act is unlawful. (I) But it is said, (m) if I request another to enter into B.'s land, and in my name *to drive out the beasts and impound (c) 1 Leon. ISO. N. P. 146. (d) Ntrot v. Wallace, 3 Term Rep. 17. (i) Fitzh. Abr. tit. Obligation, 13. (e) Kaye v. Bolton, 6 Term Rep. 134. (k) 2 Lev. 174. (/) 1 Campb. Rep. 55. (/) Hutt. 56. (g) 11 East Rep. 46. (m) Per Hobart, in the case of Hutton and (h) Per Cur. 10 Mod. 67. See also Bui. Winch, Win. 49. *54 *55 55 Of Contracts Illegal by the Common Law. [Part I. them, and promise to save him harmless, this is a good assumpsit, though the act is tortious. (40) 2. Of Contracts respecting Cohabitation and Prostitution.] — Con- tracts entered into with a view to future cohabitation and prostitution are ille- gal and void, as being against public morality, (n) But an engagement merely by way of reparation for past seduction and cohabitation is valid ; for this is no more than what a man ought, in honour and conscience, to do.(o) But a contract for the use and occupation of lodgings which are let expressly for the purposes of prostitution, is void.(/j) Though an agreement to pay for the washing and getting up of expensive articles of dress for a prostitute is valid, though it be known to the party by whom the work is done, that the dresses are to enable her to appear at public places, &c. (q) 3. Of Contracts made in Restraint of trade.] (41) — All contracts, which have for their object any thing contrary to the principles of sound poli- cy, are void by the common law.(r) Under this description may be ranked contracts which bind any to a total restraint of trade ; for all such obligations are contrary to principles of national policy, one great object of which is to encourage and promote trade. Therefore it has been holden, that a promise or obligation which binds any to a total restraint of trade, whether for a limited time or generally, is unlawful and void, (s) But, if a man for a good consider- ation restrains himself from the exercise of his trade in a particular place, this is lawful ; for the policy of the nation is not concerned in what place a man exercises his calling. And there may happen instances wherein such a con- tract may be useful and beneficial ; as to prevent a town from being over- stocked with any particular trade ; or, in the case of an old man, who, per- ceiving himself under such circumstances of body or mind as that he is likely to be a loser by continuing his trade, will find it better to part with it for a con- sideration ; that, by selling his custom, he may procure to himself a livelihood, which he might probably have lost by trading longer, (t) 4. Of Restraint of Marriage.] — Upon the same principle of public policy the common law makes void all contracts and agreements which to- (n) Walker v. Perkins, 3 Burr. 1 563. See (q) 1 Bos. and Pul. 340. See also 1 also 2 Ves. 160. 5 Ves. jun. 293. Campb. 348. (o) Jirmandale v. Harris, 2 P. Wms. 432. (>■) Vide Covvp. 39. Cray v. Rooke, Forrest. 153. Turner v. Vaug- (s) Vide Mitchel v. Reynolds, 1 P. Wms. Hon, 2 Wils. 339. 181. Et post, Part II. c. 10. (p) 1 Esp. Rep. 13. Ni. Pri. Abr. 59, 60. (*) Ibid. (40) If one request or direct another to do an act which is known to be a trespass, and promise to indemnify him, the promise is void; but if the party who does the act at the instance or command of another, does not know at the time, that the act is unlawful, the promise of indemnity is valid. Allaire v. Oidand, 2 J. C. 52. Coventry v. Barton, 17 J. R. 142. In relation to contracts, the consideration of which is illegal, See Bartle v. Nutt, Adm'r. of Coleman, 4 Peters, 184. Craig v. State of Missouri, Id. 410. Fales v. Mayberry, 2 Gall. 560. Armstrong v. Toler, 11 Wheat. 258. and cases cited in note (a) p. 265. 1 Swift's Dijz. 209, et seq. (41) See post, Chap. X. Chap. 4] Of Contracts Illegal by the Common Law. 55 tally restrain a person from marrying, or from marrying any body except a par- ticular person, without imposing an obligation to marry that particular person : Thus, where A. promised B. that he *would not marry with any person besides herself; and if he did, he agreed to pay her 10002. The Court held, that this was an agreement in restraint of marriage ; for it was not a covenant to marry the plaintiff, but not to marry any one else ; and yet she was under no obliga- tion to marry him ; so that it restrained him from marrying at all, in case she had chosen not to permit him to marry \\e,r.{u) (42) 5. Marriage Brocage Contracts.] — So, all marriage brocage contracts are void.(t>) These contracts are so called from the circumstance of their promising a reward to a person if, by reason of the influence which he may possess over one of the parties to the match, which is sought to be accomplish- ed, he can procure a marriage between them. They are also considered to be of a very pernicious tendency, by being the occasion of many unhappy mar- riages. (43) G. Simoniacal Contracts.] — So, all simoniacal contracts are void : Thus, where the consideration of the contract was, that the plaintiff would procure the defendant to be presented and instituted to a chapel, which was a donative in the king's gift ; it was adjudged illegal, on the ground of its being simony, and therefore incapable of supporting an assumpsit, (iv) 7. Of Maintenance of Suits.] — So, all contracts and agreements for the maintenance of suits are illegal and void. (>r) Maintenance is an officious in- termeddling in a suit that no way belongs to one, by maintaining or assisting either party with money or otherwise, to prosecute or defend it. It is an offence against public justice, as it keeps alive strife and contention, and per- verts the remedial process of the law into an engine of oppression. A man may, however, maintain the suit of his near kinsman, servant, or poor neigh- bour, out of charity and compassion, with impunity. And any agreement made in respect of such maintenance is valid, (y) 8. Of Contracts or promises made with Sheriffs.] — If a sheriff for 10/. promise that a prisoner shall escape, this promise is unlawful and void.(-z) So, where A. is in execution at the suit of B. ; and C, in consideration that the gaoler will permit A.' to go at large, assumes and promises to him that A. shall pay the debt at a certain day, and that he the said C. will save the gaoler harm- (») Lowe v. Peers, 4 Bur. 2225. See also (w) Cro. Car. 337. 353. 361. See also 10 East Rep. 22. 2 Atk. 538. 540. 10 Ves. the case of Fytche v. Bishop of London, Barn's jun. 429. Eccl. Law, tit. Simony, 4 Term Rep. 359. (u) See Arundel v. Travillian, 1 Ch. Rep. (x) See 1 Leon. 179. Dy. 355. b. 47. 4 Bro. P. C. 144. 8vo. ed. (y) See 1 Hawk. P. C. cap. 83. (z) 10 Co. 102. Cro. El. 199. (42) And for the same reason, a condition annexed to a devise or bequest for life, whereby it is to be divested by the marriage of the devisee or legatee, is void ; because limitations in restraint of marriage are not to be favored. Parsons v. Winslow, 6 Mass. Rep. 169, (43) See Boynlon \C Hubbard, 7 Mass. Rep. 118. Per Parsons, Ch. J. 8 *56 56 Of Contracts Illegal by the Common Law. [Part I. less ; this promise is void, because the consideration is against law. (a) (44) Or, if a promise be made to a bailiff, to give him a sum of money to accept bail, it is void ; it being the duty of the sheriff to take good and sufficient bail when tendered to him. (b) *And if A. obtains a judgment against B., and thereupon takes out an elegit, and delivers it to the under-sheriff, who by vir- tue thereof seizes certain goods of B. ; and afterwards the under-sheriff, in consideration that A. will take out a new elegit, and deliver it to him, promises to cause and procure the said goods to be found by inquisition, and to deliver the same to such person as A. shall appoint, &c. ; this promise is against law, being to do a thing against the duty of his place, by which he is bound to return an indifferent and equal jury between the parties ; and though part of the promise was to do a lawful act, yet that depending upon the other part, which was illegal, makes the whole void.(c) But a contract to indemnify a sheriff in the doing of a lawful act is good ; as where a plaintiff in an action pointed out particular goods, and desired the sher- iff to take them under a fieri facias ; and in consideration that the sheriff would take them, the plaintiff promised to indemnify him ; this was held a valid prom- ise ; for the plaintiff having pointed out the goods, and required the sheriff to take them in execution, it was reasonable that he should save the sheriff harm- less, (d) So, where A. was arrested, and C. in consideration that the bailiff would suffer A. to continue in the house of C. till the next morning, promised that he would then deliver A. in safe custody to the bailiff; this was held to be a lawful consideration ; for it shall not be intended that the bailiff was ever ab- sent from B., so that it could be no escape, (e) 9. Trading with an Enemy.] — All trading with the subjects of an ene- my's country without the king's licence, is illegal. Therefore, a policy of in- surance on enemy's property is void, (f) It is also illegal for a subject in time of war, without the king's licence, to bring, even in a neutral ship, goods from an enemy's port, which were purchased by his agent resident in the enemy's country, after the commencement of hostilities ; although it may not appear that they were purchased of an enemy, (g) But, a neutral subject residing in the enemy's country, and carrying on trade there in partnership with an alien enemy, may insure his interest in the joint property. (A) (45) (a) Yelv. 197. 2Bulst. 213. (/) 8 Term Rep. 548. 6 Term Rep. 23. (6) Smith v. Stotcsbury, 2 Bur. 924. 1 Bl. 561. 4 East 402. 417. Et vid. Bac. Abr. Rep. 204. S. C. tit. Alien. D. as to the distinction between (c) T. Jones 24. Cart. 223. alien friend and alien enemy, &c. See also (d) Cro. Jac. 652. See also 1 Ld. Raym. 8 East Rep. 273. Long on Sales. 17. 92. 279. (g) Potts v. Bell, 8 Term Rep. 548. (e) 1 Sid. 132. 1 Lev. 98. (A) 6 Term Rep. 413. (44) See Denny v. Lincoln, 5 Mass. Rep. 385. Churchill v. Perkins, Id. 541.- An agree- ment to indemnity an officer against his liability for a voluntary escape, is void ; being against the policy of the law. Ayer v. Hutchins, 4 Mass. Rep. 370. (45) All trading intercourse and negotiation with an enemy's country, without the direct permission of government, is unlawful. ' Griswold v. Waddington in Error, 16 J. R. 438. S. P. Seamanv. Waddington, Id. 510. Sec Amory v. M'Gregor, 15 J. R. 24. A contract, the object of which, is the ransom of a vessel captured by an enemv, is almost the only excep- # 57 Chap. 4.] Of Contracts Illegal by the Common Law. 57 10. Of Wagers. J — All wagers which have a tendency to incite a breach of the peace, or which are contrary to principles of sound policy or morality, are illegal, and void by the common law : as, if a wager be laid on the event of a battle ; (i) or upon the sex of a person ;(&) or upon the event of war or peace ; (/) or of an election of members to *serve in parliament ; (»i) (46) or re- specting the produce of any branch of the revenue : (?i) these are unlawful and void. And, if a wager is made merely as a colour to disguise an illegal trans- action, as simony, bribery, usury, or the like, they are equally void, (o) But, in general, a wager may be considered as legal if the subject of it has no im- mediate tendency to a breach of the peace, or to affect the feelings or interest of a third person, and is not contrary to the principles of morality or sound policy. 11. Of Gambling or Speculating Contracts made under Colour of a Sale of Goods.] — It has been recently determined in our courts of nisi prius, that if two persons enter into a contract under the semblance of a sale of goods, not intending really to buy or sell the commodity, but merely as a gambling speculation, and to pay the difference of the market price on a par- ticular day, like a time bargain in the stocks, such a contract is illegal and void at common law, and no action will lie to enforce it. (p) 12. Of Fraud.] — Contracts which are infected with fraud are void both at law and in equity ; for the basis of all dealings ought to be good faith. There- fore, where two sutlers (q) to several regiments of militia (who as such were entitled to certain forage of oats and hay for divers horses daily out of the king's magazine belonging to the camp) entered into an agreement with the person who furnished and supplied the magazine, that the sutlers would abstain from taking the forage, or such part thereof as they should think fit, and would leave the same to be the property of the person supplying them, and that he should pay and allow them 9 l-2d. by the ration, for every ration to which they should (i) 5 Term Rep. 405. 1822, upon a contract for tallow. Gurney (k) Cowp. 729. and Comyn for the plaintiff", and Campbell (l) 1 Term Rep. 57. n. b. lor the defendant. A similar case happened (m) 1 Term Rep. 56. before the same learned judge, of W ardle fy (n) 2 Term R.ep. 610. 2 Bos. and Pul. Fowler, in which campbell was for the plain- 130. tiftj and Wilde for the defendant, (o) Cowp. 39. (q) Willis and another v. Baldwin, Doug. (]}) Hilberds v. Pettipicrre, coram Ld. Ch. 450. J. Abbott, at the sittings at Guildhall in Oct. tion to this general rule: And this is a thing of necessity arising out of the laws of war. Goodrich v. Gordon, 15 J. R. 6. Grisicold v. Waddington, 16 J. R. 451 — 456. Per Kent, Chancellor. One citizen of the United States cannot lawfully purchase of, or sell to, another citizen, a license or pass from a public enemy, to guard an American vessel against capture. Patton v. Nicholson, 3 Wheat. 204. and see note (a) 207. et seq. See contra, Coolidge v. Inglee, 13 Mass. Rep. 26. (46) A wager on the event of an election of the Chief magistrate of a state, is unlawful ; as being against public policy. Bunn v. Riker, 4 J. R. 426. Yeates v. Foot, in Error, 12 J. R. 1. Fischer v. Yeates, 11 J. R. 23. Denniston v. Cook, 12 J. R. 376. Smyth v. M' Mas- ter, 2 Browne, 182. But wagers fairly won, are recoverable, unless founded on a transac- tion which is immoral, illegal or indecent. Morgan v. Richards, 1 Browne, 171. Campbell v. Richardson, 10 J. R. 406. *58 58 Of Contracts Illegal by the Common Lata. [Part I. be entitled, and which they should so leave at the magazine : this was held to be a corrupt agreement between the parties, as having for its object the chea- ting of government, by taking a composition for the forage of the whole num- ber of horses allowed, whether they were kept or not, which was a clear fraud upon the public. So, where goods are put up to sale by public auction, under the usual condi- tions, viz. " that the highest bidder shall be the purchaser," if the owner, or any third person on his behalf, secretly attend the sale and bid for the goods, in or- der to enhance the price, it is a fraud upon the real bidders ; and the sale is therefore void.(r) Again, if A. agree to purchase goods of B. at a certain sum for the benefit of C. ; any secret *agreement between B. and C, that the latter shall pay a further sum for them is void, as a fraud on A. ; and C. is not liable to pay such further sum. (s) So, an agreement to pay so much in the pound for recommending customers to purchase goods, is said (t) to be illegal ; such en- gagements having a tendency to enhance the price of the goods, and conse- quently a species of fraud upon third persons. Again, if all the creditors of an insolvent consent to accept a composition for their respective demands upon an assignment of his effects by a deed of trust, to which they are all parties, and one of them, before he executes, obtain from the insolvent a promissory note for the residue of his demand, by refusing to execute till such note be made ; the note is void in law, as a fraud on the rest of the creditors ; and a subse- quent promise to pay it, is a promise without consideration, and therefore will not support an action, (u) The only remaining circumstance which need be noticed in this general view of the subject is the fraudulent representation, or concealment of material circumstances, which, it is said, (v) vitiates all contracts. For it is a rule, that each of the contracting parties is bound to disclose faithfully to the other all material circumstances within his knowledge respecting the subject matter of the contract ; and if this be omitted, either from design, neglect, or accident, the contract is void. With respect, however, to concealment, it is apprehen- ded that the rule only applies to cases of concealment of material circumstan- ces which are exclusively within the knowledge of one of the contracting par- ties, and does not extend to cases of sales, where both parties inspect the com- modity bargained for, and each exercises his own judgment as to the quality and value, &c. and where no deceit is practised by either party, (to) 2. OF CONTRACTS DECLARED VOID BY STATUTE. Having shown what contracts and agreements are void at the common law, (r) Bexwell v. Christie, Cowp. 395. How- Jackson v. Lomas, 4 Term Rep. 166. Leicester ard v.Castle, G Term Rep. 642. S. P. And see v. Rose, 4 East 372. S. P. Christie v. the Attorney General, 6 Bro. P.C. (v) Per Yates, Just. 2 Bl. Rep 46o .See 5 2o also 2 P. Wins. 170. Doug. 260. 1 Term (a) Jackson v. Duchaire, 3 Term Rep. 551. Rep. 12. Skin. 327. (0 Per Ld. Ellenborough, Wyburd v. Statu- (w) Vide 2 Bl. Com. 4ol. 3 Bl. Com. 166. ton, 4 Esp. Rep. 179. See also Sugden's Law of Vendors, 3 Ed. (u) Cockshot v. Bennett, 2 Term Rep. 763. 189. 223. 59* Chap. 4.] Of Contracts declared void by Statute. 59 we will now consider shortly those which are declared void by statute ; and here it may be remarked, as a general rule, that every contract made for or about any matter or thing which is prohibited and made unlawful by any stat- ute, is a void contract, though the statute itself does not mention that it shall be so, but only inflicts a penalty on the offender ; because a penalty implies a prohibition, though there are * no prohibitory words in the statute, (x) And in a very recent case^yj Lord Eldon said, "It is quite clear that a court of jus- tice can give no assistance to the enforcement of contracts which the law of the land has interdicted." So, a contract which is declared by a particular statute to be illegal, is not made good by a repeal of that statute after the contract has been executed, (z) And the circumstance of the contracting parties being ig- norant of the law, and being innocent of any intention to violate it, will be no excuse. 1. Or Contracts made on Sunday.] — Every centract made on a Sunday by a person in exercise of his ordinary calling is void by the stat. 29 Car. 2. c. 7. (47J But, a sale of goods made on that day, which is not made in the exercise of the ordinary calling of the vendor or his agent, is not void either at common law or by statute, (a) 2. Of Sale of Officers.] — By the statutes 12 R. 2.C.2. and 5 & 6 Ed. 6. c. 16. the sale of certain public offices, and the deputations thereof are prohib- ited, and by the latter statute it is enacted, that all agreements, covenants, bonds, or assurances for any of the. said offices, or the deputation thereof, shall be void. (6 J (48) 3. Sheriffs.] — By the stat. 23 Hen. 6. c. 9. the sheriff is directed to let out of prison all persons by them arrested on mesne process, or by cause of indict- ment of trespass, upon reasonable sureties of sufficient persons. And it is enact- ed, " that no sheriff shall take any obligation for any cause therein directed, but only to themselves, of any person, nor by any person which shall be in their ward by the course of the law, but by the name of their office, and upon condi- tion written, that the said prisoners shall appear at the day contained in the writ, bill, or warrant, and in such places as the said writs, bills, or warrants, shall require. And that if any of the said sheriffs, or other officers or minis- ters, take any obligation in another form, by colour of their offices, it shall be void." Upon this statute it has been holden, that if a sherifl'lct a prisoner, who is not bailable, go at large upon his single bond ; such obligation is void, (c) And (x) Carth. 252. 1 Taunt. 13S. 5 Barn, and (a) Drury v. Dcfontaine, 1 Taunt. 136. Aid. 335. (b) See also the late stat. 49 Geo. 3. c. (y) Ex parte Dyster, 2 Rose Bkpt. cas. 12(5. And for the cases on this subject, vide 351. Partii. c. 11. (2) 1 H. Blac. C5. (c) 10 Co. 100. b. (47) See Morgan v. Richard, 1 Browne, 171. The letting of a carriage for the conveyance of persons, on Sunday, from a belief that it is to be used in a case of necessity or charily, though such case docs not in fact exist, is not an offence within the prohibition of the Stat. October session 1814, c. 17. JMyers v. State of Connecticut. 1 Conn. Rep. 502. (48) See post chap. XL. *60 60 Of Contracts declared void by Statute, [Part I. this statute also extends to promises, as well as to obligations : and according- ly it has been holden, (d) that an agreement in writing to put in good bail for a person arrested on mesne process, at the return of the writ, or surrender the body, or pay debt and costs, made by a third person with the bailiff of a sher- iff, in consideration of his discharging the party arrested, was void by the stat- ute of Hen. 6. ; for, since the passing of that statute, the usage has been to take the security by bond ; and that bond, by the words of the statute, # must be en- tered into to the sheriff, or to such officer as has the return of process ; where- as here was no bond, but a mere simple contract, and that with the sheriffs officer ; and farther the bond must be given only for the appearance of the par- ty, and for no other purpose. . 4. Of Usurious Contracts.] — By the stat. 12 Ann. st. 2. c. 16. to pre- vent usury, it is enacted, " that no person or persons whatsoever, upon any contract, shall take directly, or indirectly, for loan of any monies, wares, mer- chandize, or other commodities whatsoever, above the value of 5/. for the for- bearance of 1007. for a year, and so after that rate for a greater or lesser sum, or for a longer or shorter time ; and that all bonds, contracts, and assurances whatsoever, made for payment of any principle, or money to be lent or cove- nanted to be performed upon or for any usury, whereupon or whereby there shall be reserved or taken above the rate of 5/. in the hundred as aforesaid, shall be utterly void." These restrictions, however, do not apply to contracts made in foreign countries ; for on such contracts our courts will direct the payment of interest according to the law of the country in which such contract was made, (e) Thus Irish, America?}, Turkish, and Indian interest have been allowed in our courts to the amount of even 12/. per cent. For the moderation or exorbitance of interest depends upon local circumstances, and the refusal to enforce such contracts would put a stop to all foreign trade. (/*) Every security given upon an usurious consideration is so contaminated by it, thaf the statute of usury makes the security absolutely null and void ; so that it cannot be enforced by law by any person, however innocent. There- fore it has been held, (g) that a bill of exchange, or a promissory note given upon an usurious consideration, is void, even in the hands of an indorsee for a valuable consideration without notice of the usury. But, by a recent statute of the 58 Geo. 3. c. 93. such bills of exchange are made valid in the hands of a bona fide indorsee for a valuable consideration, without notice of the usury be- tween the original parties. 5. Or Gaming.] — Gaming is also prohibited by statute, though at common law the playing at cards, dice, &c. when practised innocently, and as a recrea- tion, is lawful if it be not within the restriction of any statute. (A) But as the practice was found to encourage idleness and other vices, the statute 33 Hen. ( and ready slung for the purpose of smuggling, but it was brought into England at the risk of the defendant: the Court held that the action could not be sup- ported. So, where prohibited drugs were sold knowingly to be used in brewing, such sale was declared void : thus, in the case of Langton v. Hughes, (z) which was an action for goods sold and delivered by a druggist to a brewer, the seller knowing at the time of the sale that they were to be used in the brewery. The goods consisted of Spanish juice, isinglass, ginger, and other articles, the use of which by brewers is contrary to the provisions of 42 Geo. 3. c. 38., by which they are prohibited from using any thing but malt and hops in the brewing of beer. The Court held that the action could not be sustained. 10. Trading to the East Indies.] — By the stat. 7 Geo. 1. c. 21. s. 2., ''All contracts made by His Majesty's subjects for loading any ship in the ser- vice of foreigners with a cargo to trade to the East hidies, are declared void." And therefore, to an action of debt on a bond, the defendant pleaded that it had been unlawfully agreed between the plaintiffs and the defendant, that the plain- tiffs should sell and deliver to the defendant certain goods, to be shipped by the defendant in London, to be carried to Ostend, and there to be shipped on board other vessels to the East Indies. The Court determined, that the plaintiffs must be deemed principals in the transaction, and that the case was directly within the act of parliament, (a) 11. Forestalling, Regrating, &c] — Forestalling, regrating, and engross- ing are treated by the law as offences against public trade, and are on that ac- count illegal. Forestalling is described in the stat. 5 & 6 Edw. 6. c. 14., to be the buying or contracting for any merchandize or victual coming in the way to market, or dissuading persons from bringing their goods or provisions there, or persuading them to enhance the prices there ; regrating, to be the buying of corn or other dead victual in any market, and selling it again in the same mar- ket, or within four *miles of the place ; and engrossing, the getting into one's possession, or buying up, large quantities of corn or other dead victuals, with intent to sell them again. This statute was repealed by 12 Geo. 3. c. 71. ; but forestalling, regrating, and engrossing are still offences at common law ; and it has been decided that selling corn in sheaves is illegal, as being in effect fore- stalling the market.(6) But a sale of growing crops of corn or of hops is not contrary to law. {c) (y) 3 Term Rep. 454. Et vide Part II. c. 1. meree, 1 vol. 666. (s) 1 Maule & Selw. 593. (b) Hudham's case, 3 Inst. 197. (a) Lightfoot y. Tenant, 1 Bos. & Pul. 551. (c) Bri.itoic v. Waddington, 2 New Rep. Vide 53 Geo. 3. <•. 155., and Chitty on Coin- 355. *66 Chap. 4c] Of Contracts declared void by Statute. 66 12. Sale of Bricks.] — The stat. 17 Geo. 3. c. 42., which requires bricks for sale to be of certain dimensions, and gives a penalty for the breach of that regulation, was passed to protect the buyer against the fraud of the seller ; bricks therefore sold and delivered under the statutable size unknown to the buyer, the seller cannot recover the value of them ; for the policy of the act was to protect the buyer against the fraud of the seller, and this can only be done by holding that the latter shall not recover the value of such bricks so sold.(d) 13. Treating at Elections.]— By the statute 7&8W. 3. c. 4. (which was made to prevent all species of bribery and corruption at elections for mem- bers of parliament,) it is enacted, " That no person after the teste of the writ to the sheriff, shall before his election, directly or indirectly, give, present, or allow to any person or persons having voice or vote in such election, any mon- ey, meat, drink, entertainment, or provision ; or make any present, gift, reward, or entertainment ; or shall at any time hereafter make any promise, agreement, obligation, or engagement, to give or allow any money, meat, drink, provision, present, reward, or entertainment, to or for any such person or persons in par- ticular, or to any such county, city, &c, or to or for the use, &c. of any such person, in order to be elected, or for being elected to serve in parliament for such county, city, &c." Upon this statute it has been holden,(e) that an innkeeper furnishing provis- ions for voters, at the request of a candidate, after the teste of the writ, cannot recover the expences of such provisions against the candidate. And non-resi- dent voters are equally within the meaning of this act as resident voters, (f) 14. Bankrupts.] — All agreements by a bankrupt with a creditor to pay money, Sfc.for signing his certificate, are declared void by the stat. 5 Geo. 2. c. 30. s. 11., which enacts, " That every bill, note, contract, agreement, or other security whatsoever, to be made or given by any bankrupt, or by any other person, unto, or to the use of, or in trust for any creditor or creditors, or for the security of the payment of any debt or sum of money due from such bankrupt at the time of his becoming *bankrupt, or any part thereof, between the time of his becoming bankrupt and such bankrupt's discharge, as a consid- eration, or to the intent, to persuade him, her, or them to consent to or sign any such allowance or certificate, shall be wholly void and of no effect ; and the monies thereby secured or agreed to be paid shall not be recovered or recover- able." (g) (50) (. 328. Waldenv. Gratz, 1 Wheat. 292. Rogers v. Hill'.ioiise, 3 Conn. Rep. 3SS. M'CaUaugh v. *68 69 Statute of Limitation oj Actions [Part I. till their return to this country, (d) (52) And if *the plaintiff be a foreigner, and do not come to England for a great many years after the cause of action arises, he still has six years after his coming hither to bring his action. (e) (53) And if he never come to England himself, he has always a right of action while he lives abroad ; and after his death, his executors or administrators are in the same situation, (f) The statute cannot be a bar in any case, unless the time of limitation is ex- pired after there has been a complete cause of action ; as, if a man promise to pay ten pounds to J. S. when he comes from Rome, or when he marries ; and ten years after, J. S. marries, or comes from Rome, the right of action accrues from the happening of the contingency, from which time the statute will begin to run, and not from the time of the promise, (g) (54) One of the objects of the statute of James, for limiting the period in which the action should be brought, was to protect persons from long protracted claims, when the vouchers and documents, and indeed all traces of evidence relating thereto might be lost, and the party left wholly undefended by the improper neglect of the claimant. Another more important object was to prevent the mischief which might happen in the commission of perjury in endeavouring to support and establish such dormant claims. As, however, many just claims may lie dormant either from negligence, or from particular causes with regard to the situation and circumstances of the parties, it has been determined, that if after the six years have elapsed, the party, upon whom the claim is made, eith- er expressly promises or acknowledges the existence of the debt or contract, or promises to pay the debt or perform the contract, such acknowledgment or (d) 2 Stra. 836. Fitzgib. 81. cases on this statute are collected and digest- (e)3 Wils. 145. ed. (/) Vid. Tidd's Prac. 16. 7 ed. where the (g) Godb. 437. 1 Lev. 48. 1 H. Bl. 631. Speed, 3 M'Cord, 455. In -Cook v. Wood, 1 M'Cord, 139., which was an action of trespass brought to try the title of land, the court were equally divided in opinion, as to the propriety of applying the general rule, in that case. (52) The spirit of the rule contained in the text, has been observed by the courts of our own country. Dvrightv. Clark, 7 Mass. Rep. 515. Fowler v. Hunt, 10 J. R. 464. Four v. RoberdeaxCs Exr. 3 Cranch, 174. Rugbies v. Keeler, 3 J. R. 261. But the debtor's return into the commonwealth, from which the statute will begin to run, must not be clandestine, but so open and public, that the creditor, by the use of reasonable diligence, may obtain secu- ritv for his debt by arresting the debtor's body. While v. Bailey, 3 Mass. Rep. 271. Fowler v. Hunt, ut supra." See Byrne v. Crowninshield, 1 Pick. 263. In Pennsylvania it has been de- cided, that a citizen of South Carolina, was not within the proviso of the act of 1713, in favor of " persons bevond sea at the time the cause of action accrued." Ward v. Hallam, 2 Dall. 217. S. C. 1 Ycates, 329. See also, Bond v. Jay, 7 Cranch, 350. The terms " beyond seas" in the proviso of the statute of limitations, are equivalent to, without the limits of the slate where the statute is enacted ; and the party who is without those limits is entitled to the benefit ofthe exception. Murray v. Baker, 3 Wheat. 541. Shelby v. Guy, 11 Wheat. 361. Forbes v. Foot, 2 M'Cord, 331. And where both parties are beyond sea, without^any ofthe United States, when the cause of action accrues, and afterwards, both return' within the Commonwealth, the statute will begin to run when both have returned, although both be not within the commonwealth at the same time ; because the impediment may be removed as to one, and remain as to the other ; and after it has been removed as to both, the statute commences its operation. Vans v. Higginstm, 10 Mass. Rep. 29. (53) See Chonvpmr. Mason, 1 Gall. 342. Uuggla ■ . Keela; " .T. R. 261. (54) Sec po at, " •69 Chap. 5.] Upon Contracts and Promises. oy promise will take the case out of the statute, and entitle the party claiming to recover. (55) And a conditional promise has been liolden sufficient for this purpose, as well as an absolute one ; as where the defendant said to the plain- tiff, Prove your debt and I will pay it. (A) It was formerly doubted whether a mere acknowledgment of the debt, without a promise of payment, was sufficient to take the case out of the statute ; such an acknowledgment being only con- sidered as evidence of a promise ; as in trover, where a demand and refusal are not holden to be a conversion, but only evidence of it. (i) To prevent the op- eration of the statute, it is, in general, necessary to prove an express acknowledg- ment of the existence of a debt, (k) And where a defendant having entered into a guarantie in writing, and become liable upon it at the period of more than six years before the commencement *of the suit, verbally promised, within six years, that the matter should be arranged ; it was determined, that the statute of frauds having been once satisfied by the original promise being in writing, it was not necessary, in order to take the case out of the statute of limitations, that the latter promise should also be in writing. (x) If an agent has been employed to pay money for work done for the defendant, and the workmen are referred to him for payment, an acknowledgment or promise by him to pay will take the case out of the statute of limitations. {I) So, the admission of the wife, who was accustomed to conduct her husband's business, is sufficient to take the case out of the statute, in an action against the husband. (in) And, in an action against a husband, for goods supplied to his wife for her accommodation, while he occasionally visited her, a letter written by the wife, acknowledging (A)lLd. Raym. 389.422. Carth. 470 12 Sel. 457. 2 Bur. 1099. 5 Bur. 2630. Cowp. Mod. 224. 548. (i) See Tidd's Prac. 21. (x) 1 Barn. & Aid. 690. (k) Vide Roiocroft v. Lomas, 4 Maule & (I) 5 Esp. Rep. 145. (»i) 1 Holt, Ni. Pri. 591. (55) It has frequently been decided, that an acknowledgment of a debt barred by the stat- ute of limitations, takes the case out of the statute, and revives the original cause of action. This general rule is, undoubtedly, correct. But still, the question will always arise, whether the evidence be such as to admit of its application. This uncertainty arises, chiefly, from the diversity of circumstances usually attending cases of this description. It is obvious, therefore, that no precise rule of construction, which will govern in all cases, can be given : But, from a view of all the authorities upon this subject, the better opinion seems to be, that to take the case out of the statute, there must either be an express promise of payment ; or at least, an admission of a present existing debt: A simple acknowledgment of the justice of the original claim, will be deemed insufficient. Thus, in the case of Clementson v. Williams, 8 Cranch, 72., which was an action of assumpsit against two partners, the statute of limitations being pleaded in bar ; and the plaintiff's claim being presented to one of the partners, he stated that "the account was due, and that he supposed it had been paid by his partner, but had not paid it himself, and did not know of its being ever paid ;" it was held that the evi- dence was not sufficient to take the case out of the statute. See Wetzell v. Bussard, 1 1 Wheat. 309. Bell v. J\lmriso7i, 1 Peters, 351. Robhins v. Otis, 1 Pick. 368. Beitz v. Fuller, 1 M'Cord, 541. Lee v. Perry, 3 M'Cord, 552. Sands v. Gelston, 15 J. R. 511. Lawrence v. Hopkins, 13 J. R. 288. Mosher v. Hubbard, Id. 510. Fiskx.Needham, 11 Mas. Rep. 452. Coioanv. Magauran, Wallace, 66. Guier v. Pearce, 2 Browne, 35. Smith v. Freel, Addis. 291. Brown v. Camp- bell, 1 Serg. & R. 176. Miles v. Moodie, 3 Serg. & R. 211. Henxoocd v. Cheeseman, 3 Serg. &R. 500. Thompson v. Peter, 12 Wheat. 565. Jones v. Moore, 5 Binn. 573. Danforth v. Culver, 11 J. R. 146. Lord v. Harvey, 3 Conn. Rep. 370. If the acknowledgment of a debt barred by the statute, be conditional, a performance of the condition must be shown. Dean v. Pitts, 10 J. R. 35. See further, on this point, note (21) ante. It has been held, that *70 70 Statute of Limitation of Actions [Parti. the debt, within six years, was deemed admissible evidence for that purpose.(n) So, an acknowledgment by one of several drawers of a joint and several prom- issory note, will take the case out of the statute, as against any one of the other drawers, in a separate action on the note against him.(o) (56) But where one of two joint drawers of a bill of exchange becomes bankrupt, and the indorsees proved a debt under his commission beyond the amount of the bill, for goods sold, &c, and exhibited the bill as a security they then held for their debt, and afterwards received a dividend ; the Court held, in an action by the indorsees of the bill against the solvent partner, that the statute of limitations was a good defence, although the dividend had been paid by the assignees of the bankrupt partner within six years.(p) If a letter be written by a defendant to the plaintiff's attorney, on being serv- ed with a writ, couched in ambiguous terms, neither expressly admitting nor denying the debt, it should be left to the jury to consider whether it amounts to an acknowledgment of the debt.(?) (57) And if there be a mutual account of any sort between the plaintiff and defendant, for any item for which credit has been given within six years, that is evidence of an acknowledgment of there being such an open account between the parties, and of a promise to pay the balance, as to take the case out of the statute.(r) (58) So, if a defendant ad- mit the existence of a debt, which would otherwise be barred by the statute of limitations, but claim to be discharged by a written instrument, which does not amount to a legal discharge, he shall be bound by his admission, (s) And where the acceptor of a bill of exchange acknowledged his acceptance, and that he had been liable, but said that " he was not liable then because *it was out of date, and that he would not pay it, and that it was not in his power to pay it :" this was deemed sufficient to take the case out of the statute, (t) So, it is sufficient to prove, that upon a demand being made by a seaman on the owner of a ship, for wages which had accrued during an embargo, he said, "if others paid, he should do the same."(u) And a promise by a defendant in embarrass- • ed circumstances, to pay a debt by instalments, if time were given him, is suf- 00 1 Campb. 394. 00 6 Durnf. & East, 189. (o) Dou N - P - 14D - Sir W. Jones, 401. (a) 1 Holt, Ni. P n . 380. 10 -72 72 Statute of Limitations of Actions [Part I. of account. (/) (59) It has been supposed, that by the effect of the above exception, there can be no limitation to a merchant's open and unsettled ac- count : this opinion, however, appears erroneous ; for, if there is no item in the account, or an acknowledgment of the debt within six years, the statute will take effect ; but if the last item of the account is within six years, that preserves all the preceding items from the operation of the statute, (g) And from these decisions it should seem, that merchants' accounts do not stand upon any better ground, in regard to the statute, than those of others. It should also be observed, that the exception extends to all merchants, as well inland as to those trading beyond sea. (h) And the effect of the exception has also been extended to other tradesmen, and persons having mutual dealings. (i) But in all these cases, the accounts must be mutual, with reciprocal de- mands on each side, and not as in the case of a tradesman and his customer, in the common way of business, where the items of credit are all on one side only.(^) The statute of James does not begin to take effect till the cause of action is complete, and the party is capable of suing upon it ; (I) as in the case of a con- signee of goods for sale, no action lies for not accounting and returning the goods undisposed of until demand ; and, therefore, the statute does not begin to run until the time of demand, (m) So, the statute begins to operate only from the time when a bill of exchange or promissory note, Sic. is due, and not from the date, (n) It has been held, however, that notes payable on demand run from the date of the note, and not from the time of the demand. (o) So, where the cause of action is complete in the life time of the testator, the statute begins to run from that time, and not from the time of granting of the probate, (p) The second provision in the statute of James relates to the plaintiff's being beyond sea. (q) But by 4 & 5 Ann. c. 16. s. 19., the effect of this *provision is extended to the defendant's being beyond sea, at the time of the cause of ac- tion accruing. If therefore the defendant be abroad at the time of making the (/) Carth. 226. 2 Saund. 127. n. 6. (m) 1 Taunt. 572. (?) 6 T. R. 189. 192. (n) 1 H. Bl. 631. 5Barn. & Aid. 214. \h) Vid. 2 Saund. 127. c. 2. Bl. Rep. 723. (o) 1 Selw. Ni. Pri. c. 4. s. 6. (i) Peake, 127. (p) Willes' Rep. 27. (k) 2 Saund. 127. b. (q) Carth. 136. 226. 1 Show. 98. (0 Cro. Car. 139. 1 Lev. 43. (59) In the state of New-York, a similar construction has been given to the statute of James. Ramchander v. Hammond, 2 J. R. 200. See Stiles v. Donaldson, 2 Dall. £64. S. C. 2 Yeates, 105. It has been held, that the exception of the stat. 21 James 1. c. 16. s. 3. in favour of accounts between merchant and merchant, applies as well to actions of assumpsit as to actions of account. MandevUle v. Wilson, 5 Cranch, 15, 18. It extends to all accounts which concern the trade of merchandize. An account closed by the cessation of dealings between the parties is not an account stated ; and it is not necessary that any of the items should have been charged within the period oi'limitation. Id. S. P. Bass v. Bass, 6 Pick. 362. See further, Moore v. Jiluuro, 4 Rand. 438. (60) Upon this point, see Tucker wives, 6 Cowen, 193. Montgomery v. Hernandes, 12 Wheat. 129. Wilcox v. Plummets Exrs. 4 Peters, 172. Zeiglerv. Hunt, 1 M'Cord, 577. Herrell v. Kelley, 2 M'Cord. 426. Horsefield v. Cost, Addis. 153. Jones v. Connote ay, 4 Yates, 109. In an action for fraud, it is a sufficient reply to a plea of the statute of limitations, that the fraud was net dicovered until within six years. Homer v. Fish, 1 Pick. 435. *7a Chap. 5.] Upon Contracts and Promises. 73 contract, he need not be sued until six years after his first return into this coun- try.(r) The statute of limitations extends to persons absent in Scotland, (s) but not to those in Ireland ;(t) the latter being considered as beyond the sea, within the meaning of the above provision ; and foreigners living beyond the sea have the same advantage of the proviso as persons residing here.(t;) If the plaintiff be in England when the cause of action accrues, the time of limitation begins then to run, and a subsequent departure from the kingdom, and going beyond the seas, will not entitle the plaintiff, or his representative, to maintain an action after the expiration of the six years, (to) (r) 2 Saund. 121. a. b. («) 2 Bl. Rep. 723. (») 1 Bl. Rep. 286. (u>) 1 Wils. 134. (1) Per Holt, Ch. J. 1 Show. 91. THE LAW OF CONTRACTS AND PROMISES. PART THE SECOND. OF THE SUBJECT MATTER OF CO NTRACT9 AND PROMISES. CONTENTS. I. OF Contracts for the Sale and Delivery of Goods, &c, And of the statute of Frauds Relating thereto ; and also of Warranties by Sample or otherwise. II. OF Guaranties or Promises to be Answerable for the Debt or Default of Another ; And of the Statute of Frauds Re- lating thereto. III. OF Contracts For Services and Works. IV. ON Promises To Pay over Money Had and Received to the Use of Another ; And in what Cases an Action lies for the Recovery thereof. *V. ON Promises To Pay Money Lent and Advanced. *75 # T6 76 Of the Subject Matter of Contracts and Promises. VI. ON Promises To Pay for Money Paid, Laid out, and Ex- pended to and for the Use of Another. VII. ON Promises To Pay Money Due upon an Account stated. VIII. ON Promises To Pay Interest ; And in what Cases it is Recoverable. IX. OF Contracts To Accept or Transfer Public Stock. X. OF Agreements Not to carry on Trade within certain Limits. XL OF Agreements For the Sale or Relinquishment of Offices, &c. XII. OF Contracts To Marry ; And to Pay Money in Consider- ation of Marriage ; And of the Statute of Frauds upon the latter Contract. Shap. 1.] Of Contracts for the Sale of Goods, fyc 77 *PART THE SECOND CHAPTER I. OF CONTRACTS FOR THE SALE OF GOODS, &c. AS this chapter will necessarily embrace a great variety of subjects, I pro- pose to consider them in the following order ; viz. 1. OF THE GENERAL RULES OF LAW RELATING TO CONTRACTS FOR THE SALE AND DELIVERY OF GOODS ; AND OF GAMBLING SPEC- ULATIONS UNDER COLOUR OF A SALE OF GOODS. 2. OF THE STATUTE OF FRAUDS RELATING TO CONTRACTS FOR THE SALE OF GOODS. 3. OF BOUGHT AND SOLD NOTES MADE BY BROKERS. 4. OF ABSOLUTE AND CONDITIONAL SALES, OR PARTICULAR STIPU- LATIONS ANNEXED. 5. OF WARRANTIES BY SAMPLE AND OTHERWISE ; AND OF DECEIT IN THE SALE OF GOODS, &c. 6. OF SALE AND RETURN. 7. OF SALE AND EXCHANGE. 8. OF BARGAIN AND SALE OF GOODS WITHOUT DELIVERY. 9. OF SALES BY AUCTION. 10. OF THE DELIVERY UPON A SALE OF GOODS, EITHER TO THE VENDEE PERSONALLY, OR AT HIS PREMISES, OR TO A PARTICULAR CARRIER, WHARF, OR OTHER PLACE ; AND AT WHOSE RISK THE GOODS ARE WHILST IN THEIR TRANSIT, &c. 11. WHEN THE PROPERTY IN GOODS SOLD IS VESTED IN THE BUY- ER ; AND OF THE SELLER'S LIEN OR RIGHT TO STOP THEM IN TRANSITU. *12. OF THE SALE OF GOODS BY ASSIGNMENT OF A BILL OF LADING. 13. OF SALES IN MARKET OVERT. 14. OF A SALE AND DELIVERY OF GOODS EFFECTED BY MEANS OF FRAUD OR SWINDLING; AND OF THE SELLER'S RIGHT TO FOLLOW AND SEIZE THEM. 15. OF THE SALE OF SMUGGLED GOODS, OR OF OBSCENE AND LIBEL- LOUS PRINTS, &c. 16. OF CREDIT, AND THE TIME AND MODE OF PAYMENT ; AND IN WHAT CASES PAYMENT MAY BE RESISTED, OR THE CONTRACT PRICE REDUCED TO A QUANTUM VALEBANT. *77 *78 78 Of Contracts for the Sale of Goods, fyc. [Part II. 1. OF THE GENERAL RULES OF LAW RELATING TO CONTRACTS FOR THE SALE OF GOODS ; AND OF GAMBLING SPECULATIONS UNDER COLOUR OF A SALE. In Shepparcfs Touchstone, {a) the law is said to be, " that if a man by word of mouth sell to me his horse, or any other thing, and I give him or promise him nothing for it, this is void, and will not alter the property of the thing sold. But if one sell me a horse or any other thing for money, or any other valuable consideration, and the same thing is to be delivered to me at a day certain, and by our agreement a day is set for the payment of the money ; or all or part of the money is paid in hand ; or I give earnest-money (albeit it be but a penny) to the seller ; or I take the thing bought by agreement into my possession, where no money is paid, earnest given, or day set for the payment : in all these cases there is a good bargain and sale of the thing to alter the property there- of; and in the first case, I may have an action for the thing, and the seller for his money : in the second case, I may sue for and recover the thing bought : in the third, I may sue for the thing bought, and the seller for the residue of the money : in the fourth case, where earnest is given we may have reciprocal remedies one against another; and in the last case the seller may sue for his money." Again it is said, in Noy's Maxims, (b) "If I sell my horse for mon- ey, I may keep him until I am paid ; but I cannot have an action of debt until he be delivered; yet the property of the horse is by the bargain in the bargain- or or buyer : but if he do presently tender me my money, and I do refuse it, he may take the horse, or have an action of detainment. *And if the horse die in my stable between my bargain and the delivery, I may have an action of debt for my money ; because, by the bargain, the property was in the buyer." There is, however, this diversity, when the day of payment is limited, and when not: in the first case, the contract is good immediately, and an action lies upon it without payment; but in the other not so: as if a man buy of a draper twen- ty yards of cloth, the bargain is void if he do not pay the money at the price agreed upon immediately ; but if the day of payment be appointed by agree- ment of the parties, in that case one shall have his action for the money, and the other for not delivering the cloth, (c) So, if two are agreed upon the price, and the buyer departs without tendering the money, and comes the next day and tenders it, the other may refuse ; for he is not bound to wait, unless a day of payment was agreed between them, (d) And where A. having proposed to sell goods to B., gave him a certain time, at his request, to determine whe- ther he would buy them or not ; B. within the time determined to buy them, and gave notice thereof to A. ; yet A. was not liable to an action for not deliver- ing them ; for B. not being bound by the original contract, it was held there was no consideration to bind A. Thus, in the case of Cooke v. Oxley, (e) (a) Page 224. (6) Pa«c 88. See also 7 East Rep. 571. (c) Per curiam, Dv. 30. m *79 (d) Bro. Contract, pi. 26. 5 Vin. Abr. 515. (e) 3 Term Rep. 653. Chap. 1.] Of Contractu for the Sale of Goods, fyc. 79 which was an action of assumpsit ; the declaration stated, that on, &c. a cer- tain discourse was had, &c. concerning the buying of 266 hogsheads of tobacco; and in that discourse the defendant proposed to the plaintiff that the former should sell and deliver to the latter the said 266 hogsheads (at a certain price); whereupon the plaintiff desired the defendant to give him (the plaintiff) time to agree to or dissent from the proposal till the hour of four in the afternoon of that day, to which the defendant agreed ; and thereupon the defendant proposed to the plaintiff to sell and deliver the same upon the terms aforesaid, if the plaintiff would agree to purchase them upon the terms aforesaid, and would give notice thereof to the defendant before the hour of four in the afternoon of that day ; the plaintiff averred that he did agree to purchase the same upon the terms aforesaid, and did give notice thereof to the defendant before the hour of four in the afternoon of that day ; he also averred that he requested the defendant to deliver to him the said hogsheads, and offered to pay to the defendant the said price for the same, yet that the defendant, did not, &c. Upon this declaration the court determined, that the action could not be sustained, there being no con- sideration for the promise. Lord Kenyon, Ch. J. said, "Nothing can be clearer than that, at the time of entering into this contract, the engagement was all on one side ; *the other par- ty was not bound ; it was therefore nudum pactum.'''' And, Duller, Just, said : 44 It is impossible to support this declaration in any point of view. In order to sustain a promise there must be either a damage to the plaintiff, or an advantage to the defendant ; but here was neither, when the contract was first made. Then as to the subsequent time, the promise can only be supported on the ground of a new contract made at four o'clock ; but there is no pretence for that. It has been argued, that this must be taken to be a complete sale from the time when the condition was complied with : but it was not complied with; for it is not stated that the defendant did agree at four o'clock to the terms of the sale, or even that the goods were keep till that time." But, it is said,(/) if a man agree to sell goods for so much as A. shall name, though the contract is not complete till A. names the price, yet if the vendor sell the goods to another before A. names the price, and A. afterwards name it, an action upon the case lies for the non-delivery of the goods. So, if A. sell cloth to B. for 10s., and B. takes away the cloth against the will of A., in this case A. shall have an action of trespass against B. ; and if A. sell cloth to B. for 10s., in his election to make it a bargain or not, and, if he will, he may keep his cloth until the other pay him, and if A. say nothing, but doth suffer B. to take it away, he may make it a bargain if he will, and bring an action of debt for his money, (g) So, if I offer money for a thing in a market or fair, and the seller agree to take my offer, and whilst I am telling the money as fast as I can, he doth sell the thing to another ; or when I have bought it, we agree that he shall keep it until I can go home to my house to fetch the money ; in (J) Kit. 181. a. See also Com. Dig. tit. (g) Shep. Touch. 225. Agreement, A. 4. 11 *80 80 Of the Statute of Frauds upon [Part II, both these eases, especially in the first, the bargains are good, so as the seller may not sell them afterwards to another ; and upon the payment, or tender and refusal of the money agreed upon, I may take and recover the things. (/*) If goods are marked, or have the seal of the buyer upon them, whilst they are in the possession of the seller, the property is said to be vested in the buyer immediately, and remain in the possession of the seller only as a security for the price. (t) So it is said, (k) that if one sell me any tiling by the tod, pound, bush- el, yard, or ell ; it shall be reckoned according to the custom of the country or place where they are sold, and not according to the statute measures of other countries. But corn, by statute, (/) must now be sold throughout England by the Winchester bushel, and not otherwise. If one sell me twenty barrels of ale, or ten bottles of wine ; by these bargains I shall not have the barrels or bottles with the ale or the wine. *But upon the sale of a hogshead of wine, it seems by this bargain, that the buyer shall have the hogshead with the wine.(?«) Of Gambling Speculations, under Colour of a Sale.] — Tt has of late been the practice in the commercial world for persons to speculate upon the probable prices of paticular articles of trade at a future day, and, like stock- jobbing transactions, they have entered into time bargains, under the colour of a contract for the sale of goods, at a specified price payable on a particular day, without any intention either to buy or sell, but merely making it a gambling speculation ; and on the arrival of the day mentioned in the contract, the par- ties settle and pay the difference between the market price of the day, and the fixed price mentioned in the pretended contract of sale. This species of specula- tion has, however, been recently brought before the courts of law, and we have seen, in a former chapter,(?i) that all such contracts have been declared to be illegal, 2. OF THE STATUTE OF FRAUDS RELATING TO CONTRACTS FOR THE SALE OF GOODS. Before the passing of the statute 29 Car. 2. c.3., contracts and agreements w f ere commonly entered into verbally, without any writing; but this giving rise, as appears by the preamble of that act, to many fraudulent practices, which were endeavoured to be upheld by perjury, and subornation of perju- ry, the legislature deemed it expedient, that certain contracts should be either reduced into writing and signed, or that some specific act should be done by the party to be charged with the contract; and accordingly, by the 17th clause of the above statute, it is enacted, " that from and after the 24th June 1677, no contract for the sale of any goods, wares, and merchandizes, for the price of 10/. sterling, or upwards, shall be allowed to be good, except the buyer shall (ii) Ibid. See also Greaves v. tflshlm, 3 Campb. 4264r (t) Skin. Rep. 647. Holt's Rep. 8. (k Sfiep. Toiwh. 225. *81 (I) 22 Car. 2. c. 8. 6. 2. ; and sec 4 T. R. 750. (m) Shep. Touch. 225. (*) Ante, 58. Chap. 1 ] Contracts for the Sale of Goods, fyc. 81 accept part of the- goods so sold, and actually receive the same, or give some- thing in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the par- ties to be charged by such contract, or their agents thereunto lawfully author- ized." As various questions have arisen upon different parts of this clause of the statute ; and as numerous cases thereon are reported in our law books, it will be necessary to consider those parts according to the order in which they stand in the clause itself; and, 1st, of the contract and subject mat- ter of it ; 2dly, as to the amount of the price of the goods ; 3dly, of the acceptance and receipt of the goods ; 4thly, of earnest given to bind the bargain, or in part payment ; and, lastly, of the note *or memorandum signed by the parties or their agents thereunto lawfully authorized. 1. Ok the Contract, and the Subject Matter thereof.] — Upon the word contract, a distinction was formerly taken between executory and execu- ted contracts ; the former having been held not to be within the statute but only the latter. Thus, in the case of Towers v. Sir John Osborne,{in) where the defendant ordered a chariot to be built ; but when it was made he refused to take it ; and in an action brought for the value, it was contended that the plaintiff should prove something given in earnest, or a note in writing, since there was no delivery. But the Chief Justice ruled this not to be a case within the statute of frauds, which relates only to contracts for the actual sale of goods, where the buyer is immediately answerable, without time given him by special agreement ; and the seller is to deliver the goods immediately. And in another case of Clayton v. Andrews, (n) where the defendant agreed to deliver a cer- tain quantity of wheat to the plaintiff within three weeks, or a month, from the said agreement, at a certain rate to be paid on delivery; which wheat was un- derstood by both parties, at the time of making the agreement, to be unthrash- ed. No part of the wheat so sold was delivered ; nor any memorandum there- of made in writing, nor any earnest given. And the question for the opinion of the Court was, whether this agreement was within the statute of frauds. Lord Mansfield held, upon the authority of the case just cited, that it was not within the statute. And Yates Just, said, " The seventeenth clause of the statute related only to executed contracts. Here wheat was sold to be delivered at a. future time. It was unthrashed at the time when the contract was made ; threfore it could not be delivered at that time. But in the case of Rondeau v. Wyatt,{p) this distinction was denied and overruled ; though the decisions were supported upon other grounds. The action was brought for the non-per- formance of a special contract against the defendant, who was one of the proprietors of the Albion Mill, had entered into a verbal agreement to sell and deliver 3000 sacks of flour to the plaintiff to be put in sacks, which the plaintiff 0") Stra. 506 - (o) 2 H. Bl. 63. Sec also Cooper v. Elstm, M 4 Bur. 2101. Sea also 1 H. Bl. 20. post, 94. where the determination of this case g - *' wan fully assented to by all tiie judge* oftUc Court of King's Beneh. * £2 82 Of the Statute of Frauds upon [Part II. was to send to the mill, and shipped on board vessels to be provided by him in the river, on an express condition that the flour should be exported to foreign parte, from some port which the plaintiff was to open, and should not meet the defendant and the company again in the home market. In order to carry the scheme of exportation into effect, the plaintiff sent down to Shoreham in Sussex a large quantity of corn and flour merely to reduce, by collusion and a fictitious sale, the market-price to the level prescribed by act of parliament. (p) *But this intended trick being discovered by government, the exportation was prevented, as the price was then very high, and an apprehension of a scarcity in this country prevailed. As the plaintiff, therefore, could not legally comply with the condition contained in the contract, the defendant refused to deliver the flour ; and for such refusal the present action was brought, in which the plaintiff obtained a verdict, contrary to the opinion of Lord Loughborough , before whom the cause was tried, who thought that on grounds of public policy, but chiefly because the contract seemed to him to be within the statute of frauds, the plaintiff was not entitled to recover. A rule was therefore obtained calling upon the plaintiff to shew cause, why the verdict should not be set aside, and a non-suit entered. And, after the case had been fully argued at the bar, and the Court had taken time to consider, Lord Loughborough pronounced the judgment of the Court, that the objection made on that statute is well grounded, and therefore that the plaintiff ought to be non-suited. His Lordship observed, " that it had been said in the argument, that the statute does not extend to cases of executory contracts. Now it is singular that an idea could ever prevail that this section of the statute was only applicable to cases wliere the bargain was immediate, for it seems plain from the words made use of, that it was meant to regulate executory, as well as other contracts." The words are " No con- tract for the sale of any goods, &c." And, indeed, it seems that this provision of the statute would not be of much use, unless it were to extend to executory contracts ; for it is from bargains to be completed at a future period, that the uncertainty and confusion will probably arise, which the statute was designed to prevent.(61) The case of Towers v. Osborne was plainly out of the statute, not because it was an executory contract, as it has been said, but because it was for work and labour to be done, and materials and other necessary things to be found, which is different from a mere contract of sale ; to which species of contract alone the statute is applicable. And in Clayton v. Andrews, {q) which was on an agreement to deliver corn at a future day, there was also some work to be performed, for it was necessary that the corn should be thrashed before the delivery. This, perhaps, may seem to be a very nice distinction, but still the work to be performed by thrashing, made, though in a small degree, a part of the contract." (?) 13 Geo. 3. c. 45. s. 5. (g) Ante, 82. (61) It is now well settled, that the statute applies equally to executory and executed eontraets. Bennett v. Hall, 10 J. R. 364. Crookshank t. Burrell, 18 J. R. 58. Sewall v. Fitch, 8 Cowen, 215. •83 Chap. 1.] Contracts for the Sale of Goods, fyc 83 In conformity to those decisions, it has been subsequently determined, that where the thing contracted for at the time of sale is not in esse, or is incapable of delivery and of part acceptance, such a contract is not within the statute of frauds,(61 a.) Thus, in the case of Groves v. Buck,(r) where reappeared, that a contract had been made for the sale of a quantity of oak pins, which, at the time of the sale, were not cut out of the slabs ; Lord Ellenborough Ch. J. held, that such a contract was not within the statute, upon the ground that " the subject matter of the contract, at the time of making it, did not exist in rerum nalura ; and it was incapable of delivery and of part acceptance ; and where that is the case, the contract has been considered as not within the satute of frauds." But where the thing contracted for is in a state of delivery at the time of sale, though at a considerable distance from the residence of the buyer ; such a contract is within the statute, even though it be part of the contract, that the vendor shall deliver it at his own charge, in consideration of an additional price having been agreed upon between the parties, (s) So, it has been determined since the case of Rondeau v. Wyatt, that a contract for the sale of flour to be prepared by the sellers, who were millers, and to be afterwards shipped to the buyer, is within the statute ; and if not in writing is void. And that it is not a mixed contract for the carriage and sale. And Mr. Justice Bayley in this case (t) observed, " that the nearest case to this, is Clayton v. Andrews. But that decision was, as it seems to me, corrected by the case of Rondeau v. Wyatt. This was substantively a contract for the sale of flour, and it seems to me immaterial, whether the flour was at the time ground or not. The question is, whether this was a contract for goods, or for work and labour, and materials found ?(62) I think it was the former ; and if so, it falls within the statute of frauds." Upon the subject matter of the contract, it has frequently been made a question whether shares of a company, or public stock, are comprehended under the words goods, wares, and merchandizes. But the point does not appear to have been finally settled ; for in the case of Pickering v. Appleby, (u) which was an action of assumpsit for 580/. for ten shares in the stock of the governors and company of the copper mines in England, transferred and sold by the plaintiff to the defendant. There was no agree- (r) 3 Maule and Sel. 178. (t) Vide Garbutt v. Watson, 5 B. & A. (s) Aslty v. Emery. 4 Maule & Sel. 262. 613. (u) Com. Rep. 354. (61. a.) In the case of Sewall v. Fitch, 8 Cowen, 215, which was an action for the non- delivery of 300 casks of cut nails ; a part of which were on hand at the time of the contract, and the rest were, thereafter, to be manufactured ; it was held, that the contract was not within the statute of frauds. (62) A contract to sell the improvements made on land, is not within the statute of frauds. Improvements on land, is only another name for work and labor bestowed on land ; and a parol promise to pay for 6uch services has never been held to be within the statute. Lower v. Winters, 7 Cowen, 263. See Frear v. Hardenbergh, 5 J. R. 275. Per Spencer, J. and note (a) 277. Benedict v. Beebe, 11J. R. 145. Crookshank v. Burrell, 18 J. M. 08. *84 84 Of the Statute of Frauds upon [Part II. ment or memorandum in writing of the contract, or any earnest paid. At the trial before King, Ch. J., it was doubted whether the shares in the stock of this company were within the purview and intent of the statute of frauds ; and therefore it was made a case, and argued before the court of Common Pleas ; and afterwards at Serjeant's Inn before all the judges of England. They, however, being divided in opinion, the question was adjourned. (v) But, in the case of Mussell v. Cooke, (w) where the plaintiff had agreed witli one Green, the defendant's broker, for 5000/. South-sea stock, 187/. per cent. to be delivered about 10 days after ; and on the day appointed, the plaintiff attended at the transfer office all day, but the defendant did not come, and the stock *having in the mean time considerably risen, the defendant refused to transfer it ; the plea of the statute was held by the Lord Chan- cellor, Macclesfield, to be good. In a subsequent case, however, of Coll v. Nctterville, (y) which turned not only upon the question whether stock came within the description of goods, &c. but also upon the circumstance of something having been given as earnest. It was a bill for a specific performance of an agreement for transferring some York Buildings stock, stating that the defendant had agreed to transfer it to the plaintiff o-i a particular day therein mentioned, on the plaintiff's paying the mon- ey, and that the plaintiff agreed to pay so much per cent, and to accept the transfer, and did thereupon pay to the defendant 6d. earnest. To which bill the statute of frauds was pleaded, and the defendant denied that he received or accepted the 6d. as earnest, and alleged that no part of the stock was delivered or note given ; whereupon it was argued, on one side, that the York Buildings, and other stocks, were within the words and meaning of the statute of frauds, so as to require either part of the thing agreed to be sold to be delivered, or a note in writing, or money to be paid as earnest; for, first, that this clause of the statute expressly mentions contracts for the sale of any goods, or merchandizes, and that the word goods was of a very extensive signification. Secondly, that if one having stock should commit felony, this without question would be a forfeiture of his stock, a forfeiture to those who should have a grant of bonafel- omun, so that stock was within the words bona, or goods. Thirdly, at least it was within the word merchandize, for every vendible thing was merchandize ; now stock was a thing vendible, and in the year 1720, was the most usual merchandize which people dealt in. On the other side it was contended, that whereas the statute enacts, that no contracts should be good for the sale of goods, wares, and merchandizes, of 10/. price, unless part of the goods be delivered, or earnest paid, or a note in writing ; this showed that such goods were intended as were capable of an actual delivery, something that was corporeal, and not stock which was incorporeal, nor was there any such thing as York Buildings stock at that time. The Lord Chancellor King said, " This question was before all the judges (») See 2 P. Wms. 308. (y) 2 P. Wms. 507. (ic) Prec. in Ch. 533. *85 Chap, t.] Contracts for the Sale of Goods. 85 of England, who were equally divided upon it, six against six ; and therefore it is a point too difficult for me to determine upon a demurrer." His lordship, however, said, that stock did not seem to be goods, wares, or merchandizes within the intent of the 17th clause. (z) It has been determined, that standing crops, not severed from the *land, but ripe and fit to be gathered, when sold upon the terms of their being taken immediately, are to be deemed goods within the meaning of this part of the clause; for the advantage which they may derive from the soil during the short interval between the contract and re- moval, is merely accidental, and constitutes no part of the considera- tion, (a) (63) 2. As to the Amount of the Price of the Goods.] — Upon the words, " Of the price of 10/. sterling or upwards," it has been held, that where several articles were ordered to the amount of 70/., but no single article was of the price of 10/., it is to be deemed one entire contract, and within this elause of the statute. Thus, in the case of Baldey v. Parker, (hi) which was an action for goods sold and delivered ; at the trial, it appeared in evidence that the plaintiffs were linen-drapers, and the defendant came to their shop and bargained for various articles. A separate price was agreed upon for each, and no one article was of the value of 10/. Some were measured in his pres- ence ; some he marked with a pencil ; others he assisted in cutting from a lar- ger bulk. He then desired an account of the whole to be sent to his house, and went away. A bill of parcels was accordingly made out and sent by a shopman. The amount of the goods was 70/. The goods were afterwards sent to the defendant's house, and he refused to accept them. The plaintiffs were nonsuited ; and the Court, after argument, determined that the nonsuit was right. And Abbot Ch. J. said, " The first question is, whether this was one entire contract for the sale of all the goods ? By holding that it was not, we should entirely defeat the object of the statute ; for then persons intending to buy many articles at one time, amounting in the whole to a large price, might withdraw the case from the operation of the statute, by making a sep- arate bargain for each article. Looking at the whole transaction, I am of opinion that the parties must be considered to have made one entire contract for the whole of the articles. The plaintiffs, therefore, cannot maintain this action, unless they can show that the case is within the exception of the 17th section, the words of which are peculiar ; ' except the buyer shall accept part of the goods so sold, and actually receive the same.' It would be difficult to find words more distinctly denoting an actual transfer of the article from (s) Vide 5 Burr, 2589. & 1 East Rep. 1. (a) Parker x. Mainland, 11 East Rep. 362. where it is said, that public stock is not mo- Warwick v. Bruce, 2 M. & S. 205. ney, but a new species of property. (6) 2 Barn. & Cres. 37. (63) A. sowed the land of C, with wheat, on shares ; and afterwards, assigned all his interest in the growing crop ; this is a complete sale or transfer of his property in the wheat, to the assignee, who only can bring trespass for cutting and carrying it away. Carter v. Jarvis, 9 J. R. 143. As to the sale ol standing trees, see Gardner Manu factoring Ce.v. Heald, 5 Greenl. 3S1. * *8fl 86 Of the Statute of Frauds upon [Part II. the seller, and an actual taking possession of it by the buyer. If we held that such a transfer and acceptance were complete in this case, it would seem to follow as a necessary consequence, that the vendee might maintain trover with- out paying for the goods, and leave the vendor to this action for the price. Such a doctrine would be highly injurious to trade, and it is satisfactory to find that the law warrants us in saying that this transaction had no such eflect." *3. Of the Acceptance and Receipt of the Goods.] — (63 a) If a con- tract for the sale of goods is not reduced into writing, then there must be either an acceptance and receipt of the goods in whole or in part, or earnest given, or part payment. The contract should be complete, and there must be not only an acceptance, but a change of possession. An actual delivery, however, is not in all cases necessary ; for the thing contracted to be sold may be virtually de- livered ; and such virtual delivery will be equally effectual to supersede the necessity of writing and signing ; as, for instance, if the goods sold are pon- derous, and not capable of actual delivery ; but the buyer so far accepts them as to exercise a right over them, either by disposing of the goods, or by giving orders and directions respecting them as owner ; these acts may countervail the actual delivery, and vest the property in the buyer, without any written con- tract or earnest paid. Thus, in the case of Searle and Others v. Keeves,{c) which was an action of assumpsit for the non-delivery of rice ; and at the trial it was proved, that on the 26th of September one of the plaintiffs had been at the house of the defendant, who told him that he had a quantity of rice to sell ; but there was no evidence of any contract made at that time ; the plaintiffs, however, produced an order on Btnnet and Co., the warehousemen, to deliver to them 20 barrels of rice, which was signed by Keeves ; and it was also pro- ved that Keeves had told them that he had sold 20 barrels of rice to Mr. Searle at 17^. per hundred, and that he was a fool for selling it so soon, as the price of rice had advanced. The rice not being then taken away, Keeves, on the 2d of October, countermanded the delivery, in consequence of which Bennet and Co. refused to deliver the rice to the plaintiffs, who sent for it on the 10th of October following. The counsel for the defendant contended, that as to this count the plaintiffs ought to be nonsuited : they said that the statute of frauds, in all cases of sales of goods, required a note in writing specifying, the terms of the contract ; and being meant to guard against fraud in contracts, made it necessary to specify particularly what the terms of the sale were : in this case there was no specification of the terms ; the only evidence was, the order for the delivery by the defendant, which did not specify any thing as to the price so that it was not a sufficient note in writing under the statute. But Eyre Ch. J. said, " The statute of frauds does not attach where there has been earnest or a delivery of part of the things sold ; I think there has been in this case a delivery (c) 2 Esp. Rep. 598. See also Hinde v. Whitehcvse, post, 94. (63 a) Sec post, notes 83, 84, 88. '87 Chap. I.J Contracts for the Sale of Goods. 87 of the whole* Keeves, the defendant, gave an order for the delivery upon Bennet and Co., in whose possession the rice then was ; this satisfies the stat- ute, and the plaintiffs are entitled to recover." And in a subsequent case (d) it has been held, that it is not necessary # there should be an actual transfer made in the wharfinger or warehouseman's books ; but the lodging of the delivery order is deemed sufficient. So, in the case of Chaplin v. Rogers, (e) which was an action for goods sold and delivered ; and the case proved was, that the parties being together in the plaintiff's farm-yard, the defendant, after some objections and doubts upon the quality of a stack of hay (particularly the inside part) then standing in the yard, agreed to take it at 2s. 6d. per hundred weight. Soon after he sent a farmer to look at it, whose opinion was unfavourable. But about two months after- wards another farmer, of the name of Loft, agreed with the defendant for the purchase of some of this hay, still standing untouched in the plaintiff's yard, and the defendant told Loft to go there and ask what condition it was in, say- ing he had only agreed for it, if it were good. The plaintiff having informed Loft it was in a good state, he agreed to give the defendant '3s. 9d. per hun- dred weight for it, the defendant having told him that he had agreed to give the plaintiff 3s. 6d. for it. Loft thereupon brought away 36 hundred weight ; but this latter fact was without the knowledge and against the direction of the de- fendant. At the trial, the learned judge left it to the jury to decide whether, un- der the circumstances, there had been an acceptance by the defendant ; and they found that there had been, and gave 501. damages, being the value of the hay at the price agreed for. A rule nisi was obtained, calling on the plaintiff to show cause why the verdict should not be set aside, and a new trial had, on the grounds that the learned judge had left that as a question of fact to the jury which he himself ought to have decided, as an objection in point of law arising on the statute of frauds ; and because the evidence did not warrant the ver- dict. But the Court decided that there was sufficient evidence of a delivery to, and acceptance by the defendant to leave to the jury ; and therefore discharged the rule. And Lord Kenyon Ch. J. said, " It is of great consequence to pre- serve unimpaired the several provisions of the statute of frauds, which is one of the wisest laws in our statute book. My opinion will not infringe upon it ; for here the report states that the question was specifically left to the jury whether or not there were an acceptance of the hay by the defendant, and they have found that there was, which puts an end to any question of law. I do not mean to disturb the settled construction of the statute, that in order to take a contract for the sale of goods of this value out of it, there must be either a part-deliv- ery of the thing, or a part-payment of the consideration, or the agreement must be reduced to writing in the manner therein specified. But I am not satisfied in this case that the jury have not done rightly in finding the fact of a delivery: where *goods are ponderous, and incapable, as here, of being handed over (d) Harman v. .fadersm, 2 Campb. 243. (e) 1 East, 192. 12 # 88 *89 89 Of the Statute of Frauds upon [Part II. from one to another, there need not be an actual delivery ; but it may be done by that which is tantamount, such as the delivery of the key of a warehouse in which the goods are lodged, or by delivery of other indicia of property. Now here the defendant dealt with this commodity afterwards as if it were in his actual possession, by selling part of it to another person." But it seems doubtful, whether, in a case where the thing sold is capable of immediate delivery, as a horse, the circumstances of striking the bargain, ac- cording to a vulgar custom in Yorkshire, by the buyer passing the edge of a shilling over the seller's hand, and returning it into his own pocket, and a ver- bal admission of the bargain, coupled with the buyer's offering it for sale, is sufficient to satisfy the statute, without either a delivery or payment of the ear- nest money.(/) And in the case of Anderson v. Scot, (g) which was an action for the non-de- livery of wines sold to the defendant, it appeared in evidence that the wines, at the time of sale, were lying in the cellars of the vendor, and the buyer se- lected particular pipes, and ordered the spills or pegs, by which the wine is tasted, to be cut off, and his initials to be put upon the pipes, which was accord- ingly done ; the buyer also took the guage-numbers of each pipe. Lord El- lenborough Ch. J. held this to be a sufficient acceptance and delivery to satis- fy the statute. So, in Hodgson v. Le Brett, (h) where a quantity of linen and other articles had deen purchased at a shop, and the buyer wrote her name upon the linen only, the same learned judge held, that the statute was satisfied as to the linen, but not as to the other articles. And in Elmore v. Stone, (i) where the purchaser of two horses, having neither servant nor stable, told the seller, who kept a livery-stable, that he must keep them for him ; and accordingly the seller removed them out of his sale-stable into another stable ; it was held a sufficient acceptance and deliv- ery within the statute. But in Carter v. Toussaint, (k) where a race-hoise was sold by a verbal contract, but no time was fixed for the payment of the price, and it was agreed that the horse should be kept by the plaintiffs for 20 days without any charge. At the expiration of the 20 days the horse was, by the direction of the defendant, taken by a servant of the plaintiffs to Kimpton Park, for the purpose of being turned out to grass there ; and it was there en- tered in one of the plaintiffs' names at the request of the defendant, who was anxious that it might not be known that he kept a race-horse. The defendant, however, afterwards refused to take the horse. The Court determined, that there was no acceptance of the horse to satisfy the words of the statute. And *Holroyd Just, observed, " Here, there was no change of possession, as in the case of Elmore v. Stone ; and the case would be different if the horse had been entered at the park in the name of the defendant." ( f) Bltnkinsop v. Clayton, 1 Mo. Rep. 328. (h) 1 Campb. Rep. 233. 7 Taunt. S. C. (t) 1 Taunt. 458. (?) 1 Campb. Rep. 235. r. (fc) 5 Barn. & Aid. 955. *90 Chap. 1.] Contracts J or the Sale of Goods. 90 So, in the case of Tempest v. Fitzgerald, (I) where a horse had been pur- chased for ready money, and the buyer requested the seller to keep it in his stables for a certain time, and gave directions as to its treatment. The horse, however, died before the buyer had either paid the price, or taken it away. The Court held, that there was no acceptance within the words of the statute. And Abbott Ch. J. said, " The statute of frauds was made for wise and ben- eficial purposes, and ought to receive such a construction as will best accord with the plain and obvious meaning of the legislature. The word accepted imports not merely that there should be a delivery by the seller, but that each party should do something by which the bargain should be bound. I do not mean, however, to say, that if the buyer were to take away the goods with- out the assent of the seller, that would not be sufficient to bind him. In this case, payment of the price was to be an act concurrent with the delivery of the horse ; at any rate there is nothing to show that either party understood that the one was to precede the other. The defendant, therefore, had no right of property in the horse, until the price was paid ; he could not then exercise any right of ownership. If he had at that time rode away with the horse, the plaintiff might have maintained trover." Holroyd Just, said, " That the object of the statute of frauds was to remove all doubts as to the completion of the bargain ; and it therefore requires some clear and unequivocal acts to be done in order to show that the thing had ceased to be in fieri. Those acts are, either that the buyer shall accept part of the goods sold, and receive the same, or give something in earnest or in part payment, or that the contract be reduced to writing. These are all acts that clearly and unequivocally show that the bargain is executed." So, in the case of Howe v. P aimer, {m) where the defendant had verbally agreed with an agent of the plaintiff for the purchase of twelve bushels of tares, (then constituting a part of a larger quantity in the plaintiffs possession,) which were to remain in the vendor's possession till called for ; and the plain- tiff's agent, on his return home, had measured the twelve bushels, and set them apart for the vendee ; the Court determined, that this did not amount to an ac- ceptance within the statute ; and they distinguished this case from that of El- more v. Stone, because in that case an expence had been incurred by the sel- ler on account of the buyer, and by his direction ; and that was considered •evidence of acceptance on the part of the buyer. And Mr. Justice Bayley, in referring to the case of Elmore and Stone, said, " That case goes as far as any case ought to go ; and I think we ought not to go one step beyond it ; and I must say, that I doubt the authority of that decision." So, in the case of Price v. Lea, (n) where a contract was made for the sale of two different articles, one of which was agreed upon as to quantity, quality, and price ; but for the other the buyer offered a price, which the traveller of the seller did not think himself warranted in taking, but said he would write to his (I) 3 Barn. & Aid. 680. Emery, ante, 84. (m) 3 Barn. & Aid. 321. See alio AsUy v. (n) 1 Barn. & Cres. 156. *91 91 Of the Statute of Frauds upon [Part 11. principal, and if he (the buyer) did not receive a letter in one or two days, re- fusing to execute the order, he might conclude that his offer was accepted. The traveller did not write, but sent both articles. The buyer accepted and tender- ed the price of the first article, but refused to accept or pay for the other. And in action brought for the price of both articles, the defendant pleaded a tender of the price of the first article, and non-assumpsit to the other. The Court deter- mined, that the buyer was not liable for the last parcel. And Holroyd Just, said, M A contract for the first article was made between the defendant and the trav- eller ; but the agreement for the residue cannot be considered as complete until the time allowed to the plaintiffs for deliberation had expired ; there was not then one entire contract for both the articles, so as to make the acceptance of one the acceptance of the whole." It is now settled, that a delivery without an ultimate acceptance, and such as completely affirms the contract, is not sufficient to satisfy the words ofthe statute. This was determined in the case of Kent v. Huskinson, (o) which was an ac- tion of assumpsit for goods sold and delivered, tried before Lord Alvanlcy, Ch. J. The subject of the action was a bale of sponge sent by the plaintiff, a whole- sale dealer in that article, residing in London, to the defendant, a retail dealer residing in Staffordshire. Some short time before the sponge was sent by the plaintiff, he had been at the place where the defendant resided, and had received from him a verbal order, under which he had acted in sending the sponge, and the price charged was 11 s. per pound, amounting altogether to 751. Soon after the sponge was sent, the defendant wrote the following letter to the plaintiff: ♦'After receiving a letter from your house in town, stating the bale of sponge was sent by your direction, I called on a friend or two who are competent judg- es ofthe article, and asked them to say, according to the present price of sponge, what it was worth ; the answer was, not more than six shillings per pound ; have therefore returned it to you by the same conveyance it was forwarded by to this place. In future will select what sponge I may want personally, other- wise will appoint some confidential friend for that purpose." The plaintiff's son being at the defendant's house soon after the sponge was returned, was told by him that he had resolved not to keep the article, because it was not so good as he had expected. It was objected for the defendant, that inasmuch as this was a contract for the sale of goods of more than ten pounds value, the case fell within the 17th section ofthe statute of frauds, for want of a note or memoran- dum in writing, and consequently the plaintiff could not recover. His lordship being of this opinion, nonsuited the plaintiff. A motion, however, was after- wards made for a rule to show cause why the nonsuit should not be set aside. But the Court were clearly of opinion, that the case was within the statute, and therefore refused the rule. And his lordship said, " How is any judgment to be formed as to the nature of the contract between these parties ? Possibly the order was for the best, possibly for the second best sponge, or sponge of some (o) 3 Bos. &Pul. 233. k 93 Chap. 1.] Contracts for the Sale of Goods. 92 peculiar quality ; all which circumstances are left in a state of uncertainty. It was this very uncertainty, and the frauds to which it might lead, that the statute had in contemplation, and meant to guard against. The only affirmance of any contract to be collected from the evidence is an affirmance of some sort of order for some sort of sponge ; and it appears that the moment the article reached the defendant and was examined, he sent it back to the plaintiff, saying it was not that sort of sponge which he wanted and had ordered. The defendant's letter cannot, as it appears to me, be construed into any thing like an acceptance, so as to bring this case within the exception which has been relied on." And Heath Just, said, "According to the words of the statute, the exception does not ap- ply, unless the vendee both receive and accept. Now that acceptance I cannot consider to be any other than the ultimate acceptance, and such as completely affirms the contract. What the nature of this order was, or under what circum- stance it was given, was not proved. Possibly the sponge was sent down upon speculation only." A parol dispensation of the written terms as to the periods of delivery, is not affected by the statute, where the original contract was made conformably toit.(63 6.) This was determined in the ease of Cuff v. Pen7i,{p) where it ap- peared, that the defendant had agreed, by a written contract, to purchase of the plaintiff 300 hogs of bacon, to be delivered at fixed times, and in specified quantities ; and after part of the bacon had been delivered to the defendant, he requested the plaintiff, as the sale was dull, not to press the delivery of the residue, to which the plaintiff assented ; and on the defendant afterwards refus- ing to accept the rest of the bacon, the plaintiff brought an action for the non- acceptance ; and it was objected that the action would not lie ; for that the al- teration of the agreement could neither vary the contract, nor substitute a new one in its place, as it would be void by the statute of frauds ; there being neith- er a part acceptance, nor a part payment under it. The Court, however, held it to be a mere parol dispensation of the terms of the original contract in res- pect to the times of the delivery ; and therefore that it was not affected by the statute of frauds. The question of acceptance and receipt of the goods, is a mixed question of law and of fact; and must, like all other cases, as far as regards the fact, be left to the jury, (q) If goods are ordered verbally by a trader in the country, of a merchant in London, the delivery of them by the vendor to a carrier is a sufficient delivery (p) 1 Mau. & Sel. 21. (q) Blenkinsop v. Clayton, 1 Mo. 328. (63 b.) See Keating v. Price, 1 J. C. 22. The time for performing the condition of a bond may be enlarged, or the farther performance of it, may be waived by parol. Fleming v. Gilbert, 3 J. R. 528. So, an agreement, under seal, for work and labor, may be releasee? by parol. Lattimore v. Harsden, 14 J. R. 330. But in those cases, where parol evidence has been admitted of an agreement to enlarge the time, or dispense with performance, such agreement has been subsequent to the original contract, and admitted the effect of it ; but the evidence would be inadmissible to shew the original agreement to be different from what it plainly imports on its face. Thompson v. Ketcham, 8 J. R. 146. 2d edit. ♦93 03 Of the Statute of Frauds upon [Part II. to satisfy the statute, where the buyer has been accustomed to receive goods from the vendor by the same conveyance, (r) But, in the case of Hanson v. Armitage, (s) which was an action for the price of two chests of tea. At the trial before Abbott Ch. J., it appeared in evidence, that the plaintiffs, tea deal- ers in London, had been in the habit of shipping teas to the defendant, who was a grocer, resident at Barnsley in Yorkshire. The usual course was to deliver the tea at the wharf of one Staunton in London, to be forwarded by the first ship ; and several parcels of tea, sent in this manner, had been paid for by the defendant. On the 3d June 1820, the plaintiffs delivered at Staun- ton's wharf, two chests of tea to be forwarded to the defendant in the usual manner. The vessel in which this tea was shipped was lost on her voyage. The plaintiffs, on the 10th of June, transmitted by post to the defendant an invoice of the tea, and on the 13th the defendant returned the same by post, and stated " that he had nothing to do with it, as he had heard of the loss of the ship before the invoice arrived, and that he would not take to the account." His lordship directed the jury that they might fairly presume that the defendant had given a parol order for the tea, and stated that he would reserve the question for the opinion of the Court, whether the delivery of the tea, and the acceptance of it by the wharfinger, for the purpose of transmitting it by the usual conveyance, was to be deemed an acceptance by the buyer within the meaning of the 29 Car. 2. c. 3. s. 17. They accordingly found a verdict for the plaintiffs. And after argument, the Chief Justice said, " The Court are of opinion, that the acceptance in this case, not being by the party himself, was not sufficient : and he referred to the case of Howe v. Palmer, (r) where it was held, that there could be no actual acceptance, so long as the buyer continued to have a right to object either to the quantum or quality of the goods." *Upon a sale by sample, it has been determined, that if the delivery of a sam- ple of goods from the bulk be considered and received as part of the bulk bought, this is a sufficient acceptance within the meaning of the statute. But unless it is so stipulated, it is not to be deemed as part of the bulk. Thus, in the case of Hinde v. Waterhoase, (u) which was an action upon a sale of sugar by public auctien. The sugar was sold in hogsheads, and out of each hogshead was taken half a pound as a sample ; but such sample, by the terms and condi- tions of sale, was so far treated as a part of the entire bulk delivered, that it was considered in the original weighing as constituting a part of the bulk actually weighed out to the buyer, and allowed for specifically, if he should chuse to have the commodity reweighed. Lord Ellenborough Ch. J. said, " I cannot but consider the sample as part of the goods sold under the terms of the sale, accepted and actually received as such by the buyer. And although it be de- livered partly alio intuitu, namely as a sample of quality, it does not therefore (r) Hart v. Sattley, 3 Campb.528. (0 Ante, 90. (s) 5 Barn. & Aid. 557. And see Jliley v. (u) 7 East Rep. 558. See also Klinitz v. Emery, 4 M. & S. 262. Surrey, 5 Esp. 267. *94 Chap. 1.] Contracts for the Sale of Goods. 94 prevent its operating to another consistent intent, also in pursuance of the pur- pose of the parties, as expressed in the conditions of sale, namely, as a part delivery of the thing itself, as soon as in virtue of the bargain the buyer should be entitled to retain, and should retain it accordingly. And the Court are of opinion, that the sample must be considered as part of the goods sold. But in the case of Cooper v. Elston^ (u) which was an action of assumpsit, brought to recover the damages sustained by the plaintiff in consequence of the defendant's not delivering 50 quarters of wheat pursuant to his contract with the plaintiff. And the facts were as follow : The defendant on the 4th of July 1795, at Nottingham, sold to the plaintiff by sample 50 quarters of wheat at 4 guineas per quarter : the wheat to be delivered by the defendant to the plaintiff at Gainsborough. Two days afterwards the defendant delivered to the plaintiff at Nottingham the sample by which he had sold the wheat to him ; but such sample was no part of the 50 quarters to be delivered at Gainsbo- rough. No money was paid by the plaintiff to the defendant on account of the wheat ; nor was there any memorandum in writing signed by the parties. The defendant afterwards refused to deliver the wheat. The Court were of opinion that this case came within the 17th section of the statute ; and therefore judg- ment was given for the defendant. And Lord Kenyon, Ch. J. said : "After this question has been afloat so long in the courts, I am glad that by the very able decision of the Court of Common Pleas, in the case of Randeau v. Wyatt, the construction of this clause of the statute of frauds is brought back to the manifest intention of the legislature in making that provision. To the author- ity *of that case I entirely subscribe, and, in my opinion, it governs the present. The doctrine which was laid down in Clayton v. Andrews,(v) as to executory contracts not being within the statute, was taken from Towers v. Osborne.(w) I will not pretend to say that those cases were not rightly decid- ed upon their particular circumstances. The latter was a mere contract for work and labour ; the thing contracted for did not exist at the time. In the former, also, something was required to be done in order to put it in the state in which it was contracted to be sold. But at any rate I am at a loss to discover how this can be called an executory contract for the sale of the goods in question. The thing sold existed in solido at the time of the con- tract of sale. I am not able to distinguish this case from that of Randeau v. Wyatt ; and the grounds and principles of that decision are so amply de- tailed in the report of it, that it is unnecessary to add any thing more. With respect to this coming within one of the exceptions of the statute on ac- count of the acceptance of the sample ; there is no pretence for it, for the case expressly states, that the sample was no part of the goods contracted to be delivered." 4. Of Earnest given to bind the Bargain, or of Part Payment.] — (u) 7 Term Rep. 14. See also Alexander (t>) Ante, 82. v. Camber, 1 H. Bl. 20. S. P., and Taber v. (to) Ibid. West, Holt's Ni. Pri. Rep. 179. ♦95 93 Of the Statute of Frauds upon [Part II. It is observed, (x) " that where part of the price is paid down, if it is but a penny, or any portion of the goods is delivered by way of earnest, it is binding. The thing given as earnest need not be money, but may be any other symbol, as a ring or glove, ) Jones v. Bou-den, 4 Taunt. S47. (r) Bridge v. Wain, 1 Stark. 504. (77) The defendant, as agent and consignee of a merchantile house in New-Providence, received a quantity of wood, described in the invoice as brazilletto, but which, in fact, was peachum wood, an article of very inferior value. He advertised it by the description of brazilletto, exhibited the invoice to the plaintiffs, and on a sale to them, made out the bill of parcels as, and for, brazilletto. The wood was delivered from the vessel under the inspec- tion of the plaintiffs' agent : There was no express warranty of the article ; nor was it pretended, that the defendant knew it to be peachum, or that the plaintiffs, at the time of the sale, suspected it to be other than brazilletto. No fraud was imputed to the defendant. As •118 Chap. 1.] Of Sale of Goods, fyc. 118 where a warranty of seed is given in these terms, " good round white turnip- seed, which the seller could warrant ;" if the seed fails in the growth on ac- count of the badness of the quality, the seller is answerable to the buyer upon such a warranty, for the damage he may have sustained in consequence of the failure of the crops.(s) But in a sale of pictures, the putting down the name of an artist in a cata- logue as the painter of any picture, is not such a warranty as will subject the party selling to an action, if it turns out that he might be mistaken, and that it was not the work of the artist to whom it was *attributed. Thus, in the case of Jeudwine v. Slade, (t) which was an action brought to recover damages on the sale of two pictures, one of which was said to be a Sea-Piece by Claud Lo- raine, the other a Fair by Teneirs, which the defendant had sold to the plaintiff as originals, when in fact they were copies. The defence relied on was, that they were sold under a catalogue, not amounting to an absolute warranty, but upon which the buyer was to exercise his own judgment ; and further, that a bill had been filed by the defendant two years ago to compel the plaintiff to complete the sale ; to which he had put in no answer, but paid the money, and that he therefore could not now seek to rescind the contract after such acquies- cence. The plaintiffs counsel answered this objection, by insisting that the name of the artist put opposite any picture in a catalogue was a warranty ; and if the article sold did not correspond with it, it avoided the sale ; and as to the transaction, in respect of paying the money, that the plaintiff was deceived, but had brought his action as soon as he discovered the fraud. Several of the most eminent artists and picture dealers were called, who differed in their opinion respecting the originality of the pictures. When the evidence was closed, Lord Kenyon Ch. J. said : " It was impossible to make this the case of a warranty ; the pictures were the work of artists some centuries back, and there being no way of tracing the picture itself, it could only be matter of opinion, whether the picture in question was the work of the artist whose name it bore, or not ; and the catalogue of the pictures in question leaves the determination to the judg- ment of the buyer, who is to exercise that judgment in the purchase ; for if the seller only represents what he himself believes, he can be guilty of no fraud." The plaintiff was accordingly nonsuited. Where a treaty for the sale of a commodity had been entirely broken off, a warranty made at the time of such treaty, was holden not to extend to a sub- sequent sale of the same commodity at a reduced price. Thus, in an anony- ms) Button v. Corder, 7 Taunt. 405. {t) 2 Esp. Rep. 572. soon, however, as the quality of the wood was discovered, the plaintiffs offered to return it to the defendant, and demanded the purchase money. The defendant refused to accept the one, or repay the other; as he had previously remitted the avails of the sale to his principals. In an action on the case for selling the peackum wood for brazilletto, it was held, that the de- scription of the article mentioned in the advertisement and bill of parcels, did not amount to a warranty ; and therefore, that the plaintiffs were not entitled to recover. Seixas v. Woods, 2 Caines, 4S. So, an advertisement of property for sale, which gives it a higher character than it deserves, will not amount to a warranty of its cmality ; especially, if the purchaser rely on his own examination. Calhoun v. Vecchio, C. C. April 1812, MS. Reports, Whart. Dig. 595. *119 119 Of Warranties upon Contracts [Part II. tnous case, (u) which is reported as follows : " The defendant came to the plaintiff, who was a sword-cutler, to sell him a second-hand sword ; and upon his warranting it to be a silver hilt, the plaintiff offered him a guinea and a half for it ; the defendant refused to take the money, and thereupon went to several other sword-cutlers, but not meeting with any who would give so much as the plaintiff, he came back to him, and told him he should have it for the price he offered ; the plaintiff upon that, thinking to have it cheaper refused to give the guinea and a half, and at last beat down the price to 28s., which was paid the defendant for the sword. Afterwards the plain- tiff found that the gripe of it was only silver, and the rest of the hilt was •brass ; upon which he brings his action against the defendant, and declares upon the warranty of the hilt's being silver, when in fact it was brass ; but not being able to prove a warranty upon the second bargain, he was non- suited. Pratt Ch. J., being of opinion, that the warranty upon the bidding a guinea and a half would not extend to this sale, which was a new and differ- ent contract at a different time. Also he seemed to be of opinion, that the gripe being silver, the plaintiff should have declared specially on a warranty of the rest of the hilt only, and have said that that part was brass." If a person having goods which are damaged, and, knowing them to be in that state, sell them for sound and marketable goods, and affirm them to be so, an action on the case lies for the deceit : (78) but if the seller, at the time of the sale, does not know that they are damaged, no action lies without an express warranty ; though, at the time of the sale, he affirms them to be sound. Thus, in the case of Chandelor v. Lopus, (u)which was an action upon the case wherein the plaintiff declared ; whereas the defendant being a goldsmith, and having skill in jewels and precious stones, had a stone which he affirmed to the plaintiff to be a bezar-stone, and sold it to him for 100/., whereas it was not a bezar-stone. The defendant pleaded not guilty, and a verdict was given, and judgment entered for the plaintiff in the King's Bench. But error was thereof brought in the exchequer chamber; because the declaration did not contain matter sufficient to charge the defendant, viz. that he warranted it to be a bezar-stone, or that he knew that it was not a bezar-stone ; for it may be that he himself was ignorant whether it was a bezar-stone or not. And all the justices and barons (except Anderson) held, " that for this cause it was error, for the bare affirmation that it was a bezar-stone, without warranting it to be so, is no cause of action : and although he knew it to be no bezar-stone, it is not material ; for every one in selling his wares will affirm that his wares are good, or the horse which he sells is sound ; yet if he does not warrant them {n) Stra. 414. B. 94. C. 3 Bl. Com. 166. 3 Wooddeson's (») Cro. Jac. 4. et vide 1 Dy. 75. a. F. N. Lect. 199. (73) Where A. purchased a waggon of B., on sight, and from the representations of B., as to its value, was induced to give a much greater price for the article than it was worth ; it was held, that B. was not liable to an action of deceit for a false affirmation, there being no express warranty or fraud. Davis v. Meeker, 5 J. R. 354. *120 Chap. 1.] Of Sale of Goods, §>c. 120 to be so, it is no cause of action, and the warranty ought to be made at the time of the sale ; as F. N. B. 94. C. and 98 B. 5 Hen. 7. pi. 41. 9 Hen. 6. pi. 53. 12 Hen. 4. pi. 1. 42 Ass. 8. 7 Hen. 4. pi. 15. Wherefore forasmuch as no warranty is alleged, they held the declaration to be ill." But Anderson to the contrary ; " for the deceit in selling it for a bezar, whereas it was not so, is cause of action." But, notwithstanding, it was adjudged to be no cause, and the judgment was reversed. So, where a ship, or any other commodity is sold " with all faults," and so declared at the time of sale, the vendor is not answerable for any latent defect or secret fault known to him at the time, unless he *practise some artifice to prevent a discovery of it. by the purchaser. (w) A contrary doctrine, however, was once held ;(») but that decision was afterwards much considered, and over- ruled, (y) So, upon a return and exchange of wine between a wine-merchant and his customer, where no representation is made at the time by the customer of the quality of the wine he returns, and no fraud is practised, he is not answerable for the condition of the wine at the time of its return to the wine merchant. Thus, in the case of La Neuville v. Nourse,(z) the facts proved were as fol- lows ; the defendants who had purchased ten dozen of Burgundy wine of the plaintiffs about a year before, applied to the plaintiffs to have it exchanged for Champaigne, which was at that time of the same price. The plaintiffs agreed to this, and the exchange took place. When the Burgundy was sent to the de- fendants it was of the first quality and in the best condition ; but when it was returned it was quite sour, and only fit to be used as vinegar. An action was brought to recover the value of the Champaigne, or a compensation for the bad condition of the Burgundy. There was no evidence of any representation by the defendants respecting the condition of the wine, or of any promise by them upon the subject. Lord Ellenborough Ch. J. held, that without evidence of an express warranty, or of direct fraud, the action could not be supported ; and that the maxim of caveat emptor applied to this case. But it is clear, that any intentional deception practised by the seller, for the purpose of disguising the latent defects of a ship or any other article sold, and in order to elude the vigilance of the buyer, is fraudulent, and avoids the con- tract. Thus, in the case of Schneider v. Heath(a) which was an action for money had and received, to recover back the deposit paid upon the purchase of a ship called the Juno, on the ground of misrepresentation and fraud on the part of the vendor. The particular exhibited at the sale described the hull of the ship to be nearly as good as when launched, requiring a most trifling outfit ; but further, " that the vessel and her stores are to be taken with all faults, as they now lie, without any allowance for weight, length, quality, or any defect (io) Baglehole v. Waters, 3 Campb. 154, (y) Vide the capes cited in note to. and see 4 Taunt. 779. (r) 3 Campb. 351. (x) Mcllish v. Motteux, Peake's N. P. (a) Ibid. 506. et vid. Fletcher v. Bowsher, Rep. 115. 2 Stark. 561. 16 *121 121 Of Warranties upon Contracts [Part II. whatever." The vessel was purchased hy the plaintiff for 1580/. and he im- mediately paid the deposit of 397/. 2s. which he now sought to recover. Hav- ing taken possession of her, he sent her to a shipwright's to be examined ; here it was found that her bottom was worm-eaten, that her keel was broken, that she was quite unseaworthy, and that she by no means corresponded with the description in the particular. The plaintiff *therefore refused to complete the purchase, and demanded back his deposit. At the trial it appeared in evidence, that the ship belonged to a club of underwriters, to whom she had been aban- doned, and on whose account she was sold ; that the state of her bottom and her keel must have been known to the agents employed to conduct the sale ; and that the captain, when the ship was advertised for sale, took her from the ways on which she lay, and where the state of her bottom and her keel might easily have been discovered, and kept her constantly afloat, so that these defects were completely concealed by the water. The person who had framed the partic- ular stated, that he had inserted the description without having examined her. Mansfield Ch. J. said. "The words are very large to exclude the buyer from calling upon the seller for any defect in the thing sold ; but if the seller was'guilty of any positive fraud in the sale, these words will not protect him ; there might be sueh fraud, either in a false representation, or in using means to conceal some defect. 1 think the particular is evidence here. by way of representation, which states the hull to be nearly as good as when launched, and that the ves- sel required a most trifling outfit. Now, is this true or false 1 If false, it is a fraud which vitiates the contract. What was the fact? the hull was worm-eat- en, the keel was broken, and the ship could not be rendered sea-worthy with- out a most expensive outfit. The agent tells us, he framed this particular with- out knowing any thing of the matter ; but it signifies nothing, whether a man represents a thing to be different from what he knows it to be, or whether he makes a representation which he does not know at the time to be true or false, if in point of fact it turns out to be false. But besides this, it appears here that means were taken fraudulently to conceal the defects in the ship's bottom. These must have been known to the captain, who is to be considered as the agent of the owners ; and he evidently, to prevent their being discovered by per- sons disposed to bid for her, removed her from the ways, where she lay dry, and kept afloat in the dock till the sale was over. Therefore, consistently with the decided cases upon this subject, I am of opinion that the plaintiff is entitled to recover back his deposit." And a verdict was accordingly found for the plaintiff to that extent. So, where, in an advertisement for the sale of a ship, she was described as 41 a copper-fastened vessel," but with these words subjoined, " the vessel to be taken with all faults, without allowance for any defects whatsoever;" the vessel when sold was only partially copper-fastened, and that she was not what is called in the trade, a copper-fastened vessel. The buyer, however, had a full *12S £s Chap. 1.] Of Sale of Goods, fyc. opportunity of examining the vessel before the sale. But it that the buyer was entitled to damages in an action upon the that the words "with all faults" could only mean all faults wrf tened *ship may have ; but here the vessel was not what she was warranted to be, namely, " a copper-fastened vessel." (a) In all cases of sales, where the goods upon examination do not correspond with the sample and warranty, the buyer should immediately give notice thereof to the seller, and offer to return them ; for by neglecting to do so within a reasonable time after the sale and in- spection, every inference would be taken most strongly against the presumption of their having been defective at the time of delivery. Thus, in the case of Prosser v. Hooper, (b) which was an action against the seller upon a breach of warranty upon a sale of lOOlbs. weight of saffron; at the trial it was proved on the part of the plaintiff, that the article delivered was not saffron, but that a fourth part consisted of a vegetable resembling it, which it was impossible to detect at the time of sale. But on the part of the defendant it was proved, that the plaintiff knew that the saffron was of an inferior quality, and that they paid for it accordingly, at the rate of 48s. per pound, when the best was worth 13s. ; it was also proved, that the plaintiffs examined the bulk, and refused to buy by sample ; that they kept it six months without objecting to the article, and that they had sold part of it, when they insisted that it was not saffron; and brought their action accordingly. It was urged by the plaintiff's counsel, that the keep- ing of the article for six months could not do away the contract, which was for the purchase of saffron, and that the maxim of caveat emptor, could not be set up as a defence for the non-performance of a written contract. The jury, how- ever, found a verdict for the defendant. And upon a motion for a rule to set aside this verdict, the Court, after argument, refused the rule ; and Lord Ch. J. Gibbs said, " This article was sold to the plaintiffs by the name of saffron ; they examined it with great minuteness ; received it into their custody ; kept it six months, and then sold a part of it. Although only three-fourths of it were saffron, still it was fair for the jury to infer, from the inferior price that was given for it, that it was such an article that the plaintiffs intended to purchase : and under all the circumstances, they were justified in giving their verdict for the defendant." 3. Of the Warranty of soundness, &c. of Cattle.] — Upon the sale of cattle, a warranty of soundness is frequently given by the seller to the buy- er. This kind of warranty, however, gives rise to great disputes and litiga. tion ; and it is much to be feared, that deceit and false swearing are too often resorted to on these occasions in order to get rid of the liability upon warranty. It is, indeed, sometimes difficult to ascertain what amounts to unsoundness in a horse. I shall therefore lay before the reader the substance of the different cases which have been determined on the question of warranty and deceit, and shew the general rules of law *relating to the sale of cattle. In our earlier («) Shepherd v. Kain, 5 Barn. & Aid. 240. 140. Ante 111. 129. (6) 1 Mo. Rep. 106. et vid. 1 Stark. *123 *124 - r ^4 Of Warranties upon Contracts [Part II. books on this subject, we find it laid down, that if there be a communication between A. and B. for the buying of sheep, and thereupon B., the vendor, says they are his own sheep, when in truth they are the sheep of another, and A. buys them of B., an action lies against B. though he made not any express warrranty of the sheep.(c) So, if A. sells sheep, and warrants that they are sound, and shall continue so for a year after, this is good, and shall bind him.(d) The words of a warranty shall have a reasonable construction ; as(e), if a man take sheep to depasture, and warrant that he will keep them sound in his land, that shall be intended that his pasture shall not infect them ; but an action does not lie if they were unsound at the time of the warranty. But where a person sell a horse, affirming it to have been his from a colt, when it was not, an action lies for this deceit. (/) So, if a man sell unto another a horse, and warrant it to he sound and good, &c. ; if the horse be lame or dis- eased that he cannot work, the buyer shall have an action upon the case against the seller. (?) But it is said, that unless the seller expressly warrant the horse to be sound, no action will lie ; for if he sell it without such warranty, it is at the buyer's peril, and his eyes ought to be his judges in that case. (A) So, a general warranty will not extend to guard against defects that are plainly and obviously the object of one's senses ; as, if a horse be warranted perfect, and wants either a tail or an ear, unless the buyer in this case be blind. But if cloth is warranted to be of such a length, when it is not, there an action on the case lies for damages ; for that cannot be discerned by sight, but only by a collateral proof, the measuring of it. (i) Also, if a horse is warrant- ed sound, and he wants the sight of an eye, though this seems to be the object of one's senses, yet, as the discernment of such defects is frequently a mat- ter of skill, it hath been held that an action on the case lieth to recover dam- ages'/or this imposition, (k) Thus, in the case of Butlerfield v. Burroughs,(l) the plaintiff declared that the defendant sold him a horse such a day, and at such a place, and then and there warranted the said horse to be sound, wind and limb ; whereupon he paid his money, and avers the horse had but one eye, &c. The defendant pleaded non warrantizavit, upon which there was a ver- dict for the plaintiff: but in arrest of judgment, it was objected, first, that the want of an eye was a visible thing ; whereas die warranty extends only to se- cret infirmities. To this, however, it was answered, and resolved by the Court, that this might be so, *and must be intended to be so, since the jury had found the defendant did warrant. The second objection was, that the warranty, as is here set forth, might be at a time after the sale ; whereas it ought to be part of the very contract; and therefore it is always alleged war- (c) 1 Rol. Abr. 90. pi. 6. Cro. Jac. 474. (h) F. N. B. 94. C. Bridg. 127. (d) 1 Dan. Abr. 18S. (i) Finch L. 189. 3 Bl. Com. 165. (e) 1 Rol. Abr. 97. pi. 4. (k) Ibid. (/) 1 Rol. Abr. 91. 1. 10. (/) 1 Salk. 211. et vid. 2 Rol. Rep. 5. Bridg. M F. N. B. 94. C. 1 Rol. Abr. 96. Doik*. 128. Cro. Jac. 387. 3 Bulst. 95. 3 Keb. 18. 101. F.N. B. 94. C. n. c. *125 Chap. I.] Of Sale of Cattle, $c. 125 rantizando vendidit. Sed non allocatur ; for the payment was afterwards, and it was that which completed the bargain, which would have been imperfect without it. So, if A. sells a horse to B. and warrants him to be sound wind and limb, and clean of legs, whereas he well knows that he is shoulder pitched, and has splints upon his legs, an action lies against him upon this warranty ; for these imperfections are not subject to the view of an unskilful person. (m) But a warranty that a horse is sound, is not falsified by its labouring under a tem- porary injury happening from an accident. Thus, in the case of Garment v. Barrs,(n) which was an action of assumpsit on a warranty of a mare sold by the defendant to the plaintiff. The declaration stated, that in consideration that the plaintiff, at the special instance and request of the defendant, had bought of him a certain mare of great value, the defendant undertook and pro- mised the plaintiff that she was sound, &c. At the trial, the first witness call- ed on the part of the plaintiff proved the sale, and that the defendant warrant- ed her to be sound ; but he said further, that, upon the plaintiff observing that she went rather lame of one leg, the defendant said that that had been occa- sioned by her taking up a nail at the farrier's, and except as to that lameness she was perfectly sound. The counsel for the defendant contended that the plaintiff should be non-suited on the ground of a variance. He observed, that the plaintiff had declared upon a warranty in general terms that the mare was sound ; whereas the warranty proved in evidence was, with an exception of the lameness of the foot ; this he contended was a fatal variance. But Eyre Ch. J. said, " A horse labouring under a temporary injury or hurt, which is capable of being speedily cured or removed, is not for that an unsound horse ; and where a warranty is made that such a horse is sound, it is made without any view to such injury ; nor is a horse so circumstanced an unsound horse within the meaning of the warranty. I am of opinion, that to make the ex- ception such as ought to have been stated in the declaration, as a qualification of the general warranty, so as to make a fatal variance between the warranty really made, and that stated in the declaration, the injury the horse had sus- tained, or the malady under which he laboured, ought to be of a permanent nature, and not such as arose from a temporary injury or accident." A contrary opinion, however, was once held by Lord Ellcnborough, in the case of Elton v. Brogden,(o) which was an action upon a warranty of a *horse ; it was proved that it was lame at the time of the sale, which the defendant admitted, but undertook to prove that the lameness was of a temporary nature, that he afterwards recovered, and had become in all respects sound. But Lord Ellenborough Ch. J. said, " I have always held and now hold, that a warranty of soundness is broken, if the animal at the time of the sale had any infirmity upon him which rendered him less fit for present service. It is not necessary that the disorder should be permanent or incurable. While a horse has a (m) 1 Rol. Abr. 97. pi. 14. (o) 4 Camp. 281. (n) 2 Esp. Rep. 673. *126 126 Of Warranties upon Contracts [Part II. cough, I say he is unsound, although that may either be temporary or may prove mortal. The horse in question having been lame at the time of the sale, when he was warranted to be sound, his condition subsequently is no de- fence, to the action." And a verdict was accordingly found for the plaintiff. Upon a warranty of the soundness of a horse, it is now settled, that a horse afflicted with roaring is an unsoundness, (p) But crib-biting is said not to be an unsoundness ; and amongst those who are skilled in the veterinary art, it is said, that there is a division in opinion, whether or not thrushes, splints, and quidding, can be deemed unsoundness^*) If the seller of a horse refers to a written pedigree to ascertain his age, but declares he knows nothing more about it, he is not liable if the pedigree turns out to be false. Thus, in the case of Dunlop v. Waugh,(q) which was an action of assumpsit on a promise that a horse, bought by the plaintiff of the defendant, was only eight years old, when in fact, he was fourteen. The defendant, when he sold the horse, showed the plaintiff a written pedigree, which he had received with him from the person of whom he had bought him, and said that he sold the horse according to that pedigree, knowing nothing of him further than he had learned therefrom, the mark being out of his mouth vvhen he had bought him. The pedigree was clearly proved to be false, but the defendant had no knowledge of this when he sold the horse. Lord Kenyon Ch. J. was clearly of opinion " that this was no warranty. The defen- dant related all he knew of the horse, and did not enter into any express under- taking that the horse was of the age stated in the pedigree, but stated the contents of that which the plaintiff relied on." If a horse is sold warranted sound ; and it can be clearly proved, that it was unsound at the time of sale, the seller is liable to an action on the warranty without either the horse being returned, or notice given of the unsoundness. Thus, in the case of Fielder v. Starkin,(r) which was an action of assumpsit on the warranty of a mare, " that she was sound, quiet, and free from vice and blemish.'" On the trial it appeared, that the plaintiff had bought the mare in question of the defendant, at *Winnel fair, in the month of March, 1787, for thirty guineas ; and that the defendant warranted her sound, and free from vice and blemish. Soon after the sale, the plaintiff discovered that she was unsound and vicious, but kept her three months after this discovery, during which time he gave her physic, and used other means to cure her. At the end of three months he sold her ; but she was soon returned to him as unsound. After she was so returned, plaintiff kept her till the month of October, 1787, and then sent her back to the defendant as unsound, who refused to receive her. On her way back to the plaintiff's stable the mare died ; and, on her being opened, it was the opinion of the farriers that she had been unsound a full twelvemonth before her death. It also appeared that the plaintiff and defendant (p) Onslow v. Eames, 2 Stark. 81. (q) Peake'sCas. Ni. Pri. 123. (*) Holt Ni. Pri. Cas. 630. 2 Campb. (r) 1 H. Bl. 17. et vid. post. Chap. 4. 524. in notis. tit. Money had and received. *127 Chap. 1.] Of Sale of Cattle, $c. 127 had been often in company together during the interval between the month of M arch, when the mare was sold to the plaintiff, and October, when he sent her back to the defendant ; but it did not appear that the plaintiff had ever in that time acquainted the defendant with the circumstance of her being unsound. The jury found a verdict for the plaintiff, with thirty guineas dam- ages : but the defendant afterwards obtained a rule nisi for the plaintiff to show cause why the verdict should not be set aside, and a nonsuit entered, upon the ground that the horse had not been returned, nor any notice given to the defen- dant of the unsoundness. The Court, however, after argument, discharged the rule, and determined that it was not necessary either to return the horse, or to give notice of its unsoundness. But if a warranty be accompanied with an undertaking on the part of the seller to take the horse again, and pay back the purchase money ; if on trial he shall be found to have any of the defects mentioned in the warranty, the buyer must return the horse as soon as he discovers any of those defects, in order to maintain an action on the warranty, unless he has been introduced to prolong the trial by any subsequent misrepresentation of the seller ; and in such case the term trial means a reasonable trial, (s) So, where a horse is sold by public auction, and one of the conditions of sale is, thai the purchaser of any horse warranted sound, who shall conceive the same to he unsound, shall return him within two days, otherwise he shall be deemed sound : if the buyer neglects to return the horse within the time allowed, no action will lie on the warranty, (t) But, if a horse sold at a public auction be warranted sound, and six years old, and it be one of the conditions of sale that he shall be deemed sound, unless returned within two days, this condition ap- plies to the warranty of soundness only, and not to the age of the horse. Thus in the case of Buchanan v. Parnshaw,(u) where a horse was sold *with such a warranty, and it was discovered ten days after the sale to be twelve years old ; and was then offered to the seller, who refused to take him. It was holden that an action might be maintained by the buyer against the seller upon the warranty ; and that his right to recover was not affected by his having sold the horse after offering him to the defendant. Lord Kenyon Ch. J. said, " The condition of sale must be confined solely to the circumstance of unsoundness. There is good sense in making such a condition at public sales ; because, not- withstanding all the care that can be taken, many accidents may happen to the horse between the time of sale and the time when the horse may be returned, if no time were limited : but the circumstance of the age of the horse is not open to the same difficulty." In order to entitle the buyer to recover the keep of an unsound horse, he must make an offer to return it to the seller. (v) And when cattle or goods are sold and delivered upon a warranty of soundness, or other particu- (s) Mam v. Richards, 2 H. Bl. 573. ( M ) 2 Term Rep. 745. (t) Jlhsnard v. Aldridge, 3 Esp. Rep. 271. (r) Caswelt v. Coare, 2 Campb. 82. *128 128 Of Warranties upon Contracts [Part IT. lar quality, if the buyer discovers the warranty to be untrue, he should imme- diately return the thing bought to the seller ; otherwise he will be liable to an action for the price agreed on ; and he cannot defend himself upon the ground of the warranty being untrue : for where the buyer keeps the thing bought, his only remedy in such case is by action for damages upon the warranty. Thus, in the case of Curtis v. Hannay, bart, (w) which was an action of assump- sit to recover the price of a horse sold by the plaintiff to the defendant, who was an officer in the life-guards ; and upon its being proved, that the horse had been warranted, the defence set up was, that the warranty had not been complied with, the horse having defective eyes when sold ; but it appeared in evidence that the defendant had been informed of the defect in the eyes the day after he bought the horse, but that he kept it near seven weeks after- wards before he returned it ; and, in the course of which time, suspecting the horse had some defect in his feet, he had applied a blister and some other medicines to the part : this produced a disorder called a thrush, and a consid- erable degree of lameness ; it was, however, only a temporary lameness, and the horse recovered of it ; and it was in evidence, that the remedies applied to the leg and foot could not have affected the eyes. Upon these facts being proved, Lord Eldon Ch. J. said, " He thought the matter set up by the defen- dant was no defence to the action : it appeared that the horse had defective eyes when sold, and that that defect was made known to the buyer a very short time after he had purchased him. Instead of returning him immediately, the defendant doctored him : this produced a new disorder, which the horse had not when sold. The question was, would the horse, when returned to the seller, be diminished in *value by this doctoring'? if he would, his lord- ship said he thought the defendant should pay the price, and bring his action against the seller for any defect in the warranty existing at the time of the sale. He took it to be clear law, that if a person purchases a horse which is warrant- ed, and it afterwards turn out that the horse was unsound at the time of the warranty, the buyer might, if he pleased, keep the horse, and bring an action on the warranty, in which he would have a right to recover the difference be- tween the value of a sound horse, and one with such defects as existed at the time of the warranty ; or he might return the horse, and bring an action to re- cover the full money paid ; but in the latter case, the seller had a right to expect that the horse should be returned in the same state he was when sold, and not by any means diminished in value : for his lordship said, " if a person keeps a war- ranted article for any length of time after discovering its defects, and when he returns it, it is in a worse state than it would have been if returned immediately after such discovery, I think the party can have no defence to an action for the price of the article on the ground of noncompliance with the warranty ; but must be left to his action on the warranty, to recover the difference in the value of the article warranted, and its actual value when sold." And his lordship >129 (w) 3 Esp. Rep. 82. Chap. ].] Of Sale and Return of Goods, 129 concluded with saying, "that if the jury thought, that if any future purchaser was to be told that the horse had been blistered and doctored, it would diminish its value in the estimation of such purchaser, they should find a verdict for the plaintiff;" which ihcy accordingly did, for forty-five guineas, the price agreed upon. Where A. and B. severally employ C. to sell their horses, C. sells both to D. at an entire price, and warrants them sound, D. cannot sever the contract and bring an action on the warranty against A., in respect of the unsoundness of A.'s horse; his remedy being against C. alone. (a:) 6. OF SALE OR RETURN OF GOODS. In particular trades it is very common for the manufacturer or whole-sale trad- er to send to a retail dealer different articles of manufacture upon the terms of Sale or Return.. When this happens, the retail dealer should notify to the trad- er within a reasonable time, whether he intends buying them or not, and to act accordingly ; for if the goods are kept an unreasonable length of time, with- out any notification, the retail dealer may be thereby fixed with the price of them. (79) Thus, in the case of Barley v. Gouldsmith, (y) which was an ac- tion for goods sold and delivered. The goods were delivered on the terms of sale or return, in *the beginning of the year 1789, and consisted of waistcoats made in England, exported to France, there embroidered and imported again into England. But the defendant had never returned or offered to return them. Lord Kenyon Ch. J. said, " that no certain time being mentioned for the re- turn of the goods, the jury should consider whether a reasonable time had elaps- ed for the return according to the usual course of dealing in that trade. His lordship was inclined to think there had ; and if the jury should be of that opin- ion, he should consider them as goods sold and delivered." But the jury gave (x) Symonds v. Carr, 1 Campb. 361. (y) Peake's Cas. Ni. Pri. 56. Et vid. Hort v. Dixon, Selw. Ni. Pri. 101. (79) A. purchased of B. a negro slave, for the price of which he save his bill at 5 months ; and it was agreed between the parties, that if A. or his wife should not like the slave, b'. would receive him back at any time within 5 months and refund the purchase money ; A. offered to return the slave within the 5 months, and B. refused to receive him, or to refund the money. A., having paid the bill, brought an action against B. to recover back the pur- chase money ; it was held, that he was entitled to recover the amount, as damages for the non-performance of the agreement. Giles v. Bradley, 2 J. C. 253. So, after the sale of a chattel had been completed, it was agreed, that the vendee might, within a reasonable time, return it, and receive back the price, if returned in as good condition as it was at tho time of the sale : and the vendee afterwards rescinded the contract and returned the chat- tel; and the vendor received it without any objection, and returned the purchase money ; it was held, that the vendor was concluded by his own act from maintaining an action against the vendee, for any deterioration of the chattel while in his possession, not arising from any secret injury ; because, he thereby rescinded the contract of sale unconditionally. Lord v. Kenny, 13 J. R. 219. Upon the sale of a chattel, with warranty of its soundness, or where, by the special terms of the contract, the vendee is at liberty to return the article, an offer to return it is equivalent to an acceptance by the vendor ; and the contract being thereby rescind- ed, it is a good defence against an action for the purchase money, and will also entitle the vendee to recover it back, if it has been paid. Thornton v. Wynn, 12 Wheat. 183. J 17 *130 130 Of Sale and Exchange of Goods. [Part II. no verdict, as the plaintiff* consented to a nonsuit upon another ground, wholly irrelevant from the present subject. When goods are sent upon sale or return, and the retail dealer becomes bankrupt whilst they remain in his possession, such goods pass to his assignees under the commission, even though no notification was made by the bankrupt prior to his bankruptcy, whether he would keep or return them.(^) 7. OF SALE AND EXCHANGE. Contracts of sale and exchange differ from ordinary sales in this respect, namely, that in the one case money is given as the price of the goods sold, and in the other, one commodity is bartered in exchange for another. Both are founded on a valuable consideration, and are governed by the same rules of law.(80) But in contracts of sale and exchange, the law will not raise any implied warranty.(a) And if upon a sale and exchange of goods, the goods are delivered to the parties respectively, the property in the goods so delivered remains with the possessors. Thus, in the case of Emanuel v. Dane,(b) which was an action of trover for a watch; and the plaintiff's case was, that he had exchanged this watch with the defendant for a pair of candlesticks, warranted to be silver, which turned out to be base metal ; and that the defendant, on the candlesticks being returned to him, had refused to deliver up the watch. Lord Ellenborough Ch. J. said, " Unless the contract be rescinded this action cannot be maintained ; the watch remains the property of the defendant, though the plaintiff be entitled to a compensation in damages for a breach of the warranty that the candlesticks were of silver. I cannot try a question of warranty in an action of trover. The contract should be de- clared upon specially." Where an agreement is made between two traders to exchange goods for goods, and a balance is struck between them; such balance is to be *paid in money, otherwise there could be no end to the dealings, (e) So, where two tradesmen agree to deal with each other by way of barter, if one refuses to ac- count, the other may arrest for the whole value of the goods which he has fur- nished to the party refusing.(rf) 8. OF BARGAIN AND SALE OF GOODS WITHOUT DELIVERY. A bargain and sale is said to be where a man makes a contract with another (i) Livesay v. Hood, 2. Campb. Rep. (6) 3 Campb. 299. 83. (c) Ingram v. Shirley, 1 Stark. 185. (a) La Neuville v. Nours6, 3 Campb. 351. (il) Germainx. Burroxcs, 5 Taunt. 259. et ante, 115. \ (80) If, in the exchange of goods, one party defraud the other, who, for that reason, elects to rescind the contract, it is not sufficient for the injured party to give notice of his election to the other, and merely request him to come and receive his goods ; but he must return them to the party defrauding him, before any right of action will accrue to him. Norton v. Young, 3 Greenl. 30. * *131 Chap. 1.] Of a Bargain and Sale without Delivery- 131 for the sale of goods or chattels, and at the same time makes the sale of them, (e) If the contract be executory, it amounts to au agreement ; but if it be executed by actual sale, this is a bargain and sale ; and where, by the terms of the contract, the money is to be paid before the delivery of the goods, or if there be no agreement as to the time of payment, and the vendee refuses to take away or accept the goods ; in either case the vendor may recover the price agreed upon, by action of indebitatus assumpsit for goods bargained and sold. (/) So, if goods are bought at a public sale, the owner may recover the price at which they were sold, in the like form of action, even though the goods are resold in consequence of the buyer's default, in not fetching them away within the time limited by the conditions of sale. Thus, in the case of Mertens v. Aclcock, (g) which was an action for special damages for not taking away goods bought at an auction, and for goods bargained and sold. The goods were resold under the usual printed conditions. The counsel for the defendant objected that the plaintiff could not recover for goods bargained and sold, he being in no situation to deliver the goods if he recovered the price of them. But Lord Ellenborough Ch. J. ruled, " that those circumstances did not prevent the plaintiffs right of recovering ; for if he recovered on the count for goods bargained and sold, the defendant might maintain an action of trover for them. As soon as the lot was knocked down to him, he became the buyer ; they were goods bargained and sold." The plaintiff accordingly recovered a verdict upon the count for goods bargained and sold. This decision, how- ever, was doubted by Gibbs Ch. J. in a similar case, of Hagedornv. Laing, (?) where he said, " I would not unnecessarily differ from Lord Ellenborough ; but I much doubt whether this can in any manner be considered as a case of goods bargained and sold : here is a particular contract, that on paying for the goods, and taking them away at a certain time, the purchaser shall have the goods : but if it be a contract of bargain and sale, it certainly is subject to a condition ; for if the purchaser do not take the goods *\vithin a certain time, the seller may, by the terms, rescind the cotract ; he may resell ; and if he resells, I think he shews his dissent to the contract of bargain and sale." (81) (e) Com. Dig. tit. Bargain and Sale, A. Ashlin, 3 Campb. 426. I Salk. 113. et ante, (/) Slade's case, 4 Go. 93. Shep. Touch. 39. 225. Skin. 647. Peake's Cas. N. P. 41. (i) 6 Taunt. 165, Or) 4 Esp. Rep. 251. Et vid. Greaves v. (81) Where R. G. agreed with the managers of a lottery to take 2,500 tickets, giving ap- proved security on the delivery of the tickets, which were specified in a schedule, and in books of 100 tickets each, thirteen of which were received and paid for by him ; and the remaining twelve books were superscribed by him, with his name in his proper handwriting, and indorsed by the agent of the managers, " Purchased and to be taken by Robert Gray," and on the envelope covering the whole, "Robert Gray, 12 books" ; on the second day's drawing of the lottery, one of the tickets contained in the 12 books, was drawn to a prize of 20,000 dollars : and between the third and fourth day's drawing, R. G. tendered sufficient security, and demanded the last 1,200 tickets, and the managers refused to deliver the prize ticket ; it was held, that the property of the tickets was changed when the selection was made and assented to, and that they remained in the possession of the vendors merely as collateral security, and that the vendee was entitled to recover the amount of the prize. Thompson v. Gray, 1 Wheat.. 75. See Coit v. Houston, 3 J. G. 243, 254. Penniman v. Harts- horn, 13 Maes, Rep, 87, *132 132 Of the Sale of Goods by Public Auction. [Part II. It has also been held, that such a form of action will lie even though the goods have been stopped in transitu by the seller, provided the seller is ready- to deliver them on the price being paid. (A) 9. OF THE SALE OF GOODS BY PUBLIC AUCTION. When goods are put up to sale by public auction, and a bidding is made, the bidder may retract his bidding at any time before the lot is actually knocked down to him by the auctioneer. Tims, in the case of Payne v. Cave, (I) which was an action of assumpsit for not paying a deposit upon a lot of goods sold at an auction ; the circumstances of the case were as follow, the goods were put up in one lot at an auction ; there were several bidders, of whom the defendant was the last, who bid 40/. ; the auctioneer dwelt on the bidding, on which the defendant said, " Why do you dwell 1 You will not get more." The auction- eer said, he was informed the worm weighed at least IdOOcwt., and was worth more than 401. ; the defendant then asked him, whether he would warrant it to weigh so much, and receiving an answer in the negative, he then declared he would not take it, and refused to pay for it. It was re-sold on a subsequent day's sale for 30/. ; and the action was brought for the difference. Lord Ken- yon Ch. J., before whom the cause was tried, being of opinion, on this state- ment of the case, that the defendant was at liberty to withdraw his bidding any time before the hammer was knocked down, nonsuited the plaintiff. A motion, however, was made to the Court of King's Bench for a rule to set aside this non- suit, on the ground that the bidder was bound, by the conditions of the sale, to abide by the bidding, and could not ietract. But the Court refused the rule, and said, " The auctioneer is the agent of the vendor, and the assent of both par- ties is necessary to make the contract binding ; that is signified on the part of the seller by knocking down the hammer, which was not done here till the defen- dant had retracted. An auction is not unaptly called locus pecnitentice. Every bidding is nothing more than an offer on one side, which is not binding on ei- ther side till it is assented to ; but, according to what is now contended for, one party would be bound by the offer and one not, which can never be allowed.'' If goods are fairly sold at a public auction, and the buyer refuses to accept and pay for them, he is liable to an action of damages for breach of his con- tract : but if the owner of the goods secretly employs puffers *to bid for him at the sale, it is a fraud on the real bidders, and the highest bidder cannot be compelled to complete the contract. This was settled in the case of Howard v. Castle, (m) which was an action of assumpsit ; the declaration stated, " that the plaintiff was possessed of a leasehold estate, which, on the 23d of March, 1795, she put up to sale by auction on certain conditions, among which were the following.; that the highest bidder should be the purchaser ; that the pur- (k) Kymer v. Suwercropp, 1 Campb. Rep. Christie, Covvp. 395. S. P. But sec Sugden's 109. Vendor and purchaser, ch. 1. Fonb. Treat. (/) 3 Term Rep. 148. Eq. vol. i. 227. n. x. and Bramley v. Alt, 3 (hi) G Term Rip. 642. Vide Bcxwell v. Vcs. jun. 627. contra. ft 133 Chap. 1.] Of the Sale of Goods by Public Auction. 133 chaser should, at the sale, pay 25/. per cent, into the hands of the auctioneer, and sign an agreement to pay the remainder before the 31st of March ; and that if the purchaser should neglect to comply with the conditions, the deposit money should be forfeited ; the plaintiff should be at liberty to resell the prem- ises ; and the defendant should make good any deficiencies attending the re- sale, with costs. It then stated that the defendant was the highest bidder, at the sum of 357/., yet that he had refused to pay the deposit, or to complete the purchase; that afterwards on the 10th of April, 1795, the plaintiff" again put up the premises to sale by public auction, when they were sold for 273/. ; that the deficiency, together with the costs and the deposit money, which the defendant ought to have paid at the first sale, amounted to 200/. 14,?. ; yet that the defendant had not paid, &c. At the trial it appeared, that at the first sale at which the defendant was declared the purchaser, there was no other real bidder, but that all the other bidders were puffers, employed by the plaintiff; that the defendant on discovering this refused to complete the contract ; that at the second sale there was one real bidder of the name of Gander, who offered 270/. ; and that at that sale the premises were bought in for the plain- tiff at 273/. For the defendant, it was objected, on the authority of Bcxiccll v. Christie, Cowp. 395, that, as all the other bidders at the first auction were puffers employed by the plaintiff, the whole was a fraud and imposition on the defendant, and that he was not bound to complete his contract. The jury found a verdict for the plaintiff; but upon a motion to set aside the verdict and to enter a nonsuit, the Court were of opinion that the sale was fraudulent, and that no action could be maintained ; and a nonsuit was ordered to be entered. And Lord Kenyan Ch. J. said ' ; In considering the nature of the plaintiff's demand, it becomes necessary to enquire what brought the different persons together at the auction, and on what terms they met when they went there to bid. The plaintiff's estate was advertised to be sold by auction, and one of the conditions of the sale was, that the highest bidder should become the purchaser : it was to be presumed also, that no fraud was to be practised on those who were present, to induce them to bid more than they were inclined to *offer. At this sale the defendant bid a certain sum, and afterwards refused to complete his purchase. Now, if there were no fraud in this transaction, the plaintiff has a right to call on the defendant in a court of justice for a satis- faction for nonperformance of the agreement : but it appeared at the trial, that the whole transaction was bottomed in fraud ; it was fraud from the begin- ning to the end ; the parties did not meet on equal terms ; several other persons besides the defendant bid, who represented themselves as em- barking on their own judgment ; but it afterwards turned out that this was false, and that this was an imposition practised by the plaintiff on the defendant ; for all those other persons were authorized by the plaintiff to bid for him. I will not go into the general reasoning on this subject, be- cause it is very ably stated by Lord Mansfield, in the case alluded to. Only part of that reasoning has now been adverted to by the plaintiff's counsel ; but *134 134 Of the Sale of Goods by Public Auction. [Part II. the rest of it is applicable to this case. The whole of that reasoning is found- ed on the noblest principles of morality and justice, principles that are calcu- lated to preserve honesty between man and man. The acts of parliament that have been referred to, did not intend to interfere with this point, but to leave the civil rights of mankind to be judged of as they were before. In the case cited, Lord Mansfield mentioned an instance in which the owner may legally and fairly bid at the auction, namely, where, before the bidding begins, he gives public notice of his intention ; and in such a case no duty is to be paid under the acts of parliament that have been referred to. The circumstance of puffers bidding at auctions has been always complained of; if the first case of this kind had been tried before me, perhaps I should have hesitated a little be- fore I determined it ; but Lord Mansfield's comprehensive mind saw it in its true colours, as founded in fraud ; he met the question fairly, and made a precedent which I am happy to follow." If a party at a public sale become the highest bidder by any improper con- duct or representation, which has the effect of 'deterring others from bidding, the sale is void as against such party. Thus, in the case of Fuller v. A bra- hams,{n) where it was proved, that a barge being put up for sale by auction, the plaintiff addressed the company present, saying, he had a claim against the late owner, by whom he said he had been ill-used ; whereupon no one offered to bid against the plaintiff ; but the auctioneer refusing to knock down the barge upon the plaintiff's single bidding, a friend of the plaintiff's then bid a guinea more ; and the plaintiff then made a second and higher bidding, amounting, however, to only one-fourth of the prime cost of the barge. The auctioneer being indem- nified by the vendor, who had taken the barge in execution, refused to deliver the barge to the plaintiff. The Court were clearly *of opinion, that a sale under these circumstances could not be supported. We have already seen,(o) that an auctioneer is considered in law as an agent both for the buyer and the seller. But if he sells goods, and do not dis- close his principal, he is liable to an action at the suit of the purchaser for the completion of the contract of sale, (p) Where several distinct lots are sold at the same auction to the same person, each lot is a distinct contract, (q) And an auctioneer has such a special property in goods sold by him, as will enable him to maintain an action for the price of the goods against the vendee, even though the goods were sold at the house of the auctioneer's employer, and were known to be his property.(r) But if an auctioneer sell the goods of B. as the goods of A. and the buyer pay the price to A. the auctioneer cannot re- cover the price from the buyer, (s) Where no payment, however, is made by the buyer, and the auctioneer bring an action against him for the price of the goods, the buyer may set off a debt due from A. to him.(<) (82) (n) 3 Brod. & Bing. 116. (r) Williams v. Millington, 1 H. Bl. 81. (o) Ante, 103. (s) Coppinv. Walker, 7 Taunt. 237. (;>) Hanson v. Roberdeau, Peake, 120. (t) Coppin v. Craig, Ibid. 243. q) Emerson v. Meelis, 2 Taunt. 38. I (82) An action may be maintained by a factor, for the price of goods by him eold ; and »135 Chap. 1.] Of the Sale of Goods by Public Auction. 135 It was also noticed in a former part of this chapter, (m) that a clerk of an auctioneer is not authorized to act in the absence of his master as agent for the vendor, unless the vendor empowers him so to do. And the authority of an auctioneer, as agent, is put an end to by the completion of the sale ; and nothing done by him afterwards relative to the subject-matter of it, will bind his principal.(u) So, verbal declarations made by the auctioneer contrary to the printed conditions of sale, are of no validity, and cannot be admitted in evidence to contradict the printed conditions ;(w) for the printed conditions of sales by auction are the terms of the contract between the buyer and seller, and are in all cases binding on the parties ; and they are sufficiently made known to the bidders by being posted up in the public sale room under the auctioneer's box. (x) The sales of the East India Company being subject to a regulation that any buyer not making good the remainder of his purchase-money on or before the day limited for such payment, shall forfeit the deposit, " and shall be rendered incapable of buying again at any future sale until he shall have given satisfac- tion to the court of directors." The term " satisfaction" was held to mean pecuniary compensation for the non-performance of his agreement to pay on the appointed day ;(y) and that a buyer having made default on the day, but after- wards, within a further time given to him by the company, paid the remainder of the *purchase-money, with interest, might maintain an action against the company for refusing to allow him to become a bidder at their sales ; such sales being by 9 & 10 W. 3. c. 44. s. 69. declared to be public and open sales. Where the conditions of sale by auction were, that the goods should be clear- ed away at the expence of the buyer in 14 days, the price to be paid on or before delivery ; and that if any lots remained uncleared after the time allow- ed, the deposit-money should be forfeited, the goods resold, and the loss on the resale made good by the purchaser. The broker gave a bought note, which allowed 14 days for receiving and delivery. And it was held,(z) that the buyer only had 14 days to take away the goods and that the seller was bound to deliver them immediately. By the statutes 17 Geo. 3. c. 50. s. 10., and 19 Geo. 3. c. 56. s. 12., it is enacted, that if the owner of any estate, goods, or effects, put up to auction, (it) Ant", 103. (y) Eagleton v. The East India Company, (v) Seton v. Slade, 7 Ves. jun. 276. 3 Bos. & Pul. 55. (w) Gxtnnis v. ErhaH, 1 H. Bla. 2S9. (z) Ante, 109. (x) Mesnard v. Mdridge, 3 Esp. 271. also, the principal may take the collection into his own hands, and sue in his own name. Girard v. Taggart, 5 Serg. & R. 27. So, where goods have heen sold hy a licensed auction- eer, the principal may maintain an action in his own name against the purchaser, whether the action be brought for the price of the goods, or for damages for refusing to take and pay for them. Id. p. 19. By this decision, the case of Willing v. Rowland, cited 4 Dall. 106, in note, and also in 3 Yeates, 342, was overruled. It seems, that the principal has no power to control the avails of sales at auction, as to the amount of duties, and the commissions of the auctioneer. Girard v. Taggart, 5 Serg. & R. 29, 30. 5 fa #136 136 Of the Delivery of Goods Sold. [Part II. shall become the purchaser by himself or his agent, without fraud, the commis- sioners of Excise, 6fc. shall be authorized to make an allowance to such owner of the duties arising on such biddings, provided notice be given to the auctioneer before the bidding, both by the owner and the agent, of the appointment of the latter ; and provided such notice be verified on the oath of the auctioneer, ■ as well as the fairness of the transaction to the best of his knowledge and belief. And by statute 28 Geo. 3. c. 37. s. 20., the notice to the auctioneer is required to be in writing ; but by 42 Geo. 3. c. 93., a notice by the steward or known agent of the owner is sufficient. And by 19 Geo. 3. c. 56. s. 11. if any sale by auction of estates or goods shall be rendered void by the person for whose benefit such estate or goods were sold, having no title, the Commis- sioners of Excise, or Justices of Peace, are authorized to relieve the party from their payments. (a) 10. OF THE ACTUAL OR SYMBOLICAL DELIVERY OF GOODS SOLD, EITHER TO THE VENDEE PERSONALLY, OR AT HIS PREMISES, OR TO A PARTICULAR CARRIER, WHARF, OR OTHER PLACE; AND AT WHOSE RISK THEY ARE WHILST IN THEIR TRANSIT ; AND OF THE VENDOR'S RIGHT TO RECOVER THE PRICE. Upon a sale of goods, the vendee either takes them away himself, or sends for them at his own expense ; or the vendor either delivers them to the ven- dee's premises, or to some particular carrier, or wharf, or other place either agreed upon, or according to the known and general usage of trade(83) and the expence and risk of the conveyance is usually borne by the vendee. There- fore, if a person orders goods of a *trader living at a distance and directs that they shall be sent to him by a carrier or other conveyance, without nam- ing any one in particular, a delivery of the goods to a known carrier, or trading vessel going either to the town or nearest place to where the vendee resides will, in effect, amount to a delivery to the vendee, in whom the property is im- mediately vested ;(84) and he must stand all risk of conveyance : and he alone (a) See 51 Geo. 3. c. 95. s. 1. (83) An offer or readiness to deliver goods, may be equivalent to an actual delivery : As where A. being indebted to B. by a promissory note, for 1167 dollars, it was agreed, in writ- ing, between them, that A. should deliver to B. so much coal at 10 dollars per chaldron, as would amount to the sum due on the note ; but no time or place for the delivery, was stipu- lated. A. had coal in his yard, of the requisite quantity and quality ; and immediately after the time of the agreement, and at other times, tendered to B. the coal in satisfaction of the note; B. made no objection to the place or mode of delivery, but said, atone time, he would send and take them away ; and at another, that he was not ready to receive them ; and finally, neglected to take them. In an action, afterwards brought by B. against A., to reco- ver the amount of the note; it was held, that the agreement for the delivery of the coal, was valid ; and that the tender of the coal by A., amounted to a delivery, and was a sufficient bar to the plaintiffs' action. Coit v. Houston, 3 J. C. 243. See Babcock v. Stanley, 1 1 J. R. 178. (84) An actual delivery of goods, or of apart of them, is not always required by the stat- ute of frauds ; but a constructive delivery may be sufficient. The circumstances, however, attending the transaction, ought to be so strong and unequivocal, as to leave no doubt of *137~ Chap. 1.] To the Vendee or to a Carrier, <$c. 137 can maintain an action for any injury done, or other accident happening to the goods in their transit, (b) And, so where goods are sent abroad, the property vests in the consignee from the time they are shipped. (c) The only exception to the purchaser's right over the goods is, that the vendor, in case of the former becoming insolvent, may stop them in transitu. (-) Houlditch v. Desanges, 2 Stark. 337. But see Dyer 29. b. 6 East 614. (5) 5 Terra Rep. 218. n. (/>) Dyer 30. a. (t) Vide 3 T. R. 464. and see 6 East Rep. (q) 3 P. Wms. 185. 27. in notis. (95) See Palmer v. Hand, 1 3 J. R. 434., wherein the principle laid down in the text, is applied : And if, during the course of delivery of goods sold, to be paid for on delivery, and before the delivery is completed, the vendee sell or pledge the goods to a third person, for a valuable consideration, without the knowledge of the original vendor, the lien of the latter for the price of the goods, will not be affected, and he may recover the goods, or their value, from the subsequent purchaser. Id. (96) See Stubbs v. Lund, 7 Mass. Rep. 453., and Ilshy v. Stubbs, 9 Mass. Rep. 65., wherein the right of stoppage in transitu is fully and ably discussed. See also Scholfield v. Bell, 14 Mass. Rep. 40. Wood v. Roach, 2 Dall. 180. Howntt %■ Co. v. Davis $■ Chalmers, 5 Munf. 34. The Merrimack, Kinnuel fy Jllbert and W. 4- J. Wilkins, Claimants, S Cranch 317, 327. Warren v. Sproule, 2 Marsh. 528. Chapman v. Lalhrop, 6 Cowen, 110. Parker 4- al. v. M'lyer fy al. 1 Des. 274. The doctrine as to stoppage in transitu, is applicable only to cases of insolvency ; and presupposes, not only that the property of the goods has passed to the consignee, but that the possession is in a third person during the transit. It cannot be applied to a case where the actual or constructive possession is in the shipper, or his ex- clusive agents. The San Jose Indiano, 2 Gallie. 268, 294, 295. S. C. 1 Wheat. 208. 20 *1S8 153 Of the Vendor's Right [Part II. tract of sale ; and therefore upon a tender of the price, and a readiness on the part of the vendee to perform the contract, the vendor is bound to deliver up the goods, (w) And so, on the other hand, if the vendor offers to deliver up the goods to the vendee, he may afterwards maintain an action against him for the price. (v) The general rule of law upon this subject is very clearly laid down in the case of Ellis v. Hunt,(w) which was an action of trover ; and the question came before the Court of King's Bench, upon a special case, which stated, that on the 31st of Oct. 1788, Moore the bankrupt, ordered the goods in ques- tion from the plaintiffs, who were manufacturers at Sheffield ; and on the 14th of November following, they were sent by RoyWs waggon, directed to the bankrupt in London ; the waggon being overloaded, the cask was taken out at Stamford, in its way to town, and put into the defendant Hunt's waggon, which brought it to the Castle and Falcon Inn in London on the 22nd of No- vember 1788. *The plaintiffs drew a bill on the bankrupt for part of the value of the goods, which bill was never paid. The cask and files were, on their arrival in town, immediately attached by Messrs. Fenton and Company, cred- itors of the bankrupt, by process of foreign attachment issued out of the May- or's Court of London ; the casks remained at the inn charged with such at- tachment, so far as the same could charge it. On the 15th of November, a docquet was struck against Moore; and on the 18th, a commission of bank- ruptcy issued against him, on which he was declared a bankrupt, and the other defendants were chosen his assignees. On the 24th of November a provision- al assignment was executed bv the commissioners to John Wells, the messen- ger under the commission, who, on the same day, demanded the. goods in question from the defendant Hunt, the carrier, and put his mark upon the cask, but did not take the goods away. On the 28th of November, the plaintiffs wrote a letter to the agent of Roylc's waggon, directing him, in case the goods were not delivered, to keep them in his warehouse, as they had heard that Moore was become a bankrupt. On the 13th of December, the plaintiffs de- manded the cask and files of Moll, the master of the Castle and Falcon, and offered to pay the carriage, and to indemnify him, which Mott refused ; and upon the attachment being withdrawn, he delivered up the goods to the defen- dants, the assignees, of whom they have since been demanded ; but they have refused to deliver them up. The Court determined, that the plaintiffs were not entitled to stop the goods ; and therefore could not maintain the present ac- tion : and Lord Kenyon Ch. J. said, The doctrine of stopping goods in transitu is bottomed on the case of Snee v. Prescot,(x) where Lord Hardwicke estab- lished a very wise rule, that the vendor might resume the possession of goods consigned to the vendee before delivery, in case of the bankruptcy of the vendee. On this all the other cases are founded. There have indeed been cases, where (u) Ibid. 469. Shipping. 351. Whitlaker on Stoppage in (t>) Kyn r v. Suwercropp, 1 Campb. 109. transitu. Long on Sales, ch. 8. (:r i 3 Term Rep. 464. see also Abbott on (x) 1 Atk. Rep. 248. * Chap. 1.] To stop Goods Sold, in Transitu. 154 nice distinctions have been taken on the fact, whether the goods had or had not got into the possession of the vendee ; but they all profess to go on the ground of the goods being in transitu when they were stopped. As to the necessity of the goods coming to the " corporal touch" of the bankrupt, that is merely a figurative expression, and has never been literally adhered to ; for there may be an actual delivery of the goods without the bankrupt's seeing them ; as, a delivery of the key of the vendor's ware-house to the purchaser. In order to decide this case, it is material to attend to the dates. On the 24th of November the provisional assignment was made to Wells, who on the same day demanded the goods in question of the defendant Hunt, and put his mark on the cask. Now it is said, that this should have been done by the bankrupt himself: but by *the assignment he was stripped of all his property, which was then vested in the provisional assignee ; therefore, if a corporal touch were necessary to de- feat the right of the vendors, it took place here. It is true, that the provisional assignee did not alter the situation of the goods ; but they were then arrived at the end of their destined journey, and deposited in a place where they would have remained till the bankrupt could have carried them to a warehouse of his own. All this happened on the 24th of Nove?nber ; and it was not until the 28th of that month that the vendor wrote to countermand the delivery of the goods ; but that was too late ; for the goods were no longer in transitu ; they were then in the possession of the party to whom they were consigned, or of those who represented him. In cases of this sort, we cannot but feel for the situation of the manufacturer, but it is such as they are necessarily subject to from their mode of dealing : however, the severity of the case cannot induce us to break through the rule of law." And Buller Just, said, " I am not disposed to disturb or to lessen the authority of any of the cases that have been decided on this subject ; but none of them could justify the vendor in this case in taking back the goods. In the former cases the line has been precisely drawn ; and they all turn on the question, whether or not there had been an actual delivery to the bankrupt. It is of the utmost importance to adhere to that line ; for if we break through it, we shall endanger the authority of the cases that hive been already decided, and shall fritter away the rule entirely. In one of the cases cited, Lord Mansfield took the distinction between an actual and a con- structive delivery to the vendee. There may be cases where, as between the buyer and seller, if no bankruptcy or insolvency happen, the goods are consid- ered in the possession of the buyer, the instant tiiey go out of the possession of the vendor ; as if A. order goods from 13. to be sent by a particular carrier at his own risk, the delivery to the carrier is a delivery to the vendee to every other purpose ; but still if he become a bankrupt, before the carrier actually deliver them to him, I should hold that the vendor might seize them ; because that is only a constructive delivery to the vendee ; but an actual delivery is ne- cessary to divest the vendor's right of stopping the goods in transitu. It is clear, that bankruptcy itself does not put an end to the contract ; and if not, the right of the vendor to seize goods in transitu is founded only on equitable prin- *155 155 Of the Vendor's Right [Part 11. ciples. It is a right with which he is indulged on principles of justice, orig- inally established in courts of equity, and since adopted in courts of law. But, in order to avail himself of it, he must stop the goods before they get into the actual possession of the vendee : but in this case there is the strongest evidence of the consignee's taking actual possession of the goods, by his assignee put- ting his mark on them. It was said by the plaintiff's counsel, that the carrier would have been liable in an action by the vendor ; *but he would not have been liable in the character of carrier ; for the goods had got to the end of their destined journey ; but he would have been liable only as a warehouse- keeper ; in respect of the recompense which he was to receive for warehouse- room. But the instant the provisional assignee put his mark on the goods, the warehouseman became the agent or servant to the bankrupt." Upon a complete delivery of part of one entire cargo to the consignee, the transitus is ended, and the consignee cannot stop the remainder.(y) But where a quantity of iron had been sold and sent by a carrier, who had actually delivered part of them on the wharf of the vendee ; at which place, however, the iron was to be weighed ; but hearing of the insolvency of the latter, he dis- continued a further delivery, and re-shipped that part so deposited on the wharf into his barges, and detained the whole for his freight : The Court held, that the delivery was not so complete as to take away the vendor's right of stoppage in transitu. Thus, in the case of Crawshayv. Eades,(z) which was an action of trover ; and the facts were, that on the 26th January 1822, the plaintiffs loaded at Brentford, on board two barges belonging to the defendant, 348 bars of iron, and delivered the following ticket, " Shipped 348 bars of iron, weight 205. 0. 20. for Messrs. Homblowcr, Brierly-hill, near Stourbridge, from R. and W. Crawshay and Co." The iron was sent to Homblowcr on sale. On the 8th February, the barges with the iron arrived at Hornblower's works, and on the 9th a part out of each of the barges was landed upon his wharf. The defen- dant then hearing that Homblowcr was gone off, enquired of his confidential clerk, who informed him that it was all over with the Briefly works, and told him, that he the defendant had better take the iron on his own account ; the defen- dant in consequence re-shipped the part that had been landed, and conveyed the whole to his own premises. The practice had been to deliver to the carrier, when the iron was shipped a ticket specifying the quantity, and upon arrival at Hornblower's wharf to weigh it, and to give to the carrier a receipt for the quantity so weighed and delivered. Upon this evidence, a verdict was found for the plaintiff'; but amotion was afterwards made for a new trial, founded upon an affidavit, stating that it had never been the usage to weigh the iron, or give a receipt for it at Hornblower's wharf ; and the witness, who at the trial gave evidence to that effect, now swore that it was by mistake. The Court, however, refused the rule, and determined that the delivery of the iron had not been complete, and that the vendor's right to stop in transitu was not taken (y) Slubeyx. Hnitcard, 2 H. Blac. 504. 1 (z) 1 Barn. &Crcs. 131. New Rep. 69. *156 Chap. 1.] To stop Goods Sold, in Transitu- 156 away. And Bayley Just, said, " There can be no doubt that wherever there is a complete delivery of part of one entire cargo to the consignee, the transitus is ended, and the consignor cannot stop the remainder. *But in this case there was no complete delivery of any part of the iron to Hornblower ; the goods were in different barges, and a part of the iron was taken out of each barge, and landed upon Hornblower' 's wharf; but he had not taken possession of it, nor was it weighed ; so that the amount of the freight due to Eadcs might be ascertained. Now, independently of any particular usage, a carrier has, by the common law, a right to insist that the goods shall be weighed, in or- der, first, that it may be ascertained for his own security, that he has delivered the precise quantity entrusted to him ; and secondly, that the amount of the freight, if it depend upon the weight, may be ascertained. When part of the iron was landed upon the wharf, it might more properly be considered as in a course of delivery, than as actually delivered. By placing it upon the wharf, the carrier did not mean to assent to Hornblower'' s taking it away without pay- ing the freight : besides a carrier has a lien on the entire cargo, for his whole freight; and until the amount is either tendered or paid, the special property which he has in his character of carrier does not pass out of him to the ven- dee, unless, indeed, he does some act to show that he assents to the vendee's taking possession of the property before the freight is paid. It is clear, upon the facts given in evidence at the trial, that the carrier never did assent to Hornbloiver's taking possession of the property ; for he re-ships the part of the iron that was landed, as soon as he is informed that the freight is not likely to be paid. In order to divest the consignee's right to stop in transitu, there ought to be such a delivery to the consignee, as to divest the carrier's lien upon the whole cargo. I am of opinion, therefore, that the entire freight not having been tendered or paid, the delivery in this case was not complete as to any part ; that the special property remained in the carrier, and that the con- signor was not deprived of his right of stoppage in transitu.'''' If, however, in the course of the conveyance of goods from the vendor to the vendee, the latter be allowed to exercise any act of absolute ownership over them, this is sufficient to reduce the goods into his actual possession, and to put an end to the vendor's right to stop them.(«) So, the transit may also be put an end to, either by the goods arriving at the shop or warehouse of the vendee, or bv being taken into his immediate personal possession ; and in either case the right of the vendor to stop the goods in transitu is gone. Payment of part of the price of goods by the consignee, does not take away the consignor's right to stop them in transitu, (b) So, where the *vendee accepts bills of exchange for the price of the goods, and becomes bankrupt before the bills of exchange are paid, the consignor may stop the goods in transitu ; for (a) Wright v. Laices, 4 Esp. 82. Mills sea, under a bill of lading ; and in the lattpr v. Ball, 2 Bos. & Pul. 457. Sed vid. Hoist case it id said, that the consignor's right to v. Pound, 1 Esp. 240. ; and .lbbott on Ship- stop in transitu continues till the termination ping 362., where a distinction is taken be- of the voyage. tw/een the carriage of goods by land and by (b) Hodgson v. Loy, 7 Term Rep. 440. *157 *158 158 Of the Vendor's Right [Part II. though the bills may be proved under the commission, that would only amount to a part-payment ; and it will make no difference though the vendor may have indorsed the bills to a third person, (c) But in the case of Davis v. Reynolds, (d) where it appeared that the purchaser of goods after having given his acceptance for the price of them, and before the bill became due, and while the goods were in transitu, sold them for a valuable consideration, but without indorsing the bill of lading to the purchaser; Lord Etlenboroughiuled, that the purchaser had completed his title to the goods by accepting the bill of exchange, and that the sale by him defeated the seller's right to stop the goods in transitu. In order to justify a right of stoppage of goods in transitu, it is necessary that the consignee should become bankrupt or be insolvent : for if goods are sent by order of the consignee, on his account and at his risk, and the consignee draws bills of exchange on him for the price, and indorses and transmits the bills of lading, the consignor cannot take possession of the goods at the place of destination, and insist upon immediate payment, as the condition of delivery ; the consignee being willing to accept the bills, and not having failed in his cir- cumstances, (e) Goods delivered by the vendor to a particular wharfinger or packer named by the vendee, to be forwarded to the latter, may be stopped in transitu before they get into his actual possession. (/) And notice by the ven- dor to a wharfinger, packer, or carrier, not to deliver the goods to the vendee, is sufficient, without making an actual seizure, (g) So, the right of a consignor to stop goods in transitu is not defeated by the goods being attached while in their transit, by process out of the Lord Mayor's Court, at the suit of a creditor of the consignee. (A) So, in the case of Buck v. Hatfield,(i) where goods were sold free on board ; and upon their shipment, the agent of the vendors tendered to the mate (the captain being absent) a receipt, by which the goods were acknowledged to be shipped on account of the vendors, which the mate kept, but refused to sign ; and on the following day, signed bills of lading to the order of the vendees : it was determined, that the transit was not at an end, but that the vendors, on the insolvency of the vendees, were entitled to stop the goods : and in this case Abbott Ch. J. said, " If the delivery on board the vessel to the vendees had ever been completed, the transitus would have been at an end ; but when it was made at first, it was accompanied by the demand of a receipt from the mate, who represented *the captain. Now, it was important for the vendors to have that receipt, for so long as they retained possession of it, they were ena- bled to interpose a delay as to the delivery of the rum to the vendees, and re- tain a lien upon it. The captain ought not to have signed bills of lading until that receipt had been handed over to him by the vendees, after having been de- livered to them by the vendors. (c) Feist v. Wray, 3 East, S3. (?) Lett v. Cowley, 7 Taunt 169. ( 2 Es P- lle P- 61 3- (o) Stovcldv. Hughes, 14 East, 308. (m) 13 East Rep. 525. 2 M. & S. 397. 1 (p) Scott v. Pettit, 3 Bos. &. Pul. 469. Marsh, 252. 4 Campb. 237. 5 Taunt, 617. (q) Jfoble v. Mams, 7 Taunt. 59. Et vide ante 136. As to what shall consti- (?) 5 East, 175. tute a complete delivery, so as to vest the (s) Zwinger v. Samuda, ante, 150. Lucas absolute property in the buyer. v. Darrein, 7 Taunt. 278. Spears v. Travers, (n) 3 Term Rep. 468. 1 Campb. 452. 2 4 Campb. 251. Campb 243. 1 New Rep. 69 7 Taunt. (0 Hanson v. Meyer, 6 East, 614. Sfo- 278. And see Holt's Ni. Pn. Cas. 18. 22. in bey v. Heyward, 2 H. Bl. 504. # 160 lbO Of the Sale and Transfer of Goods [Part II. person for a valuable consideration, may refer an absolute right and property upon sueh assignee, indefeasible by any claim on the part of the consignor ;(97) subject, however, to this restriction, that the assignment should be made bona fide to all parties, and without notice to the assignee that the vendee is insol- vent, (u) But if there be no consideration, or there appear any fraud in the assignment on the part of the assignee, with a view not only of depriving the vendor of his right to stop the goods in traiisitu, but also of the price of the goods, the assignment will be invalid as against the vendor, (v) So, if the as- signee, though for valuable consideration, know of the vendee's insolvency at the time of his accepting the assignment, he can gain no legal title to the goods thereby, as against the vendor.(w) 12. OF THE SALE AND TRANSFER OF GOODS BY DELIVERY OR IN- DORSEMENT OF A BILL OF LADING. In mercantile transactions between merchants residing in different countries, or at ports and places remote from each other in this country, when a cargo of goods is shipped for the vendee upon a contract of sale, or where a consign- ment is made to a factor or correspondent for sale, the vendor or consignor usu- ally causes a bill of lading to be made out in three parts, each of which is signed by the captain of the vessel in which the goods are shipped ; and the consignor generally forwards one of them to the vendee or consignee, and another is sent on board the ship with the goods, and the third is kept by the consignor himself: and it is said (x), that the master should take care to have another part for his own use. Now, this bill of lading is a contract by the master, on behalf of himself and his owners, to convey the goods to the place of destination, and to make a true and right delivery thereof either to the con- signee or his assigns, or to the consignor or his asssigns. Sometimes no person is named as consignee, but the terms of the instrument are, " To be delivered, &c. unto order, or assigns," which words are generally understood to import an engagement on the part of the master, to deliver the goods to the person to whom the ship- per or consignor shall order the delivery, or to the assignee of such person.(^) And it is observed, (a) that bills of lading sometimes, espe- cially in time of war, contain a false account and risk, and do seldom, if ever, bear upon the face of them any indication of the purpose of the indorsement. In order to designate the kind of goods shipped, a corresponding mark or (u) Lickbanow v. Mason, 6 East, 28. in (to) 4 Campb. 31. notis, 2 East, 63. S. C. Vertue v. Jewell, 4 (x) Abbott on Shipping, ch. ii. s. 3. Campb. 31. (*) Abbott on shipping, 218. (») Waring v. Cox, 1 Campb. 369. Halo- (a) Per Lord Loughborough, 1 H. Bl. 362. mons v. Nissen, 2 Term Rep. 681. (97) See Hollingsworth v. Jfapier, 3 Caines, 182. Hunn v. Bowne, 2 Caines, 38. Walter v. Ross, C. C. April 1809, MS. Rep. Whart. Dig. 593. Summeril v. Elder, 1 Binn. 101. Stubbs v. Lund, 7 Mass. Rep. 453. Ilsley v. Stubbs, 9 Mass. Rep. 65. ♦161 Chap. 1.] By Bill of Lading. 161 description, with those put upon the casks, chests, or packages on board, is in- serted in the bills of lading. It was at one time doubted whether the indorsement of a bill of lading: in blank, and the delivery of it to the consignee, transferred the legal property of the goods to him, and to an indorsee ; but that point is now settled, that such a transfer does vest the property in the consignee, or bona fide indorsee for a valuable consideration. (98) And the law on this subject was most ably and clearly stated in a very elaborate and learned opinion delivered by Buller Just. in the House of Lords, in the case of Lickbarrow v. Mason, (b) where his lord- ship, in taking a review of the previous cases, says, " that though Lord Mans- field at one time thought that there was a distinction between bills of lading indor- sed in blank and otherwise, yet he afterwards abandoned that ground. And in Salomons v. Nissen, (2 Term Rep. 674.) the bill of lading was to order or assigns, and the indorsement in blank ; but the court held it to be clear, that the property passed. He who delivers a bill of lading indorsed in blank to another, not only puts it in the power of the person to whom it is delivered, but gives him authority to fill it up as he pleases ; and it has the same effect as if it were filled up with an order to deliver to him." And upon the question, whether at law, the property of goods at sea passes by the indorsement of a bill of lad- ing, his lordship said, " Every authority which can be adduced from the earli- est period of time down to the present hour, agree that, at law, the property does pass as absolutely and as effectually as if the goods had been actually delivered into the hands of the consignee. In 1690, it was so decided in the case of Wiseman v. Vandcputl, 2 Vern. 203. In 1697, the Court determined again in Evans v. Marlett, that the property passes by the bill of lading. That case is reported in 1 Ld. Raym. 271., and in 12 Mod. 156., and both books agree in the point decided. Ld. Raymond states it to be, that if goods by a bill of lading are consigned to A., *A. is the owner, and must bring the action ; but if the bill be special, to be delivered to A., to the use of B., B. ought to bring the action ; but if the bill be general to A., and the invoice only shews that they are on account of B., (which I take to be the present case) A. ought always to bring the action ; for the property is in him, and B. has only a trust. And Holt Ch. J., says, the consignee of a bill has such a property, as that he (6) 6 East Rep. 20. 1 H. Bl. 357. 2 Term learned judges in this case, has been confirm- Rep. 63. In this case the judges differed in ed by many subsequent cases ; particularly opinion; and no final judgment upon the Cuming v. Brown, 9 East, 506., and Newsom question was given. But the law, as deliver- v. Thornton, 6 East Rep. 17. ed by Mr. Just. Buller, and several other (9S) See Chandler v. Belden, 13 J. R. 157. Ryberg v. SneU,C, C.Oct. 1809, MS. Rep. Whart. Dig. 593, 594. A. being indebted to B., gave him as security, a bill of lading in- dorsed in blank, of goods shipped to a foreign port. B. took no measures to obtain posses- sion of the goods. C, another creditor, without notice of B.'s right, attached the goods, which were condemned as the property of A., and the avails were received by C. : Held, that B. lost his right to the goods by his negligence ; and could not recover the proceeds in the hands of C. Bank of North America v. M'Call, 4 Binn. 371. See Dawes v. Cope, 4 Binn. 258. 21 *162 162 Of the Sale and Transfer of Goods [Part II. may assign it over : and Shower said, it had been so adjudged in the Ex- chequer. In 12 Mod. it is said, that the Court held that the invoice signified nothing ; but that the consignment in a bill of lading gives the property, except where it is for the account of another, that is, where on the face of the bill it imports to be for another. In Wright v. Campbell, in 1767, (4 Burr. 2046.) Lord Mansfield said, " If the goods are bona fide sold by the factor at sea, (as they may be where no other delivery can be given,) it will be good, notwith- standing the stat. 21 Jac. 1. The vendee shall hold them by virtue of the bill of sale, though no actual possession be delivered ; and the owner can never dispute with the vendee, because the goods were sold bona fide, and by the owner's own authority." His Lordship added, (though that is not stated in the printed report) that the doctrine in Lord Raymond was right, that the property of goods at sea was transferable. In Fearon v. Bowers, in 1753, Lord Ch. J. Lee held, that a bill of lading transferred the property, and a right to assign that property by indorsement ; but that the captain was discharg- ed by a delivery under either bill. In Sneev. Prescott, in 1743, (1 Atk. 245.,) Lord Hardwicke says, " Where a factor, by the order of his principal buys goods with his own money, and makes the bill of lading absolutely in the prin- cipal's name, to have the goods delivered to the principal, in such case the factor cannot countermand the bill of lading, but it passes the property of the goods fully and irrevocably in the principal." Then he distinguishes the case of blank indorsement, in which he was clearly wrong. He admits too, that if upon a bill of lading between merchants residing in different countries, the goods be shipped and consigned to the principal expressly in the body of the bill of lading, that vests the property in the consignee. In Caldwell v. Ball, in 1786, (1 Term Rep. 205.) the Court held, that the indorsement of the bill of lading was an immediate transfer of the legal interest in the cargo. In Hibbcrt v. Carter, in 1787, (1 Term Rep. 745.) the Court held again, that the indorsement and delivery of the bill of lading to a creditor, prima facie, conveyed the whole property in the goods from the time of its delivery. The case of Godfrey v. Furzo, (3 P. Wras. 185.) was quoted on behalf of the defendant. A merchant at Bilboa sent goods from thence to B., a merchant in London, for the use of B., and drew bills on B. for the mo- ney. The goods arrived in London, which B. received, but did not pay the money, and died insolvent. The merchant beyond sea brought his bill *against the executors of the merchant in London, praying that the goods might be accounted for to him, and insisting that he had a lien on them till paid. Lord Chancellor says, " When a merchant beyond sea consigns goods to a merchant in London, on account of the latter, and draws bills on him for such goods, though the money be not paid, yet the property of the goods vests in the merchant in London, who is credited for them, and consequently they are liable to his debts ; but where a merchant beyond sea consigns goods to a fac- tor in London, who receives them, the factor in this case being only. a servant or agent for the merchant beyond sea, can have no property in such goods, neither will they be affected bv his bankruptcy." And in another part of the •163 Chap. J.] By Bill of Lading. 163 learned Judge's argument, he further observes, " that the great advantage which this country possesses over most, if not all other parts of the known world, in point of foreign trade, consists in the extent of credit given on exports, and the ready advances made on imports ; but amidst all these indulgences, the wise merchant is not unmindful of his true interest, and the security of his cap- ital. I will beg leave to state in as few words as possible, what ie a very fre- quent occurrence- in the city of London. A cargo of goods of the value of 2000/. is consigned to a merchant in London, and the moment they are ship- ped, the merchant abroad draws upon his correspondent here to the value of that cargo, and by the first post or ship he sends him advice, and incloses the bill of lading. The bills in most cases arrive before the cargo, and then the merchant in London must resolve what part he will take ; if he accepts the bills he becomes absolutely and unconditionally liable ; if he refuse them, he dis- graces his correspondent, and loses his custom directly ; yet to engage for 2000/. without any security from the drawer, is a bold measure. The goods may be lost at sea, and then the merchant here is left to recover his money against the drawer, as and when he may. The question then with the mer- chant is, how can I secure myself at all events ? the answer is, I will insure, and then if the goods come safe I shall be repaid out of them, or if they be lost, I shall be repaid by the underwriters on the policy ; but this cannot be done unless the property vest in him by the bill of lading, for otherwise his policy will be void for want of interest, and an insurance in the name of the for- eign merchant would not answer the purpose. This is the case of the mer- chant who is wealthy, and has the 2000/. in his banker's hands, which he can part with, and not find any inconvenience in so doing. But there is another case to be considered, viz. suppose the merchant here has not got the 2000/., and cannot raise it before he has sold the goods ; the same considerations arise in his mind as in the former case, with this additional circumstance, that the money must be procured before the bills become due, then the question is how can that be done ? If he have the property in the goods, he can go to market with the bill of *lading and the policy, as was done in Snee v. Prescolt, and upon that idea he has hitherto had no difficulty in doing so ; but if he have not the property, nobody will buy of him, and then his trade is undone. But there is still a third case to be considered, for even the wary and opulent merchant often wishes to sell his goods whilst they are at sea : I will put the case by way of example, that barilla is shipped for a merchant here at a time when there has been a dearth of that commodity, and it produces a profit of 25/. per cent., whereas upon an average it does not produce above 12/. ; the merchant has advices that there is a great quantity of that article in Spain intended for the British market, and when that arrives the market will be glutted, and the commodity much reduced in value ; he wishes, therefore, to sell it immediately, whilst it is at sea, and before it arrives, and the profit which he gets by that is fair and honourable ; but he cannot do it if he have not the property by the bill of lading. Besides, a quick circulation is the life and soul of trade, and if *164 164 Of the Sale and Transfer of Goods, fyc. [Part II. the merchant cannot sell with safety to the buyer, that must necessarily be re- tarded." So, in Newsom v. Thornton, (c) Lord Ellcnborough Ch. J. in delivering the judgment of the Court of King's Bench upon the same subject, says, " A bill of lading, indeed, shall pass the property upon a bona fide indorsement and deliv- ery, where it is intended so to operate, in the same manner as a direct delivery of the goods themselves would do, if so intended, but it cannot operate further. If a factor is in possession of goods, and sells them bona fide, the property passes by the delivery ; but not where he means only to pledge them, because it is beyond the scope of a factor's authority to pledge the goods of his princi- pal. The symbol then shall not have a greater operation to enable him to de- fraud his principal, than the actual possession of that which it represents. The principal who trusts his factor with the power to sell absolutely, shall so far be bound by his act ; but the defendants shall not extend the factor's act beyond what was intended at the time. I consider the indorsement of a bill of lading, apart from all fraud, as giving the indorsee an irrevocable, uncountermandable right to receive the goods, that is, where it is meant to be dealt with as an as- signment of the property in the goods, but not where it is only meant as a de- posit by one who had no authority to do so. And Lawrence Just, said, " In the case of Lickbarrow v. Mason, some of the Judges did indeed liken a bill of lading to a bill of exchange, and consider that the indorsement of one did con- vey the property in the goods in the same manner as the indorsement of the other conveyed the sum for which it was drawn. But when the case was be- fore the Exchequer chamber, there was much argument to shew, that in itself the indorsement of a bill of lading was no transfer *of the property, though it might operate as such, in the same manner as other instruments may be evi- dence of the transfer of property; as, if goods be sold by a merchant abroad to his correspondent here, and the bill of lading be sent to him indorsed, to deliver the goods to the vendee or his order ; there the transfer of the goods may be evi- denced by such indorsement, and if the vendee part with the property in the goods, while they are yet in transitu, and before his property in them is de- vested by the vendor's stopping them in transitu, and which assignment of the vendee's property may be evidenced in like manner by his indorsement to ano- ther, then, according to Lickbarrow v. Mason, tlie original vendor's right to stop them in transitu would be devested. Therefore, all that the case seems to have decided, is, that where the property in the goods passed to a vendee, subject only to be devested by the vendor's right to stop them while in transi- tu ; such right must be exercised, if at all, before the vendee has parted with the property to another for a valuable consideration, and bona fide, and by in- dorsement of the bill of lading giving him a right to recover them." Where there are several bills of lading, the person [who first "gets one of them by a legal title from the owner or shipper has a right to the consign- ee) 6 East Rep. 41. 165 Chap. 1.] Of Sales in Fairs and Markets Overt. 165 merit, (d) So, where a bill of lading has been indorsed bona fide as a security for a debt due to the indorsee from the consignee, the property in the goods mentioned in the bill of lading passes to the indorsee, even though it should ap- pear that, at the time of the indorsement, he knew the consignee had not paid for them.(e) A bill of lading, however, if given before the goods are shipped, is deemed fraudulent ; and the indorsement of such a bill will not legally pass the property in the goods even to a bona fide indorsee. (/) The property in goods for which the master of a ship has given bills of lad- ing, may be transferred by delivery, without indorsing the bill of lading ; and such transfer will be good against all the world, except a bona fide indorsee for a valuable consideration, (g) But no property passes even by indorsement without a valuable consideration. (A) We have before seen, that where an agent had purchased goods at Riga for his principal in England, and such goods were shipped on board the principal's own vessel as his goods ; though the agent sent bills of lading, indorsed in blank, to his correspondent in England, with instructions that if his principal did not accept his bills of exchange, the bills of lading should be indorsed over to the payees of the bills of exchange, which was accordingly done ; yet it was held, that the shipment of the goods passed the property absolutely in the vendee, it being his own ship, and rendered the indorsement of the bill of lading whol- ly inoperative, (i) *So, where the consignor of goods advised the consignee by letter , that he had chartered a certain ship on his account, and inclosed an invoice of the goods laden on board, which were then expressed to be for account and risk of the consignee, and also a bill of lading in the usual form, expressing the ^delivery to be made to order or assigns, he or they paying freight for the said goods according to charter-party ; and the letter of advice also informed the consignee, that the consignor had drawn bills on him at three months for the value of the cargo : it was determined by the Court of King's Bench, that the invoice and the bill of lading sent to the consignee, and the de- livery of the goods to the captain, vested the goods in the consignee, subject only to be devested by the consignor's right to stop the goods in transitu in case of the insolvency of the consignee, (j) 13. OF THE SALE OF GOODS, &c. IN FAIRS AND MARKETS OVERT. On this subject the general rule of law is, that all sales and contracts for any thing vendible in fairs or markets overt (i. e. open markets,) and for which a val- uable consideration is bona fide given by the vendee, is not only good as between the contracting parties, and transfers a complete property in the article sold, but (rf) Caldwell v. Ball, 1 Term Rep. 205. (g) Nathan v. Giles, 5 Taunt. 558. (e) Cumins; v. Brown, 9 East Rep. 506. (A) Waring x. Cox, 1 Campb. 369. 1 Campb. 104. (t) Ante, 152. (/) Osey v. Gardner, Holt,Ni. Pri. Cas. (j) Walley v. Montgomery, 3 East Rep. 405. 585. *16G 165 Of Sales in Fairs and Markets Overt. [Part II. is also binding against all persons, except the king, whether infants, femes covert, idiots or lunatics, persons beyond sea, or in prison, and whether they are possess- ed in their own right, or as executors or administrators ; and whether any toll be paid to the owner of the market or not, and however improperly the vendor may have possessed himself of the goods, (k) (99) And Mr. Just. Black- stone well observes, " That if upon sales of this description a bona fide purchaser was not to be made secure of his purchase, all commerce between man and man must soon be at an end." Fairs and markets overt are generally held on special days provided for particular towns by charter or prescription ; but in London every day, except Sunday, is market-day.(Z) The market-place, or spot of ground set apart by custom for the sale of particular goods, is also in the country the only market overt ; (m) but in London every shop in which goods are exposed publicly to sale, is market overt for such things only as the owner professes to trade in. (n) But a sale of goods in a shop in the Strand, or elsewhere out of London, has been said not to alter the property, (o) But Lord Hardwicke appears to have considered, that where the transaction is per- fectly fair on the part of the vendee, though the dealing is out of the pre- cincts of London, great allowances ought to be made in analogy to the above-mentioned customs ; and therefore, that the property of goods may be *changed and effectually transferred to the buyer by a bona fide sale in a shop out of London, whether the shopkeeper is the vendor or vendee, if the goods are of the kind in which he trades, (p) And the same privilege may by cus- tom be extended to a shop in Bristol, or elsewhere, (q) But a wharf in Lon- don is not within the custom, and is not a market overt for articles brought there: and therefore where goods were bona fide purchased at a public wharf, but the true owner afterwards claimed them, and brought trover against the vendee, it was held,(r) that he was entitled to recover, because the place of sale was not a market overt, and consequently no property passed. And so, in the commentaries upon the laws of England,{s) it is said, that " if my goods are stolen from me, and sold out of market overt, my property is not altered, and I may take them wherever I find them." So, where an agent pawns the goods of his principal, the latter may maintain trover against the pawnbroker, without either tendering the duplicate according to the stat. 39 & 40 Geo. 3. c. 99. s. 5., or the amount and interest for which the goods are pledged, (t) (k) 2 Inst. 713. 220. Com. Disr. tit. Mar- (7) But see Moore, 625. Com. Dig. tit. ket. E. Bac. Abr. tit. Fairs and Markets, E. Market. E. (/) Cro. Jac. 68. (r) IVilkinson v. King, 2 Campb. 336. (m) Godb. 131. Moore, 625. (n) 5 Rep. 85. 12 Mod. 521. (*) 2 Bl. Com. 449. Bacon's Use of the (0) Anon. 12 Mod. 521. Law. 158. (/)) Harris v. Shaio, Cas. Temp. Hardw. (t) Ptel v. Baxter, 1 Stark. 472. 349. (99) The common law maxim, that sales of chattels in market overture conclusive as to title, has not been adopted in this country. See Hosack v. Weaver, 1 Yeates, 478. Hardy v. Metzgar, 2 Yeates, 347. Easton v. Worth%ngton, 5 Serg. & R. 130. Mowrey v. Walsh, 8 Cowen, 233. Wheelwright v. Depeyster, 1 J. R. 471. Dame v. Baldwin, 8 Mass. Rep. 518. *167 Chap. 1.] Of Sales in Fairs and Markets Overt. 167 And it is expressly provided by statute 1 Jac. 1. c. 21., that the sale of any goods wrongfully taken to any pawnbroker in London, or within two miles thereof, shall not alter the property ; for this being usually a clandestine trade, is therefore made an exception to the general rule. And even in mar- kets overt, if the goods be the property of the king, such sale (though regular in all other respects,) will in no case bind him ; although it binds infants, feme co- verts, idiots or lunatics, and men beyond sea or in prison ; or if the goods be stolen from a common person, and then taken by the king's officer from the felon, and sold in open market, still if the owner has used diligence in prosecut- ing the thief to conviction, he loses not his property in the goods. So, like- wise, if the buyer knoweth the property not to be in the seller ; or there be any other fraud in the transaction ; if he knoweth the seller to be an infant or feme covert, not usually trading for herself: if the sale be not originally and wholly made in the fair or market, or not at the usual hours ; the owner's prop- • erty is not bound thereby.(w) If a man buys his own goods in a fair or market, the contract of sale shall not bind him so that he shall render the price, unless the property had been previously altered by a former sale.(r) And notwithstand- ing any number of intervening sales, if the original vendor, who sold without having the property, comes again into possession of the goods, the original owner may take them, when found in his hands who was guilty of the first breach of justice, (w) *By which wise regulations, the common law has secured the right of the proprietor in personal chattels from being devested, so far as was consistent with that other necessary policy, that purchasers, bona fide, in a fair, open, and regular manner, should not be afterwards put to difficulties by reason of the previous knavery of the seller. But there is one species of personal chattels, in which the property is not easily altered by sale, without the express consent of the owner, and those are horses, (a:) For a purchaser gains no property in a hoise that has been stolen, unless it be bought in a fair or market overt> according to the directions of the statute 2 P. & M. c. 7. and 31 Eliz. c. 12., by which it is enacted, " that the horse shall be openly exposed, in the time of such fair or market, for one whole hour together, between 10 in the morning and sun-set, in the public place used for such sales, and not in any private yard or stable : and afterwards brought by both the vendor and vendee to the book-keeper of such fair or market ; that toll be paid, if any be due ; and if not one penny to the book- keeper, who shall enter down the price, colour, and marks of the horse, with the names, additions, and abode of the vendee and vendor ; the latter being properly attested. Nor shall such sale take away the property of the owner, if within six months after the horse is stolen, he puts in his claim before some magistrate where the horse shall be found ; and within 40 days more, prove such horse his property by the oath of two witnesses, and tenders to the person in possession such price as he bona fide paid for him in market overt ; and in (m) 2 Inst. 713, 714. (w) 2 Insl. 713. (t>) Perk. s. 93. (x) 2 Inst. 719. *168 168 Of Frauds and Deceit in the Sale of Goods. [Part II. case any one of the points before mentioned be not observed, such sale is utterly void ; and the owner shall not lose his property, but at any distance of time may seize his horse, or bring an action for him."(y) ^ was once decided, that the vendor entering a wrong name in the book of the market, would not invalidate the sale of a horse in market overt within this statute 5(0) but that decision has been since overruled ; and it seems now to be settled, that the property would not, under such circumstances, be altered, (a) 14. OF FRAUDS AND DECEIT IN THE SALE OF GOODS ; AND OF A DE- LIVERY OBTAINED UNDER FALSE PRETENCES : ALSO OF THE VEN- DOR'S RIGHT TO FOLLOW AND SEIZE THEM. All contracts which are infected with fraud, are void both at law and in eq- uity ; for the basis of all dealings ought to be good faith, (b) And therefore where an agent of the vendor of a picture, knowing that the vendee labours under a delusion with respect to the picture, which materially influences his judgment, permits him to make the purchase without removing that delusion, the sale is void. So, although a ship be sold under these terms, viz., " to be taken with all faults," the vendor cannot avail himself of that stipulation, if he knew of any secret defects in her, and used means to prevent the purchaser from discovering them ; or made a fraudulent representation of her condition at the time of the sale. (100) But where A. sells to B. a bowsprit, which at the time of sale appears to be perfectly sound, but which, after being used for some time, turns out to be rotten ; in the absence of fraud, A. is entitled to re- cover from B. what the bowsprit was apparently worth at the time of de- livery.^) If a trader is induced to supply goods to a minor upon a fraudulent rep- resentation by his father, that he is about to relinquish his business in favour of his son, the father is liable, he having interfered with the proceeds of the goods. Thus, in the case of Biddle v. Levy, (d) which was an action of as- sumpit for goods sold and delivered brought by the plaintiffs, who were manu- facturers of glass at Birmingham against the defendant, a trader in London, for goods sold and delivered. And it appeared at the trial, that the plaintiffs had dealt with the defendant for some time previous to the period when the de- fendant informed the plaintiffs that he was about to retire from business, and that his son Samuel Levy would succeed him; he added that he should keep a watchful eye over him, and afterwards introduced him personally to the plaintiffs. Upon this representation, the plaintiffs supplied the son Samuel Levy with goods (y) 2 Blac. Com. 450. (6) Vid. Ante, 58. (r) Wilkes v. Morefoots, Cro. Eliz. 86. (c) Vide Ante, 121. (a) Gibb's case, Owen 27. and 1 Leon. (d) 1 Stark. 20. 158. (100) See Fleming v. Slocum, 18 J. R. 403. *169 Chap. I.J And of a Delivery obtained by false Pretences. 169 to the amount of 800/. 'I'he plaintiffs contended, that though the credit was given to the son, yet, that under the circumstances the father was liable on the ground that his conduct was fraudulent ; the son at the time the goods were sup. plied being a minor about the age of 17 ; and that the representation which the father made was false, and intended for the purpose of evading all responsibi- lity- Gibbs Ch. J. in. summing up the case to the jury, informed them, " That if the father had falsely represented to the plaintiffs, that he was about to recede from business and place his son in his shoes, in order that the plaintiffs might have no one to resort to, who was responsible, he was liable in the present ac- tion, whether in fact he had a secret interest, conjointly with the son, or the son, contrary to the defendant's representation, had no interest whatsoever in the profits. On the first supposition, the defendant, would be liable as a co-partner with his son, since he had not pleaded in abatement ; on the second, he would be liable wholly as principal ; having taken into his own hands that fund out of which the creditors, who trusted the son, might naturally expect to be paid." His lordship, in conclusion, informed the jury, "that the whole case turned up- on the representation made by the defendant ; that if they were of * opinion that the representation was false and fraudulent, they ought to find for the plaintiffs ; if, on the contrary, they believed that it was made bona fide, they would find for the defendant." The jury found a verdict for the plaintiffs. (101) So, where a man had fraudulently induced a trader to sell goods to a third person, with a view of obtaining to himself the proceeds upon a resale, he was held liable to the trader for the value of the goods. Thus, in the caseofJ.6- botts v. Barry, (d) which was an action for goods sold and delivered, and for money had and received. The following case in substance was proved at the trial. Phillips being indebted to the defendant, he, for the purpose of discharging the debt, procured wines from the plaintiffs by a string of contrivances, which amounted to a gross fraud ; 'paying the plaintiffs only half the price of the wines, and giving a bill of exchange, which was of no value, for the residue. In these contrivances, the defendant was prime mover and participator, and furnish- ed Phillips with the money to pay in part ; the wines were then under defen- dant's direction and brokerage, and sold in Phillip's name to Bunyan, who ac- cepted a bill drawn by Phillips for the amount, which Phillips immediately in- dorsed to the defendant. The jury found a verdict for the plaintiffs, on the ( a " d sustains injury ; yet, if A., by parol, promise to indorse the note of B., if the plaintiff will sell and deliver to him certain goods, and the goods are accordingly delivered • A. is not liable, on the ground of his promise, to an action of deceit ; thoucrVhe knew at the time, that B. was insolvent. Gatlager v. Brunei, 6 Cowen, 346. 22 M70 170 Of Fraud and Deceit in the Sale of Goods, [Part II. ground that a gross fraud had been practised on them by the defendant : but the learned Judge gave leave to the defendant to move to set aside the verdict, and enter a nonsuit. A motion to this effect was accordingly made : the Court, however, refused the rule, and were clearly of opinion that the verdict was right. And Dallas Ch. J. said, " I think that this rule ought to be discharged ; and upon this plain ground, that the jury have found a fraud in the defendant, committed by him through the medium of Phillips. Nor can I distinguish be- tween Phillips and the defendant in the prosecution of this fraudulent transac- tion, for Phillips stands in the light of agent to the defendant throughout the whole contrivance. But it is not necessary to go that length ; nor do I wish to come to any decision uncalled for by the case before the Court. I confine my- self strictly to this. Here was a sale of wines, the property of the plaintiffs, brought about by fraud and collusion, in which the% defendant, who was to reap the benefit of such sale, was prime mover. Now it is admitted, that a sale ef- fected by fraud works no change of property ; the property then in this case remained in the original owner, and therefore I hold the profits of the sale in the hands of the defendant, to be so much money had and received by him, to the use of the plaintiffs, who were the original proprietors. On this ground I am of opinion, that this application must be dismissed." *So in the case of Jackson v. Duchaire,(e) where an agreement was made between the plaintiff and defendant to take certain goods at a valuation ; but the defendant not being able to raise the money, she got a friend of the name of Welch to purchase them for her, and Welch agreed with the plaintiff for the same at the price of 701. It appeared, however, in evidence at the trial, that there was a private agreement between the plaintiff and defendant unknown to Welch, that the defendant should pay the further sum of 30Z., over and above the 70/. to be paid by Welch ; and had in pursuance thereof given to the plain- tiff two promissory notes of 15/. each ; and on one of which this action was brought ; and the plaintiff called witnesses to prove that the goods were worth more than 70/., independently of the convenience to the defendant of purchas- ing them on the spot. But Lord Kenyon Ch. J., before whom the action was tried, was clearly of opinion that the plaintiff was not entitled to recover, upon the ground that the private agreement between these parties was a fraud upon Welch, who had paid this money in advancement of the defendant in confidence that the sum paid by him was the whole consideration. The jury, however, found a verdict for the plaintiff. But a rule for setting aside the verdict having been obtained, the Court determined, that the verdict was wrong, and that no sction would lie. So, where a buyer of goods fraudulently gives a bill of exchange in satis- faction and by way of barter for goods, knowing at the time that it is an un- available security and worth nothing, he is answerable for damages in an action of trover or deceit ; but not in assumpsit for goods sold and delivered. Thus, (e) 3 Term Rep. 551. 171 Chap. 1.] And of a Delivery obtained by false Pretences. 171 in the case of Read v. Hutchinson(f), which was an action of assumpsit for goods sold and delivered upon the following sale-note, viz. " Sold for account of Mr. James Read — To John Hutchinson, Seven pipes Guernsey red-wine» Ex Prince Regent, at 47/. per pipe, as they lie in the London Dock, to be paid for by Mr. Edward's bill on Mr. P. Young of 328/. 12s. due in December next, without recourse on the buyer in case of its not being paid." The wines were immediately transferred in the London Docks to the defendant, and he gave the bill upon Young in payment. The plaintiff's case was, that this bill was dis- honored when due, and that the defendant at the time of the sale perfectly well knew it was worth nothing, and had deceitfully represented it as an availabls security ; and it was contended that the defendant was still liable to pay for the goods. But Lord Ellenborough Ch. J. said, " I am of opinion this action can- not be maintained. If there be any contract between these parties, it is that evidenced by the broker's note ; and according to that, the wines were not to be paid in money, but were to be bartered against a bill of exchange, and it was *expressly stipulated that the buyer was not to be liable in case the bill should be dishonoured ; therefore he never was indebted to the plaintiff for the price of the wines, and the law cannot imply a promise on his part to pay for them. If the contract is altogether rescinded, there is no sale. The defendant is not a purchaser of the goods, but a person who has tortiously got possession of them. If he knew, at the time, that the bill was worth nothing, I think he is answerable to the plaintiff to the amount of the value of the goods ; but this is not the proper remedy. The plaintiff should have brought trover, or an ac- tion of deceit." ' So, where goods are obtained from a trader by fraud, and under a color pre- tence of making a purchase, and the trader is thereby induced to make an actu- al delivery of goods to him ; such delivery does not pass the property, but the trader may legally follow the goods and seize them :(102) but in doing so, great (/) 3 Campb. 352. (102) Palmer v. Hand, 13 J. R. 434. If, during the delivery of goods sold, and before it is completed, the vendee sell or pledge them to a third person, for a valuable consideration, without the knowledge of the original vendor, the lien of the latter will not be affected ; and he may recover them from the subsequent purchaser. Id. And so, where goods were sold and delivered by means of fraudulent representations of the vendee, the vendor cannot re- scind the contract, and claim the goods against an attaching creditor of the fraudulent ven- dee, whose debt accrued subsequent to the sale ; but if such creditor attach for a subsequent, and also for a prior debt, joined in the same writ, his lien on the goods, as against the party defrauded, extends to so much of the goods only, as will satisfy the subsequent debt, and costs. Gilbert v. Hudson, 4 Greenl. "345. See Flussey v. Thornton, 4 Mass. Rep. 405. Moxorey v. Walsh, 8 Cowen, 23S. So, if a sale of goods be effected by fraud on the part of the vendee, the contract as between the original parties, is void ; but if the vendee sell and deliver the goods to a bona fide purchaser, the property will vest in the latter ; and yet the goods are not subject to be seized and sold in execution for a debt of the fraudulent vendee. Mowrey v. Walsh, 8 Cowen, 238. See Tamplin v. Mdy, note (a). Id. 239. In order to enti- tle the vendor of goods to vacate the sale, and reclaim the goods, on the ground of fraud, it is not necessary that the fraudulent representations should have been made at the time of the sale ; it is sufficient, if the goods were obtained by the influence and means of false and fraudulent communications made at a previous time. Seaver v. Dingley, 4 Greenl. 306. See further in Leedum v. Phillips, 1 Yeates, 529. •172 172 Of Fraud and Deceit in the Sale of Goods, [Part 11. caution should be taken in not committing personal violence, or other breai h of the peace, or of being guilty of any excess of trespass. Thus, in the case of Noble v. Adams, (g) which was an action of trover for a quantity of Madras handkerchiefs. The plaintiff contended that he had purchased them from Cross and Co. The defendant was a wharfinger in London, into whose hands the goods had come, by the plaintiff's order, upon their arrival in London from Glasgow ; and the defendant sought to retain the goods for the benefit of Cross and Co., by whom he was indemnified. And upon the trial, the defendant sub- mitted two grounds of defence, first, that the vendors had a right to stop the goods in transitu, which they had exercised by forbidding the defendant to deliver them ; and, secondly, that the property in the goods never had been changed ; the goods having been obtained under such circumstances of fraud as vitiated the sale. It appeared in evidence, that the plaintiff, a trader in London, being the holder of a bill for 447/. 13.?., accepted by Outhwaite and Co., with whom he was in the habit of exchanging bills, and whom he knew to have become in- solvent ; and knowing himself also to be in embarrassed circumstances, wrote to Malcolm, a creditor in Glasgow, stating that Outhwaite and Co. could not pay their bills, and were not worth a farthing ; and that it was necessary for him (the plaintiff) to go down into Scotland and purchase goods, by which means he could stand, and would help out one or two of his creditors : he accordingly went to Glasgow, and there purchased the goods in question of Cross and Co., for which he paid by Outhwaite'' s acceptance, and by another bill for 108Z. 13s. 10rZ., which Malcolm was prevailed on to draw on the plaintiff, in favour of Cross and Co., payable at PrescotCs and Co. in London. He did not, howev- er, assist either of his creditors ; and it did not appear in evidence who was the person that delivered the goods at the wharf at Leith ; but it clearly *appeared that they were shipped for London by the plaintiff himself, to whom the de- fendant's employers, the Edinburgh and Leith shipping company, gave an ac- knowledgment, dated 21st April 1815, that they had received the goods from the plaintiff, to be shipped at Leith in the Hope, deliverable at the Glasgow wharf, London. Upon this evidence Gibbs C. J. was of opinion, upon the first ground of defence, that as there had been an absolute delivery of the goods to the plaintiff, the right of stoppage in transitu was at an end. But upon the se- cond point, he thought it was a question for the jury, whether Cross and Co. had merely made an improvident sale, or whether the defendant had proved that the plaintiff had fraudulently obtained the goods. If the jury thought that the plaintiff went down to Scotland, having formed a deliberate plan to put off bad bills for valuable merchandizes, knowing the goods would never be paid for, and intending then to abscond with the goods, or to throw them into an immediate bankruptcy, or to pass them over to a particularly favoured credi- tor, his Lordship was of opinion that the plaintiff had been guilty of a fraud, and that the sale would not change the property ; but if the plaintiff only (r) 7 Taunt. 59. 173 Chap. 1.] And of a Delivery obtained by false Pretences, 173 meant to give these bills, and himself, by these bills, more credit than they de- served ; but intended to continue to carry on his business, and to try to pay for the goods at some time or other, if he could, that was not such a fraud as would vitiate the sale. The jury told his lordship that they believed that this was a fraudulent transaction, undertaken knowingly, and with intent to defraud Cross and Co. of their goods ; and they accordingly found a verdict for the de- fendant : and the Court of Common Pleas afterwards refused a rule for setting aside the verdict, and declared their opinion, that under the guards which the learned Judge had stated the proposition to the jury, he had stated it correctly. So in the case of the Earl of Bristol v. Wilsmore, (h) which was an action on the case for seizing and taking part of a flock of sheep which had been seiz- ed and taken in execution. At the trial before Abbott Ch. J. it was proved, on the part of the plaintiff, who was the chief steward of the liberty of Bury St. Edmund's, and by whose bailiff the writ had been executed, that in the course of the night after the sheep had been seized in execution, and whilst they were in the custody of the officer, in a field belonging to Miller, next ad- joining to a meadow belonging to the defendant Wilsmore, Page had made a passage for the sheep into Wilsmore 1 's field ; and that the latter had impounded them ; and the next morning delivered them to Page, upon his paying the alleged amount of the damage done. This appeared to have been a contriv- ance between Wilsmore and Page, in order to enable the latter to obtain pos- session of the sheep. On the part of the defendant it was proved, that Miller had *obtained the sheep from Page under the following circumstances : they were offered to him for sale on Wednesday the lGth May 1S21, by Lemon, the servant of Page ; and Miller agreed to pay 78/. in ready money for them. The bargain being made, the sheep were driven by Lemon to the house of Miller at Nayland, about nine miles from Colchester ; upon their arrival there, Miller prevailed upon Lemon to accept a check for 78/. upon Miles &■ Co., bankers at Colchester, by assuring him that it was as good as money. Miller's account at the bankers had been overdrawn for some months before this trans- action took place. Lemon then left the sheep in Miller's possession ; Page, after keeping the check for two days, presented it at the bankers, and payment was refused. On the very day the sheep were obtained from Lemon, Elizabeth Carver, who was sister-in law to Miller, went with him to the office of an attor- ney at Colchester, who was an entire stranger to them, and gave him instruc- tions to prepare a warrant of attorney, which was done accordingly ; and upon that, judgment was entered up, and execution issued against Miller, un- der which the sheep in question were taken. Miller absconded, and was not afterwards heard of. Upon these facts it was contended, on the part of the defendant, that no property in the sheep was vested in Miller by the sale, he having obtained possession of them by fraud. On the part of the plaintiff it was contended, that the property did pass, inasmuch as there was no false rep- [(h) l,Baru. & Cres, 511. *174 174 Of Fraud and Deceit hi the Sale of Goods. [Part II. resentation made to induce Page to part with the possession of the sheep ; and the case of Rex v. Lara was cited, (i) The Lord Chief Justice, upon the authority of that case, was of opinion that the property had passed to Miller, and without submitting the fact of fraud to the jury, directed them to find a ver- dict for the plaintiff, which they accordingly did for 78Z. But a rule for a new trial was afterwards obtained ; and the Court, upon argument, determined that the question of fraud should have been submitted to the jury ; and the Chief Justice then said, " Upon further consideration we are all of opinion that there ought to be a new trial. If Miller contracted for and obtained possession of the sheep in question with a preconceived design of not paying for them, that would be such a fraud as would vitiate the sale ; and according to the cases which have been cited, would prevent the property from passing to him. Whether he obtained possession of the goods with such a preconceived design, is a question of fact which ought to be left to the jury ; and for that purpose the case must go down to a second trial. At the former trial, the cases of No- ble v. Adams, (k) Rex v. Jackson,(l) and Read v. Hutchinson,(m) were not cited. If the property in the sheep had not passed to Miller, it is clear that the plaintiff was not entitled to the possession of them against the defendants ; for the plaintiff had a right to seize *under the fieri facias the property of Miller only : unless the sheep, therefore, had become the property of Miller the plaintiff had no right to take them, and still less to retain possession of them as against the rightful owner." 15. OF THE SALE OF SMUGGLED GOODS ; OR OF LIBELLOUS PRINTS, &c. In a former part of this work, we have seen that contraband or smuggled goods are such as are prohibited by act of parliament, or the King's procla- mation, either to be imported into, or exported out of this country : and that if any contract for the sale of goods of this description be made in this country it is void, and no action will lie thereon. (n) But where the contract and delivery of goods are complete abroad, and the seller does no act to assist the smug- gling them into this country, such a contract is valid, and may be recovered upon here. Thus, in the case of Holman and others v. Joh?ison,(o) which was an action of assumpsit for goods sold and delivered ; at the trial, a verdict was found for the plaintiff. But upon a rule to show cause why a new trial should not be granted, Lord Mansfield reported the case, which was shortly this: " The plaintiff, who was resident at, and an inhabitant of Dunkirk, to- gether with his partner, a native of that place, sold and delivered a quantity of tea, for the price of which the action was brought, to the order of the defen- dant, knowing it was intended to be smuggled by him into England: they had, however, no concern in the smuggling scheme itself, but merely sold his tea (>) 6' Term Rep. 565. (n) Ante, 64. and the several cases there (it) Ante, 172. cited. (I) 3 Campb. 370. (o) Cowp. 341. et. vid. Hodgson v. Temple, (m) Ante, 171. 5 Taunt. 181. » 175 Chap. 1.] Of Smuggled Goods, or Libellous Prints, &c- 175 as they would have done to any other person in the common and ordinary course of their trade." In support of the rule it was insisted, that the contract for the sale of this tea being founded upon an intention to make an illicit use of it, which intention and purpose was with the privity and knowledge of the plaintiff, he was not entitled to the assistance of the laws of this country to recover the value of it. He cited Huberus, 2 vol. 538, 9. and Robinson v. Bland, to show that the contract must be judged of by the laws of this country, and consequently that an action for the price of the tea could not be supported here. But the Court determined, that as the sale and delivery was complete at Dunkirk, and there was no evidence to show that the plaintiff had any concern in running the tea into England, he was entitled to recover. Lord Mansfield Ch. J. said : " There can be no doubt but that every action tried here must be tried by the law of Englan d ; but the law of England says, that in a variety of instances, with regard to contracts legally made abroad, the laws of the country where the cause of action *arose shall govern. There are a great many cases which every country says shall be determined by the laws of foreign countries where they arise. But I do not know how the principles on which that doctrine obtains, are applicable to the present case. For no country ever takes notice of the revenue laws of another. The objection that a contract is immoral or illegal, as between plaintiff or defendant, sounds, at all times, very ill in the mouth of the defendant. It is not for his sake, however, that the ob- jection is ever allowed ; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this : ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says, he has no right to be assisted. It is upon that ground the Court goes ; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So, if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it ; for where both are equally in fault, potior est conditio defendentis. The question therefore is, whether, in this case, the plaintiff's demand is founded upon the ground of any immoral act or contract, or upon the ground of his being guilty of any thing which is prohibited by a positive law of this country. An immoral contract it certainly is not; for the revenue laws themselves, as well as the offences against them, are all positivi juris. What then is the contract of the plaintiff? It is this ; being a resident and inhabitant of Dunkirk, together with his partner, who was born there, he sells a quantity of tea to the defendant, and delivers it at Dunkirk, to the defendant's order, to be paid for in ready money there, or by bill drawn personally upon him in England. This is an action brought merely for goods sold and delivered at Dunkirk. Where then, or in what respect, is the plaintiff guilty of any crime ? *176 17G Of Smuggled Goods, or Libellous Prints, $-c. [Part If. Is there any law of England transgressed by a person making a complete sale of a parcel of goods at Dunkirk, and giving credit for them 1 The contract is complete, and nothing is left to be done. The seller, indeed, knows what the buyer is going to do with the goods, but has no concern in the transaction itself. It is not a bargain to be paid in case the vendee should succeed in landing the goods ; but the interest of the vendor is totally at an end, and his contract complete by the delivery of the goods at Dunkirk. To what a dan- gerous extent would this go if it was to be held a crime. If contraband cloths are bought in France, and brought home hither? or if glass bought abroad, which ought to pay a great duty, is run into England; shall the French taylor, or the glass manufacturer *stand to the risk or loss attending their being run into England? Clearly not. Debt follows the person, and may be recovered in England, let the contract of debt be made where it will ; and the law allows a fiction for the sake of expediting the remedy. Therefore I am clearly of opinion, that the vendors of these goods are not guilty of any offence, nor have they transgressed against the provisions of any act of parliament. The gist of the whole turns upon this, that the conclusive delivery was at Dunkirk. If the defendant had bespoke the tea at Dunkirk to be sent to England at a certain price ; and the plaintiff had undertaken to send it into England, or had had any concern in the running it into England, he would have been an offender against the laws of this country. But upon the facts of the case, from the first to the last, he clearly has offended against no law of England.' 1 '' But, if a vendor of goods abroad knows, at the time of the sale and delivery, that the goods are to be smuggled into this country, and gives his assistance to the vendee, by packing them in a particular manner for smuggling, with intent to aid that purpose, he cannot recover the value of the goods sold, even though he be a foreigner resident abroad. Thus, in the case of Waymell v. Reed and another,(/>) which was an action of assumpsit for goods sold and delivered, and the defence was, that the contract was a smuggling transaction. And it ap- peared in evidence, that the defendants had applied to the plaintiff, who was a foreigner living at Lisle, for a quantity of lace, which he knew was intended to be smuggled into England ; for that purpose it was packed by the plaintiff in a peculiar manner, by the direction of the defendants, for the more easy convey- ance of it without a discovery. The Court determined, that the plaintiff could not, under the circumstances, recover for the goods sold. And Lord Kenyon Ch. J. said, " It is not necessary to inquire now whether or not it be immoral for the native of one country to enter into a contract with the subject of ano- ther, to assist the latter in defrauding the revenue laws of his country. It is sufficient, in order to dispose of this case, to advert to the distinction laid down by Lord Mansfield in Holman v. Johnson, to which I entirely subscribe ; that where the contract and delivery of goods are complete abroad, and the seller does no act to assist the smuggling them into this country, such a contract is (p) 5 Term Rep. 599. See also Clugasv. Penabuna, 4 Term Rep. 466. S. P. *177 Chap. I.] Of the Sale of Libellous Prints, fyc. Ill valid, and may be recovered upon here. But here the plaintiff was concerned in giving assistance to the defendants to smuggle the goods, by packing them in the manner most suitable for, and with intent to aid that purpose. He can- not therefore resort to the laws of this country to assist him in carrying his con- tract into execution." So, in the case of Biggs and others v. Lawrence,{q) it was determined, that an action cannot be maintained by several partners for goods sold *by one of them living at Guernsey, and packed by him in a particular manner for the purpose of smuggling, though the other partners, who resided in England, knew nothing of the sale ; for it is a contract by subjects of this coun- try made in contravention of the laws : and this case must be considered in the same light as if all the partners lived in England. But, though it is required by the stat. 29 Geo. 3. c. 68. s. 30., that every per- son who shall deal in tobacco shall first take out a licence under a penalty ; yet the Court of King's Bench held, that a factor selling a parcel of prize man- ufactured tobacco, consigned to him from his correspondent at Guernsey, of which a regular entry was made on importation, but without having entered himself with the Excise Office as a dealer in tobacco, or having any licence as such, may nevertheless maintain an action against the vendee for the value of the goods sold and delivered, upon the ground that there was no fraud upon the revenue, nor any clause making the contract illegal ; but at most it was the breach of a mere revenue regulation, which was protected by a specific pen- alty, (r) Of the Sale of Obscene or Libellous Prints.] — No action will lie upon a contract for the sale of prints of an obscene, immoral, or libellous ten- dency. Thus, in the case of Fores v. Johnes,(s) which was an action o£ as- sumpsit for prints sold and delivered. The plaintiff was a printseller in Picca- dilly ; and the action was brought to recover the value of a quantity of carrica- ture prints sold by him to the defendant. The order, as proved to have been given by the defendant to the plaintiff, was, " For all the carricature prints that had ever been published." Under this order, the prints in question, had been sent to the defendant's house in Wales. The defendant refused to receive them, on the ground, that the collection contained several prints of ob- scene and immoral subjects, exclusive of several being duplicates. The plain- tiff's counsel contended, that the order was general and comprehensive, with- out any exception as to the subject ; and that the plaintiff, therefore, having sent prints of every description was entitled to be paid for them. Sed, per Lawrence, J. " For prints, whose objects are general satire or ridicule of pre- vailing fashions or manners, I think the plaintiff may recover; but I cannot permit him to do so for such whose tendency is immoral or obscene ; nor for such as are libels on individuals, and for which the plaintiff might have been rendered criminally answerable for a libel." ((/) 3 Term Rep. 454. (s) 4 Esp. Rep. 97. (r) Johnson v. Hudson, 11 East Rep. 180. 23 «178 179 Of Credit and Payment upon the Saleoj Goods- [Part II. +16. OF CREDIT UPON SALES, AND THE TIME AND MODE OF PAY- MENT ; AND IN WHAT CASES PAYMENT MAY BE RESISTED, UP- ON THE GROUND OF FRAUD ; AND WHEN THE STIPULATED PRICE MAY BE REDUCED TO A QUANTUM VALEBANT. 1. Of Credit given upon the Sale of Goods.] — When a tradesman gives credit for goods at the time of the sale, he cannot bring an action till the time of credit has expired ; but if the credit is given or extended after the sale ; or if the buyer has acted fraudulently in obtaining the credit, as well as the goods, the tradesman need not wait the full time, but he may sue the buyer for his debt immediately. Thus, in the case of De Symons v. Minchwick,(t) which was an action of assumpsit for goods sold and delivered : and upon the trial, the de- fence was, that the action was brought before the time of credit had expired. In the course of the evidence it appeared, that the plaintiff had sold jewels to the defendant to the amount of 500/. for ready money, as the plaintiff asserted ; but as a witness for the defendant proved, on information from the plaintiff him- self, to bp paid for on the 1st of November, subsequent to the bill of parcels, before which time, namely, on the 22d of October, the action had been com- menced. To rebut this defence, the plaintiff proved, that almost immediately after the sale, the defendant had pawned the jewels with different pawnbrokers, and that suspecting the defendant not to be the person he represented himself to be, he had arrested him before the time alluded to. Eyre Ch. J. said, " If the credit given was voluntary, subsequent to, and not making any part of the orig- inal contract, it certainly might at any time be retracted : but if it made part of the contract, it is so material a part of it, that if the action be brought within the time limited for credit, it cannot legally be supported, unless it was not a bona fide purchase at the time by the vendee ; for if he meant to impose on or defraud the vendor of his goods, the defence will not avail. But those are cir- cumstances for the consideration of the jury only, to whom he left it." The jury (which was a special one) found a verdict for the defendant. So, when goods are sold upon a contract that the vendee shall pay for them in three months, by a bill of two months, it is a credit of five months ; and therefore no action of assumpsit for goods sold and delivered can be brought at the end of three months, upon the neglect of the vendee to give his bill at two months ; the remedy being by a special action on the case for damages, for the breach of contract in not giving such bill. Thus, in the case of Mussen v. Price, and another, (u) which was an *action of assu?npsit for goods sold and deliver- ed ; and the only question was, whether the action was commenced before the time of credit on which the goods in question had been contracted to be brought was expired ? Payment for the goods was to be made by the defendants in (t) 1 Esp. Rep. 430. et vid. 2 Esp. Rep. (u) 4 East Rep. 147. See also Dutton v. 523. 4 East Rep. 76. S. P. Solomonson, 3 Bos. & Pul. 582. Hickling v. Hardey, 1 Mo. 61. *179 *180 Chap. l.]Of Credit and Payment upon the Sale of Goods. 180 three months after the loth of September 1802, (the day on which the bargain was concluded) by a bill at two months. The action being commenced before the expiration of five months from the 15th of September preceding, the defen- dant's counsel objected that it was prematurely brought, and therefore that the plaintiff should be nonsuited ; but the learned Judge held, that unless the defen- dants could show (which they did not do) that they had given or tendered such a bill at the end of the three months, the action would lie for goods sold and delivered. Accordingly, the plaintiff recovered ; but the point was saved for the consideration of the Court of King's Bench. And a motion was made for a rule to set aside the verdict, and for leave to enter a nonsuit. This rule was granted principally upon the authority of a case, Miller v. Shawe, tried at Lancaster Lent assizes, 1801, Before Mr. Justice Chambre, which was stated to be as follows :(u) "Action for goods sold and delivered. The plaintiff's evidence proved, that the goods were sold at two months, and two months, that is, to be paid for at two months by a bill at two months ; which the witness considt. ered as cash at four months. The action was brought before the expiration of the four months, and the declaration was in the usual form, containing the usual counts of indebitatus assumpsit, and quantum valebant for the amount. Topping for the defendant, contended, that no debt existed at the com- mencement of the action, nor till the four months were expired ; but that the plaintiff might have brought his action after the expiration of the two months, and before the end of the four months, upon a breach of his contract for the non-delivery to him of a bill ; but that no action of indebitatus assumpsit would lie till the end of the four months. Cockell, serjeant, and Yates contended, that as the defendant had not given the bill at the end of the two months, they might abandon the contract, and recover the price of the goods for want of the bill, which, if given, the plaintiff was to accept in lieu of the money. And Chambre J. at first seemed to be of that opinion, but on hearing Topping, for the defendant, as above, he thought that after the four months the plaintiff need not have declared on the contract, but the money being tben due and unpaid, he might declare in the usual way, and recover the price as a debt on an indebitatus assmnpsit. Before that time, however, he thought the plaintiff's only remedy was for damages for a breach of die promise in not delivering the bill at two months : and the plaintiff was nonsuited. And in the principal case, *after argument, the Court of King's Bench determined, that the action for goods sold and delivered, could not be sustained till the end of five months ; and accordingly made the rule absolute for setting aside the verdict, and entering a nonsuit. And Le Blanc Just, said, " I think this action was brought before the time of credit had expired. Here is an express promise proved between the parties, the seller was to stand upon the credit of the defen- dant alone for three months, and then he was to have in addition a third per- son's credit for two months longer ; so that altogether the defendant was to (v) Vide 4 East Rep. 149. *181 181 Of Credit and Payment upon the Sale of Goods.[Vart II. have credit for five months before he was called upon to pay, but he will not have the benefit of his contract, if he be called upon for the full sum, before the expiration of the five months' credit." If, however, the goods are not paid for at the end of the five months, the ven- dor may recover the price of them in an action of indebitatus assumpsit for goods sold and delivered. (h) And when goods are sold without any agree- ment as to the time or mode of payment, and there is no custom to regulate the time of payment ; if the vendee give a bill, drawn on a third person, pay- able at a future day, for the amount of the goods ; but upon presentment of the bill for acceptance it is dishonoured, the vendor may immediately sue the ven- dee for the price of the goods, and consider the bill as a nullity.(^) But if there be an express contract to give credit for a certain time, and a bill is given as a security, the vendor must wait the full time of credit, though the bill should be previously dishonoured, or the vendee become insolvent, (y) So, if goods are sold upon a contract that they shall be paid for by a bill to be drawn at a future day, payable at so many months' date, the vendor must draw the bill, and tender it to the vendee for acceptance, though the latter may have dishonoured several of his acceptances between the time of the sale, and the period at which the bill is to be drawn. Thus, in the case of Reed v. Mestaer(z), which was an action of assumpsit for breach of promise in not giving a bill under the following written agreement: "Agreed on the 15th October, 1802, with Peter Everitt Mestaer, Esq., for one hundred tons of cor- dage at 56/. per ton, the date to commence from that day, and to be paid by bill at twelve months from the 15th October, 1803, with interest added. (Sign- ed) S. Reed." — At the trial, the plaintiff merely proved, the delivery of the cordage, the bill of parcels, and the value. But the counsel for the defendant called a witness, who proved the above agreement, and that the defendant Avas ready, and had offered to accept a bill on the 15th of October, 1803, to be drawn by the plaintiff upon the defendant for the *one hundred tons of cordage ; that the plaintiff refused to take the defendant's acceptance, because he had pre- viously dishonoured several of his bills ; but was ready to take the acceptance of some other person to the plaintiff 's satisfaction. The cause was tried be- fore a special jury of merchants ; and, as soon as the agreement was read, the jury declared, that they were all of opinion, that by the course of dealing among merchants, upon such an agreement, the bill ought to have been drawn by the seller upon the buyer, and by him accepted ; and not that the defendant should tender a bill accepted by another person to the plaintiff's satisfaction, as contended for by the counsel for the plaintiff. And Lord Ellenborough Ch. J. said, " that under this agreement it was certainly a question for the jury to say (w) Brook v. While, 1 New Rep. 330. East Rep. 13. 7 Term Rep. 6G. ; and see (x) Vide Owenson v. Morse, 7 Term Rep. 4 East Rep. 75. 64. Puckford v. Maxwell, 6 Term Rep. 52. (2) At Guildhall Sitt. aft. Hil. Term, 4 East Rep. 153. 1804, coram Lord Ellenborough Ch. J. MSS (y) Stedman v. Gooch, 1 Esp. Rep. 5. 15 *182 Chap. ].]#/ Credit and Payment upon the Sale of Goods. 182 ■what sort of bill was understood between the parties." The plaintiff was therefore nonsuited. So, where goods are sold upon a credit for six or nine months, the buyer may elect which period he will take ; and if payment is not made at the end of six months, it will be presumed that he has elected the longer period, (a) But where, upon a contract for the sale of goods, it was agreed to give three months' credit, and that if the buyer, at the end of that period, wished for further time, the vendor would take his bill of exchange for the amount, paya- ble in three months more. It was contended that this, in fact, constituted a credit for six months ; and that the plaintiff (the vendor) having brought his action before the expiration of that time, must be nonsuited ; and the case of Musscn v. Price was cited. But Lord EUenborough held, that the action was not premature ; the plaintiff had agreed, if the defendant wished it, to give further time ; but the defendant was to give to the plaintiff his bill at three months, as the price of that indulgence. It was therefore incumbent upon him to give such a bill, if he wished to avail himself of the indulgence offered to him." (*) 2. Of Payment for Goods sold.] — If an agreement is made for the sale of goods at a particular price, without either payment or mention of payment, the contract shall be void if the vendee do not pay, or offer to pay for them upon delivery ; because in every bargain, payment ought to be made on the delivery of the goods, except where a future day is agreed upon between the buyer and seller : and this is to be done notwithstanding earnest be given upon the bargain ; for that only makes the contract complete, (c) But though where goods are sold upon an agreement to pay for them in ready money, yet if the goods happen to be delivered to the vendee without payment, and an action is afterwards brought for the price ; and it happens that the vendor, at the time of delivery was indebted to the vendee in a sum of money equal to the *amount of the goods sold, the vendee may set off his debt against the amount of the goods, notwithstanding the agreement to pay ready money. Thus, in the case of Eland v. Karr(d), which was an action of indebitatus assumpsit for goods sold and delivered, the defendants pleaded a set-off for money due upon various bills of exchange, and also for money had and received on the 14th March 1800. Replication that on the 22d March 1800, it was agreed between the plaintiff and defendants that the defendants should pay to the plain- tiff for the goods in ready money. To this replication there was a general de- murrer ; and in support of which it was contended, that an agreement to pay for goods in ready money admits of a set-off in the same manner as any other debt ; and that the agreement to pay for the goods on delivery is merely to ascertain the time of payment. On the other side it was argued, " that a party ~ (a) Price, v. Nixon, 5 Taunt. 338. ton v. Lamb, 7 Term Rep. 125. Ratcson v. (6) Nickson v. Jepson, 2 Stark. 227. Johnson, 1 East Rep. 203. Bui. N. P. 50. (c) Dy. 20. a. Hob. 41. 2. Bro. Con- (d) 1 East Rep. 375. Comforth v. Rivett, tract, 25, 26. Kit. 181. b. See also More- 2 Maule & Sel. 510. S. P. *183 183 Of Credit and Payment upon the sale of Goods. [Part II. who contracts to pay for goods in ready money could not substitute any other mode of payment ; and that this was an attempt to substitute the set-off of an- other debt in lieu of money ; and that too in a case where the damages are un- liquidated. But the Court determined, " that as at the time of the commence- ment of the plaintiff's action, which was the time to be regarded, there was a debt due from the defendant to the plaintiff, the latter was entitled under the statute 2 Geo. 2. c. 2. to set it off; that no objection arose from the damages being unliquidated ; for that was the case in all actions of assumpsit, when damages are claimed for a breach of contract in nonpayment of money." Where A. sold goods to B. for which the latter was to pay in three months by a bill at three months ; a few days after the expiration of three months B. gave to A. a cheque on his bankers (who were also the bankers of A.) re- quiring them to pay A. on demand, in a bill at 70 days; and A. paid- the cheque into the bankers' hands, and took no bill from them, but the amount was transferred in the bankers' books from B.'s account to A.'s, with the knowl- edge of both ; the bankers having failed before the time when the bill which was originally intended to be given would have become due, a question arose whether A. could recover the value of the goods against B., and the Court of Kings Bench held, that it was a valid payment, and that A. could not recover, (e) If goods are to be paid for by a bill upon the agent of the buyer, he is not discharged by the seller's taking a renewal of the bill from the agent, without giving the purchaser notice, if the agent had no funds of the purchaser in hand, to pay the bill when it became due.(/) But if a creditor prefer a bill of ex- change, accepted by a third person, to ready money, from his debtor, he must abide by the hazard of the security. But if an agent of the debtor offer the creditor payment in cash, or by *a cheque on his banker, and the creditor pre- fer the cheque, this will not discharge the debtor, if the cheque be dishonour- ed ; although the agent failed with a balance of his principal in his hands to a large amount, (g) If a bill of exchange or banker's cheque is given in payment for goods sold, and it is afterwards lost by the vendor, he cannot recover against the vendee upon the original consideration until he has fully indemnified the vendee against the bill or cheque.(/«) And it was held, in the case of Pierson v. Hutchin- son,^) that an indorsee of a lost bill of exchange could not maintain an action at law against the acceptor, although a bond of indemnity was offered ; but it would be otherwise, if it could be proved that the bill had been destroyed. So, where goods are to be paid for by a bill of exchange, and the vendor directs to the vendee a bill by the post, and the bill is so transmitted by the vendee, he will he discharged, though the bill should happen to fall into bad hands, and (e) Bolton v. Richard, 6 T. R. 139. Marsh v. Peddar, 4 Campb. 257. (/) Clark v. Noel, 3 Campb. 411. (h) Bevan v. Hill, 2 Campb. 381. (g) Everett v. Collins, 2 Campb. 515. ; and (t) Ibid. 211. see Tapleij v. Martin, 8 Term Rep. 451. ; *184 Chap.l ] Of Credit and Payment upon the sale of Goods. 184 the amount of it should be received by a third person at the banker's where it was to be paid ; and even if there had been no particular direction from the vendor, the law would have been the same, this being the usual way of trans- acting such business. (/f) But where a person in London is directed to remit money bv the post, he ought either to put it into the post-office in Lombard Street, or deliver it at one of the receiving-houses appointed by the post-office ; and if he give it to a bellman in the street, he will be answerable in case of its miscarriage. (/) If one entire contract is made for the delivery and payment of goods, such contract cannot be apportioned, so as to entitle the vendee to payment of the price of part of the goods delivered. He must deliver the whole before the vendee can be legally called upon for payment, unless he refuse to accept the residue. Thus in the case of Waddington, v. Oliver, (m) which was an action of indebitatus assumpsit for goods sold and delivered : and it appeared, that on the 10th of September, 1804, the plaintiff agreed with the defendant to sell him 100 bags of Kent hops, merchantable, of the growth of 1804, at 56s. per hun- dred weight, to be delivered on or before the 1st of January 1805, as it might be agreeable to the plaintiff; that on the 12th of December, 12 bags were de- livered ; and on the same day, or the next, payment thereof was demanded, which being refused, the writ was sued out on the 13th of December. For the plaintiff it was urged, that as no time was stipulated for payment, the defendant was bound to pay for them as they were delivered. The Court, however, were clearly of opinion that the contract was entire, and could not be split ; and that the plaintiff therefore had no right to bring an action until the whole was deliv- ered, or until the time for delivering the whole had arrived. But where A. in consideration *that B. had bargained and sold to him certain tuns of strong beer, promises B. to pay him 4Z. for every tun super deliberationem inde of thirty tuns of strong beer : an action lies upon this promise for so many tuns as he delivers, before the delivery of all the thirty tuns, (n) Where goods are delivered upon an agreement to take a specific parcel of copper money in payment ; a delivery of such copper is a good bar to an ac- tion for the value of the goods, though in fact it was counterfeit money, but unknown to the defendant, (o) But where A. agrees to purchase of B. a gun for the sum of forty-five guineas, but it is stipulated, that B. shall take a gun of -A.'s, valued at thirty guiueas-in part payment, A. having refused to deliver his gun, and complete the contract, B. is entitled to recover the sum of forty- five guineas as the stipulated price, (p) So, upon an agreement between two traders to supply each other with goods for goods, after a balance is struck be- tween them, such balance is to be paid in money, (q) (k) Warwicke v. Noakes, Peake, 67. a. (o) 1 Term Rep. 225. (/) Haiokins v. Rutt, Peake, 186. (/)) Forsyth v. Jerri.?, 1 Stark. 437. (m) 2 New Rep. 61. (q) Ante, 130. Ingram v. Shirley, 1 Stark. (n) Rol. Abr. 29. pl.2. 1 Dan. Abr. 62. 185. pi. 2. h *185 185 Of Credit and Payment vpon the Sale of Goods.[Y?ttt II. Where a quantity of iron was sold and delivered, under a contract that cer- tain bills, outstanding against the plaintiffs, should be taken out of circulation. After a part of the iron had been delivered, and no bills had been taken out of circulation, the plaintiff stopped the farther delivery, and brought trover for what had been delivered. For the defendant it was contended, that trover would not lie, and that the only remedy for the plaintiff was, to bring an action for the breach of the contract by the defendant. But the Court held, that this was only conditional delivery, and the condition being broken, the plaintiff might bring trover. And Abbot Ch. J. said, " He had left it to the jury to say, whether the delivery of the iron and the redelivery of the bills, were to be contemporary, and that the jury found that fact in the affirmative." And Bayley J. added, " That if a tradesman sold goods to be paid for on delive- ry, and his servant by mistake delivers them without receiving the money, he may, after demand and refusal to deliver or pay, bring trover for his goods against the purchaser." (r) 3. In what cases Payment may be resisted wholly, upon the Ground of Fraud.] — It is a maxim of the common law, that "fraud viti- ates eve*y thing /" consequently every contract founded in fraud is void. So that the vendor of goods cannot recover the value of any article which he has sold to another under any practised artifice or deceit ; (103) and he is not protected, as we have before seen,(s) though one of the terms of the contract is, that the article sold shall be taken " with all faults," where he knows of any secret defects, and uses means to prevent the purchaser *discovering them, or makes a false representation at the time of the sale. So, where the agent of a vendor of a picture, knowing that the vendee erroneously believed it to be the prop- erty of a particular individual, for whom the agent was at that time employed in selling a number of pictures, which belief influenced the vendee's judg- ment, permitted him to make the purchase without removing the delusion, Lord Ellenborough, at Nisi Prius, held the sale fraudulent and void(*). But (r) Bishop v. Shillito, 2 Barn, and Aid. (s) Schneider v. Heath, ante, 121. 329, n. a. (t) Hill v. Gray, 1 Stark. 434.! (103) The law is now well settled, that in an action for the price of goods sold, the de- fendant may prove fraud in the sale, and that the goods were of no value ; and thus, defeat the plaintiff's recovery ; or where the defect produces only a partial diminution of value, he may shew that fact in mitigation of damages. Beecker v. Vrooman, 13 J. R. 302. So, in an action on a promissory note, given for the price of a chattel, the defendant may, under the general issue, shew fraud in the sale. Sill v. Rood, 15 J. R. 230. M'Doivell v. Burd, 6 Binn. 198. See Hills v. Bannister, 8 Cowen, 31. Thornton v. Wynn, 12 Wheat. 183. And upon the same equitable principle, it would seem, that the execution of a contract for the sale of goods, may be resisted by the vendor, by withholding the delivery, where the vendee has been guilty of any fraud or deception in the transaction : But still, the vendee is under no legal obligation to communicate to the vendor, at the time of the sale, any political intelli- gence exclusively within his own knowledge; such, for example, as the news of peace or war, which might affect the price of the commodity ; yet, each party must be careful not to do or say any thing calculated to deceive or impose upon the other : And the decision of the question whether any fraud or imposition has been practised by the vendee upon the vendor ? is, exclusively, within the province of the jury. Laidlaw v. Organ, 2 Wheat. 178, 195. On the last point, see Ward v. Center, 3 J. R. 271. See ante, notes 73, 80. *186 Chap. 1.] Of Credit and Payment upon the sale of Goods. 1S6 in the case of Grimaldi v. While, (n) which was an action of assumpsit for work and labour, &c. The defendant paid a certain sum of money into court, and pleaded the general issue of non assumpsit. The action was brought by the plaintiff, who was a miniature painter, to recover the value of several pictures painted by him for the defendant. Upon the trial it was proved, that the plaintiff painted miniatures of different sizes, according to which the prices varied. Specimens were hungup in his apartment, numbered ; and the prices put opposite to the number. The price opposite No. 8. was fifteen guineas, which number the defendant had had. The pictures had been sent home, and the defendant, at the time, objected to the execution, as being inferior to the specimen exhibited by the plaintiff; but he had not returned them. The defence, upon which it was intended to rely, was this inferiority of execution, and of course of value ; and the defendant's counsel were pro- ceeding to call witnesses, who were judges, and who had seen the pictures, to prove, that at fifteen guineas they were infinitely overcharged, and to ascer- tain what was the real value. This, however, was objected to by the plaintiff's counsel. And Lawrence J., before whom the cause was tried, said, " In this case it is in evidence, that the charges of the plaintiff are regulated by the different sizes of the pictures, which he exhibits as specimens of his art, and for which he charges the different sums set opposite to the numbers. It is proved, that he has delivered several pictures to the defendant of the size which he ordered, and which the defendant received, and has not returned. The defen- dant relies on the circumstances, that they are of an execution very inferior to the specimens exhibited, and which the plaintiff undertook to paint conform- able to. Where an artist exhibits specimens of his art and skill as a paint- er, and affixes a certain price to them, if a person is induced to order a pic- turefrom an approbation of such specimens, and the execution of it, when de- livered, is inferior to the specimen exhibited, he has a right to refuse to receive it, and to return it, as not being conformable to that performance which the painter undertook to execute ; but if he means to avail himself of that objec- tion, he must return the pictures, he must rescind the contract totally. Hav- ing received it under a specific contract, he must either *abide by it, or rescind it in toto, by returning the thing sold ; but he cannot keep the article received under such a specific contract, and for a certain price, and pay for it at less price than that charged by the contract." The plaintiff accordingly had a verdict for the full charge. 3. When the stipulated Price may be reduced to a quantum valebant.] — In an action for the agreed price of goods sold by sample or war- ranty, it is competent to the vendee to prove, that the goods do not correspond with the sample or warranty, and that they are much inferior in quality and price to those contracted for, in order to shew the real value of the goods, and to prevent the vendor from receiving the stipulated price.(u) And it was once (u) 4 Esp. Rep. 95. (t>) Gertnaine v. Barton, 3 Stark. 32., and the cases there cited in note a. 24 »187 187 Of Credit and Payment upo?i the sale of Goods. [Part II. doubted by Lord Ellenborough Ch. J., in the case of Fisher v. Samuda,(w) whether the vendee of goods, which had been sold upon a warranty, after an acti on had been brought against him by the vendor for the stipulated and agreed price, and in which he did not either in bar of the action, or to reduce the dam- ages, make any objection to the quality or value of the goods, but allowed the vendor to recover the full sum agreed to be paid, could maintain an action for damages for a breach of the warranty. But where goods have been sold by sample at a stipulated price, and they turn out upon examination, to be inferior to the sample, and an action of indebitatus assumpsit is brought for the amount? and in which action the buyer pays into court a sum short of the agreed price, as upon a quantum valebant, not having previously returned or offered to return the goods, Lord Ellenborough Ch. J. held, that the buyer was precluded from going into evidence of any defects in the goods, or of their real value, upon the ground that by payment of money into Court, he admits the contract and the price, and loses the ground of defence which he might have had, in not making the objec- tion in proper time, and returning the goods, or offering to return them.(x) So, where a bill of exchange is given in payment for the price of goods sold 5 and the goods be but partially inferior to those which were ordered and war- ranted, the buyer cannot legally defend himself against the payment of the whole amount of the bill, but his only remedy in such case is, by action for damages upon the warranty. This was settled in the case of Morgan v. Rich- ards,{y) which was an action against the acceptor of a bill of exchange at the suit of the drawer, the bill being payable to his own order. The defence was, that the bill had been accepted for the price of some hams bought by the defendant from the plaintiff, to be sent to the East Indies, and that the hams had turned out so very bad, that they were almost quite unmar- ketable ; the sum *for which they actually sold was paid into Court. Lord Ellenborough held, " that though where the consideration of a bill of exchange fails entirely, this will be a sufficient defence to an action upon it by the origi- nal party ; it is no defence to such action that the consideration fails partially, but that under 6uch circumstances, the giver of the bill must take his remedy by an action against the person to whom it was given." So, in the case of Fleming v. Simpson, (z) which was also an action by the indorsee of a bill of exchange against the acceptor. This bill was drawn by Fleming, Goodall, and Co., and accepted by the defendant for the amount of a pipe of best London particular Madeira, which he had ordered of them. The defence set up was, that the wine was of very bad quality when delivered in London, and could notjiave been best London particular Madeira when ship' ped, and that the indorsee was a partner in the house of the shippers. But Lord Ellenborough said, " By delivery on board the ship, the wine became the property of the defendant, and he must bear all risks, and bring his action (to) 1 Campb. 190. Clifton, 2 Wils. 319. Baxter v. Butler, 7 (x) Leggeli v. Cooper, 2 Stark. 103. East Rep. 479. and the cases there cited, (t/) 1 Campb. 40, n. a. Et vide Dixon v. (r) 1 Campb. 40. n. a. ♦188 Chap. 1.] Of Credit and Payment upon the sale of Goods.lS8 against the captain if the wine be spoiled in its passage. To sustain this de- fence, it must be shewn not only that the plaintiff is a partner in the house of Fleming, Goodall, and Co., who drew the bill, but that there was a fraud on their part in the first instance, in shipping a commodity of a different and very inferior quality to that ordered. If it was a clear fraud in the shippers, and the plaintiff was a partner in their house, he could not recover on this bill ; but this defence is not sufficient, if the commodity shipped be only of rather an in- ferior quality of that ordered. 1 * 189 Of a Guarantee, $-c. [Part II. *CHAPTER II. OF A GUARANTEE OR PROMISE TO BE ANSWERABLE FOR THE DEBT OR DEFAULT OF ANOTHER. The subject matter of this chapter may be considered under the following heads, viz. 1. OF THE GENERAL NATURE OF A GUARANTEE; AND OF THE STATUTE OF FRAUDS RELATING THERETO, AND WHAT PROMISES DO OR DO NOT FALL WITHIN IT. 2. OF THE CONSTRUCTION OF A GUARANTEE, AND ITS EXTENT AND CONTINUANCE; AND ALSO ITS DURATION WHEN GIVEN TO A PARTNERSHIP FIRM, &c. 3. OF PROMISES TO BE ANSWERABLE FOR THE DEBT OR DEFAULT OF ANOTHER, IN CONSIDERATION OF FORBEARANCE TO SUE; OR OF DISCHARGING THE DEBTOR, OR OF GIVING UP SECURITIES, &c. 4. OF AGREEMENTS TO PAY A PRECEDENT DEBT ON THE CREDIT- OR'S PROVING IT DUE UPON OATH ; OR OF THE DEBTOR'S FAILING TO PROVE PAYMENT. 5. OF AGREEMENTS TO PAY A DEBT, &c ON DELIVERING UP GOODS, &c. SEIZED IN EXECUTION, OR UNDER A DISTRESS FOR RENT. 6. OF AGREEMENTS MADE WITH SHERIFF'S OFFICERS UPON THE AR- REST OF A THIRD PERSON, EITHER TO PUT IN AND JUSTIFY BAIL, OR TO PAY THE DEBT, &c. IN CONSIDERATION OF THEIR LETTING HIM OUT OF CUSTODY WITHOUT A BAIL BOND. 7. WHAT ACTS DONE BY THE CREDITOR WILL DISCHARGE THE GUARANTEE. 8. OF THE APPLICATION OF PAYMENTS MADE BY A DEBTOR TO HIS CREDITOR WHILST A GUARANTEE IS IN FORCE. 9. OF NOTICE TO A SURETY UPON DEFAULT MADE BY THE PRINCI- PAL. *1. OF THE GENERAL NATURE OF A GUARANTEE; AND OF THE STAT- UTE OF FRAUDS RELATING THERETO, AND WHAT PROMISES DO OR DO NOT FALL WITHIN IT. A guarantee is generally understood, in a legal sense, to mean a prom- ise or an engagement to be answerable for the debt or default of a third per- *189 *190 Chap. 2.] For the Debt or Default of Another. 190 son : and to make such an obligation binding, there must be some good consideration moving from the party with whom it is made ; as for instance, the sale and delivery of goods to, or work to be done on credit for the person on whose behalf the guarantee is given ; or, in consideration of a creditor's giving time, or forbearing to sue his debtor for a precedent debt, and the like. It must also be reduced into writing, and signed ; and the consideration must be set forth ; for by the second branch of the 4th clause of the statute of frauds 29 Car. 2. c. 3. it is enacted, " that no action shall be brought, whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriages of another person ; unless the agreement upon which such ac- tion shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized."(104) Now in this clause of the statute, though it is expressly declared, that the promise must be to answer for the debt, default, or miscarriage of another, yet many questions have arisen upon the application of these words to particular transactions. One of the leading cases on this sub- ject is, that of Buckmyr v. Darnall,(a) which was an action of assumpsit, wherein the plaintiff declared, that the defendant, in consideration that the plaintiff at the request of the defendant would let to hire and deliver to one Jo- seph English a gelding of the plaintiff's to ride to Reading in the county of Berks, undertook and promised the plaintiff that the said Joseph would deliver the said gelding to the plaintiff. At the trial before Holt Ch J., the counsel for the defendant insisting, that the plaintiff ought to produce a note in writing of this promise within the statute of frauds ; and the Chief Justice doubting of it, a case was made for the opinion of the other judges. And it was argued for the defendant, that this case was within the statute of frauds ; for it was a promise to answer for the default and miscarriage of the person the horse was lent to ; that the very letting out and delivery of the horse to English, implied a con- tract by English to re-deliver it, and he was bound by law so to do, and con- sequently the defendant was to answer for the default of another. To this it was answered for the plaintiff, that here the credit was wholly given to the defendant ; that the rule mentioned by the *counsel on the other side must be understood, where an action does or does not lie against the party himself on the contract, and not where an action does or does not lie against him upon collateral respects. And therefore in this case for an actual conver- sion, or for refusing to re-deliver the horse, English might be charged in trover (a) 2 Lord Raym. 10S5. 6 Mod. 248. S.C. (104) The rule is well established, that a promise to answer for the debt, default or mis- carriages of another person, collateral to the principal contract, though made on suificient consideration, must be in writing. This rule is sanctioned bv all the authorities. Simpson v. Patten, 4 J. R. 422. Jackson v. Rayner, 12 J. R. 291. Waggoner v. Gray, 2 Hen. &. Munf. 603. Turner v. Hubbell, 2 Day, 457. Peabody v. Harvey, 4 Conn. Rep. 1 19. Floyd v. Harrison, 4 Bibb. 76. Tilestonv. Nettleton, 6 Pick. 509. Sears V. Brink, 3 J. R. 211. Leland y.Creyon, 1 M'Cord, 100. Boyce v. Owens, 2 M'Cord, 208. *191 191 Of a Guarantee or Promise to be Answerable [Part II. or detinue ; yet he being not chargeable upon the contract, the case was not within the statute. That this contract could not be said properly to be a pro- mise to answer for the default or miscarriage of another, unless English were liable by the first contract. The Chief Justice, after several arguments, de- livered the opinion of the court : he said " that the question had been pro- posed at a meeting of the judges, and that there had been a great variety of opinions between them, because the horse was lent wholly upon the credit of the defendant ; but that the judges of the Court of King's Bench were all of opinion that the case was within the statute. The objection that was made was, that if English did not re-deliver the horse, he was not chargeable in an action upon the promise, but in trover or detinue, which are founded upon the tort, and are for a matter subsequent to the agreement. But I answered, that English may be charged on the bailment in detinue on the original delivery, and a detinue is the adequate remedy, and upon the delivery English is liable hi detinue, and consequently this promise by the defendant is collateral, and is within the reason and the very words of the statute ; and is as much so, as if, where a man was indebted, J. S. in consideration that the debtee would forbear the mr.n, should promise to pay him the debt ; such a promise is void unless it be in writing. Suppose a man comes with another to a shop to buy, and the shop-keeper should say, ' I will not sell him the goods, unless you will under- take he shall pay me for them,' such a promise is within the statute : other- wise, if the man had been the person to pay for the goods originally. So here, detinue lies against English the principal ; and the plaintiff having this remedy against English the principal, cannot have an action against the de- fendant the undertaker, unless there had been a note in writing." So, if A. promises B., being a surgeon, that if he will cure D. of a wound he will see him "paid ; this is only a promise to pay if D. does not, and therefore, it ought to be in writing by the statute of frauds. But if A. promise in such a case, that he will be B.'s paymaster, whatever he shall deserve, it is immedi- ately the debt of A. and he is liable without writing, (b) There is a distinc- tion between a conditional and an absolute undertaking ; as if A. promise to pay B. such a sum if C. does not, there A. is but a security for C. But if A. promise that C. will pay such a sum, A. is the principal debtor ; for the act done was on his credit, and no way upon the credit of C.(c) (105) (6) Per Holt, Ch. J. 1 Lord Raym. 224. (c) Per Lee Ch. J. Fitzgib. 303. (105) Undertakings to answer for the debt, default or miscarriages of another person, are said to be either collateral or original. In either case, a sufficient consideration is indis- pensable : And if the undertaking be collateral, it must also be in writing, and signed by the party, or his agent. The law is well settled, that if the person, on account of whose debt, default or miscarriage the undertaking is made, be in any manner liable for the same, so that the whole responsibility does not rest upon the guarantor, the undertaking is col- lateral. This principle is illustrated by the following cases. Turner v. Hubbell, 2 Day, 457. Simpson v. Patten, 4 J. R. 422. Jackson v. Rayner, 12 J. R. 291. Peabody v. Har- vey, 4 Conn. Rep. 119. Huntington v. Harvey, Id. 124. Gallager v. Brunei, 6 Cowen, 346. Tileston v. Nettleton, 6 Pick. 509. Waggoner v. Gray's Admrs. 2 Hen. & Munf. 603. Floyd Chap. 2.] For the Debt or Default of Another. 192 •With respect, however, to the sale of goods, the settled rule now is, that if the person for whose use the goods are furnished, be li; ble at all, any other promise by a third person to pay that debt must be in writing, otherwise it is void by the statute.(d)(106) Thus, in the case of Jones v. Cooper,(e) which was an action for goods sold and delivered : the facts were these ; the defendant had frequently given written orders to the plaintiff to deliver goods of diffe- rent kinds to one Smith, her son-in-law ; in all of which she undertook to be answerable for the payment. These had been all punctually discharged. But the goods upon which the present question arose were delivered to Smith, in consequence of a parol order, and a parol promise by the defendant in these words : " I will pay you if Smith will not." That the undertaking was before the delivery of the goods ; but that Smith was entered as the debtor in the plaintiff's books. The Court determined, that the promise by the defendant in this case to pay if Smith did not, is a collateral undertaking within the statute of frauds : they said, " it is so clear that it would only be mis-spending time to go through the cases, or to say much about it." So, in the case of Malson and another v. Wharam, (f) which was also an action for goods sold and delivered : and the facts were as follow ; in January 1785, the defendant Wharam applied to Matson, one of the plaintiffs, and asked him if he was willing to serve one Robert Coulthard of Pontefract with groceries ; he answered they dealt with nobody in that part of the country, and did not know Coulthard ; to which the defendant, Wharam, replied, " If you do not know him, you know me, and I will see you paid.' 1 '' Matson then said he would serve him ; and Wharam answered, " He is a good chap, but I will see you paid." A letter was afterwards received by the plaintiffs from Coulthard, containing an order for goods to the amount of 71. and the~goods were afterwards sent to Coulthard accordingly. The plaintiffs made Coulthard the debtor for these goods in their books. They afterwards applied to Coulthard for pay- ment of the debt by letter, and receiving no answer, they then applied to the defendant, Wharam, who refused to pay the money. There was no promise in writing made by the defendant ; and the question for the opinion of the (d) Per Buller J. 2 Term Rep. 81. (/) 2 Term Rep. 80. (e) Cowp.227. v. Harrison, 4 Bibb. 76. See Elting v. Vanderlyn, 4 J. R. 237. Leonard v. Vredenburgh, 8 J. R. 23. 2d edit. But, if the party for whom the promise is made, be under no liability on account of the particular debt, default or miscarriage, for which the guaranty is given, and the whole re- sponsibility be assumed by the promisor, the undertaking is original, and not within the statute. Upon the preceding general principle, the following cases were decided. Jlllaire v. Ouland, 2 J. C. 52. Harrison v. Sawtel, 10 J. R. 242. Perky v. Spring, 12 Mass. Rep. 297. Duval v. Trask, Id. 154. Toionsley v. Sumrall, 2 Peters, 1S2. Farley V.Cleveland, 4 Cowen, 432. Skelton v. Brewster, 8 J. R. 293. 2d edit. Stocking v. Sage, 1 Conn. Rep. 519. Gold v. Phillips, iO J. R. 412. Myers v. Morse, 15 J. Rep. 425. Chase v. Day, 17 J. R. 114. Shngerland v. Morse, 7 J. R. 463. Mease v. Wagner, 1 M'Cord, 395. Madden v. M'Cray, Id. 486. Olmstead v. Greenley, 18 J. R. 12. (106) Lelandv. Creyon, 1 M'Cord, 100. Tilestonx. Nettleton, 6 Pick. 509. A promise to indorse the note of a third person, by which he obtains credit, to be binding, must be in writing. Gallager v. Brunei, 6 Cowen, 34C. *192 192 Of a Guarantee or Promise to be Answerable [Part II. Court was, whether the plaintiffs were entitled to recover. The Court were of opinion, that this was a collateral promise to pay in case Coulthard did not, and therefore within the statute ; consequently the plaintiff was not entitled to recover. And in another case of Anderson v. Hayman (g) which was an action of assumpsit : at the trial, the jury found a verdict for the defendan on these facts : the plaintiff was a woollen-draper in London, and employed one Biffin as a rider to receive orders from his customers in the country. *The defendant meeting with Biffin at Deal, desired him to write to the plaintiff, requesting him to sup- ply the defendant's son (who traded to the West Indies) with whatever goods he might want, on his, the defendant's credit, and at the same time said, " Use my son well, charge him as low as possible, and I will be bound for the pay- ment of the money as far as 800/. or 1000/." Biffin accordingly wrote to the plaintiff the following letter ; " Mr. Hayman of this town says his son will call on you and leave orders, and he has promised me to see you paid if it amounts to 1000/. Mr. William Pitches was also present as a witness." N. B. " If deal for 12 months' credit, and pay in 6 or 8 months, expects discount in pro- portion." — Soon after the son received goods from the plaintiff to the amount of 800/. which were delivered to him in consequence of the above-mentioned or- der from the father. The son was debited in the plaintiff's books, and being applied to for payment, wrote an answer to the plaintiff as follows ; " Your fa- vour of the 27th past has been forwarded to me from Ostend by my clerk, in answer to which I can only say, that I understood your credit for the goods was 12 months, which was also mentioned by your rider to my father. I shall at this rate make you remittances for the different parcels as they come due, and remain, &c. Thomas Hayman, junior." The son afterwaids became a bankrupt, and this action was brought against the father, to recover the value of the goods. The Court, on a motion for a new trial, were clearly of opinion, that this promise, not being in writing, was void by the statute of frauds, as it appeared from the evidence of the letter of Hayman the younger, that credit was given to him, as well as the defendant. But, in the case of Harris v. Huntbach,(h) which was an action for money lent ; the question for the opinion of the Court was, whether the promise was a collateral or original undertaking. It appeared from the evidence, that one Davidson coming to the plaintiff by the defendant's order for money to pay workmen, the plaintiff refused to pay the money unless the defendant would sign a receipt. Whereupon the defendant wrote the following note, viz. " Mr. Harris at the request of the gardener, the workmen wanting money greatly, for the work at the woodhouses, this is to certify that it is my request you pay to Mr. Davidson, on the account of Master Hillier, for the workmen's use, the sum of 15/. as witness my hand, S. Huntbach," and a receipt was given by the said Davidson, the gardener, to the plaintiff, on the plaintiff's paying him this 15/. (g) 1 H. Bl. 120. (fc) 1 Bur. 373. *193 Chap. 2 J For the Debt or Default of Another. 193 It also appeared that Master Hillier, at the time the money was advanced, was an infant, and that the woodhoiises belonged to him. The Court determined, that the note amounted to an *original undertaking ; and that there was nothing like a collateral request or promise. And Foster Just, said, " The infant was not liable, and therefore it could not be a collateral undertaking. It was an onVjnaZ undertaking of the defendant." It is, however, in many cases very difficult to discover from the mere ex- pressions of the party, to whom the credit was originally given ; and therefore, in some instances, it is deemed necessary to take into consideration not only the expressions used, but the particular situation of the defendant at the time of his undertaking. Thus, in the case of Keale v. Temple, (?) which was an ac- tion for goods sold and delivered, and work and labour. The principal facts proved at the trial, before Lawrence Just., were these : The plaintiff was a tai- lor and slop-seller at Portsmouth, and the defendant the first lieutenant of his Majesty's ship the Boy tie. When that ship came into port, the defendant ap- plied to a third person to recommend a slop-seller who might supply the crew with new cloaths, saying, " He will run no risk ; I will see him paid." The plaintiff being accordingly recommended, the defendant called upon him and used these words, " I will see you paid at the pay-table ; are you satisfied V He answered, "perfectly so," The cloaths were delivered on the quarter deck of the Boyne ; slops are usually sold on the main deck ; the plaintiff produced samples to ascertain whether his directions had been followed ; some of the men said that they were not in want of any cloaths, but were told by the defendant that if they did not take them he would punish them ; and others, who stated that they were only in want of a part of a suit, were obliged to take a whole one, with anchor buttons to the jacket, such as are usually worn by petty officers only. The cloathing of the crew in general was light, and adapted to the climate of the West Indies, where the ship had been last stationed. Soon after the delivery, the Boyne was burnt ; and the crew dispersed into different ships. On that occasion the plaintiff, having expressed some apprehensions for himself, was told by the defendant, " Captain Grey (the captain of the Boyne) and I will see you paid ; you need not make yourself uneasy." After [this the commissioner came on board the Commerce tie Marseilles, in order to pay the crew of the Boyne ; at which time the defendant stood at the pay-table, and having taken some money out of the hat of the first man who was paid, gave it to the plaintiff ; the next man refused to part with his pay, and was immedi- ately put in irons. The defendant then asked the commissioner to stop the pay of the crew, who answered that it could not be done. The learned judge, before whom the cause was tried, in his direction to the jury, said, "that if they were satisfied on the evidence, that the goods in ques- tion were advanced on the credit of the defendant, *as immediately responsi- ble, the plaintiff was entitled to a verdict; but if they believed, that at the time when the goods were furnished, the plaintiff relied on being able, through the (i) 1 Bos. &Pul. 158. 25 *194 *195 195 Of a Guarantee or Promise to be Answerable [Part II. assistance of the defendant to get his money from the crew, they ought to find for the defendant." The jury found a verdict for the plaintiff 576Z. 7s. Sd. But the Court afterwards directed a new trial ; and Eyre Ch. J. said, " There is one consideration, independent of every thing else, which weighs so strongly with me that I should wish this evidence to be once more submitted to a jury. The sum recovered is 5767. 7s. 8d. ; and this against a lieutenant of the navy ; a sum so large that it goes a great way towards satisfying my mind that it never could have been in the contemplation of the defendant to make himself liable, or of the slop-seller to furnish the goods on his credit to so large an amount. And the question is, whether the slop-seller did not in fact rely on the power of the officer over the fund out of which the men's wages were to be paid, and did not prefer giving credit to that fund rather than to the lieu- tenant, who, if we are to judge of him by others in the same situation, was not likely to be able to raise so large a sum ? Considering the whole bearing of this evidence, I think this a proper case to be sent to a new trial." Besides the cases already cited, there are many others, in which several dis- tinctions have been taken, as to what promises do or do not fall within this clause uf the statute ; and from the whole, the following points may be consid- ered as settled ; first, that where the party promising is in any respect liable to the original debt or duty, either alone or jointly Avith others, such promise is not within the statute ; secondly, if the promise be made upon a consideration mov- ing to the party promising, it is also out of the statute, even though it be to an- swer solely for the debt or default of another. But thirdly, where the consider- ation is a mere indulgence or forbearance to the debtor, and the promise is made upon that consideration alone, such promise is within the statute ; and fourthly, the agreement in such case must not only be in writing, and signed, but the consideration for the promise must also be stated in the agreement. I will now consider them in their order. 1. Where the Party promising is in any respect liable to the original Debt, or Duty, either alone, or jointly avith others.] — Upon thispointthe folloAving distinction has been taken, viz. if two come to a dra- per, and one of them says, "Let this person have so much cloth, and I'll pay you for it ;" there the sale is to him only Avho gives the order, though the delivery be to another ; and he alone is liable. But if a contract be made with A., and the vendor scruples to let the goods go without the money ; and B. comes to him, and desires him to let A. have the goods, and undertakes that A. shall pay him ; in this case A. is the original debtor, and B. is only ansAvera- ble upon his promise in *case A. makes default in payment. (I) And this distinc- tion will be found throughout all the cases on the subject. Thus, in the case of Stephens v. Squire, (m) which Avas an action of assumpsit to pay 10/. and costs. The facts Avere these : an action had been brought against the defendant and two others ; and the cause Avas carried down to be tried at the assizes ; but the defen- (0 Per Curiam, 6 Mod. 219. 12 Mod. 250. (m) 5 Mod. 205. Comb. 362. S. C. *196 Chap. 2.] For the Debt or Default of Mother. 196 dant promised, in consideration that the plaintifl' would not prosecute the action, that he would pay 10/. and costs of suit. The question was whether this was a void promise by the statute of frauds, it not being in writing ? The Court de- termined, that this could not be said to be a promise for another person, but for the defendant's own debt ; and therefore not within the statute. So, in the case of Read v. Nash,(?i) the facts were these : Tuack, the plain- tiff's testator, brought an action of assault and battery against one Johnson. The cause being at issue, the record entered, and just coming on to be tried, the defendant Nash being then present in court, in consideration that Tuack would not proceed to trial, but would withdraw his record, promised to pay Tuack 50/. and the costs in that cause, to be taxed till the time of withdrawing the record, in which taxation all such sums of money were to be allowed as Tuack had paid and was liable to pay to his attorney and witnesses who attended the trial. Tuack, relying upon this promise, did withdraw his record, and no further pro- ceeding was had in that cause. Tuack being dead, Read, his executor, brought an action upon this special promise, which was merely verbal, and not reduced into writing. The case was twice argued at the bar ; and, after time taken by the Court to consider it, Lee Ch. J. delivered the opinion of the Court as fol- lows : " The single question is, whether this promise which is confessed by the demurrer not to have been in writing, is within the statute of frauds and per- juries ? that is to say, whether it be a promise for the debt, default, or miscar- riage of another person ? And we are all of opinion that it is not, but that it is an original promise, sufficient to found an assumpsit upon against Nash, and is a lien upon Nash, and upon him only. Johnson was not a debtor ; the cause was not tried ; he did not appear to be guilty of any default or miscarriage ; there might have been a verdict for him if the cause had been tried, for any thing we can tell ; he never was liable to the particular debt, damages, or costs. The true difference is between an original promise, and a collateral promise ; the first is out of the statute, the latter is not, when it is to pay the debt of an- other which was already contracted." 2. Of the Consideration moving to the party promising.] — If the consideration, upon which the promise is made, be moving to the party prom- ising, in that case the promise is not within the statute : *Thus, in the case of Williams v. Leper,{o) the facts were as follow : Taylor, a tenant of the plain- tiff, being in arrear for rent, to the amount of 45/. for three-quarters of a year, and insolvent, conveyed all his effects for the benefit of his creditors. They employed Leper, the defendant, as a broker, to sell the effects, who accordingly advertised a sale. On the morning advertised for the sale, Williams, the land- lord, came to distrain the goods in the house. Leper having notice of the plaintiff's intention to distrain them, promised to pay the arrear of rent, if he would desist from distrairiing. Williams, on the faith of this promise, accordingly desisted. At the trial, a verdict was found for the plaintifl for 45/. ; but a ques- (n) 1 Wils. 305. Castling v. Aubert, post. 199. where this case (o) 3 Bur. 1336. 2 Wils. 30S. S. C. Vide is recognised. « 197 197 Of a Guarantee or Promise to be J?iswerable[Vixrt II. tion was reserved for the opinion of the Court, whether or not this was such a special promise for the debt of another as was within the statute of frauds ? And after argument, Lord Mansfield Ch. J. said, " The case has nothing to do with the statute of frauds. The res gesla would entitle the plaintiff to his action against the defendant. The landlord had a legal pledge ; he entered to distrain ; he had the pledge in his custody. The defendant agreed, ' that the goods should be sold, and the plaintiff paid in the first place.' The goods were the fund : the question was not between Taylor and the plaintiff. The plaintiff had a lien on the goods. Leper was a trustee for all the creditors, and was obliged to pay the landlord, who had the prior lien : this has nothing to do with the statute of frauds." Wilmot and Yates, Justices, were of opinion, that this was an original promise ; and Mr. Just. Aston said, " He looked upon the goods to be the debtor ; and that Leper was not bound to pay the landlord more than the goods sold for, in case they had not sold for 45/. The goods were a fund between both ; and on that foot he concurred. "(107) The principle upon which this case was determined was recognised in Houlditch v. Milne, (p) It was an action of assumpsit for the repair of car- riages ; and the facts in support of it were, that certain carriages which belong- ed to Mr. Copcy had been sent by the defendant to the plaintiff's to be repair- ed, but the orders concerning them were given by the defendant. One of the carriages had been brought by Mr. Copey himself, and paid for by him ; and the bill, which was the object of the action, contained a charge for repairs done to this carriage, and was made out in the name of Copey. When the carriages were repaired, the defendant sent an order to pack them up, and send them on board ship ; the plaintiff upon this sent to him to know who was to pay for (p) 3 Esp. Rep. 86. (107) A debtor imprisoned on original process, placed in the hands of B. property suffi- cient to indemnify hail ; whereupon, B. solicited C. to become bail for the debtor, and prom- ised by parol, to save him harmless ; this was held to be an original and not a collateral undertaking, and so, not within the statute of frauds. Perky v. Spring, 12 Mass. Rep. 297. So, where A., a member of a manufacturing company, in consideration that B. the holder of a promissory note against the company, would deposit the note with a third per- son, until A. could take up another note made by B. to C, and with the proceeds thereof, pay the first mentioned note, promised B. to indemnify him against the payment of his note toC. ; it was held, that such promise was not within the statut. Colt v. Root, 17 Mass. Rep. 229. And so, where a promise to pay the debt of a third person arises out of some new consideration of benefit to the promisor, injury or inconvenience to the promisee, moving from the promisee or original debtor, such promise is not within the statute of frauds ; though the original debt still subsist, and remain wholly unaffected by the agreement : Thus, where M. was indebted to F., and C, in consideration that M. would deliver to him (C.) a quantity of hay of the value of the debt, promised by parol, to pay the debt due from M. to F. Cleve- land v. Farley, 9 Cowen, 639. And so, where the defendant, who had received goods for the purpose of paying the debts of A., promised B., a creditor of A., and who was about to attach the goods to secure the payment of his debt, that if he would wait until fall, he would pay the debt ; it was held, that the promise was an original undertaking, and not within the statute of trauds. Madden v. MOray, 1 M'Cord, 486. " See Skelton v. Brewster, 8 J. R. 293. 2d edit. So also, where the plaintiff" attached a horse, the property of his absent debtor, in the possession of the defendant, who promised, that if the plaintiff' would release the horse, he would pay the debt ; it was held, that this was a valid promise, and not within the statute of frauds, .'hikinson v. Barfield, 1 M'Cord, 575. See Slingerlandv. Morse, 7 J. R. 463. and notes («) &. (b). 464. Chap. 2.] For the Debt or Default of Another- 197 them : the defendant said he had sent them, and he would pay for them. The carriages were afterwards packed up and sent on board ship, and the bill was made out and delivered to the defendant ; he desired time *to look over it ; and when the plaintiff's clerk called a second time, he said the charges appeared very high : but desired the clerk to call in a few days, and he would settle it- Not having done so, the plaintiff's attorney waited upon him, when the defen- dant said, that he had been told that the bill was a most exorbitant one, and a fit subject to refer. However, he said, he had money to pay it, though he did not say, whether it was his own or Copey's. Upon these facts it was contend- ed, on behalf of the defendant, that this case was within the statute of frauds. But Lord Eldon Ch. J., before whom the cause was tried, said, " If a person obtained possession of a tenant's goods on which the landlord had a right to distrain for rent, and he promised to pay the rent, though it was clearly the debt of another, yet a note in writing was not necessary ; that such. a case appear- ed to apply precisely to the one before him. The plaintiff had to a certain ex- tent alien upon the carriages, which he parted with on the defendant's promise to pay. His lordship therefore was of opinion, that that circumstance took the case out of the statute, and consequently that the defendant was liable for the amount of the bill. So, in the case of Castling v. Aubert,(q) where the following case was stat- ed for the opinion of the Court of King's Bench : The plaintiff was employed by one E. P. Grayson as his general agent ; and, as an insurance broker, had effected for his use certain policies of assurance mentioned in the declaration, of the value of 3000/. ; that the plaintiff was under acceptances for Grayson, for bills drawn by Grayson for his own accommodation ; and that the plaintiff had a lien on the said policies to indemnify himself against his said acceptances. That a loss having happened on the policies of insurance, which the underwrit- ers had agreed to pay, but which Grayson could not receive without having the policies to produce, the plaintiff was applied to, to give them up for that purpose to the defendant, into whose hands Grayson had at that time transferred the management of his insurance concerns. That some of the plaintiff's said acceptances for the use of Grayson being then outstand- ing and unpaid, and particularly the bill for 181/. Is. mentioned in the declara- tion then in the hands of one Calor, upon which writs had been sued out (though not then executed) against Grayson as the drawer, and the plaintiff as accep- tor ; the plaintiff refused to deliver up the policies of assurance, they being the only securities he had against his said acceptances, without an indemnity ; and that thereupon a meeting was held between the plaintiff, and defendant, and Grayson, at which it was verbally agreed between the parties, that the defen- dant should pay into the hands of a banker 712/. 13s. 6d., to answer in part certain other acceptances of the plaintiff's, exclusive of the bill for 181/. Is. *and that the plaintiff should provide 241/. 14s. 6d. towards paying one of his {q) 2 East Rep. 325. *198 *199 199 Of a Guarantee or Promise to be Answerable [Part II. acceptances for 350/. ; and that the defendant should pay the bill of 181Z. "Is. and the costs of the action which had been brought thereon against Grayson, amounting together to 202/. ; and that thereupon the said policies should be delivered up to the defendant. That in pursuance of this agreement, the de- fendant paid into the banker's hands 712/. 13s. 6d., and the plaintiff delivered up the policies to the defendant. That the defendant received from the under- writers the amount of other subscriptions on the policies so delivered up to him by the plaintiff. That the defendant was afterwards called upon by the attor- ney of Cator to pay the said 202/. for the debt and costs on the bill in Cator's hands, but refused to do so ; nor had he paid it at the time this action was com- menced ; and that in consequence of such refusal the plaintiff was arrested at the suit of Color, as acceptor of the said bill of exchange, and sustained dama- ges thereby to the amount found by the jury, viz. 25/. The question for the opinion of the Court was, whether the promise of the defendant to pay the said 202/. due from Grayson for the said debt and costs, on having the said policies of insurance delivered to him, was void under the statute of frauds ; or whether he were liable by reason of the plaintiff's parting with the possession of those policies upon which the plaintiff had a lien, and which were so deposited with the defendant 1 The Court were of opinion, that this was not a promise for the debt or default of another within the statute of frauds, but an original undertak- ing. And Lord Ellenborough Ch. J., said, " I am clearly of opinion, that this is neither an undertaking for the debt, default or miscarriage of another within the statute. It could not be for the debt, but rather for the credit of another ; for when the promise was made, no debt was incurred from Grayson Jo the plaintiff; therefore, if at all within the statute, it must be for the default or mis- carriage of another. It is quite beside the mischief provided against by the statute ; which was, that persons should not, by their own unvouched un- dertaking, without writing, charge themselves for the debt, default, or mis- carriage of another. In the case of a bill of exchange for which sev- eral persons are liable, if it be agreed to be taken up and paid by one, even- tually others may be discharged ; and the same objection might be made there : but the moving consideration is the discharge of the party himself, and not of the rest, though that also ensues. I agree with the decision in Williams v. Lcper,(r) to the full extent of it : I agree with those of the judges who thought the case not within the statute of frauds at all. So, in the case of Anstey v. Harden, (s) which was an action of assumpsit ; and upon the trial, it appeared in evidence, that the defendant *being in dis- tressed circumstances, the plaintiff and three other creditors of the defendant mot, and finding that he could only pay 7s. 6d. in the pound, they came to an agreement to accept from one T. Weston, the defendant's father-in-law, 10s. in the pound in satisfaction of the debts due to them from the defendant, and to assign those debts to the said T. Weston ; and an agreement was accordingly (>•) Ante, 197. (s) 1 New Rep. C. B. 124. *200 Chap. 2] For the Debt or Default of Another. 200 prepared for that purpose. — The three other creditors signed this agreement, and received their respective sums of money, to the amount of \0s. in the pound from T. Weston, and the plaintiff at one time authorised Greenwood (one of the three creditors who signed) to sign for him when he signed for himself ; but Greenwood having omitted so to do, the plaintiff revoked his authority, and re- fused to execute the agreement, or accept the JO.?, in the pound on his debt. On behalf of the plaintiff it was objected, that Weston's undertaking to pay 10s. in the pound in discharge of the defendant's debt was void by the statute of frauds, no agreement by which Weston could be charged having been signed by him, and therefore the plaintiff's undertaking to accept 10s. in the pound was nudum pactum. But the Chief Justice ruled that the undertaking of Wes- ton was not within the statute of frauds. And the Court of Common Pleas af- terwards, upon a rule to shew cause why there should not be a new trial, con- firmed his lordship's opinion, and determined, that this agreement was not with- in the statute ; it not being a collateral promise to pay the debt of another, but an original contract to purchase the debts. 3. Of a Promise to pay the Debt of a Third Person in conside- ration of forbearance to sue the Debtor, &c] — It is now settled, that a mere promise to pay the debt of a third person in consideration of forbear- ance only, is within the statute, and such promise must be in writing. (108) This point was raised in the case of Fish v. Hutchinson, (t) which was an ac- tion of assiunpsit ; the plaintiff declared that whereas one Vickars was indebt- ed to him in a certain sum of money, and had commenced an action for the same ; that the defendant in consideration that the plaintiff would stay his ac- tion against Vickars promised to pay plaintiff the money owing to him by Vick- ars. It was objected, that this promise being by parol was within the statute. The counsel for the plaintiff insisted that this was an original contract between the plaintiff and defendant, and therefore not within the statute ; and cited Read v. Nash(u) as in point. But the Court said, " This case was very clearly within the statute ; for here is a debt of another person still subsisting, and a promise to pay it : and it is not like the case of Read v. Nash, for that was an action of assault and battery brought by the plaintiff's testator against one John- son ; the cause was at issue, the record of nisi prius entered, and just coming on to be tried, when *the defendant Nash, being present in court, in considera- tion that plaintiff's testator would not proceed to try his cause, but would with- draw his record, promised to pay him 501. and costs to be taxed in that suit ; so in that case there was no debt of another, it being an action of battery, and it could not be known before trial whether the plaintiff would recover any dam- (0 2Wils.84. Stra. 873. S. P. (u) Ante, J 96. (108) See Tileston v. Jfettlcton, 6 Pick. 509. A parol promise by A. to B., that if he would discontinue an attachment against C, he (A.) would pay to B. the debt, is within the statute of frauds. Boyce v. Owens, 2 M'Cord, 208. *201 201 Of a Guarantee or Promise to be Answerable [Part II. ages or not ; but in the present case here is a debt of another still subsisting, and a promise to pay it." So, a promise by the indorser of a dishonoured note, to indemnify the hold- er, if he will proceed to enforce the payment against the other parties thereon, must be in writing, otherwise it is void. Thus, in the case of Winckworth v. Mills, (y) which was an action of assumpsit. The plaintiff was indorsee of a promissory-note made by one Sharp in favour of Taylor and Son, for 60/., payable three months after date, and indorsed by them to the defendant, and by him indorsed to the plaintiff. When the note became due, it was dishonour- ed by the maker, upon which the defendant, having notice thereof, came to the plaintiff and promised him that if he would endeavour to recover the amount of it from the maker, or Taylor and Son, that he would indemnify him. Sharp was insolvent ; and the plaintiff thereupon sued Taylor and Son to judgment, but could not obtain from them more than 307., and therefore brought his action against the defendant for the remainder of the note, and also the costs and ex- pences. Lord Kenyon Ch. J., before whom the cause was tried, enquired if there had been any note in writing of the promise to indemnify ; the counsel for the plaintiff answered in the negative ; but contended that it was not necessa- ry, as the defendant was himself a party to the note, and to be benefited by the proceedings against Taylor and Son. His Lordship, however, ruled, that this was a promise for the debt and default of another, and not being in writing, was void under the statute of frauds : and the plaintiff could only recover the remainder of the sum due upon the note, without the costs and expences of the action against Taylor and Son. So, a parol promise to pay the debt of another, and also to do some other act, is void by the- statute, the contract being entire. This was settled in the case of Charter v. Beckett, (w) which was an action of assumpsit on a special agreement, and for money paid, tried before Lord Kenyon. At the trial, the plaintiff's counsel stated, that the facts of the case were these : that the plain- tiff, who had struck a docket against /. Harris,, was induced not to prosecute the commission of bankruptcy, but to sue him at law for the recovery of his debt, and having sued out a writ against him, some of Harris's creditors were anxious to take a composition for their debts, provided all of them would agree to it ; and to effect this scheme, the plaintiff called several meetings of Harris's creditors, at the *last of which a composition of 10s. in the pound was proposed, which all the creditors, except the plaintiff, consented to take : but as the plaintiff had been put to great expences in striking the docket against Harris, suing out a writ, and calling the creditors together, he would not agree to take that composition unless those expences were also paid, in conse- quence of which the defendant promised to pay those expences, and to accept bills drawn by the plaintiff on him to the amount of the composition. The plaintiff accordingly drew bills on the defendant to that amount, which the lat- (t>) 2 Esp. Rep. 484. (u>) 7 Term Rep. 201. See also Coke v. Tombs, Anstr. 420. Lea v. Barber, lb. 425. *2oa Chap. 2 J F or the Debt or Default of Another 202 ter accepted and paid: but the defendant refusing to pay the plaintiff's expen- ces, amounting to 20£. 13s. the plaintiff paid them to the attorney, and brought this action to recover the same from the defendant on his undertaking. But this undertaking not being in writing, Lord Kcnyon was of opinion that the case came within the statute of frauds, and nonsuited the plaintiff, refer rinr the sale ofland.it is unnecessary that the consideration for the imsnt sh uld be expressed in writing, but that it may be collected from the circumBtan- oes of the transaction. Tingley v. Cutler, 7Conn. Rep. 291. *203 Chap. 2J For the Debt or Default of Another. 203 also required by the statute to be in writing ; and that this omission could not be supplied by parol evidence, (which the plaintiffs proposed to call in order to explain the occasion and consideration of giving the note) ; and that for want of such consideration appearing upon the face of the written memorandum it 6tood simply as an engagement to pay the debt of another without any consid* eration, and was therefore nudum pactum, and void. Lord Ellcnborouo-h Ch. J., before whom the cause was tried, being of this opinion, nonsuited the plaintiff. And upon a motion for a rule to set aside this nonsuit, the Court de- termined that the consideration ought to have been stated in the agreement ; and therefore discharged the rule. His Lordship in delivering his opinion in court said, " In all cases where by long habitual construction the words of a 6tatute have not received a peculiar interpretation, such as they will al- low of, I am always inclined to give to them their natural ordinary significa- tion. The clause in question in the statute of frauds has the word agreement (*« unless the agreement upon which the action is brought, or some memoran- dum or note thereof shall be in writing," &c.) And the question is, whether # that word is to be understood in the loose incorrect sense in which it may some- times be used, as synonymous to promise, or undertaking, or in its more prooer and correct sense, as signifying a mutual contract on consideration between two or more parties? The latter appears to me to be the legal construction of the word, to which we are bound to give its proper effect ; the more so when it is considered by whom that statute is said to have been drawn, by Lord Hale, one of the greatest judges who ever sat in Westminster Hall, who was as competent to express as he was able to conceive the provisions best calculat- ed for carrying into effect the purposes of that law. The person to be charged for the debt of another is to be charged, in the form of the proceeding against him, upon his special promise ; but without a legal consideration to sustain it, that promise would be nudum pactum as to him. The statute never meant to inforce any promise which was before invalid, merely because it was put in writing. The obligatory part is indeed the promise, which will account for the word promise being used in the first part of the clause, but still, in order to charge the party making it, the statute proceeds to require that the agree- ment, by which must be understood the agreement in respect of which the promise was made, must be reduced into writing. And, indeed, it seems necessary for effectuating the object of the statute that the consideration should be set down in writing as well as the promise: for otherwise the consideration might be illegal, or the promise might have been made upon a condition precedent, which the party charged may not afterwards be able to prove, the omission of which would materially vary the promise, by turning that into an absolute pro- mise which was only a conditional one : and then it would rest altogether on the conscience of the witness to assign another consideration in the one case, or to drop the condition in the other ; and thus to introduce the very frauds and per- juries which it was the object of "the act to exclude, by requiring that the agree- ment should be reduced into writing, by which the consideration, as well as the promise, would be rendered certain. The authorities referred to by Comyns ♦"204 204 Of a Guarantee or Promise to be Answerable [Part II. all show that the word agreement is not satisfied unless there be a consideration, which consideration forming part of the agreement ought therefore to have been shown ; and the promise is not binding by the statute unless the consider- ation, which forms part of the agreement, be also stated in writing. Without this, we shall leave the witness whose memory or conscience is to be refresh- ed to supply a consideration more easy of proof, or more capable of sustaining the promise declared on. Finding therefore the word agreement in the statute, which appears to be most apt and proper to express that which the policy of the law seems to require, and finding no case in which the proper meaning of it has been relaxed, the best construction which we can make of the clause is to give its proper and legal meaning to every word of it."' •This decision of the Court of King's Bench was frequently noticed in sub- sequent cases.(d) as to the construction put upon the fourth clause of the sta- tute of frauds ; and it was thought by some very eminent and learned judges, that that decision was at variance with former determinations, and contrary to the generally received opinion in Westminster Hall. This point, however, has again been recently brought before the same Court, in the case of Saunders v. Wakefield, (e) and, after much argument, in which several of the authorities just referred to were cited, the same judgment was given as in Wain 6f Wal- ters' case : and it should be observed, that the learned judges who formed the court when this last decision took place, were all different from those who had given judgment in Wain 8$ Warlters'' case. And Mr. Just. Holroyd, in deliv- ering his opinion in that case, says, " Whether we consider the general object of the statute, or the particular object of the fourth clause, it seems to me to be necessary, that the consideration for the promise should be stated in writing. The consideration is the very ground of the action, and without it the action will not lie. In the present case, that which is reduced into writing affords of itself no ground of action. The general object of the statute was, to take away the temptation to commit fraud by perjury in important matters, by making it requisite in such cases for the parties to reduce the circumstances to writing. The particular object of the fourth clause was, to prevent any action being brought in certain cases, unless there was a memorandum in writing. The ob- ject of both was, that the ground and foundation of the action should be in writ- ing, and should not depend on parol testimony. Unless, therefore, what is sufficient to maintain the action be in writing, no action can be supported. If we take the word " agreement," used in the fourth section in its strict sense, it would seem to imply, that the whole of that which is agreed between the par- ties should be in writing, and the other cases mentioned in the clause support such a construction. For upon an agreement upon consideration of marriage, or a contract for the sale of lands, it is quite clear, that the consideration must (d) Vide Ex parte Minet, 1-i Ves. 190. (e) 4 Barn. & Aid. 595. And see 3 Brod. Ex parte Gardom, 15 Vee. 2S6. Morris v. & Bing. 14, 211. 8 Taunt. 679. 1 Bing. 5.'.,-r>/, Holt N. P. 1 ."i 1. Rep. 21 6. *205 Chap. 2.] For the Debt or Default of Another. 205 be stated in writing. But whether we construe the word in its strict sense or not, still, inasmuch as without a consideration there can be no ground of action, it seems to me, that, upon this clause, the consideration must be stated in writ- ing. In the present case, that which is reduced into writing, is merely an en- gagement to pay the bill. Now, unless there be a consideration for that, no action lies upon such a promise. If a consideration is to be introduced, it may be either past or future, and must be proved by parol evidence. If that were allowed, all the danger *which the statute of frauds was intended to prevent, would be again introduced. I am therefore of .opinion, that there must be judg- ment for the defendant." There is however a material distinction between the seventeenth clause of this statute, which relates to the sale of goods, and the fourth clause relating to the payment of a debt of a third person : and this distinction was settled very recently after the determination of Wain v. Warltcrs, in the case of Egerlon v. Maltheivs,(f) which was an action on the case against the defendants for not accepting and paying for certain goods, which they had contracted to purchase by the following memorandum in writing : "We agree to give Mr. Egerton\9d. per lb. for 30 bales of Smyrna cotton, customary allowance, cash 3 per cent, as soon as our certificate is complete, Signed, Matthews Sad Turnbull, and dated 2d September, 1823." The Court, on referring to these two clauses of the statute, decided that this was a sufficient memorandum within the words of the seven- teenth clause ; and Lord Ellenborough Ch. J. said, " The words of this clause were satisfied if there were some note or memorandum in writing of the bargain, signed by the parties, to be charged by such contract. And this was a memo- randum of the bargain, or at least of so much of it as was sufficient to bind the parlies to be charged therewith, and whose signatures to it is all that the sta- tute requires." And Laurence Just, said, " The case of Wain v. Warltcrs proceeded on tiiis, that in order to charge one man with the debt of another, the agreement must be in writing ; which word agreement we considered as pro- perly including the consideration moving to, as well as the promise by the par- ty to be so charged ; and that the statute meant to require that the whole agree- ment, including both, should be in writing." So in the case of Stadt v. Lilt,(g) which was an action on the case for the breach of a guarantee in not paying the value of goods delivered by the plain- tiff to one Nichols. The defendant gave a written guarantee signed by him in this form : " I guaranty the payment of any goods which J. Stadt delivers to .7. Nichols." It was objected at the trial, before Lord Ellenborough Ch. J., upon the authority of the case Wain v. Warlters, that this guarantee was void, be- cause there Mas no consideration stated for the promise. But his Lord.ship was of opinion, that the stipulated delivery of the goods to Nichols was a con- sideration appearing on the face of the writing, and when the delivery took (/) 8 East Rep. 307. See also Russell v. Mosely, 3 Brod. ft Bing. (g) 9 East Rep. 348. and 1 Cainpb. 242. 211. *206 206 Of a Guarantee or Promise to be Answerable [Part II. place, the consideration attached : and he directed the jury accordingly, who found a verdict for the plaintiff; but he gave leave to the defendant to move to enter a nonsuit if this direction were wrong. A motion for this purpose was accordingly made. But the Court were satisfied that *the direction was right, for the reason before given by his Lordship, and discharged the rule. 2. OF THE CONSTRUCTION OF A GUARANTEE, AND ITS EXTENT AND CONTINUANCE : AND OF ITS DURATION WHEN GIVEN TO A PART- NERSHIP FIRM, OR TO ONE WHO AFTERWARDS TAKES A PART- NER. 1. Of the construction of a guarantee,.] — The same rules of con- struction which apply to contracts and promises in general, will equally apply to a guarantee ; and, like other instruments, must be construed according to the plain, natural import of its terms :( 111) though it has been said (A), that as against a surety, a contract cannot be carried beyond the strict letter of it.(112) And, therefore, where a party writes to a trader, respecting the hon- Qi) Per Buller Just., 2 T. R. 370. and see 2 Taunt. 206. 1 New Rep. 41. (Ill) In thecase of Drummond v. Prestman, 12 Wheat. 515, 518. Mr. Justice Johnson declared it to be a rule in expounding letters of credit and guaranty, " that the words of the guarantor are to be taken as strongly against him as the sense will admit." But, with refer- ence to the case then the subject of discussion, he adds, "it is not necessary to test this letter by any canon of the law of guaranty more rigid than the first and most general, to wit. that no party shall be bound beyond the extent of the engagement which shall appear from the expression of the guaranty, and the nature of the transaction." — Words of doubt- ful import, ought not to receive such a construction as to make the party using them, liable for the debt of another person. And it is the duty of the individual who contracts with one man on the credit of another, to require an explicit and plain declaration of the obligation which he is about to assume, and not to trust to ambiguous phrases and strained construc- tions. Russel v. Clark's Exrs\ 7 Cranch. 69, 70. A guaranty of the following tenor, "Baltimore, 17th ISovember, 1803. Capt. Charles Drummond, Dear sir: My Son William, having mentioned to me, that in conse- quence of your esteem and friendship for him, you had caused and placed property of yours and your brother's in his hands for sale ; and that it is probable, from time to time, you may have considerable transactions together; on my part, I think proper to guarantee to you the conduct of my son, and shall hold myself liable ; and do hold myself liable for the faithful discharge of all his engagements to you, both now and in future." "George Prestman.," was held to extend to a partnership debt incurred by William Prestman to Charles Drum- mond and Richard, his brother, it being proved, that the transactions to which the letter related, were had with them as partners. Drummond v. Prestman, ut supra. (112) A surety cannot be bound bevond the scope of his engagement. Thus, where A. of Xew-York, gave 'a letter of credit to B. directed to C. in Albany, requesting him to deliver goods to B. on the best terms, to a certain amount ; C. instead of delivering the goods him- self, gave B. a letter to D. in Geneva, requesting him to deliver goods to B. to the amount specified, and engaging to be responsible for them ; and D. accordingly delivered the goods to B. In an action by C. asainst A. for the amount; it was held, that the engagement of A. to C. did not make him liable for goods furnished by any other person. Waslh v. Bailie, 10 J. R. 180. But where a letter was addressed by the defendants, as follows: "Mr. James M'Pherson, Dear Sir, We will become your security for one hundred and thirty barrels of corn, payable in twelve months. Alexandria, 28th November, 1800. Lawrason ,$• Smoot ;" it was held, that assumpsit would lie against the defendants in behalf of any person who, upon the faith of the letter, shall have given credit to James M'Pherson, for the corn. Lawrason v. Mason, 3 Cranch, 192. See further, Grant v. Xaylor, 4 Cranch, 221. Lanv.sse v. Barker, 3 *207 Chap. 2.] For the Debt or Default of Another, 207 our and probity of a customer, and stating that he has no objection to guaranty the trader against loss from his giving him credit ; such offer does not of itself amount to an absolute guarantee, but as a mere overture, unless the trader an- swers it, and apprises the party that he will accept it as sucb, and supply the customer with the goods accordingly ;(113) more particularly if the trader has a guarantee from another house at the same time. This was determined in the case of ISTIver v. Richardson {i), which was an action of assumpsit upon a promise to guaranty the plaintiffs the payment of the rigging, stores, &c. of a ship furnished to Anderson and Co. of Quebec, to the amount of 2091/. lis. Id. Prior to their making the supply, Anderson and Co. had applied to the plaintiffs, but they declined to act upon Anderson and Co.'s credit alone ; they were, therefore, referred to the defendant, who wrote to them the following pa- per, addressed to the plaintiffs : " Gentlemen, As I understand Messrs. David Anderson and Co. have given you an order for rigging, &c, which will amount to about four thousand pounds, I can assure you from what I know of D. A.'s honour and probity, you will be perfectly safe in crediting him to that amount; indeed, I have no objection to guaranty you against any loss from giv- ing them, this credit. John Richardson, Liverpool, March 12, 1811." This paper was communicated by Anderson to the plaintiffs, who were not satisfied, but required, in addition, the security of another person, and Anderson applied to Pagett and Co., who gave a separate guarantee, which the plaintiffs accept- ed. On the 13th of April 1811, Anderson and Co. wrote from London to the plaintiffs in Liverpool, inclosing the paper signed by the defendant, and also that signed by Pagett and Co., which they stated to be a letter from the de- fendant, and one from Pagett and Co., guarantying the payment of rigging and sails, &c. and requested an order for the delivery of the *goods at Quebec. The plaintiffs having received these two papers, they and the other tradesmen drew bills of exchange for the respective amounts of their demands on Ander- son and Co., dated the 1st of April 1811, payable 12 months after date, which Anderson accepted ; and the necessary orders for the delivery of the goods were thereupon given by the plaintiffs to Anderson and Co., which were ac- cordingly complied with. None of these facts were communicated to the de- fendant, nor had he any knowledge of any part of the transactions after he had signed the above paper till applied to as after mentioned. The credit for goods of this description, when sold in Liverpool, is very various ; for cordage it is often twelve months, and for the other articles three or six months. In (i) 1 Maule & Scl. 557. Wheat. 148, note(a). And where a person gave another a general letter of credit, engaging to be responsible to any one who would sell goods to him, on credit, and if any one sell him goods on the faith of such letter, the guarantor will be liable to the vendor as upon an origi- nal undertaking, collateral to the promise of the vendee, as security; and such undertaking will not be liable to any contingency, except that of gross negligence in collecting the debt of the vendee. Duval v. Trask, 12 Mass. Rep. 154. (113) See Ra^elye v. Bailey, 3 Conn. Rep. 207. Russel v. Clark's Exrs. 7 Cranch, 69, 92. Pei Marshall, Ch.J. ♦208 203 Of a Guarantee or Promise to be Answerable [Part If* January 1812, before the bills became due, Anderson and Co. failed, and the bills were dishonoured, and notice of the dishonor was given to the defendant. The plaintiffs then applied to the defendant to make good to them the amount, which he refused ; and thereupon the present action was brought. The Court were of opinion, that this was not an absolute guarantee, but only an overture or offer to guaranty. And Lord Ellcnborough Ch. J., in delivering the judg- ment of the Court said, " The question is, whether the paper imports to be a perfect and conclusive guarantee, or only to a proposition tending to a guaran- tee. We do not know on what kind of previous application the defendant signed it, nor is there any subsequent circumstance stated from which it can be collected. The paper therefore must be construed according to the plain natural import of its terms. The import is, that the party signing it, under- stood that Anderson and Co. had given an order for goods to about 4000/. ; that this order remained unexecuted ; and then, as if a question had been put to the defendant respecting the honour and probity of Anderson and Co., the defendant says, " I can assure you, from what I know of Anderson, you will be perfectly safe in crediting them to that amount ;" and then he adds, " In- deed I have no objection to guaranty you against any loss from giving them this credit ;" which words import, that if application were made he would guaranty ; but no such subsequent application was made. Indeed it appears that a guarantee was obtained from another house. A considerable period elapsed, and it was not made known to the defendant until the failure of An- derson and Co. that his paper had ever been communicated to the plaintiffs ; considering this as a mere overture to guaranty, it appears to us that the de- fendant ought to have had notice that it was so regarded, and meant to be ac- cepted ; or that there should have been a subsequent consent on his part to convert it into a conclusive guarantee." So, in Symmons v. Want,(k) which was an action upon a guarantee ; *and in support of it, the plaintiff gave in evidence a letter in the hand-writing of the defendant, but without date, in which the letter states, " I have no objec- tion to guaranty the payment of the rent, as far as that of each quarter, during Mr. T. Want's continuance in possession." This is not sufficient, without shewing that the plaintiff accepted the defendant's offer. So, in Phillips v. Bateman,(l) where the defendant, on occasion of there be- ing a great run upon the Milford banking-house of Messrs. C. A. and T. Phil- lips, went to the bank and told the owners of notes issued by the bank, who were waiting for payment, that he had come to a resolution to support the bank with 30,000/., at which the holders then present were satisfied, and said they would take no more money than was necessary, and would keep the rest of their notes till they got again into currency ; and afterwards the defendant sign- ed the following written paper : " I do hereby undertake to be accountable for the payment of the notes issued by the Milford bank, at their said banking- (k) 2 Stark. 371. See also Clinton (I) 16 East Rep. 356. v. Cooke, 1 Scho. & Lef. 22. *209 Chap. 2.] For the Debt or Default of Another. 209 house called the Milford and Pembrokeshire bank, as far as the sum of 30,000/. will extend to pay ; which will be an additional security to the public to that amount to the estate and effects of Charles Allen Phillips and Thomas Phil- lips, esquires, partners in the said bank. (Signed) Nathaniel Phillips.''' The Court held, that though the bank aftei wards stopped payment, yet the defendant was not liable upon this undertaking to an action by the individual holders, who had taken the notes after notice of such undertaking, and before the stop- page. So, a guarantee or promise to be answerable for money or goods to be sup- plied to a third person, will not extend to a present existing debt, and the mere cancelling an old note of hand, and substituting a new one, will not satisfy the gaurantee, which is prospective in its effect. (»;)( 114) But a guarantee for the payment of goods, given on the 7th, will cover goods contracted for on the 6th, but not delivered till the 7th, and then supplied on the credit of the gaurantee. Thus, in the case of Simmons v. Keating, (n) which was an action of assump- sit on the defendant's guarantee, which was contained in a letter written by the defendant to the plaintiffs, in which he engaged, that in consideration they would supply his niece, Mary Growling, with such goods as she from time to time should wish to buy, he would guarantee to them the payment of any sum due to them on her account, not exceeding 50/. Credit to be given for six months, to commence from the next January. It appeared that Mary Croiding had applied to the plaintiffs on the 6th of December to supply her with goods which were selected by her, but which they refused to supply her with, unless she could procure a respectable reference, which should satisfy them as to her responsibility. *After this (on the seventh) she obtained a guarantee in ques- tion ; and then the goods, which had been previously agreed upon, were sent to her. It appeared also, that a bill of parcels had been sent with these goods entitled in this way, To Messrs. Simmons and Co., at three and three months' credit. Abbott Ch. J. was of opinion, "that as the sale of the goods was not complete till the delivery, and the delivery was subsequent to the guarantee, and made upon the faith of it, the value of the goods was recoverable under the guarantee. The credit under the guarantee and bill of parcels were both six months." A recital professing to state the guarantee between the parties does not neces- sarily confine the extent of the responsibility of the surety to the limits there- in specified ; for where a new subject matter of guaranty is afterwards intro- duced into the writing, and the agreement expressly extends to it, the surety is liable to both subjects. But the rule is, that where the limit is definitely (m) Glyn v. Hertel, 2 Mo. 134. 8 Taunt. (n) 2 Stark. 426. 203. S. C. (Ill) See Leonard v. Vredenburgh, 8 J. R. 30. 2d edit. Per Kent, Ch. J. 27 *210 210 Of a Guarantee or Promise to be Jlnswerable [Part II. marked out in the recital, it is not to be extended by any subsequent general words.(o) 2. Of the extent and continuance of a guarantee.] — The extent and continuance of a guarantee must depend entirely on the particular en- gagement entered into, and the circumstances and situation of the parties. (115) Thus, in the case of Mason v. Pritchard,{p) the defendant engaged in writing to guaranty the plaintiff " for any goods he hath or may supply W. P. with, to the amount of 100Z." And at the trial, it was proved, that at the time when the guarantee was given, goods had been supplied to W. P. to the amount of 66Z., and another parcel was supplied afterwards, amounting together to 124/., all of which had been paid for; and the sum in dispute was for a further supply of goods to W. P. And the question was, whether this was a continuing con- tract for guarantying the supply of goods at any times afterwards furnished, as long as the parties continued to deal together, or whether it were continued to the first hundred pounds worth of goods furnished 1 A verdict was found for the plaintiff; but it was afterwards moved to enter a nonsuit, on the ground that it was a limited and not a continuing guarantee. But the Court of King's Bench were of opinion, " that this was a continuing or standing guarantee to the extent of 1001. which might at any time become due for the goods supplied until the credit was recalled. The words, they said, were to be taken as strongly against the party giving the guarantee as the sense of them would admit of; and the meaning was that the defendant would be answerable, at all events, for goods supplied to his brother to the extent of 100?. at any time ; but that he would not be answerable for more than that *sum." So, in the case of Merle v. Wells, (q) which was an action of assump- sit upon a guarantee contained in a letter, in which the defendant stated, " that he had been applied to by his brother William Wells, to be bound to the plaintiffs for such debts as he might contract with them not exceeding 100Z. for goods, and then added these words — ' I consider myself bound to you for any debt he may contract for his business as a jeweller, not exceeding 100/. after (o) Per Lord Ellenborovgh.2 Campb. 41. 414. and note 5. See also Pearsall v. Summersett, 4 Taunt. (p) 12 East Rep. 227. 2 Campb. 436. 693. Lord Arlington v. Merricke, 2 Saund. {q) 2 Campb. 413. (115) Where the defendant, in the country, addressed a letter to the plaintiffs in the city of New-York, stating that his brother R. wished to go into business in that city, as a retailer of goods, in a small way, and promising to hold himself accountable for such goods, furnish- ed by the plaintiffs, as R. should call for, from 300 to 500 dollars worth ; the plaintiffs fur- nished R. with divers parcels of goods, from the 1 1th of September, 1317, to 28th October, 1818 ; this was held to be a continuing guaranty to the amount specified, and was not limited to the bill of parcels first delivered. Rapelye fy Purdy v. Bailey, 5 Conn. Rep. 149. But where A. & B. addressed a letter of credit to C., stating, "If D. wishes to take goods of you, on credit, we are willing to lend our names, as security, for any amount he may wish." D. took goods of C, on credit, several times, for which he paid ; and afterwards, took another parcel, on credit, for which he gave his note to C, and which was not paid. In an action brought by C. against A. & B. for the balance due on the note, it was held, that the letter of credit did not extend beyond the first parcel of goods delivered to D. ; and that the defen- dants were not liable for an indefinite time, but only for an indefinite amount, for one time. Rogers v. Warner, 8 J. R. 92. 2d edit. # 211 Chap. 2.] For the Debt or Default of Another. 211 this date.' ' The plaintiffs continued to supply the brother with goods in his business above twelve months afterwards to a considerable amount, during which time they several times balanced accounts with him, and he paid them above the sum of 100/. The question was, whether the defendant's guarantee was limited to the first 100/., for which the plaintiffs gave credit to W. Wells, or extended to any sum of that amount which he should thereafter owe them for goods supplied to him in the business of a jeweller. Lord Ellenborough Ch. J. said, " I think the defendant was answerable for any debt not exceeding 100/., which W. Wells might from time to time contract with the plaintiffs in the way of his business. The guarantee is not confined to one instance, but applies to debts successively renewed. If a party means to be surety only for a single dealing, he should take care to say so. By such an instrument as this, a continuing suretyship is created to the special amount." A party under such a liability has no relief in equity ; for in the case of Shepherd v. Beechar,(r) the plaintiff placed his son an apprentice for seven years with the defendant, and was bound in a bond of 1000/. penalty for his fidelity. In about ^three years after, the apprentice embezzled cash to the amount of 203/., which the plaintiff paid, and wrote to the defendant, desiring that he would not in future trust the apprentice with any cash. The defen- dant, however, did trust him, and at the expiration of the apprenticeship, he was found to have embezzled 2,750/., and an action was commenced upon the bond against the father, who brought this bill in equity to be relieved against it, partly upon the ground of the neglect in the master in trusting the apprentice af- ter the warning given by the plaintiff. But the Lord Chamcellor said, " The father continued bound, and ought not to have satisfied himself with sending the letter and taking no care of the matter, but should have endeavoured to have made some end of the matter and got up the bond. Wherefore he must continue liable to answer some embezzlements, unless there should appear fraud in the master." But in the case of Kirh y v. the Duke of Marlborough and others, (s) it was decided that a bond conditioned for the payment of all such *sum or sums not exceeding 3000/., with lawful interest as should or might at any time or times be advanced and lent by the plaintiffs to C. or paid to his use by his order or direction, was only a guarantee for advances once made to the amount of 3000/., and not a continuing guarantee for advances to be made at any time. So, in the case of Melville v. Hayden,(t) where the plaintiff declared upon the following guarantee: "Memorandum, 23d September 1818,1 engage to guaranty the payment of Mr. Amos Moulden to the extent of 60/. at quarterly account, bill two months, for goods to be purchased by him of William and David Melville.'" At the trial, it appeared that there had been a delivery of goods for three quarterly accounts, all of which had been satisfied by Moulden ; the default was made by him in the fourth quarterly payment, for which the ('•) J P- W - f88. (0 3 Bam. & Aid. 593. («) 2 Maule & Scl. 18. *2I2 212 Of a Guarantee or Promise to be Answerable [Part II. action was brought. It also appeared, that in the first quarter goods to the amount of 591. 4s. had been furnished, and in the second and third quarters to a greater extent. The learned Chief Justice Abbott thought at the trial, that the guarantee was at an end before the goods were furnished for which the ac- tion was brought, and directed a nonsuit, giving to the plaintiff leave to move to enter a verdict for 60/., in case the Court should be of a different opin- ion. And a motion was accordingly made : But, after argument, the Court determined, that the memorandum was not a continuing guarantee ; and Baylcy Just, said, " The words ' quarterly account' do not seem to me to vary the case ; they only mean that at whatever time the goods might have been deliv- ered, the account for them should be rendered quarterly. A party who takes a guarantee of this sort should carefully provide that these words in it are expres- sive of its being a guarantee for goods to be furnished by him from time to time. The words of the guarantee in the case of Mason v. Pritchard,(u) were very different ; they were, ' for any goods he hath or may supply.' So, that there the guarantee was applicable to any goods furnished at any time to the amount of 100/., whatever intervening payments might have taken place. They were therefore equivalent to the words ' any goods furnished from time to time.' In this case, however, I think there was no continuing guar- antee." 3. Of the duration of a guarantee given to a partnership firm, OR BY A PARTY WHO AFTERWARDS TAKES A PARTNER.] If A. become bound to B. under condition that C. shall truly account to B. for all sumsjjf money received by C. for B.'s use, and C. afterwards with B.'s knowledge takes D. as his partner, the guarantee does not extend to sums of money received by C. for B.'s use, after the formation of the partnership, (x) So, a bond conditioned to repay to five *persons all sums advanced by them or any of them, in their capacity of bankers, will not extend to sums advanced after the decease of one of the five by the four survivors, the four then acting as bankers, (y) So, a bond given to three partners, and afterwards one of them dies, and the survivors then take a new partner into the firm, the surety is discharged from all liabil- ities for money or goods supplied to the debtor after the death of the part- ner, (z) 3- OF PROMISES TO BE ANSWERABLE FOR THE DEBT OR DEFAULT OF ANOTHER, IN CONSIDERATION OF FORBEARANCE TO SUE, &c. OR OF DISCHARGING THE DEBTOR, OR OF GIVING UP SECURITIES, &c. An action will lie upon a promise in writing to pay a sum of money in con- sideration of giving time, or forbearing to sue a third person for a precedent (k) Ante 210. Lucas, 1 T. R. 291. n. (.t) Bellairs v. Ebsworth, 3 Campb. 53. See {y) Weston v. Barton, 4 Taunt. 673. also Exparte Marsh, 2 Rose Rep. 239. (z) Strange v. Lee, 3 Term Rep. 484. Wright v. Russell, 3 Wils. 530. Barclay v. *213 Chap. 2.] For the Debt or Default of Another. 213 debt or other cause of action, (a) (116) Thus, if A. is indebted to B. in 10/. and upon this C. promises that in consideration that he will forbear A. till such a day, and if A. does not pay -him on that day, he himself will pay B. the 10/. on the same day, this is a valid promise, upon which B. may have an action against C. ; for though A. had the whole day to pay it, and so it was impossible for C. to pay it the same day, if he did not pay it, yet the substance of the prom- ise is to pay, and the time limited being impossible, is void, and then it ought to be paid on request, (/>) So, where the defendant was indebted to the plaintiff l n 10/. for so much money lent, and in consideration that the plaintiff would not sue him for the 10/., he promised to deliver to the plaintiff ten quarters of barley upon request. The plaintiff showed that he did not sue, &c. and that on such a day he required the barley, but that the defendant refused to deliver it. In an action upon this assumpsit, it was adjudged for the plaintiff (c) So, if A. be indebted to B. in 100/. and B. is about to commence a suit for the recovery thereof, but C. a stranger comes to him and says, that if he will forbear him, he himself will pay it : this is a good consideration for the promise, B. averring that he had abstained and forbore to sue A. et adhuc did abstain and forbear, though no certain time was appointed for the forbearance ; for it seems a per- petual forbearance is intended, the which he hath per formed, (d) So, if A. be indebted to B., and C. a stranger says to him, that if he will forbear him per paululum temporis that he himself will pay him ; this is a good consideration for an assumpsit, averring a certain time of forbearance. (e) *So, if A. is indebted to B. and B. causes him to be arrested, and while he is under the arrest, a stranger comes to B. and says, that if he will forbear A. per paululum temporis he will pay him, upon which B. suffers A. to go at large ; this is a good consideration for the promise, though he arrests A. within an hour after ; for the deliverance from the present danger is a good consideration, (f) So, in the case of Cowlin v. Cook,(g) the plaintiff declared that the defendant was bound to him in 100/. which he intended to sue him for, and the defendant in consideration that the plaintiff would defer the payment and not sue him upon that bond, promised that he would pay him. It was objected that the consider- ation was not good, for he might forbear and defer for a day only, &c.~ But the Court held it good ; for the deferring shall be intended during all the life of the obligee ; and that if he sues him sooner upon that bond, an action on the case lies ; and so it was ruled in one Barke?iham , s case. But if it had been (a) Com. Die. tit. Action on assumpsit. B. 1. (r) 1 Rol. Abr. 27. pi. 46. 1 Danv. 55. pi. (ft) 1 Rol. Abr. 15. pi. 6. 1 Bac. Abr. tit. 46. But see 1 Danv. 51. pi. 25, 26. and Com. Assumpsit. B. Dip. tit. Action on Assumpsit. B. 1. contra. (c) 1 Vin. Abr. 322. pi. 1. ( /) ] R 1. Abr. 27. pi. 47. 1 Danv. 55. pi. () Cro. Eliz. 768. 1 Rol. Abr. 30. Y. ($) 2 Saund. 136. *217 Chap. 2.] For the Debt or Default of Another. 217 request ; and the plaititifY averred forbearance, and yet the defendant had not paid the said money, although on such a day and year he was requested, &c. On non assumpsit pleaded, a verdict was found for the plaintiff. But it was af- terwards moved in arrest of judgment, that there was no consideration ; for it does not appear that the defendant was suable upon this bond as son and heir, for it is not shown that Anthony Fox, the defendant's ancestor, whose son and heir he is, had bound himself and his heirs by the said bond ; and if the heir is not bound expressly by name, he is not bound at all ; and therefore here was no consideration to found this promise; wherefore judgment, was staid until it should be moved on the other side. Afterwards Saunders, for the plaintiff, moved for judgment, and said, " That though the declaration would have been bad on demurrer, yet is now made good by the verdict; for the jury have found that the defendant was bound as heir in the said bond, for otherwise there was *no consideration; and they ought to have found that the defendant did not un- dertake, &c. if there was no consideration, or otherwise they might be attained for a false verdict ; but they having found, that the defendant did undertake and promise as the plaintiff has declared, it ought of necessity now to be in- tended that Anthony Fox had bound himself and his heirs by the same bond." But the court said, " Though they would intend a personal lien against an executor, if he has assets in his hands, though it be not averred, yet they will not intend a real lien against an heir ; though he be bou nd by the bond of his ancestor, unless it is expressly alleged ; and therefore they would not intend it here, though it be after verdict; wherefore judgment was ai rested." The learned editor of Saunders's Keports, in a note upon this case, shows a clear distinction between the liability of an heir and an executor, upon a promise to pay the debt of the ancestor or testator ; and he there brings together the different cases on this subject. Upon the same principle that a promise, in consideration of forbearance to sue where there is no cause of action, is void, it has been determined, that where a married woman gave a promissory note as a feme sole, but after her husband's death promised to pay it in consideration of forbearance to sue, no action lies on such a promise ; because the note being void, no cause of. action existed against her at the time of making the promise, (r) So, if an infant enters into an obligation for a certain sum of money, and afterwards the obli- gee brings debt upon the obligation, and procures a latitat to arrest him, and the obligor being of full age, and having notice thereof, comes to the obligee, and says to him, that if he would not arrest him he would pay him the money, this is not any consideration to maintain an action, inasmuch as the infant mi^ht have avoided the obligation by plea, (s) Again, if an infant takes up certain commodities of a mercer in London, at a certain price, who afterwards, for non-payment of the money, threatens to sue him, and the mother of the infant promises to pay him if he will not sue her son, this is not any consideration to (r) 1 Stra. 94. 2. Cro. Elii. 700. But see Dy. 272. b. roarff. (s) 1 Rol. Abr. 18. 1. 50. 1. Danv. 46. pi. Cro. Eliz. 127 1 Leon. 1)0. contra. 28 «218 218 Of a Guarantee or Promise to be Answerable [Part II- maintain the action, inasmuch a3 the infant was not by law chargeable for the money, (t) So, if A. be indebted to B. by bill, and B. is indebted to C, and B. in recompence of his debt due to C. assigns the bill of A. to him, and, be- fore the day of payment of the money, A. comes to C. and promises him that if he will forbear him the payment of the money for a week, that then he will pay him ; upon which C. forbears him ; yet this is not any consideration to maintain an action upon this promise ; because, notwithstanding the assign- ment of the bill, yet the property of the debt remained always in the *assign- or. (w) But if A. is indebted to B. in 20/., and thereupon B. makes a letter of attorney to C. to put him in suit, and to recover the debt to his own use, and to release it at his pleasure, and after A., in consideration that C. will for- bear to sue him for a certain time, promises C. to pay the debt, this is a good consideration ; for the forbearance of the suit whereof he had power is a meri- torious consideration, (v) So, an action of assumpsit will lie upon a promise to pay money in conside- ration of discharging a debt, or giving up securities. Thus, if A. be indebted to B. in 200/. and A. appoints B. to receive it from C, and for the better satis- faction of B., A. delivers certain bills of exchange to one D., the factor of B., for payment thereof; and upon this C. promises B. that in consideration that he would deliver to him the said bills of exchange, so delivered to D., the factor of B., that he would pay the said 200/. due by A. to B. this is a good promise, for the consideration is valuable ; for though C. can do nothing with the bills, being a stranger to them, yet it may be some advantage to him to have the possession of them, at least it may be some prejudice to B,, and therefore the consideration is good.(w) So, if L. be indebted to M., and L. delivers to M. certain goods to the value of 100/. as a pawn till he pays him the debt, and after J. S. comes to M. and promises to pay him the debt, in consideration that he will deliver to him the said pawn, upon which he delivers it to him accordingly ; this is a good consideration to have an action upon the case against J. S.(,r) And in the case of Meredith v. Chute, (y) which was an action of assumpsit, wherein the plaintiff declared that the defendant, in consid- eration that the plaintiff, at the special request of the defendant, deliberasset to the defendant quandam notam, by which one Hurst assumed to pay to the plain- tiff a hundred guineas, assumed to pay to the plaintiff, &c. Upon non assump- sit pleaded, and a verdict for the plaintiff; it was moved in arrest of judgment, that the consideration of this promise was not good, since it did not appear that Hurst gave this note to the plaintiff upon any good consideration, and conse- quently the said note would be void, and then the delivery of the said note by the plaintiff to the defendant would be no prejudice to the plaintiff, nor advan- (0 Danv. Abr. 46. pL 1. pL 11. 1 Saund. 210. n. (a) 1 Vin. Abr. 304. pi. W. See also 1 (w) 1 Daav.50. pi. 21. Saund. 210. n. 1. 1 RoL Abr. 20. L SO. 1 (r) 1 Danv. 47. pi. 8. Ventr. 154. Hard. 74. Moor. 701. Oro. Elia. (y) 2 Lord Rayin. 75a Salk. W. 7 Mod. 6^3, 1 Rol. Abr. 26. 1. 30. \% S. C (r) 1 Rol. Abr. 20. pi. 11. 1 Vin. Abr. 304. ■218 Chap. 2.] For the Debt or Default oj Another. 219 tageto the defendant. But it was resolved, (per totam curiam,) that this was a good consideration ; for though no consideration was expressed in Hurst's note, yet the note being subscribed by Hurst was good evidence of debt due from Hurst to the plaintiff; and therefore the delivery of the evidence of his debt to the defendant at his request was a good consideration of the assump- sit of the defendant, upon which this action was brought. And * judgment was given for the plaintiff. Note, Holt, Ch. J. said : " That he was of opinion upon the trial, that it was not necessary for the plaintiff to prove upon what consideration the note of Hurst was given, the defendant having admitted it to have been given upon good consideration by his promise." So, where a broker having a lien on certain policies of insurance effected for his principal, for whom he had given his acceptances, the defendant pro- mised that he would provide for the payment of those acceptances as they be- came due, upon the plaintiffs giving up to him such policies, in order that he might collect for the principal the money due thereon from the underwriters : which was accordingly done, and the money was afterwards received by the defen- dant : it was held that this was not a promise for the debt or default of another within the statute of frauds ; and that the plaintiff was entitled to recover upon the special promise or for money had and received. (z) 4. OF PROMISES TO PAY A PRECEDENT DEBT ON THE CREDITOR'S PROVING IT DUE UPON OATH, OR OF THE DEBTOR'S FAILING TO PROVE PAYMENT. It happens sometimes that when a debt is disputed, that the debtor, or a third person for him, agrees to pay it in consideration of the claimant's proving it to be due by the oath either of himself or witnesses before a magistrate, &c. Thus, in the case of Amie v. Andrews, (a) which was an action of assumpsit, wherein the plaintiff declared, that whereas the father of the defendant was in- debted to him in 20/. for malt sold, and promised to pay it ; that the defendant in consideration that the plaintiff would bring two witnesses before a justice of peace, who upon their oaths should depose, that the defendant's father was in- debted to the plaintiff, and promised payment, assumed and promised to pay the money ; then avers, that he did bring two witnesses, &c, who did swear, &c, the defendant pleaded non assumpsit ; which being found against him, he moved in arrest of judgment, that the consideration was not lawful ; because a justice of peace not having power to administer an oath in this case, it is an extrajudicial oath, and consequently unlawful. And Vaughan was of opinion, that every oath not legally administered and taken, is within the statute against profane swearing ; and he said it would be of dangerous consequence to coun- tenance these extrajudicial oaths, for that it would tend to the overthrowing of legal proofs. Wyndham and Atkins thought it was not a profane oath, nor (*) Castling v.. iubert, ante 198. 325. Hard. («) 1 Mod. 166. Cro. Eliz. 469 470 1 7d " Danv. 45. pi. 24. S. P. '220 22 1 Of a Guarantee or Promise to be Answerable [Part II. within the statute of King James, because it tended *to the determining of a controversy. And accordingly the plaintiff had judgment. Lord Chief Baron Gilbert in his Treatise on the Law of Evidence (b), in cit- ing this case, says, " That the oath, though extrajudicial, and though thejustices had no authority in the matter, was held good consideration, for the oath tend- ing to a decision of the right, was not held to be contrary to the law of God, and therefore the parties might assume upon that consideration, but it is not such an oath as the law takes notice of to punish as perjury." And in the case of Brett v. Pretyman,{c) which was an action of assumpsit, wherein the plaintiff declared, that the defendant owed him 15/., and the defendant pro- mised the plaintiff that if he would procure W. to take his oath in writing that such a sum was due, he would pay it ; and the plaintiff avers that he did procure the said W. to take oath in writing before a master in Chancery, yet the defendant refused to pay. After several arguments, the Court adjudged this to be a good consideration, and gave judgment for the plaintiff; and the Court said, " Though the Master had no power, as judge, to administer the oath, yet it was an oath in conscience and within the meaning of the parties, and made solely for the deciding of a right." So. where one affirmed that he had paid a debt which was demanded of him, and promised that if he could not prove it in a short time, he would pay the debt, this is a good consideration, and the words " short time" is to be in- tended a reasonable time to make his proof, (d) 5. OF PROMISES TO PAY MONEY, OR TO BE ANSWERABLE FOR THE DEBT, &c. OF ANOTHER, ON DELIVERING UP GOODS TAKEN IN EXECUTION, OR UNDER A DISTRESS FOR RENT, &c. An action will lie on a promise to pay a precedent debt, in consideration that a sheriff's officer would restore goods taken in execution under a fieri fa- cias upon a judgment for the same debt. (117) Thus, in Love's case,(c) the sheriff takes goods in execution upon z fieri facias ; a stranger promises to the officer to pay him the debt, in consideration he would restore them. Upon demur- rer this was argued, and compared to a consideration of suffering a prisoner to es- cape^*) Sed non allocatur, " for by the capias he is to take and keep in salva custodia ; and to give liberty is contrary to the writ, but that is now to raise the money, and the sheriff upon a fieri facias may sell the goods, and this is no more in effect." *So, in the case of Byne v. Playne,{f) where the plaintiff declared that lb) 4th ed. p. 67. {«) 1 Salk. 23. Vide Pullen v. Slokes, i (c) 1 Sid.' 2*83. 2 Keb. 26. 44. Raym. H. Black. 312. 153. S. C. Perkins v. Binke, 2 Sid. 123. S. P. (*) Vide post. 223. (rf) 1 Danv. 52. pi. 30. 1 Vin. Abr. 309. (/) 1 Via. Abr. 328. pi. 1. Cro. Lhz.213. pi. 30. S. C. (117) See Boyce v. Oimiw, 2 M'Cord, 208. Madden v. MCray, 1 M'Cord, 486. Jdkinson y. Barfield, Id. 575. 221 *222 Chap. 2.] For the Debt or Default of Another. 222 he had recovered against W. 20/. in the court of S., and had a levari facias to the bailiff there, to make execution of the goods of W. ; and whereas he was ready so to do, the defendant promised the plaintiff, that in consideration he would deliver the defendant the said goods, he, within fourteen days after Michaelmas, would pay the plaintiff the 20/. or otherwise re-deliver to the plaintiff the said goods, if, in the mean time, no other makes title to them, and proves them to be his own goods (and averred that none made title to them within that time.) A special verdict found the recovery and assumpsit ; but further, that before the recovery, W. was possessed of those goods, as his own proper goods, and by indenture sold them to R., his brother, for money, with a promise that W. notwithstanding should have the possession for four years, not yet expired, he to pay to R. 20a\ a year ; and that if the said W., at the end of the four years, should repay the said money, the sale should be void ; and that the said R. made title to the said goods by virtue of that sale, this is a good promise, though W. had only a special property in these goods, and though they were not liable to the execution ; for the plaintiff having the pos- session of the goods, his delivery of them to the defendant is a good consider- ation ; and judgment was given for the plaintiff. So, where a landlord is about to distrain the goods of his tenant for arrears of rent, and a third person promises, in consideration that the landlord would desist from distraining, he would pay the arrears, this is a good consideration, and the promise need not be in writing.(118) Thus, in the case of Williams v. Leper, (g) one Taylor, a tenant to the plaintiff, being three-quarters of a year in arrear for rent, (which amounted to 45/.) and being insolvent, convey- ed to his creditors all his effects, for the benefit of his creditors. They em- ployed Leper, the defendant, as a broker, to sell the effects ; and accordingly he advertised a sale. On the morning of the sale, Williams, the landlord, came to distrain the goods in the house. Leper, having notice of trie plain- tiff's intention to distrain them, promised to pay the said arrear of rent, if he would desist from distraining ; and he did thereupon desist. The ques- tion was, whether the action could be maintained, the promise not being in writing. The Court resolved, that the action was maintainable, the case not being within the statute of frauds and perjuries ; and Lord Mansfield Ch. J. said, 11 The landlord had a legal pledge. He enters to distrain : he has the pledge in his custody. The defendant agrees, 'that the goods shall be sold, and the (g) 3 Bur. 18S6. et vide ante, 197. (118) Where a landlord distrained the goods of his tenant, for rent in arrear, and a third person executed an agreement on the hack of the inventory of the poods, by which he "promised to deliver all the goods contained in the inventory, to the landlord, in six days after demand, or pay him 450 dollars" being the amount of "rent in arrear ; held, that this was an original and not a collateral undertaking ; and of course, the consideration for the promise need not be expressed in the writing, hlingerland v. Murse, 7 J. R. 463. See notes (a) and (&). Id. 464. 222 Of Agreements made with Sheriffs* Officers,fyc>[ Part II. plaintiff paid in the first place.' The goods are the fund : the question is not between Taylor and the plaintiff. *The plaintiff had a lien upon the goods-; Leper was a trustee for all the creditors, and was obliged to pay the landlord, who had the prior lien. This has nothing to do with the statute of frauds : it is rather a fraud in the defendant to detain the 45/. from the plaintiff, who had an original lien on the goods." 6. OF AGREEMENTS MADE WITH SHERIFFS' OFFICERS UPON THE AR- REST OF A THIRD PERSON, EITHER TO PUT IN BAIL, OR TO PAY THE DEBT, &c. IN CONSIDERATION OF LETTING THE DEFENDANT OUT OF CUSTODY, &c. A promise to a gaoler to pay the plaintiff's debt, in consideration that he, the gaoler, would suffer a defendant, who was in execution, to go at large, is void. Thus, in the case of Marty n v. Blithman(h), the case was as follows : Dr. Hohnan was in execution in Plymouth for 31/. at the suit of D., which was re- covered there, before the mayor, &c. Blithman came to the gaoler, Martyn, and promised, in consideration he would set and suffer Holman to go at large, that the 31/. should be brought into court thereby Holman, by such a day, to satisfy D., and that he would save Martyn, the gaoler, harmless from this enlargement. D. recovered against Martyn on the escape, and afterwards Martyn brought an action of assumpsit against Blithman on his promise, and it was adjudged against the plaintiff; for the consideration is against law, viz. to suffer one in execution to escape. So, an agreement in writing to put in good bail for a person arrested on mesne process at the return of the writ, or surrender the body, or pay debt and costs, made by a third person with the bailiff of the sheriff, in consideration of his discharging the party arrested, is void by the statute 23 Hen. 6. c. 9. Thus, in the case of Rogers v. Reeves (i), which was an action of assumpsit, the facts were as follow : Richard Stephens was arrested by the plaintiff" by virtue of a latitat, and a warrant thereon granted against him, at the suit of /. Torriano, and was discharged by the plaintiff on the following undertaking of t'le defendant : " In the King's Bench. /. Torriano, gent, against Richard Stephens. Re- turnable on Thursday next, after eight days of Saint Hilary. Damages 40/. ; bail for 35/. 7s. Theakstone, by Evans, attorney. I do hereby undertake to put in good bail, on or before the return, or surrender the body to Mr. S. Rog- ers, one of the officers to the sheriff of Surrey, or on default pay debt and costs. Dated 24th of December 1782. ) 3. Of the Discharge of a Guarantee by Bankruptcy.] A surety, un- der a guarantee on a bill of exchange, who is discharged by bankruptcy from his liability on the bill, is also discharged from the costs of an action against the principal, (q) 4. Of the Discharge of a Guarantee by a fraudulent Conceal- ment of Facts.] If a creditor fraudulently keeps back any material cir- cumstances from the surety, it may, perhaps, be a ground for discharging the guarantee. But if A. become bound to B. for the honesty of C., who embez- zles money, B. may maintain an action on the guarantee, though three years have elapsed without any notice having been given of the embezzlement by B. to A., at least if A. was acquainted with the circumstance from any other quar- ter, and B. does not appear to have concealed, it from him, fraudulently or in- dustriously, A. will not be discharged from his guarantee, though B. appear to have given credit to C. for the amount of the sum embezzled, (r) 5. Of Laches in not giving Notice, &c. to the Surety of the De- fault MADE BY THE PRINCIPAL : AND OF THE Surety's GIVING UP A COUN- TER Security, he not having heard from the holder of the Guarantee, though written to on the subject.] The laches of obligees in a bond (con- ditioned for the principal obligor to account for *and pay over from time to time all such tolls as he should collect for the obligees) in not properly examining his accounts for eight or nine years, and not calling upon the principal for pay- ment so soon as they might have done for sums in arrear or unaccounted for, is not an estoppel at laio in an action against the sureties. (s) But where a party taking a security for the fidelity of another, covenants with the surety to act in a certain way for his protection, and omits so to do, such omission shall discharge the surety in equity ; and although there be no covenant, yet it is the duty and implied undertaking of every man to use due care and diligence in the investigation of the accounts of his clerks and servants. Thus, in the case of Montagu v. Tidcombe,(t) the plaintiff's testator had put his son apprentice (p) See Phillips v. Jlsttingj 2 Taunt. 211. (s) Trent Navigation Company v. Harhy, (q) Botomleii v. Wilson, 3 Stark. 148. 10 East Rep. 34. (r) Peel v. Tallock, 1 Bo9. <$- Pul. 413. (/) 2 Vern. 513. 29 *227 227 What Acts or Circumstances [Part II. to the defendants, and given bond for his fidelity, and at the same time had tak- en a covenant from the defendants, that ihey should see the apprentice make up his cash monthly. The defendants did not do this, and money having been embezzled by the apprentice, ihey brought an action upon the bond. But upon an application to the Court of Chancery, the defendants were enjoined from re- covering more than the defendants could prove the apprentice had embezzled in the first month after the embezzlement began. If, however, a surety is induced to give up a counter security, in conse- quence of not having received an answer from the creditor to an application made by him to know whether he had executed the order or not, it is no bar to an action upon his own guarantee. Thus, in the case of Oxley v. Young, (u) where A. having sent an order to B. for certain goods, C. undertakes to guar- antee payment to B. upon an undertaking of D. to indemnify C. B. accord- ingly informs C that the goods are preparing, and afterwards ships them for A. without giving notice to C. that they are shipped. Afterwards D. desires to recal his indemnity, upon which C. writes to B. to know whether he had executed the order, to which no answer is given by B. for a considerable time, he having gone abroad in the interim ; upon this C. supposing, from the silence of B., that the order was not executed, gives up his indemnity to D. : C. how- ever still remains liable to B. on his guarantee. 8. OF THE APPLICATION OF PAYMENTS MADE BY A DEBTOR TO HIS CREDITOR, WHILST A GUARANTEE IS IN FORCE. Where a party has guaranteed the payment of a particular supply of goods to a third person, and after the debt has accrued, other transactions and deal- ings continue between the creditor and the debtor ; and in the course of such dealings, the latter makes payments on account generally, the creditor will be at liberty to apply such payments in discharge *of the debt subsequently con- tracted, and is not obliged to apply them in discharge of the guarantee ; for the general rule of law, to be collected from the cases on this subject, is, that where a debtor pays money without specifying, at the time of payment, on what ac- count it is paid, it is in the power of the creditor to apply it to whatever account he pleases ; but where it is applied to a particular account by the creditor, which is communicated to the debtor, he cannot afterwards alter the applica- tion, so as to accommodate it to particular circumstances, (w) But in a late case it was said,(.r) " that if the receiver does not, at the time of payment, make a specific application of it to a particular account, he would have a right to make the application at a subsequent period : and though an entry of such payment may be made to a particular account in the private book of the receiv- er, not communicated to the debtor, such election is not complete ; for the ef- (u) 2 H. Bl. 613. 2 Stra. 1 194. 2 Barn. & Cres. 45. Per Bey- (w) 1 Taunt. 564. 5 Taunt. 596. 6 Taunt, ley Just. 5©7. 14 East Rep. 243. a. a. 6 Esp. Rep. 26. (x) Per Holroyd, Juet. m Simpson v. tng- ham. 2 Barn. & Cres. 74. *238 Chap. 2.] Will discharge a Guarantee. 228 feet of making such an entry shows only that the idea of so applying the pay- ment had passed in his own mind, and is much the same thing as if he had ex- pressed to a stranger his intention of making such application of the payment, and had afterwards refused to carry such intention into effeet. But the delive- ry of an account to the party making the payment, and giving credit in that account for the money received, is a conclusive election, and such as will bind the receiver. So, if at the time of giving the guarantee, the principal was indebted to the creditor upon a prior account, the latter may apply subsequent payments to the liquidation of the pre-existing debt, although the surety had no intimation of such pre-existing debt, (y) But, if from circumstances attending such payments, it appears that some of them must have been made to meet the subsequent ad- vances of money, or supply of goods, such circumstances, in the absence of other proof, are sufficient to raise a reasonable inference, that they were all so intended ; and particularly in favour of a surety. Thus, in the case of Marryatts v. White,{z) where the defendant had given a promissory note to the plaintiff as a security for the amount of flour to be delivered to one Moulds, who at that time was considerably indebted to the plaintiff on account of prior dealings, which was, however, known to the defendant. Sub- sequent deliveries of flour were made at three months' credit, which was the usual time of credit, amounting in the whole to 239/. 16s. 2d., and subse- quent payments were made by Moulds amounting to 209/. 18s. It was proved, that a discount had been allowed for immediate payments, and that Moulds had in other instances *made payments before the expiration of the credit, up- on which discount was also allowed. And the question was, whether these payments were to go in liquidation of the old or new account. Upon which Lord Ellcnborough, Ch. J. said, " I think that in favour of a surety, such pay- ments are to be considered as paid on the latter account. In some instances the payments were immediate, and in others before the time had expired, with- in which a discount was allowed, ex plurimis disce omnes ; where there is no- thing to shew the animus solventis, the payment may certainly be applied by the party who receives the money. The payment of the exact amount of goods previously supplied is irrefragable evidence to show that the sum was intended in payment of those goods ; and the payment of the sums within the time allowed for discount, and on which discount has been allowed, affords a strong inference, in the absence of proof to the contrary, that it was made in relief of the surety/' 9. OF NOTICE TO A SURETY OF DEFAULT MA'DE BY THE PRINCIPAL. Upon default made by the principal, the surety should, in all cases, have (y) Kirbyv. Th» Duke of Marlborough, 1 (z) 2 .Stark. 101. Maule & Sel. 18. *3*0 / 229 What Jlcls or Circumstances [Part II. immediate notice thereof; but particularly where a guarantee is given for the price of goods which are to be paid for by the principal by a bill of exchange, which is afterwards dishonoured ; in which case, notice of its dishonour must be given both to the drawer and guarantee. This was determined in the case of Phillips v. Astling, (a) which was an action against two upon a guarantee, the terms of which were : Memorandum.—" We jointly and separately pro- mise to guaranty a payment of 500/. at 5/. per cent., say a bill, dated 10th January 1808." The bill was given, dated llth January, and accepted; and not having been paid, this action was brought. At the trial, there appear- ed reason to believe that Davenport and Finney, the drawers, and Houghton, the acceptor, were all at this time insolvent, but there was no proof of it. Daven- port and Finney first became plainly insolvent in February 1809, a year after this bill was drawn. There was no evidence of any demand having been made on Davenport and Finney for the money ; and no notice -was given them of the dishonour of the bill till the 16th. Something was said of a threat to arrest them, but there was no evidence of a regular notice. As to Houghton, he went abroad ; but he left a sister here, of whom a demand might have been made ; no demand, however, was made at the place where his sister was to be found. The court determined, that notice of the dishonour of the bill should have been given to the drawer and to the defendant. And Mansfield Ch. J. said, " At *the trial it was objected that the plaintiff could not recover for seve- ral different reasons ; first, that the defendants stood as indorsers of the bill, and that as indorsers they had a right to insist on proof of the notice of non- payment, both by the drawer and acceptor. On the other hand it was urged, and, as we think, justly, that this was a general guarantee for payment of a bill ; not, as usual, a guarantee that the acceptor should pay, but a contract that ei- ther the one or the other should pay ; and the consequence is, that if the guar- antee paid the bill, he would have a right to come both on the drawer and accep- tor for re-payment ; and though want of notice would not discharge the accep- tor, yet the guarantee, as the holder, had a right to insist on due notice being given to himself of non-payment by the acceptor ; and that as to the drawers he had right to insist on notice being given to them of the same fact, for that otherwise he might pay it in his own wrong if they were discharged." But in the case of Holbrow v. Wilkins (b) where the plaintiffs sold goods to C. and P., and took their acceptance for the amount, half of which was guaranteed by the defendant. Before the bill became due C. and P. became insolvent, of which the defendant was then informed, and also that the plain- tiffs looked to him for the sum which he had guaranteed : the Court of King's Bench determined, that, under these circumstances, it was unnecessary for the plaintiffs to present the bill when due, or give the defendant notice of the non- payment of it. Abbott Ch. J. said, " This case differs very materially from that of Phillips v. Astling : the insolvency there did not happen until after the (a) 2 Taunt. 206. (&) 1 Bam. &Cres. 10. *230 Chap. 2.] Will discharge a Guarantee. 230 bill became due : but in the present case, the defendant had notice long prior to the bill becoming due that C. and P. were insolvent, and that the plaintiffs would look to him for payment."(119) (119) A., in consideration of the delay of an execution against B., by the creditors for a certain time, promised, in writing, that B. should make his appearance at a certain place at the time specified, either to pay the execution, or to surrender himself to any officer who might hold the same at the time ; and on failure of B. to appear, as above stated, to pav the amount of the execution, with interest. B. failed to appear, at the time and place specified : In an action against A. for the non-performance of his agreeme/it, it was held to be unnec- essary for the plaintiffs to aver notice to the defendant, that B. did not appear at the time and place specified, and a special request to the defendant to pay the money before suit brought ; because, the non-appearance of B. was a subject equally within the knowledge of the plain- tiffs and defendant ; and as to the special demand of the money, the payment of which became a present duty, the general averment of licet saepius requisilus, especially after verdict, was sufficient. Lent v. Padelford, 10 Mass. Rep. 230. / 231 Of Contracts for Services and Work; and [Part II. * CHAPTER III. OF CONTRACTS FOR SERVICES AND WORKS : AND OF THE STATUTE OF FRAUDS RELATING TO AN UNDERTAKING WHICH CANNOT BE PERFORMED WITHIN A YEAR. If a person is employed to do or transact any business or employment for another, and it is expressly agreed between the parties that it shall be completed for a particular sum of money ; and the work is finished accordingly, an action of indebitatus assumpsit will lie for the money so agreed to be given : but if no express agreement be entered into, as to the sum to be paid, the law will imply that the employer undertook or assumed to pay the person employed so much as his labour reasonably deserved ; and upon this implied promise an action of assumpsit on a quantum meruit will lie. So, where a person is employed to do or perform some particular work, or professional business for hire, the law implies, that the person so engaged not only undertakes to do the work, &c. but also to use all due diligence, skill, and attention in the execution thereof; so that if he either refuses to do or complete the work, or does it in an unskil- ful and improper manner, he will be liable to an action of assumpsit, at the suit of the employer, for the amount of the damages which he may sustain in consequence thereof. And, when one man engages either to serve or employ another for hire, but afterwards refuses so to do, he is liable to the same kind of action. But where an agreement is made for any work or service, and it is either expressly agreed, or by necessary implication understood, that the party shall have more than a year to perform it, such agreement must be reduced into writing ; for by the last branch of the 4th clause of the statute it is enacted, u That no action shall be brought to charge any person upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully author- ised." *Now upon this clause of the statute it has been holden, that if no time be stipulated for the performance of the agreement, and it is capable of being per- formed within a year from the making thereof, it is not within the statute, though it be not actually performed till after that period. Thus, where a parol promise was made to pay so much money upon the return of such a «hip, *231 *232 Chap. 3.] Of the Statute of Frauds Relating thereto. 232 which ship happened not to return within two years' time after the making of the promise : It was made a question before all the judges whether this prom- ise was void by the statute of frauds. They were of opinion that it was a good promise, and not within the fourth clause of the statute, for that by possi- bility the ship might have returned within a year ; and though by accident it happened not to have returned so soon, yet, they said, that clause of the stat- ute extends only to such promises, where, by the express appointment of the party, the thing is not to be performed within a year.(a)(120) So, in the case of Peter v. Compton,{b) which was an action upon a parol agreement, by which the defendant promised, in consideration of one guinea, to give the plaintiff so many on the day of his marriage. — And the question up- on the trial, before Holt Ch. J., was whether such agreement ought to be in writing, for the marriage did not happen within a year : the Chief Justice ad- vised with all the judges, and by the great opinion (for there was a diversity of opinion, and his own was e contra) where the agreement is to be performed up- on a contingency, and it does not appear in the agreement, that it is to be per- formed after the year, there a note in writing is not necessary, for the contingen- cy might happen within the year ; but where it appears by the whole tenor of the agreement, that it is to be performed after the year, there a note is necessa- ry; otherwise not. So, in the case of Fenton v. Emblers, executor of May,(c) where the promise was stated in the declaration thus : " That William May, the defendant's testator, in consideration that the said Sarah (the plaintiff) would be and become the housekeeper and servant of the said William, and take upon herself the care and management of his family, &c, and perform the same as long as it should please the said William and Sarah, undertook and promised to pay wages to the said Sarah, at and after the rate of 6/. for one year ; and also by his last will and testament, to give and bequeath to the said Sarah a legacy or annuity of 16/. by the year, to be paid to her yearly, &c. ; and that the said Sarah, confiding in the said promise, entered into the said testator's service, and became his housekeeper, &c. and continued so for three years and 59 days ; but that the said William had not *performed his said agreement, and did not leave her such legacy or annuity, &c. And it appear- ed upon the evidence that there was such an agreement between the said Wil- liam May and the plaintiff, but that it was by parol, and not in writing. It appeared also, that the plaintiff did enter into the testator's service, and con- tinued in such service till his decease ; but that the testator did not give her by his last will or otherwise, the said annuity of 16/. per annum, or any other an- nuity. An objection was taken upon the fourth section of the statute of frauds, (a) Anonymous Case, 1 Salk. 280. Comb. 463. Skin. 326. S. P. (6) Skin. 353. Holt. 326. S. C. See also (c) 3 Bui. 1278. 1 Bl. Rep. 353. S. C. (120) The rules laid down in the text, are fully sanctioned by the decision in Moort v. Fox, 10 J. R. 244. *233 233 Of Contracts for Services and Works ; and [Part II. that the agreement was not to be performed within the year. But Denniso?i Just., and the rest of the Court, were of opinion, " that the statute of frauds plainly means an agreement not to be performed within the space of a year, and expressly and specifically so agreed. That a contingency Avas not with- in it ; nor any case that depended upon a contingency ; and that it did not ex- tend to cases where the thing only might be performed within the year.'' An agreement, however, which is in all events to remain unperformed for more than a year, is within the statute ;( 121 ) and no parol evidence can be given to connect the signature of a subscription to a literary work with the prospectus, so as to take the case out of the statute. Thus, in the case of Boydell v. Drummond,(d) which was an action for not accepting certain num- bers of a series of large prints from Shakspeare 1 's plays, which had been pub- lished by the plaintiff and his late partner Alderman Boydell. At the trial, it appeared, that the first prospectus of the work was published in 1786, and a second prospectus in 1787. On the 1st of May 1789, the Shakspeare gallery was opened in Pall Mall, with an exhibition of 34 large pictures then finished ; and in March 1790, an additional number were exhibited, amounting in all to 56 ; and also specimens of the prints in a state nearly ready for publication. In April 1790, the defendant became a subscriber to the large prints (a splen- did edition of the letter-press of the plays, and a series of small prints to bind up with it, forming a distinct part of the proposed plan of publication.) The defendant's subscription was No. 1103, the whole number of subscribers at the close having been 1384. At the time of his subscription, the defendant paid his two guineas in advance, and had a receipt given him for the same. The delivery of the first number was made in June 1791, when it was delivered to the defendant's order, who thereupon paid the third guinea, and two more in advance for the next number. The second number was delivered to the de- fendant on the 29th of March 1792, was advertised as before, and the defen- dant also sent for that, and paid his three guineas, two of them in advance for the third number as before. These numbers were delivered out at the gallery in Pall Mall, being the place where the defendant had subscribed. Others were delivered *out to other subscribers at Messrs. BoydelVs shop in the city. After this time, at least one number was delivered to the subscri- bers in general in every year, sometimes two, and in two instances three within a year, until the whole were completed ; but the defendant never sent for any more of the numbers, though he never gave notice of his intention to discon- tinue taking them in. Nor did the plaintiff ever make any particular demand on the defendant to take the remaining numbers and pay for them till 1807, (rf) 11 East Rep. 142. (121) A parol agreement to sell the mere improvements made on land is not, as to the subject matter, within the statute of frauds, and may be enforced by an action ; but where the agreement was made in January or February, to pay for such improvements one year Iroia March then next following ; it was held, that such contract was within the provisions of the statute. Lower v. Winters, 7 Cowen, 263. ♦234 Chap. 3.] Of the Statute of Fraud* relating thereto* 234 after the whole work was completed and published ; but the rest of the numbers as they came out were regularly laid by for him according to the order of time of his subscription. The last number was published in 1S03, and the number of prints finally delivered to the subscribers, who sent for them, w r as 12 more than the stipulated number. One of the conditions of the prospectus was, " that one number at least should be published annually ; and the proprietors were confi- dent they should be enabled to produce two numbers within the course of every year." Printed copies of the two prospectuses were lying about the shop for public inspection at the time of the defendant's subscription, and the general practice was to deliver them to subscribers at the time of their subscription. But the book in which he subscribed his name had only for its title — " Shak- spcarc subscribers, their signatures," without any reference to either prospec- tus in the terms of it. After the whole work was completed and published, an application was made to the defendant in August 1806, and again in March 1807, to take and pay for the remaining numbers of his subscription; to which latter, he returned an answer in writing, dated 1st of April 1807, in which he stated, that he ceased taking in the numbers of the Boydcll Shah- speare many years ago, in consequence of the engagement not being fulfilled on the part of the proprietors ; and not having been applied to from that time till very lately, he did not consider himself called upon to complete the set. The receipt for the defendant's subscription was in this form : " Received from J. Drummond Esquire one guinea, as the second subscription to the first num- ber of the Shakspeare with large plates ; and at the same time received two guineas as the first subscription to the second number, agreeably to the original proposals. (Signed for the plaintiffs.)" The Court, after argument, were of opinion that this case was within the statute. And Lord EUenborough Ch. J. said, " We are all clearly of opinion that this was not a contract which was to be performed within a year, and ought therefore to have been evidenced by writing signed, as required by the statute of frauds. The whole scope of the undertaking shows that it was not to be performed within a year ; and if, con- trary to all physical probability, it could have been performed within that time, yet the whole work could not have been obtruded upon the subscribers at once, so as to have entitled the publishers to demand payment of the whole sub- scription from them within the year.^It has been argued that *an inchoate performance within a year is sufficient to take the case out of the statute ; but the word used in the clause of the statute is, performed, which ex vi termini must mean the complete performance or consummation of the work: and that is confirmed by another part of the statute, requiring only part performance of an agreement to supersede the necessity of reducing it to writing; which shows, that when the legislature used the word performed, they meant a complete, and not a partial performance. If this were not the true construction of the statute, great inconvenience would ensue in the execution of contracts for large works, which must necessarily require a long time for their completion ; as in the instance of Somerset House, which occupied many years in the building. If 30 *235 235 Of Contracts for Services and Works. [Part II. one stone were laid within a year from the making of the contract by parol, it would, according to the argument, have taken the case out of the statute, leav- ing the terms on which the great mass of it was to be built to fallacious mem- ory alone, to be exercised at some distant period ; which would let in the tery mischief which the statute meant to guard against. Therefore, to exclude per- jury, and to perpetuate the true terms of contracts which were not to be per- formed within a year, there is no doubt that the statute meant a consum- mate performance within that time. Now here, by the very terms of the con- tract, and clearly in the contemplation of the parties from the whole scope of it, it was not to be performed within a year; for the agreement was to publish at least one number annually after the delivery of the first, and according to the number of the pictures to be published, at the rate of two from each play, the work would consist of many numbers. On this ground the case appears to be clearly within the statute, and the objection taken to the action to be well founded. I cannot connect the subscription of the plaintiff's name in the book with the prospectus ; nor does the defendant's letter refer to the prospec- tus produced at the trial. It speaks indeed of his engagement with the propri- etors of the Boydell Shakspeare ; but it cannot be shown to be the engagement contained in the particular prospectus without parol evidence, which the statute excludes. If there had been a plain reference to the. particular prospectus, thatmi^ht have helped the plaintiff; but there is nothing of that kind." We will now pursue the main subject of the present chapter, and consider it under two general divisions, namely, first, of services and works done and per- formed upon an employment or retainer, for which the party employed is to be paid either a particular sum expressly agreed upon between the contracting parties; or, if no fixed price be agreed upon, then upon an implied undertaking to pay what is just and reasonable, and which is technically termed a quantum meruit. And, secondly, of particular services, which divide themselves into two classes, viz. first, those which are of such a nature as cannot be made the subject of an action, though the employer, who receives a benefit therefrom, •may, perhaps, be bound in honour and conscience to remunerate the party ; and, secondly, those services which are performed voluntarily, and with the sole view of being rewarded either by a gift, or by a legacy. \ 1. of services and works done and performed, and to be paid for either at a stipulated price, or upon a quantum mervit. The kind of services and works which are most commonly the subject of discussion in our courts of law, are those which relate to the building or re- pairing of houses, &.c. And upon contracts of this description, we find it has been determined, that where a carpenter or builder agrees to erect any build- ing for a particular sum of money, but additions or alterations are afterwards made, the tradesman is bound by the contract, as iar as it can be traced, and entitled *o recover upon a quantum merutt for the exoe*a only. Thus, in the Chap. 3.] Of Contracts for Services and Works* £86 case of Pepper v. Burland,(e) which was an action of assumpsit for work and labour as a carpenter. The defendant proved that the plaintiff contracted to do all the carpenter's work necessary to be done in a house which the defen- dant was building, for a certain sum. It was admitted that the roof of the house had been done in a manner different from that specified in the contract ; and the defendant had paid money into court sufficient to cover the excess. A plan was produced, and proved by the plaintiff, wherein the dimensions of the house were stated to be fifteen feet ; but the house on which the work wa« done was seventeen feet. It did not appear that the plaintiff had ever seen this plan before he began to work ; but the house was begun by the bricklayer, on the scale of seventeen feet, before any contract was made with the plaintiff. Lord Kenyon Ch. J. said, " I have often declared, and have had the good fortune to have my opinion adopted by juries, that where some additions aro made to a building which the workman contracts to finish for a certain sum of money, the contract shall exist, as far as it can be traced to have been follow- ed, and the excess only paid for according to the usual ^rate of charging. I think that the plaintiff has failed in showing the plan by which he contracted to work to be the same as that produced. I admit that if a man contracts to work by a certain plan, and that plan is so entirely abandoned that it is impossible to trace the contract, and to say to what part of the work it shall be applied, in such case the workman shall be permitted to charge for the whole work done by measure and value, as if no contract at all had ever been made : but in the present case the contract is not proved to have been wholly abandoned ; for it appears that the dimensions were the same when the *plaintiff contracted as they were when the building was finished ; the only excess was in the altera- tion of the roof; and money enough to cover that has been paid by the defen- dant into court. The jury, under this direction, found a verdict for the defen- dant. So, in the case of Robson v. Godfrey (f) which was an action to recover the amount of a shipwright's bill. The plaintiff had repaired a vessel belonging to the defendants ; and it appeared there was an agreement in writing, which described the work to be done, and regulated the mode of payment. The re- pairs had likewise been estimated, and the expence ascertained. It was agreed, that the expence should not exceed the sum of 6201. And payment was to be made by 100/. at a fortnight after the repairs, 100/. at a month, 100/. at six weeks, and the residue by an approved bill at six months, which had not expired at the time the action was brought. The declaration contained merely counts for work and labour, and materials generally. It was in evidence, that the original plan for the repairs had been varied ; that other work had been done by the de fendant's order out of the scope of the agreement, and beyond the repairs origi- nally contemplated between the parties. For the defendants it was objected, that the plaintiff should have declared on the special agreement as far as it extended; («) Peake'a Cas. N. P. 103. (J) Holt. X. P. Cas. 236. I Stark. 275. •237 237 Of Contracts for Services and Works. [Part II. and for any excess he might have had recourse to his quantum meruit. Gibbs Ch. J. before whom the cause was tried, said, " I agree with the principle laid down by the defendant's counsel, that, up to the extent of the estimate, the plaintiff must be paid according to the estimated prices ; and beyond the esti- mate, he is to be compensated on the footing of a quantum meruit. But the objection is no ground of nonsuit. This point has been perplexed by cas- es ; but I have always understood the rule to be, that unless there be some- thing in the terms of the special agreement, which either by express stipulation, or necessary intendment, precludes the plaintiff from recovering for work and labour generally, he is entitled, after the contract has been executed, to main- tain the present form of action. It is every day's practice to bring an action fcr goods sold and delivered, though they have originally been ordered upon spe- cial terms of agreement. This case falls within the rule I have stated. There are stipulations in this contract which render it impossible for the plaintiff to recover on the common counts ; the mode of payment is specifically defined, and the time for which credit was to be given has not yet elapsed. But much of the work was performed under additional orders, independent of the special contract ; and for that portion the plaintiff may recover under the common counts. But looking to the provisions of this agreement, I am of opinion, that he can- not recover for the work and labour which were performed under the terms of the written contract." *But where no new or extra work has been done, nor any agreed deviation from the contract, but the builder has improperly departed from the specifica- tion and plan, and put in bad materials, &c. it has been holden, that he can- not recover upon a general indebitatus assumpsit count for work and labour up- on a quantum meruit. Thus, in the case of Ellis v. Hamlen,(g) which was an action brought by a builder against his employer, upon a special contract for building a house of materials and dimensions specified in the contract, to recov- er the balance of the sum therein agreed on ; the principal part of the price having been paid. At the trial before Mansfield Ch. J., the defence was, and the evidence supported it, that the plaintiff had omitted to put into the building certain joists and other materials of the given description and measure. The counsel for the plaintiff proceeded to inquire of the witnesses what additional sum must be expended on the house to make it equal in value to that which was specified in the contract, contending that the plaintiff was entitled to recov- er in this action the whole sum which was specified in the contract, excepting thereout the amount of this difference in value, which they said would be the measure of damages, if an action had been brought on the contract by the em- ployer against the builder for not performing his contract ; and that if the sums which had already been paid to the plaintiff on account did not amount to the whole price specified in the contract, deducting therefrom the amount of the before-mentioned difference in value, the plaintiff was entitled to a verdict for the residue, minus that difference. But the Chief Justice was of opinion, that (?) 3 Taunt. 55. '238 Chap. 3.] Of Contracts for Services and Works. 238 the plaintiff not having preformed the agreement he had proved, ought to be nonsuited. The plaintiff's counsel then resorted to the count for work and la- bour and materials, upon a quantum meruit ; and said, that the plaintiff having the benefit of the houses, was bound, at least, t„ pay for them according to their value. But his lordship said, " Suppose you had come hither upon a quantum meruit only, could you have recovered on it ? Certainly not. The defendant would have said, ' I made no such agreement. I agreed to pay you if you would build my house in a certain manner, which you have not done.' Here the plaintiff has properly declared on his special contract; and he has shown and proved that he made such a contract, and has received much mon- ey on it. He cannot now be permitted to turn round and say, I will be paid by a measure and value price. The defendant agrees to have a building of such and such dimensions : Is he to have his ground covered with buildings of no use, which he would be glad to see removed, and is he to be forced to pay for them besides ? It is said, he has the benefit of the houses, and therefore the plaintiff is entitled to recover on a quantum meruit ; to be sure it is hard that he should build houses and not be paid for them ; but the difficulty is to *know where to draw the line ; for if the defendant is obliged to pay in a case where there is one deviation from his contract, he may equally be obliged to pay for anything, how far soever distant from what the contract stipulated for." The plaintiff' accord- ingly was nonsuited ; and the case was never again moved. In an action of assumpsit, by a carpenter, upon a quantum meruit for work and labour done, and materials found, it is competent to the defendant, even without notice to the plaintiff, to prove that the work done was not worth so much as the plaintiff claims ; and if it appear that the plaintiff has been paid on account as much as the work was worth, he cannot recover.(122) And so it seems that the defendant may be let into such a defence where the contract was for the work to be done at a certain price ; at least if he give the plaintiff" pre- vious notice of such defence, so that he may be prepared to meet it. Thus, in the case of Boston v. Butter, (h) which was an action of assumpsit for work and labour done, and materials found. At the trial, the plaintiff's witnesses proved, that the defendant employed the plaintiff, a carpenter, to do some work for him on his farm ; and the plaintifPs workman put on a roof on a linhay, and also roofed a barn, (the defendant finding the timber and nails,) and also made gates on the farm, and rails near the house : and the plaintiff demanded 3/. lis. Id. as now due ; but his witnesses did not make out above 3/. On the part of the defendant it was stated, that it would be proved that the work had been done by the plaintiff in a very improper and insufficient manner ; that the linhay was too weak in the roof; which, after being covered with thatch, sunk in the middle, so as to let the water through ; and that neither the rafters or (h) 7 East Rep. 479. (122) See Grant v. Button, 14 J. R. 377. *239 239 Of Contracts for Services and Works. [Part II. roof of the linhay or the barn were sufficiently supported. And therefore it was contended, that the plaintiff was not entitled to recover what he now claim- ed, as remaining due to him. The learned Judge rejected the evidence pro- posed ; and the plaintiff recovered a verdict for 31. with liberty to the defendant to move for a new trial ; which was accordingly done. And the Court deter- mined, that as the plaintiff's claim was upon a quantum meruit, the evidence offered at the trial, on behalf of the defendant, ought to have been received : and therefore they made the rule absolute for a new trial : and Lord Ellenbo- rough Ch. J. said, " In some cases the plaintiff may not be prepared to meet an objection of this sort at the trial ; but it does not appear here what had pre- viously passed upon the subject between the parties. Where a specific sum has been agreed to be paid by the defendant, the plaintiff may have some ground to complain of surprise, if evidence be "admitted to show that the work done, and materials provided, were not worth so much as was contracted to be paid ; because he may only come prepared to prove the agreement for the specific sum and the work done, *unless notice be given to him that the payment i3 disputed, on the ground of the inadequacy of the work done. But where a plaintiff comes into court upon a quantum meruit, he must come prepared to show that the work done was worth so much ; and therefore there can be no injustice to him in suffering this defence to be entered into, even without notice." Mr. Justice Le Blanc said, " I think that in either case the plaintiff must be prepared to show that his work was properly done, if that be disputed, in order to prove that he is entitled to his reward ; otherwise he has not performed that which he undertook to do, and the consideration fails. And I think it is competent to the defendant to enter into such a defence, as well where the agreement is to do the work for such a sum, as where it is general to do such a work : and it is open to the defendant to prove, that it was executed in such a manner as to be of no value at all to him, or not to be of the value claimed." And in a subsequent case of Farnsworth v. Garrard, (i) which was an action of assumpsit upon a quantum meruit for work and labour, and materials found. At the trial, it was proved, that the plaintiff had rebuilt the front of a house for the defendant ; but when finished, it was considerably out of the perpendicular, and according to several oi the witnesses, in great danger of tumbling down, though others were of opinion that it might stand for many years. Lord Ellen- borough Ch. J. said, " This action is founded on a claim for meritorious ser- vice. The plaintiff is to recover what he deserves. It is, therefore, to be con- sidered how much he deserves, or if he deserves any thing. If the defendant has derived no benefit from his services, he deserves nothing, and there must be a verdict against him. There was formerly considerable doubt upon this point. The late Mr. Justice Buller thought, (and I, in deference to so great an authority, have at times ruled the same way,) that in cases of this kind, a cross action for the negligence was necessary, but that if the work be done, the (i) 1 Campb. 3S. '240 Chap. 8.] Of Contracts for Services and Works. 240 plaintiff must recover for it. I have since had a conference with the judges on the subject ; and I now consider this as the correct rule, — that if there has been no beneficial service, there shall be no pay ; but if some benefit has been deriv- ed, though not to the extent expected, this shall go to the amount of the plain- tiff's demand ; leaving the defendant to his action for negligence. The claim shall be co-extensive with the benefit. Here then has there been any benefit, and to what amount? If the wall will not stand, and must be taken down, the defendant has derived no benefit from the plaintiff's service, but has suffered an injury. In that case he might have given him notice to remove the materials. Retaining them, he is not likely to be in a better situation than if the plaintiff had never *placed them there ; but if it will now cost him less to rebuild the wall, than if it would have done without these materials, he has some benefit and must pay some damages." The jury found a verdict for the defendant. So, where a person undertakes to perform a work of skill and labor, and fails in the object; so that his employer derives no benefit whatever from the work, the former is not entitled to any remuneration, (k) If a man promises to build a mill or house for another, within a certain time, if he fails, no action lies upon this promise, unless there be a consideration al- leged for the doing it, it being nudum pactum, or a promise without any consid- eration.^) So, a count in a declaration stating, that the plaintiff retained the defendant, who was a carpenter, to repair a house before a given day ; that the defendant accepted the retainer, but did not perform the work within the time, per quod the walls of the plaintiff's house were damaged, cannot be supported. But a count stating that the plaintiff, being possessed of some old materials, re- tained the defendant to perform the carpenter's work on certain buildings of the plaintiff, and to use those old materials ; but that, the defendant, instead of using them, made use of new ones, thereby increasing the expence, i3 good. Thus, in the case of Elsee and another v. Gatward,(m) which was an action upon the case in tort. The first count in the declaration stated, that the plaintiffs, on the 29th of August, 1791, were about to build a warehouse, &c. and to rebuild and repair certain parts of a dwelling-house and stables, - (*) 3 Term Rep. 143. See aleo 1 Rol. Abr. (0 I Rol. Abr. fo. 9. pi. 1. El vide ante 7. 9. pi. 2. 3. *241 241 Of Contracts for Services and Works. [Part IT. the defendant afterwards accepted of such retainer and employment upon the terms aforesaid, and could and ought to have completed all such brick- layer's and carpenter's works within the said respective times, yet the defen- dant contriving to injure the plaintiffs, &c, did not, nor would completely tile or otherwise cover in the said warehouse, &c. on or before the said 1st of * November, nor did nor would finish the bricklayei's and carpenter's works of the warehouse on or before the said 1st day of December, and the whole of the remaining repairs on or before the said 25lh day of December, &e. ; but, on the contrary thereof, permitted the said warehouse to continue untiled and uncovered, &c. ; in consequence of which said neglect of the defendant, the walls of the said premises were greatly sapped and rotted, and the ceiling damaged and spoiled, and the plaintiffs were obliged to continue tenants of another warehouse and stables, ) 3 Bl. Com. 28. 2 Atk. 332. Sed. vide 2 (x) Turner v. Phillips, lb. 122. f?£' In' » Ellz - 59 ; „ „ (y) This is to be understood a lunar month, (w) Fell v. Brown, Peake, N. P. 96. 5Esp. Rep. 163. *243 248 Of Contracts for Services and Works. [Part II. •with abbreviations, it was enacted by the statute 12 Geo. 2. c. 13. s. 5., that " it shall and may be lawful to and for any attorney, clerk in Court, and so- licitor, to write his bill of fees, charges, and disbursements with such abbreviations as are now commonly used in the English language, any thing in any former law to the contrary notwithstanding." On this statute it has beenholden, that an attorney may deliver a bill of costs, containing such abbreviations of English words as are usual and intelligible.^) And by section six of the 3ame act it is declared " that the said act of the second year of His present Majesty, for the better regulation of attorneys and solicitors, or any clause, matter, or thing therein contained, shall not extend to any bill of fees, charges, and disbursements due from any attorney or solicitor, to any other attorney or solicitor, or clerk in court ; but every such attorney, &c. may use such remedies for the recovery of his fees, charges, and disbursements against such other attorney or solictor, as he might have done before the making of the said act." Upon these and other acts of parliament regulating attorneys' and solici- tors' bills of costs, a great variety of cases are to be met with in our law books ; but they are all so accurately collated and brought together in Mr. Tida"s very valuable treatise on the Practice of the Courts, that I cannot do better than refer the reader to _that work (*) where he will find the result of all the cases clearly digested. In *one part of that chapter it is stated,(a) that, " if the whole bill be for conveyancing it cannot be taxed. But if any part of an attorney's bill which has been delivered be for business done in court, the bill must be delivered a month before the action is brought, otherwise the plaintiff cannot recover ; (b) and a warrant of attorney, (c) or dedimus po- testalem,(d) charged in an attorney's bill, is a sufficient item to enable the Court to refer the bill for taxation ; though, with this exception, it be en- tirely for conveyancing. So, where one of the charges was for drawing and engrossing an affidavit of debt, in order to hold a party to bail, which appear- ed to have been sworn, the Court of King's Bench held this to be a charge for business done in court, which made the bill taxable, (e) But a charge for preparing an affidavit of the petitioning creditor's debt and bond to the chancel- lor, in order to obtain a commission of bankruptcy, was holden not to be a taxable item within the statute, as being a charge at law or in equity ; the affidavit not having been sworn, nor a commission issued. (/) It has been made a question whether the attorney may recover for charges or dis- bursements not taxable, when part of his demand is for business done in court ; and the distinction that has been taken is, that he may, where he has delivered no bill at all ; but that where he has delivered a bill irregularly, he cannot: (^)and, ac- (z) 4 Taunt. 193. (d) 1 New Rep. 266. (*) Chap. iii. p. 89. &c. 7th edition. (e) 6 Term Rep. 645. (a) Tidd's Prac. ch. iii. 93. (/) 3 Barn. & Aid. 486. (6) 6 Term Rep. 645. Peake's Cas. 102. (g) 1 Campb. 439., and see the case« 1 Campb. 437. there cited, (c) 4 Campb. 68. •249 Chap. 3.] Of Contracts for Services and Works- 249 cordingly,inalatecase,(^) an attorney not having delivered any bill to his client be- fore action brought, but having afterwards delivered a bill of particulars under a judge's order, was held to be entitled to recover charges for money paid for his client's use, having no reference to his business of an attorney, although other items in his bill of particulars were taxable. Where an attorney had paid money, in consequence of his undertaking to pay the debt and costs, this was holden not to be a disbursement by him as an attorney, within the meaning of the statute, (i) An attorney having delivered two separate bills, one of which was for fees and disbursements in causes, and the other for making conveyances, a rule was made in the King's Bench for taxing both.(£) And so, where it was moved that the Master might be directed to tax those articles in an attorney's bill, which related to conveyancing and parliamentary business, the rest being for management of causes in the Court of King's Bench, Lord Mansfield said " there was no doubt but the Master might tax the whole ; that he recollected a case where the fees paid to a proctor, for business done in the Ecclesiastical Court, made part of the *bill ; and it was determined that as the whole bill had been referred to the Master he might tax that part of it."(Z) The Court of King's Bench will refer an attorney's bill to be taxed, though all the business was done at the Quarter Sessions ; (m) and in such case an action cannot be maintained for the amount of the bill, unless it be signed, and delivered a month before the bringing of the action, (n) And a bill was referred to be taxed for business done in a criminal suit in the court of Gieat Sessions at Carmarthen ; and though it was objected that it would be impossible for the Master to tax the costs in Wales, not knowing the practice there, yet the Court held that he could as well tax these costs as costs in the Spiritual Court ; and if he were at a loss he might call in assistance, (o) In the Exchequer, a crown solicitor's bill of costs, for business done under an extent, is taxable, (p) But the Court cannot order a solicitor's bill of costs, for business wholly done in the House of Lords in the prosecution of an appeal, to be referred for taxation ; because their officer has no means whereby he may be enabled to tax such a bill.(y) Upon the stat. 5 Geo. 2. c. 30. s. 25. relating to the expences of suing out a commission of bankrupt, it has been holden, that the petitioning creditor is liable to the solicitor for the expence of conducting the commission, up to the choice of assignees, (r) But as between the solicitor and messenger there is no implied contract on the part of the former to pay him his expences. (s) And under the 46th section of the same statute, by which is it enacted, " that all bills (h) 11 East Rep. 285. (o) Lloyd v. Maiind, T. 25 Geo. 3.K. B. (t) 6 Taunt. 196. 1 Marsh. 539. Tidd's Prac. 94. (fc) Say. Rep. 233. Tidd's Prac. 93. (;>) Rex v. Partridge, T. 56 Geo. 3. 3 (0 Dousj. 199. in notis. Price, 280. West on extents, 230. (m) 4 Term Rep. 496.; but see Id. 124. (7) 4 Price, 279. Barnes, 122. contra. (r) 1 Rose. Cas. 449. Holt, N. P. Cas. (») 5 Term Rep. 631. 1 Esp. Rep. 137. 245—376. S. C. (a) Holt, 247. in notis. *250 250 Of Contracts for Services and Works. [Part II. oi fees or disbursements claimed or demanded by any solicitor, clerk, or attor- ney employed under any commission of bankrupt, shall be settled, adjusted, and certified by one of the Masters of the Court of Chancery; and so much as the Master shall certify to be due to such clerk, solicitor, or attorney, and no more, shall be paid by the assignee under such commission," it has been determined that an action may be maintained by a solicitor against an assignee for business done under a commission of bankrupt, one month after he has delivered a copy of his bill, although it has not been taxed by a Master in Chancery. (t) But an attorney's bill for obtaining a bankrupt's certificate must be signed and de- livered a month before he can be sued thereon, (u) Though the statute 2 Geo. 2. c. 23. does not extend to bills of fees, &c. be tween attorneys and solicitors, yet it is said (x) to be the uniform practice of the courts to refer an agent's bill to be taxed, upon the *defendant's bringing into court the sum claimed by the plaintiff. It is not necessary, how- ever, that a bill should be signed or delivered before the commencement of an action, (y) And where husiness has been done by an attorney for a client who afterwards becomes himself an attorney, the former need not deliver a bill sign- ed, in ordjr to recover his costs. (z) It is not necessary for an executor or ad- ministrator of an attorney to deliver a bill of costs for business done by his tes- tator or intestate, before the commencement of an action, the statute 2 Geo. 2. c. 23. s. 23. being confined to actions brought by the attorney himself, and not extending to his personal representatives, (a) But such a bill may be referred to be taxed, on the defendant's undertaking to pay what is due. (b) Where an at- torney delivered his bill, and after his death application was made to tax it, and above a sixth part was taken off, it was moved that the executrix might pay the costs ; but the Court of King's Bench held that she should not ; for the words of the above act impose them upon the attorney or solicitor only ; and the executrix is not to blame, if she stand upon his bill, or make out one from his books. (c) Before an attorney's bill has been settled and paid, it may be taxed as a matter of course, at any distance of time(d) : but after it has been settled and paid, and the payment has been long acquiesced under, the courts will not refer it to be taxed as a matter of course, (e) So, where a bond had been given for the debt five years before, and the vouchers had been delivered up, the Court of Common Pleas would not refer the bill to be taxed ; saying an attorney, at this rate, could never be safe.(/) And it is a general rule, that an attorney's bill cannot be taxed at the trial of an action brought upon it, nor (0 1 Stark. 278. ; and see 2 Campb. 273. Pr. C. P. 58. 2 Stark. 59. Tidd's Prac. 95. (b) 1 Salk. 89. 2 Str. 1056. 4 Taunt. 724. 00 2 Taunt. 321. 1 Rose, 119. S. C. (c) 2 Stra. 1056. (i) Tidd's Prac. 95. (d) Per cur. T. 34 Geo. 3. K. B. Tidd's (y) Doug. 199. in notis. Peake's Cas. 1, 2. Prac. 96. 1 Eap. Rep. 221. (e) Say. Costs, 323. Doug. 199. (z) 2 H. Blac. 5S9. 1 Esp. Rep. 420. (/) Cas. Pr. C. P. 109. Pr. Reg. 37. (a) 1 Barnard. K. B. 433. Andr. 276. Cas. *251 Chap. 3] Of Contracts for Services and Works. 251 after verdict, except under special circumstances, (g) It may also be taxed though there was a special agreement between the attorney and his client that the former should be paid for his time, at a certain rate by the day, besides his expences (/t) ; or though he has obtained a warrant of attorney from his client, for confessing judgment for the money due upon his bill ; and has entered up judgment thereupon.(i) But the plaintiff having paid to an attorney the amount of his bill, cannot after a reduction of the paid bill, by taxation recover the difference. (k) The statute 2 Geo. 2. c. 23. s. 23, only requires the delivery of a bill, for the bringing of an action ; and therefore though an attorney cannot bring an ac- tion on his bill till it has been delivered a *month, that circumstance is not necessary to enable him to set it off; but he must not produce it at the trial by surprise. It is however sufficient in such case, to deliver the bill time enough for the plaintiff to have it taxed before the trial. (I) The delivery of a former bill is conclusive evidence against an increase of charge in a subsequent bill, on any of the items contained in it, and strong presumptive evidence against any additional items ; but if there were any real errors or omissions in the former bill, they may be rectified ;{m) and a mistake in the date of items in an attorney's bill, which does not mislead, will not vitiate the delivery, (n) The month mentioned in the statute is construed to be a lunar month,(o) and where a bill of costs is delivered to the party, it must be left with him, and not taken back again.(p) Where two persons are liable to an attorney, for busi- ness done on their joint retainer, it is sufficient for him to deliver a copy of his bill to one of them from whom he received his instructions, and to whom the management of the business was left by the other: but it seems, that a delivery of a copy of the bill in such case, to the one who did not intermeddle, would not be sufficient ; for he cannot be considered as having authority to receive it for both ; nor is he likely to know what foundation there is for the charges in the bill.(y) And where a party in a cause having changed his attorney in the progress of it, a judge's order was afterwards obtained by the second attorney for the delivery of a bill signed by the first, of his fees and disburse- ments, which delivery was accordingly made to the second attorney; this was holden by a majority of the judges of the King's Bench to be a sufficient de- livery of the bill to the party to be charged therewith, within the words and meaning of the statute, so as to enable the first attorney to bring his action against the client for the amount of such bill.(r) So, the delivery of a bill to the attorney of the party to be charged, is deemed sufficient, if the party himself attend the taxation, or the bill be shown to have come to his hands.(s) If the bill be not delivered to the party it must be left for him at his dwelling- (g) Doug. 199.; and see 2 Bos. & Pul. (m) 1 Bos. & Pul. 49. 237. („) 4 Taunt. 806. (ft) Say. Costs, 321. 2 Barnard K. B. 164. (o) 5 Esp. Rep. 168. contra. (p) 1 H. Bl. 290. (t) Say. Costs, 322. Tidd's Prac. 97. (7) 2 Campb. 277. ; and see 1 Campb. 437. (fc) 2 Stark. 85. (r) 12 East Rep. 372. (0 Dou£. 199. Tidd's Prac. 97. (j) 1 Gow. 71. Tidd's Prac. 98. 32 *252 2o2 Of Contracts for Services and Works. [Part II. house, or last place of abode ; leaving it at the compting-house not being deemed sufficient. (t) In an action on an attorney's bill, it is sufficient to give in evidence a judge's order to tax the bill, the defendant undertaking to pay tvhat should appear to be due, and the Master's allocatur thereupon (u) ; and the defendant will not be permitted to question the reasonableness of the items before a jury, (x) In such an action the nisi prius record is good prima facie evidence to show that the action was not commenced till the expiration of a month after the delivery of the bill (y ) ; but where it is material for the defen- dant *to show that the action was commenced earlier than it appears to have been by the nisi prius record, the declaration delivered by the plaintiff is admis- sible evidence, (z) However, it is advisable in all cases to produce and prove a copy of the writ. Where an attorney has regularly deliveied a bill signed, he may give a copy of it in evidence, without proof of notice to produce the original. (a) But unless a duplicate of the bill be kept, the plaintiff cannot give parol evidence of its contents, without a notice to produce it. (b) Negligence of an attorney in the conduct of a cause, cannot be set up as a defence tc an action on his bill of costs in that cause, (c) But if an attorney be retained to prosecute or defend an action or perform any other professional business, the law implies a contract or promise on his part that he will use due diligence, skill, and attention ; and if he is guilty of any gross negligence or conducts his business ignorantly and unskilfully, he is liable to an action of as- sumpsit for any damage his client may sustain in consequence thereof. This was settled in the case of Russel v. Pahner,(d) which was an action of assump~ sit against the defendant, he being an attorney and retained by the plaintiff to prosecute an action at his suit against John Stewart in the Court of King's Bench, for not charging the latter in execution in due time according to the rules and practice of that Court. The cause was first tried before Lord Cam' den, when a verdict was given for the plaintiff for 3000/. the whole debt, by his Lordship's direction ; but afterwards a new trial was granted, his Lordship and the Court being of opinion, that he had misdirected the jury, in telling them they ought to find a verdict for the whole debt : whereas this action sounds merely in damages, and the jury ought to have been left at liberty to find what dama- ges they thought fit. But upon the second trial, the jury were told they might find what damages they pleased, and accordingly they found 500/., as it appear- ed to them in evidence, that Stewart was not totally insolvent ; and against this latter verdict the counsel for the defendant moved for a new trial upon the ground that the defendant had not been guilty of any negligence, but only an error in judgment in the construction of a doubtful point of practice : for the rule of the Court of King's Bench made in Trinity term in the 2d year of Geo. (0 2 Bos. &. Pul. 313. ; bat see 1 Stark. (a) 2 Bos.fc Pul. 237. 3 Esp. Rep. 167. 324. (6)2Campb. 110. (u) 2Campb. 496. (c) Tempter v. MLachlan, 2 New Rep. (x)Doug. 193. 136. . _ (f) 1 Bob.&. Pul. 263. (<*) 2Wils. 32§. tOSCampb. 497.il. *2«8 Chap. 8.] Of Contracts for Services and Works. £53 I. touching this matter, is in very doubtful words, viz. " If any plaintiff shall obtain judgment in the court here in any action against any defendant a prisoner, and shall not charge the said defendant, so in prison remaining, in execution, upon the judgment so obtained, within two terms next after such judgment so had and obtained, then such defendant, so in prison remaining shall have leave to file common bail, or to sue out a writ of supersedeas for his discharge out of custody ;" that from the words of this rule, it seems as if *the plaintiff had two terms next after, and exclusive of the term wherein judgment was obtained against the prisoner, to charge him in execution ; and therefore it was moved en behalf of the defendant that judgment might be stayed, for two reasons : first, because if the defendant Palmer had two terms exclusive of the term wherein judgment was obtained against Stewart, and wherein he rendered himself to prison, to charge Stewart in execution, then this action is misconceived ; and, 2dly, although the meaning and construction of the said rule be, that Mr. Palmer ought to have caused Stewart to be charged in execution, the very next term after the term wherein judgment was obtained against Stewart, and wherein he rendered himself, yet the words of the rule are so doubtful that it can be only considered as an error in judgment in Mr. Palmer, and not a negligence in the duty of his office as an attorney. Upon showing cause, the Lord Ch. J. Wilmot reported that several eminent practisers were examined upon the trial as to the construction and practice upon the said rule, who said, that of lat« years it was well understood, that a person surrendering in discharge of his bail after judgment must be charged in execution the very next term after such surrender : some of them said they believed this was not universally known by the city attomies, and that they thought that it was an omission in Mr. Palmer, proceeding from want of judgment, and not from any wilful negli- gence. The Court, however, refused to grant a new trial, saying, " We are all of opinion, that this action is well conceived, and lies against Mr. Palmer for negligence ; and we have authority to say, that Lord Camden is of the same opinion." But in the case of Pitt v. Yalden,(c) which was an application to the Court of King's Bench against an attorney for negligence for not declaring against a defendant in due time, Lord Mansfield said, " that part of the profession which is carried on by attornies is liberal and reputable, as well as useful to the pub- lic, when they conduct themselves with honour and integrity : and they ought to be protected where they act to the best of their knowledge. But every man is liable to error ; and I should be very sorry that it should be taken for grant- ed, that an attorney is answerable for every error or mistake, and to be pun- ished for it, by being charged with the debt which he was employed to recov- er for his client from the person who stands indebted to him. A counsel may mistake as well as an attorney. Yet no one will say, that a counsel, who has been mistaken, shall be charged with the debt. The counsel, indeed, is honorary in his advice, and does not demand a fee : the attorney may demand (e) 4 Burr.SOGO. 251 Of Contracts for Services a fid Works. [Part II. a compensation. But neither of them ought to be charged with the debt for a mistake. Not only counsel, but judges may differ or doubt, or take time to con- sider. Therefore an attorney ought not to be liable, in cases of reasonable doubt. *7. By Proctors.] — Fees payable to proctors, and other officers of spiritual or ecclesiastical courts, in respect of business done by them in those courts, are recoverable at common law by action of indebitatus assumpsit or quantum me- ruit, and not by suit in the spiritual courts. This question, however, has been much litigated, and there are resolutions both ways : but the better opinion seems to be that fees cannot be sued for in a spiritual court.(/) 8. By Commissioners to examine Witnesses.] — If one be named a com- missioner to examine witnesses in a cause depending in Chancery or Exche- quer, who officiates accordingly, he may bring an action of assumpsit forhis la- bour and pains ; for though he is to be considered as an officer of the court, yet he is not compellable to attend against his will, nor does the trust reposed in him make his taking a reward bribery, for the party is to take care to name such as will serve, and it is but reasonable it should be at the charge of him for whom he officiates, [g) 9. By Arbitrators.] — No action will lie for business done as an arbitrator, unless there be an express promise to pay him a sum of money for his trouble. Thus, in the case of Virany, executor, v.Warne,(h) which was an action of assumpsit for work and labour by the plaintiff's testator in his life-time. The plaintiff's counsel, in stating the case to the jury, said, that the action was brought to recover a sum of money due to the testator, for acting as an arbitra- tor on the part of the defendant, in a dispute which he had had with his part- ner. Lord Kenyon Ch. J. interrupted him by saying, that he conceived the ac- tion was not maintainable : that the appointment of an arbitrator was not of such a nature as to raise a demand for payment ; and that he should tell the jury that his opinion was, that the plaintiff was not entitled to recover any thing, unless she could prove an express promise. The plaintiff was therefore nonsuited. But, in the case of Hardress v. Prowd,{i) where the declaration stated, that whereas the plaintiff, at the instance and request of the defendant, had ta- ken pains to reconcile differences betwixt the defendant and J. S. and others, the defendant promised to pay to the plaintiff 100?. at a certain day; and for this sum the action was brought. It was objected, that this was no more than a voluntary courtesy : But Glyn Ch. J. held e contra ; for this was undertaken at the instance of the defendant, and here was a continued consideration, though the pains taken were past ; and judgment is said to have been given nisi, &c. 10 By Clergymen.] — An agreement with a vicar to pay him so much per (f) Vide 1 Mod. 167. 4 Mod. 254. 5 (g) Carth. 208. Comb. 186. Mod. 238. Gibs. Cod. 1015. Ld. Ray. 703. (k) 4 Esp. Rep. 47. Doug. 629. (t) Sty. 465. ♦255 Chap. 3.] Of Contracts j or Services and Works. 255 annum for preaching is good. (A) (123) So, where a rector gives a person a title to the bishop, by which he appoints him curate of his *parish church, 3nd undertakes to continue him and pay him a salary, " till he shall be otherwise provided of some ecclesiastical preferment, or for fault by him committed, law- fully removed," the rector cannot remove him without cause while he continues rector of that parish ; and the curate may recover his stipend from the rector by action of assumpsit upon the title. But if the rector is bona Jide preferred to another living, the obligation ceases. A readership is not an ecclesiastical preferment within the meaning of such a title. (/) 11. By Stage Performers.] — An action will not lie for the breach of an agreement " to dance at the King's Theatre in the Haymarket, or at such other place as the plaintiff should appoint," if it appear that no license for that theatre was granted by the Lord Chamberlain, as required by the 10 Geo. 2. c. 28., and that the plaintiff did not request the defendant to dance at any other place which was licensed. Thus, in the case of Gallini v. Laborie,{m) which was an action of assumpsit upon a contract by which the defendant, a foreign- er, undertook to come over to England, in order to dance ballets at the Italian opera in the Haymarket, called the King's Theatre, or at such other place as the plaintiff should appoint. The defendant never came at all. But it appear- ed that during the time for which the defendant had engaged, there had been no license from the Lord Chamberlain for the Opera House, though the plaintiff's company had exhibited dancing entertainments there, but the plaintiff had a li- cense for performing musical entertainments at a house in Hanover Square. No request, however, was made to the defendant to perform there ; nor did it appear that he had any notice that the plaintiff had such a license. A verdict, however, was given for the plaintiff: but a motion was afterwards made to the Court of King's Bench for a rule to set aside this verdict, on the ground, that inasmuch as the plaintiff had not obtained a license from the Lord Chamber- lain to perform entertainments of the stage, the defendant could not be bound (k) 1 Sid. 409. 2Keb. 477. (,„) 5 Term Rep. 242. (/) Martin v. Hind, Doug. 141. Cowp. 437. (123) See Moore v. Fox, 10 J. R. 244. By the law of Massachusetts, no religious teacher, unless he be a public protestant teacher of some legally incorporated society, can maintain an action for any moneys assessed pursuant to the third article of the declaration of rights ; for although the constitution contemplates different denominations of protestant christians', yet no religious societies are referred to, unless incorporated ; and no teachers are mentioned as existing, who are not entitled to a maintenance. Barnes v. 1st Parish in Falmouth, C, Mas--. Rep. 401. Turner v. 2d Precinct in Brookfield, 7 Mass. Rep. 60. Lorcll v. Parish of Enfield, 7 Mass. Rep. 230. A minister ordained or appointed a teacher at large, to any religious society who may employ him, and not ordained or appointed as the minister of any particu- lar society, and having contracted with several societies to preach a part of the time in each cannot maintain an action for the taxes paid by those who attend on his instructions as their pastor and teacher, for the support of the minister of the parish where they reside. Kendall v. Kingston, 5 Mass. Rep. 524. Turner v. the second Precinct in Brookfield, ut supra Sanger v. Third parish in Roxbury, 8 Mass. Rep. 265. Washburn v. 4th Parish in W. Springfield 1 Mass. Rep. 32. But if a public religious teacher officiate the whole of a year, he wilf be en- titled to the taxes paid by his parishioners, although he contract for a part of a year only at a time. Sanger v. 3d Parish in Roxbury, ut supra. « 256 256 Of Contracts for Services and Works. [Part II. by a contract which was contrary to the policy of the 10'Geo. 2. c. 28., and under which he would have been subject to heavy penalties and punishments for exhibiting without such license. If, however, the dancers at the Opera House were not considered to come within that statute, then they felljvithiif the pro- hibitions of 25 Geo. 2. c. 36. s. 2. which enacts, " That every place, &c. kept for public dancing, &c. in London and Westminster, &c. without a license from the quarter sessions, shall be deemed a disorderly place," and persons found therein may be punished. And further, that the circumstance of the plaintiffs having another house licensed for different purposes, could not avail as the defendant had no notice of any other place than the Opera House communicat- ed to him. Against this rule it was contended, by the counsel *for the plaintiff, that as the contract was for dancing only, it did not fall within the meaning of the 10 Geo. 2., which prohibits "acting, representing, and performing for hire, gain, or reward of any interlude, tragedy, comedy, opera, play, farce, "or other entertainments of the stage," without letters patent from the King, or licence from the Lord Chamberlain. All these terms, they contended, must be confin- ed to written performances, or such as were capable of being reduced to writing ; because by the 3d section, where the same words are used, it is required " That a true copy thereof shall be sent to the Lord Chamberlain, fourteen days, at least, before the acting, representing, or performing thereof." Now that condi- tion cannot apply to such an entertainment as the present ; for there can be no true copy of a dance. The contract does not even specify any particular sort of dance, which might, perhaps, have been described, however inaccurately ; bui. it is for dancing generally. Besides the contract was not confined to danc- ing at the Opera House, but it was to be at any place where the plaintiff chose : and the defendant never gave him the opportunity of choosing any other place which was licensed, because he never came at all, or proffered himself to the plaintiff. Other persons, with whom the plaintiff also contracted in the like manner, have recovered against him the amount of their salaries, and no such objection was allowed to avail the plaintiff. As to the statute of the 25 Geo. 2. c. 36. it does not apply to this case ; for the 4th section expressly provides, that the act shall not extend to the Theatres Royal in Drury Lane or Covent Garden, or the theatre commonly called the King's Theatre in the Haymarket. But Lord Kenyon Ch. J. said, "I think the statute of the 10 Geo. 2. does extend to this and every other species of stage entertainment. The words are general ; and the intent of the legislature manifestly was to put all places of public diversion under the control of the magistracy. The clause requiring a copy of the entertainment to be previously given to the Lord Chamberlain, of course can only apply to such entertainments as are recited from written per- formances ; and was intended as an additional check against a licentious use of the stage. Possibly the notion of the statutes being confined to such produc- tions, may have arisen from the occasion which is supposed to have given birth to it ; and which was some plays written by Mr. Gay and others, levelled against the existing administration, with intention of bringing it into disre- *257 Chap. 3.J Of Contracts for Services and Works. 257 pute with the people. The subsequent statute of 25 Geo. 2. puts all sorts of places, opened for public diversion, under the direction and appointment of the magistrates at large ; and is applicable to other entertainments than those of the stage. The exception in the 4th clause, that the act shall not extend to the Haymarket and the other two Royal Theatres, was inserted on a supposition that they would be licensed by the Lord Chamberlain ; for the proviso goes on to say, " Nor to such performances and *public entertainments as shall be car- ried on by virtue of letters patent, or license of the crown, or the Lord Cham- berlain." But the legislature evidently did not mean to except these three places, unless they were licensed. Under the former act, no entertainment of the stage, of which dancing is one, can be exhibited without the Lord Chamber- lain's license ; and none having been obtained in this case, the plaintiff cannot call upon the defendant for the breach of an agreement which, without such license, it was unlawful for him to execute. As to the circumstance of other performers having recovered on similar agreements against the plaintiff for their salaries, those verdicts are right ; for being engaged to the plaintiff, and ready to execute the agreement on their part, they ought not to suffer because he did not obtain a license, which it was his business to have procured. 12. By Schoolmasters.] — If part of the terms of a school establishment is, " that a quarter's notice shall be given before the removal of a pupil, or to pay for a quarter" ; and a father, knowing of these terms, removeshis son with- out such notice or payment, he is liable to an action for the amount under a general count of indebitatus assumpsit. Thus, in the case of Eardly v. Price,(n) which was an action of assumpsit, and the plaintiff declared first upon an inde- bitatus count for board and schooling generally ; and, secondly, that in consid- eration that the plaintiff, at the request of the defendant, had received and taken J. W. as a scholar into a certain school or academy kept by the plaintiff, and that J. W. had left the same without giving due notice in that behalf, the defen- dant promised to pay the plaintiff so much money as he therefore reasonably deserved to have. There were also general counts for work and labour, and for money had and received. The cause was tried before Sir James Mansfield Ch. J., when the terms of the plaintiff's school were given in evidence, by which it appeared, that 30/. a year were to be paid for each scholar ; and at the foot of the terms was added this stipulation : " A quarter's notice is required to be given before the removal of any young gentleman from school, or to pay for a quarter. 1 ' James Wyalt having been removed without notice, the plaintiff claimed a right to recover ll. 10;., pursuant to the above stipulation. On the part of the defendant it was objected, that no damages could be recovere 1 upon the general counts, but for what had been actually furnished, and that there was no special count in the declaration so framed as to meet the plaintiff's demand. The Chief Justice overruled the objection, and a verdict was found for the plaintiff. And the Court afterwards, on a motion being made for a new trial (n) 2 New Rop. 333. •258 258 Of Contracts for Services and Works. [Part 11. confirmed the verdict. And Chambre Just, said, " The contract in this case being no longer executory at the time when the demand arose, the objection, founded upon the stipulation being matter of special contract, does not apply." *13. By Printers.] — By the general usage of the printing trade, a printer is not entitled to be paid for any part of his work until the whole is completed and delivered. And this custom has been holden to be the law of the trade ; and as far as it extends, it controuls the general law : and therefore if a work is accidentally consumed by fire before it is entirely printed off, the printer can- not recover any thing for his labour in printing. This was settled in the case of Gillctt v. Maw?nan.(o) (124) 14. By Apprentices.] — If a person wrongfully acquires the labor of an apprentice, by having seduced and harboured him from his master's service, he is liable either to an action of tort, for special damages for the seduction, or to an action of indebitatus assumpsit, for the earnings of the apprentice, at the election of the master. Thus, in the case of Lightly v. Clouslon,(p) which was an action of indebitatus assumpsit for work and labour performed for the defend an*, at his request by one Thomas Sinclair the apprentice of the plaintiff, under an indenture of apprenticeship for a term of years, which, at the time of the work being performed, were unexpired. The defendant se- duced the apprentice from on board the plaintiff's ship in Jamaica, and employ- ed him as a mariner to assist in navigating his own ship from Port Royal, home. The cause was tried before Mansfield Ch. J. and the jury found a ver- dict for the plaintiff, subject to the opinion of the Court on the following ob- jection, namely, that the plaintiff ought to have declared in a special action on the case ; and that indebitatus assumpsit would not lie. The Court, however, determined that the plaintiff had declared properly, and that the action was maintainable. So, in the case of Foster v. Stewart, (q) which was also an action of as- sumpsit for work and labour by the plaintiff and his servant, and the money counts. And at the trial, it was proved, that the plaintiff's apprentice deserted from the plaintiff's ship, and went on board the defendant's, and secreted him- self until the defendant's ship sailed, when he discovered himself to the de- Co) 1 Taunt. 137. (q) 3 Maule & Sel. 191. (p) lb. 112. (124) Where A. agreed to work forB. 10 1-2 months, and spin yarn at 3 cents per run ; and afterwards, and before the term of service expired, left the employment of B., and brought an action against him for spinning 845 runs of yarn, at the stipulated price ; it was held, that the contract was entire, and must be performed as a condition precedent, before the plaintiff could sustain his action for the price of his labor. MMUlan v. Vanderlip, 12 J. R. 165. But, where the defendant hired the plaintiff" to work for him, for one year, atone dollar per day ; and it was also agreed, that the parties should settle once in three or four months ; and at the expiration of about three months, the parties computed the amount due to the plaintiff, for which the defendant gave his promissory note ; and shortly after- wards, the plaintiff left the defendant's service without his consent: In an action on the note ; it was held not to be a valid defence, that the plaintiff had thus left the defendant's service before the expiration of the year. Thorpe v. White, 13 J. R. 53. S. P. Jennings v. Campb, 13 J. R. 94. See Webb v. Duckingteld, 13 J. R. 309. *259 Chap. 3] Of Contracts for Services and Works* 259 fend ant, who carried him to Halifax, to which place he worked his passage, receiving his food ; and during the passage, the plaintiff's and defendant's ships were within hail, but the defendant did not make known to the plaintiff that he had his apprentice on board ; and on the arrival of the defendant's ship at Halifax, the apprentice wished to leave ; but defendant persuaded him to re- main, promising him either wages or clothes and pocket-money ; under which persuasion the apprentice sailed with him to England, and did duty, as one of the crew, but received no wages or clothes or pocket-money. It was deter- mined, that the plaintiff was entitled to waive the tort, and bring assumpsit against the defendant for the work and labour of his ^apprentice, and to recover a reasonable compensation for the service of the apprentice from Halifax to England. 15. By Bailiffs of Cities, in providing Booths, &c. at Elections.] — A candidate at an election for members of parliament is not liable for any part of the expenses of the election, except by positive statute, or his own un- dertaking, notwithstanding a long usage for the expenses being ratably defray- ed by the candidates. But a candidate to represent a city or a borough in par- liament is liable for a share of the expense of administering oaths to Roman catholic electors, under 34 Geo. 3. c. 73. and if he makes use of hustings, erected by the returning officer for the accommodation of himself or his agents, a promise on hi3 part will be inferred to contribute to the expense of erecting them, (r) 16. For procuring the Sale of an Estate, or an Annuity ; or obtaining a Tenant, &.c] — A promise to pay a sum of money in consideration of the procuring a particular purchase is valid ; and when the purchase is completed, an action of indebitatus assumpsit for work and labour will lie against the par- ty promising: thus, in the case of Gordon v t Martin, (s) which was an action of indebitatus assumpsit for work and labour. The plaintiff proved a letter from defendant to him to t.-is effect: " If L. S. shall go through the purchase, (the defendant's brother having been then in treaty with the said L. S. for the sale of an estate,) my brother will give you a handsome gratuity for the trouble and pains you shall be at in transacting that affair, which I promise and as- sure you shall not be less than 300/." And by way of postscript, as follows :. " My meaning is, you shall be paid when the conveyances shall be executed." It was also proved, that the plaintiff had forwarded the said purchase, and that L. S. was greatly induced thereto by the good opinion he had of the plaintiff's veracity and judgment, and his recommendation of the said purchase ; and whether this evidence maintained the declaration, was saved for the opinion of the Court. The Court held, that though the promise was, that the defendant's brother should pay the gratuity, yet it bound the defendant as much as if he had promised for himself; for the work and labour was at his request, and up- on his credit : and Mr. Justice Lee said, " That there was a difference be- (c) Morris v. Burdett, Bart. 1 Campb. 218. (s) Fitzg. 302. 33 •960 £60 Of Contracts jot Services and Works. [Part II. tween a conditional and an absolute undertaking ; as if A. promise to B. such a sum, if C. does not, there A. is but a security for C. : but if A. promise that C. will pay such a sum, A. is the principal debtor ; for the act done was on his credit, and no way upon C. That an indebitatus assumpsit will not lie upon a special agreement till the terms of it are performed ; but when that is done, it raises a duty for which a general indebitatus assumpsit will lie :" and by the whole Court the plaintiff had judgment. *So, an action will lie upon a promise, in consideration that A. would procure for B. the enjoyment of a house, with an averment that he had procured it.(f) Or, that he would procure a tenant for B., and get him a sum of money for the lease of certain premises, (u) So, if A. promise B. 10/., in consideration that he would procure him one who would give him an annuity of 100/. per annum for 900/. B. does not do it, but procures him one who grants it for 1000/., and A. does agree for that annuity, B. cannot bring an assumpsit for the 10/. because this varies from the contract ; but he may have a quantum meruit, (v) Again, in Webb's case, (w) where the plaintiff declared, that whereas Cobham was indebted to J. S., and J. S. to the defendant, the said defendant, in consideration that the plaintiff would procure the said J. S. to make a letter of attorney to the defendant to sue the said Cobham, promised to pay and give to the plaintiff 10/. It was ob- jected, here was not any consideration for the assumpsit ; for the defendant, by this letter of attorney, gets nothing but his labour and travel : but the exception was not allowed of; for in this case, not so much the profit which redounds to the defendant, as the labour of the plaintiff in procuring of the letter of attor- ney is to be respected. So, in Bartlett v. Viner,(x) upon a motion in arrest of judgment, the case was, an action brought by the administrator of Bartlett against the executors of Sir Robert Viner ; upon such a promise made by Sir Robert to the intestate, soil : " If you will procure 15,000/. to be paid into the exchequer, upon the aid of 12c?. in the pound, in my name, or the name of such person as I shall direct, I will give you 600/. &c." Upon the trial, a verdict was given for the plain- tiff; and Darnell said that the action did not lie, because itisbrokage, and against the statute of usury ; and it being a promise against law, it is not obli- gatory. But upon consideration of the case, the Court seriatim delivered their opinion, that the plaintiff ought to have his judgment ; " for nothing appears kere in the declaration against law • for the borrower does not pay brokage, nor the lender receive it ; but the agreement is between two persons not concerned but only in the procuring the money ; and this was an advantage to the defen- dant, and might be in many cases." (A Yel. II. (u) 1 Taunt. 18. (©} Per Pcnrdl Jurt. 18M«d..50e. *26l (y>\ 4 Leon. 110. (x) Skin. 322. Carta. &S1.S. C. Chap. 3.] Of Contracts for Services and Works. 261 2. OF SERVICES AND WORKS PERFORMED, FOR WHICH NO ACTION LIES. Besides those cases which have come in review in the first division of this subject, in which we have seen that no action lies for services rendered, *as for instance, by a physician, &c, there are others of a different description, such as where a man requests A. to procure administration to be granted to the wife of B. as next of kin to C, and would furnish evidence to enable B. and his wife to receive the dividends ; B. and his wife, as such administratrix, promised to pay over to A. the amount of the dividends when received. It was held, that the consideration was insufficient to sustain such a promise, (y) So, no action will lie to recover a sum of money for endeavouring to obtain a pardon. Thus, in the case of Norman v. Cole,(z) which was an action of assumpsit for money had and received, to recover a sum of 30Z. which had been deposited in the hands of the defendant, under the following circumstances : One Tunstall being under sentence of death, in Newgate, the plaintiff was prevail- ed upon to lodge that sum in the hands of the defendant, to be applied to the purpose of procuring him a pardon. On the case being opened, Lord Eldon Ch. J. expressed a doubt whether the action was maintainable, saying, " that he would hold the plaintiff to very strict proof of the means used to procure the pardon;" and called on the plaintiff's counsel to shew upon what grounds they founded their right to recover. They stated that Tunstall was a man of good character before his conviction ; that one Morland being a person of good connections, and having access to persons of interest, the money was to be given to him for so using his interest, by representing, in favourable terms, the case and character of Tunstall. Lord Eldon Ch. J. then said, " I cannot suffer this cause to proceed. I am of opinion, this action is not maintainable : where a person interposes his interests and good offices to procure a pardon, it ought to be done gratuitously, and not for money : the doing an act of that description should proceed from pure motives, not from pecuniary ones. The money is not recoverable." So, an agreement to pay a per-centage upon the day on which any money should be received by the defendant through the means of the plaintiffs infor- mation, does not entitle the plaintiff to the stipulated reward upon the transfer of stock, in consequence of such information, although he might afterwards receive the dividend thereon. Thus, in the case of Jones v. Brinley,{a) the plaintiff declared upon a special agreement, that in consideration that he had stated to the defendant that it was in his (the plaintiff's) power to give the defendant certain information which might enable one F. N. to receive a con- siderable sum of money then due to him, and also in consideration, that the (y) 2Bos.&Pul. 73. v. Braithieaitc, Hob. 105. Moor, 866. Sty. (z) 3Esp. Rep. %3. Sed vide Lampkigk 165. (*) 1 East Rep. 1. •262 262 Of Contracts for Services and Works. [Part U» plaintifT at the request of the defendant would give such information to the de- fendant as might enable the sai.l F. N. to receive the said sum, the defendant *undertook and promised the plaintiff to pay him on the day upon which any money should be received by F. N., or by tne defendant on F. N.'s behalf, through the means of the plaintiff's information, the sum of 10/. per cent, on the money so received. The declaration then averred that the plaintiff did give the defendant certain information respecting divers sums of money which F. N. was entitled to receive under and by virtue of the last will and testament of one A. N., deceased, and that if F. N., through the means of such informa- tion, on the 27th January, 1800, did receive the sum of 500/. whereby the de- fendant by virtue of his promise became liable to pay to the plaintiff 50/., &c. The second count stated more generally, that the defendant was indebted to the plaintiff in so much for certain information given by the plaintiff to the defendant at his request, whereby F. N. was enabled to receive, and did accor- dingly receive divers large sums before then due to him, and being so indebted the defendant promised, &c, There was also the general money counts, ar.d for work and labour. The defendant pleaded the general issue. At the trial, before Lovd Kcnyon Ch. J. the agreement in writing was proved, whereby the defendant " undertook to pay to the plaintiff on the day upon which any money should be received by F. N. or by him (the defendant) on his behalf, through the means of the plaintiff's information, the sum of 10/. per cent, on the money which should be so received." It was also proved, that in consequence of in- formation given by the plaintiff to the defendant, F. N. had obtained 500/. stock, which had stood in the name of A. N., from whom the defendant de- rived title as residuary legatee ; and evidence was adduced for the purpose of showing, that he had afterwards received ten years' dividends due thereon. It was objected by the defendant's counsel that it was stock, and not mon- ey, which had been obtained through the medium of the plaintiff's informa- tion, and therefore he was not entitled to recover any thing under the terms of the agreement ; and that the dividends were merely consequential to the stock : and it was not the meaning of the parties that 10/. per cent, should be paid upon all the interest which might accrue, but merely for the principal sum, if any. Lord Kcnyon admitted the objection, r and nonsuited the plaintiff. A motion was afterwards made to set aside the nonsuit, upon the ground that the proof sustained the agreement ; for stock was to be estimated as so much money, into which it was convertible ; and that at any rate the receipt of the dividends, due at the time of the transfer of the stock, was a receipt of so much money within the meaning of the agreement. But the Court thought the ob- jection well founded \ and animadverted upon the immorality of such bargains as the one in question, which had grown of late into practice. So, where services are performed voluntarily, and not with any view of im* mediate reward, but merely in expectation of a legacy ; and the *person for whom they are done dies without leaving such expected legacy, no action will ♦263 *204 Chap. 3.] Of Contracts for Services and Works. 263 lie against the executor or administrator for a recompence for such services.(125) Thus, in the case of Osborne v. the Governors of Guifs Hospital, (b) which was an action of indebitatus assumpsit for work and labour in transacting Mr. Guy's stock affairs in the year 1720. It appeared that the plaintiff was no bro- ker but a friend ; and it looked strongly, as if he did not expect to be paid, but to be considered for it in his will. And the Chief Justice directed the jury, " that if that was the case, they could not find for the plaintiff, though nothing was given him by the will ; for they should consider how it was understood by the parties at the time of doing the business ; and a man who expects to be made amends by a legacy, cannot afterwards resort to his action." So, in the case of Hiccox v. Proud, (c) which was an action of assumpsit on an apothecary's bill for medicines and attendance. It appeared that the plain- tiff had never made any regular entries in his books, but had attended the tes- tator in expectation of a legacy, he being related to him ; and that he had declared, that had the testator left him any thing, he would never have made a charge. The plaintiff* was nonsuited on the principle laid down in the last case. But in the case of Le Sage v. Cousmaker and others, executors, (d) which was an action of assumpsit for work and labour, the case was as follows : The defendants weie the executors of one Vanveyhever. The plaintiff was a stock- broker, and in the life-time of the testator, had transacted all his money concerns to a considerable extent ; it was also given in evidence, that he had been em- ployed by the testator in several matters, such as keeping his books, transla- ting his letters, ) which was an action of indebitatus assumpsit for money had and received. It appeared, the plaintiff had assigned his ship to the defendant as a security for the repayment of *money ; but on the register it appeared to be an absolute assignment : And the defendant afterwards sold the ship, and told the plaintiff that he had received the purchase-money, and would account to him for the balance of the proceeds of the sale : the Court held, that the (s) 5 Bur. 2599. Et vide 1 East Rep. 1. (r) Andrew v. Robinson, 3 Campb. 199. (I) Leery v. Goodson, 4 Term Rep. 687. (to) 8 Taunt. 688. (u) Pickard v. Bankes, 13 East Rep. 20. *275 *276 276 On Premises To Pay Over Money [Part II. plaintiff was entitled to recover such balance in this form of action, and that the acknowledgment was sufficient to support the action. So, where a person receives goods, &c. the property of another, and con- verts them into money, an action of indebitatus assumpsit (in some cases) will lie, to recover the money so raised, &c. Thus, in the case of Longchamp v. Kenny, {x) which was an action of indebitatus assumpsit for money had and received, &c. The facts were as follow : The plaintiff was a waiter at one of the great subscription houses, or clubs, in St. James's Street, of which the de- fendant was master. Each of them had received from Mrs. Cornells a num- ber of masquerade tickets to dispose of, for which they were to account after the masquerade, by paying the value, or returning the tickets. Kenny had got possession of one of the tickets which had been delivered to Longchamp, and when Mrs. Cornells agent came to demand an account of Longchamp's tick- ets, he was told by Longchamp, that Kenny had had one of them, and he must pay for it. Upon this the agent went and made a demand on Kenny, who said, " well, if I had it, what then ? Go to the person who received it of you, and let him pay you." Longchamp was then threatened with an arrest, on which he paid five guineas (the value of the ticket) to Mrs. Cornells agent, and then brought this action against Kenny. At the trial, the plaintiff obtained a ver- dict of five guineas ; but a question was reserved for the opinion of the Court of King's Bench, whether the action should have been trover or assumpsit ? The court determined that assumpsit was the proper form of action. And Lord Mansfield Ch. J. said: "It is certain that where the demand is for a specific thing, an action cannot be maintained in this form. Great benefit arises from a liberal extension of the action for money had and received ; because the charge and defence in this kind of action, are both governed by the true equity and conscience of the case. But it must not be carried beyond its proper limits. The plaintiff must never be permitted to turn the generality of the count into a surprise upon the defendant, by deserting the ground which the defendant was led to judge the only matter to be tried, and resorting to another of which he could not have the least suspicion. If the present action had been brought without notice of the nature of the demand, I should have thought it could not have been supported. But here the defendant came prepared. If he sold the ticket, and received the value of it, it was for the plaintiff's use, because the ticket was his. Now, as the defendant has not produced the ticket, it is a fair presumption that he has sold it." *So, in the case of Norris v. Napper,{y) which was also an action of indebitatus assumpsit, for money had and received. The facts proved at the trial were, that the plaintiff was a soldier in Lord Arrays regiment of horse, in the defen- dant's troop ; the regiment being commanded for Holland, the plaintiff and hi* horse were shipped on board a transport, and in their passage met with such a storm, that by the working of the ship the plaintiff's horse was killed ; that sever- (i) Doug. 137. (j/) Ld. Raym. 1007. •277 " Chap. 4.] Had and Received to the Use of Another. 27? al other horses were lost in the same storm ; and the queen made an allowance of 15/. per horse, for every horse that was lost, to remount the troopers, which was paid by the queen to Lord Arran, for all the horses that were lost, and by him laid out in buying horses ; fifteen of which horses were sent to the defen- dant to supply the loss in his troop, but before these horses came over the plain* tiff was broke, and so was never remounted ; that when the plaintiff came into the troop he brought in his own horse. Holt Ch. J. held, that this evidence main- tained the action ; for though the captain, the defendant, did not actually receive the 15/. in money, yet he received a satisfaction which was money's worth, and the plaintiff cannot bring trover for the horse because he cannot claim any one of the fifteen horses in particular, none having been ever delivered to him. But the reporter adds, that at the counsel's request it was made a case for his fur- ther consideration ; and it does not appear whether it was ever finally deter- mined. So, in Abbotts v. Barry, (z) where the defendant having fraudulently induc- ed the plaintiff to sell goods to A. who could not pay for them ; and, on the nominal re-sale of these goods by A. in which the defendant was really con- cerned, having himself obtained the money paid on such re-sale : it was held that the plaintiff might, in an action for money had and received, recover from the defendant the value of the goods unpaid for by A. So, in the case of 6?/y«bart. v. Baker, (a) where it appeared, that the plaintiff and the defendant having each lodged their respective India bonds with the same bankers, who afterwards privily, and without the defendant's authority, sold his bonds ; and upon his demand of them, delivered up to him the India bonds of the plaintiff to the same total amount, and payable to the same obligee (he* being always the treasurer of the company, who indorses such bonds in blank before they are cir- culated), but having different numbers, and for different separate sums, and therefore manifestly distinguishable from his own bonds ; though the defendant did not know that they were the property of another, but was told by the bankers that they had exchanged his original bonds for these : the Court determined, that the defendant having sold the plaintiff's bonds, so received from his own agents, who had acted mala fide in passing them to him, was liable to answer over *to the plaintiffs for the amount, in an action of assumpsit for money had and received to their use. 3. OF MONEY OR A DEBT DUE FROM ONE PERSON TO ANOTHER, WHICH, BY AGREEMENT, IS EITHER DIRECTED OR APPROPRIATED TO BE PAID OVER TO A THIRD PERSON : IN WHAT CASES IT SHALL BE DEEMED AS SO MUCH MONEV HAD AND RECEIVED TO THE USE OF THAT PERSON. It is a general ruleof law, that choses in action are not assignable : and there- fore where a person, entitled to money due from another, assigns over his interest (z) 2 Brod. & Bing. 369. (a) 13 EaBt Rep. 609. 35 *273 278 On Promise to Pmj Over Money [Part 11. in it to a third person, or orders it to be paid to him, the mere act of assingment or order does not entitle the assignee to maintain an action for it: for the debt, or may refuse his assent ; he may have an account against the assignor, and wish to have his set-off. And accordingly in the case of Criffordv. Berry, (b) where A., to whom wages were due from the East India Company, authorised the defendant to receive the same, and pay them over to the plaintiff, to whom he was indebted : and the plaintiff brought an action of indebitatus assumpsit against B., the defendant, for the amount. But Holt Ch. J. said, " that the action could not be maintained by the plaintiff;" and directed him to be non- suited. But if there be an assent or promise on the part of the debtor or holder of the money, in that case it has been holden,(c') that the action of indebitatus assumpsit for money* had and received is maintainable. So, in the case of Ward v. Evans,{d) which was an action of indebitatus assumpsit for 60/. received by the defendant to the use of the plaintiff. The facts were as follow: one Fellows, a merchant, who kept his cash with the defendant Sir Stephen Evans, a goldsmith, in Lojnbard Street, was indebted to the plaintiff in 60/. 10.?. the plaintiff sent his servant to receive the money of Fellows, who ordered his servant to pay Ward's man the money at Sir Stephen Evans's. Accordingly both the servants went to Sir Stephen Evans's shop, and there Fellows's servant directed the defendant's servant, to pay Ward's servant the 60/. 10s. and to in- dorse it on a note of 100/. from the defendant to Fellows, in part of payment of the 100/. The defendant's servant accordingly indorses 60/. 10s. as paid on the said note of 100/. and then paid 10s. to Ward's servant, and gave him a note subscribed by one Wallis a goldsmith, for 60/. payable to one Freeman or bearer, which the plaintiff's servant accepted. This transaction was about noon, and at that time Wallis was a solvent person, and continued paying his bills till night. Next morning *the plaintiff's servant coming with the note to receve the 60/. of Wallis, found that Wallis had stopped payment, and was become insolvent. Whereupon the plaintiff brought this action against the defendant for the 60/. note : it did not appear upon the evidence that the plain- tiff was conusant of, or privy to this transaction of his servant, or had given him any authority to receive a note instead of money, or approved of it after- wards. And Holt Ch. J. said : " I am of opinion that an indebitatus assumpsit for monies received to the plaintiff's use lies properly in this case, and that this evidence is sufficient to maintain the plaintiff's declaration. For when the 60/. was indorsed on Fellows's bill, as so much actually paid by Sir Stephen Evans to Fellows, Fellows directing that sum to be paid to the plaintiff, and the defendant having the money in his hands, it amounts to a receipt of so much by the defendant to the plaintiff's use. No doubt the action were maintainable if (fc) 241. But see Fenner v. (c) Per Lord Ellmberai°:h.4 Esp. Rep. 204. M- ■'. Bl. 1269. centra. This case, (d) 2 Ld. Ravin. U2S. 6 Mod. 36. 1 Salk. however, is doubted in 1 East Rep. 104. Per 442. & Holt, 120. S. C. Lord Keiiyen. •279 Chap. 4.] Had and Received to the Use of Another. 27$ the plaintiff* had brought the note back again to the defendant, and though he did not, since it does not amount to actual payment, the plaintiff must recover." And Powel Just, said, " The delivery and acceptance of Wallis's note is no payment, for when a master sends his servant to receive money, he cannot ac- cept a note in lieu of it. Perhaps, if the master had been there himself, he would have refused the note, as knowing the insufficiency of Wallis ; and shall the servant oblige him to take such a note by his acceptance without his mas- ter's directions ? Indeed if the master consents to it afterwards, that amounts to a previous command." Judgment for the plaintiff, per totam curiam. So, in the case of Israel v. Douglas and another, (e) which was also an action of indebitatus assumpsit for money had and received. The material facts of this case were as follow : the defendants who were partners, were indebted to one Delvalle, a broker, in 64/. 9s. for brokerage, and Delcalle was indebted to the plaintiff in 40/. on a promissory note. Delvalle afterwards applied to the plain- tiff, to lend him a further sum, which the plaintiff refused to advance without security ; whereupon Delvalle gave him an order on the defendants for the sum in which they were indebted to him (Delvalle) for brokerage. This order was sent by the plaintiff to the defendants in November 1787, with a request that they would acknowledge their having given him credit for it. The defendant Douglas answered, that they would pay the money which they owed to Delvalle, to no other person but the plaintiff, but objected to the amount of the sum contained in the order, which they desired to have rectified. Another order was then sent to them, which Douglas again objected to, promising at the same time to pay the plaintiff, what they really owed to *Delvalle, and requesting an order to pay or give credit to the plaintiff, for so much in their hands, as was in fact due to Delvalle. An order in this form was accordingly sent them, which they accepted ; in consequence of which, the plaintiff advanced 70/. to Delvalle, who afterwards becoming a bankrupt, the defendant refused to pay the m oney to the plaintiff according to the order. On which refusal this action was brought ; and at the trial, the plaintiff obtained a verdict ; against which a rule was obtained to show cause, why it should not be set aside, and a new trial granted. But, after argument, all the judges of the court of Common Pleas (except Mr. Justice Wilson) were of opinion, that the evidence supported the count for money had and received. And Lord Loughborough Ch. J. said, " It has been contended, that the money was in point of fact owing by the defendants to Delvalle, that their undertaking was to him, that in re- ality no money was had and received by (hem to the use of the plaintiff". But Delvalle had paid for premiums on account of the defendants, which created a debt from them, and which he might have set off" against any similar demand of theirs against him. This debt is, with the consent of the parlies, assigned to the plaintiff. Douglas has due notice of it, and assents ; by which assent he becomes, with his partner, liable to the plaintiff*. He (e) 1H.B1. 239.2 Sir W. Bl. Rep. 1269. case is questioned. See also 1 East Rep. But see the case of Taylor v. Higgins, 3 104. East Rep. 171. where the authority of this * 280 280 On Promises To Pay Over Money [Part II. makes no objection to an order from Delvalle to pay his money to the plaintiff, but only to the amount of the sum paid. He insists that the -whole de- manded by Delvalle was not due, and therefore requires a looser order, on the faith that he would pay the balance : on his failure to pay, his promise attach- ed, so as to make the defendants liable to an action. Then the question is, whether when Israel brings an action in his own name against the defendants, this shall not be considered as money had and received by them to his own use 1 Now when Douglas had admitted the money to be due, he was that mo- ment estopped, as it were, from saying that it was not due. I also think the ac- tion might be maintained on the account stated : Delvalle gives an order to pay to the plaintiff a liquidated balance ; the only dispute is concerning the amount of that balance. Douglas says, " I will pay you according to the sum which shall appear to be due." He is here again estopped from denying the effect of his promise. lam therefore of opinion that the verdict is right, and ought not to be set aside." And Gould Just, said " This case is like that of a man having money due to me in his hands, which I order him to pay to another. Now if I pay money to you for another person, it is money had and received by you to his use. But where is the real and substantial justice, whether I in fact pay money to you for a third person, or whether I give you an order to pay so much money, to which you expressly assent? In reason and sound law, it is money had and received to the use of such third person. If my debtor tenders me money, which I *give back to him, and tell him to pay to another, he then in point of fact receives money to the use of the other. But is there any real difference, between such a case and the present ? As to the account stated, I think that count also, all the circumstances consi- dered, comes within the fair compass of the case ; but I have not the least doubt as to the count for money had and received." But Wilson J. contra, said, " It is highly necessary that the forms of actions should be kept distinct : courts of justice have, in my opinion, already gone quite far enough, in extend- ing the favourite count, for money had and received. But I know of no case where they have gone so far as to allow that count to be maintained where no money has in fact been received by the defendant. Here it by no means ap- pears that money was had or received by the defendants. I am also of opinion that this demand between the parties, being for brokerage, was from the nature of it, the subject of an action for work and labour. Now though it be true, that where a man is my debtor, he holds my money, yet I cannot accede to this as a general proposition, that whenever a man is my debtor, I am entitled to bring an action against him for money had L and received. A tailor might, according to this rule, bring an action for money had and received against a man who had not paid him for a suit of clothes. For my idea is, that where no money has been actually had and received, no action for money had and received can be supported. In the case of Feiintr v. Mcares, (g) money was (g) Vide ante, note b. *381 Chap. 4.] Had and Received to the Use of Another, 281 in fact received by the defendants ; there the action might clearly be maintain- ed. So here it would have been proper, if it could be shown, that that money was received by Douglas to the use of Delvallc." In the case of Fenner v. Meares, just referred to, it was determined, that this form of action lies by the assignee of a respondentia bond against the obligor, where the latter, by an indorsement made thereon engaged to pay the same to any assignee. So, in the case of Arden v. Rowney,{h) where a check had been drawn by one Alder upon the defendant ; and before the plaintiff would give cash for it, he sent his clerk to the defendant, and asked him if the draft was a good one ? He said that it would be honoured, as he was in Alder's debt 2001. ; the clerk then observed, that the check was postdated, and could not therefore be recov- ered ; the defendant said, that that did not signify, it would be of service to the poor man, and it should be paid. Lord Ellenborough Ch. J. before whom the cause was tried, ruled that this was an appropriation of 100/. part of the money which the defendant said he owed to Alder, amounting to 200/. and that the plaintiff might recover to that amount ; upon which it was suggested by the defendant's counsel, that if it was to be taken that the *plaintifTs right to recover was on the ground of the appropriation of the money in the defen- dant's hands, the plaintiff's right could not go beyond the money actually due by Rowney to Alder, and that, in fact, his saying there was 200/. in his hands was a mistake, and that he should show it was a small sum only. To which suggestion his lordship assented ; and evidence was produced to show the real state of the accounts, which was proved to be a balance of 80/. and for which sum the plaintiff had a verdict. 4. OF MONEY RECEIVED AND PAID BY BANKERS AND OTHERS UPON OR IN RESPECT OF BILLS OF EXCHANGE, PROMISSORY NOTES, CHECKS, OR OTHER SECURITIES : AND IN WHAT CASES SUCH MONEY IS RECOVERABLE IN THIS FORM OF ACTION. An action of indebitatus assumpsit lies for money had and received by the bona fide bearer of a note, payable to bearer, against the maker. Thus in the case of Grant v. Vaughan, (i) in which the plaintiff declared first, upon an inland bill of exchange ; and secondly, upon an indebitatus assumpsit for money had and received. The facts were as follow : the defendant, a merchant in London, gave a cash note upon his banker, to one Bichnell, a ship's husband, which note was dated, " London, 22d October, 1703," and directed to Sir Charles Asgill, with this request, " Pay to ship Fortune or bearer, so much ;" Bicknell by some accident lost this note. The person who found it, or who at least was in possession of it, (however he might have obtained that possession) came four days after the note was payable in London, to the shop of the plaintiff, who was a tradesman at Portsmouth, and bought five pounds' worth of tea of him, and gave him this note in payment, desiring to have the change out of it ; (h) 5 Esp. Rep. 251. (>) 3 Bur. 1516. *282 282 On Promises to Pay Over Money [Part II. the plaintiff stepped out to make enquiry who the defendant might be ; and up- on being informed that he was a very- good man, and that it was his hand- writing, he readily gave the change out of the note, retaining the price of the tea. The defendant, upon being apprized that Bicknell had lost the note, sent notice to Sir Charles Asgill " not to pay it," and he refused accordingly ; whereupon Grant brought the present action. And the court of King's Bench determined, that the plaintiff was entitled to recover upon the count for money had and received. Lord Mansfield Ch. J. said, upon the second count, the present case is quite clear beyond all dispute. For undoubtedly, an action for money had and received to the plaintiff's use, may be brought by the bona fide bearer of a note made payable to bearer. There is no case to the contrary. It was certainly money received for the use of *the original advancer of it ; and if so, it is for the use of the person, who has the note as bearer. In this case, Bicknell himself might "undoubtedly have brought this action : he lost it, and it came bona fide, and in the course of trade, into the hands of the present plaintiff, who paid a full and fair consideration for it. Bicknell and the plain- tiff are both innocent. The law is to determine which of them is to stand to the loss ; and by law, it falls upon Bicknell." So, money paid into a banking house for the purpose of taking up a par- ticular bill, which was lying there for payment ; though the banker's clerk said at the time that he could not give up the bill till he had seen his master ; was held to be money had and received to the use of the then owner and holder of the bill, and could not be applied by the bankers to the general account of the acceptor who paid in the money. Thus, in the case of De Bcrnales v. Fuller, (k) where it appeared, that Puller had accepted a bill for 894/. 16s. 9d. paya- ble at Fullers' 1 banking-house, of which bill the plaintiff Be Bcmalcs became the holder, and sent it to his bankers, the Newnhams, to receive payment when due. By exchange of bills amongst the bankers, the bill in question was lodg- ed by Newnhams with the Fullers, as the banking house where it was made pay- able. When the bill became due, Puller's clerk wept to Fullers, and told their clerk whom he saw there, that he had brought the money to take up the bill, and he laid the money down upon the counter and demanded the bill. Fullers' clerk took up the money and kept it, but did not deliver up the bill, saying that he would first speak to Fuller ; and the bill was not delivered up nor the money received by Newnhams (or De Bernales. (There being, it seemed, some account between Puller the acceptor, and Fullers the bankers, which gave the latter, as they supposed, a lien upon this money.) Whereupon De Bernales, the owner of the bill, brought this action against the Fullers for money had and received to his use ; considering the money as having been paid to and received by them for the use of the holder of the bill, whoever he might be, at the time when it became due. But at the trial, before Lord Ellenborovgh Ch. J. at Guildhall, his lordship thought that there was no privity proved between De Bernales and (k) 14 East Rep. 590. n. a. >283 Chap. 4.] Had and Received to the Use of Another- 283 the Fullers, so as to sustain this action ; considering that the evidence did not establish a receipt of this money for the intended purpose for which it was di- rected to be paid in, namely, to take up the bill; but rather a waiver of receiv- ing the money for that purpose by the defendant's clerk, and a determination of the defendants to hold it for their own use ; which made them wrongdoers ; and therefore that the action should rather have been trover. And under this direction there was a verdict for the defendants. But afterwards a new trial was moved for, on the part of the plaintiff, or leave *to enter a nonsuit. And the Court, after much discussion, made the rule absolute for a new trial ; con- sidering, as it appeared that the money having been expressly paid into the defendant's house for the specific purpose, declared at the time of taking up this bill ; and that purpose not having been directly repudiated till afterwards, it must be taken to have been received at the time for the use of the holder of the bill. But in the case of Williams v. Everett, (I) which was an action for money had and received, brought by the plaintiff to recover 300/., being part of the amount of a bill of 1126/. 2.?. remitted by one James Kelly from the Cape of Good Hope to the defendant's house, in a letter dated Cape Town, 8th July, 1809; m which Kelly says, " I remit you by the Warley 1126/. 2s., which I particularly request you will order to be paid to the following persons, who will produce their letters of advice from me on the subject," &c. Amongst the per- sons, he named the plaintiff Williams, (Wine merchant, Gracechurch Street,) for 300/. And he afterwards made another remittance for 500/. on the same terms. And then he adds, " I desire the amounts paid each person to be put on the back of their respective bills, &c. And that every bill paid off be can- celled." Williams by his attorney, long before the bills became due, gave the defendant Everett notice of a letter he had received from Kelly, ordering his debt of 300/. to be paid out of that remittance, and offered him an indemnity of a banking house if he would hand over the bill to him ; but Everett refused to indorse the bill away, or to act upon the letter ; admitting, however, that he had received the letter directing the application of the money in the manner al- ready stated. The question at the trial was, whether the plaintiff was entitled to receive from the defendants the amount of his demand on Kelly for 300/. out of the bill for 1126/. 2s. which was admitted to have been received by the de- fendants when it became due. The Court determined that the action could not be maintained. And Ld. Ellenborough Ch. J. in delivering the judgment of the Court said, " A point has been discussed in argument, which did not arise in this case at nisi prius ; namely, on the effect of a foreign attach- ment laid on the money in the hands of the defendants ; but as the nonsuit was pronounced independently of any such evidence, and before any proof of the foreign attachment was given or tendered, it is fit to consider the propriety of the nonsuit, without reference to such circumstance; it being our opinion, (0 14 East Rep. 582. - *284 284 On Promises To Pay Over Money [Part II. independently of that circumstance, that the nonsuit was right. The question which lias been argued before us is, whether the defendants, by receiving this bill, did not accede to the purposes for which it was professedly remitted to them by Kelly, and bind themselves so to apply it ; and whether, therefore, the amount of such bill paid to them when due, did not instantly become, by operation *oflaw, money had and received to the use of the several persons mentioned in Kelly's letter, as the creditors in satisfaction of whose bills it was to be appli- ed, and of course, as to 300Z. of it, money had and received to the use of the plaintiff. It will be observed, that there is no assent on the part of the defen- dants to hold this money for the purposes mentioned in the letter ; but, on the contrary, an express refusal to the creditor so to do. If, in order to constitute a privity between the plaintiff and defendant as to the subject of this demand, an assent express or implied be necessary, the assent can in this case be only an implied one, and that too implied against the express dissent of the parties to be charged. By the act of receiving the bill, the defendants agree to hold it till paid, and its contents when paid, for the use of the remitter. It is entire to the remitter to give, and countermand, his own directions respecting the bill as often as ho pleases, and the persons to whom the bill is remitted may still hold the bill till received, and its amount when received, for the use of the remitter himself, until, by some engagement entered into by themselves with the person who is the object of the remittance, they have precluded themselves from so do- ing, and have appropriated the remittance to the use of such person. After such a circumstance, they cannot retract the consent they may have once given, but are bound to hold it for the use of the appointee. If it be money had and re- ceived for the use of the plaintiff under the orders which accompanied the remit- tance, it occurs as fit to be asked, when did it become so? It could not be so before the money was received on the bill becoming due : and at that instant, suppose the defendants had been robbed of the cash or notes in which the bill in question had been paid, or they had been burnt or lost by accident, who would have borne the loss thus occasioned ? Surely the remitter Kelly, and not the plaintiff and his other creditors, in whose favour he had directed the application of the money according to their several proportions to be made. This appears to us to decide the question ; for in all cases of specific property lost in the hands of an agent, where the agent is not himself responsible for the cause of the loss, the liability to bear the loss is the test and consequence of being the proprietor, as the principal of such agent. The case of De Bernales v. Fuller & Co., which has been urged in argument on the part of the plaintiff, is clearly distin- guishable from the present by this circumstance, that the defendants in that case, i. e. Fuller and Co., had antecedently received the bill, which was to be paid at their house, from Neumham and Co. the bankers of the plaintiff De Bernales, the holder, for the very purpose of receiving payment for them, the Newnhams, of such bill ; and having taken the bill for this purpose, the Court thought that *285 Chap. 1. J Had and Received to the Use of Another. 286 Fuller and Co. could not by themselves or their clerk renounce this purpose, but must apply the money brought by Puller's clerk specifically for the dis- charge # ofthat bill then lying at their house, to that very purpose and no other ; and that they were in effect to be regarded in that case as the plaintiff De Ber- nales' agents, through the intervention of Newnhams'' house, for the purpose of that receipt, and could therefore hold and apply it to no other. Here no agen- cy for the plaintiff ever commenced, but was repudiated by the defendants in the first instance. We are of opinion, therefore, that upon no principle of law can the defendants be said to stand in such privity in respect to the plaintiff, as that the 300.'. claimed by this action can be said to have been money had and re- ceived to the plaintiff's use. So, in the case of Yates v. Bell,(m) where a bill of exchange, payable at the house of A. had been there presented for payment and dishonoured ; and the ac- ceptor afterwards remitted to A. a sum of money for the purpose of enabling him to pay the dishonoured bill, and also another of less value; and A. in an- swer stated the fact of the bill having been dishonoured, but added, that the money received should be carried to the acceptor's account, and did afterwards pay the smaller bill. It was holden, that the holder of the original bill could not maintain an action against A., there being no privity between them. And Abbott Ch. J. said, " This case cannot, in principle, be distinguished from Wil- liams v. Everett, and that case was properly decided. In De Bernalesv. Fuller, the defendant was agent of De Bernales when he received the money, and nev- er would have received it but for that character, and after that he could not re- pudiate that agency. That is the distinction between the two cases. Where a party, to whom a bill is remitted, repudiates the trust with which the bill is clothed, that may give to the person remitting the bill, a right to bring trover for it; but it does not give any right of action to the person to whose account the bill is directed to be applied ; and unless some agreement had taken place re- specting the bill between the defendants and the plaintiffs, the former could on- ly be considered as holding the bill for the use of the acceptor." So in the case oiKilsby v. Williams, (n) where the plaintiff paid into his own bankers, a cheque of 250/. drawn upon them by a third person, which they re- ceived without any objection ; and in the course of the same day the drawer of the cheque paid in a sum of money, part of which he particularly appropriated, leaving a balance unappropriated of 237Z. The bankers who were then credit- ors of the drawers to a large amount, wrote on the next morning to the plaintiff stating, that the cheque was not paid, but that they would keep it in the hope of there being money to pay it ; and on that day a further unappropriated balance was paid in, making altogether a sum exceeding the plaintiff's cheque. It was determined that under these circumstances, the *plaintiff might maintain money had and received against the bankers ; and that the latter, being his agents for receipt of the money, could not appropriate the balance to the payment either (m) 3 Barn. & Aid. 643. (n) 5 Barn. & Aid. 815. 3tJ *286 *287 287 On Promises To Pay Over Money [Part II. of their own general account against the drawer, or of two cheques presented on the same day, but subsequently to that of the plaintiff, and paid by them. So, in the case of Pierson v. Dunlop and others, (o) where it was determin- ed, that if the indorsee of a bill of exchange who has received a navy bill as- signed to the drawee, as a security to him (thfi indorsee) till the bill of ex- change is accepted, deposit such navy bill with the drawee, and the drawee re- ceives the money upon it, he is answerable for the amount in an action for money had and received to the use of the indorsee, though he may have done nothing that amounts to an acceptance of the bill of exchange. So, in the case of Whitfield v. Savage, (p) which was also an action of in- debitatus assumpsit for money had and received. The circumstances of the case were as follow : A person of the name of Dibdin being in want of 50/. applied to the plaintiff for the loan of that sum, who gave him a bill foi 55/. 6s. drawn by himself upon one Thornton, and accepted by the latter. Thornton had effects of the plaintiff in his hands to the amount of the bill. Dibdin indors- ed the bill to the defendant, from whom he received the full amount, and the defendant indorsed it over to another person. The day before the bill became due, Diodin took 50/. in part payment of his debt to the plaintiff, but soon af- ter he had paid it into his hands, the plaintiff, in the presence of Dibdin, being informed that Thornton, the acceptor, was become insolvent, said " that it would be of no use for him to keep DibdirCs money as he should not like the bill to be returned upon him ;" he therefore gave to Dibdin a check on his banker for 50/. (being the sum which he had just before received of him) desiring him to take it to the defendant : Dibdin accordingly gave the check to the defendant, together with 5/. 6s. of his own, to enable him to provide for the bill, telling him that Thornton had become insolvent, and was gone off. Four days after the bill had become due, the plaintiff having learnt from the defendant, that payment of the bill had not been demanded, desired him not to pay it, as no notice had been given by the holder, of its non-payment, and at the same time, promised to indemnify the defendant against the consequences of a refusal. Soon after this, the bill was brought to the defendant, who paid it notwithstand- ing the caution he had received from the plaintiff: whereupon the latter brought this action to recover the 50/. paid to the defendant, to enable him to provide for the bill. The court of Common Pleas determined that the plaintiff was entitled to re- cover in this form of action. And Lord Eldon Ch. J. said : " With *respect to the objection, that this action for money had and received, ought to have been brought by Dibdin, instead of the present plaintiff, it appears to me, that the action is well brought, for these reasons : the night before the bill became due, the plaintiff sent the money in dispute to the defendant, it was the plaintiff therefore that advanced it. It is tiue, indeed, that Dibdin being the person lia- ble in conscience before either the plaintiff or defendant, had previously put 50/. (o) Cowp. 571. (p) 2 Bos. & Pul. 277, *288 Chap. 4.] Had and Received to the Use of Another. 288 into the plaintiff's hands ; but as the money in dispute was actually sent by the plaintiff to the defendant, the former had a right to call upon the latter to restore it to him. As between the plaintiff and defendant the money may be considered as advanced by the plaintiff: and in what manner the plaintiff and Dibdin might settle between themselves, does not concern this defendant. I should think, as having actually advanced it, he had a right to recover it, even if, after the recovery, he held it as a trustee for Dibdin. In contemplation of law, the plaintiff has lost the value of his effects in the hands of the acceptor ; and it is on that principle that notice of non-payment is required. In contem- plation of law, he must ultimately have been the loser by the failure of the ac- ceptor. He therefore deposited the money with the defendant to answer the bill if duly demanded. But when the holder was no longer entitled to enforce payment of the bill, the money so deposited must be considered as remaining in the defendant's hands, for the use of the plaintiff, and the defendant having t aken upon himself to dispose of that money in payment of the bill, after no- tice to abstain from so doing, and after an offer of indemnity, is in law liable to answer to the plaintiff for the amount." But a mere promise by a debtor to his creditor, that if he would draw a bill upon him, at a certain date for the amount of his demand, he should then have the money, and would pay it, does not amount in law to an acceptance of the bill when drawn: and an indorsee for a taluable consideration, between whom and the drawee no communication passed at the time of his taking the bill, can neither recover upon the count as for an acceptance of the bill, nor on the gen- eral counts as for money had and received, &c.(y) So, where the drawee of a bill of exchange, upon its being presented to him by the indorsee, accepted the bill, and said, that he expected a remittance from the drawer in a few days, and that as he had a bill of the drawer in his hands which would be paid, he would take all risks ; these circumstances do not amount to sufficient evidence to entitle the indorsee to recover against the drawee the amount of the bill on a count for money had and received, after fail- ing to establish by evidence the special count upon the bUl.(r) So, in the case of Stewart v. Fry,(s) where A. accepts a bill, made *paya- ble at the house of the defendants, and which is indorsed to the plaintiffs, who discount it. The bill is presented to the defendants, when due, and dishonour- ed : two days afterwards the money to take up the bill is remitted to the defen- dants, and they are requested to follow it in whosesoever hands it may be ; they tender the money to the plaintiffs, who had sent back the bill the day before to the drawers. In the meantime, the defendants received an order from a house (to which the letter inclosing the remittance referred them for advice) to hold the money to the credit of that house, as they had by the desire of A. ; the accep- tor, advanced him to the amount of the money then in the defendants' hands for the purpose of taking up the bill. It was holden, that this was a sufficient (q) Johnson v. Collings, 1 East Rep. 98. (s) Holt Ni. Pri, 372. 1 Mo. 372. S. C. (r) Whitwell v. Bennttl, 3 Bos. & Pul. 559. *289 289 On Promises To Pay Over Money [Part II. countermand of the money on the part of A., and that the defendants were not liable to an action for money had and received, brought by the plaintiffs on their again getting back the bill into their possession. If A., pays money into a banker's for a specific purpose, and the banker's clerk, by mistake, pays this money to B., who has no right to it; A. cannot maintain an action against B. to recover it back. Thus, in the case of Rogers v. Kelly,(l) which was an action for money had and received to recover the sum of 130/. under the following circumstances: the plainiff having indorsed a bill drawn by one L. C. for 130/. payable at Messrs. Austin and Co. and finding that it would not be honoured by the acceptor, paid in this sum of money to the bankers for the purpose of retiring it. The defendant held another bill of ex- change for the same sum, accepted by the. same person, due the same day, and payable at the same place. The latter bill being presented for payment first, and no funds being provided to pay it, the banker's clerk, by mistake, gave the defendant the 130/. paid in by the plaintiff to satisfy the bill to which he had put his name. For the plaintiff it was contended, that as the money had been paid in for a specific purpose, and as the very money paid in had been given by mistake to the defendant, it was to be considered as ear marked, and might be followed by the person to whom it really belonged : but Lord EUenborough Ch. J. said, " There is no privity between the parties to this suit. The plaintiff's claim is on the bankers, and they must seek their rem- edy against the defendant the best way they can. The plaintiff's money must still be considered as in the hands of the bankers ; his account with them is the same as if this mistake had not been committed." If a person discounts bills with a banker, and receives, in part of the dis- count, other bills not indorsed by the banker; and which bills turnout to be bad, the banker is not liable. Thus, in the case of Fydell v. Clark,(u) which was an action for money had and received : the *plaintiff had employed his brother Richard Fydell to discount certain promissory notes to the amount of 8000/. with the defendants, who were bankers, and they gave, in lieu of money, other notes and bills, but which they did not indorse, it not being their practice to in- dorse bills so given. Part of them, viz. to the amount of 4300/. turned out to be bad ; and the present action was brought to recover this sum. But Lord Kenyo7i Ch. J., before whom the cause was tried, said, " If, in the discount, Richard Fydell took the bills and notes in question in lieu of money, he must be bound by it ; for the bankers parted with them, supposing them to be good, and he took them under the same impression. Having taken them without indorsement, he has taken the risk on himself. They were the holders of the bills, and by not indorsing them, have refused to pledge their credit to their validity ; and Richard Fydell must be taken to have received them on their own credit only." His Lordship concluded with observing, therefore, that the action could not be supported. So, where A., residing, at X., employs B., residing at Y., to procure payment (') 2 Camph. 123. (v) 1 Esp. Rep. 447. •290 1 Chap. 4.] Had and Received to the Use of Jlnother. £90 of a bill there, and to remit the produce directed to him at X., and E. receives payment of the bill, but remits the product, to ^ Z. fur A.'s use, whereby the whole gets into the- ha. ds of A.'s creditors. A. cannot maintain an action for money had and received against B. to recover the amount of the sum received inpayment of the bill.(u) So, in an action for money had and received by the holder of a bill of ex- change against a person who has received a sum of money from the acceptor to satisfy it, any defence may be set up which would have been available, if the action had been brought against the acceptor himself, (w) So, where a sum of money has been lodged with a party to indemnify him against bills of exchange which he has accepted for the accommodation of another, an action will not lie against him to recover the money while the bills are outstanding, although the statute of limitations has run upon them, (a?) 5. OF MONEY RECEIVED ON BANKERS' CHECKS, BILLS OF EXCHANGE, PROMISSORY NOTES, OR OTHER SECURITIES EITHER POST DATED, OR WITH FICTITIOUS OR FORGED NAMES THEREON. 1. Of Post Dated Checks, &c] — If a post dated check, upon being pre- sented, is paid for the honor of the drawer, in expectation of deceiving funds from him : but the holder knowing that the drawer, at the time of presenting the check, was insolvent, and that it was post dated, and therefore void, he is liable to refund the money so paid, in an action of indebitatus assumpsit for money had and received. Thus, in the case of Martin v. Morgan, (y) which was an action for money had and received under the following circumstances : the defendant had had accommodation-bill transactions with the firm of Burmester &l Co., and in the course of these transactions, a check on the plaintiffs for 995/. \5s. Id. was given by Burmester and Co. to the defendants on the 9th of February, post dated for the 19th, to meet a bill falling due on that day. The defendants finding that Burmester and Co. were in bad circumstances, pressed them for 400/., and threatened to present the check unless they received that sum. Burmester and Co. desired the defendants not to do this, telling them that they had no funds in the plaintiff's hands to meet such a demand. Burmester, in company with one of the defendants, then went to Minet for assistance ; and Minet, after inspecting the books of Burmester and Co., told the defen- dants that Burmester and Co. were insolvent. One of the defendants then said, that he would wait till four o'clock, and unless he received 400/. Horn Burmester and Co. by that time, should present the check and expose them on 'Change. Instead of waiting till four, the defendants presented the check at a quarter after three, and obtained payment, the plaintiffs expecting to receive funds from Burmester and Co., though they had not any in their hands at the time the check was presented. At 20 minutes before four, Burmester and Co. (f) Duncan v. Skipwith, 2 Campb. 68. (x) Morse v. Williams, 3 Campb. 418. (u>) Redshaw v. Jackson, 1 Campb. 372. (y) 1 Brod. & Bing. "289. 3 Mo. 635. S. C. See also Baktr v. Birch, 3 Campb. 107. »291 291 On Promises To Pay Over Money [Part II. sent a notice to the plaintiffs not to pay any more on their account. The plaintiffs were wholly ignorant of Burmester and Co.'s insolvency, of the bill transactions between them and the defendants, and of the circumstance of the check being post dated. The Court were of opinion, that the plaintiffs were en- titled to recover the money so paid to the defendants. And Dallas Ch. J. said? "As between the bankers and the defendants, what are the facts? An illegal draft is presented : so illegal, indeed, that if the bankers had knowledge of such illegality, they would have been liable to a penalty of 100/.,(s) certainly if they had known that they would not have paid the bill ; they were therefore kept in the dark ; and by whom 1 By the very parties who now seek to retain the money so unfairly obtained. Now, is there any case in which the Court will allow a party to take advantage of his own illegal act 1 Undoubtedly the defendants have no means of meeting this objection to their claim ; but are they better entitled on the other ground ? It is urged, that the plaintiffs knew they had no funds of Burmester, and Co. ; but did they know, as the defendants did, that they would have none at four o'clock ? On the contrary, they had *every reason to expect an early remittance from Burmester and Co. The defen- dants knowing there would be no such remittance, and availing themselves of every advantage, hurry to the banking-house, and procure payment of the check. Knowing the draft to have been illegal, they cannot, in point of justice, have any claim to retain a sum obtained in such a manner." And Richardson Just, said, " The defendants knew that Burmester and Co. were in a state of probable insolvency, and concealed this from the plaintiffs, who were ignorant of it. This brings the case within the rule of law, that a party paying money in ignorance of circumstances with which the receiver is acquainted, is not on ecrual terms with him, and therefore entitled to recover it back." 2. Of Money Received on Bills, &c. with Ficticious or Forged Names thereon.] — The indorsee of a promissory note may maintain the like form of action against the maker, to recover the amount of a forged note, given in part payment. Thus, in the case of Dimsdale v. Lanchester, (a) which was an action of indebitatus assumpsit for money paid, and had and received ; and on the trial, it appeared in evidence, that the defendant having given her promisso- ry note for 63/., it was paid into the hands of the plaintiffs, who were bankers ; the payee having regularly indorsed it. The note was sent to the defendant by a notary for payment; and inpayment of it, he received in part a 10/. note, which turned out to be a forgery : and to recover the amount of which the pre- sent" action was brought. The counsel for the defendant objected, that the plaintiffs, being indorsees of the first note, ought to have declared thereon as indorsees, and given notice to the defendant to produce it upon the trial : and as the only dealing was through the medium of that note, there was no mo- ney of the plaintiffs had and received by the defendant. But Lord Ellenbo- rough Ch. J., before whom the cause was tried, said, he thought the action was maintainable ; for when a person has put his name to a promissory note, (:) Vide 55 Geo. 3. c. 184. s. 12. («) 4 Esp. Rep. 201. *292 Chap. 4.] Had and Received to the Use of Another. 292 he thereby acknowledges that he has money in his hand of the payee of the note ; and undertakes to pay it to whoever is legally entitled to receive it ; that is, to the person who shall have paid for it a good consideration, and who has thereby become the legal holder of the note. So, in the case of Tallock v. Harris, (b) which was an action at the suit of the indorsee of a bill, payable to a fictitious payee, against the acceptor, who was also one of the drawers ; the declaration contained counts for money paid, and for money had and received. It appeared upon the evidence, that the defendant was indebted to one of the indorsers, and sent him this bill, for which he was credited in account, and that the plaintiff paid that indorser the value of the bill : and upon a demurrer to the evidence, the Court of King's Bench held, that the *plaintiff was entitled to recover under the counts for money paid, and money had and received, and he had judgment according- ly. And in the case of Vere v. Lewis, (c) which was a similar action to the last, except that the defendant was not one of the drawers, and there was no evidence that he received any value for the bills ; upon which it was urged the plaintiff could not recover upon the money counts : but the Court said the ac- ceptance was evidence that he had received value from the drawers, and the plaintiff had judgment. So, in Bennett v. Farnell, (d) where it was holden, that a bill of exchange made payable to a fictitious person or his order, is neither, in effect, payable to the order of the drawer, nor to bearer, but is completely void : and therefore if money, paid by the holder of such a bill as the consideration for its being in- dorsed to him, gets into the hands of the acceptor, it may be recovered back from him in an action for money had and received. And Lord Ellcnborough Ch. J., in delivering his opinion upon the case, said, " I will admit any evi- dence of value having been received by the defendant. If Bennett's money has found its way to him, he shall not be allowed to retain it. In that case he has money drily in his hands belonging to another person ; and it may be re- covered from him as money had and received. But the bill being made paya- ble to George Abney or order, the plaintiff cannot sue upon it, either as the mere bearer, or as indorsee of Robert Abney. Where a bill is payable to the order of a particular person, an order from this person must be shown by any one who would make title to the bill." And upon this case being afterwards brought before the Court of King's Bench, Lord Ellenborough Ch. J. observed, that he conceived himself bound by Minet v. Gibson, and the other cases upon this subject which had been carried up to the House of Lords, (though by no means disposed to give them any extension,) and that if it had appeared, that the defendant knew George Abney, the payee, to be a fictitious person, he should have directed the jury to find for the plaintiff. So, where money has been paid upon a forged bill of exchange to a bona (b) 3 Term Rep. 174. See also 1 H. (d) 1 Campb. 130.; and see the several Bl. 313. & 569. cases there cited in notis. (c) 3 Term Rep. 182. *293 293 On Promises To Pay Over Money [Part II. fide holder, who had given value for it, the money cannot be recovered back from him. This point was determined in the case of Price v. Neaie,(e) where two forged bills of exchange, purporting to be drawn by Benjamin Sutton upon the plaintiff, who had effects of Sutton's in his hands, and therefore accepted them. These bills were indorsed to the defendant, and paid by the plaintiff when due. It afterwards turned out that the drawer's name had been forged, and the party hanged for the forgery. But that the defendant Neale acted in- nocently and bona fide, without the least privity or suspicion of the forgeries, and *paid the whole value of the bills. Upon the trial, however, the jury found a verdict for the plaintiff, subject to the opinion of the Court of King's Bench upon this question, — " Whether the plaintiff, under the circumstances of this case, could recover back from the defendant the money he had paid on the bills, or either of them ?" The Court were of opinion that the plaintiff was not entitled to recover back any part of the money he had so paid. And Lord Mansfield delivered his opinion as follows, "This is an action for money had and received to the plaintiff's use, in which action the plaintiff cannot recover the money unless it be against conscience in the defendant to retain it ; and great liberality is always allowed in this sort of action. But it can never be thought unconscientious in the defendant to retain this money, when he has once received it upon a bill of exchange indorsed to him for a fair and val- uable consideration, which he had bona fide paid, without the least privity or suspicion of any forgery. Here was no fraud, no wrong. It was incumbent upon the plaintiff to be satisfied that the bill drawn upon him was the drawer's hand before he accepted or paid it: but it was not incumbent upon the defen- dant to inquire into it. Here was notice given by the defendant to the plaintiff of a bill drawn upon him ; and he sends his servant to pay it and take it up. The other bill he actually accepts ; after which acceptance the defendant innocently and bona fide discounts it. The plaintiff lies by for a considerable time after he has paid these bills ; and then found out that they were forged ; and the forger comes to be hanged. He made no objection to them at the time of paying them. Whatever neglect there was, was on his own side. The defendant had actual encouragement from the plaintiff himself for negotiat- ing the second bill, from the plaintiff's having, without any scruple or hesita- tion, paid the first : and he paid the whole value, bona fide : it is a misfortune which has happened without the defendant's fault or neglect. If there was no neglect in the plaintiff, yet there is no reason to throw off the loss from one innocent man upon another innocent man : but, in this case, if there was any fault or negligence in any one, it certainly was in the plaintiff, and not in the defendant." But in the case of Ancher and others v. The Goveronor and Company of the Bank of England, (/) where it appeared that one Captain Dahl, a Dane, and resident in Denmark, being indebted to the house of Claus Heide and Co., in (e) 3 Bur. 1354. (/) Doug. 637. '294 Chap. 4.] Had and Received to the Use of Another. 294 London, applied to one M&stue, to procure him a bill in order to discharge the debt. McMlue accordingly obtained a bill from the plaintiffs at Christiana, on Claus Heide and Co., with whom they had correspondence; which bill was as follows: — " Christiana, 17th January, 1778. Two months after sight, please to pay this our sole bill of exchange to Mr. Jans Mozstue or order, one hundred and twenty *pounds sterling, value in account, and place it to account as per ad- vice, from Karon widow of Christian Ancher and sons. To Messieurs Claus Heide and Co. of London.' 1 '' On this bill was written by Mozstue an indorsement in the Danish, language of this import : " The within must be credited to Cap- tain Morten Larsen Dahl, value iu account. Christiana, 17th January, 1778. Jens Ma&stue." And it was remitted to Claus Heide and Co. in the following letter . — " Agreeable to the desire of Captain Morten Larsen Dahl of Arendall, I have inclosed for his account sent you Karen Ancher and son's bill on your- selves for 120/., which you will, on receipt, be pleased to credit his account with, and advise him of the same/' — The bill was received by Claus Heide and Co., and accepted, and they gave notice to the plaintiffs and to Dahl that they had received it and placed it to his account. Afterwards a forged indorsement in English was written upon it, as follows: — " For me to pay Mr. Detleff D. Mailer or order, " Morten L. Dahl." Mailer, who was a clerk in the house of the acceptors, carried the bill thus indorsed, but which never had been in the hands of Dahl, to the Bank, and indorsed it with his own name ; upon which it was discounted in the ordinary course of business. When the day of payment came, the acceptors having become insolvent, and Muller having ab- sconded, the bill was protested ; and one Fulgberg, as a friend or agent for the plaintiffs, came to the Bank and paid it for their honour as the drawers ; but the forgery having been discovered, this action fur money had and received was brought against the Bank, on the ground that the bill was not negotiable on ac- count of the special indorsement, and that it had, therefore been discounted by the Bank in their own wrong, and the money paid by Fulgberg, to take it up, paid in mistake. Lord Mansfield, before whom the cause was tried, directed a nonsuit ; but the case was afterwards brought before the Court of King's Bench, on a motion for a rule to set aside the nonsuit, and for a new trial, which was made absolute. (*) And Lord Mansfield said, "The ground of the nonsuit was, that the purpose for which the bill w^as drawn was answered, it having been applied to the credit of Dahl, and he having acquiesced. It therefore occurred to me, that the drawers had received no injury, and had no interest : but (which was not attended to at the'trial,) there has been a second payment for the honor of the plaintiffs ; and it is contended that a considera- tion has arisen on that second payment. Where there is equal equity, posses- sion must prevail ; and the equity is equal between persons who have been equally innocent, and equally diligent. The question therefore is, whether the Bank has been equally diligent. A bill, though once negotiable, is certainly ( + ) Duller Just., however, dissented from the determination of the Court on this case. 37 *295 296 On Promises To Pay Over Money [Part II. capable of being restrained. I remembei this being determined *upon argu- ment. A blank indorsement makes the bill payable to bearer ; but by a spe- cial indorsement, the owner may stop the negotiability. Mvestue did so here. It does not seem to me that, after the special indorsement by Mozstue, Dahl himself could have indorsed it over. Mcestue did not mean to make himself answerable as an indorser, or to enable Dahl to raise money on the bill. The Bank could not have maintained an action on the bill against the plaintiffs : it was their negligeftce not to read the special indorsement." So, in Smith v. Mercer, (g) which was an action for money had and receiv- ed. And, at the trial, it was proved, that the plaintiffs were bankers in Lon- don, with whom Maurice Evans kept cash ; the defendants were bankers at Tunbridge, and were bona fide holders for a valuable consideration, paid by them to Peter Le Souef, of a bill of exchange, drawn on the 15th of Feb. 1811, by Thomas Temple, at 65 days' date, on Maurice Evans for 120/. pay- able to the drawer's order, and indorsed by Temple and P. Le Souef. The bill, when it came to the defendant's hands, appeared to be thus accepted : " Smith, Payne, and Smiths, Maurice Evans.''' 1 This acceptance was forged. Before the bill was due, the defendants indorsed the same, and sent it with their indorsement thereon to their corresponding bankers and agents in Lon- don, Spooner and Co., to be received for them at maturity. Upon the bill be- ing presented by Spooner and Co. to the plaintiffs for payment on the 23d of April, when it became due, they immediately paid the amount to Spooner and Co., who paid the amount in account to the defendants ; all the parties being at the time equally ignorant of the forgery. The plaintiffs sent the bill to Evans at the usual time, with the other vouchers of payments made for him, and Evans immediately returned the same to them as forged, and refused to allow the payment thereof, as a payment made on his account. The plaintiffs on discovering the forgery, on the 30th of April 1814, gave notice to the de- fendants that the acceptance was forged, and required the defendants to repay the money, which they refused to do. The Court determined, that the plaintiffs could not recover from the defendants the amount which they had thus paid him on the forged acceptance, upon the ground that if the acceptance had been genuine, and the plaintiffs had refused payment, the defendants had their remedy against the supposed acceptor; or if they failed to obtain the amount from him, they had their" remedy against the prior parties on the bill. The acceptance carried with it an order on the bankers of the supposed acceptor to pay the money : it purported to be an order of Evans, whose bankers the plaintiffs were. It was incumbent on them to see to the reality of that order before they obeyed it ; and if, by obey- ing it, they are sufferers, they ought not to throw on another a loss accruing "without fault of his. But Mr. Just. Chambre differed from the majority of the Court, and was of opinion that the plaintiffs were entitled to recover, upon }he ground, " that the money was paid without any consideration, and under a (g) 6 Taunt. 76. *296 *297 Chap. 4.] Had and Received to the Use of Another, 297 mistake ; and not only under a mistake, but under a representation made to the plaintiffs by the defendants, who indorsed the bill with that forced accep- tance on it ; that the plaintiffs were required and directed so to pay it by the person whose agents they were in money transactions." But in the case of Crockford v. Winter (h) it was held, that where money was obtained under a forged certificate of a marriage, it may be recovered back in this form of ac- tion : and it is no answer that the defendant was really entitled to the money, if such right depended upon a question not of common law jurisdiction. 6. OF MONEY RECEIVED BY OR FROM AGENTS, SERVANTS, AND OTHERS, ACTING FOR THEIR PRINCIPALS. If money be received by an agent for the use of his principal, and he refuses to pay it over, an action of indebitatus assumpsit for money had and received lies against him at the suit of his principal. (?) 80, where agents in England effect a policy of insurance for a correspondent abroad, on which a loss happens, and he draws a bill upon them, which is presented to them for acceptance by the indorsee ; upon which they say, that they cannot accept it, having no funds in hand ; but that on a settlement with the underwriters it shall be paid ; am? after this the agents receive from the underwriters a sum less than the amount of the bill : It was determined, that the money so received might be recovered from the agents by the indorsee, as so much money had and received to his use. (A;) So, where goods were consigned to two for sale by commission ; but, upon a dissolution of partnership, the commission to sell was assumed by one : it was holden, that he who sold was rightly sued for the amount of sales in an action of indebitatus assumpsit for money had and received ; which form of action could not have been maintained against them both ; although they might have been both sued jointly in an action for not accounting.(Z) A share in the London Institution, incorporated by charter, for the advance- ment of literature, Sic. cannot be transferred until the proprietor shall, by writ- ing under his hand, signify his desire so to do to the committee of managers, and mention therein the name, Sfc. and other description of the person to whom he is desirous the same should be transferred, which person is to be approved by the committee : a note was *aceoidingly addressed to them in these words : " Having disposed of my share in the London Institution to (leaving a blank for the name,) I beg leave to recommend him to be elected in my place, as a pro- prietor," &c. and signed by the proprietor ; which note was left in the hands of an agent, (the clerk of the society,) for the purpose of selling the share. It was holden, that this did not authorise such agent to fill up the blank himself with the name of the purchaser with whom he contracted for the price, against (h) 1 Carapb. 124. (fc) Lmgstm v. Ceniey, 4 Car.ipb. 176 (!) Vide tit. Principal and Agent, Part III. (1) }Vdh v. Ross, 7 Taunt. 403. post. *298 298 On Promises To Pay Over Money [Part 11. the rules of the society, which require the recommendation of the candidate to be vouched by the proprietor himself, inserting his name, &e. in the paper : and consequently the agent had no authority before the transfer was so completed, to receive the money of the purchaser, and to insert his name in the blank un- known to the proprietor ; and such purchaser having paid the money before the time of payment arrived, viz. when the transfer from the proprietor was com- plete, pays at his own risk to the agent, whom he thereby makes his own for that purpose. And such agent afterwards absconding with the money, and the society disallowing the transfer upon the interference of the proprietor; it was determined, that the purchaser could not recover the amount, from such proprie- tor, in an action for money had and received, (m) So, a book-keeper in Smithfield market, receiving money for beasts sold he re, is liable to pay such money to the owner of the beasts, and cannot apply it in payment of a debt due to him from the salesman. Thus, in the case of Goode v. Jones,(/>) which was an action of assumpsit for money had and re- ceived. The plaintiff, a grazier in the country, had sent three oxen by Cookei his drover, to Smithfield market to be sold by a salesman there. Holbeach, the salesman, employed the defendant as his book-keeper, and he was also employed by several other salesmen. On the evidence it appeared, that it was the business of the book-keeper to receive the money from the purchaser, and keep an account of the beasts sold, distinguishing what each beast was sold for, and to whom it belonged. When that is clone, the salesman sends an order to the book-keeper, desiring him to pay the money to the drover. In the present case, Holbeach, the salesman, being indebted to the defendant, he refuses to pay the money received for the plaintiff's cattle to him, insisting that he had a right to retain the money received by him on that account, to satisfy the debt due to him from Holbeach. Holbeach became insolvent, and the plaintiff brought the present action. It was contended by the counsel for the defendant, that there was no privity between the plaintiff and the defendant, the defendant kept his account with Holbeach only, and the plaintiff could only call on him for the money. This is much like the case of a banker: if a sum of money is # paid into his hands for the use of a factor, it will never be contended that the principal may maintain an action against him. He also offered to call witness- es to prove that by the universal custom of the market, the. book-keeper was considered as the debtor of the salesman, and not of the grazier, with whom he had no connexion. But Lord Keinjon Ch. J. said, " By the common law of the land the plaintiff is entitled to receive this money from the defendant, and no custom whatever can deprive him of it. There is not the least similitude be- tween the case of a banker and the present defendant. No privity whatever exists between the banker of a factor and the principal, whom he never heard of, but this defendant knew that he was receiving this money for the use of the (m) Pamther v. Gailskill, 13 East Rep. (n) Peake'a Cas. N. P. 177. 432. #•-» 209 Chap. 4.] Had and Received to the Use of Another. 299 plaintiff; he entered his name in his book, and distinguished how much was due to him." The jury found a verdict for the plaintiff. If money be paid by mistake to an agent, expressly for the use of his prin- cipal, and the agent has paid it over, he is not liable in an action, by the person who mispaid it; because it is just that one man should not be a loser by the mistake of another ; and the person who made the mistake is not without re- dress, but has his remedy over against the principal. On the other hand it is just, that as the agent ought not to lose, he should not be a gainer by the mis- take. And, therefore, if after the payment so made to him, and before he has paid the money over to his principal, the person corrects the mistake ; the agent cannot afterwards pay it over to his principal, without making himself liable to the real owner for the amount, (o) If an agent pays money of his principal which ought not to be paid, it may be recovered back by an action of indebitatus assumpsit, either at the suit of the agent or his principal, (p) So, where a broker having a lien on certain policies of insurance effected for his principal, for whom he had given his acceptances, the defendant promised that he would provide for the payment of those acceptances as they became due, upon the plaintiff's giving up to him such policies, in order that he might collect for the principal the money due thereon from the underwriters ; which was accordingly done, and the money was afterwards received by the defend- ant: it was determined, (q) that this was not a promise for the debt or default of another within the statute of frauds ; and that the plaintiff might recover against the defendant, as well for the breach of agreement in not providing for the payment of the acceptances, as also upon a count for money had and re- ceived. So, in Cox v. Prentice, (r) where it appeared, that the plaintiffs Avere *gold refiners, and the defendant was a watchmaker, and had a correspondent at Gib- raltar, from whom he was in the habit of receiving broken metal. His correspon- dent remitted to him a bar of silver, which he carried to the plaintiff's house ; and they melted it down in his presence. The plaintiffs afterwards procur- ed it to be assayed by a third person, who was paid by the defendant ; and the plaintiffs paid to the defendant 88/. and a fraction, the supposed value of the silver, according to the assay-master's certificate. The defendant inform- ed his correspondent of what had deen done, and credited him in his account with the amount. The plaintiffs sold the silver to a house in Birmingham, who afterwards returned it, representing that it did not answer the assay ; upon which the plaintiffs applied to the defendant for a return of the money, offer- ing to return him the silver; but the defendant refused to return the money, on the ground that lie had forwarded his account to his correspondent, in which he had credited him with the full sum. It appeared, however, that the account (o) Buller v. Harrison, Cowp. 566. 806. (p) Cowp. 806. Doug. 637. Bui. N. P. 35. See also Sadler v. Evans, 4 Bur. 1984. : and (q) Castling v. Axibert, 2 East Rep. 325. see Stra. 4-80. and 3 Esp. Rep. 233. (r) 3 Maule & Sel. 344. *300 ►•c- 300 On Promises to Pay Over Money [Part II. was still unsettled between them. The assay-master proved that he received a small piece of the silver for the purpose of assaying it ; and he by his assay made the whole 4 oz., whereas 2 oz. 7 pwts. was the true assay. A verdict was found for the plaintiffs for the difference in value between the supposed and true weight, with liberty to the defendant to move for a nonsuit. A rule nisi was accordingly obtained upon two grounds ; 1st, that the action would not lie, even supposing it to have been brought against the defendant's principal ; 2dly, supposing it wonld lie against his principal, yet it would not against the defendant, who was merely an agent, and whose situation had been altered between the time of the sale and the action, by his having accounted for the sale money with his principal. But the Court determined, that the verdict was rio-ht, and Le Blanc Just, said, " The circumstance of the account between the defendant and his principal being still open without any new credit given, does, I think, dispose of the objection upon the 2d ground. That brings it to the principal question. Now upon that, as a general proposition, it may be true, that when an article is sold which turns out to be of less value than the price given for it, the extra price, if there be no fraud, cannot be recovered back. But that is a rule applicable only to cases where the thing is of an arbitrary value ; and the fallacy lies in applying the rule of law to this case when the thing is not of an arbitrary value, but depends upon the quantity of silver it contains. It is just like the case of a purchase of any commodity by weight, the price of which is to be fixed by the weighing ; and if the weight turns out to be less than that paid for, can there be a doubt that the party selling is bound to refund ? So here the price was to be fixed by the quantity of silver to be ascertained by the assay of the assay-master." *But in the case of Tenant v. Mackintoshes) where it appeared, at the trial, that the plaintiff had sent out goods to be sold by the defendant at Calcutta, with directions to remit the proceeds either in specie, or in a return-cargo, the nature of which, and the prices to be given for the articles were particularly pointed out by a letter of instructions. The return-cargo which was sent did not correspond with these instructions, but the plaintiff did not repudiate it with- in a reasonable time. That question was left to the jury. It appeared, how- ever that the return-cargo had been consigned to Messrs. Blanchard and Wil- son, who were desired to sell and to hold the proceeds to the order of Mackin- tosh, the latter having a lien upon the cargo to the amount of about 4000/. Blanchard and Wilson accordingly sold the cargo, and paid thereout the money due to the defendant ; the residue, amounting to 415/., remained in their hands, and was admitted to be due to the plaintiff. A verdict having been found for the defendant generally, a motion was afterwards made for leave to enter a ver- dict for the plaintiff for the sum of 415/. upon the count for money had and re- ceived : the plaintiffs' counsel contended that the cargo having been consigned to Blanchard and Wilson, to be held by them at the order of the defendant, (s) 4 Barn. & Aid. 594. *301 Chap. 4.] Had and Received to the Use of Mother* 301 they must be considered as his agents, and then the money in their hands was, in point of law, money had and received by Mackintosh, to the use of the plaintiff. But the Court refused the motion, and said, " It does not appear from the cir- cumstances in this case, that Blanchard and Wilson are so far identified with the defendant, as that the money in their hands can be considered as money had and received by the defendant. They are, in fact, the agents of both par- ties : of the defendant, for the purpose of protecting his lien upon the cargo ; and of the plaintiff for the purpose of paying over the remainder of the proceeds after the defendant's lien has been satisfied. There is therefore no ground for entering a verdict for the plaintiff for 415/., his remedy for that being against Blanchard and Wilson." 7. OF TRUST MONEY RECEIVED; AND IN WHAT CASES THE SAMEJS RECOVERABLE BY ACTION OF ASSUMPSIT. An action of indebitatus assumpsit for money had and received will not lie to recover back a sum paid upon trust, for a specific purpose, unless it be shewn that the trust is closed, and that a balance remains in the hands of the trustee. Thus, in Case v. Roberts, (t) which was an action for money had and received, where it appeared that the plaintiff had paid 50/. into the hands of the defendant, for the purpose of conducting an action for a breach of promise of marriage, brought by a relation of *the plaintiff. The payment of the money was proved, and also a letter of the defendant's, in which he gave an account that he had expended the money in a journey to Bristol for the purposes of the cause. The plaintiff's counsel then contended that the defendant ought not to have gone to Bristol ; that it was not necessary for the action ; and that he was not au- thorized to go there : the defendant's account was also falsified in some partic- ulars. For the defendant it was insisted that the present, action could not be maintained. It was said, if money is advanced, and the purpose for which it is advanced fails, an action lies to recover it back : but this was in substance a trust : an action of account might lie, or the plaintiff might go into a court of equity ; but money had and received could not be maintained. The defen- dant has furnished an account, and discharged himself by it ; if he has been guilty of a breach of trust, the plaintiff must have recourse to another tribunal. Burrough Just., before whom the cause was tried, said, " If money is paid into the hands of a trustee for a specific purpose, it cannot be recovered in an action for money had and received until that specific purpose is shewn to be at an end. The action for money had and received must not be turned into a bill in equity for the purpose of discovery. If the plaintiff show that the specific purpose has been satisfied ; that it has absorbed a certain sum only, and left a balance ; such balance (the trust being closed) becomes a clear and liquidated sum, for which an action will lie at law. Whilst the matter remains in account, and is (0 Holt's Ni. Pri. Cas. 500. *302 802 On Promises To Pay Over Money [Part II. charged with the specific trust, the action for money had and received will not lie." But where the trustees under a marriage-settlement of stock, the dividends of which they covenanted to permit the bankrupt to receive for his life, execut- ed after his bankruptcy, a power of attorney to A. to receive the same. A. re- ceived the dividends, and paid them over to the wife of the bankrupt, save one sum, which he paid to one of the trustees : it was determined, that the assignees might recover the total amount of such dividends from the trustees, in an action for money had and received, inasmuch as the whole of the money had been vir- tually received by the trustees after full notice of the bankruptcy, (w) 8. OF THE PRODUCE OF AN ADVENTURE IN THE SOUTHERN WHALE FISHERY BETWEEN THE CAPTAIN AND HIS CREW, SOLD BY THE OWNER AS THEIR AGENT : AND OF THE SEAMEN'S REMEDY TO RE- COVER THEIR INDIVIDUAL SHARES BY ACTION FOR MONEY HAD AND RECEIVED. In the case of Evans v. Bennett, (v) which was an action of indebitatus as- sumpsit for seamen's wages, and for money had received and *brought for the plaintiff's proportional share of and adventure in the southern whale fishery, in a ship called the Mary Skerhall ; and it appeared in evidence, that by certain articles of agreement, under seal, between the captain of the ship, and the plaintiff, together with the other mariners, it was agreed that they should serve faithfully during the voyage out and home ; that if any of them deserted, they should forfeit all benefit from the voyage ; that the cargo should be sold six weeks after the ship returned ; or if not sold, should be valued, when each mariner should receive that proportion of the net proceeds marked against his name ; that the defendant as owner of the ship, should be nominat- ed their agent to dispose of the cargo for the benefit of all parties concerned ; and that the officers and seamen should receive a proportional share of all prizes taken during the voyage. For the defendant it was objected, that the action had been misconceived, and that the plaintiff should have declared special- ly on this agreement. There was clearly no sum of money due as wages ; for the plaintiff, according to the usual way in fishing voyages to the south seas, was to receive a share of the produce of the cargo, and was in fact a partner in the adventure. Nor could he recover this share as money had and received to his use ; as there had been no liquidation of accounts, and no acknowledgment of any sum being due to him. For the plaintiff it was submitted, that he was entitled to recover under the count for money had and received. But Mans- field Ch. J. said, " There is no doubt that the plaintiff would here be obliged to prove that he did his duty on board the ship ; but the count for money had and received (to which alone we can look,) gives no hint of this, and affords no (u) Allen v. Impell, 8 Taunt. 263. See Impett. Holt's Cas. 641. S. C, but where defend- (t>) 1 Campb. 300. ant's name is stated to be Imlett instead of *303 Chap. 4.] Had and Received to the Use of Another. SOS sort of information as to the nature of the demand. The plaintiff claims a certain proportion of the proceeds of a voyage, in consideration of having done his duty as a mariner, according to the stipulations of an agreement entered into between him and the captain of the ship. Ought he not then to have daclar- ed upon this agreement 1 The cargo may have been sold by the defendant ; but its produce, as soon as received, does not become money in his hands ap- propriated to the use of the mariners. If it can be proved that he has admitted that the plaintiff did his duty properly during the voyage, and that he is entitled to a share of the proceeds, money had and received may do ; otherwise I think there should have been a special declaration." But no evidence of this kind being offered, his lordship directed a nonsuit. *9. OF MONEY RECEIVED EITHER UPON THE SALE AND PURCHASE OF LANDS, HOUSES, FIXTURES, GOODS, CATTLE, &c. OR IN RESPECT OF SOME ACT TO BE DONE, OR BENEFIT TO BE DERIVED ; OR UPON THE SALE OF ANNUITIES : WHERE THE CONTRACT HAS EITHER BEEN RE- SCINDED, DISAFFIRMED, OR NOT PERFORMED, AND THE CONSIDERA- TION HAS FAILED. IN WHAT CASES THE MONEY SO RECEIVED MAY BE RECOVERED BACK BY ACTION OF INDEBITATUS ASSUMPSIT. In a former part of this work(itf) we have seen that a contract may be re- scinded or put an end to by the mutual agreement of the contracting parties ; and that it may be disaffirmed either where an option is reserved in the contract, or where the contract has not been performed, and there has been a failure of the consideration. But, in order to disaffirm a contract, and treat it as deter- mined, hoth parties must be placed in the same situation as they were before the contract was made. (a:) Now when a contract has been thus rescinded or disaffirmed, and money has been previously paid thereon by way of deposit, and in part of the purchase money, either to the vendor himself, or to his agent or auctioneer, such money may be recovered back by action of indebi- tatus assumpsit. But if the contract cannot be rescinded or disaffirmed, and it continues open or executory, this form of action will not lie ; the proper remedy being either by special action of assumpsit upon the contract for the money agreed to be paid, or for general damages ; or by bill in equity for a specific performance.(y) These distinctions will be seen throughout the cases on this subject, which I now propose to consider under the following subdivisions, namely, first, of money paid by way of deposit upon a contract for the sale of lands, houses, &c. ; secondly, of money paid upon the sale of cattle, goods, &c. ; thirdly, of money paid in consideration of some act to be done or other benefit to be received, but which has failed ; and lastly, of money received on the sale of annuities, where a good title cannot be made, or where the deeds have been set aside or put an end to by agreement or otherwise. (to) Part. I. c. 2. s. 3. 8. Cowp. 318. 2 Bur. 1010. Sugden'a Vendor (x) Anto, 39. and Purchaser. (y) Vido 1 Term Rep. 135. Doug. 23. 24. n. 38 # 304 S04 On Promises To Pay Over Money [Part II. 1. Or Monet paid by way of Desposit upon a Contract for the Sale of Lands, Houses, Fixtures, &c. which has been rescinded or disaffirmed by reason of some Misdescription or the Premises, or for want of making out a valid tltle, or refusing to execute a proper convey- ANCE, &c] — If a contract is made for the sale of lands or houses either by- public or private contract, and a deposit, or other sum of money is paid thereon; and it afterwards 'appears that any material misrepresentation or improper description has been made of the premises either by the vendor him- self, or by his agent or auctioneer employed to sell, the vendee may disaffirm the contract, and recover back the money so paid by action of indebitatus as- sumpsit. Thus, in the ease of the Duke of Norfolk v. Worthy, (z) which was an action of indebitatus assumpsit for money had and received to recover back a deposit upon a contract for the sale of an estate which was advertised for sale, as consisting of 486 acres of land situate between London and Brigh- ton, being about one mile from Horsham, four from Crawly, &e. And among other conditions of sale, was the following : " If through any mistake the pre- mises should be improperly described, or any error or mis-statement be insert- ed in this particular, such error shall not vitiate the sale thereof, but the vendor or purchaser, as the case may happen, shall pay or allow a proportionate val- ue according to the average of the whole purchase money as a compensation either way." The sale was to have taken place by auction on the 2 1st of De- cember ; but on the 15th of the samemonth, a written agreement was entered into between /. Richardson on the behalf of the defendant, and J. Harting who then appeared as a principal, whereby the defendant was to convey the premises to Harting on or before the 20th of January following, for 1575/. to be paid to Richardson on the execution of the conveyance; and for the true performance of the agreement, Richardson and Harting bound themselves to each other in the penalty of 500/. A deposit was then paid by Harting to Richardson of 300 guineas. The deposit being paid, Harting intimated for the first time, that he had not purchased the estate for himself, but for the Duke of Norfolk. Various steps were afterwards taken for carrying the agreement into execution ; but on the 19th of January, Harting informed Richardson, that the Duke would not complete the purchase, as the estate, instead of being only one mile from Horsham, was between three and four. This fact being now clear- ly established, the plaintiff's counsel contended, that it constituted a material variance from the particular ; so that the contract of sale was vitiated, and the deposit was recoverable as money had and received. For the defendant it was objected, that the action ought to have been brought in the name of Harting. He alone appeared as purchaser on the face of the agreement and until after it had been executed and the deposit paid, the Duke of Norfolk's name had not been mentioned. Harting, therefore, was to be considered as the principal. Against him only, and not against the Duke, an action to recover the penalty would {x) 1 Campb. 337. '305 Chap. 4.] Had and Received to the Use of Another. 305 have lain, had a proper conveyance been tendered and refused. But Lord El* lenborough Ch. J. said, " On the agreement, Harting only may be liable ; but the question here is, whose money was paid as a deposit ? If it was *the money of a principal paid through the medium of an agent, it may be recovered back by the principal, upon the contract, under which it was paid, being rescinded. I therefore think that the action is rightly brought in the name of the present plaintiff." It was theft urged on the part of the defendant, that as there was ev- idence of only a part of the deposit being paid over to Worthy, the action would not lie against him, but ought to have been brought against Richardson. And he relied upon the case of Burrough v. Skinner, (ci) where it was held, that the auctioneer is liable for the deposit where the bidder has sufficient rea- son not to proceed. But his lordship held, that if proof were necessary that the money had been paid over to the defendant, the evidence given would be in- sufficient. The deposit is not to be split into portions, and Richardson would still be considered as the depository. But it seems to make no difference, whether it was actually paid over or not. Richardson here acted completely as the agent of the defendant. Therefore, when the deposit was lodged with the agent, this was in law co insta7ili a payment to the principal." The defendant's counsel then addressed himself to the merits of the cause, and insisted, that ^the effect of the misdescription was saved by the condition, which provided that no error or mis-statement should vitiate the sale. But Lord Ellenborough said, "In cases of this sort, he should always require an ample and substantial performance of the particulars of sale, unless they were specifically qualified. Here there was a clause inserted, providing that an error in the description of the premises should not vitiate the sale, but an allowance should be made for it. This he conceived was meant to guard against unintentional errors ; not to compel the purchaser to complete the contract if he had been designedly mis- led. His lordship therefore left it to the jury, whether this was merely an erro- neous mis-statement, or the mis-description was wilfully introduced to make the land appear more valuable from being in the near neighbourhood of a bor- ough town. In the former case the contract remained in force ; but in the lat- ter case the plaintiff was to be relieved from it, and was entitled to recover back his deposit." And the plaintiff obtained a verdict accordingly. The de- fendant, however, afterwards moved for a new trial, both on the ground that the action should have been brought in the name of Harting, and that it should have been brought against Richardson ; but the Court were of opinion, that the deposit was to be considered the money of the Duke of Norfolk ; and that be- ing paid to the agent of the defendant, it was money had and received by the latter to the plaintiff's use. A contract to make a good title, means a title good both at law and in equi- ty. This was determined in the case of Mabcrley v. Robins,(b) which was an action for money had and received, brought to recover "back the deposit pai (a) Post. 308. (h) 5 Taunt. 625. *30<5 *307 807 On Promises To Pay Over Money [Fart II. by the plaintiff upon the purchase of a house, in consequence of an objection taken to the title. Lady Fane, the proprietor, devised it to certain trustees, in trust for Lady Read. The devisees in trust conveyed the premises for 6690/. to Thomas Read, who declared a trust of the premises for Lady Read, one of the persons equitably entitled under the will of Lady Fane. Tho- mas Read was willing to convey, so that the legal estate might he well vested in the purchaser; but the purchaser insisted on the concurrence of those in whom Lady Read's equitable interest had since vested, and who were now infants. There was no count for interest of money. The jury found a ver- dict for 1800/. the deposit, and 75/. interest. The defendant moved the Court to enter a nonsuit, urging, that though the objection taken to the title might be a strong one in a court of equity, yet, that inasmuch as it was only an eq- uitable objection, the plaintiff must resort thither to avail himself of it. That this Court could no more go into the consideration of equitable objections to the title in this action, than they could on the trial of an ejectment. The title is confessedly good at law : the Court of Chancery interferes on the very ground that a title is good at law ; and if that Court sees reason to grant relief, it decrees a re-conveyance. The Court, however, determined that the plain- tiff had a right to recover the deposit, but without interest. And Gibbs Ch. J. said, " It has been determined, that if parties resort to a court of law for their judgment on a title to a real estate, they must be content with the judgment of* the court of law ; and if that Court says the title is good, the party who comes for the judgment of the Court shall be bound by it, however doubtful the point ; and shall not afterwards refuse the purchase because it was a doubtful title : but the doctrine has never been carried to the extent the defendant now contends for. Here is a contract to make out a good title. If that contract be a contract to make a good title both in law and in equity, and the contract is brought before this Court, we must collaterally look to see whether the title be good in equity as well as in law. It is true, we sit here only as a Court of law, to administer the legal rights which arise out of the contract ; but one of those rights is, to have a title good in equity. (c) See to what a length the defendant's doctrine would proceed! If a deed appeared on the abstract, whereby lands were conveyed to A. and his heirs, to the use of B. and his heirs, in trust for C. and his heirs, it would prove that a good title at law was made out in B. and his heirs to convey, without ihe concurrence of C' So, if an estate is sold by auction, and the vendor does not shew a clear title by the day specified in the conditions of sale, the purchaser *may recover back his deposit, and rescind the contract without waiting to see whether the vendor may ultimately be able to establish a good title or not : nor is a pur- chaser bound to accept a doubtful title. And where it was an objection to a title that it was doubtful whether the wife of a party to a deed thirty years (c) But see tho case of Alpass v. Watkins, back if the vendor has a good legal title, 8 Term Rep. 516. where it was determined, and that the court will only take notice of that the deposit money cannot be recovered the legal estate. # 308 Chap. 4.] Had and Received to the Use of Another. SOS old was barred by that deed of her dower, it was not answerable, by proving at the trial, that she was then dead ; such proof not having been before given. (d) It is a sufficient objection to a title, that a person under whom the vendors claim, held, during his seisin of the estate, a newly-created office under the crown, (that of commissioners of Dutch property,) in which he was directed by statute to pay the surplus (after certain charges answered) cf the proceeds of certain sales in the Bank of England, there to remain subject to such orders as the king in council should give thereon, and that his accounts with the crown were yet unliquidated. (*) So, where the assignees of a bankrupt sell an estate under a commission of bankruptcy which is not valid, for which reason the purchaser disaffirms the con- tract, he is entitled to recover back his deposit, even though a new commis- sion is afterwards sued out under which a good title may be made. Thus, in the case of Bartlctt v. Tuchin and another, (c) where it appeared that the defen- dants, as assignees of a bankrupt, had contracted for the sale of his copyhold lands, and received a deposit. The commission was afterwards superseded ; and another commission issued, and the same assignees were chosen ; but the plaintiff had disaffirmed his contract pending the old commission ; it was held, that he was entitled to recover back his deposit, though under the last commis- sion a valid title might have been made. So, in the case of Burrough v. Skinner,(f) which was an action of inde- bitatus assumpsit for money had and received by the defendant, who was an auctioneer ; and in that character he had sold to the plaintiff an interest in land, for which the plaintiff had paid him a deposit of 50/., but upon an objection to the title, and the want of disclosure of certain circumstances, which ou^ht to have been disclosed at the time of the bidding, the plaintiff disaffirmed the con- tract and brought the present action. And the Court were clearly of opinion, that the action was properly brought against the auctioneer: They said, " the money does not appear to have been paid over by him to his principal : but if it had been so, yet the objection appears to have been made before it either was or ought to have been so paid over. He was a stakeholder, a mere depository of the 50/., and ought not to have parted with it till such time as the sale should have been finished and completed ; and it should appear, in the event, to whom it properly belonged." It has also been ruled by Lord Kenyon Ch. J. that where the auctioneer *does not disclose the name of his principal at the time of sale, and the contract is not performed, he is personally liable not only for the deposit, but also for loss of interest, and for damages and expenses, (g) So, where an estate is sold by auction, and in the printed conditions of sale, there is a statement and warranty of the title, the premises shall be taken to be sold under such title ; and no verbal declarations of the auctioneer at the time of the sale shall be (d) Wilde v. Fort, 4 Taunt. 334. (*) Ibid. (312 Chap. 4.] Had and Received to the Use of Another. 312 haJ been made, was not only evicted from the possession, but was obliged to refund the rent and profits of that particular parcel of land. Several of the persons interested consented to repay their proportions of the purchase money ; but some (among whom was the present defendant) refused ; and the question was, whether, under these circumstances, the plaintiff was entitled to recover his proportion in an action of indebitatus assumpsit for money had and received, and retain possession of the other piece of land ? The Court of Common Pleas were of opinion that the plaintiff was entitled to recover against the defendant his proportion of the purchase money in this form of action, and also to retain possession of the other piece of land : and Lord Alvanley Ch. J., in delivering the opinion of the Court, said, " If the question were, how far the particular part of which the title has failed formed an essential ingredient of the bargain* the grossest injustice would ensue if a party were suffered in a court of law to say that he would retain all of which the title was good, and recover a pro- portionable part of the purchase money for the rest. Possibly the part which he retains might not have been sold unless the other part had been taken at the same time, and ought not to be valued in proportion to its extent, but according to the various circumstances connected with it. But a court of equity may inquire into all the circumstances, and may ascertain how far one part *of the bargain formed a material ground for the rest, and may award a compensation, according: to the real state of the transaction. In this case, however, no such question arises : for it appears to me that, although both pieces of ground were bargained for at the same time, we must consider the bargain as consisting ot two distinct contracts; and that the one part was sold for 300Z. and the other for 700Z. It has not been suggested that they were necessary to the occupa- tion of each other. It amounts therefore to no more than this ; that the plain- tiff being one of the executors, who were about to sell the house, and also to sell the land, to both of which the legatees undertook to make a good title, ad- vanced his money to the legatees on the purchase of these two lots, and now seeks to recover back the money for one of them, because the title to that has proved de- fective. In the present case, the plaintiff never has had any title conveyed to him ; and therefore we are of opinion, notwithstanding the party sued is a legatee, that the plaintiff has paid his money under a mistake ; consequently, the rule adopted in courts of law in such cases applies to him, and entitles him to recover that money from the party to whom it has been paid, in an action for money had and received." If, however, there be but one contract, it cannot be rescinded by one of the parties for the default of the other, unless both of them can be put in statu quo as before the contract. Thus, in the case of Hunt v. Silk,{p) which was an action of indebitatus assumpsit for money had and received. The facts were these: — On the 31st August, 1802, an agreement of that date was made be- tween the parties, whereby the defendant, in consideration of 10/. to be paid (p) 5 East Rep. 449. 39 *313 313 Chi Promises To Pay Over Money [Part II. at the time of executing the lease after mentioned, and for other considerations therein stated, agreed that, within ten days from the date thereof, he would grant to the plaintiff a lease of a certain dwelling-house, for nineteen years (determinable by the plaintiff in five, ten, or fifteen years), from the 29th of September then next (but possession to be immediately given to the plaintiff,) at the yearly rent of 03/. And the defendant also agreed, at his own expense, to make certain alterations in the premises, and that the premises, fixtures, and things should, at the time of executing the lease, be put in complete repair : and the plaintiff, in consideration thereof, agreed to accept the lease at the rent, and in the manner aforesaid, and to execute a counterpart, and pay the rent. The plaintiff took immediate possession of the premises under the agreement, arid paid the 10/. at the same time, in confidence that the alterations and repairs stipulated for would be done within the ten days ; but that period having elapsed, and nothing being done, notwithstanding several applications to the defendant to perform the work, the plaintiff quitted the house, giving the defen- dant *notice of his having rescinded the agreement in consequence of the de- fendant's default, and brought this action to recover back the money he had paid. But the Court of King's Bench were of opinion, that the plaintiff could not, under the circumstances of this case, rescind the contract and declare in this general form of action. And Lord EUenborough Ch. J. said, " Without ques- tioning the authority of the case of Giles v. Edward,(q) (which was cited by the counsel for the plaintiff) which I admit to have been properly decided, there is this difference between that and the present ; that there, by the terms of the agreement, the money was to be paid antecedent to the cording and delivery of the wood ; and here it was not to be paid till the repairs were done, and the lease executed. The plaintiff there had no opportunity, by the terms of the contract, of making his stand, to see whether the agreement were performed by the other party before he paid his money, which the plaintiff in this case had : but instead of making his stand, as he might have done, on the defendant's non-performance of what he had undertaken to do, he waved his right, and voluntarily paid the money, giving the defendant credit for his future performance of the contract, and afterwards continued in possession, notwithstanding the defendant's default. Now where a contract is to be rescinded at all, it must be rescinded in loto, and the parties put in statu quo. But here was an intermediate occupation, a part execution of the agreement, which was incapable of being rescinded. If the plaintiff might occupy the pre- mises two days beyond the time when the repairs were to have been done, and the lease executed, and yet rescind the contract, why might not he rescind it after a twelvemonth on the same account ? This objection cannot be gotten rid of: the parties cannot be put in statu quo.'''' Where money is paid by way of deposit on a contract for the sale of lease- hold premises ; and, upon examining the vendor's title, it should appear that he (q) Vide post. 323. '314 Chap. 4.] Had and Received to iha Use of Another. 314 has a less term of years to come than what is mentioned in the agreement, or his title be otherwise defective, the purchaser may consider the contract at an end, and bring an action for money had and received, to recover back his de- posit. Thus, in the case of Farrer v. Nightingal,{r) which was an action of indebitatus assumpsit for money had and received. The facts are reported as follow: — "The defendant being possessed of a public house, the plaintiff en- tered into a treaty with him for the sale of his interest ; and a written agree, ment was accordingly entered into between the plaintiff and the defendant, which recited that the defendant was possessed of an interest in a public-house of which eight years and a half were to come ; and that the plaintiff had contracted and agreed for the purchase of the interest and good will of the same, for a certain sum of money therein mentioned. Tbe plaintiff paid *a deposit of 5/. to the defendant, on signing the agreement ; but afterwards, upon looking into the de- fendant's title, it appeared that he had an interest to come in the premises of but six years only, and not of eight years and a half, as stated in the agree- ment ; upon Which the plaintiff refused to accept the assignment, and brought the present action to recover the deposit money." And for the defendant it was objected, that as there had been a written agreement between the parties, the plaintiffs should have declared on it, and should not be permitted, in this action, to go into parol evidence of the matters contained in it ; which matters were necessary to the support of the plaintiff's action. But Lord Kenyon Ch. J. said, " I have often ruled, that where a person sells an interest, and it appears that the interest which he pretended to sell was not the true- one ; as, for exam- ple, if it was for a less number of years than he had contracted for to sell, the buyer may consider the contract as at an end, and bring an action for money had and received to recover back any sum of money he may have paid in part performance of the agreement for the sale ; and though it is said here that, upon the mistake being discovered in the number of years of which the defen - dant stated himself to be possessed, he offered to make an allowance pro tanto, that makes no difference in the case ; it is sufficient for the plaintiff to say, that is not the interest which I agreed to purchase. The plaintiff's action is well brought." So, in Adams v. Fairbaim,(s) which was an action brought to recover a de- posit of 39/. paid by the plaintiff upon the purchase of a lease of a public-house which was put up to sale by a public auction. The plaintiff declared on a special agreement, and also for money had and received. Upon the production of the supposed agreement, it appeared to be unstamped ; but it had not been signed by either of the parties, or by the auctioneer as their agent. Abbott Just., before whom the cause was tried, was of opinion, that the plaintiff might still be entitled to recover on the count for money had and received. It after- wards appeared, that in order to complete the title, it was necessary to procure the execution of an assignment of the lease by one Allen ; and that the lease it- (r) 2 Esp. Rep. 639. (s) 2 Staik. 277. *315 315 On Promises To Pay Over Money [Part II. self was in the hands of the brewer, who had supplied the former tenant with beer, and who had a lien upon it for the amount of his debt. The learned judge intimated that it was incumbent on the defendant to show that an asign- ment of the lease, executed by Allen, had been tendered to the plaintiff when he demanded his money. The counsel for the defendant submitted, that since the money had been paid on the ground of a contract between the parties, it could not be recovered whilst the contract was in force, and until default made by the defendant : he was ready to prove that the parties were on the spot ready to assign the *lease, on the payment of the remainder of the purchase money by the plaintiff; and he contended that the payment of the money, and the assignment of the lease were concurrent acts, and that neither of the par- ties was bound to execute his act the first ; it was sufficient if each of them was ready to perform his own part of the engagement. It appeared in evi- dence, that the parties had met in order finally to conclude the business, and that the plaintiff's attorney attended to pay the remainder of the purchase money : it also appeared that Allen, at the request of Fairbairn, had attended in town for the purpose of executing the assignment, but that in fact no assign- ment had been eidier tendered or executed. His Lordship, however, was of opinion, that it was incumbent on the defendant to prove, that an assignment had been executed. He said there was no contract between the parties in evi- dence, since the statute of frauds required that such a contract should be in writing, and since no assignment appeared to have been tendered, the jury were directed to find a verdict for the plaintiff, which they accordingly did for the amount of the deposit." So, in the case of Elliott v. Edwards, (t) where a leasehold estate Avas put up to sale by public auction, and the plaintiff became the purchaser, and paid a deposit of 20Z. per cent, in part of the purchase money, and signed an agree, ment for payment of the remainder on or before the 2d of February, 1802, on having a good title, when possession would be given. But upon investigating the title, it appeared, that the assignee of the lessee had not paid the whole of the purchase money for the assignment ; and that there was a proviso in the as- signment, not to assign without licence of the lessee, the purchaser therefore refused to complete the purchase, and brought this action to recover the deposit. And the Court of Common Pleas held, that the non-payment of the purchase money by Johnes was a sufficient objection to the title, and that the plaintiff might recover back his deposit in this form of action. It is a general rule, that in an action for money had and received, to recov- er back a deposit made upon a sale, on the ground of a defect of title, the par- ty bringing the action must prove the title bad, and it will not be sufficient to show, that the title has been deemed insufficient by conveyancers, who have been employed to advise upon it. This was settled, in the case of Camfield v. Gilbert,{u) which was an action of assumpsit for money had and receivedi (t) 3 Bo?. & Ful. 131. (u) 4 Esp. Rep. 221. 3 East Rep. 516. S. C. *316 Chap. 4.] Had and Received to the Use of Another. 316 brought to recover the sum of 50/. which was the deposit paid by the plaintiff, on the purchase of an estate in Kent, contracted to be sold by the defendant to the plaintiff; the plaintiff contending that the title was bad ; and that he was entitled to recover his deposit. At the trial, before Lord Ellcnboroitgh Ch. J., the counsel for the plaintiff, after having stated that opinions of different '"con- veyancers had been given on the title before the completing of the purchase, who were of opinion that the title was defective, and ought not to be taken by the plaintiff, asked his lordship whether it might not be sufficient for him to re- ly on the fact of such conveyancers, advising the party not to complete the purchase 1 or whether it was necessary for him, on the part of the plaintiff, to go into the title, to show that it was defective, in order to entitle him to recover the deposit, as being paid on a bad and defective title. But Lord Ellcnbo- rough Ch. J. said, " The plaintiff's right to recover the money deposited depend- ed on the defect of the title of the defendant to the premises, which he had contracted to sell ; and unless it was a bad title he had no claim to recover. It would be therefore necessary for him to show that the title was bad." In the case of Bree v. Holbech,(v) where a personal representative having found amo ng the papers of his testator, a mortgage deed, and having assigned it for upwards of six years for the mortgage money, affirming and reciting in the deed of assignment, that it was a mortgage deed made or mentioned to be made between the mortgagor and mortgagee for that sum ; it was decided, that the assignee could not recover back the mortgage money, although it should turn out that the mortgage was a forgery, and that the assignee did not discover the forgery, till within six years before he brings his action, unless the assignor knew it to be a forgery. Lord Mansfield Ch. J., in this case, said, " The ques- tion is, whether there has been any fraud? Now, here every thing alleged may be true, without any fraud on the part of the defendant. He is an admin- istrator with the will annexed, who finds a mortgage deed among the papers of his testator, without any arrears of interest, and parts with it bona fide, as a marketable commodity. If he had discovered the forgery, and had then got rid of the deed as a true security, the case would have been very different. He did not covenant for the goodness of the title, but only that neither he nor the testator had incumbered the estate. It was incumbent on the plaintiff to look to the goodness of it." But, where a person, supposing himself the legal representative of a lessee for years, sold the term and delivered the lease, but without any assignment or formal conveyance, saying the premises were his, and if any thing happened he would see the vendee righted : it was determined, that the vendee might maintain an action against the vendor for the purchase money, where the right- ful administrator of the tenant for years, had ousted the plaintiff by ejectment. Thus, in the case of Cripps v. Rcade(w) which was an action of assumpsit for money had and received, to recover a sum of 40 guineas, which had been (t«) Doug. 654. (tt-) 6 Term Rep. 606. # 317 SI 7 On Promises To Pay Over Money [Part 11. paid by the plaintiff to the defendant for the purchase of a leasehold estate. The *defendant claimed the estate in question as administrator to Mary Bartlett, who had taken out letters of administration to her husband, the former posses- sor of the estate, under the name of Caleb Bartlett, his real name being Carey Bartlett. On the sale, the lease itself was delivered to the plaintiff, but there was no assignment or other conveyance from the defendant ; but a conversation took place between them, in which the latter said, '' that the premises were his right and property to do as he liked with, and if any thing happened he would see the plaintiff righted." Afterwards John, the nephew of Carey Bartlett, took out letters of administration to him by the right name, and recovered pos- session of the premises by ejectment. At the trial it was contended, on the part of the defendant, 1st, that no action lay to recover the purchase money, on the authority of Bree v. Holbech,{x) where under circumstances of a similar nature the principal of caveat emptor was held to apply. But 2dly, If any ac- tion could be maintained, it could only be on the special warranty. But Law- rence Just., before whom the cause was tried, overruled the objections, and di- rected a verdict to be found for the plaintiff, with liberty for the defendant to move to enter a nonsuit. A motion for that purpose was accordingly made : but the Court of King's Bench refused the rule : and Lord Kenyon Ch. J. said : " I do not wish to disturb the rule of caveat emptor adopted in Bree v. Holbech, and in other cases, where a regular conveyance was made, to which other cov- enants were not to be added ; for in general, the seller only covenants for his own acts, and for those of his ancestor, in which respect the case of a mort- gage differs from it, as a mortgagor covenants that at all events he has a good title : but here the whole passed by parol, and it proceeded on a misapprehen- sion by both parties that the defendant was the legal representative of the les- see, though it turned out afterwards that he was not. As therefore the money was paid under a mistake, I think that an action for money had and received will lie to recover it back. In the case cited no action at all could have been maintained." So, in the case of Robinson v. Anderton,(y) which was also an aetion for money had and received. And at the trial it appeared, that the plaintiff had succeeded the defendant in a public house, and had paid him for some fixtures which belonged to the lessor, and which were scheduled in the lease, and for which the plaintiff was obliged to pay the lessor. The defendant had been an under-tenant, and had paid the person of whom he rented the house for these fixtures. The action was brought for the amount of the sum paid by the plaintiff to the defendant : and it was contended, on behalf of the defendant, that this action could not be maintained, he having paid for them to a former tenant ; *and therefore did not commit any fraud on the plaintiff. But Lord Kenyon Ch. J., before whom the cause was tried, said, " This action imputes nothing fraudulent to the defendant ; his title is disaffirmed ; for it appears he has received money which he had no right to, and which he must therefore re- ( .<•) Ante, 317. ({/) Peak's Cas. N. P. 94. *318 *319 Chap. 4.] Had and Received to the Use of Another. 319 turn. He may recover back the money from the person to whom he paid it." 2. Of Money Paid upon the Sale of Cattle, Goods, &c.J Where, by the terms of the contract, it is left in the power of one of the contracting par- ties to rescind it, and he does so ; or where both parties mutually assent to its being rescinded ; and money has been received upon the contract, it may be re- covered back by action of indebitatus assumpsit : but if the contract continue open, the plaintiff cannot declare in this general form of action, but must state the contract and breach specially. (z) Thus, if \. sell a horse to B. and agree that if he dislikes and re-delivers the horse to C. he should repay the money, otherwise A. himself would, upon re-delivery of the horse to C, an assumpsit lies by B. against A. for money received to his use. (a) So, in the case of Towers v. Barrett,(b) which was an action of indebitatus assumpsit for money had and received : and on the trial it appeared, that the suit was instituted by the plaintiff to recover ten guineas, which he had paid to the defendant for a one horse chaise and harness, on condition to be returned in case the plaintiff's wife should not approve of it, paying 3s. 6d. per diem for the hire of it. This contract was made by the defendant's servant, but his master did not object to it at the time. The plaintiff's wife not approving of the chaise, it was sent back at the expiration of three days, and left on the defendant's premises, without any consent on his part to receive it. The hire of 3s. 6d. per diem was tendered at the same time, which the defendant refused, as well as to return the money. It was objected, that an indebitatus assumpsit for money had and received would not lie ; but that the action should have been on the special contract. The Court, however, determined that the action for money had and received was maintainable ; for the condition was to return the chaise if not approved of; therefore the moment it was returned, the contract was at an end, and the defendant held the money against conscience, and without consideration. Butter Just, said, " The distinction between those cases where the contract is open, and where it is not so, is this : if the contract be rescinded, either as in this case, by the original terms of the contract, where no act remains to be done by the defendant himself, or by a subsequent assent by the defendant, the plaintiff is entitled to recover back his whole money ; and then an action for money had and received *will lie. But if the contract be open, the plain- tiff's demand is not for the whole sum, but for damages arising out of that con- tract. In a case before me on a warranty of a pair of horses to Dr. Compton, that they were five years old, when in fact they turned out to be only four, and they were not returned within a certain time, I held that if the plaintiff would rescind the contract entirely, he must do it within a reasonable time, and that as he had not rescinded the contract, he could only recover damages ; and then the question was, what was the difference of the value of horses of four or five years old ? so that the difference in cases of this kind is this ; where the (z) Vide 1 Term Rep. 136. Assumpsit, A. 1. (a) 3 Lev. 364. Com. Dig. tit. Action of (6) 1 Term Rep. 133. *320 320 On Promises To Pay Over Money [Part II. plaintiff is entitled to recover his whole money, he must show that the contract is at an end ; but if it continue open, he can only recover damages, and then he must state the special contract, and the breach of it." But in the case of Weston v. Doiones,(c) which was also an action for mon- ey had and received; and at the trial before Lord Mansfield, the plaintiff prov- ed that the defendant, in consideration of seventy guineas, had sold him a pair of coach horses, which he undertook to take back, if the plaintiff should disap- prove of them, and return them within'a month ; the plaintiff did return them within a month, but took another pair from the defendant in their stead, without making any new agreement. These he also returned within a month, and re- ceived a third pair on the 23d of December, without any fresh bargain. This third pair he disapproved of, because they were restive, and would not draw, and offered to return them on the 5th of January, but the defendant refused to take them back. Upon this evidence his Lordship directed a nonsuit; and, on a rule to show cause why the nonsuit should not be set aside, and a new trial granted, the question was, whether the action of assumpsit for money had and received would lie in this case ? The Court were of opinion that the contract continued open ; and the plaintiff's only remedy was by special assumpsit upon the warranty, and not indebitatus assumpsit for money had and received ; and that it resembled the case of Power v. Wells, (d) where the plaintiff gave a horse of his own and twenty guineas for a horse of the defendant's, which was war- ranted sound, but proved to be unsound ; upon which the plaintiff, after tender- ing a return, as mentioned in the last case, brought the action for money had and received for the twenty guineas, and also an action of trover for his own horse. The Court held that neither would lie : not the latter action, be- cause the property had been changed. So, where the seller of a horse had warranted it sound ; and in a subsequent conversation said, " that if the horse were unsound, (which he denied) he would take it again, and return the money ;" this does not amount to an aban- donment of the original c ontract, which still remains *open ; and though the horse be unsound, the vendee must sue upon the warranty, and cannot maintain indebitatus assumpsit for money had and received to recover back the price, after a tender of the horse. This was settled in the case of Payne v. Whale,(e) in which the Court determined that the plaintiff could not recover in this gen- eral form of action, but ought to have declared specially ; and Lord Ellen- borough Ch. J., in delivering the opinion of the Court, said, " This was a cause tried before me at Guildhall, to recover back the price of a horse sold as a sound horse, but which proved to be unsound. It was to be collected from the evidence, that there had been a warranty of soundness at the time of the original contract of sale : but in a subsequent conversation, when the plain- tiff objected that the horse was unsound, the defendant said, "that if the horse were unsound, he would take it again and return the money." And it was (c) Doug. 23. (e) 7 East Rep. 274. (d) Doug. 24. Cowp. 818. *321 Chap. 4] Had and Received to the Use oj Another. 321 contended that the action for money had and received would not lie, upon the au- thority of Power v. W?.Us,(f) and Weston v. Dnwnes,{g) because this was no other than a mode of trying the warranty, which could only be by a special action on the case. It had occurred to me at the trial, that the defendant, by means of his promise to return the money and take back the horse if it were unsound, had placed himself in the situation of a stake-holder; and therefore, that on proof that the horse was unsound, he was to be considered as holding the money for the use of the plaintiff. But upon further consideration, I am clearly satisfied that the promise did not discharge the original warranty, and that the party complaining of the breach of that warranty must still sue upon it. The second conversation is not to be considered as an abandonment of the original warranty, the performance of which the defendant still insisted upon ; but rather as a declaration that if the warranty were shown to be broken, he would do that which is visually done in such cases, take back the horse and repay the money. Then where any question on the warranty remains to be discussed, it ought to be so in a shape to give the other party notice of it, name- ly, in an action upon the warranty." So, in the case of Cooke v. Munstone,(h) which was an action of assump- sit. And the first count of the declaration was for not delivering 35 chaldrons of soil or breeze according to a special contract between the defendant and the plaintiff ; to which the count for money had and received was added. At the trial, before Sir James Mansfield Ch. J., the plaintiff in support of the special contract proved by a witness, that the defendant having agreed to supply the plaintiff with 35 chaldrons of soil at 7s. per chaldron, he thereupon paid to the defendant 21. 5s. as earnest ; that the plaintiff afterwards sent his barge and demanded the soil, offering at the same time to pay the remainder of the purchase money as soon as the soil *should be put on board, but that the de- fendant refused to deliver it on account of a dispute with the plaintiff respec- ting the wharf from whence it should be loaded. It appearing, however, that soil and breeze were very different things, it was objected for the defendant, that as the plaintiff had declared upon a contract for the delivery of soil or breeze, and had only proved a contract for the delivery of soil, he must be non- suited ; whereupon the plaintiff insisted that he was entitled for a verdict for 21. 5s., on the count for money had and received. His Lordship thought that as the plaintiff had proceeded upon a contract which never appeared to have been rescinded by any act or agreement between the parties, but only broken by a refusal of one party to perform it, he was not at liberty to recover the de- posit upon the count for money had and received, and accordingly nonsuited the plaintiff: and of this opinion was the Court of Common Picas upon a ride for setting aside the nonsuit. So, in the case of Fortune v. Lingkam,(i) it was held, that if upon a con- (/) Ante, 320. (h) 1 New Rep. C. B. 351. («•) Ante, 320. (0 2 Cainpb. 416. 40 # 322 322 On Promises To Pay Over Money [Part II. tract for the sale of a quantity of stock fish to be delivered according to sam- ple, and the price is paid for them ; and the seller afterwards delivers them much inferior to the sample, and in a very bad and putrid state, but they are accepted by the buyer ; the latter cannot maintain an action for money had received to recover back the fine so paid, but must declare specially upon the warranty. And in this case Lord Ellenborough Ch. J. said, " If, instead of stock fish, the defendant had delivered to the plaintiff a quantity of saw-dust, the price might be recovered back in the manner proposed. But stockfish were delivered, though seemingly in very bad condition; and you cannot be permitted to try whether they were of a good or bad quality, whether they were fit or unfit for use, in an action for money had and received. For this purpose a special count was indispensable." 3. Of Money Paid in Consideration of some Act to be done or other Benefit to be Received but which has Failed.] — : Where a per- son has paid money upon a contractor agreement, which lias not been perform- ed, he may, in general, affirm the agreement, by bringing a special action of assumpsit thereon for general damages ; or he may disaffirm it, and recover back the money so paid by action of indebitatus assumpsit for money had and receiv- ed. This was settled in the case of Dutch v. Warr en,(k) which was an ac- tion of indebitatus assumpsit for money had and received. The case was as fol- lows ; — Upon the 18th August, 1720, on payment of 262?. 10s. by the plaintiff to the defendant, the defendant agreed to transfer him five shares in the Welch cop- per mines at the opening of the books ; and for security of his so doing gave him this note : — " 18th of August, 1720. I do hereby *acknowledge to have re- ceived of Philip Dutch, 262?. \0s. as a consideration for the purchase of five shares; which I do hereby promise to transfer to the said Philip Dutch as soon as the books are open ; being five shares in the Welch copper mines. Witness my hand, Robert Warren. 1 ' The books were opened on the 22d of the said month of August, when Dutch requested Warren to transfer to him the said five shares, which he refused to do, and told the plaintiff he might take his remedy. Whereupon the plaintiff brought this action for the consid- eration money paid by him. And a case being made for the opinion of the Court of Common Pleas, the action was resolved to be well brought ; and the Court said, " that the extending these actions depends on the notion of fraud. If one man takes another's money to do a thing, and refuses to do it, it is a fraud ; and it is at the election of the party injured, either to affirm the agree- ment, by bringing an action for the non-performance of it ; or to disaffirm the agreement ab initio, by reason of the fraud, and bring an action for money had and received to his use." So, in the case of Giles and others v. Edwards, (m) which was an action for money had and received, tried before Mr. Justice Lawrence at the spring as- sizes for Shrewsbury, 1797. The case was as follows : On the 6th of Jurie, (k) Cited at large by Lord Mansfield, in not so correctly. 2 Bur. 1010. and reported in Stra. 406.' but (m) 7 Term Rep. 181. *323 Chap. 4.] Had and Received to the Use of Another. 323 1791, the defendant agreed to sell to the plaintiffs all his cordwood growing at Trcdgodocr in Shropshire at 11 s. 6d. per cord, ready cut; the wood was to be coaled and cleared from off the premises by Michaelmas, 1792, and the money was to be paid on the 1st of March, 1792. It also appeared, that the custom was for the seller to cut off the boughs and trunks, and then cord it, and for the buy- er to re-cord it ; after which it became the property of the buyer : the defend- ant cut sixty cords, ten of which he corded, and the plaintiffs re-corded half a cord, and measured the rest. On the 8th of March, 1792, the plaintiffs paid the defendant 20 guineas, but the defendant neglecting to cord the rest of the wood, the plaintiffs brought this action to recover back the 20 guineas, as hav- ing been paid on a contract that had failed. It was objected on the trial that this action could not be maintained, the contract being still open, and that the plaintiffs should have brought a special action on the case for non-performance of the contract. But the learned judge was of opinion that, as it was owing to the fault and negligence of the defendant that the contract, which was entire , was not carried into execution, the plaintiffs were at liberty to consider the con- tract at an end, and recover back the money that they had paid, the considera- tion having failed. That what had been done by the plaintiffs could not be considered as an execution of the contract in part, for that all that they had done was merely to measure the wood, and re-cord a very small part of it. The plaintiffs accordingly obtained a *verdict. And upon a rule to set aside this ver- dict, and to enter a non-suit, the court were clearly of opinion, that the direc- tions given at the trial were right ; and Lord Kenyon Ch. J. said, " This was an entire contract, and as by the defendant's default, the plaintiffs could not perform what they had undertaken to do, they had a right to put an end to the whole contract, and to recover back the money that they had paid under it ; they were not bound to take part of the wood only." There are, however, a class of cases in which it has been determined, that though the contract has not been performed, and the party paying the money has derived no benefit from the contract, and the consideration has failed, the money cannot be recovered back. Thus, where A. having obtained a patent for an invention, of which he supposed himself the inventor, agreed to let B. use it upon payment of a certain annual sum secured by bond ; this sum was paid for several years, when B. discovering that A. was not the inventor, but that it was in public use before A. obtained his patent, brought an action for money had and received to recover back the amount of the annuity paid. But it was determined that B. could not recover back the amount of the annuity so paid ; both parties having acted under a mistake, and B. having had the use of the invention. (n) So, in the case of Cartwright v. Rmi}!ci/,(o) which was an action of assump- sit for money had and received. The plaintiff was a patentee of a steam- engine, and had employed the defendant, who was an engine maker, to make (»i) Tayler v. Hare, 1 New Rep. 260. (o) 2 Esp. Rep. 723. *334 324 On Promises To Pay Over Money [Part II. some engines for him under the patent : in the progress of the work the plain- tiff had advanced several sums of money to the defendant, which he sought now to recover back on the ground that the defendant had been so inattentive to the order, and so long in completing the engines, that the opportunity of dis- posing of them was lost, so that they became useless to the plaintiff. The ground relied upon, to establish the plaintiff's right to recover in this action, was, that the money was paid without any consideration, the work, for which it had been given, having been rendered by the defendant's own default, of no value to the plaintiff. But Lord Kcmjon Ch. J. said, " This action cannot be maintained, nor the money recovered back again by it ; it has been paid by the plaintiff voluntarily, and where the money has been so paid, it must be taken to be properly and legally paid ; nor can money be recovered back again by this form of action, unless there are some circumstances to shew that the plaintiff paid it through mistake, or in consequence of coercion." And in the case of Stokes v. Twitchen(p) which was an action of indebitatus assumpsit, brought to recover back 601. advanced by the plaintiff to the defend- ant, as a premium or apprentice-fee with her son upon *an indenture of appren- ticeship, which did not contain any statement respecting the premium, and was not stamped ; and the indenture being void for want of such statement, and al- so as not having been stamped within time : it was determined by the Court of Common Pleas, that the plaintiff could not recover back the apprentice-fee from the defendant, though paid without consideration, the indenture being void. And Gibbs Ch. J. said, "This was an action in which the plaintiff sought to re- cover the sum of 60Z., paid as a premium with her son to the defendant, under an indenture of apprenticeship, on the ground that the premium was not inserted in the indenture, and, that therefore the indenture was void, and the money paid without consideration. Supposing the plaintiff to be an innocent party, she would certainly be entitled to recover the money so paid, as being paid without consid- eration ; but any plaintiff who seeks to recover on such grounds, must come into court with clean hands. It has been contended for the plaintiff in this case, that no imputation rests on her ; for that it was the master's duty to insert the pre- mium, on whom alone the legislature impose the penalty foi the default. This latter proposition is true, and if the case rested here, I should be of opinion that the plaintiff was entitled to recover ; but there are other circumstances in this case ; circumstances which deeply implicate the plaintiff in a collusion for the purpose of fraud. With the notice before her eyes, she executed the indenture without the insertion of the premium, and by her act endeavoured to give valid- ity to an instrument which had not that in it which the legislature has pre- scribed for giving effect to the provisions of the revenue. The legislature marks out the master alone for punishment ; but all are involved in the of- fence who lend assistance to the master in giving effect, as this plain- tiff has done, to unlawful purposes. In this case both the defendant and the plaintiff where parties to the offence. The former, by concealing from the ( P ) 3 Taunt. 402. •325 Chap. 4.] Had and Received to the Use of Another. 325 public and the revenue officer, the amount of the premium, and so defrauding the revenue ; the latter by enabling the defendant to conceal that amount from the revenue, whereby she was likely to find the defendant content with a less premi- um than he might otherwise have been disposed to take. Under these circum- stances the plaintiff cannot be considered as an innocent party ; and we are of opinion that she is not entitled to recover." So, in the case of Dewberry v. Chapman, (p) which was an action of indebi- tatus asswnpsit for money had and received, where the defendant had taken the plaintiff's son apprentice, and received 30/., and had engaged to teach him the trade of a goldsmith, and make him free of London ": the defendant, however, was a foreigner, and though he had been bound to a freeman, yet by the custom of London no apprentice *can have his freedom without an actual service with a freeman. It was ruled by Holt Ch. J., "That an indebitatus assumpsit would not lie, the defendant having cheated the plaintiff of his money, and that the plaintiff had no remedy, unless by special action on the case for not making him a freeman." If, upon an agreement to carry a passenger on board a ship, from London to the Wat Indies, the passage money is to be paid in Londan before the commencement of the voyage ; and the passenger puts his baggage on board in the Thames, meaning himself to embark at Portsmouth ; and the ship is lost in going round to that place ; the passage money cannot be recovered back. But if the agreement was to carry the passenger from Portsmouth to the West Indies, it might have been recovered back ; and the learned Ch. J. Gibbs in such case said, " If the voyage was commenced, and the ship was prevented completing it by perils of navigation, the captain may be entitled to retain the passage money previously paid to him. The contract for this purpose may ei- ther be express, or may be evidenced by established usage. Here it is proved, that in West India voyages, the passage money is paid before the voyage commences, and it does not appear to be returned, although the voyage is de- feated. On the other hand, if the ship was lost before the commencement of the voyage, for which these parties had contracted, the money paid by anticipation must be returned." (q) So, in the case of Dc Silvale v. Kendall, (r) which was an action for money had and received. And at the trial, it appeared, that in a charter party made between the master of the ship and the freighter, upon a voyage from Liver- pool to Maranham, and thence back to Liverpool, the freighter covenanted that he would pay for the freight from Liverpool to Maranham 120/., and from Maranham to Liverpool at the rate of 2 l-2d. per lb. for cotton, which should be delivered at Liverpool ; such freight to be paid as follows, viz., 120/. for freight of the outward cargo to Maranham, and as much cash a3 might be found necessary for the vessel's disbursements in Maranham, to be advanced by the (jj) Comb. 311. Holt's Rep. 35. S. C. (') 4 Maulc &. Sel. 37. (q) Gillan v. Simpkin, t Campb. 241. *326 325 On Promises To Pay Over Money [Part II. freighter, his agents, or assigns to the master, when required, free from interest and commission, at the current exchange of the place; and the residue of such freight to be paid on delivery of the cargo in Liverpool. The ship arrived at Maranham, where the 120/. outward freight, and also 192/. for the necessary disbursements of the ship, were paid or advanced by the freighter to the mas- ter ; and the ship received her homeward cargo and sailed for Liverpool, but was lost by capture. The Court determined, that the freighter was not entitled to recover back the 192/. And Bayley Just, said, " Wherever there is an ex- press stipulation that the party who is to be entitled to freight, shall be paid any portion of *it in advance, there ought also to be an express stipulation that the party paying it shall be entitled to recover it back, if freight be not earned, if such be the intention of the parties to the instrument. For without some provision of that sort how are we to raise a new implied contract to that effect ? It seems clear, that the parties to this instrument have stipulated for a partial payment in advance by way of freight, and not as a loan ; for after settling the amount and rate of freight to be paid for the voyage out and home, they stipulate that such freight shall be paid as follows, that is, the outward freight to Maranham, and as much cash as should be necessary for the ship's disburse- ments in Maranham, to be advanced by the freighter when required, free from interest and commission, at the current exchange of the place, and the residue of such freight on the delivery of the homeward cargo. Therefore, taking the whole of the clause together, it seems to me, that this payment is to be considered as a payment of so much of the freight in advance. And if that be so, upon what ground is it to be recovered back ? It is suggested as a ground, that the freight has failed by the non-performance of the voyage ; and thus the plaintiff has derived no benefit from it ; but what benefit has the defendant derived ? He also has lost as well as the plaintiff, and the question is, whether he is to bear a farther loss ? Now in order to maintain money had and receiv- ed, it is in general incumbent upon the plaintiff to shew, that the defendant has money of the plaintiff', which in equity and good conscience he ought not to detain from him. But here the question raised is not whether the defendant has money which he ought not to detain, but whether out of his own money he shall be bound to make good that which the plaintiff has lost. It seems to me that the defendant shall not be so bound. But in the case of Robinson v. Anderton,(s) which was also an action of assumpsit for money had and received. The plaintiff had succeeded the de- fendant in a public-house, and paid him for some fixtures which belonged to the house, as being scheduled in the original lease, and for which the plaintiff was afterwards obliged to pay the lessor. The defendant had been under tenant of the house, and had paid the person of whom he rented it for these very fixtures. On behalf of the defendant, it was contended that this action could not be main- tained. The present defendant had himself paid for these fixtures, and of (s) Peake Cas. N. P. 04. "327 Chap. 4.] Had and Received to the Use of Another- 327 course thought he was entitled to sell them, and as he did not commit any fraud on the plaintiff, he could not, in this action, be compelled to refund the money. Lord Kenyon Ch. J., before whom the cause was tried, said, " This action imputes nothing criminal to the defendant ; his title is disaffirmed, for it appears he has received money which he had no right to, and which he must there- fore return. He may recover back the money from *the person to whom he paid it, and, perhaps, tax the costs of this judgment to it." Lastly. — Of Money Received on the Sale of Annuities, where a good Title cannot be made, or where the Deeds have been set aside or put an End to by Agreement or otherwise.] — Where the vendor of an annuity engages that a good title shall be made to the vendee on a particular day, he must be prepared to produce his title deeds at the particu- lar day, or the vendee is entitled to rescind the contract, and recover back his deposit money in an action of indebitatus assumpsit for money had and receiv- ed. Thus, in the case of Berry v. Youvg,(t) which was an action for money had and received, and brought to recover back the deposit money paid by the plaintiff, who was the purchaser of an annuity sold by the defendant (an auctioneer) at a public auction. One of the conditions of sale was, that a good title should be made out by the 10th of July. In the beginning of July the plaintiff called on the seller of the annuity, to show him the title deeds : but he not having them in possession, gave him an abstract of the title, which did not contain any of the deeds. At the trial, before Lord Kenyon Ch. J. it was submitted to his lordship, that application ought to have been made to the vendor at an earlier period, in order to enable him to get the deeds by the 10th of July. But his lordship said, " A seller of an estate ought to be prepared to produce his title deeds at the particular day : a court of equity, indeed, will under particular circumstances, enlarge the time, but then those circumstances entitling him to such indulgence must clearly appear ; which is not the case in this instance. It is, however objected, that the plaintiff had no right to the possession of those deeds ; but though he had no right to keep them, he had a right to inspect them. A court of equity would have obliged the vendor to give attested copies of the deeds at his own expense, with an undertaking to produce them thereafter at the vendee's expense, for the support of his title. As the seller, therefore, has here failed in completing his engagement, the plaintiff is entitled to a return of his deposit money." So, where the consideration of an annuity consists partly of money actually paid, and partly of a precedent debt for goods bona fide sold to the grantor ; and the annuity is set aside by the court, at the instance of the grantor, for some mistake in not complying with the formal requisites of the annuity act, (17 Geo. 3. c. 26.,) and not on account of any fraud in the transaction, the grantee may recover back the consideration in an action of indebitatus assumpsit for money had and received, and goods sold and delivered. Thus, in the case of (0 Sittings after Mich. Term, 1783. 2 Esp. Rep. 640. n. a. *328 328 On Promises To Pay Over Money [Part II. Shove v. Webb,[u) which was an action of indebitatus assumpsit for goods sold and delivered, and *money had and received. On the trial, a verdict was tak- en for the plaintiff, damages 160/. 17s. 3d., subject to the opinion of the Court as to the sum of 118/. 17s. 3d. part thereof on the following facts : The de- fendant on the 26th of July 1783, executed a bond and warrant of attorney to con- fess judgment thereon in the court of Common Pleas, for securing an annuity of 25/. during the life of the defendant. The defendant also executed an assignment of his half pay as an ensign in the army as a collateral security. The deeds for securing the annuity were afterwards set aside in the Common Pleas, be- cause part of the consideration, for which the annuity was granted, was 46/. 19s. 9(7. due from the defendant to the plaintiff for goods previously sold by the plaintiff to him, which was not specified in the memorial as registered. The residue of the consideration, for which the annuity was granted, was 71/. 17s. 6d. paid by the plaintiff to the defendant in cash at the time of granting the annuity. The defendant was indebted to the plaintiff in 42/. for goods sold. And the question for the opinion of the Court was, whether the plaintiff was entitled to recover any and what sum beyond the 42/. And after argu- ment, the Court determined, that the plaintiff was entitled to recover for his whole demand. And Ashhurst Just., in delivering the opinion of the Court, said, " The contract was strictly legal, and not within the mischiefs intended to be remedied by the annuity act. And the security was not set aside on ac- count of any fraud or defect in the contract itself, but upon a formal defect in makincr the memorial, or at least it was an innocent mistake of the law. And taking that to be the case, when the security was vacated, the original contract revived. If indeed the sale had been made a few days before, colour- ably, and with a view of afterwards stating the antecedent debt as a part of the consideration of an annuity intended to be granted, that would have totally al- tered the case ; but as it is to be taken that they were lona fide sold, we think the plaintiff is entitled to recover for them. In regard to the money paid as part of the consideration ; as the security is not set aside for any fraud in the transaction, but merely for a mistake or omission in form, it becomes unconsci- entious in the party to retain it ; and is therefore recoverable on the count for money had and received to the plaintiff's use." So, where the grantor of an annuity applied to have it set aside on motion, and to vacate a judgment, which had been irregularly entered up on a warrant of attorney, which was given for entering up judgment on a bond in another court to secure the annuity, and which warrant of attorney was improperly de- scribed in the memorial ; and the Court accordingly set aside the judgment : it was determined, that the grantee might recover back the consideration money in assumpsit, and was not put to his action on a bond which was also given for securing the annuity, and which bond was not ordered to be cancelled, though voidable *in pleading by virtue of the annuity act. Thus, in the case («) 1 Term Rep. 732. *329 *330 Chap. 4.] Had and Received to the Use of Another- 330 of Scurfield v. Gowland,(v) which was an action of assumpsit for money had and received. At the trial, it appeared that the defendant had granted to the plaintiff a certain annuity secured by a deed, a bond, and warrant of attorney to enter up judgment in the Common Pleas ; but in the memorial of the annui- ty the latter instrument was stated to be a warranty of attorney to enter up judgment in the Court of King's Bench, and judgment having afterwards been entered up by mistake in the Court of King's Bench, the defendant had applied to set aside the annuity upon this error in the memorial, and to have the secu- rities delivered up to be cancelled. And the Court of King's Bench did ac- cordingly set aside the judgment, and direct that the warrant of attorney should be delivered up to be cancelled, but made no order as to the deed or bond, which remained uncancelled : nor was there proof of any offer having been made by the plaintiff to the defendant to deliver up or cancel them. This ac- tion was brought to recover back the consideration money, upon the ground of the consideration for the annuity having failed. But it was objected at the trial that the action of assumpsit would not lie, the plaintiff still having his remedy upon the bond and deed : and on this ground the plaintiff was nonsuited. But afterwards a motion was made to set aside the nonsuit ; and the counsel for the plaintiff contended, that the decision of the court, upon the application of the defendant, was not merely that the judgment should be vacated, but that the annuity itself should be set aside ; that the defendant then made his election to vacate the annuity ; and having at least withdrawn from the plaintiff one of his securities for it, the consideration, which was paid for all the securities, had failed, and therefore he was entitled to recover it back. The court, was of this opinion, and accordingly set aside the nonsuit, and granted a new trial. And IiOrd Ellenborough Ch. J. said, " The argument last urged is very forcible. The plaintiff contracted for one entire assurance, consisting of several securi- ties ; and he has a right to have that assurance entire, or to have back his mo* ney. The defendant has taken away one of his securities, and therefore the consideration for the money has failed. On this ground I think the present ac- tion may be sustained ; and to be sure the substantial justice of the case is all on the plaintiff's side ; though that ought never to be attained by violating the forms of law ; but on the latter ground I think it may be attained without any such violation." But where an annuity has become void for a defect in the memorial, the grantee cannot maintain an action for money had and received to recover back the consideration money, unless the annuity has been set aside by the act of the court, or the grantor has refused to re-execute *valid securities, or to pay the annuity. Thus, in the case of Wedded v. Lynam and Jones,(w) which was an action of assumpsit for money had and received, brought to recover the sum of 570Z. which had been paid by the plaintiff to the defendants, as the consideration of an annuity granted by them for the life of Jones. The me- (p) 6 East Rep. 241. (w) 1 Esp. Rep. 309. 41 *3«U 331 On Promises To Pay Over Money [Part II. morial of this annuity not having been duly registered, in pursuance of the stat. 17 Geo. 3., the annuity was void under that statute, and the action was brought to recover back the consideration money paid for it. The plaintiff proved the payment of the consideration money. The counsel for the defend- ant made two points : 1st. That supposing the plaintiff to be entitled to recov- er, the defendant was entitled, under the issue in the cause, to an allowance of all payments made on account of the annuity, and of all expences incurred on it; and Lord Kenyan Ch. J. ruled that he was so. But, 2dly., he contended that this annuity having become void by the act of the plaintiff himself, and there being no evidence of any demand of the arrears of the annuity from the defendants, and a refusal by them to pay them, or any application to them to re-execute the securities, which they might have done, the plaintiff could not raise a cause of action by his own act, or by reason of his own negligence or default. The counsel for the plaintiff answered, that the securities having be- come void by act of law, the statute having declared all annuities absolutely void, the memorials of which did not comply with the statute, the plaintiff was at liberty immediately to have recourse to his action, to recover back the con- sideration. But Lord Kenyon Ch. J. said, " that it should not be in the power of the grantee of an annuity, by his own act or negligence, to rescind the contract, and avoid the security given, at his option; that as there was no evi- dence of any application to the defendants, either for payment of the annuity, or to re-execute the securities, and as the annuity had never been set aside by an act of the Court, he was of opinion that the action could not be maintained." The plaintiff was accordingly nonsuited. So, in the case Richards v. Borrctt,(x) which was also an action of assump- sit for money had and received, it appeared in evidence, that the defendant be- ing in the Fleet Prison, and distressed for money, had applied (by means of one Bryant, an attorney,) to the plaintiff for a loan. The plaintiff lent him some money, and took from him a bond and warrant of attorney, to secure an annuity. Shortly after, the defendant applied through the same channel to the plaintiff to borrow more money ; the plaintiff required a further security than a bond and warrant of attorney ; and the defendant deposited with him the lease of a farm in Kent, which he represented as unincumbered ; and it was endeav- oured to be proved that he meant to charge this real property with payment *of an annuity for the latter sum advanced ; but the defendant's counsel assert- ed that it was only deposited with a view to secure the payment of the rent by the tenant in discharge of the annuity. The proof not coming up exactly to that point, Lord Kenyon Ch. J. said, " It had been held in equity that depositing all, or even part of the deeds respecting real property, implied an intention of charging the real estates, and gave the party a lien upon them ; and that as this was an equitable action, he would hold the same doctrine. No memorial of the first annuity had been registered, nor had any deed to charge the real property (.r) 3 Esp Rep. 102. ♦332 Chap. 4.] Had and Received to the Use of Another, 332 with the second annuity been registered ; and the annuity having been in arrear, the present action was brought to recover the consideration money." No ap- plication had been made to the court to set aside the first annuity ; and for the defendant it was contended, that the securities were only voidable ; and that being still in existence, the present action could not be maintained. Lord Ken- yon Ch. J., thought that the objection was wejl founded with respect to one an- nuity ; and said, "The party should be called upon to complete the securities; and those for part having been completed, as far as the party had been called upon, they must be considered as valid, until set aside by the court : but, with respect to the other, the defendant not having done, or being unable to do that which he had undertaken, namely, to charge the real estate, the plaintiff was entitled to recover the consideration money of that annuity." Where an annuity has been paid for some time, and then rescinded by agreement of the parties, on account of the deeds not having been properly enrolled, the purchaser is entitled to recover back the whole of his purchase money. Thus, in the case of Beauchamp v. Borrctt.,(y) the plaintiff having purchased an annuity of the defendant, which was void on account of the deeds not being enrolled, it was agreed, after two yearly payments had been made, that the annuity should be rescinded ; and that the defendant should pay to the plaintiff the money paid for the purchase of the annuity, with interest from the last yearly payment. The sum paid for the purchase was 6001. The annuity was 100/. per annum; and the only question in the cause was, whether, under this agreement, (which was contained in a letter from the defendant) the plantifT was entitled to recover the whole 600/. with interest from the time of the last payment, or whether the 200/. which had been paid should be deducted. Lord Kcnyon Ch. J. was of opinion, that both under the agreement, and ac- cording to the justice of the case, the plaintiff was entitled to recover the whole 600/. and interest, from the time of the last yearly payment ; and the jury gave damages accordingly. But where an annuity has been set aside on account of a defective 'registry, and the grantee brings an action for money had and received, to recover back the consideration money paid for the annuity, the grantor may set off the pay- ments made in respect of such annuity, though for more than six years, unless the plaintiff reply the statute of limitations. This was settled in the case of Hicks v. Hicks, (z) which was also an action of assumpsit for money had and received, to recover back 711/., the consideration money paid, many years back, for an annuity granted by the defendant to the plaintiff ; but which annu- ity, after having been paid several years, (more than six) had been recently set aside by the court, on the application of the defendant, for a defect in the memorial of registry. The defendant pleaded a set-off of more money paid to the plaintiff's use than was due to him : and this appeared at the trial to be (y) Peake's Case, N. P. 109. C. reported by the name of Hills v. Hills, (x) 3 East Rep. 16. 4 Esp. Rep. 196. S. *333 333 On Promises To Pay Over Money [Part II. true, provided the defendant was at liberty to set off all the payments which had been made to the plaintiff in respect of the annuity for more than six years past ; which Lord Ellenborough Ch. J. held that he might, the plaintiff not having replied the statute of limitations ; upon which a verdict passed for the defendant. And the Court afterwards, upon a motion to set aside the verdict, confirmed his lordship's opinion. So, in the case of Water s v. Sir William Mansell, Bart., (a) it was deter- mined, that to entitle the grantee of an annuity to recover back the price, as money had and received, it is sufficient if the grantor has communicated to the grantee, that there are defects in the memorial, and has treated for a com- promise on the ground of the annuity being void, although the grantee neither demands payment of the arrears, nor tenders new securities, nor delivers up the old ones before he sues ; and although the grantor has taken no active measures to set aside the securities. In the case of Straton v. Raslall,(b) it was determined, that a person who merely lent his name as a surety for the due payment of an annuity, and who received no part of the consideration money, is not liable to be sued for any part of it, after the annuity deeds have been set aside, though he may have formally acknowledged the receipt of the money on the back of the deeds. 10. OF FEES RECEIVED BY COUNSEL, &c. No action will lie to recover back a fee given to a barrister to argue a cause which he did not attend. This was determined in the case of Turner v. Phil- lips, (c) which was an action of indebitatus assumpsit for money had and re- ceived. The plaintiff being a party in a former cause, had *given the defen- dant a brief to attend as one of his counsel on the trial of that cause ; and the defendant not having attended the trial, the present action was brought to re- cover back the fee given to him on that occasion. Lord Kenyon Ch. J. advised an agreement between the parties, saying, that whether Mr. Phillips would choose to return the fee or not, was for his own consideration, but if the cause was to proceed he should feel himself obliged to interpose, and the parties might apply to the court if they were dissatisfied with his opinion. His lordship alluded to the case of Charley v. Bolcot,(d) lately decided, and mentioned the general opinion of the profession, that the fees of barristers and physicians were as a present by the client, and not a pay- ment or hire for their labour. The cause was accordingly settled out of Court. 11. OF PREMIUMS RECEIVED ON MARINE INSURANCES. In cases of insurance, the risk or peril insured against is the consideration for which the premium is paid. But where no risk has been run, the consider- («) 3 Taunt. 56. (c) Pcake's Cas. N. P. 122. (b) 2 Term Rep. 36fl. (J) 4 Term Rep. 317. *334 Chap. 4.] Had and Received to the Use of Another. 334 ation for the premium fails, and an action of indebitatus assumpsit will in gen- eral lie to recover it back from the underwriter. And the reason given is, that a policy of insurance is a contract of indemnity ; the underwriter receives the premium for running the risk of indemnifying the insured ; and therefore if he run no risk, to whatever cause, except fraud, this may be imputable, the consi- deration for which the premium was paid to him fails, and he ought to return it.(e) So, if the contract be void on account of a non-compliance with any warranty, express or implied, as if the ships do not sail on the day prescribed, or do not depart with convoy, or be not sea-worthy, and there be no fraud im- putable to the insured, he shall be entitled to a return of premium, because the contract never attached, and the risk therefore never commenced, (f) So, if the insurance be upon a voyage which is divisible into several distinct risks, which are, in effect, several distinct voyages, the premium may be appor- tioned according to these several risks ; and in case one or more of those risks should not have been commenced, the proportion of premium applicable to those parts shall be returned. (g) But if the risk be entire, and be once com- menced, it is a general rule, that there shall be no return of premium. And the shortness of the time when the thing insured was put in risk, affords no ground for a return of any part of the premium ; for it becomes the absolute property of the insurer the moment the risk commences, though it should cease the moment after. (A) So, if where the insurance is for a term specified in the policy, and for *one entire premium, if the risk be begun, and an event happen immediately after, which determines the contract, there shall be no return of premium, (i) It is observed,(A) that clauses are frequently inserted in policies of insurance that, upon the happening of a certain event, or the performance of some stipu- lation, the underwriter shall return a part of the premium ; and in such a case, if the event happens, or the thing stipulated be performed, the insured shall be entitled to the return of premium agreed upon. And as a general rule it is said,(*) that if through a mistake, misinformation, or any other innocent cause, an insurance in a single policy be made without any interest whatsoever in the thing insured, or to a much larger amount than its real value ; in the one case the insurer shall return the whole premium ; in the other he shall return in the proportion which the true value bears to the sum insured. Thus, if a man, supposing he has goods on board a certain ship to the value of 1000/., insure to that amount, but afterwards find either that he has no goods at all on board, or that he has goods only to the amount of half the insurance : in the one case he would be entitled to a return of the whole premium ; in the other, to a return of the moiety. And all the underwriters upon a policy in which the effects are insured beyond their value, must bear any loss that may happen, and repay a part of the premium, in proportion to (e) Cowp. 6GS. Per Lord Mansfield. (t) Cowp. 666. (/) 2 Marsh, on Insurance, G51. 2 Ed. (/.-) 2 Marsh. 639. (ff) SBur. 1237. (*) Ibid. 669. Lh) 2 Marsh. 661. V ' *335 835 On Promises To Pay Over Money [Part II. their.rcspective subscriptions without regard to the priority of their dates. But upon a wager policy, which by the stat. 19 Geo. 2 c. 37. is illegal and void, the insured cannot recover back the premium after the risk has been run : for he shall not after thus taking the chance of a loss, and of obtaining from the gener- osity at least of the underwriters, the sum insured, be permitted to recover back the premium. (/) So, where the insurance is upon an illegal trading, the insured cannot recover back his premium, (m) 12. OF MONEY PAID AND RECEIVED UNDER A MISTAKE ; OR IN IGNO- RANCE BOTH OF THE LAW AND OF THE FACT : AND OF VOLUN- TARY PAYMENTS MADE BY A PARTY EITHER WITH FULL KNOW- LEDGE OF ALL THE CIRCUMSTANCES ; OR, HAVING THE MEANS OF SUCH KNOWLEDGE AT THE TIME, OMIT MAKING DUE ENQ.UIRY, &c. INTO THE CIRCUMSTANCES, UNDER WHICH THE CLAIM IS MADE. If a person pays money to another under a mere mistake of fact, or in igno- rance of the law, and without full knowledge, or having the *means of such knowledge, of the circumstances attending the claim, an action of indebitatus assumpsit will in general lie to recover it back, [n) So, if two reckon togeth- er, and one overpays the other, indebitatus assumpsit lies for the money so paid.(o) So, where goods are shipped from abroad, consigned to a merchant in this country, the freight is payable according to their net we'ght as ascer- tained at the king's landing scales, and not according to the weights expressed in the bill of lading, unless there be a special contract so to pay for them ; and therefore if the consignee, in order to get the goods delivered to him, pay more than the net weight amounts to, he may recover back the surplus in an action for money had and received, (p) But if a person with knowledge of the facts, though under a mistake as to the law, pays over money to another, who claims it as a right, he cannot, upon discovering what his legal right was, recover it back, supposing there is nothing against conscience in the other party's retaining it. This point was very fully discussed and determined in the recent case of Sir Charles Brisbane, Knt. v. Dacres,(q) where the captain of a king's ship having brought to England pub- lic treasure upon the public service, and treasure of individuals in his ship for his own emolument ; and received freight for both, and having paid over one third of it, according to a usage heretofore established in the navy, to the admi- ral under whose command he sailed. But afterwards discovering that the law does not compel captains to pay to admirals one-third of the freight ; the cap- tain brought an action for money had and received, to recover it back from the admiral's executrix: the majority of the Court of Common Pleas (Mr. Justice (0 Lowry v. Bourdieu, Doug. 451 . showing in what instances the Premium may (m) 2 Marsh, on Insurance, 645, 64G. And or may not be recovered back. see more at large on the subject of a Return (n) 1 Salk. 22. 2 Bl. Rep. 825. of Premium, chap. 15. in the same book, and (o) 2 Ld. Raym. 1217. Park on Insurance, chap. 19. where all the (p) Gereddes v. Domson, Holt N. 1 . 34b. cases are collected and brought together, (g) 5 Taunt. 143. * 33G Chap. 4.] Had and Received to the Use of Another. 336 Chambrc dissenting) determined, that he could not recover back the private freight, because the whole of that transaction was illegal ; nor the public freight, because he had paid it with full knowledge of the facts, although in ignorance of the law ; and because it was not against conscience for the executrix to retain it. The Chief Justice Gibbs, in delivering his opinion, took a very elaborate review of the cases on this subject, and said, " where a man demands money of another as a matter of right, and that other, with a full knowledge of the facts upon which the demand is founded, has paid a sum, he never can recover back the sum he has so voluntarily paid. It may be, that upon a further view he may form a different opinion of the law ; and it may be, his subsequent opinion may be the correct one. If we were to hold otherwise, I think many inconveniences may arise ; there are many doubtful questions of law ; and when they arise, the defen- dant has an option, either to litigate the question, or to submit to the demand and pay the money. I think that *by submitting to the demand, he that pays the mo- ney gives it to the person to whom he pays it, and makes it his, and closes the transaction between them. He who receives it, has a right to consider it as his without dispute : he spends it in confidence that it is his ; and it would be most mischievous and unjust if he who has acquiesced in the right by such voluntary payment, should be at liberty, at any time within the statute of limitations, to rip up the matter and recover back the money. He who received it, is not in the same condition : he has spent it in the confidence it was his, and perhaps has no means of repayment. I am aware cases were cited at the bar in which were dicta that sums paid under a mistake of the law might be recovered back, though paid with a full knowledge of the facts ; but there are none of these cases which may not be supported on a much sounder ground. I think the dicta that go begond it, are not supported or called for by the facts of the cases. Bilbic v. Lumlcy,{r) I think is a decision to that effect. And for these reasons, I am of opinion the plaintiff is not entitled to recover." Chambre Just, said, " I concur in thinking the money is not recoverable on the payment of the private freight, whether the carriage of the treasure be considered as a legal or as an illegal transaction. If illegal, clearly the money cannot be recovered ; if it be legal, the right to carry it must arise from the permission of government ; and as the practice has been uniform for the admiral to receive his third part, we must take it that it is a part of the practice, and that the whole practice has had that assent of the government. As to the freight for the carriage of the public property, I think it stands on a different ground ; and that the action is maintainable. The plaintiff had a right to it, and the defen- dant in conscience ought not to retain it. The rule is, that when he cannot in conscience retain it, he must refund it, if there is nothing illegal in the transac- tion : the case is different where there is an illegality. I think there are suffi- cient authorities to say this person has paid this money in his own wrong, and that it may be recovered back. In the case of Bilbie v. Lumley, there was a (r) Post. 338. •337 387 On Promises To Pay Over Money [Part 11. letter said to have been concealed which ought to have been disclosed ; this letter was shewn to the under-writers, and they, after reading it, thought fit to pay the money. Now there the maxim volenti non fit injuria applies. In that case all argument was prevented by a question put by the Court to the counsel. I am not aware of any particular danger in extending the law in cases of this sort, for they are for the furtherance of justice ; neither do I see the applica- tion of the maxim used by Buller Just, in the case of Loicry v. Bourdicu, and cited by the Court in Bilbiev. Lumley, ignorant ia juris non excusat ; it applies only to cases of delinquency where an excuse is to be made. I have searched far to see if I could find any instance of *similar application of this maxim, but I can find none in which this has been so applied. I cannot see how it applies here. In Loicry v. Bourdieu, the decision turned on the transaction being ille- gal, and it being illegal, the maxim applied in pan delicto potior est conditio de- fendentis. In the case of Bize v. Dickaso?i,(s) Lord Mansfield held, that if a person has paid that which in conscience he ought, but the payment of which could not be compelled, it shall not be recovered back in an action for money had and received ; but that where a man has paid money under a mistake, which he was neither bound in law, nor called on in conscience to pay, he may recover it back. Now, the case against the plaintiff is not so strong as it has been stated. I do not find in the case that any demand was ever made of him, or any question mooted, upon which he thought it better to submit, than to liti- gate the point. No option ever presented itself to him ; and the maxim volen- ti non fit injuria does not apply. It appears to me that the justice of the case with respect to the freight of the public treasure is entirely with the plaintiff." Upon the subject of voluntary payments, the rule of law is, that where money is paid with full knowledge, or with full means of knowledge of the circumstan- ces attending the demand, the party is not entitled to recover back such pay- ment, though made without sufficient consideration. But if the money be paid without, such full knowledge, or means of knowledge, or if the party be induc- ed to pay it under false representations, he may recover back money paid under such circumstances. (t) Thus, in the case of Bilbie v. Lu?nlcy and others, (u) which was an action of assumpsit for money had and received, brought by an underwriter upon a policy of insurance, in order to recover back ] 001. which he had paid upon the policy as for a loss by capture to the defendants, the assured. The ground on which the action was endeavoured to be sustained was, that the money was paid under a mistake, the defendants not having, at the time of the insurance effected, disclosed to the underwriter (the present plaintiff) a material letter which had before been received by them relating to the time of sailing of the ship insured. It was not denied that the letter was material to be disclosed ; but the defence rested on before the Court, and at the trial, was, that before the loss on the policy was adjusted, and the money (*) ! Ter m Rep. 286. ( u ) 2 East Rep. 469. (0 Per Dallas Ch. J. 1 Brod. & Bing. 291. *338 Chap. 4.] Had and Received to the Use of Another. 338 paid by the present plaintiff, all the papers had been laid before the underwrit- ers ; and amongst others the letter in question : and therefore it was contended at the trial, before Rooke J. at York, that the money having been paid with full knowledge, or with full means of knowledge of all the circumstances could not now be recovered back again. On the other hand, it was insisted that it was sufficient to sustain the action, that the money *had been paid under a mistake of the law ; the plaintiff not being apprised at the time of the payment, that the concealment of the particular circumstance disclosed in the letter kept back was a defence to any action which might have been brought on the policy : and the learned judge being of that opinion, the plaintiff ob- tained a verdict. But, afterwards, upon a motion for a new trial, the Court of King's Bench determined that the plaintiff was not entitled to recover back the money ; it having been paid voluntarily with a full knowledge of the facts of the case: therefore the verdict was set aside. And Lord Ellcnborough Ch. J. asked the plaintiff 's counsel whether he could state any case, where if a party paid money to another voluntarily, with a full knowledge of all the fa^ts of the case, he could recover it back again on account of his ignorance of the law? No case being cited, his Lordship said, " The case of Chatfield v. Paxton(w) is the only one I ever heard of, where Lord Kenyon at Nisi Prius intimated something of that sort : But when it was afterwards brought before this court, on a motion for a new trial, there were some other circumstances of fact relied on ; and it was so doubtful at last on what precise ground the case turned, that it was not reported. Every man must be taken to be cognizant of the law; otherwise there is no saying to what extent the excuse of igno- rance might not be carried. It would be urged in almost every case." So, where a man has paid a debt which would otherwise have been barred by the statute of limitations ; or a debt contracted during his infancy, which in justice he ought to discharge, though the law would not have compelled the payment, yet the money being paid, it will not oblige the payee to refund it. But where money is paid under a mistake, which there was no ground to claim in conscience, the party may recover it back again by this kind of action, (a;) 13. OF COMPULSORY PAYMENTS MADE EITHER UPON A PLEDGE OF GOODS, OR FOR A FINE UPON ADMITTANCE ; OR UNDER LEGAL PROCESS ; OR UPON A THREAT OF AN ACTION, OR DISTRESS, &c ; OR UNDER MERE COLOR OF PROCESS. 1. Of Excessive Interest Paid upon a Pledge of Goods. J— If an un- due advantage be taken of a person's situation, and money be obtained from him by compulsion, such money may be recovered back in an action for money had and received. Thus, in the case of Astley v. Reynolds,{y) where the plaintiff having in the month of August pawned some goods with the defendant for 20/. (to) 2 East Rep. 471. n. a. 2 Bur. 1012. (z) 1 Term Rep. 236. 2 Bl. Rep. 825. (y) Stra. 915. 42 «389 340 On Promises To Pay Over Money [Part II. without making any agreement for interest, *went in the October following to redeem them, when the defendant insisted on having 10/. as interest for the 20?. The plaintiff tendered him the 20/. and 41. for interest, knowing the same to be more than the legal interest amounted to ; the defendant still insisted on having 10/. as interest, whereupon the plaintiff finding that he could not other- wise get his goods back, paid the defendant the sum which he demanded, and brought an action for the surplus beyond the legal interest, as money had and received to his use ; the Court held, that the action would well lie, for it was a payment by compulsion, and the plaintiff might have had such an immediate want of his goods that an action of trover would not have answered his pur- pose, and the rule volenti non fit injuria holds only where the party has a free- dom of exercising his will. 2. Of an excessive Fine Paid upon admittance to Copyhold premi- ses.] In the case of Leake v. Lord Pigot,(z) which was an action for money had and received by the defendant for plaintiff's use. On the trial it appeared that the plaintiff had purchased of one Sansom a copyhold estate in Patingham, which was defendant's manor. The estate was let at a gross rent of 60/. per annum, landlord paying landtax, chief rent, &c. The plaintiff applied at the next manor court to be admitted, and tendered 120/. for the fine (two years' rent) saying that no lord of a manor had a right to more than two years' value for a fine. Stevens (Lord Pigot's agent) refused to admit him unless he paid 10/. per cent, on the purchase money (1650/.) ; he said he durst not take the sum offered by plaintiff, nor would he suffer Mr. Jeffreys, the court-keeper, to admit plaintiff without payment of 165/. The plaintiff then paid the mon- ey demanded as a fine in order to procure admission, but said is was too much money ; and plaintiff afterwards applied to Lord Pigot himself, and to his agent in town, Mr. Partington, and offered to refer the matter of the fine to counsel. Lord Pigot said he would not return any part of the fine received, nor would he leave it to counsel. The defendant at the trial, insisted that 10/. per cent, on the purchase money was the customary fine in that manor ; and by estimating the estate, which was 100 acres, at 16s. 6d. per acre, made the two years' value amount to 165/. Yatfs J. said, " Fines were arbitrary formerly, the estate being held at the will of the lord ; but the law having now drawn the line, and copyhold estates being permanent, no more than two years' value can be taken. The lord has a right to two years' real intrinsic value of the land, and is not to be prejudiced by any collusive lease. It was necessary for the plaintiff to show, that he did not pay the fine voluntarily, but upon compulsion. The custom to take 10 per cent, on the purchase money, be it of ever so long a continuance, cannot bind ; the law having fixed the rate in another manner. *3. Of Money Paid under legal Process, &c] — Where money has been recovered by the judgment of a court having competent jurisdiction, the matter can never be brought over again by a new action : for until the judgment is set (s) Sel.Ni. Pri. 87.MSS. >3-10 *341 Chap. 1.] Had and Received to the Use of Another. 341 aside or reversed, it is conclusive, as to the subject matter of it, to all intents and purposes, (a) Therefore, money paid under the compulsion of legal process, though it be afterwards discovered not to have been due, cannot be recovered back. Thus, in the case of Mar riot v. Hampton, (b) where it appeared, that the defendant formerly brought an action against the present plaintiff for goods sold, for which the plaintiff had before paid, and obtained the defendant's re- ceipt ; but not being aide to find the receipt at that time, and having no other proof of the payment, he could not defend the action, but was obliged to submit and pay the money again, and he gave a cognovit for the costs. The plaintiff afterwards found the receipt, and brought this action for money had and receiv- ed in order to recover back the amount of the sum so wrongfully enforced in payment. But Lord Kenyan Ch. J. was of opinion at the trial, that after the money had been paid under legal process, it could not be recovered back again, however unconscientiously retained by the defendant. So, where an attorney brought an action against his client for the amount of his bill of costs, which the client paid ; but afterwards had the bill taxed by the proper officer ; and upon taxation, one half of the charges were struck out and disallowed ; upon which the client brought an action of indebitatus assumpsit for money had and received against the attorney, to recover back the amount so deducted and disallowed. But it was holden, that such an action would not lie ; the money having been paid under the compulsion of legal process, and the cli- ent not having, as he might have done, the bill taxed pending the action :(c) the plaintiff was accordingly nonsuited. A motion, however, was afterwards made for a rule to set aside the nonsuit, and for a new trial ; but Lord Kcnyon Ch. J. said, " I am afraid of such a precedent. If this action could be maintain- ed I know not what cause of action could ever be 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. I cannot therefore consent, even to grant a rule to show cause, lest it should seem to imply a doubt. It often happens that new trials are applied for on the ground of evidence supposed to have been discov- ered after the trial ; and they are as often refused : but this goes much further." The rule was accordingly refused. So, in the case of Brown v. MKinnally,{d) which was an action of assu?np- sit for money had and received. The plaintiff and defendant *being in the same line of business, entered into an agreement by which the defendant agreed to sell the plaintiff all his old iron, except bushel iron, which was of an inferior quality, at 9/. per ton. The iron he delivered was mixed iron of an inferior value, being part bushel iron, and charged the full value for the best sort : the plaintiff objecting to the charge, the now defendant brought an action for it. The plaintiff paid the full demand so made on him, at the same time telling the defendant, that he did it without prejudice, and meant to bring an action to re- («) Per Lord Mansfield, 3 Bur. 1009. (c) Gower v. Popkin, 2 Stark. 85. (6) 7 Term Rep. 269. 2 Esp. 546. S.C. (rf) 1 Esp. Rop. 279. Vide 1 Vin. Abr. 269. '311 342 On Promises To Pay Over Money [Part II. cover back the overplus so paid : and this action was accordingly brought for that purpose. But Lord Kenyan said, " That such an action could not be maintained. That to allow it would be to try every such question twice, for that the same legal ground that would entitle the plaintiff" to recover in the pres- ent action, would have been a good defence to the action brought against him by the present defendant ; at which time, and in which manner he should have proceeded : that money paid by mistake was recoverable in assvmpsit, but here it was paid voluntarily, and so could not be recovered under the circum- stances of this case." It has, however, been determined, that where money was recovered upon a judgment of a court of conscience, in consequence of a material part of the de- fendant's case having been rejected, which could not be gone into in that court, though from which it plainly appeared, that the plaintiff ought not in conscience and equity to have recovered the money ; the judgment in such case is not con- clusive, but the party paying the money under it, may recover it back again by action of indebitatus assumpsit. Thus, in the case of Moses v. Macferlan,(e) which was an action of indebitatus assumpsit for money had and received. The case, as it came out in evidence at the trial, was as follows : Moses (the plaintiff) had indorsed to the defendant, Macferlan, four several promissory notes made to Moses himself, by one Chapman Jacob, for 30.?. each, for value received, bearing date 7th of November, 1758 : and that this was done in order to enable the defendant, Macferlan, to recover the money in his own name, against Chapman Jacob. But previous to the now plaintiff's indorsing these notes, Macferlan assured him, " that such his indorsement should be of no prejudice to him :" and there was an agreement signed by Macferlan, where- by he (amongst other things) expressly agreed, " that Moses should not be lia- ble to the payment of the money, or any part of it ; and that he should not be prejudiced, or be put to any costs, or any way suffer by reason of such his in- dorsement." Notwithstanding which express condition and agreement, and contrary thereto, the present defendant, Macferlan, summoned the present plaintiff, "* Moses, into the Court of Conscience, upon each of these four notes, as the indorser thereof respectively, by four separate summonses. Whereupon Moses, (by one Smith, who attended the Court of Conscience, at their second court, as solicitor for him and on his behalf,) tendered the said indemnity to the Court of Conscience, upon the first of the said four causes ; and offered to give evidence of it, and of the said agreement, by way of defence for Moses in that Court. But that Court rejected this defence, and refused to receive any evidence in proof of this agreement of indemnity, thinking that they had no power to judge of it ; and gave judgment against Moses, upon the mere foot of his indorsement, (which he himself did not at all dispute,) without hearing his witnesses about the agreement, that he should not be liable : for the commis- (e) 2 Bar. 1005. 1 Bl. Rep. 219. S. C. this case did not satisfy Westminster Hal! at But see 2 H. Bl. 416, where it is said by Eyre the time ; that he never could subscribe trt Ch. J. " That the judgment pronounced in it ; it seemed to him to unsettle foundation 1 !/ * 343 Chap. 4.] Had and Received to the Use of Another. 343 eioners held this agreement to be no sufficient bar to the suit in their Court, and consequently decreed for the plaintiff in that Court, upon the undisputed in- dorsement made by Moses. This decree was actually pronounced in only one of the four causes there depending : but Moses's agent (finding the opinion of the commissioners to be as above-mentioned,) paid the money into that Court, upon all the four notes ; and it was taken out of Court by the now defendant, Macferlan, (the then plaintiff in that Court,) by order of the commissioners. All this matter appearing in evidence at the trial, there was no doubt but that upon the merits, Moses was entitled to recover back the money, and accord- ingly a verdict was given for him ; but subject to the opinion of the Court upon this question, whether the money could be recovered in that form of action, or whether an action ought to have been brought upon the special agreement only? The Court were unanimously of opinion, that the gist of the action was that the defendant, upon the circumstances of the case, was obliged, by the ties of natural justice and equity, to refund the money; therefore, that the plain- tiff might elect to wave any demand upon the foot of the indemnity for the costs he had been put to, and bring his action of indebitatus assumpsit to recover the 6/. which the defendant had unjustly received. Lord Mansfield Ch. J., in delivering the opinion of the Court, said, " It is most clear that the merits of a judgment can never be over-haled by an original suit either at law or in equity. Till the judgment is set aside or reversed, it is conclusive, as to the subject matter of it, to all intents and purposes. *But the ground of this action is consistent with the judgment of the Court of Conscience ; it admits the commissioners did right. They decreed upon the indorsment of the notes by the plaintiff: which indorsement is not now disputed. The ground upon which this action proceeds was no defence against that sentence. It is enough for us, that the commissioners adjudged they had no cognisance of such collateral mat- ter. We cannot correct an error in their proceedings ; and ought to suppose what is done by a final jurisdiction to be right. *But we think the commission- ers did right in refusing to go into such collatteral matter. Otherwise, by way of defence against a promissory note for 30.?., they might go into agreements and transactions of a great value : and if they decreed payment of the note, their judgment might indirectly conclude the balance of a large account. The ground of this action is not, that the judgment is wrong ; but, that (for a rea- son which the now plaintiff could not avail himself of against that judgment,) the defendant ought not in justice to keep the money. And at Guildhall, I declared very particularly, that the merits of a question, determined by the com- missioners, where they had jurisdiction, never could be brought over again in any shape whatsoever. Money may be recovered by a right and legal judg- ment ; and yet the iniquity of keeping that money may be manifest, upon grounds which could not be used by way of defence against the judgment. (Suppose an indorsee of a promissory note, having received payment from the drawer (or maker) of it, sues and recovers the same money from the indorser, who knew nothing of such payment. Suppose a man recovers upon a policy for a ship presumed to be lost, which afterwards comes home : or upon the life of *341 344 On Promises To Pay Over Money [Part II. a man presumed to be dead, who afterwards appears ; or upon a represen- tation of a risk deemed to be fair, which comes out afterwards to be grossly fraudulent. But there is no occasion to go further : for the admission that, unquestionably, an action might be brought upon the agreement, is a deci- sive answer to any objection from the judgment. For it is the same thing, as to the force and validity of the judgment, and it is just equally affected by the action, whether the plaintiff brings it upon the equity of his case arising out of the agreement, that the defendant may refund the money he received ; or, upon the agreement itself, that besides refunding the money, he may pay the costs and expences the plaintiff was put to. The gist of this kind of ac- tion is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money. Therefore, we are all of us of opinion, that the plaintiff might elect to wave any demand upon the foot of the indemnity, for the costs he had been put to ; and bring this ac- tion to recover the 61, which the defendant got and kept from him iniquitously." So, where an action is brought, and the money is paid under a compromise, and not in consequence of a judgment of the court ; and it is afterwards disco- vered that the money was paid by mistake or deceit, it may be recovered back by action of indebitatus assumpsit for money had and received. Thus, in the case of Cobden v. Kendrick,(f) where the following facts appeared : an ac- tion had been brought some time before by the present defendant, as indor- see of a promissory note for *150L against the present plaintiff as the maker; in which cause interlocutory judgment had been signed, and a writ of inquiry executed ; after which the cause was compromised by Cobden's paying part, and giving a warrant of attorney to confess judgment for the residue of the 150/. And in the interval, between the time when the warrant of attorney was given, and the time when the money became due, according to the defea- zance thereof, Kendrick told Allen, who was his attorney in that suit, that he was glad it Mas settled, for that he had only given 10/. in cash, and his pro- missory note for it ; and that he knew it was a lottery transaction. This ac- tion was now brought to recover back the money so paid, on the ground of want of consideration ; and in proof that that was known to Kendrick at the time he took the note, Allen was called as a witness to speak to the conversa- tion above mentioned, and he was admitted, after argument upon his incompe- tency ; and a verdict passed for the plaintiff. An objection was also taken at the trial, that this action was in effect to put the sum in litigation a second time, which had been recovered in the former action by Kendrick against Cob- den ; but Lord Kenyan Ch. J. over-ruled it, on the ground that the money had been paid under a compromise, and not under the judgment of a court. 4. Of Money Paid under a Threat of Distress for Rent, &c] — If a landlord threaten to distrain either for more rent than is due, or for a greater rent than that agreed upon ; and under such a threat, the tenant pays the rent (/) 4 Term Rep. 431. # 345 Chap. 4.] Had and Received to the Use of Another. 345 demanded, he cannot recover it back, for he should then have made his stand, and have resisted any distress which the landlord might have made. Thus, in the case of Knibbs v. Hall,(g) which was an action of assumpsit for use and occupation of chambers. The defendant pleaded non assumpsit, with a notice of set-off for money had and received. One article of the set-off, which the defendant proposed to give in evidence, arose in the following manner. The defendant being indebted to the plaintiff for the rent of other chambers be- longing to the plaintiff, which he then occupied, the plaintiff demanded payment at the rate of 25 guineas per annum. The defendant insisted that he had taken them at 20 guineas per annum only, and offered to pay at that rate. The plaintiff refused to take it, and threatened to distrain if not paid at the rate of 25 guineas ; the defendant, in order to avoid the distress, paid at that rate, and now brought a witness to prove that the chambers, for which he had paid at the rate of 25 guineas, were really let at 20 guineas, so that he had overpaid the plaintiff, and therefore proposed to set-off the surplus, as having been paid by compulsion, and in his own wrong ; but Lord Kenyon Ch. J. was of opinion, that this could not be deemed a payment by compulsion, as the defendant *might by a replevin, have defended himself against the distress : that, there- fore, after a voluntary payment so made, he should not be allowed to dispute its legality ; and therefore rejected the evidence. 5. Of a compulsory Payment under a Colour of Process, or by Excess of Authority.] — An action of indebitatus assumpsit for money had and received, will lie to recover back money which has been obtained through compulsion, under colour of process, by an excess of authority against the par- ty receiving it, although it has been paid over to the principal. Thus, in the case of Snowdcn v. Davis, (h) which was an action for money had and received. And the facts were, in substance, as follows, viz. that a writ of distringas had issued out of the exchequer directed to the sheriff of Berks, requiring him to distrain the inhabitants of the borough of New Windsor by their lands and chattels for the deficiency of George Dixon and John Snoiv, collectors, in the said borough, the several sums of 7/. 85. 2d., and 74/. 2s. Od. By virtue of this writ the sheriff issued a warrant to the defendant, commanding him to dis- train in the words of the writ. The defendant under colour of the warrant, demanded of the plaintiff, who was an inhabitant of the borough of New Wind- sor, the two several sums of 11. 8s. 2d., and 74/. 2s. ; the plaintiff at first refus- ed to pay the money, but upon a subsequent demand made, he paid it. On the 12th of February 1806, another writ of distringas issued to the sheriff of Berks, commanding him to distrain the said George Dixon and John Snow, collectors, the sum of 132/. 14s. Id. ; upon this writ the sheriff issued his war- rant to the defendant, to distrain upon Snow and Dixon, the collectors there, the sum of 132/. 14s. Id. upon which warrant the defendant demanded of the plaintiff that sum, and also 6/. 12s. 5d. for issues. The plaintiff at first refus- fe) 1 Esp. Rep. 84. (A) 1 Taunt. 359. ♦346 846 On Promises To Pay Over Money [Part II. ed to pay him, but the defendant took possession of his goods ; upon which the plaintiff paid him both sums. The defendant proved, that before the time of bringing this action the sums levied by colour of the first writ had been paid over by himself to the sheriff, and by the sheriff into the exchequer, and that the sheriff had received his quietus. He also proved, tbat the sums levied un- der colour of the last writ, had been paid over by himself to the under sheriff before the action brought. Chambre Just., before whom the cause was tried, directed the jury, that the plaintiff was entitled to recover the sums he had so paid, deducting the issues upon the sums mentioned in the first writ, which is- sues the defendant was, by the practice of the Court of Exchequer, authorized to levy. The jury found a verdict for the plaintiff for 216/. 13s. 10d., being the amount of the several sums of money so paid by the plaintiff, deducting thereout 4/. 1*. 6d. for the issues of Is. in the pound, on the amount received under the first writ. A rule nisi was afterwards obtained for setting *aside the verdict, and entering a nonsuit, upon the ground, that as the money had been paid over by the bailiff to his principal, the action for money had and received could not be supported against the bailiff: the Court, however, determined, that the action for money had and received was properly brought under the circum- stances of this case ; and the rule was therefore discharged. (127) 14. OF MONEY RECEIVED UNDER A VOID AUTHORITY ; WHETHER JU- DICIAL OR OTHERWISE. Money paid under a void authority may be recovered back in an action of indebitatus assumpsit, for so much money had and received to the use of the party paying it against the receiver. Thus, in the case of Sir Richard Newdi- gate v. Davy(i) the following facts were proved: Sir Richard Newdigate, the plaintiff, had a donative which he gave to the defendant, Davy ; and after- wards he removed Davy, and put in J. S. Davy cited Sir Richard Neicdigate in the time of James II. before the high commissioners, and there Sir Richard Newdigate had sentence against him to restore Davy, and to pay him all the arrears that he had received : Sir Richard Newdigate paid it accordingly. And after the revolution Sir Richard Newdigate brought indebitatus assumpsit against Davy for this money, as received to his use. Treby Ch. J., before whom the the cause was tried, held that the action well lay ; for when money is paid in pursuance of a void authority, &c. indebitatus assumpsit lies for it. So, in the case of Fellhamv. Terry, (k) where an action for money had and received was brought against an overseer of the poor, to recover money in his hands which had been levied on a conviction, but that conviction was after- (t) 1 Ld. Raym. 742. Bui. N. P. 133. Term Rep. 387. Vide 2 Ld. Raym. 1216. B.C. S.P. Sed vide 1 Ld. Raym. 742. contra, (fc) Loft. 207. and cited in Cowp. 419. 1. (127) See Levy v. Roberts, 1 M>Cord, 395. ►347 Chap. 4.] Had a id Received to the Use of Another. 347 wards quashed : and the court held that the action was maintainable for the clear money in the defendant's hands, because the plaintiff might wave the tort, and sue for the clear money really due. So where A. took out administration to a person supposed to have died intes- tate, and appointed J. S. his attorney, who received money, &c. and paid it to the administrator; afterwards a will appearing, the letters of administration were called in, and the executor brought an indebitatus assumpsit against the attorney who objected, 1st. That he acting only as an attorney for A., who in fact was administrator ; the receipt of the money was not his, but the administrator's ; and 2-dly, That the action ought to have been a special assumpsit ; the money being received by special authority, and that expressly to the use of another/ But Trevor Ch, J. held,(/) that the authority being void, it was a receipt *of so much money for the use of the plaintiff on an implied contract, for which an indebitatus assumpsit well lies. But in the case of Allen v. Dundas,(?n) it was determined, that an authority given by a court, having competent jurisdiction, is not a void authority, though it may be afterwards vacated: therefore where A. stood indebted to B. for money had and received, and B. dies, after whose death C. obtains probate of a forged will, and A. not knowing of this circumstance pays the money over to him as executor, no action will lie to recover back the money so paid, notwithstanding the probate be afterwards declared null, and administration be granted to the intestate's next of kin : but if the supposed testator be living at the time of granting the probate, such action will lie ; for in that case the authority is void, the ecclesiastical court having no jurisdiction. And in all cases where the authority is absolutely void, a payment made under it is no discharge. As where the defendant, who had a house both in America and London, drew bills in America of the same tenor and date on their house, in favour of the plaintiffs ; one of them being lost, it came into the hands of a third person, who forged an indorsement in the name of the payee, and received the amount of it from the defendants : afterwards the real payees sued them on the other bill and recovered. (?i) So where A. pays a debt which he owes to B., to the attorney of a person suing A. in B.'s name, but without any authority from B., A. is still liable to B., and the attorney is answerable to A. in an action for money had and received, though he has actually paid over the money to his employer ; and though he conceived that he was acting under the real authority of B. : but in point of fact the person who had employed him had forged a power of attorney in B 's name, (o) But in the case of Lindon v. Hooper, (p) it was determined, that an action for money had and received does not lie to recover back money paid for the re- lease of cattle distrained damage feasant, though the distress were wrongful ; (1) 1 Salk. 27. pi. 14. But see Ld. Raym. («) Ibid. 127. See also 8 East Rep. 187. 1210. and 4 Bur. 1986. contra. (o) Robson v. Eaton, 1 Term Rep. 62. (m) 3 Term Rep. 125. ( ? ) Cowp. 414. 43 *348 548 On Promises To Pay Over Money [Part II. the proper remedy being either by a replevin, or by action of trespass vi et armis. 15. OF MONEY RECEIVED MALA FIDE, OR OBTAINED BY DECEIT, MIS- REPRESENTATION, OR OTHER FRAUDULENT MEANS. If money is received mala fide, or obtained by deceit or misrepresentation, it may be recovered back in an action of indebitatus assumpsit. Thus, in the case of Madden v. Kempster,(q) which was an action for money had and received. The plaintiff was a marine agent at Portsmouth, *and the defen- dant carried on the same business in London. Captain Hart, an officer in the marines, had employed the defendant as his agent, but in February 1807 he dismissed him, and put his concerns into the hands of the plaintiff. The defendant, in the preceding December, had, for the accommodation of Captain Hart, accepted a bill for 60/. at four months. On ceasing to be employed by him, he went to Messrs. Abraha7ns and Rice, attornies in town, and agents of the plaintiff, and represented to them that there was a balance of 60 /. due to him from Captain Hart. Upon this they gave him a cheque for the money on the plaintiff's banker, which was regularly paid. It appeared that the payee of the bill accepted by the defendant, had delivered it back to Hart, on receiv- ing another in its stead ; and the witnesses swore they believed it was at that time cancelled or destroyed. Abrahams and Rice repeatedly stated these facts to the defendant, and pressed him to return the 60/., but he refused to part with it, unless he had a bond of indemnity from the plaintiff. They offered him a verbal undertaking, that he should never be sued upon the bill ; but he insisted upon a security under seal. Lord Ellcnborough Ch. J. said, " The plaintiff is entitled to recover this sum of money, the defendant having obtained it by misrepresentation. He mentioned nothing of the acceptance ; he obtain- ed it as a balance, when no such balance was due to him. He cannot therefore set up the lien, to which he might otherwise be entitled." So, in the case of Hogan v. Shee,(r) which was also an action for money had and received. It was brought to recover a sum of 100/., which had been given to the defendant by the plaintiff as a consideration for the defendant's procuring for his brother a place of a cadet in the service of the East India Company, which he had undertaken to do. The defendant had given a note, by which he promised to repay that sum within three months in case he did not procure the place within the time limited. The plaintiff proved this note, and also stated that the interest by which the defendant had represented he could procure the appointment was that of Sir Stephen Lushingfon or Mr. Bo- sanquft ; the latter of whom was called to prove, that the defendant had no manner of interest with him, nor were such appointments to be procured for money. The plaintiff having discovered the deception, brought this action im- (<}) 1 Campb. 15. (r) 2 Esp. Rep. 522. *349 Chap. 4.] Had and Received to the Use of Another- 849 mediately without waiting the expiration of the three months. It was objected for the defendant, that the action could not be maintained till the expiration of that period. But in answer to this objection, it was stated by the counsel for the plaintiff, and assented to by Lord Kenyon Ch. J. before whom the cause was tried, " That where a contract is to be performed in a given time, and it is bona fide, no action can be brought till that time is expired, but where it is not bona fide, as where *a party undertakes to do any thing, and on the faith of it another pays a sum of money, and it appears such person cannot perform what he has undertaken within the time specified, so that the taking of the money was fraudulent, the party may consider the agreement as a nullity, and proceed immediately to recover back the money." The plaintiff accordingly obtained a verdict for the amount received by the defendant. So, in the case of Hasser v. Wallis, (s) the plaintiff being a feme sole mar- ried the defendant Wallis, who was in truth married to another woman : Walks made a lease of the wife's land, reserving rent, and received the rents from the tenants. The plaintiff afterwards discovering the former marriage, brought this action of indebitatus assumpsit against Wallis for so much money had and received to her use. And after verdict, on non assumpsit, it was objected, that Wallis having no right to receive, the tenant was not discharged, and therefore an action lay against the tenant, who had his remedy over against Wallis. But the court decided, that Wallis was visibly a husband, and the tenant dis- charged ; at least, that the recovery against Wallis in this action would dis- charge the tenant, for this would be a satisfaction to the lessor. So, in the case of Thomas v. Whip,(t) where a woman was nurse to the plaintiff's intestate, and when he died went off with the money he had about him. Parker Ch. J. held, that an action will well lie for money had and re- ceived 10 the plaintiff's use ; for (he said) he would presume a subsequent agreement to make a contract of it ; and the bringing the action is an admis- sion of such consent. And he said, he knew but of two cases where the plain- tiff had not such election, the one was in case of money won at play, and the other in case of money paid by a bankrupt (though on valuable consideration) after the act of bankruptcy committed ; in either of which cases the action must be trover, for you cannot confirm the act in part, and impeach it for the rest. And Lord Hardwicke (mentioning this case) said, he always so held it, and had nonsuited many plaintiffs in actions of assumpsit under such circum- stances. So, if a son having a general authority to receive and pay money for his fa- ther, receive money due on a bill to his father, and give a receipt for it, as money had to his father's use, and after give it away, the father may bring tro- ver against the donee ; for his son's receipt is a good discharge of the debt, and therefore his possession is the possession of the father ; the son being, as to this purpose, his servant ; and the son may, in this case, be a witness (to («) 1 Salk. 28. 11 Mod. 146. Holt. S6.S. C. (f) Trin. 1 Geo. I. Bui. N. P. 130. •350 350 On Promises To Pay Over Money [Part II. prove the delivery to the defendant,) his evidence being corroborated by other circumstances. (*) *16. IN WHAT CASES MONEY RECEIVED BY" OR FROM SHERIFFS, BAI- LIFFS, GAOLERS, OR THEIR DEPUTIES, &c. MAY BE RECOVERED BACK. 1. Of Money Received by or from Sheriffs or their Officers.] If a sheriff levies money upon a fieri facias, the plaintiff may have an indebitatus assumpsit against him for so much money received to his use ;(«) it also lies against his executors, if he die ; for this is not like an escape, which is a wrong done by the sheriff himself, but it is founded on a duty due by the sheriff, which shall survive and charge his executors. (v) In the case of an ex- tent it has been determined, that goods seized under an execution on a judgment at the suit of a subject, are, before sale, liable to be taken by virtue of an ex- tent tested after the delivery of the fieri facias to the sheriff; (w) and there- fore it has been held that the judgment creditor cannot maintain an action for money had and received to his use against the sheriff, who sells under the extent, and pays the proceeds to the crown. But where the sheriff sold part of the goods seized under a fieri facias on a Saturday, and part on the fol- lowing Monday, and received the money from the purchasers before the deliv- ery to him of an extent tested on the Monday, the Court of Common Pleas de- termined, that an action for money had and received would lie against him at the suit of the plaintiff in the fieri facias for the amount so received, (x) (128) So, in the case of M l Neil v. Pcrchard,(y) which was an action of indebita- tus assumpsit for money had and received, brought to recover the sum of 1061. under the following circumstances : the plaintiff being indebted to one Parks, a writ issued, directed to the defendants, sheriffs of London, to hold him to bail for that sum at the suit of Parks. The sheriffs directed their warrant to one of their officers of the name of Kellett, who arrested the plaintiff; and upon the arrest being made, the plaintiff paid into Kcllett's hands the above mention- ed sum of 106/., which Kellett undertook to return on the plaintiff's putting in and justifying bail to the action. The plaintiff did put in and justify bail ; and the present action was brought to recover the money so paid into Kellett' 's hands, which he had not returned to the plaintiff pursuant to his undertaking. And upon the trial, before Lord Kent/on Ch. J., the plaintiff obtained a verdict. (*) 1 Salk. 239. Bu!. N. P. 35. Mills, 16 East Rep. 254. (i<) Comb. 430. 2 Show. 79. and Dale v. (a) Swain v. Morland, 1 Brod. & Bing. Birch, 3 Campb. 347. 370. 3 Mo. 740. S. C. (v) 3 Salk. 323. Cro. Car. 539. (y) 1 Esp. Rep. 263. (wj) 2 Saund. 70. c. n. h. Thurston v. (128) Money levied by the sheriff, upon a judgment which is afterwards reversed, cannot be recovered back by general indebitatus assumpsit for money had and received, unless the money be actually received by the officer, or applied to his use. Isom v. Johns, 2 Munf. 272. See Overton v. Hudson, 2 Wash. 172. *351 Chap. 4. J Had and Received io the Use of Another. 351 So, where a sheriff's officer, being in possession of the tenant's effects under an outlawry, made a distress for the rent, sold the goods so distrained, and af- terwards the outlawry was reversed : it was ruled, that *the officer was liable to pay the produce of the goods to the landlord, in an action for money had and received. Thus, in the case of The President and Scholars of St. John's College, Oxford, v. Murcott,(z) which was also an action of indebitatus as- sumpsit for money had and received. On the trial, a verdict was taken for the plaintiff, with damages 166/. subject to the opinion of the Court of King's Bench on the following case : On the 21st November, 1791, William Grant, the ten- ant of a farm at Wasperton in the county of Warwick, under the plaintiffs, at the yearly rent of 166/. was outlawed in an action of trespass on the case up- on promises, at the suit of W. Priddle. On the 25th of April, 1792, a writ of capias ullagatum, directed to the sheriff of the county of Warwick , was issued against Grant ; on which the sheriff, on the 7th of May 1792, issued his war- rant, directed to the defendant and other persons, commanding them to seize the goods and chattels, lands and tenements of Grant; so that the sheriff might cause the same to be appraised and seised into his Majesty's hands. Under that warrant the defendant entered upon the farm in the occupation of Grant, and took possession of all the goods and chattels that Grant then had upon the pre- mises. The sheriff then summoned a jury to take an inquisition by virtue of the writ on the 11th of May ; but the inquisition was then adjourned to the next day, when it was taken. On the 11th of May, (the defendant being then in possession of the farm, and of the goods and chattels of Grant, under the said writ) the Reverend T. Welsh., on behalf of th,e plaintiffs, applied to the de- fendant, and informed him that a year's rent of the farm was due to the plain- tiffs from Grant, and that he intended to distrain for it. The defendant then of- fered to make the distress for the plaintiffs, and said he could do it as well as another. Mr. Welsh then gave the defendant directions to make the distress, and accordingly, on the 12th of May, he distrained part of the effects already in his possession under the writ, but not any of the crops then growing on the premises. Being himself an auctioneer, he, on the 18th of May, sold by auc- tion sufficient to produce the 166/. due for rent, and the expences of making the distress ; and about a week after the sale the defendant told Mr. Welsh, that the business was all finished ; that he had lodged the money in the hands of his bankers, and it was ready whenever the College chose to demand it. About a fortnight afterwards, Mr. Welsh applied to the defendant for the mo- ney, but the defendant then told him that he had had advice upon the business ; that he apprehended the distress was not legal, and he would not pay the mo- ney. The defendant continued in the occupation of the farm under the writ ; and when the crops growing on the farm became ripe, reaped them, and got in the harvest. On the 4th October, 1792, the outlawry against Grant was re- versed. *On the 24th October, a writ of amovcas manus, on the reversal of the outlawry, was issued ; and upon which the sheriff, on the 7th of November, (z) 7. Term Rep. 259. *352 *353 353 On Promises To Pay Over Money [Part 11. issued his warrant and caused the same to be delivered to the defendant ; and the defendant on the same day quitted the possession of the said farm, and the tenant re-entered. In July, 1793, after the defendant had quitted the possession of the farm, Mr. Welsh again applied to him for the 166/. but the defendant refused to pay it, saying, that he had expended money in getting in the crops upon the farm, and if Grant would pay him for that expence, he would pay the 166/. to the plaintiffs. The Court were of opinion that the plaintiffs were entitled to recover the 166/. as so much money received by the defendant for their use. And Ashhurst J. said, ' " The instant this outlawry was revers- ed, the judgment of outlawry became mere waste paper and the rights of all the parties were restored to the same situation as if no outlawry had taken place. In this case the defendant made this distress for the plaintiffs at his own request ; and having received the money, he objects to pay over to his employers on another account, with which they have no concern : but having taken upon himself to act as their bailiff, and the bar, which before existed, being now removed by the reversal of the outlawry, it appears that he has re- ceived money for the use of the plaintiffs, which in conscience he is not entitled to retain merely on account of his having some demand on the tenant." But in the case of Green v. Austin, (a) it was held, that an action for mon- ey had and received cannot be maintained by a landlord to recover the amount of a year's rent against the sheriff who has sold his tenant's goods under an execution. The action in this case was brought against the sheriff of Surrey to recover one year's rent due to the bankrupt fiom a tenant, whose goods, to a greater value, the defendant had sold under a writ of fieri facias : and it was contended, that as the sheriff, under the 8 Ann. c. 14., ought to have paid the landlord a year's rent before satisfying the execution, the price of the goods in his hands became money had and received to the landlord's use ; Lord Ellenbo- rough, however held, after reference to the statute, " that money had and re- ceived would not lie, and that the proper remedy was a special action on the case against the sheriff for removing the goods from the premises under the execution before the year's rent was paid to the landlord :" the plaintiff was therefore nonsuited. An action for money had and received at the suit of a plaintiff who has sued out a fieri facias lies against the sheriff who executed it, if he retain more mon- ey in his hands than he is entitled to do ; the party injured not being bound to proceed by a summary application to the Court, {b) So, where a sheriff claim- ed as of right, upon a warrant issued *by him in the execution of his office, a larger fee than he was entitled to by law, and the attorney paid it in ignorance of the law, it was determined that the latter might maintain money had and re- ceived for the excess paid above the legal fee, or might set off the same in an action by the sheriff against him : and that the sheriff was not entitled to more than a fee of four-pence upon every warrant issued by him.(c) (a) 3 Campb. 260. (c) Dew v. Parsons, 2 Barn. & Aid. 562. (ft) Longdill v. Jones, 1 Stark. 345. *354 Chap. 4.] Had and Received to the Use of Another. 354 So, where a sheriff issued a warrant on mesne process to distrain the woods of A. ; but the bailiff levied the debt upon the goods of B., and paid it over : it was holden that money had and received will lie against the bailiff. Ul) Where a levy was made on the goods of a trader after he had committed an act of bankruptcy, and the money levied was paid over to the execution cred- itor : but afterwards an action of trover was brought by the assignees against the sheriff and his bailiff, in which damages were recovered ; and these to- gether with the costs, were paid by the bailiff: it was determined, that there was no implied promise on the part of the plaintiff in the original suit to indem- nify the bailiff, or to contribute to the damages and costs in the action of tro- ver ; but that the bailiff might maintain money had and received to recover back the levy money paid over.(e) 2. Of Money Received by Gaolers.] — If by the regulations of a prison made by the magistrates, certain rates are settled for lodging, &c. within the prison, the gaoler cannot take more than that sum ; and if he does, he shall be liable to refund it, though he has paid it over to the magistrates, to whom he accounts. This was settled in the case of Miller v. Aris,( f) which was an action of indebitatus assumpsit for money had and received ; and brought against the defendant, who was governor of the prison in Cold-Bath Fields to recover a sum of money paid by the plaintiff, for lodging and victuals while he was confined as a prisoner in that place of confinement. This prison is under the regulation of the magistrates of the county of Middlesex, by whom a particular code of printed regulations is framed for its government. And by the 25th rule of those printed regulations, " The governor is allowed to demand of every person committed for safe custody only, and not in execution and requiring to be lodged in a better manner than the rest of the prisoners, and able to pay for a bed, the sum of 1*. for a night ; and to keep one or more beds always fit for use, in case such beds should be wanting." It was proved that the plaintiff, having had one of those beds while he was in custody had been charged and paid for it one guinea per week : to recover the overplus of which sum, above that settled by the rule, was one of the articles of the plain- tiff's demand. By another of those printed regulations, the governor is prohibited *from fur- nishing the prisoners with victuals, or contracting for the same. The plaintiff during the period of his confinement, had been charged and paid for victuals : to recover the money so paid, constituted the second article of his demand. In answer to the demand for lodging, the defendant relied that he accounted at the sessions to the county for the sums received on account of the gaol ; that the charge of one guinea per week was sanctioned by usage, and authorized by the justices, who passed the accounts, and he gave in evidence the book kept for that purpose, containing the account of the lodging of the several prisoners • and which book was furnished to the magistrates, and contained the charge (d) Hnmcdon v. Davis, 1 Taunt. 359. If) 3 Esn Ren 9 31 (0 Wilson v. Miller, 2 Canipb. 452. ' ' " '355 355 On Promises To Pay Over Money [Part II. in question. The second demand for victuals was completely disproved ; it ap- pearing that the cook of the prison was the person solely interested in provid- ing the victuals. Lord Kent/on Ch. J., before whom the cause was tried, said, " For the demand of victuals, the plaintiff cannot recover : but I am of opinion that the action is maintainable for the overplus money paid on account of the lodging. It is relied on for the defendant, that he is merely an agent, receiving the money from the prisoners, and paying the produce to the county. The case of Sadler v. Evans, 4 Burr. 1985, is relied on; it has been so laid down by very high authority in that case, that where money has been received by an agent, you cannot sue him, but must have recourse to the principal ; but that is where there is no corruption in the foundation of the contract, nor is bottomed in oppression or immorality. The rules for the regulations of this prison are properly made ; but prisons are not places where prisoners are to have all the conveniences and comforts of life. Gaolers are bound to treat their prisoners with humanity ; but the regulations framed for the prison ought to be conformed to. These regulations have pointed out what sums ought to be tak- en : it should not be in the power of the gaoler to dispense with those regula- tions, and to enter into contracts with those in their custody, and under their controul : to allow that, might be to sanction oppression. In cases of usury, the person whose necessities prompt him to borrow, will enter into any impro- vident contract whatever, and submit to any terms, however excessive, to procure money : but the law will protect him, and not suffer it. In this case I think the law will interpose in the same way, and not permit such an agree- ment to be entered into. I am therefore of opinion, that the plaintiff is entitled to recover the money paid for the lodging, above the sum allowed by the reg- ulations." + 17. OF MONEY RECEIVED BY THE RECEIVER GENERAL OF A COUNTY FOR A PARTICULAR PURPOSE ; OR BY REVENUE OR OTHER PUBLIC OFFICERS, EITHER BY MISTAKE OR OTHERWISE. 1. For Money Received by the Receiver General of a County.] An action of indebitatus assumpsit lies upon the stat. 43 Geo. 3. c. 55. by a lessee of certain land against the receiver general of the land-tax for a county, to recover a sum of money duly assessed by a jury as a compensation to the plaintiff for his damages by reason of giving the possession and use of that land " during the time for which the same should he required for the public ser- vice."{g) 2. Of Money Received by Revenue Officers.] — If duties be paid to a revenue officer by mistake, and he pays them over to his superior officer before he has notice of the mistake, an action of indebitatus assumpsit does not lie against him. Thus, in the case of Greenway v. Hurd,(h) which was an ac- tion of indebitatus assumpsit for money had and received. At the trial it ap- (?) Bingham v. Serle, 5 East Rep. 534. 530. S. P. (h) 4 Term Rep. 553. Cowp. 69. Loft. *356 Chap. 4.] Had and Received to the Use of Another. S56 peared, that the action was brought to recover back 529/., which the plaintiff had paid in July 1785 to the defendant, who was a collector of excise, for cer- tain duties on the cotton manufacture imposed by the 24 Geo. 3. c. 40. ; which act, it was admitted, had been repealed, as far as related to these duties by the 25 Geo. 3. c. 24. before the duties were incurred ; the latter statute re- pealing the duties " from and after the passing of that act," and, consequently, relating to the first day of the sessions, the 25th of January 1785. In June, 1785, the plaintiff positively refused to pay these duties, which, however, he afterwards paid on the 22d of July following. It was objected by the defen- dant's counsel, that as the defendant had paid the money over to his superior officer before the action was brought, the plaintiff could not recover back the money from the defendant who was a public officer, and who had been oblig- ed, under the terrors of a penalty, to pay over this money ; and that if he could, the defendant was entitled to a month's notice before the action was brought, un- der the 23 Geo. 3. c. 70. s. 30. which had not been given ; and the judge be- ing of this opinion, nonsuited the plaintiff. Amotion, however, was afterwards made to set aside that nonsuit: but the Court were of opinion, that the action would not lie, because the money had been paid over before the action was brought, and a month's notice had not been given to the defendant. But this form of action lies to recover back money paid to a custom-house •officer, which has not been paid over by him, where the duty, in respect of which he received the money, was not imposed by lawful or sufficient authority to warrant it.(i) So, indebitatus assumpsit for money had and received, will lie to recover back exorbitant fees taken by a custom-house officer : thus, in the case of Stevenson and others v. Mortimer, (k) which was an action for money had and received, brought by the plaintiffs, as owners of a boat employed in carrying chalk and lime from one part of the coast of Sussex to another, viz. from East Bourne to Hastings : and the action was brought to recover the whole or part of certain sums of money paid by the master of the boat, who was the plaintiff's servant, to the defendant, a custom-house officer, as his fees due upon the master's taking out a coquet and bond under an idea that this boat came within the stat. 13 and 14 Car. 2. c. 11. s. 7., by which it is enacted, •• That no goods shall be shipped, or put on board, to be carried forth to the open sea from any port or place, &c, to any other port or place of the realm, without a sufferance or warrant first had and obtained ; and that the master of every ship and vessel, who shall lade or take in any goods, &c. in any port, member, or creek, within the kingdom, to be landed or discharged in some other port, member, or creek, shall, before the ship or vessel be removed or carried out of the port, where he shall take in such lading, take out a co- quet, and become bound, in a certificate with good security, in the value of the goods, for delivery thereof, in the port or place for which the same shall be entered ; and to return a certificate of their being so landed, upon pain of for- CO Campbell v. Hall, Cowp. 204. (jfc) Con-p. 805. 44 # 357 357 Ofi Promises To Pay Over Money [Part II. feiting the penalty of the bond." The question intended to have been tried was, whether a coquet was necessary to be taken out under the stat. 13 and 14 Car. 2. for goods carried coastwise. But before the trial the plaintiffs gave notice, that they also meant to go upon the ground of the defendant having taken ex- orbitant fees : he had demanded and received 14s. 6d. Mr. Serjeant Sayer f before whom the cause was tried, was of opinion, that this duty being imposed by the statute upon the master, the action was wrong brought in the name of the owners, and accordingly nonsuited the plaintiff. But upon a motion beino- made for a rule to set aside the nonsuit, and for a new trial, the Court of King's Bench determined that the action was properly brought against the defendant, and therefore made the rule absolute. And Lord Mansfield, Ch. J., said : " The ground of the nonsuit at the trial was, that this action could not be well maintained by the plaintiffs, who are the owners of the vessel in question; but it ought to have been brought by the master who actually paid the money. That ground, therefore, makes now the only question before us ; as to which there is not a particle of doubt. Qui facit per alium, facit per se. Where a man pays money by *his agent, which ought not to have been paid, either the agent or principal may bring an action to recover it back. The agent may, from the authority of the principal, and the principal may, as proving it to have been paid by his agent. If money is paid to a known agent, and an action brought against him for it, it is an answer to such action, that he has paid it over to his principal, Sadler v. Evans, 4 Burr. 1984- Here the statute lays the burthen on the master from necessity ; and makes him personally liable to penalties if he neglects to perform the requisitions of it. But still he is entitled to charge the necessary fees, &c, upon his doing so, to the account of his owners. And in this case, there can be no doubt of the relation iir which the master stood to the plaintiffs ; for he is the witness, and he swear that the money was paid by the order of the plaintiffs. Therefore they are very well warranted to maintain the action. If the parties had gone to trial upon an apprehension that the only question to be tried was, whether this was a case within the act of parliament, consequently, whether any fee was due, the plaintiff could not have been permitted to surprise the defendant at the trial, by starting another ground upon which to recover a Norfolk groat. An action for money had and received is governed by the most liberal equity. Neither party is allowed to entrap the other in form. But here the plaintiff gave notice, that he meant to insist that too much was taken ; and therefore both came to the trial with equal knowledge of the matter in dispute." So, if a revenue officer seize goods as forfeited, which are not liable to seizure, and take money of the owner to release them, the latter may recover back the money in an action for money had and received ; and in such an ac- tion a month's notice need not be given under the 23 Ceo. III. c. 70. s. 30. Thus in the case of Irving v. Wilson and another, (I) which was an action of (0 4 Term Rep. 4S5. r 358 Chap. 4.] Had and Received to the Use of Another- 358 indebitatus assumpsit for money had and received, to recover the sum of 21. lis. under the following circumstances : The defendants, who were custom-house officers, had seized some hams near Carlisle, which the plaintiff was sending in three several carts from Scolla?id to Carlisle. The plaintiff obtained one permit for the whole ; but owing to some accident two of the carts were at the distance of two miles behind the other : when the defendants met the first cart and demanded the permit, the driver informed them that the permit was with the other carts which came up in an hour and a half afterwards, before the first reached Carlisle, but not till the officer, after waiting some time with- out seeing the other carts, had made the seizure. They were all three driven to the custom-house at Carlisle, the defendants saying they could not release them unless the collector were applied to. When the whole was explained to the col- lector, he said he *would have no concern in the taking. And the defendants then refused to give up the carts with the cargoes, unless the plaintiff would give them 21. lis. ; which he accordingly did. At the trial, it was objected on the part of the defendants, that the plaintiff, by this transaction with the revenue officers, had incurred a penalty of 50/., and that he could not recover back, the money which he had paid to have the goods, which had been siezed, returned to him ; and the plaintiff was nonsuited, with leave to move to set that non- suit aside, and to enter up a verdict for him, if the court of King's Bench should be of opinion that the plaintiff could maintain this action. It was also contended, that the defendants were entitled to a month's notice under the 23 Geo. III. c. 70. s. 30. and 24 Geo. III. c. 46. s. 39. But the court determined, that the plaintiff was entitled to recover the money in question in this form of action, and without any previous notice. And Lord Kenyan Ch. J. said : " The revenue laws ought not to be made the means of oppressing the subject. Here, a permit having been granted for the whole quantity of goods, and which was with the other carts behind at the time of the seizure, the seizure was clearly illegal. The permit for the entire quantity could not be separated and distributed to each of the carts. And therefore whatever ground of probability there was for stopping the first cart, yet after the matter was cleared up, there was no pretence for making a seizure ; and it was highly improper in the officers to take the money. If goods liable to a for- feiture be forfeited, the officer is to seize them for the king ; but he is not to be permitted to abuse the duties of his station, and to make it a mode of extortion. Here the defendants took the money under circumstances which could by no possibility justify them, and therefore this could not be called a voluntary pay- ment; but it was extorted from the plaintiff, and in that case no notice to the defendants was necessary." 13. OF EXCESS OF TOLL RECEIVED BY TOLL-GATE KEEPERS. If a toll-gate keeper either levies or receives toll when none is due, or if he demands and takes an excess of toll, the party paying may afterwards recover it back by action of indebitatus assumpsit. Thus, in the case of Parsons v. *359 359 On Promises To Pay Over Mo?iey [Part If. Blandi/)(m) where the defendant having levied a double toll upon a waggon be- longing to the plaintiffs, they made application to two justices of the peace, in pursuance of the directions of the Bath act; who, upon hearing the complaint, adjudged ihe single duty only to be due. And the defendant refusing to pay the overtoil, the plaintiffs sought to recover it by an action of assumpsit. Two ob- jections were taken ; first, because the proper remedy in this case under *the Bath act, was by an appeal to the Quarter Sessions ; and secondly, if the action of assumpsit would he, still notice ought to have been given pursuant to the directions of that act. The court, however, determined against both these ob- jections, and Wood Baron said, " There are two questions to be considered : 1st. As to appeal, it is quite clear that, where a power is given to justices of the peace to determine, it is final, unless an appeal is particularly given ; but looking at the appeal clause, this case is I think expressly excepted ; there being a particular mode of relief appointed in this case, and as no method of recover- ing the money adjudged to be wrongfully taken by the collector, is given by the act, therefore the party must apply to his common law remedy. 2dly. As to notice, this is neither within the letter or spirit of the clause ; the given notice generally contemplates tort or trespass ; it can never apply where a sum of money had been adjudged ; the defendant requires no notice ; there can be no defence, and therefore he does not want time. As to the form of the action, you shall not try title, or any thing of that nature, by an action for money had and received ; but here there is nothing collateral to be tried ; even if the act had said, that the justices should decree restitution, I should be in- clined to think that the action for money had and received would lie." 19. OF MONEY RECEIVED BY PARISH OFFICERS FOR THE MAINTE- NANCE, &c. OF BASTARD CHILDREN. An action will lie to recover back money paid to parish officers by a person taken up under a warrant as the putative father of a bastard child, by way of bargain with the parish to be released from all liability respecting the child, against those who received the money ; although before the commencement of the action, they may have gone out of office, and accounted with their succes- sors for so much of the money as was not expended on the child and its mother during her lying-in. However, in such action the plaintiff is only entitled to recover the surplus, after these charges have been deducted. This was settled in the case of Townson v. Wilson,(n) in which Lord Ellcnborough Ch. J. said, u If any person gets money into his hands illegally, he cannot discharge him- self by paying it over to another, and the contract under which this money was paid, was certainly illegal, as it gave the parish an interest in abridging the life of the child. When this question first came before me, on account of its novel- ty, I consulted the other judges upon it ; and I found that they (including a no- s m) Wightman's Rep. in the Exch. 22. Hewlett, 3 Mo. 211. and Hodgson v. WU~ ) 1 Campb. 396 See also Walkins v. limns, 6 Eep. Rep. 29. •360 Chap. 4.] Had and Received to the Use of Another. 360 ble friend of mine now no more) were of the same opinion. The chief objec- tion to the action *appears to be, that the parties may be represented as in pa- ri delicto ; but that cannot be said in this instance, as the plaintiff had been ar- rested, and was under duress when he deposited the money with the defendants. I am of opinion, however, that there should be a deduction, by way of set off from the 40/. for so much as the defendants expended about the lying-in of the mother, and the maintenance of the infant." So, if a promissory note is given to parish officers as an indemnity ao-ains t a bastard child, they can only recover upon it so much as the parish has ex- pended upon the child and its mother, (o) And no action at all can be main- tained upon the note, if the parish has not been damnified, (p) 20. OF MONEY RECEIVED UPON AN ILLEGAL CONTRACT OR TRANS- ACTION, WHICH IS EITHER MALUM LV SE, OR MALUM PROHIBITUM: AND IN WHAT CASES THE PARTIES ARE CONSIDERED NOT ONLY PARTICEPS CRIMIMS, BUT /JV' PARI DELICTO TO SUCH AN EXTENT AS TO DEPRIVE THE PARTY PAYING THE MONEY FROM RECOV- ERING IT BACK FROM THE RECEIVER. Where money has been paid upon an illegal contract, it is a general rule, that if the contract be executed, and both parties are in pari delicto, neither of them can recover from the other the money so paid ; but if the contract con- tinues executory, and the party paying the money be desirous of rescind- ing it, he may do so, and recover back his deposit by action of indebitatus as- sumpsit for money had and received, (q) And this distinction is taken in the books, namely, where the action is in affirmance of an illegal contract, the ob- ject of which is to enforce the performance of an engagement prohibited by law, clearly such an action can in no case be maintained : but where the ac- tion proceeds in disaffirmance of such a contract ; and, instead of endeavouring to enforce it, presumes it to be void, and seeks to prevent the defendant from retaining the benefit which he derived from an unlawful act, there it is conso- nant to the spirit and policy of the law that the plaintiff should recover, (r) There are, however, some cases, notwithstanding the contract is executed, in which the party who has paid money under it, has been allowed to recover it back again : for though in all illegal contracts there is a degree of delinquency in both the contracting parties, yet it is deemed expedient, upon principles of public policy, in order to prevent the repetition of crimes, or the evasion of a public act of parliament, to allow the party paying the money to recover it back by action *of indebitatus assumpsit for money had and received. We will now consider the cases upon this subject under the following subdivisions : (of Cole v. Gorcer,G East Rep. 110. (q) Doug. 470. Cowp. 199, 200. 792. (p) Wilder v. Griffin, 5 East Rep. 141. (r) Vide I H. Bl. 67. •361 •362 352 On Promises To Pay Over Money [Part II. 1. Of Money Received upon Illegal Contracts in general.] If a man gives his agent money to expend upon an illegal transaction, and it is ex- pended accordingly, no action lies to recover it back. Thus, where money was given by way of a bribe, Holt Ch. J. said : " That though he who receiv- ed it ought to he punished, yet he who gives the bribe ought not to be encour- aged by any way to recover it back again." (s) But in the case of Williams v. Hcdley,(t) which was an action for money had and received, brought to re- cover back money paid by the plaintiff to the defendant to compromise a qui lam action of usury, brought by the defendant against the plaintiff on the ground of an usurious transaction between the latter and one Eagleton, who had become bankrupt, it was held that such money might be recovered back by the plaintiff in this form of action. And such recovery might be had, al- though Eagleton's assignees had before recovered from the defendant the mo- ney so received by him, as money received to their use (the money paid by way of composition being at the time stated to be Eaglcton's money) ; there being no evidence, at the trial of this cause, to show that the present plaintiff was privy to that suit. And Lord Ellenborough Ch. J., in delivering the opinion of the Court, stated the case as follows : " This was an action for money had and received, brought to recover the sum of 965Z. Os. 8d. as having been unduly obtained by the defendant from the plaintiff under an agreement to compromise a qui tarn action for penalties of usury, brought by the defendant against the plain- tiff on the ground of certain usurious transactions which had taken place between the plaintiff Williams and Eagleton. This sum of 9651. Os. Sd. was the amount of the debt which had been owing from Eagleton to Hedley and his partner : and the jury to whom the question was left at the trial, found that the pay- ment of this debt of Eagleton by the plaintiff to the defendant was obtained from the plaintiff under the terror of the above-mentioned action of usury brought by the defendant, and then depending against him, and through the means of an agreement between the parties to compromise that action ; and the plaintiff thereupon recovered a verdict against the defendant for the amount of the mo- ney he had so obtained from him. Upon the motion for a new trial two ob- jections have been taken to the plaintiff's right to recover. The first was, that the plaintiff was in pari delicto with the defendant, as to the illegal compromise of the penal action ; and on that account not entitled to recover. The sec- ond objection was, that as Eagletori's assignees had, after his bankruptcy, re- covered *this money against the defendant and his partner, as money received by them for the use of the assignees, the plaintiff could not now recover the money against the defendant ; the plaintiff having, as was contended on behalf of the defendant, enabled Eagleton' s assignees to recover that money from him and his partner, and thereby estopped himself now to recover it from the de- fendant. But as there was no evidence given at the trial of any act done on the part of Williams, the plaintiff, in order to enable the assignees to recover, (*) Vide Skin. 412. 1 Salk. 22. Cowp.792. in notis. But see 1 Ld. Raym. 89. See also Doug. 697. (<) 8 East Rep. S78. •363 Chap. 4.] Had and Received to the Use of Another. S63 or which could be considered as rendering him in any degree privy to that suit, or liable for its consequences, that objection'fell to the ground for want of its necessary foundation in point of fact. The first of these two objections is therefore the only one which remains to be considered. The answers i) Vide Bui. N. P. 132. Cowp. 792. Vide ante, 272. as to money deposited with stake- holders on illegal wagers, &c. *371 *372 Chap. 4.] Had and Received to the Use of Another, 372 wishes, before the event happens which is to decide the wager, to put an end to the wager altogether, he may do so, and recover back the money so paid by action of indebitatus assumpsit. Thus, in the case of Tappenden and oth- ers, assignees of Bray v. Randall,{o) which was an action of indebitatus as- sumpsit for money had and received : at the trial a verdict was found for the plaintiffs, damages 216Z., subject to the opinion of the Court of Common Pleas, on the following case : " Bray duly became bankrupt, and a commission was issued against him, under which the plaintiffs were declared his assignees. On the 12th November, 1800, previous to any act of bankruptcy, in considera- tion of 210Z. then paid by Bray to the defendant, the defendant entered into a bond in the penal sum of 999/., conditioned that if the said William Randall shall and do, from the day of the date of the above bond, well and truly pay or cause to be paid unto the said John Bray, or his assignees, one annuity, or clear yearly sum of 105/. of lawful money of Great Britain, on the 1st day of May in each and every year, until the said William Randall shall prove, by evidence or otherwise, by the report of three eminent hop merchants, who shall make it appear to the satisfaction of the said John Bray or his assigns, that the revenues received by government by reason of the duties now assessed by parliament upon hops, shall, in the present or any one year hereafter, amount to a full and clear revenue or sum of 200,000/., then the above-writ- ten bond or obligation should be void, &c. Before the bringing of this action the plaintiffs applied to the defendant, stating that they considered the bond to be illegal, and demanding the return of the 210Z. and 6/. interest, which was refused. Lord Alvanlcy Ch. J. said, " It appears to me to be clear that the plaintiffs in this case are entitled to recover back the money which has been advanced by the bankrupt. In the present transaction there was no moral turpitude whatever : and though it has sometimes been held, that where there is moral turpitude in the contract, the court will not allow the party who has advanced money on such a contract to recover it back ; yet no argument of that sort can be urged in the present case. The simple statement of this case is, that after the money had been paid, but before the time had arrived at which the event in contemplation of the parties contracting was to take place, it was found out that the contract was illegal ; and therefore the money paid was de- manded back again. There is hardly any case of this sort in which the dis- tinction between immoral and illegal transactions has not been taken. I do think that there is a material distinction between wagers which are not recover- able on account of some inconvenience which the public may sustain by the open discussion of the questions to which they give rise, and *those which are in themselves immoral. In the present case one party has paid money with- out any consideration, and is therefore entitled to recover it back from the par- ty to whom he paid it." The other judges were of the same opinion ; but (o) 2 Bos. & Pul. 467. See also Busk v. Walsh, 4 Taunt. 290. S. P. *373 S73 On Promises To Pay Over Money [Part II. the Court observed, that in an action for money had and received, nothing but the net sum advanced, without interest, could be recovered ; and that the verdict must therefore be entered for the 210/. only. So, in Aubert v. Walsh,(p) the same point was determined: and Mansfield Ch. J. in delivering the opinion of the Court, said, " This is an action on a wa- ger brought to recover back the premiums paid ; and it is resisted on the ground that it is an illegal wager, and that before the period at which the wager was to be determined, the plaintiff claimed the money which he had advanced to be repaid. There have been many cases cited, to prove that, in the case of pay. ment of money on illegal transactions, potior est conditio possidentis; but the distinction is taken here, that the demand of the money back, before the day, was a rescinding of the illegal contract. There is, however, some doubt on the soundness of that distinction, unless accompanied with some qualification, for it does not clearly appear what is the period before which the contract may be re- scinded ; because a man may wait till the event of the wager may be very clearly known and foreseen ; and may he then rescind the contract and save his money ? However, in Lowry v. Bourdieu, Buller Just, took the distinction between a case where the event had happened, and where a man had taken his chance of winning, and the case where he had not ; and that distinction was expressly adopted by the judges of this Court in Tappenden v. Randall, (q) which was most clearly decided on that ground ; and subject to the observa- tion above made, I think there is good sense in that distinction : and why should not a man say, you and I have agreed so and so, but the agreement is good for nothing; I cannot bind you, and you cannot bind me, and therefore I desire, before the event happens, that you will pay me back my money : this is, in fact, a relieving against the effects which an illegal contract persevered in would produce. We, therefore, are of opinion that this distinction must be sup- ported." But where A. illegally betted 25 guineas with B. on a horse-race, of which C, at his own request, staked ten. A. won, and paid C. ten guineas, in the expectation of receiving the whole amount of the bet from B. B., however, died, and A. never received it. Held, that A. could not recover back the ten guineas which he had paid to C, because he could not establish his claim, with- out poing into proof of the illegal transaction, in which both were equally en- gaged, (s) So, where money deposited upon an illegal wager has been paid over *to the winner by the consent of the loser, the latter cannot afterwards maintain an ac- tion against the former, to recover back his deposit. Thus, in the case of How- son v. Hancock,(t) which was also an action of indebitatus assumpsit for mo- ney had and received. It appeared, that the plaintiff and the defendant had laid two wagers, the one of 10/. and the other of 3/. 16s. on the event of a (p) 3 Taunt. 277. (5) Simpson v. Bloss, 2 Mars. 542. (q) Ante, 372. (0 8 Term Rep. 575. Et ante, 272. ♦374 Chap. 4.] Had and Received to the Use of Another. 374 horse-race,*prohibited by the statute 10 Geo. 2. c. 19. s. 2., and deposited the money in the hands of certain stake-holders. The event having terminated in favour of the defendant, both sums were paid over to him, the first by the ex- press direction of the plaintiff, the latter (as the jury found) with his concur- rence ; and the present action was brought to recover back those sums from the defendant. But the Court determined, that the plaintiff was not entitled to recover, and Lord Ken yon Ch. J. said, " There is no case to be found where, when money has been actually paid by one of two parties to the other upon an illegal contract, both being particeps criminis, an action has been maintained to recover it back again. Here the money was not paid on an immoral, though on an illegal consideration; and though the law would not have enforc- ed the payment of it, yet, having been paid, it is not against conscience for the defendant to retain it." 5. Of Money paid upon Illegal Insurances, &c. in the Lottery.] Money paid as a premium for illegal insurances in the lottery is recoverable back by action of indebitatus assumpsit for money had and received. This was settled in the case of Jaques v. Golighlly,(u) which was an action of in- debitatus assumpsit for money had and received. At the trial it was proved, that, on the 1st of January, 1775, the plaintiff insured many lottery tickets, in various manners, at the defendant's office. The whole amount of the premiums by him paid was 64/. 17s. 6d. Upon some of the chances the plaintiff was a loser, in more a winner. The balance due to him was 90/. This the defen- dant refused to pay, alleging, that the insuring was illegal, but insisted, on retaining the premiums ; and upon this evidence a verdict was found for the plaintiff, damages 64/. 17 s. 6d. The counsel for the defendant moved for a new trial, upon the ground that the contract was void and illegal by the stat. 14 Geo. 3. c. 76. and the plaintiff entitled to no relief, because he was particeps criminis, and knowingly transgressing a public law. But the Court refused the rule, and determined that the plaintiff was entitled to recover; and Black- stone J. said, " These lottery acts differ fiom the stock-jobbing act of the 7 Geo. 2. c. 8. because there both parties are made criminal, and subject to penalties ; but the losing party is indemnified from those penalties, in case he sues and recovers back the money lost from the winner. It was therefore nec- essary, in the preceding clause, to give the loser a power to maintain such an action. But here, *(on the part of the insured,) the contract on which he has paid his money is not criminal, but merely void ; and therefore, having advanc- ed his premium without any consideration, he is entitled to recover it back." So, if a servant illegally insures in the lottery, and pays the premiums of in- surance with his master's money, the money so paid may be recovered back by the master in an action for money had and received against the lottery- office keeper. Thus, in the case of Clark v. Slice and Johnson,{x) which was also an action for money had and received. At the trial, a verdict was found (u) 2 Bl. Rep. 1073. See also Jacques v. (r) Cowp. 197. Loft., 756. S. C. Withy, 1 H. Bl. 65. S. P. 46 *375 375 On Promises To Pay Over Money [Part II. for the plaintiff, damages 459/. 4?. 4d. subject to the opinion of the Court, upon the following case : David Wood being a clerk to the plaintiff, a brewer, and receiving money from the plaintiff's customers, and also negotiable notes for the plaintiff's use, in the ordinary course of business, paid several sums with the said money and notes, at different times, to the amount of 459/. 4s. 4d. to the defendants, upon the chances of the coming up of tickets in the state-lot- tery of 1772, contrary to the lottery act of that year. The Court deter- mined that the plaintiff was entitled to recover in this action. But, in the case of King v. Scrape,(y) which was an action for money had and received brought to recover several sums of money, stated to have been paid by the plaintiff to the defendant, for illegal insurances in the lottery, in the years 1793 and 1794. A witness of the name of Felton, called by the plain- tiff, proved that he, in the beginning of the lottery, contracted with the defen- dant to insure for each day of the drawing at a settled price of insurance for each day ; that he made insurances with different persons on his account, which he re-assured with the defendant, reserving to himself a certain profit per cent. He then proved, that King, the plaintiff, as well as other persons, insur- ed the several numbers which he mentioned, with him (the witness), which he daily re-assured with Scrape, the defendant ; but added, that he never informed Scrape of the persons whose numbers he had insured. This tran saction was in 1794. Another witness was called, who proved that in 1793, King had in- sured in that year with Scrape, but that on the balance of the account the plain- tiff was in defendant's debt, the sums paid by the defendant having exceeded the money received as premiums. Eyre Ch. J. said, " The case of Clark v. Shce does not] come up to the present. There the plaintiff's money was paid over to the defendant by the plaintiff's servant; the property passed directly from the plaintiff to the defendant, and he could follow it into the defendant's possession. But in the present case, the property is changed by the interven- ing contract with Felton, and became vested in him : there is therefore no contract with the defendant in this action. Though there may be s ome doubt as to the situation of the witness, whether he was *not the agent of the defen- dant, and the money paid to him for the defendant's use, yet as there is no di- rect evidence offered to support it, it must be taken from the evidence of Felton, to be otherwise, and the transaction to have been on his own account. And as to the transaction in 1793, as it there appears, that after payments and allowan- ces on both sides, there was a balance in favour of the plaintiff, he therefore can have no right to maintain an action for money had and received, as he had in fact received more money than he paid." The plaintiff was therefore nonsuited. So, money paid by the insurer, or lottery-office keeper, to the insured cannot be recovered back. Thus, in the case of Browning v. Morris,(a) which was (y) 1 Esp. Rep. 432. Deey, 1 Esp. Rep. 152. S. C. (a) Cowp. 790. See also Drummond v. ♦376 Chap. 4.] Had and Received to the Use. of Another. 376 an action for money had and received. The facts were as follow : The plain- tiff and defendant were both lottery-office keepers ; and during the drawing of the lottery, entered into an agreement mutually to insure the number of a tick- et with each other, upon condition, that he whose number should be drawn on the day next following the agreement, should receive from the other an un- drawn ticket, or the value of it at the market price. The defendant's number being drawn, he chose the price of an undrawn ticket, which came to 14/. 3*., and received that sum from the plaintiff. The next day each insured another number, upon the same terms : and so the contract continued from day to day. It afterwards happened, that the plaintiff's number was drawn, when the de- fendant, instead of complying with the terms of the agreement, as the plaintiff had done, refused to give the plaintiff, either an undrawn ticket, or the value of one. Neither of them had any tickets in their possession, the consequence of which was, that the contract was illegal, and against the statute. But the ques - tion was whether the plaintiff was entitled, in disaffirmance of the contract, to recover back the sum which he had paid upon this ill egal transaction 1 The Court were of opinion that the plaintiff was not entitled to recover ; for it was observed, the plaintiff did not bring his action for money paid by him to the defendant for insuring ; but for money paid by him to the defendant in con- sequence of his having insured the defendant's tickets. So that the plaintiff was not only in pari delicto, but also stood in the light, and under the descrip- tion of that species of insurer, from whom the statute meant to protect the unwary. *21. IN WHAT CASES THIS FORM OF ACTION WILL LIE FOR FEES OR ACCUSTOMED DUES RECEIVED ; AND WHICH ARE EITHER CLAIMED BY ADVERSE PARTIES, OR WHERE THE RIGHT OF TAKING THEM IS DISPUTED: AND AGAINST WHOM THE ACTION LIES. Where a person has usurped an office belonging to another, and taken the known and accustomed fees of office ; or where two persons claim title to an office, and one receive the profits, either by himself or his collector, the other may bring indebitatus assumpsit for money had and received, whereon the title must be proved . (b) But such action must be brought against the principal, and not against the colleetor.(c) So, where a person is entitled to an office with fees annexed, and a stranger intrudes into the office, and receives the fees, this form of action lies to recover them ; but they must be certain, known, and accustom- ed fees annexed to the office, and such as the legal officer could himself recover in a court of law from the persons of whom they are claimed and received. Thus, in the case of Boyter v. Dodsworth,(d) which was an action for money had and received brought to recover back fees, received by the defendant to the use of the plaintiff, as belfry sexton, and church sexton of the cathedral of Salts- (6) 2 Mod. 260. 2S3. 3 Lev. 262. 2 T. (d) 6 Term Rep. 68 1. See also Green v. Jon. 127. 1 Danv. 27. HetoUt, Peake N. P. IS2. (c) 4 Bur. 1934. Bui. N. P. 133. •37? 377 On Promises To Pay Over Money [Part II. bury. The plaintiff claimed under two patents in 1777, from the treasurer of the church, confirmed by the dean and chapter, granting to him for a valuable consideration the above offices for life. The one granted to him the office of belfry sexton, " together with the right and full power of keeping keys to and for the doors of the said church, with free liberty of ingress, egress, and regress into and from the said church for cleansing, showing, or otherwise officiating in the same." The other granted to him the office of church sexton, " together with all fees, wages, and profits belonging, &c. in as large and ample a man- ner as S. C, (his predecessor,) &c. had, &c." The plaintiff having proved these patents, and stated that the defendant had lately intruded into these offices , and had received several sums of money from strangers to whom the church had been shown, Bailer J., before whom the cause was tried, called on the plain, tiff's counsel to prove that there were certain known and accustomed fees annex, ed to the offices, and that the defendant had received fees, such as the legal officer could himself recover in a court of law from the persons to whom the church was shown. It was admitted that there were no such regular fees, but that it was usual for different persons to give what sums they pleased : the learned judge nonsuited the plaintiff. A motion, however, was after- wards made for a rule to show cause why the *nonsuit should not be set aside, and a new trial granted : But the Court refused the rule, and determined, that money given to A. and claimed by B., as perquisites of office, cannot be recov- ered by B. in an action for money had and received, unless such perquisites be known and accustomed fees. And Lord Ken yon Ch. J. said : " There is no ground on which this action can be supported. If there had been certain fees annexed to the discharge of certain duties belonging to this office, and the de- fendant had received them, an assize would have lain ; and the action for money had and received to recover fees has always been considered as being substitut- ed in the place of an assize. But there is no pretence to say, that an assize will lie for a gratuity for money given, which the party might have refused to give if he pleased. And with regard to natural justice, the person who performs the duty is, in justice, entitled to the money given for such duty : here the defendant, in fact, performed the service, and on principles of natural justice he is entitled to the reward. If there had been regular fees due for the duties performed, and the defendant had intruded into the offices, the plaintiff might either have supported an action for money had and received, or for disturbing him in his offices." So, the nominee of a perpetual curacy, not having subscribed the articles, or been licensed by the bishop, cannot maintain an action for money had and received against one who is in possession of the profits, and who likewise claims to be curate, and has been licensed by the bishop. Thus/in the case of Powel v. Milbank,(e) which was an action for money had and received, brought by the plaintiff, as nominee of the perpetual curacy of Chester le Street, (r) Mich. 12 Geo. 3. B. R. 1 Terra Rep 399. n. d. *378 Chap. 4.] Had and Received to the Use of Another. S78 against the defendant, who was in possession of the profits, and claimed likewise to be curate. At the trial, the plaintiff set up a title under Mr. and Mrs. Jolliffe, who had nominated *him to this living as a donative, and likewise under a nomination from the Great Seal, which was directed to the bishop in the usual form of presentations. As to the title under the crown, it was proved, that this formerly belonged to the deanery of the collegiate church of Chester le Street, and came to the crown on the dissolution of monasteries, and continued in the hands of the crown till 16 Jac. 1., when the deanery was granted away by the crown, excepting all advowsons, donations, dispositions, and rights of pat- ronage to all churches, vicarages, chapels, &c, and reserving the annual sum of 10/. to be paid to the curate for the time being. No nomination or presentation could be proved by the crown since the 16 Jac. 1., but two or three, and no more, were shown by persons claiming under the grant. The plaintiff then entered on his title under Mr. and Mrs. Jolliffe, and proved the nomination under their seals : that he had taken the oaths of allegiance *and supremacy before them, and that he produced his nomination to the bishop, and tendered himself to subscribe the articles, and make the declaration of conformity before him : but the bishop refused to suffer him to do it, because he had before licensed the defendant ; and the plaintiff never was licensed by the bishop. The Court were of opinion, that the plaintiff could not recover ; and Lord Mansfield Ch. J. said : " It seems impossible to maintain this action against the defendant, who is completely in possession. A license is never necessary if this action can be maintained, and you may as well bring an action for money had and received, where a man is not in possession, instead of an ejectment. Here this must be taken to be a cure of souls, for it is stated to be a parish ; and in that case it is expressly required that there should be a subscription." Where fees of office are demanded and received, but the party paying them disputes the receiver's right to them, or his own liability to be charged, an ac- tion of indebitatus assumpsit for money had and received will lie to try the question between them. Thus, in the case of Andrews v. Cawthorne,(f) which was an action of indebitatus assumpsit for money had and received, to recover back the sum of 3s. 4d. received by the defendant, by order of Dr. Vernon, rector of St. George 's, Bioomsbury, as a burial fee claimed by the Doctor for the burial of A. M. in the new church-yard assigned and belong- ing to the parish of St. George'' s, Bioomsbury, by virtue of the stats. 9 Anne, c. 22. 10 Anne, c. 11. 1 Geo. 1. stat. 1. c. 23. 4 Geo. 1. c. 14, and 3 Geo. 2. c. 19. But the burial fees of this parish had not been fixed by the com- missioners mentioned in the stat. 3 Geo. 2. c. 19. The Court determined, that no burial fee is due at common law : but it may be due by custom in any particular parish : and, with respect to St George's, Bioomsbury, the burial fees must first be fixed by certain commissioners, as directed by the stat. 3 Geo. 2. c. 19. before they are detnandablc. (/)Willes, 536. *379 379 On Promises To Pay Over Money [Part II. So, this form of action lies to recover back monies demanded and received by one, as Mayor, which were not due to him, but to the chamberlain, who afterwards claimed the amount, and compelled the plaintiff to pay it a second time.(g-) This form of action also lies against a post-master, for receiving more money than he is entitled to for the delivery of letters, or for receiving money of a person claiming the privilege of franking. [h) So, if A. receives rent of the tenants of B. under pretence of title, it is said, an action of indebitatus assumpsit for money had and received lies against him ; for in such case an account will lie : and wherever account lies, an i?x- dcbitatus assumpsit will lie. (i) But Mr. Gwillim, in *his edition of Bacon's Abridgment, (&) puts this qucere, whether, when the defendant claims title, an action of assumpsit for the rents received will lie against him ? for he adds, that Wilson J., in such an action, nonsuited the plaintiff; and was of opinion, that the mode of proceeding was either by ejectment, or where that could not be brought, by an action against the tenant for the rent wrongfully paid by him to the person not entitled to it. So, in the case of Liltlewood v. Williams, {I) wheie it appeared that a prac- tice had prevailed during the incumbency of several vicars, that upon the bu- rial of any stranger in the parish of H. certain fees should be paid, of which the vicar took one moiety, and the churchwardens the other, for the use of the poor. The fees were paid to the sexton, who paid over the moieties to the respective parties. A new vicar refused to accede to this arrangement ; he buried several strangers, and procured the sexton, to whom the fees were paid, to pay over the entire fees to himself. Held, that the churchwardens might recover one moiety as had and received to their use. But an action for money had and received cannot be maintained against a churchwarden to recover back dues, which, previous to the commencement of the action, had been paid over to the treasurer of the trustees of a chapel. (?n) 22. OF PRIZE MONEY RECEIVED; AND WHEN THE RIGHT TO DIS- TRIBUTIVE SHARES MAY BE TRIED IN AN ACTION FOR MONEY HAD AND RECEIVED. It is said(tt) to be established upon the authority of a regular series of deci- sions, that the question of " prize or no prize" cannot be tried at common law, but must be tried before the judge of the High Court of Admiralty ; and that the jurisdiction depends not upon the locality, or upon the parties, but up- on the nature of the question, which is such, as is not be tried by any rules of the common law ; but by a more general law, the law of nations, admin - («■) Bonne! v. Foulk, 2 Sid. 4. (I) 6 Taunt 277. 1 Mar. 589. S. C. (k) Smith v. Dennis, Loft, 753. Lord Pc- (hi) Horse/all v. Hundley, 8 Taunt. 136. Ire v. Lord Auckland, 2 Bos. & Pul. 139. 2 Mo. 5. S. C. (i) Per curiam, 2 Mod. 263. 12 Mod. («) Vide 2 Bro. Cas. in Pari. 429. 8yo. 321. 1 Dan. Abr. 27. cd. (fc) 1 Vol. 260. *380 Chap. 4.] Had and Received to the Use of Another- 380 istered by forms best adapted to the subject of its jurisdiction, and the interest of all the parties. But after the court of prize have pronounced sentence in favour of the captors, and the property captured is sold, and converted in mo- ney for the purpose of being duly distributed amongst the captors, an action at common law for money had and received will lie at the suit of any one of the captors for his share, either against the agent (0) who withholds it, or against the person to whom such share may have been * wrongfully paid.(p) So, the captor of a prize may legally assign his share therein before condemnation ; and the assignee may maintain indebitatus assumpsit for money had and re- ceived to his use against the ship's agent for not paying it over to him after condemnation, &c. (q) But every instrument by which a seaman or marine con- veys his prize money or wages in the hands of the public officers, must be drawn in the form prescribed by 26 Geo. 3. c. 63., and the statutes to which it re- fers, (r) otherwise it will be void. For more concerning money had and received, vide post, tit. Principal and Agent. Partners — Infants. . ■ i ■ ■ — ■ .... - .i .-■ — ■■<».,. ■ -- (o) 4 East Rep. 238.3 Bos. & Pul. 257. Taunt. Rep. 1. 6 East Rep. 220. (q) Morroughv. Comyns, 1 Wils, 211. (p) Doug. 324. 1 H. BI. 261. 8 Term Rep. (r) Turtle v. Hartwell, 6 Term Rep. 426. §24. 2 East Rep. 507. 8 East Rep. 502. 1 Macdonald v. Palsey, 1 Bos. & Pul. 161. *381 3S2 On Promises to Repay Money Lent. [Part II. ♦CHAPTER V. ON PROMISES TO REPAY MONEY LENT. Money lent by one person to another, may be recovered by action of indebi- tatus assumpsit, either upon an express or implied pi omise to repay the money. So, where money is advanced to B. at the request of A., who undertakes to be accountable for it, the lender may maintain an action of indebitatus assumpsit against A. for so much money lent and advanced to him. Thus, in the case of Harris v. Huntback,(a) which was an action of indebitatus assumpsit upon a declaration for money lent and advanced by the plaintiff to the defendant, and at his request. And upon the trial, a note of the defendant's was produced in evidence by the plaintiff, in the following words : " 3d December, 1751, Receiv- ed of Mr. Harris the sum of 19Z. on the behalf of my grandson, which I promise to be accountable for on demand. Witness my hand S. Hwitback." It appear- ed that the grandson was an infant at the time of advancing the monej\ The Court of King's Bench determined that this evidence was sufficient to support the declaration. And Denison J. said, " This note is evidence of money lent : and as between the plaintiff and defendant, this is certainly an original under- taking ; and the money was paid at the defendant's request. And there is no privity between the plaintiff and the infant." So, if money be lent to A. and advanced to B. at the request of A., an action of indebitatus assumpsit on an implied promise will lie against A. for so much money lent and advanced tohim.(6) And the declaration, in such case, must be for money lent and advanced to A. ; for money lent to a third person at another's request is bad.(c) It has, however, been determined, that a declaration for money lent to a feme covert at the request of her husband is good. Thus, in the case of Stephenson v. Hardy(d), which was an action of indebitatus *assumpsit, and the declara- tion stated " That the defendant on such a day and year, was indebted to the plaintiff in 30/., for money before that time lent by the plaintiff to Ann the wife of the defendant, in his absence, and at his special instance and request, and being so indebted he promised payment." It was proved at the trial, that (a) 1 Burr. 373. Lister, 2 Wils. 141. S. P. (6) 1 Ventr. 311. 2 Ventr. 36. 6 Mod. 77. (d) 3 Wila. 38S. See also Stone v. Macnmr (c) Carth. 446. 1 Salk. 23. S. C. Marriot v. in error, 7 Taunt. 432. S. P. *382 *383 Chap. 5.] On Promises to Repay Money Lent- 383 the defendant being about to set out upon a voyage to Ireland, desired the plaintiff to lend his (defendant's) wife money, if she should have occasion for it in his absence : the plaintiff accordingly did lend her the sum for which this ac- tion was brought. At the trial, the plaintiff obtained a verdict. But the coun- sel for the defendant afterwards moved the court in arrest of judgment, upon the ground that a husband cannot be indebted for money lent to his wife, be- cause she cannot contract to borrow money ; but they said, that if it had been alleged that the defendant was indebted in so much money advanced by the plaintiff to Ann, the wife of the defendant, at his instance and request, it would have been right enough ; but they argued that the word lent was a technical term, the legal idea or meaning of which is so certainly established and fixed, that it is as impossible for the husband to be indebted for money lent to his wife, as it is for A. to be indebted to B. for money lent to C, a third person, and cited Mar riot v. Lister, 2 Wilson, 141. and 1 Salk. 23. 2 Vent. 36. But Lord Chief Justice De Grey said, " It is admitted, that if the word advanced had been inserted in the count instead of the word lent, it would have been good : Now, I think, (in this case), the word lent is the same as the word advanced ; and that this is not like the cases cited, which are good law ; I think that a loan to the wife, at the request of the husband, is the same in law, as if the loan had been to the husband himself." And of this opinion were all the other judg- es. The motion for arresting the judgment was therefore discharged. Where money is lent on a pledge, the lender may recover it by action of indebitatus assumpsit, unless there be a special agreement to stand to the pledge only. This was determined in the case of the South-Sea Company v. Duncomb,(e) upon a trial at bar, in an action for money lent, it appeared that 8000/. was advanced to the defendant by the plaintiffs in 1720, upon a pawn of 2000/. stock. And the defendant not repaying it, the question to be tried was, whether the plaintiffs could proceed against the person of the defendant, or must stand to the remedy against the stock. And after proof of many par- ticulars, to induce a belief that in these loans no regard was had to personal security ; the court left it to the jury upon this point, that where money is generally lent upon a pledge, it will not deprive the lender of his remedy against the person ; and that to discharge the *person of the borrower, there must be a special agreement to stand to the pledge only." The jury accord- ingly found for the defendant. But in the case of the Governor and Company of the Bank of England v. Glover, {f) which was an action of indebitatus assumpsit brought by the plain- tiffs against the defendant for 454/. 18$. 3d. lent to the defendant by the plain- tiffs : and at the trial, before Holt Ch. J., the case in evidence was as follows. " The defendant, January 31st, 1700, brought a note of Mr. Shepherd, a gold- smith, payable to Robert Stamper, for 454/. 18s. 3d., to the Bank of England, and prayed Mr. Maddocks, the cashier of the bank, to give him a specie bank («) Stra. 919. 2 Barnard. Rep. B. R. 48. S. C. (/) 2 Ld. Raym. 753. 47 *384 884 On Promises to Repay Money Lent* [Part II. note payable to the said Stamper for the said note of Shepherd ; which Mr. Maddocks refused, but told the defendant, that if he would promise to pay the bank the 454Z. 18s. 3d. in case Shepherd did not pay the said note, he would give him a specie bank note, payable to himself, for the said sum ; to which the defendant agreed. Whereupon Mr. Maddocks accepted Shepherd's note, and gave the defendant, Glover, a specie bank note of 454Z. 18s. 3d. This was done upon the Friday. On the Monday following Shepherd's note was sent to him to be paid, but Shepherd refused to pay it. In the mean time Glover gave this bank note to J. S. for a debt owing by him to /. S., and J. S. received the 454Z. 18s. 3d. of the bank." And after debate by the counsel on both sides, Holt Ch. J. was of opinion, that this evidence did not maintain the action. For (by him) this was not money lent, nor laid out for the use of the defendant ; but it was a buying of the note of Shepherd, with a warranty of it from the defendant ; and therefore the plaintiffs might well maintain a special action, but not a general indebitatus assumpsit. It was urged by the plaintiffs' counsel, that this note was only a depositum or pledge. But to that the Chief Justice answered, that that could not be, because it was not redeem- able by the defendant ; and redemption is incident to the nature of a pledge. The plaintiffs therefore were nonsuited. If A. lend stock in the public funds to B., it cannot be recovered in an ac- tion of indebitatus assumpsit as money lent ; but the lender must declare spe- cially upon the promise of the borrower ; because stock is not considered as money, (g) Money lent to game with, or to pay a gaming debt, is recoverable by action of indebitatus assumpsit; for the statute 9 Anne c. 14. s. 1 . only avoids securities given upon a gaming consideration, but does not extend to loans. And upon this subject the following decisions have been made : in the case of Barjeau v. Walms- ley,(h) which was an action of indebitatus assumpsit for money lent: it appear- ed that the plaintiff and defendant gamed together, at tossing up for five guineas at a time : and *the plaintiff having won all the defendant's ready money, lent him ten guineas at a time, and won it, till the defendant had borrowed one hun- dred and twenty guineas. Upon the trial it was contended that, by the stat. 9 Ann. c. 14. the plaintiff could not maintain this action, because that statute avoids all securities entered into or executed for money knowingly lent and advanced to game with ; and the borrowing on an agreement to pay is a secu- rity. But Lee Ch. J. held this was not a case within the act ; for there is not the word contract, as in the statute of usury ; and he said, " the word securities, as it stands in this act, must mean lasting liens upon the estate. The Parlia- ment might think there would be no great harm in a parol contract, where the credit was not like to run high ; and therefore confined the act to neither secu- rities." Wherefore the plaintiff obtained a verdict for 126/. So, in the case of Alcinbrook v. Hall,{i) which was also an action of assump- (g-) 5 Burr. 2530. 2 Bl. Rep. 634. 1 East (A) 2 Stra. 1249. See also 1 BI. Rep. 260. Rep. 1. (i) 2Wils. 309. ♦385 Chap. 5.] On Promises to Repay Money Lent. 385 sit for money paid. The case was this : viz. the defendant having lost a sum of money above 10/. upon a bet at a horse-race, requested the plaintiff to pay it for him, which he did. The defendant objected, that this money being los r at gaming, and recoverable back again by the stat. 6 Ann. c. 14. no action would lie : but the Court held that this was not a case within the statute ; for there is not the word contract, as in the statute of usury ; and judgment was given for the plaintiff. So, in the case of Robinson, Esq. v. Ami Bland, administratrix of John Bland, Bart., (k) which was also an action of assumpsit ; and the declaration contained three counts. The first count was upon a bill of exchange drawn at Paris, by the intestate, Sir John Bland, on the 31st of August, 1755, on him- self in England, for the sum of 672/. sterling, payable to the order of the plaintiff, ten days after sight, value received, and accepted by the said Sir John Bland. The second count was for 700/. , monies lent and advanced by the said plaintiff to the said Sir John Bland, at his request. The third count was for 700/. monies had and received by the said Sir John Bland, to and for the use of the plaintiff. At the trial, a verdict was found for the plaintiff, damages 672/. ; subject to the opinion of the Court of King's Bench, on the following case, which stated, " That the bill of exchange was given at Paris for 300/. there lent by the plaintiff to Sir John Bland, at the time and place of play ; and for 372/. more lost at the same time and place, by Sir John Bland, to the plaintiff, at play ; that the play was very fair ; and there was not any imputa- tion whatsoever on the plaintiff's behaviour ; that there were several gentle- men and persons of fashion then and there at play besides the plaintiff and Sir John Bland ; that in France, money lost at play, between gentlemen, may be recovered as a debt of honour before the marshals of France, who can enforce obedience to their sentences *by imprisonment, though such money is not re- coverable in the ordinary course of justice ; that money lent to play with, or at the time and place of play, may be recovered there, as a debt in the ordinary course of justice, there being no positive law against it ; that Sir John Bland was, and the plaintiff is a gentleman." The question for the opinion of the Court was, whether, under these circumstances, the plaintiff was entitled to re- cover any thing and what, against the defendant ? The Court determined that the plaintiff could not recover upon the count on the bill of exchange, nor for the money won at play ; but that he was entitled to recover on the second count for the amount of the money lent. And Lord Mansfield Ch. J. said, " In the present case the facts stated scarce leave room for any question ; because the law of France and of England is the same. The first question is, whether the plaintiff is entitled to recover upon this bill of exchange by force of the writing. The second question is, whether he is entitled to recover upon the original con- sideration and contract, by the justice and equity of his case, exclusive of any assistance from the bill of exchange, and taking that to be a void security. As to the first question, the defendant has objected that the consideration of the (/.) 2 Bur. 1077. *386 386 On Promises to Repay Money Lent- [Part II. bill of exchange is wholly money won und lent at play : therefore, by force of the writing, the plaintiff cannot by the law of England recover; such security being utterly void ; and no doubt the law of England is so. ♦' Then as to the other counts for money had and received to the plaintiff's use, and for money lent and advanced to him. Consider it distinctly, as to each part ; the money won, and the money lent. First, as to the money won. By the rule of the law of England no action can be maintained for it. To this it has been objected, that the contract was made in France : there- fore, ex comitate, the law of France must prevail, and be the rule of determina- tion. I admit that there are many cases where the law of the place of the transaction shall be the rule ; and the law of England is as liberal in this re- spect as other laws are. This is a large field, and not necessary now to be gone into. The point that the defendant must rest upon, in the present case, is this ; the money was won in France ; therefore it ought to be governed by the law of France ; and it is recoverable there before the marshals of France, who can enforce obedience to their sentence. The parliament of Paris would pay no regard to their judgment, nor carry it into execution. The marshals of France proceed personally against gentlemen, as to points of honour, with a view to prevent duelling. They could not have taken cognisance of the present matter. It was not within their jurisdiction : it was no breach of hon- our in France ; for the money was payable in England ; and Sir John Bland could not be said to have forfeited his honour till the ten days were out, and till the money had been demanded in England, and payment refused there. Sir *John Bland was actually dead in a very short time after he gave the note. The marshals of France can only proceed personally against the gentleman who loses the money, but have no power over his estate or representatives after his death. Therefore, as to the money won, the contract is to be considered as void by the law of France, as well as by the law of England, which makes it unnecessary to consider how far the law of France ought to be regarded.'' — Next, as to the money lent : The sense of the legislature seems to me to be agreeable to the cases that have been cited. The act of 16 Car. 2. c. 7. s. 3. does not meddle with money lent at play, but as to money (exceeding 100/.) lost and not paid down at the time of losing it, it says, " that the loser shall not be compellable to make it good, but the contract and contracts for the same, and for every part thereof, and all securities shall be utterly void," &c. — The words ' contract and contracts for the same,' are not in 9 Ann, and I dare say were designedly left out : it only says, " that all notes, bills, bonds, judgments, mortgages, or other securities, &c. for money won or lent at play, shall be utterly void," &c. Here the money was fairly lent without any im- putation whatsoever. Sir John Bland, the borrower of it being in a foreign country, might very naturally have been distressed under his then situation amongst foreigners for want of having ready money, or knowing how to procure it : and it might be even a kind and generous, and commendable act to lend it to him at that time, to extricate him from his difficulties as he was then circumstanced. The jury have left it quite open to the court to deter- *387 Chap. 5.] On Promises to Repay Money Lent. S87 mine whether any thing, and what, is recoverable. As to the money won, we think it cannot be recovered : as to the money lent, the plaintiff is entitled to it, both by the law of England and by the law of France.'''' So, in the case of Wettenhall v. Wood, (I) which was an action of indebita- tus assumpsit for money lent. The defence set up was, that the plaintiff kept a common gambling house ; that the defendant being there at play with several other persons, and having lost all his money, applied to the plaintiff for the loan of some money, for the purpose of continuing the play, when the plaintiff lent him the sum for which the present action was brought. Lord Kenyon Ch. J., before whom the cause was tried, was clearly of opinion, " that this money was recoverable ; for that the statute 9 Ann. c. 14. only avoided securities for money lent to play with, and did not extend to cases of mere loans, without any security taken." He therefore directed a verdict for the plaintiff. But in the case of Cannan v. Bryce,(m) it was determined, that money *lent and applied by the borrower for the express purpose of settling losses on illegal stock-jobbing transactions cannot be recovered by action ; the act of paying as well as receiving being expressly prohibited by the 5th section of the stock- jobbing act 7 Geo. 2. c. 8, So no action lies for money lent for the ransom of a ship, contrary to the stat. 45 Geo. 3 c. 72. (n) (J) 1 Esp. Rep. 18. Et vide Mcinbrook v. (>n) 3 Barn. & Aid. 179. Hall, ante 335. (?i) Webb v. Brooke, 3 Taunt. 6. "388 389 On Promises to Repay Money Paid. [Part II. ♦CHAPTER VI. ON EXPRESS AND IMPLIED PROMISES TO REPAY MONEY PAID AND EXPENDED FOR THE USE OF ANOTHER. Where a person has paid and expended his own money for the use of ano- ther, either at his request or by compulsion, the law raises an implied promise of repayment, and upon which an action of indebitatus assumpsit will lie. (a) The subject of the present chapter will be considered under the following heads : viz. 1. OF MONEY PAID AND EXPENDED FOR ANOTHER, EITHER UPON AN ' EXPRESS OR IMPLIED REQ.UEST : AND IN WHAT CASES AN ACTION OF INDEBITATUS ASSUMPSIT WILL LIE TO RECOVER THE MONEY SO PAID. 2. OF VOLUNTARY PAYMENTS MADE WITHOUT REQJJEST, AND THE PARTY PAYING NOT BEING UNDER ANY LEGAL LIABILITY TO PAY, &c. 3. OF PAYMENTS MADE ON ACCOUNT OF ANOTHER UNDER A DIS- TRESS FOR RENT, IN ORDER TO REDEEM THE GOODS, &c. DISTRAIN- ED: AND OF PAYMENT BY A TENANT OF THE LANDLORD'S TAXES, &c. AND WHEN SUCH PAYMENTS MAY BE RECOVERED BY ACTION OF INDEBITATUS ASSUMPSIT. 4. OF MONEY PAID FOR ANOTHER UPON BILLS OF EXCHANGE, PROM- ISSORY NOTES, OR OTHER SECURITIES. 5. OF MONEY PAID OR SECURITIES GIVEN BY A SURETY OR BAIL ON BEHALF OF THEIR PRINCIPAL. 6. OF CONTRIBUTION BETWEEN CO-SURETIES, OR OTHER PERSONS JOINTLY LIABLE FOR A DEBT OF THEIR PRINCIPAL : AND FOR CON- TRIBUTION * AMONGST CO-DEFENDANTS FOR DAMAGES RECOVERED AGAINST THEM JOINTLY EITHER FOR A TORT OR TRESPASS COM- MITTED BY ALL OF THEM. 7. OF CONTRIBUTION BY THE OWNERS OF ADJOINING PROPERTY TO- («) 3 Bl. Com. 163. Carfh. 446. *389 *390 Chap. 6] On Promises to Repay Money Paid. 390 WARDS THE BUILDING, &c, OF PARTY WALLS, AND OF THE STAT- UTE RELATING THERETO. 8. OF A COMPULSORY PAYMENT OF THE DEBT OF ANOTHER, MADE EITHER BY AN ATTORNEY, SHERIFF, GAOLEK, OR OTHERS. I. OF MONEY PAID AND EXPENDED FOR ANOTHER EITHER UPON AN EXPRESS OR IMPLIED REQ.UEST: AND IN WHAT CASES AN ACTION OF INDEBITATUS ASSUMPSIT WILL LIE TO RECOVER THE MONEY SO PAID. If money be paid by A. at the request of B. to a third person, or if it be ex- pended in the purchase of goods, or in payment for work, &c. on B.'s account, an action of indebitatus assumpsit for money paid will lie at the suit of A. against B. for the amount of such money either upon an express or implied promise of repayment. Thus, in the case of Alcinbrook v. Hall,(b) which was an action of indebitatus assumpsit for money paid by the plaintiff for the defendant at his instance and request. The defendant having lost a sum of money, above ten pounds, upon a bet at a horse-race, requested the plaintiff to pay it for him, which he did ; the defendant objected, that this money being lost at gaming, and recoverable back again by the statute 9 Ann. c. 16., this action would not lie ; but the court held, that this was not a case within the statute ; for there is not the word contract as in the statute of usury ; and gave judgment for the plaintiff. So, where a dinner was ordered at a tavern by the authority of two persons who had laid a wager of a rump and dozen, whether the one was older than the other; if the winner pays the bill, he may maintain this form of action against the loser to recover the amount so paid, (c) But no action will lie for money paid for settling losses on illegal stock-jobbing transactions : such pay- ments being expressly prohibited by the stat. 7 Geo. 2. c. 8. s. 5.(d) Where a carrier, by mistake, delivered to B. goods consigned and sold to C, and B. appropriated the goods to his own use ; and the carrier after- wards on demand and without action, paid to C. their *value ; it was held, that the carrier might recover the amount against B., as money paid to B.'s use ; but not as the price of goods sold and delivered to B.(e) But in a subsequent case of Lills v. Laing,(f) which was an action for money paid ; where at the trial before Lord Ellenborough Ch. J., it appeared in evidence that the plaintiffs being wharfingers had a quantity of canvass left at their wharf consigned to a person of the name of Fletcher : but, by mistake, it was carried away by the defendant, who had cut it up into sails before he discover- ed that it was not intended for him. The plaintiffs were then called upon by (A) 2 Wils. 309 Et vide ante 385. (e) Broion v. Hodgson, 4 Taunt. 189. (c) Hussey v. Cnckett, 3 Campb. 168. (/) 4 Campb. Hi (d) Cannan v. Bryce, ante, 387. *301 391 On Promises to Repay Money Paid- [Part II. Fletcher for the value of the canvass, which they accordingly paid ; and for the amount of which, the present action was brought, as so much money paid to and for the use of the defendant : on behalf of the plaintiffs it was contended, that they might waive the tort committed by the defendant in carrying away the canvass from their wharf, and that the law would raise a promise on his part to repay to them the mone) r , which they had been compelled to pay by his default. But his lordship held that the plaintiffs ought to have declared spe- cially, and directed a nonsuit. So, an action for money paid cannot be maintained unless there be a request to pay it either express or implied. And therefore in the case of Lightfoot v. Creed, (g) which was an action of indebitatus assumpsit for money paid. The facts were as follow : the defendant on the 23d October, had sold to the plain- tiff 3000?. three per cent, consols, to be delivered on the 30th of the same month ; that on that day, stock having in the mean time risen in price ; the defendant refused to make the transfer; in consequence of which, the plaintiff employ- ed a broker to purchase stock to the same amount, which was accordingly transferred to the plaintiff on the 31st ; that the loss sustained by the plain- tiff, by the defendant's not performing his contract, was 457. ; and that the defendant after the action commenced offered to pay that sum with- out costs. This action was brought to recover the 45Z. But the Court determined that the plaintiff could not recover that sum in this form of action ; for he ought to have declared specially upon the contract. And Gibbs Ch. J. said, " The defendant contracted to transfer stock on a certain day : if he did not transfer the stock on that day, the plaintiff was entitled to call on him to make good, in the shape of damages, the loss sustained by the defendant's ab- staining from the performance of his contract. Instead of that, the plaintiff purchases the stock, and sues the defendant for the difference, who never au- thorised him to purchase it, either expressly or impliedly. From the circum- stance of the defendant's having offered to pay the 451., it cannot be shewn that the plaintiff thus laid *out this money for the defendant's use. The plaintiff 'a claim on this count, therefore, cannot be supported." 2. OF VOLUNTARY PAYMENTS MADE WITHOUT REQUEST ; AND THE PARTY PAYING NOT BEING UNDER ANY LEGAL LIABILITY TO PAY, &c. No person can by a voluntary payment of the debt of another make himself that man's creditor, and recover from him the amount of the debt so paid, (h) So, where money is paid against the express consent of the party for whose use it is supposed to have been paid, no action will lie for the money so paid. Thus, in the case of Stokes and another, overseers of St. Vedast, otherwise Foster v. Lewis and another, overseers of St. MichaeVs he Quern, (i) which (?) 8 Taunl. 268. 310. (A) Per Lord Kenyon, 8 Term Rep. 813. (i) 1 Term Rep. 50. *392 Chap. 6.] On Promises to Repay Money Paid. 392 was an action for money paid, laid out, and expended by the plaintiffs, to the use of the defendants ; and the question arose upon the payment of a sexton's salary. At the trial before Lord Mansfield Ch. J., it appeared, that by the act 22 and 23 Car. 2. c. 11. which was an additional act for rebuilding the city of London after the great fire, and uniting parishes, &c., amongst others, the pa- rishes of St. VedasCs and St. Michael he Quern were united ; and that, since that time, one set of officers had served for the two parishes, the election of whom had always been made at a joint vestry ; that only nine vacancies in the office of sexton had happened since, all of which had been filled up agree- ably to this custom ; that, in the year 1759, the sexton's salary was fixed at 20/. per annum, which was agreed to be paid equally by both parishes ; that the overseers of St. Vcdasfs had paid the sexton who was last chosen the whole sum ; to recover a moiety of which this action was brought. The defence set up was, that the last election of a sexton was not a joint one ; and that the pa- rish of St. MichaeVs claimed a right of choosing a separate sexton for them- selves; of which they had given notice to the other parish. The Court were of opinion that this action could not be maintained ; and Lord Mansfield. Ch. J. said, " The dispute arises concerning the election of a sexton, and the way of trying it is by refusing to pay the sexton elected ; the whole is notoriously in litigation. Under these circumstances, therefore, one parish paid the quota of the other in spite of their teeth : then, can it be said that this action for money paid, laid out, and expended, will lie ? certainly not. This action must be grounded either on an express or implied consent : here is neither. Another strong objection to this action is, that it is trying the right of the sexton without his being a party to it." *3. OF PAYMENTS MADE ON ACCOUNT OF ANOTHER UNDER A DIS- TRESS FOR RENT, IN ORDER TO REDEEM THE GOODS, &c, DIS- TRAINED: AND OF PAYMENT BY A TENANT OF THE LANDLORD'S TAXES, &c. 1. Of Payment or Arrears of Rent under a Distress.] — The goods of A. on the premises of B., C. and D. were distrained by the landlord for rent in arrear ; and A. was obliged to pay the rent to redeem them. It was held that A. might maintain an action of assumpsit for money paid to the use of B., C. and D. although the two latter had previously assigned their interest in the premises to B. Thus, in the case of Exall against Partridge and two others,(/c) which was an action upon promises for money paid, &c. : at the trial before Lord Kenyon Ch. J., it appeared, in evidence, that the three defendants were lessees of certain premises, by deed, from one Welch, to whom they thereby covenanted to pay the rent, and that two of the defendants afterwards, with the plaintiff's knowledge, assigned their interest to Partridge, the other co-lessee, who was a coach-maker : subsequent to which assignment, the plaintiff put his carriage upon the premises, under the care of (k) 8 Term Rep. 308. 3 Esp. Rep. 8. S. C. 48 *393 393 On Promises to Repay Money Paid' [Part II. Partridge, where it was taken as a distress by Welch, the landlord, for rent in arrear. And the plaintiff, in order to redeem it, was obliged to pay the rent due, taking at the time a receipt from Welch's attorney, as for so much re- ceived on account of the three defendants. The action was brought to recover that sum ; but the plaintiff was nonsuited, on the ground that the action should have been brought against Partridge alone, he being the person in the sole pos- session of the premises at the time, with the knowledge of the plaintiff, who had trusted him only with the possession of his properly, and he also being the person ultimately responsible to the other two defendants ; and therefore it was said that the money must be taken to have been paid to his use only. However, upon a motion to set aside this nonsuit, his lordship changed his opinion ; and the court, after argument, determined that the action was rightly brought against the three defendants, who were all liable by their covenant to pay the landlord the rent in question." But if the goods had been sold under the distress, and the landlord had re- ceived the money, this form of action could not be maintained. (I) 2. Of Payment of Landlord's Taxes, &c. by a Tenant.] Where the tenant 01 premises under a lease, and at a rent payable half-yearly, agreed to pay all taxes except the landlord's property-tax, which the landlord agreed to allow, and the tenant agreed to lay out 20/. in *repairs, which the landlord also agreed to allow ; but afterwards distrained for half a year's rent, and sold to the whole amount, without allowing either for repairs or property-tax, which he knew the tenant had paid to the collector : it was determined that the ten- ant might recover, in respect of the property-tax, but not in respect of the re- pairs.{in) So, in the case of Dawson v. Linton, (n) where the question was as to the liability of the defendant to repay to the plaintiff the sum of 20/. 14s. for a drainage-tax. It appeared, that the plaintiff had been tenant to the defen- dant of a farm situate within a certain district, liable to a drainage-tax of 1*. per acre : he paid his rent in full to the defendant ; and quitted the farm on the 6th of April, 1820, but did not pay the drainage-tax then due. When he quitted, by the permission of the incoming tenant he left a stack of wheat on the premises. A demand being, in July, 1820, made on the incoming tenant by the collector for the year's drainage-tax due 6th of April, 1820, the tenant refused to pay it; and a warrant of distress having been obtained, the plaintiff's stack of wheat was distrained, and in consequence the plaintiff was obliged to pay the amount of the tax. By the local act it was provided, that the tax should be paid by the tenants of the lands and grounds charged with the same respectively ; and that such tenants should and might deduct and retain the same out of the rents payable to their landlord ; and also that in case of neglect to pay, the tax might be levied by distress on the goods and chattels which should be found on the lands charged with the tax in arrear ; (l) Mcores-.Pyrke, 11 East 52. See also (m) Graham v. Tate, 1 Maulc& Sel. 609. Greaves v. Htpke, 2 Earn. & Aid. 131. (>i) 5 Barn. & Aid. 521. *394 Chap. 6.] On Promises to Repay Money Paid. 394 and if the same should be untenanted, or no sufficient distress could be found, the lands and grounds chargeable should remain as a surety for the payment thereof, and might be taken possession of, and let in discharge of the tax. It was contended at the trial, that the succeeding tenant was liable for the tax, and therefore that the action should have been against him. The plaintiff, however, had a verdict. And the Court of King's Bench were of opinion that that verdict was right. And Abbott, Ch. J. said, " It is clear that this tax must ultimately fall on the landlord, and that the plaintiff has paid his money in discharge of it ; he has, therefore, a right to call upon the land- lord to repay it to him. I think the meaning of the act was to make the tax payable by the tenant in whose time it became due, and who received the benefit of the drainage. If it had then been paid, the plaintiff might have deducted it from his rent ; but as he was not called on to pay it till after the rent had been paid, I think he has now the right to require the landlord to reimburse him. It might be very hard if the new tenant were to be compelled to advance mo. ney to pay the tax for his predecessor, even though ultimately he would be en- titled to recover it. Here the action is only for money paid for the defendant, *and not for any special damage arising from the distress. The verdict is therefore right." But where a tenant continues to pay the landlord's taxes for several succes- sive years, without deducting them out of his future rent, he cannot recover them by action at law. Thus, in the case of Spragg v. Hammond, (o) which was an action brought to recover the sum of 48Z. 5s. Id. as so much paid by the plain- tiff to the defendant's use : the facts of the case were these : The plaintiff held certain premises under a lease from the defendant, the lease being silent as to the payment of the land-tax. In 1814, the defendant distrained; and at that time insisted on the payment of the rent in arrear, refusing to let the land- tax be deducted ; and accordingly received his rent in full, alleging that he had nothing to do with the tax in question. The plaintiff about this time or shortly after (viz. on the 13th December, 1814,) applied by his attorney to have the sums so paid refunded, and protested against his future liability to pay. The defendant, however, still refused to deduct, professing his readiness to ap- pear to any action that might be brought ; and from this time, down to 1819, the plaintiff went on regularly paying, without deducting or claiming to deduct out of the rent the tax in dispute, or renewing in any sort the objection of his non-liability to pay. The Court determined, upon a review of all the cases on the subject, that the plaintiff could not recover any of the sums so paid for land- tax. (o) Brgd. & Bing. 59. See also Dmby v. Miore, 1 B.irn. & Aid. 123. S. V.Andrexc and Hancock, 1 Brod. & Bin<*. 37. 3 Moore, 279. S. P. Nor can the tonant plead such payments in bar in replevin to a distress for rent. Slubbs v. Parsons, 3 Barn. & Aid. 516. *395 395 On Promises to Repay Money Paid. [Part II. 4. OF MONEY PAID FOR ANOTHER UPON BILLS OF EXCHANGE, PROM- ISSORY NOTES, OR OTHER SECURITIES. If A. accepts a bill of exchange merely for the accommodation of B. and when it becomes due an action is brought thereon by the holder against A., who defends it at the instance of B., and the holder recovers the full value and costs, which are afterwards paid by A., the latter may maintain an action of indebitatus assumpsit against B. for the amount thereof, as for so much money paid, laid out, and expended to his use. Thus, in the case of Howes v. Mar- tirty(p) which was an action of assumpsit for money paid, laid out and expended by the plaintiff, to the use of the defendant. Upon the trial these facts ap- peared in evidence : the plaintiff and defendant having lived in habits of inti- macy, the plaintiff had been induced, out of motives of friendship, and merely to accommodate the defendant, to accept several bills of exchange on his ac- count. These bills had all been regularly taken up, as they became due, by the defendant, except the last, which was for 20tf. This bill *had eome into the hands of one Grecnsill, and the defendant being unable to take it up when due, had prevailed upon Grecnsill to accept 16/. in part, and the plaintiff's ac- ceptance for six guineas, being the balance of the bill, with the interest then due for the remainder. This bill for six guineas not being paid when due, Greensill brought his action on it against Howes? the now plaintiff, as the ac- ceptor. On the action being brought, the plaintiff acquainted Martin with the circumstance, and he desired the present plaintiff to defend the action, repre- senting to her, that, as she had never received any consideration for the accep- tance, she might safely do it. In consequence of which representation she did) defend the action ; but Grecnsill the plaintiff in that action,~obtained a verdict against her for the amount of the bill, which, with the costs, amounted to 32Z. ; to recover which sum this action was brought : but the counsel for the defen- dant objected that this case came within the statute of frauds, 29 Car. 2. c. 3. the object of the action being to recover from the defendant a sum of money which was the debt and costs in an action against the plaintiff herself, on her own acceptance, and which, therefore, was to be deemed her own debt ; but as there was no note in writing the action was not maintainable. Lord Kenyon Ch. J. overruled this objection, and held that the case was not within the statute of frauds. His Lordship said, " that, in this ease, it appear- ed that the plaintiff never had any consideration whatever for the acceptances, which were given merely on the defendant's account, and for his use ; that the defence to the action on the note was on his account, and from whence he could have derived a benefit ; that as he therefore was personally interested, and di- rected the defence to be made, by which he might have been benefitted, that the money must be considered to have been laid out by the plaintiff on his ac- (/>) 1 Esp. Ron. 162. '396 Chap. 6.] On Promises to Repay Money Paid. 396 count, and to his use ; and that she therefore was entitled to iecoverit back from him." So, where A. lent his acceptances to B. before his bankruptcy, but which were not paid till afterwards, A. may maintain an action against the defendant for money paid to his use, notwithstanding his bankruptcy and certificate, and notwithstanding the defendant, before his bankruptcy, gave his receipt to A. ac- knowledging the receipt of so much money as the acceptances amounted to.(^) But, in the case of Houle v. Baxter •,(/*) which was also an action of assnmp' sit on promises ; and the first count of the declaration stated that one E. Cap- per on the 22d of September, 1796, drew a bill of exchange upon the defendant for 25/., payable at three months after date to Capper's order, which Capper indorsed to the plaintiff, and the defendant accepted. The second count, after setting out the bill and *acceptance, and the indorsement by Capper to the plaintiff, further stated an indorsement and delivery of the bill to one W. Abud ; a present- ment of it, when due, to the defendant for payment, and his refusal ; whereupon the plaintiff was obliged to pay Abud the money. There was also a count for money paid, Sfc. The defendant pleaded, that he became bankrupt on the 7th November, 1796. At the trial a verdict was found for the plaintiff, subject to the opinion of the Court of King's Bench on the following case : " The defen- dant, before his bankruptcy, kept a retail silversmith's shop, and dealt with Capper, the drawer of the bill, who was a working silversmith. On the 22d of September, 1796, the defendant ordered a parcel of goods of Capper, and in order to enable him to raise silver to make up such goods the defendant accept- ed the bill of exchange mentioned in the declaration : Capper indorsed the bill ; and the plaintiff, at Capper's desire, though without the defendant's privity, in- dorsed it likewise, receiving no value or consideration whatever for so doing, but merely to give additional credit to the bill. The bill being thus drawn, accept- ed, and indorsed, Capper took it to one Abud, a refiner, who, on the credit of the bill, delivered to Capper a part of the amount in silver, and gave him the rest in cash. This silver was afterwards manufactured by Capper into the goods ordered by the defendant, which were accordingly delivered to him. The defendant became a bankrupt on the 7th of November, 1796, and after- wards obtained his certificate. On the 24th of December, 1796, being the day before the bill became due, the plaintiff went to Abud, and took it up, paying him the amount." Grose J. delivered the opinion of the court as follows : " In this case the plaintiff contracted no liability at the defendant's request. He never became surety for him in this transaction. His demand against the defendant, the ac- ceptor, arises solely upon the bill, and there was nothing to prevent his proving it under the commission. We are therefore of opinion, that the defendant's bank- ruptcy is a bar to thisaetion, and consequently that there ought to be judgment for the defendant." (<7) Snailhv. Gale, 7 Term Rep. 364. But on Bills, 5S0. 5 Ed. see the stat. 49 Geo. 3. c. 121. s. 8. and Chitty (r) 3 East Rep. *397 397 On Promises to Repay Money Paid- [Part II. So, where A. and B M for (heir mutual accommodation, exchange acceptances for acceptances, or bills of exchange for bills of exchange, for equal sums, and both parties negotiate the bills ; and after this transaction A. and B. both be- came bankrupts ; and the estate of A. pays more upon B.'s acceptances than the estate of B. does upon A.'s acceptances ; no action of indebitatus assump- sit will lie against B. upon an implied promise to pay the amount of the differ- ence so paid by the assignees of A. ; the remedy being upon the bills of ex- change only, which were provable under the commission of B.(s) ♦But where a bill is paid for the honour of the drawer, he is liable to an action of indebitatus assumpsit for money paid for the amount of the bill. This was settled in the case of Smith and another v. Nissen and another,(f) which Avas an action for money paid, laid out and expended. At the trial, before Bub ler, J. a verdict was found for the plaintiffs under the following circumstances : One Taubert sent an order to the defendants for goods, and desired that they would draw a bill on the plaintiffs for the value, which the defendants accord- ingly did after they had sent the goods. The plaintiffs, in a letter written to the defendants on the 23d September, said, that they could not accept the bill on account of Taubert at present, because they, (the defendants) had sent a larger quantity of goods than were ordered ; adding, that they had written to Taubert for further directions. Two days afterwards the defendants wrote to the plaintiffs, pressing that the bill might be taken up ; and on the 28th of the same month received for answer, that the plaintiffs had written to Tau- bert, and were waiting for his answer before they could accept ; and that they had desired the holder to keep the bill in the mean time. On the 14th Octo- ber, Taubert, in a letter to the plaintiffs, took notice that the orders had been exceeded, but desired that they would accept the bill, and draw upon Govertz at Hamburgh, for the amount; in consequence of which the plaintiffs drew on Govertz, who refused to accept ; and afterwards the plaintiffs paid the bill for the honour of the drawer ; to recover back the amount of which the action was brought. A motion was afterwards made for a rule to show cause why the verdict should not be set aside, upon the ground that the plaintiffs had ac- tually accepted the bill drawn upon them. The counsel for the defendant ad- mitted that notwithstanding Taubert'' s letters, the plaintiffs might have chosen whether they would accept or not: but he contended, that they had only a right to draw on Govertz, upon condition that they themselves should accept the bill drawn upon them, and therefore that their drawing upon Govertz was an implied acceptance of that bill. But the court held, " that what the plaintiffs had done did not amount to an acceptance, for they never meant to make themselves lia- ble, unless the bill, drawn upon Govertz, was accepted and paid ; and they would not imply a contract which the parties themselves had refused to enter into." (.») Buckler v. Buttwant, 3 East Rep. 72., (t) 1 Term Rep.,269. and see Cowley v. Dunlop. 7 Term Rep. 565. *393 Chap. 6.] On Promises to Repay Money Paid. 398 5. OF MONEY PAID OR SECURITIES GIVEN BY A SURETY OR BAIL ON BEHALF OF THEIR PRINCIPAL. Where money is paid by a surety in discharge of a bond entered into by him for his principal, he may recover against his principal the amount, by action of indebitatus assumpsit for money paid, upon an *implied promise to pay, &c.(w) So, a surety in a bond who pays the debt of his principal after a commission of bankruptcy issued against the latter, is not barred by the cer- tificate of the principal, though the penalty of the bond was forfeited before. Thus, in the case of Taylor v. Mills and Magnall,{v) which was an action of indebitatus assumpsit for money paid, laid out, and expended by the plaintiff to the use of the defendants. The defendants, Mills and Magnall, were part- ners with one Bailey ; and in order to raise money, the partner had entered into bonds. In the year 1765, Bailey withdrew from the partnership ; and wishing to be discharged from these bonds, application was made to the plain- tiff to become surety instead of Bailey. He did so. Upon which the former bonds were delivered to Bailey to be cancelled ; the bonds became due ; then the defendants became bankrupts. When the obligees had got as much money as they could from the partnership estate, and which amounted to no more than 6s. in the pound, they came upon the plaintiff for the residue. He accordingly paid it ; and then brought his action for money paid, laid out, and expended. At the trial, an objection was made that the bonds were not executed by Mag- nall ; in answer to which an affidavit was produced by Magnall, in which he admitted he was liable as well as the rest, and would have executed the bonds if he had been in the country at the time. Upon this the jury found a verdict for the plaintiff. A motion, however, was afterwards made for a new trial, but the Court of King's Bench were clearly of opinion that the certificate was no bar of the action, and that the plaintiff was entitled to recover. So, also the arrears of an annuity paid by a surety for the grantor after his bankruptcy, is not barred by his certificate, (w) But if a surety, (who becomes bound in a bond with his principal for payment of money by instalments,) takes a bond from his principal, conditioned for payment of the amount of the instalments before the first of them will be due ; and before that time the principal become bankrupt, and obtain his certificate ; and afterwards the first bond be discharged by the surety, he cannot maintain an action of assumpsit against the principal for money paid to his use ; his remedy being only upon the bond, (x) Where a person becomes bail to an action he is entitled to recover from the principal in this form of action, all monies paid and expenses he has incurred (u) 2 Term Rep. 104. Esp. N. P. 96. and 2 Barn. & Cres. 316. (v) Cowp. 525. See also Paidv. Jones, 1 (.r) 2 Term Rep. 100. Toussaint v. Mar- Term Rep. 599. tinnant, see also Martin v. Court, 2 Term (io) Welsh v. Welsh, 4 Maule & Sel. 333. Rep. 640. Hodgson v. Bell, 7 Term Rep. 97. Flanagan v. Watkins, 3 Barn. & Aid, 186., and Ex parte Walker, 4 Ves. 373. *399 399 On Promises to Repay Money Paid. [Part II. in sending after the principal in order to take him, for the purpose of making a render ; but he cannot recover the *costs of an action brought for the trouble, &c. of seeking after the principal, (y) If a person gives a promissory note for the debt of another, -which the creditor accepts in payment, it has been held, that this amounts to a payment of money to the party's use, and may be recovered as such. Thus, in the case of Bar- clay and Proctor v. Gooch,(z) which was an action of assumpsit brought to recover a sum of 50/. as so much money paid to the use of the defendant. The facts were these : The plaintiffs were brewers, and the defendant was a publican, who rented one of their houses, at which a benefit club was held ; the members of the club distrusting the credit of Gooch, (the then landlord,) the plaintiffs became his security for the amount of the subscription money contained in the box ; this amounted to 50/. Gooch afterwards became insolvent, and the club called upon the plaintiffs for the money as his security, and took their note of hand for it, payable with interest. The question was, whether this was a payment of money to the use of the defendant on which the plain- tiffs could recover on the count for money paid 1 And upon which Lord Kenyon Ch. J. held, " That the club having consented to take the note from the plain- tiffs, it was as payment to them of the money due by the defendant ; it was payment of money to his use, and so the action was maintainable." But in the case of Taylor v. Higgins,(a) where it appeared that the defen- dant being indebted to Mr. Cresswell, and being pressed for payment, he pre- vailed on the plaintiff, Taylor, to join with him in a bond to Cresswell for 150/. That in August, 1800, the plaintiff and the defendant being both arrested, and then in custody at the suit of Cressicell, in an action on the bond, the defendant paid the costs, and part of the debt, and, together with the plaintiff, executed to Cresswell a. new warrant of attorney for 120/., the remainder of the debt. In December following the defendant was arrested at the suit of Cresswell, and detained in custody ; and in July, 1801, the present plaintiff and the defendant, being both then in custody, a declaration by way of detainer, was lodged against them by Cresswell ; and on the 10th of August following the defendant took the benefit of an insolvent debtor's act, and was discharged under it. In September, 1802, the defendant was arrested, and holden to bail in this action by Taylor for 120/. on the affidavit to hold to bail before mentioned : where- upon application was made by the defendant to Cresswell, to know whether Taylor had paid him any money on account of the defendant, which was an- swered in the negative ; but that after the defendant's discharge under the insolvent debtor's act, Taylor had given Cresswell a new bond and warrant of attorney for the * whole debt of 120/., (for which this action was brought,) no part of which had yet been paid ; but as appeared by the plaintiffs affidavit, he had at that time paid to Cresswell about 71. or 8/. for costs : and he also swore, (y) Fisher, v. Fallows, 5 Esp. Rep. 171. (a) 3 East Rep. 169. See also Maxwell (z) 2 Esp. Rep. 871. See also 3 Wills. 14. v. Jameson, 2 Barn. & Aid. 51. S. P. Per curiam, S. P. *400 *401 Chap. 6.] On Promises to Repay Money Paid- 401 that when such new security was given it was accepted as payment and satis- faction of the whole debt ; and the old bond and warrant of attorney were cancelled. Upon this case Lord Ellenborough Ch. J. (after consulting with the other judges of the court,) said : " There is no pretence for considering the giving this new security as so much money paid for the defendant's use. Sup- posing even the case of the note of hand or bill of exchange, as the current representative of money to have been rightly decided, still this security, consist- ing of a bond and warrant of attorney, is not the same as that, and is nothing like money." «. OF CONTRIBUTION BETWEEN CO-SURETIES, OR OTHER PERSONS JOINTLY LIABLE FOR THE DEBT OF THEIR PRINCIPAL : AND FOR CONTRIBUTION AMONGST CO-DEFENDANTS FOR DAMAGES RECO- VERED AGAINST THEM JOINTLY, EITHER FOR A TORT OR TRES- PASS COMMITTED BY ALL OF THEM. Where two or more persons become surety for another, and one of the sureties pays the debt of the principal, he may maintain an action of indebita- tus assumpsit for money paid against each of the co-sureties either upon an ex- press or implied promise to pay his aliquot proportion of the money so paid, re- gard being had to the number of sureties. (129) Thus, if S. and B. are bound in an obligation to J. S. to pay a certain debt for J. D., and the obligation be- ing forfeited, B. says to S., that if he will pay all the principal to J. S. he promises to repay him one moiety, and therepon S. pays all accordingly to J. S., S. may have an action upon the case upon this promise against B., if he will not pay him the moiety ; for though he might have been charged for the whole debt by the obligee, yet the payment thereof without suit, and in dis- charge of B., is a good consideration to maintain the action, (b) So, in the case of Cornell v. Edwards, (c) which was an action of indebita- tus assumpsit for money paid by the plaintiff, as administrator, under the follow- ing circumstances : " John Cuwell, ihe plaintiff's intestate, having entered in- to a joint and several bond with seven other persons, two of whom were prin- cipals, and the five others, as well as himself, sureties, was, together with his co-sureties, called upon by the obligee, to pay the sum engaged for ; the de- fendant, and two of the other sureties paid each a part of that sum, but the present plaintiff's intestate paid the residue. Upon this the plaintiff, consider- ing the defendant, *and one of the two sureties, who had already contributed as (6) Bagg v. Sladf, 1 Rol. Abr. 20. pi. 15. (c) 2 Bos. & Pul. 268. See also Deering Rol. Rep. 354. 3 Bulst. 162. Jenk. 324. v. Lord 11'inchelsea, ib. 270. S. P. pi. 27. (129) See Johnson v. Johnson, 11 Mass. Rep. 359. Taylor v. Savage, 18 Mass. Rep. 98. It seems, that a court of equity will not compel a surety in a bond, to contribute to a co- surety, who has been forced to pay the debt, unless it be made to appear, that due dili- gence" was used, without effect, to obtain reimbursement from the principal, or that h« was insolvent. M' Cor mack" s Admr. v. O'Bannon's Ext. 3 Munf. 434. 49 *402 402 On Promises to Repay Money Paid. [Part II. the only solvent sureties, called upon them to pay their proportion, and brought this action to recover from the defendant such a sum of money, as when ad- ded to what had been already paid by him would make up one-third of the whole sum paid to the obligees, deducting only what had been contributed by the fourth surety not called upon at the time." On behalf of the defendant, the follow- ing objections were taken, viz. that this action could not be maintained at law by one co-surety against another ; that if the action could be maintained for one-sixth of the whole sum engaged for, and which, under the circumstances of the present case, he insisted was all that could be recovered from the defen- dant, yet, that the insolvency of the two principals, and of the three other co- sureties, should have been proved in order to entitle the plaintiff to the present verdict. The Court observed, " that it might now, perhaps, be found too late to hold that this action could not be maintained at law, though neither the insolven- cy of the principals, or of any of the co-sureties were proved ; but that at all events the plaintiff could not be entitled to recover at law more than one-sixth of the whole sum paid. And Lord Eldon Ch J. said, " that he had conversed with Lord Kenyon upon the subject, who was also of opinion, that no more than an aliquot part of the whole, regard being had to the number of co-sure- ties, could be recovered at law by the defendant ; though if the insolvency of all the other parties were made out, a larger proportion might be recovered in a court of equity." So, where three persons are jointly liable to pay a debt, and two of them pay it, they cannot maintain a joint action against the third to recover his ali- quot proportion ; but each must bring a separate action for his aliquot share of the money so paid. Thus, in the case of Brand and Herbert v. Boulcott,(d) which was also an action of indebitatus assumpsit for money paid. The facts were these : " The plaintiffs sued out a commission of bankrupt against T. L. as joint petitioning creditors, and were chosen assignees under that com- mission, together with the defendant ; and both the plaintiffs and the defendant acted as assignees under the commission. Each of the plaintiffs paid to the solicitor, under the commission, the sum of 104Z. in discharge of his bill for expences incurred on account of the bankruptcy ; and the present action was brought to recover the defendant's proportion of the 208/. paid by the plaintiffs." The Court determined that the plaintiffs could not maintain a joint action, but that separate actions ought to have been brought by each of them for contribu- tion against the defendant. However, where A. was engaged as a partner in a particular transaction with B. C. and D. who were before partners, after which B. C. *and D. be- came bankrupts ; and, after their bankruptcy. A. paid a debt due from himself and them to a joint creditor : it was decided, that these three partners consti- (d) 3 Boa. & Pul. 235. See aiso Graham hy and another v. Steel, 5 Esp. Rep. and othera v. Robertson, 2 T. R. 282. and KeU S. P. •103 Chap. 6.] On Promises to Repay Money Paid. 403 tuted but one debtor to A., and that he might recover from B. the proportion of B. C. and D. towards the joint debt, B. not having pleaded in abatement, (c) If A. at the instance of B. become a co-surety with him for the debt of C. ; and B. is forced to pay the whole debt, he cannot recover a moiety thereof from A. This point was settled in the case of Turner v. Davies, (f) which was an action of indebitatus assumpsit for money paid, under the following cir- cumstances: There was an execution in the house of one Evans, at the suit of Brough, for 23/. ; but to induce Brough to withdraw it, and to secure the debt, Turner, the plaintiff, and Davies, the defendant, joined in a warrant of attorney to Brough; but Davies hnd joined inconsequence of having been applied to by Turner and Brough, who required an additional security. Turner, the plain- tiff, took a bill of sale from Evans, for his own security, dated 20th January, 1796; and an indorsement was made on it, declaring the purpose for which it was given. Another execution having issued against Evans, the goods were tak- en in execution, and Turner, the plaintiff, had paid the whole of Brough' 's de- mand, and afterwards brought this action against the defendant for contribution of the moiety. But the Court determined that such action would not lie. And Lord Kenyon Ch. J. said, " I have no doubt that where two parties become joint sureties for a third person, if one is called upon and forced to pay the whole of the money, he has a right to call on his co-security for contribution : but where one has been induced so to become surety at the instance of the oth- er, though he thereby renders himself liable to the person to whom the security is given, there is no pretence for saying that he shall be liable to be called upon by the person at whose request he entered into the security. This is the case here : Davies, the defendant, became security, at the instance of Turner, the plaintiff, to Brough ; and there is still less pretext for Turner to call on the defendants in this action, as he took the precaution to secure himself by bill of sale." Where one joint contractor pays money for another under an equitable claim, he may recover it from the other as money paid to his use. And a covenant not to sue one of two joint debtors does not operate as a release to the other. (g) But where A. recovers damages in an action of tort against two defendants, and levy the whole damages on one, that one cannot recover a moiety thereof against his co-defendant for his contribution. Thus, in the case of Merry- weather v. Nixon,(h) where it appeared, that one Starkey brought an action on the case against the *present plaintiff and defendant, for an injury done by them to his reversionary estate in a mill, in which was included a count in trover for the machinery belonging to the mill ; and having recovered 840/. he levied the whole on the present plaintiff, who thereupon brought this action against the defendant for a contribution of a moiety, as for so much money paid to his use. But the Court of King's Bench determined, that no contribu- (t\ Vide Wright v. Hunter, 1 East Ren. (g) liulton v. Eyre, 6 Taunt. 239. 20. (A) 8 Term Rep. 186. ('/) 2 Esp. Rep. 478. '404 404 On Promises to Repay Money Paid* [Part II. tion could by law be claimed as between joint wrong-doers ; and consequently this action, upon an implied assumpsit, could not be maintained on the mere ground that the plaintiff had alone paid the money which had been recovered against him and the other defendant in that action. And Lord Kenyan Ch. J. said, " That he never heard of such an action having been brought, where the former recovery was for a tort ; that the distinction was clear between this case and that of a joint judgment against several defendants, in an action of assumpsit ; and that this decision would not affect cases of indemnity, where one man employed another to do acts, not unlawful in themselves, for the purpose of asserting a right." And the same point has also been determined where an action of trespass vi et armis was brought against several co-tiespas- sers.(z)(130) So, where two persons agree to buy stock and tickets for time, on specula- tion, upon their joint account, and being losers, one of them (without the know- ledge of the other) pays all the money, he cannot maintain an action for con- tribution against his companion, the transaction being illegal. (k) But it has been since determined, that if two persons jointly engage in a stock-jobbing transaction, and incur losses, and employ a broker to pay the differences, and one of them repay the broker, with the privity and consent of the other, the whole sum, he may recover a moiety from that other, in an action for money paid to his use, notwithstanding the transaction be illegal, and contrary to the statute 7 Geo. 2. c. 8.(Z) If a party dine at a tavern, and one of them pays the reckoning for himself and the rest of the company, he may recover from the others their aliquot pro- portions, by separate actions against each, (m) (131) 7. OF CONTRIBUTION BY THE OWNERS OF ADJOINING PROPERTY TO- WARDS THE EXPENSES OF BUILDING PARTY-WALLS. By the stat. 14 Geo. 3 c. 78. s. 41. it is enacted, " That the person or per- (t) Farebrother v. Jlnsley, 1 Campb. 343. Rep. 61., and Cannan v. Bryce, 3 Bam. & (k) Thxoailc v. Warner, Lond. Sitt. Trin. Aid. 179. contra. Note also, in this last case 1773. Esp. N. P. 88. all former cases on the subject are cited. (<) Petrie and another v. Hannay, 3 Term (m) Per Lord Ktnyon, 8 Term Rep. 614. 1 Rep. 418. But see Steers v. Lasldy, 6 Term Rol. Abr. 24 pi. 31. (130) See Peck v. Ellis, 2 J. Ch. R. 131. (131) Where A., against whom there is a judgment, being seised of land, sold part of it, and died seised of the residue, his hsirs are bound to satisfy the judgment as far as they have assets ; and they are not entitled to contribution from the purchaser of part of the land of their ancestor ; for they stand in his place ; and besides, there is no equality of right be- tween them and the purchaser, in respect to the judgment. Clowes v. Dickenson, 5 J. Ch. R. 235 ; But if there be several heirs, and the judgment creditor levy the debt from a part of the inheritance allotted to one of them, such heir is entitled to contribution from his co- heirs. Id. So, where there are two or more grantees under a mortgagor, whether in seve- ralty or in common, if either of them pay the whole money due on the mortgage, the other shall be holden to a reasonable contribution. Taylor v. Porter, 7 Mass. Rep. 355. But if services be rendered for the benefit of several persons, and one of them only be liable to pay for such services, he can sustain no action against the others for a contribution, until he has paid the money, or made satisfaction. Webster v. Gage, 2 Mass. Rep. 503. *105 Chap. 0.] On Promises to Repay Money Paid* 405 sons at whose expence any party-wall, or party-arch shall be built, *agreeably to the directions of this act, shall be reimbursed by the owner, or owners, who shall be entitled to the improved rent of the adjoining building, or ground, and who shall, at any time, make use of such party-wall, or party-arch, a part of the expence of building the same, in the proportion after mentioned ; that is to say, if the adjoining building then erected, or afterwards to be erected, be of the same rate or class of buildings as, or superior to, the building belonging to the person or persons at whose expence the said party-wall was built, then the owner or occupier of such adjoining building, or ground, shall pay one moiety of the expence of building so much of the said party-wall, or party- arch, as such owner or occupier shall make use of ; and if the adjoining build- ing then erected, or afterwards to be erected, be of an inferior rate or class of building, then the owner or occupier of such adjoining building, or ground, shall pay a sum of money, equal to one moiety of the expence of building a party-wall, or party-arch, of the thickness by this act required for the rate or class of building whereof such adjoining building shall be, and of the height and breadth of so much of the said party-wall, or party-arch, as such owner or occupier shall make use of : and in the meantime, and until such moiety or other proportional part of the expence of building such party-wall, or party- arch, be so paid, the sole property of such whole party-wall, or party-arch, and of the whole ground whereon the said party-wall shall stand, shall be vested entirely in the person, or persons, at whose expence the same shall be built: and such moiety, or other proportional part of the expence of building such party-wall, or party-arch, shall be so paid to the person or persons at whose expence the same shall be built, or in whom the property thereof shall be vest- ed, at the times hereinafter mentioned ; that is to say, in respect of every such party-wall to any house, or building, whereunto, at the time of building the same, no other house or building was adjoining, so soon as such party-wall shall be first cut into or made use of; and in respect of every such party-wall, or party-arch, as shall be built against, or adjoining to any other house or build- ing, so soon as such party-wall or party-arch shall be completely built and finished ; and in respect of such last mentioned party-wall, or party-arch, the owner or occupier of such adjoining house, or building, shall, together with such proportional part of the expence of building such party-wall, or party- arch, also pay a like proportional part of all other expences which shall be ne- cessary to the pulling down the old party-wall, or timber or wood partition, and the whole of all the reasonable expences of shoring up such adjoining house, or building, and of removing any goods, furniture, or other things, and of pull- ing down any wainscot or partition, and also all such costs, if any, as may have been awarded by the said court of mayor and aldermen, or court of sessions as aforesaid, but not any part of the expence of pulling down and clearing 3way any *such old party-wall, or party-arch, or old partition, if any such there was. And it is hereby directed, that the expence of building such party-wall, or par- ty-arch, shall be estimated after the rate of 71. 15s. by the rod, for the new brick work, deducting thereout after the rate of 1/. 8a-. by the rod for the ma- •405 M06 405 On Promises to Repay Money Paid- [Part II. terials, (if any) of so much of the old wall, or arch, as did belong to such, adjoining building, or ground ; and also after the rate of 2d. by the cubical foot for the materials, (if any) of so much of the old timber partition as did be- long to such adjoining building, or ground ; and that, within ten days after such party-wall, or party-arch shall be so built, or so soon after as conveniently may be, such first builder, or builders, shall leave, at such adjoining house or building, a true account, in writing, of the number of rods in such party-wall, or party- arch, for which the owner or owners of such adjoining building, or ground, shall be liable to pay, and of the deduction which such owner or owners shall be entitled to make thereout, on account of such materials, and also an account of such other expences and costs as aforesaid ; whereupon it shall be lawful for the tenant or occupier of such adjoining building, or ground, to pay one moiety, or such proportional part as aforesaid, to such first builder, or builders, for the same, and also for shoring and supporting such adjoining building as aforesaid, and for all such other expences as are hereinbefore directed to be paid by the owner or owners of such adjoining building, or ground, and to deduct the same out of the rent which shall become due from him, or her, to such owner or own- ers, under whom he or she holds the same respectively, until he or she shall be reimbursed the same : and in case the same be not paid within twenty-one days next after demand thereof, then the same shall and may be recovered, too-ether with full costs of suit, of and from such owner or owners, by action of debt, or on the case, in any of his Majesty's courts of record, at Westmin- ster, wherein no essoin, protection, or wager of law, or more than one imparl- ance shall be allowed. And if the plaintiff, or plaintiffs, in any such action shall, three calendar months, at the least, before the commencement thereof, give notice, in writing, to the person or persons against whom such action is intended, to be brought, of his, her, or their intention to bring the same, or leave the same at his, her, or their last or usual place of abode, and shall, in such notice, specify the sum for which it is to be brought, and also annex to such notice a bill of the just and true particulars of the expences and charges with which the intended defendant or defendants, is or are to be charged, then such plaintiff or plaintiff's if he, she, or they recover the full sum specified in such notice, shall also recover and be entitled to double costs of suit, and shall have and be entitled to the like remedies for recovery thereof as are usually given for costs in other cases of costs at law." And by section 42. it is further enacted, by the authority aforesaid, *" that every party-wall hereafter to be built, and every addition which shall be made thereto, or to any party -wall which is already built or begun, shall be built agreeable to the directions herein contained, concerning the party-wall of the highest rate or class of building to which such party-wall shall adjoin, when such additions are completed ; and that no party- wall now built, or hereafter to be built, shall, after the same, and the buildings adjoining theieto, is and are completed, be raised, unless the same, when raised, be of the full thickness such party-wall is of in the story next under the roof of the highest adjoining building ; nor shall any party-wall hereafter be raised, unless the same can be *407 Chap. 6.] On Promises to Repay Money Paid- 407 done with safety to such wall, and the several buildings adjoining thereto : but all such party-walls as will, when raised, be of the materials, heights, and thick- nesses hereinbefore required, or as can be safely raised, may, together with the shaft or shafts of the chimneys belonging thereto, be raised by and at the ex- pence of the proprietor or occupier of any building to which the same belong, to any height, he, she, or they shall think proper. But if the proprietor or oc- cupier of any building adjoining to the said party-wall and chimney shafts shall make use of any part of such party-wall and chimney-shafts, other than the use he makes of the chimney flues therein, which shall be so raised, then such person so making use thereof, for the part so used, shall be chargeable with a proportionable share of the expence of raising such party-wall and chimney shafts ; and, in computing such charge, the same shall be rated in manner hereinbefore mentioned, and the proportion such person shall be liable to pay shall be recovered in such manner as is hereinbefore particularly declared con- cerning the first building of a party- wall." Upon this act of parliament the owner of the improved rent is alone liable to contribute a moiety of the expence of building a party-wall : and he may be sued by action of indebitatus assumpsit for money paid, if the wall is im- mediately used by the owner of the adjoining house ; but where no building adjoins at the time of erecting the party-wall, the declaration should not be in the common form, namely for money paid generally, but it should state all the circumstances specially, (m) As doubts are frequently raised upon the ques- tion, who is to be deemed the owner of the improved rent, and liable to contri- bute 1 it may here be useful to present the reader with the different determina- tions to be met with in the reports upon this point. The first of them is Southall v. Lcadbetter,(n) which was an action of replevin; and the defendant avowed as bailiff of J. Winter, for 30/., for a quarter's rent of a house in S/iugg Lane. At the trial, before Lord Kenyon, Ch. J. the jury found a verdict for the plaintiff, subject to the opinion of the Court of *King's Bench, on the fol- lowing case, in order to try the single question whether Lygow, the assignee of the lease of the house, for which the rent was claimed to be due, or Winter, was to pay the moiety of the expence of rebuilding a party-wall between that house and an adjoining one. " Winte r was the landlord of the premises in question, and was seised in fee thereof. Lygow was occupier of part of the premises* and was assignee of a lease thereof granted by Winter to one Foulslon, deceas- ed, for twenty-one years, dated 3d July, 1786 ; by which lease, (reciting an agreement, in writing, dated the 14th October, 1784, between Winter and Foulston, that the latter should repair the messuage and premises therein men- tioned, according to the particulars ascertained by a surveyor, and that he would, on or before the 24th June, 1785, at his own cost and charge, put the said messuages, &c. into good and sufficient repair : on finishing which, Winter (m) Vide S Term Rep. 130. 8 Term Rep. (n) 3 Term. Rep. 458. 602. '408 408 On Promises to Repay Money Paid. [Part II. would make a lease thereof to Foulston, to commence from Midsummer -day then last, for twenty-one years, under the rent of a pepper corn for the first half year of the term, and under the clear yearly rent of 120/. for the remainder of the term ; and also reciting that Foulston, in pursuance of that agreement, had repaired, &c.) Winter demised the premises to Foulston, his executors, admin- istrators, and assigns, according to that agreement. The lease also contained a covenant by Foulston to pay, " from time to time, and at all times during the term, the land-tax and all other taxes, rates, assessments, and impositions whatever, already laid, assessed, or imposed upon the said premises, or on any part thereof, or upon the said John Winter, his heirs and assigns, in re- spect thereof, by authority of Parliament, or otherwise howsoever." The case then stated that Foulston laid out and expended, in the repairs of the premises, 150/. ; and that, though the consideration stated in the assignment to Lygow ap- pears to be only 5s. yet that the sum actually paid as the consideration for it was 160/. The old wall was condemned in the year 1788 ; and the present party- wall was built according to the terms of the act of Parliament. Lygow has paid for a moiety of the party-wall, the bills for which exceed the quarter's rent for which the distress was made : those bills were tendered to Winter before the distress, but he refused to allow them.' The premises in question were, previ- ous to the commencement of the present lease, let by Winter, at the rent 110/. per annum, out of which he allowed to the tenant the land-tax." The Court determined, that Winter was the person liable under the act to pay the moiety of the expence of rebuilding the party-wall. And Lord Ken- yon, Ch. J. said, " The improved rent mentioned in this Act of Parliament stands contradistinguished from some other rent ; but here no other rent was reserved but that at the granting of the lease. But it is said that the lessee received from his assignee a sum in gross, as the consideration for the purchase, which is equivalent to an *improved rent. If, indeed, a large sum were paid for the purchase of a lease, though no improved rent were reserved to the original lessee, I think he would be liable to pay this expence within the Act ot Parliament. But that is not the present case : for when Winter grant- ed this lease he reserved the best rent which could be procured for it at the time, since this rent exceeds the rent formerly reserved by 10/. per annum, and the whole of the land-tax ; and the case ought not to be varied by the circum- stance of the estate's gradually increasing in a small degree. Where the par- ties contract for a lease at rack rent, the landlord is the person who ought to bear the expence of the party-wall. Then it was contended that the full rent was not reserved originally, because it was stipulated that the tenant should lay out a considerable sum of money in improving the estate : but it must also be remembered, that in consideration of that, the lessee was to pay no rent for the first half year ; which might have been considered at the time as commen- surate with the sum to be laid out in the repairs. Neither is the lessee con- cluded by the covenant to pay the taxes, assessments, impositions, &c. for that only extends to the land-tax, and all other taxes ejusdem generis : but this is not a tax." # 409 Chap. 6. J On Promises- to Repay Money Paid. 409 The owner of the improved rent, and not of the ground rent, is the party liable by the Act of Parliament : thus, in the case of Peck v. Wood,(o) which was an action of assumpsit to recover 42/. for half of the expence of a party- wall, between the plaintiff's and defendant's house, built by the former, under the stat. 14 Geo. III. c. 78. s. 41. On the trial, a special case was reserved for the opinion of the Court of King's Bench, which stated, in substance, as follows : "On the 18th of November, 1788, the defendant entered into an agreement with W. Pateman, for a building lease of a piece of ground adjoining to the plaintiff's house in Princes-street, West?ninstcr, whereon was standing a messuage and other buildings, for sixty-one years, to commence from the 29th of September then last, at the yearly rent of 8/. free from all deductions whatsoever, whether parliamentary or parochial, then or thereafter to be im- posed or assessed, either on the landlord or tenant; and it was agreed that the defendant should immediately proceed to pull down the premises, and erect thereon at least one good substantial brick dwelling-house, with necessary con- venient out-houses and offices, &c. and to lay out and expend in the erection of such new building 300/. at least. Pursuant to this agreement, a lease of the premises was granted and executed, in January, 1789, by Pateman to the defendant. The plaintiff, previous to the defendant's entering into the agree- ment with Pateman for the lease, had pulled down the old wall, which was standing between his (the plaintiff's) house, and the house and premises which the defendant took upon lease as aforesaid. On the 29th September, *1788, *the party-wall was begun to be built; and on the l?th day of January fol- lowing it was finished. In June, 1790, the defendant let the house held of Pateman to J. Beach, at the yearly rent of 31/. \Qs. the land-tax and sewer's tax deducted. It was absolutely necessary that the old wall should be pulled down. The defendant enjoys the improved rent ; and Pateman is still the ground landlord. The plaintiff did not give three months' notice in writing to Pateman, the then owner and ground landlord of the house and premises, which were afterwards leased to the defendant, prior to his pulling down the party-wall ; but he applied to Pateman for that purpose, who agreed that it should be pulled down, if Hawkins, the then tenant, would consent ; and Haw- kins did consent. The new party-wall is built agreeably to the directions of the statute 14 Geo. III. c. 78. The defendant has the benefit of the party- wall, and that in a greater degree than the plaintiff; his house extending far- ther back than the plaintiff's. The Court were of opinion that the defendant, being owner of the improved rent, was liable to pay the expences of the party- wall ; and that the defendant was not entitled to the three months' notice re- quired by section 38. of the act : and Bailer, J. said, " The three months re- quired by section 38. is only necessary in those instances where the party is either ignorant of, or adverse to, the building of the wall : but this was begun with Pateman 's consent, and before its completion the possession of the house (o) 5 Term Rep. 130. 50 *4io 410 On Promises to Repay Money Paid. [Part II. was changed. The defendant, therefore, was not entitled to notice, he stand- ing in Paleman's place. And with regard to the principal question, it would be unjust that Patcman, who receives a ground rent of 8/. only, and who de- rives no advantage from the party-wall, should pay the expence of it ; and that the defendant, who does enjoy it, and who is in the receipt of an improved rent of 31/. should not contribute any part of this expence." But the accounts must be delivered and demand made within 21 days, before any action is brought as directed by the 41st section of the act. (p) So, not- withstanding the lessee or assignee has improved the house demised, the lessor of the premises at rack rent is the person to be deemed the owner of the im- proved rent, and liable to contribute, and not the lessee, unless the latter under- lets the house at an improved rent, (q) But where the lessee covenanted to pay a reasonable share and proportion of the expences for repairing party-walls, &c, it has been determined, that he, and not the lessor is liable. Thus, in the case of Barrett v. the Duke of Bedford(r) which was also an action of assumpsit *to recover 1951. paid by the plaintiff for the proportionate part of the expences of a party-wall, built by the proprietor of the adjoining house, under the stat. 14 Geo. III. c. 78. s. 41. A verdict was taken for the plaintiff for that sum, subject to the opinion of the Court of King's Bench on the following case : In the year 1786 the plaintiff, by assignment, became possessed of a lease, granted in the year 1762, by the defendant's grandfather, of certain premises on the north side of the Great Pi~ azza, Covent Garden, for a term of thirty years, of which about six years were then unexpired, under a yearly rent of 60/. On the 6th of October, 1788, a new lease was granted by the defendant to the plaintiff, for a term of thirty- one years, to commence at the expiration of the said lease, or Lady-day, 1792, at 60/. per annum. The last mentioned lease is stated to be granted in consid- eration of the great expence and charges which the plaintiff had been at in re- pairing the premises, and also in consideration of the following, among other covenants : " And likewise that the said Michael Barrett, his executors, admin- istrators, and assigns, shall and will, from time to time, and at all times during the continuance of the said term hereby granted, bear, pay, and discharge all taxes, rates, duties, assessments, and impositions of what nature or kind so- ever, and whether parliamentary or parochial, imposed or charged, or which, at any time during the term hereby granted, shall be imposed or charged on the hereby demised premises, or any part thereof, or upon the landlord for the time being in respect thereof, or of the said rent reserved for the same ; it be- ing the true istent and meaning of these presents, and of the parties hereto, that the said Duke of Bedford, his heirs and assigns, shall have and receive the said yearly rent or sum of 60/. hereby reserved in net money, without any dedue- 0>) Vide Philip v. Donati, 2 Taunt. 62. and see Sangster v. Birkhead, 1 Bos. & Pul. (q) Beardmore v. Fox, 8 Term Rep. 214. 303. Lambev. Henums, 2 Barn, and Aid. 467., (r) S Term Rep. 602. *411 Chap. 6.] On Promises to Repay Money Paid. 411 tion, defalcation, or allowance out of the same, on any account whatsoever ; and that he, the said Michael Barrctt,his executors, administrators, and assigns/shall, and will, during the term hereby granted, as often as need shall require, bear, pay, and allow a reasonable share and proportion of, or for and towards supporting, re- pairing, amending, and cleansing all party-walls, party -gutters, common sewers, public sewers, and drains belonging, or which, at any time during the said term hereby granted shall belong to the said hereby demised premises, or any part there- of." These covenants were verbatim as in the old lease, with the exception of such parts as relate to the payment of the land-tax by the tenant, which by the for- mer lease was paid by the landlord, and the amount of which was 22/. 10s. per annum. The demised premises consist of two shops on the ground floor, and a range of apartments above stairs. Before the pulling down and building of the party-wall hereinafter mentioned, one of the shops was under-let by the plaintiff by lease for seven, fourteen, or twenty-one years, at the yearly rent of 60/., the plaintiff covenanting *to pay all the taxes, and for water. And the other of the shops was under-let by the plaintiff by lease to one /. Alditch for twenty-one years, at the rent of 26/. 5s., the plaintiff covenanting to pay all the taxes. The residue of the demised apartments was kept by the plaintiff for several years in his own hands, but at the time when the party- wall was built, he had let them furnished to one Searle for twenty-one years, at the yearly rent of 210/., the plaintiff covenanting to pay all the taxes. At the time the party-wall was built, the taxes, paid by the plaintiff, amounted to 72/. 3*. a year. The court determined that the tenant, (not the landlord,) was bound to pay the moiety of the expence of the party-wall. And Lord Kenyon, Ch. J. said, " If there were no covenants in the lease applicable to this sub- ject, there would be great weight in the plaintiff's argument: but it is not neces- sary to consider which of these parties would have been liable under the act of parliament ; modus et conventio vincunt legem. I think, it was the inten- tion of the parties to this lease, that the expence of the party-wall should be borne by the tenant. Had there been nothing more in the lease than the ten- ant's covenant to pay ' taxes, rates, duties, assessments and impositions, whe- ther parliamentary or parochial,' I should have entertained the same opinion in this case that I expressed in one of the cases cited, that those words did not extend to building a party-wall : but the latter part of that covenant by which the tenant covenanted that the landlord should receive the • yearly sum of 60/. in net money, without any deduction or allowance out of the same,' and the covenant respecting the ' repairing of all party-walls,' &c. satisfy me that the parties intended that this expence should fall on the tenant." So, in the case of Stewart v. Smithes) which was an action brought to re- cover 28/. the moiety of the expence of erecting a party wall between the plaintiff Vhouse and a house occupied by the defendant. And it appeared that the old party-wall being out of repair, it became necessary to rebuild it, (s) Holt N. P. CJfts. 321. 2 Mar. 435. '/Taunt, 158. S.C, *412 412 On Promises to Repay Money Paid. [Part II. that the plaintiff applied to the defendant, who enquired what the expence would be, and upon being told his proportion, said, " Very well ; I shall ex- pect to pay what is right and fair." About six weeks after the wall was rebuilt, the plaintiff called on the defendant for 10/. in part payment, the defendant said, it was not convenient for him to pay. It also appeared that the defendant paid rent to two persons, viz. 32/. to one, and 18/. to another: the wall was rebuilt in September, 1815. Since the action was brought, the defendant had offered his lease for sale, for 300/. It was admitted that no notice of accounts, as directed by the act (14 Geo. 3. c. 78. s. 41.) had been delivered to the defendant, or left at his house. For the defendant two objections were taken, first, that the 41st section of the building act, throws the burthen of rebuilding *and repairing party walls upon the owners of the improved rent. There was no evidence that defendant was such owner. The fact of his hav- ing offered his lease for sale long after the wall was rebuilt, did not prove his original liability. Had he even sold his lease for a premium, it would not make him liable as owner of an improved rent, for it was in evidence that he paid rent to two distinct persons, one or other of which rents, in the absence of evidence, might be presumed to be an improved rent. 2d. His promise to pay must be construed with reference to his legal liability. If the obligation to repair, be in another person, such promise not being in writing was void by the statute of frauds. But the effect of the word is not a general promise, nor does it dispense with the provisions of the building act. " I shall pay what is right and fair;" this is no dispensation of the means prescribed by the statute for ascertaining what is " right and fair." But Gibbs Ch. J. said, " the act requires certain forms which must be complied with against an adverse oc- cupier. But neither the act of parliament, nor the forms are very clear and precise. I agree that the owner of the improved rent is alone liable. But there are two questions in this case: 1st, Have not the parties come to an un- derstanding to dispense with the formalities of the building act, which they may do ; 2d, Has not the defendant made himself liable by his promise ? He de- sired to know what the expence would be, and agreed to pay his moiety. He assumes the responsibility upon himself, and as occupier there is sufficient con- sideration for him to make such agreement, supposing him not to be the owner of the improved rent, though there is a strong presumption that he is such own- er. The construction of the evidence will be for the jury, but I think the plaintiff entitled to recover." And the jury accordingly found a verdict for the plaintiff. Upon the 38th section of the building act, respecting a contribution towards shoring up a house, &c. it was determined, in the case of Robinson v. Lewis, (t) that where notce of pulling down and re-building a party-wall, was given under the building act 14 Geo. 3. c. 78. and the tenant of the adjoining house, who was under covenant to repair, finding it necessary in consequence, to shore up his house, and to pull down and replace the wainscot and partitions of it, instead (t) 2 Esn. Rep. 227. *413 Chap. 6.] On Promises to Repay Money Paid. 413 of leaving such expences to be incurred, and paid by the owner of the house, giving notice, in the manner prescribed by the act, and afterwards paying the same to him upon demand, employing workmen of his own to do those necessary works, and paid them for the same, that he could not recover over against his landlord such expences incurred by his own orders and paid for by him in the first instance : for all the powers and authorities given by the act in respect to any works to be done, are *given to the owner of the house intended to be pulled down and rebuilt, and the landlord of the adjoining house being only liable by the act to reimburse his tenant, money paid by him to the other owner for such works as are authorised to be done by such other owner in respect of such adjoining house. And Lord Ellenborou) The 11th section also contains an exception as to annual payments out of the fees to any person for- merly holding the office, provided such reservation, and the circumstances un- der which it was permitted, is stated in the instrument of appointment of the person succeeding to the office. Upon the statute of Edward it has been determined, that an agreement to appoint a deputy to a public office upon the request of another, and to em- (139) See Lewis v. Knox, 2 Bibb. 435. 54 # 443 444 Of Contracts for the Sale of Offices, fyc. [Part II. power the latter to receive the fees of office, &c. to his own use, is void. Thus in the case of Garforth v. Fearon,{a) which was an *action of assumpsit for money had and received, brought by the direction of the Master of the Rolls, in consequence of a bill filed in equity, by the plaintiff and his son, praying that the defendant might be declared a trustee of the office of customer of Car- lisle, for the plaintiff, for the benefit of the son. On the trial of the cause at the sittings in Trinity Term, 1787, before Lord Loughborough Ch. J. it ap- peared in evidence that application was made to the Lords of the Treasury by the friends of the plaintiff, to procure for the defendant the office of customer of the port of Carlisle. On the 25th of February 1773, the defendant signed the following declaration, " I do hereby declare, that my own name was made use of, in trust for Mr. John Garforth, on the application made to the Lords of the Treasury, for the office or place, lately held by Mr. Grape, deceased, in the county of Cumberland ; and I do hereby promise, in case any appointment has been or is made thereof, that I will, upon request, appoint such deputy or deputies as he shall nominate, and also empower the said Mr. Garforth to re- ceive the salary, stipend, wages, and fees of the said office to his own use." On the 27th of February 1773, the defendant was appointed by patent to the office, and afterwards, on the nomination of the plaintiff, constituted deputies for Carlisle, Whitehaven, and Workington ; but having received the profits, did not account for them to the plaintiff, in consequence of which the bill was filed. A verdict was found for the plaintiff, with leave to move the court to en- ter a nonsuit. A motion to this effect was accordingly made, and after argu- ment at the bar, the court dete rmined that the agreement was void. And Lord Loughborough Ch. J. said, " on full consideration of all the arguments used in this cause, I am of opinion that the transaction which is the foundation of the action is illegal, and the agreement void. This transaction concerns a public office, deemed by law to be a place of public trust, prohibited to be sold ; and even the deputation of which, where such deputation may be made, can- not be an object of sale. The transaction is, that Fearon being appointed by the recommendation of Garforth, shall not interfere in the office, but shall ap- point such deputies as Garforth shall nominate, and pay 40 him the profits. The effect of this is, that to all profitable purposes, and as to all the exercise of the office, except as to signing a receipt for the salary, Garforth is the real officer, but is not accountable for the due execution of it ; he may enjoy it with- out being subject to the restraints imposed by law on such officers, for he does not appear as such officer ; he may vote at eiections, he may exercise incon- sistent trades, he may act as a magistrate, in affairs concerning the revenue, he may sit in parliament, and will be safe if he remains undiscovered. If extortion be committed in the office by those appointed, the profits of that extortion redound to him, but he escapes a prosecution ; for not being the active officer, he does not appear registered upon the records *of the Exchequer, and is not liable (a) 1 H. Bl. 327. Vide Godolphin v. Tudor, 1 Bro. P. C. 135. Palmer v. Bete, 2 Brod. & Bing. 673. S. P. 444 *445 Chap. 11.] Of Contracts for the Sale of Offices, fyc. 445 to the disabilities imposed by the statute on officers guilty of extortion, who are incapacitated to hold any office relating to the revenue. Whether a trust can be created in such an office, is for the consideration of the court in which the suit was originally brought : the only question in this court is, whether the agree- ment springing out of such a transaction can support an action 1 The written agreement of the 25th of February 1773, was for two purposes : one to appoint such deputies as the plaintiff should name ; the other to pay over to him all the profits of the office. Though this case has been argued very fully and very ingeniously by the counsel on both sides, I do not recollect any argument used in support of the first promise, namely, to appoint at the nomination of another, deputies, for whom the person appointing is in point of law answerable, and whose places he is not allowed to sell or bargain for. The argument and doc- trine laid down in the case of Smith v. Cohshiil, 2 And. 55. which is similar to this, are that if one part of the agreement were bad, no action could be main- tained on any other part which might be good. But it is not necessary to rest on this point, because I am of opinion that the agreement is bad in both parts. If it be without any consideration in a court of law, no action will lie upon it ; it is but nudum pactum. What then is the consideration upon which this agreement proceeds 1 It is that Fearon is appointed on the application of Gar- forth in trust for him ; this is the consideration. Now what is this but in plain terms this proposition ; viz. that the public is abused, and the king deceiv- ed in the application 1 I should therefore not find much difficulty to conclude, if there were nothing more in the case, that the common law would not support an assumpsit on such an agreement. But I think it is clearly void by positive law respecting this office. The appointment of any customer by any means contrary to the stat. 12 Ric. 2. cap. 2. is a misdemeanor. That statute, though very ancient, is certainly not obsolete ; it is the statute under which they are sworn in the Exchequer. It not only prohibits the appointment, but goes on to say that ' none that pursueth by him or by others, privily or openly, to be in any manner of office shall be put in the same office, or in any other,' and the 5 & 6 Edw. 6. c. 16. makes void all promises, bonds, and assurances, as well on the part of the bargainer, as the bargainee. It is said, that this was no sale of the office, that no money has passed on the part of Fearon to obtain it. But the statute does not stop there. It is neither confined in its expressions nor its intent. In the case where a person obtaining an office gives money, the words of the act are extremely general, and according to their obvious construction without any enlargement, necessarily require that all bargains for money concern- ing those offices which are mentioned in the statute, are and shall be prohibited. Now is it not clear, that the plaintiff has bargained with the defendant ? Would the *defendant have had the office without that bargain ? The promise which is the ground of this action is, that the plaintiff shall have all the profits. By the words of the statute, any profit, however small, would have affected the trans- action ; but here there is a bargain for the whole. Courts of law have very properly considered this as a remedial statute, and have construed it liberally where the validity of such a transaction has been brought before them. The *44G 446 Of Contracts for the Sale of Offices, fyc. [Part II. case of Sir Arthur lngram{b) has been cited, and there it is clear that the transaction was not immoral ; it was no otherwise wrong than as it was pro- hibited by a positive statute. It was a bargain between Sir Edward Vernon and Sir Arthur Ingram for a surrender of the office of cofferer of the house- hold ; on the surrender of Vernon, Ingram was appointed, and a bond given to account for the profits. This was hulden to be within the statute, because he had charge of the King's money to pay the household. In that case the king was not deceived. The transaction was public and notorious, and the crown was disposed to have re-appointed the officer with a non obstante; but the question being referred to the Chancellor and twelve Judges, whether the king could by a non obstante give the right of receiving the appointment to In- gram : their opinion was, that the case was within the statute, and therefore that Ingram was disabled from taking the office, and could not by a non ob- stante be made capable of holding it. In the case of Godolphin v. Tudor • 6 Mod. 234. which is also in 2 Salk. 251. which was mentioned in the argument, the transaction was between the principal and the deputy, and the agreement was, that the deputy executing the office should pay to the principal out of the profits a certain sum. The court there held, where the agreement was to pay out of the profits, a certain proportion of the profits, it was not within the statute ; and the reason given is very plain, and carries its own authority with it, namely, that the principal is en- titled to all the perquisites and fees of the office, and the deputy to a recom- pence, as it were on a quantum meruit for the labour he has in the execution of it. All the effect, therefore, of such an agreement is, to ascertain the share which the deputy should have for the execution of the office. But it is re- markable with what strictness the courts have holden that proposition, and how careful they have been to guard against any transaction that might give any colour to the principal's receiving a gross sum out of the profits of an office executed by a deputy. For in this case, as it is reported in 6 Mod., the agree- ment was that Tudor should pay Godolphin 200Z. a year, and it appeared upon record that the profits of the office amounted to 329/. 105. every year in which it had been executed by Tudor, but as the stipulation was to pay 200/. *a year, absolutely without any reference to the profits of the office, the court thought themselves bound to give judgment for the de- fendant. Now that was a transaction perfectly fair ; the mistake in stating the manner of the agreement was an innocent one, but the court would not per- mit the plaintiff to recover on an agreement where it was not stated on the agreement itself that the payment should be only of a portion of the profits, not an absolute one of the whole. Courts of Equity in setting aside securities supposed to be valid at law, have gone by the same rule, and have been just as careful not to permit by any construction, any breaches to be made in the provisions of the statute. The case of Lockner v. Strode, 2 Chan. Cas. 48. was quoted as a determination, where the court of Chancery K 4i7 (/>) Co. Lit. 231. a. Chap. 11.] Of Contracts for the Sale of Offices, fyc. 447 held a looser rule with respect to giving a bond for the payment of a certain sum to the principal appointing a deputy. But that case is, as most of the others are in the same book, grossly misreported : no such determination was made, and both the state of the case and the decision are perfectly mistaken. I have a copy of it from Lord Nottingham's Notes, from which it appears that the defendant, being sheriff, made John Lockner his under sheriff, and the plaintiff who was the brother of John Lockner, gave a bond as a tem- porary security till the common security was given. John gave a bond in the usual form from an under sheriff to his principal for performance of the covenants in the indenture ; but the first bond was not given up. Strode* after he was out of office arrested the plaintiff on it, who was obliged to give bail to Sir Francis Rolle, the succeeding sheriff in 600/. : and to be relieved was the object of the bill. The defendant pleaded a special agreement, that the bond was to secure him 400/. by quarterly payments for the under sheriff's place. This the plaintiff denied, and also insisted that such an agreement was illegal and contrary to the statute 23 Hen. 6. c. 9. The Chancellor being under doubts, a trial was directed, and the point reserved. So that no opinion was given by him on the validity of the transaction. The date of that case is also mistaken ; it is stated in the report to have been February 9, 1680, but it was in fact in Hilary Term, 28 Car. 2. But in a subsequent case, Lord Nottingham very plainly intimated what would have been his opinion, if the agreement had been found good in law. That was the case of Juxton v. Morris, which is in the same book, and also misreported. By Lord Nottingham's Notes it appears that a bishop's registrar made a deputation of his office, rendering thereout 90/. per annum ; the plaintiff exhibited a bill for an account, and the defendant pleaded that it was within the statute of 5 & 6 Ed. 6. and that there ought to be no account. It was answered, that this was only a reservation of part of the profits, and the principal being entitled to the whole, it was not illegal ; which (says Lord Nottingham,) ' seemed specious.' But upon looking into the bill it charged an express *covenant to pay 90/. a year, without reference to the profits of the office. The plea was therefore allowed, and the bill dismissed. These cases connected show, that the opinion of the Court of Chancery at that time in considering how far these securities were liable to be avoided as contrary to the provisions of the statute was, that between principal and deputy there might be a reservation out of the profits, (though Lord Nottingham did not expressly so determine) but if otherwise, the security was clearly bad. In the case of Law v. Law,(c) Lord Talbot set aside a bond supposing it to be good in a court of law, the consideration of which differed very little from the present. On the part of the plaintiff, the case of Bellamy v. Burroio,(d) was relied on as an authority to show that a court of equity will permit a trust to be created of an office clearly within the statute Ed. 6. ; and on reading that case with attention, I admit it is a determi- nation full to the point for which my brother Adair cited it ; and undoubtedly as (c) 3 P. Wins. 392. (rf) Talb. Rep. 97. *448 448 Of Contracts for the Sale of Offices, fyc. [Part II; such a determination, it is of very considerable authority, both in respect to the learning and the known integrity of Lord Talbot. But it is fit to be observed, that in the same case there stands very fully delivered the opinion of Sir Joseph Jehyll to the contrary ; and it rests upon an opposition between two very learned and upright men. Either opinion is probable, when there is such au- thority for its support. I will not enter into the consideration of that case, nor is it necessary to give an opinion here, whether a trust can in any instance be created in such an office. I do not take upon myself to say, without other consideration than the present circumstances can afford, that there is no pos- sible case in which a trust fit to be executed may not be created in offi- ces within the statute of Ed. 6. This is not a case of the execution of a trust, the cognizance of which is peculiar to a court of equity. Perhaps if the Master of the Rolls had fixed on Fcaron the character of a trustee, a court of law might not think itself at liberty to question the authority of the determi- nation. But the whole question for a court of law to determine is simply, whether there appears a good consideration on which an assumpsit can be supported ? And I am of opinion, for the reasons I stated, both on the princi- ples of the common law, and because the transaction is in defiance of the stat- utes which have been made to guard against evils of the same nature, that the consideration of the promise in this case is bad ; that consequently it will not support an assumpsit, and therefore that a verdict must be entered for the defendant." So, a promise to pay money in consideration of the relinquishment of a pub- lic office, in order that another might succeed to it, is void. Thus, in the case of Parsons v. Thompson,(e) which was an action of assumpsit on a special agreement. Verdict for the plaintiff, subject to *the opinion of the Court of Com- mon Pleas on a case which stated in substance, that the plaintiff was, for thir- ty years, master-joiner of the dock-yard of Chatham, and the defendant fore- man of the joiners. That the defendant having a prospect of succeeding to the office of master-joiner (which does not go in regular succession, but is in the appointment of the commissioners of the navy,) applied to the plaintiff to procure himself to be superannuated, which he did, on the following written agreement being entered into by the defendant : — " Agreed on the 29th day of March, 1785, between Mr. John Parsons, master-joiner, of his Majesty's dock- yard at Chatham, and John Thompson, foreman of the joiners of the aforesaid place : In case I should succeed Mr. Parsons to be master-joiner of the said dock-yard, at the commencement of Mr. Parsons' superannuation, then I do agree to allow him his extra pay from the yard-books, exclusive of his super- annuation money, during his natural life, &c." The superannuation money was an annual allowance from government. In 1785 the defendant was ap- pointed to the office. The bare pay of the master-joiner is half a crown per day, all above is extra pay. There are two sorts of extra pay; the tide extra, (when the men work by the tide beyond the common yard hours,) and the (e) 1 H. Bl. 322. *449 Chap. 11.] and ReHnqtiishment of Offices, 449 casual extra, which includes other extraordinary work. It is all denominated extra pay in the yard books without distinction. From 1785 to 1787 the de- fendant paid to the plaintiff the common tide extra, at the rate of 7 \-2d. per tide for six winter months, and at Is. 3d. for double tides, in the summer months, but not the casual extra, which the plaintiff did not demand. In the summer of 1787, the casual extra pay was much increased by the extraordina- ry work performed in fitting out ships on the prospect of an approaching war with the Dutch : this casual extra pay so increased, the plaintiff claimed by virtue of the agreement, but the defendant refused to account for to him ; and in consequence this action was brought. The Court were of opinion, that no action could be maintained on the agreement. Lord Loughborough Ch. J. in delivering the opinion of the Court said, " Every action on promises must rest on a fair and valuable consideration, which it is for the plaintiff to make out. What is the consideration stated here ? That the plaintiff represented himself as unfit for future service, and entitled to a pension for the past. This he did at the request of the defendant, on the promise from him of a certain allowance. Now the representation was either true or false. If true, there was no ground for any bargain with the defendant : the plaintiff did nothing for the defendant ; all he did was for his own ease and advantage. If false, the public is deceived, the pension misapplied, and the service injured. It is not stated that the plaintiff procured the appointment for the defen- dant, (which would clearly have been brocage of office, and bad,) but that he had made *way for the appointment. But from thence no valuable consid- eration can arise. Had the transaction passed with the knowledge of the ad- miralty, judging of the case, and applying at their discretion the allowance they are bound to make, possibly it might have stood fair with the public : I say possibly only ; to be sure the ground of deceit on the public would be done away. But this case rests on a private unauthenticated agreement between the officers themselves, which cannot admit of any consideration sufficient to maintain an action. If it could be proved that it was to be measured by mo- ney, so as to form a valuable consideration, it must be in respect to the time when it was made, when the plaintiff was prevailed upon to retire in favour of the defendant. In this view it certainly would approach very near to brocage ; it would differ very little, in effect, from selling the interest itself, though there would be a difference in the conduct of the party who in one case would be passive, in the other active. But his passive merit, if I may use the expression, would not avail him, where his active exertion would be a demerit. The case cited from 1 Vern. 98. I think may be supported. It was the purchase of a commission in the army, which the Duke of Ormond refused to ratify, on the ground, that the plaintiff had bought without the other party having leave to sell, who had not bought. I should rather suspect, from the usual inaccuracy of the cases in Vernon, that the plaintiff got the commission by succession, and set up this defence against the payment of the bond. There is something very like it in the reasoning of the court, who held there was no relief against the bond. The question of the consideration did not occur to them ; and they seem to have holden that where commissions were generally saleable, there was no- *450 450 Of Contracts for the Sale [Part II. tiling unfair in such a transaction. The next case in 2 Vera. 338. if true, is a decision undoubtedly contrary to what we now decide, and I think contrary to an evident principle of law. On the state of the report the bonds are directly and plainly given for brocage of an office of trust and profit, which is not an object of sale. 1 have therefore no difficulty to say, that I hold that case to be extremely ill-determined, if the note of it be at all correct. The case of Ive v. Ash, Prec. Chanc. 199. I think rightly determined ; there was a purchase of a commission allowed to be sold, the commission was giv- en up, and the purchaser wanted to get rid of the bargain, and be free from the agreement. He objected that a commission in the marines could not be sold ; but it turned out upon examination, that the sale of such commis- sions was permitted, not being looked as within the statute. I therefore hold that case to be well adjudged : for the question whether an office is saleable or not, is a matter of public regulation, and not a question for a court. If by public regulation, right or wrong, certain offices are saleable, the Court cannot set aside the transaction for their sale, the Court is not to *make the regulation. Whether by the general police of the country an in- dividual office is saleable or not, is not a matter of law. But in the present case there is no ground to say, that the defendant's office was sold under any reg- ulation, or that the transaction between the parties was carried on under any authority, or with the consent of their superiors. This agreement resting on private contract and honour, may, perhaps, be fit to be executed by the parties, but can only be enforced by considerations which apply to their feelings, and is not the subject of an action. The law encourages no man to be unfaithful to his promise, but legal obligations are from their nature more circumscribed than moral duties. So, a sale of the command of a ship, employed in the East India Compa- ny's service, by the owner thereof, without the knowledge of the company, is illegal ; and the contract of the sale cannot be the foundation of an action, (f) So, if A., being the clerk, promises B., in consideration that B. will procure him to be rector of a donative church, with cure of souls, to pay 10/. to B., this is no good consideration to maintain an action, for this is simony, and an of- fence against the laws of God and man.(g-) So, a promise to pay a percentage to procure for another a purchaser of his place in the customs is void. Thus, in the case of Stackpole v. Earle,(h) which was an action of assumpsit, where- in the plaintiff declared, that whereas the defendant before and at the time of making the promise afore-mentioned, and afterwards, was surveyor of the bag- gage of the port of London, and was greatly desirous of selling and disposing of his said place, and being so desirous to sell and dispose of the same, on the 1st of January, 1758, at Westminster, in the county of Middlesex, in consid- eration that the plaintiff, at the defendant's request, would use his endeavour to procure, and would procure a proper person to purchase the said place of (/) Blachford v. Preston, 8 Term Rep. 89. 361. SirW. Jones's Rep. 341. {S) Rol. Abr. 18. pi. 13. Cro. Car. 337. 353. (h) 2 Wils. 133. *451 Chap. 11-] and Relinquishment of Offices. 451 the defendant, he undertook and promised to pay the plaintiff 21. for every 100/. that such person should give for the purchase of the said place ; and the plain- tiff avers that confiding in the said defendant's promise and undertaking, after- wards on the same day and year at Westminster aforesaid, he, at the defen- dant's request, used his endeavours to procure, and by means thereof on the 1st of March, 1758, at Westminster, procured one John Gunston, being a pro- per person, to purchase of the defendant the said place for 1200/., and that the said Gunston did give to the defendant 1200/. for the purchase of the said place, whereby the defendant became liable to pay to the plaintiff 24/. for the purchase of the said place. There were also general counts for work and labour done, &c. Upon the debating this case at the bar, *it was urged by the coun- sel for the plaintiff, that he was neither a buyer or seller of the place or office, and that what he had done was at the defendant's request, and was neither malum in se, nor malum prohibitum, and therefore he ought to be satisfied for his labour and trouble ; but the whole Court were of opinion, that it was malum prohibitum, and within the statute of 5 & 6 Ed. 6. cap. 16. sec. 2. And though the plaintiff himself was neither buyer or seller, yet this appears to be a pro- mise to pay him money, to the intent that a person should have an office be- longing to the customs, which is within the very words of the statute ; but Mr. Justice Clive said, he thought the selling of offices was malum in se at common law, and that if the statute had never been made, he thought the procuring a person to buy the office of the defendant was not a good consideration in law to raise an assumpsit, (which was not denied by any of the judges,) because it was illegal ; as if a gaoler permits a prisoner to go at large upon his promising to satisfy the debt for which he is imprisoned, he escapes by the consent of the gaoler, and does not pay the debt according to his promise, the gaoler brings an assumpsit, but shall not recover, because the consideration was illegal ; for it is a most certain principle, that every consideration to ground an assumpsit upon must be lawful. But a promise by one of two candidates for the office of under-sheriff, in consideration that the other will desist, is good. Thus, in the case ot Park i v. Brown,(i) which was an action of assumpsit, whereas the plaintiff was suit- or to the sheriff of Middlesex, to obtain the office of under-sheriff' for such a year, and to be made under-sheriff for the same year, and was very likely to obtain the said place ; for which the defendant also, at the same time, was a suitor; that the defendant, in consideration the plaintiff would desist his suit, promised to the plaintiff' if he obtained the said office, and was made under-sheriff, to pay to the plaintiff 20/. for such a gelding, which the plaintiff' had delivered to him : and allegeth in facto, that he delivered to the defen- dant the said gelding ; and that the defendant was made under-sheriff, and exe- cuted the office for the said year ; and that he had not paid, &c. Upon non assumpsit pleaded, and verdict found for the plaintiff, judgment was given in the Common Pleas for the plaintiff; but a writ of error was brought in the (0 Cro. Jac. 612. *452 452 Of Contracts for the Sale, 8fC. [Part II. King's Bench : and the error insisted upon was, that this is no lawful nor val- uable consideration. But all the court held, " That the consideration was good and valuable ; for by this means the plaintiff desisted from his suit, and the defendant obtained the said office." Wherefore the judgment was affirmed. Chap. 12] Of Contracts to Marry, &?c. 453 ^CHAPTER XII. OF CONTRACTS TO MARRY, OR IN RESTRAINT OF MARRIAGE: AND OF AGREEMENTS TO PAY MONEY IN CONSIDERATION OF MAR- RIAGE : AND OF THE STATUTE OF FRAUDS RELATING THERETO. 1. Of Contracts to Marry.] — If a man and woman being unmarried mu tually promise to marry each other, but afterwards the man marries another wo- man, an action of assumpsit will lie, in which the woman shall recover dama- ges for breach of such a contract ; for though matrimonial causes are regularly cognisable in the spiritual court, yet the contract in such case being executory, and revoked by the subsequent marriage, could not be enforced in that court as a contract in pr&senti may ; and marriage being an advantage, and the loss of it a temporal loss, it is fit that there should be a remedy in the temporal courts, otherwise there would be a failure of justice, (a) And therefore, in the case of Rutter v. Hcbden,(b) which was an action of assumpsit in consideration that the plaintiff would marry the defendant, he promised to marry her : after ver- dict for the plaintiff, it was moved that this was a matter ecclesiastical upon which no action at law would lie. But the Court would not permit it to be ar- gued, and gave judgment for the plaintiff. So, in the case of Harrison v. Cage and wife,(c) which was also an action of assumpsit on a special promise of the woman before marriage, " that in consideration that the plaintiff' being a bachelor had on such a day and place promised to take her (whilst sole) to wife, she, whilst she was sole, &c, prom- ised the plaintiff to take him for her husband :" then he averred in fact, that he had tendered himself to marry her, and had requested her to marry him, but that she refused, and afterwards married the defendant. The cause was tried, and a verdict was found for the plaintiff, damages 400/., the woman being worth 3000/. when the plaintiff courted her, and afterwards by the death of her brother worth double *ihat sum. It was moved in arrest of judgment, that this action would not lie upon the promise of marriage made by the woman ; for the law doth not intend that the man is advanced by marriage ; and therefore such a (a) Bac. Abr. tit. Assumpsit, A. (c) Carth.4C7. 1 Ld. Raym. 386. S.C. (ft) 1 Lev. 147. 1 Sid. 180. S.C. *453 *434 454 Of Contracts to Marry > [Part IL promise of marriage to him is of no consideration in law, and by consequence no action can be founded thereon. But it is otherwise where a man promis- eth to marry a woman, because in the eye of the law marriage is an advance- ment to the woman. It was also contended that this promise was void for un- certainty, for ther e was no certain time agreed on when the marriage should take effect. (140) To which it was answered, and so resolved, per curiam, "That here were reciprocal promises ; and therefore as her promise to him was a good consideration to make his promise obligatory, so by the same reason his promise to her was a sufficient consideration to make her promise binding in this case as well as in any other mutual agreements." And the Court did not allow that distinction between the advancement of a man and of a woman in marriage ; and that this was a good promise, though the certain time of marriage was not agreed on, especially since the plaintiff averred, that he had offered to marry her, and that she refused, which in this case was necessary to be done, to entitle the plaintiff to this action. So, in the case of Hutton v. Manscll,(d) an action of assumpsit was brought, laying mutual promises of marriage between the plain- tiff and the defendant, and a refusal on the part of the man, who was the defen- dant. And upon evidence an express promise was proved to have been made by the man, but none by the woman. And per Holt Ch. J. " If there be an express promise by the man, and it appear the woman countenanced it, and by her actions at the time behaved herself so as if she agreed to the matter, though there be no actual promise, yet that shall be sufficient evidence of a promise of her side." And he said, he remembered a case in which he had been counsel, in Lord Chief Baron Montague 's time, where it had been so ruled upon evidence against his client ; and being then dissatisfied therewith, he put the case to eminent men of those times, who all concurred in opinion with the Chief Baron. So, if an infant and a person of full age mutually promise to inter-marry, the infant, although not bound by her promise, may, notwithstanding, maintain an action for breach of promise by the adult. Thus, in case of Holt v. Ward,(e) the declaration stated, that it was mutually agreed between the plaintiff and defendant, that they should marry at a future day, which is past ; and that in consideration of each other's promises, each engaged to the other : notwithstand- ing which the defendant did not marry the plaintiff, but had married another, which she laid to her damage of 4000Z. The defendant pleaded no?i assumpsit, and that the plaintiff, at the time of the promise, was an infant of fifteen years of age. *At the trial thereof a verdict was found for the plaintiff, with 200Z. dam- ages. But to the plea of infancy, the plaintiff demurred ; and the case was («Q 6 Mod. 172. 3 Salk. 16. S. C. (,) 2 Stra. 937. Fitzg. 275. (140) "Where a promise of marriage, generally, was proved, but the time was not fixed ; and the defendant broke off all intimacy with the plaintiff; and on request, did not assign the reason ; it was held, that it might be left to the jury to infer a refusal on the part of the defendant to marry her. Willard v. Stone, 7 Cowen, 2 _ 2. *454 *455 Chap. 12-] Of Contracts in Restraint of Marriage. 455 several times argued at the bar ; and the Court appointed an argument by- Civilians, to see what their law would determine in such a case. Upon the argument of the Civilians, no instance could be shown wherein they had com- pelled the performance of a minor's contract. And they who argued for the defendant strongly insisted, that in the case of a contract per verba de futuro (as this was) there was no remedy, even against a person of full age, in the spiritual court ; but only an admonition. And the only reason why they hold jurisdiction in the case of a contract per verba de prasenti is, because that is looked upon amongst them to be ipsum matrimonium, and they only decree the formality of a solemnization in the face of the church. Raymond Ch. J. afterwards delivered the resolution of the Court as follows : " The objection in this case is, that the plaintiff, not being bound equally with the defendant, this is nudum pactum, and the defendant cannot be charged in this action. Formerly it was made a doubt by my Lord Vaughan, (/) whether any action could be maintained on mutual promises to marry ; but that is now a point not to be disputed. (141) And as to the present case, we should have had no difficulty in giving judgment for the plaintiff, if we could have been satisfied by the arguments of the Civilians, that as the plaintiff was of the age of consent, any remedy, though not by way of action for damages, could be had against her. But since they seem to have had no precedent in the case, we must consider it upon the foot of the common law. And upon that the single question is, whether this contract, as against the plaintiff, was absolutely void." And we are all of opinion, that this contract is not void, but only voidable at the election of the infant ; and as to the person of full age it absolutely binds." (142) 2. Of Contracts in Restraint of Marriage.] — A promise by a man t o pay to a woman a sum of money if he shall marry any body else is consid- ered as a restraint of marriage, and therefore void. Thus, in the case of Lowe v. Peers, (g) which was an action of covenant upon a marriage contract ; be- ing a promise under the defendant's hand and seal in the following words : " I do hereby promise Mrs. Catherine Lowe, that I will not marry with any one person besides herself ; if I do, I agree to pay the said Catherine Lowe 1000/., within three months, &c." At the trial, the plaintiff obtained a verdict for the 1000/. But it was afterwards moved, in arrest of judgment, that this con- tract was not valid in law ; and of this opinion was the Court, and the judg- ment was accordingly arrested. Lord Mansfield Ch. J. said, " All these con- tracts ought to be looked upon with a jealous eye, even supposing them clear *of any direct fraud. And they should be determined on public and general (/) Carter, 233. (»•) 4 Burr. 2225. (141) It is lawful for a jury to infer mutual promises of marriage, from the defendant's visits to the plaintiff, as a suitor, and his declarations that he had promised to marry her. Southard v. Rexford, 6 Cowen, 254. After a promise of marriage has heen once broken, an offer, by the defendant, to renew it, is no defence in an action for the breach. Id. (142) See Willard v. Stone, 7 Cowen, 22. Hunt v. Peake, 5 Cowen, 475. *456 456 Of Agreements to Pay Money [Part II. considerations : engagements of this description are liable to many mischiefs, and to many dangerous consequences. When persons of different sexes, attached to each other, and thus contracting to marry each other, do not marry immediately, there is always some reason or other against it ; as disap- probation of friends and relations, inequality of circumstances, or the like. Both sides ought to continue free : otherwise such contracts may be greatly abused ; as by putting women's virtue in danger, by too much confidence in men, or by young men living with women without being married. Therefore these contracts are not to be extended by implication." And Yates Just, said, " This agreement is in restraint of marriage. It is not a covenant ' to marry the plaintiff; but not to marry any one else.' And yet she was under no ob- ligation to marry him. So that it restrained him from marrying at all, in case she had chosen not to permit him to marry her.'' So, in the case of Hartley v. Rice,(h) which was an action upon a wager- ing contract for 50 guineas, that the plaintiff would not marry within six years : this was held to be prima facie in restraint of marriage, and therefore void; no circumstance appearing to show that such restraint was prudent and proper in the particular case. 3. Of Agreements to Pay Money in consideration of Marriage ; and of the Statute of Frauds relating thereto.] — In one part of the fourth clause of the statute of frauds 29 Car. 2. c. 3. it is enacted, " that no action shall be brought whereby to charge any person upon any agreement made upon consideration of marriage, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised." Very soon after the passing of the act it was holden, that this branch of it ex- tended as well to mutual promises to marry, as to an agreement in considera- tion of marriage. Thus, in the case of Philpott v. Wallet, (i) which was an ac- tion of assumpsit, in consideration that the plaintiff, at the request of the defendant, would consent to take him to be her husband, the defendant promised to take her to be his wife ; and that the plaintiff was ready, and offered to take the defendant to be her husband, but he refused. This promise was made without any writing ; it was therefore contended that it was void by the statute ; but it was answered, that this was no promise within the statute, which was only intended of promises for payment of money upon marriages, and not of promi- ses to marry. But the Court resolved, that this promise is directly within the words, and not out of the intent of the statute ; because the promise *is, that in consideration the one would marry the other, the other would marry him, and therefore it is a promise in consideration of marriage. This construction of the statute, however, was afterwards much doubted, and in some cases denied ; (k) but it was at last finally settled, that mutual (h) 10 East. Rep. 22. (A) Vide Lord Raym. 337. (i) 3 Lev. 65. *457 Chap. 12.] In Consideration of Marriage. 457 promises to marry need not be in writing by the statute of frauds. Thus, in the case of Cork v. Baker, (I) the plaintiff declared, that in consideration she promised to marry the defendant, he promised to marry her at his father's death, who was since dead ; but the defendant refused so to do, and had af- terwards married A. B. It was objected, that this being a parol promise was not good in law. But, after argument, it was held, that this was not within the statute of frauds and perjuries, which relates only to contracts in consideration of marriage. A parol agreement to pay money, or make a settlement in consideration of marriage, if not reduced into writing previous to the marriage, is void ; and a subsequent marriage is not a part execution of such an agreement to take it out of the statute. But a subsequent marriage and settlement has been held sufficient to prevent the statute operating upon such parol promise, (m) So, where A. by letter promises to give such a fortune with his daughter to B., and B. marries the daughter on the encouragement of this letter ; this is sufficient to bring the agreement out of the statute of frauds ; and B. shall re- cover, because the agreement is executed on his part as far as it can be, and can never be undone after, (n) Letters from parents, or persons in loco parentis, containing promises of pro- visions, have been a frequent subject of adjudication ; and wherever they have been explicit hi their terms, and the subject-matter of the promise has been re- duced to sufficient certainty, they have been held to satisfy the statute. Thus, in a case determined a very few years after the statute was passed, where a father wrote a letter, signifying his assent to the marriage of his daughter with J. S., and that he would give her 1500/., and afterwards, by another letter, upon a further treaty concerning the said marriage, went back from the propo- sals of his first letter ; and again, at some time after, declared that he would agree to what was proposed in his first letter ; the letter was held a sufficient promise in writing, within the statute of frauds, and that the last declaration had set up the terms of the first letter again, (o) And an action of assumpsit will lie upon a contract or promise to pay mon- ey in consideration of marriage. Thus, in the case of Robert Browne *and wife v. Garborough,(p) which was an action of assumpsit, upon a promise made to the feme dum sola fuit : the declaration stated, that whereas a communication was between J. Browne, father of the plaintiff Robert, and the defendant, cous- in of the said Robert Browne, and the said feme, when she was sole, of a mar- riage to be had between the said plaintiffs ; and the said John Browne promised to the feme, that if the marriage did take effect, that he would assure to them such land, &c. ; and the defendant did then promise to her, that if J. Browne (0 Stra. 34. (o) Vide 2 Vent. 361. Prec. Chan. 560. (m) Montacute v. Maxwell, 1 P. Wms. 618. 2 Vcm. 200. 202. Stra. 236. S. C. See also 1 Ves. jun. 199. (p) Cro. Eliz.,63. Note, indebitatus asswmp- /^o 20 ^" r« «i< will not lie for money payable in consid- (n.) 2 t,q. Caa. Abr. 49. See also 2 Vcm, eration of marriage ; it must be on the spc- 322. 1 Vcs. 297. cial promise. Vent. 268. 458 458 Of Agreements to Pay Money [Part II. did not perform his promise, the defendant would give her 100/., and alleges that the marriage did take effect, and the lands were not assured, &c. upon non assumpsit, it was found for the plaintiff. But it was moved in arrest of judgment, that there was no sufficient consideration to ground the promise ; for the feme was a mere stranger to the defendant, and there was no reason for him to give her 100/. in marriage. But it was answered, that there was a good considera- tion ; for it was alleged, that the defendant was kinsman to Robert Browne, the plaintiff; and it is to be intended that by reason of these words she was induc- ed to marry R. Browne, which otherwise she would not have done ; and they directed judgment to be entered for the plaintiffs : and upon a writ of error brought, the judgment was affirmed : for, peradventure, she trusted the defen- dant rather than J. Browne, and the defendant was cousin to the said R. Browne, the plaintiff. So, if B., the daughter of A., be heir apparent to C, and D. promises to A., the mother, in consideration that she would consent and agree that the said B., her daughter, should marry his son, that he would give to the said A. 100/., upon which A. consents, and the marriage takes effect : this is a good consid- eration ; for nature has given the power of disposing to parents, and in nature their children are bound to obey them, (p) So, if A., in consideration that B. will marry his daughter, assumes and promises to give to B. 20/., and give to him twenty French pieces : this is a good promise : for this, according to our usual speech, shall be intended French crowns, which are the common coin of France, and here known, (q) So, if B. promises A., in consideration of marriage between A. and C, the daughter of B., that he will pay to A. 100/. at a time after, and in the mean time to pay according to the rate of 8/. for the interest thereof; this is a good consideration : the promise being upon a marriage, and not for money lent, (r) So, if a man promises another, in consideration that he will marry his daugh- ter, to give him as much as he hath given or should give with any of his other daughters, if after he gives such a *sum with another of his daughters, and dies, an action upon this assumpsit lies against the administrator notwithstand- ing it be collateral, (s) In Marsh and RainsforaVs case(/) there was a communication of marriage between M. and the daughter of R. and of 200/. to be given with the daughter, but they could not agree on the day of payment. Marsh stole away the daugh- ter, and married her without the knowledge or consent of the father ; but after- wards R. agreed and promised that in consideration he had married his daugh- ter he would give him 200/., and afterwards M. brought an action of assumpsit, (/>) Mo. 595. pi. 808. 857. pi. 1176. Hob. (s) 1 Vin. Abr 287. PI. 3. See also 3Bulst. lO.Brownl. 18. Hutt. 39. 1 Dan. Abr. 47. 1 235.248. 1 Rol. Rep. 193.433.pl. 29. Poph. Vin. Abr. 303. 143. 2 Roll. Rep. 104. Cro. Jac. 417. (q) Poynter v. Poynter, Cro. Car. 194. (t) 2 Leon. 111. Cro. Eliz. 59. Dy. 272. b. (r) 1 Vin. Abr. 297. pi. 15. 2 Sid. 116. S. in marg. 3 Lev. 366. *459 Chap. 12.] In Consideration of Marriage. 459 and recovered that sum. So, in another like action of assumpsit, (u) brought upon a promise of 20/. made to the plaintiff" by the defendant in consideration that the plaintiff, at the special instance of the said defendant, had taken to wife the cousin of the defendant ; that was good cause, although the marriage was executed and passed before the undertaking and promise, because the marriage ensued the request of the defendant. But in the case of Sandhill v. Jenny, (v) where the plaintiff" declared, that in consideration that the plaintiff had formerly married his daughter at his special instance and request, the defendant promised the plaintiff to pay him every year, during the life of the defendant, 10/., &c. The plaintiff", upon non assumpsit pleaded, had judgment ; but upon a writ of error in the Exchequer chamber the judgment was reversed, because the mar- riage was executed before the promise made, yet the declaration supposes that the defendant requested the plaintiff to the marriage. So, if there be a discourse between the father of A. and B., in relation to a marriage between the said A. and the daughter of B., and B. then affirms and publishes to the father of A. quod daret ei qui maritaret his said daughter with his consent 100/., and after A. marries the daughter of B. with his consent . yet this affirmance and publication of B. shall raise no promise upon which an action may be brought, because these words do not include any promise.^) (m) Dyer, 272. b. pi. 32. (u>) 1 Rol. Abr. 6. I. 40. Yel. 17. Noy. 11. (v) Ibid. 272. b. in marg. 1 Dan. Abr. 26. 5G THE LAW OF CONTRACTS AND PROMISES. PART THE THIRD. OF CONTRACTS AND PROMISES BY AND BETWEEN PARTICU- LAR PERSONS. CONTENTS. I. OF Contracts By and Between Partners ; and Who may Be Deemed a Partner and made liable to Partnership Debts and Contracts : And How Partners must Sue and be Sued. II. OF Contracts By and Between Master and Servant. III. OF Contracts By and Between Principal, Agent, Factor, and Broker : and their respective Liabilities. IV. OF Contracts with Agents of Government, or other Public 462 Of Contracts icilh Particular Persons. [Part III. Bodies ; or with an Officer in the Army on Behalf of a Regiment, &c. V. OF Contracts with Carriers, Wharfingers, and Warehouse- men ; and their Liabilities. VI. OF Contracts with Husband and Wife made before and after Marriage ; and of their respective Liabilities : and of Con- tracts made with Persons living together as Man and and Wife. VII. OF Contracts with Infants ; and of the Liability of Parent or Child for Necessaries. Chap. 1.] Of Partnership Contracts, Sj-c. 463 PART THE THIRD. CHAPTER I. OF CONTRACTS BY AND BETWEEN PARTNERS ; AND WHO MAY BE DEEMED A PARTNER, AND MADE LIABLE TO PARTNERSHIP DEBTS AND CONTRACTS. A partnership is a contract or agreement between two or more persons, to enter into and carry on some lawful trade or business, or other adven- ture, on their joint account and risk; and in which money, skill, and labour are to be employed; and the profit or loss divided between them either in just proportions, according to their respective shares and interests, or as may be agreed upon. The legislature has, in a few instances, and by particular acts of parliament, limited the number of persons who may associate themselves to- gether in partnership, namely, in the business of bankers, (a) and of coal mer- chants, (b) So, in marine insurances, and in lending of money on bottomree, an act of parliament passed in the reign of George the first, (c) wholly prohib- iting private partnerships in these concerns. No other restraint, however, is put upon joist adventures, excepting those schemes which have a mischievous tendency to delude and aggrieve the unwary public ; as was the case with the infamous South Sea bubble. Indeed we find that in the early pa rt of the reign of George the first, these schemes and devices had come to such a height, as to call for legislative interference ; and accordingly, by the statute 6 Geo. I. c. 18., after reciting the mischievous consequences of such projects, it is en- acted, " that such undertakings and attempts as are described in the act, and all other public undertakings and attempts tending to the common grievance () 28 Geo. 3. c. 53. s. 1. Geo. 2. c. 13. s. 5. (r ) Chap. 18. s. 12. *403 463 On Part?iersJiip Contracts, and [Part 111- of his Majesty's subjects, or great numbers of them, in their trade, commerce, or other lawful affairs, and all public subscriptions, and other matters in fur- therance of such objects, and more particularly acting as a corporate body rais- ing transferable stock, shall be illegal and void ; with a proviso, that the act shall not operate to prevent the carrying on partnerships as theretofore legally done." When a partnership is legally formed, all the members of the firm are liable to those with whom they, or any of them, may contract respecting the *joint concern ; and consequently secret or dormant partners, when known, are equally liable to third persons ; and they cannot excuse themselves by any private stipulation or agreement with each other : for we shall find it laid down as a general rule, throughout all the cases on this subject, that all who partici- pate in the profits shall be deemed partners, and liable to those who give credit to the firm : we shall also see, that a person may be made liable to partnership debts and contracts, if he participates in the profits, though by private agree- ment he is not to share in the loss ; and even though, as between himself and the firm, he may not, in point of fact, be a partner ; for an agreement to share profits alone cannot prevent the legal consequence of also sharing losses, for the benefit of creditors. Perhaps it may be difficult to find an exact definition of a partnership ; but it has been always holden, with some few exceptions, that where there is a share of profits, there shall also be a share of losses ; for whoever takes a part of the capital, or of the profits of it, takes a part of that fund to which the public have given credit, and to which they look for payment. If there be no original capital, the profits of the trade are themselves a capital, to which the creditor is to have recourse, (c) There are indeed cases in which a man, who is neither a partner in fact, nor participates in profit or loss, may render himself liable as such, and be fixed with partnership contracts, by his own improper conduct, either by allowing his name to be used as one of the firm, or by representing himself to be a partner ; for the public, who deal with a firm, and know nothing of the private arrangement between the parties en- gaged in the business, but who give credit to outward appearances, and to the conduct of those who are actively engaged and appear to be jointly concerned, and who by their interference and conduct induce others to deal with and treat them as partners, ought not afterwards, when the creditor comes to demand payment from all of them, to be turned round and told that some of the parties were not in partnership. If, indeed, the law did not make them all jointly lia- ble as partners, it would be permitting persons to hold out to the public false colours to a very mischievous extent. ((/) When once a person is fixed as a partner, it may be taken as a general rule, that he, and those who are acting with him, are liable not only for the joint acts^of all, but also the separate acts of each, so far as they regard the particular trade or concern in which they are so jointly engaged : and one partner may (r) Vide 2 II. Bl. 246. & 2 Sir William (J) Vide 2 H. Bl. 246. & 1 Esp. Rep. 29. Black. 1000. *464 Chap. 1-] Of the Liability of Partners* 464 pledge the credit of himself and co-partners to any amount. It was therefore very truly said by Lord Kenyon in the case of Wells v. Masterman,(d) " That when a man enters into partnership he certainly commits his dearest rights to the discretion of every one who forms a part of that partnership in which he engages." And in the *case of Baker v. Charlton,(c) his lordship observed, " It is an imprudent thing for a man to enter into partnership with any person, unless he has the most implicit confidence in his integrity ; for I remember," said his lordship, " Lord Mansfield mentioning a case where a gentleman of great fortune had lent a sum of money to a house and was to receive interest according to the profits of the business ; he had no idea at the time that this constituted him a partner, but it was so determined, and he was absolutely ruined, though he never intermeddled in the management of the business." And in the case of Crawshay v. Maule,(f) the Lord Chancellor Eldon said," If men will enter into a partnership, as into a marriage, for better and for worse, they must abide by it." These liabilities will be more fully considered, as well as the general subject of this chapter, under the following heads, namely, 1. WHAT AGREEMENT, STIPULATION, OR OTHER ACT, WILL CONSTI- TUTE A PARTNERSHIP OR JOINT DEALING, SO AS TO RENDER A PERSON LIABLE AS A PARTNER UPON CONTRACTS MADE WITH THE FIRM. 2. OF THE LIABILITY OF PARTNERS UPON CONTRACTS, &c. MADE BY ALL OR ANY OF THEM DURING THE PARTNERSHIP. 3. OF A CHANGE OR DISSOLUTION OF A PARTNERSHIP, AND THE LI- ABILITY OF A RETIRING PARTNER, EITHER FOR WANT OF PROPER NOTICE OR BY SUFFERING HIS NAME TO BE USED, &c. 4. OF THE PAYMENT OF DEBTS AFTER A DISSOLUTION OF PARTNER- SHIP; AND OF THE APPLICATION OF SUCH PAYMENTS. 5. HOW PARTNERS MUST SUE OR BE SUED DURING THEIR PARTNER- SHIP, AND AFTER THE DISSOLUTION OF THE PARTNERSHIP BY DEATH OR BANKRUPTCY. 6. OF THE RIGHT OF SET-OFF OF MUTUAL DEBTS. 7. OF CONTRACTS AND PROMISES BY PARTNERS INTER SE. (d) 2 Esp. Rep. 731. (/) 1 Swans. Kcp. 509. (e) Peake, 74. >465 466 Of Partnership Contracts, and [Part III. + 1 WHAT AGREEMENT, STIPULATION, OR OTHER ACT, WILL CONSTI- TUTE A PARTNERSHIP OR JOINT DEALING, SO AS TO RENDER A PER- SON LIABLE AS A PARTNER UPON CONTRACTS MADE WITH THE FIRM. 1. Bv a Participation of Profits, whether in the shape of Commis- sion, Interest, or Annuity, &c] In order to constitute a partnership, and to make a person liable as a partner, there must, in general, be some agree- ment to share in the profits of a trade or particular concern. Thus, in the case of Wavgh v. Carver, and others, (g) which was an action of assumpsit for o-oods sold and delivered, and for work and labour done, &c. And where a verdict was found for plaintiff, subject to the opinion of the court, on a case which stated, That on the 24th February, 1790, articles of agreement were duly- executed between Erasmus Carver and William Carver (two of the defendants) of the one part, and Archibald Giesler (the other defendant) of the other part, re- citing, " Whereas the said Archibald Giesler, some time since, received appoint- ments from several of the principal ship-owners, merchants and insurers in Hol- land, and other places, to act as their agent in the several counties of Hamp- shire, Devonshire, Dorsetshire, and Cornwall ; and whereas the said Erasmus Carver and William Carver have, for a great number of years, been establish- ed at Gospcrl in the agency line, under the firm of Erasmus Carver and Son, and hold sundry appointments as consuls and agents for the Danish and other foreign nations, and also have very extensive connections in Holland, and other parts of Europe ; and whereas it is deemed for their mutual interest, and the advantage of their friends, that the said Archibald Giesler should remove from Plymouth, and establish himself at Coices in the Isle of Wight ; and they had agreed, that each should allow to the other certain portions of each other's commissions and profits, that is to say, the said Archibald Giesler doth covenant, promise, and agree to pay or allow to the said Erastmts Carver and William Carver, one full moiety or half part of the commission agency, to be received on all such ships or vessels, as may arrive or put into the port of Cowes, and likewise one full moiety or half part of the discount on the bills of the several tradesmen employed in the repairs of such ships or vessels. And the said Eras- mus Carver and William Carver to pay or allow to the said Archibald Giesler, his executors, administrators, or assigns, three-fifth parts or shares of the com- mission or agency to be received by the said Erasmus Carver and William, on ac- count of all ships and vessels, the commanders whereof may in consequence of the endeavours, interference, or influence of the said Archibald Giesler, proceed from *Cowes to Portsmouth, and there put themselves under the direction of the said Erasmus Carver arid William Carver, in manner hereinbefore mentioned, an d likewise one and one-half 'per cent, on the amount of the bills of the several trades- (g) 2 H. Bl. 235. *4G6 *467 Chap. 1.] Of the Liability of Partners. 467 men employed in the repairs of such .ships or vessels, together with one-fourth part of such sum or sums as may be charged or brought into account for ware' house-rent, on the cargoes of such ships or vessels, respectively ; and also one- sixth part of such sum or sums, as may be charged or brought into account, for warehouse-rent on the cargoes of such skips or essels as may be landed at Cowes aforesaid. And also that they, the said Erasmus Carver and William Carver, their executors, administrators, or assigns, shall and will, well and trulyi pay or allow, or cause to be paid and allowed, unto the said Archibald Giesler* his executors, administrators, or assigns, one fourth part or share of the commis- sion or agency to be received by the said Erasmus Carver and William Carver, on account of all such ships or vessels that may arrive or put into the port of Portsmouth, or remain in the limits thereof, under the care and direction of the said Erasmus Carver and William Carver ; and likewise one-half per cent, on the amount oj the bills of the several tradesmen employed in the repairs of suck skips or vessels. And it is hereby likewise covenanted, that each party shall separately run the risk of, and sustain all such loss and losses, as may happen on the advance of monies, in respect of any ships or vessels, under the immediate care of either of the said parties respectively. In pursuance of these articles Giesler removed from Plymouth, and settled at Cowes, where he carried on the business of a ship-agent, in his own name, and contracted for the goods, &c. which were the subject of the action. And the question was, whether the defendants were partners on the true construc- tion of the articles ? The case was argued twice at the bar : and the Court, after taking time to consider of their judgment, determined that the defendants were partners ; and consequently jointly liable for the debt in question. And Lord Chief Justice Eyre said : " The discussion of this case has enabled me to make up my mind, and removed the only difficulty I felt, which was, whe- ther by construing this to be a partnership, we should not determine, that if there was an annuity granted out of a banking-house, to the widow, for instance, of a deceased partner, it would make her liable to the debts of the house, and involve her in a bankruptcy. But I think this case will not lead to that con- sequence. If the question were between A. and B. whether they were partners or not, it would be very well to inquire whether they had contributed, and in what proportions, stock or labour, and on what agreement they were to divide the profits of that contribution. But in all these cases, a very different ques- tion arises. The question is generally, not between the parties, as to what shares they shall divide, *but respecting creditors, claiming a satisfaction out of the funds of a particular house, who shall be deemed liable in regard to these funds ? Now a case may be stated, in which it is the clear sense of the parties to the contract, that they shall not be partners ; that A. is to contribute neither labour nor money, and to go still farther, not to receive any profits. But if he will lend his name as a partner, he becomes as against all the rest of the world, a partner, not upon the ground of the real transaction between them, but upon principles of general policy, to prevent the frauds to which creditors would be liable, if they were to suppose that they lent their money upon the 57 *46g 468 Of Partnership Contracts, and [Part III. apparent credit of three or four persons, when in fact they lent it only to two of them, to whom, without the others, they would have lent nothing. The argument gone into, however proper for the discussion of the question, is irrel- evant to a great part of the case. Whether these persons were to interfere more or less, with their advice and directions, and many small parts of the agreement, I lay entirely out of the case ; because it is plain upon the construc- tion of the agieement, if it be construed only between the Carvers and Giesler, that they were not, nor ever meant to be partners. They meant each house to carry on trade without risk of each other, and to be at their own loss. Though there was a certain degree of control at one house, it was without an idea that either was to be involved in the consequences of the failure of the other, and without understanding themselves responsible for any circumstances that might happen to the loss of either. That was the agreement between themselves. But the question is, whether they have not, by parts of their agreement, con- stituted themselves partners in respect to other persons. The case therefore is reduced to the single point, whether the Carvers did not entitle themselves, and did not mean to take a moiety of the profits of Giesler's house, generally and indefinitely as they should arise, at certain times agreed upon for the set- tlement of their accounts. That they have so done, is clear upon the face of the agreement: and upon the authority of Grace v. Smith(h) he who takes a moiety of all the profits indefinitely, shall, by operation of law, be made lia- ble to losses, if losses arise, upon the principle that by taking a part of the pro- fits, he takes from the creditors a part of that fund which is the proper security to them for the payment of their debts. That was the foundation of the de- cision in Grace v. Smith, and I think it stands upon the fair ground of reason. I cannot agree that this was a mere agency, in the sense contended for on the part of the defendants, for there was a risk of profit and loss : a ship-agent employs tradesmen to furnish necessaries for the ship, he contracts with them, and is liable to them, he also makes out their bills in such a way as to determine the charge of commission to the ship *owners. With respect to the commission, indeed, he may be considered as a mere agent, but as to the agency itself, ho is as much a trader as any other man, and there is as much risk of profit and loss, to the person with whom he contracts, in the transactions with him, as Avith any other trader. It is true he will gain nothing but his discount, but that is a profit in the trade, and there may be losses to him, as well as to the owners. If therefore the principle be true, that he who takes the general pro- fits of a partnership, must of necessity be made liable to the losses, in order that he may stand in a just situation, with regard to the creditors of the house, then this is a case clear of all difficulty. For though with respect to each other, these persons were not to be considered as partners, yet they have made (h) Post, 469. *469 Chap. 1.] Of the Liability of Partners. 469 themselves such, with regard to their transactions with the rest of the world. I am therefore of opinion that there ought to be judgment for the plaintiff." (143) So, in the case of Bloxam and Fourdrinier v. Pell and Brooke, {i) where it appeared there was a partnership for seven years between Brooke and Pell ; but at the end of one year it was agreed to be dissolved, but no express disso- lution was had. The agreement recited, that Brooke being desirous to have the profits of the trade to himself, and Pell being desirous to relinquish his right to the trade and profits, it was agreed, that Brooke should give Pell a bond for 2485/. which Pell had brought into the trade, with interest at five per cent. which was accordingly done. And it was farther agreed, that Brooke should pay to Pell 200/. per annum for six years, if Brooke so long lived, as in lieu of the profits of the trade ; and Brooke covenanted, that Pell should have free liberty to inspect his books. Brooke became a bankrupt before any thing was paid to Pell. And this action being brought for a debt incurred by Brooke in the course of trade, Lord Mansfield held that Pell was a secret partner: He said, " This was a device to make more than legal interest of money, and if it was not a partnership, it was a crime. And it shall not lie in the defendant PeWs mouth to say, it is usury, and not a partnership." But where a partner (who retires from the concern) lends money to his co- partner, upon an agreement to allow legal interest, with an additional annuity for a certain term of years ; this is not a continuance of the partnership, even with respect to third persons, provided there has been public notice of the disso- lution. Thus, in the case of Grace v. Smith,(k) which was an action of as- sumpsit for goods sold and delivered. On the trial a verdict was found for the defendant : and upon a motion to set aside this verdict, De Grey Ch. J. report- ed, that this was an action brought against Smith alone, as a secret partner with one *Robinson to whom the goods were delivered, and who became bank- rupt in 1770. That on the 30th of March, 1767, Smith and Rob inson en- tered into partnership for seven years, but in the November afterwards some disputes arising, they agreed to dissolve the partnership. The articles were not cancelled ; but the dissolution was open and notorious, and was notified to the public on the 17th of November, 1767. The terms of the dissolution were, that all the stock in trade, and debts due to the partnership should be carried to the account of Robinson only. That Smith was to have back 5200/., which he brought into the trade, and 1000/. for the profits then accrued, since the commencement of the partnership : That Smith was to lend Robinson 4000/., part of this 5200/., or let it remain in his hands for seven years, at five per cent. interest, and an annuity of 300/. per annum, for the same seven years : For all (i) Sittings in the King's Bench, 7 Mar. Rep. 909. 1775. coram Lord Mansfield, cited in 2 Bl. (A:) 2 Bl. Rep. 993. (143) .See Walden v. Sherburne, 15 J. R. 409. *470 4^0 Oj Partnership Contracts, and [Part III. which Robinson gave a bond to Smith. In June 1768, Robinson advanced to Smith 600/. for two years' payment of the annuity and other sums by way of interest, and gratuities, and other large sums at different times, to enable him to pay the partnership debts, Smith having agreed to receive all that was due to the partnership, and to pay its debts, but at the hazard of Robinson. That on the 1st of August, 1768, the demands of Smith were all liquidated and con- solidated into one, viz. 52001. , due to him on the dissolution of the partnership, 1500/. for the remaining five years of the annuity, and 300/. for Smith's share of a ship : in all 7,000/. for which Robinson gave a bond to Smith. That on the22d of August, 1769, an assignment was made of all Robinson'' s effects to se- cure the balance then due to Smith, which was stated to be 10,000/. Soon af- ter the commission was awarded. The Court of Common Pleas held, that these facts did not amount to a part- nership. Do Grey Ch. J. said : " The only question is, what [constitutes a se- cret partner 1 every man who has a share of the profits of a trade ought also to bear his share of the loss. And if any one takes part of the profit, he takes a part of that fund on which the creditor of the trader relies for his payment. If any one advances or lends money to a trader, it is only lent on his general per- sonal security. It is no specific lien upon the profits of the trade, and yet the lender is generally interested in those profits ; he relies on them for repay- ment. And there is no difference whether that money be lent de novo, or left behind in trade by one of the partners who retires. And, whether the terms of that loan be kind or harsh, makes also no manner of difference. I think the true criterion is, to enquire whether Smith agreed to share the profits of the trade with Robinson, or whether he only relied on those profits, as a fund of payment : a distinction not more nice than usually occurs in questions of trade or usury. The jury have said this is not payable out of the profits : and I think there is no foundation for granting a new trial." *The principle adopted in these cases, but more particularly in that of Waugh v. Carver, was fully considered, and acted upon in a recent case of Cheap and others, assignees of Brander and Barclay bankrupts, v. CramondJJ) where it appeared that the bankrupts, being merchants in London, recommended the defendant to consign goods to the house of Ruxton and Co., at Rio Janeiro, for sale ; the latter were to remit the proceeds to the bankrupts, who were to pay over the same to the defendant. The bankrupts, upon receiving advices from Ruxton and Co., that the goods were sold, advanced money to the defendant, on account ; and to recover which this action was brought ; Ruxton and Co. afterwards failed without remitting the proceeds. It appeared, however, that the bankrupts and Ruxton and Co. divided equally the commission on the sale of all goods recommended by the one house to the other. Upon this it was argued that the bankrupts were partners quoad hoc with Ruxton and Co. and and that the receipt of the proceeds of the goods was therefore a receipt by the (l) 4 Barn. &. Aid. UG3. Chap. 1.] Of the Liability of Partners. 471 bankrupts, and the advance by them to the defendant was a payment on account for which they were liable. In support of this proposition the case of Waugh v. Carver was cited and relied on. And the judgment of the Court of King's Bench was, that this agreement constituted a partnership. And Abbot Ch. J. said, " We are all of opinion that the present case cannot be distinguished in principle from that of Waugh v. Carver ; and our decision must be governed by it. It is true that in that case a definite part of the commission was, by agreement of the parties, to be deducted as compensation for the charges and expences before a division took place, and also that each party was to share in some specified measure with the other, in other parts of the profits of their re- spective business, such as warehouse rent, and discount upon tradesmen's bills : And it was contended in this case, on the part of the plaintiffs, that the bank- rupts and Ruxton were to be considered as dividing the gross proceeds only, and not the net proceeds or profits of each other's agency or factorage; and that a division of gross proceeds does not constitute a partnership. We think, however, that the previous deduction of a definite part of the commission be- fore the division in the case cited, is an unimportant fact. It cannot have the effect in all cases of leaving the remainder as clear profit, because the expence and charge cannot be in all cases uniformly the same, but must vary with the particular circumstances of each transaction ; so that in effect a part only of the gross commission or proceeds of the agency, and not the whole, was to be divided in that case ; and taking the definite deducted part at a fifth, or any other aliquot part, the absent house, instead of receiving one -half, as in the case at bar, would *by the agreement receive two-fifths, or some other definito part of the whole gross sum, and not an indefinite part thereof, depending up- on the actual and clear profit of the transaction. And although in the case of Waugh v. Carver, the agreement was not confined to a division of the commis- sion, but extended also to the monies received in certain other parts of the transactions of the two houses, yet the principle of the decision is not affected by that circumstance, the principle being that where two houses agree that each shall share with the other the money received in a certain part of the busi- ness, they are, as to such part, partners with regard to those who deal with them therein, though they may not be partners inter se." So, in the case of Bosanquct v. Wary,(m) where it was agreed between bankers, carrying on business in copartnership as London bankers, that neither of the partners should be engaged or concerned in banking business, or any transaction, matter, or thing, relating thereto, otherwise than upon the account, and for the benefit of the partnership ; and one member of the firm, with the consent of his partners, became a partner in a country bank ; and the London house was in the habit of transmitting weekly to the country bank, an abstract of their account, and of striking the balance half-yearly; the Court of Com- mon Pleas determined, that the London house were partners in the country bank. (m) G Taunt. 5!)«. and 2 Mar. 319. S. C. *472 472 Of Partnership Contracts, and [Part Ilf. If a member of a firm assigns his interest to another member of the same firm, either in trust to pay him an annuity for life, subject to vary as the profits of the concern vary ; or in trust for such of his children as he should appoint ; and in default of appointment in trust for the children, to be divided amongst them when the youngest should attain 21, the partnership continues. («) 2. In what Cases the Participation of Profits by Way of Remu- neration for Services may make a Person liable as a partner to Third Persons.] — An agreement that a broker shall have for his own profit, whatever sum he can obtain upon the sales, above a certain sum, does not constitute a liability as partner to third persons, (o) But if a person, as a re- ward for his labour, choose to stipulate for an interest in the profits of the business, instead of a certain sum proportioned to those profits, he is, as to third persons, a partner ; and no arrangement between the parties can prevent it.(p) So, where it is agreed to pay a person for his labour in a concern a given sum, in proportion to a given quantum of the profits, ithas been considered to be set- tled, that this does not constitute a partnership as to third persons : but that it does constitute a partnership if he have a specific interest in the profits themselves as profits. This was settled *in the case Ex parte Ha?nper,(q) where Lord Eldon said " The cases have gone to this nicety : upon distinctions so thin that I cannot state it as established upon due consideration ; that, if a trader agrees to pay another person for his labour in the concern a sum of money, even in proportion to the profits, equal to a certain share, that will not make him a partner ; but if he has a specific interest in the profits themselves, as profits, he is a partner. It is clearly settled, though I regret it, that if a man stipulates that, as the re- ward of his labour he shall have not a specific interest in the business, but a given sum of money, even in proportion to a given quantum of profits, that will not make him a partner ; but if he agrees for a part of the profits, as such, giving him the right to an account, though having no property in the capital, he is, as to third persons, a partner." (144) But where the proprietor of a lighter agreed with a person by whom it was hired, to share the profits from working the lighter, they are jointly liable to third persons ; but if the proprietor agree with a person who works the lighter, that in consideration of working it he should receive half the gross earnings ; there is not any joint liability, (r) So, where the proprietor of cattle agreed (?i) Ex parte Wilson, Buck. Rep. 43. (r/) 17Vee.404. (o) Benjamin v. Porteus, 2 H. Bl. 590. (r) Dryv. Boswell, 1 Campb. 329. (p) Ex parte Rowlandson, 1 Rose Rep. 91. (144) Where one person advances funds, and another devotes his personal services in the business, for which he is to receive a proportion of the profits, a partnership subsists between them, botli in respect of themselves and of third persons. Dob v. Hatsey, 16 J. R. 34. But, where C. furnished money to D. to be employed in trade, either by D. alone or with a third person, the net profits to be equally divided between C. and D., and D. enter- ed into partnership with B. ; held, that as between C. and D. this transaction amounted only to a loan of money ; though as to creditors dealing with D , they would have been consid- ered as partners. * Bailey v. Clark, 6 Pick. 372. See Lowrey v. Brooks, 2 M'Cord, 421. Muzzy v. Wliitney, 10 J. R. 226. *473 Chap. 1.] Of the Liability of Partners- 473 with the owner of land that the cattle should be pastured upon the land, and that the profits, after they were fatted, above a certain sum at which the cattle were estimated, should be equally divided between the proprietor of the cattle and the ow ner of the land ; this is merely a mode of paying for the pasture, and does not constitute a joint liability. (s) So, if a person make himself re- sponsible to the vendor for a purchase upon an agreement with the purchaser, that if any profit arise from the sale he should have one half for his trouble ; this does not constitute a partnership between the parties, (t) So, where the sailors and captain agreed that the produce of the voyage should be divided in certain proportions amongst the owners, the captain, and the officers and sea- men ; it has been ruled, that this does not constitute a partnership between the parties, but that the sailors are entitled to wages in proportion to the produce of the voyage, (w) An agreement to pay in lieu of wages, primage, &c. one-fifth of the profit or loss of the voyage does not constitute a partnership with the captain or sailors.(u) 3. Of unincorporated Societies.] — The members of unincorporated soci- eties or trading companies are liable to third persons as partners ; for such companies are merely partnerships. (w)( 145) But when incorporated they possess the quality and privileges attendant upon all Corporations of not being individually liable for a corporate act. (x) (146J In the case of Rex v. Dodd,(y) Lord Ellenborough Ch. J., in speaking upon the mischiefs attendant upon unincorporated societies with transferable shares, says, " But independent of the general tendency of schemes of the nature of the project now before us to occasion prejudice to the public, there is besides in this prospectus a prominent feature of mischief; for it therein appears to be held out, that no person is to be accountable beyond the amount of the share for which he shall subscribe, the conditions of which are to be included in a deed of trust to be enrolled. But this is a mischievous delusion." And Lord Eldon says in Carlen v. Drury y just cited in note(w?), " I hold it to be clear that each individual is at law answer- able for the amount of the whole debts in the concern." 4. Of a Sub-division of profits.] — A sub-agreement between a member of a partnership firm and a stranger, to share in his individual profits arising (s) Wlshw. Small, Ibid. 331. n. (to) Carlen v. Drury, 18 Ves. 157. (t) Htskelh v. Blanchard, 4 East Rep. 144. (x) Beaumont v. Meredith, 3 Ves. and (it) Wilkinson v. Fraser, 4 Esp. Rep. 182. Beame Rep. 160. (v) Mair v. Glennie, 4 Maule & Sel. 240. (y) 9 East Rep. 516. (145) By articles of agreement entered into by an association of persons, for the purpo- ses of marine insnrance, it was stipulated, that each member should bear his proportion of the losses, without any negative words that they should not be liable for more, in case of the insolvency of any of them ; this was held to constitute an ordinary partnership ; and that the members were bound in solido, each for the whole ; not only as to strangers, but as to members of the association, who had procured insurance. Shubrick v. Fisher, 2 Des. 148. (146) The stockholders of the North River Steamboat Company, being vested with corpo- rate powers, rights and privileges, arc not a copartnership ; but the parties are tenants in common of the property, and franchises belonging to the corporation. Livingston v. Linch, 4 J. Ch. R. 573. #474 474 Of Partnership Contracts, and [Part II [. from the firm, does not, as it should seem, rentier the stranger liable to third persons as a partner in the firm, (z) 5. What shall constitute a Partnership in a particular Purchase or Adventure, &c] — In order to constitute a partnership in a partic- ular purchase there must either be a joint undertaking- to pay, or an agreement to share in the profit and loss. This point was determined in the case of Hoare and others v. Dawes and another, (a) which was an action for money lent and advanced. The facts of the case appeared to be as follow : the plaintiffs, who were bankers, had advanced a sum of money on certain tea-warrants of the East India Company to Conlencin, a broker, who deposited the tea-warrants with the plaintiffs as a security, and also gave them his note of hand for the sum advanced. He had been employed by a number of persons, of whom the defen- dants were two, to purchase a lot of tea, at the East India Company'' s sale, of which they, (together with himself,) were to have separate shares, the lots be- ino-, in general, too large for any one dealer. The practice at such sales is, for the company to give a warrant or warrants to the broker or purchaser, for the delivery of the quantity of tea purchased, on payment being made. At the time of the sale 251. per cent, is advanced, and is forfeited unless the whole is paid on the third, which is the last day of payment. If paid sooner, allow- ance is made for prompt payment. The warrants are often pledged, and mon- ey raised upon them ; generally considerably less than the supposed value of the tea. It happened, however, in this instance, between the time of the deposit of the warrants with the plaintiffs, and the time when the payment was to be made at the India House, that the value of the tea sunk so much *as to be con- siderably under the amount of the sum advanced. The broker, in the mean time, had become a bankrupt, and had informed the plaintiffs who his employers were, all of whom, except the defendants, were since either dead, or become bankrupts. The shares of the defendants were to be two-sixteenths of the whole lot. The ground of the action was, that all the employers of the brok- er were to be considered as partners, and jointly and severally liable for the whole. The defendants owed nothing upon their own two-sixteenths. There was not any joint concern in the re-disposal of the tea. The defendants produc- ed several bankers and brokers, (of whom Contencin was one,) who said, they had had frequent transactions of this sort, (it being a very usual specula- tion,) and they always understood, that the only security was the pledge, and the personal security of the broker, unless where the principals were enquired after, and declared, which was very rarely done. That, as the practice was to advance considerably under the supposed value of the tea, and it was also usual to stipulate, that, if the money was not repaid within a certain time, the lender might sell, the warrant was of itself a general and sufficient security. Contencin said, that tea-warrants were considered as cash, and passed by de- livery. On the other side, in answer to this evidence, (the plaintiffs having, at 0) Ex parte Barrow, 2 Rose Rep. 254. (a) Doug. 371. *475 Chap. I.] Of the Liability of Partners. 475 first, rested their case on the fact, that there were persons hehind the curtain, for whom the broker acted,) two witnesses were called : one of them, one Car- tony, a tea-dealer, swore, that a broker had once borrowed some money for him on tea-warrants, from the plaintiffs, and that the value of the tea having fallen under the sum advanced, and the broker having failed, he had paid the diffe- rence, considering himself as liable. The other was a person who had also dealt in tea and in loans of this sort, and he swore, that his idea had always been that the persons behind the curtain were liable ; but, upon cross examina- tion, he said, he never knew any loss happen, nor any demand actually made on the broker's employers. The Court of King's Bench, upon these facts being stated, were of opinion that they did not constitute a partnership. And Bailor Just, said, " This is a very plain case. The plaintiffs had no reason to consider the broker as a part- ner with the other persons, for though he had a share, he did not act or appear as a partner. Nor were they partners as among themselves. They had never met or contracted together as partners. If this transaction were sufficient to constitute a partnership, a broker would have it in his power to make 500 per- sons partners, who had never seen or heard of one another, or might, at his pleasure, convert his principals into partners, or not, without any authority from them, by taking joint or separate warrants." So, where one person agrees to buy a quantity of goods, and to let others have a certain proportion of them, he alone is answerable ; such a transaction being considered a mere sub-contract, and not a partnership. *Thus, in the case of Coope and others v. Eyre and others, (b) which was an action of as- sumpsit, brought by the plaintiffs as owners of a Greenland ship, called the Earl oj Chatham, against the defendants, as partners, on an agreement to pur- chase oil, the cargo of a ship. It appeared that on the 24th August, the de- fendants, Eyre, for himself and partners, (who were Atkinson and Walton, general merchants) Hattersley, for himself and Stephens, who were oil mer- chants, and Pugh, for himself and son, who were also oil merchants, agreed to purchase jointly as much oil as they could procure, on a prospect that the price of that commodity would rise ; that Eyre should be the ostensible buyer, and the others share in his purchase at the same price which he might give. Hat- tersley and Co. were to have one-fourth, Pugh one-fourth, and Eyre and Co. the remaining moiety ; that they bought large quantities of oil belonging to other ships and other traders besides the plaintiffs, in the name of Eyre and Co. ; that Hattersley and Pugh occasionally came forwards, and gave direc- tions as to the delivery of the oils, and otherwise interfered in the transaction, and also made many declarations, " that they were all jointly interested in the different purchases, and that there was a general concern between them." The evidence as to this point was in substance as follows : Garforlh, the bro- ker, proved the contract, signed by Eyre, for himself and Co. ; general orders (b) 1 H. B!. 37. 53 * 47G 476 Of Partnership Contracts, and [Part 111. from Eyre only, to purchase any quantity of oil which might offer. Hatterslcy and Push told him they were to have a part of what was purchased in the firm of Eyre and Co., and that they were jointly concerned. They went to receive a cargo sold by Thwaites, at Blackwall. Thwaites, who had also sold oil to the defendants, proved that Hatterslcy said, " It is all the same whether Eyre or I buy it ; it is the same concern ;" and that Pugh said, " Hatterslcy and I am concerned ;" that they attended to see the oil guaged : Strickland, who had the care of Greenland dock, proved that Hatterslcy and Pugh said, " We have purchased your oil ;'' that on failure of Eyre and Co., Pugh sent an or- der not to deliver the oil of the ship Britannia, which had been purchased by Eyre and Co., and had the cellars locked. Kilbington sold oil to Eyre and Co. by Garforth the broker, delivered to Hatterslcy, who gave in payment a bill accepted by Eyre and Co., and his own note, to indemnify the witness in making an indorsement. Captain Hastings sold oil to Eyre and Co. by the same broker, for which Pugh signed an agreement. Captain Bowson also sold oil by Garforth to Eyre and Co., for which Pugh gave a receipt ; and being asked, whether the buyers were responsible persons, told the witness he was safe, saying, " I am concerned, Hatterslcy is concerned, and there is a house at Norwich which can buy us all.'' Pugh afterwards repeated this in the pre- sence of Hatterslcy, who acknowledged it to be *true. Phelps proved that he was agent to sell oil for a Mr. Ycomans, and not trusting to Eyre only, whom he considered as a mere speculator, required the names of the others concern- ed to be given in, upon which Garforth the broker gave in the names of Hat- tershy and Co. On the part of the defendants, it was insisted that the con- tract for sale was made between the plaintiffs and Eyre and Co. only, and that the agreement which the defendants entered into between themselves was only a sub-contract, and did not constitute a partnership. Lord Loughborough Ch. J., after declaring his opinion, (that as the defendants did not appear to have been jointly concerned, further than the purchase of the oil, they had not such a joint interest in the profits and loss as the law made necessary to a partner- ship,) directed a verdict to be found for them, which was accordingly done. But the plaintiff's counsel afterwards moved for a rule to show cause why a new trial should not be granted. In support of the rule they admitted that a participation of profit and loss was necessary to constitute a partnership, and argued that this was a contract of that nature. Whether the agreement be to divide the goods themselves at a given time, or the produce on the sale of them, each party runs the same risque, and each has his share of profits and Joss, either in the increased or decreased value of the goods, or the increased or decreased price for which they might actually be sold. It could not be a sub- sale to Hatterslcy and Pugh, because each was to have a share on the same terms as Eyre and Co. purchased. But Eyre and Co. were merchants, and merchants never buy to sell again at prime cost. Hatterslcy and Pugh must therefore be said to have shared originally in these barg-aiiis, and not to have *477 Chap. 1.] Of the Liability of Partners. 477 purchased any second part of them. The spirit of buying and selling is gain : the spirit of partnership is mutual participation of gain. The majority of the Court determined, that this transaction was not a part- nership. And Heath Just, said, " The question for the determination of the Court is, whether the contract made with the plaintiffs is so far binding on the defendants, Pugh, Hattersley, and Stephens, as to make them liable on the fail- ure of Eyre and Co. V If this contract may be considered independently of the other contracts given in evidence, there could be little doubt. Eyre and Co. employ Garforth, their broker, to buy oil, and it is agreed that the other defen- dants shall have aliquot parts when the commodity is purchased. This is a sub-contract. By a sub-contract I mean a contract subordinate to another contract, made or intended to be made, between the contracting parties on one part, or some of them and a stranger. Eyre and Co. are the only purchasers known to the plaintiffs ; entire credit was given to them alone. Pugh, Hatters- ley, and Stephens can be liable only in the event of a concealed partnership, on this principle, " that the act of one partner binds all his co-partners, on account of the communion of profit and *loss." In truth, they were not part- ners, inasmuch as they were only interested in the purchase of the commodity and not in the subsequent disposition of it. Great reliance has been placed on this being a joint concern, and a joint speculation. It is so between the defendants, but the contracts made with the other vendors are different. A contract made between A. and B. cannot be given in evidence to explain a con- tract made between A. and C. It is res inter altos acta. In fact, the defen- dants have pledged themselves explicitly with other persons in a different man- ner. The contracts made with other merchants are not admissible evidence in this cause, except to prove a fraud, if the facts had gone that length ; namely, that the house of Eyre and Co., as a failing house, was to stand forwards, in order to protect the other defendants, who, by such means, might have the benefit of the speculation, if it proved fortunate, without sustaining any loss in the event of its failing. No such evidence has been adduced ; on the contrary, it appears that the objection made by the other vendors to the firm of Eyre and Co. was, " that they were unknown, and new i?i the trade.'''' No detriment from this decision can arise to trade, or affect the credit of mer- chants ; for it behoves every contracting party to consider the responsibility of the persons with whom he contracts, and he has also the resource of a dormant partnership, if any such exist and can be proved. For these reasons I am of opinion that the rule ought to be discharged." And of this opinion were Mr. Just. Gould and Lord Jjoughborough. But Mr. Just. Wilson differed in opin- ion with the rest of the Court. So, in another case,(c) where A. having neither money nor credit, offers to B. that if he will order with him certain goods to be shipped upon an adven- ture, if any profit should arise from them, B. should have half for his trouble ; (c) Ileskelk v. Blanchard, l East Hep. 144. *478 478 Of Partnership Contracts, and [Part 111. B. having lent his credit on this contract, and ordered the goods on their joint account, which were furnished accordingly, and afterwards paid for by B. alone ; it was holden that he was entitled to recover back such payment in assumpsit against A., who had not accounted to him for the profits. Loid Ellenboroug h Ch. J. said, " The distinction in Wai/^/i v. Carver, (d) applies to this case. Quoad third persons it was a partnership ; for the plaintiff' was to share half the profits. But as between themselves, it was only an agreement by way of compensation for the plaintiff's trouble." If several persons agree in an adventure to the East Indies, and to provide a cargo of goods which shall in the judgment of the majority be proper for the voyage ; and permission is given to the ship's husband to ship on the joint account as many goods as he may think fit ; such goods being first approved by a majority of the persons concerned in the adventure as proper for the voyage, and such ship's husband shall *share a proportionate profit and loss with the respective adventurers ; and it is afterwards agreed, that each party is to hold no other share or proportion in the said concern than the amount of what each separately orders and ships : and that the orders given for the cargo and outfit of the ship are to be separately paid ; and that one is not bound for any goods or stores ordered or shipped by the other, and that the supercargo shall have free liberty to ship what goods are suitable to the voyage, over and above the ship and outfit, leaving room for those ordered by the adventures ; and that the ship be made over in trust for the general concern : if the super- cargo afterwards purchase goods for part of the cargo, and the ship sail with the goods so purchased as part of the cargo, and with other goods; the lia- bility for such goods is only the separate liability of the supercargo, [e) And Lord Kenyon Ch. J. said, " At the time that this copper was furnished, Pearce, the ship's husband, stood in no relation whatever with the other persons ; but he alone bought the copper in his own name, without carrying to market the name of any other person but his own. Suppose the plaintiff' had brought an action for this copper the instant it was delivered on board, against whom must the action have been brought 1 Pearce only ; for he alone was answerable at that time. I cannot therefore see how it can be said that these goods which were sold to Pearce only, and on his sole credit and account, were sold and delivered on the partnership account. Afterwards, indeed, these defendants were to gain or lose by the joint cargo ; when the other goods were brought in, the part- nership arose ; but each was to bring in his own particular stock. But in this case I think that the question stops short of affecting the defendants ; and 1 cannot see how the plaintiff can have a right to call on the defendants as part- ners for the value of these goods on a supposed contract, when the real contract between the buyer and seller was consummated before the joint risk began. Suppose several persons agree to open a banker's shop, and it was agreed that each partner should bring into the house a certain sum of money as his share, {<') Ante, 146, (?) SaviUe v. Robertson, 1 Term Rep. 720. *H9 Chap. 1] Of the, Liability of Partners. 479 it could not be contended, that if one of them were to borrow money for his share, all the others would be liable for it." But in the case of Gouthwaite v. Duckworlh,(f) it was determined, that if a creditor having been jointly con- cerned with his debtor, agree with such debtor to be jointly and equally con- cerned in an adventure abroad, and that such debtor shall purchase and pay for goods for the adventure, and the returns shall be made to the creditor in liqui- dation of his debt ; and in consequence of such agreement, the debtor purchase goods for such adventure ; it is a partnership agreement, and both debtor and creditor are liable to the vendors of the goods. And Lord Ellenborough Ch. J. shows the distinction between this case and the last : his Lordship says, " The case of *Saville v. Robertson does indeed approach very near to this, but the distinction between the cases is, that there each party brought his separate par- cel of goods, which were afterwards to be mixed in the common adventure on board the ship, and till that admixture, the partnership in the goods did not arise. But here the goods in question were purchased in pursuance of the agreement for the adventure, of which it had been before settled, that Duck- worth was to have a moiety." And Mr. Justice Bayley observed, "That in Sa- ville v. Robertson after the purchase of the goods made by the several adventur- ers, there was still a further act to be done, which was the putting them on board the ship, in which they had a common concern for the joint adventure ; and until that further act was done, the goods purchased by each, remained the separate property of each. But here as soon as the goods were purchased, the interest of the three attached in them at the same instant, by virtue of the pre- vious agreement." In the case of proprietors of stage coaches it has been held, that if the pro- prietors of a stage coach from London to a distant place, divide the road into different quarters ; and the separate proprietors are severally the owners of the harness and horses which draw the coach through dieir respective districts, and severally provide their stabling, food, and horse-keepers in their districts, and the profits are divided in proportion to the number of miles ; and it is notorious on the road, that the separate proprietors horse the separate stages, and that the tradesmen on the road give credit to the separate proprietors for all goods furnished to them, and there is no evidence that purchases made by the separate proprietors are, upon the general adjustment of accounts between all the propri- etors, computed as part of the general outgoings ; — and if goods are delivered to one of the proprietors for the use of his horses, by a vendor, who is the owner of the stable where such horses are kept, and who receives part of the price of the goods by a bill drawn separately on such proprietor, and who expresses his fears that upon the failure of such proprietor, he shall lose the residue ; such vendor can recover only from the proprietor with whom he immediately dealt, (g) A partnership may exist in a particular concern without constituting a gen- (/) 12 East, 121. (g) Bailon v. Hanson, 2 Campb. 97. 2 Taunt. 49. # 480 480 Of Partnership Contracts, and [Part III. eral partnership, unless a representation is made of a general partnership. Thus, in the case of De Berkom v. Smith and Lewis (h), which was an action of assumpsit to recover the value of a quantity of foreign lace against the de- fendants, charging them as partners. It was admitted that Smith, one of the defendants, was liable, but the other defendant, Lewis, denied that he was a partner. This was the only question in the case. The evidence on the part of the plaintiff was, that he was a foreigner living at Lisle in Flanders ; that having been *applied to by the defendants for a quantity of lace on credit, that before he would furnish it, he wrote over to his correspondent in London to in- quire concerning their circumstances and situation ; that his correspondent had inquired from Mr. Botham, a merchant in London, who informed him that they were in partnership in trade, which information the correspondent communica- ted to the plaintiff, who in consequence thereof gave them the goods on the terms they asked. The only connexion in trade between Mr. Botham and the defendants, was in discounting bills, which Mr. Botham had been in the habit of doino- for Smith, one of the defendants, but that on discounting a bill at one time for Smith, he had introduced Lewis to him as his partner. Lord Kent/on Ch. J. upon the evidence ruled, " That it was not sufficient to charge Lewis as a partner." That persons might be partners in a particular concern or business, but that notwithstanding if they did not appear to the world as partners, that it should not be sufficient to constitute a general partnership, and make them lia- ble in other cases not connected with such particular business. That the cir- cumstances in evidence of the introduction of Lewis to Mr. Botham should be taken secundum subjectam materiam, that is, as applying to the transaction in which Smith was concerned with Mr. Botham, the discounting of bills, to which transaction only it should be confined, and that he was therefore of opin- ion, that without further evidence a general partnership could not be establish- ed, in order to charge Lewis the other defendant in this action." However, it afterwards appearing in evidence that in part Lewis had represented himself to the plaintiff as partner in trade with Smith ; his lordship, in his charge to the jury, added, '' That though, in point of fact, parties are not partners in trade, yet if one so represents himself, and by that means gets credit for goods for the other, that both shall be liable." The plaintiff therefore upon this evidence obtained a verdict. (147) (h) 1 Esp. Rep. 29. (147) Though the part owners of a ship are, generally speaking, tenants in common, yet, there may be a special partnership between them, in the ship, as well as in the cargo, in re- lation to a particular voyage or adventure ; And in such case, where one of two partners receives or obtains possession of the whole proceeds, he has a right to retain them, until he is reimbursed or indemnified for what he has ; aid or advanced more than his share, for out- fits, repairs and (■■xpciic.es on account of the particular adventure; but not for a general ba- lance of account arising from former and distinct voyages or adventures ; whether in the same or different vessels, there being no general partnership between them ; and each ad- venture constituting a separate partnership, which terminated with the particular adventure. Mumford v.JficoU, 20 J. R. 61 1. Owners of freight and cargo are also partners. Id. So, *481 Chap. 1.] Of the Liability of Partners. 481 6. In what Cases a Person, not being in Fact a Partner, may nevertheless make himself liable as such with third persons. j if a person suffers his name to be used in a business, and holds himself out as a partner, though in point of fact no partnership exists, he is liable to a creditor who contracts with the firm. This was determined in the case of Young v. Axtell and another (i), which was an action to recover 600/. and upwards for coals sold and delivered by the plaintiff, a coal merchant. An agreement be- tween the defendants was given in evidence, stating that the defendant Mrs. Axtell had lately carried on *the coal trade, and that the other defendant did the same ; that Mrs. Axtell was to bring what customers she could into the business, and that the other was to pay her an annuity, and also 2s. for every chaldron that should be sold, to those persons who had been her customers, or were of her recommending. The plaintiff also proved, that bills were made out for goods sold to her customers, in their joint names ; and the question was, whether Mrs. Axtell was liable for the debt 1 Lord Mansfield said, " He should have rather thought on the agreement only, that Mrs. Axtell would be liable, not on account of the annuity, but the other payment, as that would be in- creased in proportion as she increased the business. However, as she has suffered her name to be used in the business, and held herself out as a partner, she was certainly liable, though the plaintiff did not at the time of dealing know that she was a partner, or that her name was used." And the jury according ly found a verdict for the plaintiff. 7. Of infant Partners.] If the executors of a deceased partner con- tinue his share of the partnership property in trade for the benefit of an infant ; and the partnership business is continued, and the executors divide the profits and loss with the partners, they are partners and liable as such, though they act solely for the benefit of the infant, and though their names are not used in the business. (A) If duriag a partnership, between an adult and an infant, the paitners for the purpose of carrying on their trade take a lease of certain premises, and the lease purports to be granted in consideration of a sum paid by the infant and (?") Cited in 2 H. Bl. 242. Note, if there notice is given, cannot sue him, though he he a particular stipulation between joint deal- may take a share of the profits. Alderson v. crs, that one of them shall not be liable as a Pope, 1 ( lampb. 104. n. partner, and notice whereof is given to some (k) Wightmanv t Townroe, 1 Maule & Sel. with whom they deal, those to whom such 412. where H. &. S. made a joint purchase, each paying one half of the price : They sold one package of the goods to A., on credit, and divided the residue of the goods equally between them ; and fl. paid S. one half of the price of the package sold : A. having become insol- vent, H. brought assumpsit against A. to recover one half of the loss arising from the insol- vency of A. ; it was held, that this was a partnership transaction ; and therefore, that an anion atlaw couldnotbe sustained without an express promise to pay. Hoisted v. Schmd- zcl, 17 J. R. 80. So, if two persons, jointly, become the owners of goods, and one of them, with the assent of tiie other, take them to market, under an agreement that every thing should be done to forward the business, and the goods converted into money, and the goods are sold accordingly, and the avails applied to the payment of a joinl debt; these facts are the necessary ingredients of a limited partnership. Crumpston v. MWair, 1 Wend. 457. # 482 4S2 Of Partnership Contracts, and [Part III. the adult, of which one moiety is paid by the infant in the presence of the adult, and bills of which the first is due four months after date, are drawn by the les- sor for the other moiety, and accepted by the infant in the partnership firm, and if upon his attaining twenty -one, some weeks before the first bill is due, he dis- solve the partnership, but his name remain over the door for three weeks af- terwards ; and if the adult enter into a new arrangement with the lessor, by which he gets a remission of part of the rent and taxes ; and when the first bill becomes due it is dishonoured, and the lessor sue the adult alone, who compro- mises the action, without the knowledge of the infant, by surrendering the lease to be cancelled, and by having the bills destroyed ; and no express notice is given by the infant to the lessor of his disaffirmance of the contract ; and the infant commence an action against the lessor for the moiety which he paid ; it ought to be left to the jury to determine whether the lessor has not dispensed with formal notice of disaffirmance. (I) If an infant partner do not, upon his attaining the age of twenty-one, *notify his discontinuance of the partnership, he is liable as a partner for goods supplied after he attains that age. (m) If a father open a bank in his own name and the name of an infant son, who has no interest in the concern, the father cannot in his own name maintain an action against a customer of the house for money advanced, unless it appear that the son has no share aspaitner with the father, and that the money advanc- ed belonged to the father : for though an infant be a member of a firm, yet he must join in an action for recovery of a debt due to the firm. (n)( 148) But if one of two partners is an infant, the holder of a bill accepted by both, may declare upon it as accepted by the adult only, and if the defendant pleads in abatement that the other partner ought to be joined with him as a defendant, the plaintiff must reply his infancy, and it is no departure, (o) 2. OF THE LIABILITY OF PARTNERS UPON CONTRACTS, &c. MADE BY ALL OR ANY OF THEM DURING THE PARTNERSHIP. 1. Of the Purchase, Sale, and Warranty of Goods ; and of the pledg- ing thereof.] — It is a general rule, that the act of every single partner, in a transaction relating to the partnership, binds all his copartners, however disadvantageous it may happen to be to the concern ;(149) and even though it (/) Holmes v. Blogg, 8 Taunt. 35. 1 (n) Teeds v. Elworthy, 14 East 210. Moore, 466. (o) Burgess v. Merill, 4 Taunt. 468. (m) Goode v. Harrison, 5 Barn. & Aid. 147. See also Gibbs v Merill, 3 Taunt. 313. (148) See Wamsleyv. Linde nberger & Co., 2 Rand. 478. (149) See Tillier v. Whitehead, 1 Dall. 269. Crawford v. Willing, 4 Dall. 286. Manhat- tan Company v. Ledyard, 1 Caines, 192. Walden v. Sherburne, 15 J. R. 409. Odiorne v. Maxey, 15 Mass. Rep. 39. Kelley v. Hurlburt, 5 Cowen, 534. Reynolds v. Cleveland, 4 Cow- en, 282. A copartnership formed to transport passengers and their baggage, by a line ol stages, does not, from the mere nature of the business, authorize one of the partners to bind the firm by an agreement that he will convey a person a certain distance, within a spe- cified time. Walcottv. Canfield, 3 Conn. Rep. 194. *483 Chap. 1.] Of the Liability of Partners, 483 should be against the express stipulation of the articles of partnership : they must also bear the loss happening by the fraudulent conduct of their partner in the disposition of goods purchased. Thus, in the case of Bond v. Gibson and Jcphson(p), which was an action of assumpsit for goods sold and delivered. It appeared, that while the defendants were carrying on the trade of harness- makers together, Jephson bought of the plaintiff a great number of bits to be made up into bridles, which he carried away himself; but that instead of bringing them to the shop of himself and his copartner, he immediately pawned them to raise money for his own use. For the defendant Gibson it was con- tended, that this could not be considered a partnership debt, as the goods had not been bought on the partnership account, and the credit appeared to have been given to Jephson only : it was admitted, that the ease would have been different, had the goods once been mixed with the partnership stock, or if proof had been given of former dealings upon credit between the plaintiff and the defendants. But Lord Ellcnborough Ch. J. said, " Unless the seller is guilty of collusion, a sale to one partner is a sale to the partnership, with what- ever view the goods may be bought, and to whatever purposes they may be applied. I will take it that Jephson here meant *to cheat his co-partners ; still the seller is not on that account to suffer. He is innocent, and he had a right to suppose that this individual acted for the partnership." The plaintiff accordingly obtained a verdict for the full amount of the goods. So, if two persons in partnership for the sale of horses, agree between themselves never to warrant any horse ; yet though this be their course of business, if upon the sale of a horse, the property of the partnership, one of them give a warranty, the other will be bound by it.( the annuity in question was purchased of Mr. Joshua Rowe, and after having been paid for about two years became in arrear. Howden died the 7th of March 1813. By a letter dated the 10th April, 1813, signed Marsh and Creed, in an- swer to an application made on the part of Mr. Howden'' s representatives, they stated in substance as follows : — " He has two annuities, one yielding a clear 400/. per annum, payable quarterly, exclusive of the amount of the annual pre- mium on the insurance of the life of Mr. Rowe, the grantor, at the Equitable Insurance Office, and the purchase-money for which was 4,000/. in place of 5,000/., which we informed Mr. Howden we should give for it. This is guar- anteed by our house on a commission, and is not determinable for three years." Neither of the *above letters were entered in Marsh and Creed's letter-book, nor did it appear that Marsh had personally any knowledge of the guarantee. It was proved, that it was no part of the ordinary business of navy agents to deal in annuities. The charge of 5 per cent, commission had never been made bv only 2 1-2 per cent. The usual commission of navy agents, had been charged in the different accounts transmitted by Marsh and Creed. In those accounts, however, there were found several items referring to the sale of the stock and the receipt of the annuity. Under these circumstances it was contended, first, that this guarantee by Creed could not bind his partner Marsh: But the Court held that it did: and that the verdict, which had been given for the plaintiff, was right. Abbott Ch. J. said, « The material question which has been raised upon the facts proved at the trial is certainly most im- portant and extensive in its consequences, namely, whether this defendant shall be held to be bound by the guarantee given without his knowledge, by his part- ner, Creed, and if the verdict of the jury finding him to be so "bound, be not sustainable, it will be very dangerous hereafter to deal with a partner- ship ; for the business in each department of a firm is generally transacted by one partner only. It has undoubtedly been held, that in a matter wholly *486 486 Of Partnership Contracts, and [Part III. unconnected with the partnership, one partner cannot bind the others. But the true construction of the rule is this, that the act and assurance of one partner, made with reference to business transacted by the firm, will bind all the partners. In this case the proper business of Marsh and Creed was, to re- ceive the money due from the navy board to their customers, and their divi- dends in the public funds ; upon which business they charged Howden with a commission of 1\ percent. It was no part of their ordinary business to guaran- tee annuities, or to lay out the money of their customers in the purchase of them. Under these circumstances, the original proposal was made by Creed, in answer to which the joint power of attorney was transmitted to Marsh and Creed, under which the stock was afterwards sold. Now that sale must have appeared in the partnership books ; and if that fact were doubtful, it is proved by the balance stated in the accounts transmitted by the partnership ; that sale, therefore, and the fact that the proceeds had been laid out in the purchase of an annuity, either were actually known, or ought to have been known, by Marsh. Now, if that whole transaction was known to him, the guarantee which is con- nected with it becomes, in point of law, an assurance made by one partner with reference to business transacted by both ; and according to the rule pre- viously stated, it will bind both." But if a member of a partnership firm have separate dealings with a house of trade ; and as a security for such dealings, give the guarantee of the firm with- out their privity, it shall not bind the firm. Thus, in *the case of Hope v. Cust,(v) where it appeared that Mr. Fordyce who traded very largely in his separate capacity, as well as in the business of a banker, in partnership 'with others, having considerable dealings in his private capacity with Hope and Co. in Holland, did, for and in the names of himself and partners, give them a gen- eral guarantee for the money due from him in his separate capacity. Fordyce became a bankrupt, and afterwards all the partners became bankrupts. And a bill was filed in the Court of Chancery by Hope and Co. in order to have the benefit of this guarantee : upon which that court directed an issue to try the validity of it. Lord Mansfield, in summing up the evidence to the jury, said, " There is no doubt but that the act of every single partner in a transaction re- lating to the partnership binds all the others. If one give a letter of credit or guarantee in the name of all the partners it binds all. But there is no general rule which may not be infected by covin, or such gross negligence as may amount to, or be equivalent to covin ; for covin is defined to be a contrivance between two, to defraud or cheat a third. Therefore the whole will turn on this, whether the taking the guarantee from Fordyce himself in his own hand- writing, without consulting the other partners, or having their privity, is not such gross negligence in the Hopes as will amount to a fraud or covin. For- dyce was acting in two several capacities, having transactions in his own name only, for his own separate benefit, and in the names of the partnership for his (V) Sittings at Guildhall after Mich. Term. 1774. coram Lord Mansfield Ch, J. cited by Laurence, Just, in 1 East Rep. 53. *487 Chap.l.] Of the Liability of Partners. 487 own benefit. This case comes out of Chancery, where an affidavit or answer of all parties might have been had if necessary ; but none such has been pro- duced, and therefore it must be taken that the partners knew nothing of it, and had no profit by it, or privity in the transaction. Another fact to be granted is, that as between Hope and Co. and Gurnal and Co., and Fordyce, the whole transactions are avowedly with Fordycc only in his separate capacity. The next fact is the correspondence in 1770, preceding the second guarantee. It is clear, that Fordycc's deposits and interests in the funds were both doubted, and then the Hopes tried to make a scheme to get a second security without shock- ing him, by suggesting there was a new partner. The first guarantee was giv- en in 1764, and that never had been called in, and still existed. There was then no occasion for a new one : for the change of a partner, and taking in a new one, would not destroy a former guarantee. The scheme was to get se- curity for debts not well secured, the goodness of which was doubted ; and they therefore get this from Fordyce alone, clandestinely, without the knowledge of his partners. If the fact be clear that Hbpe and Co., and Gurnal and Co., knew that this was done to *cheat the partners of Fordyce, there is no question in the cause. But it is manifest that they trusted to it as binding on the part- nership. Therefore this brings it to the second question, whether it be not a gross negligence ; especially as they knew at the time that Fordyce was acting in his separate capacity ; and this security was intended to indemnify them against his separate debts. Verdict for the defendant. Lord Mansfield after- wards, in his report to the Court of Chancery, on a motion being made for a new trial, said, three things were established to the satisfaction of himself and the jury. First, that the transactions between Hope and Co. and Fordyce were wholly on Fordycc's account. Secondly, that the partners of Fordycc derived no profit or benefit whatsoever from them. Thirdly, that they had no notice of the guarantee ; and consequently did not acquiesce in it. And Lord Mans- field, said, he left it to the jury, whether under these circumstances the taking of these guarantees were, in respect of the partners, a fair transaction or covin- ous, with sufficient notice to the plaintiffs of the injustice and breach of trust Fordycc was guilty of in giving them. "(152) 3. Of the Drawing, accepting, and Indorsing of bills of Exchange, &c. by one of several partners, either upon joint or separate Account.] — If one of several partners draw, accept, or indorse a bill or note, or enter into any other contract, not under seal, in the name of the partnership firm, for any thing relating to the joint concern, all the partners are bound by it, and liable to the person with whom the engagement is made, if the (152) Where one of two partners subscribed the partnership name to a note, as surety for a third person, without the authority or consent of the other partner, the latter is not bound by the act of the former ; and the burden of proving the liability of the other partner, lies on the holder of the note. Foot v. Sabin, 19 J. R. 154. So, the indorsement of a promissory note for the debt of a third person, by one of the members of a firm, with the knowledge of the creditor, is not binding on the firm, unless the other partner was previously consulted, or subsequently assented to the transaction. Laverty v. Burr, 1 Wend. 529. Sec The JVeio York Firemen Ins. Co. v. Bennett, 5 Conn. Rep. 574. *488 488 Of Partnership Contracts, and [Part IN. latter has acted bona fide. (153) The same liability may also, in some in- stances, be incurred upon a bill or other negotiable instrument given by one partner, in the name of the partnership firm, for his own separate debt or con- cern. (154) Thus, in the case of Swan and others v. Steele, Clerk, and Wood, (to) which was an action of assumpsit, wherein the plaintiffs declared, first, on a bill of exchange, dated 26th of August, 1803, drawn by D. Maitland on Campbell and Co. for 342/. payable to the order of the defendants, and one George Payne, deceased, three months after date, and indorsed by the defendants and Payne, under the firm of Wood and Payne to the plaintiffs ; and which bill Campbell and Co. had accepted. At the trial, the jury found a verdict for the plaintiff for 368Z. 5s. Ad., subject to the opinion of the Court on the following case : " Wood and Payne, mentioned in the pleadings, were wholesale grocers in Liverpool, trading under the firm of Wood and Payne, from January 1802, until January 1804 ; with whom the defendant Steele became a partner in May 1802, and so continued till January 1804, in the business of buying and and selling cotton ; which business was also carried on under the same firm of Wood and Payne, and at their counting house ; but Steele was never interested in the grocery business. Steele took no active part in the cotton concern ; nor *was it known to the world or to the plaintiffs that he was a partner. The plaintiffs sold to Wood and Payne, as grocers, a quantity of sugar, for which they gave their acceptance in the firm of Wood and Payne at four months, due the 11th of October, 1803; and not being able to provide for it when due, Wood and Payne on the 8th of October, 1803, delivered to the plaintiffs the bill mentioned in the declaration due the 29th of November, with others, to pro- vide for that acceptance ; and the bill was indorsed by either Wood or Payne, in the firm of Wood and Payne, without the actual knowledge of Steele, as all other bills in the cotton concern were. The said bill had been paid to Wood and Payne, as cotton dealers by the drawer thereof for cotton sold to him, in which Steele was, as aforesaid, interested ; and the name '' D. Maitland'''' thereto subscribed as the drawer, was the handwriting of D. Maitland of Wi- gan, to whom the cotton was sold. The said bill has been dishonoured, of which Wood and Payne had due notice. Wood and Payne became bankrupts on the 16th January, 1804, and the effects of the cotton concern were insuffi- cient to discharge its debts ; and Steele, when he should have discharged those debts, would have been a creditor of the concern. The question for the opin- ion of the Court was, whether the plaintiffs were entitled to recover ? If they were, then the verdict was to stand ; otherwise, a verdict was to be entered for the defendant Steele." The Court determined, that the plaintiffs were entitled to recover. And Lord Ellenborough Ch. J. said : " It would be a strange and (w) 7 East, 210. (153) See Le Roy, Bayard c§- Co. v. Johnson, 2 Peters, 186. (154) It is a general rule, that one partner cannot bind the firm for the payment of hi3 own private debt. Baird v. Cochran, 4 Serg. &. Rawle, 397. *489 Chap. 1.] Of the Liability of Partners. 489 novel doctrine to hold it necessary for a person receiving a bill of exchange indorsed by one of several partners, to apply to each of the other partners to know whether he assented to such indorsement ; or otherwise that it should be void. There is no doubt that in the absence of all fraud on the part of the indorsee, such indorsement would bind all the partners. There may be part- nerships where none of the existing partners have their names in the firm. Third persons may not know who they are ; and yet they are all bound by the acts of any of the partners in the name or firm of the partnership. The case is too clear for argument, and I should not have permitted the point to be reserved, if I had not understood at the trial that there were some other facts in the case which might raise a doubt. The distinction is well settled, that if a creditor of one of the partners collude with him to take payment or security for his individual debt out of the partnership funds, knowing at the time that it is without the consent of the other partner, it is fraudulent and void ; but if taken bona fide without such knowledge at the time, no subsequently acquired knowledge of the misconduct of the partner in giving such security can disaf- firm the act. Now here the three persons were trading under the firm of Wood and Payne, and in the course of their dealings as partners received the bill in question ; *and it was competent to either of them by his indorsement, in the name of the firm, to pass their interest in the bill : and the plaintiffs, igno- rant of any fraud at the time, take it by such indorsement from one of the part- ners. Then if the interest of the plaintiffs in the bill were once well vested, no subsequent knowledge that such indorsement was made without the consent of one of the partners will devest it. And it would be highly inconvenient that it should ; because if the plaintiffs had been apprised at the time, that the partner who indorsed the bill had no authority to do so, they might have obtained some other security for their demand. But in the case of Wells v. Masterman and others, (y) which was an action of assumpsit on two bills of exchange, drawn by the plaintiff on the defendants, by the style of James Masterman and Co. dated the 30th of January, 1798 ; accepted by James Masterman only, without the words and Co. The partner- ship commenced in 1795. James Masterman carried on a separate trade on his own account, and had had dealings with the plaintiff before his partnership, who had also dealings with the firm. The defence set up to this action was, that the bills were drawn on the separate account, and for the separate con- cern of James Masterman only ; and that the acceptance in question did not bind the partnership, so that an action could be maintained against them, as the acceptors of the bills in question ; and another bill of exchange was produced, drawn in the same style and manner as those in question, but accepted by Masterman and Co. which had been paid. Lord Kcnyon Ch. J. said : " When a man enters into a partnership, he certainly commits his dearest rights to the discretion of every one who form a part of that partnership in which he en- (/i) 2 Esp. Rep. 731. *490 490 Of Partnership Co?itracts, and [Part III. gages; and if a bill is drawn upon the partnership in their usual style and firm, and it is accepted by one of the partners, it certainly binds the partnership to the payment of it: but if a man who has dealings with one partner only, and he draws a bill on the partnership on account of those dealings, he is guilty of a fraud, and in his hands the acceptance made by that partner would be void ; but it would be otherwise in the case of a bona fide indorsee. In his hands, the acceptance of one of the partners binds the partnership, as he is ignorant of the circumstances under which it was created, and takes it on the credit of the partnership name." So, where two partners contract a debt prior to the admission of a third part- ner, for which the creditor, at the instance of the two, afterwards draws a bill upon the three in the name of the partnership firm ; and the bill is accept- ed by the two, without the privity of the third, such creditor cannot recover upon it : though if such bill gets bona fide into the hands of an indorsee, all the partners are liable to him and may be *sued thereon. This was settled in the case of Shirreff and others v. Wilks, (z) which was an action upon the case upon a bill of exchange for 78Z. dated the 5th of November, 1796, payable to the order of the plaintiffs two months after date, which was stated in the decla- ration to have been drawn by them on the said G. Bishop, W. Robson, and J. Wilks, by the name and description of Messrs. George Bishop and Company, and to have been accepted by them. The plaintiffs in October, 1795, sold and delivered a quantity of porter to Bishop and Wilks, who were then partners, which porter was entered in the plaintiffs' books in the names of Wilks and Bishop ; and the same was afterwards shipped for the West Indies, and the defendant Wilks paid the shipping charges. Robson became a partner with Bishop and Wilks in April, 1796, and continued so till the 8th of November following, when their partnership was dissolved. The defendant iVilks pre- vious to the dissolution of the partnership sent to the plaintiffs a memorandum or calculation in his own handwriting of certain deductions claimed by him in respect of the porter. The balance due to the plaintiffs in respect of the porter was 78/. for which the plaintiffs drew upon the defendants the bill mentioned in the declaration, which bill was accepted by Bishop in the partnership firm of all the defendants, by his subscribing thereon " Accepted G. B. and Co." The Court were of opinion that the plaintiffs were not entitled to recover. And Lord Kenyon Ch. J. said : " This is an action brought against three per- sons, Wilks, Bishop, and Robson, as acceptors of a bill of exchange. It appears that the acceptance was in fact made by Bishop alone in the name of the firm. The consideration for this bill was some porter which had been sold by the plaintiffs to Wilks and Bishop only, at a time when Robson had no concern with the house. Then the plaintiffs knowing this, drew the bill upon all the three partners, and knowingly take an acceptance from one of them to bind the other two, one of whom, Robson, had no concern with the matter, and was no (z) 1 East Rep. 48. »491 Chap. 1.] Of the Liability of Partners. 49 \ debtor of theirs ; no assent of his being found, and nothing stated to show that he had any knowledge of the transactions. It is hard enough for one partner in any case, to be able to bind another without his knowledge or consent but it would be carrying the liability of partners for each other's acts to a most unjust extent, if we suffered a new partner to be bound in this manner for an old debt incurred by other persons. The plaintiffs therefore ought not in justice to have taken this security by which they were to bind one who was not their debt- or : the transaction is fraudulent upon the face of it. It is no answer to say that one partner has a general power of binding the rest. So an executor has power to bind the assets of the testator, and to sell and dispose of his effects • and the *law reposes a confidence in him, that he will apply the proceeds in pay- ment of the testator's debts and legacies : but if fraud could be proved in any particular transaction between the executor and a purchaser, such a sale would be void. Nothing can be better established, as a general rule, than that the law will set aside every contract which is fraudulent. Such is the case here. Wilks and Bishop owed money to the plaintiffs ; these latter, knowing that Robson had no concern with the matter, fraudulently receive from Wilks and Bishop a security by which Robson is to be bound : this therefore cannot be enforced in this action." So, in the case of Arden v. Sharpc and Gilson,(a) which was an action of assumpsit by the indorsee of a bill drawn by R. Cowan on one Rae at two months after date, in favour of R. Packer for 60/. dated the 4th of March, 1796. The case as proved, on the part of the plaintiff, was, that on the 1st of March, the day on which the bill bore date, Gilson, one of the defendants, brought the bill in question to the plaintiff, and requested him to discount it ; the plaintiff said he could not do it himself, upon which the defendant Gilson answered, he could get it done for him, but wished the business to be kept a secret from his partner Mr. Sharpe ; to which the plaintiff assented and took his bill. The wit- ness then proved, that the indorsement " Sharpe and Gilson" was in the hand- writing of Gilson. Lord Kcnyon Ch. J. said : " This action, under the present proof, cannot be supported ; the bill is indorsed by one partner in the name of the firm ; one partner certainly may indorse a bill in the partnership name, and if it goes into the world, and gets into the hands of a bona fide holder, who takes it on the credit of the partnership name, and is ignorant of the circumstan- ces, though in fact the bill was first discounted for that one partner's own use • in such case the partnership is liable ; but the case is different where the party who brings the action was himself the person who took the bill with the indorse- ment by one partner only, and was informed that the transaction was to be con- cealed from the other ; he cannot sue the partnership, the transaction indicates that the money was for the partner's own use, and not raised on the partnership account, therefore shall not be allowed to resort to the security of the partner- («) 2 Enp. R*p. 524. 60 M9 2 492 Of Partnership Contracts, and [Part 111. ship, to whom in the original transaction he neither looked or trusted." The plaintiff was accordingly nonsuited. So, an authority given to one partner, on the dissolution of a partnership, to receive all debts owing to, and to pay those owing from the late partnership, does not authorize him to indorse a bill of exchange in the name of the part- nership, though drawn by him in that name, and accepted by a- debtor of the partnership after the dissolution. This point *was settled in the case of Abel and another v. Sutton, (b) which was an action brought by the plaintiffs, as indorsees, against the defendant, as surviving partner of one Poyntcr, upon a promissory note for 685/. lis. dated the 27th of May, 1799, and payable six months after date, drawn by Messrs. Horton and Co. in favour of Sutton and Co. and indorsed in the partnership name of Sutton and Co. to the plaintiffs. The defendant and Poynter had carried on business in partnership, under the firm of James Sutton and Co. On the 31st of May, 1799, the partnership had been dissolved, and notice of the dissolution published in the London Ga- zette o£ the 1st of June : and the defence was, that the note in question was an accommodation one, created after the dissolution of the partnership, though it bore date before ; and the partnership name put on by Poynter alone, without authority from the defendant; or that even if it existed prior to the dissolution, it had not been put into circulation until after. The indorsement, " James Sutton and Co." was in the handwriting of Poyntcr, and it appeared clearly that it had not been made till the 28th of August, nearly three months after the dissolution of the partnership : but it was stated, and admitted to be the custom of trade, that when bills or notes had a long time to run, it was not usual to put them into circulation until near the time they became due, or when they had about the usual time of discountable securities to run. For the plaintiffs it was contended, that where a partnership had been dissolv- ed, and one of the partners had authority given him to settle and liquidate the partnership accounts, and due notice to that effect was given (as in the present case in the same advertisement in the Gazette which contained notice of the dissolution of the partnership) such partner had a right to use the partnership name in negotiating bills or securities which existed previous to the dissolution, until the accounts were liquidated : and Mr. Barnwall, one of the special jury- men, said, it was very customary for one partner to use the partnership name long after it was notoriously dissolved, in negotiating the partnership securi- ties, for the purpose of liquidating the partnership accounts, and wi nding up the concern ; and observed, that many bills could no. be received if the part- nership name was not upon them. For the defendant it was argued, that as the declaration stated Sutton and Co. indorsed the note, it was necessary to show that the partnership existed at the time the note in question was indorsed ; and he cited Dixon v. Evans, 6 Term Rep. 57. in support of this position. Lord Kenyan Ch. J. said, " If a fair bill existed at the time of the partnership, (b) 3 Esp. Rep. 108. Ses also KUgour v. Finlyson, and others, 1 H. Bl. 155. S. P. *493 Chap. 1.] Of the Liability of Partners. 493 but is not put into circulation until after the dissolution, all the partners must join in making it negotiable. The moment the partnership ceases, the part- ners become distinct persons ; they are tenants in *common of the partnership ■ property undisposed of from that period : and if they send any securities which did belong to the partnership into the world, after such dissolution, all must join in doing so. I even doubt much if an indorsement was actually made on a bill or note before the dissolution, but the bill or note was not sent into the world until afterwards, that such indorsement would be valid." It was then given in evidence that Poynler had received money for securi- ties belonging to the partnership, which had been thrown into the general fund, and had been applied in liquidation of the partnership debts after the dissolu- tion. The counsel for the plaintiffs, in reply, stated two positions in support of the plaintiffs claim ; 1st, that if bills existed before the dissolution of the partnership, and one of the partners had authority to settle and liquidate the partnership accounts, such partners had a right to put the partnership name upon such bills ; and that a bona fide holder of such bill would have a right to resort to all the partners: 2dly, that if he put into circulation bills in the partner- ship names, upon which money had been raised, which was applied in liquidation of the partnership debts, it was money had and received to the use of all the part- ners, and all would be liable. Lord Kenyon, however, (after observing that there was no evidence to show that the money raised upon the bill in question had been so applied) expressed his most decided dissent to both positions : he said, " it could never be allowed that any one might make another his debtor against his will : by that means, a man's greatest enemy, by paying his debts, might make himself his creditor. The most mischievous and distressing conse- quences might ensue from such a doctrine. He had often ruled that it could not be done ; and he was still of the same opinion. With respect to the other position, his Lordship said, when a man takes a partner, he takes him for bet- ter, for worse ; he reposes confidence enough, and places himself sufficiently in the power of his partner during the partnership. To contend that this lia- bility to be bound by the acts of his partner, extends to a time subsequent to the dissolution, was, in his mind, a most monstrous proposition. A man in that case could never know when he was to be at peace, and retired from all concerns of the partnership, if one partner was to have the power of binding another long after the dissolution of the partnership. I am of opinion, said his Lordship, if a bill is sent into circulation after the dissolution of a partnership, that, beyond all controversy, all the partners must join in the indorsement ; and one, by putting the partnership name, cannot bind the rest." The jury accord- ingly found a verdict for the defendant. Where two partners give a joint bill of exchange for a partnership demand, which is not paid when due, and the holder takes a separate *bill, or security, of one of the partners, without the knowledge of the other, the latter is there- by discharged. (c) (c) 4 Esp. Rep. 01. 5 Esp. Rep. 122. *494 -195 495 Of Partnership Contracts, and [Part 111. Upon a review of these cases the principle laid down is clear, namely, that in mercantile transactions, in drawing, accepting, and indorsing of a bill ol exchange and other negotiable instruments, one partner may bind all the mem- bers of the firm. And therefore if a bill is drawn upon the partnership in their usu- al style and firm, and it is accepted by one of the partners, it certainly binds the partnership to the payment of it. In the absence of fraud, an indorsement, by one partner, in the name of a partnership binds all the firm. And it is equally binding upon the partnership whether the consideration of the bill, &c. be for the joint or separate account of the partners, provided the person who re- ceives the bill acts bona fide. (155) For in the case eoc parte Bonbonus,(d) Lord Eldon, Chancellor, in speaking of the principle upon which the petition in that case was presented, says, "This petition is presented here upon a principle which it is very difficult to maintain ; that if a partner for his own accommo- dation pledges the partnership, as the money comes to the account of the single partner only, the partnership is not bound. I cannot accede to that* I aoree, if it is manifest to the persons advancing the money, that it is upon the separate account, and so that it is against good faith that he should pledge the partnership, then they should show, that he had authority to bind the partnership. But if it is in the ordinary course of commercial transac- tions, as upon discount, it would be monstrous to hold that a man borrowing money upon a bill of exchange, pledging the partnership without any know- ledge in the bankers, that it is a separate transaction, merely because that money is all carried into the books of the individual, therefore the partnership should not be bound. No case has gone that length. It was doubted whether Hope v. Cust,(e) was not carried too far; yet that does not reach this transaction, nor Shirreff v. Wilks,(f) as to which I agree with Lord Kcnyon ; that as partners, whether they expressly provide against it in their articles, (as they generally do, though unnecessarily,) or not, do not act with good faith, when pledging the partnership property for the debt of the individual, so it is a fraud in the person taking that pledge for his separate debt. The question of fact, wheth- er this was fair matter of discount, or being an antecedent separate debt of Rogers, the discount was obtained merely for the purpose of paying that debt by the application of the partnership funds, which question is brought forward by the affidavits, though not by the petition, must lead to farther exam- ination. If the partners are privy, and silent, permitting him to go on dealing in this way, without giving notice, the question will be, whether subsequent approbation is not, for this purpose, *equivalent to previous consent. In Fordyce's case,(g") Lord Thurlow and the judges had a great deal of conversation upon the law ; and they doubted upon the danger of placing every man with whom (d) 8 Ves. 540. (/) Ante, 491. (e) Ante, 486. (g) Ante, 486. (155) See The New York Firemen Ins. Co. v. Bennett, 5 Conn. Rep. 574. *496 Chap. 1.] Of the Liability of Partners. 496 the paper of a partnership is pledged, at the mercy of one of the partners, with reference to the account he may afterwards give of the transaction. There is no doubt, now the law has taken this course, that if, under the circumstances, the party taking the paper can be considered as being advertised in the nature of the transaction, that it was not intended to be a partnership proceeding ; as if it was for an antecedent debt, prima facie, it will not bind them ; but it will if you can show previous authority, or subsequent approbation; a strong case of subsequent approbation raising an inference of previous positive authority. In many cases of partnership, and different private concerns, it is frequently ne- cessary for the salvation of the partnership that the private demand of one part- ner should be satisfied at the moment ; for the ruin of one partner would spread to the others ; who would rather let him liberate himself by dealing with the firm. The nature of the subsequent transactions, therefore, must be looked to as well as at the time." And in Ridley v. Taylor, (h) it was determined, that if one partner draw or indorse a bill in the partnership firm, it will prima facie bind the firm, although passed by the one partner to a separate creditor in discharge of his own debt, unless there be evidence of covin between such separate debtor and creditor, or at least of the want of authority, either express or to be implied, in the debtor partner, to give the joint security of the firm for his separate debt. But it was held that no sufficient circumstance appeared in this case to raise any presump- tion adverse to the separate creditor, taking such joint security, in a case where the bill appeared to have been drawn in the name of the firm, to their own or- der, eighteen days before the delivery of it to the separate creditor, and to have been accepted and indorsed before such delivery, and to have been drawn for a larger amount than the particular debt ; and where, though the indorsement was in fact made by the hand of the debtor partner, yet it did not appear that that fact was known to the separate creditor at the time ; and this too in a case where direct evidence might have been given of the covin, or want of authori- ty, if it existed. For the action being brought by the separate creditor against the acceptor, either of the partners might have been called as a witness by the defendant, to disprove the authority of the debtor partner, to give the joint se- curity ; for though, if the separate creditor recovered against the acceptor, he would have his remedy over against the firm ; yet the innocent partner would have his remedy over against the other ; and the bankruptcy of the debtor part- ner in the meantime docs not *vary the question of competency. And Lord Ellenborough, Ch. J. said, " Prima facie one partner is bound by the in- dorsement of another in the partnership firm ; but that presumption may be cut down by showing collusion ; but the difltculty of the case is, that we have not the facts sufficiently before us to show that collusion. If this were distinctly the case of a pledging by one partner of a partnership security for his own separate debt, without the authority of the other partner ; or if there (h) 13 East Rep. 175. See also Henderson v. Wild, 2 Camp. 561. *497 497 Of Partnership Contracts, and [Part III. existed in this case evident covin between one partner and the holder of the partnership security, upon which the action is brought, in order to discharge the other partner without his knowledge or consent, either express or implied, for the private advantage of the parties to such covinous agreement, we should have no hesitation to pronounce a bill drawn and indorsed under such circum- stances, void in the hands of the covinous holders, upon the principle laid down in the case of Shirreffv. Wtlks.(i) But upon the facts stated, such does not distinctly appear to us to be the case ; nor does it appear that there was any such crassa negligentia on the part of the plaintiffs, in not inquiring whether Eu- bank, the one partner with whom they dealt, was authorised to dispose of this security (which had originally been partnership property) as his own, as to ren- der this transaction on that account fraudulent, and therefore void." But the authority of one partner to bind another by signing bills of exchange and promissory notes in their joint names is only an implied authority, and may be rebutted by express previous notice to the party taking such security from one of them, that the other would not be liable for it : and this, though it were represented to the holder by the partner signing such security, that the money advanced on it was raised for the purpose of being applied to the payment of partnership debts ; and though the greater part of it were, in fact, so applied. Nor can he recover against the other partner the amount of the sum so applied to the payment of the partnership debts against such notice. Thus, in the case of Lord Gallway v. Matthew & Smithson,(k) : where the plaintiff declared on a promissory note made by the defendants and Whitehouse deceased on the 16th December, 1805, payable sixty days after date to the plaintiff, or order, for 200Z. value received ; and also on the common money counts. It appeared on the trial, that the defendants and Whitehouse were partners in a brewery ; and on the 16th December, 1805, Matthew wrote to the plaintiff, alleging the miscon- duct of his partner Smithson, in consequence of which the creditors of the part- nership had insisted on the payment of their demands ; that there was a certain sum to pay to the excise in a few days, and no resource but to apply to friends, and therefore requesting of the plaintiff to lend him his acceptance for *200/. at two months, for which he would send him the promissory note of the firm, payable four days before the plaintiff's acceptance became due. In conse- quence of this the plaintiff agreed to lend his acceptance, and Matthew drew the note in question, which was signed by him for himself and his partners. Mat- thew immediately procured the plaintiff's acceptance to be discounted, and ap- plied 180/., of the money to the payment of the partnership debts, reserving the rest for himself. But the note in question not being paid when demand- ed of the defendants, the plaintiff, after renewing his acceptance to the holder, was ultimately obliged to pay it after Whitehoiise's death. And now Mat- thew having let judgment go by default, Smithson defended the action on (i) Ante, 491. (k) 10 East Rep. 264. See also Roolh v. Q,uin, 7 Price's Rep. 193. S. P. *49S Chap. 1] Of the Liability of Partners. 49S the ground that the plaintiff before lie took the note in question, had no- tice of an advertisement then recently published in a newspaper by Smith- son, wherein he warned all persons not to give credit to the defendant Matthew on his (Smithsoii's) account, and that he would no longer be liable for drafts drawn by the other partners on the partnership account. The court de- termined that the plaintiff could not recover, and a nonsuit was entered : and Lord Ellenborough Ch. J. said, " The general authority of one partner to draw bills or promissory notes to charge another is only an implied authority. And that implication was rebutted in this instance by the notice given by Smith- son who is now sought to be charged, which reached the plaintiff, warning him that Matthew had no such authority. It is not essential to a partnership that one partner should have power to draw bills and notes in the partnership firm to charge the others ; they may stipulate between themselves that it shall not be done ; and if a third person, having notice of this, will take such a security from one of the partners, he shall not sue the others upon it, in breach of such stipulation, nor in defiance of a notice previously given to him by one of them, that he will not be liable for any bill or note signed by the others." So where persons ar e partners in a particular and single transaction only, and not general partners, they are not liable even to a bona fide holder, on a bill issued by one of them in relation to a different concern. Thus, in the case of Williains v. Thomas, Hunter, and Latham, (I) where it appeared, that Messrs. Leake and List drew a bill for 1500?. in favour of the plaintiff, for goods fur- nished the ship Cecilia, in which the defendants were charged as acceptors. The defendants proved, that the acceptance was made by the defendant Latham on his own account. The defendants were partners in the ship Cecilia, of which the defendant Thomas, was captain, and had guaranteed Leake and List to se- cure to them the money for the outfit. Lord Ellenborough Ch. J. said, " Leake and List could give no better title to the holder than they had themselves ; *they could not draw for a general account, but for the account of the ship on- ly ; they could not bind Thomas by drawing a bill upon him, and the other de- fendants, for an account unconnected with the ship." The plaintiff was accord- ingly nonsuited. So, in the case of a discount of a bill of exchange it was determined, in the case of Emly v. Lye,(m) that where one of two partners drew bills of exchange in his own name, which he procured to be discounted with a banker, through the medium of the same agent who procured the discount of other bills drawn in the partnership firm with the same banker ; the latter has no remedy against the partnership, either upon the bills so drawn by the single partner, or for mo- ney had and received through the medium of such bills ; though the proceeds were carried to the partnership account ; the money being advanced solely on the security of the parties whose names were on the bills by way of discount, and not by way of loan to the partnership ; though the banker conceived at the time that all the bills were drawn on the partnership account. (0 6 Esp. Rep. 18. (m) 15 East, 7. *499 499 Of Partnership Co?ilracts, and [Part III. So, an act of bankruptcy committed by one of several partners, however se- cret, ipso facto determines his power to make use of the name of the firm ; and no person can derive any benefit or right of action against the firm, upon any bill or note negotiated by the bankrupt partner. Thus, in the case of Thoma- son v. Frere and others, (n) in which it appeared, that Thomason, Underhill, and Guest, were partners in trade at Birmingham, and being indebted to the defendants to the amount of 1800/. ; and creditors upon Gamble and Co. for 1450/. Underhill and Guest, on the 11th October 1807, without the know- ledge of Thomason, who was then abroad, indorsed to the defendants a bill drawn by Thomason, Underhill, and Guest, upon, and accepted by the agent of Gamble and Co. for this 1450/. Underhill and Guest had on the 7th of Octo- ber, 1S07, committed acts of bankruptcy, upon which separate commissions is- sued on the 19th. The bill for 1450/. became due on the 6th of December, and was then paid. And to recover this money, the present action was brought by Thomason and the assignees of Underhill and Guest, The house of Tho- mason, Underhill, and Guest, was still indebted to the defendants beyond the amount of the sum now sought to be recovered. The plaintiffs were nonsuit- ed : bu;, on a rule Nisi for a new trial, the Court held, that the indorsement having been made after an act of bankruptcy, though before the issuing of the commission, and though for the purpose of paying a partnership debt, was in- valid ; and they inclined to think that this action being brought to recover the money received on the bill, which had been thus wrongfully indorsed, the de- fendants had no right to set off *their demand upon the firm against this claim by Thomason and the assignees, and therefore made the rule absolute. So, after an actual dissolution of a partnership duly notified in the Gazette, one of the parties accepted a bill in the name of the partnership firm, drawn after the dissolution, but dated before it ; it was held, that an indorsee who took the bill without notice of the dissolution, could not inforce the bill against the other members of the firm, and a distinction was taken by the Court between such case, and the case of goods supplied after the dissolution of the partnership, but without notice, by a person who had been in the habit of supplying goods to the firm.(o) So, the death of a party is in general a revocation of all express and implied authorities given by him. But where A., being member of a partnership con- sisting of several individuals, drew a bill of exchange in blank in the partner- ship firm, payable to their order, and having likewise indorsed it in the part- nership firm delivered it to a clerk to be filled up for the use of the partner- ship, as the exigencies of business might require, according to a course of dealing in other instances ; and after A.'s death, and the surviving partners had assumed a new firm, the clerk filled up the bill, inserting a date prior to A.'s death, and sent it into circulation ; it was held, that the surviving partners were (n) 10 East Rep. 418. See Ramsbottom v. (o) Wrightson v. Pullan, 1 Stark. 375. Cater, 1 Stark. 228. ♦500 Chap. ].] Of the Liability of Partners* 500 liable as drawers of the bill to a bona fide indorsee for value, although no part of the value came to their hands, (p) 4. Of borrowing Money, &c] — Money lent to one partner, whilst he is engaged in the partnership business, in order to defray certain expences of tra- velling, shall be deemed a partnership debt, and recoverable against all the partners. Thus, in the case of Rothwell v. Humphreys and Howell,(q) which was an action of assumpsit for money lent. The defendants were partners, carrying on the business of linen-drapers in London; the plaintiff Was a fus- tian manufacturer at Manchester. Howell, one of the defendants, had gone down to Manchester to purchase goods in the way of his trade, and had, in fact, purchased from the plaintiff to the amount of 500/. Being about to return, he borrowed 10/. from the plaintiff to defray his expences to London; and having drawn a bill on the house in London for the amount of the goods, he included in it the 10Z. so borrowed, and the bill was drawn for 510/. Before the arrival of the goods in London, Humphreys and Howell, the defendants, became insol- vent ; and the plaintiffs stopped the goods in transitu ; so that the bill was never presented, and the action was brought to recover the 10/. lent only. The defence relied upon was, that the action was brought against both part- ners for a loan of money admitted by the evidence to have been made to one of them, and which therefore could not be supported. But Lord Kenyon Ch. J. said, " That *though the loan of money was to one of the partners, it was lent to him while employed in the partnership business, and on its account; that as such it was competent to him to bind the partnership to the payment of a debt so contract- ed, and which, in fact, he had done, by including the money lent in the same bill with that for goods sold, clearly on the partnership account." A verdict was accordingly found for the plaintiff. It has also been held, that if a member of a firm is sent abroad to manage the business of the firm and to procure homeward consignments, for which he is to pay by the proceeds of consign- ments, from England, and by money raised upon bills drawn by him upon the firm, and he act in pursuance of such directions, the firm is liable for mon- ey advanced upon such bills, (r) But where several persons agree to form a partnership, and that each shall contribute a certain share of the capital ; and any of the persons borrow or purchase his share, which is by him after- wards brought into the common stock, the liability for payment to the lender or vendor is not joint, (s) (156) 5. Of the Misapplication of Money by one of several Partners.] — If one of several partners receiving money or goods of a third person, in the usual course of business, on the partnership account, in order to be applied to a particular purpose, wrongfully misapplies such money or goods to his (») Usher v. Dauncey, 4 Campb. 97. (s) Vide Saville v. Robertson, 4 Term (q) I Esp. Rep. 406. Rep. 720. (r) Denton v. Rodie, 3 Campb. 496. (156) See Jaques v. Marquand, 6 Cowen, 497. 61 *30l 501 Of Partnership Contracts, and [Part III. own private use, all the partners are answerable. Thus, in the case against Layfield and others, (t) which was an action on the case for money had and received to the plaintiff's use, it appeared, upon evidence, that Layfield and the other defendants were bankers and partners, and that the plaintiff had given Layfield 20.?. for which he received a ticket in the double exchange lottery, and Layfield undertook to pay what benefit should happen thereupon ; that the ticket came up a 40/. benefit ; and for that money the action was brought. It was objected for the defendants, that the action was brought against Layfield and his partners ; whereas it did not appear that any of them had undertaken to be trustees in the lottery, except Layfield, and therefore he only ought to be charged, and not his partners. But Holt Ch. J. answered, that it appeared they were partners in their trade, and goldsmiths, and the adventurers put their money in upon the credit of several goldsmiths, that had undertaken to pay the benefits ; and it should be presumed the act of Layfield was the act of the other, and should bind them, unless they could show a disclaimer, and a refusal to be concerned in it. Accordingly the plaintiff had a verdict for 40/. So, if two persons are in partnership as atlornies and conveyancers, and one of them receives money to be laid out on mortgage, but misapplies it, the other is liable for the amount. This was determined in the case *of Willet v Cham. bers,(u) which was an action of asswnpsit for money had and received to the plaintiff's use, brought against the defendant, as surviving partner of one Dad- ley. At the trial a verdict was found for the plaintiff, damages 480/. : and upon a rule to show cause why a new trial should not be granted, the facts appeared to be as follow : that, prior to any partnership between the defendant and Dadley, who was an attorney and conveyancer, at Coventry, the latter, in the year 1771, received of a Mr. Bindley the sum of 350/., to be laid out on a real security. Dadley accordingly furnished him with a mortgage from a Mr. Hughes to that amount ; which, as it afterwards appeared, Dadley had forged. At Midsummer, 1776, Dadley and Chambers entered into partner- ship ; shortly after which Bindley wanted to call in his money. The pretend- ed mortgagor was supposed at the same time to want a further sum of 150/., which added to the original mortgage money, made together the sum of 500/. The plaintiff, Willet, was ready to advance this sum ; and, in consideration of his doing so, an assignment was made to him of the pretended mortgage be- fore made to Bindley, as to 180/. part of this sum of 500/. Willet paid it into Dadley^s office to Chambers, who gave the following receipt for it : " Re- ceived of Mr. Benjamin Willet, the sum of 180/., for which I promise to ac- count to him on demand. Chambers.' 1 '' Dadley was not at home when this sum was paid. Some time after, the plaintiff called at the office to pay 300/. more, part of the remaining 320/. due. Dadley being then at home, Willet paid the money to him ; and in return, Dadley gave him the following receipt : " Received on account of Mr. Benja- (t) 1 Salk. 292. Holt's Rep. 434. S. C. («) Cowp. 814. *502 Chap. 1.] Of the Liability of Partners. 502 min Willct, 300/. the remainder of the money to be paid, being 20/. Dudley." It was admitted that the defendant, Chambers, was in no respect privy to the forgery ; and that no procuration money was paid either to Chambers or Dad- ley. But the Court refused the rule, and determined this to be a partnership transaction, and that the defendant was answerable for the act of his part- ner. So, where one of several partners receives the amount, of a parcel of goods sold by him to a purchaser, and afterwards applies the purchase money to his own private use, and the goods are not delivered, all the firm are liable ; or the purchaser may sue that one alone at his election.(u) So, where one of two partners, being a trustee, applied trust money to the use of their joint-trade with the privity of the other partner ; and they after- wards separated, and by agreement the partnership effects were assigned over to the first partner, who took upon himself the payment of the joint-debts ; this was held to be no payment in discharge of the other partner, but that both were liable to make good the trust-money. (t») *6. Of the Effect of Smuggling by One of several Partners.] — An action cannot be maintained by several partners for goods sold by one of them living in Guernsey, and packed by him in a particular manner, for the pur- pose of smuggling, though the other partners, who resided in England, knew nothing of the sale ; for it is a contract by subjects of this country, made in contravention of the laws : and the Court said that the case must be considered in the same light as if all the parties lived in Eng- land, (x) 7. Of the Liability of all the Partners of a firm for Representa- tions and Declarations made by One of them.] — If one of several part- ners falsely represent to a customer of the firm, that goods, which had been sent to them for sale, had been actually sold at a profit, and had accounted to the employer for part of the proceeds, all the members are liable to pay the residue of the proceeds. Thus, where A. had employed B. and C, who were partners as wine and spirit merchants, to purchase wine and sell the same upon commission. ; C. the managing partner, represented that he had made the purchases, and that he had sold a part of the wines so purchased at a profit ; the proceeds of such supposed sales he paid to A. and rendered accounts, in which he stated the purchases to have been made at a certain rate per pipe. In fact C. had neither bought nor sold any wine. The transactions were wholly fictitious, but B. was wholly ignorant of that. Upon the whole account a larger sum had been repaid to A., as the proceeds of that part of the wine alleged to be resold, than he had advanced ; but the other part of the wine, which C. represented as having been purchased, was unaccounted for. Held, that B. was liable for the false representation of his partner ; and that (v) Hudson v. Robinson, 4 Maule & Scl. 475. Rep. 414. (w>) Smith v. Jameson, 5 Term. Rep. 601. (x) Biggs v. Lawrence, ante, 177. See also ex parte Watson, 2 Ves. &. Beam. *503 503 Of Partnership Contracts, and [Part III. A. was entitled to retain the money that had been paid to him upon these fic- titious transactions, as if they were real. Held also, the supposed purchases having been represented to have been made at a certain specified rate per pipe, that A. might maintain an action for money had and received to recover the specific sums advanced for the number of pipes of wine unaccounted for.(y)(157) But the declarations by one of two partners prior to the partnership, is not admissible evidence to charge both jointly. (z)( 158) 8. Of Executing Deeds, and Releasing Debts, &c] — One partner cannot bind his co-partner by deed or writing under seal, without an express authority from him by writing under seal.(a)(159) It has however, been de- (y) Rapp v. Latham, 2 Barn. & Aid. 795. (a) Harrison v. Jackson, 7 Term. Rep. (z) Catt v. Howard, 3 Stark. 23. 207. (157) A partnership is not liable for a fraud committed by one of the co-partners. Pierce v. Jackson, 6 Mass. Rep. 242. See Sherwood v. Marwick, 5 Greenl. 295. (158) The admission of one partner, after the dissolution of the partnership, either of an account, or of any fact, cannot be given in evidence to affect the rights of any other part- ner of the firm. Baker v. Stackpoole, 9 Cowen, 420. Hackley v. Patrick, 3 J. R, 536. Wal- den v. Sherburne, 15 J. R. 409. Hopkins v. Banks, 7 Cowen, 650. Shelton v. Cocke, 3 Munf. 191. But, as an exception to the preceding rule, such admission may be given in evidence to remove the bar of the statute of limitations. Hopkins v. Banks ; Shelton v. Cocke, ut su- pra. So, an acknowledgment, by one partner, previous to a dissolution, of a partnership debt, will have the effect to remove the operation of the statute. Smith v. Ludloxc, 6 J. R. 267. (159) See Clement v. Brush, 3 J. C. 180. Tuttlev. Eskridge, 2 Munf. 330. Buchannan v. Curry, 19 J. R. 137. Me Bride v. Hagan, 1 Wend. 326. Karthunsv. Ferrer, 1 Peters, 222. Tom v. Goodrich, 2 J. R. 213. Green v. Beals, 2 Caines, 254. Ludlow v. Simond, 2Caines C. E.l. In Mc Bridge v. Hagan, 1 Wend 334., Savage, Ch. J. says, " It seems to be well settled, that one partner cannot bind his copartner under seal. He may, indeed, discharge a co- partnership debt, under seal; but that authority arises not from any capacity to bind his copartner in a manner to impose an obligation upon him; but from the power which each partner has over the partnership property, and partnership debts." The distinction here taken, is founded in reason and general policy, and is supported by all the authorities. In Cle- ment v. Brush, ut supra, it was decided, that a sealed note given by the defendant, in the name of himself and partner, though the instrument was void as to the partner, it was valid against the defendant, and extinguished the partnership debt for which it was given. So, where one had become surety for a partnership debt, in a bond, with one of the firm, and having been compelled to pay the bond, brought his action against the firm for the mo- ney so paid ; it was held, that the bond extinguished the partnership debt, and converted the demand into an individual one ; and therefore, the plaintiff's only remedy was against his co-obligor. Tom v. Goodrich, 2 J. R. 213. But, where one of two partners executes a bond for the payment of duties on goods imported on the partnership account, with surety, and the surety advances money to his co-obligor to pay the bond, the surety may maintain an action against the firm for the money ^so advanced ; although, if he had taken up the bond himself, his remedy would have been against the co-obligor alone. Walden v. Sherburne, 15 J. R.409. So, a release of a partnership debt, by one partner, under seal, is binding on all the partners. Pierson v. Hooker, 3 J. R. 68. Bxdkley v. Dayton, 14 J. R. 387. And although one partner cannot bind his copartner, by bond or other writing, under seal, to abide the award of arbitrators ; yet, where an award is made pursuant to a submis- sion thus executed by one partner, who accepts the amount awarded in favour of the copart- nership, and indorses upon the award a receipt in full, this will bar the partnership claim ; for it operates as a release by one partner, or as an accord and satisfaction. Buchanan v. 'Curry, 19 J. R. 137. If one of two partners, without authority, execute a joint bond and warrant of attorney, in the names of both, they are void as to" the partner who did not sign them; and if judgment be entered thereon, it will not be vacated on application of him who execut- ed them, nor on the application of the other ; but the court will direct that the execution be not served on him, and that only the interest of the other partner in the joint funds shall be liable to satisfy the judgment. Green v. Beals, 3 Caines, 254. But where one of two partner* executes a bond, to which he subscribes the partnership name, and affixes one seal, Chap.l.] Of the Liability of Partners. 503 termined,(6) that a bill of sale executed by one partner, with the consent and in the presence of the other, is binding *upon both the partners. And so the release of debts by deed of composition, &c. is said to be an exception to the general rule.(c)(160) 3. OF A CHANGE OR DISSOLUTION OF A PARTNERSHIP : AND OF THE LIABILITY OF A RETIRING PARTNER EITHER FOR WANT OF PROP- ER NOTICE, OR BY SUFFERING HIS NAME TO BE USED, &c. Upon a change or dissolution of a partnership by agreement or otherwise between partners, it is the duty of the firm, in order to avoid future liability, to give notice, or send a circular of the fact, to ali persons with whom they may have had dealings ; for without such notice, or other proof of the knowledge of the fact, all the partners will remain liable to every person who had prior deal- ings with them, for all debts subsequently contracted by any of the firm carry- ing on the same business. (161) And a notice in the Gazette will not be suffi- (b) Ball v. Dunsterville, 4 Term. Rep. (c) Vide Hawkshcnc v. Parkins Swanst 313. 542. ne the other partner having previonsly read and approved the bond, consents that his copart- ner should execute it for both, and being in the room at the time of the execution, though not actually signed and scaled in his immediate presence ; held, that this was such an ex- ecution of the bond, as to make it the deed of both. Mackuy v. Bloodgood 9 J. R. 285. See Ludloio v. Simond, 2 Caines C.E. 1. (160) See Bruen v. Marquand, 17 J. R. 58. Each partner has full control over the part- rship property, with the power of disposing of it for partnership purposes : Thus, one partner may transfer or assign a chose in action, or any other partnership property, for the purpose of paying the partnership debts. Quiner v. The Marblehead Social Ins. Co. 10 Mass. Rep. 476. Lamb v. Durant, 12 Mass. Rep. 54. Harrison v. Sterry, 5 branch 289. Pierpont v. Graham, C. C. April, 1820. MS. Rep. Whart. Dig. 453. But, it seems, that the assignment cannot be made by an instrument under seal. Harrison v. Sterry, ut supra. But, in New-York, it has been decided, that a release of a partnership debt, under seal, by one partner, in the partnership name is binding upon all the partners. Pierson v. Hooker, 3 J. R. 68. See Bulkley v. Dayton, 14 J. R. 387. If one of two partners release a debt due to the partnership, although he has no authority to release more than his own moiety the whole debt is discharged. Salmon v. Davis, 4 Binn. 375. So, a receipt by one of sev- eral partners, of money, or any other property, having relation to the partnership concerns is obligatory on the partnership. Brown v. Lawrence, 5 Conn. Rep. 397. See Scott v Trent, 1 Wash. 77. (161) See Lansing v. Gaine, 2 J. R. 300. Graves v. Merry, 7 Cowen, 701. Martin v. Walton, 1 M'Cord, 16. In this case, it was intimated by the court, that the rule requiring spe- cial notice of the dissolution of a copartnership to be given to each person who has bad deal- ings with the firm was too broad, and could not be supported either by reason or authority". The court said, that notice published in a gazette is conclusive on those who have had no' dealings with the copartnership; but as to such as have had dealing, it ..hall not be so considered, unless, from the circumstances of the case, it appear, satisfactorily, that the party had actual notice of the dissolution : And of this, the jury are the proper judges In pursuance of this principle, it has been held, that where notice of the dissolution of a partnership was published jn a gazette taken by a bank, with which the partners had had previous dealings, such publication was sufficient notice to the bank, of the dissolution Bank oj South Carolina v. Humphreys <£• Matthews, 1 M'Cord, 388. A partner having with' drawn from a mercantile company, and being afterwards erroneously included in a suit against a new company formed by the other partners, may, in equity, be relieved a) Ibid. 65. (n) Lodge v. Dicas, 3 Earn. & Aid. 611. (164) See Rootes v. Wellford k Co. 4 Munf. 215. *509 Chap. 1] • Of the Liability of Partners. 509 bankers to send monthly accounts of receipts and payments. In the month following the death of the deceased partner, the London bankers received sums in payment more than sufficient to discharge the balance then due ; but during the same time they advanced money on account of the country-bankers to an equal amount. In the first instance the London bankers entered in their books all receipts and payments made after the death of the deceased partner to the account of the old firm, but they did not transmit any account to the country bankers until two months after the death of the deceased partner, and then they transmitted two distinct accounts ; one the account of the old firm, made up to the day of the death of the partner ; and another, a new account, con- taining all payments and receipts subsequent *to that time : it was determined, that the entries in the books of the London bankers did not amount to a com- plete appropriation by them of the several payments to the old account; such appropriation not being complete until it was communicated to the party to be affected by it ; and therefore that the London bankers, notwithstanding those entries, were entitled to apply the payments received subsequently to the death of the deceased partner to the debt of the new firm. The leading authority on this subject, is the judgment pronounced by Sir William Grant, whilst Master of the Rolls, in Clayton's case, (q) upon an ex- ception to the Master's report in a cause of Devaynes v. Noble, (r) where it had been referred to the Master to take an account of what was due at the death of William Devaynes, deceased, from the partnership of the said William De- vaynes, John Dawes, William Noble, R. H. Croft, and Richard Berwick, to the plaintiffs, and all such other persons as were creditors of the partnership, at the time of the death of Devaynes, and also of what was due, at the time of making the decree, from the partnership to such creditors, and to enquire whether such creditors, or an}-, and which of them, continued to deal with the surviving partners after the death of Devaynes, and what sums of money were paid by the surviving partners to such creditors, respectively, from the death of Devaynes to the bankruptcy, and what had since been received by them respec- tively. And also whether such creditors, or any, and which of them, had, by such subsequent dealings, released the estate of Devaynes from the payment of their respective debts, or what (if any thing) remained due in respect thereof. One class of creditors was represented by Mr. Clayton, and consisted of those who after the death of Devaynes, continued to deal with the surviving partners both by drawing out and paying in money ; payments being made by the surviving partners before they received any money of the creditors, and the balance varying from time to time, sometimes increased and sometimes dimin- ished, but upon the whole considerably increased by the subsequent transac- tions. At the death of Devaynes, Clayton's cash balance in the hands of the partnership amounted to 1713/., and a fraction. After the dealh of Devaynes, and before Clayton paid in any further sums to his account with the bankers, (q) 1 Merivale's Rep. 585. (V) Ibid 530. *510 510 Of Partnership Contracts, and [Part III. he drew out of the house sums to the amount of 1260/., thereby reducing his cash balance to 453/. and a fraction. From this time to the bankruptcy, Clay- ton both paid in and drew out considerable sums, but his payments were so much larger than his receipts, that, at the time of the bankruptcy, his cash balance in the hands of the surviving partners exceeded 1713/., the amount of the cash balance at Devaynes's dealh. By the amount of the dividends receiv- ed since the bankruptcy, (those dividends being apportioned to the whole debt proved under the commission,) the *balance of 1713/. would be reduced to 1171/. and a fraction; and it was this last sum which Clayton claimed against Devaynes's estate, and as to which the master had reported that Clay- ton had, by his subsequent dealings with the surviving partners, released the said estate. An exception was taken to the Report ; and after the matter had been argued at great length, and with great ability at the bar, and all the cases on the subject brought into review, the following judgment was pronounced by the Master of the Rolls : — " Though the report states the Master's opinion to be that Mr. Clayton hast, by his dealings and transactions with the surviving partners, subsequent to the death of Mr. Devaynes, released his estate from the payment of the cash balance of 1713/., yet that the ground of that opinion is, not that the acts done amount constructively to an exoneration of Mr. Devaynes's estate, but that the balance due at his death has been actually paid off, and, consequently, that the claim now made is an attempt to revive a debt that has once been completely extin- guished. This case has given rise to much discussion, as to the rules by which the application of indefinite payments is to be governed. Those rules we probably borrowed, in the first instance, from the civil law. The leading rule, with regard to the option given, in the first place to the debtor, and to the creditor in the second, we have taken literally from thence. But according to that law, the election was to be made at the time of payment, as well in the case of the creditor, as in that of the debtor. If neither applied the payment, the law made the appropriation according to certain rules of presumption, depending on the nature of the debts, or the priority in which they were in- curred. And, as it was the actual intention of the debtor, that would, in the first instance, have governed ; so it was his presumable intention that was first resorted to as the rule by which the application was to be determined. But it has been contended that, in this respect, our courts have entirely reversed the principle of decision, and that in the absence of express ap- propriation by either party, it is the presumed intention of the creditor that is to govern, or at least, that the creditor may, at any time, elect how the payments made to him shall retrospectively receive their application. There is certainly a great deal of authority for this doctrine. With some shades of distinction, it is sanctioned by the case of Goddard v. Cox,(s) by Wilkinson V. Sterne, (t) by the ruling of the Lord Chief Baron in Nemnarch v. Clay,(v) (s) 2 Stra. 1191. (u) 14 Eaat Re[>. 239. \t) 9 Mod. 427. *511 Chap. 1.] Of the Liability of Partners. 511 and by Peters v. Andcrson,{v) in the Common Pleas. From these cases, 1 should collect, that a proposition which in one sense of it is indisputably true ; namely, that if the debtor does not apply the payment, the creditor may make the application to what debt he pleases, has been extended much beyond its original *meaning, so as in general to authorise the creditor to make his election when he thinks fit, instead of confining it to the period of payment, and allowing the rules of law to operate where no express declaration is then made. There are, however, other cases which are irreconcileable with this indefinite right of election in the creditor, and which seem on the contrary, to imply, a recognition of the civil law principle of decision. Such are, in partic- ular, the cases of Meggott v. Mills,(w) and Dome v. Holdsworth.(x) The creditor in each of these cases, elected, ex post facto, to apply the payment to the last debt. It was in each case held incompetent for him so to do. There are but two grounds on which these decisions could proceed : either that the application was to be made to the oldest debt, or that it was to be made to the debt which it was most for the interest of the debtor to discharge. Either way the decision would agree with the rule of the civil law, which is, that if the debts are equal, the payment is to be applied to the first in point of time. If one be more burthensome, or more penal than another, it is to it that the payment shall be first imputed. A debt on which a man could be made a bankrupt, would undoubtedly fall within this rule. The Lord Chief Justice of the Common Pleas, explains the ground and reason of the case of Dowe v. Holds- worth, in precise conformity to the principle of the civil law. The cases then set up two conflicting rules ; the presumed intention of the debtor, which in some instances, at least, is to govern ; and the ex post facto election of the creditor, which in other instances is to prevail. I should, therefore, feel my- self a good deal embarrassed, if the general question of the creditor's right to make the application of indefinite payments were now necessarily to be deter- mined. But I think the present case is distinguishable from any of those in whbh that point has been decided in the creditor's favour. They were all cases of distinct insulated debts, between which a plain line of separation could be drawn. But this is the case of a banking account, where all the sums paid in, form one blended fund, the parts of which have no longer any distinct existence. Neither banker nor customer ever thinks of saying this draft is to be placed to the account of the 5001. paid in on Monday, and this other to the account of the 500/. paid in on Tuesday. There is a fund of 1000/. to draw upon, and that is enough. In such a case there is no room for any other appropriation than that which arises from the order in which the receipts and payments take place, and are carried into the account. Presumably, it is the sum first paid in, that is first drawn out. It is the first item on the debit side of the account that is discharged or reduced by the first item on the credit side. (b) 5 Taunt. 596. (x) Peale Ni. Pri. G4. (to) Ld. Raym. 287. *512 513 Of Partnership Contracts, and [Part 111. The appropriaton is made by the very act of setting the two items against each other. Upon that principle, all accounts *current are settled, and particu- larly cash accounts. When there has been a continuation of dealings, in what way can it be ascertained whether the specific balance due on a given day has, or has not, been discharged, but by examining whether payments to the amount of that balance appear by the account to have been made ? You are not to take the account backwards, and strike the balance at the head, in- stead of the foot of it. If appropriation be required, here is appropriation in the only way that the nature of the thing admits. Here are payments, so placed in opposition to debts, that, on the ordinary principles on which accounts are settled, this debt is extinguished. If the usual course of dealing was, for any reason, to be inverted, it was surely incumbent on the creditor to signify that such was his intention. He should either have said to the bankers, — " Leave this balance altogether out of the running account between us," or, "Always enter your payments as made on the credit of your latest receipts, so as that the oldest balance may be the last paid." Instead of this, he receives the account drawn out as one unbroken running account. He makes no objec- tion to it, and the report states that the silence of the customer after the re- ceipt of his banking account is regarded as an admission of its being correct. Both debtor and creditor must, therefore, be considered as having concurred in the appropriation. But there is this peculiarity in the case, that it not on- ly by inference from the nature of the dealings and the mode of keeping the account, that we are entitled to ascribe the drafts or payments to this balance, but there is distinct and positive evidence that Mr. Clayton considered and treated the balance as a fund out of which, notwithstanding Devaynes's death, his drafts were to continue to be paid. For he drew, and that to a con- siderable extent, when there was no fund, except this balance, out of which his drafts could be answered. What was there, in the next draft he drew, which could indicate that it was not to be paid out of the residue of the same fund, but was to be considered as drawn exclusively on the credit of money more recently paid in 1 No such distinction was made ; nor was there any thing from which it could be inferred. I should, therefore, say, that on Mr. Clay- ton's express authority the fund was applied in payment of his drafts in the or- der in which they were presented. But even independently of this circum- stance, I am of opinion, on the grounds I have before stated, that the master has rightly found that the payments were to be imputed to the balance due at Mr. Dcvaynes's death, and that such balance has, by those payments, been fully discharged. The exception must therefore be over-ruled." So, in the case of Bodenham ty- Philips v. Purchas the elder, (y) where, af- ter a bond had been given to the several persons constituting the firm *of a bank- ing-house, conditioned for the repayment of the balance of an account, and of such further sums as the bankers might advance to the obligor ; one of the part- (;/) 2 Barn. & Aid. 33. '513 *5U Chap. 1.] Of the Liability of Partners. 514 ners died, and a new partner was taken into the firm; and at that time a considerable balance was due from the obligor to the firm; but advances were afterwards made by the bankers, and payments made to them on ac- count by the obligor : the latter was credited by the new firm with the several payments, and charged with the original debt and subsequent ad- vances, as constituting items in one entire account ; and the balance due at the time of the partner's death was considerably reduced, and that re- duced balance, by order of the obligor, was transferred by the bankers to the account of another customer, who, with his assent, was charged with the then debt of the obligor. The person so charged having become insolvent, the surviving partners of the original firm brought their action upon the bond. But the court of King's Bench determined, that as they had not orig- inally treated it as a distinct account, but had blended it in the general account with other transactions, they were not at liberty so to treat it at a subsequent period ; and that having received in different payments a sum more than sufficient to discharge the debt due upon the bond at the time of the death of the deceased partner, that the bond was to be considered as paid. And in Newmarch v. Clay,(z) where the plaintiffs had dealt for a long time with two partners, not knowing that they had a third partner during part of the time, and furnished them with goods, and received payments on account generally, and previous to the time when the secret tri-partnership was dissolved, goods had been furnished, and to cover which, bills had been paid to the plaintiffs by the two ostensible partners, which were dishonoured after the secret dissolution of the tri-partnership, and then other goods were furnished as before, yet as the dishonoured bills were afterwards delivered up by the plaintiffs upon the receipt of the subsequent good bills, whieh latter were more than sufficient to cover the debts of the tri-partnership, though not to cover, in addition, the goods furnished after the dissolution of it ; It was held, that such delivering up of the old dishonoured bills, upon receipt of the new good bills, was evidence of a particular appropriation of such new bills in pay- ment and discharge of the old debt : of which the secret third partner might avail himself in an action on the case for goods sold and delivered, brought against him jointly with the other two partners. In the case of Bodcnham fy Purchas,(a) Baylcy Just, observed, " that the decisions in courts of law do not break in upon the distinction *taken in Clay- tori's case, and that the principle established by those decisions is, that where there are distinct accounts, and a general payment, and no appropriation made at the time of such payment by the debtor, the creditor may apply such pay- ment to which account he pleases ; but that where the accounts are treated as one entire account by all parties, that rule does not apply." Abbott Just, said, " that Clayton's case, was decided upon great consideration, and was an au- U) 14 East Rep. 239. C«) Ante, 513. *515 515 Oj Partnership Contracts, and [Part III. thority of great weight." And Holroyd, Just, added, " that it was decided on the soundest principles, and governed this case. 5. HOW PARTNERS MUST SUE OR BE SUED UPON PARTNERSHIP CON- TRACTS, AND AFTER THE DISSOLUTION OF THE PARTNERSHIP BY DEATH OR BANKRUPTCY. How Partners must Sue upon Partnership Contracts.] — In actions by a partnership firm for recovery of a joint debt, or for damages for non-perform- ance of any other contract made during the partnership, all the partners in the firm at the time of contracting the debt, or making the contract, whether they continue in partnership or not, must sue and be sued (except in the case of bankruptcy as will be afterwards noticed) the contract or promise being joint. And therefore, if one partner only sues upon a joint contract, the action can- not be maintained ; and the defendant may take advantage of this omission at the trial, and nonsuit the plaintiff. (165) But in an action for a tort or wrong, this matter can only be taken advantage of by plea in abatement, (b) An action upon a contract, however, must be brought at the suit of such partners only as were in partnership at the time of making the contract, (c) In the case of Garrett v. Taylor,(d) where three persons had employed the defendant to sell some timber for them, in which they were jointly concerned ; he had paid two of them their exact proportions, and they had given him a receipt in full of all demands ; the third now brought his action for the remainder, being his share ; and it was objected, that as this was a joint employment by three, one alone could not bring his action ; but it was ruled by Lord Mansfield, that where there had been a severance as above stated, that one alone might sue for his proportionate share. A secret or dormant partner may be made plaintiff in a suit ; though not necessarily so : (e) and he need not be joined, if his apparent and ostensible partner represented himself as the sole contractor. (/)( 166) So, *nominal part- ners need not be joined, if they really had no interest in the concern, unless the defendant's rights would be affected, (g) Infants must join in actions brought by their partners, though they cannot be jointly sued with others, (h) 2. How Partners should be sued upon Partnership Contracts.] — In actions against partners, all of them should regularly be sued ; though if one be sued alone, he can only take advantage of this omission by plea in abate- (b) Vide 2 Stra. S20. 2 Term Rep. Leveck v. Shaftee, 2 Esp. Rep. 468. 282. (/) Skinner v. Stocks, 4 Barn. & Aid. 437. (c) 1 Esp. Rep. 182. 1 Maule & Sel. 249. (d) Sitting's at Guildhall, Trin. 4 G. 3. co- («•) 3 Esp. Rep. 238. ram Lord Mansfield, Esp. N. P. 117. (A) 14 East Rep. 210. (e) Lloyd v. Archbowle, 2 Taunt. 324, 325. (165) See Dob v. Halsey, 16 J. R. 34. Waggoner v. Gray's Exrs. 2 Hen. & Munf. 603. (166) It has been decided, that a dormant partner need not be joined in assumpsit for goods sold, founded on a contract, at the time of making which, his interest was unknown to the defendant. Clarkson v. Carter, 3 Cowen, 84. •516 Chap. 1.] Of the Liability of Partners. 516 ment ; for if he were allowed to give it in evidence upon the trial, and so non- suit the plaintiff', it would be a great hindrance to justice ; for in many instances a creditor does not know all the partners, particularly a secret one. (167) But where the defendant pleads in abatement, he must set forth in his plea the names of all his partners, and the plaintiff is thereby informed against whom he ought to proceed. (i) And any agreement amongst each other, as to which shall be liable, will have no effect upon a third party : there may, indeed, be some cases in which a change of credit by agreement between the parties, would transfer the liabili- ty from the original contracting party to one only of the firm, (k) Secret and dormant partners, or mere nominal partners need not be made defendants in a suit at law. (/) An infant partner should not be joined, (/«) but a bankrupt partner at the time of entering into the contract, though he has obtained his certificate, must be joined. (n) If several partners, however, jointly commit a tort, the plaintiff has his election to sue all or any of the members, because a tort is, in its nature, the separate act of each individual ;(o) but if the ground of complaint is merely for the non-feazance of a contract, all the partners must be sued.(p) But where two persons jointly carry on business as partners, but one only appears, and is known in the concern, and is permitted to represent himself to the world as a sole trader, that one shall not be allowed to set up partnership as a defence to an action brought against him only.(y) 3. How Partners are to Sue and be Sued upon the event of the Death of any of them.] — With regard to surviving partners, it is a rule, that where one of several partners dies, an action upon a partnership contract must be brought in the name of the survivors only ;(16S) for the executor and the survivors cannot join, because the *remedy survives, and in an action by or against a surviving partner, the plaintiff may declare not only for a debt contracted in the lifetime of the deceased partner, but also for a debt due to or (i) 2 Bl. Rep. 695. 947. 5 Bur. 2612. See (m) 3 Esp. Rep. 76. 4 Taunt. 468. also 1 Saund. 291. b. n. 4. (,i) 2 Maule & Sel. 23. & 444. 6 Taunt. (k) 1 Campb. Rep. 99. n. 173. (I) 3 Price Rep. 533. 4 Maule & Sel. 475. (o) 5 Bur. 2813. 5 Term Rep. 649. 7 Term Rep. 361.n. c. But see 1 Mar. 246. (p) 12 East Rep. 454. 2 New Rep. 454. contra. ( 7 ) 7 Term Rep. 361. (167) And for the same reason, where action of assumpsit was brought against S. & S. as partners, under the name of S. & S. and Co., makers of a promissory note, and judgment was recovered against them, which was unsatisfied ; and, afterwards, it was discovered, that P. & W. were also members of the partnership, at the time the note was given ; whereupon, the plaintiff brought an action against the four, as makers of the note ; held, that the judg- ment against the two defendants was a bar to the subsequent suit against the four defen- dants, both suits beinsfforthe same cause of action. Robertson v. Smith, 18 J. R. 459. See Penny v. Martin, 4 J. Ch. R. 566. See also Scottv. Dunlop, 2 Munf. 3-19. Shields v. Oney, 5 Munf. 550. Brown v. Belches, 1 Wash. 9. Banietv. Watson, Id. 372. (168) See Murray v. Mumford, 6 Cowen, 441. M'Carty v. Nixon, 2 Dall. 65, 66. note. Wallace v. Fitzsimmons, 1 Dall. 248. Tom v. Goodrich, 2 J. R. 213. Goelet v. M'Kinstry. 1 J. C. 403. " 03 »517 517 Of Partnership Contracts, and [Part III. from the survivor in his own right, (r) The executor must resort to a court of equity to obtain from the survivor the testator's share of the sum recovered : and where a creditor or other person seeks to recover from a surviving partner a debt, or damages for non-performance of a contract made by him and his deceased partner, the surviving partner alone must be sued, for he cannot be sued joint- ly with the executor, because one is to be charged de bonis testaloris, and the other de bonis propriis.(s) And when a surviving partner dies, his executor or administrator is to be made defendant, (t) So, if the contract be several, or joint and several, the executor of the deceased may be sued at law in a separate ac- tion, (u) 4. How Partners must Sue and be Sued in the event of Bankruptcy of any of them.] — If one of several partners become bankrupt, the solvent partners must sue jointly with the assignees for a joint debt or contract which accrued prior to the bankruptcy, (v) So, where one of several contracting par- ties against whom there is a cause of action upon a joint contract, becomes bankrupt, the action must be brought jointly against the solvent partner and the bankrupt. (w) (169) The assignees of A. a bankrupt, and also of B. a bankrupt, under separate commissions, cannot recover in the same action ajoint debt due from the defen- dant to both the bankrupts, and also separate debts due to each : and if, in such an action, the jury have assessed the damages severally on the separate counts, the court will arrest the judgment on those counts which demand the debts due to each bankrupt separately.(.r) But where the plaintiff declared as assignees of A. and B., and also as assignees of C, for a joint demand due to all the bank- rupts, such declaration was held good on motion in arrest of judgment after ver- dict, (y) 6. OF THE RIGHT OF SET-OFF OF MUTUAL DEBTS. Joint and separate debts cannot be set off against each other ; for the stat- ute (z) only authorizes the setting off of mutual debts : and therefore, as well the debt sought to be recovered as that to be set off, must be due in the same right:(170) but a debt on a joint and several bond, maybe set off to an ac- (>•) Vide 2 Terra Rep. 476. 5 Term. Rep. (tc) 2 Maule & Sel. 23. 444. 1 Wils. 493. 6 Terra Rep. 582. 89. (s) Carth. 171. 2 Lev. 228. {x) Hannock and others, Assignees v. (t) 3Brod. & Bing. 302. 9 Co. 89. a. Haywood, 3 Term. Rep. 433. (u) Burr . 1194, &c. («/) Streatfield v. Halliday, lb. 779. (») 10 East Rep. 418. 12 Mod. 416. (z) 2 Geo. 2. c. 22. s. 13. 8 Term Rep. 140. (169) See Lang v. Keppele, 1 Binn. 123. (170) It is well settled, that a debt due from an individual partner, cannot be set off against a partnership demand, and vice versa. Scott v. Trent, 1 Wash. 77, 79. Ritchie v. Moore, 5 Munf. 388. Jlrmisteud v. Butler's Admr. 1 Hen. & Munf. 176. See Rose v. Mm- chie, 2 Call, 409. This last case, under the circumstances and custom of the country, was considered to be an exception to the general rule. But in an action against one partner, for a debt due by the partnership, a receipt by the plaintiff to the defendant, for goods, may be set off, the defendant being sued alone. Purriancev. Sutherland, Addis. 291, 292. *518 Chap. 1.] Of the Liability of Partners* 518 tion brought by one of the obligors only, (a) So, a debt # upon a bond purport- ing to be a joint and several bond, but executed by one only of the obligors, may be set off to an action commenced by the obligor who has executed it. (c) So, a partnership debt due to a defendant as surviving partner, may be set off against a demand on him in his own right, and vice versa.{d) So, if a firm be carried on in the name of one person only, a separate debt from that person may be set off either in an action commenced in his own right or in an action commenced by the firm.(e) So, if a person give a note to his bankers for a debt due to them, and the bankers indorse the note to another firm, consisting of some of the partners to the banking-house, the maker of the note may set off any debt due to him from his bankers to an action commenced against him on the note by the firm who hold it.(/) So, if it is agreed between a separate tradesman and the members of a firm, that the separate debts due to him from each member of the firm shall be set off against the joint debt due to him from the firm, and the parties continue their dealing without any express renewal of their agreement, the joint and separate debts may be set ott.{g) But a judgment recovered by a separate plaintiff against a firm of two members cannot be set off upon his application, against a judgment recovered against him by the trus- tees under an insolvent act for one of the defendants, (h) 7. OF CONTRACTS AND PROMISES BY PARTNERS LYTER SE. Generally speaking, one partner has no remedy at law against his copartner for any thing relating to the partnership concern, except upon an express con- tract or promise made between them ; the only remedy being in a court of equity. (171) But money paid by one partner to another before the bankruptcy of the latter, for the purpose of being paid over as his liquidated share of a debt to their joint creditor, if it be not so applied, is proveable as a debt under the commission of the bankrupt partner, and also recoverable against the solvent partner ; and if (o) Fletcher v. Dyche, 2 Term. Rep. 32. (e) Slacey v. Decy, 2 Esp. Rep. 469 n. (c) Fletcher v. Dyche, 2 Term. Rep. 32. (/) Putter v. Roe, Peake, 197. See also 2 Bos. & Pul. 333. (g) Kinnerley v. Hossack, 2 Taunt. 170. (d) 5 Term Rep. 493. 6 Term Rep. 5S2. (&) Doe v. Damton, 3 East Rep. 149. (171) See Beach v. Hotchkiss, 2 Conn. Rep. 425. S. C. Id. 697. Collins v. Phelps, 3 Day, 506. Casey v. Brush, 2 Caines, 293. Murray v. Bogert, 14 J. R. 318. Ozeas v. Johnson, 4 Dall.434. S. C. 1 Binn. 191. Niven v. S picker man, 12 J. R. 401. Halsted v. Schmebzel, 17 J. R. 80. It has been held, that where partners hold land together, they are tenants in common ; and if, on a conveyance of the land by them, one partner receive the purchase money, the other may maintain assumpsit against him, for his proportion of it. Coles v. Coles, 15 J. R. 159. And where one of three.partncrs took, an assignment of all the partner- ship stock and credits, and agreed to pay all the partnership debts, he is liable, in an ac- tion at common law, for a debt due from the copartnership to one of the copartners. Ho- bart v. Howard, 9 Mass. Rep. 304. So, one partner may maintain assumpsit against his co- partner, after a dissolution of the partnership, to recover back money paid by mistake on the adjustment of the partnership concerns. Bond v. Hays, 12 Mass. Rep. 34. See further, Gray v. Portland Bank, 3 Mass. Rep. 364. *518 518 Of Partnership Contracts, and [Part III. the latter be not called upon to repay the debt to the joint creditor till after the bankruptcy of the other, he may recover from the bankrupt partner his share of such debt so paid after the bankruptcy to the joint creditor, notwithstanding he may have obtained his certificate. (?) So, where A. engages as a partner in a particular transaction with B., C, and D., who were before partners ; B., C, and D., become bankrupts, after which A. pays a debt due from himself and them to a joint creditor ; it was de- termined that these three partners constituted but one *debtor to A., and that he might recover from B., the proportion of B., C, and D., towards the joint debt ; B. not having pleaded in abatement, (k) So, where A., B., and C, having dissolved partnership, C, after such disso- lution, drew bills in the partnership firm in favour of D., he not knowing of such dissolution ; upon which D. brought his action against all the former partners, and C. having pleaded his bankruptcy, D. entered a nolle prosequi as to him, and recovered judgment against A. and B., which was afterwards satis- fied by the attorney of A. and B., who advanced part, and borrowed the rest of the money on their joint credit : it Avas holden, that the sum so paid in sat- isfaction of the judgment, might be recovered in a joint action by A. and B. against C.(Z) But where A. and B. are engaged in a partnership in insuring ships, &c. which is carried on in the name of A., and A. pays the whole of the losses, such a partnership being illegal by stat. 6 Geo. 1. c. 18., A. cannot maintain an action against B. to recover a share of the money that has been so paid.(m) Though, if two persons jointly engage in a stock-jobbing transaction, and incur losses, and employ a broker to pay the differences, and one of them, with the privity and consent of the other, repay the broker the whole sum, he may recover a moiety from his companion in an action for money paid to his use, notwithstanding the stat. 7. Geo. 2. c. 8.(n) One partner may maintain an action against his copartner, for money re- ceived to the separate use of the former, and wrongfully carried to the part- nership account, (o) But where A., B., and C., became partners in insuring ships, (contrary to the stat. 6 Geo. 1. c. 18. s. 12. ;) and it was agreed that the policies should be underwritten in the name of A. only, several policies were effected, and the premiums received by C. and D. as brokers : it was determined that A. could not recover those premiums from C. and D. ( p) Where two persons enter into articles of partnership for a term of years, in (i) Wright v. Hunter, 1 East Rep. 20. (n) Petrie and another v. Hannay, bart. ,3 (k) Wright v. Hunter, 1 East Rep. 20. Term Rep. 418. See also Yaikney v. Rey~ (I) Osborne and another v. Harper, 5 East nous, 4 Bur. 2069. Rep. 225. (o) Smith v. Barrow, 2 Term Rep. 476. (m) Mitchell and others v. Cockburne, 2 H. (p) Booth and others v. Hodgson and ano- Bl. 379. See also Auhert v. Maze, 2 Bos. & ther, 6 Term Rep. 405. Pul. 371. S. P. *519 Chap. 1.] Of the Liability oj Partners- 519 which is a covenant to account yearly, and to adjust and make a final settlement at the expiration of the partnership, and they dissolve the partnership before the term expires, and account together, and strike a balance which is in favour of the plaintiff, including several itc?ns not connected with the partnership, and the defendant promises to pay it, an action of assumpsit lies on such express promise.(^) If two persons are in the habit of jointly purchasing lots of cattle from the breeders, and afterwards selling them in smaller parcels ; and upon *the sale of part of a lot, the buyer give them a bill of exchange ; and the remaining part of the lot continues unsold, and the accounts between the joint purchasers are not settled ; and if one of these joint purchasers indorse this bill to the other, who, upon its dishonour, promises to pay the indorsee one moiety, upon his provid- ing for the whole bill, it has been held, that he cannot maintain assumpsit, for such moiety. (r) If a member of a London bank be partner with a country bank, and at the dissolution of the partnership, the country bank be indebted to the London bank; and the London house continue, without any alteration in the mode of keeping the accounts, to make advances to the country house, and to receive payments from it ; and after the application, by the London house, of the payments re- ceived to the debt due at the time of the dissolution, there remains a balance due to the London house, assumpsit will lie for its recovery. But if one partner is a member of two firms, an action of assumpsit cannot be maintained by one firm against the other after the death of such member, for a debt due during his life, (s) If upon the dissolution of a partnership, one of the partners admit a sum to be due from him, an action will lie upon an implied without any ex- press promise, (t) So, it has been ruled, that if upon the dissolution of a part- nership, one of the partners admits a sum to be due from him, and offer to pay it, if his copartner will perform a condition ; the copartner may main- tain an action on the implied assumpsit, without the performance of the condi- tion, (u) (7) Foster v. Allanson, 2 Term Rep. 479. (s) Bo.ianquet v. Wray, 6 Taunt. 598. and Moravia v. Levy, lb. 433. n, a. 2 Mar. 319. (r) Robson v. Curtis, 1 Stark. 79. ; and see (t) Rackstraw v.Imber, 1 Holt, 369. Venning v. Leckie, 13 East, 7. (it) Ibid. '520 531 Of Contracts by Master and Servant. [Part HI. 'CHAPTER II. OF CONTRACTS BY MASTER AND SERVANT. From the relation subsisting between master and servant, the subject of the present chapter may be considered under the following heads : 1. WHAT CONTRACTS MADE BY A SERVANT SHALL BIND HIS MAS- TER. 2. IN WHAT CASES THE MASTER IS ENTITLED TO THE EARNINGS OF HIS APPRENTICE OR SERVANT. 3. OF THE SERVANT'S LIABILITY TO HIS MASTER UPON HIS CON- TRACT OF HIRING. 4. OF THE MASTER'S LIABILITY FOR WAGES ; AND OF THE DISSOLU- TION OF THE CONTRACT OF HIRING. 5. OF THE MASTER'S LIABILITY, TO PROVIDE MEDICINE, &c. FOR HIS SERVANT IN SICKNESS ; AND ALSO NECESSARIES FOR HIS APPREN- TICE. 1. WHAT CONTRACTS MADE BY A SERVANT SHALL BIND THE MAS- TER. In general a master is liable for acts done by his servant in the exercise of his official employment. And the reason of this liability is said (a) to arise from the relation subsisting between master and servant ; *for, as in strictness, every one ought to transact his own affairs, and it is by the favour and indul- gence of the law that he can delegate the power of acting for him to another, (a) Bac. Abr. tit. Master and Servant, K. *521 *522 Chap- 2.] Of Contracts by Master and Servant' 522 it is highly reasonable that he should answer for such substitute, and that his acts should be deemed the acts of the principal. Therefore where a bailiff or servant hath authority from his master to buy or sell goods, &c. for him, he shall be answerable for the contract made by his bailiff or servant relating to the sale of them.(£) So, where a servant usually buys for the master upon credit, and the servant buys some things without the master's order, yet if the trader trusted the master he shall be chargeable, (c) So, in Sir Robert Way- land' 1 s case,(d) where it was proved, that he used to give his servant money ev- ery Saturday to defray the charges of the foregoing week, the servant kept the money ; yet per Holt Ch. J. " The master is chargeable, for the master at his peril ought to take care what servant he employs ; and it is more reasona- ble that he should suffer for the cheats of his servant than strangers and trades- men." And in the case of Hazard v. Treadwell,(e) where the defendant, who was a considerable dealer in iron, and known to the plaintiff as such, though they had never dealt together before, sent a waterman to the plaintiff for iron on trust, and paid for it afterwards. He sent the same waterman a second time with ready money, who received the goods, but did not pay for them. It was ruled, that the sending the waterman upon trust the first time and paying for the goods, was giving him credit, so as to charge the defendant upon the se- cond contract. Again, in the case of Precious v. Abel,(f) which was an action for work done as a farrier in shoeing and physicking the defendant's horse : the defence was, that the defendant, by an agreement with his groom, allowed him five guineas a year, for which he was to keep the horses properly shod, and furnish them with proper medicines when necessary. Lord Kenyon Ch. J. held, that it was no defence to the action, unless the plaintiff knew of this agreement, and expressly trusted the groom. That if the servant buys things which come to his master's use, the master should take care to see them paid for; for a tradesman has nothing to do with any private agreement between the master and servant. And in the case of Gratland v. Freeman,(g) which was an action of assump- sit for beer sold by the plaintiff, a publican, to the defendant. On the trial, it appeared that the defendant had been in the habit of dealing with the plain- tiff upon credit, and had paid him occasionally when the bill amounted to a cer- tain sum. After paying up all arrears, *the defendant told the plaintiff's servant, who brought the beer, that he would run up no more bills with the plaintiff, but would pay for the beer as it came in ; and the defence was, that he had paid the money to the servant. Lord Eldon Ch. J. said, " The defendant must show that the master had notice of this change in the mode of dealing." It was (b) F. N. B. 120. G. See also Doct. and also Rusby v. Scarlett, post. 524. S. P. Stad. Dial. 2. c. 42. (c) 1 Stra. 506. (c)lShow95. 3Salk. 234. Holt's Rep. (/) 1 Esp. Rep. 350. 460. (g) 3 Esp. Rep. 85. () 6 Mod. 69. 1 Salk. 6S. S. C. (122) See Trongoll v. Byers, 5 C6wen,48». *52T 527 Of Contract* by Master and Servant. [Part III. Holt Ch. J. said, he would understand him an apprentice or servant de facto, and that would suffice against the defendant being a wrong doer. So, in the case of Eades v. Vandcput,(s) which was an action against the captain of a ship of war by the master of an apprentice, to recover wages for the service of his apprentice, who, having been impressed, was detained on board the defendant's ship. The only witness to charge the defendant with knowledge was the apprentice boy himself, who swore that after he had been impressed and carried on board the ship, he told the defendant, the captain, that he was an apprentice, and required his discharge, which was refused. The Court were of opinion that the evidence of the boy was sufficient, and that the captain ought to have made enquiry into the truth of what the boy said ; for after that information he detained him at his peril ; and it was admitted that if the indentures had been produced, the defendant would have been bound to have discharged the boy. So, in the case of Curtcis v. Bridges,(t) it was held, that if the master of one ship takes a servant that belongs to the master of another ship, whatever wages he receives from the King upon his account shall be to the use of his first mas- ter, being acquired by the labour and industry of his servant. But though the master is clearly entitled to the earnings of his apprentice, it may be doubted whether the same rule applies to the case of hired servants. All the cases which occur in the books relate to *apprentices only. It is, how- ever, observed,^/) with regard to hired servants, that the master's proper reme- dy in all cases, except those in which the servant is intentionally employed on his master's account, seems to be an action either against the employer for loss of service, if he knew of the first retainer, or against the servant himself for breach of his contract, such a case rather importing the master's right to dam- ages for the injury sustained by the consequences of the 6econd retainer, than a right to the profits accruing from the employment. 3. OF THE SERVANT'S LIABILITY FOR BREACH OF HLS IMPLIED UN- DERTAKING TO SERVE HIS MASTER WITH DILIGENCE AND FIDELI- TY, &c. Upon every contract of hiring there is an undertaking implied on the part of the servant, that he will serve his master with care, diligence, and fidelity ; so that wherever the master sustains an injury by reason of any negligence or mis- conduct on the part of his servant, the former may maintain an action against the latter, either of assumpsit, or on the case in tort to recover a compensation by way of damages for breach of his duty. Thus, if A. is employed by B. to sail from England to the Indies, and A. covenants, that he or his servants will not thence import any calicoes, &ic, and A. retains C. as his servant in this voyage, and acquaints him with the covenants, and notwithstanding C. falsely (s) Mich. 25 Geo. 3. B. R. 5 East Rep. that an action of indebitatus assumpsit for 39 n. a. work and labour will lie in such case. (t) Comb. 43°. See also Lightly v. Clous- (u) Co. Lit. 117. a. n. 1. Bac. Abr. tit. tvn, 1 Taunt. 112. where it was determined Master and Servant. # 528 Chap. 2.] Of Contracts by Master and Servant, a-28 and fraudulently briogs thence certain calicoes, &c, A. shall have an action against C, for though no action lies by a master for the bare breach of his command, yet if a servant does any thing falsely and fraudulently, to the dam- age of his master, an action will lie. (u) So, if a merchant's servant takes his master's goods that are arrived at a port in England, and before payment of the customs, lands ihem, per quod the goods are forfeited and seized by the king ; the master may have an action of tres- pass upon the case against his servant, (w) And if a servant drives his master's cart, and by his negligence suffers the cattle to perish, an action upon the case lies against him. (a-) So, if a man deliver a horse to his servant to go to mar- ket, or a bag of money to carry to London., which he neglects to do, the mas- ter may h ave an action of account or detinue against him : or, he might now maintain an action of assumpsit for breach of his implied promise, (y) But if a man delivers money to his servant to carry to such a place, and he is robbed, the servant shall not answer for it ; for a servant only undertakes for his dili- gence and fidelity, and not for the strength and *security of his defence, and therefore shall not be obliged to preserve his master's property at all adven- tures, (z) 4. OF THE CONTRACT BETWEEN MASTER AND SERVANT FOR WAGES ; AND OF THE SERVANT'S RIGHT TO A MONTH'S WARNING, &c. If a person retains a servant, and agrees to pay him so much by the day, month, or year, the servant may have an action against the master on the con- tract, or against his executors ; for every such retainer will be presumed to be in consideration of wages, unless the contrary appears, (a) So, if a man be re- tained in London, to serve beyond sea, he may have an action for his wages in England; and lay the venue in any county. (/;) Where a person is hired as an assistant, or deputy, to perform the duties of a particular office, at a certain yearly salary, and the principal is afterwards appointed to another situation, and he employs the same person to trans- act the business of both offices, the assistant is not entitled to any increase of salary without some agreement or promise of the principal. Thus, in the case of Bell v Drummond, executor, &c. (c) which was an action of assumpsit for work and labour done and performed by the plaintiff for Paterson, the de- fendant's testator ; it appeared that the testator was clerk to the commissioners of the land-lax, and that the plaintiff had done the business of his office at a sala- ry of 100/. a year : that afterwards, on new duties being imposed, the testator was appointed clerk to the commissioners of those duties, and the plaintiff also transacted that business, but no agreement had been made as to any increase [v) 1 Sid. 298. 1 Lev. 138. (~) Bac. Abr. tit. Master and Servant, H. [w) Cro. Jac. 265. Lane 65. («) Ibid. (x) 7 H. 4. 14. Bro. tit. Action sur case \b) Brownl. 54. 31 - (c) Peake's Cas. N. P. 45 (y) Vide 21 H. 1. 11. Moor 24S. 'S'ZQ 529 Of Contracts by Master and Servant. [Part III. of salary, though the labour of the office was considerably increased. It was proved, that the plaintiff having demanded an additional stipend, the testator had desired the witness (as a friend to both parties) to consider what ought to be allowed the plaintiff. That accordingly the witness did proceed to make an estimate ; but before he had finally made up his mind the testator died. Lord Kenyon Ch. J. said, " that had the plaintiff's case rested wholly on the fact of the new duty being imposed upon him, he should not think it such a case as would have entitled him to come into a court of justice for an additional stipend on a quantum meruit ; if it was, every porter in a shop, or clerk in an office, would, upon an increase of his master's business, be equally entitled to demand an increase of wages. But upon the evidence produced, it ap- peared clearly that the testator himself thought that he ought to pay some- thing, and the only matter in controversy between *him and the plaintiff was the quantum of the additional allowance." The plaintiff obtained a verdict. If a slave comes over from the West Indies, and continues in the service of his master in England, he is not entitled to wages, unless there has been some agreement or contract of service for wages. Thus, in the case of Alfred v. Marquis of Fitzjames,(d) which was an action of assumpsit for servant's wa- ges. It appeared in evidence, that the plaintiff came over from Martinique with the Dutchess of Fitzjamcs. His father and mother had been slaves on an estate belonging to her in that island. He had entered into her service in Martinique before her marriage with the Marquis, and continued to serve her after her marriage ; and the Marquis found him with necessaries of every de- scription. There was no contract for any hiring for wages ; but a witness said, that the Marquis had been heard to promise to pay him wages. Lord Ken- yon, Ch. J. said, " It was his decided opinion, that up to the time of the prom- ise to pay wages, which the witness had said the defendant had made, the plain- tiff had no title to recover, as there was no original contract of service for wages." A contract to pay a certain sum per annum, in consideration of services to be performed, is an entire contract for a year, and without a full year's service, the servant is not entitled to any part of his salary. This was settled in the case of The Countess of Plymouth v. Throg?norton,(e) which was an action of debt, wherein the plaintiff declared upon a writing, whereby the defendant's testator had appointed the plaintiff's testator to receive his rents, and promised to pay him 100/. per annum for his service, and shows that the defendant's testator died three quarters of a year after, during which time he served him, and de- mands 75/. for the three quarters ; judgment for the plaintiff in C. B. by nil di- cit. But upon error brought in K. B. the judgment was reversed ; it being held, (d) 3 Esp. Rep. 3. also 6 Term Rep. 320. S. P. 3 Vin. Abr. (e) 1 Salk. 65. 3 Mod. 153. S. C. See tit. Apportionment, fo. 8. *530 Chap. 2-] Of Contracts by Master and Serva?it. 530 that without a full year's service nothing could be due, and that it was in na- ture of a condition precedent.(173) But with regard to the common case of an hired servant, it is said,(/) that such a servant, though hired in a general way, is considered to be hired with reference to the general understanding upon the subject, that the servant shall be entitled to his wages for the time he serves, though he do not continue in the service during the whole year. So, if a master turns away his servant without a previous notice or warning, (except for misconduct) the servant is entitled to a month's wages. Thus, in the case of Robinson v. Hendman, (g) which was an action of as- sumpsit brought by the plaintiff to recover the amount of a month's *wages, on the ground of his having been discharged by the defendant, without any notice or warning. No agreement was proved to the effect of the claim ; but general usage only was relied on. The defendant proved that the plaintiff was negli- gent in his conduct, frequently absent when his master wanted him, and often slept out. Lord Kenyon, Ch. J. said, " that though in the present case he thought the plaintiff was not entitled to recover on account of his misconduct, he was of opinion, that if a master turned away his servant without warning, or pre- vious notice, and there was no fault or misconduct in the servant to warrant it, he ought to have the allowance claimed, of a month's wages ; which he thought reasonable." (h) 5. OF THE MASTER'S LIABILITY TO PROVIDE MEDICINE, &c. FOR HIS SERVANT IN CASE OF ILLNESS ; AND ALSO NECESSARIES FOR HIS APPRENTICE. 1. Of the Master's Liability to provide Medicine, &c] — Different opinions have been held upon this subject ; and but three cases appear in print. In two of them it was determined that a master is not bound to provide medical attendance, &c. for his servant, who meets with an accident in his master's ser- vice. In the other, which was tried before Lord Kenyon Ch. J. it was ruled, that a master was liable for medicines furnished to his servant whilst in his ser- vice. (174) The two former cases, it should be observed, were argued and (/) Per. Lawrence, Just. 6. Term. Rep. Rep. 198. 4 Campb. 375. 326. (h) See also Spain v. Arnott, 2 Stark. Rep. (g) 3 Esp. Rep. 235. See also, 1 Stark. 256. (173) Where a servant contracted to serve his master for a year, and without just cause, left his service, declaring that he would work no more ; and afterwards, offered to return to his service ; the master is not bound to receive him; nor can the servant recover a pro rata compensation for his services. Lantryv. Parks, S Cowen, 63. See Marsh v. Rulesson, 1 Wend. 514. »- (174) In Dunbar v. Williams, 10 J. R. 249, it was decided, that no action will lie by a physician for medical assistance rendered to a slave, without the knowledge or request of the master, in a case not requiring instant and immediate attention : But, it seems, that if medical or other assistance be rendered to a slave in a case of such pressing necessity as to admit of no previous application to the master, the person rendering such service, would be entitled to a compensation from the master, on an implied assumpsit arising from the legal obligation of the master to provide for his slave. ♦531 531 Of Contracts by Master and Servant. [Part. III. determined in the courts of Westminster-Hall ; the latter was only a determi- nation at nisi prius. I shall, however, present them to the reader in the order which they were determined. The first is, Neivby v. Wiltshire,(i) which was assumpsit for money paid, laid out, and expended for the defendant's use. The case for the opinion of the court stated, that the defendant, a farmer, sent his waggon, in May 1784, to Cambridge ; and in returning, a boy that had been sent with it fell from the shafts and broke hi3 leg : that the boy could not be removed out of the parish where the accident happened on account of the danger it might occasion : that the plaintiff was overseer of the parish where the accident happened, and took the charge of getting the boy cured upon himself : that it was necessary to cut off the lew ; and the overseer expended in and about the cure, 32/. : that after- wards the boy served the remainder of the year with his master ; and the action was brought to recover from the defendant the expences of the boy's cure. Lord Mansfield Ch. J. said, " I don't applaud the humanity of the master in this case ; he does not enquire after his servant for six weeks after the accident ; and when he does, *' he passe* by on the other side.' I think, in general, a master ought to maintain his servants, and take care of them in sickness ; but the question now is, what is the law 1 There is, in point of law, no action against the master to compel him to repay the parish for the cure of his servant : no authority whatsoever has been cited ; and it seems to me that it cannot be. The parish is bound to take care of accidents ; they do their duty in that re- spect : therefore I am inclined to think that the plaintiff cannot recover." The other judges concurred in this opinion, and the Court gave judgment for the defendant. The second reported case on this subject, is, Scarman v. Castell,(k) which was an action to recover the amount of an apothecary's bill for medicines fur- nished to, and attendance on a servant of the defendant, while living under his roof. The plaintiff, an apothecary, attended the servant in the house of the de- fendant, who was a man of large fortune, but it was not proved that the plain- tiff was expressly employed by the defendant ; and therefore it was contended that the plaintiff* could not recover against the master. But Lord Kenyan Ch. J. said, " that he was of opinion that a master was obliged to provide for his servant in sickness and health, and that he, therefore; was liable for medicines furnished to his servant, while in his service. Not that hi3 servant was at lib- erty to go abroad and contract debts for medicines, but that while he was under his master's roof, the master was under a legal, as well as a moral obligation to provide the necessary medicines, and to pay for such as were administered to his servant under such circumstances." The counsel for the defendant then cited the case of Newby v. Wiltshire ; but it was answered by the plaintiff's counsel that the case cited was of a servant ill husbandry. Lord Kenyon said, (i) Easter Term 25. G. 3. K. B. 2 Esp. Rep. G. 3. K. B. Coram Lord KenyonCh J. 1 E«p. 7 39. Rep. 270. and cited in 3 Bos. & Pul. 248. (Jt) Sittings at West, after Hil. Term. 35 •532 Chap. 2.] Of Contracts by Master and Servant- 532 that that case was distinguishable from the present. lie therefore directed the jury to find a verdict for the plaintiff, which they did to the full amount of the plaintiff's bill. But, in the case of Wennall v. Adney,(k) which was also an action of assumpsit to recover the amount of a surgeon's bill. The cause was tried be- fore Le Blanc J. at Shrewsbury assizes, when it appeared that the action was brought to recover Si. 18s. 6d., the amount of a bill for medical attendance upon a servant of the defendant, who had his arm broken while driving the defendant's team, and who had been hired by the defendant at the yearly wages of 3/. 10s. and victuals ; that the accident happened nearer the house of the servant's mother than that of the defendant, and that he was taken to his mother's house ; that the accident happened in one parish, that the house of the ser. vant's mother was situated in another, and the defendant's in a third ; that the plain- tifF*\vho was the surgeon usually employed by the defendant, accidentally pass- ing near the mother's house, was called in , and desired to attend her son ; at which time nothing was said about the defendant paying for his attendance, but the mother observed that she had always been able to pay her way, and hoped she should do so still ; that during the time of the servant's confinement he was supplied with victuals from the defendant's house ; that the plaintiff first delivered his bill to the defendant, but afterwards called a meeting of the parishioners of the parish in which the mother's house was situated, and submitted it to them for payment, who refused to discharge it. The learn- ed judge being of opinion that the defendant, not having employed the plain- tiff, or made any promise of payment, was not liable, nonsuited the plaintiff. The case afterwards came before the Court of Common Pleas upon a rule nisi for setting aside the nonsuit ; and, after argument, the Judges delivered their opinions seriatim, that the action would not lie ; and the Court discharged the rule. 2. Of Necessaries provided for Apprentices.] — A master is bound to provide necessaries for his apprentice. Hut in an action for necessaries pro- vided for an apprentice, if the declaration states " that the defendant is indebt- ed, &c. to the plaintiff for meat, drink, &c. furnished to the defendant's appren- tice" the plaintiff must prove him to be legally an apprentice ; and if the indenture of aprenticeship has not been legally stamped, the plaintiff cannot recover on those counts so laid. Thus, in Aldrige v. Ewen,(l) which was an action of assumpsit brought to recover a sum of money for the board and lodging of a son of the plaintiff, whom he alleged he had bound apprentice to the defendant. The plaintiff had notice to produce the indenture of appren- ticeship. A witness proved, that he had been employed to prepare it, and that it was suggested, it would save expences to have it executed at Perth in Scot- land : that it was prepared and brought from Perth, and was, in fact, execut- ed at Wapping by the plaintiff; but that there was no stamp to it. For the (fc) Mich. Term. 43. G. 3. C. B. 3 Bos. & {I) 3 Esp. Rep. 188. Pul. 247. 65 *633 533 Of Contracts by Master and Servant. [Part III. defendant, it was contended that the plaintiff must be nonsuited, as he had not proved any legal apprenticeship of the person for whose board and lodging the plaintiff sought to recover. To this the counsel for the plaintiff answered, that he could prove the defendant having taken the young man as an apprentice, and of his having served the defendants in that capacity ; and that that would satisfy the averment in the declaration. But Lord Kenyon Ch. J. said : " The plaintiff declares on a contract for necessaries furnished to the defendant's ap- prentice ; and this is so stated in the declaration. To entitle the plaintiff to re- cover, therefore, it must appear, that the relation of master and apprentice le- gally subsisted between the parties, *as it is in that character only the defen- dant is charged. This has not been made out by the plaintiff. An apprentice can only be bound by indenture ; that indenture must be legally stamped. The articles of apprenticeship in this case appear to have been prepared at Perth and executed at Wapping, and to have no legal stamp. They are, therefore, void ; and the plaintiff has failed in proving this necessary averment, and cannot recover," *534 Chap. 3.] Of Contracts toitk a Factor, Broker, ($*c. 535 ^CHAPTER 111. OF CONTRACTS WITH A FACTOR, BROKER, OR AGENT, ON BEHALF OF HIS PRINCIPAL ; AND OF THEIR RESPECTIVE LIABILITIES. In mercantile dealings and transactions between merchants, contracts for the sale and disposition of merchandize, are most commonly entered into through the intervention of factors, brokers, or agents : and when these per- sons act within the scope of the authority committed to them, their principals are bound by such contracts as they may enter into. There is a material dif- ference between a factor and broker, not in name only, but in many important particulars ; and the distinction between the two was very much considered and explained in a recent case of Baring v. Corrie, in which the Lord Chief Jus- tice Abbott observes, (a) " A factor is a person to whom goods are consigned for sale by a merchant residing abroad, or at a distance from the place of sale, and he usually sells in his own name, without disclosing that of his principal ; the latter, therefore, with full knowledge of these circumstances, trusts him with the actual possession of the goods, and gives him authority to sell in his own name. But the broker is in a different situation ; he is not trusted with the possession of the goods, and he ought not to sell in his own name. The principal, therefore, who trusts a broker, has a right to expect that he will not sell in his own name." And Mr. Justice Holroyd in the same case says, " That a factor who has the possession of goods, differs ma- terially from a broker : the former is a person to whom goods are sent or con- signed, and he has not only the possession, but in consequence of its being usual to advance money upon them, has also a special property in them, and a general lien upon them. When, therefore, he sells in his own name, it is with- in the scope of his authority ; and it may be right, therefore, that the principal should be bound by the consequences of such sale ; amongst which, the right of setting off a debt due from the factor is one. But the case of a * broker is different ; he has not the possession of the goods, and so the vendee cannot be deceived by that circumstance ; and besides, the employing of a person to sell (a) 2 Barn. & Aid. 142. •535 # 536 536 Of Contracts with a Factor, Broker, or [Part III. goods as a broker does not authorize him to sell in his own name. If, there- fore, he sells in his own name, he acts beyond the scope of his authority, and his principal is not bound. But it is said, that by these means, the broker would be enabled by his principal to deceive innocent persons. The answer, however, is obvious, that that cannot be so, unless the principal delivers over to him the possession and indicia of property. The rule stated in the case of Hern v. Nichols, 1 Saikeld, 289. must be taken with some qualifications : as, for instance, if a factor, even with goods in his possession, acts beyond the scope of his authority, and pledges them, the principal is not bound ; or if a broker, having goods delivered to him, is desired not to sell them, and sells them, but not in market overt, the principal may recover them back. The truth is, that in all cases, excepting where goods are sold in market overt, the rule of caveat emptor applies." The general duty of -a factor or agent is to procure the best intelligence of the state of trade at his place of residence ; of the course of exchange ; of the quantity and quality of goods at market, their present price, and the proba- bility that it may rise or fall ; to pay exact obedience to the orders of his em- ployers ; to consult their advantage in matters referred to his direction ; to ex- ecute their business with all the despatch that circumstances will admit ; to be early in his intelligence, distinct in his accounts, and punctual in his correspon- dence.^) And being entrusted with the possession, as well as the disposal and management of the goods of his principal, he is bound to take due and proper care of them ; such a degree of care as a prudent man would take of his own property, (c) Another important part of his duty is the protection of the property of his principal by an available insurance(d) ; and also to take care that in the importation and exportation of goods, proper entries are made at the custom-house, and that the duties are duly paid thereon. (e) So, in the sale of goods, a factor should not only observe the instructions of his principal, but when left to exercise his own judgment and discretion in the disposal of them, he should use his utmost skill and knowledge, and sell for the best prices, and for ready money, or customary credit :(/)(175) but when he sells on credit, he should be very careful to deal with persons of known responsibil- (6) Vide Mai. Lex. Mer. 81. Beawes Glaserx. Coicie, 1 Maule & Sel. 52. Lex. Mer. 45. («) Cro. Jac. 265. Bac. Abr. tit. Mer- (c) Coggs v. Barnard, 2 Ld. Raym. 916, chant B. Mollov, 329. Mai. Lex. Mer. 83. 917. (/) Wiliest" Rep. 407. 3 Bos. & Pul. (rf) Smith v. Lascelles, 2 Term Rep. — 4S9. Bulstr. 103. (175) See Geyer v. Decker, 1 Yeates, 436. In New York, factors may, by custom, sell the goods of their principals on credit, at the risk of the latter. Browne v. Robinson <$- Hurlshorne, 2 C. C. E. 341. The general powers, duties and liabilities of factors are further considered in the following cases. Goodenoio v. Tyler, 7 Mass. Rep. 36. Lawler\.Kea- quick, I J. C. 174. Loitard v. Graves, 3 Caines, 226. Drummond v. Wood, 2 Caines, 310. Le Guen v. Gouverneur Sl Kemble, 1 J. C. 437. note. Urquart v. JWIver, 4 J. R. 103. Guy v. Oakley, 13 J. R. 332. Odiorne v. Maxey, 13 Mass. Rep. 179. Wellman v. Nutting, 3 Mass. Rep. 431. Sauches v. Davenport, 6 Mass. Rep. 258. Chap. 8.] dgent, on behalf of his Principal. 536 ity-teK 176 ) k factor cannot legally make himself the purchaser ; nor if em- ployed to purchase, can he be the *seller, unless with the express consent of the principal, having full knowledge of all the attendant circumstances^*) Brokers are noticed in the stat. 1 Jac. 1. c. 21. s. 1. " as persons employed in the contriving, making, and concluding bargains between merchant English, and merchant strangers, and tradesmen, concerning their wares and merchan- dizes, to be bought and sold and contracted for, and monies to be taken up by exchange between such merchant and merchants, and tradesmen." And sec. 8. of the same statute speaks of brokers in London using and exercising the ancient trade of brokers between merchant and merchant. And by the stat. 6 Ann. c. 16. persons acting as brokers in London, must be admitted by the court of the Mayor and Alderman, under such restrictions and limitations for their honest and good behaviour, as they shall think fit; and shall pay 40s. upon admission, and the same sum annually, under a penalty of 25/. for acting with- out. And in 1708, one year after the passing of the statute of Anne, the Court of Mayor and Aldermen of the city of London, made certain rules and regulations for the government of brokers, which have since been and are still in force ; and by virtue of which every person, previous to his being admit- ted a broker, is required to enter into a bond to the mayor, commonalty, and citizens of London, in a penalty of 500/., and also to take an oath, the forms of which are prescribed by the same rules and regulations. The condition of the bond, amongst other things, provides, " That the broker shall upon every contract by him made, declare and make known to such person or persons with whom such agreement is made, the name or names of his principal or principals, either buyer or seller, if thereunto required ; and that he shall not directly or indirectly, by himself or any other, deal for himself in buying any goods, wares, or merchandizes, to barter or sell again upon his own account, or for his own benefit or advantage, or make any gain or profit in buying or selling any goods, over and above the usual brokerage." (i) In a late case, where the condi- tion of the bond was brought under the consideration of the Court of Common Pleas, (A;) it was held, that if a broker be authorized by his principal to make a purchase for him in his (the broker's) own name, and the contract note \P \f- ^°r L 5 } 4 - l T CiXm P h - Re P- 25 8- oath at large in 1 Merivale's Rep. 156. and (h) Vide Lowther v. Lowther, 13 Ves. 103. Holt's Ni. Pri. Cas 431 Coles x Trecothick 9 Ves. 234. Crave v. (A-) Kemble v. Atkins, 7 Taunt. Ren. 260. Ballard, 3 Bro.JDh. Cas. 119. 1 Mo. Rep. 6. S. C. (i) See the Condition of the Bond and the (176) See Leverick v. Meigs $■ Reed, 1 Cowcn, 645., in which the duties and liabilities of PoUer 'fr-X* ^ are w' . y TT ^ ,? CG aIS J °' jBUm '", V - PMm P>, 1 Gallis. 360. Evans v. Potter 2 Grallis 13. Where a tactor sells goods on credit, according to the usual course of trade, to a merchant solvent at the time, if he have no orders to the contrary, he will not he hable in case of insolvency. James v JjP Credit, 1 Bay, 291. Van Men v. Vanderpool, G J. K. 69. M'kmstry v. Pearsall, 3 J. R. 319. Herring v. J\Ia,-vin, 5 J R393 « f LJ fl . v. Fink, 12 J R. 218 MC^nco v. Curzen, 2 Call, 1353. Hie or, having LbStotS f^twn ftl S ° ld ^ del ^ Cred ^em to a person in good credit/and the^ next day sen m the bill, but the purchaser did not pay it ; held, that such sale, being according to JsaS was not a breach of orders. Clark v. Mrlhwick, 1 Pick, 343. b accoraing l0 USd £ e > # 537 537 Of Contracts with a Factor, Broker, or [Part III. be accordingly made out in the broker's name, without inserting that of his principal, such a purchase by the broker does not operate as a breach of the condition of his bond, especially where the broker enters the name of his prin- cipal as being the buyer, in the book kept by him for that purpose. Neither does the condition of the bond absolutely prohibit a broker from dealing as a trader on his own account, but it only operates as a prohibition sub *modo, that is, it imposes upon him a penalty in the event of his trading. But if, in any transaction in which he is really engaged as a principal, he act ostensibly as a broker, such conduct is a gross fraud, in respect of which he can obtain no remedy in a court of justice. (Z) So, if a broker allow a third person, who has not been duly admitted as a broker, to have a concurrent and equal au- thority with himself, in his business of a broker, it is no breach of that part of the condition of the bond which prohibits his employing any person under him to act as a broker, (m) An agent is one employed to act for another either for a general or special purpose, and therefore, in its enlarged signification, comprehends a factor and broker, though the latter are confined to mercantile transactions : but an agent is not so limited, for he is frequently employed to transact the gen- eral business not only of merchants and traders, but of others ; and the au- thority of an agent is created either by deed, by simple writing, by parol, or by mere employment, according to the nature of the business to be transacted ;(177) and his authority is either general or special with reference to its object, i. e. according as it is confined to a single act, or is extended to all acts connected with a particular employment. A general authority does not import an unqualified one, but that which was derived from a multitude of instances, whereas a par- ticular authority is confined to an individual instance. And whether the author- ity is general or not, is to be collected from the general dealing between the principal and agent, and not merely from private instructions, (n) If an agent is entrusted with a general power, he must exercise a sound and honest judg- ment in those matters which are left to his discretion ; for he will not be justi- fied in taking unreasonable or unusual measures, or doing any thing contrary to the interest of his principal. If, however, his proceedings are challenged, the principal must prove that he might have done better, and was guilty of wil- ful mismanagement. But when his power is limited, he must strictly adhere to his orders, which should always be given in writing. (178) If he exceeds his (I) Ex parte Dyster, 1 Merivale's Rep. 155. (n) Per Lord Ellenborough in Whitehead v. 2 Rose Rep. 349. S. C. Tuckett, 15 East Rep. 408. And see Pick- (m) Lord Mayor of London v. Brandon, 2 eringv. Busk, 15East, 38. Stark. Rep. 14. Holt's JNi.Pri. Cas. 438. S. C. (177) See Stackpole v. Arnold, 1 1 Mass. Rep. 27. Id. 97. Id. 238. (178) Letters of instruction from a merchant to his factor and consignee, in which the price of the goods consigned is barely stated, and expressing a hope, from the excellent qua- lity of the goods, that they would sell readily ; and that the sum mentioned would be realized, without expressly limiting a price below which they should not be sold, will not be construed as fixing the minimum price of the goods ; and a sale for a smaller sum, by the factor, in *538 Chap. 3.] Agent, on Behalf of his Principal. 538 power, though with a view to his employer's interest, he will be liable for the consequences. (179) For example, if he gives credit, when none ought to be given, or longer credit than directed, for the sake of a better price ; and the buyer afterwards becomes insolvent, he shall be answerable for the debt.(o) Although opinion will never justify a factor in acting contrary to orders, ne- cessity sometimes will. As, if he be limited to sell goods at *a fixed price ; and the goods be perishable, and not in a condition to be kept, and the factor has no time or opportunity for consulting with the principal, it is apprehended he may sell them for ready money under the price limited, in order to prevent a total loss. (^)(180) But in such case it would be adviseable to call in two sworn brokers, or other competent persons to examine the commodity. A factor, broker, or agent cannot delegate his power to another without an express authority from his principal for that purpose, (q) And in the execution of the power given to a factor or agent, all contracts, and other acts should be expressed to be made and done by him in the name and on the account of his principal, otherwise the principal may not in all cases be bound by them, and in that event the factor or agent might be personally liable, (r) And a factor or agent who has power to sell the goods of his principal, cannot bind or affect the property of them by tortiously pledging, or otherwise disposing of them, ei- (o) Vide Mai. Lex. Mer. 81. and Sadockv. (r) Vide 9 Co. 76. b. 1 Term Rep. 181. Burton, Yelv. 202. 6 Term Rep. 176, 7. Com. Dig. tit. Attor- (p) But see 2 Mod. 100. ney, C. 14. (q) Bunb. 166. good faith, and without negligence, will not be deemed a violation of the instructions, nor subject the factor to damages. Vianna v. Barclay, 3 Cowen, 281. Where the plaintiffs, merchants in Boston, owners of a ship proceeding on freight from Havana, and consigned to B. & Co., at Leghorn, and to return to Havana, instructed B. &Co. to invest the freight, estimated at 4600 petsos ; 2200 in marble tiles, and the residue, after paying disbursements, in wrapping paper. B. &Co. undertook to execute these orders: Instead, however, of investing 2200 petsos in tiles, they invested all the funds which came into their hands, in wrapping paper ; which was received by the captain of the ship, and carried to Havana, and there sold on account of the plaintiffs, and resulted in a loss instead of a profit, which would have heen realized had the investment been made in marble tiles. As soon as the plaintiffs received notice of the breach of their orders, they addressed a letter to B. & Co., expressing, in strong terms, their disapprobation of the departure from their instructions ; but did not signify their determination to disavow the transaction entirely : it was held, that the plaintiffs were entitled to recover damages for the breach of their or- ders ; that their neglect to give notice to B. & Co., that the paper would be considered as sold on their own account, did not injure their claim; and that the amount of damages ought to be determined by the positive and direct loss arising plainly and immediately from the breach of the instructions. Bell v. Cunningham, 3 Peters, 69. (179) The mere act of a principal in sending his factor a particular commodity for sale, and of the factor in sending goods to the principal, will not authorize the factor to take up goods in the name of the principal, without a special order for that purpose. Pnurie <$• Daw- son v. Fraser, 2 Bay, 269. So, where a merchant in London, consigned goods to B. of Phila- delphia, to be delivered to C. upon payment of the amount, or his giving such security as should be satisfactory to B., and B. delivered the goods without either payment or security ; it was held, that B. was liable for the full amount of the original debt, with a reasonable compensation for the delay of payment. Walker v. Smith, 4 Dall. 389. (180) A deviation from instructions may be justified by a state of things not m contem- plation at the time when the orders were given. Dutar v. Perit, 4 Binn. 361. *539 539 Of Contracts ivith a Factor, Broker, or [Part III. ther by way of security for, or in satisfaction of his own debt.(.s)(181) And where goods are thus pledged or disposed of, the principal may recover them back by action of trover against the pawnee, without tendering to the factor or agent what may be due to him, or without any tender to the pawnee of the sum for which the goods are pledged. And it is no excuse that the latter was wholly ignorant that the former held the goods as a mere factor or agent, (t) But a factor who has a lien on the goods of his principal may deliver them over to a third person as a security to the extent of his lien, with notice of his lien, and may appoint such third person as his servant to keep possession of the goods for him. (182) And in that case the principal must tender the amount of the lien due to the factor before he can be entitled to recover back the goods so pledged, (u) If goods are consigned to a factor or agent, who afterwards becomes bank- rupt, and the goods remain in specie in his hands at the time of such bankrupt- cy, the principal may recover them from the assignees by action of trover : or, if the factor sells the goods, and his assignees afterwards receive the money, the principal may recover it from them in an action of assumpsit for money had and received, (v) So, where the factor sells goods and takes notes in payment from the vendee, payable at a future day, and his assignees afterwards receive the *money, the principal may recover it from them in the same form of ac- tion, (w) So, bills remitted to a factor or banker, while unpaid, are in the na- ture of goods unsold ; and if the factor become bankrupt they must be returned to the principal, subject to such lien as the factor or banker may have there- on, (a;) But if goods be consigned to a factor for sale, and he sell, and re- ceive the money for them before his bankruptcy, and do not purchase with the money any specific thing capable of being distinguished from the rest of his property, the principal cannot recover the whole amount from the assignees, but must come in under the commission, (y) So, it has been ruled in equity, that if one employs a factor, and intrusts him with the disposal of merchandize, and the factor receives the money, and dies indebted in debts of a higher na- ture, and it appears by evidence that this money was vested in other goods, and remains unpaid, those goods shall be taken as part of the merchant's estate, and not the factor's ; but if the factor have the money, it shall be looked upon (s) Vide the cases of Patterson v. Tash, («) Vide M'Combie v. Davies, 7 East Rep. Stra. 1178. Maansv. Henderson, 1 East. Rep. 7. Per Lord Ellenborough Ch. J. Pickering 337. Newsom v. Thornton, 6 East Rep. 17. v. Busk, 15 East Rep. 44. M'Conibie v. Davies, lb. 538. Martini v. (u) Scott v. Surman, Willes's Rep. 400. Coles, 1 Maule & Sel. 146. See also 6 East Rep. 26. in notis. (t) M'Combie v. Davies, 7 East Rep. 5. (to) Willes's Rep. 400. See also Hartop v. Hoare, Stra. 11S7. Dan- (x) Zinck v. Walker, 2 Bl. Rep. 1154. See bigney v. Duval, 5 Term Rep. 604. also Co.Bkpt. Laws, chap. 8. s. 15. (y) Scott v. Surman, Willes's Rep. 400. (181) See Stirnermaun\. Cowing, 7 J. Ch. R. 275. Bowie v. Napier, 1 M'Cord, 1. Emm* v. Potter, 2 Gallis. 13. Skinner v. Dodge, 4 Hen. & Munf. 432. Bulkley v. Packard, 20 J. R. 421. Kinder v. Shaw, 2 Mass. Rep. 398. (182) Urquhart v. Mc her, 4 J. R. 103. *540 Chap. 3.] Agent, oa Behalf of his Principal 540 as the factor's estate, and must first answer the debts of a superior creditor, &c. for as money has no ear-mark, equity cannot follow that in behalf of him who employed the factor, (z) But if A. employs B. as his factor to sell cloth, and B. sells the cloth on credit, and before the money is paid, B. dies indebted by specialty more than his assets will pay ; this money shall be paid to A. and not to the administrator of B. as part of his assets, but thereout must be de- ducted what was due to B. for commission ; for a factor is in nature only of a trustee for his principal, (a) Having made these introductory observations, I now propose to consider the general subject in the following order, viz. 1. OF THE AUTHORITY GIVEN TO FACTORS, BROKERS, OR AGENTS, TO SELL OR OTHERWISE DISPOSE OF THE GOODS, &c. OF THEIR PRINCIPALS ; AND HOW FAR THE LATTER ARE BOUND BY THEIR CONTRACTS, MISREPRESENTATIONS, OR OTHER ACTS DONE WITH- IN THE GENERAL SCOPE OF THEIR EMPLOYxMENT : AND OF THE COUNTERMAND OR REVOCATION OF THEIR AUTHORITY, &c. 2. OF SALES ON DEL CREDERE COMMISSION. 3. OF SALES BY AUCTIONEERS. 4. OF PAYMENT TO, OR SETTLEMENT WITH A FACTOR, BROKER, ♦OR AGENT, ON ACCOUNT OF GOODS SOLD FOR HIS PRINCIPAL, AND OF THE BUYER'S RIGHT TO SET OFF DEBTS DUE TO HIM FROM THE FACTOR, &c. 5. IN WHAT CASES THE PRINCIPAL, OR HIS FACTOR, BROKER, OR AGENT MAY SUE OR BE SUED. 6. OF THE RIGHTS AND REMEDIES BETWEEN PRINCIPAL, FACTOR, BROKER, AND AGENT, LYTER SE. 1. OF THE AUTHORITY GIVEN TO FACTORS, BROKERS, OR AGENTS TO SELL OR OTHERWISE DISPOSE OF THE GOODS, &c. OF THEIR PRINCIPALS : AND HOW FAR THE LATTER ARE BOUND BY THEIR CONTRACTS, MISREPRESENTATIONS, OR OTHER ACTS DONE WITH- (*) Whitcomb v. Jacob, 1 Salk. 160. ( a) Burdett v. Willett, 2 Vern. 638. *54l 66 541 Of Contracts ivith a Factor, Broker, or [Part HI. IN THE GENERAL SCOPE OF THEIR EMPLOYMENT : AND OF THE COUNTERMAND OR REVOCATION OF THEIR AUTHORITY, &c. 1. Of the Authority given to Factors, Brokers, or Agents to sell, &c] — A general power given by a principal to a factor, broker, or agent to buy or sell his goods, binds him to all contracts bona fide made in respect thereof. Indeed a factor is one who has a general power to buy and sell accord- ing to the best of his judgment, and therefore all bargains which third persons make with him without fraud or collusion, may be enforced against his princi- pal ; and if he sell for a less price, or upon different terms than his commis- sion directs, his sale is nevertheless valid, (b) But if a broker or agent be employed to make one particular purchase of goods of a certain description and price, the principal will not be bound by his contract, if the broker depart from his instructions in either of those particu- lars ;(183) but in the case of a factor or general broker, it would be other- wise.^) It is necessary, however, with regard to a special agent, if it be in- tended to exclude from his authority any circumstance which would otherwise fall within it, that it should be done by express directions. For, though it has been decided, that a special agent employed to negotiate a bill of exchange, and expressly directed not to indorse it for his principals, could not bind them by *doing so. (d) Yet when the fact appeared to be, that the agent was mere- ly commissioned by the defendants to get the bill negotiated, and no express di- rection given him not to indorse it, it was resolved, that the defendants having commissioned the agent to get the bill discounted, without restraining his au- thority as to the mode of doing it, were bound by his acts : and, therefore, that he having warranted the bill to be a good one, this constituted a good con- sideration for their subsequent promise to pay it. (e) And this distinction has been taken upon the sale of a horse, namely, that where a person keeping livery stables, entrusts his servant with a horse to sell, and direct him not to warrant, and the servant do nevertheless warrant him, still the master will be liable on the warranty, because his servant is acting within the general scope of his authority, and the public cannot be supposed cognizant of any private conversation between the master and the servant : but if the owner of a horse send a stranger to a fair with express directions not to warrant the horse, and the latter act contrary to the orders, the purchaser can only have recourse to (b) Ambl. 498. {d) Fenn v. Harrison, 3 Term Rep. 757. (c) East India Company v. Henley, 1 Esp. (c) Ibid. 4 Term Rep. 177. Rep. 111. (183) Where a merchant appoints an agent for a particular purpose, as to purchase a cargo, and authorizes him to draw bills for the amount, and the agent draws bills for anoth- er purpose, on his own account, the principal is not bound to accept or pay such bills. Tuano v. Sakeley,2 Bay, 505. See Parsons v. Armor fy Oakley, 3 Peters, 413. *542 Chap. 3.] Agent, on Behalf of his Principal 542 the person who actually sold the horse, and the owner is not liable on the war- ranty^/) In the absence of particular instructions, however, a general power to sell, implies a power to sell in the usual way ; and therefore the right of an agent to sell upon credit, depends entirely upon the fact of that being the usual mode of dealing in the particular trade in question. If there be no such usage, no contract is created between the principal and vendee, and such sale is a conver- sion in the factor ; and if not in market overt, no property is thereby altered, but trover will lie against the vendee, (/t) So, in the case of Wiltshire v. Sims,(i) where on the transfer of stock, which is usually sold for ready money, it was held, that a sale of stock for a bill at 14 days could not be enforced, the transaction being conducted by a stock broker to whom a general authority was given to sell. And upon that occasion Lord Ellenborough Ch. J. said, " When the defendant employed the broker to sell the stock, he employed him to sell it in the usual manner. He made him his agent for common purposes in a transaction of this sort. But did any one ever hear of stock being absolutely exchanged for a bill at fourteen days 1 Has a broker in common cases power to give credit for the price of stock which he agrees to sell ? The broker here sold the stock in an unusual manner ; and unless he was expressly authorised to do so, his principal is not bound by his acts." So, if there be no usage to give credit, and a factor on a general *authority to sell, sell upon credit, the factor alone will be liable to the vendee ; and unless such sale be in market overt, the property in the goods is not changed, nor even in market overt, if the vendee know that the vendor sells as factor, (k) And it is said,(Z) that a court of equity will compel the vendee under these circumstances to render an account of what he holds. A broker who does not disclose his principal may vary the terms of payment after the sale is completed ; but when the principal is disclosed, the broker is no longer authorised to alter the terms of the contract.(m) It is, however, necessary to the general interest of the mercantile world, that the principal should in some cases be bound by the sale of a special agent, though he does so contrary to his directions ; as for instance, where goods are sent in such a way and to such a place as to exhibit an apparent purpose of sale. And accordingly in the case of Pickering v. Busk,(n) which was an action of trover for hemp : and at the trial before Lord Ellenborough Ch. J. it appeared, that Swallow, a broker in London, engaged in the hemp trade, had purchased for the plaintiff, a merchant at Hull, a parcel of hemp then lying at SymonoVs Wharf m Southwark. The hemp was delivered to SwaU (/) Per Ashurst, Just. 4 Term Rep. 177., (0 3 Ves. 226. and see 1 Dow. Rep. 44, 45. (»«) Blackburn v. Scho'es, 2 Campb. Rep. (h) Per Holt Ch. J. 12 Mod. 514. 313. (i) 1 Campb. 258. (n) 15 East Rep. 38. (fc) 12 Mod. 515. Ante, 530. *54l 543 Of Contracts ivith a Factor, Broker, or [Part III. low, at the desire of the plaintiff, by a transfer in the books of the wharfin- ger from the name of the seller to that of Swallow: Shortly afterwards, Swallow purchased for the plaintiff another parcel of hemp, lying at Browns quay, Wap- ping ; which latter parcel was transferred into the names of Pickering, (the plaintiff,) or Swallow. Both these parcels of hemp were duly paid for by the plaintiff. Swallow, however, whilst the hemp remained thus in his name, having contracted with Hayward and Co., as the broker of Blackburn and Co. for the sale of hemp, and having none of his own to deliver, transferred into the names of Hayward and Co., the above parcels in satisfaction of that con- tract, for which they paid him the value. Hayward and Co. shortly after be- came bankrupts ; and the plaintiff discovering these circumstances, demanded the hemp of the defendants, their assignees, and upon their refusal to deliver it, the present action was brought. His lordship was of opinion upon this evidence, that the transfer of the hemp, by direction of the plaintiff, into Swal- low's name, authorised him to deal with it as owner, with respect to third per- sons ; and that the plaintiff, who had thus enabled him to assume the appearance of ownership to the world, must abide the consequence of his own act. A verdict was therefore found for the defendants ; and upon a rule nisi to set aside the verdict, the Court determined that the verdict was right. And Lord Ellenborovgh Ch. J. said, " It *cannot fairly be questioned in this case but that SiL-allow had an implied authority to sell. Strangers can only look to the acts of the parties, and to the external indicia of property, and not to the private communications which may pass between a principal and his broker : and if a person authorize another to assume the apparent right of disposing of property in the ordinary course of trade, it must be presumed that the appa- rent authority is the real authority. I cannot subscribe to the doctrine that a broker's engagements are necessarily and in all cases limited to his ac- tual authority, the reality of which is afterwards to be tried by the fact. It is clear, that he may bind his principal within the limits of the authority with which he has been apparently clothed by the principal in respect of the sub- ject-matter ; and there would be no safety in mercantile transactions if he could not. If the principal send his commodity to a place, wnere it is the ordinary business of the person to whom it is confided to sell, it must be intended that the commodity w^as sent thither for the purpose of sale. If the owner of a horse send it to a repository of sale, can it be implied that he sent it thither for any other purpose than that of sale ? Or if one send goods to an auction-room, can it be supposed that he sent them thither merely for safe custody ? "Where the commodity is sent in such a way, and to such a place as to exhibit an apparent purpose of sale, the principal will be bound and the purchaser safe. The case of a factor not being able to pledge the goods of his principal confided to him for sale, though clothed with an apparent owner- ship, has been pressed upon us in the argument, and considerably distressed our decision. The Court, however, will decide that question when it arises, consistentlv with the principle on which the present decision is founded. It *544 Chap. 3-] Jlgenl, on Behalf of his Principal. 544 was a hard doctrine when the pawnee was told that the pledger of the goods had no authority to pledge them, being a mere factor for sale ; and yet since the case of Paterson v. Tash,(o) that doctrine has never been overturned. So, where a factor has an absolute power to sell goods consigned to him from abroad, an indorsement of a bill of lading by him while the ship is at sea, provided it be by way of sale, and not of pledge, passes the property, and di- vests the principal's right to stop in transitu. (p) But the authority of a factor to sell the goods of his principal, does not authorize him to barter them for other goods ; and if he, in point of fact, bar- ter the goods, and deliver them, and receive other goods in exchange, no prop- erty passes by the delivery, and the owner of the goods may maintain an ac- tion of trover for them against the person to whom they are bartered and deliver- ed, though he did not know that he had *been dealing with a person who was mere- ly a factor. But it seems that if it had been a sale in market overt it would have bound the seller, (q) So, an agent c annot delegate his authority to another, so as to bind the prin- cipal by the acts of the sub- agent ; but if an express authority be given to em- ploy a sub-agent, or where the usual course of management of the principal's concerns, in the employment of a sub-agent, is pursued for a length of time, and recognised by the owners of property, they will be taken to have adopted the acts of the sub-agent as the acts of the agent himself, and will be lia- ble.(r)(184) 2. A Principal is liable for the Deceit of his Factor in the Sale of Goods, and also for the Misapplication of Money by his Agent.] — Thus, in the case of Hern v. Nichols, (s) which was an action on the case for a deceit, the plaintiff set forth, that be bought several parcels of silk for silk, whereas it was another kind of silk ; and that the defendant, well knowing this deceit, sold it to him for silk. On the trial, it appeared that there was no actual deceit in the defendant, who was the merchant, but that it was in his factor beyond sea : and the doubt was, if this deceit could charge the merchant. Holt Ch. J. was of opinion, that the merchant was an- swerable for the deceit of his factor, though not criminaliler yet civiliter ; for seeing somebody must be a loser by this deceit, it is more reasonable that he who employs and puts a trust and confidence in the deceiver should bo a loser than a stranger : and upon this opinion the plaintiff had a verdict. (185) (o) 2 Stra. 1178. ct vide Daubigny v. Du- (q) Guerreirov. Pcilf, 3 Barn. & Ak\. 616. vol, 5 Term Rep. 604. (,•) 2 Campb. Rep. 218. 597. And see (/)) 4 Burr. Rep. 2051. 6 East, 41. Peake's Bunb. Rep. 166. Cas. N. P. 190. & 9 East Rep. 516. (*•) 1 Salk. 289. Holt. 462. S. C. Sec also 1 Term Rep. 12. (184) See Emerson v. Providence Hat Manufacturing Co. 12 Mass. Rep. 237. When a con- signee acts within the scope of his authority, and employs a sub-agent to carry that au- thority into execution, as by selling jjoods consigned to him, or doing°anv other act within that authority, the sub-agent has a lien upon the goods on account of which he may have made advances for the purposes of a sale. Bowie v. Napier, 1 M'Cord 1. (185) The doctrine that a principal is liable for the fraud of his agent or factor, doe« *545 545 Of Contracts with a Factor, Broker, or [Part III. So, where money is paid to an agent or servant, and he missapplies it, the prin- cipal or agent is liable, (t) 3. Of the Countermand or Revocation of the Authority of a Fac- tor, Broker, or Agent.] — The authority of a broker or agent may, in general, be countermanded by the principal at any time before the contract has been completed, if the party contracted with has not been already put in a worse situation ; though where the agent's power is coupled with an interest, it cannot be determined without his consent, unless by the principal's death or bankrupt- cy.^) The authority of a broker may be countermanded at any time before the memorandum of the contract of the sale is written and signed by him, pursuant to the statute of frauds, although he had previously entered into a verbal agreement to sell the goods, (f) But where a broker is authorized by one man to sell goods, and by another to buy the same, an entry in his books of a sale of these goods, from the one to the other, signed by him, is a binding contract between the parties ; the bought-and-sold note *which is a copy of this entry, is sent to the parties, not for their approval, but to inform them of the terms of the contract, (v) The agent's power is ipso facto determined by the bankruptcy or death of the principal, (w) And in general the authori- ty of an agent, for the purpose of sale, is at an end by the sale ; and therefore an auctioneer after the sale, has no authority to treat of the terms upon which a title is to be made, (a) (186) 2. OF SALES, &c. ON A DEL CREDERE COMMISSION. Del credere is said to be an Italian mercantile phrase, and signifies a par- ticular kind of credit or responsibility, and when applied to the situation of a factor, it is understood in the following sense : a factor who has general or- ders to dispose of goods for his principal, and, in consideration of being paid an additional commission, (y) acts in nature of an insurer to him, by guaran- teeing the solvency of the vendee, and thereby undertaking to pay the money if the vendee does not ; on failure therefore of the vendee, the factor is to stand in his place, and to make his default good : and in an action upon such a (t) Cary v. Webster, 1 Stra. 4S0. (x) Seaton v. Slade, 7 Ves. 276. (it) Watson v. King, 4 Campb. Rep. 272. (i/) Vide 6 Bro. P. C. 287. oct. ed. The 5 Esp. Rep. 158. 2 Stark. Rep. 51. del credere commission is usually 1 1-2 or 2 (I) Farmer v. Robinson, 2 Campb. 339. n. per cent, in addition to the customary corn- er) Hayman v. Neale, 2 Campb. 337. mission for selling, &c. (to) 4 Campb. Rep. 272. not apply to special agents, but to such only as are vested with a general authority. Sherwood v. Marwick, 5 Greenl. 295. (1S6) It has been decided, that an agent who has received money on account of his prin- cipal, with directions to pay it over to a third person, may be compelled to pay it to the principal, at any time before the authority is executed. Doio v. Prescott, 12 Mass. Rep. 419. See further, Kinder v. Shaic, 2 Mass. Rep. 398. So, in general, all persons who act by authority derived from others, may proceed in the execution of such authority, until notice be given of a revocation ; and their acts performed between the time of the revo- cation, and the time of such notice, will be binding on the principal. Boxoerbank v. iyf onis, Wallace, 126. # 546 Chap. 3.] Agent, on behalf of Ms Principal. 546 guarantee, the declaration must set forth the matter specially, (z) The guar- antee must also be in writing to satisfy the statute of frauds, (a) (187) In the case of Mackenzie and another v. Scott, (b) where a factor, under a commission del credere, sold goods and took accepted bills from the purchasers, which he indorsed to a banker at the place of sale, and received the banker's bill, (payable to the factor's order) on a house in London. This last bill the factor indorsed and transmitted to his principal, who got the same accept- ed ; but the acceptor and drawer afterwards failed. It was held, that the factor was answerable for the amount of the bill ; being personally liable, under his commission del credere, to satisfy his principal the price of the goods sold. 3. OF SALES BY AUCTIONEERS. An auctioneer is considered as an agent for the buyer and the seller.(c)(188) And an auctioneer, employed to sell the goods of a third person by auction, has such a special property in them that he may maintain an action in his own name for goods sold and delivered, against a buyer, even though the sale be at the house of such third person, and the goods known to be that person's proper- ty, (d) He is also in the *nature of a stakeholder and liable to be sued for the recovery of the deposit money, where a valid title cannot be made to the purcha- ser, (e) So, where an auctioneer does not disclose the name of his principal at the time of the sale, and the contract is not completed, he is personally liable to an action for damages and expences. If an auctioneer, whilst selling household fixtures, has notice that they do not belong to his principal, but he, notwithstanding proceeds to sell them, he is personally liable to the real owner, in an action of assumpsit for the proceeds of the sale, or to an action of trover, (f) An action does not lie against an auctioneer, at the suit of his employ- er, for selling goods at the highest price bid for them, under the usual con- ditions of sale, though he might have had the owner's express directions not to let them go under a larger sum named. He would, however, be liable, if the owner had directed him to set the goods up at a particular price, and not low- er.(g)(l89) (z) See 4 Maule & Sel. 574. and 1 Mo. (d) Williams v. Millingtcn, 1 H. Bl. 81. Rep. 279. (e) Burrough v. Skinner, 5 Burr. 2639. (a) Ante, 190. (/) Hardacre v. Stewart, 5 Esp. Rep. 103. (6) GBro.P. C. 280. oct. ed. (g) Bexwellv. Christie, Cowp. 395. (c) Ante 99. (187) See Leverick v. Meigs, 1 Covven, 645, wherein the nature and effect of a com- mission del credere are considered. The guaranty of a sale under a commission del credere, does not imply a guaranty of the remittance. Id. (188) See Meadows v. Meadows, 3 M'Cord, 458. (189) The defendant, as auctioneer, received certain goods for sale, with instructions to sell them on a credit of six months, and to take security from the purchasers, severally for the amount of their purchases : The auctioneer sold the goods, and took bonds with secu- rity for a part, and delivered to the purchasers the residue without security; held, that the defendant was liable in damages for the violation of his instructions. Wilkinson v. Campbell, 1 Bay, 166. * 547 547 Of Contracts with a Factor, Broker, or [Part III. An auctioneer, having sold an estate, received a deposit of the purchaser ; but the title being discovered to be defective, an action was brought against him to recover back the amount of the deposit, which he accordingly paid, to- gether with the costs of the action : it was ruled, (/) that the auctioneer could not recover the amount of the costs against his principal in an action of inde- bitatus assumpsit, for money paid, but should have declared specially. So, where an auctioneer was employed to sell an estate, the lowest price of which was fixed by the owner, and written down by him on a piece of paper, which was put under a candlestick at the time of sale, with the privity of the auctioneer, but not signed by the owner, nor any notice in writing given to the auctioneer of the price so set down, nor had the auctioneer giv- en the previous notice of the sale to the collector of the duty, as required by the acts of the 19 Geo. III. c. 56. and 28 Geo. III. c. 37. : but being ask- ed at the sale whether he had taken the proper precautions to avoid the duty in case there were no sale, he said, that it was his mode to fix a price under the candlestick, and if the bidding did not come up to that price, it was no sale or duty : in point of fact there was no sale. The duty, however, did attach, in consequence of the auctioneer not having taken the precau- tions required of the owner, by the statutes under such circumstances ; and the auctioneer was sued for the duty on his bond to the crown, and com- pelled to pay it : the Court of King's Bench decided that the auctioneer could not recover it over against the owners, he having warranted that proper precautions had been taken to *prevent the duty attaching in the event, though both parties were mistaken in the law. (g) So, if the sale of an estate by auction become nugatory by the negligence of the auctioneer who is employed to sell it, he will not be entitled to any re- compence for his services from the vendor. (A) So, if he sell goods and deliver them without notice of any lien or claim which he has on the owner, and the buyer, without such notice, settle for the goods with the owner, the auctioneer cannot sue the buyer for the price of the goods. And if the auctioneer sell the goods of B. as the goods of A., and the buyer pay the price to A., the auctioneer cannot recover the price from the buyer, (i) If no payment be made by the buyer in such case, and the auc- tioneer bring an action against him for the price of the goods, the buyer may set oft' a debt due from A. to him. (k) The clerks of auctioneers are not au- thorised to act in the absence of their masters, as agents for the employers of the auctioneers, unless the employers empower them so to do. (/) (/) Spurrier v. Elderton, 5 Esp. Rep. 1. (g) Capp v. Topham, 6 East Rep. 392. (/i) Denew v. Daverell, 3 Campb. Rep. 451. (i) Coppin v. Walker, 7 Taunt. 237. *548 (fc) Coppin v. Craig, Ibid. 243. (I) Coles v. Trecothick, 9 Ves. 243. 251. For more concerning auctioneer, and sales by auction, vide ante, 132. Chap. 3.] Jgenl, on Behalf of his Principal. 548 4. OF PAYMENT TO, OR SETTLEMENT WITH A FACTOR, BROKER, OR AGENT, ON ACCOUNT OF GOODS SOLD FOR HIS PRINCIPAL : AND OF THE BUYER'S RIGHT TO SET OFF DEBTS DUE TO HIM FROM THE FACTOR, &c. 1. Of Payment to, or Settlement with a Factor, Broker, or Agent.] — Where a factor sells the goods of his principal in his own name, and makes the buyer debtor to himself, he has a right to receive the price, and he may- support an action for it against the buyer ; and it will be no defence to such action for the buyer to say, that the principal is indebted to him in more mo- ney, except in cases where nothing is due from the principal to the factor : and where a factor who had become surety for his principal, for money borrowed by him, upon an engagement by the principal to send the factor all the goods he should make of the money borrowed, sold goods in his own name, but the goods were marked with the name of the principal, and the purchaser knew that the seller sold the goods as factor ; and after an act of bankruptcy com- mitted by the principal, and notice by his assignees to the purchaser not to pay the price of the goods to the factor, the parcliaser did nevertheless pay it to the factor : the Court of King's Bench held him warranted in so do- ing, (m) # But though in ordinary cases, the factor sell goods without disclosing his principal, yet, if the principal give notice to the buyer to pay to him, and not to the factor, the buyer will not be justified in afterwards paying the factor, if nothing be then due to him from his principal. (n) But where the owner of goods, being indebted to a factor in an amount exceeding their value, consigned them to him for sale ; the factor being also similarly indebted to I. S., sold the goods to him ; the factor afterwards became bankrupt ; and on a settle- ment of accounts between I. S. and the assignees, I. S. allowed credit to them for the price of the goods, and he then proved the residue of his claim against the estate : it was determined, that as the factor had a lien on the whole price of the goods, such settlement of accounts between the vendee and the assignees afforded a good answer to an action against the vendee for the price of the goods, brought either by or on the account of the original owner.(o) So, if the owner of goods allow his broker to sell them as a principal, the purchaser will be discharged by paying the price of the goods to the broker.(/>) And if on some occasions the principals allow their brokers to draw bills in their own name for goods which they have sold on their account, they are bound by a payment made to the brokers by a purchaser, (q) And upon a sals of goods by a broker, for a principal not named, upon the terms of — " payment (m) Drinkwater v. Goodwin, Cowp. 251. (o) Hudson v. Granger, 5 Barn. & Aid. 27. See also, Coppin v. Walker, 7 Taunt. Rep. (p) Coates v. Lewes, 1 Campb. 444. 237. 2 Mar. Rep. 497. (q) Toicnsend v. Inglis, ^Halt N. P. Cas. (») Bull. Ni.Pri. 130. 278. 67 *549 549 Of Co?ilracts with a Factor, Broker, or [Part III. in one month, money ;" which terms are specified in the bought and sold notes handed over to the respective parties by the broker ; a payment made to the broker within the month, by a bill of exchange, accepted by the buyer, and dis- counted by him within the month, is good; but the buyer being also indebted to the same broker for another parcel of goods belonging to other persons, and accepting the bill for a larger sum than either of the parcels of goods alone amounted to, though not for a sum large enough to cover both demands, and there being no specific appropriation of the payment to either of the debts, it was held, that on the broker stopping payment, the payment for the goods ought to be equitably apportioned between the several owners of the goods sold, and that they were respectively entitled to recover the difference from the buyer.(r) And in this case the jury were of opinion that the stipulation in the contract, of a " month money," meant, in the understanding of commercial men, payment at any time within a month ; and that the payment in question within the month to the brokers, with whom the defendant had dealt without the knowledge of their principal, was a good payment to bind their principal. *So, with regard to general agents, the rule of law, that if a creditor em- ploys an agent to receive money of a debtor, and the agent receives it, the debtor is discharged as against the principal ; but if the agent, instead of receiv- ing money, sets off money due from him to the debtor, then the latter is not discharged. In cases of insurance, usage m ay possibly introduce a different rule; but at all events an underwriter has never been considered discharged as against the assured, until his name has been struck off the policy. If the un- derwriter relies on his communication with the broker, as discharging him, without actual payment of the money, he should insist that his name should be struck off the policy. If that be done, and the plaintiff then forbears to call upon him for payment within the period warranted by the usage of the trade, then the underwriter may be discharged, but otherwise he is not.(s) So, a tender of money to an agent, authorised to receive payment, is as good as a tender to the creditor in person. (t) But the demand of a debt, to do away the effect of a tender, must be made by some one authorized to give the debtor a discharge. (u) If a creditor take the security of the agent of his debtor in payment of the debt, unknown to the principal, and give the agent a receipt as for the money due from the principal, in consequence of which the principal deals in any man- ner differently with the agent, on the faith of the receipt, the principal is dis- charged, though the security fail : but the principal is not exonerated from the payment, if he cannot show that he was injured by means of such false voucher, and the omission of the party to inform him of the truth in time, (v) It should here be observed, that with regard to sales made through the inter- vention of a known broker, the general rule, as to payment, is, that upon a sale (r) Favenc v. Bennett, 11 East. 36. (s) Per Abbott Ch. J. 4 Barn. & Aid. 398. (t) Goodland v. Blewith, 1 Cainpb. 477. *550 (u) Coles v. Bell, ibid. 478. (v) Wyatt v. The Marques of Hertford, 3 East, 147. Chap. 3.] Agents on Behalf of his Principal. 550 of goods to a broker, the vendor is not confined to the credit of the latter, but may resort to the principal at the day of payment ; and the vendor will not be affected by the state of the accounts between them ; nor will it be any available defence to say, that the principal had previously paid the price of the goods to his broker ; but if the vendor suffer the day of payment to go by, without a de- mand on the vendee, he may thereby lead the principal into a supposition that he relies solely on the broker ; and if in that case the price of the goods have been paid to the broker, the principal will be discharged, (w) And where a fac- tor made purchases for his principal, who made payments to him on account, and afterwards the factor was pressed for payment by a letter which came to the hands of the principal, who transmitted it to the factor, and with a knowledge of the fact paid him the residue, it was *held by Lord Mans- field, that the principal was liable over to the sellers for the money he had so paid to his factor after notice. (a;) And where the defendant bought goods of the plaintiff in the name and upon the credit of Smith and Co., but the purchase was in reality made for himself, he was held liable, (y) But if the seller of goods, knowing at the time that the buyer, though dealing with him in his own name, is in truth the agent of another, elect to give credit to such agent, he cannot afterwards recover the value against the known principal. (2) But a payment to a broker varying from the original terms of the contract, is not valid ; nor will evidence of a usage to authorise such a variation be ad- missible. (a) 2. Of the Right of set off by the Buyer, of a Debt due to him from the Factor, Broker, or Agent.] — Having in the preceding section shown in what cases a purchaser is discharged by payment to a factor, broker, or agent, it is now proposed to consider in what cases he is allowed to set off a debt due to him from the factor. The general rule of law, in regard to dealings with a factor, is, that where he does not disclose his principal, as is seldom the case, but sells and delivers the goods in his own name, and as his own property, the person with whom he deals may set off a debt due to him from the factor, in an action brought against him by the principal for the price of the goods. (b)( 190) But if upon a sale of goods by a broker, the name of the principal be disclosed, no right of set off can exist. (191) This was settled (10) Kymer v. Suwercrop, 1 Campb. 109. (a) Campbell v. Hassel, 1 Stark. Rep. (x) Poioell v. Nelson, 15 East Rep. 65. 233. (y) Railton v. Hodgson, ibid. 67. (6) George v. Clagett, 7 Term Rep. 359. (z) Paterson v. Gandase qui, 15 East Rep. & 2 Esp. Rep. 557. 62. Addison v. Same, 4 Taunt. Rep. 574. (190) See Atkinson v. Teasdale, 1 Bay, 295. The report of this case is not very satis- factory. It does not appear whether the factor disclosed his principal or not : But from the tenor of the report, it would seem, that the decision is in opposition to the general principle of law on the subject. (191) Where goods are sold by a person known to be the factor of a particular house, a set-off cannot be made against the principals by the purchaser, for a debt due from the factor in his own right, though the factor do carry on business for himself, and nothing is Baid, at the time of the sale, respecting the ownership of the goods. Browne v. Robertson & Hwtshorne. 2 C. C. E. 341. *551 551 Of Contracts with a Factor, Broker, or [Part III. in the case of Morris v. Clea<>bij,(c) where the defendant purchased, as broker forB., the goods of A., for whom he sold them under a del credere commission, and did not disclose at the time the name of A., but disclosed it soon after, and afterwards paid A. the price, it was determined by the Court of King's Bench, that, in an action by the assignees of B. to recover the balance due upon a re- sale of the goods made by the defendant on account of B., the defendant was not entitled, either under stat. 2 G. 2. c. 22. s. 13. or 5 Geo. 2. c. 30. s. 28. to set off the payment made to A. : and the general rule laid down in this case is, " that the principal must always be debtor, and that whether he is known in the first instance or not : and it will make no difference whether the vendee does or does not know, at the time of the sale, that the broker sells for an un- known principal, or that he has a del credere commission." It has also been determined, with regard to factors, that circumstances which show collusion between the factor and buyer, as the insolvency of the factor known to the buyer, would defeat the right he *would otherwise have.(d) The mere knowledge, however, of the seller being a factor, is not sufficient to deprive the buyer of the privilege of set off without express knowledge that he acts as agent in that particular instance ; because a man who is in the habit of selling for others, may likewise sell goods of his own.(e) No right of set off can be allowed between a salesman and a buyer of cattle at Smithfield market, to an action brought by the owner of cattle sold, though evidence was offered to prove, that, by the universal custom of the market, the defendant was considered as the debtor of the salesman, and not of the owner, with whom he had no connection. But Lord Kenyon Ch. J. refused the evi- dence, declaring no custom could deprive the plaintiff of that which by the law of the land he was entitled to receive; and laid particular stress upon the de- fendant's knowledge that he received the money for the use of another ; which he said distinguished the case from that of a banker receiving money from a factor whose principal he had never heard of.(/) And it is also clear, that a principal can never be allowed to set off a debt due to him from his own brok- er, against the demand of one with whom he has contracted through the medi- um of the broker, (g) But it may be observed generally, that where the principal resides abroad, he is presumed to be ignorant of the party with whom his factor deals, and therefore the whole credit is considered as subsisting between the contracting parties. (/;) 5. IN WHAT CASES THE PRINCIPAL, OR HIS FACTOR, BROKER, OR AGENT, MAY SUE OR BE SUED. 1. In what Case the Principal may sue or be sued.] — It is a general (c) 4 Maule & Sel. 566. (/) Peake's ^. Pn. Cas. 1/7. (d) Escotv. Milward, 7 Term Ren. 361. {g) Waring v. Favenc, lCampb.Rer.fv>. n . b . (h) 3 Bos. & Pul. 489. Palerson \. Oan- (c) Moore v. Clementson, 2 Campb. Rep. dasequi, 15 East Rep. 64. 24. *552 Chap. 3.] Agent, on Behalf of his Principal 552 rule, that if a factor, broker, or agent, sell goods for his principal, the ac- tion may be brought either in his own name or in that of his principal. (102) But when brought in the name of the principal, he has the benefit of the fac- tor's evidence, (i) (193) And though the agent act upon a del credere commis- sion, which makes him liable on failure of the vendee, yet the responsibility of the vendee to the principal is not altered by that circumstance. (&) So, where credit has been properly given to an agent on a purchase for the use of the principal, the vendor has, in general, a right to come upon the latter for pay- ment, without regard to any transaction or account between the principal and the agent. Therefore no private agreement, by which it is stipulated between the principal and agent, that the latter only is to be answerable to the seller, *can affect the right of the latter. (I) Thus, in the case of Kirner v. Suercropp,{m) which was an action for goods sold and delivered ; and the facts were, that ihe plaintiffs sold the goods to K. and Co. to be taken away in one month, and paid for in a month from the sale. K. and Co. were really brokers for the defendant, but that was not known to the plaintiffs till some time after the sale. K. and Co. became insolvent before the expiration of the month, the defendants having previously paid them the price of the goods. It was contended for the defendant, that though in general, upon a sale to a broker, the vendor may come upon the principal when discovered, the doctrine must be taken with this qualification, that the principal has not pre- viously paid the price of the goods to the broker. But Lord Ellcnborough Ch. J. said, " A person selling goods is not confined to the credit of a broker who buys them, but may resort to the principal on whose account they are bought ; and he is not affected by the state of accounts between the two. If he let the day of payment go by, he may lead the principal into a supposition that he relies solely on the broker ; and if in that case the price of the goods have been paid to the broker, on account of this deception, the principal shall be discharged. But here payment was demanded on the day it became due, and no reason was given the defendant to believe that his broker alone was trusted : and accordingly a verdict was directed for the plaintiff." And for the same reason a principal cannot, under these circumstances, protect himself by setting up a balance due to him from his own broker, (n) And it may be taken as a general rule, that the principal is liable, when (i) 1 Atk. 248. (,„) i Campb. Rep. 109. Speeringv. De- Ik) 4Maule & Sel. 574. grave,2 Vcrn. 643. (I) Palcy on Principal & Agent, 186. (n) Waring v. Favenc, Ante, 549. (192) See Girard v. Taggart, 5 Serg. & R. 19, 27. By the decision in this case, the authority of Willing v. Rowland, cited 4 Dal. 106, in note ; and also cited in 3 Yeates, 342., was overruled. In all cases of contracts with the United States, through their agents, the United States have a right to enforce the performance of such contracts, or to recover damages for their violation, by actions in their own name, unless a different mode of suit be by law prescribed. Duganv. United Stales, 3 Wheat. 172. (193) See Sewall v. Fitch, 8 Cowen, 215. *553 553 Of Contracts with a Factor, Broker, or [Part III. discovered, whether his name be disclosed or not at the time of the contract, unless in particular cases, where, by the usage of trade, the credit is under- stood to be confined to the agent, (o) But where A., a foreign merchant em- ployed B. to purchase goods on commission ; the vendors (with the knowledge that the purchases were made on account of A.) made out the invoices to B., and took in payment his acceptances : it was held, that there was no contract of sale as between A. and B.(p) 2. In what Cases the Factor, Broker, or Agent may sue or be sued.] Where a contract is made by a factor, an action may be brought upon it in his own name. And it is the same thing whether the contract be made by the factor solely upon his own credit, as is generally the case with factors abroad, or as the known representative of another : and it is indifferent whether he act under a del credere commission or not.(g) But when the principal has once come forward and *demanded payment, and taken steps for the recovery of the debt, the factor is no longer a creditor, (r) It has also been determined, that where a factor, having money due to him from his principal, who receives cloths, and is authorised to sell them in his own name, but makes the buyer debtor to himself, though he is not answerable for the debts, yet he has a right to receive the money, and his receipt is a dis- charge to the buyer : he has also a right to bring an action against him to com- pel the payment ; and it would be no defence for the buyer in that action to say, that, as between him and the principal, he (the buyer) ought to have that money, because the principal is indebted to him in more than that sum ; for the principal himself can never say that, but where the factor has nothing due to him." And in the same case, it was observed by Lord Mansfield, " That there is no case in law or equity, where a factor having money due to him to the amount of the debt in dispute was ever prevented from taking money for cloths in his hands. "(s) So, a broker, who has advanced money on goods, may declare on a contract respecting the sale of them in his own name, though in the sale-note the name of the principal is inserted, (t) So, in the case of Banfill v. Leigh and ano- ther,^) where A. and B. assigned to the plaintiff all debts due to them, and gave him a power of attorney to receive and compound for the same, under which the plaintiff submitted to arbitration the matters indifference subsisting between his principals and the defendants ; and the plaintiff and defendants mutually promised to perform the award. The arbitrator awarded a sum of money to be paid by the defendants to the plaintiff as such attorney, and the (o) Vide Paterson v. Gandasequi, 15 East Rep. 62 and Mdison v. Same, 4 Taunt. Rep. 574. (p) Seymour v. Pychlau, 1 Barn. & Aid. 14. (q) 1 Atk. 243. Bui. Ni. Pri. 130. 3 Bos. & Pul. 491,495. *554 (r) Sadler v. Leigh, 4 Campb. Rep. 195. (s) Per Curiam in Drinkicater v. Goodwin, Cowp.255. See also Loft. 331. S. P. (t) Jllkins v. Amber, 2 Esp. Rep. 493. See also 1 Campb. 337. (w) 8 Term Rep. 571. Chap. 3-] Agent, on Behalf of his Principal. 554 action was brought in his name for the recovery of that sum. The Court held, that the action was well brought in the name of the plaintiff. With regard to actions against agents, the general rule is, that if a man is known to act merely as an agent, and the principal is known, and there is no express engagement by the agent, nor any circumstances from which it may be inferred, that the credit is given to him, the agent, though the person immediately making the contract, is not subject to personal responsibility. Indeed, it has been decided, that if a servant do not bind himself, by express words, and the thing come to the use of the master, he is not liable to be sued.(u) And it has been said, that no rule of law is better ascertained, or stands upon a stronger foundation than this, that where an agent names his principal, the principal is responsible and not the agent. (w) And therefore agents, when acting for their principals, under a proper authority, are not in general •liable in their individual capacities, (a:) Thus, in the case of Owen v. Gooch,(y) which was an action for work done ; and the order was proved to have been given by Gooch, (the defendant.) The defence was, that the work was order- ed for another person, named Tippel ; that the work in question was done at TippeVs house, and that the plaintiff at the time of the order, was informed that the work was on TippeVs account. The entry also in the plaintiff's books was, " Tippel, by the order of Gooch." Lord Kenyon Ch. J. ruled, "That the mere act of ordering the goods for another does not make the person giv. ing the order liable. If a man order goods, though they be in fact for another, yet if the tradesman were not informed at the time they were so, he who or- dered them is certainly liable ; for the tradesman must be presumed to have looked to his credit only. So, if they were ordered for another person, and the tradesman refuse to deliver them to that person's credit, but to his only who ordered them, there is then no pretext for charging such third person ; or if the goods were ordered to be delivered on account of another, and after the deliv- ery, the person who gave the order refuses to inform the tradesman who the principal is, that he may sue him ; under such circumstances he is himself lia- ble. But wherever an order is given by one person for another, and he informs the tradesman who that person is for whose use the goods are ordered, he thereby declares himself to be merely an agent ; and there is no foundation for holding him to be liable. In this case the plaintiff was informed of all the circumstances ; Gooch gave the order for Tippel ; the goods were sent to Tip- peVs house and the entry made in his name. There is no colour for making Gooch the debtor." So, where money is paid by mistake to an agent for the use of his princi- pal, and the agent has paid it over, he is not liable in an action by the person who mispaid it ; because it is just, that one man should not be a loser by the mistake of another ; and the person who made the mistake is not without re- dress, but has his remedy over against the principal. On the other hand it is (») Dy. 230. a. ( x ) Per Lord Ch. Talbot, 3 P. Wm?.279. (w) Per Lord Erkskine, ex parte Hartop, («) 2 Esp. Rep. 567. 12 Ves. 352. ' r * *555 §55 Of Contracts with a Factor, Broker, or [Part III. just, that as the agent ought not to lose, he should not be a gainer by the mis- take : and therefore, if, after the payment so made to him, and before he has paid the money over to his principal, the person corrects the mistake, and gives him notice not to pay it over to his principal ; the agent cannot afterwards pay it to his principal, without making himself liable to the real owner for the amount, (a) But the mere circumstance of passing such money in account, or making rest, without any new credit given, fresh bills accepted, or further sum advanced for the principal, in consequence of it, is not equivalent to the pay- ment of it over to the principal.(i) *But if a factor, employed by a principal resident abroad, buy or sell goods for him here, an action will lie against or for him in his own name ; for the credit will be presumed to be given to him in the first case, and in the last, the promise to be made to him.(c) So, where a factor or servant buy goods generally, and do not upon the con- tract declare that he buys only as factor or servant, he is chargeable in his own rio-ht ; and in all cases where a factor delivers goods as his own, and conceals his principal, he is to be taken to all intents as the principal, (d) This notifica- tion of the principal must be at the time of the contract ; it is not sufficient to make it afterwards. Thus, in an action for the non-delivery of goods, it appeared that the defendant had entered into and signed a written contract, engaging to deliver certain goods to the plaintiff, which he had failed to do. The defence was, that the defendant was merely a factor, and that this was known to the plaintiff before the action brought, but subsequent to the contract. Lord Ellenborough Ch. J. was of opinion that the defendant was liable, the prin- cipal not having been notified at the time, and no subsequent act being done to shew that the plaintiff waived the liability of the defendant, and relied upon the principal. (e) And though it be known that the agent acts in a representative character, yet if the principal be not known, he is bound personally. Thus, an auctioneer, who did not disclose his principal at the time of the sale, has been held personally liable, upon the non-execution of the contract of sale.(/) So, agents are liable to be sued upon contracts made on behalf of their prin- cipals, where they individually bind themselves by their own undertaking : thus, where an agent by writing acknowledged to have received goods for his em- ployer, and by the same writing bound himself to pay at a day certain ; it was held by all the judges, that an action of assumpsit would lie against him.(^) So, a bill of exchange drawn upon an agent and accepted by him generally, binds him, at least against a third person : as in the case of the Cashier of the York Buildings Company, to whom a bill was addressed by the name of J. B. (a) Per Lord Mansfield, Cowp. 566. 563. (e) Morgan v. Corder, sittings after Easter See also Sadler v. Evans, 4 Burr. 1984. Bui. Term, 1809. Guildhall, Paley on Principal N.P. 133. S. P. and Agent, 293 (h) Buller v. Harrison, Cowp. 565. (/) Hanson v. Roberdeau, Peake s Ni. tn. (c) Gonzales v. Sladen, Bull. Ni. Pri. 130. Cas. 120. ("j. (j>) 1 Esp. Rep. 1 11. and see 3 Term Rep. (fc) 2B1. 1072. 761. V (I) Jppleton v. Binhs, 5 East Rep. 148. (q) 3 P. Wins. 279. (m) Clayhill v. Fitzgerald, 1 Wils. 28. 58. (r) 1 En. Cap. Abr.308. («)3T. R. 761. (194) Where a factor conceals his principal, and sells and delivers the goods of the prin- cipal, in his own name, and warrants them, the purchaser has a right, to all intents and purposes, to consider him as the principal, and may maintain an action against him on a breach of the warranty. Davenport v. Riley, 2 M'Cord, 198. 68 * 557 557 Of Contracts loith a Factor, Broker, or [Part III. 6. OF THE RIGHTS AND REMEDIES BETWEEN PRINCIPAL, FACTOR, BROKER, OR AGENT, INTER SE. 1. Of a Factor, Broker, or Agent's Liability on a Promise to indemnify the Principal, &c] — Where a broker buys goods for his prin- cipal, and agrees for a certain per centage to indemnify him from any loss on the re-sale of them ; if the principal has a fair opportunity *of selling the the goods to advantage, but neglects it, the broker is discharged, though the principal afterwards sells them at a loss, (s) So, an agent purchasing foreign bills for his principal, and indorsing them to him without any qualification, is liable to the principal on his indorsement, how- ever small the commission may be which he gets upon the purchase.(i) 2. The remedy against a Factor, Broker, or Agent, for not duly accounting or paying over Money to his Principal.] — Where the trans- actions between a factor, broker, or agent, involve mutual accounts, which require a long and laborious examination before the result can be ascertained, an action of account or bill in equity is the proper remedy ;(w) though an action at law will certainly lie for the balance of such account(u) or for damages for refusing to come to an account, (w) However in actions at law for the recovery of the balance of accounts between a factor and his principal, where the accounts have been long and intricate, and it has become necessary to enter into a protracted investigation of them at Nisi Prius, some judges have refused to try such causes, not only upon the ground that justice could not be done, it being almost impossible for the jury to enter into and examine minutely the accounts in detail ; but because there are specific remedies open to the parties better adapted to do complete justice, (a;) (195) 3. When a Factor, Broker, or Agent is answerable for Negli- gence, &c] — If a merchant directs his factor or correspondent to insure, and he neglects doing so, he is liable to an action for this neglect of duty.(196) j (s) Curry v. Edennon, 3 Term Rep. 524. (t>) 12 Mod. 521. Sty. 287. 1 Bro. Pari. (t) Goupyv. Harden, 2 Marsh. Rep. 454. Cas. 133. 8vo ed. 2 Stra. 1027. 7 Taunt. Rep. 159. S. C. (to) Carth. 39. (u) Godfrey v. Saunders, 3 Wils. Rep. 106. (x) Lord Holt, Carth. 89., and Lord El- Eq Cas. Abr. 5. Bac. Abr. tit. Accompt. lenborpugh, 2 Campb. Rep. 238. But J3ee 5 1 Salk. 9. Carth. 89. 1 Taunt. 572. Taunt. Rep. 431. (195) A factor having sold goods consigned to him, and having apprized the principal of the fact, may wait t to receive instructions as to the mode of remitting the net proceeds; and is not liable to an action for the amount, until a default on his part, in remitting or paying the money, according to the orders of the principal. Ferris v. Paris, 10 J. R. 285 (196) If a person, who is under no obligation to execute an order for insurance, under- take to do so, and executes the order imperfectly, he is answerable for the consequences. French v. Reed, 6 Binn. 308. An agent is bound to make insurance according to the order of his principal ; 1. Where the principal has funds in his hands. 2. Where the principal consigns goods to him, and he accepts the bill of lading. 3. Where he has been in the practice of making insurance for his principal. Id. If a merchant, who is in the habit of effecting insurances for his correspondent, or is bound to insure ; neglect to do so, or *558 Chap. 3.] Agent, on. Behalf of his Principal 558 Thus, in the case of Smith v. Lascelles,(y) which was an action on the case for neglecting to make an insurance on the freight of goods shipped from Dominica to London. The facts were, that the plaintiff, being indebted to the defendant in 850Z. in February 1785, mortgaged to him his interest in the goods and freight, by way of security ; in which mortgage was contained a proviso, that the deed should be void in case of payment in August 1785. In July 1785, the plaintiff in a letter inclosing the bills of lading, desired the defen- dant to procure an insurance on the goods and freight, which letter could not have been received before the mortgage became absolute. The defendant did cause insurance to be made on the goods, though not on the freight. At the trial, proof was given of a letter having been received by the *defendant from the plaintiff, but it did not appear whether it was the letter in question. A verdict having been found for the plaintiff, a motion was made to set aside the verdict ; but the court refused the rule, and held, that the plaintiff was entitled to recover. Butter J. said, "It is now settled as clear law, that there are three instances in which such an order to insure must be obeyed. First, where a merchant abroad has effects in the hands of his correspondent here, he has a right to expect that he will obey an order to insure, because he is entitled to call his monev out of the. other's hands when, and in what manner he pleases. The second class of cases is, where the merchant abroad has no effects in the hands of his correspondent, yet if the course of dealing between them be such, that the one has been used to send orders for insurance, and the other to com- ply with them, the former has a right to expect that his orders for insurance will still be obeyed, unless the latter give him notice to discontinue that course (y) 2 Term Rep. 187. See also Delancy v. Stodart, 1 Term Rep. 22. S. P. executes the order in an insufficient manner, he will be considered as insurer himself. De Tastet v. Crousillat, C. G. Oct. 1807. S. C. Oct. 1806. Morris v. Summed, C. C. 1803. MS. Reports. Whart. Dig. 8. Where an agent neglected to effect insurance according to a letter of instructions which stated, that the owner valued the vessel at 4000 dollars, threefourths of which sum he wished to be insured ; it was held, that he was liable as in case of a valued policy ; though the letter contained no precise order to have the policy valued. Miner v. Tagert, 3 Binn. 204. But where the owner of a vessel in a foreign port, directed his correspondent here, to procure insurance upon the vessel ; and the agent not being able to procure it to be done in his vicinity, extended his endeavors to a more distant place, and limited the premium at so low a rate, that insurance could not be obtained ; it was held, that the agent was not liable to the owner on the ground of negligence. Sanchcs v. Davenport, 6 Mass. Rep. 258. So, if an agent be instructed by his principal, to effect insurance upon a vessel, and an insurance made pursuant to instructions, would have been void, or not binding upon the insurers, the neolect to procure such insurance will not render the agent liable to the prin- cipal. Msop v. Coil, 12 Mass. Rep. 40. And so, a promise by a merchant's factor or a fyc 567 ment, and the paymaster having absconded in a state of insolvency, *the Court refused to set aside a verdict recovered by the plaintiff for the amount of his debt, as the defendant was liable, in some shape or other, for the paymas- ter's default, and justice had upon the whole been done by the verdict. So, a magistrate is not liable to pay for plans and estimates for building a county gaol upon an employment by him as one of a committee appointed under an order of sessions, (e) But where an act of parliament was passed for making a river navigable, giv- ing power to certain commissioners to raise and borrow money upon the tolls of the navigation, the acting commissioners gave orders at their meetings for work to be done in making cuts, &c. The work being completed, the commissioners declined paying, alleging that they had no trust-money left. The plaintiff filed a bill in Chancery against all the acting commissioners : and the Court held, the commissioners, who acted under the trust, to be personally liable to all the con- tracts, as well those which were made at the meetings when they were not pres- ent, as at those when they were. It was also said by the Court that the com- missioners, having power to borrow money, ought to take care to be provided : that the workmen who engaged to do the work could not know the state of the fund, nor was it their business to enquire ; they gave credit to the commission- ers ; the plaintiff could not be considered as giving credit to the success of the undertaking. (/) So, where the commissioners of a navigation act entered into an agreement with an engineer, they were holden to be personally liable, (g) So, where A. agreed with B. and C. to pave their streets ; and they, on be- half of the parish, agreed to pay him ; and the work being done according to the agreement, A. filed a bill in Chancery against B. and C, and it was held that they were liable, and must take their remedy over against the rest of the pa- rish, (h) («) Tuck v. Ruggles, 5 Eap. Rep. 237. (g) Ibid. (/) Horsley v. Bell, Ambl. 769. 772. But (li) Myriel v. Hymondsold K Hardr. 203 tee Mien v. Waldegrave, 8 Taunt. Rep. 566. *567 568 Of Contracts with Common Carriers [Part III. •CHAPTEK V. OF CONTRACTS WITH COMMON CARRIERS, WHARFINGERS, AND WAREHOUSEMEN: AND THEIR RESPECTIVE LIABILITIES IN CASE OF LOSS OR DAMAGE OF GOODS ENTRUST ED TO THEIR CARE. A common carrier is a person who carries goods for hire either by land or by water ; and as such he is, by the common law, responsible for any loss or damage which may happen to them whilst under his care ; and he is excus- ed in no case except where the loss or damage happen either from inevitable accident, or, as it is not unfrequently called, the act of God ; or, of the king's enemies. (, if a person once a common carrier, but who has aban- doned the business, send his servant with goods belonging to a particular person, from one place to another, with particular instructions not to receive the goods of any other person for transportation, such person will not be liable as a common carrier, in case of the loss or embezzlement of the goods. Satterlee v. Groat, 1 Wend. 272. (206) The master and owners of a vessel arc answerable for goods which they have un- dertaken to carry, if stolen or embezzled by the crew or any other person ; though no fault or negligence be imputable to them. Schiefflin v. Harvey, 6 J. R. 170. Watkinson v. Laugh- ton, 3' J. R. 164. 2d edit. Kemp v. Coughtry, 11 J. R. 107. *56Q 569 Of Contracts with Common Carriers [Part III. by him to Andover, and to be by him forwarded to Shaflsbury by hi3 public road waggon, which travels from London through Andover to Shaflsbury. That by the course of travelling, such waggon was not to leave Andover till the Saturday evening following. That in the night of the following day after the delivery of the hops, a fire broke out in a booth at the distance of one hun- dred yards from the booth in which the defendant had deposited the hops, which burnt for some time with unextinguishable violence, and during that time com- municated itself to the said booth in which the defendant had deposited the hops, and entirely consumed them without any actual negligence in the defen- dant. That the fire was not occasioned by lightning." And the general ques- tion in this case was, whether a carrier was liable for the loss of goods occa- sioned by fire, without any negligence in him or his servants ? And upon this question Lord Mansfield Ch. J. delivered the unanimous opinion of the Court, that the carrier was liable. He said : " It appears from all the cases for one hun- dred years back, that there are events for which the carrier is liable indepen- dent of his contract. By the nature of his contract, he is liable for all due care and diligence ; and for any negligence he is suable on his contract. But there is c *further degree of responsibility by the custom of the realm, that is, by the common law, a carrier is in the nature of an insurer. It is laid down that he is liable for every accident, except by the act of God, or the King's enemies. Now what is the act of God 1 I consider it to mean something in opposition to the act of man : for every thing is the act of God that happens by his permission: every thing by his knowledge. But to prevent litigation, eollusion, and the necessity of going into circumstances impossible to be un- ravelled, the law presumes against the carrier, unless he shows that it was done by the King's enemies, or by such act as could not happen by the intervention of man, as storms, lightning, and tempests. In this case it does not appear but that the fire arose from the act of some man or other. It certainly did arise from some act of man ; for it is expressly stated not to have happened by light- ning. The carrier therefore, in this case, is liable, inasmuch as he is liable for inevitable accident."(207) But in the case of Garside v. The Proprietors of the Trent and Mersey Navigation, (i) where a common carrier between A. and B. was employed to carry goods from A. to B. to be forwarded to C. ; the goods were safely deliv- ered by him at B., and there put into his warehouse, until they could be deliv- ered to another carrier from B. to C. ; but whilst the goods were in the ware- (i) 4 Term Rep. 5S1. Vide the case of Hyde v. The Trent and Mersey Navigation Company, 5 Term Rep. 389. (207) What shall be deemed the act of God, in a legal sense, can more easily be deter- mined by reference to judicial decisions, in particular cases, than from any general reason- ing on the subject. Thus, where a vessel was beating up the Hudson, against a light and variable wind, and being near shore, and whilst changing her tack, the wind suddenly failed, in consequence of which, she ran aground and sunk ; it was held, that the sudden failure ot the wind was the act of God (inevitable accidents,) and excused the earner, there being no negligence on his part. Colt v. M'Mechen, 6 J. R. 160. *570 Chap. 5.] For the Safe Delivery of Goods. 570 house, they were destroyed by an accidental fire ; the Court of King's Bench determined, that whilst the goods remained in the warehouse the carrier was to be considered merely as a warehouseman, and therefore not responsible for the loss. (208) And Lord Kenyon Ch. J. said, " The case of a carrier stands by itself upon peculiar grounds ; he is held responsible as an insurer, and the rea- son given in the books (whether well or ill founded is immaterial here) is to prevent fraud. But I do not see how we can couple the character of the car- rier with that of the warehouseman, in which last the defendants are not liable here, they not having been guilty of laches." And Buller Just, observed, " The keeping of the goods in the warehouse is not for the convenience of the carrier, but of the owner of the goods ; for when the voyage to Manchester is performed, it is the interest of the carrier to get rid of them directly ; and it was only because there was no person ready at Manchester to receive these goods that the defendants were obliged to keep them." A delivery of goods to a common carrier, who accepts a box with goods and money in it, is liable to the full extent of the loss or damage happening to them, though he be ignorant of its contents ; unless he make a special ac- ceptance. Thus, in the case of Kenrig v. Eggleston,(i) which was an action upon the case against a country carrier for not delivering *a box with goods and money in it. The evidence was, that the plaintiff delivered the box to the carrier's porter, whom he appointed to receive goods for him, and told the por- ter that there was a book and tobacco in the box, and in truth there was an hundred pounds in it besides. And it was agreed by the counsel, and given in charge to the jury, that if a box with money in it be delivered to a carrier, he is bound to answer for it if he be robbed, although it was not told him what was in it. And so it was ruled in one BarcrofCs case, as Rolle said, where a box of jewels was delivered to a ferry-man, who knowing not what was in it, and be- ing in a tempest, threw it overboard into the sea, and resolved that he should an- swer for it. And Roll Just, directed the jury, " That although the plaintiff did tell him some things in the box only, and not of the money, yet he must answer for it ; for he need not tell the carrier all the particulars in the box. But it must come on the carrier's part to make special acceptance. But in respect of the intended cheat to the carrier, he told the jury they might consider him in damages." But in the case of Sir Joseph Tyly and others v. Morrice,(k) two bags of money sealed up were delivered to the defendant's book-keeper ; the plaintiff's servant told him that it was 2001., and desired a receipt for the money ; thereupon the book-keeper gave a receipt for his master to this ef- fect : " Received of, &c. two bags of money sealed up, said to contain 200/., which I promise to deliver on such a day at Exeter unto T. Davies, he to pay 10s. per cent, for carriage and risk." The carrier was robbed of this (t) Aleyn, 93. (k) Carth. 85. (203) See Piatt v. Hibbard, 7 Cowen, 497. rfckley v. Kellogg, 8 Cowen, 223. *571 571 Of Contracts with Common Carriers [Part III. and other money on Hounslow Heath in the night time, but he paid 200/. to Dames at Exeter. And now an action was brought against him in common form upon the custom of England, wherein the plaintiffs declared, that on such a day and place they had delivered unto the defendant 450/. to be carried from London to Exeter, &c. ; and at the trial it was proved, that there was full 450/. in gold and silver contained in those two bags at the time they were delivered to the carrier for 200/. And the question was, whether the carrier should an- swer for the whole money ? Holt Ch. J. was of opinion that he should answer for no more than 200/., (which was acknowledged that he had paid to Davies,) because in this case there was a particular undertaking by the carrier for the carriage of 200/. only, and his reward was to extend no farther than that sum, and it is the reward which makes the carrier answerable ; and since the plain- tiffs had taken this course to defraud the carrier of his reward, they had there- by barred themselves of that remedy which is founded only on the reward. So the jury was directed to find for the defendant. So a carrier is not answerable for the loss of goods from a risk to which the customer, when he delivered them, knew that they were likely *to be exposed, and of which circumstance he did not inform the carrier. (/) So, in the case of Gibbon v. Paynton and another, (m) which was an action against the Birmingham stage-coachman, for 100/. in money, sent from Birming- ham to London by his coach, and lost. It was hid in hay in an old nail-bag, the bag and the hay arrived safe : but the money was gone. The coachman had inserted an advertisement in a Birmingham newspaper, with a nota bene, " That the coachman would not be answerable for any money or jewels, or other valuable goods, unless he had notice that it was money or jewels, or valua- ble goods, that was delivered to him to be carried." He had also distributed hand-bills of the same import. It was notorious in that country, that the price of carrying money from Birmingham to London was 3r/. in the pound, the plaintiff was a dealer at Birmingham, and had frequently sent goods from thence : it was proved that he had been used for a year and a half to read the newspaper in which this advertisement was published ; though it could not be proved that he had ever actually read or seen the individual paper wherein it was inserted. A letter of the plaintiff 's was also produced, from whence it manifestly ap- peared that he knew the course of this trade, and that money was not carri- ed from that place to London at the common and ordinary price of the carriage of other goods : and it likewise appeared from this letter, that he was conscious that he could not recover by reason of his concealment. The jury found a verdict for the defendant. But the plaintiff afterwards moved for a new trial ; the Court, however, were clearly of opinion, that the verdict was right, and therefore refused the rule. Lord Mansfield Ch. J. distinguished between the case of a common carrier, and that of a bailee, and said : " The latter is only obliged to keep the goods with as much diligence and caution as he would keep (l)Edwards v. Sherratt, 1 East Rep. 604. (m) 4 Burr. 2298. "572 Chap. 5.] For the Safe Delivery of Goods. 572 his own : but a common carrier, in respect of the premium he is to receive, runs the risk of them, and must make good the loss, though it happen without any fault in him ; the reward making him answerable for their safe delivery. This action is brought against the defendant upon the foot of being a common carrier. His warranty and insurance is in respect of the reward he is to receive : and the reward ought to be proportionable to the risk ; if he makes a greater warranty and insurance, he will take greater care, use more caution, and be at the expence of more guards, or other methods of security : and therefore he ought, in reason and justice, to have a greater reward. Consequently, if the owner of the goods has been guilty of a fraud upon the carrier, such fraud ought to excuse the carrier, and here the owner was guilty of fraud upon him : the proof of it is over-abundant. The plaintiff is a dealer at Birmingham, the price of the carriage of money *from thence is notorious in that place : it is the rule of every carrier there ; it is fairly presumed that a man conversant in a trade knows the terms of it ; therefore the jury were in the right, in pre- suming that this man knew it ; the advertisement and hand-bills were circum- stances proper to be left to the jury, the plaintiff's having been used, for a year and a half, to read this newspaper is a strong circumstance for the jury to ground a presumption that he knew of the advertisement; then his own letter strongly infers his consciousness of his own fraud, and that he meant to cheat the carrier of his hire ; therefore, I entirely agree with the jury in their verdict." And Yates Just, said, " A carrier may make a special acceptance ; and that this was a special acceptance. By the general custom of the realm, a common car- rier insures the goods at all events : and it is right and reasonable that he should do so : but he may make a special contract ; or he may refuse to con- tract in extraordinary cases but upon extraordinary terms." And accordingly in the case of Clay v. Willan and others, («) where it ap- peared that the defendants were proprietors of a stage coach, by which the plaintiff sent a quantity of light guineas to be carried from Wakefield to Lon- don, 2s. were paid for the carriage, and 2d. for booking ; and the following were the printed terms on which the defendants performed their business : " Willan and Co. humbly beg leave to inform their friends and the public, that cash, plate and jewels, writings, or any such kind of valuable articles, will not be accounted for if lost, of more than 51. value, unless entered as such, and a penny insurance paid for each pound value, when delivered to the book-keeper, or other person in trust, to be conveyed by any carriage that inns at the above inn.'' The parcel was lost, and the action was brought for the amount. But at the trial, the plaintiff was nonsuited, it being proved that the person by whom he sent the parcel to the inn, knew of the above terms, but had not discovered the contents of the parcel to the book-keeper, nor paid for them as valuables. And upon a rule to show cause why the nonsuit should not be set aside, and a verdict entered for the plaintiff, on the ground that he was en- (m) 1 H. Bl. 29S. 70 *573 573 Of Contracts with Common Carriers [Part III. titled to recover as far as 5/. by the printed conditions ; the Court declared, that the sense of the printed conditions seemed to be, that the defendants were not liable to any extent, unless the parcel had been entered and paid for as valuable ; and therefore the rule for setting aside the nonsuit was dis- charged. So, in the case of Izett v. Mountain, (o) where the notice was in these words : " The proprietors of coaches from this inn will not be accountable for any par- cels, &c. of more value than 5/. unless entered as such, and paid for according- ly ;" it was determined, in an action against the carrier, that t he plaintiff was not entitled to recover any thing. *So, in the case of Nicholson and another v. Willan and another, (p) where it appeared, that the defendants were proprietors of two coaches travelling from Leeds through Nottingham, to London, the one a mail coach, the other a heavy coaeh which went out six hours later every day than the mail coach. The parcel in question, containing goods to the value of 58/. was (as a witness for the plaintiffs proved, and which the jury found to be true,) delivered and accepted to be carried by the mail coach. It appeared, however, to have been booked to go by the heavy coach, and to have been afterwards lost, but whether in a course of conveyance by the heavy coach, or out of the warehouse, or how otherwise, did not appear. It was proved, that the defendants had for some time before put up an advertisement on a board in their office at Notting- ham, and of which the plaintiffs were also proved to have had notice, in the following terms : " Take notice, that the proprietors of coaches transacting business at this office will not be accountable for any passenger's luggage, mon- ey, plates, jewels, watches, writings, goods, or any package whatever, (if lost or damaged,) above the value of 5/. unless insured and paid for at the time of delivery, and demanded in one month, after such damage is sustained." Lord Ellenborough Ch. J. delivered the judgment of the Court upon this case in fa- vour of the defendants. He said, " On the part of the plaintiffs it was con- tended that they were entitled to recover the 58/. the value of the goods, notwithstanding the notice given by the advertisement, which excludes from the carrier's general responsibility for the same at common law, all goods above the value of 51. unless the terms therein specified, namely, of insuring and paying for the goods at the time of delivery, should be complied with, and which was not done in this instance. The ground on which they so con- tended was that the loss in question was one not incurred in the course of their employment as carriers, but occasioned by an act of tortious conversion, in direct contravention of the terms on which the goods were deliver- ed to, and accepted by them. But to found this argument there was no other evidence but the mere fact of the booking of the goods for a diffe- rent coach, and a subsequent non-delivery, which can amount to no more than a negligent discharge of duty in their character of carriers, and not to an entire (o) 4 East Rep. 371. ()>) 5 East Rep. 507. *574 Chap. 5.] For the Safe Delivery of Goods. 574 renunciation of that character, and of the duties attached to it, so as to make them guilty of a distinct tortious misfeazance, in respect to the goods in ques- tion. It was also contended, on the part of the plaintiffs, that such a special acceptance of goods, by a common carrier, as is contained in the defendant's notice, is contrary to the policy of the common law, which has made com- mon carriers responsible to an indefinite extent, for losses not occasioned by the only excepted *causes of loss, viz. " The act of God, and the kind's ene- mies." But considering the length of time during which, and the extent and universality in which the practice of making such special acceptances of goods, for carriage by land and water, has now prevailed in this kingdom, under the observation, and with the allowance of courts of justice, and with the sanc- tion also and countenance of the legislature itself, which is known to have reject- ed a bill brought in for the purpose of narrowing the carrier's responsibility in certain cases, on the grounds of such a measure being unnecessary, in as much as the carriers were deemed fully competent to limit their own res- ponsibility in all cases by special contract : considering also, that there is no case to be met with in the bcoks, in which the right of a carrier thus to limit, by special contract, his own responsibility has ever been, by express decision, denied, we cannot do otherwise than sustain such a right in the present in- stance, however liable to abuse and productive of inconvenience it may be ; leaving to the legislature, if it shall think fit, to apply such remedy hereafter as the evil may require. In the absence, therefore of any evidence to sup- port the plaintiff's claim, as founded upon a supposed tortious conversion of the goods in question, and of any valid objection, in point of law, to the spe- cial terms of acceptance contained in the defendant's, the carrier's notice, we cannot help giving effect to those terms in the notice ; by which, in as much as the goods in question were above the value of 5/. and not insured and paid for at the time of delivery, the plaintiffs are not accountable for the same : and of course the verdict, given for the 5/. must be set aside, and a nonsuit entered." But in all cases of notice, it is necessary for the carrier to be prepared to prove, that the notice was put up in some conspicuous part of his office, in clear and legible characters, so that the party delivering the goods might have seen and known of it by common and ordinary observation. For in the case of Butler v. Heane,(q) which was an action against a carrier, to recover the val- ue of a trunk sent by the defendant's waggon from Cheltenham to London, but the same was lost. At the latter place a board was fixed in the office, giving the usual notice ; but at the former place, where it had been delivered, the on- ly mode of publishing this notice was by a hand-bill, stating in a large print, the advantages of sending by this waggon ; but the notice in a very small character at the bottom. Lord Ellenborough Ch. J. said, " This is not suffi- cient evidence of a special contract to limit the defendant's common law liabil- () 5. Of the Carrier's Lien on Goods for his Hire.] A carrier may retain the goods for his hire. As in the case of Skinner v. Upshaw,{q) where the (m) 8 Term Rep. 330. See also 1 Atk. 248. (o) 1 Ventr. 223. 5 Burr. 2327. « v p y v (p) Ywd v. Harbottle, Teak's Cas. N. P. 49. "(n)* 1 Ld. Raym. 271. 3 Salk. 290. 12 fo) 2 Ld. Rajrm, 752. Mod. 156. » 5Q4 584 Of Contracts with Common Carriers [Part III. plaintiff brought an action of trover against the defendant, being a common car- rier, for goods delivered to him to carry, &c. Upon not guilty pleaded, the de- fendant gave in evidence, that he offered to deliver the goods to the plaintiff, if he would pay him his hire ; but that the plaintiff refused, &c, and therefore he retained them. And it was ruled, by Holt Ch. J., that a carrier may retain the goods for his hire ; and upon this direction the defendant obtained a verdict. So, by general usage, a common carrier has a lien for his general balance. But such usage cannot be supported by a few recent instances of detention of goods by four or five carriers for their general balance ; for such a lien is not found- ed on any common law right, but only by contract, or general usage :(r) Nor can the carrier's lien in any case affect the right of the consignor to stop the goods in transitu, (s) *2. OF CONTRACTS WITH COMMON CARRIERS BY WATER. Owners and masters of general ships (t) and vessels carrying goods for hire on the high seas, or in navigable rivers, are considered as common carriers, and answerable against all events, except the acts of God, and of the King's enemies, in the same manner as common carriers by land are responsible for the loss or damage of goods entrusted to their care, (m) (210) Thus, in the case of Morsv. Slue,(v) which was an action against the defendant as master of a ship for the loss of certain goods entrusted to his care for safe delivery ; to which he pleaded, that in the night, whilst the ship lay in the river Thames, eleven persons came on board on pretence of pressing of seamen for the King's service, and by force seized and took the goods. And it was argued that there was not any negligence imputable to the master. But the Court held, that he was nevertheless liable, and gave judgment against him accordingly. So, in the case of Dale v. Hall,(w) which was an action upon the case against a shipmaster or keelman, who carried goods for hire from port to port ; the plaintiff did not declare against him as a common carrier upon the customs of the realm, but the declaration was, that the defendant, at the special instance of the plaintiff, undertook to carry certain goods, consisting of knives, and other hardware, safe from such a port to such a port, and that in consideration (r) Vide AspinaH v. Pkkfcrd, 3 Bos. & Pul. 44. n. a. Rushforlh v. Hadfield, 6 East Rep. 519. 7 East Rep. 224. (s) Oppenheim v. Russell, 3 Bos. & Pul. 42. Butler v. Woolcott, 2 New Rep. C. B. 64. (t) The term " general s/n'p" is used in contradistinction to a chartered ship, which is employed under a sealed instrument called a charter-party. See Abbott, 101. (it) Coggs v. Bernard, 2 Ld. Raym. 918. 1 Ventr. 238. Jones's Law of Bailments, 106,7. Abbott, 208. (»>) T. Ravm. 220. 1 Ventr. 190. 238. S.C. (if) 1 Wils. 3S1. See the case of Lyon and another v. Mells, 5 East Rep. 428., where it was determined, that a carrier by water for hire impliedly promises that the vessel shall be tight and fit for the voyage ; he is, therefore, answerable for damage arising from leakage, though he had given notice, " that he would not be answerable for any damage, unless occasioned by want of ordinary care in the master or crew of the vessel." (210) See Jlymnr v. Astor, 6 Cowen, 266. notes (203) (205) (•06). '585 Richards v. Gilbert, 5 Day, 415. See ante, Chap. 5.] For the Safe Delivery of Goods. 585 thereof the plaintiff undertook and promised to pay him so much money ; that the goods were delivered to the defendant on board his keel, and that the goods were kept so negligently by him that they were spoiled, to the plaintiff's dam- age. That upon the general issue, nun assumpsit, this cause came on to be tried before Justice Burnett, and the plaintiif proved, the goods were all in good order and clean when they were delivered on board, and that they were damaged by water and rusted to the amount of 24/. This was all the plain- tiff's evidence. For the defendant it was insisted at the trial, that as the plain- tiff had proved no particular negligence in the defendant ; that he might be per- mitted to give in evidence that he had taken all possible care of the gocds ; that the rats made a leak in the keel or hoy, whereby the goods were spoiled by the water coming in ; that they *pumped and did all they could to prevent the goods being damaged, which evidence the Judge permitted to be given, and thereupon left it to the jury, who found a verdict for the defendant. But upon a rule to show cause why there should not be a new trial, the Court granted the rule, and Lee Ch. J. said, " I am of opinion that the evidence given for the defendant was not admissible. The declaration is, that the defendant un- dertook for hire to carry and deliver the goods safe ; and the breach assigned is, that they were damaged by negligence : this is no more than what the law says ; every thing is a negligence in a carrier or hoyman that the law does not excuse, and he is answerable for goods the instant he receives them into his custody, and in all events, except they happen to be damaged by the act of God, or the King's enemies ; and a promise to carry safely, is a promise to keep safely." So, in the case of Smith v. Shepherd,(x) which was an action brought against the defendant as master of a vessel navigating the river Ouse and Humhcr from Selby to Hull, by the plaintiff whose goods had been wet and spoiled ; at the trial whereof it appeared in evidence, that at the entrance of the harbour at Hull there was a bank, on which vessels used to lie in safety, but of which a part had been swept away by a great flood some short time before the misfor- tune in question, so that it had become perfectly steep instead of shelving towards the river ; that a few days after this flood a vessel sunk by getting on this bank, and her mast, which was carried away, was suffered to float in the river tied to some part of the vessel : and that the defendant upon sailing into the harbour struck against the mast, which, not giving way, forced the defen- dant's vessel towards the bank, where she struck, and would have remained safe had the bank been in its former situation, but on the tide ebbing her stern sunk into the water, and the goods were spoiled : upon which the defendant tendered evidence to show that there had been no actual negligence : Mr. Jus- tice Heath, before whom the cause was tried, rejected the evidence ; and he fur- ther ruled that the act of God, which could excuse the defendant must be im- mediate ; but that this was too remote ; and directed the jury to find their ver- (.t) At the Lent Assizes for Yorkshire, 1 795. Abbott on Shipping, 23-2. *586 533 Of Contracts with Common Carriers [Part III. diet for the plaintiff ; and they accordingly did so. The case was afterwards submitted to the consideration of the Court of King's Bench, who approved of the direction given by the learned Judge at the trial, and the plaintiff succeed- ed in the cause. There does not appear to have existed in this case any bill of lading, or other instrument of contract ; and the question therefore depended upon general principles, and not upon the meaning of any particular words or exception. The contract for the conveyance of merchandize in a general ship is that by which the master and owners of a ship, destined on a particular *voyage, en- gage separately with various merchants unconnected with each other to con- vey their respective goods to the place of the ship's destination. And this con- tract, although usually made personally with the master, and not with the own- ers, is considered in law to be made with them also, and that both he and they are separately bound to the performance of it.(?/) When goods are sent on board the ship, the master, or person on board acting for him, usually gives a receipt for them, and the master afterwards signs and delivers to the merchant sometimes two, and sometimes three parts of a bill of lading, of which the merchant commonly sends one or two to his agent, factor, or other person to whom the goods are to be delivered at the place of destination, that is, one on board the ship with the goods, another by the post or other conveyance ; and one he retains for his own security. The master should also take care to have another part for his own use. The terms of exception in the old form of a bill of lading were : " The dangers of the seas excepted." But these terms were altered some years ago in consequence of an alarm taken by the ship-owners at the decision of the cause of Smith v. Shepherd, just mentioned ; and of late the exception is usu- ally made in the following words : (" The act of God, the King's enemies^ fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever excepted.'''') But in the case of ships homeward bound from the West India Islands, which send their boats to fetch the cargo from the shore, there is introduced a saving out of this excep- tion " Of risks of boats, so far as ships are liable thereto." And in that case the whole clause is as follows : " The act of God, the King's enemies, fire, and all and every other dangers and accidents of the seas, rivers and navigation oj what nature and kind soever, save risk of boats, so far as ships are liable thereto, excepted.' 1 '' In general the name of the consignee is usually mentioned in the bill of lading, but sometimes the shipper or consignor is himself named as consignee, and the engagement is expressly to deliver to him or his assigns ; and sometimes no person is named as consignee, but the terms of the instrument are, " To be delivered, &c. unto order, or assigns," which words are generally understood to import an engagement on the part of the master to deliver the goods to the person to whom the shipper or con- signor shall order the delivery, or to the assignee of such person, (z) (y) Abott on Shipping, 102. 108. (z) Ibid. 203, 4. *587 Chap. 5.] For the Safe Delivery of Goods, 587 Upon the general exception of perils of the sea, it was determined in the case of Pickering v. [Barclay, (a) where the ship had been overpowered and plundered on the high seas by pirates, that the owners were not answerable for the loss of goods under such circumstances, *be cause it is said that the taking by pirates was accounted a peril of the sea. So, in the case of Bever v. Tomlinson,{b) which came before the Court of King^s Bench, a short time before the late alteration of the bill of lading, and which was an action brought to recover the value of goods, for which the master had signed a bill of lading containing an exception only of the perils of the sea, although made during the time of a war, and which goods were lost in consequence of the ship being designedly struck by the vessel of an enemv • it was doubted by the Court, whether a loss so occasioned, were within the meaning of this exception ; and it is said that the cause never proceeded to a final judgment. So, in the case of Buller v. Fisher,(c) where it appeared that the ship in which the goods were conveyed, was run down in day-light, and not in a tem- pest, by one of two other ships that were sailing in an opposite direction to her, both of which kept to windward, as did also the defendant's ship ; but it was matter of so much doubt whether the master of the defendant's ship ought to have understood the course which the others would pursue, and have borne to leeward to avoid them, that no blame was considered to be imputable to him for not having done so, nor was any fault attributable to the persons, who had the conduct of either of the other ships. This loss was therefore held to fall within the meaning of this exception, and to have happened by a peril of the sea. But in the case of robbery, leakage, fire, or where the ship was accidentally driven against a bank at the entrance of a harbour, the courts, we have already seen,(e?) have determined that these accidents do not fall within the terms of the general exception. So, it is said,(e) that not every loss proceeding di- rectly from natural causes, is to be considered as happening by a peril of the sea. If a ship perish in consequence of striking against a rock or shallow, the circumstances, under which the event takes place, must be ascertained in or- der to decide, whether it happen by a peril of the sea or by the fault of the mas- ter ; if the situation of the rock or shallow is generally known, and the ship not forced upon it by adverse winds or tempest, the loss is to be imputed to the fault of the master. On the other hand, if a ship is forced upon such a rock or shallow by adverse winds or tempest, or if the shallow was occasioned by a sudden and recent collection of sand in a place, where ships could before sail in safety ; the loss is to be attributed to the act of God or the perils of the sea. In the case of Edwards and others v. Sherratt,(f) where the defendant, (a) 2 Rol. Abr. 248. pi. 10. Sty. 132. Term, 40 Geo. 3. Abbott, 236, 238. See also Barton v. Wolliford, Comb. 5*6. S. P. (d) Ante, 586. (6) East. Term, 36 Geo. 3. Abbott, 237. (e) Abbott, 239. (c) Sittings at Guildhall after Mich. (/) 1 East Rep. 604. *588 583 Of Contracts with Common Carriers [Part III. a common carrier from Birmingham through Wolverhampton to *Radford, employed distinct boats to carry to and from Birmingham to Wolverhampton which passed on different days. The plaintiff knowing this, and having corn at Wolverhampton which was threatened to be seized by a mob, wrote to the defendant at Birmingham to send a private boat quickly on account of the state of the country, to take the corn to Birmingham, to which the defendant not returning any answer, and plaintiff fearing to wait till the day the defen- dant's boat would, in the usual course of employment, go from Wolverhamp- ton to Birmingham, stopped the boat passing by from Radford to Birmingham, and without disclosing the circumstances to the boatman, prevailed on him to take the corn on board, and then despatched him forward in the nigh t, having privately sent orders to open the lock at any time when he should pass. After a verdict for the defendant, negativing that the corn was delivered in the usual course of dealing as a common carrier, the Court held that the verdict might be sustained, either on the general ground of fraud in the plain- tiff, or on the circumstances of the case, furnishing altogether evidence of a tacit stipulation on the part of the defendant to do the best he could, but not be answerable as a common carrier for the violence of the mob ; or because it did not appear that the boatman, whose ordinary employment was between Radford and Birmingham had authority from the defendant to accept the goods at Wolverhampton for Birmingham, much less to accept them in that manner. If a common carrier from A. to C. receives goods for delivery at B. an in- termediate place, at which he safely arrives, and has an opportunity of deliver- ing the goods, but omits so to do ; and the vessel and goods in their passage to C. are unavoidably lost, he is answerable for the value of the goods, though he accepts them under a particular notice, which limits his responsibility to the want of ordinary care, (g) As soon as the master accepts the goods on board his ship, his and the own- er's responsibility commence. But the manner of delivering the goods, and consequently the period at which the responsibility of the master and owners will cease, will depend upon the custom of particular places , and the usage of particular trades. (A) Thus, a hoyman who brings goods from an out-port to the port of London, is not discharged by landing them at the usual wharf, but is bound to take care and send them out by land to the place of consign- ment. And if the consignee require to have the goods delivered to himself, and direct the master not to land them on a wharf at London, the master must obey the request ; for the wharfinger has no legal right to insist upon the goods being landed at his wharf, although the vessel be moored against it. But in the case of ship3 coming from a foreign country, delivery at *a wharf in London discharges the master ; if the consignee send a lighter to fetch the goods, the master of the ship is obliged by the custom of the River Thames to watch them in the lighter, until the lighter is fully laden, and until the regular (g) Ellis v. Turner, 8 Term Rep. 531. (*) Abbott, 229. *589 # 590 Chap. 5.] For the Safe Delivery of Goods. 590 time of its departure from the ship is arrived ; and he cannot discharge himself from this obligation by declaring to the lighterman that he has not hands to guard the lighter, unless the consignee consent to release him from the perform- ance of it. In the case of ships coming from Turkey, and obliged to per- form quarantine before their entry into the port of London, it is usual for the consignee to send down persons at his own expence, to pack and take care of the goods ; and therefore where a consignee had omitted to do so, and goods were damaged by being sent loose to shore ; it was held, that he had no right to call upon the master of the ship for a compensation. (?) A common carrier is not responsible where the servant of the consignee or owner is sent with the goods for the purpose of protecting them. (k) And in the case of fire, the owners are wholly exempt by statute 2G Geo. 3. c. 86. s. 2. from making good any loss or damage happening to goods by reason thereof ; and in other cases of loss the legislature have limited their responsi- bility. And by the third section of the act it is enacted, " That no master, owner, or owners of any ship or vessel shall be subject or liable to answer for or make good, to any one or more person or persons, any loss or damage, which may happen to any gold, silver, diamonds, watches, jewels, or precious stones, which, from and after the passing of this act, shall be shipped, taken in, or put on board any such ship or vessel, by reason or means of any robbery, embezzlement, making away with, or secreting thereof, unless the owner or shipper thereof shall, at the time of shipping the same, insert in his bill of lading, or otherwise declare, in writing, to the master, owner or owners of such ship or vessel, the true nature, quality, and value of such gold, silver, diamonds, watches, jewels, or precious stones." By the stat. 7 Geo. 2. c. 15. it is enacted, " That no person or persons who is, are, or shall be owner or owners of any ships or vessels shall be subject or liable to answer for, or make good to any one or more person or persons, any loss or damage by reason of any embezzlement, secreting, or making away with by the master or mariners, or any of them, of any gold, silver, diamonds, jew- els, precious stones, or other goods or merchandize, which shall be shipped, taken in, or put on board any ship or vessel, or for any act, matter, or thing, damage or forfeiture, done, occasioned, or incurred by the said master or mari- ners, or any of them, without the privity and knowledge of such owner or owners, further *than the value of the ship or vessel, with all her appurtenances, and the full amount of the freight due, or to grow due, for and during the voyage wherein such embezzlement, &c. shall be committed. And the pilotage act 52 Geo. 3. c. 39. contains a further exception to the liability of ship-owners, by relieving them from any responsibility for any loss or damage occasioned by the neglect or incapacity of any pilot, who may be taken on board in pursuance of the provisions of that act. And the last act 53 Geo. 3. c. 159. which was passed to amend the two first acts, enact in sub- (t) Abbott, 230. (k) East India Company v. Pullen, 2 Stra. 690. 72 *591 591 Of Contracts with Common Carriers, &c [Part III. stance first, that owners and part owners of ships shall not be liable to make good any loss or damage to any goods or merchandize, laden on board their ships, beyond the value of the vessel and freight, provided such damage should be occasioned without their fault or privity. The object of this first clause was to give a protection to part-owners as well as to owners. The term part-own- ers is omitted in the preceding statutes, and introduced for the first time in the present, and it seems to have been the object of the legislature, by the first clause to explain the words, " owner or owners" used in the two previous acts, and to give protection to part-owners, which might not perhaps have been extended to them under the general words, owner or owners in the 7 Geo. 2. and 26 Geo. 3. Secondly by the next section there is a legislative exposition of what is to be considered as freight, which the previous statutes had left in general and loose terms. The value of the carriage of goods and merchan- dize, though belonging to owners and part-owners, is to be considered within the meaning of the term freight ; and also the hire of the vessel due, or to grow due by virtue of any contract, whether on behalf of his majesty, or of any person or persons or any body politic or corporate. Thirdly, the act then provides for separate losses ; but declares that nothing therein contained shall be taken to diminish the responsibility to which any master or mariner may be owner or part- owner. Fourthly, the act next proceeds to except the owners of lighters, barges, boats, &c. employed in inland navigation, and ships and vessels not duly registered. Such are the principal clauses of this act ; the remaining sections of which re- late to proceedings against owners and part-owners in courts of equity, (k) In a very late case upon this statute, it has been determined by the Court of King's Bench that the meaning of the 1st and 4th sections, taken conjunctively, was ; 1 . That in an action against several joint defendants, as ship owners, for damages sustained by the loss of goods laden on board their ships, they were not liable in that character beyond the value of the ships and freight due, and to grow due ; although the loss were occasioned by the misconduct of one of the defendants, who was both master and part-owner. 2. That the value *of the ship was to be calculated at the time of the loss, and not at the time of the commencement of the voyage. 3. That in calculating the value of freight due, or to grow due, the money actually paid in advance was to be includ- ed.^) (211) (k) 2 Holt on Shipping, 109. 1st edit. (/) Wilson v. Dickson, 2 Barn. & Aid. 2. (211) The owners of vessels are notliable as common carriers, for goods shipped on deck, and thrown overboard in a storm for the preservation of the ship. Smith v. Wright, 1 Caines, 43. But, where the master of a vessel received on board certain goods, to be trans- ported from Hartford to Boston, at customary freight, which were stowed on deck, and ejected during the voyage, by reason of tempestuous weather ; it was held, that the own- ers were liable for the loss ; but if such stowage was authorized by the consent of the shipper, or by custom, it would be otherwise. Barber v. Brace, 3 Conn. Rep. 9. If a car- rier undertake to transport goods by water, for hire, he is bound to provide a vessel, sufficient *592 Chap. 5.] Of Contracts with Wharfingers. 592 3. OF CONTRACTS WITH WHARFINGERS TO SHIP GOODS, fee. Where goods are sent oa the coasting trade, and the usage is to deliver them on the wharf to the mate of the 6hip by which they are to be carried ; if they are delivered to the mate, the wharfinger's responsibility is at an end, and he is not liable, though the goods are lost from the wharf before they are ship- ped.(212) Thus, in the ease of Cobban and another v. Downe,{m) which was an action brought against the defendant, who was a wharfinger, to recover the value of a parcel of goods which had been sent to the defendant's wharf to be forwarded to Inverness, in Scotland. The plaintiff proved the sending of four trusses to the wharf ; one of which was lost. They were directed to be sent by the ship George, bound for that port. The defendant proved, that the goods were brought to the wharf, and laid at the door of the counting-house ; that while they lay there, the mate of the George was called ; that he came ; and the truss in question was delivered to him ; but what became of it afterwards did not appear. It was contended, on the part of the defendant, that it was no part of the duty of a wharfinger, where goods are to go coastwise, either ac- cording to general usage, or the particular usage of the defendant's wharf, to see the goods actually put on board : that they were, in many instances deliver- ed from the warehouse, or from the wharf to the mate of the vessel, to be by him and his crew put on board the vessel ; and that on the deliv- ery to them, all further responsibility on the part of the wharfinger was at an end. And several wharfingers were called, who proved the invaria- ble usage to be so : that goods, which were not to go coastwise, were de- livered from the carts on board the ship : that when goods came to the wharf, and no ship was then at the wharf bound for the port to which the goods were directed, they were warehoused ; and on the arrival of the first ship, they were delivered to the mate of the vessel : but when a vessel was there, they were immediately delivered to him to be put on board ; that be- fore the shipping of foreign goods, the wharfinger charged for wharfage and shipping ; but for shipping goods coastwise they charged for wharfage only, eonsidering that they had nothing to do with the shipping, being satisfied with a delivery to the mate, or other officer on board the ship, as putting an end to their responsibility. Lord Ellcnborough Ch. J. said " This is an ac- tion charging the defendant in his character of a wharfinger. What the •duty of a wharfinger is, is to be measured by the usuge and practice of oth- ers in similar situations, or his known and professed liability. Every man con- Cm) 5 Esp. Rep. 41. in all respects, for the voyage, well manned and furnished with sails, anchors and all neces- sary furniture ; and if a loss happen through a deficiency in any of these respects, the car- rier must make it good. Bell v. Reed, 4 Binn. 137. (212) See Piatt v. Hibbard, 7 Cowen, 497. *592 593 Of Contracts ivith Warehousemen. [Part III. tracts with the public according to the known and ascertained extent of the trade or business in which he is engaged. The defendant has proved that, by established usage, the goods are delivered by the wharfinger to the mate and crew of the vessel which is to carry them ; from which time it has been considered that their responsibility is at an end. Undoubtedly where the re- sponsibility of the ship begins, that of the wharfinger ends ; and a delivery to the ship creates a liability there : but the delivery must be to an officer or person accredited on board the ship ; it cannot be delivered to the crew at random : but the mate is such a recognized officer on board the ship, that delivery to him is a good delivery-, and the responsibility of the ship attaches, if the jury believe that the mate received the goods, as stated by the defen- dant's witnesses. It has been said, that they were lost on the wharf before they were put on board ; but if they were once well delivered to the mate, the subsequent loss cannot affect the wharfinger : they are delivered into the care of the mate ; and his negligence cannot revive any responsibility on the part of the wharfinger. I think therefore the usage has been sufficiently proved; that by a delivery to the mate of the ship the wharfinger's responsibility was at an end ; and that the only question for the jury to decide was, was the delivery made of the goods to the mate of the George, by which ves- sel the goods were ordered to be sent ?" The jury under this direction found a verdict for the defendant. (213) 4. Of Contracts with Warehousemen.] — A warehouseman is bound on- ly to take reasonable and ordinary care of goods deposited in his warehouse.(214) Thus, in the case of Cailiff znA. another v. Danvers,(n) which was an action of assumpsit against the defendant as a warehouseman for negligently keeping a quantity of Ginseng, which had been deposited by the plaintiff in his ware- house ; whereby it had been destroyed and spoiled. It appeared that the box containing the Ginseng had been opened, by the plaintiff's directions, for the purpose of showing it to persons who were about to purchase it ; that several persons looked at it on different days, and every night the lid of the box was shut down, but not nailed. That many cats were kept in the ware- house, and all possible care taken to destroy vermin ; notwithstanding which the rats had got at the Ginseng, and destroyed it. Lord Kenyan Ch. J. said : " that a warehouseman was only obliged to exert reasonable diligence in taking care of the things deposited in his warehouse : that he was not, like a carrier to be considered as an insurer, and liable for all losses happening other- wise than by the act of *God, or the King's enemies ; and that the defendant (n) Peake'sCas.N. P.114. (213) A wharfinger who has not been directed to store goods, is not liable for the loss of them upon his wharf, after they have been weighed ; because the wharfage paid is not a con- sideration for the safe keeping of the goods. Pezant v. Crawford, 1 M'Cord, 334. (214) See Piatt v. Hibbard, 7 Cowen, 497. '594 Chap. 5.] Of Contracts with Warehousemen' 594 in the present case, having exerted all due and common diligence for the pres- ervation of the commodity, was not liable to any action for this damage which he could not prevent." The plaintiff was therefore nonsuited. A warehouseman, however, is liable for goods lost or injured, from the time the crane is applied to raise them into the warehouse ; and it is no defence that they were injured by falling into the street from the breaking of the tackle, the carman who brought the goods having refused the offer of slings for further security. Thus, in the case of Thomas and others v. Day,(o) the declaration stated, that in consideration that the plaintiff had sent and de- livered six packs of linen to be housed, lodged and warehoused, in a certain warehouse of the defendant, the defendant undertook safely and securely to take care of, lodge and warehouse them : the breach assigned was, that he did not safely and securely lodge, house, and warehouse them ; that two packs of linen were damaged and spoiled by being left in the open street, after falling on the pavement, and thereby wetted and spoiled. The facts proved were, that the plaintiffs were shipping-brokers ; the defendant was a warehouseman ; that on the 2d July they had sent the six packs of linen in question to the de- fendant's warehouse: that the person sent saw the defendant's clerk, who gave him the tackle which he applied to the packages; and removed five into the warehouse ; and the sixth was left in the crane when he went away, the defendant's servant having paid the carriage. Another witness then proved, that in a short time after, going by, he found one of the packs in the street which was drenched in water, and seventy-nine pieces of linen spoiled. The defendant denied that he was liable to make good the damages, on the ground that the accident had happened from the cords of the packs break- ing, his servant having offered to give slings to the carman to make them more secure ; which had been refused : that it was the duty of the person sending the goods to see that they were well-corded and secured, so that if any accident happened from their breaking, the warehouseman was not liable. These facts he proposed to prove, and in addition thereto, that ware- housemen did not consider themselves as liable by usage, under the circum- stances, above stated. But Lord Ellenborough Ch. J. said : " The whole ques- tion turned upon the single point of, when the warehouseman's liability com- menced, and the agency of the carman ended 1 For until the goods were de- livered to the warehouseman, the carman was to be considered as the agent of the person sending them ; but when the warehouseman took them into his own hands, the moment the warehouseman applied his tackle to them, from that moment his liability *commenced. It has been urged, that the defendant's servants offered him the use of slings. These are provided by the defendant ; and he is bound to see that they are of sufficient strength and fit for the pur- pose ; and he should not apply his tackle unless that could be performed which he was bound to do. If the slings were necessary, the refusal of the carman, (o) 4 Esp. Ron. 262. *595 595 Of Contracts with Warehousemen. [Part III. or his declining the use of them, will not exempt the warehouseman ; he ought to have insisted on the carman's using them ; and if he refused, he should have repudiated those goods and refused to accept them. It appears here, that the damaged pack of linen was in the crane, and lifted from the cart, it was then in his possession ; and being so, I think, in point of law, he is liable for the loss." The jury accordingly found a verdict for the plaintiff. ' { Chap. 6.] Of Husband and Wife ; and of Contracts, fyc 596 ♦CHAPTER VI. OF HUSBAND AND WIFE : AND OF CONTRACTS MADE BY THE WIFE BE- FORE AND AFTER MARRIAGE ; AND OF THEIR RESPECTIVE LIABIL- ITIES : AND ALSO OF CONTRACTS MADE WITH PERSONS LIVING TO- GETHER AS MAN AND WIFE. By the law of England, when a man and woman marry, all the personal prop- erty of the wife passes to the husband, together with the right of enforcing any contracts which may have been made with her, and suing for all debts owing to her prior to the marriage ; and as the law vests all her property in him, so it equally casts upon him all liabilities, in respect of contracts made, or debts contracted by her whilst she was unmarried. So, he is bound by any contracts made by her with his consent and authority during marriage. And, as a general rule, he is also bound by her contracts for necessaries supplied for her necessary support and maintenance. I propose to consider the subject of the present chapter, in the following order, viz. 1. OF CONTRACTS MADE, AND DEBTS INCURRED BV THE WIFE BE- FORE MARRIAGE. 2. OF CONTRACTS MADE BY THE WIFE DURING MARRIAGE, WITH THE AUTHORITY OF HER HUSBAND AS HIS AGENT : AND OF CONTRACTS MADE BY A FEME COVERT, SOLE TRADER, &c. 3. OF CONTRACTS MADE BY THE WIFE DURING THE EXILE OR BANISH- MENT OF HER HUSBAND. 4. OF CONTRACTS FOR NECESSARIES FURNISHED THE WIFE DURING THEIR COVERTURE. •596 597 Of Husband and Wife ; and of Contracts made [Part III. *5. OF CONTRACTS MADE BY A WOMAN LIVING WITH A MAN AS HIS WIFE. 6. HOW HUSBAND AND WIFE MUST SUE AND BE SUED. 1. OF CONTRACTS MADE, AND DEBTS INCURRED BY THE WIFE BE- FORE MARRIAGE. All the personal estate, as money, goods, cattle, household furniture, &c, that were'the property, and in the possession of the wife at the time of the marriage is, bylaw, vested in the husband ; and he alone has the power of disposing of the whole or any part of it without her consent; and whatever part remains undis- posed of at his death, shall go to his executors or administrators and not to the wife, though she survive him.(a)(215) But choses in action, as debts due to the wife, which are to be demanded by action, though they are likewise so far vest- ed in the husband, that he may reduce them into possession ; yet if he dies before any alteration made by him, they shall go to his wife, nor shall they, without such alteration, survive to the husband upon the death of the wife, or he have any right to them, but as he may be entitled, as administrator to his wife. (b) (2 16) The husband is also entitled to whatever his wife earns during (a) Bac. Abr. tit. Baron and Feme, C. 3. (6) Ibid. See also Co. Lit. 351. a. b. n. 1 3 Mod. 186. (215) See TJdall v. Kenney, 3 Cowen, 590. Legg v. Legg, 8 Mass. Rep. 99. Fitch v. Jlyer, 2 Conn. Rep. 143. Griswold v. Penniman, Id. 564. Peyre v. Jervey, 2 Des. 221. Forrest v. Warrington, Id. 254. Upshaio v. Upshaw, 2 Hen. &.Munf. 381. Dade v. Alex- ander, 1 Wash. 30. J\V Cargo v. Callicott, 2 Munf. 501. (216) See Wallace v. Talliaferro, 2 Call, 447. Whitaker \. Whitaker, 6 J.R. 112. Peyre v. Jervey, 2 Des. 221. But since the determination of the preceding cases, the subject about which they are conversant, has come more fully into discussion, before the court of appeals in South Carolina; and it has been repeatedly decided by that court, that the personal estate of the wife, not actually reduced to possession during the coverture, does not belong to the husband, exclusively; but is distributable under the statute of February, 1791. Byrne's Adm. v. Stewart's Adm. 3 Des. 135, 147, 148. Lynah, Guardian of Elms, v. Hughes, 3 Des. 155. Speights v. Halloivay, Id. 138. note. See Baker v. Hall, 12 Ves. 497. As a general rule, the choses in action of the wife, survive to her, unless the husband reduce them to pos- session, or assign, or release them, during coverture : And the same rule is observed, where the husband and wife, during coverture, become jointly entitled to a chose in action. Lodge v. Hamilton, 2 Serg. & R. 491. Wallace v. Talliaferro, at supra. Cornwall v. Hoyt, 7 Conn. Rep. 420. An assignment by the husband, of a debt actually and presently clue to the wife, is valid, and devests, at least in equity, the title of the wife. Cassell v. Carroll, 11 Wheat. 134. So, the husband may release the damages for any species of injury done to the wife. Southicorlh v. Packard, 7 Mass. Rep. 95. The choses in action of the wife, accruing during coverture, vest absolutely in the husband and he may sustain an action in his own name, for their recovery : Thus, a share of personal intestate estate, accruing in right of the wife, during coverture, vests in the husband absolutely, even before distribution. Griswold v. Pen- niman, 2 Conn. Rep. 564. And the same rule will apply, where the testator gave his daugh- ter, afeme covert, a legacy, directing the interest to be paid to her during coverture, and the # 597 Chap. o'.] By the Wife before or after Marriage. 597 coverture.(c) Therefore, a note payable to a feme sole, or order, who after- wards marries, becomes the property of her husband, and she cannot legally indorse it over to a stranger during coverture. (d)(217) But where an estate is vested in trustees for the separate use of the wife, the husband cannot maintain any action at law against a stranger for wrongfully receiving the rents and pro- fits thereof.(e) With regard to debts contracted by the wife before marriage, the law has provided, that if a man marries a woman who is in debt to divers persons, the husband and wife, during coverture, shall be sued for the recovery of them . but if the wife die, and the creditors have neglected to recover their debts, the husband shall not be charged therewith after the death of his wife ; for the debts must be recovered in the life-time of the wife ;(/) and if the wife survives her husband, she alone is liable, and not his representatives. («•) *2. OF CONTRACTS MADE BY THE WIFE AFTER MARRIAGE, WITH THE AUTHORITY OF HER HUSBAND AS HIS AGENT: AND OF CONTRACTS MADE BY A FEME COVERT AS A SOLE TRADER. A married woman has no power to make a contract without the authority or assent of her husband, precedent or subsequent, express or implied ; therefore if she enters into any contract without such authority or assent, it is absolutely void.(A) (219) So, if the wife sell or dispose of the goods of her husband, without his assent, the sale is void, and the husband may recover them back by action of trover.(i) So, where the wife buys goods without the consent of her husband, he is not chargeable for them. (A) So, a note or bill drawn, or indors- ed by a married woman, is void.(Z) So, where the executor of a feme covert, who lived apart from her husband, (c) Bui. Ni. Pri. 136. (/i) Ruled by all the judges in the case of (d) 3 Wils. 5. Stra. 516. 10 Mod. 246. Manby v. Scott, 1. Sid. 120. 1 Lev. 4. 1 Mod. (ej Divisonv. Atkison, 5 Term Rep. 434. 128. (/) F. N. B. 120. F. Bac. Abr. tit. Bar- (t) Com. Dip. tit. Baron and Feme, on and Feme, F. Com. Dig. tit. Baron and (.',) 4 Leon. 42. Feme, N. and 2 C. (/) 3 Wils. 5. Sec also 1 Stra. 516. 1 (§•) 1 Campb. Rep. 189. East Rep. 432. 3Esp. Rop. 266. principal afterwards ; the husband alone is entitled to receive the interest ; and his receipt is sufficient evidence of payment. Filch v. Ayer, 2 Conn. Rep. 143. (217) A promissory note given to a feme covert, though it be for a debt due to her before coverture, is legally payable to the husband, and the property vests absolutely in him. Shutllesivorth v.Noyes, 8~Mass. Rep. 229. The incapacities offemes covert, provided by the common law, have relation to their civil rights, and are intended to ensure their protection and promote their interests; but do not affect their political rights, nor prevent them from acquiring or losing a national character. Rights of the latter description do not stand upon the doctrines of municipal law merely, but are founded upon the more general principles of the law of nations. Shanks v. Dup'ont, 3 Peters, 242, 248. (219) The principle is well settled, that the husband is not bound by the contracts of his wife, unless by some act or declaration, prior or subsequent to the time of contracting, his consent may be fairly inferred. Webster v. JWGhuus, oBinn. 236. Per Tilghman, Ch. J. 73 *598 598 Of Husband and Wife ; and of Contracts made [Part III. and traded as a feme sole, is not liable to be sued at law for debts contracted by the wife during her coverture, whilst living in a state of separation, (m) In some modern cases, (n) it was indeed decided, that a married woman liv- ing apart from her husband, and having a separate maintenance secured to her by deed, might contract and be sued as a feme sole, and that her second hus- band was liable for debts contracted in the life-time of her former husband, dur- ing the state of separation. But in a subsequent case of Marshall v. Rut' ton,(o) these decisions were reviewed and fully considered; and after several arguments at the bar, it was solemnly determined by all the judges, that a feme covert cannot contract and be sued as a feme sole, even though she be living apart from her husband, having a separate maintenance secured to her by deed. But a contract made by a married woman with the assent of her husband, is good ; and shall be taken as the contract of the husband, (p) So, where a wife traded by her husband's consent, and gave bills for money, and he received the profits. The wife borrowed 100Z. and died, and a bill was brought against the husband for the money. An issue was directed to try, whether the mon- ey was borrowed for carrying on the trade ; for if it were, the husband should be decreed to pay it.(y) So, if the wife of A. receives 101. to the use of B., and this comes to the profit of A. in a convenient and necessary way, though it was without A.'s order or consent after, yet A. is liable to this debt, and the count *or declaration shall be of a receipt by the hands of the baron.(r) Again, if a feme covert, without any express authority from her husband, con- tract with a servant by deed, the servant, having performed the service stipulat- ed, may maintain assumpsit against the husband. (5) So, where a husband permits his wife to act for him in any department or business, her contracts and acknowledgments shall bind the husband, (t) (220) Of Contracts made with a Feme Covert sole Trader.] — By the cus- tom of London if a feme covert exercises a trade in which her husband does not at all concern himself, she may be sued as a feme sole, in the city courts, for debts contracted by her in the carrying on of that trade ; and if she has not goods that are not her husband's, she must be imprisoned till she satisfies her creditors ; and as she may be sued, so she may sue as zfe?ne sole for debts ow- ing to her, in the way of her trade, within the city, (w) (221) But a feme covert (m) Clayton v. Mams, 6 Term Rep. 604. a. pi. 20. 3 Bulst. 90. 1 Stra. 80. (n) Vide Corbett v. Podnitz, 1 Term (q) 2 Freeman's Rep. 215. pi. 298. Rep. 5. (r) Jenk. 4. pi. 5. (0) 8 Term Rep. 545. See also Hatchet (s) White v. Cuyler, 6 Term Rep. 176. v. Baddeley, 2 Bl. Rep. 1079. (t) Emerson v. Blonden, 1 Esp. Rep. 1 42. (p) 4Vin.Abr. tit. Baron and Feme. E. (u) 10 Mod. 6. (220) See Fenner v. Lewis, 10 J. R. 38. Spencer v. Time, Addis. 316, 319. But an acknowledgment by a feme covert, is not sufficient to establish an account against her husband, though it be for goods furnished her before the marriage. Shepherd's Ex. v. Starke, 3 Munf. 29. See further, Webster v. M'Ginnis, 5 Binn. 235. Rotch v. Miles, 2 Conn. Rep. 638. (221) A feme covert, acting as a sole trader, may execute a bond which shall be obligatory uDon her ; but this power is restricted to such bonds as relate to, or are in some manner *599 Chap. 6.] By the Wife before or after Marriage. 599 sole trader cannot sue or be sued as v. feme sole, even upon the custom of Lon- don, in the superior courts at Westminster; but her husband must be joined for conformity, (u) 3. OP CONTRACTS *MADE WITH THE WIFE DURING THE EXILE OR BANISHMENT, &c. OF HER HUSBAND. We have already seen that the contracts of a. feme covert are in general void, unless made with the assent of the husband. But in the case of banishment, abjuration, or exile, the law considers the husband as civilly dead, and therefore permits the wife to contract, and sue or be sued as a. feme sole; for it would be unreasonable that she should be remediless on her part, and equally hard upon her creditors, who not having any remedy against the husband, should be without remedy against the wife.(w) (322) And an action lies against a feme covert, though the banishment be only for a limited time : this was determined in the case of Sparrow v. Comakers, (x) which was an action upon a note of 101. given by a married woman, who kept a public-house, for some malt. The defence relied on was the defendant's coverture. But, upon the trial, the plain- tiff proved that her husband had been transported, and his time was not expired. The question was, whether she was liable. Yates, Just, thought that the Court must consider the transportation as suspending her disability. A ver- dict was accordingly found for the plaintiff. *The principle of this rule of law has also been extended to cases where the husband has resided abroad, without any probability of returning to Eng- (v) Candell v. Shaw, 4 Term Rep. 361. Rep. 400. Mo.85. 1 Bulst. 140. 3 Bulst. Beard and Wife v. Webb, 2 Bos. & Pull. 93. 188. Bac. Abr. tit. Baron & Feme, M. (to) Bro. Abr. tit. Baron et Feme, pi. 66. (.i) Coram Yates, Just, on the Northern Lady Belknap's case, 1 H. 4. 1. p. 12. 2 H. Circuit, cited in 1 Term Rep. 6. 4. f. 7. a. Co. Lit. 132. b. 133. a. I Rol. connected with her business as a sole trader. M'Dowall v. Wood, 2 Nott <$• M'Cord, 242. But it is necessary that she be described, in the bond, as a sole trader; and in case of a suit against her, on such bond, that fact must be alleged ; otherwise, the proceedings will be void. Wallace v. Rippon, 2 Bay, 112. These privileges are conferred by statute. In Pennsylvania also, similar privileges, under similar restrictions, are, by statute, granted to femes covert. Burke v. Winkle, 2 Serg. & R. 189. See Valentine v. Ford, 2 Browne, 193. (222) The law seems to be well settled, that when the wife is left by the husband with- out support, and has traded as a feme sole, and obtained credit as such, she ought to be liable for her debts; and the law is the same, whether the husband is banished for his crimes, or has voluntarily abandoned his wife. Rhea v. Rhenner, 1 Peters, 105, 108. See Wright v. Wright's Ex. 2 Des. 244. Per Rutledge, Chancellor. So, where a feme covert whose husband had deserted her in a foreign country, and who had thereafter maintained herself as a single woman, and had resided in the commonwealth for live years, the husband being a foreigner, and not having been in the United States ; it was held, that she mi•) 1 Sid. 446. (j) 1 Vent. 51. 1 Mod. 25. 2 Keb. 623. 1 Mod. 25. (0 2 Sid. 109. (u) 1 Sid. 41. 1 Keb. 1. (v) 3Strn.937. Fitzg. 175. «7f. ?<5 l o22 622 Of Contracts with Infants. [Part III. eo received : but if the infant had won, he might have retained the money, and no action would have laid against him for it.(u>) But where a person under age had paid a sum of money as the consideration for granting him a lease of certain premises, but, upon his coming of age, he avoided the lease, and afterwards brought an action to recover back the money so paid: It was determined (a:) that he could not maintain such an action. And Gibbs Ch. J., in delivering the judgment of the court, said, " It is quite clear that a person who accepts a lease during his infancy, may avoid it after he becomes of age, and before confirmation. But he has merely an election to avoid it. He may avoid the performance of the covenants contained there- in, or the payment of rent, but he can go no fnrther. But with respect to the consideration that an infant may have given for a lease, he is not by law entitled to recover it back, although there may be a complete failure of such consideration by subsequent events ; for an infant having paid money as a consideration for a lease, is confined to his election of retaining the lease, or putting an end to it, but cannot recover back the money paid for it. I have not been able to find any case where an action at all analogous to the pres- ent has ever been brought, but in^that of Drury v. Drury, (y) which was afterwards carried to the House of Lords, under the name of the Earl of Buckinghamshire v. Drury, (z) the question was, whether a woman married under the age *of 21, having before such marriage a jointure made to her in bar of dower, was thereby bound and barred of dower within the statute of the 27 Hen. 8. : and it was judged that that statute extended to adult women only, in- fants not being particularly named ; and therefore that notwithstanding a join- ture on an infant, she might waive the jointure, and elect to take dower. That point was determined by Lord Norlhington.t^) And it further appears from a MS. note of Mr. Justice Wilmot,(a) that Lord Hardwiche and Lord Mans" field were of that opinion, and that Lord Mansfield in delivering his judgment in that case, said, " that infants were not bound by their agreements, was nev- er held universally any where in the world ; that by our law some agreements bind absolutely, some are void, some are voidable ; that if the transaction were fair, a bargain and sale of lands by an infant for necessaries would be good, that infancy never authorized fraud, as if goods were delivered to an infant and he embezzled them, trover would lie against him; or if he took an estate, and was to pay rent for it, he should not hold the estate, and defend himself against payment of the rent by pretence of infancy, but that if an infant pays money with his own hand, without a valuable consideration, he cannot get it back again, and that if he receives rent, he cannot demand it again when of age." What then is the point in this case 1 The plaintiff during his infancy paid a sum of money to the defendant for a valuable consideration, namely, the granting of a (w) Cited in 2 Stra. 937. Fitzg. 279. Notes of Opinions and Judgments, 177. 2 (x) Holmes v. Blogg, 2 Mo. Rep. 552. Eden's Rep. GO. (y) Hil. 1 Geo. 3."before Lord Northington. (t) Vide Wilmofs Notes of Opinions and 2 Eden's Cases in Chancery, 39. Judgments, 181. (z) 3Bro. Pari. Cas. 492. 2 Ed. Wilmot's (a) Ibid. 226. 2 Eden, 72. *G23 Chap. 7.] Of Contracts with Infants. 623 lease, from which he received a benefit for a certain period. Lord Mansfield? s dictum, therefore, goes far beyond the present question, and it appears not only to have been his positive opinion, but is expressly referred to and approved of by Mr. Justice Wilmot ; and as no objection appears to have been since raised to it, it may very fairly be adopted in the present instance, and on that ground, therefore, we are of opinion that this action cannot be maintained, the payment in question having been made by the plaintiff during his infancy. 2. Of Contracts for Necessaries.] — It is clearly agreed in all the books, that if an infant makes a contract for necessaries, it is neither void nor voidable ;(6)(232) indeed, if this could be done it is truly observed, (c) "that miserable must the condition of minors be ; excluded from the seciety and commerce of the world ; deprived of necessaries, education, employment, and many advantages, if they could do no binding acts. Great inconvenience must arise to others, if they were bound by no act. The law, therefore, at the same time that it protects their imbecility and indiscretion from injury through their own imprudence, *enables them to do binding acts for their own benefit, and, without prejudice to themselves, for the benefit of others." Therefore if an infant contracts for his necessary diet, apparel, washing, lodging, or education, it shall bind him. (d) So, if he contracts for physic, or for his cure with a surgeon when he is wounded, (c) Or, if he be a housekeeper and contracts for necessaries for himself, his wife, and family. (/) But an infant is not liable for necessaries provided in order for his mar- riage.^) Nor upon a contract to pay so much per annu?n for his diet and schooling, (h) So, a promise by an infant, in consideration that A. had expend- ed 71. for his diet and teaching, to pay him that sum, is not binding upon him. (i) But instructing an infant in a useful trade, seems to fall within the description of necessaries, (k) A captain in the army, being under age, is liable to pay for a livery ordered for his servant, as necessaries, but not for cockades ordered for the soldiers of his company. (I) So, a member of a volunteer corps being an infant is liable for regimentals furnished him during his nonage, (m) But a chronometer is not a necessary for a lieutenant in the navy.(?*) In all cases it must appear that the articles furnished were actually necessary, and suitable to the infant's estate and condition, of which the court and jury (b) Co. Lit. 172. a. (h) 1 Rpl. Abr. 729. 1. 35. Pal. 52S. (c) Per Lord Mansfield. 3 Burr. 1801. (i) Sir W. Jones, 182. (d) Co. Lit. 172. a.' Sir W. Jones, 146. 1S2. (k) See Woodeson's Lee. 402. n. f. 1 Rol. Abr. 729. 1. 5, 6. 30.35. Latcli. 157. (/) 8 Term Rep. 578. See also Cart. 215. Dy. 104. b. in inarg. 1 Sid. 112. Mar. 40. (m) Coates v. Wilson, 5 Esp. Rep. 152. (e) Co. Lit. 172. a. Pal. 528. (h) Verrolles v. Ramsey, Holt's Ni. Pri. (/) 1 Sid. 112. Cart. 215. 1 Stra. 168. Rep. 77. (ff) Ibid. (232) See Rainwater v. Durham, 2 Nott & M'Cord, 524. Reeve's Dom. Ret 227. Hull's Ass. v. Connolly, 3 M'Cord, 6. Beeler v. Young, 1 Bibb, 519. Baker v. Lovett, 6 Mass. Rep. 80. Per Parsons, Ch. J. 624 Of Contracts with Infants. [PM III. will determine ; (o)(233) and the law distinguishes between persons as to the fitness of necessaries ; as, for instance, between a nobleman and a gentleman's son : so also, as to the time and place of education ; as at school, Oxford, and the i?ins of court, (p) An infant who lives with, and is properly maintained by her parent, cannot bind herself to a stranger for necessaries. (234) Thus, in the case of Bainhridge v. Pickering, (q) which was an action for feathered caps, and other ornamental apparel sold to the defendant, who at the time of the sale was an infant, and lived with her mother. Gould Just, said, " If an infant lives with her parent, who provides such apparel as appears to the parent to be proper, so that the child is not left destitute of clothes, or other real necessaries of life, I apprehend that the child cannot bind herself to a stranger even for what might otherwise be allowed as necessaries : for no man shall take upon him to dictate to a parent what clothing the child shall wear, at what time they shall be purchased, *or of whom. All that must be left to the discretion of the father or mother. And as there is not here any pretence but that the child was decently provided by the mother, I think we should give no countenance to such persons as inveigle young women into extravagance under the pretext of furnising them with necessaries, without the previous consent of the parent." So, it is incumbent on a tradesman before he trust an infant with what may appear to be necessaries, to inquire whether he is provided by his parents or friends . as was determined in the case of Ford v. Fothergill,(r) which was an action of assumpsit Sox: work and labour as a tailor. The facts were these; the defendant, being under age, came to the house of the plaintiff in company with a gentleman who was previously a customer of his, and ordered a coat, waist- coat, and two pair of breeches, which were to be sent to the Grecian Coffee- house, and "were accordingly sent there. The defendant proved, that at this time he was provided by his father with all things necessary for his support. He had been very extravagant, and his father had, in the course of the year 1793, when this debt was contracted, paid many other debts contracted with other tailors to a large amount. Lord Kenyon Ch. J. said, " Nothing is clearer in the law than that an infant cannot contract a debt except for necessaries. It is absolutely necessary that he should have the power of making that contract, otherwise he would starve. As to the plaintiff not knowing his fortune it is no (o) Bac. Abr. tit. Infancy and Ace, I. ( may be sustained. Beeler v. Young, 1 Bibb, 519. SteKnapp v. Croibij, 1 Mass. hen. 479. # 5S3 626 Of Contracts with Infants. [Part III. upon a bill of exchange or other negotiable instrument, (y) So, if money be actually laid out and expended in the purchase of necessaries for an infant, he shall be liable for the amount so laid out. (z) So, money paid for an infant to procure his liberation from an arrest for a debt contracted for necessaries, may be recovered against him by action at law. (a) But though an infant may bind himself in a single bill for necessaries, yet if he enter into an obligation, and a penalty be annexed to it, such obligation is void : Thus in the case of Ayliff v. Archdale,(b) where it appeared upon demurrer, that the plaintiff had paid certain money for the necessary meat and drink of the defendant, being an infant, and took an obligation in the double sum for the payment thereof; and whether this were good or voidable was the question. The whole court held it to be void : but if the plaintiff had taken an obligation of the very sum which he laid out for his necessary main- tenance, it had been otherwise. If, *however, an infant and a surety enter into an obligation with a penalty for necessaries found for the former, the bond will bind the surety, although it will not bind the infant. It is also said,(c) that if an infant becomes indebted for necessaries, and enters into a bond, with a penalty for the amount, this shall not drown the simple contract, because the bond has no force. So, if one lends money to an infant, who actually lays it out for necessaries, yet this shall not bind the infant, nor subject him to an ac- tion, for it is upon the lending that the contract must arise ; and the law will not intrust an infant with the application and laying out of money ; and the in- fant's applying it afterwards for necessaries, will not, by matter ex post facto* entitle the plaintiff to an action, (d) So, an insimul computassit, or account stat- ed, lies not against an infant, though the particulars of the account be for ne- cessaries ; for the law consider an infant as not having sufficient discretion to agree to an account, and the assumpsit is upon the account.(c) 3. Of Contracts made with Infants out of England.] — If an action be brought against an infant upon a contract made with him in Scotland, to which infancy is pleaded, or given in evidence under the general issue, the de- fendant, at the trial, must be prepared to prove, what the law of that coun- try is in regard to infants, otherwise he will be liable. Thus, in the case of Male v. Roberts,(f) which was an action of assumpsit for money paid, laid out, and expended to the use of the defendant, money lent and advanced, to which the defendant pleaded the general issue of non assumpsit. The case, as opened by the plaintiff's counsel, was, that the plaintiff and the defendant were per- formers at the Royal Circus ; while the company were performing at Edin- burgh, in Scotland, the defendant had become indebted to one Cockburn for li- quors, of different sorts, with which Cockburn had furnished him ; not having (y) See Williams v. Watts, 1 Campb. 552. also Fisher v. Mowbray, 8 East Rep. 330. ] (z) 5 Mod. 363. 10 Mod. G7. 12 Mod. (c) Bac. Abr. tit. Infancy and Age, I. 1. 1 9 J ' () Tubb v. Harrison, 4 Term Rep. 118. see2Saund. Rep. 1 17. f. 1. 2. Stra. 784. (»/) 4 East Rep. 7G. (238) See Arnold v. Sandford, 14 J. R. 417. An infant can appear by guardian only, tbe power of appointing whom, ad litem, is incident to all courts. Mocfcey v. Gray, 2 J. R. 192. See also, Knapp v. Crosby, 1 Mass. Rep. 479. Where an infant, in a suit against him, ap- pears personally, the error is fatal. Sliver v. Shelback, 1 Dall. 165. Moore v. M'Ewcn, 5 Serg. & R. 373. (239) See ante, notes (233) (234). 77 *630 630 Of a Parent's Liability for Necessaries. [Part III. did not appear to have any substance of his own, having been obliged to sell a small estate, which he had at the time of his marriage, to satisfy cer- tain creditors to whom his wife had bound herself for her former husband's debts. But she had a freehold estate of about ] 00/. per annum clear value, with a house upon it, in which she and her children were living when she mar- ried the plaintiff, and in which they all continued to reside for some years, till the defendant left them, when about the age of nineteen. This estate of hers, and the fortune of the defendant and the rest of her children came to them by the will of her uncle, whereby he devised all his messuages, lands, &c. at Wickham, to certain trustees, in trust, to pay the clear rent and profits to his niece Ann, the wife of John Martin, during her life, for her own separate use ; remainder to certain of her children. He then devised about 207. a year in land to each of her children, (including the defendant,) with a proviso incase of the death of any of the children before the age of twenty-one years respectively, without leaving issue of their body, that the estate so given to the child so dy- ing was to be sold by the trustees, and the money to be shared among the sur- vivors, as and when they should respectively come of age. And to each of the children was further given a legacy of 500/., and the testator directed the same, with the accumulating interest, to be r paid as and when they should respec- tively attain the age *of twenty-one years, with the same proviso as before in case of the death of either before age. It also appeared that the plaintiff had brought up the children, and given them boarding in a manner suitable to their expectations, but beyond *\vhat could have : been expected of him, upon a sup- position that no provision was made for them out of which he might thereafter be reimbursed when they came of age. A sister of the defendant, who still lived in the plaintiff's family proved that in a conversation with the defendant, in which she had mentioned her own intention of paying for her board, the de- fendant said that he should have paid the plaintiff, but for his elder brother, who had advised him not to do so. The plaintiff's claim was at the rate of twenty guineas a-year board, washing, and lodging ; for five years and upwards. The learned judge left it to the jury, whether the plaintiff had supplied the defendant with more than his state and condition required 1 that if he had not, or to the extent at least that was necessary and proper, it was a meritorious consideration to support the promise made by the defendant after he came of age. The jury were of opinion that the expence incurred by the plaintiff in the maintenance of the defendant amounted to 20/. a-year, but that according to the defendant's state and condition there ought not to have been more than 10/. a-year expended upon him ; and therefore they found a verdict for the plaintiff for 50/. for 5 years. And the defendant had leave to move for a rule either to enter a nonsuit, if the Court thought that the action was not maintainable, or why a new trial should not be had. A motion to this effect was accordingly made in the court of King's Bench. But that Court, after argument, were of opinion that the action was maintainable ; and therefore refused the rule. Lord ElUnborough Ch. J. said : " As to the general obligation of parents *e-3i Chap. 7.] Of a Parents Liability for Necessaries. 631 and children to provide for each other, in Tubb v. Harrison,{r) which is the latest decision upon the subject, and in which the other authorities were con- sidered, it was holden to extend only to natural relations. Then the plaintiff, not standing in that relation to his wife's children by her former husband, was not bound by the act of marriage with their mother to maintain them, but stood in that respect in the situation of any other stranger. And having done an act beneficial for the defendant in his infancy, it is a good consideration for the de- fendant's promise after he came of age. In such a case the law will imply a request; and the fact of the promise has been found by the jury. The cases both at law and in equity have certainly gone on considering a child so circum- stanced as being entitled to maintenance out of the fund, and the plaintiff might have applied to Chancery for an allowance in this case : but though he did not make such application, but expended his own funds for the benefit of the defen- dant, it is a good consideration at least for the subsequent promise to repay him." Lawrence J. " The early cases referred to, (5) proceeded upon a mistake in considering the maintenance of the children as a debt of the *mother, who has married a second husband, or as a debt on her estate. The wants of the children are only a ground for an order of maintenance on the parent if of suffi- cient ability. But when she has parted with that ability by her second mar- riage she is no longer liable. The husband only takes her debts ; but this is no debt of hers. Ceasing to be of ability, the maintenance of the children could not have been enforced by an order against her, and therefore could not have been enforced at all. Then the plaintiff having conferred the benefit without any obligation, it is a good consideration for the promise by the defendant after he came of age." But, if a husband receives his wife's children by a former husband into his house, and they become part of his family, he shall be deemed to stand, loco parentis, and be liable to a contract made by his wife for their education. Thus, in the case of Stone v. Carr,(t) which was an action of assumpsit, brought by the plaintiff, who was a schoolmaster, for the education and mainte- nance of an infant child. It was proved that the child was the son of the defen- dant's wife, by a former husband. On the defendant's marriage with the child's mother, he had taken possession of a house which she occupied with her children, and which house had belonged to the first husband : the business she had carried on was continued, and the children were suffered to live with him as part of the family, and provided for by him while he was at home. For the defendant it was given in evidence, — that he was gunner of an India ship ;• that during his absence on a voyage, the boy had been put to school by his mother to the plaintiff. His counsel then contended, that as he had never made any contract, or agreement with the plaintiff, he could not be charged, by reason of any implied liability ; and cited the case of Tubb v. Harrison,(u) as in point. (r) 4 Term Rep. 118. Foley, 3!). 42. (I) 3 Eap. Rep. 1. (») Sty. 283. 2 Bulstr. 346. Comb. 321. («) Ante, G30. *632 633 Of a Parent's Liability for Necessaries. [Part III. Lor J Kenyon Ch. J. after referring to the case cited, said the present was dis- tinguishable from that : " there was no doubt if a man married a woman having children by the former husband, he might refuse to provide for them, and un- der the authority of the King v. Munden, cited in the case of Tubb v. Harri- son, he could not be compelled to do it ; but if a man did not so refuse to enter- tain them, and took the children into his family, he then stood loco parentis as to them. Such was the case here : he had so adopted them, and having gone abroad, and left them in the care of his wife, he should hold him to be bound by her contracts made for their maintenance and education. If she had any property by her first husband, the case was stronger ; for then part of the prop- erty of which the defendant possessed himself, belonged to the children : but even had their father died insolvent, it would not alter his opinion. The de- fendant on his marriage had no right to take possession of the house and business : he had thereby confounded all the boundaries of *the property, and placed himself in a state of responsibility. He therefore directed the jury to find a verdict for the plaintiff", which they did accordingly. So, if a husband, living in a state of separation from his wife, suffers his own children to reside with their mother, he is liable for necessaries furnished to the children : for, as a father, he has a right to the custody of his children, and may obtain possession of their persons by habeas corpus ; but where he does not assert that right, and suffers them to remain with their mother, he thereby constitutes her as his agent, and authorizes her to contract those debts for clothing and other necessaries ; but this is matter which should be left to the jury, (v) But where a father living in the country gives his son, residing in London, a reasonable allowance for his expences, the son is alone liable for necessaries furnished to him in London, and the father is not chargeable, (w) So, where the father of a bastard child having adopted it as his own, though no order of bastardy has been made on him, is liable for necessaries furnished the child, (or) So, an action will lie for meat and drink found and provided for a bastard child upon an express promise, (y) And so, in an action of assumpsit on an express promise to pay for the maintenance of a bastard child, of which the defendant was the putative father, it is no defence that he has since discovered that the child was not his child, (z) (v) Per Lord Eldon Ch. J. 3 Esp. Rep. (y) Per Pemberlon, Cb. J. 2 Sho. 184. 252. (:) Shaw v. Wliiteman, Peakc's Cas. N. (w) Crantz v. Gill, 2 Esp. Rep. 471. P. 29. (») Hesketh v. Gowing, 5 Esp Rep. 131. •633 AN INDEX OF THE PRINCIPAL. MATTERS, ACCOUNT STATED. Action lies for balance due upon an account stated, 417. by one copartner against his companion, lb. what is evidence of an account stated, 41S. ACTION UPON CONTRACTS AND PROMISES, within what time to be commenced, 68. ADMINISTRATOR. See Executor, AGENT. See Principal, Factor, Broker and Agent ; and Money Had and Received. AGREEMENT. See Contract. ANNUITIES, in what cases the purchase-money may be recovered back when an annuity is set aside, or avoided, 328. APPRENTICE, the master of, entitled to his earnings, for services performed for another, 527. liable for necessaries furnished his apprentice, 533. ARBITRATOR, no action lies for business done as such, 255. ATTORNIES, when entitled to sue for the recovery of their bills of costs, 247. liable to an action for negligence : but negligence is no defence to an action fur costs, 253. AUCTION, of sales by public auction, 132. employing puffers avoids a sale, lb. a bidder may retract his bidding before the hammer is down, &c, lb. AUCTIONEER, an agent for buyer and seller, 99. but his clerk is not, 103. a stake-holder of the deposit for both parties till the sale is complete, 272. may sue in his own name for the price of goods sold, 135. liable to an action for the deposit without interest, if the title be defective, &.c, 272. liable for deposit and expences if he does not disclose his principal, I 636 INDEX. AUCTIONEER, {continued.) not liable to an action by his employer for selling at the highest bidding though con- trary to private instructions, 547. liable to an action for selling the fixtures in a house after notice, lb. must declare specially in an action against his principal for payment of deposit and costs to a purchaser, lb. cannot recover against his principal the amount of auction duty paid in consequence of his own neglect, lb. B. BAIL, money paid by bail for his principal, 398. BANKRUPT, a promise to pay a debt barred by his certificate, 19. of a promise by a bankrupt or his friend when void, 54. 66. money paid by a friend to sign a certificate, &c. when recoverable back, 3 63. BARGAIN AND SALE OF GOODS WITHOUT DELIVERY, 131. BASTARD CHILDREN, who liable for necessaries found for, 638. BILLS OF LADING, sale oi goods by transfer and indorsement of, 160. in whom the property of goods is vested, lb. BRICKS, sale of under the statutable size, void, 66. BROKER. See Principal, Factor, Broker and Agent. BUILDER. See Carpenter and Builder. (CARPENTER. See Services and Works.) where work is done under a special contract and for a fixed price, any deviation o r extra work does not avoid the contract, 236. in an action for work and labour and materials, the employer may shew the badneda thereof so as to reduce the quantum of price, &c, 239. CARRIERS, who are deemed common carriers, and their liability for the loss of goods, 568. By land, how far deemed in the nature of insurers against fire, robbery, &c. 569, &c. bound to deliver goods to the premises of the consignee, 5S0. what shall be deemed a delivery and acceptance of goods by a carrier, lb. of notices by carriers limiting or exempting themselves from the general law liability, 573. in what cases liable, notwithstanding such notices, either by accepting the goods with. out knowledge of their value, or in consequence of gross negligence, &c, 577, 8. by whom the action must be brought, in case of loss or damage of goods, 582. general lien upon goods, 584. By water, liable for loss of goods, 585. of their exemption in particular cases- by reason of the exception in a bill of lading, and by acts of parliament, 537. to 591. CLERGYMAN. See Services and Works. INDEX. 637 COHABITATION, agreements for future cohabitation void : but not a promise by way of reparation for past seduction, 55. COMMISSIONERS TO EXAMINE WITNESSES. See Services arid works. CONCEALMENT, of material circumstances vitiates a contrac c if done fraudulently, 59. CONSIDERATION, various kinds of, to support a pomise, 7. CONSTRUCTION OF CONTRACTS, 23. CONTRABAND GOODS. See Smuggling. CONTRACTS AND PROMISES, of the nature and parts of a contract and promise, I. parties to, 6. express and inplied contracts and promises, 3. must be made upon a good consideration, 7. ought to be obligatory on both parties, 2. of the construction of, 23. a penalty or stipulated damages, 23. cancelling and rescinding a contract, 38. performance of, 40. stamping of, 44. illegal at common law, 63. by the statute law, 59. limitation of actions upon, 68. CONTRIBUTION, between cosureties, 401. to party walls. See Party Walls. COUNSEL, can maintain no action for fees, 247. not liable to an action for return of fees, &c, 233. CREDIT, on sale of goods, 179. D. DAMAGES. I See Penalty and Stipulated Damages. DEBTOR AND CREDITOR, if upon a composition a creditor obtains more money from his debtor than the amount of the composition he is liable to refund it, 368. DECEIT, obtaining goods upon pretence of a sale, &.C., 116, 168. DEL CREDERE COMMISSION. See Principal and Factor. DEPOSIT MONEY. See Sales, <$-c. Money Had and Received. DISTRESS FOR RENT, if upon a distress and seizure of the goods of a tenant, a parol promise by a third per- son is made to pay the arrears on giving up the goods, it is valid and need not to be in writing, 221. DRUGS, sale of prohibited drugs to a brewer void, 65. E. EARNEST. See Sales. 638 INDEX- EAST INDIA COMPANY, their sales, &c, 135. ship, sale of the command of, void, 451. EAST INDIES, trading to, by private persons, 65. ELECTION, treating at an election, and contracts made thereon, void, 66. providing hustings or booths, &c. at whose expence, 260. ENEMY, trading with an enemy, without the king's licence, void, 57. EXECUTION, a verbal promise by a third person to pay a debt, in consideration of giving up goods seized on execution, valid, 221. EXECUTOR AND ADMINISTRATOR, a verbal promise by, to pay the debt of the testator or intestate, void, 8. F. FACTOR. See Principal and Factor. FAIRS, sale of goods in, 166. FATHER AND SON, a father is liable for necessaries furnished to his son, 629. but not liable whilst the son is living from his father, if the latter makes a proper allowance to his son, 633. not liable to provide for his wife's children by a former marriage, but they are liable to him, 630. he is, however, liable to tradesmen supplying them with necessaries whilst living with him, 632. if a son, under a general authority from his father, receives money from a debtor, the latter is discharged though the son misapplies the money, 550. if a trader, upon a misrepresentation by a father respecting his son, an infant, is induced to trust the son with goods, and they afterwards come to the use of the father, he is liable for the amount to the trader, 169. FEME COVERT. See Married Women. sole trader in London liable to be sued as a feme sole in the city courts, 599. FORBEARANCE TO SUE, a promise to pay a debt of a third person, in consideration of forbearance not to sue &c. must be in writing, 190. FORESTALLING, ILLEGAL, 65. FRAUD, contracts infected with fraud are void, 58. deceitfully obtaining goods under a pretenoe of sale, &c, 175. fraudulent representations or concealment, 59. FRAUDS, STATUTE OF, Relating to the sale of goods for the price of 10J. and upwards, the buyer must either accept part, or give something in earnest, or sign a note in writing by the party or his agent, 82. public stock, &c. not goods, 84. executory and executed contracts within the statute, 82. goods in esse, and in a fit state of immediate delivery, at the time of sale, within the statute, but otherwise not, 83. INDEX. 639 FRAUDS, STATUTE OF, (continued.) a contract for several distinct articles amounting to 10/. is within the statute, 86. an actual delivery not necessary where the goods bought are ponderous, or in a public warehouse, &c, 87. but there must be either an actual or symbolical delivery, and an acceptance affirm- ing the contract, so as to make a change in the property, &c, lb. 91. If an absolute contract be made for one article, and a conditional contract for an- other, at one and the same time, they are two contracts, and an acceptance of the first article will not assist the second contract, so as to prevent the operation of the statute, 9r. a parol dispensation of the terms of delivery does not avoid the contract, 92. a delivery of goods to a carrier sufficient, lb. what shall be a sufficient delivery upon a sale by sample, 94. what is a sufficient payment of part of the price, or of giving something by way of earnest, 95. the note in writing need not be in any particular form of words, lb. the agent need not be authorised in writing, 98. he must be unconnected in interest with the contract ; therefore a buyer and seller cannot act as agent for each other, lb. a broker or auctioneer employed to sell is deemed agent for both parties, 99. but an auctioneer's clerk is not, 103. of a broker's bought and sold note, lb. Relating to promises by an executor or administrator. a promise by an executor to pay the debt of his testator, unless in writing, will not charge him personally, 8. Relating to promises to be answerable for the debt, default or miscarriage of another. A promise to be in any manner answerable for the debt or default of another must be reduced into writing and signed, and the consideration stated, 190, 200, 207. So, for money or goods supplied to another, 192. where the party promising is in any manner, liable to the original debt, &c. the stat- ute does not apply, 195. nor where the consideration for the promise is made to the party promising, 196. Relating to an agreement not to be performed within a year, 231. Relating to promises to pay money in consideration of marriage, 456. G. GAMBLING CONTRACTS, made under colour of sale of goods, void, 58. GAMING, contracts and promises for money won at play, and all securities, void, 61. but money lent to play with or to pay a gaming debt is legal, 385. GAOLER. See Money Had and Received. GOODS. See Sales. GUARANTEE OR PROMISE TO BE ANSWERABLE FOR THE DEBT,&c. OF ANOTHER. of the general nature of a guarantee, 1 90. statute of frauds relating thereto, lb. of the construction of a guarantee, 207. what amounts to an unaccepted guarantee, lb. 78 640 INDEX. GUARANTEE, {continued.) when it Bhall extend to a past, present, or future debt, or supply of goods, &c. 209. when given for the benefit of a country bank, to holders of notes, lb. when a continuing guarantee, 210. of a guarantee given to a partnership firm and its duration, 212. of the effect of a recital in a guarantee, 210. of promises to be answerable for the debt or default of another, in consideration of forbearance to sue, or of discharging the debtor, or of giving up securities, &c. when valid, 213. to pay a precedent debt, &c. in consideration of proving it due upon oath or of fail- ing to prove it paid, &c. 220. to pay a debt on delivering up goods distrained for rent, or taken in execution, &c. 221. of agreements made with sheriff's officers, gaolers, &c. to put in bail for, or pay th« debt, &c. of another, 223. what shall amount to a discharge of a guarantee, by extending the time of credit, or taking fresh securities, 224. by not complying with the terms of it, 225. fraudulent concealment of facts, 226. of laches in not giving notice of the default of the principal, &c. lb. by bankruptcy, lb. of payments made by the principal whilst a guarantee is continuing, and of the appli- cation of such payments, 227. of notice to a surety of the default of the principal, 229. H. HUSBAND AND WIFE, All the personal property of the wife at the time of marriage ia vested in the husband, 596. so, debts owing to her, or other choses in action when reduced into possession by action, but not otherwise : for upon his death they survive to the wife, 597. so, he is entitled to his wife's earnings, lb. if her real estate be in trust, the trustee alone, and not the husband, can sue for rents wrongfully received, lb. All contracts made by the wife after marriage, charging herself or her husband, void ; except such as are made by her under his authority, and as his agent, in which case the husband alone is liable, 59S. a promissory note or bill of exchange, drawn, accepted, or indorsed by a married woman void, 598. but a contract made with the wife during marriage, which is for her benefit, may ba enforced by the husband against the person making such contract, 616. if the wife carries on business within the city of London as a feme sole trader she ia liable, by custom, to be sued in the city courts as a. feme sole for debts, &c. contract- ed by her, 599. the husband is liable to be sued jointly with his wife for all debts contracted by her before marriage ; but if not sued for during her life, he is discharged from all liabil- ity at her death, 597. he is also liable for necessaries supplied by her orders, whilst they live toge- ther, 602. whilst living in a state of separation, if the husband either leaves his wife, or, by ill treatment, compels her to quit his house, or if he turn her out of his house, he is liable for nectaries iup- INDEX. 641 HUSBAND AND WIFE, {continued.) plied to her during such separation, 602. but they must be such necessaries as are suitable to his condition and circum- stances in life, 607. but if she departs from her husband voluntarily, and without cause, and con- trary to his will, and he warns persons not to trust her, he will not be lia- ble, lb. if, however, she returns to her husband, and he refuses to receive her, he is lia- ble for necessaries furnished her after such refusal, C03, 608. so, if he has once paid for necessaries whilst living apart, he continues liable until express notice be given not to trust her, &c. 608. If they separate by mutual consent and agreement, or by deed of separation, and the wife has a separate maintenance secured and regularly paid to her, the husband is not liable, 610. ■o, if they are separated o mensa et thoro by sentence, 615. so, if she elopes from her husband and lives in a state of adultery, 6he thereby forfeits all claim to maintenance, and the husband is wholly discharged, even though she is willing to return, &c. 613. the wife is liable to be sued as a. feme sole upon contracts made by her, where her husband has abjured the realm, and is living in exile, &c. 599. but a mere temporary absence not sufficient to charge her, 602. money lent to the wife at the request of the husband, is money lent to him, and should be so stated in pleading, 606. the husband is liable for the expences of the funeral of his wife during his ab- sence, lb. how husband and wife must sue and be sued, 616. if a man and woman live together, and pass as husband and wife, though unmarried, the man is liable for contracts entered into by her, in the same manner as if they had been actually married, 615. I. ILLEGAL CONTRACTS AND PROMISES, void at common law, 53. by statute law, 59. in what cases money paid upon an illegal contract may bo recovered back. Sea .Mo- ney Hod and Received. IMPLIED CONTRACTS AND PROMISES, 4. INFANT, all contracts with an infant, except for necessaries, voidable, 618. not liable for goods supplied or work, done, though a trader, if under age, lb. not liable as an innkeeper upon the custom of the realm, 619. drawing, accepting, and indorsing a bill of exchange by, void ; but all adult parties thereon, as upon all other contracts, are liable, lb. the contract of an infant cannot be converted into a tori, so as to make him liable thereon, lb. but he is liable for money wrongfully received, 620. and in detinue for the detention of goods, lb. liable for necessaries furnished suitable to his estate and condition in life, 623. regimentals for a member of a volunteer corps, and a livery for the servant of a captain, deemed necessaries, 624. but not cockades for his soldiers, lb. if maintained by his parent he will not bo liable ; and if h« lives apart from 642 INDEX. INFANT, (continued.) them, and is allowed a reasonable maintenance, the parent is not liable, 625. liable for board and education, unless placed out by his parent or guardian, 624. for a fine on admittance to a copyhold estate, 626. of his liability upon a single bill for necessaries, &c, lb. but not upon a bond with a penalty, nor upon an account stated, &c, 626, 627. liable upon a contract made abroad, unless it be shown that by the foreign law he is not liable, 627. if, after coming of age, he voluntarily makes an absolute or conditional promise to pay a debt contracted during infancy, he is liable, 62S. INFORMATION, no action will lie for giving information leading to the discovery of property, &c, 262. INSIMUL COMPUT ASSENT. See Account stated. INTEREST, on what debts and contracts interest is recoverable, 420. L. LANDLORD AND TENANT, of the landlord's right to recover rent upon an execution, 353. LETTERS. See Stamps. LIEN, of the vendor's right of lien upon the sale of goods, 152. LIMITATION OF ACTION, STATUTE OF, within what time an action must be brought upon a contract or promise, 68. where the parties are abroad at the time of the contract, 72. what acknowledgment or promise is sufficient to take it out of the statute, 69. to what persons the statute does not extend, 72. statute does not take effect till the cause of action is complete, lb. LiaUORS, sale of, when void, 67. LOTTERY. See Money Had and Received. contracts for the sale of tickets or shares in private lotteries, void, 63. M. MAINTENANCE, of suits, illegal, 63. MARKET OVERT, sales in, 166. MARRIAGE, restraint of, void, 455. action lies for breach of promise of marriage, 453. marriage brokage contracts void, 56. of promises to pay money in consideration of marriage, 456. MARRIED WOMEN. See Husband and Wife. MARRY, CONTRACTS TO, 453. INDEX. 643 MASTER AND SERVANT, master, liable upon contracts made by his servant under his authority, 521. so, upon bills of exchange or promissory notes, drawn, accepted, or indorsed by the servant, by his master's authority, lb. if a servant take in payment of a debt, a bill instead of money, the master is not bound by it, 526. the master gives notice not to trust his servants, or if he deals in general for ready money, and the tradesmen give credit, the master is not answerable, 523. a master may maintain an action for the earnings of his apprentice ; but it is doubt- ful whether he can maintain such an action for the earnings of an hired servant who has been seduced from his service, &c, 527. servant liable to an action, at the suit of his master, for negligence, 528. wages, action for, 529. a servant at a particular fixed salary, is not entitled to any increase for extra duty, &c, lb. slave coming into England, and serving his master, not entitled to wages, lb. contract to pay a certain sum per annum for services to be performed, is an entire contract, and no action lies till the end of the year, lb. but in the case of domestic servants, the general custom, sanctioned by law, is, to pay a servant for the period of time he actually serves his master, and such service may be dissolved by a month's notice, 530. and if a master turns away his domestic servant without a month's warning, he is liable to pay a month's wages, unless by the servant's misconduct he is justified in turning him away, lb. as to a master's liability to provide medicines, &c. for his servant during sickness, 531. and necessaries for an apprentice, 533. MISTAKE. See Money Had and Received. MONEY HAD AND RECEIVED, action of indebitatus assumpsit, general nature and advantages of this form of action, and when it lies, £67. in what cases money received, belonging to, and which ought to be paid ovor to another, or to be applied to a particular purpose, may be recovered from the receiver in this form of action, 269. lies for money, or for goods, &c. converted into money, 275. money received by bankers or others, upon or in respect of bills of ex- change, promissory notes, and other securities, 282. money received on post-dated checks, bills, &c, or with fictitious or forged names thereon, 290. money due from one person to another which is directed and appro- priated to be paid to a third person, 278. money deposited with a stakeholder, 221. money received by, or from agents, servants, and others, acting for their principals, 297. money received upon contracts which have been rescinded or not performed, viz. upon the sale of lands or houses, 304. cattle or goods, 319. ■ annuities, 328. upon a contract for some particular act to be done, or benefit to be derived, but which has failed, 322. 644 INDEX. MONEY HAD AND RECEIVED, (continued.) but this form of action will not lie whilst the contract remains open, or not put an end to, 804. trust money, 301. the produce of an adventure in the southern whale fishery between a captain and his crew, 302. money paid and received under a mistake, and in ignorance of the law and fact, 335. premiums of insurance, and in what cases recoverable back, 334. does not lie to recover back money voluntarily paid, by a party, who either has full knowledge of all the circumstances, or having the means of know- ledge, neglects making a due enquiry, &c, 338. in what cases it lies to recover back money received, upon compulsory payments, made upon a pledge of goods, 339. for an excessive fine upon admittance, 340. under legal process, 341. a threat of action, or distress, &c. 345. colour of process, or by excess of authority, 346. mala fide, and obtained by deceit, misrepresentation, or other fraudulent means, 348. under a void authority, judicial or otherwise, 347. money wrongfully received by a creditor from a bankrupt or in- solvent, or his friends, by means of undue advantage or op- pression, and in fraud of other creditors, 368. in what cases money received by or from sheriffs, bailiffs, gaolers, or their deputies, may be recovered back, 351. money received by a receiver-general of a county, or by revenue or other public officers, either by mistake or mala fide, 356. excess of toll received by toll-gate keepers, 359. action of indebitatus assumpsit, for money received by parish officers for the maintenance of bastard children, 360. in what cases it lies in respect of fees or accustomed dues received and claimed in right of a public office, 377. or for shares of prize-money received, 380. money received upon illegal contracts, 1st. between persons in pari delicto, 361 . 2d. not in pari delicto, lb. for excess of interest, 365. upon illegal wagers, 371. insurances, 374. MONEY LENT AND ADVANCED, action of indebitatus assumpsit lies for money lent by one person to another, 382 . or where it is lent to a third person at the request of another, lb. on a pledge, 383. ■ to game with, or to pay a gaming debt, 385. a loan of stock in the public funds not recoverable in this form of action f 384. money lent to pay on account of illegal stock -jobbing transactions not recovera- ble, 388. INDEX. 645 MONEY PAID, action of indebitatus assumpsit for money paid, laid out, and expended for another, at his request, 390. of voluntary payments, 392. if goods of a stranger are distrained for arrears of rent, and he pays the arrears, in order to redeem his goods, he may maintain this form of action against the tenant, 393. by a tenant against his landlord for landlord's taxes paid by him, lb. for money paid upon an accommodation acceptance, or other securities, &c, 395. or for the amount of a bill paid for the honor of the drawer, 393. of money paid by a surety for his principal, lb. of contribution between sureties, 401. the members of a club, 404. towards building a party-wall, lb. between co-tort feasors, 403. of money paid by sheriffs or their officers, 415. no action lies to recover back money paid in consequence of neglect of duly, lb. N. NECESSARIES. See Husband and Wife. — Infants. NUDUM PACTUM, a promise made without consideration is void, as being nudum pactum, 8. O. OFFICE, in what cases the right to an office, and of taking fees in respect thereof, may be tried in an action of assumpsit, 377. sale or relinquishment of an office, in what cases void, 443. the command of an East India ship void, 451. a promise to pay money in consideration of procuring a donative, void, lb. ■ — ■ a place in a public office, 45. on a promise to pay a sum of money to desist in the application for the office of un- der-'sheriff, 452. OVERSEERS OF THE POOR, liable to a surgeon for his attendance of a pauper, 245. OWNERS AND PART-OWNERS OF A SHIP. See Carriers. P. PARDON, money deposited for soliciting a pardon not recoverable, 262. PARENT AND CHILD, liability for necessaries. See Infants. PARISH OFFICERS, of money received by them for the maintenance of bastard children, 360. 646 INDEX. PARTNERS, of the general definition of a partnership, and who shall be deemed a partner, and what will constitute a partnership, 463. of the division of profits and loss, 465. participation of profits for services, &c, 472. sub-division of profits, 474. secret and dormant partners, 470. infant partners, 482. executors, lb. what acts will make a person liable as a partner, though he neither receives profit or participates in losses, 431. of a partnership in a particular concern, 474. of unincorporated societies, 473. between stage-coach proprietors, 480. in what cases a dormant partner shall not set up a partnership so as to defeat an action brought against one holding himself out as the sole trader, 515. if one of several partners enter into a contract, or make a warranty upon a sale, &c. in the name of the firm, all are liable to a bona fide creditor who trusts the firm, 433. of a guarantee entered into by one partner in the name of the firm, 4S4. of the drawing, accepting, and indorsing of bills of exchange on joint or separate ac- count, 488. executing deeds, and releasing debts, 503. of money borrowed by one of several partners for travelling expences, 500. of the misapplication of money received by one of several partners on the partner- ship account, 501. of trust money misapplied, and used in the concern, 502. all the partners are liable for a misrepresentation made by one of them in the sale, &c. of goods, 503. of smuggling transactions, lb. one partner cannot bind his copartner by deed, &c, lb. of a change or dissolution of partnership, 505. of the payment of partnership debts after a dissolution, and of the application of such payments, 507, 509. all the members of a firm must sue or be sued for a joint debt who were in part- nership at the time it was contracted, if living, 515. how to sue or be sued in cases of bankruptcy or death, 516. of the right of set-offof mutual debts, 517. of contracts and promises between parties inter se, 51S. PARTY WALLS, when an action lies for contribution for rebuilding a party wall, 404. PAYMENT, on sales of goods, &c, 182. of the application of payments on guarantees, 227. . by partners, 507. PENALTY OR STIPULATED DAMAGES, distinction between a penalty and stipulated damages, 28. election to proceed for the penalty or general damages, 37. a party cannot recover beyond the penalty, 38. be let off from a specific performance of a contract by payment, or tendering the penalty, lb. PERFORMANCE OF A CONTRACT, 40. INDEX. 647 PERFORMERS. See Services and Works. PHYSICIANS. See Services and Works. PLEDGE OF GOODS, &c. of exorbitant interest taken upon a pledge, and when it is recoverable back, 330. PREMIUMS OF INSURANCE, in what cases recoverable back from the underwriters, in an action for money had and received, 334. PRINCIPAL, FACTOR, BROKER, AND AGENT, difference between & factor and broker, 535. general duty of a factor and agent, 536. of the business and employment of a broker, 537. appointment of an agent, and his general or limited power, &c, 533. factor, broker, and agent cannot pledge, for their private debt, the goods of their principal, 539. cannot delegate their authority, and in whose name they should make their con- tracts, lb. cannot sell on credit, except by usage of the place of sale, &c, 538. if they become bankrupt their assignees cannot take the goods of the principal, 539. but if sold and converted into money, it pases under the general assignment, 540. the'power of an agent to ,draw, accept, and indorse bills, &c. so as to charge his prin- cipal, 541, 542. the principal liable upon contracts made by a factor, broker, or agent, 541. payment or settlement with a factor, broker, or agent, when valid, 548. when a debt due from a factor or broker may be set off in an action brought in the name of the principal, 551. when the taking of a security from the agent, discharges the principal, 550. a factor or agent, acting for one who is beyond sea, may sue and be sued in his own name, 556. in what cases a factor, broker, or agent, may be personally liable, lb. not liable for money paid to him by mistake, after he has paid it over to his prin- cipal, 555. but the mere circumstance of passing such money into account with his principal is not sufficient, lb. if an agent misapplies money paid to him on account of his principal, the latter is liable to be sued for it, 545. money paid by an agent on account of his principal under a mistake may be recover- ed back by cither, 299. . of a factor's liability under a del credere commission, 546. broker's liability upon an indemnity against loss upon a rc-salc of goods 557. factors, brokers,' or agents, liable to an action for not accounting and paying over balances to their principals, 558. their liability for not insuring goods, &c, lb. right of lien on goods, 560. to commission, &c, 561. goods entrusted to an agent to sell in India, and what he should not sell to bring back to England, not being able to sell th m, lie left them with another for sale, he is not liable to an action of trover, 560. -of the countermand or revocation of the authority of a factor, broker, or agent, 545. if a stock-broker makes time bargains for his principal, and pays the difference, he cannot recover them from his principal, 561. 79 648 INDEX- PRINCIPAL AND SURETY. See Guarantee and Monty Paid. PRINTS, sale of immoral and libellous prints void, 178. PRINTERS. See Services and Works. PRIZE MONEY, Shares of, in what cases recoverable by action of indebitatus assumpsit for money had and received, 380. PROCTORS. See Services and Works. PROCURING MONEY, &c. See Services and Works. PROMISES. See Contracts and Promises. PROSTITUTION. See Cohabitation. Work done for a prostitute, such as making dresses, &.c. is not illegal, and the amount may be recovered by action, 55. PROVING A DEBT, a promise to pay a debt on proof of its existence by the party making oath of it, ii a good consideration, 220. R. RECEIVER GENERAL OF THE LAND TAX, liable to action for money received under an assessment of a jury upon a case of compensation, 356. RECOMMENDING CUSTOMERS, a promise to pay money for recommending customers, void, 59. REGRATING ILLEGAL, 65. RESCINDING OF A CONTRACT, in what cases a contract may be rescinded, 38. when money paid upon a contract which is rescinded may be recovered back. See .Money Had and Received. RESTRAINT OF TRADE. See Trade. REVENUE OFFICERS. See Money Had and Received. S. SALE AND EXCHANGE OF GOODS, &c, 130. SALE OR RETURN OF GOODS, &c, 129. SALES OF GOODS, &c, of the general rules of law relating to the sale of goods; and of gambling specula- tions, under colour of sale, 78 statute of frauds relating thereto, 81. of sales made by brokers, and of their bought and sold notes, 103. absolute and conditional sales, and of particular stipulations annexed to contracts of sale, 105. warranties by sample, 109. express and implied warranties upon the sale of goods otherwise than by sample, and of deceit in the sale of goods, 116. ♦he warranty of the soundness of cattle, 123. bv public auction, 132. of the allowance of duties thereon, &e., 136= INDEX. 649 SALES OF GOODS, (continued.) of sales by the East India Company, 135. the delivery of goods upon sales to the vendee, or to a carrier or wharfinger, &c, 136. when the vendor must insure goods sent by a carrier, &c, 140. of a symbolical delivery by giving a key or delivery order, Sue, 142. when the property in goods sold is vested in the buyer, and at whose risk they ara whilst in the possession either of the seller, or at a public or private wharf, or ware- house, 143. of the vendor's lien or right to retain the goods till paid for, &c, 152. ' right to stop goods sold, in transitu, upon the event of the vendee'e in- solvency or bankruptcy, 153. by bill of lading, 160. when the property passes by indorsement, &c, lb. in market overt and in fairs, &c, 166. obtained by fraud and deceit, and of the vendor's right to follow and sei*e them, 16$. of the sale of contraband and smuggled goods, 175. obscene and libellous prints, &c, 178. excisable goods by a person not licensed, lb. of a bargain and sale without delivery, 131 . . of a sale and exchange of goods, 130. y* ■ . return of goods, 129. of credit upon sales, 179. payment for goods sold, &c, 182. when payment may be resisted, 185. a stipulated price may be reduced to a quantum valebant, 187. in what cases money received on contracts for the sale of goods, which have not been performed, &c. may be recovered back, 304. SCHOOLMASTERS. See Services and Works. SEDUCTION. See Cohabitation. SERVANT. See Master and Servant. SERVICES AND WORKS, of employment in general, and the mode of payment, 231. the statute of frauds touching works which are not to be performed within a year, lb. of the performance of works, and payment either at a stipulated price or upon a quantum meruit, 236. in an action for reward for services, the employer may show the badness of the work, &c, so as to reduce the claim, 239. deviation from a building contract for a specific price, by additional works, &c, how the party is to be paid, 236. contracts and promises for services and works without consideration, void, 241, by surveyors, 243. surgeons and apothecaries, 244. physicians, 246. counsel, 247. attornies, solicitors, and proctors, lb. commissioners to examine witnesses, 255. arbitrators, lb. clergymen, lb. stage performers, 256. schoolmasters, 258, printers, 259. apprentices, lb, 650 INDEX. SERVICES AND WORKS, (continued.) by bailiffs of cities, &c. at elections, in providing booths, &c, 260. in procuring the sale of an estate, or'annuity, or obtaining a tenant &c, 260. 265. procuring a sum of money, 261. endeavouring to obtain a pardon, 262. for obtaining information to enable a party to receive stock, &c, lb. rendered with a view of being rewarded by a legacy or other gratuitous remunera- tion, 263. SHERIFFS. See Money Had and Received and Paid by, 353. what contracts made with sheriffs void by the common law, 56. — — — statute law, 60. SIMONIACAL CONTRACTS, void, 36. SMUGGLING, what contracts are void upon the ground of smuggling, 64. SOLICITORS. See Services and Works. SOUTHERN WHALE FISHERY, shares of an adventure between a captain and his crew, how recoverable, 302. STAGE PERFORMERS. See Services and Works. STAKEHOLDER, in what cases money had and received by him, may be recovered back, 271. STAMPS, of the stamp duty payable on contracts and agreem ents, 44. of the exemption relating to the sale of goods, 45. letters, &c, 51. what other agreements not within the stamp acts, 46. of agreements relating to different subjects on the same paper, &c., 49. of the effect of altering an agreement after it has been executed and delivered, lb. STATUTE OF FRAUDS. See Frauds, statute of, STIPULATED DAMAGES. See Pencdty and Stipulated Damages. STOCK IN THE PUBLIC FUNDS, &c. NOT MONEY, 84. contracts to aecept or replace stock, 426. STOCK-BROKER, cannot recover differences paid on time bargains for his principal, 387. 404. STOCK-JOBBING TRANSACTIONS VOID BY STATUTE, 62. SUNDAY, sale of goods in the ordinary trade of the vendor void, but not otherwise, 60. SURGEON AND APOTHECARY. See Services and Works. SURVEYORS. See Services and Works. SURETY. See Principal and Surety. SUTLERS, an agreement by a person supplying a regiment, to pay to two sutlers a certain sum per diem, for every ration they should leave in the magazine, is void, 58. T. TOLL-GATE KEEPER, taking excess of toll, 359. TRADE, an agreement for a limited restraint of trade is valid, 438. but for a total restraint it is void, lb. INDEX. 651 TRUSTEES. Sec Money Had and Received. U. USURY. See Money Had and Received. usurious contracts void, 61. taking usurious interest, when recoverable back, 365. V. VOLUNTARY PAYMENTS, 338. 392. W. "WAGES. See Master and Servant. WAGER POLICIES, illegal, 63. WAGERS, what wagers are void, 57. legal, and of actions thereon, 371. WAREHOUSEMEN, when liable for loss or damage of goods, 593. WARRANTY OF CATTLE OR GOODS. Sec Sales. WHARFINGERS, when liable for goods left at a wharf, &c, 592. WORK AND LABOUR. See Services and Works. A TABLE Explanatory of Abbreviations of References to Books IN THIS WORK. Atk Atkin's Reports. A?nbl Ambler's Reports. Andr Andrew's Reports. Bl. Com Blackstone's Commentaries. Bl. Rep Sir W. Blackstone's Reports. Bac. Abr Bacon's Abridgment. Barnard Barnardiston's Reports. Bui. Ni. Pri. . . Buller's Nisi Prius. Barn. <$• Aid. . . Barnewall and Alderson's Reports. Bro. Pari. Cas. . Brown's Parliamentary Cases. Bro. Ch. Cas. . . Chancery Cases. Burr Burrow's Reports. Bulst Bulstrode's Reports. Bos. Sf Put. . . . Bosanquet and Puller's Reports. Bro. Abr Brook's Abridgment. Brod.